Custom Federal Regulations Service™

**This is supplemental material**

**for Book A of your set of**

**Federal Regulations**

Title 38, Parts 0, 1, 2, 12,

14-16, 18--20, 25-26, 39-45, 48

*General*

**Veterans Benefits Administration**

Supplement No. 64

Covering period of *Federal Register* issues

through September 24, 2004

Copyright © 2004 Jonathan Publishing

**Need Assistance?**

Printing for all supplements is performed by the United States
Government

Printing Office. Distribution is the responsibility of the

VA Forms and Publications Depot. Accordingly:

Questions concerning **[missing supplements]{.smallcaps}**, need for
**[additional books]{.smallcaps}**, and other **[distribution
list]{.smallcaps}** issues for this loose-leaf service should be
directed to:

Department of Veterans Affairs

Veterans Benefits Administration

Directives, Forms and Records Staff

Mail Code: 20S5

810 Vermont Avenue, N.W.

Washington DC 20420

Telephone: 202/273-7080

Fax: 202/275-5947

Questions concerning the **[filing instructions]{.smallcaps}** for this
loose-leaf service,

or the reporting of **[substantive errors]{.smallcaps}** in the text,

may be directed to:

Jonathan Publishing

855 Yorks Crossing

Driftwood TX 78619

Telephone: 512/858-1225

Fax: 512/858-1230

E-mail: garyknight@ev1.net

Copyright © 2004 Jonathan Publishing

> **GENERAL INSTRUCTIONS**

Custom Federal Regulations Service™

**Supplemental Materials for *Book A***

**Code of Federal Regulations**

**Title 38, Parts 0, 1, 2, 12, 14-16, 18--20, 25-26, 39-45, 48**

***General***

**Veterans Benefits Administration**

**Supplement No. 64**

25 September 2004

Covering the period of Federal Register issues

through September 24, 2004

When **Book A** was originally prepared, it was current through final
regulations published in the *Federal Register* of 21 April 1992. These
supple­mental materials are designed to keep your regulations up to date.
You should file the attached pages immediately, and record the fact that
you did so on the *Supplement Filing Record* which begins on page A-8 of
Book A, *General*.

> **To ensure accuracy and timeliness of your materials,**
>
> **it is important that you follow these simple procedures:**
>
> 1\. Always file your supplemental materials immediately upon receipt.
>
> 2\. Before filing, always check the Supplement Filing Record (page
> A-8) to be sure that all prior supplements have been filed. If you are
> missing any supple­ments, contact the Veterans Benefits Administration
> at the address listed on page A-2.
>
> 3\. After filing, enter the relevant information on the Supplement
> Filing Record sheet (page A-8)---the date filed, name/initials of
> filer, and date through which the *Federal Register* is covered.
>
> 4\. If as a result of a failure to file, or an undelivered supplement,
> you have more than one supplement to file at a time, be certain to
> file them in chronological order, lower number first.
>
> 5\. Always retain the filing instructions (simply insert them at the
> back of the book) as a backup record of filing and for reference in
> case of a filing error.
>
> 6\. Be certain that you *permanently discard* any pages indicated for
> removal in the filing instructions in order to avoid confusion later.

To execute the filing instructions, simply remove *and throw away* the
pages listed under *Remove These Old Pages,* and replace them in each
case with the corres­pond­ing pages from this supplement listed under *Add
These New Pages*. Occasionally new pages will be added without removal
of any old material (reflecting new regulations), and occasionally old
pages will be removed with­out addition of any new material (reflecting
rescinded regulations)---in these cases the word *None* will appear in
the appropriate column.

