cfr_sections
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125 rows where part_number = 20 and title_number = 38 sorted by section_id
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| section_id ▼ | title_number | title_name | chapter | subchapter | part_number | part_name | subpart | subpart_name | section_number | section_heading | agency | authority | source_citation | amendment_citations | full_text |
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 38:38:2.0.1.1.5.1.35.1 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | A | Subpart A—General | § 20.1 Rule 1. Purpose and construction of Rules of Practice. | VA | [57 FR 4109, Feb. 3, 1992, as amended at 84 FR 179, Jan. 18, 2019] | (a) Purpose. These rules establish the practices and procedures governing appeals to the Board of Veterans' Appeals (Board). (b) Construction. These rules are to be construed to secure a just and speedy decision in every appeal. | ||||
| 38:38:2.0.1.1.5.1.35.2 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | A | Subpart A—General | § 20.2 Rule 2. Procedure in absence of specific Rule of Practice. | VA | 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. | |||||
| 38:38:2.0.1.1.5.1.35.3 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | A | Subpart A—General | § 20.3 Rule 3. Definitions. | VA | [57 FR 4109, Feb. 3, 1992, as amended at 61 FR 20449, May 7, 1996; 67 FR 36104, May 23, 2002; 69 FR 53808, Sept. 3, 2004; 79 FR 57698, Sept. 25, 2014; 84 FR 179, Jan. 18, 2019] | As used in these Rules: (a) Agency of original jurisdiction means the Department of Veterans Affairs activity or administration, that is, the Veterans Benefits Administration, Veterans Health Administration, or National Cemetery Administration, that made the initial determination on a claim. (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 § 14.631 of this chapter. It does not include representatives accredited under § 14.629(a) of this chapter, attorneys accredited under § 14.629(b) of this chapter, or a person authorized to represent a claimant for a particular claim under § 14.630 of this chapter. (c) Appellant means a claimant who has filed an appeal to the Board of Veterans' Appeals either as a legacy appeal or in the modernized review system, as those terms are defined in § 19.2 of this chapter, and Rule 4 (§ 20.4 of this part), respectively. (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 a written communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by the Department of Veterans Affairs submitted on an application form prescribed by the Secretary. (g) Claimant means a person who has filed a claim, as defined by paragraph (f) of this section. (h) Hearing on appeal or Board hearing means a hearing conducted after a Notice of Disagreement has been filed in which testimony is presented concerning the determination, or determinations, by the agency of original jurisdiction being appealed. (i) Motion means a request that the Board rule on some question which is subsidiary to the ultimate decision… | ||||
| 38:38:2.0.1.1.5.1.35.4 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | A | Subpart A—General | § 20.4 Rule 4. Appeal systems definitions and applicability provisions. | VA | [84 FR 180, Jan. 18, 2019] | (a) Appeal —(1) In general. An appeal consists of a Notice of Disagreement timely filed to the Board on any issue or issues for which VA provided notice of a decision under 38 U.S.C. 5104 on or after the effective date, as defined in § 19.2(a) of this chapter. (2) Appellant's election for review of a legacy claim or appeal in the modernized review system. The regulations applicable to appeals are also applicable to legacy claims and appeals, as those terms are defined in §§ 3.2400(b) and 19.2(c) of this chapter, where the claimant elects the modernized review system pursuant to § 19.2(d) of this chapter, and upon the timely filing to the Board of a Notice of Disagreement. (b) Applicability of parts 19 and 20 —(1) Appeals. Subparts C, D, E, and I of part 20 apply only to the processing and adjudication of appeals in the modernized review system. (2) Legacy claims and appeals. Part 19 and subparts F, G, and J of part 20 apply only to the processing and adjudication of legacy claims and appeals. (3) Both appeals systems. Except as otherwise provided in specific sections, subparts A, B, H, K, L, M, N, and O of part 20 apply to the processing and adjudication of both appeals and legacy claims and appeals. | ||||
| 38:38:2.0.1.1.5.1.35.5 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | A | Subpart A—General | § 20.5 Rule 5. Right to representation. | VA | [57 FR 4104, Feb. 3, 1992. Redesignated and amended at 84 FR 184, Jan. 18, 2019] | 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. | ||||
| 38:38:2.0.1.1.5.1.35.6 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | A | Subpart A—General | § 20.6 Rule 6. Withdrawal of services by a representative. | VA | [84 FR 184, Jan. 18, 2019, as amended at 84 FR 4337, Feb. 15, 2019] | (a)(1) Applicability. The restrictions on a representative's right to withdraw contained in this paragraph apply only to those cases in which the representative has previously agreed to act as representative in an appeal. In addition to express agreement, orally or in writing, such agreement shall be presumed if the representative makes an appearance in the case by acting on an appellant's behalf before the Board in any way after the appellant has designated the representative as such as provided in § 14.630 or § 14.631 of this chapter. The preceding sentence notwithstanding, an appearance in an appeal solely to notify the Board that a designation of representation has not been accepted will not be presumed to constitute such consent. (2) Procedures. Except as otherwise provided in paragraph (b) of this section, after an appeal to the Board of Veterans' Appeals has been filed, a representative may not withdraw services as representative in the appeal unless good cause is shown on motion. Good cause for such purposes is the extended illness or incapacitation of an agent admitted to practice before the Department of Veterans Affairs, an attorney-at-law, or other individual representative; failure of the appellant to cooperate with proper preparation and presentation of the appeal; or other factors which make the continuation of representation impossible, impractical, or unethical. Such motions must be in writing and must include the name of the veteran, the name of the claimant or appellant if other than the veteran ( e.g., a veteran's survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual's behalf), the applicable Department of Veterans Affairs file number, and the reason why withdrawal should be permitted, and a signed statement certifying that a copy of the motion was sent by first-class mail, postage prepaid, to the appellant, setting forth the address to which the copy was mailed. Such motions should not contain information which would violate privileged communications or … | ||||
| 38:38:2.0.1.1.5.1.35.7 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | A | Subpart A—General | §§ 20.7-20.99 [Reserved] | VA | ||||||
| 38:38:2.0.1.1.5.10.35.1 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | J | Subpart J—Action by the Board in Legacy Appeals | § 20.900 Rule 900. Applicability. | VA | [84 FR 190, Jan. 18, 2019] | The provisions in this subpart apply to Board decisions and remands rendered in legacy appeals, as defined in § 19.2 of this chapter. | ||||
| 38:38:2.0.1.1.5.10.35.10 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | J | Subpart J—Action by the Board in Legacy Appeals | §§ 20.909-20.999 [Reserved] | VA | ||||||
| 38:38:2.0.1.1.5.10.35.2 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | J | Subpart J—Action by the Board in Legacy Appeals | § 20.901 Rule 901. Submission of additional evidence after initiation of appeal. | VA | [57 FR 4109, Feb. 3, 1992, as amended at 73 FR 29879, May 22, 2008. Redesignated and amended at 84 FR 188, 190, Jan. 18, 2019; 84 FR 4337, Feb. 15, 2019] | 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. The provisions of this section 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. | ||||
| 38:38:2.0.1.1.5.10.35.3 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | J | Subpart J—Action by the Board in Legacy Appeals | § 20.902 Rule 902. Order of consideration of appeals. | VA | [57 FR 4109, Feb. 3, 1992, as amended at 60 FR 51923, Oct. 4, 1995; 61 FR 20453, May 7, 1996; 65 FR 14472, Mar. 17, 2000; 68 FR 53683, Sept. 12, 2003; 79 FR 52984, Sept. 5, 2014; 81 FR 32650, May 24, 2016. Redesignated and amended at 84 FR 190, Jan. 18, 2019] | (a) Docketing of appeals. Applications for review on appeal are docketed in the order in which they are received. (1) A case returned to the Board following action pursuant to a remand assumes its original place on the docket. (2) A case returned to the Board following the grant of a substitution request or pursuant to an appeal of a denial of a substitution request assumes the same place on the docket held by the deceased appellant at the time of his or her death. Pursuant to paragraph (c) of this section, if the deceased appellant's case was advanced on the docket prior to his or her death, the substitute will receive the benefit of the advanced placement. (b) Appeals considered in docket order. Except as otherwise provided in this Rule, appeals are considered in the order in which they are entered on the docket. (c) Advancement on the docket —(1) Grounds for advancement. A case may be advanced on the docket on the motion of the Chairman, the Vice Chairman, a party to the case before the Board, or such party's representative. Such a motion may be granted only if the case involves interpretation of law of general application affecting other claims, if the appellant is seriously ill or is under severe financial hardship, or if other sufficient cause is shown. “Other sufficient cause” shall include, but is not limited to, administrative error resulting in a significant delay in docketing the case, administrative necessity, or the advanced age of the appellant. For purposes of this Rule, “advanced age” is defined as 75 or more years of age. This paragraph does not require the Board to advance a case on the docket in the absence of a motion of a party to the case or the party's representative. (2) Requirements for motions. Motions for advancement on the docket must be in writing and must identify the specific reason(s) why advancement on the docket is sought, the name of the veteran, the name of the appellant if other than the veteran (e.g., a veteran's survivor, a guardian, a substitute appellant, or … | ||||
