2011-7191

IN THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT _____________________________________

NATIONAL ORGANIZATION OF VETERANS ADVOCATES, INC.,

Petitioner,

v.

SECRETARY OF VETERANS AFFAIRS,

Respondent. _____________________________________

On Petition for Review Pursuant to 38 U.S.C. § 502.

_____________________________________

OPENING BRIEF AND APPENDIX FOR NATIONAL ORGANIZATION OF VETERANS ADVOCATES, INC.

______________________________________ Richard Paul Cohen NATIONAL ORGANIZATION OF

VETERANS’ ADVOCATES 1425 K Street, NW Suite 350 Washington, DC 20005 (202) 587-5708

Roman Martinez Counsel of Record

LATHAM & WATKINS LLP 555 Eleventh Street, NW Suite 1000 Washington, DC 20004 (202) 637-2200

Counsel for Petitioner

National Organization of Veterans’ Advocates, Inc.

December 22, 2011

ii

TABLE OF CONTENTS Page

CERTIFICATE OF INTEREST.................................................................................i

TABLE OF AUTHORITIES ................................................................................... iii

STATEMENT OF RELATED CASES.....................................................................1

JURISDICTIONAL STATEMENT ..........................................................................1

STATEMENT OF THE ISSUES...............................................................................2

STATEMENT OF THE CASE..................................................................................3

STATEMENT OF FACTS ........................................................................................7

A. Overview Of The Veterans Disability Claims System .........................8

B. The Longstanding Application Of § 3.103 To Board Hearings..........13

C. The New Rule Depriving Veterans Of § 3.103 Rights .......................25

SUMMARY OF ARGUMENT ...............................................................................28

ARGUMENT ...........................................................................................................30

I. THE VA’S NEW RULE WAS NOT SUBJECTED TO NOTICE AND COMMENT AND IS INVALID UNDER THE APA ........................30

A. Substantive Rules Must Satisfy The APA’s Notice-And-Comment Requirements ......................................................................31

B. The VA’s New Rule Is Substantive ....................................................33

1. Purple Heart Establishes That Rules Curtailing § 3.103’s Due Process Rights Are Substantive ........................................33

2. The New Rule Changes Existing Law And Policy And Deprives Veterans Of Individual Rights...................................36

II. THE VA’S NEW RULE IS ARBITRARY, CAPRICIOUS, AND INVALID UNDER THE APA......................................................................44

A. The APA Requires Reasoned Decisionmaking...................................44

B. The VA Distorted § 3.103’s History, Ignored The New Rule’s Reversal Of Policy, And Disregarded Its Impact On Veterans ..........46

CONCLUSION........................................................................................................51

iii

TABLE OF AUTHORITIES Page(s)

Acree v. Shinseki, No. 09-3493, 2011 U.S. App. Vet. Claims LEXIS 1093 (May 19, 2011) ..............................................................................................42

Allentown Mack Sales & Serv., Inc. v. NLRB,

522 U.S. 359 (1998).................................................................................45, 50 Animal Legal Defense Fund v. Quigg,

932 F.2d 920 (Fed. Cir. 1991) ...........................................................32, 35, 40 Bivings v. U.S. Department of Agriculture,

225 F.3d 1331 (Fed Cir. 2000) ......................................................................50 Bryant v. Shinseki,

23 Vet. App. 488 (2010)........................................................23, 27, 28, 38, 49 Chrysler Corp. v. Brown,

441 U.S. 281 (1979).......................................................................6, 31, 32, 39 Coalition for Common Sense in Government Procurement v.

Secretary of Veterans Affairs, 464 F.3d 1306 (Fed. Cir. 2006) ............................................................. passim

Cobb v. Shinseki,

No. 09-1676, 2010 U.S. App. Vet. Claims LEXIS 2335 (Dec. 9, 2010) ................................................................................................42

Comer v. Peake,

552 F.3d 1362 (Fed. Cir. 2009) .......................................................4, 9, 41, 43 Costantino v. West,

12 Vet. App. 517 (1999)................................................................................23 Counts v. Brown,

6 Vet. App. 473 (1994) ..................................................................................23

iv

Page(s) Craig v. Shinseki,

No. 08-2636, 2010 U.S. App. Vet. Claims LEXIS 2094 (Nov. 15, 2010)........................................................................................24, 42

Crouch v. Shinseki,

No. 10-1865, 2011 U.S. App. Vet. Claims LEXIS 1638 (Aug. 24, 2011)..............................................................................................42

Cushman v. Shinseki,

576 F.3d 1290 (Fed. Cir. 2009) .....................................................................40 Dickey v. Shinseki,

No. 10-0640, 2011 U.S. App. Vet. Claims LEXIS 1240 (June 10, 2011) ..............................................................................................42

Disabled American Veterans v. Gober,

234 F.3d 682 (Fed. Cir. 2000) .........................................................................7 Douglas v. Derwinski,

2 Vet. App. 103 (1992), aff’d in part and vacated in part, 2 Vet. App. 435 (1992) ............................................................................16, 18

Douglas v. Derwinski,

2 Vet. App. 435 (1992) ............................................................................16, 18 FCC v. Fox Television Stations, Inc.,

129 S. Ct. 1800 (2009).......................................................................29, 45, 50 First National Bank of Chicago v. Standard Bank & Trust,

172 F.3d 472 (7th Cir. 1999) .........................................................................39 Frazer v. Shinseki,

No. 09-4185, 2011 U.S. App. Vet. Claims LEXIS 1186 (May 31, 2011) ..............................................................................................42

Guerra v. Shinseki,

642 F.3d 1046 (Fed. Cir. 2011) .........................................................31, 32, 37

v

Page(s) Hamlet v. United States,

63 F.3d 1097 (Fed. Cir. 1995) .......................................................................39 Henderson v. Shinseki,

131 S. Ct. 1197 (2011).........................................................................8, 10, 43 Henderson v. Shinseki,

589 F.3d 1201 (Fed. Cir. 2009), rev’d on other grounds, 131 S. Ct. 1197 (2011)...................................................................................11

Herrington v. Shinseki,

No. 09-0620, 2011 U.S. App. Vet. Claims LEXIS 708 (Mar. 31, 2011) ..............................................................................................42

Hicks v. Shinseki,

No. 08-2872, 2010 U.S. App. Vet. Claims LEXIS 1890 (Oct. 18, 2010)...............................................................................................42

Hodge v. West,

155 F.3d 1356 (Fed. Cir. 1998) .................................................................4, 43 Homemakers North Shore, Inc. v. Bowen,

832 F.2d 408 (7th Cir. 1987) .........................................................................40 Judulang v. Holder,

No. 10-694, 2011 U.S. LEXIS 9018 (U.S. Dec. 12, 2011) ...............44, 45, 49 Kaye v. Peake,

No. 06-2323, 2008 U.S. App. Vet. Claims LEXIS 979 (Aug. 6, 2008)........23 Lincoln v. Vigil,

508 U.S. 182 (1993).................................................................................31, 39 Lovato v. Shinseki,

No. 09-4013, 2011 U.S. App. Vet. Claims LEXIS 970 (Apr. 29, 2011) ......42 Martin v. Nicholson,

No. 05-0732, 2007 U.S. App. Vet. Claims LEXIS 1019 (June 11, 2007) ..............................................................................................23

vi

Page(s) McKinney v. Shinseki,

No. 10-3223, 2011 U.S. App. Vet. Claims LEXIS 1762 (Aug. 18, 2011)..............................................................................................42

Military Order of the Purple Heart v. Secretary of Veterans Affairs,

580 F.3d 1293 (Fed. Cir. 2009) ............................................................. passim Mitchell v. Shinseki,

No. 08-3940, 2010 U.S. App. Vet. Claims LEXIS 1224 (July 2, 2010) ...........................................................................................23, 24

Morris v. Nicholson,

21 Vet. App. 96 (2006) ..................................................................................23 Motor Vehicles Manufacturers Association v. State Farm Mutual

Automobile Insurance Co., 463 U.S. 29 (1983).................................................................29, 44, 45, 50, 51

NI Industries, Inc. v. United States,

841 F.2d 1104 (Fed. Cir. 1988) .....................................................................32 Neidert v. West,

No. 99-1012, 2000 U.S. App. Vet. Claims LEXIS 107 (Feb. 9, 2000).....................................................................................23, 24. 25

Owens v. Shinseki,

No. 07-3832, 2010 U.S. App. Vet. Claims LEXIS 1697 (Sept. 16, 2010)..................................................................................23, 24, 42

Paralyzed Veterans of America v. West,

138 F.3d 1434 (Fed. Cir. 1998) .....................................................................31 Perkins v. Shinseki, No. 10-2879, 2011 U.S. App. Vet. Claims LEXIS 2406 (Nov. 1, 2011)................................................................................................37 Pierce v. Underwood,

487 U.S. 552 (1988).......................................................................................13

vii

Page(s) Prickett v. Nicholson,

20 Vet. App. 370 (2006), aff’d, 257 F. App’x 288 (Fed. Cir. 2007).............23 Quinones v. Shinseki,

No. 08-3450, 2010 U.S. App. Vet. Claims LEXIS 1995 (Oct. 29, 2010)...............................................................................................42

Roberts v. Shinseki,

647 F.3d 1334 (Fed. Cir. 2011) ...............................................................23, 37 Rosa v. Shinseki,

No. 09-1563, 2010 U.S. App. Vet. Claims LEXIS 1684 (Sept. 14, 2010)..............................................................................................42

Rountree v. Shinseki,

No. 09-0135, 2010 U.S. App. Vet. Claims LEXIS 2119 (Nov. 18, 2010)..............................................................................................42

Rowe v. Nicholson,

No. 05-0222, 2007 U.S. App. Vet. Claims LEXIS 756 (Apr. 26, 2007) ......23 Schism v. United States,

316 F.3d 1259 (Fed. Cir. 2002) .....................................................................32 SEC v. Chenery Corp.,

332 U.S. 194 (1947).......................................................................................50 Sellers v. Principi,

No. 99-1731, 2001 U.S. App. Vet. Claims LEXIS 55 (Jan. 24, 2001) .........23 Shalala v. Guernsey Memorial Hospital,

514 U.S. 87 (1995).............................................................................32, 37, 39 Shinseki v. Sanders,

129 S. Ct. 1696 (2009).............................................................................11, 43 SKF USA Inc. v. United States,

630 F.3d 1365 (Fed. Cir. 2011) .........................................................45, 50, 51

viii

Page(s) Splane v. West,

216 F.3d 1058 (Fed. Cir. 2000) ...............................................................31, 32 Thompson v. Brown,

8 Vet. App. 169 (1995) ..................................................................................23 Tobler v. Derwinski,

2 Vet. App. 8 (1991) ................................................................................18, 21 Triplett v. Shinseki,

No. 09-1609, 2011 U.S. App. Vet. Claims LEXIS 488 (Mar. 11, 2011) ..............................................................................................42

Tunik v. MSPB,

407 F.3d 1326 (Fed. Cir. 2005) ...............................................................32, 39 Wahl v. West,

No. 97-1440, 1998 U.S. Vet. App. LEXIS 1688 (Oct. 19, 1998) .................23 Walters v. National Association of Radiation Survivors,

473 U.S. 305 (1985).................................................................................10, 43

AGENCY DECISIONS Board of Veterans’ Appeals Docket No. 02-12 908A (Apr. 28, 2004)...................22 Board of Veterans’ Appeals Docket No. 07-17 772, (Mar. 6, 2009) ................22, 37 Board of Veterans’ Appeals Docket No. 08-18 828 (Feb. 1, 2011) ........................22 Board of Veterans’ Appeals Docket No. 08-26 588 (Sept. 16, 2010) .....................22 Board of Veterans’ Appeals Docket No. 91-17 878 (Jan. 3, 1997).........................22 Board of Veterans’ Appeals Docket No. 92-19 154 (June 15, 2000)......................22 Board of Veterans’ Appeals Docket No. 93-15 120 (Mar. 12, 1996) .....................22

ix

Page(s) Board of Veterans’ Appeals Docket No. 94-06 400 (Dec. 29, 1999)......................22 Board of Veterans’ Appeals Docket No. 9147 763 (June 5, 1992) .........................22

STATUTES, REGULATIONS, AND AGENCY MATERIALS 5 U.S.C. § 553.................................................................................................. passim 5 U.S.C. § 706.................................................................................................. passim 28 U.S.C. § 2412......................................................................................................13 38 U.S.C. § 501........................................................................................................31 38 U.S.C. § 501 (Supp. III 1992).............................................................................32 38 U.S.C. § 502..........................................................................................................1 38 U.S.C. § 4004 (1970) ..........................................................................................15 38 U.S.C. § 5103......................................................................................................10 38 U.S.C. § 5107......................................................................................................10 38 U.S.C. § 5108......................................................................................................10 38 U.S.C. § 5902........................................................................................................9 38 U.S.C. § 7101........................................................................................................8 38 U.S.C. § 7104..............................................................................................8, 9, 37 38 U.S.C. § 7107........................................................................................................9 38 U.S.C. § 7251......................................................................................................10 38 U.S.C. § 7252..................................................................................................9, 10

x

Page(s) 38 U.S.C. § 7292......................................................................................................10 Department of Veterans Affairs Act, Pub. L. No. 100-527, 102 Stat. 2635

(1988).............................................................................................................14 38 C.F.R. § 3.102 .....................................................................................................10 38 C.F.R. § 3.103 ............................................................................................. passim 38 C.F.R. § 3.156 .....................................................................................................10 38 C.F.R. § 3.159 .....................................................................................................10 38 C.F.R. § 3.2600 .....................................................................................................8 38 C.F.R. § 19.5 ...................................................................................................9, 37 38 C.F.R. § 19.103 (1972) .......................................................................................15 38 C.F.R. § 19.174 (1990) .................................................................................17, 19 38 C.F.R. § 20.1 .......................................................................................................19 38 C.F.R. § 20.702 .....................................................................................................9 38 C.F.R. § 20.703 .....................................................................................................9 38 C.F.R. § 20.705 (1992) .......................................................................................20 38 C.F.R. § 20.1304 ...............................................................................19, 20, 26, 36 Appeals Regulations; Rules of Practice, 48 Fed. Reg. 6961 (Feb. 17, 1983) .........16 Appeals Regulations; Rules of Practice, 57 Fed. Reg. 4088 (Feb. 3, 1992) ...........19

xi

Page(s) Appeals Regulations and Rules of Practice; Request for Change in

Representation, Request for Personal Hearing, or Submission of Additional Evidence Following Certification of an Appeal to the Board of Veterans Appeals, 55 Fed. Reg. 20,144 (May 15, 1990) .........16, 17

Due Process and Appellate Rights, 37 Fed. Reg. 14,780 (July 25, 1972) .............................................................................13, 14, 15, 17 Procedural Due Process, 55 Fed. Reg. 13,522 (Apr. 11, 1990) .......................17, 18 Procedural Due Process and Appellate Rights, 58 Fed. Reg. 16,359 (Mar. 26, 1993) ..............................................................................................19 Review of Benefit Claims Decisions, 66 Fed. Reg. 21,871 (May 2, 2001)..............22 Rules Governing Hearings Before the Agency of Original Jurisdiction and

the Board of Veterans’ Appeals; Clarification, 76 Fed. Reg. 52,572 (Aug. 23, 2011)...................................................................................... passim

Rules of Practice; Hearings Before the Board on Appeal, 58 Fed. Reg.

27,934 (May 12, 1993) ..................................................................................20 Department of Veterans Affairs, VA Notice 96-18 (Dec. 24, 1996).......................22 Veterans Benefits Administration, M21-1 Adjudication Procedures Manual,

Change 123, Chapter 18: Appeals, § 18.23 (Aug. 12, 1975) ........................15 Veterans Benefits Administration, M21-1 Adjudication Procedures Manual,

Change 145, Chapter 18: Appeals, § 18.18 (Sept. 9, 1976) ..........................15 Veterans Benefits Administration, M21-1 Adjudication Procedures Manual,

Change 349, Chapter 18: Appeals, § 18.18 (Mar. 18, 1983).........................16 Veterans Benefits Administration, M21-1 Adjudication Procedures Manual,

Change 63, Chapter 35: Hearings and Hearing Officers, § 35.01 (Oct. 12, 1994) ........................................................................................................21

xii

Page(s) Veterans Benefits Administration, M21-1 Adjudication Procedures Manual,

Change 85, Chapter 35: Hearings and Hearing Officers, § 35.01 (Sept. 27, 1996) ........................................................................................................21

Veterans Benefits Administration, M21-1 Adjudication Procedures Manual,

Change 96, Chapter 35: Hearings and Hearing Officers, § 35.01 (Aug. 27, 1997) ........................................................................................................21

Veterans Benefits Administration, M21-1 Adjudication Procedures Manual,

Change 136, Chapter 35: Decision Review Officers, Informal Conferences and Hearings (June 4, 2001)....................................................21

OTHER SOURCES Heather G. Belanger et al., The Veterans Health Administration System of

Care for Mild Traumatic Brain Injury: Costs, Benefits, and Controversies, 24 J. Head Trauma Rehabil. 4 (2009) ...................................11

Board of Veterans Appeals, Report of the Chairman: Fiscal Year 2010

(2011), available at http://www.bva.va.gov/ docs/Chairmans_Annual_Rpts/ BVA2010AR.pdf..............................9, 11, 12

Brief of Appellant-Petitioner, Military Order of the Purple Heart v.

Secretary of Veterans Affairs, 580 F.3d 1293 (Fed. Cir. 2009) (2008-7076), 2008 U.S. Fed. Cir. Briefs LEXIS 559 ..............................................34

Brief of Appellee, Bryant v. Shinseki, 23 Vet. App. 488 (2010) (No. 08-

4080) ..............................................................................................................49 Brief of Appellee, Herrington v. Shinseki, 2011 U.S. App. Vet. Claims

LEXIS 708 (2011) (No. 09-0620) .................................................................21 Brief of Appellee, Mitchell v. Shinseki, 2010 U.S. App. Vet. Claims LEXIS

1224 (2010) (No. 08-3940)............................................................................21 Brief of Appellee, Morton v. Gober, 243 F.3d 557 (Fed. Cir. 2000) (No. 99-

7191), 2000 WL 34003997............................................................................37

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Page(s) Brief of Appellee, Owens v. Shinseki, 2010 U.S. App. Vet. Claims LEXIS

1697 (2010) (No. 07-3832)............................................................................21 Brief of Appellee-Respondent, Military Order of the Purple Heart v.

Secretary of Veterans Affairs, 580 F.3d 1293 (Fed. Cir. 2009) (No. 2008-7076), 2009 U.S. Fed. Cir. Briefs LEXIS 167 .....................................34

Brief of Respondent, Preminger v. Secretary of Veterans Affairs, 632 F.3d

1345 (Fed. Cir. 2011) (No. 2009-7044), 2009 WL 4863469 ........................35 Brief of Respondent-Appellee, Black v. West, 185 F.3d 884 (Fed. Cir. 1999)

(No. 98-7036), 1998 WL 34098714 ..............................................................37 Brief of Respondent-Appellee, Duncan v. Shinseki, 333 F. App’x 571

(Fed. Cir. 2009) (No. 2008-7143), 2009 WL 1044155 .................................21 Caroline Cassels, High Rates of Severe Functional Impairment Found in

Returning Soldiers Due to PTSD, Depression, Medscape Medical News, June 15, 2010, http://www.medscape.com/viewarticle/723550.........11

Court of Appeals for Veterans Claims, Annual Report (2010),

available at http://www.uscourts.cavc.gov/documents/ FY_2010_Annual_report_June_27_2011_.pdf .............................................12

Court of Appeals for Veterans Claims, Annual Reports (2000-2009),

available at http://www.uscourts.cavc.gov/documents/ Annual_Report_FY_2009_October_1_2008_to_ September_30_2009.pdf................................................................................12

GAO 10-213, Veterans’ Disability Benefits: Further Evaluation of Ongoing

Initiatives Could Help Identify Effective Approaches for Improving Claims Processing, at 2 (Jan. 2010), available at http://www.gao.gov/new.items/d10213.pdf ..............................................8, 12

Thomas J. Reed, Parallel Lines Never Meet: Why the Military Disability

Retirement and Veterans Affairs Department Claim Adjudication Systems Are a Failure, 19 Widener L.J. 57, 97 (2009) .................................11

xiv

Page(s) Reply Brief of Respondent-Appellant, MacKlem v. Shinseki, No. 2011-7034

(Fed. Cir. July 5, 2011), 2011 WL 3288102 .................................................35 Craig Roberts, VA: Broken Claims System Can’t Be Fixed, The American

Legion, Mar. 22, 2010, available at http://www.legion.org/veteransbenefits/9488/va-broken-claims-system-cant-be-fixed......................................................................................12

Transcript of Oral Argument, Astrue v. Ratliff, 130 S. Ct. 2521 (2010) (No. 08-1322) ..........................................................................................13, 41 Transcript of Oral Argument, Bryant v. Shinseki, 23 Vet. App. 488 (2010)

(No. 08-4080) ................................................................................................49 Department of Veterans Affairs, Leadership Covenant of the Veterans

Benefits Administration (June 28, 2002), available at http://www.vba.va.gov/ VBA/about.asp .....................................................7, 8

1

STATEMENT OF RELATED CASES

Counsel for Petitioner National Organization of Veterans’ Advocates, Inc. is

not aware of any directly related cases now pending in the Supreme Court, this

Court, or the other courts of appeals. A decision invalidating the VA’s new rule

would affect veterans seeking benefits from the VA, including those whose cases

are currently pending with the VA or on appeal.

JURISDICTIONAL STATEMENT

On August 23, 2011, the Department of Veterans Affairs issued a final rule,

Rules Governing Hearings Before the Agency of Original Jurisdiction and the Board

of Veterans’ Appeals; Clarification, 76 Fed. Reg. 52,572 (Aug. 23, 2011). On

September 9, 2011, the National Organization of Veterans’ Advocates, Inc. timely

petitioned for judicial review. This Court has jurisdiction to review rules issued by

the Department of Veterans Affairs under 38 U.S.C. § 502.

2

STATEMENT OF THE ISSUES

For decades, veterans appealing disability claims to the Board of Veterans’

Appeals have enjoyed the due process rights set forth in 38 C.F.R. § 3.103. That

provision requires the Board to take various affirmative steps to assist veterans in

proving their claims. It is crucial to safeguarding veterans’ substantive rights to

disability benefits, and it reflects our Nation’s basic policy of keeping faith with

the brave men and women who wear its uniform.

On August 23, 2011, the Department of Veterans Affairs (VA) abruptly

announced—and immediately put into effect—a new regulation that stripped

veterans of their § 3.103 rights in hearings before the Board.

The issues presented in this case are as follows:

1. Whether the VA’s new rule must be set aside for failure to comply with the notice-and-comment requirements of the Administrative Procedure Act (APA).

2. Whether the VA’s new rule must be set aside because it is arbitrary

and capricious under the APA.

3

STATEMENT OF THE CASE

In March 1865, as the Civil War was slowly drawing to a close, President

Abraham Lincoln reminded his countrymen of their fundamental duty “to care for

him who shall have borne the battle, and for his widow, and his orphan.” Today

Lincoln’s words flank the entrance to the Department of Veterans Affairs (VA),

the agency that administers our Nation’s complex system of veterans’ disability

benefits. By helping disabled veterans obtain the assistance they have earned, the

VA upholds our Nation’s commitment to the men and women who have risked

their lives in its service. This case seeks review of a recent VA rule that

undermines this commitment and violates the Administrative Procedure Act

(APA).

Veterans whose disability claims are denied by VA regional offices have the

right to appeal those denials to the Board of Veterans’ Appeals. For years,

veterans appearing before the Board have enjoyed the protections of 38 C.F.R.

§ 3.103. This provision creates certain “Procedural due process and appellate

rights” that apply to all VA adjudications. 38 C.F.R. § 3.103(a). They include the

right of veterans to have the officials conducting their hearings “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.” Id.

§ 3.103(c)(2). The provision also establishes the VA’s basic “obligation” in all

4

proceedings “to assist a claimant in developing the facts pertinent to [his or her]

claim” and “to render a decision which grants every benefit that can be supported

in law.” Id. § 3.103(a).

Section 3.103 protects disabled veterans and their entitlement to benefits. It

reflects the “general character” of the veterans’ benefits system, which is “strongly

and uniquely pro-claimant.” Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998).

As this Court has explained, the distinctly “non-adversarial” nature of the system

requires the Board “to fully and sympathetically develop the veteran’s claim to its

optimum before deciding it on the merits.” Comer v. Peake, 552 F.3d 1362, 1368

(Fed. Cir. 2009) (internal quotation marks omitted). Section 3.103 embodies the

basic truth that “[t]he government’s interest in veterans cases is not that it shall

win, but rather that justice shall be done, that all veterans so entitled receive the

benefits due to them.” Id. at 1369 (internal quotation marks omitted).

For almost two decades, the U.S. Court of Appeals for Veterans Claims

(“Veterans Court”) consistently applied § 3.103’s vital procedural rights to all

disability hearings conducted before the Board. During that period, it frequently

reversed and remanded Board decisions for failure to abide by § 3.103(c)(2)’s

requirement that hearing officers identify evidentiary gaps and encourage

claimants to submit proof to fill those gaps. See infra at 17-18, 21-25. The VA

was bound by these decisions, and the Board repeatedly recognized its duty to

5

comply with § 3.103 when conducting hearings. See infra at 22. Indeed, the

relevant VA regulations and internal guidance manuals have long recognized that

§ 3.103 applies to Board hearings, the VA regularly admitted as much to the

Veterans Court, and there is no evidence in the record that the VA ever deliberately

ignored the court’s consistent holdings. See infra at 13-22.

Then the VA abruptly changed course. On August 23, 2011, it promulgated

a new rule expressly depriving veterans of their § 3.103 rights in hearings before

the Board. Rules Governing Hearings Before the Agency of Original Jurisdiction

and the Board of Veterans’ Appeals; Clarification, 76 Fed. Reg. 52,572 (Aug. 23,

2011) (“2011 Rule”). According to the rule, § 3.103’s rights will now extend only

to hearings conducted by the VA Regional Offices (ROs), and not to those

conducted on appeal to the Board. Id. at 52,573.

The VA made this change effective immediately, without following the

notice-and-comment procedures set forth in the APA, 5 U.S.C. § 553. Id. at

52,572. It claimed that the new rule was exempt from notice and comment

because it was a “procedural” rule that merely codified existing practice and would

have no “substantive” effect on veterans. Id. at 52,573.

This assertion does not withstand scrutiny. The new rule in fact reverses

longstanding practice in which both federal courts and the VA itself have

consistently applied § 3.103 to Board hearings. Moreover, the rule deprives

6

veterans of their regulatory due process rights, interferes with their ability to obtain

hard-earned benefits, and erodes the VA’s established policy of helping them bring

claims. Despite these effects, the VA nowhere explained how the rule could

qualify as a “procedural” rule—the category of agency action reserved for mere

housekeeping changes to routine agency practices that are unworthy of public

input. See, e.g., Chrysler Corp. v. Brown, 441 U.S. 281, 310 (1979). Nor did the

VA address this Court’s decision in Military Order of the Purple Heart v.

Secretary of Veterans Affairs, which makes clear that § 3.103 is a substantive rule

and that the VA must comply with the APA’s procedural requirements before

eliminating its due process protections. 580 F.3d 1293 (Fed. Cir. 2009).

The VA’s substantive justification of the new rule was equally flawed. The

VA never mentioned—and apparently failed to consider—§ 3.103’s important and

longstanding role in protecting disabled veterans during their Board hearings. Nor

did it address the harm the rule will inflict on the men and women whose interests

the VA is obligated to defend. Instead, the VA relied on its claim that the rule

simply codifies existing policy. 2011 Rule, 76 Fed. Reg. at 52,573. But the VA’s

assertion that it “has become standard VA practice and procedure” since the early

1990s to deny veterans the protections of § 3.103 lacks any basis in fact. Id. The

VA’s lack of awareness that its new rule departs from longstanding practice is a

clear sign that the rule was not the product of reasoned decisionmaking.

7

Shortly after the VA issued its new rule, the National Organization of

Veterans’ Advocates, Inc. (NOVA)—a not-for-profit organization dedicated to

helping veterans obtain the benefits they are due—filed this petition for review.

NOVA challenges the rule for violating the APA: The VA unlawfully promulgated

the rule without following the notice-and-comment requirements of 5 U.S.C.

§ 553, and the VA’s explanation of the rule was arbitrary and capricious under 5

U.S.C. § 706(2)(A).1

NOVA’s purpose in bringing this lawsuit is to ensure that our Nation

upholds its basic obligations to our veterans. To advance that mission, NOVA

respectfully asks this Court to vacate the VA’s rule pursuant to the APA.

STATEMENT OF FACTS

The words of General Omar Bradley hang in every VA office across the

country: “We are dealing with veterans, not procedures—with their problems, not

ours.” U.S. Dep’t of Veterans Affairs, Leadership Covenant of the Veterans

Benefits Administration (June 28, 2002), available at http://www.vba.va.gov/

VBA/about.asp (emphasis added). The motto recognizes the VA’s obligation to

seek a just resolution of each claim brought by each veteran. It conveys “the

1 NOVA explained that it has standing to bring this case because the group and its members are adversely affected by the VA’s effort to deprive veterans of their § 3.103 rights. See Petition for Review at 2-3 (Sept. 9, 2011); see also Disabled Am. Veterans v. Gober, 234 F.3d 682, 689-90 (Fed. Cir. 2000) (confirming NOVA’s standing to challenge VA rules affecting claims for veterans benefits).

8

sanctity of [the VA’s] mission” of “fulfilling a grateful nation’s promise to those

who have served.” Id. The VA rule at issue in this case diverges from this

mission, departs from past practice, and threatens to exacerbate existing

deficiencies in the disability claims process.

A. Overview Of The Veterans Disability Claims System

The VA administers the federal program providing financial support to

veterans with service-related disabilities. See generally Henderson v. Shinseki, 131

S. Ct. 1197, 1200 (2011). A veteran seeking disability benefits must file a claim in

one of nearly 60 ROs located throughout the United States and its territories. See

GAO 10-213, Veterans’ Disability Benefits: Further Evaluation of Ongoing

Initiatives Could Help Identify Effective Approaches for Improving Claims

Processing, at 2 (Jan. 2010), available at http://www.gao.gov/new.items/

d10213.pdf. The RO “receives and processes [the claim], and makes an initial

decision on whether to grant or deny benefits.” Henderson, 131 S. Ct. at 1200.

Following this initial review, the veteran is also entitled to de novo review by a

“Decision Review Officer,” a senior technical expert empowered to make final

decisions on behalf of the RO. See 38 C.F.R. § 3.2600.

If the veteran disagrees with the RO’s ultimate decision, he or she may seek

de novo review again, this time in the Board of Veterans’ Appeals. 38 U.S.C.

§§ 7101, 7104(a) The Board is the highest internal adjudicatory body within the

9

VA. A veteran may request a hearing before the Board, which takes place either in

Washington D.C. or at the RO where the claim was filed (either in person or by

videoconference). 38 U.S.C. § 7107(b), (d); 38 C.F.R. §§ 3.103, 20.702, 20.703.

The Board is required by statute and regulation to comply with all VA regulations

when conducting hearings and adjudicating the veteran’s claim. 38 U.S.C.

§ 7104(c); 38 C.F.R. § 19.5.

The overwhelming majority of veterans—over ninety percent—participate in

Board hearings without attorneys. Board of Veterans Appeals, Report of the

Chairman: Fiscal Year 2010, at 23 (2011), available at

http://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2010AR.pdf (“Report

of the Chairman”). Those veterans who do receive help in navigating the claims

process are typically assisted by non-lawyer volunteers with Veterans Service

Organizations. Id. Congress has prohibited such groups from charging any fees

for their assistance, however, see 38 U.S.C. § 5902(b)(1)(A), and this Court has

made clear that “representation by an organizational aide is not equivalent to

representation by a licensed attorney,” Comer v. Peake, 552 F.3d 1362, 1369 (Fed.

Cir. 2009).

The VA lacks authority to appeal any Board decision granting a veteran’s

claim for benefits. 38 U.S.C. § 7252(a). Claimants, however, may appeal

unfavorable decisions to the Veterans Court, an Article I court established in 1988.

10

38 U.S.C. §§ 7251, 7252(a). They may further appeal any unfavorable decision

from the Veterans Court to this Court. 38 U.S.C. § 7292.

Congress intended the disability claims process to function “with a high

degree of informality and solicitude for the claimant.” Walters v. Nat’l Ass’n of

Radiation Survivors, 473 U.S. 305, 311 (1985). This intent is reflected in a variety

of procedures that are “unusually protective” of veterans. Henderson, 131 S. Ct. at

1204 (internal quotation marks omitted); see also, e.g., id. at 1200 (no statute of

limitations for filing claim); 38 U.S.C. § 5107 and 38 C.F.R. § 3.102 (granting

claimants “benefit of the doubt” when evidence is in equipoise); 38 U.S.C.

§ 5103(a) and 38 C.F.R. § 3.159(b) (requiring VA to assist veteran by making

reasonable efforts to obtain evidence in support of his claim); 38 U.S.C. § 5108

and 38 C.F.R. § 3.156 (allowing veterans to reopen previously denied claims with

new and material evidence).

Veterans also enjoy the “Procedural due process and appellate rights” set

forth in 38 C.F.R. § 3.103. That provision enshrines in law the VA’s obligation to

assist claimants—during all VA hearings—by explaining the issues in their case

and recommending that they submit particular evidence to substantiate their

claims. Id. § 3.103(c)(2). It also requires the VA to grant veterans “every benefit

that can be supported in law” and gives claimants the right to receive proper notice

of VA decisions, to obtain a hearing “at any time on any issue involved in a

11

claim,” and to have representation by third parties during the claims process. Id.

§ 3.103(a), (b), (c)(1), (e). Sections B and C below address the aspects of

§ 3.103’s text, purpose, and history that are especially relevant to this case.

The disability claims system is supposed to work to the veteran’s advantage.

But the reality often falls short. For one thing, the disability evaluation process is

itself arduous and complex. See generally Henderson v. Shinseki, 589 F.3d 1201,

1231 (Fed. Cir. 2009) (Mayer, J., dissenting), rev’d on other grounds, 131 S. Ct.

1197 (2011); id. at 1221 (Dyk, J., concurring); Thomas J. Reed, Parallel Lines

Never Meet: Why the Military Disability Retirement and Veterans Affairs

Department Claim Adjudication Systems Are a Failure, 19 Widener L.J. 57, 97

(2009). It can often be difficult for veterans to navigate—especially for the vast

majority who try to do so without attorneys. See Shinseki v. Sanders, 129 S. Ct.

1696, 1707 (2009); Report of the Chairman at 23. The challenges only multiply

for the many claimants who suffer from traumatic brain injuries or post-traumatic

stress disorder.2

2 See generally Heather G. Belanger et al., The Veterans Health

Administration System of Care for Mild Traumatic Brain Injury: Costs, Benefits, and Controversies, 24 J. Head Trauma Rehabil. 4 (2009); Caroline Cassels, High Rates of Severe Functional Impairment Found in Returning Soldiers Due to PTSD, Depression, Medscape Medical News, June 15, 2010, http://www.medscape.com/viewarticle/723550.

12

The system is also overwhelmed with claims. Delays are rampant. On

average, it takes 196 days for the RO to issue an initial decision on a veteran’s

claim—and it takes the Board 886 days to process appeals. GAO 10-213 at 9;

Report of the Chairman at 19. One senior VA official recently told Congress that

“‘[t]he current system is broken’” and “‘it can’t be fixed.’” Craig Roberts, VA:

Broken Claims System Can’t Be Fixed, The American Legion, Mar. 22, 2010,

available at http://www.legion.org/veteransbenefits/9488/va-broken-claims-

system-cant-be-fixed (quoting Dr. Peter Levin, VA Chief Technology Officer).

Most troubling of all are the astounding rates of error that permeate every

stage of the disability claims process. Veterans appealing RO decisions to the

Board prevail approximately 70 percent of the time. Report of the Chairman at 23.

The Board’s track record on appeal is even worse. From 2001 to 2010, the

Veterans Court reversed or remanded Board decisions in no less than 80 percent of

the cases it decided on the merits.3

Part of the problem is the VA’s policy of asserting highly aggressive

litigating positions against veteran claimants. Shockingly, the Government has

told the Supreme Court that in over half of its recent cases before the Veterans

3 Court of Appeals for Veterans Claims, Annual Reports (2000-2009),

available at http://www.uscourts.cavc.gov/documents/Annual_Report_FY_2009_ October_1_2008_to_September_30_2009.pdf; Court of Appeals for Veterans Claims, Annual Report (2010) at 2, available at http://www.uscourts.cavc.gov/ documents/FY_2010_Annual_report_June_27_2011_.pdf.

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Court, the VA takes a position—opposing a veteran’s claim for relief—that is not

merely wrong, but in fact “substantially unjustified” under the law. Tr. of Oral

Arg. at 51-52, Astrue v. Ratliff, 130 S. Ct. 2521 (2010) (No. 08-1322).4

These troubling facts illustrate the significant gap between the pro-veteran

rhetoric of the disability claim system and the reality of that system as experienced

by veterans themselves. Against this backdrop, the VA now seeks to deprive

veterans of their § 3.103 due process rights before the Board.

B. The Longstanding Application Of § 3.103 To Board Hearings

Section 3.103 establishes the regulatory due process rights of veterans

throughout the disability claims system. The VA’s new rule reverses decades of

practice in which § 3.103’s safeguards have protected veterans in Board hearings

and helped ensure that they receive their hard-earned benefits.

1. The 1972 Codification Of Due Process Rights In § 3.103. In 1972, the

Veterans Administration first codified a statement of due process rights granted to

all claimants for veterans disability benefits. Due Process and Appellate Rights,

4 Under the Equal Access to Justice Act, a litigant who successfully

prevails in a civil action for VA benefits is entitled to attorneys fees unless the Government’s litigating position is “substantially justified” under applicable legal principles. 28 U.S.C. § 2412(d); see also Pierce v. Underwood, 487 U.S. 552, 565-66 & n.2 (1988) (Government’s position is “substantially unjustified” if it is incapable of “satisfy[ing] a reasonable person”).

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37 Fed. Reg. 14,780 (July 25, 1972) (“1972 Rule”).5 It did so by issuing a

substantive rule in accordance with the notice-and-comment procedures of the

APA. Id. The title of the regulation, which appeared at 38 C.F.R. § 3.103, was

“Due process—procedural and appellate rights with regard to disability and death

benefits and related relief.” Id. at 14,780. The provision declared that the rights

set forth therein would “apply to all claims for benefits and relief and decisions

thereon within the purview of this part [i.e., Title 38, Chapter 1, Part 3, dealing

with “Adjudication” of veterans’ claims].” Id.

Section 3.103 announced a wide array of due process protections applicable

in Veterans Administration proceedings. One of the most important appeared in

§ 3.103(a):

It is the obligation of the Veterans Administration to assist a claimant in developing the facts pertinent to his claim and to render a decision which grants him every benefit that can be supported in law while protecting the interests of the Government.

1972 Rule, 37 Fed. Reg. at 14,780.

Section 3.103(c), meanwhile, established that veteran claimants were

entitled to a hearing “at any time on any issue involved in a claim.” Id. That

subsection further declared that

5 The Veterans Administration was responsible for administering the disability claims system until it was granted Cabinet status and became the Department of Veterans Affairs in 1989. See Department of Veterans Affairs Act, Pub. L. No. 100-527, § 2, 102 Stat. 2635, 2635 (1988).

15

It is the responsibility of the Veterans Administration personnel conducting the hearing to explain fully the issues and to suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to his position.

1972 Rule, 37 Fed. Reg. at 14,781.

From the beginning, these regulatory due process protections applied both to

initial hearings conducted at regional offices of the Veterans Administration and to

those conducted before the Board of Veterans Appeals. The statutes and

regulations governing the Board’s activities made this clear by requiring the Board

to follow all VA regulations, including § 3.103. See 38 U.S.C. § 4004(c) (1970);

38 C.F.R. § 19.103 (1972). In addition, § 3.103(a) itself indicated that all of its

provisions apply to all claims and decisions “adjudicat[ed]” by the Veterans

Administration. 1972 Rule, 37 Fed. Reg. at 14,780. And the plain terms of

§ 3.103(c)—which recognized the right to a hearing “at any time”—also clearly

encompassed hearings before the Board. Indeed, as early as 1975, the VA’s

internal guidance manual expressly applied § 3.103’s due process protections to

hearings on appeal.6

6 Veterans Benefits Administration, M21-1 Adjudication Procedures

Manual (“M21-1”), Change 123, Chapter 18: Appeals, § 18.23(a)(1) (Aug. 12, 1975) (recognizing that due process requirements of “VAR 1103” (a reference to what became § 3.103) apply throughout the VA adjudicative process, including on appeal); see also M21-1, Change 145, Chapter 18: Appeals, § 18.18(a)(1) (Sept. 9, 1976) (same).

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2. The 1983 Amendment To The Board’s Rules Of Practice. In 1983, the

Veterans Administration again engaged in notice-and-comment rulemaking

pursuant to the APA. See Appeals Regulations; Rules of Practice, 48 Fed. Reg.

6961 (Feb. 17, 1983) (“1983 Rule”). This time it amended the Board’s formal

“Rules of Practice.” Id.

The new rule added a direct cross-reference from Rule of Practice 1 (then

codified at 38 C.F.R. § 19.101) to § 3.103’s “Due process—procedural and

appellate rights.” 1983 Rule, 48 Fed. Reg. at 6971. As the VA was well aware—

and as the Veterans Court itself later noted—this cross-reference confirmed that

§ 3.103’s rights applied to Board hearings. See Douglas v. Derwinski, 2 Vet. App.

435, 440-41 (1992) (en banc); Douglas v. Derwinski, 2 Vet. App. 103, 110 (1992)

(three-judge panel), aff’d in part and vacated in part, 2 Vet. App. 435 (1992).

Meanwhile, the VA’s administrative manual continued to recognize that § 3.103’s

due process rights extended to hearings on appeal. See M21-1, Change 349,

Chapter 18: Appeals, § 18.18(a)(1) (Mar. 18, 1983); Douglas, 2 Vet. App. at 441.

3. The 1990 Amendments To § 3.103. In 1990, the VA again revised its

regulations in a way that explicitly confirmed § 3.103’s application to hearings

before the Board. See Appeals Regulations and Rules of Practice; Request for

Change in Representation, Request for Personal Hearing, or Submission of

Additional Evidence Following Certification of an Appeal to the Board of Veterans

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Appeals, 55 Fed. Reg. 20,144 (May 15, 1990) (“1990 Rule”). Once again, this

change was promulgated in accordance with the APA’s notice-and-comment

procedures.

This time the revisions affected the language of § 3.103(c) itself. The

original version of § 3.103(c) had provided for a hearing “at any time on any

issue.” 1972 Rule, 37 Fed. Reg. at 14,781. The 1990 revision qualified this

guarantee by making it “subject to the limitations described in § 19.174 of this

chapter with respect to hearings in claims which have been certified to the Board

of Veterans Appeals for appellate review.” See 1990 Rule, 55 Fed. Reg. at 20,148.

Section 19.174 dealt exclusively with Board hearings; it declared that veterans

appealing their claims to the Board had 60 days in which to request a hearing. See

38 C.F.R. § 19.174 (1990). By expressly linking § 3.103’s rights to § 19.174, the

VA again revealed its awareness that § 3.103 applied to such hearings.7

4. The Veterans Court’s 1992 Douglas Decision. The Veterans Court first

addressed § 3.103’s application to Board hearings in 1992, in the landmark case of

Douglas v. Derwinski. A three-judge panel explicitly confirmed that § 3.103’s due

7 At roughly the same time, the VA also made several organizational changes to § 3.103. See Procedural Due Process, 55 Fed. Reg. 13,522 (Apr. 11, 1990). The changes divided § 3.103(c) into two subsections. Id. at 13,527-28. The obligation of the VA hearing officer “to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked” was included in the new § 3.103(c)(2). Id. at 13,528. This clerical change had no substantive effect on the application of § 3.103 to hearings before the Board.

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process rights do in fact protect veterans participating in hearings before the Board.

Douglas, 2 Vet. App. at 110. It reached this conclusion based on the text of the

various statutory and regulatory provisions noted above. Id. The VA sought and

obtained en banc review. But the full court affirmed the original panel’s decision

and rejected the VA’s argument that § 3.103 applies only to hearings conducted by

the VA’s regional offices. Douglas, 2 Vet. App. at 440-42. The court relied on

both the text of the regulations and the VA’s own administrative manual. Id.

The Veterans Court’s decision in Douglas definitively established that

veterans participating in Board hearings were protected by § 3.103’s due process

rights. That decision was both “binding and authoritative” on the VA. See Tobler

v. Derwinski, 2 Vet. App. 8, 14 (1991) (VA must follow Veterans Court decisions

unless or until they are overturned by this Court or the Supreme Court). As

explained in greater detail below, Douglas would govern the conduct of those

hearings—and the rights of countless veteran claimants—for decades to come.

5. The 1992 And 1993 Regulatory Amendments. While the Veterans Court

was considering Douglas—and over the year or so that followed—the VA

modified the regulations applying to the Board several times in various minor

ways. None of these changes sought to reverse Douglas, and none had any

substantive effect on § 3.103’s application to Board hearings.

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In 1992, the VA moved its Rules of Practice from Part 19 of Title 38 to Part

20. Appeals Regulations; Rules of Practice, 57 Fed. Reg. 4088, 4104-30 (Feb. 3,

1992) (“1992 Rule”). The VA retained the cross-reference to § 3.103 as part of

Rule 1 (now codified at 38 C.F.R. § 20.1), though that reference now appeared in

an Appendix to Part 20. Id. at 4128; see also id. at 4088 (indicating that

compilation of cross-references in appendices was at direction of Office of Federal

Register and was not intended to have any substantive effect).

As part of that same 1992 revision, the VA added a new cross-reference—

also appearing in the Appendix to Part 20—from 38 C.F.R. § 20.1304 to

§ 3.103(c). 1992 Rule, 57 Fed. Reg. at 4130. In the Board’s revised Rules of

Practice, § 20.1304 replaced 38 C.F.R. § 19.174 as the provision addressing the

circumstances under which a veteran could obtain a Board hearing. Id. at 4103.

This change further confirmed that hearings before the Board were subject to

§ 3.103.

In March 1993, the VA amended § 3.103 to reflect these earlier changes.

Procedural Due Process and Appellate Rights, 58 Fed. Reg. 16,359 (Mar. 26,

1993) (“March 1993 Rule”). Most importantly, it modified § 3.103’s then-obsolete

reference to § 19.374, changing it to refer instead to the new § 20.1304. Id. at

16,360. Again, this change reflected the VA’s understanding that the rights

protected by § 3.103 applied to hearings before the Board.

20

Soon thereafter, in May 1993, the VA amended 38 C.F.R. § 20.705—an

entirely different provision addressing where and by whom Board hearings would

be conducted. Rules of Practice; Hearings Before the Board on Appeal, 58 Fed.

Reg. 27,934 (May 12, 1993) (“May 1993 Rule”). Until then, § 20.705 had

specified that a Board hearing could be held either (1) before a Section of the

Board in Washington, D.C.; (2) before a traveling Section of the Board in VA

offices around the country; or (3) before other non-Board personnel, in the VA

facility with original jurisdiction over the claim, “acting as a hearing agency for the

Board.” 38 C.F.R. § 20.705 (1992). The VA’s amendment eliminated the third of

these options, thereby ensuring that all Board hearings would be conducted by

Board officials. May 1993 Rule, 58 Fed. Reg. at 27,936.

Nothing in this May 1993 rule mentioned § 3.103, abrogated Douglas,

amended the Board’s Rules of Practice, changed the VA’s internal administrative

manual, or otherwise affected due process rights for veterans before the Board in

any way. On the contrary, the March 1993 rule had already demonstrated the

VA’s contemporaneous intent and understanding that § 3.103’s protections would

apply to hearings before the Board, “subject to the limitations” then set forth in the

Board’s Rule of Practice at 38 C.F.R. § 20.1304. Nor did the VA treat the May

1993 rule as a substantive change to its regulations that would require public notice

and comment under the APA. Id.

21

6. The VA’s And Veterans Court’s Consistent Adherence To Douglas Over

Two Decades. The Veterans Court’s 1992 Douglas decision legally bound the VA

to apply § 3.103 in hearings before the Board. See Tobler, 2 Vet. App. at 14. Over

the decades that followed, the VA did not attempt to overturn Douglas by seeking

a new statute or issuing new regulations. Nor does it appear that the VA ever

asked either the Veterans Court or this Court to overrule Douglas.

On the contrary, the VA accepted its obligation to comply with Douglas and

acted accordingly. For example, the VA acknowledged § 3.103’s application to

Board hearings in numerous briefs filed with this Court and the Veterans Court.8

Its internal adjudication manual recognized that § 3.103’s due process rights

applied to all VA hearings—including those before the Board.9 The VA also

8 See, e.g., Brief of Respondent-Appellee at 23-25, Duncan v. Shinseki,

333 F. App’x 571 (Fed. Cir. 2009) (No. 2008-7143), 2009 WL 1044155 (applying § 3.103(c) to Board hearings); Brief of Appellee at 7, Herrington v. Shinseki, 2011 U.S. App. Vet. Claims LEXIS 708 (2011) (No. 09-0620); Brief of Appellee at 13, Mitchell v. Shinseki, 2010 U.S. App. Vet. Claims LEXIS 1224 (2010) (No. 08-3940) (noting that Board hearing officers “are obligated to ‘explore fully the basis for claimed entitlement’ and ‘suggest the submission of evidence which the claimant may have overlooked’” under § 3.103(c)(2)); Brief of Appellee at 4-5, Owens v. Shinseki, 2010 U.S. App. Vet. Claims LEXIS 1697 (2010) (No. 07-3832) (applying § 3.103(c)(2) to Board hearing).

9 See, e.g., M21-1, Change 63, Chapter 35: Hearings and Hearing Officers, § 35.01 (Oct. 12, 1994) (citing § 3.103 as source of the “General” policies governing VA hearings, a category explicitly encompassing appellate hearings before the Board); M21-1, Change 85, Chapter 35: Hearings and Hearing Officers, § 35.01 (Sept. 27, 1996) (same); M21-1, Change 96, Chapter 35: Hearings and Hearing Officers, § 35.01 (Aug. 27, 1997) (same); M21-1, Change 136, Chapter

22

expressly acknowledged, in the Federal Register, the “existing rights” of veterans

under § 3.103(c) to obtain hearings on appeal at the Board.10 And, most

importantly, the Board itself consistently explained, in a long string of decisions,

that § 3.103’s due process rights protected veterans in Board hearings.11 By

contrast, nothing in the record suggests that the VA deliberately ignored or

disobeyed Douglas at any time in years following that decision.

Throughout this same period, the Veterans Court also consistently protected

the regulatory due process rights of veteran claimants appearing before the Board.

35: Decision Review Officers, Informal Conferences and Hearings (June 4, 2001) (citing § 3.103 in explaining general “Purpose” of hearings, in “Overview” section encompassing both RO and Board hearings); see also Department of Veterans Affairs, VA Notice 96-18 (Dec. 24, 1996) (noting that M21-1, Chapter 35 applies to hearings on appeal).

10 Review of Benefit Claims Decisions, 66 Fed. Reg. 21,871, 21,872 (May 2, 2001) (responding to comment on proposed rule creating procedure for current procedure for de novo review of initial decisions within the RO, and referring to § 3.103(c) rights as “appellate rights”).

11 See, e.g., Board of Veterans’ Appeals (“BVA”) Docket No. 08-18 828 (Feb. 1, 2011) (acknowledging duty of Board hearing officers to comply with § 3.103(c)(2)); BVA Docket No. 08-26 588 (Sept. 16, 2010) (same); BVA Docket No. 07-17 772, (Mar. 6, 2009) (remanding in light of Douglas’s holding that § 3.103(c)(2) applies to Board hearings); BVA Docket No. 02-12 908A (Apr. 28, 2004) (acknowledging veteran’s rights to Board hearing under § 3.103); BVA Docket No. 92-19 154 (June 15, 2000) (acknowledging that § 3.103(c)(2) applies to the Board under Douglas); BVA Docket No. 94-06 400 (Dec. 29, 1999) (same); BVA Docket No. 91-17 878 (Jan. 3, 1997) (citing Board’s obligation to comply with § 3.103); BVA Docket No. 93-15 120 (Mar. 12, 1996) (acknowledging that § 3.103(c)(2) applies to Board under Douglas); BVA Docket No. 9147 763 (June 5, 1992) (explaining that § 3.103(c)(2) applies to Board hearings). All of these BVA decisions are available at http://www.index.va.gov/search/va/bva.html.

23

The court endorsed Douglas’s holding that § 3.103 applied to Board hearings

literally dozens of times.12 And this Court upheld one of these decisions after

concluding that a Board hearing had “satisfied the VA’s procedural due process

safeguards” set forth in § 3.103. Roberts v. Shinseki, 647 F.3d 1334, 1342-43 (Fed.

Cir. 2011).

The facts in the Veterans Court’s § 3.103 cases were often shocking. In

most instances, they involved veteran claimants—sometimes elderly, often

suffering from mental or physical impairments, almost always appearing without

counsel—struggling to navigate the complex and unfamiliar VA disability system.

Too often, such claimants would encounter indifference or apathy from the very

hearing officers responsible for helping them understand and develop their claims.

12 See, e.g., Bryant v. Shinseki, 23 Vet. App. 488, 491 n.1 (2010); Prickett v.

Nicholson, 20 Vet. App. 370, 382 (2006), aff’d, 257 F. App’x 288 (Fed. Cir. 2007); Morris v. Nicholson, 21 Vet. App. 96 (2006); Costantino v. West, 12 Vet. App. 517, 520 (1999); Thompson v. Brown, 8 Vet. App. 169, 176 (1995); Counts v. Brown, 6 Vet. App. 473, 479 (1994); Owens v. Shinseki, No. 07-3832, 2010 U.S. App. Vet. Claims LEXIS 1697, at *11-12 (Sept. 16, 2010); Mitchell v. Shinseki, No. 08-3940, 2010 U.S. App. Vet. Claims LEXIS 1224 (July 2, 2010); Kaye v. Peake, No. 06-2323, 2008 U.S. App. Vet. Claims LEXIS 979, at *15-17 (Aug. 6, 2008); Martin v. Nicholson, No. 05-0732, 2007 U.S. App. Vet. Claims LEXIS 1019, at *2-4 (June 11, 2007); Rowe v. Nicholson, No. 05-0222, 2007 U.S. App. Vet. Claims LEXIS 756, at *13-16 (Apr. 26, 2007); Sellers v. Principi, No. 99-1731, 2001 U.S. App. Vet. Claims LEXIS 55, at *2-3 (Jan. 24, 2001); Neidert v. West, No. 99-1012, 2000 U.S. App. Vet. Claims LEXIS 107 at *5-6 (Feb. 9, 2000); Wahl v. West, No. 97-1440, 1998 U.S. Vet. App. LEXIS 1688, at *13-14 (Oct. 19, 1998).

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In such cases, the Veterans Court’s rigorous enforcement of § 3.103’s due process

rights was necessary to secure the veterans a fair chance to obtain their benefits.

The following examples illustrate the significance of § 3.103 to vulnerable

veterans. In each of these cases, the Veterans Court sided with the veteran—and

vacated the Board’s decision—due to the Board’s violation of § 3.103(c)(2):

In Owens v. Shinseki, the Veterans Court vacated the Board’s denial of benefits to a Vietnam veteran who was recovering from brain surgery. No. 07-3832, 2010 U.S. App. Vet. Claims LEXIS 1697, at *1-3, 7 n.3 (Sept. 16, 2010). Because the veteran was partially incapacitated, his wife had tried to assist him at the hearing. But the hearing officer never told her of the need to submit additional evidence concerning his asthma diagnosis. He also simply ignored her expressions of confusion—along with her pleas for clarification—with respect to the proof necessary to corroborate his sleep disorder. Id. at *9-12.

In Craig v. Shinseki, the court vacated the denial of benefits to a veteran whose Board hearing officer actively discouraged him from introducing medical evidence to substantiate his claims. No. 08-2636. 2010 U.S. App. Vet. Claims LEXIS 2094, at *1-5 (Nov. 15, 2010). The lack of such evidence had led the Board to deny his request for benefits. Id.

In Mitchell v. Shinseki, the court vacated a decision against a Korean War veteran who had suffered long-term damage to his feet from standing hours of guard duty in the snow. No. 08-3940, 2010 U.S. App. Vet. Claims LEXIS 1224, at *1-2, 10 (July 2, 2010). His case involved a complex question of disability law relating to the effective date applicable to his benefits claim. Id. at *7-8. Yet the Board official conducting his hearing utterly failed to explain the issue or identify what evidence the veteran could submit to prove his claim. Id. at *8. And the veteran himself spoke a grand total of 37 words at the hearing. Id.

In Neidert v. West, the court vacated a Board decision denying benefits to an Army veteran who fell and suffered an injury at home after being released from a VA hospital a mere 24 hours after back surgery for “intermittent paralysis” of his legs. No. 99-1012, 2000 U.S. App. Vet.

25

Claims LEXIS 107, at *2-3 (Feb. 9, 2000). The veteran testified that his private physician had told him that the early discharge was improper and that a VA nurse had expressly questioned the discharge. Id. at *3-4. But the hearing officer failed to suggest that he submit additional evidence to corroborate this testimony, and the Board subsequently denied his claim for lack of such evidence. Id.

These cases—and others like them—establish the important role that

§ 3.103’s due process rights played in helping veterans obtain disability benefits.

These rights were essential to ensuring that veterans appearing before the Board

received a fair and just resolution of their claims.

C. The New Rule Depriving Veterans Of § 3.103 Rights

As of the beginning of August 2011, § 3.103’s due process rights

unambiguously protected veterans appearing before the Board.13 The VA upended

this practice on August 23, when it suddenly announced a new rule declaring that

§ 3.103’s due process rights would no longer apply to Board hearings. 2011 Rule,

76 Fed. Reg. at 52,572. The announcement came without any prior notice or

opportunity for public comment on the rule. And it had the immediate effect of

rescinding important protections that veterans had enjoyed for decades.

To carry out its dramatic reversal of policy, the new rule made four changes

to Parts 3 and 20 of the regulatory scheme:

13 The versions of § 3.103 and Part 20, Appendix A of the VA regulations

in effect at the beginning of August 2011 appear in the Addendum at ADD-8 and ADD-38.

26

It revised the then-final sentence of § 3.103(a) to declare that the provisions of § 3.103 governing hearings “apply only to hearings conducted before the VA office having original jurisdiction over the claim.” It also added a new sentence asserting that “Hearings before the Board of Veterans’ Appeals are governed by part 20 of this Chapter.” Id. at 52,574.

It revised the first sentence of § 3.103(c)(1), deleting the phrase “subject to the limitations described in § 20.1304 of this chapter with respect to hearings in claims which have been certified to the Board of Veterans Appeals for appellate review.” Id. at 52,574.

It revised § 20.706 to declare that the presiding Member in Board hearings “is not bound by the procedures described in § 3.103(c) of this chapter, as those procedures only apply to hearings before the [RO].” Id. at 52,575.

It revised Appendix A to Part 20 of the VA regulations, deleting both (1) the cross-reference from § 20.1 to § 3.103(a), and (2) the cross-reference from § 20.1304 to § 3.103(c). Id.

The rule announced that these changes would take effect immediately. Id. at

52,572.14

The VA claimed that the rule was exempt from the APA’s notice-and-

comment requirements under 5 U.S.C. § 553(b)(A) because it is merely a

“procedural rule[].” Id. at 52,573. It asserted that the new rule makes no

“substantive change” to the VA’s disability benefits system and that it “does not

create new procedure.” Id. On the contrary, the VA maintained, its new rule

14 In addition to these amendments, the rule also changed § 3.103(c)(1)’s

references to “original determinative authority” to “VA office having original jurisdiction.” 2011 Rule, 76 Fed. Reg. at 52,573. This change appears to have been made to promote consistency, see id., and not because it had any effect on § 3.103’s application to Board hearings.

27

“merely clarifies current procedures for obtaining and conducting a hearing on a

claim for VA benefits” before the RO or before the Board. Id. (emphasis added).

The VA asserted that the need “to clarify existing hearing practices and

procedures” in this way arose from the Veterans Court’s recent decision in Bryant

v. Shinseki, 23 Vet. App. 488 (2010). 2011 Rule, 76 Fed. Reg. at 52,573. Bryant

had invoked Douglas in the course of applying § 3.103(c)(2)’s procedural rights to

a veteran’s Board hearing. See Bryant, 23 Vet. App. at 494. The VA’s

explanation of the new rule indicated its disagreement with Bryant. The VA

essentially claimed that it had overruled Douglas by regulation in May 1993—

nearly two decades earlier—by amending § 20.705 to require that all Board

hearings to be conducted by Board personnel. 2011 Rule, 76 Fed. Reg. at 52,573.

The VA argued that these May 1993 changes “reflected [its] intent to clearly

distinguish hearings before [the ROs] from hearings before the Board, including

the duties of the respective VA personnel conducting the hearing.” Id. It then

asserted that “[a]s a result of [the May 1993] changes, it has become standard VA

practice and procedure that hearings before [the ROs] are governed by § 3.103 and

hearings before the Board are governed by relevant provisions in part 20.” Id.

(emphasis added). The VA declared that the 2010 Bryant decision “brought to

light that the pertinent regulations do not clearly reflect VA’s intent” to deny

28

veterans the protections of § 3.103 at Board hearings. Id. And it concluded that

the new rule was necessary to clarify that intent. Id.

NOVA filed its petition for review of the new rule in this Court on

September 9, 2011. It now challenges the rule for violating the APA.

SUMMARY OF ARGUMENT

The VA’s new rule is invalid under the APA—and this Court should

therefore set it aside—for two independent reasons.

First, the VA promulgated the rule without following the mandatory notice-

and-comment requirements set forth in 5 U.S.C. § 553. These requirements apply

to all “substantive” rules—that is, to all rules that “effect a change in existing law

or policy or … affect individual rights and obligations.” Coalition for Common

Sense in Gov’t Procurement v. Sec’y of Veterans Affairs, 464 F.3d 1306, 1317

(Fed. Cir. 2006) (internal quotation marks omitted). In Military Order of the

Purple Heart v. Sec’y of Veterans Affairs, this Court determined that VA rules

abrogating § 3.103’s procedural rights satisfy this definition. See 580 F.3d 1293

(Fed. Cir. 2009). Because the new rule undeniably deprives veterans of their

§ 3.103 rights in Board hearings, it is a “substantive” rule subject to notice-and-

comment under the APA.

Even apart from this Court’s binding decision in Purple Heart, the VA’s

new rule independently qualifies as a “substantive” rule for several reasons. The

29

rule changes existing law by depriving veterans of the due process rights they have

long enjoyed under § 3.103 and Douglas. It also affects the substantive rights of

veterans by making it harder for them to obtain benefits to which they are entitled

by law. Finally, it revises the VA’s longstanding policy of assisting veterans to

develop and present their claims, even in hearings before the Board. Each of these

factors renders the new rule a “substantive” rule for notice-and-comment purposes.

Second, the VA’s written explanation for the new rule contained significant

errors of fact and logic, and the rule is therefore arbitrary and capricious under 5

U.S.C. § 706(2)(A). The VA denied that the rule made any change to existing

policy, asserting that it has been standard practice to apply § 3.103 only to hearings

before the RO—and not to Board hearings—as a result of regulatory amendments

enacted in 1993. But the historical record proves otherwise: Both the VA and the

Veterans Court have consistently applied § 3.103 to Board hearings at least since

that Court’s 1992 decision in Douglas. The VA’s entire justification for the rule

thus rests on a faulty premise. Moreover, the VA never considered the harmful

impact the new rule would have on veterans. Each of these failings renders the

rule arbitrary and capricious under Supreme Court precedent. See, e.g., Motor

Vehicles Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983);

FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1811 (2009).

30

In short, the VA’s new rule is both procedurally and substantively invalid

under the APA. This Court should set it aside.

ARGUMENT

I. THE VA’S NEW RULE WAS NOT SUBJECTED TO NOTICE AND COMMENT AND IS INVALID UNDER THE APA

Whether the VA’s new rule is procedurally valid turns on whether it is a

“substantive” rule for purposes of the APA, 5 U.S.C. § 553. If so, the VA’s failure

to comply with § 553’s notice-and-comment procedures was unlawful—and this

Court must vacate the rule. See 5 U.S.C. § 706(2)(D).

The VA’s rule is substantive. It strips veterans of core due process rights,

makes it harder for them to obtain hard-earned benefits, overrules two decades of

cases stretching back to Douglas, and upends the VA’s longstanding policy of

assisting veterans in Board hearings. Indeed, this Court has already recognized

that regulations depriving veterans of their established § 3.103 rights are

substantive rules under § 553. See Purple Heart, 580 F.3d at 1296-98. This Court

should invalidate the VA’s new rule and make clear—yet again—that the VA must

comply with the APA when promulgating substantive regulations.15

15 See Purple Heart, 580 F.3d at 1296-98 (invalidating VA rule for failure

to comply with § 553); Coalition for Common Sense, 464 F.3d at 1318-19 (same).

31

A. Substantive Rules Must Satisfy The APA’s Notice-And-Comment Requirements

Agency actions taken “without observance of procedure required by law”

are invalid under the APA and must be vacated. 5 U.S.C. § 706(2)(D); Coalition

for Common Sense, 464 F.3d at 1318-19. Such “procedure required by law”

includes the notice-and-comment requirements set forth in 5 U.S.C. § 553. Section

553 instructs agencies to publish notice of a proposed rule in the Federal Register.

5 U.S.C. § 553(b). Agencies must also provide “interested persons an opportunity

to participate … through submission of written data, views, or arguments.” Id.

§ 553(c).

The APA’s notice-and-comment procedures apply “only to so-called

‘legislative’ or ‘substantive’ rules; they do not apply to ‘interpretative rules,

general statements of policy, or rules of agency organization, procedure, or

practice.’” Lincoln v. Vigil, 508 U.S. 182, 195-96 (1993) (quoting § 553(b)).16

“Substantive” rules are those that “effect a change in existing law or policy

or … affect individual rights and obligations.” Coalition for Common Sense, 464

F.3d at 1317.17 Such rules have the “force and effect of law” and are binding “on

16 Section 553(a)(2) contains a separate exception to the notice-and-

comment requirements for matters “relating to … benefits,” but Congress has overridden that exception for VA rules, see 38 U.S.C. § 501(d).

17 See also, e.g., Chrysler Corp. v. Brown, 441 U.S. 281, 302 (1979); Guerra v. Shinseki, 642 F.3d 1046, 1051 (Fed. Cir. 2011); Splane v. West, 216 F.3d 1058, 1063 (Fed. Cir. 2000); Paralyzed Veterans of Am. v. West, 138 F.3d 1434,

32

tribunals outside the agency,” such as the Veterans Court or this Court. Splane v.

West, 216 F.3d 1058, 1064 (Fed. Cir. 2000). A rule that repeals a substantive rule

is itself a substantive rule. Tunik v. MSPB, 407 F.3d 1326, 1343 (Fed. Cir. 2005).

Procedural rules exempt from § 553’s notice-and-comment requirements

address only matters of internal agency “housekeeping.” Chrysler Corp., 441 U.S.

at 310; see also Schism v. United States, 316 F.3d 1259, 1281 (Fed. Cir. 2002)

(“day-to-day internal operations”). In contrast to substantive rules, they do not

affect individual rights. Chrysler Corp., 441 U.S. at 302, 310.

Interpretive rules, meanwhile, are “issued by an agency to advise the public

of the agency’s construction of the statutes and rules which it administers.”

Shalala v. Guernsey Mem’l Hosp., 514 U.S. 87, 99 (1995) (citation and internal

quotation marks omitted). Such rules neither make new law nor modify existing

law. Guerra v. Shinseki, 642 F.3d 1046, 1051 (Fed. Cir. 2011).

The purpose of the APA’s notice-and-comment requirements is to “assure

fairness and mature consideration of rules of general application.” Chrysler Corp.,

441 U.S. at 303 (citation and internal quotation marks omitted). As Congress has

recognized, these goals are especially important when it comes to rules that will

harm our Nation’s veterans. See 38 U.S.C. § 501(d) (Supp. III 1992) (requiring

1436 (Fed. Cir. 1998); Animal Legal Def. Fund v. Quigg, 932 F.2d 920, 927 (Fed. Cir. 1991); NI Indus., Inc. v. United States, 841 F.2d 1104, 1108 (Fed. Cir. 1988).

33

VA rules to comply with § 553, despite otherwise applicable exemption for rules

relating to benefits).

B. The VA’s New Rule Is Substantive

The new rule is a substantive rule subject to the APA’s notice-and-comment

requirements. This conclusion follows both from this Court’s holding in Purple

Heart and from its definition of a substantive rule as one that that “effect[s] a

change in existing law or policy or … affect[s] individual rights and obligations.”

Coalition for Common Sense, 464 F.3d at 1317. Because the VA failed to comply

with the APA’s mandatory procedures, this Court should vacate the rule. See 5

U.S.C. § 706(2)(D).

1. Purple Heart Establishes That Rules Curtailing § 3.103’s Due Process Rights Are Substantive

In Purple Heart, this Court made clear that rules depriving veterans of

§ 3.103’s due process rights are substantive rules subject to the APA’s procedural

requirements. 580 F.3d at 1296-98. The VA rule at issue here eliminates § 3.103’s

protections in hearings before the Board. It is therefore a substantive rule.

Purple Heart involved an internal VA directive that—like the VA rule now

under review—deprived veterans of their § 3.103 rights. The directive modified

the adjudicatory process by requiring the RO to submit any decision granting

certain large or retroactive claims to the VA’s Compensation & Pension Service

(“C&P”). Id. The C&P would review the award and decide—independently of the

34

RO—whether it should be granted and in what amount. Id. The directive

emphasized, however, that the veteran would not be informed of the C&P review,

would not have the right to a hearing before any C&P decisionmaker, and would

not be told if the C&P decided to reduce the award. Id.

Two veterans organizations challenged the VA’s directive as procedurally

improper for failure to comply with the APA’s notice-and-comment requirements.

They asserted that the directive was a substantive rule subject to those

requirements because (1) the new procedures deprived veterans of their right to

obtain a fair hearing governed by § 3.103(c)(2), and (2) the new procedures made

it less likely that veterans would obtain their hard-earned benefits. Id. at 1295;

Brief of Appellant-Petitioner, Purple Heart, 2008 U.S. Fed. Cir. Briefs LEXIS

559, at *26-29 (July 7, 2008). In response, the Government argued—as it does in

this case—that the VA directive was not a substantive rule, but rather a mere

procedural rule exempt from the APA’s notice-and-comment requirements. Brief

of Appellee-Respondent, Purple Heart, 2009 U.S. Fed. Cir. Briefs LEXIS 167, at

*22-35 (Feb. 5, 2009).

This Court sided with the veterans groups. It agreed that the directive

“affects the veteran’s substantive as well as procedural rights,” and it concluded

that the directive therefore satisfied the Court’s definition of a substantive rule—

one that constitutes “‘a change in existing law or policy which affects individual

35

rights and obligations.’” Purple Heart, 580 F.3d at 1296 (emphasis added)

(quoting definition of “substantive” rule from Animal Legal Defense Fund v.

Quigg, 932 F.2d 920, 927 (Fed. Cir. 1991)).

The Court made clear that the “individual rights” affected by the directive

included the rights protected by § 3.103(c)(2)—among them, the rights to

participate personally in a hearing before the decisionmaker, to respond to VA

concerns about the evidence, and to submit additional evidence in response to such

concerns. Purple Heart, 580 F.3d at 1296-97. Because the directive violated these

rights, it amounted to a substantive rule. And because the rule “was not

implemented in accordance with the [APA],” this Court struck it down. Id. at

1297-98.18

The Court should do the same thing here. Purple Heart establishes that the

rights protected by § 3.103(c)(2) are “individual rights” for the purposes of

determining whether a rule must satisfy the APA’s notice-and-comment

procedures. See 580 F.3d at 1296-98. By declaring that § 3.103(c)(2) no longer

applies in Board hearings, the VA rule at issue here “affects” precisely the same

18 See also Brief of Respondent at 31-32, Preminger v. Sec’y of Veterans

Affairs, 632 F.3d 1345 (Fed. Cir. 2011) (No. 2009-7044), 2009 WL 4863469 (recognizing that Purple Heart set aside VA directive because it “affected the[] existing procedural rights [set forth in § 3.103] and was not implemented in compliance with the APA”); Reply Brief of Respondent-Appellant at 11, MacKlem v. Shinseki, No. 2011-7034 (Fed. Cir. July 5, 2011), 2011 WL 3288102 (noting that Purple Heart invalidated VA directive because it was inconsistent with § 3.103(c) and was not published for notice and comment).

36

“individual rights” at issue in Purple Heart. Just like the VA directive in that case,

the rule here is a substantive rule promulgated in violation of 5 U.S.C. § 553. It

too must fall.

2. The New Rule Changes Existing Law And Policy And Deprives Veterans Of Individual Rights

A “substantive” rule is one that “effect[s] a change in existing law or policy

… or affect[s] individual rights.” Coalition for Common Sense, 464 F.3d at 1317.

The VA rule at issue here undeniably changes both existing law and the VA’s

policy of helping veterans prove their claims throughout the adjudicatory process.

Moreover, it does so in a way that affects the rights of veterans—including both

their procedural rights (to due process in Board hearings) and their substantive

rights (to disability benefits). For each of these independent reasons, the new rule

is “substantive” and thus subject to notice and comment under the APA.

First, the VA’s new rule changes existing law. It amends—and in fact

repudiates—various VA regulatory provisions that had previously made § 3.103’s

protections applicable to Board hearings.19 In doing so, the rule overrides the long

19 More specifically, the rule amends three provisions that had previously

made clear that § 3.103 applied to Board hearings: (1) § 3.103(a), which had previously described the obligations of VA as a whole and noted that § 3.103’s provisions apply to “all … decisions” on claims for benefits, without making any exception for the Board or its decisions; (2) § 3.103(c)(1), which had explicitly cross-referenced the Board’s Rules of Practice (at 38 C.F.R. § 20.1304); and (3) Appendix A to Part 20, which had included multiple cross-references linking the Board’s Rules of Practice to § 3.103 and its due process protections.

37

line of Veterans Court cases stretching back to Douglas. Before the VA

promulgated the new rule, there was no question that § 3.103 and Douglas were

binding on the Board.20 Now—after the new rule—§ 3.103’s rights no longer

apply. See, e.g., Perkins v. Shinseki, No. 10-2879, 2011 U.S. App. Vet. Claims

LEXIS 2406, at *9-10 (Nov. 1, 2011) (relying on VA’s new rule to reject veteran’s

claim that Board violated § 3.103). The VA’s change of existing law renders the

rule substantive under the APA.21

Second, the change in law “affect[s]” the procedural rights of individual

veterans appearing before the Board. Coalition for Common Sense, 464 F.3d at

1317. The whole purpose of the rule is to deny such veterans the “Procedural due

20 See, e.g., 38 U.S.C. § 7104(c); 38 C.F.R. § 19.5; Roberts, 647 F.3d at

1342-43; Bryant, 23 Vet. App. at 494; BVA Docket No. 07-17 722 (Mar. 6, 2009); see also supra at 13-25.

21 Because the new rule changes existing law, it is not an “interpretive” rule exempt from the APA’s notice-and-comment procedures under 5 U.S.C. § 553(b)(A). Such rules do not “make new law or modify existing law,” Guerra, 642 F.3d at 1051 (internal quotation marks omitted), but rather merely “advise the public of the agency’s construction of the statutes and rules which it administers,” Shalala, 514 U.S. at 99 (internal quotation marks omitted). Notably, the VA justified its non-compliance with the notice-and-comment procedures by relying only on 5 U.S.C. § 553(b)(A)’s exception for “procedural rules,” and not on its exception for “interpretative” rules. See 2011 Rule, 76 Fed. Reg. at 52,573. Elsewhere, the Government has implicitly acknowledged that a VA rule amending § 3.103’s due process rights would be a substantive rule. See Brief of Appellee at 33-36, Morton v. Gober, 243 F.3d 557 (Fed. Cir. 2000) (No. 99-7191), 2000 WL 34003997 (arguing that VA manual provision was not substantive because it made no change to § 3.103); Brief of Respondent-Appellee at 30, Black v. West, 185 F.3d 884 (Fed. Cir. 1999) (No. 98-7036), 1998 WL 34098714 (same).

38

process and appellate rights” set forth in § 3.103. 2011 Rule, 76 Fed. Reg. at

52,573, 52,574 (emphasis added). These include the rights in § 3.103(c)(2) to have

the hearing officer (1) “fully explain the issues still outstanding that are relevant

and material to substantiating the [veteran’s] claim,” and (2) “suggest that a

claimant submit evidence on an issue material to substantiating the claim when the

record is missing any evidence on that issue or when the testimony at the hearing

raises an issue for which there is no evidence in the record.” Bryant, 23 Vet. App.

at 496. The new rule affects these individual due process rights in a

straightforward and definitive way: It declares that they no longer apply to Board

hearings.

The fact that the new rule impacts procedural rights does not make the rule

any less substantive. Procedural rights are a subset of “individual rights,” and

whether a rule is substantive turns on whether it “affects individual rights.”

Coalition for Common Sense, 464 F.3d at 1317. In Purple Heart, this Court held

that an agency directive making a “procedural change” affecting “procedural

rights” was nonetheless a substantive rule subject to the APA’s notice-and-

comment procedures. 580 F.3d at 1296-98. And in other cases it has frequently

recognized that rules establishing (or eliminating) procedural safeguards for

39

individuals are substantive rules for APA purposes.22 Because the VA’s new rule

eliminates veterans’ § 3.103(c)(2) “Procedural due process and appellate rights” in

Board hearings, it is a substantive rule requiring notice and comment.

The VA is therefore wrong to suggest that its rule is a “procedural” rule—

that is, a “rule[] of agency organization, procedure, or practice”—exempt from

notice and comment under § 553(b). This exception applies to purely internal

agency “housekeeping” rules. Chrysler Corp., 441 U.S. at 310. It does not cover

substantive rules, see Lincoln, 508 U.S. at 195-96, and especially not substantive

rules granting members of the public legal “rights”—expressly identified as such

by the agency—that they may enforce against the agency in federal court, see, e.g.,

Coalition for Common Sense, 464 F.3d at 1317.23

22 See, e.g., Tunik, 407 F.3d at 1344-45 (rule granting an administrative law

judge the procedural right to bring an action for constructive removal to the Merit Service Protection Board is “substantive”); Hamlet v. United States, 63 F.3d 1097, 1105 n.6 (Fed. Cir. 1995) (rules establishing “procedural requisites” or “procedural requirements” for removing of agency employees are “substantive”); see also Coalition for Common Sense, 464 F.3d at 1317-18 (rule establishing a new procedural “system” for payment of refunds by drug manufacturers to the Government is “substantive”).

23 Even if the VA’s new rule were procedural, it would still be subject to the APA notice-and-comment procedures because it substantially changes—and thus is inconsistent with—the prior version of the VA’s regulations. As the Supreme Court has declared, notice-and-comment APA rulemaking is required when an agency “adopt[s] a new position inconsistent with any of the [agency’s] existing regulations.” Shalala, 514 U.S. at 100. Indeed, “once a regulation is adopted by notice-and-comment rulemaking …, its text may only be changed in the same manner.” First Nat’l Bank of Chicago v. Standard Bank & Trust, 172

40

Third, the VA’s new rule also affects the substantive rights of veterans to

financial assistance. See Cushman v. Shinseki, 576 F.3d 1290, 1297-98 (Fed. Cir.

2009) (noting veterans’ constitutionally protected property interest in disability

benefits mandated by law). By ending § 3.103’s application to Board hearings, the

rule makes it harder for veterans to obtain benefits. As this Court concluded in

Purple Heart, an agency action denying veterans the procedural protections of

§ 3.103 “affects the veteran’s substantive … rights,” and thus constitutes “‘a

change in existing law or policy which affects individual rights and obligations.’”

Purple Heart, 580 F.3d at 1296 (quoting Quigg, 932 F.2d at 927).

Logic and experience confirm that eliminating § 3.103’s application to

Board hearings will harm veterans’ substantive rights. The whole purpose of

§ 3.103’s due process rights is to help veterans obtain the benefits they are entitled

to receive under the law. Unless these rights are entirely superfluous—a claim the

VA has never made—it is inevitable that eliminating these rights will lead the

Board to deny meritorious claims that it would otherwise grant.

The realities of the veterans disability system make clear how important

§ 3.103’s procedural protections actually are in practice. As noted above, the

benefits claims system is highly complex, and veterans often need help in

F.3d 472, 479 (7th Cir. 1999) (citing Homemakers North Shore, Inc. v. Bowen, 832 F.2d 408, 412-13 (7th Cir. 1987)).

41

“find[ing] their way through [its] labyrinthine corridors.” Comer, 552 F.3d at

1369. This is especially true for the great many veterans who suffer from cognitive

or psychological disabilities stemming from their service. See supra at 11.

The VA’s adjudicatory process is also notoriously error-prone. The fact that

70 percent of RO decisions appealed to the Board—and 80 percent of Board

decisions appealed to the Veterans Court—are reversed in whole or in part

suggests that the deck is stacked against claimants seeking benefits. See supra at

12. And the VA affirmatively exacerbates the risk of such error, by adopting

aggressive litigating positions—against veterans—that the Government itself

admits are typically “substantially unjustified” under the law. Supra at 12-13; Oral

Arg. Tr., Astrue, at 51-52. And yet despite the complexities and shortcomings of

the process, the vast majority of veterans participate in Board proceedings without

any help from attorneys. Supra at 9.

In this real-world context, § 3.103 plays a vital role in protecting veterans’

substantive rights. Section 3.103 ensures that Board hearing officers will provide

much-needed assistance by explaining the issues and suggesting that veterans

present specific evidence that they “may have overlooked” and that “would be of

advantage to [their] position.” 38 C.F.R. § 3.103(c)(2). The historical evidence

proves how important this right actually is in practice. In the 12 months preceding

the VA’s new rule, the Veterans Court required the Board to reconsider a veteran’s

42

claim—due to a violation of the veteran’s § 3.103(c)(2) rights—no fewer than 15

times.24 And these appellate decisions involved only cases in which the veteran

filed an appeal and the Veterans Court concluded that the Board had violated

§ 3.103(c)(2). No doubt there were many instances in which the Board complied

with its obligations and thereby helped veterans vindicate their rights to benefits.

Finally, the VA’s new rule is substantive because it “effect[s] a change in

[VA] policy.” Coalition for Common Sense, 464 F.3d at 1317. Specifically, it

abandons the VA’s longstanding policy of providing affirmative assistance to

veterans at every stage in the adjudicatory process—including before the Board.

24 See McKinney v. Shinseki, No. 10-3223, 2011 U.S. App. Vet. Claims

LEXIS 1762, at *6-9 (Aug. 18, 2011) (explicit finding of prejudice); Acree v. Shinseki, No. 09-3493, 2011 U.S. App. Vet. Claims LEXIS 1093, at *8-9 (May 19, 2011) (same); Herrington v. Shinseki, No. 09-0620, 2011 U.S. App. Vet. Claims LEXIS 708, at *4-8 (Mar. 31, 2011) (same); Triplett v. Shinseki, No. 09-1609, 2011 U.S. App. Vet. Claims LEXIS 488, at *7-18 (Mar. 11, 2011) (same); Rountree v. Shinseki, No. 09-0135, 2010 U.S. App. Vet. Claims LEXIS 2119, at *6-8 (Nov. 18, 2010) (same); Quinones v. Shinseki, No. 08-3450, 2010 U.S. App. Vet. Claims LEXIS 1995, at *12-17 (Oct. 29, 2010) (same); Hicks v. Shinseki, No. 08-2872, 2010 U.S. App. Vet. Claims LEXIS 1890, at *6-10 (Oct. 18, 2010) (same); Owens v. Shinseki, No. 07-3832, 2010 U.S. App. Vet. Claims LEXIS 1697, at *4-12 (Sept. 16, 2010) (same); Crouch v. Shinseki, No. 10-1865, 2011 U.S. App. Vet. Claims LEXIS 1638, at *5-9 (Aug. 24, 2011) (implicit finding of prejudice); Dickey v. Shinseki, No. 10-0640, 2011 U.S. App. Vet. Claims LEXIS 1240, at *3-4 (June 10, 2011) (same); Frazer v. Shinseki, No. 09-4185, 2011 U.S. App. Vet. Claims LEXIS 1186, at *6-7 (May 31, 2011) (same); Lovato v. Shinseki, No. 09-4013, 2011 U.S. App. Vet. Claims LEXIS 970, at *5 (Apr. 29, 2011) (same); Cobb v. Shinseki, No. 09-1676, 2010 U.S. App. Vet. Claims LEXIS 2335, at *2-5 (Dec. 9, 2010) (same); Craig v. Shinseki, No. 08-2636, 2010 U.S. App. Vet. Claims LEXIS 2094, at *4-5 (Nov. 15, 2010) (same); Rosa v. Shinseki, No. 09-1563, 2010 U.S. App. Vet. Claims LEXIS 1684, at *2-4 (Sept. 14, 2010) (same).

43

As the Supreme Court has noted, “Congress has expressed special solicitude

for the veterans’ cause.” Shinseki v. Sanders, 129 S. Ct. 1696, 1707 (2009). The

veterans’ disability-benefits system has therefore always been “strongly and

uniquely pro-claimant.” Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998).

Proceedings have traditionally been “ex parte and nonadversarial,” Henderson v.

Shinseki, 131 S. Ct. 1197, 1200 (2011), and the system as a whole has been

“designed to function throughout with a high degree of informality and solicitude

for the claimant,” Walters v. National Ass’n of Radiation Survivors, 473 U.S. 305,

311 (1985). Most importantly, the VA has been required “to fully and

sympathetically develop the veteran’s claim to its optimum before deciding it on

the merits.” Comer, 552 F.3d at 1368. This approach has served the “[t]he

government’s interest in veterans cases,” which is “not that it shall win, but rather

that justice shall be done, that all veterans so entitled receive the benefits due to

them.” Id. at 1369.

Historically, § 3.103 advanced this policy of assisting claimants in VA

adjudicatory proceedings, including before the Board. It did so by obliging the VA

(1) “to assist a claimant in developing the facts pertinent to the claim,” (2) “to

render a decision which grants every benefit that can be supported in law,” (3) “to

explain fully the issues,” and (4) to “suggest the submission of evidence which the

claimant may have overlooked and which would be of advantage to the claimant’s

44

position.” 38 C.F.R. § 3.103(a), (c)(2). But these protections no longer exist. The

VA’s new rule eliminates § 3.103’s application to Board hearings. It thereby

eviscerates the VA’s longstanding policy of assisting veterans on appeal.

The bottom line is that the VA’s new rule dramatically reshapes the legal

and policy framework that applies to hearings before the Board. It deprives

veterans of their established due process rights and significantly impairs their

ability to obtain hard-earned benefits. For each of the independent reasons noted

above, it is a substantive rule under Purple Heart and this Court’s other § 553

decisions. The VA erred by failing to promulgate the rule in accordance with the

APA’s procedural requirements. This Court should now set it aside.

II. THE VA’S NEW RULE IS ARBITRARY, CAPRICIOUS, AND INVALID UNDER THE APA

In addition to its procedural flaws, the VA’s new rule is also arbitrary and

capricious. The VA’s written justification for the rule distorted its regulatory

history, ignored the fact that the rule will drastically change longstanding VA

policy, and failed to consider its impact on veterans. This Court should strike

down the rule as a violation of the APA. See 5 U.S.C. § 706(2)(A).

A. The APA Requires Reasoned Decisionmaking

As the Supreme Court has explained, the APA establishes a scheme of

“reasoned decisionmaking.” State Farm, 463 U.S. at 52; see also Judulang v.

Holder, No. 10-694, 2011 U.S. LEXIS 9018, at *20 (U.S. Dec. 12, 2011)

45

(requiring “‘reasoned explanation’” for decisions (citation omitted)). Agency

action must be “logical and rational,” and courts must therefore set aside

regulations that “are not supported by the reasons that the agencies adduce.”

Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 374 (1998). The APA

expresses this requirement by instructing courts to invalidate agency action that is

“arbitrary” and “capricious.” 5 U.S.C. § 706(2)(A).

A rule is “arbitrary and capricious” if the agency’s explanation for its action

“has … entirely failed to consider an important aspect of the problem, offered an

explanation for its decision that runs counter to the evidence before the agency, or

is so implausible that it could not be ascribed to a difference in view or the product

of agency expertise.” State Farm, 463 U.S. at 43. Agencies may change their

policies over time, but “the requirement that an agency provide reasoned

explanation for its action would ordinarily demand that it display awareness that it

is changing position.” Fox, 129 S. Ct. at 1811; see also SKF USA Inc. v. United

States, 630 F.3d 1365, 1373 (Fed. Cir. 2011) (“When an agency changes its

practice, it is obligated to provide an adequate explanation for the change.”).

Arbitrary-and-capricious review under the APA places an important check

on Executive Branch agencies when they exercise power delegated by Congress.

See Judulang, 2011 U.S. LEXIS 9018, at *20 (despite agency’s expertise, “courts

retain a role, and an important one, in ensuring that agencies have engaged in

46

reasoned decisionmaking”). The need for such checks is evident in cases like this

one, where the VA justifies its new rule by misstating key facts and turning a blind

eye to the veterans it is duty-bound to protect.

B. The VA Distorted § 3.103’s History, Ignored The New Rule’s Reversal Of Policy, And Disregarded Its Impact On Veterans

The VA justified its new rule by ignoring its drastic departure from

longstanding agency practice and disregarding the severe harm it will inflict on

veterans. See supra at 13-25; 2011 Rule, 76 Fed. Reg. at 52,573. The VA’s

explanation does not withstand scrutiny, and this Court should set the rule aside

under § 706(2)(A).

The VA’s explanation for its new rule asserted—without any evidence in the

record—that the rule “merely clarifies current procedures” and conforms the VA

regulations to the “standard VA practice and procedure” that resulted from the

VA’s amendment of § 20.705 in May 1993. 2011 Rule, 76 Fed. Reg. at 52,573.

According to the VA, the new rule’s only purpose is to reflect the VA’s

longstanding intent—traceable to the May 1993 regulatory change—“to clearly

distinguish hearings before [the ROs] from hearings before the Board” with respect

to the rights of claimants. Id. The VA further asserted that the Veterans Court’s

2010 decision in Bryant v. Shinseki “brought to light” the fact that the regulations

did not clearly reflect the VA’s intent in this regard. Id.

The VA’s justification of the rule is deeply flawed, in at least four ways.

47

First, the May 1993 amendment of § 20.705 had nothing to do with

§ 3.103’s application to Board hearings. That change simply made clear that ROs

would no longer conduct hearings as agents for the Board. The May 1993 rule did

not mention § 3.103, did not purport to overturn the Veterans Court’s then-recent

decision in Douglas, and left untouched the various regulatory provisions Douglas

had cited to establish that § 3.103 did apply to Board hearings. Moreover, the VA

adopted this rule at almost exactly the same time that it made other regulatory

changes—including to § 3.103 itself—that confirmed § 3.103’s application to such

hearings. See supra at 19-20. And there is no evidence in the record that the VA

or the Veterans Court ever suggested, prior to August 2011, that the May 1993

changes had any impact on § 3.103’s application to the Board. The VA’s

argument that these changes somehow stripped veterans of their § 3.103 rights

therefore makes no sense.

Second, the VA was simply wrong to claim that “standard VA practice and

procedure” had been to limit § 3.103’s application to hearings before the ROs. See

2011 Rule, 76 Fed. Reg. at 52,573 (asserting also that the new rule “merely

clarifies current procedures,” “does not create new procedure,” and makes “no

substantive change”). The reality is that between the Veterans Court’s 1993

decision in Douglas and the promulgation of its new rule in August 2011, the VA

48

did apply § 3.103 to Board hearings. As explained in greater detail above, this is

evident from:

The text of the various VA regulations, which until the August 2011 rule required Board hearing officers to respect the “Procedural due process and appellate rights” set forth in § 3.103(a) and (c), see supra at 13-20;

The long line of Veterans Court decisions, beginning with Douglas and stretching forward for nearly two decades, consistently recognizing that § 3.103’s rights apply to Board hearings, see supra at 17-18, 21-25;

The many Board decisions expressly applying § 3.103’s due process protections in Board hearings throughout this same period, see supra at 22;

The VA’s repeated admission that § 3.103 applies to Board hearings in numerous briefs filed with this Court and the Veterans Court and at least one statement in the Federal Register, see supra at 21-22; and

The VA’s internal administrative manuals, which likewise acknowledged that § 3.103’s due process rights apply to all hearings (including Board hearings), see supra at 21-22.

The VA’s assertion that its new rule tracks existing practice is thus completely at

odds with the facts.

Third, the VA’s discussion of Bryant is similarly confused. The VA treated

Bryant as if its statement that § 3.103 applies to Board hearings was somehow

surprising or unusual. See 2011 Rule, 76 Fed. Reg. at 52,573 (pointing to Bryant

as reason that “clarifying changes are necessary” and asserting that “Bryant

brought to light that the pertinent regulations do not clearly reflect VA’s intent”).

But in fact there was no surprise: Bryant’s statement on this issue was entirely

consistent with the line of Veterans Court decisions stretching back to Douglas.

49

More to the point, Bryant’s statement reflected the VA’s own position—

which the VA advanced in both its brief and at oral argument in that very case—

that § 3.103 does apply to Board hearings. See Brief of Appellee at 15, 17-19,

Bryant v. Shinseki, 23 Vet. App. 488 (2010) (No. 08-4080) (explaining that

§ 3.103(c)(2) requires a Board hearing officer to suggest that claimants submit

additional evidence under certain circumstances); Tr. of Oral Arg., Bryant, at

24:45-25:00, 28:05-33, 33:40-34:08, 34:50-35:10 (2010) (same). Both parties in

Bryant actually agreed on this point; their only dispute concerned the scope of

§ 3.103(c)(2)’s protections. Bryant, 23 Vet. App. at 491-92. The VA’s suggestion

that Bryant somehow created or revealed confusion over § 3.103’s application to

Board hearings is thus entirely unpersuasive.

Fourth, the VA’s asserted policy goal—“to clearly distinguish hearings

before [ROs] from hearings before the Board,” 2011 Rule, 76 Fed. Reg. at

52,573—is itself entirely arbitrary. The VA never explained why it wanted to

distinguish between both types of hearings, and it offered no reason whatsoever to

grant veterans fewer due process rights before the Board than before the RO. See,

e.g., Judulang, 2011 U.S. LEXIS 9018, at *24, *25, *29 (“agency action must be

based on non-arbitrary, ‘relevant factors’” tied to purposes of underlying

50

government function, and cannot be based on statutory distinctions that are

“irrelevant” or “meaningless” to the action being taken (citation omitted)).25

Two conclusions follow from these various flaws in the VA’s explanation.

The first is that the VA’s decision to promulgate the new rule was neither

“reasoned” nor “logical and rational,” as it rested on an “implausible” account of

the regulatory history that “runs counter to the evidence before the agency,” State

Farm, 463 U.S. at 43; Allentown Mack, 522 U.S. at 374. The second is that—

judging by its own flawed explanation for the change in rule—the VA was

completely unaware that the new rule would effect a drastic reversal of the VA’s

longstanding policy of applying § 3.103 to Board hearings. Each of these

conclusions independently renders the rule arbitrary and capricious under the

APA.26

25 It is too late for the VA to supply an alternative explanation at this late

stage, as this Court “must judge the propriety of such action solely by the grounds invoked by the agency.” SEC v. Chenery Corp., 332 U.S. 194, 196 (1947); see also Bivings v. U.S. Dep’t of Agric., 225 F.3d 1331, 1335 (Fed Cir. 2000) (a court “cannot affirm the agency on a theory that, although supported by the record, was not the basis for the agency’s ruling”).

26 See, e.g., State Farm, 463 U.S. at 42-43 (requiring agency to “articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made” (internal quotation marks omitted)); Allentown Mack, 522 U.S. at 374 (noting that regulations are invalid when they are “not supported by the reasons that the agencies adduce”); Fox, 129 S. Ct. at 1811 (requiring agency to “display awareness that it is changing position”); SKF, 630 F.3d at 1373 (obliging agency “to provide an adequate explanation for [a] change”).

