2011-7191

IN THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

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NATIONAL ORGANIZATION OF VETERANS ADVOCATES, INC., Petitioner, v. SECRETARY OF VETERANS AFFAIRS, Respondent.
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On Petition for Review Pursuant to 38 U.S.C. 502.

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

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. B. C. Overview Of The Veterans Disability Claims System .........................8 The Longstanding Application Of 3.103 To Board Hearings..........13 The New Rule Depriving Veterans Of 3.103 Rights .......................25

SUMMARY OF ARGUMENT ...............................................................................28 ARGUMENT ...........................................................................................................30 I. THE VAS NEW RULE WAS NOT SUBJECTED TO NOTICE AND COMMENT AND IS INVALID UNDER THE APA ........................30 A. B. Substantive Rules Must Satisfy The APAs Notice-AndComment Requirements ......................................................................31 The VAs New Rule Is Substantive ....................................................33 1. 2. II. Purple Heart Establishes That Rules Curtailing 3.103s Due Process Rights Are Substantive ........................................33 The New Rule Changes Existing Law And Policy And Deprives Veterans Of Individual Rights...................................36

THE VAS NEW RULE IS ARBITRARY, CAPRICIOUS, AND INVALID UNDER THE APA ......................................................................44 A. B. The APA Requires Reasoned Decisionmaking...................................44 The VA Distorted 3.103s History, Ignored The New Rules Reversal Of Policy, And Disregarded Its Impact On Veterans ..........46

CONCLUSION........................................................................................................51 ii

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

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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), affd 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

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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), revd 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 v

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

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Page(s) Prickett v. Nicholson, 20 Vet. App. 370 (2006), affd, 257 F. Appx 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

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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

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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 ix

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

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

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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) (20087076), 2008 U.S. Fed. Cir. Briefs LEXIS 559 ..............................................34 Brief of Appellee, Bryant v. Shinseki, 23 Vet. App. 488 (2010) (No. 084080) ..............................................................................................................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. 997191), 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. Appx 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

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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 Cant Be Fixed, The American Legion, Mar. 22, 2010, available at http://www.legion.org/veteransbenefits/9488/va-broken-claimssystem-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

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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 VAs 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.

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 Nations 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 announcedand immediately put into effecta 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 VAs new rule must be set aside for failure to comply with the notice-and-comment requirements of the Administrative Procedure Act (APA). Whether the VAs new rule must be set aside because it is arbitrary and capricious under the APA.

2.

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 Lincolns words flank the entrance to the Department of Veterans Affairs (VA), the agency that administers our Nations complex system of veterans disability benefits. By helping disabled veterans obtain the assistance they have earned, the VA upholds our Nations 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 claimants position. Id. 3.103(c)(2). The provision also establishes the VAs basic obligation in all

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 veterans 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 governments 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 3.103s 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

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 courts 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, 3.103s 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

veterans of their regulatory due process rights, interferes with their ability to obtain hard-earned benefits, and erodes the VAs established policy of helping them bring claims. Despite these effects, the VA nowhere explained how the rule could qualify as a procedural rulethe 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 Courts 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 APAs procedural requirements before eliminating its due process protections. 580 F.3d 1293 (Fed. Cir. 2009). The VAs substantive justification of the new rule was equally flawed. The VA never mentionedand apparently failed to consider 3.103s 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 VAs 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 VAs 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.

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 duefiled 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 VAs explanation of the rule was arbitrary and capricious under 5 U.S.C. 706(2)(A).1 NOVAs 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 VAs 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 procedureswith their problems, not ours. U.S. Dept 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 VAs obligation to seek a just resolution of each claim brought by each veteran. It conveys the NOVA explained that it has standing to bring this case because the group and its members are adversely affected by the VAs 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 NOVAs standing to challenge VA rules affecting claims for veterans benefits). 7
1

sanctity of [the VAs] mission of fulfilling a grateful nations 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 ROs 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

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 veterans claim. 7104(c); 38 C.F.R. 19.5. The overwhelming majority of veteransover ninety percentparticipate in Board hearings without attorneys. Chairman: Fiscal Year Board of Veterans Appeals, Report of the at 23 (2011), available at 38 U.S.C.

2010,

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 veterans 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.

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. Natl Assn 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 VAs obligation to assist claimantsduring all VA hearingsby 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

10

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

3.103s text, purpose, and history that are especially relevant to this case. The disability claims system is supposed to work to the veterans 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), revd 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 navigateespecially 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

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. 11

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 veterans claimand 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 cant be fixed. Craig Roberts, VA: Broken Claims System Cant 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 Boards 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 VAs 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 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. 12
3

Court, the VA takes a positionopposing a veterans claim for reliefthat 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 VAs new rule reverses decades of practice in which 3.103s 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,

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 Governments litigating position is substantially justified under applicable legal principles. 28 U.S.C. 2412(d); see also Pierce v. Underwood, 487 U.S. 552, 56566 & n.2 (1988) (Governments position is substantially unjustified if it is incapable of satisfy[ing] a reasonable person). 13

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 processprocedural 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 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). 14
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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 Boards 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 timealso clearly encompassed hearings before the Board. Indeed, as early as 1975, the VAs internal guidance manual expressly applied 3.103s due process protections to hearings on appeal.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). 15

2. The 1983 Amendment To The Boards 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 Boards 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 3.103s Due processprocedural and appellate rights. 1983 Rule, 48 Fed. Reg. at 6971. As the VA was well aware and as the Veterans Court itself later notedthis cross-reference confirmed that 3.103s 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), affd in part and vacated in part, 2 Vet. App. 435 (1992). Meanwhile, the VAs administrative manual continued to recognize that 3.103s 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 3.103s 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

16

Appeals, 55 Fed. Reg. 20,144 (May 15, 1990) (1990 Rule). Once again, this change was promulgated in accordance with the APAs 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 3.103s rights to 19.174, the VA again revealed its awareness that 3.103 applied to such hearings.7 4. The Veterans Courts 1992 Douglas Decision. The Veterans Court first addressed 3.103s application to Board hearings in 1992, in the landmark case of Douglas v. Derwinski. A three-judge panel explicitly confirmed that 3.103s due 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.
7

17

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 panels decision and rejected the VAs argument that 3.103 applies only to hearings conducted by the VAs regional offices. Douglas, 2 Vet. App. at 440-42. The court relied on both the text of the regulations and the VAs own administrative manual. Id. The Veterans Courts decision in Douglas definitively established that veterans participating in Board hearings were protected by 3.103s 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 hearingsand the rights of countless veteran claimantsfor decades to come. 5. The 1992 And 1993 Regulatory Amendments. While the Veterans Court was considering Douglasand over the year or so that followedthe 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 3.103s 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 20from 38 C.F.R. 20.1304 to 3.103(c). 1992 Rule, 57 Fed. Reg. at 4130. In the Boards 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 3.103s 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 VAs understanding that the rights

protected by 3.103 applied to hearings before the Board.

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Soon thereafter, in May 1993, the VA amended 38 C.F.R. 20.705an 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 VAs 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 Boards Rules of Practice, changed the VAs 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 VAs contemporaneous intent and understanding that 3.103s protections would apply to hearings before the Board, subject to the limitations then set forth in the Boards 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.

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6. The VAs And Veterans Courts Consistent Adherence To Douglas Over Two Decades. The Veterans Courts 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 3.103s application to Board hearings in numerous briefs filed with this Court and the Veterans Court.8 Its internal adjudication manual recognized that 3.103s due process rights applied to all VA hearingsincluding those before the Board.9 The VA also

See, e.g., Brief of Respondent-Appellee at 23-25, Duncan v. Shinseki, 333 F. Appx 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. 083940) (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). 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 21
9

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 3.103s 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). 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). 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 Douglass holding that 3.103(c)(2) applies to Board hearings); BVA Docket No. 02-12 908A (Apr. 28, 2004) (acknowledging veterans 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 Boards 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. 22
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The court endorsed Douglass 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 VAs 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 Courts 3.103 cases were often shocking. In most instances, they involved veteran claimantssometimes elderly, often suffering from mental or physical impairments, almost always appearing without counselstruggling 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.

See, e.g., Bryant v. Shinseki, 23 Vet. App. 488, 491 n.1 (2010); Prickett v. Nicholson, 20 Vet. App. 370, 382 (2006), affd, 257 F. Appx 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. 991731, 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). 23

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In such cases, the Veterans Courts rigorous enforcement of 3.103s 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 veteranand vacated the Boards decisiondue to the Boards violation of 3.103(c)(2): In Owens v. Shinseki, the Veterans Court vacated the Boards 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 confusionalong with her pleas for clarificationwith 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.

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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 casesand others like themestablish the important role that 3.103s 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, 3.103s 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 3.103s 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:

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. 25

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 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 APAs notice-andcomment 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 VAs disability benefits system and that it does not create new procedure. Id. On the contrary, the VA maintained, its new rule 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 3.103s application to Board hearings. 26
14

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 Courts 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 veterans Board hearing. See Bryant, 23 Vet. App. at 494. The VAs

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 earlierby 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 VAs intent to deny

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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 VAs new rule is invalid under the APAand this Court should therefore set it asidefor two independent reasons. First, the VA promulgated the rule without following the mandatory noticeand-comment requirements set forth in 5 U.S.C. 553. These requirements apply to all substantive rulesthat is, to all rules that effect a change in existing law or policy or affect individual rights and obligations. Coalition for Common Sense in Govt Procurement v. Secy of Veterans Affairs, 464 F.3d 1306, 1317 (Fed. Cir. 2006) (internal quotation marks omitted). In Military Order of the Purple Heart v. Secy of Veterans Affairs, this Court determined that VA rules abrogating 3.103s 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-andcomment under the APA. Even apart from this Courts binding decision in Purple Heart, the VAs new rule independently qualifies as a substantive rule for several reasons. The

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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 VAs 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 VAs 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 ROand not to Board hearingsas 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 Courts 1992 decision in Douglas. The VAs 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. Assn 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).

29

In short, the VAs new rule is both procedurally and substantively invalid under the APA. This Court should set it aside. ARGUMENT I. THE VAS NEW RULE WAS NOT SUBJECTED TO NOTICE AND COMMENT AND IS INVALID UNDER THE APA Whether the VAs 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 VAs failure to comply with 553s notice-and-comment procedures was unlawfuland this Court must vacate the rule. See 5 U.S.C. 706(2)(D). The VAs 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 VAs 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 VAs new rule and make clearyet againthat the VA must comply with the APA when promulgating substantive regulations.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). 30

15

A.

Substantive Rules Must Satisfy The APAs 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 APAs 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-andcomment requirements for matters relating to benefits, but Congress has overridden that exception for VA rules, see 38 U.S.C. 501(d). 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, 31
17

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 553s 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 agencys construction of the statutes and rules which it administers. Shalala v. Guernsey Meml 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 APAs 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 Nations 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). 32

VA rules to comply with 553, despite otherwise applicable exemption for rules relating to benefits). B. The VAs New Rule Is Substantive

The new rule is a substantive rule subject to the APAs notice-and-comment requirements. This conclusion follows both from this Courts 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 APAs mandatory procedures, this Court should vacate the rule. See 5 U.S.C. 706(2)(D). 1. Purple Heart Establishes That Rules Curtailing 3.103s Due Process Rights Are Substantive

In Purple Heart, this Court made clear that rules depriving veterans of 3.103s due process rights are substantive rules subject to the APAs procedural requirements. 580 F.3d at 1296-98. The VA rule at issue here eliminates 3.103s protections in hearings before the Board. It is therefore a substantive rule. Purple Heart involved an internal VA directive thatlike the VA rule now under reviewdeprived 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 VAs Compensation & Pension Service (C&P). Id. The C&P would review the award and decideindependently of the

33

ROwhether 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 VAs directive as procedurally improper for failure to comply with the APAs 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 arguedas it does in this casethat the VA directive was not a substantive rule, but rather a mere procedural rule exempt from the APAs 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 veterans substantive as well as procedural rights, and it concluded that the directive therefore satisfied the Courts definition of a substantive rule one that constitutes a change in existing law or policy which affects individual

34

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 APAs 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 See also Brief of Respondent at 31-32, Preminger v. Secy 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). 35
18

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 VAs policy of helping veterans prove their claims throughout the adjudicatory process. Moreover, it does so in a way that affects the rights of veteransincluding 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 VAs new rule changes existing law. It amendsand in fact repudiatesvarious VA regulatory provisions that had previously made 3.103s 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 3.103s 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 Boards 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 Boards Rules of Practice to 3.103 and its due process protections. 36

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 Nowafter the new rule 3.103s 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 VAs new rule to reject veterans claim that Board violated 3.103). The VAs 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

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 APAs 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 agencys 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 3.103s 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). 37

20

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 [veterans] 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 APAs notice-andcomment procedures. 580 F.3d at 1296-98. And in other cases it has frequently recognized that rules establishing (or eliminating) procedural safeguards for

38

individuals are substantive rules for APA purposes.22 Because the VAs 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 practiceexempt 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 rightsexpressly identified as such by the agencythat they may enforce against the agency in federal court, see, e.g., Coalition for Common Sense, 464 F.3d at 1317.23

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). Even if the VAs new rule were procedural, it would still be subject to the APA notice-and-comment procedures because it substantially changesand thus is inconsistent withthe prior version of the VAs 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 [agencys] 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 Natl Bank of Chicago v. Standard Bank & Trust, 172 39
23

22

Third, the VAs 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 3.103s 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 veterans 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 3.103s application to Board hearings will harm veterans substantive rights. The whole purpose of 3.103s due process rights is to help veterans obtain the benefits they are entitled to receive under the law. Unless these rights are entirely superfluousa claim the VA has never madeit 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 3.103s 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)). 40

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 VAs adjudicatory process is also notoriously error-prone. The fact that 70 percent of RO decisions appealed to the Boardand 80 percent of Board decisions appealed to the Veterans Courtare 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 positionsagainst veteransthat 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 VAs new rule, the Veterans Court required the Board to reconsider a veterans

41

claimdue to a violation of the veterans 3.103(c)(2) rightsno 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 VAs 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 VAs longstanding policy of providing affirmative assistance to veterans at every stage in the adjudicatory processincluding before the Board. 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. 094013, 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). 42
24

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 Assn of Radiation Survivors, 473 U.S. 305, 311 (1985). Most importantly, the VA has been required to fully and

sympathetically develop the veterans claim to its optimum before deciding it on the merits. Comer, 552 F.3d at 1368. This approach has served the [t]he governments 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 claimants

43

position. 38 C.F.R. 3.103(a), (c)(2). But these protections no longer exist. The VAs new rule eliminates 3.103s application to Board hearings. It thereby eviscerates the VAs longstanding policy of assisting veterans on appeal. The bottom line is that the VAs 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 Courts other 553 decisions. The VA erred by failing to promulgate the rule in accordance with the APAs procedural requirements. This Court should now set it aside. II. THE VAS NEW RULE IS ARBITRARY, CAPRICIOUS, AND INVALID UNDER THE APA In addition to its procedural flaws, the VAs new rule is also arbitrary and capricious. The VAs 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)

44

(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 agencys 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 agencys expertise, courts retain a role, and an important one, in ensuring that agencies have engaged in

45

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 3.103s History, Ignored The New Rules 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 VAs explanation does not withstand scrutiny, and this Court should set the rule aside under 706(2)(A). The VAs explanation for its new rule assertedwithout any evidence in the recordthat the rule merely clarifies current procedures and conforms the VA regulations to the standard VA practice and procedure that resulted from the VAs amendment of 20.705 in May 1993. 2011 Rule, 76 Fed. Reg. at 52,573. According to the VA, the new rules only purpose is to reflect the VAs longstanding intenttraceable to the May 1993 regulatory changeto 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 Courts 2010 decision in Bryant v. Shinseki brought to light the fact that the regulations did not clearly reflect the VAs intent in this regard. Id. The VAs justification of the rule is deeply flawed, in at least four ways. 46

First, the May 1993 amendment of 20.705 had nothing to do with 3.103s 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 Courts 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 changesincluding to 3.103 itselfthat confirmed 3.103s 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 3.103s application to the Board. The VAs

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 3.103s 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 Courts 1993

decision in Douglas and the promulgation of its new rule in August 2011, the VA

47

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 3.103s rights apply to Board hearings, see supra at 17-18, 21-25; The many Board decisions expressly applying 3.103s due process protections in Board hearings throughout this same period, see supra at 22; The VAs 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 VAs internal administrative manuals, which likewise acknowledged that 3.103s due process rights apply to all hearings (including Board hearings), see supra at 21-22. The VAs assertion that its new rule tracks existing practice is thus completely at odds with the facts. Third, the VAs 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 VAs intent). But in fact there was no surprise: Bryants statement on this issue was entirely consistent with the line of Veterans Court decisions stretching back to Douglas. 48

More to the point, Bryants statement reflected the VAs 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 VAs suggestion that Bryant somehow created or revealed confusion over 3.103s application to Board hearings is thus entirely unpersuasive. Fourth, the VAs asserted policy goalto clearly distinguish hearings before [ROs] from hearings before the Board, 2011 Rule, 76 Fed. Reg. at 52,573is 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

49

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 VAs explanation. The first is that the VAs 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 rulethe VA was completely unaware that the new rule would effect a drastic reversal of the VAs longstanding policy of applying 3.103 to Board hearings. Each of these

conclusions independently renders the rule arbitrary and capricious under the APA.26

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. Dept 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 agencys ruling). 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). 50
26

25

Finallyand apart from the problems noted abovethe 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.

51

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

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

ii

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

iii

5 U.S.C. 553
553 TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES Page 716

553. Rule making (a) This section applies, according to the provisions thereof, except to the extent that there is involved(1) a military or foreign affairs function of the United States; or (2) a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts. (b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include(1) a statement of the time, place, and nature of public rule making proceedings; (2) reference to the legal authority under which the rule is proposed; and (3) either the terms or substance of the proposed rule or a description of the subjects and issues involved. Except when notice or hearing is required by statute, this subsection does not apply(A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or (B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. (c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection. (d) The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except(1) a substantive rule which grants or recognizes an exemption or relieves a restriction; (2) interpretative rules and statements of policy; or (3) as otherwise provided by the agency for good cause found and published with the rule. (e) Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 383.)
HISTORICAL AND REVISION NOTES Deri vation .................. U.S. Code 5 U.S.C. 1003. Revised Statutes and Statutes at Large June 11, 1946, ch. 324, 4, 60 Stat. 238.

In subsection (c), the words "for oral presentation" are substituted for "to present the same orally in any manner". The words "sections 556 and 557 of this title apply instead of this subsection" are substituted for "the requirements of sections 1006 and 1007 of this title shall apply in place of the provisions of this subsection". Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.
CODIFICATION

Section 553 of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2245 of Title 7, Agriculture.
EXECUTIVE ORDER No. 12044

Ex. Ord. No. 12044, Mar. 23, 1978, 43 F.R. 12661, as amended by Ex. Ord. No. 12221, June 27, 1980, 45 F.R. 44249, which related to the improvement of Federal regulations, was revoked by Ex. Ord. No. 12291, Feb. 17, 1981, 46 F.R. 13193, formerly set out as a note under section 601 of this title.

In subsection (a)(1), the words "or naval" are omitted as included in "military". In subsection (b), the word "when" is substituted for "in any situation in which".

ADD-1

5 U.S.C. 706
Page 767 TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES 706

706. Scope of review To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall(1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall 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
5 U.S.C. 1009(e).

Revised Statutes and Statutes at Large

June 11, 1946, ch. 324, 10(e), 60 Stat. 243.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface of this report.
ABBREVIATION OF RECORD

Pub. L. 85-791, Aug. 28, 1958, 72 Stat. 941, which authorized abbreviation of record on review or enforcement of orders of administrative agencies and review on the original papers, provided, in section 35 thereof, that: "This Act [see Tables for classification] shall not be construed to repeal or modify any provision of the Administrative Procedure Act [see Short Title note set out preceding section 551 of this title]."

ADD-2

38 C.F.R. 3.103 (July 1, 1973)

Chapter I-Veterans Administration
3.103

3.103 Due process-procedural and appellate rights with regard to disability and death benefits and related relief. (a) Statement of policy. Proceedings before the Veterans Administration are ex parte in nature. 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. This principle and the other provisions of this section apply to all claims for benefits and relief and decisions thereon within the purview of this part. (b) Submission of evidence. Any evidence whether documentary, testimonial, or in other form, offered by a claimant in support of a claim and any issue he may raise and contention and argument he may offer with respect thereto are to be included in the records. (c) Hearings. Upon request a claimant is entitled to a hearing at any time on any issue involved in a claim within the purview of this part. The Veterans Administration will provide the place of hearing in the Veterans Administration office having original jurisdiction over the

ADD-3

 3.104

Title 38-Pensions, Bonuses, and Veterans' Relief

(See Part 19, Subpart B of this chapter on appeals.)
[37 PR 14780, July 25, 19721

claim or at the Veterans Administration office nearest his home having adjudicative functions and will provide Veterans Administration personnel who have original determinative authority of such issues to be responsible for the preparation of the transcript; however, further expenses involved will be the responsibility of the claimant. The claimant is entitled to produce witnesses and all testimony will be under oath or affirmation. The purpose of such a hearing is to permit the claimant to introduce into the record in person any evidence available to him which he may consider material and any arguments and contentions with respect to the facts and applicable law which he may consider pertinent. 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. It is their further responsibility to establish and preserve the record. Because of this and to assure clarity and understanding therein, questions which are directed to the claimant and to witnesses are to be framed to explore fully the basis for claimed entitlement rather than with an intent to refute evidence and to discredit testimony. In cases in which the nature, origin, or degree of disability is in issue, the claimant may request visual examination by the physician designated by the Veterans Administration as a participant in the hearing and his observations will be read into the record. (d) Representation. Within the provisions and criteria of 14.626 through 14.663 of this chapter a claimant is entitled to representation of his choice at every stage in the prosecution of a claim. (e) Notification of decisions. The claimant will be notified of any decision affecting the payment of benefits or granting relief. Notice will include the reason for the decision and the date it will be effectuated as well as the right to a hearing subject to paragraph (c) of this section. The notification will also advise the claimant of his right to initiate an appeal by filing a Notice of Disagreement which will entitle him to a Statement of the case for his assistance in perfecting his appeal. Further, the notice will advise him of the periods in which an appeal must be initiated and perfected.

ADD-4

38 C.F.R. 3.103 (July 1, 1993)

3.101 38 CFR Ch. I (7-1-93 Edition)

3.103. Procedural due process and appellate rights.. (a) Statement of policy. Every claimfant 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 are ex parte in nature, and it is the obligation 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 supported in law while protecting the interests of the Government. The provisions 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 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 initiate an appeal of the decision. notice. (2) Pretermination/reduction Except as otherwise provided in paragraph (b)(3) of this section, no award

ADD-5

Department of Veterans Affairs

of compensation, pension or dependency and indemnity compensation shall be terminated. reduced or otherwise adversely affected unless the beneficiary has been notified of such adverse 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. Pretermination/reduction notice is not required but notice contemporaneous with the adverse action is required when: (i) An adverse action is based solely on written, factual, unambiguous information as to income, net worth, dependency or marital status provided by the beneficiary or his/her fiduciary with knowledge or notice that such information would be used to calculate benefits, and the legal standards applied to this information are numerical in nature. (ii) An adverse action is based upon the beneficiary's or fiduciary's failure to return a required eligibility verification report, or (iii) Evidence reasonably indicates that a beneficiary is deceased. However, in the event that VA has received a death certificate, a terminal hospital report verifying the death of a beneficiary or a claim for VA burial benefits, no notice of termination (contemporaneous or otherwise) will be required. (c) The right to a hearing. (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, 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. 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 personnel 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 con-

3.103
nection with proposed adverse actions and appeals shall be held before VA personnel having original determinative authority 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 claimant is entitled to produce witnesses and all testimony will be under oath or affirmation. The purpose of a hearing is to permit the claimant to introduce into the record in person any available evidence which the claimant may consider material and any arguments and contentions with respect to the facts and applicable law which the claimant may consider pertinent. It is the responsibility of the VA personnel conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position. To assure clarity and completeness of the hearing record, questions which are directed to the claimant and to witnesses are to be framed to explore fully the basis for claimed entitlement rather than with an intent to refute evidence or to discredit testimony. 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 included in the records. (e) The right to representation.Subject to the provisions of 14.626 through 14.637 of this title, claimants are entitled to representation of their choice at every stage in the prosecution of a claim. (f) Notification of decisions. The claimant or beneficiary and his or her representative will be notified in writing of decisions affecting the payment

197

ADD-6

 3.104
of benefits or granting relief. Notice will include the reason for the decision and the date it will be effective as well as the right to a hearing subject to paragraph (c) of this section. The notification will also advise the claimant or beneficiary of 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. Further, the notice will advise him or her of the periods in which an appeal must be initiated and perfected. (See part 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; 57 FR 56993. Dec. 2, 1992; 58 FR 16360. Mar. 26, 1993]

38 CFR Ch. 1 (7-1-93 Edition)

198

ADD-7

38 C.F.R. 3.103 (July 1, 2011)

Department of Veterans Affairs

3.103

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 representation. Proceedings before VA

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 3.103
are ex parte in nature, and it is the obligation 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 supported in law while protecting the interests of the Government. The provisions 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 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 initiate 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, pension or dependency and indemnity compensation shall be terminated, reduced or otherwise adversely affected unless the beneficiary has been notified of such adverse 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 notice and opportunity 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 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 beneficiarys or fiduciarys failure to return a required eligibility verification report.

38 CFR Ch. I (7111 Edition)

(iii) Evidence reasonably indicates that a beneficiary is deceased. However, in the event that VA has received a death certificate, a terminal hospital report verifying the death of a beneficiary or a claim for VA burial benefits, no notice of termination (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 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 notice that receipt of active service pay precludes concurrent receipt 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).
(Authority: 38 U.S.C. 501(a))

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(4) Restoration of benefits. VA will restore retroactively benefits that were reduced, terminated, or otherwise adversely affected based on oral information or statements if within 30 days of the date on which VA issues the notification of adverse action the beneficiary 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 preclude VA from taking subsequent action that adversely affects benefits. (c) The right to a hearing. (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, 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. VA will provide the place of hearing in the VA office having original jurisdiction over the claim or at the VA office nearest the claimants home having adjudicative functions, or, subject to available resources and solely at the

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Department of Veterans Affairs

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 authority 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 entitled to produce witnesses, but the claimant and witnesses are expected to be present. The Veterans Benefits Administration will not normally schedule a hearing for the sole purpose of receiving argument from a representative. 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 overlooked and which would be of advantage to the claimants position. To assure clarity and completeness of the hearing record, questions which are directed to the claimant and to witnesses are to be framed to explore fully the basis for claimed entitlement rather than with an intent to refute evidence or to discredit testimony. 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 physicians observations will be read into the record.
(Authority: 38 U.S.C. 501)
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3.104
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 entitled to representation of their choice at every stage in the prosecution of a claim. (f) Notification of decisions. The claimant or beneficiary and his or her representative will be notified in writing of decisions affecting the payment of benefits or granting 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 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 include a summary of the evidence considered.
(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]

(d) Submission of evidence. Any evidence whether documentary, testimonial, or in other form, offered by the claimant in support of a claim and any

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38 C.F.R. 3.103 (Post-August 23, 2011)

38 C.F.R. 3.103 Page 1

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 representation. Proceedings before VA are ex parte in nature, and it is the obligation 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 supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3, except that the provisions of this section governing hearings apply only to hearings conducted before the VA office having original jurisdiction over the claim. Hearings before the Board of Veterans' Appeals are governed by part 20 of this chapter. (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 initiate 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, pension or dependency and indemnity compensation shall be terminated, reduced or otherwise adversely affected unless the beneficiary has been notified of such adverse 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 notice and opportunity 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 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. However, in the event that VA has received a death certificate, a terminal hospital report verifying the death of a beneficiary or a claim for VA burial benefits, no notice of termination (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 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 notice that receipt

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38 C.F.R. 3.103

Page 2

of active service pay precludes concurrent receipt 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 retroactively benefits that were reduced, terminated, or otherwise adversely affected based on oral information or statements if within 30 days of the date on which VA issues the notification of adverse action the beneficiary 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 preclude VA from taking subsequent action that adversely affects benefits. (Authority: 38 U.S.C. 501(a)) (c) The right to a hearing.

respect to the facts and applicable law which he or she may consider pertinent. All testimony will be under oath or affirmation. The claimant is entitled to produce witnesses, but the claimant and witnesses are expected to be present. The Veterans Benefits Administration will not normally schedule a hearing for the sole purpose of receiving argument from a representative. It is the responsibility of the employee or employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position. To assure clarity and completeness of the hearing record, questions which are directed to the claimant and to witnesses are to be framed to explore fully the basis for claimed entitlement rather than with an intent to refute evidence or to discredit testimony. 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)

(1) Upon request, a claimant is entitled to a hearing at any time on any issue involved in a claim within the purview of part 3 of this chapter. VA will provide the place of hearing in the VA office having original jurisdiction over the claim or at the VA office nearest the claimant's home having adjudicative functions, or, subject to available resources and solely at the option of VA, at any other VA facility or federal building at which suitable hearing facilities are available. VA will provide one or more employees of the VA office having original jurisdiction over the claim to conduct the hearing and to be responsible for establishment and preservation of the hearing record. Hearings in connection with proposed adverse actions and appeals shall be held before one or more employees of the VA office having original jurisdiction over the claim who did not participate in the proposed action or the decision being appealed. All expenses incurred by the claimant in connection with the hearing are the responsibility of the claimant. (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

(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 included in the records. (e) The right to representation. Subject to the provisions of 14.626 through 14.637 of this title, claimants are entitled to representation of their choice at every stage in the prosecution of a claim. (f) Notification of decisions. The claimant or beneficiary and his or her representative will be notified in writing of decisions affecting the payment of benefits or granting 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 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

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38 C.F.R. 3.103

Page 3

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

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ADD-13

38 C.F.R. 19.101 (July 1, 1983)

Chapter I-Veterans Administration 19.106

Subpart B-Appeals-Rules of Practice

GENERAL

19.101 Rule 1; Authority, scope of rules, and construction. (a) Authority. Pursuant to the authority vested in the Administrator of Veterans Affairs (38 U.S.C. 210(c)(1)) there are hereby issued revised Rules of Practice which govern proceedings in appeals to the Board of Veterans Appeals. (b) Scope. These rules govern the practices and procedures for processing appeals for the Board of Veterans Appeals. Where in any instance there is no applicable rule or procedure, the presiding Board member before whom the matter is pending may prescribe a procedure which is consistent with the provisions of title 38, United States Code, and these rules. (38 U.S.C. 4002) (c) Construction. In accordance with the agency's policy of providing assistance to the appellant, these rules shall be construed to secure a just and speedy decision in every appeal. (38 U.S.C. 210) CRoss-REYEmwcEs: Reasonable doubt. See 3.102. Due process-procedural and appellate rights with regard to disability and death benefits and related relief. See 3.103.

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38 C.F.R. 19.174 (July 1, 1990)

19.174 36 CFR Ch. 1 (7-1-90 Edition) which the appellant may request a change in representation. Any such request or. additional evidence should be submitted directly to the Board and not to the agency of original jurisdiction. The date of the letter of notification will be presumed to be the date of mailing for purposes of determining whether the request was timely made or the evidence timely submitted. Any evidence which is submitted at a hearing on appeal which was requested during such period will be considered to have been received during such period, even though the hearing may be held following the expiration of the period..-Any pertinent evidence submitted by the appellant or representative is subject to the requirements of paragraph (d) of this section and, if a simultaneously contested claim is involved, the requirements of paragraph (e) this section. of (c) Subsequent request for a change in representation,request for a personal hearing, or submission of addition,.al evidence. Following the expiration of the period described in paragraph (b).of this section, the Board of Veterans Appeals will- not. accept a request for a-change ,inrepresentation, a re-quest for a personal hearing, or addi.tional evidence except when the appellant demonstrates on motion that there was good cause for the delay. Examples of good cause include, but are not limited to, illness of the appellant or the representative which precluded action during the period; death of an individual representative; illness or incapacity of an individual representative which renders it impractical -for an appellant.to continue with him or her. as representative; withdrawal of an individual 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 writing and must include the name of the veteran; the name of the claimant or appellant if other than the veteran (e.g., a veteran's survivor or guardian); the applicable Department of Veterans Affairs file number; and an explanation of why the request for a change In representation, the re-

19.174 Rule 74. 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) Notification. When an appeal is certified to the Board of Veterans Appeals for :appellate review and the appellate record is transferred to the Board, the appellant and his or her representative, if any, will be notified in- writing of the certification and :,transfer. and of- the .time limit for requesting a change-in representation, for requesting a personalhearing, and for submitting additional evidence described in this section. (b) Request for a change in representation, request for a personal hearing, .or submission of additional evidence within 90 days following notification of certificationand transferof records. An appellant and his or her representative. if any, will be granted a period 'of 90 days following the mailing to them of the notice describedsin_-paragraph (a). or until the date the appellate decision is promulgated by the - Board of Veterans Appeals, whichever -comes first, during which they may submit a request for a personal hearing or additional evidence, and during

ADD-15

Department of Veterans Affairs quest for a personal hearing, or the submission of additional evidence could not be accomplished in a timely manner. Such motions should be filed at the following address: Office of the Chairman, Special Legal Assistant (OIC), Board of Veterans Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. The ruling on the motion will be by the Chairman. Depending upon the ruling on the motion, action will be taken as follows: (1) Good cause not shown. If good cause is not shown, the request for a change in representation, the request for a personal hearing, or the additional evidence submitted will be referred to the agency of original jurisdiction upon completion of the Board's action on the pending appeal without action by the Board concerning the request or additional evidence. Any personal 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 denied a benefit sought in the pending appeal and any evidence so referred which was received prior to the date of the Board's decision, or testimony presented 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 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. (2) 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 representative will be accepted, subject to the requirements of paragraph (d) of this section and, if a simultaneously contested claim is involved, the requirements of paragraph (e) of this section. (d) Consideration of additional evidence by agency of original jurisdiction. Any pertinent evidence submitted by the appellant or representative which is accepted by the Board under

19.175
the provisions of this section, as well as any referred to the Board by the originating agency under Rule 73(b) ( 19.173(b) of this part), must be referred to the agency Of original jurisdiction for review and preparation of a Supplemental Statement of the Case unless this procedural right is waived by the appellant or unless the Board determines that the benefit, or benefits, to which the evidence relates may be allowed on appeal without such referral. Such waiver must be in writing or, if a hearing on appeal is conducted, formally entered on the record orally at the time of the hearing. (e) Simultaneously contested claims. In simultaneously contested claims, if pertinent evidence 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. The date of the letter of notification of the new evidence will be presumed to be the date of mailing for purposes of determining whether such comment or evidence in rebuttal was timely submitted. No further period will be provided for response to such comment or rebuttal evidence. (Authority: 38 U.S.C. 4004, 4005, 4005A) [55 FR 20149. May 15, 1990] CRoss-REVERENcxs: For further information concerning: Hearings, see 3.103 and Rules 57 through 71 (M 19.157-19,171); New and Material Evidence, see 3.156(a): Reopened 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).

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38 C.F.R. 20.1 (July 1, 1993)

20.1 38 CFR Ch. I (7-1-93 Edition)

Subpart A-General
20.1 Rule 1. Purpose and construction of
Rules of Practice.

(a) Purpose. These rules establish the practices and procedures governing appeals to the Board of Veterans' 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)

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38 C.F.R. 20.1 (July 1, 2011)

Department of Veterans Affairs

20.1

Subpart AGeneral
20.1 Rule 1. Purpose and construction of Rules of Practice.
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(a) Purpose. These rules establish the practices and procedures governing appeals to the Board of Veterans Appeals.
(Authority: 38 U.S.C. 501(a), 7102, 7104)

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 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

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 construction of Rules of Practice. (a) Purpose. These rules establish the practices and procedures governing appeals to the Board of Veterans' 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 specific 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

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38 C.F.R. 20.705 (July 1, 1993)

Department of Veterans Affairs 20.707

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) Before a traveling Section of the Board of Veterans' Appeals at Department of Veterans Affairs facilities having adequate physical resources and personnel for the support of such hearings. AuTHory: 38 U.S.C. 7102, .7104(a). 7105(a). 7110) 158 FR 27936. May 12, 1993]

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38 C.F.R. 705 (July 1, 2011)

20.705

38 CFR Ch. I (7111 Edition)

20.705 Rule 705. Where hearings are conducted.

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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:

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Department of Veterans Affairs

(a) In Washington, DC, or (b) At a Department of Veterans Affairs 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]

20.710

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38 C.F.R. 20.705 Page 1

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 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; 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 specific 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

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38 C.F.R. 20.706 (July 1, 2011)

Department of Veterans Affairs

20.710

20.706 Rule 706. Functions of the presiding 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 questions of procedure. The presiding Member will assure that the course of the hearing remains relevant to the issue, or issues, on appeal and that there is no cross-examination of the parties or witnesses. The presiding Member will take such steps as may be necessary to maintain good order at hearings and may terminate a hearing or direct that the offending party leave the hearing if an appellant, representative, or witness persists in disruptive behavior.
(Authority: 38 U.S.C. 7102, 7105(a), 7107)

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38 C.F.R. 20.706

38 C.F.R. 20.706 (Post-August 23, 2011)

Page 1

2011 Thomson Reuters END OF DOCUMENT

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 affirmation, and ruling on questions of procedure. The presiding Member will assure that the course of the hearing remains relevant to the issue, or issues, on appeal and that there is no cross-examination of the parties or witnesses. The presiding Member will take such steps as may be necessary to maintain good order at hearings and may terminate a hearing or direct that the offending party leave the hearing if an appellant, representative, or witness persists in disruptive behavior. The presiding Member is not bound by the procedures described in 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 specific sections. 38 C. F. R. 20.706, 38 CFR 20.706 Current through December 15, 2011; 76 FR 77913.

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ADD-26

38 C.F.R. 20.1304 (July 1, 1993)

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 representation, request for a personal hearing, or submission of additional evidence within 90 days following notification of certificationand transferof 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 appellate review and that the appellate record has been transferred to the Board, or until the date the appellate decision is promulgated by the Board of Veterans' Appeals, whichever comes first, during which they may submit a request for a personal hearing, additional evidence, or a request for a change n 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 letter for purposes of determining whether the request was timely made or the evidence was timely submitted. Any evidence which is submitted at a hearing on appeal which was requested during such period will be considered to have been received during such period, even though the hearing may be held following the expiration of the period. Any pertinent evidence submitted by the appellant or representative is sub-

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 20.1304
ject to the requirements of paragraph (c) of this section and, if a simultaneously contested claim is involved, the requirements of paragraph (d) of this section. (b) Subsequent request for a change in representation,request for a personal hearing, or submission of additional evidence. Following the expiration of the period described in paragraph (a) of this section, the Board of Veterans' Appeals 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 include, but are not limited to, illness of the appellant or the representative which precluded action during the period; death of an individual representative; illness or incapacity of an individual representative which renders it impractical for an appellant to continue with him or her as representative; withdrawal of an individual 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 writing and must include the name of the veteran; the name of the claimant or appellant if other than the veteran (e.g., a veteran's survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual's behalf); the applicable Department of Veterans Affairs file number; and an explanation of why the request for a change in representation, the request for a personal hearing, or the submission of additional evidence could not be accomplished in a timely manner. Such motions must be filed at the following address: Director, Administrative Service (014). Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. The ruling on the motion will be by the Chairman. Depending upon the ruling on the motion, action will be taken as follows: (1) Good cause not shown. If good cause is not shown, the request for a change in representation, the request for a personal hearing, or the additional evidence submitted will be re-

38 CFR Ch. I (7-1-93 Edition) ferred to the agency of original jurisdiction upon completion of the Board's action on the pending appeal without action by the Board concerning the request or additional evidence. Any personal 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 denied a benefit sought in the pending appeal and any evidence so referred which was received prior to the date of the Board's decision, or testimony presented 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 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. (2) 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 representative will be accepted, subject to the requirements of paragraph (c) of this section and, if a simultaneously contested claim is involved, the requirements of paragraph (d) of this section. (c) Consideration of additional evidence by agency of original jurisdiction. Any pertinent evidence submit-

ted by the appellant or representative which is accepted by the Board under the provisions of this section, as well as any such evidence referred to the Board by the originating agency under 19.37(b) of this chapter, must be referred to the agency of original jurisdiction for review and preparation of a Supplemental Statement of the Case unless this procedural right is waived by the appellant or unless the Board determines that the benefit, or benefits, to which the evidence relates may be allowed on appeal without such referral. Such waiver must be in writing or, if a hearing on appeal is conducted, formally entered on the record orally at the time of the hearing.

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Department of Veterans Affairs (d) Simultaneously contested claims. In simultaneously 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 com-

20.1304 ment upon it and/or submit additional evidence in rebuttal. 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 period will be provided for response to such comment or rebuttal evidence.
(Authority: 38 U.S.C. 7104, 7105, 7105A)

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38 C.F.R. 20.1304 (July 1, 2011)

Department of Veterans Affairs

20.1304

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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 representation, request for a personal hearing, or

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submission of additional evidence within 90 days following notification of certification 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 appellate review and that the appellate record has been transferred to the Board, or until the date the appellate decision is promulgated by the Board of Veterans Appeals, whichever comes first, during which they may submit a request for a personal hearing, additional evidence, or a request for a change in representation. Any such request or additional evidence 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 determining whether the request was timely made or the evidence was timely submitted. Any evidence which is submitted at a hearing on appeal which was requested during such period will be considered to have been received during such period, even though the hearing may be held following the expiration of the period. Any pertinent evidence submitted by the appellant or representative is subject to the requirements of paragraph (d) of this section if a simultaneously contested claim is involved. (b) Subsequent request for a change in representation, request for a personal hearing, or submission of additional 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 Appeals 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 include, but are not limited to, illness of the appellant or the representative which precluded action during the period; death of an individual representative; illness or incapacity of an individual representative which renders it impractical for an appellant to continue with him or her as representative; withdrawal of an indi-

38 CFR Ch. I (7111 Edition)

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 writing and must include the name of the veteran; the name of the claimant or appellant if other than the veteran (e.g., a veterans survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individuals behalf); the applicable Department of Veterans Affairs file number; and an explanation of why the request for a change in representation, the request for a personal hearing, or the submission of additional evidence could not be accomplished in a timely manner. Such motions must be filed at the following address: Director, Management and Administration (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 additional evidence submitted will be referred to the agency of original jurisdiction upon completion of the Boards action on the pending appeal without action by the Board concerning the request or additional evidence. Any personal 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 denied a benefit sought in the pending appeal and any evidence so referred which was received prior to the date of the Boards decision, or testimony presented 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 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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Department of Veterans Affairs

(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 representative will be accepted, subject to the requirements of paragraph (d) of this section if a simultaneously contested 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 representative which is accepted by the Board under the provisions of this section, or is submitted by the appellant or representative in response to a 20.903 of this part, notification, as well as any such evidence referred to the Board by the agency of original jurisdiction 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 simultaneously 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 evidence received

20.1400
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 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 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 reasonableness 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 reasonableness.
(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 (Post-August 23, 2011)

38 C.F.R. 20.1304 Page 1

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' Appeals 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 include, but are not limited to, illness of the appellant or the representative which precluded action during the period; death of an individual representative; illness or incapacity of an individual representative which renders it impractical for an appellant to continue with him or her as representative; withdrawal of an individual 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 writing and must include the name of the veteran; the name of the claimant or appellant if other than the veteran (e.g., a veteran's survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual's behalf); the applicable Department of Veterans Affairs file number; and an explanation of why the request for a change in representation, the request for a personal hearing, or the submission of additional evidence could not be accomplished in a timely manner. Such motions must be filed at the following address: Director, Management and Administration (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 additional evidence submitted will be referred to the agency of original jurisdiction upon completion of the Board's action on the pending appeal without action by the Board concerning the request or additional evidence. Any personal hearing granted as a result of a request so referred or any additional evidence so referred may be

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 & Annos) 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 representation, request for a personal hearing, or submission of additional evidence within 90 days following notification of certification 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 appellate review and that the appellate record has been transferred to the Board, or until the date the appellate decision is promulgated by the Board of Veterans' Appeals, whichever comes first, during which they may submit a request for a personal hearing, additional evidence, or a request for a change in representation. Any such request or additional evidence 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 determining whether the request was timely made or the evidence was timely submitted. Any evidence which is submitted at a hearing on appeal which was requested during such period will be considered to have been received during such period, even though the hearing may be held following the expiration of the period. Any pertinent evidence submitted by the appellant or representative is subject to the requirements of paragraph (d) of this section if a simultaneously contested claim is involved. (b) Subsequent request for a change in representation, request for a personal hearing, or submission of addi-

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38 C.F.R. 20.1304

Page 2

treated by that agency as the basis for a reopened claim, if appropriate. If the Board denied a benefit sought in the pending appeal and any evidence so referred which was received prior to the date of the Board's decision, or testimony presented 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 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. (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 representative will be accepted, subject to the requirements of paragraph (d) of this section if a simultaneously contested 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 representative which is accepted by the Board under the provisions of this section, or is submitted by the appellant or representative in response to a 20.903 of this part, notification, as well as any such evidence referred to the Board by the agency of original jurisdiction 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 simultaneously 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 evidence 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 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 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 reasonableness 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 reasonableness. (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 specific 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

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38 C.F.R., Appendix A to Part 20 (July 1, 1993)

Pt. 20, App. A

38 CFR Ch. I (7-1-93 Edition)

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Department of Veterans Affairs

20.1304

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20.1304

38 CFR Ch. I (7-1-93 Edition)

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ADD-37

38 C.F.R., Appendix A to Part 20 (July 1, 2011)

20.1510

38 CFR Ch. I (7111 Edition)

APPENDIX A TO PART 20CROSS-REFERENCES

Sec. 20.1 .......... 20.100 ...... 20.200 ...... 38 38 38 38 38 38 38 38 38 38 38 38 38 Cross-reference CFR CFR CFR CFR CFR CFR CFR CFR CFR CFR CFR CFR CFR 3.103(a) ................ 20.306 ................... 20.201 ................... 20.202 ................... 20.30020.306 ...... 19.29 ..................... 19.31 ..................... 20.500 ................... 20.602 ................... 20.603 ................... 20.604 ................... 20.605 ................... 20.501 ................... Title of cross-referenced material or comment Statement of policy. Rule 306. Legal holidays. Rule 201. Notice of Disagreement. Rule 202. Substantive Appeal. See re filing Notices of Disagreement and Substantive Appeals. Statement of the Case. Supplemental Statement of the Case. Rule 500. Who can file an appeal in simultaneously contested claims. Rule 602. Representation by recognized organizations. Rule 603. Representation by attorneys-at-law. Rule 604. Representation by agents. Rule 605. Other persons as representative. Rule 501. Time limits for filing Notice of Disagreement, Substantive Appeal, and response to Supplemental Statement of the Case in simultaneously contested claims. Rule 304. Filing additional evidence does not extend time limit for appeal. Rule 503. Extension of time for filing a Substantive Appeal in simultaneously contested claims. Rule 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 holidays. Rule 713. Hearings in simultaneously contested claims. Rule 713. Hearings in simultaneously contested claims. Rule 713. Hearings in simultaneously contested claims. See also re representation. Rule 602. Representation by recognized organizations. Rule 603. Representation by attorneys-at-law. Rule 604. Representation by agents. Rule 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 representatives authority to act. Rule 608. Withdrawal of services by a representative. Rule 609. Payment of representatives fees in proceedings before Department of Veterans Affairs field personnel and before the Board of Veterans Appeals. Rule 610. Payment of representatives 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 representatives authority to act. Rule 608. Withdrawal of services by a representative. Rule 609. Payment of representatives fees in proceedings before Department of Veterans Affairs field personnel and before the Board of Veterans Appeals. Rule 610. Payment of representatives expenses in proceedings before Department of Veterans Affairs field personnel and before the Board of Veterans Appeals.

20.202 ...... 20.301 ......

20.302 ......

20.303 ......

38 CFR 20.304 ................... 38 CFR 20.503 ................... 38 38 38 38 38 38 38 38 38 38 38 38 38 38 38 38 38 38 38 38 38 38 38 38 38 CFR CFR CFR CFR CFR CFR CFR CFR CFR CFR CFR CFR CFR CFR CFR CFR CFR CFR CFR CFR CFR CFR CFR CFR CFR 20.306 ................... 19.5019.53 .......... 19.5019.53 .......... 20.30220.306 ...... 20.501, 20.503 ...... 20.713 ................... 20.305 ................... 20.306 ................... 20.713 ................... 20.305 ................... 20.306 ................... 20.713 ................... 20.713 ................... 20.713 ................... 14.626 et seq ........ 20.602 ................... 20.603 ................... 20.604 ................... 20.605 ................... 14.628 ................... 14.631 ................... 20.100 ................... 20.607 ................... 20.608 ................... 20.609 ...................

20.305 ...... 20.400 ...... 20.401 ......

20.500 ...... 20.501 ......

20.502 ......

20.503 ...... 20.504 ...... 20.600 ......

20.602 ......

38 CFR 20.610 ................... 20.603 ...... 38 38 38 38 38 38 38 CFR CFR CFR CFR CFR CFR CFR 14.629 14.631 20.100 20.606 20.607 20.608 20.609 ................... ................... ................... ................... ................... ................... ...................

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Sec. 20.604 ...... 38 38 38 38 38 Cross-reference CFR CFR CFR CFR CFR 14.631 20.100 20.607 20.608 20.609 ................... ................... ................... ................... ...................

Pt. 20, App. A

Title of cross-referenced material or comment

38 CFR 20.610 ................... 20.605 ...... 38 38 38 38 38 38 CFR CFR CFR CFR CFR CFR 14.630 14.631 20.100 20.607 20.608 20.609 ................... ................... ................... ................... ................... ...................

38 CFR 20.610 ................... 20.606 ...... 20.607 ...... 20.609 ...... 38 38 38 38 38 38 38 CFR CFR CFR CFR CFR CFR CFR 20.603 ................... 14.631(d) .............. 14.629 ................... 20.603 ................... 20.604 ................... 20.606 ................... 20.610 ...................

20.610 ...... 20.611 ...... 20.701 ...... 20.702 ......

38 CFR 20.609 ................... 38 CFR 1.525(d), 14.631(e) 38 CFR 20.710 ................... 38 CFR 20.704 ................... 38 CFR 20.713 ................... 38 CFR 20.201 ................... 38 CFR 20.702 ...................

20.703 ...... 20.704 ......

20.706 ......

20.707 ...... 20.708 ...... 20.709 ......

38 38 38 38 38

CFR CFR CFR CFR CFR

20.700(c) ............... 20.708 ................... 20.709 ................... 19.11 ..................... 20.606(d) ..............

38 CFR 19.37 ..................... 38 CFR 20.1304 .................

20.710 ...... 20.711 ...... 20.713 ......

38 CFR 20.711 ................... 38 CFR 2.1 ......................... 38 CFR 20.702 ...................

38 CFR 20.704 ................... 20.715 ...... 20.800 ...... 38 38 38 38 CFR CFR CFR CFR 20.706 ................... 20.304 ................... 20.709 ................... 20.1304 .................

20.901 ...... 20.903 ...... 20.1003 .... 20.1105 ....

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38 38 38 38 38 38 38

CFR CFR CFR CFR CFR CFR CFR

14.507 ................... 20.305 ................... 20.306 ................... 20.700(b) .............. 3.156 ..................... 3.160(e) ................ 20.1304(b)(1) ........

20.1106 ....

38 CFR 3.22(a)(2) ..............

Powers of attorney. Rule 100. Name, business hours, and mailing address of the Board. Rule 607. Revocation of a representatives authority to act. Rule 608. Withdrawal of services by a representative. Rule 609. Payment of representatives fees in proceedings before Department of Veterans Affairs field personnel and before the Board of Veterans Appeals. Rule 610. Payment of representatives expenses in proceedings before Department of Veterans Affairs field personnel and before the Board of Veterans Appeals. Authorization for a particular claim. Powers of attorney. Rule 100. Name, business hours, and mailing address of the Board. Rule 607. Revocation of a representatives authority to act. Rule 608. Withdrawal of services by a representative. Rule 609. Payment of representatives fees in proceedings before Department of Veterans Affairs field personnel and before the Board of Veterans Appeals. Rule 610. Payment of representatives expenses in proceedings before Department 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 representatives, agents, and attorneys. Rule 603. Representation by attorneys-at-law. Rule 604. Representation by agents. Rule 606. Legal interns, law students and paralegals. Rule 610. Payment of representatives expenses in proceedings before Department of Veterans Affairs field personnel and before the Board of Veterans Appeals. Rule 609. Payment of representatives fees in proceedings before Department of Veterans Affairs field personnel and before the Board of Veterans Appeals. See also re continuation of authority conferred by powers of attorney upon the death of a claimant. Rule 710. Witnesses at hearings. Rule 704. Scheduling and notice of hearings conducted by traveling Sections of the Board of Veterans Appeals at Department of Veterans Affairs facilities. Rule 713. Hearings in simultaneously contested claims. Rule 201. Notice of Disagreement. 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. See also re the presiding Members role in the conduct of hearings. Rule 708. Prehearing conference. Rule 709. Procurement of additional evidence following a hearing. Reconsideration Section. See re the prehearing conference required when a legal intern, law student, or paralegal is to participate in a hearing held before a traveling Section of the Board. Consideration of additional evidence received by the agency of original jurisdiction after an appeal has been initiated. 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. Rule 711. Subpoenas. See for further information on subpoenas, including action to be taken in the event of noncompliance. 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. Rule 704. Scheduling and notice of hearings conducted by traveling Sections of the Board of Veterans Appeals at Department of Veterans Affairs facilities. Rule 706. Functions of the presiding Member. Rule 304. Filing additional evidence does not extend time limit for appeal. Rule 709. Procurement of additional evidence following a hearing. 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. See re opinions of the General Counsel of the Department of Veterans Affairs. Rule 305. Computation of time limit for filing. Rule 306. Legal holidays. See re submission of written brief and of oral argument on audio cassette. New and material 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 a reopened claim. See re correction of a rating, after a veterans death, based on clear and unmistakable error, in cases involving claims for benefits under the provisions of 38 U.S.C. 1318.

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Pt. 21
Sec. 20.1300 .... Cross-reference 38 CFR 1.5001.527 .......... 38 CFR 1.5501.559 .......... 38 CFR 1.5751.584 .......... 38 CFR 20.1301 ................. 38 CFR 1.577 ..................... 38 CFR 20.611 ................... 38 CFR 3.103(c), 20.700 20.717. 38 CFR 3.156 ..................... 38 CFR 3.160(e) ................ 38 CFR 20.305 ................... 38 CFR 20.306 ...................

38 CFR Ch. I (7111 Edition)

Title of cross-referenced material or comment 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. Disclosure of information. Access to records. Rule 611. Continuation of representation following death of a claimant or appellant. See also re hearings. New and material evidence. Reopened claim. Rule 305. Computation of time limit for filing. Rule 306. Legal holidays.

20.1301 .... 20.1302 .... 20.1304 ....

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38 C.F.R., Appendix A to Part 20

38 C.F.R. Pt. 20, App. A

(Post-August 23, 2011)

Page 1

Code of Federal Regulations Currentness Title 38. Pensions, Bonuses, and Veterans' Relief Chapter I. Department of Veterans Affairs (Refs & Annos) Sec. Cross-reference

Part 20. Board of Veterans' Appeals: Rules of Practice (Refs & Annos) APPENDIX A TO PART 20--CROSSREFERENCES

Title of cross-referenced material or comment Rule 306. Legal holidays. Rule 201. Notice of Disagreement. Rule 202. Substantive Appeal. See re filing Notices of Disagreement and Substantive Appeals. Statement of the Case. Supplemental Statement of the Case. Rule 500. Who can file an appeal in simultaneously contested claims. Rule 602. Representation by recognized organizations. Rule 603. Representation by attorneysat-law. Rule 604. Representation by agents. Rule 605. Other persons as representative. Rule 501. Time limits for filing Notice of Disagreement, Substantive Appeal, and response to Supplemental Statement of the Case in simultaneously contested claims. Rule 304. Filing additional evidence does not extend time limit for appeal. Rule 503. Extension of time for filing a Substantive Appeal in simultaneously contested claims. Rule 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

20.100 20.200

38 CFR 20.306 38 CFR 20.201 38 CFR 20.202 38 CFR 20.300-20.306

20.202 20.301

38 CFR 19.29 38 CFR 19.31 38 CFR 20.500 38 CFR 20.602 38 CFR 20.603 38 CFR 20.604 38 CFR 20.605

20.302

38 CFR 20.501

20.303

38 CFR 20.304 38 CFR 20.503

20.305 20.400 20.401

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

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38 C.F.R. Pt. 20, App. A

Page 2

20.500 20.501

38 CFR 20.713 38 CFR 20.305 38 CFR 20.306 38 CFR 20.713

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 holidays. Rule 713. Hearings in simultaneously contested claims. Rule 713. Hearings in simultaneously contested claims. Rule 713. Hearings in simultaneously contested claims. See also re representation. Rule 602. Representation by recognized organizations. Rule 603. Representation by attorneysat-law. Rule 604. Representation by agents. Rule 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 authority 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' Appeals. Rule 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.

20.502

38 CFR 20.305 38 CFR 20.306 38 CFR 20.713

20.503 20.504 20.600

38 CFR 20.713 38 CFR 20.713 38 CFR 14.626 et seq. 38 CFR 20.602 38 CFR 20.603 38 CFR 20.604 38 CFR 20.605

20.602

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

20.603

38 CFR 14.629 38 CFR 14.631

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Page 3

38 CFR 20.100 38 CFR 20.606 38 CFR 20.607 38 CFR 20.608 38 CFR 20.609

38 CFR 20.610

20.604

38 CFR 14.631 38 CFR 20.100 38 CFR 20.607 38 CFR 20.608 38 CFR 20.609

38 CFR 20.610

20.605

38 CFR 14.630 38 CFR 14.631 38 CFR 20.100 38 CFR 20.607 38 CFR 20.608 38 CFR 20.609

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 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' Appeals. Rule 610. Payment of representative's expenses in proceedings before Department of Veterans Affairs field personnel and before the Board of Veterans' Appeals. Powers of attorney. Rule 100. Name, business hours, and mailing address of the Board. Rule 607. Revocation of a representative's authority 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' Appeals. Rule 610. Payment of representative's expenses in proceedings before Department of Veterans Affairs field personnel and before the Board of Veterans' Appeals. Authorization for a particular claim. Powers of attorney. Rule 100. Name, business hours, and mailing address of the Board. Rule 607. Revocation of a representative's authority 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' Appeals. Rule 610. Payment of representative's expenses in proceedings before De-

38 CFR 20.610

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38 C.F.R. Pt. 20, App. A

Page 4

20.606 20.607 20.609

38 CFR 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

partment of Veterans Affairs field personnel and before the Board of Veterans' Appeals. Rule 603. Representation by attorneysat-law. See also re revocation of powers of attorney. Requirements for accreditation of representatives, agents, and attorneys. Rule 603. Representation by attorneysat-law. Rule 604. Representation by agents. Rule 606. Legal interns, law students and paralegals. Rule 610. Payment of representative's expenses in proceedings before Department 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 Affairs field personnel and before the Board of Veterans' Appeals. See also re continuation of authority conferred by powers of attorney upon the death of a claimant. Rule 710. Witnesses at hearings. Rule 704. Scheduling and notice of hearings conducted by traveling Sections of the Board of Veterans' Appeals at Department of Veterans Affairs facilities. Rule 713. Hearings in simultaneously contested claims. Rule 201. Notice of Disagreement. 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. See also re the presiding Member's role in the conduct of hearings. Rule 708. Prehearing conference. Rule 709. Procurement of additional evidence following a hearing. Reconsideration Section.

20.610

38 CFR 20.609

20.611

38 CFR 1.525(d), 14.631(e)

20.701 20.702

38 CFR 20.710 38 CFR 20.704

38 CFR 20.713 20.703 20.704 38 CFR 20.201 38 CFR 20.702

20.706

38 CFR 20.700(c) 38 CFR 20.708 38 CFR 20.709

20.707

38 CFR 19.11

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38 C.F.R. Pt. 20, App. A

Page 5

20.708

38 CFR 20.606(d)

20.709

38 CFR 19.37

38 CFR 20.1304

20.710 20.711

38 CFR 20.711 38 CFR 2.1

20.713

38 CFR 20.702

38 CFR 20.704

20.715 20.800

38 CFR 20.706 38 CFR 20.304 38 CFR 20.709 38 CFR 20.1304

20.901 20.903

38 CFR 14.507 38 CFR 20.305 38 CFR 20.306

See re the prehearing conference required when a legal intern, law student, or paralegal is to participate in a hearing held before a traveling Section of the Board. Consideration of additional evidence received by the agency of original jurisdiction after an appeal has been initiated. 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. Rule 711. Subpoenas. See for further information on subpoenas, including action to be taken in the event of noncompliance. 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. Rule 704. Scheduling and notice of hearings conducted by traveling Sections of the Board of Veterans' Appeals at Department of Veterans Affairs facilities. Rule 706. Functions of the presiding Member. Rule 304. Filing additional evidence does not extend time limit for appeal. Rule 709. Procurement of additional evidence following a hearing. 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. See re opinions of the General Counsel of the Department of Veterans Affairs. Rule 305. Computation of time limit for filing. Rule 306. Legal holidays. See re submission of written brief and of oral argument on audio cassette. New and material evidence.

20.1003 20.1105

38 CFR 20.700(b) 38 CFR 3.156

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38 C.F.R. Pt. 20, App. A

Page 6

38 CFR 3.160(e) 38 CFR 20.1304(b)(1)

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 a reopened claim. See re correction of a rating, after a veteran's death, based on clear and unmistakable error, in cases involving claims for benefits under the provisions 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. Disclosure of information. Access to records. Rule 611. Continuation of representation following death of a claimant or appellant. See also rehearings. New and material evidence. Reopened claim. Rule 305. Computation of time limit for filing. Rule 306. Legal holidays. END OF DOCUMENT

20.1106

38 CFR 3.22(a)(2)

20.1300

38 CFR 1.500-1.527

38 CFR 1.550-1.559

38 CFR 1.575-1.584

38 CFR 20.1301 20.1301 20.1302 38 CFR 1.577 38 CFR 20.611

20.1304

38 CFR 20.700-20.717 38 CFR 3.156 38 CFR 3.160(e) 38 CFR 20.305 38 CFR 20.306

[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

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14780
Ascending boats, while waiting their turn to enter, must keep out far enough to. give boats leaving the lock free passage between them and the pile clusters or riverbank. (h) Entrance to and exit from locks. In case two or more boats or tows are to enter for the same lockage, their order of entry shall be determined by the lock officer or his authorized agent. No boat shall attempt to run ahead of another while in a lock. The boat that enters first shall have precedence in exit. (i) Unnecessary delay at locks. (1) Vessels must not obstruct navigation by unnecessary delay in entering or leaving locks. Masters and pilots will be held to a strict accountability in this respect. Boats or other craft failing to enter locks with reasonable promptness after being signaled to do so will lose their turn. (2) Boats arriving in the entrance to the locks with their tows so shaped as -not'to facilitate locking, or in a leaky condition, may, in the discretion of the lockmaster, lose their turn. (3) Leaky boats may be excluded from the locks until they are put in shape to be safely passed. (j) Mooring in locks. Steamboats and other craft, when in the locks, shall be moored where directed by the lock officer, by bow, stem, and spring lines to the snubbing posts or hooks provided for that purpose. Tying boats to the lock ladders is strictly prohibited. (k) Handling of boats and rafts. The captains in charge of tows and those in charge of rafts must provide sufficient men to move barges and rafts in and out of the locks without unnecessary delay. (1) Protectionof lock gates. Boats will not be permitted to enter or leave the locks until the lock gates are fully in the gate recesses and the lock officer has directed the boat to start. (m) Damage to locks or other structures. This section shall not affect the liability of the owners and operators of boats for any damage caused by their operations to locks or other structures. The sides of all craft passing through locks must be free from projections of any kind or sharp comers which might injure the walls. Steamboats must be provided with suitable fenders. One man shall be kept at the head of every tow until it has cleared the lock and guide walls. He shall use fender to protect walls and use pike pole to help pass drift or ice while in the vicinity of lock. (n) Handling machinery. None but employees of the United States for the purpose will be allowed to move any valves, gate, or other machinery belonging to the locks, but the lockmaster or his assistant may call for assistance from the master of any boat using the. locks, should such aid be necessary, and when rendering such assistance the men so employed shall be strictly under the orders of the lockmaster or his assistant. (o) Refuse in locks. The placing of any ashes, refuse, or obstructions in the entrance of locks or in the locks, or on the walls thereof, is prohibited. (p) Commercial statistics. Masters or clerks of boats shall furnish in writing

RULES AND REGULATIONS

to lock officers such statistics of passengers and cargoes as may be required. (q) Trespass on lock property. (1) The landing of freight or baggage on the lock walls or lock grounds will not be allowed, except for the use of the Government or its employees. (2) Trespass on lock property or injury to the entrance, banks, cribs, locks, fences, trees, houses, shops, or other property of the United States pertaining to the locks is strictly prohibited. (r) Penalties. In addition to the penalties prescribed by the Act of Congress previously quoted, boats which fall to comply with paragraphs (a) to (q) of this section will be refused lockage until they are complied with. (s) Lights. (1) Except when submerged, each lock and adjacent pier of the dam will be lighted from sunset to sunrise without regard to the moon. A white light on the pier and a red light on the lock will indicate that the dam is navigable between the lights and the lock is not. A red light on the pier and a white light on the lock will indicate that the lock is navigable and the dam is not. A white light on both pier and lock will indicate that both dam and lock are navigable, the dam between the lights only. A red light on both pier and lock are navigable, the dam between the dam is navigable. Red and white lights on the lock will be exposed on the river wall at its junction with the dam. The downstream end of the river wall will be marked by a green light. (2) When lock and piers are submerged, and for locks where the river configuration will permit, a white light will be exposed on the bank, both above and below the lock, the two lights defining a line crossing the dam at the middle point of the navigation pass. In other cases, when locks and piers are submerged, two red lights will be exposed, one above the other, on the bank at the upstream end of the land wall of the lock. t) Raising or lowering dams. When a dam is being raised or lowered all passing craft must use the lock until signaled that the pass is clear, and descending boats or tows desiring to go through the navigation pass must remain above the head of the lock until signaled to proceed. u) Avoidance of dams. When dams are raised all boats plying in upper pools, but not intending to enter lock, are forbidden to approach nearer to dams than a line extending across the river from the pile cluster fartherest upstream from lock. (v) Damage to construction work. To avoid damage or hindrance by wave action to plant or structures connected with the construction or repair of locks and dams, during the time when such work is in actual progress, steamboats should regulate their speed between the lower line of such work (including plant) and a point 500 yards above the upper line of work. Between such limits, ascending boats will reduce their speed to not exceed 3 miles per hour, and descending boats will reduce their speed to 3 miles in excess of the current, which may be exceeded if the wheel is Idle. (w) Complaints. Complaints or other communications relating to the navigation of the Ouachita-Black River System or the maintenance and operation of the locks, dams, and bridges should be addressed to the U.S, Army Engineer District, Vicksburg, Vicksburg, Miss. (x) Vessels to carry regulations, A copy of the regulations of this section will be furnished to masters of boats on application to lock officers, [Regs. July 5, 1972, 1622-01 (Ouachita and
Black Rivers, Arkansas-Loulslana) DAENCWO-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 Indemnify Compensation DUE PROCESS AND APPELLATE RIGHTS of May 27, 1972, there was published a notice of proposed rule malng to Issue a rekulation concerning duo process and appellate rights. Interested persons were given 30 days in which to submit comments, suggestions, or objections regarding the proposed regulations. No written objections have been received and the proposed regulation is hereby adopted without change and Is set forth below. Effective date. This VA regulation Is effective the date of approval. Approved: July 18, 1972. By direction of the Administrator. 1IFED B. RIIoDES, [SEAL] 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 related relief. (a) Statement of policy. Proceedings before the Veterans Administration are ex parte in nature. It is the obligation of the Veterans Administration to assis 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, This principle and the other provisions of this section apply to all claims for benefits and relief and decisions thereon within the purview of this part.

On page 10745 of the FEDERAL REGISTR

FEDERAL REGISTER, VOL. 37, NO. 143-TUESDAY,

JULY 25, 1972

ADD-47

RULES AND REGULATIONS

(b) Submission of evidence. Any evidence whether documentary, testimonial, or in other form, offered by a claimant In support of a claim and any issue he may raise and contention and argument he may offer with respect thereto are to be included in the records. (c) Hearings. Upon request a claimant is entitled to a hearing at any time on any issue involved in a claim within the purview of this part. The Veterans Administration will provide the place of hearing in the Veterans Administration office having original jurisdiction over the claim or at the Veterans Administration office nearest his home having adjudicative functions and will provide Veterans Administration personnel who have original determinative authority of such issues to be responsible for the preparation of the transcript; however, further expenses involved will be the responsibility of the claimant. The claimant is entitled to produce witnesses and all testimony will be under oath or affirmation. The purpose of such a hearing is to permit the claimant to introduce into the record in person any evidence available to him which he may consider material and any arguments and contentions with respect to the facts and applicable law which he may consider pertinent. 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. It is their further responsibility to establish and preserve the record. Because of this and to assure clarity and understanding therein, questions which are directed to the claimant and to witnesses are to be framed to explore fully the basis for claimed entitlement rather than with an intent to refute evidence and to discredit testimony. !n cases in which the nature, origin, or degree of disability is in issue, the claimant may request visual examination by the physician designated by the Veterans Administration as a participant in the hearing and his observations will be read into the record. (d) Representation. Within the provisions and criteria of 14.626 through 14.663 of this chapter a claimant is entitled to representation of his choice at every stage in the prosecution of a claim. (e) Notification of decisions. The claimant will be notified of any decision affecting the payment of benefits or granting relief. Notice will include the reason for the decision and the date it will be effectuated as -well as the right to a hearing subject to paragraph (c) of this section. The notification will also advise the claimant of his right to initiate an appeal by filing a Notice of Disagreement which will entitle him to a Statement of the case for his assistance in perfecting his appeal. Further, the notice will advise him of the periods in which an appeal must be initiated and perfected. (See Part 19, Subpart B of this chapter on appeals.) [FR Doc.72-11490 Filed 7-21--72;8:561

14781
09406 09407-. 09411-. 09451-. 09452 09454 09501 095M2 09505 09510.. 09511-. 09512.. 09513.. 09514.. 09515.. 0951609517.. 09518. 09520.. 0952109522.09523095240952509526 09527.. 09528.. 09529.. 09530 09531-.09540 09544. 09546 09550 09551 09552 053 09554 09555 095 093559 09560 09571 09580.. B 09534- B 09535.. B 09593 09597 09598 09607.. A-B#-C 03611. B-C-D 09616. B-F-I-B 09633... B-C-fl 09859.. A-BO-C 09662 OA664._ N 09668.. B-C-fl 0967. Be 09810 B-.C-1 09=.2 09676.. B-C-I 09M8... B-I-N 09820. B-C-D 09634. 0916w9.. B-C..I' 09690_ A 09692.. B-C-fD 09697.. A-F-109701.. B-C-D 09702.. 0974209743.. 09751. 09755. 0757. 0917.09724... 09801.. 09307. 09 25. 09329.. 0957.. 09332... 09334-. 09837-. B-C-D B-C-D B-C-D B-C-fl A-B-C B-C-fl A-B-C-B B-C..11 B-C-D B-C-D B B B B B B B-C-fl B-C-D B-C-D 09887. 09M-9. 09891. 09892-0989309895... 09197 09399.. 96201.. 803.08204... 96205 . 9208.. 06209.. 06210.. 96211.. 96212. 9621596217_ 9=8 9622096=.96222.. 98224.. 962 7. 96230.. 96231. 96232 96233 96234. 96235 962=6. 96237 96239 40 . 96243.. 98245 96248 96251.. 96256. 98257. 96253.. 96259.. 96280.. 96281 96263...
9624-_.