| 38:38:2.0.1.1.5.10.35.4 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | J | Subpart J—Action by the Board in Legacy Appeals | § 20.903 Rule 903. The decision. | VA | [57 FR 4104, Feb. 3, 1992, as amended at 61 FR 20449, May 7, 1996. Redesignated at 84 FR 177, Jan. 18, 2019, as amended at 84 FR 4337, Feb. 15, 2019] | (a) Decisions based on 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. (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 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. (c) A decision by a panel of Members will be by a majority vote of the panel Members. | ||||
| 38:38:2.0.1.1.5.10.35.5 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | J | Subpart J—Action by the Board in Legacy Appeals | § 20.904 Rule 904. Remand or referral for further action. | VA | [67 FR 3104, Jan. 23, 2002, as amended at 69 FR 53808, Sept. 3, 2004; 76 FR 17547, Mar. 30, 2011. Redesignated at 84 FR 177, Jan. 18, 2019, as amended at 84 FR 4337, Feb. 15, 2019; 84 FR 34788, July 19, 2019] | (a) Remand. If further evidence, clarification of the evidence, correction of a procedural defect, or any other action is essential for a proper appellate decision, a Veterans Law Judge or panel of Veterans Law Judges shall remand the case to the agency of original jurisdiction, specifying the action to be undertaken. (b) Referral. The Board shall refer to the agency of original jurisdiction for appropriate consideration and handling in the first instance all claims reasonably raised by the record that have not been initially adjudicated by the agency of original jurisdiction, except for claims over which the Board has original jurisdiction. (c) Remand for a Statement of the Case. In cases before the Board in which a claimant has timely filed a Notice of Disagreement with a determination of the agency of original jurisdiction on a claim, but the record reflects that the agency of original jurisdiction has not subsequently granted the claim in full and has not furnished the claimant with a Statement of the Case, the Board shall remand the claim to the agency of original jurisdiction with instructions to prepare and issue a Statement of the Case in accordance with the provisions of part 19, subpart B of this chapter. A remand for a Statement of the Case is not required if the claimant, consistent with the withdrawal requirements of § 19.55 of this chapter, withdraws the Notice of Disagreement. (d) Exceptions. A remand or referral to the agency of original jurisdiction is not necessary for any of the following purposes: (1) Clarifying a procedural matter before the Board, including the appellant's choice of representative before the Board, the issues on appeal, or requests for a hearing before the Board; (2) Considering law not already considered by the agency of original jurisdiction, including, but not limited to, statutes, regulations, and court decisions; (3) Reviewing additional evidence received by the Board, if, pursuant to Rule 1305 (§ 20.1305(c) of this part), the appellant or the appellant's … | ||||
| 38:38:2.0.1.1.5.10.35.6 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | J | Subpart J—Action by the Board in Legacy Appeals | § 20.905 Rule 905. Content of Board decision, remand, or order in simultaneously contested claims. | VA | [61 FR 68666, Dec. 30, 1996. Redesignated at 84 FR 177, Jan. 18, 2019, as amended at 84 FR 4337, Feb. 15, 2019] | The content of the Board's decision, remand, or order in appeals involving a simultaneously contested claim will be limited to information that directly affects the issues involved in the contested claim. Appellate issues that do not involve all of the contesting parties will be addressed in one or more separate written decisions, remands, or orders that will be furnished only to the appellants concerned and their representatives, if any. | ||||
| 38:38:2.0.1.1.5.10.35.7 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | J | Subpart J—Action by the Board in Legacy Appeals | § 20.906 Rule 906. Medical opinions and opinions of the General Counsel. | VA | [57 FR 4109, Feb. 3, 1992, as amended at 61 FR 20453, May 7, 1996; 66 FR 38159, July 23, 2001; 69 FR 19937, Apr. 15, 2004. Redesignated and amended at 84 FR 188, 190, Jan. 18, 2019; 84 FR 34788, July 19, 2019] | (a) Opinion from the Veterans Health Administration. The Board may obtain a medical opinion from an appropriate health care professional in 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. (b) Joint Pathology Center opinions. The Board may refer pathologic material to the Joint Pathology Center and request an opinion based on that material. (c) Opinion of the General Counsel. 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. (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. (e) For purposes of this section, the term “the Board” includes the Chairman, the Vice Chairman, any Deputy Vice Chairman, and any Member of the Board before whom a case is pending. | ||||
| 38:38:2.0.1.1.5.10.35.8 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | J | Subpart J—Action by the Board in Legacy Appeals | § 20.907 Rule 907. Filing of requests for the procurement of opinions. | VA | [57 FR 4109, Feb. 3, 1992. Redesignated and amended at 84 FR 188, 190, Jan. 18, 2019] | The appellant or representative may request that the Board obtain an opinion under Rule 906 (§ 20.906). The request must be in writing. It will be granted upon a showing of good cause, such as the identification of a complex or controversial medical or legal issue involved in the appeal which warrants such an opinion. | ||||
| 38:38:2.0.1.1.5.10.35.9 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | J | Subpart J—Action by the Board in Legacy Appeals | § 20.908 Rule 908. Notification of evidence to be considered by the Board and opportunity for response. | VA | [67 FR 3105, Jan. 23, 2002, as amended at 69 FR 53808, Sept. 3, 2004; 76 FR 17548, Mar. 30, 2011. Redesignated and amended at 84 FR 177, 190, Jan. 18, 2019] | (a) If the Board obtains a legal or medical opinion. If the Board requests an opinion pursuant to Rule 906 (§ 20.906), the Board will notify the appellant and his or her representative, if any. When the Board receives the opinion, it will furnish a copy of the opinion to the appellant, subject to the limitations provided in 38 U.S.C. 5701(b)(1), and to the appellant's representative, if any. A period of 60 days from the date the Board furnishes a copy of the opinion will be allowed for response, which may include the submission of relevant evidence or argument. The date the Board furnishes a copy will be presumed to be the same as the date of the letter or memorandum that accompanies the copy of the opinion for purposes of determining whether a response was timely filed. (b) If the Board supplements the record with a recognized medical treatise —(1) General. If, pursuant to Rule 904(d)(5) (§ 20.904(d)(5)), the Board supplements the record with a recognized medical treatise, the Board will notify the appellant and his or her representative, if any, that the Board will consider such recognized medical treatise in the adjudication of the appeal. The notice from the Board will contain a copy of the relevant portions of the recognized medical treatise. The appellant will be given 60 days after the date of the notice described in this section to file a response, which may include the submission of relevant evidence or argument. The date the Board gives the notice will be presumed to be the same as the date of the notice letter for purposes of determining whether a response was timely filed. (2) Exception. The notice described in paragraph (b)(1) of this section is not required if the Board uses a recognized medical treatise or medical dictionary for the limited purpose of defining a medical term and that definition is not material to the Board's disposition of the appeal. | ||||
| 38:38:2.0.1.1.5.11.35.1 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | K | Subpart K—Vacatur and Reconsideration | § 20.1000 Rule 1000. Vacating a decision. | VA | [57 FR 4109, Feb. 3, 1992. Redesignated and amended at 84 FR 177, 191, Jan. 18, 2019, as amended at 84 FR 4337, Feb. 15, 2019] | 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) Denial of 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 there was a prejudicial failure to afford the appellant a personal hearing. (Where there was a failure to honor a request for a hearing and a hearing is subsequently scheduled, but the appellant fails to appear, the decision will not be vacated.), and (3) For a legacy appeal, as defined in § 19.2 of this chapter, when a Statement of the Case or required Supplemental Statement of the Case was not provided. (b) Allowance of benefits based on false or fraudulent evidence. 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. | ||||
| 38:38:2.0.1.1.5.11.35.2 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | K | Subpart K—Vacatur and Reconsideration | § 20.1001 Rule 1001. When reconsideration is accorded. | VA | [57 FR 4109, Feb. 3, 1992. Redesignated and amended at 84 FR 190, 191, Jan. 18, 2019] | 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 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. | ||||
| 38:38:2.0.1.1.5.11.35.3 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | K | Subpart K—Vacatur and Reconsideration | § 20.1002 Rule 1002. Filing and disposition of motion for reconsideration. | VA | [57 FR 4109, Feb. 3, 1992, as amended at 81 FR 32650, May 24, 2016. Redesignated and amended at 84 FR 190, 191, Jan. 18, 2019] | (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: Board of Veterans' Appeals, P.O. Box 27063, Washington, DC 20038. (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: (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 let… | ||||
| 38:38:2.0.1.1.5.11.35.4 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | K | Subpart K—Vacatur and Reconsideration | § 20.1003 Rule 1003. Hearings on reconsideration. | VA | [61 FR 20453, May 7, 1996, as amended at 84 FR 191, Jan. 18, 2019] | After a motion for reconsideration has been allowed, a hearing will be granted if the issue under reconsideration was considered on a docket for cases that may include a hearing, and an appellant requests a hearing before the Board. The hearing will be held by a Member or Members assigned to the reconsideration panel. A 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. Requests for appearances by representatives alone to personally present argument to a Member or panel of 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. | ||||
