Federal Register, Volume 84 Issue 13 (Friday, January 18, 2019)

[Federal Register Volume 84, Number 13 (Friday, January 18, 2019)]
[Rules and Regulations]
[Pages 138-194]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-28350]

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Vol. 84

Friday,

No. 13

January 18, 2019

Part II

Department of Veterans Affairs

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38 CFR Parts 3, 8, 14, et al.

VA Claims and Appeals Modernization; Final Rule

Federal Register / Vol. 84 , No. 13 / Friday, January 18, 2019 /
Rules and Regulations

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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: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) amends its claims
adjudication, appeals, and Rules of Practice of the Board of Veterans'
Appeals (Board) regulations. In addition, this rule revises VA's
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 implements the Veterans Appeals
Improvement and Modernization Act of 2017 (AMA), which amended the
procedures applicable to administrative review and appeal of VA
decisions on claims for benefits, creating a new, modernized review
system. Unless otherwise specified in this final rule, VA amends its
regulations applicable to all 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.
For the reasons set forth in the proposed rule and in this final rule,
VA is adopting the proposed rule as final, with minor changes, as
explained below.

DATES: This final rule is effective February 19, 2019.

FOR FURTHER INFORMATION CONTACT: Veterans Benefits Administration
information, parts 3, 8, and 21: 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). Regulation of legal representatives'
information, parts 19 and 20: 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: On August 10, 2018, VA published in the
Federal Register (83 FR 39818) a proposed rule to implement Public Law
(Pub. L.) 115-55, the AMA. The AMA and these implementing regulations
provide much-needed comprehensive reform for the legacy administrative
appeals process, to help ensure that claimants receive a timely
decision on review where they disagree with a VA claims adjudication.
The AMA review procedures and these regulations replace the current VA
appeals process with a new review process that makes sense for
veterans, their advocates, VA, and stakeholders.
The statutory requirements, which VA implements in these
regulations, provide a claimant who is not fully satisfied with the
result of any review lane additional options 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, the
claimant has two further options. If the Board's decision helped the
claimant understand the evidence 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. A claimant in
this situation could instead appeal within 120 days of the Board
decision to the Court of Appeals for Veterans Claims (CAVC) in
accordance with CAVC rules and deadlines. Alternatively, a claimant
could seek review of the initial decision by filing a supplemental
claim or requesting a higher-level review in the agency of original
jurisdiction, again, without any impact on the potential effective date
for payment of benefits.
The differentiated lane framework required by statute and
implemented 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,
both 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 agency of original
jurisdiction.
To ensure that as many claimants as possible benefit from the
streamlined features of the new process, the AMA and these regulations
provide opportunities for claimants and appellants in the legacy system
to take advantage of the new system. Some claimants who received a
decision prior to the effective date of the law and thus had a legacy
appeal pending, were able to participate in the new system by way of
VA's Rapid Appeals Modernization Program (RAMP). Claimants who receive
a Statement of the Case (SOC) or Supplemental Statement of the Case
(SSOC) as part of a legacy appeal after the effective date of the law
will also have an opportunity to opt-in to the new system.
Most of the regulatory amendments prescribed in this final rule are
mandatory to comply with the law. Through careful collaboration with
VA, VSOs, and other stakeholders, in enacting the AMA, Congress
provided a highly detailed statutory framework for claims and appeals
processing. VA is unable to alter amendments that directly implement
mandatory statutory provisions. In addition to implementing mandatory
requirements, VA prescribes a few interpretive or gap-filling
amendments to the regulations, which are not specifically mandated by
the AMA, but that VA believes are in line with the law's goals to
streamline and modernize the claims and appeals process. These
amendments reduce unnecessary regulations, modernize processes, and
improve services for claimants.
Interested persons were invited to submit comments to the proposed
rule on or before October 9, 2018, and 29 comments were received. Those
comments have been addressed according to topic in the discussion
below. This final rule contains amendments to parts 3, 8, 14, 19, 20,
and 21, as described in detail below.

Part 3--Adjudication

VA amends 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 VA monetary benefits (e.g.,
compensation, pension, dependency and indemnity compensation, and
burial benefits), which are administered by the VBA. These amendments
apply to claims processed in the modernized review system as described
in Sec. 3.2400.

A. Comments Concerning Sec. 3.1--Definitions

Public Law 115-55, section 2(a), defines ``supplemental claim'' as
``a claim for benefits under laws administered by the Secretary filed
by a

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claimant who had previously filed a claim for the same or similar
benefits on the same or similar basis.'' Although it is possible to
read this language as implicating both claims filed as a disagreement
with a prior decision, and claims submitted due to a worsening of a
condition, this dual interpretation would not be consistent with other
sections of the statute. Namely, Public Law 115-55 also 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.'' When both sections are read together, it
becomes clear that the intent of the law was to make supplemental
claims only applicable to situations where a claimant disagrees with a
previous VA decision and seeks review and readjudication. Accordingly,
as noted in VA's proposed regulation, VA proposed to clarify in
regulation the definition of supplemental claim. VA added to the
definition of ``claim'' in Sec. 3.1(p) of the proposed rule
definitions of ``supplemental claim,'' ``initial claim,'' and ``claim
for increase.''
VA received six comments regarding definitions listed in Sec.
3.1(p). Concerns centered around the definitions of initial claim
(Sec. 3.1(p)(1)), claim for increase (Sec. 3.1(p)(1)(iii)), claim
(Sec. 3.1(p)(2)), and supplemental claim (Sec. 3.1(p)(2)). Several
comments addressed concerns regarding the use of the term ``written
communication'' in some definitions while other areas of the proposed
rule referenced ``written or electronic'' communication. VA agrees with
the need for clarification regarding electronic communication and
revises Sec. 3.1(p) to reflect a claim as both a written or electronic
communication properly submitted on an application form prescribed by
the Secretary.
Several comments raised concerns that a claim for increase was
included as a type of initial claim and argued it is more appropriately
considered a supplemental claim. VA includes claim for increase in the
definition of an initial claim to clarify to claimants that a claim for
increase is based on a change or worsening in condition or circumstance
since a prior VA decision and not based on disagreement with that
decision. Accordingly, VA revises proposed Sec. 3.1(p)(1)(iii) to
reflect a claim for increase as a change or worsening in condition or
circumstance since a prior VA decision. One comment also expressed
concern that ``the VA may sometimes be overbroad in requiring
supplemental claims where a veteran has not had a decision on a
specific issue or disability previously.'' VA agrees there may be
confusion regarding the definition of a supplemental claim and revised
Sec. 3.2501 to clarify that a supplemental claim is based upon a
disagreement with a prior VA decision.
VA revises the definition of ``initial claim'' in Sec. 3.1(p)(1),
to provide clarity concerning the term ``original claim'' in response
to comments. Commenters expressed confusion between the terms
``original'' and ``initial'' based on dictionary definitions, which
treat them interchangeably. VA's revisions to Sec. 3.1(p)(1) explain
that an original claim is the first initial claim.
One commenter expressed a belief that the terms ``issue'' and
``claim'' are used interchangeably in sections of the proposed rule but
defined differently. It is clear from Sec. 3.151(c) that the term
``issue'' refers to a distinct determination of entitlement to a
benefit, such as a determination of entitlement to service-connected
disability compensation for a particular disability. A claim is a
request for review of one or more issues. If a claim includes only one
issue then the terms may appear to be used interchangeably.
Accordingly, VA revises Sec. 3.1(p) to include a reference to Sec.
3.151(c), which defines issues within a claim.

B. Comments Concerning Sec. 3.103--Procedural Due Process and Other
Rights

VA received eleven comments regarding procedural due process
concerns as referenced in Sec. 3.103.
Two commenters expressed concern that the use of the phrase ``when
applicable'' in Sec. 3.103(b)(1) is too broad and open to
interpretation. VA agrees that the term is vague and revises Sec.
3.103(b)(1) to refer the reader to subsection (d), which explains the
availability of a hearing.
Another commenter expressed concern with the removal of language in
Sec. 3.103(c)(2) regarding visual examinations during hearings. These
types of visual examinations are obsolete as veterans and VA can now
utilize several other methods to add visual examination findings into
the record. Claimants may use Disability Benefits Questionnaires (DBQs)
that any physician may complete to document visual findings. VA may
also assist claimants through the scheduling of 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. Accordingly, VA does not make
any changes to Sec. 3.103(c)(2) based upon the comment.
Several comments raised concerns regarding Sec. 3.103(c)(2),
Treatment of evidence received after notice of a decision. The concerns
centered around the desire for VA to notify claimants in writing each
time VA does not consider evidence received after notice of a decision,
when the record is closed. The commenters are correct that VA does not
intend to notify a claimant every time the claimant submits evidence
during a period when the record is closed. Rather, the initial notice
of decision provided to the claimant will explain the review options,
the associated evidentiary rules, and the procedures to follow to
obtain VA consideration of new evidence. In addition, VA will, in
accordance with the AMA and Sec. 3.103(f), provide information to the
claimant in the initial decision as to evidence that was considered,
and any subsequent review decision, based on a closed record, will
inform the claimant generally if VA received evidence that was not
considered. Finally, decision notices will provide to claimants
instructions for how to obtain or access the actual evidence used in
making the decision (the complete record on which the decision was
based).
VA takes seriously its obligation to administer its process in a
claimant-friendly way, and accordingly provides multiple means for
claimants to obtain information on what evidence VA has received and
the date of receipt to determine if it was submitted when the
evidentiary record was open or closed. Most fundamentally, claimants
are able to request a copy of their own claims files. Additionally,
accredited representatives are eligible to receive access to the
Veterans Benefits Management System, which enables them to see what is
in the file at any time. And a claimant can visit the VBA Regional
Office to view their claims file in a reading room.
Accordingly, to the extent a claimant is unsure whether a given
piece of evidence was considered the claimant can check the review
decision to see whether it indicates whether there was any evidence
that was not considered. If so, the claimant can check the summary of
evidence in the initial decision notice. VA expects this to resolve the
matter in most instances. However, to the extent that the claimant
needs access to the entire record on which a decision is based, the
decision notice will describe that procedure. Finally, whenever the
claimant is uncertain, the claimant can submit the evidence in question
again as part of a supplemental claim. If this is done within one year,
there will be no loss of effective date. If

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the evidence was not considered in the prior claim and is relevant, it
would be considered in adjudicating the supplemental claim. (As
explained in the proposed rule, even if the claimant did not submit
with the supplemental claim relevant evidence previously submitted out
of time, VA would be obligated to consider it.) The law does not
require VA to list evidence not considered because it was received
after notice of a decision, or during some other period when the
evidentiary record was closed. Before the AMA, 38 U.S.C. 5104 required
VA to provide certain information only in cases where VA denied a
benefit sought: (1) A statement of reasons for the decision; and (2) a
summary of the evidence considered by the Secretary. 38 U.S.C. 5104(b)
(2016). In the AMA, Congress directly addressed the information
requirements for decision notices in a high level of detail. All
decision notices, regardless of whether or not they deny a benefit
sought, must now include seven specified data elements. 38 U.S.C.
5104(b)(1)-(7). This includes ``a summary of the evidence considered by
the Secretary[.]'' 38 U.S.C. 5104(b)(2). This extensive list of
required data elements does not include identification of evidence not
considered. It is clear that Congress directly considered the
requirements for decision notices, altered the applicable legal
requirements in ways generally favorable to claimants, and declined to
add a requirement to identify and discuss evidence not considered.
Beyond the fact that the law does not require VA to provide notice
of evidence not considered, VA declines to discretionarily impose such
a requirement through regulation. From VA's perspective, the closing of
the evidentiary record is one of the foundational features of the AMA,
and one of its most valuable in terms of enabling VA, over time, to
process claims and appeals more efficiently. Requiring VA to notify
claimants each time evidence is submitted out of time or list or
summarize such evidence individually in review decisions would dilute
much of the administrative value of having a closed record following
the initial decision. Providing this notice would require VA personnel
to review and identify or summarize (if, for example, the evidence is
not dated) late-flowing evidence when preparing the decision notice.
Such a procedure would unavoidably require ``by hand'' review and
processing of evidence by VBA adjudicators, similar to the review
required for simply considering the evidence for decisional purposes.
In this scenario, VA would be spending its limited adjudicative
resources reading and processing documents that are not part of the
record and cannot be the basis for a decision.
Apart from the work of reading and summarizing extra-record
evidence, imposing this requirement would also carry a significant cost
in terms of generating procedural complexity. A regulatory requirement
that VA identify or summarize certain evidence would, of necessity,
need to be enforceable on appeal in order to be meaningful. (Such a
notice requirement would technically be distinct from the argument on
appeal that certain evidence was excluded from the record in error,
which is an appellate argument that is certainly possible under this
final rule.) Accordingly, the argument that VA failed to provide
legally adequate notice or description of what evidence was not
considered would become a feature of the appellate system. This would
be problematic for two reasons. First, it invites appellate activity
centered on procedure rather than the substance of veterans' claims.
Second, and worse, it creates the specter of argument over the proper
discussion of non-record evidence. Evidence that is nominally not part
of the record of the decision on appeal would necessarily become
central to such an appellate argument. At that point, the evidence
would, for all intents and purposes, be part of the record, even though
the premise of the argument would necessarily be that the evidence was
validly excluded.
We acknowledge that proposed Sec. 20.801(b)(3), which we here
confirm as final, will require the Board to provide ``[a] general
statement'' that evidence received while the record was closed was not
considered. This provision, governing Board practice, is consonant with
VA's decision not to impose a requirement on VBA to list or summarize
untimely evidence. This provision is necessary to comply with 38 U.S.C.
7104(d)(2), which is specific to Board decisions. That provision only
requires a broad statement that untimely evidence was received and not
considered, rather than any meaningful engagement with that evidence,
such as a listing or summary.
VA recognizes that some individual claimants might prefer that VA
either provide notification each time it receives evidence submitted
out of time or list such evidence specifically in decision notices.
However, in balancing efficiency considerations in line with the
expressed goal of Congress to reduce VA backlogs and processing times,
VA has chosen the alternative procedures discussed above to provide
claimants with information they need to effectively prosecute their
claims without prejudice to their ability to have all relevant evidence
considered prior to a final adjudication. Accordingly, VA does not make
any changes to Sec. 3.103(c)(2) based upon these comments. As the
precise procedures for providing such notice may change based on
technological systems, as well as other resources, VA will continue to
address this matter through internal procedural guidance consistent
with the law and regulations.
Multiple commenters recommended that additional information be
included in decision notices beyond what is required in Sec. 3.103(f).
Suggestions include the compensation rating decision codesheet,
information on expected improvement in disability, and full
identification of specific evidence not considered (which we discuss
above). Current VA procedures require the inclusion of any expected
reexaminations due to expected improvement or worsening of a disability
consistent with current Sec. 3.327 and, in many instances, allow for
the inclusion of the codesheet with compensation rating decision
notices. VA has a requirement under Sec. 3.103(f)(7) to explain how to
obtain or access evidence used in making the decision. One method
authorized representatives may use to access evidence is to request
access to the claimant's electronic claims folder. Accordingly, VA does
not make any changes to Sec. 3.103(f) based upon these comments.
A commenter noted that the ``new Sec. 3.103 does not require VA to
describe evidence in its possession that it did not review'', raising a
hypothetical situation in which a claimant was treated for conditions
at a VA facility the day prior to the decision being rendered on their
higher-level review. This is a constructive receipt argument that VA
was in possession of the records from the day prior and therefore
cannot appropriately adjudicate a higher-level review without those
records, while at the same time arguing this is not ``new evidence''
used in support of a supplemental claim because the records were in
general custody of VA at the time.
VA makes minor adjustments to the rule as proposed to clarify the
parameters in this area. 38 CFR 3.103(c)(2), Treatment of evidence
received after notice of a decision, now clearly explains what may be
included in the record for adjudication. It states, ``The evidentiary
record for a claim before the agency of original jurisdiction closes
when VA issues notice of a

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decision on the claim. The agency of original jurisdiction will not
consider, or take any other action on evidence submitted by a claimant,
associated with the claims file, or constructively received by VA as
described in Sec. 3.103(c)(2)(iii), 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'' in two specific circumstances relating to the submission of a
supplemental or initial claim or identification of a duty to assist
error.
Additionally, Sec. 3.103(f)(2) identifies the requirement to
provide a summary of the evidence considered in notification of
decisions. This provides the claimant a clear understanding of what was
considered and is consistent with the definitions of evidence
reviewable under a higher-level review or supplemental claim. Under
these definitions, the evidence raised in the hypothetical situation
would be considered new evidence available to be used by the claimant
in a supplemental claim. To the extent the commenter means that
evidence created by VA shortly before the record closes but not
associated with the claims record or identified to adjudicators in any
way should be treated as constructively part of the record pursuant to
Bell v. Derwinski, 2 Vet. App. 611 (1992), we note that documents
created while the record is closed do not become part of the record by
virtue of the doctrine of constructive receipt. At the same time, if a
document created while the record was open is identified on direct
appeal as having been constructively received at a time when the record
was open (e.g., the Board or a higher-level reviewer become aware of a
document within the scope of Bell), the record can be corrected,
including in similar fashion to a duty to assist error. However, in
order for a Bell error to cause the record to be augmented in this way,
the document in question must actually satisfy the law of constructive
receipt in the VA context. Case law construing Bell makes clear that
the mere existence of a record is not sufficient to establish
constructive receipt for adjudicative purposes. Rather, VBA
adjudicators must have sufficient indication that a given record exists
and sufficient information to locate it, even though they do not have
actual custody of it, in order to trigger the doctrine of constructive
receipt in the VA claims adjudication context. See Turner v. Shulkin,
29 Vet. App. 207, 217-219 (2018). We have explicitly incorporated this
concept into the final rule at 38 CFR 3.103(c)(2)(iii). In terms of the
level of VBA awareness necessary to trigger Bell in this context, we
import a familiar standard from the duty to assist context, which is
referenced in Turner. Turner noted that 38 U.S.C. 5103A(c)(1)(B)
requires VA to obtain records of relevant medical treatment or
examination of the claimant at VA health care facilities or at VA
expense, ``if the claimant furnishes information sufficient to locate
those records.'' Turner, 29 Vet. App. at 218. There is no reason why
the doctrine of constructive receipt should be broader than VA's duty
to obtain records for the claim. While the duty to assist does not
apply following the closure of the record, it does apply during the
initial claim process when any document that could be the basis of a
constructive receipt issue would have to be created. Accordingly, we
provide in Sec. 3.103(c)(2)(iii) that VBA must have had knowledge of
the document in question ``through information furnished by the
claimant sufficient to locate those records.'' Further, we note that to
the extent a document potentially within the scope of that provision is
discovered after a claim stream has lapsed, the fact that a document
was arguably constructively part of the record before adjudicators in
the prior decision would not preclude that document as the basis for a
supplemental claim if it was not, in fact, considered. A Bell error on
the part of VA is not a basis to deprive the veteran of his or her
right to file a supplemental claim. Accordingly, Bell and the ongoing
creation of medical treatment records is not a mechanism for preventing
the adjudicative record from closing to the extent the law permits and
requires it to do so, but at the same time, does not preclude the
filing of supplemental claims. These definitions provide a clearer
delineation of what is and is not part of the evidentiary record of a
particular claim, as compared to the continuous open record of the
legacy system. Further, through the decision notice on the initial
claim, the claimant is provided a summary of pertinent evidence that
was developed as part of VA's duty to assist. When submitting a request
for ahigher-level review, the claimant has notice that the evidentiary
record will consist of the same information identified in the initial
claim decision. Any additional evidence the claimant wishes to be
considered would warrant their submission of a supplemental claim
request.

C. Comments Concerning Sec. 3.104--Binding Nature of Decisions

VA received eight comments regarding the binding nature of
favorable findings. The AMA 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.
These comments expressed concern over the lack of definition of ``clear
and convincing,'' as well as the evidentiary standard specified in the
law being a lower evidentiary standard than currently exists and less
favorable to claimants.
The CAVC in Fagan v. West, 13 Vet. App. 48, 55 (1999), clarified
that the ``clear and convincing'' evidentiary standard of proof is an
intermediate standard between preponderance of the evidence and beyond
a reasonable doubt. VA notes that the clear and convincing evidence
standard is a lesser standard than that required for a Veteran or
claimant to correct a VA error that was not in their favor, which
requires evidence of a clear and unmistakable error (CUE) (see 38
U.S.C. 5109A(a) and 7111(a)). While 38 U.S.C. 5104A states that VA must
meet a ``clear and convincing'' evidentiary standard prior to
overturning a favorable finding, nothing in the statute prohibits VA
from administratively adopting a higher evidentiary standard to protect
favorable findings on a claimant's behalf.
VA agrees with the commenters, as a matter of policy, regarding the
wisdom of setting a higher standard applicable to overturning favorable
findings as it is claimant-friendly and will reduce the number of cases
where claimants feel VA is adopting an adversarial approach to their
claim because VA has overturned a favorable finding. Accordingly, VA
revises Sec. 3.104(c) to require clear and unmistakable evidence to
rebut a favorable finding. The clear and unmistakable standard
applicable to rebuttal is similar to the definition of CUE found in
Sec. 3.105(a)(1)(i) and 38 CFR 20.1403(a) that applies to finally
adjudicated issues. However, application of the clear and unmistakable
standard for rebuttal of a favorable finding is legally distinct
because, for instance, it is limited to the scope of the favorable
finding itself and does not require a further determination that the
outcome of the benefit adjudication would undebatably change. The clear
and unmistakable rebuttal standard may be satisfied by a finding that
the evidentiary record as a

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whole completely lacks any plausible support for the favorable finding.
VA discussed in the proposed rule that no changes are necessary to
Sec. 3.105(c) through (h), which govern severance of service
connection and reduction in evaluations, and that the standards and
procedures set forth in those paragraphs will continue to apply without
change. VA received no comments on this issue, and VA's position in
this regard has not changed as a result of the choice in the final rule
to apply the higher CUE standard to rebuttal of favorable findings.

D. Comments Concerning Sec. 3.105--Revision of Decisions

Two comments expressed concern with the language in proposed Sec.
3.105(a)(1)(iv), entitled Change in interpretation, providing that a
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. As explained in the
preamble to the proposed rule, this revision to Sec. 3.105(a) is for
the purpose of conforming the regulations applicable to CUE in finally
adjudicated decisions of the agency of original jurisdiction with
existing regulations applicable to CUE in finally adjudicated Board
decisions. Accordingly, Sec. 3.105(a)(1)(iv) tracks the language in
existing 38 CFR 20.1403(e).
VA does not agree with the commenters' assertion that these
provisions are contrary to established caselaw. The Federal Circuit
explicitly rejected the premise of retroactive application of judicial
interpretations of law in the CUE context in Jordan v. Nicholson, 401
F.3d 1296 (Fed. Cir. 2005), and Disabled Am. Veterans (DAV) v. Gober,
234 F.3d 682, 698 (Fed. Cir. 2000). In DAV, the Federal Circuit
specifically upheld 38 CFR 20.1403(e). Id. In Jordan, the court
explained that ``[t]he Supreme Court has repeatedly denied attempts to
reopen final decisions in the face of new judicial pronouncements or
decisions.'' Jordan, 401 F.3d at 1299; see Reynoldsville Casket Co. v.
Hyde, 514 U.S. 749, 758 (1995) (``New legal principles, even when
applied retroactively, do not apply to cases already closed.'').
VA does not agree with the argument by commenters that these cases
were overruled by Patrick v. Shinseki, 668 F.3d 1325 (Fed. Cir. 2011),
which was a decision regarding whether a prior position of the
government was substantially justified in assessing whether an award of
attorney fees was due. Further, to the extent there is any
irreconcilable tension between DAV and Jordan on the one hand and
Patrick on the other, it is well-established that the earlier decisions
control for precedential purposes. Newell Companies, Inc. v. Kenney
Mfg. Co., 864 F.2d 757, 765 (Fed. Cir. 1988) (``Where there is a direct
conflict the precedential decision is the first.''). Similarly, it is
not possible for one panel of the Federal Circuit Court to have
directly overruled a prior panel. Sacco v. Dep't of Justice, 317 F.3d
1384, 1386 (Fed. Cir. 2003) (``[a] panel of [the Federal Circuit] is
bound by prior precedential decisions unless and until overturned en
banc.''). VA therefore makes no change to the regulation based on the
comments.
One of these commenters recommends the creation of a form
specifically for use in applying for review of a CUE. VA agrees there
is merit in this recommendation, will review possible options, and may
decide to implement a form for this specific use, consistent with the
Paperwork Reduction Act. However, the current process for claiming and
contesting a CUE should be followed in the absence of such a form.
Should VA determine such a form is not necessary, the current process
will remain in place.

E. Comments Concerning Sec. 3.151--Claims for Disability Benefits

The AMA added 38 U.S.C. 5104C, which outlines the available review
options following a decision by the agency of original jurisdiction. VA
proposed to add Sec. 3.2500 and revise Sec. 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 claim, or
appeal to the Board) for each issue decided by VA, consistent with 38
U.S.C. 5104C. A claimant would not be limited to choosing the same
review option for each issue for a decision that adjudicated multiple
issues.
One commenter believed that the terms ``issue'' and ``claim'' are
used interchangeably in sections of the proposed rule but defined
differently. It is clear from Sec. 3.151(c) that the term ``issue''
refers to a distinct determination of entitlement to a benefit, such as
a determination of entitlement to service-connected disability
compensation for a particular disability. A ``claim'' is a request for
review of one or more issues. If a claim includes only one issue then
the terms may appear to be used interchangeably. VA agrees with the
commenter's suggestion that clarification is necessary and revised
Sec. 3.1(p) to include a reference to Sec. 3.151(c), which defines
issues within a claim.