Title 39-POSTAL SERVICE

Chapter I-U.S. Postal Service
PART 126-MAIL ADDRESSED TO MILITARY POST OFFICES OVERSEAS Conditions Prescribed by Defense
Department Section 126.2 of Title 39, Code of Federal Regulations, is revised in order to list therein all overseas military post offices, and to update restrictions applicable to certain military post offices. Accordingly, 126.2 is amended to read as follows:

B-D-F-I-M-N B--IC-N

B-IC-N

A-B-F-I C-P-H-I-M-N B3-I-3L B-I-C A-P A-P A-P A-P A-B A-B-H A-B-CE A-B A-B A-P A-P A-B A-B A-P A-P A-B A-7 L A-B A-P r A-F A-P A-B A-P A-P A-F A-B A-7 FI
A-B

A-B,-C-J A-BO-C-J A-B-C-J A-C-fl A-C-D A-Be-C-J A-B'-C-I-J A-C-D A-Bo-C-J A-C-I A-C-I1 A-C-.I 1 A-C- 1 A-C-I1 A A-N A A-C-X A-B-C-F-M A-B-C-B

96213.. A-B

126.2

Conditions prescribed by the Defense Department applicable to mail addressed to certain military post offices overseas.
B- - 1 B-C-I' B-C-fl B-C-D B-C B-C-D B-C-fl B-C-I1 B B-C-D B-C-f B-C-D B-C-D B-C-D B-C-D B-C-D B-C-D B-C-fl B-P-I-R B-C-D A-B-F-I B-C-D B-C-D B-C-D A-BO-C B-C-D A-B-FB-C-D B-C-D B-C-D Be B-C-D B-C-D B-C-D B-C-D B-C-D B-C-D B-C-D B-C-D B-C-D B-C-D B-C-D B-C-D A-B'-C B-C-D B-C-D B-C-D B-C-D B-C-D
B-C-fl

09001.. 09002-. 09008.. 009__ 09011.. 09012.. 09013__ 09019.. 09020.. 09023 09025. 09026., 09028. 09029.. 09031.. 09033.. 09034.. 09035., 09036.. 09038. 09039, 09040-09045. 09046... 09047__ 09048-09050.. 09051.. 09052.. 09053-. 09054.. 09055.. 09056.. 09057.. 09058.. 09059.09060-09061__ 09066.. 09067.. 0906809069.. 09070.. 0907409075-09078, 09079-09080.09081.. 09082-. 09085 09086.. 09088.. 09090. 09091. 09093__ 09095..

09098_. B-C-D 09099.- B-C-D

Be B-C-D B-C-D B-C-fl B-C-D

09139. B-C-D 09140.. B-C-D 09141.. B-C-D 09142.. B-C-D 09144-. B--fD 09146.. B-C-fl 09149-. B-C-D 09150- A-B'-C 09154.. B-C-D 09155.. A-B 09159. B-C 09160.. B-C-D 09161.. 309162.. B-C-D 09164.. B-C-f 09165.. B-C-D 09166.. B-C-D z 09168__ B-C-I" 09169.. B-C-D 09170.. C-D-N 09171-. B-C-fl 09172-. B-C-D 09173- B-C-D 09175- B-C-D 09176.. B-C-D 09177.. B-C-D 09178.. B-C-D 09179.. A-B*-C 09180.. B-C-D 09184-. B-C-D 09185.. B-C-D 09189.. B-C-D 09193.. A-Be-C 09194. A-B-O 09205. A-B 09210.- A-B-C 09218- A-B09220_ B-C-f 09221. B-C-Il 09223.. A 09224. A-B-F-I 09227.. B-C-D 09238. A-BO-C 09240. B-C-I I 09245.. B-C-f 09252.. B-G-D 09253- A 09254. A-B-F-I 09277.. B-C-fl 092I1 B-C-D 09282 0923 09284 09285 092BG 9239_. A-B-F-I 0929L-- A
09292.. B-O 09293.. B-C-Il

98268 7.. 96263.. 9=096-2-_

A-P A-B-I A-P A-B-IC A-B

926.... 96279820.. 9631... 93.. 96290.. 96272 96291-. 96293.. 9627...5 9629496295.. 962.. 96297. 96233. 96299.. 96M196301 96302--

A-B F1 A-B-I A-B-H-Q FI

A-P

FA-P A-P A-P A-P H A-B..IC A-B A-B

96304 96305 96307. A-P 96303. A-P 96309.. A-P 9012. S96313... 90314-. 96315 963.33. 9M316. 96318... 96319.. 96323.. 9634.. 96325. 96323... 96=3 96310 A-P B..H-I A-F A-P A-P FI A-B-IC A-B A-P A-B-IC

09101L_ B-C-D 09102.. B-C-D

09107.. 09108., 09109.. 09111_.

09114__ B-C-fl 09120.. A-BO-0 09121

B-C-D B-C-D B-C-D B-C-fl

09319.. 09320-. 09322.. 09324-

09294.. A-B-F-I 09205.. B-C-D

09123.. B-C-D
09125_._ 09127.. 09128._ 09130_. 09131..
09132. 09133.. 09137. 09138__

09320.. B-C-D 09330.. B-C-D 09332. B-C-D

B-C-fl A-B-F-I B-C-D A-B-F-I

03Z43- B-C-D 09345 09851 091160. B-C-fl 0962.. N

96332.. A-F 96334 96335--. A-B 963. A-B-IC

A-B*-C A-B*-C B-C-fl B-C-f) B-C-D

B-C-D A-B-FB-C-fl B-C-D

09333.. B-C-D
09351.. 0-1352.. 09353.. 09360.. 09378-

09380_ A-B-P-I 09401 09403. B-C-D 09405- A-BO-O

B-C-D B-C-f B-C-D B-C-fl A-B-0

092:0 B-I-L-M
09369.. 09370.. 09571. 0972M..,. 09 5. 09379. 0930_ B-C--IC-MC-fl-N B-.ICxr B-C-D B-M H-I-Im-N A-B-F-I-L

9M37._ A-F 9=33. A-B-IC

96339 96340.. 96M4 96343.. 96346 96347.. 9M38.. 96349... 96356 F1

A-B-IC A-P A-P A-F

See footnotes at end of document.

09383.. B-I-I-N 093a35 21

FEDERAL REGISTER, VOL 37, NO. 143-UESDAY, JULY 25, 1972

ADD-48

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:

.6961

Final rule; notice of effective

date. This document announces the effective date for the final rule published in the Federal Register on December 2, 1982 (47 FR 54293) which implements two statutory changes requiring reexamination of family income "no less frequently than annually" under HUD's Public Housing and Section 8 Housing Assistance Payments Programs. The effective date provision of the rule stated that the rule would become effective upon expiration of the first period of 30 calendar days of continuous session of Congress after publication, but not before publication of further notice of the effective date in the Federal Register. Based on the present Congressional schedule, it is expected that the 30-session-day period will expire during March 1983. EFFECTIVE DATE: The effective date for the final rule published December 2, 1982 at 47 FR 54293 is April 1, 1983.
SUMMARY: FOR FURTHER INFORMATION CONTACT.

N.W., Washington, D.C. 20420 (202-3892978).

SUPPLEMENTARY INFORMATION: On

ACTION: Stay of effective date of final rule. SUMMARY: The CAR is staying the effective date of its domestic baggage liability rule in order to more fully consider issues raised in a petition by certain members of the Air Transport Association to repeal the rule prior to its effective date. Pending completion of this new rulemaking, the currently effective baggage orders (without their tariff-filing requirement) will remain in effect.
DATES:

Adopted: February 8, 1983. Effective: February 8, 1983.

FOR FURTHER INFORMATION CONTACT.

Joanne Petrie, Office of the General Counsel, Civil Aeronautics Board, 1825 Connecticut Avenue, NW., Washington, D.C. 20428; 202-673-5442.
SUPPLEMENTARY INFORMATION:

Edward Whipple, Office of Public

Housing, (202) 426-0744; James Tahash,

Accordingly, the Civil Aeronautics Board suspends the February 22, 1983, effective date of 14 CFR Part 254, issued as 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, as amended, 72 Stat. 743, 758, 760, 769; 49 U.S.C.
1324, 1373, 1374, 1381)

Program Planning Division, Office of Multifamily Management, (202) 7555654; or Steven Silvert, Office of State Agency and Bond Financed Programs,
(202) 755-7177; Department of Housing

and Urban Development, Washington, D.C. 20410. These are not toll-free telephone numbers. Dated: February 10, 1983. Grady J.Norris,
Assistant GeneralCounselfor Regulations.
[FI Doc. 83-4111 Filed 2-16-83; 8:46 am] BILUNG CODE 4210-27-M

By the Civil Aeronautics Board. Phyllis T. Kaylor, Secretary.

[FR Dec. 83-4165 Filed 2-16-83;845 am] BILLING CODE 6320-01-1

VETERANS ADMINISTRATION 38 CFR Part 19 Appeals Regulations; Rules of Practice

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT Office of Assistant Secretary for Housing-Federal Housing Commissioner 24 CFR Parts 804,805,860, 880,881, 882,883,884 and 886 [Docket No. R-82-10451 Reexamination of Family Income for the Public Housing and Section 8 Housing Assistance Payments Programs AGENCY: Assistant Secretary for Housing-Federal Housing Commissioner, HUD.

AGENCY: Veterans Administration. ACTION: Final regulations.

SUMMARY: The Veterans Administration

is amending the Appeals Regulations of the Board of Veterans Appeals to add a new regulation regarding appellate jurisdiction of determinations of the Department of Medicine and Surgery. The Board of Veterans Appeals Rules of Practice have also been revised in order to clarify existing practices before the Board of Veterans Appeals.
EFFECTIVE DATE: January 1, 1980.
FOR FURTHER INFORMATION CONTACT.

Mr. Jan Donsbach (01C), Special (Legal) Assistant to the Chairman, Board of Veterans Appeals, 810 Vermont Avenue

pages 56093-56104 of the Federal Register of August 22, 1980, there was published a notice of proposed rulemaking to amend Part 19. Interested persons were given 30 days in which to submit comments regarding the proposal. The Veterans Administration received many suggestions. The comments, and our action on those comments are listed below. We have first addressed those comments of a general nature which do not relate to a specific rule or appeals regulation. The comments relating to specific rules or regulations follow thereafter. One organization expressed the opinion that the proposed additional rules have the effect of strengthening the insulation of the Veterans Administration from outside advocacy. In formulating these new rules, as well as revising existing rules, the aim was to clarify as much as possible the existing procedures for appeals. The proposed rules were developed to assist representatives who were not employed by major service organizations and who have not had many years of experience practicing before the Board in presenting their appeals before the Board and also to assist those appellants who specifically did not desire representation. Contrary to the commenter's opinion, these rules will encourage greater participation by all advocates. A group criticized the rules for being too technical and legalistic and claimed that they created more formal and complex procedures. This was believed to work to the disadvantage of unrepresented appellants. There is little complex legal terminology used in the .rules. Confusing terminology was defined and clarified, as suggested by some commenters. Furthermore, Rule 1(c) guarantees that the Rules of Practice will be interpreted in a manner most favorable to the appellant. One group suggested that a rule be added requiring that claimants be notified that the filing of a notice of disagreement might result in reduced benefits and that the Board of Veterans Appeals does not traditionally reduce benefits. This comment could be viewed as influencing the claimant as to whether to appeal and is not proper subject matter for these rules. This area relates in particular to those subjects normally discussed between claimant and representative. Comments were received requesting that processing times for preparation of

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Federal Register / Vol. 48, No. 34 / Thursday, February 17, 1983 / Rules and Regulations the Vice Chairman should be clarified, as well as the term "administrative action" in paragraph (b). Section 19.3. This regulation is now numbered as 19.2. A request was made that the Board list those particular issues over which it had no jurisdiction. The current list of subject matter is very lengthy and an additional list over which the Board had no appellate jurisdiction would only tend to, further confuse the regulation. Furthermore, It could be incorrectly assumed that a particular issue which was not listed as being exempt would be under he Board's jurisdiction. This regulation was also criticized because of a lack of citations and unusual terminology; it has been rephrased to simplify the descriptions. The issue of reduction or increase in compensation or pension benefits has been deleted from this regulation since it is contemplated that these issues are included in determinations as to service connection and pension. Issues relating to emergency officers' retirement benefits (Section 11, Pub. L. 85-857), adjusted compensation (Section 12(b), Pub. L 85-857) and unemployment compensation have been deleted since these particular issues are rarely certified to the Board and their inclusion would only unduly lengthen this regulation. Section 19.4. This regulation has been renumbered as 19.6. This regulation was misconstrued by one group as creating a presumption against disclosure of information contained in appellate decisions and statements of the case. It was felt that the regulation was in violation of the Privacy Act. This regulation was not intended to create a presumption against disclosure of information. To the contrary, it is the policy of the Board of Veterans Appeals to release a full text of all appellate decisions. There are a few cases dealing with medical matters and confidential records for which it would be ill-advised to release such information directly to the appellant. However, the regulation authorizes disclosure of a full-text decision to the designated representative. The only exception is where a close relationship exists between the appellant and representative, e.g., those situations where the representative for the appellant is either the spouse or a parent. The Privacy Act exempts certain medical information from direct disclosure to a requester and allows a third-party physician to discuss such information with the requester. This regulation is revised in order tc clarify the policy of the Board of Veterans Appeals and to add a cross-reference to
the agency's regulation concerning access to records under the Privacy Act. Section 19.5. This regulation is now numbered as 19.4. A 'question was raised as to what is meant by "review or determination" in this regulation. The regulation has been revised to make this clearer. Section 19.8. This regulation has been renumbered as 19.3. Comments were received suggesting a stylistic revision of this regulation for clarity. That revision has been accomplished. The substance of the regulation has not changed. Rule 1. The citation of 38 U.S.C. 4002 was questioned; however, this section authorizes a Board member to make a determination on any proceedings instituted before the Board and any motion in connection therewith. It was suggested that any special procedure which is prescribed should be consistent with title 38, United States Code, and these rules. This language has been added. Rule 2. Objection was taken to the exception for applying the new Rules of Practice on the basis that the standard was too vague. In order to clarify the application of these Rules, January 1, 1980 will be used as the effective date. The January 22, 1964 version of the Rules of Practice, as aihended, will apply to all claims filed before January 1, 1980. Rule 3. It was suggested that private medical evidence and independent medical expert opinions be given more consideration by the Board as they originate from nongovernment medical sources. 38 U.S.C. 4009 specifically categorizes these opinions as advisory. The regulation is merely consistent with that section and points out to the public that the various medical opinions are advisory in nature. The function of the Board as set out in 38 U.S.C. 4004 is to make a decision based on all the evidence of record. It is not contemplated that a private physician should make this decision. Private medical evidence as well as all other evidence of record is considered in the deliberations of the Board. It was suggested that the agency's manuals, circulars and similar administratie issues not approved by the Administrator be promulgated in accordance with the Administrative Procedure Act and the Freedom of Information Act. The subject matter of the Rules of Practice does not relate to the promulgation of manuals or circulars and administrative issues not approved by the Administrator. Furthermore, the purpose of Rule 3 is to stress the fact

hearing transcripts and decisions be added to the rules. In an effort to decrease the processing time of an appeal where a hearing has been held, the Board of Veterans Appeals is no longer preparing hearing transcripts unless specifically requested to do so. See Rule 68(al. The average processing time of an appeal from date of certification to the Board of Veterans Appeals to the date of a final appellate decision is currently 220 days. The current processing time is the result of an unprecedented interest in appealing agency of original jurisdiction determinations and staffing limitations at the Board. Therefore, setting a specific processing time, such as 45 days, is unrealistic. The preparation and review of appellate decisions is monitored under strict work measurement standards. Accordingly, appeals are disposed of as quickly as possible. It was suggested that a comparision of the terms "harmless error," "sufficient cause," and "good cause" be made. See the comments under Rule 91 for a discussion of harmless error and Rule 6 for good cause. The term "sufficient cause," which was used in Rule 75, has been changed to "good cause." Examples of good cause have been included in Rule 6. As is shown by the definitions of "harmless error" and "good cause" in the rules, they have entirely different meanings, are applied in entirely different circumstances, and cannot be compared. The appeals regulations have been renumbered so they fall in a more logical 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 easier to correlate the comments on the proposed regulations with the regulations as they appeared then, we have used the old numbering sequence in addressing those comments and have made cross-references to the new regulation numbers. Section 19.1. A comment was received to the effect that the phrase "to apply all the adjudicative criteria" was unclear. This phrase basically means that the Board has the authority to apply all the adjudicative criteria as contained in the regulations of the agency, instructions of the Administrator and precedent opinions of the General Counsel. Since the Board is already bound by these administrative issues, the p5rase itself is unnecessary. A new paragraph (h) has been added concerning appeals as to jurisdiction. Section 19.2. This regulation is now numbered as 19.5. Comments were received that the role and authority of

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Rule 13. A. comment was made that the waiver of the fees for copying evidence of record during a pending appeal should be mandatory rather than discretionary. Neither statute nor agency regulation prohibits the charging of fees. Thus, any waiver of the fee should be subject to the discretion of the official. It was requested that a rule be incorporated governing the right of an appellant to gain access tor the file and to receive notice regarding documents added to the file. It is felt that the Board's rule with respect to copying information and access to the claims folder by appellants and their representatives sufficiently takes care of this. The laws and regulations governing statements of the case and supplemental statements of the case provide for automatic notification to the appellant and representative anytime pertinent evidence is added to the claims, folder. The only exception would be when evidence is submitted and added to the claims folder by the appellant and/or representative. The Rules of Practice also contain procedures for notifying the appellant or representative anytime an advisory opinion is obtained and affords the appellant or representative a period of time within which to respond. It was also suggested that Rule 13 be expanded to note the existence of the Board's Index to Appellate Decisions and the collection of the Board's appellate decisions. Rule 100 was added to inform the public of the existence of the BVA Index to Appellate Decisions (BVA Index 1-01-1). Rule 14. Questions were raised with respect to perfecting an. appeal. It was requested that the notification of the right to appeal should include information about the next step in the appeal. VA Form 1-4107 is used tor notify claimants of the right to appeal and the time limits. This form describes the appellate procedure and the "next step" of filing a notice of disagreement which initiates the appeal. The,VA has interpreted appeals notificatio2 ta include information concerning Piing a notice of disagreement. We have added,/ a cross-reference to Rule 17 which sets forth what constitutes an appeal. We have also split Rule 14 into two ru!es. Former paragraph (al is still part of Rule 14 while former paragraphs (bl and (cl are now included in Rule 15. Rule 14 has also been amended to show that the agency's notification of appellate rights includes notification cf the right to a hearing and to representation. Rule 15. Comments were received expressing concern over an apparent inconsistency between Rules 14 and 15. In view of the agency's self-imposed

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that these particular issues are not binding upon the: Board. Several commenters requested clarification as to what constitutes a General Counsel precedent opinio. General Counsel opinions. have generally been understood to apply, at a minimum, to opinions which have been published and are available for wide dissemination. Internal General Counsel guidelines governing opinions ensure that 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 examine such a difficult question as to have precedential value to the office of General Counsel are to be selected for digesting or publication. General Counsel Memorandum No. 02-76-3 (1976). Published opinions should be treated as generally applicable precedents. In reference to a comment, the indexing of General Counsel opinions under the provisions of the Freedom of Information Act is not appropriate subject matter for these rules. Rule 4. Suggestions which assisted in clarifying this rule were adopted. Rule 6. Suggestions were received with respect to other examples of good cause. Some of these have been included in the revision Of this regulation. It was also felt that the appellant and representative should be separately notified when a motion has been granted to advance a case on the docket. Inasmuch as any case which is advanced on the docket of the Board of Veterans Appeals is expedited, notifying the appellant and representative that the motion has been granted would simply delay processing of the appeal and would only reach the appellant and representative at most a day or two before the actual decision. However; the regulation has been expanded to require that an appellant and representativebe notified when a motion to advance a case on the docket has been denied. Rule 9. It was suggested that Rule 9 be revised to require a psychiatrist he included on a review panel when a case involves mental disability. The BEard of Veterans Appeals handles many cases involving medical specialties, It is not always possible to include in a section of the Board a physician who is a specialist in the particular disease which is at issue. However, the Board has access to specialists withia the Veterans Administration and in accredited medical schools who can offer expert medical advice. Rule 11. Suggesticns regarding clarification of this rule were made and adopted.

notification rule, prior Rule 15 is being

deleted to avoid any ambiguity. Rule 15 now discusses notification of the right to appeal contested claims and administrative appeals (formerly Rule 14 and (b) (c). Rule 17 It was suggested that Rule 27 be made part of Rule 17 and that there be additional cross-references in this rule as to timeliness and where to file a notice of disagreement. As requested, additional cross-references to-Rules 27 and 29 were added. Rule 19. Stylistic suggestions which clarified this rule were adopted. Rule 20. One group suggested that the statement of the case should include a specific discussion of all of the issues or contentions raised by the appellant, the relevant operative facti, and the legal, medical or other bases upon which the determination of the Regional Office was made. This is already specified by paragraph (b)(3). Other stylistic suggestions were made and adopted. Rule 21. Suggestions were received requesting that the provisions of Rule 23 be incorporated into paragraph (b of this rule. The addition of other material to this rule would make it too lengthy and more difficult to understand; however, a cross-reference has been added. One commenter felt that the veteran should not be presumed to agree with every statement to which a specific objection was not raised. However, 38 U.S.C. 4005(d)(4) states that the appellant will be presumed to be in agreement with any statement of fact contained in the statement of the case to which no exception was taken. Furthermore, the instructions contained on VA Form 1-9, Appeal to Board of Veterans Appeals, notify the appellant of this presumption. A comment was received to the effect that Rule 21(b) does not actually specify what information is necessary in a substantive appeal. Rule 21(b) has set out the more important features of a substantive appeal. Due to the numerous types of appeals itis impossible to be more specific. This rule has been amended to show that-the agency's notification of appellate rights includes notification of the right to a hearing and to representation. Rule 22 Stylistic changes were adopted. Rule 23' The word "argument" has been substituted for the word "allegation" since the former suggests both contentions and reasoning in support of those contentions. A commenter, with respect to' Rule 73, requested that "certification" be

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the situation where a patient remains comatose for a considerable period of time, he/she would be considered incompetent and paragraph (b) would apply. The rule has been.revised to point out that a proper power of attorney or declaration of representation could also accompany the notice of disagreement and substantive appeal. Rule 29. One commenter described a circumstance in which an adverse determination was received by the claimant who then filed a notice of disagreement within 1 year and thereafter arranged for a hearing with a posthearing review. The commenter wanted to know whether the veteran had another 1-year period to file a notice of disagreement. In this situation the notice of disagreement had already been filed within 1 year from the date of the initial determination and the case remained in a pending appellate status throughout the hearing and posthearing review. It is unnecessary to file another notice of disagreement. In other words, hearings on appeals and subsequent reviews by the agency of original jurisdiction would not adversely affect the appellant with respect to the pending appeal. As the result of one suggestion, the phrase "date of mailing" has been defined. Rule 30. It was suggested that the rule inricate where extension requests and additional evidence are to be filed and who makes the determination. Accordingly, this rule is revised and cross-references are added to show this information. With respect to paragraph (b) several comments were received to the effect that the filing of additional evidence and the resultant review and determination be subject to an additional 1-year period within which to file a notice of disagreement. The purpose of paragraph (b) was to stress that the filing of additional evidence should not be used as a substitute for a notice of disagreement or a substantive appeal. Once a determination has been made in the field it is necessary to file a notice of disagreement withift I year. Once that notice of disagreement has been filed, the submission of additional evidence will not affect the appellate status of the initial determination. However, if a notice of disagreement or a substantive appeal is not filed, the submission of additional evidence cannot reactivate the appeal. If an appellant wishes to submit additional evidence and needs additional time within which to do this, the proper procedure is to request an extension. The additional evidence, of course, could serve as a basis for a reopened claim and initiate a new 1-year period within which to appeal. Rule 33. A sentence contained in rules 33 through 35, stating that the Board of Veterans Appeals will make a final decision regarding its appellate jurisdiction, was questioned. The purpose of that statement was to indicate that if a notice of disagreement or substantive appeal is not timely filed or is inadequate only the Board can decide whether it has jurisdiction to review the merits of the case. Since the statement is not necessary for these regulations and may create some confusion it is being deleted here and incorporated into 19.1(b). Questions were raised as to the distinctions between Rules .33 and 34 and Rules 35 and 36. Rules 33 and 34 cover those situations where the agency of original jurisdiction questions the timely filing of a notice of disagreement or a substantive appeal or the adequacy of a notice of disagreement. The usual situation contemplated is when there is disagreement among members of the rating board as to this particular question. These questions should be referred to the Board using the administrative appeal procedure. Rules 33 and 34 were amended for clarification. Rules 35 and 36 are applicable when the claimant protests findings of untimely filing or inadequacy made by the agency of original jurisdiction. Rule 37. A comment was received to the effect that the 30-day period within which to present argument and adequacy questions was not long enough for preparation of response, especially because of any time lost in the mail, weekends and holidays. In view of this comment, the regulation is amended to provide for a period of 60 days. Rule 38. A comment was received suggesting that a cross-reference to 19.5 (now 19.4) be included and that the definition of an administrative appeal be rephrased to show that it is taken by a Veterans Administration official. Accordingly, the rule was amended. Rule 39. Clarification of the phrase "date of mailing" was requested and adopted to show that it refers to the date of the letter of notification to the claimant. Another commenter requested that the 60-day period within which an adjudication officer must file an administrative appeal be extended to 6 months since sometimes an adjudication officer does not learn of a controversial case until 3 or 4 months after the initial determination. It is felt that a 60-day period is sufficient for an adjudication officer to file an administrative appeal inasmuch as the adjudication officer has

defined. Rule 23 now contains that definition. Rule 24. It was requested that this regulation provide for a 30-day notice to the appellant that the appeal will be closed. A notice provision is not considered necessary inasmuch as the appellant is notified of the time limits within which to file a substantive appeal at the time a statement of the case is furnished. The appellant is already on notice that failure to file the substantive appeal will result in closing of the case. , Rule 25. A commenter thought there was an implication that the agency of original jurisdiction could withdraw a notice of disagreement. The regulation was revised to avoid this implication. Rule 26. A comment was received that this regulation is unnecessary. Although the Board of Veterans Appeals does not commonly dismiss an appeal, there are instances of cases being dismissed for failure to state any disagreement in the law or fact as contained in the statement of the case. Another commenter felt that the regulation does not conform to the statute since 38 U.S.C. 4005(d)(5) requires failure to allege a specific area of law or fact. To avoid ambiguity, the regulation has been revised to use the statutory language. It was suggested that the regulation require notification to an appellant of the dismissal action and any further recourse he/she may have after a dismissal action. The policy of the Board of Veterans Appeals is to construe any substantive appeal in a very liberal manner. There are few occasions in which a dismissal action arises and in those situations the appellant receives a dismissal decision signed by the Board members. The only recourse an appellant would have is reconsideration. A cross-reference to the rule on reconsideration has been added. Rule 27. It was suggested that Rule 27 be part of Rule 17. Rule 17 deals specifically with commencement of the appeal. Rule 27 relates to the details of actually filing a notice of disagreement and is appropriately found in this section of the Rules of Practice. "Decision" was changed to the more accurate field term "determination." Another commenter requested that the designation "agency of original jurisdiction" be included in this rule. Inasmuch as the language "the Veterans Administration office from which the claimant received notice of the determination being appealed" is the definition of "agency of original jurisdiction," the additional designation is unnecessary. Rule 28. A question was raised as to what particular paragraph of this rule would apply to a comatose claimant. In

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Federal Register / Vol. 48, No. 34 / Thursday, February 17, 1983 / Rules and Regulations direct contact with rating boards. However, if an adjudication officer learns of a controversial case after the 60-day period he/she can request the Director of the Regional Office to file an administrative appeal within the 6month period. Rule 40. It was requested that a copy of the memorandum for file entitled "Administrative Appeal" which sets forth the issues and basis for the appeal, be furnished the claimant and representative. The rule is revised to require the memorandum or a summary thereof be furnished so that the claimant can better determine whether to join in the appeal. Rule 41. One commenter was concerned that there was no provision ensuring that the claimant did not submit a statement which accidentally triggered a merged administrative appeal. The procedure to prevent accidental merger has been explained and added to this rule. Rule 42. This rule has been rephrased to clarify that the processing time of an unmerged administrative appeal is not chargeable to the claimant for purposes of perfecting an appeal. Rule 43. A suggestion that the rule be clarified to indicate that the initial portion of this rule is a definition of what constitutes a contested claim has been adopted. A comment was received requesting a regulation requiring suspension of all payments pending resolution of a contested claim. It was suggested that no benefits be paid to contesting parties until the end of the 60-day appeal period or until a Board of Veterans Appeals decision, whichever occurs last. The agency's procedures with respect to suspension of benefits in contested claims is not appropriate subject matter for these rules. This rule has been amended to show that the agency's notification of appellate rights includes notification of the right to a hearing and to representation. Rule 45. The rule has been amended to add a definition as to what constitutes "date of mailing." Rule 51. A comment was received suggesting 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), was questioned; however, that is the Board's statutory authority for accepting the designation by pow er of attorney. Rule 52. A comment was received questioning the term "declaration of representation," suggesting that the term be changed to "power pf attorney." However, attorneys practicing before the Veterans Administration are permitted to declare that they are the representative of the appellant without the appellant executing a power of attorney. A power of attorney executed by the appellant is unnecessary. It was also stated that &signed consent from both the appellant and from the attorney ignores the legal practice of accepting the client's retainer as a power of attorney. Cross-references to 38 CFR 14.629(c) and 14.631(c), the agency's regulations concerning a declaration of representation by an attorney, were included. It is not necessary to have both a consent from the appellant and a signed statement from the attorney. A statement from the attorney indicating that he/she is the representative of the appellant is sufficient for a.valid power of attorney. However, this statement alone would limit the attorney's access to only those records and evidence directly relating to the issue on appeal. The combination of both a consent from the appellant and a statement from the attorney affords the attorney full access to all evidence of record pertaining to the appellant in the Veterans Administration. The rule was written in this fashion so that, by. following this procedure, the attorney would have full access to all evidence in the agency and be saved unnecessary administrative delay. It was suggested that the word "attorney" be defined as lawyers or law firms since the rule would cause undue delay and difficulty in the substitution of representatives as a result of staff changes in law school clinics, law firms or other nonrecognized organizations. It was claimed that the rule produces a discriminatory effect by restricting representation by attorneys butnot similarly restricting representation by service organizations. Since this matter is more appropriate for inclusion in. the regulations concerning recognition- of attorneys as representatives and the General Counsel is in the process of revising those regulations to permit attorneys associated with a claimant's attorney to assist in the preparation and representation of a claim or appeal, we have removed paragraph (b] from Rule 52. We have added a sentence, though, stating that a legal intern, law student or. paralegal may assist in an appeal if the appellant furnishes written consent. This consent does not, however, have to name a specific individual. A suggestion was made to rephrase the paragraph dealing with revocation of a power of attorney in Rules 52 and 53 so that they conform with the revocation subparagraph in Rule 51. Rules 52 and 53 are so amended.

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A suggestion was received requesting that information about attorney's fees and expenses be a part of this rule. That information is already contained in. the Notice of Procedural and Appellate Rights, VA Form 1-4107, which is furnished with every notification of an adverse determination. The authority for the Rule, 38 U.S.C. 3404, provides for fee limitations. Rule 53. It was suggested that the phrase in paragraph (a) reading 'The designation should be an individual agent" be changed to read 'The designation must be an individual." It was also suggested that the phrase "representation by an agent" in paragraph Cc) be changed to read "designation and power of attorney." We changed the language to "power of attorney." "Designation" is not necessary since agents are designated by a power of attorney. Rule 54. Paragraph (b) has been simplified, as requested. Rule 55. A comment was received with respect to allowing only one attorney'or agent to be recognized at any one time. For the same reasons as set forth in Rule 52, above, the agency is without authority to formulate a regulation to allow for representation by legal aid societies, law school clinics or law firms. A comment was received that, following the death of a veteran, the survivors should be notified of the claim or appeal. The purpose of the rule is simply to allow an eligible survivor who wishes to continue the veteran's appeal or claim with the Veterans Administration not to have to execute another power of attorney at a time when the loss of the veteran may have produced considerable emotional stress. Another comment was received suggesting that the reasonable period in paragraph (c) be defined as I year. The Board prefers to use the term "reasonable period" since this allows greater flexibility in preserving a particular power of attorney. New paragraph (d) defines "reasonable period." Rule 58. A group suggested that an attorney need not be present when a paralegal or legal intern appears before the Board of Veterans Appeals. The agency has no authority to recognize as a representative a paralegal or a legal intern in the absence of an attorney since 38 U.S.C. chapter 59 specifically delineates those individuals who may act as a representative of the appellant. A paralegal who wishes to represent an appellant and not be under the supervision of a recognized attorney must satisfy the laws and regulations

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relating to procedure. However, any nonprocedural motions filed, such as requests for independent medical expert opinions and others relating to the actual merits of the case, would be subject to a decision of all three members. A cross-reference to Rule 57(c) has been added as a result of this suggestion. Rule 63. It was requested that this rule be amended to state that a representative has a right to a prehearing conference and that it be expanded to include the following as subject matter for the prehearing conference: clarification of evidence to be presented, determinations as to additional evidence and all other matters which would facilitate the conduct of the hearing. While the appellant and representative have a right to a hearing before the Board of Veterans Appeals, there is no right to a prehearing conference. The purpose of the prehearing conference is to facilitate matters prior to the actual hearing. The language of the regulation clearly shows that the purpose of a prehearing conference is basically procedural. A prehearing conference should never be a substitute for a hearing. Rule 64. A commenter requested examples of good cause. The Board has a liberal policy of allowing the record to remain open after a hearing. The rule itself explains the usual good cause situation, i.e., sufficient time to obtain the desired evidence. The use of the term "good cause" insures continuation of the Board's liberal policy. As requested, a cross-reference to Rule 73 has been added. Rule 65. It was suggested that the agency provide subpoena power over Veterans Administration personnel upon a reasonable showing of relevance and materiality. It was felt that permitting the Board to exercise subpoena power over agency personnel upon a showing of good cause would prevent abuses in the agency and greatly improve the overall fairness of the proceedings. The Board of Veterans Appeals has no authority to subpoena employees of the Veterans Administration. The Board usually reviews evidence prepared by agency employees. Should there be some question as to the behavior or action of a VA employee, the appellant and/or representative could request that the Board conduct a field or Central Office investigation to review the matter. This is a sufficient remedy if such a situation should arise. The use of the citation, 38 U.S.C. 4002, was questioned. However, this is the Board's basic statutory authority for the appellate hearing program. Rule 67. A comment was received questioning whether there as a difference between a simultaneously contested claim and a contested claim. There is no difference. 38 U.S.C. 4005A refers to these claims as "simultaneously contested." To avoid any confusion, Rules 43 and 67 are revised accordingly. Rule 68. A commenter felt that a tape recording of a Board hearing would not be sufficient if the appeal were subject to court review. The Board of Veterans Appeals, as required by this rule, will keep a file of all hearing tapes. In the event there is any court review of the Board proceedings, a transcript will automatically be prepared without a request from the appellant and representative. Another commenter suggested that the regulation require notice to the appellant and representative prior to the hearing that a copy of the transcript could be obtained without cost. The rule, itself, is considered adequate notice to the public. Clarification was requested as to how an informal hearing prior to filing of the notice of disagreement should be recorded. Any informal hearing held prior to the filing of a notice of disagreement is not a hearing on appeal and is not subject to these rules. M21-1. paragraph 18.18, contains the appropriate hearing guidelines for the Department of Veterans Benefits. Rule 72. It was suggested that Rules 72 and 30(b) be combined. Although Rule 30(b) deals specifically with the time limits within which to file an appeal, a cross-reference to Rule 30(b) was added. Rule 73. A question was posed as to the procedure for and significance of "certification." In view of this, Rule 23 has been amended to include a definition of "certification." A commenter stated that the agency of original jurisdiction should notify the appellant that the evidence submitted does not have a direct bearing on the appellate issue. The agency of original jurisdiction normally forwards to the Board any evidence directly relating to the issue. The purpose of the Rule is to prevent an automatic transfer to the Board of evidence unrelated to the appeal. Because the agency of original jurisdiction may develop its own instructions for processing this type of evidence, formal notification rules are unnecessary. Rule 74. The heading of this regulation was criticized; therefoie, it has been changed to read "Consideration of additional evidence received by the Board of Veterans Appeals." Although one suggester recommended that the place for filing additional evidence be

with respect to agent status. A comment was received that many veterans go entirely unrepresented. Our records show, however, that over 90 percent of the appellants are represented. With respect to any limitation on the freedom of choosing a representative, the veteran or appellant has the freedom to choose either a representative of a service organization', an attorney or an individual who can qualify as an agent. It is felt that there is no practical restriction upon the choice of the representative an appellant may desire. Some groups requested that the status of legal intern be extended to a paralegal. Because of the confusion with respect to legal interns and paralegals, the rule is revised to permit legal interns, law students, and paralegals to assist in the representation of appellants. Rule 57. A request was made to add a provision allowing appellants to ask questions of all witnesses present at the hearing. This provision has been added. Rule 58. A revision to show that not only argument but testimony may be presented at a hearing was requested and adopted: Rule 59. Common examples of good cause have been added to paragraph (c), as requested. Rule 60. Comments suggesting that the rule specify that the place of the hearing is at the option of the appellant, the functions of field personnel be clarified, and the applicability of Rules 61 through 67 to paragraph (c) hearings were essentially adopted. However, Rules 61 and 63 were excepted since they can. only be applicable to the Board of Veterans Appeals. A cross-reference was added to show the statutory citation for decisions with dissenting opinions. A commenter requested that more travel Boards be held in the field. The frequency of travel Board hearings is limited by the availability of travel funds and personnel. Travel Board planning is not proper regulatory subject matter. We have clarified Rule 60 to show the exceptions where a hearing panel does not participate in the final decision. Rule 61. It was asked whether three individuals are needed to conduct a hearing in the field. This particular rule applies only to hearings before Board members of the Board of Veterans Appeals. The rule is rephrased for greater clarity. A sentence was added concerning the procedure to be followed when a member of the hearing panel cannot participate in the final decision. Rule 62. A question was raised as to the role of the other section members in procedural questions. The chairman of the panel has always decided questions

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Federal Register / Vol. 48, No. 34 / Thursday, February 17, 1983 / Rules and Regulations specified, it is difficult to specify the
particular place since appellants and representatives may submit additional evidence either in the field or at Central Office. Furthermore, Rules 73 and 74 cover all situations where such evidence may be filed. It was suggested that the Board review uncertified, new issues of law or fact when waiver of Regional Office review is requested. The waiver of a supplemental statement of the case under this regulation is applicable only to those issues which have been properly prepared for submission to the Board of Veterans Appeals. The Board has no jurisdiction to review issues which have not been considered by the agency of original jurisdiction. As a policy matter, the Board assumes jurisdiction only to allow those issues disposed of in an agency of original jurisdiction determination. The status of Board of Veterans Appeals Bulletip 017, paragraph 2(b), was questioned. This Bulletin was rescinded in November 1976 and replaced by MI-1, Field Appellate Procedures, paragraph 11.04(a). A supplemental statement of the case need not be prepared if, prior to forwarding the records to the Board, additional evidence is received of which the veteran is aware. Under this circumstance, a letter to the veteran would be sufficient. Rule 75. As the result of a comment, a cross-reference to Rule 6 has been added. Rule 76. A commenter requested that the fact that an appellant does not have a vested right to an expert medical opinion be clarified. The rules are very clear that the obtaining of any opinion by the Board of Veterans Appeals is discretionary but at the same time an appellant or representative may file a motion requesting such an opinion. A question was raised as to the appropriateness of the citation, 38 U.S.C. 4004(c), relating to professional opinions. The purpose of the inclusion of this citation was to point out that these opinions are not binding upon the Board of Veterans Appeals and are strictly advisory. However, the cross-reference to Rule 3 is sufficient to show that these opinions are advisory. The citation to 38 U.S.C. 4004(c) is changed to 38 U.S.C.

6967
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4009(a).
Rule 77. It was suggested that this rule specify that the appellant know the identity of the independent medical expert, have the opportunity to comment on the expert's findings and be able to submit written questions to the IME to be answered under oath. The purpose of the independent medical opinion program is to allow a specialist, who is not an employee of the Veterans Administration, to review the

medical evidence of record and provide an opinion from an unbiased point of view. The procedures used by the Board of Veterans Appeals in obtaining such an opinion do not provide for advance identification of a particular specialist. The Board does not know the identity of the specialist until the opinion is received from the medical school. After the opinion reaches the Board, a copy is submitted to the appellant and/or representative, thereby automatically disclosing the identity of the expert. Rule 98 covers those situations wherein the identity of the independent medical expert is requested. The rule does specify that, upon receipt of the opinion, it will be referred to the appellant and representative for comments. With respect to submitting written questions to the specialist to be answered under oath, it is VA policy not to allow cross-examination. Furthermore, the specialist is not a witness but only provides the Board Members with a reasoned opinion clarifying a controversial or complex medical issue. The appellant in requesting an opinion can always suggest questions to be presented to the expert. Rule 78. A comment was received requesting a definition of "good cause." The purpose of using the phrase "good cause" was to honor a request for a medical opinion any time a valid reason is shown by the appellant or representative. To clarify the rule, an example of "good cause" is provided. Rule 79. It was believed that 38 U.S.C. 3301 did not apply to this rule. This section of title 38, United States Code, provides that information from medical records can be referred to an independent medical expert; however, disclosure of this information may not be made to the appellant if such information is injurious to the physical and mental health of the appellant. It should be noted, though, that 38 CFR 1.577(d) allows release of such information to a physician or other professional person selected by the appellant, or the appellant may discuss the matter with a VA physician who can make a decision regarding release of the informati6n to the appellant. It was recommended that a provision be made for the appellant and representative to submit questions through the Board's hearing panel to the independent medical expert. It has been a practice in the past that, when an appellant or representative makes a request for an independent medical opinion, he/she may suggest questions for the specialist. The Board makes these questions a part of the record at the time of referral to

the medical Institution. Some felt that

the 30-day response period was inadequate when representatives are located only in the field. Accordingly, the rule is amended to allow for a 60day response time. Rule 81. A commenter noted that the exceptions set forth in 38 U.S.C. 4003(a) are not set forth in-paragraph (a) of this rule. The exceptions to finality, i.e., obvious error in the recordor additional official information from the service department are covered in Rule 85. A cross-reference has been added. Another comment was received stating that no provision was made for a case in which a decision, made by an expanded panel, is not unanimous and the Chairman agrees with the minority. Voting panels are comprised of three, six or twelve Board members. If the Chairman agrees with the minority he/ she may expand the panel to six or a maximum of twelve members. The majority vote would prevail. Cross-references have also been added to Rules 10(d), 60 and 61. Rule 82. Comments which suggested modification of the text to afford greater clarity were adopted. Another suggestion was made to require a supplemental statement of the case after completing action on a remand curing a procedural defect. Since, for instance, correction of the proper power of attorney or clarification of a request for hearing may require only correspondence from the agency of original jurisdiction, a supplemental statement of the case is not always required. Rule 83. A comment was received suggesting that a Board member should disqualify himself/herself not only where there are circumstances which might give the impression of bias but also for any other reason. The basis for disqualification in this rule is conflict of interest which is adequately described in paragraph (a). It was requested that the appellant be given the right to challenge or question Board members' qualifications. They are appointed by the Administration with the approval of the President. The appellate decision is not the proper vehicle for challenging a Board member. The purpose of this rule is to avoid conflict of interest. A recommendation was made to require that a psychiatrist be included on the panel in cases involving mental disability. Adoption of this recommendation is not feasible since the Board handles several thousand such appeals every year. See the comment for Rule 9. Rule 84. A comment was adopted which suggested that the phrases

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29, 39 and 45 be added. However, those rules do not relate to reconsideration. The use of a heading entitled "Time limits" is not appropriate for reconsideration since there is no specific time limit. Another commenter pointed out that the filing of a brief for reconsideration is unrelated to a hearing request. This language has been inserted in Rule 86 which covers application for reconsideration. Rule 89 has been retitled "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" is deleted and "motion" -substituted. Another comment was received suggesting that the appellant/ representative be notified when a motion for reconsideration is granted or denied. Rule 86 was revised to clarify the processing of requests for reconsideration. See the comments under that rule. Rule 91. It was suggested that the term "harmless error" be defined and compared with the terms "sufficient cause" and "good cause." This rule adequately defines the concept of harmless error. For further clarification, examples are typographical errors, misspellings, and other minor errors which do not affect the substance of the Board's decision and its disposition. The Board has a policy of issuing corrected pages when harmless error is found. See the general comments preceding this rule-by-rule analysis for a discussion of the comparison with the other terms. Rule 94. A comment was received requesting that the rule be amended to show that a claim will be reopened if new and material evidence is submitted. -This rule requires a determination to be made when new evidence is submitted If the evidence is found to be new and material, the claim is considered reopened. Rule 95. It was suggested that the rule be clarified to show the Board may or may not complete its action. By using "may," it is already implied that completion of the appeal is at the Board's discretion. Cross-references to Rules 55 and 96 were requested and added. One commenter asked that the rule require notification to the survivors of a pending appeal. The Board usually notifies immediate relatives that they may wish to file claims for accrued benefits.. However, failure to notify survivors that they may file such claims would not affect-the disposition of the pending appeal and is not deemed appropriate for incorporation in these rules. Rule 96. It was requested that language referring to Rule 95 be incorporated in this Rule. This Rule applies to any prior decisions during the veteran's lifetime and not just to those pending at the time of the veteran's death. Rule 9. Several commenters suggested that BVA decisions be considered as precedent. 38 U.S.C. 4004(c) enumerates three categories of pronouncements which are binding on the Board. Prior Board decisions are not included. In the absence of a specific declaration by Congress that it intends the Board to rely on its own decisions, it would be inappropriate for us to adopt a rule to that effect. We have revised the rule to stress the need for consistency. Prior decisions are given considerable weight in a case when the factual backgrounds reasonably relate to the current question at issue. It was also suggested that 19.1 or 19.103 indicate that Board decisions are not precedent. A cross-reference has been added to Rule 3 ( 19.103). Rule 98. A stylistic change was suggested and adopted. Rule 99. It was suggested that this proposed Rule be deleted entirely. The comment Was made that any request to amend an appellate decision could be interpreted as an attack on the functions of the Board of Veterans Appeals. It was also suggested that the Board would be seeking to insulate its decisions from correction under the Privacy Act. Nothing in the proposed rule should be read as changing or modifying the amendment provisions of the Privacy Act. Indeed, at the outset Rule 99 specifies that a request to amend a Board decision under the Privacy Act may be entertained. It should be emphasized that a request for correction of erroneous factual information in a BVA decision will be considered in association with all relevant evidence. The language of the rule is intended to show that a final adjudicatory decision of the Board is not properly the subject of a Privacy Act amendment request. In essence, the provisions for amendment of records under the Privacy Act are not intended to permit a collateral attack upon a Board decision. (OMB Privacy Act Implementation Guidelines and Responsibilities, 40 FR 28958 (1975).) Where there are matters in dispute that involved the adjudicatory functions of the Board, the challenge should be made using the procedures established under Rules 85 through 90. In this respect, it is pointed out that amendment of a record under the Privacy Act could also be the subject of an argument for reconsideration.

"administrative action" in 19.2(b) (now 19.5(b)] and "administrative allowance" in Rule 84 be reconciled. The action is designated an "administrative allowance" since this is in common usage among representatives and Board members. Another commenter suggested that the rule allow an appellant and/or representative to request an administrative allowance. This action can only be invoked by the Board itself when no error is found following a request for reconsideration or a review of a final determination by an agency of original jurisdiction. A question was raised as to whether a specific number of members is required in order to recommend an administrative allowance. A specific number is not required. This is a discretionary action by the Chairman or Vice Chairman on recommendations submitted to them by Board members. Rule 85. One suggester believed that reconsideration should be accorded when evidence such as new scientific or medical evidence is discovered. While such evidence would provide a new factual basis for reopening the claim, it would not prove error in the prior decision and entitle the appellant to receive retroactive benefits. The Board of Veterans Appeals decision would remain valid based on then-known scientific or medical knowledge. It was also requested that this rule be clarified to indicate that the agency of original jurisdiction need not furnish a statement of the case on the issue of obvious error of fact or law. Reconsideration reviews can be conducted only by the Board of Veterans Appeals. The agency of original jurisdiction has no authority to do so. Comments were received and adopted specifying that: (1) Reconsideration be accorded for corrected official service department records or upon the discovery of new and material evidence from the service department; (2) reconsideration may be requested at any time; and (3) reconsideration may also be requested by the appellant. Rule 86. There appeared to be some confusion in the comments as to the exact processing of a reconsideration request. This rule is revised to emphasize the two-stage process: (1) Motion disposition and (2) actual review of the merits by the Board members. Rule 87. This rule has been rephrased to specify how additional evidence would be treated on reconsideration. Rule 88. This rule has been clarified, as suggested. Rule 89. A comment was received suggesting that this rule be titled "Time limit for filing of a request." It was also requested that cross-references to Rules

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Federal Register / Vol. 48, No. 34 / Thursday, February' 17, 1983 1 Rules and-Regulations We believe that the objections received indicate that the proposed rule, as written, may be confusing. Hence editorial changes have been made for the purpose of clarification. Rule 100. Pursuant to a comment with respect to Rule 13, this rule was added to inform the public of the existence of the BVA Index to Appellate Decisions (BVA Index 1-01-1). The Administrator hereby certifies that these final rules and regulations will not, if promulgated, have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (RFA], 5 U.S.C. 601-612, Pursuant to 5 U.S.C. 605(b), these final rules and regulations therefore are exempt from the initial and final regulatory flexibility analyses requirements of sections 603 and 604. The reason for this certification is that the rules and regulations will regulate only. individual Veterans Administration benefit recipients. They will have no significant direct impact on small entities (i.e., small businesses, smal private and nonprofit organizations, and small governmental jurisdictions). The agency has also determined that these rules and regulations are nonmajor in accordance with Executive Order 12291, Federal Regulation. There is no Catalog of Federal Domestic Assistance number involved. The information collection requirements contained in these regulations ( 19.121, 19.123, 19.146 and 19.151) have been approved by the Office of Management and Budget under the provisions of the Paperwork Reduction Act of 1980 (Pub. L. No. 96511) and have been assigned OMB control 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 and are set forth below. List of Sdbjects in 38 CFR Part 19 Administrative practice and procedure, Claims, Veterans. Approved: February 4,1983. By direction of the Administrator. Everett Alverez, Jr.,
DeputyAdministrator.
Sec.

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19.3 Appellate jurisdiction of determinations of the Department of Medicine and Surgery. 19.4 Restriction as to change in payments pending determination of administrative appeals. 19.5 Delegation of authority to Chairman and Vice Chairman, Board of Veterans Appeals. 19.6 Disclosure of information. Subpart B-Appeals-Rules of Practice General 19.101 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. Docketing 19.105 Rule 5; Docketing of appeals. 19.106 Rule 6; Advance on the docket. The Board 19.107. 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 Rights 19.114 Rule 14; Notification of right to appeal. 19.115 Rule 15; Notification of right to appeal in administrative appeals and contested claims. 19.116 Rule 16; Decision notification. Commencement of Appeal 19.117 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 a substantive appeal. 19.122 Rule 22; Supplemental statement of the 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 original jurisdiction. 19.134 Rule 34; Adequacy of notice of disagreement questioned within the agency of original jurisdiction. 19.135 Rule 35; Untimely filing of appeal protested by claimant. 19.136 Rule 36; Inadequacy of the notice of disagreement.

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 Claims 19.143 Rule 43; Notification of right to appeal in simultaneously contested claims. 19.144 Rule 44: Who can file an appeal in contested claims. 19.145 Rule 45; Time limits for filing in contested claims. 19.146 Rule 46; Notice to contesting parties on receipt of notice of disagreement. 19.147 Rule 47; Notice of substance of appeal to other contesting parties. 19.148 Rule 48; Extension of time for filing in contested claims. 19.149 Rule 49; Notices to last addresses or record In contested claims. Representation 19.150 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. Hearings 19.157 Rule 57; General 19.158 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. Evidence 19.172 Rule 72; Submission of additional evidence. 19.173 Rule 73; Consideration of additional evidence received by the agency of original jurisdiction. 19.174 Rule 74; Consideration of additional evidence received by the Board of Veterans Appeals. Action by the Board 19.175 Rule 75; Order of consideration. 19.176 Rule 76; Medical opinions.

Title 38, CFR, Part 19 is revised to read as follows: PART 19-BOARD OF VETERANS APPEALS
Subpart A-Appeals-General Sec. 19.1 Appellate jurisdiction. 19.2 Subject matter of appeals.

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review a particular issue. This includes questions relating to the timely filing and adequacy of the notice of disagreement and the substantive appeal. Only the Board of Veterans Appeals will make final decisions with respect to its jurisdiction. (38 U.S.C.
19.3 Appellate jurisdiction of determinations of the Department of Medicine and Surgery. (a) The Board's appellate'jurisdiction extends to questions of eligibility for hospitalization, outpatient treatment, and nursing home and domiciliary care, for devices such as prostheses, canes, wheelchairs, back braces, orthopedic shoes, and similar appliances, for automobile and automobile adaptive equipment assistance, and for other benefits administered by the Department of Medicine and Surgery. (b) Medical determinations, such as determinations of the need for and appropriateness of specific types of medical care and treatment for an individual, are not adjudicative matters and are beyond the Board's jurisdiction. Typical examples of these issues are whether a particular drug should be prescribed, whether a specific type of physiotherapy should be ordered, and similar judgmental treatment decisions with which an attending physician may be faced. (38 U.S.C. 4004(a)) 19.4 Restriction as to change In payments pending determination of administrative appeals. If an administrative appeal is taken from a review or determination by the agency of original jurisdiction pursuant to Rules 38 through 42 ( 19.138-19.142), that review or determination cannot effect any change in payments until after a decision is made by the Board of Veterans Appeals. (38 U.S.C. 4006) 19.5 Delegation of authority to Chairman and Vice Chairman, Board of Veterans Appeals. The Chairman and/or Vice Chairman have authority delegated by the Administrator to: (a) Approve the assumption of appellate jurisdiction of an adjudicative determination which has not become final in order to grant a favorable benefit. (b) Approve an administrative allowance on an adjudicative determination which has become final by appellate decision or failure to timely appeal. (c) Order Central Office investigations of matters before the Board. (38 U.S.C. 210(b), 212(a)) 19.6 Disclosure of Information.

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 is accorded. 19.186 Rule 86; Filing and disposition of a motion 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 of the agency of original jurisdiction affirmed on appeal. 19.194 Rule 94; New claim after appellate decision. 19.195 Rule 95; Death of appellant during pendency of appeal. 19.196 Rule 96; Claim for death benefits by survivor-prior unfavorable decision. 19.197 Rule 97; Nonprecedential nature of board decisions. Privacy Act 19.198 Rule 98; Privacy Act request-appeal pending. 19.199 Rule 99; Amendment of appellate decision. 19.200 Rule 100; Index to appellate decisions. Subpart A-Appeals-General 19.1 Appellate jurisdiction. (a) General All questions on claims involving benefits under the laws administered by the Veterans Administration are subject to review on appeal to the Administrator of Veterans Affairs, decisions in such cases to be made by the Board of Veterans Appeals. In its decisions, the Board is bound by the regulations of the Veterans Administration, instructions of the Administrator and precedent opinions of the General Counsel. The Board may exercise the same authority as the department having original jurisdictional responsibility. (38 U.S.C.

4004]
19.2 Subject matter of appeals. The Board's appellate jurisdiction extends to all questions on claims involving benefits under the laws administered by the Veterans Administration. (38 U.S.C. 4004(a)) More common examples of the issues over which the Board has jurisdiction are as follows: Entitlement to and benefits resulting from service-connected disability or death. (38 U.S.C. ch. 11) Dependency and indemnity compensation for service-connected death including benefits in certain cases of inservice or service-connected deaths (38 U.S.C. 412] and certification and entitlement to death gratuity. (38 U.S.C. 423) Entitlement to nonservice-connected disability pension, service pension and death pension. (38 U.S.C. ch. 15) Training and rehabilitation for veterans with service-connected disabilities. (38 U.S.C.
ch. 31)

Post-Vietnam Era Veterans' Educational Assistance. (38 U.S.C. ch. 32) Veterans' Educational Assistance. (38 U.S.C. ch. 34) Survivors' and Dependents' Educational Assistance. (38 U.S.C. ch. 35) Matters arising under National Service Life Insurance and U.S. Government Life Insurance. (38 U.S.C. ch. 19) Payment or reimbursement for unauthorized 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. (38 U.S.C. 351) Basic eligibility for home, condominium and mobile home loans as well as waiver of payment of loan guaranty indebtedness. (38 U.S.C. ch. 37 and 3102) Waiver or recovery of overpayments. (38
U.S.C. 3102)

Forfeiture of rights, claims or benefits for fraud, treason, or subversive activities. (38
U.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)

4004)

(b) Appeals as to jurisdiction.All

claimants have the right to appeal a determination made by the agency of

original jurisdiction that the Board does not have jurisdictional authority to

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 an estate of an incompetent institutionalized veteran. (38 U.S.C. 3203)

It is the policy of the Board of

Veterans Appeals for the full text of appellate decisions and statements of the case to be disclosed to appellants. In those situations where disclosing certain information directly to the appellant would not be in conformance with 38 U.S.C. 3301, that information will be

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Federal Register / Vol. 48, No. 34 / Thursday, February 17, 1983 / Rules and Regulations removed from the decision or statement of the case and the remaining text will be furnished the appellant. A full-text appellate decision or statement of the case, however, will be disclosed to the designated representative unless the relationship between the appellant and representative is such (for example, a parent or spouse) that disclosure to the representative would be as harmful as if made to the appellant. (38 U.S.C. 4005(d)(2)) Cross-Reference: Access to records. See 1.577(d). Subpart B-Appeals-Rules of Practice General
19.101 Rule 1; Authority, scope of rules, and construction. Armed Forces Institute of Pathology, and independent medical experts obtained pursuant to Rules 76 and 77 ( 19.176 and 19.177) are only advisory in nature. (38 U.S.C. 4004(c), 4009) Cross-Reference: Nonprecedential nature of 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 a claim involving an insurance contract (38 U.S.C. 784) (b) Reconsideration by the Board may be accorded under Rules 85 through 90 ( 19.185 through 19.190). (38 U.S.C.

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19.108 Rule 8; Establishment of the Board. The Board of Veterans Appeals is established by authority of and functions pursuant to 38 U.S.C. chapter 71. 19.109 Rule 9; Composition of the Board. The Board shall consist of a Chairman, Vice Chairman, Members, and necessary professional, administrative, clerical and stenographic personnel. (38 U.S.C. 4001(a))

19.110 Rule 10; Appointment,

assignment, and rotation of members. (a) Appointment. Members of the Board (including the Chairman and Vice Chairman) shall be appointed by the Administrator with the approval of the President of the United States. (38 U.S.C.

4003)
Docketing 19.105 Rule 5; Docketing of appeals. (a) In orderreceived.Applications for review on appeal shall be docketed in the order in which they are received. (38

(a) Authority. Pursuant to the authority vested in the Administrator of Veterans Affairs (38 U.S.C. 210(c)(1)) there are hereby issued revised Rules of Practice which govern proceedings in appeals to the Board of Veterans Appeals. (b) Scope. These rules govern the practices and procedures for processing appeals for the Board of Veterans Appeals. Where in any instance there is no applicable rule or procedure, the presiding Board member before whom the matter is pending may prescribe a procedure which is consistent with the provisions of title 38, United States Code, and these rules. (38 U.S.C. 4002) (c) Construction.In accordance with the agency's policy of providing assistance to the appellant, these rules shall be construed to secure a just and speedy decision in every appeal. (38 U.S.C. 210) Cross-References: Reasonable doubt See 3.102. Due process-procedural and appellate rights with regard to disability and death benefits and related relief. See 3.103. 19.102 Rule 2; Effective date. These rules are effective as of January 1, 1980. They govern all proceedings in cases 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 the laws and regulations of the Veterans Administration, decisions and instructions of the Administrator of Veterans Affairs, and precedent opinions of the General Counsel. (38 U.S.C. 40o4{c)) (b) Manuals,circularsand opinions. In its appellate decisions, the Board is not bound by agency manuals, circulars and similar administrative issues not approved by the Administrator. Opinions of the Chief Medical Director,

4001(b))
(b) Assgnment. The Chairman may divide the Board into sections of three members and assign the members of the Board thereto. (38 U.S.C. 4002) (c) Rotation. The Chairman may from time to time rotate the members of the sections. (38 U.S.C. 4002) (d) Vacancy or absence. If, as a result of a vacancy, absence, or inability of an assigned member to serve, a section of the Board does not have a full complement of members, the Chairman may assign other members or direct the Section to proceed without any additional assignment of members. (38 U.S.C. 4002)

U.S.C. 4007)
(b) Remanded cases. Cases returned to the Board following action pursuant to a remand shall assume their original places 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 good cause may be terminal illness, advanced age, extreme financial hardship, etc. A motion for this purpose must be filed with the Chairman, Board of Veterans Appeals, and specify the urgent nature of the cause. Interpretation of law of general application affecting other claims may afford a basis for advancing a case on the docket (38 U.S.C. 4007) (b) If a motion to advance a case on the docket is not granted, the appellant and representative will be immediately notified. If the motion to advance a case on the docket is granted it will be noted in the decision when rendered. (38 U.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) Businesshours. The Board shall be open during business hours on all days except Saturday, Sunday and legal holidays. Business hours are from 8:00 a.m. to 4:30 p.m. (c) Mailing address.Mail to the Board should be addressed to: Chairman (01), Board of Veterans Appeals, 810 Vermont Avenue, NW., Washington. D.C. 20420.

19.111 Rule 11; Function of the Board.

The principal functions of the Board are to make determinations of appellate jurisdiction, consider all applications on appeal properly before it, conduct hearings on appeal, evaluate the evidence of record and enter decisions in writing on the questions presented on appeal. (38 U.S.C. 4002, 4004) 19.112 Rule 12;, Jurisdiction. (a) Statutory.The Board's jurisdiction extends to all questions on claims involving benefits under the laws administered by the Veterans Administration. (38 U.S.C. 4004(a)) (b) Delegatedauthority.The Board may assume jurisdiction of an unappealed issue on its own motion in a case 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 exhibit certified to the Board shall be taken from the Board except as authorized by the Chairman or except as may be necessary to furnish copies or to

(38 U.S.C. 4001(a))

Cross-Reference: Legal holidays. See Rule 32, 19.132.

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Commencement of Appeal 19.117 Rule 17; What constitutes an appeal. An appeal consistsof a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. (38 U.S.C. 4005) Cross-References: Notice of disagreement. See Rule 18, 19.118. Substantive appeal. See Rule 23, 19.123. Place of filing, notice of disagreement and substantive appeal. See Rule 27, 19.127. Time limit for filing. See Rule 29, 19.129. 19.118 Rule 18; Notice of disagreement A written communication from a claimant or the representative expressing dissatisfaction or disagreement with an adjudicative determination of an agency of original jurisdiction (the Veterans Administration regional office, medical center or clinic which notified the claimant of the action taken) will constitute a notice of disagreement. The notice of disagreement should be in terms which can be reasonably construed as a desire for review of that determination. It need not be expressed in any special wording. (38 U.S.C. 4005) 19.119 Rule 19; Action by agency of original jurisdiction on notice of disagreement. (a) Preliminaryaction. When a notice of disagreement is timely filed, the agency of original jurisdiction may develop and review the claim again. (38 U.S.C. 4005(d)(1)) (b) Statement of the case. If no preliminary action is required or when it is completed, the agency of original jurisdiction will prepare a statement of the case pursuant to Rule 20 ( 19.120), unless the issue or issues are resolved by granting the benefits sought in the appeal or the notice of disagreement is withdrawn by the appellant or the representative. (38 U.S.C. 4005(d)(1)) Cross-References: Place of filing, notice of disagreement and substantive appeal. See Rule 27, 19.127. Time limit for filing. See Rule 29, 19.129. 19.120 Rule 20; Statement of the case. (a) Purpose.The statement of the case should provide the appellant notice of those facts and applicable laws and regulations upon which the agency of original jurisdiction based its determination of the Issue or Issues. It should be complete enough to allow the appellant to present written and/or oral arguments before the Board of Veterans Appeals. (38 U.S.C. 4005(d)(1)) (b) Contents.A statement of the case shall contain:

transmit copies for other official purposes. (38 U.S.C. 3301) (b) Release of information. Information requested from records, including copies of such records in the custody of the Board of Veterans Appeals, will be furnished to the extent permitted by law and Veterans Administration regulations. (5 U.S.C. 552, 552a; 38 U.S.C. 3301) (c) Fees.The fees to be charged and collected for the release of information and for any copies will be in accordance with 1.526, 1.555, and 1.577 of this title. (d) Waiver of fees. When information is requested from records certified to and in the custody of the Board, the required fee may be waived if such information is requested in connection with a pending appeal. (e) Review of records. Information in the records may be reviewed by agency employees on a "need to know" basis. (5 U.S.C. 552a(b)(1)) Cross-References: Release of information from Veterans Administration claimant records. See 1.500-1.527. Release of information from Veterans Administration records other than claimant records: See 1.550-1.559. Safeguarding personal information in Veterans Administration records. See 1.575-1.584. Notification of Appellate Rights

(1) A summary of the evidence in the case relating to the issue or issues with which the appellant or representative has expressed disagreement. (2) A summary of the applicable law and regulations, with appropriate citations. (3) The determination of the agency of original jurisdiction on each issue and the reasons for each such determination with respect to which disagreement has been expressed. (38 U.S.C. 4005(d)(1))
19.121 Rule 21; Furnishing the statement of the case and Instructions for filing a substantive appeal.

19.114 Rule 14; Notification of right to

appeal. The claimant and the representative, if any, will be informed of the right to initiate an appeal and the time within which to do so, the right to a personal hearing and the right to representation. This information will be included in each notification of a determination of entitlement or nonentitlement to Veterans Administration benefits by the agency of original jurisdiction. (38 U.S.C. 4005(a)) Cross-Reference: What constitutes an appeal. See Rule 17, 19.117.

19.115 Notification of right to appeal In administrative appeals and contested claims. (a) Administrative appeals.Claimants will be notified of administrative appeals pursuant to Rule 40 ( 19.140). (38 U.S.C. 4008)
(b) Contestedclaims. Contesting claimants will be notified of appellate rights pursuant to Rule 43 ( 19.143). (38 U.S.C. 4005A(a)) 19.116 Rule 16; Decision notification. After a decision has been rendered by the Board, all parties to the appeal and the representatives, if any, will be notified of the results. (38 U.S.C. 4004(a), (d))

(a) Copies of statement of the case. The statement of the case will be forwarded to the appellant at the latest address of record and a separate copy provided to the representative (if any). (38 U.S.C. 4005(d)(3)) (b) Information on filing substantive appeal.With the statement of the case, the appellanit and the representative will be furnished information on the right and time limit to file a substantive appeal, as well as hearing and representation rights, and VA Form 1-9, Appeal to Board of Veterans Appeals. Instructions to the appellant state that: (1) The benefits sought must be clearly identified. (2) The substantive appeal should set out specific arguments as to error of fact or law, related to the issues. (3] The appellant will be presumed to be in agreement with any statement of fact contained in the statement of the case to which no exception is taken. (4) The agency of original jurisdiction may close the appeal for failure to respond to the statement of the case. (5) The Board of Veterans Appeals will base its decision on the evidence and argument of record, and will not be limited to that cited in the statement of the case. (Approved by the Office of Management and Budget under OMB control number 2900-0085) (38 U.S.C. 4005(d)) Cross-Reference: Substantive appeal. See Rule 23, 19.123.
19.122 Rule 22; Supplemental statement of the case.

A supplemental statement of the case, so identified, will be furnished to the appellant and representative, if any, when additional pertinent evidence is received, when a material defect is discovered, or when, for any other reasons, the original statement is inadequate under the requirements of Rule 20 ( 19.120). A supplemental statement of the case will also be issued following development pursuant to a remand of the Board. A supplemental

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Federal Reister / Vol. 48, No. 34 / Thursday, February 17, 1983 / Rules and Regulations statement of the case is not required following a hearing on appeal before field personnel when no additional pertinent evidence is received, when a material defect is not discovered or when the original statement is adequate under the requirements of Rule 20 1M.12). (38 U.S.C. 4005(d)) N Cross-References Consideration of additional evidence received by the Board of Veterans Appeals. See Rule 74, 19.174. Remand for further development See Rule 82, 19.182
19.123 Rule 23; Substantive appeal.

