VA Claims and Appeals Modernization, 39818-39869 [2018-15754]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 83, Number 155 (Friday, August 10, 2018)]
[Proposed Rules]
[Pages 39818-39869]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-15754]



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Vol. 83

Friday,

No. 155

August 10, 2018

Part II





 Department of Veterans Affairs





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38 CFR Parts 3, 8, 14, et al.





 VA Claims and Appeals Modernization; Proposed Rule

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

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DEPARTMENT OF VETERANS AFFAIRS

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

RIN 2900-AQ26


VA Claims and Appeals Modernization

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) is proposing to amend 
its claims adjudication, appeals, and Rules of Practice of the Board of 
Veterans' Appeals (Board) regulations. In addition, VA proposes to 
revise its regulations with respect to accreditation of attorneys, 
agents, and Veterans Service Organization (VSO) representatives; the 
standards of conduct for persons practicing before VA; and the rules 
governing fees for representation. This rulemaking is needed to 
implement the Veterans Appeals Improvement and Modernization Act. That 
law amended the procedures applicable to administrative review and 
appeal of VA decisions denying claims for benefits, creating a new, 
modernized review system.
    Unless otherwise specified, VA intends to make the proposed 
regulatory changes applicable to claims processed under the new review 
system, which generally applies where an initial VA decision on a claim 
is provided on or after the effective date or where a claimant has 
elected to opt into the new review system under established procedures.

DATES: Comments must be received by VA on or before October 9, 2018 to 
be considered in the formulation of the final rule.

ADDRESSES: Written comments may be submitted through 
www.Regulations.gov; by mail or hand-delivery to Director, Regulation 
Policy and Management (00REG), Department of Veterans Affairs, 810 
Vermont Avenue NW, Room 1063B, Washington, DC 20420; or by fax to (202) 
273-9026. Comments should indicate that they are submitted in response 
to ``RIN 2900-AQ26--VA Claims and Appeals Modernization.'' Copies of 
comments received will be available for public inspection in the Office 
of Regulation Policy and Management, Room 1063B, between the hours of 
8:00 a.m. and 4:30 p.m., Monday through Friday (except holidays). 
Please call (202) 461-4902 for an appointment. This is not a toll-free 
number. In addition, during the comment period, comments may be viewed 
online through the Federal Docket Management System (FDMS) at 
www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Veterans Benefits Administration 
information: Jennifer Williams, Senior Management and Program Analyst, 
Appeals Management Office, Department of Veterans Affairs, 810 Vermont 
Avenue NW, Washington, DC 20420, (202) 530-9124 (this is not a toll-
free number). Board of Veterans' Appeals information: Rachel Sauter, 
Counsel for Legislation, Regulations, and Policy, Board of Veterans' 
Appeals. Department of Veterans Affairs, 810 Vermont Avenue NW, 
Washington, DC 20420, (202) 632-5555 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION: Modernizing the appeals process is a top 
priority for VA. In fiscal year (FY) 2017, claimants generally waited 
less than 125 days for an initial decision on VA disability 
compensation claims; however, they waited an average of 3 years for a 
final decision if they chose to appeal. Moreover, in FY2017 those 
claimants who chose to continue their appeal to the Board waited an 
average of 7 years for a decision from the date that they initiated 
their appeal, and the Board decision may not have resolved the appeal.
    Public Law (Pub. L.) 115-55, the Veterans Appeals Improvement and 
Modernization Act of 2017 (hereinafter ``Pub. L. 115-55'') provides 
much-needed comprehensive reform for the legacy appeals process, to 
help ensure that claimants receive a timely decision on review where 
they disagree with a VA claims adjudication. It replaces the current VA 
appeals process with a new review process that makes sense for 
veterans, their advocates, VA, and stakeholders.
    In the current VA appeal process, which is set in law, appeals are 
non-linear and may require VA staff to engage in gathering and 
receiving evidence and re-adjudicating appeals based on new evidence. 
This process of gathering evidence and readjudication can add years to 
the appeals process, as appeals churn between the Board and the agency 
of original jurisdiction. Additionally, jurisdiction of appeals 
processing is shared between the Board and the agency of original 
jurisdiction, which, for purposes of the changes made by this proposed 
rule, is typically the Veterans Benefits Administration (VBA).
    The new statutory appeals framework features three differentiated 
lanes from which a claimant may choose in seeking review of a VA denial 
(or partial denial) of a claim. One lane is for review of the same 
evidence by a higher-level claims adjudicator in the agency of original 
jurisdiction (higher-level review); one lane is for submitting new and 
relevant evidence with a supplemental claim to the agency of original 
jurisdiction (supplemental claim); and one lane is the appeals lane for 
seeking review by a Veterans Law Judge at the Board by filing a Notice 
of Disagreement (appeal to the Board). In an appeal to the Board, 
Public Law 115-55 eliminates intermediate and duplicative steps 
previously required, such as the Statement of the Case (SOC) and the 
substantive appeal. Furthermore, the new law will allow the Board to 
maintain three separate dockets for handling the following categories 
of appeals: (1) Appeals where the claimant has requested a hearing, (2) 
appeals with no request for a hearing but where the claimant elects to 
submit other forms of evidence, and (3) appeals where the claimant 
requests Board review on the same evidence that was before the agency 
of original jurisdiction. These separate dockets will allow the Board 
to more efficiently and effectively manage distinctly different types 
of work. As a result of the new lane options, claimants will have 
increased choice for resolving disagreements with a VA decision on a 
claim.
    In addition, the differentiated lanes will allow the agency of 
original jurisdiction to be the claim development entity within VA and 
the Board to be the appeals entity. This design is intended to reduce 
the uncertainty caused by the current process, in which a claimant 
initiates an appeal in the agency of original jurisdiction and the 
appeal is often a years-long continuation of the claim development 
process. It ensures that all claim development by the agency of 
original jurisdiction occurs in the context of either an initial or 
supplemental claim filed with the agency of original jurisdiction, 
rather than in an appeal.
    The agency of original jurisdiction's duty to assist in developing 
evidence will continue to apply when a claimant initiates a new or 
supplemental claim. However, where a claimant seeks review of an agency 
of original jurisdiction decision, the duty to assist generally no 
longer applies, unless and until the claimant elects to file a 
supplemental claim, at which point the duty to assist applies to the 
supplemental claim. The proposed regulations also contain a mechanism 
to correct any duty to assist errors occurring before the agency of 
original jurisdiction, if such errors are discovered on review or 
appeal, by requiring that the claim be returned to

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the agency of original jurisdiction for correction of the error, unless 
the maximum benefit is granted. The proposed regulations require claim 
decision notices to be clearer and more detailed. The improved notices 
will help claimants and their advocates make informed choices as to 
which review option makes the most sense.
    The statutory requirements, which we propose to codify in these 
proposed regulations, provide a claimant who is not fully satisfied 
with the result of any review lane one year to seek further review 
while preserving an effective date for benefits based upon the original 
filing date of the claim. For example, a claimant could go straight 
from an initial agency of original jurisdiction decision on a claim to 
an appeal to the Board. If the Board decision was not favorable, but it 
helped the claimant understand what evidence was needed to support the 
claim, then the claimant would have one year to submit new and relevant 
evidence to the agency of original jurisdiction in a supplemental claim 
without fearing loss of the effective date for choosing to go to the 
Board first.
    The differentiated lane framework required by statute and proposed 
to be codified in these regulations has many advantages. It provides a 
streamlined process that allows for early resolution of a claimant's 
appeal and the lane options allow claimants to tailor the process to 
meet their individual needs and control their VA experience. It also 
enhances claimants' rights by preserving the earliest possible 
effective date for an award of benefits, regardless of the option(s) 
they choose, as long as the claimant pursues review of a claim in any 
of the lanes within the established timeframes. By having a higher-
level review lane within the claims process and a lane at the Board 
providing for review on only the record considered by the initial 
claims adjudicator, the new process provides a feedback mechanism for 
targeted training and improved quality in the VBA or other claims 
adjudication agency.
    To ensure that as many claimants as possible benefit from the 
streamlined features of the new process, Public Law 115-55 and the 
proposed regulations provide opportunities for claimants and appellants 
in the legacy system to take advantage of the new system. Some 
claimants who receive a decision prior to the effective date of the law 
will be able to participate in the new system. Other claimants who 
receive an SOC or Supplemental Statement of the Case (SSOC) in a legacy 
appeal after the effective date of the law will also have an 
opportunity to opt-in to the new system.
    VA initially met in March 2016 with Veterans Service Organizations 
(VSOs), congressional staff, and other stakeholders to develop a plan 
to reform the current appeals process. The result of this collaborative 
work was a new appeals framework, with the same fundamental features as 
the process described in section 2 of Public Law 115-55. This new 
process will provide veterans with timely, fair, and high quality 
decisions. The engagement of those organizations that participated in 
the March 2016 ``Appeals Summit'' ultimately led to a stronger 
proposal, as VA was able to incorporate stakeholder feedback and 
benefit from the perspective of those with extensive experience in 
helping veterans navigate the complex VA appeals process.
    In November 2017, VA again met with stakeholders to highlight 
important changes required by the new law, answered questions, and 
discussed specific concerns. VA is grateful to all of the stakeholders 
for their contributions of time, energy, and expertise in this effort.
    The majority of amendments addressed in this proposed rule are 
mandatory to comply with the law. Through careful collaboration with 
VA, VSOs, and other stakeholders, in enacting Public Law 115-55, 
Congress provided a highly detailed statutory framework for claims and 
appeals processing. VA is unable to alter proposed amendments that 
directly implement mandatory statutory provisions. In addition to 
implementing mandatory requirements, VA proposes a few interpretive or 
gap-filling amendments to the regulations which are not specifically 
mandated by Public Law 115-55, but that VA believes are in line with 
the law's goals to streamline and modernize the claims and appeals 
process. These amendments fill gaps in the new law left by Congress, 
reduce unnecessary regulations, streamline and modernize processes, and 
improve services for Veterans.
    This proposed rule contains amendments to parts 3, 8, 14, 19, 20, 
and 21, as described in detail below.

Part 3--Adjudication

    VA proposes to amend the regulations in 38 CFR part 3 as described 
in the section-by-section supplementary information below. These 
regulations govern the adjudication of claims for monetary benefits 
(e.g., compensation, pension, dependency and indemnity compensation, 
and burial benefits), which are administered by the VBA. Other VA 
agencies of original jurisdiction may have adopted portions of these 
regulations, or their content, with respect to their adjudication and 
review processes.

Sec.  3.1 Definitions.