51

Finally—and apart from the problems noted above—the new rule is invalid

for yet another reason: The VA completely ignored its effect on veterans. By

incorrectly declaring that the rule was consistent with existing practice, the VA

avoided addressing the ways in which the rule would exacerbate existing

deficiencies in the claims system and ultimately harm veterans. Had the VA

conducted the necessary analysis, it would have recognized that the new rule will

inevitably make it much harder for many veterans to obtain the benefits they have

earned. See supra at 36-44. Because the VA “entirely failed to consider an

important aspect of the problem,” the rule must be set aside. State Farm, 463 U.S.

at 43; see also SKF, 630 F.3d at 1375.

CONCLUSION

The VA rule at issue in this case is invalid under the APA. NOVA asks this

Court to vacate the rule pursuant to 5 U.S.C. § 706(2), with instructions that any

future effort to deprive veterans of their § 3.103 rights in Board hearings must

satisfy the notice-and-comment requirements of 5 U.S.C. § 553.

ADDENDUM

ADDENDUM

TABLE OF CONTENTS Page

STATUTES

5 U.S.C. § 553..................................................................................................ADD-1 

5 U.S.C. § 706..................................................................................................ADD-2

REGULATIONS

38 C.F.R. § 3.103 

July 1, 1973............................................................................................ADD-3 July 1, 1993............................................................................................ADD-5 July 1, 2011............................................................................................ADD-8 As of December 21, 2011 ....................................................................ADD-11 

38 C.F.R. § 19.101 (July 1, 1983)..................................................................ADD-14 

38 C.F.R. § 19.174 (July 1, 1990)..................................................................ADD-15 

38 C.F.R. § 20.1

July 1, 1993..........................................................................................ADD-17 July 1, 2011..........................................................................................ADD-18 As of December 21, 2011 ....................................................................ADD-20 

38 C.F.R. § 20.705

July 1, 1993..........................................................................................ADD-21 July 1, 2011..........................................................................................ADD-22 As of December 21, 2011 ....................................................................ADD-24 

38 C.F.R. § 20.706

July 1, 2011..........................................................................................ADD-25 As of December 21, 2011 ....................................................................ADD-26 

38 C.F.R. § 20.1304

July 1, 1993..........................................................................................ADD-27 July 1, 2011..........................................................................................ADD-30 As of December 21, 2011 ....................................................................ADD-33 

ii

Page

38 C.F.R., Appendix A to Part 20

July 1, 1993..........................................................................................ADD-35 July 1, 2011..........................................................................................ADD-38 As of December 21, 2011 ....................................................................ADD-41

REGULATORY AMENDMENTS

Due Process and Appellate Rights, 37 Fed. Reg. 14,780 (July 18, 1972) .....................................................................................ADD-47 

Appeals Regulations; Rules of Practice, 48 Fed. Reg. 6961 (Feb. 17, 1983).....................................................................................ADD-49 

Procedural Due Process, 55 Fed. Reg. 13,522 (Apr. 11, 1990).....................ADD-69 

Appeals Regulations and Rules of Practice; Request for Change in Representation, Request for Personal Hearing, or Submission of Additional Evidence Following Certification of an Appeal to the Board of Veterans Appeals, 55 Fed. Reg. 20,144 (May 15, 1990) .....ADD-77 

Appeals Regulations; Rules of Practice, 57 Fed. Reg. 4088 (Feb. 3, 1992).......................................................................................ADD-84 

Procedural Due Process and Appellate Rights, 58 Fed. Reg. 16,359 (Mar. 26, 1993) ..................................................................................ADD-127 

Rules of Practice; Hearings Before the Board on Appeal, 58 Fed. Reg. 27,934 (May 12, 1993) ......................................................................ADD-129 

Review of Benefit Claims Decisions, 66 Fed. Reg. 21,871 (May 2, 1993) ....................................................................................ADD-133 

Rules Governing Hearings Before the Agency of Original Jurisdiction and the Board of Veterans’ Appeals; Clarification, 76 Fed. Reg. 52,572 (Aug. 23, 2011)..................................................................................ADD-137

iii

Page AGENCY MATERIALS

Department of Veterans Affairs, VA Notice 96-18 (Dec. 24, 1996)...........ADD-141 

Veterans Benefits Administration, M21-1 Adjudication Procedures Manual, Change 123, Chapter 18: Appeals, § 18.23(a)(1) (Aug. 12, 1975) ...ADD-142 

Veterans Benefits Administration, M21-1 Adjudication Procedures Manual, Change 145, Chapter 18: Appeals, 18.18(a)(1) (Sept. 9, 1976) ........ADD-143 

Veterans Benefits Administration, M21-1 Adjudication Procedures Manual, Change 349, § 18.18(a) (Mar. 18, 1983).............................ADD-144

Veterans Benefits Administration, M21-1 Adjudication Procedures Manual, Change 63, Chapter 35: Hearings, § 35.01 (Oct. 12, 1994)...................................................................................ADD-145 

Veterans Benefits Administration, M21-1 Adjudication Procedures Manual, Change 85, Chapter 35: Hearings, § 35.01 (Sept. 27, 1996)..................................................................................ADD-146 

Veterans Benefits Administration, M21-1 Adjudication Procedures Manual, Change 96, Chapter 35: Hearings, § 35.01 (Aug. 27, 1997)..................................................................................ADD-147 

Veterans Benefits Administration, M21-1 Adjudication Procedures Manual, Change 136, Chapter 35: Decision Review Officers, Informal Conferences and Hearings (June 4, 2001).........................ADD-148 

TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES

§ 553. Rule making

(a) This section applies, according to the pro-visions thereof, except to the extent that thereis involved-

(1) a military or foreign affairs function ofthe United States; or

(2) a matter relating to agency managementor personnel or to public property, loans,grants, benefits, or contracts.

(b) General notice of proposed rule makingshall be published in the Federal Register, un-less persons subject thereto are named and ei-ther personally served or otherwise have actualnotice thereof in accordance with law. The no-tice shall include-

(1) a statement of the time, place, and na-ture of public rule making proceedings;

(2) reference to the legal authority underwhich the rule is proposed; and

(3) either the terms or substance of the pro-posed rule or a description of the subjects andissues involved.

Except when notice or hearing is required bystatute, this subsection does not apply-

(A) to interpretative rules, general state-ments of policy, or rules of agency organiza-tion, procedure, or practice; or

(B) when the agency for good cause finds(and incorporates the finding and a brief state-ment of reasons therefor in the rules issued)that notice and public procedure thereon areimpracticable, unnecessary, or contrary to thepublic interest.

(c) After notice required by this section, theagency shall give interested persons an oppor-tunity to participate in the rule making throughsubmission of written data, views, or argumentswith or without opportunity for oral presen-tation. After consideration of the relevant mat-ter presented, the agency shall incorporate inthe rules adopted a concise general statement oftheir basis and purpose. When rules are requiredby statute to be made on the record after oppor-tunity for an agency hearing, sections 556 and557 of this title apply instead of this subsection.

(d) The required publication or service of asubstantive rule shall be made not less than 30days before its effective date, except-

(1) a substantive rule which grants or recog-nizes an exemption or relieves a restriction;

(2) interpretative rules and statements ofpolicy; or

(3) as otherwise provided by the agency forgood cause found and published with the rule.

(e) Each agency shall give an interested personthe right to petition for the issuance, amend-ment, or repeal of a rule.

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 383.)

HISTORICAL AND REVISION NOTES

Deri Revised Statutes andvation U.S. Code Statutes at Large

.................. 5 U.S.C. 1003. June 11, 1946, ch. 324, §4, 60Stat. 238.

In subsection (a)(1), the words "or naval" are omittedas included in "military".

In subsection (b), the word "when" is substituted for"in any situation in which".

In subsection (c), the words "for oral presentation"are substituted for "to present the same orally in anymanner". The words "sections 556 and 557 of this titleapply instead of this subsection" are substituted for"the requirements of sections 1006 and 1007 of this titleshall apply in place of the provisions of this sub-section".

Standard changes are made to conform with the defi-nitions applicable and the style of this title as outlinedin the preface to the report.

CODIFICATION

Section 553 of former Title 5, Executive Departmentsand Government Officers and Employees, was trans-ferred to section 2245 of Title 7, Agriculture.

EXECUTIVE ORDER No. 12044

Ex. Ord. No. 12044, Mar. 23, 1978, 43 F.R. 12661, asamended by Ex. Ord. No. 12221, June 27, 1980, 45 F.R.44249, which related to the improvement of Federal reg-ulations, was revoked by Ex. Ord. No. 12291, Feb. 17,1981, 46 F.R. 13193, formerly set out as a note under sec-tion 601 of this title.

§ 553 Page 716

ADD-1

TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES

§ 706. Scope of review

To the extent necessary to decision and whenpresented, the reviewing court shall decide allrelevant questions of law, interpret constitu-tional and statutory provisions, and determinethe meaning or applicability of the terms of anagency action. The reviewing court shall-

(1) compel agency action unlawfully with-held or unreasonably delayed; and

(2) hold unlawful and set aside agency ac-tion, findings, and conclusions found to be-

(A) arbitrary, capricious, an abuse of dis-cretion, or otherwise not in accordance withlaw;

(B) contrary to constitutional right,power, privilege, or immunity;

(C) in excess of statutory jurisdiction, au-thority, or limitations, or short of statutoryright;

(D) without observance of procedure re-quired by law;

(E) unsupported by substantial evidence ina case subject to sections 556 and 557 of thistitle or otherwise reviewed on the record ofan agency hearing provided by statute; or

(F) unwarranted by the facts to the extentthat the facts are subject to trial de novo bythe reviewing court.

In making the foregoing determinations, thecourt shall review the whole record or thoseparts of it cited by a party, and due accountshall be taken of the rule of prejudicial error.

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 393.)

HISTORICAL AND REVISION NOTES

Derivation U.S. Code Revised Statutes andStatutes at Large

.................. 5 U.S.C. 1009(e). June 11, 1946, ch. 324, §10(e),60 Stat. 243.

Standard changes are made to conform with the defi-nitions applicable and the style of this title as outlinedin the preface of this report.

ABBREVIATION OF RECORD

Pub. L. 85-791, Aug. 28, 1958, 72 Stat. 941, which au-thorized abbreviation of record on review or enforce-ment of orders of administrative agencies and reviewon the original papers, provided, in section 35 thereof,that: "This Act [see Tables for classification] shall notbe construed to repeal or modify any provision of theAdministrative Procedure Act [see Short Title note setout preceding section 551 of this title]."

Page 767 § 706

ADD-2

Chapter I-Veterans Administration

§ 3.103 Due process-procedural andappellate rights with regard to dis-ability and death benefits and relatedrelief.

(a) Statement of policy. Proceedingsbefore the Veterans Administration areex parte in nature. It is the obligationof the Veterans Administration to assista claimant in developing the facts per-tinent to his claim and to render a de-cision which grants him every benefitthat can be supported in law while pro-tecting the interests of the Government.This principle and the other provisionsof this section apply to all claims forbenefits and relief and decisions thereonwithin the purview of this part.

(b) Submission of evidence. Any evi-dence whether documentary, testi-monial, or in other form, offered by aclaimant in support of a claim and anyissue he may raise and contention andargument he may offer with respectthereto are to be included in therecords.

(c) Hearings. Upon request a claim-ant is entitled to a hearing at any timeon any issue involved in a claim withinthe purview of this part. The VeteransAdministration will provide the place ofhearing in the Veterans Administrationoffice having original jurisdiction over the

§ 3.103

ADD-3

Title 38-Pensions, Bonuses, and Veterans' Relief

claim or at the Veterans Administrationoffice nearest his home having adjudica-tive functions and will provide VeteransAdministration personnel who have orig-inal determinative authority of such is-sues to be responsible for the preparationof the transcript; however, further ex-penses involved will be the responsibilityof the claimant. The claimant is entitledto produce witnesses and all testimonywill be under oath or affirmation. Thepurpose of such a hearing is to permit theclaimant to introduce into the recordin person any evidence available to himwhich he may consider material and anyarguments and contentions with respectto the facts and applicable law whichhe may consider pertinent. It is the re-sponsibility of the Veterans Administra-tion personnel conducting the hearingto explain fully the issues and to suggestthe submission of evidence which theclaimant may have overlooked and whichwould be of advantage to his position.It is their further responsibility to estab-lish and preserve the record. Because ofthis and to assure clarity and under-standing therein, questions which aredirected to the claimant and to witnessesare to be framed to explore fully thebasis for claimed entitlement ratherthan with an intent to refute evidenceand to discredit testimony. In cases inwhich the nature, origin, or degree ofdisability is in issue, the claimant mayrequest visual examination by the physi-cian designated by the Veterans Admin-istration as a participant in the hearingand his observations will be read intothe record.

(d) Representation. Within the pro-visions and criteria of § § 14.626 through14.663 of this chapter a claimant is en-titled to representation of his choice atevery stage in the prosecution of a claim.

(e) Notification of decisions. Theclaimant will be notified of any decisionaffecting the payment of benefits orgranting relief. Notice will include thereason for the decision and the date itwill be effectuated as well as the rightto a hearing subject to paragraph (c) ofthis section. The notification will also ad-vise the claimant of his right to initiatean appeal by filing a Notice of Disagree-ment which will entitle him to a State-ment of the case for his assistance inperfecting his appeal. Further, the noticewill advise him of the periods in which anappeal must be initiated and perfected.

(See Part 19, Subpart B of this chapteron appeals.)[37 PR 14780, July 25, 19721

§ 3.104

ADD-4

§ 3.101

38 CFR Ch. I (7-1-93 Edition)

§ 3.103. Procedural due process and appel-late rights..

(a) Statement of policy. Every claimf-ant has the right to written" notice ofthe decision made on his or her claim,the right to a hearing, and the right ofrepresentation. Proceedings before VAare ex parte in nature, and it is the ob-ligation of VA to assist a claimant indeveloping the facts pertinent to theclaim and to render a decision whichgrants every benefit that can be sup-ported in law while protecting the in-terests of the Government. The provi-sions of this section apply to all claimsfor benefits and relief, and decisionsthereon, within the purview of thispart 3.

(b) The right to notice-(1) GeneralClaimants and their representativesare entitled to notice of any decisionmade by VA affecting the payment ofbenefits or the granting of relief. Suchnotice shall clearly set forth the deci-sion made, any applicable effectivedate, the reason(s) for the decision,the right to a hearing on any issue in-volved in the claim, the right of repre-sentation and the right, as well as thenecessary procedures and time limits,to initiate an appeal of the decision.

(2) Pretermination/reduction notice.Except as otherwise provided in para-graph (b)(3) of this section, no award

ADD-5

Department of Veterans Affairs

of compensation, pension or dependen-cy and indemnity compensation shallbe terminated. reduced or otherwiseadversely affected unless the benefici-ary has been notified of such adverseaction and has been provided a periodof 60 days in which to submit evidencefor the purpose of showing that theadverse action should not be taken.

(3) Exceptions. Pretermination/re-duction notice is not required butnotice contemporaneous with the ad-verse action is required when:

(i) An adverse action is based solelyon written, factual, unambiguous in-formation as to income, net worth, de-pendency or marital status providedby the beneficiary or his/her fiduciarywith knowledge or notice that such in-formation would be used to calculatebenefits, and the legal standards ap-plied to this information are numeri-cal in nature.

(ii) An adverse action is based uponthe beneficiary's or fiduciary's failureto return a required eligibility verifica-tion report, or

(iii) Evidence reasonably indicatesthat a beneficiary is deceased. Howev-er, in the event that VA has received adeath certificate, a terminal hospitalreport verifying the death of a benefi-ciary or a claim for VA burial benefits,no notice of termination (contempora-neous or otherwise) will be required.

(c) The right to a hearing. (1) Uponrequest, a claimant is entitled to ahearing at any time on any issue in-volved in a claim within the purview ofpart 3 of this chapter, subject to thelimitations described in § 20.1304 ofthis chapter with respect to hearingsin claims which have been certified tothe Board of Veterans Appeals for ap-pellate review. VA will provide theplace of hearing in the VA officehaving original jurisdiction over theclaim or at the VA office nearest theclaimant's home having adjudicativefunctions, or, subject to available re-sources and solely at the option of VA,at any other VA facility or federalbuilding at which suitable hearing fa-cilities are available. VA will providepersonnel who have original determi-native authority of such issues to con-duct the hearing and be responsiblefor establishment and preservation ofthe hearing record. Hearings in con-

§3.103

nection with proposed adverse actionsand appeals shall be held before VApersonnel having original determina-tive authority who did not participatein the proposed action or the decisionbeing appealed. All expenses incurredby the claimant in connection with thehearing are the responsibility of theclaimant.

(2) The claimant is entitled toproduce witnesses and all testimonywill be under oath or affirmation. Thepurpose of a hearing is to permit theclaimant to introduce into the recordin person any available evidence whichthe claimant may consider materialand any arguments and contentionswith respect to the facts and applica-ble law which the claimant may con-sider pertinent. It is the responsibilityof the VA personnel conducting thehearings to explain fully the issuesand suggest the submission of evi-dence which the claimant may haveoverlooked and which would be of ad-vantage to the claimant's position. Toassure clarity and completeness of thehearing record, questions which are di-rected to the claimant and to wit-nesses are to be framed to explorefully the basis for claimed entitlementrather than with an intent to refuteevidence or to discredit testimony. Incases in which the nature, origin, ordegree of disability is in issue, theclaimant may request visual examina-tion by a physician designated by VAand the physician's observations willbe read into the record.(Authority: 38 U.S.C. 501)

(d) Submission of evidence. Any evi-dence whether documentary, testimo-nial, or in other form, offered by theclaimant in support of a claim and anyissue a claimant may raise and anycontention or argument a claimantmay offer with respect thereto are tobe included in the records.

(e) The right to representation. Sub-ject to the provisions of §§ 14.626through 14.637 of this title, claimantsare entitled to representation of theirchoice at every stage in the prosecu-tion of a claim.

(f) Notification of decisions. Theclaimant or beneficiary and his or herrepresentative will be notified in writ-ing of decisions affecting the payment

197

ADD-6

§ 3.104

of benefits or granting relief. Noticewill include the reason for the decisionand the date it will be effective as wellas the right to a hearing subject toparagraph (c) of this section. The noti-fication will also advise the claimantor beneficiary of the right to initiatean appeal by filing a Notice of Dis-agreement which will entitle the indi-vidual to a Statement of the Case forassistance in perfecting an appeal.Further, the notice will advise him orher of the periods in which an appealmust be initiated and perfected. (Seepart 20 of this chapter, on appeals.)

(55 FR 13527. Apr. 11, 1990; 55 FIR 17530,Apr. 25, 1990, as amended at 55 FR 20148,May 15, 1990; 55 FR 25308, June 21. 1990; 57FR 56993. Dec. 2, 1992; 58 FR 16360. Mar.26, 1993]

38 CFR Ch. 1 (7-1-93 Edition)

198

ADD-7

179

Department of Veterans Affairs § 3.103

§ 3.103 Procedural due process and ap-pellate rights.

(a) Statement of policy. Every claim-

ant has the right to written notice of

the decision made on his or her claim,

the right to a hearing, and the right of

representation. Proceedings before VA

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38 CFR Ch. I (7–1–11 Edition) § 3.103

are ex parte in nature, and it is the ob-

ligation of VA to assist a claimant in

developing the facts pertinent to the

claim and to render a decision which

grants every benefit that can be sup-

ported in law while protecting the in-

terests of the Government. The provi-

sions of this section apply to all claims

for benefits and relief, and decisions

thereon, within the purview of this

part 3.

(b) The right to notice—(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 shall clearly set forth the deci-

sion made, any applicable effective

date, the reason(s) for the decision, the

right to a hearing on any issue in-

volved in the claim, the right of rep-

resentation and the right, as well as

the necessary procedures and time lim-

its, to initiate an appeal of the deci-

sion.

(2) Advance notice and opportunity for hearing. Except as otherwise provided

in paragraph (b)(3) of this section, no

award of compensation, pension or de-

pendency and indemnity compensation

shall be terminated, reduced or other-

wise adversely affected unless the ben-

eficiary has been notified of such ad-

verse action and has been provided a

period of 60 days in which to submit

evidence for the purpose of showing

that the adverse action should not be

taken.

(3) Exceptions. In lieu of advance no-

tice and opportunity for a hearing, VA

will send a written notice to the bene-

ficiary or his or her fiduciary at the

same time it takes an adverse action

under the following circumstances:

(i) An adverse action based solely on

factual and unambiguous information

or statements as to income, net worth,

or dependency or marital status that

the beneficiary or his or her fiduciary

provided to VA in writing or orally

(under the procedures set forth in

§ 3.217(b)), with knowledge or notice

that such information would be used to

calculate benefit amounts.

(ii) An adverse action based upon the

beneficiary’s or fiduciary’s failure to

return a required eligibility

verification report.

(iii) Evidence reasonably indicates that a beneficiary is deceased. How-ever, in the event that VA has received a death certificate, a terminal hospital report verifying the death of a bene-ficiary or a claim for VA burial bene-fits, no notice of termination (contem-poraneous or otherwise) will be re-quired.

(iv) An adverse action based upon a written and signed statement provided by the beneficiary to VA renouncing VA benefits (see § 3.106 on renouncement).

(v) An adverse action based upon a written statement provided to VA by a veteran indicating that he or she has returned to active service, the nature of that service, and the date of reentry into service, with the knowledge or no-tice that receipt of active service pay

precludes concurrent receipt of VA

compensation or pension (see § 3.654 re-

garding active service pay). (vi) An adverse action based upon a

garnishment order issued under 42

U.S.C. 659(a).

(Authority: 38 U.S.C. 501(a))

(4) Restoration of benefits. VA will re-

store retroactively benefits that were

reduced, terminated, or otherwise ad-

versely affected based on oral informa-

tion or statements if within 30 days of

the date on which VA issues the notifi-

cation of adverse action the bene-

ficiary or his or her fiduciary asserts

that the adverse action was based upon

information or statements that were

inaccurate or upon information that

was not provided by the beneficiary or

his or her fiduciary. This will not pre-

clude VA from taking subsequent ac-

tion that adversely affects benefits. (c) The right to a hearing. (1) Upon re-

quest, a claimant is entitled to a hear-

ing at any time on any issue involved

in a claim within the purview of part 3

of this chapter, subject to the limita-

tions described in § 20.1304 of this chap-

ter with respect to hearings in claims

which have been certified to the Board

of Veterans Appeals for appellate re-

view. VA will provide the place of hear-

ing in the VA office having original ju-

risdiction over the claim or at the VA

office nearest the claimant’s home hav-

ing adjudicative functions, or, subject

to available resources and solely at the

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Department of Veterans Affairs § 3.104

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. Hearings in connection with proposed adverse actions and appeals shall be held before one or more VA employees having original determinative author-ity who did not participate in the pro-posed action or the decision being ap-pealed. All expenses incurred by the claimant in connection with the hear-ing are the responsibility of the claim-ant.

(2) The purpose of a hearing is to per-mit the claimant to introduce into the record, in person, any available evi-dence which he or she considers mate-rial and any arguments or contentions with respect to the facts and applicable law which he or she may consider per-tinent. All testimony will be under

oath or affirmation. The claimant is

entitled to produce witnesses, but the

claimant and witnesses are expected to

be present. The Veterans Benefits Ad-

ministration will not normally sched-

ule a hearing for the sole purpose of re-

ceiving argument from a representa-

tive. It is the responsibility of the VA

employee or employees conducting the

hearings to explain fully the issues and

suggest the submission of evidence

which the claimant may have over-

looked and which would be of advan-

tage to the claimant’s position. To as-

sure clarity and completeness of the

hearing record, questions which are di-

rected 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. In cases in

which the nature, origin, or degree of

disability is in issue, the claimant may

request visual examination by a physi-

cian designated by VA and the physi-

cian’s observations will be read into

the record.

(Authority: 38 U.S.C. 501)

(d) Submission of evidence. Any evi-

dence whether documentary, testi-

monial, or in other form, offered by the

claimant in support of a claim and any

issue a claimant may raise and any contention or argument a claimant may offer with respect thereto are to be included in the records.

(e) The right to representation. Subject to the provisions of §§ 14.626 through 14.637 of this title, claimants are enti-tled to representation of their choice

at every stage in the prosecution of a

claim. (f) Notification of decisions. The claim-

ant or beneficiary and his or her rep-

resentative will be notified in writing

of decisions affecting the payment of

benefits or granting relief. All notifica-

tions will advise the claimant of the

reason for the decision; the date the de-

cision will be effective; the right to a

hearing subject to paragraph (c) of this

section; the right to initiate an appeal

by filing a Notice of Disagreement

which will entitle the individual to a

Statement of the Case for assistance in

perfecting an appeal; and the periods in

which an appeal must be initiated and

perfected (See part 20 of this chapter,

on appeals). Further, any notice that

VA has denied a benefit sought will in-

clude a summary of the evidence con-

sidered.

(Authority:38 U.S.C. 501, 1115, 1506, 5104)

[55 FR 13527, Apr. 11, 1990; 55 FR 17530, Apr.

25, 1990, as amended at 55 FR 20148, May 15,

1990; 55 FR 25308, June 21, 1990; 57 FR 56993,

Dec. 2, 1992; 58 FR 16360, Mar. 26, 1993; 58 FR

59366, Nov. 9, 1993; 59 FR 6218, Feb. 10, 1994; 59

FR 6901, Feb. 14, 1994; 66 FR 56613, Nov. 9,

2001]

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38 C.F.R. § 3.103 Page 1

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Code of Federal Regulations Currentness

Title 38. Pensions, Bonuses, and Veterans' Relief Chapter I. Department of Veterans Affairs (Refs & Annos)

Part 3. Adjudication (Refs & Annos) Subpart A. Pension, Compensation, and

Dependency and Indemnity Compensation (Refs & Annos)

Administrative § 3.103 Procedural due process

and appellate rights. (a) Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of repre-sentation. Proceedings before VA are ex parte in na-ture, and it is the obligation of VA to assist a claim-ant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and deci-sions thereon, within the purview of this part 3, ex-cept that the provisions of this section governing hearings apply only to hearings conducted before the VA office having original jurisdiction over the claim. Hearings before the Board of Veterans' Appeals are governed by part 20 of this chapter. (b) The right to notice--

(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 shall clearly set forth the decision made, any applicable effective date, the reason(s) for the decision, the right to a hearing on any issue involved in the claim, the right of representation and the right, as well as the necessary procedures and time limits, to ini-tiate an appeal of the decision.

(2) Advance notice and opportunity for hearing.

Except as otherwise provided in paragraph (b)(3) of this section, no award of compensation, pen-sion or dependency and indemnity compensation shall be terminated, reduced or otherwise ad-versely affected unless the beneficiary has been notified of such adverse action and has been pro-vided a period of 60 days in which to submit evidence for the purpose of showing that the ad-verse action should not be taken.

(3) Exceptions. In lieu of advance notice and op-portunity for a hearing, VA will send a written notice to the beneficiary or his or her fiduciary at the same time it takes an adverse action under the following circumstances:

(i) An adverse action based solely on factual and unambiguous information or statements as to in-come, net worth, or dependency or marital status that the beneficiary or his or her fiduciary pro-vided to VA in writing or orally (under the pro-cedures set forth in § 3.217(b)), with knowledge or notice that such information would be used to calculate benefit amounts.

(ii) An adverse action based upon the benefici-ary's or fiduciary's failure to return a required eligibility verification report.

(iii) Evidence reasonably indicates that a benefi-ciary is deceased. However, in the event that VA has received a death certificate, a terminal hospi-tal report verifying the death of a beneficiary or a claim for VA burial benefits, no notice of termi-nation (contemporaneous or otherwise) will be required.

(iv) An adverse action based upon a written and signed statement provided by the beneficiary to VA renouncing VA benefits (see § 3.106 on re-nouncement).

(v) An adverse action based upon a written statement provided to VA by a veteran indicating that he or she has returned to active service, the nature of that service, and the date of reentry into service, with the knowledge or notice that receipt

ADD-11

38 C.F.R. § 3.103 Page 2

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

of active service pay precludes concurrent re-ceipt of VA compensation or pension (see § 3.654 regarding active service pay).

(vi) An adverse action based upon a garnishment order issued under 42 U.S.C. 659(a).

(4) Restoration of benefits. VA will restore ret-roactively benefits that were reduced, terminated, or otherwise adversely affected based on oral in-formation or statements if within 30 days of the date on which VA issues the notification of ad-verse action the beneficiary or his or her fiduci-ary asserts that the adverse action was based upon information or statements that were inaccu-rate or upon information that was not provided by the beneficiary or his or her fiduciary. This will not preclude VA from taking subsequent ac-tion that adversely affects benefits.

(Authority: 38 U.S.C. 501(a))

(c) The right to a hearing.

(1) Upon request, a claimant is entitled to a hear-ing at any time on any issue involved in a claim within the purview of part 3 of this chapter. VA will provide the place of hearing in the VA office having original jurisdiction over the claim or at the VA office nearest the claimant's home having adjudicative functions, or, subject to available resources and solely at the option of VA, at any other VA facility or federal building at which suitable hearing facilities are available. VA will provide one or more employees of the VA office having original jurisdiction over the claim to conduct the hearing and to be responsible for es-tablishment and preservation of the hearing re-cord. Hearings in connection with proposed ad-verse actions and appeals shall be held before one or more employees of the VA office having original jurisdiction over the claim who did not participate in the proposed action or the decision being appealed. All expenses incurred by the claimant in connection with the hearing are the responsibility of the claimant.

(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 material 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 en-titled to produce witnesses, but the claimant and witnesses are expected to be present. The Veter-ans Benefits Administration will not normally schedule a hearing for the sole purpose of receiv-ing argument from a representative. It is the re-sponsibility of the employee or employees con-ducting 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 ex-plore fully the basis for claimed entitlement rather than with an intent to refute evidence or to discredit testimony. In cases in which the nature, origin, or degree of disability is in issue, the claimant may request visual examination by a physician designated by VA and the physician's observations will be read into the record.

(Authority: 38 U.S.C. 501)

(d) Submission of evidence. Any evidence whether documentary, testimonial, or in other form, offered by the claimant in support of a claim and any issue a claimant may raise and any contention or argument a claimant may offer with respect thereto are to be in-cluded in the records. (e) The right to representation. Subject to the provi-sions of §§ 14.626 through 14.637 of this title, claim-ants are entitled to representation of their choice at every stage in the prosecution of a claim. (f) Notification of decisions. The claimant or benefi-ciary and his or her representative will be notified in writing of decisions affecting the payment of benefits or granting relief. All notifications will advise the claimant of the reason for the decision; the date the decision will be effective; the right to a hearing sub-ject to paragraph (c) of this section; the right to initi-ate an appeal by filing a Notice of Disagreement which will entitle the individual to a Statement of the Case for assistance in perfecting an appeal; and the periods in which an appeal must be initiated and per-fected (See part 20 of this chapter, on appeals). Fur-ther, any notice that VA has denied a benefit sought

ADD-12

38 C.F.R. § 3.103 Page 3

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

will include a summary of the evidence considered.

Authority: 38 U.S.C. 501, 1115, 1506, 5104. [37 FR 14780, July 25, 1972; 54 FR 34981, Aug. 23, 1989; 55 FR 13527, April 11, 1990; 55 FR 17530, April 25, 1990; 55 FR 20148, May 15, 1990; 55 FR 25308, June 21, 1990; 57 FR 56993, Dec. 2, 1992; 58 FR 16360, March 26, 1993; 58 FR 59366, Nov. 9, 1993; 59 FR 6218, Feb. 10, 1994; 59 FR 6901, Feb. 14, 1994; 66 FR 56613, Nov. 9, 2001; 76 FR 52574, Aug. 23, 2011] SOURCE: 54 FR 34978, 34981, Aug. 23, 1989; 56 FR 65846, 65847, 65849, 65851, 65853, Dec. 19, 1991; 57 FR 8268, March 9, 1992; 57 FR 10425, March 26, 1992; 57 FR 31007, 31012, July 13, 1992; 57 FR 38610, Aug. 26, 1992; 57 FR 59296, Dec. 15, 1992, unless otherwise noted. AUTHORITY: 38 U.S.C. 501(a). 38 C. F. R. § 3.103, 38 CFR § 3.103 Current through December 15, 2011; 76 FR 77913. © 2011 Thomson Reuters END OF DOCUMENT

ADD-13

Chapter I-Veterans Administration

Subpart B-Appeals-Rules ofPractice

GENERAL

§ 19.101 Rule 1; Authority, scope of rules,

and construction.

(a) Authority. Pursuant to the au-thority vested in the Administrator ofVeterans Affairs (38 U.S.C. 210(c)(1))there are hereby issued revised Rulesof Practice which govern proceedingsin appeals to the Board of VeteransAppeals.

(b) Scope. These rules govern thepractices and procedures for process-ing appeals for the Board of VeteransAppeals. Where in any instance thereis no applicable rule or procedure, thepresiding Board member before whomthe matter is pending may prescribe aprocedure which is consistent with theprovisions of title 38, United StatesCode, and these rules. (38 U.S.C. 4002)

(c) Construction. In accordance withthe agency's policy of providing assist-ance to the appellant, these rules shallbe construed to secure a just andspeedy decision in every appeal. (38U.S.C. 210)

CRoss-REYEmwcEs: Reasonable doubt. See§ 3.102. Due process-procedural and appel-late rights with regard to disability anddeath benefits and related relief. See§ 3.103.

§ 19.106

ADD-14

§ 19.174

§ 19.174 Rule 74. Request for -change inrepresentation, request for personalhearing, or submission of additionalevidence following ,certification of anappeal to the.-Board of Veterans Ap-peals.

(a) Notification. When an appeal iscertified to the Board of Veterans Ap-peals for :appellate review and the ap-pellate record is transferred to theBoard, the appellant and his or herrepresentative, if any, will be notifiedin- writing of the certification and

:,transfer. and of- the .time limit for re-questing a change-in representation,for requesting a personalhearing, andfor submitting additional evidence de-scribed in this section.

(b) Request for a change in represen-tation, request for a personal hearing,.or submission of additional evidencewithin 90 days following notificationof certification and transfer of records.An appellant and his or her represent-ative. if any, will be granted a period

'of 90 days following the mailing tothem of the notice describedsin_-para-graph (a). or until the date the appel-late decision is promulgated by the

- Board of Veterans Appeals, whichever-comes first, during which they maysubmit a request for a personal hear-ing or additional evidence, and during

36 CFR Ch. 1 (7-1-90 Edition)

which the appellant may request achange in representation. Any such re-quest or. additional evidence should besubmitted directly to the Board andnot to the agency of original jurisdic-tion. The date of the letter of notifica-tion will be presumed to be the date ofmailing for purposes of determiningwhether the request was timely madeor the evidence timely submitted. Anyevidence which is submitted at a hear-ing on appeal which was requestedduring such period will be consideredto have been received during suchperiod, even though the hearing maybe held following the expiration of theperiod..-Any pertinent evidence submit-ted by the appellant or representativeis subject to the requirements of para-graph (d) of this section and, if a si-multaneously contested claim is in-volved, the requirements of paragraph(e) of this section.

(c) Subsequent request for a changein representation, request for a person-al hearing, or submission of addition-

,.al evidence. Following the expirationof the period described in paragraph(b).of this section, the Board of Veter-ans Appeals will- not. accept a requestfor a-change ,in representation, a re--quest for a personal hearing, or addi-.tional evidence except when the appel-lant demonstrates on motion thatthere was good cause for the delay.Examples of good cause include, butare not limited to, illness of the appel-lant or the representative which pre-cluded action during the period; deathof an individual representative; illnessor incapacity of an individual repre-sentative which renders it impractical-for an appellant.to continue with himor her. as representative; withdrawal ofan individual representative; the dis-covery of evidence that was not avail-able prior to -the expiration of theperiod; and delay in transfer of the ap-pellate record to the Board which pre-cluded timely action with respect tothese matters. Such motions must bein writing and must include the nameof the veteran; the name of the claim-ant or appellant if other than the vet-eran (e.g., a veteran's survivor orguardian); the applicable Departmentof Veterans Affairs file number; andan explanation of why the request fora change In representation, the re-

ADD-15

Department of Veterans Affairs

quest for a personal hearing, or thesubmission of additional evidencecould not be accomplished in a timelymanner. Such motions should be filedat the following address: Office of theChairman, Special Legal Assistant(OIC), Board of Veterans Appeals, 810Vermont Avenue, NW., Washington,DC 20420. The ruling on the motionwill be by the Chairman. Dependingupon the ruling on the motion, actionwill be taken as follows:

(1) Good cause not shown. If goodcause is not shown, the request for achange in representation, the requestfor a personal hearing, or the addi-tional evidence submitted will be re-ferred to the agency of original juris-diction upon completion of theBoard's action on the pending appealwithout action by the Board concern-ing the request or additional evidence.Any personal hearing granted as aresult of a request so referred or anyadditional evidence so referred may betreated by that agency as the basis fora reopened claim if appropriate. If theBoard denied a benefit sought in thepending appeal and any evidence so re-ferred which was received prior to thedate of the Board's decision, or testi-mony presented at a hearing resultingfrom a request for a hearing so re-ferred, together with the evidence al-ready of record, is subsequently foundto be the basis of an allowance of thatbenefit, the effective date of theaward will be the same as if the bene-fit had been granted by the Board as aresult of the appeal which was pend-ing at the time that the hearing re-quest or additional evidence was re-ceived.

(2) Good cause shown. If good causeis shown, the request for a change inrepresentation or for a personal hear-ing will be honored. Any pertinent evi-dence submitted by the appellant orrepresentative will be accepted, sub-ject to the requirements of paragraph(d) of this section and, if a simulta-neously contested claim is involved,the requirements of paragraph (e) ofthis section.

(d) Consideration of additional evi-dence by agency of original jurisdic-tion. Any pertinent evidence submit-ted by the appellant or representativewhich is accepted by the Board under

§ 19.175

the provisions of this section, as wellas any referred to the Board by theoriginating agency under Rule 73(b)(§ 19.173(b) of this part), must be re-ferred to the agency Of original juris-diction for review and preparation of aSupplemental Statement of the Caseunless this procedural right is waivedby the appellant or unless the Boarddetermines that the benefit, or bene-fits, to which the evidence relates maybe allowed on appeal without such re-ferral. Such waiver must be in writingor, if a hearing on appeal is conducted,formally entered on the record orallyat the time of the hearing.

(e) Simultaneously contested claims.In simultaneously contested claims, ifpertinent evidence is submitted by anyclaimant and is accepted by the Boardunder the provisions of this section,the substance of such evidence will bemailed to each of the other claimantswho will then have 60 days from thedate of mailing of notice of the newevidence within which to commentupon it and/or submit additional evi-dence in rebuttal. The date of theletter of notification of the new evi-dence will be presumed to be the dateof mailing for purposes of determiningwhether such comment or evidence inrebuttal was timely submitted. No fur-ther period will be provided for re-sponse to such comment or rebuttalevidence.(Authority: 38 U.S.C. 4004, 4005, 4005A)[55 FR 20149. May 15, 1990]

CRoss-REVERENcxs: For further informa-tion concerning: Hearings, see § 3.103 andRules 57 through 71 (§M 19.157-19,171); Newand Material Evidence, see § 3.156(a): Re-opened Claim: see §§ 3.160(e) and 3.400(r):Computation of Time Limit, see Rule 31(0 19.131); Legal Holidays, see Rule 32(§ 19.132).

ADD-16

§ 20.1 38 CFR Ch. I (7-1-93 Edition)

Subpart A-General

§ 20.1 Rule 1. Purpose and construction ofRules of Practice.

(a) Purpose. These rules establishthe practices and procedures govern-ing appeals to the Board of Veterans'Appeals.

(Authority: 38 U.S.C. 501(a), 7102, 7104)

(b) Construction. These rules are tobe construed to secure a just andspeedy decision in every appeal.

(Authority: 38 U.S.C. 501(a). 5107, 7104)

ADD-17

73

Department of Veterans Affairs § 20.1

Subpart A—General

§ 20.1 Rule 1. Purpose and construc-tion of Rules of Practice.

(a) Purpose. These rules establish the

practices and procedures governing ap-

peals to the Board of Veterans’ Ap-

peals.

(Authority: 38 U.S.C. 501(a), 7102, 7104)

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38 CFR Ch. I (7–1–11 Edition) § 20.2

(b) Construction. These rules are to be

construed to secure a just and speedy

decision in every appeal.

(Authority: 38 U.S.C. 501(a), 5107, 7104)

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38 C.F.R. § 20.1 Page 1

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Effective:[See Text Amendments] Code of Federal Regulations Currentness

Title 38. Pensions, Bonuses, and Veterans' Relief Chapter I. Department of Veterans Affairs (Refs & Annos)

Part 20. Board of Veterans' Appeals: Rules of Practice (Refs & Annos)

Subpart A. General § 20.1 Rule 1. Purpose and construc-

tion of Rules of Practice. (a) Purpose. These rules establish the practices and procedures governing appeals to the Board of Veter-ans' Appeals.

(Authority: 38 U.S.C. 501(a), 7102, 7104) (b) Construction. These rules are to be construed to secure a just and speedy decision in every appeal.

(Authority: 38 U.S.C. 501(a), 5107, 7104) SOURCE: 57 FR 4109, Feb. 3, 1992; 64 FR 73414, Dec. 30, 1999, unless otherwise noted. AUTHORITY: 38 U.S.C. 501(a) and as noted in spe-cific sections. 38 C. F. R. § 20.1, 38 CFR § 20.1 Current through December 15, 2011; 76 FR 77913. © 2011 Thomson Reuters END OF DOCUMENT

ADD-20

Department of Veterans Affairs

§ 20.705 Rule 705. Where hearings areconducted.

A hearing on appeal before theBoard of Veterans' Appeals may beheld in one of the following places atthe option of the appellant:

(a) In Washington, DC, or(b) Before a traveling Section of the

Board of Veterans' Appeals at Depart-ment of Veterans Affairs facilitieshaving adequate physical resourcesand personnel for the support of suchhearings.

• AuTHory: 38 U.S.C. 7102, .7104(a).7105(a). 7110)158 FR 27936. May 12, 1993]

§ 20.707

ADD-21

86

38 CFR Ch. I (7–1–11 Edition) § 20.705

§ 20.705 Rule 705. Where hearings are conducted.

A hearing on appeal before the Board

of Veterans’ Appeals may be held in

one of the following places at the op-

tion of the appellant:

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Department of Veterans Affairs § 20.710

(a) In Washington, DC, or

(b) At a Department of Veterans Af-

fairs facility having adequate physical

resources and personnel for the support

of such hearings.

(Authority: 38 U.S.C. 7102, 7105(a), 7107)

[58 FR 27936, May 12, 1993, as amended at 61

FR 20451, May 7, 1996]

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38 C.F.R. § 20.705 Page 1

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

Effective:[See Text Amendments] Code of Federal Regulations Currentness

Title 38. Pensions, Bonuses, and Veterans' Relief Chapter I. Department of Veterans Affairs (Refs & Annos)

Part 20. Board of Veterans' Appeals: Rules of Practice (Refs & Annos)

Subpart H. Hearings on Appeal § 20.705 Rule 705. Where hearings

are conducted. A hearing on appeal before the Board of Veterans' Appeals may be held in one of the following places at the option of the appellant: (a) In Washington, DC, or (b) At a Department of Veterans Affairs facility hav-ing adequate physical resources and personnel for the support of such hearings.

(Authority: 38 U.S.C. 7102, 7105(a), 7107) [58 FR 27936, May 12, 1993; 61 FR 20451, May 7, 1996] SOURCE: 57 FR 4109, Feb. 3, 1992; 64 FR 73414, Dec. 30, 1999, unless otherwise noted. AUTHORITY: 38 U.S.C. 501(a) and as noted in spe-cific sections. 38 C. F. R. § 20.705, 38 CFR § 20.705 Current through December 15, 2011; 76 FR 77913. © 2011 Thomson Reuters END OF DOCUMENT

ADD-24

87

Department of Veterans Affairs § 20.710

§ 20.706 Rule 706. Functions of the pre-siding Member.

The presiding Member of a hearing

panel is responsible for the conduct of

the hearing, administration of the oath

or affirmation, and for ruling on ques-

tions of procedure. The presiding Mem-

ber will assure that the course of the

hearing remains relevant to the issue,

or issues, on appeal and that there is

no cross-examination of the parties or

witnesses. The presiding Member will

take such steps as may be necessary to

maintain good order at hearings and

may terminate a hearing or direct that

the offending party leave the hearing if

an appellant, representative, or witness

persists in disruptive behavior.

(Authority: 38 U.S.C. 7102, 7105(a), 7107)

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38 C.F.R. § 20.706 Page 1

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

Code of Federal Regulations Currentness

Title 38. Pensions, Bonuses, and Veterans' Relief Chapter I. Department of Veterans Affairs (Refs & Annos)

Part 20. Board of Veterans' Appeals: Rules of Practice (Refs & Annos)

Subpart H. Hearings on Appeal § 20.706 Rule 706. Functions of the

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

(Authority: 38 U.S.C. 7102, 7105(a), 7107) [61 FR 20451, May 7, 1996; 76 FR 52575, Aug. 23, 2011] SOURCE: 57 FR 4109, Feb. 3, 1992; 64 FR 73414, Dec. 30, 1999, unless otherwise noted. AUTHORITY: 38 U.S.C. 501(a) and as noted in spe-cific sections. 38 C. F. R. § 20.706, 38 CFR § 20.706 Current through December 15, 2011; 76 FR 77913.

© 2011 Thomson Reuters END OF DOCUMENT

ADD-26

Department of Veterans Affairs § 20.1304

§ 20.1304 Rule 1304. Request for change inrepresentation, -request for personalhearing, or submission of additionalevidence following certification of anappeal to the Board of Veterans' Ap-peals.

(a) Request for a change in represen-tation, request for a personal hearing,or submission of additional evidencewithin 90 days following notificationof certification and transfer of records.An appellant and his or her represent-ative, if any, will be granted a periodof 90 days following the mailing ofnotice to them that an appeal hasbeen certified to the Board for appel-late review and that the appellaterecord has been transferred to theBoard, or until the date the appellatedecision is promulgated by the Boardof Veterans' Appeals, whichever comesfirst, during which they may submit arequest for a personal hearing, addi-tional evidence, or a request for achange n representation. Any such re-quest or additional evidence must besubmitted directly to the Board andnot to the agency of original Jurisdic-tion. The date of mailing of the letterof notification will be presumed to bethe same as the date of that letter forpurposes of determining whether therequest was timely made or the evi-dence was timely submitted. Any evi-dence which is submitted at a hearingon appeal which was requested duringsuch period will be considered to havebeen received during such period, eventhough the hearing may be held fol-lowing the expiration of the period.Any pertinent evidence submitted bythe appellant or representative is sub-

101

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§ 20.1304

ject to the requirements of paragraph(c) of this section and, if a simulta-neously contested claim is involved,the requirements of paragraph (d) ofthis section.

(b) Subsequent request for a changein representation, request for a person-al hearing, or submission of addition-al evidence. Following the expirationof the period described in paragraph(a) of this section, the Board of Veter-ans' Appeals will not accept a requestfor a change in representation, a re-quest for a personal hearing, or addi-tional evidence except when the appel-lant demonstrates on motion thatthere was good cause for the delay.Examples of good cause include, butare not limited to, illness of the appel-lant or the representative which pre-cluded action during the period; deathof an individual representative; illnessor incapacity of an individual repre-sentative which renders it impracticalfor an appellant to continue with himor her as representative; withdrawal ofan individual representative; the dis-covery of evidence that was not avail-able prior to the expiration of theperiod; and delay in transfer of the ap-pellate record to the Board which pre-cluded timely action with respect tothese matters. Such motions must bein writing and must include the nameof the veteran; the name of the claim-ant or appellant if other than the vet-eran (e.g., a veteran's survivor, aguardian, or a fiduciary appointed toreceive VA benefits on an individual'sbehalf); the applicable Department ofVeterans Affairs file number; and anexplanation of why the request for achange in representation, the requestfor a personal hearing, or the submis-sion of additional evidence could notbe accomplished in a timely manner.Such motions must be filed at the fol-lowing address: Director, Administra-tive Service (014). Board of Veterans'Appeals, 810 Vermont Avenue, NW.,Washington, DC 20420. The ruling onthe motion will be by the Chairman.Depending upon the ruling on themotion, action will be taken as follows:

(1) Good cause not shown. If goodcause is not shown, the request for achange in representation, the requestfor a personal hearing, or the addi-tional evidence submitted will be re-

38 CFR Ch. I (7-1-93 Edition)

ferred to the agency of original juris-diction upon completion of theBoard's action on the pending appealwithout action by the Board concern-ing the request or additional evidence.Any personal hearing granted as aresult of a request so referred or anyadditional evidence so referred may betreated by that agency as the basis fora reopened claim, if appropriate. If theBoard denied a benefit sought in thepending appeal and any evidence so re-ferred which was received prior to thedate of the Board's decision, or testi-mony presented at a hearing resultingfrom a request for a hearing so re-ferred, together with the evidence al-ready of record, is subsequently foundto be the basis of an allowance of thatbenefit, the effective date of theaward will be the same as if the bene-fit had been granted by the Board as aresult of the appeal which was pend-ing at the time that the hearing re-quest or additional evidence was re-ceived.

(2) Good cause shown. If good causeis shown, the request for a change inrepresentation or for a personal hear-ing will be honored. Any pertinent evi-dence submitted by the appellant orrepresentative will be accepted, sub-ject to the requirements of paragraph(c) of this section and, if a simulta-neously contested claim is involved,the requirements of paragraph (d) ofthis section.

(c) Consideration of additional evi-dence by agency of original jurisdic-tion. Any pertinent evidence submit-ted by the appellant or representativewhich is accepted by the Board underthe provisions of this section, as wellas any such evidence referred to theBoard by the originating agency under§ 19.37(b) of this chapter, must be re-ferred to the agency of original juris-diction for review and preparation of aSupplemental Statement of the Caseunless this procedural right is waivedby the appellant or unless the Boarddetermines that the benefit, or bene-fits, to which the evidence relates maybe allowed on appeal without such re-ferral. Such waiver must be in writingor, if a hearing on appeal is conducted,formally entered on the record orallyat the time of the hearing.

102

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Department of Veterans Affairs

(d) Simultaneously contested claims.In simultaneously contested claims, ifpertinent evidence which directly af-fects payment, or potential payment,of the benefit sought is submitted byany claimant and is accepted by theBoard under the provisions of this sec-tion, the substance of such evidencewill be mailed to each of the otherclaimants who will then have 60 daysfrom the date of mailing of notice ofthe new evidence within which to com-

§ 20.1304

ment upon it and/or submit additionalevidence in rebuttal. The date of mail-ing of the letter of notification of thenew evidence will be presumed to bethe same as the date of that letter forpurposes of determining whether suchcomment or evidence in rebuttal wastimely submitted. No further periodwill be provided for response to suchcomment or rebuttal evidence.(Authority: 38 U.S.C. 7104, 7105, 7105A)

ADD-29

97

Department of Veterans Affairs § 20.1304

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

(a) Request for a change in representa-tion, request for a personal hearing, or

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38 CFR Ch. I (7–1–11 Edition) § 20.1304

submission of additional evidence within 90 days following notification of certifi-cation and transfer of records. An appel-

lant 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 until the date the ap-

pellate decision is promulgated by the

Board of Veterans’ Appeals, whichever

comes first, during which they may

submit a request for a personal hear-

ing, additional evidence, or a request

for a change in representation. Any

such request or additional evidence

must be submitted directly to the

Board and not to the agency of original

jurisdiction. The date of mailing of the

letter of notification will be presumed

to be the same as the date of that let-

ter for purposes of determining wheth-

er the request was timely made or the

evidence was timely submitted. Any

evidence which is submitted at a hear-

ing on appeal which was requested dur-

ing 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 sub-

ject to the requirements of paragraph

(d) of this section if a simultaneously

contested claim is involved.

(b) Subsequent request for a change in representation, request for a personal hearing, or submission of additional evi-dence—(1) General rule. Subject to the

exception in paragraph (b)(2) of this

section, following the expiration of the

period described in paragraph (a) of

this section, the Board of Veterans’ Ap-

peals will not accept a request for a

change in representation, a request for

a personal hearing, or additional evi-

dence except when the appellant dem-

onstrates 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 rep-

resentative which precluded action

during the period; death of an indi-

vidual representative; illness or inca-

pacity of an individual representative

which renders it impractical for an ap-

pellant to continue with him or her as

representative; withdrawal of an indi-

vidual representative; the discovery of

evidence that was not available prior

to the expiration of the period; and

delay in transfer of the appellate

record to the Board which precluded

timely action with respect to these

matters. Such motions must be in writ-

ing 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 Af-

fairs file number; and an explanation of

why the request for a change in rep-

resentation, the request for a personal

hearing, or the submission of addi-

tional evidence could not be accom-

plished in a timely manner. Such mo-

tions must be filed at the following ad-

dress: Director, Management and Ad-

ministration (01E), Board of Veterans’

Appeals, 810 Vermont Avenue, NW.,

Washington, DC 20420. Depending upon

the ruling on the motion, action will be

taken as follows:

(i) Good cause not shown. If good

cause is not shown, the request for a

change in representation, the request

for a personal hearing, or the addi-

tional evidence submitted will be re-

ferred to the agency of original juris-

diction upon completion of the Board’s

action on the pending appeal without

action by the Board concerning the re-

quest or additional evidence. Any per-

sonal hearing granted as a result of a

request so referred or any additional

evidence so referred may be treated by

that agency as the basis for a reopened

claim, if appropriate. If the Board de-

nied a benefit sought in the pending ap-

peal and any evidence so referred which

was received prior to the date of the

Board’s decision, or testimony pre-

sented at a hearing resulting from a re-

quest for a hearing so referred, to-

gether with the evidence already of

record, is subsequently found to be the

basis of an allowance of that benefit,

the effective date of the award will be

the same as if the benefit had been

granted by the Board as a result of the

appeal which was pending at the time

that the hearing request or additional

evidence was received.

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99

Department of Veterans Affairs § 20.1400

(ii) Good cause shown. If good cause is

shown, the request for a change in rep-

resentation or for a personal hearing

will be honored. Any pertinent evi-

dence submitted by the appellant or

representative will be accepted, subject

to the requirements of paragraph (d) of

this section if a simultaneously con-

tested claim is involved.

(2) Exception. The motion described in

paragraph (b)(1) of this section is not

required to submit evidence in response

to a notice described in § 20.903 of this

chapter.

(c) Consideration of additional evidence by the Board or by the agency of original jurisdiction. Any pertinent evidence

submitted by the appellant or rep-

resentative which is accepted by the

Board under the provisions of this sec-

tion, or is submitted by the appellant

or representative in response to a

§ 20.903 of this part, notification, as

well as any such evidence referred to

the Board by the agency of original ju-

risdiction under § 19.37(b) of this chap-

ter, must be referred to the agency of

original jurisdiction for review, unless

this procedural right is waived by the

appellant or representative, or unless

the Board determines that the benefit

or benefits to which the evidence re-

lates may be fully allowed on appeal

without such referral. Such a waiver

must be in writing or, if a hearing on

appeal is conducted, the waiver must

be formally and clearly entered on the

record orally at the time of the hear-

ing. Evidence is not pertinent if it does

not relate to or have a bearing on the

appellate issue or issues.

(d) Simultaneously contested claims. In

simultaneously contested claims, if

pertinent evidence which directly af-

fects payment, or potential payment,

of the benefit sought is submitted by

any claimant and is accepted by the

Board under the provisions of this sec-

tion, the substance of such evidence

will be mailed to each of the other

claimants who will then have 60 days

from the date of mailing of notice of

the new evidence within which to com-

ment upon it and/or submit additional

evidence in rebuttal. For matters over

which the Board does not have original

jurisdiction, a waiver of initial agency

of original jurisdiction consideration of

pertinent additional evidence received

by the Board must be obtained from

each claimant in accordance with para-

graph (c) of this section. The date of

mailing of the letter of notification of

the new evidence will be presumed to

be the same as the date of that letter

for purposes of determining whether

such comment or evidence in rebuttal

was timely submitted. No further pe-

riod will be provided for response to

such comment or rebuttal evidence.

(e) Relationship to proceedings before

the General Counsel to cancel accredita-

tion or to review the reasonableness of

fees and expenses. The provisions of

paragraphs (a), (b), and (d) of this sec-

tion allowing appellants to submit ad-

ditional evidence do not apply in pro-

ceedings before the General Counsel

conducted under part 14 of this chapter

to cancel accreditation or to review fee

agreements and expenses for reason-

ableness.

(Authority: 38 U.S.C. 7104, 7105, 7105A; 38

U.S.C. 5902, 5903, 5904)

[57 FR 4109, Feb. 3, 1992, as amended at 60 FR

25851, May 15, 1995; 61 FR 20453, May 7, 1996;

67 FR 3105, Jan. 23, 2002; 69 FR 53808, Sept. 3,

2004; 73 FR 29880, May 22, 2008; 76 FR 17548,

Mar. 30, 2011]

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38 C.F.R. § 20.1304 Page 1

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

Code of Federal Regulations Currentness

Title 38. Pensions, Bonuses, and Veterans' Relief Chapter I. Department of Veterans Affairs (Refs & Annos)

Part 20. Board of Veterans' Appeals: Rules of Practice (Refs & Annos)

Subpart N. Miscellaneous (Refs & An-nos)

§ 20.1304 Rule 1304. Request for change in representation, request for personal hearing, or submission of ad-ditional 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 evi-dence within 90 days following notification of certi-fication and transfer of records. An appellant 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 ap-pellate review and that the appellate record has been transferred to the Board, or until the date the appel-late decision is promulgated by the Board of Veter-ans' Appeals, whichever comes first, during which they may submit a request for a personal hearing, additional evidence, or a request for a change in rep-resentation. Any such request or additional evidence must be submitted directly to the Board and not to the agency of original jurisdiction. 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 deter-mining whether the request was timely made or the evidence was timely submitted. Any evidence which is submitted at a hearing on appeal which was re-quested 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 ap-pellant or representative is subject to the require-ments of paragraph (d) of this section if a simultane-ously contested claim is involved. (b) Subsequent request for a change in representation, request for a personal hearing, or submission of addi-

tional evidence--

(1) General rule. Subject to the exception in paragraph (b)(2) of this section, following the expiration of the period described in paragraph (a) of this section, the Board of Veterans' Ap-peals will not accept a request for a change in representation, a request for a personal hearing, or additional evidence except when the appellant demonstrates on motion that there was good cause for the delay. Examples of good cause in-clude, but are not limited to, illness of the appel-lant or the representative which precluded action during the period; death of an individual repre-sentative; illness or incapacity of an individual representative which renders it impractical for an appellant to continue with him or her as repre-sentative; withdrawal of an individual represen-tative; the discovery of evidence that was not available prior to the expiration of the period; and delay in transfer of the appellate record to the Board which precluded timely action with re-spect to these matters. Such motions must be in writing and must include the name of the vet-eran; 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 appli-cable Department of Veterans Affairs file num-ber; and an explanation of why the request for a change in representation, the request for a per-sonal hearing, or the submission of additional evidence could not be accomplished in a timely manner. Such motions must be filed at the fol-lowing address: Director, Management and Ad-ministration (01E), Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. Depending upon the ruling on the mo-tion, action will be taken as follows:

(i) Good cause not shown. If good cause is not shown, the request for a change in representa-tion, the request for a personal hearing, or the additional evidence submitted will be referred to the agency of original jurisdiction upon comple-tion of the Board's action on the pending appeal without action by the Board concerning the re-quest or additional evidence. Any personal hear-ing granted as a result of a request so referred or any additional evidence so referred may be

ADD-33

38 C.F.R. § 20.1304 Page 2

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

treated by that agency as the basis for a reopened claim, if appropriate. If the Board denied a bene-fit sought in the pending appeal and any evi-dence so referred which was received prior to the date of the Board's decision, or testimony pre-sented at a hearing resulting from a request for a hearing so referred, together with the evidence already of record, is subsequently found to be the basis of an allowance of that benefit, the effec-tive date of the award will be the same as if the benefit had been granted by the Board as a result of the appeal which was pending at the time that the hearing request or additional evidence was received.

(ii) Good cause shown. If good cause is shown, the request for a change in representation or for a personal hearing will be honored. Any pertinent evidence submitted by the appellant or represen-tative will be accepted, subject to the require-ments of paragraph (d) of this section if a simul-taneously contested claim is involved.

(2) Exception. The motion described in para-graph (b)(1) of this section is not required to submit evidence in response to a notice described in § 20.903 of this chapter.

(c) Consideration of additional evidence by the Board or by the agency of original jurisdiction. Any perti-nent evidence submitted by the appellant or represen-tative which is accepted by the Board under the pro-visions of this section, or is submitted by the appel-lant or representative in response to a § 20.903 of this part, notification, as well as any such evidence re-ferred to the Board by the agency of original jurisdic-tion under § 19.37(b) of this chapter, must be referred to the agency of original jurisdiction for review, unless this procedural right is waived by the appellant or representative, or unless the Board determines that the benefit or benefits to which the evidence relates may be fully allowed on appeal without such referral. Such a waiver must be in writing or, if a hearing on appeal is conducted, the waiver must be formally and clearly entered on the record orally at the time of the hearing. Evidence is not pertinent if it does not relate to or have a bearing on the appellate issue or issues. (d) Simultaneously contested claims. In simultane-ously contested claims, if pertinent evidence which directly affects payment, or potential payment, of the

benefit sought is submitted by any claimant and is accepted by the Board under the provisions of this section, the substance of such evidence will be mailed to each of the other claimants who will then have 60 days from the date of mailing of notice of the new evidence within which to comment upon it and/or submit additional evidence in rebuttal. For matters over which the Board does not have original jurisdiction, a waiver of initial agency of original jurisdiction consideration of pertinent additional evi-dence received by the Board must be obtained from each claimant in accordance with paragraph (c) of this section. The date of mailing of the letter of noti-fication of the new evidence will be presumed to be the same as the date of that letter for purposes of de-termining whether such comment or evidence in re-buttal was timely submitted. No further period will be provided for response to such comment or rebuttal evidence. (e) Relationship to proceedings before the General Counsel to cancel accreditation or to review the rea-sonableness of fees and expenses. The provisions of paragraphs (a), (b), and (d) of this section allowing appellants to submit additional evidence do not apply in proceedings before the General Counsel conducted under part 14 of this chapter to cancel accreditation or to review fee agreements and expenses for reason-ableness.

(Authority: 38 U.S.C. 7104, 7105, 7105A; 38 U.S.C. 5902, 5903, 5904) [60 FR 25851, May 15, 1995; 61 FR 20453, May 7, 1996; 67 FR 3105, Jan. 23, 2002; 69 FR 53808, Sept. 3, 2004; 73 FR 29880, May 22, 2008; 76 FR 17548, March 30, 2011] SOURCE: 57 FR 4109, Feb. 3, 1992; 64 FR 73414, Dec. 30, 1999, unless otherwise noted. AUTHORITY: 38 U.S.C. 501(a) and as noted in spe-cific sections. 38 C. F. R. § 20.1304, 38 CFR § 20.1304 Current through December 15, 2011; 76 FR 77913. © 2011 Thomson Reuters END OF DOCUMENT

ADD-34

38 CFR Ch. I (7-1-93 Edition)

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I

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Department of Veterans Affairs

a a2

§ 20.1304

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ADD-36

38 CFR Ch. I (7-1-93 Edition)

J i a

§20.1304

ADD-37

108

38 CFR Ch. I (7–1–11 Edition) § 20.1510

APPENDIX A TO PART 20—CROSS-REFERENCES

Sec. Cross-reference Title of cross-referenced material or comment

20.1 .......... 38 CFR 3.103(a) ................ Statement of policy. 20.100 ...... 38 CFR 20.306 ................... Rule 306. Legal holidays. 20.200 ...... 38 CFR 20.201 ................... Rule 201. Notice of Disagreement.

38 CFR 20.202 ................... Rule 202. Substantive Appeal. 38 CFR 20.300–20.306 ...... See re filing Notices of Disagreement and Substantive Appeals.

20.202 ...... 38 CFR 19.29 ..................... Statement of the Case. 38 CFR 19.31 ..................... Supplemental Statement of the Case.

20.301 ...... 38 CFR 20.500 ................... Rule 500. Who can file an appeal in simultaneously contested claims. 38 CFR 20.602 ................... Rule 602. Representation by recognized organizations. 38 CFR 20.603 ................... Rule 603. Representation by attorneys-at-law. 38 CFR 20.604 ................... Rule 604. Representation by agents. 38 CFR 20.605 ................... Rule 605. Other persons as representative.

20.302 ...... 38 CFR 20.501 ................... Rule 501. Time limits for filing Notice of Disagreement, Substantive Appeal, and re-sponse to Supplemental Statement of the Case in simultaneously contested claims.

20.303 ...... 38 CFR 20.304 ................... Rule 304. Filing additional evidence does not extend time limit for appeal. 38 CFR 20.503 ................... Rule 503. Extension of time for filing a Substantive Appeal in simultaneously con-

tested claims. 20.305 ...... 38 CFR 20.306 ................... Rule 306. Legal holidays. 20.400 ...... 38 CFR 19.50–19.53 .......... See also re administrative appeals. 20.401 ...... 38 CFR 19.50–19.53 .......... See also re administrative appeals.

38 CFR 20.302–20.306 ...... See re time limits for perfecting an appeal. 38 CFR 20.501, 20.503 ...... See re time limits for perfecting an appeal in simultaneously contested claims.

20.500 ...... 38 CFR 20.713 ................... Rule 713. Hearings in simultaneously contested claims. 20.501 ...... 38 CFR 20.305 ................... Rule 305. Computation of time limit for filing.

38 CFR 20.306 ................... Rule 306. Legal holidays. 38 CFR 20.713 ................... Rule 713. Hearings in simultaneously contested claims.

20.502 ...... 38 CFR 20.305 ................... Rule 305. Computation of time limit for filing. 38 CFR 20.306 ................... Rule 306. Legal holidays. 38 CFR 20.713 ................... Rule 713. Hearings in simultaneously contested claims.

20.503 ...... 38 CFR 20.713 ................... Rule 713. Hearings in simultaneously contested claims. 20.504 ...... 38 CFR 20.713 ................... Rule 713. Hearings in simultaneously contested claims. 20.600 ...... 38 CFR 14.626 et seq ........ See also re representation.

38 CFR 20.602 ................... Rule 602. Representation by recognized organizations. 38 CFR 20.603 ................... Rule 603. Representation by attorneys-at-law. 38 CFR 20.604 ................... Rule 604. Representation by agents. 38 CFR 20.605 ................... Rule 605. Other persons as representative.

20.602 ...... 38 CFR 14.628 ................... Recognition of organizations. 38 CFR 14.631 ................... Powers of attorney. 38 CFR 20.100 ................... Rule 100. Name, business hours, and mailing address of the Board. 38 CFR 20.607 ................... Rule 607. Revocation of a representative’s authority to act. 38 CFR 20.608 ................... Rule 608. Withdrawal of services by a representative. 38 CFR 20.609 ................... Rule 609. Payment of representative’s fees in proceedings before Department of

Veterans Affairs field personnel and before the Board of Veterans’ Appeals. 38 CFR 20.610 ................... Rule 610. Payment of representative’s expenses in proceedings before Department

of Veterans Affairs field personnel and before the Board of Veterans’ Appeals. 20.603 ...... 38 CFR 14.629 ................... Requirements for accreditation of representatives, agents, and attorneys.

38 CFR 14.631 ................... Powers of attorney. 38 CFR 20.100 ................... Rule 100. Name, business hours, and mailing address of the Board. 38 CFR 20.606 ................... Rule 606. Legal interns, law students and paralegals. 38 CFR 20.607 ................... Rule 607. Revocation of a representative’s authority to act. 38 CFR 20.608 ................... Rule 608. Withdrawal of services by a representative. 38 CFR 20.609 ................... Rule 609. Payment of representative’s fees in proceedings before Department of

Veterans Affairs field personnel and before the Board of Veterans’ Appeals. 38 CFR 20.610 ................... Rule 610. Payment of representative’s expenses in proceedings before Department

of Veterans Affairs field personnel and before the Board of Veterans’ Appeals.

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Department of Veterans Affairs Pt. 20, App. A

Sec. Cross-reference Title of cross-referenced material or comment

20.604 ...... 38 CFR 14.631 ................... Powers of attorney. 38 CFR 20.100 ................... Rule 100. Name, business hours, and mailing address of the Board. 38 CFR 20.607 ................... Rule 607. Revocation of a representative’s authority to act. 38 CFR 20.608 ................... Rule 608. Withdrawal of services by a representative. 38 CFR 20.609 ................... Rule 609. Payment of representative’s fees in proceedings before Department of

Veterans Affairs field personnel and before the Board of Veterans’ Appeals. 38 CFR 20.610 ................... Rule 610. Payment of representative’s expenses in proceedings before Department

of Veterans Affairs field personnel and before the Board of Veterans’ Appeals. 20.605 ...... 38 CFR 14.630 ................... Authorization for a particular claim.

38 CFR 14.631 ................... Powers of attorney. 38 CFR 20.100 ................... Rule 100. Name, business hours, and mailing address of the Board. 38 CFR 20.607 ................... Rule 607. Revocation of a representative’s authority to act. 38 CFR 20.608 ................... Rule 608. Withdrawal of services by a representative. 38 CFR 20.609 ................... Rule 609. Payment of representative’s fees in proceedings before Department of

Veterans Affairs field personnel and before the Board of Veterans’ Appeals. 38 CFR 20.610 ................... Rule 610. Payment of representative’s expenses in proceedings before Department

of Veterans Affairs field personnel and before the Board of Veterans’ Appeals. 20.606 ...... 38 CFR 20.603 ................... Rule 603. Representation by attorneys-at-law. 20.607 ...... 38 CFR 14.631(d) .............. See also re revocation of powers of attorney. 20.609 ...... 38 CFR 14.629 ................... Requirements for accreditation of representatives, agents, and attorneys.

38 CFR 20.603 ................... Rule 603. Representation by attorneys-at-law. 38 CFR 20.604 ................... Rule 604. Representation by agents. 38 CFR 20.606 ................... Rule 606. Legal interns, law students and paralegals. 38 CFR 20.610 ................... Rule 610. Payment of representative’s expenses in proceedings before Department

of Veterans Affairs field personnel and before the Board of Veterans’ Appeals. 20.610 ...... 38 CFR 20.609 ................... Rule 609. Payment of representative’s fees in proceedings before Department of

Veterans Affairs field personnel and before the Board of Veterans’ Appeals. 20.611 ...... 38 CFR 1.525(d), 14.631(e) See also re continuation of authority conferred by powers of attorney upon the death

of a claimant. 20.701 ...... 38 CFR 20.710 ................... Rule 710. Witnesses at hearings. 20.702 ...... 38 CFR 20.704 ................... Rule 704. Scheduling and notice of hearings conducted by traveling Sections of the

Board of Veterans’ Appeals at Department of Veterans Affairs facilities. 38 CFR 20.713 ................... Rule 713. Hearings in simultaneously contested claims.

20.703 ...... 38 CFR 20.201 ................... Rule 201. Notice of Disagreement. 20.704 ...... 38 CFR 20.702 ................... Rule 702. Scheduling and notice of hearings conducted by the Board of Veterans’

Appeals in Washington, DC, and by agency of original jurisdiction personnel act-ing on behalf of the Board of Veterans’ Appeals at field facilities.

20.706 ...... 38 CFR 20.700(c) ............... See also re the presiding Member’s role in the conduct of hearings. 38 CFR 20.708 ................... Rule 708. Prehearing conference. 38 CFR 20.709 ................... Rule 709. Procurement of additional evidence following a hearing.

20.707 ...... 38 CFR 19.11 ..................... Reconsideration Section. 20.708 ...... 38 CFR 20.606(d) .............. See re the prehearing conference required when a legal intern, law student, or para-

legal is to participate in a hearing held before a traveling Section of the Board. 20.709 ...... 38 CFR 19.37 ..................... Consideration of additional evidence received by the agency of original jurisdiction

after an appeal has been initiated. 38 CFR 20.1304 ................. Rule 1304. Request for change in representation, request for personal hearing, or

submission of additional evidence following certification of an appeal to the Board of Veterans’ Appeals.

20.710 ...... 38 CFR 20.711 ................... Rule 711. Subpoenas. 20.711 ...... 38 CFR 2.1 ......................... See for further information on subpoenas, including action to be taken in the event

of noncompliance. 20.713 ...... 38 CFR 20.702 ................... Rule 702. Scheduling and notice of hearings conducted by the Board of Veterans’

Appeals in Washington, DC, and by agency of original jurisdiction personnel act-ing on behalf of the Board of Veterans’ Appeals at field facilities.

38 CFR 20.704 ................... Rule 704. Scheduling and notice of hearings conducted by traveling Sections of the Board of Veterans’ Appeals at Department of Veterans Affairs facilities.

20.715 ...... 38 CFR 20.706 ................... Rule 706. Functions of the presiding Member. 20.800 ...... 38 CFR 20.304 ................... Rule 304. Filing additional evidence does not extend time limit for appeal.

38 CFR 20.709 ................... Rule 709. Procurement of additional evidence following a hearing. 38 CFR 20.1304 ................. Rule 1304. Request for change in representation, request for personal hearing, or

submission of additional evidence following certification of an appeal to the Board of Veterans’ Appeals.

20.901 ...... 38 CFR 14.507 ................... See re opinions of the General Counsel of the Department of Veterans Affairs. 20.903 ...... 38 CFR 20.305 ................... Rule 305. Computation of time limit for filing.

38 CFR 20.306 ................... Rule 306. Legal holidays. 20.1003 .... 38 CFR 20.700(b) .............. See re submission of written brief and of oral argument on audio cassette. 20.1105 .... 38 CFR 3.156 ..................... New and material evidence.

38 CFR 3.160(e) ................ Reopened claim. 38 CFR 20.1304(b)(1) ........ See re request for a personal hearing or submission of additional evidence more

than 60 days after a case has been certified to the Board of Veterans’ Appeals as possible basis for a reopened claim.

20.1106 .... 38 CFR 3.22(a)(2) .............. See re correction of a rating, after a veteran’s death, based on clear and unmistak-able error, in cases involving claims for benefits under the provisions of 38 U.S.C. 1318.

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Sec. Cross-reference Title of cross-referenced material or comment

20.1300 .... 38 CFR 1.500–1.527 .......... See re the release of information from Department of Veterans Affairs claimant records.

38 CFR 1.550–1.559 .......... See re the release of information from Department of Veterans Affairs records other than claimant records.

38 CFR 1.575–1.584 .......... See re safeguarding personal information in Department of Veterans Affairs records. 38 CFR 20.1301 ................. Rule 1301. Disclosure of information.

20.1301 .... 38 CFR 1.577 ..................... Access to records. 20.1302 .... 38 CFR 20.611 ................... Rule 611. Continuation of representation following death of a claimant or appellant. 20.1304 .... 38 CFR 3.103(c), 20.700–

20.717.See also re hearings.

38 CFR 3.156 ..................... New and material evidence. 38 CFR 3.160(e) ................ Reopened claim. 38 CFR 20.305 ................... Rule 305. Computation of time limit for filing. 38 CFR 20.306 ................... Rule 306. Legal holidays.

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38 C.F.R. Pt. 20, App. A Page 1

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Code of Federal Regulations Currentness

Title 38. Pensions, Bonuses, and Veterans' Relief Chapter I. Department of Veterans Affairs (Refs

& Annos)

Part 20. Board of Veterans' Appeals: Rules of Practice (Refs & Annos)

APPENDIX A TO PART 20--CROSS-REFERENCES

Sec.

Cross-reference Title of cross-referenced material or comment

20.100 38 CFR 20.306 Rule 306. Legal holidays. 20.200 38 CFR 20.201 Rule 201. Notice of Disagreement. 38 CFR 20.202 Rule 202. Substantive Appeal.

38 CFR 20.300-20.306 See re filing Notices of Disagreement and Substantive Appeals.

20.202 38 CFR 19.29 Statement of the Case. 38 CFR 19.31 Supplemental Statement of the Case.

20.301 38 CFR 20.500 Rule 500. Who can file an appeal in simultaneously contested claims.

38 CFR 20.602 Rule 602. Representation by recog-nized organizations.

38 CFR 20.603 Rule 603. Representation by attorneys-at-law.

38 CFR 20.604 Rule 604. Representation by agents.

38 CFR 20.605 Rule 605. Other persons as representa-tive.

20.302 38 CFR 20.501 Rule 501. Time limits for filing Notice of Disagreement, Substantive Appeal, and response to Supplemental State-ment of the Case in simultaneously contested claims.

20.303 38 CFR 20.304 Rule 304. Filing additional evidence does not extend time limit for appeal.

38 CFR 20.503 Rule 503. Extension of time for filing a Substantive Appeal in simultaneously contested claims.

20.305 38 CFR 20.306 Rule 306. Legal holidays. 20.400 38 CFR 19.50-19.53 See also re administrative appeals. 20.401 38 CFR 19.50-19.53 See also re administrative appeals. 38 CFR 20.302-20.306 See re time limits for perfecting an

appeal. 38 CFR 20.501, 20.503 See re time limits for perfecting an

appeal in simultaneously contested

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38 C.F.R. Pt. 20, App. A Page 2

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claims. 20.500 38 CFR 20.713 Rule 713. Hearings in simultaneously

contested claims. 20.501 38 CFR 20.305 Rule 305. Computation of time limit

for filing. 38 CFR 20.306 Rule 306. Legal holidays.

38 CFR 20.713 Rule 713. Hearings in simultaneously contested claims.

20.502 38 CFR 20.305 Rule 305. Computation of time limit for filing.

38 CFR 20.306 Rule 306. Legal holidays.

38 CFR 20.713 Rule 713. Hearings in simultaneously contested claims.

20.503 38 CFR 20.713 Rule 713. Hearings in simultaneously contested claims.

20.504 38 CFR 20.713 Rule 713. Hearings in simultaneously contested claims.

20.600 38 CFR 14.626 et seq. See also re representation. 38 CFR 20.602 Rule 602. Representation by recog-

nized organizations. 38 CFR 20.603 Rule 603. Representation by attorneys-

at-law. 38 CFR 20.604 Rule 604. Representation by agents.

38 CFR 20.605 Rule 605. Other persons as representa-tive.

20.602 38 CFR 14.628 Recognition of organizations. 38 CFR 14.631 Powers of attorney.

38 CFR 20.100 Rule 100. Name, business hours, and mailing address of the Board.

38 CFR 20.607 Rule 607. Revocation of a representa-tive's authority to act.

38 CFR 20.608 Rule 608. Withdrawal of services by a representative.

38 CFR 20.609 Rule 609. Payment of representative's fees in proceedings before Department of Veterans Affairs field personnel and before the Board of Veterans' Appeals.

38 CFR 20.610 Rule 610. Payment of representative's expenses in proceedings before De-partment of Veterans Affairs field per-sonnel and before the Board of Veter-ans' Appeals.

20.603 38 CFR 14.629 Requirements for accreditation of rep-resentatives, agents, and attorneys.

38 CFR 14.631 Powers of attorney.

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38 CFR 20.100 Rule 100. Name, business hours, and mailing address of the Board.

38 CFR 20.606 Rule 606. Legal interns, law students and paralegals.

38 CFR 20.607 Rule 607. Revocation of a representa-tive's authority to act.

38 CFR 20.608 Rule 608. Withdrawal of services by a representative.

38 CFR 20.609 Rule 609. Payment of representative's fees in proceedings before Department of Veterans Affairs field personnel and before the Board of Veterans' Appeals.

38 CFR 20.610 Rule 610. Payment of representative's expenses in proceedings before De-partment of Veterans Affairs field per-sonnel and before the Board of Veter-ans' Appeals.

20.604 38 CFR 14.631 Powers of attorney. 38 CFR 20.100 Rule 100. Name, business hours, and

mailing address of the Board. 38 CFR 20.607 Rule 607. Revocation of a representa-

tive's authority to act. 38 CFR 20.608 Rule 608. Withdrawal of services by a

representative. 38 CFR 20.609 Rule 609. Payment of representative's

fees in proceedings before Department of Veterans Affairs field personnel and before the Board of Veterans' Appeals.

38 CFR 20.610 Rule 610. Payment of representative's expenses in proceedings before De-partment of Veterans Affairs field per-sonnel and before the Board of Veter-ans' Appeals.

20.605 38 CFR 14.630 Authorization for a particular claim. 38 CFR 14.631 Powers of attorney.

38 CFR 20.100 Rule 100. Name, business hours, and mailing address of the Board.

38 CFR 20.607 Rule 607. Revocation of a representa-tive's authority to act.

38 CFR 20.608 Rule 608. Withdrawal of services by a representative.

38 CFR 20.609 Rule 609. Payment of representative's fees in proceedings before Department of Veterans Affairs field personnel and before the Board of Veterans' Appeals.

38 CFR 20.610 Rule 610. Payment of representative's expenses in proceedings before De-

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38 C.F.R. Pt. 20, App. A Page 4

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partment of Veterans Affairs field per-sonnel and before the Board of Veter-ans' Appeals.

20.606 38 CFR 20.603 Rule 603. Representation by attorneys-at-law.

20.607 38 CFR 14.631(d) See also re revocation of powers of attorney.

20.609 38 CFR 14.629 Requirements for accreditation of rep-resentatives, agents, and attorneys.

38 CFR 20.603 Rule 603. Representation by attorneys-at-law.

38 CFR 20.604 Rule 604. Representation by agents.

38 CFR 20.606 Rule 606. Legal interns, law students and paralegals.

38 CFR 20.610 Rule 610. Payment of representative's expenses in proceedings before De-partment of Veterans Affairs field per-sonnel and before the Board of Veter-ans' Appeals.

20.610 38 CFR 20.609 Rule 609. Payment of representative's fees in proceedings before Department of Veterans Affairs field personnel and before the Board of Veterans' Appeals.

20.611 38 CFR 1.525(d), 14.631(e) See also re continuation of authority conferred by powers of attorney upon the death of a claimant.

20.701 38 CFR 20.710 Rule 710. Witnesses at hearings. 20.702 38 CFR 20.704 Rule 704. Scheduling and notice of

hearings conducted by traveling Sec-tions of the Board of Veterans' Appeals at Department of Veterans Affairs fa-cilities.

38 CFR 20.713 Rule 713. Hearings in simultaneously contested claims.

20.703 38 CFR 20.201 Rule 201. Notice of Disagreement. 20.704 38 CFR 20.702 Rule 702. Scheduling and notice of

hearings conducted by the Board of Veterans' Appeals in Washington, DC, and by agency of original jurisdiction personnel acting on behalf of the Board of Veterans' Appeals at field facilities.

20.706 38 CFR 20.700(c) See also re the presiding Member's role in the conduct of hearings.

38 CFR 20.708 Rule 708. Prehearing conference.

38 CFR 20.709 Rule 709. Procurement of additional evidence following a hearing.

20.707 38 CFR 19.11 Reconsideration Section.

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20.708 38 CFR 20.606(d) See re the prehearing conference re-quired when a legal intern, law student, or paralegal is to participate in a hear-ing held before a traveling Section of the Board.

20.709 38 CFR 19.37 Consideration of additional evidence received by the agency of original ju-risdiction after an appeal has been ini-tiated.

38 CFR 20.1304 Rule 1304. Request for change in rep-resentation, request for personal hear-ing, or submission of additional evi-dence following certification of an ap-peal to the Board of Veterans' Appeals.

20.710 38 CFR 20.711 Rule 711. Subpoenas. 20.711 38 CFR 2.1 See for further information on subpoe-

nas, including action to be taken in the event of noncompliance.

20.713 38 CFR 20.702 Rule 702. Scheduling and notice of hearings conducted by the Board of Veterans' Appeals in Washington, DC, and by agency of original jurisdiction personnel acting on behalf of the Board of Veterans' Appeals at field facilities.

38 CFR 20.704 Rule 704. Scheduling and notice of hearings conducted by traveling Sec-tions of the Board of Veterans' Appeals at Department of Veterans Affairs fa-cilities.

20.715 38 CFR 20.706 Rule 706. Functions of the presiding Member.

20.800 38 CFR 20.304 Rule 304. Filing additional evidence does not extend time limit for appeal.

38 CFR 20.709 Rule 709. Procurement of additional evidence following a hearing.

38 CFR 20.1304 Rule 1304. Request for change in rep-resentation, request for personal hear-ing, or submission of additional evi-dence following certification of an ap-peal to the Board of Veterans' Appeals.

20.901 38 CFR 14.507 See re opinions of the General Counsel of the Department of Veterans Affairs.

20.903 38 CFR 20.305 Rule 305. Computation of time limit for filing.

38 CFR 20.306 Rule 306. Legal holidays.

20.1003 38 CFR 20.700(b) See re submission of written brief and of oral argument on audio cassette.

20.1105 38 CFR 3.156 New and material evidence.

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38 C.F.R. Pt. 20, App. A Page 6

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38 CFR 3.160(e) Reopened claim.

38 CFR 20.1304(b)(1) See re request for a personal hearing or submission of additional evidence more than 60 days after a case has been certified to the Board of Veterans' Ap-peals as possible basis for a reopened claim.

20.1106 38 CFR 3.22(a)(2) See re correction of a rating, after a veteran's death, based on clear and un-mistakable error, in cases involving claims for benefits under the provisions of 38 U.S.C. 1318.

20.1300 38 CFR 1.500-1.527 See re the release of information from Department of Veterans Affairs claim-ant records.

38 CFR 1.550-1.559 See re the release of information from Department of Veterans Affairs records other than claimant records.

38 CFR 1.575-1.584 See re safeguarding personal informa-tion in Department of Veterans Affairs records.

38 CFR 20.1301 Rule 1301. Disclosure of information.

20.1301 38 CFR 1.577 Access to records. 20.1302 38 CFR 20.611 Rule 611. Continuation of representa-

tion following death of a claimant or appellant.

20.1304 38 CFR 20.700-20.717 See also rehearings. 38 CFR 3.156 New and material evidence.

38 CFR 3.160(e) Reopened claim.

38 CFR 20.305 Rule 305. Computation of time limit for filing.

38 CFR 20.306 Rule 306. Legal holidays.

[76 FR 52575, Aug. 23, 2011] SOURCE: 57 FR 4109, Feb. 3, 1992; 64 FR 73414, Dec. 30, 1999, unless otherwise noted. AUTHORITY: 38 U.S.C. 501(a) and as noted in specific sections. 38 C. F. R. Pt. 20, App. A, 38 CFR Pt. 20, App. A Current through December 15, 2011; 76 FR 77913. © 2011 Thomson Reuters

END OF DOCUMENT

ADD-46

RULES AND REGULATIONS

Ascending boats, while waiting their turnto enter, must keep out far enough to.give boats leaving the lock free passagebetween them and the pile clusters orriverbank.

(h) Entrance to and exit from locks.In case two or more boats or tows areto enter for the same lockage, theirorder of entry shall be determined by thelock officer or his authorized agent. Noboat shall attempt to run ahead ofanother while in a lock. The boat thatenters first shall have precedence in exit.

(i) Unnecessary delay at locks. (1)Vessels must not obstruct navigation byunnecessary delay in entering or leavinglocks. Masters and pilots will be held toa strict accountability in this respect.Boats or other craft failing to enter lockswith reasonable promptness after beingsignaled to do so will lose their turn.

(2) Boats arriving in the entrance tothe locks with their tows so shaped as

-not'to facilitate locking, or in a leakycondition, may, in the discretion of thelockmaster, lose their turn.

(3) Leaky boats may be excluded fromthe locks until they are put in shape tobe safely passed.

(j) Mooring in locks. Steamboats andother craft, when in the locks, shall bemoored where directed by the lock officer,by bow, stem, and spring lines to thesnubbing posts or hooks provided forthat purpose. Tying boats to the lockladders is strictly prohibited.

(k) Handling of boats and rafts. Thecaptains in charge of tows and those incharge of rafts must provide sufficientmen to move barges and rafts in and outof the locks without unnecessary delay.

(1) Protection of lock gates. Boats willnot be permitted to enter or leave thelocks until the lock gates are fully in thegate recesses and the lock officer hasdirected the boat to start.

(m) Damage to locks or other struc-tures. This section shall not affect theliability of the owners and operators ofboats for any damage caused by theiroperations to locks or other structures.The sides of all craft passing throughlocks must be free from projections ofany kind or sharp comers which mightinjure the walls. Steamboats must beprovided with suitable fenders. One manshall be kept at the head of every towuntil it has cleared the lock and guidewalls. He shall use fender to protectwalls and use pike pole to help pass driftor ice while in the vicinity of lock.

(n) Handling machinery. None butemployees of the United States for thepurpose will be allowed to move anyvalves, gate, or other machinery belong-ing to the locks, but the lockmaster orhis assistant may call for assistancefrom the master of any boat using the.locks, should such aid be necessary, andwhen rendering such assistance the menso employed shall be strictly under theorders of the lockmaster or his assistant.

(o) Refuse in locks. The placing ofany ashes, refuse, or obstructions in theentrance of locks or in the locks, or onthe walls thereof, is prohibited.

(p) Commercial statistics. Masters orclerks of boats shall furnish in writing

to lock officers such statistics of pas-sengers and cargoes as may be required.

(q) Trespass on lock property. (1)The landing of freight or baggage on thelock walls or lock grounds will not beallowed, except for the use of the Gov-ernment or its employees.

(2) Trespass on lock property or in-jury to the entrance, banks, cribs, locks,fences, trees, houses, shops, or otherproperty of the United States pertain-ing to the locks is strictly prohibited.

(r) Penalties. In addition to the pen-alties prescribed by the Act of Congresspreviously quoted, boats which fall tocomply with paragraphs (a) to (q) ofthis section will be refused lockage untilthey are complied with.

(s) Lights. (1) Except when sub-merged, each lock and adjacent pier ofthe dam will be lighted from sunset tosunrise without regard to the moon. Awhite light on the pier and a red lighton the lock will indicate that the damis navigable between the lights and thelock is not. A red light on the pier anda white light on the lock will indicatethat the lock is navigable and the damis not. A white light on both pier andlock will indicate that both dam andlock are navigable, the dam between thelights only. A red light on both pier andlock are navigable, the dam between thedam is navigable. Red and white lightson the lock will be exposed on the riverwall at its junction with the dam. Thedownstream end of the river wall willbe marked by a green light.

(2) When lock and piers are sub-merged, and for locks where the riverconfiguration will permit, a white lightwill be exposed on the bank, both aboveand below the lock, the two lights de-fining a line crossing the dam at themiddle point of the navigation pass. Inother cases, when locks and piers aresubmerged, two red lights will be ex-posed, one above the other, on the bankat the upstream end of the land wall ofthe lock.

t) Raising or lowering dams. Whena dam is being raised or lowered allpassing craft must use the lock untilsignaled that the pass is clear, and de-scending boats or tows desiring to gothrough the navigation pass must remainabove the head of the lock until sig-naled to proceed.

u) Avoidance of dams. When damsare raised all boats plying in upperpools, but not intending to enter lock,are forbidden to approach nearer todams than a line extending across theriver from the pile cluster fartherestupstream from lock.

(v) Damage to construction work. Toavoid damage or hindrance by waveaction to plant or structures connectedwith the construction or repair of locksand dams, during the time when suchwork is in actual progress, steamboatsshould regulate their speed between thelower line of such work (includingplant) and a point 500 yards abovethe upper line of work. Between suchlimits, ascending boats will reduce theirspeed to not exceed 3 miles per hour,and descending boats will reduce their

speed to 3 miles in excess of the cur-rent, which may be exceeded if thewheel is Idle.

(w) Complaints. Complaints or othercommunications relating to the navi-gation of the Ouachita-Black RiverSystem or the maintenance and opera-tion of the locks, dams, and bridgesshould be addressed to the U.S, ArmyEngineer District, Vicksburg, Vicksburg,Miss.

(x) Vessels to carry regulations, Acopy of the regulations of this sectionwill be furnished to masters of boatson application to lock officers,[Regs. July 5, 1972, 1622-01 (Ouachita andBlack Rivers, Arkansas-Loulslana) DAEN-CWO-N] (Sec. 7, 40 Stat. 266; 33 U.S.C. 1)

For the Adjutant General.R, B. BELNAP,

Special Advisor to TAG,[FR Doc.72-11445 Filed 7-24-72;8:61 nml

Title 38-PENSIONS, BONUSES,AND VETERANS' RELIEF

Chapter I-Veterans Administration

PART 3-ADJUDICATION

Subpart A-Pension, Compensation,and Dependency and IndemnifyCompensation

DUE PROCESS AND APPELLATE RIGHTSOn page 10745 of the FEDERAL REGISTR

of May 27, 1972, there was published anotice of proposed rule malng to Issue arekulation concerning duo process andappellate rights. Interested persons weregiven 30 days in which to submit com-ments, suggestions, or objections regard-ing the proposed regulations.

No written objections have been re-ceived and the proposed regulation ishereby adopted without change and Is setforth below.

Effective date. This VA regulation Iseffective the date of approval.

Approved: July 18, 1972.By direction of the Administrator.[SEAL] 1IFED B. RIIoDES,

Deputy Administrator.Section 3.103 of Part 3 of Title 38 19

amended to read as follows:§ 3.103 Due process-procedural and

appellate rights with regard to di1.ability and death benelits and relatedrelief.

(a) Statement of policy. Proceedingsbefore the Veterans Administration areex parte in nature. It is the obligationof the Veterans Administration to assisa claimant in developing the facts per-tinent to his claim and to render a de-cision which grants him every benefitthat can be supported In law while pro-tecting the interests of the Government,This principle and the other provisionsof this section apply to all claims forbenefits and relief and decisions thereonwithin the purview of this part.

FEDERAL REGISTER, VOL. 37, NO. 143-TUESDAY, JULY 25, 1972

14780

ADD-47

RULES AND REGULATIONS

(b) Submission of evidence. Any evi-dence whether documentary, testi-monial, or in other form, offered by aclaimant In support of a claim and anyissue he may raise and contention andargument he may offer with respectthereto are to be included in therecords.

(c) Hearings. Upon request a claim-ant is entitled to a hearing at any timeon any issue involved in a claim withinthe purview of this part. The VeteransAdministration will provide the place ofhearing in the Veterans Administrationoffice having original jurisdiction over theclaim or at the Veterans Administrationoffice nearest his home having adjudica-tive functions and will provide VeteransAdministration personnel who have orig-inal determinative authority of such is-sues to be responsible for the preparationof the transcript; however, further ex-penses involved will be the responsibilityof the claimant. The claimant is entitledto produce witnesses and all testimonywill be under oath or affirmation. Thepurpose of such a hearing is to permit theclaimant to introduce into the recordin person any evidence available to himwhich he may consider material and anyarguments and contentions with respectto the facts and applicable law whichhe may consider pertinent. It is the re-sponsibility of the Veterans Administra-tion personnel conducting the hearingto explain fully the issues and to suggestthe submission of evidence which theclaimant may have overlooked and whichwould be of advantage to his position.It is their further responsibility to estab-lish and preserve the record. Because ofthis and to assure clarity and under-standing therein, questions which aredirected to the claimant and to witnessesare to be framed to explore fully thebasis for claimed entitlement ratherthan with an intent to refute evidenceand to discredit testimony. !n cases inwhich the nature, origin, or degree ofdisability is in issue, the claimant mayrequest visual examination by the physi-cian designated by the Veterans Admin-istration as a participant in the hearingand his observations will be read intothe record.

(d) Representation. Within the pro-visions and criteria of § 14.626 through14.663 of this chapter a claimant is en-titled to representation of his choice atevery stage in the prosecution of a claim.

(e) Notification of decisions. Theclaimant will be notified of any decisionaffecting the payment of benefits orgranting relief. Notice will include thereason for the decision and the date itwill be effectuated as -well as the rightto a hearing subject to paragraph (c) ofthis section. The notification will also ad-vise the claimant of his right to initiatean appeal by filing a Notice of Disagree-ment which will entitle him to a State-ment of the case for his assistance inperfecting his appeal. Further, the noticewill advise him of the periods in which anappeal must be initiated and perfected.(See Part 19, Subpart B of this chapteron appeals.)