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19.125 Rule 25; WithdrawaL

(a) Notice of disagreement A notice of disagreement may be withdrawn in writing before a timely substantive appeal is filed. (38 U.S.C. 4005(d)(1)) (b) Substantive appeal.A substantive appeal may be withdrawn in writing at any time before the Board enters a decision except where withdrawal would be detrimental to the appellant. (38,U.S.C. 4005(d)(3)) (c) Who may withdraw. Withdrawal may be by the appellant or the authorized representative (person or organization) except that a representative may not withdraw either a notice of disagreement or substantive appeal filed by the appellant personally. The agency of original jurisdiction may not withdraw a notice of disagreement or a substantive appeal after filing of either or both. (38 U.S.C. 4005(b)[2) Cross-References: Substantive appeal. See Rule 23, 19.123. Timely filing of appeal questioned within the agency of original jurisdiction. See Rule 33, 19.133. Untimely filing of appeal protested by claimant. See Rule 35, 19.135. Adequacy of the substantive appeal. See Rule 37, 19.137. 19.126 Rule 26; DismissaL Appeals which fail to allege specific error of fact or law in the determination being appealed may be dismissed. The appellant and/or representative will be notified of the dismissal action. (38 U.S.C. 4005(d)(5), 4008) Cross-Reference: Reconsideration. See Rules 85-90, 19.185-19.190. Filing 19.127 Rule 27; Place of fillrg notice of disagreement and substantive appeal. The notice of disagreement and substantive appeal shall be filed with the Veterans Administration office from which the claimant received notice of the determination being appealed. (38 U.S.C. 4005(b)(1), (d)(3)) 19.128 Rule 28; Who can file an appeal. (a) Personsauthorized.A notice of disagreement and a substantive appeal may be filed by a claimant personally or by an accredited representative of a recognized organization, by an attorney or by an agent, if a proper power of attorney or declaration of representation, as applicable, is on record or accompanies such notice of disagreement or appeal. (38 U.S.C. 4005(b)(2)) (b) Claimantratedincompetent by Veterans Administrationor under disabilityand unable to file. If an appeal is not filed by a person listed in paragraph (a) of this section, and the claimant is rated incompetent by the Veterans Administration or has a

(a) Substantive appeal.A substantive appeal shall consist of a properly completed VA Form 1-9, Appeal to Board of Veterans Appeals, or correspondence containing the necessary information. The appeal should set out specific arguments relating to errors of fact or law. To the extent feasible the agument.should be related to specific items in the statement of the case. This is the last action the appellant needs to take to perfect the appeal. The Board will construe such arguments in a liberdl manner for purposes of determining whether they raise issues on appeal. (Approved by the Office of Management and Budget under OMB control number 2900-0085) (38 U.S.C. 4005(d)(4)-(5)) (b) Certification.Following receipt of the substantive appeal, the agency of original jurisdiction will certify the case to the Board of Veterans Appeals. Certification is accomplished by the execution of VA Form 1-8, Certification of Appeal. Its purpose is to identify the issues for appellate consideration and to 'serve as a check list for the originating agency to ensure that the appeals development procedures have been adequate, particularly as they affect the appellant's due process rights. (38 U.S.C. 4005) Cross-Reference: Furnishing the statement of the case and instructions for filing a substantive appeal See Rule 21(b),
19.121(b]. 19.124 Rule 24; Closing-failure to respond to itatement of the case.

physical, mental or legal disability which prevents the filing of an appeal on his or her own behalf, a notice of disagreement and a substantive appeal may be fied by a fiduciary appointed to manage the claimant's affairs by the Veterans Administratiorl or a court, or by a person acting as next friend if the appointed fiduciary fails to take needed action or no fiduciary has been appointed. (38 U.S.C. 4005(b)(2)) (c) Claimantunder disabilityand able to file. Notwithstanding the fact that a fiduciary may have been appointed for a claimant, an appeal filed by a claimant will be accepted. (38 U.S.C. 4005(b)(2)) Cross-References: Who can file an appeal in 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 persons as representative. See Rule 54. 19.154. 19.129 Rule 29; Time limit for filing. (a) Notice of disagreement.A notice of disagreement shall be filed within I year from the date of mailing of notification of the initial review and determination; otherwise, that determination will become final. The date of the letter of notification will be considered the date of mailing for purposes of determining whether a timely appeal has been filed. (38 U.S.C. 4005(bJ([)) (b) Substantive appeal.A substantive appeal-shall be filed within 60 days from the date of mailing of the statement of the case, or within the remainder of the 1-year period from the date of mailing of the notification of the initial review and determination being appealed, whichever period ends later. The date of the statement of the case itself will be considered the date of mailing for purposes of determining whether a timely appeal has been filed. Where a supplemental statement of the case is furnished, a period of 30 days will be allowed for response. (38 U.S.C. 4005(b)(1), (d)(3)) Cross-Reference: Time limits for filing in contested claims. See rule 45, 19.145. 19.130 Rule 30; Extension of time for filing. (a) General.An extension of the 60day period for filing a substantive appeal or the 30-day period for responding to a supplemental statement of the case may be granted for good cause shown. A request for such an extension should be in writing and must be made prior to expiration of the time limit for filing the substantive ippeal. The request for extension should be filed with the Veterans Administration office from which the claimant received

The agency of original jurisdiction may close the appeal without notice to an appellant for failure to respond to a statement of the case within the period allowed. However, if a response is subsequently received within the 1-year appeal period (except for contested claims), the appeal will be considered to be reactivated. (38 U.S.C. 4005(d)(3)) Cross-Reference: Time limit for filing. See Rule 29(b), 19.129(b).

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time limits for filing administrative appeals. See Rule 39, 19.139. Notification to claimant. See Rule 40, 19.140. Merge of administrative appeal and claimant's appeal. See Rule 41, 19.141. Effect of decision on administrative or merged appeal. See Rule 42,
19.142.

notice of the determination being appealed. That same office will make a determination as to extension. A denial of a request for extension may be appealed to the Board. (38 U.S.C. 4005(dl(3)) (b) Additionalevidence filed. The filing of additional evidence after receipt of notice of an adverse determination shall not extend the time limit for initiating or completing an appeal from that determination. (38 U.S.C. 4005(d)(3)) Cross-References: Extension of time for filing in contested claims. See Rule 48, 19.148. Evidence. See Rules 72-74, 19.172-19.174. New claim after appellate decision. See Rule 94, 19.194. 19.131 Rule 31: Computation of time limit. (a) Acceptance of postmark date. A notice of disagreement or a substantive appeal postmarked prior to expiration of the applicable time limit will be accepted as having been timely filed. (38 U.S.C. 4005(b)(1)) (b) Computationof time limit. In computing the time limit for filing a notice of disagreement or a substantive appeal, the first day of the specified period will be excluded and the last day included. Where the time limit would expire on a Saturday, Sunday, or holiday, the next succeeding workday will be included in the computation. (38 U.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 any other day appointed as a holiday by the President or the Congress of the.United States, are as follows: New Yeaf's Day-January 1; Inauguration DayJanuary 20 of every fourth year or; if the 20th falls on a Sunday, the next succeeding day selected for public observance of the inauguration; Washington's Birthday-third Monday in February; Memorial Day-last Monday in May; Independence DayJuly 4; Labor Day-first Monday in September; Columbus Day-second Monday in October; Veteran's DayNovember 11; Thanksgiving Day-fourth Thursday in November, and Christmas Day-December 25. (5 U.S.C. 6103) 19.133 Rule 33; Timely filing of appeal questioned within the agency of original jurisdiction. If, within the agency of original jurisdiction, there is a question as to the timely filing of a notice of disagreement or substantive appeal, the procedures for an administrative appeal must be followed. (38 U.S.C. 4005(d)(3), 4006) Cross.References: Administrative appeal. See Rule 38, 19.138. Officials authorized and

authorized to do so to resolve a conflict

of opinion or a question of a claim involving benefits under laws administered by the Veterans Administration. Such appeals may be taken not only from determinations involving dissenting opinions but also from unanimous determinations denying or allowing the benefit claimed, in whole or in part. (38 U.S.C. 4006) (b) Form of appeal.An administrative appeal is entered by a memorandum entitled "Administrative Appeal" in which the issues and the basis for the appeal are set forth. (38 U.S.C. 4006) Cross-Reference: Restriction as to change in payments pending determination of administrative appeals. See 19.4. 19.139 Rule 39; Officials authorized and time limits for filing administrative appeals. The Administrator of Veterans Affairs authorizes certain officials of the Veterans Administration to fie administrative appeals within specified time limits. (a) Centraloffice.-(1) Officials. The Chief Benefits Director or a service director of the Department of Veterans Benefits, the Chief Medical Director or a service director of the Department of Medicine and Surgery, and the General Counsel are so authorized. (2) Time limit. Such officials must file an administrative appeal within I year from the date of the determination, or within I year from the date of mailing notice of such determination, whichever is later. (38 U.S.C. 4006) (b) Agencies of original jurisdiction.(1) Officials. Directors, adjudication officers, and officials at comparable levels in field offices deciding any claims for benefits, from any determination originating within their established jurisdiction, are also authorized. (2) Time limit. The director or comparable official must file an administrative appeal within 6 months fronr the date of the determination or within 6 months from the date of mailing notice of the determination, whichever is the later date. Officials below the level of director must do so within 60 days from such date. (38 U.S.C. 4006) (c) The date of mailing. With respect to paragraphs (a) and (b) of this section, the term "date of mailing" is defined as the date of the letter of notification to the claimant. (38 U.S.C. 4005) "19.140 Rule 40; Notification to claimant When an administrative appeal is entered, the claimant and the representative, if any, will be promptly furnished a copy of the memorandum entitled "Administrative Appeal," or an

19.134 Rule 34; Adequacy of notice of

disagreement questioned within the agency of original jurisdiction. If. within the agency of original jurisdiction, there is a question as to the adequacy of a notice of disagreement the procedures for an administrative appeal must be followed. (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 to claimant. See Rule 40, 19.140. Merge of administrative appeal and claimant's appeal. See Rule 41, 19.141. Effect of decision on administrative or merged appeal. See Rule 42, 19.142. 19.135 Rule 35; Untimely filing of appeal protested by claimant. If the claimant or his/her representative protests an adverse *determination made by the agency of original jurisdiction with respect to timely filing of the notice of disagreement or substantive appeal, the claimant will be furnished a statement of the case. (38 U.S.C. 4005(d)) 19.136 Rule 36; Inadequacy off the notice of disagreement. If the claimant or his/her representative protests an adverse determination made by the agency of original jurisdiction with respect to adequacy of the notice of disagreement, the claimant will be furnished a statement of the case. (38 U.S.C. 4005(d)) 19.137 Rule 37; Adequacy of the substantive appeal. A decision as to the adequacy of allegations of error of fact or law in a substantive appeal will be made by the Board of Veterans Appeals. When the Board raises the issue'of adequacy of the substantive appeal, the appellant and representative, if any, will be given notice of the-issue and a period of 60 days following the date on which such notice is mailed to present written argument or to request a hearing to present oral argument on this question. The date of the letter of notification will be considered the date of mailing the notice. (38 U.S.C. 4005(d)(3), 4008) 19.138 Rule 38; Administrative appeal (a) General.An administrative appeal from an agency of original jurisdiction determination is an appeal taken by an official of the Veterans Administration

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adequate summary thereof, outlining the question at issue and'will be allowed a period of 60 days to join in the appeal if he/she so desires. The claimant will also be advised of the effect of such action and preservation of normal appeal rights if he/she does not elect to join. (38 U.S.C. 4006) 19.141 Rule 41; Merger of administrative appeal and claimant's appeal. If the claimant or the representative elects to join in the administrative appeal, it becomes a merged appeal and the rules governing an appeal initiated by a claimant are for application. The presentation of evidence or argument in response to notification of the right to join in the administrative appeal will be construed as merging the appeal. If the. claimant or representative does not authorized the merger, he/she should hold such evidence or argument in abeyance until resolution of the administrative appeal. (38 U.S.C. 4006) 19.142 Rule 42; Effect of decision on administrative or merged appeal. (a) Appeal merged. If the administrative appeal is merged, the appellate decision on the merged appeal will constitute final disposition of the claimant's appellate rights. (b) Appeal not merged.If the claimant does not authorize merger, normal appellate rights on the same issue are preserved, and a decision in a separate appeal perfected by the claimant will be entered by another section of the Board. The period of time, from the date of notification to the claimant of the administrative appeal to the date of the Board's decision on the administrative appeal, is not chargeable to the claimant for purposes of perfecting the appeal. (38 U.S.C. 4006) Cross-Rderences: Notification of appellate rights. 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 to appeal Insimultaneously contested claims. A simultaneously contested claim exists where one claim is allowed and another claim involving the same benefit is disallowed or the allowance of one claim would result in the payment of a lesser benefit to another claimant. All interested parties will be specifically notified of the action taken and of the right and time limit for initiation of an appeal, as well as hearing and representation rights. (38 U.S.C. 4005A(a)) Cross-Reference: Hearings in simultaneously contested claims. See Rule 67,
19.167.

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19.144 Rule 44; Who can file an appeal in

contested claims. In a contested claim, any claimant or representative of a claimant may file a notice of disagreement or substantive appeal within the time limits set out in Rule 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 In contested claims. (a) Notice of disagreement.Where one claim is allowed and one denied, or the allowance of one claim would result in payment of a lesser amount to another claimant, the notice of disagreement from the person adversely affected must be filed within 60 days from the date of mailing the notification of the review or determination; otherwise, that determination will become final. The date of the letter of notification will be considered the date of mailing for purposes of determining whether a timely notice of disagreement has been filed. (38 U.S.C. 4005A(a)) (b) Substantive appeal.A substantive appeal must be filed within 30 days from the date of mailing of the statement of the case. The date on the statement of the case will be considered the date of mailing for purposes of determining whether a timely appeal has been filed, (38 U.S.C. 4005A(b)) Cross-References: Computation of time limit. See Rule 31, 19.131. Legal holidays. See Rule 32, 19.132. Timely filing of appeal questioned within the agency of original jurisdiction. See Rule 33, 19.133. 19.146 Rule 46; Notice to contesting parties on receipt of notice of disagreement. Upon the filing of a notice of disagreement in a contested claim, all parties in interest and their representatives will be furnished a copy of the statement of the case. The parties in interest who filed notices of disagreement will be duly notified of the right and time limit to file a substantive appeal and furnished with VA Form 1-9, Appeal to Board of Veterans Appeals. (Approved by the Office of Management and Budget under OMB control number 2900-0085) (38 U.S.C. 4005A(b)) Cross-Reference: Furnishing the statement of the case and instructions for filing a substantive appeal. See Rule 21, 19.121. 19.147 Rule 47; Notice of substance of appeal to other contesting parties. When a substantive appeal is filed, the substance of the appeal will be

communicated to the other interested parties, and a period of 30 days will be allowed for filing a brief or argument in answer. (38 U.S.C. 4005A(b)) 19.148 Rule 48; Extension of time for filing incontested claims. An extension of the 30-day period to file a substantive appeal may be granted for good cause shown. In granting an extension in contested claims, consideration will be given to the interests of the other parties involved. A request for such an extension should be in writing and must be made prior to expiration of the time limit for filing the substantive appeal. (38 U.S.C. 4005A(b)) 19.149 Rule 49; Notices to last addresses of record Incontested claims. Notices in contested claims will be forwarded to the last address of record of the parties concerned and such action will constitute 'sufficient evidence of notice. (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 an appeal by a recognized organization, attorney or agent, or other person authorized to represent claimants before, the agency of original jurisdiction. (38 U.S.C. 3401-3405, 4005(a)) 19.151 Rule 51; Recognized organizations. (a) Designationby power of attorney. The designation by power of attorney to a recognized organization will be by duly executed VA Form 23-22, Appointment of Veterans Service Organization as Claimant's Representative. (38 U.S.C. 4005(b)(2)) (b) Revocation or change of power of attorney. An @ppellant may revoke a power of attorney to a recognized organization at any time, irrespective of whether another representative is concurrently designated. The revocation is effective when notice of such is received by the Veterans Administration. (Approved by the Office of Management and Budget under OMB control 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 guardian permitting access to all information in the individual's records and a signed statement by the attorney that he/she is authorized to represent the appellant prepared on the attorney's letterhead

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Federal Register / Vol. 48, No. 34 / Thursday, February 17, 1983 / Rules and Regulations (b) More than one appellant.If an individual has been recognized as a representative for one appellant and has not appealed such limitation to the Office of the General Counsel as provided in 14.630 of this title, he/she must obtain permission from the Chairman of the Board of Veterans Appeals to represent any other appellant before the Board. (38 U.S.C.
3403) recognized attorney is present. Otherwise, such individuals must qualify as agents or representatives under Rule 53 or 54 ( 19.153 or 19.154). Legal interns, law students and paralegals who desire to participate at a hearing before the Board must make advance arrangements with the Chief of the Hearing Section"and submit written authorization from the attorney naming the individual who will be participating in 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 appellant or a representative expresses a desire to appear in person. (38 U.S.C. 4002) (b) Purpose of hearing.The purpose of a hearing is to receive argument and testimony relevant and material to the appellate issue. (38 U.S.C. 4002) (c) Nonadversaryproceedings. Hearings conducted by and for the Board are ex parte in nature and nonadversary. Parties to the hearing will be permitted to ask questions, including follow-up questions, of all witnesses but cross-examination will not be permitted. Proceedings will not be limited by legal rules of evidence, but reasonable boundd of relevancy and materiality will be maintained. (38 U.S.C. 4002) 19.158 Rule 58; Who may appear. The appellant, the authorized representative, and members of Congress and their staffs may appear and present argument and testimony in support of an appeal. At the request of an appellant, a Veterans Benefits Counselor of the Veterans Administration may present the appeal at a hearing before the Board of Veterans Appeals or before Veterans Administration field personnel acting for the Board. (38 U.S.C. 4002, 4005(b)(2)) Cross-Reference: Witnesses. See Rule 65, 19.165. 19.159 Rule59; Schedullngandnoticeof hearing. (a) General.To the extent that facilities permit, hearings will be scheduled at the convenience of appellants and their representatives, with consideration of the travel distance. involved. While a statement of the case should be prepared prior to the hearing it is not a prerequisite for entitlement to a hearing, and an appellant may request that the hearing be scheduled prior to issuance of the statement of the case. (38 U.S.C. 4002) (b) Notification ofhearing. When a hearing is scheduled, the person

will be accepted as an executed power of attorney. If it is contemplated that a legal intern, law student, or paralegal will assist in the appeal, written consent must be obtained from the appellant. (38
U.S.C. 3401, 3404) 1

(b) Revocation or change of representationby an attorney.An appellant may revoke a declaration of representation by an attorney at any time, irrespective of whether another representative is concurrently designated. The revocation is effective when notice of such is received by the Veterans Administration. (38 U.S.C. 3404) Cross-References: requirements for recognition of representatives, agents, and attorneys. See 14.629(c). Powers of attorney. See 14.631. Legal interns, law students and paralegals. See Rule 56, 19.156.
19.153 Rule 53; Agents.

(c) Revocation or change of power of attorney.An appellant may revoke a power of attorney 'to such an individual at any time, irrespective of whether another representative is concurrently designated. The revocation is effective when notice of such is received by the Veterans Administration. (38 U.S.C. 3403, 3404)
19.155 Rule 55; General.

(a) Designation.The designation of an agent will be by a duly executed power of attorney (VA Form 2-22a, Appointment of Attorney or Agent as Claimant's Representative, or its equivalent). The designation must be to an individual, rather than a firm or partnership. (38 U.S.C. 3404) (b) Admission to practice.The provisions of 38 U.S.C. 3404 and 38 CFR 14.629(b) are applicable to admission of agents to practice before the Veterans Administration. Authority for making determinations concerning admission to practice rests with the General Counsel of the Veterans Administration, and any questions concerning admissions should be addressed to that office, 810 Vermont Avenue, N.W., Washington, D.C. 20420. (c) Revocation or change of power of attorney. An appellant may revoke a power of attorney to an agent at any time, irrespective of whether another representative is concurrently designated. The revocation is effective when notice of such is received by the Veterans Administration. (38 U.S.C. 3403, 3404) Cross-Reference: Powers of attorney. See 14.631. 19.154 Rule 54; Other persons as representative. (a) General.Any competent person may be recognized as a representative for a particular claim, unless that person has been barred from practice before the Veterans Administration. The designation must be by VA Form 2-22a, Appointment of Attorney or Agent as Claimant's Representative, or its equivalent, which stipulates that no fee or compensation of any nature will be charged or paid for the services. (38
-

(a) One representative.A specific claim may be prosecuted at any' one time by only one recognized organization, attorney, agent or other person properly designated to represent the appellant. (38 U.S.C. 4005(b)(2)) (b) Change of status from spouse to surviving spouse. A power of attorney or designation of representation submitted by the spouse of a veteran may continue in effect after the veteran's death. (38 U.S.C. 3402-3404) (c) Recognition of representationafter the death of the veteran. A recognized organization, attorney, agent or person properly designated to represent a veteran may, in the event of the death of the veteran, be recognized as the representative of the survivors for a reasonable period thereafter- but not as representative of a survivor who has appointed another representative. (38 U.S.C. 3403-3404) (d) Reasonableperiod.For purposes of paragraph (c) of this section, a reasonable period may be considered as that which would enable a potential appellant to recover sufficiently from the emotional stress and strain caused by the veteran's death so as to enable him/her to exercise his/her right to representation. (38 U.S.C. 3402-3404) Cross-References: Inspection of records by or disclosure of information to recognized representatives of organizations and recognized attorneys. See 1.525(d). Powers of attorney. See 14.631(e). 19.156 Rule 56; Legal Interns, law students and paralegals. Legal interns, law students and paralegals must be under the direc't supervision of a recognized attorney (Rule 52, 19.152) in order to prepare cases before the Board of Veterans Appeals. These individuals may present oral arguments at hearings only if the

U.S.C. 3403)

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requesting it will be notified of its time and place, and of the fact that the government may not assume any expense incurred by the appellant, the representative or witnesses attending the hearing. (38 U.S.C. 4002) (c) Extension of time. An extension of time for appearance at a hearing may be granted for good cause shown, with due consideration of the interests of other parties if a contested claim is involved. Ordinarily, hearings will not be postponed more than 30 days. Examples of godd cause include the following: illness of the appellant and/or representative, difficulty in obtaining records, and unavailability of a witness. -(38 U.S.C. 4002, 4005A)

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members, all of whom will participate in

the final decision. When, after a hearing, a Board member assigned to a panel is unable to participate in the final decision, the Chairman may assign a substitute 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 the presiding member. The presiding member is responsible for the conduct of the hearing, administration of the oath or affirmation, and for ruling on questions of procedure. The presiding member will assure that the course of the hearing remains relevant to the issue on appeal and that there is no cross-examination of 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 the presiding member must make advance arrangements through the Chief of the Hearing Section. Such conference should be limited to issue identification, stipulations of fact and procedural matters. (38 U.S.C. 4002) , 19.164 Rule 64; Procurement of additional evidence following a hearing. If it appears during the course of a hearing that additional evidence would assist in the review of the questions at issue, the president member may direct that the record be left open so that the appellant and any representative may obtain the desired evidence. The presiding member will determine the period of time during which the record will stay open, considering the amount of time estimated by the appellant or representative as needed to obtain the evidence and other factors adduced during the hearing; the period will not customarily exceed 60 days, and will be as short as possible in order that appellate consideration of the case not be unnecessarily delayed. (38 U.S.C.

19.160 Rule 60; Place of hearing.

A hearing may be held in one of the following places at the option of the appellant: (a) Before a section of the Board of Veterans Appeals in Washington, D.C. (b) To the extent scheduling permits, before a traveling section of the Board of Veterans Appeals during regularly scheduled visits to Veterans Administration facilities. (c) Before appropriate personnel in the Veterans Administration regional or other office nearest the appellant's residence, acting as a hearing agency for the Board of Veterans Appeals. Such personnel will allow the appellant and/ or representative to present any argument and testimony as well as any witnesses before the panel. Rule 62 ( 19.162) and Rules 64-67 ( 19.16419.167) are applicable to this-paragraph. Hearings under paragraph (a) of this section are held before members who will make the final decision on the appeal. Hearings under paragraph (b) of this section are normally held before members who will make the final decision on appeal unless the issue on appeal involves radiation exposure, agent orange exposure or asbestosis. In these instances the decision will be signed by Board members specializing in those issues. If a travel Board panel is comprised of less than three Board members, the Chairman will assign additional member(s) in Washington, D.C., to constitute a three-member panel. (38 U.S.C. 4002) Cross-References: Determinations by the Board. See 38 U.S.C. 4003. Voting by Board members. See Rule 81, 19.181. 19.161 Rule 61; Composition of the hearing panel. The Board of Veterans Appeals hearing panel shall consist of a presiding Member acting as the chairman, and usually two other Board

voluntary appearance of any witnesses he/she desires, but the Board will not require the appearance of any Veterans Administration official or other person. (38 U.S.C. 4002) (b) Testimony under oath. All testimony must be given under oath unless excused because of religious principles or other good cause. If the witness declines to take an oath, he/she should be informed that the testimony will be permitted on affirmation. The witness should then be requested to make a solemn declaration as to the truth of the testimony about to be given. The witness may use such words as he/ she considers binding on his/her conscience. Administration of the oath for the sole purpose of presenting contentions and argument is not required. (38 U.S.C. 4002) 19.166 Rule 66; Expenses No expenses incurred by an appellant, counsel, or Witnesses incident to attendance at a hearing may be paid by * the government. (38 U.S.C. 111) 19.167 Rule 67; Hearings In simultaneously contested claims. If a hearing is scheduled for either party to a simultaneously contested claim, the Board will either accord the other contesting claimant or his/her representative the opportunity to be present but not participate, or will advise the other contesting claimant or his/her representative in writing of the substance of the arguments or contentions advanced.-In either event, a reasonable time will be allowed for argument or testimony in refutation, and a separate hearing for the other contesting claimant will be scheduled for that purpose, if requested. (38 U.S.C. 4005A) 19.168 Rule 68; Recorded hearing. (a) Boardof Veterans Appeals. The hearing proceedings before a Section of the Board shall be recorded and a tape of these proceedings shall be on file at the Board of Veterans Appeals. A written transcript or a copy of the tape may be furnished without cost to the appellant or representative if so requested at the time of or prior to the hearing; otherwise a charge may be made in accordance with 1.577 of this title. (b) Fieldoffices. The hearing proceedings before field office personnel after the filing of a notice of disagreement shall be recorded and a copy of the complete transcript incorporated as a permanent part of the claims folder. A copy may be furnished without cost to the appellant or

4002, 4004)
Cross-References: Consideration of additional evidence received by the agency of original jurisdiction. See rule 73, 19.173. Consideration of additional evidence received 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 or a representative may arrange for the

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Thursday, February 17, 1983

Rules and Regulations

representative if so requested at the time of or prior to the hearing; otherwise a charge may be made in accordance with 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 own equipment. Filming, videotaping or televising the hearing may be authorized provided a consent is obtained from the appellant and made a matter of record. In all such situations advance arrangements must be made with the Chief of the Hearing Section. In no event will such additional equipment be used if it interferes with the conduct of the hearing or the official recording apparatus. (38 U.S.C. 4002) Cross-Reference: Functions of the presiding
member. 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 transcript

versions. Alternate transcript versions prepared by the appellant and representative may be considered as a supplemental argument and filed in the appellant's record. (38 U.S.C. 4002, 4005) Evidence 19.172 Rule 72; Submission of additional evidence. An appellant may submit additional evidence or information as to the availability of additional evidence after initiating an appeal. (38 U.S.C. 4005(d)(1)) Cross-Reference: Extension of time for filing. See Rule 30(b), 19.130(b). 19.173 Rule 73; Consideration of additional evidence received by the agency of original jurisdiction. (a) Evidence receivedpriorto transfer of recordsto Boardof Veterans Appeals. Evidence received in the agency of original jurisdiction after an appeal has been initiated but prior to transfer of the records to the Board of Veterans Appeals, including evidence received after certification has been completed, will be referred to the rating or authorization activity for review and disposition. A supplemental statement of the case will be furnished the appellant and his/her representative as provided in Rule 22 (19.122). (38 U.S.C. 4005(d)(1)) (b) Evidence receivedafter transferof records to the Boardof Veterans Appeals. Additional evidence received in an agency of original jurisdiction after the records have been transferred to the

Board of Veterans Appeals for appellate consideration will be forwarded to the Board if it has a direct bearing on the appellate issue or issues. The Board will then determine what procedural steps are required with respect to the additional evidence. (38 U.S.C. 4004(b), 4005(d)(1)) Cross-References: Substantive appeal. See Rule 23(b), 19.123(b). Consideration of additional evidence received by the Board of Veterans Appeals. See Rule 74, 19.174. 19.174 Rule 74; Consideration of additional evidence received by the Board of Veterans Appeals. The appellant and/or representative may submit additional pertinent evidence following certification and transfer of the appeal to the Board. This evidence, as well as any referred by the originating agency under Rule 73(b) (19.173(b)), must be referred to the agency of original jurisdiction for review and preparation of a supplemental statement of the case unless this procedural right is waived by the appellant. Such waiver must be in writing or formally entered as part of the hearing 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 which they are entered on the docket, except that a case may be advanced on the docket fbr earlier consideration for good cause shown. (38 U.S.C. 4007) Cross-Reference: Advance on the docket.
See Rule 6, 19.106.

opinion from one or more medical

experts who are not employees of the Veterans Administration. Opinions will be secured, as requested by the Chairman of the Board, from recognized medical schools, universities, clinics or medical institutions with which arrangements for such opinions have been made by the Administrator of Veterans Affairs. An appropriate offical of the institution will select the individual expert(s) to give an opinion. (38 U.S.C. 4009)

19.178 Rule 78; Filing of requests for the

procurement of medical opinions. The appellant or representative may request that the Board obtain a medical opinion under Rule 76 or 77 ( 19.176 or 19.177). Such request must be in writing and will be granted upon a showing of good cause, such as where complex or controversial medical issues are involved in the appeal. (38 U.S.C. 4002,

4004(c), 4009)
19.179 Rule 79; Notification of medical opinions secured by the Board. When an opinion under Rule 76 or 77. ( 19.176 or 19.177) has been obtained by the Board, a copy of such opinion will be furnished to the appellant's representative or, subject to the limitations provided in 38 U.S.C. 3301, to the appellant if there is no representative. A period of 60 days will be allowed for response. (38 U.S.C. 4005, 4009) 19.180 Rule 80; The decision. (a) Decisionsbasedan entirerecord. The appellant is presumed to be in agreement with any statement of fact contained in a statement of the case to which no exception is taken. Decisions of the Board, however, shall be based on a review of the entire record. (38 U.S.C. 4005(d](4)-(5)) (b) Dispositionof issues. The decision of the Board will dispose of each issue on appeal by allowance, denial, remand or dismissal, in whole or in part. (38 U.S.C. 4004(a)) . (c) Format.The decision of the Board shall be in writing and shall setforth specifically the issue or issues, separately stated findings of fact and conclusions of law, and the reasons for the Board's decision. (38 U.S.C. 4004(d)) 19.181 Rule 81; Voting by Board members. (a) Unanimous decisions. A decision unanimously concurred in by the Members of the Section and duly promulgated shall be final. (38 U.S.C. 4003(a)) (b) Dissent.Where the members do not agree, the Chairman of the Board

19.176 Rule 76; Medical opinions. (a) Opinion of the ChiefMedical Director.The Board may obtain an expert medical opinion from the Chief Medical Director of the Veterans Administration on medical questions involved in the consideration of an appeal when, in its judgment, such medical expertise is needed for equitable disposition of the appeal. (38 U.S.C. 4009(a)) (b) Armed ForcesInstitute of PathologyOpinions. The Board may refer pathologic material to the Armed Forces Institute of Pathology for review and expression of opinion' (38 U.S.C. 4009(a)) Cross-Reference: Governing criteria. See
Rule 3, 19.103.

19.177 Rule 77; Independent medical expert opinions. When, in the judgment of the Board, additional medical opinion is warranted by the medical complexity or controversy involved in an appeal, the Board may obtain an advisory medical

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Federal Register / Vol. 48, No. 34 / Thursday, February 17, 1983 -/ Rules and Regulations may either concur with the majority, in which event this will constitute a final decision of the Board, or may direct further consideration by two or more sections, not to exceed 12 members, including the section to which the case was originally assigned. Any decision by an expanded panel which is not unanimous will require approval of the Chairman of the Board; if the members are equally divided, the Chairman will participate in the decision by casting the deciding vote. (38 U.S.C. 4003(b)) Cross-References: Appointment, assignment, and rotation of'members. See
Rule 10(d), 19.110(d). Place of hearings. See Rule 60, 19.1.60. Composition of the hearing panel. See Rule 61. 19.161. When

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participated or had supervisory responsibility in the agency of original jurisdiction prior to his/her appointment as .a member of the Board, or where there are other circumstances which might give the impression of bias either for or against the appellant. (38 U.S.C.
4002)

designee will assign a reconsideration panel according to Rule 90 ( 19.190). The appellant and representative will be so notified. At the time of notification the appellant and the representative will be given a period of 60 days to present additional arguments. (38 U.S.C. 4003, 4008) 19.187 Rule 87; Evidence considered. Reconsideration of an appellate decision for errior shall be limited to review of the evidence of record at the time the decision was entered, but the Board may secure additional medical or legal opinion. Additional evidence, apart from service department records, submitted following the decision being reconsidered is subject to the provisions of Rule 94 ( 19.194) concerning new and material evidence. (38 U.S.C. 4003, 4009) Cross-Reference: When reconsideration is
accorded. See Rule 85, 19.185.

reconsideration is accorded. See Rule 85, 19.185. 19.182 Rule 82; Remand for further development. (a) General. When, during the course of review, it is determined that further evidence or clarification of the evidence or correction of a procedural defect is essential for a proper appellate decision, the section of'the Board shall remand the case to the agency of original jurisdiction, specifying the further development to be undertaken. (38 U.S.C. 4002, 4004(a)] (b) Review by agency of original jurisdiction.Where the development results in additional evidence, a supplemental statement of the case will be furnished the appellant and any representative, and the records will again be reviewed by the agency of original jurisdiction. A supplemental statement of the case will not be required where the only purpose of the remand is to assemble records previously considered by the agency of original jurisdiction. If the case is remanded to cure a procedural defect, the Board may also require issuance of a supplemental statement of the case to assure full notification to the appellant of the status of the case. (38 U.S.C. 4005(d)(1) (c) Resubmission to Boardof Veterans Appeals. Unless the benefits at issue on appeal are awarded upon review by the agency of original jurisdiction, the records will be returned to the Board of Veterans Appeals for completion of appellate review. Remanded cases will not be closed for failure to respond to the supplemental statement of the case. (38 U.S.C. 4005(d)) 19.183 Rule 83; Disqualification of members. (a) General.A member of the Board shall disqualify himself/herself in a hearing or decision on an appeal from a determination in which he/she

(b) Appeal on same issue subsequent to decision on administrativeappeal. Members of the Board signatory to the decision on an administrative appeal will disqualify themselves from acting on a subsequent appeal by the claimant on the same issue. (38 U.S.C. 4002) Cross-Reference: Effect of decision on administrative or merged appeal. See Rule 42, 19.142. 19.184 Rule 84; Administrative allowance. The Chairman or Vice Chairman, under authority delegated in 38 CFR 19.5(b), may authorize an administrative allowance, following review and recommendation by members of the Board, in adjudicative actions which are otherwise final. (38 U.S.C. 210(b), 212(a)) Reconsideration 19.185 Rule 85; When reconsideration 16 accorded. Reconsideration of an appellate decision may be accorded at any time by the Board of Veterans Appeals on request by the appellant or his/her representative or on the Board's own motion: (a) Upon allegation of obvious error of fact or law; or (b] Upon discovery of new and material evidence in the form of records or reports of the military, naval or air service department concerned or officially corrected service department record. (38 U.S.C. 4003, 4004(b)) 19.186 Rule 86; Filing and disposition of a motion for reconsideration. (a) Application requirements.A motion for reconsideration shall set forth clearly and specifically the alleged obvious error(s) of fact or law in the decision of the Board or other appropriate basis for requesting reconsideration. This motion may be filed at any time. (38 U.S.C. 4003, 4008) (b) Disposition.The Chairman or his/ her designee Will review the sufficiency of the allegations set forth in the motion. (1) Motion denied. The appellant and representative will be notified if the motion is denied. The notification will be signed by the Chairman and will include reasons why the allegations are found insufficient. This constitutes final disposition of the motion. (2) Motion allowed.If the motion is allowed, the Chairman or his/her

19.188 Rule 88; Remand pursuant to reconsideration. In connection with a reconsideration, the Board may remand for the purpose of obtaining or developing additional evidence. Such evidence may provide the basis for a reopened claim under the provisions of Rule 94 ( 19.194). (38 U.S.C. 40o4(b)) 19.189 Rule 89; Hearings on reconsideration. (a) Right to a hearing. After a motion for reconsideration has been allowed, a hearing shall be granted if an appellant or representative desires to appear in person. (38 U.S.C. 4002, 4003) (b) Composition of the hearingpanel. The hearing panel will include those members who participated in the original decision, if available and any additional members assigned by the Chairman or his/her designee. (38 U.S.C. 4002, 4003) 19.190 Rule 90; Number of members on reconsideration panel. (a) Boardmember(s) signatoryto decision available.When a motion for reconsideration is allowed, the Chairman or his/her designee will assign a panel to review the merits of the reconsideration. The number of Board members assigned to the reviewing panel shall be determined by doubling the number of members who participated in the original decision (to a maximum number of 12 members). All members who participated in the decision being reconsidered and are still available will be assigned to the panel. (38 U.S.C. 4002) (b) Boardmember(s) signatoryto decision unavailable.When a motion for reconsideration is allowed and the

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19.197 Rule 97; Nonprecedentlial nature of Board decisions.

Board Members who participated in the decision being reconsidered are no longer available, the Chairman or his/ her designee may assign a panel consisting of three Board members to review 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 which does not affect the merits of the issue or substantive rights of the appellant will be considered harmless and not a basis for vacating, reversing, or modifying such decision. (38 U.S.C. 4003) 19.192 Rule 92, Finality of determinations of the agency of original jurisdiction where appeal is not perfected. A determination on a claim by the agency of original jurisdiction of which the claimant is properly notified shall become final if an appeal is not perfected as prescribed in Rule 29 (19.129). (38 U.S.C. 4005(c)) 19.193 Rule 93; Finality of determinations of the agency of original Jurisdiction affirmed on appeal. When the determination of the agency of original jurisdiction is affirmed by the Board of Veterans Appeals, such determination becomes a part of the appellate decision. (38 U.S.C. 4004(a)) 19.194 Rule 94; New claim after appellate
decision.

The Board will strive for consistency in issuing its decisions. Previously issued Board decisions will be considered binding only with regard to the specific case decided; prior decisions in other appeals may be considered in a case to the extent that they reasonably relate to the case. Each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable law and procedure. (38 U.S.C. 4004(a)) Privacy Act
19.198 Rule 98; Privacy Act requestappeal pending.

same issues are grouped together in the index under alphabetically arranged subject terms. The index is available at Veterans Administration regional offices and at the Board of Veterans Appeals in Washington, D.C. Microfiche copies can be obtained by writing to the Appellate Index and Retrieval Staff (01C1), Board of Veterans Appeals, Washington, D.C.
20420.

When a claimant requests that a claim be reopened after an appellate decision and submits evidence in support thereof, a determination as to whether such evidence is new and material must be made and, if it is, whether it provides a new factual basis for allowing the claim, An adverse determination as to either question is appealable. (38 U.S.C. 4004(b))
19.195 Rule 95; Death of appellant

during pendency of appeal. When an appeal is pending before the Board of Veterans Appeals at the time of the appellant's death, the Board may complete its action on the issues properly before it without application from the survivors. (38 U.S.C. 4008) Crose-References: General (Representation). See Rule 55(c), 19.155(c). Claim for death benefits by survivor-prior unfavorable decision. See Rule 96, 19.196. 19.196 Rule 96, Claim for death benefits by survivor--prior unfavorable decision. Issues involved in a survivor's claim for death benefits will be decided without regard to any prior disposition of those issues during the veteran's lifetime. (38 U.S.C. 4004(b))

When a Privacy Act request is filed by an individual seeking records pertaining to him or her (under 1.577 of this title) and the relevant records are in the custody of the Board, such request will be reviewed and processed prior to appellate action on that individual's appeal. (5 U.S.C. 552a; 38 U.S.C. 4002, 4007) 19.199 Rule 99; Amendment of appellate decisions. A request for amendment of an appellate decision under the Privacy Act (5 U.S.C. 552a) may be entertained. However, such a request may not be used in lieu of, or to circumvent, the procedures established under Rules 85 through 90 ( 19.185 through 19.190). The Board will review a request for correction of factual information set forth in a decision. Where the request to amend under the Privacy Act is an attempt to alter a judgment made by the Board and thereby replace the adjudicatory authority and functions of the Board, the request will be denied on the basis that the Act does not authorize a collateral attack upon that which has already been the subject of a decision of the Board. The denial will satisfy the procedural requirements of 1.579 of this title. If otherwise appropriate, the request will be considered one for Reconsideration under Rules 85 through
90

(b) Copies of decisions. The index can be used to locate citations to decisions with issues similar to those of concern to an appellant. Each indexed decision has a locator number assigned to it, e.g., 82-07--0001. This number should be used when requesting a paper copy of that decision. These request should be directed to the Appellate Index and Retrieval Staff (01C), Board of Veterans Appeals, 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 the Pennsylvania State Implementation PlanAGENCY: Environmental Protection

Agency.
ACTION: Final rule. SUMMARY: The Commonwealth of

( 19.185 through 19.190). (5 U.S.C.

552a(d); 38 U.S.C. 4003, 4008) 19.200 Rule 100; lnde ,to appellate
decisions.

(a) Index. The appellate decisions of the Board of Veterans Appeals have been indexed to facilitate access to the contents of the decisions (BVA Index 1-01-1). The index is published quarterly in microfiche form with an annual cummulation. It is organized to provide citations to Board of Veterans Appeals decisions under subject terms chosen to describe the issues adjudicated in the appeals. Cases which pertain to the

Pennsylvania has requested a revision to its State Implementation Plan (SIP) to incorporate an alternative emission reduction plan or "bubble." Pennsylvania has requested that the plan be approved by EPA for the Homestead and Edgar Thomson plants of the United States Steel Corporation (USSC) in Allegheny County, Pennsylvania. This plan consists of bubble regulations which apply to sulfur dioxide emissions from ten categories of miscellaneous Homestead sources, the Homestead Open Hearth Furnaces, the Carrie Furnaces boilers (Homestead), and the Edgar Thomson soaking pits and boilers. The plan allows USSC to increase on a temporary basis sulfur dioxide emissions from Carrie boilers Nos. 3 and 4 when the increases are offset by sulfur dioxide reductions at the remaining listed sources due to shutdown or use of natural gas. In support of this bubble, an air quality analysis was conducted. EPA has

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Federal Register

Vol. 55, No. 70 / Wednesday, April 11, 1990 / Rules and Regulatioas
reads "26 CFR 1.6050M-1(d)(5), to make, on the" should read "26 CFR 1.6050M1(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, Commissionerof InternalRevenue. 1989. Approved: November 6, Kenneth W. Gideon, Assistant Secretaryof the Treasury. Dale D.Goode, Chief Regulations Unit,Assistant Chief Counsel(Corporate). [FR Doc. 90-8135 Filed 4-10-90; 8:45 aml
BILUNG CODE 4830-01-M

published in the Federal Register on Wednesday, December 6, 1989 (54 FR 50367) as Treasury Decision 8275. The rules related to compliance with the new reporting requirements imposed by section 60SOM for returns relating to persons receiving contracts from Federal executive agencies.
FOR FURTHER INFORMATION CONTACT:

the provisions of the Regulatory Flexibility Act (5 U.S.C. 605(b)). Drafting Information The drafters of this regulation are Mr. John Wachter, project officer, and Commander J.A. Unzicker, project attorney. List of Subjects in 33 CFR Part 117 Bridges. Regulation In consideration of the foregoing, part 117 of title 33, Code of Federal Regulations, is amended as follows: PART 117-DRAWBRIDGE OPERATION REGULATIONS 1. The authority citation for part 117 continues to read as follows: Authority: 33 U.S.C. 499; 49 CFR 1.46 and 33 CFR 1.05-1(g). 2. Section 117.467(a) is revised to read as follows: 117.467 Lake Pontchartrain (a) The south draw of the Si1 bridge near New Orleans shall open on signal if at least 48 hours 'notice is given. In case of emergency, the draw shall open within 12 hours and shall be kept in condition for immediate operation until the emergency is over. Dated: March 22, 1990. W.F. Merlin, RearAdmiral U.S. Coast Guard,Commander, Eighth Coast GuardDistrict. [FR Doc. 90-8328 Filed 4-10-90 8:45 am]
BILLING CODE 4910-14-"

Keith E. Stanley at 202-566-3367 (not a toll-free number).

SUPPLEMENTARY INFORMATION:.

Background The final regulations that are the subject of these corrections relate to section 6050M, which was added to the Internal Revenue Code by the Tax Reform Act of 1986. Need for Correction As published, the final regulations contain errors which may prove to be misleading and are in need of clarification. Correction of Publication Accordingly, the publication of the final regulations which were the subject of FR Doc. 89-28396, is corrected as follows: Para. 1. On page 50369, in the preamble, first column, line 10, the language "(including into (or treated as entered" is corrected to read "(including their contract actions treated as new contracts entered into (or treated as entered". 1.5060M [Amended] Par. 2. On page 50370, second column, 1.5060M-1(b)(2)(iv) should read: (iv) Certain schedule contracts.For purposes of this section, any of the following contracts entered into on behalf of one or more Federal executive agencies is not a "contract" to be reported by the General Services Administration or the Department of Veteran's Affairs at the time of execution: (A) A Federal Supply Schedule Contract entered into by the General Services Administration, (B) An Automated Data Processing Schedule Contract entered into by the General Services Administration, or (C) A schedule contract entered into by the Department of Veteran's Affairs. Instead, an order placed by a Federal executive agency, including the General Services Administration or the Department of Veteran's Affairs, under such 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

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 the regulations for the Southern Railway Systems south drawspan on Lake Pontchartrain, in Orleans and St. Tammany Parishes, Louisiana, because the drawspan has been replaced with a fixed span. Notice and public procedure have been omitted from this action due to the conversion of the span.
EFFECTIVE DATE:

This regulation

becomes effective on May 11, 1990.

FOR FURTHER INFORMATION CONTACT.

DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 3 RIN 2900-AC54 Procedural Due Process AGENCY: Department of Veterans Affairs. ACTION: Final rule. SUMMARY: The Department of Veterans Affairs (VA) has amended its adjudication regulations on procedural due process for VA claimants and beneficiaries and the eligibility criteria for retroactive awards based on liberalizing laws or administrative issues. These amendments are necessary because of the need for more specificity in VA regulations on procedural due process and because ofa

Mr. John Wachter, Bridge Administration Branch, Eighth Coast Guard District, telephone (504) 589-2065.
SUPPLEMENTARY INFORMATION: This

action has no economic consequences. It merely revokes regulations that are now meaningless because they pertain to a drawbridge span that no longer exists. Consequently, this action is considered to be non-major under Executive Order 12291 and nonsignificant under Department of Transportation regulatory policies and procedures (44 FR 11034, February 26, 1979). Since there is no economic impact, a full regulatory evaluation is unnecessary. Because no notice of proposed rulemaking is required under 5 U.S.C. 553, and because this action will not have a significant impact on a substantial number of small entities, this rulemaking is exempt from

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Federal Register / Vol. 55, No. 70 / Wednesday, April 11, 1990 / Rules and Regulations
VA General Counsel opinion on eligibility for retroactive benefits. The effect of these amendments will be to improve and more clearly define procedural due process rights and retroactive eligibility criteria.
EFFECTIVE DATE: May 11, 1990. FOR FURTHER INFORMATION CONTACT.

13523

Don England, Consultant, Regulations Staff, Compensation and Pension Service, Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 233-3005.
SUPPLEMENTARY INFORMATION: On

pages 37797 through 37801 of the Federal Register of September 28, 1988, VA published proposed amendments to title 38, Code of Federal Regulations, on procedural due process and the eligibility criteria for retroactive awards based on liberalizing laws or administrative issues. Interested persons were given until October 28, 1988, to submit comments, suggestions, or objections to the proposed rules. VA received comments on the proposed rules from the Vietnam Veterans of America and the Puerto Rico Public Advocate for Veterans Affairs. The comments and recommendations with respect to each proposed amendment have been summarized and are set forth below together with the actions and/or responses of VA. Comments and Recommendations Section 3.103 One commenter recommended that the proposed regulation be amended to state that required notices of VA proposed and final actions be sent to a claimant at his or her last known address. VA does not agree that inclusion of this wording in the regulation would provide any additional benefit for VA claimants with regard to their general right to notice of decisions on their claims. Barring an error or a delay in processing a notification of a change of address, all written communications to a claimant are sent to his or her last known address. Insertion of this requirement in VA regulations would not lessen the number of errors or reduce delays. For this reason no changes are being made based on this comment. Since additional protection against erroneous deprivation of benefits would not be afforded to claimants through adoption of this suggestion, the Government's burden in implementing the suggestion is not being discussed. Both commenters recommended a requiremert for VA to furnish a copy of

any notice to a claimant to the properly designated representative of the claimant. The regulatory requirement for furnishing copies of notices to designated representatives is contained in 38 CFR 1.525(d), and inclusion in this section would be redundant. Therefore, no change is being made based on these comments. . One commenter recommended that this section include a requirement that a claimant and his or her properly designated representative be provided notification of submissions from VA regional offices to VA Central Office (VACO) for advisory opinions, administrative reviews, administrative appeals, legal opinions, and medical opinions from VA health care professionals, and that copies of such submissions and resulting replies be routinely furnished to the claimants and representatives prior to decisions being rendered. The commenter states the belief that advisory opinions from the Director, Compensation and Pension Service, are binding on regional office rating boards and Hearing Officers, and that an opportunity to examine and rebut such opinions prior to the decision is required in order to adequately provide procedural due process. The majority of claims processed in VA regional offices are of a routine nature involving relatively simple issues of entitlement, but some claims involve extremely complex and/or novel issues and require application of a variety of laws and regulations. In some cases, due to circumstances arising from the complexity of an issue, a regional office may request an advisory opinion from VACO, a medical opinion, and/or a legal opinion. Administrative reviews and administrative appeals are actions which occur following a decision by a regional office, and therefore, have no relationship to procedural due process within the context of this section. Advisory opinions are advisory only and, while such opinions should be given considerable weight by regional offices in reaching a determination on a particular claim, are not binding on the regional offices. The same is true of medical opinions from VA health care professionals. There is no issue of a lack of opportunity to be heard by the decisionmaker where an advisory or medical opinion has been issued because the decision making authority is retained by the regional office. VA does not believe that due process includes a requirement that such nonbinding advice be communicated to claimants and/or beneficiaries prior to an initial, appealable decision being made. VA believes the appellate process, which

provides Statements of the Case detailing the basis and rationale for a denial of benefits, affords claimants and/or beneficiaries ample opportunity to argue their views. Information from,-or copies of, these opinions or other evidence considered by VA in reaching decisions may be made available to claimants and/or duly authorized agents or representatives under the authority of 38 CFR 1.500 et seq. These regulations also apply to requests for copies of legal opinions, which are an important part of the VA decision making process, and are rendered based on facts of record at the time of the opinion. Legal opinions may be challenged following regional office decisions as part of the appellate process or through the submission of additional evidence. Regulatory requirements for providing detailed reasons for decisions and additional procedural safeguards are also being adopted with publication of this notice concerning proposed benefit reductions. VA finds these regulatory provisions to be adequate to guard against erroneous deprivation of benefits. Marginal gains in that regard, if any, afforded to claimants by the commenter's suggestions would be far outweighed by the costs of implementation to the Government. Such costs would include employee time required to copy and mail documents to claimants and beneficiaries. In addition, decisions would be delayed pending reply or expiration of a period allowed for reply. For these reasons the recommended changes are not being adopted. One commenter recommended requiring that VA include citations of all applicable regulations in notices of proposed or final decisions, and that the reasons for the proposed or final decision include a statement of the exact change in the claimant's circumstances on which the change is proposed or based. VA does not agree that the recommended changes would provide any additional benefit for VA claimants with regard to their general right to notice of decisions on their claims. The recommended changes would require VA to include detailed statements and regulatory citations on favorable as well as unfavorable decisions. Clearly, there is no risk of erroneous deprivation with favorable decisions, and the suggested changes provide no additional protection to successful claimants while being extremely burdensome on the Government in terms of the impact on automated claims processing and timeliness of decisions. Implementation

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perception of confusion, we have agreed to the recommendation and have inserted a reference to the exceptions in the final rule. One commenter made recommendations regarding each of the first three exceptions to the requirement for pretermination/reduction notifications as proposed in 3.103(b)(3). It was recommended that the exception for benefit checks returned as undeliverable be for application only following reasonable efforts to obtain a more current address through a search of all filing systems maintained by VA. Upon further review of existing rules regarding the circumstances covered by this exception, the exception has been deleted from the final rule and the remaining subparagraphs renumbered accordingly. The provisions of 38 CFR 1.710 specify that VA benefits may not be denied on the basis of lack of a mailing address and state actions to be taken upon return of benefit payments which are undeliverable to the address of record in VA. The same commenter took exception to VA not being required to furnish pretermination/reduction notices to claimants where the adverse action resulted from information provided by the claimant with what the commenter called a presumption by VA of the claimant's knowledge that such information would be used to calculate entitlement to benefits. The commenter's concern arose because of alleged small print and confusing wording used by VA to notify claimants of their responsibilities while receiving VA benefits. The commenter did not feel that furnishing of such notices should result in a presumption of the claimant's knowledge by VA. VA administers several disability programs to millions of beneficiaries throughout the world. We realize that laws and regulations governing the payment of benefits by VA are, in some cases, quite complex. This proposed exception is limited to information which is numerical in nature such as changes in income and number of dependerits. We attempt to communicate these relatively simple rules to the recipients of VA benefits through written comments and instructions which we feel adequately explain their responsibilities under the law and regulations. Evidence of record which establishes that claimants have been given such notice should, in our view, result in those claimants being presumed to have knowledge of the effects of certain numerical changes in circumstances which he or she reports to VA.

of the suggested changes would virtually eliminate current ability to notify claimants and beneficiaries through our current means of automated data processing and would require transcription of dictated notifications of decisions on all disability claims. The same burden on the Government would be experienced with unfavorable decisions while little, if any, additional protection against erroneous deprivation of benefits would be afforded to claimants by the recommended changes, Under current rules unsuccessful claimants are provided with a statement of the reasons for the decision which is sufficient to allow the claimant to decide whether to challenge the decision through the VA appellate process. If a notice of disagreement is filed within a year of notification of the adverse decision, a Statement of the Case is provided to the claimant which sets forth the detailed reasons for the decision and the applicable regulatory citations. The recommended changes would essentially require that a Statement of the Case be provided along with every decision on every claim. VA believes that the requirements of due process are more than satisfied when such a procedure is followed only with respect to challenged decisions. Detailed reasons and additional procedural safeguards are also being adopted with publication of this notice concerning proposed benefit reductions. For these reasons the recommended changes as to content of notices are not being adopted. Also recommended was the addition of a requirement for VA to provide notice of the availability for review of VA regulations, procedural manuals, instructions and guidelines and a requirement for VA to maintain public reading facilities for this purpose at all its offices. Notice of availability for review of the publications mentioned is contained in 38 CFR 1.552, with regulatory requirement for maintenance of public reading facilities contained in paragraph ( ) of that section. Therefore, inclusion in this section would be redundant and no change is being made based on these comments. One commenter stated that the introductory phrase "Except as otherwise provided" appearing in the proposed revision of 3.103(b)(2) is confusing, and a reference to the exceptions should be included. While we do not agree that the cited phrase is confusing or that the suggested change provides additional procedural safeguards, we do acknowledge that there is no burden on the Government in making such a change. Since the recommended change will eliminate a

VA is aware that, due to individual circumstances, this presumption of knowledge may not be valid for all beneficiaries. We further realize that the proposed exception is not so precise as to preclude any possibility of erroneous deprivation of benefits through its implementation. VA is, however, of the opinion that the exception as proposed, when applied to the generality of cases, meets the burden of the Government with regard to due process procedures. To implement the suggested change would be to assume that written instructions furnished by VA regarding the information covered in this exception is not understood by many beneficiaries. VA feels this to be an illogical assumption. In addition, the elimination of this exception would be extremely burdensome on the Government in terms of the impact on human resources, automated claims processing, and timeliness of decisions. For these reasons, the recommended changes in this exception based on information provided by claimants or beneficiaries are not being adopted. It was also recommended that the proposed exception regarding failure to return required eligibility verification reports only apply when VA can produce a dated file copy of a letter of transmittal showing a report was mailed to the beneficiary's last known address, with a copy to the address of any properly designated representative. VA does not agree with this recommendation because we feel elimination of the proposed exception would provide little, if any, protection against erroneous deprivation of benefits. Eligibility verification reports are self-contained reporting forms which are furnished to claimants for reporting of information required to confirm continuing entitlement to VA benefits being paid at the time the report is requested. The forms used for reporting are produced and mailed through the same VA automated data processing system used to issue benefit payments to beneficiaries at their last known address. A computer control for confirmation of return of the form is established at the time the form is mailed. Cover letters are generally not required for mailing and therefore, no file copy is available. VA finds the current procedures adequate to guard against erroneous deprivation of benefits in the vast majority of cases. Additional protections, if any, afforded to claimants by the commenter's suggestion would be far outweighed by the costs of implementation to the Government. Such costs would include purchase of

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Federal Register / Vol. 55. No. 70 / Wednesday, April 11, 1990 / Rules and Regulations additional printing equipment for printing of file copies of letters and human resources to file these copies in individual files of beneficiaries. For these reasons the recommended changes are not being adopted.. One commenter recommended that those claimants who are unemployed and/or in receipt of VA pension benefits, or raising issues regarding VA pension eligibility, be reimbursed for travel expenses to and from a hearing site in the same manner and at the same rate as for travel in connection with physical examinations for disability evaluations. The commenter further recommended that the proposed right to a hearing shown in 3.103(c) be amended to include a claimant's Tight to a hearing at any VA facility, or through telephonic or two-way televised arrangements in certain circumstances. It is the duty of VA to make personal hearings reasonably available. Current rules provide such availability in facilities located at each of the VA regional offices having adjudicative functions. Hearings are held so that claimants and beneficiaries have an opportunity to present oral testimony or other evidence in support of their claims. Such evidence can also be presented to VA through submission of affidavits or other written documents. The current rules regarding personal hearings, as well as the availability of alternative methods for submission of evidence, meet the Government's responsibility of providing procedures which guard against erroneous deprivation of benefits to claimants and beneficiaries. In order to implement the suggested changes, VA would be required to reimburse travel expenises, provide "roving" hearing officials, purchase equipment capable of offering recorded two-way televised or telephonic communications, and hire personnel with the ability to operate and maintain such equipment. VA is of the opinion that this added burden on the Government would not be justified by the marginal gains, if any, which might. be realized in guarding against erroneous deprivation of benefits. For these reasons the recommended changes are not being adopted. The recommendation was also made to specifically require that hearings be held before VA personnel who would decide the issues raised, or in the alternative, that personnel who hold the hearing but do not make the decision be required to provide written assessment of the credibility of all witnesses as part of the hearing record. . In the majority of cases, hearings are held before VA personnel who
ultimately decide the issues raised. However, in certain circumstances such is not the case. Specific circumstances include, but are not limited to, hearings held in conjunction with an employee's benefits claim at the office of employment followed by decision rendered by the office having jurisdiction of the claims file, cases involving prolonged absence of a Hearing Officer following a hearing, and requests to have hearings held at regional offices other than the office having jurisdiction of the claims file for convenience of the claimant and/or representative. Implementation of the suggested change would remove all flexibility from VA regarding the scheduling of personal hearings and management of pending workloads in this area, and in some cases would actually result in VA inability to provide hearings under circumstances requested by claimants and/or representatives. Witness credibility is important but not dispositive of an issue; in any event, it typically can be ascertained from a reading of the hearing transcript in the context of the evidentiary record. VA should not be bound by a subjective opinion of an employee regarding witness credibility, but should rely on the content of the hearing transcript in conjunction with the other evidence of record in reaching a determination on the claim at issue. Moreover, the case law to date reveals there is no due process requirement that an assessment be made of a witness' credibility regardless of whether the decisionmaker is the person(s) who conducted the hearing. VA feels the current rules, which allow flexibility in the scheduling process, allow for adequate procedures to guard against the erroneous deprivation of benefits and that the suggested changes would not provide improvements toward that end. Therefore, the recommended changes are not being adopted. One commenter recommended that proposed 3.103(c)(2) be amended to provide notice of the VA authority to issue a subpoena under 38 U.S.C. 3311 and insertion of a cross reference to the controlling regulation, 38 CFR 2.1. Proceedings before VA are nonadversarial in nature. They are a combined effort to develop the true facts in each case, and VA has an obligation to assist claimants and beneficiaries in that regard. The extent of that assistance includes the authority to issue subpoenas -under 38 CFR 2.1(a), The use of this authority is discretionary with VA. In addition to the redundancy which would be created by repeating VA

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authority to issue subpoenas in this section, VA believes such repetitiveness would result in the misconception that subpoenas are issued routinely to obtain evidence when, in fact, such issuance by VA is rare. Before the authority is exercised, it must first be determined that such issuance is necessary and that the evidence being sought cannot be obtained in some other way. Alternative methods of obtaining the evidence almost always exist and these methods vary depending on the nature of the evidence being sought. For these reasons the recommended changes are not being adopted. One commenter recommended that the proposed revision of 38 CFR 3.103(e) regarding the right to representation provide that failure of VA to furnish copies of notifications to properly designated representatives of claimants would extend any applicable time limits for actions by those claimants. This comment is being addressed in the section covering 38 CFR 3.109, where a similar suggestion was provided by the same commenter. Section 3.105 Both commenters recommended that the proposed revision referring to a beneficiary's right to a predetermination hearing be amended to require a fixed period of time between the VA notice of the scheduled hearing date and the date of the hearing. One commenter recommended that a period of at least 10 days be specified in the regulation to allow time for hearing preparation. The proposed rule uses the term "reasonable time" to allow flexibility in the scheduling process. At times, based on certain circumstances, expeditious hearings are requested or agreed to by beneficiaries and/or their representatives. In the absence of such a request or prior agreement, a hearing scheduled less than 10 days in the future would be an extremely rare occurrence. Such rarity is dictated by large pending hearing schedules. Occasionally, because of a cancellation, a time slot becomes available, and this slot is filled either with someone who has expressed a desire for an expeditious hearing or someone who has agreed to such a hearing -when informed of the availability. VA has always been agreeable to extensions of hearing dates upon request if good cause is shown, and VA is of the opinion that implementation of the proposed suggestion would provide little, if any, additional protection against erroneous deprivation of benefits. However, since no burden will be placed on the Government, we are

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reply or expiration of a period allowed for reply. Evidence obtained by VA following a hearing is usually obtained at the request of the beneficiary and/or representative of the beneficiary. Information from, or copies of, evidence considered by VA in reaching decisions may be made available to beneficiaries and/or duly authorized agents or representatives under the authority of 38 CFR 1.500 et seq. Evidence for purposes of rebuttal can be submitted within the one-year period following the decision on the claim either through the appeal process or through a reopening of the claim, thereby affording ample opportunity for submission of such evidence. Regulatory requirements for providing detailed reasons for decisions and additional procedural safeguards are also being adopted with publication of this notice concerning proposed benefit reductions. VA finds these regulatory provisions to be adequate to guard against erroneous deprivation of benefits. Marginal gains in that regard, if any, afforded to beneficiaries by the commenter's suggestions would be far outweighed by the costs of implementation to the Government. For these reasons the recommended changes are not being adopted. Section 3.109 One commenter noted that in the preamble to the proposed amendment VA admitted the wording of 3.109(b) is "inappropriate with respect to due process," and the effective date of the amendment should be the date the "inappropriate" wording first appeared in the regulation. The effective date of the amendments contained in this notice will be as shown in the beginning of this notice. VA believes the amendment to the rule to be a liberalizing measure that should have only prospective application in claims processing. Procedural regulations are amended from time to time to recognize developing concepts of due process. In so doing, VA does not concede that prior procedures necessarily resulted in deprivation of protected rights in individual claims. In view of the burden which would be involved in searching the many thousands of claim decisions made under the prior regulation, VA does not believe it would be a productive use of resources to attempt to determine whether any claimant may have been disadvantaged by failure to receive notice of a time limit. One commenter recommended that the proposed revision allow for the extension of any time limit when VA fails to notify a claimant's properly designated representative. It was also' recommended that the regulation specify that'an allegation of nonreceipt of notification of a time limit will be substantiated by VA inability to produce a file copy of such notification showing it was sent to the claimant, at his or her last known address, and the claimant's properly designated representative. We have reviewed the purpose of the regulation in light of this comment and believe that a modification consistent with that purpose is in order. By amending this regulation it is the intent of VA to ensure, to the. maximum extent practicable, that notice of any time limit within which a claimant or beneficiary must act, to perfect a claim or challenge an adverse VA decision, is effectively communicated.to that claimant or beneficiary. Ineffective notice is tantamount to no notice. Thus, there will be circumstances in which good cause for extension of time limits exists. For example, the failure to provide notice to a claimant or beneficiary would clearly be good cause for extending the time limits for action. Since it is not possible to delineate all of the fact situations which could reasonably give rise to a finding of good cause for extension of time limits, VA has determined that each claim for time limit extension should be adjudicated on its own merits. Extension of time limits for good cause shown is a concept that has been adopted by other Federal agencies, notably the Department of Health and Human Services (20 CFR 404.909) and the Office of Personnel Management (5 CFR 1201.12 and 1201.22). The concept has also been refined by case law. VA has traditionally been quite reasonable in extending time limits when requests for such extensions are received prior to expiration of the time limits involved. Once a time limit has expired, however, it is no longer reasonable to grant simple requests for extension of time. On the other hand, if a claimant or beneficiary takes the action which was required to have been taken within the previously established time limit and also shows good cause why the period of the time limit should be extended to cover the taking of that required action, consideration of the special circumstances should be afforded. . Accordingly, VA has revised 382CFR 3.109[b)to provide that time limits for actions on the part'of claimants or beneficiaries may be extended for good cause shown. Where an extension is requested after a time limit has expired,

amending the final rule to implement the suggested change with a stipulation that the time period may be waived through agreement between VA and the beneficiary or representative. One commenter recommended that the proposed regulation should be amended to provide for a delay of the final decision by VA where a predetermination hearing was requested by a beneficiary but was not held due to circumstances beyond control of the beneficiary. Health problems, including hospitalization, were indicated as an example of such circumstances. VA has consistently applied procedures to recognize that delays in actions by beneficiaries may arise due to circumstances beyond their control. While we do not believe that inclusion of the suggested wording in the final regulation will provide any additional procedural safeguards against erroneous deprivation of benefits, we do acknowledge that there is no burden on the Government in making such a change. Since the recommended change will provide regulatory authority for long established adjudicative procedure, we have agreed to the recommendation and have included the phrase "without good cause" in the final rule together with examples of what would constitute such circumstances. One commenter recommended that the proposed regulation be amended to require that evidence obtained pursuant to development by VA following a predetermination hearing be made available to the beneficiary and any properly designated representative in advance of the final decision. This would afford an opportunity for rebuttal of that evidence prior to VA reaching a decision on the issue. VA does not agree that the recommended changes would provide any additional benefit for VA beneficiaries with regard to their right to fundamental fairness in reaching decisions on their claims. The recommended changes would require VA to routinely provide copies of requested evidence, and to provide opportunity for rebuttal in all cases including those which would be decided favorably to the beneficiary under the rules as proposed. Clearly, there is no risk of erroneous deprivation with favorable decisions, and the suggested changes provide no additional protection to successful beneficiaries while being extremely burdensome on the Government in terms of the impact on limited human resources and timeliness of decisions. Employee time would be required to copy and mail documents to beneficiaries and decisions would be delayed pending

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Federal Register / Vol. 55, No. 70 / Wednesday, April 11, 1990 / Rules and Regulations the action required of the claimant or beneficiary must be taken concurrent with or prior to the filing of a request for extension of the time limit, and good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner than it was. A favorable decision on the extension issue would automatically make the taking of the required action timely. Denials of such extensions would be separately appealable issues. Section 3.110 One commenter recommended that the proposed revision be amended to specify that the beginning date of any time limit period be the date of the postmark on the envelope rather than the date on the letter of notification. The commenter states this would alleviate penalizing a claimant due to delays in mailing of the notification by VA. All time limits established by VA regulations are computed from the date of the letter of notification. The date of the letter of notification is known by VA, whereas the date of the postmark is not. VA is of the opinion that its established time limits are generous. Even allowing for a delay of a few days for mail delivery, these limits provide. ample time for claimants to perfect claims and appeals, and thus provide adequate protection against erroneous deprivation of benefits. For these reasons no changes are being made based on this comment.
Section 3.114

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has determined that these regulatory amendments are non-major for the following reasons: (1) They will not have an annual effect on the economy of $100 million or more. (2) They will not cause a major increase in costs or prices. (3) They will not have significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic or export markets. The Catalog of Federal Domestic Assistance program numbers are 64.100,
64.101, 64.104, 64.105, 64.106, 64.109, and 64.110.

List of Subjects in 38 CFR Part 3 Administrative practice and procedure, Claims, Handicapped, Health care, Pensions, Veterans. Approved: March 20, 1990. Edward J.Derwinski,
Secretary of Veterans Affairs.

38 CFR part 3, Adjudication, is amended as set forth below: PART 3-[AMENDED] 1. Section 3.103 is revised to read as follows:
3.103 Procedural due process and appellate rights.

No comments were received regarding the proposed amendments to this section. We appreciate the comments and suggestions of those who responded to publication of the proposed rules. The proposed rules are adopted with the amendments noted above and minor conforming amendments of a technical nature. The final rules are set forth below. The Secretary hereby certifies that these regulatory amendments will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. The reason for this certification is that these amendments would not directly affect any small entities. Only VA beneficiaries could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b),
these amendments are exempt from the

initial and final regulatory flexibility analysis requirements of sections 603

and 604.