F. Comments Concerning Sec. 3.155--How To File a Claim

While the AMA does not specifically address how to file a claim, or
the concept of intent to file as it relates to supplemental claims, it
is necessary for VA to create a framework for this process. Currently,
38 U.S.C. 501(a) and 5104C(a)(2)(D) place the authority to develop
policy in this area on the Secretary.
One comment expressed concern that Sec. 3.155(b), Intent to file,
does not apply to supplemental claims and recommends recision of this
limitation. However, 38 U.S.C. 5110 of the new statutory framework
provides that a claimant can maintain the potential 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 with
which the claimant disagrees. Consistent with this requirement, the
intent to file provisions of Sec. 3.155(b) do not apply to
supplemental claims because the statute prescribes a one-year filing
period in order to protect the effective date for payment of benefits.
The commenters recommendation would allow for the submission of a
supplemental claim beyond the one-year period. For these reasons, VA
will not make any changes to Sec. 3.155 based on the commenter's
recommendation.

G. Comments Concerning Sec. 3.156--New Evidence

One commenter expressed concern with the definition of new evidence
meaning evidence not yet ``submitted to'' VA and recommended
clarification that new evidence is evidence not yet ``considered by''
VA. The commenter suggested this change to ensure that evidence
qualifies as ``new'' for purposes of a supplemental claim, where that
evidence was associated with the claims file when the record was closed
and therefore was not previously considered by a VA adjudicator. VA
agrees that clarification along these lines is necessary but has
revised the regulatory language in different manner. Instead of the
change recommended by the commentator, VA has replaced ``not previously
submitted to agency adjudicators'' in the definition of new evidence
with ``not previously part of the actual record before agency
adjudicators.'' This change will accomplish the same goal, with the
additional benefit, through use of the phrase ``actual record,'' of
clarifying that new evidence may include evidence

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deemed constructively received as of a date falling within a period
when the record was open, if that evidence had never been part of the
record on which a prior adjudication of the issue in question was
based.
Other commenters disagreed with the change in title for Sec.
3.156(b), from ``Pending claim'' to ``Pending legacy claims not under
the modernized review system,'' resulting in the non-applicability of
current Sec. 3.156(b) in the modernized system. The commenter asserted
that VA had not provided a sufficient explanation for this choice.
Section 3.156(b) provides generally that new and material evidence
received while a claim is pending before VA must be considered as filed
in connection with the pending claim, including evidence received after
an initial decision is rendered and during the period available to file
an appeal. One practical effect of this provision is that qualifying
evidence received during the appeal period automatically requires VA to
readjudicate the claim and issue a new decision. Such a requirement
would be inconsistent with the structure of the new system. First, new
38 U.S.C. 5104B(d) and revised 38 U.S.C. 7113 mandate specific periods
when the record is closed to new evidence, including during the period
following an initial VA decision. Second, new 38 U.S.C. 5104C and
revised 38 U.S.C. 5108 require a claimant who seeks VA readjudication
based on new and relevant evidence to either file a supplemental claim
with the agency of original jurisdiction or file a Notice of
Disagreement and select a Board docket allowing the submission of new
evidence. Defining and limiting the avenues available to a claimant for
submission of new evidence during the claim stream is a primary feature
of the AMA, which was designed, in part, to ``streamline VA's appeal
process'' and ``help ensure that the process is both timely and fair.''
H. Rep. No. 115-135 at 5 (2017). Third, new 38 U.S.C. 5104C provides
claimants with a choice of review options following receipt of an
adverse initial VA decision--file for a higher-level review within the
Veterans Benefits Administration (VBA), file a supplemental claim with
new and relevant evidence for readjudication by the VBA, or file a
notice of appeal to the Board. If VA were to automatically place the
claim on a track for readjudication by the VBA upon receipt of new
evidence, that action would effectively preempt the claimant's choice.
Therefore, because Sec. 3.156(b) requires automatic readjudication
upon the receipt of new evidence during the one-year appeal period, it
is clearly inconsistent with the statutory design of the new system.
Nevertheless, excluding Sec. 3.156(b) from the regulations governing
new system claims does not adversely impact a claimant's right to
obtain a VA readjudication on new and relevant evidence. It simply
means that claimants must submit such evidence though the channels
established by the AMA. Furthermore, automatic readjudication of claims
is not mandated by 38 U.S.C. 5103, even though the implementing
regulation for that provision, Sec. 3.159(b), provides for automatic
readjudication of legacy claims upon VA receipt during the appeal
period of new evidence substantiating the claim. 38 U.S.C. 5103(a)(1)
requires VA to provide claimants, prior to an initial decision, with
notice of information and evidence necessary to substantiate a claim.
Section 5103(b)(1) requires the claimant to provide such evidence
within one year of the date of the notice, but states in paragraph
(b)(3) that VA is not prohibited from making the initial decision on a
claim prior to the expiration of the one year. Consistent with these
provisions, VA's implementing regulations for legacy claims provide
that if a claimant does not respond to the notice within 30 days, VA
may decide the claim prior to the expiration of the one-year period.
See 38 CFR 3.159(b)(1). If VA does so and the claimant subsequently
provides information or evidence substantiating the claim before the
end of the one-year period, the regulations provide that ``VA must
readjudicate the claim.'' Id.
However, the regulatory procedure of automatically readjudicating
the claim in these circumstances was not required by section 5103.
Rather, when the key features of current 38 U.S.C. 5103 were enacted in
2000 and 2003 (in the Veterans Claims Assistance Act of 2000 (VCAA) and
the Veterans Benefts Improvement Act of 2003 (VBIA of 2003), VA had a
long-standing practice, as set forth in Sec. 3.156(b), of
automatically readjudicating a claim upon the receipt of additional
evidence from a claimant--not just within the year following issuance
of the 5103(a) notice, but within the longer one-year period beginning
with the issuance of the initial decision. Following enactment of the
VCAA, VA indicated that it would simply chose to maintain this
practice. 66 FR 45,620, 45623 (Aug. 29, 2001) (final rule). VA viewed
the essence of 5103(b) not as requiring automatic readjudication, but
as ``essentially an effective date provision governing the earliest
date from which benefits may be paid if a claimant submits requested
information and evidence.'' Id.
VA recognized that the longer period for submission of new evidence
provided in Sec. 3.156(b) might be in tension with the bar to awarding
benefits in section 5103(b)(1) where supporting evidence was not
received within a year of the VA notice, id., but that bar was removed
in the VBIA of 2003 and Congress substituted the requirement that the
substantiating evidence ``must be received by the Secretary within one
year of the notice date.'' 149 Cong Rec H 11,705, (Nov. 20, 2003). At
the same time, Congress added section 5103(b)(3), providing that VA is
not prohibited from adjudicating a claim prior to the expiration of the
one-year period following section 5103 notice. Congress explained,
consistent with the view that section 5103(b) was essentially an
effective date preservation provision, that the statutory changes were
designed to promote the streamlined adjudication of claims, while
ensuring that claimants had two essential rights: (1) The opportunity,
following an initial decision, to submit substantiating information or
evidence for VA readjudication within the one-year period, and (2) in
such cases, maintenance of the effective date associated with the
filing of the claim. 108 S. Rpt. 169 at 15 (``In such cases, the one-
year time period would still enable a claimant to submit the requested
information or evidence and if benefits are granted on readjudication,
assign an effective date of award as if VA had not made the initial
decision.''); see also 149 Cong Rec H 11,705, 11,720 (Nov. 20, 2003)
(Explanatory Statement of the House and Senate Committees, indicating
that the House accepted the provisions from the Senate Bill in this
regard).
The new system under the AMA affords claimants these essential
rights, as claimants are entitled to a VA readjudication based on new
and relevant evidence submitted within the one-year appeal period,
while their effective date is protected. Rather than providing for an
automatic readjudication, however, claimants must submit the new
evidence in connection with a choice of review options. The claimant
may file either a supplemental claim pursuant to Sec. 3.2501 or a
Notice of Disagreement with the Board indicating selection of a docket
allowing for the submission of additional evidence. If either filing is
completed within the one-year period under the AMA to maintain
continuous pursuit of the claim (generally one year from the date of
issuance of the initial decision), the claimant will not lose the

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effective date associated with the filing of the claim. The
availability of readjudication based on new evidence under the AMA
therefore fulfils the essential purpose of section 5103(b) as an
effective date provision governing the earliest date from which
benefits may be paid if a claimant submits requested information and
evidence following an initial adjudication.
Nothing in 38 U.S.C. 5103 or caselaw interpreting it requires VA to
automatically readjudicate a claim or precludes orderly procedural
requirements for the submission of new evidence following an initial
decision. Similarly, there is no indication in the relevant legislative
history that Congress understood itself to be creating such a
requirement. Therefore, the AMA is not inconsistent with section
5103(b) and section 5103 does not require VA to create a special
exception to the claim processing rules set forth in the new law.
To the extent that section 5103(b) could be viewed as potentially
conflicting with the AMA by providing an unrestricted right to submit
evidence and receive readjudication for up to one year following the
VCAA notice, notwithstanding the timing of any intervening VA decision,
it would be VA's duty to resolve the conflict for operational purposes.
Therefore, regardless of whether one adopts the view that section
5103(b) provides such a right, VA interprets section 5103(b) and the
AMA together to provide that evidence may be submitted in the one-year
period established by section 5103(b), including following a VA
decision, but must be submitted through the channels provided in the
AMA when VA has issued an initial decision. VA believes that allowing
submission of new evidence only through the channels provided in the
AMA gives the maximum possible effect to both statutory provisions
bearing on the issue and safeguards a claimant's essential statutory
rights. Further, as a matter of policy, creating a year-long exception
to the structure of the AMA would introduce complexity and confusion to
the new claims processing rules, both for VA adjudicators and
claimants, and would substantially undermine the goal of the AMA to
streamline the VA appeals system and allow VA to resolve appeals more
quickly.
Consistent with this discussion, VA eliminates Sec. 3.156(b) for
modernized system claims and makes conforming amendments to Sec.
3.159, as discussed below, to require that new and relevant evidence,
to the extent that it is submitted following a VA decision but within
the year established in section 5103(b), must be submitted to VA
through the channels established by the new law.

H. Comments Concerning Sec. 3.159--Department of Veterans Affairs
Assistance in Developing Claims

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 38 U.S.C 5103A(f), as amended by the AMA.
One commenter is concerned with the term ``potentially new
evidence'' as used in Sec. Sec. 3.159(a)(3)(vii) and in 3.160(a)(6).
In this context, ``potentially new evidence'' references evidence that
may be new and relevant to the claim, thereby providing some potential
basis for a supplemental claim. As adjudicated in the supplemental
claim process, evidence submitted or identified by a claimant may be
found to be duplicative, not relevant, or otherwise not new. If this is
the case, the adjudicator then must issue a decision indicating that
there is not sufficient evidence to readjudicate the claim. If the
evidence is found to be new and relevant, the claim must be
readjudicated. This identification of ``potentially new evidence'' is
consistent with Sec. 3.2501. For the above reasons, VA make no changes
to Sec. 3.159 based upon the comment.
However, VA is making technical amendments to Sec. 3.159 in the
final rule necessary to conform with the procedural requirements of the
AMA. Specifically, paragraph (b)(4) is added and paragraph (b)(1) is
amended to clarify, consistent with new section 5104C, that submission
of new evidence following an initial VA decision must be accomplished
either by filing a supplemental claim on a form prescribed by the
Secretary or by filing a Notice of Disagreement with the Board on a
form prescribed by the Secretary and selecting a review option allowing
for the submission of new evidence. As explained above in the prior
section, VA views these amendments as consistent with section 5103.

I. Comments Concerning Sec. 3.160--Status of Claims

While the AMA does not specifically address status of claims, the
law did, however, replace ``a claim for reopening a prior decision on a
claim, or a claim for increase of benefits'' with ``supplemental
claim'' in section 5103(a). Further, section 5104C(a)(2)(D) places the
authority to develop policy in this area on the Secretary.
Claimants may request review of VA's decision by submitting a
supplemental claim after a decision by the agency of original
jurisdiction, the Board, or the CAVC. VA proposed revising Sec.
3.160(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.
One commenter contends that those who have filed their claims in
the legacy system have the right to have those claims adjudicated in
the legacy system and VA cannot force them into the modernized system
outside of the statutorily prescribed opt-in periods citing that the
courts have held a claimant has the right to demand the benefit of the
laws in existence at the time the claim was filed and any new laws that
come into existence during that claim's pendency that are more
favorable to the claimant, absent a specific indication that the change
in law was intended to be retroactive. VA agrees with the commenter in
part; however, VA did not propose to apply a new law that is less
advantageous to the claimant. By requiring the filing of a supplemental
claim, VA will no longer require claimants to identify new and material
evidence to reopen a finally adjudicated claim. VA will now allow the
submission of evidence that is ``new and relevant'', which Congress has
indicated is a lesser standard and reduces the claimant's burden. In
addition, this change in filing requirement does not change VA's review
of the claim and application of the laws in effect at the time the
claim was originally decided when readjudicating the claim. What VA
intends, by allowing claimants with legacy claims to file under the
supplemental claim framework, is to reduce claimants' filing burden
while still maintaining all requirements for review of the decision
based on all applicable laws and regulations whether in existence at
the time of prior decision or now. For these reasons, no changes are
made based on this comment.

J. Comments Concerning Sec. 3.328--Independent Medical Opinions

The AMA repealed 38 U.S.C. 7109, which authorized the Board to
obtain

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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 the AMA, the Board will, when deemed necessary, direct the
agency of original jurisdiction to obtain an IMO. VA proposed to amend
Sec. 3.328 to include a requirement that VBA process IMO instructions
received from the Board.
One commenter requested clarification on the definition of
``director of the Service'' in Sec. 3.328(c). Previous language
referenced approval to be ``granted only upon a determination by the
Compensation Service or the Pension and Fiduciary Service''. The change
to ``director of the Service'' in Sec. 3.328(c)(1)(i) is necessary
because the modernized system affects all VA administrations and is not
limited to the Veterans Benefits Administration's Compensation Service
and Pension and Fiduciary Service. To address the commenter's concern,
VA is adding language to clarify the meaning of ``director of the
Service''.
Another commenter requested clarity on the use of the word
``obscurity'' and the phrase ``such controversy in the medical
community at large'' in proposed Sec. 3.328(c)(1)(i) and recommended a
revision to reflect the language of the statute. VA agrees that the
regulation should track the language of the statute and revised Sec.
3.328(c)(1)(i) accordingly.

K. Comments Concerning Sec. 3.2400--Applicability of Modernized Review
System

The AMA provides direction on the applicability of the modernized
review system. Accordingly, Sec. 3.2400 defines which claims are
processed under the modernized review system and which clams are
processed under the legacy appeals system. 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 CUE.
One commenter interpreted proposed Sec. 3.2400, specifically the
provision proscribing supplemental claims based upon CUE, as somehow
limiting CUE claims generally. However, Sec. 3.2400 clarifies that the
new review system will generally apply to initial decisions issued on
or after the effective date of this final rule, to include decisions
denying requests to revise a decision by the agency of original
jurisdiction based upon CUE. Although such requests are not ``claims''
subject to the AMA 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), it is VA's
policy to allow the requestor to elect review of such decisions in the
higher-level review lane or through an appeal to the Board. Revision of
a decision based upon CUE cannot be requested in a supplemental claim
because CUE must be based upon the facts and law that existed at the
time of the prior decision, not new and relevant evidence. For these
reasons, VA does not make any changes based upon the comment.
Another comment expressed concern that character of discharge
determinations are not expressly addressed in Sec. 3.2400. While
character of discharge determinations could be reviewed under the
modernized review process, the AMA does not specifically implicate or
change any existing law regarding character of discharge
determinations. Accordingly, no changes are made based on this comment.

L. Comments Concerning 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. The new system created by the AMA allows
claimants to choose from several different review options. Congress
added 38 U.S.C. 5104C to provide claimants with streamlined, early
resolution options within the agency of original jurisdiction or in an
appeal directly to the Board. VA proposed to add Sec. 3.2500 to
implement the new decision review options and set forth the rules that
apply to those options under section 5104C. In line with the statutory
requirements, VA proposed 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 Sec. 3.2500(b), a
claimant will be able to elect a different review option for each issue
adjudicated in the decision. It is clear from Sec. 3.151(c) that the
term ``issue'' refers to a distinct determination of entitlement to a
benefit, such as a determination of entitlement to service-connected
disability compensation for a particular disability. An ``issue'' is
distinct from a ``claim'' in that a claim may contain one or more
issues.
Several commenters expressed concern over Sec. 3.2500(b), which
provides that a claimant may not elect to have the same issue reviewed
concurrently under different review options, consistent with section
5104C(a)(2)(A). Some of these comments were specific to the concurrent
election of a different review lane while an appeal is simultaneously
being reviewed by a federal court. In general, it is inefficient and
raises potential conflicts for the same issue to be reviewed
concurrently by two different processes (e.g., concurrent review in
multiple review lanes or in a review lane and at a court). These
different review lanes may come to different conclusions. This final
rule establishes a process for a potentially different conclusion in a
lane than in a previous lane. It is inefficient and confusing for those
conclusions to be reached separate from each other without the benefit
of the other review's conclusions. The appropriate method for a
claimant to seek a different conclusion is to allow for a decision to
be made, then seek another appropriate review option to address any
additional evidence, difference of opinion, or perceived error in the
prior conclusion. VA also notes that concurrent review of a matter by a
lower level review lane and a federal court is prevented as a matter of
law, due to VA's lack of jurisdiction to review a matter pending before
a higher-level authority. Accordingly, no changes are made to Sec.
3.2500(b) based on these comments.
One commenter expressed a belief that the proposed rule limits the
options for a claimant to appeal downstream issues to reviewing them
all in a single lane. The example offered by the commenter was a case
in which the Board grants service connection for a left knee condition,
but the claimant disagrees with the effective date and percentage of
disability assigned by the Board, and the claimant must choose one lane
for adjudication for each of these issues, even though the effective
date issue might be better resolved in a higher-level review and the
evaluation might be better resolved in a supplemental claim. The
proposed rule did not specifically address downstream issues, which are
those that necessarily arise from a decision on one element of a claim.
Ratings and effective dates, using the commenter's example, are
separate issues that may arise from a Board grant of service
connection.
VA recognizes that a claimant might sometimes want to seek review
of each downstream issue in a different lane. However, as VA discussed
in the preamble to the proposed rule, 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
administratively unworkable, risk self-contradictory decision-making by
VA, and undermine Congressional

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intent to streamline the review process and reduce adjudication times.
Although problems would not necessarily arise in every instance, from
the standpoint of administering an entire system that produces timely
adjudications for all claimants, VA must attempt to achieve a balance
between more flexibility for individual claimants and administrative
efficiency that benefits all veterans. Based on extensive experience
administering a claims adjudication system, and considering that one of
the express goals of the AMA is to improve the effciency of VA claims
and appeals processing and reduce overall wait times, VA will not allow
claimants to choose different review lanes for downstream issues.
Rather, each separate benefit entitlement sought by a claimant is
considered an issue as defined in Sec. 3.351(c) and cannot be split
into different review lanes for purposes of admistrative review. VA
makes no regulatory changes based on the comment.
Some commenters suggested that the regulatory provision indicating
review options following a Board decision should include reference to
the option to file a notice of appeal with the U.S. Court of Appeals
for Veterans Claims (CAVC). VA agrees and revises Sec. 3.2500(c)(3)
accordingly. Other commenters suggested that proposed Sec.
3.2500(c)(4) should track the statutory language providing that the
one-year period for continuous pursuit begins upon issuance of a CAVC
decision, rather than a CAVC judgment. VA agrees and revises the
language in Sec. 3.2500(c)(4) accordingly.
Proposed Sec. 3.2500(d) implements section 5104C(a)(2), providing
that the Secretary may, as the Secretary considers appropriate,
implement a policy for claimants to switch between the different review
options. A claimant or the claimant's duly appointed representative
may, for example, wish to withdraw a request for higher-level review or
a supplemental claim at any time prior to VA issuing notice of
decision. VA proposed in Sec. 3.2500(d) that a claimant may, if the
withdrawal takes place within the one-year period following notice of
the decision being reviewed, timely elect another review option to
continuously pursue the claim and preserve the potential effective date
for payment of benefits.
Two commenters expressed concern that section 5104C(a)(2) does not
impose a time limit on selecting additional review options upon
withdrawal. However, section 5104C(a)(2)(D) places the discretion to
develop policy in this area with the Secretary of Veterans Affairs.
Under the AMA (sections 5104B, 5104C, 5110, and 7105), and in order to
ensure efficiency, consistency, and timeliness, option election periods
are consistently one year from the date of the decision with which the
claimant disagrees. A withdrawal and election of a new option must
necessarily also be based on the date of that decision. For example, a
claimant receives an unfavorable decision and requests a higher-level
review. Sometime during the year following the claim decision, but
before the higher-level review request has been adjudicated, the
claimant decides to change to the supplemental claim lane. The
supplemental claim must be filed within that same year from the last
decision date. As long as a claimant submits a supplemental claim
within the same one-year period that follows the relevant decision, VA
will consider this to be a continuously pursued claim and continue to
base the effective date of an award of benefits on the filing date of
the initial claim. This benefits the claimant by ensuring there are
clearer periods of time associated with processing an action and
definitive decision points in the process on which to better determine
if further action is desired while protecting the effective date.
Accordingly, no changes are made to Sec. 3.2500 based on these
comments.
Concern was expressed regarding lane changes after the one-year
period described above, but before a decision review request has been
adjudicated. VA understands the concern regarding withdrawing from one
lane in favor of another, particularly if the one-year period has
expired. Accordingly, VA will consider requests to extend the one-year
period for claimants in one review lane to switch to the supplemental
claim lane through the above-described procedure without loss of the
current effective date. Such requests will be considered on a case-by-
case basis for good cause shown under Sec. 3.109(b). Section 3.109(b)
generally allows for requests to extend time limits within which
claimants are required to act based on good cause, and allows such
requests to be made after the relevant time period has expired subject
to specified procedural requirements. The only lane into which a
claimant may switch after the one-year period has expired is the
supplemental claim lane based on new and relevant evidence, regardless
of whether a good cause exception is allowed for purposes of
maintaining continuous pursuit of the claim.
VA makes changes in Sec. 3.2500(e) in accordance with the above
discussion in response to the comment.
VA also makes technical changes to Sec. 3.2500(d), including
adding the requirement that withdrawal of a supplemental claim or a
request for a higher-level review must be in writing or through
electronic submission in a manner prescribed by the Secretary and must
be filed with the agency of original jurisdiction. These changes are
required for orderly administrative processing and to provide useful
information to claimants.

M. Comments Concerning Sec. 3.2501--Supplemental Claims

VA received multiple comments requesting clarification about
electronic submissions in Sec. 3.2501. These comments correctly
identify that Sec. 3.2501 states that applications may be made ``in
writing'' and says nothing about electronic submissions. VA agrees on
the need for clarification regarding electronic submissions.
Accordingly, VA revises Sec. 3.2501 to clarify that a claimant or
their authorized representative may submit supplemental claims in
writing or electronically, consistent with Sec. 3.160(a).
Additionally, clarity is added regarding new and relevant evidence that
may be in custody of the VA when reasonably identified by the claimant
consistent with revisions in Sec. 3.103(c)(2). The definition of new
and relevant evidence in Sec. 3.2501(a)(1) is revised in a similar
manner to the revision of Sec. 3.156 regarding evidence not previously
``considered by'' agency adjudicators.

N. Comments Concerning Sec. 3.2502--Returns by Higher-Level
Adjudicator or Remand by the Board of Veterans' Appeals

Several commenters expressed confusion over the inclusion of the
term ``adjudication activity.'' VA agrees that our use of this term in
the proposed rule was confusing. Accordingly, VA revises Sec. 3.2502
to use the term ``agency of original jurisdiction'' throughout the
final rule. Similarly, commenters requested further clarity on what it
means to ``take immediate action to expedite readjudication.'' The AMA
amended 38 U.S.C. 5109B to state, ``The Secretary shall take such
actions as may be necessary to provide for the expeditious treatment by
the Veterans Benefits Administration of any claim that is returned by a
higher-level adjudicator under section 5104B of this title or remanded
by the Board of Veterans' Appeals.'' VA agrees that clarification is
necessary and revises Sec. 3.2502 to more closely mirror the statutory
language. The statute does not further define what is meant by

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``expeditious,'' leaving timely treatment of claims to the Secretary.
Clearly, Congress intended that VA would process these claims as
expeditiously as possible depending upon available resources. VA will
similarly not further define ``expeditious'' in the rule to provide the
Secretary the discretion to direct expeditious processing of actions
through allocation of available resources, appropriate prioritization
of workload, and issuance of procedures.

O. Comments Concerning Sec. 3.2601--Higher-Level Review

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 point out any specific errors in the case as
part of the higher-level review. 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 authorized 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.
Several commenters expressed concern over the term ``good cause''
in Sec. 3.2601(e) as it relates to VA's ability to conduct the higher-
level review at the office which rendered the initial decision when
desired by the claimant. VA agrees that clarity is needed. Accordingly,
language is added for clarification regarding situations in which the
VA may not be able to conduct the higher-level review at the office
which rendered the initial decision.

