17544 Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Rules and Regulations 

Civil Justice Reform 

This rule meets applicable standards 

in sections 3(a) and 3(b)(2) of Executive 

Order 12988, Civil Justice Reform, to 

minimize litigation, eliminate 

ambiguity, and reduce burden. 

Protection of Children 

We have analyzed this rule under 

Executive Order 13045, Protection of 

Children from Environmental Health 

Risks and Safety Risks. This rule is not 

an economically significant rule and 

would not create an environmental risk 

to health or risk to safety that might 

disproportionately affect children. 

Indian Tribal Governments 

This rule does not have tribal 

implications under Executive Order 

13175, Consultation and Coordination 

with Indian Tribal Governments, 

because it does not have a substantial 

direct effect on one or more Indian 

tribes, on the relationship between the 

Federal Government and Indian tribes, 

or on the distribution of power and 

responsibilities between the Federal 

Government and Indian tribes. 

Energy Effects 

We have analyzed this rule under 

Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. We have 

determined that it is not a ‘‘significant 

energy action’’ under that order because 

it is not a ‘‘significant regulatory action’’ 

under Executive Order 12866 and is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. The Administrator of the Office 

of Information and Regulatory Affairs 

has not designated it as a significant 

energy action. Therefore, it does not 

require a Statement of Energy Effects 

under Executive Order 13211. 

Technical Standards 

The National Technology Transfer 

and Advancement Act (NTTAA) (15 

U.S.C. 272 note) directs agencies to use 

voluntary consensus standards in their 

regulatory activities unless the agency 

provides Congress, through the Office of 

Management and Budget, with an 

explanation of why using these 

standards would be inconsistent with 

applicable law or otherwise impractical. 

Voluntary consensus standards are 

technical standards (e.g., specifications 

of materials, performance, design, or 

operation; test methods; sampling 

procedures; and related management 

systems practices) that are developed or 

adopted by voluntary consensus 

standards bodies. 

This rule does not use technical 

standards. Therefore, we did not 

consider the use of voluntary consensus 

standards. 

Environment 

We have analyzed this rule under 

Department of Homeland Security 

Management Directive 023–01, and 

Commandant Instruction M16475.lD, 

which guides the Coast Guard in 

complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have concluded that this action is one 

of a category of actions which do not 

individually or cumulatively have a 

significant effect on the human 

environment. This rule is categorically 

excluded under figure 2–1, paragraph 

(32)(e), of the Instruction. 

Under figure 2–1, paragraph (32)(e), of 

the Instruction, an environmental 

analysis checklist and a categorical 

exclusion determination are not 

required for this rule. 

List of Subjects in 33 CFR Part 117 

Bridges. 

For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR part 117 as follows: 

PART 117—DRAWBRIDGE 

OPERATION REGULATIONS 

■ 1. The authority citation for part 117 

continues to read as follows: 

Authority: 33 U.S.C. 499; 33 CFR 1.05–1; 

Department of Homeland Security Delegation 

No. 0170.1. 

■ 2. Add § 117.664 to read as follows: 

§ 117.664 Rainy River, Rainy Lake and 

their tributaries. 

The draw of the Canadian National 

Bridge, mile 85.0, at Rainer, shall open 

on signal; except that, from October 16 

to April 30, the draw shall open on 

signal if at least 12-hours advance notice 

is provided. The commercial phone 

number to provide advance notice shall 

be posted on the bridge so that it is 

plainly visible to vessel operators 

approaching the up or downstream side 

of the bridge. The owners of the bridge 

shall maintain clearance gauges in 

accordance with 33 CFR 118.160 of this 

chapter. 

Dated: March 21, 2011. 

M.N. Parks, 

Rear Admiral, U.S. Coast Guard, Commander, 

Ninth Coast Guard District. 

[FR Doc. 2011–7466 Filed 3–29–11; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Parts 19 and 20 

RIN 2900–AN34 

Board of Veterans’ Appeals: Remand 

or Referral for Further Action; 

Notification of Evidence Secured by 

the Board and Opportunity for 

Response 

AGENCY: Department of Veterans Affairs. 

