216
clusions, and the reasons or bases for those findings
and conclusions, in support of the dismissal.
‘‘(2) Issue an order remanding the case, in
whole or in part, to the agency of original jurisdic-
tion for such additional development as the Chair-
man, other member, or panel of members may con-
sider necessary for proper disposition of the case.
‘‘(3) Render a written decision with respect to
any issues not dismissed or remanded, which deci-
sion shall constitute the Board’s final disposition of
the issues so decided. Such decisions shall be based
on the entire record in the proceeding, upon consid-
eration of all evidence and material of record, and
upon applicable provisions of law and regulation.
The Board shall be bound in its decisions, including
allowances made under the provisions of subsection
(d) of this section, by the regulations of the Depart-
ment, the instructions of the Secretary, and the
precedent opinions of the chief legal officer of the
Department. Each decision of a Board member or a
panel of members shall include—
‘‘(A) a written statement of the Board’s
findings and conclusions, and the reasons or
bases for those findings and conclusions, on all
217
material issues of fact and law presented on the
record; and
‘‘(B) an order granting appropriate relief
or denying relief.
Decisions by a panel of Board members, except as other-
wise provided in subsection (b), shall be made by a major-
ity of the members of the panel.’’.
(b) RECONSIDERATION.—Section 7103(b) is amend-
ed to read as follows:
‘‘(b) The decision of a Board member or a panel of
members is final, unless the Chairman orders reconsider-
ation of the case, and a claim disallowed by the Board
may not thereafter be reopened or allowed except as pro-
vided in section 5108 of this title and subsection (d) of
this section. If the Chairman orders reconsideration in a
case, the case shall be considered upon reconsideration by
a panel of members other than the Chairman if one mem-
ber originally decided the case or by an expanded panel
of members other than the Chairman if a panel originally
decided the case. When a panel considers a case after a
motion for reconsideration has been granted, the decision
of a majority of the panel members shall constitute the
final decision of the Board, except as provided in sub-
section (d). If the expanded panel cannot reach a majority
decision, the Chairman may either assign additional mem-
218
bers other than the Chairman to the panel or vote with
the members of the expanded panel so as to create a ma-
jority decision. Either the expanded panel majority or the
majority made with the vote of the Chairman shall con-
stitute the final decision of the Board, except as provided
in subsection (d).’’.
(c) ADMINISTRATIVE ALLOWANCE; NOTICE OF DE-
TERMINATION.—Section 7103 is further amended by add-
ing at the end of the following:
‘‘(d) Whenever a Board member other than the
Chairman or Vice Chairman is of the opinion that a prior,
otherwise final denial of a claim should be revised or
amended to allow the claim in whole or in part, based on
a difference of opinion as to how the evidence should be
evaluated rather than on any error in the prior decision,
the Board member shall recommend such allowance to the
Chairman or Vice Chairman. The Chairman or Vice
Chairman, whether upon the recommendation of any other
Board member or upon the Chairman’s or Vice Chair-
man’s own motion, if of the opinion that a prior, otherwise
final denial of a claim should be revised or amended to
allow the claim in whole or in part, based on a difference
of opinion as to how the evidence should be evaluated rath-
er than on any error in the prior decision, shall approve
the award of any benefit, or any increase therein, on the
219
basis of such difference of opinion. The discretionary exer-
cise of the authority provided to the Chairman and Vice
Chairman under this subsection shall not be reviewed by
any other official or by any court, whether by an action
in the nature of mandamus or otherwise.
‘‘(e) After reaching a determination under any of the
provisions of this section, the Board shall promptly mail
a copy of its written decision to the appellant and the ap-
pellant’s authorized representative (if any) at the last
known address of the appellant and at the last known ad-
dress of such representative (if any), respectively.’’.
SEC. 12305. JURISDICTION OF THE BOARD.
Section 7104 is amended by—
(a) striking the subsection designation ‘‘(a)’’;
(b) striking ‘‘211(a)’’ and inserting ‘‘511(a)’’;
and
(c) striking all after ‘‘made by the Board.’’.
SEC. 12306. APPELLATE PROCEDURE.
Section 7105(d) is amended by striking paragraph
(5).
SEC. 12307. MEDICAL OPINIONS.
Section 7109 is amended to read as follows:
‘‘§ 7109. Medical opinions
‘‘(a) A Board member or a panel of members before
whom a matter which involves a medical question is pend-
220
ing may, in the discretion of the member or panel, request
an opinion on that medical question from—
‘‘(1) an employee of the Board who is licensed
to practice medicine in any State;
‘‘(2) an employee of the Veterans Health Ad-
ministration who is licensed to practice medicine in
any State and who has been designated by the
Under Secretary for Health to provide such an opin-
ion; or
‘‘(3) an employee of any Federal department or
agency who is licensed to practice medicine in any
State and who has been designated, in accordance
with arrangements made by the Secretary with the
head of any such Federal department or agency, to
provide such an opinion.
‘‘(b) When, in the judgment of a Board member or
a panel of members assigned a matter for determination
in accordance with section 7102 of this title, the medical
complexity or controversy involved in that matter warrants
expert medical opinion in addition to, or in lieu of, that
available within the Department or within another Federal
department or agency, the Board may secure an advisory
medical opinion from one or more independent medical ex-
perts who are not employees of the Department or of an-
other Federal department or agency. The Secretary shall
221
make necessary arrangements with recognized medical
schools, universities, or clinics to furnish such advisory
medical opinions at the request of the Chairman. Any such
arrangement shall provide that the actual selection of the
expert or experts to give the advisory opinion in an individ-
ual case shall be made by an appropriate official of such
institution. For purposes of this section, an employee of
a medical school, university, or clinic shall not be consid-
ered an employee of the Department or another Federal
department or agency just because the medical school, uni-
versity, or clinic receives grants from, or provides contract
services to, the Department or another Federal depart-
ment or agency.
‘‘(c) Any opinion provided under this section shall be
in writing and made a part of the record. The Board shall
notify a claimant that an advisory medical opinion has
been requested under this section with respect to the
claimant’s case and shall mail to the claimant and the
claimant’s authorized representative (if any) at the last
known address of the claimant and at the last known ad-
dress of such representative (if any) a copy of such opinion
when the Board receives it. An opportunity for response
by or on behalf of the claimant shall be provided following
the mailing of the copy (or copies) of such advisory medi-
cal opinion.’’.
222
SEC. 12308. HEARINGS.
Section 7110 is amended to read as follows:
‘‘§ 7110. Hearings
‘‘(a) The Board shall decide any appeal only after af-
fording the appellant an opportunity for a hearing.
‘‘(b) A hearing docket shall be maintained and formal
recorded hearings shall be held by such member or mem-
bers of the Board as the Chairman may designate. Such
member or members designated by the Chairman to con-
duct the hearing will participate in making the final deter-
mination in the claim.
‘‘(c) An appellant may request a hearing before the
Board at either its principal location or a regional office
of the Department. Any hearing held at a regional office
of the Department shall be scheduled for hearing in the
order in which the requests for hearing in that area are
received by the Department at the place specified by the
Department for the filing of requests for such hearings.
‘‘(d) At the request of the Chairman, the Secretary
may provide suitable facilities and equipment to the Board
or other components of the Department to enable an ap-
pellant located at a facility within the area served by a
regional office to participate, through voice transmission,
or picture and voice transmission, by electronic or other
means, in a hearing with a Board member or members
sitting at the Board’s principal location. When such facili-