In accordance with Executive Order 12291, Federal Regulation, the Secretary

(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 representation. Proceedings before VA are ex parte in nature, and it is the obligation 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 supported in law while protecting the interests of the Government. The provisions 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 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 initiate an appeal of the decision. notice. (2) Pretermination/reduction Except as otherwise provided in paragraph (a)(3) of this section, no

award of compensation, pension or dependency and indemnity compensation shall be terminated, reduced or otherwise adversely affected unless the beneficiary has been notified of such adverse 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. Pretermination/ reduction notice is not required but notice contemporaneous with the adverse action is required when: (iJ An adverse action is based solely on written, factual, unambiguous information as to income, net worth, dependency or marital status provided by the beneficiary or his/her fiduciary with knowledge or notice that such information would be used to calculate benefits, and the legal standards applied to this information are numerical in nature, (ii) An adverse action is based upon the beneficiary's or fiduciary's failure to return a required eligibility verification report, or (iii) Evidence reasonably indicates that a beneficiary is deceased. However, in the event that VA has received a death certificate, a terminal hospital report verifying the death of a beneficiary or a claim for VA burial benefits, no notice of termination (contemporaneous or otherwise) will be required. (c) The right to a hearing.(1) Upon request a claimant is entitled to a hearing at any time on any issue involved in a claim within the purview of part 3 of this chapter. VA will provide the place of hearing in the VA office having original jurisdiction over the claim or at the VA office nearest the claimant's home having adjudicative functions, and will provide VA personnel 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 VA personnel having original determinative authority 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 claimant is entitled to produce witnesses and all testimony will be under oath or affirmation. The purpose of a hearing is to permit the claimant to introduce into the record in person any available evidence which the claimant may consider material and any

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which a 60-day period from the date of notice to the beneficiary of the final rating action expires ... (Authority: 31 U.S.C. 3012(b)(6)) (e) Reduction in evaluationcompensation. Where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would xesult in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction -or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to 'show that compensation payments should be continued at their present level. Unless otherwise provided in paragraph (h) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a '60-day period from the date of notice to the beneficiary of the final rating action expires. (Authority: 38 U.S.C. 3012(b)(6)) beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and ,willbe given 00 days for the presentation of additional 'evidence to -how that the benefits shuld be continued at their present level Unless otherwise provided in paragraph [h) of this section, if additional evidence is not received within that period, 'final adverse action will be taken and the award will be reduced or discontinued effective as specified under the provisions of 3.500 through 3.503 of this part. (Authority: 38 US.C. 3012)

arguments and contentions with respect to the facts and applicable law which the claimant may consider pertinent. 1t is the responsibility of the VA personnel conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position. To assure clarity and completeness of the hearing record, questions which are directed to the claimant and to witnesses are to be framed to explore fully the basis for claimed entitlement rather than with an intent to refute evidence or to discredit testimony. In cases in wfich 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. (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 Taise 'and any contentionor argument a claimant may offer with respect thereto are to be included in the records. (e) The i'ght -torepresention. Subject to the provisions of 11 14;626 through 14C637 of this title, claimants are entitled to representation of their choice at every stage in the prosecution of a claim. (f) Notiftcatfon of decisions. The claimant or beneficiary will be notified in writing of decisions affecting the payment of beiefits or granting relief. Notice will include the reason for the decision and the date it will be effective as well as lhe right to a hearing'subject to paragraph (c) of this section. The notification will also advise the 'laimant or beneficiary of the zight to initiate an appeal by filing a Notice of Disagreement which will entitle the individual to a Statement of the Case for assistance in perecting an appeal. Further, the notice wili advise him or her of the periods in which an appeal must be initiated and perfected. (See part 19. subpart B, of this chapter, on appeals.) 2. Section 3.1105 is amended by revising the last sentence in paragraph (d), paragraphs jej and 1). and adding paragraphs W and t{h to read as follows: 3.105 'ReVislon of decision.

(d)* Unless o'therwise provided" in pagrap N of this section if

.

additioa vidence 'is not r6ceiv'ed within that period,' a] ratingaction will be taken 'ai'd Th* award*will be' reduced or discontinued, ifin order, effective the ]ast day of the montl in

hearings.I1) In (h) Predetermination the advance written notice concerning proposed actions under paragraphs 1d) through 'g] of'this section, the beneficiary will be informed that he or she will have an opportunity for a predetermination hearing, provided that a request for such a hearing is received by VA -ithin S0 days from 'the date of the notice. If a timely request is received, V.A Wil notify the beneficiary in writing of the time and place of the hearing at least 10 days in advance of the scheduled hearing date. The I0Dday advance notice maybe waived by agreement between VA and the (f) Reduction in evaluation-pension. beneficiary or representative. The hearing will be conducted by VA Where a change in disability or personnel who did not participate in the employability warrants a reduction or proposed adverse action and who will discontinuance ,of pension payments bear the decision-making responsibility. currently being made, a rating proposing If a predetermination hearing is timely the reduction or discontinuance will 'be requested, benefit payments shall be prepared seting forth all material facts continued at the previously established and reasons. The beneficiary will be level pending a final determination notified at 'his or her latest address of concerning the proposed action. record of the contemplated action and (2) Following the predetermination furnished detailed reasons therefor, and procedures specified in this paragraph will be given So days Ifor the and paragraph (dJ, fej, if) or {g) of this presentation onf additional evidence to section, whichever is applicable, final show that pension benefits should be action will be taken. If a continued at their present level. Unless predetermination hearing was not otherwise provided in paragraph 1h) of requested or if the beneficiary failed this section, if additional evidence is not without good cause to report for a received within that period, final rating scheduled predetermination hearing the action -will be taken and ithe award will final -actionwill be based solely upon be reduced or discontinued effective the the evidence of record. Examples of last day of the month in which the final good cause include, but are not limited rating action is approved. to, the illness or hospitalization of the (Authority. 38 -US.C. 3012(b)(5)) or claimantu benefiiax3, death of an (g) Other reductians/dscontinvances. immediate family member, etc. If a Except as otherwise specified at predetermination hearing was 3.103(bli3J of this par, ,where a conducted, -thefinalactionill be baed reduction or discontinuance ofbenefits on evidence antitestimonyadducedatthe 'hearing as well as -the other evidence of. is warranted b y reason of information received concerning income, net worth, record including any additional evidence, dependency, or marital or other status, a obtained following the hearing purstant. proposal -forthe reduction or to necessary development. Whether or discontinuance will be prepared setting not a predetermination hearing was forth all material facts and reasons. The conducted, a written notice of the final

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Federal Register / Vol. 55, No. 70 / Wednesday, April 11, 1990 / Rules and Regulations action shall be issued to the beneficiary, setting forth the reasons therefor and the evidence upon which it is based. Where a reduction or discontinuance of benefits is found warranted following consideration of any additional evidence submitted, the effective date of such reduction or discontinuance shall be as follows: (i) Where reduction or discontinuance was proposed under the provisions of paragraph (d) or (e) of this section, the effective date of final action shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires. (i) Where reduction or discontinuance was proposed under the provisions of paragraph (f) of this section, the effective date of final action shall be the last day of the month in which such action is approved. (iii) Where reduction or discontinuance was proposed under the provisions of paragraph (g) of this section, the effective date of final action shall be as specified under the provisions of 3.500 through 3.503 of this part.
(Authority: 38 U.S.C. 3012)r the time limit would expire on a Saturday, Sunday, or holiday, the next succeeding workday will be included in the computation. (b) "The first day of the specified period" referred to in paragraph (a) of this section shall be the date of mailing of notification to the claimant or beneficiary of the action required and the time limit therefor. The date of the letter of notification shall be considered the date of mailing for purposes of computing 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 as follows: 38 CFR Parts 3, 21 RIN 2900-AE05

13529

Veterans Education; Disabling Effects of Chronic Alcoholism AGENCY: Department of Veterans Affairs. ACTION: Final regulations. SUMMARY: The Veterans Benefits and Programs Improvement Act of 1988 provides among other things that for the purposes of any provision relating to the extension of a delimiting period under any education benefit or rehabilitation program administered by the Department of Veterans Affairs, the disabling effects of chronic alcoholism shall not be considered to be the result of willful misconduct. These final regulations will inform the public of the way in which the Department of Veterans Affairs (VA) will implement this provision of law with respect to the Post-Korean Conflict GI Bill. The change to 38 CFR 3.301(b) is made to conform to a provision of the Veterans' and Survivors' Pension Improvement Act of 1978. EFFECTIVE DATE: The effective date of the amendment to 3.301(b), is April 11, 1990. The effective date of all other amended regulations, like the provision of law they implement,is November 18, 1988.
FOR FURTHER INFORMATION CONTACT:

3.114 Change of law or VA Issue.

(a) Effective dote of award.Where pension, compensation, or dependency and indemnity compensation is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. In order to b6 eligible for a retroactive payment under the provisions of this paragraph the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. The provisions of this paragraph are applicable to original and reopened claims as well as claims for increase. (1) If a claim is reviewed on the initiative of VA within 1 year from the effective date of the law or VA issue, or at the request of a claimant received within 1 year from that date, benefits may be authorized from the effective date of the law or VA issue. (2) If a claim is reviewed on the initiative of VA more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of administrative determination of entitlement. (3) If a claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior.to the date of receipt of such request. (Authority: 38 U.S.C. 3010(g))

3. In 3.109, paragraph (b) is revised and an authority citation is added, to read as follows;
3.109 Time limit.
* * * * *

(b) Extension of time limit. Time limits within which claimants or beneficiaries are required to act to perfect a claim or challenge an adverse VA decision may be extended for good cause shown. Where an extension is requested after expiration of a time limit, the action required of the claimant or beneficiary must be taken concurrent with or prior to the filing of a request for extension of the time limit, and good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner than it was. Denials of time limit extensions are separately'appealable issues. (Authority: 38 U.S.C. 210(c))
4. Section 3.110 is revised and an authority citation is added, to read as follows:

June C. Schaeffer (225), Assistant Director for Education Policy and Program Administration, Vocational Rehabilitation and Education Service, Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 233-2092.
SUPPLEMENTARY INFORMATION: On

3.110 Computation of time limit (a) In computing the time limit for any action required of a claimant or beneficiary, including the filing of claims or evidence requested by VA, the first day of the specified period will be excluded and the last day included. This rule is applicable in cases in which the time limit expires on a workday..Where

IFR Doc. 90-8279 Filed 4-10-90: 8:45 amj

BILUNG CODE $320-01-M

pages 31950 through 31952 of the Federal Register of August 3, 1989, there was published interim regulations with a request for public comment which are part of part 3, 38 CFR and part 21, 38 CFR. Section 3.301(b) is corrected to conform to a provision of Public Law 95588 which amended 38 U.S.C. 521 to delete a reference to "vicious habits." The remainder of these regulations implemented section 109 of the Veterans Benefits and Programs Improvement Act of 1988 (Pub. L. 100-689). That section states that for the purposes of extending the eligibility period for educational assistance under any of the educational laws or vocational rehabilitation laws administered by the Department of Veterans Affairs, the disabling effects of chronic alcoholism will not be

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'20144

Federal Register / Vol. 55, No. 94 / Tuesday, May 15, 1990 / Rules and Regulations
is acceptable within the banking community as a means of identification when cashing checks for nondepositors, and shall record the specific identifying information on the log (e.g., State of issuance and number of driver's license). '(b) Contemporaneous purchases of the same or different types of instruments totaling $3,000 or more shall be treated as one purchase. Multiple purchases during one business day totaling $3,000 or more shall be treated as one purchase if an individual employee, director, officer, or partner of the financial institution has knowledge that these purchases have occurred. Multiple sales must be noted as such on the log. (c) The financial institution may maintain a single centralized chronological log or it may maintain separate chronological logs by branch. A financial institution also may keep a separate chronological log for each type of instrument sold. If the financial institution maintains a separate chronological log or logs for each branch, all of the branch logs for a calendar month must be sent to a centralized location by the fifteenth (15th) day after the end of the calendar month for which the log was compiled. Financial institutions with branches in more than one State may centralize the logs by State. A list of the centralized locations and branches shall be available to the Secretary upon request. (d) Chronological logs shall be retained by the financial institution for a period of five years. (e) The chronological logs shall be available to the Secretary upon request at 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

accountholder's name and address were verified at the time the account was opened, or at any subsequent time, and that information was recorded on the signature card or other file or record; or by examination of a document that contains the name and address of the purchaser and normally is acceptable within the banking community as a. means of identification when cashing checks for nondepositors. If the deposit accountholder's identity has not been verified previously, or if the financial institution is unable to determine whether the individual's identification had been verified previously, then the financial institution shall verify the deposit accountholder's identity'by examination of a document that contains the name and address of the purchaser and normally is acceptable within the banking community as a means of identification when cashing checks for nondepositors, and shall record the specific identifying information on the log (e.g., State of issuance and number of driver's license). The method of verification used shall be noted on the log. (2) If the purchaserdoes not have a deposit account with the financial institution: (i)(A) The name and address of the purchaser, (B) The social security number of the purchaser, or if the purchaser is an alien and does not have a social security number, then the alien identification number; (C) The date of birth of the purchaser (D) If the individual is purchasing the instrument(s) on behalf of another perpon. the name of the person on whose behalf the instrument is being purchased and the account number of that third party; if there is no account number, then the name, address and social security number, as well as the taxpayer identification number, or alien identification 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's checks and bank checks and drafts); and (K) The amount of the purchase in currency. (ii) In addition, the financial institution shall verify the purchaser's name and address by examination of a document that contains the name and address of the purchaser and normally

SUMMARY:

The Department of Veterans

Affairs (VA) is issuing final regulatory amendments concerning the consideration of additional evidence, hearing requests, and requests for changes in representation following the certification and ttansferof an appeal to the Board of Veterans Appeals (BVA). These amendments set limits on the time in which these items may be submitted and are necessary to ensure the timely processing of appeals.
EFFECTIVE DATE: These

rules are

effective June 14, 1990.

FOR FURTHER INFORMATION CONTACT:

DEPARTMENT OF VETERANS AFFAIRS 38 CFR Parts 3 and 19 RIN 2900-AD14 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 AGENCY: Department of Veterans Affairs. ACTION: Final rules.

Mr. Jan Donsbach, Special Legal Assistant to the Chairman (01C), Board of Veterans Appeals, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 2332978. SUPPLEMENTARY INFORMATION: On July 6, 1989, VA published in the Federal Register (54 FR 28445) a notice proposing amendment of 38 CFR 19.174 to add a cutoff date following which an appellant cannot submit a request for a change in representation and an appellant and/or representative cannot submit additional evidence or a request for a personal hearing in a case which has been transferred to the BVA for appellate consideration. Provision was made for accepting evidence and requests at a later date when good cause is shown. Related revisions to 38 CFR 3.103(c), 3.156(a), and 3.160(e) were proposed to insure that effective dates for subsequent awards, if any, are preserved when evidence is submitted too late for the BVA to consider in an appeal. VA received 12 comments on the proposed rules-two from VA employees, two from a service organization and allied legal services organizations, seven from private attorneys-at-law, and one from a County Executive. Several commenters objected to the objective of these amendments-setting a cutoff date for submitting additional evidence and requests for a change in representation and hearings following transfer of appeals to BVA. Two voiced general opposition, but gave no reasons for their objections. Some commenters suggested that the need for the restrictions in these amendments had not been adequately addressed in view of the perceived burdens which they impose. Others expressed general concern about an abridgment of rights. One commenter asserted that the proposed regulation gave the Chairman "extraordinary power to refuse to accept any new evidence, refuse to allow a

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Vol. 55, No. 94 / Tuesday, May 15, 1990 / Rules and Regulations
process. As a result, the appellate record can be a constant state of change while Members of the Board of Veterans Appeals are
deliberating on the appeal. Confusion can

20145

change in the power of attorney, and refuse to allow a personal appearance hearing." One commenter asserted that extensive development was sometimes necessary in cases where appellants had not been represented at the local level, particularly in cases involving mentally ill appellants; cited possible problems in timely coordination of the efforts of local and appellate representatives when an appellant had been represented in the field; alleged that appellants were not notified when appeals were transferred to the Board; voiced concern about the inability to build a full appellate record for the consideration of the United States Court of Veterans Appeals expressed concern about possible delays occasioned by the time necessary to rule on "good cause" motions and by the necessity to remand cases for additional development; and alleged that the proposed amendments would deprive appellants of rights accorded under chapter 71, title 38, United States Code and 38 CFR 3.103 and 19.150. One commenter felt that many appellants would not know of the restrictions. Another commenter expressed concern about appellants who may only become aware of their rights at a very late date and inquired as to the effect of the death of a representative following the cutoff date. Two other commenters expressed concern about the possible effect of the cutoff date with respect to mentally ill appellants. One commenter alleged that the changes were an attempt by the BVA to eliminate de novo review; that the period proposed did not allow representatives an adequate amount of time to review the record and consult with their clients, particularly in cases where transfer of the appellate record to the BVA might have been delayed; that the proposed rules were unclear about the submission of new evidence in cases where a timely request for'a hearing had been entered; that the necessity to protect rights by filing a timely hearing request would result in the unnecessary scheduling of hearings; and that there would be unnecessary delays occasioned by the processing of requests to submit evidence, change representation, and conduct hearings. This commenter concluded that these amendments would serve to deny the "effective assistance of counsel." The supplementary information provided with the notice of proposed rulemaking notes the following with respect to the need for these changes: Under existing procedures, an appellant may continue to submit additional evidence and may submit requests for a personal hearing or for a change in his or her representative throughout the appellate

primarily due to such problems.) At the

sometimes result as to the exact nature of the record reviewed by the Board. Particularly *with the advent of judicial review (see Pub. L. 100-687), it is essential that a point be reached at which the appellate record is fixed. In addition, considerable delay can result when it is necessary to remove an appellate record from the hands of those who are engaged in an orderly appellate review in order to respond to various tardy requests and submissions. The proposed changes would assist in orderly and prompt appeal processing and would help to clarify the nature and extent of evidence considered by the Board in reaching a decision in any given appeal. The factors addressed in these remarks are not inconsequential. The BVA is well aware of the hardship imposed on appellants when action by the Board is delayed and is deeply concerned about the length of time which it takes to process an appeal after the case is transferred to the BVA (averaging approximately 165 days during the third quarter of fiscal year 1989). Tardy action by appellants and their representatives contributes to this extended processing time. It produces delays not only in their own individual cases, but delays in processing the appeals of the majority of appellants who are diligent in the prosecution of their appeals because of the time of Members of the Board and of the BVA's administrative staff which is wasted. Unfortunately, some appellants and, to a lesser extent, representatives indulge in not just one late request, but many. When late requests are received, the transfer of a case to Board Sections for deliberation and preparation of a decision must be delayed or appeals must be removed from the hands of members of the BVA professional staff who are assisting in the preparation of written decisions or from the hands of Members of the Board who are deliberating on the case in order to respond. In some cases, needless hours must be spent in revision of decisions which have already been prepared due to the late submission of evidence. The deliberation of Board Members must often begin anew because familiarity with the record has been lost by the time the record has been returned. Requests and added evidence may be received in the field or at the BVA so late that, by the time the request or additional evidence can be associated with the record, a BVA decision has already been promulgated. It may then be necessary to vacate the decision and begin again. (Seventy-three decisions were vacated during fiscal year 1989,

least, it may be necessary to issue a supplemental decision. In short, aside from the self-evident administrative efficiency which these changes bring about, they serve to assist the Board in providing justice to appellants with the deliberate speed to which they are entitled. One commenter suggested that these
amendments were not necessary

because Board Sections do not act on appeals until late in the period of time during which cases are at the BVA. This begs the question. Often the reason that Board Sections cannot act until a case has been at the BVA for a considerable period of time is because of delays
occasioned in getting the case to the

Section in the first place, or removing it from the Section during earlier deliberation, because of long delayed action by an appellant or representative. The BVA is very much aware of the
importance of safeguarding the rights of appellants. Protection of appellate due

process is basic and the BVA attempts to aggressively guard individual rights at every stage of the appellate process. On the other hand, it is self evident that the time must eventually come in every case when an appellant must make a final decision with respect to representation and when development of the record and appellate presentations cease so that an appellate decision may be made. Nevertheless, in view of the concerns expressed, the BVA agrees to extend the time period established by these revisions from 60 days to 90 days. This
should provide more than adequate time

for appellants to act after their records have been transferred to BVA. VA does not agree that these
amendments unlawfully, or improperly,

impair rights provided in chapter 71, title

38, United States Code (e.g., in 38 U.S.C. 4002(b), 4004(a), 4005(a)) or otherwise

provided by law. Chapter 71 provides that the BVA will maintain a hearing docket and provide formal, recorded hearing (38 U.S.C. 4002(b)); that it will afford an opportunity for a hearing and will base its decisions on the entire rhcord and its consideration of all of the evidence and material of record (4004(a)); and that it will accord appellants hearing and, representation rights pursuant to the provisions of the chapter and regulations of the Secretary (38 U.S.C. 4005(a)). The BVA should, and must, provide hearings on appeal. This does' not mean, however, that that opportunity must be extended indefinitely. It is not unreasonable to expect appellants to inform the BVA within a reasonable period'of time

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Federal. Register / Vol. 55, No. 94 / T

&esday, .15, 1990 / Rules and Regulations May

I

whether a hearing is desired. The BVA also should, and must, base its decision on all of the relevant evidence contained in the record. That does not! however. translate to a requirement that the record must remain open indefinitely. If that were the case, the BVA would never have a final record upon which to ' base a decision. Finally, the BVA should, and must, afford appellants the right to be represented in proceedings before it. That does not mean that it has .no right to expect appellants to make a choice concerning representation within a reasonable period of time so that the disposition of the appeal may proceed. 38 CFR 3.103 and 19.150, of course, are among the "regulations of the Secretary," They are implementations and interpretations of the' statutory authority referred to above. These amendments revise 3.103 to call attention to the changes these amendments bring about. The BVA has not amended 38 CFR 19.150 because these amendments do not conflict with that regulation, one of the BVA's current Rules of Practice. 38 CFR 19.150 specifies that an appellant will be accorded full right to representation in all stages of an appeal. These amendments do not curtail the right to representation, they merely provide that the appellant must make a selection of who is to represent him or her within a reasonable period of time unless there is good cause for a late selection or change in representation. With respect to opportunities to build the record, it should be borne in mind that the BVA is an appellate body. It is not an agency of original jurisdiction. While considerable latitude is allowed in order to extend appellants every reasonable consideration, extensive delays to build records while the appellate record is at the BVA are not appropriate. This does not mean, however, that the BVA is unmindful of the necessity of a full record for appellate consideration or that special considerations concerning record development may not come into play when an appellant changes representatives, or acquires a representative for the first time, at the appellate level. (Incidentally, there should be little difference between the nature of the record developed for the BVA or for the COVA. A complete record is just as necessary for adequate: BVA review as for review by a higher tribunal.) When appellate records are deemed to be deficient for whatever cause, whether for the BVA or for higher court review,'and timely development efforts by the appellant and his or her

representative have not been successful, the BVA has always been and willcontinue to be willing to consider reasonable requests. for assistance. The Board will continue to entertain reasonable requests to remand cases back to the field, where development is almost always best carried out, for further development with the assistance of the agency of original jurisdiction. Field facilities have resources for assisting in development which the EVA does not have. The appellant is in reasonable proximity to field locations where he or she may be readily contacted for additional information and where any necessary field investigations and medical examinations can be performed. Except for needed service records which have not already been obtained, documentary evidence and witnesses are almost always located in the field. (As in the past, the BVA is more than willing to consider requests that it directly provide assistance in obtaining evidence such as service medical or administrative records.) If additional evidence is received at the appellate level, fairness to the appellant, and any other claimants/appellants affected, requires that that evidence be remanded to the agency of original jurisdiction for its consideration, further development, and, if necessary, preparation of a Supplemental Statement of the Case, except where that right has been specifically waived. The BVA is particularly sympathetic to both field and central development requests when an appellant is unrepresented or is under a mental or other handicap which prevents him or her from developing the record adequately on his or her own in a timely manner. Finally, appellants do not benefit by having their VA records tied up in Washington for extended periods of time, often delaying action on other VA benefits unrelated to their appeals. while the appellate record is developed. The depiction of these proposed amendments as giving the Chairman extraordinary power to refuse to accept any new evidence, refuse to allow a change in the "power of attorney," and to refuse personal hearings is highly inaccurate. These proposed amendments give the Chairman no authority whatever with regard to these matters until late in the appellate process. Even at that point, his or her authority is narrowly limited to a determination of whether good cause has been shown for tardy action by an appellant or representative. There should be no reason for an appellant to first become aware of his or her rights at a late appellate stage. VA

takes pains to advise claimants of their rights at every stage. of the claims process. For example, the form (VA Form '1-4107) sent to every claimant when a claim is denied includes advisement of the right to appeal, the right' to a hearing, and the right to representation. Rights are again explained in detail on the form used by appellants to appeal to the BVA (VA Form 1-9). (This advice is being expanded even further in revisions to this form which are now in progress.) The death of an individual representative would, obviously, be. good cause for a late change in representation. The provisions of 38 CFR 19.174(c) have been amended to remove whatever doubt there may have been that this is good cause for a change in representation. VA agrees that mentally ill appellants, and other appellants suffering from a handicap which may impede the exercise of their rights, deserve special consideration. That is the reason why the revision to 38 CFR 19.174(c) was written to include "illness of the appellant or the representative which precluded action during the 60-day period" (now 90-day period) among the examples of good cause for allowing the tardy submission of evidence and requests for personal hearings and changes in representation. These revisions have nothing to do with the standard of de novo review. That standard, which remains unchanged, simply means that the BVA will continue to review all of the evidence which is of record without regard to the fact that a claim has been denied in the field, provided that the appeal of that denial was timely and subject to the statutory requirement that there be allegations of specific error of fact or law in the determination being appealed. As to the argument that these amendments do not allow representatives an adequate amount of time to review the record and consult with their clients, particularly in cases where transfer of the appellate record to the BVA might have been delayed. VA notes that in the great majority of cases appellants retain the representative at the appellate level which they had in the field, Even where this is not the case and there is a change, or initial selection, of representation at the appellate level, the approximately threemonth period allowed should be more than adequate for review of the record. and consultation with the client to the extent that an informed determination as to whether representation should be undertaken can be made by the,

ADD-79

Federal Register / Vol. 55, No. 94 / Tuesday, May 15, 1990 / Rules and Regulations substantially influence this choice and appellant and the representative. These revisions in no way impede review of the delay in requesting hearings is the record by representatives or their usually attributable to simple neglect. ability to consult fully with their clients These regulations, as revised, permit the appellant and his or her representative a after representation has been established. In addition to the extension .period of approximately three additional months within which to make this of the cut-off date to 90 days, revisions have been made to 38 CFR 19.174(c) to decision after notification of transfer of the appellate record to the BVA. Further, specifically include delay in the transfer in those unusual cases where special of the appellate record to the BVA as one of the examples of good cause for circumstances require a late request, late action by an appellant or these amendments permit the filing of the late request when good cause is representatives. shown. In accordance with long-standing VA procedures and as clearly required by 38 It is the late submission of hearing CFR 19.174(a), appellants and their requests, not the submission of goodcause motions, which presents the representatives are notified in writing when an appeal is certified and the greater risk of unnecessary delays. appellate record is transferred to BVA. Except in unusual circumstances, such VA agrees that notice should also be as severe hardship on the part of the given concerning the limitations appellant, hearings are provided at the BVA on a "first come, first served" imposed by these revisions at that time. Appropriate changes have been made to basis. Due to the case load at the BVA, 38 CFR 19.174(a). (The word "claimant" hearings must usually be scheduled weeks or months in advance. Late has also been corrected to read "appellant" in that paragraph.) requests produce even later hearing dates. Further, requests which are The revisions to 38 CFR 19.174(b) submitted late may well not be already very clearly provide that processed and associated with the evidence which is submitted at a appellate record (particularly when hearing which was requested on time wrongly sent to the field office, rather will be considered to have been than to BVA, as is often the case) until received on time. after the BVA decision has already been VA does not agree that an informed entered in the case even though they decision concerning whether or not a may have been received somewhere hearing is desirable cannot be made by within VA shortly before the decision the late date in the appellate process provided by these revisions in almost all was promulgated. In such cases, the decision must then be vacatbd and the cases or that the few cases where "show appellate process must essentially begin cause" determinations are necessary .again. will produce delays which are One commenter suggested that the unnecessary. The BVA considers amendment to 38 CFR 3.103(c) was appeals in claims which have already incomplete, inasmuch as it did not been in progress for months, and sometimes for years, at the field level. include a reference to a recent revision to 38 CFR 19.159(b) pertaining to the The appellant, and generally the rescheduling of hearings. (See 54 FR representative, have had a great deal of 11375.) Suggested language including a time to consider the approach to the cross-reference to 38 CFR 19.159(b) was case for a long time before the appeal provided. This suggested language has ever reaches BVA. Appellants are informed of the availability of personal not been adopted. The statement in 38 hearings very early in this process. The CFR 3.103(c) that a claimant is entitled VA form which they are sent when they to a hearing at any time means that a are informed of the initial action taken hearing will be afforded at any stage of the adjudication process. It does not by the agency of original jurisdiction (VA Form 1-4107) prominently displays concern hearing scheduling. this information. Appellants are Accordingly, a cross-reference to 38 CFR 19.159(b) is unnecessary. specifically asked whether they wish a personal hearing (and, if so, where) on The same commenter noted that the the form which constitutes their second closing parentheses in the body substantive appeal to the BVA [VA of 38 CFR 3.156(a), as amended, Form 1-9) which they submit to the appeared to be misplaced. This was a agency of original jurisdiction prior to typographical error and it has been the transfer of the record to the BVA. corrected. This commenter suggested Whether a hearing is desired is normally abbreviation of the first sentence of a preliminary question which can be paragraph (b) and the last sentence of decided early in the appellate process, paragraph (c)(1) of 38 CFR 19.174. The In BVA's experience, factors rarely arise alternate language suggested for late in the appellate process which paragraph (b) omitted some essential

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concepts and has only been adopted in part. The suggested abbreviation for paragraph (c)(1) was inadequate and has not been adopted. Correction of erroneous cross-references in 38 CFR 3.400(q) and the possible elimination of Rule of Practice nomenclature, suggested by this commenter, are beyond the scope of these amendments. One commenter felt that these revisions require a conforming revision of 38 CFR 3.400(r). VA agrees. 38 CFR 3.400(r) currently provides that the effective date of an award based on a reopened claim will be the "date of receipt of claim or date entitlement arose, whichever is later." 38 CFR 3.160(e) and 19.174(c)(1), as amended, provide that requests for personal hearings and additional evidence which are received by the BVA prior to the date of an appellate decision, but which are rejected by the BVA because they were submitted late without good cause, will be referred back to the agency of original jurisdiction which may treat the testimony presented at a new hearing or other new evidence as the basis of a reopened claim. Paragraph 19.174(c)(1) also provides that, if the new evidence or new hearing then results in an allowance of benefits, the effective date will be the same as if the BVA had granted the appeal.which was pending at the time that the hearing request or additional evidence was received. These amended provisions may thus be in conflict with the existing provisions of 38 CFR 3.400(r) in some cases. 38 CFR 3.400(r) has been revised to incorporate the exception in 38 CFR 19.174(c)(1). (VA recognizes that some conforming revisions to 38 CFR part 21 will also be required. These changes will be proposed at a later date.) The same commenter asserted that these amendments, if adopted, will deprive appellants of the same "dueprocess" rights which they have at the "office of original jurisdiction" and that they would place an additional burden on such offices. It is true that these amendments do create some differences between procedures at field offices and before the BVA, but there are many such differences-as could be expected. The functions of field offices and of the BVA are not the same. Field offices are agencies of original jurisdiction, whereas the BVA is an appellate body. As previously noted, the time must eventually come in every case when an appellant must make a final decision with respect to representation and when development of the record and appellate presentations cease so:that an appellate decision may be made. Some additional burden is imposed on VA field offices

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Vol. 55. No. 94 / Tuesday, May 15, 1990 / Rules and Regulations and will not file frivolous hearing
requests. This commenter also expressed lengthy views about perceived limitations on the ability of representatives to withdraw from a case imposed by these revisions. These revisions focus on when an appellant may change representatives, not when a representative may withdraw. The language in 38 CFR 19.174 has been altered to make this clearer. In addition, withdrawal of a representative has been added to the list of examples of good cause for a late change in representation. The same commenter raised questions about restrictions on hearings in which the appellant is not present. That issue, while related, is not the subject of this rule. That issue will be clarified in the future in addressing comments concerning other proposed rules. (See 54 FR 34334) The Secretary hereby certifies that these regulatory amendments will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. Pursuant to 5 U.S.C. 605(b), these regulatory amendments are therefore exempt from the initial and final regulatory flexibility analyses requirements of sections 603 and 604. They will have no significant direct impact on small entities (i.e., small businesses, small private and nonprofit organizations, and small governmental jurisdictions) inasmuch as they concern the appeals of individual appellants before BVA. VA has also determined that these regulatory amendments are nonmajor in accordance with Executive Order 12291. They will not have an adverse economic impact on or increase costs to consumers, individual industries, Federal, State, and local government agencies, or geographic regions. There is no Catalog of Federal Domestic Assistance program number involved with these regulatory amendments. List of Subjects 38 CFR Part3 Administrative practice and procedure, Claims, Disability benefits, Health care. Pensions, Veterans 38 CFR Part 19 Administrative practice and procedure, Claims, Veterans. . Approved: April 17, 1990. Edward 1.Derwinski. Secretaryof Veterans Affairs. 38 CFR parts 3 and 19 are amended as follows: PART 3-[AMENDED] 1. In 3.103, the first sentence of paragraph (c) is revised and an authority citation is added to read as follows: 3.103 Due process-procedural and appellate rights with regard to disability and death benefits and related relief. (c) Hearings.Upon request, a claimant is entitled to a hearing at any time on any issue involved in a claim within the purview of this part, 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. * * * (Authority: 38 U.S.C. 210(c)) 2. In 3.156, paragraph (a) is revised and an authority citation is added to read as follows: 3.156 New and material evidence. (a) New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the 'Board of Veterans Appeals without consideration in that decision in accordance with the provisions of 19.174(c)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. (Authority: 38 U.S.C. 210(c))
* * * * .*

by these amendments, but it is not substantial. Essentially, it involves only their consideration of additional evidence and hearing testimony submitted too late for the BVA to consider. They must reconsider their position in the light of evidence initially submitted while a case is at the BVA anyway, unless this right is waived by the appellant. (See current 19.174.) One commenter suggested that, instead of requiring that good cause be shown for the late submission of evidence or requests for changes in representation or hearings, the rule be rewritten to provide for a motion for an extension of time to take these steps. This suggestion was not adopted. There would be little or no practical difference in the approach suggested. This commenter also suggested that the cutoff date be measured from the date that the appellate record was received by BVA, rather than from the time that the appellant is given notice of the transfer of the appellate record to BVA. This 'suggestion was not adopted either. The method- adopted enables appellants and their representives to easily determine the exact cutoff date, inasmuch as they ar6 always informed of the transfer of the appellate record to BVA. The proposed method does not. This commenter voiced concern about perceived problems in associating requests with the record, when the requests are submitted soon after notice of transfer of the record to the BVA has been given, because the request might be received at the BVA while the file was still in transit. In BVA's experience, proper association of these early requests with the appropriate file is rarely a problem. Concerning this commenter's suggestion that these amendments will serve to encourage representatives to file protective requests for hearings and that this would add to BVA's workload due to the scheduling of hearings which do not materialize, the BVA does not believe that this will be a significant problem. As noted previously, a great deal of time is provided to make the choice of whether or not to request a hearing and the occurrence of events very late in the appellate process which make a hearing desirable for the first time is rare. In those unusual cases, these amendments provide a mechanism for obtaining a hearing. Thus, it will generally be unnecessary for appellants and their representatives to file protective hearing requests. Based on past experience, the BVA has every reason to believe that the vast majority of representatives will act responsibly

3. In 3.160, paragraph (e) is revised and an authority citation is added to read as follows: 3.160 Status of claims.
* * * *

(e) Reopened claim. Any application for a benefit received after final disallowance of an earlier claim, or any application based on additional evidence or a request for a personal hearing submitted more than 90 days following notification to the appellant of the certification of an appeal and transfer of applicable records to the Board of Veterans Appeals which was not considered by the Board in its decision and was referred to the agency of original jurisdiction for consideration.

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(Authority: 38 U.S.C. 210(c))

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4. In 3.400, paragraph (r) is revised and an authority citation is added to read as follows:
3.400 Status of claims

(r) Reopened claims. [ 3.109, 3.156, 3.157, 3.160(e)) Date of receipt of claim or date entitlement arose, whichever is later, 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 in representation, request for personal hearing, or submission of additional evidence following certification of an appeal to the Board of Veterans Appeals.

(a) Notification.When an appeal is certified to the Board of Veterans Appeals for appellate review and the appellate record is transferred to the Board, the appellant and his or her representative, if any, will be notified in writing of the certification and transfer and of the time limit for requesting a change in representation, for requesting a personal hearing, and for submitting additional evidence described in this section. (b) Request for a change in representation,requestfor a personal hearing,or submission of additional evidence within 90 days following notificationof certificationand transfer of records. An appellant and his or her representative, if any, will be granted a period of 90 days following the mailing to them of the notice described in paragraph (a), or until the date the appellate decision is promulgated by the Board of Veterans Appeals, whichever comes first, during which they may submit a request for a personal hearing or additional evidence, and during which the appellant may request a change in representation. Any such request or additional evidence should be submitted directly to the Board and not to the agency of original jurisdiction. The date of the letter of notification will be presumed to be the date of mailing for purposes of determining:whether the request was timely made or the evidence timely submitted. Any evidence which is submitted at a hearing on-appeal which was requested, during such period will be considered to have been received during such period,

even though the hearing may be held following the expiration of the period. Any pertinent evidence submitted by the appellant or representative Is subject to the requirements of paragraph (d) of this section and, if a simultaneously contested claim is involved, the requirements of paragraph (e) of this section. (c) Subsequent request for a change in representation,requestfor a personal hearing,or submission of additional evidence. Following the expiration of the period described in paragraph (b) of this section, the Board of Veterans Appeals 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 include, but are not limited to, illness of the appellant or the representative which precluded action during the period; death of an individual representative; illness or incapacity of an individual representative which renders it impractical for an appellant to continue with him or her as representative; withdrawal of an individual 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 writing and must include the name of the veteran; the name of the claimant or appellant if other than the veteran (e.g., a veteran's survivor or guardian); the applicable Department of Veterans Affairs file number; and an explanation of why the request for a change in representation, the request for a personal hearing, or the submission of additional evidence could not be accomplished in a timely manner. Such motions should be filed at the following address: Office of the Chairman, Special Legal Assistant (O1C), Board of Veterans Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. The ruling on the motion will be by the Chairman. Depending upon the ruling on the motion, action will be taken as follows: (1) Good cause not shown. If good cause is not shown, the request for a change in representation, the request for a personal hearing, or the additional evidence submitted will be referred to the agency of original jurisdiction upon completion of the Board's action on the pending appeal without action by the Board concerning the request or additional evidence. Anypersonal 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 denied a benefit sought in the pending appeal and any evidence so referred which was received prior to the date of the Board's decision, or testimony presented 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 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. (2) 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 representative will be accepted, subject to the requirements of paragraph (d) of this section and, if a simultaneously contested claim is involved; the requirements of paragraph (e) of this section. (d) Considerationof additional evidence by agency of original jurisdiction.Any pertinent evidence submitted by the appellant or representative which is accepted by the Board under the provisions of this section, as well 6-s any referred to the Board by the originating agency under Rule 73(b) ( 19.173(b) of this part), must be referred to the agency of original jurisdiction for review and.preparation of a Supplemental Statement of the Case unless this procedural right is waived by the appellant-or unless the Board determines that the benefit, or benefits, to which the evidence relates may be allowed on appeal without such referral. Such waiver must be in writing or, if a hearing 'on appeal is conducted, formally entered on the record orally at the time of the hearing. (e) Simultaneously contested claims. In simultaneously contested claims, if pertinent evidence 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. The date of the letter of notification of the new evidence will be presumed to be the date of mailing for purposes of determining whether such commentor evidence. in rebuttal was:. timely submitted. No further period will be provided for response to such comment or rebuttal evidence.

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Federal Register / Vol. 55, No. 94 1 Tuesday. May 15, 1990 / Rules and Regulations (3) Veterans in receipt of increased pension, additional compensation or allowance based on the need of Regular Aid and Attendance or by being permanently housebound '(or who. but for the receipt of retired pay. would be in receiptf such pension, compensation or allowance). Pre-bed care, care to obviate the need for hospitalization and post 'hospital care may be furnished to the -followinggroups -ofveterans: (1) Catgegory "'A"veterans whose income exceeds the pension rate of a veteran in need of Regular Aid and Attendance but below that of a Category "A" veteran; (2) Category "'B"veterans; (3) Category 'C" veterans '(with co-payment) and (4) Veterans exposed to toxic substance -or radiation, VA finds, for good cause, advance publication for notice and public comment is not required. IlTe regulatory amendment 'merely updates VA regulations consistent 'with the recent change in law 'and does not involve any substantive 'hange in VA policy or regulations. 'Thus, in accordance with 'the provisions of 38 CFR 1.12, advance publication in the Federal Register is unnecessary. Accordingly, the change in the regulations is'now published as final. These final regulatory amendments do not meet the criteria for a major rule as that term is defined by Executive Order 12291' Federal Regulation. These regulatory amendments will not have a $100 million annual effect on the economy, will not cause a major Increase in costs ,orprices and will not have any other significant adverse effects on the economy. 'The'Secretary hereby certifies that these regulations will 'not have a significant economic impact on the substantial numberof small entities as they are defined in the Regulatory Flexibility Act '5United States Code 601-612. Pursuant to 5 United States Code 605(b). these regulations are therefore exempt from the regulatory analysis requirements of.5 United States Code 603 and 604. The reason for this certification is that the regulations only apply to veterans receiving outpatient medical care within the VA system and impose 'no regulatory burden on small entities.
(The Catalngzff Federal Domestic Assistance Numbers are'84.009 and'64,1011) programs, Nursing home care, Philippines, Veterans. Approved: April 18 1990. Edward 1.Derwinski, Secretary of VeteransAffairs. 38 CFR Part 17, Medical, is amended as follows: PART 17-[AMENDED] 'Section 17.60 is being revised in 'its entirety to read as 'follows: 117.60 Eligibility for ioutpatient servlces. (a) VA shall furnish on an am'bulatory or outpatient basis medical services as are needed, to the following applicants under the conditions stated, except that applications for dental treatment must also meet the provisions of 117.123. (Authority: 38 U.S.C. 612) (1) Forservice-connecteddisobility. Medical services on an ambulatory or outpatient basis shall -beprovided to any veteran for a service-connected disability (including a disability that was incurred or aggravated in the line of duty and for which the veteran was discharged or released from 'the active military naval -or air service). (2) For'verterans50percentormore disabledfrom a service-connected disability.Medical services on an ambulatory or outpatient basis shall be provided for any disability of a veteran who has a service-connected disability rated at 50 percent or more. (3) Forveterans in receipt of section .351 of tite compensation -under 38 .S.C 'Medical services onan ambulatoryor outpatient basis shall be provided to any veteran for a disability for which the veteran is in receipt of compensation 'under section .351 of 'title 38 IUS.C. or for which the veteran 'would be entitled to compensation under that section (but in the ease of such a suspension, 'such medical services 'may be furnished only to the extent that 'such person's continuing eligibility for medical services 4s provided for in the judgment or settlement). (4) Forcompensationandpension examinations. Acompensation 'and pension examination shall be performed for 'any 'veteran 'who is directed to 'have such an examination by VA. (Authority: 38 U.SC. 111 and 210) (5) Forvdjunct treatment.Medical services on an ambulatory or 'outpatient basis shall be provided to veteans for an adjunct nonservice-onnected condition associated with and held to be aggravating a disability from a disease or injuy adjudicated as 'being serviceconnected.

lAulhoriy. 38 U.S:C. 4004.4005. 4005A) CrosvReferenceu: For further information ,concerning: Hearings, see I 3.103 and Rules 57 through 714 1 19.157-19.171); New and Material Evidence. see 13.156(a); Reopened Claim; 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 17

AIN 2900-AD41

Expanded Eligibility for 30-40 Percent Service-Connected Veterans AGENCY. Department of Veterans Affairs. ACTION: Final 'regulations.
sUMMARY The Department of Veterans

Affairs (VA) Is amending its medical regulations ,(38 CFR part '17) to re-define the eligibility requirements under which outpatientlambulatory health care is provided. These amendments will incorporate the provisions of recently enacted legislation.
EFFECTIVE OATE: June 13, 1990. FOR FURTHER INFORMATION CONTACT.

Paul C.'Tryhus, (Chief,Policies and Procedures Division,(136F1 Veterans Health Services and Research Administration, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 233-2504. SUPPLEMENT-ARY INFORMATION: Under VA regulations for determining eligibility for outpatient care (38 United States Code 17.00), VA shall furnish outpatient/ambtilatory care to the following specified groups ,of eligible veterans: 11) Veterans who requirecare for their service-connected disabilities; (2) 'Veterans who are 50 percent or more service-connected and require care for any condition; and (3) Veterans who have a disability for which they receive compensation under 38 United States Code 351. Pre-bed care. post-hospital care, and care to obviate the need for hospitalization, for any condition, shall be furnished to the following groups of veterans. '(1) Veterans who are rated 30 or 40 percent service-connected; -(2) Category "A" weterans whose annual income does'not exceed the pension irAte of a veteran in need of Regular Aid and Attendance. OUtpatient medical services for any condition may he furnished on an outpatient or ambulatory basis to 'the following groups (of Veterans: (1) Veterans who are former prisoners of war, (2)Veterans who served during the Mexican Border Period or World 'War 1;

List of Subjects in 38 CFR Part 17 Alcoholism. Claims, Dental health, Drug abuse, Foreign 'relations; Government contracts, Grant programshealth. Health care, Health facilities, Health professions, Medical devices, Medical research. Mental -health

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the renumbering accomplished by recent legislation. There were several general comments, in addition to specific comments concerning individual amendments. One commenter objected to moving the cross-references from individual sections, where they are currently located, to appendices to parts 19 and 20-asserting that this format was less helpful to the user of the regulations. VA agrees that this method of setting out cross-references is somewhat less desirable, but the change was made at the direction of the Office of the Federal Register. The BVA plans to issue an updated version of a pamphlet which includes these regulations (VA Pamphlet 1-1) within the next few months. This pamphlet version will use the old crossreference format. The same commenter suggested that the Rule of Practice references in part 20 be abandoned and that only the CFR citation be used. This suggestion has not been adopted. The Rule of Practice terminology is widely used by judicial and quasijudicial bodies, such as the BVA. The use of Rule numbers, as opposed to CFR citations for individual Rules of Practice, is common in appellate practice before the BVA. VA sees no benefit to be gained by abandoning this useful terminology, particularly at a time when attorneys-atlaw who are very familiar with the terminology are becoming increasingly involved in appellate practice before VA field personnel and the BVA. Finally, this commenter felt that the period of time allowed for public comment was too short-noting difficulty in preparing comments within the time allowed. With respect to this comment, the BVA notes that it is generally willing to grant reasonable requests for an extension of time within which to comment if such an extension proves necessary. This commenter did not request an extension. One commenter suggested that regulations be promulgated "indicating specifically how BVA will handle ,errors' in previous AOJ or BVA decisions 'discovered' in the course of a current appellate review." Methods of addressing error in a prior BVA decision are set out in 20.904; in 20.1000, et seq.; and in a notice of proposed rulemaking published elsewhere in this issue of the Federal Register. VA does not believe that additional regulation on the subject of the correction of error in prior rating decisions by the agency of original jurisdiction is necessary at this time. The Board may always correct error in prior rating decisions which are properly before it on appeal and may call errors in determinations which are not properly before it to the attention of the agency of original jurisdiction. One commenter offered several paragraphs of criticism under the heading "General Comments." These were essentially conclusionary paragraphs summarizing the nature of complaints about specific amendments. Except to the extent that they are addressed in the next two paragraphs. these comments will be discussed in the context of specific amendments. As might be expected with a proposal of this size, some of the comments were in opposition to each other and some of the comments were internally inconsistent. One commenter essentially suggested that many of these amendments are contrary to the letter and spirit of Public Law 100-687, while another observed that many of the proposed amendments were straightforward implementations of that Act. The former's criticisms included a complaint that the amendments were too adversarial, technical and legal, while at the same time requesting such additions as formal discovery proceedings. Some commenters were generally complimentary, expressing the view that the amendments were well structured and would facilitate an orderly appellate process. One commenter noted that many of the amendments codified existing practices. Comments concerning specific amendments are set out in the material which follows. No comments, suggestions, or objections were received regarding the amendments to part 14 and to 19.1 and 19.2. There was a typographical error in the heading of redesignated 14.635 (formerly 14.637). The word "office" was placed in the wrong location. This has been corrected. With this correction, these amendments are adopted as proposed. Three comments were received concerning the amendment of 19.3. One commenter suggested that paragraph (b) be revised to require that BVA Sections have three Members unless "overwhelming circumstances prevent this." This suggestion has not been adopted. The language proposed conforms to the provisions of 38 U.S.C. 7102. While the Chairman of the BVA has divided the BVA into three-Member Sections, circumstances might arise in the future which would require an en banc approach in some instances. In addition, as contemplated by 38 U.S.C. 7102(a)(2) and by paragraph (d) of this section, there will inevitably be times when less than three Members are available in an individual Section due to

DEPARTMENT OF VETERANS AFFAIRS 38 CFR Parts 14, 19, and 20 RIN 2900-AE02 Appeals Regulations; Rules of Practice AGENCY: Department of Veterans Affairs. ACTION: Final regulations. SUMMARY: The Department of Veterans Affairs (VA) is issuing final regulatory amendments revising the Board of Veterans' Appeals' (BVA) Appeals Regulations and Rules of Practice governing appeals practices and procedures within VA. Conforming amendments have also been made to other related VA regulations. The effect of these amendments will be to revise and update these regulations to reflect current law and practices and to provide information needed by individuals who wish to appeal decisions made by VA adjudicatory bodies to the BVA. The revisions are necessary in order to provide appellate procedures which conform to current law and to inform the public about those procedures. EFFECTIVE DATE: These rules are effective March 4, 1992.
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: On

August 18, 1989, VA published in the Federal Register (54 FR 34334) a notice proposing amendment of part 19 and the addition of part 20 of title 38, Code of Federal Regulations, to update the Appeals Regulations and Rules of Practice of the Board of Veterans' Appeals. Conforming revisions to part 14 were also proposed. VA received ten comments on the proposed regulations-four from service organizations, two from legal services organizations allied with a service organization, two from Members of the Board of Veterans' Appeals, one from a VA employee, and one from a private attorney-at-law. Some commenters have referred to various sections of the Veterans' judicial Review Act (Pub. L. 100-687). In the remarks which follow, provisions of the Act which have been codified will be referred to by their section numbers in title 38, United States Code (as amended by Pub. L. 100-687), rather than by section numbers of the Act. All references to section numbers in title 38, United States Code, throughout this document have been revised to reflect

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Federal Register / Vol. 57, No. 22 / Monday, February 3, 1992 / Rules and Regulations the absence of a Member of the Section, a vacancy on the Board, or the inability of a Member assigned to a Section to serve. One commenter charged that the language in paragraph (b), noting that a Chief Member may be redesignated as a Member, was added under the guise of being an editorial change and was an inappropriate provision allowing the "demotion" of "independent decision makers." This revision was not described as an editorial change. It was clearly identified in the notice of proposed rule making. (See 54 FR 34334.) The position of Chief Member of a BVA Section is one which adds administrative tasks, which are entirely separate and apart from decision making in individual cases before the BVA, to the normal duties of a Member of the BVA. It does not carry with it any increase in pay or entitlements. Chief Members, as such, are judged on their administrative skills and not on their decision making record. 38 U.S.C. 7102(a)(1) provides that the Chairman may designate the Chief Member of a BVA Section. This regulation merely makes clear what was implicit in that authority, that one individual may be designated in place of another when appropriate. Such a reassignment does not involve any loss of pay or entitlements and does not constitute a
"demotion."

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One commenter voiced the opinion that 38 U.S.C. 7102 and 7103 require that a minimum of two Members participate in an appeal and that the use of the word "Members" at the end of paragraph (d) is therefore contrary to law. VA does not agree with this statutory interpretation. While it would be unusual to have two vacancies, absences, or Members who were unable to serve in an individual section at any given time, VA is of the opinion that proceeding with one Member is permissible under 38 U.S.C. 7102(a)(2)(A)(iii) under such circumstances. The use of the plural does not represent a change from the prior regulation on which this paragraph was based. The same commenter also objected to the use of the phrases "other good cause" and "participate effectively" in paragraph (d), asserting that these provisions are contrary to the provisions of 38 U.S.C. 7102(a)(2)(A) and violate a "claimant's" rights to an unbiased BVA panel. VA does not agree with this statutory interpretation, nor does this amendment bring about any impairment of an appellant's rights. VA does agree, however, that the terms objected to are somewhat vague and they have been

removed. In their place, a crossreference to the more specific standards set out in 19.12 has been added. Editorial changes have also been made in paragraph 19.3(a) to make it clearer that the Deputy Vice Chairmen are chosen from Members of the Board. With these changes, the amendment to 19.3 is adopted. No comments, suggestions, or objections were received regarding the amendment of 19.4. This amendment is adopted as proposed. Three comments were received concerning 19.5. Each commenter noted that this section, which lists the criteria governing the disposition of appeals by the BVA, omitted a reference to decisions of the United States Court of Veterans Appeals (COVA). VA is of the opinion that no such reference is necessary. VA, of course, recognizes that the BVA will be bound by court decisions in some cases. Proposed 1 19.6 has been withdrawn and this section number is reserved. This paragraph concerned the composition of Board of Veterans' Appeals hearing panels, and it is being withdrawn because it was more restrictive than necessary regarding the composition of hearing panels. Two comments were received, neither of which relates to the reason for the withdrawal of this paragraph. One comment was received on 19.7. This commenter suggested that the phrase "and upon consideration of all evidence and material of record and applicable provisions of law and regulations," found in 38 U.S.C. 7104(a), be added to the closing sentence of paragraph (a). This suggestion has not been adopted. This paragraph already provides that decisions of the BVA are based upon the entire record. The "entire record" necessarily includes "all evidence and material of record." Governing criteria, such as the law and regulations, are the subject of 19.5. Adding the suggested phrase would be redundant. VA is withdrawing proposed paragraph 19.7(b). That paragraph suggested (in part) that issues on appeal could be disposed of by remand or by vacating a prior decision of the Board with respect to the issues. That was not accurate. A remand serves to direct further development prior to the appellate disposition of the issues. It does not "dispose" of an issue on appeal. Neither does vacating a prior Board decision dispose of an issue. When a prior decision is vacated, it is normally followed by a new decision which disposes of the issue.

Due to the withdrawal of proposed paragraph 19.7(b), proposed paragraph 19.7(c) has been redesignated as 19.7(b). With these changes, the amendment is adopted. No comments, suggestions, or objections were received regarding the amendments to 19.8 and 19.9. Information has been added to 19.8 to make it clearer that BVA decisions in contested claims which are provided to the contesting claimants will include only information pertinent to the contested issues. With this addition, these amendments are adopted as proposed. Proposed 19.10 has been withdrawn and this section number is reserved. The General Counsel of the Department of Veterans Affairs issued a Precedent Opinion on August 27, 1990, which concluded, in essence, that statutory changes brought about by the Veterans' Judicial Review Act (Pub. L. 100-687) had the effect of eliminating "obvious error" as the standard for review by a reconsideration Section after a motion for reconsideration has been granted. (See O.G.C. Precedent Opinion 89-90, 56 FR 1225.) This change also eliminated the principal basis for proposed 19.10 which, in most cases, limited the evidence which could be considered by a reconsideration Section to that which was of record at the time that the decision being reconsidered was rendered. One comment was received regarding 19.11. Proposed paragraph (c) provided that when a traveling BVA Section is expanded to address the reconsideration of a prior BVA decision involving radiation, Agent Orange, or asbestos exposure, the additional Members of the expanded Section will include Members specializing in those issues. The commenter suggested that this requirement for Members specializing in particular issues be expanded to include post-traumatic stress disorder and "complex medical causation issues such as the dates of inception of a veteran's cancer or other disease." This suggestion has been adopted in part. Post-traumatic stress disorder has been added, as suggested. Familiarity with this area is helpful in ensuring complete development of the appellate record. Material regarding medical causation issues has not been added. Medical causation issues must be decided on the basis of the evidence of record (see Colvin v. Derwinski,U.S. Vet. App. No. 90-196 (Mar. 8, 1991)). In cases of extraordinary complexity, Members have the option of seeking the

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opinion of an independent medical specialist. (See J 20.901, infra.) Section 19.11. as proposed, continued the long-existing practice of allowing a three-Member BVA Section to hear cases before the BVA on reconsideration when none of the Members who participated in the original decision is available. 38 U.S.C. 7103(b) now requires that all reconsideration actions be heard "by an expanded section of the Board." The references to three-Member Sections have therefore been withdrawn. An editorial revision has been made to change the word "panel" to "Section" in the section heading and in the text of this section when the reference is to a reconsideration Section. This change has been made so that the amendment will parallel the language which appears in 38 U.S.C. 7103(b). With these revisions, the proposed amendment is adopted. Two comments were received concerning proposed section 19.12. Essentially, the commenters feel that paragraph (c) gives the Chairman too much authority over other Members of the BVA, is beyond statutory authority, and should be removed. VA does not agree. This paragraph allows the Chairman to disqualify a Member of the Board from participating in a particular appeal if the Member gives the appearance of bias, has participated in a prior administrative appeal in the same case on the same issue (and who might naturally tend to be biased in favor of his or her prior decision), or is unable or unwilling to act in the case. VA believes that a procedure for Member disqualification under these circumstances is lawful and is essential. Impartiality is basic to an equitable appellate process. (See, for example, Canons 2 "A judge should avoid impropriety and the appearance of impropriety in all his activities" and 3 "A judge should perform the duties of his office impartially and diligently" of the ABA Code of judicial Conduct.] BVA decisions are to be made on the basis of "the entire record in the proceeding and upon consideration of all evidence and material of record and applicable provisions of law and regulation." (38 U.S.C. 7104(a)). They are not to be made on the basis of personal prejudice. 38 U.S.C. 7102 provides options to the Chairman, including substitution of another Member, when a Member of a BVA Section is unable to serve. VA is of the opinion that a Member who is biased or who is unwilling to serve in a particular case has demonstrated an inability to serve within the meaning of this statutory provision. VA does feel that 38 U.S.C. 7104 should be included in

amendments to 19.27 and 19.28. the statutory authority cited, however, and this authority has been added in the These amendments are adopted as proposed. interest of clarity. With this addition, Two comments were received the amendment is adopted. No comments, suggestions, or concerning 1 19.29. objections were received regarding the One commenter suggested that this amendment of 19.13. The General section be modified to require a Counsel of the Department of Veterans discussion of applicable COVA case Affairs issued a Precedent Opinion on law and of any applicable precedent May 17, 1990, which had the effect of opinions of the General Counsel of the invalidating the "administrative Department of Veterans Affairs in the allowance" procedures of the BVA both Statement of the Case as an aid to in its current Rules of Practice and in unrepresented appellants. While VA these proposed regulations. (See O.G.C. appreciates the concern which Precedent Opinion 11-90, 55 FR 27756.] motivated this suggestion, it has not Such opinions are binding upon the been adopted. This regulation, and the BVA. (See 38 U.S.C. 7104(c).] statute upon which it is based, already Accordingly, all references to those requires that the Statement of the Case procedures have been withdrawn from include the reasons for each these proposed amendments. The determination of the agency of original material withdrawn includes proposed jurisdiction with respect to which paragraph 19.13(b). Proposed paragraph disagreement has been expressed. This 19.13(c) has been redesignated as would include decisions by courts of 19.13(b). With these changes, this competent jurisdiction and opinions by proposed amendment is adopted. the General Counsel when they are Proposed 1 19.14 has been withdrawn. applicable. This proposed regulation dealt with the The second commenter suggested that manner in which written decisions of the phrase "and a discussion of how the BVA should be prepared when the such laws and regulations affect the case involves a prior rating determination" be deleted from determination by the agency of original paragraph (b). contending that the jurisdiction which has become final due phrase "would constitute a repetition of to the failure to file a timely appeal to information already required by the BVA. Decisions by COVA, issued subparagraph (c]." This suggestion has after this regulation was published in not been adopted. The language in proposed form, have altered the BVA'a question is a direct quotation of traditional approach to prior "final" language added to 38 U.S.C. 7105(d)(1) adjudicative actions. (E.g., see Manio v. by Public Law 100-687. The language Derwinski; U.S. Vet. App. No. 90-86 does not duplicate the language in (Feb. 15,1991); Colvin v. Derwinski, U.S. paragraph (c). The new statutory Vet. App. No. 90-196 (March 8, 1991); language appears to require a discussion Vet. App. and Smith v. Derwinski, U.S. of why various statutes and regulations No. 89-13 (March 15, 1991).) The to a particular case proposed regulation was not in complete are applicablerequires a discussionwhile of paragraph (c) accord with these decisions and why a particular decision was made. COVA's opinions provide sufficient This decision could be (and often is) on guidance concerning BVA decision a purely factual basis as opposed to a preparation in this area. technical legal basis. While there can be No comments, suggestions, or some overlap, the requirements of the objections were received regarding the two paragraphs are not interchangeable. amendments to 19.15 and 19.25. This amendment is adopted as Proposed 19.15 has been redesignated proposed. as 19.14 in view of the withdrawal of One comment was offered concerning proposed 19.14. The reference to 19.30. The commenter suggested, in proposed 19.6, which has been essence, that VA require that documents withdrawn, has been deleted. With provided to representatives be sent by these revisions, these amendments are mail and that using a "drop-box," as is adopted as proposed. done at some VA Regional Offices, be No comments, suggestions, or forbidden. It was alleged that the "dropobjections were received regarding the box" service was not effective, but no amendment to 1 19.26. However, this explanation of why this is the case was section has been revised In response to given. This suggestion has not been comments offered in connection with adopted and the amendment is adopted 20.201. See the discussion concerning as proposed. This delivery control is not 20.201, infra, for information concerning this change. The amendment, proper subject matter for these regulations. Further, VA is not aware of as revised, is adopted. any special problems with "drop-box" No comments, suggestions, or service, which is more expeditious than objections were received regarding the

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Federal Register / Vol. 57, No. 22 / Monday, February 3. 1992 / Rules and Regulations mail delivery and which is a relatively convenient means of document delivery for both VA and representatives. It is suggested that any problem with document delivery at any particular field office be brought to the attention of the director of that office so that corrective action may be taken. Three comments were received on 19.31. The current equivalent regulation (38 CFR 19.122) provides, in part, that a Supplemental Statement of the Case is required when additional pertinent evidence is received and that a Supplemental Statement of the Case is not required following a hearing before field personnel when no additional pertinent evidence is received. The amended regulation makes it clear that the evidence referred to includes testimony concerning relevant facts or expert opinion, as well as documentary evidence, but that argument is not evidence. Two commenters suggested that a Supplemental Statement of the Case be required to answer arguments advanced at a hearing held by the agency of original jurisdiction. VA does not believe that this further requirement is necessary or desirable. The purpose of Statements and Supplemental Statements of the Case is to provide appellants with the data which they need, but may not have, to prepare their appeal to the BVA-a summary of the pertinent evidence, information concerning pertinent laws and regulations, and the decision of each issue and a summary of the reasons for each decision. (38 U.S.C. 7105(d)(1)). They are not appellate decisions. Addressing arguments raised by appellants is the function of the appellate decision. The BVA is not bound by an agency of original jurisdiction's position with respect to arguments advanced by appellants and their representatives. The third commenter asserted that language should be added to more clearly define the difference between testimony and argument, using as an example a situation in which a veteran might regard his or her own statement of facts concerning the symptomatology associated with his or her disability as testimony while a hearing officer "or other responsible person" might regard the same statement as argument. This suggestion has not been adopted. While there may be certain gray areas, these terms are relatively well understood. It is impossible to anticipate every variation which may arise. Disputes concerning what is testimonial evidence and what is argument are best resolved on a case by case basis. In the example given, the veteran would certainly be correct and the hearing officer would be in error. A veteran's oral description of his or her symptoms in a case in which the nature or severity of a disability is at issue would very clearly be "testimony concerning the relevant facts" in the terms used by the amended regulation. Statements of fact made by appellants and witnesses are evidence which must be weighed by the decision maker. While these comments have been considered, 19.31 Is adopted as proposed. One comment was submitted concerning 19.32. This commenter suggested that the word "response" in the second sentence be changed to "Substantive Appeal." VA agrees that this would be preferable. This section is adopted, with that change. No comments, suggestions, or objections were received regarding the amendments to 19.33 and 19.34. These amendments are adopted as proposed. One comment was received on 19.35. The commenter asked that language be included to require that the issues listed in the appeal certification (VA Form 1-8) be the same as the issues covered in the Statement of the Case and any Supplemental Statements of the Case. That is normally the correct practice. Nevertheless, this suggestion has not been adopted. Completion of VA Form 1-8 is accomplished for administrative purposes. Primarily, it serves as a last-minute appeal processing check list for use by VA field facilities prior to transfer of the appeal to the BVA. The appeal certification does not have any effect on the BVA's jurisdiction. Details of how the VA Form 1-8 is completed are best left to VA administrative manuals. For the same reason, other details concerning completion of the form have been withdrawn and the language of the section has been simplified. As simplified, the amendment is adopted. Two comments were received concerning 19.36. One commenter suggested that the notice of certification of an appeal to the BVA include notification as to the issues being certified. VA does not believe that that is necessary. Appellants and their representatives are informed of the issues considered to be in an appellate status through the Statement and Supplemental Statements of the Case. The appeal certification primarily functions as a check list for the agency of original jurisdiction to insure that all appeal processing procedures have been completed prior to the transfer of the case to the BVA. The certification doeb

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not serve to confer jurisdiction on the BVA with respect to a particular issue. The second commenter offered the same comment on this section as was offered on 19.30 concerning the use of "dropboxes" to deliver documents to representatives. The same response applies. Proposed 19.36 was essentially a duplicate of a proposed amendment of 38 CFR 19.174(a) which had been published for public comment on July 6. 1989. (54 FR 28445) The final version of 38 CFR 19.174 was published on May 15, 1990. (55 FR 20144) Several changes arising out of comments received were incorporated into the final rule. These included a requirement that appellants and their representatives be notified of various restrictions concerning changes in representation, requests for personal hearings, and the submission of additional evidence after an appeal has been certified to the BVA. A conforming revision has been made to 19.36 and, with this revision, the amendment is adopted. One comment was received on 19.37. This commenter felt that paragraph (a) should be revised to delete the language providing that a Supplemental Statement of the Case need not be issued when duplicate evidence is received which has already been discussed in a Statement of the Case or Supplemental Statement of the Case. VA finds no merit in this suggestion. Appellants and representatives often submit duplicate copies of documents which they have submitted before or copies of records which they obtained from VA in the first place. No useful purpose is served by again discussing evidence which has already been discussed. Two comments were received concerning 19.38. The proposed section provides that development completed by the agency of original jurisdiction pursuant to a remand from the BVA should be reviewed by that agency to determine if that development shows that the benefit sought on appeal should be allowed. One commenter suggested that a review of the entire record be required and felt that the proposed section seemed to indicate that the review would be limited to only the information developed as a result of the remand. It is certainly not VA's intent that the post-remand development be reviewed in a vacuum. Changes have been made to make it clear that the review is to take into consideration the evidence which was previously of record. The other commenter noted that the 30-day period referenced in this section is in conflict with the provisions

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Federal Register / Vol. 57, No. 22 / Monday, February 3, 1992 / Rules and Regulations Two comments were received on
20.101. With one exception, both concern the third sentence of paragraph (a), which is similar to language in proposed 1 19.5, and both comments are essentially the same as the comments offered concerning 1 19.5, supra. The same response applies. One of the commenters also felt that the statement in paragraph (c) that only the Board of Veterans' Appeals will make final decisions with respect to its jurisdiction might mislead readers to believe that the United States Court of Veterans Appeals could not review such a determination. The statement, of course, applies only to determination of BVA jurisdiction within VA. The statement has been modified to reflect that such a determination may be subject to judicial review. With this change, the amendment is adopted. One comment was offered concerning 20.102. The commenter indicated that the intent of paragraph (d) was unclear, inasmuch as it appeared to authorize any Member of the BVA to rule on a motion for a subpoena or to quash a subpoena under proposed 20.711(e) and (I), respectively. VA agrees that clarification is in order. This comment and comments in response to 20.609(i), infra, bring to light the fact that this proposed regulation did not make it clear that the various authority exercised by BVA Members assigned to BVA Sections is to be exercised in the context of proceedings which have been assigned to them for disposition in accordance with the provisions of 38 U.S.C. 7102(c). Appropriate material has been added to paragraphs (c) and (d) to clarify this aspect of the regulation. While not noted by a commenter. there is one typographical error in paragraph (d). The reference to 20.609(g) should be to 20.6091i). This error has been corrected. A reference to proposed 20.1101, which has been withdrawn, has been removed. The amendment, with the revisions noted, is adopted. No comments, suggestions, or objections were received regarding the amendment of 20.200. This amendment is adopted as proposed. Three comments were received concerning J 20.201. One commenter noted that this section refers to filing a Notice of Disagreement with an adjudicative determination by an agency of original jurisdiction and suggested that a provision be included specifically addressing appeal of determinations by VA's Veterans Health Administration (VHA)-apparently under the mistaken belief that the term "agency of original jurisdiction" applies only to field

proceedings assigned to them, to other Members of the Board who have been designated as the Chief (or Acting Chief) these changes, the amendment is Member of a Section or who are acting adopted. No comments, suggestions, or as the presiding Member of a hearing objections were received regarding the panel. It should also be borne in mind amendments to 19.50 through 19.53, that the Chairman is, in fact, a Member 19.75 through 19.77, and 19.100 through of the Board (see 38 U.S.C. 7101) and has 19.102. Material has been added to the same decision making authority as 19.101 and 19.102 to make it clearer any other Member of the Board-in that information which is provided to addition to special authority conferred the contesting claimants in contested by law in certain instances (e.g., see 38 claims is limited to information U.S.C. 7103). In addition, he or she is the pertinent to the contested issues. With chief administrative officer of the Board this addition, these amendments are in a position not unlike that of the chief adopted as proposed. judge of an appellate court. It is, of One cnmmenter did suggest that VA's course, impossible to anticipate every substantive appeal form (VA Form 1-9) procedural contingency when writing be annotated to show that requests for Rules of Practice and, from time to time, hearings before traveling sections of the procedures must be devised to deal with BVA should be submitted to the unique situations. Occasions arise when applicable VA field office, rather than to special procedures must be devised in the BVA, as required by 19.75. This cases which are not yet before a BVA form was extensively revised in October Section or in which Section action has 1989 and now includes this information. been completed. The requirement that A commenter suggested that a crossany necessary ad hoc procedure be reference from 19.76 to 20.704 be consistent with existing statutory and added to appendix A to part 19. VA regulatory authorities provides agrees that this would be helpful and protection from abuse. this cross-reference has been added. One comment was received References to proposed I 19.13(b) and concerning 6 20.3. The commenter stated 19.14, which have been withdrawn, have that "legal intern" should be defined as been removed. The appendix is adopted, a law student, rather than as a graduate with these revisions. of a law school who has not yet been One comment was received on 20.1. admitted to the bar, and that the It was suggested that the introductory definition of "legal intern" proposed was clause "In accordance with the agency's actually the appropriate definition of to the policy of providing assistance "law clerk." The proposed definition of appellant," be restored to what is now paragraph (b). The operative language of "legal intern" is consistent with BVA practice and with the definition in the prior section 'These rules are to be "Black's Law Dictionary," which defines construed to secure a just and speedy an intern as "an advanced student or decision in every appeal" has been recent graduate in a professional field." retained. The omitted introductory (Black's Law Dictionary 732 (5th ed. clause adds nothing of substance. This 1979). A separate definition of "law amendment is adopted as proposed. student" is provided. Inasmuch as these One comment was received regarding terms are clearly defined in this section, 20.2. This commenter alleged that this no confusion should result. section (which provides that the "Cemetery" has been added to the list Chairman may prescribe procedures consistent with the provisions of title 38, of VA facilities which are included in the definition of "agency of original United States Code, and the BVA's Rules of Practice when a situation arises jurisdiction" as an editorial change. Cemeteries were previously included via which is not covered by any existing the phrase "or other Department of rule or procedure) removes authority Veterans Affairs facility." from Chief Members which they Paragraph 20.3(k), as published, previously had, that it is contrary to the contained typographical errors. In the intent of Public Law 100-687, and that it second sentence, "60 days" should read is inefficient inasmuch as Board "90 days" and the reference to Sections will be forced to delay 20.609(g) should have been to processing of a case while it is routed 20.609(i). These errors have been through the Chairman's office. VA does corrected. not agree with these remarks and the With these revisions, 20.3 is amendment is adopted as proposed. adopted. This authority has not been removed No comments, suggestions, or from Chief Members. Section 20.102, paragraph (c), extends this authority to objections were received regarding the the Vice Chairman; the Deputy Vice amendment of 1 20.100. This amendment Chairmen; and, in connection with is adopted as proposed.
of 20.302(c). The commenter is correct and this error has been corrected. With