ACTION: Final rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) is amending the Appeals 

Regulations of the Board of Veterans’ 

Appeals (Board) to articulate the Board’s 

practice of referring unadjudicated 

claims to the Agency of Original 

Jurisdiction (AOJ) for appropriate 

action, and to describe when it is 

appropriate for the Board to remand a 

claim to the AOJ for the limited purpose 

of issuing a Statement of the Case (SOC). 

We are also amending the Board’s Rules 

of Practice to outline the procedures the 

Board must follow when supplementing 

the record with a recognized medical 

treatise, and to remove the notice 

procedures the Board must currently 

follow when considering law not 

considered by the AOJ. The purpose of 

these amendments is to codify existing 

practices derived from caselaw, enhance 

efficiency, and provide guidance and 

clarification. 

DATES: Effective Date: The final rule is 

effective April 29, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Laura H. Eskenazi, Principal Deputy 

Vice Chairman, Board of Veterans’ 

Appeals (012), Department of Veterans 

Affairs, 810 Vermont Avenue, NW., 

Washington, DC 20420, (202) 461–8078. 

(This is not a toll-free number.) 

SUPPLEMENTARY INFORMATION: On 

December 18, 2009, VA published in the 

Federal Register (74 FR 67149) a Notice 

of Proposed Rulemaking (NPRM) that 

proposed to amend 38 CFR 19.9 to 

articulate the Board’s practice of 

referring unadjudicated claims to the 

AOJ for appropriate action and to define 

when the Board can remand a claim to 

the AOJ for the limited purpose of 

issuing an SOC. The NPRM also 

proposed to amend 38 CFR 20.903 to 

codify the notice procedures the Board 

must follow when supplementing the 

record with a recognized medical 

treatise, and to eliminate the notice 

procedures the Board must currently 

follow when considering law not 

previously considered by the AOJ. 

Interested persons were invited to 

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Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Rules and Regulations 17545 

submit written comments on or before 

February 16, 2010. 

We received two comments on the 

proposed rule. One commenter was 

fully supportive of all aspects of the 

proposal. The second commenter 

expressed concerns with various parts 

of the NPRM, the specifics of which will 

be discussed in greater detail below. 

Based on the rationale set forth in this 

document and in the NPRM, VA adopts 

the proposed rule as final with one 

minor clarification. 

A. Referral of Unadjudicated Claims 

We proposed to amend 38 CFR 19.9(b) 

to articulate the Board’s practice of 

referring to the AOJ for appropriate 

action unadjudicated claims that have 

been reasonably raised by the record, 

except for claims over which the Board 

has original jurisdiction. One 

commenter voiced support for the 

referral practice in general, but 

expressed concern that the Board will 

make ‘‘many unnecessary, unjustified 

and time-consuming referrals’’ unless 

Board attorneys and Veterans Law 

Judges are provided with written 

guidance and training on what 

constitutes a claim and when it is 

appropriate to refer a claim to the AOJ. 

The commenter specifically suggested 

that the Board should provide training 

on the difference between separate 

claims and separate theories of 

entitlement. 

As explained in the NPRM, the 

purpose of this rulemaking is to provide 

guidance as to what action the Board 

must take when it discovers an 

unadjudicated claim in the record. 

Questions regarding the Board’s training 

practices and when filings must be 

interpreted as raising a new claim are 

outside the scope of this rulemaking. 

We agree with the commenter that the 

training of Board employees is 

extremely important. The Board has an 

established training office that organizes 

regular training sessions for its 

employees on a wide range of topics in 

the constantly-evolving field of 

veterans’ benefits law. The Board fully 

intends to continue training its 

employees on all aspects of veterans’ 

law, including matters addressed in this 

rulemaking. We also emphasize that the 

Board has referred unadjudicated claims 

for many years, and implementation of 

this final rule will not result in any 

deviation from current Board practice. 

The final rule we are adopting by this 

rulemaking merely codifies the Board’s 

referral practice in regulation. We 

therefore make no changes to the 

proposed rule based on this comment. 

B. Remand for Issuance of an SOC 

Proposed 38 CFR 19.9(c) stated that in 

situations where a claimant timely filed 

a Notice of Disagreement (NOD) with a 

determination of the AOJ, but the record 

does not reflect that the AOJ 

subsequently granted the claim in full or 

furnished the claimant with an SOC, the 

Board shall remand the claim to the AOJ 

with instructions to prepare and issue 

an SOC. See generally Manlincon v. 

