[Code of Federal Regulations]
[Title 38, Volume 2]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 38CFR20.101]

[Page 73-75]
 
            TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF
 
          CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS (CONTINUED)
 
PART 20--BOARD OF VETERANS' APPEALS: RULES OF PRACTICE--Table of Contents
 
                          Subpart B--The Board
 
Sec. 20.101  Rule 101. Jurisdiction of the Board.

    (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. In its 
decisions, the Board is bound by applicable statutes, the regulations of 
the Department of Veterans Affairs and precedent opinions of the General 
Counsel of the Department of Veterans Affairs. 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 death 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).

[[Page 74]]

    (15) Payment or reimbursement for unauthorized medical expenses (38 
U.S.C. 1728).
    (16) Burial benefits and burial in National Cemeteries (38 U.S.C. 
chapters 23 and 24).
    (17) Benefits for persons disabled by medical treatment or 
vocational rehabilitation (38 U.S.C. 1151).
    (18) Basic eligibility for home, condominium and mobile home loans 
as well as waiver of payment of loan guaranty indebtedness (38 U.S.C. 
chapter 37, 38 U.S.C. 5302).
    (19) Waiver of recovery of overpayments (38 U.S.C. 5302).
    (20) Forfeiture of rights, claims or benefits for fraud, treason, or 
subversive activities (38 U.S.C. 6102-6105).
    (21) Character of discharge (38 U.S.C. 5303).
    (22) Determinations as to duty status (38 U.S.C. 101(21)-(24)).
    (23) Determinations as to marital status (38 U.S.C. 101(3), 103).
    (24) Determination of dependency status as parent or child (38 
U.S.C. 101(4), (5)).
    (25) Validity of claims and effective dates of benefits (38 U.S.C. 
chapter 51).
    (26) Apportionment of benefits (38 U.S.C. 5307).
    (27) Payment of benefits while a veteran is hospitalized and 
questions regarding an estate of an incompetent institutionalized 
veteran (38 U.S.C. 5503).
    (28) Benefits for surviving spouses and children of deceased 
veterans under Public Law 97-377, section 156 (38 CFR 3.812(d)).
    (29) Eligibility for automobile and automobile adaptive equipment 
assistance (38 U.S.C. chapter 39).
    (b) Appellate jurisdiction of determinations of the Veterans Health 
Administration. The Board's appellate jurisdiction extends to questions 
of eligibility for hospitalization, outpatient treatment, and nursing 
home and domiciliary care; for devices such as prostheses, canes, 
wheelchairs, back braces, orthopedic shoes, and similar appliances; and 
for other benefits administered by the Veterans Health Administration. 
Medical determinations, such as determinations of the need for and 
appropriateness of specific types of medical care and treatment for an 
individual, are not adjudicative matters and are beyond the Board's 
jurisdiction. Typical examples of these issues are whether a particular 
drug should be prescribed, whether a specific type of physiotherapy 
should be ordered, and similar judgmental treatment decisions with which 
an attending physician may be faced.
    (c) Appeals as to jurisdiction. All claimants have the right to 
appeal a determination made by the agency of original jurisdiction that 
the Board does not have jurisdictional authority to review a particular 
case. Jurisdictional questions which a claimant may appeal, include, but 
are not limited to, questions relating to the timely filing and adequacy 
of the Notice of Disagreement and the Substantive Appeal.
    (d) Authority to determine jurisdiction. The Board may address 
questions pertaining to its jurisdictional authority to review a 
particular case, including, but not limited to, determining whether 
Notices of Disagreement and Substantive Appeals are adequate and timely, 
at any stage in a proceeding before it, regardless of whether the agency 
of original jurisdiction addressed such question(s). When the Board, on 
its own initiative, raises a question as to a potential jurisdictional 
defect, all parties to the proceeding and their representative(s), if 
any, will be given notice of the potential jurisdictional defect(s) and 
granted a period of 60 days following the date on which such notice is 
mailed to present written argument and additional evidence relevant to 
jurisdiction and to request a hearing to present oral argument on the 
jurisdictional question(s). The date of mailing of the notice will be 
presumed to be the same as the date stamped on the letter of 
notification. The Board may dismiss any case over which it determines it 
does not have jurisdiction.
    (e) Application of 38 CFR 19.9 and 20.1304. Section 19.9 of this 
chapter shall not apply to proceedings to determine the Board's own 
jurisdiction. However, the Board may remand a case to an agency of 
original jurisdiction in order to obtain assistance in securing evidence 
of jurisdictional facts. The time restrictions on requesting a hearing 
and submitting additional evidence in Sec. 20.1304 of this part do not 
apply to

[[Page 75]]

a hearing requested, or evidence submitted, under paragraph (d) of this 
section.

(Authority: 38 U.S.C. 511(a), 7104, 7105, 7108)

[57 FR 4109, Feb. 3, 1992, as amended at 66 FR 53339, Oct. 22, 2001]