    VA proposes to amend the definition of ``claim'' in Sec.  3.1(p), 
to add definitions of the terms ``initial claim'' and ``supplemental 
claim,'' as the distinction between those terms is significant under 
the changes made by Public Law 115-55, which provides for the filing 
and adjudication of supplemental claims and adds a definition of 
supplemental claim at 38 U.S.C. 101(36). VA proposes to define an 
``initial claim'' as a claim for a benefit other than a supplemental 
claim, including the first filing by a claimant (original claim) and a 
subsequent claim filed by a claimant for an increase in a disability 
evaluation, a new benefit, or a new disability. The definition of a 
claim for increase is moved into this section from Sec.  3.160 and is 
expanded to more accurately reflect the nature of such claims.
    Public Law 115-55, section 2(a), defines ``supplemental claim'' as 
``a claim for benefits under laws administered by the Secretary filed 
by a claimant who had previously filed a claim for the same or similar 
benefits on the same or similar basis.'' The Secretary is required to 
readjudicate the claim if new and relevant evidence is presented or 
secured with respect to a supplemental claim. VA proposes to clarify in 
the regulatory definition of supplemental claim that VA must have 
issued a decision with respect to the previously filed claim before a 
supplemental claim can be filed. The inclusion of this requirement for 
a supplemental claim is consistent with the language of revised 38 
U.S.C. 5108, which requires the Secretary to ``readjudicate'' a claim 
where ``new and relevant evidence is presented or secured with respect 
to a supplemental claim.'' This language presupposes that VA has 
already adjudicated the claim and issued a notice of decision before a 
supplemental claim is filed.
    With the inclusion of additional definitions under Sec.  3.1(p), VA 
proposes to amend the cross references to include a reference to 
supplemental claims under the new Sec.  3.2501.

Sec.  3.103 Procedural Due Process and Other Rights

    Under 38 U.S.C. 5104(a), when VA makes a decision affecting the 
provision of benefits to a claimant, VA must provide the claimant and 
his or her representative with notice of the decision. Under current 38 
U.S.C.

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5104(b), in any case where VA denies the benefit sought, that notice 
must include a statement of the reasons for the decision and a summary 
of the evidence considered by VA.
    Public Law 115-55 revised 38 U.S.C. 5104(b) to specify that each 
notice provided under section 5104(a) must include all of the 
following: Identification of the issues adjudicated; a summary of the 
evidence considered by VA; a summary of applicable laws and 
regulations; identification of findings favorable to the claimant; in 
the case of a denial, identification of elements not satisfied leading 
to the denial; an explanation of how to obtain or access evidence used 
in making the decision; and, if applicable, identification of the 
criteria that must be satisfied to grant service connection or the next 
higher-level of compensation.
    VA proposes to amend its procedures for issuing decisions to 
conform with the amendments to 38 U.S.C. 5104(b). Enhanced decision 
notices will allow claimants and their representatives to make more 
informed choices about whether to seek further review and, if so, which 
of the new review lanes best fits the claimant's needs: Filing a 
supplemental claim with the agency of original jurisdiction, requesting 
a higher-level review of the initial decision within the agency of 
original jurisdiction, or appealing to the Board.
    In addition, to comply with 38 U.S.C. 5104B(d), VA proposes to 
amend Sec.  3.103 to explain that the evidentiary record for a claim 
before the agency of original jurisdiction closes when VA issues notice 
of a decision on said claim. A claimant may reopen the evidentiary 
record by submitting a supplemental claim or claim for an increase on 
the prescribed application form. Consistent with its discretionary 
authority under 38 U.S.C. 501(a), VA proposes to require a prescribed 
application form for submitting a supplemental claim consistent with 
current regulations applicable to claims. Submission of a substantially 
complete initial or supplemental claim also triggers VA's duty to 
assist in the gathering of evidence under Sec.  3.159. The evidentiary 
record also reopens when a claim must be readjudicated due to 
identification of a duty to assist error on higher-level review or by 
the Board. Whenever the record reopens, evidence submitted to the 
agency of original jurisdiction while the record was closed will become 
part of the record to be considered for a subsequent adjudication.
    VA also proposes to make several nomenclature changes within Sec.  
3.103 to update language and clarify that a hearing before VA may be 
conducted in person or through videoconferencing tools available at a 
regional office closest to the claimant. The changes also clarify that 
a hearing will not be provided in connection with a request for higher-
level review. Claimants will have the opportunity to request an 
informal conference in connection with a request for higher-level 
review as provided in proposed Sec.  3.2601.
    Finally, VA proposes to delete the last sentence of Sec.  
3.103(c)(2), allowing a claimant to request visual examination during a 
hearing by a physician designated by VA. Due to the complex 
considerations involved in making determinations on the nature, origin, 
or degree of disability, a physician's visual assessment during a 
hearing has significant limitations. Disability assessments typically 
involve a comprehensive clinical evaluation with appropriate 
standardized testing to establish the diagnosis or origin, or 
characterize the severity of impairment. For some conditions, this 
could include specialized equipment, tests, or training that would not 
be available by a physician during a visual examination; examples of 
specialized testing could include neuropsychological evaluations for 
traumatic brain injury (TBI) claimants. Accordingly, VA proposes to 
remove the reference that claimants may request visual examination by a 
physician at the hearing. Although VA does not currently have data on 
the number of examinations requested by veterans during hearings, these 
types of examinations are obsolete as Veterans and VA can now utilize 
several other methods to add visual examination findings into the 
record. These include Disability Benefits Questionnaires (DBQs) that a 
claimant may ask any physician to complete to document visual findings 
and contract examinations which support VA's disability evaluation 
process and make obtaining examinations easier and more efficient by 
bypassing the requirement to formally schedule one with a VA provider.

Sec.  3.104 Finality and Binding Nature of Decisions

    VA proposes to amend Sec.  3.104(a), concerning the binding nature 
of decisions, to conform with other regulatory changes implementing 
Public Law 115-55. In addition, VA proposes to remove the word 
``final'' from this section for consistency with the definition of 
finally adjudicated claim in Sec.  3.160(d). Decisions issued by an 
agency of original jurisdiction are binding on VA field offices under 
Sec.  3.104 when issued, even though the decision is not finally 
adjudicated because the period for a claimant to seek review of the 
decision is still open. The current wording of Sec.  3.104 refers to 
such decisions as ``final'' and binding when they are issued. The 
definition of ``finally adjudicated'' in Sec.  3.160(d) will be 
maintained and a decision on a claim is final when the claim is finally 
adjudicated.
    In addition, Public Law 115-55 added a new section, 38 U.S.C. 
5104A, providing that any findings favorable to the claimant will be 
binding on all subsequent adjudicators within VA, unless clear and 
convincing evidence is shown to the contrary to rebut the favorable 
findings. VA proposes to amend Sec.  3.104 to include a new paragraph 
implementing this provision. VA further proposes to define a finding as 
a conclusion on either a question of fact or on an application of law 
to facts.

Sec.  3.105 Revision of Decisions

    VA proposes to amend Sec.  3.105(a) to incorporate existing legal 
standards recognized in judicial decisions applicable to revision of 
final decisions under 38 U.S.C. 5109A. This statute allows for revision 
or reversal of final decisions by the Secretary based on clear and 
unmistakable error (CUE). These rules are set forth in proposed Sec.  
3.105(a)(1). Proposed Sec.  3.105(a)(2) contains standards applicable 
to revision of decisions that are not yet final.
    Proposed Sec.  3.105(a)(1) incorporates judicial standards 
applicable to revision of final decisions based on CUE under 38 U.S.C. 
5109A. No substantive changes are intended to the existing law 
governing revision of final agency of original jurisdiction decisions 
based on CUE. The proposed amendments conform regulations with respect 
to revision of final decisions by the agency of original jurisdiction 
with similar regulatory changes previously promulgated with respect to 
revision of final Board decisions based on CUE under 38 U.S.C. 7111. 
See 38 CFR 20.1400--20.1411; 64 FR 2134 (January 13, 1999). Those 
changes similarly incorporated judicially recognized CUE principles and 
were upheld in Disabled American Veterans v. Gober, 234 F.3d 682 (Fed. 
Cir. 2000). The Court in Disabled American Veterans found that the 
enactment of statutory sections 5109A and 7111 `` `codified . . . the 
Court of Appeals for Veterans Claims' long standing interpretation of 
CUE.' '' Id. at 687 (quoting Bustos v. West, 179 F.3d 1378, 1380 (Fed. 
Cir. 1999)).
    Judicial decisions have recognized that CUE applies only to final 
administrative decisions. See, e.g., Richardson v. Nicholson, 20 
Vet.App.

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64, 70-71 (2006) (stating that ``CUE must be based on a final 
adjudication'' and citing the definition of ``finally adjudicated 
claim'' in 38 CFR 3.160(d)); see also Cook v. Principi, 318 F.3d 1334, 
1342 (Fed. Cir. 2002).
    Further, CUE is a specific and rare kind of error, requiring the 
claimant to demonstrate three elements: (1) The error must be of a 
specific type--``either the correct facts, as they were known at the 
time, were not before the adjudicator or the statutory or regulatory 
provisions extant at the time were incorrectly applied;'' (2) the error 
must be ``undebatable;'' and (3) the error must undebatably be outcome-
determinative, meaning that the error would have ``manifestly changed 
the outcome'' at the time it was made. Willsey v. Peake, 535 F.3d 1368, 
1371 (Fed. Cir. 2008) (citing Cook, 318 F.3d at 1344 and Russell v. 
Principi, 3 Vet.App. 310, 313-14 (1992)); see also Cushman v. Shinseki, 
576 F.3d 1290, 1301-02 (Fed. Cir. 2009) (error must be outcome 
determinative); Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999) 
(affirming ``manifestly changed outcome'' requirement).
    An error is undebatable if ``no reasonable adjudicator could weigh 
the evidence in the way that the adjudicator did.'' Willsey, 535 F.3d 
at 1372; Russell, 3 Vet.App. at 313-14 (CUE errors must be undebatable, 
such that ``reasonable minds could only conclude that the original 
decision was fatally flawed at the time it was made''). Accordingly, 
CUE cannot be based on a ``disagreement as to how the facts were 
weighed or evaluated.'' Id. at 313.
    The error must be shown based solely on the evidentiary record as 
it existed at the time of the disputed regional office (RO) 
adjudication and the law that existed at the time of subject 
adjudication. Cook, 318 F.3d at 1343-45; Russell, 3 Vet. App. at 314 
(``New or recently developed facts or changes in the law subsequent to 
the original adjudication . . . do not provide grounds for revising a 
finally decided case''); Jordan v. Nicholson, 401 F.3d 1296, 1299 (Fed. 
Cir. 2005) (subsequent change in interpretation of statute not 
applicable to CUE request as to final VA decisions).
    The caselaw also addresses burden of proof issues. As the Court 
stated in Andre v. Principi, `` 'the party bringing a CUE challenge to 
a final RO decision bears the burden of proving that the decision was 
based on a clear and unmistakable error.' '' 301 F.3d. 1354, 1361 (Fed. 
Cir. 2002) (quoting Pierce v. Principi, 240 F.3d 1348,1355 (Fed. Cir. 
2001)). `` `This burden is not satisfied by the mere assertion that the 
decision contained CUE; instead, the party must describe the alleged 
error ``with some degree of specificity'' and must provide persuasive 
reasons `as to why the result would have been manifestly different but 
for the alleged error.' '' Id. (citation omitted). Mere allegations of 
failure to follow regulations or failure to give due process, or any 
other general, non-specific claims of error, are insufficient to raise 
a claim of CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). An allegation 
that the Secretary did not fulfill the duty to assist is insufficient 
to raise the issue of CUE. See, e.g., Crippen v. Brown, 9 Vet. App. 
412, 418 (1996).
    Proposed Sec.  3.105(a)(2) applies to decisions that are not 
finally adjudicated at the agency of original jurisdiction. The 
proposed language reflects current policy and practice with respect to 
matters adjudicated under part 3 of VA's regulations that the outcome 
of a decision will not be revised by another adjudicator in the agency 
of original jurisdiction on his or her own initiative, based on the 
same evidentiary record, unless a determination is made that the 
outcome of the decision is clearly erroneous. This reflects a policy 
decision by VA to restrict the discretion of subsequent adjudicators to 
reverse prior determinations in the absence of new evidence. In 
accordance with new 38 U.S.C. 5104A, the adjudicator may, in 
determining whether the result was clearly erroneous, take into account 
any favorable findings subject to reversal based on clear and 
convincing evidence to the contrary. Determinations under Sec.  
3.105(a)(2) are therefore legally distinct from determinations under 
Sec.  3.105(a)(1) as to whether a final decision should be revised 
based on CUE.
    In addition, VA proposes to amend paragraph (b) to clarify that 
difference of opinion authority is given to VA employees designated to 
complete higher-level reviews to implement the requirement in new 38 
U.S.C. 5104B that a higher-level review is de novo, subject to the rule 
protecting favorable findings. A new paragraph is also added at the end 
of Sec.  3.105 to reflect that VA decisions may now be revised through 
resolution of a timely-filed supplemental claim under 38 U.S.C. 5108 or 
higher-level review under 38 U.S.C. 5104B.
    No changes are necessary to Sec. Sec.  3.105(c) through (h), which 
govern severance of service connection and reduction in evaluations, 
such as reductions in pension payments and reductions in evaluations of 
a service-connected disability. The standards and procedures set forth 
in these paragraphs will continue to apply and an adjudicator 
considering whether to reduce or discontinue an evaluation under Sec.  
3.105 is not bound under the ``favorable finding'' rule in new section 
5104A of the statute that protects findings relating to a disability 
evaluation for a particular period of time but does not preclude a 
subsequent finding that the disability thereafter improved.
    Rating evaluations and pension awards are running awards, resulting 
in recurring payments being made subsequent to an initial award. See, 
e.g., Dent v. McDonald, 27 Vet.App. 362, 372 (2015) (pension is a 
``running award,'' meaning ``recurring payments made subsequent to an 
initial award''). Changes in the underlying facts that led to the 
original award may warrant a discontinuance or reduction of a running 
award. See, e.g., 38 U.S.C Sec.  5112 (governing effective dates of 
reductions and discontinuances); 38 CFR 3.273 (describing monthly 
pension as a ``running award'' and requiring adjustment when there is a 
change in income); Sec.  3.105 (noting that the provisions regarding 
the date of discontinuance of awards are applicable to running awards 
such as monthly pension and those based on disability evaluations); 
Sec.  3.344 (governing disability evaluation reductions on the basis of 
medical reports showing improvement in a service-connected condition). 
Determinations of whether a running award should be adjusted are based 
on different facts for a different time period than that for which the 
initial award was made. Accordingly, a determination of the appropriate 
level of a running award made in an initial decision is a finding 
different than a later finding as to whether the previously assigned 
level should be reduced or discontinued. Therefore, an adjudicator 
considering whether to reduce or discontinue an evaluation under Sec.  
3.105 is not assessing prior entitlement under the initial award of 
disability evaluation and is not bound by prior ``favorable findings'' 
under section 5104A of the statute. No change to the standards and 
procedures in Sec. Sec.  3.105(c) through (h) is therefore required.