[FR Doc.72-11490 Filed 7-21--72;8:561

Title 39-POSTAL SERVICEChapter I-U.S. Postal Service

PART 126-MAIL ADDRESSED TOMILITARY POST OFFICES OVERSEAS

Conditions Prescribed by DefenseDepartment

Section 126.2 of Title 39, Code of Fed-eral Regulations, is revised in order tolist therein all overseas military postoffices, and to update restrictions appli-cable to certain military post offices.

Accordingly, § 126.2 is amended to readas follows:§ 126.2 Conditions prescribed by the

Defense Department applicable tomail addressed to certain militarypost offices overseas.

09001.. B- - 1 09139. B-C-D09002-. B-C-I' 09140.. B-C-D09008.. B-C-fl 09141.. B-C-D009__ B-C-D 09142.. B-C-D09011.. B-C 09144-. B--fD09012.. B-C-D 09146.. B-C-fl09013__ B-C-fl 09149-. B-C-D09019.. B-C-I1 09150- A-B'-C09020.. B 09154.. B-C-D09023 09155.. A-B09025. B-C-D 09159. B-C09026., B-C-f 09160.. B-C-D09028. B-C-D 09161.. 3-09029.. B-C-D 09162.. B-C-D09031.. B-C-D 09164.. B-C-f09033.. B-C-D 09165.. B-C-D09034.. B-C-D 09166.. B-C-D09035., B-C-D 09168__ B-C-I"z

09036.. B-C-fl 09169.. B-C-D09038. B-P-I-R 09170.. C-D-N09039, B-C-D 09171-. B-C-fl09040-- A-B-F-I 09172-. B-C-D09045. B-C-D 09173- B-C-D09046... B-C-D 09175- B-C-D09047__ B-C-D 09176.. B-C-D09048-- A-BO-C 09177.. B-C-D09050.. B-C-D 09178.. B-C-D09051.. A-B-F- 09179.. A-B*-C09052.. B-C-D 09180.. B-C-D09053-. B-C-D 09184-. B-C-D09054.. B-C-D 09185.. B-C-D09055.. Be 09189.. B-C-D09056.. B-C-D 09193.. A-Be-C09057.. B-C-D 09194. A-B-O09058.. B-C-D 09205. A-B09059.- B-C-D 09210.- A-B-C09060-- B-C-D 09218- A-B-09061__ B-C-D 09220_ B-C-f09066.. B-C-D 09221. B-C-Il09067.. B-C-D 09223.. A09068- B-C-D 09224. A-B-F-I09069.. B-C-D 09227.. B-C-D09070.. B-C-D 09238. A-BO-C09074- B-C-D 09240. B-C-I I09075-- A-B'-C 09245.. B-C-f09078, B-C-D 09252.. B-G-D09079-- B-C-D 09253- A09080.- B-C-D 09254. A-B-F-I09081.. B-C-D 09277.. B-C-fl09082-. B-C-D 092I1 B-C-D09085 0928209086.. B-C-fl 092309088.. Be 0928409090. B-C-D 0928509091. B-C-D 092BG09093__ B-C-fl 9239_. A-B-F-I09095.. B-C-D 0929L-- A09098_. B-C-D 09292.. B-O09099.- B-C-D 09293.. B-C-Il09101L_ B-C-D 09294.. A-B-F-I09102.. B-C-D 09205.. B-C-D09107.. B-C-D 09319.. B-C-fl09108., B-C-D 09320-. A-B-F-I09109.. B-C-D 09322.. B-C-D09111_. B-C-fl 09324- A-B-F-I09114__ B-C-fl 09320.. B-C-D09120.. A-BO-0 09330.. B-C-D09121 09332. B-C-D09123.. B-C-D 09333.. B-C-D09125_._ A-B*-C 09351.. B-C-D09127.. A-B*-C 0-1352.. B-C-f09128._ B-C-fl 09353.. B-C-D09130_. B-C-f) 09360.. B-C-fl09131.. B-C-D 09378- A-B-009132. B-C-D 09380_ A-B-P-I09133.. A-B-F- 0940109137. B-C-fl 09403. B-C-D09138__ B-C-D 09405- A-BO-O

See footnotes at end of document.

0940609407-. B-C-fl09411-. B-C-D09451-. B-C-D094520945409501095M20950509510.. A-B,-C-J09511-. A-BO-C-J09512.. A-B-C-J09513.. A-C-fl09514.. A-C-D09515.. A-Be-C-J09516- A-B'-C-I-J09517.. A-C-D09518. A-Bo-C-J09520.. A-C-I09521- A-C-I109522.- A-C-.I09523- A-C- 1 109524- A-C-I109525- A0952609527.. A-N09528.. A09529.. A-C-X0953009531-.- A-B-C-F-M0954009544. A-B-C-B0954609550095510955205309554

09555

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09690_ A09692.. B-C-fD

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09702.. B-C-D09742- B-C-D09743.. B-C-D09751. B-C-fl09755. A-B-C0757. B-C-fl0917.- A-B-C-B09724... B-C..1109801.. B-C-D09307. B-C-D09 25. B

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09383.. B-I-I-N093a35 21

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08204... A-P96205 . A-P9208.. A-B06209.. A-B-H06210.. A-B-CE96211.. A-B96212. A-B96213.. A-B96215- A-P96217_ A-P9=8 A-B96220- A-B96=.- A-P96222.. A-P98224.. A-B962 7. A-796230.. L96231. A-B962329623396234. A-P96235962=6. r9623796239

40 . A-F96243.. A-P982459624896251.. A-B96256. A-P9825 7. A-P96253.. A-F96259.. A-B96280.. A-79628196263... F I9624-_. A-B98268 A-P

7.. A-B-I96263.. A-P9=0- A-B-IC96-2-_ A-B

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96310

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96332.. A-F

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96356

FEDERAL REGISTER, VOL 37, NO. 143-UESDAY, JULY 25, 1972

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Federal Register / Vol. 48, No. 34 / Thursday, February 17, 1983 / Rules and Regulations

CIVIL AERONAUTICS BOARD

14 CFR Part 254

[Dockets 40366, 38621; ER-1305-A]

Domestic Baggage Liability

AGENCY: Civil Aeronautics Board.ACTION: Stay of effective date of finalrule.

SUMMARY: The CAR is staying theeffective date of its domestic baggageliability rule in order to more fullyconsider issues raised in a petition bycertain members of the Air TransportAssociation to repeal the rule prior to itseffective date. Pending completion ofthis new rulemaking, the currentlyeffective baggage orders (without theirtariff-filing requirement) will remain ineffect.DATES:

Adopted: February 8, 1983.Effective: February 8, 1983.

FOR FURTHER INFORMATION CONTACT.Joanne Petrie, Office of the GeneralCounsel, Civil Aeronautics Board, 1825Connecticut Avenue, NW., Washington,D.C. 20428; 202-673-5442.SUPPLEMENTARY INFORMATION:Accordingly, the Civil AeronauticsBoard suspends the February 22, 1983,effective date of 14 CFR Part 254, issuedas ER-1305, 47 FR 52987, November 24,1982. Currently effective baggage orders,but without tariff-filing requirements,will remain in effect until further notice.

(Sec. 204, 403, 404, and 411, Pub. L 85-726, asamended, 72 Stat. 743, 758, 760, 769; 49 U.S.C.1324, 1373, 1374, 1381)

By the Civil Aeronautics Board.Phyllis T. Kaylor,Secretary.[FR Dec. 83-4165 Filed 2-16-83;845 am]

BILLING CODE 6320-01-1

DEPARTMENT OF HOUSING ANDURBAN DEVELOPMENT

Office of Assistant Secretary forHousing-Federal HousingCommissioner

24 CFR Parts 804,805,860, 880,881,882,883,884 and 886

[Docket No. R-82-10451

Reexamination of Family Income forthe Public Housing and Section 8Housing Assistance PaymentsPrograms

AGENCY: Assistant Secretary forHousing-Federal HousingCommissioner, HUD.

ACTION: Final rule; notice of effectivedate.

SUMMARY: This document announces theeffective date for the final rule publishedin the Federal Register on December 2,1982 (47 FR 54293) which implementstwo statutory changes requiringreexamination of family income "no lessfrequently than annually" under HUD'sPublic Housing and Section 8 HousingAssistance Payments Programs. Theeffective date provision of the rulestated that the rule would becomeeffective upon expiration of the firstperiod of 30 calendar days of continuoussession of Congress after publication,but not before publication of furthernotice of the effective date in theFederal Register. Based on the presentCongressional schedule, it is expectedthat the 30-session-day period willexpire during March 1983.EFFECTIVE DATE: The effective date forthe final rule published December 2,1982 at 47 FR 54293 is April 1, 1983.FOR FURTHER INFORMATION CONTACT.Edward Whipple, Office of PublicHousing, (202) 426-0744; James Tahash,Program Planning Division, Office ofMultifamily Management, (202) 755-5654; or Steven Silvert, Office of StateAgency and Bond Financed Programs,(202) 755-7177; Department of Housingand Urban Development, Washington,D.C. 20410. These are not toll-freetelephone numbers.

Dated: February 10, 1983.Grady J. Norris,Assistant General Counsel for Regulations.[FI Doc. 83-4111 Filed 2-16-83; 8:46 am]

BILUNG CODE 4210-27-M

VETERANS ADMINISTRATION

38 CFR Part 19

Appeals Regulations; Rules of Practice

AGENCY: Veterans Administration.ACTION: Final regulations.

SUMMARY: The Veterans Administrationis amending the Appeals Regulations ofthe Board of Veterans Appeals to add anew regulation regarding appellatejurisdiction of determinations of theDepartment of Medicine and Surgery.The Board of Veterans Appeals Rules ofPractice have also been revised in orderto clarify existing practices before theBoard of Veterans Appeals.EFFECTIVE DATE: January 1, 1980.FOR FURTHER INFORMATION CONTACT.Mr. Jan Donsbach (01C), Special (Legal)Assistant to the Chairman, Board ofVeterans Appeals, 810 Vermont Avenue

N.W., Washington, D.C. 20420 (202-389-2978).SUPPLEMENTARY INFORMATION: Onpages 56093-56104 of the FederalRegister of August 22, 1980, there waspublished a notice of proposedrulemaking to amend Part 19.

Interested persons were given 30 daysin which to submit comments regardingthe proposal. The VeteransAdministration received manysuggestions. The comments, and ouraction on those comments are listedbelow. We have first addressed thosecomments of a general nature which donot relate to a specific rule or appealsregulation. The comments relating tospecific rules or regulations followthereafter.

One organization expressed theopinion that the proposed additionalrules have the effect of strengthening theinsulation of the VeteransAdministration from outside advocacy.In formulating these new rules, as wellas revising existing rules, the aim was toclarify as much as possible the existingprocedures for appeals. The proposedrules were developed to assistrepresentatives who were not employedby major service organizations and whohave not had many years of experiencepracticing before the Board in presentingtheir appeals before the Board and alsoto assist those appellants whospecifically did not desirerepresentation. Contrary to thecommenter's opinion, these rules willencourage greater participation by alladvocates.

A group criticized the rules for beingtoo technical and legalistic and claimedthat they created more formal andcomplex procedures. This was believedto work to the disadvantage ofunrepresented appellants. There is littlecomplex legal terminology used in the.rules. Confusing terminology wasdefined and clarified, as suggested bysome commenters. Furthermore, Rule1(c) guarantees that the Rules ofPractice will be interpreted in a mannermost favorable to the appellant.

One group suggested that a rule beadded requiring that claimants benotified that the filing of a notice ofdisagreement might result in reducedbenefits and that the Board of VeteransAppeals does not traditionally reducebenefits. This comment could be viewedas influencing the claimant as towhether to appeal and is not propersubject matter for these rules. This arearelates in particular to those subjectsnormally discussed between claimantand representative.

Comments were received requestingthat processing times for preparation of

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6962 Federal Register / Vol. 48, No. 34 / Thursday, February 17, 1983 / Rules and Regulations

hearing transcripts and decisions beadded to the rules. In an effort todecrease the processing time of anappeal where a hearing has been held,the Board of Veterans Appeals is nolonger preparing hearing transcriptsunless specifically requested to do so.See Rule 68(al. The average processingtime of an appeal from date ofcertification to the Board of VeteransAppeals to the date of a final appellatedecision is currently 220 days. Thecurrent processing time is the result ofan unprecedented interest in appealingagency of original jurisdictiondeterminations and staffing limitationsat the Board. Therefore, setting aspecific processing time, such as 45days, is unrealistic. The preparation andreview of appellate decisions ismonitored under strict workmeasurement standards. Accordingly,appeals are disposed of as quickly aspossible.

It was suggested that a comparision ofthe terms "harmless error," "sufficientcause," and "good cause" be made. Seethe comments under Rule 91 for adiscussion of harmless error and Rule 6for good cause. The term "sufficientcause," which was used in Rule 75, hasbeen changed to "good cause."Examples of good cause have beenincluded in Rule 6. As is shown by thedefinitions of "harmless error" and"good cause" in the rules, they haveentirely different meanings, are appliedin entirely different circumstances, andcannot be compared.

The appeals regulations have beenrenumbered so they fall in a morelogical sequence. Former § § 19.2, 19.3,19.4, 19.5 and 19.6 are now designated as§ § 19.5, 19.2, 19.6. 19.4 and 19.3,respectively. However, to make it easierto correlate the comments on theproposed regulations with theregulations as they appeared then, wehave used the old numbering sequencein addressing those comments and havemade cross-references to the newregulation numbers.

Section 19.1. A comment was receivedto the effect that the phrase "to apply allthe adjudicative criteria" was unclear.This phrase basically means that theBoard has the authority to apply all theadjudicative criteria as contained in theregulations of the agency, instructions ofthe Administrator and precedentopinions of the General Counsel. Sincethe Board is already bound by theseadministrative issues, the p5rase itself isunnecessary. A new paragraph (h) hasbeen added concerning appeals as tojurisdiction.

Section 19.2. This regulation is nownumbered as § 19.5. Comments werereceived that the role and authority of

the Vice Chairman should be clarified,as well as the term "administrativeaction" in paragraph (b).

Section 19.3. This regulation is nownumbered as § 19.2. A request was madethat the Board list those particularissues over which it had no jurisdiction.The current list of subject matter is verylengthy and an additional list overwhich the Board had no appellatejurisdiction would only tend to, furtherconfuse the regulation. Furthermore, Itcould be incorrectly assumed that aparticular issue which was not listed asbeing exempt would be under heBoard's jurisdiction. This regulation wasalso criticized because of a lack ofcitations and unusual terminology; it hasbeen rephrased to simplify thedescriptions.

The issue of reduction or increase incompensation or pension benefits hasbeen deleted from this regulation since itis contemplated that these issues areincluded in determinations as to serviceconnection and pension. Issues relatingto emergency officers' retirementbenefits (Section 11, Pub. L. 85-857),adjusted compensation (Section 12(b),Pub. L 85-857) and unemploymentcompensation have been deleted sincethese particular issues are rarelycertified to the Board and their inclusionwould only unduly lengthen thisregulation.

Section 19.4. This regulation has beenrenumbered as § 19.6. This regulationwas misconstrued by one group ascreating a presumption againstdisclosure of information contained inappellate decisions and statements ofthe case. It was felt that the regulationwas in violation of the Privacy Act. Thisregulation was not intended to create apresumption against disclosure ofinformation. To the contrary, it is thepolicy of the Board of Veterans Appealsto release a full text of all appellatedecisions. There are a few cases dealingwith medical matters and confidentialrecords for which it would be ill-advisedto release such information directly tothe appellant. However, the regulationauthorizes disclosure of a full-textdecision to the designatedrepresentative. The only exception iswhere a close relationship existsbetween the appellant andrepresentative, e.g., those situationswhere the representative for theappellant is either the spouse or aparent. The Privacy Act exempts certainmedical information from directdisclosure to a requester and allows athird-party physician to discuss suchinformation with the requester. Thisregulation is revised in order tc clarifythe policy of the Board of VeteransAppeals and to add a cross-reference to

the agency's regulation concerningaccess to records under the Privacy Act.

Section 19.5. This regulation is nownumbered as § 19.4. A 'question wasraised as to what is meant by "review ordetermination" in this regulation. Theregulation has been revised to make thisclearer.

Section 19.8. This regulation has beenrenumbered as § 19.3. Comments werereceived suggesting a stylistic revisionof this regulation for clarity. Thatrevision has been accomplished. Thesubstance of the regulation has notchanged.

Rule 1. The citation of 38 U.S.C. 4002was questioned; however, this sectionauthorizes a Board member to make adetermination on any proceedingsinstituted before the Board and anymotion in connection therewith. It wassuggested that any special procedurewhich is prescribed should be consistentwith title 38, United States Code, andthese rules. This language has beenadded.

Rule 2. Objection was taken to theexception for applying the new Rules ofPractice on the basis that the standardwas too vague. In order to clarify theapplication of these Rules, January 1,1980 will be used as the effective date.The January 22, 1964 version of theRules of Practice, as aihended, willapply to all claims filed before January1, 1980.

Rule 3. It was suggested that privatemedical evidence and independentmedical expert opinions be given moreconsideration by the Board as theyoriginate from nongovernment medicalsources. 38 U.S.C. 4009 specificallycategorizes these opinions as advisory.The regulation is merely consistent withthat section and points out to the publicthat the various medical opinions areadvisory in nature. The function of theBoard as set out in 38 U.S.C. 4004 is tomake a decision based on all theevidence of record. It is notcontemplated that a private physicianshould make this decision. Privatemedical evidence as well as all otherevidence of record is considered in thedeliberations of the Board.

It was suggested that the agency'smanuals, circulars and similaradministratie issues not approved bythe Administrator be promulgated inaccordance with the AdministrativeProcedure Act and the Freedom ofInformation Act. The subject matter ofthe Rules of Practice does not relate tothe promulgation of manuals or circularsand administrative issues not approvedby the Administrator. Furthermore, thepurpose of Rule 3 is to stress the fact

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Federal Register I Vol. 48, No. 34 / Thursday, February 17, 1983 / Rules and Regulations

that these particular issues are notbinding upon the: Board.

Several commenters requestedclarification as to what constitutes aGeneral Counsel precedent opinio.General Counsel opinions. havegenerally been understood to apply, at aminimum, to opinions which have beenpublished and are available for widedissemination. Internal General Counselguidelines governing opinions ensurethat only those which formulate a new]2olicy requiring a change in regulation;interpret a new statute; expand upon,clarify, or depart from a prior decision:have timely significance; or examinesuch a difficult question as to haveprecedential value to the office ofGeneral Counsel are to be selected fordigesting or publication. GeneralCounsel Memorandum No. 02-76-3(1976). Published opinions should betreated as generally applicableprecedents. In reference to a comment,the indexing of General Counselopinions under the provisions of theFreedom of Information Act is notappropriate subject matter for theserules.

Rule 4. Suggestions which assisted inclarifying this rule were adopted.

Rule 6. Suggestions were receivedwith respect to other examples of goodcause. Some of these have beenincluded in the revision Of thisregulation. It was also felt that theappellant and representative should beseparately notified when a motion hasbeen granted to advance a case on thedocket. Inasmuch as any case which isadvanced on the docket of the Board ofVeterans Appeals is expedited, notifyingthe appellant and representative that themotion has been granted would simplydelay processing of the appeal andwould only reach the appellant andrepresentative at most a day or twobefore the actual decision. However; theregulation has been expanded to requirethat an appellant and representativebenotified when a motion to advance acase on the docket has been denied.

Rule 9. It was suggested that Rule 9 berevised to require a psychiatrist heincluded on a review panel when a caseinvolves mental disability. The BEard ofVeterans Appeals handles many casesinvolving medical specialties, It is notalways possible to include in a sectionof the Board a phy sician who is aspecialist in the particular diseasewhich is at issue. However, the Boardhas access to specialists withia theVeterans Administration and inaccredited medical schools who canoffer expert medical advice.

Rule 11. Suggesticns regardingclarification of this rule were made andadopted.

Rule 13. A. comment was made thatthe waiver of the fees for copyingevidence of record during a pendingappeal should be mandatory rather thandiscretionary. Neither statute noragency regulation prohibits the chargingof fees. Thus, any waiver of the feeshould be subject to the discretion of theofficial.

It was requested that a rule beincorporated governing the right of anappellant to gain access tor the file andto receive notice regarding documentsadded to the file. It is felt that theBoard's rule with respect to copyinginformation and access to the claimsfolder by appellants and theirrepresentatives sufficiently takes care ofthis. The laws and regulations governingstatements of the case and supplementalstatements of the case provide forautomatic notification to the appellantand representative anytime pertinentevidence is added to the claims, folder.The only exception would be whenevidence is submitted and added to theclaims folder by the appellant and/orrepresentative. The Rules of Practicealso contain procedures for notifying theappellant or representative anytime anadvisory opinion is obtained and affordsthe appellant or representative a periodof time within which to respond. It wasalso suggested that Rule 13 be expandedto note the existence of the Board'sIndex to Appellate Decisions and thecollection of the Board's appellatedecisions. Rule 100 was added to informthe public of the existence of the BVAIndex to Appellate Decisions (BVAIndex 1-01-1).

Rule 14. Questions were raised withrespect to perfecting an. appeal. It wasrequested that the notification of theright to appeal should includeinformation about the next step in theappeal. VA Form 1-4107 is used tor notifyclaimants of the right to appeal and thetime limits. This form describes theappellate procedure and the "next step"of filing a notice of disagreement whichinitiates the appeal. The, VA hasinterpreted appeals notificatio2 tainclude information concerning Piing anotice of disagreement. We have added,/a cross-reference to Rule 17 which setsforth what constitutes an appeal. Wehave also split Rule 14 into two ru!es.Former paragraph (al is still part of Rule14 while former paragraphs (bl and (clare now included in Rule 15. Rule 14 hasalso been amended to show that theagency's notification of appellate rightsincludes notification cf the right to ahearing and to representation.

Rule 15. Comments were receivedexpressing concern over an apparentinconsistency between Rules 14 and 15.In view of the agency's self-imposed

notification rule, prior Rule 15 is beingdeleted to avoid any ambiguity. Rule 15now discusses notification of the right toappeal contested claims andadministrative appeals (formerly Rule 14(b) and (c).

Rule 17 It was suggested that Rule 27be made part of Rule 17 and that therebe additional cross-references in thisrule as to timeliness and where to file anotice of disagreement. As requested,additional cross-references to-Rules 27and 29 were added.

Rule 19. Stylistic suggestions whichclarified this rule were adopted.

Rule 20. One group suggested that thestatement of the case should include aspecific discussion of all of the issues orcontentions raised by the appellant, therelevant operative facti, and the legal,medical or other bases upon which thedetermination of the Regional Officewas made. This is already specified byparagraph (b)(3). Other stylisticsuggestions were made and adopted.

Rule 21. Suggestions were receivedrequesting that the provisions of Rule 23be incorporated into paragraph (b ofthis rule. The addition of other materialto this rule would make it too lengthyand more difficult to understand;however, a cross-reference has beenadded. One commenter felt that theveteran should not be presumed to agreewith every statement to which a specificobjection was not raised. However, 38U.S.C. 4005(d)(4) states that theappellant will be presumed to be inagreement with any statement of factcontained in the statement of the case towhich no exception was taken.Furthermore, the instructions containedon VA Form 1-9, Appeal to Board ofVeterans Appeals, notify the appellantof this presumption.

A comment was received to the effectthat Rule 21(b) does not actually specifywhat information is necessary in asubstantive appeal. Rule 21(b) has setout the more important features of asubstantive appeal. Due to the numeroustypes of appeals itis impossible to bemore specific.

This rule has been amended to showthat-the agency's notification ofappellate rights includes notification ofthe right to a hearing and torepresentation.

Rule 22 Stylistic changes wereadopted.

Rule 23' The word "argument" hasbeen substituted for the word"allegation" since the former suggestsboth contentions and reasoning insupport of those contentions. Acommenter, with respect to' Rule 73,requested that "certification" be

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6964 Federal Register / Vol. 48, No. 34 / Thursday, February 17, 1983 / Rules and Regulations

defined. Rule 23 now contains thatdefinition.

Rule 24. It was requested that thisregulation provide for a 30-day notice tothe appellant that the appeal will beclosed. A notice provision is notconsidered necessary inasmuch as theappellant is notified of the time limitswithin which to file a substantive appealat the time a statement of the case isfurnished. The appellant is already onnotice that failure to file the substantiveappeal will result in closing of the case.

, Rule 25. A commenter thought therewas an implication that the agency oforiginal jurisdiction could withdraw anotice of disagreement. The regulationwas revised to avoid this implication.

Rule 26. A comment was received thatthis regulation is unnecessary. Althoughthe Board of Veterans Appeals does notcommonly dismiss an appeal, there areinstances of cases being dismissed forfailure to state any disagreement in thelaw or fact as contained in thestatement of the case. Anothercommenter felt that the regulation doesnot conform to the statute since 38U.S.C. 4005(d)(5) requires failure toallege a specific area of law or fact. Toavoid ambiguity, the regulation has beenrevised to use the statutory language.

It was suggested that the regulationrequire notification to an appellant ofthe dismissal action and any furtherrecourse he/she may have after adismissal action. The policy of the Boardof Veterans Appeals is to construe anysubstantive appeal in a very liberalmanner. There are few occasions inwhich a dismissal action arises and inthose situations the appellant receives adismissal decision signed by the Boardmembers. The only recourse anappellant would have is reconsideration.A cross-reference to the rule onreconsideration has been added.

Rule 27. It was suggested that Rule 27be part of Rule 17. Rule 17 dealsspecifically with commencement of theappeal. Rule 27 relates to the details ofactually filing a notice of disagreementand is appropriately found in thissection of the Rules of Practice."Decision" was changed to the moreaccurate field term "determination."Another commenter requested that thedesignation "agency of originaljurisdiction" be included in this rule.Inasmuch as the language "the VeteransAdministration office from which theclaimant received notice of thedetermination being appealed" is thedefinition of "agency of originaljurisdiction," the additional designationis unnecessary.

Rule 28. A question was raised as towhat particular paragraph of this rulewould apply to a comatose claimant. In

the situation where a patient remainscomatose for a considerable period oftime, he/she would be consideredincompetent and paragraph (b) wouldapply. The rule has been.revised to pointout that a proper power of attorney ordeclaration of representation could alsoaccompany the notice of disagreementand substantive appeal.

Rule 29. One commenter described acircumstance in which an adversedetermination was received by theclaimant who then filed a notice ofdisagreement within 1 year andthereafter arranged for a hearing with aposthearing review. The commenterwanted to know whether the veteranhad another 1-year period to file a noticeof disagreement. In this situation thenotice of disagreement had already beenfiled within 1 year from the date of theinitial determination and the caseremained in a pending appellate statusthroughout the hearing and posthearingreview. It is unnecessary to file anothernotice of disagreement. In other words,hearings on appeals and subsequentreviews by the agency of originaljurisdiction would not adversely affectthe appellant with respect to thepending appeal. As the result of onesuggestion, the phrase "date of mailing"has been defined.

Rule 30. It was suggested that the ruleinricate where extension requests andadditional evidence are to be filed andwho makes the determination.Accordingly, this rule is revised andcross-references are added to show thisinformation. With respect to paragraph(b) several comments were received tothe effect that the filing of additionalevidence and the resultant review anddetermination be subject to anadditional 1-year period within which tofile a notice of disagreement. Thepurpose of paragraph (b) was to stressthat the filing of additional evidenceshould not be used as a substitute for anotice of disagreement or a substantiveappeal. Once a determination has beenmade in the field it is necessary to file anotice of disagreement withift I year.Once that notice of disagreement hasbeen filed, the submission of additionalevidence will not affect the appellatestatus of the initial determination.However, if a notice of disagreement ora substantive appeal is not filed, thesubmission of additional evidencecannot reactivate the appeal. If anappellant wishes to submit additionalevidence and needs additional timewithin which to do this, the properprocedure is to request an extension.The additional evidence, of course,could serve as a basis for a reopenedclaim and initiate a new 1-year periodwithin which to appeal.

Rule 33. A sentence contained in rules33 through 35, stating that the Board ofVeterans Appeals will make a finaldecision regarding its appellatejurisdiction, was questioned. Thepurpose of that statement was toindicate that if a notice of disagreementor substantive appeal is not timely filedor is inadequate only the Board candecide whether it has jurisdiction toreview the merits of the case. Since thestatement is not necessary for theseregulations and may create someconfusion it is being deleted here andincorporated into § 19.1(b).

Questions were raised as to thedistinctions between Rules .33 and 34and Rules 35 and 36. Rules 33 and 34cover those situations where the agencyof original jurisdiction questions thetimely filing of a notice of disagreementor a substantive appeal or the adequacyof a notice of disagreement. The usualsituation contemplated is when there isdisagreement among members of therating board as to this particularquestion. These questions should bereferred to the Board using theadministrative appeal procedure. Rules33 and 34 were amended forclarification. Rules 35 and 36 areapplicable when the claimant protestsfindings of untimely filing or inadequacymade by the agency of originaljurisdiction.

Rule 37. A comment was received tothe effect that the 30-day period withinwhich to present argument andadequacy questions was not longenough for preparation of response,especially because of any time lost inthe mail, weekends and holidays. Inview of this comment, the regulation isamended to provide for a period of 60days.

Rule 38. A comment was receivedsuggesting that a cross-reference to§ 19.5 (now § 19.4) be included and thatthe definition of an administrativeappeal be rephrased to show that it istaken by a Veterans Administrationofficial. Accordingly, the rule wasamended.

Rule 39. Clarification of the phrase"date of mailing" was requested andadopted to show that it refers to thedate of the letter of notification to theclaimant. Another commenter requestedthat the 60-day period within which anadjudication officer must file anadministrative appeal be extended to 6months since sometimes an adjudicationofficer does not learn of a controversialcase until 3 or 4 months after the initialdetermination. It is felt that a 60-dayperiod is sufficient for an adjudicationofficer to file an administrative appealinasmuch as the adjudication officer has

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direct contact with rating boards.However, if an adjudication officerlearns of a controversial case after the60-day period he/she can request theDirector of the Regional Office to file anadministrative appeal within the 6-month period.

Rule 40. It was requested that a copyof the memorandum for file entitled"Administrative Appeal" which setsforth the issues and basis for the appeal,be furnished the claimant andrepresentative. The rule is revised torequire the memorandum or a summarythereof be furnished so that the claimantcan better determine whether to join inthe appeal.

Rule 41. One commenter wasconcerned that there was no provisionensuring that the claimant did notsubmit a statement which accidentallytriggered a merged administrativeappeal. The procedure to preventaccidental merger has been explainedand added to this rule.

Rule 42. This rule has been rephrasedto clarify that the processing time of anunmerged administrative appeal is notchargeable to the claimant for purposesof perfecting an appeal.

Rule 43. A suggestion that the rule beclarified to indicate that the initialportion of this rule is a definition ofwhat constitutes a contested claim hasbeen adopted.

A comment was received requesting aregulation requiring suspension of allpayments pending resolution of acontested claim. It was suggested thatno benefits be paid to contesting partiesuntil the end of the 60-day appeal periodor until a Board of Veterans Appealsdecision, whichever occurs last.

The agency's procedures with respectto suspension of benefits in contestedclaims is not appropriate subject matterfor these rules.

This rule has been amended to showthat the agency's notification ofappellate rights includes notification ofthe right to a hearing and torepresentation.

Rule 45. The rule has been amendedto add a definition as to whatconstitutes "date of mailing."

Rule 51. A comment was receivedsuggesting the use of the term"designation and power of attorney."The rule is changed, using the term"designation by power of attorney."

The citation, 38 U.S.C. 4005(b](2), wasquestioned; however, that is the Board'sstatutory authority for accepting thedesignation by pow er of attorney.

Rule 52. A comment was receivedquestioning the term "declaration ofrepresentation," suggesting that the termbe changed to "power pf attorney."However, attorneys practicing before

the Veterans Administration arepermitted to declare that they are therepresentative of the appellant withoutthe appellant executing a power ofattorney. A power of attorney executedby the appellant is unnecessary.

It was also stated that & signedconsent from both the appellant andfrom the attorney ignores the legalpractice of accepting the client's retaineras a power of attorney. Cross-referencesto 38 CFR 14.629(c) and 14.631(c), theagency's regulations concerning adeclaration of representation by anattorney, were included. It is notnecessary to have both a consent fromthe appellant and a signed statementfrom the attorney. A statement from theattorney indicating that he/she is therepresentative of the appellant issufficient for a.valid power of attorney.However, this statement alone wouldlimit the attorney's access to only thoserecords and evidence directly relating tothe issue on appeal. The combination ofboth a consent from the appellant and astatement from the attorney affords theattorney full access to all evidence ofrecord pertaining to the appellant in theVeterans Administration. The rule waswritten in this fashion so that, by.following this procedure, the attorneywould have full access to all evidence inthe agency and be saved unnecessaryadministrative delay.

It was suggested that the word"attorney" be defined as lawyers or lawfirms since the rule would cause unduedelay and difficulty in the substitution ofrepresentatives as a result of staffchanges in law school clinics, law firmsor other nonrecognized organizations. Itwas claimed that the rule produces adiscriminatory effect by restrictingrepresentation by attorneys butnotsimilarly restricting representation byservice organizations. Since this matteris more appropriate for inclusion in. theregulations concerning recognition- ofattorneys as representatives and theGeneral Counsel is in the process ofrevising those regulations to permitattorneys associated with a claimant'sattorney to assist in the preparation andrepresentation of a claim or appeal, wehave removed paragraph (b] from Rule52. We have added a sentence, though,stating that a legal intern, law student or.paralegal may assist in an appeal if theappellant furnishes written consent.This consent does not, however, have toname a specific individual. A suggestionwas made to rephrase the paragraphdealing with revocation of a power ofattorney in Rules 52 and 53 so that theyconform with the revocationsubparagraph in Rule 51. Rules 52 and 53are so amended.

A suggestion was received requestingthat information about attorney's feesand expenses be a part of this rule. Thatinformation is already contained in. theNotice of Procedural and AppellateRights, VA Form 1-4107, which isfurnished with every notification of anadverse determination. The authority forthe Rule, 38 U.S.C. 3404, provides for feelimitations.

Rule 53. It was suggested that thephrase in paragraph (a) reading 'Thedesignation should be an individualagent" be changed to read 'Thedesignation must be an individual." Itwas also suggested that the phrase"representation by an agent" inparagraph Cc) be changed to read"designation and power of attorney."We changed the language to "power ofattorney." "Designation" is notnecessary since agents are designatedby a power of attorney.

Rule 54. Paragraph (b) has beensimplified, as requested.

Rule 55. A comment was receivedwith respect to allowing only oneattorney'or agent to be recognized atany one time. For the same reasons asset forth in Rule 52, above, the agency iswithout authority to formulate aregulation to allow for representation bylegal aid societies, law school clinics orlaw firms.

A comment was received that,following the death of a veteran, thesurvivors should be notified of the claimor appeal. The purpose of the rule issimply to allow an eligible survivor whowishes to continue the veteran's appealor claim with the VeteransAdministration not to have to executeanother power of attorney at a timewhen the loss of the veteran may haveproduced considerable emotional stress.

Another comment was receivedsuggesting that the reasonable period inparagraph (c) be defined as I year. TheBoard prefers to use the term"reasonable period" since this allowsgreater flexibility in preserving aparticular power of attorney. Newparagraph (d) defines "reasonableperiod."

Rule 58. A group suggested that anattorney need not be present when aparalegal or legal intern appears beforethe Board of Veterans Appeals. Theagency has no authority to recognize asa representative a paralegal or a legalintern in the absence of an attorneysince 38 U.S.C. chapter 59 specificallydelineates those individuals who mayact as a representative of the appellant.A paralegal who wishes to represent anappellant and not be under thesupervision of a recognized attorneymust satisfy the laws and regulations

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with respect to agent status. A commentwas received that many veterans goentirely unrepresented. Our recordsshow, however, that over 90 percent ofthe appellants are represented. Withrespect to any limitation on the freedomof choosing a representative, the veteranor appellant has the freedom to chooseeither a representative of a serviceorganization', an attorney or anindividual who can qualify as an agent.It is felt that there is no practicalrestriction upon the choice of therepresentative an appellant may desire.Some groups requested that the status oflegal intern be extended to a paralegal.Because of the confusion with respect tolegal interns and paralegals, the rule isrevised to permit legal interns, lawstudents, and paralegals to assist in therepresentation of appellants.

Rule 57. A request was made to add aprovision allowing appellants to askquestions of all witnesses present at thehearing. This provision has been added.

Rule 58. A revision to show that notonly argument but testimony may bepresented at a hearing was requestedand adopted:

Rule 59. Common examples of goodcause have been added to paragraph (c),as requested.

Rule 60. Comments suggesting that therule specify that the place of the hearingis at the option of the appellant, thefunctions of field personnel be clarified,and the applicability of Rules 61 through67 to paragraph (c) hearings wereessentially adopted. However, Rules 61and 63 were excepted since they can.only be applicable to the Board ofVeterans Appeals. A cross-referencewas added to show the statutorycitation for decisions with dissentingopinions. A commenter requested thatmore travel Boards be held in the field.The frequency of travel Board hearingsis limited by the availability of travelfunds and personnel. Travel Boardplanning is not proper regulatory subjectmatter.

We have clarified Rule 60 to show theexceptions where a hearing panel doesnot participate in the final decision.

Rule 61. It was asked whether threeindividuals are needed to conduct ahearing in the field. This particular ruleapplies only to hearings before Boardmembers of the Board of VeteransAppeals. The rule is rephrased forgreater clarity.

A sentence was added concerning theprocedure to be followed when amember of the hearing panel cannotparticipate in the final decision.

Rule 62. A question was raised as tothe role of the other section members inprocedural questions. The chairman ofthe panel has always decided questions

relating to procedure. However, anynonprocedural motions filed, such asrequests for independent medical expertopinions and others relating to theactual merits of the case, would besubject to a decision of all threemembers. A cross-reference to Rule57(c) has been added as a result of thissuggestion.

Rule 63. It was requested that this rulebe amended to state that arepresentative has a right to aprehearing conference and that it beexpanded to include the following assubject matter for the prehearingconference: clarification of evidence tobe presented, determinations as toadditional evidence and all othermatters which would facilitate theconduct of the hearing. While theappellant and representative have aright to a hearing before the Board ofVeterans Appeals, there is no right to aprehearing conference. The purpose ofthe prehearing conference is to facilitatematters prior to the actual hearing. Thelanguage of the regulation clearly showsthat the purpose of a prehearingconference is basically procedural. Aprehearing conference should never be asubstitute for a hearing.

Rule 64. A commenter requestedexamples of good cause. The Board hasa liberal policy of allowing the record toremain open after a hearing. The ruleitself explains the usual good causesituation, i.e., sufficient time to obtainthe desired evidence. The use of theterm "good cause" insures continuationof the Board's liberal policy. Asrequested, a cross-reference to Rule 73has been added.

Rule 65. It was suggested that theagency provide subpoena power overVeterans Administration personnelupon a reasonable showing of relevanceand materiality. It was felt thatpermitting the Board to exercisesubpoena power over agency personnelupon a showing of good cause wouldprevent abuses in the agency andgreatly improve the overall fairness ofthe proceedings. The Board of VeteransAppeals has no authority to subpoenaemployees of the VeteransAdministration. The Board usuallyreviews evidence prepared by agencyemployees. Should there be somequestion as to the behavior or action ofa VA employee, the appellant and/orrepresentative could request that theBoard conduct a field or Central Officeinvestigation to review the matter. Thisis a sufficient remedy if such a situationshould arise. The use of the citation, 38U.S.C. 4002, was questioned. However,this is the Board's basic statutoryauthority for the appellate hearingprogram.

Rule 67. A comment was receivedquestioning whether there as adifference between a simultaneouslycontested claim and a contested claim.There is no difference. 38 U.S.C. 4005Arefers to these claims as"simultaneously contested." To avoidany confusion, Rules 43 and 67 arerevised accordingly.

Rule 68. A commenter felt that a taperecording of a Board hearing would notbe sufficient if the appeal were subjectto court review. The Board of VeteransAppeals, as required by this rule, willkeep a file of all hearing tapes. In theevent there is any court review of theBoard proceedings, a transcript willautomatically be prepared without arequest from the appellant andrepresentative.

Another commenter suggested that theregulation require notice to the appellantand representative prior to the hearingthat a copy of the transcript could beobtained without cost. The rule, itself, isconsidered adequate notice to thepublic. Clarification was requested as tohow an informal hearing prior to filing ofthe notice of disagreement should berecorded. Any informal hearing heldprior to the filing of a notice ofdisagreement is not a hearing on appealand is not subject to these rules. M21-1.paragraph 18.18, contains theappropriate hearing guidelines for theDepartment of Veterans Benefits.

Rule 72. It was suggested that Rules 72and 30(b) be combined. Although Rule30(b) deals specifically with the timelimits within which to file an appeal, across-reference to Rule 30(b) was added.

Rule 73. A question was posed as tothe procedure for and significance of"certification." In view of this, Rule 23has been amended to include adefinition of "certification." Acommenter stated that the agency oforiginal jurisdiction should notify theappellant that the evidence submitteddoes not have a direct bearing on theappellate issue. The agency of originaljurisdiction normally forwards to theBoard any evidence directly relating tothe issue. The purpose of the Rule is toprevent an automatic transfer to theBoard of evidence unrelated to theappeal. Because the agency of originaljurisdiction may develop its owninstructions for processing this type ofevidence, formal notification rules areunnecessary.

Rule 74. The heading of this regulationwas criticized; therefoie, it has beenchanged to read "Consideration ofadditional evidence received by theBoard of Veterans Appeals." Althoughone suggester recommended that theplace for filing additional evidence be

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specified, it is difficult to specify theparticular place since appellants andrepresentatives may submit additionalevidence either in the field or at CentralOffice. Furthermore, Rules 73 and 74cover all situations where such evidencemay be filed. It was suggested that theBoard review uncertified, new issues oflaw or fact when waiver of RegionalOffice review is requested. The waiverof a supplemental statement of the caseunder this regulation is applicable onlyto those issues which have beenproperly prepared for submission to theBoard of Veterans Appeals. The Boardhas no jurisdiction to review issueswhich have not been considered by theagency of original jurisdiction. As apolicy matter, the Board assumesjurisdiction only to allow those issuesdisposed of in an agency of originaljurisdiction determination. The status ofBoard of Veterans Appeals Bulletip 01-7, paragraph 2(b), was questioned. ThisBulletin was rescinded in November1976 and replaced by MI-1, FieldAppellate Procedures, paragraph11.04(a). A supplemental statement ofthe case need not be prepared if, prior toforwarding the records to the Board,additional evidence is received of whichthe veteran is aware. Under thiscircumstance, a letter to the veteranwould be sufficient.

Rule 75. As the result of a comment, across-reference to Rule 6 has beenadded.

Rule 76. A commenter requested thatthe fact that an appellant does not havea vested right to an expert medicalopinion be clarified. The rules are veryclear that the obtaining of any opinionby the Board of Veterans Appeals isdiscretionary but at the same time anappellant or representative may file amotion requesting such an opinion. Aquestion was raised as to theappropriateness of the citation, 38 U.S.C.4004(c), relating to professionalopinions. The purpose of the inclusion ofthis citation was to point out that theseopinions are not binding upon the Boardof Veterans Appeals and are strictlyadvisory. However, the cross-referenceto Rule 3 is sufficient to show that theseopinions are advisory. The citation to 38U.S.C. 4004(c) is changed to 38 U.S.C.4009(a).

Rule 77. It was suggested that this rulespecify that the appellant know theidentity of the independent medicalexpert, have the opportunity to commenton the expert's findings and be able tosubmit written questions to the IME tobe answered under oath.

The purpose of the independentmedical opinion program is to allow aspecialist, who is not an employee of theVeterans Administration, to review the

medical evidence of record and providean opinion from an unbiased point ofview. The procedures used by the Boardof Veterans Appeals in obtaining suchan opinion do not provide for advanceidentification of a particular specialist.The Board does not know the identity ofthe specialist until the opinion isreceived from the medical school. Afterthe opinion reaches the Board, a copy issubmitted to the appellant and/orrepresentative, thereby automaticallydisclosing the identity of the expert.Rule 98 covers those situations whereinthe identity of the independent medicalexpert is requested.

The rule does specify that, uponreceipt of the opinion, it will be referredto the appellant and representative forcomments.

With respect to submitting writtenquestions to the specialist to beanswered under oath, it is VA policy notto allow cross-examination.Furthermore, the specialist is not awitness but only provides the BoardMembers with a reasoned opinionclarifying a controversial or complexmedical issue. The appellant inrequesting an opinion can alwayssuggest questions to be presented to theexpert.

Rule 78. A comment was receivedrequesting a definition of "good cause."The purpose of using the phrase "goodcause" was to honor a request for amedical opinion any time a valid reasonis shown by the appellant orrepresentative. To clarify the rule, anexample of "good cause" is provided.

Rule 79. It was believed that 38 U.S.C.3301 did not apply to this rule. Thissection of title 38, United States Code,provides that information from medicalrecords can be referred to anindependent medical expert; however,disclosure of this information may notbe made to the appellant if suchinformation is injurious to the physicaland mental health of the appellant. Itshould be noted, though, that 38 CFR1.577(d) allows release of suchinformation to a physician or otherprofessional person selected by theappellant, or the appellant may discussthe matter with a VA physician who canmake a decision regarding release of theinformati6n to the appellant. It wasrecommended that a provision be madefor the appellant and representative tosubmit questions through the Board'shearing panel to the independentmedical expert. It has been a practice inthe past that, when an appellant orrepresentative makes a request for anindependent medical opinion, he/shemay suggest questions for the specialist.The Board makes these questions a partof the record at the time of referral to

the medical Institution. Some felt thatthe 30-day response period wasinadequate when representatives arelocated only in the field. Accordingly,the rule is amended to allow for a 60-day response time.

Rule 81. A commenter noted that theexceptions set forth in 38 U.S.C. 4003(a)are not set forth in-paragraph (a) of thisrule. The exceptions to finality, i.e.,obvious error in the recordor additionalofficial information from the servicedepartment are covered in Rule 85. Across-reference has been added.Another comment was received statingthat no provision was made for a case inwhich a decision, made by an expandedpanel, is not unanimous and theChairman agrees with the minority.Voting panels are comprised of three,six or twelve Board members. If theChairman agrees with the minority he/she may expand the panel to six or amaximum of twelve members. Themajority vote would prevail.Cross-references have also been addedto Rules 10(d), 60 and 61.

Rule 82. Comments which suggestedmodification of the text to afford greaterclarity were adopted. Anothersuggestion was made to require asupplemental statement of the case aftercompleting action on a remand curing aprocedural defect. Since, for instance,correction of the proper power ofattorney or clarification of a request forhearing may require onlycorrespondence from the agency oforiginal jurisdiction, a supplementalstatement of the case is not alwaysrequired.

Rule 83. A comment was receivedsuggesting that a Board member shoulddisqualify himself/herself not onlywhere there are circumstances whichmight give the impression of bias butalso for any other reason. The basis fordisqualification in this rule is conflict ofinterest which is adequately describedin paragraph (a). It was requested thatthe appellant be given the right to -challenge or question Board members'qualifications. They are appointed bythe Administration with the approval ofthe President. The appellate decision isnot the proper vehicle for challenging aBoard member. The purpose of this ruleis to avoid conflict of interest. Arecommendation was made to requirethat a psychiatrist be included on thepanel in cases involving mentaldisability. Adoption of thisrecommendation is not feasible sincethe Board handles several thousandsuch appeals every year. See thecomment for Rule 9.

Rule 84. A comment was adoptedwhich suggested that the phrases

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"administrative action" in § 19.2(b) (now§ 19.5(b)] and "administrativeallowance" in Rule 84 be reconciled.The action is designated an"administrative allowance" since this isin common usage among representativesand Board members. Anothercommenter suggested that the rule allowan appellant and/or representative torequest an administrative allowance.This action can only be invoked by theBoard itself when no error is foundfollowing a request for reconsiderationor a review of a final determination byan agency of original jurisdiction. Aquestion was raised as to whether aspecific number of members is requiredin order to recommend anadministrative allowance. A specificnumber is not required. This is adiscretionary action by the Chairman orVice Chairman on recommendationssubmitted to them by Board members.

Rule 85. One suggester believed thatreconsideration should be accordedwhen evidence such as new scientific ormedical evidence is discovered. Whilesuch evidence would provide a newfactual basis for reopening the claim, itwould not prove error in the priordecision and entitle the appellant toreceive retroactive benefits. The Boardof Veterans Appeals decision wouldremain valid based on then-knownscientific or medical knowledge. It wasalso requested that this rule be clarifiedto indicate that the agency of originaljurisdiction need not furnish a statementof the case on the issue of obvious errorof fact or law. Reconsideration reviewscan be conducted only by the Board ofVeterans Appeals. The agency oforiginal jurisdiction has no authority todo so. Comments were received andadopted specifying that: (1)Reconsideration be accorded forcorrected official service departmentrecords or upon the discovery of newand material evidence from the servicedepartment; (2) reconsideration may berequested at any time; and (3)reconsideration may also be requestedby the appellant.

Rule 86. There appeared to be someconfusion in the comments as to theexact processing of a reconsiderationrequest. This rule is revised toemphasize the two-stage process: (1)Motion disposition and (2) actual reviewof the merits by the Board members.

Rule 87. This rule has been rephrasedto specify how additional evidencewould be treated on reconsideration.

Rule 88. This rule has been clarified,as suggested.

Rule 89. A comment was receivedsuggesting that this rule be titled "Timelimit for filing of a request." It was alsorequested that cross-references to Rules

29, 39 and 45 be added. However, thoserules do not relate to reconsideration.The use of a heading entitled "Timelimits" is not appropriate forreconsideration since there is no specifictime limit. Another commenter pointedout that the filing of a brief for -reconsideration is unrelated to a hearingrequest. This language has been insertedin Rule 86 which covers application forreconsideration. Rule 89 has beenretitled "Hearings on reconsideration."

Rule 90. A comment suggesting that"assign a panel" be substituted for"create a panel" was adopted. For "uniformity with Rule 86, "request" isdeleted and "motion" -substituted.Another comment was receivedsuggesting that the appellant/representative be notified when amotion for reconsideration is granted ordenied. Rule 86 was revised to clarifythe processing of requests forreconsideration. See the commentsunder that rule.

Rule 91. It was suggested that the term"harmless error" be defined andcompared with the terms "sufficientcause" and "good cause." This ruleadequately defines the concept ofharmless error. For further clarification,examples are typographical errors,misspellings, and other minor errorswhich do not affect the substance of theBoard's decision and its disposition. TheBoard has a policy of issuing correctedpages when harmless error is found. Seethe general comments preceding thisrule-by-rule analysis for a discussion ofthe comparison with the other terms.

Rule 94. A comment was receivedrequesting that the rule be amended toshow that a claim will be reopened ifnew and material evidence is submitted.-This rule requires a determination to bemade when new evidence is submittedIf the evidence is found to be new andmaterial, the claim is consideredreopened.

Rule 95. It was suggested that the rulebe clarified to show the Board may ormay not complete its action. By using"may," it is already implied thatcompletion of the appeal is at theBoard's discretion. Cross-references toRules 55 and 96 were requested andadded.

One commenter asked that the rulerequire notification to the survivors of apending appeal. The Board usuallynotifies immediate relatives that theymay wish to file claims for accruedbenefits.. However, failure to notifysurvivors that they may file such claimswould not affect-the disposition of thepending appeal and is not deemedappropriate for incorporation in theserules.

Rule 96. It was requested thatlanguage referring to Rule 95 beincorporated in this Rule. This Ruleapplies to any prior decisions during theveteran's lifetime and not just to thosepending at the time of the veteran'sdeath.

Rule 9. Several commenterssuggested that BVA decisions beconsidered as precedent. 38 U.S.C.4004(c) enumerates three categories ofpronouncements which are binding onthe Board. Prior Board decisions are notincluded. In the absence of a specificdeclaration by Congress that it intendsthe Board to rely on its own decisions, itwould be inappropriate for us to adopt arule to that effect. We have revised therule to stress the need for consistency.Prior decisions are given considerableweight in a case when the factualbackgrounds reasonably relate to thecurrent question at issue. It was alsosuggested that § 19.1 or 19.103 indicatethat Board decisions are not precedent.A cross-reference has been added toRule 3 (§ 19.103).

Rule 98. A stylistic change wassuggested and adopted.

Rule 99. It was suggested that thisproposed Rule be deleted entirely. Thecomment Was made that any request toamend an appellate decision could beinterpreted as an attack on the functionsof the Board of Veterans Appeals. It wasalso suggested that the Board would beseeking to insulate its decisions fromcorrection under the Privacy Act.

Nothing in the proposed rule shouldbe read as changing or modifying theamendment provisions of the PrivacyAct. Indeed, at the outset Rule 99specifies that a request to amend aBoard decision under the Privacy Actmay be entertained. It should beemphasized that a request for correctionof erroneous factual information in aBVA decision will be considered inassociation with all relevant evidence.The language of the rule is intended toshow that a final adjudicatory decisionof the Board is not properly the subjectof a Privacy Act amendment request. Inessence, the provisions for amendmentof records under the Privacy Act are notintended to permit a collateral attackupon a Board decision. (OMB PrivacyAct Implementation Guidelines andResponsibilities, 40 FR 28958 (1975).)Where there are matters in dispute thatinvolved the adjudicatory functions ofthe Board, the challenge should be madeusing the procedures established underRules 85 through 90. In this respect, it ispointed out that amendment of a recordunder the Privacy Act could also be thesubject of an argument forreconsideration.

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We believe that the objectionsreceived indicate that the proposed rule,as written, may be confusing. Henceeditorial changes have been made forthe purpose of clarification.

Rule 100. Pursuant to a comment withrespect to Rule 13, this rule was addedto inform the public of the existence ofthe BVA Index to Appellate Decisions(BVA Index 1-01-1).

The Administrator hereby certifiesthat these final rules and regulationswill not, if promulgated, have asignificant economic impact on asubstantial number of small entities asthey are defined in the RegulatoryFlexibility Act (RFA], 5 U.S.C. 601-612,Pursuant to 5 U.S.C. 605(b), these finalrules and regulations therefore areexempt from the initial and finalregulatory flexibility analysesrequirements of sections 603 and 604.The reason for this certification is thatthe rules and regulations will regulateonly. individual Veterans Administrationbenefit recipients. They will have nosignificant direct impact on smallentities (i.e., small businesses, smalprivate and nonprofit organizations, andsmall governmental jurisdictions).

The agency has also determined thatthese rules and regulations arenonmajor in accordance with ExecutiveOrder 12291, Federal Regulation.

There is no Catalog of FederalDomestic Assistance number involved.

The information collectionrequirements contained in theseregulations (§§ 19.121, 19.123, 19.146 and19.151) have been approved by theOffice of Management and Budget underthe provisions of the PaperworkReduction Act of 1980 (Pub. L. No. 96-511) and have been assigned OMBcontrol numbers 2900-0085 (see§ § 19.121, 19.123, 19.146) and 2900-0321(§ 19.151).

The proposed rules and regulations,as amended, are hereby adopted andare set forth below.

List of Sdbjects in 38 CFR Part 19Administrative practice and

procedure, Claims, Veterans.Approved: February 4, 1983.By direction of the Administrator.

Everett Alverez, Jr.,Deputy Administrator.

Title 38, CFR, Part 19 is revised toread as follows:

PART 19-BOARD OF VETERANSAPPEALS

Subpart A-Appeals-GeneralSec.19.1 Appellate jurisdiction.19.2 Subject matter of appeals.

Sec.19.3 Appellate jurisdiction of

determinations of the Department ofMedicine and Surgery.

19.4 Restriction as to change in paymentspending determination of administrativeappeals.

19.5 Delegation of authority to Chairmanand Vice Chairman, Board of VeteransAppeals.

19.6 Disclosure of information.

Subpart B-Appeals-Rules of Practice

General19.101 Rule 1; Authority, scope of iules, and

construction.19.102 Rule 2; Effective date.19.103 Rule 3; Governing criteria.19.104 Rule 4; Finality of decisions.

Docketing19.105 Rule 5; Docketing of appeals.19.106 Rule 6; Advance on the docket.

The Board19.107. Rule 7; Name and business hours.19.108 Rule 8; Establishment of the Board.19.109 Rule 9; Composition of the Board.19.110 Rule 10; Appointment, assignment,

and rotation of members.19.111 Rule 11; Function of the Board.19.112 Rule 12; Jurisdiction.19.113 Rule 13; Board records.

Notification of Appellate Rights19.114 Rule 14; Notification of right to

appeal.19.115 Rule 15; Notification of right to

appeal in administrative appeals andcontested claims.

19.116 Rule 16; Decision notification.

Commencement of Appeal19.117 Rule 17; What constitutes an appeal.19.118 Rule 18; Notice of disagreement.19.119 Rule 10; Action by agency of original

jurisdiction on notice of disagreement.19.120 Rule 20; Statement of the case.19.121 Rule 21; Furnishing the statement of

the case. and instructions for filing asubstantive appeal.

19.122 Rule 22; Supplemental statement ofthe case.

19.123 Rule 23; Substantive appeal.19.124 Rule 24; Closing-failure to respond

to statement of the case.19.125 Rule 25; Withdrawal.19.126 Rule 26; Dismissal.

Filing"19.127 Rule 27; Place of filing notice of

disagreement and substantive appeal.19.128 Rule 28; Who can file an appeal.19.129 Rule 29; Time limit for filing.19.130 Rule 30; Extension of time for filLig.19.131 Rule 31; Computation of time limit.19.132 Rule 32; Legal holidays.19.133 Rule 33; Timely filing of appeal

questioned within the agency of originaljurisdiction.

19.134 Rule 34; Adequacy of notice ofdisagreement questioned within theagency of original jurisdiction.

19.135 Rule 35; Untimely filing of appealprotested by claimant.

19.136 Rule 36; Inadequacy of the notice ofdisagreement.

Sec.19.137 Rule 37; Adequacy of the substantive

appeal.19.138 Rule 38; Administrative appeal.19.139 Rule 39; Officials authorized and time

limits fqr filing administrative appeals.19.140 Rule 40; Notification to claimant.19.141 Rule 41; Merger of administrative

appeal and claimant's appeal.19.142 Rule 42; Effect of decision on

administrative or merged appeal.

Contested Claims19.143 Rule 43; Notification of right to

appeal in simultaneously contestedclaims.

19.144 Rule 44: Who can file an appeal incontested claims.

19.145 Rule 45; Time limits for filing incontested claims.

19.146 Rule 46; Notice to contesting partieson receipt of notice of disagreement.

19.147 Rule 47; Notice of substance ofappeal to other contesting parties.

19.148 Rule 48; Extension of time for filing incontested claims.

19.149 Rule 49; Notices to last addresses orrecord In contested claims.

Representation19.150 Rule 50; Right to representation.19.151 Rule 51; Recognized organizations.19.152 Rule 52; Attorneys.19.153 Rule 53; Agents.19.154 Rule 54; Other persons as

representative.19.155 Rule 55; General.19.156 Rule 56, Legal interns, law students

and paralegals.

Hearings19.157 Rule 57; General19.158 Rule 58; Who may appear.19.159 Rule 59; Scheduling and notice of

hearing.19.160 Rule 60; Place of hearing.19.161 Rule 61; Composition of the hearing

panel.19.162 Rule 62; Functions of the presiding

member.19.163 Rule 63; Prehearing conference.19.164 Rule 64; Procurement of additional

evidence following a hearing.19.165 Rule 85; Witnesses.19.166 Rule 66; Expenses.19.167 Rule 67; Hearings in simultaneously

contested claims.19.168 Rule 68; Recorded hearing.19.169 Rule 69; Recording of hearings.19.170 Rule 70;, Official transcript.19.171 Rule 71; Alternate transcript

versions.

Evidence19.172 Rule 72; Submission of additional

evidence.19.173 Rule 73; Consideration of additional

evidence received by the agency oforiginal jurisdiction.

19.174 Rule 74; Consideration of additionalevidence received by the Board ofVeterans Appeals.

Action by the Board19.175 Rule 75; Order of consideration.19.176 Rule 76; Medical opinions.

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Sec.19.177 Rule 77; Independent medical expert

opinions.19.178 Rule 78, Filing of requests for the

procurement of medical opinions.19.179 Rule 79; Notification of medical

opinions secured by the Board.19.180 Rule 8; The decision.19.181 Rule 81; Voting by Board members.19.182 Rule 82 Remand for further

development.19.183 Rule 83; Disqualification of members.19.184 Rule 84; Administrative allowance.

Reconsideration

19.185 Rule 85; When reconsideration isaccorded.

19.186 Rule 86; Filing and disposition of amotion for reconsideraton.

19.187 Rule 87; Evidence considered.19.188 Rule 88; Remand pursuant to

reconsideration.19.189 Rule 89; Hearings on reconsideration.19.190 Rule 90: Number of members on

reconsideration panel.

Finality

19.191 Rule 91; Harmless error.19.192 Rule 92; Finality of determinations of

the agency of original jurisdiction where*appeal is not pefected.

19.193 Rule 93; Finality of determinations ofthe agency of original jurisdictionaffirmed on appeal.

19.194 Rule 94; New claim after appellatedecision.

19.195 Rule 95; Death of appellant duringpendency of appeal.

19.196 Rule 96; Claim for death benefits bysurvivor-prior unfavorable decision.

19.197 Rule 97; Nonprecedential nature ofboard decisions.

Privacy Act

19.198 Rule 98; Privacy Act request-appealpending.

19.199 Rule 99; Amendment of appellatedecision.

19.200 Rule 100; Index to appellatedecisions.

Subpart A-Appeals-General

§ 19.1 Appellate jurisdiction.

(a) General All questions on claimsinvolving benefits under the lawsadministered by the VeteransAdministration are subject to review onappeal to the Administrator of VeteransAffairs, decisions in such cases to bemade by the Board of Veterans Appeals.In its decisions, the Board is bound bythe regulations of the VeteransAdministration, instructions of theAdministrator and precedent opinions ofthe General Counsel. The Board mayexercise the same authority as thedepartment having originaljurisdictional responsibility. (38 U.S.C.4004)

(b) Appeals as to jurisdiction. Allclaimants have the right to appeal adetermination made by the agency oforiginal jurisdiction that the Board doesnot have jurisdictional authority to

review a particular issue. This includesquestions relating to the timely filingand adequacy of the notice ofdisagreement and the substantiveappeal. Only the Board of VeteransAppeals will make final decisions withrespect to its jurisdiction. (38 U.S.C.4004]

§ 19.2 Subject matter of appeals.

The Board's appellate jurisdictionextends to all questions on claimsinvolving benefits under the lawsadministered by the VeteransAdministration. (38 U.S.C. 4004(a)) Morecommon examples of the issues overwhich the Board has jurisdiction are asfollows:

Entitlement to and benefits resulting fromservice-connected disability or death. (38U.S.C. ch. 11)

Dependency and indemnity compensationfor service-connected death includingbenefits in certain cases of inservice orservice-connected deaths (38 U.S.C. 412] andcertification and entitlement to deathgratuity. (38 U.S.C. 423)

Entitlement to nonservice-connecteddisability pension, service pension and deathpension. (38 U.S.C. ch. 15)

Training and rehabilitation for veteranswith service-connected disabilities. (38 U.S.C.ch. 31)

Post-Vietnam Era Veterans' EducationalAssistance. (38 U.S.C. ch. 32)

Veterans' Educational Assistance. (38U.S.C. ch. 34)

Survivors' and Dependents' EducationalAssistance. (38 U.S.C. ch. 35)

Matters arising under National Service LifeInsurance and U.S. Government LifeInsurance. (38 U.S.C. ch. 19)

Payment or reimbursement forunauthorized medical expenses. (38 U.S.C.628)

Burial benefits. (38 U.S.C. ch. 23)Benefits for persons disabled by medical

treatment or vocational rehabilitation. (38U.S.C. 351)

Basic eligibility for home, condominiumand mobile home loans as well as waiver ofpayment of loan guaranty indebtedness. (38U.S.C. ch. 37 and 3102)

Waiver or recovery of overpayments. (38U.S.C. 3102)

Forfeiture of rights, claims or benefits forfraud, treason, or subversive activities. (38U.S.C. 3502-3505)

Character of discharge. (38 U.S.C. 3103)Determinations as to duty status. (38 U.S.C.

101(21)-(24))Determinations as to marital status. (38

U.S.C. 101(3), 103)Determination of dependency status as

parent or child. (38 U.S.C. 101(4), (5))Validity of claims and effective dates of

benefits. (38 U.S.C. ch. 51)Apportionment of benefits. (38 U.S.C. 3107)Payment of benefits while 'a veteran is

hospitalized and questions regarding anestate of an incompetent institutionalizedveteran. (38 U.S.C. 3203)

§ 19.3 Appellate jurisdiction ofdeterminations of the Department ofMedicine and Surgery.

(a) The Board's appellate'jurisdictionextends to questions of eligibility forhospitalization, outpatient treatment,and nursing home and domiciliary care,for devices such as prostheses, canes,wheelchairs, back braces, orthopedicshoes, and similar appliances, forautomobile and automobile adaptiveequipment assistance, and for otherbenefits administered by theDepartment of Medicine and Surgery.

(b) Medical determinations, such asdeterminations of the need for andappropriateness of specific types ofmedical care and treatment for anindividual, are not adjudicative mattersand are beyond the Board's jurisdiction.Typical examples of these issues arewhether a particular drug should beprescribed, whether a specific type ofphysiotherapy should be ordered, andsimilar judgmental treatment decisionswith which an attending physician maybe faced. (38 U.S.C. 4004(a))

§ 19.4 Restriction as to change Inpayments pending determination ofadministrative appeals.

If an administrative appeal is takenfrom a review or determination by theagency of original jurisdiction pursuantto Rules 38 through 42 (§§ 19.138-19.142),that review or determination cannoteffect any change in payments untilafter a decision is made by the Board ofVeterans Appeals. (38 U.S.C. 4006)

§ 19.5 Delegation of authority to Chairmanand Vice Chairman, Board of VeteransAppeals.

The Chairman and/or Vice Chairmanhave authority delegated by theAdministrator to:

(a) Approve the assumption ofappellate jurisdiction of an adjudicativedetermination which has not becomefinal in order to grant a favorablebenefit.

(b) Approve an administrativeallowance on an adjudicativedetermination which has become finalby appellate decision or failure to timelyappeal.

(c) Order Central Office investigationsof matters before the Board. (38 U.S.C.210(b), 212(a))

§ 19.6 Disclosure of Information.

It is the policy of the Board ofVeterans Appeals for the full text ofappellate decisions and statements ofthe case to be disclosed to appellants. Inthose situations where disclosing certaininformation directly to the appellantwould not be in conformance with 38U.S.C. 3301, that information will be

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removed from the decision or statementof the case and the remaining text willbe furnished the appellant. A full-textappellate decision or statement of thecase, however, will be disclosed to thedesignated representative unless therelationship between the appellant andrepresentative is such (for example, aparent or spouse) that disclosure to therepresentative would be as harmful as ifmade to the appellant. (38 U.S.C.4005(d)(2))

Cross-Reference: Access to records. See§ 1.577(d).

Subpart B-Appeals-Rules ofPractice

General

§ 19.101 Rule 1; Authority, scope of rules,and construction.

(a) Authority. Pursuant to theauthority vested in the Administrator ofVeterans Affairs (38 U.S.C. 210(c)(1))there are hereby issued revised Rules ofPractice which govern proceedings inappeals to the Board of VeteransAppeals.

(b) Scope. These rules govern thepractices and procedures for processingappeals for the Board of VeteransAppeals. Where in any instance there isno applicable rule or procedure, thepresiding Board member before whomthe matter is pending may prescribe aprocedure which is consistent with theprovisions of title 38, United StatesCode, and these rules. (38 U.S.C. 4002)

(c) Construction. In accordance withthe agency's policy of providingassistance to the appellant, these rulesshall be construed to secure a just andspeedy decision in every appeal. (38U.S.C. 210)

Cross-References: Reasonable doubt See§ 3.102. Due process-procedural andappellate rights with regard to disability anddeath benefits and related relief. See § 3.103.§ 19.102 Rule 2; Effective date.

These rules are effective as of January1, 1980. They govern all proceedings incases filed on or after January 1, 1980.

§ 19.108 Rule 3; Governing criteria.(a) General. In the consideration of

appeals, the Board shall be bound by thelaws and regulations of the VeteransAdministration, decisions andinstructions of the Administrator ofVeterans Affairs, and precedentopinions of the General Counsel. (38U.S.C. 40o4{c))

(b) Manuals, circulars and opinions.In its appellate decisions, the Board isnot bound by agency manuals, circularsand similar administrative issues notapproved by the Administrator.Opinions of the Chief Medical Director,

Armed Forces Institute of Pathology,and independent medical expertsobtained pursuant to Rules 76 and 77(§ § 19.176 and 19.177) are only advisoryin nature. (38 U.S.C. 4004(c), 4009)

Cross-Reference: Nonprecedential natureof Board decisions. See Rule 97, § 19.197.

§ 19.104 Rule 4; Finality of decisions.(a) A decision of the Board of

Veterans Appeals is final (38 U.S.C.211(a), 4004(a)), with the exception of aclaim involving an insurance contract(38 U.S.C. 784)

(b) Reconsideration by the Board maybe accorded under Rules 85 through 90(§§ 19.185 through 19.190). (38 U.S.C.4003)

Docketing

§ 19.105 Rule 5; Docketing of appeals.(a) In order received. Applications for

review on appeal shall be docketed inthe order in which they are received. (38U.S.C. 4007)

(b) Remanded cases. Cases returnedto the Board following action pursuantto a remand shall assume their originalplaces on the docket. (38 U.C.S. 4007)

§ 19.106 Rule 6; Advance on the docket(a) A case may be advanced on the

docket for good cause. Examples of goodcause may be terminal illness, advancedage, extreme financial hardship, etc. Amotion for this purpose must be filedwith the Chairman, Board of VeteransAppeals, and specify the urgent natureof the cause. Interpretation of law ofgeneral application affecting otherclaims may afford a basis for advancinga case on the docket (38 U.S.C. 4007)

(b) If a motion to advance a case onthe docket is not granted, the appellantand representative will be immediatelynotified. If the motion to advance a caseon the docket is granted it will be notedin the decision when rendered. (38U.S.C. 4007)

Cross-Reference: Order of consideration.See Rule 75, § 19.175.

The Board

§ 19.107 Rule 7; Name and business hours.(a) Name. The name of the Board is

the Board of Veterans Appeals.(b) Business hours. The Board shall be

open during business hours on all daysexcept Saturday, Sunday and legalholidays. Business hours are from 8:00a.m. to 4:30 p.m.

(c) Mailing address. Mail to the Boardshould be addressed to: Chairman (01),Board of Veterans Appeals, 810 VermontAvenue, NW., Washington. D.C. 20420.(38 U.S.C. 4001(a))

Cross-Reference: Legal holidays. See Rule32, § 19.132.

§ 19.108 Rule 8; Establishment of theBoard.

The Board of Veterans Appeals isestablished by authority of andfunctions pursuant to 38 U.S.C. chapter71.

§ 19.109 Rule 9; Composition of the Board.The Board shall consist of a

Chairman, Vice Chairman, Members,and necessary professional,administrative, clerical andstenographic personnel. (38 U.S.C.4001(a))

§ 19.110 Rule 10; Appointment,assignment, and rotation of members.

(a) Appointment. Members of theBoard (including the Chairman and ViceChairman) shall be appointed by theAdministrator with the approval of thePresident of the United States. (38 U.S.C.4001(b))

(b) Assgnment. The Chairman maydivide the Board into sections of threemembers and assign the members of theBoard thereto. (38 U.S.C. 4002)

(c) Rotation. The Chairman may fromtime to time rotate the members of thesections. (38 U.S.C. 4002)

(d) Vacancy or absence. If, as a resultof a vacancy, absence, or inability of anassigned member to serve, a section ofthe Board does not have a fullcomplement of members, the Chairmanmay assign other members or direct theSection to proceed without anyadditional assignment of members. (38U.S.C. 4002)

§ 19.111 Rule 11; Function of the Board.The principal functions of the Board

are to make determinations of appellatejurisdiction, consider all applications onappeal properly before it, conducthearings on appeal, evaluate theevidence of record and enter decisionsin writing on the questions presented onappeal. (38 U.S.C. 4002, 4004)

§ 19.112 Rule 12;, Jurisdiction.(a) Statutory. The Board's jurisdiction

extends to all questions on claimsinvolving benefits under the lawsadministered by the VeteransAdministration. (38 U.S.C. 4004(a))

(b) Delegated authority. The Boardmay assume jurisdiction of anunappealed issue on its own motion in acase properly before it, as provided in§ 19.5. (38 U.S.C. 212(a))

§ 19.113 Rule 13; Board records.(a) Removal of records. No original

record, paper, document or exhibitcertified to the Board shall be takenfrom the Board except as authorized bythe Chairman or except as may benecessary to furnish copies or to

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transmit copies for other officialpurposes. (38 U.S.C. 3301)

(b) Release of information.Information requested from records,including copies of such records in thecustody of the Board of VeteransAppeals, will be furnished to the extentpermitted by law and VeteransAdministration regulations. (5 U.S.C.552, 552a; 38 U.S.C. 3301)

(c) Fees. The fees to be charged andcollected for the release of informationand for any copies will be in accordancewith § § 1.526, 1.555, and 1.577 of thistitle.

(d) Waiver of fees. When informationis requested from records certified toand in the custody of the Board, therequired fee may be waived if suchinformation is requested in connectionwith a pending appeal.

(e) Review of records. Information inthe records may be reviewed by agencyemployees on a "need to know" basis. (5U.S.C. 552a(b)(1))

Cross-References: Release of informationfrom Veterans Administration claimantrecords. See § § 1.500-1.527. Release ofinformation from Veterans Administrationrecords other than claimant records: See§ § 1.550-1.559. Safeguarding personalinformation in Veterans Administrationrecords. See §§ 1.575-1.584.

Notification of Appellate Rights

§ 19.114 Rule 14; Notification of right toappeal.

The claimant and the representative, if any,will be informed of the right to initiate anappeal and the time within which to do so,the right to a personal hearing and the right torepresentation. This information will beincluded in each notification of adetermination of entitlement ornonentitlement to Veterans Administrationbenefits by the agency of original jurisdiction.(38 U.S.C. 4005(a))

Cross-Reference: What constitutes anappeal. See Rule 17, § 19.117.

§ 19.115 Notification of right to appeal Inadministrative appeals and contestedclaims.

(a) Administrative appeals. Claimantswill be notified of administrativeappeals pursuant to Rule 40 (§ 19.140).(38 U.S.C. 4008)

(b) Contested claims. Contestingclaimants will be notified of appellaterights pursuant to Rule 43 (§ 19.143). (38U.S.C. 4005A(a))

§ 19.116 Rule 16; Decision notification.After a decision has been rendered by

the Board, all parties to the appeal andthe representatives, if any, will benotified of the results. (38 U.S.C. 4004(a),(d))

Commencement of Appeal

§ 19.117 Rule 17; What constitutes anappeal.

An appeal consistsof a timely filednotice of disagreement in writing and,after a statement of the case has beenfurnished, a timely filed substantiveappeal. (38 U.S.C. 4005)

Cross-References: Notice of disagreement.See Rule 18, § 19.118. Substantive appeal. SeeRule 23, § 19.123. Place of filing, notice ofdisagreement and substantive appeal. SeeRule 27, § 19.127. Time limit for filing. SeeRule 29, § 19.129.

§ 19.118 Rule 18; Notice of disagreementA written communication from a

claimant or the representativeexpressing dissatisfaction ordisagreement with an adjudicativedetermination of an agency of originaljurisdiction (the VeteransAdministration regional office, medicalcenter or clinic which notified theclaimant of the action taken) willconstitute a notice of disagreement. Thenotice of disagreement should be interms which can be reasonablyconstrued as a desire for review of thatdetermination. It need not be expressedin any special wording. (38 U.S.C. 4005)

§ 19.119 Rule 19; Action by agency oforiginal jurisdiction on notice ofdisagreement.

(a) Preliminary action. When a noticeof disagreement is timely filed, theagency of original jurisdiction maydevelop and review the claim again. (38U.S.C. 4005(d)(1))

(b) Statement of the case. If nopreliminary action is required or when itis completed, the agency of originaljurisdiction will prepare a statement ofthe case pursuant to Rule 20 (§ 19.120),unless the issue or issues are resolvedby granting the benefits sought in theappeal or the notice of disagreement iswithdrawn by the appellant or therepresentative. (38 U.S.C. 4005(d)(1))

Cross-References: Place of filing, notice ofdisagreement and substantive appeal. SeeRule 27, § 19.127. Time limit for filing. SeeRule 29, § 19.129.

§ 19.120 Rule 20; Statement of the case.(a) Purpose. The statement of the case

should provide the appellant notice ofthose facts and applicable laws andregulations upon which the agency oforiginal jurisdiction based itsdetermination of the Issue or Issues. Itshould be complete enough to allow theappellant to present written and/or oralarguments before the Board of VeteransAppeals. (38 U.S.C. 4005(d)(1))

(b) Contents. A statement of the caseshall contain:

(1) A summary of the evidence in thecase relating to the issue or issues withwhich the appellant or representativehas expressed disagreement.

(2) A summary of the applicable lawand regulations, with appropriatecitations.

(3) The determination of the agency oforiginal jurisdiction on each issue andthe reasons for each such determinationwith respect to which disagreement hasbeen expressed. (38 U.S.C. 4005(d)(1))

§ 19.121 Rule 21; Furnishing the statementof the case and Instructions for filing asubstantive appeal.

(a) Copies of statement of the case.The statement of the case will beforwarded to the appellant at the latestaddress of record and a separate copyprovided to the representative (if any).(38 U.S.C. 4005(d)(3))

(b) Information on filing substantiveappeal. With the statement of the case,the appellanit and the representative willbe furnished information on the rightand time limit to file a substantiveappeal, as well as hearing andrepresentation rights, and VA Form 1-9,Appeal to Board of Veterans Appeals.Instructions to the appellant state that:

(1) The benefits sought must beclearly identified.

(2) The substantive appeal should setout specific arguments as to error of factor law, related to the issues.

(3] The appellant will be presumed tobe in agreement with any statement offact contained in the statement of thecase to which no exception is taken.

(4) The agency of original jurisdictionmay close the appeal for failure torespond to the statement of the case.

(5) The Board of Veterans Appealswill base its decision on the evidenceand argument of record, and will not belimited to that cited in the statement ofthe case. (Approved by the Office ofManagement and Budget under OMBcontrol number 2900-0085) (38 U.S.C.4005(d))

Cross-Reference: Substantive appeal. SeeRule 23, § 19.123.

§ 19.122 Rule 22; Supplemental statementof the case.

A supplemental statement of the case,so identified, will be furnished to theappellant and representative, if any,when additional pertinent evidence isreceived, when a material defect isdiscovered, or when, for any otherreasons, the original statement isinadequate under the requirements ofRule 20 (§ 19.120). A supplementalstatement of the case will also be issuedfollowing development pursuant to aremand of the Board. A supplemental

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statement of the case is not requiredfollowing a hearing on appeal beforefield personnel when no additionalpertinent evidence is received, when amaterial defect is not discovered orwhen the original statement is adequateunder the requirements of Rule 20

N 1M.12). (38 U.S.C. 4005(d))Cross-References Consideration of

additional evidence received by the Board ofVeterans Appeals. See Rule 74, § 19.174.Remand for further development See Rule 82,§ 19.182

§ 19.123 Rule 23; Substantive appeal.(a) Substantive appeal. A substantive

appeal shall consist of a properlycompleted VA Form 1-9, Appeal toBoard of Veterans Appeals, orcorrespondence containing thenecessary information. The appealshould set out specific argumentsrelating to errors of fact or law. To theextent feasible the agument.should berelated to specific items in the statementof the case. This is the last action theappellant needs to take to perfect theappeal. The Board will construe sucharguments in a liberdl manner forpurposes of determining whether theyraise issues on appeal. (Approved by theOffice of Management and Budget underOMB control number 2900-0085) (38U.S.C. 4005(d)(4)-(5))

(b) Certification. Following receipt ofthe substantive appeal, the agency oforiginal jurisdiction will certify the caseto the Board of Veterans Appeals.Certification is accomplished by theexecution of VA Form 1-8, Certificationof Appeal. Its purpose is to identify theissues for appellate consideration and to'serve as a check list for the originatingagency to ensure that the appealsdevelopment procedures have beenadequate, particularly as they affect theappellant's due process rights. (38 U.S.C.4005)

Cross-Reference: Furnishing the statementof the case and instructions for filing asubstantive appeal See Rule 21(b),§ 19.121(b].§ 19.124 Rule 24; Closing-failure torespond to itatement of the case.

The agency of original jurisdictionmay close the appeal without notice toan appellant for failure to respond to astatement of the case within the periodallowed. However, if a response issubsequently received within the 1-yearappeal period (except for contestedclaims), the appeal will be considered tobe reactivated. (38 U.S.C. 4005(d)(3))

Cross-Reference: Time limit for filing. SeeRule 29(b), § 19.129(b).

§ 19.125 Rule 25; WithdrawaL(a) Notice of disagreement A notice

of disagreement may be withdrawn inwriting before a timely substantiveappeal is filed. (38 U.S.C. 4005(d)(1))

(b) Substantive appeal. A substantiveappeal may be withdrawn in writing atany time before the Board enters adecision except where withdrawalwould be detrimental to the appellant.(38,U.S.C. 4005(d)(3))

(c) Who may withdraw. Withdrawalmay be by the appellant or theauthorized representative (person ororganization) except that arepresentative may not withdraw eithera notice of disagreement or substantiveappeal filed by the appellant personally.The agency of original jurisdiction maynot withdraw a notice of disagreementor a substantive appeal after filing ofeither or both. (38 U.S.C. 4005(b)[2)

Cross-References: Substantive appeal. SeeRule 23, § 19.123. Timely filing of appealquestioned within the agency of originaljurisdiction. See Rule 33, § 19.133. Untimelyfiling of appeal protested by claimant. SeeRule 35, § 19.135. Adequacy of thesubstantive appeal. See Rule 37, § 19.137.

§ 19.126 Rule 26; DismissaLAppeals which fail to allege specific

error of fact or law in the determinationbeing appealed may be dismissed. Theappellant and/or representative will benotified of the dismissal action. (38U.S.C. 4005(d)(5), 4008)

Cross-Reference: Reconsideration. SeeRules 85-90, § § 19.185-19.190.

Filing

§ 19.127 Rule 27; Place of fillrg notice ofdisagreement and substantive appeal.

The notice of disagreement andsubstantive appeal shall be filed withthe Veterans Administration office fromwhich the claimant received notice ofthe determination being appealed. (38U.S.C. 4005(b)(1), (d)(3))

§ 19.128 Rule 28; Who can file an appeal.(a) Persons authorized. A notice of

disagreement and a substantive appealmay be filed by a claimant personally orby an accredited representative of arecognized organization, by an attorneyor by an agent, if a proper power ofattorney or declaration ofrepresentation, as applicable, is onrecord or accompanies such notice ofdisagreement or appeal. (38 U.S.C.4005(b)(2))

(b) Claimant rated incompetent byVeterans Administration or underdisability and unable to file. If anappeal is not filed by a person listed inparagraph (a) of this section, and theclaimant is rated incompetent by theVeterans Administration or has a

physical, mental or legal disabilitywhich prevents the filing of an appeal onhis or her own behalf, a notice ofdisagreement and a substantive appealmay be fied by a fiduciary appointed tomanage the claimant's affairs by theVeterans Administratiorl or a court, orby a person acting as next friend if theappointed fiduciary fails to take neededaction or no fiduciary has beenappointed. (38 U.S.C. 4005(b)(2))

(c) Claimant under disability and ableto file. Notwithstanding the fact that afiduciary may have been appointed for aclaimant, an appeal filed by a claimantwill be accepted. (38 U.S.C. 4005(b)(2))

Cross-References: Who can file an appealin contested claims. See Rule 44, § 19.144.Recognized organizations. See Rule 51,§ 19.151. Attorneys. See Rule 52, § 19.152.Agents. See Rule 53, § 19.153. Other personsas representative. See Rule 54. § 19.154.

§ 19.129 Rule 29; Time limit for filing.

(a) Notice of disagreement. A noticeof disagreement shall be filed within Iyear from the date of mailing ofnotification of the initial review anddetermination; otherwise, thatdetermination will become final. Thedate of the letter of notification will beconsidered the date of mailing forpurposes of determining whether atimely appeal has been filed. (38 U.S.C.4005(bJ([))

(b) Substantive appeal. A substantiveappeal-shall be filed within 60 days fromthe date of mailing of the statement ofthe case, or within the remainder of the1-year period from the date of mailing ofthe notification of the initial review anddetermination being appealed,whichever period ends later. The date ofthe statement of the case itself will beconsidered the date of mailing forpurposes of determining whether atimely appeal has been filed. Where asupplemental statement of the case isfurnished, a period of 30 days will beallowed for response. (38 U.S.C.4005(b)(1), (d)(3))

Cross-Reference: Time limits for filing incontested claims. See rule 45, § 19.145.

§ 19.130 Rule 30; Extension of time forfiling.

(a) General. An extension of the 60-day period for filing a substantiveappeal or the 30-day period forresponding to a supplemental statementof the case may be granted for goodcause shown. A request for such anextension should be in writing and mustbe made prior to expiration of the timelimit for filing the substantive ippeal.The request for extension should befiled with the Veterans Administrationoffice from which the claimant received

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notice of the determination beingappealed. That same office will make adetermination as to extension. A denialof a request for extension may beappealed to the Board. (38 U.S.C.4005(dl(3))

(b) Additional evidence filed. Thefiling of additional evidence after receiptof notice of an adverse determinationshall not extend the time limit forinitiating or completing an appeal fromthat determination. (38 U.S.C. 4005(d)(3))

Cross-References: Extension of time forfiling in contested claims. See Rule 48,§ 19.148. Evidence. See Rules 72-74,§ § 19.172-19.174. New claim after appellatedecision. See Rule 94, § 19.194.

§ 19.131 Rule 31: Computation of timelimit.

(a) Acceptance of postmark date. Anotice of disagreement or a substantiveappeal postmarked prior to expiration ofthe applicable time limit will beaccepted as having been timely filed. (38U.S.C. 4005(b)(1))

(b) Computation of time limit. Incomputing the time limit for filing anotice of disagreement or a substantiveappeal, the first day of the specifiedperiod will be excluded and the last dayincluded. Where the time limit wouldexpire on a Saturday, Sunday, orholiday, the next succeeding workdaywill be included in the computation. (38U.S.C. 4005(b)(1))

§ 19.132 Rule 32; Legal holidays.For the purpose of Rule 31 (§ 19.131),

the legal holidays, in addition to anyother day appointed as a holiday by thePresident or the Congress of the.UnitedStates, are as follows: New Yeaf'sDay-January 1; Inauguration Day-January 20 of every fourth year or; if the20th falls on a Sunday, the nextsucceeding day selected for publicobservance of the inauguration;Washington's Birthday-third Mondayin February; Memorial Day-lastMonday in May; Independence Day-July 4; Labor Day-first Monday inSeptember; Columbus Day-secondMonday in October; Veteran's Day-November 11; Thanksgiving Day-fourthThursday in November, and ChristmasDay-December 25. (5 U.S.C. 6103)

§ 19.133 Rule 33; Timely filing of appealquestioned within the agency of originaljurisdiction.

If, within the agency of originaljurisdiction, there is a question as to thetimely filing of a notice of disagreementor substantive appeal, the proceduresfor an administrative appeal must befollowed. (38 U.S.C. 4005(d)(3), 4006)

Cross.References: Administrative appeal.See Rule 38, § 19.138. Officials authorized and

time limits for filing administrative appeals.See Rule 39, § 19.139. Notification toclaimant. See Rule 40, § 19.140. Merge ofadministrative appeal and claimant's appeal.See Rule 41, § 19.141. Effect of decision onadministrative or merged appeal. See Rule 42,§ 19.142.

§ 19.134 Rule 34; Adequacy of notice ofdisagreement questioned within the agencyof original jurisdiction.

If. within the agency of originaljurisdiction, there is a question as to theadequacy of a notice of disagreementthe procedures for an administrativeappeal must be followed. (38 U.S.C.4005(d)(3), 4006)

Cross-References: Administrative appeal.See Rule 38, § 19.138. Officials authorized andtime limits for filing administrative appeals.See Rule 39, § 19.139. Notification toclaimant. See Rule 40, § 19.140. Merge ofadministrative appeal and claimant's appeal.See Rule 41, § 19.141.Effect of decision on administrative ormerged appeal. See Rule 42, § 19.142.

§ 19.135 Rule 35; Untimely filing of appealprotested by claimant.

If the claimant or his/herrepresentative protests an adverse

* determination made by the agency oforiginal jurisdiction with respect totimely filing of the notice ofdisagreement or substantive appeal, theclaimant will be furnished a statementof the case. (38 U.S.C. 4005(d))

§ 19.136 Rule 36; Inadequacy off the noticeof disagreement.

If the claimant or his/herrepresentative protests an adversedetermination made by the agency oforiginal jurisdiction with respect toadequacy of the notice of disagreement,the claimant will be furnished astatement of the case. (38 U.S.C. 4005(d))

§ 19.137 Rule 37; Adequacy of thesubstantive appeal.

A decision as to the adequacy ofallegations of error of fact or law in asubstantive appeal will be made by theBoard of Veterans Appeals. When theBoard raises the issue'of adequacy ofthe substantive appeal, the appellantand representative, if any, will be givennotice of the-issue and a period of 60days following the date on which suchnotice is mailed to present writtenargument or to request a hearing topresent oral argument on this question.The date of the letter of notification willbe considered the date of mailing thenotice. (38 U.S.C. 4005(d)(3), 4008)

§ 19.138 Rule 38; Administrative appeal(a) General. An administrative appeal

from an agency of original jurisdictiondetermination is an appeal taken by anofficial of the Veterans Administration

authorized to do so to resolve a conflictof opinion or a question of a claiminvolving benefits under lawsadministered by the VeteransAdministration. Such appeals may betaken not only from determinationsinvolving dissenting opinions but alsofrom unanimous determinations denyingor allowing the benefit claimed, inwhole or in part. (38 U.S.C. 4006)

(b) Form of appeal. An administrativeappeal is entered by a memorandumentitled "Administrative Appeal" inwhich the issues and the basis for theappeal are set forth. (38 U.S.C. 4006)

Cross-Reference: Restriction as to changein payments pending determination ofadministrative appeals. See § 19.4.

§ 19.139 Rule 39; Officials authorized andtime limits for filing administrative appeals.

The Administrator of Veterans Affairsauthorizes certain officials of theVeterans Administration to fieadministrative appeals within specifiedtime limits.

(a) Central office.-(1) Officials. TheChief Benefits Director or a servicedirector of the Department of VeteransBenefits, the Chief Medical Director or aservice director of the Department ofMedicine and Surgery, and the GeneralCounsel are so authorized.

(2) Time limit. Such officials must filean administrative appeal within I yearfrom the date of the determination, orwithin I year from the date of mailingnotice of such determination, whicheveris later. (38 U.S.C. 4006)

(b) Agencies of original jurisdiction.-(1) Officials. Directors, adjudicationofficers, and officials at comparablelevels in field offices deciding anyclaims for benefits, from anydetermination originating within theirestablished jurisdiction, are alsoauthorized.

(2) Time limit. The director orcomparable official must file anadministrative appeal within 6 monthsfronr the date of the determination orwithin 6 months from the date of mailingnotice of the determination, whicheveris the later date. Officials below thelevel of director must do so within 60days from such date. (38 U.S.C. 4006)

(c) The date of mailing. With respectto paragraphs (a) and (b) of this section,the term "date of mailing" is defined asthe date of the letter of notification tothe claimant. (38 U.S.C. 4005)

"§19.140 Rule 40; Notification to claimantWhen an administrative appeal is

entered, the claimant and therepresentative, if any, will be promptlyfurnished a copy of the memorandumentitled "Administrative Appeal," or an

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adequate summary thereof, outlining thequestion at issue and'will be allowed aperiod of 60 days to join in the appeal ifhe/she so desires. The claimant willalso be advised of the effect of suchaction and preservation of normalappeal rights if he/she does not elect tojoin. (38 U.S.C. 4006)

§19.141 Rule 41; Merger of administrativeappeal and claimant's appeal.

If the claimant or the representativeelects to join in the administrativeappeal, it becomes a merged appeal andthe rules governing an appeal initiatedby a claimant are for application. Thepresentation of evidence or argument inresponse to notification of the right tojoin in the administrative appeal will beconstrued as merging the appeal. If the.claimant or representative does notauthorized the merger, he/she shouldhold such evidence or argument inabeyance until resolution of theadministrative appeal. (38 U.S.C. 4006)

§19.142 Rule 42; Effect of decision onadministrative or merged appeal.

(a) Appeal merged. If theadministrative appeal is merged, theappellate decision on the merged appealwill constitute final disposition of theclaimant's appellate rights.

(b) Appeal not merged. If the claimantdoes not authorize merger, normalappellate rights on the same issue arepreserved, and a decision in a separateappeal perfected by the claimant will beentered by another section of the Board.The period of time, from the date ofnotification to the claimant of theadministrative appeal to the date of theBoard's decision on the administrativeappeal, is not chargeable to the claimantfor purposes of perfecting the appeal. (38U.S.C. 4006)

Cross-Rderences: Notification of appellaterights. See Rules 14-16, § § 19.114-19.116.Commencement of appeal. See Rules 17-26,§ § 19.117-19.126. Disqualification of members.See Rule 83, § 19.183.

Contested Claims

§19.143 Rule 43; Notification of right toappeal In simultaneously contested claims.

A simultaneously contested claimexists where one claim is allowed andanother claim involving the same benefitis disallowed or the allowance of oneclaim would result in the payment of alesser benefit to another claimant. Allinterested parties will be specificallynotified of the action taken and of theright and time limit for initiation of anappeal, as well as hearing andrepresentation rights. (38 U.S.C.4005A(a)) -

Cross-Reference: Hearings insimultaneously contested claims. See Rule 67,§ 19.167.

§ 19.144 Rule 44; Who can file an appeal incontested claims.

In a contested claim, any claimant orrepresentative of a claimant may file anotice of disagreement or substantiveappeal within the time limits set out inRule 45 (§ 19.145). (38 U.S.C. 4005(b)(2),4005A)

Cross-Reference: Who can file an appeal.See Rule 28, § 19.128.

§19.145 Rule 45; Time limits for filing Incontested claims.

(a) Notice of disagreement. Whereone claim is allowed and one denied, orthe allowance of one claim would resultin payment of a lesser amount toanother claimant, the notice ofdisagreement from the person adverselyaffected must be filed within 60 daysfrom the date of mailing the notificationof the review or determination;otherwise, that determination willbecome final. The date of the letter ofnotification will be considered the dateof mailing for purposes of determiningwhether a timely notice of disagreementhas been filed. (38 U.S.C. 4005A(a))

(b) Substantive appeal. A substantiveappeal must be filed within 30 days fromthe date of mailing of the statement ofthe case. The date on the statement ofthe case will be considered the date ofmailing for purposes of determiningwhether a timely appeal has been filed,(38 U.S.C. 4005A(b))

Cross-References: Computation of timelimit. See Rule 31, § 19.131. Legal holidays.See Rule 32, § 19.132. Timely filing of appealquestioned within the agency of originaljurisdiction. See Rule 33, § 19.133.

§ 19.146 Rule 46; Notice to contestingparties on receipt of notice ofdisagreement.

Upon the filing of a notice ofdisagreement in a contested claim, allparties in interest and theirrepresentatives will be furnished a copyof the statement of the case. The partiesin interest who filed notices ofdisagreement will be duly notified of theright and time limit to file a substantiveappeal and furnished with VA Form 1-9,Appeal to Board of Veterans Appeals.(Approved by the Office of Managementand Budget under OMB control number2900-0085) (38 U.S.C. 4005A(b))

Cross-Reference: Furnishing the statementof the case and instructions for filing asubstantive appeal. See Rule 21, § 19.121.

§ 19.147 Rule 47; Notice of substance ofappeal to other contesting parties.