West, 12 Vet. App. 238 (1999). While 

agreeing with the substance of the 

proposed regulatory amendment, one 

commenter expressed concern that ‘‘the 

statement at 74 FR 67151 [of the 

Preamble] that the claimant must file 

another timely Substantive Appeal to 

perfect the appeal is contrary to law’’ 

(emphasis added). The commenter cited 

to Hamilton v. Brown, 39 F.3d 1574, 

1585 (Fed. Cir. 1994), as support for the 

proposition that a claim that has been 

remanded to the AOJ will be 

‘‘automatically returned to the Board for 

further processing if full relief is not 

awarded by the [AOJ] on remand.’’ See 

Hamilton, 39 F.3d at 1584–85 (citing 38 

CFR 19.182 (1988) (now codified in 38 

CFR 19.9, 19.31, and 19.38)). 

We respectfully disagree with the 

commenter as the Preamble does not 

state that a claimant must file another 

Substantive Appeal after issuance of an 

SOC. The portion of the Preamble 

referenced by the commenter states the 

following: ‘‘The appeal initiated by the 

filing of the NOD will be subsequently 

returned to the Board only if, after the 

AOJ issues the SOC, the appellant files 

a timely Substantive Appeal that 

perfects the appeal to the Board.’’ 

NPRM, 74 FR at 67151. This sentence 

explains that the situation addressed in 

proposed § 19.9(c) is one where a 

claimant has not had an opportunity to 

file a Substantive Appeal on the issue 

being remanded because the AOJ has 

not yet issued an SOC. Therefore, the 

commenter’s characterization of 

proposed § 19.9(c) as requiring the filing 

of a second Substantive Appeal is 

simply incorrect. Rather, the law is well 

settled that an appeal to the Board 

consists of a timely filed NOD in writing 

and, after an SOC has been furnished, 

the submission of a timely filed 

Substantive Appeal. 38 U.S.C. 7105(a); 

38 CFR 20.200. Accordingly, a matter 

that is remanded pursuant to proposed 

§ 19.9(c) for issuance of an SOC may be 

returned to the Board only if a timely 

Substantive Appeal is filed, following 

the issuance of the SOC, for purposes of 

perfecting the appeal of the matter to the 

Board. 

The commenter’s reliance on 

Hamilton is also misplaced. Unlike 

proposed § 19.9(c), Hamilton did not 

address remand by the Board for the 

limited purpose of issuing an SOC. 

Hamilton instead addressed a remand 

for evidentiary development in an 

appeal that had already been perfected 

by the timely filing of a Substantive 

Appeal. Hamilton, 39 F.3d at 1577–78. 

In Hamilton, the United States Court of 

Appeals for the Federal Circuit (Federal 

Circuit) specifically discussed whether a 

statement filed in response to a 

Supplemental SOC (SSOC) could be 

considered an NOD. Hamilton, 39 F.3d 

at 1584–85. The Federal Circuit 

concluded that, since an SSOC was not 

an initial determination made by the 

AOJ, such a statement could not be 

considered an NOD, even if it raised 

new issues in connection with the 

claim. Id. at 1584. The Federal Circuit 

did not discuss whether a claimant 

needed to submit multiple Substantive 

Appeals; it addressed whether multiple 

NODs could be filed in one claim. Thus, 

the situation in Hamilton was markedly 

different from that addressed by 

proposed § 19.9(c), which concerns the 

Board’s remand of a claim to the AOJ for 

issuance of an SOC so an appellant can 

have an opportunity to file a single 

Substantive Appeal necessary to 

complete the appeal to the Board. We 

accordingly make no change to the 

proposed rule based on this comment. 

