39818 Federal Register / Vol. 83, No. 155 / Friday, August 10, 2018 / Proposed Rules 

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: Proposed rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) is proposing to amend its 

claims adjudication, appeals, and Rules 

of Practice of the Board of Veterans’ 

Appeals (Board) regulations. In 

addition, VA proposes to revise its 

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 is 

needed to implement the Veterans 

Appeals Improvement and 

Modernization Act. That law amended 

the procedures applicable to 

administrative review and appeal of VA 

decisions denying claims for benefits, 

creating a new, modernized review 

system. 

Unless otherwise specified, VA 

intends to make the proposed regulatory 

changes applicable to 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. 

DATES: Comments must be received by 

VA on or before October 9, 2018 to be 

considered in the formulation of the 

final rule. 

ADDRESSES: Written comments may be 

submitted through www.Regulations.

gov; by mail or hand-delivery to 

Director, Regulation Policy and 

Management (00REG), Department of 

Veterans Affairs, 810 Vermont Avenue 

NW, Room 1063B, Washington, DC 

20420; or by fax to (202) 273–9026. 

Comments should indicate that they are 

submitted in response to ‘‘RIN 2900– 

AQ26—VA Claims and Appeals 

Modernization.’’ Copies of comments 

received will be available for public 

inspection in the Office of Regulation 

Policy and Management, Room 1063B, 

between the hours of 8:00 a.m. and 4:30 

p.m., Monday through Friday (except 

holidays). Please call (202) 461–4902 for 

an appointment. This is not a toll-free 

number. In addition, during the 

comment period, comments may be 

viewed online through the Federal 

Docket Management System (FDMS) at 

www.Regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Veterans Benefits Administration 

information: 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 tollfree number). Board of Veterans’ 

Appeals information: 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 tollfree number). 

SUPPLEMENTARY INFORMATION: 

Modernizing the appeals process is a 

top priority for VA. In fiscal year (FY) 

2017, claimants generally waited less 

than 125 days for an initial decision on 

VA disability compensation claims; 

however, they waited an average of 3 

years for a final decision if they chose 

to appeal. Moreover, in FY2017 those 

claimants who chose to continue their 

appeal to the Board waited an average 

of 7 years for a decision from the date 

that they initiated their appeal, and the 

Board decision may not have resolved 

the appeal. 

Public Law (Pub. L.) 115–55, the 

Veterans Appeals Improvement and 

Modernization Act of 2017 (hereinafter 

‘‘Pub. L. 115–55’’) provides muchneeded comprehensive reform for the 

legacy appeals process, to help ensure 

that claimants receive a timely decision 

on review where they disagree with a 

VA claims adjudication. It replaces the 

current VA appeals process with a new 

review process that makes sense for 

veterans, their advocates, VA, and 

stakeholders. 

In the current VA appeal process, 

which is set in law, appeals are nonlinear and may require VA staff to 

engage in gathering and receiving 

evidence and re-adjudicating appeals 

based on new evidence. This process of 

gathering evidence and readjudication 

can add years to the appeals process, as 

appeals churn between the Board and 

the agency of original jurisdiction. 

Additionally, jurisdiction of appeals 

processing is shared between the Board 

and the agency of original jurisdiction, 

which, for purposes of the changes 

made by this proposed rule, is typically 

the Veterans Benefits Administration 

(VBA). 

The new statutory appeals framework 

features three differentiated lanes from 

which a claimant may choose in seeking 

review of a VA denial (or partial denial) 

of a claim. One lane is for review of the 

same evidence by a higher-level claims 

adjudicator in the agency of original 

jurisdiction (higher-level review); one 

lane is for submitting new and relevant 

evidence with a supplemental claim to 

the agency of original jurisdiction 

(supplemental claim); and one lane is 

the appeals lane for seeking review by 

a Veterans Law Judge at the Board by 

filing a Notice of Disagreement (appeal 

to the Board). In an appeal to the Board, 

Public Law 115–55 eliminates 

intermediate and duplicative steps 

previously required, such as the 

Statement of the Case (SOC) and the 

substantive appeal. Furthermore, the 

new law will allow the Board to 

maintain three separate dockets for 

handling the following categories of 

appeals: (1) Appeals where the claimant 

has requested a hearing, (2) appeals 

with no request for a hearing but where 

the claimant elects to submit other 

forms of evidence, and (3) appeals 

where the claimant requests Board 

review on the same evidence that was 

before the agency of original 

jurisdiction. These separate dockets will 

allow the Board to more efficiently and 

effectively manage distinctly different 

types of work. As a result of the new 

lane options, claimants will have 

increased choice for resolving 

disagreements with a VA decision on a 

claim. 

In addition, the differentiated lanes 

will allow the agency of original 

jurisdiction to be the claim development 

entity within VA and the Board to be 

the appeals entity. This design is 

intended to reduce the uncertainty 

caused by the current process, in which 

a claimant initiates an appeal in the 

agency of original jurisdiction and the 

appeal is often a years-long continuation 

of the claim development process. It 

ensures that all claim development by 

the agency of original jurisdiction 

occurs in the context of either an initial 

or supplemental claim filed with the 

agency of original jurisdiction, rather 

than in an appeal. 

The agency of original jurisdiction’s 

duty to assist in developing evidence 

will continue to apply when a claimant 

initiates a new or supplemental claim. 

However, where a claimant seeks review 

of an agency of original jurisdiction 

decision, the duty to assist generally no 

longer applies, unless and until the 

claimant elects to file a supplemental 

claim, at which point the duty to assist 

applies to the supplemental claim. The 

proposed regulations also contain a 

mechanism to correct any duty to assist 

errors occurring before the agency of 

original jurisdiction, if such errors are 

discovered on review or appeal, by 

requiring that the claim be returned to 


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the agency of original jurisdiction for 

correction of the error, unless the 

maximum benefit is granted. The 

proposed regulations require claim 

decision notices to be clearer and more 

detailed. The improved notices will 

help claimants and their advocates 

make informed choices as to which 

review option makes the most sense. 

The statutory requirements, which we 

propose to codify in these proposed 

regulations, provide a claimant who is 

not fully satisfied with the result of any 

review lane one year 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, but it helped the claimant 

understand what evidence was 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 without fearing loss of the 

effective date for choosing to go to the 

Board first. 

The differentiated lane framework 

required by statute and proposed to be 

codified 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 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 VBA or other claims 

adjudication agency. 

To ensure that as many claimants as 

possible benefit from the streamlined 

features of the new process, Public Law 

115–55 and the proposed regulations 

provide opportunities for claimants and 

appellants in the legacy system to take 

advantage of the new system. Some 

claimants who receive a decision prior 

to the effective date of the law will be 

able to participate in the new system. 

Other claimants who receive an SOC or 

Supplemental Statement of the Case 

(SSOC) in a legacy appeal after the 

effective date of the law will also have 

an opportunity to opt-in to the new 

system. 

VA initially met in March 2016 with 

Veterans Service Organizations (VSOs), 

congressional staff, and other 

stakeholders to develop a plan to reform 

the current appeals process. The result 

of this collaborative work was a new 

appeals framework, with the same 

fundamental features as the process 

described in section 2 of Public Law 

115–55. This new process will provide 

veterans with timely, fair, and high 

quality decisions. The engagement of 

those organizations that participated in 

the March 2016 ‘‘Appeals Summit’’ 

ultimately led to a stronger proposal, as 

VA was able to incorporate stakeholder 

feedback and benefit from the 

perspective of those with extensive 

experience in helping veterans navigate 

the complex VA appeals process. 

In November 2017, VA again met with 

stakeholders to highlight important 

changes required by the new law, 

answered questions, and discussed 

specific concerns. VA is grateful to all 

of the stakeholders for their 

contributions of time, energy, and 

expertise in this effort. 

The majority of amendments 

addressed in this proposed rule are 

mandatory to comply with the law. 

Through careful collaboration with VA, 

VSOs, and other stakeholders, in 

enacting Public Law 115–55, Congress 

provided a highly detailed statutory 

framework for claims and appeals 

processing. VA is unable to alter 

proposed amendments that directly 

implement mandatory statutory 

provisions. In addition to implementing 

mandatory requirements, VA proposes a 

few interpretive or gap-filling 

amendments to the regulations which 

are not specifically mandated by Public 

Law 115–55, but that VA believes are in 

line with the law’s goals to streamline 

and modernize the claims and appeals 

process. These amendments fill gaps in 

the new law left by Congress, reduce 

unnecessary regulations, streamline and 

modernize processes, and improve 

services for Veterans. 

This proposed rule contains 

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

and 21, as described in detail below. 

Part 3—Adjudication 

VA proposes to amend the regulations 

in 38 CFR part 3 as described in the 

section-by-section supplementary 

information below. These regulations 

govern the adjudication of claims for 

monetary benefits (e.g., compensation, 

pension, dependency and indemnity 

compensation, and burial benefits), 

which are administered by the VBA. 

Other VA agencies of original 

jurisdiction may have adopted portions 

of these regulations, or their content, 

with respect to their adjudication and 

review processes. 

§ 3.1 Definitions. 

VA proposes to amend the definition 

of ‘‘claim’’ in § 3.1(p), to add definitions 

of the terms ‘‘initial claim’’ and 

‘‘supplemental claim,’’ as the 

distinction between those terms is 

significant under the changes made by 

Public Law 115–55, which provides for 

the filing and adjudication of 

supplemental claims and adds a 

definition of supplemental claim at 38 

U.S.C. 101(36). VA proposes to define 

an ‘‘initial claim’’ as a claim for a 

benefit other than a supplemental claim, 

including the first filing by a claimant 

(original claim) and a subsequent claim 

filed by a claimant for an increase in a 

disability evaluation, a new benefit, or 

a new disability. The definition of a 

claim for increase is moved into this 

section from § 3.160 and is expanded to 

more accurately reflect the nature of 

such claims. 

Public Law 115–55, section 2(a), 

defines ‘‘supplemental claim’’ as ‘‘a 

claim for benefits under laws 

administered by the Secretary filed by a 

claimant who had previously filed a 

claim for the same or similar benefits on 

the same or similar basis.’’ The 

Secretary is required to readjudicate the 

claim if new and relevant evidence is 

presented or secured with respect to a 

supplemental claim. VA proposes to 

clarify in the regulatory definition of 

supplemental claim that VA must have 

issued a decision with respect to the 

previously filed claim before a 

supplemental claim can be filed. The 

inclusion of this requirement for a 

supplemental claim is consistent with 

the language of 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.’’ This language presupposes that 

VA has already adjudicated the claim 

and issued a notice of decision before a 

supplemental claim is filed. 

With the inclusion of additional 

definitions under § 3.1(p), VA proposes 

to amend the cross references to include 

a reference to supplemental claims 

under the new § 3.2501. 

§ 3.103 Procedural Due Process and 

Other Rights 

Under 38 U.S.C. 5104(a), when VA 

makes a decision affecting the provision 

of benefits to a claimant, VA must 

provide the claimant and his or her 

representative with notice of the 

decision. Under current 38 U.S.C. 


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5104(b), in any case where VA denies 

the benefit sought, that notice must 

include a statement of the reasons for 

the decision and a summary of the 

evidence considered by VA. 

Public Law 115–55 revised 38 U.S.C. 

5104(b) to specify that each notice 

provided under section 5104(a) must 

include all of the following: 

Identification of the issues adjudicated; 

a summary of the evidence considered 

by VA; a summary of applicable laws 

and regulations; identification of 

findings favorable to the claimant; in the 

case of a denial, identification of 

elements not satisfied leading to the 

denial; an explanation of how to obtain 

or access evidence used in making the 

decision; and, if applicable, 

identification of the criteria that must be 

satisfied to grant service connection or 

the next higher-level of compensation. 

VA proposes to amend its procedures 

for issuing decisions to conform with 

the amendments to 38 U.S.C. 5104(b). 

Enhanced decision notices will allow 

claimants and their representatives to 

make more informed choices about 

whether to seek further review and, if 

so, which of the new review lanes best 

fits the claimant’s needs: Filing a 

supplemental claim with the agency of 

original jurisdiction, requesting a 

higher-level review of the initial 

decision within the agency of original 

jurisdiction, or appealing to the Board. 

In addition, to comply with 38 U.S.C. 

5104B(d), VA proposes to amend § 3.103 

to explain that the evidentiary record for 

a claim before the agency of original 

jurisdiction closes when VA issues 

notice of a decision on said claim. A 

claimant may reopen the evidentiary 

record by submitting a supplemental 

claim or claim for an increase on the 

prescribed application form. Consistent 

with its discretionary authority under 

38 U.S.C. 501(a), VA proposes to require 

a prescribed application form for 

submitting a supplemental claim 

consistent with current regulations 

applicable to claims. Submission of a 

substantially complete initial or 

supplemental claim also triggers VA’s 

duty to assist in the gathering of 

evidence under § 3.159. The evidentiary 

record also reopens when a claim must 

be readjudicated due to identification of 

a duty to assist error on higher-level 

review or by the Board. Whenever the 

record reopens, evidence submitted to 

the agency of original jurisdiction while 

the record was closed will become part 

of the record to be considered for a 

subsequent adjudication. 

VA also proposes to make several 

nomenclature changes within § 3.103 to 

update language and clarify that a 

hearing before VA may be conducted in 

person or through videoconferencing 

tools available at a regional office 

closest to the claimant. The changes also 

clarify that a hearing will not be 

provided in connection with a request 

for higher-level review. Claimants will 

have the opportunity to request an 

informal conference in connection with 

a request for higher-level review as 

provided in proposed § 3.2601. 

Finally, VA proposes to delete the last 

sentence of § 3.103(c)(2), allowing a 

claimant to request visual examination 

during a hearing by a physician 

designated by VA. Due to the complex 

considerations involved in making 

determinations on the nature, origin, or 

degree of disability, a physician’s visual 

assessment during a hearing has 

significant limitations. Disability 

assessments typically involve a 

comprehensive clinical evaluation with 

appropriate standardized testing to 

establish the diagnosis or origin, or 

characterize the severity of impairment. 

For some conditions, this could include 

specialized equipment, tests, or training 

that would not be available by a 

physician during a visual examination; 

examples of specialized testing could 

include neuropsychological evaluations 

for traumatic brain injury (TBI) 

claimants. Accordingly, VA proposes to 

remove the reference that claimants may 

request visual examination by a 

physician at the hearing. Although VA 

does not currently have data on the 

number of examinations requested by 

veterans during hearings, these types of 

examinations are obsolete as Veterans 

and VA can now utilize several other 

methods to add visual examination 

findings into the record. These include 

Disability Benefits Questionnaires 

(DBQs) that a claimant may ask any 

physician to complete to document 

visual findings and 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. 

§ 3.104 Finality and Binding Nature of 

Decisions 

VA proposes to amend § 3.104(a), 

concerning the binding nature of 

decisions, to conform with other 

regulatory changes implementing Public 

Law 115–55. In addition, VA proposes 

to remove the word ‘‘final’’ from this 

section for consistency with the 

definition of finally adjudicated claim 

in § 3.160(d). Decisions issued by an 

agency of original jurisdiction are 

binding on VA field offices under 

§ 3.104 when issued, even though the 

decision is not finally adjudicated 

because the period for a claimant to seek 

review of the decision is still open. The 

current wording of § 3.104 refers to such 

decisions as ‘‘final’’ and binding when 

they are issued. The definition of 

‘‘finally adjudicated’’ in § 3.160(d) will 

be maintained and a decision on a claim 

is final when the claim is finally 

adjudicated. 

In addition, Public Law 115–55 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. VA proposes to 

amend § 3.104 to include a new 

paragraph implementing this provision. 

VA further proposes to define a finding 

as a conclusion on either a question of 

fact or on an application of law to facts. 

§ 3.105 Revision of Decisions 

VA proposes to amend § 3.105(a) to 

incorporate existing legal standards 

recognized in judicial decisions 

applicable to revision of final decisions 

under 38 U.S.C. 5109A. This statute 

allows for revision or reversal of final 

decisions by the Secretary based on 

clear and unmistakable error (CUE). 

These rules are set forth in proposed 

§ 3.105(a)(1). Proposed § 3.105(a)(2) 

contains standards applicable to 

revision of decisions that are not yet 

final. 

Proposed § 3.105(a)(1) incorporates 

judicial standards applicable to revision 

of final decisions based on CUE under 

38 U.S.C. 5109A. No substantive 

changes are intended to the existing law 

governing revision of final agency of 

original jurisdiction decisions based on 

CUE. The proposed amendments 

conform regulations with respect to 

revision of final decisions by the agency 

of original jurisdiction with similar 

regulatory changes previously 

promulgated with respect to revision of 

final Board decisions based on CUE 

under 38 U.S.C. 7111. See 38 CFR 

20.1400—20.1411; 64 FR 2134 (January 

13, 1999). Those changes similarly 

incorporated judicially recognized CUE 

principles and were upheld in Disabled 

American Veterans v. Gober, 234 F.3d 

682 (Fed. Cir. 2000). The Court in 

Disabled American Veterans found that 

the enactment of statutory sections 

5109A and 7111 ‘‘ ‘codified . . . the 

Court of Appeals for Veterans Claims’ 

long standing interpretation of CUE.’ ’’ 

Id. at 687 (quoting Bustos v. West, 179 

F.3d 1378, 1380 (Fed. Cir. 1999)). 

Judicial decisions have recognized 

that CUE applies only to final 

administrative decisions. See, e.g., 

Richardson v. Nicholson, 20 Vet.App. 


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64, 70–71 (2006) (stating that ‘‘CUE 

must be based on a final adjudication’’ 

and citing the definition of ‘‘finally 

adjudicated claim’’ in 38 CFR 3.160(d)); 

see also Cook v. Principi, 318 F.3d 1334, 

1342 (Fed. Cir. 2002). 

Further, CUE is a specific and rare 

kind of error, requiring the claimant to 

demonstrate three elements: (1) The 

error must be of a specific type—‘‘either 

the correct facts, as they were known at 

the time, were not before the adjudicator 

or the statutory or regulatory provisions 

extant at the time were incorrectly 

applied;’’ (2) the error must be 

‘‘undebatable;’’ and (3) the error must 

undebatably be outcome-determinative, 

meaning that the error would have 

‘‘manifestly changed the outcome’’ at 

the time it was made. Willsey v. Peake, 

535 F.3d 1368, 1371 (Fed. Cir. 2008) 

(citing Cook, 318 F.3d at 1344 and 

Russell v. Principi, 3 Vet.App. 310, 313– 

14 (1992)); see also Cushman v. 

Shinseki, 576 F.3d 1290, 1301–02 (Fed. 

Cir. 2009) (error must be outcome 

determinative); Bustos v. West, 179 F.3d 

1378, 1381 (Fed. Cir. 1999) (affirming 

‘‘manifestly changed outcome’’ 

requirement). 

An error is undebatable if ‘‘no 

reasonable adjudicator could weigh the 

evidence in the way that the adjudicator 

did.’’ Willsey, 535 F.3d at 1372; Russell, 

3 Vet.App. at 313–14 (CUE errors must 

be undebatable, such that ‘‘reasonable 

minds could only conclude that the 

original decision was fatally flawed at 

the time it was made’’). Accordingly, 

CUE cannot be based on a 

‘‘disagreement as to how the facts were 

weighed or evaluated.’’ Id. at 313. 

The error must be shown based solely 

on the evidentiary record as it existed at 

the time of the disputed regional office 

(RO) adjudication and the law that 

existed at the time of subject 

adjudication. Cook, 318 F.3d at 1343– 

45; Russell, 3 Vet. App. at 314 (‘‘New or 

recently developed facts or changes in 

the law subsequent to the original 

adjudication . . . do not provide 

grounds for revising a finally decided 

case’’); Jordan v. Nicholson, 401 F.3d 

1296, 1299 (Fed. Cir. 2005) (subsequent 

change in interpretation of statute not 

applicable to CUE request as to final VA 

decisions). 

The caselaw also addresses burden of 

proof issues. As the Court stated in 

Andre v. Principi, ‘‘ ’the party bringing 

a CUE challenge to a final RO decision 

bears the burden of proving that the 

decision was based on a clear and 

unmistakable error.’ ’’ 301 F.3d. 1354, 

1361 (Fed. Cir. 2002) (quoting Pierce v. 

Principi, 240 F.3d 1348,1355 (Fed. Cir. 

2001)). ‘‘ ‘This burden is not satisfied by 

the mere assertion that the decision 

contained CUE; instead, the party must 

describe the alleged error ‘‘with some 

degree of specificity’’ and must provide 

persuasive reasons ‘as to why the result 

would have been manifestly different 

but for the alleged error.’ ’’ Id. (citation 

omitted). Mere allegations of failure to 

follow regulations or failure to give due 

process, or any other general, nonspecific claims of error, are insufficient 

to raise a claim of CUE. Fugo v. Brown, 

6 Vet. App. 40, 44 (1993). An allegation 

that the Secretary did not fulfill the duty 

to assist is insufficient to raise the issue 

of CUE. See, e.g., Crippen v. Brown, 9 

Vet. App. 412, 418 (1996). 

Proposed § 3.105(a)(2) applies to 

decisions that are not finally 

adjudicated at the agency of original 

jurisdiction. The proposed language 

reflects current policy and practice with 

respect to matters adjudicated under 

part 3 of VA’s regulations that the 

outcome of a decision will not be 

revised by another adjudicator in the 

agency of original jurisdiction on his or 

her own initiative, based on the same 

evidentiary record, unless a 

determination is made that the outcome 

of the decision is clearly erroneous. This 

reflects a policy decision by VA to 

restrict the discretion of subsequent 

adjudicators to reverse prior 

determinations in the absence of new 

evidence. In accordance with new 38 

U.S.C. 5104A, the adjudicator may, in 

determining whether the result was 

clearly erroneous, take into account any 

favorable findings subject to reversal 

based on clear and convincing evidence 

to the contrary. Determinations under 

§ 3.105(a)(2) are therefore legally 

distinct from determinations under 

§ 3.105(a)(1) as to whether a final 

decision should be revised based on 

CUE. 

In addition, VA proposes to amend 

paragraph (b) to clarify that difference of 

opinion authority is given to VA 

employees designated to complete 

higher-level reviews to implement the 

requirement in new 38 U.S.C. 5104B 

that a higher-level review is de novo, 

subject to the rule protecting favorable 

findings. A new paragraph is also added 

at the end of § 3.105 to reflect that VA 

decisions may now be revised through 

resolution of a timely-filed 

supplemental claim under 38 U.S.C. 

5108 or higher-level review under 38 

U.S.C. 5104B. 

No changes are necessary to 

§§ 3.105(c) through (h), which govern 

severance of service connection and 

reduction in evaluations, such as 

reductions in pension payments and 

reductions in evaluations of a serviceconnected disability. The standards and 

procedures set forth in these paragraphs 

will continue to apply and an 

adjudicator considering whether to 

reduce or discontinue an evaluation 

under § 3.105 is not bound under the 

‘‘favorable finding’’ rule in new section 

5104A of the statute that protects 

findings relating to a disability 

evaluation for a particular period of 

time but does not preclude a subsequent 

finding that the disability thereafter 

improved. 

Rating evaluations and pension 

awards are running awards, resulting in 

recurring payments being made 

subsequent to an initial award. See, e.g., 

Dent v. McDonald, 27 Vet.App. 362, 372 

(2015) (pension is a ‘‘running award,’’ 

meaning ‘‘recurring payments made 

subsequent to an initial award’’). 