When a substantive appeal is filed,the substance of the appeal will be

communicated to the other interestedparties, and a period of 30 days will beallowed for filing a brief or argument inanswer. (38 U.S.C. 4005A(b))§ 19.148 Rule 48; Extension of time forfiling in contested claims.

An extension of the 30-day period tofile a substantive appeal may be grantedfor good cause shown. In granting anextension in contested claims,consideration will be given to theinterests of the other parties involved. Arequest for such an extension should bein writing and must be made prior toexpiration of the time limit for filing thesubstantive appeal. (38 U.S.C. 4005A(b))

§ 19.149 Rule 49; Notices to lastaddresses of record In contested claims.

Notices in contested claims will beforwarded to the last address of recordof the parties concerned and such actionwill constitute 'sufficient evidence ofnotice. (38 U.S.C. 4005A(b))

Representation

§ 19.150 Rule 50; Right to representation.An appellant will be accorded full

right to representation in all stages of anappeal by a recognized organization,attorney or agent, or other personauthorized to represent claimants before,the agency of original jurisdiction. (38U.S.C. 3401-3405, 4005(a))

§ 19.151 Rule 51; Recognizedorganizations.

(a) Designation by power of attorney.The designation by power of attorney toa recognized organization will be byduly executed VA Form 23-22,Appointment of Veterans ServiceOrganization as Claimant'sRepresentative. (38 U.S.C. 4005(b)(2))

(b) Revocation or change of power ofattorney. An @ppellant may revoke apower of attorney to a recognizedorganization at any time, irrespective ofwhether another representative isconcurrently designated. The revocationis effective when notice of such isreceived by the VeteransAdministration. (Approved by the Officeof Management and Budget under OMBcontrol number 2900-0321) (38 U.S.C.4005(b)(2))

Cross-Reference: Powers of attorney. See§ 14.31

§ 19.152 Rule 52; Attorneys.(a) Designation. A signed consent by

the appellant or appellant's guardianpermitting access to all information inthe individual's records and a signedstatement by the attorney that he/she isauthorized to represent the appellantprepared on the attorney's letterhead

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will be accepted as an executed powerof attorney. If it is contemplated that alegal intern, law student, or paralegalwill assist in the appeal, written consentmust be obtained from the appellant. (38U.S.C. 3401, 3404) 1

(b) Revocation or change ofrepresentation by an attorney. Anappellant may revoke a declaration ofrepresentation by an attorney at anytime, irrespective of whether anotherrepresentative is concurrentlydesignated. The revocation is effectivewhen notice of such is received by theVeterans Administration. (38 U.S.C.3404)

Cross-References: requirements forrecognition of representatives, agents, andattorneys. See § 14.629(c). Powers of attorney.See § 14.631. Legal interns, law students andparalegals. See Rule 56, § 19.156.

§ 19.153 Rule 53; Agents.

(a) Designation. The designation of anagent will be by a duly executed powerof attorney (VA Form 2-22a,Appointment of Attorney or Agent asClaimant's Representative, or itsequivalent). The designation must be toan individual, rather than a firm orpartnership. (38 U.S.C. 3404)

(b) Admission to practice. Theprovisions of 38 U.S.C. 3404 and 38 CFR14.629(b) are applicable to admission ofagents to practice before the VeteransAdministration. Authority for makingdeterminations concerning admission topractice rests with the General Counselof the Veterans Administration, and anyquestions concerning admissions shouldbe addressed to that office, 810 VermontAvenue, N.W., Washington, D.C. 20420.

(c) Revocation or change of power ofattorney. An appellant may revoke apower of attorney to an agent at anytime, irrespective of whether anotherrepresentative is concurrentlydesignated. The revocation is effectivewhen notice of such is received by theVeterans Administration. (38 U.S.C.3403, 3404)

Cross-Reference: Powers of attorney. See§ 14.631.

§ 19.154 Rule 54; Other persons asrepresentative.

(a) General. Any competent personmay be recognized as a representativefor a particular claim, unless that personhas been barred from practice before theVeterans Administration. Thedesignation must be by VA Form 2-22a,Appointment of Attorney or Agent asClaimant's Representative, or itsequivalent, which stipulates that no feeor compensation of any nature will becharged or paid for the services. (38

- U.S.C. 3403)

(b) More than one appellant. If anindividual has been recognized as arepresentative for one appellant and hasnot appealed such limitation to theOffice of the General Counsel asprovided in § 14.630 of this title, he/shemust obtain permission from theChairman of the Board of VeteransAppeals to represent any otherappellant before the Board. (38 U.S.C.3403)

(c) Revocation or change of power ofattorney. An appellant may revoke apower of attorney 'to such an individualat any time, irrespective of whetheranother representative is concurrentlydesignated. The revocation is effectivewhen notice of such is received by theVeterans Administration. (38 U.S.C.3403, 3404)

§ 19.155 Rule 55; General.(a) One representative. A specific

claim may be prosecuted at any' onetime by only one recognizedorganization, attorney, agent or otherperson properly designated to representthe appellant. (38 U.S.C. 4005(b)(2))

(b) Change of status from spouse tosurviving spouse. A power of attorneyor designation of representationsubmitted by the spouse of a veteranmay continue in effect after theveteran's death. (38 U.S.C. 3402-3404)

(c) Recognition of representation afterthe death of the veteran. A recognizedorganization, attorney, agent or personproperly designated to represent aveteran may, in the event of the death ofthe veteran, be recognized as therepresentative of the survivors for areasonable period thereafter- but not asrepresentative of a survivor who hasappointed another representative. (38U.S.C. 3403-3404)

(d) Reasonable period. For purposesof paragraph (c) of this section, areasonable period may be considered asthat which would enable a potentialappellant to recover sufficiently fromthe emotional stress and strain causedby the veteran's death so as to enablehim/her to exercise his/her right torepresentation. (38 U.S.C. 3402-3404)

Cross-References: Inspection of records byor disclosure of information to recognizedrepresentatives of organizations andrecognized attorneys. See § 1.525(d). Powersof attorney. See § 14.631(e).

§ 19.156 Rule 56; Legal Interns, lawstudents and paralegals.

Legal interns, law students andparalegals must be under the direc'tsupervision of a recognized attorney(Rule 52, § 19.152) in order to preparecases before the Board of VeteransAppeals. These individuals may presentoral arguments at hearings only if the

recognized attorney is present.Otherwise, such individuals mustqualify as agents or representativesunder Rule 53 or 54 (§ 19.153 or 19.154).Legal interns, law students andparalegals who desire to participate at ahearing before the Board must makeadvance arrangements with the Chief ofthe Hearing Section" and submit writtenauthorization from the attorney namingthe individual who will be participatingin the hearing. (38 U.S.C 3404,4005(b)(2))

Hearings

§ 19.157 Rule 57; General.(a) Right to a hearing. A hearing on

appeal shall be granted if an appellantor a representative expresses a desire toappear in person. (38 U.S.C. 4002)

(b) Purpose of hearing. The purpose ofa hearing is to receive argument andtestimony relevant and material to theappellate issue. (38 U.S.C. 4002)

(c) Nonadversary proceedings.Hearings conducted by and for theBoard are ex parte in nature andnonadversary. Parties to the hearing willbe permitted to ask questions, includingfollow-up questions, of all witnesses butcross-examination will not be permitted.Proceedings will not be limited by legalrules of evidence, but reasonableboundd of relevancy and materiality willbe maintained. (38 U.S.C. 4002)

§ 19.158 Rule 58; Who may appear.The appellant, the authorized

representative, and members ofCongress and their staffs may appearand present argument and testimony insupport of an appeal. At the request ofan appellant, a Veterans BenefitsCounselor of the VeteransAdministration may present the appealat a hearing before the Board ofVeterans Appeals or before VeteransAdministration field personnel acting forthe Board. (38 U.S.C. 4002, 4005(b)(2))

Cross-Reference: Witnesses. See Rule 65,§ 19.165.

§19.159 Rule59; Schedullngandnoticeofhearing.

(a) General. To the extent thatfacilities permit, hearings will bescheduled at the convenience ofappellants and their representatives,with consideration of the travel distance.involved. While a statement of the caseshould be prepared prior to the hearingit is not a prerequisite for entitlement toa hearing, and an appellant may requestthat the hearing be scheduled prior toissuance of the statement of the case.(38 U.S.C. 4002)

(b) Notification of hearing. When ahearing is scheduled, the person

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requesting it will be notified of its timeand place, and of the fact that thegovernment may not assume anyexpense incurred by the appellant, therepresentative or witnesses attendingthe hearing. (38 U.S.C. 4002)

(c) Extension of time. An extension oftime for appearance at a hearing may begranted for good cause shown, with dueconsideration of the interests of otherparties if a contested claim is involved.Ordinarily, hearings will not bepostponed more than 30 days. Examplesof godd cause include the following:illness of the appellant and/orrepresentative, difficulty in obtainingrecords, and unavailability of a witness.

-(38 U.S.C. 4002, 4005A)

§ 19.160 Rule 60; Place of hearing.A hearing may be held in one of the

following places at the option of theappellant:

(a) Before a section of the Board ofVeterans Appeals in Washington, D.C.

(b) To the extent scheduling permits,before a traveling section of the Boardof Veterans Appeals during regularlyscheduled visits to VeteransAdministration facilities.

(c) Before appropriate personnel in theVeterans Administration regional orother office nearest the appellant'sresidence, acting as a hearing agency forthe Board of Veterans Appeals. Suchpersonnel will allow the appellant and/or representative to present anyargument and testimony as well as anywitnesses before the panel. Rule 62(§ 19.162) and Rules 64-67 (§ § 19.164-19.167) are applicable to this-paragraph.Hearings under paragraph (a) of thissection are held before members whowill make the final decision on theappeal. Hearings under paragraph (b) ofthis section are normally held beforemembers who will make the finaldecision on appeal unless the issue onappeal involves radiation exposure,agent orange exposure or asbestosis. Inthese instances the decision will besigned by Board membersspecializing in those issues. Ifa travel Board panel is comprised of lessthan three Board members, theChairman will assign additionalmember(s) in Washington, D.C., toconstitute a three-member panel. (38U.S.C. 4002)

Cross-References: Determinations by theBoard. See 38 U.S.C. 4003. Voting by Boardmembers. See Rule 81, § 19.181.

§ 19.161 Rule 61; Composition of thehearing panel.

The Board of Veterans Appealshearing panel shall consist of apresiding Member acting as thechairman, and usually two other Board

members, all of whom will participate inthe final decision. When, after a hearing,a Board member assigned to a panel isunable to participate in the finaldecision, the Chairman may assign asubstitute pursuant to Rule 10 (§ 19.110).(38 U.S.C. 4002)

Cross-Reference: Appointment, assignment,and rotation of members. See Rule 10(d),§ 19.110(d).

§ 19.162 Rule 62; Functions of thepresiding member.

The presiding member is responsiblefor the conduct of the hearing,administration of the oath oraffirmation, and for ruling on questionsof procedure. The presiding member willassure that the course of the hearingremains relevant to the issue on appealand that there is no cross-examinationof the parties or witnesses. (38 U.S.C.-4002)

Cross-References: Authority, scope of rules,and construction. See Rule 1(b), § 19.101(b).General (Hearings). See Rule 57(c),§ 19.157(c).-

§ 19.163 Rule 63; Prehearing conference.Any representative desiring a

prehearing conference with thepresiding member must make advancearrangements through the Chief of theHearing Section. Such conferenceshould be limited to issue identification,stipulations of fact and proceduralmatters. (38 U.S.C. 4002) ,

§ 19.164 Rule 64; Procurement ofadditional evidence following a hearing.

If it appears during the course of ahearing that additional evidence wouldassist in the review of the questions atissue, the president member may directthat the record be left open so that theappellant and any representative mayobtain the desired evidence. Thepresiding member will determine theperiod of time during which the recordwill stay open, considering the amountof time estimated by the appellant orrepresentative as needed to obtain theevidence and other factors adducedduring the hearing; the period will notcustomarily exceed 60 days, and will beas short as possible in order thatappellate consideration of the case notbe unnecessarily delayed. (38 U.S.C.4002, 4004)

Cross-References: Consideration ofadditional evidence received by the agencyof original jurisdiction. See rule 73, § 19.173.Consideration of additional evidencereceived by the Board of Veterans Appeals.See Rule 74, § 19.174.

§ 19.165 Rule 65; Witnesses.(a) General. The testimony of

witnesses will be heard. An appellant ora representative may arrange for the

voluntary appearance of any witnesseshe/she desires, but the Board will notrequire the appearance of any VeteransAdministration official or other person.(38 U.S.C. 4002)

(b) Testimony under oath. Alltestimony must be given under oathunless excused because of religiousprinciples or other good cause. If thewitness declines to take an oath, he/sheshould be informed that the testimonywill be permitted on affirmation. Thewitness should then be requested tomake a solemn declaration as to thetruth of the testimony about to be given.The witness may use such words as he/she considers binding on his/herconscience. Administration of the oathfor the sole purpose of presentingcontentions and argument is notrequired. (38 U.S.C. 4002)

§ 19.166 Rule 66; Expenses

No expenses incurred by an appellant,counsel, or Witnesses incident toattendance at a hearing may be paid by

* the government. (38 U.S.C. 111)§ 19.167 Rule 67; Hearings Insimultaneously contested claims.

If a hearing is scheduled for eitherparty to a simultaneously contestedclaim, the Board will either accord theother contesting claimant or his/herrepresentative the opportunity to bepresent but not participate, or willadvise the other contesting claimant orhis/her representative in writing of thesubstance of the arguments orcontentions advanced.-In either event, areasonable time will be allowed forargument or testimony in refutation, anda separate hearing for the othercontesting claimant will be scheduledfor that purpose, if requested. (38 U.S.C.4005A)

§ 19.168 Rule 68; Recorded hearing.

(a) Board of Veterans Appeals. Thehearing proceedings before a Section ofthe Board shall be recorded and a tapeof these proceedings shall be on file atthe Board of Veterans Appeals. Awritten transcript or a copy of the tapemay be furnished without cost to theappellant or representative if sorequested at the time of or prior to thehearing; otherwise a charge may bemade in accordance with § 1.577 of thistitle.

(b) Field offices. The hearingproceedings before field office personnelafter the filing of a notice ofdisagreement shall be recorded and acopy of the complete transcriptincorporated as a permanent part of theclaims folder. A copy may be furnishedwithout cost to the appellant or

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representative if so requested at thetime of or prior to the hearing; otherwisea charge may be made in accordancewith § 1.577 of this title. (38 U.S.C. 4002)

§ 19.169 Rule 69;, Recording of hearings.An appellant or representative may

record the hearing with his/her ownequipment. Filming, videotaping ortelevising the hearing may be authorizedprovided a consent is obtained from theappellant and made a matter of record.In all such situations advancearrangements must be made with theChief of the Hearing Section. In no eventwill such additional equipment be usedif it interferes with the conduct of thehearing or the official recordingapparatus. (38 U.S.C. 4002)

Cross-Reference: Functions of the presidingmember. See Rule 62, § 19.162.

§ 19.170 Rule 70; Official transcript.The Board of Veterans Appeals

transcript is the only official transcript.(38 U.S.C. 4002)

§ 19.171 Rule 71; Alternate transcriptversions.

Alternate transcript versions preparedby the appellant and representative maybe considered as a supplementalargument and filed in the appellant'srecord. (38 U.S.C. 4002, 4005)

Evidence

§ 19.172 Rule 72; Submission of additionalevidence.

An appellant may submit additionalevidence or information as to theavailability of additional evidence afterinitiating an appeal. (38 U.S.C.4005(d)(1))

Cross-Reference: Extension of time forfiling. See Rule 30(b), § 19.130(b).

§ 19.173 Rule 73; Consideration ofadditional evidence received by the agencyof original jurisdiction.

(a) Evidence received prior to transferof records to Board of VeteransAppeals. Evidence received in theagency of original jurisdiction after anappeal has been initiated but prior totransfer of the records to the Board ofVeterans Appeals, including evidencereceived after certification has beencompleted, will be referred to the ratingor authorization activity for review anddisposition. A supplemental statementof the case will be furnished theappellant and his/her representative asprovided in Rule 22 (§ 19.122). (38 U.S.C.4005(d)(1))

(b) Evidence received after transfer ofrecords to the Board of VeteransAppeals. Additional evidence receivedin an agency of original jurisdiction afterthe records have been transferred to the

Board of Veterans Appeals for appellateconsideration will be forwarded to theBoard if it has a direct bearing on theappellate issue or issues. The Board willthen determine what procedural stepsare required with respect to theadditional evidence. (38 U.S.C. 4004(b),4005(d)(1))

Cross-References: Substantive appeal. SeeRule 23(b), § 19.123(b). Consideration ofadditional evidence received by the Board ofVeterans Appeals. See Rule 74, § 19.174.

§19.174 Rule 74; Consideration ofadditional evidence received by the Boardof Veterans Appeals.

The appellant and/or representativemay submit additional pertinentevidence following certification andtransfer of the appeal to the Board. Thisevidence, as well as any referred by theoriginating agency under Rule 73(b)(§ 19.173(b)), must be referred to theagency of original jurisdiction for reviewand preparation of a supplementalstatement of the case unless thisprocedural right is waived by theappellant. Such waiver must be inwriting or formally entered as part of thehearing transcript. (38 U.S.C. 4005)

Action by the Board

§ 19.175 Rule 75; Order of consideration.Applications for review on appeal -

shall be considered in the order in whichthey are entered on the docket, exceptthat a case may be advanced on thedocket fbr earlier consideration for goodcause shown. (38 U.S.C. 4007)

Cross-Reference: Advance on the docket.See Rule 6, § 19.106.

§ 19.176 Rule 76; Medical opinions.(a) Opinion of the Chief Medical

Director. The Board may obtain anexpert medical opinion from the ChiefMedical Director of the VeteransAdministration on medical questionsinvolved in the consideration of anappeal when, in its judgment, suchmedical expertise is needed forequitable disposition of the appeal. (38U.S.C. 4009(a))

(b) Armed Forces Institute ofPathology Opinions. The Board mayrefer pathologic material to the ArmedForces Institute of Pathology for reviewand expression of opinion' (38 U.S.C.4009(a))

Cross-Reference: Governing criteria. SeeRule 3, § 19.103.

§ 19.177 Rule 77; Independent medicalexpert opinions.

When, in the judgment of the Board,additional medical opinion is warrantedby the medical complexity orcontroversy involved in an appeal, theBoard may obtain an advisory medical

opinion from one or more medicalexperts who are not employees of theVeterans Administration. Opinions willbe secured, as requested by theChairman of the Board, from recognizedmedical schools, universities, clinics ormedical institutions with whicharrangements for such opinions havebeen made by the Administrator ofVeterans Affairs. An appropriate officalof the institution will select theindividual expert(s) to give an opinion.(38 U.S.C. 4009)

§ 19.178 Rule 78; Filing of requests for theprocurement of medical opinions.

The appellant or representative mayrequest that the Board obtain a medicalopinion under Rule 76 or 77 (§ 19.176 or19.177). Such request must be in writingand will be granted upon a showing ofgood cause, such as where complex orcontroversial medical issues areinvolved in the appeal. (38 U.S.C. 4002,4004(c), 4009)

§ 19.179 Rule 79; Notification of medicalopinions secured by the Board.

When an opinion under Rule 76 or 77.(§ 19.176 or 19.177) has been obtained bythe Board, a copy of such opinion will befurnished to the appellant'srepresentative or, subject to thelimitations provided in 38 U.S.C. 3301, tothe appellant if there is norepresentative. A period of 60 days willbe allowed for response. (38 U.S.C. 4005,4009)

§ 19.180 Rule 80; The decision.(a) Decisions based an entire record.

The appellant is presumed to be inagreement with any statement of factcontained in a statement of the case towhich no exception is taken. Decisionsof the Board, however, shall be based ona review of the entire record. (38 U.S.C.4005(d](4)-(5))

(b) Disposition of issues. The decisionof the Board will dispose of each issueon appeal by allowance, denial, remandor dismissal, in whole or in part. (38U.S.C. 4004(a)). (c) Format. The decision of the Boardshall be in writing and shall setforthspecifically the issue or issues,separately stated findings of fact andconclusions of law, and the reasons forthe Board's decision. (38 U.S.C. 4004(d))

§19.181 Rule 81; Voting by Boardmembers.

(a) Unanimous decisions. A decisionunanimously concurred in by theMembers of the Section and dulypromulgated shall be final. (38 U.S.C.4003(a))

(b) Dissent. Where the members donot agree, the Chairman of the Board

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Federal Register / Vol. 48, No. 34 / Thursday, February 17, 1983 -/ Rules and Regulations

may either concur with the majority, inwhich event this will constitute a finaldecision of the Board, or may directfurther consideration by two or moresections, not to exceed 12 members,including the section to which the casewas originally assigned. Any decisionby an expanded panel which is notunanimous will require approval of theChairman of the Board; if the membersare equally divided, the Chairman willparticipate in the decision by casting thedeciding vote. (38 U.S.C. 4003(b))

Cross-References: Appointment,assignment, and rotation of'members. SeeRule 10(d), § 19.110(d). Place of hearings. SeeRule 60, § 19.1.60. Composition of the hearingpanel. See Rule 61. § 19.161. Whenreconsideration is accorded. See Rule 85,§ 19.185.

§19.182 Rule 82; Remand for furtherdevelopment.

(a) General. When, during the courseof review, it is determined that furtherevidence or clarification of the evidenceor correction of a procedural defect isessential for a proper appellate decision,the section of'the Board shall remandthe case to the agency of originaljurisdiction, specifying the furtherdevelopment to be undertaken. (38U.S.C. 4002, 4004(a)]

(b) Review by agency of originaljurisdiction. Where the developmentresults in additional evidence, asupplemental statement of the case willbe furnished the appellant and anyrepresentative, and the records willagain be reviewed by the agency oforiginal jurisdiction. A supplementalstatement of the case will not berequired where the only purpose of theremand is to assemble recordspreviously considered by the agency oforiginal jurisdiction. If the case isremanded to cure a procedural defect,the Board may also require issuance of asupplemental statement of the case toassure full notification to the appellantof the status of the case. (38 U.S.C.4005(d)(1)

(c) Resubmission to Board ofVeterans Appeals. Unless the benefits atissue on appeal are awarded uponreview by the agency of originaljurisdiction, the records will be returnedto the Board of Veterans Appeals forcompletion of appellate review.Remanded cases will not be closed forfailure to respond to the supplementalstatement of the case. (38 U.S.C. 4005(d))

§ 19.183 Rule 83; Disqualification ofmembers.

(a) General. A member of the Boardshall disqualify himself/herself in ahearing or decision on an appeal from adetermination in which he/she

participated or had supervisoryresponsibility in the agency of originaljurisdiction prior to his/her appointmentas .a member of the Board, or wherethere are other circumstances whichmight give the impression of bias eitherfor or against the appellant. (38 U.S.C.4002)

(b) Appeal on same issue subsequentto decision on administrative appeal.Members of the Board signatory to thedecision on an administrative appealwill disqualify themselves from actingon a subsequent appeal by the claimanton the same issue. (38 U.S.C. 4002)

Cross-Reference: Effect of decision onadministrative or merged appeal. See Rule 42,§ 19.142.

§ 19.184 Rule 84; Administrativeallowance.

The Chairman or Vice Chairman,under authority delegated in 38 CFR19.5(b), may authorize an administrativeallowance, following review andrecommendation by members of theBoard, in adjudicative actions which areotherwise final. (38 U.S.C. 210(b), 212(a))

Reconsideration

§ 19.185 Rule 85; When reconsideration 16accorded.

Reconsideration of an appellatedecision may be accorded at any timeby the Board of Veterans Appeals onrequest by the appellant or his/herrepresentative or on the Board's ownmotion:

(a) Upon allegation of obvious error offact or law; or

(b] Upon discovery of new andmaterial evidence in the form of recordsor reports of the military, naval or airservice department concerned orofficially corrected service departmentrecord. (38 U.S.C. 4003, 4004(b))

§ 19.186 Rule 86; Filing and disposition ofa motion for reconsideration.

(a) Application requirements. Amotion for reconsideration shall setforth clearly and specifically the allegedobvious error(s) of fact or law in thedecision of the Board or otherappropriate basis for requestingreconsideration. This motion may befiled at any time. (38 U.S.C. 4003, 4008)

(b) Disposition. The Chairman or his/her designee Will review the sufficiencyof the allegations set forth in the motion.

(1) Motion denied. The appellant andrepresentative will be notified if themotion is denied. The notification willbe signed by the Chairman and willinclude reasons why the allegations arefound insufficient. This constitutes finaldisposition of the motion.

(2) Motion allowed. If the motion isallowed, the Chairman or his/her

designee will assign a reconsiderationpanel according to Rule 90 (§ 19.190).The appellant and representative will beso notified. At the time of notificationthe appellant and the representative willbe given a period of 60 days to presentadditional arguments. (38 U.S.C. 4003,4008)

§ 19.187 Rule 87; Evidence considered.Reconsideration of an appellate

decision for errior shall be limited toreview of the evidence of record at thetime the decision was entered, but theBoard may secure additional medical orlegal opinion. Additional evidence, apartfrom service department records,submitted following the decision beingreconsidered is subject to the provisionsof Rule 94 (§ 19.194) concerning new andmaterial evidence. (38 U.S.C. 4003, 4009)

Cross-Reference: When reconsideration isaccorded. See Rule 85, § 19.185.

§ 19.188 Rule 88; Remand pursuant toreconsideration.

In connection with a reconsideration,the Board may remand for the purposeof obtaining or developing additionalevidence. Such evidence may providethe basis for a reopened claim under theprovisions of Rule 94 (§ 19.194). (38U.S.C. 40o4(b))

§ 19.189 Rule 89; Hearings onreconsideration.

(a) Right to a hearing. After a motionfor reconsideration has been allowed, ahearing shall be granted if an appellantor representative desires to appear inperson. (38 U.S.C. 4002, 4003)

(b) Composition of the hearing panel.The hearing panel will include thosemembers who participated in theoriginal decision, if available and anyadditional members assigned by theChairman or his/her designee. (38 U.S.C.4002, 4003)

§ 19.190 Rule 90; Number of members onreconsideration panel.

(a) Board member(s) signatory todecision available. When a motion forreconsideration is allowed, theChairman or his/her designee willassign a panel to review the merits ofthe reconsideration. The number ofBoard members assigned to thereviewing panel shall be determined bydoubling the number of members whoparticipated in the original decision (to amaximum number of 12 members). Allmembers who participated in thedecision being reconsidered and are stillavailable will be assigned to the panel.(38 U.S.C. 4002)

(b) Board member(s) signatory todecision unavailable. When a motionfor reconsideration is allowed and the

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6980 Federal Register / Vol. 48, No. 34 / Thursday, February 17, 1983 1 Rules and Regulations

Board Members who participated in thedecision being reconsidered are nolonger available, the Chairman or his/her designee may assign a panelconsisting of three Board members toreview the merits of the reconsideration.(38 U.S.C. 4002)

Finality

§ 19.191 Rule 91; Harmless error.An error or defect in any decision by

the Board of Veterans Appeals whichdoes not affect the merits of the issue orsubstantive rights of the appellant willbe considered harmless and not a basisfor vacating, reversing, or modifyingsuch decision. (38 U.S.C. 4003)

§ 19.192 Rule 92, Finality ofdeterminations of the agency of originaljurisdiction where appeal is not perfected.

A determination on a claim by theagency of original jurisdiction of whichthe claimant is properly notified shallbecome final if an appeal is notperfected as prescribed in Rule 29(§ 19.129). (38 U.S.C. 4005(c))

§ 19.193 Rule 93; Finality ofdeterminations of the agency of originalJurisdiction affirmed on appeal.

When the determination of the agencyof original jurisdiction is affirmed by theBoard of Veterans Appeals, suchdetermination becomes a part of theappellate decision. (38 U.S.C. 4004(a))

§ 19.194 Rule 94; New claim after appellatedecision.

When a claimant requests that a claimbe reopened after an appellate decisionand submits evidence in support thereof,a determination as to whether suchevidence is new and material must bemade and, if it is, whether it provides anew factual basis for allowing the claim,An adverse determination as to eitherquestion is appealable. (38 U.S.C.4004(b))

§ 19.195 Rule 95; Death of appellantduring pendency of appeal.

When an appeal is pending before theBoard of Veterans Appeals at the timeof the appellant's death, the Board maycomplete its action on the issuesproperly before it without applicationfrom the survivors. (38 U.S.C. 4008)

Crose-References: General(Representation). See Rule 55(c), § 19.155(c).Claim for death benefits by survivor-priorunfavorable decision. See Rule 96, § 19.196.

§ 19.196 Rule 96, Claim for death benefitsby survivor--prior unfavorable decision.

Issues involved in a survivor's claimfor death benefits will be decidedwithout regard to any prior dispositionof those issues during the veteran'slifetime. (38 U.S.C. 4004(b))

§ 19.197 Rule 97; Nonprecedentlial natureof Board decisions.

The Board will strive for consistencyin issuing its decisions. Previouslyissued Board decisions will beconsidered binding only with regard tothe specific case decided; priordecisions in other appeals may beconsidered in a case to the extent thatthey reasonably relate to the case. Eachcase presented to the Board will bedecided on the basis of the individualfacts of the case in light of applicablelaw and procedure. (38 U.S.C. 4004(a))

Privacy Act

§ 19.198 Rule 98; Privacy Act request-appeal pending.

When a Privacy Act request is filed byan individual seeking records pertainingto him or her (under § 1.577 of this title)and the relevant records are in thecustody of the Board, such request willbe reviewed and processed prior toappellate action on that individual'sappeal. (5 U.S.C. 552a; 38 U.S.C. 4002,4007)

§ 19.199 Rule 99; Amendment of appellatedecisions.

A request for amendment of anappellate decision under the Privacy Act(5 U.S.C. 552a) may be entertained.However, such a request may not beused in lieu of, or to circumvent, theprocedures established under Rules 85through 90 (§ § 19.185 through 19.190).The Board will review a request forcorrection of factual information setforth in a decision. Where the request toamend under the Privacy Act is anattempt to alter a judgment made by theBoard and thereby replace theadjudicatory authority and functions ofthe Board, the request will be denied onthe basis that the Act does not authorizea collateral attack upon that which hasalready been the subject of a decision ofthe Board. The denial will satisfy theprocedural requirements of § 1.579 ofthis title. If otherwise appropriate, therequest will be considered one forReconsideration under Rules 85 through90 (§ § 19.185 through 19.190). (5 U.S.C.552a(d); 38 U.S.C. 4003, 4008)

§ 19.200 Rule 100; lnde ,to appellatedecisions.

(a) Index. The appellate decisions ofthe Board of Veterans Appeals havebeen indexed to facilitate access to thecontents of the decisions (BVA Index1-01-1). The index is published quarterlyin microfiche form with an annualcummulation. It is organized to providecitations to Board of Veterans Appealsdecisions under subject terms chosen todescribe the issues adjudicated in theappeals. Cases which pertain to the

same issues are grouped together in theindex under alphabetically arrangedsubject terms. The index is available atVeterans Administration regional officesand at the Board of Veterans Appeals inWashington, D.C. Microfiche copies canbe obtained by writing to the AppellateIndex and Retrieval Staff (01C1), Boardof Veterans Appeals, Washington, D.C.20420.

(b) Copies of decisions. The index canbe used to locate citations to decisionswith issues similar to those of concernto an appellant. Each indexed decisionhas a locator number assigned to it, e.g.,82-07--0001. This number should be usedwhen requesting a paper copy of thatdecision. These request should bedirected to the Appellate Index andRetrieval Staff (01C), Board of VeteransAppeals, Washington, D.C. 20420.(5 U.S.C. 552a(2))[FR Doec. 83-4005 Filed 2,-16-83: 45 am]

BILUNG CODE 6320-01-M

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[A-3-FRL 2267-2; EPA Docket No.AWO36PA]

Commonwealth of Pennsylvania;Approval of a Revision of thePennsylvania State ImplementationPlan-

AGENCY: Environmental ProtectionAgency.ACTION: Final rule.

SUMMARY: The Commonwealth ofPennsylvania has requested a revisionto its State Implementation Plan (SIP) toincorporate an alternative emissionreduction plan or "bubble."Pennsylvania has requested that theplan be approved by EPA for theHomestead and Edgar Thomson plantsof the United States Steel Corporation(USSC) in Allegheny County,Pennsylvania. This plan consists ofbubble regulations which apply to sulfurdioxide emissions from ten categories ofmiscellaneous Homestead sources, theHomestead Open Hearth Furnaces, theCarrie Furnaces boilers (Homestead),and the Edgar Thomson soaking pits andboilers. The plan allows USSC toincrease on a temporary basis sulfurdioxide emissions from Carrie boilersNos. 3 and 4 when the increases areoffset by sulfur dioxide reductions at theremaining listed sources due toshutdown or use of natural gas. Insupport of this bubble, an air qualityanalysis was conducted. EPA has

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13522 Federal Register I Vol. 55, No. 70 / Wednesday, April 11, 1990 / Rules and Regulatioas

published in the Federal Register onWednesday, December 6, 1989 (54 FR50367) as Treasury Decision 8275. Therules related to compliance with the newreporting requirements imposed bysection 60SOM for returns relating topersons receiving contracts from Federalexecutive agencies.FOR FURTHER INFORMATION CONTACT:Keith E. Stanley at 202-566-3367 (not atoll-free number).SUPPLEMENTARY INFORMATION:.

Background

The final regulations that are thesubject of these corrections relate tosection 6050M, which was added to theInternal Revenue Code by the TaxReform Act of 1986.

Need for Correction

As published, the final regulationscontain errors which may prove to bemisleading and are in need ofclarification.

Correction of Publication

Accordingly, the publication of thefinal regulations which were the subjectof FR Doc. 89-28396, is corrected asfollows:

Para. 1. On page 50369, in thepreamble, first column, line 10, thelanguage "(including into (or treated asentered" is corrected to read "(includingtheir contract actions treated as newcontracts entered into (or treated asentered".

§ 1.5060M [Amended]Par. 2. On page 50370, second column,

§ 1.5060M-1(b)(2)(iv) should read:

(iv) Certain schedule contracts. Forpurposes of this section, any of thefollowing contracts entered into onbehalf of one or more Federal executiveagencies is not a "contract" to bereported by the General ServicesAdministration or the Department ofVeteran's Affairs at the time ofexecution:

(A) A Federal Supply ScheduleContract entered into by the GeneralServices Administration,

(B) An Automated Data ProcessingSchedule Contract entered into by theGeneral Services Administration, or

(C) A schedule contract entered intoby the Department of Veteran's Affairs.Instead, an order placed by a Federalexecutive agency, including the GeneralServices Administration or theDepartment of Veteran's Affairs, undersuch a schedule contract is a "contract"for purposes of this section.

§ 1.6050M (Amended]Par. 3. On page 50371, second column,

line 4 of § 1.6050M-1(dj(5)(i)(A) which

reads "26 CFR 1.6050M-1(d)(5), to make,on the" should read "26 CFR 1.6050M-1(d)(5) to make, on the".

Par. 4. On page 50372, second column,immediately following the text of§ 301.6050M-1, the language "Approved:November 6, 1989. Lawrence B. Gibbs,Commissioner of Internal Revenue."should read as follows:Lawrence B. Gibbs,Commissioner of Internal Revenue.

Approved: November 6, 1989.Kenneth W. Gideon,Assistant Secretary of the Treasury.

Dale D. Goode,Chief Regulations Unit, Assistant ChiefCounsel (Corporate).[FR Doc. 90-8135 Filed 4-10-90; 8:45 amlBILUNG CODE 4830-01-M

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 117

[CGD--90-02]

Drawbridge Operation Regulations;Lake Pontchartraln, LA

AGENCY: U.S. Coast Guard, DOT.ACTION: Final rule; revocation.

SUMMARY: This amendment revokes theregulations for the Southern RailwaySystems south drawspan on LakePontchartrain, in Orleans and St.Tammany Parishes, Louisiana, becausethe drawspan has been replaced with afixed span. Notice and public procedurehave been omitted from this action dueto the conversion of the span.EFFECTIVE DATE: This regulationbecomes effective on May 11, 1990.FOR FURTHER INFORMATION CONTACT.Mr. John Wachter, BridgeAdministration Branch, Eighth CoastGuard District, telephone (504) 589-2065.SUPPLEMENTARY INFORMATION: Thisaction has no economic consequences. Itmerely revokes regulations that are nowmeaningless because they pertain to adrawbridge span that no longer exists.Consequently, this action is consideredto be non-major under Executive Order12291 and nonsignificant underDepartment of Transportation regulatorypolicies and procedures (44 FR 11034,February 26, 1979). Since there is noeconomic impact, a full regulatoryevaluation is unnecessary. Because nonotice of proposed rulemaking isrequired under 5 U.S.C. 553, and becausethis action will not have a significantimpact on a substantial number of smallentities, this rulemaking is exempt from

the provisions of the RegulatoryFlexibility Act (5 U.S.C. 605(b)).

Drafting Information

The drafters of this regulation are Mr.John Wachter, project officer, andCommander J.A. Unzicker, projectattorney.

List of Subjects in 33 CFR Part 117

Bridges.

Regulation

In consideration of the foregoing, part117 of title 33, Code of FederalRegulations, is amended as follows:

PART 117-DRAWBRIDGEOPERATION REGULATIONS

1. The authority citation for part 117continues to read as follows:

Authority: 33 U.S.C. 499; 49 CFR 1.46 and 33CFR 1.05-1(g).

2. Section 117.467(a) is revised to readas follows:

§ 117.467 Lake Pontchartrain(a) The south draw of the Si1 bridge

near New Orleans shall open on signal ifat least 48 hours 'notice is given. In caseof emergency, the draw shall openwithin 12 hours and shall be kept incondition for immediate operation untilthe emergency is over.

Dated: March 22, 1990.W.F. Merlin,RearAdmiral U.S. Coast Guard, Commander,Eighth Coast Guard District.[FR Doc. 90-8328 Filed 4-10-90 8:45 am]BILLING CODE 4910-14-"

DEPARTMENT OF VETERANS

AFFAIRS

38 CFR Part 3

RIN 2900-AC54

Procedural Due Process

AGENCY: Department of VeteransAffairs.ACTION: Final rule.

SUMMARY: The Department of VeteransAffairs (VA) has amended itsadjudication regulations on proceduraldue process for VA claimants andbeneficiaries and the eligibility criteriafor retroactive awards based onliberalizing laws or administrativeissues. These amendments arenecessary because of the need for morespecificity in VA regulations onprocedural due process and because ofa

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Federal Register / Vol. 55, No. 70 / Wednesday, April 11, 1990 / Rules and Regulations

VA General Counsel opinion oneligibility for retroactive benefits. Theeffect of these amendments will be toimprove and more clearly defineprocedural due process rights andretroactive eligibility criteria.EFFECTIVE DATE: May 11, 1990.FOR FURTHER INFORMATION CONTACT.Don England, Consultant, RegulationsStaff, Compensation and PensionService, Veterans BenefitsAdministration, Department of VeteransAffairs, 810 Vermont Avenue NW.,Washington, DC 20420, (202) 233-3005.SUPPLEMENTARY INFORMATION: Onpages 37797 through 37801 of the FederalRegister of September 28, 1988, VApublished proposed amendments to title38, Code of Federal Regulations, onprocedural due process and theeligibility criteria for retroactive awardsbased on liberalizing laws oradministrative issues. Interestedpersons were given until October 28,1988, to submit comments, suggestions,or objections to the proposed rules.

VA received comments on theproposed rules from the VietnamVeterans of America and the PuertoRico Public Advocate for VeteransAffairs. The comments andrecommendations with respect to eachproposed amendment have beensummarized and are set forth belowtogether with the actions and/orresponses of VA.

Comments and Recommendations

Section 3.103

One commenter recommended thatthe proposed regulation be amended tostate that required notices of VAproposed and final actions be sent to aclaimant at his or her last knownaddress.

VA does not agree that inclusion ofthis wording in the regulation wouldprovide any additional benefit for VAclaimants with regard to their generalright to notice of decisions on theirclaims. Barring an error or a delay inprocessing a notification of a change ofaddress, all written communications to aclaimant are sent to his or her lastknown address. Insertion of thisrequirement in VA regulations wouldnot lessen the number of errors orreduce delays. For this reason nochanges are being made based on thiscomment. Since additional protectionagainst erroneous deprivation ofbenefits would not be afforded toclaimants through adoption of thissuggestion, the Government's burden inimplementing the suggestion is not beingdiscussed.

Both commenters recommended arequiremert for VA to furnish a copy of

any notice to a claimant to the properlydesignated representative of theclaimant.

The regulatory requirement forfurnishing copies of notices todesignated representatives is containedin 38 CFR 1.525(d), and inclusion in thissection would be redundant. Therefore,no change is being made based on thesecomments.. One commenter recommended that

this section include a requirement that aclaimant and his or her properlydesignated representative be providednotification of submissions from VAregional offices to VA Central Office(VACO) for advisory opinions,administrative reviews, administrativeappeals, legal opinions, and medicalopinions from VA health careprofessionals, and that copies of suchsubmissions and resulting replies beroutinely furnished to the claimants andrepresentatives prior to decisions beingrendered. The commenter states thebelief that advisory opinions from theDirector, Compensation and PensionService, are binding on regional officerating boards and Hearing Officers, andthat an opportunity to examine andrebut such opinions prior to the decisionis required in order to adequatelyprovide procedural due process.

The majority of claims processed inVA regional offices are of a routinenature involving relatively simple issuesof entitlement, but some claims involveextremely complex and/or novel issuesand require application of a variety oflaws and regulations. In some cases, dueto circumstances arising from thecomplexity of an issue, a regional officemay request an advisory opinion fromVACO, a medical opinion, and/or alegal opinion. Administrative reviewsand administrative appeals are actionswhich occur following a decision by aregional office, and therefore, have norelationship to procedural due processwithin the context of this section.

Advisory opinions are advisory onlyand, while such opinions should begiven considerable weight by regionaloffices in reaching a determination on aparticular claim, are not binding on theregional offices. The same is true ofmedical opinions from VA health careprofessionals. There is no issue of a lackof opportunity to be heard by thedecisionmaker where an advisory ormedical opinion has been issuedbecause the decision making authority isretained by the regional office. VA doesnot believe that due process includes arequirement that such nonbindingadvice be communicated to claimantsand/or beneficiaries prior to an initial,appealable decision being made. VAbelieves the appellate process, which

provides Statements of the Casedetailing the basis and rationale for adenial of benefits, affords claimantsand/or beneficiaries ample opportunityto argue their views.

Information from,-or copies of, theseopinions or other evidence consideredby VA in reaching decisions may bemade available to claimants and/or dulyauthorized agents or representativesunder the authority of 38 CFR 1.500 etseq. These regulations also apply torequests for copies of legal opinions,which are an important part of the VAdecision making process, and arerendered based on facts of record at thetime of the opinion. Legal opinions maybe challenged following regional officedecisions as part of the appellateprocess or through the submission ofadditional evidence.

Regulatory requirements for providingdetailed reasons for decisions andadditional procedural safeguards arealso being adopted with publication ofthis notice concerning proposed benefitreductions. VA finds these regulatoryprovisions to be adequate to guardagainst erroneous deprivation ofbenefits. Marginal gains in that regard, ifany, afforded to claimants by thecommenter's suggestions would be faroutweighed by the costs ofimplementation to the Government.Such costs would include employee timerequired to copy and mail documents toclaimants and beneficiaries. In addition,decisions would be delayed pendingreply or expiration of a period allowedfor reply. For these reasons therecommended changes are not beingadopted.

One commenter recommendedrequiring that VA include citations of allapplicable regulations in notices ofproposed or final decisions, and that thereasons for the proposed or finaldecision include a statement of theexact change in the claimant'scircumstances on which the change isproposed or based.

VA does not agree that therecommended changes would provideany additional benefit for VA claimantswith regard to their general right tonotice of decisions on their claims. Therecommended changes would requireVA to include detailed statements andregulatory citations on favorable as wellas unfavorable decisions. Clearly, thereis no risk of erroneous deprivation withfavorable decisions, and the suggestedchanges provide no additionalprotection to successful claimants whilebeing extremely burdensome on theGovernment in terms of the impact onautomated claims processing andtimeliness of decisions. Implementation

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13524 Federal Register / Vol. 55, No. 70 / Wednesday, April 11, 1990 / Rules and Regulations

of the suggested changes would virtuallyeliminate current ability to notifyclaimants and beneficiaries through ourcurrent means of automated dataprocessing and would requiretranscription of dictated notifications ofdecisions on all disability claims.

The same burden on the Governmentwould be experienced with unfavorabledecisions while little, if any, additionalprotection against erroneous deprivationof benefits would be afforded toclaimants by the recommended changes,Under current rules unsuccessfulclaimants are provided with a statementof the reasons for the decision which issufficient to allow the claimant todecide whether to challenge the decisionthrough the VA appellate process. If anotice of disagreement is filed within ayear of notification of the adversedecision, a Statement of the Case isprovided to the claimant which setsforth the detailed reasons for thedecision and the applicable regulatorycitations. The recommended changeswould essentially require that aStatement of the Case be provided alongwith every decision on every claim. VAbelieves that the requirements of dueprocess are more than satisfied whensuch a procedure is followed only withrespect to challenged decisions. Detailedreasons and additional proceduralsafeguards are also being adopted withpublication of this notice concerningproposed benefit reductions. For thesereasons the recommended changes as tocontent of notices are not being adopted.

Also recommended was the additionof a requirement for VA to providenotice of the availability for review ofVA regulations, procedural manuals,instructions and guidelines and arequirement for VA to maintain publicreading facilities for this purpose at allits offices.

Notice of availability for review of thepublications mentioned is contained in38 CFR 1.552, with regulatoryrequirement for maintenance of publicreading facilities contained in paragraph( ) of that section. Therefore, inclusionin this section would be redundant andno change is being made based on thesecomments.

One commenter stated that theintroductory phrase "Except asotherwise provided" appearing in theproposed revision of § 3.103(b)(2) isconfusing, and a reference to theexceptions should be included.

While we do not agree that the citedphrase is confusing or that the suggestedchange provides additional proceduralsafeguards, we do acknowledge thatthere is no burden on the Government inmaking such a change. Since therecommended change will eliminate a

perception of confusion, we have agreedto the recommendation and haveinserted a reference to the exceptions inthe final rule.

One commenter maderecommendations regarding each of thefirst three exceptions to the requirementfor pretermination/reductionnotifications as proposed in§ 3.103(b)(3). It was recommended thatthe exception for benefit checksreturned as undeliverable be forapplication only following reasonableefforts to obtain a more current addressthrough a search of all filing systemsmaintained by VA.

Upon further review of existing rulesregarding the circumstances covered bythis exception, the exception has beendeleted from the final rule and theremaining subparagraphs renumberedaccordingly. The provisions of 38 CFR1.710 specify that VA benefits may notbe denied on the basis of lack of amailing address and state actions to betaken upon return of benefit paymentswhich are undeliverable to the addressof record in VA.

The same commenter took exceptionto VA not being required to furnishpretermination/reduction notices toclaimants where the adverse actionresulted from information provided bythe claimant with what the commentercalled a presumption by VA of theclaimant's knowledge that suchinformation would be used to calculateentitlement to benefits. The commenter'sconcern arose because of alleged smallprint and confusing wording used by VAto notify claimants of theirresponsibilities while receiving VAbenefits. The commenter did not feelthat furnishing of such notices shouldresult in a presumption of the claimant'sknowledge by VA.

VA administers several disabilityprograms to millions of beneficiariesthroughout the world. We realize thatlaws and regulations governing thepayment of benefits by VA are, in somecases, quite complex. This proposedexception is limited to informationwhich is numerical in nature such aschanges in income and number ofdependerits. We attempt tocommunicate these relatively simplerules to the recipients of VA benefitsthrough written comments andinstructions which we feel adequatelyexplain their responsibilities under thelaw and regulations. Evidence of recordwhich establishes that claimants havebeen given such notice should, in ourview, result in those claimants beingpresumed to have knowledge of theeffects of certain numerical changes incircumstances which he or she reportsto VA.

VA is aware that, due to individualcircumstances, this presumption ofknowledge may not be valid for allbeneficiaries. We further realize that theproposed exception is not so precise asto preclude any possibility of erroneousdeprivation of benefits through itsimplementation. VA is, however, of theopinion that the exception as proposed,when applied to the generality of cases,meets the burden of the Governmentwith regard to due process procedures.To implement the suggested changewould be to assume that writteninstructions furnished by VA regardingthe information covered in thisexception is not understood by manybeneficiaries. VA feels this to be anillogical assumption. In addition, theelimination of this exception would beextremely burdensome on theGovernment in terms of the impact onhuman resources, automated claimsprocessing, and timeliness of decisions.For these reasons, the recommendedchanges in this exception based oninformation provided by claimants orbeneficiaries are not being adopted.

It was also recommended that the •proposed exception regarding failure toreturn required eligibility verificationreports only apply when VA canproduce a dated file copy of a letter oftransmittal showing a report was mailedto the beneficiary's last known address,with a copy to the address of anyproperly designated representative.

VA does not agree with thisrecommendation because we feelelimination of the proposed exceptionwould provide little, if any, protectionagainst erroneous deprivation ofbenefits. Eligibility verification reportsare self-contained reporting forms whichare furnished to claimants for reportingof information required to confirmcontinuing entitlement to VA benefitsbeing paid at the time the report isrequested. The forms used for reportingare produced and mailed through thesame VA automated data processingsystem used to issue benefit paymentsto beneficiaries at their last knownaddress. A computer control forconfirmation of return of the form isestablished at the time the form ismailed. Cover letters are generally notrequired for mailing and therefore, nofile copy is available.

VA finds the current proceduresadequate to guard against erroneousdeprivation of benefits in the vastmajority of cases. Additionalprotections, if any, afforded to claimantsby the commenter's suggestion would befar outweighed by the costs ofimplementation to the Government.Such costs would include purchase of

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additional printing equipment forprinting of file copies of letters andhuman resources to file these copies inindividual files of beneficiaries. Forthese reasons the recommended changesare not being adopted..

One commenter recommended thatthose claimants who are unemployedand/or in receipt of VA pensionbenefits, or raising issues regarding VApension eligibility, be reimbursed fortravel expenses to and from a hearingsite in the same manner and at the samerate as for travel in connection withphysical examinations for disabilityevaluations. The commenter furtherrecommended that the proposed right toa hearing shown in § 3.103(c) beamended to include a claimant's Tight toa hearing at any VA facility, or throughtelephonic or two-way televisedarrangements in certain circumstances.

It is the duty of VA to make personalhearings reasonably available. Currentrules provide such availability infacilities located at each of the VAregional offices having adjudicativefunctions. Hearings are held so thatclaimants and beneficiaries have anopportunity to present oral testimony orother evidence in support of theirclaims. Such evidence can also bepresented to VA through submission ofaffidavits or other written documents.

The current rules regarding personalhearings, as well as the availability ofalternative methods for submission ofevidence, meet the Government'sresponsibility of providing procedureswhich guard against erroneousdeprivation of benefits to claimants andbeneficiaries.

In order to implement the suggestedchanges, VA would be required toreimburse travel expenises, provide"roving" hearing officials, purchaseequipment capable of offering recordedtwo-way televised or telephoniccommunications, and hire personnelwith the ability to operate and maintainsuch equipment. VA is of the opinionthat this added burden on theGovernment would not be justified bythe marginal gains, if any, which might.be realized in guarding againsterroneous deprivation of benefits. Forthese reasons the recommended changesare not being adopted.

The recommendation was also madeto specifically require that hearings beheld before VA personnel who woulddecide the issues raised, or in thealternative, that personnel who hold thehearing but do not make the decision berequired to provide written assessmentof the credibility of all witnesses as partof the hearing record.

. In the majority of cases, hearings areheld before VA personnel who

ultimately decide the issues raised.However, in certain circumstances suchis not the case. Specific circumstancesinclude, but are not limited to, hearingsheld in conjunction with an employee'sbenefits claim at the office ofemployment followed by decisionrendered by the office havingjurisdiction of the claims file, casesinvolving prolonged absence of aHearing Officer following a hearing, andrequests to have hearings held atregional offices other than the officehaving jurisdiction of the claims file forconvenience of the claimant and/orrepresentative. Implementation of thesuggested change would remove allflexibility from VA regarding thescheduling of personal hearings andmanagement of pending workloads inthis area, and in some cases wouldactually result in VA inability to providehearings under circumstances requestedby claimants and/or representatives.

Witness credibility is important butnot dispositive of an issue; in any event,it typically can be ascertained from areading of the hearing transcript in thecontext of the evidentiary record. VAshould not be bound by a subjectiveopinion of an employee regardingwitness credibility, but should rely onthe content of the hearing transcript inconjunction with the other evidence ofrecord in reaching a determination onthe claim at issue. Moreover, the caselaw to date reveals there is no dueprocess requirement that an assessmentbe made of a witness' credibilityregardless of whether the decisionmakeris the person(s) who conducted thehearing.

VA feels the current rules, whichallow flexibility in the schedulingprocess, allow for adequate proceduresto guard against the erroneousdeprivation of benefits and that thesuggested changes would not provideimprovements toward that end.Therefore, the recommended changesare not being adopted.

One commenter recommended thatproposed § 3.103(c)(2) be amended toprovide notice of the VA authority toissue a subpoena under 38 U.S.C. 3311and insertion of a cross reference to thecontrolling regulation, 38 CFR 2.1.

Proceedings before VA arenonadversarial in nature. They are acombined effort to develop the true factsin each case, and VA has an obligationto assist claimants and beneficiaries inthat regard. The extent of thatassistance includes the authority toissue subpoenas -under 38 CFR 2.1(a),The use of this authority is discretionarywith VA.

In addition to the redundancy whichwould be created by repeating VA

authority to issue subpoenas in thissection, VA believes such repetitivenesswould result in the misconception thatsubpoenas are issued routinely to obtainevidence when, in fact, such issuance byVA is rare. Before the authority isexercised, it must first be determinedthat such issuance is necessary and thatthe evidence being sought cannot beobtained in some other way. Alternativemethods of obtaining the evidencealmost always exist and these methodsvary depending on the nature of theevidence being sought. For thesereasons the recommended changes arenot being adopted.

One commenter recommended thatthe proposed revision of 38 CFR 3.103(e)regarding the right to representationprovide that failure of VA to furnishcopies of notifications to properlydesignated representatives of claimantswould extend any applicable time limitsfor actions by those claimants. Thiscomment is being addressed in thesection covering 38 CFR 3.109, where asimilar suggestion was provided by thesame commenter.

Section 3.105

Both commenters recommended thatthe proposed revision referring to abeneficiary's right to a predeterminationhearing be amended to require a fixedperiod of time between the VA notice ofthe scheduled hearing date and the dateof the hearing. One commenterrecommended that a period of at least 10days be specified in the regulation toallow time for hearing preparation.

The proposed rule uses the term"reasonable time" to allow flexibility inthe scheduling process. At times, basedon certain circumstances, expeditioushearings are requested or agreed to bybeneficiaries and/or theirrepresentatives. In the absence of such arequest or prior agreement, a hearingscheduled less than 10 days in the futurewould be an extremely rare occurrence.Such rarity is dictated by large pendinghearing schedules. Occasionally,because of a cancellation, a time slotbecomes available, and this slot is filledeither with someone who has expresseda desire for an expeditious hearing orsomeone who has agreed to such ahearing -when informed of theavailability.

VA has always been agreeable toextensions of hearing dates uponrequest if good cause is shown, and VAis of the opinion that implementation ofthe proposed suggestion would providelittle, if any, additional protectionagainst erroneous deprivation ofbenefits. However, since no burden willbe placed on the Government, we are

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amending the final rule to implement thesuggested change with a stipulation thatthe time period may be waived throughagreement between VA and thebeneficiary or representative.

One commenter recommended thatthe proposed regulation should beamended to provide for a delay of thefinal decision by VA where apredetermination hearing was requestedby a beneficiary but was not held due tocircumstances beyond control of thebeneficiary. Health problems, includinghospitalization, were indicated as anexample of such circumstances.

VA has consistently appliedprocedures to recognize that delays inactions by beneficiaries may arise dueto circumstances beyond their control.While we do not believe that inclusionof the suggested wording in the finalregulation will provide any additionalprocedural safeguards against erroneousdeprivation of benefits, we doacknowledge that there is no burden onthe Government in making such achange. Since the recommended changewill provide regulatory authority forlong established adjudicative procedure,we have agreed to the recommendationand have included the phrase "withoutgood cause" in the final rule togetherwith examples of what would constitutesuch circumstances.

One commenter recommended thatthe proposed regulation be amended torequire that evidence obtained pursuantto development by VA following apredetermination hearing be madeavailable to the beneficiary and anyproperly designated representative inadvance of the final decision. Thiswould afford an opportunity for rebuttalof that evidence prior to VA reaching adecision on the issue.

VA does not agree that therecommended changes would provideany additional benefit for VAbeneficiaries with regard to their right tofundamental fairness in reachingdecisions on their claims. Therecommended changes would requireVA to routinely provide copies ofrequested evidence, and to provideopportunity for rebuttal in all casesincluding those which would be decidedfavorably to the beneficiary under therules as proposed. Clearly, there is norisk of erroneous deprivation withfavorable decisions, and the suggestedchanges provide no additionalprotection to successful beneficiarieswhile being extremely burdensome onthe Government in terms of the impacton limited human resources andtimeliness of decisions. Employee timewould be required to copy and maildocuments to beneficiaries anddecisions would be delayed pending

reply or expiration of a period allowedfor reply.

Evidence obtained by VA following ahearing is usually obtained at therequest of the beneficiary and/orrepresentative of the beneficiary.Information from, or copies of, evidenceconsidered by VA in reaching decisionsmay be made available to beneficiariesand/or duly authorized agents orrepresentatives under the authority of 38CFR 1.500 et seq. Evidence for purposesof rebuttal can be submitted within theone-year period following the decisionon the claim either through the appealprocess or through a reopening of theclaim, thereby affording ampleopportunity for submission of suchevidence.

Regulatory requirements for providingdetailed reasons for decisions andadditional procedural safeguards arealso being adopted with publication ofthis notice concerning proposed benefitreductions. VA finds these regulatoryprovisions to be adequate to guardagainst erroneous deprivation ofbenefits. Marginal gains in that regard, ifany, afforded to beneficiaries by thecommenter's suggestions would be faroutweighed by the costs ofimplementation to the Government. Forthese reasons the recommended changesare not being adopted.

Section 3.109

One commenter noted that in thepreamble to the proposed amendmentVA admitted the wording of § 3.109(b) is"inappropriate with respect to dueprocess," and the effective date of theamendment should be the date the"inappropriate" wording first appearedin the regulation.

The effective date of the amendmentscontained in this notice will be asshown in the beginning of this notice.VA believes the amendment to the ruleto be a liberalizing measure that shouldhave only prospective application inclaims processing. Proceduralregulations are amended from time totime to recognize developing concepts ofdue process. In so doing, VA does notconcede that prior proceduresnecessarily resulted in deprivation ofprotected rights in individual claims. Inview of the burden which would beinvolved in searching the manythousands of claim decisions madeunder the prior regulation, VA does notbelieve it would be a productive use ofresources to attempt to determinewhether any claimant may have beendisadvantaged by failure to receivenotice of a time limit.

One commenter recommended thatthe proposed revision allow for theextension of any time limit when VA

fails to notify a claimant's properlydesignated representative. It was also'recommended that the regulation specifythat'an allegation of nonreceipt ofnotification of a time limit will besubstantiated by VA inability toproduce a file copy of such notificationshowing it was sent to the claimant, athis or her last known address, and theclaimant's properly designatedrepresentative.

We have reviewed the purpose of theregulation in light of this comment andbelieve that a modification consistentwith that purpose is in order. Byamending this regulation it is the intentof VA to ensure, to the. maximum extentpracticable, that notice of any time limitwithin which a claimant or beneficiarymust act, to perfect a claim or challengean adverse VA decision, is effectivelycommunicated.to that claimant orbeneficiary. Ineffective notice istantamount to no notice. Thus, there willbe circumstances in which good causefor extension of time limits exists. Forexample, the failure to provide notice toa claimant or beneficiary would clearlybe good cause for extending the timelimits for action.

Since it is not possible to delineate allof the fact situations which couldreasonably give rise to a finding of goodcause for extension of time limits, VAhas determined that each claim for timelimit extension should be adjudicated onits own merits. Extension of time limitsfor good cause shown is a concept thathas been adopted by other Federalagencies, notably the Department ofHealth and Human Services (20 CFR404.909) and the Office of PersonnelManagement (5 CFR 1201.12 and1201.22). The concept has also beenrefined by case law.

VA has traditionally been quitereasonable in extending time limitswhen requests for such extensions arereceived prior to expiration of the timelimits involved. Once a time limit hasexpired, however, it is no longerreasonable to grant simple requests forextension of time. On the other hand, ifa claimant or beneficiary takes theaction which was required to have beentaken within the previously establishedtime limit and also shows good causewhy the period of the time limit shouldbe extended to cover the taking of thatrequired action, consideration of thespecial circumstances should beafforded. .

Accordingly, VA has revised 382CFR3.109[b)to provide that time limits foractions on the part'of claimants orbeneficiaries may be extended for goodcause shown. Where an extension isrequested after a time limit has expired,

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the action required of the claimant orbeneficiary must be taken concurrentwith or prior to the filing of a request forextension of the time limit, and goodcause must be shown as to why therequired action could not have beentaken during the original time periodand could not have been taken soonerthan it was. A favorable decision on theextension issue would automaticallymake the taking of the required actiontimely. Denials of such extensionswould be separately appealable issues.

Section 3.110One commenter recommended that

the proposed revision be amended tospecify that the beginning date of anytime limit period be the date of thepostmark on the envelope rather thanthe date on the letter of notification. Thecommenter states this would alleviatepenalizing a claimant due to delays inmailing of the notification by VA.

All time limits established by VAregulations are computed from the dateof the letter of notification. The date ofthe letter of notification is known byVA, whereas the date of the postmark isnot. VA is of the opinion that itsestablished time limits are generous.Even allowing for a delay of a few daysfor mail delivery, these limits provide.ample time for claimants to perfectclaims and appeals, and thus provideadequate protection against erroneousdeprivation of benefits. For thesereasons no changes are being madebased on this comment.

Section 3.114No comments were received regarding

the proposed amendments to thissection.

We appreciate the comments andsuggestions of those who responded topublication of the proposed rules. Theproposed rules are adopted with theamendments noted above and minorconforming amendments of a technicalnature. The final rules are set forthbelow.

The Secretary hereby certifies thatthese regulatory amendments will nothave a significant economic impact on asubstantial number of small entities asthey are defined in the RegulatoryFlexibility Act, 5 U.S.C. 601-612. Thereason for this certification is that theseamendments would not directly affectany small entities. Only VAbeneficiaries could be directly affected.Therefore, pursuant to 5 U.S.C. 605(b),these amendments are exempt from theinitial and final regulatory flexibilityanalysis requirements of sections 603and 604.

In accordance with Executive Order12291, Federal Regulation, the Secretary

has determined that these regulatoryamendments are non-major for thefollowing reasons:(1) They will not have an annual

effect on the economy of $100 million ormore.

(2) They will not cause a majorincrease in costs or prices.

(3) They will not have significantadverse effects on competition,employment, investment, productivity,innovation, or on the ability of UnitedStates-based enterprises to competewith foreign-based enterprises indomestic or export markets.

The Catalog of Federal DomesticAssistance program numbers are 64.100,64.101, 64.104, 64.105, 64.106, 64.109, and64.110.List of Subjects in 38 CFR Part 3

Administrative practice andprocedure, Claims, Handicapped, Healthcare, Pensions, Veterans.

Approved: March 20, 1990.Edward J. Derwinski,Secretary of Veterans Affairs.

38 CFR part 3, Adjudication, isamended as set forth below:

PART 3-[AMENDED]

1. Section 3.103 is revised to read asfollows:§ 3.103 Procedural due process andappellate rights.

(a) Statement of policy. Everyclaimant has the right to written noticeof the decision made on his or her claim,the right to a hearing, and the right ofrepresentation. Proceedings before VAare ex parte in nature, and it is theobligation of VA to assist a claimant indeveloping the facts pertinent to theclaim and to render a decision whichgrants every benefit that can besupported in law while protecting theinterests of the Government. Theprovisions of this section apply to allclaims for benefits and relief, anddecisions thereon, within the purview ofthis part 3.

{b) The right to notice-(1 General.Claimants are entitled to notice of anydecision made by VA affecting thepayment of benefits or the granting ofrelief. Such notice shall clearly set forththe decision made, any applicableeffective date, the reason(s) for thedecision, the right to a hearing on anyissue involved in the claim, the right ofrepresentation and the right, as well asthe necessary procedures and timelimits, to initiate an appeal of thedecision.

(2) Pretermination/reduction notice.Except as otherwise provided inparagraph (a)(3) of this section, no

award of compensation, pension ordependency and indemnitycompensation shall be terminated,reduced or otherwise adversely affectedunless the beneficiary has been notifiedof such adverse action and has beenprovided a period of 60 days in which tosubmit evidence for the purpose ofshowing that the .adverse action shouldnot be taken.

(3) Exceptions. Pretermination/reduction notice is not required butnotice contemporaneous with theadverse action is required when:

(iJ An adverse action is based solelyon written, factual, unambiguousinformation as to income, net worth,dependency or marital status providedby the beneficiary or his/her fiduciarywith knowledge or notice that suchinformation would be used to calculatebenefits, and the legal standards appliedto this information are numerical innature,

(ii) An adverse action is based uponthe beneficiary's or fiduciary's failure toreturn a required eligibility verificationreport, or

(iii) Evidence reasonably indicatesthat a beneficiary is deceased. However,in the event that VA has received adeath certificate, a terminal hospitalreport verifying the death of abeneficiary or a claim for VA burialbenefits, no notice of termination(contemporaneous or otherwise) will berequired.

(c) The right to a hearing. (1) Uponrequest a claimant is entitled to ahearing at any time on any issueinvolved in a claim within the purviewof part 3 of this chapter. VA will providethe place of hearing in the VA officehaving original jurisdiction over theclaim or at the VA office nearest theclaimant's home having adjudicativefunctions, and will provide VApersonnel who have originaldeterminative authority of such issues toconduct the hearing and be responsiblefor establishment and preservation ofthe hearing record. Hearings inconnection with proposed adverseactions and appeals shall be held beforeVA personnel having originaldeterminative authority who did notparticipate in the proposed action or thedecision being appealed. All expensesincurred by the claimant in connectionwith the hearing are the responsibility ofthe claimant.

(2) The claimant is entitled to producewitnesses and all testimony will beunder oath or affirmation. The purposeof a hearing is to permit the claimant tointroduce into the record in person anyavailable evidence which the claimantmay consider material and any

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arguments and contentions with respectto the facts and applicable law whichthe claimant may consider pertinent. 1tis the responsibility of the VA personnelconducting the hearings to explain fullythe issues and suggest the submission ofevidence which the claimant may haveoverlooked and which would be ofadvantage to the claimant's position. Toassure clarity and completeness of thehearing record, questions which aredirected to the claimant and towitnesses are to be framed to explorefully the basis for claimed entitlementrather than with an intent to refuteevidence or to discredit testimony. Incases in wfich the nature, origin, ordegree of disability is in issue, theclaimant may request visualexamination by a physician designatedby VA and the physician's observationswill be read into the record.

(d) Submission of evidence. Anyevidence whether documentary,testimonial, or in other form, offered bythe claimant in support of a claim andany issue a claimant may Taise 'and anycontentionor argument a claimant mayoffer with respect thereto are to beincluded in the records.

(e) The i'ght -to represention.Subject to the provisions of 11 14;626through 14C637 of this title, claimants areentitled to representation of their choiceat every stage in the prosecution of aclaim.

(f) Notiftcatfon of decisions. Theclaimant or beneficiary will be notifiedin writing of decisions affecting thepayment of beiefits or granting relief.Notice will include the reason for thedecision and the date it will be effectiveas well as lhe right to a hearing'subjectto paragraph (c) of this section. Thenotification will also advise the 'laimantor beneficiary of the zight to initiate anappeal by filing a Notice ofDisagreement which will entitle theindividual to a Statement of the Case forassistance in perecting an appeal.Further, the notice wili advise him or herof the periods in which an appeal mustbe initiated and perfected. (See part 19.subpart B, of this chapter, on appeals.)

2. Section 3.1105 is amended byrevising the last sentence in paragraph(d), paragraphs jej and 1). and addingparagraphs W and t{h to read asfollows:

§ 3.105 'ReVislon of decision.

(d)* . Unless o'therwise provided"in pagrap N of this section ifadditioa vidence 'is not r6ceiv'edwithin that period,' a] ratingactionwill be taken 'ai'd Th* award* will be'reduced or discontinued, ifin order,effective the ]ast day of the montl in

which a 60-day period from the date ofnotice to the beneficiary of the finalrating action expires ...(Authority: 31 U.S.C. 3012(b)(6))

(e) Reduction in evaluation-compensation. Where the reduction inevaluation of a service-connecteddisability or employability status isconsidered warranted and the lowerevaluation would xesult in a reduction ordiscontinuance of compensationpayments currently being made, a ratingproposing the reduction -ordiscontinuance will be prepared settingforth all material facts and reasons. Thebeneficiary will be notified at his or herlatest address of record of thecontemplated action and furnisheddetailed reasons therefor, and will begiven 60 days for the presentation ofadditional evidence to 'show thatcompensation payments should becontinued at their present level. Unlessotherwise provided in paragraph (h) ofthis section, if additional evidence is notreceived within that period, final ratingaction will be taken and the award willbe reduced or discontinued effective thelast day of the month in which a '60-dayperiod from the date of notice to thebeneficiary of the final rating actionexpires.

(Authority: 38 U.S.C. 3012(b)(6))

(f) Reduction in evaluation-pension.Where a change in disability oremployability warrants a reduction ordiscontinuance ,of pension paymentscurrently being made, a rating proposingthe reduction or discontinuance will 'beprepared seting forth all material factsand reasons. The beneficiary will benotified at 'his or her latest address ofrecord of the contemplated action andfurnished detailed reasons therefor, andwill be given So days Ifor thepresentation onf additional evidence toshow that pension benefits should becontinued at their present level. Unlessotherwise provided in paragraph 1h) ofthis section, if additional evidence is notreceived within that period, final ratingaction -will be taken and ithe award willbe reduced or discontinued effective thelast day of the month in which the finalrating action is approved.(Authority. 38 -US.C. 3012(b)(5))

(g) Other reductians/dscontinvances.Except as otherwise specified at§ 3.103(bli3J of this par, ,where areduction or discontinuance ofbenefitsis warranted b y reason of informationreceived concerning income, net worth,dependency, or marital or other status, aproposal -for the reduction ordiscontinuance will be prepared settingforth all material facts and reasons. The

beneficiary will be notified at his or herlatest address of record of thecontemplated action and furnisheddetailed reasons therefor, and ,will begiven 00 days for the presentation ofadditional 'evidence to -how that thebenefits s huld be continued at theirpresent level Unless otherwise providedin paragraph [h) of this section, ifadditional evidence is not receivedwithin that period, 'final adverse actionwill be taken and the award will bereduced or discontinued effective asspecified under the provisions of§ § 3.500 through 3.503 of this part.

(Authority: 38 US.C. 3012)

(h) Predetermination hearings. I1) Inthe advance written notice concerningproposed actions under paragraphs 1d)through 'g] of'this section, thebeneficiary will be informed that he orshe will have an opportunity for apredetermination hearing, provided thata request for such a hearing is receivedby VA -ithin S0 days from 'the date ofthe notice. If a timely request isreceived, V.A Wil notify the beneficiaryin writing of the time and place of thehearing at least 10 days in advance ofthe scheduled hearing date. The I0Ddayadvance notice maybe waived byagreement between VA and thebeneficiary or representative. Thehearing will be conducted by VApersonnel who did not participate in theproposed adverse action and who willbear the decision-making responsibility.If a predetermination hearing is timelyrequested, benefit payments shall becontinued at the previously establishedlevel pending a final determinationconcerning the proposed action.

(2) Following the predeterminationprocedures specified in this paragraphand paragraph (dJ, fej, if) or {g) of thissection, whichever is applicable, finalaction will be taken. If apredetermination hearing was notrequested or if the beneficiary failedwithout good cause to report for ascheduled predetermination hearing thefinal -action will be based solely uponthe evidence of record. Examples ofgood cause include, but are not limitedto, the illness or hospitalization of theclaimantu or benefiiax3, death of animmediate family member, etc. If apredetermination hearing wasconducted, -the finalactionill be baedon evidence antitestimonyadducedatthe'hearing as well as -the other evidence of.record including any additional evidence,obtained following the hearing purstant.to necessary development. Whether ornot a predetermination hearing wasconducted, a written notice of the final

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action shall be issued to the beneficiary,setting forth the reasons therefor and theevidence upon which it is based. Wherea reduction or discontinuance ofbenefits is found warranted followingconsideration of any additionalevidence submitted, the effective date ofsuch reduction or discontinuance shallbe as follows:

(i) Where reduction or discontinuancewas proposed under the provisions ofparagraph (d) or (e) of this section, theeffective date of final action shall be thelast day of the month in which a 60-dayperiod from the date of notice to thebeneficiary of the final action expires.

(i) Where reduction ordiscontinuance was proposed under theprovisions of paragraph (f) of thissection, the effective date of final actionshall be the last day of the month inwhich such action is approved.

(iii) Where reduction ordiscontinuance was proposed under theprovisions of paragraph (g) of thissection, the effective date of final actionshall be as specified under theprovisions of § § 3.500 through 3.503 ofthis part.(Authority: 38 U.S.C. 3012)r

3. In § 3.109, paragraph (b) is revisedand an authority citation is added, toread as follows;

§ 3.109 Time limit.* * * * *

(b) Extension of time limit. Timelimits within which claimants orbeneficiaries are required to act toperfect a claim or challenge an adverseVA decision may be extended for goodcause shown. Where an extension isrequested after expiration of a timelimit, the action required of the claimantor beneficiary must be taken concurrentwith or prior to the filing of a request forextension of the time limit, and goodcause must be shown as to why therequired action could not have beentaken during the original time periodand could not have been taken soonerthan it was. Denials of time limitextensions are separately'appealableissues.(Authority: 38 U.S.C. 210(c))

4. Section 3.110 is revised and anauthority citation is added, to read asfollows:

§ 3.110 Computation of time limit(a) In computing the time limit for any

action required of a claimant orbeneficiary, including the filing of claimsor evidence requested by VA, the firstday of the specified period will beexcluded and the last day included. Thisrule is applicable in cases in which thetime limit expires on a workday..Where

the time limit would expire on aSaturday, Sunday, or holiday, the nextsucceeding workday will be included inthe computation.

(b) "The first day of the specifiedperiod" referred to in paragraph (a) ofthis section shall be the date of mailingof notification to the claimant orbeneficiary of the action required andthe time limit therefor. The date of theletter of notification shall be consideredthe date of mailing for purposes ofcomputing time limits. As to appeals,see § 19.129 of this chapter.

(Authority: 38 U.S.C. 210(c))

5. Section 3.114(a) is revised to read asfollows:

§ 3.114 Change of law or VA Issue.(a) Effective dote of award. Where

pension, compensation, or dependencyand indemnity compensation is awardedor increased pursuant to a liberalizinglaw, or a liberalizing VA issue approvedby the Secretary or by the Secretary'sdirection, the effective date of suchaward or increase shall be fixed inaccordance with the facts found, butshall not be earlier than the effectivedate of the act or administrative issue.In order to b6 eligible for a retroactivepayment under the provisions of thisparagraph the evidence must show thatthe claimant met all eligibility criteriafor the liberalized benefit on theeffective date of the liberalizing law orVA issue and that such eligibilityexisted continuously from that date tothe date of claim or administrativedetermination of entitlement. Theprovisions of this paragraph areapplicable to original and reopenedclaims as well as claims for increase.

(1) If a claim is reviewed on theinitiative of VA within 1 year from theeffective date of the law or VA issue, orat the request of a claimant receivedwithin 1 year from that date, benefitsmay be authorized from the effectivedate of the law or VA issue.

(2) If a claim is reviewed on theinitiative of VA more than 1 year afterthe effective date of the law or VAissue, benefits may be authorized for aperiod of 1 year prior to the date ofadministrative determination ofentitlement.

(3) If a claim is reviewed at therequest of the claimant more than 1 yearafter the effective date of the law or VAissue, benefits may be authorized for aperiod of 1 year prior.to the date ofreceipt of such request.(Authority: 38 U.S.C. 3010(g))

IFR Doc. 90-8279 Filed 4-10-90: 8:45 amjBILUNG CODE $320-01-M

38 CFR Parts 3, 21

RIN 2900-AE05

Veterans Education; Disabling Effectsof Chronic Alcoholism

AGENCY: Department of VeteransAffairs.

ACTION: Final regulations.

SUMMARY: The Veterans Benefits andPrograms Improvement Act of 1988provides among other things that for thepurposes of any provision relating to theextension of a delimiting period underany education benefit or rehabilitationprogram administered by theDepartment of Veterans Affairs, thedisabling effects of chronic alcoholismshall not be considered to be the resultof willful misconduct. These finalregulations will inform the public of theway in which the Department ofVeterans Affairs (VA) will implementthis provision of law with respect to thePost-Korean Conflict GI Bill. The changeto 38 CFR 3.301(b) is made to conform toa provision of the Veterans' andSurvivors' Pension Improvement Act of1978.

EFFECTIVE DATE: The effective date ofthe amendment to § 3.301(b), is April 11,1990. The effective date of all otheramended regulations, like the provisionof law they implement,is November 18,1988.

FOR FURTHER INFORMATION CONTACT:June C. Schaeffer (225), AssistantDirector for Education Policy andProgram Administration, VocationalRehabilitation and Education Service,Veterans Benefits Administration,Department of Veterans Affairs, 810Vermont Avenue NW., Washington, DC20420, (202) 233-2092.

SUPPLEMENTARY INFORMATION: Onpages 31950 through 31952 of the FederalRegister of August 3, 1989, there waspublished interim regulations with arequest for public comment which arepart of part 3, 38 CFR and part 21, 38CFR. Section 3.301(b) is corrected toconform to a provision of Public Law 95-588 which amended 38 U.S.C. 521 todelete a reference to "vicious habits."The remainder of these regulationsimplemented section 109 of the VeteransBenefits and Programs Improvement Actof 1988 (Pub. L. 100-689). That sectionstates that for the purposes of extendingthe eligibility period for educationalassistance under any of the educationallaws or vocational rehabilitation lawsadministered by the Department ofVeterans Affairs, the disabling effects ofchronic alcoholism will not be

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accountholder's name and address wereverified at the time the account wasopened, or at any subsequent time, andthat information was recorded on thesignature card or other file or record; orby examination of a document thatcontains the name and address of thepurchaser and normally is acceptablewithin the banking community as a.means of identification when cashingchecks for nondepositors. If the depositaccountholder's identity has not beenverified previously, or if the financialinstitution is unable to determinewhether the individual's identificationhad been verified previously, then thefinancial institution shall verify thedeposit accountholder's identity'byexamination of a document thatcontains the name and address of thepurchaser and normally is acceptablewithin the banking community as ameans of identification when cashingchecks for nondepositors, and shallrecord the specific identifyinginformation on the log (e.g., State ofissuance and number of driver'slicense). The method of verification usedshall be noted on the log.

(2) If the purchaser does not have adeposit account with the financialinstitution:

(i)(A) The name and address of thepurchaser,

(B) The social security number of thepurchaser, or if the purchaser is an alienand does not have a social securitynumber, then the alien identificationnumber;

(C) The date of birth of the purchaser(D) If the individual is purchasing the

instrument(s) on behalf of anotherperpon. the name of the person onwhose behalf the instrument is beingpurchased and the account number ofthat third party; if there is no accountnumber, then the name, address andsocial security number, as well as thetaxpayer identification number, or alienidentification number, of such person;

(E) The date of purchase;(F) The branch where the-purchase

occurred;(G) The type(s) of instrument(s)

purchased;(H) The serial number(s) of each of

the instrument(s) purchased;(I) The dollar amount(s) of each of the

instrument(s) purchased;(J) The payee(s) on each of the

instrument(s) purchased (for cashier'schecks and bank checks and drafts); and

(K) The amount of the purchase incurrency.

(ii) In addition, the financialinstitution shall verify the purchaser'sname and address by examination of adocument that contains the name andaddress of the purchaser and normally

is acceptable within the bankingcommunity as a means of identificationwhen cashing checks for nondepositors,and shall record the specific identifyinginformation on the log (e.g., State ofissuance and number of driver'slicense).

'(b) Contemporaneous purchases of thesame or different types of instrumentstotaling $3,000 or more shall be treatedas one purchase. Multiple purchasesduring one business day totaling $3,000or more shall be treated as one purchaseif an individual employee, director,officer, or partner of the financialinstitution has knowledge that thesepurchases have occurred. Multiple salesmust be noted as such on the log.

(c) The financial institution maymaintain a single centralizedchronological log or it may maintainseparate chronological logs by branch.A financial institution also may keep aseparate chronological log for each typeof instrument sold. If the financialinstitution maintains a separatechronological log or logs for eachbranch, all of the branch logs for acalendar month must be sent to acentralized location by the fifteenth(15th) day after the end of the calendarmonth for which the log was compiled.Financial institutions with branches inmore than one State may centralize thelogs by State. A list of the centralizedlocations and branches shall beavailable to the Secretary upon request.

(d) Chronological logs shall beretained by the financial institution for aperiod of five years.

(e) The chronological logs shall beavailable to the Secretary upon requestat any time.

Dated: April 24, 1990.Peter K. Nunez,Assistant Secretary (Enforcement).[FR Doc. 90-11229 Filed 5-14-90; 8:45 am]BILLING CODE 4810-2S-M

DEPARTMENT OF VETERANS

AFFAIRS

38 CFR Parts 3 and 19

RIN 2900-AD14

Appeals Regulations and Rules ofPractice;, Request for Change InRepresentation, Request for PersonalHearing, or Submission of AdditionalEvidence Following Certification of anAppeal to the Board of VeteransAppeals

AGENCY: Department of VeteransAffairs.ACTION: Final rules.

SUMMARY: The Department of VeteransAffairs (VA) is issuing final regulatoryamendments concerning theconsideration of additional evidence,hearing requests, and requests forchanges in representation following thecertification and ttansferof an appeal tothe Board of Veterans Appeals (BVA).These amendments set limits on thetime in which these items may besubmitted and are necessary to ensurethe timely processing of appeals.

EFFECTIVE DATE: These rules areeffective June 14, 1990.FOR FURTHER INFORMATION CONTACT:Mr. Jan Donsbach, Special LegalAssistant to the Chairman (01C), Boardof Veterans Appeals, Department ofVeterans Affairs, 810 Vermont AvenueNW., Washington, DC 20420, (202) 233-2978.SUPPLEMENTARY INFORMATION: On July6, 1989, VA published in the FederalRegister (54 FR 28445) a noticeproposing amendment of 38 CFR 19.174to add a cutoff date following which anappellant cannot submit a request for achange in representation and anappellant and/or representative cannotsubmit additional evidence or a requestfor a personal hearing in a case whichhas been transferred to the BVA forappellate consideration. Provision wasmade for accepting evidence andrequests at a later date when good causeis shown. Related revisions to 38 CFR3.103(c), 3.156(a), and 3.160(e) wereproposed to insure that effective datesfor subsequent awards, if any, arepreserved when evidence is submittedtoo late for the BVA to consider in anappeal.

VA received 12 comments on theproposed rules-two from VAemployees, two from a serviceorganization and allied legal servicesorganizations, seven from privateattorneys-at-law, and one from a CountyExecutive.

Several commenters objected to theobjective of these amendments-settinga cutoff date for submitting additionalevidence and requests for a change inrepresentation and hearings followingtransfer of appeals to BVA. Two voicedgeneral opposition, but gave no reasonsfor their objections. Some commenterssuggested that the need for therestrictions in these amendments hadnot been adequately addressed in viewof the perceived burdens which theyimpose. Others expressed generalconcern about an abridgment of rights.One commenter asserted that theproposed regulation gave the Chairman"extraordinary power to refuse to acceptany new evidence, refuse to allow a

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change in the power of attorney, andrefuse to allow a personal appearancehearing." One commenter asserted thatextensive development was sometimesnecessary in cases where appellants hadnot been represented at the local level,particularly in cases involving mentallyill appellants; cited possible problems intimely coordination of the efforts oflocal and appellate representativeswhen an appellant had been representedin the field; alleged that appellants werenot notified when appeals weretransferred to the Board; voiced concernabout the inability to build a fullappellate record for the consideration ofthe United States Court of VeteransAppeals expressed concern aboutpossible delays occasioned by the timenecessary to rule on "good cause"motions and by the necessity to remandcases for additional development; andalleged that the proposed amendmentswould deprive appellants of rightsaccorded under chapter 71, title 38,United States Code and 38 CFR 3.103and 19.150. One commenter felt thatmany appellants would not know of therestrictions. Another commenterexpressed concern about appellantswho may only become aware of theirrights at a very late date and inquired asto the effect of the death of arepresentative following the cutoff date.Two other commenters expressedconcern about the possible effect of thecutoff date with respect to mentally illappellants. One commenter alleged thatthe changes were an attempt by theBVA to eliminate de novo review; thatthe period proposed did not allowrepresentatives an adequate amount oftime to review the record and consultwith their clients, particularly in caseswhere transfer of the appellate record tothe BVA might have been delayed; thatthe proposed rules were unclear aboutthe submission of new evidence in caseswhere a timely request for'a hearing hadbeen entered; that the necessity toprotect rights by filing a timely hearingrequest would result in the unnecessaryscheduling of hearings; and that therewould be unnecessary delaysoccasioned by the processing ofrequests to submit evidence, changerepresentation, and conduct hearings.This commenter concluded that theseamendments would serve to deny the"effective assistance of counsel."

The supplementary informationprovided with the notice of proposedrulemaking notes the following withrespect to the need for these changes:

Under existing procedures, an appellantmay continue to submit additional evidenceand may submit requests for a personalhearing or for a change in his or herrepresentative throughout the appellate

process. As a result, the appellate record canbe a constant state of change while Membersof the Board of Veterans Appeals aredeliberating on the appeal. Confusion cansometimes result as to the exact nature of therecord reviewed by the Board. Particularly*with the advent of judicial review (see Pub. L.100-687), it is essential that a point bereached at which the appellate record isfixed. In addition, considerable delay canresult when it is necessary to remove anappellate record from the hands of those whoare engaged in an orderly appellate review inorder to respond to various tardy requestsand submissions. The proposed changeswould assist in orderly and prompt appealprocessing and would help to clarify thenature and extent of evidence considered bythe Board in reaching a decision in any givenappeal.

The factors addressed in theseremarks are not inconsequential. TheBVA is well aware of the hardshipimposed on appellants when action bythe Board is delayed and is deeplyconcerned about the length of timewhich it takes to process an appeal afterthe case is transferred to the BVA(averaging approximately 165 daysduring the third quarter of fiscal year1989). Tardy action by appellants andtheir representatives contributes to thisextended processing time. It producesdelays not only in their own individualcases, but delays in processing theappeals of the majority of appellantswho are diligent in the prosecution oftheir appeals because of the time ofMembers of the Board and of the BVA'sadministrative staff which is wasted.Unfortunately, some appellants and, to alesser extent, representatives indulge innot just one late request, but many.When late requests are received, thetransfer of a case to Board Sections fordeliberation and preparation of adecision must be delayed or appealsmust be removed from the hands ofmembers of the BVA professional staffwho are assisting in the preparation ofwritten decisions or from the hands ofMembers of the Board who aredeliberating on the case in order torespond. In some cases, needless hoursmust be spent in revision of decisionswhich have already been prepared dueto the late submission of evidence. Thedeliberation of Board Members mustoften begin anew because familiaritywith the record has been lost by thetime the record has been returned.Requests and added evidence may bereceived in the field or at the BVA solate that, by the time the request oradditional evidence can be associatedwith the record, a BVA decision hasalready been promulgated. It may thenbe necessary to vacate the decision andbegin again. (Seventy-three decisionswere vacated during fiscal year 1989,

primarily due to such problems.) At theleast, it may be necessary to issue asupplemental decision. In short, asidefrom the self-evident administrativeefficiency which these changes bringabout, they serve to assist the Board inproviding justice to appellants with thedeliberate speed to which they areentitled.

One commenter suggested that theseamendments were not necessarybecause Board Sections do not act onappeals until late in the period of timeduring which cases are at the BVA. Thisbegs the question. Often the reason thatBoard Sections cannot act until a casehas been at the BVA for a considerableperiod of time is because of delaysoccasioned in getting the case to theSection in the first place, or removing itfrom the Section during earlierdeliberation, because of long delayedaction by an appellant or representative.

The BVA is very much aware of theimportance of safeguarding the rights ofappellants. Protection of appellate dueprocess is basic and the BVA attemptsto aggressively guard individual rights atevery stage of the appellate process. Onthe other hand, it is self evident that thetime must eventually come in every casewhen an appellant must make a finaldecision with respect to representationand when development of the recordand appellate presentations cease sothat an appellate decision may be made.Nevertheless, in view of the concernsexpressed, the BVA agrees to extend thetime period established by theserevisions from 60 days to 90 days. Thisshould provide more than adequate timefor appellants to act after their recordshave been transferred to BVA.

VA does not agree that theseamendments unlawfully, or improperly,impair rights provided in chapter 71, title38, United States Code (e.g., in 38 U.S.C.4002(b), 4004(a), 4005(a)) or otherwiseprovided by law.

Chapter 71 provides that the BVA willmaintain a hearing docket and provideformal, recorded hearing (38 U.S.C.4002(b)); that it will afford anopportunity for a hearing and will baseits decisions on the entire rhcord and itsconsideration of all of the evidence andmaterial of record (4004(a)); and that itwill accord appellants hearing and,representation rights pursuant to theprovisions of the chapter andregulations of the Secretary (38 U.S.C.4005(a)). The BVA should, and must,provide hearings on appeal. This does'not mean, however, that thatopportunity must be extendedindefinitely. It is not unreasonable toexpect appellants to inform the BVAwithin a reasonable period'of time

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whether a hearing is desired. The BVAalso should, and must, base its decisionon all of the relevant evidence containedin the record. That does not! however.translate to a requirement that therecord must remain open indefinitely. Ifthat were the case, the BVA wouldnever have a final record upon which to

' base a decision. Finally, the BVAshould, and must, afford appellants theright to be represented in proceedingsbefore it. That does not mean that it has.no right to expect appellants to make achoice concerning representation withina reasonable period of time so that thedisposition of the appeal may proceed.

38 CFR 3.103 and 19.150, of course, areamong the "regulations of theSecretary," They are implementationsand interpretations of the' statutoryauthority referred to above. Theseamendments revise 3.103 to callattention to the changes theseamendments bring about. The BVA hasnot amended 38 CFR 19.150 becausethese amendments do not conflict withthat regulation, one of the BVA's currentRules of Practice. 38 CFR 19.150specifies that an appellant will beaccorded full right to representation inall stages of an appeal. Theseamendments do not curtail the right torepresentation, they merely provide thatthe appellant must make a selection ofwho is to represent him or her within areasonable period of time unless there isgood cause for a late selection or changein representation.

With respect to opportunities to buildthe record, it should be borne in mindthat the BVA is an appellate body. It isnot an agency of original jurisdiction.While considerable latitude is allowedin order to extend appellants everyreasonable consideration, extensivedelays to build records while theappellate record is at the BVA are notappropriate. This does not mean,however, that the BVA is unmindful ofthe necessity of a full record forappellate consideration or that specialconsiderations concerning recorddevelopment may not come into playwhen an appellant changesrepresentatives, or acquires arepresentative for the first time, at theappellate level. (Incidentally, there • -should be little difference between thenature of the record developed for theBVA or for the COVA. A completerecord is just as necessary for adequate:BVA review as for review by a highertribunal.)

When appellate records are deemedto be deficient for whatever cause,whether for the BVA or for higher courtreview,'and timely development effortsby the appellant and his or her

representative have not been successful,the BVA has always been and will-continue to be willing to considerreasonable requests. for assistance. TheBoard will continue to entertainreasonable requests to remand casesback to the field, where development isalmost always best carried out, forfurther development with the assistanceof the agency of original jurisdiction.Field facilities have resources forassisting in development which the EVAdoes not have. The appellant is inreasonable proximity to field locationswhere he or she may be readilycontacted for additional information andwhere any necessary field investigationsand medical examinations can beperformed. Except for needed servicerecords which have not already beenobtained, documentary evidence andwitnesses are almost always located inthe field. (As in the past, the BVA ismore than willing to consider requeststhat it directly provide assistance inobtaining evidence such as servicemedical or administrative records.) Ifadditional evidence is received at theappellate level, fairness to the appellant,and any other claimants/appellantsaffected, requires that that evidence beremanded to the agency of originaljurisdiction for its consideration, furtherdevelopment, and, if necessary,preparation of a SupplementalStatement of the Case, except wherethat right has been specifically waived.The BVA is particularly sympathetic toboth field and central developmentrequests when an appellant isunrepresented or is under a mental orother handicap which prevents him orher from developing the recordadequately on his or her own in a timelymanner. Finally, appellants do notbenefit by having their VA records tiedup in Washington for extended periodsof time, often delaying action on otherVA benefits unrelated to their appeals.while the appellate record is developed.

The depiction of these proposedamendments as giving the Chairmanextraordinary power to refuse to acceptany new evidence, refuse to allow achange in the "power of attorney," andto refuse personal hearings is highlyinaccurate. These proposedamendments give the Chairman noauthority whatever with regard to thesematters until late in the appellateprocess. Even at that point, his or herauthority is narrowly limited to adetermination of whether good causehas been shown for tardy action by anappellant or representative.

There should be no reason for anappellant to first become aware of his orher rights at a late appellate stage. VA

takes pains to advise claimants of theirrights at every stage. of the claimsprocess. For example, the form (VAForm '1-4107) sent to every claimantwhen a claim is denied includesadvisement of the right to appeal, theright' to a hearing, and the right torepresentation. Rights are againexplained in detail on the form used byappellants to appeal to the BVA (VAForm 1-9). (This advice is beingexpanded even further in revisions tothis form which are now in progress.)

The death of an individualrepresentative would, obviously, be.good cause for a late change inrepresentation. The provisions of 38 CFR19.174(c) have been amended to removewhatever doubt there may have beenthat this is good cause for a change inrepresentation.

VA agrees that mentally ill appellants,and other appellants suffering from ahandicap which may impede theexercise of their rights, deserve specialconsideration. That is the reason whythe revision to 38 CFR 19.174(c) waswritten to include "illness of theappellant or the representative whichprecluded action during the 60-dayperiod" (now 90-day period) among theexamples of good cause for allowing thetardy submission of evidence andrequests for personal hearings andchanges in representation.

These revisions have nothing to dowith the standard of de novo review.That standard, which remainsunchanged, simply means that the BVAwill continue to review all of theevidence which is of record withoutregard to the fact that a claim has beendenied in the field, provided that theappeal of that denial was timely andsubject to the statutory requirement thatthere be allegations of specific error offact or law in the determination beingappealed.

As to the argument that theseamendments do not allowrepresentatives an adequate amount oftime to review the record and consultwith their clients, particularly in caseswhere transfer of the appellate record tothe BVA might have been delayed. VAnotes that in the great majority of casesappellants retain the representative atthe appellate level which they had in thefield, Even where this is not the caseand there is a change, or initialselection, of representation at theappellate level, the approximately three-month period allowed should be morethan adequate for review of the record.and consultation with the client to theextent that an informed determinationas to whether representation should beundertaken can be made by the,

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appellant and the representative. Theserevisions in no way impede review ofthe record by representatives or theirability to consult fully with their clientsafter representation has beenestablished. In addition to the extensionof the cut-off date to 90 days, revisionshave been made to 38 CFR 19.174(c) tospecifically include delay in the transferof the appellate record to the BVA asone of the examples of good cause forlate action by an appellant orrepresentatives.

In accordance with long-standing VAprocedures and as clearly required by 38CFR 19.174(a), appellants and theirrepresentatives are notified in writingwhen an appeal is certified and theappellate record is transferred to BVA.VA agrees that notice should also begiven concerning the limitationsimposed by these revisions at that time.Appropriate changes have been made to38 CFR 19.174(a). (The word "claimant"has also been corrected to read"appellant" in that paragraph.)