Sec.  3.151 Claims for Disability Benefits

    Public Law 115-55 added 38 U.S.C. 5104C, which outlines the 
available review options following a decision by the agency of original 
jurisdiction. VA proposes to amend Sec. Sec.  3.2500 and 3.151 
consistent with the statute to provide that a claimant may request one 
of the three review options under Sec.  3.2500 (higher-level review, 
supplemental

[[Page 39822]]

claim, appeal to the Board) for each issue decided by VA, consistent 
with new 38 U.S.C 5104C. A claimant would not be limited to choosing 
the same review option for a decision that adjudicated multiple issues.
    Proposed Sec.  3.151(c) defines an issue for this purpose as an 
adjudication of a specific entitlement. For example, with respect to 
service-connected disability compensation, an issue would be 
entitlement to compensation for a particular disability (and any 
ancillary benefits). This definition of ``issue'' is consistent with 
the definition of issue in Sec.  20.1401(a), as interpreted by the U.S. 
Court of Appeals for Veterans Claims. See Hillyard v. Shinseki, 24 Vet. 
App. at 353 (equating the term issue with a ``claim'' and ``not a 
theory or an element of a claim,'' citing Disabled American Veterans, 
234 F.3d at 693). The option to select different review lanes would not 
extend to specific components of the same entitlement claim, because 
allowing a claim to be splintered into several pieces for review, each 
potentially subject to different evidentiary rules and timelines, would 
render the new review system unworkable, risk self-contradictory 
decision-making by VA, and defeat Congressional intent to streamline 
the review process and reduce processing times.
    A simple hypothetical serves to illustrate VA's intent. Suppose a 
claimant seeks disability compensation for a knee disability, and for a 
mental disorder. Once the claimant receives an initial decision on 
both, it is permissible for the claimant to elect to place the knee 
issue and the mental disorder issue in separate lanes under the new 
appeals system. The claimant may not, however, challenge the effective 
date assigned for the knee in one lane, and simultaneously challenge 
the assigned degree of disability for the knee in another lane.
    In addition, VA proposes to include a new paragraph, Sec.  
3.151(d), providing that the evidentiary record for a claim closes upon 
issuance of notice of a decision on the claim. This provision is 
similar to proposed Sec.  3.103(c).

Sec.  3.155 How To File a Claim

    VA proposes to amend Sec.  3.155, regarding the procedures for 
filing a claim, to make those procedures applicable to supplemental 
claims under Public Law 115-55, except for the ``intent to file'' 
provisions found in Sec.  3.155(b). For example, this amendment would 
apply existing procedures in Sec.  3.155(c) regarding the filing of 
incomplete claim forms to supplemental claims. Accordingly, incomplete 
supplemental claim forms would be considered filed on the date of 
receipt if a complete supplemental claim is submitted within one year 
of the filing date of the incomplete claim.
    However, the ``intent to file'' provisions in Sec.  3.155(b), would 
not be applied to supplemental claims. The new statutory framework 
provides that a claimant can maintain the effective date of a potential 
benefits award by submitting a request for review under any of the 
three new lanes within one year of the date of the decision denying 
benefits. Consistent with this requirement, the intent to file 
provisions of Sec.  3.155(b) would not apply to supplemental claims as 
this provision would allow for the submission of a supplemental claim 
beyond the one-year period provided by statute for protection of 
effective dates.

Sec.  3.156 Receipt of New Evidence

    VA proposes to amend Sec.  3.156 to include reference to 
supplemental claims based on new and relevant evidence as provided in 
Public Law 115-55 and to clarify when a supplemental claim may be 
filed. For supplemental claims received after the effective date, VA 
proposes new Sec.  3.156(d) to replace the ``new and material'' 
evidence element, which is currently required under Sec.  3.156(a) for 
requests for VA to reopen a finally adjudicated claim, with the more 
liberal ``new and relevant'' evidence standard in section 2(i) of 
Public Law 115-55. As noted in the House of Representatives Committee 
Report (H. Rept.115-135, May 19, 2017, page 3), Congress's intent 
``behind the change is to lower the current burden'' to have a claim 
readjudicated based on new evidence. Public Law 115-55 defines 
``relevant evidence'' under 38 U.S.C. 101(35) as ``evidence that tends 
to prove or disprove a matter in issue.'' This new standard reduces a 
claimant's threshold in identifying or submitting evidence as part of a 
supplemental claim. Proposed Sec.  3.156(d), regarding supplemental 
claims, includes a reference to new Sec.  3.2501 which provides further 
details regarding the filing and adjudication of supplemental claims 
and the ``new and relevant'' evidence standard.
    VA proposes to maintain the ``new and material'' evidence standard, 
found in 38 U.S.C. 5108 prior to the enactment of Public Law 115-55, in 
subsection (a) as the standard for requests to reopen finally 
adjudicated legacy claims where the request to reopen was decided prior 
to the applicability date of the new law. Claims to reopen that were 
filed, but not initially adjudicated, prior to the effective date will 
be adjudicated under the more favorable ``new and relevant'' standard 
applicable to supplemental claims. In addition, a supplemental claim 
subject to the more favorable standard may be filed after the effective 
date of the modernized review system, even with respect to legacy 
claims finally adjudicated prior to the effective date of the new 
system.
    Under the new framework, the agency of original jurisdiction will 
take action on new evidence that is received with an application for a 
supplemental claim, or received or obtained prior to issuance of a 
decision on the supplemental claim. As indicated in the explanation of 
proposed Sec.  3.103, the record closes upon issuance of a notice of 
decision on the claim, subject to reopening upon certain later events. 
Therefore, VA proposes to limit the applicability of the current rule 
under paragraph (b), allowing for the submission of new and material 
evidence during the appeal period, to pending legacy claims that are 
not subject to the modernized review system.

Sec.  3.159 Department of Veterans Affairs Assistance in Developing 
Claims

    38 U.S.C. 5103(a) requires VA to provide notice to a claimant of 
the information or evidence necessary to substantiate the individual's 
claim for benefits. Public Law 115-55 revised section 5103 to state 
that this notice requirement applies to initial and supplemental 
claims; however, VA is not required under the statute to provide that 
notice with respect to a supplemental claim filed within one year of an 
agency of original jurisdiction or Board decision on an issue. VA 
proposes to amend Sec.  3.159 to include this exception.
    VA also proposes to require VA to assist a claimant who reasonably 
identifies existing records in connection with a supplemental claim, as 
required under 38 U.S.C. 5108(b). VA proposes to further amend Sec.  
3.159 to clarify that VA's duty to assist in the gathering of evidence 
begins upon receipt of a substantially complete application for an 
initial or supplemental claim and ends once VA issues a decision on the 
claim. The definition of a substantially complete application in 3.159 
has been amended to add the requirement that a supplemental claim 
application include or identify potentially new evidence and that a 
higher-level review request identify the date of the decision for which 
review is sought. VA's duty to assist is reinstated when a 
substantially complete initial claim or supplemental claim is filed or 
when a claim is returned to correct a ``duty to assist'' error in a 
prior decision as required by

[[Page 39823]]