We are, however, making one minor 

revision to proposed § 19.9(c). In the 

NPRM, we proposed the following rule 

language: ‘‘In cases before the Board in 

which a claimant has timely filed a 

Notice of Disagreement with a 

determination of the agency of original 

jurisdiction on a claim, but the record 

does not reflect that the agency of 

original jurisdiction subsequently 

granted the claim in full or furnished 

the claimant with a Statement of the 

Case, the Board shall remand the claim 

to the agency of original jurisdiction 

with instructions to prepare and issue a 

Statement of the Case * * * .’’ 74 FR at 

67154. Upon further consideration of 

this language, we have determined that 

the use of the disjunctive ‘‘or’’ between 

the phrase ‘‘but the record does not 

reflect that the [AOJ] subsequently 

granted the claim in full’’ and the phrase 

‘‘furnished the claimant with a[n SOC]’’ 

could cause confusion as to the possible 

situations under which the Board must 

remand a case pursuant to § 19.9(c). 

Taken literally, the use of the 

disjunctive ‘‘or’’ could lead to the 

misinterpretation that the Board is 

required to remand a case in situations 

where the AOJ has not granted the claim 

in full following the filing of an NOD, 

but where an SOC has already been 

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17546 Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Rules and Regulations 

issued. This outcome was not our intent 

in issuing proposed § 19.9(c). For 

obvious reasons, if an SOC has already 

been issued on a claim subsequent to 

the NOD, the Board would not be 

required to remand for issuance of 

another SOC. To avoid this incorrect 

construction, we have slightly reworded 

§ 19.9(c) and replaced the disjunctive 

‘‘or’’ with the conjunctive ‘‘and’’ to 

clarify that the Board will only be 

required to remand a claim to the AOJ 

for issuance of an SOC following the 

timely filing of an NOD when: (1) the 

AOJ has not subsequently granted the 

claim in full, and (2) the AOJ has not 

furnished the claimant with an SOC. We 

believe this minor revision more clearly 

describes when the Board will remand 

for issuance of an SOC pursuant to 

§ 19.9(c). 

C. Thurber Procedures 

We proposed to amend 38 CFR 

20.903(b) to clarify the notice 

procedures the Board must follow when 

it supplements the record with a 

recognized medical treatise. One 

commenter objected to the proposed 

language which stated that, as part of 

the notice procedures, the Board will 

inform appellants that it ‘‘will consider 

such recognized medical treatise in the 

adjudication of the appeal.’’ The 

commenter believed that this language 

does not provide a claimant and his or 

her representative with the requisite 

notice regarding the reliance proposed 

to be placed on the treatise, and thus, 

does not comply with the notice 

requirements outlined in Thurber v. 

Brown, 5 Vet. App. 119 (1993). 

We respectfully disagree with this 

comment. As explained in the NPRM, 

we chose not to use the term ‘‘reliance’’ 

in § 20.903(b) because such language 

could be misconstrued to suggest that 

the Board has already reached a 

preliminary decision on a claim. NPRM, 

74 FR at 67152. We do not interpret 

Thurber as requiring the Board to preadjudicate a claim before following the 

requisite notice procedures. Id. This 

interpretation is in accordance with 

other areas of VA adjudicatory 

procedure that do not require the 

Secretary to rule on the probative value 

of evidence prior to reaching a decision 

on the merits. For example, the United 

States Court of Appeals for Veterans 

Claims (Veterans Court) has interpreted 

VA notice requirements under 38 U.S.C. 

5103(a) as not imposing upon the 

Secretary a ‘‘legal obligation to rule on 

the probative value of information and 

evidence presented in connection with 

a claim prior to rendering a decision on 

the merits of the claim itself.’’ Locklear 

v. Nicholson, 20 Vet. App. 410, 415–16 

(2006) (noting that the VA adjudication 

process is ‘‘longitudinal and sequential’’ 

and that the gathering of information 

and evidence is meant to precede VA 

analysis and adjudication). In addition, 

the Federal Circuit has held that the 

notice letter provided under section 

5103(a) does not need to ‘‘describe the 

VA’s evaluation of the veteran’s 

particular claim.’’ Wilson v. Mansfield, 

506 F.3d 1055, 1062 (Fed. Cir. 2007). 

Moreover, § 20.903(a) requires the 

Board to provide an appellant with a 

copy of a medical opinion obtained 

pursuant to § 20.901 and an opportunity 

to respond to the opinion. This 

provision is substantially similar to 

proposed § 20.903(b) in that it provides 

a claimant with notice and an 

opportunity to respond, but does not 

require the Board to pre-adjudicate an 

appellant’s claim when providing this 

notice. In Wilson, the Federal Circuit 

noted that when § 20.903(a) was 

promulgated the Secretary rejected a 

proposal to provide the claimant with ‘‘a 

form of predecisional adjudication.’’ 

