138 Federal Register / Vol. 84, No. 13 / Friday, January 18, 2019 / Rules and Regulations 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Parts 3, 8, 14, 19, 20, and 21 

RIN 2900–AQ26 

VA Claims and Appeals Modernization 

AGENCY: Department of Veterans Affairs. 

ACTION: Final rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) amends its claims 

adjudication, appeals, and Rules of 

Practice of the Board of Veterans’ 

Appeals (Board) regulations. In 

addition, this rule revises VA’s 

regulations with respect to accreditation 

of attorneys, agents, and Veterans 

Service Organization (VSO) 

representatives; the standards of 

conduct for persons practicing before 

VA; and the rules governing fees for 

representation. This rulemaking 

implements the Veterans Appeals 

Improvement and Modernization Act of 

2017 (AMA), which amended the 

procedures applicable to administrative 

review and appeal of VA decisions on 

claims for benefits, creating a new, 

modernized review system. Unless 

otherwise specified in this final rule, 

VA amends its regulations applicable to 

all claims processed under the new 

review system, which generally applies 

where an initial VA decision on a claim 

is provided on or after the effective date 

or where a claimant has elected to opt 

into the new review system under 

established procedures. For the reasons 

set forth in the proposed rule and in this 

final rule, VA is adopting the proposed 

rule as final, with minor changes, as 

explained below. 

DATES: This final rule is effective 

February 19, 2019. 

FOR FURTHER INFORMATION CONTACT: 

Veterans Benefits Administration 

information, parts 3, 8, and 21: Jennifer 

Williams, Senior Management and 

Program Analyst, Appeals Management 

Office, Department of Veterans Affairs, 

810 Vermont Avenue NW, Washington, 

DC 20420, (202) 530–9124 (this is not a 

toll-free number). Regulation of legal 

representatives’ information, parts 19 

and 20: Rachel Sauter, Counsel for 

Legislation, Regulations, and Policy, 

Board of Veterans’ Appeals. Department 

of Veterans Affairs, 810 Vermont 

Avenue NW, Washington, DC 20420, 

(202) 632–5555 (this is not a toll-free 

number). 

SUPPLEMENTARY INFORMATION: On August 

10, 2018, VA published in the Federal 

Register (83 FR 39818) a proposed rule 

to implement Public Law (Pub. L.) 115– 

55, the AMA. The AMA and these 

implementing regulations provide 

much-needed comprehensive reform for 

the legacy administrative appeals 

process, to help ensure that claimants 

receive a timely decision on review 

where they disagree with a VA claims 

adjudication. The AMA review 

procedures and these regulations 

replace the current VA appeals process 

with a new review process that makes 

sense for veterans, their advocates, VA, 

and stakeholders. 

The statutory requirements, which VA 

implements in these regulations, 

provide a claimant who is not fully 

satisfied with the result of any review 

lane additional options to seek further 

review while preserving an effective 

date for benefits based upon the original 

filing date of the claim. For example, a 

claimant could go straight from an 

initial agency of original jurisdiction 

decision on a claim to an appeal to the 

Board. If the Board decision was not 

favorable, the claimant has two further 

options. If the Board’s decision helped 

the claimant understand the evidence 

needed to support the claim, then the 

claimant would have one year to submit 

new and relevant evidence to the agency 

of original jurisdiction in a 

supplemental claim. A claimant in this 

situation could instead appeal within 

120 days of the Board decision to the 

Court of Appeals for Veterans Claims 

(CAVC) in accordance with CAVC rules 

and deadlines. Alternatively, a claimant 

could seek review of the initial decision 

by filing a supplemental claim or 

requesting a higher-level review in the 

agency of original jurisdiction, again, 

without any impact on the potential 

effective date for payment of benefits. 

The differentiated lane framework 

required by statute and implemented in 

these regulations has many advantages. 

It provides a streamlined process that 

allows for early resolution of a 

claimant’s appeal and the lane options 

allow claimants to tailor the process to 

meet their individual needs and control 

their VA experience. It also enhances 

claimants’ rights by preserving the 

earliest possible effective date for an 

award of benefits, regardless of the 

option(s) they choose, as long as the 

claimant pursues review of a claim in 

any of the lanes within the established 

timeframes. By having a higher-level 

review lane within the claims process 

and a lane at the Board, both providing 

for review on only the record 

considered by the initial claims 

adjudicator, the new process provides a 

feedback mechanism for targeted 

training and improved quality in the 

agency of original jurisdiction. 

To ensure that as many claimants as 

possible benefit from the streamlined 

features of the new process, the AMA 

and these regulations provide 

opportunities for claimants and 

appellants in the legacy system to take 

advantage of the new system. Some 

claimants who received a decision prior 

to the effective date of the law and thus 

had a legacy appeal pending, were able 

to participate in the new system by way 

of VA’s Rapid Appeals Modernization 

Program (RAMP). Claimants who 

receive a Statement of the Case (SOC) or 

Supplemental Statement of the Case 

(SSOC) as part of a legacy appeal after 

the effective date of the law will also 

have an opportunity to opt-in to the new 

system. 

Most of the regulatory amendments 

prescribed in this final rule are 

mandatory to comply with the law. 

Through careful collaboration with VA, 

VSOs, and other stakeholders, in 

enacting the AMA, Congress provided a 

highly detailed statutory framework for 

claims and appeals processing. VA is 

unable to alter amendments that directly 

implement mandatory statutory 

provisions. In addition to implementing 

mandatory requirements, VA prescribes 

a few interpretive or gap-filling 

amendments to the regulations, which 

are not specifically mandated by the 

AMA, but that VA believes are in line 

with the law’s goals to streamline and 

modernize the claims and appeals 

process. These amendments reduce 

unnecessary regulations, modernize 

processes, and improve services for 

claimants. 

Interested persons were invited to 

submit comments to the proposed rule 

on or before October 9, 2018, and 29 

comments were received. Those 

comments have been addressed 

according to topic in the discussion 

below. This final rule contains 

amendments to parts 3, 8, 14, 19, 20, 

and 21, as described in detail below. 

Part 3—Adjudication 

VA amends the regulations in 38 CFR 

part 3 as described in the section-bysection supplementary information 

below. These regulations govern the 

adjudication of claims for VA monetary 

benefits (e.g., compensation, pension, 

dependency and indemnity 

compensation, and burial benefits), 

which are administered by the VBA. 

These amendments apply to claims 

processed in the modernized review 

system as described in § 3.2400. 

A. Comments Concerning § 3.1— 

Definitions 

Public Law 115–55, section 2(a), 

defines ‘‘supplemental claim’’ as ‘‘a 

claim for benefits under laws 

administered by the Secretary filed by a 


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claimant who had previously filed a 

claim for the same or similar benefits on 

the same or similar basis.’’ Although it 

is possible to read this language as 

implicating both claims filed as a 

disagreement with a prior decision, and 

claims submitted due to a worsening of 

a condition, this dual interpretation 

would not be consistent with other 

sections of the statute. Namely, Public 

Law 115–55 also revised 38 U.S.C. 5108, 

which requires the Secretary to 

‘‘readjudicate’’ a claim where ‘‘new and 

relevant evidence is presented or 

secured with respect to a supplemental 

claim.’’ When both sections are read 

together, it becomes clear that the intent 

of the law was to make supplemental 

claims only applicable to situations 

where a claimant disagrees with a 

previous VA decision and seeks review 

and readjudication. Accordingly, as 

noted in VA’s proposed regulation, VA 

proposed to clarify in regulation the 

definition of supplemental claim. VA 

added to the definition of ‘‘claim’’ in 

§ 3.1(p) of the proposed rule definitions 

of ‘‘supplemental claim,’’ ‘‘initial 

claim,’’ and ‘‘claim for increase.’’ 

VA received six comments regarding 

definitions listed in § 3.1(p). Concerns 

centered around the definitions of 

initial claim (§ 3.1(p)(1)), claim for 

increase (§ 3.1(p)(1)(iii)), claim 

(§ 3.1(p)(2)), and supplemental claim 

(§ 3.1(p)(2)). Several comments 

addressed concerns regarding the use of 

the term ‘‘written communication’’ in 

some definitions while other areas of 

the proposed rule referenced ‘‘written or 

electronic’’ communication. VA agrees 

with the need for clarification regarding 

electronic communication and revises 

§ 3.1(p) to reflect a claim as both a 

written or electronic communication 

properly submitted on an application 

form prescribed by the Secretary. 

Several comments raised concerns 

that a claim for increase was included 

as a type of initial claim and argued it 

is more appropriately considered a 

supplemental claim. VA includes claim 

for increase in the definition of an 

initial claim to clarify to claimants that 

a claim for increase is based on a change 

or worsening in condition or 

circumstance since a prior VA decision 

and not based on disagreement with that 

decision. Accordingly, VA revises 

proposed § 3.1(p)(1)(iii) to reflect a 

claim for increase as a change or 

worsening in condition or circumstance 

since a prior VA decision. One comment 

also expressed concern that ‘‘the VA 

may sometimes be overbroad in 

requiring supplemental claims where a 

veteran has not had a decision on a 

specific issue or disability previously.’’ 

VA agrees there may be confusion 

regarding the definition of a 

supplemental claim and revised 

§ 3.2501 to clarify that a supplemental 

claim is based upon a disagreement 

with a prior VA decision. 

VA revises the definition of ‘‘initial 

claim’’ in § 3.1(p)(1), to provide clarity 

concerning the term ‘‘original claim’’ in 

response to comments. Commenters 

expressed confusion between the terms 

‘‘original’’ and ‘‘initial’’ based on 

dictionary definitions, which treat them 

interchangeably. VA’s revisions to 

§ 3.1(p)(1) explain that an original claim 

is the first initial claim. 

One commenter expressed a belief 

that the terms ‘‘issue’’ and ‘‘claim’’ are 

used interchangeably in sections of the 

proposed rule but defined differently. It 

is clear from § 3.151(c) that the term 

‘‘issue’’ refers to a distinct 

determination of entitlement to a 

benefit, such as a determination of 

entitlement to service-connected 

disability compensation for a particular 

disability. A claim is a request for 

review of one or more issues. If a claim 

includes only one issue then the terms 

may appear to be used interchangeably. 

Accordingly, VA revises § 3.1(p) to 

include a reference to § 3.151(c), which 

defines issues within a claim. 

B. Comments Concerning § 3.103— 

Procedural Due Process and Other 

Rights 

VA received eleven comments 

regarding procedural due process 

concerns as referenced in § 3.103. 

Two commenters expressed concern 

that the use of the phrase ‘‘when 

applicable’’ in § 3.103(b)(1) is too broad 

and open to interpretation. VA agrees 

that the term is vague and revises 

§ 3.103(b)(1) to refer the reader to 

subsection (d), which explains the 

availability of a hearing. 

Another commenter expressed 

concern with the removal of language in 

§ 3.103(c)(2) regarding visual 

examinations during hearings. These 

types of visual examinations are 

obsolete as veterans and VA can now 

utilize several other methods to add 

visual examination findings into the 

record. Claimants may use Disability 

Benefits Questionnaires (DBQs) that any 

physician may complete to document 

visual findings. VA may also assist 

claimants through the scheduling of 

contract examinations which support 

VA’s disability evaluation process and 

make obtaining examinations easier and 

more efficient by bypassing the 

requirement to formally schedule one 

with a VA provider. Accordingly, VA 

does not make any changes to 

§ 3.103(c)(2) based upon the comment. 

Several comments raised concerns 

regarding § 3.103(c)(2), Treatment of 

evidence received after notice of a 

decision. The concerns centered around 

the desire for VA to notify claimants in 

writing each time VA does not consider 

evidence received after notice of a 

decision, when the record is closed. The 

commenters are correct that VA does 

not intend to notify a claimant every 

time the claimant submits evidence 

during a period when the record is 

closed. Rather, the initial notice of 

decision provided to the claimant will 

explain the review options, the 

associated evidentiary rules, and the 

procedures to follow to obtain VA 

consideration of new evidence. In 

addition, VA will, in accordance with 

the AMA and § 3.103(f), provide 

information to the claimant in the initial 

decision as to evidence that was 

considered, and any subsequent review 

decision, based on a closed record, will 

inform the claimant generally if VA 

received evidence that was not 

considered. Finally, decision notices 

will provide to claimants instructions 

for how to obtain or access the actual 

evidence used in making the decision 

(the complete record on which the 

decision was based). 

VA takes seriously its obligation to 

administer its process in a claimantfriendly way, and accordingly provides 

multiple means for claimants to obtain 

information on what evidence VA has 

received and the date of receipt to 

determine if it was submitted when the 

evidentiary record was open or closed. 

Most fundamentally, claimants are able 

to request a copy of their own claims 

files. Additionally, accredited 

representatives are eligible to receive 

access to the Veterans Benefits 

Management System, which enables 

them to see what is in the file at any 

time. And a claimant can visit the VBA 

Regional Office to view their claims file 

in a reading room. 

Accordingly, to the extent a claimant 

is unsure whether a given piece of 

evidence was considered the claimant 

can check the review decision to see 

whether it indicates whether there was 

any evidence that was not considered. If 

so, the claimant can check the summary 

of evidence in the initial decision 

notice. VA expects this to resolve the 

matter in most instances. However, to 

the extent that the claimant needs 

access to the entire record on which a 

decision is based, the decision notice 

will describe that procedure. Finally, 

whenever the claimant is uncertain, the 

claimant can submit the evidence in 

question again as part of a supplemental 

claim. If this is done within one year, 

there will be no loss of effective date. If 


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the evidence was not considered in the 

prior claim and is relevant, it would be 

considered in adjudicating the 

supplemental claim. (As explained in 

the proposed rule, even if the claimant 

did not submit with the supplemental 

claim relevant evidence previously 

submitted out of time, VA would be 

obligated to consider it.) The law does 

not require VA to list evidence not 

considered because it was received after 

notice of a decision, or during some 

other period when the evidentiary 

record was closed. Before the AMA, 38 

U.S.C. 5104 required VA to provide 

certain information only in cases where 

VA denied a benefit sought: (1) A 

statement of reasons for the decision; 

and (2) a summary of the evidence 

considered by the Secretary. 38 U.S.C. 

5104(b) (2016). In the AMA, Congress 

directly addressed the information 

requirements for decision notices in a 

high level of detail. All decision notices, 

regardless of whether or not they deny 

a benefit sought, must now include 

seven specified data elements. 38 U.S.C. 

5104(b)(1)–(7). This includes ‘‘a 

summary of the evidence considered by 

the Secretary[.]’’ 38 U.S.C. 5104(b)(2). 

This extensive list of required data 

elements does not include identification 

of evidence not considered. It is clear 

that Congress directly considered the 

requirements for decision notices, 

altered the applicable legal 

requirements in ways generally 

favorable to claimants, and declined to 

add a requirement to identify and 

discuss evidence not considered. 

Beyond the fact that the law does not 

require VA to provide notice of 

evidence not considered, VA declines to 

discretionarily impose such a 

requirement through regulation. From 

VA’s perspective, the closing of the 

evidentiary record is one of the 

foundational features of the AMA, and 

one of its most valuable in terms of 

enabling VA, over time, to process 

claims and appeals more efficiently. 

Requiring VA to notify claimants each 

time evidence is submitted out of time 

or list or summarize such evidence 

individually in review decisions would 

dilute much of the administrative value 

of having a closed record following the 

initial decision. Providing this notice 

would require VA personnel to review 

and identify or summarize (if, for 

example, the evidence is not dated) lateflowing evidence when preparing the 

decision notice. Such a procedure 

would unavoidably require ‘‘by hand’’ 

review and processing of evidence by 

VBA adjudicators, similar to the review 

required for simply considering the 

evidence for decisional purposes. In this 

scenario, VA would be spending its 

limited adjudicative resources reading 

and processing documents that are not 

part of the record and cannot be the 

basis for a decision. 

Apart from the work of reading and 

summarizing extra-record evidence, 

imposing this requirement would also 

carry a significant cost in terms of 

generating procedural complexity. A 

regulatory requirement that VA identify 

or summarize certain evidence would, 

of necessity, need to be enforceable on 

appeal in order to be meaningful. (Such 

a notice requirement would technically 

be distinct from the argument on appeal 

that certain evidence was excluded from 

the record in error, which is an 

appellate argument that is certainly 

possible under this final rule.) 

Accordingly, the argument that VA 

failed to provide legally adequate notice 

or description of what evidence was not 

considered would become a feature of 

the appellate system. This would be 

problematic for two reasons. First, it 

invites appellate activity centered on 

procedure rather than the substance of 

veterans’ claims. Second, and worse, it 

creates the specter of argument over the 

proper discussion of non-record 

evidence. Evidence that is nominally 

not part of the record of the decision on 

appeal would necessarily become 

central to such an appellate argument. 

At that point, the evidence would, for 

all intents and purposes, be part of the 

record, even though the premise of the 

argument would necessarily be that the 

evidence was validly excluded. 

We acknowledge that proposed 

§ 20.801(b)(3), which we here confirm as 

final, will require the Board to provide 

‘‘[a] general statement’’ that evidence 

received while the record was closed 

was not considered. This provision, 

governing Board practice, is consonant 

with VA’s decision not to impose a 

requirement on VBA to list or 

summarize untimely evidence. This 

provision is necessary to comply with 

38 U.S.C. 7104(d)(2), which is specific 

to Board decisions. That provision only 

requires a broad statement that untimely 

evidence was received and not 

considered, rather than any meaningful 

engagement with that evidence, such as 

a listing or summary. 

VA recognizes that some individual 

claimants might prefer that VA either 

provide notification each time it 

receives evidence submitted out of time 

or list such evidence specifically in 

decision notices. However, in balancing 

efficiency considerations in line with 

the expressed goal of Congress to reduce 

VA backlogs and processing times, VA 

has chosen the alternative procedures 

discussed above to provide claimants 

with information they need to 

effectively prosecute their claims 

without prejudice to their ability to have 

all relevant evidence considered prior to 

a final adjudication. Accordingly, VA 

does not make any changes to 

§ 3.103(c)(2) based upon these 

comments. As the precise procedures 

for providing such notice may change 

based on technological systems, as well 

as other resources, VA will continue to 

address this matter through internal 

procedural guidance consistent with the 

law and regulations. 

Multiple commenters recommended 

that additional information be included 

in decision notices beyond what is 

required in § 3.103(f). Suggestions 

include the compensation rating 

decision codesheet, information on 

expected improvement in disability, and 

full identification of specific evidence 

not considered (which we discuss 

above). Current VA procedures require 

the inclusion of any expected 

reexaminations due to expected 

improvement or worsening of a 

disability consistent with current 

§ 3.327 and, in many instances, allow 

for the inclusion of the codesheet with 

compensation rating decision notices. 

VA has a requirement under 

§ 3.103(f)(7) to explain how to obtain or 

access evidence used in making the 

decision. One method authorized 

representatives may use to access 

evidence is to request access to the 

claimant’s electronic claims folder. 

Accordingly, VA does not make any 

changes to § 3.103(f) based upon these 

comments. 

A commenter noted that the ‘‘new 

§ 3.103 does not require VA to describe 

evidence in its possession that it did not 

review’’, raising a hypothetical situation 

in which a claimant was treated for 

conditions at a VA facility the day prior 

to the decision being rendered on their 

higher-level review. This is a 

constructive receipt argument that VA 

was in possession of the records from 

the day prior and therefore cannot 

appropriately adjudicate a higher-level 

review without those records, while at 

the same time arguing this is not ‘‘new 

evidence’’ used in support of a 

supplemental claim because the records 

were in general custody of VA at the 

time. 

VA makes minor adjustments to the 

rule as proposed to clarify the 

parameters in this area. 38 CFR 

3.103(c)(2), Treatment of evidence 

received after notice of a decision, now 

clearly explains what may be included 

in the record for adjudication. It states, 

‘‘The evidentiary record for a claim 

before the agency of original jurisdiction 

closes when VA issues notice of a 


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decision on the claim. The agency of 

original jurisdiction will not consider, 

or take any other action on evidence 

submitted by a claimant, associated 

with the claims file, or constructively 

received by VA as described in 

§ 3.103(c)(2)(iii), after notice of decision 

on a claim, and such evidence will not 

be considered part of the record at the 

time of any decision by the agency of 

original jurisdiction, except’’ in two 

specific circumstances relating to the 

submission of a supplemental or initial 

claim or identification of a duty to assist 

error. 

Additionally, § 3.103(f)(2) identifies 

the requirement to provide a summary 

of the evidence considered in 

notification of decisions. This provides 

the claimant a clear understanding of 

what was considered and is consistent 

with the definitions of evidence 

reviewable under a higher-level review 

or supplemental claim. Under these 

definitions, the evidence raised in the 

hypothetical situation would be 

considered new evidence available to be 

used by the claimant in a supplemental 

claim. To the extent the commenter 

means that evidence created by VA 

shortly before the record closes but not 

associated with the claims record or 

identified to adjudicators in any way 

should be treated as constructively part 

of the record pursuant to Bell v. 

Derwinski, 2 Vet. App. 611 (1992), we 

note that documents created while the 

record is closed do not become part of 

the record by virtue of the doctrine of 

constructive receipt. At the same time, 

if a document created while the record 

was open is identified on direct appeal 

as having been constructively received 

at a time when the record was open 

(e.g., the Board or a higher-level 

reviewer become aware of a document 

within the scope of Bell), the record can 

be corrected, including in similar 

fashion to a duty to assist error. 

However, in order for a Bell error to 

cause the record to be augmented in this 

way, the document in question must 

actually satisfy the law of constructive 

receipt in the VA context. Case law 

construing Bell makes clear that the 

mere existence of a record is not 

sufficient to establish constructive 

receipt for adjudicative purposes. 

Rather, VBA adjudicators must have 

sufficient indication that a given record 

exists and sufficient information to 

locate it, even though they do not have 

actual custody of it, in order to trigger 

the doctrine of constructive receipt in 

the VA claims adjudication context. See 

Turner v. Shulkin, 29 Vet. App. 207, 

217–219 (2018). We have explicitly 

incorporated this concept into the final 

rule at 38 CFR 3.103(c)(2)(iii). In terms 

of the level of VBA awareness necessary 

to trigger Bell in this context, we import 

a familiar standard from the duty to 

assist context, which is referenced in 

Turner. Turner noted that 38 U.S.C. 

5103A(c)(1)(B) requires VA to obtain 

records of relevant medical treatment or 

examination of the claimant at VA 

health care facilities or at VA expense, 

‘‘if the claimant furnishes information 

sufficient to locate those records.’’ 

Turner, 29 Vet. App. at 218. There is no 

reason why the doctrine of constructive 

receipt should be broader than VA’s 

duty to obtain records for the claim. 

While the duty to assist does not apply 

following the closure of the record, it 

does apply during the initial claim 

process when any document that could 

be the basis of a constructive receipt 

issue would have to be created. 

Accordingly, we provide in 

§ 3.103(c)(2)(iii) that VBA must have 

had knowledge of the document in 

question ‘‘through information 

furnished by the claimant sufficient to 

locate those records.’’ Further, we note 

that to the extent a document 

potentially within the scope of that 

provision is discovered after a claim 

stream has lapsed, the fact that a 

document was arguably constructively 

part of the record before adjudicators in 

the prior decision would not preclude 

that document as the basis for a 

supplemental claim if it was not, in fact, 

considered. A Bell error on the part of 

VA is not a basis to deprive the veteran 

of his or her right to file a supplemental 

claim. Accordingly, Bell and the 

ongoing creation of medical treatment 

records is not a mechanism for 

preventing the adjudicative record from 

closing to the extent the law permits 

and requires it to do so, but at the same 

time, does not preclude the filing of 

supplemental claims. These definitions 

provide a clearer delineation of what is 

and is not part of the evidentiary record 

of a particular claim, as compared to the 

continuous open record of the legacy 

system. Further, through the decision 

notice on the initial claim, the claimant 

is provided a summary of pertinent 

evidence that was developed as part of 

VA’s duty to assist. When submitting a 

request for ahigher-level review, the 

claimant has notice that the evidentiary 

record will consist of the same 

information identified in the initial 

claim decision. Any additional evidence 

the claimant wishes to be considered 

would warrant their submission of a 

supplemental claim request. 

C. Comments Concerning § 3.104— 

Binding Nature of Decisions 

VA received eight comments 

regarding the binding nature of 

favorable findings. The AMA added a 

new section, 38 U.S.C. 5104A, providing 

that any findings favorable to the 

claimant will be binding on all 

subsequent adjudicators within VA, 

unless ‘‘clear and convincing evidence’’ 

is shown to the contrary to rebut the 

favorable findings. These comments 

expressed concern over the lack of 

definition of ‘‘clear and convincing,’’ as 

well as the evidentiary standard 

specified in the law being a lower 

evidentiary standard than currently 

exists and less favorable to claimants. 

The CAVC in Fagan v. West, 13 Vet. 

App. 48, 55 (1999), clarified that the 

‘‘clear and convincing’’ evidentiary 

standard of proof is an intermediate 

standard between preponderance of the 

evidence and beyond a reasonable 

doubt. VA notes that the clear and 

convincing evidence standard is a lesser 

standard than that required for a 

Veteran or claimant to correct a VA 

error that was not in their favor, which 

requires evidence of a clear and 

unmistakable error (CUE) (see 38 U.S.C. 

5109A(a) and 7111(a)). While 38 U.S.C. 

5104A states that VA must meet a ‘‘clear 

and convincing’’ evidentiary standard 

prior to overturning a favorable finding, 

nothing in the statute prohibits VA from 

administratively adopting a higher 

evidentiary standard to protect favorable 

findings on a claimant’s behalf. 

VA agrees with the commenters, as a 

matter of policy, regarding the wisdom 

of setting a higher standard applicable 

to overturning favorable findings as it is 

claimant-friendly and will reduce the 

number of cases where claimants feel 

VA is adopting an adversarial approach 

to their claim because VA has 

overturned a favorable finding. 

Accordingly, VA revises § 3.104(c) to 

require clear and unmistakable evidence 

to rebut a favorable finding. The clear 

and unmistakable standard applicable to 

rebuttal is similar to the definition of 

CUE found in § 3.105(a)(1)(i) and 38 

CFR 20.1403(a) that applies to finally 

adjudicated issues. However, 

application of the clear and 

unmistakable standard for rebuttal of a 

favorable finding is legally distinct 

because, for instance, it is limited to the 

scope of the favorable finding itself and 

does not require a further determination 

that the outcome of the benefit 

adjudication would undebatably 

change. The clear and unmistakable 

rebuttal standard may be satisfied by a 

finding that the evidentiary record as a 


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whole completely lacks any plausible 

support for the favorable finding. 

VA discussed in the proposed rule 

that no changes are necessary to 

§ 3.105(c) through (h), which govern 

severance of service connection and 

reduction in evaluations, and that the 

standards and procedures set forth in 

those paragraphs will continue to apply 

without change. VA received no 

comments on this issue, and VA’s 

position in this regard has not changed 

as a result of the choice in the final rule 

to apply the higher CUE standard to 

rebuttal of favorable findings. 

D. Comments Concerning § 3.105— 

Revision of Decisions 

Two comments expressed concern 

with the language in proposed 

§ 3.105(a)(1)(iv), entitled Change in 

interpretation, providing that a clear 

and unmistakable error does not include 

the otherwise correct application of a 

statute or regulation where, subsequent 

to the decision being challenged, there 

has been a change in the interpretation 

of the statute or regulation. As 

explained in the preamble to the 

proposed rule, this revision to § 3.105(a) 

is for the purpose of conforming the 

regulations applicable to CUE in finally 

adjudicated decisions of the agency of 

original jurisdiction with existing 

regulations applicable to CUE in finally 

adjudicated Board decisions. 

Accordingly, § 3.105(a)(1)(iv) tracks the 

language in existing 38 CFR 20.1403(e). 

VA does not agree with the 

commenters’ assertion that these 

provisions are contrary to established 

caselaw. The Federal Circuit explicitly 

rejected the premise of retroactive 

application of judicial interpretations of 

law in the CUE context in Jordan v. 

Nicholson, 401 F.3d 1296 (Fed. Cir. 

2005), and Disabled Am. Veterans 

(DAV) v. Gober, 234 F.3d 682, 698 (Fed. 

Cir. 2000). In DAV, the Federal Circuit 

specifically upheld 38 CFR 20.1403(e). 

Id. In Jordan, the court explained that 

‘‘[t]he Supreme Court has repeatedly 

denied attempts to reopen final 

decisions in the face of new judicial 

pronouncements or decisions.’’ Jordan, 

401 F.3d at 1299; see Reynoldsville 

Casket Co. v. Hyde, 514 U.S. 749, 758 

(1995) (‘‘New legal principles, even 

when applied retroactively, do not 

apply to cases already closed.’’). 

VA does not agree with the argument 

by commenters that these cases were 

overruled by Patrick v. Shinseki, 668 

F.3d 1325 (Fed. Cir. 2011), which was 

a decision regarding whether a prior 

position of the government was 

substantially justified in assessing 

whether an award of attorney fees was 

due. Further, to the extent there is any 

irreconcilable tension between DAV and 

Jordan on the one hand and Patrick on 

the other, it is well-established that the 

earlier decisions control for precedential 

purposes. Newell Companies, Inc. v. 

Kenney Mfg. Co., 864 F.2d 757, 765 

(Fed. Cir. 1988) (‘‘Where there is a direct 

conflict the precedential decision is the 

first.’’). Similarly, it is not possible for 

one panel of the Federal Circuit Court 

to have directly overruled a prior panel. 

Sacco v. Dep’t of Justice, 317 F.3d 1384, 

1386 (Fed. Cir. 2003) (‘‘[a] panel of [the 

Federal Circuit] is bound by prior 

precedential decisions unless and until 

overturned en banc.’’). VA therefore 

makes no change to the regulation based 

on the comments. 

One of these commenters 

recommends the creation of a form 

specifically for use in applying for 

review of a CUE. VA agrees there is 

merit in this recommendation, will 

review possible options, and may 

decide to implement a form for this 

specific use, consistent with the 

Paperwork Reduction Act. However, the 

current process for claiming and 

contesting a CUE should be followed in 

the absence of such a form. Should VA 

determine such a form is not necessary, 

the current process will remain in place. 

E. Comments Concerning § 3.151— 

Claims for Disability Benefits 

The AMA added 38 U.S.C. 5104C, 

which outlines the available review 

options following a decision by the 

agency of original jurisdiction. VA 

proposed to add § 3.2500 and revise 

§ 3.151 consistent with the statute to 

provide that a claimant may request one 

of the three review options under 

§ 3.2500 (higher-level review, 

supplemental claim, or appeal to the 

Board) for each issue decided by VA, 

consistent with 38 U.S.C. 5104C. A 

claimant would not be limited to 

choosing the same review option for 

each issue for a decision that 

adjudicated multiple issues. 

One commenter believed that the 

terms ‘‘issue’’ and ‘‘claim’’ are used 

interchangeably in sections of the 

proposed rule but defined differently. It 

is clear from § 3.151(c) that the term 

‘‘issue’’ refers to a distinct 

determination of entitlement to a 

benefit, such as a determination of 

entitlement to service-connected 

disability compensation for a particular 

disability. A ‘‘claim’’ is a request for 

review of one or more issues. If a claim 

includes only one issue then the terms 

may appear to be used interchangeably. 

VA agrees with the commenter’s 

suggestion that clarification is necessary 

and revised § 3.1(p) to include a 

reference to § 3.151(c), which defines 

issues within a claim. 

F. Comments Concerning § 3.155—How 

To File a Claim 

While the AMA does not specifically 

address how to file a claim, or the 

concept of intent to file as it relates to 

supplemental claims, it is necessary for 

VA to create a framework for this 

process. Currently, 38 U.S.C. 501(a) and 

5104C(a)(2)(D) place the authority to 

develop policy in this area on the 

Secretary. 

One comment expressed concern that 

§ 3.155(b), Intent to file, does not apply 

to supplemental claims and 

recommends recision of this limitation. 

However, 38 U.S.C. 5110 of the new 

statutory framework provides that a 

claimant can maintain the potential 

effective date of a potential benefits 

award by submitting a request for 

review under any of the three new lanes 

within one year of the date of the 

decision with which the claimant 

disagrees. Consistent with this 

requirement, the intent to file provisions 

of § 3.155(b) do not apply to 

supplemental claims because the statute 

prescribes a one-year filing period in 

order to protect the effective date for 

payment of benefits. The commenters 

recommendation would allow for the 

submission of a supplemental claim 

beyond the one-year period. For these 

reasons, VA will not make any changes 

to § 3.155 based on the commenter’s 

recommendation. 

G. Comments Concerning § 3.156—New 

Evidence 

One commenter expressed concern 

with the definition of new evidence 

meaning evidence not yet ‘‘submitted 

to’’ VA and recommended clarification 

that new evidence is evidence not yet 

‘‘considered by’’ VA. The commenter 

suggested this change to ensure that 

evidence qualifies as ‘‘new’’ for 

purposes of a supplemental claim, 

where that evidence was associated 

with the claims file when the record 

was closed and therefore was not 

previously considered by a VA 

adjudicator. VA agrees that clarification 

along these lines is necessary but has 

revised the regulatory language in 

different manner. Instead of the change 

recommended by the commentator, VA 

has replaced ‘‘not previously submitted 

to agency adjudicators’’ in the definition 

of new evidence with ‘‘not previously 

part of the actual record before agency 

adjudicators.’’ This change will 

accomplish the same goal, with the 

additional benefit, through use of the 

phrase ‘‘actual record,’’ of clarifying that 

new evidence may include evidence 


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deemed constructively received as of a 

date falling within a period when the 

record was open, if that evidence had 

never been part of the record on which 

a prior adjudication of the issue in 

question was based. 

Other commenters disagreed with the 

change in title for § 3.156(b), from 

‘‘Pending claim’’ to ‘‘Pending legacy 

claims not under the modernized review 

system,’’ resulting in the nonapplicability of current § 3.156(b) in the 

modernized system. The commenter 

asserted that VA had not provided a 

sufficient explanation for this choice. 

Section 3.156(b) provides generally 

that new and material evidence received 

while a claim is pending before VA 

must be considered as filed in 

connection with the pending claim, 

including evidence received after an 

initial decision is rendered and during 

the period available to file an appeal. 

One practical effect of this provision is 

that qualifying evidence received during 

the appeal period automatically requires 

VA to readjudicate the claim and issue 

a new decision. Such a requirement 

would be inconsistent with the structure 

of the new system. First, new 38 U.S.C. 

5104B(d) and revised 38 U.S.C. 7113 

mandate specific periods when the 

record is closed to new evidence, 

including during the period following 

an initial VA decision. Second, new 38 

U.S.C. 5104C and revised 38 U.S.C. 

5108 require a claimant who seeks VA 

readjudication based on new and 

relevant evidence to either file a 

supplemental claim with the agency of 

original jurisdiction or file a Notice of 

Disagreement and select a Board docket 

allowing the submission of new 

evidence. Defining and limiting the 

avenues available to a claimant for 

submission of new evidence during the 

claim stream is a primary feature of the 

AMA, which was designed, in part, to 

‘‘streamline VA’s appeal process’’ and 

‘‘help ensure that the process is both 

timely and fair.’’ H. Rep. No. 115–135 at 

5 (2017). Third, new 38 U.S.C. 5104C 

provides claimants with a choice of 

review options following receipt of an 

adverse initial VA decision—file for a 

higher-level review within the Veterans 

Benefits Administration (VBA), file a 

supplemental claim with new and 

relevant evidence for readjudication by 

the VBA, or file a notice of appeal to the 

Board. If VA were to automatically place 

the claim on a track for readjudication 

by the VBA upon receipt of new 

evidence, that action would effectively 

preempt the claimant’s choice. 

Therefore, because § 3.156(b) requires 

automatic readjudication upon the 

receipt of new evidence during the oneyear appeal period, it is clearly 

inconsistent with the statutory design of 

the new system. Nevertheless, excluding 

§ 3.156(b) from the regulations 

governing new system claims does not 

adversely impact a claimant’s right to 

obtain a VA readjudication on new and 

relevant evidence. It simply means that 

claimants must submit such evidence 

though the channels established by the 

AMA. Furthermore, automatic 

readjudication of claims is not 

mandated by 38 U.S.C. 5103, even 

though the implementing regulation for 

that provision, § 3.159(b), provides for 

automatic readjudication of legacy 

claims upon VA receipt during the 

appeal period of new evidence 

substantiating the claim. 38 U.S.C. 

5103(a)(1) requires VA to provide 

claimants, prior to an initial decision, 

with notice of information and evidence 

necessary to substantiate a claim. 

Section 5103(b)(1) requires the claimant 

to provide such evidence within one 

year of the date of the notice, but states 

in paragraph (b)(3) that VA is not 

prohibited from making the initial 

decision on a claim prior to the 

expiration of the one year. Consistent 

with these provisions, VA’s 

implementing regulations for legacy 

claims provide that if a claimant does 

not respond to the notice within 30 

days, VA may decide the claim prior to 

the expiration of the one-year period. 

See 38 CFR 3.159(b)(1). If VA does so 

and the claimant subsequently provides 

information or evidence substantiating 

the claim before the end of the one-year 

period, the regulations provide that ‘‘VA 

must readjudicate the claim.’’ Id. 

However, the regulatory procedure of 

automatically readjudicating the claim 

in these circumstances was not required 

by section 5103. Rather, when the key 

features of current 38 U.S.C. 5103 were 

enacted in 2000 and 2003 (in the 

Veterans Claims Assistance Act of 2000 

(VCAA) and the Veterans Benefts 

Improvement Act of 2003 (VBIA of 

2003), VA had a long-standing practice, 

as set forth in § 3.156(b), of 

automatically readjudicating a claim 

upon the receipt of additional evidence 

from a claimant—not just within the 

year following issuance of the 5103(a) 

notice, but within the longer one-year 

period beginning with the issuance of 

the initial decision. Following 

enactment of the VCAA, VA indicated 

that it would simply chose to maintain 

this practice. 66 FR 45,620, 45623 (Aug. 

29, 2001) (final rule). VA viewed the 

essence of 5103(b) not as requiring 

automatic readjudication, but as 

‘‘essentially an effective date provision 

governing the earliest date from which 

benefits may be paid if a claimant 

submits requested information and 

evidence.’’ Id. 

VA recognized that the longer period 

for submission of new evidence 

provided in § 3.156(b) might be in 

tension with the bar to awarding 

benefits in section 5103(b)(1) where 

supporting evidence was not received 

within a year of the VA notice, id., but 

that bar was removed in the VBIA of 

2003 and Congress substituted the 

requirement that the substantiating 

evidence ‘‘must be received by the 

Secretary within one year of the notice 

date.’’ 149 Cong Rec H 11,705, (Nov. 20, 

2003). At the same time, Congress added 

section 5103(b)(3), providing that VA is 

not prohibited from adjudicating a claim 

prior to the expiration of the one-year 

period following section 5103 notice. 

Congress explained, consistent with the 

view that section 5103(b) was 

essentially an effective date preservation 

provision, that the statutory changes 

were designed to promote the 

streamlined adjudication of claims, 

while ensuring that claimants had two 

essential rights: (1) The opportunity, 

following an initial decision, to submit 

substantiating information or evidence 

for VA readjudication within the oneyear period, and (2) in such cases, 

maintenance of the effective date 

associated with the filing of the claim. 

108 S. Rpt. 169 at 15 (‘‘In such cases, the 

one-year time period would still enable 

a claimant to submit the requested 

information or evidence and if benefits 

are granted on readjudication, assign an 

effective date of award as if VA had not 

made the initial decision.’’); see also 149 

Cong Rec H 11,705, 11,720 (Nov. 20, 

2003) (Explanatory Statement of the 

House and Senate Committees, 

indicating that the House accepted the 

provisions from the Senate Bill in this 

regard). 

The new system under the AMA 

affords claimants these essential rights, 

as claimants are entitled to a VA 

readjudication based on new and 

relevant evidence submitted within the 

one-year appeal period, while their 

effective date is protected. Rather than 

providing for an automatic 

readjudication, however, claimants 

must submit the new evidence in 

connection with a choice of review 

options. The claimant may file either a 

supplemental claim pursuant to 

§ 3.2501 or a Notice of Disagreement 

with the Board indicating selection of a 

docket allowing for the submission of 

additional evidence. If either filing is 

completed within the one-year period 

under the AMA to maintain continuous 

pursuit of the claim (generally one year 

from the date of issuance of the initial 

decision), the claimant will not lose the 


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effective date associated with the filing 

of the claim. The availability of 

readjudication based on new evidence 

under the AMA therefore fulfils the 

essential purpose of section 5103(b) as 

an effective date provision governing 

the earliest date from which benefits 

may be paid if a claimant submits 

requested information and evidence 

following an initial adjudication. 

Nothing in 38 U.S.C. 5103 or caselaw 

interpreting it requires VA to 

automatically readjudicate a claim or 

precludes orderly procedural 

requirements for the submission of new 

evidence following an initial decision. 

Similarly, there is no indication in the 

relevant legislative history that Congress 

understood itself to be creating such a 

requirement. Therefore, the AMA is not 

inconsistent with section 5103(b) and 

section 5103 does not require VA to 

create a special exception to the claim 

processing rules set forth in the new 

law. 

To the extent that section 5103(b) 

could be viewed as potentially 

conflicting with the AMA by providing 

an unrestricted right to submit evidence 

and receive readjudication for up to one 

year following the VCAA notice, 

notwithstanding the timing of any 

intervening VA decision, it would be 

VA’s duty to resolve the conflict for 

operational purposes. Therefore, 

regardless of whether one adopts the 

view that section 5103(b) provides such 

a right, VA interprets section 5103(b) 

and the AMA together to provide that 

evidence may be submitted in the oneyear period established by section 

5103(b), including following a VA 

decision, but must be submitted through 

the channels provided in the AMA 

when VA has issued an initial decision. 

VA believes that allowing submission of 

new evidence only through the channels 

provided in the AMA gives the 

maximum possible effect to both 

statutory provisions bearing on the issue 

and safeguards a claimant’s essential 

statutory rights. Further, as a matter of 

policy, creating a year-long exception to 

the structure of the AMA would 

introduce complexity and confusion to 

the new claims processing rules, both 

for VA adjudicators and claimants, and 

would substantially undermine the goal 

of the AMA to streamline the VA 

appeals system and allow VA to resolve 

appeals more quickly. 

Consistent with this discussion, VA 

eliminates § 3.156(b) for modernized 

system claims and makes conforming 

amendments to § 3.159, as discussed 

below, to require that new and relevant 

evidence, to the extent that it is 

submitted following a VA decision but 

within the year established in section 

5103(b), must be submitted to VA 

through the channels established by the 

new law. 

H. Comments Concerning § 3.159— 

Department of Veterans Affairs 

Assistance in Developing Claims 

The definition of a substantially 

complete application in 3.159 has been 

amended to add the requirement that a 

supplemental claim application include 

or identify potentially new evidence 

and that a higher-level review request 

identify the date of the decision for 

which review is sought. VA’s duty to 

assist is reinstated when a substantially 

complete initial claim or supplemental 

claim is filed or when a claim is 

returned to correct a ‘‘duty to assist’’ 

error in a prior decision as required by 

38 U.S.C 5103A(f), as amended by the 

AMA. 

One commenter is concerned with the 

term ‘‘potentially new evidence’’ as 

used in §§ 3.159(a)(3)(vii) and in 

3.160(a)(6). In this context, ‘‘potentially 

new evidence’’ references evidence that 

may be new and relevant to the claim, 

thereby providing some potential basis 

for a supplemental claim. As 

adjudicated in the supplemental claim 

process, evidence submitted or 

identified by a claimant may be found 

to be duplicative, not relevant, or 

otherwise not new. If this is the case, 

the adjudicator then must issue a 

decision indicating that there is not 

sufficient evidence to readjudicate the 

claim. If the evidence is found to be new 

and relevant, the claim must be 

readjudicated. This identification of 

‘‘potentially new evidence’’ is 

consistent with § 3.2501. For the above 

reasons, VA make no changes to § 3.159 

based upon the comment. 

However, VA is making technical 

amendments to § 3.159 in the final rule 

necessary to conform with the 

procedural requirements of the AMA. 

Specifically, paragraph (b)(4) is added 

and paragraph (b)(1) is amended to 

clarify, consistent with new section 

5104C, that submission of new evidence 

following an initial VA decision must be 

accomplished either by filing a 

supplemental claim on a form 

prescribed by the Secretary or by filing 

a Notice of Disagreement with the Board 

on a form prescribed by the Secretary 

and selecting a review option allowing 

for the submission of new evidence. As 

explained above in the prior section, VA 

views these amendments as consistent 

with section 5103. 

I. Comments Concerning § 3.160— 

Status of Claims 

While the AMA does not specifically 

address status of claims, the law did, 

however, replace ‘‘a claim for reopening 

a prior decision on a claim, or a claim 

for increase of benefits’’ with 

‘‘supplemental claim’’ in section 

5103(a). Further, section 5104C(a)(2)(D) 

places the authority to develop policy in 

this area on the Secretary. 

Claimants may request review of VA’s 

decision by submitting a supplemental 

claim after a decision by the agency of 

original jurisdiction, the Board, or the 

CAVC. VA proposed revising § 3.160(e) 

to reflect the requirement that as of the 

applicability date of the new law, VA 

will no longer accept requests to 

‘‘reopen’’ claims and a claimant must 

file a supplemental claim under 

§ 3.2501 to seek review of a finally 

adjudicated claim for a previously 

disallowed benefit. 

One commenter contends that those 

who have filed their claims in the legacy 

system have the right to have those 

claims adjudicated in the legacy system 

and VA cannot force them into the 

modernized system outside of the 

statutorily prescribed opt-in periods 

citing that the courts have held a 

claimant has the right to demand the 

benefit of the laws in existence at the 

time the claim was filed and any new 

laws that come into existence during 

that claim’s pendency that are more 

favorable to the claimant, absent a 

specific indication that the change in 

law was intended to be retroactive. VA 

agrees with the commenter in part; 

however, VA did not propose to apply 

a new law that is less advantageous to 

the claimant. By requiring the filing of 

a supplemental claim, VA will no longer 

require claimants to identify new and 

material evidence to reopen a finally 

adjudicated claim. VA will now allow 

the submission of evidence that is ‘‘new 

and relevant’’, which Congress has 

indicated is a lesser standard and 

reduces the claimant’s burden. In 

addition, this change in filing 

requirement does not change VA’s 

review of the claim and application of 

the laws in effect at the time the claim 

was originally decided when 

readjudicating the claim. What VA 

intends, by allowing claimants with 

legacy claims to file under the 

supplemental claim framework, is to 

reduce claimants’ filing burden while 

still maintaining all requirements for 

review of the decision based on all 

applicable laws and regulations whether 

in existence at the time of prior decision 

or now. For these reasons, no changes 

are made based on this comment. 

