Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20447

Rating

Evidence of increased intracranial

pressure (such as visual field defect), arthropathy, glucose intolerance, and either hypertension or

cardiomegaly ................................. 100

Arthropathy, glucose intolerance,

and hypertension ........................... 60

Enlargement of acral parts or overgrowth of long bones, and enlarged sella turcica ........................ 30

7909 Diabetes insipidus

Polyuria with near-continuous thirst,

and more than two documented

episodes of dehydration requiring

parenteral hydration in the past

year ................................................ 100

Polyuria with near-continuous thirst,

and one or two documented episodes of dehydration requiring

parenteral hydration in the past

year ................................................ 60

Polyuria with near-continuous thirst,

and one or more episodes of dehydration in the past year not requiring parenteral hydration ........... 40

Polyuria with near-continuous thirst 20

7911 Addison’s disease (Adrenal

Cortical Hypofunction)

Four or more crises during the past

year ................................................ 60

Three crises during the past year, or;

five or more episodes during the

past year ........................................ 40

One or two crises during the past

year, or; two to four episodes during the past year, or; weakness

and fatigability, or; corticosteroid

therapy required for control ........... 20

NOTE (1): An Addisonian ‘‘crisis’’

consists of the rapid onset of peripheral vascular collapse (with

acute hypotension and shock),

with findings that may include:

anorexia; nausea; vomiting; dehydration; profound weakness; pain

in abdomen, legs, and back; fever;

apathy, and depressed mentation

with possible progression to coma,

renal shutdown, and death.

NOTE (2): An Addisonian ‘‘episode,’’

for VA purposes, is a less acute

and less severe event than an

Addisonian crisis and may consist

of anorexia, nausea, vomiting, diarrhea, dehydration, weakness,

malaise, orthostatic hypotension,

or hypoglycemia, but no peripheral

vascular collapse.

NOTE (3): Tuberculous Addison’s disease will be evaluated as active or

inactive tuberculosis. If inactive,

these evaluations are not to be

combined with the graduated ratings of 50 percent or 30 percent

for non-pulmonary tuberculosis

specified under § 4.88b. Assign

the higher rating.

7912 Pluriglandular syndrome

Evaluate according to major manifestations.

7913 Diabetes mellitus

Rating

Requiring more than one daily injection of insulin, restricted diet, and

regulation of activities (avoidance

of strenuous occupational and recreational activities) with episodes

of ketoacidosis or hypoglycemic

reactions requiring at least three

hospitalizations per year or weekly

visits to a diabetic care provider,

plus either progressive loss of

weight and strength or complications that would be compensable if

separately evaluated ..................... 100

Requiring insulin, restricted diet, and

regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one

or two hospitalizations per year or

twice a month visits to a diabetic

care provider, plus complications

that would not be compensable if

separately evaluated ..................... 60

Requiring insulin, restricted diet, and

regulation of activities .................... 40

Requiring insulin and restricted diet,

or; oral hypoglycemic agent and

restricted diet ................................. 20

Manageable by restricted diet only ... 10

NOTE (1): Evaluate compensable

complications of diabetes separately unless they are part of the

criteria used to support a 100 percent evaluation. Noncompensable

complications are considered part

of the diabetic process under diagnostic code 7913.

NOTE (2): When diabetes mellitus

has been conclusively diagnosed,

do not request a glucose tolerance

test solely for rating purposes.

7914 Neoplasm, malignant, any specified part of the endocrine system .... 100

NOTE: A rating of 100 percent shall

continue beyond the cessation of

any surgical, X-ray, antineoplastic

chemotherapy or other therapeutic

procedure. Six months after discontinuance of such treatment, the

appropriate disability rating shall

be determined by mandatory VA

examination. Any change in evaluation based upon that or any

subsequent examination shall be

subject to the provisions of

§ 3.105(e) of this chapter. If there

has been no local recurrence or

metastasis, rate on residuals.

7915 Neoplasm, benign, any specified part of the endocrine system

rate as residuals of endocrine dysfunction.

7916 Hyperpituitarism (prolactin secreting pituitary dysfunction)

7917 Hyperaldosteronism (benign or

malignant)

7918 Pheochromocytoma (benign or

malignant)

NOTE: Evaluate diagnostic codes

7916, 7917, and 7918 as malignant or benign neoplasm as appropriate.

7919 C-cell hyperplasia of the thyroid 100

Rating

NOTE: A rating of 100 percent shall

continue beyond the cessation of

any surgical, X-ray, antineoplastic

chemotherapy or other therapeutic

procedure. Six months after discontinuance of such treatment, the

appropriate disability rating shall

be determined by mandatory VA

examination. Any change in evaluation based upon that or any

subsequent examination shall be

subject to the provisions of

§ 3.105(e) of this chapter. If there

has been no local recurrence or

metastasis, rate on residuals.