Changes in the underlying facts that led 

to the original award may warrant a 

discontinuance or reduction of a 

running award. See, e.g., 38 U.S.C 

§ 5112 (governing effective dates of 

reductions and discontinuances); 38 

CFR 3.273 (describing monthly pension 

as a ‘‘running award’’ and requiring 

adjustment when there is a change in 

income); § 3.105 (noting that the 

provisions regarding the date of 

discontinuance of awards are applicable 

to running awards such as monthly 

pension and those based on disability 

evaluations); § 3.344 (governing 

disability evaluation reductions on the 

basis of medical reports showing 

improvement in a service-connected 

condition). Determinations of whether a 

running award should be adjusted are 

based on different facts for a different 

time period than that for which the 

initial award was made. Accordingly, a 

determination of the appropriate level of 

a running award made in an initial 

decision is a finding different than a 

later finding as to whether the 

previously assigned level should be 

reduced or discontinued. Therefore, an 

adjudicator considering whether to 

reduce or discontinue an evaluation 

under § 3.105 is not assessing prior 

entitlement under the initial award of 

disability evaluation and is not bound 

by prior ‘‘favorable findings’’ under 

section 5104A of the statute. No change 

to the standards and procedures in 

§§ 3.105(c) through (h) is therefore 

required. 

§ 3.151 Claims for Disability Benefits 

Public Law 115–55 added 38 U.S.C. 

5104C, which outlines the available 

review options following a decision by 

the agency of original jurisdiction. VA 

proposes to amend §§ 3.2500 and 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 


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claim, appeal to the Board) for each 

issue decided by VA, consistent with 

new 38 U.S.C 5104C. A claimant would 

not be limited to choosing the same 

review option for a decision that 

adjudicated multiple issues. 

Proposed § 3.151(c) defines an issue 

for this purpose as an adjudication of a 

specific entitlement. For example, with 

respect to service-connected disability 

compensation, an issue would be 

entitlement to compensation for a 

particular disability (and any ancillary 

benefits). This definition of ‘‘issue’’ is 

consistent with the definition of issue in 

§ 20.1401(a), as interpreted by the U.S. 

Court of Appeals for Veterans Claims. 

See Hillyard v. Shinseki, 24 Vet. App. at 

353 (equating the term issue with a 

‘‘claim’’ and ‘‘not a theory or an element 

of a claim,’’ citing Disabled American 

Veterans, 234 F.3d at 693). The option 

to select different review lanes would 

not extend to specific components of the 

same entitlement claim, because 

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 

unworkable, risk self-contradictory 

decision-making by VA, and defeat 

Congressional intent to streamline the 

review process and reduce processing 

times. 

A simple hypothetical serves to 

illustrate VA’s intent. Suppose a 

claimant seeks disability compensation 

for a knee disability, and for a mental 

disorder. Once the claimant receives an 

initial decision on both, it is permissible 

for the claimant to elect to place the 

knee issue and the mental disorder issue 

in separate lanes under the new appeals 

system. The claimant may not, however, 

challenge the effective date assigned for 

the knee in one lane, and 

simultaneously challenge the assigned 

degree of disability for the knee in 

another lane. 

In addition, VA proposes to include a 

new paragraph, § 3.151(d), providing 

that the evidentiary record for a claim 

closes upon issuance of notice of a 

decision on the claim. This provision is 

similar to proposed § 3.103(c). 

§ 3.155 How To File a Claim 

VA proposes to amend § 3.155, 

regarding the procedures for filing a 

claim, to make those procedures 

applicable to supplemental claims 

under Public Law 115–55, except for the 

‘‘intent to file’’ provisions found in 

§ 3.155(b). For example, this 

amendment would apply existing 

procedures in § 3.155(c) regarding the 

filing of incomplete claim forms to 

supplemental claims. Accordingly, 

incomplete supplemental claim forms 

would be considered filed on the date 

of receipt if a complete supplemental 

claim is submitted within one year of 

the filing date of the incomplete claim. 

However, the ‘‘intent to file’’ 

provisions in § 3.155(b), would not be 

applied to supplemental claims. The 

new statutory framework provides that 

a claimant can maintain the 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 denying 

benefits. Consistent with this 

requirement, the intent to file provisions 

of § 3.155(b) would not apply to 

supplemental claims as this provision 

would allow for the submission of a 

supplemental claim beyond the oneyear period provided by statute for 

protection of effective dates. 

§ 3.156 Receipt of New Evidence 

VA proposes to amend § 3.156 to 

include reference to supplemental 

claims based on new and relevant 

evidence as provided in Public Law 

115–55 and to clarify when a 

supplemental claim may be filed. For 

supplemental claims received after the 

effective date, VA proposes new 

§ 3.156(d) to replace the ‘‘new and 

material’’ evidence element, which is 

currently required under § 3.156(a) for 

requests for VA to reopen a finally 

adjudicated claim, with the more liberal 

‘‘new and relevant’’ evidence standard 

in section 2(i) of Public Law 115–55. As 

noted in the House of Representatives 

Committee Report (H. Rept.115–135, 

May 19, 2017, page 3), Congress’s intent 

‘‘behind the change is to lower the 

current burden’’ to have a claim 

readjudicated based on new evidence. 

Public Law 115–55 defines ‘‘relevant 

evidence’’ under 38 U.S.C. 101(35) as 

‘‘evidence that tends to prove or 

disprove a matter in issue.’’ This new 

standard reduces a claimant’s threshold 

in identifying or submitting evidence as 

part of a supplemental claim. Proposed 

§ 3.156(d), regarding supplemental 

claims, includes a reference to new 

§ 3.2501 which provides further details 

regarding the filing and adjudication of 

supplemental claims and the ‘‘new and 

relevant’’ evidence standard. 

VA proposes to maintain the ‘‘new 

and material’’ evidence standard, found 

in 38 U.S.C. 5108 prior to the enactment 

of Public Law 115–55, in subsection (a) 

as the standard for requests to reopen 

finally adjudicated legacy claims where 

the request to reopen was decided prior 

to the applicability date of the new law. 

Claims to reopen that were filed, but not 

initially adjudicated, prior to the 

effective date will be adjudicated under 

the more favorable ‘‘new and relevant’’ 

standard applicable to supplemental 

claims. In addition, a supplemental 

claim subject to the more favorable 

standard may be filed after the effective 

date of the modernized review system, 

even with respect to legacy claims 

finally adjudicated prior to the effective 

date of the new system. 

Under the new framework, the agency 

of original jurisdiction will take action 

on new evidence that is received with 

an application for a supplemental claim, 

or received or obtained prior to issuance 

of a decision on the supplemental claim. 

As indicated in the explanation of 

proposed § 3.103, the record closes 

upon issuance of a notice of decision on 

the claim, subject to reopening upon 

certain later events. Therefore, VA 

proposes to limit the applicability of the 

current rule under paragraph (b), 

allowing for the submission of new and 

material evidence during the appeal 

period, to pending legacy claims that are 

not subject to the modernized review 

system. 

§ 3.159 Department of Veterans Affairs 

Assistance in Developing Claims 

38 U.S.C. 5103(a) requires VA to 

provide notice to a claimant of the 

information or evidence necessary to 

substantiate the individual’s claim for 

benefits. Public Law 115–55 revised 

section 5103 to state that this notice 

requirement applies to initial and 

supplemental claims; however, VA is 

not required under the statute to 

provide that notice with respect to a 

supplemental claim filed within one 

year of an agency of original jurisdiction 

or Board decision on an issue. VA 

proposes to amend § 3.159 to include 

this exception. 

VA also proposes to require VA to 

assist a claimant who reasonably 

identifies existing records in connection 

with a supplemental claim, as required 

under 38 U.S.C. 5108(b). VA proposes to 

further amend § 3.159 to clarify that 

VA’s duty to assist in the gathering of 

evidence begins upon receipt of a 

substantially complete application for 

an initial or supplemental claim and 

ends once VA issues a decision on the 

claim. 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 


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

Law 115–55. 

§ 3.160 Status of Claims 

Public Law 115–55 deleted the 

reference in 38 U.S.C 5103(a) to a claim 

for reopening or a claim for increase and 

replaced it with reference to a 

‘‘supplemental claim.’’ Based on this 

change in terminology, VA proposes to 

update several sections in part 3 to 

replace the term ‘‘reopened claim’’ with 

‘‘supplemental claim.’’ Claimants may 

request review of VA’s decision by 

submitting a supplemental claim after a 

decision by the VBA, the Board, or the 

Court of Appeals for Veterans Claims. 

VA proposes to update paragraph (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. 

VA proposes to clarify the definition 

of ‘‘finally adjudicated claim’’ for 

decision notices issued on or after the 

effective date, to be consistent with 38 

U.S.C. 5104C, added by Public Law 

115–55. With the new claims and 

appeals system, a claim is considered 

finally adjudicated at the expiration of 

the period to file a review option 

following notice of a decision by the 

agency of original jurisdiction, the 

Board, or the Court of Appeals for 

Veterans Claims. If an appeal is timely 

filed from a decision of the Court of 

Appeals for Veterans Claims, a claim is 

finally adjudicated upon its disposition 

on judicial review. During the time 

period for seeking review, a claimant 

may elect one of the three new review 

options depending on the type of 

decision issued as outlined in 38 U.S.C. 

5104C. Once the period to seek review 

expires, an issue is considered finally 

adjudicated and a claimant loses the 

effective date protections associated 

with continuous pursuit of an issue. At 

that point, the claimant may seek review 

of the decision by filing a supplemental 

claim or a request to revise the final 

decision based on clear and 

unmistakable error under § 3.105(a)(1). 

VA proposes to amend the definition 

of complete claim to add a requirement 

applicable to supplemental claims, in 

part to implement the duty to assist 

requirements under 38 U.S.C. 5108(b). 

In order for a supplemental claim to be 

considered complete and filed, it must 

identify or include potentially new 

evidence. Identification of potentially 

new evidence would trigger VA’s duty 

to assist under §§ 3.2501 and 

3.159(a)(3). Without that baseline level 

of information, the complete claim 

standard will not have been met for 

purposes of claim initiation of a 

supplemental claim. VA believes this 

baseline level of substantive specificity 

is necessary in order to minimize the 

possibility that claimants can effectively 

keep a claim stream alive indefinitely by 

repeatedly asserting that they will 

submit or identify new and relevant 

evidence at some future date, never 

doing so, and then repeating the process 

once VA issues a decision. However, we 

emphasize that the claim would be 

considered ‘‘complete’’ for claim 

initiation purposes, and VA’s duty to 

assist accordingly triggered, when the 

claimant identifies evidence within the 

scope of VA’s duty to assist to obtain. 

It would not be required that VA 

actually obtain the evidence, or make a 

finding that new and relevant in fact has 

been secured, prior to recognizing that 

a supplemental claim has in fact been 

filed. 

§ 3.161 Expedited Claims Adjudication 

Initiative—Pilot Program 

VA proposes to remove and reserve 

§ 3.161, which addresses the Expedited 

Claims Adjudication (ECA) Initiative 

Pilot Program as this program is no 

longer in use and will not continue 

based on changes to the claims and 

appeals processes under Public Law 

115–55. VA launched the ECA Initiative 

Program on February 2, 2009. The twoyear pilot program was designed to 

accelerate claims and appeals 

processing. Participation in the ECA 

Initiative was strictly voluntary and 

limited to claimants who resided within 

the jurisdiction of the Nashville, 

Lincoln, Seattle, or Philadelphia 

Regional Offices (ROs). VA concluded 

the ECA pilot program in 2013. 

§ 3.328 Independent Medical Opinions 

Public Law 115–55 repealed 38 U.S.C. 

7109, which authorized the Board to 

obtain 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 Public Law 115–55, the Board 

will, when deemed necessary, direct the 

agency of original jurisdiction to obtain 

an IMO. VA proposes to amend § 3.328 

to include a requirement that VBA 

process IMO instructions received from 

the Board. 

§ 3.400 General 

VA proposes to amend § 3.400 to 

incorporate the new rule that a claimant 

may protect their initial filing date for 

effective date purposes if they 

continuously pursue a claim as outlined 

in 38 U.S.C. 5110(a), as amended by 

Public Law 115–55. VA will consider 

the date of receipt of the initial claim 

when determining the effective date for 

any benefits that VA may award under 

a continuously pursued claim. VA 

provides a reference to § 3.2500 where 

this is further defined. 

VA proposes to limit the applicability 

of the rules regarding new and material 

evidence and reopened claims as VA 

will no longer accept or process claims 

to reopen claims received after the 

effective date of the new law. 

§ 3.2400 Applicability of Modernized 

Review System 

Proposed § 3.2400 defines which 

claims are processed under the new 

review system and which clams are 

processed under the legacy appeals 

system. Public Law 115–55, section 2(x), 

provides generally that the new review 

system will apply to all claims for 

which a notice of decision is provided 

by the agency of original jurisdiction on 

or after the later of (a) 540 days from the 

date of enactment, which falls on 

February 14, 2019, or (b) 30 days after 

the date on which the Secretary certifies 

to Congress that VA is ready to carry out 

the new appeals system. Proposed 

§ 19.2(a) refers to this date as the 

‘‘effective date’’ of the new review 

system. Proposed § 3.2400(a)(1) 

implements the statutory definition and 

clarifies that the new review system 

applies when an ‘‘initial’’ decision is 

provided after the effective date. The 

term ‘‘initial decision’’ in this context 

refers to the initial decision on each 

claim for entitlement to a particular 

benefit, not the first decision that was 

ever issued by VA for a claimant. 

Proposed § 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 clear and 

unmistakable error (CUE). Such requests 

are not ‘‘claims’’ subject to Public Law 

115–55, 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). Nevertheless, VA 

will, as a matter of discretion, allow the 

requestor to elect review of such 

decisions in the higher-level review lane 

in addition to the option to appeal to the 

Board. A supplemental claim may not 

be filed with respect to a CUE request 

since revision of a decision for CUE 

cannot be based on new evidence. 

The proposed regulation also 

recognizes, in subsection (c), that some 

claimants who received a notice of 

decision prior to the effective date, 

defined as legacy claimants, may have 


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opted-in to the new review system prior 

to the effective date and that some may 

do so after the effective date. Prior to the 

effective date, some claimants are able 

to opt-in to the new review system 

under a VA test program known as the 

Rapid Appeals Modernization Program 

(RAMP), which is being carried out 

pursuant to section 4(a) of Public Law 

115–55. Qualifying claimants can 

choose either the higher-level review 

lane or the supplemental claim lane to 

pursue review of their claims. Those 

claimants who opt-in under RAMP have 

received, or will receive, a notice of 

decision conforming with the enhanced 

decision notice requirements of Public 

Law 115–55 and advising the claimant 

regarding the review options available 

under the new system. Upon the 

effective date, those claims will 

continue to be processed under the new 

framework as implemented by final 

regulations. 

Proposed subsection (c) provides, in 

accordance with section 2(x)(5) of 

Public Law 115–55, that, after the 

effective date, legacy claimants may optin to the new review system after VA 

issues a Statement of the Case or 

Supplemental Statement of the Case. 

Claimants may do so by filing for one 

of the review options under the new 

system on a form prescribed by VA 

within the time allowed to file a 

substantive appeal to the Board under 

the legacy appeals system. A claimant 

may not elect to pursue review under 

both the legacy and modernized review 

systems with respect to a particular 

claim. 

§ 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. Public Law 115–55 created a 

new claims and appeals process with 

several different review options for 

pursuing VA benefits. Congress added 

38 U.S.C. 5104C to provide claimants 

with streamlined choices within the 

agency of original jurisdiction and 

through an appeal to the Board. VA 

proposes to add § 3.2500 to part 3, 

subpart D, to implement the new review 

options and set forth the rules that 

apply to those options under new 38 

U.S.C. 5104C. In line with the statutory 

requirements, VA proposes 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 

proposed § 3.2500(b), a claimant would 

be able to elect a different review option 

for each different issue adjudicated in 

the decision. The term ‘‘issue’’ is 

defined in § 3.151(c) as a distinct 

determination of entitlement to a 

benefit, such as a determination of 

entitlement to service-connected 

disability compensation for a particular 

disability. 

Proposed § 3.2500(b) provides that a 

claimant may not elect to have the same 

issue reviewed concurrently under 

different review options, consistent with 

new 38 U.S.C. 5104C(a)(2)(A). Proposed 

§ 3.2500(d) implements new 38 U.S.C. 

5104C(a)(2), providing that claimants 

may switch between the different 

review options. A claimant or the 

claimant’s duly appointed 

representative may, for example, 

withdraw a request for higher-level 

review or a supplemental claim at any 

time prior to VA issuing notice of 

decision. If the withdrawal takes place 

within the one year period following 

notice of the decision being reviewed, a 

claimant may timely elect another 

review option to continuously pursue 

the claim and preserve potential 

entitlement to benefits effective as of the 

date of the initial claim. 

Under new 38 U.S.C. 5104C, after 

receiving notice of a decision on an 

issue, claimants generally have up to 

one year to submit new and relevant 

evidence with a supplemental claim, 

request a higher-level review, or file an 

appeal to the Board to preserve the 

effective date associated with their 

initial claim. If a claimant remains 

dissatisfied with the decision on review, 

depending on the type of review 

requested, he or she would still have the 

option to file another review request. 

The review options available to a 

claimant after a decision on each type 

of review are set forth in § 3.2500(c). 

Paragraph (g) contains effective date 

protections for continuously pursued 

claims and the effective date rule for 

supplemental claims filed more than 

one year after notice of a decision (i.e., 

where the underlying claim is finally 

adjudicated). For example, a claimant 

who receives an unfavorable decision 

on a higher-level review request may 

submit a supplemental claim with new 

and relevant evidence or appeal to the 

Board within one year of the decision 

notice date to protect the effective date. 

If, following a further denial, the 

claimant elects to file a supplemental 

claim with new and relevant evidence 

within one year of the decision notice 

date and VA grants the benefit sought, 

VA will consider this to be a 

continuously pursued claim and 

continue to base the effective date of an 

award on the filing date of the initial 

claim. 

VA proposes to include a paragraph 

in § 3.2500 that limits the review option 

available to parties to a simultaneously 

contested claim (contested claim) to the 

filing of a Notice of Disagreement with 

the Board. A contested claim is defined 

in VA regulations as a situation in 

which the allowance of one claim 

results in the disallowance of another 

claim involving the same benefit or the 

payment of a lesser benefit to another 

claimant. 38 CFR 20.3(p). For example, 

two people may claim entitlement to the 

same benefit, such as in the situation 

where two people claim entitlement to 

a death benefit as the surviving spouse. 

In this situation, Congress has 

provided for different adjudication rules 

aimed at speeding resolution of the 

dispute. Prior to Public Law 115–55, the 

statutory time frame to appeal a 

decision by the agency of original 

jurisdiction in such cases was 60 days 

rather than the normal one year period. 

38 U.S.C. 7105A. This required review 

to be initiated for all contested claims 

within 60 days and clearly reflected an 

intent that contested claims be resolved 

more quickly than ordinary claims. 

In Public Law 115–55, Congress 

maintained the 60 day time period for 

filing a Notice of Disagreement to appeal 

a decision of the agency of original 

jurisdiction, but did not address how 

contested claims should be handled 

with respect to the newly available 

review lanes at the agency of original 

jurisdiction, for which the filing 

deadline is one year. This is problematic 

for the following reasons: (1) While the 

new system provides claimants with the 

right to select from three different 

review lanes, it is literally impossible to 

provide this right to each claimant in a 

contested claim, because the claimants’ 

choice of review lanes may conflict (we 

note that both claimants may disagree 

with a particular determination in a 

contested claim, such as the amount of 

an apportionment under § 3.450); (2) 

while the new system protects favorable 

findings from being overturned in the 

absence of clear and convincing 

evidence to the contrary, a finding may 

be favorable to one claimant but 

unfavorable to the other, thus making it 

literally impossible to afford each 

claimant this right; (3) the review period 

for choosing the Board review lane 

(through filing a Notice of 

Disagreement) would be 60 days for a 

contested claim, but the review period 

for choosing higher-lever review or 

filing a supplemental claim would be 

one year, thereby significantly 

undermining the impact of the 60 day 

time period for filing a Notice of 

Disagreement on achieving a faster 

resolution of the claim. As a result, it 

appears that Congress either did not 

envision that contested claims would be 


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governed by the three-lane review 

system or simply neglected to address 

this issue, leaving a gap for VA to fill. 

See, e.g., Ramsey v. Nicholson, 20 

Vet.App. 16, 30 (2006) (refusing to 

literally apply the statutory requirement 

that appeals at the Board be considered 

and decided in docket order because, 

despite the arguably plain meaning of 

the statute, literal application would 

produce an absurd result, or at least a 

result at odds with the intention of the 

drafters, ‘‘when considering the statute’s 

overall structure and concepts relating 

to effective review of appeals’’). 

VA proposes to fill the gap left by the 

statute by limiting the review option 

available to a contested claimant to 

filing a Notice of Disagreement with the 

Board within 60 days of issuance of the 

decision of the agency of original 

jurisdiction. Simultaneously contested 

claims thus would be excepted from the 

general one year review period in 

§ 3.2500. VA believes that this is a 

reasonable way to effectuate 

congressional intent that the review 

process for a contested claim be 

designed to achieve faster resolution of 

the claim. It also reduces the 

opportunity for one claimant to prevent 

the payment of benefits to another 

claimant by delaying action on filing for 

review of a decision favorable to the 

other claimant or by filing successive 

supplemental claims based on 

marginally relevant evidence. If either 

claimant discovers new evidence, the 

claimant may, under the new system, 

file such evidence in connection with 

an appeal to the Board. In addition, 

under the new system, initial decisions 

by the agency of original jurisdiction are 

required to contain more detailed 

information regarding the basis of the 

decision, reducing the need for further 

decisions by the agency of original 

jurisdiction to provide more 

information. 

§ 3.2501 Supplemental Claims 

VA proposes to add a new section to 

part 3, subpart D, to explain the rules 

that govern the supplemental claim 

review option required by 38 U.S.C. 

5108 as amended by Public Law 115–55. 

Claimants may request review of VA’s 

decision by submitting a supplemental 

claim after a decision by the VBA, the 

Board, or the Court of Appeals for 

Veterans Claims. Public Law 115–55 

amended 38 US.C. 5108(a) to prescribe 

that VA will re-adjudicate a claim when 

new and relevant evidence is presented 

or secured with respect to a 

supplemental claim. VA proposes to 

include in § 3.2501 the requirement that 

new and relevant evidence must 

accompany a supplemental claim or be 

submitted or secured while a 

supplemental claim is pending for VA 

to take action on the evidence and 

readjudicate the claim. 

VA proposes to include a requirement 

that a claimant file a supplemental 

claim on a form prescribed by the 

Secretary and that the duty to assist in 

gathering new and relevant evidence 

will be triggered upon the filing of a 

substantially complete application. As 

provided in proposed amendments to 

§ 3.159(a)(3) and § 3.160(a), a 

substantially complete or complete 

supplemental claim application must 

identify or include potentially new 

evidence. An incomplete claim will be 

considered filed on the date of receipt 

if the complete application is filed 

within a year, consistent with § 3.155. 

The new statutory framework provides 

one year for submission of a request for 

review under any of the three new 

lanes. Consistent with this requirement, 

the intent to file provisions of § 3.155(b) 

would not apply to supplemental 

claims. This new section will also 

address the evidentiary record for 

supplemental claims, consistent with 

proposed § 3.151(d). 

§ 3.2502 Returns by Higher-Level 

Adjudicator or Remand by the Board of 

Veterans’ Appeals 

VA proposes to add § 3.2502 to part 

3, subpart D, to implement the 

requirement in new 38 U.S.C. 5109B for 

expedited processing of claims returned 

from a higher-level adjudicator and 

remands from the Board. Upon receipt 

of a returned claim or remand by the 

Board, the agency of original 

jurisdiction will take immediate action 

to expedite readjudication of the claim 

in accordance with new 38 U.S.C. 

5109B. The agency of original 

jurisdiction will retain jurisdiction of 

the claim. In readjudicating the claim, 

the adjudication activity 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). For all issues readjudicated, 

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 

proposed § 3.2500(g). 