J. Comments Concerning § 3.328— 

Independent Medical Opinions 

The AMA repealed 38 U.S.C. 7109, 

which authorized the Board to obtain 


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independent medical opinions (IMOs). 

This repeal removed the ability for the 

Board to request IMOs. Under 38 U.S.C. 

5103A(f)(2) and 5109(d), as added by 

the AMA, the Board will, when deemed 

necessary, direct the agency of original 

jurisdiction to obtain an IMO. VA 

proposed to amend § 3.328 to include a 

requirement that VBA process IMO 

instructions received from the Board. 

One commenter requested 

clarification on the definition of 

‘‘director of the Service’’ in § 3.328(c). 

Previous language referenced approval 

to be ‘‘granted only upon a 

determination by the Compensation 

Service or the Pension and Fiduciary 

Service’’. The change to ‘‘director of the 

Service’’ in § 3.328(c)(1)(i) is necessary 

because the modernized system affects 

all VA administrations and is not 

limited to the Veterans Benefits 

Administration’s Compensation Service 

and Pension and Fiduciary Service. To 

address the commenter’s concern, VA is 

adding language to clarify the meaning 

of ‘‘director of the Service’’. 

Another commenter requested clarity 

on the use of the word ‘‘obscurity’’ and 

the phrase ‘‘such controversy in the 

medical community at large’’ in 

proposed § 3.328(c)(1)(i) and 

recommended a revision to reflect the 

language of the statute. VA agrees that 

the regulation should track the language 

of the statute and revised § 3.328(c)(1)(i) 

accordingly. 

K. Comments Concerning § 3.2400— 

Applicability of Modernized Review 

System 

The AMA provides direction on the 

applicability of the modernized review 

system. Accordingly, § 3.2400 defines 

which claims are processed under the 

modernized review system and which 

clams are processed under the legacy 

appeals system. § 3.2400 also clarifies 

that the new review system will 

generally apply to initial decisions 

provided on or after the effective date 

denying requests to revise a decision by 

the agency of original jurisdiction based 

on CUE. 

One commenter interpreted proposed 

§ 3.2400, specifically the provision 

proscribing supplemental claims based 

upon CUE, as somehow limiting CUE 

claims generally. However, § 3.2400 

clarifies that the new review system will 

generally apply to initial decisions 

issued on or after the effective date of 

this final rule, to include decisions 

denying requests to revise a decision by 

the agency of original jurisdiction based 

upon CUE. Although such requests are 

not ‘‘claims’’ subject to the AMA 

because the requester is not pursuing a 

claim for benefits pursuant to part II or 

III of Title 38 of the U.S. Code, Livesay 

v. Principi, 15 Vet. App. 165, 178–179 

(2001), it is VA’s policy to allow the 

requestor to elect review of such 

decisions in the higher-level review lane 

or through an appeal to the Board. 

Revision of a decision based upon CUE 

cannot be requested in a supplemental 

claim because CUE must be based upon 

the facts and law that existed at the time 

of the prior decision, not new and 

relevant evidence. For these reasons, VA 

does not make any changes based upon 

the comment. 

Another comment expressed concern 

that character of discharge 

determinations are not expressly 

addressed in § 3.2400. While character 

of discharge determinations could be 

reviewed under the modernized review 

process, the AMA does not specifically 

implicate or change any existing law 

regarding character of discharge 

determinations. Accordingly, no 

changes are made based on this 

comment. 

L. Comments Concerning § 3.2500— 

Review of Decisions 

In the legacy appeals process, 

claimants who are dissatisfied with the 

initial decision on their claim are given 

only one avenue to seek review of that 

decision. The new system created by the 

AMA allows claimants to choose from 

several different review options. 

Congress added 38 U.S.C. 5104C to 

provide claimants with streamlined, 

early resolution options within the 

agency of original jurisdiction or in an 

appeal directly to the Board. VA 

proposed to add § 3.2500 to implement 

the new decision review options and set 

forth the rules that apply to those 

options under section 5104C. In line 

with the statutory requirements, VA 

proposed to allow a claimant to file for 

one of the three review options upon 

receipt of a decision by the agency of 

original jurisdiction on an initial claim. 

Under § 3.2500(b), a claimant will be 

able to elect a different review option 

for each issue adjudicated in the 

decision. It is clear from § 3.151(c) that 

the term ‘‘issue’’ refers to a distinct 

determination of entitlement to a 

benefit, such as a determination of 

entitlement to service-connected 

disability compensation for a particular 

disability. An ‘‘issue’’ is distinct from a 

‘‘claim’’ in that a claim may contain one 

or more issues. 

Several commenters expressed 

concern over § 3.2500(b), which 

provides that a claimant may not elect 

to have the same issue reviewed 

concurrently under different review 

options, consistent with section 

5104C(a)(2)(A). Some of these comments 

were specific to the concurrent election 

of a different review lane while an 

appeal is simultaneously being 

reviewed by a federal court. In general, 

it is inefficient and raises potential 

conflicts for the same issue to be 

reviewed concurrently by two different 

processes (e.g., concurrent review in 

multiple review lanes or in a review 

lane and at a court). These different 

review lanes may come to different 

conclusions. This final rule establishes 

a process for a potentially different 

conclusion in a lane than in a previous 

lane. It is inefficient and confusing for 

those conclusions to be reached separate 

from each other without the benefit of 

the other review’s conclusions. The 

appropriate method for a claimant to 

seek a different conclusion is to allow 

for a decision to be made, then seek 

another appropriate review option to 

address any additional evidence, 

difference of opinion, or perceived error 

in the prior conclusion. VA also notes 

that concurrent review of a matter by a 

lower level review lane and a federal 

court is prevented as a matter of law, 

due to VA’s lack of jurisdiction to 

review a matter pending before a higherlevel authority. Accordingly, no changes 

are made to § 3.2500(b) based on these 

comments. 

One commenter expressed a belief 

that the proposed rule limits the options 

for a claimant to appeal downstream 

issues to reviewing them all in a single 

lane. The example offered by the 

commenter was a case in which the 

Board grants service connection for a 

left knee condition, but the claimant 

disagrees with the effective date and 

percentage of disability assigned by the 

Board, and the claimant must choose 

one lane for adjudication for each of 

these issues, even though the effective 

date issue might be better resolved in a 

higher-level review and the evaluation 

might be better resolved in a 

supplemental claim. The proposed rule 

did not specifically address downstream 

issues, which are those that necessarily 

arise from a decision on one element of 

a claim. Ratings and effective dates, 

using the commenter’s example, are 

separate issues that may arise from a 

Board grant of service connection. 

VA recognizes that a claimant might 

sometimes want to seek review of each 

downstream issue in a different lane. 

However, as VA discussed in the 

preamble to the proposed rule, allowing 

a claim to be splintered into several 

pieces for review, each potentially 

subject to different evidentiary rules and 

timelines, would render the new review 

system administratively unworkable, 

risk self-contradictory decision-making 

by VA, and undermine Congressional 


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intent to streamline the review process 

and reduce adjudication times. 

Although problems would not 

necessarily arise in every instance, from 

the standpoint of administering an 

entire system that produces timely 

adjudications for all claimants, VA must 

attempt to achieve a balance between 

more flexibility for individual claimants 

and administrative efficiency that 

benefits all veterans. Based on extensive 

experience administering a claims 

adjudication system, and considering 

that one of the express goals of the AMA 

is to improve the effciency of VA claims 

and appeals processing and reduce 

overall wait times, VA will not allow 

claimants to choose different review 

lanes for downstream issues. Rather, 

each separate benefit entitlement sought 

by a claimant is considered an issue as 

defined in § 3.351(c) and cannot be split 

into different review lanes for purposes 

of admistrative review. VA makes no 

regulatory changes based on the 

comment. 

Some commenters suggested that the 

regulatory provision indicating review 

options following a Board decision 

should include reference to the option 

to file a notice of appeal with the U.S. 

Court of Appeals for Veterans Claims 

(CAVC). VA agrees and revises 

§ 3.2500(c)(3) accordingly. Other 

commenters suggested that proposed 

§ 3.2500(c)(4) should track the statutory 

language providing that the one-year 

period for continuous pursuit begins 

upon issuance of a CAVC decision, 

rather than a CAVC judgment. VA 

agrees and revises the language in 

§ 3.2500(c)(4) accordingly. 

Proposed § 3.2500(d) implements 

section 5104C(a)(2), providing that the 

Secretary may, as the Secretary 

considers appropriate, implement a 

policy for claimants to switch between 

the different review options. A claimant 

or the claimant’s duly appointed 

representative may, for example, wish to 

withdraw a request for higher-level 

review or a supplemental claim at any 

time prior to VA issuing notice of 

decision. VA proposed in § 3.2500(d) 

that a claimant may, if the withdrawal 

takes place within the one-year period 

following notice of the decision being 

reviewed, timely elect another review 

option to continuously pursue the claim 

and preserve the potential effective date 

for payment of benefits. 

Two commenters expressed concern 

that section 5104C(a)(2) does not impose 

a time limit on selecting additional 

review options upon withdrawal. 

However, section 5104C(a)(2)(D) places 

the discretion to develop policy in this 

area with the Secretary of Veterans 

Affairs. Under the AMA (sections 

5104B, 5104C, 5110, and 7105), and in 

order to ensure efficiency, consistency, 

and timeliness, option election periods 

are consistently one year from the date 

of the decision with which the claimant 

disagrees. A withdrawal and election of 

a new option must necessarily also be 

based on the date of that decision. For 

example, a claimant receives an 

unfavorable decision and requests a 

higher-level review. Sometime during 

the year following the claim decision, 

but before the higher-level review 

request has been adjudicated, the 

claimant decides to change to the 

supplemental claim lane. The 

supplemental claim must be filed 

within that same year from the last 

decision date. As long as a claimant 

submits a supplemental claim within 

the same one-year period that follows 

the relevant decision, VA will consider 

this to be a continuously pursued claim 

and continue to base the effective date 

of an award of benefits on the filing date 

of the initial claim. This benefits the 

claimant by ensuring there are clearer 

periods of time associated with 

processing an action and definitive 

decision points in the process on which 

to better determine if further action is 

desired while protecting the effective 

date. Accordingly, no changes are made 

to § 3.2500 based on these comments. 

Concern was expressed regarding lane 

changes after the one-year period 

described above, but before a decision 

review request has been adjudicated. 

VA understands the concern regarding 

withdrawing from one lane in favor of 

another, particularly if the one-year 

period has expired. Accordingly, VA 

will consider requests to extend the oneyear period for claimants in one review 

lane to switch to the supplemental 

claim lane through the above-described 

procedure without loss of the current 

effective date. Such requests will be 

considered on a case-by-case basis for 

good cause shown under § 3.109(b). 

Section 3.109(b) generally allows for 

requests to extend time limits within 

which claimants are required to act 

based on good cause, and allows such 

requests to be made after the relevant 

time period has expired subject to 

specified procedural requirements. The 

only lane into which a claimant may 

switch after the one-year period has 

expired is the supplemental claim lane 

based on new and relevant evidence, 

regardless of whether a good cause 

exception is allowed for purposes of 

maintaining continuous pursuit of the 

claim. 

VA makes changes in § 3.2500(e) in 

accordance with the above discussion in 

response to the comment. 

VA also makes technical changes to 

§ 3.2500(d), including adding the 

requirement that withdrawal of a 

supplemental claim or a request for a 

higher-level review must be in writing 

or through electronic submission in a 

manner prescribed by the Secretary and 

must be filed with the agency of original 

jurisdiction. These changes are required 

for orderly administrative processing 

and to provide useful information to 

claimants. 

M. Comments Concerning § 3.2501— 

Supplemental Claims 

VA received multiple comments 

requesting clarification about electronic 

submissions in § 3.2501. These 

comments correctly identify that 

§ 3.2501 states that applications may be 

made ‘‘in writing’’ and says nothing 

about electronic submissions. VA agrees 

on the need for clarification regarding 

electronic submissions. Accordingly, 

VA revises § 3.2501 to clarify that a 

claimant or their authorized 

representative may submit 

supplemental claims in writing or 

electronically, consistent with 

§ 3.160(a). Additionally, clarity is added 

regarding new and relevant evidence 

that may be in custody of the VA when 

reasonably identified by the claimant 

consistent with revisions in 

§ 3.103(c)(2). The definition of new and 

relevant evidence in § 3.2501(a)(1) is 

revised in a similar manner to the 

revision of § 3.156 regarding evidence 

not previously ‘‘considered by’’ agency 

adjudicators. 

N. Comments Concerning § 3.2502— 

Returns by Higher-Level Adjudicator or 

Remand by the Board of Veterans’ 

Appeals 

Several commenters expressed 

confusion over the inclusion of the term 

‘‘adjudication activity.’’ VA agrees that 

our use of this term in the proposed rule 

was confusing. Accordingly, VA revises 

§ 3.2502 to use the term ‘‘agency of 

original jurisdiction’’ throughout the 

final rule. Similarly, commenters 

requested further clarity on what it 

means to ‘‘take immediate action to 

expedite readjudication.’’ The AMA 

amended 38 U.S.C. 5109B to state, ‘‘The 

Secretary shall take such actions as may 

be necessary to provide for the 

expeditious treatment by the Veterans 

Benefits Administration of any claim 

that is returned by a higher-level 

adjudicator under section 5104B of this 

title or remanded by the Board of 

Veterans’ Appeals.’’ VA agrees that 

clarification is necessary and revises 

§ 3.2502 to more closely mirror the 

statutory language. The statute does not 

further define what is meant by 


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‘‘expeditious,’’ leaving timely treatment 

of claims to the Secretary. Clearly, 

Congress intended that VA would 

process these claims as expeditiously as 

possible depending upon available 

resources. VA will similarly not further 

define ‘‘expeditious’’ in the rule to 

provide the Secretary the discretion to 

direct expeditious processing of actions 

through allocation of available 

resources, appropriate prioritization of 

workload, and issuance of procedures. 

O. Comments Concerning § 3.2601— 

Higher-Level Review 

The higher-level review consists of a 

closed evidentiary record and does not 

allow for the submission of new 

evidence or a hearing. While the closed 

evidentiary record does not allow for 

submission of new evidence, VA 

proposes to provide claimants and/or 

their representatives with an 

opportunity to point out any specific 

errors in the case as part of the higherlevel review. The sole purpose of an 

informal conference is to provide a 

claimant or his or her representative 

with an opportunity to talk with the 

higher-level adjudicator so that the 

claimant and/or his or her authorized 

representative can identify errors of fact 

or law in the prior decision. To comply 

with the statutory requirement of a 

closed evidentiary record, VA would 

not allow claimants or representatives to 

supplement the evidentiary record 

during the informal conference through 

the submission of new evidence or 

introduction of facts not present at the 

time of the prior decision. 

Several commenters expressed 

concern over the term ‘‘good cause’’ in 

§ 3.2601(e) as it relates to VA’s ability to 

conduct the higher-level review at the 

office which rendered the initial 

decision when desired by the claimant. 

VA agrees that clarity is needed. 

Accordingly, language is added for 

clarification regarding situations in 

which the VA may not be able to 

conduct the higher-level review at the 

office which rendered the initial 

decision. 

P. Comments Concerning General 

Timeliness 

VA received several comments 

recommending timelines and goals 

related to timeliness be included in the 

rule. VA is committed to the purpose of 

appeals modernization, which is to 

provide fair, efficient, and more timely 

resolution of cases in which a claimant 

disagrees with a VA decision. Though 

VA intends to maintain a 125-day 

average goal for completion of higherlevel reviews and supplemental claims, 

the statute does not require a specific 

goal and the Secretary must retain the 

authority and responsibility to monitor 

and prioritize workload, allocate 

resources appropriately, and establish 

appropriate procedures to best meet 

priorities established by any given 

change in administration or policy. 

Regulating a specific goal eliminates the 

judgement and decision-making 

authority of the Secretary and reduces 

the ability to adapt to change 

appropriately. Goals and timelines for 

timely completion of VA processes will 

be established and monitored through 

VA procedures and policy. For these 

reasons, no changes are made based on 

these comments. 

Q. Comments Outside the Scope of the 

Rule 

One commenter suggested using nonVA staff, physicians, or case managers at 

non-VA facilities to be trained in the 

claims and appeals process in order to 

fulfill the duty to assist responsibility, 

stating this would shorten the claims 

and appeals process. This comment is 

outside the scope of the proposed rule 

because it relates to the specific 

methods in which VA accomplishes the 

training and management of the law and 

regulations. Therefore, no change is 

made based on this comment. 

Another comment concerned denial 

rates under the Rapid Appeals 

Modernization Program (RAMP). This 

comment is outside the scope of the 

proposed rule, therefore, no change is 

made based on this comment. 

Part 8—National Life Insurance 

Program 

Based on comments received relative 

to part 3, language in § 8.30 is adjusted 

to be standardized with the language 

used in Part 3 in reference to favorable 

findings, supplemental claims, and 

higher-level reviews. 

Part 14—Legal Services, General 

Counsel, and Miscellaneous Claims 

For the reasons set forth in the 

proposed rule and in this final rule, VA 

is adopting the proposed amendments 

to 38 CFR part 14 as final, with minor 

changes, as explained in the section-bysection supplementary information 

below. These regulations govern 

recognition of veterans service 

organizations (VSO); accreditation of 

attorneys, agents, and VSO 

representatives; representation of 

claimants before VA, including the rules 

of conduct applicable while providing 

claims assistance; and fees charged by 

attorneys and agents for representation. 

R. Comment Concerning § 14.631— 

Powers of Attorney; Disclosure of 

Claimant Information 

VA proposed only one change to 

current § 14.631, to update a reference 

in paragraph (c) from 38 CFR 20.608 to 

38 CFR 20.6 to reflect proposed 

revisions to the Board of Veterans’ 

Appeals’ (Board) Rules of Practice. 

Nevertheless, VA received one 

comment, from a VA-recognized VSO, 

asking VA to clarify how claimants may 

change representation and what their 

‘‘continuing obligations’’ might be, and 

specifically asking for clarification as to 

how a claimant would change 

representation from an attorney to a 

veterans service organization. Although 

the commenter asked this question in 

regard to the organization’s clients, the 

comment pertains to other scenarios as 

well, including when a claimant 

changes representation from one 

attorney or agent to another attorney or 

agent or from an attorney or agent to 

proceeding without representation. 

As a starting point, unless an appeal 

is before the Board, the claimant may 

discharge the attorney or agent at any 

time and for any reason. A claimant may 

do so by informing VA of the revocation 

or by filing a new power of attorney. 

Attorneys, agents, and VSOs are also 

permitted to withdraw from 

representation while the case is before 

the agency of original jurisdiction (AOJ) 

so long as the withdrawal would not 

adversely impact the claimant’s 

interests or if there is good cause for the 

withdrawal such as if the claimant 

pursues a course of action that the 

representative believes to be fraudulent 

and is being furthered through the 

representative’s representation on the 

claim. Current § 14.631 identifies the 

effect of withdrawal from representation 

and the effect of a revocation of a power 

of attorney. Withdrawal before the 

Board, proposed § 20.6, sets forth a 

different procedure and, in some 

circumstances, a higher standard that 

must be met before a representative is 

permitted to withdraw. Upon 

withdrawing from representation, the 

representative must generally return all 

of the claimant’s property to the 

claimant. 

Under § 14.631(f)(1), receipt of a new 

power of attorney by VA generally 

revokes existing powers of attorney. 

Under § 14.631(f)(2), however, an agent 

or attorney may limit the scope of his 

or her representation to a particular 

claim by describing the limitation on 

VA Form 21–22a. If a VA Form 21–22a, 

which limits the scope of representation 

to a particular claim, is submitted, after 

a VA Form 21–22 or VA Form 21–22a 


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that did not, then the, organization or 

individual with a prior unlimited power 

of attorney would retain representation 

for all claims before VA with the 

exception of the particular claim 

indicated on the new VA Form 21–22a 

with the limited scope. Conversely, 

under § 14.631(f)(1), if VA receives a 

new VA Form 21–22 or VA Form 21– 

22a, which contains no limitations in 

scope, it would revoke an existing 

power of attorney even if the initial VA 

Form 21–22a indicated that it was 

limited in its scope to a particular claim. 

VA will make no further changes to 

§ 14.631 based on this comment. 

As to the claimant’s continuing 

obligations to the attorney or agent 

pertaining to fees, this aspect of the 

comment will be discussed further 

below with regard to § 14.636. 

S. Comment Concerning § 14.632— 

Standards of Conduct for Persons 

Providing Representation Before the 

Department 

In § 14.632(c)(6), VA proposed to 

amend the current regulation which 

provides, ‘‘An individual providing 

representation on a particular claim 

under § 14.630, representative, agent, or 

attorney shall not . . . [s]olicit, receive, 

or enter into agreements for gifts related 

to representation provided before an 

agency of original jurisdiction has 

issued a decision on a claim or claims 

and a Notice of Disagreement has been 

filed with respect to that decision.’’ 

(Emphasis added.) VA proposed new 

language that would state, ‘‘An 

individual providing representation on 

a particular claim under § 14.630, 

representative, agent, or attorney shall 

not . . . [s]olicit, receive, or enter into 

agreements for gifts related to services 

for which a fee could not lawfully be 

charged.’’ (Emphasis added.) One 

commenter supported the premise of the 

provision because it would discourage 

unethical charging of fees disguised as 

gifts, but the commenter urged VA to 

clarify that VA does not intend to 

include de minimis gifts within the 

prohibition. The commenter noted that 

veterans or their families may want to 

send small tokens of gratitude to 

advocates. 

VA has not changed the language 

from the proposed rule. Section 

14.632(c)(6), as well as other provisions 

such as current § 14.628(d)(2)(i) 

(essentially prohibiting recognized 

organizations and their accredited 

representatives from charging or 

accepting a ‘‘fee or gratuity for service 

to a claimant’’), implement statutory 

prohibitions or limitations on the 

charging of fees, such as those contained 

in 38 U.S.C. 5902(b)(1)(A) and 

5904(c)(1). VA appreciates the 

commenter’s support for preventing 

unethical behavior and recognizes that 

most accredited practitioners would not 

attempt to circumvent statutory or 

regulatory prohibitions on charging fees 

through the acceptance of gifts. But, 

unfortunately, based on VA’s experience 

monitoring the conduct of accredited 

individuals and addressing complaints 

received regarding the receipt of gifts 

and donations, VA does not believe that 

exceptions to the rule should be 

recognized because doing so could open 

the door to potential abuses. Indeed, to 

be clear, VA believes that, in 

circumstances in which a fee would be 

unlawful, a prudent practitioner would 

return any gift to the donor to avoid the 

appearance of a violation of the 

standards of conduct in § 14.632. VA 

declines to alter the proposed language 

or otherwise offer the clarification or 

exception for de minimis gifts requested 

by the commenter. To assuage the 

commenter’s concerns, VA notes that 

the prohibition in § 14.632(c)(6) does 

not extend to accepting de minimis gifts 

under circumstances where a fee could 

be charged by the agent or attorney, but 

cautions that if the gift is determined 

not to be de minimis it could prevent 

the attorney or agent from directly 

collecting a fee from VA out of the 

claimant’s past-due benefits (where a fee 

may be charged but must be contingent 

on whether the matter is resolved in a 

manner favorable to the claimant and 

may not exceed 20 percent of the total 

amount of the past-due benefits 

awarded). Acceptance of such a ‘‘gift’’ in 

addition to the amount to be paid 

directly from past due benefits could 

cause the fee charged to exceed 20 

percent of past due benefits. VA notes 

that in many jurisdictions the 

appropriateness of accepting of a gift 

under circumstances when a fee could 

be charged would still be governed by 

a version of Rule 1.8(c) of the American 

Bar Association’s Model Rules of 

Professional Conduct—which generally 

prohibits attorneys from soliciting 

substantial gifts from clients—and by 

extension, current § 14.632(d), which 

provides that an accredited attorney is 

bound by ‘‘the rules of professional 

conduct of any jurisdiction in which the 

attorney is licensed to practice law.’’ 

T. Comments Concerning § 14.636— 

Payment of Fees for Representation by 

Agents and Attorneys in Proceedings 

Before Agencies of Original Jurisdiction 

and Before the Board of Veterans’ 

Appeals 

VA proposed multiple changes to 

§ 14.636. VA did not receive comments 

on all the proposed changes and will 

only address here those pertinent to the 

comments. One commenter objected to 

language in proposed § 14.636 that was 

proposed to reflect how Public Law 

115–55 changes the starting point at 

which fees for representation may be 

charged. The commenter specifically 

objected to the phrase ‘‘if notice of the 

decision on a claim or claims was 

issued on or after the effective date of 

the modernized review system as 

provided in § 19.2(a)’’ in proposed 

§ 14.636(c)(1)(ii) and the phrase ‘‘a 

Notice of Disagreement has been filed 

with respect to that decision on or after 

June 20, 2007’’ in both proposed 

§ 14.636(c)(2)(i) and (c)(2)(ii). The 

commenter also objected to all of 

proposed § 14.636(c)(3), which states 

the limitations on whether an attorney 

or agent can charge a fee in cases in 

which a Notice of Disagreement was 

filed on or before June 19, 2007. 

As VA explained in the preamble to 

the proposed rule, current 38 U.S.C. 

5904(c)(1) directs that agents and 

attorneys may be paid for services 

provided after a Notice of Disagreement 

is filed in a case. VA proposed language 

in § 14.636(c) to implement the change 

in section 2(n) of Public Law 115–55 

that fees may be charged upon VA’s 

issuance of notice of an initial decision 

on a claim. The commenter correctly 

recognizes that the proposed regulation 

describes ‘‘multi-level predicates’’ for 

when it is permissible for attorneys and 

agents to charge fees. The basis for this 

structure is the fact that Congress has 

shifted the delimiting event for when 

fees may be charged by agents and 

attorneys three times, most recently 

with the passage of Public Law 115–55. 

When Congress has done so, VA has 

structured § 14.636 and its predecessor, 

former 38 CFR 20.609, to reflect the 

statutory amendments to 38 U.S.C. 5904 

and its predecessor, former 38 U.S.C. 

3404, using the effective dates of the 

Public Laws. VA’s structure of proposed 

§ 14.636 only continues this structure. 

This is best reflected by proposed 

§ 14.636(c)(3), which is identical in 

language to current § 14.636(c)(2), 

having been renumbered from (c)(2) to 

(c)(3) because proposed subparagraph 

(c)(1) has been added to the regulation 

address fees under the modernized 

appeal system. 

But the commenter asserts that such 

a structure for the regulation is ‘‘not 

supported by the plain language of the 

statute.’’ The commenter explains that 

38 U.S.C. 5904(c)(1), as amended by 

Public Law 115–55, will state, in 

pertinent part, the limit on fees as, ‘‘a 

fee may not be charged, allowed, or paid 

for services of agents and attorneys with 

respect to services provided before the 


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date on which a claimant is provided 

notice of the agency of original 

jurisdiction’s initial decision under 

section 5104 of this title with respect to 

the case.’’ So, the commenter reasons, 

the only limitation supported by the 

plain language of the amended statutory 

section is that the claimant has been 

provided notice of the AOJ’s initial 

decision under 38 U.S.C. 5104 

regardless of when it was issued or if a 

Notice of Disagreement or Board 

decision followed. 

The commenter urges a reading of 

Public Law 115–55—essentially as a 

retroactive repeal of prior versions of 

sec. 5904(c)(1) rather than a prospective 

amendment—which would 

impermissibly ignore part of the statute. 

Although VA referred specifically to 

section 2(n) of Public Law 115–55 in the 

preamble to explain the basis for 

proposed § 14.636, the structure 

provided in the regulation also 

encompasses section 2(x) of Public Law 

115–55, which states that the 

amendments made by the public law 

only apply to claims for which a notice 

of decision is provided by the AOJ on 

or after the effective date of the new 

review system. In addition to ignoring 

sec. 2(x), the expansion of the language 

in sec. 2(n) urged by the commenter is 

unrelated to the primary aim of Public 

Law 115–55—to amend, going forward, 

the procedures applicable to 

administrative review and appeal of VA 

decisions on claims for benefits in order 

to create a new, modernized review 

system. Accordingly, VA declines to 

change the structure of the proposed 

rule based on this comment. However, 

in reviewing the proposed rule in light 

of the comment, VA did discover a gap 

between the language for proposed 

paragraphs 14.636(c)(1)(ii) and (c)(2)(ii), 

regarding when agents and attorneys 

may charge fees for representation 

provided with respect to a request for 

revision of a decision of an AOJ under 

38 U.S.C. 5109A or the Board under 38 

U.S.C. 7111 based on clear and 

unmistakable error. 

This gap was created by VA’s 

mistaken reference, in proposed 

§ 14.636(c)(2)(ii), to the notice of the 

decision on the request for revision 

rather than the notice of the decision 

that is being challenged based on clear 

and unmistakable error. By requiring the 

notice of decision on the request for 

revision to be issued before the effective 

date of the modernized review system, 

it created a gap involving circumstances 

in which the request for revision of a 

prior decision based on clear and 

unmistakable error is filed after the 

effective date of the modernized review 

system but challenges the decision that 

was issued prior to the modernized 

review system and for which a Notice of 

Disagreement had been filed after June 

20, 2007. The proposed language would 

have meant that agents and attorneys 

could not charge fees under these 

circumstances until after VA had issued 

a decision on the request for revision. 

Despite the proposed language 

indicating otherwise, VA had intended 

to permit agents and attorneys to charge 

fees for representation provided with 

respect to a request for revision of a 

decision of an agency of original 

jurisdiction under 38 U.S.C. 5109A or 

the Board of Veterans’ Appeals under 38 

U.S.C. 7111 based on clear and 

unmistakable error if notice of the 

challenged decision was issued before 

the effective date of the modernized 

review system; a Notice of Disagreement 

was filed with respect to the challenged 

decision on or after June 20, 2007; and 

the agent or attorney has complied with 

the power of attorney requirements in 

§ 14.631 and the fee agreement 

requirements in § 14.636(g). VA has 

revised the amendatory language to 

address this unintended gap so that an 

attorney or agent may charge a fee in 

these circumstances regardless of 

whether VA has already issued a 

decision on the request for revision. 

Further, VA has also revised 

§ 14.636(c)(1)(ii) to clarify that an 

attorney or agent may charge a fee for 

representation provided on a request to 

revise a decision based on clear and 

unmistakable error if the notice of the 

decision being challenged based on 

clear and unmistakable error was issued 

after the modernized review system. 

Additionally, VA has added language in 

§ 14.636(c)(1)(i) to clarify that, in 

requests for revision based on clear and 

unmistakable error that are not 

otherwise addressed in § 14.636(c)(1)(ii) 

or (c)(2)(ii) (e.g., requests challenging 

decisions issued before June 20, 2007), 

a decision on the request for revision 

will be considered the initial decision 

for purposes of allowing fees to be 

charged for representation. 

The same commenter recommended 

that VA define the term ‘‘case’’ as used 

in 38 U.S.C. 5904(c)(1), as amended by 

Public Law 115–55, to include all 

requests by a specific individual for a 

specific monetary benefit (e.g., 

compensation, pension, or dependency 

or indemnity compensation) within a 

single case. Under the interpretation 

suggested by the commenter, once an 

individual receives an initial decision 

with respect to a specific type of benefit, 

fees could be charged for any 

subsequent services provided with 

respect to the same type of ‘‘benefit,’’ 

even if the services related to a claim 

with an entirely different basis (e.g., an 

initial decision with respect to 

compensation for hearing loss would 

permit fees to be charged with respect 

to the veteran’s subsequent application 

for compensation based on service 

connection for a mental disorder). VA 

disagrees with commenter because such 

a rule would untie the term ‘‘case’’ from 

the initial decision by the AOJ. The 

commenter’s proposal would have the 

effect of permitting agents and attorneys 

to charge fees to file claims, except the 

very first claim filed under a specific 

benefit program. If Congress had 

intended such a result, it could have 

accomplished it by repealing or 

replacing the ‘‘with respect to the case’’ 

language in its entirety. Congress did 

not, and, therefore, VA will not interpret 

the amended statute in a manner that 

would essentially achieve that result in 

the absence of any indication that this 

was Congress’ intent. 

As to the more general aspect of the 

commenter’s suggestion that VA should 

expressly define the term ‘‘case,’’ at this 

time, VA does not believe that it is 

necessary to expressly define the term 

in regulation to explain under what 

circumstances an agent or attorney may 

charge fees. Rather, in proposed 

§ 14.636(c), VA continues to explain the 

term for the purpose of fees in the 

context of a ‘‘claim’’ and maintains the 

general position that VA must be 

allowed to decide a matter before paid 

representation is available. See 73 FR 

29852, 29868 (May 22, 2008) (the final 

rule shifting, pursuant to Public Law 

109–461, the delimiting point for the 

restriction of fees to the Notice of 

Disagreement with respect to the case). 

VA recognizes that the term ‘‘claim’’ has 

different meanings in different contexts 

other than attorney’s fees, so to clarify 

the application of the rule VA has 

provided guidance in proposed 

§ 14.636(c) on three of the more 

nuanced circumstances relating to fees: 

Supplemental claims, claims for 

increase in a rate of disability, and 

requests for revision of a prior decision 

based on clear and unmistakable error. 

VA believes that the proposed 

§ 14.636(c) provided sufficient guidance 

as to when, and under what 

circumstances, a fee may be charged, 

but has opted to revise the language to 

clarify VA’s current position. 

In a similar regard, three commenters 

objected to language in proposed 

§ 14.636(c)(1) that specifies the 

circumstances in which an AOJ’s 

decision adjudicating a supplemental 

claim will be considered the initial 

decision on a claim. Specifically, VA 

had proposed adding a sentence to 

§ 14.636(c) stating, ‘‘For purposes of this 


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paragraph (c)(1)(i), a decision by an AOJ 

adjudicating a supplemental claim will 

be considered the initial decision on a 

claim unless that decision was made 

while the claimant continuously 

pursued the claim by filing any of the 

following, either alone or in succession: 

A request for higher-level review, on or 

before one year after the date on which 

the AOJ issued a decision; a 

supplemental claim, on or before one 

year after the date on which the AOJ 

issued a decision; a Notice of 

Disagreement, on or before one year 

after the date on which the AOJ issued 

a decision; a supplemental claim, on or 

before one year after the date on which 

the Board issued a decision; or a 

supplemental claim, on or before one 

year after the date on which the Court 

of Appeals for Veterans Claims issued a 

decision.’’ The commenters advocated 

for an interpretation that would allow 

for agents and attorneys to receive fees 

for representation on all supplemental 

claims regardless of whether they are 

being continuously pursued by the 

claimant. One commenter expressed a 

belief that, based on information 

conveyed to the commenter by a 

director of a VSO, the non-inclusion of 

all supplemental claims within the case 

restriction in the proposed regulation is 

contrary to the negotiations between VA 

and its stakeholders. Ultimately, he 

characterizes the proposed language as 

‘‘a[n impermissible] denial of 

professional services to veterans.’’ 

It is VA’s position that the regulatory 

text is consistent with the language of 

the amended statute, and to explain 

VA’s interpretation of the statute it is 

helpful to consider the legislative 

history of the statutory restrictions on 

attorney’s fees. Since 1988, Congress has 

restricted fees on VA appeals by: (1) 

Prohibiting fees prior to a specific event 

in the appeal proceeding, and (2) 

permitting reasonable fees thereafter. 

VA views the language proposed in 

§ 14.636(c) as being consistent with that 

scheme. Originally, in 1988, under 

Public Law 100–687, the Veterans 

Judicial Review Act, the delimiting 

point was a decision by the Board, 

which was the decision that was 

appealable to the Veterans Court. Then, 

under Public Law 109–461, the Veterans 

Benefits, Health Care, and Information 

Technology Act of 2006, Congress 

shifted the delimiting point to the 

Notice of Disagreement, the threshold 

requirement to receiving a Board 

decision. Under Public Law 115–55, the 

delimiting point will shift again, from 

the Notice of Disagreement to the notice 

of the initial decision by an AOJ. 

As to how VA views Public Law 115– 

55 in relation to the prior scheme, VA 

interprets the amendment of section 

5904(c) by sec. 2(n) of Public Law 115– 

55 as merely a means to allow paid 

representation with respect to the 

claimant’s expanded options for seeking 

review of an initial decision on a claim. 

As noted above, prior to Public Law 

115–55, to obtain direct review of an 

AOJ decision, a claimant had to file a 

Notice of Disagreement. Thus, the filing 

a Notice of Disagreement was the logical 

entry point for ensuring that paid 

representation was available with 

respect to review of AOJ decisions. 

However, pursuant to Public Law 115– 

55, direct review of an AOJ decision 

may be obtained without filing a Notice 

of Disagreement. It may be obtained by 

choosing from three differentiated 

lanes—filing a Notice of Disagreement, 

filing a request for higher-level review, 

and filing a supplemental claim. As a 

result, to permit paid representation 

regardless of the form of review, 

Congress necessarily had to shift the 

entry point for paid representation to 

the AOJ decision itself. VA does not 

view the amendment as altering the 

general premise that ‘‘VA must have an 

opportunity to decide a matter before 

paid representation is available.’’ See 73 

FR 29852, 29868 (May 22, 2008) (the 

final rule shifting, pursuant to Public 

Law 109–461, the delimiting point for 

the restriction of fees). To the extent that 

there is any variation from this general 

rule when it comes to evidence 

submitted shortly after the AOJ’s 

decision, it is explained below. 

VA has set forth in § 14.636(c)(1)(i) 

the circumstances when an attorney or 

agent may charge a claimant for services 

in response to an adverse AOJ 

decision—after the initial decision on 

the claim. The proposed language 

referring to when ‘‘an agency of original 

jurisdiction adjudicating a supplemental 

claim will be considered the initial 

decision’’ was intended to distinguish 

an initial decision by an AOJ from 

review actions made by the same entity 

while the claimant continuously 

pursued the matter. VA carefully chose 

the ‘‘continuously pursued’’ language 

included in the proposed rule. Pursuant 

to Public Law 115–55, Congress shifted 

from a single-option appellate system to 

a multi-option appellate system 

involving the following three options: a 

supplemental claim, higher level review 

by the AOJ, and appeal to the Board. In 

addition to alternatives for pursuing 

appeals, the new system allows 

claimants to pursue appellate options in 

succession, each relating back to the 

same AOJ decision for effective date 

purposes. 

VA acknowledges that this approach 

treats supplemental claims differently 

based on whether they were filed within 

one year of a prior decision. If a 

supplemental claim is filed within one 

year of a prior decision, the 

supplemental claim relates back to the 

claim that gave rise to the earlier claim. 

As a result, the relevant time period 

with respect to the supplemental claim 

overlaps the time period considered in 

the earlier decision and is considered a 

continuation of that claim. A 

supplemental claim filed more than one 

year after a prior decision, on the other 

hand, is distinct from the prior decision 

because it does not overlap with the 

timeframe considered in the prior 

decision, and, thus, is the beginning of 

a new claim for the purposes of 

assigning an effective date and a new 

claim—or a new case—for the purpose 

of determining when attorney fees may 

be charged. The distinction between the 

submission of evidence on an AOJ 

decision for which the review has not 

expired and the submission of evidence 

after a AOJ decision has been finally 

adjudicated, is not a new concept. 

Pursuant to current 38 CFR 3.156(b), 

new and material evidence received 

after an AOJ decision but prior to the 

expiration date of the appeal period, or 

prior to the appellate decision if a 

timely appeal was filed, has long since 

been considered to have been filed in 

connection with the initial claims 

proceeding. In contrast, pursuant to 38 

CFR 3.156(a), a finally adjudicated 

claim could be reopened but the new 

proceeding would not be treated as a 

continuation of the prior claim. 

Furthermore, unlike supplemental 

claims that are filed more than one year 

after an AOJ decision or a Board 

decision, VA does not have a duty to 

notify the claimant who files a 

supplemental claim while continuously 

pursuing the matter of the information 

or evidence necessary to substantiate 

the claim in accordance with 38 U.S.C. 

5103. See Public Law 115–55, section 

2(b). The exclusion of this pro-claimant 

obligation also favors treating a 

continuously pursued supplemental 

claim as part of the matter stemming 

from the AOJ’s initial decision. In 

contrast, the fact that VA still does have 

this obligation with respect to 

supplemental claims filed when the 

claimant has not continuously pursued 

the matter only bolsters the conclusion 

that VA should again be permitted to 

decide the matter prior to the need for 

paid representation. 

VA has revised proposed § 14.636(c) 

to clarify VA’s position regarding 

supplemental claims, claims for 

increase in a rate of disability and 

requests for revision based on clear and 

unmistakable error, but has not made 


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any substantive changes to VA’s 

position. 

Finally, turning back to the 

commenter who asked VA about a 

claimant’s ‘‘continuing obligations’’ to a 

former attorney or agent, VA is 

amending § 14.636(e) and (f) based on 

this comment to help clarify a 

claimant’s continuing obligations with 

regard to fees. Simply because a 

claimant has discharged an attorney or 

agent, or the attorney or agent has 

withdrawn from representation does not 

eliminate the attorney or agent’s right to 

compensation. But the standard for 

evaluating a reasonable fee does change. 

In the typical case, in which an attorney 

or agent has a contingent fee agreement 

that does not exceed 20-percent and 

provides continuous representation 

from the date of the agreement through 

the date of the decision awarding 

benefits, the fee called for in the fee 

agreement is presumed to be reasonable 

in the absence of clear and convincing 

evidence to the contrary. 38 U.S.C. 

5904(a)(5); 38 CFR 14.636(f); see also 

Scates v. Principi, 282 F.3d 1362, 1365 

(Fed. Cir. 2002) (explaining that even if 

a fee agreement provides for a fee of 20 

percent of past-due benefits awarded, 

implicit in that arrangement is the 

understanding that the attorney or 

agent’s right to receive the full fee called 

for in the fee agreement only arises if 

the attorney or agent continues as the 

veteran’s representative until the case is 

successfully completed). In contrast, if 

the attorney or agent’s representation of 

the claimant ends before the date of the 

decision awarding benefits, the attorney 

or agent may still be eligible to receive 

a fee, but the full amount of the fee 

stated in the agreement generally does 

not represent a reasonable fee for that 

attorney or agent. Rather a reasonable 

fee for a discharged agent or attorney 

would be limited to the amount of the 

‘‘fee that fairly and accurately reflects 

[the attorney or agent’s] contribution to 

and responsibility for the benefits 

awarded.’’ Scates, 282 F.3d at 1366. 

Accordingly, VA is amending 

paragraph (f) of § 14.636 by revising the 

caption to ‘‘Presumptions and 

discharge,’’ amending the current 

language to specify that the 

presumption that a fee of 20 percent of 

any past-due benefits awarded is 

reasonable applies ‘‘if the agent or 

attorney provided representation that 

continued through the date of the 

decision awarding benefits,’’ and adding 

a new paragraph (f)(2). Paragraph (f)(2) 

will explain that a reasonable fee for an 

agent or attorney who is discharged by 

the claimant or withdraws from 

representation before the date of the 

decision awarding benefits is one that 

fairly and accurately reflects his or her 

contribution to and responsibility for 

the benefits awarded and that the 

amount of the fee is informed by an 

examination of the factors in § 14.636(e). 

VA has also amended paragraph (e) of 

§ 14.636, which lists factors considered 

in determining whether a fee is 

reasonable, to add as a factor, when 

applicable, ‘‘the reasons why an agent or 

attorney was discharged or withdrew 

from representation before the date of 

the decision awarding benefits.’’ See 

Scates, 282 F.3d at 1368. 

Beyond these regulatory changes, it is 

important to remember that VA’s Office 

of General Counsel does not initiate 

review of the reasonableness of fees in 

every case. However, this does not mean 

that a claimant who is unhappy with the 

representation provided by his or her 

agent or attorney, or former agent or 

attorney, is without protection and/or 

potential recourse. First, pursuant to 

VA’s standards of conduct in 38 CFR 

14.632, attorneys and agents are 

prohibited from charging, soliciting, or 

receiving fees that are clearly 

unreasonable, and, if an attorney or 

agent who is found to have violated this 

standard of conduct, the attorney or 

agent would risk losing his or her 

accreditation to represent claimants 

before VA. Second, if a claimant 

believes that the total amount of the fee 

charged, solicited or received by the 

attorney or agent was not earned, the 

claimant may initiate his or her own 

motion for VA’s Office of General 

Counsel to review of the fee. See 38 CFR 

14.636(i) (explaining how a claimant 

initiates a motion requesting a 

reasonableness review). 

Parts 19 and 20—Board of Veterans’ 

Appeals 

VA amends the regulations in 38 CFR 

parts 19 and 20 as described in the 

section-by-section supplementary 

information below. These regulations 

govern appeals and rules of practice for 

the Board of Veterans’ Appeals. 

A. Comments Concerning § 19.2— 

Appellant’s Election for Review of a 

Legacy Appeal in the Modernized 

System 

Proposed 38 CFR 19.2(d) discussed 

the manners in which appellants with 

claims or appeals pending in the legacy 

system may elect to have their claims or 

appeals adjudicated in the modernized 

review system. One commenter 

requested clarification regarding the 

effect of the phrase ‘‘pursuant to the 

Secretary’s authorization to participate 

in a test program’’ in 38 CFR 19.2(d)(3), 

given that 38 CFR 19.2(d)(1) also 

addresses election into a test program; 

specifically, the Rapid Appeals 

Modernization Program (RAMP). The 

commenter did not suggest any changes. 

Section 4(a) of the AMA of 2017 

authorizes VA to conduct test programs 

to evaluate the assumptions used to 

develop a plan for processing legacy 

appeals and supporting the new appeals 

system. Although RAMP is one such 

program, CFR 19.2(d)(3) acknowledges 

the more general authority to conduct 

test programs that was granted by 

Section 4(a) of the Appeals 

Modernization Act. That authority was 

used to conduct the Board’s Early 

Applicability of Appeals Modernization 

(BEAAM), a small-scale research 

program conducted to assess 

preliminary data about veterans’ choices 

and experiences in the modernized 

review system. VA makes no changes 

based on this comment. 