[FR Doc. 96–11281 Filed 5–6–96; 8:45 am]

BILLING CODE 8320–01–P

Board of Veterans’ Appeals

38 CFR Parts 19 and 20

RIN 2900–AH16

Appeals Regulations, Rules of

Practice: Single Member and Panel

Decisions; Reconsiderations; Order of

Consideration

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

SUMMARY: This document amends the

Appeals Regulations and Rules of

Practice of the Board of Veterans’’

Appeals. The amendments incorporate

recent statutory changes (including

provisions to allow matters to be

decided by individual Board members),

set forth procedures regarding

reconsideration of decisions, change

office names and designations due to

administrative changes within the

Board, and make other nonsubstantive

changes.

DATES: Effective Date: This final rule is

effective May 7, 1996.

Applicability Dates: The

incorporation of statutory provisions

and statutory interpretations contained

in this final rule will be applied

retroactively from the effective dates of

the statutory provisions. For more

information concerning the application

of the provisions of this final rule, see

the SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT:

Steven L. Keller, Chief Counsel, Board

of Veterans’ Appeals, Department of

Veterans Affairs, 810 Vermont Avenue,

NW, Washington, DC 20420 (202–565–

5978).

SUPPLEMENTARY INFORMATION: This

document amends the Appeals

Regulations, 38 CFR Part 19, and the

Rules of Practice, 38 CFR Part 20, of the
20448 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

Board of Veterans’ Appeals (Board). The

Board adjudicates appeals of denials of

claims for veterans’ benefits.

Public Law 103–271

In large part, the amendments made

by this document reflect statutory

changes made by Public Law 103–271.

Changes are made to §§ 19.3, 19.9,

19.11, 19.12, 19.76, 20.3, 20.102, 20.401,

20.606, 20.700, 20.702 through 20.705,

20.707 through 20.708, 20.711, 20.714

through 20.717, 20.901, 20.1003, and

20.1100, to reflect that, under Public

Law 103–271, the Board’s Chairman

may assign matters, including hearings,

to individual Board members or to

panels of three or more members.

Changes are made to §§ 19.3, 19.11,

20.102, 20.608, 20.707, 20.711, 20.717,

and 20.1304 to reflect that, under Public

Law 103–271, a proceeding may not be

assigned to the Chairman as an

individual member but that the

Chairman may participate in a

proceeding assigned to a panel, or in a

reconsideration assigned to a panel, and

to reflect how a reconsideration panel is

to be constituted.

Changes are made to §§ 19.11 and

20.707 to reflect that, under Public Law

103–271, reconsideration of a matter

heard by a single member shall be

referred to a panel of not less than three

Board members, that reconsideration of

a matter heard by a panel of members

shall be referred to an enlarged panel,

and that a reconsideration panel may

not include any member who made the

decision that is being reconsidered.

Changes are made to §§ 19.75 and

20.704 to reflect that, under Public Law

103–271, hearings at a facility within

the area served by a VA regional office

shall be scheduled to be held in the

order in which requested, but may be

scheduled earlier if the appellant is

seriously ill or under severe financial

hardship.

Changes are made to § 20.3 to reflect

that, under Public Law 103–271, in lieu

of a personal hearing, an appellant may

participate in a Board hearing through

picture or through voice transmission,

by electronic or other means, with the

Board member or members at the

Board’s principal location.

Miscellaneous

In addition, definitions of ‘‘electronic

hearing’’ and ‘‘presiding member’’ have

been added to § 20.3 to reflect the

Board’s interpretation of Public Law

103–271 and, in § 20.900, paragraph (b)

has been revised and paragraph (d)

added to reflect the Board’s

interpretation of the requirement,

established by Public Law 103–446,

Section 302, that cases remanded by the

Court of Veterans Appeals be treated

expeditiously.

Further, § 19.11(b) has been amended

to provide that reconsideration panels

are to be enlarged in increments of three

as necessary to obtain a majority

decision. This constitutes the policy for

the Board to use in implementing the

provisions of Public Law 103–271.

Finally, Parts 19 and 20 are amended

to update current titles and designations

within the Board, and to make other

nonsubstantive changes.

This final rule consists of

incorporation of statutory provisions,

interpretive rules, rules of agency

procedure or practice, and

nonsubstantive changes and, therefore,

is not subject to the notice and comment

and effective date provisions of 5 U.S.C.

553.

The Secretary hereby certifies that

this final rule will not have a significant

economic impact on a substantial

number of small entities as they are

defined in the Regulatory Flexibility Act

(RFA), 5 U.S.C. 601–602, since it does

not contain any substantive provisions.

This final rule would not cause a

significant effect on any entities.

Therefore, pursuant to 5 U.S.C. 605(b),

this amendment is exempt from the

initial and final regulatory flexibility

analysis requirements of sections 603

and 604.