P. Comments Concerning General Timeliness

VA received several comments recommending timelines and goals
related to timeliness be included in the rule. VA is committed to the
purpose of appeals modernization, which is to provide fair, efficient,
and more timely resolution of cases in which a claimant disagrees with
a VA decision. Though VA intends to maintain a 125-day average goal for
completion of higher-level reviews and supplemental claims, the statute
does not require a specific goal and the Secretary must retain the
authority and responsibility to monitor and prioritize workload,
allocate resources appropriately, and establish appropriate procedures
to best meet priorities established by any given change in
administration or policy. Regulating a specific goal eliminates the
judgement and decision-making authority of the Secretary and reduces
the ability to adapt to change appropriately. Goals and timelines for
timely completion of VA processes will be established and monitored
through VA procedures and policy. For these reasons, no changes are
made based on these comments.

Q. Comments Outside the Scope of the Rule

One commenter suggested using non-VA staff, physicians, or case
managers at non-VA facilities to be trained in the claims and appeals
process in order to fulfill the duty to assist responsibility, stating
this would shorten the claims and appeals process. This comment is
outside the scope of the proposed rule because it relates to the
specific methods in which VA accomplishes the training and management
of the law and regulations. Therefore, no change is made based on this
comment.
Another comment concerned denial rates under the Rapid Appeals
Modernization Program (RAMP). This comment is outside the scope of the
proposed rule, therefore, no change is made based on this comment.

Part 8--National Life Insurance Program

Based on comments received relative to part 3, language in Sec.
8.30 is adjusted to be standardized with the language used in Part 3 in
reference to favorable findings, supplemental claims, and higher-level
reviews.

Part 14--Legal Services, General Counsel, and Miscellaneous Claims

For the reasons set forth in the proposed rule and in this final
rule, VA is adopting the proposed amendments to 38 CFR part 14 as
final, with minor changes, as explained in the section-by-section
supplementary information below. These regulations govern recognition
of veterans service organizations (VSO); accreditation of attorneys,
agents, and VSO representatives; representation of claimants before VA,
including the rules of conduct applicable while providing claims
assistance; and fees charged by attorneys and agents for
representation.

R. Comment Concerning Sec. 14.631--Powers of Attorney; Disclosure of
Claimant Information

VA proposed only one change to current Sec. 14.631, to update a
reference in paragraph (c) from 38 CFR 20.608 to 38 CFR 20.6 to reflect
proposed revisions to the Board of Veterans' Appeals' (Board) Rules of
Practice. Nevertheless, VA received one comment, from a VA-recognized
VSO, asking VA to clarify how claimants may change representation and
what their ``continuing obligations'' might be, and specifically asking
for clarification as to how a claimant would change representation from
an attorney to a veterans service organization. Although the commenter
asked this question in regard to the organization's clients, the
comment pertains to other scenarios as well, including when a claimant
changes representation from one attorney or agent to another attorney
or agent or from an attorney or agent to proceeding without
representation.
As a starting point, unless an appeal is before the Board, the
claimant may discharge the attorney or agent at any time and for any
reason. A claimant may do so by informing VA of the revocation or by
filing a new power of attorney. Attorneys, agents, and VSOs are also
permitted to withdraw from representation while the case is before the
agency of original jurisdiction (AOJ) so long as the withdrawal would
not adversely impact the claimant's interests or if there is good cause
for the withdrawal such as if the claimant pursues a course of action
that the representative believes to be fraudulent and is being
furthered through the representative's representation on the claim.
Current Sec. 14.631 identifies the effect of withdrawal from
representation and the effect of a revocation of a power of attorney.
Withdrawal before the Board, proposed Sec. 20.6, sets forth a
different procedure and, in some circumstances, a higher standard that
must be met before a representative is permitted to withdraw. Upon
withdrawing from representation, the representative must generally
return all of the claimant's property to the claimant.
Under Sec. 14.631(f)(1), receipt of a new power of attorney by VA
generally revokes existing powers of attorney. Under Sec.
14.631(f)(2), however, an agent or attorney may limit the scope of his
or her representation to a particular claim by describing the
limitation on VA Form 21-22a. If a VA Form 21-22a, which limits the
scope of representation to a particular claim, is submitted, after a VA
Form 21-22 or VA Form 21-22a

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that did not, then the, organization or individual with a prior
unlimited power of attorney would retain representation for all claims
before VA with the exception of the particular claim indicated on the
new VA Form 21-22a with the limited scope. Conversely, under Sec.
14.631(f)(1), if VA receives a new VA Form 21-22 or VA Form 21-22a,
which contains no limitations in scope, it would revoke an existing
power of attorney even if the initial VA Form 21-22a indicated that it
was limited in its scope to a particular claim. VA will make no further
changes to Sec. 14.631 based on this comment.
As to the claimant's continuing obligations to the attorney or
agent pertaining to fees, this aspect of the comment will be discussed
further below with regard to Sec. 14.636.

S. Comment Concerning Sec. 14.632--Standards of Conduct for Persons
Providing Representation Before the Department

In Sec. 14.632(c)(6), VA proposed to amend the current regulation
which provides, ``An individual providing representation on a
particular claim under Sec. 14.630, representative, agent, or attorney
shall not . . . [s]olicit, receive, or enter into agreements for gifts
related to 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.'' (Emphasis
added.) VA proposed new language that would state, ``An individual
providing representation on a particular claim under Sec. 14.630,
representative, agent, or attorney shall not . . . [s]olicit, receive,
or enter into agreements for gifts related to services for which a fee
could not lawfully be charged.'' (Emphasis added.) One commenter
supported the premise of the provision because it would discourage
unethical charging of fees disguised as gifts, but the commenter urged
VA to clarify that VA does not intend to include de minimis gifts
within the prohibition. The commenter noted that veterans or their
families may want to send small tokens of gratitude to advocates.
VA has not changed the language from the proposed rule. Section
14.632(c)(6), as well as other provisions such as current Sec.
14.628(d)(2)(i) (essentially prohibiting recognized organizations and
their accredited representatives from charging or accepting a ``fee or
gratuity for service to a claimant''), implement statutory prohibitions
or limitations on the charging of fees, such as those contained in 38
U.S.C. 5902(b)(1)(A) and 5904(c)(1). VA appreciates the commenter's
support for preventing unethical behavior and recognizes that most
accredited practitioners would not attempt to circumvent statutory or
regulatory prohibitions on charging fees through the acceptance of
gifts. But, unfortunately, based on VA's experience monitoring the
conduct of accredited individuals and addressing complaints received
regarding the receipt of gifts and donations, VA does not believe that
exceptions to the rule should be recognized because doing so could open
the door to potential abuses. Indeed, to be clear, VA believes that, in
circumstances in which a fee would be unlawful, a prudent practitioner
would return any gift to the donor to avoid the appearance of a
violation of the standards of conduct in Sec. 14.632. VA declines to
alter the proposed language or otherwise offer the clarification or
exception for de minimis gifts requested by the commenter. To assuage
the commenter's concerns, VA notes that the prohibition in Sec.
14.632(c)(6) does not extend to accepting de minimis gifts under
circumstances where a fee could be charged by the agent or attorney,
but cautions that if the gift is determined not to be de minimis it
could prevent the attorney or agent from directly collecting a fee from
VA out of the claimant's past-due benefits (where a fee may be charged
but must be contingent on whether the matter is resolved in a manner
favorable to the claimant and may not exceed 20 percent of the total
amount of the past-due benefits awarded). Acceptance of such a ``gift''
in addition to the amount to be paid directly from past due benefits
could cause the fee charged to exceed 20 percent of past due benefits.
VA notes that in many jurisdictions the appropriateness of accepting of
a gift under circumstances when a fee could be charged would still be
governed by a version of Rule 1.8(c) of the American Bar Association's
Model Rules of Professional Conduct--which generally prohibits
attorneys from soliciting substantial gifts from clients--and by
extension, current Sec. 14.632(d), which provides that an accredited
attorney is bound by ``the rules of professional conduct of any
jurisdiction in which the attorney is licensed to practice law.''

T. Comments Concerning 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

VA proposed multiple changes to Sec. 14.636. VA did not receive
comments on all the proposed changes and will only address here those
pertinent to the comments. One commenter objected to language in
proposed Sec. 14.636 that was proposed to reflect how Public Law 115-
55 changes the starting point at which fees for representation may be
charged. The commenter specifically objected to the phrase ``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)'' in proposed Sec. 14.636(c)(1)(ii) and the phrase ``a Notice
of Disagreement has been filed with respect to that decision on or
after June 20, 2007'' in both proposed Sec. 14.636(c)(2)(i) and
(c)(2)(ii). The commenter also objected to all of proposed Sec.
14.636(c)(3), which states the limitations on whether an attorney or
agent can charge a fee in cases in which a Notice of Disagreement was
filed on or before June 19, 2007.
As VA explained in the preamble to the proposed rule, current 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. VA
proposed language in Sec. 14.636(c) to implement the change in section
2(n) of Public Law 115-55 that fees may be charged upon VA's issuance
of notice of an initial decision on a claim. The commenter correctly
recognizes that the proposed regulation describes ``multi-level
predicates'' for when it is permissible for attorneys and agents to
charge fees. The basis for this structure is the fact that Congress has
shifted the delimiting event for when fees may be charged by agents and
attorneys three times, most recently with the passage of Public Law
115-55. When Congress has done so, VA has structured Sec. 14.636 and
its predecessor, former 38 CFR 20.609, to reflect the statutory
amendments to 38 U.S.C. 5904 and its predecessor, former 38 U.S.C.
3404, using the effective dates of the Public Laws. VA's structure of
proposed Sec. 14.636 only continues this structure. This is best
reflected by proposed Sec. 14.636(c)(3), which is identical in
language to current Sec. 14.636(c)(2), having been renumbered from
(c)(2) to (c)(3) because proposed subparagraph (c)(1) has been added to
the regulation address fees under the modernized appeal system.
But the commenter asserts that such a structure for the regulation
is ``not supported by the plain language of the statute.'' The
commenter explains that 38 U.S.C. 5904(c)(1), as amended by Public Law
115-55, will state, in pertinent part, the limit on fees as, ``a fee
may not be charged, allowed, or paid for services of agents and
attorneys with respect to services provided before the

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date on which a claimant is provided notice of the agency of original
jurisdiction's initial decision under section 5104 of this title with
respect to the case.'' So, the commenter reasons, the only limitation
supported by the plain language of the amended statutory section is
that the claimant has been provided notice of the AOJ's initial
decision under 38 U.S.C. 5104 regardless of when it was issued or if a
Notice of Disagreement or Board decision followed.
The commenter urges a reading of Public Law 115-55--essentially as
a retroactive repeal of prior versions of sec. 5904(c)(1) rather than a
prospective amendment--which would impermissibly ignore part of the
statute. Although VA referred specifically to section 2(n) of Public
Law 115-55 in the preamble to explain the basis for proposed Sec.
14.636, the structure provided in the regulation also encompasses
section 2(x) of Public Law 115-55, which states that the amendments
made by the public law only apply to claims for which a notice of
decision is provided by the AOJ on or after the effective date of the
new review system. In addition to ignoring sec. 2(x), the expansion of
the language in sec. 2(n) urged by the commenter is unrelated to the
primary aim of Public Law 115-55--to amend, going forward, the
procedures applicable to administrative review and appeal of VA
decisions on claims for benefits in order to create a new, modernized
review system. Accordingly, VA declines to change the structure of the
proposed rule based on this comment. However, in reviewing the proposed
rule in light of the comment, VA did discover a gap between the
language for proposed paragraphs 14.636(c)(1)(ii) and (c)(2)(ii),
regarding when agents and attorneys may charge fees for representation
provided with respect to a request for revision of a decision of an AOJ
under 38 U.S.C. 5109A or the Board under 38 U.S.C. 7111 based on clear
and unmistakable error.
This gap was created by VA's mistaken reference, in proposed Sec.
14.636(c)(2)(ii), to the notice of the decision on the request for
revision rather than the notice of the decision that is being
challenged based on clear and unmistakable error. By requiring the
notice of decision on the request for revision to be issued before the
effective date of the modernized review system, it created a gap
involving circumstances in which the request for revision of a prior
decision based on clear and unmistakable error is filed after the
effective date of the modernized review system but challenges the
decision that was issued prior to the modernized review system and for
which a Notice of Disagreement had been filed after June 20, 2007. The
proposed language would have meant that agents and attorneys could not
charge fees under these circumstances until after VA had issued a
decision on the request for revision. Despite the proposed language
indicating otherwise, VA had intended to permit agents and attorneys to
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 challenged
decision was issued before the effective date of the modernized review
system; 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 Sec. 14.636(g). VA has
revised the amendatory language to address this unintended gap so that
an attorney or agent may charge a fee in these circumstances regardless
of whether VA has already issued a decision on the request for
revision.
Further, VA has also revised Sec. 14.636(c)(1)(ii) to clarify that
an attorney or agent may charge a fee for representation provided on a
request to revise a decision based on clear and unmistakable error if
the notice of the decision being challenged based on clear and
unmistakable error was issued after the modernized review system.
Additionally, VA has added language in Sec. 14.636(c)(1)(i) to clarify
that, in requests for revision based on clear and unmistakable error
that are not otherwise addressed in Sec. 14.636(c)(1)(ii) or
(c)(2)(ii) (e.g., requests challenging decisions issued before June 20,
2007), a decision on the request for revision will be considered the
initial decision for purposes of allowing fees to be charged for
representation.
The same commenter recommended that VA define the term ``case'' as
used in 38 U.S.C. 5904(c)(1), as amended by Public Law 115-55, to
include all requests by a specific individual for a specific monetary
benefit (e.g., compensation, pension, or dependency or indemnity
compensation) within a single case. Under the interpretation suggested
by the commenter, once an individual receives an initial decision with
respect to a specific type of benefit, fees could be charged for any
subsequent services provided with respect to the same type of
``benefit,'' even if the services related to a claim with an entirely
different basis (e.g., an initial decision with respect to compensation
for hearing loss would permit fees to be charged with respect to the
veteran's subsequent application for compensation based on service
connection for a mental disorder). VA disagrees with commenter because
such a rule would untie the term ``case'' from the initial decision by
the AOJ. The commenter's proposal would have the effect of permitting
agents and attorneys to charge fees to file claims, except the very
first claim filed under a specific benefit program. If Congress had
intended such a result, it could have accomplished it by repealing or
replacing the ``with respect to the case'' language in its entirety.
Congress did not, and, therefore, VA will not interpret the amended
statute in a manner that would essentially achieve that result in the
absence of any indication that this was Congress' intent.
As to the more general aspect of the commenter's suggestion that VA
should expressly define the term ``case,'' at this time, VA does not
believe that it is necessary to expressly define the term in regulation
to explain under what circumstances an agent or attorney may charge
fees. Rather, in proposed Sec. 14.636(c), VA continues to explain the
term for the purpose of fees in the context of a ``claim'' and
maintains the general position that VA must be allowed to decide a
matter before paid representation is available. See 73 FR 29852, 29868
(May 22, 2008) (the final rule shifting, pursuant to Public Law 109-
461, the delimiting point for the restriction of fees to the Notice of
Disagreement with respect to the case). VA recognizes that the term
``claim'' has different meanings in different contexts other than
attorney's fees, so to clarify the application of the rule VA has
provided guidance in proposed Sec. 14.636(c) on three of the more
nuanced circumstances relating to fees: Supplemental claims, claims for
increase in a rate of disability, and requests for revision of a prior
decision based on clear and unmistakable error. VA believes that the
proposed Sec. 14.636(c) provided sufficient guidance as to when, and
under what circumstances, a fee may be charged, but has opted to revise
the language to clarify VA's current position.
In a similar regard, three commenters objected to language in
proposed Sec. 14.636(c)(1) that specifies the circumstances in which
an AOJ's decision adjudicating a supplemental claim will be considered
the initial decision on a claim. Specifically, VA had proposed adding a
sentence to Sec. 14.636(c) stating, ``For purposes of this

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paragraph (c)(1)(i), a decision by an AOJ 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 AOJ issued a decision; a supplemental claim, on or before one year
after the date on which the AOJ issued a decision; a Notice of
Disagreement, on or before one year after the date on which the AOJ
issued a decision; a supplemental claim, on or before one year after
the date on which the Board 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.'' The commenters advocated for an
interpretation that would allow for agents and attorneys to receive
fees for representation on all supplemental claims regardless of
whether they are being continuously pursued by the claimant. One
commenter expressed a belief that, based on information conveyed to the
commenter by a director of a VSO, the non-inclusion of all supplemental
claims within the case restriction in the proposed regulation is
contrary to the negotiations between VA and its stakeholders.
Ultimately, he characterizes the proposed language as ``a[n
impermissible] denial of professional services to veterans.''
It is VA's position that the regulatory text is consistent with the
language of the amended statute, and to explain VA's interpretation of
the statute it is helpful to consider the legislative history of the
statutory restrictions on attorney's fees. Since 1988, Congress has
restricted fees on VA appeals by: (1) Prohibiting fees prior to a
specific event in the appeal proceeding, and (2) permitting reasonable
fees thereafter. VA views the language proposed in Sec. 14.636(c) as
being consistent with that scheme. Originally, in 1988, under Public
Law 100-687, the Veterans Judicial Review Act, the delimiting point was
a decision by the Board, which was the decision that was appealable to
the Veterans Court. Then, under Public Law 109-461, the Veterans
Benefits, Health Care, and Information Technology Act of 2006, Congress
shifted the delimiting point to the Notice of Disagreement, the
threshold requirement to receiving a Board decision. Under Public Law
115-55, the delimiting point will shift again, from the Notice of
Disagreement to the notice of the initial decision by an AOJ.
As to how VA views Public Law 115-55 in relation to the prior
scheme, VA interprets the amendment of section 5904(c) by sec. 2(n) of
Public Law 115-55 as merely a means to allow paid representation with
respect to the claimant's expanded options for seeking review of an
initial decision on a claim. As noted above, prior to Public Law 115-
55, to obtain direct review of an AOJ decision, a claimant had to file
a Notice of Disagreement. Thus, the filing a Notice of Disagreement was
the logical entry point for ensuring that paid representation was
available with respect to review of AOJ decisions. However, pursuant to
Public Law 115-55, direct review of an AOJ decision may be obtained
without filing a Notice of Disagreement. It may be obtained by choosing
from three differentiated lanes--filing a Notice of Disagreement,
filing a request for higher-level review, and filing a supplemental
claim. As a result, to permit paid representation regardless of the
form of review, Congress necessarily had to shift the entry point for
paid representation to the AOJ decision itself. VA does not view the
amendment as altering the general premise that ``VA must have an
opportunity to decide a matter before paid representation is
available.'' See 73 FR 29852, 29868 (May 22, 2008) (the final rule
shifting, pursuant to Public Law 109-461, the delimiting point for the
restriction of fees). To the extent that there is any variation from
this general rule when it comes to evidence submitted shortly after the
AOJ's decision, it is explained below.
VA has set forth in Sec. 14.636(c)(1)(i) the circumstances when an
attorney or agent may charge a claimant for services in response to an
adverse AOJ decision--after the initial decision on the claim. The
proposed language referring to when ``an agency of original
jurisdiction adjudicating a supplemental claim will be considered the
initial decision'' was intended to distinguish an initial decision by
an AOJ from review actions made by the same entity while the claimant
continuously pursued the matter. VA carefully chose the ``continuously
pursued'' language included in the proposed rule. Pursuant to Public
Law 115-55, Congress shifted from a single-option appellate system to a
multi-option appellate system involving the following three options: a
supplemental claim, higher level review by the AOJ, and appeal to the
Board. In addition to alternatives for pursuing appeals, the new system
allows claimants to pursue appellate options in succession, each
relating back to the same AOJ decision for effective date purposes.
VA acknowledges that this approach treats supplemental claims
differently based on whether they were filed within one year of a prior
decision. If a supplemental claim is filed within one year of a prior
decision, the supplemental claim relates back to the claim that gave
rise to the earlier claim. As a result, the relevant time period with
respect to the supplemental claim overlaps the time period considered
in the earlier decision and is considered a continuation of that claim.
A supplemental claim filed more than one year after a prior decision,
on the other hand, is distinct from the prior decision because it does
not overlap with the timeframe considered in the prior decision, and,
thus, is the beginning of a new claim for the purposes of assigning an
effective date and a new claim--or a new case--for the purpose of
determining when attorney fees may be charged. The distinction between
the submission of evidence on an AOJ decision for which the review has
not expired and the submission of evidence after a AOJ decision has
been finally adjudicated, is not a new concept. Pursuant to current 38
CFR 3.156(b), new and material evidence received after an AOJ decision
but prior to the expiration date of the appeal period, or prior to the
appellate decision if a timely appeal was filed, has long since been
considered to have been filed in connection with the initial claims
proceeding. In contrast, pursuant to 38 CFR 3.156(a), a finally
adjudicated claim could be reopened but the new proceeding would not be
treated as a continuation of the prior claim.
Furthermore, unlike supplemental claims that are filed more than
one year after an AOJ decision or a Board decision, VA does not have a
duty to notify the claimant who files a supplemental claim while
continuously pursuing the matter of the information or evidence
necessary to substantiate the claim in accordance with 38 U.S.C. 5103.
See Public Law 115-55, section 2(b). The exclusion of this pro-claimant
obligation also favors treating a continuously pursued supplemental
claim as part of the matter stemming from the AOJ's initial decision.
In contrast, the fact that VA still does have this obligation with
respect to supplemental claims filed when the claimant has not
continuously pursued the matter only bolsters the conclusion that VA
should again be permitted to decide the matter prior to the need for
paid representation.
VA has revised proposed Sec. 14.636(c) to clarify VA's position
regarding supplemental claims, claims for increase in a rate of
disability and requests for revision based on clear and unmistakable
error, but has not made

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any substantive changes to VA's position.
Finally, turning back to the commenter who asked VA about a
claimant's ``continuing obligations'' to a former attorney or agent, VA
is amending Sec. 14.636(e) and (f) based on this comment to help
clarify a claimant's continuing obligations with regard to fees. Simply
because a claimant has discharged an attorney or agent, or the attorney
or agent has withdrawn from representation does not eliminate the
attorney or agent's right to compensation. But the standard for
evaluating a reasonable fee does change. In the typical case, in which
an attorney or agent has a contingent fee agreement that does not
exceed 20-percent and provides continuous representation from the date
of the agreement through the date of the decision awarding benefits,
the fee called for in the fee agreement is presumed to be reasonable in
the absence of clear and convincing evidence to the contrary. 38 U.S.C.
5904(a)(5); 38 CFR 14.636(f); see also Scates v. Principi, 282 F.3d
1362, 1365 (Fed. Cir. 2002) (explaining that even if a fee agreement
provides for a fee of 20 percent of past-due benefits awarded, implicit
in that arrangement is the understanding that the attorney or agent's
right to receive the full fee called for in the fee agreement only
arises if the attorney or agent continues as the veteran's
representative until the case is successfully completed). In contrast,
if the attorney or agent's representation of the claimant ends before
the date of the decision awarding benefits, the attorney or agent may
still be eligible to receive a fee, but the full amount of the fee
stated in the agreement generally does not represent a reasonable fee
for that attorney or agent. Rather a reasonable fee for a discharged
agent or attorney would be limited to the amount of the ``fee that
fairly and accurately reflects [the attorney or agent's] contribution
to and responsibility for the benefits awarded.'' Scates, 282 F.3d at
1366.
Accordingly, VA is amending paragraph (f) of Sec. 14.636 by
revising the caption to ``Presumptions and discharge,'' amending the
current language to specify that the presumption that a fee of 20
percent of any past-due benefits awarded is reasonable applies ``if the
agent or attorney provided representation that continued through the
date of the decision awarding benefits,'' and adding a new paragraph
(f)(2). Paragraph (f)(2) will explain that a reasonable fee for an
agent or attorney who is discharged by the claimant or withdraws from
representation before the date of the decision awarding benefits is one
that fairly and accurately reflects his or her contribution to and
responsibility for the benefits awarded and that the amount of the fee
is informed by an examination of the factors in Sec. 14.636(e). VA has
also amended paragraph (e) of Sec. 14.636, which lists factors
considered in determining whether a fee is reasonable, to add as a
factor, when applicable, ``the reasons why an agent or attorney was
discharged or withdrew from representation before the date of the
decision awarding benefits.'' See Scates, 282 F.3d at 1368.
Beyond these regulatory changes, it is important to remember that
VA's Office of General Counsel does not initiate review of the
reasonableness of fees in every case. However, this does not mean that
a claimant who is unhappy with the representation provided by his or
her agent or attorney, or former agent or attorney, is without
protection and/or potential recourse. First, pursuant to VA's standards
of conduct in 38 CFR 14.632, attorneys and agents are prohibited from
charging, soliciting, or receiving fees that are clearly unreasonable,
and, if an attorney or agent who is found to have violated this
standard of conduct, the attorney or agent would risk losing his or her
accreditation to represent claimants before VA. Second, if a claimant
believes that the total amount of the fee charged, solicited or
received by the attorney or agent was not earned, the claimant may
initiate his or her own motion for VA's Office of General Counsel to
review of the fee. See 38 CFR 14.636(i) (explaining how a claimant
initiates a motion requesting a reasonableness review).