B. Comments Concerning § 19.30— 

Furnishing the Statement of the Case 

and Instructions for Filing a Substantive 

Appeal; and § 19.31—Supplemental 

Statement of the Case 

One commenter expressed concern 

regarding the notice provided to 

claimants in statements of the case. The 

commenter remarked that VA should 

provide adequate notice to enable a 

veteran to make a fully informed 

decision as to which review option is 

most appropriate. However, the 

commenter did not suggest a specific 

regulatory change. As an initial matter, 

VA notes that statements of the case and 

supplemental statements of the case are 

not contemplated under the Appeals 

Modernization Act framework, but will 

be provided in legacy claims. To that 

end, VA agrees that the notice provided 

with statements of the case and 

supplemental statements of the case 

must contain adequate information as to 

the claimant’s opportunity to opt into 

the new system pursuant to section 2, 

paragraph (x)(5) of the AMA. In order to 

clarify this procedure, VA has amended 

38 CFR 3.2400(c)(2) and 19.2(d)(2) to 

provide that elections to opt into the 

new system must be made on a form 

prescribed by the Secretary. 

C. Comments Concerning § 19.35— 

Certification of Appeals 

One commenter noted that while 

proposing to remove the requirement for 

VA Form 8 contained in § 19.35, VA 

indicated in the preamble that 

certification for legacy appeals will be 

accomplished ‘‘by other means.’’ This 

commenter asked for clarification of 

what these other means will entail. VA 

is not changing the process by which 

appeals are certified to the Board, VA is 

merely no longer requiring the 


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prescribed use of the VA Form 8. 

Veterans and representatives will still 

receive a letter indicating their appeal 

has been transferred to the Board and 

will still be able to determine the status 

of their appeal by checking their claims 

file. 

Another commenter expressed 

concern that the administrative delay of 

certification may impact the evidentiary 

timelines under the Appeals 

Modernization Act. Under the Appeals 

Modernization Act, an appeal is under 

the Board’s jurisdiction once a valid 

Notice of Disagreement is filed. 

Therefore, it is the filing of the Notice 

of Disagreement, not certification, that 

will determine the evidentiary timeline. 

Certification is not consistent with the 

design of the Appeals Modernization 

Act. VA makes no changes based on 

these comments. 

D. Comments Concerning § 20.3— 

Definitions 

A commenter expressed concern that 

the elimination of the phrase ‘‘argument 

and/or’’ from the definition contained in 

38 CFR 20.3(h) could be interpreted as 

a means to limit or eliminate arguments 

from accredited representatives at a 

Board hearing. VA directs the 

commenter to § 20.700(b), which states, 

‘‘The purpose of a hearing is to receive 

argument and testimony relevant and 

material to the appellate issue or 

issues.’’ VA assures the commenter that 

the change to § 20.3(h) does not, and 

was not intended to, limit arguments 

from representatives. Rather, the change 

was merely to eliminate redundant 

language that is already contained in 

§ 20.700(b). VA will continue to accept 

argument from accredited 

representatives at a Board hearing. VA 

makes no changes based on this 

comment. 

E. Comments Concerning Former 

§ 20.102—Delegations of Authority— 

Rules of Practice; § 20.108—Delegation 

of Authority to Chairman and Vice 

Chairman, Board of Veterans’ Appeals; 

and § 20.109—Delegation of Authority 

to Vice Chairman, Deputy Vice 

Chairmen, or Members of the Board 

Two commenters expressed concern 

that the proposed deletion of § 20.102 

means the delegation of authority rule of 

practice is being removed from the 

Board of Veterans’ Appeals. VA assures 

these commenters that the delegation of 

authority described remains in 

§§ 20.108 and 20.109. The proposed 

deletion of § 20.102 is merely to 

eliminate redundant language. 

Therefore, VA makes no changes based 

on this comment. 

F. Comments Concerning § 20.104— 

Jurisdiction of the Board 

A commenter expressed concern that 

VA proposed deleting the following 

language from § 20.104, ‘‘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.’’ This commenter felt the 

removal of this language suggested the 

Board would no longer be bound by 

precedential opinions of the General 

Counsel. VA assures the commenter that 

the change to § 20.104 does not, and was 

not intended to, suggest the Board is not 

bound by precedential opinions of the 

General Counsel. Rather, this change 

was merely to eliminate redundant 

language that is already contained in 

§ 20.105. VA makes no changes based 

on this comment. 

G. Comments Concerning § 20.105— 

Criteria Governing Disposition of 

Appeals 

A commenter suggested VA take this 

rulemaking to modify 38 CFR 20.105 to 

clarify the precedential or persuasive 

value of manual provisions. As 

explained in § 20.105, ‘‘The Board is not 

bound by Department manuals, 

circulars, or similar administrative 

issues.’’ VA makes no changes based on 

this comment. 

H. Comments Concerning § 20.202— 

Notice of Disagreement 

VA received serveral comments 

concerning § 20.202, and will therefore 

address these comments by topic, as 

follows. 

1. Comments Concerning § 20.202(a)— 

‘‘Specific Determination’’ 

Commenters remarked that the term 

‘‘specific determination’’ as used in 

§ 20.202(a) should be defined. An 

additional commenter also asked if a 

veteran could indicate they were 

appealing ‘‘all issues.’’ The language 

‘‘specific determination’’ was included 

in the statute. However, VA agrees that 

it would be useful to further define this 

term in the regulation. VA therefore 

amends § 20.202(a) to require 

identification of the decision and the 

specific issue or issues therein with 

which the claimant disagrees. The 

amended language references the 

definition of issue in 38 CFR 3.151(c). 

This change will better inform claimants 

of the scope of the identification 

requirement and aligns it with other 

AMA implementation definitions. 

The Notice of Disagreement needs to 

contain sufficient information for VA to 

determine the issue and adjudication 

with which the veteran disagrees. The 

design of the new Notice of 

Disagreement form prompts the veteran 

to provide the issue and the date of 

decision with which the veteran is 

disagreeing. Additionally, § 20.202 

notes that ‘‘[t]he Board will construe 

such arguments in a liberal manner for 

purposes of determining whether they 

raise issues on appeal.’’ This language 

protects the rights of a veteran who, for 

example, incorrectly identifies the date 

of the agency of original jurisdiction 

decision, but does provide enough 

information that VA is able to identify 

the issue and decision on appeal. 

Determination of whether an adequate 

Notice of Disagreement was filed falls 

within the Board’s jurisdiction. 38 

U.S.C. 7105(b)(1)(C). As the proposed 

rule makes clear, the Board will 

construe Notices of Disagreement in a 

liberal manner for purposes of 

determining whether they raise issues 

on appeal. Finally, if the Board receives 

an unclear Notice of Disagreement on 

the form prescribed by the Secretary and 

the Board cannot identify which denied 

issue or issues the claimant wants to 

appeal, or which option the claimant 

intends to select, the Board will seek 

clarification of the Notice of 

Disagreement before dismissing the 

appeal. Therefore, VA makes no changes 

based on this comment. 

2. Comments Concerning 

§ 20.202(b)(3)—Submission of Evidence 

in Conjunction With Notice of 

Disagreement 

Two commenters noted that 38 CFR 

20.202 provides time limits on the 

veteran’s opportunity to submit 

additional evidence or modify the 

Notice of Disagreement to elect a 

different evidentiary lane, starting from 

the date that the Board receives the 

Notice of Disagreement. The 

commenters expressed concern that VA 

does not provide adequate notice as to 

when it received the Notice of 

Disagreement and therefore the veteran 

will not be able to calculate the relevant 

deadlines. VA has carefully considered 

this comment and has determined that 

no changes to the regulatory 

amendments are required. It is currently 

the Board’s practice to notify veterans 

and representatives when an appeal has 

been received and docketed at the 

Board. As the precise procedures for 

providing such notice may change based 

on technological systems, as well as 

other resources, VA will continue to 

address this matter through internal 

procedural guidance consistent with the 

law and regulations. VA makes no 

changes based on this comment. 


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3. Comments Concerning § 20.202(c)— 

Policies on Modifying the Notice of 

Disagreement and Changing Dockets 

Several commenters expressed 

concern with the policies on modifying 

the Notice of Disagreement and 

switching dockets in §§ 20.202(c) and 

20.800(a)(2). Under § 20.202(c), a 

veteran may request a different 

evidentiary docket than the one selected 

on the Notice of Disagreement, as long 

as the request is made within one year 

of the notice of the agency of original 

jurisdiction decision, or within 30 days 

of receipt of the Notice of Disagreement, 

whichever is later. This policy accounts 

for the common situation in which a 

veteran files the Notice of Disagreement 

at the end of the one-year period, and 

does not retain representation until after 

the Notice of Disagreement is filed. The 

policy reflected in the proposed rule 

provided an additional 30 days after the 

filing of the Notice of Disagreement so 

that the representative has an 

opportunity to recommend that the 

veteran modify the initial choice of an 

evidentiary record. However, if a 

veteran has already submitted evidence 

or testified at a Board hearing, the 

request will be denied. If a veteran 

requests to switch into the docket 

allowing submission of additional 

evidence, he or she will have 90 days 

to submit additional evidence. The 90- 

day window will begin on the day that 

VA issues a letter notifying the veteran 

that the request to switch dockets has 

been granted. Veterans who request to 

switch dockets will retain their original 

docket date, based upon VA’s receipt of 

the Notice of Disagreement. Therefore, 

there is no ‘‘penalty’’ for switching 

dockets. 

Two commenters asserted that the 

one-year period referenced in 

§ 20.202(c) is not authorized by statute 

and recommended a more liberal policy. 

VA does not agree with the statement 

that the policy developed by VA is not 

authorized by the statute. The 

amendments to 38 U.S.C. 7107(e) 

authorize the Secretary to ‘‘develop and 

implement a policy allowing an 

appellant to move the appellant’s case 

from one docket to another docket.’’ The 

statute places no restrictions on the 

agency’s discretion to impose a time 

limitation in such policy. Congress 

acknowledged this fact in H. Rept. 115– 

135, noting that, ‘‘H.R. 2288 does not 

mandate that VA allow veterans to 

switch from one option to another. It is 

expected that the Secretary will use 

their discretion to develop policies that 

are in the best interest of veterans.’’ 

Turning to a commenter’s suggestion 

that veterans should have unlimited 

time in which to switch dockets, VA 

does not view this policy as consistent 

with the design of the new system. 

Allowing the veteran unlimited time to 

modify their Notice of Disagreement 

would create an unfair result for other 

veterans. VA has established a 365-day 

average processing time goal for appeals 

in the direct review docket. VA may not 

be able to meet this commitment if some 

veterans are able to enter the direct 

docket ahead of other veterans who 

have been waiting on that docket. VA is 

also committed to transparency, 

including providing veterans with 

accurate data about average processing 

time on all three dockets. In the new 

system, veterans have many choices to 

tailor their experience to best suit their 

individual needs, and this data will 

inform their choices. Allowing some 

veterans to switch dockets at any time 

in the process will make it difficult for 

VA to provide accurate data to all 

veterans, effectively taking away their 

ability to choose the best path. 

Moreover, the primary goal of the 

Appeals Modernization Act is to create 

a better, more efficient claims and 

appeals system that works for veterans. 

In the current legacy system, appellants 

may add evidence, request a hearing, or 

withdraw a hearing request at any time. 

Allowing appellants to switch lanes at 

any time would mimic this feature of 

the legacy system and preclude the 

efficiencies built into the new system, 

and would thus be contrary to Congress’ 

intent. 

To that end, the Congressional Budget 

Office (CBO) determined that section 2 

of the AMA, directing VA to implement 

the new process to handle appeals of 

claims for veterans’ benefits, would be 

cost neutral. CBO noted that, ‘‘the 

current system allows for repeated 

revisions and resubmissions of claims 

. . .’’ resulting in wait times of three to 

six years and a backlog of approximately 

470,000 claims. CBO further noted that 

the ‘‘proposed changes are intended to 

significantly streamline the appeal 

process, which would allow appeals to 

be finalized in a shorter period of time 

and require the efforts of fewer 

employees . . . [E]fficiencies of the new 

system would allow the agency to 

continue processing legacy appeals 

under the current system, very gradually 

reducing the existing backlog, without 

the need for additional employees.’’ 

Several commenters have suggested 

that the policy deprives veterans of 

some of the options available in the new 

appeals system, because they may not 

understand the ramifications of their 

initial review lane choice. In particular, 

one commenter suggested that a veteran 

who has been waiting for a long time in 

the hearing docket should be able to 

move to the direct docket. Another 

commenter expressed concern with the 

policy disallowing a change in dockets 

if the veteran had already submitted 

evidence with the Notice of 

Disagreement. The commenter 

suggested that VA should consider 

allowing veterans who had already 

submitted evidence to subsequently 

request a hearing. The commenter 

expressed that this change would not 

provide an unfair advantage to the 

veteran, but would allow a veteran 

whose circumstances had changed to 

request a hearing before the Board. 

The Appeals Modernization Act 

provides several new choices for 

veterans seeking review of a VA 

decision. VA encourages veterans to 

seek the advice of their authorized 

representative, if any, as soon as 

possible when determining which 

option best suits their individual 

circumstances and to consider 

published average wait times associated 

with each option. VA understands that 

circumstances may change to the extent 

that a different option is preferable to 

the one initially chosen. As noted 

above, however, VA has carefully 

balanced the needs of a veteran wishing 

to switch dockets against the needs of 

all the other veterans waiting for the 

Board to decide their appeals. The 

proposed policy provides an 

opportunity for a veteran to switch 

dockets without creating an unfair 

disadvantage to other veterans who 

wish to continue with their initial 

choice, but might experience longer 

wait times as a result of others 

switching dockets. 

Nevertheless, VA recognizes that 

exceptional circumstances may 

sometimes warrant extensions of the 

time period to switch dockets on an 

individual basis. Accordingly, VA 

amends § 20.203 to add paragraph (c), 

which provides that the time limit for 

filing a Notice of Disagreement or a 

request to modify a Notice of 

Disagreement may be extended if the 

Board grants the appellant’s motion for 

good cause. Examples of good cause 

may include serious illness or injury of 

the appellant or representative, or the 

appellant’s inability to access mail 

services due to homelessness, overseas 

deployment, or other reasons. Examples 

that would not constitute good cause 

include change in representation, 

change in preference of a review option 

at the agency of original jurisdiction or 

among the Board review options, 

difficulty in obtaining evidence, or 

discovery of new evidence during a 

period in which the duty to assist does 

not apply. 


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In addition to the above, another 

commenter stated that knowing wait 

time predictions (which is linked with 

timeliness goals) is important at the 

time the initial rating decisions are 

made under the new system so that 

claimants can make an informed 

decision about which Board docket to 

choose in a Notice of Disagreement. VA 

will be publishing wait times pursuant 

to the law, but this is not a reason for 

any regulation change. 

VA does make a change to § 20.202(c) 

in response to comments on a related 

Federal Register notice. Because the 

Notice of Disagreement form is not a 

new information collection, but a 

revised information collection under 

OMB control number 2900–0674, it was 

not published with the proposed 

rulemaking. Rather, notice of the 

proposed changes to 2900–0674 was 

published in the Federal Register on 

August 23, 2018, pursuant to the 

Paperwork Reduction Act. 83 FR 42769. 

One commenter suggested changes to 

the Notice of Disagreement for the 

purpose of clarifying the procedures for 

modifying the Notice of Disagreement. 

The commenter recommended that VA 

use a standard form for Notice of 

Disagreement modifications. VA agrees 

with the commenter, and in order to 

address the commenter’s concerns, VA 

has amended the procedures described 

in § 20.202(c) to state that requests to 

modify a Notice of Disagreement for the 

purpose of selecting a different review 

option must be made by filing a new 

Notice of Disagreement form. 

Several commenters remarked that the 

policy does not provide enough time to 

change the initial election in the event 

that the veteran does not retain 

representation until after the Notice of 

Disagreement is filed. This concern was 

originally addressed in the policy by 

providing an additional 30 days 

following receipt of the Notice of 

Disagreement. Moreover, the Appeals 

Modernization Act has shifted 

important decision points for veterans 

seeking review of a VA decision to 

earlier in the process. Under the new 

system, the expert advice of 

representatives will, in many cases, be 

beneficial to veterans as soon as 

possible following VA’s initial decision 

on their claim. Veterans may wish to 

rely on a representative to assist them in 

choosing the review option that best 

suits their needs. However, VA 

acknowledges that some veterans will 

not retain representation until after they 

file a request for review. In light of the 

commenter’s concerns, VA has amended 

the policy in § 20.202(c)(2) to provide an 

additional 60 days following receipt of 

the Notice of Disagreement, instead of 

30. VA hopes that this additional time 

will assist veterans’ representatives in 

better serving their clients. 

4. Comments Concerning § 20.202(d) 

and (e)—Use of Non-Standard Form 

Under proposed § 20.202(d), the 

Board will not accept a Notice of 

Disagreement ‘‘submitted in any format 

other than the form prescribed by the 

Secretary, including on a different VA 

form.’’ Section 20.202(e) provides that 

the filing of an alternate form or other 

communication will not extend, toll, or 

otherwise delay the time limit for filing 

a Notice of Disagreement, as provided in 

§ 20.203(b). Several commenters 

requested that the Board provide notice 

if it rejects a communication under the 

circumstances described in § 20.202(d) 

and (e). As an initial matter, the statute 

requires that Notices of Disagreement 

are filed on a standard form. VA 

implemented standardized forms 

procedures in 2014. See Standard 

Claims and Appeals Forms, 79 FR 57660 

(Sept. 25, 2014). This 2014 rule 

amended VA’s adjudication and appeal 

regulations to require that all claims and 

appeals originate on standard VA forms. 

Therefore, claimants should be aware 

that VA will not accept Notices of 

Disagreement submitted in any format 

other than the form prescribed by the 

Secretary. VA is developing procedures 

for notifying claimants when a 

communication cannot be accepted as a 

Notice of Disagreement. As the precise 

procedures for providing such notice 

may change based on technological 

systems, as well as other resources, VA 

will continue to address this matter 

through internal procedural guidance 

consistent with the law and regulations. 

Moreover, VA has a longstanding 

practice of providing the status of an 

appeal or communication upon request. 

VA makes no changes based on this 

comment. 

5. Comments Concerning § 20.202(f) and 

(g)—Clarification of Notice of 

Disagreement 

One commenter remarked that a 

Notice of Disagreement could be 

rejected by the Board after the Board 

requested clarification because the 

clarification was received one year after 

the agency of original jurisdiction 

decision. This concern is addressed in 

§§ 20.202(f) and 20.202(g). If within one 

year after mailing an adverse decision 

(or 60 days for simultaneously contested 

claims), the Board receives an unclear 

Notice of Disagreement completed on 

the form prescribed by the Secretary, 

then the Board will contact the claimant 

to request clarification of the claimant’s 

intent. The claimant must respond to 

the Board’s request for clarification on 

or before the later of 60 days after the 

date of the Board’s clarification request 

or one year after the date of mailing of 

notice of the adverse decision being 

appealed (60 days for simultaneously 

contested claims). VA will follow the 

provisions of §§ 20.202(f) and 20.202(g), 

as well as the statute, 38 U.S.C. 

7105(b)(1)(C), which provides that 

questions as to timeliness or adequacy 

of the Notice of Disagreement shall be 

decided by the Board. 

An additional commenter requested 

that VA provide a period longer than 60 

days for clarification of a Notice of 

Disagreement and provide good cause 

exception to the rule. The proposed rule 

providing 60 days for clarification is 

based on the current regulation § 19.26, 

which provides 60 days for clarification 

of an unclear Notice of Disagreement 

received under the current system. We 

are not aware of hardship resulting from 

the current rule. Therefore, VA makes 

no changes based on these comments. 

The same commenter wanted to know 

how the Board will contact veterans to 

request clarification. VA will contact 

veterans via oral, written, or other 

means. The commenter did not put forth 

a specific recommendation; therefore, 

VA makes no changes based on this 

comment. 

I. Comments Concerning § 20.203— 

Place and Time Filing Notice of 

Disagreement 

One commenter suggested that, when 

a veteran selects either the 

Supplemental Claim or Higher-Level 

Review options, the one-year time limit 

to file a Notice of Disagreement must be 

tolled. The commenter is mistaken as to 

this aspect of the new system 

framework. Pursuant to the AMA, a 

veteran may choose to file a Notice of 

Disagreement within the one-year 

period following an initial agency of 

original jurisdiction decision on a claim, 

a decision on a Supplemental Claim, or 

a decision on a Higher-Level Review. 

Such filing will protect the effective 

date for any granted benefit. VA makes 

no changes based on this comment. 

Commenters remarked that 

§ 20.203(b) uses the term 

‘‘determination’’ as it relates to the 

requirement of filing a Notice of 

Disagreement whereas the term 

‘‘decision’’ is used in section §§ 3.103, 

3.104, and 3.2500. VA proposed the 

term ‘‘determination’’ in § 20.203(b) as 

this is the term used in the Appeals 

Modernization Act to describe the 

determination with which the claimant 

disagrees. However, VA agrees with the 

commenters’ concerns that use of 

‘‘determination’’ will lead to confusion, 


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and therefore amends § 20.203(b) to 

instead use the term ‘‘decision’’. This 

change does not alter the requirement in 

§ 20.202(a) to identify to specific 

decision and issue or issues therein 

with which the claimant disagrees. 

A commenter questioned whether 

Notices of Disagreement or other 

communications can be digitally 

submitted to the Board through Direct 

Mail Upload or electronically submitted 

through a VA Regional Office and still 

be considered as received by the Board. 

The commenter expressed concern that 

these provisions encourage the use of 

the paper mail versus the use of 

electronic/digital submissions. 

Additionally, the commenter suggested 

that the Board’s mailing address should 

be reflected on standard forms but not 

the regulations. 

Pursuant to 38 U.S.C. 7105(b)(2)(C), 

notices of disagreement shall be filed 

with the Board. Therefore, notices of 

disagreement may not be filed with a 

VA Regional Office. As to the 

commenter’s suggestion that the Board’s 

mailing address should not be contained 

in regulation, the Board is statutorily 

required to receive notices of 

disagreement and motions directly from 

parties. It has been VA’s longstanding 

policy to inform the public and settle in 

law the mailing address to which those 

submissions must be sent. VA makes no 

changes based on this comment. 

A commenter expressed concern 

regarding VA’s procedures for mailing 

notice to representatives, and in 

particular the provisions of proposed 38 

CFR 20.203(b), regarding timeliness of a 

Notice of Disagreement. The commenter 

asserted that the 90-day evidence 

window for cases described in § 20.302 

should begin on the date that the 

appellant is notified of VA’s receipt of 

the Notice of Disagreement, rather than 

on the date of VA’s receipt of the Notice 

of Disagreement. Pursuant to 38 U.S.C. 

7113(c)(2), however, the evidentiary 

record for such cases shall include 

evidence submitted ‘‘within 90 days 

following receipt of the Notice of 

Disagreement.’’ Accordingly, VA will 

follow the statute and will make no 

changes based on this comment. 

The same commenter disagreed with 

the agency’s presumption, pursuant to 

§ 20.203(b), that notice of a VA decision 

was mailed on the date of the letter. The 

commenter contended that VA 

correspondence to representatives is 

often postmarked after the date of the 

letter. The commenter submitted several 

letters and postmarked envelopes from 

VA to individual veterans in support of 

this argument. Pursuant to 38 U.S.C. 

7105(b)(1)(C), questions as to timeliness 

or adequacy of the Notice of 

Disagreement shall be decided by the 

Board, which is consistent with the fact 

that the presumption of regularity is 

rebuttable. We further note that the 

possibility that the presumption might 

be rebutted in a non-trivial number of 

cases does not establish that it is 

inappropriate in a system the size of 

VA’s claims system, which receives and 

sends millions and millions of pieces of 

mail each year. Finally, operational 

issues of the type mentioned by the 

commenter are more appropriately 

addressed at the sub-regulatory policy 

level. 

Commenters raised concerns that VA 

would not extend the filing deadline for 

requests for review of a decision. 

Accordingly, VA amends § 20.203 to 

add paragraph (c), which provides that 

the time limit for filing a Notice of 

Disagreement or a request to modify a 

Notice of Disagreement may be 

extended if the Board grants the 

appellant’s motion for good cause. 

Examples of good cause may include 

serious illness or injury of the appellant 

or representative, or the appellant’s 

inability to access mail services due to 

homelessness, overseas deployment, or 

other reasons. Examples that would not 

constitute good cause include change in 

representation, change in preference of 

a review option at the agency of original 

jurisdiction or among the Board review 

options, difficulty in obtaining 

evidence, or discovery of new evidence 

during a period in which the duty to 

assist does not apply. 

Additionally, VA corrects a technical 

error in the title of § 20.203, amending 

‘‘Place and time filing Notice of 

Disagreement’’ to read Place and time of 

filing Notice of Disagreement’’. 

J. Comments Concerning § 20.205— 

Withdrawal of Appeal 

One commenter remarked that VA 

should include clarifying language 

regarding withdrawal of appeals to 

ensure that VA only withdraws claims 

when that is the veteran’s intention. 

Initially, VA notes that this is outside 

the scope of the Appeals Modernization 

Act. However, VA is still bound by the 

caselaw governing adequate 

withdrawals of claims and appeals. 

Nothing in the Appeals Modernization 

Act limits this governing caselaw. VA 

makes no changes based on this 

comment. 

One commenter remarked that 

§ 20.205(c) is outside the scope of the 

Appeals Modernization Act. Section 

20.205(c) provides that the withdrawal 

of an appeal does not preclude the filing 

of a new Notice of Disagreement, a 

request for higher-level review, or a 

supplemental claim as to any issue 

withdrawn provided such filing would 

be timely if the withdrawn appeal had 

never been filed. The commenter states 

that there is no justification for VA to 

require the refiling to be done within 

the initial one year period once a timely 

Notice of Disagreement has been 

submitted. The Appeals Modernization 

Act also provides the Secretary the 

authority to develop and implement a 

policy for claimants who wish to 

withdraw their Notice of Disagreement. 

The Appeals Modernization Act clearly 

provides the claimant one year to seek 

review of the agency of original 

jurisdiction determination. Therefore, 

this time period is incorporated into 

§ 20.205(c). Accordingly, § 20.205(c) is 

not outside the scope of the Appeals 

Modernization Act, and VA makes no 

changes based on this comment. 

Commenters suggest that VA should 

allow a claimant to withdraw an appeal 

at the Board in order to file a 

supplemental claim with VBA prior to 

receiving a Board decision. The Appeals 

Modernization Act specifically states 

that for ‘‘purposes of determining the 

effective date of an award . . . the date 

of application shall be considered the 

date of the filing of the initial 

application for a benefit if the claim is 

continuously pursued by filing . . . A 

supplemental claim . . . on or before 

the date that is one year after the date 

on which the Board of Veterans’ 

Appeals issues a decision’’ 38 U.S.C. 

5110(a)(2)(D) (emphasis added). 

Accordingly, the preservation of the 

effective date provisions of the Appeals 

Modernization Act generally would not 

apply to a claimant who withdraws an 

appeal at the Board and files a 

supplemental claim with VBA prior to 

receiving a Board decision if more than 

one year has passed since the agency of 

original jurisdiction determination. 

However, the agency of original 

jurisdiction may consider a request for 

extension of the one-year period in 

which to file a supplemental claim in 

these circumstances while maintaining 

continuous pursuit of the claim (see, 

e.g., § 3.2500(e)(2)). Accordingly, VA 

makes no changes to this section based 

on these comments. 

K. Comments Concerning Part 20, 

Subpart D—Evidentiary Record 

One commenter requested 

clarification regarding how VA will 

adjudicate increased rating claims. The 

evidentiary record before the Board is 

defined by the Appeals Modernization 

Act. The Appeals Modernization Act 

did not change the substantive case law 

governing increased rating claims. 

Accordingly, VA makes no change to 

the regulations based on this comment. 


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One commenter suggested that 

evidence submitted to (or constructively 

received by) the agency of original 

jurisdiction after a supplemental claim 

is adjudicated should be later 

reviewable by the Board when an Notice 

of Disagreement is filed, even if the 

veteran selects the Board lane 

precluding submission of new evidence. 

This is contrary to the statutory design 

of the system. Statutory section 7113 

provides that the record before the 

Board consists of the record before the 

agency of original jurisdiction at the 

time that the supplemental claim was 

adjudicated. This rule is clearly 

mirrored in § 20.301. 

If a veteran wants to have VA 

consider evidence not received by VA 

when the record before the agency of 

original jurisdiction was open, the 

available options are to (a) file another 

supplemental claim with new and 

relevant evidence or (b) file a Notice of 

Disagreement, select a Board lane 

allowing submission of new evidence, 

and submit the evidence during the 

applicable 90-day window as provided 

in §§ 20.302 and 20.303. Therefore, VA 

makes no changes based on these 

comments. 

The regulations as proposed require 

the Board to notify a veteran in a Board 

decision if the Board did not consider 

evidence that had been submitted 

outside the allowed time period. One 

commenter asserted that the regulations 

should require the Board to additionally 

notify the veteran at the time such 

evidence is received by the Board. The 

commenter asserted that waiting to 

provide such notice until issuance of 

the Board decision creates needless 

confusion and delay. As we discuss 

above in the context of VBA decisions, 

VA does not have resources available to 

quickly identify evidence submissions 

as untimely and provide notice to the 

veteran. VA must prioritize processes 

which increase efficiency and reduce 

average processing times, so that the 

new system as a whole will be 

successful. As the Federal Circuit has 

stated, ‘‘VA possesses a duty not only to 

individual claimants, but to the effective 

functioning of the veterans 

compensation system as a whole. 

Moreover, because the VA possesses 

limited resources, these dual obligations 

may sometimes compel it to make 

necessary tradeoffs.’’ Veterans Justice 

Grp, LLC v. Sec’y of Veterans Affairs, 

818 F.3d 1336, 1351, 1352, 1354 (Fed. 

Cir. 2016). However, VA will take the 

comment under consideration, and will 

explore the possibility of developing 

additional procedures for identification 

of untimely evidence in the future to the 

extent technological and other resources 

lessen the associated administrative 

burden. VA further notes that there are 

already procedures in place to inform 

veterans of the applicable evidence 

submission periods and the 

consequences of untimely evidence 

submission. When veterans receive 

notice of their initial decisions, they are 

informed of their available review 

options and the periods during which 

they may submit evidence based on the 

options they select. Furthermore, as the 

commenter acknowledged, if evidence 

is received untimely from a veteran, he 

or she is informed of that fact when a 

Board decision is issued, pursuant to 

proposed 38 CFR 20.801(b)(3). A veteran 

may resubmit the evidence with a 

supplemental claim within one year of 

the Board’s decision and preserve the 

effective date associated with his or her 

appeal to the Board. VA makes no 

changes based on this comment. 

Under 38 CFR 20.302(a), when a 

Board hearing is requested in the Notice 

of Disagreement, the Board’s decision 

will include consideration of testimony 

and evidence submitted by the 

appellant or his or her representative at 

the hearing and within 90 days 

following the hearing. Under 38 CFR 

20.303(b), when a Board hearing is not 

requested, but the veteran elects to 

submit additional evidence, the Board’s 

decision will include consideration of 

evidence submitted with the Notice of 

Disagreement and within 90 days 

following receipt of the Notice of 

Disagreement. Several commenters 

expressed concern or confusion 

regarding these proposed evidence 

submission periods. 

Specifically, one commenter 

expressed concern that veterans who 

submit evidence prior to a hearing will 

not be notified that such evidence may 

not be considered by the Board unless 

it is resubmitted during the 90-day 

period following the hearing. The 

commenter suggested that the Board 

advise the appellant on the types of 

actions available and that the evidence 

needs to be presented at the hearing to 

be considered by the Board. 

Additionally, the commenter expressed 

appreciation for the discretionary 

provisions contained in § 20.302(b) and 

(c), which allows for a 90-day evidence 

submission period even when a hearing 

request is withdrawn or the appellant 

does not appear for a scheduled hearing. 

When veterans receive notice of their 

initial decisions, they are informed of 

their available review options and the 

periods during which they may submit 

evidence based on the options they 

select. Pursuant to § 20.705(b), a 

Veterans Law Judge presiding over a 

hearing may find it appropriate to 

discuss applicable evidence submission 

rules and how those rules apply to an 

individual veteran’s circumstances. 

Furthermore, if evidence is received 

untimely from a veteran, he or she will 

be informed of that fact (and the options 

available to have that evidence 

reviewed) when a Board decision is 

issued, pursuant to section 7104(d)(2) as 

implemented in proposed 38 CFR 

20.801(b)(3). In light of the statutory 

direction to provide notice in the Board 

decision and the procedures already in 

place in the proposed regulations to 

inform veterans of the applicable 

evidence submission periods and 

consequences of untimely evidence 

submission, VA makes no changes 

based on this comment. 

One commenter asserted generally 

that limiting veterans’ ability to submit 

evidence to certain time periods 

represented a shortcoming in the new 

system. Another commenter stated that 

the 90-day evidence submission 

window was concerning regarding FOIA 

requests, specifically, since FOIA 

procedures take time to complete. 

Finally, another commenter suggested 

that representatives do not have an 

opportunity to review the claims file, 

compile relevant evidence, and submit 

argument in support of the veteran’s 

appeal prior to issuance of a Board 

direct review decision, and that a 

reasonable time period for submission 

of a written statement addressing 

relevant evidence and argument must be 

written into the regulations. Although 

the modernized review system confines 

evidence submission to certain periods, 

the statute and proposed regulations do 

not—apart from creating a faster review 

process—restrict a representative’s 

ability to submit argument. The design 

of the system favors advocacy early in 

the appeals process because this is the 

most efficient way to reach a 

comprehensive and speedy decision. 

VA is confident that veterans’ advocates 

will be able to meet this expectation. VA 

made no changes based on these 

comments. 

Another commenter, in addressing 

proposed 38 CFR 20.302 and 20.303, 

expressed concern that those regulations 

created a timeframe, between the agency 

of original jurisdiction’s initial decision 

and the Board hearing, or the agency of 

original jurisdiction’s initial decision 

and submission of a Notice of 

Disagreement, during which a veteran 

could introduce evidence into the 

record that would not be considered by 

the Board. The commenter 

recommended that VA include 

provisions allowing for submission of 

evidence during those periods, in part 

because the commenter interpreted the 


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provisions for evidence submission in 

38 CFR 20.302 and 20.303 as 

inconsistent with each other. 

The proposed time periods for 

evidence submission included in 38 

CFR 20.302 and 20.303 are not 

inconsistent with each other. Rather, 

they represent two separate review 

options defined by the statute. For each 

option, the statute clearly specifies what 

evidence is included in the record 

before the Board based on when the 

evidence is submitted. Because the 

proposed regulations track the plain 

language of the statute, no changes will 

be made in response to the comment. 

VA notes that, should a veteran submit 

evidence untimely, he or she generally 

may resubmit the evidence with a 

supplemental claim within one year of 

the Board’s decision and preserve the 

effective date associated with the appeal 

to the Board. VA makes no changes 

based on these comments. 

Finally, two commenters’ discussions 

reflected general confusion regarding 

the timeline for submitting additional 

evidence under 38 CFR 20.303(b), where 

the veteran elects in the Notice of 

Disagreement to submit additional 

evidence without a Board hearing. One 

commenter asked if a veteran had a total 

of 150 days to submit additional 

evidence following the initial 

decision—60 days after the initial 

decision and 90 days after submission of 

the Notice of Disagreement. Another 

commenter remarked that claimants 

only have 60 days to appeal to the 

Board, which is not enough time to 

compile relevant evidence. VA initially 

notes that the commenters are mistaken 

that veterans only have 60 days to 

appeal to the Board—this deadline only 

applies to simultaneously contested 

claims. In other cases, the veteran has 

one year from the date of notice of a VA 

decision to appeal to the Board. 

However, if the evidence submission 

option is chosen (but no hearing), the 

veteran may submit evidence with the 

Notice of Disagreement and then has a 

total of 90 days, starting on the day the 

Notice of Disagreement is received, to 

submit additional evidence for 

consideration by the Board. Evidence 

submitted before or after this 90-day 

window will not be considered by the 

Board. The commenters did not suggest 

specific amendments; therefore, VA 

makes no changes based on these 

comments. 

L. Comments Concerning § 20.600— 

Applicability 

One commenter stated that the 

regulations concerning hearings on 

appeal did not clearly identify which 

rules pertain to legacy appeals and 

referenced the applicability provision at 

§ 20.600(b). The commenter suggested 

generally that, to avoid confusion, VA 

provide more clarity in this area. The 

commenter did not make a specific 

suggestion for change. VA has attempted 

in the regulation to be as clear as 

possible regarding which regulations 

apply to legacy claims and which apply 

to claims in the modernized review 

system. For this reason, and because the 

commenter did not make a specific 

suggestion for change, VA made no 

changes based on the comment. 

M. Comments Concerning § 20.602— 

When a Hearing Before the Board of 

Veterans’ Appeals May Be Requested in 

a Legacy Appeal; Procedure for 

Requesting a Change in Method of 

Hearing; and § 20.703—When a Hearing 

Before the Board of Veterans’ Appeals 

May Be Requested; Procedure for 

Requesting a Change in Method of 

Hearing 

Proposed 38 CFR 20.602 and 20.703 

describe how the Board will determine 

the method of a requested hearing in the 

legacy and modernized review systems, 

respectively. One commenter asserted 

that the Board should continue to allow 

veterans to select from among available 

hearing options, rather than the Board 

making the initial selection based on the 

earliest practical date and allowing the 

veteran one request for a change in 

hearing method. Amendments to 

hearing regulations for legacy and new 

system appeals are necessary in light of 

the Jeff Miller and Richard Blumenthal 

Veterans Health Care and Benefits 

Improvement Act of 2016, Public Law 

114–315. Section 102 of Public Law 

114–315, by amending 38 U.S.C. 7107, 

directs the Board, upon request for a 

hearing, to determine what type of 

hearing it will provide an appellant, 

while affording the appellant the 

opportunity to request an alternative 

type of hearing once the Board makes its 

initial determination. Proposed 38 CFR 

20.602 and 20.703 are necessary to 

comply with Public Law 114–315; 

therefore, VA makes no changes to the 

regulations based on this comment. 

Another commenter asserted that the 

hearing method determinations 

proposed in 38 CFR 20.602 and 20.703 

would only be effective if the veteran 

could choose his or her preferred 

method. The commenter requested an 

explanation as to how the Board 

planned to determine the method of 

hearing after such a preference was 

expressed. In accordance with revised 

section 7107 and the regulations as 

proposed, if a veteran requests a 

different hearing method than the one 

initially assigned by VA, the veteran’s 

request will be honored. However, VA 

will only honor one such request. As the 

commenter did not suggest an 

amendment, VA makes no changes 

based on this comment. 

N. Comments Concerning 20.700— 

General 

One commenter suggested VA retain 

the option for veterans to submit 

electronic records of oral argument to 

the Board of Veterans’ Appeals in lieu 

of participating in a formal hearing. The 

commenter stated that submitting oral 

argument would be easier for some 

veterans, including those who live in a 

rural area, since it may be difficult for 

those veterans to travel to the nearest 

VA facility for a formal hearing. VA 

proposed removing the provisions to 

allow for submission of oral recording 

in light of the benefits of in-person 

testimony, as well as the ability to 

submit argument through other means 

when testifying at an in-person hearing 

is not practical or desired. Veterans are 

able to request a video hearing before a 

Veterans Law Judge, which benefits 

rural veterans. Veterans are also able to 

submit photographs and other visual 

evidence during an appropriate 

evidentiary window. Finally, veterans 

and their representatives are able to 

submit written argument, including an 

informal hearing presentation. 

Section 504 of the Rehabilitation Act 

requires Federal agencies to provide 

individuals with disabilities meaningful 

access to programs, activities and 

facilities. Section 794(a) of title 29, 

United States Code, states that ‘‘[n]o 

otherwise qualified individual with a 

disability in the United States . . . shall, 

solely by reason of her or his disability, 

be excluded from participation in, be 

denied the benefits of, or be subjected 

to discrimination under any program or 

activity conducted by any Executive 

agency.’’ VA regulations implementing 

the Rehabilitation Act are found at 38 

CFR part 15. VA is prohibited from 

‘‘[d]eny[ing] a qualified individual with 

handicaps an opportunity to participate 

in or benefit from the aid, benefit, or 

service.’’ 38 CFR 15.130(b)(1)(i). Also, 

VA is required to ‘‘furnish appropriate 

auxiliary aids where necessary to afford 

an individual with handicaps an equal 

opportunity to participate in, and enjoy 

the benefits of, a program or activity 

conducted by the agency.’’ 38 CFR 

15.160(a)(1). The term ‘‘[a]uxiliary aids 

means services or devices that enable 

persons with impaired sensory, manual 

or speaking skills to have an equal 

opportunity to participate in, and enjoy 

the benefits of, programs for activities 

conducted by the agency.’’ 38 CFR 

15.103. 


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VA’s proposed amendments to 38 

CFR 20.700 do not indicate any intent 

by the Department to forego its 

obligations under the Rehabilitation Act 

and implementing regulations. VA did 

not propose any amendments to 38 CFR 

part 15. Rather, as required by the 

Rehabilitation Act and implementing 

regulations, if an individual has a 

disability that prevents or limits his or 

her ability to submit a written argument 

to the Board or attend a hearing at a VA 

facility and informs the Board that he or 

she needs an accommodation that will 

enable submission of an argument, the 

Board will make every effort to meet 

that need, including accepting an oral 

argument on audio cassette. However, 

given the fact that 38 CFR part 15 

governs Department efforts to ensure 

that individuals with disabilities can 

participate in all VA programs and that 

no one has submitted an oral argument 

on audio cassette to the Board in recent 

years, we do not believe it is necessary 

to maintain the reference to submission 

of oral argument on outdated technology 

in the new rule. VA notes that, prior to 

the changes 38 CFR 20.700 that we 

proposed and here confirm as final, 

paragraph (d) of that section made 

submission of argument by audio 

cassette available whenever an 

appellant ‘‘cannot, or does not wish to’’ 

appear. That provision made 

submission of argument by audio 

cassette much more broadly available 

than is necessary to comply with the 

Rehabilitation Act. Accordingly, the 

elimination of this provision does not 

create any tension with VA’s continued 

compliance with its regulations 

implementing the Rehabilitation Act. 

The commenter also states that VA 

should consider the efficiencies to the 

adjudication process of submission of 

recordings in lieu of formal hearings. 

VA strongly disagrees. Any such 

efficiencies are greatly outweighed by 

the benefits of an in-person hearing, the 

purpose of which is to elicit relevant 

and material testimony, assess the 

credibility of witnesses, resolve 

disputed issues of fact, and pose followup questions to witnesses and 

representatives. 38 CFR 20.700(b). 

As for the suggestion that argument 

submitted on an audio cassette would 

be ‘‘attractive to the schedules’’ of 

clinics and their clients, VA points out 

that, under § 20.704(a)(1) and (c), Board 

hearings are ‘‘scheduled at the 

convenience of appellants and their 

representatives with consideration of 

the travel distance involved,’’ and a 

written request to reschedule a hearing 

‘‘may be made at any time up to two 

weeks prior to the scheduled date of the 

hearing if good cause is shown.’’ 

VA therefore makes no changes based 

on these comments. 

O. Comments Concerning § 20.705— 

Functions of the Presiding Member 

Three commenters stated that 

§ 20.705(b)(7), allowing Veterans Law 

Judges to reject evidence presented 

during a hearing on the basis of 

irrelevance, contradicts the pro-veteran 

nature of Veterans’ law. The commenter 

requested that it be removed, asserting 

that veterans should be permitted to 

submit whatever evidence they wish 

into the record and that the Judge would 

be free to assess the evidence’s 

probative value. Paragraph (b)(7) states 

that it is the duty of the presiding 

member to exclude documentary 

evidence, testimony, and/or argument 

which is not relevant or material to the 

issue or issues being considered or 

which is unduly repetitious. Paragraph 

(b)(7) may not be used to exclude 

evidence that is relevant to the issue or 

issues on appeal. The commenter is 

correct that veterans may submit 

evidence and/or testimony into the 

record, and that the function of the 

presiding Member is to assess the 

evidence’s probative value. Rather, the 

purpose of paragraph (b)(7) is to allow 

the presiding Member to focus hearing 

testimony on the issue or issues on 

appeal. 

Another commenter expressed 

concern that VA is seeking to abrogate 

Bryant v. Shinseki, 23 Vet.App. 488 

(2010) by including paragraph (b)(7). 

These regulations do not and do not 

intend to limit the holding of Bryant. 

This regulation will assist in providing 

a focused, directed hearing which will 

be as assistive as possible to the veteran 

in substantiating the claim consistent 

with Bryant. However, based on the 

commenters’ concerns, VA will amend 

§ 20.705(b)(7) to state that the duties of 

the presiding Member include 

‘‘determining whether documentary 

evidence, testimony, and/or argument is 

relevant or material to the issue or 

issues being considered and not unduly 

repetitious’’. This amendment makes 

clear that VA will not exclude any 

evidence, but rather, will assist the 

veteran in focusing on evidence that 

helps to establish the elements of the 

claim. For example, if the VA decision 

on appeal contained a binding favorable 

finding as to the veteran’s current 

diagnosis, the presiding Member may 

instruct the veteran that no further 

testimony or other evidence is needed 

as to the current diagnosis, as that 

element of the claim has already been 

established. 

P. Comments Concerning § 20.714— 

Correction of Hearing Transcipts 

A commenter addressed 38 CFR 

20.714, which requires a veteran to seek 

correction of the hearing transcript 

within 30 days ‘‘after the date that the 

transcript is mailed’’ to the appellant. 