§ 3.2600 Legacy Review of Benefit 

Claims Decisions 

Current § 3.2600 governs certain 

aspects of review under the legacy 

system, for claims in which a Notice of 

Disagreement is filed on or after June 1, 

2001. VA proposes to amend § 3.2600 to 

make clear that this section only applies 

to legacy claims as defined in § 3.2400 

and not to claims that are processed 

under the new review system. VA plans 

to implement the new claims and 

appeals system on February 14, 2019. 

Claimants who receive decisions prior 

to the effective date of the new system 

will have the option to file an appeal 

under the legacy process, in which case 

§ 3.2600 will apply. In general, the 

agency of original jurisdiction will stop 

accepting Notices of Disagreement for 

legacy claims one year after the effective 

date of the final rule implementing the 

new claims and appeals system, subject 

to extension of the filing period for good 

cause in individual cases. 

§ 3.2601 Higher-Level Review 

VA proposes to add a new section to 

part 3, subpart D, to implement the rules 

that govern the higher-level review 

option required by 38 U.S.C. 5104B. 

This new section explains the 

requirements for electing a higher-level 

review, describes the type of agency of 

original jurisdiction employees who 

will conduct the review, and addresses 

the review process. 

Under 38 U.S.C. 5104B, a claimant in 

the modernized review system may 

request a higher-level review of a 

decision on a claim by the agency of 

original jurisdiction during the one year 

period to seek review following 

issuance of the notice of decision. The 

higher-level review option gives 

claimants a second look at their claims, 

but that review is based solely on the 

same evidence that was before the 

initial adjudicator. The higher-level 

review is conducted by a different 

experienced VA employee with the 

ability to change the initial decision 

based on difference of opinion 

authority, subject to the rule that 

favorable findings are binding absent 

clear and convincing evidence to the 

contrary. The higher-level review 

provides the opportunity for resolution 

of the issue(s) in dispute at the agency 

of original jurisdiction without having 

to file an appeal to the Board, or having 

to submit a supplemental claim with 

new and relevant evidence. 

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 speak with the higherlevel adjudicator and point out any 

specific errors in the case as part of the 

higher-level review. VA has utilized an 

informal conference as part of the 


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Decision Review Officer review in the 

current legacy appeals process. VA has 

received positive feedback on providing 

claimants and/or their representatives 

an opportunity to speak directly with 

the decisionmaker for the claim. To 

further support this level of engagement, 

VA proposes to include the availability 

of an informal conference with a higherlevel adjudicator in the new § 3.2601. 

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 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. VA proposes to make efforts to 

contact a claimant or his or her 

representative, when requested, 

telephonically and to honor all requests 

for informal conferences unless 

determined not feasible in an individual 

case, such as when VA, after reasonable 

efforts, is unable to make contact with 

the claimant or his or her representative. 

VA proposes to include a paragraph 

that explains the requirement for 

expedited processing of all identified 

duty to assist errors. VA has a statutory 

duty to assist claimants in gathering 

evidence in support of a claim for 

benefits. Under 38 U.S.C. 5103A(f), if 

the higher-level adjudicator discovers a 

duty to assist error, the claim returns to 

the adjudication activity for correction 

unless the higher-level adjudicator 

determines that it would be appropriate 

for VA to grant the maximum benefit for 

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

5109B, VA proposes to include a rule 

requiring expedited processing to 

correct these types of errors and to 

define ‘‘maximum benefit’’ for disability 

compensation as the maximum 

scheduler evaluation for the issue, and 

for other types of benefits, the granting 

of the benefit sought. 

Because the filing date of a request for 

higher-level review is relevant to 

maintaining the effective date of any 

award, VA proposes to include 

provisions for determining the filing 

date that are similar to the provisions in 

§ 3.155 that apply to applications for 

benefits. 

Part 8—National Service Life Insurance 

To comply with Public Law 115–55, 

VA proposes to amend 38 CFR 8.30 to 

allow applicants for insurance coverage 

and/or claimants for insurance proceeds 

(both hereafter referred to as claimants) 

who disagree with (1) denials of 

applications for insurance, total 

disability income provision, or 

reinstatement; (2) disallowances of 

claims for insurance benefits; and/or (3) 

decisions holding fraud or imposing 

forfeiture to receive either a higher-level 

review, supplemental claim review, or 

Board review. 

VA has consolidated all life insurance 

activity at a single office located in 

Philadelphia, PA. This office has 

original jurisdiction over all life 

insurance applications and claims for 

proceeds received in conjunction with 

life insurance programs administered by 

VA. Because insurance expertise and 

processing is consolidated at the 

Philadelphia office, higher level reviews 

and supplemental claims will be 

processed by employees at the 

Philadelphia office. Selection of an 

employee to conduct a higher-level 

review is at VA’s discretion. The VA 

Insurance Service will assign higherlevel reviews to employees who are 

experienced decision-makers who did 

not participate in the prior decision. 

The VA Insurance activity would make 

reasonable efforts to honor requests for 

informal conferences as part of a higherlevel review, consistent with proposed 

3.2601(h). As noted in proposed 

§ 3.2601(h), claimants are responsible 

for any costs they incur in conjunction 

with an informal conference. This 

proposed rule would not limit the 

option of pursuing actions under 38 

U.S.C. 1984. 

Part 14—Legal Services, General 

Counsel, and Miscellaneous Claims 

Under 38 U.S.C. chapter 59, the 

Secretary of Veterans Affairs has 

authority to recognize VSOs and their 

representatives as well as attorneys and 

agents for the preparation, presentation, 

and prosecution of benefit claims, 

prescribe the rules of conduct 

applicable while providing claims 

assistance, and regulate fees charged by 

accredited attorneys and agents. 

VA proposes to make several 

revisions to the regulations contained in 

part 14, Title 38 of the Code of Federal 

Regulations, regarding: Accreditation of 

attorneys, agents, and VSO 

representatives; representation of 

claimants before VA; and fees charged 

by attorneys and agents for 

representation. The proposed revisions 

will address the recent changes in law 

enacted by Public Law 115–55, address 

a few discrepancies relating to the 

appellate process in the current 

regulations, and further clarify the rules. 

While Public Law 115–55 sets out ‘‘to 

reform the rights and processes relating 

to appeals of decisions regarding claims 

for benefits under the laws administered 

by the Secretary of Veterans Affairs,’’ 

the accreditation and fee regulations 

contained in part 14 are focused 

exclusively on accreditation of 

attorneys, agents, and VSO 

representatives; representation of 

claimants before VA; and fees charged 

by attorneys and agents for 

representation. Although VA recognizes 

that certain changes to part 14 are 

needed to reflect the new law, which 

changes the starting point at which fees 

for representation may be charged and 

changes in the appellate structure for 

deciding benefit claims, VA does not 

believe that the provisions of the 

appeals reform law prescribing 

processes for ‘‘claims for benefits’’ 

directly apply to adjudications of VA 

accreditation and attorney/agent fee 

matters. See 38 U.S.C. 5904; 38 CFR 

14.626–14.637. 

Section 14.629—Requirements for 

Accreditation of Service Organization 

Representatives; Agents; and Attorneys 

Current § 14.629 contains an 

introductory paragraph describing the 

process within the Office of General 

Counsel for evaluating whether an 

applicant for accreditation meets the 

qualifications for becoming accredited 

by VA and for appealing decisions 

denying accreditation. VA proposes to 

move that paragraph from the beginning 

of 14.629 to a new paragraph, proposed 

paragraph (d), to improve the readability 

of the section. 

In addition, VA proposes to modify 

the substance of the current 

introductory paragraph when relocating 

it in paragraph (d) to state that a denial 

of accreditation by the Chief Counsel is 

a final adjudicative determination of an 

agency of original jurisdiction that may 

only be appealed to the Board. The 

provision currently states that decisions 

denying accreditation may be appealed 

to the General Counsel and denials by 

the General Counsel are ultimately 

appealable to the district courts under 

the Administrative Procedures Act 

(APA). This provision reflects VA’s 

prior position that a decision denying 

accreditation is not a ‘‘decision by the 

Secretary under a law that affects the 

provision of benefits by the Secretary to 

veterans or the dependents or survivors 

of veterans,’’ 38 U.S.C. 511(a), and, 

therefore, is not appealable under the 

system enacted by the Veterans Judicial 

Review Act (VJRA). See 38 U.S.C. 

7104(a). While recognizing that the 

United States Court of Appeals for the 

Federal Circuit (Federal Circuit) had 


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concluded that decisions suspending or 

cancelling accreditation are appealable 

under the VJRA, VA had previously 

distinguished decisions denying 

accreditation. Accreditation of Agents 

and Attorneys; Agent and Attorney 

Fees, 73 FR 29852, 29853–54 (May 22, 

2008). 

However, upon further reflection in 

light of decisions by the Federal Circuit 

and other Federal courts broadly 

construing the VJRA’s exclusive 

jurisdictional scheme, VA now 

concludes that decisions denying 

accreditation also fall within the scope 

of that exclusive review scheme. This 

conclusion ensures consistency with 

respect to the applicable law and other 

decisions relating to accreditation, and 

thus comports with a central purpose of 

the VJRA’s exclusive review scheme, 

i.e., to promote a uniform body of 

jurisprudence on matters related to VA 

benefits. Therefore, proposed 

§ 14.629(d)(2)(ii) would shift the 

authority to issue the decision on appeal 

from the General Counsel to the Board. 

The basis for permitting an appeal to 

the Board is grounded in 38 U.S.C. 511, 

which applies to decisions ‘‘under a law 

that affects the provision of benefits by 

[VA] to veterans or the dependents or 

survivors of veterans.’’ 38 U.S.C. 511(a). 

The Federal Circuit has construed 

section 511 to extend beyond matters 

relating to claims for benefits, including 

to accreditation-related decisions. Cox 

v. West, 149 F.3d 1360, 1365 (Fed. Cir. 

1998) (That ‘‘the decision of the regional 

office did not affect a veteran’s benefits 

is not the point. The relevant issue 

under section 511(a) is whether the 

decision necessarily interpreted a law 

that affects veterans’ benefits.’’); see also 

Bates v. Nicholson, 398 F.3d 1355, 

1359–61 (Fed. Cir. 2005). But the 

Federal Circuit has also held that simply 

because a decision is appealable to the 

Board does not mean the decision is 

subject to all the same statutory 

procedures applicable to claims for 

veterans benefits. See DAV v. Gober, 

234 F.3d 682, 694–95 (Fed. Cir. 2000) 

(demonstrating that certain appealable 

matters are not governed by all of the 

same provisions that apply to regular 

claims for veterans benefits). 

Notably, in Public Law 115–55, 

Congress specifically identified 

‘‘decisions regarding claims for 

benefits,’’ and did not include all 

decisions that are appealable to the 

Board, as being subject to the new 

appellate system. The provisions of 

Public Law 115–55 pertaining to the 

‘‘supplemental claim’’ and ‘‘higher-level 

review’’ options specify that they apply 

to ‘‘claims for benefits’’ and to 

‘‘claimants,’’ which is defined in 38 

U.S.C. 5100 to refer to a person applying 

for a ‘‘benefit’’ under laws administered 

by VA. Id., § 2(a) (defining 

‘‘supplemental claim’’ as ‘‘a claim for 

benefits . . .’’), § 2(g) and (h) 

(authorizing a ‘‘claimant’’ to elect 

higher-level review or submit a 

supplemental claim following a 

decision). VA does not view decisions 

to grant, deny, or otherwise affect 

accreditation status to be decisions 

‘‘regarding claims for benefits’’ within 

the meaning of Public Law 115–55. VA’s 

interpretation of the statute is consistent 

with the Federal Circuit’s interpretation 

that the statutory provision governing 

removal of accreditation is not itself a 

law affecting benefits. Bates, 398 F.3d at 

1360 (‘‘The argument that 38 U.S.C. 

5904(b) is itself a ‘law that affects the 

provision of benefits’ is unpersuasive.’’). 

Accordingly, VA concludes that Public 

Law 115–55 does not require that the 

full range of modernized review 

procedures available for benefit 

decisions be extended to decisions 

regarding accreditation of 

representatives. 

Moreover, revising the current 

adjudication process for accreditation 

matters simply to mirror the choice and 

flexibility required under Public Law 

115–55 for benefits claims is 

unwarranted. Public Law 115–55 is 

designed to allow claimants for benefits 

to switch between the lanes of review, 

while still having an option to submit 

new evidence regarding their claims, all 

while preserving potential entitlement 

to benefits retroactive to the date of the 

benefits claim as long as the matter is 

pursued continuously. See Public Law 

115–55, §§ 2(h)(1), (2)(l). In contrast, 

decisions on accreditation matters are 

effective on the date of the decision; 

therefore, the adjudication of these 

matters does not implicate the same 

issues as for claims for benefits 

regarding preservation of effective dates. 

Although flexibility and choice are key 

objectives of the new statutory 

framework with regard to claims for 

benefits, the paramount concern for 

matters regarding accreditation is 

ensuring that claimants for benefits have 

competent representation. Therefore, we 

propose that denials of accreditation 

will only be appealable to the Board. 

Consistent with the proposal in new 

paragraph (d) to have the Chief Counsel 

make the final decision on an 

accreditation determination, VA 

proposes to transfer from the General 

Counsel level to the Chief Counsel level 

the authority under § 14.629(b)(5) to 

grant or reinstate accreditation for an 

individual who remains suspended in a 

jurisdiction on grounds solely derivative 

of suspension or disbarment in another 

jurisdiction to which he or she has been 

subsequently reinstated. 

Section 14.631—Powers of Attorney; 

Disclosure of Claimant Information 

In current § 14.631(c), the regulation 

refers to 38 CFR 20.608. However, VA 

proposes to change that to 38 CFR 20.6 

to reflect the revisions being proposed 

by the Board in this rulemaking. 

Section 14.632—Standards of Conduct 

for Persons Providing Representation 

Before the Department 

In current § 14.632, the regulation 

lists standards of conduct by which 

accredited attorneys, agents, and 

representatives must abide in preparing, 

presenting, and prosecuting VA benefit 

claims. VA proposes to revise current 

14.632(c)(6) to eliminate the specific 

reference to the Notice of Disagreement 

and to clarify that gifts from a VA 

claimant to a VA-accredited individual 

are not permitted in any situation when 

a fee could not be lawfully charged. VA 

proposes to change the word 

‘‘representation’’ to ‘‘services,’’ in order 

to be clear that this provision applies to 

all aspects of claims preparation, 

presentation, and prosecution. 

Section 14.633—Termination of 

Accreditation or Authority To Provide 

Representation Under § 14.630 

VA proposes changes to current 

§ 14.633(e)(2) to clarify that when the 

Chief Counsel closes the record with 

regard to a suspension or cancellation of 

accreditation, that this is the record 

before the Office of the General Counsel. 

The rationale for this change is to clarify 

procedures for closure of the record in 

suspending or cancelling an 

individual’s accreditation to ensure that 

the regulation does not contradict 

changes under the modernized system. 

Under existing law, the record is closed 

prior to the General Counsel’s decision 

and on appeal to the Board, no 

expansion of the record is permitted 

unless a Board hearing is requested. 

Under the modernized system, evidence 

may be submitted for the Board to 

consider in the first instance with or 

without a hearing request. VA proposes 

this change twice in § 14.633(e)(2) in 

order to maintain consistency. 

VA also proposes new language in 

§ 14.633(h)(1) and (2) to clarify the 

procedures for decisions issued before 

the effective date of the modernized 

review system and on or after that date. 

In addition, in proposed § 14.633(h)(1), 

VA proposes replacing the reference to 

38 CFR 19.9 with 38 CFR 20.904, to 

reflect the redesignation in the Board’s 

proposed regulations. 


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VA further proposes moving the 

second sentence in 14.633(h) to a new 

subsection 14.633(j) and adding 

‘‘suspension’’ to clarify that the General 

Counsel can in fact provide notice of 

both suspensions and cancellations of 

accreditation. The overall move is 

intended to provide clarity, as the 

paragraph in which this is currently 

located otherwise addresses appellate 

rights. The proposed addition fills in a 

gap in the existing regulations. In the 

preamble to the May 2007 proposed rule 

on Part 14, VA stated that the General 

Counsel could notify all agencies, 

courts, and bars to which the agent or 

attorney is admitted to practice of 

suspensions or cancellations, 72 FR 

25930, 25933 (May 7, 2007), but, in the 

regulation text, VA only specified 

cancellation. Id. at 25940; see also 73 FR 

at 29875 (final rule text). 

As discussed above with denials of 

accreditation, it is neither required nor 

prudent to provide all the same options 

and safeguards that apply to the new 

appellate system under Public Law 115– 

55 to decisions regarding the suspension 

or cancellation of accreditation. 

Section 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 

Currently, 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. This is 

also reflected in current 38 CFR 

14.636(c). VA proposes language in 

§ 14.636(c)(1)(i) to implement the 

change in section 2(n) of Public Law 

115–55 that fees may be charged by an 

accredited agent or attorney upon VA’s 

issuance of notice of an initial decision 

on a claim. In the same subsection of 

§ 14.636, VA proposes additional 

language, based on the effective date 

provisions in section 2(l) of Public Law 

115–55, to clarify the relationship 

between section 2(n) of Public Law 115– 

55 and the new adjudication 

procedures. Specifically, this clarifies 

whether a decision on a supplemental 

claim is considered a new initial 

decision, or whether it is part of the 

original adjudication string based on the 

effective date. The language VA 

proposes makes clear that a decision by 

an agency of original jurisdiction 

adjudicating a supplemental claim will 

be considered an initial decision on a 

claim unless the decision is made while 

the claimant continuously pursued the 

claim by choosing one of the three 

procedural options available under 

Public Law 115–55. 

In addition, VA proposes to add 

§ 14.636(c)(1)(ii), to clarify the effective 

dates emanating from Public Law 115– 

55 for attorney fee matters based on 

clear and unmistakable error. The 

language in proposed § 14.636(c)(1)(ii) 

mirrors the already existing regulatory 

text at current § 14.636(c)(1). 

Next, proposed § 14.636(c)(2)(i) 

contains minor language edits to 

accommodate for the implementation of 

the Public Law 115–55. Note that, 

although not specified in the proposed 

modified subsection, a Notice of 

Disagreement which has been 

withdrawn to opt in to the appeals 

modernization program will still satisfy 

the Notice of Disagreement requirement 

under paragraph (c)(2). 

Proposed § 14.636(i)(3) contains 

language to clarify that when the Chief 

Counsel closes the record in 

proceedings to review fee agreements, 

this is the record before the Office of the 

General Counsel. VA proposes this 

minor change in both § 14.636(i)(3) and 

(k) in order to maintain consistency. VA 

proposes to remove the instruction for 

filing a Notice of Disagreement with the 

Office of the General Counsel because, 

although that is correct under the legacy 

system, under the modernized appeals 

system the Notice of Disagreement 

should be filed directly with the Board. 

The Office of General Counsel form with 

the appellate rights will specify where 

the Notice of Disagreement should be 

filed. In addition, proposed § 14.636(k) 

contains language similar to that in 

proposed § 14.633(h), for the reasons 

stated in those sections above, to clarify 

the procedures for decisions issued 

before the effective date of the 

modernized review system, and on or 

after that date, the date that Public Law 

115–55 is scheduled to take effect. As 

required by Public Law 115–55, VA 

proposes to replace the term ‘‘reopened’’ 

with ‘‘readjudicated’’ in several places 

in the proposed § 14.636. 

Finally, because fee matters are 

simultaneously contested matters they 

are processed under the appellate 

procedures applicable to simultaneously 

contested claims. See Mason v. 

Shinseki, 743 F.3d 1370, 1374 (2014) 

(holding that disputes regarding 

eligibility for attorney’s fees withheld 

from past-due disability benefits are 

subject to the appeal deadlines for 

simultaneously contested claims). As 

explained elsewhere in this rulemaking, 

the additional options provided under 

Public Law 115–55 are not appropriate 

to simultaneously contested matters. 

Moreover, it is clear that decisions on 

fee matters differ from decisions on 

claims for VA benefits because they 

ultimately concern whether the terms of 

the private contract should be altered 

for public policy reasons. See Scates v. 

Principi, 282 F.3d 1362, 1366–66 

(finding that a contingency percentage 

agreed upon in a fee contract contains 

an ‘‘implicit . . . understanding’’ that 

the representative may not be entitled to 

the full percentage if the claimant 

terminates the representative’s services 

during the case). Compare Public Law 

115–55, 2(h)(1) (providing for three 

options for review), with 38 U.S.C. 

5904(c)(3) (specifying that a fee 

reasonableness decision may be 

reviewed by the Board pursuant to 

section 7104 to determine whether it is 

excessive or unreasonable); and 38 

U.S.C. 7263(d) (explaining that the 

Court of Appeals for Veterans Claim’s 

decision with regard to the 

reasonableness of the fee is a final 

determination that may not be reviewed 

by any other court). 

Section 14.637—Payment of the 

Expenses of Agents and Attorneys in 

Proceedings Before Agencies of Original 

Jurisdiction and Before the Board of 

Veterans’ Appeals 

Proposed § 14.637(d)(3) contains 

language to clarify that when the Chief 

Counsel closes the record in 

proceedings to review fee agreements, 

this is the record before the Office of the 

General Counsel. Also, in proposed 

§ 14.637(f), language similar to that in 

proposed §§ 14.633(h) and 14.636(k) is 

proposed to comply with Public Law 

115–55 and for the reasons stated with 

respect to those sections above. In 

addition, in § 14.637(d)(3), VA proposes 

to remove the instruction for filing a 

Notice of Disagreement with the Office 

of the General Counsel for the same 

reasons as stated in § 14.636(i)(3). 

Part 19—Board of Veterans’ Appeals: 

Appeals Regulations 

VA proposes to restructure and revise 

38 CFR part 19. As noted, Public Law 

115–55 applies to all claims for which 

notice of decision was provided on or 

after the effective date and to certain 

claims where a notice of decision was 

provided prior to that date, but the 

appellant opted to subject the claim to 

the new system. While Public Law 115– 

55 is primarily aimed at creating a new 

claims and appeals adjudication system, 

VA must also provide timely and 

quality decisions on legacy appeals. A 

legacy appeal is any appeal where the 

agency of original jurisdiction provided 

notice of a decision prior to the effective 

date and the appellant has not opted to 

have review of his or her appeal 

completed in the new system. When the 

new system becomes effective, VA will 

have approximately 500,000 pending 


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legacy appeals, and many of these 

legacy appellants will still be at a stage 

in their appeals where regulations 

concerning filing forms, motions, or 

other actions will be relevant. Thus, VA 

proposes to preserve and consolidate 

regulations concerning legacy appeals. 

This proposed rule would make part 

19 applicable only to legacy appeals; 

specifically, the processing of legacy 

appeals by the agency of original 

jurisdiction. Subparts F, G, and J of part 

20 would apply only to the processing 

and adjudication of legacy appeals by 

the Board. Except as otherwise provided 

in specific sections, subparts A, B, H, K, 

L, M, N, and O of part 20 would apply 

to the processing and adjudication of 

both appeals in the new system and 

legacy appeals. Subparts C, D, E, and I 

of part 20 would apply only to the 

processing and adjudication of appeals 

in the new system. 

VA proposes to revise the authority 

citations for individual sections in part 

19 and for certain sections in part 20 

applicable only to legacy appeals to 

identify the versions of statutes existing 

prior to the effective date of the 

modernized appeals system, as those 

statutes will continue to apply to legacy 

appeals. 

Finally, VA proposes minor updates 

to addresses. This minor change is not 

substantive. Currently, provisions 

containing the Board’s address for mail 

related to appeals direct that mail 

should be addressed to a particular 

office within the Board. In practice, all 

mail is processed in a central location 

at the Board and routed to the 

appropriate office internally. Therefore, 

VA proposes to strike all references to 

specific offices or personnel at the 

Board in references to the Board’s 

address. 