| 38:38:2.0.1.1.5.11.35.5 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | K | Subpart K—Vacatur and Reconsideration | § 20.1004 Rule 1004. Reconsideration panel. | VA | [61 FR 20449, May 7, 1996. Redesignated at 84 FR 177, Jan. 18, 2019, as amended at 84 FR 4337, Feb. 15, 2019] | (a) Assignment of Members. When a motion for reconsideration is allowed, the Chairman will assign a panel of three or more Members of the Board, which may include the Chairman, to conduct the reconsideration. (b) Number of Members constituting a reconsideration panel. In the case of a matter originally decided by a single Member of the Board, the case shall be referred to a panel of three Members of the Board. In the case of a matter originally decided by a panel of Members of the Board, the case shall be referred to an enlarged panel, consisting of three or more Members than the original panel. In order to obtain a majority opinion, the number of Members assigned to a reconsideration panel may be increased in successive increments of three. (c) Members included in the reconsideration panel. The reconsideration panel may not include any Member who participated in the decision that is being reconsidered. Additional Members will be assigned in accordance with paragraph (b) of this section. | ||||
| 38:38:2.0.1.1.5.11.35.6 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | K | Subpart K—Vacatur and Reconsideration | §§ 20.1005-20.1099 [Reserved] | VA | ||||||
| 38:38:2.0.1.1.5.12.35.1 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | L | Subpart L—Finality | § 20.1100 Rule 1100. Finality of decisions of the Board. | VA | [57 FR 4109, Feb. 3, 1992, as amended at 61 FR 20453, May 7, 1996] | (a) General. All decisions of the Board 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 Panel in an appeal in which the Chairman has ordered reconsideration is final. (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. | ||||
| 38:38:2.0.1.1.5.12.35.2 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | L | Subpart L—Finality | § 20.1101 Rule 1101. [Reserved] | VA | ||||||
| 38:38:2.0.1.1.5.12.35.3 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | L | Subpart L—Finality | § 20.1102 Rule 1102. Harmless error. | VA | 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. | |||||
| 38:38:2.0.1.1.5.12.35.4 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | L | Subpart L—Finality | § 20.1103 Rule 1103. Finality of determinations of the agency of original jurisdiction where issue is not appealed. | VA | [84 FR 191, Jan. 18, 2019] | 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 § 19.52 of this chapter. If no Notice of Disagreement is filed as prescribed in subpart C of this part, the claim shall not thereafter be readjudicated or allowed, except as provided by 38 U.S.C. 5104B or 5108, or by regulation. | ||||
| 38:38:2.0.1.1.5.12.35.5 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | L | Subpart L—Finality | § 20.1104 Rule 1104. Finality of determinations of the agency of original jurisdiction affirmed on appeal. | VA | 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. | |||||
| 38:38:2.0.1.1.5.12.35.6 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | L | Subpart L—Finality | § 20.1105 Rule 1105. Supplemental claim after promulgation of appellate decision. | VA | [84 FR 191, Jan. 18, 2019] | (a) After an appellate decision has been promulgated on a claim, a claimant may file a supplemental claim with the agency of original jurisdiction by submitting the prescribed form with new and relevant evidence related to the previously adjudicated claim as set forth in § 3.2601 of this chapter, except in cases involving simultaneously contested claims under Subpart E of this part. (b) Legacy appeals pending on the effective date. For legacy appeals as defined in § 19.2 of this chapter, where prior to the effective date described in Rule 4 (§ 20.4), an appellant requested that a claim be reopened after an appellate decision has been promulgated and submitted evidence in support thereof, a determination as to whether such evidence is new and material must be made and, if it is, as to whether it provides a basis for allowing the claim. An adverse determination as to either question is appealable. | ||||
| 38:38:2.0.1.1.5.12.35.7 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | L | Subpart L—Finality | § 20.1106 Rule 1106. Claim for death benefits by survivor—prior unfavorable decisions during veteran's lifetime. | VA | [79 FR 52984, Sept. 5, 2014] | Except with respect to benefits under the provisions of 38 U.S.C. 1311(a)(2) and 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 regard to any prior disposition of those issues during the veteran's lifetime. Cases in which a person substitutes for a deceased veteran under 38 U.S.C. 5121A are not claims for death benefits and are not subject to this section. Cases in which a person substitutes for a deceased death benefits claimant under 38 U.S.C. 5121A are claims for death benefits subject to this section. | ||||
| 38:38:2.0.1.1.5.12.35.8 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | L | Subpart L—Finality | §§ 20.1107-20.1199 [Reserved] | VA | ||||||
| 38:38:2.0.1.1.5.13.35.1 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | M | Subpart M—Privacy Act | § 20.1200 Rule 1200. Privacy Act request—appeal pending. | VA | 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. | |||||
| 38:38:2.0.1.1.5.13.35.2 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | M | Subpart M—Privacy Act | § 20.1201 Rule 1201. Amendment of appellate decisions. | VA | [57 FR 4109, Feb. 3, 1992, as amended at 84 FR 191, Jan. 18, 2019] | 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 1001 through 1004 (§§ 20.1001-20.1004). 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 1001 through 1004 (§§ 20.1001-20.1004). | ||||
| 38:38:2.0.1.1.5.13.35.3 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | M | Subpart M—Privacy Act | §§ 20.1202-20.1299 [Reserved] | VA | ||||||
| 38:38:2.0.1.1.5.14.35.1 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | N | Subpart N—Miscellaneous | § 20.1300 Rule 1300. Removal of Board records. | VA | [61 FR 29028, June 7, 1996] | 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 transmit copies for other official purposes. | ||||
| 38:38:2.0.1.1.5.14.35.2 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | N | Subpart N—Miscellaneous | § 20.1301 Rule 1301. Disclosure of information. | VA | [57 FR 4109, Feb. 3, 1992, as amended at 71 FR 18009, Apr. 10, 2006; 81 FR 32650, May 24, 2016; 84 FR 191, Jan. 18, 2019] | (a) Policy. It is the policy of the Board for the full text of appellate decisions to be disclosed to appellants. In those situations where disclosing certain information directly to the appellant would not be in conformance with 38 U.S.C. 5701, that information will be removed from the decision and the remaining text will be furnished to the appellant. A full-text appellate decision will be disclosed to the designated representative, however, unless the relationship between the appellant and representative is such (for example, a parent or spouse) that disclosure to the representative would be as harmful as if made to the appellant. (b) Legacy appeals. For legacy appeals as defined in § 19.2 of this chapter, the policy described in paragraph (a) of this section is also applicable to Statements of the Case and supplemental Statements of the Case. (c) Public availability of Board decisions —(1) Decisions issued on or after January 1, 1992. Decisions rendered by the Board of Veterans' Appeals on or after January 1, 1992, are electronically available for public inspection and copying on the Board's website. All personal identifiers are redacted from the decisions prior to publication. Specific decisions may be identified by a word and/or topic search, or by the Board docket number. Board decisions will continue to be provided in a widely-used format as future advances in technology occur. (2) Decisions issued prior to January 1, 1992. Decisions rendered by the Board of Veterans' Appeals prior to January 1, 1992, have been indexed to facilitate access to the contents of the decisions (BVA Index I-01-1). The index, which was published quarterly in microfiche form with an annual cumulation, is available for review at Department of Veterans Affairs regional offices and at the Board of Veterans' Appeals in Washington, DC. Information on obtaining a microfiche copy of the index is also available from the Board. The index can be used to locate citations to decisions with issues similar to those of concern to an… | ||||
| 38:38:2.0.1.1.5.14.35.3 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | N | Subpart N—Miscellaneous | § 20.1302 Rule 1302. Death of appellant during pendency of appeal before the Board. | VA | [79 FR 52984, Sept. 5, 2014, as amended at 84 FR 191, Jan. 18, 2019] | (a) General. An appeal pending before the Board of Veterans' Appeals when the appellant dies will be dismissed without prejudice. A person eligible for substitution under § 3.1010 of this chapter may file with the agency of original jurisdiction a request to substitute for the deceased appellant. If the agency of original jurisdiction grants the request to substitute, the case will assume its original place on the docket pursuant to Rule 800, paragraph (f) (§ 20.800(f)) or, for legacy appeals, Rule 902, paragraph (a)(2) (§ 20.902(a)(2)). If the agency of original jurisdiction denies the request to substitute and the person requesting to substitute appeals that decision to the Board, the appeal regarding eligibility to substitute will assume the same place on the docket as the original claim pursuant to Rule 800, paragraph (f) (§ 20.800(f)) or, for legacy appeals, Rule 902, paragraph (a)(2) (§ 20.902(a)(2)). (b) Exception. (1) If a hearing request is pending pursuant to Rule 704 (§ 20.704) when the appellant dies, the agency of original jurisdiction may take action on a request to substitute without regard to whether the pending appeal has been dismissed by the Board, if the request is submitted in accordance with § 3.1010 of this chapter. (2) If the agency of original jurisdiction grants the request to substitute, the Board of Veterans' Appeals can then take the testimony of the substitute at a hearing held pursuant to Rules 700 through 717 (§§ 20.700 through 20.717). If the substitute desires representation at the hearing, he or she must appoint a representative prior to the hearing pursuant to § 14.631(g) of this chapter. | ||||
| 38:38:2.0.1.1.5.14.35.4 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | N | Subpart N—Miscellaneous | § 20.1303 Rule 1303. Nonprecedential nature of Board decisions. | VA | 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. | |||||