Incorporation of statutory provisions

and statutory interpretations made by

this final rule will be applied

retroactively from the effective dates of

the statutory provisions. The dates of

application for such changes and for

certain of the nonsubstantive changes

made for clarity, to correct

typographical errors, or to reflect

statutory recodification changes are as

follows:

July 1, 1994: §§ 19.3(a) and (b); 19.4;

19.9; 19.11; 19.12(b); 19.75; 19.76;

20.3(h) and (n); 20.102(c) and (d);

20.401(b); 20.606(a), (b), and (d);

20.608(b)(2); 20.700(b) and (d);

20.702(a), (c), (d), and (e); 20.704(a), (c),

(d), (e), and (f); 20.705(b); 20.707;

20.708; 20.711(e) and (h); 20.714(a)(4);

20.715; 20.716; 20.717(d); 20.901(e);

20.1003; 20.1100(a); and 20.1304(b).

November 2, 1994: § 20.900(b) and

(d).

List of Subjects

38 CFR Part 19

Administrative practice and

procedure, Claims, Veterans.

38 CFR Part 20

Administrative practice and

procedure, Claims, Lawyers, Legal

services, Veterans.

Approved: April 30, 1996.

Jesse Brown,

Secretary of Veterans Affairs.

For the reasons set out in the

preamble, title 38 of the Code of Federal

Regulations, parts 19 and 20, are

amended under the authority of Public

Law 103–271, 108 Stat. 740, and Public

Law 103–446, 108 Stat. 4645, as set

forth below:

PART 19—BOARD OF VETERANS’

APPEALS: APPEALS REGULATIONS

1. The authority citation for part 19

continues to read as follows:

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

Subpart A—Operation of the Board of

Veterans’ Appeals

2. Section 19.2 is revised to read as

follows:

§ 19.2 Composition of the Board.

The Board consists of a Chairman,

Vice Chairman, Deputy Vice Chairmen,

Members and professional,

administrative, clerical and

stenographic personnel. Deputy Vice

Chairmen are Members of the Board

who are appointed to that office by the

Secretary upon the recommendation of

the Chairman.

(Authority: 38 U.S.C. 501(a), 512, 7101(a))

3. Section 19.3 is revised to read as

follows:

§ 19.3 Assignment of proceedings.

(a) Assignment. The Chairman may

assign a proceeding instituted before the

Board, including any motion, to an

individual Member or to a panel of three

or more Members for adjudication or

other appropriate action. The Chairman

may participate in a proceeding

assigned to a panel of Members.

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

(b) Inability to serve. If a Member is

unable to participate in the disposition

of a proceeding or motion to which the

Member has been assigned, the

Chairman may assign the proceeding or

motion to another Member or substitute

another Member (in the case of a

proceeding or motion assigned to a

panel).

Authority: 38 U.S.C. 7101(a), 7102)

§ 19.4 [Amended]

In § 19.4 the authority citation is

revised to read as follows:

(Authority: 38 U.S.C. 7102, 7104, 7107)

5. Section 19.7 is amended by adding

a new paragraph (c) to read as follows:

§ 19.7 The decision.

* * * * *
Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20449

(c) A decision by a panel of Members

will be by a majority vote of the panel

Members.

6. Section 19.9 is revised to read as

follows:

§ 19.9 Remand for further development.

When, during the course of review, it

is determined that further evidence or

clarification of the evidence or

correction of a procedural defect is

essential for a proper appellate decision,

a Member or panel of Members of the

Board shall remand the case to the

agency of original jurisdiction,

specifying the action to be undertaken.

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

7. Section 19.11 is revised to read as

follows:

§ 19.11 Reconsideration panel.

(a) Assignment of Members. When a

motion for reconsideration is allowed,

the Chairman will assign a panel of

three or more Members of the Board,

which may include the Chairman, to

conduct the reconsideration.

(b) Number of Members constituting a

reconsideration panel. In the case of a

matter originally heard by a single

Member of the Board, the case shall be

referred to a panel of three Members of

the Board. In the case of a matter

originally heard by a panel of Members

of the Board, the case shall be referred

to an enlarged panel, consisting of three

or more Members than the original

panel. In order to obtain a majority

opinion, the number of Members

assigned to a reconsideration panel may

be increased in successive increments of

three.

(c) Members included in the

reconsideration panel. The

reconsideration panel may not include

any Member who participated in the

decision that is being reconsidered.

Additional Members will be assigned in

accordance with paragraph (b) of this

section.

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

8. Section 19.12(b) is revised to read

as follows:

§ 19.12 Disqualification of Members.

* * * * *

(b) Appeal on same issue subsequent

to decision on administrative appeal.

Any Member of the Board who made the

decision on an administrative appeal

will disqualify himself or herself from

acting on a subsequent appeal by the

claimant on the same issue.

(Authority: 38 U.S.C. 7102, 7104, 7106)

* * * * *

Subpart B—Appeals Processing by

Agency of Original Jurisdiction

§ 19.30 [Amended]

9. In § 19.30 paragraph (b), is

amended by removing ‘‘VA Form 1–9’’

and adding, in its place, ‘‘VA Form 9’’.

§ 19.31 [Amended]

10. In § 19.31, the last sentence is

removed.

