Board of Veterans' Appeals: Remand or Referral for Further Action; Notification of Evidence Secured by the Board and Opportunity for Response, 17544-17548 [2011-7395]
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Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Rules and Regulations
Civil Justice Reform
This rule meets applicable standards
in sections 3(a) and 3(b)(2) of Executive
Order 12988, Civil Justice Reform, to
minimize litigation, eliminate
ambiguity, and reduce burden.
Protection of Children
We have analyzed this rule under
Executive Order 13045, Protection of
Children from Environmental Health
Risks and Safety Risks. This rule is not
an economically significant rule and
would not create an environmental risk
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disproportionately affect children.
Indian Tribal Governments
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13175, Consultation and Coordination
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because it does not have a substantial
direct effect on one or more Indian
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Energy Effects
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Significantly Affect Energy Supply,
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determined that it is not a ‘‘significant
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it is not a ‘‘significant regulatory action’’
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likely to have a significant adverse effect
on the supply, distribution, or use of
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has not designated it as a significant
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Technical Standards
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This rule does not use technical
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Environment
List of Subjects in 33 CFR Part 117
Bridges.
For the reasons discussed in the
preamble, the Coast Guard amends 33
CFR part 117 as follows:
PART 117—DRAWBRIDGE
OPERATION REGULATIONS
1. The authority citation for part 117
continues to read as follows:
■
Authority: 33 U.S.C. 499; 33 CFR 1.05–1;
Department of Homeland Security Delegation
No. 0170.1.
2. Add § 117.664 to read as follows:
§ 117.664 Rainy River, Rainy Lake and
their tributaries.
The draw of the Canadian National
Bridge, mile 85.0, at Rainer, shall open
on signal; except that, from October 16
to April 30, the draw shall open on
signal if at least 12-hours advance notice
is provided. The commercial phone
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plainly visible to vessel operators
approaching the up or downstream side
of the bridge. The owners of the bridge
shall maintain clearance gauges in
accordance with 33 CFR 118.160 of this
chapter.
Dated: March 21, 2011.
M.N. Parks,
Rear Admiral, U.S. Coast Guard, Commander,
Ninth Coast Guard District.
[FR Doc. 2011–7466 Filed 3–29–11; 8:45 am]
BILLING CODE 9110–04–P
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38 CFR Parts 19 and 20
RIN 2900–AN34
We have analyzed this rule under
Department of Homeland Security
Management Directive 023–01, and
Commandant Instruction M16475.lD,
which guides the Coast Guard in
complying with the National
Environmental Policy Act of 1969
(NEPA) (42 U.S.C. 4321–4370f), and
have concluded that this action is one
of a category of actions which do not
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significant effect on the human
environment. This rule is categorically
excluded under figure 2–1, paragraph
(32)(e), of the Instruction.
Under figure 2–1, paragraph (32)(e), of
the Instruction, an environmental
analysis checklist and a categorical
exclusion determination are not
required for this rule.
■
DEPARTMENT OF VETERANS
AFFAIRS
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Board of Veterans’ Appeals: Remand
or Referral for Further Action;
Notification of Evidence Secured by
the Board and Opportunity for
Response
Department of Veterans Affairs.
Final rule.
AGENCY:
ACTION:
The Department of Veterans
Affairs (VA) is amending the Appeals
Regulations of the Board of Veterans’
Appeals (Board) to articulate the Board’s
practice of referring unadjudicated
claims to the Agency of Original
Jurisdiction (AOJ) for appropriate
action, and to describe when it is
appropriate for the Board to remand a
claim to the AOJ for the limited purpose
of issuing a Statement of the Case (SOC).
We are also amending the Board’s Rules
of Practice to outline the procedures the
Board must follow when supplementing
the record with a recognized medical
treatise, and to remove the notice
procedures the Board must currently
follow when considering law not
considered by the AOJ. The purpose of
these amendments is to codify existing
practices derived from caselaw, enhance
efficiency, and provide guidance and
clarification.
SUMMARY:
Effective Date: The final rule is
effective April 29, 2011.
FOR FURTHER INFORMATION CONTACT:
Laura H. Eskenazi, Principal Deputy
Vice Chairman, Board of Veterans’
Appeals (012), Department of Veterans
Affairs, 810 Vermont Avenue, NW.,
Washington, DC 20420, (202) 461–8078.
(This is not a toll-free number.)
SUPPLEMENTARY INFORMATION: On
December 18, 2009, VA published in the
Federal Register (74 FR 67149) a Notice
of Proposed Rulemaking (NPRM) that
proposed to amend 38 CFR 19.9 to
articulate the Board’s practice of
referring unadjudicated claims to the
AOJ for appropriate action and to define
when the Board can remand a claim to
the AOJ for the limited purpose of
issuing an SOC. The NPRM also
proposed to amend 38 CFR 20.903 to
codify the notice procedures the Board
must follow when supplementing the
record with a recognized medical
treatise, and to eliminate the notice
procedures the Board must currently
follow when considering law not
previously considered by the AOJ.
Interested persons were invited to
DATES:
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submit written comments on or before
February 16, 2010.
We received two comments on the
proposed rule. One commenter was
fully supportive of all aspects of the
proposal. The second commenter
expressed concerns with various parts
of the NPRM, the specifics of which will
be discussed in greater detail below.
Based on the rationale set forth in this
document and in the NPRM, VA adopts
the proposed rule as final with one
minor clarification.
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A. Referral of Unadjudicated Claims
We proposed to amend 38 CFR 19.9(b)
to articulate the Board’s practice of
referring to the AOJ for appropriate
action unadjudicated claims that have
been reasonably raised by the record,
except for claims over which the Board
has original jurisdiction. One
commenter voiced support for the
referral practice in general, but
expressed concern that the Board will
make ‘‘many unnecessary, unjustified
and time-consuming referrals’’ unless
Board attorneys and Veterans Law
Judges are provided with written
guidance and training on what
constitutes a claim and when it is
appropriate to refer a claim to the AOJ.
The commenter specifically suggested
that the Board should provide training
on the difference between separate
claims and separate theories of
entitlement.
As explained in the NPRM, the
purpose of this rulemaking is to provide
guidance as to what action the Board
must take when it discovers an
unadjudicated claim in the record.
Questions regarding the Board’s training
practices and when filings must be
interpreted as raising a new claim are
outside the scope of this rulemaking.
We agree with the commenter that the
training of Board employees is
extremely important. The Board has an
established training office that organizes
regular training sessions for its
employees on a wide range of topics in
the constantly-evolving field of
veterans’ benefits law. The Board fully
intends to continue training its
employees on all aspects of veterans’
law, including matters addressed in this
rulemaking. We also emphasize that the
Board has referred unadjudicated claims
for many years, and implementation of
this final rule will not result in any
deviation from current Board practice.
The final rule we are adopting by this
rulemaking merely codifies the Board’s
referral practice in regulation. We
therefore make no changes to the
proposed rule based on this comment.