38 U.S.C 5103A(f) as amended by Public Law 115-55.

Sec.  3.160 Status of Claims

    Public Law 115-55 deleted the reference in 38 U.S.C 5103(a) to a 
claim for reopening or a claim for increase and replaced it with 
reference to a ``supplemental claim.'' Based on this change in 
terminology, VA proposes to update several sections in part 3 to 
replace the term ``reopened claim'' with ``supplemental claim.'' 
Claimants may request review of VA's decision by submitting a 
supplemental claim after a decision by the VBA, the Board, or the Court 
of Appeals for Veterans Claims. VA proposes to update paragraph (e) to 
reflect the requirement that as of the applicability date of the new 
law, VA will no longer accept requests to ``reopen'' claims and a 
claimant must file a supplemental claim under Sec.  3.2501 to seek 
review of a finally adjudicated claim for a previously disallowed 
benefit.
    VA proposes to clarify the definition of ``finally adjudicated 
claim'' for decision notices issued on or after the effective date, to 
be consistent with 38 U.S.C. 5104C, added by Public Law 115-55. With 
the new claims and appeals system, a claim is considered finally 
adjudicated at the expiration of the period to file a review option 
following notice of a decision by the agency of original jurisdiction, 
the Board, or the Court of Appeals for Veterans Claims. If an appeal is 
timely filed from a decision of the Court of Appeals for Veterans 
Claims, a claim is finally adjudicated upon its disposition on judicial 
review. During the time period for seeking review, a claimant may elect 
one of the three new review options depending on the type of decision 
issued as outlined in 38 U.S.C. 5104C. Once the period to seek review 
expires, an issue is considered finally adjudicated and a claimant 
loses the effective date protections associated with continuous pursuit 
of an issue. At that point, the claimant may seek review of the 
decision by filing a supplemental claim or a request to revise the 
final decision based on clear and unmistakable error under Sec.  
3.105(a)(1).
    VA proposes to amend the definition of complete claim to add a 
requirement applicable to supplemental claims, in part to implement the 
duty to assist requirements under 38 U.S.C. 5108(b). In order for a 
supplemental claim to be considered complete and filed, it must 
identify or include potentially new evidence. Identification of 
potentially new evidence would trigger VA's duty to assist under 
Sec. Sec.  3.2501 and 3.159(a)(3). Without that baseline level of 
information, the complete claim standard will not have been met for 
purposes of claim initiation of a supplemental claim. VA believes this 
baseline level of substantive specificity is necessary in order to 
minimize the possibility that claimants can effectively keep a claim 
stream alive indefinitely by repeatedly asserting that they will submit 
or identify new and relevant evidence at some future date, never doing 
so, and then repeating the process once VA issues a decision. However, 
we emphasize that the claim would be considered ``complete'' for claim 
initiation purposes, and VA's duty to assist accordingly triggered, 
when the claimant identifies evidence within the scope of VA's duty to 
assist to obtain. It would not be required that VA actually obtain the 
evidence, or make a finding that new and relevant in fact has been 
secured, prior to recognizing that a supplemental claim has in fact 
been filed.

Sec.  3.161 Expedited Claims Adjudication Initiative--Pilot Program

    VA proposes to remove and reserve Sec.  3.161, which addresses the 
Expedited Claims Adjudication (ECA) Initiative Pilot Program as this 
program is no longer in use and will not continue based on changes to 
the claims and appeals processes under Public Law 115-55. VA launched 
the ECA Initiative Program on February 2, 2009. The two-year pilot 
program was designed to accelerate claims and appeals processing. 
Participation in the ECA Initiative was strictly voluntary and limited 
to claimants who resided within the jurisdiction of the Nashville, 
Lincoln, Seattle, or Philadelphia Regional Offices (ROs). VA concluded 
the ECA pilot program in 2013.

Sec.  3.328 Independent Medical Opinions

    Public Law 115-55 repealed 38 U.S.C. 7109, which authorized the 
Board to obtain independent medical opinions (IMOs). This repeal 
removed the ability for the Board to request IMOs. Under 38 U.S.C. 
5103A(f)(2) and 5109(d), as added by Public Law 115-55, the Board will, 
when deemed necessary, direct the agency of original jurisdiction to 
obtain an IMO. VA proposes to amend Sec.  3.328 to include a 
requirement that VBA process IMO instructions received from the Board.

Sec.  3.400 General

    VA proposes to amend Sec.  3.400 to incorporate the new rule that a 
claimant may protect their initial filing date for effective date 
purposes if they continuously pursue a claim as outlined in 38 U.S.C. 
5110(a), as amended by Public Law 115-55. VA will consider the date of 
receipt of the initial claim when determining the effective date for 
any benefits that VA may award under a continuously pursued claim. VA 
provides a reference to Sec.  3.2500 where this is further defined.
    VA proposes to limit the applicability of the rules regarding new 
and material evidence and reopened claims as VA will no longer accept 
or process claims to reopen claims received after the effective date of 
the new law.

Sec.  3.2400 Applicability of Modernized Review System

    Proposed Sec.  3.2400 defines which claims are processed under the 
new review system and which clams are processed under the legacy 
appeals system. Public Law 115-55, section 2(x), provides generally 
that the new review system will apply to all claims for which a notice 
of decision is provided by the agency of original jurisdiction on or 
after the later of (a) 540 days from the date of enactment, which falls 
on February 14, 2019, or (b) 30 days after the date on which the 
Secretary certifies to Congress that VA is ready to carry out the new 
appeals system. Proposed Sec.  19.2(a) refers to this date as the 
``effective date'' of the new review system. Proposed Sec.  
3.2400(a)(1) implements the statutory definition and clarifies that the 
new review system applies when an ``initial'' decision is provided 
after the effective date. The term ``initial decision'' in this context 
refers to the initial decision on each claim for entitlement to a 
particular benefit, not the first decision that was ever issued by VA 
for a claimant.
    Proposed Sec.  3.2400 also clarifies that the new review system 
will generally apply to initial decisions provided on or after the 
effective date denying requests to revise a decision by the agency of 
original jurisdiction based on clear and unmistakable error (CUE). Such 
requests are not ``claims'' subject to Public Law 115-55, because the 
requester is not pursuing a claim for benefits pursuant to part II or 
III of Title 38 of the U.S. Code. Livesay v. Principi, 15 Vet. App. 
165, 178-179 (2001). Nevertheless, VA will, as a matter of discretion, 
allow the requestor to elect review of such decisions in the higher-
level review lane in addition to the option to appeal to the Board. A 
supplemental claim may not be filed with respect to a CUE request since 
revision of a decision for CUE cannot be based on new evidence.
    The proposed regulation also recognizes, in subsection (c), that 
some claimants who received a notice of decision prior to the effective 
date, defined as legacy claimants, may have

[[Page 39824]]

opted-in to the new review system prior to the effective date and that 
some may do so after the effective date. Prior to the effective date, 
some claimants are able to opt-in to the new review system under a VA 
test program known as the Rapid Appeals Modernization Program (RAMP), 
which is being carried out pursuant to section 4(a) of Public Law 115-
55. Qualifying claimants can choose either the higher-level review lane 
or the supplemental claim lane to pursue review of their claims. Those 
claimants who opt-in under RAMP have received, or will receive, a 
notice of decision conforming with the enhanced decision notice 
requirements of Public Law 115-55 and advising the claimant regarding 
the review options available under the new system. Upon the effective 
date, those claims will continue to be processed under the new 
framework as implemented by final regulations.
    Proposed subsection (c) provides, in accordance with section 
2(x)(5) of Public Law 115-55, that, after the effective date, legacy 
claimants may opt-in to the new review system after VA issues a 
Statement of the Case or Supplemental Statement of the Case. Claimants 
may do so by filing for one of the review options under the new system 
on a form prescribed by VA within the time allowed to file a 
substantive appeal to the Board under the legacy appeals system. A 
claimant may not elect to pursue review under both the legacy and 
modernized review systems with respect to a particular claim.

Sec.  3.2500 Review of Decisions

    In the legacy appeals process, claimants who are dissatisfied with 
the initial decision on their claim are given only one avenue to seek 
review of that decision. Public Law 115-55 created a new claims and 
appeals process with several different review options for pursuing VA 
benefits. Congress added 38 U.S.C. 5104C to provide claimants with 
streamlined choices within the agency of original jurisdiction and 
through an appeal to the Board. VA proposes to add Sec.  3.2500 to part 
3, subpart D, to implement the new review options and set forth the 
rules that apply to those options under new 38 U.S.C. 5104C. In line 
with the statutory requirements, VA proposes to allow a claimant to 
file for one of the three review options upon receipt of a decision by 
the agency of original jurisdiction on an initial claim. Under proposed 
Sec.  3.2500(b), a claimant would be able to elect a different review 
option for each different issue adjudicated in the decision. The term 
``issue'' is defined in Sec.  3.151(c) as a distinct determination of 
entitlement to a benefit, such as a determination of entitlement to 
service-connected disability compensation for a particular disability.
    Proposed Sec.  3.2500(b) provides that a claimant may not elect to 
have the same issue reviewed concurrently under different review 
options, consistent with new 38 U.S.C. 5104C(a)(2)(A). Proposed Sec.  
3.2500(d) implements new 38 U.S.C. 5104C(a)(2), providing that 
claimants may switch between the different review options. A claimant 
or the claimant's duly appointed representative may, for example, 
withdraw a request for higher-level review or a supplemental claim at 
any time prior to VA issuing notice of decision. If the withdrawal 
takes place within the one year period following notice of the decision 
being reviewed, a claimant may timely elect another review option to 
continuously pursue the claim and preserve potential entitlement to 
benefits effective as of the date of the initial claim.
    Under new 38 U.S.C. 5104C, after receiving notice of a decision on 
an issue, claimants generally have up to one year to submit new and 
relevant evidence with a supplemental claim, request a higher-level 
review, or file an appeal to the Board to preserve the effective date 
associated with their initial claim. If a claimant remains dissatisfied 
with the decision on review, depending on the type of review requested, 
he or she would still have the option to file another review request. 
The review options available to a claimant after a decision on each 
type of review are set forth in Sec.  3.2500(c). Paragraph (g) contains 
effective date protections for continuously pursued claims and the 
effective date rule for supplemental claims filed more than one year 
after notice of a decision (i.e., where the underlying claim is finally 
adjudicated). For example, a claimant who receives an unfavorable 
decision on a higher-level review request may submit a supplemental 
claim with new and relevant evidence or appeal to the Board within one 
year of the decision notice date to protect the effective date. If, 
following a further denial, the claimant elects to file a supplemental 
claim with new and relevant evidence within one year of the decision 
notice date and VA grants the benefit sought, VA will consider this to 
be a continuously pursued claim and continue to base the effective date 
of an award on the filing date of the initial claim.
    VA proposes to include a paragraph in Sec.  3.2500 that limits the 
review option available to parties to a simultaneously contested claim 
(contested claim) to the filing of a Notice of Disagreement with the 
Board. A contested claim is defined in VA regulations as a situation in 
which the allowance of one claim results in the disallowance of another 
claim involving the same benefit or the payment of a lesser benefit to 
another claimant. 38 CFR 20.3(p). For example, two people may claim 
entitlement to the same benefit, such as in the situation where two 
people claim entitlement to a death benefit as the surviving spouse.
    In this situation, Congress has provided for different adjudication 
rules aimed at speeding resolution of the dispute. Prior to Public Law 
115-55, the statutory time frame to appeal a decision by the agency of 
original jurisdiction in such cases was 60 days rather than the normal 
one year period. 38 U.S.C. 7105A. This required review to be initiated 
for all contested claims within 60 days and clearly reflected an intent 
that contested claims be resolved more quickly than ordinary claims.
    In Public Law 115-55, Congress maintained the 60 day time period 
for filing a Notice of Disagreement to appeal a decision of the agency 
of original jurisdiction, but did not address how contested claims 
should be handled with respect to the newly available review lanes at 
the agency of original jurisdiction, for which the filing deadline is 
one year. This is problematic for the following reasons: (1) While the 
new system provides claimants with the right to select from three 
different review lanes, it is literally impossible to provide this 
right to each claimant in a contested claim, because the claimants' 
choice of review lanes may conflict (we note that both claimants may 
disagree with a particular determination in a contested claim, such as 
the amount of an apportionment under Sec.  3.450); (2) while the new 
system protects favorable findings from being overturned in the absence 
of clear and convincing evidence to the contrary, a finding may be 
favorable to one claimant but unfavorable to the other, thus making it 
literally impossible to afford each claimant this right; (3) the review 
period for choosing the Board review lane (through filing a Notice of 
Disagreement) would be 60 days for a contested claim, but the review 
period for choosing higher-lever review or filing a supplemental claim 
would be one year, thereby significantly undermining the impact of the 
60 day time period for filing a Notice of Disagreement on achieving a 
faster resolution of the claim. As a result, it appears that Congress 
either did not envision that contested claims would be

