[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: 38CFR20.711]

[Page 94-95]
 
            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 H--Hearings on Appeal
 
Sec. 20.711  Rule 711. Subpoenas.

    (a) General. An appellant, or his or her representative, may arrange 
for the production of any tangible evidence or the voluntary appearance 
of any witnesses desired. When necessary evidence cannot be obtained in 
any other reasonable way, the appellant, or his or her representative, 
may move that a subpoena be issued to compel the attendance of witnesses 
residing within 100 miles of the place where a hearing on appeal is to 
be held and/or to compel the production of tangible evidence. A subpoena 
will not be issued to compel the attendance of Department of Veterans 
Affairs adjudicatory personnel.
    (b) Contents of motion for subpoena. The motion for a subpoena must 
be in writing, must clearly show the name and address of each witness to 
be subpoenaed, must clearly identify all documentary or other tangible 
evidence to be produced, and must explain why the attendance of the 
witness and/or the production of the tangible evidence cannot be 
obtained without a subpoena.
    (c) Where filed. Motions for a subpoena must be filed with the 
Director, Management and Administration (01E), Board of Veterans' 
Appeals, 810 Vermont Avenue, NW, Washington, DC 20420.
    (d) When motion for subpoena is to be filed in cases involving a 
hearing on appeal. Motions for the issuance of a subpoena for the 
attendance of a witness, or the production of documents or other 
tangible evidence, at a hearing on appeal must be filed not later than 
30 days prior to the hearing date.
    (e) Ruling on motion for subpoena--(1) To whom assigned. The ruling 
on the motion will be made by the Member or panel of Members to whom the 
case is assigned. Where the case has not been assigned, the Chairman, or 
the Chairman's designee, will assign the case to a Member or panel who 
will then rule on the motion.
    (2) Procedure. If the motion is denied, the Member(s) ruling on the 
motion will issue an order to that effect which sets forth the reasons 
for the denial and will send copies to the moving party and his or her 
representative, if any. Granting the motion will be signified by 
completion of a VA Form 0714, ``Subpoena,'' if attendance of a witness 
is required, and/or VA Form 0713, ``Subpoena Duces Tecum,'' if 
production of tangible evidence is required. The completed form shall be 
signed by the Member ruling on the motion, or, where applicable, by any 
panel Member on behalf of the panel ruling on the motion, and served in 
accordance with paragraph (g) of this section.
    (f) Fees. Any person who is required to attend a hearing as a 
witness shall be allowed and paid the same fees and mileage as are paid 
witnesses in the district courts of the United States. A subpoena for a 
witness will not be issued or served unless the party on whose behalf 
the subpoena is issued submits a check in an amount equal to the fee for 
one day's attendance and the mileage allowed by law, made payable to the 
witness, as an attachment to the motion for the subpoena. Except

[[Page 95]]

for checks on the business accounts of attorneys-at-law, agents, and 
recognized service organizations, such checks must be in the form of 
certified checks or cashiers checks.
    (g) Service of subpoenas. The Board will serve the subpoena by 
certified mail, return receipt requested. The check for fees and mileage 
described in paragraph (f) of this section shall be mailed with the 
subpoena. The receipt, which must bear the signature of the witness or 
of the custodian of the tangible evidence, and a copy of the subpoena 
will be filed in the claims folder, loan guaranty folder, or other 
applicable Department of Veterans Affairs records folder.
    (h) Motion to quash or modify subpoena--(1) Filing procedure. Upon 
written motion of the party securing the subpoena, or of the person 
subpoenaed, the Board may quash or modify the subpoena if it is 
unreasonable and oppressive or for other good cause shown. Relief may 
include, but is not limited to, requiring the party who secured the 
subpoena to advance the reasonable cost of producing books, papers, or 
other tangible evidence. The motion must specify the relief sought and 
the reasons for requesting relief. Such motions must be filed at the 
address specified in paragraph (c) of this section within 10 days after 
mailing of the subpoena or the time specified in the subpoena for 
compliance, whichever is less. The motion may be accompanied by such 
supporting evidence as the moving party may choose to submit. It must be 
accompanied by a declaration showing:
    (i) That a copy of the motion, and any attachments thereto, were 
mailed to the party who secured the subpoena, or the person subpoenaed, 
as applicable;
    (ii) The date of mailing; and
    (iii) The address to which the copy was mailed.
    (2) Response. Not later than 10 days after the date that the motion 
was mailed to the responding party, that party may file a response to 
the motion at the address specified in paragraph (c) of this section. 
The response may be accompanied by such supporting evidence as the 
responding party may choose to submit. It must be accompanied by a 
declaration showing:
    (i) That a copy of the response, and any attachments thereto, were 
mailed to the moving party;
    (ii) The date of mailing; and
    (iii) The address to which the copy was mailed. If the subpoena 
involves testimony or the production of tangible evidence at a hearing 
before the Board and less than 30 days remain before the scheduled 
hearing date at the time the response is received by the Board, the 
Board may reschedule the hearing to permit disposition of the motion.
    (3) Ruling on the motion. The Member or panel to whom the case is 
assigned will issue an order disposing of the motion. Such order shall 
set forth the reasons for which a motion is either granted or denied. 
The order will be mailed to all parties to the motion. Where applicable, 
an order quashing a subpoena will require refund of any sum advanced for 
fees and mileage.
    (i) Disobedience. In case of disobedience to a subpoena issued by 
the Board, the Board will take such steps as may be necessary to invoke 
the aid of the appropriate district court of the United States in 
requiring the attendance of the witness and/or the production of the 
tangible evidence subpoenaed. A failure to obey the order of such a 
court may be punished by the court as a contempt thereof.

(Authority: 38 U.S.C. 5711, 5713, 7102(a))

(Authority: 38 U.S.C. 5711, 7102(a), 7107)

[57 FR 4109, Feb. 3, 1992, as amended at 61 FR 20452, May 7, 1996; 66 FR 
49538, Sept. 28, 2001]