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B. Remand for Issuance of an SOC
Proposed 38 CFR 19.9(c) stated that in
situations where a claimant timely filed
a Notice of Disagreement (NOD) with a
determination of the AOJ, but the record
does not reflect that the AOJ
subsequently granted the claim in full or
furnished the claimant with an SOC, the
Board shall remand the claim to the AOJ
with instructions to prepare and issue
an SOC. See generally Manlincon v.
West, 12 Vet. App. 238 (1999). While
agreeing with the substance of the
proposed regulatory amendment, one
commenter expressed concern that ‘‘the
statement at 74 FR 67151 [of the
Preamble] that the claimant must file
another timely Substantive Appeal to
perfect the appeal is contrary to law’’
(emphasis added). The commenter cited
to Hamilton v. Brown, 39 F.3d 1574,
1585 (Fed. Cir. 1994), as support for the
proposition that a claim that has been
remanded to the AOJ will be
‘‘automatically returned to the Board for
further processing if full relief is not
awarded by the [AOJ] on remand.’’ See
Hamilton, 39 F.3d at 1584–85 (citing 38
CFR 19.182 (1988) (now codified in 38
CFR 19.9, 19.31, and 19.38)).
We respectfully disagree with the
commenter as the Preamble does not
state that a claimant must file another
Substantive Appeal after issuance of an
SOC. The portion of the Preamble
referenced by the commenter states the
following: ‘‘The appeal initiated by the
filing of the NOD will be subsequently
returned to the Board only if, after the
AOJ issues the SOC, the appellant files
a timely Substantive Appeal that
perfects the appeal to the Board.’’
NPRM, 74 FR at 67151. This sentence
explains that the situation addressed in
proposed § 19.9(c) is one where a
claimant has not had an opportunity to
file a Substantive Appeal on the issue
being remanded because the AOJ has
not yet issued an SOC. Therefore, the
commenter’s characterization of
proposed § 19.9(c) as requiring the filing
of a second Substantive Appeal is
simply incorrect. Rather, the law is well
settled that an appeal to the Board
consists of a timely filed NOD in writing
and, after an SOC has been furnished,
the submission of a timely filed
Substantive Appeal. 38 U.S.C. 7105(a);
38 CFR 20.200. Accordingly, a matter
that is remanded pursuant to proposed
§ 19.9(c) for issuance of an SOC may be
returned to the Board only if a timely
Substantive Appeal is filed, following
the issuance of the SOC, for purposes of
perfecting the appeal of the matter to the
Board.
The commenter’s reliance on
Hamilton is also misplaced. Unlike
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proposed § 19.9(c), Hamilton did not
address remand by the Board for the
limited purpose of issuing an SOC.
Hamilton instead addressed a remand
for evidentiary development in an
appeal that had already been perfected
by the timely filing of a Substantive
Appeal. Hamilton, 39 F.3d at 1577–78.
In Hamilton, the United States Court of
Appeals for the Federal Circuit (Federal
Circuit) specifically discussed whether a
statement filed in response to a
Supplemental SOC (SSOC) could be
considered an NOD. Hamilton, 39 F.3d
at 1584–85. The Federal Circuit
concluded that, since an SSOC was not
an initial determination made by the
AOJ, such a statement could not be
considered an NOD, even if it raised
new issues in connection with the
claim. Id. at 1584. The Federal Circuit
did not discuss whether a claimant
needed to submit multiple Substantive
Appeals; it addressed whether multiple
NODs could be filed in one claim. Thus,
the situation in Hamilton was markedly
different from that addressed by
proposed § 19.9(c), which concerns the
Board’s remand of a claim to the AOJ for
issuance of an SOC so an appellant can
have an opportunity to file a single
Substantive Appeal necessary to
complete the appeal to the Board. We
accordingly make no change to the
proposed rule based on this comment.
We are, however, making one minor
revision to proposed § 19.9(c). In the
NPRM, we proposed the following rule
language: ‘‘In cases before the Board in
which a claimant has timely filed a
Notice of Disagreement with a
determination of the agency of original
jurisdiction on a claim, but the record
does not reflect that the agency of
original jurisdiction subsequently
granted the claim in full or furnished
the claimant with a Statement of the
Case, the Board shall remand the claim
to the agency of original jurisdiction
with instructions to prepare and issue a
Statement of the Case * * * .’’ 74 FR at
67154. Upon further consideration of
this language, we have determined that
the use of the disjunctive ‘‘or’’ between
the phrase ‘‘but the record does not
reflect that the [AOJ] subsequently
granted the claim in full’’ and the phrase
‘‘furnished the claimant with a[n SOC]’’
could cause confusion as to the possible
situations under which the Board must
remand a case pursuant to § 19.9(c).
Taken literally, the use of the
disjunctive ‘‘or’’ could lead to the
misinterpretation that the Board is
required to remand a case in situations
where the AOJ has not granted the claim
in full following the filing of an NOD,
but where an SOC has already been
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issued. This outcome was not our intent
in issuing proposed § 19.9(c). For
obvious reasons, if an SOC has already
been issued on a claim subsequent to
the NOD, the Board would not be
required to remand for issuance of
another SOC. To avoid this incorrect
construction, we have slightly reworded
§ 19.9(c) and replaced the disjunctive
‘‘or’’ with the conjunctive ‘‘and’’ to
clarify that the Board will only be
required to remand a claim to the AOJ
for issuance of an SOC following the
timely filing of an NOD when: (1) the
AOJ has not subsequently granted the
claim in full, and (2) the AOJ has not
furnished the claimant with an SOC. We
believe this minor revision more clearly
describes when the Board will remand
for issuance of an SOC pursuant to
§ 19.9(c).
C. Thurber Procedures
We proposed to amend 38 CFR
20.903(b) to clarify the notice
procedures the Board must follow when
it supplements the record with a
recognized medical treatise. One
commenter objected to the proposed
language which stated that, as part of
the notice procedures, the Board will
inform appellants that it ‘‘will consider
such recognized medical treatise in the
adjudication of the appeal.’’ The
commenter believed that this language
does not provide a claimant and his or
her representative with the requisite
notice regarding the reliance proposed
to be placed on the treatise, and thus,
does not comply with the notice
requirements outlined in Thurber v.
Brown, 5 Vet. App. 119 (1993).
We respectfully disagree with this
comment. As explained in the NPRM,
we chose not to use the term ‘‘reliance’’
in § 20.903(b) because such language
could be misconstrued to suggest that
the Board has already reached a
preliminary decision on a claim. NPRM,
74 FR at 67152. We do not interpret
Thurber as requiring the Board to preadjudicate a claim before following the
requisite notice procedures. Id. This
interpretation is in accordance with
other areas of VA adjudicatory
procedure that do not require the
Secretary to rule on the probative value
of evidence prior to reaching a decision
on the merits. For example, the United
States Court of Appeals for Veterans
Claims (Veterans Court) has interpreted
VA notice requirements under 38 U.S.C.
