**§20.1304 Rule 1304. Request for change in representation, request for
personal hearing,**

**or submission of additional evidence following certification of**

**an appeal to the Board of Veterans' Appeals.**

\(a\) *Request for a change in representation, request for a personal
hearing, or submission of additional evidence within 90 days following
notification of certification and transfer of records*. An appellant and
his or her representative, if any, will be granted a period of 90 days
following the mailing of notice to them that an appeal has been
certified to the Board for appellate review and that the appellate
record has been transferred to the Board, or until the date the
appellate decision is promulgated by the Board of Veterans' Appeals,
whichever comes first, during which they may submit a request for a
personal hearing, additional evidence, or a request for a change in
representation. Any such request or additional evidence must be
submitted directly to the Board and not to the agency of original
jurisdiction. The date of mailing of the letter of notification will be
presumed to be the same as the date of that letter for purposes of
determining whether the request was timely made or the evidence was
timely submitted. Any evidence which is submitted at a hearing on appeal
which was requested during such period will be considered to have been
received during such period, even though the hearing may be held
following the expiration of the period. Any pertinent evidence submitted
by the appellant or representative is subject to the requirements of
paragraph (d) of this section if a simultaneously contested claim is
involved.

\(b\) *Subsequent request for a change in representation, request for a
personal hearing, or submission of additional evidence*.

\(1\) *General rule*. Subject to the exception in paragraph (b)(2) of
this section, following the expiration of the period described in
paragraph (a) of this section, the Board of Veterans' Appeals will not
accept a request for a change in representation, a request for a
personal hearing, or additional evidence except when the appellant
demonstrates on motion that there was good cause for the delay. Examples
of good cause include, but are not limited to, illness of the appellant
or the representative which precluded action during the period; death of
an individual representative; illness or incapacity of an individual
representative which renders it impractical for an appellant to continue
with him or her as representative; withdrawal of an individual
representative; the discovery of evidence that was not available prior
to the expiration of the period; and delay in transfer of the appellate
record to the Board which precluded timely action with respect to these
matters. Such motions must be in writing and must include the name of
the veteran; the name of the claimant or appellant if other than the
veteran (e.g., a veteran's survivor, a guardian, or a fiduciary
appointed to receive VA benefits on an individual's behalf); the
applicable Department of Veterans Affairs file number; and an
explanation of why the request for a change in representation, the
request for a personal hearing, or the submission of additional evidence
could not be accomplished in a timely manner. Such motions must be filed
at the following address: Director, Management and Administration (01E),
Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC
20420. Depending upon the ruling on the motion, action will be taken as
follows:

\(i\) *Good cause not shown*. If good cause is not shown, the request
for a change in representation, the request for a personal hearing, or
the additional evidence submitted will be referred to the agency of
original jurisdiction upon completion of the Board's action on the
pending appeal without action by the Board concerning the request or
additional evidence. Any personal hearing granted as a result of a
request so referred or any additional evidence so referred may be
treated by that agency as the basis for a reopened claim, if
appropriate. If the Board denied a benefit sought in the pending appeal
and any evidence so referred which was received prior to the date of the
Board's decision, or testimony presented at a hearing resulting from a
request for a hearing so referred, together with the evidence already of
record, is subsequently found to be the basis of an allowance of that
benefit, the effective date of the award will be the same as if the
benefit had been granted by the Board as a result of the appeal which
was pending at the time that the hearing request or additional evidence
was received.

\(ii\) *Good cause shown*. If good cause is shown, the request for a
change in representation or for a personal hearing will be honored. Any
pertinent evidence submitted by the appellant or representative will be
accepted, subject to the requirements of paragraph (d) of this section
if a simultaneously contested claim is involved.

\(2\) *If the Board obtains evidence or considers law not considered by
the agency of original jurisdiction*. The motion described in paragraph
(b)(1) of this section is not required to submit evidence in response to
the notice described in paragraph (a) or (b) of Rule 903 (paragraph (a)
or (b) of §20.903 of this part).

\(c\) *Consideration of additional evidence by the Board or by the
agency of original jurisdiction*. Any pertinent evidence submitted by
the appellant or representative which is accepted by the Board under the
provisions of this section, or is submitted by the appellant or
representative in response to a §20.903 of this part, notification, as
well as any such evidence referred to the Board by the agency of
original jurisdiction under §19.37(b) of this chapter, must be referred
to the agency of original jurisdiction for review, unless this
procedural right is waived by the appellant or representative, or unless
the Board determines that the benefit or benefits to which the evidence
relates may be fully allowed on appeal without such referral. Such a
waiver must be in writing or, if a hearing on appeal is conducted, the
waiver must be formally and clearly entered on the record orally at the
time of the hearing. Evidence is not pertinent if it does not relate to
or have a bearing on the appellate issue or issues.

\(d\) *Simultaneously contested claims*. In simultaneously contested
claims, if pertinent evidence which directly affects payment, or
potential payment, of the benefit sought is submitted by any claimant
and is accepted by the Board under the provisions of this section, the
substance of such evidence will be mailed to each of the other claimants
who will then have 60 days from the date of mailing of notice of the new
evidence within which to comment upon it and/or submit additional
evidence in rebuttal. For matters over which the Board does not have
original jurisdiction, a waiver of initial agency of original
jurisdiction consideration of pertinent additional evidence received by
the Board must be obtained from each claimant in accordance with
paragraph (c) of this section. The date of mailing of the letter of
notification of the new evidence will be presumed to be the same as the
date of that letter for purposes of determining whether such comment or
evidence in rebuttal was timely submitted. No further period will be
provided for response to such comment or rebuttal evidence.

\(e\) *Relationship to proceedings before the General Counsel to cancel
accreditation or to review the reasonableness of fees and expenses*. The
provisions of paragraphs (a), (b), and (d) of this section allowing
appellants to submit additional evidence do not apply in proceedings
before the General Counsel conducted under part 14 of this chapter to
cancel accreditation or to review fee agreements and expenses for
reasonableness. (Authority: 38 U.S.C. 7104, 7105, 7105A; 38 U.S.C. 5902,
5903, 5904)

\[57 FR 4109, Feb. 3, 1992, as amended at 60 FR 25851, May 15, 1995; 61
FR 20453, May 7, 1996; 67 FR 3105, Jan. 23, 2002; 67 FR 16023, Apr. 4,
2002; 69 FR 53808, Sept. 3, 2004; 73 FR 29880, May 22, 2008\]

**Supplement *Highlights* references**: 7(1), 14(3), 47(1), 64(1),
83(3).

*Next Section is §20.1400*

Reserved