The revisions to 38 CFR 19.174(b)already very clearly provide thatevidence which is submitted at ahearing which was requested on timewill be considered to have beenreceived on time.

VA does not agree that an informeddecision concerning whether or not ahearing is desirable cannot be made bythe late date in the appellate processprovided by these revisions in almost allcases or that the few cases where "showcause" determinations are necessarywill produce delays which areunnecessary. The BVA considersappeals in claims which have alreadybeen in progress for months, andsometimes for years, at the field level.The appellant, and generally therepresentative, have had a great deal oftime to consider the approach to thecase for a long time before the appealever reaches BVA. Appellants areinformed of the availability of personalhearings very early in this process. TheVA form which they are sent when theyare informed of the initial action takenby the agency of original jurisdiction(VA Form 1-4107) prominently displaysthis information. Appellants arespecifically asked whether they wish apersonal hearing (and, if so, where) onthe form which constitutes theirsubstantive appeal to the BVA [VAForm 1-9) which they submit to theagency of original jurisdiction prior tothe transfer of the record to the BVA.Whether a hearing is desired is normallya preliminary question which can bedecided early in the appellate process,In BVA's experience, factors rarely ariselate in the appellate process which

substantially influence this choice andthe delay in requesting hearings isusually attributable to simple neglect.These regulations, as revised, permit theappellant and his or her representative a.period of approximately three additionalmonths within which to make thisdecision after notification of transfer ofthe appellate record to the BVA. Further,in those unusual cases where specialcircumstances require a late request,these amendments permit the filing ofthe late request when good cause isshown.

It is the late submission of hearingrequests, not the submission of good-cause motions, which presents thegreater risk of unnecessary delays.Except in unusual circumstances, suchas severe hardship on the part of theappellant, hearings are provided at theBVA on a "first come, first served"basis. Due to the case load at the BVA,hearings must usually be scheduledweeks or months in advance. Laterequests produce even later hearingdates. Further, requests which aresubmitted late may well not beprocessed and associated with theappellate record (particularly whenwrongly sent to the field office, ratherthan to BVA, as is often the case) untilafter the BVA decision has already beenentered in the case even though theymay have been received somewherewithin VA shortly before the decisionwas promulgated. In such cases, thedecision must then be vacatbd and theappellate process must essentially begin

.again.One commenter suggested that the

amendment to 38 CFR 3.103(c) wasincomplete, inasmuch as it did notinclude a reference to a recent revisionto 38 CFR 19.159(b) pertaining to therescheduling of hearings. (See 54 FR11375.) Suggested language including across-reference to 38 CFR 19.159(b) wasprovided. This suggested language hasnot been adopted. The statement in 38CFR 3.103(c) that a claimant is entitledto a hearing at any time means that ahearing will be afforded at any stage ofthe adjudication process. It does notconcern hearing scheduling.Accordingly, a cross-reference to 38 CFR19.159(b) is unnecessary.

The same commenter noted that thesecond closing parentheses in the bodyof 38 CFR 3.156(a), as amended,appeared to be misplaced. This was atypographical error and it has beencorrected. This commenter suggestedabbreviation of the first sentence ofparagraph (b) and the last sentence ofparagraph (c)(1) of 38 CFR 19.174. Thealternate language suggested forparagraph (b) omitted some essential

concepts and has only been adopted inpart. The suggested abbreviation forparagraph (c)(1) was inadequate andhas not been adopted. Correction oferroneous cross-references in 38 CFR3.400(q) and the possible elimination ofRule of Practice nomenclature,suggested by this commenter, arebeyond the scope of these amendments.

One commenter felt that theserevisions require a conforming revisionof 38 CFR 3.400(r). VA agrees. 38 CFR3.400(r) currently provides that theeffective date of an award based on areopened claim will be the "date ofreceipt of claim or date entitlementarose, whichever is later." 38 CFR3.160(e) and 19.174(c)(1), as amended,provide that requests for personalhearings and additional evidence whichare received by the BVA prior to thedate of an appellate decision, but whichare rejected by the BVA because theywere submitted late without good cause,will be referred back to the agency oforiginal jurisdiction which may treat thetestimony presented at a new hearing orother new evidence as the basis of areopened claim. Paragraph 19.174(c)(1)also provides that, if the new evidenceor new hearing then results in anallowance of benefits, the effective datewill be the same as if the BVA hadgranted the appeal.which was pendingat the time that the hearing request oradditional evidence was received. Theseamended provisions may thus be inconflict with the existing provisions of38 CFR 3.400(r) in some cases. 38 CFR3.400(r) has been revised to incorporatethe exception in 38 CFR 19.174(c)(1). (VArecognizes that some conformingrevisions to 38 CFR part 21 will also berequired. These changes will beproposed at a later date.)

The same commenter asserted thatthese amendments, if adopted, willdeprive appellants of the same "due-process" rights which they have at the"office of original jurisdiction" and thatthey would place an additional burdenon such offices. It is true that theseamendments do create some differencesbetween procedures at field offices andbefore the BVA, but there are many suchdifferences-as could be expected. Thefunctions of field offices and of the BVAare not the same. Field offices areagencies of original jurisdiction,whereas the BVA is an appellate body.As previously noted, the time musteventually come in every case when anappellant must make a final decisionwith respect to representation and whendevelopment of the record and appellatepresentations cease so:that an appellatedecision may be made. Some additionalburden is imposed on VA field offices

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by these amendments, but it is notsubstantial. Essentially, it involves onlytheir consideration of additionalevidence and hearing testimonysubmitted too late for the BVA toconsider. They must reconsider theirposition in the light of evidence initiallysubmitted while a case is at the BVAanyway, unless this right is waived bythe appellant. (See current § 19.174.)

One commenter suggested that,instead of requiring that good cause beshown for the late submission ofevidence or requests for changes inrepresentation or hearings, the rule berewritten to provide for a motion for anextension of time to take these steps.This suggestion was not adopted. Therewould be little or no practical differencein the approach suggested. Thiscommenter also suggested that thecutoff date be measured from the datethat the appellate record was receivedby BVA, rather than from the time thatthe appellant is given notice of thetransfer of the appellate record to BVA.This 'suggestion was not adopted either.The method- adopted enables appellantsand their representives to easilydetermine the exact cutoff date,inasmuch as they ar6 always informedof the transfer of the appellate record toBVA. The proposed method does not.This commenter voiced concern aboutperceived problems in associatingrequests with the record, when therequests are submitted soon after noticeof transfer of the record to the BVA hasbeen given, because the request mightbe received at the BVA while the filewas still in transit. In BVA's experience,proper association of these earlyrequests with the appropriate file israrely a problem.

Concerning this commenter'ssuggestion that these amendments willserve to encourage representatives tofile protective requests for hearings andthat this would add to BVA's workloaddue to the scheduling of hearings whichdo not materialize, the BVA does notbelieve that this will be a significantproblem. As noted previously, a greatdeal of time is provided to make thechoice of whether or not to request ahearing and the occurrence of eventsvery late in the appellate process whichmake a hearing desirable for the firsttime is rare. In those unusual cases,these amendments provide a mechanismfor obtaining a hearing. Thus, it willgenerally be unnecessary for appellantsand their representatives to fileprotective hearing requests. Based onpast experience, the BVA has everyreason to believe that the vast majorityof representatives will act responsibly

and will not file frivolous hearingrequests.

This commenter also expressedlengthy views about perceivedlimitations on the ability ofrepresentatives to withdraw from a caseimposed by these revisions. Theserevisions focus on when an appellantmay change representatives, not when arepresentative may withdraw. Thelanguage in 38 CFR 19.174 has beenaltered to make this clearer. In addition,withdrawal of a representative has beenadded to the list of examples of goodcause for a late change inrepresentation. The same commenterraised questions about restrictions onhearings in which the appellant is notpresent. That issue, while related, is notthe subject of this rule. That issue willbe clarified in the future in addressingcomments concerning other proposedrules. (See 54 FR 34334)

The Secretary hereby certifies thatthese regulatory amendments will nothave a significant economic impact on asubstantial number of small entities asthey are defined in the RegulatoryFlexibility Act, 5 U.S.C. 601-612.Pursuant to 5 U.S.C. 605(b), theseregulatory amendments are thereforeexempt from the initial and finalregulatory flexibility analysesrequirements of sections 603 and 604.They will have no significant directimpact on small entities (i.e., smallbusinesses, small private and nonprofitorganizations, and small governmentaljurisdictions) inasmuch as they concernthe appeals of individual appellantsbefore BVA.

VA has also determined that theseregulatory amendments are nonmajor inaccordance with Executive Order 12291.They will not have an adverse economicimpact on or increase costs toconsumers, individual industries,Federal, State, and local governmentagencies, or geographic regions.

There is no Catalog of FederalDomestic Assistance program numberinvolved with these regulatoryamendments.

List of Subjects

38 CFR Part 3

Administrative practice andprocedure, Claims, Disability benefits,Health care. Pensions, Veterans

38 CFR Part 19

Administrative practice andprocedure, Claims, Veterans.

. Approved: April 17, 1990.Edward 1. Derwinski.Secretary of Veterans Affairs.

38 CFR parts 3 and 19 are amended asfollows:

PART 3-[AMENDED]

1. In § 3.103, the first sentence ofparagraph (c) is revised and an authoritycitation is added to read as follows:

§ 3.103 Due process-procedural andappellate rights with regard to disabilityand death benefits and related relief.

(c) Hearings. Upon request, a claimantis entitled to a hearing at any time onany issue involved in a claim within thepurview of this part, subject to thelimitations described in § 19.174 of thischapter with respect to hearings inclaims which have been certified to theBoard of Veterans Appeals for appellatereview. * * *(Authority: 38 U.S.C. 210(c))

2. In § 3.156, paragraph (a) is revisedand an authority citation is added toread as follows:

§ 3.156 New and material evidence.(a) New and material evidence

received prior to the expiration of theappeal period, or prior to the appellatedecision if a timely appeal has beenfiled (including evidence received priorto an appellate decision and referred tothe agency of original jurisdiction by the'Board of Veterans Appeals withoutconsideration in that decision inaccordance with the provisions of§ 19.174(c)(1) of this chapter), will beconsidered as having been filed inconnection with the claim which waspending at the beginning of the appealperiod.(Authority: 38 U.S.C. 210(c))* * * * .*

3. In § 3.160, paragraph (e) is revisedand an authority citation is added toread as follows:

§ 3.160 Status of claims.• * * * *

(e) Reopened claim. Any applicationfor a benefit received after finaldisallowance of an earlier claim, or anyapplication based on additionalevidence or a request for a personalhearing submitted more than 90 daysfollowing notification to the appellant ofthe certification of an appeal andtransfer of applicable records to theBoard of Veterans Appeals which wasnot considered by the Board in itsdecision and was referred to the agencyof original jurisdiction for consideration.

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as provided in § 19.174(c)(1) of thischapter.(Authority: 38 U.S.C. 210(c))

4. In § 3.400, paragraph (r) is revisedand an authority citation is added toread as follows:

§ 3.400 Status of claims

(r) Reopened claims. [§ § 3.109, 3.156,3.157, 3.160(e)) Date of receipt of claimor date entitlement arose, whichever islater, except as provided in § 19.174(c)(1)of this chapter.(Authority: 38 U.S.C. 210(c))* * * • *

PART 19-[AMENDED]Section 19.174 is revised to read as

follows:

§ 19.174 Rula 74. Request for change inrepresentation, request for personalhearing, or submission of additionalevidence following certification of anappeal to the Board of Veterans Appeals.

(a) Notification. When an appeal iscertified to the Board of VeteransAppeals for appellate review and theappellate record is transferred to theBoard, the appellant and his or herrepresentative, if any, will be notified inwriting of the certification and transferand of the time limit for requesting achange in representation, for requestinga personal hearing, and for submittingadditional evidence described in thissection.

(b) Request for a change inrepresentation, request for a personalhearing, or submission of additionalevidence within 90 days followingnotification of certification and transferof records. An appellant and his or herrepresentative, if any, will be granted aperiod of 90 days following the mailingto them of the notice described inparagraph (a), or until the date theappellate decision is promulgated by theBoard of Veterans Appeals, whichevercomes first, during which they maysubmit a request for a personal hearingor additional evidence, and duringwhich the appellant may request achange in representation. Any suchrequest or additional evidence should besubmitted directly to the Board and notto the agency of original jurisdiction.The date of the letter of notification willbe presumed to be the date of mailingfor purposes of determining:whether therequest was timely made or theevidence timely submitted. Anyevidence which is submitted at ahearing on-appeal which was requested,during such period will be considered tohave been received during such period,

even though the hearing may be heldfollowing the expiration of the period.Any pertinent evidence submitted by theappellant or representative Is subject tothe requirements of paragraph (d) of thissection and, if a simultaneouslycontested claim is involved, therequirements of paragraph (e) of thissection.

(c) Subsequent request for a change inrepresentation, request for a personalhearing, or submission of additionalevidence. Following the expiration ofthe period described in paragraph (b) ofthis section, the Board of VeteransAppeals will not accept a request for achange in representation, a request for apersonal hearing, or additional evidenceexcept when the appellant demonstrateson motion that there was good cause forthe delay. Examples of good causeinclude, but are not limited to, illness ofthe appellant or the representativewhich precluded action during theperiod; death of an individualrepresentative; illness or incapacity ofan individual representative whichrenders it impractical for an appellant tocontinue with him or her asrepresentative; withdrawal of anindividual representative; the discoveryof evidence that was not available priorto the expiration of the period; anddelay in transfer of the appellate recordto the Board which precluded timelyaction with respect to these matters.Such motions must be in writing andmust include the name of the veteran;the name of the claimant or appellant ifother than the veteran (e.g., a veteran'ssurvivor or guardian); the applicableDepartment of Veterans Affairs filenumber; and an explanation of why therequest for a change in representation,the request for a personal hearing, or thesubmission of additional evidence couldnot be accomplished in a timely manner.Such motions should be filed at thefollowing address: Office of theChairman, Special Legal Assistant(O1C), Board of Veterans Appeals, 810Vermont Avenue, NW., Washington, DC20420. The ruling on the motion will beby the Chairman. Depending upon theruling on the motion, action will betaken as follows:

(1) Good cause not shown. If goodcause is not shown, the request for achange in representation, the request fora personal hearing, or the additionalevidence submitted will be referred tothe agency of original jurisdiction uponcompletion of the Board's action on thepending appeal without action by theBoard concerning the request oradditional evidence. Anypersonalhearing granted as a result of a requestso referred or any additional evidenceso referred may be treated by that

agency as the basis for a reopened claimif appropriate. If the Board denied abenefit sought in the pending appeal andany evidence so referred which wasreceived prior to the date of the Board'sdecision, or testimony presented at a.hearing resulting from a request for ahearing so referred, together with theevidence already of record, issubsequently found to be the basis of anallowance of that benefit, the effectivedate of the award will be the same as ifthe benefit had been granted by theBoard as a result of the appeal whichwas pending at the time that the hearingrequest or additional evidence wasreceived.

(2) Good cause shown. If good causeis shown, the request for a change inrepresentation or for a personal hearingwill be honored. Any pertinent evidencesubmitted by the appellant orrepresentative will be accepted, subjectto the requirements of paragraph (d) ofthis section and, if a simultaneouslycontested claim is involved; therequirements of paragraph (e) of thissection.

(d) Consideration of additionalevidence by agency of originaljurisdiction. Any pertinent evidencesubmitted by the appellant orrepresentative which is accepted by theBoard under the provisions of thissection, as well 6-s any referred to theBoard by the originating agency underRule 73(b) (§ 19.173(b) of this part), mustbe referred to the agency of originaljurisdiction for review and.preparationof a Supplemental Statement of the Caseunless this procedural right is waived bythe appellant-or unless the Boarddetermines that the benefit, or benefits,to which the evidence relates may beallowed on appeal without such referral.Such waiver must be in writing or, if ahearing 'on appeal is conducted, formallyentered on the record orally at the timeof the hearing.

(e) Simultaneously contested claims.In simultaneously contested claims, ifpertinent evidence is submitted by anyclaimant and is accepted by the Boardunder the provisions of this section, thesubstance of such evidence will bemailed to each of the other claimantswho will then have 60 days from thedate-of mailing of notice of the newevidence within which to comment uponit and/or submit additional evidence inrebuttal. The date of the letter ofnotification of the new evidence will bepresumed to be the date of mailing forpurposes of determining whether suchcommentor evidence. in rebuttal was:.timely submitted. No further period willbe provided for response to suchcomment or rebuttal evidence.

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lAulhoriy. 38 U.S:C. 4004.4005. 4005A)CrosvReferenceu: For further information

,concerning: Hearings, see I 3.103 and Rules57 through 714 1 19.157-19.171); New andMaterial Evidence. see 13.156(a); ReopenedClaim; see J1 3.160(e) and 3.400(r);Computation of Time Limit, see Rule 31(9 19.131); 'Legal Holidays, see Rule'32(I 1a.13).

JFR Doc. 90-11128 Filed 5-14-90 845 am]BIUflNG CODE fl201-U

38 CFR Part 17AIN 2900-AD41

Expanded Eligibility for 30-40 PercentService-Connected Veterans

AGENCY. Department of VeteransAffairs.ACTION: Final 'regulations.

sUMMARY The Department of VeteransAffairs (VA) Is amending its medicalregulations ,(38 CFR part '17) to re-definethe eligibility requirements under whichoutpatientlambulatory health care isprovided. These amendments willincorporate the provisions of recentlyenacted legislation.EFFECTIVE OATE: June 13, 1990.FOR FURTHER INFORMATION CONTACT.Paul C.'Tryhus, (Chief, Policies andProcedures Division,(136F1 VeteransHealth Services and ResearchAdministration, Department of VeteransAffairs, 810 Vermont Avenue NW.,Washington, DC 20420, (202) 233-2504.SUPPLEMENT-ARY INFORMATION: UnderVA regulations for determiningeligibility for outpatient care (38 UnitedStates Code 17.00), VA shall furnishoutpatient/ambtilatory care to thefollowing specified groups ,of eligibleveterans: 11) Veterans who requirecarefor their service-connected disabilities;(2) 'Veterans who are 50 percent or moreservice-connected and require care forany condition; and (3) Veterans whohave a disability for which they receivecompensation under 38 United StatesCode 351. Pre-bed care. post-hospitalcare, and care to obviate the need forhospitalization, for any condition, shallbe furnished to the following groups ofveterans. '(1) Veterans who are rated 30or 40 percent service-connected; -(2)Category "A" weterans whose annualincome does'not exceed the pension irAteof a veteran in need of Regular Aid andAttendance.

OUtpatient medical services for anycondition may he furnished on anoutpatient or ambulatory basis to 'thefollowing groups (of Veterans: (1)Veterans who are former prisoners ofwar, (2) Veterans who served during theMexican Border Period or World 'War 1;

(3) Veterans in receipt of increasedpension, additional compensation orallowance based on the need of RegularAid and Attendance or by beingpermanently housebound '(or who. butfor the receipt of retired pay. would bein receiptf such pension, compensationor allowance). Pre-bed care, care toobviate the need for hospitalization andpost 'hospital care may be furnished tothe -following groups -of veterans: (1)Catgegory "'A" veterans whose incomeexceeds the pension rate of a veteran inneed of Regular Aid and Attendance butbelow that of a Category "A" veteran;(2) Category "'B" veterans; (3) Category'C" veterans '(with co-payment) and (4)Veterans exposed to toxic substance -orradiation,

VA finds, for good cause, advancepublication for notice and publiccomment is not required. IlTe regulatoryamendment 'merely updates VAregulations consistent 'with the recentchange in law 'and does not involve anysubstantive 'hange in VA policy orregulations. 'Thus, in accordance with'the provisions of 38 CFR 1.12, advancepublication in the Federal Register isunnecessary. Accordingly, the change inthe regulations is'now published asfinal.

These final regulatory amendments donot meet the criteria for a major rule asthat term is defined by Executive Order12291' Federal Regulation. Theseregulatory amendments will not have a$100 million annual effect on theeconomy, will not cause a majorIncrease in costs ,or prices and will nothave any other significant adverseeffects on the economy.

'The'Secretary hereby certifies thatthese regulations will 'not have asignificant economic impact on thesubstantial numberof small entities asthey are defined in the RegulatoryFlexibility Act '5 United States Code601-612. Pursuant to 5 United StatesCode 605(b). these regulations aretherefore exempt from the regulatoryanalysis requirements of .5 United StatesCode 603 and 604. The reason for thiscertification is that the regulations onlyapply to veterans receiving outpatientmedical care within the VA system andimpose 'no regulatory burden on smallentities.(The Catalngzff Federal Domestic AssistanceNumbers are'84.009 and'64,1011)

List of Subjects in 38 CFR Part 17Alcoholism. Claims, Dental health,

Drug abuse, Foreign 'relations;Government contracts, Grant programs-health. Health care, Health facilities,Health professions, Medical devices,Medical research. Mental -health

programs, Nursing home care,Philippines, Veterans.

Approved: April 18 1990.Edward 1. Derwinski,Secretary of VeteransAffairs.

38 CFR Part 17, Medical, is amendedas follows:

PART 17-[AMENDED]

'Section 17.60 is being revised in 'itsentirety to read as 'follows:

117.60 Eligibility for ioutpatient servlces.(a) VA shall furnish on an am'bulatory

or outpatient basis medical services asare needed, to the following applicantsunder the conditions stated, except thatapplications for dental treatment mustalso meet the provisions of 117.123.(Authority: 38 U.S.C. 612)

(1) For service-connected disobility.Medical services on an ambulatory oroutpatient basis shall -be provided toany veteran for a service-connecteddisability (including a disability thatwas incurred or aggravated in the line ofduty and for which the veteran wasdischarged or released from 'the activemilitary naval -or air service).

(2) For 'verterans 50percent or moredisabled from a service-connecteddisability. Medical services on anambulatory or outpatient basis shall beprovided for any disability of a veteranwho has a service-connected disabilityrated at 50 percent or more.

(3) For veterans in receipt ofcompensation -under section .351 of tite38 .S.C 'Medical services onanambulatoryor outpatient basis shall beprovided to any veteran for a disabilityfor which the veteran is in receipt ofcompensation 'under section .351 of 'title38 IUS.C. or for which the veteran 'wouldbe entitled to compensation under thatsection (but in the ease of such asuspension, 'such medical services 'maybe furnished only to the extent that 'suchperson's continuing eligibility formedical services 4s provided for in thejudgment or settlement).

(4) Forcompensation and pensionexaminations. Acompensation 'andpension examination shall be performedfor 'any 'veteran 'who is directed to 'havesuch an examination by VA.(Authority: 38 U.SC. 111 and 210)

(5) For vdjunct treatment. Medicalservices on an ambulatory or 'outpatientbasis shall be provided to veteans for anadjunct nonservice-onnected conditionassociated with and held to beaggravating a disability from a diseaseor injuy adjudicated as 'being service-connected.

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DEPARTMENT OF VETERANSAFFAIRS

38 CFR Parts 14, 19, and 20

RIN 2900-AE02

Appeals Regulations; Rules of Practice

AGENCY: Department of VeteransAffairs.ACTION: Final regulations.

SUMMARY: The Department of VeteransAffairs (VA) is issuing final regulatoryamendments revising the Board ofVeterans' Appeals' (BVA) AppealsRegulations and Rules of Practicegoverning appeals practices andprocedures within VA. Conformingamendments have also been made toother related VA regulations. The effectof these amendments will be to reviseand update these regulations to reflectcurrent law and practices and to provideinformation needed by individuals whowish to appeal decisions made by VAadjudicatory bodies to the BVA. Therevisions are necessary in order toprovide appellate procedures whichconform to current law and to inform thepublic about those procedures.EFFECTIVE DATE: These rules areeffective March 4, 1992.FOR FURTHER INFORMATION CONTACT:Mr. Steven L. Keller, Counsel to theChairman (01C), Board of Veterans'Appeals, 810 Vermont Avenue NW.,Washington, DC 20420 (202) 233-2978.SUPPLEMENTARY INFORMATION: OnAugust 18, 1989, VA published in theFederal Register (54 FR 34334) a noticeproposing amendment of part 19 and theaddition of part 20 of title 38, Code ofFederal Regulations, to update theAppeals Regulations and Rules ofPractice of the Board of Veterans'Appeals. Conforming revisions to part14 were also proposed.

VA received ten comments on theproposed regulations-four from serviceorganizations, two from legal servicesorganizations allied with a serviceorganization, two from Members of theBoard of Veterans' Appeals, one from aVA employee, and one from a privateattorney-at-law.

Some commenters have referred tovarious sections of the Veterans'judicial Review Act (Pub. L. 100-687). Inthe remarks which follow, provisions ofthe Act which have been codified willbe referred to by their section numbersin title 38, United States Code (asamended by Pub. L. 100-687), ratherthan by section numbers of the Act. Allreferences to section numbers in title 38,United States Code, throughout thisdocument have been revised to reflect

the renumbering accomplished by recentlegislation.

There were several general comments,in addition to specific commentsconcerning individual amendments.

One commenter objected to movingthe cross-references from individualsections, where they are currentlylocated, to appendices to parts 19 and20-asserting that this format was lesshelpful to the user of the regulations. VAagrees that this method of setting outcross-references is somewhat lessdesirable, but the change was made atthe direction of the Office of the FederalRegister. The BVA plans to issue anupdated version of a pamphlet whichincludes these regulations (VA Pamphlet1-1) within the next few months. Thispamphlet version will use the old cross-reference format.

The same commenter suggested thatthe Rule of Practice references in part 20be abandoned and that only the CFRcitation be used. This suggestion has notbeen adopted. The Rule of Practiceterminology is widely used by judicialand quasijudicial bodies, such as theBVA. The use of Rule numbers, asopposed to CFR citations for individualRules of Practice, is common inappellate practice before the BVA. VAsees no benefit to be gained byabandoning this useful terminology,particularly at a time when attorneys-at-law who are very familiar with theterminology are becoming increasinglyinvolved in appellate practice before VAfield personnel and the BVA.

Finally, this commenter felt that theperiod of time allowed for publiccomment was too short-notingdifficulty in preparing comments withinthe time allowed. With respect to thiscomment, the BVA notes that it isgenerally willing to grant reasonablerequests for an extension of time withinwhich to comment if such an extensionproves necessary. This commenter didnot request an extension.

One commenter suggested thatregulations be promulgated "indicatingspecifically how BVA will handle,errors' in previous AOJ or BVAdecisions 'discovered' in the course of acurrent appellate review." Methods ofaddressing error in a prior BVA decisionare set out in § 20.904; in § 20.1000, etseq.; and in a notice of proposedrulemaking published elsewhere in thisissue of the Federal Register. VA doesnot believe that additional regulation onthe subject of the correction of error inprior rating decisions by the agency oforiginal jurisdiction is necessary at thistime. The Board may always correcterror in prior rating decisions which areproperly before it on appeal and maycall errors in determinations which are

not properly before it to the attention ofthe agency of original jurisdiction.

One commenter offered severalparagraphs of criticism under theheading "General Comments." Thesewere essentially conclusionaryparagraphs summarizing the nature ofcomplaints about specific amendments.Except to the extent that they areaddressed in the next two paragraphs.these comments will be discussed in thecontext of specific amendments.

As might be expected with a proposalof this size, some of the comments werein opposition to each other and some ofthe comments were internallyinconsistent. One commenter essentiallysuggested that many of theseamendments are contrary to the letterand spirit of Public Law 100-687, whileanother observed that many of theproposed amendments werestraightforward implementations of thatAct. The former's criticisms included acomplaint that the amendments weretoo adversarial, technical and legal,while at the same time requesting suchadditions as formal discoveryproceedings.

Some commenters were generallycomplimentary, expressing the view thatthe amendments were well structuredand would facilitate an orderlyappellate process. One commenter notedthat many of the amendments codifiedexisting practices.

Comments concerning specificamendments are set out in the materialwhich follows.

No comments, suggestions, orobjections were received regarding theamendments to part 14 and to §§ 19.1and 19.2. There was a typographicalerror in the heading of redesignated§ 14.635 (formerly § 14.637). The word"office" was placed in the wronglocation. This has been corrected. Withthis correction, these amendments areadopted as proposed.

Three comments were receivedconcerning the amendment of § 19.3.One commenter suggested thatparagraph (b) be revised to require thatBVA Sections have three Membersunless "overwhelming circumstancesprevent this." This suggestion has notbeen adopted. The language proposedconforms to the provisions of 38 U.S.C.7102. While the Chairman of the BVAhas divided the BVA into three-MemberSections, circumstances might arise inthe future which would require an enbanc approach in some instances. Inaddition, as contemplated by 38 U.S.C.7102(a)(2) and by paragraph (d) of thissection, there will inevitably be timeswhen less than three Members areavailable in an individual Section due to

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the absence of a Member of the Section,a vacancy on the Board, or the inabilityof a Member assigned to a Section toserve.

One commenter charged that thelanguage in paragraph (b), noting that aChief Member may be redesignated as aMember, was added under the guise ofbeing an editorial change and was aninappropriate provision allowing the"demotion" of "independent decisionmakers." This revision was notdescribed as an editorial change. It wasclearly identified in the notice ofproposed rule making. (See 54 FR 34334.)The position of Chief Member of a BVASection is one which addsadministrative tasks, which are entirelyseparate and apart from decisionmaking in individual cases before theBVA, to the normal duties of a Memberof the BVA. It does not carry with it anyincrease in pay or entitlements. ChiefMembers, as such, are judged on theiradministrative skills and not on theirdecision making record. 38 U.S.C.7102(a)(1) provides that the Chairmanmay designate the Chief Member of aBVA Section. This regulation merelymakes clear what was implicit in thatauthority, that one individual may bedesignated in place of another whenappropriate. Such a reassignment doesnot involve any loss of pay orentitlements and does not constitute a"demotion."

One commenter voiced the opinionthat 38 U.S.C. 7102 and 7103 require thata minimum of two Members participatein an appeal and that the use of theword "Members" at the end ofparagraph (d) is therefore contrary tolaw. VA does not agree with thisstatutory interpretation. While it wouldbe unusual to have two vacancies,absences, or Members who were unableto serve in an individual section at anygiven time, VA is of the opinion thatproceeding with one Member ispermissible under 38 U.S.C.7102(a)(2)(A)(iii) under suchcircumstances. The use of the pluraldoes not represent a change from theprior regulation on which this paragraphwas based.

The same commenter also objected tothe use of the phrases "other goodcause" and "participate effectively" inparagraph (d), asserting that theseprovisions are contrary to the provisionsof 38 U.S.C. 7102(a)(2)(A) and violate a"claimant's" rights to an unbiased BVApanel. VA does not agree with thisstatutory interpretation, nor does thisamendment bring about any impairmentof an appellant's rights. VA does agree,however, that the terms objected to aresomewhat vague and they have been

removed. In their place, a cross-reference to the more specific standardsset out in § 19.12 has been added.Editorial changes have also been madein paragraph 19.3(a) to make it clearerthat the Deputy Vice Chairmen arechosen from Members of the Board.With these changes, the amendment to§ 19.3 is adopted.

No comments, suggestions, orobjections were received regarding theamendment of § 19.4. This amendment isadopted as proposed.

Three comments were receivedconcerning § 19.5. Each commenternoted that this section, which lists thecriteria governing the disposition ofappeals by the BVA, omitted a referenceto decisions of the United States Courtof Veterans Appeals (COVA). VA is ofthe opinion that no such reference isnecessary. VA, of course, recognizesthat the BVA will be bound by courtdecisions in some cases.

Proposed 1 19.6 has been withdrawnand this section number is reserved.This paragraph concerned thecomposition of Board of Veterans'Appeals hearing panels, and it is beingwithdrawn because it was morerestrictive than necessary regarding thecomposition of hearing panels. Twocomments were received, neither ofwhich relates to the reason for thewithdrawal of this paragraph.

One comment was received on § 19.7.This commenter suggested that thephrase "and upon consideration of allevidence and material of record andapplicable provisions of law andregulations," found in 38 U.S.C. 7104(a),be added to the closing sentence ofparagraph (a). This suggestion has notbeen adopted. This paragraph alreadyprovides that decisions of the BVA arebased upon the entire record. The"entire record" necessarily includes "allevidence and material of record."Governing criteria, such as the law andregulations, are the subject of § 19.5.Adding the suggested phrase would beredundant.

VA is withdrawing proposedparagraph 19.7(b). That paragraphsuggested (in part) that issues on appealcould be disposed of by remand or byvacating a prior decision of the Boardwith respect to the issues. That was notaccurate. A remand serves to directfurther development prior to theappellate disposition of the issues. Itdoes not "dispose" of an issue onappeal. Neither does vacating a priorBoard decision dispose of an issue.When a prior decision is vacated, it isnormally followed by a new decisionwhich disposes of the issue.

Due to the withdrawal of proposedparagraph 19.7(b), proposed paragraph19.7(c) has been redesignated as 19.7(b).

With these changes, the amendment isadopted.

No comments, suggestions, orobjections were received regarding theamendments to § § 19.8 and 19.9.Information has been added to § 19.8 tomake it clearer that BVA decisions incontested claims which are provided tothe contesting claimants will includeonly information pertinent to thecontested issues. With this addition,these amendments are adopted asproposed.

Proposed § 19.10 has been withdrawnand this section number is reserved. TheGeneral Counsel of the Department ofVeterans Affairs issued a PrecedentOpinion on August 27, 1990, whichconcluded, in essence, that statutorychanges brought about by the Veterans'Judicial Review Act (Pub. L. 100-687)had the effect of eliminating "obviouserror" as the standard for review by areconsideration Section after a motionfor reconsideration has been granted.(See O.G.C. Precedent Opinion 89-90, 56FR 1225.) This change also eliminatedthe principal basis for proposed § 19.10which, in most cases, limited theevidence which could be considered bya reconsideration Section to that whichwas of record at the time that thedecision being reconsidered wasrendered.

One comment was received regarding§ 19.11. Proposed paragraph (c) providedthat when a traveling BVA Section isexpanded to address thereconsideration of a prior BVA decisioninvolving radiation, Agent Orange, orasbestos exposure, the additionalMembers of the expanded Section willinclude Members specializing in thoseissues. The commenter suggested thatthis requirement for Membersspecializing in particular issues beexpanded to include post-traumaticstress disorder and "complex medicalcausation issues such as the dates ofinception of a veteran's cancer or otherdisease."

This suggestion has been adopted inpart. Post-traumatic stress disorder hasbeen added, as suggested. Familiaritywith this area is helpful in ensuringcomplete development of the appellaterecord. Material regarding medicalcausation issues has not been added.Medical causation issues must bedecided on the basis of the evidence ofrecord (see Colvin v. Derwinski, U.S.Vet. App. No. 90-196 (Mar. 8, 1991)). Incases of extraordinary complexity,Members have the option of seeking the

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opinion of an independent medicalspecialist. (See J 20.901, infra.)

Section 19.11. as proposed, continuedthe long-existing practice of allowing athree-Member BVA Section to hearcases before the BVA onreconsideration when none of theMembers who participated in theoriginal decision is available. 38 U.S.C.7103(b) now requires that allreconsideration actions be heard "by anexpanded section of the Board." Thereferences to three-Member Sectionshave therefore been withdrawn.

An editorial revision has been madeto change the word "panel" to "Section"in the section heading and in the text ofthis section when the reference is to areconsideration Section. This changehas been made so that the amendmentwill parallel the language which appearsin 38 U.S.C. 7103(b).

With these revisions, the proposedamendment is adopted.

Two comments were receivedconcerning proposed section § 19.12.Essentially, the commenters feel thatparagraph (c) gives the Chairman toomuch authority over other Members ofthe BVA, is beyond statutory authority,and should be removed. VA does notagree. This paragraph allows theChairman to disqualify a Member of theBoard from participating in a particularappeal if the Member gives theappearance of bias, has participated in aprior administrative appeal in the samecase on the same issue (and who mightnaturally tend to be biased in favor ofhis or her prior decision), or is unable orunwilling to act in the case. VA believesthat a procedure for Memberdisqualification under thesecircumstances is lawful and is essential.Impartiality is basic to an equitableappellate process. (See, for example,Canons 2 "A judge should avoidimpropriety and the appearance ofimpropriety in all his activities" and 3"A judge should perform the duties ofhis office impartially and diligently" ofthe ABA Code of judicial Conduct.] BVAdecisions are to be made on the basis of"the entire record in the proceeding andupon consideration of all evidence andmaterial of record and applicableprovisions of law and regulation." (38U.S.C. 7104(a)). They are not to be madeon the basis of personal prejudice. 38U.S.C. 7102 provides options to theChairman, including substitution ofanother Member, when a Member of aBVA Section is unable to serve. VA is ofthe opinion that a Member who isbiased or who is unwilling to serve in aparticular case has demonstrated aninability to serve within the meaning ofthis statutory provision. VA does feelthat 38 U.S.C. 7104 should be included in

the statutory authority cited, however,and this authority has been added in theinterest of clarity. With this addition,the amendment is adopted.

No comments, suggestions, orobjections were received regarding theamendment of § 19.13. The GeneralCounsel of the Department of VeteransAffairs issued a Precedent Opinion onMay 17, 1990, which had the effect ofinvalidating the "administrativeallowance" procedures of the BVA bothin its current Rules of Practice and inthese proposed regulations. (See O.G.C.Precedent Opinion 11-90, 55 FR 27756.]Such opinions are binding upon theBVA. (See 38 U.S.C. 7104(c).]Accordingly, all references to thoseprocedures have been withdrawn fromthese proposed amendments. Thematerial withdrawn includes proposedparagraph 19.13(b). Proposed paragraph19.13(c) has been redesignated as19.13(b). With these changes, thisproposed amendment is adopted.

Proposed 1 19.14 has been withdrawn.This proposed regulation dealt with themanner in which written decisions ofthe BVA should be prepared when thecase involves a prior ratingdetermination by the agency of originaljurisdiction which has become final dueto the failure to file a timely appeal tothe BVA. Decisions by COVA, issuedafter this regulation was published inproposed form, have altered the BVA'atraditional approach to prior "final"adjudicative actions. (E.g., see Manio v.Derwinski; U.S. Vet. App. No. 90-86(Feb. 15,1991); Colvin v. Derwinski, U.S.Vet. App. No. 90-196 (March 8, 1991);and Smith v. Derwinski, U.S. Vet. App.No. 89-13 (March 15, 1991).) Theproposed regulation was not in completeaccord with these decisions andCOVA's opinions provide sufficientguidance concerning BVA decisionpreparation in this area.

No comments, suggestions, orobjections were received regarding theamendments to § § 19.15 and 19.25.Proposed § 19.15 has been redesignatedas § 19.14 in view of the withdrawal ofproposed § 19.14. The reference toproposed § 19.6, which has beenwithdrawn, has been deleted. Withthese revisions, these amendments areadopted as proposed.

No comments, suggestions, orobjections were received regarding theamendment to 1 19.26. However, thissection has been revised In response tocomments offered in connection with§ 20.201. See the discussion concerning§ 20.201, infra, for informationconcerning this change. The amendment,as revised, is adopted.

No comments, suggestions, orobjections were received regarding the

amendments to §§ 19.27 and 19.28.These amendments are adopted asproposed.

Two comments were receivedconcerning 1 19.29.

One commenter suggested that thissection be modified to require adiscussion of applicable COVA caselaw and of any applicable precedentopinions of the General Counsel of theDepartment of Veterans Affairs in theStatement of the Case as an aid tounrepresented appellants. While VAappreciates the concern whichmotivated this suggestion, it has notbeen adopted. This regulation, and thestatute upon which it is based, alreadyrequires that the Statement of the Caseinclude the reasons for eachdetermination of the agency of originaljurisdiction with respect to whichdisagreement has been expressed. Thiswould include decisions by courts ofcompetent jurisdiction and opinions bythe General Counsel when they areapplicable.

The second commenter suggested thatthe phrase "and a discussion of howsuch laws and regulations affect thedetermination" be deleted fromparagraph (b). contending that thephrase "would constitute a repetition ofinformation already required bysubparagraph (c]." This suggestion hasnot been adopted. The language inquestion is a direct quotation oflanguage added to 38 U.S.C. 7105(d)(1)by Public Law 100-687. The languagedoes not duplicate the language inparagraph (c). The new statutorylanguage appears to require a discussionof why various statutes and regulationsare applicable to a particular case whileparagraph (c) requires a discussion ofwhy a particular decision was made.This decision could be (and often is) ona purely factual basis as opposed to atechnical legal basis. While there can besome overlap, the requirements of thetwo paragraphs are not interchangeable.

This amendment is adopted asproposed.

One comment was offered concerning§ 19.30. The commenter suggested, inessence, that VA require that documentsprovided to representatives be sent bymail and that using a "drop-box," as isdone at some VA Regional Offices, beforbidden. It was alleged that the "drop-box" service was not effective, but noexplanation of why this is the case wasgiven. This suggestion has not beenadopted and the amendment is adoptedas proposed. This delivery control is notproper subject matter for theseregulations. Further, VA is not aware ofany special problems with "drop-box"service, which is more expeditious than

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mail delivery and which is a relativelyconvenient means of document deliveryfor both VA and representatives. It issuggested that any problem withdocument delivery at any particularfield office be brought to the attention ofthe director of that office so thatcorrective action may be taken.

Three comments were received on§ 19.31. The current equivalentregulation (38 CFR 19.122) provides, inpart, that a Supplemental Statement ofthe Case is required when additionalpertinent evidence is received and that aSupplemental Statement of the Case isnot required following a hearing beforefield personnel when no additionalpertinent evidence is received. Theamended regulation makes it clear thatthe evidence referred to includestestimony concerning relevant facts orexpert opinion, as well as documentaryevidence, but that argument is notevidence.

Two commenters suggested that aSupplemental Statement of the Case berequired to answer arguments advancedat a hearing held by the agency oforiginal jurisdiction. VA does notbelieve that this further requirement isnecessary or desirable. The purpose ofStatements and SupplementalStatements of the Case is to provideappellants with the data which theyneed, but may not have, to prepare theirappeal to the BVA-a summary of thepertinent evidence, informationconcerning pertinent laws andregulations, and the decision of eachissue and a summary of the reasons foreach decision. (38 U.S.C. 7105(d)(1)).They are not appellate decisions.Addressing arguments raised byappellants is the function of theappellate decision. The BVA is notbound by an agency of originaljurisdiction's position with respect toarguments advanced by appellants andtheir representatives.

The third commenter asserted thatlanguage should be added to moreclearly define the difference betweentestimony and argument, using as anexample a situation in which a veteranmight regard his or her own statement offacts concerning the symptomatologyassociated with his or her disability astestimony while a hearing officer "orother responsible person" might regardthe same statement as argument. Thissuggestion has not been adopted. Whilethere may be certain gray areas, theseterms are relatively well understood. Itis impossible to anticipate everyvariation which may arise. Disputesconcerning what is testimonial evidenceand what is argument are best resolvedon a case by case basis. In the example

given, the veteran would certainly becorrect and the hearing officer would bein error. A veteran's oral description ofhis or her symptoms in a case in whichthe nature or severity of a disability is atissue would very clearly be "testimonyconcerning the relevant facts" in theterms used by the amended regulation.Statements of fact made by appellantsand witnesses are evidence which mustbe weighed by the decision maker.

While these comments have beenconsidered, § 19.31 Is adopted asproposed.

One comment was submittedconcerning § 19.32. This commentersuggested that the word "response" inthe second sentence be changed to"Substantive Appeal." VA agrees thatthis would be preferable. This section isadopted, with that change.

No comments, suggestions, orobjections were received regarding theamendments to § § 19.33 and 19.34.These amendments are adopted asproposed.

One comment was received on§ 19.35. The commenter asked thatlanguage be included to require that theissues listed in the appeal certification(VA Form 1-8) be the same as the issuescovered in the Statement of the Caseand any Supplemental Statements of theCase. That is normally the correctpractice. Nevertheless, this suggestionhas not been adopted. Completion of VAForm 1-8 is accomplished foradministrative purposes. Primarily, itserves as a last-minute appealprocessing check list for use by VA fieldfacilities prior to transfer of the appealto the BVA. The appeal certificationdoes not have any effect on the BVA'sjurisdiction. Details of how the VA Form1-8 is completed are best left to VAadministrative manuals. For the samereason, other details concerningcompletion of the form have beenwithdrawn and the language of thesection has been simplified. Assimplified, the amendment is adopted.

Two comments were receivedconcerning § 19.36.

One commenter suggested that thenotice of certification of an appeal to theBVA include notification as to the issuesbeing certified. VA does not believe thatthat is necessary. Appellants and theirrepresentatives are informed of theissues considered to be in an appellatestatus through the Statement andSupplemental Statements of the Case.The appeal certification primarilyfunctions as a check list for the agencyof original jurisdiction to insure that allappeal processing procedures have beencompleted prior to the transfer of thecase to the BVA. The certification doeb

not serve to confer jurisdiction on theBVA with respect to a particular issue.The second commenter offered the samecomment on this section as was offeredon § 19.30 concerning the use of "drop-boxes" to deliver documents torepresentatives. The same responseapplies.

Proposed § 19.36 was essentially aduplicate of a proposed amendment of38 CFR 19.174(a) which had beenpublished for public comment on July 6.1989. (54 FR 28445) The final version of38 CFR 19.174 was published on May 15,1990. (55 FR 20144) Several changesarising out of comments received wereincorporated into the final rule. Theseincluded a requirement that appellantsand their representatives be notified ofvarious restrictions concerning changesin representation, requests for personalhearings, and the submission ofadditional evidence after an appeal hasbeen certified to the BVA. A conformingrevision has been made to § 19.36 and,with this revision, the amendment isadopted.

One comment was received on§ 19.37. This commenter felt thatparagraph (a) should be revised todelete the language providing that aSupplemental Statement of the Caseneed not be issued when duplicateevidence is received which has alreadybeen discussed in a Statement of theCase or Supplemental Statement of theCase. VA finds no merit in thissuggestion. Appellants andrepresentatives often submit duplicatecopies of documents which they havesubmitted before or copies of recordswhich they obtained from VA in the firstplace. No useful purpose is served byagain discussing evidence which hasalready been discussed.

Two comments were receivedconcerning § 19.38. The proposedsection provides that developmentcompleted by the agency of originaljurisdiction pursuant to a remand fromthe BVA should be reviewed by thatagency to determine if that developmentshows that the benefit sought on appealshould be allowed. One commentersuggested that a review of the entirerecord be required and felt that theproposed section seemed to indicatethat the review would be limited to onlythe information developed as a result ofthe remand. It is certainly not VA'sintent that the post-remand developmentbe reviewed in a vacuum. Changes havebeen made to make it clear that thereview is to take into consideration theevidence which was previously ofrecord. The other commenter noted thatthe 30-day period referenced in thissection is in conflict with the provisions

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of § 20.302(c). The commenter is correctand this error has been corrected. Withthese changes, the amendment isadopted.

No comments, suggestions, orobjections were received regarding theamendments to §§ 19.50 through 19.53,19.75 through 19.77, and 19.100 through19.102. Material has been added to§ § 19.101 and 19.102 to make it clearerthat information which is provided tothe contesting claimants in contestedclaims is limited to informationpertinent to the contested issues. Withthis addition, these amendments areadopted as proposed.

One cnmmenter did suggest that VA'ssubstantive appeal form (VA Form 1-9)be annotated to show that requests forhearings before traveling sections of theBVA should be submitted to theapplicable VA field office, rather than tothe BVA, as required by § 19.75. Thisform was extensively revised in October1989 and now includes this information.

A commenter suggested that a cross-reference from § 19.76 to § 20.704 beadded to appendix A to part 19. VAagrees that this would be helpful andthis cross-reference has been added.References to proposed I § 19.13(b) and19.14, which have been withdrawn, havebeen removed. The appendix is adopted,with these revisions.

One comment was received on § 20.1.It was suggested that the introductoryclause "In accordance with the agency'spolicy of providing assistance to theappellant," be restored to what is nowparagraph (b). The operative language ofthe prior section 'These rules are to beconstrued to secure a just and speedydecision in every appeal" has beenretained. The omitted introductoryclause adds nothing of substance. Thisamendment is adopted as proposed.

One comment was received regarding§ 20.2. This commenter alleged that thissection (which provides that theChairman may prescribe proceduresconsistent with the provisions of title 38,United States Code, and the BVA'sRules of Practice when a situation ariseswhich is not covered by any existingrule or procedure) removes authorityfrom Chief Members which theypreviously had, that it is contrary to theintent of Public Law 100-687, and that itis inefficient inasmuch as BoardSections will be forced to delayprocessing of a case while it is routedthrough the Chairman's office. VA doesnot agree with these remarks and theamendment is adopted as proposed.This authority has not been removedfrom Chief Members. Section 20.102,paragraph (c), extends this authority tothe Vice Chairman; the Deputy ViceChairmen; and, in connection with

proceedings assigned to them, to otherMembers of the Board who have beendesignated as the Chief (or Acting Chief)Member of a Section or who are actingas the presiding Member of a hearingpanel. It should also be borne in mindthat the Chairman is, in fact, a Memberof the Board (see 38 U.S.C. 7101) and hasthe same decision making authority asany other Member of the Board-inaddition to special authority conferredby law in certain instances (e.g., see 38U.S.C. 7103). In addition, he or she is thechief administrative officer of the Boardin a position not unlike that of the chiefjudge of an appellate court. It is, ofcourse, impossible to anticipate everyprocedural contingency when writingRules of Practice and, from time to time,procedures must be devised to deal withunique situations. Occasions arise whenspecial procedures must be devised incases which are not yet before a BVASection or in which Section action hasbeen completed. The requirement thatany necessary ad hoc procedure beconsistent with existing statutory andregulatory authorities providesprotection from abuse.

One comment was receivedconcerning 6 20.3. The commenter statedthat "legal intern" should be defined asa law student, rather than as a graduateof a law school who has not yet beenadmitted to the bar, and that thedefinition of "legal intern" proposed wasactually the appropriate definition of"law clerk." The proposed definition of"legal intern" is consistent with BVApractice and with the definition in"Black's Law Dictionary," which definesan intern as "an advanced student orrecent graduate in a professional field."(Black's Law Dictionary 732 (5th ed.1979). A separate definition of "lawstudent" is provided. Inasmuch as theseterms are clearly defined in this section,no confusion should result.

"Cemetery" has been added to the listof VA facilities which are included inthe definition of "agency of originaljurisdiction" as an editorial change.Cemeteries were previously included viathe phrase "or other Department ofVeterans Affairs facility."

Paragraph 20.3(k), as published,contained typographical errors. In thesecond sentence, "60 days" should read"90 days" and the reference to§ 20.609(g) should have been to§ 20.609(i). These errors have beencorrected.

With these revisions, § 20.3 isadopted.

No comments, suggestions, orobjections were received regarding theamendment of 1 20.100. This amendmentis adopted as proposed.

Two comments were received on§ 20.101. With one exception, bothconcern the third sentence of paragraph(a), which is similar to language inproposed 1 19.5, and both comments areessentially the same as the commentsoffered concerning 1 19.5, supra. Thesame response applies. One of thecommenters also felt that the statementin paragraph (c) that only the Board ofVeterans' Appeals will make finaldecisions with respect to its jurisdictionmight mislead readers to believe that theUnited States Court of VeteransAppeals could not review such adetermination. The statement, of course,applies only to determination of BVAjurisdiction within VA. The statementhas been modified to reflect that such adetermination may be subject to judicialreview. With this change, theamendment is adopted.

One comment was offered concerning§ 20.102. The commenter indicated thatthe intent of paragraph (d) was unclear,inasmuch as it appeared to authorizeany Member of the BVA to rule on amotion for a subpoena or to quash asubpoena under proposed § 20.711(e)and (I), respectively. VA agrees thatclarification is in order. This commentand comments in response to § 20.609(i),infra, bring to light the fact that thisproposed regulation did not make itclear that the various authorityexercised by BVA Members assigned toBVA Sections is to be exercised in thecontext of proceedings which have beenassigned to them for disposition inaccordance with the provisions of 38U.S.C. 7102(c). Appropriate material hasbeen added to paragraphs (c) and (d) toclarify this aspect of the regulation.While not noted by a commenter. thereis one typographical error in paragraph(d). The reference to § 20.609(g) shouldbe to § 20.6091i). This error has beencorrected. A reference to proposed§ 20.1101, which has been withdrawn,has been removed. The amendment,with the revisions noted, is adopted.

No comments, suggestions, orobjections were received regarding theamendment of § 20.200. This amendmentis adopted as proposed.

Three comments were receivedconcerning J 20.201.

One commenter noted that thissection refers to filing a Notice ofDisagreement with an adjudicativedetermination by an agency of originaljurisdiction and suggested that aprovision be included specificallyaddressing appeal of determinations byVA's Veterans Health Administration(VHA)-apparently under the mistakenbelief that the term "agency of originaljurisdiction" applies only to field

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facilities of the Veterans BenefitsAdministration. When a VHA facilityhas made the determination beingappealed, it is the "agency of originaljurisdiction." (See I 20.3(a).)

The commenters raised objection towhat are alleged to be unwarrantedprocedural requirements for Notices ofDisagreement, including the use of theword "must" in the second sentence andthe requirement that the issues withwhich disagreement is being expressedbe identified. VA does not agree thatthese provisions are unwarranted. Theword "must" to which the objection israised occurs in the following sentence-"While special wording is not required,the Notice of Disagreement must be interms which can be reasonablyconstrued as disagreement with thatdetermination and a desire for appellatereview." VA has always been, and willcontinue to be, liberal in determiningwhat constitutes a Notice ofDisagreement. The continuation of thispolicy is demonstrated by the lack of arequirement for special wording and theuse of the phrase "can be reasonablyconstrued." Nevertheless, someindication which reasonable personscan construe as disagreement with adetermination by an agency of originaljurisdiction and a desire to appeal thatdetermination is at the very heart ofwhat constitutes a Notice ofDisagreement. Without such anexpression, the communication may besomething, but it is not a Notice ofDisagreement. Not much is required, butthe communication must berecognizable as a Notice ofDisagreement.

Important consequences flow fromfiling a Notice of Disagreement. Asprovided in 38 U.S.C. 7105(a), appellatereview is initiated by a Notice ofDisagreement. The Notice ofDisagreement is jurisdictional--that is,without a Notice of Disagreement, theBVA does not have jurisdiction over anissue (except as provided in J 19.13).Further, it would not be fair for the BVAto assume jurisdiction over an issuebefore a claimant, who may still havemonths remaining before the time toappeal lapses, has completed his or herpreparation and is ready to initiate anappeal as to that issue. Thus, it is vitalthat the BVA be able to tell which issueshave been appealed when severaldeterminations have been made whichare appealable.

It is not VA's intent to deprive anyoneof his or her right to appeal. As onecommenter pointed out, a Department ofVeterans Benefits operational manual(M21-1, paragraph 18.03b) requires thatclarification sufficient to identify the

issue being appealed be requested whena Notice of Disagreement is receivedfollowing a multiple-issue determinationand it is not clear which issue, or issues,the claimant desires to appeal. VAstrongly supports this policy and, inview of the concerns raised here, hasmade it applicable throughout VA byadding this requirement to 5 19.26"Action by agency of originaljurisdiction on Notice of Disagreement."The BVA may also remand cases forissue clarification when necessary. Withthis addition, § 20.201 is adopted asproposed.

Three comments were also receivedconcerning 120.202.

One commenter objected to therequirement that the issues beingappealed be Identified. VA believes thatthis requirement is appropriate for thesame reasons noted in conjunction witha similar objection to 5 20.201. It is alsonoted that one of the purposes of thecurrent statutory appellate process is tonarrow appeals to those issues which anappellant really wants to appeal afterthe reasons for a determination havebeen explained to him or her in theStatement of the Case and that 38 U.S.C.7105(d)(3) provides that the benefitssought on appeal must be clearlyidentified in the formal appeaL

Two commenters objected to the useof the word "must," rather than"should" in conjunction with therequirement that the Substantive Appealset out specific argument relating toerrors of fact or law made by the agencyof original jurisdiction. This objection iswell taken in view of the word "should"in the statute on which this provision isbased (38 U.S.C. 7105(d)(3)) and this hasbeen corrected.

One commenter stated that "we arevery much concerned by the newauthority created by this section whichwould allow the BVA to unilaterallydismiss an appeal which does not allegean error of fact or law." This authority isnot new. 38 U.S.C. 7105(d)(5) specificallystates that "The Board of Veterans'Appeals may dismiss any appeal whichfails to allege specific error of fact orlaw in the determination beingappealed." VA believes that it isappropriate that this fact be brought tothe attention of appellants and theirrepresentatives in this Rule of Practice.VA also notes that the BVA has been,and will continue to be, very liberal inthis area. This Rule of Practice alsoprovides that "The Board will construesuch arguments in a liberal manner forpurposes of determining whether theyraise issues on appeal * o.. and§ 20.203 provides that appellants andrepresentatives will be given notice and

an opportunity to contest the matterwhen the BVA questions the adequacyof the Substantive Appeal.

One commenter objected to aperceived requirement for "the claimantto lay out all specific arguments in theSubstantive Appeal," observing that ithad previously been sufficient toaddress issues in general terms and tobe more specific in "the presentation tothe BVA" (apparently a reference toformal and informal hearingpresentations and/or appellate briefs).There is nothing in the proposedamendment which changes the practicedescribed. That is, this amendmentneither precludes nor discouragesraising additional arguments, or furtherexplaining prior arguments, concerningappealed issues in presentationssubsequent to the Substantive AppeaL

This proposed amendment is adopted,with the correction described above.

No comments, suggestions, orobjections were received regarding theamendments to it 20.203, 20.204, 20.300and 20.301. These amendments areadopted as proposed.

One comment was received on§ 20.302. This commenter feels that thelanguage in paragraph (c) which extendsthe time to respond to a SupplementalStatement of the Case to 0 days shouldnot be adopted and that the responsetime should remain at 30 days. As thecommenter notes and as was set forth inthe notice of proposed rulemaldag, thereason for this change is that when newissues are included in a SupplementalStatement of the Case it becomes theStatement of the Case as to the newissues. The law provides that anappellant has 60 days after receiving aStatement of the Case within which tofile a Substantive Appeal. (See 38 U.S.C.7105(d)(3).) The commenter argues thatnew issues should not be included inSupplemental Statements of the Case.While VA understands that the "purest"procedure might arguably be to require aseparate Statement of the Caseconcerning new issues raised, that is notthe procedure used by VA regionaloffices In some cases. There is nothinglegally wrong with consolidating theappeals, provided that the agency oforiginal jurisdiction bears in mind thatwhen a new issue is raised and denied,there must be a Notice of Disagreementwith respect to the new issue before it isincluded in a Statement or SupplementalStatement of the Case. This amendmentis adopted as proposed.

The same commenter raised anobjection to 9 20.303 with the followingcomment: "Please refer to commentspertaining to the "00-day period" underthe preceding paragraph." The

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paragraph referred to was the onecontaining the above objection to§ 20.302. Apparently, the objectionrelates to the reference to a 60-dayperiod for responding to a SupplementalStatement of the Case. The language inthis amendment has not been modifiedfor the same reasons noted in thediscussion concerning § 20.302. Theamendment is adopted as proposed.

No comments, suggestions, orobjections were received regarding theamendment of § 20.304. This amendmentis adopted as proposed.

One commenter feels that thepresumption In § 20.305 that a documenthad been postmarked 5 days prior to it'sreceipt when the actual postmark is notavailable is too liberal and that a threeday period is more appropriate. WhileVA agrees that this is perhaps liberal,this suggestion has not been adopted.This commenter also noted that mailservice is provided on Saturday-inessence suggesting that the exclusion ofSaturday in calculating the 5-day periodis inappropriate. VA notes that mailservice is not provided in all areas onSaturdays. The amendment is adoptedas proposed.

No comments, suggestions, orobjections were received regarding theamendment of § 20.306. "Martin LutherKing, Jr.'s Birthday" has been changedto "Birthday of Martin Luther King, Jr."and the apostrophe has been removedfrom "Veterans Day" to conform with 5U.S.C. 6103. This amendment is adoptedwith these revisions.

One comment was receivedconcerning § 20.400. The commentersuggested that the fourth sentence bemodified by adding the words "by theclaimant or the claimant'srepresentative," or similar words, afterthe word "argument" to make it clearthat only the claimant or his or herrepresentative may authorize a mergedappeal. While that is already relativelyclear from the proposed regulation, thesuggested addition is accepted and theproposed amendment is adopted withthis addition.

No comments, suggestions, orobjections were received regarding theamendments to § § 20.401 and 20.500.These amendments are adopted asproposed.

One comment was received regarding§ 20.501. This commenter, who was alsothe only commenter on § 20.302,suggested revision of the last twosentences of paragraph (c) "for the samereasons previously eluded (sic) to incomments pertaining to 20.302, asproposed." Presumably, the objection isto the concept of inclusion of new issuesin a Supplemental Statement of theCase. For the same reasons outlined in

response to the comments concerning§ 20.302, this suggestion has not beenadopted and the amendment is adoptedas proposed.

No comments, suggestions, orobjections were received regarding theamendments to § § 20.502 through 20.504and 20.600 through 20.605. Section20.603(a), as proposed, was slightly morerestrictive than 38 CFR 14.629(c) withrespect to the documentation required toappoint an attorney-at-law as arepresentative in VA proceedings.Section 20.603(a) has been revised tomake it consistent with%38 CFR 14.629(c).With this revision, these amendmentsare adopted as proposed.

Two comments were receivedconcerning § 20.606, both addressed toparagraph (e) which notes thatpermission for a legal intern, lawstudent, or paralegal to prepare andpresent cases before the Board may bewithdrawn by the Chairman at any timeif a lack of competence, unprofessionalconduct, or interference with theappellate process is demonstrated bythat individual. (This authority has alsobeen delegated to the Vice Chairman,the Deputy Vice Chairmen, andMembers of the Board. See § 20.102(d).)

One commenter felt that thisparagraph "unlawfully" singles out legalinterns, law students and paralegals for"an entirely new and separate disciplinesystem for such representatives" andsuggested that procedures such as thoseset out in 38 CFR 14.633(c) (pertaining totermination of recognition ofrepresentatives) be adopted. The secondcommenter felt that this paragraph wasbased upon an assumption that lawstudents are more prone to engage inunprofessional conduct than are otherrepresentatives and cited the care usedby law students utilized by thecommenting organization in preparationfor BVA hearings and the training whichthe commenting organization gives tolaw students participating in suchhearings. Fear was expressed that anappellant's case would be prejudicedshould a law student be disqualifiedduring the course of a hearing and asupervising attorney, who had notestablished an equally close workingrelationship with the appellant, berequired to complete the hearing. Fearwas also expressed that various pre-hearing and hearing requests bystudents which might be inconvenient tothe BVA's administrative staff andBoard Members could be deemed"unprofessional" and that irritation witha "representative's" persistence mighttherefore cut off the representative'sability to properly develop the record.

The BVA has permitted law students,paralegals, and legal interns to

participate in hearings (withprofessional supervision by attorneys-at-law) for a number of years. VAmakes no assumption that law studentsare especially prone to unprofessionalconduct and recognizes that most ofthese individuals are sincere anddedicated. It also recognizes thevaluable experience which suchparticipation provides in the training oflaw students. Unless independentlyqualified, however, these individuals arenot representatives. They may be futurerepresentatives in training, but they donot have the same status asrepresentatives and they are not subjectto the disciplinary procedures describedin 38 CFR 14.633. Rather, they arepermitted to assist an attorney-at-lawwho is the accredited representative asa courtesy to that representative. It isthe supervising attorney-at-law who isresponsible for the prosecution of theappeal.

While VA recognizes the valuablecontribution which BVA experience mayprovide in the training of paralegals, lawstudents, and interns and the valuableservice which these individuals provideto appellants in most instances, theBoard's primary responsibility is toinsure that justice is done in eachindividual case and that appellants arenot ill-served by inexperiencedindividuals in training.

The BVA encourages zeal in theprosecution of appeals. Thoroughrepresentation is very helpful to theBVA, as well as to appellants, inensuring that all facts and applicablelegal theories are brought to light so thatjustice may be served in each individualappeal. Nevertheless, BVA BoardMembers have a right to expect thatthey will be treated withprofessionalism in the course ofappellate presentations. Further, trainingin professional responsibility is no less aproper part of a law students' educationthan is training in substantive andprocedural law. The American BarAssociation's "Model Rules ofProfessional Conduct" provide, in part,that a lawyer shall not engage inconduct intended to disrupt a tribunal.(Rule 3.5) The following comment, whichfollows that provision, is germane:

The advocate's function is to presentevidence and argument so that the cause maybe decided according to law. Refraining fromabusive or obstreperous conduct is ,corollary of the advocate's right to speak onbehalf of litigants. A lawyer may stand firmagainst abuse by a judge but should avoidreciprocation: the judge's default is nojustification for similar dereliction by anadvocate. An advocate can present the cause,protect the record for subsequent review andpreserve professional integrity by patient

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firmness no less effectively than bybelligerence or theatrics.

A mechanism such as that inparagraph (e) is necessary for theprotection of the appellate process inthose few cases where the privilegeextended to these individuals is abused.Considering the status of theseindividuals, the elaborate proceduresprovided for the suspension ordebarment of a representative set out in38 CFR 14.633 are not appropriate. VAhas no reason to believe that theauthority described in this paragraphwill be abused by any Member of theBVA. Should such a situation arise, theissue may be appropriately raised onappeal. If the supervising attorneyperforms his or her functionappropriately and monitors theprofessionalism of the law student, legalintern, or paralegal who is assisting himor her at an appellate hearing; there willbe no cause for excluding such anassistant during the course of a hearing.The supervising attorney is therepresentative of record. He or she isresponsible for being thoroughlyprepared for hearings in order, at thevery least, to properly supervise his orher assistants. He or she should, andmust, be prepared to take charge of anyaspect of a hearing when required. Thisamendment is adopted as proposed.

Only one comment was receivedconcerning J 20.607. The commentervoiced support for the provisions of thissection, but noted that it conflicts withlimitations imposed by § 20.1304concerning a request for a change inrepresentation following certification ofan appeal and transfer of the appellaterecord to the BVA. A reference to thislimitation has been added and, with thisaddition, the proposed amendment isadopted.

Two comments were receivedregarding § 20.608. Both deal with therestriction in paragraph (b) on arepresentative's right to withdraw froma case after an appeal has been certifiedto the BVA for review.

One commenter felt that there shouldbe no restriction and expressedparticular concern about a situation inwhich there might be an antagonisticrelationship between a representativeand appellant or disagreement betweenthe representative and appellant on howto proceed in a particular case. VA feelsthat a limited restriction on the right of arepresentative to withdraw at theappellate level is justified.Unfortunately, there have been abusesin this area. For example, there havebeen cases in which representativeshave left appellants unrepresentedminutes before a hearing was to begin

because they had not taken the troubleto evaluate the case prior to the hearingor did not choose to continue with acase which they felt might not enhancetheir record of success. VA considers anundertaking to represent an appellant tobe a very serious matter. The proposedsection already provides thatwithdrawal will be permitted when goodcause is shown and that good causeincludes "factors which make thecontinuation of representationimpractical or impossible." Clearly, thetwo situations mentioned by thecommenter would fall into this category.

The second commenter noted thatthere could be situations in which arepresentative could be compelled torepresent an appellant whom he or shehad never agreed to represent, inasmuchas designations of representation can befiled by appellants without the prioragreement of the representative. Thiscommenter suggested that, if theproposal were adopted, it shouldcontain an exception for such cases.Concern was also expressed aboutplacing representatives in a situation inwhich they might be forced to continuerepresentation in situations wherecontinued representation might be inviolation of the "Code of ProfessionalResponsibility." In this regard, it wassuggested that "unethical" be added to"impractical" and "impossible" at theclose of the second sentence ofparagraph (b) and that representativesnot be required to explain how or whycontinued representation would beunethical. VA agrees that theseconcerns are valid. The paragraph hasbeen modified to provide thatpermission to withdraw is not requiredunless a representative has agreed to actin the case and the word "unethical" hasbeen added as suggested. Language hasalso been added to make it clear thatmotions to withdraw should not includeinformation which it would be unethicalfor the representative to reveal.

A list of examples of possible VAclaimants and appellants other thanveterans is given in several locationsthroughout these revisions, includingthis section. This list has been expandedto include fiduciaries appointed toreceive an individual's VA benefits onhis or her behalf. This revision has beenmade to provide additional information.It does not represent any change inexisting practices.

The citation of authority has beenexpanded to include 38 U.S.C. 7105(a).

With these modifications, theproposed amendment is adopted.

Three comments were receivedconcerning § 20.60D.

Paragraph (f) of this section statesthat fees charged by attorneys-at-law

and agents m proeeedinp before VAwill be presumed to be reasonable ifthey total no more thmn 20 percent ofany past-due benefits awarded. Onecommenter asserted that this provisionwas contrary to law, inasmuch as 36U.S.C. 58,4(d)(1) limited the 20-percenttest to contingent-fee cases, while areasonableness test applies to othertypes of fee arrangements. In addition,the commenter argued that thisprovision would induce representativesto tailor their fees to approximate 20percent even though they might be"grossly disproportionate" to the workrequired, that Congress meant the 20-percent figure to be a ceiling and not thenorm, and that the presumptiontransferred the burden of proof from therepresentative to the claimant/appellant. With regard to the latter,concern was expressed about anunrepresented individual meeting thisburden.

VA does not agree that this provisionis unlawful and finds no evidence that itis contrary to the intent of Congress. 38U.S.C. 5904(c)(2) provides, in essence,that the BVA is charged withdetermining what fees are reasonable.This presumption serves to announcethat the BVA considers fees meeting the20-percent test to be reasonable unlessthe contrary is shown. VA believes thatit may be construed from the provisionsof 38 U.S.C. 5904(d)(1) that it is the senseof the Congress that fees of 20 percentare not unreasonable. It is true that thispresumption serves to shift the burdenof proof, but VA does not feel that thistransfer is unwarranted. Fees of 20percent would be relatively modest inmost cases. Attorneys' fees in manytypes of civil actions, for example,typically run to a greater amount. Atleast as to contingent fees, fees of 25percent of past-due benefits haveapparently become the norm in SocialSecurity cases. (Department of Health &Human Services, Social SecurityAdministration, Office of Hearings andAppeals; "Report to Congress, AttorneyFees Under Title 1I of the Social SecurityAct" 2 (1988).) Further, most casesallowed by the BVA do not result inlarge awards of past-due benefits.

VA has no reason to believe thatabuse by representatives who wouldcharge "grossly disproportionate" feeswill arise except in unusual cases.Should there be any such abuse, thissection and 38 U.S.C. 5904(c)(2) providefor review by the BVA to protect theclaimant/appellant. As to unrepresentedindividuals, the BVA has not and willnot penalize legally unsophisticatedappellants--nor will it tolerate "grosslydisproportionate" fees, even though they

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may meet the 20-percent test. Obviously,if fees of 20-percent were grosslydisproportionate to the amount of workdone, the presumption ofreasonableness would be overcome.

The same commenter urged that thisregulation include a provision fornotifying appellants of their right to filea motion for review of fee agreementsunder paragraph (i), possibly byinclusion of notice in the form used todesignate attorneys and agents asrepresentatives (VA Form 2-22a) and bya requirement that it be included inprivately drawn designations of arepresentative which does not use theform. VA does not currently believe thatthe need for such notice is so strong asto justify the burden of imposing aregulatory duty of proving that suchnotice has been given to appellants byagents and attorneys who do not use theform mentioned.

The second commenter voiceddisagreement with the indication inparagraph (c)(1) that a conditionprecedent to the charging of fees byattorneys-at-law and agents is a finalBVA decision "with respect to the issue,or issues, involved." The commenterargues that the only criteria should bethat there was a prior decision, not thatthe exact issue or issues were decided inthat decision, and that this provision iscontrary to the intent of Congress. VAdoes not find that this objection is well-founded. It was clearly not the intent ofCongress that a BVA decision on anysubject in the case of a particularveteran would open the door to fees byattorneys-at-law and agents withrespect to every matter which mightever arise in the future. The statutoryrequirement that there be a finaldecision in the case makes little senseunless the intent is that the decision hasbeen on point. The remarks of theHonorable Alan Cranston, United StatesSenate, in discussing Public Law 100-687are instructive. These remarks includethe following:

Let me be clear-I do not believe that mostveterans with claims before the VA would bewell advised to seek the assistance of anattorney. Certainly, were I asked, my firstadvice to a veteran with such a claim wouldbe to contact a veterans' service officer. Butthe existence of the valuable, free resource ofrepresentation before the VA by veterans'service officers in claims adjudication is nota reason for precluding a veteran fromseeking to obtain the services of an attorneyat the end of the internal VA process if theveteran wishes to do so.

The compromise agreement before ustoday prohibits attorneys fees until after theBVA makes its first final decision, thuscontemplating that the current practice ofveterans being assisted by skilled veterans'service officers throughout the VA and initial

BVA administrative processes wouldcontinue to operate-exactly as it does now.

(134 Cong. Rec. S 16646 (daily ed. Oct.18, 1988).)

Essentially, the idea is that attorneysand agents will not become involved inclaims for particular benefits from VAon a fee basis until after the claim hasbeen denied at the VA field facility leveland, after an appeal, the BVA has hadan opportunity to rule on the merits ofthe particular claim-in short, until afterthe normal administrative procedureshave run their course. For example, thefact that there had been a recent BVAdecision on the issue of entitlement toservice connection for one disabilitywould permit a fee agreement withrespect to that issue (assuming that theother criteria were met), but it would notfurnish a basis for a fee agreement onanother entirely separate issue (e.g.,entitlement to an increased evaluationfor another disability) on which the BVAhad not yet ruled. It should be noted thatthe term "issue" in the context of thisregulation means the principal issue(e.g., entitlement to service connectionfor a particular disability). It is not theintent of this regulation to restrict feesfor services performed in conjunctionwith the disposition of the collateralissues which must be addressed in orderto reach a decision on the principalissue.

The same commenter felt that thewords "applicable Board of Veterans'Appeals decision" in paragraph (c)(2)are confusing and objected that the rightto obtain an attorney on a fee basis wasunfairly restricted if the intent was torefer back to paragraph (c)(1). (Whilethe comment is not clear in this regard,this objection is apparently on the samebasis as the objection to paragraph(c)(1).)

The intent was, indeed, to refer backto paragraph (c)(1). Paragraphs (c)(1)through (c)(3) constitute aninterconnected list of criteria whichmust be met. To remove any doubt,however, the language in paragraphs(c)[2) and (c)(3) has been amended toconform to the language in paragraph(c)(1). With respect to theappropriateness of the language, thecomments concerning paragraph (c)(1)apply.

Also with respect to paragraph (c)(2),this commenter argues that there shouldbe no requirement that the Notice ofDisagreement received on or afterNovember 18, 1988, must precede theBVA decision with respect to the issue,or Issues, involved. Essentially, thecommenter feels that the statute (38U.S.C. 5904(c)(1)), read together withsection 403 of Public Law 100-687, is

satisfied if there is a final BVA decisionand if there is a Notice of Disagreementfiled on or after November 18, 1988, eventhough the decision predated the Noticeof Disagreement. For example, thecommenter argues that if there is a finalBVA decision following a pre-November18, 1988, Notice of Disagreement denyinga benefit, the claim is reopened andagain denied at the agency of originaljurisdiction level, and a Notice ofDisagreement is filed after November 18,1988, on the reopened claim, thereshould be an immediate right to enterinto a fee agreement rather than anecessity to await the BVA decision onthe reopened claim.

VA has not found material in thelegislative history which shows that thisparticular point was specificallyconsidered in the drafting of Public Law100-687. However, VA is of the opinionthat the construction in this proposedamendment is the one which is the mostlogical. It appears that the intent withrespect to the effective date for theallowance of fee agreements was thatthere would be a clear line ofdemarcation centered on the date ofenactment of Public Law 100-687(November 18, 1988) with an orderlyprogression of subsequent events,culminating in a BVA decision, beforefee agreements are permitted.Independent analysts have alsoapparently arrived at the sameconclusion. (e.g., see Stichman, "TheVeterans' Judicial Review Act of 1988:Congress Introduces Courts andAttorneys to Veterans' Benefitsproceedings," 41 Ad. L. Rev. 365 at 387,388 (1989)).

Once the BVA denies an appeal, itsdecision is final and conclusive asidefrom the right to appeal to the UnitedStates Court of Veterans Appeals, oranother Federal court, under somecircumstances and a possible motion forreconsideration. (38 U.S.C. 7103(a))When an appeal is denied by the Board,it may not thereafter be reopened andallowed on the same factual basis, butonly on the basis of new and materialevidence. (38 U.S.C. 5108 and 7104(b))Thus, a reopened claim, even with aNotice of Disagreement filed on or afterNovember 18, 1988, has little legalrelationship to a prior denied appeal.The earlier appeal is, in essence, aseparate case. Inasmuch as 38 U.S.C.5904(c) bars payment of a fee for"services provided before the date onwhich the Board of Veterans' Appealsfirst makes a final decision in the case,"VA believes that fees are payable onlyfor service provided subsequent to afinal BVA decision following upon a

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Notice of Disagreement filed on or afterNovember 18, 1988.

Moreover, Congress contemplatedthat the operative BVA decision, for thepurposes of Public Law 100-687, wouldfollow rather than precede the Notice ofDisagreement. Regarding the effectivedate provisions, for example, SenatorCranston noted the following:

Given the fact that it currently takes on theaverage over 355 days from the issuance ofthe statement of the case-the step after thefiling of the notice of disagreement-to theentry of a final BVA decision, the new courtshould have sufficient time before itseffective date on September 1. 1989, in whichto become fully operational before it receivesits first significant number of cases.(134 Cong. Rec. S 16650 (daily ed, Oct. 18,1988))

Further, the judicial-review provisionsand the attorney-fee provisions wereenacted together, as an organic whole.The attorney-fee provisions were addedprimarily to assist veterans in retainingcounsel for assistance in appealing BVAdecisions to the United States Court ofVeterans Appeals. Senator Cranstonemphasized that veterans should beassisted by veterans service officersthroughout VA field facility and initialBVA processes, concluding that theattorney-fee provisions would enable aveteran, "once he or she has received aninitial BVA decision and has sought anattorney's assistance to appeal thatdecision, * * * to seek further BVAreview with the assistance of counselbefore going to court." (134 Cong. Rec. S16646 (daily ed. Oct. 18, 1988)) To theextent a veteran has filed a Notice ofDisagreement in a reopened claim, buthas not received a BVA decisionthereon, an appeal to the court would bepremature. Thus, the need for counselenvisioned by Congress (i.e., to assist inan appeal to the COVA) has not arisen.

In an analogous situation, Congressexpressed its desire to bar payment offees where counsel is not retainedwithin one year of the final BVAdecision. Senator Cranston explainedthe effect of this provision in the contextof stale appeals as follows:

This provision is not intended to limit aclaimant from changing attorneys once anappeals process has begun, but rather toaddress the possibility of a claimantreceiving a final BVA decision waiting anumber of years without any action, and thenretaining an attorney to request a reopeningand pursuit of the claim at the regional officelevel. In such a case, no fee could be paid tothe attorney until after a new final decision.(134 Cong. Rec. S 16647 (daily ed. Oct. 18,1988))

VA believes that the same analysismay be applied where there is adisjunction between a pre-Public Law

100-687 decision and a post-Public Law100-687 Notice of Disagreement. Thereis no compelling reason to allow thepayment of fees before a veteran hasexhausted administrative procedures ina reopened claim and, as SenatorCranston's remarks suggest, there isevery reason to bar the payment of feesin stale appeals.

Paragraph (b) of § 20.609 points outthat agents and attorneys-at-law mayreceive fees, but that otherrepresentatives may not. Thiscomnmenter also suggested thatparagraph (b) be amended to specifywhen agents and attorneys-at-law whoare also accredited representatives ofrecognized organizations may receivefees. Explanatory language has beenadded, as suggested. Only onerepresentative may be recognized at anygiven time in the prosecution of aparticular claim. (See § 20.601 and 38U.S.C. 7105(b)(2).) An attorney-at-law oragent could also be an accreditedrepresentative of a recognized serviceorganization. (See 38 CFR 14,628,"Recognition of organizations," and14.629 "Requirements for accreditationof representatives, agents, andattorneys.") Whether he or she maycharge fees for services performed in aparticular case will depend upon thecapacity in which he or she is acting atthe time. If the organization has-beendesignated as representative and he orshe is acting in his or her capacity as anaccredited representative of arecognized organization, it is theorganization which is the representativein the case, not the accreditedrepresentative of the organization.Recognized organizations may notreceive fees and the fact that theparticular accredited representative whois working on the case for theorganization may also happen to be anattorney-at-law or agent does not alterthat fact. If he or she has beenappropriately designated and is actingin his or her own capacity as anattorney-at-law or agent as thedesignated representative, then feesmay be charged if the other criteria arealso met. (Also see proposed § 20.603(b)concerning attorneys employed byrecognized organizations.)

The third commenter suggested thatthe list of factors to be considered indetermining whether fees charged byattorneys-at-law and agents arereasonable contained in paragraph (e)should include "the delay in payment"and "the contingent nature of therepresentation." VA assumes that thereference to "the contingent nature ofthe representation" is actually areference to the contingent nature ofpayment in contingent fee cases. On that

assumption, this part of the suggestionhas been adopted. The suggestionconcerning including delay in paymentas an element for consideration has notbeen adopted. Potential difficulty incollecting fees from clients exists inevery case. If the concern here is aboutthe fact that payment must await theresult in contingent fee cases, thatwould be part of the justification forhigher fees in contingent fee cases andis contemplated by the inclusion ofconsideration of whether the payment offees is contingent upon achieving afavorable result.

This commenter felt that paragraph(f), which provides that fees which totalno more than 20 percent of any past-duebenefits awarded will be presumed tobe reasonable, should be "clarified" toshow that fees over 20 percent wouldnot be presumed to be unreasonable.VA believes that it is obvious that thatwould not be a reasonable constructionof paragraph (f0 and that no furtherclarification is necessary. (See thediscussion concerning the firstcommenter's remarks regarding thisparagraph.)

This commenter argues that paragraph(i) should provide that motions for thereview of fee agreements should beruled on by "the Board," rather than bythe Chairman, citing the language in thesection of Public Law 100-687 which hasbeen codified as 38 U.S.C. 5904 andarguing that Board Members are in thebest position to judge the quality andquantity of an attorney's work on acase. This suggestion has not beenadopted.

Such motions are in fact reviewableby any of the Members of the Boardwhen the motion is properly beforethem. (See § 20.102(d).) VA regrets anyconfusion which may have been causedin this regard by the typographical errorwhich resulted in an erroneousreference to § 20.609(g), rather than§ 20.609(i), in § 20.102(d).

Secondly, this comment seems to bebased on the erroneous assumption thatthe Chairman is not a Member of theBoard with decision-making authority atleast equal to that of any other Member.Clearly, that is not the case. (See, forexample, 38 U.S.C. 7101(b).)

Next, from an administrativestandpoint, choosing which Members ofthe Board will dispose of motions is oneof the Chairman's duties. Sections of theBoard dispose of motions which arebefore them in connection withproceeding which have been specificallyassigned to them by the Chairman. (See38 US.C. 7102(c).)

Finally, VA agrees that Members ofBoard Sections will be in a good

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position to rule on motions concerningfee agreements in matters in which theyhave been personally involved. It iscontemplated that such Members willrule on motions concerning feeagreements which arise during thecourse of appeals or other proceedingswhich have been assigned to them inaccordance with 38 U.S.C. 7102(c). (As aresult of these comments, material hasbeen added to § 20.102 to make thisclearer.) However, motions concerningthe reasonableness of fee agreements(as well as other motions) do not alwaysarise in the context of appeals beforeSections of the Board for disposition.Essentially, 38 U.S.C. 5904 charges theBVA with monitoring thereasonableness of fee agreementsconcerning cases brought throughout theDepartment regardless of whether theyare in the context of an appeal. Forexample, an attorney-at-law may behired to represent a claimant at the fieldlevel in a reopened claim which followsa recent BVA decision. Therepresentative may be successful in theprosecution of the reopened claim andthe case will never come before the BVAon appeal. Nevertheless the claimantcould file a motion with the BVA forreview of the reasonableness of theattorney's fees. Along the same lines, 38U.S.C. 5904(c)(2) and these rules providefor filing a copy of any fee agreementwith the BVA and that the Board mayreview agreements for reasonablenesson its own motion. It seems clear thatthe BVA has the responsibility underthis statute to conduct at least apreliminary screening of agreementsfiled with it to guard against the abuseof veterans and their survivors anddependents. Some centralized filing andinitial review process at the Board isdesirable both from the standpoint ofreasonable administrative efficiencyand from the standpoint of uniformity ofapproach.

A list of examples of possible VAclaimants and appellants other thanveterans is given in several locationsthroughout these revisions, includingthis section. This list has been expandedto include fiduciaries appointed toreceive an individual's VA benefits onhis or her behalf. This revision has beenmade to provide additional information.It does not represent any change inexisting practices.

References to "agents" have beenremoved from paragraph (h), inasmuchas the provisions of 38 U.S.C. 5904[d)apply only to attorneys-at-law.

VA assumed when drafting theseamendments that parties would submitsuch evidence as they might wish to theBVA in conjunction with a motion for

review of a fee agreement. Material hasbeen added to paragraph (i) to make itclear that this is permitted and also tonote that the ruling on the motion will bein the form of an order, as noted in 38U.S.C. 5904(c)(2). Other editorialchanges have been made to theparagraph to make it clear that the BVAneed not file its own motions with itself.

The phrase "Department of VeteransAffairs personnel" has been changed toread "Department of Veterans Affairsfield personnel" in the section headingand in paragraph (a) as an editorialchange in the interest of clarity.

With the modifications described inthe preceding paragraphs, 1 20.609 isadopted.

One comment was receivedconcerning 1 20.610. This comment, likethe commenter's remarks pertaining to§ 20.609(i), suggests that notice of theavailability of review of thereasonableness of representatives'expenses be included in VA Form 2-22aand any other designation ofrepresentation by an attorney-at-law oragent. The same response given in thediscussion concerning § 20.609(i)applies.

This commenter also suggested thatthe BVA take into consideration, whenreviewing motions pertaining to thereasonableness of representatives'expenses, whether expenses have beenincurred for the services of expertswhich should have been provided by therepresentative rather than the expert.Normally, experts are used to provideopinions on technical matters, ratherthan to provide normal representationalskills. Based upon past experience, VAdoes not currently perceive a significantpotential for abuse in this areawarranting regulation. VA notes that thelist of criteria at the end of paragraph (d)is not intended to be all inclusive andthat such a problem could be addressedunder the regulation-as proposed-should abuse occur. If future experienceshould show that it is warranted,appropriate specific language can beadded at a later time.

Finally, this commenter suggested thatwhether there was prior authorization ofan expense by the claimant or appellantshould be added to the list of criteria setout in paragraph (d) used to judge thereasonableness of expenses. In thisregard, the commenter expressedconcern about claimants not beingaware of the cost of litigation. Thisregulation already contemplates thatthere will be an agreement between theparties as to whether a representativewill be reimbursed for expenses. (Seeparagraph (b).) While VA recognizesand appreciates the concerns voiced by

this commenter, it is reluctant to imposewhat would in effect be a requirementfor the approval of each individuallitigation expense in advance in additionto a general agreement for expensereimbursement. Such a requirementwould be very burdensome to bothclaimantsf appellants andrepresentatives. Consideration will begiven to a requirement for advanceapproval with respect to large expenses.perhaps those exceeding a particularamount, in the future if experienceindicates a need for further regulatorycontrol. At this time, however, thissuggestion has not been adopted.

A list of examples of possible VAclaimants and appellants other thanveterans is given in several locationsthroughout these revisions, includingthis section. This list has been expandedto include fiduciaries appointed toreceive an individual's VA benefits onhis or her behalf. This revision has beenmade to provide additional information.It does not represent any change inexisting practices.

VA assumed when drafting theseamendments that parties would submitsuch evidence as they might wish to theBVA in conjunction with a motion forreview of a representative's bill forexpenses. Material has been added toparagraph (d) to make it clear that thisis permitted and also to note that theruling on the motion will be in the formof an order.

The phrase "Department of VeteransAffairs personnel" has been changed toread "Department of Veterans Affairsfield personnel" in the section headingand in paragraph (a) as an editorialchange in the interest of clarity.

With the modifications described inthe preceding paragraphs, § 20.610 isadopted.

One commenter objected to theprovision in § 20.611 allowing arepresentative to continuerepresentation in a case on behalf ofsurvivors for the first year following thedeath of a claimant or appellant-alleging that the "lengthy period ofrecognition would constitute anunwarranted invasion of the privacyrights of any survivor(s)." It wassuggested that the period be reduced to30 or 60 days or that there should be arequirement incorporated in theregulation that any survivor who files aclaim must be placed on notice of the"power-of-attorney" in effect andoffered the opportunity to rescind, limit,or change it.

The suggested changes have not beenadopted. A similar provision has been ineffect for many years, except that thecurrent regulation provides for

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continuation of representation for a"reasonable" period. (See 38 CFR19.155(c).) This amendment substitutes aone year period (or a period sufficient tocomplete any appeal pending at the timeof the death of the claimant/appellant)for the rather vague standard of "areasonable period." As is very clearfrom the proposed amendment, thisprovision does not preclude the survivorfrom changing representatives orterminating representation during theapplicable period if he or she wishes.Rather, it serves the function of relievingdistraught survivors from the burden ofbeing forced to deal with such mattersduring the initial year following thedeath of an appellant or claimant andallows representatives to protect theinterests of such survivors during thiscritical period. The amendment isadopted as proposed.

Four comments were receivedconcerning § 20.700.

One commenter recommended thatsworn testimony at a personal hearingbe recognized as "primary" evidenceand that the term "evidence" be definedto include testimony. The commenterargues that this regulation shouldprovide that the BVA must stateaffirmative reasons for rejecting anytestimony and that it should providethat the BVA may not "find a fact to becontrary to the veteran's testimonysolely by reason that no reference tosuch fact exists or is contained in theservice records."

That testimony by a veteran or anyother witness is evidence is really not amatter which is open to debate. VA, ofcourse, recognizes that it is. (See, forexample, proposed § 19.31.) This point isso well settled that VA sees no need toinclude it in a definition in these rules ofpractice. The other suggestions from thiscommenter, described previously,pertain to the deliberative and decision-preparation process of Members of theBoard. The weight to be accorded to anyparticular item of evidence, whethertestimony or documentary evidence, is amatter for the triers of fact-in this case,Members of the Board-to determine.Many elements go into determiningwhether a witness is credible, includinghis or her demeanor while givingtestimony. Little would be gained by aregulatory requirement that the Boardspecifically state that it did not find aparticular witness to be trustworthy.

This commenter asked that paragraph(c) be revised to require that reasons forexcluding evidence at hearings on thegrounds of lack of relevancy ormateriality or because of its repetitiousnature be included in the final writtendecision by the BVA. The place forargument and discussion of why

evidence should or should not beexcluded at a hearing is at the hearing.The reasons for a ruling on theadmissibility of evidence will bearticulated at that time. In the event thatappeal is taken to a higher tribunal onthe question of whether evidence waswrongfully excluded, the hearingtranscript will be available.

This commenter objected to theprovisions in paragraph (d) limitinginformal hearing presentations to 30minutes, asserting that this was not inthe interest of the appellant. Thesepresentations on audio cassette tapesare limited to 30 minutes because thetapes are transcribed by VA at no costto the appellant or representative as aservice to the appellant andrepresentative. Government funds forthis service are limited. The use of thisprocedure is optional. Appellants andtheir representatives may presentrecorded or written presentations of anylength they wish at their own expense.VA also notes that the 30 minutesallowed is 30 minutes of actualdictation. Off-line time to composecomments is not included. Thus 30minutes of actual dictation on tape mayrepresent several hours of work. Thirtyminutes of dictation tape translates, onthe average, into approximately elevenpages of typed material, single spaced.In a 1987 sample survey, the averageinformal hearing presentation was justunder two and one-half pages in lengthand the longest in the sample surveywas five and one-half pages in length.

The other three commentersexpressed concern about the provisionsof this amendment which limit hearingssolely for oral argument unless goodcause for such a hearing is shown. Somepointed out that give-and-takediscussions with Members of the Boardare often very valuable in defining theissues. One commenter expressedconcern about obtaining hearings incases in which an appellant was unableto attend personally due to age orinfirmities.

VA does not believe that, in mostcases, the benefit to be gained justifiesthe time and expense necessary toconduct such hearings. In most cases,there is little which can be presented atoral argument which can not bepresented equally well in briefs, Theproposed regulation provides forexceptions in unusual cases. Theamendment is adopted as proposed.

No comments, suggestions, orobjections were received regarding theamendment of § 20.701. This amendmentis adopted as proposed.

Two comments were receivedconcerning § 20.702.

One commenter pointed out the errorin the spelling of the word "appear" inthe paragraph heading of paragraph (d).This was a typesetting error which hasbeen corrected. This commenter alsosuggested that the sentence "Ordinarily,however, hearings will not be postponedmore than 30 days" be added followingthe sixth sentence of paragraph (d). Thesuggested language duplicates languagefound in paragraph (c)(2) and VA agreesthat the suggested addition isappropriate. This suggestion has beenadopted.

The second commenter pointed out, inessence, that paragraph (d) has not beenconstructed to recognize hearings inwhich only representatives appear topresent oral argument. This was anoversight which has been corrected.

With these revisions, the amendmentis adopted.

One commenter alleged that thediscussion of an individual's right to aTravel Board hearing in § 20.703 wasconfusing and should be furtherclarified. Unfortunately, the commenterdid not indicate why or how thediscussion was considered to beconfusing. Inasmuch as no explanationwas given and inasmuch as the materialin the amendment is relatively simpleand straightforward, no change has beenmade.

A second commenter suggested that§ 20.703 should be altered to providethat Travel Board hearings will not begranted concerning reconsideration of aprior BVA decision unless a motion forreconsideration has been granted. VAagrees that this is appropriate and thissuggestion has been adopted.

This proposed section failed tomention that Travel Board hearings areavailable in an appeal of a claimreopened after a prior BVA decision.This oversight has been corrected.

With the changes described, theamendment is adopted.

Two comments were receivedconcerning § 20.704.

Paragraph (c) of § 20.704 provides, inpart, that requests for a change in aTravel Board hearing date may be madeat any time prior to the scheduled dateof the hearing if good cause is shownand that if good cause is not shown, theappellant and representative will benotified and given an opportunity toappear at the hearing previouslyscheduled. One commenter suggested, inessence, that this paragraph be modifiedto account for the situation in which therequest for a change in the hearing dateis received so late that notice of thedenial of the request cannot be givenuntil after the originally scheduledhearing date has passed. Suggested

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language was proposed. The suggestedlanguage (which provided that if theoriginal hearing date had already passedby the time that notice of the denial ofthe request for a new hearing date couldbe given, the request for the hearingwould be deemed to have beenwithdrawn) has not been adopted. VAagrees, however, that a potentialproblem with the proposed amendmenthas been identified by this commenter.Obviously, a request for a new hearingdate must be given far enough inadvance of the originally scheduledhearing date for the agency of originaljurisdiction to act on the request. Thisproblem is solved in the section dealingwith hearings other than Travel Boardhearings by requiring that a request for anew hearing date must be submitted notlater than two weeks prior to thescheduled hearing date. (See§ 20.702(c).) The § 20.704 amendmenthas been revised to include a similarrequirement.

The second commenter pointed out, inessence, that paragraph (d) has not beenconstructed to recognize hearings inwhich only representatives appear topresent oral argument. This was anoversight which has been corrected.

For reasons noted in the followingparagraph, the substance of the secondsentence of proposed § 20.705(b) hasbeen moved to paragraph (a) of § 20.704.With this correction and the revisionsdescribed in the previous twoparagraphs, the 1 20.704 amendment isadopted.

One comment was receivedconcerning § 20.705. The commentersuggested that the word "or" be movedfrom proposed paragraph (a) (paragraph(a)(1) as adopted) to the end of proposedparagraph (b) (paragraph (a)(2) asadopted) and that the second sentenceof proposed paragraph (b) be placed inparentheses. VA agrees that thestructure of this amendment could beimproved, but is taking an alternativeapproach. The word "or" has beenmoved as suggested, but the substanceof the second sentence of proposedparagraph (b) has been moved toI 20.704(a). The substance of theremainder of § 20.705 has not beenchanged, but it has been reorganized forgreater clarity. With these changes,§ 20.705 is adopted.