Wilson, 506 F.3d at 1061 n.3 (citing 67 

FR 3099, 3100 (Jan. 23, 2002)). The 

Federal Circuit explained that notice 

under § 20.903(a) is not meant to inform 

an appellant of how the Board intends 

to weigh the evidence or analyze the 

claim. Id. The same logic applies to 

proposed § 20.903(b), as it is also not 

meant to provide an appellant with a 

pre-adjudication of the merits of a 

claim. The purpose of the notice 

procedures outlined in Thurber is to 

elicit additional evidence and argument 

that will more fully inform the Board’s 

eventual decision. We believe the 

language of proposed § 20.903(b) serves 

this purpose, while at the same time 

avoiding any implication that the Board 

has reached a preliminary decision on 

the appeal. Therefore, we make no 

changes to the proposed rule based on 

this comment. 

D. Board Consideration of Law Not 

Already Considered by the AOJ 

The NPRM proposed to completely 

remove the provisions of current 38 CFR 

20.903(b) from the Board’s Rules of 

Practice. Current § 20.903(b) requires 

that if the Board intends to consider law 

not already considered by the AOJ, and 

such consideration could result in 

denial of the appeal, the Board must 

notify the appellant and his or her 

representative of its intent to do so, 

provide a copy or summary of the law 

to be considered, and allow 60 days for 

a response. One commenter stated a 

belief that it is ‘‘ill conceived’’ to remove 

this provision. While the commenter 

acknowledged that the Board as an 

appellate body can consider law not 

previously considered by the AOJ, the 

commenter believed that the same due 

process considerations underlying the 

Thurber notice requirements apply. 

We reject this comment for the 

following reasons. The situation set out 

in Thurber is fundamentally different 

than when VA relies on a provision of 

law not previously considered by the 

AOJ. Thurber specifically addresses 

whether an appellant is entitled to 

receive notice and an opportunity to 

respond before the Board considers a 

medical treatise in making a decision. 

Thurber, 5 Vet. App. at 120. The 

appellant would not be aware of the 

content of a medical treatise relied upon 

unless the Board provided the appellant 

with notice of its provisions. In contrast, 

statutes, regulations, and case law are 

all matters of public record. The United 

States Supreme Court has held that 

everyone dealing with the Government 

is charged with knowledge of federal 

statutes and lawfully promulgated 

agency regulations. Fed. Crop Ins. Corp. 

v. Merrill, 332 U.S. 380, 384–85 (1947); 

see Morris v. Derwinski, 1 Vet. App. 260, 

265 (1991) (applying Fed. Crop Ins. 

Corp. in the context of VA regulations); 

Velez v. West, 11 Vet. App. 148, 156 

(1998) (same); see also ATC Petroleum, 

Inc. v. Sanders, 860 F.2d 1104, 1111–12 

(DC Cir. 1988) (noting that ‘‘parties 

dealing with the government are 

expected to know the law’’ and that 

‘‘there is no grave injustice in holding 

parties to a reasonable knowledge of the 

law’’ (internal quotation marks 

omitted)). Information about governing 

law, including relevant case law, is 

available to the public without the 

Board providing the notice required by 

current § 20.903(b). 

As explained in the NPRM, in 

Disabled American Veterans v. 

Secretary of Veterans Affairs, 327 F.3d 

1339 (Fed. Cir. 2003), the Federal 

Circuit considered a challenge to the 

validity of § 19.9(b)(2), which permits 

the Board to consider law not 

considered by the AOJ in the first 

instance. Id. at 1349. The Federal 

Circuit deferred to VA’s interpretation 

that the ‘‘Board’s status as an appellate 

body does not bar it from considering 

law not considered by the AOJ,’’ and 

held that in considering ‘‘whether the 

proper law was applied by the AOJ in 

a particular claim, the Board inherently 

provides legal questions ‘one review on 

appeal to the Secretary’ as required by 

[38 U.S.C.] 7104(a).’’ Id. The Federal 

Circuit’s holding was not predicated on 

the Board’s adherence to the notice 

provisions outlined in current 

§ 20.903(b). Id. 