Parts 19 and 20--Board of Veterans' Appeals

VA amends the regulations in 38 CFR parts 19 and 20 as described in
the section-by-section supplementary information below. These
regulations govern appeals and rules of practice for the Board of
Veterans' Appeals.

A. Comments Concerning Sec. 19.2--Appellant's Election for Review of a
Legacy Appeal in the Modernized System

Proposed 38 CFR 19.2(d) discussed the manners in which appellants
with claims or appeals pending in the legacy system may elect to have
their claims or appeals adjudicated in the modernized review system.
One commenter requested clarification regarding the effect of the
phrase ``pursuant to the Secretary's authorization to participate in a
test program'' in 38 CFR 19.2(d)(3), given that 38 CFR 19.2(d)(1) also
addresses election into a test program; specifically, the Rapid Appeals
Modernization Program (RAMP). The commenter did not suggest any
changes.
Section 4(a) of the AMA of 2017 authorizes VA to conduct test
programs to evaluate the assumptions used to develop a plan for
processing legacy appeals and supporting the new appeals system.
Although RAMP is one such program, CFR 19.2(d)(3) acknowledges the more
general authority to conduct test programs that was granted by Section
4(a) of the Appeals Modernization Act. That authority was used to
conduct the Board's Early Applicability of Appeals Modernization
(BEAAM), a small-scale research program conducted to assess preliminary
data about veterans' choices and experiences in the modernized review
system. VA makes no changes based on this comment.

B. Comments Concerning Sec. 19.30--Furnishing the Statement of the
Case and Instructions for Filing a Substantive Appeal; and Sec.
19.31--Supplemental Statement of the Case

One commenter expressed concern regarding the notice provided to
claimants in statements of the case. The commenter remarked that VA
should provide adequate notice to enable a veteran to make a fully
informed decision as to which review option is most appropriate.
However, the commenter did not suggest a specific regulatory change. As
an initial matter, VA notes that statements of the case and
supplemental statements of the case are not contemplated under the
Appeals Modernization Act framework, but will be provided in legacy
claims. To that end, VA agrees that the notice provided with statements
of the case and supplemental statements of the case must contain
adequate information as to the claimant's opportunity to opt into the
new system pursuant to section 2, paragraph (x)(5) of the AMA. In order
to clarify this procedure, VA has amended 38 CFR 3.2400(c)(2) and
19.2(d)(2) to provide that elections to opt into the new system must be
made on a form prescribed by the Secretary.

C. Comments Concerning Sec. 19.35--Certification of Appeals

One commenter noted that while proposing to remove the requirement
for VA Form 8 contained in Sec. 19.35, VA indicated in the preamble
that certification for legacy appeals will be accomplished ``by other
means.'' This commenter asked for clarification of what these other
means will entail. VA is not changing the process by which appeals are
certified to the Board, VA is merely no longer requiring the

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prescribed use of the VA Form 8. Veterans and representatives will
still receive a letter indicating their appeal has been transferred to
the Board and will still be able to determine the status of their
appeal by checking their claims file.
Another commenter expressed concern that the administrative delay
of certification may impact the evidentiary timelines under the Appeals
Modernization Act. Under the Appeals Modernization Act, an appeal is
under the Board's jurisdiction once a valid Notice of Disagreement is
filed. Therefore, it is the filing of the Notice of Disagreement, not
certification, that will determine the evidentiary timeline.
Certification is not consistent with the design of the Appeals
Modernization Act. VA makes no changes based on these comments.

D. Comments Concerning Sec. 20.3--Definitions

A commenter expressed concern that the elimination of the phrase
``argument and/or'' from the definition contained in 38 CFR 20.3(h)
could be interpreted as a means to limit or eliminate arguments from
accredited representatives at a Board hearing. VA directs the commenter
to Sec. 20.700(b), which states, ``The purpose of a hearing is to
receive argument and testimony relevant and material to the appellate
issue or issues.'' VA assures the commenter that the change to Sec.
20.3(h) does not, and was not intended to, limit arguments from
representatives. Rather, the change was merely to eliminate redundant
language that is already contained in Sec. 20.700(b). VA will continue
to accept argument from accredited representatives at a Board hearing.
VA makes no changes based on this comment.

E. Comments Concerning Former Sec. 20.102--Delegations of Authority--
Rules of Practice; Sec. 20.108--Delegation of Authority to Chairman
and Vice Chairman, Board of Veterans' Appeals; and Sec. 20.109--
Delegation of Authority to Vice Chairman, Deputy Vice Chairmen, or
Members of the Board

Two commenters expressed concern that the proposed deletion of
Sec. 20.102 means the delegation of authority rule of practice is
being removed from the Board of Veterans' Appeals. VA assures these
commenters that the delegation of authority described remains in
Sec. Sec. 20.108 and 20.109. The proposed deletion of Sec. 20.102 is
merely to eliminate redundant language. Therefore, VA makes no changes
based on this comment.

F. Comments Concerning Sec. 20.104--Jurisdiction of the Board

A commenter expressed concern that VA proposed deleting the
following language from Sec. 20.104, ``In its decisions, the Board is
bound by applicable statutes, the regulations of the Department of
Veterans Affairs and precedent opinions of the General Counsel of the
Department of Veterans Affairs.'' This commenter felt the removal of
this language suggested the Board would no longer be bound by
precedential opinions of the General Counsel. VA assures the commenter
that the change to Sec. 20.104 does not, and was not intended to,
suggest the Board is not bound by precedential opinions of the General
Counsel. Rather, this change was merely to eliminate redundant language
that is already contained in Sec. 20.105. VA makes no changes based on
this comment.

G. Comments Concerning Sec. 20.105--Criteria Governing Disposition of
Appeals

A commenter suggested VA take this rulemaking to modify 38 CFR
20.105 to clarify the precedential or persuasive value of manual
provisions. As explained in Sec. 20.105, ``The Board is not bound by
Department manuals, circulars, or similar administrative issues.'' VA
makes no changes based on this comment.

H. Comments Concerning Sec. 20.202--Notice of Disagreement

VA received serveral comments concerning Sec. 20.202, and will
therefore address these comments by topic, as follows.
1. Comments Concerning Sec. 20.202(a)--``Specific Determination''
Commenters remarked that the term ``specific determination'' as
used in Sec. 20.202(a) should be defined. An additional commenter also
asked if a veteran could indicate they were appealing ``all issues.''
The language ``specific determination'' was included in the statute.
However, VA agrees that it would be useful to further define this term
in the regulation. VA therefore amends Sec. 20.202(a) to require
identification of the decision and the specific issue or issues therein
with which the claimant disagrees. The amended language references the
definition of issue in 38 CFR 3.151(c). This change will better inform
claimants of the scope of the identification requirement and aligns it
with other AMA implementation definitions.
The Notice of Disagreement needs to contain sufficient information
for VA to determine the issue and adjudication with which the veteran
disagrees. The design of the new Notice of Disagreement form prompts
the veteran to provide the issue and the date of decision with which
the veteran is disagreeing. Additionally, Sec. 20.202 notes that
``[t]he Board will construe such arguments in a liberal manner for
purposes of determining whether they raise issues on appeal.'' This
language protects the rights of a veteran who, for example, incorrectly
identifies the date of the agency of original jurisdiction decision,
but does provide enough information that VA is able to identify the
issue and decision on appeal. Determination of whether an adequate
Notice of Disagreement was filed falls within the Board's jurisdiction.
38 U.S.C. 7105(b)(1)(C). As the proposed rule makes clear, the Board
will construe Notices of Disagreement in a liberal manner for purposes
of determining whether they raise issues on appeal. Finally, if the
Board receives an unclear Notice of Disagreement on the form prescribed
by the Secretary and the Board cannot identify which denied issue or
issues the claimant wants to appeal, or which option the claimant
intends to select, the Board will seek clarification of the Notice of
Disagreement before dismissing the appeal. Therefore, VA makes no
changes based on this comment.
2. Comments Concerning Sec. 20.202(b)(3)--Submission of Evidence in
Conjunction With Notice of Disagreement
Two commenters noted that 38 CFR 20.202 provides time limits on the
veteran's opportunity to submit additional evidence or modify the
Notice of Disagreement to elect a different evidentiary lane, starting
from the date that the Board receives the Notice of Disagreement. The
commenters expressed concern that VA does not provide adequate notice
as to when it received the Notice of Disagreement and therefore the
veteran will not be able to calculate the relevant deadlines. VA has
carefully considered this comment and has determined that no changes to
the regulatory amendments are required. It is currently the Board's
practice to notify veterans and representatives when an appeal has been
received and docketed at the Board. As the precise procedures for
providing such notice may change based on technological systems, as
well as other resources, VA will continue to address this matter
through internal procedural guidance consistent with the law and
regulations. VA makes no changes based on this comment.

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3. Comments Concerning Sec. 20.202(c)--Policies on Modifying the
Notice of Disagreement and Changing Dockets
Several commenters expressed concern with the policies on modifying
the Notice of Disagreement and switching dockets in Sec. Sec.
20.202(c) and 20.800(a)(2). Under Sec. 20.202(c), a veteran may
request a different evidentiary docket than the one selected on the
Notice of Disagreement, as long as the request is made within one year
of the notice of the agency of original jurisdiction decision, or
within 30 days of receipt of the Notice of Disagreement, whichever is
later. This policy accounts for the common situation in which a veteran
files the Notice of Disagreement at the end of the one-year period, and
does not retain representation until after the Notice of Disagreement
is filed. The policy reflected in the proposed rule provided an
additional 30 days after the filing of the Notice of Disagreement so
that the representative has an opportunity to recommend that the
veteran modify the initial choice of an evidentiary record. However, if
a veteran has already submitted evidence or testified at a Board
hearing, the request will be denied. If a veteran requests to switch
into the docket allowing submission of additional evidence, he or she
will have 90 days to submit additional evidence. The 90-day window will
begin on the day that VA issues a letter notifying the veteran that the
request to switch dockets has been granted. Veterans who request to
switch dockets will retain their original docket date, based upon VA's
receipt of the Notice of Disagreement. Therefore, there is no
``penalty'' for switching dockets.
Two commenters asserted that the one-year period referenced in
Sec. 20.202(c) is not authorized by statute and recommended a more
liberal policy. VA does not agree with the statement that the policy
developed by VA is not authorized by the statute. The amendments to 38
U.S.C. 7107(e) authorize the Secretary to ``develop and implement a
policy allowing an appellant to move the appellant's case from one
docket to another docket.'' The statute places no restrictions on the
agency's discretion to impose a time limitation in such policy.
Congress acknowledged this fact in H. Rept. 115-135, noting that,
``H.R. 2288 does not mandate that VA allow veterans to switch from one
option to another. It is expected that the Secretary will use their
discretion to develop policies that are in the best interest of
veterans.''
Turning to a commenter's suggestion that veterans should have
unlimited time in which to switch dockets, VA does not view this policy
as consistent with the design of the new system. Allowing the veteran
unlimited time to modify their Notice of Disagreement would create an
unfair result for other veterans. VA has established a 365-day average
processing time goal for appeals in the direct review docket. VA may
not be able to meet this commitment if some veterans are able to enter
the direct docket ahead of other veterans who have been waiting on that
docket. VA is also committed to transparency, including providing
veterans with accurate data about average processing time on all three
dockets. In the new system, veterans have many choices to tailor their
experience to best suit their individual needs, and this data will
inform their choices. Allowing some veterans to switch dockets at any
time in the process will make it difficult for VA to provide accurate
data to all veterans, effectively taking away their ability to choose
the best path. Moreover, the primary goal of the Appeals Modernization
Act is to create a better, more efficient claims and appeals system
that works for veterans. In the current legacy system, appellants may
add evidence, request a hearing, or withdraw a hearing request at any
time. Allowing appellants to switch lanes at any time would mimic this
feature of the legacy system and preclude the efficiencies built into
the new system, and would thus be contrary to Congress' intent.
To that end, the Congressional Budget Office (CBO) determined that
section 2 of the AMA, directing VA to implement the new process to
handle appeals of claims for veterans' benefits, would be cost neutral.
CBO noted that, ``the current system allows for repeated revisions and
resubmissions of claims . . .'' resulting in wait times of three to six
years and a backlog of approximately 470,000 claims. CBO further noted
that the ``proposed changes are intended to significantly streamline
the appeal process, which would allow appeals to be finalized in a
shorter period of time and require the efforts of fewer employees . . .
[E]fficiencies of the new system would allow the agency to continue
processing legacy appeals under the current system, very gradually
reducing the existing backlog, without the need for additional
employees.''
Several commenters have suggested that the policy deprives veterans
of some of the options available in the new appeals system, because
they may not understand the ramifications of their initial review lane
choice. In particular, one commenter suggested that a veteran who has
been waiting for a long time in the hearing docket should be able to
move to the direct docket. Another commenter expressed concern with the
policy disallowing a change in dockets if the veteran had already
submitted evidence with the Notice of Disagreement. The commenter
suggested that VA should consider allowing veterans who had already
submitted evidence to subsequently request a hearing. The commenter
expressed that this change would not provide an unfair advantage to the
veteran, but would allow a veteran whose circumstances had changed to
request a hearing before the Board.
The Appeals Modernization Act provides several new choices for
veterans seeking review of a VA decision. VA encourages veterans to
seek the advice of their authorized representative, if any, as soon as
possible when determining which option best suits their individual
circumstances and to consider published average wait times associated
with each option. VA understands that circumstances may change to the
extent that a different option is preferable to the one initially
chosen. As noted above, however, VA has carefully balanced the needs of
a veteran wishing to switch dockets against the needs of all the other
veterans waiting for the Board to decide their appeals. The proposed
policy provides an opportunity for a veteran to switch dockets without
creating an unfair disadvantage to other veterans who wish to continue
with their initial choice, but might experience longer wait times as a
result of others switching dockets.
Nevertheless, VA recognizes that exceptional circumstances may
sometimes warrant extensions of the time period to switch dockets on an
individual basis. Accordingly, VA amends Sec. 20.203 to add paragraph
(c), which provides that the time limit for filing a Notice of
Disagreement or a request to modify a Notice of Disagreement may be
extended if the Board grants the appellant's motion for good cause.
Examples of good cause may include serious illness or injury of the
appellant or representative, or the appellant's inability to access
mail services due to homelessness, overseas deployment, or other
reasons. Examples that would not constitute good cause include change
in representation, change in preference of a review option at the
agency of original jurisdiction or among the Board review options,
difficulty in obtaining evidence, or discovery of new evidence during a
period in which the duty to assist does not apply.

[[Page 154]]

In addition to the above, another commenter stated that knowing
wait time predictions (which is linked with timeliness goals) is
important at the time the initial rating decisions are made under the
new system so that claimants can make an informed decision about which
Board docket to choose in a Notice of Disagreement. VA will be
publishing wait times pursuant to the law, but this is not a reason for
any regulation change.
VA does make a change to Sec. 20.202(c) in response to comments on
a related Federal Register notice. Because the Notice of Disagreement
form is not a new information collection, but a revised information
collection under OMB control number 2900-0674, it was not published
with the proposed rulemaking. Rather, notice of the proposed changes to
2900-0674 was published in the Federal Register on August 23, 2018,
pursuant to the Paperwork Reduction Act. 83 FR 42769. One commenter
suggested changes to the Notice of Disagreement for the purpose of
clarifying the procedures for modifying the Notice of Disagreement. The
commenter recommended that VA use a standard form for Notice of
Disagreement modifications. VA agrees with the commenter, and in order
to address the commenter's concerns, VA has amended the procedures
described in Sec. 20.202(c) to state that requests to modify a Notice
of Disagreement for the purpose of selecting a different review option
must be made by filing a new Notice of Disagreement form.
Several commenters remarked that the policy does not provide enough
time to change the initial election in the event that the veteran does
not retain representation until after the Notice of Disagreement is
filed. This concern was originally addressed in the policy by providing
an additional 30 days following receipt of the Notice of Disagreement.
Moreover, the Appeals Modernization Act has shifted important decision
points for veterans seeking review of a VA decision to earlier in the
process. Under the new system, the expert advice of representatives
will, in many cases, be beneficial to veterans as soon as possible
following VA's initial decision on their claim. Veterans may wish to
rely on a representative to assist them in choosing the review option
that best suits their needs. However, VA acknowledges that some
veterans will not retain representation until after they file a request
for review. In light of the commenter's concerns, VA has amended the
policy in Sec. 20.202(c)(2) to provide an additional 60 days following
receipt of the Notice of Disagreement, instead of 30. VA hopes that
this additional time will assist veterans' representatives in better
serving their clients.
4. Comments Concerning Sec. 20.202(d) and (e)--Use of Non-Standard
Form
Under proposed Sec. 20.202(d), the Board will not accept a Notice
of Disagreement ``submitted in any format other than the form
prescribed by the Secretary, including on a different VA form.''
Section 20.202(e) provides that 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). Several commenters requested that the Board provide notice
if it rejects a communication under the circumstances described in
Sec. 20.202(d) and (e). As an initial matter, the statute requires
that Notices of Disagreement are filed on a standard form. VA
implemented standardized forms procedures in 2014. See Standard Claims
and Appeals Forms, 79 FR 57660 (Sept. 25, 2014). This 2014 rule amended
VA's adjudication and appeal regulations to require that all claims and
appeals originate on standard VA forms. Therefore, claimants should be
aware that VA will not accept Notices of Disagreement submitted in any
format other than the form prescribed by the Secretary. VA is
developing procedures for notifying claimants when a communication
cannot be accepted as a Notice of Disagreement. As the precise
procedures for providing such notice may change based on technological
systems, as well as other resources, VA will continue to address this
matter through internal procedural guidance consistent with the law and
regulations. Moreover, VA has a longstanding practice of providing the
status of an appeal or communication upon request. VA makes no changes
based on this comment.
5. Comments Concerning Sec. 20.202(f) and (g)--Clarification of Notice
of Disagreement
One commenter remarked that a Notice of Disagreement could be
rejected by the Board after the Board requested clarification because
the clarification was received one year after the agency of original
jurisdiction decision. This concern is addressed in Sec. Sec.
20.202(f) and 20.202(g). If within one year after mailing an adverse
decision (or 60 days for simultaneously contested claims), the Board
receives an unclear Notice of Disagreement completed on the form
prescribed by the Secretary, then the Board will contact the claimant
to request clarification of the claimant's intent. The claimant must
respond to the Board's request for clarification on or before the later
of 60 days after the date of the Board's clarification request or one
year after the date of mailing of notice of the adverse decision being
appealed (60 days for simultaneously contested claims). VA will follow
the provisions of Sec. Sec. 20.202(f) and 20.202(g), as well as the
statute, 38 U.S.C. 7105(b)(1)(C), which provides that questions as to
timeliness or adequacy of the Notice of Disagreement shall be decided
by the Board.
An additional commenter requested that VA provide a period longer
than 60 days for clarification of a Notice of Disagreement and provide
good cause exception to the rule. The proposed rule providing 60 days
for clarification is based on the current regulation Sec. 19.26, which
provides 60 days for clarification of an unclear Notice of Disagreement
received under the current system. We are not aware of hardship
resulting from the current rule. Therefore, VA makes no changes based
on these comments.
The same commenter wanted to know how the Board will contact
veterans to request clarification. VA will contact veterans via oral,
written, or other means. The commenter did not put forth a specific
recommendation; therefore, VA makes no changes based on this comment.

I. Comments Concerning Sec. 20.203--Place and Time Filing Notice of
Disagreement

One commenter suggested that, when a veteran selects either the
Supplemental Claim or Higher-Level Review options, the one-year time
limit to file a Notice of Disagreement must be tolled. The commenter is
mistaken as to this aspect of the new system framework. Pursuant to the
AMA, a veteran may choose to file a Notice of Disagreement within the
one-year period following an initial agency of original jurisdiction
decision on a claim, a decision on a Supplemental Claim, or a decision
on a Higher-Level Review. Such filing will protect the effective date
for any granted benefit. VA makes no changes based on this comment.
Commenters remarked that Sec. 20.203(b) uses the term
``determination'' as it relates to the requirement of filing a Notice
of Disagreement whereas the term ``decision'' is used in section
Sec. Sec. 3.103, 3.104, and 3.2500. VA proposed the term
``determination'' in Sec. 20.203(b) as this is the term used in the
Appeals Modernization Act to describe the determination with which the
claimant disagrees. However, VA agrees with the commenters' concerns
that use of ``determination'' will lead to confusion,

[[Page 155]]

and therefore amends Sec. 20.203(b) to instead use the term
``decision''. This change does not alter the requirement in Sec.
20.202(a) to identify to specific decision and issue or issues therein
with which the claimant disagrees.
A commenter questioned whether Notices of Disagreement or other
communications can be digitally submitted to the Board through Direct
Mail Upload or electronically submitted through a VA Regional Office
and still be considered as received by the Board. The commenter
expressed concern that these provisions encourage the use of the paper
mail versus the use of electronic/digital submissions. Additionally,
the commenter suggested that the Board's mailing address should be
reflected on standard forms but not the regulations.
Pursuant to 38 U.S.C. 7105(b)(2)(C), notices of disagreement shall
be filed with the Board. Therefore, notices of disagreement may not be
filed with a VA Regional Office. As to the commenter's suggestion that
the Board's mailing address should not be contained in regulation, the
Board is statutorily required to receive notices of disagreement and
motions directly from parties. It has been VA's longstanding policy to
inform the public and settle in law the mailing address to which those
submissions must be sent. VA makes no changes based on this comment.
A commenter expressed concern regarding VA's procedures for mailing
notice to representatives, and in particular the provisions of proposed
38 CFR 20.203(b), regarding timeliness of a Notice of Disagreement. The
commenter asserted that the 90-day evidence window for cases described
in Sec. 20.302 should begin on the date that the appellant is notified
of VA's receipt of the Notice of Disagreement, rather than on the date
of VA's receipt of the Notice of Disagreement. Pursuant to 38 U.S.C.
7113(c)(2), however, the evidentiary record for such cases shall
include evidence submitted ``within 90 days following receipt of the
Notice of Disagreement.'' Accordingly, VA will follow the statute and
will make no changes based on this comment.
The same commenter disagreed with the agency's presumption,
pursuant to Sec. 20.203(b), that notice of a VA decision was mailed on
the date of the letter. The commenter contended that VA correspondence
to representatives is often postmarked after the date of the letter.
The commenter submitted several letters and postmarked envelopes from
VA to individual veterans in support of this argument. Pursuant to 38
U.S.C. 7105(b)(1)(C), questions as to timeliness or adequacy of the
Notice of Disagreement shall be decided by the Board, which is
consistent with the fact that the presumption of regularity is
rebuttable. We further note that the possibility that the presumption
might be rebutted in a non-trivial number of cases does not establish
that it is inappropriate in a system the size of VA's claims system,
which receives and sends millions and millions of pieces of mail each
year. Finally, operational issues of the type mentioned by the
commenter are more appropriately addressed at the sub-regulatory policy
level.
Commenters raised concerns that VA would not extend the filing
deadline for requests for review of a decision. Accordingly, VA amends
Sec. 20.203 to add paragraph (c), which provides that the time limit
for filing a Notice of Disagreement or a request to modify a Notice of
Disagreement may be extended if the Board grants the appellant's motion
for good cause. Examples of good cause may include serious illness or
injury of the appellant or representative, or the appellant's inability
to access mail services due to homelessness, overseas deployment, or
other reasons. Examples that would not constitute good cause include
change in representation, change in preference of a review option at
the agency of original jurisdiction or among the Board review options,
difficulty in obtaining evidence, or discovery of new evidence during a
period in which the duty to assist does not apply.
Additionally, VA corrects a technical error in the title of Sec.
20.203, amending ``Place and time filing Notice of Disagreement'' to
read Place and time of filing Notice of Disagreement''.

J. Comments Concerning Sec. 20.205--Withdrawal of Appeal

One commenter remarked that VA should include clarifying language
regarding withdrawal of appeals to ensure that VA only withdraws claims
when that is the veteran's intention. Initially, VA notes that this is
outside the scope of the Appeals Modernization Act. However, VA is
still bound by the caselaw governing adequate withdrawals of claims and
appeals. Nothing in the Appeals Modernization Act limits this governing
caselaw. VA makes no changes based on this comment.
One commenter remarked that Sec. 20.205(c) is outside the scope of
the Appeals Modernization Act. Section 20.205(c) provides that the
withdrawal of an appeal does not preclude the filing of a new Notice of
Disagreement, a request for higher-level review, or a supplemental
claim as to any issue withdrawn provided such filing would be timely if
the withdrawn appeal had never been filed. The commenter states that
there is no justification for VA to require the refiling to be done
within the initial one year period once a timely Notice of Disagreement
has been submitted. The Appeals Modernization Act also provides the
Secretary the authority to develop and implement a policy for claimants
who wish to withdraw their Notice of Disagreement. The Appeals
Modernization Act clearly provides the claimant one year to seek review
of the agency of original jurisdiction determination. Therefore, this
time period is incorporated into Sec. 20.205(c). Accordingly, Sec.
20.205(c) is not outside the scope of the Appeals Modernization Act,
and VA makes no changes based on this comment.
Commenters suggest that VA should allow a claimant to withdraw an
appeal at the Board in order to file a supplemental claim with VBA
prior to receiving a Board decision. The Appeals Modernization Act
specifically states that for ``purposes of determining the effective
date of an award . . . the date of application shall be considered the
date of the filing of the initial application for a benefit if the
claim is continuously pursued by filing . . . A supplemental claim . .
. on or before the date that is one year after the date on which the
Board of Veterans' Appeals issues a decision'' 38 U.S.C. 5110(a)(2)(D)
(emphasis added). Accordingly, the preservation of the effective date
provisions of the Appeals Modernization Act generally would not apply
to a claimant who withdraws an appeal at the Board and files a
supplemental claim with VBA prior to receiving a Board decision if more
than one year has passed since the agency of original jurisdiction
determination. However, the agency of original jurisdiction may
consider a request for extension of the one-year period in which to
file a supplemental claim in these circumstances while maintaining
continuous pursuit of the claim (see, e.g., Sec. 3.2500(e)(2)).
Accordingly, VA makes no changes to this section based on these
comments.

