[Federal Register Volume 69, Number 171 (Friday, September 3, 2004)]
[Rules and Regulations]
[Pages 53807-53808]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-19693]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Parts 19 and 20
RIN 2900-AL77
Board of Veterans' Appeals: Obtaining Evidence and Curing
Procedural Defects
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document adopts as final the proposed rule amending the
Appeals Regulations and Rules of Practice of the Board of Veterans'
Appeals (Board). The final rule removes the Board's authority to
develop evidence for initial consideration unless the appellant or
appellant's representative waives the right to initial review by the
agency of original jurisdiction of new evidence received by the Board.
The final rule also redefines ``agency of original jurisdiction'' to
refer to the Veterans Benefits Administration, Veterans Health
Administration, or National Cemetery Administration, depending upon the
origin of the appealed decision. This rulemaking is required to
simplify the appellate process and to conform to a recent decision from
the United States Court of Appeals for the Federal Circuit.
DATES: Effective date: October 4, 2004.
Applicability date: The amendments in this final rule will apply to
appeals pending before the Board on the effective date of this final
rule and to all appeals for which a notice of disagreement is filed on
or after the effective date of this final rule.
FOR FURTHER INFORMATION CONTACT: Steven L. Keller, Senior Deputy Vice
Chairman, Board of Veterans' Appeals (01C), Department of Veterans
Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202-565-5978).
SUPPLEMENTARY INFORMATION: The Board of Veterans' Appeals is the
component of the Department of Veterans Affairs (VA) in Washington, DC,
that decides appeals from denials of claims for veterans' benefits.
On December 11, 2003, VA published in the Federal Register (68 FR
69062), a notice of proposed rulemaking to remove the Board's authority
to develop evidence for initial consideration. The proposed rule would
require the Board, with certain exceptions, to remand an appeal to the
agency of original jurisdiction (AOJ) when there is a need to obtain
evidence, clarify the evidence, correct a procedural defect, or take
any other action deemed essential for a proper appellate decision. The
proposed rule would also provide that the Board may consider additional
evidence in the first instance, without remand to the AOJ, when the
appellant or appellant's representative waives this procedural right.
In addition, the proposed rule would redefine ``agency of original
jurisdiction'' to refer to the broad administrative body within VA that
governs the office from which the decision on appeal originated. As set
forth in the proposed rule, we are adopting the proposed rule as a
final rule without change.
We received one comment from a veterans' service organization
opposing the amendments in the proposed rule. We do not agree with the
commenter's objections.
The veterans' service organization suggests that the proposed rule
amending 38 CFR 20.903 and 20.1304(b)(2), insofar as it relates to the
Board's consideration of medical opinions obtained by the Board from
the Veterans Health Administration (VHA) pursuant to 38 CFR 20.901,
exceeds the Board's authority under 38 U.S.C. 7109 and, therefore, is
unlawful. This comment actually concerns an interim final rule amending
38 CFR 20.901 (specifically, section 20.901(a) authorizing Board
requests for medical opinions from the VHA), which was published on
July 23, 2001, in the Federal Register (66 FR 38158). This particular
comment is more appropriately addressed at length in the final
rulemaking notice amending 38 CFR 20.901, which has been published
recently in the Federal Register.
The commenter's statements specific to the amendments finalized in
this document concern 38 CFR 20.903 and 20.1304(b)(2). In 38 CFR
20.903(a), the second sentence is revised to require that a medical
opinion obtained by the Board be provided to the appellant and his or
her representative, if any, rather than to just the representative.
With regard to 38 CFR 20.1304(b)(2), the changes are not substantive
and involve removing references to ``paragraph (b) or (c)'' and
replacing those references with ``paragraph (a) or (b).'' Since these
changes are not relevant to the commenter's concerns, we decline to
make changes based on this comment. Accordingly, the proposed rule is
adopted as a final rule without change.
Unfunded Mandates
The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that
agencies prepare an assessment of anticipated costs and benefits before
developing any rule that may result in an expenditure by State, local,
or tribal governments, in the aggregate, or by the private sector of
$100 million or more in any given year. This proposed rule would have
no such effect on State, local, or tribal governments, or the private
sector.
Regulatory Flexibility Act
The Secretary hereby certifies that this final rule will not have a
significant economic impact on a substantial number of small entities
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. Only VA beneficiaries could be directly affected. Therefore,
pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial
and final regulatory flexibility analysis requirements of sections 603
and 604.
Paperwork Reduction Act
The Secretary hereby certifies that this final rule contains no
provisions constituting a collection of information under the Paperwork
Reduction Act (44 U.S.C. 3501-3521).
[[Page 53808]]
Executive Order 12866
This regulatory amendment has been reviewed by the Office of
Management and Budget under the provisions of Executive Order 12866.