5103(a) as not imposing upon the
Secretary a ‘‘legal obligation to rule on
the probative value of information and
evidence presented in connection with
a claim prior to rendering a decision on
the merits of the claim itself.’’ Locklear
v. Nicholson, 20 Vet. App. 410, 415–16
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(2006) (noting that the VA adjudication
process is ‘‘longitudinal and sequential’’
and that the gathering of information
and evidence is meant to precede VA
analysis and adjudication). In addition,
the Federal Circuit has held that the
notice letter provided under section
5103(a) does not need to ‘‘describe the
VA’s evaluation of the veteran’s
particular claim.’’ Wilson v. Mansfield,
506 F.3d 1055, 1062 (Fed. Cir. 2007).
Moreover, § 20.903(a) requires the
Board to provide an appellant with a
copy of a medical opinion obtained
pursuant to § 20.901 and an opportunity
to respond to the opinion. This
provision is substantially similar to
proposed § 20.903(b) in that it provides
a claimant with notice and an
opportunity to respond, but does not
require the Board to pre-adjudicate an
appellant’s claim when providing this
notice. In Wilson, the Federal Circuit
noted that when § 20.903(a) was
promulgated the Secretary rejected a
proposal to provide the claimant with ‘‘a
form of predecisional adjudication.’’
Wilson, 506 F.3d at 1061 n.3 (citing 67
FR 3099, 3100 (Jan. 23, 2002)). The
Federal Circuit explained that notice
under § 20.903(a) is not meant to inform
an appellant of how the Board intends
to weigh the evidence or analyze the
claim. Id. The same logic applies to
proposed § 20.903(b), as it is also not
meant to provide an appellant with a
pre-adjudication of the merits of a
claim. The purpose of the notice
procedures outlined in Thurber is to
elicit additional evidence and argument
that will more fully inform the Board’s
eventual decision. We believe the
language of proposed § 20.903(b) serves
this purpose, while at the same time
avoiding any implication that the Board
has reached a preliminary decision on
the appeal. Therefore, we make no
changes to the proposed rule based on
this comment.
D. Board Consideration of Law Not
Already Considered by the AOJ
The NPRM proposed to completely
remove the provisions of current 38 CFR
20.903(b) from the Board’s Rules of
Practice. Current § 20.903(b) requires
that if the Board intends to consider law
not already considered by the AOJ, and
such consideration could result in
denial of the appeal, the Board must
notify the appellant and his or her
representative of its intent to do so,
provide a copy or summary of the law
to be considered, and allow 60 days for
a response. One commenter stated a
belief that it is ‘‘ill conceived’’ to remove
this provision. While the commenter
acknowledged that the Board as an
appellate body can consider law not
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previously considered by the AOJ, the
commenter believed that the same due
process considerations underlying the
Thurber notice requirements apply.
We reject this comment for the
following reasons. The situation set out
in Thurber is fundamentally different
than when VA relies on a provision of
law not previously considered by the
AOJ. Thurber specifically addresses
whether an appellant is entitled to
receive notice and an opportunity to
respond before the Board considers a
medical treatise in making a decision.
Thurber, 5 Vet. App. at 120. The
appellant would not be aware of the
content of a medical treatise relied upon
unless the Board provided the appellant
with notice of its provisions. In contrast,
statutes, regulations, and case law are
all matters of public record. The United
States Supreme Court has held that
everyone dealing with the Government
is charged with knowledge of federal
statutes and lawfully promulgated
agency regulations. Fed. Crop Ins. Corp.
v. Merrill, 332 U.S. 380, 384–85 (1947);
see Morris v. Derwinski, 1 Vet. App. 260,
265 (1991) (applying Fed. Crop Ins.
Corp. in the context of VA regulations);
Velez v. West, 11 Vet. App. 148, 156
(1998) (same); see also ATC Petroleum,
Inc. v. Sanders, 860 F.2d 1104, 1111–12
(DC Cir. 1988) (noting that ‘‘parties
dealing with the government are
expected to know the law’’ and that
‘‘there is no grave injustice in holding
parties to a reasonable knowledge of the
law’’ (internal quotation marks
omitted)). Information about governing
law, including relevant case law, is
available to the public without the
Board providing the notice required by
current § 20.903(b).
As explained in the NPRM, in
Disabled American Veterans v.
Secretary of Veterans Affairs, 327 F.3d
1339 (Fed. Cir. 2003), the Federal
Circuit considered a challenge to the
validity of § 19.9(b)(2), which permits
the Board to consider law not
considered by the AOJ in the first
instance. Id. at 1349. The Federal
Circuit deferred to VA’s interpretation
that the ‘‘Board’s status as an appellate
body does not bar it from considering
law not considered by the AOJ,’’ and
held that in considering ‘‘whether the
proper law was applied by the AOJ in
a particular claim, the Board inherently
provides legal questions ‘one review on
appeal to the Secretary’ as required by
[38 U.S.C.] 7104(a).’’ Id. The Federal
Circuit’s holding was not predicated on
the Board’s adherence to the notice
provisions outlined in current
§ 20.903(b). Id.
Several statutory provisions also
contemplate the Board’s consideration
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of all applicable law, whether or not
such law has been considered by the
AOJ and regardless of whether the
notice provisions of current § 20.903(b)
have been satisfied. Section 7104(a)
requires that ‘‘[d]ecisions of the Board
shall be based * * * upon
consideration of all * * * applicable
provisions of law and regulation.’’
Section 7104(c) provides that the ‘‘Board
shall be bound in its decisions by the
regulations of the Department,
instructions of the Secretary, and the
precedent opinions of the chief legal
officer of the Department.’’ Moreover, 38
U.S.C. 7104(d)(1) requires that each
Board decision include ‘‘a written
statement of the Board’s findings and
conclusions, and the reasons or bases
for those findings and conclusions, on
all material issues of fact and law
presented on the record’’ (emphasis
added). None of these provisions is
conditioned on the Board’s following
notice procedures similar to those
currently outlined in 38 CFR 20.903(b).
Removing current § 20.903(b) is
consistent with the jurisprudence of
both the Veterans Court and the Federal
Circuit, and more accurately depicts the
Board’s statutory obligation to consider
all applicable provisions of law and
regulation. 38 U.S.C. 7104. We therefore
make no changes to the proposed rule
based on the commenter’s suggestion.
Paperwork Reduction Act
This document contains no provisions
constituting a collection of information
under the Paperwork Reduction Act (44
U.S.C. 3501–3521).
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Regulatory Flexibility Act
The Secretary hereby certifies that
this regulatory amendment will not
have a significant economic impact on
a substantial number of small entities as
they are defined in the Regulatory
Flexibility Act, 5 U.S.C. 601–612. These
amendments would not directly affect
any small entities. Only VA
beneficiaries and their survivors could
be directly affected. Therefore, pursuant
to 5 U.S.C. 605(b), these amendments
are exempt from the initial and final
regulatory flexibility analysis
requirements of sections 603 and 604.