K. Comments Concerning Part 20, Subpart D--Evidentiary Record

One commenter requested clarification regarding how VA will
adjudicate increased rating claims. The evidentiary record before the
Board is defined by the Appeals Modernization Act. The Appeals
Modernization Act did not change the substantive case law governing
increased rating claims. Accordingly, VA makes no change to the
regulations based on this comment.

[[Page 156]]

One commenter suggested that evidence submitted to (or
constructively received by) the agency of original jurisdiction after a
supplemental claim is adjudicated should be later reviewable by the
Board when an Notice of Disagreement is filed, even if the veteran
selects the Board lane precluding submission of new evidence. This is
contrary to the statutory design of the system. Statutory section 7113
provides that the record before the Board consists of the record before
the agency of original jurisdiction at the time that the supplemental
claim was adjudicated. This rule is clearly mirrored in Sec. 20.301.
If a veteran wants to have VA consider evidence not received by VA
when the record before the agency of original jurisdiction was open,
the available options are to (a) file another supplemental claim with
new and relevant evidence or (b) file a Notice of Disagreement, select
a Board lane allowing submission of new evidence, and submit the
evidence during the applicable 90-day window as provided in Sec. Sec.
20.302 and 20.303. Therefore, VA makes no changes based on these
comments.
The regulations as proposed require the Board to notify a veteran
in a Board decision if the Board did not consider evidence that had
been submitted outside the allowed time period. One commenter asserted
that the regulations should require the Board to additionally notify
the veteran at the time such evidence is received by the Board. The
commenter asserted that waiting to provide such notice until issuance
of the Board decision creates needless confusion and delay. As we
discuss above in the context of VBA decisions, VA does not have
resources available to quickly identify evidence submissions as
untimely and provide notice to the veteran. VA must prioritize
processes which increase efficiency and reduce average processing
times, so that the new system as a whole will be successful. As the
Federal Circuit has stated, ``VA possesses a duty not only to
individual claimants, but to the effective functioning of the veterans
compensation system as a whole. Moreover, because the VA possesses
limited resources, these dual obligations may sometimes compel it to
make necessary tradeoffs.'' Veterans Justice Grp, LLC v. Sec'y of
Veterans Affairs, 818 F.3d 1336, 1351, 1352, 1354 (Fed. Cir. 2016).
However, VA will take the comment under consideration, and will explore
the possibility of developing additional procedures for identification
of untimely evidence in the future to the extent technological and
other resources lessen the associated administrative burden. VA further
notes that there are already procedures in place to inform veterans of
the applicable evidence submission periods and the consequences of
untimely evidence submission. When veterans receive notice of their
initial decisions, they are informed of their available review options
and the periods during which they may submit evidence based on the
options they select. Furthermore, as the commenter acknowledged, if
evidence is received untimely from a veteran, he or she is informed of
that fact when a Board decision is issued, pursuant to proposed 38 CFR
20.801(b)(3). A veteran may resubmit the evidence with a supplemental
claim within one year of the Board's decision and preserve the
effective date associated with his or her appeal to the Board. VA makes
no changes based on this comment.
Under 38 CFR 20.302(a), when a Board hearing is requested in the
Notice of Disagreement, the Board's decision will include consideration
of testimony and evidence submitted by the appellant or his or her
representative at the hearing and within 90 days following the hearing.
Under 38 CFR 20.303(b), when a Board hearing is not requested, but the
veteran elects to submit additional evidence, the Board's decision will
include consideration of evidence submitted with the Notice of
Disagreement and within 90 days following receipt of the Notice of
Disagreement. Several commenters expressed concern or confusion
regarding these proposed evidence submission periods.
Specifically, one commenter expressed concern that veterans who
submit evidence prior to a hearing will not be notified that such
evidence may not be considered by the Board unless it is resubmitted
during the 90-day period following the hearing. The commenter suggested
that the Board advise the appellant on the types of actions available
and that the evidence needs to be presented at the hearing to be
considered by the Board. Additionally, the commenter expressed
appreciation for the discretionary provisions contained in Sec.
20.302(b) and (c), which allows for a 90-day evidence submission period
even when a hearing request is withdrawn or the appellant does not
appear for a scheduled hearing.
When veterans receive notice of their initial decisions, they are
informed of their available review options and the periods during which
they may submit evidence based on the options they select. Pursuant to
Sec. 20.705(b), a Veterans Law Judge presiding over a hearing may find
it appropriate to discuss applicable evidence submission rules and how
those rules apply to an individual veteran's circumstances.
Furthermore, if evidence is received untimely from a veteran, he or she
will be informed of that fact (and the options available to have that
evidence reviewed) when a Board decision is issued, pursuant to section
7104(d)(2) as implemented in proposed 38 CFR 20.801(b)(3). In light of
the statutory direction to provide notice in the Board decision and the
procedures already in place in the proposed regulations to inform
veterans of the applicable evidence submission periods and consequences
of untimely evidence submission, VA makes no changes based on this
comment.
One commenter asserted generally that limiting veterans' ability to
submit evidence to certain time periods represented a shortcoming in
the new system. Another commenter stated that the 90-day evidence
submission window was concerning regarding FOIA requests, specifically,
since FOIA procedures take time to complete. Finally, another commenter
suggested that representatives do not have an opportunity to review the
claims file, compile relevant evidence, and submit argument in support
of the veteran's appeal prior to issuance of a Board direct review
decision, and that a reasonable time period for submission of a written
statement addressing relevant evidence and argument must be written
into the regulations. Although the modernized review system confines
evidence submission to certain periods, the statute and proposed
regulations do not--apart from creating a faster review process--
restrict a representative's ability to submit argument. The design of
the system favors advocacy early in the appeals process because this is
the most efficient way to reach a comprehensive and speedy decision. VA
is confident that veterans' advocates will be able to meet this
expectation. VA made no changes based on these comments.
Another commenter, in addressing proposed 38 CFR 20.302 and 20.303,
expressed concern that those regulations created a timeframe, between
the agency of original jurisdiction's initial decision and the Board
hearing, or the agency of original jurisdiction's initial decision and
submission of a Notice of Disagreement, during which a veteran could
introduce evidence into the record that would not be considered by the
Board. The commenter recommended that VA include provisions allowing
for submission of evidence during those periods, in part because the
commenter interpreted the

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provisions for evidence submission in 38 CFR 20.302 and 20.303 as
inconsistent with each other.
The proposed time periods for evidence submission included in 38
CFR 20.302 and 20.303 are not inconsistent with each other. Rather,
they represent two separate review options defined by the statute. For
each option, the statute clearly specifies what evidence is included in
the record before the Board based on when the evidence is submitted.
Because the proposed regulations track the plain language of the
statute, no changes will be made in response to the comment. VA notes
that, should a veteran submit evidence untimely, he or she generally
may resubmit the evidence with a supplemental claim within one year of
the Board's decision and preserve the effective date associated with
the appeal to the Board. VA makes no changes based on these comments.
Finally, two commenters' discussions reflected general confusion
regarding the timeline for submitting additional evidence under 38 CFR
20.303(b), where the veteran elects in the Notice of Disagreement to
submit additional evidence without a Board hearing. One commenter asked
if a veteran had a total of 150 days to submit additional evidence
following the initial decision--60 days after the initial decision and
90 days after submission of the Notice of Disagreement. Another
commenter remarked that claimants only have 60 days to appeal to the
Board, which is not enough time to compile relevant evidence. VA
initially notes that the commenters are mistaken that veterans only
have 60 days to appeal to the Board--this deadline only applies to
simultaneously contested claims. In other cases, the veteran has one
year from the date of notice of a VA decision to appeal to the Board.
However, if the evidence submission option is chosen (but no hearing),
the veteran may submit evidence with the Notice of Disagreement and
then has a total of 90 days, starting on the day the Notice of
Disagreement is received, to submit additional evidence for
consideration by the Board. Evidence submitted before or after this 90-
day window will not be considered by the Board. The commenters did not
suggest specific amendments; therefore, VA makes no changes based on
these comments.

L. Comments Concerning Sec. 20.600--Applicability

One commenter stated that the regulations concerning hearings on
appeal did not clearly identify which rules pertain to legacy appeals
and referenced the applicability provision at Sec. 20.600(b). The
commenter suggested generally that, to avoid confusion, VA provide more
clarity in this area. The commenter did not make a specific suggestion
for change. VA has attempted in the regulation to be as clear as
possible regarding which regulations apply to legacy claims and which
apply to claims in the modernized review system. For this reason, and
because the commenter did not make a specific suggestion for change, VA
made no changes based on the comment.

M. Comments Concerning Sec. 20.602--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; and Sec. 20.703--When a
Hearing Before the Board of Veterans' Appeals May Be Requested;
Procedure for Requesting a Change in Method of Hearing

Proposed 38 CFR 20.602 and 20.703 describe how the Board will
determine the method of a requested hearing in the legacy and
modernized review systems, respectively. One commenter asserted that
the Board should continue to allow veterans to select from among
available hearing options, rather than the Board making the initial
selection based on the earliest practical date and allowing the veteran
one request for a change in hearing method. 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. Section 102 of
Public Law 114-315, by amending 38 U.S.C. 7107, directs the Board, 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. Proposed 38 CFR 20.602 and 20.703 are necessary to
comply with Public Law 114-315; therefore, VA makes no changes to the
regulations based on this comment.
Another commenter asserted that the hearing method determinations
proposed in 38 CFR 20.602 and 20.703 would only be effective if the
veteran could choose his or her preferred method. The commenter
requested an explanation as to how the Board planned to determine the
method of hearing after such a preference was expressed. In accordance
with revised section 7107 and the regulations as proposed, if a veteran
requests a different hearing method than the one initially assigned by
VA, the veteran's request will be honored. However, VA will only honor
one such request. As the commenter did not suggest an amendment, VA
makes no changes based on this comment.

N. Comments Concerning 20.700--General

One commenter suggested VA retain the option for veterans to submit
electronic records of oral argument to the Board of Veterans' Appeals
in lieu of participating in a formal hearing. The commenter stated that
submitting oral argument would be easier for some veterans, including
those who live in a rural area, since it may be difficult for those
veterans to travel to the nearest VA facility for a formal hearing. VA
proposed removing the provisions to allow for submission of oral
recording in light of the benefits of in-person testimony, as well as
the ability to submit argument through other means when testifying at
an in-person hearing is not practical or desired. Veterans are able to
request a video hearing before a Veterans Law Judge, which benefits
rural veterans. Veterans are also able to submit photographs and other
visual evidence during an appropriate evidentiary window. Finally,
veterans and their representatives are able to submit written argument,
including an informal hearing presentation.
Section 504 of the Rehabilitation Act requires Federal agencies to
provide individuals with disabilities meaningful access to programs,
activities and facilities. Section 794(a) of title 29, United States
Code, states that ``[n]o otherwise qualified individual with a
disability in the United States . . . shall, solely by reason of her or
his disability, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any program or
activity conducted by any Executive agency.'' VA regulations
implementing the Rehabilitation Act are found at 38 CFR part 15. VA is
prohibited from ``[d]eny[ing] a qualified individual with handicaps an
opportunity to participate in or benefit from the aid, benefit, or
service.'' 38 CFR 15.130(b)(1)(i). Also, VA is required to ``furnish
appropriate auxiliary aids where necessary to afford an individual with
handicaps an equal opportunity to participate in, and enjoy the
benefits of, a program or activity conducted by the agency.'' 38 CFR
15.160(a)(1). The term ``[a]uxiliary aids means services or devices
that enable persons with impaired sensory, manual or speaking skills to
have an equal opportunity to participate in, and enjoy the benefits of,
programs for activities conducted by the agency.'' 38 CFR 15.103.

[[Page 158]]

VA's proposed amendments to 38 CFR 20.700 do not indicate any
intent by the Department to forego its obligations under the
Rehabilitation Act and implementing regulations. VA did not propose any
amendments to 38 CFR part 15. Rather, as required by the Rehabilitation
Act and implementing regulations, if an individual has a disability
that prevents or limits his or her ability to submit a written argument
to the Board or attend a hearing at a VA facility and informs the Board
that he or she needs an accommodation that will enable submission of an
argument, the Board will make every effort to meet that need, including
accepting an oral argument on audio cassette. However, given the fact
that 38 CFR part 15 governs Department efforts to ensure that
individuals with disabilities can participate in all VA programs and
that no one has submitted an oral argument on audio cassette to the
Board in recent years, we do not believe it is necessary to maintain
the reference to submission of oral argument on outdated technology in
the new rule. VA notes that, prior to the changes 38 CFR 20.700 that we
proposed and here confirm as final, paragraph (d) of that section made
submission of argument by audio cassette available whenever an
appellant ``cannot, or does not wish to'' appear. That provision made
submission of argument by audio cassette much more broadly available
than is necessary to comply with the Rehabilitation Act. Accordingly,
the elimination of this provision does not create any tension with VA's
continued compliance with its regulations implementing the
Rehabilitation Act.
The commenter also states that VA should consider the efficiencies
to the adjudication process of submission of recordings in lieu of
formal hearings. VA strongly disagrees. Any such efficiencies are
greatly outweighed by the benefits of an in-person hearing, the purpose
of which is to elicit relevant and material testimony, assess the
credibility of witnesses, resolve disputed issues of fact, and pose
follow-up questions to witnesses and representatives. 38 CFR 20.700(b).
As for the suggestion that argument submitted on an audio cassette
would be ``attractive to the schedules'' of clinics and their clients,
VA points out that, under Sec. 20.704(a)(1) and (c), Board hearings
are ``scheduled at the convenience of appellants and their
representatives with consideration of the travel distance involved,''
and a written request to reschedule a hearing ``may be made at any time
up to two weeks prior to the scheduled date of the hearing if good
cause is shown.''
VA therefore makes no changes based on these comments.

O. Comments Concerning Sec. 20.705--Functions of the Presiding Member

Three commenters stated that Sec. 20.705(b)(7), allowing Veterans
Law Judges to reject evidence presented during a hearing on the basis
of irrelevance, contradicts the pro-veteran nature of Veterans' law.
The commenter requested that it be removed, asserting that veterans
should be permitted to submit whatever evidence they wish into the
record and that the Judge would be free to assess the evidence's
probative value. Paragraph (b)(7) states that it is the duty of the
presiding member to exclude documentary evidence, testimony, and/or
argument which is not relevant or material to the issue or issues being
considered or which is unduly repetitious. Paragraph (b)(7) may not be
used to exclude evidence that is relevant to the issue or issues on
appeal. The commenter is correct that veterans may submit evidence and/
or testimony into the record, and that the function of the presiding
Member is to assess the evidence's probative value. Rather, the purpose
of paragraph (b)(7) is to allow the presiding Member to focus hearing
testimony on the issue or issues on appeal.
Another commenter expressed concern that VA is seeking to abrogate
Bryant v. Shinseki, 23 Vet.App. 488 (2010) by including paragraph
(b)(7). These regulations do not and do not intend to limit the holding
of Bryant. This regulation will assist in providing a focused, directed
hearing which will be as assistive as possible to the veteran in
substantiating the claim consistent with Bryant. However, based on the
commenters' concerns, VA will amend Sec. 20.705(b)(7) to state that
the duties of the presiding Member include ``determining whether
documentary evidence, testimony, and/or argument is relevant or
material to the issue or issues being considered and not unduly
repetitious''. This amendment makes clear that VA will not exclude any
evidence, but rather, will assist the veteran in focusing on evidence
that helps to establish the elements of the claim. For example, if the
VA decision on appeal contained a binding favorable finding as to the
veteran's current diagnosis, the presiding Member may instruct the
veteran that no further testimony or other evidence is needed as to the
current diagnosis, as that element of the claim has already been
established.

P. Comments Concerning Sec. 20.714--Correction of Hearing Transcipts

A commenter addressed 38 CFR 20.714, which requires a veteran to
seek correction of the hearing transcript within 30 days ``after the
date that the transcript is mailed'' to the appellant. The commenter
explains that this requirement is not accompanied with an assurance
that a copy of the transcript will be provided to the veteran (unless
requested) and points out that the veteran will not know to ask for the
transcript or seek correction within such a limited timeframe unless
the Board notifies him or her. Under Sec. 20.712, if the appellant or
representative requests a copy of the written transcript in accordance
with Sec. 1.577, the Board will furnish one copy to the appellant or
representative. It would be unnecessary and wasteful to provide written
transcripts where they are not requested; instead the veteran is given
the choice to request a transcript. As stated, upon request, the
transcript will be provided. VA has made no changes based on these
comments.

Q. Comments Concerning Sec. 20.715--Loss of Hearing Tapes Or
Transcripts--Motion for New Hearing

In proposing Sec. 20.715, the title read: ``Loss of hearing
recordings or transcripts--motion for new hearing.'' The inclusion of
the word ``motion'' in the title was an error. Motions are no longer
required, as the content of the rule makes clear. This final rule
revises ``motion'' to read ``request''.
In regard to Sec. 20.715(a)(2), one commenter stated that a
veteran would be unfairly disadvantaged in the event that a recording
is lost through no fault of his or her own, and suggested that
affording the opportunity to submit argument and evidence within 60
days would be more equitable than only giving the veteran 30 days to
respond to a letter asking whether a new hearing was requested.
This rule eliminates the prior requirement that a motion for a new
hearing be made by the veteran prior to VA offering a new hearing. This
formality proved unnecessary in practice because VA often offered a new
hearing without a motion. VA has proposed limiting the time period to
30 days in the interest of expediting the case. It is intuitive that a
veteran who had recently appeared for a hearing would be responsive to
an offered choice. Giving the veteran a choice in the face of a lost or
destroyed recording is consistent with the general theme of the Appeals
Modernization Act. Regarding the commenter's suggestion

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that VA offer a third option--an additional 60 days to submit evidence
or argument in lieu of a new hearing, this is not necessary as this
option already exists. The veteran has 90 days following the Board
hearing in which to submit evidence and may submit argument at any time
prior to the Board decision. Accordingly, the veteran would have
already had an opportunity to submit evidence and argument. VA has made
no changes in response to this comment.

R. Comments Concerning Sec. 20.800--Order of Consideration of Appeals

One commenter expressed concern that the proposed 38 CFR 20.800
removes the authority of the Chairman of the Board of Veterans' Appeals
to expedite (advance on docket) cases on his or her own motion. The
commenter is mistaken, as Sec. 20.800 maintains the authority of the
Chairman to advance cases on the docket on the Chairman's own motion.
(``A case may be advanced on the docket to which it is assigned on the
motion of the Chairman . . .'')
Several commenters raised concerns regarding claims in which the
veteran chooses to appeal to the Board again following a Board remand
and readjudication by the agency of original jurisdiction. Commenters
suggested that such appeals must be automatically returned to the Board
after the readjudication, and the original docket date restored.
Automatically returning appeals to the Board without the veteran's
affirmative election would be inconsistent with the AMA. This facet of
the current regulatory system means that veterans seeking further
review are forced to return to the Board by default, regardless of
whether this is their choice, or the most advantageous option. At the
same time, the Board is compelled to expend limited resources on cases
where the claimant may no longer disagree with VA's decision, delaying
adjudication of new appeals.
In contrast, the AMA provides veterans with review choices whenever
a VA decision is issued, without regard to whether the decision follows
a remand from the Board. A veteran whose case is returned by the Board
for readjudication has the same options as a veteran seeking review for
the first time. In many instances, one of the agency of original
jurisdiction lanes will be a better review option for a veteran whose
case is adjudicated following remand, rather than an appeal to the
Board. VA makes no changes based on this comment.

S. Comments Concerning Sec. 20.801--The Decision

Multiple commenters asserted that the general statement required
under proposed 38 CFR 20.801(b)(3) will not adequately inform veterans
of the evidence that was not considered in a Board decision due to
untimely submission. The commenters recommended that the Board decision
include a more detailed description of the evidence that was not
considered, to include noting the date unconsidered evidence was
submitted. One of those commenters also asserted that the proposed
regulations did not create an avenue for informing a veteran what
recourse he or she has when evidence is not considered by VA. The law
requires that each decision will contain 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. See AMA section 2(w)(2)(C). The information in the decision
should be the avenue for the pertinent information the veteran requires
to prevail on the claim. As the precise procedures for providing more
detailed notice may change based on technological systems, as well as
other resources, VA will continue to address this matter through
internal procedural guidance consistent with the law and regulations.
VA made no changes based on these comments.

T. Comments Concerning Sec. 20.802--Remand for Correction of Error

Several commenters suggested that the Board should expedite claims
in which the veteran chooses to appeal to the Board again following a
Board remand and readjudication by the agency of original jurisdiction.
One commenter specifically stated that Sec. 20.800(e), providing that
a new Notice of Disagreement filed after a reajudication by the agency
of original jurisdiction will be docketed according to the date of the
new Notice of Disagreement, was in conflict with Sec. 20.802(c), which
provides that the agency of original jurisdiction must provide for the
expeditious treatment of any claim that is remanded by the Board.
VA disagrees that the rules are in conflict. Section 20.802(c)
requires that the agency of original jurisdiction treat remands from
the Board expeditiously; it does not require expeditious treatment by
the Board. This section is consistent with revised 38 U.S.C. 5109,
which provides: ``The Secretary shall take such actions as may be
necessary to provide for the expeditious treatment, by the Veterans
Benefits Administration, of any claim that is returned by a higher-
level adjudicator under section 5104B of this title or remanded by the
Board of Veterans' Appeals.'' This provision does not apply to the
Board. Accordingly, 20.800(e) is consistent with the statute and there
is no conflict between Sec. Sec. 20.800(e) and 20.802(c).
In amending 38 U.S.C. 5104B, Congress chose not to include a
requirement that the Board expedite cases re-appealed to the Board
following remand. If the Board were to expedite new appeals following
remand, adjudication of other appeals at the Board would be delayed. In
addition, as discussed above, under the new system the veteran must
file a new Notice of Disagreement following the decision on remand to
elect review by the Board. The Notice of Disagreement initiates a new
appeal at the Board that may challenge the adjudication below on an
entirely new basis on a new evidentiary record. Given these factors and
Congress' choice to limit the scope of section 5104B, prioritizing
adjudication according to the date the Notice of Disagreement is
received (within the evidentiary lane selected) achieves a reasonable
balance among the interests at stake. VA makes no changes based on
these comments.
A commenter questioned how appeals returned from CAVC would be
docketed. The AMA did not change the procedures at the Board for
expediting cases returned from CAVC. Consistent with 38 U.S.C. 7112,
the Board will continue to expedite the adjudication required by a CAVC
remand. Notably, CAVC remands require the Board to readjudicate the
appeal based upon the same record previously before the Board;
accordingly, such appeals would be placed on the same docket that the
veteran was on previously. VA makes no changes based on this comment.
A commenter expressed general concerns as to how advisory medical
opinions will be implemented pursuant to Sec. 20.802(b). The commenter
stated, ``[w]hile 38 [CFR] 20.802(c)(1)(ii) allows thorough
consideration of the issues presented in the claim by experienced Board
personnel and gives the Board broad authority to request IMOs in
remands, we are concerned that this important tool may be buried under
the clunky procedures in the regulation.'' The commenter did not offer
any specific suggestions or recommendations for this rulemaking, but
did suggest that the new procedures placed a greater burden on the
veteran to request an advisory medical opinion at the claim stage. The
AMA eliminated

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the statutory provision which previously authorized the Board to
independently request medical opinions, and created a new process by
which the Board orders such opinions through remands. 38 U.S.C.
5103A(f)(2)(B). Section 20.802(b) implements the statutory amendments
to this process. Therefore, VA makes no changes based on this comment.
A commenter expressed concern that because remanded cases are no
longer returned to the Board per the proposed rule, the Board will not
be able to ensure that the agency of original jurisdiction complied
with all remand directives, consistent with Stegall v. West, 11 Vet.
App. 268, 271 (1999). The commenter urged VA to develop and implement a
dedicated quality review methodology for Board remands. The design of
the new system provides ample protections to ensure that subsequent
adjudicators comply with the Board's remand directives. The AMA
requires that any pre-decisional duty to assist error discovered by an
adjudicator be cured and that the decision be readjudicated by the
agency of original jurisdiction. Following readjudication, the veteran
may again request Higher-Level Review, file a Supplemental Claim, or
appeal to the Board. If such action is taken within one year, the
original effective date will be preserved.
Regarding the commenter's recommendation for dedicated quality
review, the Direct Review 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. VA makes no changes based on these comments.