§ 19.35 [Amended]

11. Section 19.35 is amended by

removing ‘‘VA Form 1–8’’ and adding,

in its place, ‘‘VA Form 8’’.

Subpart C—Administrative Appeals

12. Section 19.51(a)(1) is revised to

read as follows:

§ 19.51 Officials authorized to file

administrative appeals and time limits for

filing.

* * * * *

(a) Central Office—(1) Officials. The

Under Secretary for Benefits or a service

director of the Veterans Benefits

Administration, the Under Secretary for

Health or a service director of the

Veterans Health Administration, and the

General Counsel.

* * * * *

13. The heading for Subpart D is

revised to read as follows:

Subpart D—Hearings Before the Board

of Veterans’ Appeals at Department of

Veterans Affairs Field Facilities

14. Section 19.75 is revised to read as

follows:

§ 19.75 Hearing docket.

Hearings on appeal held at

Department of Veterans Affairs field

facilities will be scheduled for each area

served by a regional office in the order

in which requests for such hearings

within that area are received by the

Department except when a motion to

advance the case on the hearing docket

is granted under Rule of Practice 704(f)

(38 CFR 20.704(f)).

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

15. Section 19.76 is revised to read as

follows:

§ 19.76 Notice of time and place of hearing

before the Board of Veterans’ Appeals at

Department of Veterans Affairs field

facilities.

The agency of original jurisdiction

will notify the appellant and his or her

representative of the place and time of

a hearing before the Board of Veterans’

Appeals at a Department of Veterans

Affairs field facility not less than 60

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 at a

Department of Veterans Affairs field

facility with good cause. The right to

notice at least 60 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. 7107)

§ 19.77 [Removed and revised]

16. Section 19.77 is removed, and

revised.

Subpart E—Simultaneously Contested

Claims

17. Section 19.101 is amended by

removing ‘‘VA Form 1–9’’ and adding,

in its place, ‘‘VA Form 9’’.

PART 20—BOARD OF VETERANS’

APPEALS: RULES OF PRACTICE

18. The authority citation for part 20

continues to read as follows:

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

Subpart A—General

19. Section 20.3 is amended by

redesignating paragraphs (h), (i), (j), (k),

(l), (m), and (n) as (i), (j), (k), (l), (m), (o),

and (p) respectively, and adding new

paragraphs (h) and (n) to read as

follows:

§ 20.3 Rule 3. Definitions.

* * * * *

(h) Electronic hearing means a hearing

on appeal in which an appellant or a

representative participates, through

voice transmission or through picture

and voice transmission, by electronic or

other means, in a hearing with a

Member or Members sitting at the

Board’s principal location in

Washington, DC.

* * * * *

(n) Presiding Member means that

Member of the Board who presides over

a hearing, whether conducted as a single

Member or panel hearing.

* * * * *

Subpart B—The Board

20. In § 20.102 paragraph (d) is

removed, and paragraph (c) is revised to

read as follows:

§ 20.102. Rule 102. Delegation of

authority—Rules of Practice.

* * * * *

(c) The authority exercised by the

Chairman of the Board of Veterans’
20450 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

Appeals described in Rules 2 and 606(e)

(§§ 20.2, and 20.606(e) of this part), 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.

* * * * *

Subpart C—Commencement and

Perfection of Appeal

§ 20.202 [Amended]

21. Section 20.202 is amended by

removing ‘‘VA Form 1–9’’ and adding,

in its place, ‘‘VA Form 9’’.

Subpart E—Administrative Appeals

22. In § 20.401, paragraph (b) is

revised to read as follows:

§ 20.401 Rule 401. Effect of decision on

administrative or merged appeal on

claimant’s appellate rights.

* * * * *

(b) Appeal not merged. If the claimant

does not authorize merger, normal

appellate rights on the same issue are

preserved, and the Chairman will assign

the proceeding to a Member or panel of

Members of the Board who did not

make the decision on the administrative

appeal. The period of time from the date

of notification to the claimant of the

administrative appeal to the date of the

Board’s decision on the administrative

appeal is not chargeable to the claimant

for purposes of determining the time

limit for perfecting his or her separate

appeal.

* * * * *

Subpart G—Representation

§ 20.603 [Amended]

23. Section 20.603(a) is amended by

removing ‘‘VA Form 2–22a’’ and adding,

in its place, ‘‘VA Form 22a’’.

§ 20.604 [Amended]

24. Section 20.604(a) is amended by

removing ‘‘VA Form 2–22a’’ and adding,

in its place, ‘‘VA Form 22a’’.

§ 20.605 [Amended]

25. Section 20.605(c) is amended by

removing ‘‘VA Form 2–22a’’ and adding,

in its place, ‘‘VA Form 22a’’.