> **FILING INSTRUCTIONS**

**Book A, Supplement No. 64**

**September 25, 2004**

*Remove these Add these Section(s)*

*[old pages]{.underline} [new pages]{.underline} [Affected]{.underline}*

**Do not file this supplement until you confirm that**

**all prior supplements have been filed**

###  A-35 to A-36 A-35 to A-36 Index to Book A 

19.[index]{.smallcaps}-1 to 19. [index]{.smallcaps} --2
19.[index]{.smallcaps}-1 to 19. [index]{.smallcaps} --2 Index to Part 19

**19.9-1 to 19.10-1 19.9-1 to 19.10-1 §19.9**

**19.34-1 to 19.38-1 19.34-1 to [19.38-2]{.underline} §19.38**

20.1-1 to 20.99-1 20.1-1 to 20.99-1 §20.3

20.902-2 to 20.903-1 20.902-2 to 20.903-1 §20.903

20.1304-1 to 20.1304-2 20.1304-1 to [20.1304-4]{.underline} §20.1304

## Be sure to complete the 

***Supplement Filing Record* (page A-8)**

**when you have finished filing this material.**

> **HIGHLIGHTS**

**Book A, Supplement No. 64**

**September 25, 2004**

***Supplement* Highlights *references***: Where substantive changes are
made in the text of regulations, the paragraphs of *Highlights* sections
are cited at the end of the relevant section of text. Thus, if you are
reading §3.263, you will see a note at the end of that section which
reads: "Supplement *Highlights* references---6(2)." This means that
paragraph 2 of the *Highlights* section in Supplement No. 6 contains
information about the changes made in §3.263. By keeping and filing the
*Highlights* sections, you will have a reference source explaining all
substantive changes in the text of the regulations.

***Supplement frequency***: This Book A (*General*) was originally
supplemented twice a year, in April and October. Beginning 1 August
1995, supplements will be issued *every month* during which a final rule
addition or modification is made to the parts of Title 38 covered by
this book. Supplements will be numbered consecutively as issued.

**Modifications in this supplement include the following:**

1\. On 3 September 2004, the VA published a final rule, effective 4
October 2004, to remove the Board of Veterans Appeals' 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;
and redefine *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. Changes:

• In §19.9, revised the section heading, and paragraphs (a) and (b);

• Revised §19.38;

• In §20.3, revised paragraph (a);

• In §20.903, revised paragraph (a), removed paragraph (b), redesignated
paragraph (c) as (b), and revised redesignated paragraph (b); and

• In §20.1304, revised paragraphs (a) and (b), redesignated paragraph
(c) as (d), added a new paragraph (c), and revised redesigned paragraph
(d).

# Part 19

# Board of Veterans' Appeals: Appeals Regulations

####  Subpart A --- Operation of the Board of Veterans' Appeals

19.1 Establishment of the Board 19.1-1

19.2 Composition of the Board; Titles 19.2-1

19.3 Assignment of proceedings 19.3-1

19.4 Principal functions of the Board 19.4-1

19.5 Criteria governing disposition of appeals 19.5-1

19.6 \[Reserved\]

19.7 The decision 19.7-1

19.8 Content of Board decision, remand, or order in simultaneously

contested claims 19.8-1

19.9 Remand for further development 19.9-1

19.10 \[Reserved\]

19.11 Reconsideration panel 19.11-1

19.12 Disqualification of Members 19.12-1

19.13 Delegation of authority to Chairman and Vice Chairman,

Board of Veterans' Appeals 19.13-1

19.14 Delegation of authority-Appeals Regulations 19.14-1

19.15--19.24 \[Reserved\]

####  Subpart B --- Appeals Processing by Agency of Original Jurisdiction

19.25 Notification by agency of original jurisdiction of right to appeal
19.25-1

19.26 Action by agency of original jurisdiction on Notice of
Disagreement 19.26-1

19.27 Adequacy of Notice of Disagreement questioned

within the agency of original jurisdiction 19.27-1

19.28 Determination that a Notice of Disagreement is inadequate

protested by claimant or representative 19.28-1

19.29 Statement of the Case 19.29-1

19.30 Furnishing the Statement of the Case and instructions

for filing a Substantive Appeal 19.30-1

19.31 Supplemental Statement of the Case 19.31-1

19.32 Closing of appeal for failure to respond to Statement of the Case
19.32-1

19.33 Timely filing of Notice of Disagreement or Substantive

Appeal questioned within the agency of original jurisdiction 19.33-1

19.34 Determination that Notice of Disagreement or Substantive Appeal

was not timely filed protested by claimant or representative 19.34-1

19.35 Certification of appeals 19.35-1

19.36 Notification of certification of appeal and transfer of appellate
record 19.36-1

19.37 Consideration of additional evidence received by the agency

of original jurisdiction after an appeal has been initiated 19.37-1

19.38 Action by agency of original jurisdiction when remand received
19.38-1

19.39--19.49 \[Reserved\]