U. Comments Concerning Sec. 20.1003--Hearing on Reconsideration

A commenter contended that the provision of Sec. 20.1003
precluding a hearing on allowed Motions for Reconsideration unless the
veteran had requested a hearing on the underlying Notice of
Disagreement violates due process. The commenter remarked that a Motion
for Reconsideration is solely based on the Board's decision and
therefore should not be affected by the Notice of Disagreement, which
was filed prior to the Board's decision. As laid out in Sec. 20.1003,
hearings are only provided if a motion for reconsideration has been
allowed. Once allowed, the Chairman will assign a panel to adjudicate
the underlying issues that were before the Board. This means the
reconsideration panel continues to adjudicate pursuant to the Notice of
Disagreement which led to the prior Board decision. Under the Appeals
Modernization Act, the Notice of Disagreement indicates the claimant's
selection of a Board review option. For consistency purposes and
because reconsideration is an adjudication pursuant to the Notice of
Disagreement, VA makes no changes based on this comment.

V. Comments Concerning Sec. 20.1103--Finality of Determinations of the
Agency of Original Jurisdiction Where Issue Is Not Appealed

Two commenters were concerned that Sec. 20.1103 did not make clear
the continued applicability of Sec. Sec. 3.105 and 3.156(c) to all
claims. Additional commenters recommended adding a reference to CUE and
38 CFR 3.105 in proposed Sec. 20.1103. VA agrees that prior to the
initial decision on the claim VA must consider VA records as explained
in Bell v. Derwinski, 2 Vet. App. 611 (1992). The Bell doctrine of
constructive possession will continue to apply, unchanged, while the
duty to assist applies. This means that until the veteran receives the
notice of decision of his claim or supplemental claim, all treatment
records in the agency's possession are deemed associated with the
veteran's file. The other commenter wanted VA to include a reference to
Sec. 3.156(c) in proposed regulation Sec. 20.1103; this is
unnecessary because Sec. 3.156(c) was untouched by the Appeals
Modernization Act. Neither inclusion is necessary, and VA makes no
changes based on these comments.

W. Comments Concerning Sec. 20.1302--Death of Appellant During
Pendency of Appeal Before the Board

A commenter suggested that VA should modify 38 CFR 20.1302 to
provide that a substituted appellant will have similar timeframes to
those the veteran would have had in the modernized appeal system. The
language of 38 CFR 20.1302 already provides this policy. The amended
rule provides that a substituted appellant will assume the veteran's
appeal in its original place on the docket. That means, the substituted
appellant will maintain the same evidentiary timeframes of the docket
the veteran selected. Furthermore, the substituted appellant will be
free to submit argument in support of their appeal. VA makes no changes
based on this comment.

X. Comments Concerning Sec. 20.1304--Request for a Change in
Representation

A commenter suggested that the timeframe for changing
representation should mirror the timeline for submitting evidence, so
that if the record is closed the veteran is no longer able to switch
representation. This commenter explained once the record is closed,
representation is ``seriously constrained as to the strategy of the
appeal at that stage.'' VA proposed to maintain the 90-day window to
change representation once an appeal is at the Board in Sec. 20.1304
so that it mirrors the policy in place under the legacy system.
Representatives maintain the ability to decline representation if they
determine they cannot adequately support the veteran's appeal.
Furthermore, representatives maintain the ability to submit argument on
the veteran's appeal. VA makes no changes based on this comment.

Y. Comments Concerning Sec. 20.1305--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

Another commenter asked VA to add language to proposed 38 CFR
20.1305 acknowledging the possibility of multiple 90-day notices and
the opportunity for multiple Board hearings in a legacy system claim.
In support of that request, the commenter asserted that multiple Board
hearings are provided for in continuously pursued claims in the modern
review system, provided a veteran had filed a supplemental claim
between the hearings. However, the commenter is conflating the concept
of continuous pursuit for the purposes of preserving an effective date
and the concept of a continuous claim for the purposes of providing
development such as a Board hearing. The modernized review system does
not specifically provide for multiple Board hearings during processing
of a single claim. Thus, the commenter's assertion that the legacy
system regulation should mirror the provisions applicable to Board
hearings in the modernized system is misplaced. VA makes no changes
based on this comment.
One commenter objected to the option in the new system for a
veteran who receives an adverse Board decision to file a supplemental
claim based on new and relevant evidence, asserting that this option
may operate to prevent finality and judicial review. The commenter was
concerned that a

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veteran in receipt of an adverse Board decision might be tempted to
exercise the option to file a supplemental claim, causing the veteran
to return to the first step of the adjudication process and thereby
prolonging resolution of the claim. Because the option to file a
supplemental claim following a Board decision is a feature of the
statute, VA does not have discretion to adopt a different procedure. In
any event, filing a supplemental claim following a Board decision is
optional, and the veteran may instead choose to file an appeal with the
U.S. Court of Appeals for Veterans Claims or, alternatively, file a
request with the Board for revision based on clear and unmistakable
error once the judicial appeal period has expired. To the extent that
the commenter suggests that VA adjudicators will be predisposed to deny
supplemental claims, any such predisposition is against VA policy.
Adjudicators are required to review a supplemental claim objectively
and fairly based on its merits under applicable law. VA makes no
changes based on this comment.

Z. Comments Concerning Sec. 20.1403--What Constitutes Clear and
Unmistakable Error; What Does Not

One commenter questioned why VA inserted a time limitation on the
evidence in Sec. 20.1403 that would affect legacy appellants. However,
this final rule does not amend the 90-day time period already mentioned
in Sec. 20.1403; there is no new time limitation.
Another commenter expressed concern that the proposed regulations
newly restrict evidence that may be submitted in support of a motion
for revision of a prior Board decision based on CUE or, at the least,
do not seem to accommodate the possibility, under the modernized
system, of submitting additional evidence to support a CUE motion via a
supplemental claim. However, the outcome of CUE continues to be based
on the evidence of record before the Board at the time of the prior
Board decision. That underlying consideration is unchanged by the
Appeals Modernization Act. To the extent that the description of CUE in
Sec. 3.105(a) has been expanded in the proposed regulations, that
expansion merely incorporates longstanding caselaw. As the outcome of a
CUE motion continues to depend upon whether the correct facts, as they
were known at the time of the decision, were before the adjudicator,
and whether the statutory and regulatory provisions extant at the time
were correctly applied, VA makes no changes based on this comment.

AA. General Comments

Several commenters encouraged VA to create timeliness goals
regarding the processing of legacy and Appeals Modernization Act cases.
One commenter suggested that the regulations should include a provision
requiring that representatives have access to online tools that provide
wait time predictions and appeal status. VA has carefully considered
this comment, and has determined that no changes to the regulatory
amendments are required. The issue raised by the commenter concerns a
sub-regulatory policy determination within the agency's discretion. VA
will address this matter through internal procedural guidance
consistent with the law and regulations.
One commenter stated that VA should amend the regulations to
specify the time period when the claimant and representative may submit
a written argument when the claimant files a Notice of Disagreement and
requests direct review without the opportunity for a hearing or to
submit additional evidence. The proposed regulations did not limit the
period when written argument can be submitted to the Board between the
filing of an NOD and issuance of the Board decision. We do not believe
that imposition of a time period for submission of argument would
appreciably speed up the appellate process, and it could deprive the
veteran of an opportunity to argue in favor of his or her claim. VA
makes no changes based on this comment.
One commenter remarked that VA should define the term ``timely'' in
regulation, and that failure to do so would be unlawful. The AMA did
not amend 38 U.S.C. 7101 which already provides that the Board must
have sufficient resources to ``conduct hearings and dispose of appeals
properly before the Board in a timely manner.'' However, VA may not
determine future resource levels without Congressional authorization.
Defining the term ``timely'' in regulation would be improper as it
would infringe on the appropriations process. Only Congress may
determine whether VA requires additional resources. Therefore, VA makes
no changes based on this comment.
Several commenters expressed concern that the new system will be
too complicated and will disadvantage pro se claimants. The fundamental
features of the framework are required by law; however, VA acknowledges
the commenter's concern and remains committed to the non-adversarial
process.
One commenter asked whether, if a veteran has an appeal in the
legacy system that becomes inextricably intertwined with an issue in
the modernized appeal system, the veteran will be given the choice to
remain in the legacy system or have both issues proceed in the
modernized system. VA has carefully considered this comment and has
determined that no changes to the regulatory amendments are required.
The issue raised by the commenter may be dealt with as a sub-regulatory
policy determination within the agency's discretion. VA makes no
regulatory changes based on this comment, but will address this matter
through internal procedural guidance consistent with the law and
regulations.
One commenter remarked that the ability to select different review
options for different claims will cause confusion and asked if claims
can be rejoined once the claimant selects different review options. VA
will respect the veteran's choice to select different review options
for different issues. A claimant may choose to modify the Notice of
Disagreement, as provided in Sec. 20.202(c), if he or she wishes to
change review options. Thus, it is possible for a claimant to
``rejoin'' claims as described by the commenter. However, VA will not
automatically rejoin claims for administrative efficiency purposes or
any other reason unless the claimant specifically requests this under
Sec. 20.202(c). The fundamental features of the framework are required
by law, and VA encourages claimants to discuss their review options
with their representatives, if they have one. Claimants have one year
from the date of notification of the rating decision on appeal to
modify their review option. VA makes no changes based on this comment.
One commenter suggested that VA does not need to create a third
docket at the Board for Veterans' Appeals for veterans who wish to
submit new evidence without holding a hearing, since the Appeals
Modernization Act only required a minimum of at least two dockets. This
commenter suggests veterans who submit additional evidence within 90
days of the Notice of Disagreement should be maintained on the same
docket as the closed record review. VA has considered this comment, but
determined that combining the direct review and evidence only dockets
would be contrary to the spirit of the Appeals Modernization Act. One
key advantage of maintaining a separate docket that does not allow for
a hearing or submission of additional evidence is that the Board
reviews the same record

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that was before the agency of original jurisdiction. This review
provides VA with a quality feedback loop, in which VA is able to
identify trends and areas for correction in the adjudications by the
agencies of original jurisdiction. This quality feedback loop will
provide for more targeted training of VA staff to ensure accurate
adjudication of claims. If additional evidence was added to appeals in
this lane, then the Board's determination may be based on the changed
record and would no longer provide the same direct quality review
feedback. VA makes no changes based on this comment.
A commenter suggested that if a veteran who has an appeal pending
with the Board submits evidence, this new evidence should automatically
be considered as a supplemental claim. This suggestion is contrary to
the framework established in the Appeals Modernization Act.
Specifically, the Appeals Modernization Act explicitly provides that
once a veteran chooses a review option he/she may not pursue another
review option until a decision is received or the veteran affirmatively
withdraws the initial review option. 38 U.S.C. 5104C(a)(2)(A).
Accordingly, VA makes no changes based on this comment.
One commenter remarked that VA should provide a formal application
for a motion for CUE. The purpose of this rulemaking is to amend VA's
claims adjudication, appeals, and Rules of Practice of the Board of
Veterans' Appeals regulations as required to implement the AMA.
Nevertheless, VA will take the commenter's suggestion under advisement.
Additional commenters suggested that VA create a standardized form
for Veterans to use in withdrawing appeals before the Board. The
purpose of this rulemaking is to amend VA's claims adjudication,
appeals, and Rules of Practice of the Board of Veterans' Appeals
regulations as required to implement the AMA. Nevertheless, VA will
take the commenters' suggestion under advisement.

BB. Comments Concerning VA Form 10182--Notice of Disagreement

One commenter raised concern that the required forms referred to in
the regulations were not published as part of the rulemaking proposal.
Because the Notice of Disagreement is not a new information collection,
but a revised information collection under OMB control number 2900-
0674, it was not published with the proposed rulemaking. Rather, notice
of the proposed changes to 2900-0674 was published in the Federal
Register on August 23, 2018, pursuant to the Paperwork Reduction Act.
83 FR 42769. The fact of separate publication was noted at the proposed
rule stage and publication of the notice closely followed publication
of the rulemaking proposal. As noted in the notice, a copy of the draft
form will be provided upon request. VA makes no change based on this
comment.
One commenter expressed concern that VA forms are too long and
suggested the information could instead be found on a web page. VA
wants to ensure all Veterans have access to the important information,
including those Veterans without access to the internet. Therefore, VA
will continue to include this information on the forms. However, VA has
worked to streamline the design of these forms and the accompanying
information. VA makes no change based on this comment.

CC. Comments of Scope

Two commenters inquired about VA's plan regarding staffing,
personnel issues, and training. These comments are outside the scope of
the rulemaking.

Part 21--Vocational Rehabilitation and Education

VA received two comments specifically related to Vocational
Rehabilitation and Education (VR&E). One comment concerned VR&E's lack
of automation and how that may impact timely processing of payments to
facilities. The comment stated ``VR&E is antiquated and may need
updates. For example, it is not automized, at least for certifying
officials, which means some certifications may fall into a `black
hole'. Schools often wait up to 6 months to receive payment.'' This
comment is not related to appeals processing and does not affect the
rule. Therefore, VA makes no changes to the rule based on this comment.
The second comment stated ``VR&E is also significantly
understaffed. How would current staffing accommodate the new lanes of
appeals? For example, one of the proposed ``lanes'' would enable a
claimant to get a second opinion on VA's claims decision. If VR&E
employees are busy giving second opinions, what type of further backlog
would this create for newly submitted claims? Or would the newly-
required second opinion in appeals fall by the wayside?'' VR&E
currently has a process in place for ``second opinions'', which VA
refers to as administrative reviews. Administrative reviews are very
similar to a higher-level review in the new appeals process. Under
VR&E's current processes, administrative reviews are completed by
management level personnel at the regional office, and in some very
specific situations, at the Central Office level. Under the new appeals
process, management level personnel, as well as supervisory personnel
who are not currently permitted to perform administrative reviews, will
be tasked with completing higher-level reviews. As such, VR&E will have
more employees available to perform higher-level reviews than it does
under the current system for administrative reviews. VR&E does not
anticipate an increase in the number of requests for a ``second
opinion'', or higher-level review, under the new appeals process than
it receives under the current administrative review process. In
addition, it is important to note that newly submitted claims are
processed by non-management level VR&E staff, Vocational Rehabilitation
Counselors (VRC). VRCs will not be performing higher-level reviews.
Lastly, and unrelated to the new appeals process, VR&E is currently in
the process of hiring an additional 169 VRCs across the nation. These
VRCs manage all aspects of the claims process, including newly
submitted claims. Therefore, based on these many factors, staffing
issues are not an identified area of concern for VR&E under the new
appeals process; as such, VA makes no changes to the rule based on this
comment.
One commenter expressed concern about the impact implementation of
the AMA may have on the implementation of the Forever GI Bill. VA does
not expect implementation of the AMA to impact ongoing benefits or the
implementation of the Forever GI Bill.
Finally, several commenters urged consistent use of terms,
definitions, and descriptions. Based on comments received relative to
Part 3, redundant language in Sec. 21.416 is adjusted to refer back to
part 3, specifically Sec. 3.2601, in order to avoid potential
confusion. Additionally, references to timeliness goals in Sec. 21.416
have been removed for reasons discussed.

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 rule includes provisions constituting

[[Page 163]]

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. 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.
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 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: Decision Review Request: Supplemental Claim (VA Form 20-
0995).
OMB Control No.: 2900-XXXX (NEW).
CFR Provisions: 38 CFR 3.160(a), 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 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 known 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
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
benefits.
Description of need for information and proposed use of
information: The collection of information is necessary to determine
the issue(s) upon which a claimant is dissatisfied and seeks to
initiate a supplemental claim for VA disability benefits. VA will use
this information to initiate or determine the claimant's eligibility
under the supplemental claim in accordance with the AMA.
Description of likely respondents: Veterans or claimants who
indicate dissatisfaction with a decision issued by a VA agency of
original jurisdiction and would like review of new and relevant
evidence in support of their claim for disability 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 other 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: Decision Review Request: 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 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) upon which a claimant is dissatisfied and seeks higher-
level review by VA. VA will use this information to initiate a higher-
level review by an agency adjudicator in accordance with the AMA.
Description of likely respondents: Veterans or other claimants who
indicate dissatisfaction with a decision issued by a VA office agency
of original jurisdiction.
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

[[Page 164]]

overhead costs for completing the information collection.

Title: Decision Review Request: Board Appeal (Notice of
Disagreement) (VA Form 10182).
OMB Control No.: 2900-0674.
CFR Provisions: 38 CFR 20.202.
Summary of collection of information: 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 Decision Review Request:
Board Appeal (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)(3). 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 (38 CFR 20.6), requests by appellants for changes in
hearing dates or methods (38 CFR 20.703), and motions for
reconsideration of Board decisions (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 other claimants who
indicate dissatisfaction with a decision issued by a VA agency of
original jurisdiction, 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 representatives. 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 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).
Although it is difficult to predict the percentage of respondents that
will be able to take advantage of the new system forms each year
beginning in February 2019, VA estimates that the incremental
information collection costs for respondents will be $1,092,258 in
FY2019. VA has also determined there will be incremental information
collection savings of $6,258,423 over a five-year period, once the
legacy forms are no longer in use. This equates to approximately $1.25
million per year or $1.77 million per year on an ongoing basis
discounted at 7 percent relative to year 2016, over a perpetual time
horizon. This final rule is considered an E.O. 13771 deregulatory
action.

Regulatory Flexibility Act

The Secretary hereby certifies that these regulatory amendments
will not have a significant economic impact on a substantial number of
small entities as they are defined in the Regulatory Flexibility Act, 5
U.S.C. 601-612. These amendments will not directly affect any small
entities. Only VA beneficiaries and their survivors would 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 rule have been examined, and it has been
determined that this is an economically significant regulatory action
under Executive Order 12866. As discussed in the Paperwork Reduction
Act section of this final rule, we estimate that this final rule will
lead to paperwork cost savings of approximately $1.77 million This rule
is expected to be an E.O. 13771 deregulatory action. Details on the
estimated cost savings of this 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.

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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 will have no such effect on
State, local, and tribal governments, or on the private sector.

Congressional Review Act

The Secretary of Veterans Affairs finds that there is good cause
under the provisions of 5 U.S.C. 808(2) to publish this final rule
without prior Congressional review and to make the rule effective on
February 19, 2019.
This final rule meets the ``impracticable'' and ``public interest''
exceptions in 5 U.S.C. 808(2) because any delay in implementing the
rule would have a severe detrimental impact on Veterans seeking
benefits. VA's legacy appeals process is overly complex and can take
many years for claimants to receive resolution on their claims. Under
the legacy appeals process, Veterans wait an average of 3 years for a
final decision if they choose to appeal, and an average of 7 years if
they continue their appeal to the Board. The Veterans Appeals
Improvement and Modernization Act authorizes a streamlined process that
provides Veterans and other claimants with choices when seeking review
of a VA decision and much faster resolution. This rule is necessary to
implement the Act, and provides much-needed comprehensive reform for
the legacy appeals process. VA estimates that under this rule the
average time to complete an appeal will be approximately 2 years less
than under the legacy appeals process. However, Congress required
within the Act that VA have the `resources, personnel, office space,
procedures, and information technology required' to implement the new
system. VA cannot implement the Act as planned without final
regulations allowing claimants to participate in the new system.
Delaying the effective date of this final rule will prolong the
existence, and result in an increased number of legacy process appeals,
thus increasing the number of appeals that are subject to, and will
themselves add to, severe delays in appeals processing and a prolonged
inability for Veterans to timely receive their earned benefits.
While the severity of the impact on Veterans seeking benefits
constitutes good cause to implement these presumptions with an earlier
effective date, there is an additional basis for the Secretary's
decision that good cause exists. Although the rule is a major rule
under the Congressional Review Act, VA believes that this rule will not
result in any new or increased benefit payments (transfers) to
claimants. Furthermore, the transfers associated with this rulemaking
($100 million or more in any given year), which would already be due to
Veterans, would be the same with or without this rule. The difference
is simply because VA believes that the rule will lead to claimants
receiving a decision earlier than they would under the legacy appeals
process, causing a shift in the timing of benefits paid to Veterans and
other beneficiaries to earlier fiscal years.
Lastly, VA would be obligated to pay these transfers regardless of
timing and the amount of transfers awarded to veterans would not be a
result of this rulemaking. Since the rule will reduce the time it takes
to review or adjudicate an appeal, the benefits will be paid much
quicker than under the legacy appeals process. VA believes that total
benefits paid to an individual beneficiary granted a positive appeal
decision would be the same under both this rule and the legacy appeals
process; only the timing of these payments would differ. The provisions
of this rule do not go beyond the intent or structure of the Act, which
was enacted after the Congress received a cost-neutral assessment from
the Congressional Budget Office. Therefore, because Congress itself has
already committed to the structure that is causing the timing of the
benefits payments to be ``pulled forward'' in time and is aware of the
impact of the law as enacted, it would be unnecessary and contrary to
the public interest to delay the effective date of the final rule to
allow for the congressional review contemplated by the Congressional
Review Act. Accordingly, the Secretary has determined that there is
good cause under 5 U.S.C. 808(2) to publish this final rule with a
February 19, 2019 effective date.
VA received 29 comments in response to the proposed rule. The
comments received were generally requests for clarification or
recommendations for substantive changes. In turn, the majority of
changes made in response to comments were clarifying in nature,
conformed the regulations more closely to the statutory requirements,
or, where substantive, were of a pro-claimant nature. The comments
received and subsequent changes made were not controversial. For
example, based on commenter suggestions, VA provided additional clarity
on the definitions of ``claim,'' ``issue,'' and ``new evidence.'' VA
made changes to the evidentiary standard used to overturn favorable
findings that provided greater protection to claimants, made
improvements to the notice provided to claimants regarding
opportunities to opt into the new system, and extended the amount of
time appellants have to modify their Notice of Disagreement.
Additionally, parts 8 and 21 were updated in several areas to more
closely align with the language of the Act.
As noted, the comments received, and changes made in response,
generally only addressed marginal aspects of the rule, and did not
oppose the underlying substance of the rule, which mainly implemented
mandatory requirements imposed by Congress in the Act. This
demonstrates that a delay of the effective date of the rule for an
additional period of congressional review for an assessment of the
burden on the public would be unnecessary.
Accordingly, the Secretary finds there is good cause to dispense
with the opportunity for prior Congressional review and to publish this
final rule with an effective date on February 19, 2019.

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

[[Page 166]]

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.

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 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. Robert L.
Wilkie, Secretary, Department of Veterans Affairs, approved this
document on November 29, 2018, for publication.

Dated: December 21, 2018.
Consuela Benjamin,
Regulations Development Coordinator, Office of Regulation Policy &
Management, Office of the Secretary, Department of Veterans Affairs.

For the reasons set forth in the preamble, VA amends 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 or electronic 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); issues within a claim, Sec. 3.151(c)).
(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. The first initial claim for one or more benefits received by
VA is further defined as an original claim. (See original claim, Sec.
3.160(b)). Initial claims include:
(i) A new claim requesting service connection for a disability or
grant of a new benefit, and
(ii) A claim for increase in a disability evaluation rating or rate
of a benefit paid based on a change or worsening in condition or
circumstance since the last decision issued by VA for the benefit.
(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 or supplemental claim for the same or similar benefit
on the same or similar basis was previously decided. (See supplemental
claim; Sec. 3.2501.)
* * * * *

Sec. 3.31 [Amended]

0
3. In Sec. 3.31, remove the word ``reopened'' and add in its place the
word ``supplemental''.

0
4. 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 as provided in paragraph (d) of this
section, 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 (c)(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 that is submitted by a claimant, associated
with the claims file, or constructively received by VA as described in
paragraph (c)(2)(iii) of this section, 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
as described in Sec. 3.156(c) and under the following circumstances:
(i) Receipt of a complete claim. The agency of original
jurisdiction subsequently receives a complete application for a
supplemental claim or initial claim; or
(ii) Board and higher-level review returns. A claim is pending
readjudication after identification of a duty to assist error (which
includes an error resulting from constructive receipt of evidence prior
to the notice of decision), 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 or
associated with the

[[Page 167]]

claims file while the record was closed will become part of the
evidentiary record to be considered upon readjudication.
(iii) Constructive receipt of VA treatment records. Records within
the actual custody of the Veterans Health Administration are deemed
constructively received by the Veterans Benefits Administration at the
time when the Veterans Benefits Administration had knowledge of the
existence of said records through information furnished by the claimant
sufficient to locate those records (see 38 U.S.C. 5103A(c)).
(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 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
5. 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 Sec. 3.103(f)(4), or by
the Board of Veterans' Appeals, as described in Sec. 20.801(a) of this
chapter, is binding on all subsequent agency of original jurisdiction
and Board of Veterans' Appeals adjudicators, unless rebutted by
evidence that identifies a clear and unmistakable error in the
favorable finding. 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
6. 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

[[Page 168]]

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 the agency of original
jurisdiction, with respect to the evidentiary record and law existing
at the time of the decision, unless the decision 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
7. In Sec. 3.110, amend paragraph (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''.