§ 20.606 [Amended]

26. In § 20.606, paragraph (a) is

amended by removing ‘‘before traveling

Sections of the Board’’. Paragraph (b) is

amended by removing ‘‘Chief, Hearing

Section (014B)’’ and adding, in its place,

‘‘Director, Administrative Service

(014)’’; and by removing ‘‘appeals before

traveling Sections of the Board’’ and

adding, in its place, ‘‘hearings before a

Member or Members of the Board at

Department of Veterans field facilities’’;

and by removing ‘‘traveling Section’’

and adding, in its place, ‘‘hearing’’.

Paragraph (d) is amended by removing

‘‘Chief of Hearing Section’’ and adding,

in its place, ‘‘Director of the

Administrative Service’’; and by

removing ‘‘proceedings before traveling

Sections’’ and adding, in its place,

‘‘hearings before a Member or

Members’’; and by revising the phrase

‘‘not more than 10 days prior to the

scheduled hearing date’’ to read, ‘‘not

less than 10 days prior to the scheduled

hearing date,’’ and reinserting it directly

after the first appearance of ‘‘attorney-atlaw’’ in the second sentence; and

removing ‘‘traveling Section’’ in the

third sentence and adding, in its place,

‘‘hearing’’.

§ 20.608 [Amended]

27. In § 20.608, paragraph (b)(2), the

last sentence is removed.

28. The heading for Subpart H is

revised to read as follows:

Subpart H—Hearings on Appeal

29. In § 20.700, paragraph (b) is

amended in the third sentence by

removing ‘‘personal’’, and by removing

‘‘of the hearing panel involved’’ in the

last sentence and adding, in its place,

‘‘assigned to conduct the hearing’’;

paragraph (d) is amended in the second

sentence by removing ‘‘a Board of

Veterans’ Appeals hearing panel’’ and

adding, in its place, ‘‘the Board of

Veterans Appeals’’, and by removing

‘‘panel members’’ in the third sentence

and adding, in its place, ‘‘Member or

Members to whom the appeal has been

assigned for a determination’’; a new

paragraph (e) is added; and the

authority citation is revised to read as

follows.

§ 20.700 Rule 700. General.

* * * * *

(e) Electronic hearings. When suitable

facilities and equipment are available,

an appellant may be scheduled for an

electronic hearing. Any such hearing

will be in lieu of a hearing held by

personally appearing before a Member

or panel of Members of the Board and

shall be conducted in the same manner

as, and considered the equivalent of,

such a hearing. If an appellant declines

to participate in an electronic hearing,

the appellant’s opportunity to

participate in a hearing before the Board

shall not be affected.

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

§ 20.701 [Amended]

30. In § 20.701, the authority citation

is revised to read as follows:

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

31. Section 20.702 is amended by

revising the last sentence in paragraph

(c)(1), the last two sentences in

paragraph (c)(2), the fourth and last

sentences in paragraph (d), the last

sentence in paragraph (e), and the

authority citations for paragraphs (a)

through (e) to read as follows:

§ 20.702 Rule 702. Scheduling and notice

of hearings conducted by the Board of

Veterans’ Appeals in Washington, DC.

(a) * * *

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

(b) * * *

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

(c) Requests for changes in hearing

dates. (1) * * * In the case of hearings

to be conducted by the Board of

Veterans’ Appeals in Washington, DC,

such requests for a new hearing date

must be filed with: Director,

Administrative Service (014), Board of

Veterans’ Appeals, 810 Vermont

Avenue, NW., Washington, DC 20420.

(2) * * * In the case of a hearing

conducted by the Board of Veterans’

Appeals in Washington, DC, whether

good cause for establishing a new

hearing date has been shown will be

determined by the presiding Member

assigned to conduct the hearing. In the

case of hearings to be conducted by the

Board of Veterans’ Appeals in

Washington, DC, the motion for a new

hearing date must be filed with:

Director, Administrative Service (014),

Board of Veterans’ Appeals, 810

Vermont Avenue, NW., Washington, DC

20420.

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

7107)

(d) Failure to appear for a scheduled

hearing. * * * In the case of hearings to

be conducted by the Board of Veterans’

Appeals in Washington, DC, the motion

must be filed with: Director,

Administrative Service (014), Board of

Veterans’ Appeals, 810 Vermont

Avenue, NW., Washington, DC 20420.

* * * In the case of hearings before the

Board of Veterans’ Appeals in

Washington, DC, whether good cause for

such failure to appear has been

established will be determined by the

presiding Member assigned to conduct

the hearing.

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

7107)

(e) Withdrawal of hearing requests.

* * * In the case of hearings to be

conducted by the Board of Veterans’

Appeals in Washington, DC, the notice

of withdrawal must be sent to: Director,

Administrative Service (014), Board of
Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20451

Veterans’ Appeals, 810 Vermont

Avenue, NW., Washington, DC 20420.

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

(Approved by the Office of Management and

Budget under control number 2900–0085)

32. Section 20.703 is revised to read

as follows:

§ 20.703 Rule 703. When right arises to

hearing before the Board of Veterans’

Appeals at a Department of Veterans Affairs

field facility.