The commenter explains that this 

requirement is not accompanied with an 

assurance that a copy of the transcript 

will be provided to the veteran (unless 

requested) and points out that the 

veteran will not know to ask for the 

transcript or seek correction within such 

a limited timeframe unless the Board 

notifies him or her. Under § 20.712, if 

the appellant or representative requests 

a copy of the written transcript in 

accordance with § 1.577, the Board will 

furnish one copy to the appellant or 

representative. It would be unnecessary 

and wasteful to provide written 

transcripts where they are not 

requested; instead the veteran is given 

the choice to request a transcript. As 

stated, upon request, the transcript will 

be provided. VA has made no changes 

based on these comments. 

Q. Comments Concerning § 20.715— 

Loss of Hearing Tapes Or Transcripts— 

Motion for New Hearing 

In proposing § 20.715, the title read: 

‘‘Loss of hearing recordings or 

transcripts—motion for new hearing.’’ 

The inclusion of the word ‘‘motion’’ in 

the title was an error. Motions are no 

longer required, as the content of the 

rule makes clear. This final rule revises 

‘‘motion’’ to read ‘‘request’’. 

In regard to § 20.715(a)(2), one 

commenter stated that a veteran would 

be unfairly disadvantaged in the event 

that a recording is lost through no fault 

of his or her own, and suggested that 

affording the opportunity to submit 

argument and evidence within 60 days 

would be more equitable than only 

giving the veteran 30 days to respond to 

a letter asking whether a new hearing 

was requested. 

This rule eliminates the prior 

requirement that a motion for a new 

hearing be made by the veteran prior to 

VA offering a new hearing. This 

formality proved unnecessary in 

practice because VA often offered a new 

hearing without a motion. VA has 

proposed limiting the time period to 30 

days in the interest of expediting the 

case. It is intuitive that a veteran who 

had recently appeared for a hearing 

would be responsive to an offered 

choice. Giving the veteran a choice in 

the face of a lost or destroyed recording 

is consistent with the general theme of 

the Appeals Modernization Act. 

Regarding the commenter’s suggestion 


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that VA offer a third option—an 

additional 60 days to submit evidence 

or argument in lieu of a new hearing, 

this is not necessary as this option 

already exists. The veteran has 90 days 

following the Board hearing in which to 

submit evidence and may submit 

argument at any time prior to the Board 

decision. Accordingly, the veteran 

would have already had an opportunity 

to submit evidence and argument. VA 

has made no changes in response to this 

comment. 

R. Comments Concerning § 20.800— 

Order of Consideration of Appeals 

One commenter expressed concern 

that the proposed 38 CFR 20.800 

removes the authority of the Chairman 

of the Board of Veterans’ Appeals to 

expedite (advance on docket) cases on 

his or her own motion. The commenter 

is mistaken, as § 20.800 maintains the 

authority of the Chairman to advance 

cases on the docket on the Chairman’s 

own motion. (‘‘A case may be advanced 

on the docket to which it is assigned on 

the motion of the Chairman . . .’’) 

Several commenters raised concerns 

regarding claims in which the veteran 

chooses to appeal to the Board again 

following a Board remand and 

readjudication by the agency of original 

jurisdiction. Commenters suggested that 

such appeals must be automatically 

returned to the Board after the 

readjudication, and the original docket 

date restored. Automatically returning 

appeals to the Board without the 

veteran’s affirmative election would be 

inconsistent with the AMA. This facet 

of the current regulatory system means 

that veterans seeking further review are 

forced to return to the Board by default, 

regardless of whether this is their 

choice, or the most advantageous 

option. At the same time, the Board is 

compelled to expend limited resources 

on cases where the claimant may no 

longer disagree with VA’s decision, 

delaying adjudication of new appeals. 

In contrast, the AMA provides 

veterans with review choices whenever 

a VA decision is issued, without regard 

to whether the decision follows a 

remand from the Board. A veteran 

whose case is returned by the Board for 

readjudication has the same options as 

a veteran seeking review for the first 

time. In many instances, one of the 

agency of original jurisdiction lanes will 

be a better review option for a veteran 

whose case is adjudicated following 

remand, rather than an appeal to the 

Board. VA makes no changes based on 

this comment. 

S. Comments Concerning § 20.801—The 

Decision 

Multiple commenters asserted that the 

general statement required under 

proposed 38 CFR 20.801(b)(3) will not 

adequately inform veterans of the 

evidence that was not considered in a 

Board decision due to untimely 

submission. The commenters 

recommended that the Board decision 

include a more detailed description of 

the evidence that was not considered, to 

include noting the date unconsidered 

evidence was submitted. One of those 

commenters also asserted that the 

proposed regulations did not create an 

avenue for informing a veteran what 

recourse he or she has when evidence 

is not considered by VA. The law 

requires that each decision will contain 

a general statement indicating whether 

evidence submitted while the record 

was closed was not considered, and 

notice of the options available to have 

such evidence considered. See AMA 

section 2(w)(2)(C). The information in 

the decision should be the avenue for 

the pertinent information the veteran 

requires to prevail on the claim. As the 

precise procedures for providing more 

detailed notice may change based on 

technological systems, as well as other 

resources, VA will continue to address 

this matter through internal procedural 

guidance consistent with the law and 

regulations. VA made no changes based 

on these comments. 

T. Comments Concerning § 20.802— 

Remand for Correction of Error 

Several commenters suggested that 

the Board should expedite claims in 

which the veteran chooses to appeal to 

the Board again following a Board 

remand and readjudication by the 

agency of original jurisdiction. One 

commenter specifically stated that 

§ 20.800(e), providing that a new Notice 

of Disagreement filed after a 

reajudication by the agency of original 

jurisdiction will be docketed according 

to the date of the new Notice of 

Disagreement, was in conflict with 

§ 20.802(c), which provides that the 

agency of original jurisdiction must 

provide for the expeditious treatment of 

any claim that is remanded by the 

Board. 

VA disagrees that the rules are in 

conflict. Section 20.802(c) requires that 

the agency of original jurisdiction treat 

remands from the Board expeditiously; 

it does not require expeditious 

treatment by the Board. This section is 

consistent with revised 38 U.S.C. 5109, 

which provides: ‘‘The Secretary shall 

take such actions as may be necessary 

to provide for the expeditious treatment, 

by the Veterans Benefits 

Administration, of any claim that is 

returned by a higher-level adjudicator 

under section 5104B of this title or 

remanded by the Board of Veterans’ 

Appeals.’’ This provision does not apply 

to the Board. Accordingly, 20.800(e) is 

consistent with the statute and there is 

no conflict between §§ 20.800(e) and 

20.802(c). 

In amending 38 U.S.C. 5104B, 

Congress chose not to include a 

requirement that the Board expedite 

cases re-appealed to the Board following 

remand. If the Board were to expedite 

new appeals following remand, 

adjudication of other appeals at the 

Board would be delayed. In addition, as 

discussed above, under the new system 

the veteran must file a new Notice of 

Disagreement following the decision on 

remand to elect review by the Board. 

The Notice of Disagreement initiates a 

new appeal at the Board that may 

challenge the adjudication below on an 

entirely new basis on a new evidentiary 

record. Given these factors and 

Congress’ choice to limit the scope of 

section 5104B, prioritizing adjudication 

according to the date the Notice of 

Disagreement is received (within the 

evidentiary lane selected) achieves a 

reasonable balance among the interests 

at stake. VA makes no changes based on 

these comments. 

A commenter questioned how appeals 

returned from CAVC would be 

docketed. The AMA did not change the 

procedures at the Board for expediting 

cases returned from CAVC. Consistent 

with 38 U.S.C. 7112, the Board will 

continue to expedite the adjudication 

required by a CAVC remand. Notably, 

CAVC remands require the Board to 

readjudicate the appeal based upon the 

same record previously before the 

Board; accordingly, such appeals would 

be placed on the same docket that the 

veteran was on previously. VA makes 

no changes based on this comment. 

A commenter expressed general 

concerns as to how advisory medical 

opinions will be implemented pursuant 

to § 20.802(b). The commenter stated, 

‘‘[w]hile 38 [CFR] 20.802(c)(1)(ii) allows 

thorough consideration of the issues 

presented in the claim by experienced 

Board personnel and gives the Board 

broad authority to request IMOs in 

remands, we are concerned that this 

important tool may be buried under the 

clunky procedures in the regulation.’’ 

The commenter did not offer any 

specific suggestions or 

recommendations for this rulemaking, 

but did suggest that the new procedures 

placed a greater burden on the veteran 

to request an advisory medical opinion 

at the claim stage. The AMA eliminated 


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the statutory provision which 

previously authorized the Board to 

independently request medical 

opinions, and created a new process by 

which the Board orders such opinions 

through remands. 38 U.S.C. 

5103A(f)(2)(B). Section 20.802(b) 

implements the statutory amendments 

to this process. Therefore, VA makes no 

changes based on this comment. 

A commenter expressed concern that 

because remanded cases are no longer 

returned to the Board per the proposed 

rule, the Board will not be able to 

ensure that the agency of original 

jurisdiction complied with all remand 

directives, consistent with Stegall v. 

West, 11 Vet. App. 268, 271 (1999). The 

commenter urged VA to develop and 

implement a dedicated quality review 

methodology for Board remands. The 

design of the new system provides 

ample protections to ensure that 

subsequent adjudicators comply with 

the Board’s remand directives. The 

AMA requires that any pre-decisional 

duty to assist error discovered by an 

adjudicator be cured and that the 

decision be readjudicated by the agency 

of original jurisdiction. Following 

readjudication, the veteran may again 

request Higher-Level Review, file a 

Supplemental Claim, or appeal to the 

Board. If such action is taken within one 

year, the original effective date will be 

preserved. 

Regarding the commenter’s 

recommendation for dedicated quality 

review, the Direct Review docket, 

described in proposed § 20.301, 

captures quality feedback from appeals 

in which no additional evidence is 

added to the record. This allows VA to 

identify areas in which the claims 

process can be improved and will allow 

VA to develop targeted training. VA 

makes no changes based on these 

comments. 

U. Comments Concerning § 20.1003— 

Hearing on Reconsideration 

A commenter contended that the 

provision of § 20.1003 precluding a 

hearing on allowed Motions for 

Reconsideration unless the veteran had 

requested a hearing on the underlying 

Notice of Disagreement violates due 

process. The commenter remarked that 

a Motion for Reconsideration is solely 

based on the Board’s decision and 

therefore should not be affected by the 

Notice of Disagreement, which was filed 

prior to the Board’s decision. As laid out 

in § 20.1003, hearings are only provided 

if a motion for reconsideration has been 

allowed. Once allowed, the Chairman 

will assign a panel to adjudicate the 

underlying issues that were before the 

Board. This means the reconsideration 

panel continues to adjudicate pursuant 

to the Notice of Disagreement which led 

to the prior Board decision. Under the 

Appeals Modernization Act, the Notice 

of Disagreement indicates the claimant’s 

selection of a Board review option. For 

consistency purposes and because 

reconsideration is an adjudication 

pursuant to the Notice of Disagreement, 

VA makes no changes based on this 

comment. 

V. Comments Concerning § 20.1103— 

Finality of Determinations of the Agency 

of Original Jurisdiction Where Issue Is 

Not Appealed 

Two commenters were concerned that 

§ 20.1103 did not make clear the 

continued applicability of §§ 3.105 and 

3.156(c) to all claims. Additional 

commenters recommended adding a 

reference to CUE and 38 CFR 3.105 in 

proposed § 20.1103. VA agrees that prior 

to the initial decision on the claim VA 

must consider VA records as explained 

in Bell v. Derwinski, 2 Vet. App. 611 

(1992). The Bell doctrine of constructive 

possession will continue to apply, 

unchanged, while the duty to assist 

applies. This means that until the 

veteran receives the notice of decision 

of his claim or supplemental claim, all 

treatment records in the agency’s 

possession are deemed associated with 

the veteran’s file. The other commenter 

wanted VA to include a reference to 

§ 3.156(c) in proposed regulation 

§ 20.1103; this is unnecessary because 

§ 3.156(c) was untouched by the 

Appeals Modernization Act. Neither 

inclusion is necessary, and VA makes 

no changes based on these comments. 

W. Comments Concerning § 20.1302— 

Death of Appellant During Pendency of 

Appeal Before the Board 

A commenter suggested that VA 

should modify 38 CFR 20.1302 to 

provide that a substituted appellant will 

have similar timeframes to those the 

veteran would have had in the 

modernized appeal system. The 

language of 38 CFR 20.1302 already 

provides this policy. The amended rule 

provides that a substituted appellant 

will assume the veteran’s appeal in its 

original place on the docket. That 

means, the substituted appellant will 

maintain the same evidentiary 

timeframes of the docket the veteran 

selected. Furthermore, the substituted 

appellant will be free to submit 

argument in support of their appeal. VA 

makes no changes based on this 

comment. 

X. Comments Concerning § 20.1304— 

Request for a Change in Representation 

A commenter suggested that the 

timeframe for changing representation 

should mirror the timeline for 

submitting evidence, so that if the 

record is closed the veteran is no longer 

able to switch representation. This 

commenter explained once the record is 

closed, representation is ‘‘seriously 

constrained as to the strategy of the 

appeal at that stage.’’ VA proposed to 

maintain the 90-day window to change 

representation once an appeal is at the 

Board in § 20.1304 so that it mirrors the 

policy in place under the legacy system. 

Representatives maintain the ability to 

decline representation if they determine 

they cannot adequately support the 

veteran’s appeal. Furthermore, 

representatives maintain the ability to 

submit argument on the veteran’s 

appeal. VA makes no changes based on 

this comment. 

Y. Comments Concerning § 20.1305— 

Procedures for Legacy Appellants To 

Request a Change in Representation, 

Personal Hearing, or Submission of 

Additional Evidence Following 

Certification of an Appeal to the Board 

of Veterans’ Appeals 

Another commenter asked VA to add 

language to proposed 38 CFR 20.1305 

acknowledging the possibility of 

multiple 90-day notices and the 

opportunity for multiple Board hearings 

in a legacy system claim. In support of 

that request, the commenter asserted 

that multiple Board hearings are 

provided for in continuously pursued 

claims in the modern review system, 

provided a veteran had filed a 

supplemental claim between the 

hearings. However, the commenter is 

conflating the concept of continuous 

pursuit for the purposes of preserving 

an effective date and the concept of a 

continuous claim for the purposes of 

providing development such as a Board 

hearing. The modernized review system 

does not specifically provide for 

multiple Board hearings during 

processing of a single claim. Thus, the 

commenter’s assertion that the legacy 

system regulation should mirror the 

provisions applicable to Board hearings 

in the modernized system is misplaced. 

VA makes no changes based on this 

comment. 

One commenter objected to the option 

in the new system for a veteran who 

receives an adverse Board decision to 

file a supplemental claim based on new 

and relevant evidence, asserting that 

this option may operate to prevent 

finality and judicial review. The 

commenter was concerned that a 


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veteran in receipt of an adverse Board 

decision might be tempted to exercise 

the option to file a supplemental claim, 

causing the veteran to return to the first 

step of the adjudication process and 

thereby prolonging resolution of the 

claim. Because the option to file a 

supplemental claim following a Board 

decision is a feature of the statute, VA 

does not have discretion to adopt a 

different procedure. In any event, filing 

a supplemental claim following a Board 

decision is optional, and the veteran 

may instead choose to file an appeal 

with the U.S. Court of Appeals for 

Veterans Claims or, alternatively, file a 

request with the Board for revision 

based on clear and unmistakable error 

once the judicial appeal period has 

expired. To the extent that the 

commenter suggests that VA 

adjudicators will be predisposed to 

deny supplemental claims, any such 

predisposition is against VA policy. 

Adjudicators are required to review a 

supplemental claim objectively and 

fairly based on its merits under 

applicable law. VA makes no changes 

based on this comment. 

Z. Comments Concerning § 20.1403— 

What Constitutes Clear and 

Unmistakable Error; What Does Not 

One commenter questioned why VA 

inserted a time limitation on the 

evidence in § 20.1403 that would affect 

legacy appellants. However, this final 

rule does not amend the 90-day time 

period already mentioned in § 20.1403; 

there is no new time limitation. 

Another commenter expressed 

concern that the proposed regulations 

newly restrict evidence that may be 

submitted in support of a motion for 

revision of a prior Board decision based 

on CUE or, at the least, do not seem to 

accommodate the possibility, under the 

modernized system, of submitting 

additional evidence to support a CUE 

motion via a supplemental claim. 

However, the outcome of CUE continues 

to be based on the evidence of record 

before the Board at the time of the prior 

Board decision. That underlying 

consideration is unchanged by the 

Appeals Modernization Act. To the 

extent that the description of CUE in 

§ 3.105(a) has been expanded in the 

proposed regulations, that expansion 

merely incorporates longstanding 

caselaw. As the outcome of a CUE 

motion continues to depend upon 

whether the correct facts, as they were 

known at the time of the decision, were 

before the adjudicator, and whether the 

statutory and regulatory provisions 

extant at the time were correctly 

applied, VA makes no changes based on 

this comment. 

AA. General Comments 

Several commenters encouraged VA 

to create timeliness goals regarding the 

processing of legacy and Appeals 

Modernization Act cases. One 

commenter suggested that the 

regulations should include a provision 

requiring that representatives have 

access to online tools that provide wait 

time predictions and appeal status. VA 

has carefully considered this comment, 

and has determined that no changes to 

the regulatory amendments are required. 

The issue raised by the commenter 

concerns a sub-regulatory policy 

determination within the agency’s 

discretion. VA will address this matter 

through internal procedural guidance 

consistent with the law and regulations. 

One commenter stated that VA should 

amend the regulations to specify the 

time period when the claimant and 

representative may submit a written 

argument when the claimant files a 

Notice of Disagreement and requests 

direct review without the opportunity 

for a hearing or to submit additional 

evidence. The proposed regulations did 

not limit the period when written 

argument can be submitted to the Board 

between the filing of an NOD and 

issuance of the Board decision. We do 

not believe that imposition of a time 

period for submission of argument 

would appreciably speed up the 

appellate process, and it could deprive 

the veteran of an opportunity to argue 

in favor of his or her claim. VA makes 

no changes based on this comment. 

One commenter remarked that VA 

should define the term ‘‘timely’’ in 

regulation, and that failure to do so 

would be unlawful. The AMA did not 

amend 38 U.S.C. 7101 which already 

provides that the Board must have 

sufficient resources to ‘‘conduct 

hearings and dispose of appeals 

properly before the Board in a timely 

manner.’’ However, VA may not 

determine future resource levels 

without Congressional authorization. 

Defining the term ‘‘timely’’ in regulation 

would be improper as it would infringe 

on the appropriations process. Only 

Congress may determine whether VA 

requires additional resources. Therefore, 

VA makes no changes based on this 

comment. 

Several commenters expressed 

concern that the new system will be too 

complicated and will disadvantage pro 

se claimants. The fundamental features 

of the framework are required by law; 

however, VA acknowledges the 

commenter’s concern and remains 

committed to the non-adversarial 

process. 

One commenter asked whether, if a 

veteran has an appeal in the legacy 

system that becomes inextricably 

intertwined with an issue in the 

modernized appeal system, the veteran 

will be given the choice to remain in the 

legacy system or have both issues 

proceed in the modernized system. VA 

has carefully considered this comment 

and has determined that no changes to 

the regulatory amendments are required. 

The issue raised by the commenter may 

be dealt with as a sub-regulatory policy 

determination within the agency’s 

discretion. VA makes no regulatory 

changes based on this comment, but 

will address this matter through internal 

procedural guidance consistent with the 

law and regulations. 

One commenter remarked that the 

ability to select different review options 

for different claims will cause confusion 

and asked if claims can be rejoined once 

the claimant selects different review 

options. VA will respect the veteran’s 

choice to select different review options 

for different issues. A claimant may 

choose to modify the Notice of 

Disagreement, as provided in 

§ 20.202(c), if he or she wishes to 

change review options. Thus, it is 

possible for a claimant to ‘‘rejoin’’ 

claims as described by the commenter. 

However, VA will not automatically 

rejoin claims for administrative 

efficiency purposes or any other reason 

unless the claimant specifically requests 

this under § 20.202(c). The fundamental 

features of the framework are required 

by law, and VA encourages claimants to 

discuss their review options with their 

representatives, if they have one. 

Claimants have one year from the date 

of notification of the rating decision on 

appeal to modify their review option. 

VA makes no changes based on this 

comment. 

One commenter suggested that VA 

does not need to create a third docket 

at the Board for Veterans’ Appeals for 

veterans who wish to submit new 

evidence without holding a hearing, 

since the Appeals Modernization Act 

only required a minimum of at least two 

dockets. This commenter suggests 

veterans who submit additional 

evidence within 90 days of the Notice 

of Disagreement should be maintained 

on the same docket as the closed record 

review. VA has considered this 

comment, but determined that 

combining the direct review and 

evidence only dockets would be 

contrary to the spirit of the Appeals 

Modernization Act. One key advantage 

of maintaining a separate docket that 

does not allow for a hearing or 

submission of additional evidence is 

that the Board reviews the same record 


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that was before the agency of original 

jurisdiction. This review provides VA 

with a quality feedback loop, in which 

VA is able to identify trends and areas 

for correction in the adjudications by 

the agencies of original jurisdiction. 

This quality feedback loop will provide 

for more targeted training of VA staff to 

ensure accurate adjudication of claims. 

If additional evidence was added to 

appeals in this lane, then the Board’s 

determination may be based on the 

changed record and would no longer 

provide the same direct quality review 

feedback. VA makes no changes based 

on this comment. 

A commenter suggested that if a 

veteran who has an appeal pending with 

the Board submits evidence, this new 

evidence should automatically be 

considered as a supplemental claim. 

This suggestion is contrary to the 

framework established in the Appeals 

Modernization Act. Specifically, the 

Appeals Modernization Act explicitly 

provides that once a veteran chooses a 

review option he/she may not pursue 

another review option until a decision 

is received or the veteran affirmatively 

withdraws the initial review option. 38 

U.S.C. 5104C(a)(2)(A). Accordingly, VA 

makes no changes based on this 

comment. 

One commenter remarked that VA 

should provide a formal application for 

a motion for CUE. The purpose of this 

rulemaking is to amend VA’s claims 

adjudication, appeals, and Rules of 

Practice of the Board of Veterans’ 

Appeals regulations as required to 

implement the AMA. Nevertheless, VA 

will take the commenter’s suggestion 

under advisement. 

Additional commenters suggested that 

VA create a standardized form for 

Veterans to use in withdrawing appeals 

before the Board. The purpose of this 

rulemaking is to amend VA’s claims 

adjudication, appeals, and Rules of 

Practice of the Board of Veterans’ 

Appeals regulations as required to 

implement the AMA. Nevertheless, VA 

will take the commenters’ suggestion 

under advisement. 

BB. Comments Concerning VA Form 

10182—Notice of Disagreement 

One commenter raised concern that 

the required forms referred to in the 

regulations were not published as part 

of the rulemaking proposal. Because the 

Notice of Disagreement is not a new 

information collection, but a revised 

information collection under OMB 

control number 2900–0674, it was not 

published with the proposed 

rulemaking. Rather, notice of the 

proposed changes to 2900–0674 was 

published in the Federal Register on 

August 23, 2018, pursuant to the 

Paperwork Reduction Act. 83 FR 42769. 

The fact of separate publication was 

noted at the proposed rule stage and 

publication of the notice closely 

followed publication of the rulemaking 

proposal. As noted in the notice, a copy 

of the draft form will be provided upon 

request. VA makes no change based on 

this comment. 

One commenter expressed concern 

that VA forms are too long and 

suggested the information could instead 

be found on a web page. VA wants to 

ensure all Veterans have access to the 

important information, including those 

Veterans without access to the internet. 

Therefore, VA will continue to include 

this information on the forms. However, 

VA has worked to streamline the design 

of these forms and the accompanying 

information. VA makes no change based 

on this comment. 

CC. Comments of Scope 

Two commenters inquired about VA’s 

plan regarding staffing, personnel 

issues, and training. These comments 

are outside the scope of the rulemaking. 

Part 21—Vocational Rehabilitation and 

Education 

VA received two comments 

specifically related to Vocational 

Rehabilitation and Education (VR&E). 

One comment concerned VR&E’s lack of 

automation and how that may impact 

timely processing of payments to 

facilities. The comment stated ‘‘VR&E is 

antiquated and may need updates. For 

example, it is not automized, at least for 

certifying officials, which means some 

certifications may fall into a ‘black 

hole’. Schools often wait up to 6 months 

to receive payment.’’ This comment is 

not related to appeals processing and 

does not affect the rule. Therefore, VA 

makes no changes to the rule based on 

this comment. 

The second comment stated ‘‘VR&E is 

also significantly understaffed. How 

would current staffing accommodate the 

new lanes of appeals? For example, one 

of the proposed ‘‘lanes’’ would enable a 

claimant to get a second opinion on 

VA’s claims decision. If VR&E 

employees are busy giving second 

opinions, what type of further backlog 

would this create for newly submitted 

claims? Or would the newly-required 

second opinion in appeals fall by the 

wayside?’’ VR&E currently has a process 

in place for ‘‘second opinions’’, which 

VA refers to as administrative reviews. 

Administrative reviews are very similar 

to a higher-level review in the new 

appeals process. Under VR&E’s current 

processes, administrative reviews are 

completed by management level 

personnel at the regional office, and in 

some very specific situations, at the 

Central Office level. Under the new 

appeals process, management level 

personnel, as well as supervisory 

personnel who are not currently 

permitted to perform administrative 

reviews, will be tasked with completing 

higher-level reviews. As such, VR&E 

will have more employees available to 

perform higher-level reviews than it 

does under the current system for 

administrative reviews. VR&E does not 

anticipate an increase in the number of 

requests for a ‘‘second opinion’’, or 

higher-level review, under the new 

appeals process than it receives under 

the current administrative review 

process. In addition, it is important to 

note that newly submitted claims are 

processed by non-management level 

VR&E staff, Vocational Rehabilitation 

Counselors (VRC). VRCs will not be 

performing higher-level reviews. Lastly, 

and unrelated to the new appeals 

process, VR&E is currently in the 

process of hiring an additional 169 

VRCs across the nation. These VRCs 

manage all aspects of the claims 

process, including newly submitted 

claims. Therefore, based on these many 

factors, staffing issues are not an 

identified area of concern for VR&E 

under the new appeals process; as such, 

VA makes no changes to the rule based 

on this comment. 

One commenter expressed concern 

about the impact implementation of the 

AMA may have on the implementation 

of the Forever GI Bill. VA does not 

expect implementation of the AMA to 

impact ongoing benefits or the 

implementation of the Forever GI Bill. 

Finally, several commenters urged 

consistent use of terms, definitions, and 

descriptions. Based on comments 

received relative to Part 3, redundant 

language in § 21.416 is adjusted to refer 

back to part 3, specifically § 3.2601, in 

order to avoid potential confusion. 

Additionally, references to timeliness 

goals in § 21.416 have been removed for 

reasons discussed. 

Paperwork Reduction Act 

The Paperwork Reduction Act of 1995 

(44 U.S.C. 3507(d)) requires that VA 

consider the impact of paperwork and 

other information collection burdens 

imposed on the public. According to the 

1995 amendments to the Paperwork 

Reduction Act (5 CFR 1320.8(b)(2)(vi)), 

an agency may not collect or sponsor 

the collection of information, nor may it 

impose an information collection 

requirement unless it displays a 

currently valid Office of Management 

and Budget (OMB) control number. This 

rule includes provisions constituting 


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new collections of information under 

the Paperwork Reduction Act of 1995 

that require approval by the OMB. 

Accordingly, under 44 U.S.C. 3507(d), 

VA has submitted a copy of this 

rulemaking action to OMB for review. 

OMB assigns control numbers to 

collections of information it approves. 

VA may not conduct or sponsor, and a 

person is not required to respond to, a 

collection of information unless it 

displays a currently valid OMB control 

number. 38 CFR 3.160(c), 3.2501, 

3.2601, 8.30, 20.202, and 21.1034 

contain collections of information under 

the Paperwork Reduction Act of 1995. If 

OMB does not approve the collections 

of information as requested, VA will 

immediately remove the provisions 

containing a collection of information or 

take such other action as is directed by 

the OMB. 

The collections of information 

contained in 38 CFR 3.160(c), 3.2501, 

3.2601, 8.30, 20.202, 21.416, and 

21.1034 are described immediately 

following this paragraph. VA intends to 

revise OMB Control No. 2900–0674 so 

that it will contain all appeals-related 

information collections for the legacy 

and new systems, including the four 

claims and appeals related information 

collections previously approved under 

OMB Control No. 2900–0085. OMB 

Control No. 2900–0085 will be 

discontinued upon approval of the 

request to renew 2900–0674. As 

discussed in the regulatory impact 

analysis, VA believes that the net 

impact of the reorganization of the 

collections of information is likely to be 

deregulatory. 

For each of the collections of 

information below, VBA used general 

wage data from the Bureau of Labor 

Statistics (BLS) to estimate the 

respondents’ costs associated with 

completing the information collection. 

According to the latest available BLS 

data, the mean hourly wage of full-time 

wage and salary workers was $24.34 

based on the BLS wage code—‘‘00–0000 

All Occupations.’’ This information was 

taken from the following website: 

https://www.bls.gov/oes/current/oes_

nat.htm (May 2017). 

Title: Decision Review Request: 

Supplemental Claim (VA Form 20– 

0995). 

OMB Control No.: 2900–XXXX 

(NEW). 

CFR Provisions: 38 CFR 3.160(a), 

3.2501, 8.30, 21.416, and 21.1034. 

Summary of collection of information: 

VA administers an integrated program 

of benefits and services, established by 

law, for veterans, service personnel, and 

their dependents and/or beneficiaries. 

Title 38 U.S.C. 5101(a) provides that a 

specific claim in the form provided by 

the Secretary must be filed in order for 

benefits to be paid to any individual 

under the laws administered by the 

Secretary. VA is proposing a new 

information collection in this regulatory 

action under 38 CFR 3.160(c), 3.2501, 

8.30, 21.416, and 21.1034 for 

supplemental claims in accordance with 

Public Law 115–55. Public Law 115–55 

includes a new review option for 

Veterans or claimants who disagree with 

a VA claims decision known as a 

‘‘supplemental claim’’ that is conducted 

within the agency of original 

jurisdiction. This review option is 

designed to allow submission of new 

and relevant evidence in connection 

with a previously decided claim. The 

new collection of information in 38 CFR 

3.160(c), 3.2501, and 8.30 would require 

claimants to submit VA Form 20–0995 

in either paper or electronic submission, 

where applicable, in order to initiate a 

supplemental claim for VA disability 

benefits. 

Description of need for information 

and proposed use of information: The 

collection of information is necessary to 

determine the issue(s) upon which a 

claimant is dissatisfied and seeks to 

initiate a supplemental claim for VA 

disability benefits. VA will use this 

information to initiate or determine the 

claimant’s eligibility under the 

supplemental claim in accordance with 

the AMA. 

Description of likely respondents: 

Veterans or claimants who indicate 

dissatisfaction with a decision issued by 

a VA agency of original jurisdiction and 

would like review of new and relevant 

evidence in support of their claim for 

disability benefits. VA cannot make 

further assumptions about the 

population of respondents because of 

the variability of factors such as the 

educational background and wage 

potential of respondents. Therefore, 

VBA used general wage data to estimate 

the respondents’ costs associated with 

completing the information collection. 

Estimated number of respondents per 

month/year: 80,000 annually. 

Estimated frequency of responses per 

month/year: One time for most Veterans 

or other claimants; however, the 

frequency of responses is also 

dependent on the number of claims 

submitted on this form by the claimant 

as VA does not limit the number of 

claims that a claimant can submit. 

Estimated average burden per 

response: 15 minutes. 

Estimated total annual reporting and 

recordkeeping burden: 20,000 hours. 

Estimated cost to respondents per 

year: VBA estimates the total cost to all 

respondents to be $486,800 per year 

(20,000 burden hours × $24.34 per 

hour). Legally, respondents may not pay 

a person or business for assistance in 

completing the information collection. 

Therefore, there are no expected 

overhead costs for completing the 

information collection. 

Title: Decision Review Request: 

Higher-Level Review (VA Form 20– 

0996). 

OMB Control No.: 2900–XXXX 

(NEW). 

CFR Provisions: 38 CFR 3.2601, 8.30, 

21.416, and 21.1034. 

Summary of collection of information: 

VA administers an integrated program 

of benefits and services, established by 

law, for veterans, service personnel, and 

their dependents and/or beneficiaries. 

Title 38 U.S.C. 5101(a) provides that a 

specific claim in the form provided by 

the Secretary must be filed in order for 

benefits to be paid to any individual 

under the laws administered by the 

Secretary. The new collection of 

information in 38 CFR 3.2601, 8.30, 

21.416, and 21.1034 would require 

claimants to submit VA prescribed 

applications in either paper or 

electronic submission of responses, 

where applicable, in order to request a 

higher-level review of a VA decision on 

a claim for benefits. 

Description of need for information 

and proposed use of information: The 

collection of information is necessary to 

determine the issue(s) upon which a 

claimant is dissatisfied and seeks 

higher-level review by VA. VA will use 

this information to initiate a higherlevel review by an agency adjudicator in 

accordance with the AMA. 

Description of likely respondents: 

Veterans or other claimants who 

indicate dissatisfaction with a decision 

issued by a VA office agency of original 

jurisdiction. 

Estimated number of respondents per 

month/year: 35,000 annually. 

Estimated frequency of responses per 

month/year: One response total. 

Estimated average burden per 

response: 15 minutes. 

Estimated total annual reporting and 

recordkeeping burden: 8,750 hours. 

Estimated cost to respondents per 

year: As above, VBA used May 2017 

general wage data to estimate the 

respondents’ costs associated with 

completing the information collection. 

VBA estimates the total cost to all 

respondents to be $212,975 per year 

(8,750 burden hours × $24.34 per hour). 

Legally, respondents may not pay a 

person or business for assistance in 

completing the information collection. 

Therefore, there are no expected 


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164 Federal Register / Vol. 84, No. 13 / Friday, January 18, 2019 / Rules and Regulations 

overhead costs for completing the 

information collection. 

Title: Decision Review Request: Board 

Appeal (Notice of Disagreement) (VA 

Form 10182). 

OMB Control No.: 2900–0674. 

CFR Provisions: 38 CFR 20.202. 

Summary of collection of information: 

38 CFR 20.202 would require that in 

order for a claimant to appeal one or 

more previously decided issues to the 

Board, that claimant must file a Notice 

of Disagreement in the form prescribed 

by VA. In order to promote efficiency in 

the adjudication process while ensuring 

that the process is simple and reliable 

for claimants, VA will require the use of 

a specific form for this purpose. VA 

Form 10182 will be titled Decision 

Review Request: Board Appeal (Notice 

of Disagreement). To be accepted by the 

Board, a complete Notice of 

Disagreement will be required to 

identify the specific determination with 

which the claimant disagrees and must 

indicate if the claimant requests to have 

a hearing before the Board, an 

opportunity to submit additional 

evidence, or neither. 38 U.S.C. 

7105(b)(3). Additionally, in order to 

permit appellants and their 

representatives to exercise their appealrelated rights, the information collected 

will include withdrawals of services by 

representatives (38 CFR 20.6), requests 

by appellants for changes in hearing 

dates or methods (38 CFR 20.703), and 

motions for reconsideration of Board 

decisions (38 CFR 20.1002). 

Description of need for information 

and proposed use of information: This 

collection of information is necessary to 

permit claimants to appeal to the Board, 

to identify their request for a hearing 

and selection of the evidentiary record 

on appeal, to request new times or 

methods for hearings, to seek 

reconsideration of Board decisions, and 

so that representatives may effectively 

move to withdraw their representation 

of a claimant. 

Description of likely respondents: 

Veterans or other claimants who 

indicate dissatisfaction with a decision 

issued by a VA agency of original 

jurisdiction, and who are appealing one 

more issues in that decision to the 

Board. 

Estimated number of respondents per 

month/year: 43,000 annually. 

Estimated frequency of responses per 

month/year: One response per 

respondent accounted for above. 

Estimated average burden per 

response: An average of 30 minutes. 

Estimated total annual reporting and 

recordkeeping burden: 21,500 hours 

annually. 

Estimated cost to respondents per 

year: The respondent population for this 

information collection is composed of 

individual appellants or their 

representatives. In this regard, VA notes 

that the earning capacity of individual 

appellants spans an extremely wide 

spectrum. Additionally, an appellant’s 

representative may be an employee of a 

recognized Veterans’ Service 

Organization who provides appellate 

services as part of their overall free 

services to Veterans, or may be an 

attorney-at-law or accredited agent that 

charges a fee. VA cannot make further 

assumptions about the population of 

respondents because of the variability of 

factors such as the educational 

background and wage potential of 

respondents. Therefore, VBA used the 

BLS general wage data from May 2017 

to estimate the respondents’ costs 

associated with completing the 

information collection. VA seeks 

comment as to whether use of the 

general wage data is appropriate in light 

of this wide spectrum of earning 

capacity in individual respondents. VA 

estimates the total cost to respondents 

using VA Form 10182 in the new 

appeals system to be $523,310 per year 

(21,500 burden hours × $24.34 per 

hour). 

The total costs of these information 

collections to respondents is estimated 

to be $8.4 million over a five-year 

period (FY2019–FY2023). Although it is 

difficult to predict the percentage of 

respondents that will be able to take 

advantage of the new system forms each 

year beginning in February 2019, VA 

estimates that the incremental 

information collection costs for 

respondents will be $1,092,258 in 

FY2019. VA has also determined there 

will be incremental information 

collection savings of $6,258,423 over a 

five-year period, once the legacy forms 

are no longer in use. This equates to 

approximately $1.25 million per year or 

$1.77 million per year on an ongoing 

basis discounted at 7 percent relative to 

year 2016, over a perpetual time 

horizon. This final rule is considered an 

E.O. 13771 deregulatory action. 

Regulatory Flexibility Act 

The Secretary hereby certifies that 

these regulatory amendments 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 will not directly affect any 

small entities. Only VA beneficiaries 

and their survivors would 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 Orders 12866, 13563, 13771 

Executive Orders 12866 and 13563 

direct agencies to assess the 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 

effects, and other advantages; 

distributive impacts; and equity). 

Executive Order 13563 (Improving 

Regulation and Regulatory Review) 

emphasizes the importance of 

quantifying both costs and benefits, 

reducing costs, harmonizing rules, and 

promoting flexibility. Executive Order 

12866 (Regulatory Planning and 

Review) defines a ‘‘significant 

regulatory action,’’ which requires 

review by OMB, as ‘‘any regulatory 

action that is likely to result in a rule 

that may: (1) Have an annual effect on 

the economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or tribal governments or 

communities; (2) Create a serious 

inconsistency or otherwise interfere 

with an action taken or planned by 

another agency; (3) Materially alter the 

budgetary impact of entitlements, 

grants, user fees, or loan programs or the 

rights and obligations of recipients 

thereof; or (4) Raise novel legal or policy 

issues arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in this Executive Order.’’ 

The economic, interagency, 

budgetary, legal, and policy 

implications of this rule have been 

examined, and it has been determined 

that this is an economically significant 

regulatory action under Executive Order 

12866. As discussed in the Paperwork 

Reduction Act section of this final rule, 

we estimate that this final rule will lead 

to paperwork cost savings of 

approximately $1.77 million This rule is 

expected to be an E.O. 13771 

deregulatory action. Details on the 

estimated cost savings of this rule can 

be found in the rule’s economic 

analysis. VA’s impact analysis can be 

found as a supporting document at 

http://www.regulations.gov, usually 

within 48 hours after the rulemaking 

document is published. Additionally, a 

copy of the rulemaking and its impact 

analysis are available on VA’s website at 

http://www.va.gov/orpm by following 

the link for VA Regulations Published 

from FY 2004 Through Fiscal Year to 

Date. 


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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 will have no such 

effect on State, local, and tribal 

governments, or on the private sector. 

Congressional Review Act 

The Secretary of Veterans Affairs 

finds that there is good cause under the 

provisions of 5 U.S.C. 808(2) to publish 

this final rule without prior 

Congressional review and to make the 

rule effective on February 19, 2019. 

This final rule meets the 

‘‘impracticable’’ and ‘‘public interest’’ 

exceptions in 5 U.S.C. 808(2) because 

any delay in implementing the rule 

would have a severe detrimental impact 

on Veterans seeking benefits. VA’s 

legacy appeals process is overly 

complex and can take many years for 

claimants to receive resolution on their 

claims. Under the legacy appeals 

process, Veterans wait an average of 3 

years for a final decision if they choose 

to appeal, and an average of 7 years if 

they continue their appeal to the Board. 

The Veterans Appeals Improvement and 

Modernization Act authorizes a 

streamlined process that provides 

Veterans and other claimants with 

choices when seeking review of a VA 

decision and much faster resolution. 

This rule is necessary to implement the 

Act, and provides much-needed 

comprehensive reform for the legacy 

appeals process. VA estimates that 

under this rule the average time to 

complete an appeal will be 

approximately 2 years less than under 

the legacy appeals process. However, 

Congress required within the Act that 

VA have the ‘resources, personnel, 

office space, procedures, and 

information technology required’ to 

implement the new system. VA cannot 

implement the Act as planned without 

final regulations allowing claimants to 

participate in the new system. Delaying 

the effective date of this final rule will 

prolong the existence, and result in an 

increased number of legacy process 

appeals, thus increasing the number of 

appeals that are subject to, and will 

themselves add to, severe delays in 

appeals processing and a prolonged 

inability for Veterans to timely receive 

their earned benefits. 

While the severity of the impact on 

Veterans seeking benefits constitutes 

good cause to implement these 

presumptions with an earlier effective 

date, there is an additional basis for the 

Secretary’s decision that good cause 

exists. Although the rule is a major rule 

under the Congressional Review Act, 

VA believes that this rule will not result 

in any new or increased benefit 

payments (transfers) to claimants. 

Furthermore, the transfers associated 

with this rulemaking ($100 million or 

more in any given year), which would 

already be due to Veterans, would be 

the same with or without this rule. The 

difference is simply because VA 

believes that the rule will lead to 

claimants receiving a decision earlier 

than they would under the legacy 

appeals process, causing a shift in the 

timing of benefits paid to Veterans and 

other beneficiaries to earlier fiscal years. 

Lastly, VA would be obligated to pay 

these transfers regardless of timing and 

the amount of transfers awarded to 

veterans would not be a result of this 

rulemaking. Since the rule will reduce 

the time it takes to review or adjudicate 

an appeal, the benefits will be paid 

much quicker than under the legacy 

appeals process. VA believes that total 

benefits paid to an individual 

beneficiary granted a positive appeal 

decision would be the same under both 

this rule and the legacy appeals process; 

only the timing of these payments 

would differ. The provisions of this rule 

do not go beyond the intent or structure 

of the Act, which was enacted after the 

Congress received a cost-neutral 

assessment from the Congressional 

Budget Office. Therefore, because 

Congress itself has already committed to 

the structure that is causing the timing 

of the benefits payments to be ‘‘pulled 

forward’’ in time and is aware of the 

impact of the law as enacted, it would 

be unnecessary and contrary to the 

public interest to delay the effective 

date of the final rule to allow for the 

congressional review contemplated by 

the Congressional Review Act. 

Accordingly, the Secretary has 

determined that there is good cause 

under 5 U.S.C. 808(2) to publish this 

final rule with a February 19, 2019 

effective date. 

VA received 29 comments in response 

to the proposed rule. The comments 

received were generally requests for 

clarification or recommendations for 

substantive changes. In turn, the 

majority of changes made in response to 

comments were clarifying in nature, 

conformed the regulations more closely 

to the statutory requirements, or, where 

substantive, were of a pro-claimant 

nature. The comments received and 

subsequent changes made were not 

controversial. For example, based on 

commenter suggestions, VA provided 

additional clarity on the definitions of 

‘‘claim,’’ ‘‘issue,’’ and ‘‘new evidence.’’ 

VA made changes to the evidentiary 

standard used to overturn favorable 

findings that provided greater protection 

to claimants, made improvements to the 

notice provided to claimants regarding 

opportunities to opt into the new 

system, and extended the amount of 

time appellants have to modify their 

Notice of Disagreement. Additionally, 

parts 8 and 21 were updated in several 

areas to more closely align with the 

language of the Act. 

As noted, the comments received, and 

changes made in response, generally 

only addressed marginal aspects of the 

rule, and did not oppose the underlying 

substance of the rule, which mainly 

implemented mandatory requirements 

imposed by Congress in the Act. This 

demonstrates that a delay of the 

effective date of the rule for an 

additional period of congressional 

review for an assessment of the burden 

on the public would be unnecessary. 

Accordingly, the Secretary finds there 

is good cause to dispense with the 

opportunity for prior Congressional 

review and to publish this final rule 

with an effective date on February 19, 

2019. 

Catalog of Federal Domestic Assistance 

Numbers and Titles 

The Catalog of Federal Domestic 

Assistance program numbers and titles 

for this rule 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 Non-ServiceConnected 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 


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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. 

List of Subjects 

38 CFR Part 3 

Administrative practice and 

procedure, Claims, Disability benefits, 

Health care, Pensions, Radioactive 

materials, Veterans. 

38 CFR Part 8 

Life insurance, Military personnel, 

Veterans. 

38 CFR Part 14 

Administrative practice and 

procedure, Claims, Courts, Foreign 

relations, Government employees, 

Lawyers, Legal services, Organization 

and functions (Government agencies), 

Reporting and recordkeeping 

requirements, Surety bonds, Trusts and 

trustees, Veterans. 

38 CFR Parts 19 and 20 

Administrative practice and 

procedure, Claims, Veterans. 

38 CFR Part 21 

Administrative practice and 

procedure, Armed forces, Civil rights, 

Claims, Colleges and universities, 

Conflict of interests, Defense 

Department, Education, Employment, 

Grant programs—education, Grant 

programs—veterans, Health care, Loan 

programs—education, Loan programs— 

veterans, Manpower training programs, 

Reporting and recordkeeping 

requirements, Schools, Travel and 

transportation expenses, Veterans, 

Vocational education, Vocational 

rehabilitation. 

Signing Authority 

The Secretary of Veterans Affairs 

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. Robert L. Wilkie, 

Secretary, Department of Veterans 

Affairs, approved this document on 

November 29, 2018, for publication. 

Dated: December 21, 2018. 

Consuela Benjamin, 

Regulations Development Coordinator, Office 

of Regulation Policy & Management, Office 

of the Secretary, Department of Veterans 

Affairs. 