Several statutory provisions also 

contemplate the Board’s consideration 

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Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Rules and Regulations 17547 

of all applicable law, whether or not 

such law has been considered by the 

AOJ and regardless of whether the 

notice provisions of current § 20.903(b) 

have been satisfied. Section 7104(a) 

requires that ‘‘[d]ecisions of the Board 

shall be based * * * upon 

consideration of all * * * applicable 

provisions of law and regulation.’’ 

Section 7104(c) provides that the ‘‘Board 

shall be bound in its decisions by the 

regulations of the Department, 

instructions of the Secretary, and the 

precedent opinions of the chief legal 

officer of the Department.’’ Moreover, 38 

U.S.C. 7104(d)(1) requires that each 

Board decision include ‘‘a written 

statement of the Board’s findings and 

conclusions, and the reasons or bases 

for those findings and conclusions, on 

all material issues of fact and law 

presented on the record’’ (emphasis 

added). None of these provisions is 

conditioned on the Board’s following 

notice procedures similar to those 

currently outlined in 38 CFR 20.903(b). 

Removing current § 20.903(b) is 

consistent with the jurisprudence of 

both the Veterans Court and the Federal 

Circuit, and more accurately depicts the 

Board’s statutory obligation to consider 

all applicable provisions of law and 

regulation. 38 U.S.C. 7104. We therefore 

make no changes to the proposed rule 

based on the commenter’s suggestion. 

Paperwork Reduction Act 

This document contains no provisions 

constituting a collection of information 

under the Paperwork Reduction Act (44 

U.S.C. 3501–3521). 

Regulatory Flexibility Act 

The Secretary hereby certifies that 

this regulatory amendment 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. These 

amendments would not directly affect 

any small entities. Only VA 

beneficiaries and their survivors could 

be directly affected. Therefore, pursuant 

to 5 U.S.C. 605(b), these amendments 

are exempt from the initial and final 

regulatory flexibility analysis 

requirements of sections 603 and 604. 

Executive Order 12866—Regulatory 

Planning and Review 

Executive Order 12866 directs 

agencies to assess all costs and benefits 

of available regulatory alternatives and, 

when regulation is necessary, to select 

regulatory approaches that maximize 

net benefits (including potential 

economic, environmental, public health 

and safety, and other advantages; 

distributive impacts; and equity). The 

Order classifies a rule as a significant 

regulatory action requiring review by 

the Office of Management and Budget if 

it meets any one of a number of 

specified conditions, including: having 

an annual effect on the economy of $100 

million or more, creating a serious 

inconsistency or interfering with an 

action of another agency, materially 

altering the budgetary impact of 

entitlements or the rights of entitlement 

recipients, or raising novel legal or 

policy issues. VA has examined the 

economic, legal, and policy implications 

of this final rule and has concluded that 

it is not a significant regulatory action 

under Executive Order 12866 because it 

primarily codifies longstanding VA 

practice and already existing law, does 

not raise any novel legal or policy 

issues, and will have little to no effect 

on the economy. 

Unfunded Mandates 

The Unfunded Mandates Reform Act 

of 1995 requires, at 2 U.S.C. 1532, that 

agencies prepare an assessment of 

anticipated costs and benefits before 

issuing any rule that may result in an 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector of $100 million or more 

(adjusted annually for inflation) in any 

given year. This rule would have no 

such effect on State, local, and tribal 

governments, or on the private sector. 