[[Page 39825]]

governed by the three-lane review system or simply neglected to address 
this issue, leaving a gap for VA to fill. See, e.g., Ramsey v. 
Nicholson, 20 Vet.App. 16, 30 (2006) (refusing to literally apply the 
statutory requirement that appeals at the Board be considered and 
decided in docket order because, despite the arguably plain meaning of 
the statute, literal application would produce an absurd result, or at 
least a result at odds with the intention of the drafters, ``when 
considering the statute's overall structure and concepts relating to 
effective review of appeals'').
    VA proposes to fill the gap left by the statute by limiting the 
review option available to a contested claimant to filing a Notice of 
Disagreement with the Board within 60 days of issuance of the decision 
of the agency of original jurisdiction. Simultaneously contested claims 
thus would be excepted from the general one year review period in Sec.  
3.2500. VA believes that this is a reasonable way to effectuate 
congressional intent that the review process for a contested claim be 
designed to achieve faster resolution of the claim. It also reduces the 
opportunity for one claimant to prevent the payment of benefits to 
another claimant by delaying action on filing for review of a decision 
favorable to the other claimant or by filing successive supplemental 
claims based on marginally relevant evidence. If either claimant 
discovers new evidence, the claimant may, under the new system, file 
such evidence in connection with an appeal to the Board. In addition, 
under the new system, initial decisions by the agency of original 
jurisdiction are required to contain more detailed information 
regarding the basis of the decision, reducing the need for further 
decisions by the agency of original jurisdiction to provide more 
information.

Sec.  3.2501 Supplemental Claims

    VA proposes to add a new section to part 3, subpart D, to explain 
the rules that govern the supplemental claim review option required by 
38 U.S.C. 5108 as amended by Public Law 115-55. Claimants may request 
review of VA's decision by submitting a supplemental claim after a 
decision by the VBA, the Board, or the Court of Appeals for Veterans 
Claims. Public Law 115-55 amended 38 US.C. 5108(a) to prescribe that VA 
will re-adjudicate a claim when new and relevant evidence is presented 
or secured with respect to a supplemental claim. VA proposes to include 
in Sec.  3.2501 the requirement that new and relevant evidence must 
accompany a supplemental claim or be submitted or secured while a 
supplemental claim is pending for VA to take action on the evidence and 
readjudicate the claim.
    VA proposes to include a requirement that a claimant file a 
supplemental claim on a form prescribed by the Secretary and that the 
duty to assist in gathering new and relevant evidence will be triggered 
upon the filing of a substantially complete application. As provided in 
proposed amendments to Sec.  3.159(a)(3) and Sec.  3.160(a), a 
substantially complete or complete supplemental claim application must 
identify or include potentially new evidence. An incomplete claim will 
be considered filed on the date of receipt if the complete application 
is filed within a year, consistent with Sec.  3.155. The new statutory 
framework provides one year for submission of a request for review 
under any of the three new lanes. Consistent with this requirement, the 
intent to file provisions of Sec.  3.155(b) would not apply to 
supplemental claims. This new section will also address the evidentiary 
record for supplemental claims, consistent with proposed Sec.  
3.151(d).

Sec.  3.2502 Returns by Higher-Level Adjudicator or Remand by the Board 
of Veterans' Appeals

    VA proposes to add Sec.  3.2502 to part 3, subpart D, to implement 
the requirement in new 38 U.S.C. 5109B for expedited processing of 
claims returned from a higher-level adjudicator and remands from the 
Board. Upon receipt of a returned claim or remand by the Board, the 
agency of original jurisdiction will take immediate action to expedite 
readjudication of the claim in accordance with new 38 U.S.C. 5109B. The 
agency of original jurisdiction will retain jurisdiction of the claim. 
In readjudicating the claim, the adjudication activity will correct all 
identified duty to assist errors, complete a new decision and issue 
notice to the claimant and or his or her legal representative in 
accordance with Sec.  3.103(f). For all issues readjudicated, the 
effective date of any evaluation and award of pension, compensation, or 
dependency and indemnity compensation will be determined in accordance 
with the date of receipt of the initial claim as prescribed under 
proposed Sec.  3.2500(g).

Sec.  3.2600 Legacy Review of Benefit Claims Decisions

    Current Sec.  3.2600 governs certain aspects of review under the 
legacy system, for claims in which a Notice of Disagreement is filed on 
or after June 1, 2001. VA proposes to amend Sec.  3.2600 to make clear 
that this section only applies to legacy claims as defined in Sec.  
3.2400 and not to claims that are processed under the new review 
system. VA plans to implement the new claims and appeals system on 
February 14, 2019. Claimants who receive decisions prior to the 
effective date of the new system will have the option to file an appeal 
under the legacy process, in which case Sec.  3.2600 will apply. In 
general, the agency of original jurisdiction will stop accepting 
Notices of Disagreement for legacy claims one year after the effective 
date of the final rule implementing the new claims and appeals system, 
subject to extension of the filing period for good cause in individual 
cases.

Sec.  3.2601 Higher-Level Review

    VA proposes to add a new section to part 3, subpart D, to implement 
the rules that govern the higher-level review option required by 38 
U.S.C. 5104B. This new section explains the requirements for electing a 
higher-level review, describes the type of agency of original 
jurisdiction employees who will conduct the review, and addresses the 
review process.
    Under 38 U.S.C. 5104B, a claimant in the modernized review system 
may request a higher-level review of a decision on a claim by the 
agency of original jurisdiction during the one year period to seek 
review following issuance of the notice of decision. The higher-level 
review option gives claimants a second look at their claims, but that 
review is based solely on the same evidence that was before the initial 
adjudicator. The higher-level review is conducted by a different 
experienced VA employee with the ability to change the initial decision 
based on difference of opinion authority, subject to the rule that 
favorable findings are binding absent clear and convincing evidence to 
the contrary. The higher-level review provides the opportunity for 
resolution of the issue(s) in dispute at the agency of original 
jurisdiction without having to file an appeal to the Board, or having 
to submit a supplemental claim with new and relevant evidence.
    The higher-level review consists of a closed evidentiary record and 
does not allow for the submission of new evidence or a hearing. While 
the closed evidentiary record does not allow for submission of new 
evidence, VA proposes to provide claimants and/or their representatives 
with an opportunity to speak with the higher-level adjudicator and 
point out any specific errors in the case as part of the higher-level 
review. VA has utilized an informal conference as part of the

[[Page 39826]]

Decision Review Officer review in the current legacy appeals process. 
VA has received positive feedback on providing claimants and/or their 
representatives an opportunity to speak directly with the decisionmaker 
for the claim. To further support this level of engagement, VA proposes 
to include the availability of an informal conference with a higher-
level adjudicator in the new Sec.  3.2601. The sole purpose of an 
informal conference is to provide a claimant or his or her 
representative with an opportunity to talk with the higher-level 
adjudicator so that the claimant and/or his or her representative can 
identify errors of fact or law in the prior decision. To comply with 
the statutory requirement of a closed evidentiary record, VA would not 
allow claimants or representatives to supplement the evidentiary record 
during the informal conference through the submission of new evidence 
or introduction of facts not present at the time of the prior decision. 
VA proposes to make efforts to contact a claimant or his or her 
representative, when requested, telephonically and to honor all 
requests for informal conferences unless determined not feasible in an 
individual case, such as when VA, after reasonable efforts, is unable 
to make contact with the claimant or his or her representative.
    VA proposes to include a paragraph that explains the requirement 
for expedited processing of all identified duty to assist errors. VA 
has a statutory duty to assist claimants in gathering evidence in 
support of a claim for benefits. Under 38 U.S.C. 5103A(f), if the 
higher-level adjudicator discovers a duty to assist error, the claim 
returns to the adjudication activity for correction unless the higher-
level adjudicator determines that it would be appropriate for VA to 
grant the maximum benefit for the claim. In accordance with 38 U.S.C. 
5109B, VA proposes to include a rule requiring expedited processing to 
correct these types of errors and to define ``maximum benefit'' for 
disability compensation as the maximum scheduler evaluation for the 
issue, and for other types of benefits, the granting of the benefit 
sought.
    Because the filing date of a request for higher-level review is 
relevant to maintaining the effective date of any award, VA proposes to 
include provisions for determining the filing date that are similar to 
the provisions in Sec.  3.155 that apply to applications for benefits.

Part 8--National Service Life Insurance

    To comply with Public Law 115-55, VA proposes to amend 38 CFR 8.30 
to allow applicants for insurance coverage and/or claimants for 
insurance proceeds (both hereafter referred to as claimants) who 
disagree with (1) denials of applications for insurance, total 
disability income provision, or reinstatement; (2) disallowances of 
claims for insurance benefits; and/or (3) decisions holding fraud or 
imposing forfeiture to receive either a higher-level review, 
supplemental claim review, or Board review.
    VA has consolidated all life insurance activity at a single office 
located in Philadelphia, PA. This office has original jurisdiction over 
all life insurance applications and claims for proceeds received in 
conjunction with life insurance programs administered by VA. Because 
insurance expertise and processing is consolidated at the Philadelphia 
office, higher level reviews and supplemental claims will be processed 
by employees at the Philadelphia office. Selection of an employee to 
conduct a higher-level review is at VA's discretion. The VA Insurance 
Service will assign higher-level reviews to employees who are 
experienced decision-makers who did not participate in the prior 
decision. The VA Insurance activity would make reasonable efforts to 
honor requests for informal conferences as part of a higher-level 
review, consistent with proposed 3.2601(h). As noted in proposed Sec.  
3.2601(h), claimants are responsible for any costs they incur in 
conjunction with an informal conference. This proposed rule would not 
limit the option of pursuing actions under 38 U.S.C. 1984.