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Vol. 57, No. 22 / Monday, February 3, 1992 / Rules and Regulations

issue being appealed be requested when a Notice of Disagreement is received following a multiple-issue determination and it is not clear which issue, or issues, the claimant desires to appeal. VA strongly supports this policy and, in view of the concerns raised here, has made it applicable throughout VA by adding this requirement to 5 19.26 "Action by agency of original jurisdiction on Notice of Disagreement." The BVA may also remand cases for issue clarification when necessary. With this addition, 20.201 is adopted as proposed. Three comments were also received concerning 120.202. One commenter objected to the requirement that the issues being appealed be Identified. VA believes that this requirement is appropriate for the same reasons noted in conjunction with a similar objection to 5 20.201. It is also noted that one of the purposes of the current statutory appellate process is to narrow appeals to those issues which an appellant really wants to appeal after the reasons for a determination have been explained to him or her in the Statement of the Case and that 38 U.S.C. 7105(d)(3) provides that the benefits sought on appeal must be clearly identified in the formal appeaL Two commenters objected to the use of the word "must," rather than "should" in conjunction with the requirement that the Substantive Appeal set out specific argument relating to errors of fact or law made by the agency of original jurisdiction. This objection is well taken in view of the word "should" in the statute on which this provision is based (38 U.S.C. 7105(d)(3)) and this has been corrected. One commenter stated that "we are very much concerned by the new authority created by this section which would allow the BVA to unilaterally dismiss an appeal which does not allege an error of fact or law." This authority is not new. 38 U.S.C. 7105(d)(5) specifically states that "The Board of Veterans' Appeals may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed." VA believes that it is appropriate that this fact be brought to the attention of appellants and their representatives in this Rule of Practice. VA also notes that the BVA has been, and will continue to be, very liberal in this area. This Rule of Practice also provides that "The Board will construe such arguments in a liberal manner for purposes of determining whether they
raise issues on appeal *
o..and

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Administration. When a VHA facility has made the determination being appealed, it is the "agency of original jurisdiction." (See I 20.3(a).) The commenters raised objection to what are alleged to be unwarranted procedural requirements for Notices of Disagreement, including the use of the word "must" in the second sentence and the requirement that the issues with which disagreement is being expressed be identified. VA does not agree that these provisions are unwarranted. The word "must" to which the objection is raised occurs in the following sentence"While special wording is not required, the Notice of Disagreement must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review." VA has always been, and will continue to be, liberal in determining what constitutes a Notice of Disagreement. The continuation of this policy is demonstrated by the lack of a requirement for special wording and the use of the phrase "can be reasonably construed." Nevertheless, some indication which reasonable persons can construe as disagreement with a determination by an agency of original jurisdiction and a desire to appeal that determination is at the very heart of what constitutes a Notice of Disagreement. Without such an expression, the communication may be something, but it is not a Notice of Disagreement. Not much is required, but the communication must be recognizable as a Notice of Disagreement. Important consequences flow from filing a Notice of Disagreement. As provided in 38 U.S.C. 7105(a), appellate review is initiated by a Notice of Disagreement. The Notice of Disagreement is jurisdictional--that is, without a Notice of Disagreement, the BVA does not have jurisdiction over an issue (except as provided in J 19.13). Further, it would not be fair for the BVA to assume jurisdiction over an issue before a claimant, who may still have months remaining before the time to appeal lapses, has completed his or her preparation and is ready to initiate an appeal as to that issue. Thus, it is vital that the BVA be able to tell which issues have been appealed when several determinations have been made which are appealable. It is not VA's intent to deprive anyone of his or her right to appeal. As one commenter pointed out, a Department of Veterans Benefits operational manual (M21-1, paragraph 18.03b) requires that clarification sufficient to identify the

20.203 provides that appellants and representatives will be given notice and

an opportunity to contest the matter when the BVA questions the adequacy of the Substantive Appeal. One commenter objected to a perceived requirement for "the claimant to lay out all specific arguments in the Substantive Appeal," observing that it had previously been sufficient to address issues in general terms and to be more specific in "the presentation to the BVA" (apparently a reference to formal and informal hearing presentations and/or appellate briefs). There is nothing in the proposed amendment which changes the practice described. That is, this amendment neither precludes nor discourages raising additional arguments, or further explaining prior arguments, concerning appealed issues in presentations subsequent to the Substantive AppeaL This proposed amendment is adopted, with the correction described above. No comments, suggestions, or objections were received regarding the amendments to it 20.203, 20.204, 20.300 and 20.301. These amendments are adopted as proposed. One comment was received on 20.302. This commenter feels that the language in paragraph (c) which extends the time to respond to a Supplemental Statement of the Case to 0 days should not be adopted and that the response time should remain at 30 days. As the commenter notes and as was set forth in the notice of proposed rulemaldag, the reason for this change is that when new issues are included in a Supplemental Statement of the Case it becomes the Statement of the Case as to the new issues. The law provides that an appellant has 60 days after receiving a Statement of the Case within which to file a Substantive Appeal. (See 38 U.S.C. 7105(d)(3).) The commenter argues that new issues should not be included in Supplemental Statements of the Case. While VA understands that the "purest" procedure might arguably be to require a separate Statement of the Case concerning new issues raised, that is not the procedure used by VA regional offices In some cases. There is nothing legally wrong with consolidating the appeals, provided that the agency of original jurisdiction bears in mind that when a new issue is raised and denied, there must be a Notice of Disagreement with respect to the new issue before it is included in a Statement or Supplemental Statement of the Case. This amendment is adopted as proposed. The same commenter raised an objection to 9 20.303 with the following comment: "Please refer to comments pertaining to the "00-day period" under the preceding paragraph." The

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paragraph referred to was the one containing the above objection to

20.302. Apparently, the objection relates to the reference to a 60-day period for responding to a Supplemental Statement of the Case. The language in this amendment has not been modified for the same reasons noted in the discussion concerning 20.302. The amendment is adopted as proposed. No comments, suggestions, or objections were received regarding the amendment of 20.304. This amendment is adopted as proposed. One commenter feels that the presumption In 20.305 that a document had been postmarked 5 days prior to it's receipt when the actual postmark is not available is too liberal and that a three day period is more appropriate. While VA agrees that this is perhaps liberal, this suggestion has not been adopted. This commenter also noted that mail service is provided on Saturday-in essence suggesting that the exclusion of Saturday in calculating the 5-day period is inappropriate. VA notes that mail service is not provided in all areas on Saturdays. The amendment is adopted as proposed. No comments, suggestions, or objections were received regarding the amendment of 20.306. "Martin Luther King, Jr.'s Birthday" has been changed to "Birthday of Martin Luther King, Jr." and the apostrophe has been removed from "Veterans Day" to conform with 5 U.S.C. 6103. This amendment is adopted with these revisions. One comment was received concerning 20.400. The commenter suggested that the fourth sentence be modified by adding the words "by the claimant or the claimant's representative," or similar words, after the word "argument" to make it clear that only the claimant or his or her representative may authorize a merged appeal. While that is already relatively clear from the proposed regulation, the suggested addition is accepted and the proposed amendment is adopted with this addition. No comments, suggestions, or objections were received regarding the amendments to 20.401 and 20.500. These amendments are adopted as proposed. One comment was received regarding 20.501. This commenter, who was also the only commenter on 20.302, suggested revision of the last two sentences of paragraph (c) "for the same reasons previously eluded (sic) to in comments pertaining to 20.302, as proposed." Presumably, the objection is to the concept of inclusion of new issues in a Supplemental Statement of the Case. For the same reasons outlined in

response to the comments concerning 20.302, this suggestion has not been adopted and the amendment is adopted as proposed. No comments, suggestions, or objections were received regarding the amendments to 20.502 through 20.504 and 20.600 through 20.605. Section 20.603(a), as proposed, was slightly more restrictive than 38 CFR 14.629(c) with respect to the documentation required to appoint an attorney-at-law as a representative in VA proceedings. Section 20.603(a) has been revised to make it consistent with%38 CFR 14.629(c). With this revision, these amendments are adopted as proposed. Two comments were received concerning 20.606, both addressed to paragraph (e) which notes that permission for a legal intern, law student, or paralegal to prepare and present cases before the Board may be withdrawn by the Chairman at any time if a lack of competence, unprofessional conduct, or interference with the appellate process is demonstrated by that individual. (This authority has also been delegated to the Vice Chairman, the Deputy Vice Chairmen, and Members of the Board. See 20.102(d).) One commenter felt that this paragraph "unlawfully" singles out legal interns, law students and paralegals for "an entirely new and separate discipline system for such representatives" and suggested that procedures such as those set out in 38 CFR 14.633(c) (pertaining to termination of recognition of representatives) be adopted. The second commenter felt that this paragraph was based upon an assumption that law students are more prone to engage in unprofessional conduct than are other representatives and cited the care used by law students utilized by the commenting organization in preparation for BVA hearings and the training which the commenting organization gives to law students participating in such hearings. Fear was expressed that an appellant's case would be prejudiced should a law student be disqualified during the course of a hearing and a supervising attorney, who had not established an equally close working relationship with the appellant, be required to complete the hearing. Fear was also expressed that various prehearing and hearing requests by students which might be inconvenient to the BVA's administrative staff and Board Members could be deemed "unprofessional" and that irritation with a "representative's" persistence might therefore cut off the representative's ability to properly develop the record. The BVA has permitted law students, paralegals, and legal interns to

participate in hearings (with professional supervision by attorneysat-law) for a number of years. VA makes no assumption that law students are especially prone to unprofessional conduct and recognizes that most of these individuals are sincere and dedicated. It also recognizes the valuable experience which such participation provides in the training of law students. Unless independently qualified, however, these individuals are not representatives. They may be future representatives in training, but they do not have the same status as representatives and they are not subject to the disciplinary procedures described in 38 CFR 14.633. Rather, they are permitted to assist an attorney-at-law who is the accredited representative as a courtesy to that representative. It is the supervising attorney-at-law who is responsible for the prosecution of the appeal. While VA recognizes the valuable contribution which BVA experience may provide in the training of paralegals, law students, and interns and the valuable service which these individuals provide to appellants in most instances, the Board's primary responsibility is to insure that justice is done in each individual case and that appellants are not ill-served by inexperienced individuals in training. The BVA encourages zeal in the prosecution of appeals. Thorough representation is very helpful to the BVA, as well as to appellants, in ensuring that all facts and applicable legal theories are brought to light so that justice may be served in each individual appeal. Nevertheless, BVA Board Members have a right to expect that they will be treated with professionalism in the course of appellate presentations. Further, training in professional responsibility is no less a proper part of a law students' education than is training in substantive and procedural law. The American Bar Association's "Model Rules of Professional Conduct" provide, in part, that a lawyer shall not engage in conduct intended to disrupt a tribunal. (Rule 3.5) The following comment, which follows that provision, is germane: The advocate's function is to present evidence and argument so that the cause may be decided according to law. Refraining from abusive or obstreperous conduct is , corollary of the advocate's right to speak on behalf of litigants. A lawyer may stand firm against abuse by a judge but should avoid reciprocation: the judge's default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record for subsequent review and preserve professional integrity by patient

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firmness no less effectively than by because they had not taken the trouble belligerence or theatrics. to evaluate the case prior to the hearing or did not choose to continue with a A mechanism such as that in case which they felt might not enhance paragraph (e) is necessary for the their record of success. VA considers an protection of the appellate process in undertaking to represent an appellant to those few cases where the privilege be a very serious matter. The proposed extended to these individuals is abused. section already provides that Considering the status of these withdrawal will be permitted when good individuals, the elaborate procedures cause is shown and that good cause provided for the suspension or includes "factors which make the debarment of a representative set out in continuation of representation 38 CFR 14.633 are not appropriate. VA impractical or impossible." Clearly, the has no reason to believe that the two situations mentioned by the authority described in this paragraph commenter would fall into this category. will be abused by any Member of the The second commenter noted that BVA. Should such a situation arise, the there could be situations in which a issue may be appropriately raised on representative could be compelled to appeal. If the supervising attorney represent an appellant whom he or she performs his or her function had never agreed to represent, inasmuch appropriately and monitors the as designations of representation can be professionalism of the law student, legal filed by appellants without the prior or paralegal who is assisting him intern, agreement of the representative. This or her at an appellate hearing; there will commenter suggested that, if the such an be no cause for excluding proposal were adopted, it should assistant during the course of a hearing. contain an exception for such cases. The supervising attorney is the Concern was also expressed about representative of record. He or she is placing representatives in a situation in responsible for being thoroughly which they might be forced to continue prepared for hearings in order, at the representation in situations where very least, to properly supervise his or continued representation might be in her assistants. He or she should, and violation of the "Code of Professional must, be prepared to take charge of any Responsibility." In this regard, it was aspect of a hearing when required. This suggested that "unethical" be added to amendment is adopted as proposed. "impractical" and "impossible" at the Only one comment was received close of the second sentence of concerning J 20.607. The commenter paragraph (b)and that representatives voiced support for the provisions of this not be required to explain how or why section, but noted that it conflicts with continued representation would be limitations imposed by 20.1304 unethical. VA agrees that these concerning a request for a change in concerns are valid. The paragraph has certification of representation following been modified to provide that an appeal and transfer of the appellate permission to withdraw is not required record to the BVA. A reference to this unless a representative has agreed to act limitation has been added and, with this in the case and the word "unethical" has addition, the proposed amendment is been added as suggested. Language has adopted. also been added to make it clear that Two comments were received motions to withdraw should not include regarding 20.608. Both deal with the information which it would be unethical restriction in paragraph (b) on a for the representative to reveal. representative's right to withdraw from A list of examples of possible VA a case after an appeal has been certified claimants and appellants other than to the BVA for review. veterans is given in several locations One commenter felt that there should throughout these revisions, including be no restriction and expressed this section. This list has been expanded particular concern about a situation in to include fiduciaries appointed to which there might be an antagonistic receive an individual's VA benefits on relationship between a representative his or her behalf. This revision has been and appellant or disagreement between made to provide additional information. the representative and appellant on how It does not represent any change in to proceed in a particular case. VA feels existing practices. that a limited restriction on the right of a The citation of authority has been representative to withdraw at the expanded to include 38 U.S.C. 7105(a). appellate level is justified. With these modifications, the Unfortunately, there have been abuses proposed amendment is adopted. in this area. For example, there have Three comments were received been cases in which representatives concerning 20.60D. Paragraph (f)of this section states have left appellants unrepresented that fees charged by attorneys-at-law minutes before a hearing was to begin

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and agents m proeeedinp before VA will be presumed to be reasonable if they total no more thmn 20 percent of any past-due benefits awarded. One commenter asserted that this provision was contrary to law, inasmuch as 36 U.S.C. 58,4(d)(1) limited the 20-percent test to contingent-fee cases, while a reasonableness test applies to other types of fee arrangements. In addition, the commenter argued that this provision would induce representatives to tailor their fees to approximate 20 percent even though they might be "grossly disproportionate" to the work required, that Congress meant the 20percent figure to be a ceiling and not the norm, and that the presumption transferred the burden of proof from the representative to the claimant/ appellant. With regard to the latter, concern was expressed about an unrepresented individual meeting this burden. VA does not agree that this provision is unlawful and finds no evidence that it is contrary to the intent of Congress. 38 U.S.C. 5904(c)(2) provides, in essence, that the BVA is charged with determining what fees are reasonable. This presumption serves to announce that the BVA considers fees meeting the 20-percent test to be reasonable unless the contrary is shown. VA believes that it may be construed from the provisions of 38 U.S.C. 5904(d)(1) that it is the sense of the Congress that fees of 20 percent are not unreasonable. It is true that this presumption serves to shift the burden of proof, but VA does not feel that this transfer is unwarranted. Fees of 20 percent would be relatively modest in most cases. Attorneys' fees in many types of civil actions, for example, typically run to a greater amount. At least as to contingent fees, fees of 25 percent of past-due benefits have apparently become the norm in Social Security cases. (Department of Health & Human Services, Social Security Administration, Office of Hearings and Appeals; "Report to Congress, Attorney Fees Under Title 1I of the Social Security Act" 2 (1988).) Further, most cases allowed by the BVA do not result in large awards of past-due benefits. VA has no reason to believe that abuse by representatives who would charge "grossly disproportionate" fees will arise except in unusual cases. Should there be any such abuse, this section and 38 U.S.C. 5904(c)(2) provide for review by the BVA to protect the claimant/appellant. As to unrepresented individuals, the BVA has not and will not penalize legally unsophisticated appellants--nor will it tolerate "grossly disproportionate" fees, even though they

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BVA administrative processes would continue to operate-exactly as it does now. (134 Cong. Rec. S 16646 (daily ed. Oct. 18, 1988).) Essentially, the idea is that attorneys and agents will not become involved in claims for particular benefits from VA on a fee basis until after the claim has been denied at the VA field facility level and, after an appeal, the BVA has had an opportunity to rule on the merits of the particular claim-in short, until after the normal administrative procedures have run their course. For example, the fact that there had been a recent BVA decision on the issue of entitlement to service connection for one disability would permit a fee agreement with respect to that issue (assuming that the other criteria were met), but it would not furnish a basis for a fee agreement on another entirely separate issue (e.g., entitlement to an increased evaluation for another disability) on which the BVA had not yet ruled. It should be noted that the term "issue" in the context of this regulation means the principal issue (e.g., entitlement to service connection for a particular disability). It is not the intent of this regulation to restrict fees for services performed in conjunction with the disposition of the collateral issues which must be addressed in order to reach a decision on the principal issue. The same commenter felt that the words "applicable Board of Veterans' Appeals decision" in paragraph (c)(2) are confusing and objected that the right to obtain an attorney on a fee basis was unfairly restricted if the intent was to refer back to paragraph (c)(1). (While the comment is not clear in this regard, this objection is apparently on the same basis as the objection to paragraph

may meet the 20-percent test. Obviously, if fees of 20-percent were grossly disproportionate to the amount of work done, the presumption of reasonableness would be overcome. The same commenter urged that this regulation include a provision for notifying appellants of their right to file a motion for review of fee agreements under paragraph (i), possibly by inclusion of notice in the form used to designate attorneys and agents as representatives (VA Form 2-22a) and by a requirement that it be included in privately drawn designations of a representative which does not use the form. VA does not currently believe that the need for such notice is so strong as to justify the burden of imposing a regulatory duty of proving that such notice has been given to appellants by agents and attorneys who do not use the form mentioned. The second commenter voiced disagreement with the indication in paragraph (c)(1) that a condition precedent to the charging of fees by attorneys-at-law and agents is a final BVA decision "with respect to the issue, or issues, involved." The commenter argues that the only criteria should be that there was a prior decision, not that the exact issue or issues were decided in that decision, and that this provision is contrary to the intent of Congress. VA does not find that this objection is wellfounded. It was clearly not the intent of Congress that a BVA decision on any subject in the case of a particular veteran would open the door to fees by attorneys-at-law and agents with respect to every matter which might ever arise in the future. The statutory requirement that there be a final decision in the case makes little sense unless the intent is that the decision has been on point. The remarks of the Honorable Alan Cranston, United States Senate, in discussing Public Law 100-687 are instructive. These remarks include the following: Let me be clear-I do not believe that most veterans with claims before the VA would be well advised to seek the assistance of an attorney. Certainly, were I asked, my first advice to a veteran with such a claim would be to contact a veterans' service officer. But the existence of the valuable, free resource of representation before the VA by veterans' service officers in claims adjudication is not a reason for precluding a veteran from seeking to obtain the services of an attorney at the end of the internal VA process if the veteran wishes to do so. The compromise agreement before us today prohibits attorneys fees until after the BVA makes its first final decision, thus contemplating that the current practice of veterans being assisted by skilled veterans' service officers throughout the VA and initial

(c)(1).)
The intent was, indeed, to refer back to paragraph (c)(1). Paragraphs (c)(1) through (c)(3) constitute an interconnected list of criteria which must be met. To remove any doubt, however, the language in paragraphs (c)[2) and (c)(3) has been amended to conform to the language in paragraph (c)(1). With respect to the appropriateness of the language, the comments concerning paragraph (c)(1) apply. Also with respect to paragraph (c)(2), this commenter argues that there should be no requirement that the Notice of Disagreement received on or after November 18, 1988, must precede the BVA decision with respect to the issue, or Issues, involved. Essentially, the commenter feels that the statute (38 U.S.C. 5904(c)(1)), read together with section 403 of Public Law 100-687, is

satisfied if there is a final BVA decision and if there is a Notice of Disagreement filed on or after November 18, 1988, even though the decision predated the Notice of Disagreement. For example, the commenter argues that if there is a final BVA decision following a pre-November 18, 1988, Notice of Disagreement denying a benefit, the claim is reopened and again denied at the agency of original jurisdiction level, and a Notice of Disagreement is filed after November 18, 1988, on the reopened claim, there should be an immediate right to enter into a fee agreement rather than a necessity to await the BVA decision on the reopened claim. VA has not found material in the legislative history which shows that this particular point was specifically considered in the drafting of Public Law 100-687. However, VA is of the opinion that the construction in this proposed amendment is the one which is the most logical. It appears that the intent with respect to the effective date for the allowance of fee agreements was that there would be a clear line of demarcation centered on the date of enactment of Public Law 100-687 (November 18, 1988) with an orderly progression of subsequent events, culminating in a BVA decision, before fee agreements are permitted. Independent analysts have also apparently arrived at the same conclusion. (e.g., see Stichman, "The Veterans' Judicial Review Act of 1988: Congress Introduces Courts and Attorneys to Veterans' Benefits proceedings," 41 Ad. L. Rev. 365 at 387, 388 (1989)). Once the BVA denies an appeal, its decision is final and conclusive aside from the right to appeal to the United States Court of Veterans Appeals, or another Federal court, under some circumstances and a possible motion for reconsideration. (38 U.S.C. 7103(a)) When an appeal is denied by the Board, it may not thereafter be reopened and allowed on the same factual basis, but only on the basis of new and material evidence. (38 U.S.C. 5108 and 7104(b)) Thus, a reopened claim, even with a Notice of Disagreement filed on or after November 18, 1988, has little legal relationship to a prior denied appeal. The earlier appeal is, in essence, a separate case. Inasmuch as 38 U.S.C. 5904(c) bars payment of a fee for "services provided before the date on which the Board of Veterans' Appeals first makes a final decision in the case," VA believes that fees are payable only for service provided subsequent to a final BVA decision following upon a

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Federal Register / Vol. 57, No. 22 / Monday, February 3, 199Z / Rules and Regulations Notice of Disagreement filed on or after November 18, 1988. Moreover, Congress contemplated that the operative BVA decision, for the purposes of Public Law 100-687, would follow rather than precede the Notice of Disagreement. Regarding the effective date provisions, for example, Senator Cranston noted the following: Given the fact that it currently takes on the average over 355 days from the issuance of the statement of the case-the step after the filing of the notice of disagreement-to the entry of a final BVA decision, the new court should have sufficient time before its effective date on September 1. 1989, in which to become fully operational before it receives its first significant number of cases. (134 Cong. Rec. S 16650 (daily ed, Oct. 18,
1988)) 100-687 decision and a post-Public Law 100-687 Notice of Disagreement. There is no compelling reason to allow the payment of fees before a veteran has exhausted administrative procedures in a reopened claim and, as Senator Cranston's remarks suggest, there is every reason to bar the payment of fees in stale appeals. Paragraph (b) of 20.609 points out that agents and attorneys-at-law may receive fees, but that other representatives may not. This comnmenter also suggested that paragraph (b) be amended to specify when agents and attorneys-at-law who are also accredited representatives of recognized organizations may receive fees. Explanatory language has been added, as suggested. Only one representative may be recognized at any given time in the prosecution of a particular claim. (See 20.601 and 38 U.S.C. 7105(b)(2).) An attorney-at-law or agent could also be an accredited representative of a recognized service organization. (See 38 CFR 14,628, "Recognition of organizations," and 14.629 "Requirements for accreditation of representatives, agents, and attorneys.") Whether he or she may charge fees for services performed in a particular case will depend upon the capacity in which he or she is acting at the time. If the organization has-been designated as representative and he or she is acting in his or her capacity as an accredited representative of a recognized organization, it is the organization which is the representative in the case, not the accredited representative of the organization. Recognized organizations may not receive fees and the fact that the particular accredited representative who is working on the case for the organization may also happen to be an attorney-at-law or agent does not alter that fact. If he or she has been appropriately designated and is acting in his or her own capacity as an attorney-at-law or agent as the designated representative, then fees may be charged if the other criteria are also met. (Also see proposed 20.603(b) concerning attorneys employed by recognized organizations.) The third commenter suggested that the list of factors to be considered in determining whether fees charged by attorneys-at-law and agents are reasonable contained in paragraph (e) should include "the delay in payment" and "the contingent nature of the representation." VA assumes that the reference to "the contingent nature of the representation" is actually a reference to the contingent nature of payment in contingent fee cases. On that

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assumption, this part of the suggestion

has been adopted. The suggestion concerning including delay in payment as an element for consideration has not been adopted. Potential difficulty in collecting fees from clients exists in every case. If the concern here is about the fact that payment must await the result in contingent fee cases, that would be part of the justification for higher fees in contingent fee cases and is contemplated by the inclusion of consideration of whether the payment of fees is contingent upon achieving a favorable result. This commenter felt that paragraph (f), which provides that fees which total no more than 20 percent of any past-due benefits awarded will be presumed to be reasonable, should be "clarified" to show that fees over 20 percent would not be presumed to be unreasonable. VA believes that it is obvious that that would not be a reasonable construction of paragraph (f0 and that no further clarification is necessary. (See the discussion concerning the first commenter's remarks regarding this paragraph.) This commenter argues that paragraph (i) should provide that motions for the review of fee agreements should be ruled on by "the Board," rather than by the Chairman, citing the language in the section of Public Law 100-687 which has been codified as 38 U.S.C. 5904 and arguing that Board Members are in the best position to judge the quality and quantity of an attorney's work on a case. This suggestion has not been adopted. Such motions are in fact reviewable by any of the Members of the Board when the motion is properly before them. (See 20.102(d).) VA regrets any confusion which may have been caused in this regard by the typographical error which resulted in an erroneous reference to 20.609(g), rather than 20.609(i), in 20.102(d). Secondly, this comment seems to be based on the erroneous assumption that the Chairman is not a Member of the Board with decision-making authority at least equal to that of any other Member. Clearly, that is not the case. (See, for example, 38 U.S.C. 7101(b).) Next, from an administrative standpoint, choosing which Members of the Board will dispose of motions is one of the Chairman's duties. Sections of the Board dispose of motions which are before them in connection with proceeding which have been specifically assigned to them by the Chairman. (See 38 US.C. 7102(c).) Finally, VA agrees that Members of Board Sections will be in a good

Further, the judicial-review provisions and the attorney-fee provisions were enacted together, as an organic whole. The attorney-fee provisions were added primarily to assist veterans in retaining counsel for assistance in appealing BVA decisions to the United States Court of Veterans Appeals. Senator Cranston emphasized that veterans should be assisted by veterans service officers throughout VA field facility and initial BVA processes, concluding that the attorney-fee provisions would enable a veteran, "once he or she has received an initial BVA decision and has sought an attorney's assistance to appeal that
decision, * * * to seek further BVA

review with the assistance of counsel before going to court." (134 Cong. Rec. S 16646 (daily ed. Oct. 18, 1988)) To the extent a veteran has filed a Notice of Disagreement in a reopened claim, but has not received a BVA decision thereon, an appeal to the court would be premature. Thus, the need for counsel envisioned by Congress (i.e., to assist in an appeal to the COVA) has not arisen. In an analogous situation, Congress expressed its desire to bar payment of fees where counsel is not retained within one year of the final BVA decision. Senator Cranston explained the effect of this provision in the context of stale appeals as follows: This provision is not intended to limit a claimant from changing attorneys once an appeals process has begun, but rather to address the possibility of a claimant receiving a final BVA decision waiting a number of years without any action, and then retaining an attorney to request a reopening and pursuit of the claim at the regional office level. In such a case, no fee could be paid to the attorney until after a new final decision.
(134 Cong. Rec. S 16647 (daily ed. Oct. 18, 1988))

VA believes that the same analysis may be applied where there is a disjunction between a pre-Public Law

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this commenter, it is reluctant to impose
what would in effect be a requirement for the approval of each individual litigation expense in advance in addition to a general agreement for expense reimbursement. Such a requirement would be very burdensome to both claimantsf appellants and representatives. Consideration will be given to a requirement for advance approval with respect to large expenses. perhaps those exceeding a particular amount, in the future if experience indicates a need for further regulatory control. At this time, however, this suggestion has not been adopted. A list of examples of possible VA claimants and appellants other than veterans is given in several locations throughout these revisions, including this section. This list has been expanded to include fiduciaries appointed to receive an individual's VA benefits on his or her behalf. This revision has been made to provide additional information. It does not represent any change in existing practices. VA assumed when drafting these amendments that parties would submit such evidence as they might wish to the BVA in conjunction with a motion for review of a representative's bill for expenses. Material has been added to paragraph (d) to make it clear that this is permitted and also to note that the ruling on the motion will be in the form of an order. The phrase "Department of Veterans Affairs personnel" has been changed to read "Department of Veterans Affairs field personnel" in the section heading and in paragraph (a) as an editorial change in the interest of clarity. With the modifications described in the preceding paragraphs, 20.610 is adopted. One commenter objected to the provision in 20.611 allowing a representative to continue representation in a case on behalf of survivors for the first year following the death of a claimant or appellantalleging that the "lengthy period of recognition would constitute an unwarranted invasion of the privacy rights of any survivor(s)." It was suggested that the period be reduced to 30 or 60 days or that there should be a requirement incorporated in the regulation that any survivor who files a claim must be placed on notice of the "power-of-attorney" in effect and offered the opportunity to rescind, limit, or change it. The suggested changes have not been adopted. A similar provision has been in effect for many years, except that the current regulation provides for

position to rule on motions concerning fee agreements in matters in which they have been personally involved. It is contemplated that such Members will rule on motions concerning fee agreements which arise during the course of appeals or other proceedings which have been assigned to them in accordance with 38 U.S.C. 7102(c). (As a result of these comments, material has been added to 20.102 to make this clearer.) However, motions concerning the reasonableness of fee agreements (as well as other motions) do not always arise in the context of appeals before Sections of the Board for disposition. Essentially, 38 U.S.C. 5904 charges the BVA with monitoring the reasonableness of fee agreements concerning cases brought throughout the Department regardless of whether they are in the context of an appeal. For example, an attorney-at-law may be hired to represent a claimant at the field level in a reopened claim which follows a recent BVA decision. The representative may be successful in the prosecution of the reopened claim and the case will never come before the BVA on appeal. Nevertheless the claimant could file a motion with the BVA for review of the reasonableness of the attorney's fees. Along the same lines, 38 U.S.C. 5904(c)(2) and these rules provide for filing a copy of any fee agreement with the BVA and that the Board may review agreements for reasonableness on its own motion. It seems clear that the BVA has the responsibility under this statute to conduct at least a preliminary screening of agreements filed with it to guard against the abuse of veterans and their survivors and dependents. Some centralized filing and initial review process at the Board is desirable both from the standpoint of reasonable administrative efficiency and from the standpoint of uniformity of approach. A list of examples of possible VA claimants and appellants other than veterans is given in several locations throughout these revisions, including this section. This list has been expanded to include fiduciaries appointed to receive an individual's VA benefits on his or her behalf. This revision has been made to provide additional information. It does not represent any change in existing practices. References to "agents" have been removed from paragraph (h), inasmuch as the provisions of 38 U.S.C. 5904[d) apply only to attorneys-at-law. VA assumed when drafting these amendments that parties would submit such evidence as they might wish to the BVA in conjunction with a motion for

review of a fee agreement. Material has been added to paragraph (i) to make it clear that this is permitted and also to note that the ruling on the motion will be in the form of an order, as noted in 38 U.S.C. 5904(c)(2). Other editorial changes have been made to the paragraph to make it clear that the BVA need not file its own motions with itself. The phrase "Department of Veterans Affairs personnel" has been changed to read "Department of Veterans Affairs field personnel" in the section heading and in paragraph (a) as an editorial change in the interest of clarity. With the modifications described in the preceding paragraphs, 1 20.609 is adopted. One comment was received concerning 1 20.610. This comment, like the commenter's remarks pertaining to 20.609(i), suggests that notice of the availability of review of the reasonableness of representatives' expenses be included in VA Form 2-22a and any other designation of representation by an attorney-at-law or agent. The same response given in the discussion concerning 20.609(i) applies. This commenter also suggested that the BVA take into consideration, when reviewing motions pertaining to the reasonableness of representatives' expenses, whether expenses have been incurred for the services of experts which should have been provided by the representative rather than the expert. Normally, experts are used to provide opinions on technical matters, rather than to provide normal representational skills. Based upon past experience, VA does not currently perceive a significant potential for abuse in this area warranting regulation. VA notes that the list of criteria at the end of paragraph (d) is not intended to be all inclusive and that such a problem could be addressed under the regulation-as proposedshould abuse occur. If future experience should show that it is warranted, appropriate specific language can be added at a later time. Finally, this commenter suggested that whether there was prior authorization of an expense by the claimant or appellant should be added to the list of criteria set out in paragraph (d) used to judge the reasonableness of expenses. In this regard, the commenter expressed concern about claimants not being aware of the cost of litigation. This regulation already contemplates that there will be an agreement between the parties as to whether a representative will be reimbursed for expenses. (See paragraph (b).) While VA recognizes and appreciates the concerns voiced by

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Federal Register / Vol. 57, No. 22 / Monday, February 3, 1992 / Rules and Regulations continuation of representation for a "reasonable" period. (See 38 CFR 19.155(c).) This amendment substitutes a one year period (or a period sufficient to complete any appeal pending at the time of the death of the claimant/appellant) for the rather vague standard of "a reasonable period." As is very clear from the proposed amendment, this provision does not preclude the survivor from changing representatives or terminating representation during the applicable period if he or she wishes. Rather, it serves the function of relieving distraught survivors from the burden of being forced to deal with such matters during the initial year following the death of an appellant or claimant and allows representatives to protect the interests of such survivors during this critical period. The amendment is adopted as proposed. Four comments were received concerning 20.700. One commenter recommended that sworn testimony at a personal hearing be recognized as "primary" evidence and that the term "evidence" be defined to include testimony. The commenter argues that this regulation should provide that the BVA must state affirmative reasons for rejecting any testimony and that it should provide that the BVA may not "find a fact to be contrary to the veteran's testimony solely by reason that no reference to such fact exists or is contained in the service records." That testimony by a veteran or any other witness is evidence is really not a matter which is open to debate. VA, of course, recognizes that it is. (See, for example, proposed 19.31.) This point is so well settled that VA sees no need to include it in a definition in these rules of practice. The other suggestions from this commenter, described previously, pertain to the deliberative and decisionpreparation process of Members of the Board. The weight to be accorded to any particular item of evidence, whether testimony or documentary evidence, is a matter for the triers of fact-in this case, Members of the Board-to determine. Many elements go into determining whether a witness is credible, including his or her demeanor while giving testimony. Little would be gained by a regulatory requirement that the Board specifically state that it did not find a particular witness to be trustworthy. This commenter asked that paragraph (c) be revised to require that reasons for excluding evidence at hearings on the grounds of lack of relevancy or materiality or because of its repetitious nature be included in the final written decision by the BVA. The place for argument and discussion of why evidence should or should not be excluded at a hearing is at the hearing. The reasons for a ruling on the admissibility of evidence will be articulated at that time. In the event that appeal is taken to a higher tribunal on the question of whether evidence was wrongfully excluded, the hearing transcript will be available. This commenter objected to the provisions in paragraph (d) limiting informal hearing presentations to 30 minutes, asserting that this was not in the interest of the appellant. These presentations on audio cassette tapes are limited to 30 minutes because the tapes are transcribed by VA at no cost to the appellant or representative as a service to the appellant and representative. Government funds for this service are limited. The use of this procedure is optional. Appellants and their representatives may present recorded or written presentations of any length they wish at their own expense. VA also notes that the 30 minutes allowed is 30 minutes of actual dictation. Off-line time to compose comments is not included. Thus 30 minutes of actual dictation on tape may represent several hours of work. Thirty minutes of dictation tape translates, on the average, into approximately eleven pages of typed material, single spaced. In a 1987 sample survey, the average informal hearing presentation was just under two and one-half pages in length and the longest in the sample survey was five and one-half pages in length. The other three commenters expressed concern about the provisions of this amendment which limit hearings solely for oral argument unless good cause for such a hearing is shown. Some pointed out that give-and-take discussions with Members of the Board are often very valuable in defining the issues. One commenter expressed concern about obtaining hearings in cases in which an appellant was unable to attend personally due to age or infirmities. VA does not believe that, in most cases, the benefit to be gained justifies the time and expense necessary to conduct such hearings. In most cases, there is little which can be presented at oral argument which can not be presented equally well in briefs, The proposed regulation provides for exceptions in unusual cases. The amendment is adopted as proposed. No comments, suggestions, or objections were received regarding the amendment of 20.701. This amendment is adopted as proposed. Two comments were received concerning 20.702.

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One commenter pointed out the error in the spelling of the word "appear" in the paragraph heading of paragraph (d). This was a typesetting error which has been corrected. This commenter also suggested that the sentence "Ordinarily, however, hearings will not be postponed more than 30 days" be added following the sixth sentence of paragraph (d). The suggested language duplicates language found in paragraph (c)(2) and VA agrees that the suggested addition is appropriate. This suggestion has been adopted. The second commenter pointed out, in essence, that paragraph (d) has not been constructed to recognize hearings in which only representatives appear to present oral argument. This was an oversight which has been corrected. With these revisions, the amendment is adopted. One commenter alleged that the discussion of an individual's right to a Travel Board hearing in 20.703 was confusing and should be further clarified. Unfortunately, the commenter did not indicate why or how the discussion was considered to be confusing. Inasmuch as no explanation was given and inasmuch as the material in the amendment is relatively simple and straightforward, no change has been made. A second commenter suggested that 20.703 should be altered to provide that Travel Board hearings will not be granted concerning reconsideration of a prior BVA decision unless a motion for reconsideration has been granted. VA agrees that this is appropriate and this suggestion has been adopted. This proposed section failed to mention that Travel Board hearings are available in an appeal of a claim reopened after a prior BVA decision. This oversight has been corrected. With the changes described, the amendment is adopted. Two comments were received concerning 20.704. Paragraph (c) of 20.704 provides, in part, that requests for a change in a Travel Board hearing date may be made at any time prior to the scheduled date of the hearing if good cause is shown and that if good cause is not shown, the appellant and representative will be notified and given an opportunity to appear at the hearing previously scheduled. One commenter suggested, in essence, that this paragraph be modified to account for the situation in which the request for a change in the hearing date is received so late that notice of the denial of the request cannot be given until after the originally scheduled hearing date has passed. Suggested

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program in these amendments. The language was proposed. The suggested proposed amendment is not language (which provided that if the original hearing date had already passed incompatible with the program. The Hearing Officer would be a panel of one by the time that notice of the denial of and would, of course, be the presiding the request for a new hearing date could be given, the request for the hearing Member of that panel This amendment would be deemed to have been is adopted as proposed. withdrawn) has not been adopted. VA No comments, suggestions. or agrees, however, that a potential objections were received regarding the problem with the proposed amendment amendment of 20.707. In response to a has been identified by this commenter. comment, post-traumatic stress disorder Obviously, a request for a new hearing was added to the list of BVA Board date must be given far enough in Member specialties in 19.11(c) to be advance of the originally scheduled taken into consideration when Section hearing date for the agency of original expansion is required because an issue jurisdiction to act on the request. This presented to a traveling Section of the problem is solved in the section dealing BVA involves reconsideration of a prior with hearings other than Travel Board BVA decision. Post-traumatic stress hearings by requiring that a request for a disorder has been added to a similar list new hearing date must be submitted not in this section for consistency. later than two weeks prior to the An editorial revision has been made scheduled hearing date. (See to change the word "panel" to "section" 20.702(c).) The 20.704 amendment in the text of paragraph (b) when the has been revised to include a similar reference is to a reconsideration section requirement. or to a traveling section. This change The second commenter pointed out, in has been made so that the amendment essence, that paragraph (d) has not been will parallel the language which appears constructed to recognize hearings in in 38 U.S.C. 7103(b) and 7110. which only representatives appear to The proposed amendment is adopted. present oral argument. This was an with these revisions. oversight which has been corrected. The individual who commented on For reasons noted in the following 20.706 offered the same remarks paragraph, the substance of the second concerning 20.708. For the reasons sentence of proposed 20.705(b) has noted in the discussion concerning to paragraph (a) of 20.704. been moved 20.706, the commenter's suggestion has With this correction and the revisions not been adopted and the amendment is described in the previous two adopted as proposed. paragraphs, the 1 20.704 amendment is Two comments were received adopted. pertaining to 1 20.709. received One comment was This regulation provides for the concerning 20.705. The commenter procedures to be followed when the suggested that the word "or" be moved record is to be left open for a reasonable from proposed paragraph (a) (paragraph (a)(1) as adopted) to the end of proposed period of time following a personal hearing in order to allow an appellant (paragraph (a)(2) as paragraph (b) and his or her representative to submit adopted) and that the second sentence additional evidence. One commenter of proposed paragraph (b) be placed in suggested that the amendment be parentheses. VA agrees that the revised to provide clarification of the structure of this amendment could be nature of such evidence, to provide improved, but is taking an alternative information concerning whether the approach. The word "or" has been development of the evidence is the sole moved as suggested, but the substance responsibility of the appellant or of the second sentence of proposed representative, and to distinguish paragraph (b) has been moved to between evidence requested by the BVA I 20.704(a). The substance of the as opposed to evidence volunteered by remainder of 20.705 has not been the appellant This suggestion has not changed, but it has been reorganized for been adopted. greater clarity. With these changes, It is neither necessary nor desirable to 20.705 is adopted. define all of the types of potential One comment was received evidence which might come to light concerning I 20.706. This commenter during the course of a hearing. Any expressed concern about the reference attempt at such a definition would likely to the presiding Member of a hearing be incomplete, inasmuch as it is panel in this section. and in several virtually impossible to guess at the others, feeling that this was not nature of all such evidence in advance. sufficient to encompass the Hearing Officer program of the Veterans Benefits and little (if anything) would be gained by such an attempt. This is a matter best Administration. No specific changes addressed on a case-by-case basis. have been made to mention this

This regulation was not meant to be all inclusive with respect to post-hearing evidence development. It merely provides an opportunity for the record to be left open as a service to appellants and representatives so that they may submit additional evidence after the hearing if they indicate a desire to do so during the hearing. The BVA does not force appellants or representatives to submit evidence against their will, even when it is obvious that the evidence would help their cause. If the Board Members participating in the hearing feel that additional evidence is required. they may undertake the development administratively or through remand. That, however, is beyond the scope of this section governing practice by appellants and representatives before the Board. The individual who commented on 20.706 offered the same remarks concerning 20.709. For the reasons noted in the discussion concerning 20.706, the commenter's suggestion has not been adopted. The amendment is adopted as proposed. No comments, suggestions, or objections were received regarding the amendment of J 20.710. This amendment is adopted as proposed. Two comments were received regarding 20.711. The first commenter recommended that additional information be included as to who may be subpoenaed, noting that the regulation specifies that VA adjudication personnel are exempt but that the exemption did not appear to extend to personnel of the Department of Veterans Affairs' Veterans Health Administration. and that the amendment does not discuss "hostile" witnesses. No change has been made as a result of these comments. Essentially. any witness may be subpoenaed-provided that the requirements of the regulation concerning the need for a subpoena are met. In addition, no particular information concerning "hostile" witnesses is necessary. Obviously, some lack of voluntary cooperation is implicit in the need for a subpoena. The second commenter complained because this amendment does not allow appeal of rulings on a motion to quash a subpoena. citing the provisions of 38 U.S.C. 7104 which (together with the provisions of 38 U.S.C. 511(a)) provide that all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans are subject to one review on appeal. VA agrees that this is a valid criticism. The restriction complained of, which

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4201

appeared in proposed paragraph (f). arose out of concern that appeals would be endlessly delayed due to appeals of interlocutory matters. This concern can also be addressed by providing that the various subpoena related motions are appealable, but that they are not subject to interlocutory appeals. Paragraphs (e) and (h) have been revised to take this less restrictive approach. The second commenter also argued that the failure of this section to provide for deposing witnesses and its restriction of the issuance of subpoenas to those cases where the necessary evidence cannot be obtained in any other reasonable way are in violation of the provisions of 38 U.S.C. 5711. For the reasons set out below, VA does not agree and no modifications have been made as a result of this criticism. VA agrees that 38 U.S.C. 5711 is broad enough to support a regulation permitting formal discovery proceedings and broader subpoena power, but the authority of the Secretary (and those to whom he or she chooses to delegate that authority) under this statute is discretionary. The statute confers subpoena power, but it does not compel the exercise of that power. The power to issue subpoenas has existed for a number of years, but its exercise has been limited. The provisions of this section are in conformance with existing procedures and are compatible with the authority which the Secretary has delegated to the Chairman of the BVA and the heads of regional offices and centers. (See 38 CFR .1.) Some erosion of past simplicity of VA adjudication and appeal procedures is inevitable with the growing complexity of veterans' law, the involvement of attomeyst-law in the adjudication and appeal processes, and the advent of judicial review of decisions of the BVA. VA recognizes the growing complexity of veterans' law and is willing to exercise more subpoena power than has been exercised in the past, but believes that this inherently adversarial process is best limited to those cases where no other reasonable approach will work. VA is also of the opinion that the complexity and adversarial nature of formal discovery proceedings are incompatible with the relatively informal VA adjudication and appeal process. Accordingly, such procedures will not be implemented at this time. A comment concerning 1 20.712 (infra) brought to light the absence of any instructions concerning the payment of witness fees in conjunction with the service of a subpoena. Material concerning this subject has been added. With the revisions described, proposed 5 20.711 is adopted.

One commenter urged that 1 20.712 include clarification with regard to "how the appellant would Incur' expenses other than for reproduction costs" and information on what, if any, reimbursement witnesses may claim and from whom. In view of this comment, the section heading has been modified to more accurately reflect its intended scope. The purpose of this section is to alert appellants, representatives, and witnesses that VA cannot reimburse them for their expenses. The potential expenses of an appellant in conjunction with a hearing are many and varied. (Various travel and lodging expenses come immediately to mind as examples.) The nature and extent of expenses which an appeflant may be willing to incur in conjunction with a hearing are really decisions which he or she must make in consultation with his or her representative. Apart from the availability of review for reasonableness of expenses charged to an appellant by a representative (see 20.610), no need for regulation in this area is currently perceived. The reimbursement of witnesses is also a matter to be privately determined between the witness and the appellant or representative who requests his or her appearance, except that by law (38 U.S.C. 5711,3 CFR 2.1(c)) witnesses who are subpoenaed are entitled to the same fees and mileage expenses as are paid witnesses in the district courts of the United States. This comment has brought to light the need for an additional paragraph in I 20.711 pertaining to fees. This paragraph has been added. Except for the modification to the section heading. however, 20.712 is adopted as proposed. One comment was received pertaining to 20.713. This commenter pointed out that there were typographical errors in paragraph (b), in that references to 20.702(c)Wi and (c)(ii) should be to 20.702(c}{L) and (c)(2). These typographical errors have been corrected. Editorial changes have also been made to clarify paragraph (a). As originally proposed, it suggested that notices of hearings in simultaneously contested claims would always be given by the BVA itself. That was, of course, not accurate. With these corrections, the proposed amendment is adopted. Two comments were received regarding 20.714. The first commenter suggested, in essence, that what is "good cause" for the preparation of a written transcript should be clarified. No suggested grounds were furnished by the commenter. This suggestion has'not been adopted. The BVA has already

provided for the automatic transcription

of hearings in those situations where a

transcript is normally required. (See

paragraphs (a)(21 throgh (a)(5) of the section.) The provision that a transcript will also be prepared when good cause is shown is provided to allow for unanticipated circumstances. This is a matter best determined on a case-bycase basis. This commenter also suggested that provision be made for the automatic preparation of hearing transcripts when the hearing panel consists of fewer than three Members of the BVA. Such a requirement is not necessary. The audio tape recordings of hearings conducted by traveling Sections of the Board or by the BVA in Washington, DC, are available for review by any additional Board Members who may be assigned to the review of the case after a hearing has been conducted. Proposed 20.714(a)(41(iii). regarding the preparation of hearing transcripts in hearings by traveling Sections of the Board consisting of fewer than three Members of the Board. has been withdrawn. The second conmmenter asked that "good cause" in paragraph (a)(1) be defined to specifically include situations in which the appellant or a representative wishes to examine a transcript in order to assess whether to appeal to the United States Court of Veterans Appeals. This request has not been granted. There may well be cases in which this would furnish good cause for the preparation of a written transcript. but defining good cause in such a manner as to result in the automatic preparation of a written transcript on this basis is not warranted. Appellants and their representatives will normally have been present at BVA hearings and are well aware of what transpired at the hearing. Further, hearing tape recordings are available to them for review upon requesL Convenience alone is not an adequate basis for the considerable expenditure of government funds necessary to produce a written transcript. Editorial changes have been made in paragraph (c. This proposed amendment is adopted with the revisions noted. No comments, suggestions, or objections were received regarding the amendment of 20.715. This amendment is adopted as proposed, with the addition of minor editorial changes. The individual who commented on 20.706 offered the same remarks concerning 20.71& For the reasons noted in the discussion concerning 20.706, the commenter's suggestion has

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concerning obtaining independent medical opinions at the field level (55 FR 18601 dated May 3, 1990). Sections 20.901 through 20.903 are adopted as proposed. The General Counsel of the Department of Veterans Affairs issued a Precedent Opinion on May 17, 1990, which had the effect of invalidating the "administrative allowance" procedures of the BVA both in its current Rules of Practice and in these proposed regulations. (See O.G.C. Precedent Opinion 11-90, 55 FR 27750 dated July 5, 1990.) Such opinions are binding upon the BVA. (See 38 U.S.C. 7104(c).) Accordingly, all references to those procedures have been withdrawn from these proposed amendments. The material withdrawn includes proposed

and Reg4lations

not been adopted and the amendment is adopted as proposed, with minor editorial changes. Two comments were received concerning 20.717. The first commenter asked that loss of hearing tapes and transcripts be defined to include instances where the tape is generally unintelligible and instances where a written transcript contains substantial errors in transcription. These suggestions have not been adopted. The proposed amendment already contemplates unintelligible recordings. For example, factors to be considered in determining whether a new hearing will be granted include "the extent of the loss of the record in those cases where only a portion of a hearing tape is unintelligible * * *." (See paragraph (d).) The remedy for correcting errors in transcription is a motion for the correction of the transcript. (See 1 20.716.) This commenter also suggested that provision be made for reimbursing appellants and representatives for expenses which they might incur in attending a new hearing which is required because of loss of the record of a prior hearing due to mishandling or loss of a tape recording or transcript of a hearing by VA. VA is unaware of any legal authority for such reimbursement and the commenter offered none. This comment has not been adopted. The second commenter is the individual who commented on 20.706. This individual offered the same remarks concerning 20.717. For the reasons noted in the discussion concerning 20.706, the commenter's suggestion has not been adopted and the amendment is adopted as proposed. One comment was received concerning 20.800. The comment pertains to the limitations set out in 20.1304 which are merely crossreferenced in 20.800. This objection will be addressed in the discussion of the comments concerning 20.1304. Section 20.800 is adopted as proposed. No comments, suggestions, or objections were received regarding the amendment of 20.900. This amendment is adopted as proposed. One comment was received regarding 120.901 through 20.903. The commenter objected because these regulations do not refer to authority included in Public Law 100-687 for VA field facilities to obtain independent medical expert opinions. Regulations concerning obtaining opinions in the field are beyond the scope of these amendments, which pertain to practice before the Board of Veterans' Appeals. VA's Veterans Benefits Administration has already issued a final regulation

BVA decisions as part of a proposal in a companion document in this issue of the Federal Register. The remainder of 20.1000 is adopted as proposed. A list of examples of possible VA claimants and appellants other than veterans is given in several locations throughout these revisions, including 20.1001(a). This list has been expanded to include fiduciaries appointed to receive an individual's VA benefits on his or her behalf. This revision has been made to provide additional information. It does not represent any change in existing practices. Section 20.1001 is adopted as proposed with this revision and with the addition of the words "or evidence" at the end of the second sentence of paragraph (c)(2) to make it clear that additional evidence may now be submitted once a motion for reconsideration has been granted. Section 20.1002 is reserved.

Two comments were submitted regarding 20.1003. These comments are similar to the comments offered with respect to proposed provisions in 20.700 which restrict hearings solely for oral argument by a representative. The response to those comments applies. VA does agree, however, that the latitude permitted in this area in nonreconsideration hearings should also be permitted in the case of reconsideration hearings. Accordingly, modifications have been made to make this section compatible with the provisions of 20.700(b). With these revisions, the amendment is adopted. The provisions concerning finality of BVA decisions that were designated in the proposal as 20.1100 and 20.1101 are withdrawn. This is necessary as it 20.904. has been determined, after further No comments, suggestions, or consideration, that such provisions of objections were received regarding the proposal are, in some respects, proposed 20.905. Due to the inconsistent with the statutory withdrawal of 20.904, proposed provisions contained in 38 U.S.C. 7103. 20.905 has been redesignated as Instead, VA is publishing revised 20.904. The proposed amendment, as provisions dealing with this topic in two redesignated, is adopted. separate formats. First, language merely No comments, suggestions, or interpreting existing statutory provisions objections were received regarding the is set forth in 20.1100 as part of this amendments in proposed 20.1000 final rule. (Its provisions constitute through 20.1002. The provisions interpretative rules and, as such, are concerning reconsideration of BVA exempt from the notice and comment decisions that were designated in the provisions of 5 U.S.C. 553.) Second, proposal as 20.1000(d) and 20.1002 additional provisions concerning this are withdrawn. This is necessary as it topic are set forth as part of a proposal has been determined, after further in a companion notice of proposed consideration, that such provisions of rulemaking in this issue of the Federal the proposal are, in some respects, 'Register. inconsistent with the statutory Section 20.1101 is reserved. provisions contained in 38 U.S.C. 7103. No comments, suggestions, or Instead, VA is publishing additional objections were received regarding the provisions concerning reconsideration of amendments to 20.1102 through
20.1106, 20.1200, 20.1201, and 20.1300

through 1302. These amendments are adopted as proposed, with minor editorial changes to 20.1300 and the editorial revisions to 20.1105 and 20.1301 described in the following paragraphs. As proposed, the first sentence of 20.1105 read as follows: "When a claimant requests that a claim be reopened after an appellate decision has been promulgated and submits evidence in support thereof, a determination as to whether such evidence is new and material must be made and, if it is, as to whether it provides a new factual basis for allowing the claim." The requirement that a "new factual basis" be established was carried forward from current 38 CFR 19.194 which was, in turn, based on language contained in what is now 38 U.S.C. 7104(b) which provides that a claim may not again be considered "on the same factual basis" after it has been disallowed by the BVA.

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While that statutory language still remains, revisions to 3 U.S.C. 7104(b) made by the Veterans' Judicial Review Act (Pub. L 100-687) provide an exception in the case of claims reopened under what is now 38 U.S.C. 5106, a new section added by the same act as 38 U.S.C. 3008. Inasmuch as 520.1105 applies to reopened claims, the words "new factuar' have been withdrawn to make the first sentence of the section consistent with the new statutory provisions. Paragraph (b) of 20.1301 includes an example of a BVA decision locator number. The form of the locator numbers has recently changed due to the archiving of BVA decisions in computer records rather than on microfilm. Material indicating that the format of locator numbers has changed and an example of the new type of locator number have been added to the proposed amendment, inasmuch as the most recent EVA decisions have the new type of locator number. Material has also been added to note that the copies of BVA Index 1--0-1 which are available for public review at the BVA in Washington. DC, are located in the EVA's Research Center. (Of course, EVA decisions are not made available to the public in a form permitting the identification of individuals.) Two comments were received regarding 1 20.1303. One comment was that "it is suggested that the term 'nonprecedential' be more clearly defined and the relationship to decisions of the Court of Veterans Appeals." (sic) The meaning of the word "nonprecedential" (which appears in the section heading) is fully explained In the text of the section and there is little which would be useful which could be added. Nonprecedential has its usual meaning. That is, as has been VA's position for many years, a EVA decision in one case is not binding in another. This amendment, of course, applies only to EVA decisions and has no bearing on decisions by the United States Court of Veterans Appeals. The second commenter objected to the removal of the first sentence of the Rule of Practice upon which this amendment was based (current J 19.197). That sentence read as follows:. "The Board will strive for consistency in issuing its decisions." The commenter argued that removing the consistency provision was contrary to "due process'and Public Law 100-7. VA perceives no violation of either "due process" or of Public Law 100-687 through the removal of the sentence in question and the commenter offered no explanation of why it was thought that

4103

this was the case. The removal of the sentence was actually a matter of editorial judgment and did not represent any change in policy. In view of the concern expressed, however, similar language has been added. The second commenter also argued that the Board should be attempting to achieve more consistent opinions, especially in light of the creation of the United States Court of Veterans Appeals, by using EVA decisions as precedential guides. This suggestion has not been adopted. Several factors are behind the longstanding rule that EVA decisions are not precedential in nature. The majority of decisions by the BVA turn on unique fact situations. For example, the many facts which establish a particular degree of disability in one individual are almost never the same as in the case of another individual. Another, and perhaps the most important, factor is that proceedings before the EVA are ex parte in natu'e. Questions of fairness would arise by, in effect, making a BVA decision precedential when the Department has no opportunity to present and defend its position in the proceeding. Further, VA may not appeal a EVA decision to the United States Court of Veterans Appeals. (38 U.S.C. 7152(a)). In addition to these historical, and still valid, considerations, uniformity will be achieved on important questions through precedent decisions of the United States Court of Veterans Appeals. With the addition previously described, the amendment is adopted. Four comments were received regarding I 20.1304. This proposed section was essentially a duplicate of a proposed amendment of 38 CFR 19.174 (b) through (e) which was published for public comment on July 6, 1989 (54 FR 28445). The final version of that regulation was published on May
15, 1990. (55 FR 20144). Several changes

several changes were made. These included extending the time limit for submitting a request for a change in representation, submitting a request for a personal hearing and for submitting additional evidence following certification of an appeal to the BVA from 60 to 90 days, or until the date the appellate decision in the case is promulgated by the EVA, whichever comes first. Section 20.1304 has been modified to conform to the final version
of 38 CFR 19.174.

arising out of comments received were incorporated into the final version of 36
CFR 19.174.

One of the four commenters on proposed 1 20.1304 incorporated its prior comments concerning the amendment of 38 CFR 19.174 by reference and submitted an affidavit in support of those comments. Two of the other three commenters offered objections similar to those raised concerning the amendment of 38 CFR 19.174. The comments concerning the amendment of 38 CFR 19.174 were exhaustively discussed in the Federal Register at the time that the final version of that regulation was adopted. These three commenters are referred to that discussion. As noted in that discussion,

The fourth commenter pointed out, correctly, that the reference to 19.112(b) should be to 19.37(b). This error has been corrected. A list of examples of possible VA claimants and appellants other than veterans is given in several locations throughout these revisions, including this section. This list has been expanded to include fiduciaries appointed to receive an individual's VA benefits on his or her behalf. This revision has been made to provide additional informatiomn It does not represent any change in existing practices. Clarifying material has been added to the first sentence of paragraph (d) to point out that the only evidence provided to all contesting claimants in a contested claim is evidence which is pertinent to the matter contested. With the revisions noted, this amendment is adopted. Proposed I 20.1305 has been withdrawn. The purpose of that section was to provide transitional effective date rules in the event that these amendments were adopted prior to September 1. 1989the effective date of many of the provisions of Public Law 100-687. There was a typesetting error in Appendix A to part 20. The numbers "20.700-20.717" at the bottom of the lefthand column, beneath the number "20.1304," should have been printed in the second column after the comma which appears after the citation "38 CFR 3.103(c)" which is in the second column directly to the right of the number "20.1304" in the left-hand column. This error has been corrected. The appendix has also been corrected to reflect the changes discussed in previous pages.
With these correctons, the appendix is

adopted. The Secretary has determined that these regulations do not contain a major rule as that term is defined by Executive Order 12291, Federal Regulation. The regulations will not have a $100 million annual effect on the economy and will not cause a maw&increase in costs or prices for anyone. They will have no significant adverse effects on

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14.634 and 14.635 [Removed]
Subpart 8-Appeals Processing by Agency of Original Jurisdiction 19.25 Notification by agency of original jurisdiction of right to appeal. 19.26 Action by agency of original jurisdiction on Notice of Disagreement. 19.27 Adequacy of Notice of Disagreement questioned within the agency of original jurisdiction. 19.28 Determination that a Notice of Disagreement is inadequate protested by claimant or representative. 19.29 Statement of the Case. 19.30 Furnishing the Statement of the Case and instructions for filing a Substantive Appeal. 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 Appeal questioned within the agency of original jurisdiction. 19.34 Determination that Notice of Disagreement or Substantive Appeal was not timely filed protested by claimant or representative. 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 original jurisdiction after an appeal has been initiated. 19.38 Action by agency of original jurisdiction when remand received. 19.39-19.49 [Reserved] Subpart C-Administrative Appeals 19.50 Nature and form of administrative appeal. 19.51 Officials authorized to file administrative appeals and time limits for filing. 19.52 Notification to claimant of filing of administrative appeal. 19.53 Restriction as to change in payments pending determination of administratih e appeals. 19.54-19.74 [Reserved] Subpert D-Hearings Before Traveling Sections 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 been requested. 19.78-19.99 [Reserved] Subpart E-Simultaneously Contested Claims 19.100 Notification of right to appeal in simultaneously contested claims. 19.101 Notice to contesting parties or. receipt of Notice of Disagreement in simultaneously contested claims. 19.102 Notice of appeal to other contesting parties in simultaneously contested claims. Appendix A to Part 19-Cross-Refe"ences (Authority: 38 U.S.C. 501(a).

competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreignbased enterprises in domestic or export markets. The Secretary hereby certifies that these regulatory amendments will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. The reason for this certification is that the regulations have only a limited effect on claimants/appellants and their representatives. Pursuant to 5 U.S.C. 005(b), these regulations are therefore exempt from the initial and final regulatory flexibility analyses requirements of sections 603 and 604. The information collection requirements contained in 20.202, 20.608, 20.609, 20.610, 20.702, and 20.704 of these regulations have been approved by the Office of Management and Budget (OMB) under OMB control number 2900-0085. There are no Catalog of Federal Domestic Assistance numbers associated with these regulatory amendments. List of Subjects 38 CFR Part 14 Claims, Foreign relations, Government employees, Lawyers, Legal services, Organization and functions (Government agencies), Reporting and recordkeeping requirements, Surety bonds, Trusts and trustees, Veterans. 38 CFR Part19 Administrative practice and procedure, Claims, Veterans. 38 CFR Part20 Administrative practice and procedure, Claims, Lawyers, Legal services, Veterans. Approved: November 6, 1991. Edward J.Derwinski, Secretory of VeteransAffairs. For the reasons set out in the preamble, 38 CFR parts 14 and 19 are amended, and 38 CFR part 20 is added, as set forth below: PART 14-LEGAL SERVICES, GENERAL COUNSEL 1. The authority citation for part 14 is revised to read as follows:
Authority: 38 U.S.C. 501, 5901-5905.

14.636 and 14.637 [Redesignated as 14.634 and 14.635]

2. Sections 14.634 and 14.635 are removed and 14.636 and 14.637 are redesignated as new 14.634 and 14.635 respectively. 3. In newly designated 14.634, the last sentence is removed and an authority citation and cross-references are added at the end of the section to read as follows: 14.634 Banks or trust companies acting as guardians.
(Authority: 38 U.S.C. 5903, 5904) Cross-References: Payment of

Representative's Fees in Proceedings Before Department of Veterans Affairs Personnel and Before the Board of Veterans' Appeals. See 20.609 of this chapter. Payment of Representative's Expenses in Proceedings Before Department of Veterans Affairs Personnel and Before the Board of Veterans' Appeals. See J 20.610 of this chapter. 4. In newly designated 14.635, crossreferences are added at the end of the section to read as follows: 14.635 Office space and facilities. Cross-References: Payment of Representative's Fees in Proceedings Before Department of Veterans Affairs Personnel and Before the Board of Veterans' Appeals. See 20.609 of this chapter. Payment of Representative's Expenses in Proceedings Before Department of Veterans Affairs Personnel 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 of Veterans' Appeals
Sec.