Executive Order 12866—Regulatory
Planning and Review
Executive Order 12866 directs
agencies to assess all costs and benefits
of available regulatory alternatives and,
when regulation is necessary, to select
regulatory approaches that maximize
net benefits (including potential
economic, environmental, public health
and safety, and other advantages;
distributive impacts; and equity). The
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Order classifies a rule as a significant
regulatory action requiring review by
the Office of Management and Budget if
it meets any one of a number of
specified conditions, including: having
an annual effect on the economy of $100
million or more, creating a serious
inconsistency or interfering with an
action of another agency, materially
altering the budgetary impact of
entitlements or the rights of entitlement
recipients, or raising novel legal or
policy issues. VA has examined the
economic, legal, and policy implications
of this final rule and has concluded that
it is not a significant regulatory action
under Executive Order 12866 because it
primarily codifies longstanding VA
practice and already existing law, does
not raise any novel legal or policy
issues, and will have little to no effect
on the economy.
Unfunded Mandates
The Unfunded Mandates Reform Act
of 1995 requires, at 2 U.S.C. 1532, that
agencies prepare an assessment of
anticipated costs and benefits before
issuing any rule that may result in an
expenditure by State, local, and tribal
governments, in the aggregate, or by the
private sector of $100 million or more
(adjusted annually for inflation) in any
given year. This rule would have no
such effect on State, local, and tribal
governments, or on the private sector.
Catalog of Federal Domestic Assistance
Numbers and Titles
The Catalog of Federal Domestic
Assistance program numbers and titles
for this proposal are 64.100,
Automobiles and Adaptive Equipment
for Certain Disabled Veterans and
Members of the Armed Forces; 64.101,
Burial Expenses Allowance for
Veterans; 64.102, Compensation for
Service-Connected Deaths for Veterans’
Dependents; 64.103, Life Insurance for
Veterans; 64.104, Pension for NonService-Connected Disability for
Veterans; 64.105, Pension to Veterans
Surviving Spouses, and Children;
64.106, Specially Adapted Housing for
Disabled Veterans; 64.109, Veterans
Compensation for Service-Connected
Disability; 64.110, Veterans Dependency
and Indemnity Compensation for
Service-Connected Death; 64.114,
Veterans Housing-Guaranteed and
Insured Loans; 64.115, Veterans
Information and Assistance;
64.116,Vocational Rehabilitation for
Disabled Veterans; 64.117, Survivors
and Dependents Educational Assistance;
64.118, Veterans Housing-Direct Loans
for Certain Disabled Veterans; 64.119,
Veterans Housing-Manufactured Home
Loans; 64.120, Post-Vietnam Era
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17547
Veterans’ Educational Assistance;
64.124, All-Volunteer Force Educational
Assistance; 64.125, Vocational and
Educational Counseling for
Servicemembers and Veterans; 64.126,
Native American Veteran Direct Loan
Program; 64.127, Monthly Allowance
for Children of Vietnam Veterans Born
with Spina Bifida; and 64.128,
Vocational Training and Rehabilitation
for Vietnam Veterans’ Children with
Spina Bifida or Other Covered Birth
Defects.
Signing Authority
The Secretary of Veterans Affairs, or
designee, approved this document and
authorized the undersigned to sign and
submit the document to the Office of the
Federal Register for publication
electronically as an official document of
the Department of Veterans Affairs. John
R. Gingrich, Chief of Staff, approved this
document on March 18, 2011 for
publication.
List of Subjects in 38 CFR Parts 19 and
20
Administrative practice and
procedure, Claims, Veterans.
Dated: March 24, 2011.
Robert C. McFetridge,
Director, Regulations Policy and
Management, Department of Veterans Affairs.
For the reasons set forth in the
Preamble to this final rule, VA amends
38 CFR parts 19 and 20 as follows:
PART 19—BOARD OF VETERANS’
APPEALS: APPEALS REGULATIONS
1. The authority citation for part 19
continues to read as follows:
■
Authority: 38 U.S.C. 501(a), unless
otherwise noted.
Subpart A—Operation of the Board of
Veterans’ Appeals
2. Amend § 19.9 by:
a. Revising the section heading and
paragraph (a) heading.
■ b. Revising paragraphs (b) and (c).
■ c. Adding paragraph (d).
■ d. Revising the authority citation at
the end of the section.
The revisions and addition read as
follows:
■
■
§ 19.9 Remand or referral for further
action.
(a) Remand . * * *
(b) Referral. The Board shall refer to
the agency of original jurisdiction for
appropriate consideration and handling
in the first instance all claims
reasonably raised by the record that
have not been initially adjudicated by
the agency of original jurisdiction,
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except for claims over which the Board
has original jurisdiction.
(c) Remand for a Statement of the
Case. In cases before the Board in which
a claimant has timely filed a Notice of
Disagreement with a determination of
the agency of original jurisdiction on a
claim, but the record reflects that the
agency of original jurisdiction has not
subsequently granted the claim in full
and has not furnished the claimant with
a Statement of the Case, the Board shall
remand the claim to the agency of
original jurisdiction with instructions to
prepare and issue a Statement of the
Case in accordance with the provisions
of subpart B of this part. A remand for
a Statement of the Case is not required
if the claimant, consistent with the
withdrawal requirements of § 20.204 of
this chapter, withdraws the Notice of
Disagreement.
(d) Exceptions. A remand or referral
to the agency of original jurisdiction is
not necessary for any of the following
purposes:
(1) Clarifying a procedural matter
before the Board, including the
appellant’s choice of representative
before the Board, the issues on appeal,
or requests for a hearing before the
Board;
(2) Considering law not already
considered by the agency of original
jurisdiction, including, but not limited
to, statutes, regulations, and court
decisions;
(3) Reviewing additional evidence
received by the Board, if, pursuant to
§ 20.1304(c) of this chapter, the
appellant or the appellant’s
representative waives the right to initial
consideration by the agency of original
jurisdiction, or if the Board determines
that the benefit or benefits to which the
evidence relates may be fully allowed
on appeal;
(4) Requesting an opinion under
§ 20.901 of this chapter;
(5) Supplementing the record with a
recognized medical treatise; or
(6) Considering a matter over which
the Board has original jurisdiction.
(Authority: 38 U.S.C. 7102, 7103(c), 7104(a),
7105).
PART 20—BOARD OF VETERANS’
APPEALS: RULES OF PRACTICE
The revisions read as follows:
§ 20.903 Rule 903. Notification of evidence
to be considered by the Board and
opportunity for response.
*
*
*
*
*
(b) If the Board supplements the
record with a recognized medical
treatise—(1) General. If, pursuant to
§ 19.9(d)(5) of this chapter, the Board
supplements the record with a
recognized medical treatise, the Board
will notify the appellant and his or her
representative, if any, that the Board
will consider such recognized medical
treatise in the adjudication of the
appeal. The notice from the Board will
contain a copy of the relevant portions
of the recognized medical treatise. The
appellant will be given 60 days after the
date of the notice described in this
section to file a response, which may
include the submission of relevant
evidence or argument. The date the
Board gives the notice will be presumed
to be the same as the date of the notice
letter for purposes of determining
whether a response was timely filed.