A hearing before the Board of

Veterans’ Appeals at a Department of

Veterans Affairs field facility is a

‘‘hearing on appeal.’’ Accordingly, there

is no right to such a hearing until a

Notice of Disagreement has been filed.

Any request for such a hearing filed

with a Notice of Disagreement, or filed

subsequent to the filing of a Notice of

Disagreement, will be accepted by the

agency of original jurisdiction. Requests

for such hearings filed before a Notice

of Disagreement has been filed, or after

the Board has entered a final decision in

the case on the issue (or issues)

appealed will be rejected, except for

requests for such hearings after a Notice

of Disagreement has been filed

appealing a denial of benefits in a

reopened claim which followed a prior

Board decision or after a motion for

reconsideration of a prior Board

decision has been granted.

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

33. In § 20.704, the section heading;

paragraphs (a), (c), (d), and (e); and the

authority citation are revised and

paragraph (f) is added to read as follows:

§ 20.704 Rule 704. Scheduling and notice

of hearings conducted by the Board of

Veterans’ Appeals at Department of

Veterans Affairs field facilities.

(a) General. Hearings are conducted

by a Member or Members of the Board

of Veterans’ Appeals during

prescheduled visits to Department of

Veterans Affairs facilities having

adequate physical resources and

personnel for the support of such

hearings. The hearings will be

scheduled in the order in which

requests for such hearings within that

area were received by the agency of

original jurisdiction, except as provided

in paragraph (f). Requests for such

hearings must be submitted to the

agency of original jurisdiction, in

writing, and should not be submitted

directly to the Board of Veterans’

Appeals.

* * * * *

(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

office of the official of the Department

of Veterans Affairs who signed the

notice of the original hearing date.

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: Director,

Administrative Service (014), Board of

Veterans’ Appeals, 810 Vermont

Avenue, NW., Washington, DC 20420.

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

office of the Department of Veterans

Affairs official who signed the notice of

the hearing date.

(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)

upon written motion of the appellant or

the representative showing that the

appellant is seriously ill or under severe

financial hardship. The motion must be

filed with the Board of Veterans’

Appeals, 810 Vermont Avenue, NW.,

Washington, DC 20420. The ruling on

the motion will be by the Member

assigned as the presiding Member for

the hearing.

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

(Approved by the Office of Management and

Budget under control number 2900–0085)

34. Section 20.705(b) and the

authority citation are revised to read as

follows:

§ 20.705 Rule 705. Where hearings are

conducted.

* * * * *

(b) At a Department of Veterans

Affairs facility having adequate physical

resources and personnel for the support

of such hearings.

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

§ 20.706 [Amended]

35. In § 20.706, the authority citation

is revised to read as follows:

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

36. Section 20.707 is revised to read

as follows:

§ 20.707 Rule 707. Designation of Member

or Members to conduct the hearing.

The Member or panel to whom a

proceeding is assigned under § 19.3 of

this part shall conduct any hearing

before the Board in connection with that

proceeding. Where a proceeding has

been assigned to a panel, the Chairman,
20452 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

or the Chairman’s designee, shall

designate one of the Members as the

presiding Member. The Member or

Members who conduct the hearing shall

participate in making the final

determination of the claim, subject to

the exception in § 19.11(c) of this part

(relating to reconsideration of a

decision).

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

37. Section 20.708 is revised to read

as follows:

§ 20.708 Rule 708. Prehearing conference.

An appellant’s authorized

representative may request a prehearing

conference with the presiding Member

of a hearing to clarify the issues to be

considered at a hearing on appeal,

obtain rulings on the admissibility of

evidence, develop stipulations of fact,

establish the length of argument which

will be permitted, or take other steps

which will make the hearing itself more

efficient and productive. With respect to

hearings to be held before the Board at

Washington, DC, arrangements for a

prehearing conference must be made

through: Director, Administrative

Service (014), Board of Veterans’

Appeals, 810 Vermont Avenue, NW.,

Washington, DC 20420. Requests for

prehearing conferences in cases

involving hearings to be held before the

Board at Department of Veterans Affairs

field facilities must be addressed to the

office of the Department of Veterans

Affairs official who signed the letter

giving notice of the time and place of

the hearing.

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

§ 20.709 [Amended]

38. Section 20.709 is amended by

revising the authority citation to read as

follows:

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

39. Section 20.710 is amended by

revising the authority citation to read as

follows:

§ 20.710 Rule 710. Witnesses at hearings.

* * * * *

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

40. Section 20.711 is amended by

revising paragraphs (e) and (h) and the

authority citation to read as follows:

§ 20.711 Rule 711. Subpoenas.

* * * * *

(e) Ruling on motion for subpoena.

Where the Chairman has assigned the

appeal to a Member or panel, the ruling

on the motion will be made by that

Member or panel. Where the appeal has

not been assigned, the Chairman will

assign the matter for the purpose of

ruling on the motion. Where the moving

party seeks production of documents or

other tangible evidence, the Member or

panel may condition the granting of the

motion upon the advancement by the

moving party of the reasonable cost of

producing the books, paper, documents,

or other tangible evidence requested.