**Subpart C --- Administrative Appeals**

19.50 Nature and form of administrative appeal 19.50-1

19.51 Officials authorized to file administrative appeals

and time limits for filing 19.51-1

19.52 Notification to claimant of filing of administrative appeal
19.52-1

19.53 Restriction as to change in payments pending determination

of administrative appeals 19.53-1

19.54--19.74 \[Reserved\]

**Subpart D --- Hearings Before the Board of Veterans' Appeals at
Department of**

**Veterans Affairs Field Facilities**

19.75 Field hearing docket 19.75-1

19.76 Notice of time and place of hearing before the Board of Veterans'

Appeals at Department of Veterans Affairs field facilities 19.76-1

19.77--19.99 \[Reserved\]

**Subpart E --- Simultaneously Contested Claims**

19.100 Notification of right to appeal in simultaneously

contested claims 19.100-1

19.101 Notice to contesting parties on receipt of Notice of

Disagreement in simultaneously contested claims 19.101-1

19.102 Notice of appeal to other contesting parties in simultaneously

contested claims 19.102-1

Appendix A to Part 19 --- Cross-References App.A-1

**Part 20**

**Board of Veterans' Appeals: Rules of Practice**

**Subpart A --- General**

20.1 Rule 1. Purpose and construction of Rules of Practice 20.1-1

20.2 Rule 2. Procedure in absence of specific Rule of Practice 20.2-1

20.3 Rule 3. Definitions 20.3-1

20.4--20.99 \[Reserved\]

**Subpart B --- The Board**

20.100 Rule 100. Name, business hours, and mailing address of the Board
20.100-1

20.101 Rule 101. Jurisdiction of the Board 20.101-1

20.102 Rule 102. Delegation of authority---Rules of Practice 20.102-1

20.103--20.199 \[Reserved\]

**Part 19 --- Board of Veterans' Appeals:**

**Appeals Regulations**

**Authority:** 38 U.S.C. 501(a), unless otherwise noted.

**Source:** 48 FR 6969, Feb. 17, 1983.

Revised 57 FR 4104, Feb. 3, 1992,

unless otherwise noted.

**--- Section Title Index ---**

**Subpart A --- Operation of the Board of Veterans' Appeals**

Assignment of proceedings 19.3-1

Board:

Composition of 19.2-1

Establishment of 19.1-1

Functions of, principal 19.4-1

Titles 19.2-1

Content of Board decision, remand, or order in simultaneously contested
claims 19.8-1

Criteria governing disposition of appeals 19.5-1

Decision 19.7-1

Delegation of authority---Appeals Regulations 19.14-1

Delegation of authority to Chairman and Vice Chairman,

Board of Veterans' Appeals 19.13-1

Members:

Disqualification of 19.12-1

Reconsideration panel 19.11-1

Remand for further development 19.9-1

**Subpart B --- Appeals Processing by Agency of Original Jurisdiction**

Action by agency of original jurisdiction on Notice of Disagreement
19.26-1

Action by agency of original jurisdiction when remand received 19.38-1

Adequacy of Notice of Disagreement questioned

within the agency of original jurisdiction 19.27-1

Certification of appeals 19.35-1

Closing of appeal for failure to respond to Statement of the Case
19.32-1

Consideration of additional evidence received by the agency

of original jurisdiction after an appeal has been initiated 19.37-1

**Subpart B --- Appeals Processing by Agency of Original Jurisdiction
(cont.)**

Determination that a Notice of Disagreement is inadequate

protested by claimant or representative 19.28-1

Determination that Notice of Disagreement or Substantive Appeal

was not timely filed protested by claimant or representative 19.34-1

Furnishing the Statement of the Case and instructions

for filing a Substantive Appeal 19.30-1

Notification by agency of original jurisdiction of right to appeal
19.25-1

Notification of certification of appeal and transfer of appellate record
19.36-1

Statement of the Case 19.29-1

Supplemental Statement of the Case 19.31-1

Timely filing of Notice of Disagreement or Substantive Appeal

questioned within the agency of original jurisdiction 19.33-1

**Subpart C --- Administrative Appeals**

Nature and form of administrative appeal 19.50-1

Notification to claimant of filing of administrative appeal 19.52-1

Officials authorized to file administrative appeals

and time limits for filing 19.51-1

Restriction as to change in payments pending determination

of administrative appeals 19.53-1

**Subpart D --- Hearings Before the Board of Veterans' Appeals at
Department of**

**Veterans Affairs Field Facilities**

Field hearing docket 19.75-1

Notice of time and place of hearing before the Board of Veterans'
Appeals

at Department of Veterans Affairs field facilities 19.76-1

**Subpart E --- Simultaneously Contested Claims**

Notice of appeal to other contesting parties in simultaneously

contested claims 19.102-1

Notice to contesting parties on receipt of Notice of

Disagreement in simultaneously contested claims 19.101-1

Notification of right to appeal in simultaneously

contested claims 19.100-1

Appendix A to Part 19 --- Cross-References App.A-1

**§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 §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 §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.

\(c\) *Scope*. This section does not apply to:

> \(1\) The Board's request for an opinion under Rule 901 (§20.901 of
> this chapter);
>
> \(2\) The Board's supplementation of the record with a recognized
> medical treatise; and

\(3\) Matters over which the Board has original jurisdiction described
in Rules 609 and 610 (§§20.609 and 20.610 of this chapter). (Authority:
38 U.S.C. 7102, 7103(c), 7104(a)).

\[48 FR 6969, Feb. 17, 1983, as amended at 57 FR 4104, Feb. 3, 1992; 61
FR 20449, May 7, 1996; 62 FR 52503, Oct. 8, 1997; 67 FR 3104, Jan. 23,
2002; 69 FR 53808, Sept. 3, 2004\]

**Supplement *Highlights* references**: 14(3), 24(2), 47(1), 64(1).

**§19.10** \[Reserved\]

**§19.34 Determination that Notice of Disagreement or Substantive Appeal
was not timely filed protested by claimant or representative.**

Whether a Notice of Disagreement or Substantive Appeal has been filed on
time is an appealable issue. If the claimant or his or her
representative protests an adverse determination made by the agency of
original jurisdiction with respect to timely filing of the Notice of
Disagreement or Substantive Appeal, the claimant will be furnished a
Statement of the Case. (Authority: 38 U.S.C. 7105)

**§19.35 Certification of appeals.**

Following receipt of a timely Substantive Appeal, the agency of original
jurisdiction will certify the case to the Board of Veterans' Appeals.
Certification is accomplished by the completion of VA Form 8,
*Certification of Appeal*. The certification is used for administrative
purposes and does not serve to either confer or deprive the Board of
Veterans' Appeals of jurisdiction over an issue. (Authority: 38 U.S.C.
7105)

\[48 FR 6969, Feb. 17, 1983, as amended at 57 FR 4104, Feb. 3, 1992; 61
FR 20449, May 7, 1996; 66 FR 53339, Oct. 22, 2001\]

**Supplement *Highlights* references**: 14(3), 45(3).

**§19.36 Notification of certification of appeal and transfer of
appellate record.**

When an appeal is certified to the Board of Veterans' Appeals for
appellate review and the appellate record is transferred to the Board,
the appellant and his or her representative, if any, will be notified in
writing of the certification and transfer and of the time limit for
requesting a change in representation, for requesting a personal
hearing, and for submitting additional evidence described in Rule of
Practice 1304 (§20.1304 of this chapter). (Authority: 38 U.S.C. 7105)

**§19.37 Consideration of additional evidence received by the agency of
original jurisdiction after an appeal has been initiated.**