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-Appeals Regulations. 19.15-19.24 [Reserved]

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Federal Register / Vol. 57, No. 22 Subpart A-Operation of the Board of Veterans' Appeals 19.1 Establishment of the Board. The Board of Veterans' Appeals is established by authority of, and functions pursuant to, title 38, United States 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 and stenographic personnel. (Authority: 38 U.S.C. 501(a). 512. 7101(a)) 19.3 Appointment, assignment, and rotation of Members. (a) Appointment of Members. The Chairman is appointed by the President of the United States, by and with the advice and consent of the United States Senate. Members of the Board, including the Vice Chairman, are appointed by the Secretary upon the recommendation of the Chairman with the approval of the President of the United States. Deputy Vice Chairmen are Members of the Board who are appointed to that office by the Secretary upon the recommendation of the Chairman.
(Authority: 38 U.S.C. 501(a), 512, 7101(b))

/ Monday, February 3, 1992 / Rules and Regulations

4105

in writing on the questions presented on appeal. (Authority: 38 U.S.C. 7102, 7104) 19.5 Criteria governing disposition of appeals. In the consideration of appeals, the Board is bound by applicable statutes, regulations of the Department of Veterans Affairs, and precedent opinions of the General Counsel of the Department of Veterans Affairs. The Board is not bound by Department manuals, circulars, or similar administrative issues. (Authority: 38 U.S.C. 501(a), 7104(c)) 19.6 [Reserved] 19.7 The decision. (a) Decisions basedon entire record. The appellant will not be presumed to be in agreement with any statement of fact contained in a Statement of the Case to which no exception is taken. Decisions of the Board are based on a review of the entire record. (Authority: 38 U.S.C. 7104(a), 7105(d)(4)) (b) Content.The decision of the Board will be in writing and will set forth specifically the issue or issues under appellate consideration. Except with respect to issues remanded to the agency of original jurisdiction for further development of the case and appeals which are dismissed because the Issue has been resolved by administrative action or because an appellant seeking nonmonetary benefits has died while the appeal was pending, the decision will also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, the reasons or bases for those findings and conclusions, and an order granting or denying the benefit or benefits sought on appeal or dismissing the appeal. (Authority: 38 U.S.C. 7104(d)) 19.8 Decision notification.
After a decision has been rendered by

written decision which will be mailed only to that appellant and his or her representative. (Authority: 38 U.S.C. 7104(e)) 19.9 Remand for further development When, during the course of review, it is determined that further evidence or clarification of the evidence or correction of a procedural defect is essential for a proper appellate decision, a Section of the Board shall remand the case to the agency of original jurisdiction, specifying the action to be undertaken. (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 to conduct the reconsideration. (b) Number of Members constituting a reconsiderationSection. The number of Board Members assigned to the reviewing Section will be determined by increasing the number of Members who participated in the original decision by not less than three additional Members, in increments of three Members. Except when necessary to obtain a majority opinion, a reconsideration Section will not exceed nine Members. (c) Members includedin the reconsideration Section. The reconsideration Section will include those Members who participated in the original decision who are available, additional Members assigned by the Chairman to substitute for Members who participated in the decision being reconsidered who are no longer available, and additional Members assigned in accordance with paragraph (b) of this section. In the case of Travel Board hearings involving reconsideration of a prior Board decision, the Members of the traveling Section of the Board will be included in the expanded Section established pursuant to paragraph (b) of this section. If the prior Board decision being reconsidered involves questions concerning post-traumatic stress disorder or radiation, Agent Orange, or asbestos exposure, the traveling Section will be included in an expanded Section which also includes Board Members specializing in those issues. (Authority: 38 U.S.C. 7102, 7103, 7110)

(b) Assignment. The Chairman may divide the Board into Sections of three Members, assign Members of the Board to each such Section, and designate the Chief Member of each such Section. From time to time, a Member may be designated as a Chief Member or a Chief Member may be redesignated as a Member. (Authority: 38 U.S.C. 7102) (c) Rotation. The Chairman may from time to time rotate the Members of the Sections. (Authority: 38 U.S.C. 7102) (d) Inability to serve. If, as a result of a vacancy, absence, or for reasons set forth in 19.12 of this part, a Member of a Section of the Board is unable to participate in the disposition of an appeal before the Section, the Chairman may assign or substitute another Member or direct the Section to proceed without any additional assignment or substitution 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 appellate jurisdiction, consider all applications on appeal properly before it, conduct hearings on appeal, evaluate the evidence of record, and enter decisions

the Board, all parties to the appeal and the representatives, if any, will be notified of the results by the mailing of a copy of the written decision to the parties and their representatives at their last known addresses. In the case of appeals involving contesting claimants, the content of the Board's decision will be limited to that information which directly affects the payment or potential payment of the benefit(s) which is (are) the subject of the contested claim. Any Board decision in the same case, but involving separate appeal issues which are not a part of the contested claim, will be made the subject of a separate

19.12 Disqualification of Members.

(a) General.A Member of the Board will disqualify himself or herself in a hearing or decision on an appeal if that appeal involves a determination in

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VoL 57, No. 22 / Monday, February 3, 1992 / Rules and Regulations a personal hearing and the right to representation. The agency of original jurisdiction will provide this information in each notification of a determination of entitlement or nonentitlement to Department of Veterans Affairs benefits. (Authority: 38 U.S.C. 7105(a)) citations, and a discussion of how such
laws and regulations affect the determination; and (c) The determination of the agency of original jurisdiction on each issue and the reasons for each such determination with respect to which disagreement has been expressed. (Authority: 36 U.S.C. 7105(d)(1)) 19.30 Furnishing the Statement of the Case and Instructions for filing a Substantive Appeal. (a) To whom the Statement of the Caseis furnished.The Statement of the Case will be forwarded to the appellant at the latest address of record and a separate copy provided to his or her representative (if any). (b) Informationfurnished with the Statement of the Case. With the Statement of the Case, the appellant and the representative will be furnished information on the right to file, and time limit for filing, a Substantive Appeal: information on hearing and representation rights; and a VA Form 19, "Appeal to Board of Veterans' Appeals." (Authority: 38 U.S.C. 7105) 19.31 Supplemental Statement of the Case. A Supplemental Statement of the Case, so identified, will be furnished to the appellant and his or her representative, if any, when additional pertinent evidence is received after a Statement of the Case or the most recent Supplemental Statement of the Case has been issued, when a material defect in the Statement of the Case or a prior Supplemental Statement of the Case is discovered, or when. for any other reason, the Statement of the Case or a prior Supplemental Statement of the Case is inadequate. A Supplemental Statement of the Case will also be issued following development pursuant to a remand by the Board unless the only purpose of the remand is to assemble records previously considered by the agency of original jurisdiction and properly discussed in a prior Statement of the Case or Supplemental Statement of the Case or unless the Board specifies in the remand that a Supplemental Statement of the Case is not required. If the case is remanded to cure a procedural defect, a Supplemental Statement of the Case will be issued to assure full notification to the appellant of the status of the case, unless the Board directs otherwise. A Supplemental Statement of the Case is required following a hearing on appeal before field personnel when new documentary evidence or evidence in

which he or she participated or had supervisory responsibility in the agency of original jurisdiction prior to his or her appointment as a Member of the Board, or where there are other circumstances which might give the impression of bias either for or against the appellant. (Authority:. 38 U.S.C. 7102,7104) (b) Appeal on same issue subsequent to decision on administrativeappeal. Members of the Board who made the decision on an administrative appeal will disqualify themselves from acting on a subsequent appeal by the claimant on the same issue.
(Authority: 38 U.S.C. 7102,7104. 7106)

(c) Disqualificationof Members by the Chairman.The Chairman of the Board, on his or her own motion, may disqualify a Member from acting in an appeal on the grounds set forth in paragraphs (a) and (b) of this section and in those cases where a Member is unable or unwilling to act. (Authority: 36 U.S.C. 7102. 7104. 7106) 19.13 Delegation of authority to Chairmen and Vice Chairmen, Board of Veteran' Appeals. The Chairman and/or Vice Chairman have authority delegated by the Secretary of Veterans Affairs to: (a) Approve the assumption of appellate jurisdiction of an adjudicative determination which has not become final in order to grant a benefit, and (b) Order VA Central Office investigations of matters before the Board. (Authority: 38 U.S.C. 303, 512(a)) 1914 Delegation of authority-Appeals Regulations. (a) The authority exercised by the Chairman of the Board of Veterans' Appeals described in 19.3(b), 19.3(c), and 19.12(c) of this part may also be exercised by the Vice Chairman of the Board. (b) The authority exercised by the Chairman of the Board of Veterans' Appeals described in 19.3(d) and 19.11 of this part may also be exercised by the Vice Chairman of the Board and by Deputy Vice Chairmen of the Board.
(Authority: 38 U.S.C. 512(a), 7102, 7104)'

19.26 Action by agency of original JurisdIction on Notice of Disagreemet. When a Notice of Disagreement is timely filed, the agency of original jurisdiction must reexamine the claim and determine if additional review or development is warranted. When a Notice of Disagreement is received following a multiple-issue determination and it is not clear which issue, or issues, the claimant desires to appeal, clarification sufficient to identify the issue, or issues, being appealed should be requested from the claimant or his or her representative. If no preliminary action is required, or when it is completed, the agency of original jurisdiction must prepare a Statement of the Case pursuant to 19.29 of this part, unless the matter is resolved by granting the benefits sought on appeal or the Notice of Disagreement is withdrawn by the appellant or his or her representative. (Authority: 38 US. 7105(d)(1))
19.27 Adequacy of Notice of Disagreement questioned within the agency of original Jutsdlctlon. If, within the agency of original jurisdiction, there is a question as to the adequacy of a Notice of Disagreement. the procedures for an administrative appeal must be followed. (Authority: 38 U.S.C. 7105, 7106) 19.28 Determination that a Notice of Disagreement IsInadequate protested by claimant or representative. Whether a Notice of Disagreement is adequate is an appealable issue. If the claimant or his or her representative protests an adverse determination made by the agency of original jurisdiction with respect to the adequacy of a Notice of Disagreement, the claimant will be furnished 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 appellant to present written and/or oral arguments before the Board of Veterans' Appeals. It must contain: (a) A summary of the evidence in the case relating to the issue or issues with which the appellant or representative has expressed disagreement: (b) A summary of the applicable laws and regulations, with appropriate

19.15-19.24 [Reserved)
Subpart B-Appeals Processing by Agency of Original Jurisdiction 19.25 Notification by agency of original Jurisdiction of right to appeal. The claimant and his or her representative, if any, will be informed of appellate rights provided by 38 U.S.C. chapters 71 and 72. including the right to

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Federal Register / Vol. 57, No. 22 / Monday, February 3, 1992 / Rules and Regulations the form of testimony concerning the relevant facts or expert opinion is presented, but is not required if only argument is presented.
(Authority: 38 U.S.C. 7105(d))

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19.32 Closing of appeal for failure to respond to Statement of the Case. The agency of original jurisdiction may close the appeal without notice to an appellant or his or her representative for failure to respond to a Statement of the Case within the period allowed. However, if a Substantive Appeal is subsequently received within the 1-year appeal period (60-day appeal period for simultaneously contested claims), the appeal will be considered to be reactivated. (Authority: 38 U.S.C. 7105(d)(3)) 19.33 Timely filing of Notice of Disagreement or Substantive Appeal questioned within the agency of original Jurisdiction. If, within the agency of original jurisdiction, there is a question as to the timely filing of a Notice of Disagreement or Substantive Appeal, the procedures for an administrative appeal must be followed. (Authority: 38 U.S.C. 7105, 7106) 19.34 Determination that Notice of Disagreement or Substantive Appeal was not timely filed protested by claimant or representative. Whether a Notice of Disagreement or Substantive Appeal has been filed on time is an appealable issue. If the claimant or his or her representative protests an adverse determination made by the agency of original jurisdiction with respect to timely filing of the Notice of Disagreement or Substantive Appeal, the claimant will be furnished a Statement of the Case. (Authority: 38 U.S.C. 7105) 19.35 Certification of appeals. Following receipt of the Substantive Appeal, the agency of original jurisdiction will certify the case to the Board of Veterans' Appeals. Certification is accomplished by the completion of VA Form 1-8, "Certification of Appeal." The certification is used for administrative purposes and does not serve to either confer or deprive the Board of Veterans' Appeals of jurisdiction over an issue. (Authority: 38 U.S.C. 7105) 19.36 Notification of certification of appeal and transfer of appellate record. When an appeal is certified to the Board of Veterans' Appeals for appellate review and the appellate record is transferred to the Board, the

appellant and his or her representative, if any, will be notified in writing of the certification and transfer and of the time limit for requesting a change in representation, for requesting a personal hearing, and for submitting additional evidence described in Rule of Practice 1304 ( 20.1304 of this chapter). (Authority: 38 U.S.C. 7105) 19.37 Consideration of additional evidence received by the agency of original jurisdiction after an appeal has been Initiated. (a) Evidence receivedpriorto transfer of records to Boardof Veterans' Appeals. Evidence received by the agency of original jurisdiction prior to transfer of the records to the Board of Veterans' Appeals after an appeal has been initiated (including evidence received after certification has been completed) will be referred to the appropriate rating or authorization activity for review and disposition. If the Statement of the Case and any prior Supplemental Statements of the Case were prepared before the receipt of the additional evidence, a Supplemental Statement of the Case will be furnished to the appellant and his or her representative as provided in 19.31 of this part, unless the additional evidence received duplicates evidence previously of record which was discussed in the Statement of the Case or a prior Supplemental Statement of the Case or the additional evidence is not relevant to the issue, or issues, on appeal. (b) Evidence received after transferof records to the Board of Veterans' Appeals. Additional evidence received by the agency of original jurisdiction after the records have been transferred to the Board of Veterans' Appeals for appellate consideration will be forwarded to the Board if it has a bearing on the appellate issue or issues. The Board will then determine what action is required with respect to the additional evidence. (Authority: 38 U.S.C. 7105(d)(1)) 19.38 Action by agency of original jurisdiction when remand received. When a case is remanded by the Board of Veterans' Appeals, the agency of original jurisdiction will complete the additional development of the evidence or procedural development required. Following completion of the development, the case will be reviewed to determine whether the additional development, together with the evidence which was previously of record, supports the allowance of all benefits sought on appeal. If so, the Board and the appellant and his or her representative, if any, will be promptly

informed. If any benefits sought on appeal remain denied following this review, the agency of original jurisdiction will issue a Supplemental Statement of the Case concerning the additional development pertaining to those issues in accordance with the provisions of 19.31 of this part. Following the 60-day period allowed for a response to the Supplemental Statement of the Case pursuant to Rule of Practice 302, paragraph (c) ( 20.302(c) of this chapter), the case will be returned to the Board for further appellate processing unless the appeal is withdrawn or review of the response to the Supplemental Statement of the Case results in the allowance of all benefits sought on appeal. Remanded cases will not be closed for failure to respond to the 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 administrative appeal. (a) General.An administrative appeal from an agency of original jurisdiction determination is an appeal taken by an official of the Department of Veterans Affairs authorized to do so to resolve a conflict of opinion or a question pertaining to a claim involving benefits under laws administered by the Department of Veterans Affairs. Such appeals may be taken not only from determinations involving dissenting opinions, but also from unanimous determinations denying or allowing the benefit claimed in whole or in part. (b) Form of Appeal. An administrative appeal is entered by a memorandum entitled "Administrative Appeal" in which the issues and the basis for the appeal are set forth.
(Authority: 38 U.S.C. 7106)

19.51 Officials authorized to file administrative appeals and time limits for filing. The Secretary of Veterans Affairs authorizes certain officials of the Department of Veterans Affairs to file administrative appeals within specified time limits, as follows: (a) CentralOffice-{1) Officials. The Chief Benefits Director or a Service Director of the Veterans Benefits Administration, the Chief Medical Director or a service director of the Veterans Health Administration, and the General Counsel. (2) Time limit. Such officials must file an administrative appeal within 1 year

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Federal Register / Vol. 57, No. 22 / Monday, February 3, 1992 / Rules and Regulations scheduled in the order in which requests for such hearings are received by Department of Veterans Affairs field facilities. Any requests submitted directly to the Board will be transferred to the appropriate field facility and will not be considered to have been filed for docketing purposes until received by the applicable field facility. Each Departmental facility generating appeals activity will: (a) Mark each written request for a Travel Board hearing to show the date of receipt, and (b) Maintain a formal log showing, in the order that each request for a Travel Board hearing is received: (1)The date that each request for a Travel 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 the appellant failed to appear for the hearing. (Authority: 38 U.S.C. 7110) 19.76 Notice of time and place of Travel
Board hearing.

from the date of mailing notice of such determination to the claimant. jurisdiction(b)Agencies of original (1) Officials. Directors, adjudication officers, and officials at comparable levels in field offices deciding any claims for benefits, from any determination originating within their established jurisdiction. (2) Time limit The Director or comparable official must file an administrative appeal within 6 months from the date of mailing notice of the determination to the claimant. Officials below the level of Director must do so within 00 days from such date. (c) The date of mailing.With respect to paragraphs (a) and [b) of this section. the date of mailing notice of the determination to the claimant will be presumed to be the same as the date of the letter of notification to the claimant.
(Authority: 38 U.S.C. 7106)

hearing. A Statement of the Case is not required when the only issue to be considered by the traveling Section of the Board is the reconsideration of a prior Board of Veterans' Appeals decision. (Authority: 38 U.S.C. 7105(d)(1). 7110) 19.78-19.99 [Reservedl Subpart E-Simultaneously Contested Claims
19.100 Notification of right to appeal In simultaneously contested claims.

All interested parties will be specifically notified of the action taken by the agency of original jurisdiction in a simultaneously contested claim and of the right and time limit for initiation of an appeal, as well as hearing and representation rights. (Authority: 38 U.S.C. 7105A(a)l 19.101 Notice to contesting parties on receipt of Notice of Disagreement in simultaneously contested claims. Upon the filing of a Notice of Disagreement in a simultaneously contested claim, all interested parties and their representatives will be furnished a copy of the Statement of the Case. The Statement of the Case so furnished will contain only information which directly affects the payment or potential payment of the benefitqs) which is (are) the subject of that contested claim. The interested parties who filed Notices of Disagreement will be duly notified of the right to file, and the time limit within which to file, a Substantive Appeal and will be furnished with VA Form 1-9, "Appeal to Board of Veterans' Appeals."
(Authority: 38 U.S.C. 7105Afb)) 19.102 Nodce of appeal to other

19.52 Notification to claimant of filing of administrative appeal. When an administrative appeal is entered, the claimant and his or her representative, if any, will be promptly furnished a copy of the memorandum entitled "Administrative Appeal," or an adequate summary thereof, outlining the question at issue. They will be allowed a period of 60 days to join in the appeal if they so desire. The claimant will also be advised of the effect of such action and of the preservation of normal appeal rights if he or she does not elect to join in the administrative appeal.
(Authority: 38 U.S.C 710)

19.53 Restriction "so change in payments pending determinstion of administrative appeals. If an administrative appeal is taken from a review or determination by the agency of original jurisdiction pursuant to 19.50 and 19.51 of this part, that review or determination may not be used to effect any change in payments until after a decision is made by the Board of Veterans' Appeals. (Authority: 38 U.S.C. 7106)
19.54-19.74 [Reserved]

The agency of original jurisdiction will notify the appellant and his or her representative of the place and time of a Travel Board hearing not less than 60 days prior to the hearing date. This time limitation does not apply to hearings which have been rescheduled due to a postponement requested by an appellant, or on his or her behalf, or due to the prior failure of an appellant to appear at a scheduled Travel Board hearing with good cause. The requirement will also be deemed to have been waived if an appellant accepts an earlier hearing date due to the cancellation of another previously scheduled Travel Board hearing. (Authority: 38 U.S.C. 7110) 19.77 Providing Statement of the Case when Travel Board hearing has been requested. If not previously furnished, the appellant and his or her representative will be provided with a Statement of the Case not later than the date on which the agency of original jurisdiction furnishes them with notification of the place and time of the Travel Board

Subparl D--Hearings Before Traveling Sections of the Board of Veterans' Appeals 19.75 Travel Board healing docket. Travel Board hearings will be

contesting parties in s multaneously contested claims. When a Substantive Appeal is filed in a simultaneously contested claim, the content of the Substantive Appeal will be furnished to the other contesting parties to the extent that it contains information which could directly affect the payment or potential payment of the benefit which is the subject of the contested claim.
(Authority: 38 U.S.C. 7105A(b)I

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Vol. 57, No. 22

Monday, February 3, 1992 / Rules and Regulations

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APPENDIX A TO PART 19-CROSS-FPEFRENCES Sec. 19.5-..... 36 CFR Clus-10noe 4.50 Title of cross-referenced marleral or comment

............. . .. See fe *leodvMa vpeionst" of te General Counsel of the Department of Veterans Affairs. 1....3......... ............ Rub 1Jft fttwoeMi~mtakre ofa60" decisions. 19.7 .................... 38 CFR 20.905 ............ .......... de 9a Va.m. cison 19.13 .................. 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 confasidclakn 19.26...... 38 CPR 2002....................................... Rude 302. Trne Nmrt for Mig 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 Apeal 19.32 ........ 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" C4ea 38 CFA 20.501 .................................................... Re 501. Time imits for fling Notice of Disagreament Substanfto APPeaL and esponse to S4l**ef Stotensn ofte Case in smo/tneousy contese 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 da 19.101..... 38 CFR 19.30 ......................................... FurishW te Statement of the Case and Instructions for fing a Substantive Appeal
38 CFR 2D.1303 .

. New Part 20. Board of Veterans* Appeals: Rules of Practice, is added to 38 CFR to read as follows: PART 20-BOARD OF VETERANS APPEALS: RULES OF PRACTICE

20.306 Rule 306. Legal holidays. 20.307-20.399 IReserved] Subpart E-Administrative Appeals 20.400 Rule 400. Action by claimant or representative on notification of administrative appeal. 20.401 Rule 401. 6l ect of decision on ailministrative or merged appeal on claimant's appellate rights.

Subpart A-Geneal
Sec.

20.609 Rule M. Payment of representative's 6eesin proceedings before Department of Veterans Affairs field personnel and before the Board of Vetera"a' Appeals. 20.610 Rule SIB. Paymen of repesentative's expenses ia prooeediegs before Department o Veterans Affairs field

personnel and before ie Board of Veterans' Appeals.

20.611 Rule 611. Continuation of representation following death of a

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]

20.402-0.499

tReserved]

Subpart F-Shnultaneously Contested 20.500 Rule 50. Who can file an appeal in simultaneously contested claims. 20.501 Ride M0.Tne limits for filing Notice of Oisagreemeat, Substentive Appeal. and response to Supplemental Statement of the Case in simultaneously contested

claimant or appellant. 20.612-20.699 [Reserved] Subpart H-4ibtW on Appeal 20.70 Rule 760. General. 20.M01 Rule 701. Who may present oral argument 20.702 Rule 702. Scheduling and notice of hearings conducted by the Board of
Veteran' Appeals in Washington. DC. and by agency of original jurisdiction personnel actirS on behalf of The Board

Subpmt &-The Dom

20.100 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]

,tcim.
20.-52 Rule 502. Time limit for response to notice of appeal by another contesting party in a simultaneously contested claim. 20.503 Rule 503. Extension of time for filing a Substantive Appeal in simultaneously contested claims. 20.,M4 Rule S04. Notices sent to last addresses of record in simultaneously contested 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.

S~ n C-Coinien;ernn anW Perfecton of Appeal

20.20 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 Appeal 20.204 Rule 204. Withdrawal of Notice of Disagreement or Substantive Appeal.

of Veterans' Appeals at field facilities,

20.703 Rule 703. When right to Travel Board

hearing arises.
20.704 Rule 704. Scheduling and notice of

hearings conducted by traveling Secfions of he Board of Veterans' Appeals at Department of Veterans Affairs field
Lacilities.

20.205-20.2g lReservedl
Subpart D-FIIng

20.705 Rule 705. Where hearings on appeal are conducted.

20.706 Rule 706. Functions of the presiding

20.300 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 AppeaL and response to Supplemental Statement 20.303

Member. 29.707 Rle 797.VAen ahear4g paiel makes the final eppeflate decision. 20.706 Rule 76. Prehearing conference.
20.700 Rule 709. Procurement of additional

of the Case.
Rae 303. Extension of time for filing

Substantive Appeal and response to

Supplemental Statement of the Case.

20.304 Rule 304. Filing additional evidence does not extend time limit for appeal. 20.305 Rule 395. Computation of lime limit

for filing.

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 incident to heariags not reimburnble by the Government. 20.713 Rule 713. Hearings in simultaneously o tested ciams. 20.714 Rule 714L Record of tueuring.

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Federal Register / Vol. 57, No. 22 / Monday, February 3, 1992 / Rules and Regulations Subpart A-General 20.1 Rule 1.Purpose and construction of Rules of Practice. (a) Purpose.These rules establish the
practices and procedures governing (g) Claimantmeans a person who has filed a claim, as defined by paragraph (f) of this section. (h) Hearingon appealmeans a hearing conducted after a Notice of Disagreement has been filed in which argument and/or testimony is presented concerning the determination, or determinations, by the agency of original jurisdiction being appealed. (i) Law student means an individual pursuing a Juris Doctor or equivalent degree at a school approved by a recognized accrediting association. (j) Legal intern means a graduate of a law school, which has been approved by a recognized accrediting association, who has not yet been admitted to a State bar. (k) Motion means a request that the Board rule on some question which is subsidiary to the ultimate decision on the outcome of an appeal. For example, the questions of whether a representative's fees are reasonable or whether additional evidence may be submitted more than 90 days after certification of an appeal to the Board are raised by motion (see Rule 609, paragraph (i), and Rule 1304, paragraph (b) 20.609(i) and 20.1304(b) of this part). Unless raised orally at a personal hearing before Members of the Board, motions for consideration by the Board must be made in writing. No formal type of document is required. The motion may be in the form of a letter which contains the necessary information. (1)Paralegalmeans a graduate of a course of paralegal instruction given by a school which has been approved by a recognized accrediting association, or an individual who has equivalent legal experience. (m) Simultaneously contested claim refers to the situation in which the allowance of one claim results in the disallowance of another claim involving the same benefit or the allowance of one claim results in the payment of a lesser benefit to another claimant. (n) State includes any State, possession, territory, or Commonwealth of the United States, as well as the District 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 is the Board of Veterans' Appeals. (b) Business hours. The Board is open during business hours on all days except Saturday, Sunday and legal holidays.

20.715 Rule 715. Recording of hearing by appellant or representative. 20.716 Rule 716. Correction of hearing transcripts. 20.717 Rule 717. Loss of hearing tapes or transcripts-motion for new hearing. 20.718-20.799 [Reserved] Subpart I-Evidence 20.800 Rule 800. Submission of additional evidence after initiation of appeal. 20.801-20.899 [Reserved] Subpart J-Acton by the Board 20.900 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 for response. 20.904 Rule 904. Vacating a decision. 20.905-20.999 [Reserved] Subpart K-Reconsderation 20.1000 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-Finallty 20.1100 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 jurisdiction where appeal is not perfected. 20.1104 Rule 1104. Finality of determinations of the agency of original jurisdiction affirmed on appeal. 20.1105 Rule 1105. New claim after promulgation of appellate decision. 20.1106 Rule 1106. Claim for death benefits by survivor-prior unfavorable decisions during veteran's lifetime. 20.1107-20.1199 [Reserved] Subpart M-Privacy Act 20.1200 Rule 1200. Privacy Act requestappeal pending. 20.1201 Rule 1201. Amendment of appellate decisions. 20.1202-20.1299 [Reserved] Subpart N-Miscellaneous 20.1300 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 personal hearing, or submission of additional evidence following certification of an appeal to the Board of Veterans' Appeals. Appendix A to Part 20-Cross-References Authority: 38 U.S.C. 501(a).

appeals to the Board of Veterans'

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)

20.2 Rule 2.Procedure Inabsence of specific Rule of Practice.

Where in any instance there is no applicable rule or procedure, the Chairman may prescribe a procedure which is consistent with the provisions

of title 38, United States Code, and these

rules. (Authority: 38 U.S.C. 501(a), 512(a), 7102,
7104)

20.3 Rule 3.DefInitions. As used in these Rules: (a] Agency of originaljurisdiction

means the Department of Veterans Affairs regional office, medical center, clinic, cemetery, or other Department of Veterans Affairs facility which made the initial determination on a claim or, if the applicable records are later permanently

transferred to another Department of

Veterans Affairs facility, its successor. (b) Agent means a person who has met the standards and qualifications for accreditation outlined in 14.629(b) of this chapter and who has been properly designated under the provisions of Rule 604 ( 20.604 of this part). It does not

include representatives recognized under Rules 602, 603, or 605 ( 20.602,

20.603, or 20.605 of this part). (c) Appellant means a claimant who has initiated an appeal to the Board of Veterans' Appeals by filing a Notice of Disagreement pursuant to the provisions of 38 U.S.C. 7105. (d) Attorney-at-law means a member in good standing of a State bar. (e) Benefit means any payment,

service, commodity, function, or status, entitlement to which is determined under laws administered by the Department of Veterans Affairs pertaining to veterans and their dependents and survivors.
(f) Claim means application made

under title 38, United States Code, and

implementing directives for entitlement to Department of Veterans Affairs

benefits or for the continuation or increase of such benefits, or the defense of a proposed agency adverse action concerning benefits.

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Federal Regisler I Vol. 57. No. 22

Business hours are from 8 a.m. to 430 p.m. (c) Mailingaddress. Except as otherwise noted in these Rules, mail to the 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))

/ Monday. February 3. I=

/ Rules and Rognatio m

41L1

(12) Educational Assistane Test Program (10 U.S.C. chapter 107. 38 CFR 2L5701 et seq.. (13) Educational Assistance Pilot Program (10 ULSC. chapter 107. 38 CFR 21.5290e tseq. (14) Matters arising under National Service Life Insurance and United States Government Life Insurance (38 U.S.C. chapter 19). (15) Payment or reimbursement for 20.101 Rule 101. JursdIction of the unauthorized medical expenses [38 Board. U.S.C. 1728). fa) General.All questions of law and [16) Burial benefits and burial in fact necessary to a decision by the National Cemeteries (38 U.S.C. chapters Secretary of Veterans Affairs under a 23 and 24) law that affects the provision of benefits (17) Benefits for persons disabled by by the Secretary to veterans or their medical treatment or vocational dependents or survivors are subject to rehabilitation (38 U.S.C. 1151). review on appeal to the Secretary. (18) Basic eligibility for home, Decisions in such appeals are made by condominium and mobile home loans as the Board of Veterans' Appeals. In its well as waiver of payment of loan decisions, the Board is bound by guaranty indebtedness (38 U.S.C. applicable statutes, the regulations of chapter 37. 36 U.S.C. 5302). the Department of Veterans Affairs and (19) Waiver of recovery of precedent opinions of the General overpayments (36 U.&.C. 5302). Counsel of th Department of Veterans (28) Forfeiture of rights, claims or Affairs. Examples of the issues over benefits for fraud, treason, or subversive which the Board has jurisdiction activities (38 U.S.C. 6102-6105). include, but are not limited to. the (211 Character of dischare (38 US.C. following: 5303 (1) Entitlement to. and benefits (22) Determinations as to duty status resulting from, service-connected (38 USC. 1W1).-(24J). disability or death (38 U.S.C. chapter (23) Determinations as to marital 11). status (38 U.&C. 10143). 103). (2) Dependency and indemnity (24) Determination of dependency compensation for service-coaucted status as parent or child (38 U.S.C death, indaling benefits in certain cases 101(4). (5)). of inservice or service-cmoreced deaths (25) Validity of claims and effective (38 UC. 1312) and certification and dates of benefits (38 U.S.C. chapter 51). entitlement to death gratuity (38 U.S.C. (26) Apportionment of benefits (38 1323). U.S.C. 5307). (31 Benefits for survivors of certain f27) Payment of benefits while a veterans rated totally disabled at time of veteran is hospitalized and questions death (38 U.S.C. 1316). regarding an estate of an incompetent (4) Entitlement to nonserviceinstitutionalized veteran (38 U.S.C. connected disability pension. service 5503). pension and death pension (36 USC. (28) Benefits for surviving spouses and chapter 15). children of deceased veterans under (5) Afl-Volunteer Force Educational Public Law 97-377, section 156 (38 CFR Assistance Program (38 US.C. chapter 3.812(d)). 30). (29) Eligibility for automobile and (6) Training and Rehabilitation for automobile adaptive equipment Veterans with Service-Connected assistance (38 U.S.C. chapter 39). Disabilities (36 U.S.C. chapter 31). (b) Appellatejursdictionof (7) Post-Vietnam Era Veterans' determinationsof the Veterans Health Educational Assistance [38 U.S.C. Administration.The Board's appellate chapter 32). jurisdiction extends to questions of (8) Veterans' Educational Assistance eligibility for hospitalization, outpatient (38 U.S.C. chapter 34). treatment, and nursing home and (9) Survivors' and Dependents' domiciliary care; for devices such as prostheses, canes, wheelchairs, back Educational Assistance (38 U.S.C. braces, orthopedic shoes, and similar chapter 35). (10) Veterans' Job Training (Pub. L appliances; and for other benefits administered by the Veterans Health 98-77. as amended. 38 CFR i.4600 et Administratmn. Medical determinations, seq.). such as determinations of the need for (11) Educational Assistance for and appropriateness of specific types of Members of the Selected Reserve (10 U.S.C. chapter lO6). medical care and treatment for an

individua ae at adjudicative matters and are beyond the Board's jurisdiction. Typical examples of these issues ar whetheir a particuia drug should be prescribed, whether a specific type of physiotherapy should be ordered, and similar judgmental treatment decisions with which an atteding physician may be faced. (c) Appeals as to jurisdiction.All claimants have the right to appeal a determination made by the agency of original jurisdiction that the Board does not have jurisdictional authority to review a particular issue. This includes questions relating to the timely filing and adequacy of the Notice of Disagreement and the Substantive Appeal. Subject to review by courts of competent jurisdiction, only the Board of Veterans' Appeals will make final decisions with respect to its jarisdiction. (Authority. 38 USiC. 511(a). 71N4) 20.102 Rule 102. Delegation of authority-Rules of Practice. (a) The authority exercised by the Chairman of the Board of Veterans' Appeals described in Rate 909(c) (I 20.Uo(c) 4 this part) MAY ALSO be exercised by the Vice Chairman of the Board.

(b)The authority exercised by the

Chairman 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 Vice

Chairman ofthe Board and by Deputy

Vice Chairmen of the Board. (c) The authority exercised by the Chairman of the Board of Veterans' Appeals described in Rale 2 ( 20.2 of this part) may also be exercised by the Vice Chairman of the Board. by Deputy Vice Chairmen of the Board; and, in conjunction with a proceeding or motion in connection therewith assigned to them by the Chairman, by Members of the Board who have been desiated as the Chief Member of a Section of the Board or as the Acting Chief Member of a Section of the Board and by a Member of the Board who is acting as the presiding Member of a hearing panel. (d) The authority exercised by the Chairman 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 this

part) may also be exercised by the Vice

Ckaimm of te Board and by Deputy

Vice Cheirmen of the Board. When, however, the matter arises in conaaction With an appeal or any proceedift insfituted before the Board. or any motion in connection therewith,

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Federal Register / Vol. 57, No. 22 / Monday, February 3, 1992 Statement of the Case and any prior Supplemental Statements of the Case. The Board will construe such arguments in a liberal manner for purposes of determining whether they raise issues on appeal, but the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination, or determinations, being appealed. The Board will not presume that an appellant agrees with any statement of fact contained in a Statement of the Case or a Supplemental Statement of the Case which is not specifically contested. Proper completion and filing of a Substantive Appeal are the last actions the appellant needs to take to perfect an appeal. (Authority: 38 U.S.C. 7105(d)(3)-(5))
(Approved by the Office of Management and Budget under control number 2900-0085] 20.203 Rule 203. Decision as to adequacy of the Substantive Appeal.

I Rules

and Regulations

assigned to a Section, or Sections, by the Chairman for a hearing and/or disposition, this authority shall be exercised by the Members of the Board Section, or Sections, involved.
(Authority: 38 U.S.C. 512(a), 7102, 7104) 20.103-20.199 [Reserved]

20.205-20.299 [Reserved]
Subpart D-Filing 20.300 Rule 300. Place of filing Notice of Disagreement and Substantive Appeal. The Notice of Disagreement and Substantive Appeal must be filed with the Department of Veterans Affairs office from which the claimant received notice of the determination being appealed unless notice has been received that the applicable Department of Veterans Affairs records have been transferred to another Department of Veterans Affairs office. In that case, the Notice of Disagreement or Substantive Appeal must be filed with the Department of Veterans Affairs office which has assumed jurisdiction over the applicable records. (Authority: 38 U.S.C. 7105 (b)(l), (d)(3)

Subpart C-Commencement and Perfection of Appeal 20.200 appeal. Rule 200. What constitutes an

An appeal consists of a timely filed Notice of Disagreement in writing and, after a Statement of the Case has been furnished, a timely filed Substantive Appeal.
(Authority: 38 U.S.C. 7105) 20.201 Rule 201. Notice of Disagreement

A written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result will constitute a Notice of Disagreement. While special wording is not required, the Notice of Disagreement must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review. If the agency of original jurisdiction gave notice that adjudicative determinations were made on several issues at the same time, the specific determinations with which the claimant disagrees must be identified. For example, if service connection was denied for two disabilities and the claimant wishes to appeal the denial of service connection with respect to only one of the disabilities, the Notice of Disagreement must make that clear.
(Authority: 38 U.S.C. 7105) 20.202 Rule 202. Substantive Appeal.

20.301 Rule 301. Who can file an appeal.

(a) Persons authorized. A Notice of Disagreement and/or a Substantive Appeal may be filed by a claimant personally, or by his or her representative if a proper Power of Attorney or declaration of representation, as applicable, is on record or accompanies such Notice of Disagreement or Substantive Appeal. (b) Claimantratedincompetent by Deportment of Veterans Affairs or under disabilityand unable to file. If an appeal is not filed by a person listed in paragraph (a) of this section, and the claimant is rated incompetent by the Department of Veterans Affairs or has a physical, mental, or legal disability which prevents the filing of an appeal on his or her own behalf, a Notice of Disagreement and a Substantive Appeal may be filed by a fiduciary appointed to manage the claimant's affairs by the Department of Veterans Affairs or a court, or by a person acting as next friend if the appointed fiduciary fails to take needed action or no fiduciary has been appointed. (c) Claimantunder disabilityand able to file. Notwithstanding the fact that a fiduciary may have been appointed for a claimant, an appeal filed by a claimant will be accepted.
(Authority: 38 U.S.C. 7105(b)(2))

A decision as to the adequacy of allegations of error of fact or law in a Substantive Appeal will be made by the Board of Veterans' Appeals. When the Board raises the issue of adequacy of the Substantive Appeal, the appellant and representative, if any, will be given notice of the issue and a period of 60 days following the date on which such notice is mailed to present written argument or to request a hearing to present oral argument on this question. The date of mailing of the notice will be presumed to be the same as the date of the letter of notification.
(Authority: 38 U.S.C. 7105(d)(3), 7108) 20.204 Rule 204. Withdrawal of Notice of Disagreement or Substantive Appeal.

(a) Notice of Disagreement.A Notice of Disagreement may be withdrawn in writing before a timely Substantive Appeal is filed.
(Authority: 38 U.S.C. 7105(d)(1))

A Substantive Appeal consists of a properly completed VA Form 1-9, "Appeal to Board of Veterans' Appeals," or cor espondence containing the necessary information. If the Statement of the Case and any prior Supplemental Statements of the Case addressed several issues, the Substantive Appeal must either indicate that the appeal is being perfected as to all of those issues or must specifically identify the issues appealed. The Substantive Appeal should set out specific arguments relating to errors of fact or law made by the agency of original jurisdiction in reaching the determination, or determinations, being appealed. To the extent feasible, the argument should be related to specific items in the

(b) Substantive Appeal. A Substantive Appeal may be withdrawn in writing at any time before the Board of Veterans' Appeals promulgates a decision.
(Authority: 38 U.S.C. 7105(d)(3))

(c) Who May Withdraw. Withdrawal may be by the appellant or by his or her authorized representative, except that a representative may not withdraw either a Notice of Disagreement or Substantive Appeal filed by the appellant personally without the express written consent of the appellant. The agency of original jurisdiction may not withdraw a Notice of Disagreement or a Substantive Appeal after filing of either or both.
(Authority: 38 U.S.C. 7105(b)(2))

20.302 Rule 302. Time limit for filing Notice of Disagreement, Substantive Appeal, and response to Supplemental Statement of the Case. (a) Notice of Disagreement.Except in the case of simultaneously contested claims, a claimant, or his or her representative, must file a Notice of Disagreement with a determination by the agency of original jurisdiction within

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Federal Register / Vol. 57, No. 22 / Monday, February 3. 1992 / Rules and Regulations one year from the date that that agency mails notice of the determination to him or her. Otherwise, that determination will become final. The date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. (Authority: 38 U.S.C. 7105(b)(1)) (b) Substantive Appeal. Except in the case of simultaneously contested claims, a Substantive Appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the Statement of the Case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. The date of mailing of the Statement of the Case will be presumed to be the same as the date of the Statement of the Case and the date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed.
(Authority: 38 U.S.C. 7105 (b)(1), (d)(3))

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be granted for good cause. A request for such an extension must be in writing and must be made prior to expiration of the time limit for filing the Substantive Appeal or the response to the Supplemental Statement of the Case. The request for extension must be filed with the Department of Veterans Affairs office from which the claimant received notice of the determination being appealed, unless notice has been received that the applicable records have been transferred to another Department of Veterans Affairs office. A denial of a request for extension may be appealed to the Board. (Authority: 38 U.S.C. 7105(d)(3)) 20.304 Rule 304. Ffling additional evidence does not extend time limit for appeal. The filing of additional evidence after receipt of notice of an adverse determination does not extend the time limit for initiating or completing an appeal from that determination.
(Authority: 38 U.S.C. 7105)

Birthday-Third Monday in February; Memorial Day-Last Monday in May; Independence Day-July 4; Labor DayFirst Monday in September, Columbus Day-Second Monday in October; Veterans Day-November 11; Thanksg!ving Day-Fourth Thursday in November, and Christmas DayDecember 25. When a holiday occurs on a Saturday, the Friday immediately before is the legal public holiday. When a holiday occurs on a Sunday, the Monday immediately after is the legal public holiday. (Authority: 5 U.S.C. 6103)

20.307-20.399 [Reserved]
Subpart E-Administrative Appeals 20.400 Rule 400. Action by claimant or representative on notification of administrative appeal. When an official of the Department of Veterans Affairs enters an administrative appeal, the claimant and his or her representative, if any, are notified and given a period of 60 days from the date of mailing of the letter of notification to join in the administrative appeal. The date of mailing of the letter of notification will be presumed to be the same as the date of the letter of notification. If the claimant, or the representative acting on his or her behalf, elects to join in the administrative appeal, it becomes a
"merged appeal" and the rules

(c) Response to Supplemental Statement of the Case. Where a Supplemental Statement of the Case is furnished, a period of 60 days from the date of mailing of the Supplemental Statement of the Case will be allowed for response. The date of mailing of the Supplemental Statement of the Case will be presumed to be the same as the date of the Supplemental Statement of the Case for purposes of determining whether a response has been timely filed. Provided a Substantive Appeal has been timely filed in accordance with paragraph (b) of this section, the response to a Supplemental Statement of the Case is optional and is not required for the perfection of an appeal, unless the Supplemental Statement of the Case covers issues that were not included In the original Statement of the Case. If a Supplemental Statement of the Case covers issues that were not included in the original Statement of the Case, a Substantive Appeal mustbe filed with respect to those issues within 60 days in order to perfect an appeal with respect to the additional issues. (Authority: 38 U.S.C. 7105(d)(3))

20.305 Rule 305. Computation of time limit for filing. (a) Acceptance of postmqrk date. When these Rules require that any written document be filed within a specified period of time, a response postmarked prior to expiration of the applicable time limit will be accepted as having been timely filed. In the event that the postmark is not of record, the postmark date will be presumed to be five days prior to the date of receipt of the document by the Department of Veterans Affairs. In calculating this 5day period, Saturdays, Sundays and legal holidays will be excluded. (b) Computationof time limit. In computing the time limit for filing a written document, the first day of the specified period will be excluded and the last day included. Where the time limit would expire on a Saturday, Sunday, or legal holiday, the next succeeding workday will be included in the computation.
(Authority: 38 U.S.C. 7105)

governing an appeal initiated by a claimant are for application. The presentation of evidence or argument by the claimant or his or her representative in response to notification of the right to join in the administrative appeal will be construed as an election to join in the administrative appeal. If the claimant does not authorize the merger, he or she must hold such evidence or argument in abeyance until resolution of the administrative appeal.
(Authority: 38 U.S.C. 7106)

20.303 Rule 303. Extension of time for

filing Substantive Appeal and response to Supplemental Statement of the Case. An extension of the 60-day period for filing a Substantive Appeal, or the 60day period for responding to a Supplemental Statement of the Case when such a response is required, may

20.306 Rule 306. Legal holidays. For the purpose of Rule 305 ( 20.305 of this part), the legal holidays, in addition to any other day appointed as a holiday by the President or the Congress of the United States, are as follows: New Year's Day-January 1; Inauguration Day-January 20 of every fourth year or, if the 20th falls on a Sunday, the next succeeding day selected for public observance of the inauguration; Birthday of Martin Luther King, Jr.-Third Monday in January; Washington's

20.401 Rule 401. Effect of decision on administrative or merged appeal on claimant's appellate rights. (a) Mergedappeal. If the administrative appeal is merged, the appellate decision on the merged appeal will constitute final disposition of the claimant's appellate rights. (b) Appeal not merged. If the claimant does not authorize merger, normal appellate rights on the same issue are preserved, and a decision in a separate appeal perfected by the claimant will be entered by a Section of the Board which does not include Members who made the decision on the administrative appeal. The period of time from the date

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Vol. 57, No. 22

Monday, F~Lruary 3. 1992

Rules and Regulations

[Reserved)

of notification to the claimant of the

administrative appeal to the date of the Board's decision on the administrative appeal is not chargeable to the claimant for purposes of determining the time limit for perfecting his or her separate appeal. (Authority: 38 U.S.C. 7101)

20.402-20.499 [Reserved]
Subpart F-Smutaneously Contested Claims 20.500 Rule 500. Who can file an appeal In simultaneously contested claims. In a simultaneously contested claim, any claimant or representative of a claimant may file a Notice of Disagreement or Substantive Appeal within 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 filing Notice of Disagrement, Substantive Appeal, and response to Supplemental Statement of the Case In samultaneously contested claims. (a) Notice of Disagreement.In simultaneously contested claims, the Notice of Disagreement from the person adversely affected must be filed within 60 days from the date of mailing of the notification of the determination to him or her, otherwise, that determination will become final. The date of mailing of the letter of notification will be presumed to be the same as the date of that letter for purposes of determining whether a Notice of Disagreement has been timely filed. (Authority: 38 U.S.C. 7105A(a)) (b) Substantive Appeal. In the case of simultaneously contested claims, a Substantive Appeal must be filed within 30 days from the date of mailing of the Statement of the Case. The date of mailing of the Statement of the Case will be presumed to be the same as the date of the Statement of the Case for purposes of determining whether an appeal has been timely filed. (Authority: 38 U.S.C. 7105A(b)) (c) SupplementalStatement of the Case. Where a Supplemental Statement of the Case is furnished by the agency of original jurisdiction in a simultaneously contested claim, a period of 30 days from the date of mailing of the Supplemental Statement of the Case will be allowed for response, but the receipt of a Supplemental Statement of the Case will not extend the time allowed for filing a Substantive Appeal as set forth in paragraph (b) of this section. The date of mailing of the Supplemental Statement of the Case will be presumed

to be the same as the date of the Supplemental Statement of the Case for purposes of determining whether a response has been timely filed. Provided a Substantive Appeal has been timely filed in accordance with paragraph (b) of this section, the response to a Supplemental Statement of the Case is optional and is not required for the perfection of an appeal, unless the Supplemental Statement of the Case covers issues that were not included in the original Statement of the Case. If a Supplemental Statement of the Case covers issues that were not included in the original Statement of the Case, a Substantive Appeal must be filed with respect to those issues within 30 days of the date of mailing of the Supplemental Statement of the Case in order to perfect an appeal with respect to the additional issues.
(Authority: 38 U.S.C. 7105(dH3), 7105A(b))

20.505-20.599

Subpart G-Representation Cros-Referemnc: In cases involving access to medical records relating to drug abuse, alcoholism, alcohol abuse, sickle cell anemia, or Infection with the human Immunodeficiency 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 an appeal by a recognized organization, attorney, agent, or other authorized person. (Authority: 38 U.S.C. 5901-5905, 7105(a)) 20.601 Rule 601. Only one relpesentalve

recognze&
A specific claim may be prosecuted at any one time by only one recognized organization, attorney, agent or other person properly designated to represent the appellant.
(Authority: 30 U.S.C. 7105(b)(2))

20.502 Rule 502. Time limit for response to notice of appeal by another contesting party Ina simultaneously contested claim. Notice of an appeal by another contesting party in a simultaneously contested claim is given by sending a copy of that party's Substantive Appeal to all other contesting parties. A period of 30 days from the date of mailing of the copy of the Substantive Appeal is allowed for filing a brief or argument in answer. The date of mailing of the copy will be presumed to be the same as the date of the letter which accompanies the copy.
(Authority: 38 U.S.C. 7105A(b)) 20.503 Rule 503. Extension of time for filing a Substantive Appeal In simultaneously contested claims. An extension of the 30-day period to file a Substantive Appeal in simultaneously contested claims may be granted if good cause is shown. In granting an extension, consideration

20.602 Rule 601 Representation by recognized organizations. In order to designate a recognized organization as his or her representative, an appellant must execute a VA Form 21-2Z "Appointment of Veterans Service Organization as Claimant's Representative." This form gives the organization power of attorney to represent the appellant. The designation will be effective when it is received by the agency of original jurisdiction or, if the appellate record has been certified to the Board for review, by the Board of Veterans' Appeals. A properly filed designation made prior to appeal will continue to be honored, unless it has been revoked by the appellant or unless the representative has properly withdrawn. (Authority: 38 U.S.C. 7105(b)(2)) 20.603 Rule 603. Representation by attorney.4w. (a) Designation.An attorney-at-law may be designated as an appellant's representative through a properly executed VA Form 2-22a, "Appointment of Attorney or Agent as Claimant's Representative." This form gives the attorney power of attorney to represent the appellant. In lieu thereof, an attorney may state in writing on his or her letterhead that he or she is authorized to represent the appellant in order to have access to information in the appellant's file pertinent to the particular claim presented. For an attorney to have complete access to all information in an individual's records, the attorney must provide a signed

will be given to the interests of the other parties involved. A request for such an extension must be in writing and must be made prior to expiration of the time limit for filing the Substantive Appeal.
(Authority: 38 U.S.C. 7105A(b))

120.504 Rule 504. Notices sent to last addresses of record Insimultaneously contested claims.
Notices in simultaneously contested

claims will be forwarded to the last address of record of the parties concerned and such action will constitute sufficient evidence of notice.
(Authority: 38 U.S.C. 7105A(b)}

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consent must include the name of the veteran; the name of the appellant if other than the veteran (e.g., a veteran's survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual's behalf); the applicable Department of Veterans Affairs file number, the name of the attorney of record; the consent of the appellant for the use of the services of the associated or affiliated attorney and for that individual to have access to applicable Department of Veterans Affairs records; and the name of the associated or affiliated attorney who will be assisting in the case. The consent must be filed with the agency of original jurisdiction or, if the appellate record has been certified to the Board for review, with the Board of Veterans' Appeals. The presiding Member at a hearing on appeal may require that not more than one attorney participate in the examination of any one witness or impose other reasonable limitations to ensure orderly conduct of the hearing. (Authority: 38 U.S.C. 5901, 5904)

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consent from the appellant or the appellant's guardian. Such consent shall be equivalent to an executed power of attorney. The designation must be of an individual attorney, rather than a firm or partnership. An appellant may limit an attorney's right to act as his or her representative in an appeal to representation with respect to a specific claim for one or more specific benefits by noting the restriction in the written designation. Unless specifically noted to the contrary, however, designations of an attorney as a representative will extend to all matters with respect to claims for benefits under laws administered by the Department of Veterans Affairs. Designations are effective when they are received by the agency of original jurisdiction or, if the appellate record has been certified to the Board for review, by the Board of Veterans' Appeals. A properly filed designation made prior to appeal will continue to be honored, unless it has been revoked or unless the representative has properly withdrawn. Legal interns, law students, and paralegals may not be independently accredited to represent appellants under this Rule. (b) Attorneys employed by recognized organization.A recognized organization may employ an attorney-at-law to represent an appellant. If the attorney so employed is not an accredited representative of the recognized organization, the signed consent of the appellant for the substitution of representatives must be obtained and submitted to the agency of original jurisdiction or, if the appellate record has been certified to the Board for review, to the Board of Veterans' Appeals. When the signed consent is received by the agency of original jurisdiction or the Board, as applicable, the attorney will be recognized as the appellant's representative in lieu of the organization. (c) Participation associatedor of affiliated attorneys.With the specific written consent of the appellant, an attorney associated or affiliated with the appellant's attorney of record, including an attorney employed by the same legal services office as the attorney of record, may assist in representation of the appellant and may have access to the appellant's Department of Veterans Affairs records to the same extent as the attorney of record. Unless revoked by the appellant, such consent will remain effective in the event the original attorney of record is replaced by another attorney who is a member of the same law firm or an attorney employed by the same legal services office. The

20.604 Rule 604. Representation by

agents. (a) Designation.The designation of an agent will be by a duly executed power of attorney, VA Form 2-22a, "Appointment of Attorney or Agent as Claimant's Representative," or its equivalent. The designation must be of an individual, rather than a firm or partnership. The designation will be effective when it is received by the agency of original jurisdiction or, if the appellate record has been certified to the Board for review, by the Board of Veterans' Appeals. A properly filed designation made prior to appeal will continue to be honored, unless it has been revoked or unless the representative has properly withdrawn. (b) Admission to practice.The provisions of 38 U.S.C. 5904 and of 14.629(b) of this chapter are applicable to the admission of agents to practice before the Department of Veterans Affairs. Authority for making determinations concerning admission to practice rests with the General Counsel of the Department of Veterans Affairs, and any questions concerning admissions to practice should be addressed to: Office of the General Counsel (022A), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420.
(Authority: 38 U.S.C. 5904)

20.605 Rule 605. Other persons as

representatlve. (a) Scope of rule. This section applies to representation other than by a

recognized organization, an agent admitted to practice before the Department of Veterans Affairs, or an attorney-at-law. (b) Who may act as representative. Any competent person may be recognized as a representative for a particular claim, unless that person has been barred from practice before the Department of Veterans Affairs. (c) Designation.The designation of an individual to act as an appellant's representative may be made by executing a VA Form 2-22a, "Appointment of Attorney or Agent as Claimant's Representative." This form gives the individual power of attorney to represent the appellant in all matters pertaining to the presentation and prosecution of claims for any and all benefit under laws administered by the Department of Veterans Affairs. In lieu of using the form, the designation may be by a written document signed by both the appellant and the individual representative, which may be in the form of a letter, which authorizes a named individual to act as the appellant's representative only with respect to a specific claim involving one or more specific benefits. The document must include the name of the veteran; the name of the appellant if other than the veteran (e.g., a veteran's survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual's behalf); the applicable Department of Veterans Affairs file number, the appellant's consent for the individual representative to have access to his or her Department of Veterans Affairs records; the name of the individual representative; a description of the specific claim for benefits to which the designation of representation applies; and a certification that no compensation will be charged or paid for the individual representative's services. The designation, in either form, must be filed with the agency of original jurisdiction or, if the appellate record has been certified to the Board for review, with the Board of Veterans' Appeals. The designation will be effective when it is received by the agency of original jurisdiction or, if the appellate record has been certified to the Board for review, by the Board of Veterans' Appeals. A properly filed designation made prior to appeal will continue to be honored, unless it has been revoked or unless the representative has properly withdrawn. (d) Representationof more than one appellant.An individual recognized as an appellant's representative under this Rule may represent only one appellant. If an individual has been recognized as

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Federal Register / Vol. 57, No. 22 / Monday, February 3, 1992 / Rules and Regulations effective when notice of the revocation is received by the agency of original jurisdiction or the Board, as applicable. An appropriate designation of a new representative will automatically revoke any prior designation of representation. If an appellant has limited a designation of representation by an attorney-at-law to a specific claim under the provisions of Rule 603, paragraph (a) ( 20.603(a) of this part), or has limited a designation of representation by an individual to a specific claim under the provisions of Rule 605, paragraph (c) ( 20.605(c) of this part), such specific authority constitutes a revocation of an existing representative's authority to act only with respect to, and during the pendency of, that specific claim. Following the final determination of that claim, the existing representative's authority to act will be automatically restored in full, unless otherwise revoked.
(Authority: 38 U.S.C. 5901-5904) 20.608 Rule 608. Withdrawal of services by a representative.

a representative for one appellant and wishes to represent another appellant, he or she must obtain permission to do so from the Office of the General Counsel as provided in J 14.630 of this chapter. (Authority: 38 U.S C. 5903)

Hearing Section and submit written authorization from the attoraey naming the individual who will be participating in the hearing. In the case of proceedings before traveling Sections of the Board in the field, the attorney-atlaw must inform the office of the Department of Veterans Affairs official who gave notice of the Travel Board 20.606 Rule 606. Legal Interns, law students and paralegals. hearing date and time not more than 10 days prior to the scheduled hearing date (a) When services of legal interns, may be that the services of a legal intern, law law studcnts ond paralegals student, or paralegal will be used at the used. Not more than two legal interns, law students or paralegals may assist an hearing. At the same time, a prehearing conference with the presiding Member attorney-at-law in the presentation of of the traveling Section must be evidence and argument in appeals requested. At the conference, the written before the Board of Veterans' Appeals consent of the appellant for the use of in Washington, DC. or before traveling the services of such an individual Sections of the Board at Department of required by paragraph (b) must be Veterans Aftairs field facilities. presented and agreement reached as to (b) Consent of appellant.If it is the individual's role in the hearing. Legal contemplated that a legal intern, law interns, law students or paralegals may student, or paralegal will assist in the not present oral arguments at bearings appeal, written consent must be obtained from the appellant. The written either in the field or in Washington, DC, unless the recognized attorney-at-law is consent must include the name of the present. Not more than two such veteran; the name of the appellant if individuals may make presentations at a other than the veteran (e.g., a veteran's hearing. The presiding Member at a survivor, a guardian, or a fiduciary appointed to receive VA benefits on an hearing on appeal may require that not more than one such individual individual's behalij: the applicable participate in the examination of any Department of Veterans Affairs file one witness or impose other reasonable number, the name of the attorney-atlimitations to ensure orderly conduct of law;, the consent of the appellant for the the hearing. use of the services of legal interns, law (e) Withdrawalof permission for legal students, or paralegals and for such interns,law students, and paralegalsto individuals to have access to applicable Department of Veterans Affairs records; assistin the presentation of an appeal. When properly designated, the attorneyand the names of the legal interns, law at-law is the recognized representative students, or paralegals who will be of the appellant and is responsible for assisting in the case. In the case of appeals before the Board in Washington, ensuring that an appeal is properly presented. Legal interns, law students, DC, the signed consent must be and paralegals are permitted to assist in submitted to: Chief, Hearing Section the presentation of an appeal as a (014B), Board of Veterans' Appeals, 810 courtesy to the attorney-at-law. Vermont Avenue, NW., Washington, DC Permission for a legal intern, law 20420. In the case of appeals before traveliig Sections of the Board, the student, or paralegal to prepare and present cases before the Board may be consent must be presented to the withdrawn by the Chairman at any time presiding Member of the traveling Section as noted in paragraph (d). if a lack of competence, unprofessional conduct, or interference with the Unless revoked by the appellant, such appellate process is demonstrated by consent will remain effective in the that individual. event the original attorney of record is
replaced by another attorney who is a member of the same law firm or another attorney employed by the same legal services office. (c) Supervision. Legal interns, law students and paralegals must be under the direct supervision of a recognized attorney-at-law in order to prepare and present cases before the Board of Veterans' Appeals. (d) Hearings.Legal interns, law students and paralegals who desire to participate at a hearing before the Board in Washington, DC. must make advance arrangements with the Chief of the (Authority: 38 U.S.C. 5904, 7105fh3(2}} 20.607 Rule 607. Revocation of a representativ.'$ authority to act.

Subject to the provisions of 20.1304 of this part, an appellant may revoke a representative's authority to act on his or her behalf at any time, irrespective of whether another representative is concurrently designated. Written notice of the revocation must be given to the agency of original jurisdiction or, if the appellate record has been certified to the Board for review, to the Board of Veterans' Appeals. The revocation is

(a) Withdrawalof services priorto certificationof an appeal.A representative may withdraw services as representative in an appeal at any time prior to certification of the appeal to the Board of Veterans' Appeals by the agency of original jurisdiction. The representative must give written notice of such withdrawal to the appellant and to the agency of original jurisdiction. The withdrawal is effective when notice of the withdrawal is received by the agency of original jurisdiction. (b) Withdrawalof services after certificationof an appeal--(1) Applicability. The restrictions on a representative's right to withdraw contained in this paragraph apply only to those cases in which the representative has previously agreed to act as representative in an appeal. In addition to express agreement, orally or in writing, such agreement shall be presumed if the representative makes an appearance in the case by acting on an appellant's behalf before the Board in any way after the appellant has designated the representative as such as provided in 20.602 through 20.605 of this part. The preceding sentence notwithstanding, an appearance in an appeal solely to notify the Board that a designation of representation has not been accepted will not be presumed to constitute such consent. (2) Procedures.After the agency of original jurisdiction has certified an appeal to the Board of Veterans' Appeals, a representative may not withdraw services as representative in the appeal unless good cause is shown

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Federal Register / Vol. 57, No. 22 / Monday, February 3, 1992 on motion. Good cause for such (b) Who may chargefees for representation.Only agents and attorneys-at-law may receive fees from claimants or appellants for their services. Recognized organizations (including their accredited representatives when acting as such) and individuals recognized pursuant to Rule 005 [ 20.605 of this part) are not permitted to receive fees. An attorneyat-law or agent who may also be an accredited representative of a recognized organization may not receive such fees unless he or she has been properly designated as representative in accordance with Rule 603(a) or Rule 604(a) ( 20.603(a) or 20.604(a) of this part) in his or her individual capacity. (c) Circumstancesunder which fees may be charged.Except as noted in paragraph (d) of this section, attorneysat-law and agents may charge claimants or appellants for their services only if all of the following conditions have been met: (1) A final decision has been promulgated by the Board of Veterans' Appeals with respect to the issue, or issues, involved; (2) The Notice of Disagreement which preceded the Board of Veterans' Appeals decision with respect to the issue, or issues, involved was received by the agency of original jurisdiction on or after November 18, 1988; and (3) The attorney-at-law or agent was retained not later than one year following the date that the decision by the Board of Veterans' Appeals with respect to the issue, or issues, involved was promulgated. (This condition will be considered to have been met with respect to all successor attorneys-at-law or agents acting in the continuous prosecution of the same matter if a predecessor was retained within the required time period.) (d) Payment of fee by disinterested thirdparty. An attorney-at-law or agent may receive a fee or salary from an organization, governmental entity, or other disinterested third party for representation of a claimant or 20.609 Rule 609. Payment of representative's fees In proceedings before appellant even though the conditions set forth in paragraph (c) of this section Department of Veterms Affairs field have not been met. personnel and before the Board of Veterns' Appeas. (e) Fees permitted.Fees permitted under paragraph (c) for services of an (a) Applicability of rule. The attorney-at-law or agent admitted to provisions of this section apply to the practice before the Department of services of representatives with respect Veterans Affairs must be reasonable. to benefits under laws administered by They may be based on a fixed fee, the Department of Veterans Affairs in hourly rate, a percentage of benefits all proceedings before Department of recovered, or a combination of such Veterans Affairs field personnel or bases. Factors considered in before the Board of Veterans' Appeals determining whether fees are regardless of whether an appeal has reasonable include: been initiated.

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purposes is the extended illness or incapacitation of an agent admitted to practice before the Department of Veterans Affairs, an attorney-at-law, or other individual representative: failure of the appellant to cooperate with proper preparation and presentation of the appea; or other factors which make the continuation of representation impossible, impractical, or unethical. Such motions must be in writing and must include the name of the veteran. the name of the claimant or appellant if other than the veteran (e.g., a veteran's survivor, a guardian. or a fiduciary appointed to receive VA benefits on an individual's behalf), the applicable Department of Veterans Affairs file number, and the reason why withdrawal should be permitted. Such motions should not contain information which would violate privileged communications or which would otherwise be unethical to reveal. Such motions must be filed at the following address: Office of Counsel to the Chairman (01C), Board of Veterans' Appeals, 810 Vermont Avenue, NW.. Washington, DC 20420. The representative must mail a copy of the motion to the appellant, with a return receipt requested. The receipt, which must bear the signature of the appellant. must then be filed with the Board at the same address as proof of service of the motion. The appellant may file a response to the motion with the Board at the same address not later than 30 days following receipt of the copy of the motion. The appellant must mail a copy of any such response to the representative, with a return receipt requested. The receipt, which must bear the signature of the representative or an employee of the representative, must then be filed with the Board at the same address as proof of service of the response. The ruling on the motion will be made by the Chairman. (Authority: 38 U.S.C. 5901--904. 7105(a)) (Approved by the Office of Management and Budget under control number 2900-0085)

(1) The extent and type of services the representative performed; (2) The complexity of the case; (3) The level of skill and competence required of the representative in giving the services; (4) The amount of time the representative spent on the case; (5) The results the representative achieved, including the amount of any benefits recovered, (6) The level of review to which the claim was taken and the level of the review at which the representative was retained; (7) Rates charged by other representatives for similar services; and (8) Whether, and to what extent. the payment of fees is contingent upon the results achieved. (f) Presumptionof reasonableness. Fees which total no more than 20 percent of any past-due benefits awarded, as defined in paragraph (h)(3) of this section, will be presumed to be reasonable. (g) Fee agreements. All agreements for the payment of fees for services of attorneys-at-law and agents must be in writing and signed by both the claimant or appellant and the attorney-at-law or agent. The agreement must include the name of the veteran, the name of the claimant or appellant if other than the veteran (e.g. a veteran's survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual's behalf), the applicable Department of Veterans Affairs file number, and the specific terms under which the amount to be paid for the services of the attorney-at-law or agent will be determined. A copy of the agreement must be filed with the Board of Veterans' Appeals within 30 days of its execution by mailing the copy to the following address: Office of Counsel to the Chairman (01C), Board of Veterans' Appeals, 810 Vermont Avenue NW.. Washington, DC 20420. (Also see paragraph (h)(4) for information concerning additional filing requirements when fees are to be paid by the Department of Veterans Affairs from past-due benefits.) (h) Payment of fees by Departmentof Veterans Affairs directly to an attorneyat-lawfrom post-due benefits. (1) Subject to the requirements of the other paragraphs of this section, including paragraphs (c) and (e). The daimant or appellant and an attorney-at-law may enter into a fee agreement providing that payment for the services of the attorneyat-law will be made directly to the attomey-at-4aw by the Department of Veterans Affairs outof any past-due benefits awarded as a result of a

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Federal Register / Vol. 57, No. 22 / Monday, February 3, 1992 / Rules and Regulations benefits based upon the increase granted on appeal, to the extent that the increased amount of disability is found to have existed between the initial effective date of the award following the grant of service connection and the date of the rating action implementing the appellate decision granting the increase. (ii) Unless otherwise provided in the fee agreement between the claimant or appellant and the attorney-at-law, the attorney-at-law's fees will be determined on the basis of the total amount of the past-due benefits even though a portion of those benefits may have been apportioned to the claimant's or appellant's dependents. (iii) If an award is made as the result of favorable action with respect to several issues, the past-due benefits will be calculated only on the basis of that portion of the award which results from action taken on issues concerning which the criteria in paragraph (c) of this section have been met. (4) In addition to filing a copy of the fee agreement with the Board of Veterans' Appeals as required by paragraph (g) of this section, the attorney-at-law must notify the agency of original jurisdiction within 30 days of the date of execution of the agreement of the existence of an agreement providing for the direct payment of fees out of any benefits subsequently determined to be past due and provide that agency with a copy of the fee agreement. Payment of the attorney's share of any past due benefits will be made at the same time that any such benefits are paid to the claimant or appellant. (i) Motion for review of fee agreement.The Board of Veterans' Appeals may review a fee agreement between a claimant or appellant and an attorney-at-law or agent upon its own motion or upon the motion of any party to the agreement and may order a reduction in the fee called for in the agreement if it finds that the fee is excessive or unreasonable in light of the standards set forth in paragraph (e) of this section. Such motions must be in writing and must include the name of the veteran, the name of the claimant or appellant if other than the veteran (e.g., a veteran's survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual's behalf), and the applicable Department of Veterans Affairs file number. Such motions must set forth the reason, or reasons, why the fee called for in the agreement is excessive or unreasonable. Such motions (other than motions by the Board) must be filed at the following address: Office of Counsel to the Chairman (01C), Board of Veterans'
Appeals, 810 Vermont Avenue, NA, Washington, DC 20420. They should be accompanied by all such evidence as the moving party desires to submit. The moving party must mail a copy of the motion and accompanying evidence to all other parties to the agreement, with return receipts requested. The receipts, which must bear the signatures of the other parties, must then be filed with the Board at the same address as proof of service of the motion. The other parties may file a response to the motion, with any accompanying evidence, with the Board at the same address not later than 30 days following the date of receipt of the copy of the motion. A copy of any such response and any accompanying evidence must be mailed to the moving party, with a return receipt requested. The receipt, which must bear the signature of the moving party, must then be filed with the Board at the same address as proof of service of the response. The ruling on the motion will be by the Chairman. Once there has been a ruling on the motion, an order shall issue which will constitute the final decision of the Board with respect to the motion. If a reduction in the fee is ordered, the attorney or agent must credit the account of the claimant or appellant with the amount of the reduction and refund any excess payment on account to the claimant or appellant not later than the expiration of the time within which the ruling may be appealed to the Court of Veterans Appeals. Failure to do so may result in proceedings under 14.633 of this chapter to terminate the attorney's or agent's right to practice before the Department of Veterans Affairs and the Board of Veterans' Appeals and/or prosecution under the provisions of 38 U.S.C. 5905. (Authority: 38 U.S.C. 5902, 5904, 5905) (Approved by the Office of Management and Budget under control number 2900-0085) 20.610 Rule 610. Payment of representative's expenses Inproceedings before Department of Veterans Affairs field personnel and before the Board of Veterans' Appeals. (a) Applicability of rule. The provisions of this section apply to the services of representatives with respect to benefits under laws administered by the Department of Veterans Affairs in all proceedings before Department of Veterans Affairs field personnel or before the Board of Veterans' Appeals regardless of whether an appeal has been initiated. (b) General. Any representative may be reimbursed for expenses incurred on behalf of a veteran or a veteran's

successful appeal to the Board of Veterans' Appeals or an appellate court or as a result of a reopened claim before the Department following a prior denial of such benefits by the Board of Veterans' Appeals or an appellate court. Such an agreement will be honored by the Department only if the following conditions are met: (i) The total fee payable (excluding expenses) does not exceed 20 percent of the total amount of the past-due benefits awarded, (ii) The amount of the fee is contingent on whether or not the claim is resolved in a manner favorable to the claimant or appellant, and (iii) The award of past-due benefits results in a cash payment to a claimant or an appellant from which the fee may be deducted. (An award of past-due benefits will not always result in a cash payment to a claimant or an appellant. For example, no cash payment will be made to military retirees unless there is a corresponding waiver of retirement pay. (See 38 U.S.C. 5304(a) and 3.750 et seq. of this chapter.)) (2) For purposes of this paragraph, a claim will be considered to have been resolved in a manner favorable to the claimant or appellant if all or any part of the relief sought is granted. (3) For purposes of this paragraph, "past-due benefits" means a nonrecurring payment resulting from a benefit, or benefits, granted on appeal or awarded on the basis of a claim reopened after a denial by the Board of Veterans' Appeals or the lump sum payment which represents the total amount of recurring cash payments which accrued between the effective date of the award, as determined by applicable laws and regulations, and the date of the grant of the benefit by the agency of original jurisdiction, the Board of Veterans' Appeals, or an appellate court. (i) When the benefit granted on appeal, or as the result of the reopened claim, is service connection for a disability, the "past-due benefits" will be based on the initial disability rating assigned by the agency of original jurisdiction following the award of service connection. The sum will equal the payments accruing from the effective date of the award to the date of the initial disability rating decision. If an increased evaluation is subsequently granted as the result of an appeal of the disability evaluation initially assigned by the agency of original jurisdiction, and if the attorney-at-law represents the claimant or appellant in that phase of the claim, the attorney-at-law will be paid a supplemental payment at the time that the appellant is paid retroactive

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Federal Register / Vol. 57, No. 22 / Monday, February 3, 1992 dependents or survivors in the prosecution of a claim for benefits pending before the Department of Veterans Affairs. Whether such a representative will be reimbursed for expenses and the method of such reimbursement is a matter to be determined by the representative and the claimant or appellant. Expenses are not payable directly to the representative by the Department of Veterans Affairs out of benefits determined to be due to a claimant or appellant. Unless required in conjunction with a motion for the review of expenses filed in accordance with paragraph (d) of this section, agreements for the reimbursement of expenses need not be filed with the Department of Veterans Affairs or the Board of Veterans' Appeals. (c) Nature of expenses subject to reimbursement."Expenses" include nonrecurring expenses incurred directly in the prosecution of a claim for benefits upon behalf of a claimant or appellant. Examples of such expenses include expenses for travel specifically to attend a hearing with respect to a particular claim, the cost of copies of medical records or other documents obtained from an outside source, the cost of obtaining the services of an expert witness or an expert opinion, etc. "Expenses" do not include normal overhead costs of the representative such as office rent, utilities, the cost of obtaining or operating office equipment or a legal library, salaries of the representative and his or her support staff, the cost of office supplies, etc. (d) Expense charges permittedmotion for reviewof expenses. Reimbursement for the expenses of a representative may be obtained only if the expenses are reasonable. The Board of Veterans' Appeals may review expenses charged by a representative upon the motion of the claimant or appellant and may order a reduction in the expenses charged if it finds that they are excessive or unreasonable. Such motions must be in writing. They 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), and the applicable Department of Veterans Affairs file number. They must specifically identify which expenses charged are felt to be unreasonable and the reason, or reasons, why the amount of the expenses is felt to be excessive or unreasonable. Such motions must be filed at the following address: Office of Counsel to the Chairman (01C), Board of
Veterans' Appeals, 810 Vermont Avenue NW.. Washington, DC 20420. They should be accompanied by all such evidence as the moving party desires to submit. The appellant or claimant, as applicable, must mail a copy of the motion and any accompanying evidence to the representative, with a return receipt requested. The receipt, which must bear the signature of the representative or an employee of the representative, must then be filed with the Board at the same address as proof of service of the motion. The representative may file a response to the motion, with any accompanying evidence, with the Board at the same address not later than 30 days following the date of receipt of the copy of the motion. The representative must mail a copy of any such response and any accompanying evidence to the appellant, with a return receipt requested. The receipt, which must bear the signature of the alpellant, must then be filed with the Board at the same address as proof of service of the response. The ruling on the motion will be by the Chairman. Factors considered in determining whether expenses are excessive or unreasonable include the complexity of the case, the potential extent of benefits recoverable, whether travel expenses are in keeping with expenses normally incurred by other representatives, etc. Once there has been a ruling on the motion, an order shall issue which will constitute the final decision of the Board with respect to the motion. (Authority: 38 U.S.C. 5904) (Approved by the Office of Management and Budget under control number 2900-0085)

1 Rules

and Regulathms

I [III I

effective when received by the agency of original jurisdiction or, if the case has been certified to the Board for appellate review, 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, or an appellant's representative acting on his or her behalf, expresses a desire to appear in person. (b) Purpose of hearing.The purpose of a hearing is to receive argument and testimony relevant and material to the appellate issue. it is contemplated that the appellant and witnesses, if any, will be present. A personal hearing will not normally be scheduled solely for the purpose of receiving argument by a representative. Such argument should be submitted in the form of a written brief. Oral argument may also be submitted on audio cassette for transcription for the record in accordance with paragraph (d) of this section. Requests for appearances by representatives alone to personally present argument to Members of the Board may be granted if good cause is shown. Whether good cause has been shown will be determined by the presiding Member of the hearing panel involved. (c) Nonadversarial proceedings. Hearings conducted by and for the Board are ex parte in nature and nonadversarial. Parties to the hearing will be permitted to ask questions, including follow-up questions, of all witnesses but cross-examination will not be permitted. Proceedings will not be limited by legal rules of evidence, but reasonable bounds of relevancy and materiality will be maintained. The presiding Member may set reasonable time limits for the presentation of argument and may exclude documentary evidence, testimony, and/or argument which is not relevant or material to the issue, or issues, being considered or which is unduly repetitious. (d) Informalhearings.This term is used to describe situations in which the appellant cannot, or does not wish to, appear. In the absence of the appellant, the authorized representative may present oral arguments, not exceeding 30 minutes in length, to the Board on an audio cassette without personally appearing before a Board of Veterans' Appeals hearing panel. These arguments will be transcribed by Board personnel for subsequent review by the panel

20.611 RuMe61l.Continuetlonof
represenalon folowing death of a claimant or appellant. A recognized organization, attorney, agent, or person properly designated to represent a claimant or appellant will be recognized as the representative of his or her survivors for a period of one year following the death of the claimant or appellant. A representative may also continue to act with respect to any appeal pending upon the death of the claimant or appellant until such time as a final decision has been promulgated by the Board of Veterans' Appeals. The provisions of this section do not apply to any survivor who has appointed another representative in accordance with these rules or who has indicated in writing that he or she does not wish to be represented by the claimant's or appellant's representative. Written notice that a survivor does not wish to be represented by the claimant's or appellant's representative will be

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must be filed with: Chief, Hearing Section (014B), Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. In the case of hearings conducted for the Board by agency of original jurisdiction personnel, the requests must be filed with the office of the official of the Department of Veterans Affairs who signed the notice of the original hearing date. (2) After the period described in paragraph (c)(1) of this section has passed, or after one change in the hearing date is granted based on a request received during such period, the date of the hearing will become fixed. After a hearing date has become fixed, an extension of time for appearance at a hearing will be granted only for good cause, with due consideration of the interests of other parties if a simultaneously contested claim is involved. Examples of good cause include, but are not limited to, illnecs of the appellant and/or representative, difficulty in obtaining necessary records, and unavailability of a necessary witness. The motion for a new hearing date must be in writing and must explain why a new hearing date is necessary. If good cause is shown, the hearing will be rescheduled for the next available hearing date after the appellant or his or her representative gives notice that the contingency which gave rise to the request for postponement has been removed. Ordinarily, however, hearings will not be postponed more than 30 days. An adverse determination by the agency of original jurisdiction as to whether good cause for postponement has been shown is an appealable issue. In the case of a hearing conducted by the Board of Veterans' Appeals in Washington, DC, whether good cause for establishing a new hearing date has been shown will be determined by the presiding Member of the hearing panel assigned to conduct the hearing. In the case of hearings to be conducted by the Board of Veterans' Appeals in Washington, DC, the motion for a new hearing date must be filed with: Chief, Hearing Section (014B), Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. In the case of hearings conducted for the Board by agency of original jurisdiction personnel, the motion must be filed with the office of the official of the Department of Veterans Affairs who signed the notice of the original hearing date.
(Authority: 38 U.S.C. 7102, 7104(a), 7105(a),

members. This procedure will not be construed to satisfy an appellant's request to appear in person.
(Authority: 38 U.S.C. 7102, 7104(a), 7105(a)) 20.701 Rule 701. Who may present oral argument

Only the appellant and/or his or her authorized representative may appear and present argument in support of an appeal. At the request of an appellant, a Veterans Benefits Counselor of the Department of Veterans Affairs may present the appeal at a hearing before the Board of Veterans' Appeals or before Department of Veterans Affairs field personnel acting for the Board.
(Authority: 38 U.S.C. 7102, 7104(a), 7105) 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.