| 38:38:2.0.1.1.5.14.35.5 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | N | Subpart N—Miscellaneous | § 20.1304 Rule 1304. Request for a change in representation. | VA | [84 FR 191, Jan. 18, 2019] | (a) Request for a change in representation within 90 days following Notice of Disagreement. An appellant and his or her representative, if any, will be granted a period of 90 days following receipt of a Notice of Disagreement, or up to and including the date the appellate decision is promulgated by the Board, whichever comes first, during which they may submit a request for a change in representation. (b) Subsequent request for a change in representation. Following the expiration of the period described in paragraph (a) of this section, the Board will not accept a request for a change in representation except when the appellant demonstrates on motion that there was good cause for the delay. Examples of good cause include, but are not limited to, illness of the appellant or the representative which precluded action during the period; death of an individual representative; illness or incapacity of an individual representative which renders it impractical for an appellant to continue with him or her as representative; and withdrawal of an individual representative. Such motions must be in writing and must include the name of the veteran; the name of the claimant or appellant if other than the veteran ( e.g., a veteran's survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual's behalf) or the name of any substitute claimant or appellant; the applicable Department of Veterans Affairs file number; and an explanation of why the request for a change in representation could not be accomplished in a timely manner. Such motions must be filed at the following address: Board of Veterans' Appeals, P.O. Box 27063, Washington, DC 20038. Depending upon the ruling on the motion, action will be taken as follows: (1) Good cause not shown. If good cause is not shown, the request for a change in representation will be referred to the agency of original jurisdiction for association with the appellant's file for any pending or subsequently received claims upon completion of the Board's action on t… | ||||
| 38:38:2.0.1.1.5.14.35.6 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | N | Subpart N—Miscellaneous | § 20.1305 Rule 1305. Procedures for legacy appellants to request a change in representation, personal hearing, or submission of additional evidence following certification of an appeal to the Board of Veterans' Appeals. | VA | [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; 79 FR 52984, Sept. 5, 2014; 81 FR 32650, May 24, 2016. Redesignated and amended at 84 FR 191, 192, Jan. 18, 2019] | (a) Request for a change in representation, request for a personal hearing, or submission of additional evidence within 90 days following notification of certification and transfer of records. An appellant in a legacy appeal, as defined in § 19.2 of this chapter, and his or her representative, if any, will be granted a period of 90 days following the mailing of notice to them that an appeal has been certified to the Board for appellate review and that the appellate record has been transferred to the Board, or up to and including the date the appellate decision is promulgated by the Board, whichever comes first, during which they may submit a request for a personal hearing, additional evidence, or a request for a change in representation. Any such request or additional evidence should be submitted directly to the Board and not to the agency of original jurisdiction. If any such request or additional evidence is submitted to the agency of original jurisdiction instead of to the Board, the agency of original jurisdiction must forward it to the Board in accordance with § 19.37(b) of this chapter. The date of mailing of the letter of notification will be presumed to be the same as the date of that letter for purposes of determining whether the request was timely made or the evidence was timely submitted. Any evidence which is submitted at a hearing on appeal which was requested during such period will be considered to have been received during such period, even though the hearing may be held following the expiration of the period. Any pertinent evidence submitted by the appellant or representative is subject to the requirements of paragraph (d) of this section if a simultaneously contested claim is involved. (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… | ||||
| 38:38:2.0.1.1.5.14.35.7 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | N | Subpart N—Miscellaneous | §§ 20.1306-20.1399 [Reserved] | VA | ||||||
| 38:38:2.0.1.1.5.15.35.1 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | O | Subpart O—Revision of Decisions on Grounds of Clear and Unmistakable Error | § 20.1400 Rule 1400. Motions to revise Board decisions. | VA | [64 FR 2139, Jan. 13, 1999, as amended at 64 FR 73414, Dec. 30, 1999] | (a) Review to determine whether clear and unmistakable error exists in a final Board decision may be initiated by the Board, on its own motion, or by a party to that decision (as the term “party” is defined in Rule 1401(b) (§ 20.1401(b) of this part) in accordance with Rule 1404 (§ 20.1404 of this part). (b) All final Board decisions are subject to revision under this subpart except: (1) Decisions on issues which have been appealed to and decided by a court of competent jurisdiction; and (2) Decisions on issues which have subsequently been decided by a court of competent jurisdiction. | ||||
| 38:38:2.0.1.1.5.15.35.10 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | O | Subpart O—Revision of Decisions on Grounds of Clear and Unmistakable Error | § 20.1409 Rule 1409. Finality and appeal. | VA | [64 FR 2139, Jan. 13, 1999, as amended at 66 FR 35903, July 10, 2001; 84 FR 193, Jan. 18, 2019] | (a) A decision on a motion filed by a party or initiated by the Board pursuant to this subpart will be stamped with the date of mailing on the face of the decision, and is final on such date. The party and his or her representative, if any, will be provided with copies of the decision. (b) For purposes of this section, a dismissal without prejudice under Rule 1404(a)(§ 20.1404(a) of this part), Rule 1404(b)(§ 20.1404(b)), or Rule 1404(f)(§ 20.1404(f)), or a referral under Rule 1405, paragraph (d) (§ 20.1405(d) of this part) is not a final decision of the Board. (c) Once there is a final decision on a motion under this subpart relating to a prior Board decision on an issue, that prior Board decision on that issue is no longer subject to revision on the grounds of clear and unmistakable error. Subsequent motions relating to that prior Board decision on that issue shall be dismissed with prejudice. (d) Chapter 72 of title 38, United States Code (relating to judicial review), applies with respect to final decisions on motions filed by a party or initiated by the Board pursuant to this subpart. | ||||
| 38:38:2.0.1.1.5.15.35.11 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | O | Subpart O—Revision of Decisions on Grounds of Clear and Unmistakable Error | § 20.1410 Rule 1410. Stays pending court action. | VA | The Board will stay its consideration of a motion under this subpart upon receiving notice that the Board decision that is the subject of the motion has been appealed to a court of competent jurisdiction until the appeal has been concluded or the court has issued an order permitting, or directing, the Board to proceed with the motion. | |||||
| 38:38:2.0.1.1.5.15.35.12 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | O | Subpart O—Revision of Decisions on Grounds of Clear and Unmistakable Error | § 20.1411 Rule 1411. Relationship to other statutes. | VA | [57 FR 4109, Feb. 3, 1992, as amended at 84 FR 193, Jan. 18, 2019] | (a) The “benefit of the doubt” rule of 38 U.S.C. 5107(b) does not apply to the Board's decision, on a motion under this subpart, as to whether there was clear and unmistakable error in a prior Board decision. (b) For legacy appeals as defined in § 19.2 of this chapter, a motion under this subpart is not a claim subject to reopening under 38 U.S.C. 5108 (prior to the effective date described in Rule 4, paragraph (a) (§ 20.4(a) of this part) (relating to reopening claims on the grounds of new and material evidence). (c) A motion under this subpart is not an application for benefits subject to any duty associated with 38 U.S.C. 5103(a) (relating to applications for benefits). (d) A motion under this subpart is not a claim for benefits subject to the requirements and duties associated with 38 U.S.C. 5103A (imposing a duty to assist). | ||||
| 38:38:2.0.1.1.5.15.35.13 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | O | Subpart O—Revision of Decisions on Grounds of Clear and Unmistakable Error | §§ 20.1412-20.1499 [Reserved] | VA | ||||||
| 38:38:2.0.1.1.5.15.35.2 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | O | Subpart O—Revision of Decisions on Grounds of Clear and Unmistakable Error | § 20.1401 Rule 1401. Definitions. | VA | [57 FR 4109, Feb. 3, 1992, as amended at 84 FR 192, Jan. 18, 2019] | (a) Issue. Unless otherwise specified, the term “issue” in this subpart means a matter upon which the Board made a final decision (other than a decision under this subpart). As used in the preceding sentence, a “final decision” is one which was appealable under Chapter 72 of title 38, United States Code, or which would have been so appealable if such provision had been in effect at the time of the decision. (b) Party. As used in this subpart, the term “party” means any party to the proceeding before the Board that resulted in the final Board decision which is the subject of a motion under this subpart. | ||||
| 38:38:2.0.1.1.5.15.35.3 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | O | Subpart O—Revision of Decisions on Grounds of Clear and Unmistakable Error | § 20.1402 Rule 1402. Inapplicability of other rules. | VA | Motions filed under this subpart are not appeals and, except as otherwise provided, are not subject to the provisions of part 19 of this title or this part 20 which relate to the processing and disposition of appeals. | |||||
| 38:38:2.0.1.1.5.15.35.4 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | O | Subpart O—Revision of Decisions on Grounds of Clear and Unmistakable Error | § 20.1403 Rule 1403. What constitutes clear and unmistakable error; what does not. | VA | [57 FR 4109, Feb. 3, 1992, as amended at 84 FR 192, Jan. 18, 2019] | (a) General. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. (b) Record to be reviewed —(1) General. Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made. (2) Special rule for Board decisions on legacy appeals issued on or after July 21, 1992. For a Board decision on a legacy appeal as defined in § 19.2 of this chapter issued on or after July 21, 1992, the record that existed when that decision was made includes relevant documents possessed by the Department of Veterans Affairs not later than 90 days before such record was transferred to the Board for review in reaching that decision, provided that the documents could reasonably be expected to be part of the record. (c) Errors that constitute clear and unmistakable error. To warrant revision of a Board decision on the grounds of clear and unmistakable error, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. (d) Examples of situations that are not clear and unmistakable error —(1) Changed diagnosis. A new medical diagnosis that “corrects” an earlier diagnosis considered in a Board decision. (2) Duty to assist. The Secretary's failure to fulfill the duty to assist. (3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated. (e) Change in interpre… | ||||