* * * * *

(h) Motion to quash or modify

subpoena. If an individual served with

a subpoena considers the subpoena to

be unreasonable or oppressive, he or she

may move that the subpoena be quashed

or modified. Such motions must be in

writing and must explain why the

subpoena is unreasonable or oppressive

and what relief is sought. Such motions

must be filed with the Board not more

than 10 days following receipt of the

subpoena. Rulings on such motions will

be made by the Member or panel

authorizing the subpoena, who will

inform all interested parties of the

ruling in writing. The quashing of any

subpoena will be conditional upon the

return of the check for fees and mileage

to the party on whose behalf the

subpoena was issued.

(Authority: 38 U.S.C. 5711, 7102(a), 7107)

41. In § 20.714, paragraph (a)

introductory text is amended by revising

the first sentence; paragraph (a)(1) is

amended by removing ‘‘of the hearing

panel’’ in the second sentence, and by

removing ‘‘Chief, Hearing Section

(014B)’’ in the last sentence and adding,

in its place, ‘‘Director, Administrative

Service (014); and paragraph (a)(4)

introductory text and the authority

citation at the end of the section are

revised to read as follows:

§ 20.714 Rule 714. Record of hearing.

(a) Board of Veterans’ Appeals. A

hearing before a Member or panel of

Members of the Board, whether held in

Washington, DC, or at a Department of

Veterans Affairs field facility, will be

recorded on audio tape. * * *

* * * * *

(4) With respect to hearings

conducted by a Member or Members of

the Board at a Department of Veterans

Affairs field facility : * * *

* * * * *

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

42. In § 20.715 the last two sentences

and the authority citation are revised to

read as follows:

§ 20.715 Rule 715. Recording of hearing by

appellant or representative.

* * * In the case of hearings held

before the Board of Veterans’ Appeals in

Washington, DC, arrangements must be

made with the Director of the

Administrative Service (014), Board of

Veterans’ Appeals, 810 Vermont

Avenue, NW., Washington, DC 20420.

In the case of hearings held before the

Board at Department of Veterans Affairs

field facilities, arrangements must be

made through the office of the

Department of Veterans Affairs official

who signed the letter giving notification

of the time and place of the hearing.

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

43. In § 20.716 the last two sentences

and the authority citation are revised to

read as follows:

§ 20.716 Rule 716. Correction of hearing

transcripts.

* * * In the case of hearings held

before the Board of Veterans’ Appeals,

whether in Washington, DC, or in the

field, the motion must be filed with the

Director, Administrative Service (014),

Board of Veterans’ Appeals, 810

Vermont Avenue, NW., Washington, DC

20420. The ruling on the motion will be

made by the presiding Member of the

hearing.

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

44. Section 20.717, paragraph (c) is

amended by removing ‘‘Chief, Hearing

Section (0141F)’’ and adding, in its

place, ‘‘Director, Administrative Service

(014); and by revising paragraph (d) and

the authority citation to read as follows:

§ 20.717 Rule 717. Loss of hearing tapes

or transcripts—motion for new hearing.

* * * * *

(d) Ruling on motion for a new

hearing. The ruling on the motion for a

new hearing will be made by the

Member who presided over the hearing.

If the presiding Member is no longer

available, the ruling on the motion may

be made by the Member or Members to

whom the case has been assigned for a

determination. In cases in which a final

Board of Veterans’ Appeals decision has

already been promulgated with respect

to the appeal in question, the Chairman

will assign the matter in accordance

with § 19.3 of this title. Factors to be

considered in ruling on the motion

include, but will not be limited to, the

extent of the loss of the record in those

cases where only a portion of a hearing

tape is unintelligible or only a portion

of a transcript has been lost or

destroyed, and the extent and

reasonableness of any delay in moving

for a new hearing. If a new hearing is

granted in a case in which a final Board

of Veterans’ Appeals decision has

already been promulgated, a

supplemental decision will be issued.

(Authority: 38 U.S.C. 7102, 7105(a), 7107)
Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20453

Subpart J—Action by the Board

45. Section 20.900 is amended by

revising paragraph (b) and the authority

citation, and by adding a new paragraph

(d) to read as follows:

§ 20.900 Rule 900. Order of consideration

of appeals.

* * * * *

(b) Appeals considered in docket

order. Appeals are considered in the

order in which they are entered on the

docket, except as provided in

paragraphs (c) and (d).

* * * * *

(d) Consideration of appeals

remanded by the United States Court of

Veterans Appeals. A case remanded by

the United States Court of Veterans

Appeals for additional development or

other appropriate action will be treated

expeditiously by the Board without

regard to its place on the Board’s docket.

(Authority: 38 U.S.C. 7107, Pub. Law No.

103–446 § 302)

46. Section 20.901(e) is revised to

read as follows:

§ 20.901 Rule 901. Medical opinions and

opinions of the General Counsel.