The following distribution table 

shows where each section of current 

part 19 is proposed to be moved. 

Old section New section 

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

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

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

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

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

19.7 ................ 20.903; similar in 20.802. 

19.8 ................ 20.905; similar in 20.804. 

19.9 ................ 20.904; similar in 20.803. 

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

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

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

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

19.27 .............. Removed. 

19.33 .............. Removed. 

19.50 .............. Removed. 

19.51 .............. Removed. 

19.52 .............. Removed. 

19.53 .............. Removed. 

19.75 .............. 20.603. 

Old section New section 

19.76 .............. 20.602. 

Subpart A—Applicability 

VA proposes to amend subpart A— 

Operation of the Board of Veterans’ 

Appeals, by moving all sections into 

part 20. Generally applicable provisions 

are proposed to be moved into subpart 

B of part 20, while provisions applicable 

to adjudication of legacy appeals are 

proposed to be moved to subpart J of 

part 20. 

VA proposes to add new provisions to 

subpart A of part 19 that explain the 

applicability of part 19. 

§ 19.1 Provisions Applicable to Legacy 

Appeals 

New § 19.1 is proposed to help 

claimants understand which appeals 

system applies to their claim, and to 

provide specific instructions for legacy 

claimants to locate the regulations 

applicable to their appeal. 

§ 19.2 Appellant’s Election for Review 

of a Legacy Appeal in the Modernized 

System 

New § 19.2 is proposed to explain 

options that may be available for legacy 

claimants to have their claim or appeal 

considered in the new system. This 

includes electing the modernized 

review system pursuant to 38 CFR 

3.2400(c)(1), following issuance of a 

Statement of the Case or Supplemental 

Statement of the Case on or after the 

effective date, or pursuant to any test 

program implemented by the Board. 

Subpart B—Legacy Appeals Processing 

by Agency of Original Jurisdiction 

VA proposes to restructure subpart B 

of part 19 in order to consolidate 

procedures relating to legacy appeal 

processing by the agency of original 

jurisdiction. Subpart C of part 20 deals 

with commencement and perfection of 

appeals. As these procedures require 

action by the agency of original 

jurisdiction rather than the Board, and 

are only applicable to appeals in the 

legacy system, VA proposes to move 

these provisions to subpart B of part 19. 

§ 19.20 What Constitutes an Appeal 

VA proposes to redesignate § 20.200 

as § 19.20, and update citations. 

§ 19.21 Notice of Disagreement 

VA proposes to redesignate § 20.201 

as § 19.21, and update citations. 

§ 19.22 Substantive Appeal 

VA proposes to redesignate § 20.202 

as § 19.22, and update citations. 

§ 19.23 Applicability of Provisions 

Concerning Notice of Disagreement 

VA proposes to update the citations in 

§ 19.23. 

§ 19.24 Action by Agency of Original 

Jurisdiction on Notice of Disagreement 

Required To Be Filed on a Standardized 

Form 

VA proposes to update the citations in 

§ 19.24. 

§ 19.25 Notification by Agency of 

Original Jurisdiction of Right To Appeal 

VA does not propose any changes to 

§ 19.25. 

§ 19.26 Action by Agency of Original 

Jurisdiction on Notice of Disagreement 

VA does not propose any changes to 

§ 19.26. 

§ 19.27 [Reserved] 

Section 2, paragraph (s) of Public Law 

115–55 repeals procedures for 

administrative appeals by striking 

section 7106 of title 38 of the United 

States Code. Therefore, VA proposes to 

remove § 19.27, relating to 

administrative appeals. 

§ 19.28 Determination That a Notice of 

Disagreement Is Inadequate Protested by 

Claimant or Representative 

VA does not propose any changes to 

§ 19.28. 

§ 19.29 Statement of the Case 

VA does not propose any changes to 

§ 19.29. 

§ 19.30 Furnishing the Statement of 

the Case and Instructions for Filing a 

Substantive Appeal 

Section 2, paragraph (x)(5) of Public 

Law 115–55 provides that a legacy 

appellant may elect to subject his or her 

appeal to the new system upon receipt 

of a Statement of the Case (SOC) or 

Supplemental Statement of the Case 

(SSOC). Therefore, VA proposes to 

amend § 19.30 by requiring that all 

SOCs contain information on how to opt 

into the new system. 

§ 19.31 Supplemental Statement of the 

Case 

VA proposes to amend § 19.31 by 

requiring that all SSOCs contain 

information on how to opt into the new 

system. 

§ 19.32 Closing of Appeal for Failure 

To Respond to Statement of the Case 

VA does not propose any changes to 

§ 19.32. 

§ 19.33 [Reserved] 

Section 2, paragraph (s) of Public Law 

115–55 repeals procedures for 


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administrative appeals by striking 

section 7106 of title 38 of the United 

States Code. Therefore, VA proposes to 

remove § 19.33, relating to 

administrative appeals. 

§ 19.34 Determination that Notice of 

Disagreement or Substantive Appeal 

Was Not Timely Filed Protested by 

Claimant or Representative 

VA does not propose any changes to 

§ 19.34. 

§ 19.35 Certification of Appeals 

Currently, certification to the Board 

may only be accomplished by 

completion of a VA Form 8. This 

requirement creates cumbersome 

administrative and technological 

processes which often delay 

certification of appeals, but do not serve 

Veterans in any way. Therefore, VA 

proposes to amend § 19.35 to eliminate 

the requirement for a Form 8, and will 

accomplish certification through other 

means. 

§ 19.36 Notification of Certification of 

Appeal and Transfer of Appellate 

Record 

VA proposes to update the citations in 

§ 19.36. 

§ 19.37 Consideration of Additional 

Evidence Received by the Agency of 

Original Jurisdiction After an Appeal 

Has Been Initiated 

VA does not propose any changes to 

§ 19.37. 

§ 19.38 Action by Agency of Original 

Jurisdiction When Remand Received 

VA proposes to update the citations in 

§ 19.38. 

Subpart C—Claimant Action in a Legacy 

Appeal 

As noted, section 2, paragraph (s) of 

Public Law 115–55 repeals procedures 

for administrative appeals by striking 

section 7106 of title 38 of the United 

States Code. As this amendment is 

applicable to all appeals, VA proposes 

to remove subpart C of part 19, dealing 

with administrative appeals. 

VA proposes to restructure subpart C 

of part 19 in order to consolidate 

procedures relating to commencement 

and filing of legacy appeals. Subpart D 

of part 20 deals with commencement 

and filing of appeals, including 

procedures for Statements of the Case. 

As these procedures require action by 

the agency of original jurisdiction rather 

than the Board, and are only applicable 

to appeals in the legacy system, VA 

proposes to move these provisions to 

subpart C of part 19. 

§ 19.50 Who Can File an Appeal 

VA proposes to redesignate § 20.301 

as § 19.50. 

§ 19.51 Place of Filing Notice of 

Disagreement and Substantive Appeal 

VA proposes to redesignate § 20.300 

as § 19.51. 

§ 19.52 Time Limit for Filing Notice of 

Disagreement, Substantive Appeal, and 

Response to Supplemental Statement of 

the Case 

VA proposes to redesignate § 20.302 

as § 19.52. 

§ 19.53 Extension of Time for Filing 

Substantive Appeal and Response to 

Supplemental Statement of the Case 

VA proposes to redesignate § 20.303 

as § 19.53. 

§ 19.54 Filing Additional Evidence 

Does Not Extend Time Limit for Appeal 

VA proposes to redesignate § 20.304 

as § 19.54. 

§ 19.55 Withdrawal of Appeal 

VA proposes to redesignate § 20.204 

as § 19.55, add an address update, and 

add an internal reference. 

Subpart D—[Reserved] 

VA proposes to remove and reserve 

the two provisions of subpart D, dealing 

with field hearings. These provisions 

will be incorporated into subpart G of 

part 20, in order to streamline 

regulations concerning Board hearing 

procedures. 

Subpart E—Simultaneously Contested 

Claims 

VA does not propose any substantive 

changes to the procedures for 

simultaneously contested legacy claims, 

consisting of §§ 19.100–19.102. 

Appendix A to Part 19—CrossReferences 

VA proposes to remove Appendix A 

to part 19, as it has outlived its 

usefulness. Cross-references currently 

located in the table are outdated or 

incorrect. Whereas a user may have 

previously used the appendix to search 

for other sections pertinent to a 

particular regulation, such research may 

be accomplished much more efficiently 

via a search of the electronic document. 

Part 20—Board of Veterans’ Appeals: 

Rules of Practice 

As noted, VA proposes to restructure 

subparts A and B of part 20 by adding 

generally applicable provisions from 

part 19 and new provisions explaining 

applicability and new definitions. The 

following distribution table shows 

where each section of current part 20 is 

proposed to be moved. 

Old section New section 

20.100 ............ 20.102. 

20.101 ............ 20.104. 

20.102 ............ 20.110. 

20.200 ............ 19.20; similar in 20.201. 

20.201 ............ 19.21; similar in 20.202. 

20.202 ............ 19.22. 

20.204 ............ 19.55; similar in 20.205. 

20.300 ............ 19.51; similar in 20.203. 

20.301 ............ 19.50; similar in 20.204. 

20.302 ............ 19.52; similar in 20.203. 

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

20.304 ............ 19.54. 

20.305 ............ 20.110. 

20.306 ............ 20.111. 

20.400 ............ Removed. 

20.401 ............ Removed. 

20.500 ............ 20.501. 

20.501 ............ 20.502. 

20.502 ............ 20.503. 

20.503 ............ 20.504. 

20.504 ............ 20.505. 

20.600 ............ 20.5. 

20.608 ............ 20.6. 

20.702 ............ 20.704; similar in 20.603. 

20.703 ............ 20.602. 

20.704 ............ 20.603. 

20.705 ............ 20.601; similar in 20.702. 

20.706 ............ 20.705. 

20.707 ............ 20.604; similar in 20.706. 

20.708 ............ 20.707. 

20.709 ............ 20.605. 

20.710 ............ 20.708. 

20.711 ............ 20.709. 

20.712 ............ 20.710. 

20.713 ............ 20.711. 

20.714 ............ 20.712. 

20.715 ............ 20.713. 

20.716 ............ 20.714. 

20.717 ............ 20.715. 

20.800 ............ 20.901. 

20.900 ............ 20.902; similar in 20.801. 

20.901 ............ 20.906; similar in 20.805. 

20.902 ............ 20.907. 

20.903 ............ 20.908. 

20.904 ............ 20.1000. 

20.1000 .......... 20.1001. 

20.1001 .......... 20.1002. 

20.1003 .......... 20.1003. 

20.1502 .......... Removed. 

20.1504 .......... Removed. 

20.1505 .......... Removed. 

20.1506 .......... Removed. 

20.1507 .......... Removed. 

20.1508 .......... Removed. 

20.1509 .......... Removed. 

Subpart A—General 

§ 20.1 Rule 1. Purpose and 

Construction of Rules of Practice 

VA proposes a minor edit to § 20.1, to 

provide the common name for the Board 

of Veterans’ Appeals. 

§ 20.2 Rule 2. Procedure in Absence of 

Specific Rule of Practice 

VA proposes no changes. 


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§ 20.3 Rule 3. Definitions 

VA proposes minor edits to § 20.3 

Definitions, to remove terms that are no 

longer used in part 20, or are defined 

elsewhere in the part. VA also proposes 

to adopt the definition of ‘‘claim’’ used 

in part 3 of this title. 

§ 20.4 Rule 4. Appeal Systems 

Definitions and Applicability Provisions 

VA proposes to add new § 20.4, 

appeal systems definitions and 

applicability provisions, to provide 

definitions and an explanation of the 

applicability of the new system. 

Proposed § 20.4 assists appellants in 

understanding which system applies to 

their appeal. It provides specific 

instructions for appellants to locate the 

regulations applicable to their appeal, 

and explains options that may be 

available for legacy claimants to take 

advantage of the new system. 

§ 20.5 Rule 5. Right to Representation 

VA proposes to redesignate § 20.600 

as § 20.5. 

§ 20.6 Rule 6. Withdrawal of Services 

by a Representative 

VA proposes to redesignate § 20.608 

as § 20.6, and make minor changes to 

reflect the different procedures for 

withdrawal of representatives in legacy 

appeals and appeals in the new system. 

Specifically, current § 20.608 draws a 

distinction between withdrawal of 

services by a representative prior to 

certification to the Board, and 

withdrawal after certification. In the 

new appeals system, Notices of 

Disagreement are filed directly to the 

Board, and thus the certification process 

will not be applicable to new appeals. 

Proposed § 20.6 clarifies that the rules 

governing withdrawal of representation 

after certification apply to both appeals 

in the legacy system that have been 

certified, and all appeals in the new 

system. The rules governing withdrawal 

of representation prior to certification 

apply only to legacy appeals that have 

not yet been certified. 

Subpart B—The Board 

§ 20.100 Rule 100. Establishment of 

the Board 

VA proposes to redesignate § 19.1 as 

§ 20.100. 

§ 20.101 Rule 101. Composition of the 

Board; Titles 

VA proposes to redesignate § 19.2 as 

§ 20.101. 

§ 20.102 Rule 102. Name, Business 

Hours, and Mailing Address of the 

Board 

VA proposes to redesignate § 20.100 

as § 20.102 and update the mailing 

address. 

§ 20.103 Rule 103. Principal Functions 

of the Board 

VA proposes to redesignate § 19.4 as 

§ 20.103. 

§ 20.104 Rule 104. Jurisdiction of the 

Board 

VA proposes to redesignate § 20.101 

as § 20.104, and make minor changes. 

Specifically, VA proposes to reverse 

paragraphs (c) and (d) to condense 

information applicable only to legacy 

appeals. VA also proposes to 

redesignate § 19.5 as § 20.105. This 

move would make the third sentence of 

§ 20.104(a) redundant. Thus, VA 

proposes to remove that sentence from 

§ 20.104, and incorporate it with 

§ 20.105. Citations are also updated. 

§ 20.105 Rule 105. Criteria Governing 

Disposition of Appeals 

As noted above, VA proposes to 

redesignate § 19.5 as § 20.105 and clarify 

that the criteria governing the 

disposition of appeals also applies to 

decisions of the Board. Proposed 

§ 20.105 includes the rules governing 

precedent opinions of the General 

Counsel of the Department of Veterans 

Affairs which are currently duplicated 

in § 20.104(a) and § 19.5. This 

nonsubstantive change reduces 

redundant paragraphs and simplifies the 

rule. 

§ 20.106 Rule 106. Assignment of 

Proceedings 

VA proposes to redesignate § 19.3 as 

§ 20.106. 

§ 20.107 Rule 107. Disqualification of 

Members 

VA proposes to redesignate § 19.12 as 

§ 20.107 and remove paragraph (b), 

dealing with administrative appeals. 

§ 20.108 Rule 108. Delegation of 

Authority to Chairman and Vice 

Chairman, Board of Veterans’ Appeals 

VA proposes to redesignate § 19.13 as 

§ 20.108. 

§ 20.109 Rule 109. Delegation of 

Authority to Vice Chairman, Deputy 

Vice Chairman, or Members of the 

Board 

VA proposes to combine current 

§ 19.14 with § 20.102 and redesignate 

the section as § 20.109, and update 

citations. This nonsubstantive change 

reduces redundant paragraphs and 

simplifies the rule. 

§ 20.110 Rule 110. Computation of 

Time Limit for Filing 

VA proposes to redesignate § 20.305 

as § 20.110. 

§ 20.111 Rule 111. Legal Holidays 

VA proposes to redesignate § 20.306 

as § 20.111 and update the citations. 

Subpart C—Commencement and Filing 

of Appeals 

VA proposes to add a new subpart C, 

applicable only to appeals in the new 

system. Provisions in current subpart C 

applicable to legacy appeals would be 

redesignated and moved to part 19 as 

described elsewhere in this document. 

Proposed subpart C contains provisions 

dealing with the filing of a Notice of 

Disagreement. Although Public Law 

115–55 makes some changes to Notice 

of Disagreement filing procedures, many 

of these procedures will remain the 

same; therefore, the proposed 

regulations contained in subpart C are 

similar to the Notice of Disagreement 

regulations currently in place. 

§ 20.200 Rule 200. Notification by 

Agency of Original Jurisdiction of Right 

To Appeal 

VA proposes to add new § 20.200, 

similar to current § 19.25. 

§ 20.201 Rule 201. What Constitutes an 

Appeal 

VA proposes to add new § 20.201, 

similar to current § 20.200. The 

amendments made to 38 U.S.C. 7105 

direct that an appeal to the Board is 

accomplished by filing a Notice of 

Disagreement directly to the Board. 

Therefore, proposed § 20.201 reflects 

this change in procedure. 

§ 20.202 Rule 202. Notice of 

Disagreement 

VA proposes to add new § 20.202, 

similar to current § 20.201. Public Law 

115–55 requires that appellants indicate 

on their Notice of Disagreement the 

specific determination with which they 

disagree, and whether they request a 

Board hearing (which includes the 

opportunity to submit additional 

evidence within 90 days following the 

Board hearing), an opportunity to 

submit additional evidence within 90 

days following submission of the Notice 

of Disagreement, or direct review of the 

evidence that was before the agency of 

original jurisdiction by the Board. Thus, 

paragraphs (a) and (b) of proposed 

§ 20.202 reflect these changes to the 

information that must be indicated on 

the Notice of Disagreement. 


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Public Law 115–55 requires that VA 

create a policy allowing appellants to 

change the information indicated on the 

Notice of Disagreement, meaning that an 

appellant may request to change the 

evidentiary record before the Board. In 

crafting this policy, VA sought to 

provide appellants with an opportunity 

to change their initial election if their 

circumstances or preference changed. 

However, VA also wanted to prevent an 

appellant from unfairly gaining the 

advantage of two dockets. For example, 

an appellant should not be permitted to 

take advantage of the faster direct 

review docket if he or she has already 

submitted evidence or testified at a 

Board hearing. 

Additionally, VA sought to limit the 

time period in which appellants may 

request to modify the Notice of 

Disagreement. VA has established a 365- 

day timeliness goal for appeals in the 

direct review docket. VA also intends to 

provide wait time predictions for the 

evidence and hearing dockets. If 

appellants are able to modify their 

Notices of Disagreement, and thereby 

change dockets at any time prior to the 

Board’s decision on the issue or issues, 

VA will not be able to provide accurate 

wait time information. This would 

diminish the ability of other Veterans to 

make informed choices as to which of 

the Board’s dockets best suits their 

individual needs. 

Proposed § 20.202(c)(1) provides that 

the appellant’s election of an 

evidentiary record on the Notice of 

Disagreement determines the docket on 

which the appeal is placed, and that the 

Board will not consider additional 

evidence or schedule a hearing unless 

the appellant indicated one of those 

options on the Notice of Disagreement. 

Paragraph (c)(2) provides that an 

appellant may modify the Notice of 

Disagreement for the purpose of 

selecting a different evidentiary record 

option. The request to modify must be 

made within one year of the agency of 

original jurisdiction decision on appeal, 

or 30 days after the Notice of 

Disagreement is received by the Board, 

whichever is later. The request will be 

denied if the appellant has already 

submitted evidence or testimony. 

Additionally, nothing in the 

regulations prevent an appellant from 

filing multiple Notices of Disagreement 

within the one-year period. Therefore, if 

an appellant wants to add additional 

issues not initially included on the 

Notice of Disagreement, the appellant is 

free to submit an additional Notice of 

Disagreement identifying these issues, 

as long as this additional Notice of 

Disagreement is timely submitted. 

Paragraphs (f) and (g) of proposed 

§ 20.202 provide procedures for how the 

Board will handle unclear or deficient 

Notices of Disagreement. The new 

framework shifts jurisdiction to the 

Board for any question as to the 

adequacy of Notices of Disagreement. 

Veterans Law Judges will retain their 

discretion to interpret some unclear 

statements on Notices of Disagreements 

in the light most favorable to the 

Veteran. However, proposed paragraphs 

(f) and (g) are necessary to outline the 

procedures the Board will take when an 

inadequate Notice of Disagreement is 

received at the Board. Specifically, the 

proposed rule addresses the problem 

created when the Board receives a 

Notice of Disagreement electing more 

than one evidentiary option, no 

evidentiary option, or when it is 

otherwise unclear how the appeal 

should be docketed. 

The proposed rule is closely aligned 

with the process for clarifying Notices of 

Disagreement in the legacy appeals 

system. When the Board receives an 

unclear or deficient Notice of 

Disagreement, the Board will notify the 

claimant and request clarification. The 

claimant must respond with the 

requested clarification within one year 

after the agency of original jurisdiction 

decision, or 60 days after the date of the 

Board’s clarification request, whichever 

is later. If the claimant does not provide 

a timely response, the previous 

statement from the claimant will not be 

considered a Notice of Disagreement. 

Paragraph (h) of proposed § 20.202 

provides that, when an unclear Notice 

of Disagreement is properly clarified, 

the Notice of Disagreement will be 

considered to have been properly filed 

on the date of clarification. This means 

that the docket date will be based upon 

the date of the clarification, and if the 

appellant requests to submit evidence, 

the 90-day window for evidence 

submission will begin on the date of 

clarification. 

§ 20.203 Rule 203. Place and Time of 

Filing Notice of Disagreement 

VA proposes to add new § 20.203, 

similar to the provisions of current 

§§ 20.300 and 20.302. Proposed § 20.203 

differs from current §§ 20.300 and 

20.302 in that Public Law 115–55 

requires that Notices of Disagreement 

are filed with the Board. In contrast, 

current §§ 20.300 and 20.302 provide 

that Notices of Disagreement are filed 

with the agency of original jurisdiction. 

§ 20.204 Rule 204. Who Can File a 

Notice of Disagreement 

VA proposes to add new § 20.204, 

similar to current § 20.301. Proposed 

§ 20.204 differs from current § 20.301 in 

that the provisions of § 20.301 also 

apply to the filing of a Substantive 

Appeal. Public Law 115–55 eliminates 

procedures relating to Substantive 

Appeals; therefore, proposed § 20.204 

does not discuss Substantive Appeals. 

§ 20.205 Rule 205. Withdrawal of 

Appeal 

VA proposes to add new § 20.205, 

similar to current § 20.204. Proposed 

§ 20.205 differs from the rules for 

withdrawal of a legacy appeal in that 

paragraph (c) of proposed § 20.205 

provides that, in addition to filing a new 

Notice of Disagreement, a claimant may 

request a higher-level review or file a 

supplemental claim following the 

withdrawal of the Notice of 

Disagreement, provided such filing 

would be timely. 

Subpart D—Evidentiary Record 

VA proposes to add new subpart D, 

Evidentiary Record, in place of current 

subpart D, Filing, which VA proposes to 

move to part 19. New subpart D is 

proposed to implement 38 U.S.C. 7113, 

a new section added by Public Law 

115–55 to establish the evidentiary 

record before the Board. The evidentiary 

record before the Board is determined 

by the appellant’s election on his or her 

Notice of Disagreement. The appellant’s 

election will determine whether the 

Board considers (1) only the evidence 

that was of record at the time of the 

prior agency of original jurisdiction 

decision; (2) the evidence that was of 

record before at the time of the prior 

agency of original jurisdiction decision 

and any additional evidence submitted 

within 90 days of submission of the 

Notice of Disagreement; or (3) the 

evidence that was of record at the time 

of the prior agency of original 

jurisdiction decision and any evidence 

submitting during, or within 90 days 

thereafter, the Board hearing. 

§ 20.300 Rule 300. General 

Proposed § 20.300 provides that 

decisions of the Board will be based on 

a de novo review of the evidence, as 

provided in § 20.801. 

§ 20.301 Rule 301. Appeals With No 

Request for a Board Hearing and No 

Additional Evidence 

Proposed § 20.301 provides that, for 

appeals with no request to appear at a 

hearing or submit additional evidence, 

the Board will consider only the 

evidence that was before the agency of 

original jurisdiction in the decision on 

appeal. 