Catalog of Federal Domestic Assistance 

Numbers and Titles 

The Catalog of Federal Domestic 

Assistance program numbers and titles 

for this proposal are 64.100, 

Automobiles and Adaptive Equipment 

for Certain Disabled Veterans and 

Members of the Armed Forces; 64.101, 

Burial Expenses Allowance for 

Veterans; 64.102, Compensation for 

Service-Connected Deaths for Veterans’ 

Dependents; 64.103, Life Insurance for 

Veterans; 64.104, Pension for NonService-Connected Disability for 

Veterans; 64.105, Pension to Veterans 

Surviving Spouses, and Children; 

64.106, Specially Adapted Housing for 

Disabled Veterans; 64.109, Veterans 

Compensation for Service-Connected 

Disability; 64.110, Veterans Dependency 

and Indemnity Compensation for 

Service-Connected Death; 64.114, 

Veterans Housing-Guaranteed and 

Insured Loans; 64.115, Veterans 

Information and Assistance; 

64.116,Vocational Rehabilitation for 

Disabled Veterans; 64.117, Survivors 

and Dependents Educational Assistance; 

64.118, Veterans Housing-Direct Loans 

for Certain Disabled Veterans; 64.119, 

Veterans Housing-Manufactured Home 

Loans; 64.120, Post-Vietnam Era 

Veterans’ Educational Assistance; 

64.124, All-Volunteer Force Educational 

Assistance; 64.125, Vocational and 

Educational Counseling for 

Servicemembers and Veterans; 64.126, 

Native American Veteran Direct Loan 

Program; 64.127, Monthly Allowance 

for Children of Vietnam Veterans Born 

with Spina Bifida; and 64.128, 

Vocational Training and Rehabilitation 

for Vietnam Veterans’ Children with 

Spina Bifida or Other Covered Birth 

Defects. 

Signing Authority 

The Secretary of Veterans Affairs, or 

designee, approved this document and 

authorized the undersigned to sign and 

submit the document to the Office of the 

Federal Register for publication 

electronically as an official document of 

the Department of Veterans Affairs. John 

R. Gingrich, Chief of Staff, approved this 

document on March 18, 2011 for 

publication. 

List of Subjects in 38 CFR Parts 19 and 

20 

Administrative practice and 

procedure, Claims, Veterans. 

Dated: March 24, 2011. 

Robert C. McFetridge, 

Director, Regulations Policy and 

Management, Department of Veterans Affairs. 

For the reasons set forth in the 

Preamble to this final rule, VA amends 

38 CFR parts 19 and 20 as follows: 

PART 19—BOARD OF VETERANS’ 

APPEALS: APPEALS REGULATIONS 

■ 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 

■ 2. Amend § 19.9 by: 

■ a. Revising the section heading and 

paragraph (a) heading. 

■ b. Revising paragraphs (b) and (c). 

■ c. Adding paragraph (d). 

■ d. Revising the authority citation at 

the end of the section. 

The revisions and addition read as 

follows: 

§ 19.9 Remand or referral for further 

action. 

(a) Remand . * * * 

(b) Referral. The Board shall refer to 

the agency of original jurisdiction for 

appropriate consideration and handling 

in the first instance all claims 

reasonably raised by the record that 

have not been initially adjudicated by 

the agency of original jurisdiction, 

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17548 Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Rules and Regulations 

except for claims over which the Board 

has original jurisdiction. 

(c) Remand for a Statement of the 

Case. In cases before the Board in which 

a claimant has timely filed a Notice of 

Disagreement with a determination of 

the agency of original jurisdiction on a 

claim, but the record reflects that the 

agency of original jurisdiction has not 

subsequently granted the claim in full 

and has not furnished the claimant with 

a Statement of the Case, the Board shall 

remand the claim to the agency of 

original jurisdiction with instructions to 

prepare and issue a Statement of the 

Case in accordance with the provisions 

of subpart B of this part. A remand for 

a Statement of the Case is not required 

if the claimant, consistent with the 

withdrawal requirements of § 20.204 of 

this chapter, withdraws the Notice of 

Disagreement. 

(d) Exceptions. A remand or referral 

to the agency of original jurisdiction is 

not necessary for any of the following 

purposes: 

(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) Considering law not already 

considered by the agency of original 

jurisdiction, including, but not limited 

to, statutes, regulations, and court 

decisions; 

(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; 

(4) Requesting an opinion under 

§ 20.901 of this chapter; 

(5) Supplementing the record with a 

recognized medical treatise; or 

(6) Considering a matter over which 

the Board has original jurisdiction. 

(Authority: 38 U.S.C. 7102, 7103(c), 7104(a), 

7105). 

PART 20—BOARD OF VETERANS’ 

APPEALS: RULES OF PRACTICE 

■ 3. The authority citation for part 20 

continues to read as follows: 

Authority: 38 U.S.C. 501(a) and as noted 

in specific sections. 