(a) General.To the extent that officials scheduling hearings for or on behalf of the Board of Veterans' Appeals deternine that necessary physical resources and qualified personnel are available, hearings will be scheduled at the convenience of appellants and their representatives, with consideration of the travel distance involved. While a Statement of the Case should be prepared prior to the hearing, it is not a prerequisite for a hearing and an appellant may request that the hearing be scheduled prior to issuance of the Statement of the Case.
(Authority: 38 U.S.C. 7102, 7104(a), 7105(a))

(b) Notification of hearing.When a hearing is scheduled, the person requesting it will be notified of its time and place, and of the fact that the Government may not assume any expense incurred by the appellant, the representative or witnesses attending the hearing. (Authority: 38 U.S.C. 7102. 7104(a), 7105(a)) (c) Requests for changes in hearing dates. (1) The appellant or the representative may request a different date for the hearing within 60 days from the date of the letter of notification of the time and place of the hearing, or not later than two weeks prior to the scheduled hearing date, whichever is earlier. The request must be in writing, but the grounds for the request need not be stated. Only one such request for a change of the date of the hearing will be granted, subject to the interests of other parties if a simultaneously contested claim is involved. In the case of hearings to be conducted by the Board of Veterans' Appeals in Washington, DC, such requests for a new hearing date

representative has been authorized, the representative) fails to appear for a scheduled hearing and a request for postponement has not been received and granted, the case will be processed as though the request for a hearing had been withdrawn. No further request for a hearing will be granted in the same appeal unless such failure to appear was with good cause and the cause for the failure to appear arose under such circumstances that a timely request for postponement could not have been submitted prior to the scheduled hearing date. A motion for a new hearing date following a failure to appear must be in writing; must be submitted not more than 15 days following the original hearing date; and must set forth the reason, or reasons, for the failure to appear at the originally scheduled hearing and the reason, or reasons, why a timely request for postponement could not have been submitted. In the case of hearings to be conducted by the Board of Veterans' Appeals in Washington, DC, the motion must be filed with: Chief, Hearing Section (014B), Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. In the case of hearings conducted for the Board by agency of original jurisdiction personnel, the motion must be filed with the office of the official of the Department of Veterans Affairs who signed the notice of the original hearing date. If good cause is shown, the hearing will be rescheduled for the next available hearing date after the appellant or his or her representative gives notice that the contingency which gave rise to the failure to appear has been removed. Ordinarily, however, hearings will not be postponed more than 30 days. An adverse determination by the agency of original jurisdiction as to whether good cause for failure to appear has been shown is an appealable issue. In the case of hearings before the Board of Veterans' Appeals in Washington, DC, whether good cause for such failure to appear has been established will be determined by the presiding Member of the hearing panel to which the case was assigned.
(Authority: 38 U.S.C. 7102, 7104(a), 7105(a), 7105A)

7105A) (d) Failureto appearfor a scheduled hearing.If an appellant (or when a hearing only for oral argument by a

(e) Withdrawal of hearing requests. A request for a hearing may be withdrawn by an appellant at any time before the date of the hearing. A request for a hearing may not be withdrawn by an appellant's representative without the consent of the appellant. In the case of hearings to be conducted by the Board of Veterans' Appeals in Washington, DC, the notice of withdrawal must be

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Federal Register / Vol. 57, No. 22 / Monday, February 3, 1992 / Rules and Regulations sent to: Chief, Hearing Section (014B), Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. In the case of hearings conducted for the Board by agency of original jurisdiction personnel, the notice must be sent to the office of the official of the Department of Veterans Affairs who signed the notice of the original hearing date.
(Authority: 38 U.S.C. 7102, 7104(a), 7105(a))

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(Approved by the Office of Management and

Budget under control number 2900-0085) 20.703 Rule 703. When right to Travel Board hearing arises.

A Travel Board hearing is a "hearing on appeal". Accordingly, there is no right to a hearing before a traveling Section of the Board until such time as a Notice of Disagreement has been filed. Any request for such a hearing filed with a Notice of Disagreement, or filed subsequent to the filing of a Notice of Disagreement, will be accepted by the agency of original jurisdiction. Requests for such hearings before a Notice of Disagreement has been filed, or after the Board has entered a final decision in the case on the issue (or issues) appealed will be rejected, except for requests for such hearings after a Notice of Disagreement has been filed appealing a denial of benefits in a reopened claim which followed a prior Board decision or after a motion for reconsideration of a prior Board decision has been granted.
(Authority: 38 U.S.C. 7105(a), 7110) 20.704 Rule 704. Scheduling and notice of hearings conducted by traveling Sections of the Board of Veterans' Appeals at Department of Veterans Affairs field facilities.

(a) General.Travel Board hearings are conducted by traveling Sections of the Board of Veterans' Appeals during prescheduled visits to Department of Veterans Affairs facilities having adequate physical resources and personnel for the support of such hearings. The hearings will be scheduled during such visits in the order in which requests for such hearings were received by the agency of original jurisdiction. Requests for Travel Board hearings must be submitted to the agency of original jurisdiction, in writing, and should not be submitted directly to the Board of Veterans' Appeals. (b) Notificationof hearing.When a hearing is scheduled, the person requesting it will be notified of its time and place, and of the fact that the Government may not assume any expense incurred by the appellant, the representative or witnesses attending the hearing.

(c) Requests for changes in hearing dates. Requests for a change in a Travel Board hearing date may be made at any time up to two weeks prior to the scheduled date of the hearing if good cause is shown. Such requests must be in writing, must explain why a new hearing date is necessary, and must be filed with the office of the official of the Department of Veterans Affairs who signed the notice of the original hearing date. Examples of good cause include, but are not limited to, illness of the appellant and/or representative, difficulty in obtaining necessary records, and unavailability of a necessary witness. If good cause is shown, the Travel Board hearing will be rescheduled for the next available Travel Board hearing date after the appellant or his or her representative gives notice that the contingency which gave rise to the request for postponement has been removed. If good cause is not shown, the appellant and his or her representative will be promptly notified and given an opportunity to appear at the hearing as previously scheduled. If the appellant elects not to appear at the prescheduled date, the request for a Travel Board hearing will be considered to have been withdrawn. In such cases, however, the record will be submitted to the presiding Member of the traveling Section for review when the traveling Section of the Board arrives at the agency of original jurisdiction to conduct Travel Board hearings. If the presiding Member does not concur with the determination that. good cause has not been shown, the Travel Board hearing will be rescheduled for the next available Travel Board hearing date after the contingency which gave rise to the request for postponement has been removed. (d) Failureto appearfor a scheduled hearing. If an appellant (or when a hearing only for oral argument by a representative has been authorized, the representative) fails to appear for a scheduled Travel Board hearing and a request for postponement has not been received and granted, the case will be processed as though the request for a hearing had been withdrawn. No further request for a hearing will be granted in the same appeal unless such failure to appear was with good cause and the cause for the failure to appear arose under such circumstances that a timely request for postponement could not have been submitted prior to the scheduled hearing date. A motion for a new hearing date following a failure to appear for a scheduled Travel Board hearing must be in writing, must be filed within 15 days of the originally

scheduled hearing date, and must explain why the appellant failed to appear for the hearing and why a timely request for a new hearing date could not have been submitted. Such motions must be filed with: Travel Board Secretary (0141F1), Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. If good cause is shown, the hearing will be rescheduled for the next available hearing date after the contingency which gave rise to the failure to appear has been removed. Whether good cause for such failure to appear has been established will be determined by the presiding Member of the traveling Section of the Board. If good cause is shown, the Travel Board hearing will be rescheduled for the next available Travel Board hearing date after the appellant or his or her representative gives notice that the contingency which gave rise to the failure to appear has been removed. (e) Withdrawalof Travel Board hearing requests. A request for a Travel Board hearing may be withdrawn by an appellant at any time before the date of the hearing. A request for a Travel Board hearing may not be withdrawn by an appellant's representative without the consent of the appellant. Notices of withdrawal must be forwarded to the office of the Department of Veterans Affairs official who signed the notice of the hearing date. (Authority: 38 U.S.C. 7104(a), 7110) (Approved by the Office of Management and
Budget under control number 2900-0085)

20.705 Rule 705. Where hearings on

appeal are conducted.

(a) General.A hearing on appeal may be held in one of the following places at the option of the appellant: (1) Before a Section of the Board of Veterans' Appeals in Washington, DC, (2) Before a traveling Section of the Board of Veterans' Appeals, or (3) Before appropriate personnel in the Department of Veterans Affairs facility having original jurisdiction over the claim at issue, acting as a hearing agency for the Board of Veterans' Appeals. Personnel conducting such hearings as agents for the Board of Veterans' Appeals will allow the appellant and/or representative to present any argument and testimony, as well as any witnesses before the panel, subject to the exclusion of testimony, documentary evidence, and/or argument which is not relevant or material to the issues being considered or which is unduly repetitious. Rule 706 ( 20.700 of this part) and Rules 709 through 713 ( 20.709-20.713 of this part) are applicable to such hearings.

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Federal Register / Vol. 57, No. 22 / Monday, February 3, 1992 / Rules and Regulations NEWNW&M involving reconsideration of a prior Board of Veterans' Appeals decision on the same issue, or issues, may involve Board Members in addition to those Members making up the traveling Section. An expanded reconsideration Section considering issues involving post-traumatic stress disorder or
radiation, Agent Orange, or asbestos

(b) Request for hearing at an alternate Departmentof Veterans Affairs field facility. If the appellant desires a hearing before Department of Veterans Affairs personnel acting as a hearing agency for the Board of Veterans' Appeals as specified in paragraph (a)(3) of this section, but resides within the jurisdiction of, or in closer proximity to, a Department of Veterans Affairs facility other than the one that rendered the determination at issue, the appellant may request that the hearing be conducted at the more convenient facility. That request will be granted upon the certification of the director of the second facility that that facility has appropriate physical and personnel resources, including personnel with expertise in the issues involved, available to conduct such a hearing within a reasonable period of time.
(Authority: 38 U.S.C. 7102, 7104(a), 7105(a),

be as short as possible in order that appellate consideration of the case not be unnecessarily delayed.
(Authority: 38 U.S.C. 7102. 7104(a), 7105(a)) 20.710 Rule 710. Witnesses at hearings.

exposure will include both the traveling Section and Board Members specializing in those issues. If a Travel Board Section is comprised of fewer than three Board Members, the Chairman may assign an additional Member, or Members, to constitute a three-Member Section which will make the final decision in Washington, DC. (Authority: 38 U.S.C. 7102, 7104(a), 7110) 20.708 Rule 708. Prehearlng conference. An appellant's authorized
representative may request a prehearing

7110)
20.706 Rule 706. Functions of the presiding 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 questions of procedure. The presiding Member will assure that the course of the hearing remains relevant to the issue, or issues, on appeal and that there is no cross-examination of the parties or witnesses. The presiding Member will take such steps as may be necessary to maintain good order at hearings and may terminate a hearing or direct that the offending party leave the hearing if an appellant, representative, or witness persists in disruptive behavior. (Authority: 38 U.S.C. 7102, 7104(a). 7105(a))
20.707 Rule 707. When a hearing panel makes the final appellate decision.

(a) Hearingsin Washington, DC. Hearings held before a Section of the Board of Veterans' Appeals in Washington, DC, are normally held before Members who will make the final decision on the appeal. (b) Hearingsheld before traveling Sections of the Board.Hearings held before traveling Board Sections are normally held before Members who will make the final decision on the appeal
unless an issue on appeal involves

conference with the presiding Member of a hearing panel in order to clarify the issues to be considered at a hearing on appeal, obtain rulings on the admissibility of evidence, develop stipulations of fact, establish the length of argument which will be permitted, or take other steps which will make the hearing itself more efficient and productive. With respect to hearings to be held before Members of the Board at Washington, DC, arrangements for a prehearing conference must be made through: Chief, Hearing Section (014B), Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. Requests for prehearing conferences in cases involving hearings to be held before traveling Sections of the Board and hearings to be held before Department of Veterans Affairs personnel acting as agents for the Board must be addressed to the office of the Department of Veterans Affairs official who signed the letter giving notice of the time and place of the hearing. (Authority: 38 U.S.C. 7102, 7104(a), 7105(a))
20.709 Rule 709. Procurement of additional evidence fouowing a hearing.

(a) General.The testimony of witnesses, including appellants, will be heard. Testimony may include presentations by Members of the Congress or Congressional staff members appearing on an appellant's behalf. (b) Testimony under oath. All testimony must be given under oath unless excused because of religious principles or other good cause. If the witness declines to take an oath, he or she must be informed that testimony will be permitted on affirmation. The witness must then be requested to make a solemn declaration as to the truth of the testimony about to be given. The witness may use such words as he or she considers binding on his or her conscience. Administration of the oath for the sole purpose of presenting contentions and argument is not required.
(Authority: 38 U.S.C. 7102, 7104(a), 7105(a)) 20.711 Rule 711. Subpoenas.

radiation, Agent Orange, or asbestos exposure; the case involves the reconsideration of a prior Board of Veterans' Appeals decision; or the hearing panel consists of fewer than three Members of the Board. Appeals involving radiation, Agent Orange, or asbestos exposure issues will be decided by Board Members specializing in those issues. Decisions in appeals

If it appears during the course of a hearing that additional evidence would assist in the review of the questions at issue, the presiding Member may direct that the record be left open so that the appellant and his or her representative may obtain the desired evidence. The presiding Member will determine the period of time during which the record will stay open, considering the amount of time estimated by the appellant or representative as needed to obtain the evidence and other factors adduced during the hearing. Ordinarily, the period will not exceed 60 days, and will

(a) General.An appellant, or his or her representative, may arrange for the production of any tangible evidence or the voluntary appearance of any witnesses desired. When necessary evidence cannot be obtained in any other reasonable way, the appellant, or his or her representative, may move that a subpoena be issued to compel the attendance of witnesses residing within 100 miles of the place where a hearing on appeal is to be held and/or to compel the production of tangible evidence. A subpoena will not be issued to compel the attendance of Department of Veterans Affairs adjudicatory personnel. (b) Contents of motion for subpoena. The motion for a subpoena must be in writing, must clearly show the name and address of each witness to be subpoenaed, must clearly identify all documentary or other tangible evidence to be produced, and must explain why the attendance of the witness and/or the production of the tangible evidence cannot be obtained without a subpoena. (c) Where motion for subpoena is to be filed. In cases in which the appellate record has been transferred to the Board of Veterans' Appeals in Washington, DC, motions for a subpoena must be filed with the Office of Counsel to the Chairman (01C), Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. In those cases

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(h) Motion to quash or modify subpoena.If an individual served with a subpoena considers the subpoena to be unreasonable or oppressive, he or she may move that the subpoena be quashed or modified. Such motions must be in writing and must explain why the subpoena is unreasonable or oppressive and what relief is sought. Such motions must be filed with the office of the official who issued the subpoena not more than 10 days following receipt of the subpoena. Rulings on such motions will be made by the official who issued the subpoena, who will inform all interested parties of the ruling in writing. The quashing of any subpoena shall be conditional upon the return of the check for fees and mileage to the party on whose behalf the subpoena was issued. The question of whether the ruling by a Director of a Department of Veterans Affairs facility on a motion to quash or modify a subpoena was proper may be appealed as a part of the overall appeal, but is not subject to a separate interlocutory appeal. (Authority: 38 U.S.C. 5711, 7102(c), 7104(a))
20.712 Rule 712. Expenses of appellants, representatives, and witnesses Incident to hearings not reimbursable by the Government

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where the appellate record has not been transferred to the Board, such motions must be filed with the Director of the Department of Veterans Affairs facility where the appellate record is located. (d) When motion for subpoena is to be filed in cases involving a hearingon appeal.Motions for the issuance of a subpoena for the attendance of a witness, or the production of documents or other tangible evidence, at a hearing on appeal must be filed not later than 30 days prior to the hearing date. (e) Ruling on motion for subpoena. In cases in which the appellate record has been transferred to the Board of Veterans' Appeals in Washington, DC, the ruling on the motion will be made by the Chairman. In those cases where the appellate record has not been transferred to the Board, the ruling on the motion will be made by the Director of the Department of Veterans Affairs facility where the appellate record is located. In cases where the production of documents or other tangible evidence is sought, the granting of the motion may be conditioned upon the advancement by the appellant of the reasonable cost of producing the books, papers, documents, or other tangible evidence requested. The question of whether denial of a motion for a subpoena by a Director of a Department of Veterans Affairs facility was proper may be appealed as a part of the overall appeal, but is not subject to a separate interlocutory appeal. (f) Fees. Any person who is required to attend a hearing as a witness shall be allowed and paid the same fees and mileage as are paid witnesses in the district courts of the United States. A subpoena will not be served unless that party on whose behalf the subpoena is issued delivers a check in an amount equal to the fee for one day's attendance and the mileage allowed by law, made payable to the witness, to the official issuing the subpoena. Except for checks on the business accounts of attorneysat-law, agents, and recognized service organizations, such checks must be in the form of certified checks or cashiers checks. (g) Service of subpoenas. The official issuing the subpoena will serve the subpoena by certified mail, return receipt requested. The check for fees and mileage described in paragraph (f) of this section shall be mailed with the subpoena. The receipt, which must bear the signature of the witness or of the custodian of the tangible evidence, and a copy of the subpoena will be filed in the claims folder, loan guaranty folder, or other applicable Department of Veterans Affairs records folder.

rule wil apply even though the request is submitted within 60 days from the date of the letter of notification of the time and place of the hearing. A copy of any motion for a new hearing date required by these rules must be mailed to all other interested parties by certified mail, return receipt requested. The receipts, which must bear the signatures of the other interested parties, and a letter explaining that they relate to the motion for a new hearing date and containing the applicable Department of Veterans Affairs file number must be filed at the same address where the motion was filed as proof of service of the motion. Each interested party will be allowed a period of 10 days from the date that the copy of the motion was received by that party to file written argument in response to the motion. (Authority: 38 U.S.C. 7105A) 20.714 Rule 714. Record of hearing. (a) Board of Veterans' Appeals. A hearing before Members of the Board, whether held in Washington, DC, or before a traveling Section, will be recorded on audio tape. In those instances where a complete written transcript is prepared, that transcript will be the official record of the hearing and the tape recording will be retained at the Board for a period of 12 months following the date of the hearing as a duplicate record of the hearing. Tape recordings of hearings that have not been transcribed will be maintained by the Board as the official record of hearings and retained in accordance with retention standards approved by the National Archives and Records Administration. A transcript will be prepared and incorporated as a part of the claims folder, loan guaranty folder, or other applicable Department of Veterans Affairs records folder if one or more of the following conditions have been met: (1) The appellant or representative has shown good cause why such a written transcript should be prepared. (The presiding Member of the hearing panel will determine whether good cause has been shown. Requests that recordings of hearing proceedings be transcribed may be made orally at the time of the hearing. Requests made subsequent to the hearing must be in writing and must explain why transcription is necessary. They must be filed with: Chief, Hearing Section (014B), Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420.) (2) Testimony and/or argument has been presented at the hearing pertaining

No expenses incurred by an appellant, representative, or witness incident to attendance at a hearing may be paid by the Government.
(Authority: 38 U.S.C. 111)

20.713 Rule 713. Hearings In

simultaneously contested claims.

(a) General.If a hearing is scheduled for any party to a simultaneously contested claim, the other contesting claimants and their representatives, if any, will be notified and afforded an opportunity to be present. The appellant will be allowed to present opening testimony and argument. Thereafter, any other contesting party who wishes to do so may present testimony and argument. The appellant will then be allowed an opportunity to present testimony and argument in rebuttal. Cross-examination will not be allowed. (b) Requests for changes in hearing dates. Any party to a simultaneously contested claim may request a change in a hearing date in accordance with the provisions 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 new hearing date under the provisions of
Rule 702, paragraph {c)(1), the consent of

all other interested parties must be obtained and submitted with the request for a new hearing date. If such consent is not obtained, paragraph (c)(2) of that

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I

Federal Register / Vol. 57, No. 22 / Monday, February 3. 1992 / Rules and Regulations
III

to an issue which is to be remanded to the agency of original jurisdiction for further development or an issue which is not in appellate status which is to be referred to the agency of original jurisdiction for consideration. (3) The hearing involves an issue relating to National Service Life Insurance or United States Government Life Insurance. (4) With respect to hearings conducted by a traveling Section of the Board: (i) An issue on appeal involves radiation, Agent Orange, or asbestos exposure; (ii) The appeal involves reconsideration of a prior Board of Veterans' Appeals decision on the same issue; or (5) The Board's decision on an issue addressed at the hearing has been appealed to the United States Court of Veterans Appeals. (b) Field offices. The hearing proceedings before field office personnel after the filing of a Notice of Disagreement will be recorded and a copy of the complete written transcript incorporated as a part of the claims folder, loan guaranty folder, or other applicable Department of Veterans Affairs records folder as the official record of the hearing. (c) Copy of hearing tape recording or written transcript.One copy of the tape recording of hearing proceedings before the Board of Veterans' Appeals, or the written transcript of such proceeding when such a transcript has been prepared in accordance with the provisions of paragraph (a) of this section, and/or a copy of the written transcript of field office appellate hearing proceedings shall be furnished without cost to the appellant or representative if a request is made in accordance with 1.577 of this chapter. (Authority: 38 U.S.C. 7102, 7104(a), 7105(a))
20.715 Rule 715. Recording of hearing by appellant or representative.

Chief of the Hearing Section (014B), Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. In the case of hearings held before traveling Sections of the Board or before Department of Veterans Affairs personnel acting as agents for the Board, arrangements must be made through the office of the Department of Veterans Affairs official who signed the letter giving notification of the time and place of the hearing. (Authority: 38 U.S.C. 7102. 7104(a), 7105(a))
20.716 Rule 716. Correction of hearing transcripts.

An appellant or representative may record the hearing with his or her own equipment. Filming, videotaping or televising the hearing may only be authorized when prior written consent is obtained from all appellants and contesting claimants, if any, and made a matter of record. In no event will such additional equipment be used if it interferes with the conduct of the hearing or the official recording apparatus. In all such situations, advance arrangements must be made. In the case of hearings held before Members of the Board of Veterans' Appeals in Washington. DC, arrangements must be made with the

The tape recording on file at the Board of Veterans' Appeals or a transcript prepared by the Board of Veterans' Appeals or by Department of Veterans Affairs personnel acting as agents for the Board is the only official record of a hearing on appeal. Alternate transcript versions prepared by the appellant and representative will not be accepted. If an appellant wishes to seek correction of perceived errors in a hearing transcript, the appellant or his or her representative should move for the correction of the hearing transcript within 30 days after the date that the transcript is mailed to the appellant. The motion must be in writing and must specify the error, or errors, in the transcript and the correct wording to be substituted. In the case of hearings held before Members of the Board of Veterans' Appeals, whether in Washington, DC, or in the field, the motion must be filed with the Chief, Hearing Section (014B), Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. In the case of hearings held before Department of Veterans Affairs personnel acting as agents for the Board, the motion must be filed with the office of the Department of Veterans Affairs official who signed the letter giving notification of the time and place of the hearing. The ruling on the motion will be made by the presiding Member of the hearing 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 the event that a hearing has not been recorded in whole or in part due to equipment failure or other cause, or the official transcript of the hearing is lost or destroyed and the recording upon which it was based is no longer available, an appellant or his or her representative may move for a new hearing. The motion must be in writing and must specify why prejudice would

result from the failure to provide a new hearing. (b) Time limit forfiling motion for a new hearing.The motion will not be granted if there has been no request for a new hearing within a period of 120 days from the date of a final Board of Veterans' Appeals decision or, in cases appealed to the United States Court of Veterans Appeals, if there has been no request for a new hearing within a reasonable period of time after the appeal to that Court has been filed. (c) Where motion for a new hearingis filed. In the case of hearings held before Members of the Board of Veterans' Appeals, whether in Washington, DC, or in the field, the motion must be filed with: Chief, Hearing Section (014B), Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. In the case of hearings held before Department of Veterans Affairs personnel acting as agents for the Board, the motion must be filed with the office of the Department of Veterans Affairs official who signed the letter giving notification of the time and place of the hearing unless the appellant has received notice that the case has been transferred to the Board of Veterans' Appeals for appellate review or unless a final Board of Veterans' Appeals decision has already been promulgated with respect to the appeal in question. In such cases, the motion must be filed with the Board at the address specified herein. (d) Ruling on motion for a new hearing.Except as noted hereinafter, the ruling on the motion for a new hearing will be made by the presiding Member of the hearing panel concerned. If the presiding Member of the hearing panel is no longer available, the ruling on the motion may be made by any other member of the hearing panel who is available. In cases in which a hearing was held before Department of Veterans Affairs personnel acting as agents for the Board and the appellate record has been transferred to the Board of Veterans' Appeals for appellate review, or in which a final Board of Veterans' Appeals decision has already been promulgated with respect to the appeal in question, the ruling on the motion will be by the Chairman of the Board. Factors to be considered in ruling on the motion include, but will not be limiied to, the extent of the loss of the record in those cases where only a portion of a hearing tape is unintelligible or only a portion of a transcript has been lost or destroyed, and the extent and reasonableness of any delay in moving for a new hearing. If a new hearing is granted in a case in which a final Board

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of Veterans' Appeals decision has already been promulgated, a supplemental decision will be issued. (Authority: 38 U.S.C. 7102. 7104(a), 7105(a), 7110) 20.710-20.799 [Reserved]

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be noted in the Board's decision when rendered.

(Authority: 38 U.S.C. 7107) 20.901 Rule 901. Medical opinions and opinions of the General Counsel.

Subpart I--Evidence

20.800 Rule O00. Submisson of

additional evidence after Initiation of appeal. Subject to the limitations set forth in Rule 1304 ( 20.1304 of this part), an appellant may submit additional evidence, or information as to the availability of additional evidence, after initiating an appeal. (Authority: 38 U.S.C. 7105(d)(1)) 20.801-20.899 [Reserved]

(a) Opinion of the ChiefMedical Director. The Board may obtain a medical opinion from the Chief Medical Director of the Veterans Health Administration of the Department of Veterans Affairs on medical questions involved in the consideration of an appeal when, in its judgment, such medical expertise is needed for equitable disposition of an appeal.
(Authority: 38 U.S.C. 5107(a))

such as the identification of a complex or controversial medical or legal issue involved in the appeal which warrants such an opinion. (Authority: 38 U.S.C. 5107(a), 7102(c), 7104(c), 7109) 20.903 Rule 903. Notification of opinions secured by the Board and opportunity for response. When an opinion is requested by the Board pursuant to Rule 901 (6 20.901 of this part), the Board will notify the appellant and his or her representative, if any. When the opinion is received by the Board, a copy of the opinion will be furnished to the appellant's representative or, subject to the limitations provided in 38 U.S.C. 5701(b)(1), to the appellant if there is no representative. A period of 60 days from the date of mailing of a copy of the opinion will be allowed for response. The date of mailing will be presumed to be the same as the date of the letter or memorandum which accompanies the copy of the opinion for purposes of determining whether a response was timely filed. (Authority: 38 U.S.C. 7109(c))

Subpart J-Acton by the Board 20.900 Rule 900. Order of consideration of appeals. (a) Docketing of appeals.Applications for review on appeal are docketed in the order in which they are received. Cases returned to the Board following action pursuant to a remand assume their original places on the docket. (b) Appeals consideredin docket order.Appeals are considered in the order in which they are entered on the docket. (c) Advancement on the docket. A case may be advanced on the docket if it involves an interpretation of law of general application affecting other claims or for other good cause. Examples of such good cause include terminal illness, extreme hardship which might be relieved in whole or in part if the benefits sought on appeal were granted. etc. Advancement on the docket is requested by motion. Such motions must be in writing and must identify the law of general application affecting other claims or other good cause involved. They must also include the name of the veteran, the name of the 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), and the applicable Department of Veterans Affairs file number. The motion must be filed with: Director, Administrative Service (014), Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. The ruling on the motion will be by the Chairman' If a motion to advance a case on the docket is denied, the appellant and his or her representative will be immediately notified. If the motion to advance a case on the docket is granted, that fact will

(b) Armed Forces Institute of Pathologyopinions. The Board may refer pathologic material to the Armed Forces Institute of Pathology and request an opinion based on that material.
(Authority: 38 U.S.C. 7109(a))

(c) Opinion of the GeneralCounsel. The Board may obtain an opinion from the General Counsel of the Department of Veterans Affairs on legal questions involved in the consideration of an
appeal.
(Authority: 38 U.S.C. 7104(c))

20.904 Rule 904. Vacating a deciaion.

An appellate decision may be vacated by the Board of Veterans' Appeals at any time upon request of the appellant or his or her representative, or on the Board's own motion, on the following grounds: (a) Denialof due process.Examples of circumstances in which denial of due process of law will be conceded are: (1) When the appellant was denied his or her right to representation through action or inaction by Department of Veterans Affairs or Board of Veterans' Appeals personnel, (2) When a Statement of the Case or required Supplemental Statement of the Case was not provided, and (3) When there was a prejudicial failure to afford the appellant a personal hearing. (Where there was a failure to honor a request for a hearing and a hearing is subsequently scheduled, but the appellant fails to appear, the decision will not be vacated.) (b) Allowance of benefits based on false orfraudulentevidence. Where it Is determined on reconsideration that an allowance of benefits by the Board has been materially influenced by false or fraudulent evidence submitted by or on behalf of the appellant, the prior decision will be vacated only with respect to the issue or issues to which, within the judgment of the Board, the false or fraudulent evidence was material.

(d) Independent medical expert opinions. When, in the judgment of the Board, additional medical opinion is warranted by the medical complexity or controversy involved in an appeal, the Board may obtain an advisory medical opinion from one or more medical experts who are not employees of the Department of Veterans Affairs. Opinions will be secured, as requested by the Chairman of the Board, from recognized medical schools, universities, clinics, or medical institutions with which arrangements for such opinions have been made by the Secretary of Veterans Affairs. An appropriate official of the institution will select the individual expert, or experts, to give an
opinion.
(Authority: 38 U.S.C. 7109)

(e) For purposes of this section, the term "the Board" includes the Chairman, the Vice Chairman, any Deputy Vice Chairman, and any Member of a Section of the Board before whom a case is pending.
(Authority: 38 U.S.C. 5107(a), 7104(c), 7109) 20.902 Rule 902. Filing of requests for the procurement of opinions.

The appellant or representative may request that the Board obtain an opinion under Rule 901 (1 20.901 of this part). The request must be in writing. It will be granted upon a showing of good cause,

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Federal Register / Vol. 57, No. 22 / Monday, February 3, 1992 / Rules and Regulations (1) Motion denied. The appellant and representative or other appropriate party will be notified if the motion is denied. The notification will include reasons why the allegations are found insufficient. This constitutes final disposition of the motion. (2) Motion allowed.If the motion is allowed, the appellant and his or her representative, if any, will be notified. The appellant and the representative will be given a period of 60 days from the date of mailing of the letter of notification to present additional arguments or evidence. The date of mailing of the letter of notification will be presumed to be the same as the date of the letter of notification. The Chairman will assign a Reconsideration panel in accordance with 19.11 of this chapter. (Authority: 38 U.S.C. 7103, 7108)
20.1002 Rule 1002. [Reserved] 20.1003 Rule 1003. Hearings on reconsideration. (b) Exceptions. Final Board decisions are not subject to review except as provided in 38 U.S.C. 1975 and 1984 and 38 U.S.C. chapters 37 and 72. A remand is in the nature of a preliminary order and does not constitute a final decision of the Board. (Authority: 38 U.S.C. 511(a), 7103, 7104(a))

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

20.905-20.999 [Reserved] Subpart K-Reconsideration

20.1000 Rule 1000. When

reconsideration Is accorded. Reconsideration of an appellate decision may be accorded at any time by the Board of Veterans' Appeals on motion by the appellant or his or her representative or on the Board's own motion: (a) Upon allegation of obvious error of fact or law; (b) Upon discovery of new and material evidence in the form of relevant records or reports of the service department concerned; or (c) Upon allegation that an allowance of benefits by the Board has been materially influenced by false or fraudulent evidence submitted by or on behalf of the appellant. (Authority: 38 U.S.C. 7103, 7104) 20.1001 Rule 1001. Filing and disposition of motion for reconsideration. (a) Application requirements.A motion for Reconsideration must be in writing and must include the name of the veteran; the name of the claimant or appellant if other than the veteran (e.g., a veteran's survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual's behalf); the applicable Department of Veterans Affairs file number, and the date of the Board of Veterans' Appeals decision, or decisions, to be reconsidered. It must also set forth clearly and specifically the alleged obvious error, or errors, of fact or law in the applicable decision, or decisions, of the Board or other appropriate basis for requesting Reconsideration. If the applicable Board of Veterans' Appeals decision, or decisions, involved more than one issue on appeal, the motion for reconsideration must identify the specific issue, or issues, to which the motion pertains. Issues not so identified will not be considered in the disposition of the motion. (b) Filing of motion for reconsideration.A motion for reconsideration of a prior Board of Veterans' Appeals decision may be filed at any time. Such motions must be filed at the following address: Director, Administrative Service (014), Board of Veterans' Appeals, 810 Vermont Avenue. NW., Washington, DC 20420. (c) Disposition.The Chairman will review the sufficiency of the allegations set forth in the motion and, depending upon the decision reached, proceed as follows:

20.1101

Rule 1101. [Reserved]

20.1102 Rule 1102. Harmless error. An error or defect in any decision by the Board of Veterans' Appeals which does not affect the merits of the issue or substantive rights of the appellant will be considered harmless and not a basis for vacating or reversing such decision. (Authority: 38 U.S.C. 7103) 20.1103 Rule 1103. Finality of determinations of the agency of original jurisdiction where appeal Is not perfected. A determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if an appeal is not perfected as prescribed in Rule 302 ( 20.302 of this part). (Authority: 38 U.S.C. 7105)

After a motion for reconsideration has been allowed, a hearing will be granted if an appellant desires to appear in person. A personal hearing will not normally be scheduled solely for the purpose of receiving argument by a representative. Such argument should be submitted in the form of a written brief. Oral argument may also be submitted on audio cassette for transcription for the record in accordance with Rule 700(d) ( 20.700(d) of this part.). Requests for appearances by representatives alone to personally present argument to Members of the Board may be granted if good cause is shown. Whether good cause has been shown will be determined by the presiding Member of the hearing panel involved.
(Authority: 38 U.S.C. 7102, 7103, 7104(a),
7105(a))

20.1104 Rule 1104. Finality of

determinations of the agency of original Jurisdiction affirmed on appeal. When a determination of the agency of original jurisdiction is affirmed by the Board of Veterans' Appeals, such determination is subsumed by the final appellate decision. (Authority: 38 U.S.C. 7104(a))

20.1105 Rule 1105. New claim after

promulgation of appellate decision. When a claimant requests that a claim be reopened after an appellate decision has been promulgated and submits evidence in support thereof, a determination as to whether such evidence is new and material must be made and, if it is, as to whether it provides a basis for allowing the claim. An adverse determination as to either question is appealable. (Authority: 38 U.S.C. 5108, 7104)

20.1004-20.1099 [Reserved]

Subpart L-Finality
20.1100 Rule 1100. Finality of decisions of the Board.

(a) General.All decisions of the Board are by majority decision and will be stamped with the date of mailing on the face of the decision. Unless the Chairman of the Board orders reconsideration, and with the exception of matters listed in paragraph (b) of this section, all Board decisions are final on the date stamped on the face of the decision. With the exception of matters listed in paragraph (b) of this section, the decision rendered by the reconsideration Section in an appeal in which the Chairman has ordered reconsideration is final.

20.1106 Rule 1106. Claim for death

benefits by survivor-prior unfavorable decisions during veteran's lifetime. Except with respect to benefits under the provisions of 38 U.S.C. 1318 and certain cases involving individuals whose Department of Veterans Affairs benefits have been forfeited for treason or for subversive activities under the provisions of 38 U.S.C. 6104 and 6105, issues involved in a survivor's claim for death benefits will be decided without

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Federal Register / Vol. 57. No. 22 / Monday, February 3, 1992 / Rules and Regulations Federal Register / Vol. 57, No. 22 / Monday, February 3, 1992 / Rules and Regulations
regard to any prior disposition of those issues 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 requestappeal pending. When a Privacy Act request is filed under 1.577 of this chapter by an individual seeking records pertaining to him or her and the relevant records are in the custody of the Board, such request will be reviewed and processed prior to appellate action on that individual's appeal. (Authority: 5 U.S.C. 552a; 38 U.S.C. 7107) 20.1201 Rule 1201. Amendment of appellate decisions. A request for amendment of an appellate decision under the Privacy Act (5 U.S.C. 552a) may be entertained. However, such a request may not be used in lieu of, or to circumvent, the procedures established under Rules 1000 through 1003 ( 20.1000-20.1003 of this part). The Board will review a request for correction of factual information set forth in a decision. Where the request to amend under the Privacy Act is an attempt to alter a judgment made by the Board and thereby replace the adjudicatory authority and functions of the Board, the request will be denied on the basis that the Act does not authorize a collateral attack upon that which has already been the subject of a decision of the Board. The denial will satisfy the procedural requirements of 1.579 of this chapter. If otherwise appropriate, the request will be considered one for reconsideration under Rules 1000 through 1003 ( 20.1000-20.1003 of this part). (Authority: 5 U.S.C. 552a(d); 38 U.S.C. 7103, 7108)

4127 42

transmit copies for other official

purposes. (Authority: 38 U.S.C. 5701) (b) Release of information. Information requested from records, including copies of such records in the custody of the Board of Veterans' Appeals, may be furnished to a requester only when permitted by law and in accordance with Department of Veterans Affairs regulations. (Authority: 5 U.S.C. 552, 552a; 38 U.S.C. 5701) (c) Fees. The fees to be charged and collected for the release of information and for any copies will be in accordance with 1.526, 1.555, and 1.577 of this chapter. (Authority: 38 U.S.C. 5702(b)) (d) Waiver of fees. When information is requested from records certified to and in the custody of the Board, the required fee may be waived if such information is requested in connection with the requestor's pending appeal. (Authority: 38 U.S.C. 5702(b)) (e) Review ofrecords. Information in the records may be reviewed by Board of Veterans' Appeals employees who have a need.to do so in the performance of their duties. (Authority: 5 U.S.C. 552a(b)(1)) 20.1301 Rule 1301. Disclosure of Information. (a) Policy. It is the policy of the Board of Veterans' Appeals for the full text of appellate decisions, Statements of the Case, and Supplemental Statements of the Case to be disclosed to appellants. In those situations where disclosing certain information directly to the appellant would not be in conformance with 38 U.S.C. 5701, that information will be removed from the decision. Statement of the Case, or Supplemental Statement of the Case and the remaining text will be furnished to the appellant. A full-text appellate decision. Statement of the Case, or Supplemental Statement of the Case will be disclosed to the designated representative, however, unless the relationship between the appellant and representative is such (for example, a parent or spouse) that disclosure to the representative would be as harmful as if made to the appellant. (Authority: 38 U.S.C. 7105(d)(2)) (b) Index to decisions. The appellate decisions of the Board of Veterans' Appeals have been indexed to facilitate access to the contents of the decisions (BVA Index --01-1). The index, which is published quarterly in microfiche form with an annual cumulation, is available

for review at Department of Veterans Affairs regional offices and at the Research Center at the Board of Veterans' Appeals in Washington, DC. The index can be used to locate citations to decisions with issues similar to those of concern to an appellant. Each indexed decision has a locator number assigned to it. The manner in which the locator number is written will depend upon the age of the decision. Decisions archived prior to late 1989 will have a number such as 82-07--001. Decisions archived at a later date will have a number such as BVA-90-12345. This number must be used when requesting a paper copy of that decision. These requests must be directed to the Appellate Index and Retrieval Staff (01CI), Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. Microfiche copies of BVA Index 1-01-1 can be obtained from Promisel and Korn, Inc., 7201 Wisconsin Avenue, suite 480, Bethesda, MD 20814. (Authority: 5 U.S.C. 552(a)(2))

20.1302 Rule 1302. Death of appellant

during pendency of appeal. When an appeal is pending before the Board of Veterans' Appeals at the time of the appellant's death, the Board may complete its action on the issues properly before it without application from the survivors. (Authority: 38 U.S.C. 7104(a)) 20.1303 Rule 1303. Nonprecedentlal nature of Board decisions. Although the Board strives for consistency in issuing its decisions, previously issued Board decisions will be considered binding only with regard to the specific case decided. Prior decisions in other appeals may be considered in a case to the extent that they reasonably relate to the case, but each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law. (Authority: 38 U.S.C. 7104(a)) 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 representation, requestfor a personal hearing,or submission of additional evidence within 90 days following notification of certificationand 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 appellate

20.1202-20.1299 [Reserved]
Subpart N-Miscellaneous Cross-Reference: In cases involving access to patient information relating to a Department of Veterans Affairs program for, or the treatment of, drug abuse, alcoholism, alcohol abuse, sickle cell anemia, or infection with the human immunodeficiency virus, also see 38 U.S.C. 7332. 20.1300 Rule 1300. Access to Board records. (a) Removal of records. No original record, paper, document or exhibit certified to the Board may be taken from the Board except as authorized by the Chairman or except as may be necessary to furnish copies or to

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Federal Register / Vol. 57, No. 22 / Monday, February 3, 1992 / Rules and Regulations to the Board which precluded timely action with respect to these matters. Such motions must be in writing and must include the name of the veteran; the name of the claimant or appellant if other than the veteran (e.g., a veteran's survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual's behalf); the applicable Department of Veterans Affairs file number, and an explanation of why the request for a change in representation, the request for a personal hearing, or the submission of additional evidence could not be accomplished in a timely manner. Such motions must be filed at the following address: Director, Administrative Service (014), Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. The ruling on the motion will be by the Chairman. Depending upon the ruling on the motion, action will be taken as follows: (1) Good cause not shown. If good cause is not shown, the request for a change in representation, the request for a personal hearing, or the additional evidence submitted will be referred to the agency of original jurisdiction upon completion of the Board's action on the pending appeal without action by the Board concerning the request or additional evidence. Any personal 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 denied a benefit sought in the pending appeal and any evidence so referred which was received prior to the date of the Board's decision, or testimony presented 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 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. (2) Good cause shown. If good cause is shown, the request for a change in
APPENDIX A TO PART

review and that the appellate record has been transferred to the Board, or until the date the appellate decision is promulgated by the Board of Veterans' Appeals, whichever comes first, during which they may submit a request for a personal hearing, additional evidence, or a request for a change in representation. Any such request or additional evidence 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 determining whether the request was timely made or the evidence was timely submitted. Any evidence which is submitted at a hearing on appeal which was requested during such period will be considered to have been received during such period, even though the hearing may be held following the expiration of the period. Any pertinent evidence submitted by the appellant or representative is subject to the requirements of paragraph (c) of this section and, if a simultaneously contested claim is involved, the requirements of paragraph (d) of this section. (b) Subsequent requestfor a change in representation,requestfor a personal hearing,or submission of additional evidence. Following the expiration of the period described in paragraph (a) of this section, the Board of Veterans' Appeals 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 include, but are not limited to, illness of the appellant or the representative which precluded action during the period; death of an individual representative; illness or incapacity of an individual representative which renders it impractical for an appellant to continue with him or her as representative; withdrawal of an individual representative; the discovery of evidence that was not available prior to the expiration of the period; and delay in transfer of the appellate record

representation or for a personal hearing will be honored. Any pertinent evidence submitted by the appellant or representative will be accepted, subject to the requirements of paragraph (c) of this section and, if a simultaneously contested claim is involved, the requirements of paragraph (d) of this section. (c) Considerationof additional evidence by agency of original jurisdiction.Any pertinent evidence submitted by the appellant or representative which is accepted by the Board under the provisions of this section, as well as any such evidence referred to the Board by the originating agency under 19.37(b) of this chapter, must be referred to the agency of original jurisdiction for review and preparation of a Supplemental Statement of the Case unless this procedural right is waived by the appellant or unless the Board determines that the benefit, or benefits, to which the evidence relates may be allowed on appeal without such referral. Such waiver must be in writing or, if a hearing on appeal is conducted, formally entered on the record orally at the time of the hearing. (d) Simultaneously contested claims. In simultaneously 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. 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 period will be provided for response to such comment or rebuttal evidence. (Authority: 38 U.S.C. 7104, 7105, 7105A)

20-Cross-References
Title of cross-referenced material or comment

Sec.

Cross-reference

20.1 ................. 3.103(a) ..................................................... 38 CFR

20.100 ............... 20.200 ................. 20.202 .................

20.301 ................

38 38 38 38 38 38 38 38

CFR 20.306 ............................. CFR 20.201 ........................................................ CFR 20.202 .......................... CFR 20.300-20.306 .......................................... CFR 19.29 ........................................................... CFR 19.31 .......................................................... CFR 20.500 ......................................................... CFR 20.602 ........................................................

Statement ofpolicy. Rule 306 Legal holiday& Rule 201. Notice of Dsagreement Rule 202. SubstantiveAppeal. See re filing Notices of Disagreement and Substantive Appeals. Statement of the Casa Supplemental Statement of the Casa Rule 500 Who can file an appeal In simultaneously contested claims. Rule 602. Representaon by recognIzed organlzaone

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Federal Register / Vol. 57, No. 22 / Monday, February 3, 1992 / Rules and Regulations
APPENDIX A TO
Sec.
38 CFA 38 CFR 38 CFR 38 CFR 20.603 20.604 20.605 20.501 PART

4129

20-Cross-References--Continued
Title of cross-referenced material or comment

Cross-reference
........................................................ ........................................................ ......................................................... .........................................................

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 20.302 ................. Supplemental Statement of the Case in simuteneously contested claims. Rule 304. Filing additional evidence does not extend time limit for appeal 20.303 ................. 38 CFR 20.304 ......................................................... Rule 503. Extension of time for filing a Substantive Appeal in simultaneously contested claims 38 CFR 20.503 ......................................................... Rule 306. Legal holidays. 20.305 ................. 38 CFR 20.306 ......................................................... 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. See re time limits for perfecting an appeal. 38 CFR 20.302-20.306 ............................................ 38 CFR 20.501, 20.503 ........................................... See re time limits for perfecting an appeal in simultaneously contested claims. Rule 713. Hearings in simultaneously contested claims. 20.500 ................. ......................................................... 38 CFR 20.713 Rule 305. Computation of time limit for filing. 20.501 ................. 38 CFR 20.305 ............................ Rule 306. Legal holidays. 38 CFR 20.306 ......................................................... Rule 713. Hearings in simultaneously contested claims. 38 CFR 20.713 ......................................................... Rule 305. Computation of time limit for filing. 20.502 ................. 38 CFR 20.305 ......................................................... Rule 306. Legal holidaya 38 CFR 20.306 ......................................................... Rule 713. Heatings in simultaneously contested claims 38 CFR 20.713 ......................................................... 20.503 ................. 38 CFR 20.713 ......................................................... Rule 713. Hearings In simultaneously contested claims. Rule 713. Hearings in simultaneously contested claims. 20.504 ................. 38 CFR 20.713 ........................................................ 20.600 ................. 38 CFR 14.626 et seq ............................................. See also re representation. Rule 602. Representation by recognized organizations 38 CFR 20.602 ......................................................... Rule 603. Representation by attorneys-at-law. 38 C FR 20.603 ......................................................... Rule 604. Representation by agents 38 CFR 20.604 ........................................................ Rule 605. Other persons as representative. 38 CFR 20.605 ......................................................... Recognition of organizations. 20.602 ................. 38 CFR 14.628 ........................................................ Powers of attorney. 38 CFR 14.631 ......................................................... Rule 100. Name, business hours, and mailing address of the Board. 38 CFR 20.100 ......................................................... Rule 607 Revocation of a representative'sauthoety to act. 38 CFR 20.607 ........................................................ Rule 608. Withdrawal of services by a representative. 38 CFR 20.608 ......................................................... Rule 609. Payment of representative's fees in proceedings before Department of Veterans Affairs 38 CFR 20.609 ......................................................... field personnel and before the Board of Veterans'Appeas Rule 610. Payment of representative's expenses in proceedings before Department of Veterans 38 CFR 20.610 ......................................................... Affairs field personnel and before the Board of Veterans' Appeals. Requirements for accreditation of representatives. agents, and attorneys. 20.603 ................. 38 CFR 14.629 ......................................................... 38 CFR 14.631 ......................................................... Powers of attorney. Rule 100. Name, business hours, and mailing address of the Board. 38 CFR 20.100 ......................................................... Rule 606 Legal interns, law students and paralegals. 38 CFR 20.606 ......................................................... Rule 607. Revocation of a representative'sauthority to act 38 CFR 20.607 ............................ Rule 608. Withdrawal of services by a representahve. 38 CFR 20.608 ......................................................... 38 CFR 20.609 ............................ Rule 609. Payment of representative'sfees in proceeings 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 Departnent of Veterans Affars field personnel and before the Board of Veterans'Appeaa 20.604 ................ 38 CFR 14.631 ......................................................... Powers of attorney. 38 CFR 20.100 ......................................................... Rule 100. Name, business hours, and maing address of the Board. 38 CFR 20.607 ........................................................ Rule 607. Revocation of a representative's authority to act 38 CFR 20.608 ......................................................... Rule 606. Withdrawal of services by a representatve 38 CFR 20.609 ......................................................... Rule 609. Payment of representative's fees in prceeditg before Department of Veterans Affairs field personnel and before the Board of Veterans' Appeals 38 C FR 20.610 ........................................................ Rule 610. Payment of representaive's expenses in proceedings before Department of Veterans Affairs field personnel and before the Board of Veterans' Appeals. 20.605 ................ 38 C FR 14.630 ................................................... Authorizaton for a particular claim 38 C FR 14.63 1 ........................................................ Powers of attorney. 38 CFR 20.100 ........................................................ Rule 100. Name, business hour. and mailing address of the Board. 38 CFR 20. 07 ........................................................ Rule 607. Revocation of a representative's authorityto act Rule 608. Withdrawal of services by a representative. 38 CFR 20.608 ....................................................... Rule 609. Payment of representative's fees in proceesdings before Departmept of Veterans Affairs 38 C FR 20.609 ....................................................... field personnel and before the Board of Veterans' Appeals Rule 610. Payment of representative's expenses In proceedngs before Departent of Veterans 38 CFR 20.610 ........................................................ Affairs field personnel and before the Board of Veterans'Appeals. 20.606 ................ Rule 603. Representation by attorneys-at-law. 38 C FR 20.603 ........................................................ 20.607 .............. See also re revocation of powers of attorney, 38 CFR 14.631(d) .................................................... 20.609 .............. 38 CFR 14.629 ....................................................... Requirements for accreditation of representaves, agents, and attorneys. Rule 603. Represention by attoreys-at-law. 38 CFR 20.603 ....................................................... Rule 604. Representation by agents 38 CFR 20.604 ........................................................ Rule 606. Legal intern law students and paralgaos 38 CFR 20.606 ........................................................ Rule 61f Payment of representative's expenses in pocee"dngs before Deparment of Veterans 38 CFR 20.610 ............................. Affairs field personnel and before the Board of Veterans' Appeals. 20.610............... ........................................................ 38 CFR 20.609 Rule 609. Payment of representative's fees in proceedingsbefore Department of Veterans Affak, field personnel and before the Board of Veterans' Appeal 20.611 ................ 38 CFR 1.525(d), 14.31(e) ................................... See also re continuation of authorty conferred by powers of attorney upon the dieath of a claimant. 20.701 ........ 38 CFR 20.710 ................................................... Rule 710. Witnesses at heaings. Rule 704. Schedutng and notice of heaings condOcted by traveling Sections of the Bowd of 20.702................ 38 CFR 20.704 ....................................................... Veterans' Appeals at Department of Vetirns Affars faciities. 38 CFR 20.713 ...................... ........... ....... Rule 713. Hearings in slmultoneou ... contested clams. Rule 201. Notice of Lsagreement 20.703 ....... 38 CFR 20.201 .............................

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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.
20.704 ................

Cross-reference
38 CFR 20.702 ........................................................

Tite of cross-referenced material or comment

Rule 702. Schedufing and notice of hearings conducted by the Board of Veterans' Appeals in

wasligft, D, and 4' agency of oromal unsalichon personnel acting on behalf of the Board

20.706 ..............20.700(c) .................................... 38 CFR 38 CFR 20.708 .. ................... .. 38 CFR 20.70 ........... 20.707-........ 38 CFR 19.11 ............................................ 20.708 ................ 38 CFR 20.606(d) ....................................................

of Veterens' Appeals at field facltiee See also re the presiding Member's role in the conduct of hearings.

Ruile 708. Preheaft conference. Rule 709. Procimentof addional evidone too*ng a hearing.
ReconalerAbn Sechbn See 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' Appeals Rule 711. Subpoesns. See for further information on subpoenas, Including action to be taken in the event of

20.709 ................

38 CFR 19.37 ........................................................... 38 CFR 20.1304 .................................................

20.710 ................ 20.711 ................ 20.713 ................

38 CFF 20.711 ................................................. 38 CFR 2.1 ................................................................

38 CFR 20.702 .................................... 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 Board of Veterans'Appeals at field facihea 38 CF 20.704 ...................................... Rule 704. Schedu and notice of hearings conducted by traveain Section of the Board of Veterane' Appeals at Department of Veterans Affairs facilities. 20.715 ................. 38 CFR 20.706 ......................................................... Rule 706 Functions of the presiding Membe. 20.800 ................. 38 CFR 20.304 ........................... Rule 304. Fig addibonal evidence does not extend tme fimit for appeal 38 CR 20.709 ..................................... Rule 709. Procurmenlof additional evidence fol/own a hearing. 38 CFR 20.1304 ................................................... 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' Appeals 20.901 ................. 38 CFR 14.507 ......................................................... See re opinions of the Genera Counsel of the Department of Veterans Affairs. 20.903 ................. 38 CFR 20.305 ......................................................... Rule 305. Computation of time limit for i&g. 38 CFR 20.306 ............... ...................... Rule 306. Legal hohdaya 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 matral 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 unmistakable error, in cases Involving claims for benefits under the provision 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 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. Dieiosure of informaon. 20.1301 .............. 38CFR 1.577 .................... Access to record& 20.1302 ........ 38 CFR 20.811 ................................................. Rule 61 f. Continuabtion of representationfolowtng death of a climant or appellant 20.1304 ............. 36 CFA 3.103(C), 20.700-20.717 .............. See eso re hearbng 38 CFR 3.156 .................................................... New and meterisl eviwe. 38 CFR 3.160(e) ........... ......... ........... Reopened cm. 38 CFR 20.305 . . ....................... Rle 305. Computationof tme hist for AI 38 CFR 20.306 ................................................... Rue 306. Legel hokisys

noncomplica.

[FR Doc. 92-1971 Filed 1-31--W; 8:45 am]

ELLI COoE 8320-01-

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Federal Register / Vol. 58, No. 57 / Friday, March 26, 1993 / Rules and Regulations the result of a service-connected disease or injury (38 CFR 3.310(a)). By enacting Public Law 98-542, Congress clearly intended to establish an avenue for VA to compensate veterans for disabilities or deaths caused by ionizing radiation exposure, since existing statutes and regulations had proven inadequate for at purpose. Just as clearly, 38 CFR 3.311b(h), which implements the radiation provisions of Public Law 98-542, does not preclude awards of service connection under

16359

this amendment would not directly of service connection for any disease or affect any small entities. Only VA. injury shown to have been incurred or beneficiaries could be directly affected. aggravated during active service in Therefore, pursuant to 5 U.S.C. 605(b), accordance with 3.304, 3.306, 3.307, this amendment is exempt from the or 3.309. However, service connection initial and final regulatory flexibility will not be established under this analysis requirements of sections 603 section, oi any other section except for and 604. 3.309(d) or 3.310(a), on the basis of In accordance with Executive Order exposure to ionizing radiation and the 12291, Federal Regulation, the Secretary subsequent development of any disease has determined that this regulatory not specified in paragraph (b)(2) of this amendment is non-major for the section. following reasons: 3.303, 3.304, 3.306, or 3.307, since it (1) It will not have an annual effect on (FR Doc. 93-6928 Filed 3-25-93; 8:45 am] ImiWH CODE 830-U1-. is a pplied only after service connection the economy of $100 million or more. under those regulations has already (2) It will not cause a major increase been precluded because a condition in costs or prices. manifested itself beyond the time frames (3) It will not have significant adverse 38 CFR Part 3 effects on competition, employment, they impose. RIN 2900-AFOI As to the commenter's concern that investment, productivity, innovation, or this amendment would preclude Procedural Due Process and Appellate on the ability of United States-based application of the reasonable doubt Rights enterprises to compete with foreignprovisions of 3.102, we believe those based enterprises in domestic or export AGENCY: Department of Veterans Affairs. concerns are unfounded because the markets. ACTION: Final rule. reasonable doubt provisions are applied The Catalog of Federal Domestic at several stages throughout the Assistance program numbers are 64.109 and SUMMARY: The Department of Veterans adjudication of ionizing radiation 4.110. Affairs (VA) has amended its claims. The initial application of the adjudication regulations concerning List of Subjects in 38 CFR Part 3 provisions of 3.102 occurs when the procedural due process and appellate Secretary, after receiving the advice of Administrative practice and rights. This amendment is necessary the VACEH, determines whether it is at procedure, Claims, Handicapped, because the previous regulations limit least as likely as not that a significant Health care, Pensions, Veterans. locations at which VA may hold statistical association exists between a Approved: March 3,1993. claimant hearings. The intended effect specific condition and exposure to of this amendment is to allow the iJn Brown. ionizing radiation (38 CFR 1.17 (d) and Veterans Benefits Administration (VBA) Secreftuy of Veteraw Affairs. (0). When the ionizing radiation dose greater flexibility in providing hearing For the reasons set out in the estimates provided by the Department of locations for claimants desiring a Defense are reported as a range of doses preamble, 38 CFR part 3 is amended as hearing. set forth below: to which the veteran may have been EFFECliVE DATE: This amendment is exposed, VA applies the provisions of PART 3-ADJUDICATION effective March 26, 1993. 9 3.102 againby using the highest FOR FURTHER INFORMATION CONTACT: John estimated level as the basis for Subpart A--Pension, Compensation, Bisset, Jr., Consultant, Regulations Staff, subsequent determinations. VAof applies and Dependency and Indemnity Compensation and Pension Service, the benefit of doubt provisions Compensation Veterans Benefits Administration, 3.102 yet again when the Under Department of Veterans Affairs, 810 1. The authority citation for part 3, Secretary for Health renders an opinion subpart A.continues to read as follows: Vermont Avenue, NW., DC 20420, (202) as to whether it is as likely as not that 233-3005. a veteran's radiogenic disease resulted Authority: 105 Stat. 386; 38 U.S.C. 501(a), SUPPLEMENTARY INFORMATION: VA from the level of ionizing radiation to unless otherwise noted. which he or she was exposed during published a proposal to amend 38 CFR 2. In 3.311b(b)(2)(xvi), remove the 3.103(c)(1) to allow VBA greater military service. word "and"; in S 3.311b(b)(2)(xvii), For the reasons set forth above, VA flexibility in providing hearing locations remove the mark ".", and add, in its believes that the proposed amendment for claimants desiring a hearing in the place, the mark ";'. to 3.311b(h) is not only consistent Federal Register of June 30,1992 (57 FR 3. In 3.311b, add paragraphs with the Secretary's authority under 38 29052-53). Interested persons were (b)(2)(xviii) and (b)(2)(xix), and revise U.S.C. 501(a), but also with the invited to submit written comments, paragraph (h) to read as follows: provisions of Public Law 98-542. suggestions or objections on or before VA appreciates the comment July 30. 1992. We received one 13.311b Claims based on exposure to submitted in response to both proposed Ionlzing radiation. comment from the Paralyzed Veterans of rules, which are now combined and America. adopted with minor technical The commenter, while agreeing that (b)'' amendments. the proposed amendment to hold (2) " The Secretary hereby certifies that (xviii) Ovarian cancer, and hearings at additional sites would be a this regulatory amendment will not (xix) Parathyroid adenoma. convenience to certain claimants, have a significant economic Impact on suggested that the practice could be a substantial number of small entities as detrimental to the claimant's interest if' (h) Service connection under other they are defined in the Regulatory the services of his or her representative provisions. Flexibility Act (RFA), 5 U.S.C. 601-612. Nothing in this section will be or veterans service organization would The reason for this certification is that construed to prevent the establishment be unavailable. For this reason, the

ADD-127

16360

Federal Register / Vol. 58, No. 57 / Friday, March 26, 1993 / Rules and Regulations amendment is non-major for the following rea s: (1)It will not have an annual effect on
the economy of $100 million or more. (2) It will not cause a major incase in costs or prices. (3) It will not have significant adverse effects on competition, employment. investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreignbased enterprises in domestic or export markets. The Catalog of Federal Domestic Assistance program numbers ae 64.100.
64.101, 64.104,64.105,84.106, 64.100 and 64.110.

commenter recommended that VA's notice of the place of the hearing include notice as to the availability of the appointed representative and of an alternate site that may be more agreeable to both the claimant and his or her representative. This amendment to 3.103(c)(1) allows VA the flexibility to provide hearings at any VA facility or other federal building at which suitable hearing facilities are available, at the option of VA and subject to available resources. The claimant would always have the option to request that the hearing be conductef at the VA regional office having jurisdiction over the claim or at the VA regional office nearest the claimant's home. VA will exercise its option to offer a hearing at a site other than a VA regional office only after assessing the circumstances and the availability of iesources, which may vary significantly from office to office. Hearings will most likely be offered at locations where concentrations of claimants have requested hearings, and service.. organizations may elect to send a representative to those sites. VA policy Is to notify the claimant and his or her representative (38 CFR 1.525(d)) of the date, time and location of the hearing, and whether the claimant's representative will be available is best determined by the claimant and his oil her representative after they have been notified of a hearing at an alternate site. While we do not object to notifying claimants that the hearing may be held at the regional office, we believe it is more appropriate to handle this matter procedurally rather than by reulation. In order to more clearly emphasize that hearings at remote sites will be offered solely at VA's option, we have slightly modified the regulatory language. VA appreciates the comment submitted in response to the proposed rule, which is now adopted with the described amendment. The Secretary hereby certifies that this regulatory amendment will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612. The reason for this certification is that this amendment would not directly affect any small entities. Only VA beneficiaries could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this amendment is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604. In accordance with Executive Order 12291, Federal Regulation. the Secretary has determined that this regulatory

AC11OK Final rule. SummARY: This Report and Order allocates VHF and UHF radio spectrum for mobile-satellite services (MSS) using low-Earth satellites (LEOs). This action responds to decisions made at the 1992 World Administrative Radio Conference (WARC-92) and to petitions for Rule Making filed by Orbital Communications Corporation (ORBCOMM), STARSYS Inc. (STARSYS), and Volunteers in Technical Assistance (VITA). This allocation will be used to provide data messaging and position determination services using non-voice nongeostationary satellites. Provision of such services using LEOs is expected to be cost effective compared to providing cor ble services using geostationary sate ites. DATES: April 26,1993. FOR FURTHER W1RMA1ON CONTACT. Ray LaForge, Office of Engineering and Technology, telephone (202) 653-8117.
SUpPiEmENTARY IIFORMATION: This is a

List of Subjects in 3 CFR Part 3 Administrative practice and procedure, Claims, Handicapped, Health care. Pensions, Veterans.
Approved: March 3,1993. Jame Brown. SecretayofVeterns Affair.

For the reasons set out in the preamble, 38 CFR part 3 is amended as set forth below: PART 3-ADJUDICATION Subpart A-Pension, Compensation, and Dependency and Indemnity Compensation 1. The authority citation for part 3, subpart A, continues to read as follows: unless otherwise noted.
Authority 105 Stat. 386; 38 US.C. SM(a),

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 second sentence, after the words "claimant's home having adjudicative functions." add the words "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." Remove the words "and will provide VA personnel" and add, in their place, the words "VA will provide personnel".
[FR Dec. 93-6929 Filed 3-25-3; 8:45 am]
8IUNG COO 832&-O-

summary of the Commission's Report and Order in ET Docket No. 91-280 adopted on January 14, 1993, and released on February 5, 1993. The complete text of this Report and Order is available for inspection and copying during normal busine s hours in the FCC Public Reference Center (room 239), 1919 M Street. NW., Washington, DC. The complete text of this Report and Order also may be purchased from the Commission's duplication contractor, International Transcription
Service, Inc., 2100 M Street, NW., suite

140, Washington DC 20036, (202) 8573800.

Summary of Report and Order

1. The Commission concludes that demand warrants allocation of spectrum in the VHF/UHF bands for provision of data messaging and position determination services using LEO& For these purposes the Commission allocates for LEP-MSS the 137-137.025, 137.175-137.825, and 400.15-401 MHz bands (space-to-Earth) on a primary basis; the 137.025-137.175 and 137.825-138 MHz bands (space-toEarth) on a secondary basis; and the
148-150.05 and 399.9-400.05 MHz

FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 2 lET Docket No. 01-280; FCC 03-29] Low-Earth Orbit Satellites Below I GHz AGENCY: Federal Communications Commission.

bands (Earth-to-space) on a primary basis. Allocation of these bands is consistent with international frequency allocations made at the World Administrative Radio Conference in March, 1992 (WARC-92). The Commission also adopts specific conditions governing use of these bands for LEO-MSS to avoid interference to existing users. Further, the Commission awards a pioneer's preference to VITA.

ADD-128

27934

Federal Register / Vol. 58, No. 90 / Wednesday, May 12, 1993 / Rules and Regulations
(3) Notwithstanding this deviation. the City of Chicago, after receiving notice twenty-four hours in advance of the intended passage of the flotilla through the draws of the bridges, shall ensure that: (a) The necessary bridgetenders are provided for the safe and prompt opening of the draws; (b) The operating machinery of each draw is maintained in a serviceable condition; and (c) The draws are operated at sufficient intervals to assure their satisfactory operation. (4) The Kinzie Street bridge, mile 1.81 across the North Branch, and Cermak" Road bridge, mile 4.05 across the South Branch, shall continue to operate in accordance with requirements presently established in 33 CFR 117.391. (5) All draws shall open for commercial vessels in accordance with current regulations In 33 CFR 117.391. In accordance with current regulations, including 33 CFR 117.391, government vessels of the United States, state and local vessels used for public safety, and vessels in distress shall be passed through the draws of all bridges as soon aspossible at all times. (6) This period of deviation is effective from the beginning of Monday, April 26 1993, to the beginning of Monday, May 31, 1993. Dated: 30 April 1193. A.D. Shepard,
Captain,U.S. CoastGuard. Commander, Ninth Coast GuardDistrict.

(1) The Coast Guard has granted the City of Chicago, Department of Transportation, a temporary deviation from the operating requirements at 33 CFR 117.391 governing certain bridges owned by the City of Chicago over the Chicago River, as follows:
Main Branch

Chairman (01C), Board of Veterans' Appeals, 810 Vermont Avenue NW., Washington, DC 20420 (202) 233-2978.
SUPPLEMENTARY INFORMATION: The final

Lake Shore Drive Columbus Drive Michigan Avenue Wabash Avenue State Street Dearborn Street Clark Street La Salle Street Wells Street Franklin-Orleans Street
South Branch

Lake Street Randolph Street Washington Street Madison Avenue Monroe Street Adams Street Jackson Boulevard Van Buren Street Eisenhower Expressway Harrison Street Roosevelt Road 18th Street Canal Street South Halsted Street
South Loomis Street South Ashland Avenue North Branch Grand Avenue Ohio Street Chicago Avenue North Halsted Street

(2) This deviation from normal operating regulations is authorized in accordance with the provisions of title 33 of the Code of Federal Regulations, 117.43, for the purpose of evaluating possible changes to the permanent regulations. This temporary deviation applies only to passage of recreational vessels. Under the deviation the bridges listed above operated by the City of Chicago need not open for the passage of recreational vessels unless the City of Chicago receives a twenty-four hour advance notice for passage, and need not open for recreational vessels except during the following periods, subject to the conditions indicated: (a) From 6 a.m. on Saturdays through 7 p.m. on Sundays, the draws shall open for the passage .of organized flotillas consisting of no less than five and not" more than twenty-five vessels. (b) On Tuesdays and Thursdays the draws shall open for the passage of organized flotillas consisting of no less than five and not more than twenty-five vessels, from 6:30 p.m. until all organized flotillas have safely completed passage.