| 38:38:2.0.1.1.5.15.35.5 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | O | Subpart O—Revision of Decisions on Grounds of Clear and Unmistakable Error | § 20.1404 Rule 1404. Filing and pleading requirements; withdrawal. | VA | [64 FR 2139, Jan. 13, 1999, as amended at 66 FR 35903, July 10, 2001; 81 FR 32650, May 24, 2016; 84 FR 192, Jan. 18, 2019] | (a) General. A motion for revision of a decision based on clear and unmistakable error must be in writing, and must be signed by the moving party or that party's representative. The motion must include the name of the veteran; the name of the moving party if other than the veteran; the applicable Department of Veterans Affairs file number; and the date of the Board of Veterans' Appeals decision to which the motion relates. If the applicable decision involved more than one issue on appeal, the motion must identify the specific issue, or issues, to which the motion pertains. Motions which fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to refiling under this subpart. (b) Specific allegations required. The motion must set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. Non-specific allegations of failure to follow regulations or failure to give due process, or any other general, non-specific allegations of error, are insufficient to satisfy the requirement of the previous sentence. Motions which fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to refiling under this subpart. (c) Filing. A motion for revision of a decision based on clear and unmistakable error may be filed at any time. Such motions should be filed at the following address: Board of Veterans' Appeals, P.O. Box 27063, Washington, DC 20038. (d) Requests not filed at the Board. A request for revision transmitted to the Board by the Secretary pursuant to 38 U.S.C. 7111(f) (relating to requests for revision filed with the Secretary other than at the Board) shall be treated as if a motion had been filed pursuant to paragraph (c) of this section. (e) Motions for reconsideration. A motion for reconsideration, as described in subpart K of … | ||||
| 38:38:2.0.1.1.5.15.35.6 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | O | Subpart O—Revision of Decisions on Grounds of Clear and Unmistakable Error | § 20.1405 Rule 1405. Disposition. | VA | [64 FR 2139, Jan. 13, 1999, as amended at 64 FR 7091, Feb. 12, 1999; 66 FR 37151, July 17, 2001; 68 FR 53682, Sept. 12, 2003; 81 FR 32650, May 24, 2016; 84 FR 192, Jan. 18, 2019; 84 FR 34788, July 19, 2019] | (a) Docketing and assignment; notification of representative —(1) General. Motions under this subpart will be docketed in the order received and will be assigned in accordance with § 20.106 (relating to assignment of proceedings). Where an appeal is pending on the same underlying issue at the time the motion is received, the motion and the appeal may be consolidated under the same docket number and disposed of as part of the same proceeding. A motion may not be assigned to any Member who participated in the decision that is the subject of the motion. If a motion is assigned to a panel, the decision will be by a majority vote of the panel Members. (2) Advancement on the docket. A motion may be advanced on the docket subject to the same substantive and procedural requirements as those applicable to an appeal under Rule 800, paragraph (c) (§ 20.800(c)) or, for legacy appeals, Rule 902, paragraph (c) (§ 20.902(c)). (3) Notification of representative. When the Board receives a motion under this subpart from an individual whose claims file indicates that he or she is represented, the Board shall provide a copy of the motion to the representative before assigning the motion to a Member or panel. Within 30 days after the date on which the Board provides a copy of the motion to the representative, the representative may file a relevant response, including a request to review the claims file prior to filing a further response. Upon request made within the time allowed under this paragraph (a)(2), the Board shall arrange for the representative to have the opportunity to review the claims file, and shall permit the representative a reasonable time after making the file available to file a further response. (b) Evidence. No new evidence will be considered in connection with the disposition of the motion. Material included in the record on the basis of Rule 1403(b)(2) (§ 20.1403(b)(2) of this part) is not considered new evidence. (c) Hearing —(1) Availability. The Board may, for good cause shown, grant a reques… | ||||
| 38:38:2.0.1.1.5.15.35.7 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | O | Subpart O—Revision of Decisions on Grounds of Clear and Unmistakable Error | § 20.1406 Rule 1406. Effect of revision; discontinuance or reduction of benefits. | VA | (a) General. A decision of the Board that revises a prior Board decision on the grounds of clear and unmistakable error has the same effect as if the decision had been made on the date of the prior decision. (b) Discontinuance or reduction of benefits. Revision of a prior Board decision under this subpart that results in the discontinuance or reduction of benefits is subject to laws and regulations governing the reduction or discontinuance of benefits by reason of erroneous award based solely on administrative error or errors in judgment. | |||||
| 38:38:2.0.1.1.5.15.35.8 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | O | Subpart O—Revision of Decisions on Grounds of Clear and Unmistakable Error | § 20.1407 Rule 1407. Motions by the Board. | VA | If the Board undertakes, on its own motion, a review pursuant to this subpart, the party to that decision and that party's representative (if any) will be notified of such motion and provided an adequate summary thereof and, if applicable, outlining any proposed discontinuance or reduction in benefits that would result from revision of the Board's prior decision. They will be allowed a period of 60 days to file a brief or argument in answer. The failure of a party to so respond does not affect the finality of the Board's decision on the motion. | |||||
| 38:38:2.0.1.1.5.15.35.9 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | O | Subpart O—Revision of Decisions on Grounds of Clear and Unmistakable Error | § 20.1408 Rule 1408. Special rules for simultaneously contested claims. | VA | [57 FR 4109, Feb. 3, 1992, as amended at 84 FR 193, Jan. 18, 2019] | In the case of a motion under this subpart to revise a final Board decision in a simultaneously contested claim, as that term is used in Rule 3(l) (§ 20.3(l) of this part), a copy of such motion shall, to the extent practicable, be sent to all other contesting parties. Other parties have a period of 30 days from the date of mailing of the copy of the motion to file 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. 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. | ||||
| 38:38:2.0.1.1.5.2.35.1 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | B | Subpart B—The Board | § 20.100 Rule 100. Establishment of the Board. | VA | [57 FR 4104, Feb. 3, 1992. Redesignated at 84 FR 177, Jan. 18, 2019, as amended at 84 FR 180, Jan. 18, 2019] | The Board of Veterans' Appeals is established by authority of, and functions pursuant to, title 38, United States Code, chapter 71. | ||||
| 38:38:2.0.1.1.5.2.35.10 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | B | Subpart B—The Board | § 20.109 Rule 109. Delegation of authority to Vice Chairman, Deputy Vice Chairmen, or Members of the Board. | VA | [84 FR 4337, Feb. 15, 2019] | (a) The authority exercised by the Chairman of the Board of Veterans' Appeals described in Rules 106(b) and 107(b) (§§ 20.106(b) and 20.107(b)) may also be exercised by the Vice Chairman of the Board. (b) The authority exercised by the Chairman of the Board of Veterans' Appeals described in Rules 1004 and 1002(c) (§§ 20.1004 and 20.1002(c)) may also be exercised by the Vice Chairman of the Board and by Deputy Vice Chairmen of the Board. (c) The authority exercised by the Chairman of the Board of Veterans' Appeals described in Rule 2 (§ 20.2), may also be exercised by the Vice Chairman of the Board; by Deputy Vice Chairmen of the Board; and, in connection with a proceeding or motion assigned to them by the Chairman, by a Member or Members of the Board. | ||||
| 38:38:2.0.1.1.5.2.35.11 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | B | Subpart B—The Board | § 20.110 Rule 110. Computation of time limit for filing. | VA | [57 FR 4109, Feb. 3, 1992. Redesignated and amended at 84 FR 182, Jan. 18, 2019] | (a) Acceptance of postmark 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 5-day period, Saturdays, Sundays and legal holidays will be excluded. (b) Computation of 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. | ||||
| 38:38:2.0.1.1.5.2.35.12 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | B | Subpart B—The Board | § 20.111 Rule 111. Legal holidays. | VA | [57 FR 4109, Feb. 3, 1992. Redesignated and amended at 84 FR 182, Jan. 18, 2019] | For the purpose of Rule 110 (§ 20.110), 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 Birthday—Third Monday in February; Memorial Day—Last Monday in May; Independence Day—July 4; Labor Day—First Monday in September; Columbus Day—Second Monday in October; Veterans Day—November 11; Thanksgiving Day—Fourth Thursday in November; and Christmas Day—December 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. | ||||
| 38:38:2.0.1.1.5.2.35.13 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | B | Subpart B—The Board | §§ 20.112-20.199 [Reserved] | VA | ||||||
| 38:38:2.0.1.1.5.2.35.2 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | B | Subpart B—The Board | § 20.101 Rule 101. Composition of the Board; titles. | VA | [68 FR 6625, Feb. 10, 2003. Redesignated at 84 FR 177, Jan. 18, 2019, as amended at 84 FR 4336, Feb. 15, 2019] | (a) The Board consists of a Chairman, Vice Chairman, Deputy Vice Chairmen, Members and professional, administrative, clerical and stenographic personnel. Deputy Vice Chairmen are Members of the Board who are appointed to that office by the Secretary upon the recommendation of the Chairman. (b) A Member of the Board (other than the Chairman) may also be known as a Veterans Law Judge. An individual designated as an acting member pursuant to 38 U.S.C. 7101(c)(1) may also be known as an acting Veterans Law Judge. | ||||