Part 14--Legal Services, General Counsel, and Miscellaneous Claims

    Under 38 U.S.C. chapter 59, the Secretary of Veterans Affairs has 
authority to recognize VSOs and their representatives as well as 
attorneys and agents for the preparation, presentation, and prosecution 
of benefit claims, prescribe the rules of conduct applicable while 
providing claims assistance, and regulate fees charged by accredited 
attorneys and agents.
    VA proposes to make several revisions to the regulations contained 
in part 14, Title 38 of the Code of Federal Regulations, regarding: 
Accreditation of attorneys, agents, and VSO representatives; 
representation of claimants before VA; and fees charged by attorneys 
and agents for representation. The proposed revisions will address the 
recent changes in law enacted by Public Law 115-55, address a few 
discrepancies relating to the appellate process in the current 
regulations, and further clarify the rules.
    While Public Law 115-55 sets out ``to reform the rights and 
processes relating to appeals of decisions regarding claims for 
benefits under the laws administered by the Secretary of Veterans 
Affairs,'' the accreditation and fee regulations contained in part 14 
are focused exclusively on accreditation of attorneys, agents, and VSO 
representatives; representation of claimants before VA; and fees 
charged by attorneys and agents for representation. Although VA 
recognizes that certain changes to part 14 are needed to reflect the 
new law, which changes the starting point at which fees for 
representation may be charged and changes in the appellate structure 
for deciding benefit claims, VA does not believe that the provisions of 
the appeals reform law prescribing processes for ``claims for 
benefits'' directly apply to adjudications of VA accreditation and 
attorney/agent fee matters. See 38 U.S.C. 5904; 38 CFR 14.626-14.637.

Section 14.629--Requirements for Accreditation of Service Organization 
Representatives; Agents; and Attorneys

    Current Sec.  14.629 contains an introductory paragraph describing 
the process within the Office of General Counsel for evaluating whether 
an applicant for accreditation meets the qualifications for becoming 
accredited by VA and for appealing decisions denying accreditation. VA 
proposes to move that paragraph from the beginning of 14.629 to a new 
paragraph, proposed paragraph (d), to improve the readability of the 
section.
    In addition, VA proposes to modify the substance of the current 
introductory paragraph when relocating it in paragraph (d) to state 
that a denial of accreditation by the Chief Counsel is a final 
adjudicative determination of an agency of original jurisdiction that 
may only be appealed to the Board. The provision currently states that 
decisions denying accreditation may be appealed to the General Counsel 
and denials by the General Counsel are ultimately appealable to the 
district courts under the Administrative Procedures Act (APA). This 
provision reflects VA's prior position that a decision denying 
accreditation is not a ``decision by the Secretary under a law that 
affects the provision of benefits by the Secretary to veterans or the 
dependents or survivors of veterans,'' 38 U.S.C. 511(a), and, 
therefore, is not appealable under the system enacted by the Veterans 
Judicial Review Act (VJRA). See 38 U.S.C. 7104(a). While recognizing 
that the United States Court of Appeals for the Federal Circuit 
(Federal Circuit) had

[[Page 39827]]

concluded that decisions suspending or cancelling accreditation are 
appealable under the VJRA, VA had previously distinguished decisions 
denying accreditation. Accreditation of Agents and Attorneys; Agent and 
Attorney Fees, 73 FR 29852, 29853-54 (May 22, 2008).
    However, upon further reflection in light of decisions by the 
Federal Circuit and other Federal courts broadly construing the VJRA's 
exclusive jurisdictional scheme, VA now concludes that decisions 
denying accreditation also fall within the scope of that exclusive 
review scheme. This conclusion ensures consistency with respect to the 
applicable law and other decisions relating to accreditation, and thus 
comports with a central purpose of the VJRA's exclusive review scheme, 
i.e., to promote a uniform body of jurisprudence on matters related to 
VA benefits. Therefore, proposed Sec.  14.629(d)(2)(ii) would shift the 
authority to issue the decision on appeal from the General Counsel to 
the Board.
    The basis for permitting an appeal to the Board is grounded in 38 
U.S.C. 511, which applies to decisions ``under a law that affects the 
provision of benefits by [VA] to veterans or the dependents or 
survivors of veterans.'' 38 U.S.C. 511(a). The Federal Circuit has 
construed section 511 to extend beyond matters relating to claims for 
benefits, including to accreditation-related decisions. Cox v. West, 
149 F.3d 1360, 1365 (Fed. Cir. 1998) (That ``the decision of the 
regional office did not affect a veteran's benefits is not the point. 
The relevant issue under section 511(a) is whether the decision 
necessarily interpreted a law that affects veterans' benefits.''); see 
also Bates v. Nicholson, 398 F.3d 1355, 1359-61 (Fed. Cir. 2005). But 
the Federal Circuit has also held that simply because a decision is 
appealable to the Board does not mean the decision is subject to all 
the same statutory procedures applicable to claims for veterans 
benefits. See DAV v. Gober, 234 F.3d 682, 694-95 (Fed. Cir. 2000) 
(demonstrating that certain appealable matters are not governed by all 
of the same provisions that apply to regular claims for veterans 
benefits).
    Notably, in Public Law 115-55, Congress specifically identified 
``decisions regarding claims for benefits,'' and did not include all 
decisions that are appealable to the Board, as being subject to the new 
appellate system. The provisions of Public Law 115-55 pertaining to the 
``supplemental claim'' and ``higher-level review'' options specify that 
they apply to ``claims for benefits'' and to ``claimants,'' which is 
defined in 38 U.S.C. 5100 to refer to a person applying for a 
``benefit'' under laws administered by VA. Id., Sec.  2(a) (defining 
``supplemental claim'' as ``a claim for benefits . . .''), Sec.  2(g) 
and (h) (authorizing a ``claimant'' to elect higher-level review or 
submit a supplemental claim following a decision). VA does not view 
decisions to grant, deny, or otherwise affect accreditation status to 
be decisions ``regarding claims for benefits'' within the meaning of 
Public Law 115-55. VA's interpretation of the statute is consistent 
with the Federal Circuit's interpretation that the statutory provision 
governing removal of accreditation is not itself a law affecting 
benefits. Bates, 398 F.3d at 1360 (``The argument that 38 U.S.C. 
5904(b) is itself a `law that affects the provision of benefits' is 
unpersuasive.''). Accordingly, VA concludes that Public Law 115-55 does 
not require that the full range of modernized review procedures 
available for benefit decisions be extended to decisions regarding 
accreditation of representatives.
    Moreover, revising the current adjudication process for 
accreditation matters simply to mirror the choice and flexibility 
required under Public Law 115-55 for benefits claims is unwarranted. 
Public Law 115-55 is designed to allow claimants for benefits to switch 
between the lanes of review, while still having an option to submit new 
evidence regarding their claims, all while preserving potential 
entitlement to benefits retroactive to the date of the benefits claim 
as long as the matter is pursued continuously. See Public Law 115-55, 
Sec. Sec.  2(h)(1), (2)(l). In contrast, decisions on accreditation 
matters are effective on the date of the decision; therefore, the 
adjudication of these matters does not implicate the same issues as for 
claims for benefits regarding preservation of effective dates. Although 
flexibility and choice are key objectives of the new statutory 
framework with regard to claims for benefits, the paramount concern for 
matters regarding accreditation is ensuring that claimants for benefits 
have competent representation. Therefore, we propose that denials of 
accreditation will only be appealable to the Board.
    Consistent with the proposal in new paragraph (d) to have the Chief 
Counsel make the final decision on an accreditation determination, VA 
proposes to transfer from the General Counsel level to the Chief 
Counsel level the authority under Sec.  14.629(b)(5) to grant or 
reinstate accreditation for an individual who remains suspended in a 
jurisdiction on grounds solely derivative of suspension or disbarment 
in another jurisdiction to which he or she has been subsequently 
reinstated.

Section 14.631--Powers of Attorney; Disclosure of Claimant Information

    In current Sec.  14.631(c), the regulation refers to 38 CFR 20.608. 
However, VA proposes to change that to 38 CFR 20.6 to reflect the 
revisions being proposed by the Board in this rulemaking.

Section 14.632--Standards of Conduct for Persons Providing 
Representation Before the Department

    In current Sec.  14.632, the regulation lists standards of conduct 
by which accredited attorneys, agents, and representatives must abide 
in preparing, presenting, and prosecuting VA benefit claims. VA 
proposes to revise current 14.632(c)(6) to eliminate the specific 
reference to the Notice of Disagreement and to clarify that gifts from 
a VA claimant to a VA-accredited individual are not permitted in any 
situation when a fee could not be lawfully charged. VA proposes to 
change the word ``representation'' to ``services,'' in order to be 
clear that this provision applies to all aspects of claims preparation, 
presentation, and prosecution.

Section 14.633--Termination of Accreditation or Authority To Provide 
Representation Under Sec.  14.630

    VA proposes changes to current Sec.  14.633(e)(2) to clarify that 
when the Chief Counsel closes the record with regard to a suspension or 
cancellation of accreditation, that this is the record before the 
Office of the General Counsel. The rationale for this change is to 
clarify procedures for closure of the record in suspending or 
cancelling an individual's accreditation to ensure that the regulation 
does not contradict changes under the modernized system. Under existing 
law, the record is closed prior to the General Counsel's decision and 
on appeal to the Board, no expansion of the record is permitted unless 
a Board hearing is requested. Under the modernized system, evidence may 
be submitted for the Board to consider in the first instance with or 
without a hearing request. VA proposes this change twice in Sec.  
14.633(e)(2) in order to maintain consistency.
    VA also proposes new language in Sec.  14.633(h)(1) and (2) to 
clarify the procedures for decisions issued before the effective date 
of the modernized review system and on or after that date. In addition, 
in proposed Sec.  14.633(h)(1), VA proposes replacing the reference to 
38 CFR 19.9 with 38 CFR 20.904, to reflect the redesignation in the 
Board's proposed regulations.

[[Page 39828]]

    VA further proposes moving the second sentence in 14.633(h) to a 
new subsection 14.633(j) and adding ``suspension'' to clarify that the 
General Counsel can in fact provide notice of both suspensions and 
cancellations of accreditation. The overall move is intended to provide 
clarity, as the paragraph in which this is currently located otherwise 
addresses appellate rights. The proposed addition fills in a gap in the 
existing regulations. In the preamble to the May 2007 proposed rule on 
Part 14, VA stated that the General Counsel could notify all agencies, 
courts, and bars to which the agent or attorney is admitted to practice 
of suspensions or cancellations, 72 FR 25930, 25933 (May 7, 2007), but, 
in the regulation text, VA only specified cancellation. Id. at 25940; 
see also 73 FR at 29875 (final rule text).
    As discussed above with denials of accreditation, it is neither 
required nor prudent to provide all the same options and safeguards 
that apply to the new appellate system under Public Law 115-55 to 
decisions regarding the suspension or cancellation of accreditation.