(FR Doc. 93-11236 Fied 5-11-93; 8:45 am]

Balm COO 4 "10-14-1

DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 20 RIN 2900-AF90 Rules of Practice; Hearings Before the

Board on Appeal

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

SUMMARY: This document contains amendments to the Department of Veterans Affairs (VA) final Rules of Practice of the Board of Veterans' Appeals concerning hearings before the Board. References to hearings held by VA employees acting as "agents" for the Board at VA regional offices have been deleted. This amendment is intended to clarify the opportunities available for hearings before the Board. EFFECTVE DATE: May 12, 1993.
FOR FURTHER INFORMATION CONTACT:

Mr. Steven L. Keller, Counsel to the

regulations that are the subject of these amendments are the Board of Veterans' Appeals Rules of Practice concerning hearings. The current regulations refer to hearings conducted by VA personnel acting as "agents" for the Board of Veterans' Appeals. This procedure will no longer be used. Therefore, this final rule removes references to hearings conducted by VA personnel acting as "agents" for the Board. The Board of Veterans' Appeals has reexamined its relationship with the Veterans Benefits Administration (VBA) as it relates to the conduct of adjudicatory proceedings by both organizations. As a result of this review, we have concluded that a clear demarcation should exist between the conduct of hearings by the Board and hearings conducted by VBA employees at regional offices. The establishment of this demarcation resulted in the cessation of Board of Veterans' Appeals hearings being conducted by VBA employees as "agents" of the Board. The VBA will still conduct hearings by its hearing officers as part of its adjudicatory process, and a record of those hearings will be made a part of the claims file for review by the Board in the event an appeal is certified to the Board. The Board will, at its level in the appellate process, continue to afford an opportunity to each claimant to have a hearing before a Member or Members of the Board either in Washington, DC., or at a VA regional office. This change will have the effect of roviding an appellant an opportunity or a hearing before VBA personnel and then an opportunity for another hearing at the Board level. In addition to deleting references to hearings held by regional office personnel acting as "agents" for the Board, amendments clarifying the opportunities for hearings held before the Board have been made. This regulation Is effective immediately. Notice of proposed rulemaking does not apply to this regulation under the exception provided in 5 U.S.C. section 553(b)(A) for interpretative rules, general statements of policy, or rules of agency organizations, procedure or practice. The Secretary has determined that these regulations do not contain a major rule as that term is defined by Executive Order 12291, Federal Regulation. The regulations will not have a $100 million annual effect on the economy and will

ADD-129

Federal Register /.Vol. 58, No. 90 / Wednesday, May 12, 1993 / Rules and Regulations not cause a major Increase in costs or prices for anyone. They will have no significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreignbased enterprises in domestic or export markets. The Secretary hereby certifies that these regulatory amendments will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. The reason for this certification is that the regulations have only a limited effect on claimants/appellants and their representatives. Therefore, pursuant to 5 U.S.C. 605(b), these regulations are exempt from the initial and final regulatory flexibility analyses requirements of 603 and 604. There are no Catalog of Federal Domestic Assistance numbers associated with these regulatory amendments. List of Subjects in 38 CFR Part 20 Administrative practice and procedure, Claims, Lawyers, Legal services, Veterans. Approved: April 13, 1993. lese Brown, Secretaryof VeteransAffairs. For the reasons set forth in the preamble, 38 CFR part 20 is amended as follows: PART 20-BOARD OF VETERANS' APPEALS: RULES OF PRACTICE 1. The authority citation for part 20 continues to read as follows: Authority: 38 U.S.C. 501(a) 2. In part 20, the heading for Subpart H is revised as follows: Subpart H-Hearings before the Board on Appeal
3. In 38 CFR part 20, 20.700 is 5 20.701 Rule 701. Who may present oral argument.

27935

Only the appellant and/or his or her authorized representative may appear and present argument in support of an appeal. At the request of an appellant, a Veterans Benefits Counselor of the Department of Veterans Affairs may present the appeal at a hearing before the Board of Veterans' Appeals.
(Authority: 38 U.S.C. 7102, 7104(a), 7105)

5. In section 20.702. the heading, and paragraphs (a), (c), (d), and (e) are revised to read as follows:
J 20.702 Rule 702. Scheduling and notice of hearings conducted by the Board of Veterans' Appeals In Washington, DC.

(a) General.To the extent that officials scheduling hearings for the Board of Veterans' A ppeals determine that necessary physical resources and qualified personnel are available, hearings will be scheduled at the convenience of appellants and their representatives, with consideration of the travel distance involved. While a Statement of the Case should be prepared prior to the hearing, it is not a prerequisite for a hearing and an appellant may request that the hearing be scheduled prior to issuance of the Statement of the Case.
(Authority: 38 U.S.C. 7102, 7104(a), 7105(a) (b)* * *

simultaneously contested claim is involved. Examples of good cause include, but are not limited to, illness of the appellant and/or representative, difficulty in obtaining necessary records, and unavailability of a necessary witness. The motion for a new hearing date must be in writing and must explain why a new hearing date is necessary. If good cause is shown, the hearing will be rescheduled for the next available hearing date after the appellant or his or her representative gives notice that the contingency which gave rise to the request for postponement has been removed. Ordinarily, however, hearings will not be postponed more than 30 days. In the case of a hearing conducted by the Board of Veterans' Appeals in Washington, DC, whether good cause for establishing a new hearing date has been shown will be determined by the presiding Member of the hearing panel assigned to conduct the hearing. In the case of hearings to be conducted by the Board of Veterans' Appeals in Washington, DC, the motion for a new hearing date must be filed with: Chief, Hearing Section (0141F), Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420.
(Authority: 38 U.S.C. 7102, 7104(a), 7105(a), 7105A)

amended by revising the first sentence of paragraph (c) to read as follows: 20.700 Rule 700. General.

(c) Nonadversarialproceedings. Hearings conducted by the Board are ex parte in nature and nonadversarial.

4. Section 20.701 is revised to read as follows:

(d) Failureto appear a scheduled for hearing.If an appellant (or when a hearing only for oral argument by a representative has been authorized, the representative) fails to appear for a uled hearing and a request for postponement has not been received and granted, the case will be processed as though the request for a hearing had been withdrawn. No further request for a hearing will be granted in the same appeal unless such failure to appear was with good cause and the cause for the failure to appear arose under such circumstances that a timely request for postponement could not have been submitted prior to the scheduled hearing date. A motion for a new hearing date following a failure to appear must be in writing; must be Section (0141F), Board of Veterans' submitted not more than 15 days Appeals, 810 Vermont Avenue NW., following the original hearing date; and Washington, DC 20420. must set forth the reason, or reasons, for (2) After the period described in the failure to appear at the originally paragraph (c)(1) of this section has scheduled hearing and the reason, or passed, or after one change in the reasons, why a timely request for earing date is granted based on a postponement could not have been request received during such period, the submitted. In the case of hearings to be date of the hearing will become fixed. conducted by the Board of Veterans' After a hearing date has become fixed, Appeals in Washington, DC, the motion an extension of time for appearance at must be filed with: Chief, Hearing a hearing will be granted only for good Section (0141F), Board of Veterans' cause, )vith due consideration of the Appeals, 810 Vermont Avenue, NW, interests of other parties if a Washington, DC 20420. If good cause is. (c) Requests for changes in hearing dates. (1) The appellant or the representative may request a different date for the hearing within 60 days from the date of the letter of notification of the time and place of the hearing, or not later than two weeks prior to the scheduled hearing date, whichever is earlier. The request must be in writing, but the grounds for the request need not be stated. Only one such request for a change of the date of the hearing will be granted, subject to the interests of other parties if a simultaneously contested claim is involved. In the case of hearings to be conducted by the Board of Veterans' Appeals in Washington, DC, such requests for a new hearing date must be filed with: Chief, Hearing

ADD-130

27936

Federal Register / Vol. 58, No. 90 / Wednesday, May 12, 1993 / Rules and Regulations
preductive. With respect to hearings to be held before Members of the Board at Washington, DC, arrangements for a prehearing conference must be made through: Chief. Hearing Section (0141F), Board of Veterans' Appeals. 810 Vermont Avenue, NW., Washington, DC 20420. Requests for prehearing conferences in cases involving hearings to be held before traveling Sections of the Board must be addressed to the office of the Department of Veterans Affairs official who signed the letter giving notice of the time and place of the hearing. (Authority: 38 U.S.C. 7102, 7104(a). 7105(a)) 8. In section 20.714. paragraph (b) is removed, and paragraph (c) is redesignated as the new paragraph (b) and Is revised to read as follows: 120.714 Rule 714. Record of Hearings. (a) * * * (b) Copy of hearingtape recordingor written transcript.One copy of the tape recording of hearing proceedings before the B= of Veterans' Appeals, or the written transcript of such proceedings when such a transcript has been prepared in accordance with the provisions of paragraph (a) of this section, shell be furnished without cost to the appellant or representative If a request 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 as follows: 120.716 Rule 71& Recording of hearing by appellant or representative. An appellant or representative may record the hearing with his or her own equipment. Filming. videotaping or teleising the hearing may only be authorized when prior written consent is obtained from all appellants and contesting claimants, if any, and made a matter of record. In no event will such additional equipment be used if it interferes with the conduct of the hearing or the official recording apparatus. In all such situations. advance arrangements must be made. In the case of hearings held before the Board of Veterans' Appeals in Washington, DC, arrangements must be made with the Chief of the Hearing Section (0141F), Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. In the case of hearings held before traveling Sections of the Board. arrangements must be made through the office of the Department of Veterans Affairs official who signed the letter giving notification of the time and place of the hearing. (Authority: 38 U.S.C. 7102, 7104(a). 7105(a)) 10. Section 20.716 is revised to read as follows:
520.716 Rule 716. Correction of heaing transcripts. The tape recording on file at the Board of Veterans' Appeals or a transcript prepared by the Board of Veterans' Appeals is the only official record of a hearing before the Board. Alternate transcript versions prepared by the appellant and representative will not be accepted. If an appellant wishes to seek correction of perceived errors In a hearing transcript, the appellant or his or her representative should move for the correction of the hearing transcript within 30 days after the date that the transcript is mailed to the appellant. The motion must be in writing and must specify the error, or errors, in the transcript and the correct wording to he substituted. In the case of hearings held before the Board of Veterans' Appeals, whether in Washington, DC. or in the field, the motion must be filed with the Chief, Hearing Section (0141F), Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. The ruling on the motion will be made by the presiding Member of the hearing panel concerned. (Authority: 38 U.S.C. 7102. 7104(a), 7105(a),
7110)

shown, the hearing will be rescheduled for the next available hearing date after the appellant or his or her representative gives notice that the contingency which gave rise to the failure to appear has been removed. Ordinarily, however, hearings will not be postponed more than 30 days. In the case of hearings before the Board of Veterans' Appeals In Washington, DC, whether good cause for such failure to appear has been established will be determined by the presiding Member of the hearing panel to which the case was assigned. (Authority: 38 U.S.C. 7102, 7104(a), 7105(a),
7105A)

(a) Withdrawal of hearingrequests. A request for a hearing may be withdrawn by an appellant at any time before the date of the hearing. A request for a hearing may not be withdrawn by an appellant's representative without the consent of the appellant. In the case of hearings to be conducted by the Board of Veterans' Appeals in Washington. DC, the notice of withdrawal must be sent to: Chief, Hearing Section (0141F), Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington. DC
20420.

(Authorlty. 38 U.S.C. 7102. 7104(a) 7105(a)) (Approved by the Office of Management and Budget under control number 2000-0085.) 6. Section 20.705 is revised as follows:
conductsd.

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.

20.705 Rule 705 Where hearings we

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) Before a traveling Section of the Board of Veterans' Appeals at Department of Veterans Affairs facilities having adequate physical resources and ersonnel for the support of such
earings.

(a) * * * (b)* * *

7105(a), 7110) 7. Section 20.708 is revised to read as follows: 120.706 Rule 70& PrehwiIng conference. An appellant's authorized representative may request a prehearing conference with the presiding Member of a hearing panel in order to clarify the issues to be considered at a hearing on appeal, obtain rulings on the admissibility of evidence, develop stipulations of fact, establish the length of argument which will be permitted, or take other steps which will make the hearing itself more efficient and

Authority: 38 U.S.C- 7102, 7104(a).

(c) Where motionfor a new hearing is filed. In the case of hearings held before the Board of Veterans' Appeals, whether in Washington, DC. or in the field, the motion must be filed with: Chief, Hearing Section (0141F), Board of Veterans' Appeals, 810 Vermont Avenue. NW., Washington, DC 20420, (d) Ruling on motion for a new hearing.Except as noted hereinafter, the ruling on the motion for a new hearing will be made by the presiding Member of the hearing panel concerned. If the presiding Member of the hearing panel is no longer available, the ruling on the motion may be made by any other member of the hearing panel who is available. In cases in which a final Board of Veterans' Appeals decision has already been promulgated with respect to the appeal in question, the ruling on the motion will be by the Chairman of the Board. Factors to be considered in ruling on the motion include, but will not be limited to, the extent of the loss of the record in those cases where only a portion of a hearing tape is unintelligible or only a portion of a

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Federal Register / Vol. 58, No. 90 / Wednesday. May 12, 1993 / Rules and Reg~dations transcript has been lost or destroyed, and the extent and reasonableness of any delay in moving for a new hearing. If a new hearing is granted in a case in which a final Board of Veteans Appeals decision has akeady been promulgated, a supplemental decision will be Issued.
(Authority- 38 U.S.C. 7102, 71041a). 7105(aL.
711a) 401 M Street. SW., Washington, DC

27937

FR 13565). The EPA's completeness criteria for SIP submittals are set out at BUM CODE 8320-40 CFR part 51, appendix V (1991). as SUPPLEMENTARY INFORMATION: One area amended by 56 FR 42216 (August 26, in the State of New Mexico, Anthony, 1991). The EPA attempts to make ENVIRONMENTAL PROTECTION was designated nonattainment for PMcompleteness determinations within 60 10 and classified as moderate under AGENCY days of receiving a submission. sections 107(d)(4XB) and 188(a) of the However. a submittal Is deemed Clea Air Act (Act), upon enactment of 40 CFR Part 52 complete by operation of law if a the CAAA of 1990. PM-10 is defined as completeness determination is not made particulate matter with an aerodynamic [NN-44-1-605 FRL-4651-3 diameter less than or equal to a nominal by the EPA six months after receipt of the submission. Approval and Promulgation of Air 10 micrometers. One of the required The State of New Mexico held a Quality Implementation Plans; New Items to be included in the Anthony Mexico; Revision to the State PM-10 SIP was a revision to the existing public hearing on June 12, 1992, to entertain public comment on proposed Implementation PIan; Addressing New nonattainment permit program. These revisions to AQCR 709 addressing NSR. Source Review In Nonattalnment Areas revisions were to be submitted by June No public comments were received. 30, 1992, to meet the reqairements of AGENCY. Environmental Protection Following the public hearing the SIP section 173 of the Act forthe Agency (EPA). revision was adopted by the State and construction and operation of new and ACTION: Final rulemaldng. signed by the Governor on June 12, modified major stationary gouces of 1992. The SIP revision was received by PM-1O. Please reference section SUMMARY: This document approves a the EPA on July 2, 1992. 189(a)(1)(A) of the Act. By cover letter revision to the New Mexico tate The SIP revision was reviewed by the dated June 12, 1992, the Governor of Implementation Plan (SIP)to include EPA to determine completeness shortly New Mexico submitted to the EPA revisions to Air Quality Control revisions to AQCR 700, entitled Permits after its submittal, in accordance with Regulation (AQCR) 709, the existing the completeness criteria set out at 40 Nonattainment Areas, addressing NSR SIP-approved New Source Review CFR part 51, appendix V (1991). A letter in nonattainment areas in the State of (NSR) regulation for nonattainment dated Juy 29, 1902, was fkrwarded to New Mexico outside the boundaries of areas in t*9 State of New Mexico the Governor indicating the Indian Lands and Bernalillo County. outside the boundaries of Indian LaIs completeness of the submittal and the The revisions to AQCR 709 were filed and Bernalillo County. These revisions next steps to be taken in the review with the State Records and Archives were meade in response to the NSR Center on June 25, 1992. AQCR 709 was process. As noted in today's action, the requirements outlined in the Clean Air EPA is approving this New Mexico NSR initially approved by the EPA on June Act Arendients (CAAA) of 1990. SIP submittal. 4, 1990 (55 FR (FR) 22784). Ftrther DATES: This action will become effective revisions were approved on August 21, 2. Revisions to Nonattainment NSR on July 12, 1993 unless notice Is 1990 (55 FR 34013}, and on November Permit Program received within 30 days of publication 12, 1991 (56 FR 57492). The reader The State of Nw Mexico has revised that someone wishes to submit adverse should refer to the previously cited AQCR 709 in order to meet or critical comments. Federal Register notices for the requirements found in section 173 of the ADDRESSES: Written comments on this background information, history, and Act for the construction and operation action should be addressed to Mr. issues associated with this regulation. of new and modifted major stationary Thomas H. Diggs. Chief, Planning The current revisions to AQCR 709 sources of PM-t0. As referenced above, Section, at the EPA Regional Office discussed in this notice are listed below., Copies of the documents straightforward and minimal as outlined the State of Now Medco already has in place a Federally eaforceable regulation relevant to this proposed action are below. for nonettainmmt NSR (AQCR 709) available for public inspection during Analysis of State Submiusee Very few revisions to AQCR 709 were normal business hars at the following required to incorporate new locations. The interested persons 1. ProceduralBackground nonattainment NSR requirements wanting to examine these documents outlined in the CAAA of 1990. The The Act requires States to observe should make an appointment with the specific revisions to AQCR 709 wre certain procedural rquie mments In approp ate office at least twenty-four discassed below. developing Implementation plans for hors before the visiting day. The CAAA of 190 now requkies that submission to the EPA. Section U.S. Environmental Protection Agency, emission reductions obtained pursuant 110(aX2) of the Act provides that each Region 6, Air Programs Branch ESTto section 173(c)(1), pertaining to implementation plan submitted by a AP'). 1445 Ross Avenue, Suite 700. State msst be adopted afte reasonable Dallas, Tems 75202-2733 I Alm section 72(c(7) of t"e Act mq~uim that Mr. Jerry Kurtzweg (ANR-443), plan peovlsions for nonatalnmont mm meet the Environmental Protection Agency. applicable provision ofrSection 110(a)(2).

[FR Doc. 93-11163 Filed 5-11-93: 8:45 eam

20460 New Mexico Environment Department, Air Quality Bureau. 1190 St. Francis Drive, Room So. 2100. Santa Fe. New Mexico 87503 FOR FURTHER INFORMATION CONTAcT. Mr. Mark Sather, Planning Section (ST-AP), Air Programs Branch, U.S. EPA Region 6, 1445 Ross Avenue, Dallas, Texas

notice and public hearing.1 Section 110(0) of the Act similarly provides that each revision to an implementation plan submitted by a State under the Act must be adopted by such State after reasonable notice and public hearing. The EPA also must determine whether a submittal is complete and therefore warrants further EPA review and action (see Section 110(k)(1) and 57

75202-2733, Telephone (214) e55-7258.

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Federal Register/Vol. 66, No. 85/Wednesday, May 2, 2001/Rules and Regulations 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. Environment The Coast Guard has considered the environmental impact of this temporary regulation and concluded that, under Figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.1C, it will have no significant environmental impact and it is categorically excluded from further environmental documentation. A Categorical Exclusion Determination and Environmental Analysis Checklist will be available for inspection and copying in the docket to be maintained at the address listed in ADDRESSES. List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and record keeping requirements, Security measures, Waterways. Regulation 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 33 CFR Part 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.

21871

zone is prohibited unless authorized by the Captain of the Port or the Commanding Officer, Naval Base, San Diego. (d) The U.S. Navy may assist the U.S. Coast Guard in the patrol and enforcement of this security zone. Dated: April 6, 2001. S.P. Metruck,
Commander, U.S. Coast Guard, Captain of

employees and two concerned private individuals. Potential Changes to the Traditional Appeal Process We proposed to establish a new de nova review procedure that would be available to any claimant who files a Notice of Disagreement with a decision on a claim governed by 38 CFR part 3. We did not, and do not, intend the new de novo review procedure to change the procedures or rights involved with appealing such claims decisions to the Board of Veterans' Appeals. We intend it to be an additional, optional procedure to be conducted, if at all, between a claimant's filing a Notice of Disagreement and VA's issuance of a Statement of the Case. If de novo review under 3.2600 is not requested with the Notice of Disagreement or after the Notice of Disagreement is filed but within 60 days after VA mails notice of the right of such review to the claimant, then the appeal will proceed in accordance with the traditional appeal process. However, a claimant may not pursue de novo review and the traditional appeal simultaneously. A traditional appeal is suspended until de novu review is complete. Otherwise, there would be a risk of duplicative development and inconsistent decisions made in the same claim. Two commenters stated that the proposed regulations are unclear as to whether they change existing procedures regarding filing and processing of the Notice of Disagreement and the issuance of the Statement of the Case. The final rule does not modify the procedures of the traditional appeal process. To make this clear, we are amending the proposed rule in two respects. At the end of 3.2600(b), we are adding language that provides that if a claimant fails to timely request de novo review under 3.2600, VA will proceed with the traditional appellate process by issuing a Statement of the Case. For clarity, we are also adding a sentence to 3.2600(b) to preclude any extension of the time limit. Section 3.109(b) allows for a good cause extension of time limits within which a claimant is required to act to perfect a claim or challenge an adverse VA decision. Since the de novo review process is an optional procedure, not a required one, 3.109(b) does not apply to the period during which a claimant may request the de novo review process. Moreover, VA believes that a 60-day time limit, without the possibility of extension, is a reasonable amount of time for a claimant to decide whether to opt for the de novo review process.

the Port, San Diego. [FR Doc. 01-10712 Filed 5-1-01; 8:45 am]
BILLING CODE 4910-15-U

DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 3 RIN 2900-AJ99 Review of Benefit Claims Decisions AGENCY: Department of Veterans Affairs. ACTION: Final rule. SUMMARY: This document concerns the Department of Veterans Affairs' (VA) adjudication regulations. We are adding new provisions to allow any claimants who file a timely Notice of Disagreement to obtain a de novo review of their claims at the Veterans Service Center level before deciding whether to proceed with the traditional appeal process. This is intended to provide a more efficient means for resolving disagreements concerning claims. DATES: Effective Date: June 1, 2001. FOR FURTHER INFORMATION CONTACT: Bill Russo, Attorney-Advisor, Compensation and Pension Service, or John Bisset, Jr., Consultant, Compensation and Pension Service, Regulations Staff, Veterans Benefits Administration, 810 Vermont Avenue, NW., Washington, DC 20420, telephone (202) 273-7210 and (202) 273-7213, respectively. SUPPLEMENTARY INFORMATION: On February 18, 2000, VA published in the Federal Register (65 FR 8329-8330), a proposed rule which would establish provisions at 38 CFR 3.2600 to allow any claimants who file a timely Notice of Disagreement to obtain a de novo review (a new and complete review with no deference given to the decision being reviewed) by Veterans Service Center personnel before deciding whether to proceed with the traditional appeal process. We received written comments from American Veterans of WWII, Korea and Vietnam (AMVETS), Florida Department of Veterans' Affairs, National Organization of Veterans Advocates, Paralyzed Veterans of America, Veterans of Foreign Wars (Department of Maine), three VA

2. Add section 165.T11-036 to read as follows:

165.T11-036 Security Zone: San Diego

Bay, CA. (a) Location. The following area is a security zone: the water area within Naval Station, San Diego enclosed by the following points: Beginning at 32o41'16.5 " N, 117o08'01 " W (Point A); thence running southwesterly to 32o41'06" N, 117o08'09.3" W (Point B); thence running southeasterly along the U.S. Pierhead Line to 32o39'36.9 " N, 117o07"23.5" W (Point C); thence running easterly to 32o39'38.5" N, 117o07'06.5" W (Point D); thence running generally northwesterly along the shoreline of the Naval Station to the place of beginning. (b) Effective Dates. This temporary regulation is effective May 2, 2001 through October 29, 2001. (c) Regulations. In accordance with the general regulations in section 165.33 of this part, entry into the area of this

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21872

Federal Register/Vol. 66, No. 85/Wednesday, May 2, 2001/Rules and Regulations VA believes that there is no evidence that implementation of the de novo review process will increase the backlog of pending claims. In addition, VA believes that any increase in the backlog of pending claims which might occur as the de novo review program begins, will be offset by a greater long-term reduction in pending appeals. At the twelve VA Veterans Service Centers that have participated in the pilot test of the Decision Review Officer program since December 1997, there has been a significant decline in the number of substantive appeals filed. VA also believes that there will be no decline in the quality of VA decisions due to the de novo review program. There has been no such decline at the twelve pilot Service Centers. Moreover, decisions rendered under the de novo review process will be subject to VA Central Office oversight under VA's Systematic Technical Advisory Review (STAR), just like other Service Center decisions. VA believes there will be significant efficiency benefits gained through the de novo review program: We believe it will reduce the number of cases that go to the Board of Veterans' Appeals, which will in turn reduce the number of claims which must be readjudicated on remand from the Board of Veterans' Appeals. We therefore make no changes based on these comments. One commenter suggested that the Decision Review Officers should be placed outside the chain of command of the Veterans Service Center Manager and report directly to the Director of their VA Regional Office to ensure that the Decision Review Officer is independent. VA believes that it is not necessary to remove the Decision Review Officers from the chain of command of the Veterans Service Center Manager in order for them to function independently. Under the final rule, a Service Center Manager has no authority, other than the existing clear and unmistakable error authority under 3.105(a) or the difference of opinion authority under 3.105(b) (which must be approved by VA Central Office), to overturn a Decision Review Officer's decision. We therefore make no change based on this comment. This same commenter suggested that attorneys perform de novo reviews under 3.2600, since attorneys are most familiar with the statutes, regulations and adjudication manual provisions regarding veterans benefits. VA believes that other staff besides attorneys are qualified to serve as Decision Review Officers. For example, staff which are currently working as Hearing Officers or Master Rating Specialists have extensive knowledge of statutes, regulations and adjudication manual provisions regarding veterans benefits, and are well qualified to serve as Decision Review Officers. We therefore make no change based on this comment. Representation for Claimants Two commenters urged that the de novo review process include a claimant's duly appointed representative, and that the proposed 3.2600 be amended for that purpose. Nothing in this final rule excludes or discourages the participation of claimants' representatives. Furthermore, 3.103(e) states, "Subject to the provisions of 14.626 through 14.637 of this title [concerning recognition of veterans service organizations and accreditation of individual representatives], claimants are entitled to representation of their choice at every stage in the prosecution of a claim." Therefore, we believe that VA regulations make it clear that a claimant is allowed to have representation during this new review process, and we make no change based on these comments. Timing of VA Notice of Right to De Novo Review One commenter said that the proposed regulation fails to make it clear when the VA will send the claimant notice of the right to the de novo review. Based on this comment, we have specified in 3.2600(b) that VA will send the notice "upon receipt of the Notice of Disagreement." Timing of Claimant's Request for De Novo Review Two commenters said the proposed rule was unclear as to whether a request for a de novo review, filed at the same time as the Notice of Disagreement, would be considered valid. VA concurs. We have amended 3.2600(b) to provide that a claimant may request review under 3.2600 with his or her Notice of Disagreement or after the Notice of Disagreement is filed but not later than 60 days after VA mails notice of the right to de novo review. Time Limits for VA Action One commenter suggested that this rulemaking include a provision to require VA to respond to a Notice of Disagreement within 30 days. We believe the intent of the comment is to require, by regulation, that VA furnish notice of the right to a review under 3.2600 within 30 days of the receipt of the Notice of Disagreement. This

In addition, we are using the last sentence of the proposed 3.2600(b) to begin a new 3.2600(f). This new paragraph provides that review under 3.2600 does not limit the appeal rights of a claimant, and, if the claimant does not withdraw his or her Notice of Disagreement as a result of this review process, VA will proceed with the traditional appellate process by issuing a Statement of the Case. One commenter suggested that the proposed 3.2600 be amended to make clear that claimants who have filed a Notice of Disagreement may present additional evidence. This final rule does not modify existing procedures for submission of evidence. Under current regulations, any claimant may present additional evidence after filing a Notice of
Disagreement (38 CFR 19.37, 20.304 and

20.1304). Furthermore, 3.2600(c) allows the reviewer to obtain additional evidence. We therefore make no change based on this comment. Two commenters expressed concern that this rulemaking would limit the right of a claimant to have a hearing at some point following this new review process. This final rule doesn't place any limitations on existing rights: 38 CFR 3.103(c) states, "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, 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." In fact, proposed 3.2600(b) specified that review under 3.2600 "does not limit the appellate rights of a claimant." For these reasons, we make no change based on these comments. Management and Personnel Matters One commenter predicted that implementation of the de novo review process that VA proposed would increase the backlog of pending claims because VA would assign its most productive adjudicators to this new review process. This same commenter predicted that implementation of this review process will cause a decline in the quality of VA claims decisions, for this same reason, and because there would be insufficient oversight of decisions made during this review process. Another commenter expressed concern that no benefit would be gained from the de novo review process unless Veterans Service Centers are authorized to hire additional personnel to conduct the de novo review.

ADD-134

Federal Register/Vol. 66, No. 85/Wednesday, May 2, 2001/Rules and Regulations commenter felt that this would improve VA's accountability to claimants. VA believes that it would be inadvisable to set a deadline for VA to furnish this notice. Instances arise where VA must ask the claimant to clarify some aspect of the Notice of Disagreement. This would make it impracticable for VA to furnish the notice within a specified time period. We therefore make no change based on this comment. One commenter suggested that this rulemaking strictly limit the time VA has to conclude the de novo review, for example, within 30-60 days. We believe that it would be inadvisable to set time limits on the review process. Due to factors such as VA's workload or illness of the claimant, there may be unavoidable delays in scheduling an informal conference or obtaining additional relevant evidence. We therefore make no change based on this comment. Clear and Unmistakable Error One commenter stated the rulemaking is unclear as to whether the reviewer will have independent authority to revise decisions based on clear and unmistakable error, or whether the Veterans Service Center Manager must approve such decisions. Section 3.2600(e) clearly authorizes the reviewer to reverse or revise prior decisions based on clear and unmistakable error under 3.105(a) without obtaining the approval of any other VA official. We therefore make no change to 3.2600 based on this comment. However, VA has amended 3.104 to make clear that not only 3.105 but also new 3.2600 are valid bases for revision of decisions on the same factual basis as the initial decision by the agency of original jurisdiction. One commenter stated the rulemaking is unfair because it gives the reviewer authority to revise decisions based on clear and unmistakable error in a manner unfavorable to the claimant, without any prior notice to the claimant. This same commenter stated that the rulemaking should be amended to allow a claimant to obtain de novo review of a clear and unmistakable error. This commenter also stated that the potential for clear and unmistakable error review of prior, final decisions may be a disincentive to seeking a review under 3.2600. As stated in 3.2600(e), the reviewer will have the same clear and unmistakable error authority as any other VA adjudicator under 3.105(a). However, we note that 3.103(b) and 3.105(e) and (f) do already require advanced notice of proposed reductions or terminations of benefits. With respect to clear and unmistakable error claims filed by claimants, under 3.2600, if such claims are denied, the claimant may file a Notice of Disagreement, and will then be notified of his or her right to the de novo review process, just as with any other claim governed by 38 CFR part 3. The potential for clear and unmistakable error review is not unique to the de novo review process under 3.2600. It applies to any claim filed subsequent to a final VA decision. We therefore make no change based on this comment. Date of Implementation One commenter said that the proposed regulations fail to make it clear which claimants will be eligible for the de novo review (i.e. those with appeals pending on the effective date of the regulation, or those filing claims on or after the effective date). To clarify this issue, we have added to proposed 3.2600 a new paragraph (g), which states: "This section applies to all claims in which a Notice of Disagreement is filed on or after June 1, 2001." This will provide claimants with a date certain on which the de novo review will be available. We believe that including claims which are pending at various stages of the appellate process would be administratively difficult because the de novo review is designed to occur prior to the traditional appellate process. Other Comments One commenter suggested that VA conduct de novo review in every claim in which a Notice of Disagreement is filed, unless claimants specifically state they do not want to go through this review process. As was stated in proposed 3.2600(b), "This [de novo] review does not limit the appellate rights of a claimant." We believe the suggestion made by this commenter would interfere with the traditional appeal process by requiring claimants who want only the traditional process (and not the de novo process) to file an extra document which makes that statement. We also believe that the de novo review process should be optional for claimants, not mandatory. We therefore make no change based on this comment. One commenter suggested that a favorable decision resulting from the de novo review process need not contain a citation to the pertinent laws. We believe that requiring all decisions issued under the de novo review process to contain the items listed in 3.2600(d) will provide more consistent, uniform decisions. This will

21873

benefit both claimants and the Board of Veterans' Appeals (ifthe claim is ultimately appealed there). We therefore make no change based on this suggestion. One commenter urged that VA allow claimants whose cases have been remanded to the Veterans Service Center by the Board of Veterans' Appeals to obtain review under 3.2600 at that stage. Nothing in this final rule modifies the post-remand VA claims process. We note, however, that no existing regulations or policies prohibit a Veterans Service Center from assigning whatever staff they deem appropriate (including the Decision Review Officer) to review a case following a remand by the Board of Veterans' Appeals. Review by a Decision Review Officer following remand from the Board would not, however, be made under 3.2600 procedures because, as we stated above, the de novo review under 3.2600 is designed to occur prior to the traditional appellate process. We therefore make no change based on this suggestion. One commenter suggested that the proposed 3.2600 be revised to give the reviewer authority to grant entitlement to non-service connected pension on an extra-schedular basis under 38 CFR 3.321(b)(2). This final rule is not intended to modify the procedure or authority established by 3.321(b)(2), which authorizes only Adjudication Officers to grant pension on an extra-schedular basis if schedular percentage standards are not met. That procedure and authority is intended to function as a rare exception to the general requirement in 4.17 that a claimant must meet certain minimum disability rating percentage criteria to be entitled to pension benefits. VA believes that the Adjudication Officer (now called Veterans Service Center Manager in certain VA Regional Offices) is capable of deciding all such claims. We therefore make no change based on this comment. One commenter suggested that VA should discuss the applicability of the U.S. Court of Appeals for the Federal Circuit decisions in Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999), and Brown v. West, 203 F.3d 1378 (Fed. Cir. 2000), but did not elaborate. These cases have no applicability to the subject of this rulemaking, which is de novo review of certain appealed decisions, so we make no change based on this comment. We note, however, that the de novo review process will be available in any claim for which a Notice of Disagreement has been filed on or after the effective date of this

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21874

Federal Register/Vol. 66, No. 85/Wednesday, May 2, 2001/Rules and Regulations

Approved: February 15, 2001.

regulation, including claims for an earlier effective date (e.g., Hayre) and clear and unmistakable error (e.g., Brown). Finally, we are making one other change from the proposed rule. We proposed to add a new subpart D to part 3 and a new 3.2100, which would have governed the scope of applicability of provisions in subpart D. After the proposed rule was published, VA published another final rule that added subpart D and new 3.2100. Accordingly, we do not include either subpart D or 3.2100 in this final rule. Executive Order 12866 The Office of Management and Budget has reviewed this final rule under Executive Order 12866. PaperworkReduction Act This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3520). Unfunded Mandates The Unfunded Mandates Reform Act requires (in section 202) that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector of $100 million or more in any given year. This final rule will have no consequential effect on State, local, or tribal governments. Regulatory FlexibilityAct The Secretary hereby certifies that the adoption of this final rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. The final rule does not directly affect any small entities. Only VA beneficiaries are directly affected. Therefore, pursuant to 5 U.S.C. 605(b), these amendments are exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604. The Catalog of Federal Domestic Assistance 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 and procedure, Claims, Disability benefits, Health care, Pensions, Veterans, Vietnam.

Anthony J.Principi,
Secretaryof Veterans Affairs.

For the reasons set forth in the preamble, 38 CFR part 3 is amended as follows: PART 3-ADJUDICATION Subpart A-Pension, Compensation, and Dependency and Indemnity Compensation 1. The authority citation for part 3, subpart A continues to read as follows:
Authority: 38 U.S.C. 501(a), unless

otherwise noted.
3.104 Amended

2. In 3.104, paragraph (a), the second sentence 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 3. In Amended

3.105,

paragraph (b) is

amended by adding, as the last sentence, "However, a decision may be revised under 3.2600 without being recommended to Central Office." Subpart D-Universal Adjudication Rules That Apply to Benefit Claims Governed 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), unless

otherwise noted. 5. A new undesignated center heading and 3.2600 are added to subpart D to read as follows:
Revisions 3.2600 Review of benefit claims decisions.

(a) A claimant who has filed a timely Notice of Disagreement with a decision of an agency of original jurisdiction on a benefit claim has a right to a review of that decision under this section. The review will be conducted by an Adjudication Officer, Veterans Service Center Manager, or Decision Review Officer, at VA's discretion. An individual who did not participate in the decision being reviewed will conduct this review. Only a decision that has not yet become final (by appellate decision or failure to timely appeal) may be reviewed. Review under this section will encompass only decisions with which the claimant has expressed disagreement in the Notice of Disagreement. The reviewer will consider all evidence of record and applicable law, and will give no

deference to the decision being reviewed. (b) Unless the claimant has requested review under this section with his or her Notice of Disagreement, VA will, upon receipt of the Notice of Disagreement, notify the claimant in writing of his or her right to a review under this section. To obtain such a review, the claimant must request it not later than 60 days after the date VA mails the notice. This 60-day time limit may not be extended. If the claimant fails to request review under this section not later than 60 days after the date VA mails the notice, VA will proceed with the traditional appellate process by issuing a Statement of the Case. A claimant may not have more than one review under this section of the same decision. (c) The reviewer may conduct whatever development he or she considers necessary to resolve any disagreements in the Notice of Disagreement, consistent with applicable law. This may include an attempt to obtain additional evidence or the holding of an informal conference with the claimant. Upon the request of the claimant, the reviewer will conduct a hearing under 3.103(c). (d) The reviewer may grant a benefit sought in the claim notwithstanding 3.105(b), but, except as provided in paragraph (e) of this section, may not revise the decision in a manner that is less advantageous to the claimant than the decision under review. A review decision made under this section will include a summary of the evidence, a citation to pertinent laws, a discussion of how those laws affect the decision, and a summary of the reasons for the decision. (e) Notwithstanding any other provisions of this section, the reviewer may reverse or revise (even if disadvantageous to the claimant) prior decisions of an agency of original jurisdiction (including the decision being reviewed or any prior decision that has become final due to failure to timely appeal) on the grounds of clear and unmistakable error (see 3.105(a)). (f) Review under this section does not limit the appeal rights of a claimant. Unless a claimant withdraws his or her Notice of Disagreement as a result of this review process, VA will proceed with the traditional appellate process by issuing a Statement of the Case. (g) This section applies to all claims in which a Notice of Disagreement is filed 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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Federal Register/Vol. 76, No. 163/Tuesday, August 23, 2011/Rules and Regulations 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 Security Management Directive 023-01 and Commandant Instruction M16475.lD, 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 categorically excluded, 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 recordkeeping requirements, 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
m 1. The authority citation for part 165

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 "significant energy action" under that order because it is not a "significant regulatory action" under Executive Order 12866 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 significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.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., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

(2) All vessels must remain at least 150 feet from all drilling and blasting equipment; if a vessel must pass within 150 feet of drilling and blasting equipment for reasons of safety, they shall contact the dredge and/or blasting barge on Channel 13. (3) No vessel shall enter or transit any work 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 during blasting 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 Reporting System (VMRS) users are prohibited from meeting or overtaking other vessels when transiting alongside an active work area where dredging and drilling equipment are being operated. (7) Each vessel transiting in the vicinity of a work area where dredges are 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 impose additional requirements through VTS measures, 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 GuardDistrict,Acting.
[FR Doe. 2011-21460 Filed 8-22-11; 8:45 am]
BILLING CODE 9110-04-P

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 No. 0170.1.

DEPARTMENT OF VETERANS AFFAIRS 38 CFR Parts 3 and 20

RIN 2900-AO06

* 2. Add 165.TO1-0727 to read as follows: 165.TO1-0727 Regulated Navigation Area; 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 Gulfport Reach in the Arthur Kill; bounded in the northeast by a line drawn from position 400 38'48.637" N, 0740 09'18.204" W; to a point in position 40'38"37.815" N, 0740 09'20.245" W; and bounded in the southwest by a line drawn from position 400 37'15.643" N, 0740 12'15.927" W; to a point in position 400 37'15.779" N, 0740 12'08.0622" W. All geographic coordinates are North American Datum of 1983 (NAD 83). (b) Regulations. (1) The general regulations contained in 33 CFR 165.13 apply.

Rules Governing Hearings Before the Agency of Original Jurisdiction and the Board of Veterans' Appeals; Clarification
AGENCY: Department of Veterans Affairs. ACTION: Final rule.

SUMMARY: The Department of Veterans Affairs (VA) is amending its hearing regulations to clarify that the provisions regarding hearings before the Agency of Original Jurisdiction (AOJ) do not apply to hearings before the Board of Veterans' Appeals (Board). DATES: Effective Date: This rule is effective August 23, 2011.

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Federal Register/Vol. 76, No. 163/Tuesday, August 23, 2011/Rules and Regulations
FOR FURTHER INFORMATION CONTACT:

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Laura H. Eskenazi, Principal Deputy Vice Chairman, Board of Veterans' Appeals (012), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 461-8078. (This is not a toll-free number.) SUPPLEMENTARY INFORMATION: This document amends 38 CFR parts 3 and 20 to clarify existing hearing practices and procedures before the AOJ and the Board. Specifically, VA is amending 3.103(a) and (c) to clarify that the hearing procedures outlined in 3.103 apply to hearings held before the AOJ and not to hearings held before the Board. VA is also amending 20.706 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 governing Board hearing practice and procedure. In Appendix A to part 20, VA is removing the cross references to 3.103. VA has determined these clarifying changes are necessary because of a recent decision by the United States Court of Appeals for Veterans Claims (Court) in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that applied the provisions of 3.103(c)(2) to a Board hearing. The Bryant Court held that the provisions of 3.103(c)(2) require a "Board hearing officer" to "fully explain the issues still outstanding that are relevant and material to substantiating the claim" and to "suggest that a claimant submit evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record." Id. at 496-97. The Court concluded with respect to one of the service connection claims on appeal that the Veteran had been prejudiced because the presiding "Board hearing officer" had not explained matters material to the outcome of the claim and had not suggested that the Veteran could secure evidence regarding a nexus between his current disability and service. Id. at 499. The Court found prejudice existed because evidence of a nexus was not of record at the time of the hearing and remained lacking at the time of the decision. Id. In reaching its conclusions, the Court relied in part on its previous holding in Douglas v. Derwinski, 2 Vet. App. 435 (1992), which held that the provisions of 3.103(c) applied to hearings before the Board. Bryant, 23 Vet. App. at 494 (citing Douglas, 2 Vet. App. at 442). At the time the Court decided Douglas, the

Board's Rules of Practice provided that hearings on appeal could be held: "(a) [b]efore a section of the Board of Veterans' Appeals in Washington, DC[;] (b) * * * before a traveling section of the Board of Veterans' Appeals during regularly scheduled visits to [VA] facilities[;] [or] (c) [b]efore appropriate personnel in the [VA] regional or other office nearest the appellant's residence, acting as a hearing agency for the Board of Veterans' Appeals." 38 CFR 19.160 (1991). Under the former rules, if an appellant chose to have a hearing before employees of the AOJ acting as a hearing agency for the Board, then he or she was not entitled to a subsequent hearing before a Board Member. See id.; see also Veterans Benefits Administration, M21-1 Adjudication Procedures Manual, 18.17g (1991) ("A formal hearing on appeal at a regional office will be in lieu of such a hearing before the [Board], except in the unusual case in which a special appearance by the claimant before the [Board], or the special attention of an accredited organization's headquarters in Washington, DC, is requested by the appellant."). Not long after the Court decided Douglas, the Board amended its hearing regulations to terminate the practice of AOJ personnel holding appellate hearings on the Board's behalf. The final rulemaking noted that the Board was implementing these changes because it had decided "a clear demarcation should exist between the conduct of hearings by the Board and hearings conducted by [Veterans Benefits Administration] employees at regional offices." 58 FR 27934, 27934 (May 12, 1993). As a result of this procedural modification, an appellant now has the opportunity to appear for a hearing with the AOJ at any time prior to when his or her appeal is certified to the Board. 38 CFR 3.103(a); Your Rights to Appeal Our Decision, VA Form 4107 (Sept. 2009). The appellant also has a right to appear at a separate hearing on appeal before a Board Member. 38 CFR 20.700(a); see VA Form 4107 (stating that a hearing before the AOJ is separate from any hearing an appellant may later request before the Board); see also Gambill v. Shinseki, 576 F.3d 1307, 1315, 1316 (Fed. Cir. 2009) (Bryson, J., concurring) (explaining that an appellant has a right to appear at hearings before the AOJ and the Board). The 1993 regulatory changes reflected VA's intent to clearly distinguish hearings before AOJs from hearings before the Board, including the duties of the respective VA personnel conducting the hearing. As a result of these changes, it has become standard VA practice and

procedure that hearings before AOJs are governed by 3.103 and hearings before the Board are governed by relevant provisions in part 20. The Court's holding in Bryant brought to light that the pertinent regulations do not clearly reflect VA's intent. Therefore, VA has decided to make clarifying changes to 3.103 and 20.706 to ensure that the distinction between the duties of AOJ hearing officers and Board Members (also known as Veterans Law Judges (VLJs), see 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 governing hearings in 3.103 only apply to hearings conducted before the AOJ and that the provisions in part 20 govern hearings before the Board. VA is also removing the following language from 3.103(c)(1): "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." 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 "original determinative authority" 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 by presiding Board Members or VLJs is governed by subpart H of part 20 and that Board Members are not bound by the hearing provisions of 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 and conducting a hearing on a claim for VA benefits before the VA agency of original jurisdiction or the Board. It does not create new procedure, and no substantive change is intended. Accordingly, this document is being published as a final rule pursuant to 5 U.S.C. 553(b)(A), which excepts procedural rules from the APA's noticeand-comment and delayed effective date requirements. Paperwork Reduction Act This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

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Federal Register/Vol. 76, No. 163/Tuesday, August 23, 2011/Rules and Regulations
anticipated costs and benefits before issuing any rule that may result in an expenditure by State, local, and tribal governments, in the aggregate, or by the private sector of $100 million or more (adjusted annually for inflation) in any given year. This rule would have no such effect on State, local, and tribal governments, or on the private sector. Catalog of Federal Domestic Assistance Numbers and Titles The Catalog of Federal Domestic Assistance program numbers and titles for this rule are 64.100, Automobiles and Adaptive Equipment for Certain Disabled Veterans and Members of the Armed Forces; 64.101, Burial Expenses Allowance for Veterans; 64.102, Compensation for Service-Connected Deaths for Veterans' Dependents; 64.103, Life Insurance for Veterans; 64.104, Pension for Non-ServiceConnected Disability for Veterans; 64.105, Pension to Veterans Surviving Spouses, and Children; 64.106, Specially Adapted Housing for Disabled Veterans; 64.109, Veterans Compensation for Service-Connected Disability; 64.110, Veterans Dependency and Indemnity Compensation for Service-Connected Death; 64.114, Veterans Housing-Guaranteed and Insured Loans; 64.115, Veterans Information and Assistance; 64.116, Vocational Rehabilitation for Disabled Veterans; 64.117, Survivors and Dependents Educational Assistance; 64.118, Veterans Housing-Direct Loans for Certain Disabled Veterans; 64.119, Veterans Housing-Manufactured Home Loans; 64.120, Post-Vietnam Era Veterans' Educational Assistance; 64.124, All-Volunteer Force Educational Assistance; 64.125, Vocational and Educational Counseling for Servicemembers and Veterans; 64.126, Native American Veteran Direct Loan Program; 64.127, Monthly Allowance for Children of Vietnam Veterans Born with Spina Bifida; and 64.128, Vocational Training and Rehabilitation for Vietnam Veterans' Children with Spina Bifida or Other Covered Birth Defects. Signing Authority The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. John R. Gingrich, Chief of Staff, Department of Veterans Affairs, approved this document on August 16, 2011, for publication. List of Subjects
38 CFR Part3

Regulatory Flexibility Act The initial and final regulatory flexibility analysis requirements of sections 603 and 604 of the Regulatory Flexibility Act, 5 U.S.C. 601-612, are not applicable to this rule because a notice of proposed rulemaking is not required for this rule. Even so, the Secretary of Veterans Affairs hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This rule will affect only individual VA beneficiaries and will not directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604. Executive Order 12866-Regulatory Planning and Review Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Executive Order classifies a "significant regulatory action," requiring review by the Office of Management and Budget (OMB) unless OMB waives such review, as any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more, or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action planned or taken by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees or loan programs or the rights and obligations of recipients thereof, or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. VA has examined the economic, interagency, legal, and policy implications of this rulemaking and has concluded that it is not a significant regulatory action under the Executive Order. Unfunded Mandates The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of

Administrative practice and procedure, Claims, Disability benefits, Health care, Pensions, Radioactive materials, Veterans, Vietnam. 38 CFR Part20 Administrative practice and procedure, Claims, Veterans.
Dated: August 18, 2011.

Robert C. McFetridge,
Directorof Regulation Policyand Management,Office of the General Counsel, Departmentof Veterans Affairs.

For the reasons set forth in the preamble, VA amends 38 CFR parts 3 and 20 as follows: PART 3-ADJUDICATION Subpart A-Pension, Compensation, and Dependency and Indemnity Compensation
m 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: m 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 governing hearings apply only to hearings conducted before the VA office having original jurisdiction over the claim. Hearings before the Board of Veterans' Appeals are governed by part 20 of this chapter.
(c)
* * *

(1) Upon request, a claimant

is entitled to a hearing at any time on any issue involved in a claim within the purview of part 3 of this chapter. VA will provide the place of hearing in the VA office having original jurisdiction over the claim or at the VA office nearest the claimant's home having adjudicative functions, or, subject to available resources and solely at the option of VA, at any other VA facility or federal building at which suitable hearing facilities are available. VA will provide one or more employees of the VA office having original jurisdiction over the claim to conduct the hearing and to be responsible for establishment

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Federal Register/Vol. 76, No. 163/Tuesday, August 23, 2011/Rules and Regulations and preservation of the hearing record. Hearings in connection with proposed adverse actions and appeals shall be held before one or more employees of the VA office having original jurisdiction over the claim who did not participate in the proposed action or the decision being appealed. All expenses incurred by the claimant in connection with the hearing are the responsibility of the claimant. PART 20-BOARD OF VETERANS' APPEALS: RULES OF PRACTICE * 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. Sec.

52575

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 responsible for the conduct of the hearing, in accordance with the provisions of subpart H of this part, administering the oath or affirmation, and ruling on questions of procedure. The presiding Member will assure that the course of the hearing remains relevant to the issue, or issues, on appeal and that there is no cross-examination of the parties or witnesses. The presiding Member will take such steps as may be necessary to maintain good order at hearings and may terminate a hearing or direct that
Cross-reference

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 only apply to hearings before the agency of original jurisdiction. * 5. Amend APPENDIX A TO PART 20-CROSS-REFERENCES table by: m a. Removing entries "20.1"; "38 CFR 3.103(a)"; and "Statement of policy.". * b. Revising entry 20.1304 to read as follows: APPENDIX A TO PART 20-CROSSREFERENCES

Title of crossreferenced material or comment

20 .1304 .................................................

38 C FR 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

12, Bedford, MA 01730; (781) 687-3187 (this is not a toll free number).
SUPPLEMENTARY INFORMATION: The

DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 63 RIN 2900-AN73 Health Care for Homeless Veterans Program
AGENCY: ACTION:

Department of Veterans Affairs. Final rule.

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 policies and 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.
SUMMARY: FOR FURTHER INFORMATION CONTACT:

Robert Hallett, Healthcare for Homeless Veterans Manager, c/o Bedford VA Medical Center, 200 Springs Road, Bldg.

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 communitybased treatment facilities, including halfway houses)" to "veterans suffering from serious mental illness, including veterans who are homeless." One of VA's National priorities is a renewed effort to end homelessness for veterans. For this reason, we are establishing regulations 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 veterans who are homeless and suffering from serious mental illness or a substance use disorder. Many of the veterans for whom the HCHV program is designed have 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 communitybased 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 through this program because, based on our practical understanding and experience, the vast majority of homeless veterans have substance use disorders. Treating substance use as a mental disorder is consistent with the generally accepted "disease model" of alcoholism and drug addiction treatment, as well as the modern use of medical intervention to treat the condition. We believe that if a substance use disorder is a contributing cause of homelessness, 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 nonVA community-based provider. In some cases, VA will continue to actively medically manage the veteran's condition, while in other cases a VA clinician may determine that a veteran can be sufficiently managed through utilization of non-medical resources, such as 12-step programs. To provide the community-based care, 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

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ADD-142

ADD-143

ADD-144

ADD-145

ADD-146

ADD-147

ADD-148

ADD-149

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
must remain at

Civil

Justice Reform

This rule meets applicable standards 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
in sections

This rule does not use technical standards. Therefore, we did not consider the
use

(2) All vessels

150 feet from all

least

drilling

and

blasting

of

voluntary

consensus

standards.
Environment We have analyzed this rule under Department of Homeland Security Management Directive 02301 and

Protection of Children

equipment; if a vessel must pass within 150 feet of drilling and blasting equipment for reasons of safety, they shall contact the dredge andior blasting barge on Channel 13. (3) No vessel shall enter or transit any
area where drill barges and/or dredges are located without the permission of Vessel Traffic Service

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.
We have

analyzed

work

Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969

New York

(VTSNY)

Director.

(NEPA) (42 U.S.C. 43214370f), 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 categorically excluded, under figure 21, 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

No vessel may be underway within 1,500 feet of the blasting area during

(4)

blasting operations.
(5)
No vessel shall enter
or
an area

of

Indian Tribal Governments

This rule does not have tribal under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial

implications

direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes,
the distribution of power and between the Federal Government and Indian tribes.
or on

Subjects

in 33 CFR Part 165

responsibilities
Effects

Harbors, Marine safety, Navigation (water), Reporting and recordkeeping

blasting when they are advised by the drilling barge or VTSNY that a misfire or hang fire has occurred. (6) Vessel Movement Reporting System (VMRS) users are prohibited from meeting or overtaking other vessels when transiting alongside an active work area where dredging and drilling equipment are being operated. (7) Each vessel transiting in the vicinity of a work area where dredges are located is required to do so at reduced speed to maintain maneuverability while minimizing the drilling
effects of wake and surge. (8) The VTSNY Director may impose additional requirements through VTS measures, as per 33 CFR 161.11. (c) Effective Period. This rule is

Energy

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That

requirements, Security Waterways.

For the
reasons

measures,

Significantly
Distribution,

Affect
or

Energy Supply,

discussed in the the Coast Guard amends 33 CFR part 165 as follows:

preamble,

Use. We have

determined that it is not a significant energy action under that order because
it is not
a

PART 165REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

effective from 8 a.m. on August 12, 2011 until 5 p.m. on April 1, 2014.
Dated: 12 Aug J.B. McPherson,
2011.

significant regulatory

action

1. The

authority
33

citation for
as

part

165

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 significant energy action. Therefore, it does not

continues to read

follows:

Captain,
FR Doc.

U.S. Coast Guard, Commander, First

U.S.C. 1226, 1231; 46 U.s.c. Authority~ Chapter 701, 3306, 3703; 50 U.s.c. 191, 195; 33 CFR 1.051, 6.041, 6.046. 160.5; Pub. L. 107295, 116 Stat. 2064; Department of Homeland

Coast Guard District,

Acting.
am]

201121460 Filed 822li; 8:45

BILUNO CODE 9110-04P

Security Delegation

tIo. 0170.1.
as

2. Add

require

Statement of Energy Effects under Executive Order13211.

a

165.T010727 to read

DEPARTMENT OF VETERANS
AFFAIRS 38 CFR Parts 3 and 20
RIN 2900-A006

follows:

Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency

1 65.TO10727 Regulated Navigation Area; 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,
and Gulfport Reach in the Arthur Kill; bounded in the northeast by a line drawn from position 400 3848.637 N, 074 0918.204 W; to a point in position 403837.815 N, 074 0920.245 W; and bounded in the southwest by a line drawn from position 40 3715.643 N, 0740 1215.927 W; to a point in position 40 3715.779 N, 074 1208.0622 W. All geographic coordinates are North American Datum of 1983 (NAD 83).

Rules Governing Hearings Before the Agency of Original Jurisdiction and the Board of Veterans
Clarification
AGENCY:

Elizabethport Reach,

Appeals;
of Veterans Affairs.

provides Congress, through the Office Management and Budget, with an explanation of why using these

of

Department
Final rule.
The

ACTION:

standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or

SUMMARY:

operation; test methods; sampling procedures; and related management systems practices) that are developed adopted by voluntary consensus
standards bodies.

Department of Veterans amending its hearing regulations to clarify that the provisions regarding hearings before the Agency of Original Jurisdiction (AOJ) do not apply
Affairs

(VA)

is

or

(b) Regulations.

(1) The general regulations contained

in 33 CFR 165.13

hearings before the Board of Veterans Appeals (Board). DATES: Effective Date: This rule is
to

apply.

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 Deputy Vice Chairman, Board of Veterans

Boards Rules of Practice provided that hearings on appeal could be held: (a) b]efore a section of the Board of
Veterans

Appeals (012), Department

Affairs,
810 Vermont

of Veterans

Appeals

in

Washington, C;j

Avenue, NW.,

Washington~
(This is
not a

DC 20420, (202) 4618078. toll-free number.) This

before a traveling section of the Board of Veterans Appeals during regularly scheduled visits to VA]

(jj)

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 Courts holding in Bryant brought to light that the pertinent regulations do not clearly
reflect VAs intent. Therefore, VA has decided to make clarifying changes to ~ 3.103 and 20.706 to ensure that the distinction between the duties of AOJ hearing officers and Board Members (also known as Veterans Law Judges

SUPPLEMENTARY INFORMATION:

document amends 38 CFR parts 3 and

20 to

clarify existing hearing practices

acilities;l on (c) blefore appropriate personnel in the VA] regional or other office nearest the appellants residence,

and 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 AOJ and not to hearings held before the Board. VA is also amending 2 0.706 to further clarify that Board Members

hearing agency for the Board of Veterans Appeals. 38 CFR 19.160

acting
as a

(1991). Under the former rules, if an

appellant chose to have a hearing before employees of the AOJ acting as a hearing agency for the Board, then he or she was not entitled to a subsequent hearing before a Board Member. See Id.;
see

(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)

that the

to

clarify

presiding
not

over a

hearing

on

appeal

also Veterans Benefits

are

bound

by

the

3.103(c) and

must conduct

hearing procedures in hearings in

Administration, M211 Adjudication Procedures Manual, 18.17g (1991) (A

formal hearing on appeal at a regional office will be in lieu of such a hearing before the Board], except in the unusual case in which a special appearance by the claimant before the (Boardj, or the special attention of an accredited organizations headquarters in Washington, DC, is requested by the

accordance with part 20, subpart H, which contains provisions governing Board hearing practice and procedure.
A to part 20, VA is the cross references to 3.103. VA has determined these clarifying changes are necessary because of a recent decision by the United States Court of Appeals for Veterans Claims In

Appendix

hearings in hearings conducted before the AOJ and that the provisions in part 20 govern hearings before the Board. VA is also removing the following language from 3.103(c)(1): 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. This language is not necessary since the

provisions governing 3.103 only apply to

removing

(Court) in Biyant v. Shinseki, 23 Vet. App. 488 (2010), that applied the provisions of 3.103(c)(2) to a Board
The Biyant Court held that the provisions of 3.103(c)(2) require a Board hearing officer to fully explain the issues still outstanding that are relevant and material to substantiating

hearing.

appellant.). Not long after the Court decided Douglas, the Board amended its hearing regulations to terminate the practice of AOJ personnel holding appellate hearings on the Boards behalf. The final rulemaking noted that the Board was implementing these changes because it
had decided a clear demarcation should exist between the conduct of hearings by the Board and hearings conducted by Veterans Benefits

paragraph (a) clarifies that apply to Board hearings. VA is also revising paragraph (c)(1) to change references to original
revision tO

3.103 does not

determinative.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 by presiding Board Members or VLJs is governed by subpart H of part 20 and that Board Members are not bound by the hearing provisions of 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.

the claim and to suggest that a claimant submit evidence on an issue material to substantiating the claim

when the record is missing any evidence on that issue or when the

Administration] employees

at

regional

testimony at the hearing raises an issue for which there is no evidence in the record. Id. at 49697. The Court concluded with respect to one of the service connection claims on appeal that the Veteran had been prejudiced because the presiding Board hearing officer had not explained matters material to the outcome of the claim and had not suggested that the Veteran could secure evidence regarding a nexus between his current disability and service. Id. at 499. The Court found prejudice existed because evidence of a nexus was not of record at the time of the hearing and remained lacking at the time of the decision. Id. In reaching its conclusions, the Court relied in part on its previous holding in

offices. 58 FR 27934, 27934 (May 12, 1993). As a result of this procedural modification, an appellant now has the opportunity to appear for a hearing with the AOJ at any time prior to when his or her appeal is certified to the Board. 38 CFR 3.103(a); Your Rights to Appeal Our Decision, VA Form 4107 (Sept. 2009). The appellant also has a right to
appear at a separate hearing on appeal before a Board Member. 38 CFR
20.

Administrative Procedure Act

700(a);

see

VA Form 4107

(stating

that a hearing before the AOJ is separate from any hearing an appellant may later request before the Board); see also Gambill v. Shinseki, 576 F.3d 1307, 1315, 1316 (Fed. Cir. 2009) (Bryson, J., concurring) (explaining that an appellant has a right to appear at hearings before the AOJ and the Board). The 1993 regulatory changes reflected

merely clarifies procedures for obtaining and conducting a hearing on a claim for VA benefits before the VA agency of original jurisdiction or the Board. It does not create new procedure, and no substantive change is intended. Accordingly, this document is being published as a final rule pursuant to 5
current

This document

U.S.C.

553(b)(A), which excepts

roles from the APAs noticedelayed effective date

procedural

and-comment and

requirements.

Douglas
of

v.

Deiwinski,

2 Vet.

App.

435

(1992), which held that the provisions 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

clearly distinguish hearings before AOJs from hearings before the Board, including the duties of the respective VA personnel conducting the hearing. As a result of these changes, it has become standard VA practice and

VAs intent to

Paperwork Reduction

Act

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44
U.S.C. 35013521).

APP-2

52574

Federal

Register/Vol.
Act

76, No.

163/Tuesday, August

23, 2011/Rules and

List of

Regulations

Regulatory Flexibility
The initial and final

regulatory flexibility analysis requirements of sections 603 and 604 of the Regulatory Flexibility Act, 5 U.s.c. 601612, are

applicable to this rule because a notice of proposed rulemaking is not required for this rule. Even so, the Secretary of Veterans Affairs hereby
not

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

Subjects

38 CFR Part 3

Administrative practice and procedure, Claims, Disability benefits,

Health care, Pensions, Radioactive materials, Veterans, Vietnam.
38 CFR Part 20

State, local,.and tribal

or on

governments,

the

private

sector.

certifies that this final rule will not have

significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601612. This rule will affect only individual VA beneficiaries and will not directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.
a

of Federal Domestic Assistance Numbers and Titles

Catalog

Administrative practice and procedure, Claims, Veterans.

Dated:

August 18,

2011.

Planning
agencies

Executive Order 12866Regulatory and Review Executive Order 12866 directs to assess all costs and benefits

of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Executive Order classifies a significant regulatory action, requiring review by the Office of Management and Budget (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 $100 million or more, or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal

The Catalog of Federal Domestic Assistance program numbers and titles for this rule are 64.100, Automobiles and Adaptive Equipment for Certain Disabled Veterans and Members of the Armed Forces; 64.101, Burial Expenses Allowance for Veterans; 64.102, Compensation for Service-Connected Deaths for Veterans Dependents; 64.103, Life Insurance for Veterans; 64.104, Pension for Non-ServiceConnected Disability for Veterans; 64.105, Pension to Veterans Surviving Spouses, and Children; 64.106, Specially Adapted Housing for Disabled

McFetridgo, Dire ctorof Regulation Policy and Management, Office of the General Counsel, Department of Veterans Affairs.
For the
reasons

Robert C.

preamble,
and 20
as

set forth in the VA amends 38 CFR parts 3 follows:

PART 3ADJUDICATION

and

Subpart APension, Compensation, Dependency and Indemnity Compensation

The

1.

authority citation

for part 3,
as

Veterans; 64.109, Veterans

subpart

A continues to read

follows:

Compensation Disability; 64.110, Veterans Dependency and Indemnity Compensation for

Service-Connected Death; 64.114, Veterans HousingGuaranteed 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 HousingDirect Loans for Certain Disabled Veterans; 64.119,
Veterans

for Service-Connected

Authority: 38 U.S.C. otherwise noted.

2. a.

501(a), unless

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

sentence after the last sentence.

3.103 Procedural appellate rights.

HousingManufactured

Home

Loans; 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.

(a) * * * The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3, except that the provisions of this section governing

hearings apply only

to

hearings

governments
a

or

communities; (2)
or

create

conducted before the VA office

serious

inconsistency

otherwise

interfere with an action planned or taken by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees or loan programs or the rights and obligations of recipients thereof, or (4) raise novel legal or policy issues arising out of legal mandates, the Presidents priorities, or the principles set forth in the Executive Order. VA has examined the economic, interagency, legal, and policy implications of this rulemaking and has concluded that it is not a significant regulatory action under the Executive Order.
Unfunded Mandates

having original jurisdiction over the claim. Hearings before the Board of Veterans Appeals are governed by part 20 of this chapt:r.
~

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

a claimant is entitled to a hearing at any time on any issue involved in a claim within the purview of part 3 of this chapter. VA will provide the place of hearing in the VA office having original jurisdiction over the claim or at the VA office
*

(c)

(1) Upon request,

having subject to available resources and solely at the option of VA, at any other VA facility
adjudicative functions,
or,

nearest the

claimants home

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of

publication.

federal building at which suitable hearing facilities are available. VA will provide one or more employees of the VA office having original jurisdiction over the claim to conduct the hearing and to be responsible for establishment
or

APP-3

Federal

Register/Vol.

76, No.

163/Tuesday, August
on

23, 2011/Rules and

the
an

Regulations

52575

and

preservation

Hearings

of the hearing record. in connection with proposed

Subpart HHearings
4.

Appeal
as

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

Revise

20. 706 to read

follows:

20.706 Rule 706. Functions presiding Member.

of the

PART 20BOARD OF VETERANS

APPEALS: RULES OF PRACTICE

3. The

authority citation
as

continues to read
in

for part 20 follows:

and
as

Authority: 38 U.s.c. 501(a) specific sections.

noted

The presiding Member is responsible for the conduct of the hearing, in accordance with the provisions of subpart H of this part, administering the oath or affirmation, and ruling on questions of procedure. The presiding Member will assure that the course of the hearing remains relevant to the issue, or issues, on appeal and that there is no cross-examination of the parties or witnesses. The presiding Member will take such steps as may be necessary to maintain good order at hearings and may terminate a hearing or direct that

offending party leave the hearing if 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 only apply to hearings before the agency of original jurisdiction.
5.

Amend APPENDIX A TO PART

20CROSS-REFERENCES table
a.

by:

Removingentries 20.1;38CFR 3.103(a); and Statement of policy.. b. Revising entry 20.1304 to read as
follows:
APPENDIX A TO PART 20CROSS-

REFERENCES

Sec.

Cross-reference

Title of crossreferenced material

or

comment

20.1304

38 CFR 20.70020.717

See also

rehearings.

IFR Dcc.

201121513 FIled 82211; 8:45

aznl

BILUNG CODE 8320-01P

12, Bedford, MA 01730; (781) 6873187 (this is not a toll free number).
SUPPLEMENTARY INFORMATION:

with substance use disorders through this program because, based on our

DEPARTMENT OF VETERANS AFFAIRS 38CFR Part 63

The HCHV program is authorized by 38 U.S.C. 2031, under which VA may

practical understanding and experience, the vast majority of homeless veterans have substance use disorders. Treating
substance use as a mental disorder is consistent with the generally accepted disease model of alcoholism and drUg addiction treatment, as well as the modern use of medical intervention to treat the condition. We believe that if a substance use disorder is a contributing cause 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 nonVA
cases,

as well as care, treatment, and rehabilitative services (directly or by contract in communitybased treatment facilities, including

provide

outreach

RUN 2900-AN73

halfway houses)

to veterans

suffering

Health Care for Homeless Veterans

Program
AGENCY: ACTION:

Department
Final rule.

of Veterans Affairs.

SUMMARY:

This final rule establishes

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

regulations for contracting with community-based treatment facilities

community-based providers.

The final rule formalizes VAs policies and procedures in connection with this program and clarifies that veterans with substance use disorders may qualify for the program;
DATES:

from serious mental illness, including veterans who are homeless. One of VAs National priorities is a renewed effort to end homelessness for veterans. For this reason, we are establishing regulations 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 designed have not previously used VA medical services or been enrolled in the VA health care system.
the HCHV program, VA identifies homeless veterans with serious mental illness and/or substance

community-based provider. In some VA will continue to actively

manage the veterans
cases a

medically

condition, while in other

VA

Through

clinician may determine that a veteran can be sufficiently managed through

Effective

Date:

September

22,

2011.
FOR FURTHER INFORMATION CONTACT:

disorder, usually through medical intervention, and offers communityuse

utilization of non-medical resources, such as 12-step programs.

To
care,

based
are

care

to

those whose conditions

provide the community-based the HCHV program contracts with community-based providers,

Robert Hallett, Healthcare for Homeless Veterans Manager, c/o Bedford VA. Medical Center, 200 Springs Road, Bldg.

determined, clinically, to be managed sufficiently that the individuals can participate in such

non-VA

care.

We have assisted homeless veterans

such as halfway houses, to provide to these veterans housing and mental health and/or substance use disorder

APP-4

APP-5

APP-6