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§ 20.302 Rule 302. Appeals With a 

Request for a Board Hearing 

Proposed § 20.302 provides that, for 

appeals with a request for a Board 

hearing, the Board will consider the 

evidence that was before the agency of 

original jurisdiction in the decision on 

appeal, testimony presented at a Board 

hearing, and any additional evidence 

submitted within 90 days of the Board 

hearing. 

Public Law 115–55 does not describe 

the evidentiary record in the event that 

a hearing request is withdrawn or the 

appellant does not appear for a 

scheduled hearing. Thus, the Board 

proposes paragraphs (b) and (c) of 

§ 20.302 to specify that appellants who 

requested a hearing on the Notice of 

Disagreement, but ultimately do not 

appear for a hearing will retain the 

opportunity to submit additional 

evidence within a 90-day window. 

§ 20.303 Rule 303. Appeals With No 

Request for a Board Hearing, But With 

a Request for Submission of Additional 

Evidence 

Proposed § 20.303 provides that, for 

appeals with no request for a Board 

hearing, but with a request to submit 

additional evidence, the Board will 

consider the evidence that was before 

the agency of original jurisdiction in the 

decision on appeal, and any additional 

evidence submitted with the Notice of 

Disagreement or within 90 days 

following receipt of the Notice of 

Disagreement. As noted above, when an 

appellant requests to modify the Notice 

of Disagreement for the purpose of 

requesting an opportunity to submit 

additional evidence, the Board will 

notify the appellant whether the request 

has been granted, and if so, that the 

appeal has been moved to the docket for 

appeals described in this section. The 

90-day window for submission of 

additional evidence will begin on the 

date of such notice. 

Public Law 115–55 requires that VA 

create at least two new dockets—a 

docket for appeals with a request for a 

Board hearing and a docket for appeals 

with no request for a Board hearing— 

but affords VA discretion to create 

additional dockets. VA proposes to 

establish three dockets for appeals 

adjudicated under the modernized 

appeals system. The first docket is for 

Veterans who do not want a hearing and 

do not wish to submit additional 

evidence, as provided by proposed 

§ 20.301. The second docket is for 

Veterans who wish to have a hearing, as 

provided by proposed § 20.302. Finally, 

the third docket is for Veterans who 

wish to submit additional evidence, but 

do not want a hearing before a Veterans 

Law Judge. 

Creation of these three separate 

dockets has multiple benefits. Most 

importantly, this docket structure 

provides greater opportunity for 

Veterans to tailor their appeals 

experience to best suit their individual 

needs. The first 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. Allowing additional 

evidence submission for appeals in the 

docket described in proposed § 20.301 

would break this quality feedback loop. 

Veterans with a strong preference to 

appear at a Board hearing before a 

Veterans Law Judge may choose the 

docket described in proposed § 20.302. 

The docket described in proposed 

§ 20.303 allows Veterans to submit 

additional evidence that may assist in 

establishing entitlement to benefits, 

without the wait time that is associated 

with Board hearings. Public Law 115–55 

does not permit appeals with no request 

for a hearing to be placed on the same 

docket as appeals with a request for a 

hearing. See Public Law 115–55, section 

2(t), amending 38 U.S.C. 7107(a)(3). 

Therefore, creation of the third docket 

described in proposed § 20.303 is 

necessary to provide Veterans with the 

option to submit additional evidence 

without a hearing. 

There is no cost associated with 

establishing the docket described in 

proposed § 20.303. The technological 

system required to track and manage 

appeals at the Board is designed to 

maintain multiple dockets in both the 

legacy and modernized appeals systems, 

as required by law. Adding a third 

docket to process appeals with no 

request for a Board hearing, but with a 

request to submit additional evidence 

does not result in any additional cost 

from an information technology 

development perspective. Moreover, 

there is no additional cost associated 

with the adjudication of such appeals, 

as the Board will apply the same 

substantive law regarding entitlement to 

benefits to all appeals. There is no 

additional administrative or 

adjudicative burden caused by 

maintaining a separate docket for 

evidence submission. 

Subpart E—Appeal in Simultaneously 

Contested Claims 

VA proposes to add new subpart E, 

Appeal in Simultaneously Contested 

Claims, in place of current subpart E, 

Administrative Appeals, which Public 

Law 115–55 repeals. Proposed subpart E 

would largely mirror subpart F, which 

VA proposes to make applicable only to 

legacy appeals. Subpart E would differ 

from subpart F insofar as the procedures 

for filing an appeal in the new system 

differ from those in the legacy system. 

For example, subpart F continues to 

describe notice and filing requirements 

for formal appeals and Statements of the 

Case. As Public Law 115–55 repeals 

procedures for formal appeals and 

Statements of the Case, subpart E does 

not have provisions related to these 

procedures. As discussed above, under 

the proposed new framework, 

simultaneously contested claims may 

only be appealed to the Board. 

Additionally, proposed subpart E 

addresses the circumstances—unique to 

the new framework, in which contesting 

parties request different evidentiary 

options. 

§ 20.400 Rule 400. Notification of the 

Right To Appeal in a Simultaneously 

Contested Claim 

Proposed § 20.401, similar to current 

§ 19.100, describes the notification 

procedures when the agency of original 

jurisdiction takes an action in a 

simultaneously contested claim. 

§ 20.401 Rule 401. Who Can File an 

Appeal in Simultaneously Contested 

Claims 

Proposed § 20.401, similar to current 

§ 20.500, describes who can file an 

appeal in simultaneously contested 

claims. 

§ 20.402 Rule 402. Time Limits for 

Filing Notice of Disagreement in 

Simultaneously Contested Claims 

Proposed § 20.402, similar to current 

§ 20.501, describes the time limits for 

filing a Notice of Disagreement in a 

simultaneously contested claim. 

§ 20.403 Rule 403. Notice to 

Contesting Parties on Receipt of Notice 

of Disagreement in Simultaneously 

Contested Claims 

Proposed § 20.403, similar to current 

§ 20.502, also specifies that the notice to 

contesting parties upon receipt of a 

Notice of Disagreement must indicate 

the type of review requested by the 

appellant who initially filed the Notice 

of Disagreement, including whether a 

hearing was requested. 

§ 20.404 Rule 404. Time Limit for 

Response to Appeal by Another 

Contesting Party in a Simultaneously 

Contested Claim 

Proposed § 20.404 provides that a 

party to a simultaneously contested 

claim may file a brief, argument, or 


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request for a different type of review 

under § 20.202(b) in answer to a Notice 

of Disagreement filed by another 

contesting party. 

§ 20.405 Rule 405. Docketing of 

Simultaneously Contested Claims at the 

Board 

Proposed § 20.405 resolves any 

conflict between two parties who 

request different evidentiary options 

under § 20.202(b). The proposed rule 

provides that, if any party requests a 

hearing before the Board, the appeal 

will be placed on the hearing docket 

and a hearing will be scheduled. If 

neither party requests a hearing, but any 

party requests an opportunity to submit 

additional evidence, the appeal will be 

placed on the evidence docket. VA will 

notify both parties when an appeal is 

placed on any docket. If the appeal is 

placed on the evidence docket, the 

parties will have 90 days from the date 

of such notice in which to submit 

additional evidence. 

§ 20.406 Rule 406. Notices Sent to Last 

Addresses of Record in Simultaneously 

Contested Claims 

Proposed § 20.406, similar to current 

§ 20.504, describes the procedures for 

sending notice to parties in contested 

claims. 

§ 20.407 Rule 407. Favorable Findings 

Are Not Binding in Contested Claims 

The favorable finding rule is 

impossible to apply in the context of 

contested claims, because a particular 

factual finding might be favorable to one 

appellant but unfavorable to another. 

Because the application of this rule in 

the context of simultaneously contested 

claims would produce absurd results, 

proposed § 20.407 clearly provides that 

favorable findings are not binding in the 

context of simultaneously contested 

appeals. 

Subpart F—Legacy Appeal in 

Simultaneously Contested Claims 

VA proposes to add new ‘‘§ 20.500 

Rule 500. Applicability.’’ in order to 

better inform appellants as to which 

subpart is applicable to their appeal. 

Aside from renumbering to 

accommodate the new applicability 

section and necessary citation updates, 

VA does not propose additional changes 

to subpart F. 

Subpart G—Legacy Hearings on Appeal 

As noted above, VA proposes to 

redesignate § 20.600 and § 20.608, 

dealing with representation, to subpart 

B, as these provisions are generally 

applicable to both appeals systems. 

Proposed new subpart G would contain 

special provisions for hearings in legacy 

appeals, while amendments to subpart 

H are proposed to make that subpart 

applicable to hearings on appeals in 

both systems. 

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. In relevant 

part, Public Law 114–315, by amending 

38 U.S.C. 7107, establishes the Board’s 

authority, 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. 

Notably, field hearings will only be 

available in the legacy system. 

Therefore, provisions applicable to field 

hearings, currently contained in subpart 

D of part 19, and subpart H of part 20, 

are proposed to be moved into subpart 

G. 

§ 20.600 Rule 600. Applicability 

VA proposes new § 20.600 to assist 

appellants in determining the hearing 

regulations applicable to their appeal. 

§ 20.601 Rule 601. Methods by Which 

Hearings in Legacy Appeals Are 

Conducted; Scheduling and Notice 

Provisions for Such Hearings 

VA proposes to redesignate § 20.705 

as § 20.601, and amend to reflect the 

procedures applicable only to legacy 

appeals. Proposed § 20.601 would 

clarify that a hearing before the Board 

may be conducted via an in-person 

hearing held at the Board’s principal 

location in Washington, DC, via 

electronic means, or at a Department of 

Veterans Affairs facility having adequate 

physical resources and personnel for the 

support of such hearings. Further, 

proposed § 20.601 informs the reader 

that procedures for scheduling and 

providing notice of Board hearings in 

legacy appeals conducted at the Board’s 

principal location or via electronic 

means are contained in § 20.704, while 

procedures for scheduling and 

providing notice of Board hearings in 

legacy appeals conducted at field 

facilities are contained in § 20.603. 

§ 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 

VA proposes to retitle, revise, and 

expand § 20.703, redesignated as 

§ 20.602, to clarify when and how 

legacy appellants may request hearings 

before the Board. These revisions 

implement the changes to 38 U.S.C. 

7107 that require the Board to determine 

the method of a hearing and notify the 

appellant of its decision. As noted, 

although the Board will now be making 

the initial determinations regarding the 

method by which hearings will be 

conducted, appellants’ rights to request 

a different type of hearing are preserved. 

Also, the Board alone will provide 

notification of the method and 

scheduling of hearings. 

§ 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 

VA proposes to combine § 19.75 and 

§ 20.704, and to redesignate as § 20.603. 

Proposed § 20.603 will clarify the 

procedures for the scheduling of 

hearings at VA field facilities. Field 

hearings for legacy appeals are 

scheduled in relationship to the need 

for the entire docket. Field hearing 

requests for legacy appeals are now 

handled by the Board alone and timing 

for requests is clarified. Citations and 

address are updated. 

§ 20.604 Rule 604. Designation of 

Member or Members To Conduct the 

Hearing in a Legacy Appeal 

VA proposes to redesignate § 20.707 

as § 20.604, and amend the section to 

differentiate the procedures for legacy 

appeals. Citations are also updated. 

§ 20.605 Rule 605. Procurement of 

Additional Evidence Following a 

Hearing in a Legacy Appeal 

VA proposes to redesignate § 20.709 

as § 20.605, and amend the section title 

to reflect that the provision is only 

applicable to legacy appeals. As notice, 

the evidentiary record in the new 

system is governed by subpart D. 

Subpart H—Hearings on Appeal 

No changes are proposed to § 20.701. 

§ 20.700 Rule 700. General 

VA proposes to amend § 20.700 by 

removing outdated procedures for 

representatives to present oral 

arguments on an audio cassette. It is the 

Board’s practice to accept written 

arguments from a representative in the 

form of informal hearing presentations. 

Additionally, the presiding member 

may accept oral argument from a 

representative. This amendment will 

not disrupt those practices. 

VA also proposes to remove 

paragraph (e), regarding electronic 

hearings, as these procedures are 

described in § 20.702(b). 


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§ 20.702 Rule 702. Methods by Which 

Hearings Are Conducted 

VA proposes new § 20.702, describing 

the types of hearings available to 

appellants in the new system. Similar to 

current § 20.705 (proposed here to be 

redesignated as § 20.601), this section 

will provide appellants and other 

readers with a clear understanding of 

the different methods by which Board 

hearings are conducted. Proposed 

§ 20.702 would clarify that a hearing 

before the Board may be conducted via 

electronic means or via an in-person 

hearing held at the Board’s principal 

location in Washington, DC. 

§ 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 

VA proposes new § 20.703 to clarify 

when and how appellants may request 

hearings before the Board. These 

revisions implement the changes to 38 

U.S.C. 7107 that require the Board to 

determine the method of a hearing and 

notify the appellant of its decision. As 

noted, although the Board will now be 

making the initial determinations 

regarding the method by which hearings 

will be conducted, appellants’ rights to 

request a different type of hearing are 

preserved. 

§ 20.704 Rule 704. Scheduling and 

Notice of Hearings Conducted by the 

Board of Veterans’ Appeals 

VA proposes to redesignate § 20.702 

as § 20.704, and amend to reflect 

scheduling and notice procedures 

applicable to appeals in the new system, 

similar to § 20.603, applicable only to 

hearings in the legacy system. 

§ 20.705 Rule 705. Functions of the 

Presiding Member 

VA proposes to redesignate § 20.706 

as § 20.705, and amend the section to 

provide a more comprehensive list of 

functions of the presiding Member 

conducting the Board hearing. 

§ 20.706 Rule 706. Designation of 

Member or Members To Conduct the 

Hearing 

VA proposes to add new § 20.706 to 

differentiate the procedures for appeals 

in the new system, similar to proposed 

§ 20.604, applicable to legacy appeals. 

§ 20.707 Rule 707. Prehearing 

Conference 

Currently, § 20.708 requires different 

procedures for requesting a prehearing 

conference, depending on the method of 

hearing. It is the Board’s practice not to 

require formal requests for prehearing 

conferences. VA proposes to eliminate 

regulations describing procedures that 

are confusing and burdensome for 

appellants, and instead provide a 

streamlined approach that is in line 

with current practices. Thus, VA 

proposes to redesignate § 20.708 as 

§ 20.707 and amend the section. 

§ 20.708 Rule 708. Witnesses at 

Hearings 

VA proposes to redesignate § 20.710 

as § 20.708. 

§ 2.709 Rule 709. Subpoenas 

VA proposes to redesignate § 20.711 

as § 20.709. Addresses are updated. 

§ 20.710 Rule 710. Expenses of 

Appellants, Representatives, and 

Witnesses Incident to Hearings Not 

Reimbursable by the Government 

VA proposes to redesignate § 20.712 

as § 20.710. 

§ 20.711 Rule 711. Hearings in 

Simultaneously Contested Claims 

As noted above, VA proposes to 

streamline the timelines for requesting a 

change in hearing date. For 

simultaneously contested claims, 

however, it is necessary to provide time 

limits in order to preserve the rights of 

all appellants. Therefore, VA proposes 

to redesignate § 20.713 as § 20.711 and 

amend the section by clarifying the 

procedures for hearings in 

simultaneously contested claims, in 

particular hearing date change requests. 

§ 20.712 Rule 712. Record of Hearing 

VA proposes to redesignate § 20.714 

as § 20.712 and amend the section to 

reflect current practices. Current 

§ 20.714 contains lengthy and confusing 

rules dictating when a hearing transcript 

is prepared. However, it is the Board’s 

practice to create hearing transcripts for 

all appeals, and to provide a copy of a 

transcript when requested. 

§ 20.713 Rule 713. Recording of 

Hearing by Appellant or Representative 

VA proposes to redesignate § 20.715 

as § 20.713 and amend the section to 

streamline the process for an appellant 

or representative to record a hearing 

with his or her own equipment. 

Currently, different procedures are 

applicable depending on where the 

hearing was held. 

§ 20.714 Rule 714. Correction of 

Hearing Transcripts 

VA proposes to redesignate § 20.716 

as § 20.714 and amend the section to 

remove outdated references to tape 

recordings, and streamline the process 

for requesting correction of hearing 

transcripts. Currently, different 

procedures are applicable depending on 

where the hearing was held. The 

address is also updated. 

§ 20.715 Rule 715. Loss of Hearing 

Recordings or Transcripts—Motion for 

New Hearing 

Current § 20.717 contemplates the 

loss or partial loss of a hearing recording 

or transcript, and requires that the 

appellant file a motion for a new 

hearing if desired, specifying why 

prejudice would result from the failure 

to provide a new hearing. It has been 

VA’s practice to waive this motion 

requirement in the event that the Board 

discovers a loss of recordings or 

transcripts of hearings. VA proposes to 

redesignate § 20.717 as § 20.715 and 

amend the section to reflect the current, 

more appellant-friendly practice. 

Revised § 20.715 would require the 

Board to notify the appellant and his or 

her representative when such loss has 

occurred, and provide the appellant a 

choice of appearing at a new Board 

hearing, or having the Board proceed to 

appellate review of the appeal based on 

the evidence of record. 

Subpart I—Appeals Processing 

VA proposes to add new subpart I, 

Appeals Processing. Currently, subpart I 

contains only one section, which VA 

proposes to move into subpart J. New 

subpart I would describe processing of 

appeals in the new system at the Board. 

§ 20.800 Rule 800. Order of 

Consideration of Appeals 

VA proposes to add new § 20.800, to 

describe the docketing of appeals. While 

this new section is similar to current 

§ 20.900, it follows Public Law 115–55’s 

direction in creating separate dockets, 

and docketing appeals in the order in 

which they are received on their 

respective dockets. 

Public Law 115–55 requires that VA 

create at least two new dockets—a 

docket for appeals with a request for a 

Board hearing, and a docket for appeals 

with no request for a Board hearing— 

but affords VA discretion to create 

additional dockets. VA proposes to 

establish three dockets to handle 

appeals adjudicated under the new 

system. The ‘‘direct’’ docket will be for 

Veterans who do not want a hearing and 

do not wish to submit additional 

evidence. The ‘‘evidence’’ docket will 

be for Veterans who wish to submit 

additional evidence, but do not want a 

Board hearing. Finally, the ‘‘hearing’’ 

docket will be for Veterans who wish to 

have a hearing before a Veterans Law 

Judge. Creation of these three separate 

dockets will have multiple benefits. 


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Most importantly, it provides greater 

opportunity for Veterans to tailor their 

appeals experience to best suit their 

individual needs. Additionally, the 

direct docket will capture quality 

feedback from appeals in which no 

additional evidence is added to the 

record. This will allow VA to identify 

areas in which the claims process can be 

improved. 

Public Law 115–55 requires that VA 

develop a policy allowing appellants to 

move their appeal from one docket to 

another. As noted, VA developed a 

policy allowing appellants to modify the 

information identified in the Notice of 

Disagreement. By requesting a different 

evidentiary option under the procedures 

described above, appellants are 

essentially requesting to change dockets 

as well. When a request to modify a 

Notice of Disagreement includes a 

request to change the hearing or 

evidence submission request, the Board 

will move the appeal to the appropriate 

docket, retaining the original docket 

date. 

Proposed § 20.800(e) is added to 

explain that 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 amended 38 U.S.C. 

5104C, a claimant’s options for further 

review of the agency of original 

jurisdiction’s decision include filing a 

new Notice of Disagreement. Where a 

new Notice of Disagreement is filed 

following readjudication by the agency 

of original jurisdiction, the case will be 

docketed in the order in which the most 

recent Notice of Disagreement was 

received. There is no statutory provision 

requiring that a case be returned to the 

Board following readjudication by the 

agency of original jurisdiction or that 

the Board provide expeditious treatment 

when a new appeal is filed following 

such readjudication. 

§ 20.801 Rule 801. The Decision 

Proposed § 20.801 describes general 

rules regarding Board decisions in the 

new system, similar to current § 19.7. 

Proposed § 20.801 differs from current 

§ 19.7 in that it reflects Public Law 115– 

55’s provisions regarding the 

evidentiary record, prior favorable 

findings, and notice requirements. As 

noted, Public Law 115–55 creates new 

section 7113 outlining the evidentiary 

record before the Board. Proposed 

§ 20.801(a) explains that the Board’s 

decision will be based on a de novo 

review of the evidence of record before 

the agency of original jurisdiction, as 

well as any additional evidence 

submitted pursuant to section 7113. 

Additionally, Public Law 115–55 creates 

a new requirement that VA provide a 

general statement as to whether any 

evidence was received at a time not 

permitted by section 7113. This 

statement must also inform the 

appellant that any such evidence was 

not considered by the Board, and 

explain the options available to have 

that evidence reviewed. Thus, 

§ 20.801(b)(3) reflects this notice 

requirement. Finally, Public Law 115– 

55 amends chapter 51 by adding a new 

section, 5104A, requiring that any 

finding favorable to the claimant will be 

binding on subsequent adjudicators. 

Thus, proposed § 20.801(a) reflects that 

any findings favorable to the claimant 

with regard to the issue or issues on 

appeal, as identified by the agency of 

original jurisdiction, are binding on the 

Board’s decision, unless rebutted by 

clear and convincing evidence. In 

practice, the Board would rarely disturb 

such findings prior to enactment of the 

Appeals Modernization Act. This 

regulation is largely serving to codify a 

longstanding practice of the Board not 

to disturb favorable findings or elements 

of the claim made by the agency of 

original jurisdiction. 

§ 20.802 Rule 802. Remand for 

Correction of Error 

Proposed § 20.802 describes general 

rules regarding Board remands in the 

new system, similar to current § 19.9. 

Proposed § 20.802 differs from current 

§ 19.9 in that it reflects Public Law 115– 

55’s provisions regarding the duty to 

assist. Amended section 5103A(e)(2) 

specifies that the Secretary’s duty to 

assist does not apply to review on 

appeal by the Board. Thus, under the 

amendments made by Public Law 115– 

55, the Board may no longer remand an 

appeal for the purposes of developing 

additional evidence. Rather, under 

amended 38 U.S.C. 5103A(f)(2)(A), the 

Board shall remand an appeal to correct 

an error on the part of the agency of 

original jurisdiction to satisfy its duties 

under section 5103A, if that error 

occurred prior to the agency of original 

jurisdiction decision on appeal. A 

remand is not required if the Secretary 

is able to grant the issue or issues in full. 

Thus, proposed § 20.802(a) closely 

follows the amended statutory authority 

in describing the circumstances under 

which the Board must remand an 

appeal. 

Amended 38 U.S.C. 5103A(f)(2)(B) 

further notes that the Board’s remand 

for correction of a pre-decisional duty to 

assist error may include directing the 

agency of original jurisdiction to obtain 

an advisory medical opinion under 

amended section 5109. Public Law 115– 

55 adds new paragraph (d)(1) to section 

5109, noting that the Board ‘‘shall 

remand a claim to direct the agency of 

original jurisdiction to obtain an 

advisory medical option from an 

independent medical expert under the 

section if the Board finds that the 

Veterans Benefits Administration 

should have exercised its discretion to 

obtain such an opinion.’’ Thus, 

proposed § 20.802(b) closely follows the 

amended statutory authority in 

describing the circumstances under 

which the Board must remand an appeal 

to obtain an advisory medical opinion. 

Additionally, the Board may remand 

for the correction of any other error by 

the agency of original jurisdiction in 

satisfying a regulatory or statutory duty 

where there is a reasonable possibility 

that correction of the error would aid in 

substantiating the claim, but need not 

remand solely for correction of a 

procedural defect as this would be 

inconsistent with the statutory 

framework of Public Law 115–55. 