Section 14.636--Payment of Fees for Representation by Agents and 
Attorneys in Proceedings Before Agencies of Original Jurisdiction and 
Before the Board of Veterans' Appeals

    Currently, 38 U.S.C. 5904(c)(1) directs that agents and attorneys 
may be paid for services provided after a Notice of Disagreement is 
filed in a case. This is also reflected in current 38 CFR 14.636(c). VA 
proposes language in Sec.  14.636(c)(1)(i) to implement the change in 
section 2(n) of Public Law 115-55 that fees may be charged by an 
accredited agent or attorney upon VA's issuance of notice of an initial 
decision on a claim. In the same subsection of Sec.  14.636, VA 
proposes additional language, based on the effective date provisions in 
section 2(l) of Public Law 115-55, to clarify the relationship between 
section 2(n) of Public Law 115-55 and the new adjudication procedures. 
Specifically, this clarifies whether a decision on a supplemental claim 
is considered a new initial decision, or whether it is part of the 
original adjudication string based on the effective date. The language 
VA proposes makes clear that a decision by an agency of original 
jurisdiction adjudicating a supplemental claim will be considered an 
initial decision on a claim unless the decision is made while the 
claimant continuously pursued the claim by choosing one of the three 
procedural options available under Public Law 115-55.
    In addition, VA proposes to add Sec.  14.636(c)(1)(ii), to clarify 
the effective dates emanating from Public Law 115-55 for attorney fee 
matters based on clear and unmistakable error. The language in proposed 
Sec.  14.636(c)(1)(ii) mirrors the already existing regulatory text at 
current Sec.  14.636(c)(1).
    Next, proposed Sec.  14.636(c)(2)(i) contains minor language edits 
to accommodate for the implementation of the Public Law 115-55. Note 
that, although not specified in the proposed modified subsection, a 
Notice of Disagreement which has been withdrawn to opt in to the 
appeals modernization program will still satisfy the Notice of 
Disagreement requirement under paragraph (c)(2).
    Proposed Sec.  14.636(i)(3) contains language to clarify that when 
the Chief Counsel closes the record in proceedings to review fee 
agreements, this is the record before the Office of the General 
Counsel. VA proposes this minor change in both Sec.  14.636(i)(3) and 
(k) in order to maintain consistency. VA proposes to remove the 
instruction for filing a Notice of Disagreement with the Office of the 
General Counsel because, although that is correct under the legacy 
system, under the modernized appeals system the Notice of Disagreement 
should be filed directly with the Board. The Office of General Counsel 
form with the appellate rights will specify where the Notice of 
Disagreement should be filed. In addition, proposed Sec.  14.636(k) 
contains language similar to that in proposed Sec.  14.633(h), for the 
reasons stated in those sections above, to clarify the procedures for 
decisions issued before the effective date of the modernized review 
system, and on or after that date, the date that Public Law 115-55 is 
scheduled to take effect. As required by Public Law 115-55, VA proposes 
to replace the term ``reopened'' with ``readjudicated'' in several 
places in the proposed Sec.  14.636.
    Finally, because fee matters are simultaneously contested matters 
they are processed under the appellate procedures applicable to 
simultaneously contested claims. See Mason v. Shinseki, 743 F.3d 1370, 
1374 (2014) (holding that disputes regarding eligibility for attorney's 
fees withheld from past-due disability benefits are subject to the 
appeal deadlines for simultaneously contested claims). As explained 
elsewhere in this rulemaking, the additional options provided under 
Public Law 115-55 are not appropriate to simultaneously contested 
matters.
    Moreover, it is clear that decisions on fee matters differ from 
decisions on claims for VA benefits because they ultimately concern 
whether the terms of the private contract should be altered for public 
policy reasons. See Scates v. Principi, 282 F.3d 1362, 1366-66 (finding 
that a contingency percentage agreed upon in a fee contract contains an 
``implicit . . . understanding'' that the representative may not be 
entitled to the full percentage if the claimant terminates the 
representative's services during the case). Compare Public Law 115-55, 
2(h)(1) (providing for three options for review), with 38 U.S.C. 
5904(c)(3) (specifying that a fee reasonableness decision may be 
reviewed by the Board pursuant to section 7104 to determine whether it 
is excessive or unreasonable); and 38 U.S.C. 7263(d) (explaining that 
the Court of Appeals for Veterans Claim's decision with regard to the 
reasonableness of the fee is a final determination that may not be 
reviewed by any other court).

Section 14.637--Payment of the Expenses of Agents and Attorneys in 
Proceedings Before Agencies of Original Jurisdiction and Before the 
Board of Veterans' Appeals

    Proposed Sec.  14.637(d)(3) contains language to clarify that when 
the Chief Counsel closes the record in proceedings to review fee 
agreements, this is the record before the Office of the General 
Counsel. Also, in proposed Sec.  14.637(f), language similar to that in 
proposed Sec. Sec.  14.633(h) and 14.636(k) is proposed to comply with 
Public Law 115-55 and for the reasons stated with respect to those 
sections above. In addition, in Sec.  14.637(d)(3), VA proposes to 
remove the instruction for filing a Notice of Disagreement with the 
Office of the General Counsel for the same reasons as stated in Sec.  
14.636(i)(3).

Part 19--Board of Veterans' Appeals: Appeals Regulations

    VA proposes to restructure and revise 38 CFR part 19. As noted, 
Public Law 115-55 applies to all claims for which notice of decision 
was provided on or after the effective date and to certain claims where 
a notice of decision was provided prior to that date, but the appellant 
opted to subject the claim to the new system. While Public Law 115-55 
is primarily aimed at creating a new claims and appeals adjudication 
system, VA must also provide timely and quality decisions on legacy 
appeals. A legacy appeal is any appeal where the agency of original 
jurisdiction provided notice of a decision prior to the effective date 
and the appellant has not opted to have review of his or her appeal 
completed in the new system. When the new system becomes effective, VA 
will have approximately 500,000 pending

[[Page 39829]]

legacy appeals, and many of these legacy appellants will still be at a 
stage in their appeals where regulations concerning filing forms, 
motions, or other actions will be relevant. Thus, VA proposes to 
preserve and consolidate regulations concerning legacy appeals.
    This proposed rule would make part 19 applicable only to legacy 
appeals; specifically, the processing of legacy appeals by the agency 
of original jurisdiction. Subparts F, G, and J of part 20 would apply 
only to the processing and adjudication of legacy appeals by the Board. 
Except as otherwise provided in specific sections, subparts A, B, H, K, 
L, M, N, and O of part 20 would apply to the processing and 
adjudication of both appeals in the new system and legacy appeals. 
Subparts C, D, E, and I of part 20 would apply only to the processing 
and adjudication of appeals in the new system.
    VA proposes to revise the authority citations for individual 
sections in part 19 and for certain sections in part 20 applicable only 
to legacy appeals to identify the versions of statutes existing prior 
to the effective date of the modernized appeals system, as those 
statutes will continue to apply to legacy appeals.
    Finally, VA proposes minor updates to addresses. This minor change 
is not substantive. Currently, provisions containing the Board's 
address for mail related to appeals direct that mail should be 
addressed to a particular office within the Board. In practice, all 
mail is processed in a central location at the Board and routed to the 
appropriate office internally. Therefore, VA proposes to strike all 
references to specific offices or personnel at the Board in references 
to the Board's address.
    The following distribution table shows where each section of 
current part 19 is proposed to be moved.

------------------------------------------------------------------------
                Old section                          New section
------------------------------------------------------------------------
19.1......................................  20.100.
19.2......................................  20.101.
19.3......................................  20.106.
19.4......................................  20.103.
19.5......................................  20.105.
19.7......................................  20.903; similar in 20.802.
19.8......................................  20.905; similar in 20.804.
19.9......................................  20.904; similar in 20.803.
19.11.....................................  20.1004.
19.12.....................................  20.107.
19.13.....................................  20.108.
19.14.....................................  20.109.
19.27.....................................  Removed.
19.33.....................................  Removed.
19.50.....................................  Removed.
19.51.....................................  Removed.
19.52.....................................  Removed.
19.53.....................................  Removed.
19.75.....................................  20.603.
19.76.....................................  20.602.
------------------------------------------------------------------------

Subpart A--Applicability

    VA proposes to amend subpart A--Operation of the Board of Veterans' 
Appeals, by moving all sections into part 20. Generally applicable 
provisions are proposed to be moved into subpart B of part 20, while 
provisions applicable to adjudication of legacy appeals are proposed to 
be moved to subpart J of part 20.
    VA proposes to add new provisions to subpart A of part 19 that 
explain the applicability of part 19.
Sec.  19.1 Provisions Applicable to Legacy Appeals
    New Sec.  19.1 is proposed to help claimants understand which 
appeals system applies to their claim, and to provide specific 
instructions for legacy claimants to locate the regulations applicable 
to their appeal.
Sec.  19.2 Appellant's Election for Review of a Legacy Appeal in the 
Modernized System
    New Sec.  19.2 is proposed to explain options that may be available 
for legacy claimants to have their claim or appeal considered in the 
new system. This includes electing the modernized review system 
pursuant to 38 CFR 3.2400(c)(1), following issuance of a Statement of 
the Case or Supplemental Statement of the Case on or after the 
effective date, or pursuant to any test program implemented by the 
Board.

Subpart B--Legacy Appeals Processing by Agency of Original Jurisdiction

    VA proposes to restructure subpart B of part 19 in order to 
consolidate procedures relating to legacy appeal processing by the 
agency of original jurisdiction. Subpart C of part 20 deals with 
commencement and perfection of appeals. As these procedures require 
action by the agency of original jurisdiction rather than the Board, 
and are only applicable to appeals in the legacy system, VA proposes to 
move these provisions to subpart B of part 19.
Sec.  19.20 What Constitutes an Appeal
    VA proposes to redesignate Sec.  20.200 as Sec.  19.20, and update 
citations.
Sec.  19.21 Notice of Disagreement
    VA proposes to redesignate Sec.  20.201 as Sec.  19.21, and update 
citations.
Sec.  19.22 Substantive Appeal
    VA proposes to redesignate Sec.  20.202 as Sec.  19.22, and update 
citations.
Sec.  19.23 Applicability of Provisions Concerning Notice of 
Disagreement
    VA proposes to update the citations in Sec.  19.23.
Sec.  19.24 Action by Agency of Original Jurisdiction on Notice of 
Disagreement Required To Be Filed on a Standardized Form
    VA proposes to update the citations in Sec.  19.24.
Sec.  19.25 Notification by Agency of Original Jurisdiction of Right To 
Appeal
    VA does not propose any changes to Sec.  19.25.
Sec.  19.26 Action by Agency of Original Jurisdiction on Notice of 
Disagreement
    VA does not propose any changes to Sec.  19.26.
Sec.  19.27 [Reserved]
    Section 2, paragraph (s) of Public Law 115-55 repeals procedures 
for administrative appeals by striking section 7106 of title 38 of the 
United States Code. Therefore, VA proposes to remove Sec.  19.27, 
relating to administrative appeals.
Sec.  19.28 Determination That a Notice of Disagreement Is Inadequate 
Protested by Claimant or Representative
    VA does not propose any changes to Sec.  19.28.
Sec.  19.29 Statement of the Case
    VA does not propose any changes to Sec.  19.29.
Sec.  19.30 Furnishing the Statement of the Case and Instructions for 
Filing a Substantive Appeal
    Section 2, paragraph (x)(5) of Public Law 115-55 provides that a 
legacy appellant may elect to subject his or her appeal to the new 
system upon receipt of a Statement of the Case (SOC) or Supplemental 
Statement of the Case (SSOC). Therefore, VA proposes to amend Sec.  
19.30 by requiring that all SOCs contain information on how to opt into 
the new system.
Sec.  19.31 Supplemental Statement of the Case
    VA proposes to amend Sec.  19.31 by requiring that all SSOCs 
contain information on how to opt into the new system.
Sec.  19.32 Closing of Appeal for Failure To Respond to Statement of 
the Case
    VA does not propose any changes to Sec.  19.32.
Sec.  19.33 [Reserved]
    Section 2, paragraph (s) of Public Law 115-55 repeals procedures 
for

[[Page 39830]]

administrative appeals by striking section 7106 of title 38 of the 
United States Code. Therefore, VA proposes to remove Sec.  19.33, 
relating to administrative appeals.
Sec.  19.34 Determination that Notice of Disagreement or Substantive 
Appeal Was Not Timely Filed Protested by Claimant or Representative
    VA does not propose any changes to Sec.  19.34.
Sec.  19.35 Certification of Appeals
    Currently, certification to the Board may only be accomplished by 
completion of a VA Form 8. This requirement creates cumbersome 
administrative and technological processes which often delay 
certification of appeals, but do not serve Veterans in any way. 
Therefore, VA proposes to amend Sec.  19.35 to eliminate the 
requirement for a Form 8, and will accomplish certification through 
other means.
Sec.  19.36 Notification of Certification of Appeal and Transfer of 
Appellate Record
    VA proposes to update the citations in Sec.  19.36.
Sec.  19.37 Consideration of Additional Evidence Received by the Agency 
of Original Jurisdiction After an Appeal Has Been Initiated
    VA does not propose any changes to Sec.  19.37.
Sec.  19.38 Action by Agency of Original Jurisdiction When Remand 
Received
    VA proposes to update the citations in Sec.  19.38.