| 38:38:2.0.1.1.5.2.35.3 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | B | Subpart B—The Board | § 20.102 Rule 102. Name, business hours, and mailing address of the Board. | VA | [57 FR 4109, Feb. 3, 1992, as amended at 81 FR 32649, May 24, 2016. Redesignated and amended at 84 FR 177, 180, Jan. 18, 2019] | (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. Business hours are from 8 a.m. to 4:30 p.m. (c) Mailing address. The mailing address of the Board is: Board of Veterans' Appeals, P.O. Box 27063, Washington, DC 20038. Mail to the Board that is not related to an appeal must be addressed to: Board of Veterans' Appeals, 810 Vermont Avenue NW, Washington, DC 20420. | ||||
| 38:38:2.0.1.1.5.2.35.4 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | B | Subpart B—The Board | § 20.103 Rule 103. Principal functions of the Board. | VA | [57 FR 4104, Feb. 3, 1992. Redesignated at 84 FR 177, Jan. 19, 2019, as amended at 84 FR 4337, Feb. 15, 2019] | 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. | ||||
| 38:38:2.0.1.1.5.2.35.5 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | B | Subpart B—The Board | § 20.104 Rule 104. Jurisdiction of the Board. | VA | [57 FR 4109, Feb. 3, 1992, as amended at 66 FR 53339, Oct. 22, 2001. Redesignated and amended at 84 FR 177, 180, Jan. 18, 2019; 84 FR 34788, July 19, 2019; 91 FR 2713, Jan. 22, 2026] | (a) General. All questions of law and fact necessary to a decision by the Secretary of Veterans Affairs under a law that affects the provision of benefits by the Secretary to veterans or their dependents or survivors are subject to review on appeal to the Secretary. Decisions in such appeals are made by the Board of Veterans' Appeals. Examples of the issues over which the Board has jurisdiction include, but are not limited to, the following: (1) Entitlement to, and benefits resulting from, service-connected disability or death (38 U.S.C. chapter 11). (2) Dependency and indemnity compensation for service-connected death, including benefits in certain cases of inservice or service-connected deaths (38 U.S.C. 1312) and certification and entitlement to death gratuity (38 U.S.C. 1323). (3) Benefits for survivors of certain veterans rated totally disabled at time of death (38 U.S.C. 1318). (4) Entitlement to nonservice-connected disability pension, service pension and survivors pension (38 U.S.C. chapter 15). (5) All-Volunteer Force Educational Assistance Program (38 U.S.C. chapter 30). (6) Training and Rehabilitation for Veterans with Service-Connected Disabilities (38 U.S.C. chapter 31). (7) Post-Vietnam Era Veterans' Educational Assistance (38 U.S.C. chapter 32). (8) Veterans' Educational Assistance (38 U.S.C. chapter 34). (9) Survivors' and Dependents' Educational Assistance (38 U.S.C. chapter 35). (10) Veterans' Job Training (Pub. L. 98-77, as amended; 38 CFR 21.4600 et seq. ). (11) Educational Assistance for Members of the Selected Reserve (10 U.S.C. chapter 106). (12) Educational Assistance Test Program (10 U.S.C. chapter 107; 38 CFR 21.5701 et seq. ). (13) Educational Assistance Pilot Program (10 U.S.C. chapter 107; 38 CFR 21.5290 et seq. ). (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 unauthorized medical expenses (38 U.S.C. 1728). (16) Burial benefits and burial in National … | ||||
| 38:38:2.0.1.1.5.2.35.6 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | B | Subpart B—The Board | § 20.105 Rule 105. Criteria governing disposition of appeals. | VA | [84 FR 4337, Feb. 15, 2019] | In the consideration of appeals and in its decisions, 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. | ||||
| 38:38:2.0.1.1.5.2.35.7 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | B | Subpart B—The Board | § 20.106 Rule 106. Assignment of proceedings. | VA | [61 FR 20448, May 7, 1996. Redesignated at 84 FR 177, Jan. 18, 2019, as amended at 84 FR 4337, Feb. 15, 2019] | (a) Assignment. The Chairman may assign a proceeding instituted before the Board, including any motion, to an individual Member or to a panel of three or more Members for adjudication or other appropriate action. The Chairman may participate in a proceeding assigned to a panel of Members. (b) Inability to serve. If a Member is unable to participate in the disposition of a proceeding or motion to which the Member has been assigned, the Chairman may assign the proceeding or motion to another Member or substitute another Member (in the case of a proceeding or motion assigned to a panel). | ||||
| 38:38:2.0.1.1.5.2.35.8 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | B | Subpart B—The Board | § 20.107 Rule 107. Disqualification of Members. | VA | [57 FR 4104, Feb. 3, 1992, as amended at 61 FR 20449, May 7, 1996. Redesignated at 84 FR 177, Jan. 18, 2019, as amended at 84 FR 4337, Feb. 15, 2019] | (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 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. (b) Disqualification of 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 paragraph (a) of this section and in those cases where a Member is unable or unwilling to act. | ||||
| 38:38:2.0.1.1.5.2.35.9 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | B | Subpart B—The Board | § 20.108 Rule 108. Delegation of authority to Chairman and Vice Chairman, Board of Veterans' Appeals. | VA | [57 FR 4104, Feb. 3, 1992. Redesignated at 84 FR 177, Jan. 18, 2019, as amended at 84 FR 4337, Feb. 15, 2019] | 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. | ||||
| 38:38:2.0.1.1.5.3.35.1 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | C | Subpart C—Commencement and Filing of Appeals | § 20.200 Rule 200. Notification by agency of original jurisdiction of right to appeal. | VA | The claimant and his or her representative, if any, will be informed of appellate rights provided by 38 U.S.C. chapters 71 and 72, including the right to a personal hearing and the right to representation. The agency of original jurisdiction will provide this information in each notification of a determination of entitlement or nonentitlement to Department of Veterans Affairs benefits, pursuant to 38 U.S.C. 5104, 5104B, and 5108. | |||||
| 38:38:2.0.1.1.5.3.35.2 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | C | Subpart C—Commencement and Filing of Appeals | § 20.201 Rule 201. What constitutes an appeal. | VA | An appeal of a decision by the agency of original jurisdiction consists of a Notice of Disagreement submitted to the Board in accordance with the provisions of §§ 20.202-20.204. | |||||
| 38:38:2.0.1.1.5.3.35.3 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | C | Subpart C—Commencement and Filing of Appeals | § 20.202 Rule 202. Notice of Disagreement. | VA | (a) In general. A Notice of Disagreement must be properly completed on a form prescribed by the Secretary. If the agency of original jurisdiction decision addressed several issues, the Notice of Disagreement must identify the specific decision and issue or issues therein with which the claimant disagrees. The term issue means an adjudication of a specific entitlement as described in 38 CFR 3.151(c). The Board will construe such arguments in a liberal manner for purposes of determining whether they raise issues on appeal, but the Board may dismiss any appeal which fails to identify the specific decision and issue or issues therein with which the claimant disagrees. (b) Review options. Upon filing the Notice of Disagreement, a claimant must indicate whether the claimant requests: (1) Direct review by the Board of the record before the agency of original jurisdiction at the time of its decision, without submission of additional evidence or a Board hearing; (2) A Board hearing, to include an opportunity to submit additional evidence at the hearing and within 90 days following the hearing; or (3) An opportunity to submit additional evidence without a Board hearing with the Notice of Disagreement and within 90 days following receipt of the Notice of Disagreement. (c)(1) The information indicated by the claimant in paragraph (b) of this section determines the evidentiary record before the Board as described in subpart D of this part, and the docket on which the appeal will be placed, as described in Rule 800 (§ 20.800). Except as otherwise provided in paragraph (2) of this section, the Board will not consider evidence as described in Rules 302 or 303 (§§ 20.302 and 20.303) unless the claimant requests a Board hearing or an opportunity to submit additional evidence on the Notice of Disagreement. (2) A claimant may modify the information identified in the Notice of Disagreement for the purpose of selecting a different evidentiary record option as described in paragraph (b) of this section. Requests to modify a N… | |||||
| 38:38:2.0.1.1.5.3.35.4 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | C | Subpart C—Commencement and Filing of Appeals | § 20.203 Rule 203. Place and time of filing of Notice of Disagreement. | VA | (a) Place of filing. The Notice of Disagreement must be filed with the Board of Veterans' Appeals, P.O. Box 27063, Washington, DC 20038. (b) Time of filing. Except as provided in § 20.402 for simultaneously contested claims, a claimant, or his or her representative, must file a properly completed Notice of Disagreement with a decision by the agency of original jurisdiction within one year from the date that the agency mails the notice of the decision. The date of mailing the letter of notification of the decision will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. (c) Extension of time of filing. An extension of the period for filing a Notice of Disagreement or a request to modify a Notice of Disagreement may be granted for good cause. A request for such an extension must be in writing and must be filed with the Board. Whether good cause for an extension has been established will be determined by the Board. | |||||
| 38:38:2.0.1.1.5.3.35.5 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | C | Subpart C—Commencement and Filing of Appeals | § 20.204 Rule 204. Who can file a Notice of Disagreement. | VA | (a) Persons authorized. A Notice of Disagreement may be filed by a claimant personally, or by his or her representative if a proper Power of Attorney is on record or accompanies such Notice of Disagreement. (b) Claimant rated incompetent by Department of Veterans Affairs or under disability and unable to file. If an appeal is not filed by a person listed in paragraph (a) of this section, and the claimant is rated incompetent by the Department of Veterans Affairs or has a physical, mental, or legal disability which prevents the filing of an appeal on his or her own behalf, a Notice of Disagreement may be filed by a fiduciary appointed to manage the claimant's affairs by the Department of Veterans Affairs or a court, or by a person acting as next friend if the appointed fiduciary fails to take needed action or no fiduciary has been appointed. (c) Claimant under disability and able to file. Notwithstanding the fact that a fiduciary may have been appointed for a claimant, an appeal filed by a claimant will be accepted. | |||||