\(a\) *Evidence received prior to transfer of records to Board of
Veterans' Appeals*. Evidence received by the agency of original
jurisdiction prior to transfer of the records to the Board of Veterans'
Appeals after an appeal has been initiated (including evidence received
after certification has been completed) will be referred to the
appropriate rating or authorization activity for review and disposition.
If the Statement of the Case and any prior Supplemental Statements of
the Case were prepared before the receipt of the additional evidence, a
Supplemental Statement of the Case will be furnished to the appellant
and his or her representative as provided in §19.31 of this part, unless
the additional evidence received duplicates evidence previously of
record which was discussed in the Statement of the Case or a prior
Supplemental Statement of the Case or the additional evidence is not
relevant to the issue, or issues, on appeal.

\(b\) *Evidence received after transfer of records to the Board of
Veterans' Appeals*. Additional evidence received by the agency of
original jurisdiction after the records have been transferred to the
Board of Veterans' Appeals for appellate consideration will be forwarded
to the Board if it has a bearing on the appellate issue or issues. The
Board will then determine what action is required with respect to the
additional evidence. (Authority: 38 U.S.C. 7105(d)(1))

**§19.38 Action by agency of original jurisdiction when remand
received.**

When a case is remanded by the Board of Veterans' Appeals, the agency of
original jurisdiction will complete the additional development of the
evidence or procedural development required. Following completion of the
development, the case will be reviewed to determine whether the
additional development, together with the evidence which was previously
of record, supports the allowance of all benefits sought on appeal. If
so, the appellant and his or her representative, if any, will be
promptly informed. If any benefits sought on appeal remain denied
following this review, the agency of original jurisdiction will issue a
Supplemental Statement of the Case concerning the additional development
pertaining to those issues in accordance with the provisions of §19.31
of this part. Following the 60-day period allowed for a response to the
Supplemental Statement of the Case pursuant to Rule of Practice 302,
paragraph (c) (§20.302(c) of this chapter), the case will be returned to
the Board for further appellate processing unless the appeal is
withdrawn or review of the response to the Supplemental Statement of the
Case results in the allowance of all benefits sought on appeal. Remanded
cases will not be closed for failure to respond to the Supplemental
Statement of the Case. (Authority: 38 U.S.C. 7105(d)(1))

\[48 FR 6969, Feb. 17, 1983, as amended at 57 FR 4104, Feb. 3, 1992; 69
FR 53808, Sept. 3, 2004\]

**Supplement *Highlights* reference**: 64(1)

Reserved

**Part 20**

**Board of Veterans' Appeals: Rules of Practice**

**Authority**: 38 U.S.C. 501(a) and as noted in specific sections.

**Source:** 57 Fed. Reg. 4109, Feb. 3, 1992, unless otherwise indicated.

**Subpart A --- General**

**§20.1 Rule 1. Purpose and construction of Rules of Practice.**

\(a\) *Purpose*. These rules establish the practices and procedures
governing appeals to the Board of Veterans' Appeals. (Authority: 38
U.S.C. 501(a), 7102, 7104)

\(b\) *Construction*. These rules are to be construed to secure a just
and speedy decision in every appeal. (Authority: 38 U.S.C. 501(a), 5107,
7104)

**§20.2 Rule 2. Procedure in absence of specific Rule of Practice.**

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. (Authority:
38 U.S.C. 501(a), 512(a), 7102, 7104)

**§20.3 Rule 3. Definitions.**

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 Rule 604
(§20.604 of this part). It does not include representatives recognized
under Rules 602, 603, or 605 (§20.602, 20.603, or §20.605 of this part).

\(c\) *Appellant* means a claimant who has initiated an appeal to the
Board of Veterans' Appeals by filing a Notice of Disagreement pursuant
to the provisions of 38 U.S.C. 7105.

\(d\) *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 application made under title 38, United States Code,
and implementing directives for entitlement to Department of Veterans
Affairs benefits or for the continuation or increase of such benefits,
or the defense of a proposed agency adverse action concerning benefits.

\(g\) *Claimant* means a person who has filed a claim, as defined by
paragraph (f) of this section.