List of Subjects in 38 CFR Parts 19 and 20
Administrative practice and procedure, Claims, Veterans.
Approved: May 3, 2004.
Anthony J. Principi,
Secretary of Veterans Affairs.
0
For the reasons set out in the preamble, 38 CFR parts 19 and 20 are
amended as set forth below:
PART 19--BOARD OF VETERANS' APPEALS: APPEALS REGULATIONS
0
1. The authority citation for part 19 continues to read as follows:
Authority: 38 U.S.C. 501(a), unless otherwise noted.
Subpart A--Operation of the Board of Veterans' Appeals
0
2. Section 19.9 is amended by revising the section heading and
paragraphs (a) and (b) to read as follows:
Sec. 19.9 Remand for further development.
(a) General. 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) Exceptions. A remand to the agency of original jurisdiction is
not necessary for the purposes of:
(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) Consideration of an appeal, in accordance with Sec. 20.903(b)
of this chapter, with respect to law not already considered by the
agency of original jurisdiction. This includes, but is not limited to,
statutes, regulations, and court decisions; or
(3) Reviewing additional evidence received by the Board, if,
pursuant to Sec. 20.1304(c) of this chapter, the appellant or the
appellant's representative waives the right to initial consideration by
the agency of original jurisdiction, or if the Board determines that
the benefit or benefits to which the evidence relates may be fully
allowed on appeal.
* * * * *
Subpart B--Appeals Processing by Agency of Original Jurisdiction
Sec. 19.38 [Amended]
0
3. Section 19.38 is amended by removing ``the Board and'' from the
third sentence.
PART 20--BOARD OF VETERANS' APPEALS: RULES OF PRACTICE
0
4. The authority citation for part 20 continues to read as follows:
Authority: 38 U.S.C. 501(a) and as noted in specific sections.
0
5. Section 20.3 is amended by revising paragraph (a) to read as
follows:
Sec. 20.3 Rule 3. Definitions.
* * * * *
(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.
* * * * *
0
6. Section 20.903 is amended by:
0
a. Revising the second sentence in paragraph (a);
0
b. Removing paragraph (b);
0
c. Redesignating paragraph (c) as paragraph (b); and
0
d. Revising the first sentence in newly redesignated paragraph (b).
The revisions read as follows:
Sec. 20.903 Rule 903. Notification of evidence secured and law to be
considered by the Board and opportunity for response.
(a) * * * 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. * * *
(b) * * * If, pursuant to Sec. 19.9(b)(2) of this chapter, the
Board intends to consider law not already considered by the agency of
original jurisdiction and such consideration could result in denial of
the appeal, the Board will notify the appellant and his or her
representative, if any, of its intent to do so and that such
consideration in the first instance by the Board could result in denial
of the appeal. * * *
0
7. Section 20.1304 is amended by:
0
a. In paragraphs (a) and (b)(1)(ii), removing ``paragraph (c)'' from
each, and adding, in each place, ``paragraph (d)''.
0
b. In paragraph (b)(2), removing ``paragraph (b) or (c)'' each place it
appears, and adding, in each place, ``paragraph (a) or (b)''.
0
c. Redesignating paragraph (c) as paragraph (d).
0
d. Adding new paragraph (c).
0
e. In newly designated paragraph (d), adding a new sentence immediately
after ``additional evidence in rebuttal.''
The additions read as follows:
Sec. 20.1304 Rule 1304. Request for change in representation, request
for personal hearing, or submission of additional evidence following
certification of an appeal to the Board of Veterans' Appeals.
* * * * *
(c) Consideration of additional evidence by the Board or by the
agency of original jurisdiction. Any pertinent evidence submitted by
the appellant or representative which is accepted by the Board under
the provisions of this section, or is submitted by the appellant or
representative in response to a Sec. 20.903 of this part,
notification, as well as any such evidence referred to the Board by the
agency of original jurisdiction under Sec. 19.37(b) of this chapter,
must be referred to the agency of original jurisdiction for review,
unless this procedural right is waived by the appellant or
representative, or unless the Board determines that the benefit or
benefits to which the evidence relates may be fully allowed on appeal
without such referral. Such a waiver must be in writing or, if a
hearing on appeal is conducted, the waiver must be formally and clearly
entered on the record orally at the time of the hearing. Evidence is
not pertinent if it does not relate to or have a bearing on the
appellate issue or issues.
(d) * * * For matters over which the Board does not have original
jurisdiction, a waiver of initial agency of original jurisdiction
consideration of pertinent additional evidence received by the Board
must be obtained from each claimant in accordance with paragraph (c) of
this section. * * *
[FR Doc. 04-19693 Filed 9-2-04; 8:45 am]
BILLING CODE 8320-01-P