Finally, proposed § 20.802(c) reflects 

that, under Public Law 115–55, the 

agency of original jurisdiction must 

correct any error identified by a Board 

remand, readjudicate the claim, and 

provide notice of the decision, 

including notice of the claimant’s 

options for further review. Notably, 

cases remanded by the Board will not be 

automatically returned to the Board 

after the agency of original jurisdiction 

has taken the appropriate action. 

Instead, a claimant who remains 

dissatisfied with an agency of original 

jurisdiction decision after adjudication 

and wants review by the Board must file 

a new Notice of Disagreement with the 

Board as to the issue or issues. Proposed 

§ 20.802(c) also reflects the amendment 

to 38 U.S.C. 5109B, which directs that 

the agency of original jurisdiction must 

provide for the expeditious treatment of 

any claim that is remanded by the 

Board. 

§ 20.803 Rule 803. Content of Board 

Decision, Remand, or Order in 

Simultaneously Contested Claims 

Proposed § 20.803 mirrors the 

language of current § 19.8 in describing 

the content of a Board decision, remand, 

or order in simultaneously contested 

claims. 

§ 20.804 Rule 804. Opinions of the 

General Counsel 

Proposed § 20.804 describes the 

circumstances under which the Board 

will obtain an opinion from the General 

Counsel, similar to provisions contained 

in current §§ 20.901–20.903. Proposed 

§ 20.804 differs from current § 20.901 in 

that it reflects Public Law 115–55’s 

provisions repealing the authority for 


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independent medical opinions 

contained in 38 U.S.C. 7109. As noted 

above, medical opinions will only be 

ordered by the Board when a remand is 

required to correct a pre-decisional duty 

to assist error by the agency of original 

jurisdiction. Thus, proposed § 20.804 

only contains provisions relating to 

opinions of the General Counsel. 

Subpart J—Action by the Board in 

Legacy Appeals 

VA proposes to amend subpart J to 

apply only to legacy appeals. Proposed 

§ 20.900 would explain that the subpart 

is applicable to legacy appeals. As 

noted, VA also proposes to consolidate 

provisions related to Board decisions in 

legacy appeals into subpart J. This 

reorganization will clarify the 

distinction between agency of original 

jurisdiction action on appeals, which is 

proposed to be consolidated into part 

19, and Board action on appeals, which 

is proposed to be consolidated to part 

20. Thus, VA proposes to move § 19.7, 

describing Board decisions, to § 20.903. 

VA proposes to move § 19.9, describing 

Board remands, to § 20.904. Finally, VA 

proposes to move § 19.8, describing 

Board decisions in simultaneously 

contested claims, to § 20.905. This 

reorganization will assist appellants by 

providing a clear delineation between 

Board and agency of original 

jurisdiction action, and by laying out 

relevant regulations in chronological 

order. VA also proposes to redesignate 

§ 20.800, regarding submission of 

additional evidence after the initiation 

of the appeal to § 20.901. This provision 

is only applicable to legacy appeals, as 

evidence submission for appeals in the 

new system is governed by 7113. Other 

provisions currently in subpart J would 

remain largely unchanged. 

§ 20.900 Rule 900. Applicability 

VA proposes to add new § 20.900, to 

explain that provisions of this subpart 

only apply to legacy appeals. 

§ 20.901 Submission of Additional 

Evidence After Initiation of Appeal 

VA proposes to redesignate § 20.800 

as § 20.901. 

§ 20.902 Rule 902. Order of 

Consideration of Appeals 

VA proposes to redesignate § 20.900 

as § 20.902 and update the Board’s 

address. 

§ 20.903 Rule 903. The Decision 

VA proposes to redesignate § 19.7 as 

§ 20.903. 

§ 20.904 Rule 904. Remand or Referral 

for Further Action 

VA proposes to redesignate § 19.9 as 

§ 20.904 and update citations. 

§ 20.905 Rule 905. Content of Board 

Decision, Remand, or Order in 

Simultaneously Contested Claims 

VA proposes to redesignate § 19.8 as 

§ 20.905. 

§ 20.906 Rule 906. Medical Opinions 

and Opinions of the General Counsel 

VA proposes to redesignate § 20.901 

as § 20.906 and update the current name 

of the military institution that reviews 

pathologic material. 

§ 20.907 Rule 907. Filing of Requests 

for the Procurement of Opinions 

VA proposes to redesignate § 20.902 

as § 20.907 and update citations. 

§ 20.908 Rule 908. Notification of 

Evidence To Be Considered by the 

Board and Opportunity for Response 

VA proposes to redesignate § 20.903 

as § 20.908 and update citations. 

Subpart K—Vacatur and 

Reconsideration 

§ 20.1000 Rule 1000. Vacating a 

Decision 

VA proposes to redesignate § 20.904, 

regarding vacatur of a Board decision, to 

§ 20.1000. Current § 20.904 is generally 

applicable to both legacy and new 

system appeals. Moving this provision 

into subpart K allows VA to avoid 

duplicating the provision in subpart I, 

for new system appeals. Moreover, 

vacatur and reconsideration both 

describe actions that take place after a 

Board decision has been issued. Thus, 

this move is in line with VA’s efforts to 

reorganize appeals regulations into a 

more common-sense, Veteran-centric 

order. VA proposes a minor change to 

proposed 20.1000 to reflect that 

Statements of the Case are no longer 

required in the new system. VA 

proposes to reverse paragraphs (a)(2) 

and (a)(3), and note that failure to 

provide a Statement of the Case or 

Supplemental Statement of the Case is 

considered a denial of due process only 

in legacy appeals. 

§ 20.1001 Rule 1001. When 

Reconsideration Is Accorded 

VA proposes to redesignate and 

amend § 20.1000(b), by striking the 

words ‘‘and material’’. Public Law 115– 

55 replaces the new and material 

standard with a requirement for new 

and relevant evidence. Although the 

new and material standard is still 

applicable to legacy appeals, in this 

context, VA notes that inclusion of the 

word ‘‘material’’ is redundant, as 

paragraph (b) describes discovery of 

‘‘relevant’’ service department records. 

Any relevant service department records 

would be considered ‘‘material’’ under 

the legacy standard. Thus, the proposed 

change would make the paragraph 

applicable to both systems, while 

retaining the intended result. 

§ 20.1002 Rule 1002. Filing and 

Disposition of Motion for 

Reconsideration 

VA proposed to redesignate § 20.1001 

as § 20.1002. Citations and address are 

also updated. 

§ 20.1003 Rule 1003. Hearings on 

Reconsideration 

VA proposes minor changes to 

§ 20.1003, to reflect that a hearing on 

reconsideration would only be provided 

in legacy appeals, and in new system 

appeals where the appellant had 

requested a Board hearing on the Notice 

of Disagreement. This change is 

necessary to comply with amended 

section 7107(c), which states that a 

hearing before the Board may be 

scheduled only if a hearing was 

requested on the Notice of 

Disagreement. 

§ 20.1004 Rule 1004. Reconsideration 

Panel 

VA proposes to redesignate § 19.11 as 

§ 20.1004, and make a minor change as 

required by Public Law 115–55. Public 

Law 115–55 amends 7103(b)(1) by 

striking the word ‘‘heard’’ and replacing 

it with ‘‘decided’’. Thus, VA proposes to 

make the same change to proposed 

§ 20.1004, regarding reconsideration 

panels. This change will have no 

substantive impact on legacy appeals. 

Subpart L—Finality 

No changes are proposed to 

§§ 20.1102, 20.1104, and 20.1106. 

§ 20.1103 Rule 1103. Finality of 

Determinations of the Agency of 

Original Jurisdiction Where Issue Is Not 

Appealed 

VA proposes to amend § 20.1103, 

regarding finality of agency of original 

jurisdiction decisions, in order to make 

the rule applicable to both legacy and 

new appeals. The proposed rule clarifies 

that the agency of original jurisdiction 

decision may be readjudicated if, within 

one year, the claimant files a 

supplemental claim, request for higherlevel review, or Notice of Disagreement. 

A citation is also updated. 


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§ 20.1105 Rule 1105. Supplemental 

Claim After Promulgation of Appellate 

Decision 

VA proposes to amend § 20.1105, 

regarding a new claim after 

promulgation of an appellate decision. 

In the new system, a claimant may file 

a supplemental claim with the agency of 

original jurisdiction by submitting new 

and relevant evidence related to the 

previously adjudicated issue. This 

includes issues in which the final 

appellate decision was issued in a 

legacy appeal, but the new claim was 

filed on or after the effective date. In the 

current system, new and material 

evidence is required to reopen a claim 

after an appellate decision. VA proposes 

paragraph (b) to address any legacy 

appeals pending on the effective date 

which are based upon a claim to reopen. 

The requirement that an appellant 

submit new and material evidence to 

reopen a claim only applies to legacy 

appeals that are pending on the effective 

date. A citation is also updated. 

Subpart M—Privacy Act 

No changes are proposed to § 20.1200. 

§ 20.1201 Rule 1201. Amendment of 

Appellate Decisions 

Citations are updated. 

Subpart N—Miscellaneous 

No changes are proposed to § 20.1303. 

§ 20.1301 Rule 1301. Disclosure of 

Information 

VA proposes to amend § 20.1301, 

regarding the Board’s policy to disclose 

adjudicative documents to appellants, to 

reflect the difference in procedure for 

legacy and new appeals. As noted, 

supplemental Statements of the Case are 

not required in the new system, but 

continue to be a requirement in the 

legacy system. Thus, VA proposes to 

strike references to Statements of the 

Case in paragraph (a), and add new 

paragraph (b) to note that, for legacy 

appeals, the policy described in 

paragraph (a) is also applicable to 

Statements of the Case. The address is 

also updated. 

§ 20.1302 Rule 1302. Death of 

Appellant During Pendency of Appeal 

Before the Board 

Citations and cross-references are 

updated. 

§ 20.1304 Rule 1304. Request for a 

Change in Representation 

VA proposes to redesignate § 20.1304 

as § 20.1305, and add new § 20.1304, to 

delineate the different procedures for 

appellants in the legacy and new system 

to request a change in representation, 

personal hearing, or submission of 

additional evidence. In the new system, 

hearings and evidence submission will 

only be permitted as described in 

section 7113. Requests to modify a 

Notice of Disagreement, for the purpose 

of selecting a different option for 

evidence submission or hearing request, 

is governed by § 20.202(c). Thus, 

proposed § 20.1304 describes the 

procedures for requesting a change in 

representation only. Requests for 

changes in representation are 

collections of information under the 

Paperwork Reduction Act, and are 

currently approved under OMB Control 

Number 2900–0085. VA intends to 

submit this collection of information 

under OMB Control Number 2900–0674 

in the future. 

§ 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 

VA proposes to amend § 20.1304, 

redesignated as § 20.1305, to apply only 

to legacy appeals. Thus, minor changes 

are proposed to reflect that the 

provisions of § 20.1305 are applicable 

only to legacy appeals. The address and 

citations are also updated. 

Subpart O—Revision of Decisions on 

Grounds of Clear and Unmistakable 

Error 

VA proposes minor changes to 

subpart O. Specifically, a reference to 

administrative appeals under § 19.51 is 

struck in § 20.1401(b) since Public Law 

115–55 repeals procedures for 

administrative appeals by striking 

section 7106 of title 38 of the United 

States Code. VA proposes to clarify that 

the provisions of §§ 20.1403(b)(2) and 

20.1411(b) are only applicable in the 

legacy system. Additionally, VA 

proposes to strike § 20.1405(d), as 

section 2, paragraph (v) of Public Law 

115–55 repealed the authority for that 

provision. Addresses and citations are 

also updated. No changes are proposed 

to §§ 20.1400, 20.1402, 20.1406, 

20.1407, and 20.1410. 

Subpart P—Expedited Claims 

Adjudication Initiative—Pilot Program 

VA proposes to remove and reserve 

subpart P, which addresses the 

Expedited Claims Adjudication (ECA) 

Initiative Pilot Program as this program 

is no longer in use and will not continue 

based on changes to the claims and 

appeals processes under Public Law 

115–55. VA launched the ECA Initiative 

Program on February 2, 2009. The twoyear pilot program was designed to 

accelerate claims and appeals 

processing. Participation in the ECA 

Initiative was strictly voluntary and 

limited to claimants who resided within 

the jurisdiction of the Nashville, 

Lincoln, Seattle, or Philadelphia 

Regional Offices (ROs). VA concluded 

the ECA pilot program in 2013. As the 

program is no longer operational, VA 

proposes to remove subpart P. 

Appendix A to Part 20—CrossReferences 

VA proposes to remove Appendix A 

to part 20, as it has outlived its 

usefulness. Cross-references currently 

located in the table are outdated or 

incorrect. Whereas a user may have 

previously used the appendix to search 

for other sections pertinent to a 

particular regulation, such research may 

be accomplished much more efficiently 

via a search of the electronic document. 

Part 21—Vocational Rehabilitation and 

Education 

Subpart A—Vocational Rehabilitation 

and Employment Under 38 U.S.C. 

Chapter 31 

VA proposes to amend part 21 to align 

current regulations with new review 

and appeals processes outlined in 

Public Law 115–55. To accomplish this 

goal, VA proposes to update Subpart A 

by deleting 38 CFR 21.59 and 21.98; 

adding one new section, 38 CFR 21.416; 

amending 38 CFR 21.414 and 21.420; 

and updating cross references in several 

additional regulations (in subparts A 

and I). 

VA’s Vocational Rehabilitation and 

Employment (VR&E) program, under the 

authority of title 38 of the United States 

Code (U.S.C.) Chapter 31, serves an 

important function: To assist 

Servicemembers and Veterans who have 

service connected disabilities and 

barriers to employment in obtaining and 

maintaining suitable employment and 

achieving maximum independence in 

daily living. There are several points in 

this process where program participants 

may disagree with a decision made by 

VR&E field staff regarding benefits and/ 

or services. Although VR&E’s current 

practices with regard to reviews and 

appeals are well established in policy 

and procedural guidance, current 

regulations on the review and appeal 

processes focus only on three very 

specific points in the rehabilitation 

process (eligibility; entitlement; and the 

development of, or change in, the 

rehabilitation plan). Therefore, VA 

proposes to remove those current 

regulations, 38 CFR 21.59 and 21.98, 

and add proposed § 21.416, one new 

comprehensive regulation that is 


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inclusive of reviews and appeals that 

may occur throughout the entire 

rehabilitation process and accords with 

the new review options provided in 

Public Law 115–55. 

Proposed § 21.416 will outline who 

can perform a higher-level review; 

provide a process that allows for the 

submission of new and relevant 

evidence; discuss duty to assist errors; 

outline an informal conference 

procedure for the higher-level review 

process; provide information on how to 

proceed on issues surrounding a 

difference of opinion; and establish a 

review time period. The review time 

period is an administrative goal, but 

does not create an enforceable right. 

VA also proposes to amend 38 CFR 

21.414 and 21.420 to include the new 

review options and the new 

requirements for notification letters 

under Public Law 115–55. 

Subpart B—Claims and Applications for 

Educational Assistance 

In addition to the proposed 

amendments to subpart A, VA proposes 

to amend subpart B regulations that 

govern VA’s educational assistance 

benefits. VA’s Education Service 

handles oversight of VA’s education 

programs, which provide veterans, 

servicemembers, reservists, and certain 

family members of veterans with 

educational opportunities postseparation. To align current educational 

assistance regulations with the new 

review and appeals processes outlined 

in Public Law 115–55, VA proposes to 

revise § 21.1034. VA also proposes to 

remove the cross reference in one 

additional regulation and add § 21.1035 

to address reviews in the legacy appeals 

process. 

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 

proposed rule includes provisions 

constituting 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. Proposed 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. 

Comments on the collections of 

information contained in this proposed 

rule should be submitted to the Office 

of Management and Budget, Attention: 

Desk Officer for the Department of 

Veterans Affairs, Office of Information 

and Regulatory Affairs, Washington, DC 

20503 or emailed to OIRA_Submission@

omb.eop.gov, with copies sent by mail 

or hand delivery to the Director, 

Regulation Policy and Management 

(00REG), Department of Veterans 

Affairs, 810 Vermont Avenue NW, 

Room 1063B, Washington, DC 20420; 

fax to (202) 273–9026; or submitted 

through www.Regulations.gov. 

Comments should indicate that they are 

submitted in response to ‘‘RIN 2900– 

AQ26.’’ 

OMB is required to make a decision 

concerning the collections of 

information contained in this proposed 

rule between 30 and 60 days after 

publication of this document in the 

Federal Register. Therefore, a comment 

to OMB is best assured of having its full 

effect if OMB receives it within 30 days 

of publication. This does not affect the 

deadline for the public to comment on 

the proposed rule. 

VA considers comments by the public 

on proposed collections of information 

in— 

• Evaluating whether the proposed 

collections of information are necessary 

for the proper performance of the 

functions of the Department, including 

whether the information will have 

practical utility; 

• Evaluating the accuracy of the 

Department’s estimate of the burden of 

the proposed collections of information, 

including the validity of the 

methodology and assumptions used; 

• Enhancing the quality, usefulness, 

and clarity of the information to be 

collected; and 

• Minimizing the burden of the 

collections of information on those who 

are to respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology, 

e.g., permitting electronic submission of 

responses. 

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 new or proposed 

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: Veteran’s Supplemental Claim 

Application (VA Form 20–0995). 

OMB Control No.: 2900–XXXX 

(NEW). 

CFR Provisions: 38 CFR 3.160(c), 

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 proposed 

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 know 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 


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proposed 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 

compensation benefits. Description of 

need for information and proposed use 

of information: The collection of 

information is necessary to determine 

the issue(s) that a claimant is 

dissatisfied with and seeks to initiate a 

supplemental claim for VA disability 

compensation benefits. VA will use this 

information to initiate or determine the 

veteran’s eligibility to apply for a 

supplemental claim in accordance with 

Public Law 115–55. 

Description of likely respondents: 

Veterans or claimants who indicate 

dissatisfaction with a decision issued by 

a local VA office and would like review 

of new and relevant evidence in support 

of his or her claim for disability 

compensation 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 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: Application for 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 proposed 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) that a claimant is 

dissatisfied with and seeks higher-level 

review of by VA. VA will use this 

information to initiate a higher-level 

review by an agency adjudicator in 

accordance with Public Law 115–55. 

Description of likely respondents: 

Veterans or claimants who indicate 

dissatisfaction with a decision issued by 

a local VA office. 

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 

overhead costs for completing the 

information collection. 

Title: Notice of Disagreement (VA 

Form 10182). 

OMB Control No.: 2900–0674. 

CFR Provisions: 38 CFR 20.202. 

Summary of collection of information: 

Proposed 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 the 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)(2). Additionally, in order to 

permit appellants and their 

representatives to exercise their appealrelated rights, the information collected 

will include withdrawals of services by 

representatives (proposed 38 CFR 20.6), 

requests by appellants for changes in 

hearing dates or methods (proposed 38 

CFR 20.703), and motions for 

reconsideration of Board decisions 

(proposed 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 claimants who indicate 

dissatisfaction with a decision issued by 

a local VA office, 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 

representative. 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 


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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). 

Regulatory Flexibility Act 

The Secretary hereby certifies that 

these regulatory amendments would not 

have a significant economic impact on 

a substantial number of small entities as 

they are defined in the Regulatory 

Flexibility Act, 5 U.S.C. 601–612. These 

amendments would not directly affect 

any small entities. Only VA 

beneficiaries and their survivors could 

be directly affected. Therefore, pursuant 

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

are exempt from the initial and final 

regulatory flexibility analysis 

requirements of sections 603 and 604. 

Executive 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 proposed rule have 

been examined, and it has been 

determined that this is an economically 

significant regulatory action under 

Executive Order 12866. This proposed 

rule is expected to be an E.O. 13771 

deregulatory action. Details on the 

estimated cost savings of this proposed 

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. 

Unfunded Mandates 

The Unfunded Mandates Reform Act 

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

agencies prepare an assessment of 

anticipated costs and benefits before 

issuing any rule that may result in an 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector of $100 million or more 

(adjusted annually for inflation) in any 

given year. This rule would have no 

such effect on State, local, and tribal 

governments, or on the private sector. 

Catalog of Federal Domestic Assistance 

Numbers and Titles 

The Catalog of Federal Domestic 

Assistance program numbers and titles 

for this 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 

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, Vietnam. 

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 programsveterans, Manpower training programs, 

Reporting and recordkeeping 

requirements, Schools, Travel and 

transportation expenses, Veterans, 

Vocational education, Vocational 

rehabilitation. 

Signing Authority 

The Secretary of Veterans Affairs, or 

designee, approved this document and 

authorized the undersigned to sign and 

submit the document to the Office of the 

Federal Register for publication 

electronically as an official document of 

the Department of Veterans Affairs. 

Peter M. O’Rourke, Chief of Staff, 

Department of Veterans Affairs, 

approved this document on April 24, 

2018, for publication. 


daltland on DSKBBV9HB2PROD with PROPOSALS2
39842 Federal Register / Vol. 83, No. 155 / Friday, August 10, 2018 / Proposed Rules 

Dated: July 18, 2018. 

Jeffrey M. Martin, 

Impact Analyst, Office of Regulation Policy 

& Management, Office of the Secretary, 

Department of Veterans Affairs. 

For the reasons set forth in the 

preamble, VA proposes to amend 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 

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)). 

(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. Initial 

claims include: 

(i) An original claim for one or more 

benefits, which is the first complete 

claim received by VA (see original 

claim, § 3.160(b)). 

(ii) A new claim requesting service 

connection for a disability or grant of a 

new benefit, and 

(iii) A claim for increase in a 

disability evaluation rating or rate of a 

benefit paid. 

(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 claim for the same or similar 

benefit on the same or similar basis was 

previously decided. (See supplemental 

claim; § 3.2501). 

* * * * * 

■ 3. 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 when 

applicable, 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 

(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 submitted 

by a claimant 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 under the following 

circumstances: 

(i) The agency of original jurisdiction 

subsequently receives a complete 

application for a supplemental claim or 

claim for increase; or 

(ii) A claim is pending readjudication 

after identification of a duty to assist 

error 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 while the record was closed 

will become part of the record to be 

considered upon readjudication. 

(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 higher 

level 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 


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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. 

* * * * * 

■ 4. 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 VA and Board of Veterans’ 

Appeals adjudicators, unless rebutted 

by clear and convincing evidence to the 

contrary. 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. 

■ 5. 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 

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 an adjudicative 

agency, with respect to the evidentiary 

record and law existing at the time of 

the decision, unless the outcome 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] 

■ 6. Amend § 3.110(b) by removing 

‘‘§§ 20.302 and 20.305’’ from the last 

sentence and adding in its place 

‘‘§§ 19.52, 20.203, and 20.110’’. 

■ 7. Amend § 3.151 as follows: 

■ a. Revise paragraph (a); and 

■ b. Add paragraphs (c) and (d); 

The revisions and additions 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 


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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). 

* * * * * 

■ 8. 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. For 

supplemental claims, if VA received a 

complete claim within 1 year of the 

filing of an incomplete claim, as 

provided in paragraph (c) of this 

section, it will be considered filed as of 

the date of receipt of the incomplete 

claim. 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. 

■ 9. Amend § 3.156 as follows: 

■ a. Revise the section heading; 

■ b. Add introductory text; 

■ c. Revise paragraph (a); 

■ d. In the authority immediately 

following paragraph (a), remove 

‘‘5103A(f)’’ and add in its place 

‘‘5103A(h)’’; 

■ e. Revise the heading of paragraph (b); 

■ f. Add new paragraph (d); 

The revisions and additions read as 

follows: 

§ 3.156 New evidence. 

New evidence means evidence not 

previously submitted to agency 

adjudicators. 

(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. 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 

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. 

* * * * * 

■ 10. Amend § 3.158 by revising the first 

sentence of paragraph (a) to read as 

follows: 

§ 3.158 Abandoned claims. 