* * * * *

(e) 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), 7104(c), 7109)

Subpart K—Reconsideration

47. Section 20.1003 is revised to read

as follows:

§ 20.1003 Rule 1003. Hearings on

reconsideration.

After a motion for reconsideration has

been allowed, a hearing will be granted

if an appellant requests a hearing before

the Board. The hearing will be held by

a Member or Members assigned to the

reconsideration panel. A hearing will

not normally be scheduled solely for the

purpose of receiving argument by a

representative. Such argument should

be submitted in the form of a written

brief. Oral argument may also be

submitted on audio cassette for

transcription for the record in

accordance with Rule 700(d)

(§ 20.700(d) of this part). Requests for

appearances by representatives alone to

personally present argument to a

Member or panel of 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.

(Authority: 38 U.S.C. 7102, 7103, 7105(a))

Subpart L—Finality

48. In section 20.1100(a), the last

sentence is amended by removing

‘‘Section’’ and adding, in its place,

‘‘Panel’’; and the first sentence is

revised to read as follows:

§ 20.1100 Rule 1100. Finality of decisions

of the Board.

(a) General. All decisions of the Board

will be stamped with the date of mailing

on the face of the decision. * * *

* * * * *

Subpart N—Miscellaneous

§ 20.1304 [Amended]

49. In § 20.1304 paragraph (b) is

amended by removing the next-to-thelast sentence reading ‘‘The ruling on the

motion will be by the Chairman.’’.

[FR Doc. 96–11279 Filed 5–6–96; 8:45 am]

BILLING CODE 8320–01–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[CA 095–0008a; FRL–5464–2]

Approval and Promulgation of

Implementation Plans; California State

Implementation Plan Revision, Santa

Barbara County Air Pollution Control

District

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is taking direct final

action on a revision to the California

State Implementation Plan (SIP). The

revision concerns a new rule from the

Santa Barbara County Air Pollution

Control District (SBCAPCD). This

approval action will incorporate this

rule into the federally approved SIP.

The intended effect of approving this

rule is to regulate emissions of oxides of

nitrogen (NOX), oxides of sulfur (SOX),

and volatile organic compounds (VOCs).

This rule controls NOX, SOX, and VOC

emissions from flare and thermal

oxidizer stacks at oil and gas production

industries. Thus, EPA is finalizing the

approval of this rule into the California

SIP under provisions of the Federal

Clean Air Act, as amended in 1990

(CAA or the Act) regarding EPA action

on SIP submittals.

DATES: This action is effective on July 8,

1996 unless adverse or critical

comments are received by June 6, 1996.

If the effective date is delayed, a timely

notice will be published in the Federal

Register.

ADDRESSES: Copies of the rule and EPA’s

evaluation report for the rule are

available for public inspection at EPA’s

Region IX office during normal business

hours. Copies of the submitted rule are

available for inspection at the following

locations:

Rulemaking Section (A–5–3), Air and

Toxics Division, U.S. Environmental

Protection Agency, Region IX, 75

Hawthorne Street, San Francisco, CA

94105

Environmental Protection Agency, Air

Docket (6102), 401 ‘‘M’’ Street, S.W.,

Washington, D.C. 20460

California Air Resources Board,

Stationary Source Division, Rule

Evaluation Section, 2020 ‘‘L’’ Street,

Sacramento, CA 95814

Santa Barbara County Air Pollution

Control District, 26 Casitilian Drive,

B–23, Goleta, CA 93117

FOR FURTHER INFORMATION CONTACT:

Christine Vineyard, Rulemaking Section

(A–5–3), Air and Toxics Division, U.S.

Environmental Protection Agency,

Region IX, 75 Hawthorne Street, San

Francisco, CA 94105, Telephone: (415)

744–1197.

SUPPLEMENTARY INFORMATION:

Applicability

The rule being approved into the

California SIP is SBCAPCD Rule 359,

Flares and Thermal Oxidizers. This rule

was submitted by the California Air

Resources Board (CARB) to EPA on July

13, 1994.

Background

Rule 359 was originally adopted as

part of SBCAPCD’s 1991 Air Quality

Attainment Plan in response to the

California Clean Air Act and is not

required by any specific provision of the

CAA. However, SBCAPCD Rule 359 is

consistent with the goals of the CAA

and EPA policy. In addition, Rule 359

furthers the goals of the Act by

strengthening the SIP. Section 110(a) of

the CAA contains general requirements

for states to submit enforceable

emissions limitations and other control

measures as may be necessary or

appropriate to achieve the goals of the

Act. Rule 359 meets these requirements

by controlling NOX, SOX, and VOC

emissions from flare and thermal

oxidizer stacks at oil and gas production

facilities.

The State of California submitted

many rules for incorporation into its SIP

on July 13, 1994, including the rule

being acted on in this notice. This

notice addresses EPA’s direct-final

action for SBCAPCD Rule 359, Flares