(2) Exception. The notice described in
paragraph (b)(1) of this section is not
required if the Board uses a recognized
medical treatise or medical dictionary
for the limited purpose of defining a
medical term and that definition is not
material to the Board’s disposition of
the appeal.
5. In § 20.1304, revise paragraph (b)(2)
to read as follows:
■
§ 20.1304 Rule 1304. Request for change
in representation, request for personal
hearing, or submission of additional
evidence following certification of an appeal
to the Board of Veterans’ Appeals.
*
*
*
*
*
(b) * * *
(2) Exception. The motion described
in paragraph (b)(1) of this section is not
required to submit evidence in response
to a notice described in § 20.903 of this
chapter.
*
*
*
*
*
[FR Doc. 2011–7395 Filed 3–29–11; 8:45 am]
BILLING CODE 8320–01–P
3. The authority citation for part 20
continues to read as follows:
WReier-Aviles on DSKGBLS3C1PROD with RULES
■
Authority: 38 U.S.C. 501(a) and as noted
in specific sections.
Subpart J—Action by the Board
■
■
■
4. Amend § 20.903 by:
a. Revising the section heading.
b. Revising paragraph (b).
VerDate Mar<15>2010
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 51 and 52
[EPA–HQ–OAR–2004–0014: FRL–9280–8]
RIN 2060–AQ73
Prevention of Significant Deterioration
(PSD) and Nonattainment New Source
Review (NSR): Reconsideration of
Inclusion of Fugitive Emissions;
Interim Rule; Stay and Revisions
Environmental Protection
Agency (EPA).
ACTION: Interim rule; stay and revisions.
AGENCY:
EPA is taking an interim
action to effectuate and extend a stay of
the final rule entitled ‘‘Prevention of
Significant Deterioration (PSD) and
Nonattainment New Source Review
(NSR): Reconsideration of Inclusion of
Fugitive Emissions’’ (‘‘Fugitive
Emissions Rule’’) published in the
Federal Register on December 19, 2008.
The Fugitive Emissions Rule under the
Federal NSR program required that
fugitive emissions be included in
determining whether a physical or
operational change results in a major
modification only for sources in
designated industries. EPA issued a stay
of the Fugitive Emissions Rule on March
31, 2010, that was effective for 18
months through October 3, 2011. This
action supersedes the stay and thereby
corrects potential confusion caused by
that stay. To effectuate a stay of the
Fugitive Emissions Rule, this action
clarifies the stay and the revisions of
specific paragraphs in the NSR
regulations that were affected by the
Fugitive Emissions Rule. This action
also extends the stay until EPA
completes its reconsideration of the
Fugitive Emissions Rule.
DATES: Effective date: This interim rule
is effective March 30, 2011.
The administrative stay of provisions
in 40 CFR 51.165, 51.166, Appendix S
to part 51, and 40 CFR 52.21 published
on March 31, 2010 (75 FR 16012) is
lifted; and
The following Code of Federal
Regulations sections are stayed
indefinitely: 40 CFR 51.165(a)(1)(v)(G)
and (a)(1)(vi)(C)(3); 51.166(b)(2)(v) and
(b)(3)(iii)(d); Appendix S to Part 51,
Paragraph II.A.5(vii); and 52.21(b)(2)(v)
and (b)(3)(iii)(c). The EPA will publish
a document in the Federal Register
lifting this stay.
Comment date: Comments must be
received on or before April 29, 2011.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–HQ–
SUMMARY:
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]]>Agencies
[Federal Register Volume 76, Number 61 (Wednesday, March 30, 2011)]
[Rules and Regulations]
[Pages 17544-17548]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-7395]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Parts 19 and 20
RIN 2900-AN34
Board of Veterans' Appeals: Remand or Referral for Further
Action; Notification of Evidence Secured by the Board and Opportunity
for Response
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Veterans Affairs (VA) is amending the
Appeals Regulations of the Board of Veterans' Appeals (Board) to
articulate the Board's practice of referring unadjudicated claims to
the Agency of Original Jurisdiction (AOJ) for appropriate action, and
to describe when it is appropriate for the Board to remand a claim to
the AOJ for the limited purpose of issuing a Statement of the Case
(SOC). We are also amending the Board's Rules of Practice to outline
the procedures the Board must follow when supplementing the record with
a recognized medical treatise, and to remove the notice procedures the
Board must currently follow when considering law not considered by the
AOJ. The purpose of these amendments is to codify existing practices
derived from caselaw, enhance efficiency, and provide guidance and
clarification.
DATES: Effective Date: The final rule is effective April 29, 2011.
FOR FURTHER INFORMATION CONTACT: Laura H. Eskenazi, Principal Deputy
Vice Chairman, Board of Veterans' Appeals (012), Department of Veterans
Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 461-8078.
(This is not a toll-free number.)
SUPPLEMENTARY INFORMATION: On December 18, 2009, VA published in the
Federal Register (74 FR 67149) a Notice of Proposed Rulemaking (NPRM)
that proposed to amend 38 CFR 19.9 to articulate the Board's practice
of referring unadjudicated claims to the AOJ for appropriate action and
to define when the Board can remand a claim to the AOJ for the limited
purpose of issuing an SOC. The NPRM also proposed to amend 38 CFR
20.903 to codify the notice procedures the Board must follow when
supplementing the record with a recognized medical treatise, and to
eliminate the notice procedures the Board must currently follow when
considering law not previously considered by the AOJ. Interested
persons were invited to
[[Page 17545]]
submit written comments on or before February 16, 2010.
We received two comments on the proposed rule. One commenter was
fully supportive of all aspects of the proposal. The second commenter
expressed concerns with various parts of the NPRM, the specifics of
which will be discussed in greater detail below. Based on the rationale
set forth in this document and in the NPRM, VA adopts the proposed rule
as final with one minor clarification.
A. Referral of Unadjudicated Claims
We proposed to amend 38 CFR 19.9(b) to articulate the Board's
practice of referring to the AOJ for appropriate action unadjudicated
claims that have been reasonably raised by the record, except for
claims over which the Board has original jurisdiction. One commenter
voiced support for the referral practice in general, but expressed
concern that the Board will make ``many unnecessary, unjustified and
time-consuming referrals'' unless Board attorneys and Veterans Law
Judges are provided with written guidance and training on what
constitutes a claim and when it is appropriate to refer a claim to the
AOJ. The commenter specifically suggested that the Board should provide
training on the difference between separate claims and separate
theories of entitlement.
As explained in the NPRM, the purpose of this rulemaking is to
provide guidance as to what action the Board must take when it
discovers an unadjudicated claim in the record. Questions regarding the
Board's training practices and when filings must be interpreted as
raising a new claim are outside the scope of this rulemaking.
We agree with the commenter that the training of Board employees is
extremely important. The Board has an established training office that
organizes regular training sessions for its employees on a wide range
of topics in the constantly-evolving field of veterans' benefits law.
The Board fully intends to continue training its employees on all
aspects of veterans' law, including matters addressed in this
rulemaking. We also emphasize that the Board has referred unadjudicated
claims for many years, and implementation of this final rule will not
result in any deviation from current Board practice. The final rule we
are adopting by this rulemaking merely codifies the Board's referral
practice in regulation. We therefore make no changes to the proposed
rule based on this comment.