Sec. 3.114 [Amended]

0
8. In Sec. 3.110, remove the word ``reopened'' and add in its place
the word ``supplemental''

0
9. Amend Sec. 3.151 by revising paragraph (a) and adding paragraphs
(c) and (d) to 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 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
10. 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.
(i) Supplemental claims. Upon receipt of a communication indicating
a belief in entitlement to benefits that is submitted in wiritng or
electronically on a supplemental claim form prescribed by the Secretary
that is not complete as defined in Sec. 3.160(a) of this section, the
Secretary shall notify the claimant and the claimant's representative,
if any, of the information necessary to complete the application form
prescribed by the

[[Page 169]]

Secretary. If VA receives a complete claim within 60 days of notice by
VA that an incomplete claim was filed, it will be considered filed as
of the date of receipt of the incomplete claim (see Sec. 3.2501).
(ii) 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
11. Amend Sec. 3.156 as follows:
0
a. Revise the section heading;
0
b. Add introductory text;
0
c. Revise paragraph (a);
0
d. Revise the paragraph (b) heading; and
0
e. Add paragraph (d);
The revisions and additions read as follows:

Sec. 3.156 New evidence.

(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. New evidence means
evidence not previously considered by agency adjudicators. 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, as defined in
Sec. 3.2501(a)(1), 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
12. Amend Sec. 3.158 by revising the first sentence of paragraph (a)
to read as follows:

Sec. 3.158 Abandoned claims.

(a) * * * 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
13. Amend Sec. 3.159 as follows:
0
a. Revise paragraph (a)(3);
0
b. Revise the first and last sentence of paragraph (b)(1);
0
c. Revise paragraph (b)(3);
0
d. Add paragraph (b)(4);
0
e. Revise paragraph (c) introductory text;
0
f. Revise paragraph (c)(4)(iii);
0
g. Add paragraph (c)(4)(iv); and
0
h. In paragraph (d) introductory text, in the first sentence, remove
the text ``for a claim'' and add in its place ``for an initial or
supplemental claim''.
The revisions and additions 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;
(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 (see Sec. 3.2501);
(viii) For higher-level reviews, identification of the date of the
decision for which review is sought.
* * * * *
(b) * * * (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'') * * * If VA
does so, however, and the claimant subsequently provides the
information and evidence within one year of the date of the notice in
accordance with the requirements of paragraph (b)(4) of this section,
VA must readjudicate the claim.
* * * * *
(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.
(4) After VA has issued a notice of decision, submission of
information and evidence substantiating a claim must be accomplished
through the proper filing of a review option in accordance with Sec.
3.2500 on a form prescribed by the Secretary. New and relevant evidence
may be submitted in connection with either the filing of a supplemental
claim under Sec. 3.2501 or the filing of a Notice of Disagreement with
the Board under 38 CFR 20.202, on forms prescribed by the Secretary,
and election of a Board docket that permits the filing of new evidence
(see 38 CFR 20.302 and 20.303).
(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

[[Page 170]]

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,
this paragraph (c)(4) applies only if new and material evidence is
presented or secured as prescribed in Sec. 3.156.
(iv) This paragraph (c)(4) applies to a supplemental claim only if
new and relevant evidence under Sec. 3.2501 is presented or secured.
* * * * *

0
14. Amend Sec. 3.160 by revising paragraphs (a), (d), and (e) and
removing paragraph (f).
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)

Sec. 3.161 [Removed and Reserved]

0
15. Remove and reserve Sec. 3.161.

Sec. 3.321 [Amended]

0
16. In Sec. 3.321, remove the word ``reopened'' and add in its place
the word ``supplemental''.

Sec. 3.326 [Amended]

0
17. In Sec. 3.326, remove the word ``reopened'' and add in its place
the word ``supplemental''

0
18. Amend Sec. 3.328 in paragraph (b), in the first sentence, by
removing the text ``at the regional office level'' and add in its place
``before VA'' and by revising 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 each Service from which a benefit is sought, or
his or her designee, determines that the issue under consideration
poses a medical problem of such complexity or controversy as to justify
solicitation of an independent medical opinion; or
(ii) The independent medical opinion is required to fulfill the
instructions 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))
* * * * *

Sec. 3.372 [Amended]

0
19. In Sec. 3.372, remove the word ``reopened'' and add in its place
the word ``supplemental''.

0
20. Amend Sec. 3.400 by revising the introductory text and paragraphs
(h)(1) through (3) and (z)(2) and adding paragraph (z)(3) to 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) * * *

[[Page 171]]

(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.
* * * * *

Sec. 3.401 [Amended]

0
21. In Sec. 3.401, remove the word ``reopened'' and add in its place
the word ``supplemental''.

Sec. 3.402 [Amended]

0
22. In Sec. 3.402, remove the word ``reopened'' and add in its place
the word ``supplemental''.

Sec. 3.404 [Amended]

0
23a. In Sec. 3.404, remove the word ``reopened'' and add in its place
the word ``supplemental''.

Sec. 3.655 [Amended]

0
23b. In Sec. 3.655, remove the word ``reopened'' and add in its place
the word ``supplemental''.

Sec. 3.814 [Amended]

0
24. Amend Sec. 3.814 in paragraph (e) introductory text by removing
the words ``original claim, a claim reopened after final disallowance,
or a claim for increase'' and adding in their place the words ``initial
claim or supplemental claim''.

Sec. 3.815 [Amended]

0
25. Amend Sec. 3.815 in paragraph (i) introductory text by removing
the words ``original claim, a claim reopened after final disallowance,
or a claim for increase,'' and adding in their place the words
``initial claim or supplemental claim''.

Subpart D--Universal Adjudication Rules That Apply to Benefit
Claims Governed by Part 3 of This Title

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

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

0
27. Add Sec. 3.2400 to read as follows:

Sec. 3.2400 Applicability of modernized review system.

(a) Applicability. 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 on a form prescribed by the Secretary 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 3, 19, and 20 applicable to legacy claims
and appeals no longer apply to that claim.

0
28. Add 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
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 (except as otherwise
provided in paragraphs (c), (e), and (f) of this section), 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 an initial claim or a
supplemental claim, the claimant may file a 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 or file a
notice of appeal to the Court of Appeals for Veterans Claims.
(4) Following a decision 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 must submit in writing or
through electronic submission in a manner prescribed by the Secretary
any notice of withdrawal of an issue under the selected review option
to the agency of original

[[Page 172]]

jurisdiction. The withdrawal will be effective the date VA receives it.
A claimant may withdraw an appeal to the Board of Veteran's Appeals as
prescribed in Sec. 20.205.
(e) Changing review options while a review is pending
adjudication--(1) Within one year of prior decision notice. A claimant
may change the review option selected by withdrawing the request as
prescribed in Sec. 3.2500(d) 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.
(2) More than one year after notice of a decision. A claimant may
change the review option selected to a supplemental claim after
expiration of one-year following the date on which VA issued a notice
of decision on an issue by following the procedure specified in
paragraph (e)(1) of this section. Where VA receives the supplemental
claim application after expiration of the one-year period, continuous
pursuit of the claim will be broken and VA will apply the effective
date provisions under paragraph (h)(2) of this section, unless VA
grants an extension of the one-year period for good cause shown under
Sec. 3.109(b) and the supplemental claim application is received
within the extension period allowed.
(f) 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.
(g) 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).
(h) 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 within one year of the issuance of the
decision (or the time period specified in paragraph (f) of this
section, as applicable to simultaneously contested claims), provided
that any appeal to the U.S. Court of Appeals for Veterans Claims must
be accepted as timely by that court.
(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 the date entitlement arose, but
will not be earlier than the date of receipt of the supplemental claim.

0
29. Add Sec. 3.2501 to read as follows:

Sec. 3.2501 Supplemental claims.

Except as otherwise provided, a claimant or his or her authorized
representative, if any, who disagrees with a prior VA decision may file
a supplemental claim (see Sec. 3.1(p)(2)) by submitting in writing or
electronically a complete application (see Sec. 3.160(a)) 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 (see Sec. 3.160(c)) or has become finally adjudicated
(see Sec. 3.160(d)). 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. In determining whether new and relevant evidence is
presented or secured, VA will consider any VA treatment records
reasonably identified by the claimant and any evidence received by VA
after VA issued notice of a decision on the claim and while the
evidentiary record was closed (see 3.103(c)).
(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 part of the
actual record before 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
30. Add 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 agency of original
jurisdiction will expeditiously readjudicate the claim in accordance
with 38 U.S.C. 5109B. The agency of original jurisdiction retains
jurisdiction of the claim. In readjudicating the claim, the agency of
original jurisidction 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
31. Amend Sec. 3.2600 by revising the section heading, adding
introductory text, and removing 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

[[Page 173]]

on or after June 1, 2001, under regulations applicable at the time of
filing.
* * * * *

0
32. Add Sec. 3.2601 to read as follows:

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 such as when
processing is centralized at one office within the agency of original
jurisdiction or when the office that rendered the prior decision does
not have higher-level review personnel available to conduct the review.
(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) of this section.
(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 for correction of the
error and readjudication. Upon receipt, the agency of jurisdiction will
expeditiously readjudicate 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 or introduction of facts not present
at the time of the prior decision or apart of the evidentiary record 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
33. 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
34. Revise Sec. 8.30 to read as follows:

[[Page 174]]

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 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 agency of original jurisdiction
and Board of Veterans' Appeals adjudicators, unless rebutted by
evidence that identifies a clear and unmistakable error in the
favorable finding.
(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 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.
(3) Appeal to Board of Veterans' Appeals. See 38 CFR part 20.
(d) Part 3 provisions. See Sec. 3.2500(b) through (d) of this
chapter 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 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 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
35. 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
36. Amend Sec. 14.629:
0
a. By removing the introductory text;
0
b. In paragraph (b)(5), by removing the words ``General Counsel or his
or her designee'' and adding in their place the words ``Chief Counsel
with subject-matter jurisdiction''; and
0
c. Adding paragraph (d).
The additions reads 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 paragraph (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
37. In Sec. 14.631, in paragraph (c), revise the second sentence to
read as follows:

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
38. In Sec. 14.632, in paragraph (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
39. Amend Sec. 14.633:
0
a. In paragraph (e)(2)(i), by adding the words ``before the Office of
the General Counsel'' after the words ``close the record'' in the last
sentence;

[[Page 175]]

0
b. In paragraph (e)(2)(ii), by adding the words ``before the Office of
the General Counsel'' after the words ``close the record'';
0
c. By revising paragraph (h);
0
d. In paragraph (i), by adding the words ``suspended or'' before the
word ``cancelled''; and
0
e. By adding 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 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
40. Amend Sec. 14.636:
0
a. Revising paragraph (c);
0
b. In paragraph (e)(7), by removing ``and'';
0
c. By revising paragraph (e)(8);
0
d. By adding paragraph (e)(9);
0
e. By revising paragraph (f);
0
f. By removing the references to ``reopened'' in paragraph (h)(3)
introductory text and in the first sentence in paragraph (h)(3)(i) and
adding in their place the word ``readjudicated''; and
0
g. By revising paragraphs (i)(3) and (k).
The revisions and addition 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 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), an initial decision on a claim would include an
initial decision on an initial claim for an increase in rate of
benefit, an initial decision on a request to revise a prior decision
based on clear and unmistakable error (unless fees are permitted at an
earlier point pursuant to paragraph (c)(1)(ii) or paragraph (c)(2)(ii)
of this section), and an initial decision on a supplemental claim that
was presented after the final adjudication of an earlier claim.
However, a supplemental claim will be considered part of the earlier
claim if the claimant has continuously pursued the earlier 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 challenged 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 notice of the challenged decision was issued 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:

[[Page 176]]

(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 paragraph (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.
* * * * *
(e) * * *
(8) Whether, and to what extent, the payment of fees is contingent
upon the results achieved; and
(9) If applicable, the reasons why an agent or attorney was
discharged or withdrew from representation before the date of the
decision awarding benefits.
(f) Presumptions and discharge. (1) Fees which do not exceed 20
percent of any past-due benefits awarded as defined in paragraph (h)(3)
of this section shall be presumed to be reasonable if the agent or
attorney provided representation that continued through the date of the
decision awarding benefits. Fees which exceed 33\1/3\ percent of any
past-due benefits awarded shall be presumed to be unreasonable. These
presumptions may be rebutted through an examination of the factors in
paragraph (e) of this section establishing that there is clear and
convincing evidence that a fee which does not exceed 20 percent of any
past-due benefits awarded is not reasonable or that a fee which exceeds
33\1/3\ percent is reasonable in a specific circumstance.
(2) With regard to a fee agreement in which the amount of the fee
is contingent on the claimant receiving an award of benefits, a
reasonable fee for an agent or attorney who is discharged by the
claimant or withdraws from representation before the date of the
decision awarding benefits is one that fairly and accurately reflects
his or her contribution to and responsibility for the benefits awarded.
The amount of the fee is informed by an examination of the factors in
paragraph (e) of this section.
* * * * *
(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 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 agent or attorney 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) 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 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) of this chapter, shall be
initiated and processed using the procedures in 38 CFR part 20
applicable to appeals under the modernized system.
* * * * *

0
41. Amend Sec. 14.637 by revising paragraphs (d)(3) and (f) to 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 agent or attorney 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) 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 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

[[Page 177]]

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) of this chapter, 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
42. The authority citation for part 19 continues to read as follows:

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

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

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

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

PART 19--[AMENDED]

0
45. The heading for part 19 is revised as set forth above.

Subpart A--Applicability

0
46. The heading for subpart A is revised as set forth above.

PART 20--[AMENDED]

Sec. 20.102 [Removed]

0
47. Remove Sec. 20.102.

Sec. 20.100 [Redesignated as Sec. 20.102]

0
48. Redesignate Sec. 20.100 as Sec. 20.102.

Sec. 20.101 [Redesignated as Sec. 20.104]

0
49-50. Redesignate Sec. 20.101 as Sec. 20.104.

Sec. 20.903 [Redesignated as Sec. 20.908]

0
51. Redesignate Sec. 20.903 as Sec. 20.908.

Sec. 20.904 [Redesignated as Sec. 20.1000]

0
52. Redesignate Sec. 20.904 as Sec. 20.1000.

PARTS 19 AND 20--[AMENDED]

Sec. Sec. 19.1 through 19.5, 19.7 through 19.9, and 19.11 through
19.14 [Transferred to Part 20 and Redesignated as Sec. Sec. 20.100,
20.101, 201.106, 20.103, 20.105, 20.903, 20.905, 20.904, 20.1004,
20.107, 20.108, and 20.109]

0
53. As displayed in the following table, transfer and redesignate the
part 19 sections in the left column to the corresponding part 20
sections in the right column.

------------------------------------------------------------------------
Part 19 sections Part 20 sections
------------------------------------------------------------------------
19.1.............................. 20.100
19.2.............................. 20.101
19.3.............................. 20.106
19.4.............................. 20.103
19.5.............................. 20.105
19.7.............................. 20.903
19.8.............................. 20.905
19.9.............................. 20.904
19.11............................. 20.1004
19.12............................. 20.107
19.13............................. 20.108
19.14............................. 20.109
------------------------------------------------------------------------

PART 19--[AMENDED]

Sec. Sec. 19.50 through 19.53 [Removed]

0
54. Remove Sec. Sec. 19.50 through 19.53.

PARTS 19 AND 20--[AMENDED]

Sec. Sec. 20.200, 20.201, 20.202, 20.204, and 20.300 through
20.304 [Transferred to Part 19 and Redesignated as Sec. Sec. 19.20,
19.21, 19.22, 19.55, 19.51, 19.50, and 19.52 through 19.54]

0
55. As displayed in the following table, transfer and redesignate the
part 20 sections in the left column to the corresponding part 19
sections in the right column.

------------------------------------------------------------------------
Part 20 sections Part 19 sections
------------------------------------------------------------------------
20.200............................ 19.20 (in subpart B)
20.201............................ 19.21 (in subpart B)
20.202............................ 19.22 (in subpart B)
20.204............................ 19.55
20.300............................ 19.51
20.301............................ 19.50
20.302............................ 19.52
20.303............................ 19.53
------------------------------------------------------------------------

PART 19--[AMENDED]

0
56. Add new Sec. Sec. 19.1 and 19.2 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.

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 19, 2019.
(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, on a form prescribed by the Secretary, 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 through 19.5, 19.7 through 19.9, and 19.11 through
19.14 [Reserved]

0
57. Add reserved Sec. Sec. 19.3 through 19.5, 19.7 through 19.9, and
19.11 through 19.14 to subpart A.

[[Page 178]]

Subpart B--Legacy Appeals and Legacy Appeals Processing by Agency
of Original Jurisdiction

0
58. Revise the subpart B heading as set forth above.

0
59. Amend newly redesignated Sec. 19.20:
0
a. By revising the section heading;
0
b. In the introductory text, by removing the text ``Sec. 20.201'' and
adding in its place the text ``Sec. 19.21'', by removing the text
``Sec. 20.302(a)'' and adding in its place the text ``Sec.
19.52(a)'', and by adding the text ``of this chapter'' after the text
``of Sec. 20.501(a)''; and
0
c. Revising the authority citation at the end of the section.
The revisions read as follows:

Sec. 19.20 What constitutes an appeal.

* * * * *

(Authority: 38 U.S.C. 7105 (2016))

0
60. Amend newly redesignated Sec. 19.21:
0
a. By revising the section heading;
0
b. In paragraph (a)(5), by removing the text ``Sec. 20.302(a)'' and
adding in its place the text ``Sec. 19.52(a)'';
0
c. In paragraph (c), by 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)''; and
0
d. Revising the authority citation at the end of the section.
The revisions to read as follows:

Sec. 19.21 Notice of Disagreement.

* * * * *

(Authority: 38 U.S.C. 7105 (2016))

0
61. Amend newly redesignated Sec. 19.22 by revising the section
heading and authority citation at the end of the section to read as
follows:

Sec. 19.22 Substantive Appeal.

* * * * *

(Authority: 38 U.S.C. 7105(d)(3)-(5) (2016))

Sec. 19.23 [Amended]

0
62. Amend Sec. 19.23:
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, and by removing the text ``, Sec. 19.27'';
0
b. 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)'', and by
removing the text ``, Sec. 19.27''.

Sec. 19.24 [Amended]

0
63. 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) introductory text, by removing the text ``Sec.
20.302(a) of this chapter'' and adding in its place the text ``Sec.
19.52(a)''.

0
64. Amend Sec. 19.25 by revising the authority citation at the end of
the section 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
65. Amend Sec. 19.26 by revising the authority citation at the end of
the section 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
66. Remove and reserve Sec. 19.27.

0
67. Amend Sec. 19.28 by revising the authority citation at the end of
the section 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
68. Amend Sec. 19.29 by revising the authority citation at the end of
the section to read as follows:

Sec. 19.29 Statement of the Case.

* * * * *
(Authority: 38 U.S.C. 7105(d)(1) (2016))

0
69. Amend Sec. 19.30 by revising paragraph (b) and the authority
citation at the end of the section 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
70. Amend Sec. 19.31 by adding a second sentence to paragraph (a) and
revising the authority citation at the end of the section to read as
follows: ``

Sec. 19.31 Supplemental statement of the case.

(a) * * * 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. * * *
* * * * *
(Authority: 38 U.S.C. 5902, 5903, 5904; 38 U.S.C. 7105(d) (2016))

0
71. Amend Sec. 19.32 by revising the authority citation at the end of
the section 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
72. Remove and reserve Sec. 19.33.

0
73. Amend Sec. 19.34 by revising the authority citation at the end of
the section 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))

0
74. Amend Sec. 19.35 by removing the second sentence and revising the
authority citation at the end of the section.
The revision reads as follows:

Sec. 19.35 Certification of appeals.

* * * * *
(Authority: 38 U.S.C. 7105 (2016))

0
75. 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''; and
0
b. Revising the authority citation at the end of the section.
The revision reads 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
76. Amend Sec. 19.37 by revising the authority citation at the end of
the section to read as follows:

[[Page 179]]

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
77. 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)''; and
0
b. Revising the authority citation at the end of the section.
The revision reads 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
78. Revise the subpart C heading to read as set forth above.

0
79. Amend newly redesignate Sec. 19.50 by revising the section heading
and the authority citation at the end of the section to read as
follows:

Sec. 19.50 Who can file an appeal.

* * * * *
(Authority: 38 U.S.C. 7105(b)(2) (2016))

0
80. Amend newly redesignate Sec. 19.52 by revising the section heading
and the authority citations to paragraphs (a) through (c) 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))

(Authority: 38 U.S.C. 7105(d)(3) (2016))

0
81. Amend newly redesignated Sec. 19.53 by revising the section
heading and the authority citation at the end of the section 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
82. Amend newly redesignated Sec. 19.54:
0
a. By revising the section heading;
0
b. In the introductory text, by removing the text ``Rule 302(b) (Sec.
20.302(b) of this part)'' and adding in its place the text ``Sec.
19.52(b)''; and
0
c. Revising the authority citation at the end of the section.
The revisions 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
83. Amend newly redesignated Sec. 19.55:
0
a. By revising the section heading;
0
b. By revising the paragraph (b)(1) subject heading to read
``Content'', by removing the first sentence, and by removing the word
``They'' from the second sentence and adding in its place the words
``Appeal withdrawals'';
0
c. In paragraph (b)(2), by revising the last sentence;
0
d. In paragraph (b)(3), by removing the word ``part'' and adding in its
place the word ``chapter'' in the second sentence; and
0
e. Revising the authority citation at the end of the section.
The revisions read as follows:

Sec. 19.55 Withdrawal of Appeal.

* * * * *
(b) * * *
(2) * * * Thereafter, file the withdrawal at the Board.
* * * * *
(Authority 38 U.S.C. 7105(b), (d) (2016))

Subpart D--[Removed and Reserved]

0
84. Remove and reserve subpart D, consisting of Sec. Sec. 19.75
through 19.99.

Subpart E--Simultaneously Contested Claims

0
85. Amend Sec. 19.100 by revising the authority citation at the end of
the section 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
86. Amend Sec. 19.101 by revising the authority citation at the end of
the section 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
88. Amend Sec. 19.102 by revising the authority citation at the end of
the section 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))

Sec. Sec. 19.103-19.199 [Added and Reserved]

0
80. Add reserved Sec. Sec. 19.103 through 19.199 to subpart E.

Appendix A to Part 19 [Removed]

0
90. Remove appendix A to part 19.

PART 20--[AMENDED]

Subpart A--General

Sec. 20.1 [Amended]

0
91. Amend Sec. 20.1 in paragraph (a) by adding the text ``(Board)''
after the text ``Board of Veterans' Appeals''.

0
92. 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);
0
d. In newly redesignated paragraph (h), revising the subject heading
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;
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.
* * * * *

[[Page 180]]

(h) Hearing on appeal or Board hearing * * *
(i) * * * For example, a request to correct a hearing transcript
(see Rule 714 (Sec. 20.714)) is raised by motion. * * *
* * * * *

0
93. Add 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

0
94. Amend newly redesignated Sec. 20.100 by revising the section
heading to read as follows:

Sec. 20.100 Rule 100. Establishment of the Board.

* * * * *

0
95. In newly redesignated Sec. 20.102, revise the section heading and
paragraph (c) 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
96. Amend newly redesignated Sec. 20.104 by:
0
a. Removing the third sentence of paragraph (a);
0
b. Revising paragraphs (c) and (d);
0
c. Removing paragraph (e); and
0
d. Revising the authority citation at the end of the section.
The revisions read as follows:

Sec. 20.104 Rule 104. Jurisdiction of the Board.

* * * * *
(c) Authority to determine jurisdiction. The Board shall decide all
questions pertaining to its jurisdictional authority to review a
particular case. When the Board, on its own initiative, raises a
question as to a potential jurisdictional defect, all parties to the
proceeding and their representative(s), if any, will be given notice of
the potential jurisdictional defect(s) and granted a period of 60 days
following the date on which such notice is mailed to present written
argument and additional evidence relevant to jurisdiction and to
request a hearing to present oral argument on the jurisdictional
question(s). The date of mailing of the notice will be presumed to be
the same as the date stamped on the letter of notification. The Board
may dismiss any case over which it determines it does not have
jurisdiction.
(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. Jurisdictional questions which a claimant may
appeal, include, but are not limited to, questions relating to the
timely filing and adequacy of the Notice of Disagreement and the
Substantive Appeal.

(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)

0
97. Revise subpart C to read as follows:

Subpart C--Commencement and Filing of Appeals

Sec.
20.200 Rule 200. Notification by agency of original jurisdiction of
right to appeal.
20.201 Rule 201. What constitutes an appeal.
20.202 Rule 202. Notice of Disagreement.
20.203 Rule 203. Place and time of filing of Notice of Disagreement.
20.204 Rule 204. Who can file a Notice of Disagreement.
20.205 Rule 205. Withdrawal of appeal.
20.206-20.299 [Reserved]

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 decision and issue or issues
therein with which the claimant disagrees. The term issue means an
adjudication of a specific entitlement as described in 38 CFR 3.151(c).
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 decision and
issue or issues therein with which the claimant disagrees.

[[Page 181]]

(b) Review options. 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 made by completing a new
Notice of Disagreement on a form prescribed by the Secretary, 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 60 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) Standard form required. 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).
(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 2900-0674]

Sec. 20.203 Rule 203. Place and time of filing of 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 decision by the agency of original jurisdiction within one year
from the date that the agency mails the notice of the decision. The
date of mailing the letter of notification of the decision will be
presumed to be the same as the date of that letter for purposes of
determining whether an appeal has been timely filed.
(c) Extension of time of filing. An extension of the period for
filing a Notice of Disagreement or a request to modify a Notice of
Disagreement may be granted for good cause. A request for such an
extension must be in writing and must be filed with the Board. Whether
good cause for an extension has been established will be determined by
the Board.