For the reasons set forth in the 

preamble, VA amends 38 CFR parts 3, 

8, 14, 19, 20, and 21 as follows: 

PART 3—ADJUDICATION 

Subpart A—Pension, Compensation, 

and Dependency and Indemnity 

Compensation 

■ 1. The authority citation for part 3, 

subpart A continues to read as follows: 

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

otherwise noted. 

■ 2. Amend § 3.1 by revising paragraph 

(p) to read as follows: 

§ 3.1 Definitions. 

* * * * * 

(p) Claim means a written or 

electronic communication requesting a 

determination of entitlement or 

evidencing a belief in entitlement, to a 

specific benefit under the laws 

administered by the Department of 

Veterans Affairs submitted on an 

application form prescribed by the 

Secretary. (See scope of claim, 

§ 3.155(d)(2); complete claim, § 3.160(a); 

issues within a claim, § 3.151(c)). 

(1) Initial claim. An initial claim is 

any complete claim, other than a 

supplemental claim, for a benefit on a 

form prescribed by the Secretary. The 

first initial claim for one or more 

benefits received by VA is further 

defined as an original claim. (See 

original claim, § 3.160(b)). Initial claims 

include: 

(i) A new claim requesting service 

connection for a disability or grant of a 

new benefit, and 

(ii) A claim for increase in a disability 

evaluation rating or rate of a benefit 

paid based on a change or worsening in 

condition or circumstance since the last 

decision issued by VA for the benefit. 

(2) Supplemental claim. A 

supplemental claim is any complete 

claim for a VA benefit on an application 

form prescribed by the Secretary where 

an initial or supplemental claim for the 

same or similar benefit on the same or 

similar basis was previously decided. 

(See supplemental claim; § 3.2501.) 

* * * * * 

§ 3.31 [Amended] 

■ 3. In § 3.31, remove the word 

‘‘reopened’’ and add in its place the 

word ‘‘supplemental’’. 

■ 4. Amend § 3.103 by revising the 

section heading and paragraphs (b)(1), 

(c), (d), and (f) to read as follows: 

§ 3.103 Procedural due process and other 

rights. 

* * * * * 

(b) * * * 

(1) General. Claimants and their 

representatives are entitled to notice of 

any decision made by VA affecting the 

payment of benefits or the granting of 

relief. Such notice will clearly set forth 

the elements described under paragraph 

(f) of this section, the right to a hearing 

on any issue involved in the claim as 

provided in paragraph (d) of this 

section, the right of representation, and 

the right, as well as the necessary 

procedures and time limits to initiate a 

higher-level review, supplemental 

claim, or appeal to the Board of 

Veterans’ Appeals. 

* * * * * 

(c) Submission of evidence—(1) 

General rule. VA will include in the 

record, any evidence whether 

documentary, testimonial, or in other 

form, submitted by the claimant in 

support of a pending claim and any 

issue, contention, or argument a 

claimant may offer with respect to a 

claim, except as prescribed in paragraph 

(c)(2) of this section and § 3.2601(f). 

(2) Treatment of evidence received 

after notice of a decision. The 

evidentiary record for a claim before the 

agency of original jurisdiction closes 

when VA issues notice of a decision on 

the claim. The agency of original 

jurisdiction will not consider, or take 

any other action on evidence that is 

submitted by a claimant, associated 

with the claims file, or constructively 

received by VA as described in 

paragraph (c)(2)(iii) of this section, after 

notice of decision on a claim, and such 

evidence will not be considered part of 

the record at the time of any decision by 

the agency of original jurisdiction, 

except as described in § 3.156(c) and 

under the following circumstances: 

(i) Receipt of a complete claim. The 

agency of original jurisdiction 

subsequently receives a complete 

application for a supplemental claim or 

initial claim; or 

(ii) Board and higher-level review 

returns. A claim is pending 

readjudication after identification of a 

duty to assist error (which includes an 

error resulting from constructive receipt 

of evidence prior to the notice of 

decision), during a higher-level review 

or appeal to the Board of Veterans’ 

Appeals. Those events reopen the 

record and any evidence previously 

submitted to the agency of original 

jurisdiction or associated with the 


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claims file while the record was closed 

will become part of the evidentiary 

record to be considered upon 

readjudication. 

(iii) Constructive receipt of VA 

treatment records. Records within the 

actual custody of the Veterans Health 

Administration are deemed 

constructively received by the Veterans 

Benefits Administration at the time 

when the Veterans Benefits 

Administration had knowledge of the 

existence of said records through 

information furnished by the claimant 

sufficient to locate those records (see 38 

U.S.C. 5103A(c)). 

(d) The right to a hearing. (1) Upon 

request, a claimant is entitled to a 

hearing on any issue involved in a claim 

within the purview of part 3 of this 

chapter before VA issues notice of a 

decision on an initial or supplemental 

claim. A hearing is not available in 

connection with a request for higherlevel review under § 3.2601. VA will 

provide the place of hearing in the VA 

field office having original jurisdiction 

over the claim, or at the VA office 

nearest the claimant’s home having 

adjudicative functions, or 

videoconference capabilities, or, subject 

to available resources and solely at the 

option of VA, at any other VA facility 

or federal building at which suitable 

hearing facilities are available. VA will 

provide one or more employees who 

have original determinative authority of 

such issues to conduct the hearing and 

be responsible for establishment and 

preservation of the hearing record. Upon 

request, a claimant is entitled to a 

hearing in connection with proposed 

adverse actions before one or more VA 

employees having original 

determinative authority who did not 

participate in the proposed action. All 

expenses incurred by the claimant in 

connection with the hearing are the 

responsibility of the claimant. 

(2) The purpose of a hearing is to 

permit the claimant to introduce into 

the record, in person, any available 

evidence which he or she considers 

relevant and any arguments or 

contentions with respect to the facts and 

applicable law which he or she may 

consider pertinent. All testimony will 

be under oath or affirmation. The 

claimant is entitled to produce 

witnesses, but the claimant and 

witnesses must be present. The agency 

of original jurisdiction will not normally 

schedule a hearing for the sole purpose 

of receiving argument from a 

representative. It is the responsibility of 

the VA employees conducting the 

hearings to explain fully the issues and 

suggest the submission of evidence 

which the claimant may have 

overlooked and which would be of 

advantage to the claimant’s position. To 

assure clarity and completeness of the 

hearing record, questions which are 

directed to the claimant and to 

witnesses are to be framed to explore 

fully the basis for claimed entitlement 

rather than with an intent to refute 

evidence or to discredit testimony. 

* * * * * 

(f) Notification of decisions. The 

claimant or beneficiary and his or her 

representative will be notified in writing 

of decisions affecting the payment of 

benefits or granting of relief. Written 

notification must include in the notice 

letter or enclosures or a combination 

thereof, all of the following elements: 

(1) Identification of the issues 

adjudicated; 

(2) A summary of the evidence 

considered; 

(3) A summary of the laws and 

regulations applicable to the claim; 

(4) A listing of any findings made by 

the adjudicator that are favorable to the 

claimant under § 3.104(c); 

(5) For denied claims, identification 

of the element(s) required to grant the 

claim(s) that were not met; 

(6) If applicable, identification of the 

criteria required to grant service 

connection or the next higher-level of 

compensation; 

(7) An explanation of how to obtain 

or access evidence used in making the 

decision; and 

(8) A summary of the applicable 

review options under § 3.2500 available 

for the claimant to seek further review 

of the decision. 

* * * * * 

■ 5. Amend § 3.104 as follows: 

■ a. Revise the section heading; 

■ b. Revise paragraph (a); 

■ c. Add a heading to paragraph (b); and 

■ d. Add paragraph (c). 

The revisions and additions read as 

follows: 

§ 3.104 Binding nature of decisions. 

(a) Binding decisions. A decision of a 

VA rating agency is binding on all VA 

field offices as to conclusions based on 

the evidence on file at the time VA 

issues written notification in accordance 

with 38 U.S.C. 5104. A binding agency 

decision is not subject to revision except 

by the Board of Veterans’ Appeals, by 

Federal court order, or as provided in 

§§ 3.105, 3.2500, and 3.2600. 

(b) Binding administrative 

determinations. * * * 

(c) Favorable findings. Any finding 

favorable to the claimant made by either 

a VA adjudicator, as described in 

§ 3.103(f)(4), or by the Board of 

Veterans’ Appeals, as described in 

§ 20.801(a) of this chapter, is binding on 

all subsequent agency of original 

jurisdiction and Board of Veterans’ 

Appeals adjudicators, unless rebutted 

by evidence that identifies a clear and 

unmistakable error in the favorable 

finding. For purposes of this section, a 

finding means a conclusion either on a 

question of fact or on an application of 

law to facts made by an adjudicator 

concerning the issue(s) under review. 

■ 6. Amend § 3.105 by revising 

paragraphs (a) and (b) and adding 

paragraph (j) to read as follows: 

§ 3.105 Revision of decisions. 

* * * * * 

(a)(1) Error in final decisions. 

Decisions are final when the underlying 

claim is finally adjudicated as provided 

in § 3.160(d). Final decisions will be 

accepted by VA as correct with respect 

to the evidentiary record and the law 

that existed at the time of the decision, 

in the absence of clear and unmistakable 

error. At any time after a decision is 

final, the claimant may request, or VA 

may initiate, review of the decision to 

determine if there was a clear and 

unmistakable error in the decision. 

Where evidence establishes such error, 

the prior decision will be reversed or 

amended. 

(i) Definition of clear and 

unmistakable error. A clear and 

unmistakable error is a very specific and 

rare kind of error. It is the kind of error, 

of fact or of law, that when called to the 

attention of later reviewers compels the 

conclusion, to which reasonable minds 

could not differ, that the result would 

have been manifestly different but for 

the error. If it is not absolutely clear that 

a different result would have ensued, 

the error complained of cannot be clear 

and unmistakable. Generally, either the 

correct facts, as they were known at the 

time, were not before VA, or the 

statutory and regulatory provisions 

extant at the time were incorrectly 

applied. 

(ii) Effective date of reversed or 

revised decisions. For the purpose of 

authorizing benefits, the rating or other 

adjudicative decision which constitutes 

a reversal or revision of a prior decision 

on the grounds of clear and 

unmistakable error has the same effect 

as if the corrected decision had been 

made on the date of the reversed 

decision. Except as provided in 

paragraphs (d) and (e) of this section, 

where an award is reduced or 

discontinued because of administrative 

error or error in judgment, the 

provisions of § 3.500(b)(2) will apply. 

(iii) Record to be reviewed. Review for 

clear and unmistakable error in a prior 

final decision of an agency of original 


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jurisdiction must be based on the 

evidentiary record and the law that 

existed when that decision was made. 

The duty to assist in § 3.159 does not 

apply to requests for revision based on 

clear and unmistakable error. 

(iv) Change in interpretation. Clear 

and unmistakable error does not include 

the otherwise correct application of a 

statute or regulation where, subsequent 

to the decision being challenged, there 

has been a change in the interpretation 

of the statute or regulation. 

(v) Limitation on Applicability. 

Decisions of an agency of original 

jurisdiction on issues that have been 

decided on appeal by the Board or a 

court of competent jurisdiction are not 

subject to revision under this 

subsection. 

(vi) Duty to assist not applicable. For 

examples of situations that are not clear 

and unmistakable error see 38 CFR 

20.1403(d). 

(vii) Filing Requirements—(A) 

General. A request for revision of a 

decision based on clear and 

unmistakable error must be in writing, 

and must be signed by the requesting 

party or that party’s authorized 

representative. The request must 

include the name of the claimant; the 

name of the requesting party if other 

than the claimant; the applicable 

Department of Veterans Affairs file 

number; and the date of the decision to 

which the request relates. If the 

applicable decision involved more than 

one issue, the request must identify the 

specific issue, or issues, to which the 

request pertains. 

(B) Specific allegations required. The 

request must set forth clearly and 

specifically the alleged clear and 

unmistakable error, or errors, of fact or 

law in the prior decision, the legal or 

factual basis for such allegations, and 

why the result would have been 

manifestly different but for the alleged 

error. Non-specific allegations of failure 

to follow regulations or failure to give 

due process, or any other general, nonspecific allegations of error, are 

insufficient to satisfy the requirement of 

the previous sentence. 

(2) Error in binding decisions prior to 

final adjudication. Prior to the time that 

a claim is finally adjudicated, previous 

decisions which are binding will be 

accepted as correct by the agency of 

original jurisdiction, with respect to the 

evidentiary record and law existing at 

the time of the decision, unless the 

decision is clearly erroneous, after 

considering whether any favorable 

findings may be reversed as provided in 

§ 3.104(c). 

(b) Difference of opinion. Whenever 

an adjudicative agency is of the opinion 

that a revision or an amendment of a 

previous decision is warranted on the 

basis of the evidentiary record and law 

that existed at the time of the decision, 

a difference of opinion being involved 

rather than a clear and unmistakable 

error, the proposed revision will be 

recommended to Central Office. 

However, a decision may be revised 

under § 3.2600 or § 3.2601 without 

being recommended to Central Office. 

* * * * * 

(j) Supplemental claims and higherlevel review. VA may revise an earlier 

decision denying benefits, if warranted, 

upon resolution of a supplemental claim 

under § 3.160(c) or higher-level review 

under § 3.2601. 

* * * * * 

§ 3.110 [Amended] 

■ 7. In § 3.110, amend paragraph (b) by 

removing ‘‘§§ 20.302 and 20.305’’ from 

the last sentence and adding in its place 

‘‘§§ 19.52, 20.203, and 20.110’’. 

§ 3.114 [Amended] 

■ 8. In § 3.110, remove the word 

‘‘reopened’’ and add in its place the 

word ‘‘supplemental’’ 

■ 9. Amend § 3.151 by revising 

paragraph (a) and adding paragraphs (c) 

and (d) to read as follows: 

§ 3.151 Claims for disability benefits. 

(a) General. A specific claim in the 

form prescribed by the Secretary must 

be filed in order for benefits to be paid 

to any individual under the laws 

administered by VA. (38 U.S.C. 5101(a)). 

A claim by a veteran for compensation 

may be considered to be a claim for 

pension; and a claim by a veteran for 

pension may be considered to be a claim 

for compensation. The greater benefit 

will be awarded, unless the claimant 

specifically elects the lesser benefit. 

(See scope of claim, § 3.155(d)(2); 

complete claim, § 3.160(a); 

supplemental claims, § 3.2501(b)). 

* * * * * 

(c) Issues within a claim. (1) To the 

extent that a complete claim application 

encompasses a request for more than 

one determination of entitlement, each 

specific entitlement will be adjudicated 

and is considered a separate issue for 

purposes of the review options 

prescribed in § 3.2500. A single decision 

by an agency of original jurisdiction 

may adjudicate multiple issues in this 

respect, whether expressly claimed or 

determined by VA to be reasonably 

within the scope of the application as 

prescribed in § 3.155(d)(2). VA will 

issue a decision that addresses each 

such identified issue within a claim. 

Upon receipt of notice of a decision, a 

claimant may elect any of the applicable 

review options prescribed in § 3.2500 

for each issue adjudicated. 

(2) With respect to service-connected 

disability compensation, an issue for 

purposes of paragraph (c)(1) of this 

section is defined as entitlement to 

compensation for a particular disability. 

For example, if a decision adjudicates 

service-connected disability 

compensation for both a knee condition 

and an ankle condition, compensation 

for each condition is a separate 

entitlement or issue for which a 

different review option may be elected. 

However, different review options may 

not be selected for specific components 

of the knee disability claim, such as 

ancillary benefits, whether a knee injury 

occurred in service, or whether a 

current knee condition resulted from a 

service-connected injury or condition. 

(d) Evidentiary record. The 

evidentiary record before the agency of 

original jurisdiction for an initial or 

supplemental claim includes all 

evidence received by VA before VA 

issues notice of a decision on the claim. 

Once the agency of original jurisdiction 

issues notice of a decision on a claim, 

the evidentiary record closes as 

described in § 3.103(c)(2) and VA no 

longer has a duty to assist in gathering 

evidence under § 3.159. (See § 3.155(b), 

submission of evidence). 

* * * * * 

■ 10. Amend § 3.155 by revising the 

second sentence of the introductory text 

and paragraph (d)(1) to read as follows: 

§ 3.155 How to file a claim. 

* * * The provisions of this section 

are applicable to all claims governed by 

part 3, with the exception that 

paragraph (b) of this section, regarding 

intent to file a claim, does not apply to 

supplemental claims. 

* * * * * 

(d) * * * 

(1) Requirement for complete claim 

and date of claim. A complete claim is 

required for all types of claims, and will 

generally be considered filed as of the 

date it was received by VA for an 

evaluation or award of benefits under 

the laws administered by the 

Department of Veterans Affairs. 

(i) Supplemental claims. Upon receipt 

of a communication indicating a belief 

in entitlement to benefits that is 

submitted in wiritng or electronically on 

a supplemental claim form prescribed 

by the Secretary that is not complete as 

defined in § 3.160(a) of this section, the 

Secretary shall notify the claimant and 

the claimant’s representative, if any, of 

the information necessary to complete 

the application form prescribed by the 


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Secretary. If VA receives a complete 

claim within 60 days of notice by VA 

that an incomplete claim was filed, it 

will be considered filed as of the date 

of receipt of the incomplete claim (see 

§ 3.2501). 

(ii) For other types of claims. If VA 

receives a complete claim within 1 year 

of the filing of an intent to file a claim 

that meets the requirements of 

paragraph (b) of this section, it will be 

considered filed as of the date of receipt 

of the intent to file a claim. Only one 

complete claim for a benefit (e.g., 

compensation, pension) may be 

associated with each intent to file a 

claim for that benefit, though multiple 

issues may be contained within a 

complete claim. In the event multiple 

complete claims for a benefit are filed 

within 1 year of an intent to file a claim 

for that benefit, only the first claim filed 

will be associated with the intent to file 

a claim. In the event that VA receives 

both an intent to file a claim and an 

incomplete application form before the 

complete claim as defined in § 3.160(a) 

is filed, the complete claim will be 

considered filed as of the date of receipt 

of whichever was filed first provided it 

is perfected within the necessary 

timeframe, but in no event, will the 

complete claim be considered filed 

more than one year prior to the date of 

receipt of the complete claim. 

* * * * * 

■ 11. Amend § 3.156 as follows: 

■ a. Revise the section heading; 

■ b. Add introductory text; 

■ c. Revise paragraph (a); 

■ d. Revise the paragraph (b) heading; 

and 

■ e. Add paragraph (d); 

The revisions and additions read as 

follows: 

§ 3.156 New evidence. 

(a) New and material evidence. For 

claims to reopen decided prior to the 

effective date provided in § 19.2(a), the 

following standards apply. A claimant 

may reopen a finally adjudicated legacy 

claim by submitting new and material 

evidence. New evidence means 

evidence not previously considered by 

agency adjudicators. Material evidence 

means existing evidence that, by itself 

or when considered with previous 

evidence of record, relates to an 

unestablished fact necessary to 

substantiate the claim. New and 

material evidence can be neither 

cumulative nor redundant of the 

evidence of record at the time of the last 

prior final denial of the claim sought to 

be reopened, and must raise a 

reasonable possibility of substantiating 

the claim. 

(Authority: 38 U.S.C. 501, 5103A(h), 5108) 

(b) Pending legacy claims not under 

the modernized review system. * * * 

* * * * * 

(d) New and relevant evidence. On or 

after the effective date provided in 

§ 19.2(a), a claimant may file a 

supplemental claim as prescribed in 

§ 3.2501. If new and relevant evidence, 

as defined in § 3.2501(a)(1), is presented 

or secured with respect to the 

supplemental claim, the agency of 

original jurisdiction will readjudicate 

the claim taking into consideration all of 

the evidence of record. 

* * * * * 

■ 12. Amend § 3.158 by revising the first 

sentence of paragraph (a) to read as 

follows: 

§ 3.158 Abandoned claims. 

(a) * * * Except as provided in 

§ 3.652, where evidence requested in 

connection with an initial claim or 

supplemental claim or for the purpose 

of determining continued entitlement is 

not furnished within 1 year after the 

date of request, the claim will be 

considered abandoned. * * * 

* * * * * 

■ 13. Amend § 3.159 as follows: 

■ a. Revise paragraph (a)(3); 

■ b. Revise the first and last sentence of 

paragraph (b)(1); 

■ c. Revise paragraph (b)(3); 

■ d. Add paragraph (b)(4); 

■ e. Revise paragraph (c) introductory 

text; 

■ f. Revise paragraph (c)(4)(iii); 

■ g. Add paragraph (c)(4)(iv); and 

■ h. In paragraph (d) introductory text, 

in the first sentence, remove the text 

‘‘for a claim’’ and add in its place ‘‘for 

an initial or supplemental claim’’. 

The revisions and additions read as 

follows: 

§ 3.159 Department of Veterans Affairs 

assistance in developing claims. 

(a) * * * 

(3) Substantially complete application 

means an application containing: 

(i) The claimant’s name; 

(ii) His or her relationship to the 

veteran, if applicable; 

(iii) Sufficient service information for 

VA to verify the claimed service, if 

applicable; 

(iv) The benefit sought and any 

medical condition(s) on which it is 

based; 

(v) The claimant’s signature; and 

(vi) In claims for nonserviceconnected disability or death pension 

and parents’ dependency and indemnity 

compensation, a statement of income; 

(vii) In supplemental claims, 

identification or inclusion of potentially 

new evidence (see § 3.2501); 

(viii) For higher-level reviews, 

identification of the date of the decision 

for which review is sought. 

* * * * * 

(b) * * * (1) Except as provided in 

paragraph (3) of this section, when VA 

receives a complete or substantially 

complete initial or supplemental claim, 

VA will notify the claimant of any 

information and medical or lay evidence 

that is necessary to substantiate the 

claim (hereafter in this paragraph 

referred to as the ‘‘notice’’) * * * If VA 

does so, however, and the claimant 

subsequently provides the information 

and evidence within one year of the 

date of the notice in accordance with 

the requirements of paragraph (b)(4) of 

this section, VA must readjudicate the 

claim. 

* * * * * 

(3) No duty to provide the notice 

described in paragraph (b)(1) of this 

section arises: 

(i) Upon receipt of a supplemental 

claim under § 3.2501 within one year of 

the date VA issues notice of a prior 

decision; 

(ii) Upon receipt of a request for 

higher-level review under § 3.2601; 

(iii) Upon receipt of a Notice of 

Disagreement under § 20.202 of this 

chapter; or 

(iv) When, as a matter of law, 

entitlement to the benefit claimed 

cannot be established. 

(4) After VA has issued a notice of 

decision, submission of information and 

evidence substantiating a claim must be 

accomplished through the proper filing 

of a review option in accordance with 

§ 3.2500 on a form prescribed by the 

Secretary. New and relevant evidence 

may be submitted in connection with 

either the filing of a supplemental claim 

under § 3.2501 or the filing of a Notice 

of Disagreement with the Board under 

38 CFR 20.202, on forms prescribed by 

the Secretary, and election of a Board 

docket that permits the filing of new 

evidence (see 38 CFR 20.302 and 

20.303). 

(c) VA’s duty to assist claimants in 

obtaining evidence. VA has a duty to 

assist claimants in obtaining evidence to 

substantiate all substantially complete 

initial and supplemental claims, and 

when a claim is returned for 

readjudication by a higher-level 

adjudicator or the Board after 

identification of a duty to assist error on 

the part of the agency of original 

jurisdiction, until the time VA issues 

notice of a decision on a claim or 

returned claim. VA will make 

reasonable efforts to help a claimant 

obtain evidence necessary to 

substantiate the claim. VA will not pay 


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any fees charged by a custodian to 

provide records requested. When a 

claim is returned for readjudication by 

a higher-level adjudicator or the Board 

after identification of a duty to assist 

error, the agency of original jurisdiction 

has a duty to correct any other duty to 

assist errors not identified by the higherlevel adjudicator or the Board. 

* * * * * 

(4) * * * 

(iii) For requests to reopen a finally 

adjudicated claim received prior to the 

effective date provided in § 19.2(a) of 

this chapter, this paragraph (c)(4) 

applies only if new and material 

evidence is presented or secured as 

prescribed in § 3.156. 

(iv) This paragraph (c)(4) applies to a 

supplemental claim only if new and 

relevant evidence under § 3.2501 is 

presented or secured. 

* * * * * 

■ 14. Amend § 3.160 by revising 

paragraphs (a), (d), and (e) and removing 

paragraph (f). 

The revisions read as follows: 

§ 3.160 Status of claims. 

(a) Complete claim. A submission of 

an application form prescribed by the 

Secretary, whether paper or electronic, 

that meets the following requirements: 

(1) A complete claim must provide 

the name of the claimant; the 

relationship to the veteran, if applicable; 

and sufficient information for VA to 

verify the claimed service, if applicable. 

(2) A complete claim must be signed 

by the claimant or a person legally 

authorized to sign for the claimant. 

(3) A complete claim must identify 

the benefit sought. 

(4) A description of any symptom(s) 

or medical condition(s) on which the 

benefit is based must be provided to the 

extent the form prescribed by the 

Secretary so requires. 

(5) For nonservice-connected 

disability or death pension and parents’ 

dependency and indemnity 

compensation claims, a statement of 

income must be provided to the extent 

the form prescribed by the Secretary so 

requires; and 

(6) For supplemental claims, 

potentially new evidence must be 

identified or included. 

* * * * * 

(d) Finally adjudicated claim. A claim 

that is adjudicated by the Department of 

Veterans Affairs as either allowed or 

disallowed is considered finally 

adjudicated when: 

(1) For legacy claims not subject to the 

modernized review system, whichever 

of the following occurs first: 

(i) The expiration of the period in 

which to file a Notice of Disagreement, 

pursuant to the provisions of § 19.52(a) 

or § 20.502(a) of this chapter, as 

applicable; or 

(ii) Disposition on appellate review. 

(2) For claims under the modernized 

review system, the expiration of the 

period in which to file a review option 

available under § 3.2500 or disposition 

on judicial review where no such 

review option is available. 

(e) Reopened claims prior to effective 

date of modernized review system. An 

application for a benefit received prior 

to the effective date provided in 

§ 19.2(a) of this chapter, after final 

disallowance of an earlier claim that is 

subject to readjudication on the merits 

based on receipt of new and material 

evidence related to the finally 

adjudicated claim, or any claim based 

on additional evidence or a request for 

a personal hearing submitted more than 

90 days following notification to the 

appellant of the certification of an 

appeal and transfer of applicable 

records to the Board of Veterans’ 

Appeals which was not considered by 

the Board in its decision and was 

referred to the agency of original 

jurisdiction for consideration as 

provided in § 20.1304(b)(1) of this 

chapter. As of the effective date 

provided in § 19.2(a) of this chapter, 

claimants may no longer file to reopen 

a claim, but may file a supplemental 

claim as prescribed in § 3.2501 to apply 

for a previously disallowed benefit. A 

request to reopen a finally decided 

claim that has not been adjudicated as 

of the effective date will be processed as 

a supplemental claim subject to the 

modernized review system. 

(Authority: 38 U.S.C. 501, 5108) 

§ 3.161 [Removed and Reserved] 

■ 15. Remove and reserve § 3.161. 

§ 3.321 [Amended] 

■ 16. In § 3.321, remove the word 

‘‘reopened’’ and add in its place the 

word ‘‘supplemental’’. 

§ 3.326 [Amended] 

■ 17. In § 3.326, remove the word 

‘‘reopened’’ and add in its place the 

word ‘‘supplemental’’ 

■ 18. Amend § 3.328 in paragraph (b), in 

the first sentence, by removing the text 

‘‘at the regional office level’’ and add in 

its place ‘‘before VA’’ and by revising 

paragraph (c). 

The revision reads as follows: 

§ 3.328 lndependent medical opinions. 

* * * * * 

(c) Approval. (1) Requests for 

independent medical opinions shall be 

approved when one of the following 

conditions is met: 

(i) The director of each Service from 

which a benefit is sought, or his or her 

designee, determines that the issue 

under consideration poses a medical 

problem of such complexity or 

controversy as to justify solicitation of 

an independent medical opinion; or 

(ii) The independent medical opinion 

is required to fulfill the instructions 

contained in a remand order from the 

Board of Veterans’ Appeals. 

(2) A determination that an 

independent medical opinion is not 

warranted may be contested only as part 

of an appeal to the Board of Veterans’ 

Appeals on the merits of the decision 

rendered on the primary issue by VA. 

(Authority: 38 U.S.C. 5109, 5701(b)(1); 

5 U.S.C. 552a(f)(3)) 

* * * * * 

§ 3.372 [Amended] 

■ 19. In § 3.372, remove the word 

‘‘reopened’’ and add in its place the 

word ‘‘supplemental’’. 

■ 20. Amend § 3.400 by revising the 

introductory text and paragraphs (h)(1) 

through (3) and (z)(2) and adding 

paragraph (z)(3) to read as follows: 

§ 3.400 General. 

Except as otherwise provided, the 

effective date of an evaluation and 

award of pension, compensation, or 

dependency and indemnity 

compensation based on an initial claim 

or supplemental claim will be the date 

of receipt of the claim or the date 

entitlement arose, whichever is later. 

For effective date provisions regarding 

revision of a decision based on a 

supplemental claim or higher-level 

review, see § 3.2500. 

* * * * * 

(h) Difference of opinion (§ 3.105). (1) 

As to decisions not finally adjudicated 

(see § 3.160(d)) prior to timely receipt of 

an application for higher-level review, 

or prior to readjudication on VA 

initiative, the date from which benefits 

would have been payable if the former 

decision had been favorable. 

(2) As to decisions which have been 

finally adjudicated (see § 3.160(d)), and 

notwithstanding other provisions of this 

section, the date entitlement arose, but 

not earlier than the date of receipt of the 

supplemental claim. 

(3) As to decisions which have been 

finally adjudicated (see 3.160(d)) and 

readjudication is undertaken solely on 

VA initiative, the date of Central Office 

approval authorizing a favorable 

decision or the date of the favorable 

Board of Veterans’ Appeals decision. 

* * * * * 

(z) * * * 


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(2) Reopened claims received prior to 

the effective date provided in § 19.2(a) 

of this chapter: Latest of the following 

dates: 

(i) November 23, 1977. 

(ii) Date entitlement arose. 

(iii) One year prior to date of receipt 

of reopened claim. 

(3) Supplemental claims received 

more than one year after notice of 

decision: Latest of the following dates: 

(i) Date entitlement arose. 

(ii) One year prior to date of receipt 

of a supplemental claim. 

* * * * * 

§ 3.401 [Amended] 

■ 21. In § 3.401, remove the word 

‘‘reopened’’ and add in its place the 

word ‘‘supplemental’’. 

§ 3.402 [Amended] 

■ 22. In § 3.402, remove the word 

‘‘reopened’’ and add in its place the 

word ‘‘supplemental’’. 

§ 3.404 [Amended] 

■ 23a. In § 3.404, remove the word 

‘‘reopened’’ and add in its place the 

word ‘‘supplemental’’. 

§ 3.655 [Amended] 

■ 23b. In § 3.655, remove the word 

‘‘reopened’’ and add in its place the 

word ‘‘supplemental’’. 

§ 3.814 [Amended] 

■ 24. Amend § 3.814 in paragraph (e) 

introductory text by removing the words 

‘‘original claim, a claim reopened after 

final disallowance, or a claim for 

increase’’ and adding in their place the 

words ‘‘initial claim or supplemental 

claim’’. 

§ 3.815 [Amended] 

■ 25. Amend § 3.815 in paragraph (i) 

introductory text by removing the words 

‘‘original claim, a claim reopened after 

final disallowance, or a claim for 

increase,’’ and adding in their place the 

words ‘‘initial claim or supplemental 

claim’’. 

Subpart D—Universal Adjudication 

Rules That Apply to Benefit Claims 

Governed by Part 3 of This Title 

■ 26. The authority citation for part 3, 

subpart D continues to read as follows: 

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

otherwise noted. 

■ 27. Add § 3.2400 to read as follows: 

§ 3.2400 Applicability of modernized 

review system. 

(a) Applicability. The modernized 

review system defined in 38 CFR 19.2(b) 

applies to all claims, requests for 

reopening of finally adjudicated claims, 

and requests for revision based on clear 

and unmistakable error: 

(1) For which VA issues notice of an 

initial decision on or after the effective 

date of the modernized review system as 

provided in 38 CFR 19.2(a); or 

(2) Where a claimant has elected 

review of a legacy claim under the 

modernized review system as provided 

in paragraph (c) of this section. 

(b) Legacy claims. A legacy claim is a 

claim, or request for reopening or 

revision of a finally adjudicated claim, 

for which VA provided notice of a 

decision prior to the effective date of the 

modernized review system and the 

claimant has not elected to participate 

in the modernized review system as 

provided in paragraph (c) of this 

section. 

(c) Election into the modernized 

review system. For claims governed by 

this part, pursuant to election by a 

claimant, the modernized review system 

applies where: 

(1) Rapid appeals modernization 

program election. A claimant with a 

legacy appeal elects to opt-in to the 

modernized review system on or after 

November 1, 2017, as part of a program 

authorized by the Secretary pursuant to 

section 4 of Public Law 115–55; or 

(2) Election after receiving a statement 

of the case. A claimant with a legacy 

appeal elects to opt-in to the 

modernized review system, following 

issuance, on or after the effective date of 

the modernized system, of a VA 

Statement of the Case or Supplemental 

Statement of the Case, by filing for a 

review option under the new system in 

accordance with § 3.2500 on a form 

prescribed by the Secretary within the 

time allowed for filing a substantive 

appeal under 38 CFR 19.52(b) and other 

applicable provisions in part 19 of this 

chapter. 

(d) Effect of election. Once an eligible 

claimant elects the modernized review 

system with respect to a particular 

claim, the provisions of 38 CFR parts 3, 

19, and 20 applicable to legacy claims 

and appeals no longer apply to that 

claim. 

■ 28. Add § 3.2500 to read as follows: 

§ 3.2500 Review of decisions. 

(a) Reviews available. (1) Within one 

year from the date on which the agency 

of original jurisdiction issues a notice of 

a decision on a claim or issue as defined 

in § 3.151(c), except as otherwise 

provided in paragraphs (c), (e), and (f) 

of this section, a claimant may elect one 

of the following administrative review 

options by timely filing the appropriate 

form prescribed by the Secretary: 

(i) A request for higher-level review 

under § 3.2601 or 

(ii) An appeal to the Board under 

§ 20.202 of this chapter. 

(2) At any time after VA issues notice 

of a decision on an issue within a claim, 

a claimant may file a supplemental 

claim under § 3.2501. 

(b) Concurrent election prohibited. 

With regard to the adjudication of a 

claim or an issue as defined in 

§ 3.151(c), a claimant who has filed for 

review under one of the options 

available under paragraph (a) of this 

section may not, while that review is 

pending final adjudication, file for 

review under a different available 

option While the adjudication of a 

specific benefit is pending on appeal 

before a federal court, a claimant may 

not file for administrative review of the 

claim under any of options listed in 

paragraph (a) of this section. 

(c) Continuously pursued issues. A 

claimant may continuously pursue a 

claim or an issue by timely and properly 

filing one of the following 

administrative review options, as 

specified (except as otherwise provided 

in paragraphs (c), (e), and (f) of this 

section), after any decision by the 

agency of original jurisdiction, Board of 

Veterans’ Appeals, or entry of judgment 

by the U.S. Court of Appeals for 

Veterans Claims, provided that any 

appeal to the U.S. Court of Appeals for 

Veterans Claims is timely filed as 

determined by the court: 

(1) Following notice of a decision on 

an initial claim or a supplemental claim, 

the claimant may file a supplemental 

claim, request a higher-level review, or 

appeal to the Board of Veterans’ 

Appeals. 

(2) Following notice of a decision on 

a higher-level review, the claimant may 

file a supplemental claim or appeal to 

the Board of Veterans’ Appeals. (See 

appeal to the Board, 38 CFR 20.202). 

(3) Following notice of a decision on 

an appeal to the Board of Veterans’ 

Appeals, the claimant may file a 

supplemental claim or file a notice of 

appeal to the Court of Appeals for 

Veterans Claims. 

(4) Following a decision on an appeal 

to the Court of Appeals for Veterans 

Claims, the claimant may file a 

supplemental claim. 

(d) Voluntary withdrawal. A claimant 

may withdraw a supplemental claim or 

a request for a higher-level review at any 

time before VA renders a decision on 

the issue. A claimant must submit in 

writing or through electronic 

submission in a manner prescribed by 

the Secretary any notice of withdrawal 

of an issue under the selected review 

option to the agency of original 


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jurisdiction. The withdrawal will be 

effective the date VA receives it. A 

claimant may withdraw an appeal to the 

Board of Veteran’s Appeals as 

prescribed in § 20.205. 

(e) Changing review options while a 

review is pending adjudication—(1) 

Within one year of prior decision notice. 

A claimant may change the review 

option selected by withdrawing the 

request as prescribed in § 3.2500(d) and 

filing the appropriate application for the 

requested review option within one year 

from the date on which VA issued 

notice of a decision on an issue. 

(2) More than one year after notice of 

a decision. A claimant may change the 

review option selected to a 

supplemental claim after expiration of 

one-year following the date on which 

VA issued a notice of decision on an 

issue by following the procedure 

specified in paragraph (e)(1) of this 

section. Where VA receives the 

supplemental claim application after 

expiration of the one-year period, 

continuous pursuit of the claim will be 

broken and VA will apply the effective 

date provisions under paragraph (h)(2) 

of this section, unless VA grants an 

extension of the one-year period for 

good cause shown under § 3.109(b) and 

the supplemental claim application is 

received within the extension period 

allowed. 

(f) Applicability. This section applies 

to claims and requests under the 

modernized review system as set forth 

in § 3.2400, with the exception that a 

supplemental claim may not be filed in 

connection with a denial of a request to 

revise a final decision of the agency of 

original jurisdiction based on clear and 

unmistakable error. 

(g) Review of simultaneously 

contested claims. Notwithstanding other 

provisions of this part, a party to a 

simultaneously contested claim may 

only seek administrative review of a 

decision by the agency of original 

jurisdiction on such claim by filing an 

appeal to the Board as prescribed in 

§ 20.402 of this chapter within 60 days 

of the date VA issues notice of the 

decision on the claim. (See contested 

claims, 38 CFR 20.402). 

(h) Effective dates—(1) Continuously 

pursued claims. Except as otherwise 

provided by other provisions of this 

part, including § 3.400, the effective 

date will be fixed in accordance with 

the date of receipt of the initial claim or 

date entitlement arose, whichever is 

later, if a claimant continuously pursues 

an issue by timely filing in succession 

any of the available review options as 

specified in paragraph (c) of this section 

within one year of the issuance of the 

decision (or the time period specified in 

paragraph (f) of this section, as 

applicable to simultaneously contested 

claims), provided that any appeal to the 

U.S. Court of Appeals for Veterans 

Claims must be accepted as timely by 

that court. 

(2) Supplemental claims received 

more than one year after notice of 

decision. Except as otherwise provided 

in this section, for supplemental claims 

received more than one year after the 

date on which the agency of original 

jurisdiction issues notice of a decision 

or the Board of Veterans’ Appeals issued 

notice of a decision, the effective date 

will be fixed in accordance with the 

date entitlement arose, but will not be 

earlier than the date of receipt of the 

supplemental claim. 

■ 29. Add § 3.2501 to read as follows: 

§ 3.2501 Supplemental claims. 

Except as otherwise provided, a 

claimant or his or her authorized 

representative, if any, who disagrees 

with a prior VA decision may file a 

supplemental claim (see § 3.1(p)(2)) by 

submitting in writing or electronically a 

complete application (see § 3.160(a)) on 

a form prescribed by the Secretary any 

time after the agency of original 

jurisdiction issues notice of a decision, 

regardless of whether the claim is 

pending (see § 3.160(c)) or has become 

finally adjudicated (see § 3.160(d)). If 

new and relevant evidence is presented 

or secured with respect to the 

supplemental claim, the agency of 

original jurisdiction will readjudicate 

the claim taking into consideration all of 

the evidence of record. If new and 

relevant evidence is not presented or 

secured, the agency of original 

jurisdiction will issue a decision finding 

that there was insufficient evidence to 

readjudicate the claim. In determining 

whether new and relevant evidence is 

presented or secured, VA will consider 

any VA treatment records reasonably 

identified by the claimant and any 

evidence received by VA after VA 

issued notice of a decision on the claim 

and while the evidentiary record was 

closed (see 3.103(c)). 

(a) New and relevant evidence. The 

new and relevant standard will not 

impose a higher evidentiary threshold 

than the previous new and material 

evidence standard under § 3.156(a). 

(1) Definition. New evidence is 

evidence not previously part of the 

actual record before agency 

adjudicators. Relevant evidence is 

information that tends to prove or 

disprove a matter at issue in a claim. 

Relevant evidence includes evidence 

that raises a theory of entitlement that 

was not previously addressed. 

(2) Receipt prior to notice of a 

decision. New and relevant evidence 

received before VA issues its decision 

on a supplemental claim will be 

considered as having been filed in 

connection with the claim. 

(b) Evidentiary record. The 

evidentiary record for a supplemental 

claim includes all evidence received by 

VA before VA issues notice of a decision 

on the supplemental claim. For VA to 

readjudicate the claim, the evidentiary 

record must include new and relevant 

evidence that was not of record as of the 

date of notice of the prior decision. 

(c) Duty to assist. Upon receipt of a 

substantially complete supplemental 

claim, VA’s duty to assist in the 

gathering of evidence under § 3.159 of 

this part is triggered and includes any 

such assistance that may help secure 

new and relevant evidence as defined in 

paragraph (a) of this section to complete 

the supplemental claim application. 

(d) Date of filing. The filing date of a 

supplemental claim is determined 

according to § 3.155, with the exception 

of the intent to file rule found in 

§ 3.155(b) which applies to initial 

claims. 

(Authority: 38 U.S.C. 501, 5103A(h), 5108) 

■ 30. Add § 3.2502 to read as follows: 

§ 3.2502 Return by higher-level adjudicator 

or remand by the Board of Veterans’ 

Appeals. 

Upon receipt of a returned claim from 

a higher-level adjudicator or remand by 

the Board of Veterans’ Appeals, the 

agency of original jurisdiction will 

expeditiously readjudicate the claim in 

accordance with 38 U.S.C. 5109B. The 

agency of original jurisdiction retains 

jurisdiction of the claim. In 

readjudicating the claim, the agency of 

original jurisidction will correct all 

identified duty to assist errors, complete 

a new decision and issue notice to the 

claimant and or his or her legal 

representative in accordance with 

3.103(f). The effective date of any 

evaluation and award of pension, 

compensation or dependency and 

indemnity compensation will be 

determined in accordance with the date 

of receipt of the initial claim as 

prescribed under § 3.2500(g). 

■ 31. Amend § 3.2600 by revising the 

section heading, adding introductory 

text, and removing paragraph (g). 

The revisions and additions read as 

follows: 

§ 3.2600 Legacy review of benefit claims 

decisions. 

This section applies only to legacy 

claims as defined in § 3.2400 in which 

a Notice of Disagreement is timely filed 


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on or after June 1, 2001, under 

regulations applicable at the time of 

filing. 

* * * * * 

■ 32. Add § 3.2601 to read as follows: 

§ 3.2601 Higher-level review. 

(a) Applicability. This section applies 

to all claims under the modernized 

review system, with the exception of 

simultaneously contested claims. 

(b) Requirements for election. A 

claimant who is dissatisfied with a 

decision by the agency of original 

jurisdiction may file a request for 

higher-level review in accordance with 

§ 3.2500, by submitting a complete 

request for review on a form prescribed 

by the Secretary. 

(c) Complete request. A complete 

request for higher-level review is a 

submission of a request on a form 

prescribed by the Secretary, whether 

paper or electronic, that meets the 

following requirements: 

(1) A complete request must provide 

the name of the claimant and the 

relationship to the veteran, if applicable; 

(2) A complete request must be signed 

by the claimant or a person legally 

authorized to sign for the claimant; and 

(3) A complete request must specify 

the date of the underlying decision for 

which review is requested and specify 

the issues for which review is requested. 

(d) Filing period. A complete request 

for higher-level review must be received 

by VA within one year of the date of 

VA’s issuance of the notice of the 

decision. If VA receives an incomplete 

request form, VA will notify the 

claimant and the claimant’s 

representative, if any, of the information 

necessary to complete the request form 

prescribed by the Secretary. If a 

complete request is submitted within 60 

days of the date of the VA notification 

of such incomplete request or prior to 

the expiration of the one-year filing 

period, VA will consider it filed as of 

the date VA received the incomplete 

application form that did not meet the 

standards of a complete request. 

(e) Who may conduct a higher-level 

review. Higher-level review will be 

conducted by an experienced 

adjudicator who did not participate in 

the prior decision. Selection of a higherlevel adjudicator to conduct a higherlevel review is at VA’s discretion. As a 

general rule, an adjudicator in an office 

other than the office that rendered the 

prior decision will conduct the higherlevel review. An exception to this rule 

applies for claims requiring specialized 

processing, such as where there is only 

one office that handles adjudication of 

a particular type of entitlement. A 

claimant may request that the office that 

rendered the prior decision conduct the 

higher-level review, and VA will grant 

the request in the absence of good cause 

to deny such as when processing is 

centralized at one office within the 

agency of original jurisdiction or when 

the office that rendered the prior 

decision does not have higher-level 

review personnel available to conduct 

the review. 

(f) Evidentiary record. The evidentiary 

record in a higher-level review is 

limited to the evidence of record as of 

the date the agency of original 

jurisdiction issued notice of the prior 

decision under review and the higherlevel adjudicator may not consider 

additional evidence. The higher-level 

adjudicator may not order development 

of additional evidence that may be 

relevant to the claim under review, 

except as provided in paragraph (g) of 

this section. 

(g) Duty to assist errors. The higherlevel adjudicator will ensure that VA 

complied with its statutory duty to 

assist (see § 3.159) in gathering evidence 

applicable prior to issuance of the 

decision being reviewed. If the higherlevel adjudicator both identifies a duty 

to assist error that existed at the time of 

VA’s decision on the claim under 

review and cannot grant the maximum 

benefit for the claim, the higher-level 

adjudicator must return the claim for 

correction of the error and 

readjudication. Upon receipt, the agency 

of jurisdiction will expeditiously 

readjudicate the claim in accordance 

with 38 U.S.C. 5109B. 