| 38:38:2.0.1.1.5.3.35.6 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | C | Subpart C—Commencement and Filing of Appeals | § 20.205 Rule 205. Withdrawal of appeal. | VA | (a) When and by whom filed. Only an appellant, or an appellant's authorized representative, may withdraw an appeal. An appeal may be withdrawn as to any or all issues involved in the appeal. (b) Filing —(1) Content. Appeal withdrawals must include the name of the veteran, the name of the claimant or appellant if other than the veteran ( e.g., a veteran's survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual's behalf), the applicable Department of Veterans Affairs file number, and a statement that the appeal is withdrawn. If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety, or list the issue(s) withdrawn from the appeal. (2) Where to file. Appeal withdrawals should be filed with the Board. (3) When effective. An appeal withdrawal is effective when received by the Board. A withdrawal received after the Board issues a final decision under Rule 1100(a) (§ 20.1100(a)) will not be effective. (c) Effect of filing. Withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement as to all issues to which the withdrawal applies. Withdrawal does not preclude filing a new Notice of Disagreement pursuant to this subpart, a request for higher-level review under 38 U.S.C. 5104B, or a supplemental claim under 38 U.S.C. 5108, as to any issue withdrawn, provided such filing would be timely under these rules if the withdrawn appeal had never been filed. | |||||
| 38:38:2.0.1.1.5.3.35.7 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | C | Subpart C—Commencement and Filing of Appeals | §§ 20.206-20.299 [Reserved] | VA | ||||||
| 38:38:2.0.1.1.5.4.35.1 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | D | Subpart D—Evidentiary Record | § 20.300 Rule 300. General. | VA | [84 FR 182, Jan. 18, 2019] | (a) Decisions of the Board will be based on a de novo review of the evidence of record at the time of the agency of original jurisdiction decision on the issue or issues on appeal, and any additional evidence or testimony submitted pursuant to this subpart, as provided in § 20.801. (b) Waiver of appellant's right to submit evidence. For appeals described in 20.302 and 20.303, an appellant has a right to submit evidence during a period of 90 days, unless this right is waived by the appellant or representative at any time prior to the expiration of the applicable 90-day period. Such a waiver must be in writing or, if a hearing on appeal is conducted pursuant to 20.302, the waiver must be formally and clearly entered on the record orally at the time of the hearing. | ||||
| 38:38:2.0.1.1.5.4.35.2 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | D | Subpart D—Evidentiary Record | § 20.301 Rule 301. Appeals with no request for a Board hearing and no additional evidence. | VA | [84 FR 182, Jan. 18, 2019] | For appeals in which the appellant requested, on the Notice of Disagreement, direct review by the Board without submission of additional evidence and without a Board hearing, the Board's decision will be based on a review of the evidence of record at the time of the agency of original jurisdiction decision on the issue or issues on appeal. | ||||
| 38:38:2.0.1.1.5.4.35.3 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | D | Subpart D—Evidentiary Record | § 20.302 Rule 302. Appeals with a request for a Board hearing. | VA | [84 FR 182, Jan. 18, 2019] | (a) Except as described in paragraphs (b) and (c) of this section, for appeals in which the appellant requested, on the Notice of Disagreement, a Board hearing, the Board's decision will be based on a review of the following: (1) Evidence of record at the time of the agency of original jurisdiction's decision on the issue or issues on appeal; (2) Evidence submitted by the appellant or his or her representative at the hearing, to include testimony provided at the hearing; and (3) Evidence submitted by the appellant or his or her representative within 90 days following the hearing. (b) In the event that the hearing request is withdrawn pursuant to § 20.704(e), the Board's decision will be based on a review of evidence described in paragraph (a)(1) of this section, and evidence submitted by the appellant or his or her representative within 90 days following receipt of the withdrawal. (c) In the event that the appellant does not appear for a scheduled hearing, and the hearing is not rescheduled subject to § 20.704(d), the Board's decision will be based on a review of evidence described in paragraph (a)(1) of this section, and evidence submitted by the appellant or his or her representative within 90 days following the date of the scheduled hearing. | ||||
| 38:38:2.0.1.1.5.4.35.4 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | D | Subpart D—Evidentiary Record | § 20.303 Rule 303. Appeals with no request for a Board hearing, but with a request for submission of additional evidence. | VA | [84 FR 182, Jan. 18, 2019; 84 FR 34788, July 19, 2019] | For appeals in which the appellant requested, on the Notice of Disagreement, an opportunity to submit additional evidence without a Board hearing, the Board's decision will be based on a review of the following: (a) Evidence of record at the time of the agency of original jurisdiction's decision on the issue or issues on appeal; and (b) Evidence submitted by the appellant or his or her representative: (1) With the Notice of Disagreement or within 90 days following receipt of the Notice of Disagreement; or, (2) If the appellant did not request an opportunity to submit additional evidence on the Notice of Disagreement, but subsequently requested to submit additional evidence pursuant to Rule 202 (§ 20.202(c)(2)(ii)), within 90 days following VA's notice that the appeal has been moved to the docket described in § 20.800(a)(ii). | ||||
| 38:38:2.0.1.1.5.4.35.5 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | D | Subpart D—Evidentiary Record | §§ 20.304-20.399 [Reserved] | VA | ||||||
| 38:38:2.0.1.1.5.5.35.1 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | E | Subpart E—Appeal in Simultaneously Contested Claims | § 20.400 Rule 400. Notification of the right to appeal in a simultaneously contested claim. | VA | All interested parties will be specifically notified of the action taken by the agency of original jurisdiction in a simultaneously contested claim and of the right and time limit for submitting a Notice of Disagreement to the Board, as well as hearing and representation rights. | |||||
| 38:38:2.0.1.1.5.5.35.2 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | E | Subpart E—Appeal in Simultaneously Contested Claims | § 20.401 Rule 401. Who can file an appeal in simultaneously contested claims. | VA | In simultaneously contested claims, any claimant or representative of a claimant may file a Notice of Disagreement within the time limits set out in Rule 402 (§ 20.402). | |||||
| 38:38:2.0.1.1.5.5.35.3 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | E | Subpart E—Appeal in Simultaneously Contested Claims | § 20.402 Rule 402. Time limits for filing Notice of Disagreement in simultaneously contested claims. | VA | 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. | |||||
| 38:38:2.0.1.1.5.5.35.4 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | E | Subpart E—Appeal in Simultaneously Contested Claims | § 20.403 Rule 403. Notice to contesting parties on receipt of Notice of Disagreement in simultaneously contested claims. | VA | Upon the filing of a Notice of Disagreement in a simultaneously contested claim, all interested parties and their representatives will be furnished a copy of the substance of the Notice of Disagreement. The notice will inform the contesting party or parties of what type of review the appellant who initially filed a Notice of Disagreement selected under § 20.202(b), including whether a hearing was requested. | |||||
| 38:38:2.0.1.1.5.5.35.5 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | E | Subpart E—Appeal in Simultaneously Contested Claims | § 20.404 Rule 404. Time limit for response to appeal by another contesting party in a simultaneously contested claim. | VA | A party to a simultaneously contested claim may file a brief, argument, or request for a different type of review under § 20.202(b) in answer to a Notice of Disagreement filed by another contesting party. Any such brief, argument, or request must be filed with the Board within 30 days from the date the content of the Notice of Disagreement is furnished as provided in § 20.403. Such content will be presumed to have been furnished on the date of the letter that accompanies the content. | |||||
| 38:38:2.0.1.1.5.5.35.6 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | E | Subpart E—Appeal in Simultaneously Contested Claims | § 20.405 Rule 405. Docketing of simultaneously contested claims at the Board. | VA | [84 FR 182, Jan. 18, 2019; 84 FR 34788, July 19, 2019] | After expiration of the 30-day period for response in § 20.404, the Board will place all parties of the simultaneously contested claim on the docket for the type of review requested under § 20.202(b). In the event the parties request different types of review, if any party requests a hearing the appeal will be placed on the docket described in § 20.800(a)(iii), and VA will notify the parties that a hearing will be scheduled. If no party requested a hearing, but any party requested the opportunity to submit additional evidence, the appeal will be placed on the docket described in § 20.800(a)(ii), and the parties will be notified of their opportunity to submit additional evidence within 90 days of the date of such notice. | ||||
| 38:38:2.0.1.1.5.5.35.7 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | E | Subpart E—Appeal in Simultaneously Contested Claims | § 20.406 Rule 406. Notices sent to last addresses of record in simultaneously contested claims. | VA | 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. | |||||
| 38:38:2.0.1.1.5.5.35.8 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | E | Subpart E—Appeal in Simultaneously Contested Claims | § 20.407 Rule 407. Favorable findings are not binding in contested claims. | VA | [84 FR 182, Jan. 18, 2019; 84 FR 34788, July 19, 2019] | Where a claim is contested, findings favorable to either party, as described in Rule 801 (§ 20.801), are no longer binding on all agency of original jurisdiction and Board of Veterans' Appeals adjudicators during the pendency of the contested appeal. | ||||
| 38:38:2.0.1.1.5.5.35.9 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | E | Subpart E—Appeal in Simultaneously Contested Claims | §§ 20.408-20.499 [Reserved] | VA | ||||||