(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

[[Page 182]]

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
98. Revise the subpart D heading to read as set forth above.

Sec. 20.305 [Redesignated as Sec. 20.110]

0
99. Redesignate Sec. 20.305 as Sec. 20.110.

0
100. Amend newly redesignated Sec. 20.110 by revising the section
heading to read as follows:

Sec. 20.110 Rule 110. Computation of time limit for filing.

* * * * *

Sec. 20.306 [Redesignated as Sec. 20.111]

0
101. Redesignate Sec. 20.306 as Sec. 20.111.
0
102. Amend newly redesignated 20.111 by:
0
a. Revising the section heading; and
0
b. Removing the words ``Rule 305 (Sec. 20.305)'' and adding in their
place the words ``Rule 110 (Sec. 20.110)''.
The revision reads as follows:

Sec. 20.111 Rule 111. Legal holidays.

* * * * *

0
103. Add new Sec. Sec. 20.300 through 20.303 to read as follows:
Sec.
* * * * *
20.300 Rule 300. General.
20.301 Rule 301. Appeals with no request for a Board hearing and no
additional evidence.
20.302 Rule 302. Appeals with a request for a Board hearing.
20.303 Rule 303. Appeals with no request for a Board hearing, but
with a request for submission of additional evidence.
* * * * *

Sec. 20.300 Rule 300. General.

(a) 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.
(b) Waiver of appellant's right to submit evidence. For appeals
described in 20.302 and 20.303, an appellant has a right to submit
evidence during a period of 90 days, unless this right is waived by the
appellant or representative at any time prior to the expiration of the
applicable 90-day period. Such a waiver must be in writing or, if a
hearing on appeal is conducted pursuant to 20.302, the waiver must be
formally and clearly entered on the record orally at the time of the
hearing.

(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 through 20.306 [Added and Reserved]

0
104. Add reserved Sec. Sec. 20.304 through 20.306.

0
105. Revise subpart E to read as follows:

Subpart E--Appeal in Simultaneously Contested Claims

Sec.
20.400 Rule 400. Notification of the right to appeal in a
simultaneously contested claim.
20.401 Rule 401. Who can file an appeal in simultaneously contested
claims.
20.402 Rule 402. Time limits for filing Notice of Disagreement in
simultaneously contested claims.
20.403 Rule 403. Notice to contesting parties on receipt of Notice
of Disagreement in simultaneously contested claims.
20.404 Rule 404. Time limit for response to appeal by another
contesting party in a simultaneously contested claim.
20.405 Rule 405. Docketing of simultaneously contested claims at the
Board.
20.406 Rule 406. Notices sent to last addresses of record in
simultaneously contested claims.

[[Page 183]]

20.407 Rule 407. Favorable Findings are not binding in Contested
Claims.
20.408-20.499 [Reserved]

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 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
agency of original jurisdiction and Board of Veterans' Appeals
adjudicators during the pendency of the contested appeal.

(Authority: 38 U.S.C. 7105A(b)(2))

Sec. Sec. 20.404-20.499 [Reserved]

Subpart F--Legacy Appeal in Simultaneously Contested Claims

0
106. Revise the subpart F heading to read as set forth above.

Sec. Sec. 20.500 through 20.504 [Redesignated as Sec. Sec. 20.501
through 20.505]

0
107. Redesignate Sec. Sec. 20.500 through 20.504 as Sec. Sec. 20.501
through 20.505.

0
108. 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
109. Amend newly redesignated Sec. 20.501 by:
0
a. Revising the section heading;
0
b. Removing the words ``Rule 501 (Sec. 20.501 of this part)'' and
adding in their place the words ``Rule 502 (Sec. 20.502)''; and
0
c. Revising the authority citation at the end of the section.
The revisions read as follows:

Sec. 20.501 Rule 501. Who can file an appeal in simultaneously
contested claims.

* * * * *

(Authority: 38 U.S.C. 7105(b)(2), 7105A (2016))

0
110. Amend newly redesignated Sec. 20.502 by revising the section
heading and the authority citations following paragraphs (a) through
(c) to read as follows:

Sec. 20.502 Rule 502. Time limits for filing Notice of Disagreement,
Substantive Appeal, and response to Supplemental Statement of the Case
in simultaneously contested claims.

(a) * * *

(Authority: 38 U.S.C. 7105A(a) (2016))

(b) * * *

(Authority: 38 U.S.C. 7105A(b) (2016))

(Authority: 38 U.S.C. 38 U.S.C. 7105(d)(3), 7105A(b) (2016))

0
111. Amend newly redesignated Sec. 20.503 by revising the section
heading and the authority citation at the end of the section 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
112. Amend newly redesignated Sec. 20.504, and amend by revising the
section heading and the authority citation at the end of the section 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
113. Amend newly redesignated Sec. 20.505, and amend by revising the
section heading and the authority citation at the end of the section to
read as follows:

[[Page 184]]

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
114. Revise the subpart G heading to read as set forth above.

Sec. 20.600 [Redesignated as Sec. 20.5]

0
115. Redesignate Sec. 20.600 as Sec. 20.5.

0
116. Amend newly redesignated Sec. 20.5 by revising the section
heading to read as follows:

Sec. 20.5 Rule 5. Right to representation.

* * * * *

Sec. 20.608 [Redesignated as Sec. 20.6]

0
117. Redesignate Sec. 20.608 as Sec. 20.6 and revise it to read as
follows:.

Sec. 20.6 Rule 6. Withdrawal of services by a representative.

(a)(1) Applicability. The restrictions on a representative's right
to withdraw contained in this paragraph apply only to those cases in
which the representative has previously agreed to act as representative
in an appeal. In addition to express agreement, orally or in writing,
such agreement shall be presumed if the representative makes an
appearance in the case by acting on an appellant's behalf before the
Board in any way after the appellant has designated the representative
as such as provided in ``Sec. 14.630 or Sec. 14.631 of this chapter.
The preceding sentence notwithstanding, an appearance in an appeal
solely to notify the Board that a designation of representation has not
been accepted will not be presumed to constitute such consent.
(2) Procedures. Except as otherwise provided in paragraph (b) of
this section, after an appeal to the Board of Veterans' Appeals has
been filed, a representative may not withdraw services as
representative in the appeal unless good cause is shown on motion. Good
cause for such purposes is the extended illness or incapacitation of an
agent admitted to practice before the Department of Veterans Affairs,
an attorney-at-law, or other individual representative; failure of the
appellant to cooperate with proper preparation and presentation of the
appeal; or other factors which make the continuation of representation
impossible, impractical, or unethical. 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), the applicable Department of Veterans Affairs
file number, and the reason why withdrawal should be permitted, and a
signed statement certifying that a copy of the motion was sent by
first-class mail, postage prepaid, to the appellant, setting forth the
address to which the copy was mailed. Such motions should not contain
information which would violate privileged communications or which
would otherwise be unethical to reveal. Such motions must be filed at
the following address: Board of Veterans' Appeals, P.O. Box 27063,
Washington, DC 20038. The appellant may file a response to the motion
with the Board at the same address not later than 30 days following
receipt of the copy of the motion and must include a signed statement
certifying that a copy of the response was sent by first-class mail,
postage prepaid, to the representative, setting forth the address to
which the copy was mailed.
(b) Withdrawal of services prior to certification of a legacy
appeal. A representative may withdraw services as representative in a
legacy appeal at any time prior to certification of the appeal to the
Board of Veterans' Appeals by the agency of original jurisdiction by
complying with the requirements of Sec. 14.631 of this chapter.

(Approved by the Office of Management and Budget under control
number 2900-0085)

(Authority: 38 U.S.C. 5901-5904, 7105(a))

Subpart G--[Amended]

0
118. Remove the note to subpart G.

0
119. 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.

Sec. 20.608 [Reserved]

0
120. Add reserved Sec. 20.606.

Subpart H--Hearings on Appeal

0
121. Amend Sec. 20.700 by revising paragraphs (a) and (b) and removing
paragraphs (d) and (e).
The revisions 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. An appellant is
limited to one Board hearing following the filing of a Notice of
Disagreement with a decision of the agency of original jurisdiction.
Requests for additional Board hearings may be granted for good cause
shown.
(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 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.
* * * * *

Sec. 20.704 [Redesignated as Sec. 20.603]

0
122. Redesignate Sec. 20.704 as Sec. 20.603 and revise it 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

[[Page 185]]

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; Sec. 102, Pub. 114-315; 130 Stat. 1536)

[Approved by the Office of Management and Budget under control
number 2900-0085]

Sec. 20.702 [Redesignated as Sec. 20.704]

0
123. Redesignate Sec. 20.702 as Sec. 20.704.

0
124. Amend newly redesignated Sec. 20.704 by revising the section
heading and paragraphs (a) and (c) through (e) and by adding paragraph
(f) to 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).
* * * * *
(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

[[Page 186]]

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
125. 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)

Sec. 20.703 [Redesignated as Sec. 20.602]

0
126. Redesignate Sec. 20.703 as Sec. 20.602 and revise it 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 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
127. 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)

Sec. 20.705 [Redesignated as Sec. 20.601]

0
128. Redesignate Sec. 20.705 as Sec. 20.601 and revise it 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

[[Page 187]]

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)

Sec. 20.706 [Redesignated as Sec. 20.705]

0
129. Redesignate Sec. 20.706 as Sec. 20.705 and revise it 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) Determining whether documentary evidence, testimony, and/or
argument is relevant or material to the issue or issues being
considered and not 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
130. 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)

Sec. 20.707 [Redesignated as Sec. 20.604]

0
131. Redesignate Sec. 20.707 as Sec. 20.604.

0
132. Amend newly redesignated Sec. 20.604 and amend by:
0
a. Revising the section heading;
0
c. Removing the words ``Sec. 19.3 of this part'' and add in their
place the words ``Rule 106 (Sec. 20.106)'';
0
d. Removing 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 end of the setion.
The revision and addition read as follows:

Sec. 20.604 Rule 604. Designation of Member or Members to conduct the
hearing in a legacy appeal.

* * * * *

(Authority: 38 U.S.C. 7102; 38 U.S.C. 7101 (2016))

Sec. 20.708 [Redesignated as Sec. 20.707]

0
133. Redesignate Sec. 20.708 as Sec. 20.707.

0
134. Amend newly redesignated Sec. 20.707 and amend by:
0
a. Revisng the section heading;
0
b. Removing the second sentence; and
0
c. Adding an authority citation to the end of the section.
The revision and addtions read as follows:

Sec. 20.707 Rule 707. Prehearing conference.

* * * * *
(Authority: 38 U.S.C. 7102, 7107)

Sec. 20.709 [Redesignated as Sec. 20.605]

0
135. Redesignate Sec. 20.709 as Sec. 20.605.

0
136. Amend newly redesignated Sec. 20.605 by revising the section
heading and adding an authority citation to the end of the section 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))

Sec. 20.710 [Redesignated as Sec. 20.708]

0
137. Redesignate Sec. 20.710 as Sec. 20.708.

0
138. Amend newly redesignated 20.708 by revising the section heading to
read as follows:

Sec. 20.708 Rule 708. Witness at hearings.

* * * * *

Sec. 20.711 [Redesignated as Sec. 20.709]

0
139. Redesignate Sec. 20.711 as Sec. 20.709.

0
140. Amend newly redesignated Sec. 20.709:
0
a. By revising the section heading; and
0
b. In paragraph (c), by removing the words ``Director, Office of
Management, Planning and Analysis (014),''.
The revision reads as follows:

Sec. 20.709 Rule 709, Subpoenas.

* * * * *

Sec. 20.712 [Redesignated as Sec. 20.710]

0
141. Redesignate Sec. 20.712 as Sec. 20.710.

0
142. Amend newly redesignated 20.710 by revising the section heading to
read as follows:

Sec. 20.710 Rule 710. Expenses of appellants, representatives, and
witnesses incident to hearings not reimbursable by the Government.

* * * * *

Sec. 20.713 [Redesignated as Sec. 20.711]

0
143. Redesignate Sec. 20.713 as Sec. 20.711.

0
144. Amend newly redesignated Sec. 20.711 by revising paragraph (b) to
read as follows:

Sec. 20.711 Rule 711. Hearings in simultaneously contested claims.

* * * * *
(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

[[Page 188]]

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) (Sec. 20.704(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)

Sec. 20.714 [Redesignated as Sec. 20.712]

0
145. Redesignate Sec. 20.714 as Sec. 20.712 and revise it 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.

Sec. 20.715 [Redesignated as Sec. 20.713]

0
146. Redesignate Sec. 20.715 as Sec. 20.713.

0
147. Amend newly redesignated Sec. 20.713 by:
0
a. Revising the section heading;
0
b. Revising the fourth sentence
0
c. Removing the fifth sentence; and
0
d. Revising the authority citation at the end of the section.
The revisions read as follows:

Sec. 20.713 Rule 713. Recording of hearing by appellant or
representative.

* * * In all such situations, advance arrangements must be made
with the Board of Veterans' Appeals, P.O. Box 27063, Washington, DC
20038.

(Authority: 38 U.S.C. 7102, 7107)

Sec. 20.716 [Redesignated as Sec. 20.714]

0
148. Redesignate Sec. 20.716 as Sec. 20.714 and revise it 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)

Sec. 20.717 [Redesignated as Sec. 20.715]

0
149. Redesignate Sec. 20.717 as Sec. 20.715 and revise it to read as
follows:

Sec. 20.715 Rule 715. Loss of hearing recordings or transcripts--
request 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
150. Add reserved Sec. Sec. 20.716 and 20.717.

Sec. 20.901 [Redesignated as Sec. 20.906]

0
151. Redesignate Sec. 20.901 as Sec. 20.906.

Sec. 20.902 [Redesignated as Sec. 20.907]

0
152. Redesignate Sec. 20.902 as Sec. 20.907.

Sec. 20.800 [Redesignated as Sec. 20.901]

0
153. Redesignate Sec. 20.800 as Sec. 20.901.153.

0
154. Revise the subpart I heading and add new Sec. 20.800 and
Sec. Sec. 20.801 through 20.804 to read as follows:

Subpart I--Appeals Processing

20.800 Rule 800. Order of consideration of appeals.
20.801 Rule 801. The decision.
20.802 Rule 802. Remand for correction of error.
20.803 Rule 803. Content of Board decision, remand, or order in
simultaneously contested claims.
20.804 Rule 804. Opinions of the General Counsel.
* * * * *

[[Page 189]]

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. 302,103-446; 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 agency of original jurisdiction and Board of Veterans' Appeals
adjudicators, unless rebutted by evidence that identifies a clear and
unmistakable error in the favorable finding. 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) Panel decision. A decision by a panel of Members will be by a
majority vote of the panel Members.

(Authority: 38 U.S.C. 7104(d))

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

[[Page 190]]

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
155. Revise the subpart J heading to read as set forth above.

Sec. 20.900 [Redesignated as Sec. 20.902]

0
156. Redesignate Sec. 20.900 as Sec. 20.902.

0
157. Add new 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. 2,115-55; 131 Stat. 1105)

0
158. Amend newly redesignated Sec. 20.901 by revising the section
heading and the authority citation at the end of the section 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
159. Amend newly redesignated Sec. 20.902:

0
a. By revising the section heading;
0
b. By revising the third sentence in paragraph (c)(1);
0
c. In paragraph (c)(2), by removing the words ``Director, Office of
Management, Planning and Analysis (014),''; and
0
d. Revising the authority citations at the end of paragraph (d) and at
the end of the section.
The revisions 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))

Sec. 20.1002 [Removed]

0
160. Remove Sec. 20.1002.

Sec. Sec. 20.1000 and 20.1001 [Redesignated as Sec. Sec. 20.1001
and 20.1002]

0
161. Redesignate Sec. Sec. 20.1000 and 20.1001 as Sec. Sec. 20.1001
and 20.1002, respectively.

0
162. Amend newly redesignated Sec. 20.906:
0
a. By revising the section heading; and
0
b. In paragraph (b), by removing the words ``Armed Forces Institute of
Pathology'' and adding in its place the words ``Joint Pathology
Center'' both places it appears.
The revision reads as follows:

Sec. 20.906 Rule 906. Medical opinions and opinions of the General
Counsel.

* * * * *

0
163. Amend newly redesignate Sec. 20.907 by:
0
a. Revising the section heading; and
0
b. Removing the words ``Rule 901 (Sec. 20.901 of this part)'' and
adding in its place the words ``Rule 906 (Sec. 20.906)''.
The revision reads as follows:

Sec. 20.907 Rule 907. Filing of requests for the procurement of
opinions.

* * * * *

0
164. Amend newly redesignated Sec. 20.908:
0
a. By revising the section heading;
0
b. In paragraph (a), by 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)(1), by 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))''.
The revision reads as follows:

[[Page 191]]

Sec. 20.908 Rule 908. Notification of evidence to be considered by
the Board and opportunity for response.

* * * * *

Subpart K--Vacatur and Reconsideration

0
165. Revise the subpart K heading to read as set forth above.

0
166. Amend newly redesignated Sec. 20.1000 by revising the section
heading and paragraphs (a)(2) and (3) 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 app7al, 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.
* * * * *

0
167. Amend newly redesignated Sec. 20.1001 and amend by:
0
a. Revising the section; and
0
b. Removing the words ``and material'' from paragraph (b).
The revision reads as follows:

Sec. 20.1001 Rule 1001. When reconsideration is accorded.

* * * * *

0
168. Amend newly redesignated Sec. 20.1002 and amend by:
0
a. Revising the section heading;
0
b. Removing the words ``Director, Office of Management, Planning and
Analysis (014),'' in paragraph (b); and
0
c. Removing the words ``Sec. 19.11 of this chapter'' and adding in its
place the words ``Rule 1004 (Sec. 20.1004)'' in paragraph (c)(2).
The revision reads as follows:

Sec. 20.1002 Rule 1002. Filing and disposition of motion for
reconsideration.

* * * * *

0
169. Amend Sec. 20.1003 by revising the first sentence and removing
the fifth sentence.
The revision reads 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
170. Revise Sec. 20.1103 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
171. Revise Sec. 20.1105 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

Sec. 20.1201 [Amended]

0
172. 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
173. Amend Sec. 20.1301:
0
a. By revising paragraph (a);
0
b. By redesignating paragraph (b) as paragraph (c);
0
c. By adding new paragraph (b);
0
d. By removing the text ``the internet at http://www.index.va.gov/search/va/bva.html'' and adding in its place the text ``the Board's
website'' in newly redesignated paragraph (c)(1); and
0
c. In newly redesignated paragraph (c)(2) by:
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 revisions and additions 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) of this section is
also applicable to Statements of the Case and supplemental Statements
of the Case.

(Authority: 38 U.S.C. 7105(d)(2))

* * * * *

Sec. 20.1302 [Amended]

0
174. Amend Sec. 20.1302 in paragraph (a) 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.

Sec. 20.1304 [Redesignated as Sec. 20.1305]

0
175. Redesignate Sec. 20.1304 as Sec. 20.1305.

0
176. 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

[[Page 192]]

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)

0
177. Amend newly redesignated Sec. 20.1305:
0
a. By revising the section heading and paragraph (a);
0
b. In paragraph (b)(1) introductory text, by removing the words
``Director, Office of Management, Planning and Analysis (014),'';
0
c. In paragraph (b)(2), by removing the words ``Sec. 20.903 of this
chapter'' and adding in their place ``Sec. 20.908''; and
0
d. In paragraph (c), by removing the words ``Sec. 20.903'' and adding
in their place the words ``Sec. 20.908'';
0
e. Revising the authority citation at the end of the section.
The revisions read as follows:

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))

Sec. Sec. 20.1306-20.1399 [Reserved]

0
178. Add reserved Sec. Sec. 20.1306 through 20.1399.

Subpart O--Revision of Decisions on Grounds of Clear and
Unmistakable Error

Sec. 20.1401 [Amended]

0
179. 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
180. 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) * * *
(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
181. Amend Sec. 20.1404 in paragraph (c) by removing ``Director,
Office of Management, Planning and Analysis (014),''.

0
182. Amend Sec. 20.1405:
0
a. In paragraph (a)(1), by removing the words ``Sec. 19.3 of this
title'' and adding in their place ``Sec. 20.106'';
0
b. In paragraph (a)(2), by removing the words ``Rule 900(c) (Sec.
20.900(c) of this part)'' and adding in their 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), by removing the words ``Director, Office of
Management, Planning and Analysis (014),'';
0
d. By removing paragraph (d);
0
e. By redesignating paragraph (e) as paragraph (d);
0
f. By redesignating paragraph (f) as paragraph (e);
0
g. By redesignating paragraph (g) as paragraph (f); and
0
h. By revising the first sentence of the newly redesignated paragraph
(f).
The revision reads as follows:

Sec. 20.1405 Rule 1405. Disposition.

* * * * *

[[Page 193]]

(f) * * * The decision of the Board on a motion under this subpart
will be in writing. * * *
* * * * *

Sec. 20.1408 [Amended]

0
183. 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 first sentence.

Sec. 20.1409 [Amended]

0
184. Amend Sec. 20.1409 in paragraph (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)''.

0
185. Amend Sec. 20.1411 by revising paragraphs (b) and (d) to read as
follows:

Sec. 20.1411 Rule 1411. Relationship to other statutes.

* * * * *
(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).
* * * * *
(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).
* * * * *

Sec. Sec. 20.1412--20.1499 [Reserved]

0
186. Add reserved Sec. Sec. 20.1412 through 20.1499.

Subpart P--[Removed and Reserved]

0
187. Remove and reserve subpart P, consisting of Sec. Sec. 20.1500-
20.1510.

Appendix A to Part 20 [Removed]

0
188. Remove appendix A to part 20.

PART 21--VOCATIONAL REHABILITATION AND EMPLOYMENT

Subpart A--Vocational Rehabilitation and Employment Under 38 U.S.C.
Chapter 31

0
189. 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.

Sec. 21.59 [Removed]

0
190. Remove Sec. 21.59.

Sec. 21.98 [Removed]

0
191. Remove Sec. 21.98.

Sec. 21.184 [Amended]

0
192. Amend Sec. 21.184 by removing the CROSS REFERENCE paragraph from
the end of the section.

Sec. 21.188 [Amended]

0
193. Amend Sec. 21.188 in paragraph (b) by removing the words ``Sec.
21.96, or Sec. 21.98'' and adding in their place the words ``or Sec.
21.96''.

Sec. 21.190 [Amended]

0
194. Amend Sec. 21.190 in paragraph (b) by removing the words ``Sec.
21.96, or Sec. 21.98'' and adding in their place the words ``or Sec.
21.96''.

Sec. 21.192 [Amended]

0
195. Amend Sec. 21.192 in paragraph (b) by removing the words ``Sec.
21.96, or Sec. 21.98'' and adding in their place the words ``or Sec.
21.96''.

Sec. 21.194 [Amended]

0
196. Amend Sec. 21.194 in paragraph (b) by removing the words ``Sec.
21.94 and 21.98'' and adding in their place the words ``and Sec.
21.94''.

Sec. 21.282 [Amended]

0
197. Amend Sec. 21.282 in paragraph (c)(4) by removing ``21.98'' and
adding in its place ``21.96''.

Sec. 21.412 [Amended]

0
198. Amend Sec. 21.412 in paragraph (a)(2) by removing the words
``(See Sec. Sec. 19.153, 19.154, and 19.155''.

0
199. Amend Sec. 21.414:
0
a. In paragraph (e), by removing the period following ``Sec.
3.105(e)'' and adding in its place a semicolon;
0
b. By adding paragraph (f); and
0
c. Revising the authority citation at the end of the section.
The addition and revision 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
200. Add Sec. 21.416 before the undesignated center heading
``Informing the Veteran'' 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 claimant
or his/her representative on or after the effective date of the
modernized review system as provided in Sec. 19.2(a) of this chapter,
or where a 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
claimant may elect one of the following administrative review options:
(1) Supplemental Claim. 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.
(2) Appeal to the Board of Veterans' Appeals. See 38 CFR part 20.
(3) Higher-level Review. The nature of this review will accord with
Sec. 3.2601.
(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
201. Amend Sec. 21.420 by revising paragraphs (b) and (d), adding
paragraph (e), and revising the authority citation at the end of the
section to read as follows:

Sec. 21.420 Informing the veteran.

* * * * *
(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

[[Page 194]]

subsequent agency of original jurisdiction and Board of Veterans'
Appeals adjudicators, unless rebutted by evidence that identifies a
clear and unmistakable error in the favorable finding.

(Authority: 38 U.S.C. 3102, 5104, 5104A, and 7105)

Sec. 21.430 [Amended]

0
202. Amend Sec. 21.430 in paragraph (b) by removing ``21.98'' and
adding in its place ``21.96''.

Subpart B--Claims and Applications for Educational Assistance

0
203. 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
204. Amend Sec. 21.1033 in paragraph (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
205. 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
206. 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 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
207. Amend Sec. 21.6058(b) by removing ``21.59'' and adding in its
place ``21.416''.

Sec. 21.6080 [Amended]

0
208. Amend Sec. 21.6080:
0
a. In paragraph (a), by removing the text ``21.96 and 21.98'' and
adding its place the text ``and 21.96''.
0
b. In paragraph (d)(3), by removing ``21.98'' and adding in its place
``21.416''.

[FR Doc. 2018-28350 Filed 1-17-19; 8:45 am]
BILLING CODE 8320-01-P