(1) For disability evaluations, the 

maximum benefit means the highest 

schedular evaluation allowed by law 

and regulation for the issue under 

review. 

(2) For ancillary benefits, the 

maximum benefit means the granting of 

the benefit sought. 

(3) For pension benefits or 

dependents indemnity compensation, 

the maximum benefit means granting 

the highest benefit payable. 

(h) Informal conferences. A claimant 

or his or her representative may include 

a request for an informal conference 

with a request for higher-level review. 

For purposes of this section, informal 

conference means contact with a 

claimant’s representative or, if not 

represented, with the claimant, 

telephonically, or as otherwise 

determined by VA, for the sole purpose 

of allowing the claimant or 

representative to identify any errors of 

law or fact in a prior decision based on 

the record at the time the decision was 

issued. If requested, VA will make 

reasonable efforts to contact the 

claimant and/or the authorized 

representative to conduct one informal 

conference during a higher-level review, 

but if such reasonable efforts are not 

successful, a decision may be issued in 

the absence of an informal conference. 

The higher-level adjudicator with 

determinative authority over the issue 

will conduct the informal conference, 

absent exceptional circumstances. VA 

will not receive any new evidence or 

introduction of facts not present at the 

time of the prior decision or apart of the 

evidentiary record in support of the 

higher-level review during the informal 

conference in accordance with 

paragraph (d) of this section. Any 

expenses incurred by the claimant in 

connection with the informal 

conference are the responsibility of the 

claimant. 

(i) De novo review. The higher-level 

adjudicator will consider only those 

decisions and claims for which the 

claimant has requested higher-level 

review, and will conduct a de novo 

review giving no deference to the prior 

decision, except as provided in 

§ 3.104(c). 

(j) Difference of opinion. The higherlevel adjudicator may grant a benefit 

sought in the claim under review based 

on a difference of opinion (see 

§ 3.105(b)). However, any finding 

favorable to the claimant is binding 

except as provided in § 3.104(c) of this 

part. In addition, the higher-level 

adjudicator will not revise the outcome 

in a manner that is less advantageous to 

the claimant based solely on a 

difference of opinion. The higher-level 

adjudicator may reverse or revise (even 

if disadvantageous to the claimant) prior 

decisions by VA (including the decision 

being reviewed or any prior decision) on 

the grounds of clear and unmistakable 

error under § 3.105(a)(1) or (a)(2), as 

applicable, depending on whether the 

prior decision is finally adjudicated. 

(k) Notice requirements. Notice of a 

decision made under this section will 

include all of the elements described in 

§ 3.103(f), a general statement indicating 

whether evidence submitted while the 

record was closed was not considered, 

and notice of the options available to 

have such evidence considered. 

(Authority: 38 U.S.C. 5109A and 7105(d)) 

PART 8—NATIONAL SERVICE LIFE 

INSURANCE 

■ 33. The authority citation for part 8 

continues to read as follows: 

Authority: 38 U.S.C. 501, 1901–1929, 

1981–1988, unless otherwise noted. 

■ 34. Revise § 8.30 to read as follows: 


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§ 8.30 Review of Decisions and Appeal to 

Board of Veterans’ Appeals. 

(a) Decisions. This section pertains to 

insurance decisions involving questions 

arising under parts 6, 7, 8, and 8a of this 

chapter, to include the denial of 

applications for insurance, total 

disability income provision, or 

reinstatement; disallowance of claims 

for insurance benefits; and decisions 

holding fraud or imposing forfeiture. 

The applicant or claimant and his or her 

representative, if any, will be notified in 

writing of such a decision, which must 

include, in the notice letter or 

enclosures or a combination thereof, all 

of the following elements: 

(1) Identification of the issues 

adjudicated. 

(2) A summary of the evidence 

considered. 

(3) A summary of the applicable laws 

and regulations relevant to the decision. 

(4) Identification of findings that are 

favorable to the claimant. 

(5) For denials, identification of the 

element(s) not satisfied that led to the 

denial. 

(6) An explanation of how to obtain 

or access the evidence used in making 

the decision. 

(7) A summary of the applicable 

review options available for the 

claimant to seek further review of the 

decision. 

(b) Favorable findings. Any finding 

favorable to the claimant or applicant is 

binding on all subsequent agency of 

original jurisdiction and Board of 

Veterans’ Appeals adjudicators, unless 

rebutted by evidence that identifies a 

clear and unmistakable error in the 

favorable finding. 

(c) Review of decisions. Within one 

year from the date on which the agency 

of original jurisdiction issues notice of 

an insurance decision as outlined in 

paragraph (a) of this section, applicants 

or claimants may elect one of the 

following administrative review options 

by timely filing the appropriate form 

prescribed by the Secretary: 

(1) Supplemental claim review. The 

nature of this review will accord with 

§ 3.2501 of this title to the extent the 

terms used therein apply to insurance 

matters. 

(2) Request for a higher-level review. 

The nature of this review will accord 

with § 3.2601 of this title to the extent 

the terms used therein apply to 

insurance matters. Higher-level reviews 

will be conducted by an experienced 

adjudicator who did not participate in 

the prior decision. Selection of a higherlevel adjudicator to conduct a higherlevel review is at VA’s discretion. 

(3) Appeal to Board of Veterans’ 

Appeals. See 38 CFR part 20. 

(d) Part 3 provisions. See § 3.2500(b) 

through (d) of this chapter for principles 

that generally apply to a veteran’s 

election of review of an insurance 

decision. 

(e) Applicability. This section applies 

where notice of an insurance decision 

was provided to an applicant or 

claimant on or after the effective date of 

the modernized review system as 

provided in § 19.2(a) of this chapter, or 

where an applicant or claimant has 

elected review of a legacy claim under 

the modernized review system as 

provided in § 3.2400(c) of this title. 

(f) Unpaid premiums. When a 

claimant or applicant elects a review 

option under paragraph (c) of this 

section, any unpaid premiums, 

normally due under the policy from 

effective date of issue or reinstatement 

(as appropriate), will become an 

interest-bearing lien, enforceable as a 

legal debt due the United States and 

subject to all available collection 

procedures in the event of a favorable 

result for the claimant or applicant. 

(g) Premium payments. Despite a 

claimant’s or applicant’s election of a 

review option under paragraph (c) of 

this section, where the agency of 

original jurisdiction’s decision involved 

a change in or addition to insurance 

currently in force, premium payments 

must be continued on the existing 

contract. 

(h) Section 1984. Nothing in this 

section shall limit an applicant’s or 

claimant’s right to pursue actions under 

38 U.S.C. 1984. 

(Authority: 38 U.S.C. 501, 1901–1929, 1981– 

1988) 

PART 14—LEGAL SERVICES, 

GENERAL COUNSEL, AND 

MISCELLANEOUS CLAIMS 

■ 35. The authority citation for part 14 

continues to read as follows: 

Authority: 5 U.S.C. 301; 28 U.S.C. 2671– 

2680; 38 U.S.C. 501(a), 512, 515, 5502, 5901– 

5905; 28 CFR part 14, appendix to part 14, 

unless otherwise noted. 

■ 36. Amend § 14.629: 

■ a. By removing the introductory text; 

■ b. In paragraph (b)(5), by removing the 

words ‘‘General Counsel or his or her 

designee’’ and adding in their place the 

words ‘‘Chief Counsel with subjectmatter jurisdiction’’; and 

■ c. Adding paragraph (d). 

The additions reads as follows: 

§ 14.629 Requirements for accreditation of 

service organization representatives; 

agents; and attorneys. 

* * * * * 

(d) Decisions on applications for 

accreditation. The Chief Counsel with 

subject-matter jurisdiction will conduct 

an inquiry and make an initial 

determination regarding any question 

relating to the qualifications of a 

prospective service organization 

representative, agent, or attorney. 

(1) If the Chief Counsel determines 

that the prospective service organization 

representative, agent, or attorney meets 

the requirements for accreditation in 

paragraph (a) or (b) of this section, 

notification of accreditation will be 

issued by the Chief Counsel and will 

constitute authority to prepare, present, 

and prosecute claims before an agency 

of original jurisdiction or the Board of 

Veterans’ Appeals. 

(2)(i) If the Chief Counsel determines 

that the prospective representative, 

agent, or attorney does not meet the 

requirements for accreditation, 

notification will be issued by the Chief 

Counsel concerning the reasons for 

disapproval, an opportunity to submit 

additional information, and any 

restrictions on further application for 

accreditation. If an applicant submits 

additional evidence, the Chief Counsel 

will consider such evidence and 

provide further notice concerning his or 

her final decision. 

(ii) The determination of the Chief 

Counsel regarding the qualifications of a 

prospective service organization 

representative, agent, or attorney is a 

final adjudicative determination of an 

agency of original jurisdiction that may 

only be appealed to the Board of 

Veterans’ Appeals. 

* * * * * 

■ 37. In § 14.631, in paragraph (c), 

revise the second sentence to read as 

follows: 

§ 14.631 Powers of attorney; disclosure of 

claimant information. 

* * * * * 

(c) * * * This section is applicable 

unless 38 CFR 20.6 governs withdrawal 

from the representation. * * * 

* * * * * 

§ 14.632 [Amended] 

■ 38. In § 14.632, in paragraph (c)(6), 

remove the words ‘‘representation 

provided before an agency of original 

jurisdiction has issued a decision on a 

claim or claims and a Notice of 

Disagreement has been filed with 

respect to that decision’’ and add in 

their place the words ‘‘services for 

which a fee could not lawfully be 

charged’’. 

■ 39. Amend § 14.633: 

■ a. In paragraph (e)(2)(i), by adding the 

words ‘‘before the Office of the General 

Counsel’’ after the words ‘‘close the 

record’’ in the last sentence; 


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■ b. In paragraph (e)(2)(ii), by adding the 

words ‘‘before the Office of the General 

Counsel’’ after the words ‘‘close the 

record’’; 

■ c. By revising paragraph (h); 

■ d. In paragraph (i), by adding the 

words ‘‘suspended or’’ before the word 

‘‘cancelled’’; and 

■ e. By adding paragraph (j). 

The revision and addition read as 

follows: 

§ 14.633 Termination of accreditation or 

authority to provide representation under 

§ 14.630. 

* * * * * 

(h) The decision of the General 

Counsel is a final adjudicative 

determination of an agency of original 

jurisdiction that may only be appealed 

to the Board of Veterans’ Appeals. 

(1) Decisions issued before the 

effective date of the modernized review 

system. Notwithstanding provisions in 

this section for closing the record before 

the Office of the General Counsel at the 

end of the 30-day period for filing an 

answer or 10 days after a hearing, 

appeals of decisions issued before the 

effective date of the modernized review 

system as provided in § 19.2(a) of this 

chapter shall be initiated and processed 

using the procedures in 38 CFR parts 19 

and 20 applicable to legacy appeals. 

Nothing in this section shall be 

construed to limit the Board’s authority 

to remand a matter to which this 

paragraph (h)(1) applies to the General 

Counsel under 38 CFR 20.904 for any 

action that is essential for a proper 

appellate decision or the General 

Counsel’s ability to issue a 

Supplemental Statement of the Case 

under 38 CFR 19.31. 

(2) Decisions issued on or after the 

effective date of the modernized review 

system. Notwithstanding provisions in 

this section for closing the record before 

the Office of the General Counsel at the 

end of the 30-day period for filing an 

answer or 10 days after a hearing, 

appeals of decisions issued on or after 

the effective date of the modernized 

review system as provided in § 19.2(a) 

of this chapter shall be initiated and 

processed using the procedures in 38 

CFR part 20 applicable to appeals under 

the modernized system. 

* * * * * 

(j) The effective date for suspension or 

cancellation of accreditation or 

authority to provide representation on a 

particular claim shall be the date upon 

which the General Counsel’s final 

decision is rendered. 

* * * * * 

■ 40. Amend § 14.636: 

■ a. Revising paragraph (c); 

■ b. In paragraph (e)(7), by removing 

‘‘and’’; 

■ c. By revising paragraph (e)(8); 

■ d. By adding paragraph (e)(9); 

■ e. By revising paragraph (f); 

■ f. By removing the references to 

‘‘reopened’’ in paragraph (h)(3) 

introductory text and in the first 

sentence in paragraph (h)(3)(i) and 

adding in their place the word 

‘‘readjudicated’’; and 

■ g. By revising paragraphs (i)(3) and 

(k). 

The revisions and addition read as 

follows: 

§ 14.636 Payment of fees for 

representation by agents and attorneys in 

proceedings before Agencies of Original 

Jurisdiction and before the Board of 

Veterans’ Appeals. 

* * * * * 

(c) Circumstances under which fees 

may be charged. Except as noted in 

paragraph (d) of this section, agents and 

attorneys may only charge fees as 

follows: 

(1)(i) Agents and attorneys may charge 

claimants or appellants for 

representation provided after an agency 

of original jurisdiction has issued notice 

of an initial decision on the claim or 

claims if the notice of the initial 

decision was issued on or after the 

effective date of the modernized review 

system as provided in § 19.2(a) of this 

chapter, and the agent or attorney has 

complied with the power of attorney 

requirements in § 14.631 and the fee 

agreement requirements in paragraph (g) 

of this section. For purposes of this 

paragraph (c)(1)(i), an initial decision on 

a claim would include an initial 

decision on an initial claim for an 

increase in rate of benefit, an initial 

decision on a request to revise a prior 

decision based on clear and 

unmistakable error (unless fees are 

permitted at an earlier point pursuant to 

paragraph (c)(1)(ii) or paragraph 

(c)(2)(ii) of this section), and an initial 

decision on a supplemental claim that 

was presented after the final 

adjudication of an earlier claim. 

However, a supplemental claim will be 

considered part of the earlier claim if 

the claimant has continuously pursued 

the earlier claim by filing any of the 

following, either alone or in succession: 

A request for higher-level review, on or 

before one year after the date on which 

the agency of original jurisdiction 

issued a decision; a supplemental claim, 

on or before one year after the date on 

which the agency of original jurisdiction 

issued a decision; a Notice of 

Disagreement, on or before one year 

after the date on which the agency of 

original jurisdiction issued a decision; a 

supplemental claim, on or before one 

year after the date on which the Board 

of Veterans’ Appeals issued a decision; 

or a supplemental claim, on or before 

one year after the date on which the 

Court of Appeals for Veterans Claims 

issued a decision. 

(ii) Agents and attorneys may charge 

fees for representation provided with 

respect to a request for revision of a 

decision of an agency of original 

jurisdiction under 38 U.S.C. 5109A or 

the Board of Veterans’ Appeals under 38 

U.S.C. 7111 based on clear and 

unmistakable error if notice of the 

challenged decision on a claim or 

claims was issued on or after the 

effective date of the modernized review 

system as provided in § 19.2(a), and the 

agent or attorney has complied with the 

power of attorney requirements in 

§ 14.631 and the fee agreement 

requirements in paragraph (g) of this 

section. 

(2)(i) Agents and attorneys may charge 

claimants or appellants for 

representation provided: After an 

agency of original jurisdiction has 

issued a decision on a claim or claims, 

including any claim to reopen under 38 

CFR 3.156(a) or for an increase in rate 

of a benefit; the agency of original 

jurisdiction issued notice of that 

decision before the effective date of the 

modernized review system as provided 

in § 19.2(a) of this chapter; a Notice of 

Disagreement has been filed with 

respect to that decision on or after June 

20, 2007; and the agent or attorney has 

complied with the power of attorney 

requirements in § 14.631 and the fee 

agreement requirements in paragraph (g) 

of this section. 

(ii) Agents and attorneys may charge 

fees for representation provided with 

respect to a request for revision of a 

decision of an agency of original 

jurisdiction under 38 U.S.C. 5109A or 

the Board of Veterans’ Appeals under 38 

U.S.C. 7111 based on clear and 

unmistakable error if notice of the 

challenged decision was issued before 

the effective date of the modernized 

review system as provided in § 19.2(a); 

a Notice of Disagreement was filed with 

respect to the challenged decision on or 

after June 20, 2007; and the agent or 

attorney has complied with the power of 

attorney requirements in § 14.631 and 

the fee agreement requirements in 

paragraph (g) of this section. 

(3) In cases in which a Notice of 

Disagreement was filed on or before 

June 19, 2007, agents and attorneys may 

charge fees only for services provided 

after both of the following conditions 

have been met: 


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(i) A final decision was promulgated 

by the Board with respect to the issue, 

or issues, involved in the appeal; and 

(ii) The agent or attorney was retained 

not later than 1 year following the date 

that the decision by the Board was 

promulgated. (This condition will be 

considered to have been met with 

respect to all successor agents or 

attorneys acting in the continuous 

prosecution of the same matter if a 

predecessor was retained within the 

required time period.) 

(4) Except as noted in paragraph (i) of 

this section and § 14.637(d), the agency 

of original jurisdiction that issued the 

decision referenced in paragraph (c)(1) 

or (2) of this section shall determine 

whether an agent or attorney is eligible 

for fees under this section. The agency 

of original jurisdiction’s eligibility 

determination is a final adjudicative 

action that may only be appealed to the 

Board. 

* * * * * 

(e) * * * 

(8) Whether, and to what extent, the 

payment of fees is contingent upon the 

results achieved; and 

(9) If applicable, the reasons why an 

agent or attorney was discharged or 

withdrew from representation before the 

date of the decision awarding benefits. 

(f) Presumptions and discharge. (1) 

Fees which do not exceed 20 percent of 

any past-due benefits awarded as 

defined in paragraph (h)(3) of this 

section shall be presumed to be 

reasonable if the agent or attorney 

provided representation that continued 

through the date of the decision 

awarding benefits. Fees which exceed 

331⁄3 percent of any past-due benefits 

awarded shall be presumed to be 

unreasonable. These presumptions may 

be rebutted through an examination of 

the factors in paragraph (e) of this 

section establishing that there is clear 

and convincing evidence that a fee 

which does not exceed 20 percent of 

any past-due benefits awarded is not 

reasonable or that a fee which exceeds 

331⁄3 percent is reasonable in a specific 

circumstance. 

(2) With regard to a fee agreement in 

which the amount of the fee is 

contingent on the claimant receiving an 

award of benefits, a reasonable fee for an 

agent or attorney who is discharged by 

the claimant or withdraws from 

representation before the date of the 

decision awarding benefits is one that 

fairly and accurately reflects his or her 

contribution to and responsibility for 

the benefits awarded. The amount of the 

fee is informed by an examination of the 

factors in paragraph (e) of this section. 

* * * * * 

(i) * * * 

(3) The Office of the General Counsel 

shall close the record before the Office 

of the General Counsel in proceedings to 

review fee agreements 15 days after the 

date on which the agent or attorney 

served a response on the claimant or 

appellant, or 30 days after the claimant, 

appellant, or the Office of the General 

Counsel served the motion on the agent 

or attorney if there is no response. The 

Deputy Chief Counsel with subjectmatter jurisdiction may, for a reasonable 

period upon a showing of sufficient 

cause, extend the time for an agent or 

attorney to serve an answer or for a 

claimant or appellant to serve a reply. 

The Deputy Chief Counsel shall forward 

the record and a recommendation to the 

General Counsel or his or her designee 

for a final decision. Unless either party 

files a Notice of Disagreement, the agent 

or attorney must refund any excess 

payment to the claimant or appellant 

not later than the expiration of the time 

within which the Office of the General 

Counsel’s decision may be appealed to 

the Board of Veterans’ Appeals. 

* * * * * 

(k)(1) Decisions issued before the 

effective date of the modernized review 

system. Notwithstanding provisions in 

this section for closing the record before 

the Office of the General Counsel at the 

end of the 30-day period for serving a 

response or 15 days after the date on 

which the agent or attorney served a 

response, appeals of decisions issued 

before the effective date of the 

modernized review system as provided 

in § 19.2(a) of this chapter, shall be 

initiated and processed using the 

procedures in 38 CFR parts 19 and 20 

applicable to legacy appeals. Nothing in 

this section shall be construed to limit 

the Board’s authority to remand a matter 

to the General Counsel under 38 CFR 

20.904 for any action that is essential for 

a proper appellate decision or the 

General Counsel’s ability to issue a 

Supplemental Statement of the Case 

under 38 CFR 19.31. 

(2) Decisions issued on or after the 

effective date of the modernized review 

system. Notwithstanding provisions in 

this section for closing the record before 

the Office of the General Counsel at the 

end of the 30-day period for serving a 

response or 15 days after the date on 

which the agent or attorney served a 

response, appeals of decisions issued on 

or after the effective date of the 

modernized review system as provided 

in § 19.2(a) of this chapter, shall be 

initiated and processed using the 

procedures in 38 CFR part 20 applicable 

to appeals under the modernized 

system. 

* * * * * 

■ 41. Amend § 14.637 by revising 

paragraphs (d)(3) and (f) to read as 

follows: 

§ 14.637 Payment of the expenses of 

agents and attorneys in proceedings before 

Agencies of Original Jurisdiction and 

before the Board of Veterans’ Appeals. 

* * * * * 

(d) * * * 

(3) The Office of the General Counsel 

shall close the record before the Office 

of the General Counsel in proceedings to 

review expenses 15 days after the date 

on which the agent or attorney served a 

response on the claimant or appellant, 

or 30 days after the claimant, appellant, 

or the Office of the General Counsel 

served the motion on the agent or 

attorney if there is no response. The 

Deputy Chief Counsel with subjectmatter jurisdiction may, for a reasonable 

period upon a showing of sufficient 

cause, extend the time for an agent or 

attorney to serve an answer or for a 

claimant or appellant to serve a reply. 

The Deputy Chief Counsel shall forward 

the record and a recommendation to the 

General Counsel or his or her designee 

for a final decision. Unless either party 

files a Notice of Disagreement, the agent 

or attorney must refund any excess 

payment to the claimant or appellant 

not later than the expiration of the time 

within which the Office of the General 

Counsel’s decision may be appealed to 

the Board of Veterans’ Appeals. 

* * * * * 

(f)(1) Decisions issued before the 

effective date of the modernized review 

system. Notwithstanding provisions in 

this section for closing the record before 

the Office of the General Counsel at the 

end of the 30-day period for serving a 

response or 15 days after the date on 

which the agent or attorney served a 

response, appeals of decisions issued 

before the effective date of the 

modernized review system as provided 

in § 19.2(a) of this chapter, shall be 

initiated and processed using the 

procedures in 38 CFR parts 19 and 20 

applicable to legacy appeals. Nothing in 

this section shall be construed to limit 

the Board’s authority to remand a matter 

to the General Counsel under 38 CFR 

20.904 for any action that is essential for 

a proper appellate decision or the 

General Counsel’s ability to issue a 

Supplemental Statement of the Case 

under 38 CFR 19.31. 

(2) Decisions issued on or after the 

effective date of the modernized review 

system. Notwithstanding provisions in 

this section for closing the record before 

the Office of the General Counsel at the 


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end of the 30-day period for serving a 

response or 15 days after the date on 

which the agent or attorney served a 

response, appeals of decisions issued on 

or after the effective date of the 

modernized review system as provided 

in § 19.2(a) of this chapter, shall be 

initiated and processed using the 

procedures in 38 CFR part 20 applicable 

to appeals under the modernized 

system. 

* * * * * 

PART 19—BOARD OF VETERANS’ 

APPEALS: LEGACY APPEALS 

REGULATIONS 

■ 42. The authority citation for part 19 

continues to read as follows: 

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

otherwise noted. 

PART 20—BOARD OF VETERANS’ 

APPEALS: RULES OF PRACTICE 

■ 43. The authority citation for part 20 

continues to read as follows: 

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

otherwise noted in specific sections. 

PART 19—[AMENDED] 

■ 45. The heading for part 19 is revised 

as set forth above. 

Subpart A—Applicability 

■ 46. The heading for subpart A is 

revised as set forth above. 

PART 20—[AMENDED] 

§ 20.102 [Removed] 

■ 47. Remove § 20.102. 

§ 20.100 [Redesignated as § 20.102] 

■ 48. Redesignate § 20.100 as § 20.102. 

§ 20.101 [Redesignated as § 20.104] 

■ 49–50. Redesignate § 20.101 as 

§ 20.104. 

§ 20.903 [Redesignated as § 20.908] 

■ 51. Redesignate § 20.903 as § 20.908. 

§ 20.904 [Redesignated as § 20.1000] 

■ 52. Redesignate § 20.904 as § 20.1000. 

PARTS 19 AND 20—[AMENDED] 

§§ 19.1 through 19.5, 19.7 through 19.9, and 

19.11 through 19.14 [Transferred to Part 

20 and Redesignated as §§ 20.100, 20.101, 

201.106, 20.103, 20.105, 20.903, 20.905, 

20.904, 20.1004, 20.107, 20.108, and 20.109] 

■ 53. As displayed in the following 

table, transfer and redesignate the part 

19 sections in the left column to the 

corresponding part 20 sections in the 

right column. 

Part 19 sections Part 20 sections 

19.1 .................... 20.100 

19.2 .................... 20.101 

19.3 .................... 20.106 

19.4 .................... 20.103 

19.5 .................... 20.105 

19.7 .................... 20.903 

19.8 .................... 20.905 

19.9 .................... 20.904 

19.11 .................. 20.1004 

19.12 .................. 20.107 

19.13 .................. 20.108 

19.14 .................. 20.109 

PART 19—[AMENDED] 

§§ 19.50 through 19.53 [Removed] 

■ 54. Remove §§ 19.50 through 19.53. 

PARTS 19 AND 20—[AMENDED] 

§§ 20.200, 20.201, 20.202, 20.204, and 20.300 

through 20.304 [Transferred to Part 19 and 

Redesignated as §§ 19.20, 19.21, 19.22, 

19.55, 19.51, 19.50, and 19.52 through 19.54] 

■ 55. As displayed in the following 

table, transfer and redesignate the part 

20 sections in the left column to the 

corresponding part 19 sections in the 

right column. 

Part 20 sections Part 19 sections 

20.200 ................ 19.20 (in subpart B) 

20.201 ................ 19.21 (in subpart B) 

20.202 ................ 19.22 (in subpart B) 

20.204 ................ 19.55 

20.300 ................ 19.51 

20.301 ................ 19.50 

20.302 ................ 19.52 

20.303 ................ 19.53 

PART 19—[AMENDED] 

■ 56. Add new §§ 19.1 and 19.2 to read 

as follows: 

§ 19.1. Provisions applicable to legacy 

appeals. 

Part 19 and subparts F, G, and J of 

part 20 apply only to the processing and 

adjudication of legacy appeals, as 

defined in § 19.2. Except as otherwise 

provided in specific sections, subparts 

A, B, H, K, L, M, N, and O of part 20 

apply to the processing and 

adjudication of both appeals and legacy 

appeals. For applicability provisions 

concerning appeals in the modernized 

review system, see § 20.4 of this chapter. 

§ 19.2. Appellant’s election for review of a 

legacy appeal in the modernized system. 

(a) Effective date. As used in this 

section, the effective date means 

February 19, 2019. 

(b) Modernized review system. The 

modernized review system refers to the 

current statutory framework for claims 

and appeals processing, set forth in 

Public Law 115–55, and any 

amendments thereto, applicable on the 

effective date. The modernized review 

system applies to all claims, requests for 

reopening of finally adjudicated claims, 

and requests for revision based on clear 

and unmistakable error for which VA 

issues notice of an initial decision on or 

after the effective date, or as otherwise 

provided in paragraph (d) of this 

section. 

(c) Legacy appeals. A legacy appeal is 

an appeal of a legacy claim, as defined 

in 38 CFR 3.2400(b), where a claimant 

has not elected to participate in the 

modernized review system as provided 

in paragraph (d) of this section. A legacy 

appeal is initiated by the filing of a 

Notice of Disagreement and is perfected 

to the Board with the filing of a 

Substantive Appeal pursuant to 

applicable regulations in accordance 

with 38 CFR parts 19 and 20. 

(d) Election into the modernized 

review system. The modernized review 

system applies to legacy claims and 

appeals where: 

(1) A claimant with a legacy claim or 

appeal elects the modernized review 

system pursuant to 38 CFR 3.2400(c)(1); 

(2) A claimant with a legacy claim or 

appeal elects the modernized review 

system, following issuance, on or after 

the effective date, of a VA Statement of 

the Case or Supplemental Statement of 

the Case. The election is made by filing, 

on a form prescribed by the Secretary, 

an appeal in accordance with 38 CFR 

20.202, or a review option in accordance 

with 38 U.S.C. 5108 or 5104B, as 

implemented by 38 CFR 3.2500 and 

other applicable regulations. The 

election must be filed within the time 

allowed for filing a substantive appeal 

under § 19.52(b); or 

(3) VA issued notice of a decision 

prior to the effective date, and, pursuant 

to the Secretary’s authorization to 

participate in a test program, the 

claimant elects the modernized review 

system by filing an appeal in accordance 

with 38 U.S.C. 7105, or a review option 

in accordance with 38 U.S.C. 5108 or 

5104B. 

(Authority: Pub. L. 115–55; 131 Stat. 1105; 38 

U.S.C. 5104B, 5104C(a); 5108; 38 U.S.C. 

7105) 

§§ 19.3 through 19.5, 19.7 through 19.9, and 

19.11 through 19.14 [Reserved] 

■ 57. Add reserved §§ 19.3 through 19.5, 

19.7 through 19.9, and 19.11 through 

19.14 to subpart A. 


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Subpart B—Legacy Appeals and 

Legacy Appeals Processing by Agency 

of Original Jurisdiction 

■ 58. Revise the subpart B heading as set 

forth above. 

■ 59. Amend newly redesignated 

§ 19.20: 

■ a. By revising the section heading; 

■ b. In the introductory text, by 

removing the text ‘‘§ 20.201’’ and adding 

in its place the text ‘‘§ 19.21’’, by 

removing the text ‘‘§ 20.302(a)’’ and 

adding in its place the text ‘‘§ 19.52(a)’’, 

and by adding the text ‘‘of this chapter’’ 

after the text ‘‘of § 20.501(a)’’; and 

■ c. Revising the authority citation at 

the end of the section. 

The revisions read as follows: 

§ 19.20 What constitutes an appeal. 

* * * * * 

(Authority: 38 U.S.C. 7105 (2016)) 

■ 60. Amend newly redesignated 

§ 19.21: 

■ a. By revising the section heading; 

■ b. In paragraph (a)(5), by removing the 

text ‘‘§ 20.302(a)’’ and adding in its 

place the text ‘‘§ 19.52(a)’’; 

■ c. In paragraph (c), by removing the 

text ‘‘§§ 20.500 and 20.501’’ and adding 

in its place the text ‘‘Rules 500 and 501 

(§§ 20.500 and 20.501 of this chapter)’’; 

and 

■ d. Revising the authority citation at 

the end of the section. 

The revisions to read as follows: 

§ 19.21 Notice of Disagreement. 

* * * * * 

(Authority: 38 U.S.C. 7105 (2016)) 

■ 61. Amend newly redesignated 

§ 19.22 by revising the section heading 

and authority citation at the end of the 

section to read as follows: 

§ 19.22 Substantive Appeal. 

* * * * * 

(Authority: 38 U.S.C. 7105(d)(3)–(5) (2016)) 

§ 19.23 [Amended] 

■ 62. Amend § 19.23: 

■ a. In paragraph (a), by removing the 

words ‘‘§ 20.201(a) of this chapter’’ and 

adding in their place the text 

‘‘§ 19.21(a)’’ both places they appear, 

and by removing the text ‘‘, § 19.27’’; 

■ b. In paragraph (b), by removing the 

words ‘‘§ 20.201(b) of this chapter’’ and 

adding in their place the text 

‘‘§ 19.21(b)’’, and by removing the text ‘‘, 

§ 19.27’’. 

§ 19.24 [Amended] 

■ 63. Amend § 19.24 by: 

■ a. In paragraph (a), by removing the 

text ‘‘§ 20.201(a) of this chapter’’ and 

adding in its place the text ‘‘§ 19.21(a)’’; 

■ b. In paragraph (b)(1), by removing the 

text ‘‘paragraph (a) of § 20.201 of this 

chapter’’ and adding in its place the text 

‘‘§ 19.21(a)’’; and 

■ c. In paragraph (b)(3) introductory 

text, by removing the text ‘‘§ 20.302(a) of 

this chapter’’ and adding in its place the 

text ‘‘§ 19.52(a)’’. 

■ 64. Amend § 19.25 by revising the 

authority citation at the end of the 

section to read as follows: 

§ 19.25 Notification by agency of original 

jurisdiction of right to appeal. 

* * * * * 

(Authority: 38 U.S.C. 7105(a) (2016)) 

■ 65. Amend § 19.26 by revising the 

authority citation at the end of the 

section to read as follows: 

§ 19.26 Action by agency of original 

jurisdiction on Notice of Disagreement. 

* * * * * 

(Authority: 38 U.S.C. 501; 38 U.S.C. 7105, 

7105A (2016)) 

§ 19.27 [Removed and Reserved] 

■ 66. Remove and reserve § 19.27. 

■ 67. Amend § 19.28 by revising the 

authority citation at the end of the 

section to read as follows: 

§ 19.28 Determination that a Notice of 

Disagreement is inadequate protested by 

claimant or representative. 

* * * * * 

(Authority: 38 U.S.C. 7105 (2016)) 

■ 68. Amend § 19.29 by revising the 

authority citation at the end of the 

section to read as follows: 

§ 19.29 Statement of the Case. 

* * * * * 

(Authority: 38 U.S.C. 7105(d)(1) (2016)) 

■ 69. Amend § 19.30 by revising 

paragraph (b) and the authority citation 

at the end of the section to read as 

follows: 

§ 19.30 Furnishing the Statement of the 

Case and instructions for filing a 

Substantive Appeal. 

* * * * * 

(b) Information furnished with the 

Statement of the Case. With the 

Statement of the Case, the appellant and 

the representative will be furnished 

information on the right to file, and time 

limit for filing, a substantive appeal; 

information on hearing and 

representation rights; and a VA Form 9, 

‘‘Appeal to Board of Veterans’ Appeals’’, 

and a statement describing the available 

review options if the appellant elects 

review of the issue or issues on appeal 

in the modernized review system. 

(Authority: Sec. 2, Pub. L. 115–55; 131 Stat. 

1105; 38 U.S.C. 7105 (2016)) 

■ 70. Amend § 19.31 by adding a second 

sentence to paragraph (a) and revising 

the authority citation at the end of the 

section to read as follows: ‘‘ 

§ 19.31 Supplemental statement of the 

case. 

(a) * * * The information furnished 

with the Supplemental Statement of the 

Case shall include a statement 

describing the available review options 

if the appellant elects review of the 

issue or issues on appeal in the 

modernized system. * * * 

* * * * * 

(Authority: 38 U.S.C. 5902, 5903, 5904; 38 

U.S.C. 7105(d) (2016)) 

■ 71. Amend § 19.32 by revising the 

authority citation at the end of the 

section to read as follows: 

§ 19.32 Closing of appeal for failure to 

respond to Statement of the Case. 

* * * * * 

(Authority: 38 U.S.C. 7105(d)(3) (2016)) 

§ 19.33 [Removed and Reserved] 

■ 72. Remove and reserve § 19.33. 

■ 73. Amend § 19.34 by revising the 

authority citation at the end of the 

section to read as follows: 

§ 19.34 Determination that Notice of 

Disagreement or Substantive Appeal was 

not timely filed protested by claimant or 

representative. 

* * * * * 

(Authority: 38 U.S.C. 7105 (2016)) 

■ 74. Amend § 19.35 by removing the 

second sentence and revising the 

authority citation at the end of the 

section. 

The revision reads as follows: 

§ 19.35 Certification of appeals. 

* * * * * 

(Authority: 38 U.S.C. 7105 (2016)) 

■ 75. Amend § 19.36 by: 

■ a. Removing the text ‘‘Rule of Practice 

1304 (§ 20.1304 of this chapter)’’ from 

the first sentence and adding in its place 

the text ‘‘Rule 1305 (§ 20.1305 of this 

chapter)’’; and by removing the text 

‘‘§ 20.1304’’ from the second sentence 

and adding in its place the text 

‘‘§ 20.1305’’; and 

■ b. Revising the authority citation at 

the end of the section. 

The revision reads as follows: 

§ 19.36 Notification of certification of 

appeal and transfer of appellate record. 

* * * * * 

(Authority: 38 U.S.C. 5902, 5903; 38 U.S.C. 

5904, 7105 (2016)) 

■ 76. Amend § 19.37 by revising the 

authority citation at the end of the 

section to read as follows: 


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§ 19.37 Consideration of additional 

evidence received by the agency of original 

jurisdiction after an appeal has been 

initiated. 

* * * * * 

(Authority: 38 U.S.C. 5902, 5903, 5904; 38 

U.S.C. 7105(d)(1) (2016)) 

■ 77. Amend § 19.38 by: 

■ a. Removing the text ‘‘Rule of Practice 

302, paragraph (c) (§ 20.302(c) of this 

chapter)’’ and adding in its place the 

text ‘‘§ 19.52(c)’’; and 

■ b. Revising the authority citation at 

the end of the section. 

The revision reads as follows: 

§ 19.38 Action by agency of original 

jurisdiction when remand received. 

* * * * * 

(Authority: 38 U.S.C. 7105(d)(1) (2016)) 

Subpart C—Claimant Action in a 

Legacy Appeal 

■ 78. Revise the subpart C heading to 

read as set forth above. 

■ 79. Amend newly redesignate § 19.50 

by revising the section heading and the 

authority citation at the end of the 

section to read as follows: 

§ 19.50 Who can file an appeal. 

* * * * * 

(Authority: 38 U.S.C. 7105(b)(2) (2016)) 

■ 80. Amend newly redesignate § 19.52 

by revising the section heading and the 

authority citations to paragraphs (a) 

through (c) to read as follows: 

§ 19.52 Time limit for filing Notice of 

Disagreement, Substantive Appeal, and 

response to Supplemental Statement of the 

Case. 

(a) * * * 

(Authority: 38 U.S.C. 7105(b)(1) (2016)) 

(b) * * * 

(Authority: 38 U.S.C. 7105(b)(1), (d)(3) 

(2016)) 

(c) * * * 

(Authority: 38 U.S.C. 7105(d)(3) (2016)) 

■ 81. Amend newly redesignated 

§ 19.53 by revising the section heading 

and the authority citation at the end of 

the section to read as follows: 

§ 19.53 Extension of time for filing 

Substantive Appeal and response to 

Supplemental Statement of the Case. 

* * * * * 

(Authority: 38 U.S.C. 7105(d)(3) (2016)) 

■ 82. Amend newly redesignated 

§ 19.54: 

■ a. By revising the section heading; 

■ b. In the introductory text, by 

removing the text ‘‘Rule 302(b) 

(§ 20.302(b) of this part)’’ and adding in 

its place the text ‘‘§ 19.52(b)’’; and 

■ c. Revising the authority citation at 

the end of the section. 

The revisions to read as follows: 

§ 19.54 Filing additional evidence does not 

extend time limit for appeal. 

* * * * * 

(Authority: 38 U.S.C. 7105 (2016)) 

■ 83. Amend newly redesignated 

§ 19.55: 

■ a. By revising the section heading; 

■ b. By revising the paragraph (b)(1) 

subject heading to read ‘‘Content’’, by 

removing the first sentence, and by 

removing the word ‘‘They’’ from the 

second sentence and adding in its place 

the words ‘‘Appeal withdrawals’’; 

■ c. In paragraph (b)(2), by revising the 

last sentence; 

■ d. In paragraph (b)(3), by removing the 

word ‘‘part’’ and adding in its place the 

word ‘‘chapter’’ in the second sentence; 

and 

■ e. Revising the authority citation at 

the end of the section. 

The revisions read as follows: 

§ 19.55 Withdrawal of Appeal. 

* * * * * 

(b) * * * 

(2) * * * Thereafter, file the 

withdrawal at the Board. 

* * * * * 

(Authority 38 U.S.C. 7105(b), (d) (2016)) 

Subpart D—[Removed and Reserved] 

■ 84. Remove and reserve subpart D, 

consisting of §§ 19.75 through 19.99. 

Subpart E—Simultaneously Contested 

Claims 

■ 85. Amend § 19.100 by revising the 

authority citation at the end of the 

section to read as follows: 

§ 19.100 Notification of right to appeal in 

simultaneously contested claims. 

* * * * * 

(Authority: 38 U.S.C. 7105A(a) (2016)) 

■ 86. Amend § 19.101 by revising the 

authority citation at the end of the 

section to read as follows: 

§ 19.101 Notice to contesting parties on 

receipt of Notice of Disagreement in 

simultaneously contested claims. 

* * * * * 

(Authority: 38 U.S.C. 7105A(b) (2016)) 

■ 88. Amend § 19.102 by revising the 

authority citation at the end of the 

section to read as follows: 

§ 19.102 Notice of appeal to other 

contesting parties in simultaneously 

contested claims. 

* * * * * 

(Authority: 38 U.S.C. 7105A(b) (2016)) 

§§ 19.103–19.199 [Added and Reserved] 

■ 80. Add reserved §§ 19.103 through 

19.199 to subpart E. 

Appendix A to Part 19 [Removed] 

■ 90. Remove appendix A to part 19. 

PART 20—[AMENDED] 

Subpart A—General 

§ 20.1 [Amended] 

■ 91. Amend § 20.1 in paragraph (a) by 

adding the text ‘‘(Board)’’ after the text 

‘‘Board of Veterans’ Appeals’’. 

■ 92. Amend § 20.3 by: 

■ a. Revising paragraphs (b), (c) and (f); 

■ b. Removing paragraph (h); 

■ c. Redesignating paragraph (i) as 

paragraph (h); 

■ d. In newly redesignated paragraph 

(h), revising the subject heading and 

removing the text ‘‘argument and/or’’; 

■ d. Removing paragraphs (j) and (k); 

■ e. Redesignating paragraph (l) as 

paragraph (i) and revising the second 

sentence; 

■ f. Removing paragraph (m); 

■ g. Redesignating paragraph (n) as 

paragraph (j) and removing the word 

‘‘reopened’’ and adding in its place the 

word ‘‘readjudicated’’. 

■ h. Redesignating paragraph (o) as 

paragraph (k); 

■ i. Redesignating paragraph (p) as 

paragraph (l); 

■ j. Redesignating paragraph (q) as 

paragraph (m); 

The revisions read as follows: 

§ 20.3 Rule 3. Definitions. 

* * * * * 

(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 

§ 14.631 of this chapter. It does not 

include representatives accredited 

under § 14.629(a) of this chapter, 

attorneys accredited under § 14.629(b) 

of this chapter, or a person authorized 

to represent a claimant for a particular 

claim under § 14.630 of this chapter. 

(c) Appellant means a claimant who 

has filed an appeal to the Board of 

Veterans’ Appeals either as a legacy 

appeal or in the modernized review 

system, as those terms are defined in 

§ 19.2 of this chapter, and Rule 4 (§ 20.4 

of this part), respectively. 

* * * * * 

(f) Claim means a written 

communication requesting a 

determination of entitlement or 

evidencing a belief in entitlement, to a 

specific benefit under the laws 

administered by the Department of 

Veterans Affairs submitted on an 

application form prescribed by the 

Secretary. 

* * * * * 


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(h) Hearing on appeal or Board 

hearing * * * 

(i) * * * For example, a request to 

correct a hearing transcript (see Rule 

714 (§ 20.714)) is raised by motion. 

* * * 

* * * * * 

■ 93. Add § 20.4 to read as follows: 

§ 20.4 Rule 4. Appeal systems definitions 

and applicability provisions. 

(a) Appeal—(1) In general. An appeal 

consists of a Notice of Disagreement 

timely filed to the Board on any issue 

or issues for which VA provided notice 

of a decision under 38 U.S.C. 5104 on 

or after the effective date, as defined in 

§ 19.2(a) of this chapter. 

(2) Appellant’s election for review of 

a legacy claim or appeal in the 

modernized review system. The 

regulations applicable to appeals are 

also applicable to legacy claims and 

appeals, as those terms are defined in 

§§ 3.2400(b) and 19.2(c) of this chapter, 

where the claimant elects the 

modernized review system pursuant to 

§ 19.2(d) of this chapter, and upon the 

timely filing to the Board of a Notice of 

Disagreement. 

(b) Applicability of parts 19 and 20— 

(1) Appeals. Subparts C, D, E, and I of 

part 20 apply only to the processing and 

adjudication of appeals in the 

modernized review system. 

(2) Legacy claims and appeals. Part 19 

and subparts F, G, and J of part 20 apply 

only to the processing and adjudication 

of legacy claims and appeals. 

(3) Both appeals systems. Except as 

otherwise provided in specific sections, 

subparts A, B, H, K, L, M, N, and O of 

part 20 apply to the processing and 

adjudication of both appeals and legacy 

claims and appeals. 

(Authority: Sec. 2, Pub. L. 115–55; 131 Stat. 

1105) 

Subpart B—The Board 

■ 94. Amend newly redesignated 

§ 20.100 by revising the section heading 

to read as follows: 

§ 20.100 Rule 100. Establishment of the 

Board. 

* * * * * 

■ 95. In newly redesignated § 20.102, 

revise the section heading and 

paragraph (c) to read as follows: 

§ 20.102 Rule 102. Name, business hours, 

and mailing address of the Board. 

* * * * * 

(c) Mailing address. The mailing 

address of the Board is: Board of 

Veterans’ Appeals, P.O. Box 27063, 

Washington, DC 20038. Mail to the 

Board that is not related to an appeal 

must be addressed to: Board of Veterans’ 

Appeals, 810 Vermont Avenue NW, 

Washington, DC 20420. 

* * * * * 

■ 96. Amend newly redesignated 

§ 20.104 by: 

■ a. Removing the third sentence of 

paragraph (a); 

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

■ c. Removing paragraph (e); and 

■ d. Revising the authority citation at 

the end of the section. 

The revisions read as follows: 

§ 20.104 Rule 104. Jurisdiction of the 

Board. 

* * * * * 

(c) Authority to determine 

jurisdiction. The Board shall decide all 

questions pertaining to its jurisdictional 

authority to review a particular case. 

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. 

(d)(1) Appeals as to jurisdiction in 

legacy claims and appeals. All 

claimants in legacy appeals, as defined 

in § 19.2 of this chapter, 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. 