| 38:38:2.0.1.1.5.6.35.1 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | F | Subpart F—Legacy Appeal in Simultaneously Contested Claims | § 20.500 Rule 500. Applicability. | VA | [84 FR 183, Jan. 18, 2019] | The provisions of this subpart apply to legacy appeals, as defined in § 19.2 of this chapter. | ||||
| 38:38:2.0.1.1.5.6.35.2 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | F | Subpart F—Legacy Appeal in Simultaneously Contested Claims | § 20.501 Rule 501. Who can file an appeal in simultaneously contested claims. | VA | [57 FR 4109, Feb. 3, 1992. Redesignated and amended at 84 FR 183, Jan. 18, 2019] | 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 502 (§ 20.502). | ||||
| 38:38:2.0.1.1.5.6.35.3 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | F | Subpart F—Legacy Appeal in Simultaneously Contested Claims | § 20.502 Rule 502. Time limits for filing Notice of Disagreement, Substantive Appeal, and response to Supplemental Statement of the Case in simultaneously contested claims. | VA | [57 FR 4109, Feb. 3, 1992, as amended at 68 FR 64806, Nov. 17, 2003. Redesignated and amended at 84 FR 183, Jan. 18, 2019; 84 FR 34788, July 19, 2019.] | (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. (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. (c) Supplemental Statement 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. | ||||
| 38:38:2.0.1.1.5.6.35.4 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | F | Subpart F—Legacy Appeal in Simultaneously Contested Claims | § 20.503 Rule 503. Time limit for response to appeal by another contesting party in a simultaneously contested claim. | VA | [66 FR 60153, Dec. 3, 2001. Redesignated and amended at 84 FR 183, Jan. 18, 2019] | A party to a simultaneously contested claim may file a brief or argument in answer to a Substantive Appeal filed by another contesting party. Any such brief or argument must be filed with the agency of original jurisdiction within 30 days from the date the content of the Substantive Appeal is furnished as provided in § 19.102 of this chapter. Such content will be presumed to have been furnished on the date of the letter that accompanies the content. | ||||
| 38:38:2.0.1.1.5.6.35.5 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | F | Subpart F—Legacy Appeal in Simultaneously Contested Claims | § 20.504 Rule 504. Extension of time for filing a Substantive Appeal in simultaneously contested claims. | VA | [57 FR 4109, Feb. 3, 1992. Redesignated and amended at 84 FR 183, Jan. 18, 2019] | 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 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. | ||||
| 38:38:2.0.1.1.5.6.35.6 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | F | Subpart F—Legacy Appeal in Simultaneously Contested Claims | § 20.505 Rule 505. Notices sent to last addresses of record in simultaneously contested claims. | VA | [57 FR 4109, Feb. 3, 1992. Redesignated and amended at 84 FR 183, Jan. 18, 2019] | 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. | ||||
| 38:38:2.0.1.1.5.6.35.7 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | F | Subpart F—Legacy Appeal in Simultaneously Contested Claims | §§ 20.506-20.599 [Reserved] | VA | ||||||
| 38:38:2.0.1.1.5.7.35.1 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | G | Subpart G—Legacy Hearings on Appeal | § 20.600 Rule 600. Applicability. | VA | [84 FR 184, Jan. 18, 2019] | (a) The provisions in this subpart apply to Board hearings conducted in legacy appeals, as defined in § 19.2 of this chapter. (b) Except as otherwise provided, Rules 700, 701, 704, 705, and 707-715 (§§ 20.700, 20.701, 20.704, 20.705, and 20.707-20.715) are also applicable to Board hearings conducted in legacy appeals. | ||||
| 38:38:2.0.1.1.5.7.35.2 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | G | Subpart G—Legacy Hearings on Appeal | § 20.601 Rule 601. Methods by which hearings in legacy appeals are conducted; scheduling and notice provisions for such hearings. | VA | [84 FR 186, Jan. 18, 2019] | (a) Methods by which hearings in legacy appeals are conducted. A hearing on appeal before the Board may be held by one of the following methods: (1) In person at the Board's principal location in Washington, DC; (2) By electronic hearing, through voice transmission or through picture and voice transmission, with the appellant appearing at a Department of Veterans Affairs facility or appropriate Federal facility; or (3) At a Department of Veterans Affairs facility having adequate physical resources and personnel for the support of such hearings. (b) Electronic hearings. An appropriate Federal facility consists of a Federal facility having adequate physical resources and personnel for the support of such hearings. (c) Provisions for scheduling and providing notice of hearings in legacy appeals. (1) The procedures for scheduling and providing notice of Board hearings in legacy appeals conducted by the methods described in paragraphs (a)(1) and (a)(2) of this section are contained in Rule 704 (§ 20.704). (2) The procedures for scheduling and providing notice of Board hearings in legacy appeals conducted at a Department of Veterans Affairs facility having adequate physical resources and personnel for the support of such hearings under (a)(3) are contained in Rule 603 (§ 20.603). | ||||
| 38:38:2.0.1.1.5.7.35.3 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | G | Subpart G—Legacy Hearings on Appeal | § 20.602 Rule 602. When a hearing before the Board of Veterans' Appeals may be requested in a legacy appeal; procedure for requesting a change in method of hearing. | VA | [84 FR 186, Jan. 18, 2019] | (a) How to request a hearing. An appellant, or an appellant's representative, may request a hearing before the Board when submitting the substantive appeal (VA Form 9) or anytime thereafter, subject to the restrictions in Rule 1305 (§ 20.1305). Requests for such hearings before a substantive appeal has been filed will be rejected. (b) Board's determination of method of hearing. Following the receipt of a request for a hearing, the Board shall determine, for purposes of scheduling the hearing for the earliest practical date, whether a hearing before the Board will be held at its principal location or at a facility of the Department or other appropriate Federal facility located within the area served by a regional office of the Department. The Board shall also determine whether the hearing will occur by means of an electronic hearing or by the appellant personally appearing before a Board member or panel. An electronic hearing will be in lieu of a hearing held by personally appearing before a Member or panel of Members of the Board and shall be conducted in the same manner as, and considered the equivalent of, such a hearing. (c) Notification of method of hearing. The Board will notify the appellant and his or her representative of the method of a hearing before the Board. (d) How to request a change in method of hearing. Upon notification of the method of the hearing requested pursuant to paragraph (c) of this section, an appellant may make one request for a different method of the requested hearing. If the appellant makes such a request, the Board shall grant the request and notify the appellant of the change in method of the hearing. (e) Notification of scheduling of hearing. The Board will notify the appellant and his or her representative of the scheduled time and location for the requested hearing not less than 30 days prior to the hearing date. This time limitation does not apply to hearings which have been rescheduled due to a postponement requested by an appellant, or on his or her behalf, or… | ||||
| 38:38:2.0.1.1.5.7.35.4 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | G | Subpart G—Legacy Hearings on Appeal | § 20.603 Rule 603. Scheduling and notice of hearings conducted by the Board of Veterans' Appeals at Department of Veterans Affairs field facilities in a legacy appeal. | VA | [84 FR 184, Jan. 18, 2019] | (a) General. Hearings may be conducted by a Member or Members of the Board during prescheduled visits to Department of Veterans Affairs facilities having adequate physical resources and personnel for the support of such hearings. Subject to paragraph (f) of this section, the hearings will be scheduled for each area served by a regional office in accordance with the place of each case on the Board's docket, established under § 20.902, relative to other cases for which hearings are scheduled to be held within that area. (b) Notification of hearing. When a hearing at a Department of Veterans Affairs field facility is scheduled, the person requesting it will be notified of its time and place, and of the fact that the Government may not assume any expense incurred by the appellant, the representative, or witnesses attending the hearing. (c) Requests for changes in hearing dates. Requests for a change in a hearing date may be made at any time up to two weeks prior to the scheduled date of the hearing if good cause is shown. Such requests must be in writing, must explain why a new hearing date is necessary, and must be filed with the Board. Examples of good cause include, but are not limited to, illness of the appellant and/or representative, difficulty in obtaining necessary records, and unavailability of a necessary witness. If good cause is shown, the hearing will be rescheduled for the next available hearing date after the appellant or his or her representative gives notice that the contingency which gave rise to the request for postponement has been removed. If good cause is not shown, the appellant and his or her representative will be promptly notified and given an opportunity to appear at the hearing as previously scheduled. If the appellant elects not to appear at the prescheduled date, the request for a hearing will be considered to have been withdrawn. In such cases, however, the record will be submitted for review by the Member who would have presided over the hearing. If the presiding Member determi… | ||||
| 38:38:2.0.1.1.5.7.35.5 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 20 | PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE | G | Subpart G—Legacy Hearings on Appeal | § 20.604 Rule 604. Designation of Member or Members to conduct the hearing in a legacy appeal. | VA | [61 FR 20451, May 7, 1996. Redesignated and amended at 84 FR 187, Jan. 18, 2019] | The Member or panel to whom a proceeding is assigned under Rule 106 (§ 20.106) shall conduct any hearing before the Board in connection with that proceeding. Where a proceeding has been assigned to a panel, the Chairman, or the Chairman's designee, shall designate one of the Members as the presiding Member. The Member or Members who conduct the hearing shall participate in making the final determination of the claim, subject to the exception in Rule 1004 (§ 20.1004) (relating to reconsideration of a decision). |
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