(a) General. 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. 

* * * * * 

■ 11. Amend § 3.159 as follows: 

■ a. Revise paragraph (a)(3); 

■ b. Revise the first sentence of 

paragraph (b)(1); 

■ c. Revise paragraph (b)(3); 

■ d. Revise paragraph (c) introductory 

text; 

■ e. Revise paragraph (c)(4)(iii); 

■ f. Add paragraph (c)(4)(iv); and 

■ g. Remove the text ‘‘for a claim’’ and 

adding in its place the text ‘‘for an 

initial or supplemental claim’’ in 

paragraph (d) introductory text. 

The revisions 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; 


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(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; 

(viii) For higher-level reviews, 

identification of the date of the decision 

for which review is sought. 

* * * * * 

(b) VA’s duty to notify claimants of 

necessary information or evidence. (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’’). 

* * * * * 

(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. 

(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 

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, paragraph (c)(4) of this 

section applies only if new and material 

evidence is presented or secured as 

prescribed in § 3.156. 

(iv) Paragraph (c)(4) of this section 

applies to a supplemental claim only if 

new and relevant evidence under 

§ 3.2501 is presented or secured. 

* * * * * 

■ 12. Amend § 3.160 as follows: 

■ a. Revise paragraphs (a), (d), and (e); 

■ b. Remove paragraph (f); and 

■ c. Revise the authority citation for 

paragraph (e).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) 

* * * * * 

■ 13. Remove and reserve § 3.161. 

§ 3.161 [Removed and Reserved]. 

■ 14. Amend § 3.328 as follows: 

■ a. In paragraph (b), remove the text ‘‘at 

the regional office level’’ and add in its 

place ‘‘before VA’’; 

■ b. Revise 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 the Service or his 

or her designee determines that the 

issue under consideration poses a 

medical problem of such obscurity or 

complexity, or has generated such 

controversy in the medical community 

at large, as to justify solicitation of an 

independent medical opinion; or 

(ii) The independent medical opinion 

is required to fulfill the instructions 


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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)) 

* * * * * 

■ 15. Amend 3.400 as follows: 

■ a. Revise the introductory text; 

■ b. Revise paragraphs (h)(1) through 

(h)(3); 

■ c. Revise paragraph (z)(2); and 

■ d. Add paragraph (z)(3). 

The revisions 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) * * * 

(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. 

■ 16. In subpart A, remove the word 

‘‘reopened’’ and add, in its place, the 

word ‘‘supplemental’’ in the following 

places: 

■ a. § 3.31 

■ b. § 3.114 

■ c. § 3.321 

■ d. § 3.326 

■ e. § 3.372 

■ f. § 3.401 

■ g. § 3.402 

■ h. § 3.404 

■ i. § 3.655 

■ j. § 3.812 

§ 3.814 [Amended] 

■ 17. Amend § 3.814 by removing the 

words ‘‘original claim, a claim reopened 

after final disallowance, or a claim for 

increase’’ and add, in its place, the 

words ‘‘initial claim or supplemental 

claim’’ from paragraph (e) introductory 

text. 

§ 3.815 [Amended] 

■ 18. Amend § 3.815 by removing the 

words ‘‘original claim, a claim reopened 

after final disallowance, or a claim for 

increase,’’ and add, in its place, the 

words ‘‘initial claim or supplemental 

claim’’ from paragraph (i) introductory 

text. 

Subpart D—Universal Adjudication 

Rules That Apply to Benefit Claims 

Governed by Part 3 of This Title 

■ 19. The authority citation for part 3, 

subpart D continues to read as follows: 

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

otherwise noted. 

■ 20. Amend subpart D by adding 

§ 3.2400 to read as follows: 

§ 3.2400 Applicability of modernized 

review system. 

(a) 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 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 19 

and 20 applicable to legacy claims and 

appeals no longer apply to that claim. 

■ 21. Amend subpart D by adding 

§ 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 


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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, 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 

a supplemental claim, the claimant may 

file another 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. 

(4) Following entry of judgment 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 may change the 

review option selected by withdrawing 

the request 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. 

(e) 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 . 

(f) 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). 

(g) 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. 

(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 date 

entitlement arose, but will not be earlier 

than the date of receipt of the 

supplemental claim. 

■ 22. Amend subpart D by adding 

§ 3.2501 to read as follows: 

§ 3.2501 Supplemental claims. 

Except as otherwise provided, a 

claimant or his or her legal 

representative, if any, may file a 

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

submitting a complete application (see 

§ 3.160(a)) in writing 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 or has 

become finally adjudicated. 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. 

(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 submitted to 

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) 

■ 23. Amend subpart D by adding 

§ 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 

adjudication activity will take 

immediate action to expedite 

readjudication of the claim in 

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

adjudication activity retains jurisdiction 

of the claim. In readjudicating the claim, 

the adjudication activity 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). 

■ 24. Amend § 3.2600 as follows: 

■ a. Revise the section heading; 

■ b. Add introductory text; 

■ c. Remove 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 

on or after June 1, 2001, under 

regulations applicable at the time of 

filing. 

* * * * * 

■ 25. Amend subpart D by adding 

§ 3.2601 to read as follows: 


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§ 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. 

(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). 

(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 to the 

adjudication activity for correction of 

the error and readjudication. Upon 

receipt, the adjudication activity will 

take immediate action to expedite 

readjudication of 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 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 

■ 26. The authority citation for part 8 

continues to read as follows: 

Authority: 38 U.S.C. 501, 1901–1929, 

1981–1988, unless otherwise noted. 

■ 27. Amend § 8.30 by: 

■ a. Revising the section heading; 

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

■ c. Adding paragraphs (d) through (h). 

The revisions read as follows: 

§ 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 


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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 VA and Board 

of Veterans’ Appeals adjudicators, 

unless rebutted by clear and convincing 

evidence to the contrary. 

(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 

decision-maker who did not participate 

in the prior decision. Selection of an 

employee to conduct a higher-level 

review is at VA’s discretion. 

(3) Board of Veterans’ Appeals 

Review. See 38 CFR part 20. 

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

(d) of this title 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 title, 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 

■ 28. 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. 

■ 29. Amend § 14.629 by: 

■ a. Removing the introductory text. 

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

words ‘‘General Counsel or his or her 

designee’’ and adding, in their place, the 

words ‘‘Chief Counsel with subjectmatter jurisdiction’’. 

■ c. Adding new paragraph (d) to read 

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 

paragraphs (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. 

■ 30. In § 14.631(c) revise the second 

sentence to read as followings: 

§ 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] 

■ 31. In § 14.632(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’’. 

■ 32. Amend § 14.633 by: 

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

words ‘‘before the Office of the General 

Counsel’’ after the words ‘‘close the 

record’’. 

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

words ‘‘before the Office of the General 

Counsel’’ after the words ‘‘close the 

record’’. 

■ c. Revising paragraph (h). 

■ d. In paragraph (i), adding the words 

‘‘suspended or’’ before the word 

‘‘cancelled’’. 

■ e. Adding new 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 


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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. 

* * * * * 

■ 33. Amend § 14.636 by: 

■ a. Revising paragraph (c). 

■ b. In paragraph (h)(3), removing all 

references to ‘‘reopened’’ and adding, in 

each place, the word ‘‘readjudicated’’. 

■ c. Revising paragraph (i)(3). 

■ d. Revising paragraph (k). 

The revisions 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, including any claim for an 

increase in rate of a benefit, 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), a decision by an agency of 

original jurisdiction 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 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 

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 the agency of 

original jurisdiction issued notice of its 

decision on such request 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: 

(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 paragraphs (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. 

* * * * * 

(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 


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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 

attorney or agent 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), 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), shall be initiated and 

processed using the procedures in 38 

CFR part 20 applicable to appeals under 

the modernized system. 

* * * * * 

■ 34. Amend § 14.637 by: 

■ a. Revising paragraph (d)(3). 

■ b. Revising paragraph (f). 

The revisions 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 

attorney or agent 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), 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), 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 

■ 35. The authority citation for part 19, 

subpart A continues to read as follows: 

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

otherwise noted. 

■ 36. The heading for part 19 is revised 

as set forth above. 

Subpart A—Applicability 

■ 37. The heading for subpart A is 

revised as set forth above. 

§ 19.1 [Redesignated as § 20.100 and 

Amended] 

■ 38. Redesignate § 19.1 as § 20.100 and 

revise the heading to read ‘‘Rule 100. 

Establishment of the Board.’’ in the 

newly redesignated § 20.100. 

§ 19.2 [Redesignated as § 20.101 and 

Amended] 

■ 39. Redesignate § 19.2 as § 20.101; 

revise the heading to read ‘‘Rule 101. 

Composition of the Board; Titles.’’; in 

paragraph (b), remove the word 

‘‘member’’ and add in its place the word 

‘‘Member’’ in the newly redesignated 

§ 20.101. 

§ 19.3 [Redesignated as § 20.106 and 

Amended] 

■ 40. Redesignate § 19.3 as § 20.106 and 

revise the heading to read ‘‘Rule 106. 

Assignment of proceedings.’’ in the 

newly redesignated § 20.106. 

§ 19.4 [Redesignated as § 20.103 and 

Amended] 

■ 41. Redesignate § 19.4 as § 20.103 and 

revise the heading to read ‘‘Rule 103. 

Principal functions of the Board.’’ in the 

newly redesignated § 20.103. 

§ 19.5 [Redesignated as § 20.105 and 

Amended] 

■ 42. Redesignate § 19.5 as § 20.105; 

revise the heading to read ‘‘Rule 105. 

Criteria governing disposition of 

appeals.’’; in the first sentence, add the 

text ‘‘and in its decisions’’ before the 

first comma in the newly redesignated 

§ 20.105. 

§ 19.7 [Redesignated as § 20.903 and 

Amended] 

■ 43. Redesignate § 19.7 as § 20.903, and 

amend by: 

■ a. Revising the heading to read ‘‘Rule 

903. The decision.’’. 

■ b. In the second sentence of paragraph 

(b), removing the words ‘‘separately 

stated’’. 

■ c. Removing the authority citation at 

the end of paragraph (b); 

■ d. Adding an authority citation at the 

end of the section to read as follows: 


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(Authority: 38 U.S.C. 7104(d) (2016) in the 

newly redesignated § 20.903) 

§ 19.8 [Redesignated as § 20.905 and 

Amended] 

■ 44. Redesignate § 19.8 as § 20.905 and 

revise the heading to read ‘‘Rule 905. 

Content of Board decision, remand, or 

order in simultaneously contested 

claims.’’ in the newly redesignated 

§ 20.905. 

§ 19.9 [Redesignated as § 20.904 and 

Amended] 

■ 45. Redesignate § 19.9 as § 20.904 and 

amend by: 

■ a. Revising the heading to read ‘‘Rule 

904. Remand or referral for further 

action.’’; 

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

‘‘subpart B of this part’’ and adding in 

its place the text ‘‘part 19, subpart B of 

this chapter’’; 

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

‘‘§ 20.204’’ and adding in its place the 

text ‘‘§ 19.55’’; 

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

text ‘‘§ 20.1304(c) of this chapter’’ and 

adding in its place the text ‘‘Rule 1305 

(§ 20.1305(c) of this part)’’; and 

■ e. In paragraph (d)(4), removing the 

text ‘‘§ 20.901 of this chapter’’ and 

adding in its place the text ‘‘Rule 906 

(§ 20.906 of this part)’’; and 

■ f. Revising the authority citation to 

read as follows: 

§ 20.904 Remand or referral for further 

action. 

* * * * * 

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

7104(a), 7105 (2016) in the newly 

redesignated § 20.904) 

§ 19.11 [Redesignated as § 20.1004 and 

Amended] 

■ 46. Redesignate § 19.11 as § 20.1004 

and amend by: 

■ a. Revising the heading to read ‘‘Rule 

1004. Reconsideration panel.’’. 

■ b. Removing the word ‘‘heard’’ in 

paragraph (b) and adding in its place the 

word ‘‘decided’’ both places it appears 

in the newly redesignated § 20.1004. 

§ 19.12 [Redesignated as § 20.107 and 

Amended] 

■ 47. Redesignate § 19.12 as § 20.107 

and amend by: 

■ a. Revising the heading to read ‘‘Rule 

107. Disqualification of Members.’’. 

■ b. Removing paragraph (b) and the 

authority citation following paragraph 

(b); 

■ c. Redesignating paragraph (c) as 

paragraph (b); and 

■ d. In new paragraph (b), removing the 

text ‘‘paragraphs (a) and (b)’’ and adding 

in its place the text ‘‘paragraph (a)’’ in 

the newly redesignated § 20.107. 

§ 19.13 [Redesignated as § 20.108 and 

Amended] 

■ 48. Redesignate § 19.13 as § 20.108 

and revise to heading to read ‘‘Rule 108. 

Delegation of authority to Chairman and 

Vice Chairman, Board of Veterans’ 

Appeals.’’ in the newly redesignated 

§ 20.108. 

§ 19.14 [Redesignated as § 20.109 and 

Amended] 

■ 48a. Redesignate § 19.14 as § 20.109 

and revise the newly redesignated 

§ 20.109 to read as follows: 

§ 20.109 Rule 109. Delegation of authority 

to Vice Chairman, Deputy Vice Chairmen, or 

Members of the Board. 

(a) The authority exercised by the 

Chairman of the Board of Veterans’ 

Appeals described in Rules 106(b) and 

107(b) (§§ 20.106(b) and 20.107(b)) may 

also be exercised by the Vice Chairman 

of the Board. 

(b) The authority exercised by the 

Chairman of the Board of Veterans’ 

Appeals described in Rules 1004 and 

1002(c) (§§ 20.1004 and 20.1002(c)) may 

also be exercised by the Vice Chairman 

of the Board and by Deputy Vice 

Chairmen of the Board. 

(c) The authority exercised by the 

Chairman of the Board of Veterans’ 

Appeals described in Rule 2 (§ 20.2), 

may also be exercised by the Vice 

Chairman of the Board; by Deputy Vice 

Chairmen of the Board; and, in 

connection with a proceeding or motion 

assigned to them by the Chairman, by a 

Member or Members of the Board. 

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

■ 49. Add § 19.1 to subpart A 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. 

■ 50. Add § 19.2 to subpart A to read as 

follows: 

§ 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 14, 2019, or the date that is 

published in the Federal Register 

pursuant to Public Law 115–55, section 

2, paragraph (x)(6), whichever is later. 

(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 

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) 

§ § 19.3–19.19 [Reserved] 

■ 51. Reserve §§ 19.3 through 19.19 to 

subpart A. 

Subpart B—Legacy Appeals and 

Legacy Appeals Processing by Agency 

of Original Jurisdiction 

■ 52. Revise the subpart B heading as set 

forth above. 


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§ 19.23 [Amended] 

■ 53. Amend § 19.23 by: 

■ 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. 

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

text ‘‘, § 19.27’’. 

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

text ‘‘, § 19.27’’. 

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

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

adding in their place the text 

‘‘§ 19.21(b)’’. 

§ 19.24 [Amended] 

■ 54. 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), by removing the 

text ‘‘§ 20.302(a) of this chapter’’ and 

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

■ 55. Amend § 19.25 by revising the 

authority citation to read as follows: 

§ 19.25 Notification by agency of original 

jurisdiction of right to appeal. 

* * * * * 

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

■ 56. Amend § 19.26 by revising the 

authority citation 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] 

■ 57. Remove and reserve § 19.27. 

■ 58. Amend § 19.28 by revising the 

authority citation 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)) 

■ 59. Amend § 19.29 by revising the 

authority citation to read as follows: 

§ 19.29 Statement of the Case. 

* * * * * 

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

■ 60. Amend § 19.30 by revising 

paragraph (b) and the authority citation 

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)) 

■ 61. Amend § 19.31 by: 

■ a. Adding after the first sentence the 

text ‘‘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.’’. 

■ b. Revising the authority citation to 

read as follows: 

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

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

■ 62. Amend § 19.32 by revising the 

authority citation 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] 

■ 63. Remove and reserve § 19.33. 

■ 64. Amend § 19.34 by revising the 

authority citation 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)) 

§ 19.35 [Amended] 

■ 65. Amend § 19.35 by: 

■ a. Removing the second sentence; 

■ b. Revising the authority citation to 

read as follows: 

§ 19.35 Certification of appeals. 

* * * * * 

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

§ 19.36 [Amended] 

■ 66. 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’’; 

■ b. Revising the authority citation to 

read 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)) 

■ 67. Amend § 19.37 by revising the 

authority citation to read as follows: 

§ 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)) 

■ 68. 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)’’ 

■ b. Revising the authority citation to 

read 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 

■ 69. Revise the subpart C heading as set 

forth above. 

§§ 19.50–19.53 [Removed] 

■ 70. Remove §§ 19.50 through 19.53. 

Subpart D [Removed and Reserved] 

■ 71. Remove and reserve Subpart D, 

consisting of §§ 19.75 through 19.99. 

Subpart E—Simultaneously Contested 

Claims 

■ 72. Amend § 19.100 by revising the 

authority citation to read as follows: 

§ 19.100 Notification of right to appeal in 

simultaneously contested claims. 

* * * * * 

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

■ 73. Amend § 19.101 by revising the 

authority citation 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)) 

■ 74. Amend § 19.102 by revising the 

authority citation 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)) 


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§§ 19.103–19.199 [Added and Reserved] 

■ 75. Add and reserve §§ 19.103 through 

19.199. 

■ 76. Remove Appendix A to Part 19— 

Cross-References. 

PART 20—BOARD OF VETERANS’ 

APPEALS: RULES OF PRACTICE 

■ 77. The authority citation for part 20 

continues to read as follows: 

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

in specific sections. 

Subpart A—General 

§ 20.1 [Amended] 

■ 78. Amend § 20.1 by adding the text 

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

Veterans’ Appeals’’. 

■ 79. Amend § 20.3 by: 

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

■ b. Removing paragraph (h); 

■ c. Redesignating paragraph (i) as 

paragraph (h) and revising the 

introductory text to read: ‘‘Hearing on 

appeal or Board hearing’’, 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 to read: ‘‘For example, a 

request to correct a hearing transcript 

(see Rule 714 (§ 20.714)) is raised by 

motion.’’; 

■ 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. 

* * * * * 

■ 80. Add new § 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 

§ 20.102 [Removed] 

■ 81. Remove § 20.102. 

■ 82. Redesignate § 20.100 as § 20.102, 

and revise paragraph (c) in the newly 

redesignated § 20.102 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. 

■ 83. Redesignate § 20.101 as § 20.104, 

and amend by: 

■ a. Removing the third sentence of 

paragraph (a); 

■ b. Redesignating paragraph (c) as 

paragraph (d)(1), revising the paragraph 

heading and the first sentence, and add 

an authority citation in the newly 

designated paragraph (d)(1); 

■ c. Redesignating paragraph (d) as 

paragraph (c) and revising the first 

sentence of the newly redesignated 

paragraph (c); 

■ d. Redesignating paragraph (e) as 

paragraph (d)(2) and revising the newly 

redesignated paragraph (d)(2). 

The revisions read as follows: 

§ 20.104 Rule 104. Jurisdiction of the 

Board. 

* * * * * 

(c) * * * 

The Board shall decide all questions 

pertaining to its jurisdictional authority 

to review a particular case. 

* * * * * 

(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. 

* * * * * 

(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) 

Subpart C—Commencement and Filing 

of Appeals 

■ 84. Revise the subpart heading as set 

forth above. 

■ 85. Redesignate § 20.200 as § 19.20 

and amend by: 

■ a. Revising the section heading. 

■ b. In the introductory text removing 

the text ‘‘§ 20.201’’ and adding in its 

place the text ‘‘§ 19.21’’, removing the 

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

place the text ‘‘§ 19. 52(a)’’ and adding 

the text ‘‘of this chapter’’ after the text 

‘‘of § 20.501(a)’’. 


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■ c. Revising the authority citation; 

The revisions read as follows: 

§ 19.20 What constitutes an appeal. 

* * * * * 

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

■ 86. Redesignate § 20.201 as § 19.21 

and amend by: 

■ a. Revising the section heading; 

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

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

place the text ‘‘§ 19.52(a)’’; 

■ c. In paragraph (c), 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)’’; 

■ d. Revising the authority citation; 

The revisions to read as follows: 

§ 19.21 Notice of Disagreement. 

* * * * * 

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

■ 87. Redesignate § 20.202 as § 19.22 

and amend by revising the section 

heading and authority citation to read as 

follows: 

§ 19.22 Substantive Appeal. 

* * * * * 

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

■ 88. Redesignate § 20.204 as § 19.55 

and amend by: 

■ a. Revising the section heading; 

■ b. In paragraph (b)(1), revising the 

introductory text to read ‘‘Content’’, 

removing the first sentence, removing 

the word ‘‘They’’ from the second 

sentence and adding in its place the 

words ‘‘Appeal withdrawals’’; 

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

sentence; 

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

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

word ‘‘chapter’’; and 

■ e. Revising the authority citation to 

read as follows: 

■ f. Removing ‘‘[68 FR 13236, Mar. 19, 

2003, as amended at 81 FR 32649, May 

24, 2016]’’ from the end of the 

paragraph. 

The revisions read as follows: 

§ 19.55 Withdrawal of Appeal. 

* * * * * 

(b) * * * 

(1) Content. 

* * * * * 

(2) * * * 

* * * * * 

Thereafter, file the withdrawal at the 

Board. 

* * * * * 

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

■ 89. Revise subpart C to read as 

follows: 

§ 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 determination or 

determinations with which the claimant 

disagrees. 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 determination with 

which the claimant disagrees. 

(b) 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 in writing, 

must clearly identify the option listed in 

paragraph (b) of this section that the 

appellant requests, 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 30 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) 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). 


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(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 2900–0085] 

§ 20.203 Rule 203. Place and time of filing 

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 determination by the agency of 

original jurisdiction within one year 

from the date that the agency mails the 

notice of the determination. The date of 

mailing the letter of notification of the 

determination will be presumed to be 

the same as the date of that letter for 

purposes of determining whether an 

appeal has been timely filed. 

(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 

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 

■ 90. Revise the subpart D heading to 

read as set forth above. 

■ 91. Redesignate § 20.300 as § 19.51, 

and amend by: 

■ a. Revising the section heading. 

■ b. Revising the authority citation of 

the newly redesignated § 19.51 to read 

as follows: 

§ 19.51 Place of filing Notice of 

Disagreement and Substantive Appeal. 

* * * * * 

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

(2016)) 

■ 92. Redesignate § 20.301 as § 19.50, 

and amend by: 

■ a. Revising the section heading. 

■ b. Revising the authority citation of 

the newly redesignated § 19.50 to read 

as follows: 

§ 19.50 Who can file an appeal. 

* * * * * 

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

■ 93. Redesignate § 20.302 as § 19.52, 

and amend by: 

■ a. Revising the section heading. 

■ b. Revising the authority citations of 

paragraphs (a)–(c) in the newly 

redesignated § 19.52 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)) 

■ 94. Redesignate § 20.303 as § 19.53, 

and amend by: 

■ a. Revising the section heading. 

■ b. Revising the authority citation of 

the newly redesignated § 19.53 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)) 

■ 95. Redesignate § 20.304 as § 19.54 

and amend by: 

■ a. Revising the section heading. 

■ b. In the introductory text removing 

the text ‘‘Rule 302(b) (§ 20.302(b) of this 

part)’’ and adding in its place the text 

‘‘§ 19.52(b)’’. 

■ c. Revising the authority citation of 

the newly redesignated § 19.54 to read 

as follows: 

§ 19.54 Filing additional evidence does not 

extend time limit for appeal. 

* * * * * 

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

■ 96. Redesignate § 20.305 as § 20.110, 

and revise the section heading by 

removing the words ‘‘Rule 305’’ and 

adding in their place the words ‘‘Rule 

110’’ in the newly redesignated 

§ 20.110. 