(Authority: Sec. 2, Pub. L. 115–55; 131 Stat. 

1105) 

(2) Application of 20.904 and 

20.1305. Section 20.904 of this part 

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 

§ 20.1305 of this part do not apply to a 

hearing requested, or evidence 

submitted, under paragraph (c) of this 

section. 

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

7108) 

■ 97. Revise subpart C to read as 

follows: 

Subpart C—Commencement and Filing 

of Appeals 

Sec. 

20.200 Rule 200. Notification by agency of 

original jurisdiction of right to appeal. 

20.201 Rule 201. What constitutes an 

appeal. 

20.202 Rule 202. Notice of Disagreement. 

20.203 Rule 203. Place and time of filing of 

Notice of Disagreement. 

20.204 Rule 204. Who can file a Notice of 

Disagreement. 

20.205 Rule 205. Withdrawal of appeal. 

20.206–20.299 [Reserved] 

§ 20.200 Rule 200. Notification by agency 

of original jurisdiction of right to appeal. 

The claimant and his or her 

representative, if any, will be informed 

of appellate rights provided by 38 U.S.C. 

chapters 71 and 72, including the right 

to a personal hearing and the right to 

representation. The agency of original 

jurisdiction will provide this 

information in each notification of a 

determination of entitlement or 

nonentitlement to Department of 

Veterans Affairs benefits, pursuant to 38 

U.S.C. 5104, 5104B, and 5108. 

(Authority: 38 U.S.C. 7105(a)) 

§ 20.201 Rule 201. What constitutes an 

appeal. 

An appeal of a decision by the agency 

of original jurisdiction consists of a 

Notice of Disagreement submitted to the 

Board in accordance with the provisions 

of §§ 20.202–20.204. 

(Authority: 38 U.S.C. 7105) 

§ 20.202 Rule 202. Notice of Disagreement. 

(a) In general. A Notice of 

Disagreement must be properly 

completed on a form prescribed by the 

Secretary. If the agency of original 

jurisdiction decision addressed several 

issues, the Notice of Disagreement must 

identify the specific decision and issue 

or issues therein with which the 

claimant disagrees. The term issue 

means an adjudication of a specific 

entitlement as described in 38 CFR 

3.151(c). The Board will construe such 

arguments in a liberal manner for 

purposes of determining whether they 

raise issues on appeal, but the Board 

may dismiss any appeal which fails to 

identify the specific decision and issue 

or issues therein with which the 

claimant disagrees. 


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(b) Review options. Upon filing the 

Notice of Disagreement, a claimant must 

indicate whether the claimant requests: 

(1) Direct review by the Board of the 

record before the agency of original 

jurisdiction at the time of its decision, 

without submission of additional 

evidence or a Board hearing; 

(2) A Board hearing, to include an 

opportunity to submit additional 

evidence at the hearing and within 90 

days following the hearing; or 

(3) An opportunity to submit 

additional evidence without a Board 

hearing with the Notice of Disagreement 

and within 90 days following receipt of 

the Notice of Disagreement. 

(c)(1) The information indicated by 

the claimant in paragraph (b) of this 

section determines the evidentiary 

record before the Board as described in 

subpart D of this part, and the docket on 

which the appeal will be placed, as 

described in Rule 800 (§ 20.800). Except 

as otherwise provided in paragraph (2) 

of this section, the Board will not 

consider evidence as described in Rules 

302 or 303 (§§ 20.302 and 20.303) unless 

the claimant requests a Board hearing or 

an opportunity to submit additional 

evidence on the Notice of Disagreement. 

(2) A claimant may modify the 

information identified in the Notice of 

Disagreement for the purpose of 

selecting a different evidentiary record 

option as described in paragraph (b) of 

this section. Requests to modify a Notice 

of Disagreement must be made by 

completing a new Notice of 

Disagreement on a form prescribed by 

the Secretary, and must be received at 

the Board within one year from the date 

that the agency of original jurisdiction 

mails notice of the decision on appeal, 

or within 60 days of the date that the 

Board receives the Notice of 

Disagreement, whichever is later. 

Requests to modify a Notice of 

Disagreement will not be granted if the 

appellant has submitted evidence or 

testimony as described in §§ 20.302 and 

20.303. 

(d) Standard form required. The 

Board will not accept as a Notice of 

Disagreement an expression of 

dissatisfaction or disagreement with an 

adjudicative determination by the 

agency of original jurisdiction and a 

desire to contest the result that is 

submitted in any format other than the 

form prescribed by the Secretary, 

including on a different VA form. 

(e) Alternate form or other 

communication. The filing of an 

alternate form or other communication 

will not extend, toll, or otherwise delay 

the time limit for filing a Notice of 

Disagreement, as provided in 

§ 20.203(b). In particular, returning the 

incorrect VA form does not extend, toll, 

or otherwise delay the time limit for 

filing the correct form. 

(f) Unclear Notice of Disagreement. If 

within one year after mailing an adverse 

decision (or 60 days for simultaneously 

contested claims), the Board receives a 

Notice of Disagreement completed on 

the form prescribed by the Secretary, 

but the Board cannot identify which 

denied issue or issues the claimant 

wants to appeal or which option the 

claimant intends to select under 

paragraph (b) of this section, then the 

Board will contact the claimant to 

request clarification of the claimant’s 

intent. 

(g) Response required from 

claimant—(1) Time to respond. The 

claimant must respond to the Board’s 

request for clarification on or before the 

later of the following dates: 

(i) 60 days after the date of the Board’s 

clarification request; or 

(ii) One year after the date of mailing 

of notice of the adverse decision being 

appealed (60 days for simultaneously 

contested claims). 

(2) Failure to respond. If the claimant 

fails to provide a timely response, the 

previous communication from the 

claimant will not be considered a Notice 

of Disagreement as to any claim for 

which clarification was requested. The 

Board will not consider the claimant to 

have appealed the decision(s) on any 

claim(s) as to which clarification was 

requested and not received. 

(h) Action following clarification. The 

unclear Notice of Disagreement is 

properly completed, and thereby filed, 

under paragraph (a) of this section when 

the Board receives the clarification. 

(i) Representatives and fiduciaries. 

For the purpose of the requirements in 

paragraphs (f) through (h) of this 

section, references to the ‘‘claimant’’ 

include reference to the claimant or his 

or her representative, if any, or to his or 

her fiduciary, if any, as appropriate. 

(Authority: 38 U.S.C. 7105) 

[Approved by the Office of Management and 

Budget under control number 2900–0674] 

§ 20.203 Rule 203. Place and time of filing 

of Notice of Disagreement. 

(a) Place of filing. The Notice of 

Disagreement must be filed with the 

Board of Veterans’ Appeals, P.O. Box 

27063, Washington, DC 20038. 

(b) Time of filing. Except as provided 

in § 20.402 for simultaneously contested 

claims, a claimant, or his or her 

representative, must file a properly 

completed Notice of Disagreement with 

a decision by the agency of original 

jurisdiction within one year from the 

date that the agency mails the notice of 

the decision. The date of mailing the 

letter of notification of the decision will 

be presumed to be the same as the date 

of that letter for purposes of determining 

whether an appeal has been timely filed. 

(c) Extension of time of filing. An 

extension of the period for filing a 

Notice of Disagreement or a request to 

modify a Notice of Disagreement may be 

granted for good cause. A request for 

such an extension must be in writing 

and must be filed with the Board. 

Whether good cause for an extension 

has been established will be determined 

by the Board. 

(Authority: 38 U.S.C. 7105) 

§ 20.204 Rule 204. Who can file a Notice of 

Disagreement. 

(a) Persons authorized. A Notice of 

Disagreement may be filed by a claimant 

personally, or by his or her 

representative if a proper Power of 

Attorney is on record or accompanies 

such Notice of Disagreement. 

(b) Claimant rated incompetent by 

Department of Veterans Affairs or under 

disability and unable to file. If an appeal 

is not filed by a person listed in 

paragraph (a) of this section, and the 

claimant is rated incompetent by the 

Department of Veterans Affairs or has a 

physical, mental, or legal disability 

which prevents the filing of an appeal 

on his or her own behalf, a Notice of 

Disagreement may be filed by a 

fiduciary appointed to manage the 

claimant’s affairs by the Department of 

Veterans Affairs or a court, or by a 

person acting as next friend if the 

appointed fiduciary fails to take needed 

action or no fiduciary has been 

appointed. 

(c) Claimant under disability and able 

to file. Notwithstanding the fact that a 

fiduciary may have been appointed for 

a claimant, an appeal filed by a claimant 

will be accepted. 

(Authority: 38 U.S.C. 7105(b)(2)(A)) 

§ 20.205 Rule 205. Withdrawal of appeal. 

(a) When and by whom filed. Only an 

appellant, or an appellant’s authorized 

representative, may withdraw an 

appeal. An appeal may be withdrawn as 

to any or all issues involved in the 

appeal. 

(b) Filing—(1) Content. Appeal 

withdrawals 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 a statement that 

the appeal is withdrawn. If the appeal 

involves multiple issues, the 

withdrawal must specify that the appeal 


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is withdrawn in its entirety, or list the 

issue(s) withdrawn from the appeal. 

(2) Where to file. Appeal withdrawals 

should be filed with the Board. 

(3) When effective. An appeal 

withdrawal is effective when received 

by the Board. A withdrawal received 

after the Board issues a final decision 

under Rule 1100(a) (§ 20.1100(a)) will 

not be effective. 

(c) Effect of filing. Withdrawal of an 

appeal will be deemed a withdrawal of 

the Notice of Disagreement as to all 

issues to which the withdrawal applies. 

Withdrawal does not preclude filing a 

new Notice of Disagreement pursuant to 

this subpart, a request for higher-level 

review under 38 U.S.C. 5104B, or a 

supplemental claim under 38 U.S.C. 

5108, as to any issue withdrawn, 

provided such filing would be timely 

under these rules if the withdrawn 

appeal had never been filed. 

(Authority: 38 U.S.C. 7105) 

§§ 20.206–20.299 [Reserved] 

Subpart D—Evidentiary Record 

■ 98. Revise the subpart D heading to 

read as set forth above. 

§ 20.305 [Redesignated as § 20.110] 

■ 99. Redesignate § 20.305 as § 20.110. 

■ 100. Amend newly redesignated 

§ 20.110 by revising the section heading 

to read as follows: 

§ 20.110 Rule 110. Computation of time 

limit for filing. 

* * * * * 

§ 20.306 [Redesignated as § 20.111] 

■ 101. Redesignate § 20.306 as § 20.111. 

■ 102. Amend newly redesignated 

20.111 by: 

■ a. Revising the section heading; and 

■ b. Removing the words ‘‘Rule 305 

(§ 20.305)’’ and adding in their place the 

words ‘‘Rule 110 (§ 20.110)’’. 

The revision reads as follows: 

§ 20.111 Rule 111. Legal holidays. 

* * * * * 

■ 103. Add new §§ 20.300 through 

20.303 to read as follows: 

Sec. 

* * * * * 

20.300 Rule 300. General. 

20.301 Rule 301. Appeals with no request 

for a Board hearing and no additional 

evidence. 

20.302 Rule 302. Appeals with a request for 

a Board hearing. 

20.303 Rule 303. Appeals with no request 

for a Board hearing, but with a request 

for submission of additional evidence. 

* * * * * 

§ 20.300 Rule 300. General. 

(a) Decisions of the Board will be 

based on a de novo review of the 

evidence of record at the time of the 

agency of original jurisdiction decision 

on the issue or issues on appeal, and 

any additional evidence or testimony 

submitted pursuant to this subpart, as 

provided in § 20.801. 

(b) Waiver of appellant’s right to 

submit evidence. For appeals described 

in 20.302 and 20.303, an appellant has 

a right to submit evidence during a 

period of 90 days, unless this right is 

waived by the appellant or 

representative at any time prior to the 

expiration of the applicable 90-day 

period. Such a waiver must be in 

writing or, if a hearing on appeal is 

conducted pursuant to 20.302, the 

waiver must be formally and clearly 

entered on the record orally at the time 

of the hearing. 

(Authority: 38 U.S.C. 7104) 

§ 20.301 Rule 301. Appeals with no request 

for a Board hearing and no additional 

evidence. 

For appeals in which the appellant 

requested, on the Notice of 

Disagreement, direct review by the 

Board without submission of additional 

evidence and without a Board hearing, 

the Board’s decision will be based on a 

review of the evidence of record at the 

time of the agency of original 

jurisdiction decision on the issue or 

issues on appeal. 

(Authority: 38 U.S.C. 7105, 7107, 7113(a)) 

§ 20.302 Rule 302. Appeals with a request 

for a Board hearing. 

(a) Except as described in paragraphs 

(b) and (c) of this section, for appeals in 

which the appellant requested, on the 

Notice of Disagreement, a Board 

hearing, the Board’s decision will be 

based on a review of the following: 

(1) Evidence of record at the time of 

the agency of original jurisdiction’s 

decision on the issue or issues on 

appeal; 

(2) Evidence submitted by the 

appellant or his or her representative at 

the hearing, to include testimony 

provided at the hearing; and 

(3) Evidence submitted by the 

appellant or his or her representative 

within 90 days following the hearing. 

(b) In the event that the hearing 

request is withdrawn pursuant to 

§ 20.704(e), the Board’s decision will be 

based on a review of evidence described 

in paragraph (a)(1) of this section, and 

evidence submitted by the appellant or 

his or her representative within 90 days 

following receipt of the withdrawal. 

(c) In the event that the appellant does 

not appear for a scheduled hearing, and 

the hearing is not rescheduled subject to 

§ 20.704(d), the Board’s decision will be 

based on a review of evidence described 

in paragraph (a)(1) of this section, and 

evidence submitted by the appellant or 

his or her representative within 90 days 

following the date of the scheduled 

hearing. 

(Authority: 38 U.S.C. 7105, 7107, 7113(b)) 

§ 20.303 Rule 303. Appeals with no request 

for a Board hearing, but with a request for 

submission of additional evidence. 

For appeals in which the appellant 

requested, on the Notice of 

Disagreement, an opportunity to submit 

additional evidence without a Board 

hearing, the Board’s decision will be 

based on a review of the following: 

(a) Evidence of record at the time of 

the agency of original jurisdiction’s 

decision on the issue or issues on 

appeal; and 

(b) Evidence submitted by the 

appellant or his or her representative: 

(1) With the Notice of Disagreement or 

within 90 days following receipt of the 

Notice of Disagreement; or, 

(2) If the appellant did not request an 

opportunity to submit additional 

evidence on the Notice of Disagreement, 

but subsequently requested to submit 

additional evidence pursuant to Rule 

202, (§ 20.202(c)(2)(ii)), within 90 days 

following VA’s notice that the appeal 

has been moved to the docket described 

in § 20.800(a)(ii). 

(Authority: 38 U.S.C. 7105, 7107, 7113(c)) 

§§ 20.304 through 20.306 [Added and 

Reserved] 

■ 104. Add reserved §§ 20.304 through 

20.306. 

■ 105. Revise subpart E to read as 

follows: 

Subpart E—Appeal in Simultaneously 

Contested Claims 

Sec. 

20.400 Rule 400. Notification of the right to 

appeal in a simultaneously contested 

claim. 

20.401 Rule 401. Who can file an appeal in 

simultaneously contested claims. 

20.402 Rule 402. Time limits for filing 

Notice of Disagreement in 

simultaneously contested claims. 

20.403 Rule 403. Notice to contesting 

parties on receipt of Notice of 

Disagreement in simultaneously 

contested claims. 

20.404 Rule 404. Time limit for response to 

appeal by another contesting party in a 

simultaneously contested claim. 

20.405 Rule 405. Docketing of 

simultaneously contested claims at the 

Board. 

20.406 Rule 406. Notices sent to last 

addresses of record in simultaneously 

contested claims. 


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20.407 Rule 407. Favorable Findings are not 

binding in Contested Claims. 

20.408–20.499 [Reserved] 

§ 20.400 Rule 400. Notification of the right 

to appeal in a simultaneously contested 

claim. 

All interested parties will be 

specifically notified of the action taken 

by the agency of original jurisdiction in 

a simultaneously contested claim and of 

the right and time limit for submitting 

a Notice of Disagreement to the Board, 

as well as hearing and representation 

rights. 

§ 20.401 Rule 401. Who can file an appeal 

in simultaneously contested claims. 

In simultaneously contested claims, 

any claimant or representative of a 

claimant may file a Notice of 

Disagreement within the time limits set 

out in Rule 402 (§ 20.402). 

(Authority: 38 U.S.C. 7105(b)(2), 7105A) 

§ 20.402 Rule 402. Time limits for filing 

Notice of Disagreement in simultaneously 

contested claims. 

In simultaneously contested claims, 

the Notice of Disagreement from the 

person adversely affected must be filed 

within 60 days from the date of mailing 

of the notification of the determination 

to him or her; otherwise, that 

determination will become final. 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 a 

Notice of Disagreement has been timely 

filed. 

(Authority: 38 U.S.C. 7105A) 

§ 20.403 Rule 403. Notice to contesting 

parties on receipt of Notice of Disagreement 

in simultaneously contested claims. 

Upon the filing of a Notice of 

Disagreement in a simultaneously 

contested claim, all interested parties 

and their representatives will be 

furnished a copy of the substance of the 

Notice of Disagreement. The notice will 

inform the contesting party or parties of 

what type of review the appellant who 

initially filed a Notice of Disagreement 

selected under § 20.202(b), including 

whether a hearing was requested. 

(Authority: 38 U.S.C. 7105A) 

§ 20.404 Rule 404. Time limit for response 

to appeal by another contesting party in a 

simultaneously contested claim. 

A party to a simultaneously contested 

claim may file a brief, argument, or 

request for a different type of review 

under § 20.202(b) in answer to a Notice 

of Disagreement filed by another 

contesting party. Any such brief, 

argument, or request must be filed with 

the Board within 30 days from the date 

the content of the Notice of 

Disagreement is furnished as provided 

in § 20.403. Such content will be 

presumed to have been furnished on the 

date of the letter that accompanies the 

content. 

(Authority: 38 U.S.C. 7105A(b)(1)) 

§ 20.405 Rule 405. Docketing of 

simultaneously contested claims at the 

Board. 

After expiration of the 30 day period 

for response in § 20.404, the Board will 

place all parties of the simultaneously 

contested claim on the docket for the 

type of review requested under 

§ 20.202(b). In the event the parties 

request different types of review, if any 

party requests a hearing the appeal will 

be placed on the docket described in 

§ 20.800(a)(iii), and VA will notify the 

parties that a hearing will be scheduled. 

If no party requested a hearing, but any 

party requested the opportunity to 

submit additional evidence, the appeal 

will be placed on the docket described 

in § 20.800(a)(ii), and the parties will be 

notified of their opportunity to submit 

additional evidence within 90 days of 

the date of such notice. 

(Authority: 38 U.S.C. 7105A(b)(1)) 

§ 20.406 Rule 406. Notices sent to last 

addresses of record in simultaneously 

contested claims. 

Notices in simultaneously contested 

claims will be forwarded to the last 

address of record of the parties 

concerned and such action will 

constitute sufficient evidence of notice. 

§ 20.407 Rule 407. Favorable Findings are 

not binding in Contested Claims. 

Where a claim is contested, findings 

favorable to either party, as described in 

Rule 801 (§ 20.801), are no longer 

binding on all agency of original 

jurisdiction and Board of Veterans’ 

Appeals adjudicators during the 

pendency of the contested appeal. 

(Authority: 38 U.S.C. 7105A(b)(2)) 

§§ 20.404–20.499 [Reserved] 

Subpart F—Legacy Appeal in 

Simultaneously Contested Claims 

■ 106. Revise the subpart F heading to 

read as set forth above. 

§§ 20.500 through 20.504 [Redesignated as 

§§ 20.501 through 20.505] 

■ 107. Redesignate §§ 20.500 through 

20.504 as §§ 20.501 through 20.505. 

■ 108. Add new § 20.500 to read as 

follows: 

§ 20.500 Rule 500. Applicability. 

The provisions of this subpart apply 

to legacy appeals, as defined in § 19.2 of 

this chapter. 

■ 109. Amend newly redesignated 

§ 20.501 by: 

■ a. Revising the section heading; 

■ b. Removing the words ‘‘Rule 501 

(§ 20.501 of this part)’’ and adding in 

their place the words ‘‘Rule 502 

(§ 20.502)’’; and 

■ c. Revising the authority citation at 

the end of the section. 

The revisions read as follows: 

§ 20.501 Rule 501. Who can file an appeal 

in simultaneously contested claims. 

* * * * * 

(Authority: 38 U.S.C. 7105(b)(2), 7105A 

(2016)) 

■ 110. Amend newly redesignated 

§ 20.502 by revising the section heading 

and the authority citations following 

paragraphs (a) through (c) to read as 

follows: 

§ 20.502 Rule 502. Time limits for filing 

Notice of Disagreement, Substantive 

Appeal, and response to Supplemental 

Statement of the Case in simultaneously 

contested claims. 

(a) * * * 

(Authority: 38 U.S.C. 7105A(a) (2016)) 

(b) * * * 

(Authority: 38 U.S.C. 7105A(b) (2016)) 

(c) * * * 

(Authority: 38 U.S.C. 38 U.S.C. 7105(d)(3), 

7105A(b) (2016)) 

■ 111. Amend newly redesignated 

§ 20.503 by revising the section heading 

and the authority citation at the end of 

the section to read as follows: 

§ 20.503 Rule 503. Time limit for response 

to appeal by another contesting party in a 

simultaneously contested claim. 

* * * * * 

(Authority: 38 U.S.C. 7105A(b) (2016)) 

■ 112. Amend newly redesignated 

§ 20.504, and amend by revising the 

section heading and the authority 

citation at the end of the section to read 

as follows: 

§ 20.504 Rule 504. Extension of time for 

filing a Substantive Appeal in 

simultaneously contested claims. 

* * * * * 

(Authority: 38 U.S.C. 7105A(b) (2016)) 

■ 113. Amend newly redesignated 

§ 20.505, and amend by revising the 

section heading and the authority 

citation at the end of the section to read 

as follows: 


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§ 20.505 Rule 505. Notices sent to last 

addresses of record in simultaneously 

contested claims. 

* * * * * 

(Authority: 38 U.S.C. 7105A(b) (2016)) 

Subpart G—Legacy Hearings on 

Appeal 

■ 114. Revise the subpart G heading to 

read as set forth above. 

§ 20.600 [Redesignated as § 20.5] 

■ 115. Redesignate § 20.600 as § 20.5. 

■ 116. Amend newly redesignated 

§ 20.5 by revising the section heading to 

read as follows: 

§ 20.5 Rule 5. Right to representation. 

* * * * * 

§ 20.608 [Redesignated as § 20.6] 

■ 117. Redesignate § 20.608 as § 20.6 

and revise it to read as follows:. 

§ 20.6 Rule 6. Withdrawal of services by a 

representative. 

(a)(1) Applicability. The restrictions 

on a representative’s right to withdraw 

contained in this paragraph apply only 

to those cases in which the 

representative has previously agreed to 

act as representative in an appeal. In 

addition to express agreement, orally or 

in writing, such agreement shall be 

presumed if the representative makes an 

appearance in the case by acting on an 

appellant’s behalf before the Board in 

any way after the appellant has 

designated the representative as such as 

provided in ‘‘§ 14.630 or § 14.631 of this 

chapter. The preceding sentence 

notwithstanding, an appearance in an 

appeal solely to notify the Board that a 

designation of representation has not 

been accepted will not be presumed to 

constitute such consent. 

(2) Procedures. Except as otherwise 

provided in paragraph (b) of this 

section, after an appeal to the Board of 

Veterans’ Appeals has been filed, a 

representative may not withdraw 

services as representative in the appeal 

unless good cause is shown on motion. 

Good cause for such purposes is the 

extended illness or incapacitation of an 

agent admitted to practice before the 

Department of Veterans Affairs, an 

attorney-at-law, or other individual 

representative; failure of the appellant 

to cooperate with proper preparation 

and presentation of the appeal; or other 

factors which make the continuation of 

representation impossible, impractical, 

or unethical. 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 the reason why 

withdrawal should be permitted, and a 

signed statement certifying that a copy 

of the motion was sent by first-class 

mail, postage prepaid, to the appellant, 

setting forth the address to which the 

copy was mailed. Such motions should 

not contain information which would 

violate privileged communications or 

which would otherwise be unethical to 

reveal. Such motions must be filed at 

the following address: Board of 

Veterans’ Appeals, P.O. Box 27063, 

Washington, DC 20038. The appellant 

may file a response to the motion with 

the Board at the same address not later 

than 30 days following receipt of the 

copy of the motion and must include a 

signed statement certifying that a copy 

of the response was sent by first-class 

mail, postage prepaid, to the 

representative, setting forth the address 

to which the copy was mailed. 

(b) Withdrawal of services prior to 

certification of a legacy appeal. A 

representative may withdraw services as 

representative in a legacy appeal at any 

time prior to certification of the appeal 

to the Board of Veterans’ Appeals by the 

agency of original jurisdiction by 

complying with the requirements of 

§ 14.631 of this chapter. 

(Approved by the Office of Management and 

Budget under control number 2900–0085) 

(Authority: 38 U.S.C. 5901–5904, 7105(a)) 

Subpart G—[Amended] 

■ 118. Remove the note to subpart G. 

■ 119. Add new § 20.600 to read as 

follows: 

§ 20.600 Rule 600. Applicability. 

(a) The provisions in this subpart 

apply to Board hearings conducted in 

legacy appeals, as defined in § 19.2 of 

this chapter. 

(b) Except as otherwise provided, 

Rules 700, 701, 704, 705, and 707–715 

(§§ 20.700, 20.701, 20.704, 20.705, and 

20.707–20.715) are also applicable to 

Board hearings conducted in legacy 

appeals. 

§ 20.608 [Reserved] 

■ 120. Add reserved § 20.606. 

Subpart H—Hearings on Appeal 

■ 121. Amend § 20.700 by revising 

paragraphs (a) and (b) and removing 

paragraphs (d) and (e). 

The revisions read as follows: 

§ 20.700 Rule 700. General. 

(a) Right to a hearing. A hearing on 

appeal will be granted if an appellant, 

or an appellant’s representative acting 

on his or her behalf, expresses a desire 

to testify before the Board. An appellant 

is limited to one Board hearing 

following the filing of a Notice of 

Disagreement with a decision of the 

agency of original jurisdiction. Requests 

for additional Board hearings may be 

granted for good cause shown. 

(b) Purpose of hearing. The purpose of 

a hearing is to receive argument and 

testimony relevant and material to the 

appellate issue or issues. It is 

contemplated that the appellant and 

witnesses, if any, will be present. A 

hearing will not normally be scheduled 

solely for the purpose of receiving 

argument by a representative. Such 

argument may be submitted in the form 

of a written brief. Requests for 

appearances by representatives alone to 

personally present argument to 

Members of the Board may be granted 

if good cause is shown. Whether good 

cause has been shown will be 

determined by the presiding Member 

assigned to conduct the hearing. 

* * * * * 

§ 20.704 [Redesignated as § 20.603] 

■ 122. Redesignate § 20.704 as § 20.603 

and revise it to read as follows: 

§ 20.603 Rule 603. Scheduling and notice 

of hearings conducted by the Board of 

Veterans’ Appeals at Department of 

Veterans Affairs field facilities in a legacy 

appeal. 

(a) General. Hearings may be 

conducted by a Member or Members of 

the Board during prescheduled visits to 

Department of Veterans Affairs facilities 

having adequate physical resources and 

personnel for the support of such 

hearings. Subject to paragraph (f) of this 

section, the hearings will be scheduled 

for each area served by a regional office 

in accordance with the place of each 

case on the Board’s docket, established 

under § 20.902, relative to other cases 

for which hearings are scheduled to be 

held within that area. 

(b) Notification of hearing. When a 

hearing at a Department of Veterans 

Affairs field facility is scheduled, the 

person requesting it will be notified of 

its time and place, and of the fact that 

the Government may not assume any 

expense incurred by the appellant, the 

representative, or witnesses attending 

the hearing. 

(c) Requests for changes in hearing 

dates. Requests for a change in a hearing 

date may be made at any time up to two 

weeks prior to the scheduled date of the 

hearing if good cause is shown. Such 

requests must be in writing, must 

explain why a new hearing date is 

necessary, and must be filed with the 


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Federal Register / Vol. 84, No. 13 / Friday, January 18, 2019 / Rules and Regulations 185 

Board. Examples of good cause include, 

but are not limited to, illness of the 

appellant and/or representative, 

difficulty in obtaining necessary 

records, and unavailability of a 

necessary witness. If good cause is 

shown, the hearing will be rescheduled 

for the next available hearing date after 

the appellant or his or her 

representative gives notice that the 

contingency which gave rise to the 

request for postponement has been 

removed. If good cause is not shown, 

the appellant and his or her 

representative will be promptly notified 

and given an opportunity to appear at 

the hearing as previously scheduled. If 

the appellant elects not to appear at the 

prescheduled date, the request for a 

hearing will be considered to have been 

withdrawn. In such cases, however, the 

record will be submitted for review by 

the Member who would have presided 

over the hearing. If the presiding 

Member determines that good cause has 

been shown, the hearing will be 

rescheduled for the next available 

hearing date after the contingency 

which gave rise to the request for 

postponement has been removed. 

(d) Failure to appear for a scheduled 

hearing. If an appellant (or when a 

hearing only for oral argument by a 

representative has been authorized, the 

representative) fails to appear for a 

scheduled hearing and a request for 

postponement has not been received 

and granted, the case will be processed 

as though the request for a hearing had 

been withdrawn. No further request for 

a hearing will be granted in the same 

appeal unless such failure to appear was 

with good cause and the cause for the 

failure to appear arose under such 

circumstances that a timely request for 

postponement could not have been 

submitted prior to the scheduled 

hearing date. A motion for a new 

hearing date following a failure to 

appear for a scheduled hearing must be 

in writing, must be filed within 15 days 

of the originally scheduled hearing date, 

and must explain why the appellant 

failed to appear for the hearing and why 

a timely request for a new hearing date 

could not have been submitted. Such 

motions must be filed with: Board of 

Veterans’ Appeals, P.O. Box 27063, 

Washington, DC 20038. Whether good 

cause for such failure to appear and the 

impossibility of timely requesting 

postponement have been established 

will be determined by the Member who 

would have presided over the hearing. 

If good cause and the impossibility of 

timely requesting postponement are 

shown, the hearing will be rescheduled 

for the next available hearing date at the 

same facility after the appellant or his 

or her representative gives notice that 

the contingency which gave rise to the 

failure to appear has been removed. 

(e) Withdrawal of hearing requests. A 

request for a hearing may be withdrawn 

by an appellant at any time before the 

date of the hearing. A request for a 

hearing may not be withdrawn by an 

appellant’s representative without the 

consent of the appellant. Notices of 

withdrawal must be submitted to the 

Board. 

(f) Advancement of the case on the 

hearing docket. A hearing may be 

scheduled at a time earlier than would 

be provided for under paragraph (a) of 

this section upon written motion of the 

appellant or the representative. The 

same grounds for granting relief, motion 

filing procedures, and designation of 

authority to rule on the motion specified 

in Rule 902(c) (§ 20.902(c)) for 

advancing a case on the Board’s docket 

shall apply. 

(Authority: 38 U.S.C. 7107; Sec. 102, Pub. 

114–315; 130 Stat. 1536) 

[Approved by the Office of Management and 

Budget under control number 2900–0085] 

§ 20.702 [Redesignated as § 20.704] 

■ 123. Redesignate § 20.702 as § 20.704. 

■ 124. Amend newly redesignated 

§ 20.704 by revising the section heading 

and paragraphs (a) and (c) through (e) 

and by adding paragraph (f) to read as 

follows: 

§ 20.704 Rule 704. Scheduling and notice 

of hearings conducted by the Board of 

Veterans’ Appeals. 

(a)(1) General. To the extent that 

officials scheduling hearings for the 

Board determine that necessary physical 

resources and qualified personnel are 

available, hearings will be scheduled at 

the convenience of appellants and their 

representatives, with consideration of 

the travel distance involved. Subject to 

paragraph (f) of this section, electronic 

hearings will be scheduled for each area 

served by a regional office in accordance 

with the place of each case on the 

Board’s docket, established under Rule 

801 (§ 20.801) for appeals and under 

Rule 902 (§ 20.902) for legacy appeals, 

relative to other cases for which 

hearings are scheduled to be held 

within that area. 

(2) Special provisions for legacy 

appeals. The procedures for scheduling 

and providing notice of Board hearings 

in legacy appeals conducted at a 

Department of Veterans Affairs facility 

having adequate physical resources and 

personnel for the support of such 

hearings under paragraph (a)(3) of Rule 

601 (§ 20.601(a)(3)) are contained in 

Rule 603 (§ 20.603). 

* * * * * 

(c) Requests for changes in hearing 

dates. Requests for a change in a hearing 

date may be made at any time up to two 

weeks prior to the scheduled date of the 

hearing if good cause is shown. Such 

requests must be in writing, must 

explain why a new hearing date is 

necessary, and must be filed with the 

Board. Examples of good cause include, 

but are not limited to, illness of the 

appellant and/or representative, 

difficulty in obtaining necessary 

records, and unavailability of a 

necessary witness. If good cause is 

shown, the hearing will be rescheduled 

for the next available hearing date after 

the appellant or his or her 

representative gives notice that the 

contingency which gave rise to the 

request for postponement has been 

removed. If good cause is not shown, 

the appellant and his or her 

representative will be promptly notified 

and given an opportunity to appear at 

the hearing as previously scheduled. If 

the appellant elects not to appear at the 

prescheduled date, the request for a 

hearing will be considered to have been 

withdrawn. In such cases, however, the 

record will be submitted for review by 

the Member who would have presided 

over the hearing. If the presiding 

Member determines that good cause has 

been shown, the hearing will be 

rescheduled for the next available 

hearing date after the contingency 

which gave rise to the request for 

postponement has been removed. 

(d) Failure to appear for a scheduled 

hearing. If an appellant (or when a 

hearing only for oral argument by a 

representative has been authorized, the 

representative) fails to appear for a 

scheduled hearing and a request for 

postponement has not been received 

and granted, the case will be processed 

as though the request for a hearing had 

been withdrawn. No further request for 

a hearing will be granted in the same 

appeal unless such failure to appear was 

with good cause and the cause for the 

failure to appear arose under such 

circumstances that a timely request for 

postponement could not have been 

submitted prior to the scheduled 

hearing date. A motion for a new 

hearing date following a failure to 

appear for a scheduled hearing must be 

in writing, must be filed within 15 days 

of the originally scheduled hearing date, 

and must explain why the appellant 

failed to appear for the hearing and why 

a timely request for a new hearing date 

could not have been submitted. Such 

motions must be filed with: Board of 


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186 Federal Register / Vol. 84, No. 13 / Friday, January 18, 2019 / Rules and Regulations 

Veterans’ Appeals, P.O. Box 27063, 

Washington, DC 20038. Whether good 

cause for such failure to appear and the 

impossibility of timely requesting 

postponement have been established 

will be determined by the Member who 

would have presided over the hearing. 

If good cause and the impossibility of 

timely requesting postponement are 

shown, the hearing will be rescheduled 

for the next available hearing date at the 

same facility after the appellant or his 

or her representative gives notice that 

the contingency which gave rise to the 

failure to appear has been removed. 

(e) Withdrawal of hearing requests. A 

request for a hearing may be withdrawn 

by an appellant at any time before the 

date of the hearing. A request for a 

hearing may not be withdrawn by an 

appellant’s representative without the 

consent of the appellant. Notices of 

withdrawal must be submitted to the 

Board. 

(f) Advancement of the case on the 

hearing docket. A hearing may be 

scheduled at a time earlier than would 

be provided for under paragraph (a) of 

this section upon written motion of the 

appellant or the representative. The 

same grounds for granting relief, motion 

filing procedures, and designation of 

authority to rule on the motion specified 

in Rule 902(c) (§ 20.902(c)) for 

advancing a case on the Board’s docket 

shall apply. 

(Authority: 38 U.S.C. 7107) 

[Approved by the Office of Management and 

Budget under control number 2900–0085] 

■ 125. Add new § 20.702 to read as 

follows: 

§ 20.702 Rule 702. Methods by which 

hearings are conducted. 

A hearing on appeal before the Board 

may be held by one of the following 

methods: 

(a) In person at the Board’s principal 

location in Washington, DC, or 

(b) By electronic hearing, through 

picture and voice transmission, with the 

appellant appearing at a Department of 

Veterans Affairs facility. 

(Authority: 38 U.S.C. 7102, 7105(a), 7107) 

§ 20.703 [Redesignated as § 20.602] 

■ 126. Redesignate § 20.703 as § 20.602 

and revise it to read as follows: 

§ 20.602 Rule 602. When a hearing before 

the Board of Veterans’ Appeals may be 

requested in a legacy appeal; procedure for 

requesting a change in method of hearing. 

(a) How to request a hearing. An 

appellant, or an appellant’s 

representative, may request a hearing 

before the Board when submitting the 

substantive appeal (VA Form 9) or 

anytime thereafter, subject to the 

restrictions in Rule 1305 (§ 20.1305). 

Requests for such hearings before a 

substantive appeal has been filed will be 

rejected. 

(b) Board’s determination of method 

of hearing. Following the receipt of a 

request for a hearing, the Board shall 

determine, for purposes of scheduling 

the hearing for the earliest practical 

date, whether a hearing before the Board 

will be held at its principal location or 

at a facility of the Department or other 

appropriate Federal facility located 

within the area served by a regional 

office of the Department. The Board 

shall also determine whether the 

hearing will occur by means of an 

electronic hearing or by the appellant 

personally appearing before a Board 

member or panel. An electronic hearing 

will be in lieu of a hearing held by 

personally appearing before a Member 

or panel of Members of the Board and 

shall be conducted in the same manner 

as, and considered the equivalent of, 

such a hearing. 

(c) Notification of method of hearing. 

The Board will notify the appellant and 

his or her representative of the method 

of a hearing before the Board. 

(d) How to request a change in 

method of hearing. Upon notification of 

the method of the hearing requested 

pursuant to paragraph (c) of this section, 

an appellant may make one request for 

a different method of the requested 

hearing. If the appellant makes such a 

request, the Board shall grant the 

request and notify the appellant of the 

change in method of the hearing. 

(e) Notification of scheduling of 

hearing. The Board will notify the 

appellant and his or her representative 

of the scheduled time and location for 

the requested hearing not less than 30 

days prior to the hearing date. This time 

limitation does not apply to hearings 

which have been rescheduled due to a 

postponement requested by an 

appellant, or on his or her behalf, or due 

to the prior failure of an appellant to 

appear at a scheduled hearing before the 

Board with good cause. The right to 

notice at least 30 days in advance will 

be deemed to have been waived if an 

appellant accepts an earlier hearing date 

due to the cancellation of another 

previously scheduled hearing. 

(Authority: Sec. 102, Pub. L. 114–315; 130 

Stat. 1536) 

■ 127. Add new § 20.703 to read as 

follows: 

§ 20.703 Rule 703. When a hearing before 

the Board of Veterans’ Appeals may be 

requested; procedure for requesting a 

change in method of hearing. 

(a) How to request a hearing. An 

appellant, or an appellant’s 

representative, may request a hearing 

before the Board when submitting the 

Notice of Disagreement, or when 

requesting to modify the Notice of 

Disagreement, as provided in Rule 202 

(§ 20.202). Requests for such hearings at 

any other time will be rejected. 

(b) Board’s determination of method 

of hearing. Following the receipt of a 

request for a hearing, the Board shall 

determine, for purposes of scheduling 

the hearing for the earliest practical 

date, whether a hearing before the Board 

will be held at its principal location or 

by picture and voice transmission at a 

facility of the Department located 

within the area served by a regional 

office of the Department. 

(c) Notification of method of hearing. 

The Board will notify the appellant and 

his or her representative of the method 

of a hearing before the Board. 

(d) How to request a change in 

method of hearing. If an appellant 

declines to participate in the method of 

hearing selected by the Board, the 

appellant’s opportunity to participate in 

a hearing before the Board shall not be 

affected. Upon notification of the 

method of the hearing requested 

pursuant to paragraph (c) of this section, 

an appellant may make one request for 

a different method of the requested 

hearing. If the appellant makes such a 

request, the Board shall grant the 

request and notify the appellant of the 

change in method of the hearing. 

(e) Notification of scheduling of 

hearing. The Board will notify the 

appellant and his or her representative 

of the scheduled time and location for 

the requested hearing not less than 30 

days prior to the hearing date. This time 

limitation does not apply to hearings 

which have been rescheduled due to a 

postponement requested by an 

appellant, or on his or her behalf, or due 

to the prior failure of an appellant to 

appear at a scheduled hearing before the 

Board of Veterans’ Appeals with good 

cause. The right to notice at least 30 

days in advance will be deemed to have 

been waived if an appellant accepts an 

earlier hearing date due to the 

cancellation of another previously 

scheduled hearing. 

(Authority: 38 U.S.C. 7105(a), 7107) 

§ 20.705 [Redesignated as § 20.601] 

■ 128. Redesignate § 20.705 as § 20.601 

and revise it to read as follows: 

§ 20.601 Rule 601. Methods by which 

hearings in legacy appeals are conducted; 

scheduling and notice provisions for such 

hearings. 

(a) Methods by which hearings in 

legacy appeals are conducted. A hearing 


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on appeal before the Board may be held 

by one of the following methods: 

(1) In person at the Board’s principal 

location in Washington, DC; 

(2) By electronic hearing, through 

voice transmission or through picture 

and voice transmission, with the 

appellant appearing at a Department of 

Veterans Affairs facility or appropriate 

Federal facility; or 

(3) At a Department of Veterans 

Affairs facility having adequate physical 

resources and personnel for the support 

of such hearings. 

(b) Electronic hearings. An 

appropriate Federal facility consists of a 

Federal facility having adequate 

physical resources and personnel for the 

support of such hearings. 

(c) Provisions for scheduling and 

providing notice of hearings in legacy 

appeals. 

(1) The procedures for scheduling and 

providing notice of Board hearings in 

legacy appeals conducted by the 

methods described in paragraphs (a)(1) 

and (a)(2) of this section are contained 

in Rule 704 (§ 20.704). 

(2) The procedures for scheduling and 

providing notice of Board hearings in 

legacy appeals conducted at a 

Department of Veterans Affairs facility 

having adequate physical resources and 

personnel for the support of such 

hearings under (a)(3) are contained in 

Rule 603 (§ 20.603). 

(Authority: 38 U.S.C. 7107; Sec. 102, Pub. L. 

114–315; 130 Stat. 1536) 

§ 20.706 [Redesignated as § 20.705] 

■ 129. Redesignate § 20.706 as § 20.705 

and revise it to read as follows: 

§ 20.705 Rule 705. Functions of the 

presiding Member. 

(a) General. The presiding Member is 

responsible for the conduct of a Board 

hearing in accordance with the 

provisions of subparts G and H of this 

part. 

(b) Duties. The duties of the presiding 

Member include, but are not limited to, 

any of the following: 

(1) Conducting a prehearing 

conference, pursuant to § 20.707; 

(2) Ruling on questions of procedure; 

(3) Administering the oath or 

affirmation; 

(4) Ensuring that the course of the 

Board hearing remains relevant to the 

issue or issues on appeal; 

(5) Setting reasonable time limits for 

the presentation of argument; 

(6) Prohibiting cross-examination of 

the appellant and any witnesses; 

(7) Determining whether documentary 

evidence, testimony, and/or argument is 

relevant or material to the issue or 

issues being considered and not unduly 

repetitious; 

(8) Terminating a Board hearing or 

directing that an offending party, 

representative, witness, or observer 

leave the hearing if that party persists or 

engages in disruptive or threatening 

behavior; 

(9) Disallowing or halting the use of 

personal recording equipment being 

used by an appellant or representative if 

it becomes disruptive to the hearing; 

and 

(10) Taking any other steps necessary 

to maintain good order and decorum. 

(c) Ruling on motions. The presiding 

Member has the authority to rule on any 

Board hearing-related motion. 

(Authority: 38 U.S.C. 501) 

■ 130. Add new § 20.706 to read as 

follows: 

§ 20.706 Rule 706. Designation of Member 

or Members to conduct the hearing. 

Hearings will be conducted by a 

Member or panel of Members of the 

Board. Where a proceeding has been 

assigned to a panel, the Chairman, or 

the Chairman’s designee, shall designate 

one of the Members as the presiding 

Member. 

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

§ 20.707 [Redesignated as § 20.604] 

■ 131. Redesignate § 20.707 as § 20.604. 

■ 132. Amend newly redesignated 

§ 20.604 and amend by: 

■ a. Revising the section heading; 

■ c. Removing the words ‘‘§ 19.3 of this 

part’’ and add in their place the words 

‘‘Rule 106 (§ 20.106)’’; 

■ d. Removing the words ‘‘§ 19.11(c) of 

this part’’ and add in their place the 

words ‘‘Rule 1004 (§ 20.1004)’’; and 

■ e. Adding an authority citation to the 

end of the setion. 

The revision and addition read as 

follows: 

§ 20.604 Rule 604. Designation of Member 

or Members to conduct the hearing in a 

legacy appeal. 

* * * * * 

(Authority: 38 U.S.C. 7102; 38 U.S.C. 7101 

(2016)) 

§ 20.708 [Redesignated as § 20.707] 

■ 133. Redesignate § 20.708 as § 20.707. 

■ 134. Amend newly redesignated 

§ 20.707 and amend by: 

■ a. Revisng the section heading; 

■ b. Removing the second sentence; and 

■ c. Adding an authority citation to the 

end of the section. 

The revision and addtions read as 

follows: 

§ 20.707 Rule 707. Prehearing conference. 

* * * * * 

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

§ 20.709 [Redesignated as § 20.605] 

■ 135. Redesignate § 20.709 as § 20.605. 

■ 136. Amend newly redesignated 

§ 20.605 by revising the section heading 

and adding an authority citation to the 

end of the section to read as follows: 

§ 20.605 Rule 605. Procurement of 

additional evidence following a hearing in a 

legacy appeal. 

* * * * * 

(Authority: 38 U.S.C. 7102; 38 U.S.C. 7105, 

7101 (2016)) 

§ 20.710 [Redesignated as § 20.708] 

■ 137. Redesignate § 20.710 as § 20.708. 