B. Remand for Issuance of an SOC
Proposed 38 CFR 19.9(c) stated that in situations where a claimant
timely filed a Notice of Disagreement (NOD) with a determination of the
AOJ, but the record does not reflect that the AOJ subsequently granted
the claim in full or furnished the claimant with an SOC, the Board
shall remand the claim to the AOJ with instructions to prepare and
issue an SOC. See generally Manlincon v. West, 12 Vet. App. 238 (1999).
While agreeing with the substance of the proposed regulatory amendment,
one commenter expressed concern that ``the statement at 74 FR 67151 [of
the Preamble] that the claimant must file another timely Substantive
Appeal to perfect the appeal is contrary to law'' (emphasis added). The
commenter cited to Hamilton v. Brown, 39 F.3d 1574, 1585 (Fed. Cir.
1994), as support for the proposition that a claim that has been
remanded to the AOJ will be ``automatically returned to the Board for
further processing if full relief is not awarded by the [AOJ] on
remand.'' See Hamilton, 39 F.3d at 1584-85 (citing 38 CFR 19.182 (1988)
(now codified in 38 CFR 19.9, 19.31, and 19.38)).
We respectfully disagree with the commenter as the Preamble does
not state that a claimant must file another Substantive Appeal after
issuance of an SOC. The portion of the Preamble referenced by the
commenter states the following: ``The appeal initiated by the filing of
the NOD will be subsequently returned to the Board only if, after the
AOJ issues the SOC, the appellant files a timely Substantive Appeal
that perfects the appeal to the Board.'' NPRM, 74 FR at 67151. This
sentence explains that the situation addressed in proposed Sec.
19.9(c) is one where a claimant has not had an opportunity to file a
Substantive Appeal on the issue being remanded because the AOJ has not
yet issued an SOC. Therefore, the commenter's characterization of
proposed Sec. 19.9(c) as requiring the filing of a second Substantive
Appeal is simply incorrect. Rather, the law is well settled that an
appeal to the Board consists of a timely filed NOD in writing and,
after an SOC has been furnished, the submission of a timely filed
Substantive Appeal. 38 U.S.C. 7105(a); 38 CFR 20.200. Accordingly, a
matter that is remanded pursuant to proposed Sec. 19.9(c) for issuance
of an SOC may be returned to the Board only if a timely Substantive
Appeal is filed, following the issuance of the SOC, for purposes of
perfecting the appeal of the matter to the Board.
The commenter's reliance on Hamilton is also misplaced. Unlike
proposed Sec. 19.9(c), Hamilton did not address remand by the Board
for the limited purpose of issuing an SOC. Hamilton instead addressed a
remand for evidentiary development in an appeal that had already been
perfected by the timely filing of a Substantive Appeal. Hamilton, 39
F.3d at 1577-78. In Hamilton, the United States Court of Appeals for
the Federal Circuit (Federal Circuit) specifically discussed whether a
statement filed in response to a Supplemental SOC (SSOC) could be
considered an NOD. Hamilton, 39 F.3d at 1584-85. The Federal Circuit
concluded that, since an SSOC was not an initial determination made by
the AOJ, such a statement could not be considered an NOD, even if it
raised new issues in connection with the claim. Id. at 1584. The
Federal Circuit did not discuss whether a claimant needed to submit
multiple Substantive Appeals; it addressed whether multiple NODs could
be filed in one claim. Thus, the situation in Hamilton was markedly
different from that addressed by proposed Sec. 19.9(c), which concerns
the Board's remand of a claim to the AOJ for issuance of an SOC so an
appellant can have an opportunity to file a single Substantive Appeal
necessary to complete the appeal to the Board. We accordingly make no
change to the proposed rule based on this comment.
We are, however, making one minor revision to proposed Sec.
19.9(c). In the NPRM, we proposed the following rule language: ``In
cases before the Board in which a claimant has timely filed a Notice of
Disagreement with a determination of the agency of original
jurisdiction on a claim, but the record does not reflect that the
agency of original jurisdiction subsequently granted the claim in full
or furnished the claimant with a Statement of the Case, the Board shall
remand the claim to the agency of original jurisdiction with
instructions to prepare and issue a Statement of the Case * * * .'' 74
FR at 67154. Upon further consideration of this language, we have
determined that the use of the disjunctive ``or'' between the phrase
``but the record does not reflect that the [AOJ] subsequently granted
the claim in full'' and the phrase ``furnished the claimant with a[n
SOC]'' could cause confusion as to the possible situations under which
the Board must remand a case pursuant to Sec. 19.9(c). Taken
literally, the use of the disjunctive ``or'' could lead to the
misinterpretation that the Board is required to remand a case in
situations where the AOJ has not granted the claim in full following
the filing of an NOD, but where an SOC has already been
[[Page 17546]]
issued. This outcome was not our intent in issuing proposed Sec.
19.9(c). For obvious reasons, if an SOC has already been issued on a
claim subsequent to the NOD, the Board would not be required to remand
for issuance of another SOC. To avoid this incorrect construction, we
have slightly reworded Sec. 19.9(c) and replaced the disjunctive
``or'' with the conjunctive ``and'' to clarify that the Board will only
be required to remand a claim to the AOJ for issuance of an SOC
following the timely filing of an NOD when: (1) the AOJ has not
subsequently granted the claim in full, and (2) the AOJ has not
furnished the claimant with an SOC. We believe this minor revision more
clearly describes when the Board will remand for issuance of an SOC
pursuant to Sec. 19.9(c).
C. Thurber Procedures
We proposed to amend 38 CFR 20.903(b) to clarify the notice
procedures the Board must follow when it supplements the record with a
recognized medical treatise. One commenter objected to the proposed
language which stated that, as part of the notice procedures, the Board
will inform appellants that it ``will consider such recognized medical
treatise in the adjudication of the appeal.'' The commenter believed
that this language does not provide a claimant and his or her
representative with the requisite notice regarding the reliance
proposed to be placed on the treatise, and thus, does not comply with
the notice requirements outlined in Thurber v. Brown, 5 Vet. App. 119
(1993).
We respectfully disagree with this comment. As explained in the
NPRM, we chose not to use the term ``reliance'' in Sec. 20.903(b)
because such language could be misconstrued to suggest that the Board
has already reached a preliminary decision on a claim. NPRM, 74 FR at
67152. We do not interpret Thurber as requiring the Board to pre-
adjudicate a claim before following the requisite notice procedures.
Id. This interpretation is in accordance with other areas of VA
adjudicatory procedure that do not require the Secretary to rule on the
probative value of evidence prior to reaching a decision on the merits.
For example, the United States Court of Appeals for Veterans Claims
(Veterans Court) has interpreted VA notice requirements under 38 U.S.C.