One comment was receivedconcerning I 20.706. This commenterexpressed concern about the referenceto the presiding Member of a hearingpanel in this section. and in severalothers, feeling that this was notsufficient to encompass the HearingOfficer program of the Veterans BenefitsAdministration. No specific changeshave been made to mention this

program in these amendments. Theproposed amendment is notincompatible with the program. TheHearing Officer would be a panel of oneand would, of course, be the presidingMember of that panel This amendmentis adopted as proposed.

No comments, suggestions. orobjections were received regarding theamendment of § 20.707. In response to acomment, post-traumatic stress disorderwas added to the list of BVA BoardMember specialties in § 19.11(c) to betaken into consideration when Sectionexpansion is required because an issuepresented to a traveling Section of theBVA involves reconsideration of a priorBVA decision. Post-traumatic stressdisorder has been added to a similar listin this section for consistency.

An editorial revision has been madeto change the word "panel" to "section"in the text of paragraph (b) when thereference is to a reconsideration sectionor to a traveling section. This changehas been made so that the amendmentwill parallel the language which appearsin 38 U.S.C. 7103(b) and 7110.

The proposed amendment is adopted.with these revisions.

The individual who commented on§ 20.706 offered the same remarksconcerning § 20.708. For the reasonsnoted in the discussion concerning§ 20.706, the commenter's suggestion hasnot been adopted and the amendment isadopted as proposed.

Two comments were receivedpertaining to 1 20.709.

This regulation provides for theprocedures to be followed when therecord is to be left open for a reasonableperiod of time following a personalhearing in order to allow an appellantand his or her representative to submitadditional evidence. One commentersuggested that the amendment berevised to provide clarification of thenature of such evidence, to provideinformation concerning whether thedevelopment of the evidence is the soleresponsibility of the appellant orrepresentative, and to distinguishbetween evidence requested by the BVAas opposed to evidence volunteered bythe appellant This suggestion has notbeen adopted.

It is neither necessary nor desirable todefine all of the types of potentialevidence which might come to lightduring the course of a hearing. Anyattempt at such a definition would likelybe incomplete, inasmuch as it isvirtually impossible to guess at thenature of all such evidence in advance.and little (if anything) would be gainedby such an attempt. This is a matter bestaddressed on a case-by-case basis.

This regulation was not meant to beall inclusive with respect to post-hearingevidence development. It merelyprovides an opportunity for the record tobe left open as a service to appellantsand representatives so that they maysubmit additional evidence after thehearing if they indicate a desire to do soduring the hearing. The BVA does notforce appellants or representatives tosubmit evidence against their will, evenwhen it is obvious that the evidencewould help their cause. If the BoardMembers participating in the hearingfeel that additional evidence is required.they may undertake the developmentadministratively or through remand.That, however, is beyond the scope ofthis section governing practice byappellants and representatives beforethe Board.

The individual who commented on§ 20.706 offered the same remarksconcerning § 20.709. For the reasonsnoted in the discussion concerning§ 20.706, the commenter's suggestion hasnot been adopted. The amendment isadopted as proposed.

No comments, suggestions, orobjections were received regarding theamendment of J 20.710. This amendmentis adopted as proposed.

Two comments were receivedregarding § 20.711.

The first commenter recommendedthat additional information be includedas to who may be subpoenaed, notingthat the regulation specifies that VAadjudication personnel are exempt butthat the exemption did not appear toextend to personnel of the Departmentof Veterans Affairs' Veterans HealthAdministration. and that the amendmentdoes not discuss "hostile" witnesses. Nochange has been made as a result ofthese comments. Essentially. anywitness may be subpoenaed-providedthat the requirements of the regulationconcerning the need for a subpoena aremet. In addition, no particularinformation concerning "hostile"witnesses is necessary. Obviously, somelack of voluntary cooperation is implicitin the need for a subpoena.

The second commenter complainedbecause this amendment does not allowappeal of rulings on a motion to quash asubpoena. citing the provisions of 38U.S.C. 7104 which (together with theprovisions of 38 U.S.C. 511(a)) providethat all questions of law and factnecessary to a decision by the Secretaryunder a law that affects the provision ofbenefits by the Secretary to veterans orthe dependents or survivors of veteransare subject to one review on appeal. VAagrees that this is a valid criticism. Therestriction complained of, which

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appeared in proposed paragraph (f).arose out of concern that appeals wouldbe endlessly delayed due to appeals ofinterlocutory matters. This concern canalso be addressed by providing that thevarious subpoena related motions areappealable, but that they are not subjectto interlocutory appeals. Paragraphs (e)and (h) have been revised to take thisless restrictive approach.

The second commenter also arguedthat the failure of this section to providefor deposing witnesses and itsrestriction of the issuance of subpoenasto those cases where the necessaryevidence cannot be obtained in anyother reasonable way are in violation ofthe provisions of 38 U.S.C. 5711. For thereasons set out below, VA does notagree and no modifications have beenmade as a result of this criticism.

VA agrees that 38 U.S.C. 5711 is broadenough to support a regulationpermitting formal discovery proceedingsand broader subpoena power, but theauthority of the Secretary (and those towhom he or she chooses to delegate thatauthority) under this statute isdiscretionary. The statute conferssubpoena power, but it does not compelthe exercise of that power. The power toissue subpoenas has existed for anumber of years, but its exercise hasbeen limited. The provisions of thissection are in conformance with existingprocedures and are compatible with theauthority which the Secretary hasdelegated to the Chairman of the BVAand the heads of regional offices andcenters. (See 38 CFR .1.)

Some erosion of past simplicity of VAadjudication and appeal procedures isinevitable with the growing complexityof veterans' law, the involvement ofattomeyst-law in the adjudication andappeal processes, and the advent ofjudicial review of decisions of the BVA.VA recognizes the growing complexityof veterans' law and is willing toexercise more subpoena power than hasbeen exercised in the past, but believesthat this inherently adversarial processis best limited to those cases where noother reasonable approach will work.VA is also of the opinion that thecomplexity and adversarial nature offormal discovery proceedings areincompatible with the relativelyinformal VA adjudication and appealprocess. Accordingly, such procedureswill not be implemented at this time.

A comment concerning 1 20.712 (infra)brought to light the absence of anyinstructions concerning the payment ofwitness fees in conjunction with theservice of a subpoena. Materialconcerning this subject has been added.

With the revisions described,proposed 5 20.711 is adopted.

One commenter urged that 1 20.712include clarification with regard to "howthe appellant would Incur' expensesother than for reproduction costs" andinformation on what, if any,reimbursement witnesses may claim andfrom whom.

In view of this comment, the sectionheading has been modified to moreaccurately reflect its intended scope.The purpose of this section is to alertappellants, representatives, andwitnesses that VA cannot reimbursethem for their expenses. The potentialexpenses of an appellant in conjunctionwith a hearing are many and varied.(Various travel and lodging expensescome immediately to mind as examples.)The nature and extent of expenseswhich an appeflant may be willing toincur in conjunction with a hearing arereally decisions which he or she mustmake in consultation with his or herrepresentative. Apart from theavailability of review forreasonableness of expenses charged toan appellant by a representative (see§ 20.610), no need for regulation in thisarea is currently perceived. Thereimbursement of witnesses is also amatter to be privately determinedbetween the witness and the appellantor representative who requests his orher appearance, except that by law (38U.S.C. 5711,3 CFR 2.1(c)) witnesseswho are subpoenaed are entitled to thesame fees and mileage expenses as arepaid witnesses in the district courts ofthe United States. This comment hasbrought to light the need for anadditional paragraph in I 20.711pertaining to fees. This paragraph hasbeen added. Except for the modificationto the section heading. however, § 20.712is adopted as proposed.

One comment was received pertainingto § 20.713. This commenter pointed outthat there were typographical errors inparagraph (b), in that references to§ 20.702(c)Wi and (c)(ii) should be to§ 20.702(c}{L) and (c)(2). Thesetypographical errors have beencorrected. Editorial changes have alsobeen made to clarify paragraph (a). Asoriginally proposed, it suggested thatnotices of hearings in simultaneouslycontested claims would always be givenby the BVA itself. That was, of course,not accurate. With these corrections, theproposed amendment is adopted.

Two comments were receivedregarding § 20.714.

The first commenter suggested, inessence, that what is "good cause" forthe preparation of a written transcriptshould be clarified. No suggestedgrounds were furnished by thecommenter. This suggestion has'notbeen adopted. The BVA has already

provided for the automatic transcriptionof hearings in those situations where atranscript is normally required. (Seeparagraphs (a)(21 throgh (a)(5) of thesection.) The provision that a transcriptwill also be prepared when good causeis shown is provided to allow forunanticipated circumstances. This is amatter best determined on a case-by-case basis.

This commenter also suggested thatprovision be made for the automaticpreparation of hearing transcripts whenthe hearing panel consists of fewer thanthree Members of the BVA. Such arequirement is not necessary. The audiotape recordings of hearings conductedby traveling Sections of the Board or bythe BVA in Washington, DC, areavailable for review by any additionalBoard Members who may be assigned tothe review of the case after a hearinghas been conducted. Proposed§ 20.714(a)(41(iii). regarding thepreparation of hearing transcripts inhearings by traveling Sections of theBoard consisting of fewer than threeMembers of the Board. has beenwithdrawn.

The second conmmenter asked that"good cause" in paragraph (a)(1) bedefined to specifically include situationsin which the appellant or arepresentative wishes to examine atranscript in order to assess whether toappeal to the United States Court ofVeterans Appeals. This request has notbeen granted. There may well be casesin which this would furnish good causefor the preparation of a writtentranscript. but defining good cause insuch a manner as to result in theautomatic preparation of a writtentranscript on this basis is not warranted.Appellants and their representativeswill normally have been present at BVAhearings and are well aware of whattranspired at the hearing. Further,hearing tape recordings are available tothem for review upon requesLConvenience alone is not an adequatebasis for the considerable expenditureof government funds necessary toproduce a written transcript.

Editorial changes have been made inparagraph (c.

This proposed amendment is adoptedwith the revisions noted.

No comments, suggestions, orobjections were received regarding theamendment of § 20.715. This amendmentis adopted as proposed, with theaddition of minor editorial changes.

The individual who commented on§ 20.706 offered the same remarksconcerning § 20.71& For the reasonsnoted in the discussion concerning§ 20.706, the commenter's suggestion has

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not been adopted and the amendment isadopted as proposed, with minoreditorial changes.

Two comments were receivedconcerning § 20.717.

The first commenter asked that loss ofhearing tapes and transcripts be definedto include instances where the tape isgenerally unintelligible and instanceswhere a written transcript containssubstantial errors in transcription. Thesesuggestions have not been adopted. Theproposed amendment alreadycontemplates unintelligible recordings.For example, factors to be considered indetermining whether a new hearing willbe granted include "the extent of theloss of the record in those cases whereonly a portion of a hearing tape isunintelligible * * *." (See paragraph(d).) The remedy for correcting errors intranscription is a motion for thecorrection of the transcript. (See1 20.716.)

This commenter also suggested thatprovision be made for reimbursingappellants and representatives forexpenses which they might incur inattending a new hearing which isrequired because of loss of the record ofa prior hearing due to mishandling orloss of a tape recording or transcript of ahearing by VA. VA is unaware of anylegal authority for such reimbursementand the commenter offered none. Thiscomment has not been adopted.

The second commenter is theindividual who commented on § 20.706.This individual offered the sameremarks concerning § 20.717. For thereasons noted in the discussionconcerning § 20.706, the commenter'ssuggestion has not been adopted and theamendment is adopted as proposed.

One comment was receivedconcerning § 20.800. The commentpertains to the limitations set out in§ 20.1304 which are merely cross-referenced in § 20.800. This objectionwill be addressed in the discussion ofthe comments concerning § 20.1304.Section 20.800 is adopted as proposed.

No comments, suggestions, orobjections were received regarding theamendment of § 20.900. This amendmentis adopted as proposed.

One comment was received regarding§ 120.901 through 20.903. The commenterobjected because these regulations donot refer to authority included in PublicLaw 100-687 for VA field facilities toobtain independent medical expertopinions. Regulations concerningobtaining opinions in the field arebeyond the scope of these amendments,which pertain to practice before theBoard of Veterans' Appeals. VA'sVeterans Benefits Administration hasalready issued a final regulation

concerning obtaining independentmedical opinions at the field level (55 FR18601 dated May 3, 1990). Sections20.901 through 20.903 are adopted asproposed.

The General Counsel of theDepartment of Veterans Affairs issued aPrecedent Opinion on May 17, 1990,which had the effect of invalidating the"administrative allowance" proceduresof the BVA both in its current Rules ofPractice and in these proposedregulations. (See O.G.C. PrecedentOpinion 11-90, 55 FR 27750 dated July 5,1990.) Such opinions are binding uponthe BVA. (See 38 U.S.C. 7104(c).)Accordingly, all references to thoseprocedures have been withdrawn fromthese proposed amendments. Thematerial withdrawn includes proposed§ 20.904.

No comments, suggestions, orobjections were received regardingproposed § 20.905. Due to thewithdrawal of § 20.904, proposed§ 20.905 has been redesignated as§ 20.904. The proposed amendment, asredesignated, is adopted.

No comments, suggestions, orobjections were received regarding theamendments in proposed § § 20.1000through 20.1002. The provisionsconcerning reconsideration of BVAdecisions that were designated in theproposal as § § 20.1000(d) and 20.1002are withdrawn. This is necessary as ithas been determined, after furtherconsideration, that such provisions ofthe proposal are, in some respects,inconsistent with the statutoryprovisions contained in 38 U.S.C. 7103.Instead, VA is publishing additionalprovisions concerning reconsideration ofBVA decisions as part of a proposal in acompanion document in this issue of theFederal Register. The remainder of§ 20.1000 is adopted as proposed.

A list of examples of possible VAclaimants and appellants other thanveterans is given in several locationsthroughout these revisions, including§ 20.1001(a). This list has beenexpanded to include fiduciariesappointed to receive an individual's VAbenefits on his or her behalf. Thisrevision has been made to provideadditional information. It does notrepresent any change in existingpractices.

Section 20.1001 is adopted asproposed with this revision and with theaddition of the words "or evidence" atthe end of the second sentence ofparagraph (c)(2) to make it clear thatadditional evidence may now besubmitted once a motion forreconsideration has been granted.

Section 20.1002 is reserved.

Two comments were submittedregarding § 20.1003. These comments aresimilar to the comments offered withrespect to proposed provisions in§ 20.700 which restrict hearings solelyfor oral argument by a representative.The response to those commentsapplies. VA does agree, however, thatthe latitude permitted in this area innonreconsideration hearings should alsobe permitted in the case ofreconsideration hearings. Accordingly,modifications have been made to makethis section compatible with theprovisions of § 20.700(b). With theserevisions, the amendment is adopted.

The provisions concerning finality ofBVA decisions that were designated inthe proposal as §§ 20.1100 and 20.1101are withdrawn. This is necessary as ithas been determined, after furtherconsideration, that such provisions ofthe proposal are, in some respects,inconsistent with the statutoryprovisions contained in 38 U.S.C. 7103.Instead, VA is publishing revisedprovisions dealing with this topic in twoseparate formats. First, language merelyinterpreting existing statutory provisionsis set forth in § 20.1100 as part of thisfinal rule. (Its provisions constituteinterpretative rules and, as such, areexempt from the notice and commentprovisions of 5 U.S.C. 553.) Second,additional provisions concerning thistopic are set forth as part of a proposalin a companion notice of proposedrulemaking in this issue of the Federal

'Register.Section 20.1101 is reserved.No comments, suggestions, or

objections were received regarding theamendments to § § 20.1102 through20.1106, 20.1200, 20.1201, and 20.1300through 1302. These amendments areadopted as proposed, with minoreditorial changes to § 20.1300 and theeditorial revisions to § § 20.1105 and20.1301 described in the followingparagraphs.

As proposed, the first sentence of§ 20.1105 read as follows: "When aclaimant requests that a claim bereopened after an appellate decision hasbeen promulgated and submits evidencein support thereof, a determination as towhether such evidence is new andmaterial must be made and, if it is, as towhether it provides a new factual basisfor allowing the claim." The requirementthat a "new factual basis" beestablished was carried forward fromcurrent 38 CFR 19.194 which was, inturn, based on language contained inwhat is now 38 U.S.C. 7104(b) whichprovides that a claim may not again beconsidered "on the same factual basis"after it has been disallowed by the BVA.

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While that statutory language stillremains, revisions to 3 U.S.C. 7104(b)made by the Veterans' Judicial ReviewAct (Pub. L 100-687) provide anexception in the case of claims reopenedunder what is now 38 U.S.C. 5106, a newsection added by the same act as 38U.S.C. 3008. Inasmuch as 520.1105applies to reopened claims, the words"new factuar' have been withdrawn tomake the first sentence of the sectionconsistent with the new statutoryprovisions.

Paragraph (b) of § 20.1301 includes anexample of a BVA decision locatornumber. The form of the locatornumbers has recently changed due tothe archiving of BVA decisions incomputer records rather than onmicrofilm. Material indicating that theformat of locator numbers has changedand an example of the new type oflocator number have been added to theproposed amendment, inasmuch as themost recent EVA decisions have thenew type of locator number. Materialhas also been added to note that thecopies of BVA Index 1--0-1 which areavailable for public review at the BVAin Washington. DC, are located in theEVA's Research Center. (Of course,EVA decisions are not made availableto the public in a form permitting theidentification of individuals.)

Two comments were receivedregarding 1 20.1303.

One comment was that "it issuggested that the term'nonprecedential' be more clearlydefined and the relationship to decisionsof the Court of Veterans Appeals." (sic)The meaning of the word"nonprecedential" (which appears in thesection heading) is fully explained In thetext of the section and there is littlewhich would be useful which could beadded. Nonprecedential has its usualmeaning. That is, as has been VA'sposition for many years, a EVA decisionin one case is not binding in another.This amendment, of course, applies onlyto EVA decisions and has no bearing ondecisions by the United States Court ofVeterans Appeals.

The second commenter objected tothe removal of the first sentence of theRule of Practice upon which thisamendment was based (currentJ 19.197). That sentence read as follows:."The Board will strive for consistency inissuing its decisions." The commenterargued that removing the consistencyprovision was contrary to "due process'-and Public Law 100-7.

VA perceives no violation of either"due process" or of Public Law 100-687through the removal of the sentence inquestion and the commenter offered noexplanation of why it was thought that

this was the case. The removal of thesentence was actually a matter ofeditorial judgment and did not representany change in policy. In view of theconcern expressed, however, similarlanguage has been added.

The second commenter also arguedthat the Board should be attempting toachieve more consistent opinions,especially in light of the creation of theUnited States Court of VeteransAppeals, by using EVA decisions asprecedential guides. This suggestion hasnot been adopted.

Several factors are behind the long-standing rule that EVA decisions are notprecedential in nature. The majority ofdecisions by the BVA turn on uniquefact situations. For example, the manyfacts which establish a particular degreeof disability in one individual are almostnever the same as in the case of anotherindividual. Another, and perhaps themost important, factor is thatproceedings before the EVA are ex partein natu'e. Questions of fairness wouldarise by, in effect, making a BVAdecision precedential when theDepartment has no opportunity topresent and defend its position in theproceeding. Further, VA may not appeala EVA decision to the United StatesCourt of Veterans Appeals. (38 U.S.C.7152(a)). In addition to these historical,and still valid, considerations,uniformity will be achieved onimportant questions through precedentdecisions of the United States Court ofVeterans Appeals.

With the addition previouslydescribed, the amendment is adopted.

Four comments were receivedregarding I 20.1304.

This proposed section was essentiallya duplicate of a proposed amendment of38 CFR 19.174 (b) through (e) which waspublished for public comment on July 6,1989 (54 FR 28445). The final version ofthat regulation was published on May15, 1990. (55 FR 20144). Several changesarising out of comments received wereincorporated into the final version of 36CFR 19.174.

One of the four commenters onproposed 1 20.1304 incorporated its priorcomments concerning the amendment of38 CFR 19.174 by reference andsubmitted an affidavit in support ofthose comments. Two of the other threecommenters offered objections similarto those raised concerning theamendment of 38 CFR 19.174. Thecomments concerning the amendment of38 CFR 19.174 were exhaustivelydiscussed in the Federal Register at thetime that the final version of thatregulation was adopted. These threecommenters are referred to thatdiscussion. As noted in that discussion,

several changes were made. Theseincluded extending the time limit forsubmitting a request for a change inrepresentation, submitting a request fora personal hearing and for submittingadditional evidence followingcertification of an appeal to the BVAfrom 60 to 90 days, or until the date theappellate decision in the case ispromulgated by the EVA, whichevercomes first. Section 20.1304 has beenmodified to conform to the final versionof 38 CFR 19.174.

The fourth commenter pointed out,correctly, that the reference to§ 19.112(b) should be to § 19.37(b). Thiserror has been corrected.

A list of examples of possible VAclaimants and appellants other thanveterans is given in several locationsthroughout these revisions, includingthis section. This list has been expandedto include fiduciaries appointed toreceive an individual's VA benefits onhis or her behalf. This revision has beenmade to provide additional informatiomnIt does not represent any change inexisting practices.

Clarifying material has been added tothe first sentence of paragraph (d) topoint out that the only evidenceprovided to all contesting claimants in acontested claim is evidence which ispertinent to the matter contested.

With the revisions noted, thisamendment is adopted.

Proposed I 20.1305 has beenwithdrawn. The purpose of that sectionwas to provide transitional effectivedate rules in the event that theseamendments were adopted prior toSeptember 1. 1989the effective date ofmany of the provisions of Public Law100-687.

There was a typesetting error inAppendix A to part 20. The numbers"20.700-20.717" at the bottom of the left-hand column, beneath the number"20.1304," should have been printed inthe second column after the commawhich appears after the citation "38 CFR3.103(c)" which is in the second columndirectly to the right of the number"20.1304" in the left-hand column. Thiserror has been corrected. The appendixhas also been corrected to reflect thechanges discussed in previous pages.With these correctons, the appendix isadopted.

The Secretary has determined thatthese regulations do not contain a majorrule as that term is defined by ExecutiveOrder 12291, Federal Regulation. Theregulations will not have a $100 millionannual effect on the economy and willnot cause a maw& increase in costs orprices for anyone. They will have nosignificant adverse effects on

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competition, employment, investment,productivity, innovation, or on theability of United States-basedenterprises to compete with foreign-based enterprises in domestic or exportmarkets.

The Secretary hereby certifies thatthese regulatory amendments will nothave a significant economic impact on asubstantial number of small entities asthey are defined in the RegulatoryFlexibility Act, 5 U.S.C. 601-612. Thereason for this certification is that theregulations have only a limited effect onclaimants/appellants and theirrepresentatives. Pursuant to 5 U.S.C.005(b), these regulations are thereforeexempt from the initial and finalregulatory flexibility analysesrequirements of sections 603 and 604.

The information collectionrequirements contained in § § 20.202,20.608, 20.609, 20.610, 20.702, and 20.704of these regulations have been approvedby the Office of Management andBudget (OMB) under OMB controlnumber 2900-0085.

There are no Catalog of FederalDomestic Assistance numbersassociated with these regulatoryamendments.

List of Subjects

38 CFR Part 14

Claims, Foreign relations, Governmentemployees, Lawyers, Legal services,Organization and functions(Government agencies), Reporting andrecordkeeping requirements, Suretybonds, Trusts and trustees, Veterans.

38 CFR Part 19

Administrative practice andprocedure, Claims, Veterans.

38 CFR Part 20

Administrative practice andprocedure, Claims, Lawyers, Legalservices, Veterans.

Approved: November 6, 1991.Edward J. Derwinski,Secretory of Veterans Affairs.

For the reasons set out in thepreamble, 38 CFR parts 14 and 19 areamended, and 38 CFR part 20 is added,as set forth below:

PART 14-LEGAL SERVICES,GENERAL COUNSEL

1. The authority citation for part 14 isrevised to read as follows:

Authority: 38 U.S.C. 501, 5901-5905.

§§ 14.634 and 14.635 [Removed]

§§ 14.636 and 14.637 [Redesignated as§§ 14.634 and 14.635]

2. Sections 14.634 and 14.635 areremoved and § § 14.636 and 14.637 areredesignated as new §§ 14.634 and14.635 respectively.

3. In newly designated § 14.634, thelast sentence is removed and anauthority citation and cross-referencesare added at the end of the section toread as follows:

§ 14.634 Banks or trust companies actingas guardians.

(Authority: 38 U.S.C. 5903, 5904)Cross-References: Payment of

Representative's Fees in Proceedings BeforeDepartment of Veterans Affairs Personneland Before the Board of Veterans' Appeals.See § 20.609 of this chapter. Payment ofRepresentative's Expenses in ProceedingsBefore Department of Veterans AffairsPersonnel and Before the Board of Veterans'Appeals. See J 20.610 of this chapter.

4. In newly designated § 14.635, cross-references are added at the end of thesection to read as follows:

§ 14.635 Office space and facilities.

Cross-References: Payment ofRepresentative's Fees in Proceedings BeforeDepartment of Veterans Affairs Personneland Before the Board of Veterans' Appeals.See § 20.609 of this chapter. Payment ofRepresentative's Expenses in ProceedingsBefore Department of Veterans AffairsPersonnel and Before the Board of Veterans'Appeals. See § 20.610 of this chapter.

5. 38 CFR Part 19, Board of Veterans'Appeals, is revised to read as follows:

PART 19-BOARD OF VETERANS'APPEALS: APPEALS REGULATIONS

Subpart A-Operation of the Board ofVeterans' AppealsSec.19.1 Establishment of the Board.19.2 Composition of the Board.19.3 Appointment, assignment, and rotation

of Members.19.4 Principal functions of the Board.19.5 Criteria governing disposition of

appeals.19.6 [Reserved]19.7 The decision.19.8 Decision notification.19.9 Remand for further development.19.10 [Reserved]19.11 Reconsideration Section.19.12 Disqualification of Members.19.13 Delegation of authority to Chairman

and Vice Chairman, Board of Veterans'Appeals.

19.14 Delegation of authority-AppealsRegulations.

19.15-19.24 [Reserved]

Subpart 8-Appeals Processing by Agencyof Original Jurisdiction

19.25 Notification by agency of originaljurisdiction of right to appeal.

19.26 Action by agency of originaljurisdiction on Notice of Disagreement.

19.27 Adequacy of Notice of Disagreementquestioned within the agency of originaljurisdiction.

19.28 Determination that a Notice ofDisagreement is inadequate protested byclaimant or representative.

19.29 Statement of the Case.19.30 Furnishing the Statement of the Case

and instructions for filing a SubstantiveAppeal.

19.31 Supplemental Statement of the Case.19.32 Closing of appeal for failure to

. respond to Statement of the Case.19.33 Timely filing of Notice of

Disagreement or Substantive Appealquestioned within the agency of originaljurisdiction.

19.34 Determination that Notice ofDisagreement or Substantive Appeal wasnot timely filed protested by claimant orrepresentative.

19.35 Certification of appeals.19.36 Notification of certification of appeal

and transfer of appellate record.19.37 Consideration of additional evidence

received by the agency of originaljurisdiction after an appeal has beeninitiated.

19.38 Action by agency of originaljurisdiction when remand received.

19.39-19.49 [Reserved]

Subpart C-Administrative Appeals

19.50 Nature and form of administrativeappeal.

19.51 Officials authorized to fileadministrative appeals and time limitsfor filing.

19.52 Notification to claimant of filing ofadministrative appeal.

19.53 Restriction as to change in paymentspending determination of administratih eappeals.

19.54-19.74 [Reserved]

Subpert D-Hearings Before TravelingSections of the Board of Veterans' Appeals

19.75 Travel Board hearing docket.19.76 Notice of time and place of Travel

Board hearing.19.77 Providing Statement of the Case when

Travel Board hearing has beenrequested.

19.78-19.99 [Reserved]

Subpart E-Simultaneously ContestedClaims

19.100 Notification of right to appeal insimultaneously contested claims.

19.101 Notice to contesting parties or.receipt of Notice of Disagreement insimultaneously contested claims.

19.102 Notice of appeal to other contestingparties in simultaneously contestedclaims.

Appendix A to Part 19-Cross-Refe"ences

(Authority: 38 U.S.C. 501(a).

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Subpart A-Operation of the Board ofVeterans' Appeals

§ 19.1 Establishment of the Board.The Board of Veterans' Appeals is

established by authority of, andfunctions pursuant to, title 38, UnitedStates Code, chapter 71.

§ 19.2 Composition of the Board.The Board consists of a Chairman,

Vice Chairman, Deputy Vice Chairmen,Members, and professional,administrative, clerical andstenographic personnel.(Authority: 38 U.S.C. 501(a). 512. 7101(a))

§ 19.3 Appointment, assignment, androtation of Members.

(a) Appointment of Members. TheChairman is appointed by the Presidentof the United States, by and with theadvice and consent of the United StatesSenate. Members of the Board, includingthe Vice Chairman, are appointed by theSecretary upon the recommendation ofthe Chairman with the approval of thePresident of the United States. DeputyVice Chairmen are Members of theBoard who are appointed to that officeby the Secretary upon therecommendation of the Chairman.(Authority: 38 U.S.C. 501(a), 512, 7101(b))

(b) Assignment. The Chairman maydivide the Board into Sections of threeMembers, assign Members of the Boardto each such Section, and designate theChief Member of each such Section.From time to time, a Member may bedesignated as a Chief Member or a ChiefMember may be redesignated as aMember.(Authority: 38 U.S.C. 7102)

(c) Rotation. The Chairman may fromtime to time rotate the Members of theSections.(Authority: 38 U.S.C. 7102)

(d) Inability to serve. If, as a result ofa vacancy, absence, or for reasons setforth in § 19.12 of this part, a Member ofa Section of the Board is unable toparticipate in the disposition of anappeal before the Section, the Chairmanmay assign or substitute anotherMember or direct the Section to proceedwithout any additional assignment orsubstitution of Members.(Authority: 38 U.S.C. 7102)

§ 19.4 Principal functions of the Board.The principal functions of the Board

are to make determinations of appellatejurisdiction, consider all applications onappeal properly before it, conducthearings on appeal, evaluate theevidence of record, and enter decisions

in writing on the questions presented onappeal.(Authority: 38 U.S.C. 7102, 7104)

§ 19.5 Criteria governing disposition ofappeals.

In the consideration of appeals, theBoard is bound by applicable statutes,regulations of the Department ofVeterans Affairs, and precedentopinions of the General Counsel of theDepartment of Veterans Affairs. TheBoard is not bound by Departmentmanuals, circulars, or similaradministrative issues.(Authority: 38 U.S.C. 501(a), 7104(c))

§ 19.6 [Reserved]

§ 19.7 The decision.(a) Decisions based on entire record.

The appellant will not be presumed tobe in agreement with any statement offact contained in a Statement of theCase to which no exception is taken.Decisions of the Board are based on areview of the entire record.(Authority: 38 U.S.C. 7104(a), 7105(d)(4))

(b) Content. The decision of the Boardwill be in writing and will set forthspecifically the issue or issues underappellate consideration. Except withrespect to issues remanded to theagency of original jurisdiction for furtherdevelopment of the case and appealswhich are dismissed because the Issuehas been resolved by administrativeaction or because an appellant seekingnonmonetary benefits has died while theappeal was pending, the decision willalso include separately stated findingsof fact and conclusions of law on allmaterial issues of fact and lawpresented on the record, the reasons orbases for those findings andconclusions, and an order granting ordenying the benefit or benefits sought onappeal or dismissing the appeal.(Authority: 38 U.S.C. 7104(d))

§ 19.8 Decision notification.After a decision has been rendered by

the Board, all parties to the appeal andthe representatives, if any, will benotified of the results by the mailing of acopy of the written decision to theparties and their representatives at theirlast known addresses. In the case ofappeals involving contesting claimants,the content of the Board's decision willbe limited to that information whichdirectly affects the payment or potentialpayment of the benefit(s) which is (are)the subject of the contested claim. AnyBoard decision in the same case, butinvolving separate appeal issues whichare not a part of the contested claim,will be made the subject of a separate

written decision which will be mailedonly to that appellant and his or herrepresentative.(Authority: 38 U.S.C. 7104(e))

§ 19.9 Remand for further developmentWhen, during the course of review, it

is determined that further evidence orclarification of the evidence orcorrection of a procedural defect isessential for a proper appellate decision,a Section of the Board shall remand thecase to the agency of originaljurisdiction, specifying the action to beundertaken.(Authority: 38 U.S.C. 7102, 7104(a))

§ 19.10 [Reserved]

§ 19.11 Reconsideration Section.(a] Assignment of members. When a

motion for reconsideration is allowed,the Chairman will assign a Section toconduct the reconsideration.

(b) Number of Members constituting areconsideration Section. The number ofBoard Members assigned to thereviewing Section will be determined byincreasing the number of Members whoparticipated in the original decision bynot less than three additional Members,in increments of three Members. Exceptwhen necessary to obtain a majorityopinion, a reconsideration Section willnot exceed nine Members.

(c) Members included in thereconsideration Section. Thereconsideration Section will includethose Members who participated in theoriginal decision who are available,additional Members assigned by theChairman to substitute for Memberswho participated in the decision beingreconsidered who are no longeravailable, and additional Membersassigned in accordance with paragraph(b) of this section. In the case of TravelBoard hearings involvingreconsideration of a prior Boarddecision, the Members of the travelingSection of the Board will be included inthe expanded Section establishedpursuant to paragraph (b) of this section.If the prior Board decision beingreconsidered involves questionsconcerning post-traumatic stressdisorder or radiation, Agent Orange, orasbestos exposure, the traveling Sectionwill be included in an expanded Sectionwhich also includes Board Membersspecializing in those issues.(Authority: 38 U.S.C. 7102, 7103, 7110)

§ 19.12 Disqualification of Members.(a) General. A Member of the Board

will disqualify himself or herself in ahearing or decision on an appeal if thatappeal involves a determination in

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which he or she participated or hadsupervisory responsibility in the agencyof original jurisdiction prior to his or herappointment as a Member of the Board,or where there are other circumstanceswhich might give the impression of biaseither for or against the appellant.(Authority:. 38 U.S.C. 7102,7104)

(b) Appeal on same issue subsequentto decision on administrative appeal.Members of the Board who made thedecision on an administrative appealwill disqualify themselves from actingon a subsequent appeal by the claimanton the same issue.(Authority: 38 U.S.C. 7102,7104. 7106)

(c) Disqualification of Members bythe Chairman. The Chairman of theBoard, on his or her own motion, maydisqualify a Member from acting in anappeal on the grounds set forth inparagraphs (a) and (b) of this sectionand in those cases where a Member isunable or unwilling to act.(Authority: 36 U.S.C. 7102. 7104. 7106)

§ 19.13 Delegation of authority toChairmen and Vice Chairmen, Board ofVeteran' Appeals.

The Chairman and/or Vice Chairmanhave authority delegated by theSecretary of Veterans Affairs to:

(a) Approve the assumption ofappellate jurisdiction of an adjudicativedetermination which has not becomefinal in order to grant a benefit, and

(b) Order VA Central Officeinvestigations of matters before theBoard.(Authority: 38 U.S.C. 303, 512(a))

§ 1914 Delegation of authority-AppealsRegulations.

(a) The authority exercised by theChairman of the Board of Veterans'Appeals described in § § 19.3(b), 19.3(c),and 19.12(c) of this part may also beexercised by the Vice Chairman of theBoard.

(b) The authority exercised by theChairman of the Board of Veterans'Appeals described in §§ 19.3(d) and19.11 of this part may also be exercisedby the Vice Chairman of the Board andby Deputy Vice Chairmen of the Board.(Authority: 38 U.S.C. 512(a), 7102, 7104)'

§§ 19.15-19.24 [Reserved)

Subpart B-Appeals Processing byAgency of Original Jurisdiction

§ 19.25 Notification by agency of originalJurisdiction of right to appeal.

The claimant and his or herrepresentative, if any, will be informedof appellate rights provided by 38 U.S.C.chapters 71 and 72. including the right to

a personal hearing and the right torepresentation. The agency of originaljurisdiction will provide this informationin each notification of a determinationof entitlement or nonentitlement toDepartment of Veterans Affairs benefits.(Authority: 38 U.S.C. 7105(a))

§ 19.26 Action by agency of originalJurisdIction on Notice of Disagreemet.

When a Notice of Disagreement istimely filed, the agency of originaljurisdiction must reexamine the claimand determine if additional review ordevelopment is warranted. When aNotice of Disagreement is receivedfollowing a multiple-issue determinationand it is not clear which issue, or issues,the claimant desires to appeal,clarification sufficient to identify theissue, or issues, being appealed shouldbe requested from the claimant or his orher representative. If no preliminaryaction is required, or when it iscompleted, the agency of originaljurisdiction must prepare a Statement ofthe Case pursuant to § 19.29 of this part,unless the matter is resolved by grantingthe benefits sought on appeal or theNotice of Disagreement is withdrawn bythe appellant or his or herrepresentative.(Authority: 38 US. 7105(d)(1))

§ 19.27 Adequacy of Notice ofDisagreement questioned within theagency of original Jutsdlctlon.

If, within the agency of originaljurisdiction, there is a question as to theadequacy of a Notice of Disagreement.the procedures for an administrativeappeal must be followed.(Authority: 38 U.S.C. 7105, 7106)

§ 19.28 Determination that a Notice ofDisagreement Is Inadequate protested byclaimant or representative.

Whether a Notice of Disagreement isadequate is an appealable issue. If theclaimant or his or her representativeprotests an adverse determination madeby the agency of original jurisdictionwith respect to the adequacy of a Noticeof Disagreement, the claimant will befurnished a Statement of the Case.(Authority. 38 U.S.C. 7105)

§ 19.29 Statement of the Case.The Statement of the Case must be

complete enough to allow the appellantto present written and/or oralarguments before the Board of Veterans'Appeals. It must contain:

(a) A summary of the evidence in thecase relating to the issue or issues withwhich the appellant or representativehas expressed disagreement:

(b) A summary of the applicable lawsand regulations, with appropriate

citations, and a discussion of how suchlaws and regulations affect thedetermination; and

(c) The determination of the agency oforiginal jurisdiction on each issue andthe reasons for each such determinationwith respect to which disagreement hasbeen expressed.(Authority: 36 U.S.C. 7105(d)(1))

§ 19.30 Furnishing the Statement of theCase and Instructions for filing aSubstantive Appeal.

(a) To whom the Statement of theCase is furnished. The Statement of theCase will be forwarded to the appellantat the latest address of record and aseparate copy provided to his or herrepresentative (if any).

(b) Information furnished with theStatement of the Case. With theStatement of the Case, the appellant andthe representative will be furnishedinformation on the right to file, and timelimit for filing, a Substantive Appeal:information on hearing andrepresentation rights; and a VA Form 1-9, "Appeal to Board of Veterans'Appeals."

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

§ 19.31 Supplemental Statement of theCase.

A Supplemental Statement of theCase, so identified, will be furnished tothe appellant and his or herrepresentative, if any, when additionalpertinent evidence is received after aStatement of the Case or the most recentSupplemental Statement of the Case hasbeen issued, when a material defect inthe Statement of the Case or a priorSupplemental Statement of the Case isdiscovered, or when. for any otherreason, the Statement of the Case or aprior Supplemental Statement of theCase is inadequate. A SupplementalStatement of the Case will also beissued following development pursuantto a remand by the Board unless theonly purpose of the remand is toassemble records previously consideredby the agency of original jurisdictionand properly discussed in a priorStatement of the Case or SupplementalStatement of the Case or unless theBoard specifies in the remand that aSupplemental Statement of the Case isnot required. If the case is remanded tocure a procedural defect, aSupplemental Statement of the Case willbe issued to assure full notification tothe appellant of the status of the case,unless the Board directs otherwise. ASupplemental Statement of the Case isrequired following a hearing on appealbefore field personnel when newdocumentary evidence or evidence in

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the form of testimony concerning therelevant facts or expert opinion ispresented, but is not required if onlyargument is presented.(Authority: 38 U.S.C. 7105(d))

§ 19.32 Closing of appeal for failure torespond to Statement of the Case.

The agency of original jurisdictionmay close the appeal without notice toan appellant or his or her representativefor failure to respond to a Statement ofthe Case within the period allowed.However, if a Substantive Appeal issubsequently received within the 1-yearappeal period (60-day appeal period forsimultaneously contested claims), theappeal will be considered to bereactivated.(Authority: 38 U.S.C. 7105(d)(3))

§ 19.33 Timely filing of Notice ofDisagreement or Substantive Appealquestioned within the agency of originalJurisdiction.

If, within the agency of originaljurisdiction, there is a question as to thetimely filing of a Notice of Disagreementor Substantive Appeal, the proceduresfor an administrative appeal must befollowed.(Authority: 38 U.S.C. 7105, 7106)

§ 19.34 Determination that Notice ofDisagreement or Substantive Appeal wasnot timely filed protested by claimant orrepresentative.

Whether a Notice of Disagreement orSubstantive Appeal has been filed ontime is an appealable issue. If theclaimant or his or her representativeprotests an adverse determination madeby the agency of original jurisdictionwith respect to timely filing of theNotice of Disagreement or SubstantiveAppeal, the claimant will be furnished aStatement of the Case.(Authority: 38 U.S.C. 7105)

§ 19.35 Certification of appeals.Following receipt of the Substantive

Appeal, the agency of originaljurisdiction will certify the case to theBoard of Veterans' Appeals.Certification is accomplished by thecompletion of VA Form 1-8,"Certification of Appeal." Thecertification is used for administrativepurposes and does not serve to eitherconfer or deprive the Board of Veterans'Appeals of jurisdiction over an issue.(Authority: 38 U.S.C. 7105)

§ 19.36 Notification of certification ofappeal and transfer of appellate record.

When an appeal is certified to theBoard of Veterans' Appeals forappellate review and the appellaterecord is transferred to the Board, the

appellant and his or her representative,if any, will be notified in writing of thecertification and transfer and of the timelimit for requesting a change inrepresentation, for requesting a personalhearing, and for submitting additionalevidence described in Rule of Practice1304 (§ 20.1304 of this chapter).(Authority: 38 U.S.C. 7105)

§ 19.37 Consideration of additionalevidence received by the agency of originaljurisdiction after an appeal has beenInitiated.

(a) Evidence received prior to transferof records to Board of Veterans'Appeals. Evidence received by theagency of original jurisdiction prior totransfer of the records to the Board ofVeterans' Appeals after an appeal hasbeen initiated (including evidencereceived after certification has beencompleted) will be referred to theappropriate rating or authorizationactivity for review and disposition. If theStatement of the Case and any priorSupplemental Statements of the Casewere prepared before the receipt of theadditional evidence, a SupplementalStatement of the Case will be furnishedto the appellant and his or herrepresentative as provided in § 19.31 ofthis part, unless the additional evidencereceived duplicates evidence previouslyof record which was discussed in theStatement of the Case or a priorSupplemental Statement of the Case orthe additional evidence is not relevantto the issue, or issues, on appeal.

(b) Evidence received after transfer ofrecords to the Board of Veterans'Appeals. Additional evidence receivedby the agency of original jurisdictionafter the records have been transferredto the Board of Veterans' Appeals forappellate consideration will beforwarded to the Board if it has abearing on the appellate issue or issues.The Board will then determine whataction is required with respect to theadditional evidence.(Authority: 38 U.S.C. 7105(d)(1))

§ 19.38 Action by agency of originaljurisdiction when remand received.

When a case is remanded by theBoard of Veterans' Appeals, the agencyof original jurisdiction will complete theadditional development of the evidenceor procedural development required.Following completion of thedevelopment, the case will be reviewedto determine whether the additionaldevelopment, together with the evidencewhich was previously of record,supports the allowance of all benefitssought on appeal. If so, the Board andthe appellant and his or herrepresentative, if any, will be promptly

informed. If any benefits sought onappeal remain denied following thisreview, the agency of originaljurisdiction will issue a SupplementalStatement of the Case concerning theadditional development pertaining tothose issues in accordance with theprovisions of § 19.31 of this part.Following the 60-day period allowed fora response to the SupplementalStatement of the Case pursuant to Ruleof Practice 302, paragraph (c)(§ 20.302(c) of this chapter), the case willbe returned to the Board for furtherappellate processing unless the appeal iswithdrawn or review of the response tothe Supplemental Statement of the Caseresults in the allowance of all benefitssought on appeal. Remanded cases willnot be closed for failure to respond tothe Supplemental Statement of the Case.(Authority: 38 U.S.C. 7105(d)(1))

§§ 19.39-19.49 [Reserved]

Subpart C-Administrative Appeals

§ 19.50 Nature and form of administrativeappeal.

(a) General. An administrative appealfrom an agency of original jurisdictiondetermination is an appeal taken by anofficial of the Department of VeteransAffairs authorized to do so to resolve aconflict of opinion or a questionpertaining to a claim involving benefitsunder laws administered by theDepartment of Veterans Affairs. Suchappeals may be taken not only fromdeterminations involving dissentingopinions, but also from unanimousdeterminations denying or allowing thebenefit claimed in whole or in part.

(b) Form of Appeal. An administrativeappeal is entered by a memorandumentitled "Administrative Appeal" inwhich the issues and the basis for theappeal are set forth.(Authority: 38 U.S.C. 7106)

§ 19.51 Officials authorized to fileadministrative appeals and time limits forfiling.

The Secretary of Veterans Affairsauthorizes certain officials of theDepartment of Veterans Affairs to fileadministrative appeals within specifiedtime limits, as follows:

(a) Central Office-{1) Officials. TheChief Benefits Director or a ServiceDirector of the Veterans BenefitsAdministration, the Chief MedicalDirector or a service director of theVeterans Health Administration, andthe General Counsel.

(2) Time limit. Such officials must filean administrative appeal within 1 year

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from the date of mailing notice of suchdetermination to the claimant.

(b) Agencies of original jurisdiction-(1) Officials. Directors, adjudicationofficers, and officials at comparablelevels in field offices deciding anyclaims for benefits, from anydetermination originating within theirestablished jurisdiction.

(2) Time limit The Director orcomparable official must file anadministrative appeal within 6 monthsfrom the date of mailing notice of thedetermination to the claimant. Officialsbelow the level of Director must do sowithin 00 days from such date.

(c) The date of mailing. With respectto paragraphs (a) and [b) of this section.the date of mailing notice of thedetermination to the claimant will bepresumed to be the same as the date ofthe letter of notification to the claimant.(Authority: 38 U.S.C. 7106)

§ 19.52 Notification to claimant of filing ofadministrative appeal.

When an administrative appeal isentered, the claimant and his or herrepresentative, if any, will be promptlyfurnished a copy of the memorandumentitled "Administrative Appeal," or anadequate summary thereof, outlining thequestion at issue. They will be alloweda period of 60 days to join in the appealif they so desire. The claimant will alsobe advised of the effect of such actionand of the preservation of normalappeal rights if he or she does not electto join in the administrative appeal.(Authority: 38 U.S.C 710)

§ 19.53 Restriction " so change inpayments pending determinstion ofadministrative appeals.

If an administrative appeal is takenfrom a review or determination by theagency of original jurisdiction pursuantto § § 19.50 and 19.51 of this part, thatreview or determination may not beused to effect any change in paymentsuntil after a decision is made by theBoard of Veterans' Appeals.(Authority: 38 U.S.C. 7106)

§§ 19.54-19.74 [Reserved]

Subparl D--Hearings Before TravelingSections of the Board of Veterans'Appeals

§ 19.75 Travel Board healing docket.Travel Board hearings will be

scheduled in the order in which requestsfor such hearings are received byDepartment of Veterans Affairs fieldfacilities. Any requests submitteddirectly to the Board will be transferredto the appropriate field facility and willnot be considered to have been filed fordocketing purposes until received by theapplicable field facility. EachDepartmental facility generating appealsactivity will:

(a) Mark each written request for aTravel Board hearing to show the dateof receipt, and

(b) Maintain a formal log showing, inthe order that each request for a TravelBoard hearing is received:

(1) The date that each request for aTravel Board hearing was received.

(2) The name of the appellant,(3) The name of the representative.(4) The applicable Departmental file

number,(5) Whether the request for a Travel

Board hearing has been withdrawn.(6) And the date that the hearing was

conducted or a notation that theappellant failed to appear for thehearing.(Authority: 38 U.S.C. 7110)

§ 19.76 Notice of time and place of TravelBoard hearing.

The agency of original jurisdiction willnotify the appellant and his or herrepresentative of the place and time of aTravel Board hearing not less than 60days prior to the hearing date. This timelimitation does not apply to hearingswhich have been rescheduled due to apostponement requested by anappellant, or on his or her behalf, or dueto the prior failure of an appellant toappear at a scheduled Travel Boardhearing with good cause. Therequirement will also be deemed to havebeen waived if an appellant accepts anearlier hearing date due to thecancellation of another previouslyscheduled Travel Board hearing.(Authority: 38 U.S.C. 7110)

§ 19.77 Providing Statement of the Casewhen Travel Board hearing has beenrequested.

If not previously furnished, theappellant and his or her representativewill be provided with a Statement of theCase not later than the date on whichthe agency of original jurisdictionfurnishes them with notification of theplace and time of the Travel Board

hearing. A Statement of the Case is notrequired when the only issue to beconsidered by the traveling Section ofthe Board is the reconsideration of aprior Board of Veterans' Appealsdecision.(Authority: 38 U.S.C. 7105(d)(1). 7110)

§§ 19.78-19.99 [Reservedl

Subpart E-Simultaneously ContestedClaims§ 19.100 Notification of right to appeal Insimultaneously contested claims.

All interested parties will bespecifically notified of the action takenby the agency of original jurisdiction ina simultaneously contested claim and ofthe right and time limit for initiation ofan appeal, as well as hearing andrepresentation rights.(Authority: 38 U.S.C. 7105A(a)l

§ 19.101 Notice to contesting parties onreceipt of Notice of Disagreement insimultaneously contested claims.

Upon the filing of a Notice ofDisagreement in a simultaneouslycontested claim, all interested partiesand their representatives will befurnished a copy of the Statement of theCase. The Statement of the Case sofurnished will contain only informationwhich directly affects the payment orpotential payment of the benefitqs)which is (are) the subject of thatcontested claim. The interested partieswho filed Notices of Disagreement willbe duly notified of the right to file, andthe time limit within which to file, aSubstantive Appeal and will befurnished with VA Form 1-9, "Appeal toBoard of Veterans' Appeals."(Authority: 38 U.S.C. 7105Afb))

§ 19.102 Nodce of appeal to othercontesting parties in s multaneouslycontested claims.

When a Substantive Appeal is filed ina simultaneously contested claim, thecontent of the Substantive Appeal willbe furnished to the other contestingparties to the extent that it containsinformation which could directly affectthe payment or potential payment of thebenefit which is the subject of thecontested claim.(Authority: 38 U.S.C. 7105A(b)I

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APPENDIX A TO PART 19-CROSS-FPEFRENCES

Sec. Clus-10noe Title of cross-referenced marleral or comment

19.5-..... 36 CFR 4.50 ............. . .. See fe *leodvMa vpeionst" of te General Counsel of the Department of Veterans Affairs.38 CFR 2D.1303 . 1....3......... ............ Rub 1Jft fttwoeMi~mtakre ofa60" decisions.

19.7 .................... 38 CFR 20.905 ............ .......... de Va.m. 9a cison19.13 .................. 36 CFR 2.e6 ............................................................. Contains smilar provisions.19.25 ......... 38 (FR 19.52 ................ ................................. Noification to claimant of filing of dm*fistrative appeal.

36 CFR W100 ........... . ..... - of rt to ilo i s confasid clakn19.26...... 38 CPR 2002....................................... Rude 302. Trne Nmrt for M ig Nofice of Disagreease Staini" App" and response to

swpitl SWtsWt of die case.19.27 ......... . .... 3SC FR 19.0-19.53 . .......................... See adaiilmWeappeals.19.30. - 3 CFR 20.202 ...... ............................ Rule 202 Subsntto Apeal19.32 ........ 38 CFR 20.302 ... . .......... ...... . ...... Rule 2 Tne s for ffirt Notice of Di gmo e Su b6e&Wd Appe avid MWom to

,s~wbfflaw q*WM eof" C4ea38 CFA 20.501 .................................................... Re 501. Time imits for fling Notice of Disagreament Substanfto APPeaL and esponse to

S4l**ef Stotensn of te Case in smo/tneousy conte se caims.19, 38 ( R 19.19..3 ...................... ........... See re admiitstiwe ppels.19.50--.. 38 CFA 19.53 ............. ................................ Rstriction as o changein payments pending de tam1ibn of sde*** o eaf.19.76.............. 36 CFR 20.704 ............ .... . ..... Rde 75. Seodifg and op&. of heaftgs oonducted by #uss Sectbn of Oh Board of

Ye#&=,amls &iO wrtswN of Veterans A410 O E. fidt,19.100 ................ 38 CFR 20.713 .......................................... ... Ride 71.2 mrW in skauian s centestAd da19.101..... 38 CFR 19.30 ......................................... FurishW te Statement of the Case and Instructions for fing a Substantive Appeal

. New Part 20. Board of Veterans*Appeals: Rules of Practice, is added to38 CFR to read as follows:PART 20-BOARD OF VETERANS

APPEALS: RULES OF PRACTICE

Subpart A-GenealSec.20.1 Rule 1. Purpose and comstruction of

Rules of Practice.20.2 Rule 2. Precedare ia absence of specific

Rule of Practice.20.3 Rule 3. Definitions.20.4-20.99 [Reserved]

Subpmt &-The Dom20.100 Rule 100. Name, business hours, and

mailing address of &he Boar&28.1ot Rule 101. Jurisdiction of the Woard.20.102 Rule 102. Delegation of authority---

Rules of Practice.20.103-20.199 [Reserved]

S~ n C-Coinien;ernn anW Perfectonof Appeal20.20 Rule 200. What constitutes an appeal.20.201 Rle 21. Notice of Disagreement.20L202 Rule Z. Substanhie Appeal.20.203 Rule 20. Decision as to adequacy of

the Substantive Appeal20.204 Rule 204. Withdrawal of Notice of

Disagreement or Substantive Appeal.20.205-20.2g lReservedl

Subpart D-FIIng20.300 Rule 300. Place of filing Notice of

Disagreement and Substantive Appeal.20.301 Rule 301- Who can file an appeal.20.302 Rule 302. Time limit for filing Notice

of Disagreement, Substantive AppeaLand response to Supplemental Statementof the Case.

20.303 Rae 303. Extension of time for filingSubstantive Appeal and response toSupplemental Statement of the Case.

20.304 Rule 304. Filing additional evidencedoes not extend time limit for appeal.

20.305 Rule 395. Computation of lime limitfor filing.

20.306 Rule 306. Legal holidays.20.307-20.399 IReserved]

Subpart E-Administrative Appeals

20.400 Rule 400. Action by claimant orrepresentative on notification ofadministrative appeal.

20.401 Rule 401. 6l ect of decision onailministrative or merged appeal onclaimant's appellate rights.

20.402-0.499 tReserved]

Subpart F-Shnultaneously Contested

20.500 Rule 50. Who can file an appeal insimultaneously contested claims.

20.501 Ride M0. Tne limits for filing Noticeof Oisagreemeat, Substentive Appeal.and response to Supplemental Statementof the Case in simultaneously contested,tcim.

20.-52 Rule 502. Time limit for response tonotice of appeal by another contestingparty in a simultaneously contestedclaim.

20.503 Rule 503. Extension of time for filinga Substantive Appeal in simultaneouslycontested claims.

20.,M4 Rule S04. Notices sent to lastaddresses of record in simultaneouslycontested claims.

20.05-20.599 IReserved]

Subpart G-Rpeeatalon

20.600 Rule M0O. Rigbl to representation.20.0l Rule O01. Only one representative

recognized.20.602 Rule 2. Representation by

recognized otganizations.20.603 Rule W. Representation by

attorneys-at4aw.20.604 Rule 04. Representation by agents.20.05 Rtle 805. Other persons as

representative.20.606 Rule 606. Legal interns, law students

and paralegals.20.607 Rule 007. Revocation of a

repreeentatives authority to act.20.6N6 Rule MR. Withdrawal of services by

a representative.

20.609 Rule M. Payment of representative's6eesin proceedings before Department ofVeterans Affairs field personnel andbefore the Board of Vetera"a' Appeals.

20.610 Rule SIB. Paymen of repesentative'sexpenses ia prooeediegs beforeDepartment o Veterans Affairs fieldpersonnel and before ie Board ofVeterans' Appeals.

20.611 Rule 611. Continuation ofrepresentation following death of aclaimant or appellant.

20.612-20.699 [Reserved]

Subpart H-4ibtW on Appeal20.70 Rule 760. General.20.M01 Rule 701. Who may present oral

argument20.702 Rule 702. Scheduling and notice of

hearings conducted by the Board ofVeteran' Appeals in Washington. DC.and by agency of original jurisdictionpersonnel actirS on behalf of The Boardof Veterans' Appeals at field facilities,

20.703 Rule 703. When right to Travel Boardhearing arises.

20.704 Rule 704. Scheduling and notice ofhearings conducted by traveling Secfionsof he Board of Veterans' Appeals atDepartment of Veterans Affairs fieldLacilities.

20.705 Rule 705. Where hearings on appealare conducted.

20.706 Rule 706. Functions of the presidingMember.

29.707 Rle 797.VAen ahear4g paielmakes the final eppeflate decision.

20.706 Rule 76. Prehearing conference.20.700 Rule 709. Procurement of additional

evidence following a hearing.20.710 Rule 71. Witnesses at hearings.20.711 Rule 711. Subpoenas.20.712 Rule 712. Expenses of appellants.

represatativas, and witnesses incidentto heariags not reimburnble by theGovernment.

20.713 Rule 713. Hearings in simultaneouslyo tested ciams.

20.714 Rule 714L Record of tueuring.

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20.715 Rule 715. Recording of hearing byappellant or representative.

20.716 Rule 716. Correction of hearingtranscripts.

20.717 Rule 717. Loss of hearing tapes ortranscripts-motion for new hearing.

20.718-20.799 [Reserved]

Subpart I-Evidence20.800 Rule 800. Submission of additional

evidence after initiation of appeal.20.801-20.899 [Reserved]

Subpart J-Acton by the Board20.900 Rule 900. Order of consideration of

appeals.20.901 Rule 901. Medical opinions and

opinions of the General Counsel.20.902 Rule 902. Filing of requests for the

procurement of opinions.20.903 Rule 903. Notification of opinions

secured by the Board and opportunity forresponse.

20.904 Rule 904. Vacating a decision.20.905-20.999 [Reserved]

Subpart K-Reconsderation20.1000 Rule 1000. When reconsideration is

accorded.20.1001 Rule 1001. Filing and disposition of

motion for reconsideration.20.1002 Rule 1002. [Reserved]20.1003 Rule 1003. Hearings on

reconsideration.20.1004--20.1099 [Reserved]

Subpart 1-Finallty20.1100 Rule 1100. Finality of decisions of

the Board.20.1101 Rule 1101. [Reserved]20,1102 Rule 1102. Harmless error.20.1103 Rule 1103. Finality of determinations

of the agency of original jurisdictionwhere appeal is not perfected.

20.1104 Rule 1104. Finality of determinationsof the agency of original jurisdictionaffirmed on appeal.

20.1105 Rule 1105. New claim afterpromulgation of appellate decision.

20.1106 Rule 1106. Claim for death benefitsby survivor-prior unfavorable decisionsduring veteran's lifetime.

20.1107-20.1199 [Reserved]

Subpart M-Privacy Act20.1200 Rule 1200. Privacy Act request-

appeal pending.20.1201 Rule 1201. Amendment of appellate

decisions.20.1202-20.1299 [Reserved]

Subpart N-Miscellaneous20.1300 Rule 1300. Access to Board records.20.1301 Rule 1301. Disclosure of information.20.1302 Rule 1302. Death of appellant during

pendency of appeal.20.1303 Rule 1303. Nonprecedential nature

of Board decisions.20.1304 Rule 1304. Request for change in

representation, request for personalhearing, or submission of additionalevidence following certification of anappeal to the Board of Veterans'Appeals.

Appendix A to Part 20-Cross-References

Authority: 38 U.S.C. 501(a).

Subpart A-General

§ 20.1 Rule 1. Purpose and construction ofRules of Practice.

(a) Purpose. These rules establish thepractices and procedures governingappeals to the Board of Veterans'Appeals.(Authority: 38 U.S.C. 501(a), 7102, 7104)

(b) Construction. These rules are to beconstrued to secure a just and speedydecision in every appeal.(Authority: 38 U.S.C. 501(a), 5107, 7104)

§ 20.2 Rule 2. Procedure In absence ofspecific Rule of Practice.

Where in any instance there is noapplicable rule or procedure, theChairman may prescribe a procedurewhich is consistent with the provisionsof title 38, United States Code, and theserules.

(Authority: 38 U.S.C. 501(a), 512(a), 7102,7104)

§ 20.3 Rule 3. DefInitions.As used in these Rules:(a] Agency of original jurisdiction

means the Department of VeteransAffairs regional office, medical center,clinic, cemetery, or other Department ofVeterans Affairs facility which made theinitial determination on a claim or, if theapplicable records are later permanentlytransferred to another Department ofVeterans Affairs facility, its successor.

(b) Agent means a person who hasmet the standards and qualifications foraccreditation outlined in § 14.629(b) ofthis chapter and who has been properlydesignated under the provisions of Rule604 (§ 20.604 of this part). It does notinclude representatives recognizedunder Rules 602, 603, or 605 (§ 20.602,20.603, or § 20.605 of this part).

(c) Appellant means a claimant whohas initiated an appeal to the Board ofVeterans' Appeals by filing a Notice ofDisagreement pursuant to the provisionsof 38 U.S.C. 7105.

(d) Attorney-at-law means a memberin good standing of a State bar.

(e) Benefit means any payment,service, commodity, function, or status,entitlement to which is determinedunder laws administered by theDepartment of Veterans Affairspertaining to veterans and theirdependents and survivors.

(f) Claim means application madeunder title 38, United States Code, andimplementing directives for entitlementto Department of Veterans Affairsbenefits or for the continuation orincrease of such benefits, or the defenseof a proposed agency adverse actionconcerning benefits.

(g) Claimant means a person who hasfiled a claim, as defined by paragraph (f)of this section.

(h) Hearing on appeal means ahearing conducted after a Notice ofDisagreement has been filed in whichargument and/or testimony is presentedconcerning the determination, ordeterminations, by the agency oforiginal jurisdiction being appealed.

(i) Law student means an individualpursuing a Juris Doctor or equivalentdegree at a school approved by arecognized accrediting association.

(j) Legal intern means a graduate of alaw school, which has been approved bya recognized accrediting association,who has not yet been admitted to aState bar.

(k) Motion means a request that theBoard rule on some question which issubsidiary to the ultimate decision onthe outcome of an appeal. For example,the questions of whether arepresentative's fees are reasonable orwhether additional evidence may besubmitted more than 90 days aftercertification of an appeal to the Boardare raised by motion (see Rule 609,paragraph (i), and Rule 1304, paragraph(b) §§ 20.609(i) and 20.1304(b) of thispart). Unless raised orally at a personalhearing before Members of the Board,motions for consideration by the Boardmust be made in writing. No formal typeof document is required. The motionmay be in the form of a letter whichcontains the necessary information.

(1) Paralegal means a graduate of acourse of paralegal instruction given bya school which has been approved by arecognized accrediting association, or anindividual who has equivalent legalexperience.

(m) Simultaneously contested claimrefers to the situation in which theallowance of one claim results in thedisallowance of another claim involvingthe same benefit or the allowance of oneclaim results in the payment of a lesserbenefit to another claimant.

(n) State includes any State,possession, territory, or Commonwealthof the United States, as well as theDistrict of Columbia.(Authority: 38 U.S.C. 501(a))

§§ 20.4-20.99 [Reserved]

Subpart B-The Board

§ 20.100 Rule 100. Name, business hours,and mailing address of the Board.

(a) Name. The name of the Board isthe Board of Veterans' Appeals.

(b) Business hours. The Board is openduring business hours on all days exceptSaturday, Sunday and legal holidays.

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Business hours are from 8 a.m. to 430p.m.

(c) Mailing address. Except asotherwise noted in these Rules, mail tothe Board must be addressed to:Chairman (01). Board of Veterans'Appeals. 810 Vermont Avenue NW..Washington. DC 20420.

(Autherity: 36 U.S.C. 7101(a))

§ 20.101 Rule 101. JursdIction of theBoard.

fa) General. All questions of law andfact necessary to a decision by theSecretary of Veterans Affairs under alaw that affects the provision of benefitsby the Secretary to veterans or theirdependents or survivors are subject toreview on appeal to the Secretary.Decisions in such appeals are made bythe Board of Veterans' Appeals. In itsdecisions, the Board is bound byapplicable statutes, the regulations ofthe Department of Veterans Affairs andprecedent opinions of the GeneralCounsel of th Department of VeteransAffairs. Examples of the issues overwhich the Board has jurisdictioninclude, but are not limited to. thefollowing:

(1) Entitlement to. and benefitsresulting from, service-connecteddisability or death (38 U.S.C. chapter11).

(2) Dependency and indemnitycompensation for service-coaucteddeath, indaling benefits in certain casesof inservice or service-cmoreced deaths(38 UC. 1312) and certification andentitlement to death gratuity (38 U.S.C.1323).

(31 Benefits for survivors of certainveterans rated totally disabled at time ofdeath (38 U.S.C. 1316).

(4) Entitlement to nonservice-connected disability pension. servicepension and death pension (36 USC.chapter 15).

(5) Afl-Volunteer Force EducationalAssistance Program (38 US.C. chapter30).

(6) Training and Rehabilitation forVeterans with Service-ConnectedDisabilities (36 U.S.C. chapter 31).

(7) Post-Vietnam Era Veterans'Educational Assistance [38 U.S.C.chapter 32).

(8) Veterans' Educational Assistance(38 U.S.C. chapter 34).

(9) Survivors' and Dependents'Educational Assistance (38 U.S.C.chapter 35).

(10) Veterans' Job Training (Pub. L98-77. as amended. 38 CFR i.4600 etseq.).

(11) Educational Assistance forMembers of the Selected Reserve (10U.S.C. chapter lO6).

(12) Educational Assistane TestProgram (10 U.S.C. chapter 107. 38 CFR2L5701 et seq..

(13) Educational Assistance PilotProgram (10 ULSC. chapter 107. 38 CFR21.5290e tseq.

(14) Matters arising under NationalService Life Insurance and United StatesGovernment Life Insurance (38 U.S.C.chapter 19).

(15) Payment or reimbursement forunauthorized medical expenses [38U.S.C. 1728).

[16) Burial benefits and burial inNational Cemeteries (38 U.S.C. chapters23 and 24)

(17) Benefits for persons disabled bymedical treatment or vocationalrehabilitation (38 U.S.C. 1151).

(18) Basic eligibility for home,condominium and mobile home loans aswell as waiver of payment of loanguaranty indebtedness (38 U.S.C.chapter 37. 36 U.S.C. 5302).

(19) Waiver of recovery ofoverpayments (36 U.&.C. 5302).

(28) Forfeiture of rights, claims orbenefits for fraud, treason, or subversiveactivities (38 U.S.C. 6102-6105).

(211 Character of dischare (38 US.C.5303

(22) Determinations as to duty status(38 USC. 1W1).-(24J).

(23) Determinations as to maritalstatus (38 U.&C. 10143). 103).

(24) Determination of dependencystatus as parent or child (38 U.S.C101(4). (5)).

(25) Validity of claims and effectivedates of benefits (38 U.S.C. chapter 51).

(26) Apportionment of benefits (38U.S.C. 5307).

f27) Payment of benefits while aveteran is hospitalized and questionsregarding an estate of an incompetentinstitutionalized veteran (38 U.S.C.5503).

(28) Benefits for surviving spouses andchildren of deceased veterans underPublic Law 97-377, section 156 (38 CFR3.812(d)).

(29) Eligibility for automobile andautomobile adaptive equipmentassistance (38 U.S.C. chapter 39).

(b) Appellate jursdiction ofdeterminations of the Veterans HealthAdministration. The Board's appellatejurisdiction extends to questions ofeligibility for hospitalization, outpatienttreatment, and nursing home anddomiciliary care; for devices such asprostheses, canes, wheelchairs, backbraces, orthopedic shoes, and similarappliances; and for other benefitsadministered by the Veterans HealthAdministratmn. Medical determinations,such as determinations of the need forand appropriateness of specific types ofmedical care and treatment for an

individua ae at adjudicative mattersand are beyond the Board's jurisdiction.Typical examples of these issues arwhetheir a particuia drug should beprescribed, whether a specific type ofphysiotherapy should be ordered, andsimilar judgmental treatment decisionswith which an atteding physician maybe faced.

(c) Appeals as to jurisdiction. Allclaimants have the right to appeal adetermination made by the agency oforiginal jurisdiction that the Board doesnot have jurisdictional authority toreview a particular issue. This includesquestions relating to the timely filingand adequacy of the Notice ofDisagreement and the SubstantiveAppeal. Subject to review by courts ofcompetent jurisdiction, only the Board ofVeterans' Appeals will make finaldecisions with respect to its jarisdiction.

(Authority. 38 USiC. 511(a). 71N4)

§ 20.102 Rule 102. Delegation ofauthority-Rules of Practice.

(a) The authority exercised by theChairman of the Board of Veterans'Appeals described in Rate 909(c)(I 20.Uo(c) 4 this part) MAY ALSO beexercised by the Vice Chairman of theBoard.

(b) The authority exercised by theChairman of the Board of VeteranV'Appeals described in Rules 0b.717(d). and 01(c) (§ I 29.8(b).2&717d, and 20.1001c) of this part)may also be exercised by the ViceChairman ofthe Board and by DeputyVice Chairmen of the Board.

(c) The authority exercised by theChairman of the Board of Veterans'Appeals described in Rale 2 ( 20.2 ofthis part) may also be exercised by theVice Chairman of the Board. by DeputyVice Chairmen of the Board; and, inconjunction with a proceeding or motionin connection therewith assigned tothem by the Chairman, by Members ofthe Board who have been desiated asthe Chief Member of a Section of theBoard or as the Acting Chief Member ofa Section of the Board and by a Memberof the Board who is acting as thepresiding Member of a hearing panel.

(d) The authority exercised by theChairman of the Board of Veterans'Appeals described in Ruies 006(e).600(i). 61(d. 711(e), 711(Q). and 1304(b)(§I 20AM.(e), ,.W.(i). 1.610(d].20.711(e). 20.711(f). and 20.1.304(b) of thispart) may also be exercised by the ViceCkaimm of te Board and by DeputyVice Cheirmen of the Board. When,however, the matter arises inconaaction With an appeal or anyproceedift insfituted before the Board.or any motion in connection therewith,

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assigned to a Section, or Sections, by theChairman for a hearing and/ordisposition, this authority shall beexercised by the Members of the BoardSection, or Sections, involved.(Authority: 38 U.S.C. 512(a), 7102, 7104)

§§ 20.103-20.199 [Reserved]

Subpart C-Commencement andPerfection of Appeal

§ 20.200 Rule 200. What constitutes anappeal.

An appeal consists of a timely filedNotice of Disagreement in writing and,after a Statement of the Case has beenfurnished, a timely filed SubstantiveAppeal.(Authority: 38 U.S.C. 7105)

§ 20.201 Rule 201. Notice ofDisagreement

A written communication from aclaimant or his or her representativeexpressing dissatisfaction ordisagreement with an adjudicativedetermination by the agency of originaljurisdiction and a desire to contest theresult will constitute a Notice ofDisagreement. While special wording isnot required, the Notice of Disagreementmust be in terms which can bereasonably construed as disagreementwith that determination and a desire forappellate review. If the agency oforiginal jurisdiction gave notice thatadjudicative determinations were madeon several issues at the same time, thespecific determinations with which theclaimant disagrees must be identified.For example, if service connection wasdenied for two disabilities and theclaimant wishes to appeal the denial ofservice connection with respect to onlyone of the disabilities, the Notice ofDisagreement must make that clear.(Authority: 38 U.S.C. 7105)

§ 20.202 Rule 202. Substantive Appeal.A Substantive Appeal consists of a

properly completed VA Form 1-9,"Appeal to Board of Veterans' Appeals,"or cor espondence containing thenecessary information. If the Statementof the Case and any prior SupplementalStatements of the Case addressedseveral issues, the Substantive Appealmust either indicate that the appeal isbeing perfected as to all of those issuesor must specifically identify the issuesappealed. The Substantive Appealshould set out specific argumentsrelating to errors of fact or law made bythe agency of original jurisdiction inreaching the determination, ordeterminations, being appealed. To theextent feasible, the argument should berelated to specific items in the

Statement of the Case and any priorSupplemental Statements of the Case.The Board will construe such argumentsin a liberal manner for purposes ofdetermining whether they raise issueson appeal, but the Board may dismissany appeal which fails to allege specificerror of fact or law in the determination,or determinations, being appealed. TheBoard will not presume that anappellant agrees with any statement offact contained in a Statement of theCase or a Supplemental Statement of theCase which is not specifically contested.Proper completion and filing of aSubstantive Appeal are the last actionsthe appellant needs to take to perfect anappeal.(Authority: 38 U.S.C. 7105(d)(3)-(5))(Approved by the Office of Management andBudget under control number 2900-0085]

§ 20.203 Rule 203. Decision as toadequacy of the Substantive Appeal.

A decision as to the adequacy ofallegations of error of fact or law in aSubstantive Appeal will be made by theBoard of Veterans' Appeals. When theBoard raises the issue of adequacy ofthe Substantive Appeal, the appellantand representative, if any, will be givennotice of the issue and a period of 60days following the date on which suchnotice is mailed to present writtenargument or to request a hearing topresent oral argument on this question.The date of mailing of the notice will bepresumed to be the same as the date ofthe letter of notification.(Authority: 38 U.S.C. 7105(d)(3), 7108)

§ 20.204 Rule 204. Withdrawal of Notice ofDisagreement or Substantive Appeal.

(a) Notice of Disagreement. A Noticeof Disagreement may be withdrawn inwriting before a timely SubstantiveAppeal is filed.(Authority: 38 U.S.C. 7105(d)(1))

(b) Substantive Appeal. A SubstantiveAppeal may be withdrawn in writing atany time before the Board of Veterans'Appeals promulgates a decision.(Authority: 38 U.S.C. 7105(d)(3))

(c) Who May Withdraw. Withdrawalmay be by the appellant or by his or herauthorized representative, except that arepresentative may not withdraw eithera Notice of Disagreement or SubstantiveAppeal filed by the appellant personallywithout the express written consent ofthe appellant. The agency of originaljurisdiction may not withdraw a Noticeof Disagreement or a SubstantiveAppeal after filing of either or both.(Authority: 38 U.S.C. 7105(b)(2))

§§ 20.205-20.299 [Reserved]

Subpart D-Filing

§ 20.300 Rule 300. Place of filing Notice ofDisagreement and Substantive Appeal.

The Notice of Disagreement andSubstantive Appeal must be filed withthe Department of Veterans Affairsoffice from which the claimant receivednotice of the determination beingappealed unless notice has beenreceived that the applicable Departmentof Veterans Affairs records have beentransferred to another Department ofVeterans Affairs office. In that case, theNotice of Disagreement or SubstantiveAppeal must be filed with theDepartment of Veterans Affairs officewhich has assumed jurisdiction over theapplicable records.

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

§ 20.301 Rule 301. Who can file an appeal.

(a) Persons authorized. A Notice ofDisagreement and/or a SubstantiveAppeal may be filed by a claimantpersonally, or by his or herrepresentative if a proper Power ofAttorney or declaration ofrepresentation, as applicable, is onrecord or accompanies such Notice ofDisagreement or Substantive Appeal.

(b) Claimant rated incompetent byDeportment of Veterans Affairs orunder disability and unable to file. If anappeal is not filed by a person listed inparagraph (a) of this section, and theclaimant is rated incompetent by theDepartment of Veterans Affairs or has aphysical, mental, or legal disabilitywhich prevents the filing of an appeal onhis or her own behalf, a Notice ofDisagreement and a Substantive Appealmay be filed by a fiduciary appointed tomanage the claimant's affairs by theDepartment of Veterans Affairs or acourt, or by a person acting as nextfriend if the appointed fiduciary fails totake needed action or no fiduciary hasbeen appointed.

(c) Claimant under disability and ableto file. Notwithstanding the fact that afiduciary may have been appointed for aclaimant, an appeal filed by a claimantwill be accepted.(Authority: 38 U.S.C. 7105(b)(2))

§ 20.302 Rule 302. Time limit for filingNotice of Disagreement, SubstantiveAppeal, and response to SupplementalStatement of the Case.

(a) Notice of Disagreement. Except inthe case of simultaneously contestedclaims, a claimant, or his or herrepresentative, must file a Notice ofDisagreement with a determination bythe agency of original jurisdiction within

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one year from the date that that agencymails notice of the determination to himor her. Otherwise, that determinationwill become final. The date of mailingthe letter of notification of thedetermination will be presumed to bethe same as the date of that letter forpurposes of determining whether anappeal has been timely filed.(Authority: 38 U.S.C. 7105(b)(1))

(b) Substantive Appeal. Except in thecase of simultaneously contested claims,a Substantive Appeal must be filedwithin 60 days from the date that theagency of original jurisdiction mails theStatement of the Case to the appellant,or within the remainder of the 1-yearperiod from the date of mailing of thenotification of the determination beingappealed, whichever period ends later.The date of mailing of the Statement ofthe Case will be presumed to be thesame as the date of the Statement of theCase and the date of mailing the letter ofnotification of the determination will bepresumed to be the same as the date ofthat letter for purposes of determiningwhether an appeal has been timely filed.(Authority: 38 U.S.C. 7105 (b)(1), (d)(3))

(c) Response to SupplementalStatement of the Case. Where aSupplemental Statement of the Case isfurnished, a period of 60 days from thedate of mailing of the SupplementalStatement of the Case will be allowedfor response. The date of mailing of theSupplemental Statement of the Case willbe presumed to be the same as the dateof the Supplemental Statement of theCase for purposes of determiningwhether a response has been timelyfiled. Provided a Substantive Appeal hasbeen timely filed in accordance withparagraph (b) of this section, theresponse to a Supplemental Statementof the Case is optional and is notrequired for the perfection of an appeal,unless the Supplemental Statement ofthe Case covers issues that were notincluded In the original Statement of theCase. If a Supplemental Statement of theCase covers issues that were notincluded in the original Statement of theCase, a Substantive Appeal mustbefiled with respect to those issues within60 days in order to perfect an appealwith respect to the additional issues.(Authority: 38 U.S.C. 7105(d)(3))

§ 20.303 Rule 303. Extension of time forfiling Substantive Appeal and response toSupplemental Statement of the Case.

An extension of the 60-day period forfiling a Substantive Appeal, or the 60-day period for responding to aSupplemental Statement of the Casewhen such a response is required, may

be granted for good cause. A request forsuch an extension must be in writingand must be made prior to expiration ofthe time limit for filing the SubstantiveAppeal or the response to theSupplemental Statement of the Case.The request for extension must be filedwith the Department of Veterans Affairsoffice from which the claimant receivednotice of the determination beingappealed, unless notice has beenreceived that the applicable recordshave been transferred to anotherDepartment of Veterans Affairs office. Adenial of a request for extension may beappealed to the Board.(Authority: 38 U.S.C. 7105(d)(3))

§ 20.304 Rule 304. Ffling additionalevidence does not extend time limit forappeal.

The filing of additional evidence afterreceipt of notice of an adversedetermination does not extend the timelimit for initiating or completing anappeal from that determination.(Authority: 38 U.S.C. 7105)

§ 20.305 Rule 305. Computation of timelimit for filing.

(a) Acceptance of postmqrk date.When these Rules require that anywritten document be filed within aspecified period of time, a responsepostmarked prior to expiration of theapplicable time limit will be accepted ashaving been timely filed. In the eventthat the postmark is not of record, thepostmark date will be presumed to befive days prior to the date of receipt ofthe document by the Department ofVeterans Affairs. In calculating this 5-day period, Saturdays, Sundays andlegal holidays will be excluded.

(b) Computation of time limit. Incomputing the time limit for filing awritten document, the first day of thespecified period will be excluded andthe last day included. Where the timelimit would expire on a Saturday,Sunday, or legal holiday, the nextsucceeding workday will be included inthe computation.(Authority: 38 U.S.C. 7105)

§ 20.306 Rule 306. Legal holidays.For the purpose of Rule 305 (§ 20.305

of this part), the legal holidays, inaddition to any other day appointed as aholiday by the President or the Congressof the United States, are as follows: NewYear's Day-January 1; InaugurationDay-January 20 of every fourth year or,if the 20th falls on a Sunday, the nextsucceeding day selected for publicobservance of the inauguration; Birthdayof Martin Luther King, Jr.-ThirdMonday in January; Washington's

Birthday-Third Monday in February;Memorial Day-Last Monday in May;Independence Day-July 4; Labor Day-First Monday in September, ColumbusDay-Second Monday in October;Veterans Day-November 11;Thanksg!ving Day-Fourth Thursday inNovember, and Christmas Day-December 25. When a holiday occurs ona Saturday, the Friday immediatelybefore is the legal public holiday. Whena holiday occurs on a Sunday, theMonday immediately after is the legalpublic holiday.(Authority: 5 U.S.C. 6103)

§§ 20.307-20.399 [Reserved]

Subpart E-Administrative Appeals

§ 20.400 Rule 400. Action by claimant orrepresentative on notification ofadministrative appeal.

When an official of the Department ofVeterans Affairs enters anadministrative appeal, the claimant andhis or her representative, if any, arenotified and given a period of 60 daysfrom the date of mailing of the letter ofnotification to join in the administrativeappeal. The date of mailing of the letterof notification will be presumed to bethe same as the date of the letter ofnotification. If the claimant, or therepresentative acting on his or herbehalf, elects to join in theadministrative appeal, it becomes a"merged appeal" and the rulesgoverning an appeal initiated by aclaimant are for application. Thepresentation of evidence or argument bythe claimant or his or her representativein response to notification of the right tojoin in the administrative appeal will beconstrued as an election to join in theadministrative appeal. If the claimantdoes not authorize the merger, he or shemust hold such evidence or argument inabeyance until resolution of theadministrative appeal.(Authority: 38 U.S.C. 7106)

§ 20.401 Rule 401. Effect of decision onadministrative or merged appeal onclaimant's appellate rights.

(a) Merged appeal. If theadministrative appeal is merged, theappellate decision on the merged appealwill constitute final disposition of theclaimant's appellate rights.

(b) Appeal not merged. If the claimantdoes not authorize merger, normalappellate rights on the same issue arepreserved, and a decision in a separateappeal perfected by the claimant will beentered by a Section of the Board whichdoes not include Members who madethe decision on the administrativeappeal. The period of time from the date

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§§ 20.402-20.499 [Reserved]

Subpart F-Smutaneously ContestedClaims

§ 20.500 Rule 500. Who can file an appealIn simultaneously contested claims.

In a simultaneously contested claim,any claimant or representative of aclaimant may file a Notice ofDisagreement or Substantive Appealwithin the time limits set out in Rule 501(§ 20.501 of this part).(Authority: 38 U.S.C. 7105(b)(2), 7105A)

§20.501 Rule 501. Time limits for filingNotice of Disagrement, SubstantiveAppeal, and response to SupplementalStatement of the Case In samultaneouslycontested claims.

(a) Notice of Disagreement. Insimultaneously contested claims, theNotice of Disagreement from the personadversely affected must be filed within60 days from the date of mailing of thenotification of the determination to himor her, otherwise, that determinationwill become final. The date of mailing ofthe letter of notification will bepresumed to be the same as the date ofthat letter for purposes of determiningwhether a Notice of Disagreement hasbeen timely filed.(Authority: 38 U.S.C. 7105A(a))

(b) Substantive Appeal. In the case ofsimultaneously contested claims, aSubstantive Appeal must be filed within30 days from the date of mailing of theStatement of the Case. The date ofmailing of the Statement of the Case willbe presumed to be the same as the dateof the Statement of the Case forpurposes of determining whether anappeal has been timely filed.(Authority: 38 U.S.C. 7105A(b))

(c) Supplemental Statement of theCase. Where a Supplemental Statementof the Case is furnished by the agency oforiginal jurisdiction in a simultaneouslycontested claim, a period of 30 daysfrom the date of mailing of theSupplemental Statement of the Case willbe allowed for response, but the receiptof a Supplemental Statement of the Casewill not extend the time allowed forfiling a Substantive Appeal as set forthin paragraph (b) of this section. The dateof mailing of the SupplementalStatement of the Case will be presumed

to be the same as the date of theSupplemental Statement of the Case forpurposes of determining whether aresponse has been timely filed. Provideda Substantive Appeal has been timelyfiled in accordance with paragraph (b)of this section, the response to aSupplemental Statement of the Case isoptional and is not required for theperfection of an appeal, unless theSupplemental Statement of the Casecovers issues that were not included inthe original Statement of the Case. If aSupplemental Statement of the Casecovers issues that were not included inthe original Statement of the Case, aSubstantive Appeal must be filed withrespect to those issues within 30 days ofthe date of mailing of the SupplementalStatement of the Case in order to perfectan appeal with respect to the additionalissues.(Authority: 38 U.S.C. 7105(dH3), 7105A(b))

§ 20.502 Rule 502. Time limit for responseto notice of appeal by another contestingparty In a simultaneously contested claim.

Notice of an appeal by anothercontesting party in a simultaneouslycontested claim is given by sending acopy of that party's Substantive Appealto all other contesting parties. A periodof 30 days from the date of mailing ofthe copy of the Substantive Appeal isallowed for filing a brief or argument inanswer. The date of mailing of the copywill be presumed to be the same as thedate of the letter which accompanies thecopy.(Authority: 38 U.S.C. 7105A(b))

§ 20.503 Rule 503. Extension of time forfiling a Substantive Appeal Insimultaneously contested claims.

An extension of the 30-day period tofile a Substantive Appeal insimultaneously contested claims may begranted if good cause is shown. Ingranting an extension, considerationwill be given to the interests of the otherparties involved. A request for such anextension must be in writing and mustbe made prior to expiration of the timelimit for filing the Substantive Appeal.(Authority: 38 U.S.C. 7105A(b))

1 20.504 Rule 504. Notices sent to lastaddresses of record In simultaneouslycontested claims.

Notices in simultaneously contestedclaims will be forwarded to the lastaddress of record of the partiesconcerned and such action willconstitute sufficient evidence of notice.(Authority: 38 U.S.C. 7105A(b)}

§§ 20.505-20.599 [Reserved)

Subpart G-Representation

Cros-Referemnc: In cases involving accessto medical records relating to drug abuse,alcoholism, alcohol abuse, sickle cell anemia,or Infection with the humanImmunodeficiency virus, also see 38 US.C.7332.

§ 20.500 Rule 600. Right to representatiot.An appellant will be accorded full

right to representation in all stages of anappeal by a recognized organization,attorney, agent, or other authorizedperson.

(Authority: 38 U.S.C. 5901-5905, 7105(a))

§20.601 Rule 601. Only one relpesentalverecognze&

A specific claim may be prosecuted atany one time by only one recognizedorganization, attorney, agent or otherperson properly designated to representthe appellant.(Authority: 30 U.S.C. 7105(b)(2))

§ 20.602 Rule 601 Representation byrecognized organizations.

In order to designate a recognizedorganization as his or herrepresentative, an appellant mustexecute a VA Form 21-2Z "Appointmentof Veterans Service Organization asClaimant's Representative." This formgives the organization power of attorneyto represent the appellant. Thedesignation will be effective when it isreceived by the agency of originaljurisdiction or, if the appellate recordhas been certified to the Board forreview, by the Board of Veterans'Appeals. A properly filed designationmade prior to appeal will continue to behonored, unless it has been revoked bythe appellant or unless therepresentative has properly withdrawn.

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

§ 20.603 Rule 603. Representation byattorney.4w.

(a) Designation. An attorney-at-lawmay be designated as an appellant'srepresentative through a properlyexecuted VA Form 2-22a, "Appointmentof Attorney or Agent as Claimant'sRepresentative." This form gives theattorney power of attorney to representthe appellant. In lieu thereof, anattorney may state in writing on his orher letterhead that he or she isauthorized to represent the appellant inorder to have access to information inthe appellant's file pertinent to theparticular claim presented. For anattorney to have complete access to allinformation in an individual's records,the attorney must provide a signed

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consent from the appellant or theappellant's guardian. Such consent shallbe equivalent to an executed power ofattorney. The designation must be of anindividual attorney, rather than a firm orpartnership. An appellant may limit anattorney's right to act as his or herrepresentative in an appeal torepresentation with respect to a specificclaim for one or more specific benefitsby noting the restriction in the writtendesignation. Unless specifically noted tothe contrary, however, designations ofan attorney as a representative willextend to all matters with respect toclaims for benefits under lawsadministered by the Department ofVeterans Affairs. Designations areeffective when they are received by theagency of original jurisdiction or, if theappellate record has been certified tothe Board for review, by the Board ofVeterans' Appeals. A properly fileddesignation made prior to appeal willcontinue to be honored, unless it hasbeen revoked or unless therepresentative has properly withdrawn.Legal interns, law students, andparalegals may not be independentlyaccredited to represent appellants underthis Rule.

(b) Attorneys employed by recognizedorganization. A recognized organizationmay employ an attorney-at-law torepresent an appellant. If the attorney soemployed is not an accreditedrepresentative of the recognizedorganization, the signed consent of theappellant for the substitution ofrepresentatives must be obtained andsubmitted to the agency of originaljurisdiction or, if the appellate recordhas been certified to the Board forreview, to the Board of Veterans'Appeals. When the signed consent isreceived by the agency of originaljurisdiction or the Board, as applicable,the attorney will be recognized as theappellant's representative in lieu of theorganization.

(c) Participation of associated oraffiliated attorneys. With the specificwritten consent of the appellant, anattorney associated or affiliated with theappellant's attorney of record, includingan attorney employed by the same legalservices office as the attorney of record,may assist in representation of theappellant and may have access to theappellant's Department of VeteransAffairs records to the same extent as theattorney of record. Unless revoked bythe appellant, such consent will remaineffective in the event the originalattorney of record is replaced byanother attorney who is a member of thesame law firm or an attorney employedby the same legal services office. The

consent must include the name of theveteran; the name of the appellant ifother than the veteran (e.g., a veteran'ssurvivor, a guardian, or a fiduciaryappointed to receive VA benefits on anindividual's behalf); the applicableDepartment of Veterans Affairs filenumber, the name of the attorney ofrecord; the consent of the appellant forthe use of the services of the associatedor affiliated attorney and for thatindividual to have access to applicableDepartment of Veterans Affairs records;and the name of the associated oraffiliated attorney who will be assistingin the case. The consent must be filedwith the agency of original jurisdictionor, if the appellate record has beencertified to the Board for review, withthe Board of Veterans' Appeals. Thepresiding Member at a hearing onappeal may require that not more thanone attorney participate in theexamination of any one witness orimpose other reasonable limitations toensure orderly conduct of the hearing.(Authority: 38 U.S.C. 5901, 5904)

§ 20.604 Rule 604. Representation byagents.

(a) Designation. The designation of anagent will be by a duly executed powerof attorney, VA Form 2-22a,"Appointment of Attorney or Agent asClaimant's Representative," or itsequivalent. The designation must be ofan individual, rather than a firm orpartnership. The designation will beeffective when it is received by theagency of original jurisdiction or, if theappellate record has been certified tothe Board for review, by the Board ofVeterans' Appeals. A properly fileddesignation made prior to appeal willcontinue to be honored, unless it hasbeen revoked or unless therepresentative has properly withdrawn.

(b) Admission to practice. Theprovisions of 38 U.S.C. 5904 and of§ 14.629(b) of this chapter are applicableto the admission of agents to practicebefore the Department of VeteransAffairs. Authority for makingdeterminations concerning admission topractice rests with the General Counselof the Department of Veterans Affairs,and any questions concerningadmissions to practice should beaddressed to: Office of the GeneralCounsel (022A), Department of VeteransAffairs, 810 Vermont Avenue, NW.,Washington, DC 20420.(Authority: 38 U.S.C. 5904)

§ 20.605 Rule 605. Other persons asrepresentatlve.

(a) Scope of rule. This section appliesto representation other than by a

recognized organization, an agentadmitted to practice before theDepartment of Veterans Affairs, or anattorney-at-law.

(b) Who may act as representative.Any competent person may berecognized as a representative for aparticular claim, unless that person hasbeen barred from practice before theDepartment of Veterans Affairs.

(c) Designation. The designation of anindividual to act as an appellant'srepresentative may be made byexecuting a VA Form 2-22a,"Appointment of Attorney or Agent asClaimant's Representative." This formgives the individual power of attorney torepresent the appellant in all matterspertaining to the presentation andprosecution of claims for any and allbenefit under laws administered by theDepartment of Veterans Affairs. In lieuof using the form, the designation maybe by a written document signed byboth the appellant and the individualrepresentative, which may be in theform of a letter, which authorizes anamed individual to act as theappellant's representative only withrespect to a specific claim involving oneor more specific benefits. The documentmust include the name of the veteran;the name of the appellant if other thanthe veteran (e.g., a veteran's survivor, aguardian, or a fiduciary appointed toreceive VA benefits on an individual'sbehalf); the applicable Department ofVeterans Affairs file number, theappellant's consent for the individualrepresentative to have access to his orher Department of Veterans Affairsrecords; the name of the individualrepresentative; a description of thespecific claim for benefits to which thedesignation of representation applies;and a certification that no compensationwill be charged or paid for theindividual representative's services. Thedesignation, in either form, must be filedwith the agency of original jurisdictionor, if the appellate record has beencertified to the Board for review, withthe Board of Veterans' Appeals. Thedesignation will be effective when it isreceived by the agency of originaljurisdiction or, if the appellate recordhas been certified to the Board forreview, by the Board of Veterans'Appeals. A properly filed designationmade prior to appeal will continue to behonored, unless it has been revoked orunless the representative has properlywithdrawn.

(d) Representation of more than oneappellant. An individual recognized asan appellant's representative under thisRule may represent only one appellant.If an individual has been recognized as

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a representative for one appellant andwishes to represent another appellant,he or she must obtain permission to doso from the Office of the GeneralCounsel as provided in J 14.630 of thischapter.(Authority: 38 U.S C. 5903)

§ 20.606 Rule 606. Legal Interns, lawstudents and paralegals.

(a) When services of legal interns,law studcnts ond paralegals may beused. Not more than two legal interns,law students or paralegals may assist anattorney-at-law in the presentation ofevidence and argument in appealsbefore the Board of Veterans' Appealsin Washington, DC. or before travelingSections of the Board at Department ofVeterans Aftairs field facilities.

(b) Consent of appellant. If it iscontemplated that a legal intern, lawstudent, or paralegal will assist in theappeal, written consent must beobtained from the appellant. The writtenconsent must include the name of theveteran; the name of the appellant ifother than the veteran (e.g., a veteran'ssurvivor, a guardian, or a fiduciaryappointed to receive VA benefits on anindividual's behalij: the applicableDepartment of Veterans Affairs filenumber, the name of the attorney-at-law;, the consent of the appellant for theuse of the services of legal interns, lawstudents, or paralegals and for suchindividuals to have access to applicableDepartment of Veterans Affairs records;and the names of the legal interns, lawstudents, or paralegals who will beassisting in the case. In the case ofappeals before the Board in Washington,DC, the signed consent must besubmitted to: Chief, Hearing Section(014B), Board of Veterans' Appeals, 810Vermont Avenue, NW., Washington, DC20420. In the case of appeals beforetraveliig Sections of the Board, theconsent must be presented to thepresiding Member of the travelingSection as noted in paragraph (d).Unless revoked by the appellant, suchconsent will remain effective in theevent the original attorney of record isreplaced by another attorney who is amember of the same law firm or anotherattorney employed by the same legalservices office.

(c) Supervision. Legal interns, lawstudents and paralegals must be underthe direct supervision of a recognizedattorney-at-law in order to prepare andpresent cases before the Board ofVeterans' Appeals.