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■ 97. Redesignate § 20.306 as § 20.111 

and amend by: 

■ a. In the section heading removing the 

words ‘‘Rule 306’’ and adding in their 

place the words ‘‘Rule 111’’. 

■ b. In the introductory text removing 

the words ‘‘Rule 305 (§ 20.305)’’ and 

adding in their place the words ‘‘Rule 

110 (§ 20.110)’’ in the newly 

redesignated § 20.111. 

■ 98. Add §§ 20.300–20.303 to read as 

follows: 

§ 20.300 Rule 300. 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 or testimony 

submitted pursuant to this subpart, as 

provided in § 20.801. 

(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)) 

§ § 20.304–20.306 [Added and Reserved] 

■ 99. Add and reserve §§ 20.304 through 

20.306. 

Subpart E—Appeal in Simultaneously 

Contested Claims 

■ 100. Revise the subpart E heading to 

read as set forth above. 

§ § 20.400 and 20.401 [Removed] 

■ 101. Remove §§ 20.400 and 20.401. 

■ 102. Add §§ 20.400 through 20.407 to 

read as follows: 

§ 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 


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§ 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 VA and Board of 

Veterans’ Appeals adjudicators during 

the pendency of the contested appeal. 

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

Subpart F—Legacy Appeal in 

Simultaneously Contested Claims 

■ 103. Revise the subpart F heading to 

read as set forth above. 

■ 104. Redesignate § 20.500 as § 20.501 

and amend by: 

■ a. In the section heading removing the 

words ‘‘Rule 500’’ and adding in their 

place the words ‘‘Rule 501’’. 

■ b. In the introductory text removing 

the words ‘‘Rule 501 (§ 20.501 of this 

part)’’ and adding in their place the 

words ‘‘Rule 502 (§ 20.502)’’; 

■ c. Revising the authority citation of 

the newly redesignated § 20.501 to read 

as follows: 

§ 20.501 Who can file an appeal in 

simultaneously contested claims. 

* * * * * 

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

(2016)) 

■ 105. 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. 

■ 106. Redesignate § 20.501 as § 20.502 

and amend by: 

■ a. In the section heading removing the 

words ‘‘Rule 501’’ and adding in their 

place the words ‘‘Rule 502’’. 

■ b. In paragraphs (a) through (c), revise 

the authority citations of the newly 

redesignated § 20.502 to read as follows: 

(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)) 

■ 107. Redesignate § 20.502 as § 20.503, 

and amend by: 

■ a. In the section heading removing the 

words ‘‘Rule 502’’ and adding in their 

place the words ‘‘Rule 503’’. 

■ b. Revising the authority citation of 

the newly redesignated § 20.503 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)) 

■ 108. Redesignate § 20.503 as § 20.504, 

and amend by: 

■ a. In the section heading removing the 

words ‘‘Rule 503’’ and adding in their 

place the words ‘‘Rule 504’’. 

■ b. Revising the authority citation of 

the newly redesignated § 20.504 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)) 

■ 109. Redesignate § 20.504 as § 20.505, 

and 

■ a. In the section heading removing the 

words ‘‘Rule 504’’ and adding in their 

place the words ‘‘Rule 505’’. 

■ b. Revising the authority citation of 

the newly redesignated § 20.505 to read 

as follows: 

§ 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 

■ 110. Revise the subpart G heading to 

read as set forth above. 

■ 111. Redesignate § 20.600 as § 20.5, 

and revise the section heading by 

removing the words ‘‘Rule 600’’ and 

adding in their place the words ‘‘Rule 

5’’. 

■ 112. Redesignate § 20.608 as § 20.6 

and amend by: 

■ a. Revising the section heading by 

removing the words ‘‘Rule 608’’ and 

adding in their place the words ‘‘Rule 

6’’. 

■ b. Redesignating paragraph (a) as 

paragraph (b), and removing the words 

‘‘an appeal’’ both places it appears and 

adding in its place the words ‘‘a legacy 

appeal’’; 

■ c. Redesignating paragraph (b) as 

paragraph (a); 

■ d. In new paragraph (a), remove the 

heading; 

■ e. In new paragraph (a)(1), removing 

the words ‘‘§ 20.602 through 20.605 of 

this part’’ and adding in its place the 

words ‘‘§ 14.630 or § 14.631 of this 

chapter’’; 

■ f. In new paragraph (a)(2), removing 

the words ‘‘After the agency of original 

jurisdiction has certified an appeal to 

the Board of Veterans’ Appeals’’ and 

adding in its place the words ‘‘Except as 

otherwise provided in paragraph (b) of 

this section, after an appeal to the Board 

of Veterans’ Appeals has been filed’’; 

and 

■ g. In new paragraph (a)(2), removing 

the words ‘‘Office of the Principal 

Deputy Vice Chairman (01C),’’. 

■ 113. Remove the Note to subpart G. 

■ 114. 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. 

■ 115. Reserve §§ 20.606–20.699. 

Subpart H—Hearings on Appeal. 

■ 116. Amend § 20.700 by: 

■ a. Removing paragraphs (d) and (e); 

and 

■ b. Revising paragraphs (a) and (b) to 

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. 

(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 


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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. 

* * * * * 

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

■ 117. Redesignate § 20.702 as § 20.704 

and amend by: 

■ a. Revising the section heading; 

■ b. Revising paragraph (a); 

■ c. Revising paragraphs (c) through (e); 

and 

■ d. Adding new paragraph (f). 

The revisions and additions 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). 

(b) * * * 

(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 

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] 

■ 118. 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) 

■ 119. Redesignate § 20.703 as § 20.602 

and revise the newly redesignated 

§ 20.602 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 


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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) 

■ 120. 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) 

■ 121. Redesignate § 20.704 as § 20.603 

and revise the newly redesignated 

§ 20.603 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 

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 


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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. L. 

114–315; 130 Stat. 1536) 

[Approved by the Office of Management and 

Budget under control number 2900–0085] 

■ 122. Redesignate § 20.705 as § 20.601 

and revise the newly redesignated 

§ 20.601 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 

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) 

■ 123. Redesignate § 20.706 as § 20.705 

and revise the newly redesignated 

§ 20.705 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) Excluding documentary evidence, 

testimony, and/or argument which is 

not relevant or material to the issue or 

issues being considered or which is 

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) 

■ 124. 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) 

■ 125. Redesignate § 20.707 as § 20.604 

and amend by: 

■ a. In the section heading, remove the 

words ‘‘Rule 707’’ and add in their place 

the words ‘‘Rule 604’’; 

■ b. In the section heading, add the 

words ‘‘in a legacy appeal’’ after the 

word ‘‘hearing’’; 

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

part’’ and add in their place the words 

‘‘Rule 106 (§ 20.106)’’; 

■ d. Remove 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 

newly redesignated § 20.604 to read as 

follows: 

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

(2016)) 

■ 126. Redesignate § 20.708 as § 20.707 

and amend by: 

■ a. In the section heading, remove the 

words ‘‘Rule 708’’ and add in their place 

the words ‘‘Rule 707’’; 

■ b. Removing all text in the 

introductory text after the first sentence; 

and 

■ c. Adding an authority citation to the 

newly redesignated § 20.707 to read as 

follows: 

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

■ 127. Redesignate § 20.709 as § 20.605, 

revise the section heading, and add an 

authority citation to the newly 

redesignated § 20.605 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)) 

■ 128. Redesignate § 20.710 as § 20.708, 

and revise the section heading by 

removing the words ‘‘Rule 710’’ and add 

in their place the words ‘‘Rule 708’’ in 

the newly redesignated § 20.708. 

§ 20.711 [Redesignated and Amended] 

■ 129. Redesignate § 20.711 as § 20.709 

and amend by: 

■ a. In the section heading remove the 

words ‘‘Rule 711’’ and add in their place 

the words ‘‘Rule 709’’; and 

■ b. In paragraph (c), removing the 

words ‘‘Director, Office of Management, 

Planning and Analysis (014),’’ in the 

newly redesignated § 20.709. 

■ 130. Redesignate § 20.712 as § 20.710 

and revise the section heading by 


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removing the words ‘‘Rule 712’’ and add 

in their place the words ‘‘Rule 710’’ in 

the newly redesignated § 20.710. 

■ 131. Redesignate § 20.713 as § 20.711 

and revise paragraph (b) in the newly 

redesignated § 20.711 to read as follows: 

§ 20.711 Rule 711. Hearings in 

simultaneously contested claims. 

(a) * * * 

(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 

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), 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) 

■ 132. Redesignate § 20.714 as § 20.712 

and revise the newly redesignated 

§ 20.712 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. 

■ 133. Redesignate § 20.715 as § 20.713 

and amend by: 

■ a. Revising the section heading by 

removing the words ‘‘Rule 715’’ and 

adding in their place the words ‘‘Rule 

713’’; 

■ b. Revising the fourth sentence of the 

introductory text to read: ‘‘In all such 

situations, advance arrangements must 

be made with the Board of Veterans’ 

Appeals, P.O. Box 27063, Washington, 

DC 20038.’’; 

■ c. Removing the fifth and sixth 

sentences; and 

■ d. Revising the authority citation of 

the newly redesigated § 20.713 to read: 

§ 20.713 Rule 713. Recording of hearing by 

appellant or representative. 

* * * * * 

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

■ 134. Redesignate § 20.716 as § 20.714 

and revise the newly redesignated 

§ 20.714 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) 

■ 135. Redesignate § 20.717 as § 20.715 

and revise the newly redesignated 

§ 20.715 to read as follows: 

§ 20.715 Rule 715. Loss of hearing 

recordings or transcripts—motion 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] 

■ 136. Reserve §§ 20.716 and 20.717. 

Subpart I—Appeals Processing 

■ 137. Revise the subpart I heading to 

read as set forth above. 

■ 138. Redesignate § 20.800 as § 20.901, 

and amend by: 


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Federal Register / Vol. 83, No. 155 / Friday, August 10, 2018 / Proposed Rules 39863 

■ a. Revising the section heading by 

removing the words ‘‘Rule 800’’ and 

adding in their place the words ‘‘Rule 

901’’. 

■ b. Revising the authority citation of 

the newly redesignated § 20.901 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)) 

■ 139. Add §§ 20.800 through 20.804 to 

read as follows: 

§ 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, Pub. L. 

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 VA and Board of 

Veterans’ Appeals adjudicators, unless 

rebutted by clear and convincing 

evidence to the contrary. 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) A decision by a panel of Members 

will be by a majority vote of the panel 

Members. 

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


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§ 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 

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 

■ 140. Revise the subpart J heading as 

set forth above. 

■ 141. Redesignate § 20.900 as § 20.902 

and amend by: 

■ a. Revising the section heading by 

removing the words ‘‘Rule 900’’ and 

adding in their place the words ‘‘Rule 

902’’; 

■ b. In paragraph (c)(1), revising the 

third sentence; 

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

words ‘‘Director, Office of Management, 

Planning and Analysis (014),’’; 

■ d. Revise the authority citation at the 

end of paragraph (d); and 

■ e. Revise the authority citation of the 

newly redesignated § 20.902 to 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)) 

■ 142. Add § 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, Pub. L. 115–55; 131 Stat. 

1105) 

§ 20.901 [Redesignated and Amended] 

■ 143. Redesignate § 20.901 as § 20.906 

and amend by: 

■ a. Revising the section heading by 

replacing the words ‘‘Rule 901’’ and 

adding in their place the words ‘‘Rule 

906’’. 

■ b. In paragraph (b), removing the 

words ‘‘Armed Forces Institute of 

Pathology’’ and adding in its place the 

words ‘‘Joint Pathology Center’’ both 

places it appears in the newly 

redesignated § 20.906. 

■ 144. Redesignate § 20.902 as § 20.907 

and amend by: 

■ a. Revising the section heading by 

removing the words ‘‘Rule 902’’ and 

adding in their place the words ‘‘Rule 

907’’. 

■ b. In the introductory text removing 

the words ‘‘Rule 901 (§ 20.901 of this 

part)’’ and adding in its place the words 

‘‘Rule 906 (§ 20.906)’’ in the newly 

redesignated § 20.907. 

■ 145. Redesignate § 20.903 as § 20.908 

and amend by: 

■ a. Revising the section heading by 

removing the words ‘‘Rule 903’’ and 

adding in their place the words ‘‘Rule 

908’’; 

■ b. In paragraph (a), 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), 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))’’ in the newly 

redesignated § 20.908. 

■ 146. Redesignate § 20.904 as § 20.1000 

and amend by revising the section 


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

the newly redesignated § 20.1000 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 appeal, as defined in 

§ 19.2 of this chapter, when a Statement 

of the Case or required Supplemental 

Statement of the Case was not provided. 

* * * * * 

Subpart K—Vacatur and 

Reconsideration 

■ 147. Revise the subpart K heading as 

set forth above. 

§ 20.1000 [Redesignated and Amended] 

■ 148. Redesignate § 20.1000 as 

§ 20.1001 and amend by: 

■ a. Revising the section heading by 

removing the words ‘‘Rule 1000’’ and 

adding in their place the words ‘‘Rule 

1001’’; 

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

from paragraph (b). 

§ 20.1001 [Redesignated and Amended] 

■ 149. Redesignate § 20.1001 as 

§ 20.1002 and amend by: 

■ a. Revising the section heading by 

removing the words ‘‘Rule 1001’’ and 

adding in their place the words ‘‘Rule 

1002’’; 

■ b. In paragraph (b), removing the 

words ‘‘Director, Office of Management, 

Planning and Analysis (014),’’; and 

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

words‘‘§ 19.11 of this chapter’’ and 

adding in its place the words ‘‘Rule 

1004 (§ 20.1004)’’ in the newly 

redesignated § 20.1002. 

■ 150. Amend § 20.1003 by revising the 

first sentence and removing the fifth 

sentence of the introductory text to read 

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 

■ 151. Amend § 20.1103 by revising 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. 

■ 152. Amend § 20.1105 by revising 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 

■ 153. 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 

■ 154. Amend § 20.1301 by: 

■ a. Redesignating paragraph (b) as 

paragraph (c) and revising the newly 

redesignated paragraph (c)(1) by 

removing the text ‘‘the internet at http:// 

www.index.va.gov/search/va/bva.html’’ 

and replacing it with the text ‘‘the 

Board’s website’’; 

■ b. Adding new paragraph (b) and 

revising paragraph (a); 

■ c. In paragraph (c)(2): 

■ 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 additions and revisions 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) is also 

applicable to Statements of the Case and 

supplemental Statements of the Case. 

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

* * * * * 

■ 155. Amend § 20.1302 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. 

■ 156. Redesignate § 20.1304 as 

§ 20.1305 and amend by: 

■ a. Revising the section heading and 

paragraph (a); 

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

words ‘‘Director, Office of Management, 

Planning and Analysis (014),’’; 

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

words ‘‘§ 20.903 of this chapter’’ and 

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

■ d. In paragraph (c), removing the 

words ‘‘§ 20.903’’ and adding in their 

place the words ‘‘§ 20.908’’; 

■ e. Revising the authority citation in 

the newly redesignated § 20.1305 to 

read as follows: 


daltland on DSKBBV9HB2PROD with PROPOSALS2
39866 Federal Register / Vol. 83, No. 155 / Friday, August 10, 2018 / Proposed Rules 

§ 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)) 

■ 157. 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 

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) 

§ § 20.1306–20.1399 [Reserved] 

■ 158. Add and reserve §§ 20.1306 

through 20.1399. 

Subpart O—Revision of Decisions on 

Grounds of Clear and Unmistakable 

Error 

§ 20.1401 [Amended] 

■ 159. 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). 

■ 160. 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) * * * 

(1) * * * 

(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] 

■ 161. Amend § 20.1404(c) by removing 

‘‘Director, Office of Management, 

Planning and Analysis (014),’’. 

■ 162. Amend § 20.1405 by: 

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

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

in its place the words ‘‘§ 20.106’’; 

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

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

part)’’ and adding in its 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), removing the 

words ‘‘Director, Office of Management, 

Planning and Analysis (014),’’; 

■ d. Removing paragraph (d); 

■ e. Redesignating paragraph (e) as 

paragraph (d); 

■ f. Redesignating paragraph (f) as 

paragraph (e); 

■ g. Redesignating paragraph (g) as 

paragraph (f) and revising the first 

sentence of the newly redesignated 

paragraph (f) to read as follows: 

§ 20.1405 Rule 1405. Disposition. 

* * * * * 

(f) Decision.The decision of the Board 

on a motion under this subpart will be 

in writing. 

* * * * * 

■ 163. 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 introductory text. 

■ 164. Amend § 20.1409(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)’’. 


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■ 165. Amend § 20.1411 by revising 

paragraphs (b) and (d) to read as 

follows: 

§ 20.1411 Rule 1411. Relationship to other 

statutes. 

(a) * * * 

(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). 

(c) * * * 

(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). 

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

§ § 20.1412–20.1499 [Added and Reserved] 

■ 166. Add and reserve §§ 20.1412 

through 20.1499. 

Subpart P—Expedited Claims 

Adjudication Initiative—Pilot Program 

■ 167. Remove and reserve subpart P, 

consisting of §§ 20.1500–20.1510. 

■ 168. Remove Appendix A to Part 20— 

Cross-References. 

PART 21—VOCATIONAL 

REHABILITATION AND EMPLOYMENT 

Subpart A—Vocational Rehabilitation 

and Employment Under 38 U.S.C. 

Chapter 31 

■ 169. 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. 

■ 170. Remove §§ 21.59 and 21.98. 

■ 171. Remove the CROSS REFERENCE 

from the end of § 21.184. 

■ 172. Amend § 21.188(b) by removing 

the words ‘‘§ 21.96, or § 21.98’’ and 

adding in its place the words ‘‘or 

§ 21.96’’. 

■ 173. Amend § 21.190(b) by removing 

the words ‘‘§ 21.96, or § 21.98’’ and 

adding in its place the words ‘‘or 

§ 21.96’’. 

■ 174. Amend § 21.192(b) by removing 

the words ‘‘§ 21.96, or § 21.98’’ and 

adding in its place the words ‘‘or 

§ 21.96’’. 

■ 175. Amend § 21.194(b) by removing 

the words ‘‘§ 21.94 and 21.98’’ and 

adding in its place the words ‘‘and 

§ 21.94’’. 

■ 176. Amend § 21.282(c)(4) by 

removing the words ‘‘21.98’’ and adding 

in its place the words ‘‘21.96’’. 

■ 177. Amend § 21.412(a)(2) by 

removing the words ‘‘(See §§ 19.153, 

19.154, and 19.155’’. 

■ 178. Amend § 21.414 by: 

■ a. In paragraph (e), removing the 

period following ‘‘§ 3.105(e)’’ and 

adding in its place a semicolon. 

■ b. Adding a new paragraph (f). 

■ c. Revising the authority citation. 

The revisions and additions read as 

follows: 

§ 21.414 Revision of decision. 

* * * * * 

(f) Review of decisions, § 21.416. 

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

■ 179. Add § 21.416 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 veteran 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 

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 veteran may elect one 

of the following administrative review 

options: 

(1) Supplemental Claim Review. 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. The Vocational 

Rehabilitation and Employment (VR&E) 

staff member will inform the veteran or 

his or her decision within 125 days of 

receipt of the supplemental claim. 

(2) Board of Veterans’ Appeals 

Review. See 38 CFR part 20. 

(3) Higher-level Review. Reviews will 

be conducted by a VR&E employee who 

did not participate in the prior decision 

and is more senior than the employee 

that made the prior decision currently 

under review. Selection of an employee 

to conduct a review of the decision is at 

VR&E’s discretion. The VR&E staff 

member will inform the veteran of his 

or her decision within 90 days of receipt 

of the request for higher-level review. 

(i) Evidentiary record. The evidentiary 

record in a higher-level review is 

limited to the evidence of record at the 

time VA issued the prior decision under 

review. Except as provided in paragraph 

(ii) of this section, the higher-level 

adjudicator may not consider, or order 

development of, additional evidence 

that may be relevant to the issue under 

review. 

(ii) Duty to assist errors. The higherlevel adjudicator will ensure that VR&E 

has complied with its statutory duty to 

assist in gathering evidence applicable 

prior to issuance of the decision being 

reviewed. If the higher-level adjudicator 

both identifies a duty to assist error that 

existed at the time of VR&E’s decision 

on the claim under review, and cannot 

resolve the issue in the veteran’s favor 

with the information at hand, the 

higher-level adjudicator must return the 

claim to the assigned VR&E case 

manager (unless that manager is 

unavailable) for correction of the error 

and readjudication. Upon receipt, the 

VR&E case manager will readjudicate 

the claim within 30 days. 

(iii) Informal conferences. A veteran 

or his or her representative may request 

an informal conference during the 

higher-level review process. For 

purposes of this section, informal 

conference means contact with a veteran 

and/or his or her representative 

telephonically or in person, as 

determined by VR&E, for the sole 

purpose of allowing the veteran or 

representative to identify any errors of 

law or fact in a prior decision. When 

requested, VA will make reasonable 

efforts to conduct one informal 

conference during a review. The higherlevel adjudicator or designated 

representative will conduct the informal 

conference and document any 

arguments of fact or law presented by 

the veteran or his or her representative 

for inclusion in the record. Any 

expenses incurred by the veteran in 

connection with the informal 

conference are the responsibility of the 

veteran. 

(iv) De novo review. The higher-level 

adjudicator will consider only those 

issues for which the veteran has 

requested a review, and will conduct a 

de novo review giving no deference to 

the prior decision, except as provided in 

§ 3.104(c) of this chapter. 

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

sought in the claim based on a 

difference of opinion (see § 3.105(b) of 

this chapter). However, findings 

favorable to the veteran will not be 

reversed in the absence of clear and 

convincing evidence to the contrary. In 

addition, the higher-level adjudicator 

will not revise the outcome in a manner 

that is less advantageous to the veteran 

based solely on a difference of opinion. 

The higher-level adjudicator may 

reverse or revise (even if 

disadvantageous to the veteran) prior 

decisions by VR&E (including the 

decision being reviewed or any prior 

decision) on the grounds of clear and 

unmistakable error under § 3.105(a)(1) 

or (2) of this chapter, as applicable, 


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depending on whether the prior 

decision is finally adjudicated. 

(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) 

■ 180. Amend § 21.420 by: 

■ a. Revising paragraphs (b) and (d). 

■ c. Adding new paragraph (e). 

■ d. Revising the authority citation to 

read as follows: 

§ 21.420 Informing the veteran. 

(a) * * * 

(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 

subsequent VA and Board of Veterans’ 

Appeals adjudicators, unless rebutted 

by clear and convincing evidence to the 

contrary. 

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

7105) 

■ 181. Amend § 21.430(b) by removing 

the text ‘‘21.98’’ and adding in its place 

the text ‘‘21.96’’. 

Subpart B—Claims and Applications 

for Educational Assistance 

■ 182. The authority citation for part 21, 

subpart B is revised to read as follows: 

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

§ 21.1033 [Amended] 

■ 183. Amend § 21.1033(f)(2) by 

removing the text ‘‘§§ 20.302 and 

20.305’’ and adding in its place the text 

‘‘§§ 20.203 and 20.110’’. 

■ 184. 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) 

■ 185. 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 


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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] 

■ 186. Amend § 21.6058(b) by removing 

the text ‘‘21.59’’ and adding in its place 

the text ‘‘21.416’’. 

§ 21.6080 [Amended] 

■ 187. Amend § 21.6080 by: 

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

‘‘21.96 and 21.98’’ and adding its place 

the text ‘‘and 21.96’’. 

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

text ‘‘21.98’’ and adding in its place the 

text ‘‘21.416’’. 

[FR Doc. 2018–15754 Filed 8–9–18; 8:45 am] 

BILLING CODE 8320–01–P 


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