5103(a) as not imposing upon the Secretary a ``legal obligation to rule
on the probative value of information and evidence presented in
connection with a claim prior to rendering a decision on the merits of
the claim itself.'' Locklear v. Nicholson, 20 Vet. App. 410, 415-16
(2006) (noting that the VA adjudication process is ``longitudinal and
sequential'' and that the gathering of information and evidence is
meant to precede VA analysis and adjudication). In addition, the
Federal Circuit has held that the notice letter provided under section
5103(a) does not need to ``describe the VA's evaluation of the
veteran's particular claim.'' Wilson v. Mansfield, 506 F.3d 1055, 1062
(Fed. Cir. 2007).
Moreover, Sec. 20.903(a) requires the Board to provide an
appellant with a copy of a medical opinion obtained pursuant to Sec.
20.901 and an opportunity to respond to the opinion. This provision is
substantially similar to proposed Sec. 20.903(b) in that it provides a
claimant with notice and an opportunity to respond, but does not
require the Board to pre-adjudicate an appellant's claim when providing
this notice. In Wilson, the Federal Circuit noted that when Sec.
20.903(a) was promulgated the Secretary rejected a proposal to provide
the claimant with ``a form of predecisional adjudication.'' Wilson, 506
F.3d at 1061 n.3 (citing 67 FR 3099, 3100 (Jan. 23, 2002)). The Federal
Circuit explained that notice under Sec. 20.903(a) is not meant to
inform an appellant of how the Board intends to weigh the evidence or
analyze the claim. Id. The same logic applies to proposed Sec.
20.903(b), as it is also not meant to provide an appellant with a pre-
adjudication of the merits of a claim. The purpose of the notice
procedures outlined in Thurber is to elicit additional evidence and
argument that will more fully inform the Board's eventual decision. We
believe the language of proposed Sec. 20.903(b) serves this purpose,
while at the same time avoiding any implication that the Board has
reached a preliminary decision on the appeal. Therefore, we make no
changes to the proposed rule based on this comment.
D. Board Consideration of Law Not Already Considered by the AOJ
The NPRM proposed to completely remove the provisions of current 38
CFR 20.903(b) from the Board's Rules of Practice. Current Sec.
20.903(b) requires that if the Board intends to consider law not
already considered by the AOJ, and such consideration could result in
denial of the appeal, the Board must notify the appellant and his or
her representative of its intent to do so, provide a copy or summary of
the law to be considered, and allow 60 days for a response. One
commenter stated a belief that it is ``ill conceived'' to remove this
provision. While the commenter acknowledged that the Board as an
appellate body can consider law not previously considered by the AOJ,
the commenter believed that the same due process considerations
underlying the Thurber notice requirements apply.
We reject this comment for the following reasons. The situation set
out in Thurber is fundamentally different than when VA relies on a
provision of law not previously considered by the AOJ. Thurber
specifically addresses whether an appellant is entitled to receive
notice and an opportunity to respond before the Board considers a
medical treatise in making a decision. Thurber, 5 Vet. App. at 120. The
appellant would not be aware of the content of a medical treatise
relied upon unless the Board provided the appellant with notice of its
provisions. In contrast, statutes, regulations, and case law are all
matters of public record. The United States Supreme Court has held that
everyone dealing with the Government is charged with knowledge of
federal statutes and lawfully promulgated agency regulations. Fed. Crop
Ins. Corp. v. Merrill, 332 U.S. 380, 384-85 (1947); see Morris v.
Derwinski, 1 Vet. App. 260, 265 (1991) (applying Fed. Crop Ins. Corp.
in the context of VA regulations); Velez v. West, 11 Vet. App. 148, 156
(1998) (same); see also ATC Petroleum, Inc. v. Sanders, 860 F.2d 1104,
1111-12 (DC Cir. 1988) (noting that ``parties dealing with the
government are expected to know the law'' and that ``there is no grave
injustice in holding parties to a reasonable knowledge of the law''
(internal quotation marks omitted)). Information about governing law,
including relevant case law, is available to the public without the
Board providing the notice required by current Sec. 20.903(b).
As explained in the NPRM, in Disabled American Veterans v.
Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the
Federal Circuit considered a challenge to the validity of Sec.
19.9(b)(2), which permits the Board to consider law not considered by
the AOJ in the first instance. Id. at 1349. The Federal Circuit
deferred to VA's interpretation that the ``Board's status as an
appellate body does not bar it from considering law not considered by
the AOJ,'' and held that in considering ``whether the proper law was
applied by the AOJ in a particular claim, the Board inherently provides
legal questions `one review on appeal to the Secretary' as required by
[38 U.S.C.] 7104(a).'' Id. The Federal Circuit's holding was not
predicated on the Board's adherence to the notice provisions outlined
in current Sec. 20.903(b). Id.
Several statutory provisions also contemplate the Board's
consideration
[[Page 17547]]
of all applicable law, whether or not such law has been considered by
the AOJ and regardless of whether the notice provisions of current
Sec. 20.903(b) have been satisfied. Section 7104(a) requires that
``[d]ecisions of the Board shall be based * * * upon consideration of
all * * * applicable provisions of law and regulation.'' Section
7104(c) provides that the ``Board shall be bound in its decisions by
the regulations of the Department, instructions of the Secretary, and
the precedent opinions of the chief legal officer of the Department.''
Moreover, 38 U.S.C. 7104(d)(1) requires that each Board decision
include ``a written statement of the Board's findings and conclusions,
and the reasons or bases for those findings and conclusions, on all
material issues of fact and law presented on the record'' (emphasis
added). None of these provisions is conditioned on the Board's
following notice procedures similar to those currently outlined in 38
CFR 20.903(b).
Removing current Sec. 20.903(b) is consistent with the
jurisprudence of both the Veterans Court and the Federal Circuit, and
more accurately depicts the Board's statutory obligation to consider
all applicable provisions of law and regulation. 38 U.S.C. 7104. We
therefore make no changes to the proposed rule based on the commenter's
suggestion.
Paperwork Reduction Act
This document contains no provisions constituting a collection of
information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).
Regulatory Flexibility Act
The Secretary hereby certifies that this regulatory amendment will
not have a significant economic impact on a substantial number of small
entities as they are defined in the Regulatory Flexibility Act, 5
U.S.C. 601-612. These amendments would not directly affect any small
entities. Only VA beneficiaries and their survivors could be directly
affected. Therefore, pursuant to 5 U.S.C. 605(b), these amendments are
exempt from the initial and final regulatory flexibility analysis
requirements of sections 603 and 604.
Executive Order 12866--Regulatory Planning and Review
Executive Order 12866 directs agencies to assess all costs and
benefits of available regulatory alternatives and, when regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety,
and other advantages; distributive impacts; and equity). The Order
classifies a rule as a significant regulatory action requiring review
by the Office of Management and Budget if it meets any one of a number
of specified conditions, including: having an annual effect on the
economy of $100 million or more, creating a serious inconsistency or
interfering with an action of another agency, materially altering the
budgetary impact of entitlements or the rights of entitlement
recipients, or raising novel legal or policy issues. VA has examined
the economic, legal, and policy implications of this final rule and has
concluded that it is not a significant regulatory action under
Executive Order 12866 because it primarily codifies longstanding VA
practice and already existing law, does not raise any novel legal or
policy issues, and will have little to no effect on the economy.