(d) Hearings. Legal interns, lawstudents and paralegals who desire toparticipate at a hearing before the Boardin Washington, DC. must make advancearrangements with the Chief of the

Hearing Section and submit writtenauthorization from the attoraey namingthe individual who will be participatingin the hearing. In the case ofproceedings before traveling Sections ofthe Board in the field, the attorney-at-law must inform the office of theDepartment of Veterans Affairs officialwho gave notice of the Travel Boardhearing date and time not more than 10days prior to the scheduled hearing datethat the services of a legal intern, lawstudent, or paralegal will be used at thehearing. At the same time, a prehearingconference with the presiding Memberof the traveling Section must berequested. At the conference, the writtenconsent of the appellant for the use ofthe services of such an individualrequired by paragraph (b) must bepresented and agreement reached as tothe individual's role in the hearing. Legalinterns, law students or paralegals maynot present oral arguments at bearingseither in the field or in Washington, DC,unless the recognized attorney-at-law ispresent. Not more than two suchindividuals may make presentations at ahearing. The presiding Member at ahearing on appeal may require that notmore than one such individualparticipate in the examination of anyone witness or impose other reasonablelimitations to ensure orderly conduct ofthe hearing.

(e) Withdrawal of permission for legalinterns, law students, and paralegals toassist in the presentation of an appeal.When properly designated, the attorney-at-law is the recognized representativeof the appellant and is responsible forensuring that an appeal is properlypresented. Legal interns, law students,and paralegals are permitted to assist inthe presentation of an appeal as acourtesy to the attorney-at-law.Permission for a legal intern, lawstudent, or paralegal to prepare andpresent cases before the Board may bewithdrawn by the Chairman at any timeif a lack of competence, unprofessionalconduct, or interference with theappellate process is demonstrated bythat individual.(Authority: 38 U.S.C. 5904, 7105fh3(2}}

§ 20.607 Rule 607. Revocation of arepresentativ.'$ authority to act.

Subject to the provisions of § 20.1304of this part, an appellant may revoke arepresentative's authority to act on hisor her behalf at any time, irrespective ofwhether another representative isconcurrently designated. Written noticeof the revocation must be given to theagency of original jurisdiction or, if theappellate record has been certified tothe Board for review, to the Board ofVeterans' Appeals. The revocation is

effective when notice of the revocationis received by the agency of originaljurisdiction or the Board, as applicable.An appropriate designation of a newrepresentative will automatically revokeany prior designation of representation.If an appellant has limited a designationof representation by an attorney-at-lawto a specific claim under the provisionsof Rule 603, paragraph (a) (§ 20.603(a) ofthis part), or has limited a designation ofrepresentation by an individual to aspecific claim under the provisions ofRule 605, paragraph (c) (§ 20.605(c) ofthis part), such specific authorityconstitutes a revocation of an existingrepresentative's authority to act onlywith respect to, and during the pendencyof, that specific claim. Following thefinal determination of that claim, theexisting representative's authority to actwill be automatically restored in full,unless otherwise revoked.(Authority: 38 U.S.C. 5901-5904)

§ 20.608 Rule 608. Withdrawal of servicesby a representative.

(a) Withdrawal of services prior tocertification of an appeal. Arepresentative may withdraw servicesas representative in an appeal at anytime prior to certification of the appealto the Board of Veterans' Appeals by theagency of original jurisdiction. Therepresentative must give written noticeof such withdrawal to the appellant andto the agency of original jurisdiction.The withdrawal is effective when noticeof the withdrawal is received by theagency of original jurisdiction.

(b) Withdrawal of services aftercertification of an appeal--(1)Applicability. The restrictions on arepresentative's right to withdrawcontained in this paragraph apply onlyto those cases in which therepresentative has previously agreed toact as representative in an appeal. Inaddition to express agreement, orally orin writing, such agreement shall bepresumed if the representative makes anappearance in the case by acting on anappellant's behalf before the Board inany way after the appellant hasdesignated the representative as such asprovided in § § 20.602 through 20.605 ofthis part. The preceding sentencenotwithstanding, an appearance in anappeal solely to notify the Board that adesignation of representation has notbeen accepted will not be presumed toconstitute such consent.

(2) Procedures. After the agency oforiginal jurisdiction has certified anappeal to the Board of Veterans'Appeals, a representative may notwithdraw services as representative inthe appeal unless good cause is shown

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on motion. Good cause for suchpurposes is the extended illness orincapacitation of an agent admitted topractice before the Department ofVeterans Affairs, an attorney-at-law, orother individual representative: failureof the appellant to cooperate withproper preparation and presentation ofthe appea; or other factors which makethe continuation of representationimpossible, impractical, or unethical.Such motions must be in writing andmust include the name of the veteran.the name of the claimant or appellant ifother than the veteran (e.g., a veteran'ssurvivor, a guardian. or a fiduciaryappointed to receive VA benefits on anindividual's behalf), the applicableDepartment of Veterans Affairs filenumber, and the reason why withdrawalshould be permitted. Such motionsshould not contain information whichwould violate privilegedcommunications or which wouldotherwise be unethical to reveal. Suchmotions must be filed at the followingaddress: Office of Counsel to theChairman (01C), Board of Veterans'Appeals, 810 Vermont Avenue, NW..Washington, DC 20420. Therepresentative must mail a copy of themotion to the appellant, with a returnreceipt requested. The receipt, whichmust bear the signature of the appellant.must then be filed with the Board at thesame address as proof of service of themotion. The appellant may file aresponse to the motion with the Board atthe same address not later than 30 daysfollowing receipt of the copy of themotion. The appellant must mail a copyof any such response to therepresentative, with a return receiptrequested. The receipt, which must bearthe signature of the representative or anemployee of the representative, mustthen be filed with the Board at the sameaddress as proof of service of theresponse. The ruling on the motion willbe made by the Chairman.

(Authority: 38 U.S.C. 5901--904. 7105(a))(Approved by the Office of Management andBudget under control number 2900-0085)

§ 20.609 Rule 609. Payment ofrepresentative's fees In proceedings beforeDepartment of Veterms Affairs fieldpersonnel and before the Board ofVeterns' Appeas.

(a) Applicability of rule. Theprovisions of this section apply to theservices of representatives with respectto benefits under laws administered bythe Department of Veterans Affairs inall proceedings before Department ofVeterans Affairs field personnel orbefore the Board of Veterans' Appealsregardless of whether an appeal hasbeen initiated.

(b) Who may charge fees forrepresentation. Only agents andattorneys-at-law may receive fees fromclaimants or appellants for theirservices. Recognized organizations(including their accreditedrepresentatives when acting as such)and individuals recognized pursuant toRule 005 [§ 20.605 of this part) are notpermitted to receive fees. An attorney-at-law or agent who may also be anaccredited representative of arecognized organization may not receivesuch fees unless he or she has beenproperly designated as representative inaccordance with Rule 603(a) or Rule604(a) (§ 20.603(a) or § 20.604(a) of thispart) in his or her individual capacity.

(c) Circumstances under which feesmay be charged. Except as noted inparagraph (d) of this section, attorneys-at-law and agents may charge claimantsor appellants for their services only if allof the following conditions have beenmet:

(1) A final decision has beenpromulgated by the Board of Veterans'Appeals with respect to the issue, orissues, involved;

(2) The Notice of Disagreement whichpreceded the Board of Veterans'Appeals decision with respect to theissue, or issues, involved was receivedby the agency of original jurisdiction onor after November 18, 1988; and

(3) The attorney-at-law or agent wasretained not later than one yearfollowing the date that the decision bythe Board of Veterans' Appeals withrespect to the issue, or issues, involvedwas promulgated. (This condition willbe considered to have been met withrespect to all successor attorneys-at-lawor agents acting in the continuousprosecution of the same matter if apredecessor was retained within therequired time period.)

(d) Payment of fee by disinterestedthird party. An attorney-at-law or agentmay receive a fee or salary from anorganization, governmental entity, orother disinterested third party forrepresentation of a claimant orappellant even though the conditions setforth in paragraph (c) of this sectionhave not been met.

(e) Fees permitted. Fees permittedunder paragraph (c) for services of anattorney-at-law or agent admitted topractice before the Department ofVeterans Affairs must be reasonable.They may be based on a fixed fee,hourly rate, a percentage of benefitsrecovered, or a combination of suchbases. Factors considered indetermining whether fees arereasonable include:

(1) The extent and type of services therepresentative performed;

(2) The complexity of the case;(3) The level of skill and competence

required of the representative in givingthe services;

(4) The amount of time therepresentative spent on the case;

(5) The results the representativeachieved, including the amount of anybenefits recovered,

(6) The level of review to which theclaim was taken and the level of thereview at which the representative wasretained;

(7) Rates charged by otherrepresentatives for similar services; and

(8) Whether, and to what extent. thepayment of fees is contingent upon theresults achieved.

(f) Presumption of reasonableness.Fees which total no more than 20percent of any past-due benefitsawarded, as defined in paragraph (h)(3)of this section, will be presumed to bereasonable.

(g) Fee agreements. All agreements forthe payment of fees for services ofattorneys-at-law and agents must be inwriting and signed by both the claimantor appellant and the attorney-at-law oragent. The agreement must include thename of the veteran, the name of theclaimant or appellant if other than theveteran (e.g. a veteran's survivor, aguardian, or a fiduciary appointed toreceive VA benefits on an individual'sbehalf), the applicable Department ofVeterans Affairs file number, and thespecific terms under which the amountto be paid for the services of theattorney-at-law or agent will bedetermined. A copy of the agreementmust be filed with the Board ofVeterans' Appeals within 30 days of itsexecution by mailing the copy to thefollowing address: Office of Counsel tothe Chairman (01C), Board of Veterans'Appeals, 810 Vermont Avenue NW..Washington, DC 20420. (Also seeparagraph (h)(4) for informationconcerning additional filingrequirements when fees are to be paidby the Department of Veterans Affairsfrom past-due benefits.)

(h) Payment of fees by Department ofVeterans Affairs directly to an attorney-at-law from post-due benefits. (1)Subject to the requirements of the otherparagraphs of this section, includingparagraphs (c) and (e). The daimant orappellant and an attorney-at-law mayenter into a fee agreement providing thatpayment for the services of the attorney-at-law will be made directly to theattomey-at-4aw by the Department ofVeterans Affairs outof any past-duebenefits awarded as a result of a

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successful appeal to the Board ofVeterans' Appeals or an appellate courtor as a result of a reopened claim beforethe Department following a prior denialof such benefits by the Board ofVeterans' Appeals or an appellate court.Such an agreement will be honored bythe Department only if the followingconditions are met:

(i) The total fee payable (excludingexpenses) does not exceed 20 percent ofthe total amount of the past-due benefitsawarded,

(ii) The amount of the fee is contingenton whether or not the claim is resolvedin a manner favorable to the claimant orappellant, and

(iii) The award of past-due benefitsresults in a cash payment to a claimantor an appellant from which the fee maybe deducted. (An award of past-duebenefits will not always result in a cashpayment to a claimant or an appellant.For example, no cash payment will bemade to military retirees unless there isa corresponding waiver of retirementpay. (See 38 U.S.C. 5304(a) and § 3.750 etseq. of this chapter.))

(2) For purposes of this paragraph, aclaim will be considered to have beenresolved in a manner favorable to theclaimant or appellant if all or any part ofthe relief sought is granted.

(3) For purposes of this paragraph,"past-due benefits" means anonrecurring payment resulting from abenefit, or benefits, granted on appeal orawarded on the basis of a claimreopened after a denial by the Board ofVeterans' Appeals or the lump sumpayment which represents the totalamount of recurring cash paymentswhich accrued between the effectivedate of the award, as determined byapplicable laws and regulations, and thedate of the grant of the benefit by theagency of original jurisdiction, the Boardof Veterans' Appeals, or an appellatecourt.

(i) When the benefit granted onappeal, or as the result of the reopenedclaim, is service connection for adisability, the "past-due benefits" willbe based on the initial disability ratingassigned by the agency of originaljurisdiction following the award ofservice connection. The sum will equalthe payments accruing from the effectivedate of the award to the date of theinitial disability rating decision. If anincreased evaluation is subsequentlygranted as the result of an appeal of thedisability evaluation initially assignedby the agency of original jurisdiction,and if the attorney-at-law represents theclaimant or appellant in that phase ofthe claim, the attorney-at-law will bepaid a supplemental payment at the timethat the appellant is paid retroactive

benefits based upon the increasegranted on appeal, to the extent that theincreased amount of disability is foundto have existed between the initialeffective date of the award following thegrant of service connection and the dateof the rating action implementing theappellate decision granting the increase.

(ii) Unless otherwise provided in thefee agreement between the claimant orappellant and the attorney-at-law, theattorney-at-law's fees will bedetermined on the basis of the totalamount of the past-due benefits eventhough a portion of those benefits mayhave been apportioned to the claimant'sor appellant's dependents.

(iii) If an award is made as the resultof favorable action with respect toseveral issues, the past-due benefits willbe calculated only on the basis of thatportion of the award which results fromaction taken on issues concerning whichthe criteria in paragraph (c) of thissection have been met.

(4) In addition to filing a copy of thefee agreement with the Board ofVeterans' Appeals as required byparagraph (g) of this section, theattorney-at-law must notify the agencyof original jurisdiction within 30 days ofthe date of execution of the agreementof the existence of an agreementproviding for the direct payment of feesout of any benefits subsequentlydetermined to be past due and providethat agency with a copy of the feeagreement. Payment of the attorney'sshare of any past due benefits will bemade at the same time that any suchbenefits are paid to the claimant orappellant.

(i) Motion for review of feeagreement. The Board of Veterans'Appeals may review a fee agreementbetween a claimant or appellant and anattorney-at-law or agent upon its ownmotion or upon the motion of any partyto the agreement and may order areduction in the fee called for in theagreement if it finds that the fee isexcessive or unreasonable in light of thestandards set forth in paragraph (e) ofthis section. Such motions must be inwriting and must include the name ofthe veteran, the name of the claimant orappellant if other than the veteran (e.g.,a veteran's survivor, a guardian, or afiduciary appointed to receive VAbenefits on an individual's behalf), andthe applicable Department of VeteransAffairs file number. Such motions mustset forth the reason, or reasons, why thefee called for in the agreement isexcessive or unreasonable. Suchmotions (other than motions by theBoard) must be filed at the followingaddress: Office of Counsel to theChairman (01C), Board of Veterans'

Appeals, 810 Vermont Avenue, NA,Washington, DC 20420. They should beaccompanied by all such evidence asthe moving party desires to submit. Themoving party must mail a copy of themotion and accompanying evidence toall other parties to the agreement, withreturn receipts requested. The receipts,which must bear the signatures of theother parties, must then be filed with theBoard at the same address as proof ofservice of the motion. The other partiesmay file a response to the motion, withany accompanying evidence, with theBoard at the same address not later than30 days following the date of receipt ofthe copy of the motion. A copy of anysuch response and any accompanyingevidence must be mailed to the movingparty, with a return receipt requested.The receipt, which must bear thesignature of the moving party, must thenbe filed with the Board at the sameaddress as proof of service of theresponse. The ruling on the motion willbe by the Chairman. Once there hasbeen a ruling on the motion, an ordershall issue which will constitute thefinal decision of the Board with respectto the motion. If a reduction in the fee isordered, the attorney or agent mustcredit the account of the claimant orappellant with the amount of thereduction and refund any excesspayment on account to the claimant orappellant not later than the expiration ofthe time within which the ruling may beappealed to the Court of VeteransAppeals. Failure to do so may result inproceedings under § 14.633 of thischapter to terminate the attorney's oragent's right to practice before theDepartment of Veterans Affairs and theBoard of Veterans' Appeals and/orprosecution under the provisions of 38U.S.C. 5905.(Authority: 38 U.S.C. 5902, 5904, 5905)(Approved by the Office of Management andBudget under control number 2900-0085)

§ 20.610 Rule 610. Payment ofrepresentative's expenses In proceedingsbefore Department of Veterans Affairs fieldpersonnel and before the Board ofVeterans' Appeals.

(a) Applicability of rule. Theprovisions of this section apply to theservices of representatives with respectto benefits under laws administered bythe Department of Veterans Affairs inall proceedings before Department ofVeterans Affairs field personnel orbefore the Board of Veterans' Appealsregardless of whether an appeal hasbeen initiated.

(b) General. Any representative maybe reimbursed for expenses incurred onbehalf of a veteran or a veteran's

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dependents or survivors in theprosecution of a claim for benefitspending before the Department ofVeterans Affairs. Whether such arepresentative will be reimbursed forexpenses and the method of suchreimbursement is a matter to bedetermined by the representative andthe claimant or appellant. Expenses arenot payable directly to therepresentative by the Department ofVeterans Affairs out of benefitsdetermined to be due to a claimant orappellant. Unless required inconjunction with a motion for the reviewof expenses filed in accordance withparagraph (d) of this section, agreementsfor the reimbursement of expenses neednot be filed with the Department ofVeterans Affairs or the Board ofVeterans' Appeals.

(c) Nature of expenses subject toreimbursement. "Expenses" includenonrecurring expenses incurred directlyin the prosecution of a claim for benefitsupon behalf of a claimant or appellant.Examples of such expenses includeexpenses for travel specifically to attenda hearing with respect to a particularclaim, the cost of copies of medicalrecords or other documents obtainedfrom an outside source, the cost ofobtaining the services of an expertwitness or an expert opinion, etc."Expenses" do not include normaloverhead costs of the representativesuch as office rent, utilities, the cost ofobtaining or operating office equipmentor a legal library, salaries of therepresentative and his or her supportstaff, the cost of office supplies, etc.

(d) Expense charges permitted-motion for review of expenses.Reimbursement for the expenses of arepresentative may be obtained only ifthe expenses are reasonable. The Boardof Veterans' Appeals may reviewexpenses charged by a representativeupon the motion of the claimant orappellant and may order a reduction inthe expenses charged if it finds that theyare excessive or unreasonable. Suchmotions must be in writing. They mustinclude the name of the veteran, thename of the claimant or appellant ifother than the veteran (e.g., a veteran'ssurvivor, a guardian, or a fiduciaryappointed to receive VA benefits on anindividual's behalf), and the applicableDepartment of Veterans Affairs filenumber. They must specifically identifywhich expenses charged are felt to beunreasonable and the reason, orreasons, why the amount of theexpenses is felt to be excessive orunreasonable. Such motions must befiled at the following address: Office ofCounsel to the Chairman (01C), Board of

Veterans' Appeals, 810 Vermont AvenueNW.. Washington, DC 20420. Theyshould be accompanied by all suchevidence as the moving party desires tosubmit. The appellant or claimant, asapplicable, must mail a copy of themotion and any accompanying evidenceto the representative, with a returnreceipt requested. The receipt, whichmust bear the signature of therepresentative or an employee of therepresentative, must then be filed withthe Board at the same address as proofof service of the motion. Therepresentative may file a response to themotion, with any accompanyingevidence, with the Board at the sameaddress not later than 30 days followingthe date of receipt of the copy of themotion. The representative must mail acopy of any such response and anyaccompanying evidence to theappellant, with a return receiptrequested. The receipt, which must bearthe signature of the alpellant, must thenbe filed with the Board at the sameaddress as proof of service of theresponse. The ruling on the motion willbe by the Chairman. Factors consideredin determining whether expenses areexcessive or unreasonable include thecomplexity of the case, the potentialextent of benefits recoverable, whethertravel expenses are in keeping withexpenses normally incurred by otherrepresentatives, etc. Once there hasbeen a ruling on the motion, an ordershall issue which will constitute thefinal decision of the Board with respectto the motion.(Authority: 38 U.S.C. 5904)(Approved by the Office of Management andBudget under control number 2900-0085)

§ 20.611 RuMe61l.Continuetlonofrepresenalon folowing death of aclaimant or appellant.

A recognized organization, attorney,agent, or person properly designated torepresent a claimant or appellant will berecognized as the representative of hisor her survivors for a period of one yearfollowing the death of the claimant orappellant. A representative may alsocontinue to act with respect to anyappeal pending upon the death of theclaimant or appellant until such time asa final decision has been promulgatedby the Board of Veterans' Appeals. Theprovisions of this section do not apply toany survivor who has appointed anotherrepresentative in accordance with theserules or who has indicated in writingthat he or she does not wish to berepresented by the claimant's orappellant's representative. Writtennotice that a survivor does not wish tobe represented by the claimant's orappellant's representative will be

effective when received by the agencyof original jurisdiction or, if the case hasbeen certified to the Board for appellatereview, by the Board of Veterans'Appeals.(Authority: 38 U.S.C. 5902-5904)

§§ 20.612-20.699 [Reserved)

Subpart H---lealngs on Appeal

§ 20.700 Rule 700. General.(a) Right to a hearing. A hearing on

appeal will be granted if an appellant, oran appellant's representative acting onhis or her behalf, expresses a desire toappear in person.

(b) Purpose of hearing. The purpose ofa hearing is to receive argument andtestimony relevant and material to theappellate issue. it is contemplated thatthe appellant and witnesses, if any, willbe present. A personal hearing will notnormally be scheduled solely for thepurpose of receiving argument by arepresentative. Such argument should besubmitted in the form of a written brief.Oral argument may also be submitted onaudio cassette for transcription for therecord in accordance with paragraph (d)of this section. Requests forappearances by representatives alone topersonally present argument toMembers of the Board may be granted ifgood cause is shown. Whether goodcause has been shown will bedetermined by the presiding Member ofthe hearing panel involved.

(c) Nonadversarial proceedings.Hearings conducted by and for theBoard are ex parte in nature andnonadversarial. Parties to the hearingwill be permitted to ask questions,including follow-up questions, of allwitnesses but cross-examination willnot be permitted. Proceedings will notbe limited by legal rules of evidence, butreasonable bounds of relevancy andmateriality will be maintained. Thepresiding Member may set reasonabletime limits for the presentation ofargument and may exclude documentaryevidence, testimony, and/or argumentwhich is not relevant or material to theissue, or issues, being considered orwhich is unduly repetitious.

(d) Informal hearings. This term isused to describe situations in which theappellant cannot, or does not wish to,appear. In the absence of the appellant,the authorized representative maypresent oral arguments, not exceeding 30minutes in length, to the Board on anaudio cassette without personallyappearing before a Board of Veterans'Appeals hearing panel. These argumentswill be transcribed by Board personnelfor subsequent review by the panel

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members. This procedure will not beconstrued to satisfy an appellant'srequest to appear in person.(Authority: 38 U.S.C. 7102, 7104(a), 7105(a))

§ 20.701 Rule 701. Who may present oralargument

Only the appellant and/or his or herauthorized representative may appearand present argument in support of anappeal. At the request of an appellant, aVeterans Benefits Counselor of theDepartment of Veterans Affairs maypresent the appeal at a hearing beforethe Board of Veterans' Appeals orbefore Department of Veterans Affairsfield personnel acting for the Board.(Authority: 38 U.S.C. 7102, 7104(a), 7105)

§ 20.702 Rule 702. Scheduling and noticeof hearings conducted by the Board ofVeterans' Appeals In Washington, DC, andby agency of original jurisdiction personnelacting on behalf of the Board of Veterans'Appeals at field facilities.

(a) General. To the extent thatofficials scheduling hearings for or onbehalf of the Board of Veterans' Appealsdeternine that necessary physicalresources and qualified personnel areavailable, hearings will be scheduled atthe convenience of appellants and theirrepresentatives, with consideration ofthe travel distance involved. While aStatement of the Case should beprepared prior to the hearing, it is not aprerequisite for a hearing and anappellant may request that the hearingbe scheduled prior to issuance of theStatement of the Case.(Authority: 38 U.S.C. 7102, 7104(a), 7105(a))

(b) Notification of hearing. When ahearing is scheduled, the personrequesting it will be notified of its timeand place, and of the fact that theGovernment may not assume anyexpense incurred by the appellant, therepresentative or witnesses attendingthe hearing.(Authority: 38 U.S.C. 7102. 7104(a), 7105(a))

(c) Requests for changes in hearingdates. (1) The appellant or therepresentative may request a differentdate for the hearing within 60 days fromthe date of the letter of notification ofthe time and place of the hearing, or notlater than two weeks prior to thescheduled hearing date, whichever isearlier. The request must be in writing,but the grounds for the request need notbe stated. Only one such request for achange of the date of the hearing will begranted, subject to the interests of otherparties if a simultaneously contestedclaim is involved. In the case of hearingsto be conducted by the Board ofVeterans' Appeals in Washington, DC,such requests for a new hearing date

must be filed with: Chief, HearingSection (014B), Board of Veterans'Appeals, 810 Vermont Avenue, NW.,Washington, DC 20420. In the case ofhearings conducted for the Board byagency of original jurisdiction personnel,the requests must be filed with the officeof the official of the Department ofVeterans Affairs who signed the noticeof the original hearing date.

(2) After the period described inparagraph (c)(1) of this section haspassed, or after one change in thehearing date is granted based on arequest received during such period, thedate of the hearing will become fixed.After a hearing date has become fixed,an extension of time for appearance at ahearing will be granted only for goodcause, with due consideration of theinterests of other parties if asimultaneously contested claim isinvolved. Examples of good causeinclude, but are not limited to, illnecs ofthe appellant and/or representative,difficulty in obtaining necessary records,and unavailability of a necessarywitness. The motion for a new hearingdate must be in writing and mustexplain why a new hearing date isnecessary. If good cause is shown, thehearing will be rescheduled for the nextavailable hearing date after theappellant or his or her representativegives notice that the contingency whichgave rise to the request forpostponement has been removed.Ordinarily, however, hearings will notbe postponed more than 30 days. Anadverse determination by the agency oforiginal jurisdiction as to whether goodcause for postponement has been shownis an appealable issue. In the case of ahearing conducted by the Board ofVeterans' Appeals in Washington, DC,whether good cause for establishing anew hearing date has been shown willbe determined by the presiding Memberof the hearing panel assigned to conductthe hearing. In the case of hearings to beconducted by the Board of Veterans'Appeals in Washington, DC, the motionfor a new hearing date must be filedwith: Chief, Hearing Section (014B),Board of Veterans' Appeals, 810Vermont Avenue, NW., Washington, DC20420. In the case of hearings conductedfor the Board by agency of originaljurisdiction personnel, the motion mustbe filed with the office of the official ofthe Department of Veterans Affairs whosigned the notice of the original hearingdate.(Authority: 38 U.S.C. 7102, 7104(a), 7105(a),7105A)

(d) Failure to appear for a scheduledhearing. If an appellant (or when ahearing only for oral argument by a

representative has been authorized, therepresentative) fails to appear for ascheduled hearing and a request forpostponement has not been receivedand granted, the case will be processedas though the request for a hearing hadbeen withdrawn. No further request fora hearing will be granted in the sameappeal unless such failure to appear waswith good cause and the cause for thefailure to appear arose under suchcircumstances that a timely request forpostponement could not have beensubmitted prior to the scheduled hearingdate. A motion for a new hearing datefollowing a failure to appear must be inwriting; must be submitted not morethan 15 days following the originalhearing date; and must set forth thereason, or reasons, for the failure toappear at the originally scheduledhearing and the reason, or reasons, whya timely request for postponement couldnot have been submitted. In the case ofhearings to be conducted by the Boardof Veterans' Appeals in Washington,DC, the motion must be filed with: Chief,Hearing Section (014B), Board ofVeterans' Appeals, 810 VermontAvenue, NW., Washington, DC 20420. Inthe case of hearings conducted for theBoard by agency of original jurisdictionpersonnel, the motion must be filed withthe office of the official of theDepartment of Veterans Affairs whosigned the notice of the original hearingdate. If good cause is shown, the hearingwill be rescheduled for the nextavailable hearing date after theappellant or his or her representativegives notice that the contingency whichgave rise to the failure to appear hasbeen removed. Ordinarily, however,hearings will not be postponed morethan 30 days. An adverse determinationby the agency of original jurisdiction asto whether good cause for failure toappear has been shown is an appealableissue. In the case of hearings before theBoard of Veterans' Appeals inWashington, DC, whether good causefor such failure to appear has beenestablished will be determined by thepresiding Member of the hearing panelto which the case was assigned.(Authority: 38 U.S.C. 7102, 7104(a), 7105(a),7105A)

(e) Withdrawal of hearing requests. Arequest for a hearing may be withdrawnby an appellant at any time before thedate of the hearing. A request for ahearing may not be withdrawn by anappellant's representative without theconsent of the appellant. In the case ofhearings to be conducted by the Boardof Veterans' Appeals in Washington,DC, the notice of withdrawal must be

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sent to: Chief, Hearing Section (014B),Board of Veterans' Appeals, 810Vermont Avenue, NW., Washington, DC20420. In the case of hearings conductedfor the Board by agency of originaljurisdiction personnel, the notice mustbe sent to the office of the official of theDepartment of Veterans Affairs whosigned the notice of the original hearingdate.(Authority: 38 U.S.C. 7102, 7104(a), 7105(a))(Approved by the Office of Management andBudget under control number 2900-0085)§ 20.703 Rule 703. When right to TravelBoard hearing arises.

A Travel Board hearing is a "hearingon appeal". Accordingly, there is noright to a hearing before a travelingSection of the Board until such time as aNotice of Disagreement has been filed.Any request for such a hearing filedwith a Notice of Disagreement, or filedsubsequent to the filing of a Notice ofDisagreement, will be accepted by theagency of original jurisdiction. Requestsfor such hearings before a Notice ofDisagreement has been filed, or after theBoard has entered a final decision in thecase on the issue (or issues) appealedwill be rejected, except for requests forsuch hearings after a Notice ofDisagreement has been filed appealing adenial of benefits in a reopened claimwhich followed a prior Board decisionor after a motion for reconsideration of aprior Board decision has been granted.(Authority: 38 U.S.C. 7105(a), 7110)

§ 20.704 Rule 704. Scheduling and noticeof hearings conducted by travelingSections of the Board of Veterans' Appealsat Department of Veterans Affairs fieldfacilities.

(a) General. Travel Board hearings areconducted by traveling Sections of theBoard of Veterans' Appeals duringprescheduled visits to Department ofVeterans Affairs facilities havingadequate physical resources andpersonnel for the support of suchhearings. The hearings will be scheduledduring such visits in the order in whichrequests for such hearings were receivedby the agency of original jurisdiction.Requests for Travel Board hearings mustbe submitted to the agency of originaljurisdiction, in writing, and should notbe submitted directly to the Board ofVeterans' Appeals.

(b) Notification of hearing. When ahearing is scheduled, the personrequesting it will be notified of its timeand place, and of the fact that theGovernment may not assume anyexpense incurred by the appellant, therepresentative or witnesses attendingthe hearing.

(c) Requests for changes in hearingdates. Requests for a change in a TravelBoard hearing date may be made at anytime up to two weeks prior to thescheduled date of the hearing if goodcause is shown. Such requests must bein writing, must explain why a newhearing date is necessary, and must befiled with the office of the official of theDepartment of Veterans Affairs whosigned the notice of the original hearingdate. Examples of good cause include,but are not limited to, illness of theappellant and/or representative,difficulty in obtaining necessary records,and unavailability of a necessarywitness. If good cause is shown, theTravel Board hearing will berescheduled for the next availableTravel Board hearing date after theappellant or his or her representativegives notice that the contingency whichgave rise to the request forpostponement has been removed. Ifgood cause is not shown, the appellantand his or her representative will bepromptly notified and given anopportunity to appear at the hearing aspreviously scheduled. If the appellantelects not to appear at the prescheduleddate, the request for a Travel Boardhearing will be considered to have beenwithdrawn. In such cases, however, therecord will be submitted to the presidingMember of the traveling Section forreview when the traveling Section of theBoard arrives at the agency of originaljurisdiction to conduct Travel Boardhearings. If the presiding Member doesnot concur with the determination that.good cause has not been shown, theTravel Board hearing will berescheduled for the next availableTravel Board hearing date after thecontingency which gave rise to therequest for postponement has beenremoved.

(d) Failure to appear for a scheduledhearing. If an appellant (or when ahearing only for oral argument by arepresentative has been authorized, therepresentative) fails to appear for ascheduled Travel Board hearing and arequest for postponement has not beenreceived and granted, the case will beprocessed as though the request for ahearing had been withdrawn. No furtherrequest for a hearing will be granted inthe same appeal unless such failure toappear was with good cause and thecause for the failure to appear aroseunder such circumstances that a timelyrequest for postponement could nothave been submitted prior to thescheduled hearing date. A motion for anew hearing date following a failure toappear for a scheduled Travel Boardhearing must be in writing, must be filedwithin 15 days of the originally

scheduled hearing date, and mustexplain why the appellant failed toappear for the hearing and why a timelyrequest for a new hearing date could nothave been submitted. Such motionsmust be filed with: Travel BoardSecretary (0141F1), Board of Veterans'Appeals, 810 Vermont Avenue, NW.,Washington, DC 20420. If good cause isshown, the hearing will be rescheduledfor the next available hearing date afterthe contingency which gave rise to thefailure to appear has been removed.Whether good cause for such failure toappear has been established will bedetermined by the presiding Member ofthe traveling Section of the Board. Ifgood cause is shown, the Travel Boardhearing will be rescheduled for the nextavailable Travel Board hearing dateafter the appellant or his or herrepresentative gives notice that thecontingency which gave rise to thefailure to appear has been removed.

(e) Withdrawal of Travel Boardhearing requests. A request for a TravelBoard hearing may be withdrawn by anappellant at any time before the date ofthe hearing. A request for a TravelBoard hearing may not be withdrawn byan appellant's representative withoutthe consent of the appellant. Notices ofwithdrawal must be forwarded to theoffice of the Department of VeteransAffairs official who signed the notice ofthe hearing date.(Authority: 38 U.S.C. 7104(a), 7110)(Approved by the Office of Management andBudget under control number 2900-0085)

§ 20.705 Rule 705. Where hearings onappeal are conducted.

(a) General. A hearing on appeal maybe held in one of the following places atthe option of the appellant:

(1) Before a Section of the Board ofVeterans' Appeals in Washington, DC,

(2) Before a traveling Section of theBoard of Veterans' Appeals, or

(3) Before appropriate personnel in theDepartment of Veterans Affairs facilityhaving original jurisdiction over theclaim at issue, acting as a hearingagency for the Board of Veterans'Appeals. Personnel conducting suchhearings as agents for the Board ofVeterans' Appeals will allow theappellant and/or representative topresent any argument and testimony, aswell as any witnesses before the panel,subject to the exclusion of testimony,documentary evidence, and/or argumentwhich is not relevant or material to theissues being considered or which isunduly repetitious. Rule 706 (§ 20.700 ofthis part) and Rules 709 through 713(§ § 20.709-20.713 of this part) areapplicable to such hearings.

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(b) Request for hearing at an alternateDepartment of Veterans Affairs fieldfacility. If the appellant desires ahearing before Department of VeteransAffairs personnel acting as a hearingagency for the Board of Veterans'Appeals as specified in paragraph (a)(3)of this section, but resides within thejurisdiction of, or in closer proximity to,a Department of Veterans Affairsfacility other than the one that renderedthe determination at issue, the appellantmay request that the hearing beconducted at the more convenientfacility. That request will be grantedupon the certification of the director ofthe second facility that that facility hasappropriate physical and personnelresources, including personnel withexpertise in the issues involved,available to conduct such a hearingwithin a reasonable period of time.(Authority: 38 U.S.C. 7102, 7104(a), 7105(a),7110)

§ 20.706 Rule 706. Functions of thepresiding Member.

The presiding Member of a hearingpanel is responsible for the conduct ofthe hearing, administration of the oathor affirmation, and for ruling onquestions of procedure. The presidingMember will assure that the course ofthe hearing remains relevant to theissue, or issues, on appeal and that thereis no cross-examination of the parties orwitnesses. The presiding Member willtake such steps as may be necessary tomaintain good order at hearings andmay terminate a hearing or direct thatthe offending party leave the hearing ifan appellant, representative, or witnesspersists in disruptive behavior.(Authority: 38 U.S.C. 7102, 7104(a). 7105(a))

§ 20.707 Rule 707. When a hearing panelmakes the final appellate decision.

(a) Hearings in Washington, DC.Hearings held before a Section of theBoard of Veterans' Appeals inWashington, DC, are normally heldbefore Members who will make the finaldecision on the appeal.

(b) Hearings held before travelingSections of the Board. Hearings heldbefore traveling Board Sections arenormally held before Members who willmake the final decision on the appealunless an issue on appeal involvesradiation, Agent Orange, or asbestosexposure; the case involves thereconsideration of a prior Board ofVeterans' Appeals decision; or thehearing panel consists of fewer thanthree Members of the Board. Appealsinvolving radiation, Agent Orange, orasbestos exposure issues will bedecided by Board Members specializingin those issues. Decisions in appeals

involving reconsideration of a priorBoard of Veterans' Appeals decision onthe same issue, or issues, may involveBoard Members in addition to thoseMembers making up the travelingSection. An expanded reconsiderationSection considering issues involvingpost-traumatic stress disorder orradiation, Agent Orange, or asbestosexposure will include both the travelingSection and Board Members specializingin those issues. If a Travel Board Sectionis comprised of fewer than three BoardMembers, the Chairman may assign anadditional Member, or Members, toconstitute a three-Member Sectionwhich will make the final decision inWashington, DC.(Authority: 38 U.S.C. 7102, 7104(a), 7110)

§ 20.708 Rule 708. Prehearlng conference.An appellant's authorized

representative may request a prehearingconference with the presiding Memberof a hearing panel in order to clarify theissues to be considered at a hearing onappeal, obtain rulings on theadmissibility of evidence, developstipulations of fact, establish the lengthof argument which will be permitted, ortake other steps which will make thehearing itself more efficient andproductive. With respect to hearings tobe held before Members of the Board atWashington, DC, arrangements for aprehearing conference must be madethrough: Chief, Hearing Section (014B),Board of Veterans' Appeals, 810Vermont Avenue, NW., Washington, DC20420. Requests for prehearingconferences in cases involving hearingsto be held before traveling Sections ofthe Board and hearings to be held beforeDepartment of Veterans Affairspersonnel acting as agents for the Boardmust be addressed to the office of theDepartment of Veterans Affairs officialwho signed the letter giving notice of thetime and place of the hearing.(Authority: 38 U.S.C. 7102, 7104(a), 7105(a))

§ 20.709 Rule 709. Procurement ofadditional evidence fouowing a hearing.

If it appears during the course of ahearing that additional evidence wouldassist in the review of the questions atissue, the presiding Member may directthat the record be left open so that theappellant and his or her representativemay obtain the desired evidence. Thepresiding Member will determine theperiod of time during which the recordwill stay open, considering the amountof time estimated by the appellant orrepresentative as needed to obtain theevidence and other factors adducedduring the hearing. Ordinarily, theperiod will not exceed 60 days, and will

be as short as possible in order thatappellate consideration of the case notbe unnecessarily delayed.(Authority: 38 U.S.C. 7102. 7104(a), 7105(a))

§ 20.710 Rule 710. Witnesses at hearings.(a) General. The testimony of

witnesses, including appellants, will beheard. Testimony may includepresentations by Members of theCongress or Congressional staffmembers appearing on an appellant'sbehalf.

(b) Testimony under oath. Alltestimony must be given under oathunless excused because of religiousprinciples or other good cause. If thewitness declines to take an oath, he orshe must be informed that testimonywill be permitted on affirmation. Thewitness must then be requested to makea solemn declaration as to the truth ofthe testimony about to be given. Thewitness may use such words as he orshe considers binding on his or herconscience. Administration of the oathfor the sole purpose of presentingcontentions and argument is notrequired.(Authority: 38 U.S.C. 7102, 7104(a), 7105(a))

§20.711 Rule 711. Subpoenas.(a) General. An appellant, or his or

her representative, may arrange for theproduction of any tangible evidence orthe voluntary appearance of anywitnesses desired. When necessaryevidence cannot be obtained in anyother reasonable way, the appellant, orhis or her representative, may move thata subpoena be issued to compel theattendance of witnesses residing within100 miles of the place where a hearingon appeal is to be held and/or to compelthe production of tangible evidence. Asubpoena will not be issued to compelthe attendance of Department ofVeterans Affairs adjudicatorypersonnel.

(b) Contents of motion for subpoena.The motion for a subpoena must be inwriting, must clearly show the name andaddress of each witness to besubpoenaed, must clearly identify alldocumentary or other tangible evidenceto be produced, and must explain whythe attendance of the witness and/or theproduction of the tangible evidencecannot be obtained without a subpoena.

(c) Where motion for subpoena is tobe filed. In cases in which the appellaterecord has been transferred to the Boardof Veterans' Appeals in Washington,DC, motions for a subpoena must befiled with the Office of Counsel to theChairman (01C), Board of Veterans'Appeals, 810 Vermont Avenue, NW.,Washington, DC 20420. In those cases

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where the appellate record has not beentransferred to the Board, such motionsmust be filed with the Director of theDepartment of Veterans Affairs facilitywhere the appellate record is located.

(d) When motion for subpoena is to befiled in cases involving a hearing onappeal. Motions for the issuance of asubpoena for the attendance of awitness, or the production of documentsor other tangible evidence, at a hearingon appeal must be filed not later than 30days prior to the hearing date.

(e) Ruling on motion for subpoena. Incases in which the appellate record hasbeen transferred to the Board ofVeterans' Appeals in Washington, DC,the ruling on the motion will be made bythe Chairman. In those cases where theappellate record has not beentransferred to the Board, the ruling onthe motion will be made by the Directorof the Department of Veterans Affairsfacility where the appellate record islocated. In cases where the productionof documents or other tangible evidenceis sought, the granting of the motion maybe conditioned upon the advancementby the appellant of the reasonable costof producing the books, papers,documents, or other tangible evidencerequested. The question of whetherdenial of a motion for a subpoena by aDirector of a Department of VeteransAffairs facility was proper may beappealed as a part of the overall appeal,but is not subject to a separateinterlocutory appeal.

(f) Fees. Any person who is requiredto attend a hearing as a witness shall beallowed and paid the same fees andmileage as are paid witnesses in thedistrict courts of the United States. Asubpoena will not be served unless thatparty on whose behalf the subpoena isissued delivers a check in an amountequal to the fee for one day's attendanceand the mileage allowed by law, madepayable to the witness, to the officialissuing the subpoena. Except for checkson the business accounts of attorneys-at-law, agents, and recognized serviceorganizations, such checks must be inthe form of certified checks or cashierschecks.

(g) Service of subpoenas. The officialissuing the subpoena will serve thesubpoena by certified mail, returnreceipt requested. The check for feesand mileage described in paragraph (f)of this section shall be mailed with thesubpoena. The receipt, which must bearthe signature of the witness or of thecustodian of the tangible evidence, anda copy of the subpoena will be filed inthe claims folder, loan guaranty folder,or other applicable Department ofVeterans Affairs records folder.

(h) Motion to quash or modifysubpoena. If an individual served with asubpoena considers the subpoena to beunreasonable or oppressive, he or shemay move that the subpoena bequashed or modified. Such motions mustbe in writing and must explain why thesubpoena is unreasonable or oppressiveand what relief is sought. Such motionsmust be filed with the office of theofficial who issued the subpoena notmore than 10 days following receipt ofthe subpoena. Rulings on such motionswill be made by the official who issuedthe subpoena, who will inform allinterested parties of the ruling inwriting. The quashing of any subpoenashall be conditional upon the return ofthe check for fees and mileage to theparty on whose behalf the subpoenawas issued. The question of whether theruling by a Director of a Department ofVeterans Affairs facility on a motion toquash or modify a subpoena was propermay be appealed as a part of the overallappeal, but is not subject to a separateinterlocutory appeal.(Authority: 38 U.S.C. 5711, 7102(c), 7104(a))

§ 20.712 Rule 712. Expenses of appellants,representatives, and witnesses Incident tohearings not reimbursable by theGovernment

No expenses incurred by an appellant,representative, or witness incident toattendance at a hearing may be paid bythe Government.(Authority: 38 U.S.C. 111)

§ 20.713 Rule 713. Hearings Insimultaneously contested claims.

(a) General. If a hearing is scheduledfor any party to a simultaneouslycontested claim, the other contestingclaimants and their representatives, ifany, will be notified and afforded anopportunity to be present. The appellantwill be allowed to present openingtestimony and argument. Thereafter, anyother contesting party who wishes to doso may present testimony and argument.The appellant will then be allowed anopportunity to present testimony andargument in rebuttal. Cross-examinationwill not be allowed.

(b) Requests for changes in hearingdates. Any party to a simultaneouslycontested claim may request a change ina hearing date in accordance with theprovisions of Rule 702, paragraph (c)[§ 20.702(c) of this part), or Rule 704,paragraph (c) (§ 20.704(c) of this part),as applicable. In order to obtain a newhearing date under the provisions ofRule 702, paragraph {c)(1), the consent ofall other interested parties must beobtained and submitted with the requestfor a new hearing date. If such consentis not obtained, paragraph (c)(2) of that

rule wil apply even though the requestis submitted within 60 days from thedate of the letter of notification of thetime and place of the hearing. A copy ofany motion for a new hearing daterequired by these rules must be mailedto all other interested parties bycertified mail, return receipt requested.The receipts, which must bear thesignatures of the other interestedparties, and a letter explaining that theyrelate to the motion for a new hearingdate and containing the applicableDepartment of Veterans Affairs filenumber must be filed at the sameaddress where the motion was filed asproof of service of the motion. Eachinterested party will be allowed a periodof 10 days from the date that the copy ofthe motion was received by that party tofile written argument in response to themotion.

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

§ 20.714 Rule 714. Record of hearing.(a) Board of Veterans' Appeals. A

hearing before Members of the Board,whether held in Washington, DC, orbefore a traveling Section, will berecorded on audio tape. In thoseinstances where a complete writtentranscript is prepared, that transcriptwill be the official record of the hearingand the tape recording will be retainedat the Board for a period of 12 monthsfollowing the date of the hearing as aduplicate record of the hearing. Taperecordings of hearings that have notbeen transcribed will be maintained bythe Board as the official record ofhearings and retained in accordancewith retention standards approved bythe National Archives and RecordsAdministration. A transcript will beprepared and incorporated as a part ofthe claims folder, loan guaranty folder,or other applicable Department ofVeterans Affairs records folder if one ormore of the following conditions havebeen met:

(1) The appellant or representativehas shown good cause why such awritten transcript should be prepared.(The presiding Member of the hearingpanel will determine whether goodcause has been shown. Requests thatrecordings of hearing proceedings betranscribed may be made orally at thetime of the hearing. Requests madesubsequent to the hearing must be inwriting and must explain whytranscription is necessary. They must befiled with: Chief, Hearing Section (014B),Board of Veterans' Appeals, 810Vermont Avenue, NW., Washington, DC20420.)

(2) Testimony and/or argument hasbeen presented at the hearing pertaining

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to an issue which is to be remanded tothe agency of original jurisdiction forfurther development or an issue which isnot in appellate status which is to bereferred to the agency of originaljurisdiction for consideration.

(3) The hearing involves an issuerelating to National Service LifeInsurance or United States GovernmentLife Insurance.

(4) With respect to hearingsconducted by a traveling Section of theBoard:

(i) An issue on appeal involvesradiation, Agent Orange, or asbestosexposure;

(ii) The appeal involvesreconsideration of a prior Board ofVeterans' Appeals decision on the sameissue; or

(5) The Board's decision on an issueaddressed at the hearing has beenappealed to the United States Court ofVeterans Appeals.

(b) Field offices. The hearingproceedings before field office personnelafter the filing of a Notice ofDisagreement will be recorded and acopy of the complete written transcriptincorporated as a part of the claimsfolder, loan guaranty folder, or otherapplicable Department of VeteransAffairs records folder as the officialrecord of the hearing.

(c) Copy of hearing tape recording orwritten transcript. One copy of the taperecording of hearing proceedings beforethe Board of Veterans' Appeals, or thewritten transcript of such proceedingwhen such a transcript has beenprepared in accordance with theprovisions of paragraph (a) of thissection, and/or a copy of the writtentranscript of field office appellatehearing proceedings shall be furnishedwithout cost to the appellant orrepresentative if a request is made inaccordance with § 1.577 of this chapter.(Authority: 38 U.S.C. 7102, 7104(a), 7105(a))

§ 20.715 Rule 715. Recording of hearingby appellant or representative.

An appellant or representative mayrecord the hearing with his or her ownequipment. Filming, videotaping ortelevising the hearing may only beauthorized when prior written consent isobtained from all appellants andcontesting claimants, if any, and made amatter of record. In no event will suchadditional equipment be used if itinterferes with the conduct of thehearing or the official recordingapparatus. In all such situations,advance arrangements must be made. Inthe case of hearings held beforeMembers of the Board of Veterans'Appeals in Washington. DC,arrangements must be made with the

Chief of the Hearing Section (014B),Board of Veterans' Appeals, 810Vermont Avenue, NW., Washington, DC20420. In the case of hearings heldbefore traveling Sections of the Board orbefore Department of Veterans Affairspersonnel acting as agents for the Board,arrangements must be made through theoffice of the Department of VeteransAffairs official who signed the lettergiving notification of the time and placeof the hearing.(Authority: 38 U.S.C. 7102. 7104(a), 7105(a))

§ 20.716 Rule 716. Correction of hearingtranscripts.

The tape recording on file at the Boardof Veterans' Appeals or a transcriptprepared by the Board of Veterans'Appeals or by Department of VeteransAffairs personnel acting as agents forthe Board is the only official record of ahearing on appeal. Alternate transcriptversions prepared by the appellant andrepresentative will not be accepted. Ifan appellant wishes to seek correctionof perceived errors in a hearingtranscript, the appellant or his or herrepresentative should move for thecorrection of the hearing transcriptwithin 30 days after the date that thetranscript is mailed to the appellant. Themotion must be in writing and mustspecify the error, or errors, in thetranscript and the correct wording to besubstituted. In the case of hearings heldbefore Members of the Board ofVeterans' Appeals, whether inWashington, DC, or in the field, themotion must be filed with the Chief,Hearing Section (014B), Board ofVeterans' Appeals, 810 VermontAvenue, NW., Washington, DC 20420. Inthe case of hearings held beforeDepartment of Veterans Affairspersonnel acting as agents for the Board,the motion must be filed with the officeof the Department of Veterans Affairsofficial who signed the letter givingnotification of the time and place of thehearing. The ruling on the motion will bemade by the presiding Member of thehearing panel concerned.(Authority: 38 U.S.C. 7102, 7104(a), 7105(a),7110)

§ 20.717 Rule 717. Lou of hearing tape.or transcrlpta-motlon for new hearing.

(a) M1otion for new hearing. In theevent that a hearing has not beenrecorded in whole or in part due toequipment failure or other cause, or theofficial transcript of the hearing is lostor destroyed and the recording uponwhich it was based is no longeravailable, an appellant or his or herrepresentative may move for a newhearing. The motion must be in writingand must specify why prejudice would

result from the failure to provide a newhearing.

(b) Time limit for filing motion for anew hearing. The motion will not begranted if there has been no request fora new hearing within a period of 120days from the date of a final Board ofVeterans' Appeals decision or, in casesappealed to the United States Court ofVeterans Appeals, if there has been norequest for a new hearing within areasonable period of time after theappeal to that Court has been filed.

(c) Where motion for a new hearing isfiled. In the case of hearings held beforeMembers of the Board of Veterans'Appeals, whether in Washington, DC, orin the field, the motion must be filedwith: Chief, Hearing Section (014B),Board of Veterans' Appeals, 810Vermont Avenue, NW., Washington, DC20420. In the case of hearings heldbefore Department of Veterans Affairspersonnel acting as agents for the Board,the motion must be filed with the officeof the Department of Veterans Affairsofficial who signed the letter givingnotification of the time and place of thehearing unless the appellant hasreceived notice that the case has beentransferred to the Board of Veterans'Appeals for appellate review or unless afinal Board of Veterans' Appealsdecision has already been promulgatedwith respect to the appeal in question. Insuch cases, the motion must be filedwith the Board at the address specifiedherein.

(d) Ruling on motion for a newhearing. Except as noted hereinafter, theruling on the motion for a new hearingwill be made by the presiding Memberof the hearing panel concerned. If thepresiding Member of the hearing panelis no longer available, the ruling on themotion may be made by any othermember of the hearing panel who isavailable. In cases in which a hearingwas held before Department of VeteransAffairs personnel acting as agents forthe Board and the appellate record hasbeen transferred to the Board ofVeterans' Appeals for appellate review,or in which a final Board of Veterans'Appeals decision has already beenpromulgated with respect to the appealin question, the ruling on the motion willbe by the Chairman of the Board.Factors to be considered in ruling on themotion include, but will not be limiiedto, the extent of the loss of the record inthose cases where only a portion of ahearing tape is unintelligible or only aportion of a transcript has been lost ordestroyed, and the extent andreasonableness of any delay in movingfor a new hearing. If a new hearing isgranted in a case in which a final Board

I I II

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of Veterans' Appeals decision hasalready been promulgated, asupplemental decision will be issued.(Authority: 38 U.S.C. 7102. 7104(a), 7105(a),7110)

§§ 20.710-20.799 [Reserved]

Subpart I--Evidence

§ 20.800 Rule O00. Submisson ofadditional evidence after Initiation ofappeal.

Subject to the limitations set forth inRule 1304 (§ 20.1304 of this part), anappellant may submit additionalevidence, or information as to theavailability of additional evidence, afterinitiating an appeal.(Authority: 38 U.S.C. 7105(d)(1))

§§ 20.801-20.899 [Reserved]

Subpart J-Acton by the Board

§ 20.900 Rule 900. Order of considerationof appeals.

(a) Docketing of appeals. Applicationsfor review on appeal are docketed in theorder in which they are received. Casesreturned to the Board following actionpursuant to a remand assume theiroriginal places on the docket.

(b) Appeals considered in docketorder. Appeals are considered in theorder in which they are entered on thedocket.

(c) Advancement on the docket. Acase may be advanced on the docket ifit involves an interpretation of law ofgeneral application affecting otherclaims or for other good cause.Examples of such good cause includeterminal illness, extreme hardship whichmight be relieved in whole or in part ifthe benefits sought on appeal weregranted. etc. Advancement on thedocket is requested by motion. Suchmotions must be in writing and mustidentify the law of general applicationaffecting other claims or other goodcause involved. They must also includethe name of the veteran, the name of theappellant if other than the veteran (e.g.,a veteran's survivor, a guardian, or afiduciary appointed to receive VAbenefits on an individual's behalf), andthe applicable Department of VeteransAffairs file number. The motion must befiled with: Director, AdministrativeService (014), Board of Veterans'Appeals, 810 Vermont Avenue, NW.,Washington, DC 20420. The ruling on themotion will be by the Chairman' If amotion to advance a case on the docketis denied, the appellant and his or herrepresentative will be immediatelynotified. If the motion to advance a caseon the docket is granted, that fact will

be noted in the Board's decision whenrendered.(Authority: 38 U.S.C. 7107)

§ 20.901 Rule 901. Medical opinions andopinions of the General Counsel.

(a) Opinion of the Chief MedicalDirector. The Board may obtain amedical opinion from the Chief MedicalDirector of the Veterans HealthAdministration of the Department ofVeterans Affairs on medical questionsinvolved in the consideration of anappeal when, in its judgment, suchmedical expertise is needed forequitable disposition of an appeal.(Authority: 38 U.S.C. 5107(a))

(b) Armed Forces Institute ofPathology opinions. The Board mayrefer pathologic material to the ArmedForces Institute of Pathology andrequest an opinion based on thatmaterial.(Authority: 38 U.S.C. 7109(a))

(c) Opinion of the General Counsel.The Board may obtain an opinion fromthe General Counsel of the Departmentof Veterans Affairs on legal questionsinvolved in the consideration of anappeal.(Authority: 38 U.S.C. 7104(c))

(d) Independent medical expertopinions. When, in the judgment of theBoard, additional medical opinion iswarranted by the medical complexity orcontroversy involved in an appeal, theBoard may obtain an advisory medicalopinion from one or more medicalexperts who are not employees of theDepartment of Veterans Affairs.Opinions will be secured, as requestedby the Chairman of the Board, fromrecognized medical schools, universities,clinics, or medical institutions withwhich arrangements for such opinionshave been made by the Secretary ofVeterans Affairs. An appropriate officialof the institution will select theindividual expert, or experts, to give anopinion.(Authority: 38 U.S.C. 7109)

(e) For purposes of this section, theterm "the Board" includes the Chairman,the Vice Chairman, any Deputy ViceChairman, and any Member of a Sectionof the Board before whom a case ispending.(Authority: 38 U.S.C. 5107(a), 7104(c), 7109)

§ 20.902 Rule 902. Filing of requests forthe procurement of opinions.

The appellant or representative mayrequest that the Board obtain an opinionunder Rule 901 (1 20.901 of this part).The request must be in writing. It will begranted upon a showing of good cause,

such as the identification of a complexor controversial medical or legal issueinvolved in the appeal which warrantssuch an opinion.(Authority: 38 U.S.C. 5107(a), 7102(c), 7104(c),7109)

§ 20.903 Rule 903. Notification of opinionssecured by the Board and opportunity forresponse.

When an opinion is requested by theBoard pursuant to Rule 901 (6 20.901 ofthis part), the Board will notify theappellant and his or her representative,if any. When the opinion is received bythe Board, a copy of the opinion will befurnished to the appellant'srepresentative or, subject to thelimitations provided in 38 U.S.C.5701(b)(1), to the appellant if there is norepresentative. A period of 60 days fromthe date of mailing of a copy of theopinion will be allowed for response.The date of mailing will be presumed tobe the same as the date of the letter ormemorandum which accompanies thecopy of the opinion for purposes ofdetermining whether a response wastimely filed.(Authority: 38 U.S.C. 7109(c))

§ 20.904 Rule 904. Vacating a deciaion.An appellate decision may be vacated

by the Board of Veterans' Appeals atany time upon request of the appellantor his or her representative, or on theBoard's own motion, on the followinggrounds:

(a) Denial of due process. Examples ofcircumstances in which denial of dueprocess of law will be conceded are:

(1) When the appellant was denied hisor her right to representation throughaction or inaction by Department ofVeterans Affairs or Board of Veterans'Appeals personnel,

(2) When a Statement of the Case orrequired Supplemental Statement of theCase was not provided, and

(3) When there was a prejudicialfailure to afford the appellant a personalhearing. (Where there was a failure tohonor a request for a hearing and ahearing is subsequently scheduled, butthe appellant fails to appear, thedecision will not be vacated.)

(b) Allowance of benefits based onfalse or fraudulent evidence. Where it Isdetermined on reconsideration that anallowance of benefits by the Board hasbeen materially influenced by false orfraudulent evidence submitted by or onbehalf of the appellant, the priordecision will be vacated only withrespect to the issue or issues to which,within the judgment of the Board, thefalse or fraudulent evidence wasmaterial.

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

§§ 20.905-20.999 [Reserved]

Subpart K-Reconsideration

§ 20.1000 Rule 1000. Whenreconsideration Is accorded.

Reconsideration of an appellatedecision may be accorded at any timeby the Board of Veterans' Appeals onmotion by the appellant or his or herrepresentative or on the Board's ownmotion:

(a) Upon allegation of obvious error offact or law;

(b) Upon discovery of new andmaterial evidence in the form of relevantrecords or reports of the servicedepartment concerned; or

(c) Upon allegation that an allowanceof benefits by the Board has beenmaterially influenced by false orfraudulent evidence submitted by or onbehalf of the appellant.(Authority: 38 U.S.C. 7103, 7104)

§ 20.1001 Rule 1001. Filing and dispositionof motion for reconsideration.

(a) Application requirements. Amotion for Reconsideration must be inwriting and must include the name ofthe veteran; the name of the claimant orappellant if other than the veteran (e.g.,a veteran's survivor, a guardian, or afiduciary appointed to receive VAbenefits on an individual's behalf); theapplicable Department of VeteransAffairs file number, and the date of theBoard of Veterans' Appeals decision, ordecisions, to be reconsidered. It mustalso set forth clearly and specifically thealleged obvious error, or errors, of factor law in the applicable decision, ordecisions, of the Board or otherappropriate basis for requestingReconsideration. If the applicable Boardof Veterans' Appeals decision, ordecisions, involved more than one issueon appeal, the motion forreconsideration must identify thespecific issue, or issues, to which themotion pertains. Issues not so identifiedwill not be considered in the dispositionof the motion.

(b) Filing of motion forreconsideration. A motion forreconsideration of a prior Board ofVeterans' Appeals decision may be filedat any time. Such motions must be filedat the following address: Director,Administrative Service (014), Board ofVeterans' Appeals, 810 VermontAvenue. NW., Washington, DC 20420.

(c) Disposition. The Chairman willreview the sufficiency of the allegationsset forth in the motion and, dependingupon the decision reached, proceed asfollows:

(1) Motion denied. The appellant andrepresentative or other appropriateparty will be notified if the motion isdenied. The notification will includereasons why the allegations are foundinsufficient. This constitutes finaldisposition of the motion.

(2) Motion allowed. If the motion isallowed, the appellant and his or herrepresentative, if any, will be notified.The appellant and the representativewill be given a period of 60 days fromthe date of mailing of the letter ofnotification to present additionalarguments or evidence. The date ofmailing of the letter of notification willbe presumed to be the same as the dateof the letter of notification. TheChairman will assign a Reconsiderationpanel in accordance with § 19.11 of thischapter.(Authority: 38 U.S.C. 7103, 7108)

§ 20.1002 Rule 1002. [Reserved]

§ 20.1003 Rule 1003. Hearings onreconsideration.

After a motion for reconsideration hasbeen allowed, a hearing will be grantedif an appellant desires to appear inperson. A personal hearing will notnormally be scheduled solely for thepurpose of receiving argument by arepresentative. Such argument should besubmitted in the form of a written brief.Oral argument may also be submitted onaudio cassette for transcription for therecord in accordance with Rule 700(d)(§ 20.700(d) of this part.). Requests forappearances by representatives alone topersonally present argument toMembers of the Board may be granted ifgood cause is shown. Whether goodcause has been shown will bedetermined by the presiding Member ofthe hearing panel involved.(Authority: 38 U.S.C. 7102, 7103, 7104(a),7105(a))

§§ 20.1004-20.1099 [Reserved]

Subpart L-Finality

§20.1100 Rule 1100. Finality of decisionsof the Board.

(a) General. All decisions of the Boardare by majority decision and will bestamped with the date of mailing on theface of the decision. Unless theChairman of the Board ordersreconsideration, and with the exceptionof matters listed in paragraph (b) of thissection, all Board decisions are final onthe date stamped on the face of thedecision. With the exception of matterslisted in paragraph (b) of this section,the decision rendered by thereconsideration Section in an appeal inwhich the Chairman has orderedreconsideration is final.

(b) Exceptions. Final Board decisionsare not subject to review except asprovided in 38 U.S.C. 1975 and 1984 and38 U.S.C. chapters 37 and 72. A remandis in the nature of a preliminary orderand does not constitute a final decisionof the Board.

(Authority: 38 U.S.C. 511(a), 7103, 7104(a))

§ 20.1101 Rule 1101. [Reserved]

§ 20.1102 Rule 1102. Harmless error.

An error or defect in any decision bythe Board of Veterans' Appeals whichdoes not affect the merits of the issue orsubstantive rights of the appellant willbe considered harmless and not a basisfor vacating or reversing such decision.

(Authority: 38 U.S.C. 7103)

§ 20.1103 Rule 1103. Finality ofdeterminations of the agency of originaljurisdiction where appeal Is not perfected.

A determination on a claim by theagency of original jurisdiction of whichthe claimant is properly notified is finalif an appeal is not perfected asprescribed in Rule 302 (§ 20.302 of thispart).

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

§ 20.1104 Rule 1104. Finality ofdeterminations of the agency of originalJurisdiction affirmed on appeal.

When a determination of the agencyof original jurisdiction is affirmed by theBoard of Veterans' Appeals, suchdetermination is subsumed by the finalappellate decision.

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

§ 20.1105 Rule 1105. New claim afterpromulgation of appellate decision.

When a claimant requests that a claimbe reopened after an appellate decisionhas been promulgated and submitsevidence in support thereof, adetermination as to whether suchevidence is new and material must bemade and, if it is, as to whether itprovides a basis for allowing the claim.An adverse determination as to eitherquestion is appealable.

(Authority: 38 U.S.C. 5108, 7104)

§ 20.1106 Rule 1106. Claim for deathbenefits by survivor-prior unfavorabledecisions during veteran's lifetime.

Except with respect to benefits underthe provisions of 38 U.S.C. 1318 andcertain cases involving individualswhose Department of Veterans Affairsbenefits have been forfeited for treasonor for subversive activities under theprovisions of 38 U.S.C. 6104 and 6105,issues involved in a survivor's claim fordeath benefits will be decided without

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regard to any prior disposition of thoseissues during the veteran's lifetime.

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

§§ 20.1107-20.1190 [Reserved)

Subpart M-Privacy Act

§ 20.1200 Rule 1200. Privacy Act request-appeal pending.

When a Privacy Act request is filedunder § 1.577 of this chapter by anindividual seeking records pertaining tohim or her and the relevant records arein the custody of the Board, such requestwill be reviewed and processed prior toappellate action on that individual'sappeal.

(Authority: 5 U.S.C. 552a; 38 U.S.C. 7107)

§ 20.1201 Rule 1201. Amendment ofappellate decisions.

A request for amendment of anappellate decision under the Privacy Act(5 U.S.C. 552a) may be entertained.However, such a request may not beused in lieu of, or to circumvent, theprocedures established under Rules 1000through 1003 (§ § 20.1000-20.1003 of thispart). The Board will review a requestfor correction of factual information setforth in a decision. Where the request toamend under the Privacy Act is anattempt to alter a judgment made by theBoard and thereby replace theadjudicatory authority and functions ofthe Board, the request will be denied onthe basis that the Act does not authorizea collateral attack upon that which hasalready been the subject of a decision ofthe Board. The denial will satisfy theprocedural requirements of § 1.579 ofthis chapter. If otherwise appropriate,the request will be considered one forreconsideration under Rules 1000through 1003 (§ 20.1000-20.1003 of thispart).

(Authority: 5 U.S.C. 552a(d); 38 U.S.C. 7103,7108)

§§ 20.1202-20.1299 [Reserved]

Subpart N-Miscellaneous

Cross-Reference: In cases involving accessto patient information relating to aDepartment of Veterans Affairs program for,or the treatment of, drug abuse, alcoholism,alcohol abuse, sickle cell anemia, or infectionwith the human immunodeficiency virus, alsosee 38 U.S.C. 7332.

§ 20.1300 Rule 1300. Access to Boardrecords.

(a) Removal of records. No originalrecord, paper, document or exhibitcertified to the Board may be taken fromthe Board except as authorized by theChairman or except as may benecessary to furnish copies or to

transmit copies for other officialpurposes.(Authority: 38 U.S.C. 5701)

(b) Release of information.Information requested from records,including copies of such records in thecustody of the Board of Veterans'Appeals, may be furnished to arequester only when permitted by lawand in accordance with Department ofVeterans Affairs regulations.

(Authority: 5 U.S.C. 552, 552a; 38 U.S.C. 5701)

(c) Fees. The fees to be charged andcollected for the release of informationand for any copies will be in accordancewith § § 1.526, 1.555, and 1.577 of thischapter.(Authority: 38 U.S.C. 5702(b))

(d) Waiver of fees. When informationis requested from records certified toand in the custody of the Board, therequired fee may be waived if suchinformation is requested in connectionwith the requestor's pending appeal.

(Authority: 38 U.S.C. 5702(b))

(e) Review of records. Information inthe records may be reviewed by Boardof Veterans' Appeals employees whohave a need.to do so in the performanceof their duties.

(Authority: 5 U.S.C. 552a(b)(1))

§ 20.1301 Rule 1301. Disclosure ofInformation.

(a) Policy. It is the policy of the Boardof Veterans' Appeals for the full text ofappellate decisions, Statements of theCase, and Supplemental Statements ofthe Case to be disclosed to appellants.In those situations where disclosingcertain information directly to theappellant would not be in conformancewith 38 U.S.C. 5701, that information willbe removed from the decision.Statement of the Case, or SupplementalStatement of the Case and the remainingtext will be furnished to the appellant. Afull-text appellate decision. Statement ofthe Case, or Supplemental Statement ofthe Case will be disclosed to thedesignated representative, however,unless the relationship between theappellant and representative is such (forexample, a parent or spouse) thatdisclosure to the representative wouldbe as harmful as if made to theappellant.(Authority: 38 U.S.C. 7105(d)(2))

(b) Index to decisions. The appellatedecisions of the Board of Veterans'Appeals have been indexed to facilitateaccess to the contents of the decisions(BVA Index --01-1). The index, which ispublished quarterly in microfiche formwith an annual cumulation, is available

for review at Department of VeteransAffairs regional offices and at theResearch Center at the Board ofVeterans' Appeals in Washington, DC.The index can be used to locatecitations to decisions with issues similarto those of concern to an appellant. Eachindexed decision has a locator numberassigned to it. The manner in which thelocator number is written will dependupon the age of the decision. Decisionsarchived prior to late 1989 will have anumber such as 82-07--001. Decisionsarchived at a later date will have anumber such as BVA-90-12345. Thisnumber must be used when requesting apaper copy of that decision. Theserequests must be directed to theAppellate Index and Retrieval Staff(01CI), Board of Veterans' Appeals, 810Vermont Avenue, NW., Washington, DC20420. Microfiche copies of BVA Index1-01-1 can be obtained from Promiseland Korn, Inc., 7201 Wisconsin Avenue,suite 480, Bethesda, MD 20814.

(Authority: 5 U.S.C. 552(a)(2))

§ 20.1302 Rule 1302. Death of appellantduring pendency of appeal.

When an appeal is pending before theBoard of Veterans' Appeals at the timeof the appellant's death, the Board maycomplete its action on the issuesproperly before it without applicationfrom the survivors.

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

§ 20.1303 Rule 1303. Nonprecedentlalnature of Board decisions.

Although the Board strives forconsistency in issuing its decisions,previously issued Board decisions willbe considered binding only with regardto the specific case decided. Priordecisions in other appeals may beconsidered in a case to the extent thatthey reasonably relate to the case, buteach case presented to the Board will bedecided on the basis of the individualfacts of the case in light of applicableprocedure and substantive law.

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

§ 20.1304 Rule 1304. Request for changeIn representation, request for personalhearing, or submission of additionalevidence following certification of anappeal to the Board of Veterans' Appeals.

(a) Request for a change inrepresentation, request for a personalhearing, or submission of additionalevidence within 90 days followingnotification of certification and transferof records. An appellant and his or herrepresentative, if any, will be granted aperiod of 90 days following the mailingof notice to them that an appeal hasbeen certified to the Board for appellate

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review and that the appellate record hasbeen transferred to the Board, or untilthe date the appellate decision ispromulgated by the Board of Veterans'Appeals, whichever comes first, duringwhich they may submit a request for apersonal hearing, additional evidence,or a request for a change inrepresentation. Any such request oradditional evidence must be submitteddirectly to the Board and not to theagency of original jurisdiction. The dateof mailing of the letter of notificationwill be presumed to be the same as thedate of that letter for purposes ofdetermining whether the request wastimely made or the evidence was timelysubmitted. Any evidence which issubmitted at a hearing on appeal whichwas requested during such period willbe considered to have been receivedduring such period, even though thehearing may be held following theexpiration of the period. Any pertinentevidence submitted by the appellant orrepresentative is subject to therequirements of paragraph (c) of thissection and, if a simultaneouslycontested claim is involved, therequirements of paragraph (d) of thissection.

(b) Subsequent request for a change inrepresentation, request for a personalhearing, or submission of additionalevidence. Following the expiration ofthe period described in paragraph (a) ofthis section, the Board of Veterans'Appeals will not accept a request for achange in representation, a request for apersonal hearing, or additional evidenceexcept when the appellant demonstrateson motion that there was good cause forthe delay. Examples of good causeinclude, but are not limited to, illness ofthe appellant or the representativewhich precluded action during theperiod; death of an individualrepresentative; illness or incapacity ofan individual representative whichrenders it impractical for an appellant tocontinue with him or her asrepresentative; withdrawal of anindividual representative; the discoveryof evidence that was not available priorto the expiration of the period; anddelay in transfer of the appellate record

to the Board which precluded timelyaction with respect to these matters.Such motions must be in writing andmust include the name of the veteran;the name of the claimant or appellant ifother than the veteran (e.g., a veteran'ssurvivor, a guardian, or a fiduciaryappointed to receive VA benefits on anindividual's behalf); the applicableDepartment of Veterans Affairs filenumber, and an explanation of why therequest for a change in representation,the request for a personal hearing, or thesubmission of additional evidence couldnot be accomplished in a timely manner.Such motions must be filed at thefollowing address: Director,Administrative Service (014), Board ofVeterans' Appeals, 810 VermontAvenue, NW., Washington, DC 20420.The ruling on the motion will be by theChairman. Depending upon the ruling onthe motion, action will be taken asfollows:

(1) Good cause not shown. If goodcause is not shown, the request for achange in representation, the request fora personal hearing, or the additionalevidence submitted will be referred tothe agency of original jurisdiction uponcompletion of the Board's action on thepending appeal without action by theBoard concerning the request oradditional evidence. Any personalhearing granted as a result of a requestso referred or any additional evidenceso referred may be treated by thatagency as the basis for a reopenedclaim, if appropriate. If the Board denieda benefit sought in the pending appealand any evidence so referred which wasreceived prior to the date of the Board'sdecision, or testimony presented at ahearing resulting from a request for ahearing so referred, together with theevidence already of record, issubsequently found to be the basis of anallowance of that benefit, the effectivedate of the award will be the same as ifthe benefit had been granted by theBoard as a result of the appeal whichwas pending at the time that the hearingrequest or additional evidence wasreceived.

(2) Good cause shown. If good causeis shown, the request for a change in

representation or for a personal hearingwill be honored. Any pertinent evidencesubmitted by the appellant orrepresentative will be accepted, subjectto the requirements of paragraph (c) ofthis section and, if a simultaneouslycontested claim is involved, therequirements of paragraph (d) of thissection.

(c) Consideration of additionalevidence by agency of originaljurisdiction. Any pertinent evidencesubmitted by the appellant orrepresentative which is accepted by theBoard under the provisions of thissection, as well as any such evidencereferred to the Board by the originatingagency under § 19.37(b) of this chapter,must be referred to the agency oforiginal jurisdiction for review andpreparation of a SupplementalStatement of the Case unless thisprocedural right is waived by theappellant or unless the Boarddetermines that the benefit, or benefits,to which the evidence relates may beallowed on appeal without such referral.Such waiver must be in writing or, if ahearing on appeal is conducted, formallyentered on the record orally at the timeof the hearing.

(d) Simultaneously contested claims.In simultaneously contested claims, ifpertinent evidence which directlyaffects payment, or potential payment,of the benefit sought is submitted by anyclaimant and is accepted by the Boardunder the provisions of this section, thesubstance of such evidence will bemailed to each of the other claimantswho will then have 60 days from thedate of mailing of notice of the newevidence within which to comment uponit and/or submit additional evidence inrebuttal. The date of mailing of the letterof notification of the new evidence willbe presumed to be the same as the dateof that letter for purposes of determiningwhether such comment or evidence inrebuttal was timely submitted. Nofurther period will be provided forresponse to such comment or rebuttalevidence.

(Authority: 38 U.S.C. 7104, 7105, 7105A)

APPENDIX A TO PART 20-Cross-References

Sec. Cross-reference Title of cross-referenced material or comment

38 CFR 3.103(a) .....................................................38 CFR 20.306 .............................38 CFR 20.201 ........................................................38 CFR 20.202 ..........................38 CFR 20.300-20.306 ..........................................38 CFR 19.29 ...........................................................38 CFR 19.31 ..........................................................38 CFR 20.500 .........................................................38 CFR 20.602 ........................................................

Statement of policy.Rule 306 Legal holiday&Rule 201. Notice of DsagreementRule 202. Substantive Appeal.See re filing Notices of Disagreement and Substantive Appeals.Statement of the CasaSupplemental Statement of the CasaRule 500 Who can file an appeal In simultaneously contested claims.Rule 602. Representaon by recognIzed organlzaone

20.1 .................20.100 ...............20.200 .................

20.202 .................

20.301 ................

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APPENDIX A TO PART 20-Cross-References--Continued

Sec. Cross-reference Title of cross-referenced material or comment

20.302 .................

20.303 .................

20.305 .................20.400 .................20.401 .................

20.500 .................20.501 .................

20.502 .................

20.503 .................20.504 .................20.600 .................

20.602 .................

20.603 .................

20.604 ................

20.605 ................

20.606 ................20.607 ..............20.609 ..............

38 CFA 20.603 ........................................................38 CFR 20.604 ........................................................38 CFR 20.605 .........................................................38 CFR 20.501 .........................................................

38 CFR 20.304 .........................................................38 CFR 20.503 .........................................................38 CFR 20.306 .........................................................38 CFR 19.50-19.53 ................................................38 CFR 19.50-19.53 ................................................38 CFR 20.302-20.306 ............................................38 CFR 20.501, 20.503 ...........................................38 CFR 20.713 .........................................................38 CFR 20.305 ............................38 CFR 20.306 .........................................................38 CFR 20.713 .........................................................38 CFR 20.305 .........................................................38 CFR 20.306 .........................................................38 CFR 20.713 .........................................................38 CFR 20.713 .........................................................38 CFR 20.713 ........................................................38 CFR 14.626 et seq .............................................38 CFR 20.602 .........................................................38 C FR 20.603 .........................................................38 CFR 20.604 ........................................................38 CFR 20.605 .........................................................38 CFR 14.628 ........................................................38 CFR 14.631 .........................................................38 CFR 20.100 .........................................................38 CFR 20.607 ........................................................38 CFR 20.608 .........................................................38 CFR 20.609 .........................................................

38 CFR 20.610 .........................................................

38 CFR 14.629 .........................................................38 CFR 14.631 .........................................................38 CFR 20.100 .........................................................38 CFR 20.606 .........................................................38 CFR 20.607 ............................38 CFR 20.608 .........................................................38 CFR 20.609 ............................

38 CFR 20.610 .........................................................

38 CFR 14.631 .........................................................38 CFR 20.100 .........................................................38 CFR 20.607 ........................................................38 CFR 20.608 .........................................................38 CFR 20.609 .........................................................

38 C FR 20.610 ........................................................

38 C FR 14.630 ...................................................38 C FR 14.63 1 ........................................................38 CFR 20.100 ........................................................38 CFR 20. 07 ........................................................38 CFR 20.608 .......................................................38 C FR 20.609 .......................................................

38 CFR 20.610 ........................................................

38 C FR 20.603 ........................................................38 CFR 14.631(d) ....................................................38 CFR 14.629 .......................................................38 CFR 20.603 .......................................................38 CFR 20.604 ........................................................38 CFR 20.606 ........................................................38 CFR 20.610 .............................

20.610............... 38 CFR 20.609 ........................................................

20.611 ................ 38 CFR 1.525(d), 14.31(e) ...................................

20.701 ........ 38 CFR 20.710 ...................................................20.702................ 38 CFR 20.704 .......................................................

38 CFR 20.713 ...................... ........... ....... ...20.703 ....... 38 CFR 20.201 .............................

Rule 603. Representation by attorneys-at-law.Rule 604. Representaton by agents.Rule 605. Other persons as representative.Rule 501. Time limits for filing Notice of lsagreemen4 Substantive Appeal, and response to

Supplemental Statement of the Case in simuteneously contested claims.Rule 304. Filing additional evidence does not extend time limit for appealRule 503. Extension of time for filing a Substantive Appeal in simultaneously contested claimsRule 306. Legal holidays.See also re administrative appeals.See also re administrative appeals.See re time limits for perfecting an appeal.See re time limits for perfecting an appeal in simultaneously contested claims.Rule 713. Hearings in simultaneously contested claims.Rule 305. Computation of time limit for filing.Rule 306. Legal holidays.Rule 713. Hearings in simultaneously contested claims.Rule 305. Computation of time limit for filing.Rule 306. Legal holidayaRule 713. Heatings in simultaneously contested claimsRule 713. Hearings In simultaneously contested claims.Rule 713. Hearings in simultaneously contested claims.See also re representation.Rule 602. Representation by recognized organizationsRule 603. Representation by attorneys-at-law.Rule 604. Representation by agentsRule 605. Other persons as representative.Recognition of organizations.Powers of attorney.Rule 100. Name, business hours, and mailing address of the Board.Rule 607 Revocation of a representative's authoety to act.Rule 608. Withdrawal of services by a representative.Rule 609. Payment of representative's fees in proceedings before Department of Veterans Affairs

field personnel and before the Board of Veterans'AppeasRule 610. Payment of representative's expenses in proceedings before Department of Veterans

Affairs field personnel and before the Board of Veterans' Appeals.Requirements for accreditation of representatives. agents, and attorneys.Powers of attorney.Rule 100. Name, business hours, and mailing address of the Board.Rule 606 Legal interns, law students and paralegals.Rule 607. Revocation of a representative's authority to actRule 608. Withdrawal of services by a representahve.Rule 609. Payment of representative's fees in proceeings before Department of Veterans Affairs

field personnel and before the Board of Veterans'AppealsRule 610. Payment of representative's expenses in proceedings before Departnent of Veterans

Affars field personnel and before the Board of Veterans'AppeaaPowers of attorney.Rule 100. Name, business hours, and maing address of the Board.Rule 607. Revocation of a representative's authority to actRule 606. Withdrawal of services by a representatveRule 609. Payment of representative's fees in prceeditg before Department of Veterans Affairs

field personnel and before the Board of Veterans' AppealsRule 610. Payment of representaive's expenses in proceedings before Department of Veterans

Affairs field personnel and before the Board of Veterans' Appeals.Authorizaton for a particular claimPowers of attorney.Rule 100. Name, business hour. and mailing address of the Board.Rule 607. Revocation of a representative's authority to actRule 608. Withdrawal of services by a representative.Rule 609. Payment of representative's fees in proceesdings before Departmept of Veterans Affairs

field personnel and before the Board of Veterans' AppealsRule 610. Payment of representative's expenses In proceedngs before Departent of Veterans

Affairs field personnel and before the Board of Veterans'Appeals.Rule 603. Representation by attorneys-at-law.See also re revocation of powers of attorney,Requirements for accreditation of representaves, agents, and attorneys.Rule 603. Represention by attoreys-at-law.Rule 604. Representation by agentsRule 606. Legal intern law students and paralgaosRule 61f Payment of representative's expenses in pocee"dngs before Deparment of Veterans

Affairs field personnel and before the Board of Veterans' Appeals.Rule 609. Payment of representative's fees in proceedings before Department of Veterans Affak,

field personnel and before the Board of Veterans' AppealSee also re continuation of authorty conferred by powers of attorney upon the dieath of a

claimant.Rule 710. Witnesses at heaings.Rule 704. Schedutng and notice of heaings condOcted by traveling Sections of the Bowd of

Veterans' Appeals at Department of Vetirns Affars faciities.Rule 713. Hearings in slmultoneou contested clams.Rule 201. Notice of Lsagreement

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Federal Register I Vol. 57, No. 22 / Monday, February 3, 1992 / Rules and Regulations

APPENDIX A TO PART 20--Cross-References--Continued

Sec. Cross-reference Tite of cross-referenced material or comment

20.704 ................ 38 CFR 20.702 ........................................................

20.706 ..............

20.707-........20.708 ................

20.709 ................

20.710 ................20.711 ................

20.713 ................

20.715 .................20.800 .................

20.901 .................20.903 .................

20.1003 ...............20.1105 ...............

20.1106 ...............

20.1300 ...............

20.1301 ..............20.1302 ........20.1304 .............

38 CFR 20.700(c) ....................................38 CFR 20.708 .. ................... ..38 CFR 20.70 ...........38 CFR 19.11 ............................................38 CFR 20.606(d) ....................................................

38 CFR 19.37 ...........................................................

38 CFR 20.1304 .................................................

38 CFF 20.711 .................................................38 CFR 2.1 ................................................................

38 CFR 20.702 ....................................

38 CF 20.704 ......................................

38 CFR 20.706 .........................................................38 CFR 20.304 ...........................38 CR 20.709 .....................................38 CFR 20.1304 ...................................................

38 CFR 14.507 .........................................................38 CFR 20.305 .........................................................38 CFR 20.306 ............... ......................38 CFR 20.700(b) .................................38 CFR 3.156 ........................................................38 CFR 3.160(e) ...................... ...................38 CFR 20.1304(b)(1) .........................................

38 CFR 3.22(a)(2) . .................

38 CFR 1.500-1.527 . ................38 CFR 1.550-1.559 ..............................................

38 CFR 1.575-1.584 ...............................................38 CFR 20.1301 ..................................................38CFR 1.577 ....................38 CFR 20.811 .................................................36 CFA 3.103(C), 20.700-20.717 ..............38 CFR 3.156 ....................................................38 CFR 3.160(e) ........... ......... ...........38 CFR 20.305 . . .......................38 CFR 20.306 ...................................................

[FR Doc. 92-1971 Filed 1-31--W; 8:45 am]ELLI COoE 8320-01-

4130

Rule 702. Schedufing and notice of hearings conducted by the Board of Veterans' Appeals inwasligft, D, and 4' agency of oromal unsalichon personnel acting on behalf of the Boardof Veterens' Appeals at field facltiee

See also re the presiding Member's role in the conduct of hearings.Ruile 708. Preheaft conference.Rule 709. Prociment of addional evidone too*ng a hearing.ReconalerAbn SechbnSee re the preheating conference required when a legal intern, law student, or paralegal is to

prticipete in a hearing held before a traveling Section of the Boerd.ConsidAratn of addiorel evidence received by the agency of ongial jorsdikn after an aposel

hs been klfaed.Rle FX4. Request for change in representtion request for personal hearig or submlssion of

ad*Ou ewdene Jlowtg certficatkn of an appea/ to the Board of Veterans' AppealsRule 711. Subpoesns.See for further information on subpoenas, Including action to be taken in the event of

noncomplica.Rule 702 Shedutig and notice of hearings conducted by the Board of Veterans' Appeals 0n

WaswtoM OQ and by agency of origia jfiosdichon personnel acing on behalf of the Boardof Veterans'Appeals at field facihea

Rule 704. Schedu and notice of hearings conducted by traveain Section of the Board ofVeterane' Appeals at Department of Veterans Affairs facilities.

Rule 706 Functions of the presiding Membe.Rule 304. Fig addibonal evidence does not extend tme fimit for appealRule 709. Procurmenl of additional evidence fol/own a hearing.Rule 1304. Request for change in representation, request for personal hernn, or submission of

additional evidence following certificaton of an appeal to the Board of Veterans' AppealsSee re opinions of the Genera Counsel of the Department of Veterans Affairs.Rule 305. Computation of time limit for i&g.Rule 306. Legal hohdayaSee re submission of written brief and of oral argument on audio cassetteNew and matral evidence.Reopened claim.See re request for a personal hearing or submission of additional evidence more than 60 days

after a case has been certified to the Board of Veterans' Appeals as possible basis for areopened claim.

See re correction of a rating, after a veteran's death, based on clear and unmistakable error, incases Involving claims for benefits under the provision of 38 U.S.C. 1318.

See re the release of information from Department of Veterans Affairs claimant records.See re the release of information from Department of Veterans Affairs records other than claimant

records.See re safeguarding personal information in Department of Veterans Affairs records.Rule 1301. Dieiosure of informaon.Access to record&Rule 61 f. Continuabtion of representation folowtng death of a climant or appellantSee eso re hearbngNew and meterisl eviwe.Reopened cm.Rle 305. Computation of tme hist for AIRue 306. Legel hokisys

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Federal Register / Vol. 58, No. 57 / Friday, March 26, 1993 / Rules and Regulations

the result of a service-connected diseaseor injury (38 CFR 3.310(a)).

By enacting Public Law 98-542,Congress clearly intended to establishan avenue for VA to compensateveterans for disabilities or deaths causedby ionizing radiation exposure, sinceexisting statutes and regulations hadproven inadequate for at purpose. Justas clearly, 38 CFR 3.311b(h), whichimplements the radiation provisions ofPublic Law 98-542, does not precludeawards of service connection under§§ 3.303, 3.304, 3.306, or 3.307, since itis a pplied only after service connectionunder those regulations has alreadybeen precluded because a conditionmanifested itself beyond the time framesthey impose.

As to the commenter's concern thatthis amendment would precludeapplication of the reasonable doubtprovisions of § 3.102, we believe thoseconcerns are unfounded because thereasonable doubt provisions are appliedat several stages throughout theadjudication of ionizing radiationclaims. The initial application of theprovisions of § 3.102 occurs when theSecretary, after receiving the advice ofthe VACEH, determines whether it is atleast as likely as not that a significantstatistical association exists between aspecific condition and exposure toionizing radiation (38 CFR 1.17 (d) and(0). When the ionizing radiation doseestimates provided by the Department ofDefense are reported as a range of dosesto which the veteran may have beenexposed, VA applies the provisions of9 3.102 againby using the highestestimated level as the basis forsubsequent determinations. VA appliesthe benefit of doubt provisions of

§ 3.102 yet again when the UnderSecretary for Health renders an opinionas to whether it is as likely as not thata veteran's radiogenic disease resultedfrom the level of ionizing radiation towhich he or she was exposed duringmilitary service.

For the reasons set forth above, VAbelieves that the proposed amendmentto § 3.311b(h) is not only consistentwith the Secretary's authority under 38U.S.C. 501(a), but also with theprovisions of Public Law 98-542.

VA appreciates the commentsubmitted in response to both proposedrules, which are now combined andadopted with minor technicalamendments.

The Secretary hereby certifies thatthis regulatory amendment will nothave a significant economic Impact ona substantial number of small entities asthey are defined in the RegulatoryFlexibility Act (RFA), 5 U.S.C. 601-612.The reason for this certification is that

this amendment would not directlyaffect any small entities. Only VA.beneficiaries could be directly affected.Therefore, pursuant to 5 U.S.C. 605(b),this amendment is exempt from theinitial and final regulatory flexibilityanalysis requirements of sections 603and 604.

In accordance with Executive Order12291, Federal Regulation, the Secretaryhas determined that this regulatoryamendment is non-major for thefollowing reasons:

(1) It will not have an annual effect onthe economy of $100 million or more.

(2) It will not cause a major increasein costs or prices.

(3) It will not have significant adverseeffects on competition, employment,investment, productivity, innovation, oron the ability of United States-basedenterprises to compete with foreign-based enterprises in domestic or exportmarkets.

The Catalog of Federal DomesticAssistance program numbers are 64.109 and

4.110.List of Subjects in 38 CFR Part 3

Administrative practice andprocedure, Claims, Handicapped,Health care, Pensions, Veterans.

Approved: March 3,1993.iJn Brown.Secreftuy of Veteraw Affairs.

For the reasons set out in thepreamble, 38 CFR part 3 is amended asset forth below:

PART 3-ADJUDICATION

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

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

Authority: 105 Stat. 386; 38 U.S.C. 501(a),unless otherwise noted.

2. In § 3.311b(b)(2)(xvi), remove theword "and"; in S 3.311b(b)(2)(xvii),remove the mark ".", and add, in itsplace, the mark ";'.

3. In § 3.311b, add paragraphs(b)(2)(xviii) and (b)(2)(xix), and reviseparagraph (h) to read as follows:

13.311b Claims based on exposure toIonlzing radiation.

(b)''(2) "(xviii) Ovarian cancer, and(xix) Parathyroid adenoma.

(h) Service connection under otherprovisions.

Nothing in this section will beconstrued to prevent the establishment

of service connection for any disease orinjury shown to have been incurred oraggravated during active service inaccordance with §§ 3.304, 3.306, 3.307,or 3.309. However, service connectionwill not be established under thissection, oi any other section except for§§ 3.309(d) or 3.310(a), on the basis ofexposure to ionizing radiation and thesubsequent development of any diseasenot specified in paragraph (b)(2) of thissection.

(FR Doc. 93-6928 Filed 3-25-93; 8:45 am]ImiWH CODE 830-U1-.

38 CFR Part 3RIN 2900-AFOI

Procedural Due Process and AppellateRights

AGENCY: Department of Veterans Affairs.ACTION: Final rule.

SUMMARY: The Department of VeteransAffairs (VA) has amended itsadjudication regulations concerningprocedural due process and appellaterights. This amendment is necessarybecause the previous regulations limitlocations at which VA may holdclaimant hearings. The intended effectof this amendment is to allow theVeterans Benefits Administration (VBA)greater flexibility in providing hearinglocations for claimants desiring ahearing.EFFECliVE DATE: This amendment iseffective March 26, 1993.FOR FURTHER INFORMATION CONTACT: JohnBisset, Jr., Consultant, Regulations Staff,Compensation and Pension Service,Veterans Benefits Administration,Department of Veterans Affairs, 810Vermont Avenue, NW., DC 20420, (202)233-3005.SUPPLEMENTARY INFORMATION: VApublished a proposal to amend 38 CFR3.103(c)(1) to allow VBA greaterflexibility in providing hearing locationsfor claimants desiring a hearing in theFederal Register of June 30,1992 (57 FR29052-53). Interested persons wereinvited to submit written comments,suggestions or objections on or beforeJuly 30. 1992. We received onecomment from the Paralyzed Veterans ofAmerica.

The commenter, while agreeing thatthe proposed amendment to holdhearings at additional sites would be aconvenience to certain claimants,suggested that the practice could bedetrimental to the claimant's interest if'the services of his or her representativeor veterans service organization wouldbe unavailable. For this reason, the

16359

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16360 Federal Register / Vol. 58, No. 57 / Friday, March 26, 1993 / Rules and Regulations

commenter recommended that VA'snotice of the place of the hearinginclude notice as to the availability ofthe appointed representative and of analternate site that may be more agreeableto both the claimant and his or herrepresentative.

This amendment to § 3.103(c)(1)allows VA the flexibility to providehearings at any VA facility or otherfederal building at which suitablehearing facilities are available, at theoption of VA and subject to availableresources. The claimant would alwayshave the option to request that thehearing be conductef at the VA regionaloffice having jurisdiction over the claimor at the VA regional office nearest theclaimant's home.

VA will exercise its option to offer ahearing at a site other than a VAregional office only after assessing thecircumstances and the availability ofiesources, which may vary significantlyfrom office to office. Hearings will mostlikely be offered at locations whereconcentrations of claimants haverequested hearings, and service..organizations may elect to send arepresentative to those sites. VA policyIs to notify the claimant and his or herrepresentative (38 CFR 1.525(d)) of thedate, time and location of the hearing,and whether the claimant'srepresentative will be available is bestdetermined by the claimant and his oilher representative after they have beennotified of a hearing at an alternate site.While we do not object to notifyingclaimants that the hearing may be heldat the regional office, we believe it ismore appropriate to handle this matterprocedurally rather than by reulation.

In order to more clearly emphasizethat hearings at remote sites will beoffered solely at VA's option, we haveslightly modified the regulatorylanguage. VA appreciates the commentsubmitted in response to the proposedrule, which is now adopted with thedescribed amendment.

The Secretary hereby certifies thatthis regulatory amendment will nothave a significant economic impact ona substantial number of small entities asthey are defined in the RegulatoryFlexibility Act (RFA), 5 U.S.C. 601-612.The reason for this certification is thatthis amendment would not directlyaffect any small entities. Only VAbeneficiaries could be directly affected.Therefore, pursuant to 5 U.S.C. 605(b),this amendment is exempt from theinitial and final regulatory flexibilityanalysis requirements of sections 603and 604.

In accordance with Executive Order12291, Federal Regulation. the Secretaryhas determined that this regulatory

amendment is non-major for thefollowing rea s:

(1) It will not have an annual effect onthe economy of $100 million or more.

(2) It will not cause a major incasein costs or prices.

(3) It will not have significant adverseeffects on competition, employment.investment, productivity, innovation, oron the ability of United States-basedenterprises to compete with foreign-based enterprises in domestic or exportmarkets.

The Catalog of Federal DomesticAssistance program numbers ae 64.100.64.101, 64.104,64.105,84.106, 64.100 and64.110.

List of Subjects in 3 CFR Part 3Administrative practice and

procedure, Claims, Handicapped,Health care. Pensions, Veterans.

Approved: March 3,1993.Jame Brown.Secretay ofVeterns Affair.

For the reasons set out in thepreamble, 38 CFR part 3 is amended asset forth below:

PART 3-ADJUDICATION

Subpart A-Pension, Compensation,and Dependency and IndemnityCompensation

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

Authority 105 Stat. 386; 38 US.C. SM(a),unless otherwise noted.

11&103 [Amended]2. In § 3.103(c)(1). the first sentence,

remove the numbers "19.174". and add,in their place, the numbers "20.1304".