Subpart J—Action by the Board 

■ 4. Amend § 20.903 by: 

■ a. Revising the section heading. 

■ b. Revising paragraph (b). 

The revisions read as follows: 

§ 20.903 Rule 903. Notification of evidence 

to be considered by the Board and 

opportunity for response. 

* * * * * 

(b) If the Board supplements the 

record with a recognized medical 

treatise—(1) General. If, pursuant to 

§ 19.9(d)(5) of this chapter, the Board 

supplements the record with a 

recognized medical treatise, the Board 

will notify the appellant and his or her 

representative, if any, that the Board 

will consider such recognized medical 

treatise in the adjudication of the 

appeal. The notice from the Board will 

contain a copy of the relevant portions 

of the recognized medical treatise. The 

appellant will be given 60 days after the 

date of the notice described in this 

section to file a response, which may 

include the submission of relevant 

evidence or argument. The date the 

Board gives the notice will be presumed 

to be the same as the date of the notice 

letter for purposes of determining 

whether a response was timely filed. 

(2) Exception. The notice described in 

paragraph (b)(1) of this section is not 

required if the Board uses a recognized 

medical treatise or medical dictionary 

for the limited purpose of defining a 

medical term and that definition is not 

material to the Board’s disposition of 

the appeal. 

■ 5. In § 20.1304, revise paragraph (b)(2) 

to read as follows: 

§ 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. 

* * * * * 

(b) * * * 

(2) Exception. The motion described 

in paragraph (b)(1) of this section is not 

required to submit evidence in response 

to a notice described in § 20.903 of this 

chapter. 

* * * * * 

[FR Doc. 2011–7395 Filed 3–29–11; 8:45 am] 

BILLING CODE 8320–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 51 and 52 

[EPA–HQ–OAR–2004–0014: FRL–9280–8] 

RIN 2060–AQ73 

Prevention of Significant Deterioration 

(PSD) and Nonattainment New Source 

Review (NSR): Reconsideration of 

Inclusion of Fugitive Emissions; 

Interim Rule; Stay and Revisions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Interim rule; stay and revisions. 

SUMMARY: EPA is taking an interim 

action to effectuate and extend a stay of 

the final rule entitled ‘‘Prevention of 

Significant Deterioration (PSD) and 

Nonattainment New Source Review 

(NSR): Reconsideration of Inclusion of 

Fugitive Emissions’’ (‘‘Fugitive 

Emissions Rule’’) published in the 

Federal Register on December 19, 2008. 

The Fugitive Emissions Rule under the 

Federal NSR program required that 

fugitive emissions be included in 

determining whether a physical or 

operational change results in a major 

modification only for sources in 

designated industries. EPA issued a stay 

of the Fugitive Emissions Rule on March 

31, 2010, that was effective for 18 

months through October 3, 2011. This 

action supersedes the stay and thereby 

corrects potential confusion caused by 

that stay. To effectuate a stay of the 

Fugitive Emissions Rule, this action 

clarifies the stay and the revisions of 

specific paragraphs in the NSR 

regulations that were affected by the 

Fugitive Emissions Rule. This action 

also extends the stay until EPA 

completes its reconsideration of the 

Fugitive Emissions Rule. 

DATES: Effective date: This interim rule 

is effective March 30, 2011. 

The administrative stay of provisions 

in 40 CFR 51.165, 51.166, Appendix S 

to part 51, and 40 CFR 52.21 published 

on March 31, 2010 (75 FR 16012) is 

lifted; and 

The following Code of Federal 

Regulations sections are stayed 

indefinitely: 40 CFR 51.165(a)(1)(v)(G) 

and (a)(1)(vi)(C)(3); 51.166(b)(2)(v) and 

(b)(3)(iii)(d); Appendix S to Part 51, 

Paragraph II.A.5(vii); and 52.21(b)(2)(v) 

and (b)(3)(iii)(c). The EPA will publish 

a document in the Federal Register 

lifting this stay. 

Comment date: Comments must be 

received on or before April 29, 2011. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

WReier-Aviles on DSKGBLS3C1PROD with RULES