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in an expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector of $100 million or more (adjusted annually for
inflation) in any given year. This rule would have no such effect on
State, local, and tribal governments, or on the private sector.
Catalog of Federal Domestic Assistance Numbers and Titles
The Catalog of Federal Domestic Assistance program numbers and
titles for this proposal are 64.100, Automobiles and Adaptive Equipment
for Certain Disabled Veterans and Members of the Armed Forces; 64.101,
Burial Expenses Allowance for Veterans; 64.102, Compensation for
Service-Connected Deaths for Veterans' Dependents; 64.103, Life
Insurance for Veterans; 64.104, Pension for Non-Service-Connected
Disability for Veterans; 64.105, Pension to Veterans Surviving Spouses,
and Children; 64.106, Specially Adapted Housing for Disabled Veterans;
64.109, Veterans Compensation for Service-Connected Disability; 64.110,
Veterans Dependency and Indemnity Compensation for Service-Connected
Death; 64.114, Veterans Housing-Guaranteed and Insured Loans; 64.115,
Veterans Information and Assistance; 64.116,Vocational Rehabilitation
for Disabled Veterans; 64.117, Survivors and Dependents Educational
Assistance; 64.118, Veterans Housing-Direct Loans for Certain Disabled
Veterans; 64.119, Veterans Housing-Manufactured Home Loans; 64.120,
Post-Vietnam Era Veterans' Educational Assistance; 64.124, All-
Volunteer Force Educational Assistance; 64.125, Vocational and
Educational Counseling for Servicemembers and Veterans; 64.126, Native
American Veteran Direct Loan Program; 64.127, Monthly Allowance for
Children of Vietnam Veterans Born with Spina Bifida; and 64.128,
Vocational Training and Rehabilitation for Vietnam Veterans' Children
with Spina Bifida or Other Covered Birth Defects.
Signing Authority
The Secretary of Veterans Affairs, or designee, approved this
document and authorized the undersigned to sign and submit the document
to the Office of the Federal Register for publication electronically as
an official document of the Department of Veterans Affairs. John R.
Gingrich, Chief of Staff, approved this document on March 18, 2011 for
publication.
List of Subjects in 38 CFR Parts 19 and 20
Administrative practice and procedure, Claims, Veterans.
Dated: March 24, 2011.
Robert C. McFetridge,
Director, Regulations Policy and Management, Department of Veterans
Affairs.
For the reasons set forth in the Preamble to this final rule, VA
amends 38 CFR parts 19 and 20 as follows:
PART 19--BOARD OF VETERANS' APPEALS: APPEALS REGULATIONS
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1. The authority citation for part 19 continues to read as follows:
Authority: 38 U.S.C. 501(a), unless otherwise noted.
Subpart A--Operation of the Board of Veterans' Appeals
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2. Amend Sec. 19.9 by:
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a. Revising the section heading and paragraph (a) heading.
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b. Revising paragraphs (b) and (c).
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c. Adding paragraph (d).
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d. Revising the authority citation at the end of the section.
The revisions and addition read as follows:
Sec. 19.9 Remand or referral for further action.
(a) Remand . * * *
(b) Referral. The Board shall refer to the agency of original
jurisdiction for appropriate consideration and handling in the first
instance all claims reasonably raised by the record that have not been
initially adjudicated by the agency of original jurisdiction,
[[Page 17548]]
except for claims over which the Board has original jurisdiction.
(c) Remand for a Statement of the Case. In cases before the Board
in which a claimant has timely filed a Notice of Disagreement with a
determination of the agency of original jurisdiction on a claim, but
the record reflects that the agency of original jurisdiction has not
subsequently granted the claim in full and has not furnished the
claimant with a Statement of the Case, the Board shall remand the claim
to the agency of original jurisdiction with instructions to prepare and
issue a Statement of the Case in accordance with the provisions of
subpart B of this part. A remand for a Statement of the Case is not
required if the claimant, consistent with the withdrawal requirements
of Sec. 20.204 of this chapter, withdraws the Notice of Disagreement.
(d) Exceptions. A remand or referral to the agency of original
jurisdiction is not necessary for any of the following purposes:
(1) Clarifying a procedural matter before the Board, including the
appellant's choice of representative before the Board, the issues on
appeal, or requests for a hearing before the Board;
(2) Considering law not already considered by the agency of
original jurisdiction, including, but not limited to, statutes,
regulations, and court decisions;
(3) Reviewing additional evidence received by the Board, if,
pursuant to Sec. 20.1304(c) of this chapter, the appellant or the
appellant's representative waives the right to initial consideration by
the agency of original jurisdiction, or if the Board determines that
the benefit or benefits to which the evidence relates may be fully
allowed on appeal;
(4) Requesting an opinion under Sec. 20.901 of this chapter;
(5) Supplementing the record with a recognized medical treatise; or
(6) Considering a matter over which the Board has original
jurisdiction.
(Authority: 38 U.S.C. 7102, 7103(c), 7104(a), 7105).
PART 20--BOARD OF VETERANS' APPEALS: RULES OF PRACTICE
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3. The authority citation for part 20 continues to read as follows:
Authority: 38 U.S.C. 501(a) and as noted in specific sections.
Subpart J--Action by the Board
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4. Amend Sec. 20.903 by:
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a. Revising the section heading.
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b. Revising paragraph (b).
The revisions read as follows:
Sec. 20.903 Rule 903. Notification of evidence to be considered by
the Board and opportunity for response.
* * * * *
(b) If the Board supplements the record with a recognized medical
treatise--(1) General. If, pursuant to Sec. 19.9(d)(5) of this
chapter, the Board supplements the record with a recognized medical
treatise, the Board will notify the appellant and his or her
representative, if any, that the Board will consider such recognized
medical treatise in the adjudication of the appeal. The notice from the
Board will contain a copy of the relevant portions of the recognized
medical treatise. The appellant will be given 60 days after the date of
the notice described in this section to file a response, which may
include the submission of relevant evidence or argument. The date the
Board gives the notice will be presumed to be the same as the date of
the notice letter for purposes of determining whether a response was
timely filed.
(2) Exception. The notice described in paragraph (b)(1) of this
section is not required if the Board uses a recognized medical treatise
or medical dictionary for the limited purpose of defining a medical
term and that definition is not material to the Board's disposition of
the appeal.
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5. In Sec. 20.1304, revise paragraph (b)(2) to read as follows:
Sec. 20.1304 Rule 1304. Request for change in representation, request
for personal hearing, or submission of additional evidence following
certification of an appeal to the Board of Veterans' Appeals.
* * * * *
(b) * * *
(2) Exception. The motion described in paragraph (b)(1) of this
section is not required to submit evidence in response to a notice
described in Sec. 20.903 of this chapter.
* * * * *
[FR Doc. 2011-7395 Filed 3-29-11; 8:45 am]
BILLING CODE 8320-01-P