3. In § 3.103(c)(1), the secondsentence, after the words "claimant'shome having adjudicative functions."add the words "or, subject to availableresources and solely at the option of VA,at any other VA facility or federalbuilding at which suitable hearingfacilities are available." Remove thewords "and will provide VA personnel"and add, in their place, the words "VAwill provide personnel".[FR Dec. 93-6929 Filed 3-25-3; 8:45 am]8IUNG COO 832&-O-

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 2lET Docket No. 01-280; FCC 03-29]

Low-Earth Orbit Satellites Below I GHz

AGENCY: Federal CommunicationsCommission.

AC11OK Final rule.

SummARY: This Report and Orderallocates VHF and UHF radio spectrumfor mobile-satellite services (MSS) usinglow-Earth satellites (LEOs). This actionresponds to decisions made at the 1992World Administrative Radio Conference(WARC-92) and to petitions for RuleMaking filed by OrbitalCommunications Corporation(ORBCOMM), STARSYS Inc.(STARSYS), and Volunteers inTechnical Assistance (VITA). Thisallocation will be used to provide datamessaging and position determinationservices using non-voice non-geostationary satellites. Provision ofsuch services using LEOs is expected tobe cost effective compared to providingcor ble services using geostationarysate ites.DATES: April 26,1993.FOR FURTHER W1RMA1ON CONTACT.Ray LaForge, Office of Engineering andTechnology, telephone (202) 653-8117.SUpPiEmENTARY IIFORMATION: This is asummary of the Commission's Reportand Order in ET Docket No. 91-280adopted on January 14, 1993, andreleased on February 5, 1993. Thecomplete text of this Report and Orderis available for inspection and copyingduring normal busine s hours in theFCC Public Reference Center (room239), 1919 M Street. NW., Washington,DC. The complete text of this Reportand Order also may be purchased fromthe Commission's duplicationcontractor, International TranscriptionService, Inc., 2100 M Street, NW., suite140, Washington DC 20036, (202) 857-3800.Summary of Report and Order

1. The Commission concludes thatdemand warrants allocation of spectrumin the VHF/UHF bands for provision ofdata messaging and positiondetermination services using LEO& Forthese purposes the Commissionallocates for LEP-MSS the 137-137.025,137.175-137.825, and 400.15-401 MHzbands (space-to-Earth) on a primarybasis; the 137.025-137.175 and137.825-138 MHz bands (space-to-Earth) on a secondary basis; and the148-150.05 and 399.9-400.05 MHzbands (Earth-to-space) on a primarybasis. Allocation of these bands isconsistent with international frequencyallocations made at the WorldAdministrative Radio Conference inMarch, 1992 (WARC-92). TheCommission also adopts specificconditions governing use of these bandsfor LEO-MSS to avoid interference toexisting users. Further, the Commissionawards a pioneer's preference to VITA.

ADD-128

58, No. 90 / Wednesday, May 12, 1993 / Rules and Regulations

(1) The Coast Guard has granted theCity of Chicago, Department ofTransportation, a temporary deviationfrom the operating requirements at 33CFR 117.391 governing certain bridgesowned by the City of Chicago over theChicago River, as follows:Main BranchLake Shore DriveColumbus DriveMichigan AvenueWabash AvenueState StreetDearborn StreetClark StreetLa Salle StreetWells StreetFranklin-Orleans StreetSouth BranchLake StreetRandolph StreetWashington StreetMadison AvenueMonroe StreetAdams StreetJackson BoulevardVan Buren StreetEisenhower ExpresswayHarrison StreetRoosevelt Road18th StreetCanal StreetSouth Halsted StreetSouth Loomis StreetSouth Ashland Avenue

North BranchGrand AvenueOhio StreetChicago AvenueNorth Halsted Street

(2) This deviation from normaloperating regulations is authorized inaccordance with the provisions of title33 of the Code of Federal Regulations,§ 117.43, for the purpose of evaluatingpossible changes to the permanentregulations. This temporary deviationapplies only to passage of recreationalvessels. Under the deviation the bridgeslisted above operated by the City ofChicago need not open for the passageof recreational vessels unless the City ofChicago receives a twenty-four houradvance notice for passage, and neednot open for recreational vessels exceptduring the following periods, subject tothe conditions indicated:

(a) From 6 a.m. on Saturdays through7 p.m. on Sundays, the draws shall openfor the passage .of organized flotillasconsisting of no less than five and not"more than twenty-five vessels.

(b) On Tuesdays and Thursdays thedraws shall open for the passage oforganized flotillas consisting of no lessthan five and not more than twenty-fivevessels, from 6:30 p.m. until allorganized flotillas have safelycompleted passage.

(3) Notwithstanding this deviation.the City of Chicago, after receivingnotice twenty-four hours in advance ofthe intended passage of the flotillathrough the draws of the bridges, shallensure that:

(a) The necessary bridgetenders areprovided for the safe and promptopening of the draws;

(b) The operating machinery of eachdraw is maintained in a serviceablecondition; and

(c) The draws are operated atsufficient intervals to assure theirsatisfactory operation.

(4) The Kinzie Street bridge, mile 1.81across the North Branch, and Cermak"Road bridge, mile 4.05 across the SouthBranch, shall continue to operate inaccordance with requirements presentlyestablished in 33 CFR 117.391.

(5) All draws shall open forcommercial vessels in accordance withcurrent regulations In 33 CFR 117.391.In accordance with current regulations,including 33 CFR 117.391, governmentvessels of the United States, state andlocal vessels used for public safety, andvessels in distress shall be passedthrough the draws of all bridges as soonaspossible at all times.

(6) This period of deviation iseffective from the beginning of Monday,April 26 1993, to the beginning ofMonday, May 31, 1993.

Dated: 30 April 1193.A.D. Shepard,Captain, U.S. Coast Guard. Commander,Ninth Coast Guard District.(FR Doc. 93-11236 Fied 5-11-93; 8:45 am]Balm COO 4 "10-14-1

DEPARTMENT OF VETERANS

AFFAIRS

38 CFR Part 20RIN 2900-AF90

Rules of Practice; Hearings Before theBoard on AppealAGENCY: Department of Veterans Affairs.ACTION: Final rule.

SUMMARY: This document containsamendments to the Department ofVeterans Affairs (VA) final Rules ofPractice of the Board of Veterans'Appeals concerning hearings before theBoard. References to hearings held byVA employees acting as "agents" for theBoard at VA regional offices have beendeleted. This amendment is intended toclarify the opportunities available forhearings before the Board.EFFECTVE DATE: May 12, 1993.FOR FURTHER INFORMATION CONTACT:Mr. Steven L. Keller, Counsel to the

Chairman (01C), Board of Veterans'Appeals, 810 Vermont Avenue NW.,Washington, DC 20420 (202) 233-2978.SUPPLEMENTARY INFORMATION: The finalregulations that are the subject of theseamendments are the Board of Veterans'Appeals Rules of Practice concerninghearings.

The current regulations refer tohearings conducted by VA personnelacting as "agents" for the Board ofVeterans' Appeals. This procedure willno longer be used. Therefore, this finalrule removes references to hearingsconducted by VA personnel acting as"agents" for the Board.

The Board of Veterans' Appeals hasreexamined its relationship with theVeterans Benefits Administration (VBA)as it relates to the conduct ofadjudicatory proceedings by bothorganizations. As a result of this review,we have concluded that a cleardemarcation should exist between theconduct of hearings by the Board andhearings conducted by VBA employeesat regional offices. The establishment ofthis demarcation resulted in thecessation of Board of Veterans' Appealshearings being conducted by VBAemployees as "agents" of the Board. TheVBA will still conduct hearings by itshearing officers as part of itsadjudicatory process, and a record ofthose hearings will be made a part of theclaims file for review by the Board inthe event an appeal is certified to theBoard. The Board will, at its level in theappellate process, continue to afford anopportunity to each claimant to have ahearing before a Member or Members ofthe Board either in Washington, DC., orat a VA regional office.

This change will have the effect ofroviding an appellant an opportunityor a hearing before VBA personnel and

then an opportunity for another hearingat the Board level.

In addition to deleting references tohearings held by regional officepersonnel acting as "agents" for theBoard, amendments clarifying theopportunities for hearings held beforethe Board have been made.

This regulation Is effectiveimmediately. Notice of proposedrulemaking does not apply to thisregulation under the exception providedin 5 U.S.C. section 553(b)(A) forinterpretative rules, general statementsof policy, or rules of agencyorganizations, procedure or practice.

The Secretary has determined thatthese regulations do not contain a majorrule as that term is defined by ExecutiveOrder 12291, Federal Regulation. Theregulations will not have a $100 millionannual effect on the economy and will

27934 Federal Register / Vol.

ADD-129

Federal Register /.Vol. 58, No. 90 / Wednesday, May 12, 1993 / Rules and Regulations 27935

not cause a major Increase in costs orprices for anyone. They will have nosignificant adverse effects oncompetition, employment, investment,productivity, innovation, or on theability of United States-basedenterprises to compete with foreign-based enterprises in domestic or exportmarkets.

The Secretary hereby certifies thatthese regulatory amendments will nothave a significant economic impact ona substantial number of small entities asthey are defined in the RegulatoryFlexibility Act, 5 U.S.C. 601-612. Thereason for this certification is that theregulations have only a limited effect onclaimants/appellants and theirrepresentatives. Therefore, pursuant to 5U.S.C. 605(b), these regulations areexempt from the initial and finalregulatory flexibility analysesrequirements of §§ 603 and 604.

There are no Catalog of FederalDomestic Assistance numbersassociated with these regulatoryamendments.

List of Subjects in 38 CFR Part 20

Administrative practice andprocedure, Claims, Lawyers, Legalservices, Veterans.

Approved: April 13, 1993.lese Brown,Secretary of Veterans Affairs.

For the reasons set forth in thepreamble, 38 CFR part 20 is amended asfollows:

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

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

Authority: 38 U.S.C. 501(a)

2. In part 20, the heading for SubpartH is revised as follows:

Subpart H-Hearings before the Boardon Appeal

3. In 38 CFR part 20, § 20.700 isamended by revising the first sentenceof paragraph (c) to read as follows:

§20.700 Rule 700. General.

(c) Nonadversarial proceedings.Hearings conducted by the Board are exparte in nature and nonadversarial.

4. Section 20.701 is revised to read asfollows:

5 20.701 Rule 701. Who may present oralargument.

Only the appellant and/or his or herauthorized representative may appearand present argument in support of anappeal. At the request of an appellant,a Veterans Benefits Counselor of theDepartment of Veterans Affairs maypresent the appeal at a hearing beforethe Board of Veterans' Appeals.(Authority: 38 U.S.C. 7102, 7104(a), 7105)

5. In section 20.702. the heading, andparagraphs (a), (c), (d), and (e) arerevised to read as follows:

J 20.702 Rule 702. Scheduling and noticeof hearings conducted by the Board ofVeterans' Appeals In Washington, DC.

(a) General. To the extent that officialsscheduling hearings for the Board ofVeterans' A ppeals determine thatnecessary physical resources andqualified personnel are available,hearings will be scheduled at theconvenience of appellants and theirrepresentatives, with consideration ofthe travel distance involved. While aStatement of the Case should beprepared prior to the hearing, it is nota prerequisite for a hearing and anappellant may request that the hearingbe scheduled prior to issuance of theStatement of the Case.(Authority: 38 U.S.C. 7102, 7104(a), 7105(a)

(b)* * *(c) Requests for changes in hearing

dates. (1) The appellant or therepresentative may request a differentdate for the hearing within 60 days fromthe date of the letter of notification ofthe time and place of the hearing, or notlater than two weeks prior to thescheduled hearing date, whichever isearlier. The request must be in writing,but the grounds for the request need notbe stated. Only one such request for achange of the date of the hearing will begranted, subject to the interests of otherparties if a simultaneously contestedclaim is involved. In the case ofhearings to be conducted by the Boardof Veterans' Appeals in Washington,DC, such requests for a new hearing datemust be filed with: Chief, HearingSection (0141F), Board of Veterans'Appeals, 810 Vermont Avenue NW.,Washington, DC 20420.

(2) After the period described inparagraph (c)(1) of this section haspassed, or after one change in the

earing date is granted based on arequest received during such period, thedate of the hearing will become fixed.After a hearing date has become fixed,an extension of time for appearance ata hearing will be granted only for goodcause, )vith due consideration of theinterests of other parties if a

simultaneously contested claim isinvolved. Examples of good causeinclude, but are not limited to, illness ofthe appellant and/or representative,difficulty in obtaining necessaryrecords, and unavailability of anecessary witness. The motion for a newhearing date must be in writing andmust explain why a new hearing date isnecessary. If good cause is shown, thehearing will be rescheduled for the nextavailable hearing date after theappellant or his or her representativegives notice that the contingency whichgave rise to the request forpostponement has been removed.Ordinarily, however, hearings will notbe postponed more than 30 days. In thecase of a hearing conducted by theBoard of Veterans' Appeals inWashington, DC, whether good cause forestablishing a new hearing date hasbeen shown will be determined by thepresiding Member of the hearing panelassigned to conduct the hearing. In thecase of hearings to be conducted by theBoard of Veterans' Appeals inWashington, DC, the motion for a newhearing date must be filed with: Chief,Hearing Section (0141F), Board ofVeterans' Appeals, 810 VermontAvenue, NW., Washington, DC 20420.(Authority: 38 U.S.C. 7102, 7104(a), 7105(a),7105A)

(d) Failure to appear for a scheduledhearing. If an appellant (or when ahearing only for oral argument by arepresentative has been authorized, therepresentative) fails to appear for a

uled hearing and a request forpostponement has not been receivedand granted, the case will be processedas though the request for a hearing hadbeen withdrawn. No further request fora hearing will be granted in the sameappeal unless such failure to appear waswith good cause and the cause for thefailure to appear arose under suchcircumstances that a timely request forpostponement could not have beensubmitted prior to the scheduledhearing date. A motion for a newhearing date following a failure toappear must be in writing; must besubmitted not more than 15 daysfollowing the original hearing date; andmust set forth the reason, or reasons, forthe failure to appear at the originallyscheduled hearing and the reason, orreasons, why a timely request forpostponement could not have beensubmitted. In the case of hearings to beconducted by the Board of Veterans'Appeals in Washington, DC, the motionmust be filed with: Chief, HearingSection (0141F), Board of Veterans'Appeals, 810 Vermont Avenue, NW,Washington, DC 20420. If good cause is.

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shown, the hearing will be rescheduledfor the next available hearing date afterthe appellant or his or herrepresentative gives notice that thecontingency which gave rise to thefailure to appear has been removed.Ordinarily, however, hearings will notbe postponed more than 30 days. In thecase of hearings before the Board ofVeterans' Appeals In Washington, DC,whether good cause for such failure toappear has been established will bedetermined by the presiding Member ofthe hearing panel to which the case wasassigned.(Authority: 38 U.S.C. 7102, 7104(a), 7105(a),7105A)

(a) Withdrawal of hearing requests. Arequest for a hearing may be withdrawnby an appellant at any time before thedate of the hearing. A request for ahearing may not be withdrawn by anappellant's representative without theconsent of the appellant. In the case ofhearings to be conducted by the Boardof Veterans' Appeals in Washington.DC, the notice of withdrawal must besent to: Chief, Hearing Section (0141F),Board of Veterans' Appeals, 810Vermont Avenue, NW., Washington. DC20420.(Authorlty. 38 U.S.C. 7102. 7104(a) 7105(a))(Approved by the Office of Management andBudget under control number 2000-0085.)

6. Section 20.705 is revised asfollows:

§20.705 Rule 705 Where hearings weconductsd.

A hearing on appeal before the Boardof Veterans' Appeals may be held in oneof the following places at the option ofthe appellant

(a) In Washington. DC. or(b) Before a traveling Section of the

Board of Veterans' Appeals atDepartment of Veterans Affairs facilitieshaving adequate physical resources and

ersonnel for the support of suchearings.

Authority: 38 U.S.C- 7102, 7104(a).7105(a), 7110)

7. Section 20.708 is revised to read asfollows:

120.706 Rule 70& PrehwiIng conference.An appellant's authorized

representative may request a prehearingconference with the presiding Memberof a hearing panel in order to clarify theissues to be considered at a hearing onappeal, obtain rulings on theadmissibility of evidence, developstipulations of fact, establish the lengthof argument which will be permitted, ortake other steps which will make thehearing itself more efficient and

preductive. With respect to hearings tobe held before Members of the Board atWashington, DC, arrangements for aprehearing conference must be madethrough: Chief. Hearing Section (0141F),Board of Veterans' Appeals. 810Vermont Avenue, NW., Washington, DC20420. Requests for prehearingconferences in cases involving hearingsto be held before traveling Sections ofthe Board must be addressed to theoffice of the Department of VeteransAffairs official who signed the lettergiving notice of the time and place ofthe hearing.(Authority: 38 U.S.C. 7102, 7104(a). 7105(a))

8. In section 20.714. paragraph (b) isremoved, and paragraph (c) isredesignated as the new paragraph (b)and Is revised to read as follows:

120.714 Rule 714. Record of Hearings.(a) * * *(b) Copy of hearing tape recording or

written transcript. One copy of the taperecording of hearing proceedings beforethe B= of Veterans' Appeals, or thewritten transcript of such proceedingswhen such a transcript has beenprepared in accordance with theprovisions of paragraph (a) of thissection, shell be furnished without costto the appellant or representative If arequest is made in accordance with§ 1.577 of this chapter.(Authority: 38 U.S.C. 7102. 7104(a). 7105(a))

9. Section 20.715 is revised to read asfollows:

120.716 Rule 71& Recording of hearing byappellant or representative.

An appellant or representative mayrecord the hearing with his or her ownequipment. Filming. videotaping orteleising the hearing may only beauthorized when prior written consentis obtained from all appellants andcontesting claimants, if any, and madea matter of record. In no event will suchadditional equipment be used if itinterferes with the conduct of thehearing or the official recordingapparatus. In all such situations.advance arrangements must be made. Inthe case of hearings held before theBoard of Veterans' Appeals inWashington, DC, arrangements must bemade with the Chief of the HearingSection (0141F), Board of Veterans'Appeals, 810 Vermont Avenue, NW.,Washington, DC 20420. In the case ofhearings held before traveling Sectionsof the Board. arrangements must bemade through the office of theDepartment of Veterans Affairs officialwho signed the letter giving notificationof the time and place of the hearing.(Authority: 38 U.S.C. 7102, 7104(a). 7105(a))

10. Section 20.716 is revised to readas follows:

520.716 Rule 716. Correction of heaingtranscripts.

The tape recording on file at theBoard of Veterans' Appeals or atranscript prepared by the Board ofVeterans' Appeals is the only officialrecord of a hearing before the Board.Alternate transcript versions preparedby the appellant and representative willnot be accepted. If an appellant wishesto seek correction of perceived errors Ina hearing transcript, the appellant or hisor her representative should move forthe correction of the hearing transcriptwithin 30 days after the date that thetranscript is mailed to the appellant.The motion must be in writing and mustspecify the error, or errors, in thetranscript and the correct wording to hesubstituted. In the case of hearings heldbefore the Board of Veterans' Appeals,whether in Washington, DC. or in thefield, the motion must be filed with theChief, Hearing Section (0141F), Board ofVeterans' Appeals, 810 VermontAvenue, NW., Washington, DC 20420.The ruling on the motion will be madeby the presiding Member of the hearingpanel concerned.(Authority: 38 U.S.C. 7102. 7104(a), 7105(a),7110)

11. In section 20.717, paragraphs (c)and (d) are revised to read as follows.

120.717 -Rule 717. Lose of hearing tape*or transcripts--mtion for new hering.

(a) * * *(b)* * *(c) Where motion for a new hearing is

filed. In the case of hearings held beforethe Board of Veterans' Appeals, whetherin Washington, DC. or in the field, themotion must be filed with: Chief,Hearing Section (0141F), Board ofVeterans' Appeals, 810 VermontAvenue. NW., Washington, DC 20420,

(d) Ruling on motion for a newhearing. Except as noted hereinafter, theruling on the motion for a new hearingwill be made by the presiding Memberof the hearing panel concerned. If thepresiding Member of the hearing panelis no longer available, the ruling on themotion may be made by any othermember of the hearing panel who isavailable. In cases in which a finalBoard of Veterans' Appeals decision hasalready been promulgated with respectto the appeal in question, the ruling onthe motion will be by the Chairman ofthe Board. Factors to be considered inruling on the motion include, but willnot be limited to, the extent of the lossof the record in those cases where onlya portion of a hearing tape isunintelligible or only a portion of a

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transcript has been lost or destroyed,and the extent and reasonableness ofany delay in moving for a new hearing.If a new hearing is granted in a case inwhich a final Board of VeteansAppeals decision has akeady beenpromulgated, a supplemental decisionwill be Issued.(Authority- 38 U.S.C. 7102, 71041a). 7105(aL.711a)

[FR Doc. 93-11163 Filed 5-11-93: 8:45 eamBUM CODE 8320--

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[NN-44-1-605 FRL-4651-3

Approval and Promulgation of AirQuality Implementation Plans; NewMexico; Revision to the StateImplementation PIan; Addressing NewSource Review In Nonattalnment Areas

AGENCY. Environmental ProtectionAgency (EPA).ACTION: Final rulemaldng.

SUMMARY: This document approves arevision to the New Mexico §tateImplementation Plan (SIP)to includerevisions to Air Quality ControlRegulation (AQCR) 709, the existingSIP-approved New Source Review(NSR) regulation for nonattainmentareas in t*9 State of New Mexicooutside the boundaries of Indian LaIsand Bernalillo County. These revisionswere meade in response to the NSRrequirements outlined in the Clean AirAct Arendients (CAAA) of 1990.DATES: This action will become effectiveon July 12, 1993 unless notice Isreceived within 30 days of publicationthat someone wishes to submit adverseor critical comments.ADDRESSES: Written comments on thisaction should be addressed to Mr.Thomas H. Diggs. Chief, PlanningSection, at the EPA Regional Officelisted below., Copies of the documentsrelevant to this proposed action areavailable for public inspection duringnormal business hars at the followinglocations. The interested personswanting to examine these documentsshould make an appointment with theapprop ate office at least twenty-fourhors before the visiting day.U.S. Environmental Protection Agency,

Region 6, Air Programs Branch EST-AP'). 1445 Ross Avenue, Suite 700.Dallas, Tems 75202-2733

Mr. Jerry Kurtzweg (ANR-443),Environmental Protection Agency.

401 M Street. SW., Washington, DC20460

New Mexico Environment Department,Air Quality Bureau. 1190 St. FrancisDrive, Room So. 2100. Santa Fe. NewMexico 87503

FOR FURTHER INFORMATION CONTAcT. Mr.Mark Sather, Planning Section (ST-AP),Air Programs Branch, U.S. EPA Region6, 1445 Ross Avenue, Dallas, Texas75202-2733, Telephone (214) e55-7258.

SUPPLEMENTARY INFORMATION: One areain the State of New Mexico, Anthony,was designated nonattainment for PM-10 and classified as moderate undersections 107(d)(4XB) and 188(a) of theClea Air Act (Act), upon enactment ofthe CAAA of 1990. PM-10 is defined asparticulate matter with an aerodynamicdiameter less than or equal to a nominal10 micrometers. One of the requiredItems to be included in the AnthonyPM-10 SIP was a revision to the existingnonattainment permit program. Theserevisions were to be submitted by June30, 1992, to meet the reqairements ofsection 173 of the Act fortheconstruction and operation of new andmodified major stationary gouces ofPM-1O. Please reference section189(a)(1)(A) of the Act. By cover letterdated June 12, 1992, the Governor ofNew Mexico submitted to the EPArevisions to AQCR 700, entitled PermitsNonattainment Areas, addressing NSRin nonattainment areas in the State ofNew Mexico outside the boundaries ofIndian Lands and Bernalillo County.The revisions to AQCR 709 were filedwith the State Records and ArchivesCenter on June 25, 1992. AQCR 709 wasinitially approved by the EPA on June4, 1990 (55 FR (FR) 22784). Ftrtherrevisions were approved on August 21,1990 (55 FR 34013}, and on November12, 1991 (56 FR 57492). The readershould refer to the previously citedFederal Register notices for thebackground information, history, andissues associated with this regulation.The current revisions to AQCR 709discussed in this notice arestraightforward and minimal as outlinedbelow.

Analysis of State Submiusee

1. Procedural Background

The Act requires States to observecertain procedural rquie mments Indeveloping Implementation plans forsubmission to the EPA. Section110(aX2) of the Act provides that eachimplementation plan submitted by aState msst be adopted afte reasonable

notice and public hearing.1 Section110(0) of the Act similarly provides thateach revision to an implementation plansubmitted by a State under the Act mustbe adopted by such State afterreasonable notice and public hearing.

The EPA also must determinewhether a submittal is complete andtherefore warrants further EPA reviewand action (see Section 110(k)(1) and 57FR 13565). The EPA's completenesscriteria for SIP submittals are set out at40 CFR part 51, appendix V (1991). asamended by 56 FR 42216 (August 26,1991). The EPA attempts to makecompleteness determinations within 60days of receiving a submission.However. a submittal Is deemedcomplete by operation of law if acompleteness determination is not madeby the EPA six months after receipt ofthe submission.

The State of New Mexico held apublic hearing on June 12, 1992, toentertain public comment on proposedrevisions to AQCR 709 addressing NSR.No public comments were received.Following the public hearing the SIPrevision was adopted by the State andsigned by the Governor on June 12,1992. The SIP revision was received bythe EPA on July 2, 1992.

The SIP revision was reviewed by theEPA to determine completeness shortlyafter its submittal, in accordance withthe completeness criteria set out at 40CFR part 51, appendix V (1991). A letterdated Juy 29, 1902, was fkrwarded tothe Governor indicating thecompleteness of the submittal and thenext steps to be taken in the reviewprocess. As noted in today's action, theEPA is approving this New Mexico NSRSIP submittal.

2. Revisions to Nonattainment NSRPermit Program

The State of Nw Mexico has revisedAQCR 709 in order to meetrequirements found in section 173 of theAct for the construction and operationof new and modifted major stationarysources of PM-t0. As referenced above,the State of Now Medco already has inplace a Federally eaforceable regulationfor nonettainmmt NSR (AQCR 709)Very few revisions to AQCR 709 wererequired to incorporate newnonattainment NSR requirementsoutlined in the CAAA of 1990. Thespecific revisions to AQCR 709 wrediscassed below.

The CAAA of 190 now requkies thatemission reductions obtained pursuantto section 173(c)(1), pertaining to

I Alm section 72(c(7) of t"e Act mq~uim thatplan peovlsions for nonatalnmont mm meet theapplicable provision ofrSection 110(a)(2).

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because it does not have a substantialdirect effect on one or more Indiantribes, on the relationship between theFederal Government and Indian tribes,or on the distribution of power andresponsibilities between the FederalGovernment and Indian tribes.

Environment

The Coast Guard has considered theenvironmental impact of this temporaryregulation and concluded that, underFigure 2-1, paragraph (34)(g), ofCommandant Instruction M16475.1C, itwill have no significant environmentalimpact and it is categorically excludedfrom further environmentaldocumentation. A Categorical ExclusionDetermination and EnvironmentalAnalysis Checklist will be available forinspection and copying in the docket tobe maintained at the address listed inADDRESSES.

List of Subjects in 33 CFR Part 165Harbors, Marine safety, Navigation

(water), Reporting and record keepingrequirements, Security measures,Waterways.

Regulation

For the reasons discussed in thepreamble, the Coast Guard amends 33CFR part 165 as follows:

PART 165-REGULATED NAVIGATIONAREAS AND LIMITED ACCESS AREAS

1. The authority citation for 33 CFRPart 165 continues to read as follows:

Authority: 33 U.S.C. 1231; 50 U.S.C. 191;33 CFR 1.05-1(g) 6.04-1, 6.04-6, and 160.5;49 CFR 1.46.

2. Add section 165.T11-036 to read asfollows:

§ 165.T11-036 Security Zone: San DiegoBay, CA.

(a) Location. The following area is asecurity zone: the water area withinNaval Station, San Diego enclosed bythe following points: Beginning at32o41'16.5 " N, 117o08'01 " W (Point A);thence running southwesterly to32o41'06" N, 117o08'09.3" W (Point B);thence running southeasterly along theU.S. Pierhead Line to 32o39'36.9 " N,117o07"23.5" W (Point C); thencerunning easterly to 32o39'38.5" N,117o07'06.5" W (Point D); thencerunning generally northwesterly alongthe shoreline of the Naval Station to theplace of beginning.

(b) Effective Dates. This temporaryregulation is effective May 2, 2001through October 29, 2001.

(c) Regulations. In accordance withthe general regulations in section 165.33of this part, entry into the area of this

zone is prohibited unless authorized bythe Captain of the Port or theCommanding Officer, Naval Base, SanDiego.

(d) The U.S. Navy may assist the U.S.Coast Guard in the patrol andenforcement of this security zone.

Dated: April 6, 2001.S.P. Metruck,Commander, U.S. Coast Guard, Captain ofthe Port, San Diego.[FR Doc. 01-10712 Filed 5-1-01; 8:45 am]BILLING CODE 4910-15-U

DEPARTMENT OF VETERANSAFFAIRS

38 CFR Part 3

RIN 2900-AJ99

Review of Benefit Claims Decisions

AGENCY: Department of Veterans Affairs.ACTION: Final rule.

SUMMARY: This document concerns theDepartment of Veterans Affairs' (VA)adjudication regulations. We are addingnew provisions to allow any claimantswho file a timely Notice ofDisagreement to obtain a de novo reviewof their claims at the Veterans ServiceCenter level before deciding whether toproceed with the traditional appealprocess. This is intended to provide amore efficient means for resolvingdisagreements concerning claims.DATES: Effective Date: June 1, 2001.FOR FURTHER INFORMATION CONTACT: BillRusso, Attorney-Advisor, Compensationand Pension Service, or John Bisset, Jr.,Consultant, Compensation and PensionService, Regulations Staff, VeteransBenefits Administration, 810 VermontAvenue, NW., Washington, DC 20420,telephone (202) 273-7210 and (202)273-7213, respectively.SUPPLEMENTARY INFORMATION: OnFebruary 18, 2000, VA published in theFederal Register (65 FR 8329-8330), aproposed rule which would establishprovisions at 38 CFR 3.2600 to allowany claimants who file a timely Noticeof Disagreement to obtain a de novoreview (a new and complete reviewwith no deference given to the decisionbeing reviewed) by Veterans ServiceCenter personnel before decidingwhether to proceed with the traditionalappeal process. We received writtencomments from American Veterans ofWWII, Korea and Vietnam (AMVETS),Florida Department of Veterans' Affairs,National Organization of VeteransAdvocates, Paralyzed Veterans ofAmerica, Veterans of Foreign Wars(Department of Maine), three VA

employees and two concerned privateindividuals.

Potential Changes to the TraditionalAppeal Process

We proposed to establish a new denova review procedure that would beavailable to any claimant who files aNotice of Disagreement with a decisionon a claim governed by 38 CFR part 3.We did not, and do not, intend the newde novo review procedure to change theprocedures or rights involved withappealing such claims decisions to theBoard of Veterans' Appeals. We intendit to be an additional, optionalprocedure to be conducted, if at all,between a claimant's filing a Notice ofDisagreement and VA's issuance of aStatement of the Case. If de novo reviewunder § 3.2600 is not requested with theNotice of Disagreement or after theNotice of Disagreement is filed butwithin 60 days after VA mails notice ofthe right of such review to the claimant,then the appeal will proceed inaccordance with the traditional appealprocess. However, a claimant may notpursue de novo review and thetraditional appeal simultaneously. Atraditional appeal is suspended until denovu review is complete. Otherwise,there would be a risk of duplicativedevelopment and inconsistent decisionsmade in the same claim.

Two commenters stated that theproposed regulations are unclear as towhether they change existingprocedures regarding filing andprocessing of the Notice ofDisagreement and the issuance of theStatement of the Case.

The final rule does not modify theprocedures of the traditional appealprocess. To make this clear, we areamending the proposed rule in tworespects. At the end of § 3.2600(b), weare adding language that provides that ifa claimant fails to timely request denovo review under § 3.2600, VA willproceed with the traditional appellateprocess by issuing a Statement of theCase. For clarity, we are also adding asentence to § 3.2600(b) to preclude anyextension of the time limit. Section3.109(b) allows for a good causeextension of time limits within which aclaimant is required to act to perfect aclaim or challenge an adverse VAdecision. Since the de novo reviewprocess is an optional procedure, not arequired one, § 3.109(b) does not applyto the period during which a claimantmay request the de novo review process.Moreover, VA believes that a 60-daytime limit, without the possibility ofextension, is a reasonable amount oftime for a claimant to decide whether toopt for the de novo review process.

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In addition, we are using the lastsentence of the proposed § 3.2600(b) tobegin a new § 3.2600(f). This newparagraph provides that review under§ 3.2600 does not limit the appeal rightsof a claimant, and, if the claimant doesnot withdraw his or her Notice ofDisagreement as a result of this reviewprocess, VA will proceed with thetraditional appellate process by issuinga Statement of the Case.

One commenter suggested that theproposed § 3.2600 be amended to makeclear that claimants who have filed aNotice of Disagreement may presentadditional evidence.

This final rule does not modifyexisting procedures for submission ofevidence. Under current regulations,any claimant may present additionalevidence after filing a Notice ofDisagreement (38 CFR 19.37, 20.304 and20.1304). Furthermore, § 3.2600(c)allows the reviewer to obtain additionalevidence. We therefore make no changebased on this comment.

Two commenters expressed concernthat this rulemaking would limit theright of a claimant to have a hearing atsome point following this new reviewprocess.

This final rule doesn't place anylimitations on existing rights: 38 CFR3.103(c) states, "Upon request, aclaimant is entitled to a hearing at anytime on any issue involved in a claimwithin the purview of part 3 of thischapter, subject to the limitationsdescribed in § 20.1304 of this chapterwith respect to hearings in claims whichhave been certified to the Board ofVeterans['] Appeals for appellatereview." In fact, proposed § 3.2600(b)specified that review under § 3.2600"does not limit the appellate rights of aclaimant." For these reasons, we makeno change based on these comments.

Management and Personnel Matters

One commenter predicted thatimplementation of the de novo reviewprocess that VA proposed wouldincrease the backlog of pending claimsbecause VA would assign its mostproductive adjudicators to this newreview process. This same commenterpredicted that implementation of thisreview process will cause a decline inthe quality of VA claims decisions, forthis same reason, and because therewould be insufficient oversight ofdecisions made during this reviewprocess. Another commenter expressedconcern that no benefit would be gainedfrom the de novo review process unlessVeterans Service Centers are authorizedto hire additional personnel to conductthe de novo review.

VA believes that there is no evidencethat implementation of the de novoreview process will increase the backlogof pending claims. In addition, VAbelieves that any increase in the backlogof pending claims which might occur asthe de novo review program begins, willbe offset by a greater long-termreduction in pending appeals. At thetwelve VA Veterans Service Centers thathave participated in the pilot test of theDecision Review Officer program sinceDecember 1997, there has been asignificant decline in the number ofsubstantive appeals filed. VA alsobelieves that there will be no decline inthe quality of VA decisions due to thede novo review program. There has beenno such decline at the twelve pilotService Centers. Moreover, decisionsrendered under the de novo reviewprocess will be subject to VA CentralOffice oversight under VA's SystematicTechnical Advisory Review (STAR), justlike other Service Center decisions. VAbelieves there will be significantefficiency benefits gained through thede novo review program: We believe itwill reduce the number of cases that goto the Board of Veterans' Appeals,which will in turn reduce the numberof claims which must be readjudicatedon remand from the Board of Veterans'Appeals. We therefore make no changesbased on these comments.

One commenter suggested that theDecision Review Officers should beplaced outside the chain of command ofthe Veterans Service Center Managerand report directly to the Director oftheir VA Regional Office to ensure thatthe Decision Review Officer isindependent.

VA believes that it is not necessary toremove the Decision Review Officersfrom the chain of command of theVeterans Service Center Manager inorder for them to functionindependently. Under the final rule, aService Center Manager has noauthority, other than the existing clearand unmistakable error authority under§ 3.105(a) or the difference of opinionauthority under § 3.105(b) (which mustbe approved by VA Central Office), tooverturn a Decision Review Officer'sdecision. We therefore make no changebased on this comment.

This same commenter suggested thatattorneys perform de novo reviewsunder § 3.2600, since attorneys are mostfamiliar with the statutes, regulationsand adjudication manual provisionsregarding veterans benefits.

VA believes that other staff besidesattorneys are qualified to serve asDecision Review Officers. For example,staff which are currently working asHearing Officers or Master Rating

Specialists have extensive knowledge ofstatutes, regulations and adjudicationmanual provisions regarding veteransbenefits, and are well qualified to serveas Decision Review Officers. Wetherefore make no change based on thiscomment.

Representation for Claimants

Two commenters urged that the denovo review process include aclaimant's duly appointedrepresentative, and that the proposed§ 3.2600 be amended for that purpose.

Nothing in this final rule excludes ordiscourages the participation ofclaimants' representatives. Furthermore,§ 3.103(e) states, "Subject to theprovisions of §§ 14.626 through 14.637of this title [concerning recognition ofveterans service organizations andaccreditation of individualrepresentatives], claimants are entitledto representation of their choice at everystage in the prosecution of a claim."Therefore, we believe that VAregulations make it clear that a claimantis allowed to have representation duringthis new review process, and we makeno change based on these comments.

Timing of VA Notice of Right to DeNovo Review

One commenter said that theproposed regulation fails to make itclear when the VA will send theclaimant notice of the right to the denovo review.

Based on this comment, we havespecified in § 3.2600(b) that VA willsend the notice "upon receipt of theNotice of Disagreement."

Timing of Claimant's Request for DeNovo Review

Two commenters said the proposedrule was unclear as to whether a requestfor a de novo review, filed at the sametime as the Notice of Disagreement,would be considered valid.

VA concurs. We have amended§ 3.2600(b) to provide that a claimantmay request review under § 3.2600 withhis or her Notice of Disagreement orafter the Notice of Disagreement is filedbut not later than 60 days after VA mailsnotice of the right to de novo review.

Time Limits for VA Action

One commenter suggested that thisrulemaking include a provision torequire VA to respond to a Notice ofDisagreement within 30 days. Webelieve the intent of the comment is torequire, by regulation, that VA furnishnotice of the right to a review under§ 3.2600 within 30 days of the receipt ofthe Notice of Disagreement. This

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commenter felt that this would improveVA's accountability to claimants.

VA believes that it would beinadvisable to set a deadline for VA tofurnish this notice. Instances arisewhere VA must ask the claimant toclarify some aspect of the Notice ofDisagreement. This would make itimpracticable for VA to furnish thenotice within a specified time period.We therefore make no change based onthis comment.

One commenter suggested that thisrulemaking strictly limit the time VAhas to conclude the de novo review, forexample, within 30-60 days.

We believe that it would beinadvisable to set time limits on thereview process. Due to factors such asVA's workload or illness of theclaimant, there may be unavoidabledelays in scheduling an informalconference or obtaining additionalrelevant evidence. We therefore makeno change based on this comment.

Clear and Unmistakable Error

One commenter stated the rulemakingis unclear as to whether the reviewerwill have independent authority torevise decisions based on clear andunmistakable error, or whether theVeterans Service Center Manager mustapprove such decisions.

Section 3.2600(e) clearly authorizesthe reviewer to reverse or revise priordecisions based on clear andunmistakable error under § 3.105(a)without obtaining the approval of anyother VA official. We therefore make nochange to § 3.2600 based on thiscomment. However, VA has amended§ 3.104 to make clear that not only§ 3.105 but also new § 3.2600 are validbases for revision of decisions on thesame factual basis as the initial decisionby the agency of original jurisdiction.

One commenter stated the rulemakingis unfair because it gives the reviewerauthority to revise decisions based onclear and unmistakable error in amanner unfavorable to the claimant,without any prior notice to the claimant.This same commenter stated that therulemaking should be amended to allowa claimant to obtain de novo review ofa clear and unmistakable error. Thiscommenter also stated that the potentialfor clear and unmistakable error reviewof prior, final decisions may be adisincentive to seeking a review under§ 3.2600.

As stated in § 3.2600(e), the reviewerwill have the same clear andunmistakable error authority as anyother VA adjudicator under § 3.105(a).However, we note that § 3.103(b) and§ 3.105(e) and (f) do already requireadvanced notice of proposed reductions

or terminations of benefits. With respectto clear and unmistakable error claimsfiled by claimants, under § 3.2600, ifsuch claims are denied, the claimantmay file a Notice of Disagreement, andwill then be notified of his or her rightto the de novo review process, just aswith any other claim governed by 38CFR part 3. The potential for clear andunmistakable error review is not uniqueto the de novo review process under§ 3.2600. It applies to any claim filedsubsequent to a final VA decision. Wetherefore make no change based on thiscomment.

Date of Implementation

One commenter said that theproposed regulations fail to make itclear which claimants will be eligiblefor the de novo review (i.e. those withappeals pending on the effective date ofthe regulation, or those filing claims onor after the effective date).

To clarify this issue, we have addedto proposed § 3.2600 a new paragraph(g), which states: "This section appliesto all claims in which a Notice ofDisagreement is filed on or after June 1,2001." This will provide claimants witha date certain on which the de novoreview will be available. We believe thatincluding claims which are pending atvarious stages of the appellate processwould be administratively difficultbecause the de novo review is designedto occur prior to the traditionalappellate process.

Other Comments

One commenter suggested that VAconduct de novo review in every claimin which a Notice of Disagreement isfiled, unless claimants specifically statethey do not want to go through thisreview process.

As was stated in proposed § 3.2600(b),"This [de novo] review does not limitthe appellate rights of a claimant." Webelieve the suggestion made by thiscommenter would interfere with thetraditional appeal process by requiringclaimants who want only the traditionalprocess (and not the de novo process) tofile an extra document which makesthat statement. We also believe that thede novo review process should beoptional for claimants, not mandatory.We therefore make no change based onthis comment.

One commenter suggested that afavorable decision resulting from the denovo review process need not contain acitation to the pertinent laws.

We believe that requiring all decisionsissued under the de novo reviewprocess to contain the items listed in§ 3.2600(d) will provide moreconsistent, uniform decisions. This will

benefit both claimants and the Board ofVeterans' Appeals (if the claim isultimately appealed there). We thereforemake no change based on thissuggestion.

One commenter urged that VA allowclaimants whose cases have beenremanded to the Veterans ServiceCenter by the Board of Veterans'Appeals to obtain review under § 3.2600at that stage.

Nothing in this final rule modifies thepost-remand VA claims process. Wenote, however, that no existingregulations or policies prohibit aVeterans Service Center from assigningwhatever staff they deem appropriate(including the Decision Review Officer)to review a case following a remand bythe Board of Veterans' Appeals. Reviewby a Decision Review Officer followingremand from the Board would not,however, be made under § 3.2600procedures because, as we stated above,the de novo review under § 3.2600 isdesigned to occur prior to the traditionalappellate process. We therefore make nochange based on this suggestion.

One commenter suggested that theproposed § 3.2600 be revised to give thereviewer authority to grant entitlementto non-service connected pension on anextra-schedular basis under 38 CFR3.321(b)(2).

This final rule is not intended tomodify the procedure or authorityestablished by § 3.321(b)(2), whichauthorizes only Adjudication Officers togrant pension on an extra-schedularbasis if schedular percentage standardsare not met. That procedure andauthority is intended to function as arare exception to the generalrequirement in § 4.17 that a claimantmust meet certain minimum disabilityrating percentage criteria to be entitledto pension benefits. VA believes that theAdjudication Officer (now calledVeterans Service Center Manager incertain VA Regional Offices) is capableof deciding all such claims. Wetherefore make no change based on thiscomment.

One commenter suggested that VAshould discuss the applicability of theU.S. Court of Appeals for the FederalCircuit decisions in Hayre v. West, 188F.3d 1327 (Fed. Cir. 1999), and Brownv. West, 203 F.3d 1378 (Fed. Cir. 2000),but did not elaborate.

These cases have no applicability tothe subject of this rulemaking, which isde novo review of certain appealeddecisions, so we make no change basedon this comment. We note, however,that the de novo review process will beavailable in any claim for which aNotice of Disagreement has been filedon or after the effective date of this

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regulation, including claims for anearlier effective date (e.g., Hayre) andclear and unmistakable error (e.g.,Brown).

Finally, we are making one otherchange from the proposed rule. Weproposed to add a new subpart D to part3 and a new § 3.2100, which wouldhave governed the scope of applicabilityof provisions in subpart D. After theproposed rule was published, VApublished another final rule that addedsubpart D and new § 3.2100.Accordingly, we do not include eithersubpart D or § 3.2100 in this final rule.

Executive Order 12866

The Office of Management and Budgethas reviewed this final rule underExecutive Order 12866.

Paperwork Reduction Act

This document contains no provisionsconstituting a collection of informationunder the Paperwork Reduction Act (44U.S.C. 3501-3520).

Unfunded Mandates

The Unfunded Mandates Reform Actrequires (in section 202) that agenciesprepare an assessment of anticipatedcosts and benefits before developing anyrule that may result in an expenditureby State, local, or tribal governments, inthe aggregate, or by the private sector of$100 million or more in any given year.This final rule will have noconsequential effect on State, local, ortribal governments.

Regulatory Flexibility Act

The Secretary hereby certifies that theadoption of this final rule would nothave a significant economic impact ona substantial number of small entities asthey are defined in the RegulatoryFlexibility Act, 5 U.S.C. 601-612. Thefinal rule does not directly affect anysmall entities. Only VA beneficiaries aredirectly affected. Therefore, pursuant to5 U.S.C. 605(b), these amendments areexempt from the initial and finalregulatory flexibility analysisrequirements of sections 603 and 604.

The Catalog of Federal DomesticAssistance program numbers are 64.100,64.101, 64.104, 64.105, 64.106, 64.109,64.110, and 64.127.

List of Subjects in 38 CFR Part 3

Administrative practice andprocedure, Claims, Disability benefits,Health care, Pensions, Veterans,Vietnam.

Approved: February 15, 2001.Anthony J. Principi,Secretary of Veterans Affairs.

For the reasons set forth in thepreamble, 38 CFR part 3 is amended asfollows:

PART 3-ADJUDICATION

Subpart A-Pension, Compensation,and Dependency and IndemnityCompensation

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

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

§3.104 Amended

2. In § 3.104, paragraph (a), the secondsentence is amended by removing"§ 3.105" and adding, in its place,"§ 3.105" and adding, in its place,"§ 3.105 and § 3.2600".

§3.105 Amended

3. In § 3.105, paragraph (b) isamended by adding, as the lastsentence, "However, a decision may berevised under § 3.2600 without beingrecommended to Central Office."

Subpart D-Universal AdjudicationRules That Apply to Benefit ClaimsGoverned by Part 3 of this Title

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

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

5. A new undesignated center headingand § 3.2600 are added to subpart D toread as follows:

Revisions

§3.2600 Review of benefit claimsdecisions.

(a) A claimant who has filed a timelyNotice of Disagreement with a decisionof an agency of original jurisdiction ona benefit claim has a right to a reviewof that decision under this section. Thereview will be conducted by anAdjudication Officer, Veterans ServiceCenter Manager, or Decision ReviewOfficer, at VA's discretion. Anindividual who did not participate inthe decision being reviewed willconduct this review. Only a decisionthat has not yet become final (byappellate decision or failure to timelyappeal) may be reviewed. Review underthis section will encompass onlydecisions with which the claimant hasexpressed disagreement in the Notice ofDisagreement. The reviewer willconsider all evidence of record andapplicable law, and will give no

deference to the decision beingreviewed.

(b) Unless the claimant has requestedreview under this section with his orher Notice of Disagreement, VA will,upon receipt of the Notice ofDisagreement, notify the claimant inwriting of his or her right to a reviewunder this section. To obtain such areview, the claimant must request it notlater than 60 days after the date VAmails the notice. This 60-day time limitmay not be extended. If the claimantfails to request review under this sectionnot later than 60 days after the date VAmails the notice, VA will proceed withthe traditional appellate process byissuing a Statement of the Case. Aclaimant may not have more than onereview under this section of the samedecision.

(c) The reviewer may conductwhatever development he or sheconsiders necessary to resolve anydisagreements in the Notice ofDisagreement, consistent withapplicable law. This may include anattempt to obtain additional evidence orthe holding of an informal conferencewith the claimant. Upon the request ofthe claimant, the reviewer will conducta hearing under § 3.103(c).

(d) The reviewer may grant a benefitsought in the claim notwithstanding§ 3.105(b), but, except as provided inparagraph (e) of this section, may notrevise the decision in a manner that isless advantageous to the claimant thanthe decision under review. A reviewdecision made under this section willinclude a summary of the evidence, acitation to pertinent laws, a discussionof how those laws affect the decision,and a summary of the reasons for thedecision.

(e) Notwithstanding any otherprovisions of this section, the reviewermay reverse or revise (even ifdisadvantageous to the claimant) priordecisions of an agency of originaljurisdiction (including the decisionbeing reviewed or any prior decisionthat has become final due to failure totimely appeal) on the grounds of clearand unmistakable error (see § 3.105(a)).

(f) Review under this section does notlimit the appeal rights of a claimant.Unless a claimant withdraws his or herNotice of Disagreement as a result ofthis review process, VA will proceedwith the traditional appellate process byissuing a Statement of the Case.

(g) This section applies to all claimsin which a Notice of Disagreement isfiled on or after June 1, 2001.

(Authority: 38 U.S.C. 5109A and 7105(d))

[FR Doc. 01-11028 Filed 5-1-01; 8:45 am]BILLING CODE 8320-01-U

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Civil Justice Reform

This rule meets applicable standardsin sections 3(a) and 3(b)(2) of ExecutiveOrder 12988, Civil Justice Reform, tominimize litigation, eliminateambiguity, and reduce burden.

Protection of Children

We have analyzed this rule underExecutive Order 13045, Protection ofChildren from Environmental HealthRisks and Safety Risks. This rule is notan economically significant rule anddoes not create an environmental risk tohealth or risk to safety that maydisproportionately affect children.

Indian Tribal Governments

This rule does not have tribalimplications under Executive Order13175, Consultation and Coordinationwith Indian Tribal Governments,because it does not have a substantialdirect effect on one or more Indiantribes, on the relationship between theFederal Government and Indian tribes,or on the distribution of power andresponsibilities between the FederalGovernment and Indian tribes.

Energy Effects

We have analyzed this rule underExecutive Order 13211, ActionsConcerning Regulations ThatSignificantly Affect Energy Supply,Distribution, or Use. We havedetermined that it is not a "significantenergy action" under that order becauseit is not a "significant regulatory action"under Executive Order 12866 and is notlikely to have a significant adverse effecton the supply, distribution, or use ofenergy. The Administrator of the Officeof Information and Regulatory Affairshas not designated it as a significantenergy action. Therefore, it does notrequire a Statement of Energy Effectsunder Executive Order 13211.

Technical Standards

The National Technology Transferand Advancement Act (NTTAA) (15U.S.C. 272 note) directs agencies to usevoluntary consensus standards in theirregulatory activities unless the agencyprovides Congress, through the Office ofManagement and Budget, with anexplanation of why using thesestandards would be inconsistent withapplicable law or otherwise impractical.Voluntary consensus standards aretechnical standards (e.g., specificationsof materials, performance, design, oroperation; test methods; samplingprocedures; and related managementsystems practices) that are developed oradopted by voluntary consensusstandards bodies.

This rule does not use technicalstandards. Therefore, we did notconsider the use of voluntary consensusstandards.

Environment

We have analyzed this rule underDepartment of Homeland SecurityManagement Directive 023-01 andCommandant Instruction M16475.lD,which guide the Coast Guard incomplying with the NationalEnvironmental Policy Act of 1969(NEPA) (42 U.S.C. 4321-4370f), andhave concluded this action is one of acategory of actions that do notindividually or cumulatively have asignificant effect on the humanenvironment. This rule is categoricallyexcluded, under figure 2-1, paragraph(34)(g), of the Instruction. This ruleinvolves the establishment of a RNA. Anenvironmental analysis checklist and acategorical exclusion determination areavailable in the docket where indicatedunder ADDRESSES.

List of Subjects in 33 CFR Part 165

Harbors, Marine safety, Navigation(water), Reporting and recordkeepingrequirements, Security measures,Waterways.

For the reasons discussed in thepreamble, the Coast Guard amends 33CFR part 165 as follows:

PART 165-REGULATED NAVIGATIONAREAS AND LIMITED ACCESS AREAS

m 1. The authority citation for part 165continues to read as follows:

Authority: 33 U.S.C. 1226, 1231; 46 U.S.C.Chapter 701, 3306, 3703; 50 U.S.C. 191, 195;33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L.107-295, 116 Stat. 2064; Department ofHomeland Security Delegation No. 0170.1.

* 2. Add § 165.TO1-0727 to read asfollows:

§165.TO1-0727 Regulated NavigationArea; Arthur Kill, NY and NJ.

(a) Regulated Area. The following areais a regulated navigation area: all watersof the North of Shooters Island Reach,Elizabethport Reach, and GulfportReach in the Arthur Kill; bounded in thenortheast by a line drawn from position400 38'48.637" N, 0740 09'18.204" W; toa point in position 40'38"37.815" N,0740 09'20.245" W; and bounded in thesouthwest by a line drawn from position400 37'15.643" N, 0740 12'15.927" W; toa point in position 400 37'15.779" N,0740 12'08.0622" W. All geographiccoordinates are North American Datumof 1983 (NAD 83).

(b) Regulations.(1) The general regulations contained

in 33 CFR 165.13 apply.

(2) All vessels must remain at least150 feet from all drilling and blastingequipment; if a vessel must pass within150 feet of drilling and blastingequipment for reasons of safety, theyshall contact the dredge and/or blastingbarge on Channel 13.

(3) No vessel shall enter or transit anywork area where drill barges and/ordredges are located without thepermission of Vessel Traffic ServiceNew York (VTSNY) Director.

(4) No vessel may be underway within1,500 feet of the blasting area duringblasting operations.

(5) No vessel shall enter an area ofdrilling or blasting when they areadvised by the drilling barge or VTSNYthat a misfire or hang fire has occurred.

(6) Vessel Movement ReportingSystem (VMRS) users are prohibitedfrom meeting or overtaking other vesselswhen transiting alongside an activework area where dredging and drillingequipment are being operated.

(7) Each vessel transiting in thevicinity of a work area where dredgesare located is required to do so atreduced speed to maintainmaneuverability while minimizing theeffects of wake and surge.

(8) The VTSNY Director may imposeadditional requirements through VTSmeasures, as per 33 CFR 161.11.

(c) Effective Period. This rule iseffective from 8 a.m. on August 12, 2011until 5 p.m. on April 1, 2014.

Dated: 12 Aug 2011.J.B. McPherson,Captain, U.S. Coast Guard, Commander, FirstCoast Guard District, Acting.[FR Doe. 2011-21460 Filed 8-22-11; 8:45 am]

BILLING CODE 9110-04-P

DEPARTMENT OF VETERANS

AFFAIRS

38 CFR Parts 3 and 20

RIN 2900-AO06

Rules Governing Hearings Before theAgency of Original Jurisdiction and theBoard of Veterans' Appeals;Clarification

AGENCY: Department of Veterans Affairs.ACTION: Final rule.

SUMMARY: The Department of VeteransAffairs (VA) is amending its hearingregulations to clarify that the provisionsregarding hearings before the Agency ofOriginal Jurisdiction (AOJ) do not applyto hearings before the Board of Veterans'Appeals (Board).DATES: Effective Date: This rule iseffective August 23, 2011.

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FOR FURTHER INFORMATION CONTACT:Laura H. Eskenazi, Principal DeputyVice Chairman, Board of Veterans'Appeals (012), Department of VeteransAffairs, 810 Vermont Avenue, NW.,Washington, DC 20420, (202) 461-8078.(This is not a toll-free number.)SUPPLEMENTARY INFORMATION: Thisdocument amends 38 CFR parts 3 and20 to clarify existing hearing practicesand procedures before the AOJ and theBoard. Specifically, VA is amending§ 3.103(a) and (c) to clarify that thehearing procedures outlined in § 3.103apply to hearings held before the AOJand not to hearings held before theBoard. VA is also amending § 20.706 tofurther clarify that Board Memberspresiding over a hearing on appeal arenot bound by the hearing procedures in§ 3.103(c) and must conduct hearings inaccordance with part 20, subpart H,which contains provisions governingBoard hearing practice and procedure.In Appendix A to part 20, VA isremoving the cross references to § 3.103.

VA has determined these clarifyingchanges are necessary because of arecent decision by the United StatesCourt of Appeals for Veterans Claims(Court) in Bryant v. Shinseki, 23 Vet.App. 488 (2010), that applied theprovisions of § 3.103(c)(2) to a Boardhearing. The Bryant Court held that theprovisions of § 3.103(c)(2) require a"Board hearing officer" to "fully explainthe issues still outstanding that arerelevant and material to substantiatingthe claim" and to "suggest that aclaimant submit evidence on an issuematerial to substantiating the claimwhen the record is missing anyevidence on that issue or when thetestimony at the hearing raises an issuefor which there is no evidence in therecord." Id. at 496-97. The Courtconcluded with respect to one of theservice connection claims on appealthat the Veteran had been prejudicedbecause the presiding "Board hearingofficer" had not explained mattersmaterial to the outcome of the claim andhad not suggested that the Veterancould secure evidence regarding a nexusbetween his current disability andservice. Id. at 499. The Court foundprejudice existed because evidence of anexus was not of record at the time ofthe hearing and remained lacking at thetime of the decision. Id.

In reaching its conclusions, the Courtrelied in part on its previous holding inDouglas v. Derwinski, 2 Vet. App. 435(1992), which held that the provisionsof § 3.103(c) applied to hearings beforethe Board. Bryant, 23 Vet. App. at 494(citing Douglas, 2 Vet. App. at 442). Atthe time the Court decided Douglas, the

Board's Rules of Practice provided thathearings on appeal could be held: "(a)[b]efore a section of the Board ofVeterans' Appeals in Washington, DC[;](b) * * * before a traveling section ofthe Board of Veterans' Appeals duringregularly scheduled visits to [VA]facilities[;] [or] (c) [b]efore appropriatepersonnel in the [VA] regional or otheroffice nearest the appellant's residence,acting as a hearing agency for the Boardof Veterans' Appeals." 38 CFR 19.160(1991). Under the former rules, if anappellant chose to have a hearing beforeemployees of the AOJ acting as ahearing agency for the Board, then he orshe was not entitled to a subsequenthearing before a Board Member. See id.;see also Veterans BenefitsAdministration, M21-1 AdjudicationProcedures Manual, § 18.17g (1991) ("Aformal hearing on appeal at a regionaloffice will be in lieu of such a hearingbefore the [Board], except in theunusual case in which a specialappearance by the claimant before the[Board], or the special attention of anaccredited organization's headquartersin Washington, DC, is requested by theappellant.").

Not long after the Court decidedDouglas, the Board amended its hearingregulations to terminate the practice ofAOJ personnel holding appellatehearings on the Board's behalf. The finalrulemaking noted that the Board wasimplementing these changes because ithad decided "a clear demarcationshould exist between the conduct ofhearings by the Board and hearingsconducted by [Veterans BenefitsAdministration] employees at regionaloffices." 58 FR 27934, 27934 (May 12,1993). As a result of this proceduralmodification, an appellant now has theopportunity to appear for a hearing withthe AOJ at any time prior to when hisor her appeal is certified to the Board.38 CFR 3.103(a); Your Rights to AppealOur Decision, VA Form 4107 (Sept.2009). The appellant also has a right toappear at a separate hearing on appealbefore a Board Member. 38 CFR20.700(a); see VA Form 4107 (statingthat a hearing before the AOJ is separatefrom any hearing an appellant may laterrequest before the Board); see alsoGambill v. Shinseki, 576 F.3d 1307,1315, 1316 (Fed. Cir. 2009) (Bryson, J.,concurring) (explaining that anappellant has a right to appear athearings before the AOJ and the Board).

The 1993 regulatory changes reflectedVA's intent to clearly distinguishhearings before AOJs from hearingsbefore the Board, including the duties ofthe respective VA personnel conductingthe hearing. As a result of these changes,it has become standard VA practice and

procedure that hearings before AOJs aregoverned by § 3.103 and hearings beforethe Board are governed by relevantprovisions in part 20. The Court'sholding in Bryant brought to light thatthe pertinent regulations do not clearlyreflect VA's intent. Therefore, VA hasdecided to make clarifying changes to§§ 3.103 and 20.706 to ensure that thedistinction between the duties of AOJhearing officers and Board Members(also known as Veterans Law Judges(VLJs), see § 19.2(b)) is clear on the faceof the pertinent regulations and will notresult in further confusion.

In part 3, VA is revising § 3.103(a) toclarify that the provisions governinghearings in § 3.103 only apply tohearings conducted before the AOJ andthat the provisions in part 20 governhearings before the Board. VA is alsoremoving the following language from§ 3.103(c)(1): "subject to the limitationsdescribed in § 20.1304 of this chapterwith respect to hearings in claims whichhave been certified to the Board ofVeterans Appeals for appellate review."This language is not necessary since therevision to paragraph (a) clarifies that§ 3.103 does not apply to Boardhearings. VA is also revising paragraph(c)(1) to change references to "originaldeterminative authority" to "VA officehaving original jurisdiction". Thislanguage is consistent with otherportions of § 3.103(c)(1).

In part 20, VA is amending § 20.706to state that the conduct of hearings bypresiding Board Members or VLJs isgoverned by subpart H of part 20 andthat Board Members are not bound bythe hearing provisions of § 3.103(c). InAppendix A, VA is removing two crossreferences to § 3.103 listed for §§ 20.1and 20.1304 to ensure they do not causeany confusion regarding the correctapplicability of § 3.103.

Administrative Procedure Act

This document merely clarifiescurrent procedures for obtaining andconducting a hearing on a claim for VAbenefits before the VA agency of originaljurisdiction or the Board. It does notcreate new procedure, and nosubstantive change is intended.Accordingly, this document is beingpublished as a final rule pursuant to 5U.S.C. 553(b)(A), which exceptsprocedural rules from the APA's notice-and-comment and delayed effective daterequirements.

Paperwork Reduction Act

This document contains no provisionsconstituting a collection of informationunder the Paperwork Reduction Act (44U.S.C. 3501-3521).

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Regulatory Flexibility Act

The initial and final regulatoryflexibility analysis requirements ofsections 603 and 604 of the RegulatoryFlexibility Act, 5 U.S.C. 601-612, arenot applicable to this rule because anotice of proposed rulemaking is notrequired for this rule. Even so, theSecretary of Veterans Affairs herebycertifies that this final rule will not havea significant economic impact on asubstantial number of small entities asthey are defined in the RegulatoryFlexibility Act, 5 U.S.C. 601-612. Thisrule will affect only individual VAbeneficiaries and will not directly affectsmall entities. Therefore, pursuant to 5U.S.C. 605(b), this final rule is exemptfrom the initial and final regulatoryflexibility analysis requirements ofsections 603 and 604.

Executive Order 12866-RegulatoryPlanning and Review

Executive Order 12866 directsagencies to assess all costs and benefitsof available regulatory alternatives and,when regulation is necessary, to selectregulatory approaches that maximizenet benefits (including potentialeconomic, environmental, public healthand safety, and other advantages;distributive impacts; and equity). TheExecutive Order classifies a "significantregulatory action," requiring review bythe Office of Management and Budget(OMB) unless OMB waives such review,as any regulatory action that is likely toresult in a rule that may: (1) Have anannual effect on the economy of $100million or more, or adversely affect ina material way the economy, a sector ofthe economy, productivity, competition,jobs, the environment, public health orsafety, or State, local, or tribalgovernments or communities; (2) createa serious inconsistency or otherwiseinterfere with an action planned ortaken by another agency; (3) materiallyalter the budgetary impact ofentitlements, grants, user fees or loanprograms or the rights and obligations ofrecipients thereof, or (4) raise novellegal or policy issues arising out of legalmandates, the President's priorities, orthe principles set forth in the ExecutiveOrder.

VA has examined the economic,interagency, legal, and policyimplications of this rulemaking and hasconcluded that it is not a significantregulatory action under the ExecutiveOrder.

Unfunded Mandates

The Unfunded Mandates Reform Actof 1995 requires, at 2 U.S.C. 1532, thatagencies prepare an assessment of

anticipated costs and benefits beforeissuing any rule that may result in anexpenditure by State, local, and tribalgovernments, in the aggregate, or by theprivate sector of $100 million or more(adjusted annually for inflation) in anygiven year. This rule would have nosuch effect on State, local, and tribalgovernments, or on the private sector.

Catalog of Federal Domestic AssistanceNumbers and Titles

The Catalog of Federal DomesticAssistance program numbers and titlesfor this rule are 64.100, Automobilesand Adaptive Equipment for CertainDisabled Veterans and Members of theArmed Forces; 64.101, Burial ExpensesAllowance for Veterans; 64.102,Compensation for Service-ConnectedDeaths for Veterans' Dependents;64.103, Life Insurance for Veterans;64.104, Pension for Non-Service-Connected Disability for Veterans;64.105, Pension to Veterans SurvivingSpouses, and Children; 64.106,Specially Adapted Housing for DisabledVeterans; 64.109, VeteransCompensation for Service-ConnectedDisability; 64.110, Veterans Dependencyand Indemnity Compensation forService-Connected Death; 64.114,Veterans Housing-Guaranteed andInsured Loans; 64.115, VeteransInformation and Assistance; 64.116,Vocational Rehabilitation for DisabledVeterans; 64.117, Survivors andDependents Educational Assistance;64.118, Veterans Housing-Direct Loansfor Certain Disabled Veterans; 64.119,Veterans Housing-Manufactured HomeLoans; 64.120, Post-Vietnam EraVeterans' Educational Assistance;64.124, All-Volunteer Force EducationalAssistance; 64.125, Vocational andEducational Counseling forServicemembers and Veterans; 64.126,Native American Veteran Direct LoanProgram; 64.127, Monthly Allowancefor Children of Vietnam Veterans Bornwith Spina Bifida; and 64.128,Vocational Training and Rehabilitationfor Vietnam Veterans' Children withSpina Bifida or Other Covered BirthDefects.

Signing Authority

The Secretary of Veterans Affairs, ordesignee, approved this document andauthorized the undersigned to sign andsubmit the document to the Office of theFederal Register for publicationelectronically as an official document ofthe Department of Veterans Affairs. JohnR. Gingrich, Chief of Staff, Departmentof Veterans Affairs, approved thisdocument on August 16, 2011, forpublication.

List of Subjects

38 CFR Part 3

Administrative practice andprocedure, Claims, Disability benefits,Health care, Pensions, Radioactivematerials, Veterans, Vietnam.

38 CFR Part 20

Administrative practice andprocedure, Claims, Veterans.

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

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

PART 3-ADJUDICATION

Subpart A-Pension, Compensation,and Dependency and IndemnityCompensation

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

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

* 2. Amend § 3.103 by:m a. Revising the last sentence ofparagraph (a) and adding a newsentence after the last sentence.* b. Revising paragraph (c)(1).

The revisions read as follows:

§3.103 Procedural due process andappellate rights.

(a) * * * The provisions of thissection apply to all claims for benefitsand relief, and decisions thereon, withinthe purview of this part 3, except thatthe provisions of this section governinghearings apply only to hearingsconducted before the VA office havingoriginal jurisdiction over the claim.Hearings before the Board of Veterans'Appeals are governed by part 20 of thischapter.

(c) * * * (1) Upon request, a claimantis entitled to a hearing at any time onany issue involved in a claim within thepurview of part 3 of this chapter. VAwill provide the place of hearing in theVA office having original jurisdictionover the claim or at the VA officenearest the claimant's home havingadjudicative functions, or, subject toavailable resources and solely at theoption of VA, at any other VA facilityor federal building at which suitablehearing facilities are available. VA willprovide one or more employees of theVA office having original jurisdictionover the claim to conduct the hearingand to be responsible for establishment

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and preservation of the hearing record.Hearings in connection with proposedadverse actions and appeals shall beheld before one or more employees ofthe VA office having originaljurisdiction over the claim who did notparticipate in the proposed action or thedecision being appealed. All expensesincurred by the claimant in connectionwith the hearing are the responsibilityof the claimant.

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

* 3. The authority citation for part 20continues to read as follows:

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

Subpart H-Hearings on Appeal

* 4. Revise § 20.706 to read as follows:

§20.706 Rule 706. Functions of thepresiding Member.

The presiding Member is responsiblefor the conduct of the hearing, inaccordance with the provisions ofsubpart H of this part, administering theoath or affirmation, and ruling onquestions of procedure. The presidingMember will assure that the course ofthe hearing remains relevant to theissue, or issues, on appeal and that thereis no cross-examination of the parties orwitnesses. The presiding Member willtake such steps as may be necessary tomaintain good order at hearings andmay terminate a hearing or direct that

the offending party leave the hearing ifan appellant, representative, or witnesspersists in disruptive behavior. Thepresiding Member is not bound by theprocedures described in § 3.103(c) ofthis chapter, as those procedures onlyapply to hearings before the agency oforiginal jurisdiction.

* 5. Amend APPENDIX A TO PART20-CROSS-REFERENCES table by:

m a. Removing entries "20.1"; "38 CFR3.103(a)"; and "Statement of policy.".

* b. Revising entry 20.1304 to read asfollows:

APPENDIX A TO PART 20-CROSS-REFERENCES

Title of cross-Sec. Cross-reference referenced material

or comment

20 .1304 ................................................. 38 C F R 20 .700- 20 .7 17 ...................................................................................... S ee also re hea rings.

[FR Doe. 2011-21513 Filed 8-22-11; 8:45 am]

BILLING CODE 8320-01-P

DEPARTMENT OF VETERANSAFFAIRS

38 CFR Part 63

RIN 2900-AN73

Health Care for Homeless VeteransProgram

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

SUMMARY: This final rule establishesregulations for contracting withcommunity-based treatment facilities inthe Health Care for Homeless Veterans(HCHV) program of the Department ofVeterans Affairs (VA). The HCHVprogram assists certain homelessveterans in obtaining treatment fromnon-VA community-based providers.The final rule formalizes VA's policiesand procedures in connection with thisprogram and clarifies that veterans withsubstance use disorders may qualify forthe program.

DATES: Effective Date: September 22,2011.

FOR FURTHER INFORMATION CONTACT:Robert Hallett, Healthcare for HomelessVeterans Manager, c/o Bedford VAMedical Center, 200 Springs Road, Bldg.

12, Bedford, MA 01730; (781) 687-3187(this is not a toll free number).SUPPLEMENTARY INFORMATION: TheHCHV program is authorized by 38U.S.C. 2031, under which VA mayprovide outreach as well as "care,treatment, and rehabilitative services(directly or by contract in community-based treatment facilities, includinghalfway houses)" to "veterans sufferingfrom serious mental illness, includingveterans who are homeless." One ofVA's National priorities is a renewedeffort to end homelessness for veterans.For this reason, we are establishingregulations that are consistent with thecurrent administration of this program.

The primary mission of the HCHVprogram is to use outreach efforts tocontact and engage veterans who arehomeless and suffering from seriousmental illness or a substance usedisorder. Many of the veterans forwhom the HCHV program is designedhave not previously used VA medicalservices or been enrolled in the VAhealth care system.

Through the HCHV program, VAidentifies homeless veterans withserious mental illness and/or substanceuse disorder, usually through medicalintervention, and offers community-based care to those whose conditionsare determined, clinically, to bemanaged sufficiently that theindividuals can participate in such care.We have assisted homeless veterans

with substance use disorders throughthis program because, based on ourpractical understanding and experience,the vast majority of homeless veteranshave substance use disorders. Treatingsubstance use as a mental disorder isconsistent with the generally accepted"disease model" of alcoholism and drugaddiction treatment, as well as themodern use of medical intervention totreat the condition. We believe that if asubstance use disorder is a contributingcause of homelessness, then thatdisorder is serious; therefore, it isconsistent to include such veterans in aprogram designed for "veteranssuffering from serious mental illness,including veterans who are homeless."38 U.S.C. 2031(a).

Veterans who are identified and whochoose to participate in this form of careas part of their treatment plan are thenreferred by VA to an appropriate non-VA community-based provider. In somecases, VA will continue to activelymedically manage the veteran'scondition, while in other cases a VAclinician may determine that a veterancan be sufficiently managed throughutilization of non-medical resources,such as 12-step programs.

To provide the community-basedcare, the HCHV program contracts withnon-VA community-based providers,such as halfway houses, to provide tothese veterans housing and mentalhealth and/or substance use disorder

52575

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ADD-145

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APPENDIX

APPENDIX

TABLE OF CONTENTS Page

Department of Veterans Affairs, Rules Governing Hearings Before the Agency of Original Jurisdiction and the Board of Veterans’ Appeals; Clarification, 76 Fed. Reg. 52,572 (Aug. 23, 2011)................................ APP-1

Certified List of Items Comprising the Administrative Record ..................... APP-5

52572 Federal Register/Vol. 76, No. 163/Tuesday, August 23, 2011/Rules and Regulations

Civil Justice Reform

This rule meets applicable standards

in sections 3(a) and 3(b)(2) of Executive

Order 12988, Civil Justice Reform, to

minimize litigation, eliminate

ambiguity, and reduce burden.

Protection of Children

We have analyzed this rule under

Executive Order 13045, Protection of

Children from Environmental Health

Risks and Safety Risks. This rule is not

an economically significant rule and

does not create an environmental risk to

health or risk to safety that may

disproportionately affect children.

Indian Tribal Governments

This rule does not have tribal

implications under Executive Order

13175, Consultation and Coordination

with Indian Tribal Governments,

because it does not have a substantial

direct effect on one or more Indian

tribes, on the relationship between the

Federal Government and Indian tribes,

or on the distribution of power and

responsibilities between the Federal

Government and Indian tribes.

Energy Effects

We have analyzed this rule under

Executive Order 13211, Actions

Concerning Regulations That

Significantly Affect Energy Supply,Distribution, or Use. We have

determined that it is not a “significantenergy action” under that order because

it is not a “significant regulatory action”

under Executive Order 12666 and is not

likely to have a significant adverse effect

on the supply, distribution, or use of

energy. The Administrator of the Office

of Information and Regulatory Affairs

has not designated it as a significantenergy action. Therefore, it does not

require a Statement of Energy Effects

under Executive Order13211.

Technical Standards

The National Technology Transfer

and Advancement Act (NTTAA) (15U.S.C. 272 note) directs agencies to use

voluntary consensus standards in their

regulatory activities unless the agency

provides Congress, through the Office of

Management and Budget, with an

explanation of why using these

standards would be inconsistent with

applicable law or otherwise impractical.Voluntary consensus standards are

technical standards (e.g., specificationsof materials, performance, design, or

operation; test methods; samplingprocedures; and related managementsystems practices) that are developed or

adopted by voluntary consensus

standards bodies.

This rule does not use technical

standards. Therefore, we did not

consider the use of voluntary consensus

standards.

Environment

We have analyzed this rule under

Department of Homeland SecurityManagement Directive 023—01 and

Commandant Instruction M16475.1D,which guide the Coast Guard in

complying with the National

Environmental Policy Act of 1969

(NEPA) (42 U.S.C. 4321—4370f), and

have concluded this action is one of a

category of actions that do not

individually or cumulatively have a

significant effect on the human

environment. This rule is categoricallyexcluded, under figure 2—1, paragraph(34)(g), of the Instruction. This rule

involves the establishment of a RNA. An

environmental analysis checklist and a

categorical exclusion determination are

available in the docket where indicated

under ADDRESSES.

List of Subjects in 33 CFR Part 165

Harbors, Marine safety, Navigation(water), Reporting and recordkeepingrequirements, Security measures,

Waterways.For the reasons discussed in the

preamble, the Coast Guard amends 33

CFR part 165 as follows:

PART 165—REGULATED NAVIGATION

AREAS AND LIMITED ACCESS AREAS

• 1. The authority citation for part 165

continues to read as follows:

Authority~ 33 U.S.C. 1226, 1231; 46 U.s.c.

Chapter 701, 3306, 3703; 50 U.s.c. 191, 195;

33 CFR 1.05—1, 6.04—1, 6.04—6. 160.5; Pub. L.

107—295, 116 Stat. 2064; Department of

Homeland Security Delegation t’Io. 0170.1.

• 2. Add § 165.T01—0727 to read as

follows:

§ 1 65.TO1—0727 Regulated NavigationArea; Arthur Kill, NY and NJ.

(a) Regulated Area. The following area

is a regulated navigation area: all waters

of the North of Shooters Island Reach,

Elizabethport Reach, and GulfportReach in the Arthur Kill; bounded in the

northeast by a line drawn from position400 38’48.637” N, 074° 09’18.204” W; to

a point in position 40°38’37.815” N,074° 09’20.245” W; and bounded in the

southwest by a line drawn from position40° 37’15.643” N, 0740 12’15.927” W; to

a point in position 40° 37’15.779” N,074° 12’08.0622” W. All geographiccoordinates are North American Datum

of 1983 (NAD 83).(b) Regulations.(1) The general regulations contained

in 33 CFR 165.13 apply.

(2) All vessels must remain at least

150 feet from all drilling and blastingequipment; if a vessel must pass within

150 feet of drilling and blastingequipment for reasons of safety, theyshall contact the dredge andior blastingbarge on Channel 13.

(3) No vessel shall enter or transit anywork area where drill barges and/or

dredges are located without the

permission of Vessel Traffic Service

New York (VTSNY) Director.

(4) No vessel may be underway within

1,500 feet of the blasting area duringblasting operations.

(5) No vessel shall enter an area of

drilling or blasting when they are

advised by the drilling barge or VTSNY

that a misfire or hang fire has occurred.

(6) Vessel Movement ReportingSystem (VMRS) users are prohibitedfrom meeting or overtaking other vessels

when transiting alongside an active

work area where dredging and drillingequipment are being operated.

(7) Each vessel transiting in the

vicinity of a work area where dredgesare located is required to do so at

reduced speed to maintain

maneuverability while minimizing the

effects of wake and surge.

(8) The VTSNY Director may imposeadditional requirements through VTSmeasures, as per 33 CFR 161.11.

(c) Effective Period. This rule is

effective from 8 a.m. on August 12, 2011

until 5 p.m. on April 1, 2014.

Dated: 12 Aug 2011.

J.B. McPherson,

Captain, U.S. Coast Guard, Commander, First

Coast Guard District, Acting.

FR Doc. 2011—21460 Filed 8—22—li; 8:45 am]

BILUNO CODE 9110-04—P

DEPARTMENT OF VETERANS

AFFAIRS

38 CFR Parts 3 and 20

RIN 2900-A006

Rules Governing Hearings Before the

Agency of Original Jurisdiction and the

Board of Veterans’ Appeals;Clarification

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

SUMMARY: The Department of Veterans

Affairs (VA) is amending its hearingregulations to clarify that the provisionsregarding hearings before the Agency of

Original Jurisdiction (AOJ) do not applyto hearings before the Board of Veterans’

Appeals (Board).

DATES: Effective Date: This rule is

effective August 23, 2011.

APP-1

Federal Register/Vol. 76, No. 163/Tuesday, August 23, 2011/Rules and Regulations 52573

FOR FURThER INFORMATION CONTACT:

Laura H. Eskenazi, Principal DeputyVice Chairman, Board of Veterans’

Appeals (012), Department of Veterans

Affairs, 810 Vermont Avenue, NW.,

Washington~ DC 20420, (202) 461—8078.

(This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: This

document amends 38 CFR parts 3 and

20 to clarify existing hearing practicesand procedures before the AOJ and the

Board. Specifically, VA is amending§ 3.103(a) and (c) to clarify that the

hearing procedures outlined in § 3.103

apply to hearings held before the AOJand not to hearings held before the

Board. VA is also amending § 2 0.706 to

further clarify that Board Members

presiding over a hearing on appeal are

not bound by the hearing procedures in

§ 3.103(c) and must conduct hearings in

accordance with part 20, subpart H,which contains provisions governingBoard hearing practice and procedure.In Appendix A to part 20, VA is

removing the cross references to § 3.103.

VA has determined these clarifyingchanges are necessary because of a

recent decision by the United States

Court of Appeals for Veterans Claims

(Court) in Biyant v. Shinseki, 23 Vet.

App. 488 (2010), that applied the

provisions of § 3.103(c)(2) to a Board

hearing. The Biyant Court held that the

provisions of § 3.103(c)(2) require a

“Board hearing officer” to “fully explainthe issues still outstanding that are

relevant and material to substantiatingthe claim” and to “suggest that a

claimant submit evidence on an issue

material to substantiating the claim

when the record is missing anyevidence on that issue or when the

testimony at the hearing raises an issue

for which there is no evidence in the

record.” Id. at 496—97. The Court

concluded with respect to one of the

service connection claims on appealthat the Veteran had been prejudicedbecause the presiding “Board hearingofficer” had not explained matters

•

material to the outcome of the claim and

had not suggested that the Veteran

could secure evidence regarding a nexus

between his current disability andservice. Id. at 499. The Court found

prejudice existed because evidence of a

nexus was not of record at the time of

the hearing and remained lacking at the

time of the decision. Id.

In reaching its conclusions, the Court

relied in part on its previous holding in

Douglas v. Deiwinski, 2 Vet. App. 435

(1992), which held that the provisionsof § 3.103(c) applied to hearings before

the Board. Bryant, 23 Vet. App. at 494

(citing Douglas, 2 Vet. App. at 442). At

the time the Court decided Douglas, the

Board’s Rules of Practice provided that

hearings on appeal could be held: “(a)b]efore a section of the Board of

Veterans’ Appeals in Washington, C;j(jj) * * * before a traveling section of

the Board of Veterans’ Appeals duringregularly scheduled visits to VA]

acilities;l on (c) blefore appropriatepersonnel in the VA] regional or other

office nearest the appellant’s residence,

acting as a hearing agency for the Board

of Veterans’ Appeals.” 38 CFR 19.160

(1991). Under the former rules, if an

appellant chose to have a hearing before

employees of the AOJ acting as a

hearing agency for the Board, then he or

she was not entitled to a subsequenthearing before a Board Member. See Id.;see also Veterans Benefits

Administration, M21—1 AdjudicationProcedures Manual, § 18.17g (1991) (“Aformal hearing on appeal at a regionaloffice will be in lieu of such a hearingbefore the Board], except in the

unusual case in which a specialappearance by the claimant before the

(Boardj, or the special attention of an

accredited organization’s headquartersin Washington, DC, is requested by the

appellant.”).Not long after the Court decided

Douglas, the Board amended its hearingregulations to terminate the practice of

AOJ personnel holding appellatehearings on the Board’s behalf. The final

rulemaking noted that the Board was

implementing these changes because it

had decided “a clear demarcation

should exist between the conduct of

hearings by the Board and hearingsconducted by Veterans Benefits

Administration] employees at regionaloffices.” 58 FR 27934, 27934 (May 12,

1993). As a result of this proceduralmodification, an appellant now has the

opportunity to appear for a hearing with

the AOJ at any time prior to when his

or her appeal is certified to the Board.

38 CFR 3.103(a); Your Rights to AppealOur Decision, VA Form 4107 (Sept.2009). The appellant also has a right to

appear at a separate hearing on appealbefore a Board Member. 38 CFR

20. 700(a); see VA Form 4107 (statingthat a hearing before the AOJ is separatefrom any hearing an appellant may later

request before the Board); see also

Gambill v. Shinseki, 576 F.3d 1307,

1315, 1316 (Fed. Cir. 2009) (Bryson, J.,concurring) (explaining that an

appellant has a right to appear at

hearings before the AOJ and the Board).The 1993 regulatory changes reflected

VA’s intent to clearly distinguishhearings before AOJs from hearingsbefore the Board, including the duties of

the respective VA personnel conductingthe hearing. As a result of these changes,it has become standard VA practice and

procedure that hearings before AOJs are

governed by § 3.10 3 and hearings before

the Board are governed by relevant

provisions in part 20. The Court’s

holding in Bryant brought to light that

the pertinent regulations do not clearlyreflect VA’s intent. Therefore, VA has

decided to make clarifying changes to

§~ 3.103 and 20.706 to ensure that the

distinction between the duties of AOJhearing officers and Board Members

(also known as Veterans Law Judges(VLJs), see § 19.2(b)) is clear on the face

of the pertinent regulations and will not

result in further confusion.

In part 3, VA is revising § 3.103(a) to

clarify that the provisions governinghearings in § 3.103 only apply to

hearings conducted before the AOJ and

that the provisions in part 20 governhearings before the Board. VA is also

removing the following language from

§ 3.103(c)(1): “subject to the limitations

described in § 20.1304 of this chapterwith respect to hearings in claims which

have been certified to the Board of

Veterans Appeals for appellate review.”

This language is not necessary since the

revision tO paragraph (a) clarifies that

§ 3.103 does not apply to Board

hearings. VA is also revising paragraph(c)(1) to change references to “originaldeterminative.authonity” to “VA office

having original jurisdiction”. This

language is consistent with other

portions of § 3.103(c)(1).In part 20, VA is amending § 20.706

to state that the conduct of hearings bypresiding Board Members or VLJs is

governed by subpart H of part 20 and

that Board Members are not bound bythe hearing provisions of § 3.103(c). In

Appendix A, VA is removing two cross

references to § 3.103 listed for §~ 20.1

and 20.1304 to ensure they do not cause

any confusion regarding the correct

applicability of § 3.103.

Administrative Procedure Act

This document merely clarifies

current procedures for obtaining andconducting a hearing on a claim for VAbenefits before the VA agency of originaljurisdiction or the Board. It does not

create new procedure, and no

substantive change is intended.

Accordingly, this document is beingpublished as a final rule pursuant to 5

U.S.C. 553(b)(A), which exceptsprocedural roles from the APA’s notice-

and-comment and delayed effective date

requirements.

Paperwork Reduction Act

This document contains no provisionsconstituting a collection of information

under the Paperwork Reduction Act (44U.S.C. 3501—3521).

APP-2

52574 Federal Register/Vol. 76, No. 163/Tuesday, August 23, 2011/Rules and Regulations

Regulatory Flexibility Act

The initial and final regulatoryflexibility analysis requirements of

sections 603 and 604 of the RegulatoryFlexibility Act, 5 U.s.c. 601—612, are

not applicable to this rule because a

notice of proposed rulemaking is not

required for this rule. Even so, the

Secretary of Veterans Affairs herebycertifies that this final rule will not have

a significant economic impact on a

substantial number of small entities as

they are defined in the RegulatoryFlexibility Act, 5 U.S.C. 601—612. This

rule will affect only individual VA

beneficiaries and will not directly affect

small entities. Therefore, pursuant to 5

U.S.C. 605(b), this final rule is exemptfrom the initial and final regulatoryflexibility analysis requirements of

sections 603 and 604.

Executive Order 12866—RegulatoryPlanning and Review

Executive Order 12866 directs

agencies to assess all costs and benefits

of available regulatory alternatives and,when regulation is necessary, to ‘select

regulatory approaches that maximize

net benefits (including potentialeconomic, environmental, public health

and safety, and other advantages;distributive impacts; and equity). TheExecutive Order classifies a “significantregulatory action,” requiring review bythe Office of Management and Budget(0MB) unless 0MB waives such review,as any regulatory action that is likely to

result in a rule that may: (1) Have an

annual effect on the economy of $100million or more, or adversely affect in

a material way the economy, a sector of

the economy, productivity, competition,jobs, the environment, public health or

safety, or State, local, or tribal

governments or communities; (2) create

a serious inconsistency or otherwise

interfere with an action planned or

taken by another agency; (3) materiallyalter 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 legalmandates, the President’s priorities, or

the principles set forth in the Executive

Order.

VA has examined the economic,

interagency, legal, and policyimplications of this rulemaking and has

concluded that it is not a significantregulatory action under the Executive

Order.

Unfunded Mandates

The Unfunded Mandates Reform Act

of 1995 requires, at 2 U.S.C. 1532, that

agencies prepare an assessment of

anticipated costs and benefits before

issuing any rule that may result in an

expenditure by State, local, and tribal

governments, in the aggregate, or by the

private sector of $100 million or more

(adjusted annually for inflation) in any

given year. This rule would have no

such effect on State, local,.and tribal

governments, or on the private sector.

Catalog of Federal Domestic Assistance

Numbers and Titles

The Catalog of Federal Domestic

Assistance program numbers and titles

for this rule are 64.100, Automobiles

and Adaptive Equipment for Certain

Disabled Veterans and Members of the

Armed Forces; 64.101, Burial ExpensesAllowance 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 SurvivingSpouses, and Children; 64.106,

Specially Adapted Housing for Disabled

Veterans; 64.109, Veterans

Compensation for Service-Connected

Disability; 64.110, Veterans Dependencyand 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 HomeLoans; 64.120, Post-Vietnam Era

Veterans’ Educational Assistance;

64.124, All-Volunteer Force Educational

Assistance; 64.12 5, Vocational and

Educational Counseling for

Servicemembers and Veterans; 64.126,Native American Veteran Direct Loan

Program; 64.127, Monthly Allowance

for Children of Vietnam Veterans Born

with Spina Bifida; and 64.128,Vocational Training and Rehabilitation

for Vietnam Veterans’ Children with

Spina Bifida or Other Covered Birth

Defects.

Signing Authority

The Secretary of Veterans Affairs, or

designee, approved this document and

authorized the undersigned to sign andsubmit the document to the Office of the

Federal Register for publicationelectronically as an official document of

the Department of Veterans Affairs. JohnR. Gingrich, Chief of Staff, Departmentof Veterans Affairs, approved this

document on August 16, 2011, for

publication.

List of Subjects

38 CFR Part 3

Administrative practice and

procedure, Claims, Disability benefits,Health care, Pensions, Radioactive

materials, Veterans, Vietnam.

38 CFR Part 20

Administrative practice and

procedure, Claims, Veterans.

Dated: August 18, 2011.

Robert C. McFetridgo,DirectorofRegulation Policy andManagement, Office of the General Counsel,Department of Veterans Affairs.

For the reasons set forth in the

preamble, VA amends 38 CFR parts 3

and 20 as follows:

PART 3—ADJUDICATION

Subpart A—Pension, Compensation,and Dependency and IndemnityCompensation

• 1. The authority citation for part 3,

subpart A continues to read as follows:

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

otherwise noted.

• 2. Amend § 3.103 by:• a. Revising the last sentence of

paragraph (a) and adding a new

sentence after the last sentence.

• b. Revising paragraph (c)(1).The revisions read as follows:

§ 3.103 Procedural due process and

appellate rights.

(a) * * * The provisions of this

section apply to all claims for benefits

and relief, and decisions thereon, within

the purview of this part 3, except that

the provisions of this section governinghearings apply only to hearingsconducted before the VA office havingoriginal jurisdiction over the claim.

Hearings before the Board of Veterans’

Appeals are governed by part 20 of this

chapt:r.~ * *

(c) * * * (1) Upon request, a claimant

is entitled to a hearing at any time on

any issue involved in a claim within the

purview of part 3 of this chapter. VAwill provide the place of hearing in the

VA office having original jurisdictionover the claim or at the VA office

nearest the claimant’s home havingadjudicative functions, or, subject to

available resources and solely at the

option of VA, at any other VA facilityor federal building at which suitable

hearing facilities are available. VA will

provide one or more employees of theVA office having original jurisdictionover the claim to conduct the hearingand to be responsible for establishment

APP-3

Federal Register/Vol. 76, No. 163/Tuesday, August 23, 2011/Rules and Regulations 52575

and preservation of the hearing record.

Hearings in connection with proposedadverse actions and appeals shall be

held before one or more employees of

the VA office having originaljurisdiction over the claim who did not

participate in the proposed action or the

decision being appealed. All expensesincurred by the claimant in connection

with the hearing are the responsibilityof the claimant.

* * * * *

PART 20—BOARD OF VETERANS’

APPEALS: RULES OF PRACTICE

• 3. The authority citation for part 20

continues to read as follows:

Authority: 38 U.s.c. 501(a) and as noted

in specific sections.

Subpart H—Hearings on Appeal

• 4. Revise § 20. 706 to read as follows:

§ 20.706 Rule 706. Functions of the

presiding Member.

The presiding Member is responsiblefor the conduct of the hearing, in

accordance with the provisions of

subpart H of this part, administering the

oath or affirmation, and ruling onquestions of procedure. The presidingMember will assure that the course of

the hearing remains relevant to the

issue, or issues, on appeal and that there

is no cross-examination of the parties or

witnesses. The presiding Member will

take such steps as may be necessary to

maintain good order at hearings and

may terminate a hearing or direct that

the offending party leave the hearing if

an appellant, representative, or witness

persists in disruptive behavior. The

presiding Member is not bound by the

procedures described in § 3.103(c) of

this chapter, as those procedures onlyapply to hearings before the agency of

original jurisdiction.

• 5. Amend APPENDIX A TO PART

20—CROSS-REFERENCES table by:

• a. Removingentries “20.1”;”38CFR

3.103(a)”; and “Statement of policy.”.• b. Revising entry 20.1304 to read as

follows:

APPENDIX A TO PART 20—CROSS-

REFERENCES

IFR Dcc. 2011—21513 FIled 8—22—11; 8:45 aznl

BILUNG CODE 8320-01—P

DEPARTMENT OF VETERANS

AFFAIRS

38CFR Part 63

RUN 2900-AN73

Health Care for Homeless Veterans

Program

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

SUMMARY: This final rule establishes

regulations for contracting with

community-based treatment facilities in

the Health Care for Homeless Veterans

(HCHV) program of the Department of

Veterans Affairs (VA). The HCHV

program assists certain homeless

veterans in obtaining treatment from

non-VA community-based providers.The final rule formalizes VA’s policiesand procedures in connection with this

program and clarifies that veterans with

substance use disorders may qualify for

the program;

DATES: Effective Date: September 22,

2011.

FOR FURTHER INFORMATION CONTACT:

Robert Hallett, Healthcare for Homeless

Veterans Manager, c/o Bedford VA.

Medical Center, 200 Springs Road, Bldg.

12, Bedford, MA 01730; (781) 687—3187

(this is not a toll free number).

SUPPLEMENTARY INFORMATION: The

HCHV program is authorized by 38

U.S.C. 2031, under which VA may

provide outreach as well as “care,

treatment, and rehabilitative services

(directly or by contract in community-based treatment facilities, includinghalfway houses)” to “veterans sufferingfrom serious mental illness, includingveterans who are homeless.” One of

VA’s National priorities is a renewed

effort to end homelessness for veterans.

For this reason, we are establishingregulations that are consistent with the

current administration of this program.The primary mission of the HCHV

program is to use outreach efforts to

contact and engage vqterans who are

homeless and suffering from serious

mental illness or a substance use

disorder. Many of the veterans for

whom the HCHV program is designedhave not previously used VA medical

services or been enrolled in the VA

health care system.

Through the HCHV program, VA

identifies homeless veterans with

serious mental illness and/or substance

use disorder, usually through medical

intervention, and offers community-based care to those whose conditions

are determined, clinically, to be

managed sufficiently that the

individuals can participate in such care.

We have assisted homeless veterans

with substance use disorders throughthis program because, based on our

practical understanding and experience,the vast majority of homeless veterans

have substance use disorders. Treatingsubstance use as a mental disorder is

consistent with the generally accepted“disease model” of alcoholism and drUgaddiction treatment, as well as the

modern use of medical intervention to

treat the condition. We believe that if a

substance use disorder is a contributingcause of honielessness, then that

disorder is serious; therefore, it is

consistent to include such veterans in a

program designed for “veterans

suffering from serious mental illness,

including veterans who are homeless.”

38 U.S.C. 2031(a).

Veterans who are identified and who

choose to participate in this form of care

as part of their treatment plan are then

referred by VA to an appropriate non-

VA community-based provider. In some

cases, VA will continue to activelymedically manage the veteran’s

condition, while in other cases a VA

clinician may determine that a veteran

can be sufficiently managed throughutilization of non-medical resources,

such as 12-step programs.

To provide the community-basedcare, the HCHV program contracts with

non-VA community-based providers,such as halfway houses, to provide to

these veterans housing and mental

health and/or substance use disorder

. Title of cross-

Sec. Cross-reference referenced material

or comment

20.1304 38 CFR 20.700—20.717 See also rehearings.

APP-4

APP-5

APP-6