■ 138. Amend newly redesignated 

20.708 by revising the section heading 

to read as follows: 

§ 20.708 Rule 708. Witness at hearings. 

* * * * * 

§ 20.711 [Redesignated as § 20.709] 

■ 139. Redesignate § 20.711 as § 20.709. 

■ 140. Amend newly redesignated 

§ 20.709: 

■ a. By revising the section heading; and 

■ b. In paragraph (c), by removing the 

words ‘‘Director, Office of Management, 

Planning and Analysis (014),’’. 

The revision reads as follows: 

§ 20.709 Rule 709, Subpoenas. 

* * * * * 

§ 20.712 [Redesignated as § 20.710] 

■ 141. Redesignate § 20.712 as § 20.710. 

■ 142. Amend newly redesignated 

20.710 by revising the section heading 

to read as follows: 

§ 20.710 Rule 710. Expenses of appellants, 

representatives, and witnesses incident to 

hearings not reimbursable by the 

Government. 

* * * * * 

§ 20.713 [Redesignated as § 20.711] 

■ 143. Redesignate § 20.713 as § 20.711. 

■ 144. Amend newly redesignated 

§ 20.711 by revising paragraph (b) to 

read as follows: 

§ 20.711 Rule 711. Hearings in 

simultaneously contested claims. 

* * * * * 

(b) Requests for changes in hearing 

dates. (1) General. Except as described 

in paragraphs (b)(2) and (3) of this 

section, any party to a simultaneously 

contested claim may request a change in 

a hearing date in accordance with the 

provisions of Rule 704, paragraph (c) 

(§ 20.704(c)). 

(2)(i) A request under Rule 704, 

paragraph (c) must be made within 60 

days from the date of the letter of 

notification of the time and place of the 


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hearing, or not later than two weeks 

prior to the scheduled hearing date, 

whichever is earlier. 

(ii) In order to obtain a new hearing 

date under the provisions of Rule 704, 

paragraph (c) (§ 20.704(c)), the consent 

of all other interested parties must be 

obtained and submitted with the request 

for a new hearing date. If such consent 

is not obtained, the date of the hearing 

will become fixed. After a hearing date 

has become fixed, an extension of time 

for appearance at a hearing will be 

granted only for good cause, with due 

consideration of the interests of other 

parties. Examples of good cause include, 

but are not limited to, illness of the 

appellant and/or representative, 

difficulty in obtaining necessary 

records, and unavailability of a 

necessary witness. The motion for a new 

hearing date must be in writing and 

must explain why a new hearing date is 

necessary. If good cause is shown, the 

hearing will be rescheduled for the next 

available hearing date after the 

appellant or his or her representative 

gives notice that the contingency which 

gave rise to the request for 

postponement has been removed. 

Ordinarily, however, hearings will not 

be postponed more than 30 days. 

Whether good cause for establishing a 

new hearing date has been shown will 

be determined by the presiding Member 

assigned to conduct the hearing. 

(3) A copy of any motion for a new 

hearing date required by these rules 

must be mailed to all other interested 

parties by certified mail, return receipt 

requested. The receipts, which must 

bear the signatures of the other 

interested parties, and a letter 

explaining that they relate to the motion 

for a new hearing date and containing 

the applicable Department of Veterans 

Affairs file number must be filed at the 

same address where the motion was 

filed as proof of service of the motion. 

Each interested party will be allowed a 

period of 10 days from the date that the 

copy of the motion was received by that 

party to file written argument in 

response to the motion. 

(Authority: 38 U.S.C. 7105A) 

§ 20.714 [Redesignated as § 20.712] 

■ 145. Redesignate § 20.714 as § 20.712 

and revise it to read as follows: 

§ 20.712 Rule 712. Record of hearing. 

(a) General. All Board hearings will be 

recorded. The Board will prepare a 

written transcript for each Board 

hearing conducted. The transcript will 

be the official record of the hearing and 

will be incorporated as a part of the 

record on appeal. The Board will not 

accept alternate transcript versions 

prepared by the appellant or 

representative. 

(b) Hearing recording. The recording 

of the Board hearing will be retained for 

a period of 12 months following the date 

of the Board hearing as a duplicate 

record of the proceeding. 

(c) Copy of written transcript. If the 

appellant or representative requests a 

copy of the written transcript in 

accordance with § 1.577 of this chapter, 

the Board will furnish one copy to the 

appellant or representative. 

§ 20.715 [Redesignated as § 20.713] 

■ 146. Redesignate § 20.715 as § 20.713. 

■ 147. Amend newly redesignated 

§ 20.713 by: 

■ a. Revising the section heading; 

■ b. Revising the fourth sentence 

■ c. Removing the fifth sentence; and 

■ d. Revising the authority citation at 

the end of the section. 

The revisions read as follows: 

§ 20.713 Rule 713. Recording of hearing by 

appellant or representative. 

* * * In all such situations, advance 

arrangements must be made with the 

Board of Veterans’ Appeals, P.O. Box 

27063, Washington, DC 20038. 

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

§ 20.716 [Redesignated as § 20.714] 

■ 148. Redesignate § 20.716 as § 20.714 

and revise it to read as follows: 

§ 20.714 Rule 714. Correction of hearing 

transcripts. 

If an appellant wishes to seek 

correction of perceived errors in a 

hearing transcript, the appellant or his 

or her representative should move for 

correction of the hearing transcript 

within 30 days after the date that the 

transcript is mailed to the appellant. 

The motion must be in writing and must 

specify the error, or errors, in the 

transcript and the correct wording to be 

substituted. The motion must be filed 

with the Board of Veterans’ Appeals, 

P.O. Box 27063, Washington, DC 20038. 

The ruling on the motion will be made 

by the presiding Member of the hearing. 

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

§ 20.717 [Redesignated as § 20.715] 

■ 149. Redesignate § 20.717 as § 20.715 

and revise it to read as follows: 

§ 20.715 Rule 715. Loss of hearing 

recordings or transcripts—request for new 

hearing. 

(a) Notification. (1) The Board must 

notify the appellant and his or her 

representative in writing in the event 

the Board discovers that a Board hearing 

has not been recorded in whole or in 

part due to equipment failure or other 

cause, or the official transcript of the 

hearing is lost or destroyed and the 

recording upon which it was based is no 

longer available. The notice must 

provide the appellant with a choice of 

either of the following options: 

(i) Appear at a new Board hearing, 

pursuant to Rules 703 and 704 

(§§ 20.703 and 20.704) for appeals or 

Rules 602 and 603 (§§ 20.602 and 

20.603) for legacy appeals, as defined in 

§ 19.2 of this chapter; or 

(ii) Have the Board proceed to 

appellate review of the appeal based on 

the evidence of record. 

(2) The notice will inform the 

appellant that he or she has a period of 

30 days to respond to the notice. If the 

appellant does not respond by 

requesting a new hearing within 30 days 

from the date of the mailing of the 

notice, then the Board will decide the 

appeal on the basis of the evidence of 

record. A request for a new Board 

hearing will not be accepted once the 

Board has issued a decision on the 

appeal. 

(b) Board decision issued prior to a 

loss of the recording or transcript. The 

Board will not accept a request for a 

new Board hearing under this section if 

a Board decision was issued on an 

appeal prior to the loss of the recording 

or transcript of a Board hearing, and the 

Board decision considered testimony 

provided at that Board hearing. 

(Authority: 38 U.S.C. 7102, 7105(a), 7107) 

§§ 20.716 and 20.717 [Reserved] 

■ 150. Add reserved §§ 20.716 and 

20.717. 

§ 20.901 [Redesignated as § 20.906] 

■ 151. Redesignate § 20.901 as § 20.906. 

§ 20.902 [Redesignated as § 20.907] 

■ 152. Redesignate § 20.902 as § 20.907. 

§ 20.800 [Redesignated as § 20.901] 

■ 153. Redesignate § 20.800 as 

§ 20.901.153. 

■ 154. Revise the subpart I heading and 

add new § 20.800 and §§ 20.801 through 

20.804 to read as follows: 

Subpart I—Appeals Processing 

20.800 Rule 800. Order of consideration of 

appeals. 

20.801 Rule 801. The decision. 

20.802 Rule 802. Remand for correction of 

error. 

20.803 Rule 803. Content of Board decision, 

remand, or order in simultaneously 

contested claims. 

20.804 Rule 804. Opinions of the General 

Counsel. 

* * * * * 


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§ 20.800 Rule 800. Order of consideration 

of appeals. 

(a) Docketing of appeals. (1) 

Applications for review on appeal are 

docketed in the order in which they are 

received on the following dockets: 

(i) A docket for appeals in which an 

appellant does not request a hearing or 

an opportunity to submit additional 

evidence on the Notice of Disagreement; 

(ii) A docket for appeals in which the 

appellant does not request a hearing but 

does request an opportunity to submit 

additional evidence on the Notice of 

Disagreement; and 

(iii) A docket for appeals in which the 

appellant requests a hearing on the 

Notice of Disagreement. 

(2) An appeal may be moved from one 

docket to another only when the Notice 

of Disagreement has been modified 

pursuant to Rule 202, paragraph (c)(3) 

(§ 20.202(c)(3)). The request to modify 

the Notice of Disagreement must reflect 

that the appellant requests the option 

listed in § 20.202(b) that corresponds to 

the docket to which the appeal will be 

moved. An appeal that is moved from 

one docket to another will retain its 

original docket date. 

(b) Except as otherwise provided, 

each appeal will be decided in the order 

in which it is entered on the docket to 

which it is assigned. 

(c) Advancement on the docket—(1) 

Grounds for advancement. A case may 

be advanced on the docket to which it 

is assigned on the motion of the 

Chairman, the Vice Chairman, a party to 

the case before the Board, or such 

party’s representative. Such a motion 

may be granted only if the case involves 

interpretation of law of general 

application affecting other claims, if the 

appellant is seriously ill or is under 

severe financial hardship, or if other 

sufficient cause is shown. ‘‘Other 

sufficient cause’’ shall include, but is 

not limited to, administrative error 

resulting in a significant delay in 

docketing the case, administrative 

necessity, or the advanced age of the 

appellant. For purposes of this Rule, 

‘‘advanced age’’ is defined as 75 or more 

years of age. This paragraph does not 

require the Board to advance a case on 

the docket in the absence of a motion of 

a party to the case or the party’s 

representative. 

(2) Requirements for motions. Motions 

for advancement on the docket must be 

in writing and must identify the specific 

reason(s) why advancement on the 

docket is sought, the name of the 

veteran, the name of the appellant if 

other than the veteran (e.g., a veteran’s 

survivor, a guardian, a substitute 

appellant, or a fiduciary appointed to 

receive VA benefits on an individual’s 

behalf), and the applicable Department 

of Veterans Affairs file number. The 

motion must be filed with the Board of 

Veterans’ Appeals, P.O. Box 27063, 

Washington, DC 20038. 

(3) Disposition of motions. If a motion 

is received prior to the assignment of 

the case to an individual member or 

panel of members, the ruling on the 

motion will be by the Vice Chairman, 

who may delegate such authority to a 

Deputy Vice Chairman. If a motion to 

advance a case on the docket is denied, 

the appellant and his or her 

representative will be immediately 

notified. If the motion to advance a case 

on the docket is granted, that fact will 

be noted in the Board’s decision when 

rendered. 

(d) Consideration of appeals 

remanded by the United States Court of 

Appeals for Veterans Claims. A case 

remanded by the United States Court of 

Appeals for Veterans Claims for 

appropriate action will be treated 

expeditiously by the Board without 

regard to its place on the Board’s docket. 

(Authority: 38 U.S.C. 7112; Sec. 302,103–446; 

108 Stat. 4645) 

(e) Case remanded to correct duty to 

assist error and new Notice of 

Disagreement filed after readjudication. 

A case will not be returned to the Board 

following the agency of original 

jurisdiction’s readjudication of an 

appeal previously remanded by the 

Board pursuant to Rule 803, paragraph 

(c) (§ 20.802(c)), unless the claimant 

files a new Notice of Disagreement. 

Such cases will be docketed in the order 

in which the most recent Notice of 

Disagreement was received. 

(f) Cases involving substitution. A 

case returned to the Board following the 

grant of a substitution request or 

pursuant to an appeal of a denial of a 

substitution request assumes the same 

place on the docket held by the 

deceased appellant at the time of his or 

her death. If the deceased appellant’s 

case was advanced on the docket prior 

to his or her death pursuant to 

paragraph (c) of this section, the 

substitute will receive the benefit of the 

advanced placement. 

(Authority: 38 U.S.C. 5121A) 

(g) Postponement to provide hearing. 

Any other provision of this Rule 

notwithstanding, a case may be 

postponed for later consideration and 

determination if such postponement is 

necessary to afford the appellant a 

hearing. 

(Authority: 38 U.S.C. 7105, 7107) 

§ 20.801 Rule 801. The decision. 

(a) General. Decisions of the Board 

will be based on a de novo review of the 

evidence of record at the time of the 

agency of original jurisdiction decision 

on the issue or issues on appeal, and 

any additional evidence submitted 

pursuant to Rules 302 and 303 

(§§ 20.302 and 20.303). Any findings 

favorable to the claimant as identified 

by the agency of original jurisdiction in 

notification of a decision or in a prior 

Board decision on an issue on appeal 

are binding on all agency of original 

jurisdiction and Board of Veterans’ 

Appeals adjudicators, unless rebutted 

by evidence that identifies a clear and 

unmistakable error in the favorable 

finding. For purposes of this section, 

findings means conclusions on 

questions of fact and application of law 

to facts made by an adjudicator 

concerning the issue under review. 

(b) Content. The decision of the Board 

will be in writing and will set forth 

specifically the issue or issues under 

appellate consideration. Except with 

respect to appeals which are dismissed 

because an appellant seeking 

nonmonetary benefits has died while 

the appeal was pending, the decision 

will also include: 

(1) Findings of fact and conclusions of 

law on all material issues of fact and 

law presented on the record; 

(2) The reasons or bases for those 

findings and conclusions; 

(3) A general statement reflecting 

whether any evidence was received at a 

time when not permitted under subpart 

D, and informing the appellant that any 

such evidence was not considered by 

the Board and of the options available 

to have that evidence reviewed by the 

Department of Veterans Affairs; and 

(4) An order granting or denying the 

benefit or benefits sought on appeal, 

dismissing the appeal, or remanding the 

issue or issues as described in Rule 802 

(§ 20.802). 

(c) Panel decision. A decision by a 

panel of Members will be by a majority 

vote of the panel Members. 

(Authority: 38 U.S.C. 7104(d)) 

§ 20.802 Rule 802. Remand for correction 

of error. 

(a) Remand. Unless the issue or issues 

can be granted in full, the Board shall 

remand the appeal to the agency of 

original jurisdiction for correction of an 

error on the part of the agency of 

original jurisdiction to satisfy its duties 

under 38 U.S.C. 5103A, if the error 

occurred prior to the date of the agency 

of original jurisdiction decision on 

appeal. The Board may remand for 

correction of any other error by the 

agency of original jurisdiction in 


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190 Federal Register / Vol. 84, No. 13 / Friday, January 18, 2019 / Rules and Regulations 

satisfying a regulatory or statutory duty, 

if correction of the error would have a 

reasonable possibility of aiding in 

substantiating the appellant’s claim. The 

remand must specify the action to be 

taken by the agency of original 

jurisdiction. 

(b) Advisory Medical Opinion. If the 

Board determines that an error as 

described in paragraph (a) of this 

section may only be corrected by 

obtaining an advisory medical opinion 

from a medical expert who is not an 

employee of the Department of Veterans 

Affairs, the Board shall remand the case 

to the agency of original jurisdiction to 

obtain such an opinion, specifying the 

questions to be posed to the 

independent medical expert providing 

the advisory medical opinion. 

(c) Action by agency of original 

jurisdiction after receipt of remand. 

After correction of any error identified 

in the Board’s remand, the agency of 

original jurisdiction must readjudicate 

the claim and provide notice of the 

decision under 38 U.S.C. 5104, to 

include notice under 38 U.S.C. 5104C of 

a claimant’s options for further review 

of the agency of original jurisdiction’s 

decision. The agency of original 

jurisdiction must provide for the 

expeditious treatment of any claim that 

is remanded by the Board. 

(Authority: 38 U.S.C. 5103A, 5109, 5109B, 

7102, 7104(a), 7105) 

§ 20.803 Rule 803. Content of Board 

decision, remand, or order in 

simultaneously contested claims. 

The content of the Board’s decision, 

remand, or order in appeals involving a 

simultaneously contested claim will be 

limited to information that directly 

affects the issues involved in the 

contested claim. Appellate issues that 

do not involve all of the contesting 

parties will be addressed in one or more 

separate written decisions, remands, or 

orders that will be furnished only to the 

appellants concerned and their 

representatives, if any. 

(Authority: 5 U.S.C. 552a(b), 38 U.S.C. 

5701(a)) 

§ 20.804 Rule 804. Opinions of the General 

Counsel. 

(a) The Board may obtain an opinion 

from the General Counsel of the 

Department of Veterans Affairs on legal 

questions involved in the consideration 

of an appeal. 

(b) Filing of requests for the 

procurement of opinions. The appellant 

or representative may request that the 

Board obtain an opinion under this 

section. Such request must be in writing 

and will be granted upon a showing of 

good cause, such as the identification of 

a complex or controversial legal issue 

involved in the appeal which warrants 

such an opinion. 

(c) Notification of evidence to be 

considered by the Board and 

opportunity for response. If the Board 

requests an opinion pursuant to this 

section, it 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. 

(d) For purposes of this section, the 

term ‘‘the Board’’ includes the 

Chairman, the Vice Chairman, any 

Deputy Vice Chairman, and any 

Member of the Board before whom a 

case is pending. 

(Authority: 38 U.S.C. 5107(a), 7102(c), 

7104(a), 7104(c)) 

Subpart J—Action by the Board in 

Legacy Appeals 

■ 155. Revise the subpart J heading to 

read as set forth above. 

§ 20.900 [Redesignated as § 20.902] 

■ 156. Redesignate § 20.900 as § 20.902. 

■ 157. Add new § 20.900 to read as 

follows: 

§ 20.900 Rule 900. Applicability. 

The provisions in this subpart apply 

to Board decisions and remands 

rendered in legacy appeals, as defined 

in § 19.2 of this chapter. 

(Authority: Sec. 2,115–55; 131 Stat. 1105) 

■ 158. Amend newly redesignated 

§ 20.901 by revising the section heading 

and the authority citation at the end of 

the section to read as follows: 

§ 20.901 Rule 901. Submission of 

additional evidence after initiation of 

appeal. 

* * * * * 

(Authority: 38 U.S.C. 5902, 5903, 5904; 38 

U.S.C. 5904, 7105(d)(1) (2016)) 

■ 159. Amend newly redesignated 

§ 20.902: 

■ a. By revising the section heading; 

■ b. By revising the third sentence in 

paragraph (c)(1); 

■ c. In paragraph (c)(2), by removing the 

words ‘‘Director, Office of Management, 

Planning and Analysis (014),’’; and 

■ d. Revising the authority citations at 

the end of paragraph (d) and at the end 

of the section. 

The revisions read as follows: 

§ 20.902 Rule 902. Order of consideration 

of appeals. 

* * * * * 

(c) * * * 

(1) * * * ‘‘Other sufficient cause’’ 

shall include, but is not limited to, 

administrative error resulting in a 

significant delay in docketing the case, 

administrative necessity, or the 

advanced age of the appellant. * * * 

* * * * * 

(d) * * * 

(Authority: Sec. 302, Pub. L. 103–446; 108 

Stat. 4645) 

* * * * * 

(Authority: 38 U.S.C. 5121A, 7107; 38 U.S.C. 

7107 (2016)) 

§ 20.1002 [Removed] 

■ 160. Remove § 20.1002. 

§§ 20.1000 and 20.1001 [Redesignated as 

§§ 20.1001 and 20.1002] 

■ 161. Redesignate §§ 20.1000 and 

20.1001 as §§ 20.1001 and 20.1002, 

respectively. 

■ 162. Amend newly redesignated 

§ 20.906: 

■ a. By revising the section heading; and 

■ b. In paragraph (b), by removing the 

words ‘‘Armed Forces Institute of 

Pathology’’ and adding in its place the 

words ‘‘Joint Pathology Center’’ both 

places it appears. 

The revision reads as follows: 

§ 20.906 Rule 906. Medical opinions and 

opinions of the General Counsel. 

* * * * * 

■ 163. Amend newly redesignate 

§ 20.907 by: 

■ a. Revising the section heading; and 

■ b. Removing the words ‘‘Rule 901 

(§ 20.901 of this part)’’ and adding in its 

place the words ‘‘Rule 906 (§ 20.906)’’. 

The revision reads as follows: 

§ 20.907 Rule 907. Filing of requests for 

the procurement of opinions. 

* * * * * 

■ 164. Amend newly redesignated 

§ 20.908: 

■ a. By revising the section heading; 

■ b. In paragraph (a), by removing the 

words ‘‘Rule 901 (§ 20.901 of this part)’’ 

and adding in its place the words ‘‘Rule 

906 (§ 20.906)’’; and 

■ c. In paragraph (b)(1), by removing the 

words ‘‘§ 19.9(d)(5) of this chapter’’ and 

adding in its place the words ‘‘Rule 

904(d)(5) (§ 20.904(d)(5))’’. 

The revision reads as follows: 


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§ 20.908 Rule 908. Notification of evidence 

to be considered by the Board and 

opportunity for response. 

* * * * * 

Subpart K—Vacatur and 

Reconsideration 

■ 165. Revise the subpart K heading to 

read as set forth above. 

■ 166. Amend newly redesignated 

§ 20.1000 by revising the section 

heading and paragraphs (a)(2) and (3) to 

read as follows: 

§ 20.1000 Rule 1000. Vacating a decision. 

* * * * * 

(a) * * * 

(1) * * * 

(2) When there was a prejudicial 

failure to afford the appellant a personal 

hearing. (Where there was a failure to 

honor a request for a hearing and a 

hearing is subsequently scheduled, but 

the appellant fails to appear, the 

decision will not be vacated.), and 

(3) For a legacy app7al, as defined in 

§ 19.2 of this chapter, when a Statement 

of the Case or required Supplemental 

Statement of the Case was not provided. 

* * * * * 

■ 167. Amend newly redesignated 

§ 20.1001 and amend by: 

■ a. Revising the section; and 

■ b. Removing the words ‘‘and material’’ 

from paragraph (b). 

The revision reads as follows: 

§ 20.1001 Rule 1001. When 

reconsideration is accorded. 

* * * * * 

■ 168. Amend newly redesignated 

§ 20.1002 and amend by: 

■ a. Revising the section heading; 

■ b. Removing the words ‘‘Director, 

Office of Management, Planning and 

Analysis (014),’’ in paragraph (b); and 

■ c. Removing the words ‘‘§ 19.11 of this 

chapter’’ and adding in its place the 

words ‘‘Rule 1004 (§ 20.1004)’’ in 

paragraph (c)(2). 

The revision reads as follows: 

§ 20.1002 Rule 1002. Filing and disposition 

of motion for reconsideration. 

* * * * * 

■ 169. Amend § 20.1003 by revising the 

first sentence and removing the fifth 

sentence. 

The revision reads as follows: 

§ 20.1003 Rule 1003. Hearing on 

reconsideration. 

After a motion for reconsideration has 

been allowed, a hearing will be granted 

if the issue under reconsideration was 

considered on a docket for cases that 

may include a hearing, and an appellant 

requests a hearing before the 

Board. * * * 

Subpart L—Finality 

■ 170. Revise § 20.1103 to read as 

follows: 

§ 20.1103 Rule 1103. Finality of 

determinations of the agency of original 

jurisdiction where issue is not appealed. 

A determination on a claim by the 

agency of original jurisdiction of which 

the claimant is properly notified is final 

if an appeal is not perfected as 

prescribed in § 19.52 of this chapter. If 

no Notice of Disagreement is filed as 

prescribed in subpart C of this part, the 

claim shall not thereafter be 

readjudicated or allowed, except as 

provided by 38 U.S.C. 5104B or 5108, or 

by regulation. 

■ 171. Revise § 20.1105 to read as 

follows: 

§ 20.1105 Rule 1105. Supplemental claim 

after promulgation of appellate decision. 

(a) After an appellate decision has 

been promulgated on a claim, a claimant 

may file a supplemental claim with the 

agency of original jurisdiction by 

submitting the prescribed form with 

new and relevant evidence related to the 

previously adjudicated claim as set forth 

in § 3.2601 of this chapter, except in 

cases involving simultaneously 

contested claims under Subpart E of this 

part. 

(Authority: 38 U.S.C. 5108, 7104) 

(b) Legacy appeals pending on the 

effective date. For legacy appeals as 

defined in § 19.2 of this chapter, where 

prior to the effective date described in 

Rule 4 (§ 20.4), an appellant requested 

that a claim be reopened after an 

appellate decision has been 

promulgated and submitted evidence in 

support thereof, a determination as to 

whether such evidence is new and 

material must be made and, if it is, as 

to whether it provides a basis for 

allowing the claim. An adverse 

determination as to either question is 

appealable. 

(Authority: 38 U.S.C. 5108, 7104 (2016)) 

Subpart M—Privacy Act 

§ 20.1201 [Amended] 

■ 172. Amend § 20.1201 by removing 

the words ‘‘Rules 1000 through 1003 

(§§ 20.1000–20.1003 of this part)’’ and 

adding in its place the words ‘‘Rules 

1001 through 1004 (§§ 20.1001– 

20.1004)’’ both places it appears. 

Subpart N—Miscellaneous 

■ 173. Amend § 20.1301: 

■ a. By revising paragraph (a); 

■ b. By redesignating paragraph (b) as 

paragraph (c); 

■ c. By adding new paragraph (b); 

■ d. By removing the text ‘‘the internet 

at http://www.index.va.gov/search/va/ 

bva.html’’ and adding in its place the 

text ‘‘the Board’s website’’ in newly 

redesignated paragraph (c)(1); and 

■ c. In newly redesignated paragraph 

(c)(2) by: 

■ i. Removing the words ‘‘at the 

Research Center’’ from the second 

sentence; 

■ ii. Removing the words ‘‘Board’s 

Research Center’’ and adding in its 

place the words ‘‘Board’’ from the third 

sentence; 

■ iii. Removing the word ‘‘paper’’ from 

the ninth sentence; and 

■ iv. Removing the words ‘‘Research 

Center (01C1),’’ from the last sentence. 

The revisions and additions read as 

follows: 

§ 20.1301 Rule 1301. Disclosure of 

information. 

(a) Policy. It is the policy of the Board 

for the full text of appellate decisions to 

be disclosed to appellants. In those 

situations where disclosing certain 

information directly to the appellant 

would not be in conformance with 38 

U.S.C. 5701, that information will be 

removed from the decision and the 

remaining text will be furnished to the 

appellant. A full-text appellate decision 

will be disclosed to the designated 

representative, however, unless the 

relationship between the appellant and 

representative is such (for example, a 

parent or spouse) that disclosure to the 

representative would be as harmful as if 

made to the appellant. 

(b) Legacy appeals. For legacy appeals 

as defined in § 19.2 of this chapter, the 

policy described in paragraph (a) of this 

section is also applicable to Statements 

of the Case and supplemental 

Statements of the Case. 

(Authority: 38 U.S.C. 7105(d)(2)) 

* * * * * 

§ 20.1302 [Amended] 

■ 174. Amend § 20.1302 in paragraph 

(a) by removing the words ‘‘Rule 900 

(§ 20.900(a)(2)’’ and adding in its place 

the words ‘‘Rule 800, paragraph (f) 

(§ 20.800(f)) or, for legacy appeals, Rule 

902, paragraph (a)(2) (§ 20.902(a)(2))’’ 

both places it appears. 

§ 20.1304 [Redesignated as § 20.1305] 

■ 175. Redesignate § 20.1304 as 

§ 20.1305. 

■ 176. Add new § 20.1304 to read as 

follows: 

§ 20.1304 Rule 1304. Request for a change 

in representation. 

(a) Request for a change in 

representation within 90 days following 

Notice of Disagreement. An appellant 


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and his or her representative, if any, 

will be granted a period of 90 days 

following receipt of a Notice of 

Disagreement, or up to and including 

the date the appellate decision is 

promulgated by the Board, whichever 

comes first, during which they may 

submit a request for a change in 

representation. 

(b) Subsequent request for a change in 

representation. Following the expiration 

of the period described in paragraph (a) 

of this section, the Board will not accept 

a request for a change in representation 

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; and withdrawal of an 

individual representative. 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) or the name of any substitute 

claimant or appellant; the applicable 

Department of Veterans Affairs file 

number; and an explanation of why the 

request for a change in representation 

could not be accomplished in a timely 

manner. Such motions must be filed at 

the following address: Board of 

Veterans’ Appeals, P.O. Box 27063, 

Washington, DC 20038. Depending 

upon the ruling on the motion, action 

will be taken as follows: 

(1) Good cause not shown. If good 

cause is not shown, the request for a 

change in representation will be referred 

to the agency of original jurisdiction for 

association with the appellant’s file for 

any pending or subsequently received 

claims upon completion of the Board’s 

action on the pending appeal without 

action by the Board concerning the 

request. 

(2) Good cause shown. If good cause 

is shown, the request for a change in 

representation will be honored. 

(Authority: 38 U.S.C. 5902, 5903, 5904, 7105, 

7105A) 

■ 177. Amend newly redesignated 

§ 20.1305: 

■ a. By revising the section heading and 

paragraph (a); 

■ b. In paragraph (b)(1) introductory 

text, by removing the words ‘‘Director, 

Office of Management, Planning and 

Analysis (014),’’; 

■ c. In paragraph (b)(2), by removing the 

words ‘‘§ 20.903 of this chapter’’ and 

adding in their place ‘‘§ 20.908’’; and 

■ d. In paragraph (c), by removing the 

words ‘‘§ 20.903’’ and adding in their 

place the words ‘‘§ 20.908’’; 

■ e. Revising the authority citation at 

the end of the section. 

The revisions read as follows: 

§ 20.1305 Rule 1305. Procedures for 

legacy appellants to request a change in 

representation, 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 in a legacy 

appeal, as defined in § 19.2 of this 

chapter, 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 up to and including the 

date the appellate decision is 

promulgated by the Board, 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 should 

be submitted directly to the Board and 

not to the agency of original 

jurisdiction. If any such request or 

additional evidence is submitted to the 

agency of original jurisdiction instead of 

to the Board, the agency of original 

jurisdiction must forward it to the Board 

in accordance with § 19.37(b) of this 

chapter. 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. 

* * * * * 

(Authority: 38 U.S.C. 5121A, 5902, 5903; 38 

U.S.C. 5904, 7104, 7105, 7105A (2016)) 

§§ 20.1306–20.1399 [Reserved] 

■ 178. Add reserved §§ 20.1306 through 

20.1399. 

Subpart O—Revision of Decisions on 

Grounds of Clear and Unmistakable 

Error 

§ 20.1401 [Amended] 

■ 179. Amend § 20.1401 by removing 

the words ‘‘, but does not include 

officials authorized to file 

administrative appeals pursuant to 

§ 19.51 of this title’’ in the last sentence 

of paragraph (b). 

■ 180. Amend § 20.1403 by revising 

paragraph (b)(2) to read as follows: 

§ 20.1403 Rule 1403. What constitutes 

clear and unmistakable error; what does 

not. 

* * * * * 

(b) * * * 

(2) Special rule for Board decisions on 

legacy appeals issued on or after July 

21, 1992. For a Board decision on a 

legacy appeal as defined in § 19.2 of this 

chapter issued on or after July 21, 1992, 

the record that existed when that 

decision was made includes relevant 

documents possessed by the Department 

of Veterans Affairs not later than 90 

days before such record was transferred 

to the Board for review in reaching that 

decision, provided that the documents 

could reasonably be expected to be part 

of the record. 

* * * * * 

§ 20.1404 [Amended] 

■ 181. Amend § 20.1404 in paragraph 

(c) by removing ‘‘Director, Office of 

Management, Planning and Analysis 

(014),’’. 

■ 182. Amend § 20.1405: 

■ a. In paragraph (a)(1), by removing the 

words ‘‘§ 19.3 of this title’’ and adding 

in their place ‘‘§ 20.106’’; 

■ b. In paragraph (a)(2), by removing the 

words ‘‘Rule 900(c) (§ 20.900(c) of this 

part)’’ and adding in their place the 

words ‘‘Rule 800, paragraph (c) 

(§ 20.800(c)) or, for legacy appeals, Rule 

902, paragraph (c) (§ 20.902(c))’’; 

■ c. In paragraph (c)(2), by removing the 

words ‘‘Director, Office of Management, 

Planning and Analysis (014),’’; 

■ d. By removing paragraph (d); 

■ e. By redesignating paragraph (e) as 

paragraph (d); 

■ f. By redesignating paragraph (f) as 

paragraph (e); 

■ g. By redesignating paragraph (g) as 

paragraph (f); and 

■ h. By revising the first sentence of the 

newly redesignated paragraph (f). 

The revision reads as follows: 

§ 20.1405 Rule 1405. Disposition. 

* * * * * 


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(f) * * * The decision of the Board on 

a motion under this subpart will be in 

writing. * * * 

* * * * * 

§ 20.1408 [Amended] 

■ 183. Amend § 20.1408 by removing 

the words ‘‘Rule 3(o) (§ 20.3(o) of this 

part)’’ and adding in its place the words 

‘‘Rule 3(l) (§ 20.3(l) of this part)’’ from 

the first sentence. 

§ 20.1409 [Amended] 

■ 184. Amend § 20.1409 in paragraph 

(b) by removing the words ‘‘Rule 

1405(e)’’ and adding in its place the 

words ‘‘Rule 1405, paragraph (d) 

(§ 20.1405(d) of this part)’’. 

■ 185. Amend § 20.1411 by revising 

paragraphs (b) and (d) to read as 

follows: 

§ 20.1411 Rule 1411. Relationship to other 

statutes. 

* * * * * 

(b) For legacy appeals as defined in 

§ 19.2 of this chapter, a motion under 

this subpart is not a claim subject to 

reopening under 38 U.S.C. 5108 (prior 

to the effective date described in Rule 4, 

paragraph (a) (§ 20.4(a) of this part) 

(relating to reopening claims on the 

grounds of new and material evidence). 

* * * * * 

(d) A motion under this subpart is not 

a claim for benefits subject to the 

requirements and duties associated with 

38 U.S.C. 5103A (imposing a duty to 

assist). 

* * * * * 

§§ 20.1412—20.1499 [Reserved] 

■ 186. Add reserved §§ 20.1412 through 

20.1499. 

Subpart P—[Removed and Reserved] 

■ 187. Remove and reserve subpart P, 

consisting of §§ 20.1500–20.1510. 

Appendix A to Part 20 [Removed] 

■ 188. Remove appendix A to part 20. 

PART 21—VOCATIONAL 

REHABILITATION AND EMPLOYMENT 

Subpart A—Vocational Rehabilitation 

and Employment Under 38 U.S.C. 

Chapter 31 

■ 189. The authority citation for part 21, 

subpart A, continues to read as follows: 

Authority: 38 U.S.C. 501(a), chs. 18, 31, 

and as noted in specific sections. 

§ 21.59 [Removed] 

■ 190. Remove § 21.59. 

§ 21.98 [Removed] 

■ 191. Remove § 21.98. 

§ 21.184 [Amended] 

■ 192. Amend § 21.184 by removing the 

CROSS REFERENCE paragraph from the 

end of the section. 

§ 21.188 [Amended] 

■ 193. Amend § 21.188 in paragraph (b) 

by removing the words ‘‘§ 21.96, or 

§ 21.98’’ and adding in their place the 

words ‘‘or § 21.96’’. 

§ 21.190 [Amended] 

■ 194. Amend § 21.190 in paragraph (b) 

by removing the words ‘‘§ 21.96, or 

§ 21.98’’ and adding in their place the 

words ‘‘or § 21.96’’. 

§ 21.192 [Amended] 

■ 195. Amend § 21.192 in paragraph (b) 

by removing the words ‘‘§ 21.96, or 

§ 21.98’’ and adding in their place the 

words ‘‘or § 21.96’’. 

§ 21.194 [Amended] 

■ 196. Amend § 21.194 in paragraph (b) 

by removing the words ‘‘§ 21.94 and 

21.98’’ and adding in their place the 

words ‘‘and § 21.94’’. 

§ 21.282 [Amended] 

■ 197. Amend § 21.282 in paragraph 

(c)(4) by removing ‘‘21.98’’ and adding 

in its place ‘‘21.96’’. 

§ 21.412 [Amended] 

■ 198. Amend § 21.412 in paragraph 

(a)(2) by removing the words ‘‘(See 

§§ 19.153, 19.154, and 19.155’’. 

■ 199. Amend § 21.414: 

■ a. In paragraph (e), by removing the 

period following ‘‘§ 3.105(e)’’ and 

adding in its place a semicolon; 

■ b. By adding paragraph (f); and 

■ c. Revising the authority citation at 

the end of the section. 

The addition and revision read as 

follows: 

§ 21.414 Revision of decision. 

* * * * * 

(f) Review of decisions, § 21.416. 

(Authority: 38 U.S.C. 5104B, 5108, and 5112) 

■ 200. Add § 21.416 before the 

undesignated center heading ‘‘Informing 

the Veteran’’ to read as follows: 

§ 21.416 Review of decisions. 

(a) Applicability. This section applies 

where notice of a decision under this 

subpart or subpart M of this part was 

provided to a claimant or his/her 

representative on or after the effective 

date of the modernized review system as 

provided in § 19.2(a) of this chapter, or 

where a claimant has elected review of 

a legacy claim under the modernized 

review system as provided in § 3.2400(c) 

of this chapter. 

(b) Reviews available. Within one year 

from the date on which VA issues notice 

of a decision on an issue contained 

within a claim, a claimant may elect one 

of the following administrative review 

options: 

(1) Supplemental Claim. The nature 

of this review will accord with § 3.2501 

of this chapter, except that a complete 

application in writing on a form 

prescribed by the Secretary will not be 

required and a hearing will not be 

provided. 

(2) Appeal to the Board of Veterans’ 

Appeals. See 38 CFR part 20. 

(3) Higher-level Review. The nature of 

this review will accord with § 3.2601. 

(c) Notice requirements. Notice of a 

decision made under paragraph (b)(1) or 

(3) of this section will include all of the 

elements described in § 21.420(b). 

(Authority: 38 U.S.C. 5104B, 5108, 5109A, 

and 7105) 

■ 201. Amend § 21.420 by revising 

paragraphs (b) and (d), adding 

paragraph (e), and revising the authority 

citation at the end of the section to read 

as follows: 

§ 21.420 Informing the veteran. 

* * * * * 

(b) Notification: Each notification 

should include the following: 

(1) Identification of the issues 

adjudicated. 

(2) A summary of the evidence 

considered by the Secretary. 

(3) A summary of the applicable laws 

and regulations relevant to the decision. 

(4) Identification of findings favorable 

to the veteran. 

(5) In the case of a denial of a claim, 

identification of elements not satisfied 

leading to the denial. 

(6) An explanation of how to obtain 

or access evidence used in making the 

decision. 

(7) A summary of the applicable 

review options available for the veteran 

to seek further review of the decision. 

* * * * * 

(d) Prior notification of adverse 

action. VA shall give the veteran a 

period of at least 30 days to review, 

prior to its promulgation, an adverse 

action other than one which arises as a 

consequence of a change in training 

time or other such alteration in 

circumstances. During that period, the 

veteran shall be given the opportunity 

to: 

(1) Meet informally with a 

representative of VA; 

(2) Review the basis for VA decision, 

including any relevant written 

documents or material; and 

(3) Submit to VA any material which 

he or she may have relevant to the 

decision. 

(e) Favorable findings. Any finding 

favorable to the veteran is binding on all 


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subsequent agency of original 

jurisdiction and Board of Veterans’ 

Appeals adjudicators, unless rebutted 

by evidence that identifies a clear and 

unmistakable error in the favorable 

finding. 

(Authority: 38 U.S.C. 3102, 5104, 5104A, and 

7105) 

§ 21.430 [Amended] 

■ 202. Amend § 21.430 in paragraph (b) 

by removing ‘‘21.98’’ and adding in its 

place ‘‘21.96’’. 

Subpart B—Claims and Applications 

for Educational Assistance 

■ 203. The authority citation for part 21, 

subpart B is revised to read as follows: 

Authority: 38 U.S.C. 501(a). 

§ 21.1033 [Amended] 

■ 204. Amend § 21.1033 in paragraph 

(f)(2) by removing the text ‘‘§§ 20.302 

and 20.305’’ and adding in its place the 

text ‘‘§§ 20.203 and 20.110’’. 

■ 205. Revise § 21.1034 to read as 

follows: 

§ 21.1034 Review of decisions. 

(a) Decisions. A claimant may request 

a review of a decision on eligibility or 

entitlement to educational assistance 

under title 38, United States Code. A 

claimant may request review of a 

decision on entitlement to educational 

assistance under 10 U.S.C. 510, and 10 

U.S.C. chapters 106a, 1606, and 1607. A 

claimant may not request review of a 

decision on eligibility under 10 U.S.C. 

510, and 10 U.S.C. chapters 106a, 1606, 

and 1607 or for supplemental or 

increased educational assistance under 

10 U.S.C. 16131(i) or 38 U.S.C. 3015(d), 

3021, or 3316 to VA as the Department 

of Defense solely determines eligibility 

to supplemental and increased 

educational assistance under these 

sections. 

(b) Reviews available. Except as 

provided in paragraph (d) of this 

section, within one year from the date 

on which the agency of original 

jurisdiction issues notice of a decision 

described in paragraph (a) of this 

section as subject to a request for 

review, a claimant may elect one of the 

following administrative review 

options: 

(1) Supplemental Claim Review. See 

§ 3.2501 of this chapter. 

(2) Higher-level Review. See § 3.2601 

of this chapter. 

(3) Board of Veterans’ Appeals 

Review. See 38 CFR part 20. 

(c) Part 3 provisions. See § 3.2500(b)– 

(d) of this chapter for principles that 

generally apply to a veteran’s election of 

review of a decision described in 

paragraph (a) of this section as subject 

to a request for review. 

(d) Contested claims. See subpart E of 

part 20 of this title for the timeline 

pertaining to contested claims. 

(e) Applicability. This section applies 

where notice of a decision described in 

paragraph (a) of this section was 

provided to a veteran on or after the 

effective date of the modernized review 

system as provided in § 19.2(a) of this 

chapter, or where a veteran has elected 

review of a legacy claim under the 

modernized review system as provided 

in § 3.2400(c) of this chapter. 

(Authority: 38 U.S.C. 501, 5104B) 

■ 206. Add § 21.1035 to read as follows: 

§ 21.1035 Legacy review of benefit claims 

decisions. 

(a) A claimant who has filed a Notice 

of Disagreement with a decision 

described in § 21.1034(a) that does not 

meet the criteria of § 21.1034(e) of this 

chapter has a right to a review under 

this section. The review will be 

conducted by the Educational Officer of 

the Regional Processing Officer, at VA’s 

discretion. An individual who did not 

participate in the decision being 

reviewed will conduct this review. Only 

a decision that has not yet become final 

(by appellate decision or failure to 

timely appeal) may be reviewed. Review 

under this section will encompass only 

decisions with which the claimant has 

expressed disagreement in the Notice of 

Disagreement. The reviewer will 

consider all evidence of record and 

applicable law, and will give no 

deference to the decision being 

reviewed. 

(b) Unless the claimant has requested 

review under this section with his or 

her Notice of Disagreement, VA will, 

upon receipt of the Notice of 

Disagreement, notify the claimant in 

writing of his or her right to a review 

under this section. To obtain such a 

review, the claimant must request it not 

later than 60 days after the date VA 

mails the notice. This 60-day time limit 

may not be extended. If the claimant 

fails to request review under this section 

not later than 60 days after the date VA 

mails the notice, VA will proceed with 

the legacy appeal process by issuing a 

Statement of the Case. A claimant may 

not have more than one review under 

this section of the same decision. 

(c) The reviewer may conduct 

whatever development he or she 

considers necessary to resolve any 

disagreements in the Notice of 

Disagreement, consistent with 

applicable law. This may include an 

attempt to obtain additional evidence or 

the holding of an informal conference 

with the claimant. Upon the request of 

the claimant, the reviewer will conduct 

a hearing under the version of § 3.103(c) 

of this chapter predating Public Law 

115–55. 

(d) A review decision made under this 

section will include a summary of the 

evidence, a citation to pertinent laws, a 

discussion of how those laws affect the 

decision, and a summary of the reasons 

for the decision. 

(e) The reviewer may grant a benefit 

sought in the claim, notwithstanding 

§ 3.105(b) of this chapter. The reviewer 

may not revise the decision in a manner 

that is less advantageous to the claimant 

than the decision under review, except 

that the reviewer may reverse or revise 

(even if disadvantageous to the 

claimant) prior decisions of an agency of 

original jurisdiction (including the 

decision being reviewed or any prior 

decision that has become final due to 

failure to timely appeal) on the grounds 

of clear and unmistakable error (see 

§ 3.105(a) of this chapter). 

(f) Review under this section does not 

limit the appeal rights of a claimant. 

Unless a claimant withdraws his or her 

Notice of Disagreement as a result of 

this review process, VA will proceed 

with the legacy appeal process by 

issuing a Statement of the Case. 

(Authority: 38 U.S.C. 5109A and 7105(d)) 

Subpart I—Temporary Program of 

Vocational Training for Certain New 

Pension Recipients 

§ 21.6058 [Amended] 

■ 207. Amend § 21.6058(b) by removing 

‘‘21.59’’ and adding in its place 

‘‘21.416’’. 

§ 21.6080 [Amended] 

■ 208. Amend § 21.6080: 

■ a. In paragraph (a), by removing the 

text ‘‘21.96 and 21.98’’ and adding its 

place the text ‘‘and 21.96’’. 

■ b. In paragraph (d)(3), by removing 

‘‘21.98’’ and adding in its place 

‘‘21.416’’. 

[FR Doc. 2018–28350 Filed 1–17–19; 8:45 am] 

BILLING CODE 8320–01–P 


khammond on DSK30JT082PROD with RULES2