\(h\) *Electronic hearing* means a hearing on appeal in which an
appellant or a representative participates, through voice transmission
or through picture and voice transmission, by electronic or other means,
in a hearing with a Member or Members sitting at the Board's principal
location in Washington, DC.

\(i\) *Hearing on appeal* means a hearing conducted after a Notice of
Disagreement has been filed in which argument and/or testimony is
presented concerning the determination, or determinations, by the agency
of original jurisdiction being appealed.

\(j\) *Law student* means an individual pursuing a Juris Doctor or
equivalent degree at a school approved by a recognized accrediting
association.

\(k\) *Legal intern* means a graduate of a law school, which has been
approved by a recognized accrediting association, who has not yet been
admitted to a State bar.

\(l\) *Motion* means a request that the Board rule on some question
which is subsidiary to the ultimate decision on the outcome of an
appeal. For example, the questions of whether a representative's fees
are reasonable or whether additional evidence may be submitted more than
90 days after certification of an appeal to the Board are raised by
motion (see Rule 609, paragraph (i), and Rule 1304, paragraph (b)
§§20.609(i) and 20.1304(b) of this part). Unless raised orally at a
personal hearing before Members of the Board, motions for consideration
by the Board must be made in writing. No formal type of document is
required. The motion may be in the form of a letter which contains the
necessary information.

\(m\) *Paralegal* means a graduate of a course of paralegal instruction
given by a school which has been approved by a recognized accrediting
association, or an individual who has equivalent legal experience.

\(n\) *Past-due benefits* means a nonrecurring payment resulting from a
benefit, or benefits, granted on appeal or awarded on the basis of a
claim reopened after a denial by the Board of Veterans' Appeals or the
lump sum payment which represents the total amount of recurring cash
payments which accrued between the effective date of the award, as
determined by applicable laws and regulations, and the date of the grant
of the benefit by the agency of original jurisdiction, the Board of
Veterans' Appeals, or an appellate court.

\(o\) *Presiding Member* means that Member of the Board who presides
over a hearing, whether conducted as a single Member or panel hearing.

\(p\) *Simultaneously contested claim* refers to the situation in which
the allowance of one claim results in the disallowance of another claim
involving the same benefit or the allowance of one claim results in the
payment of a lesser benefit to another claimant.

\(q\) *State* includes any State, possession, territory, or Commonwealth
of the United States, as well as the District of Columbia. (Authority:
38 U.S.C. 501(a))

\[57 FR 4109, Feb. 3, 1992, as amended at 61 FR 20449, May 7, 1996; 67
FR 36104, May 23, 2002; 69 FR 53808, Sept. 3, 2004\]

**Supplement *Highlights* references**: 14(3), 49(1), 64(1).

**§§20.4--20.99 \[Reserved\]**

Reserved

**§20.903 Rule 903. Notification of evidence secured and law to be
considered by the Board and opportunity for response.**

\(a\) *If the Board obtains a legal or medical opinion*. If the Board
requests an opinion pursuant to Rule 901 (§20.901 of this part), 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 considers law not already considered by the agency
of original jurisdiction*. If, pursuant to §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. The notice from the Board will contain a copy or summary
of the law to be considered. A period of 60 days from the date the Board
furnishes the notice will be allowed for response, which may include the
submission of relevant evidence or argument. The date the Board
furnishes the notice will be presumed to be the same as the date of the
letter that accompanies the notice for purposes of determining whether a
response was timely filed. No notice is required under this paragraph if
the Board intends to grant the benefit being sought or if the appellant
or the appellant's representative has advanced or otherwise argued the
applicability of the law in question. (Authority: 38 U.S.C. 7104(a),
7109(c)).

\[57 FR 4109, Feb. 3, 1992, as amended at 67 FR 3105, Jan. 23, 2002; 69
FR 53808, Sept. 3, 2004\]

**Supplement *Highlights* references**: 47(1), 64(1).

**§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. (Authority:
38 U.S.C. 7104, 7105, 7105A)

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

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

*Next Section is §20.1400*

Reserved