Subpart C--Claimant Action in a Legacy Appeal

    As noted, section 2, paragraph (s) of Public Law 115-55 repeals 
procedures for administrative appeals by striking section 7106 of title 
38 of the United States Code. As this amendment is applicable to all 
appeals, VA proposes to remove subpart C of part 19, dealing with 
administrative appeals.
    VA proposes to restructure subpart C of part 19 in order to 
consolidate procedures relating to commencement and filing of legacy 
appeals. Subpart D of part 20 deals with commencement and filing of 
appeals, including procedures for Statements of the Case. As these 
procedures require action by the agency of original jurisdiction rather 
than the Board, and are only applicable to appeals in the legacy 
system, VA proposes to move these provisions to subpart C of part 19.
Sec.  19.50 Who Can File an Appeal
    VA proposes to redesignate Sec.  20.301 as Sec.  19.50.
Sec.  19.51 Place of Filing Notice of Disagreement and Substantive 
Appeal
    VA proposes to redesignate Sec.  20.300 as Sec.  19.51.
Sec.  19.52 Time Limit for Filing Notice of Disagreement, Substantive 
Appeal, and Response to Supplemental Statement of the Case
    VA proposes to redesignate Sec.  20.302 as Sec.  19.52.
Sec.  19.53 Extension of Time for Filing Substantive Appeal and 
Response to Supplemental Statement of the Case
    VA proposes to redesignate Sec.  20.303 as Sec.  19.53.
Sec.  19.54 Filing Additional Evidence Does Not Extend Time Limit for 
Appeal
    VA proposes to redesignate Sec.  20.304 as Sec.  19.54.
Sec.  19.55 Withdrawal of Appeal
    VA proposes to redesignate Sec.  20.204 as Sec.  19.55, add an 
address update, and add an internal reference.

Subpart D--[Reserved]

    VA proposes to remove and reserve the two provisions of subpart D, 
dealing with field hearings. These provisions will be incorporated into 
subpart G of part 20, in order to streamline regulations concerning 
Board hearing procedures.

Subpart E--Simultaneously Contested Claims

    VA does not propose any substantive changes to the procedures for 
simultaneously contested legacy claims, consisting of Sec. Sec.  
19.100-19.102.

Appendix A to Part 19--Cross-References

    VA proposes to remove Appendix A to part 19, as it has outlived its 
usefulness. Cross-references currently located in the table are 
outdated or incorrect. Whereas a user may have previously used the 
appendix to search for other sections pertinent to a particular 
regulation, such research may be accomplished much more efficiently via 
a search of the electronic document.

Part 20--Board of Veterans' Appeals: Rules of Practice

    As noted, VA proposes to restructure subparts A and B of part 20 by 
adding generally applicable provisions from part 19 and new provisions 
explaining applicability and new definitions. The following 
distribution table shows where each section of current part 20 is 
proposed to be moved.

------------------------------------------------------------------------
                Old section                          New section
------------------------------------------------------------------------
20.100....................................  20.102.
20.101....................................  20.104.
20.102....................................  20.110.
20.200....................................  19.20; similar in 20.201.
20.201....................................  19.21; similar in 20.202.
20.202....................................  19.22.
20.204....................................  19.55; similar in 20.205.
20.300....................................  19.51; similar in 20.203.
20.301....................................  19.50; similar in 20.204.
20.302....................................  19.52; similar in 20.203.
20.303....................................  19.53.
20.304....................................  19.54.
20.305....................................  20.110.
20.306....................................  20.111.
20.400....................................  Removed.
20.401....................................  Removed.
20.500....................................  20.501.
20.501....................................  20.502.
20.502....................................  20.503.
20.503....................................  20.504.
20.504....................................  20.505.
20.600....................................  20.5.
20.608....................................  20.6.
20.702....................................  20.704; similar in 20.603.
20.703....................................  20.602.
20.704....................................  20.603.
20.705....................................  20.601; similar in 20.702.
20.706....................................  20.705.
20.707....................................  20.604; similar in 20.706.
20.708....................................  20.707.
20.709....................................  20.605.
20.710....................................  20.708.
20.711....................................  20.709.
20.712....................................  20.710.
20.713....................................  20.711.
20.714....................................  20.712.
20.715....................................  20.713.
20.716....................................  20.714.
20.717....................................  20.715.
20.800....................................  20.901.
20.900....................................  20.902; similar in 20.801.
20.901....................................  20.906; similar in 20.805.
20.902....................................  20.907.
20.903....................................  20.908.
20.904....................................  20.1000.
20.1000...................................  20.1001.
20.1001...................................  20.1002.
20.1003...................................  20.1003.
20.1502...................................  Removed.
20.1504...................................  Removed.
20.1505...................................  Removed.
20.1506...................................  Removed.
20.1507...................................  Removed.
20.1508...................................  Removed.
20.1509...................................  Removed.
------------------------------------------------------------------------

Subpart A--General

Sec.  20.1 Rule 1. Purpose and Construction of Rules of Practice
    VA proposes a minor edit to Sec.  20.1, to provide the common name 
for the Board of Veterans' Appeals.
Sec.  20.2 Rule 2. Procedure in Absence of Specific Rule of Practice
    VA proposes no changes.

[[Page 39831]]

Sec.  20.3 Rule 3. Definitions
    VA proposes minor edits to Sec.  20.3 Definitions, to remove terms 
that are no longer used in part 20, or are defined elsewhere in the 
part. VA also proposes to adopt the definition of ``claim'' used in 
part 3 of this title.
Sec.  20.4 Rule 4. Appeal Systems Definitions and Applicability 
Provisions
    VA proposes to add new Sec.  20.4, appeal systems definitions and 
applicability provisions, to provide definitions and an explanation of 
the applicability of the new system. Proposed Sec.  20.4 assists 
appellants in understanding which system applies to their appeal. It 
provides specific instructions for appellants to locate the regulations 
applicable to their appeal, and explains options that may be available 
for legacy claimants to take advantage of the new system.
Sec.  20.5 Rule 5. Right to Representation
    VA proposes to redesignate Sec.  20.600 as Sec.  20.5.
Sec.  20.6 Rule 6. Withdrawal of Services by a Representative
    VA proposes to redesignate Sec.  20.608 as Sec.  20.6, and make 
minor changes to reflect the different procedures for withdrawal of 
representatives in legacy appeals and appeals in the new system. 
Specifically, current Sec.  20.608 draws a distinction between 
withdrawal of services by a representative prior to certification to 
the Board, and withdrawal after certification. In the new appeals 
system, Notices of Disagreement are filed directly to the Board, and 
thus the certification process will not be applicable to new appeals. 
Proposed Sec.  20.6 clarifies that the rules governing withdrawal of 
representation after certification apply to both appeals in the legacy 
system that have been certified, and all appeals in the new system. The 
rules governing withdrawal of representation prior to certification 
apply only to legacy appeals that have not yet been certified.

Subpart B--The Board

Sec.  20.100 Rule 100. Establishment of the Board
    VA proposes to redesignate Sec.  19.1 as Sec.  20.100.
Sec.  20.101 Rule 101. Composition of the Board; Titles
    VA proposes to redesignate Sec.  19.2 as Sec.  20.101.
Sec.  20.102 Rule 102. Name, Business Hours, and Mailing Address of the 
Board
    VA proposes to redesignate Sec.  20.100 as Sec.  20.102 and update 
the mailing address.
Sec.  20.103 Rule 103. Principal Functions of the Board
    VA proposes to redesignate Sec.  19.4 as Sec.  20.103.
Sec.  20.104 Rule 104. Jurisdiction of the Board
    VA proposes to redesignate Sec.  20.101 as Sec.  20.104, and make 
minor changes. Specifically, VA proposes to reverse paragraphs (c) and 
(d) to condense information applicable only to legacy appeals. VA also 
proposes to redesignate Sec.  19.5 as Sec.  20.105. This move would 
make the third sentence of Sec.  20.104(a) redundant. Thus, VA proposes 
to remove that sentence from Sec.  20.104, and incorporate it with 
Sec.  20.105. Citations are also updated.
Sec.  20.105 Rule 105. Criteria Governing Disposition of Appeals
    As noted above, VA proposes to redesignate Sec.  19.5 as Sec.  
20.105 and clarify that the criteria governing the disposition of 
appeals also applies to decisions of the Board. Proposed Sec.  20.105 
includes the rules governing precedent opinions of the General Counsel 
of the Department of Veterans Affairs which are currently duplicated in 
Sec.  20.104(a) and Sec.  19.5. This nonsubstantive change reduces 
redundant paragraphs and simplifies the rule.
Sec.  20.106 Rule 106. Assignment of Proceedings
    VA proposes to redesignate Sec.  19.3 as Sec.  20.106.
Sec.  20.107 Rule 107. Disqualification of Members
    VA proposes to redesignate Sec.  19.12 as Sec.  20.107 and remove 
paragraph (b), dealing with administrative appeals.
Sec.  20.108 Rule 108. Delegation of Authority to Chairman and Vice 
Chairman, Board of Veterans' Appeals
    VA proposes to redesignate Sec.  19.13 as Sec.  20.108.
Sec.  20.109 Rule 109. Delegation of Authority to Vice Chairman, Deputy 
Vice Chairman, or Members of the Board
    VA proposes to combine current Sec.  19.14 with Sec.  20.102 and 
redesignate the section as Sec.  20.109, and update citations. This 
nonsubstantive change reduces redundant paragraphs and simplifies the 
rule.
Sec.  20.110 Rule 110. Computation of Time Limit for Filing
    VA proposes to redesignate Sec.  20.305 as Sec.  20.110.
Sec.  20.111 Rule 111. Legal Holidays
    VA proposes to redesignate Sec.  20.306 as Sec.  20.111 and update 
the citations.

Subpart C--Commencement and Filing of Appeals

    VA proposes to add a new subpart C, applicable only to appeals in 
the new system. Provisions in current subpart C applicable to legacy 
appeals would be redesignated and moved to part 19 as described 
elsewhere in this document. Proposed subpart C contains provisions 
dealing with the filing of a Notice of Disagreement. Although Public 
Law 115-55 makes some changes to Notice of Disagreement filing 
procedures, many of these procedures will remain the same; therefore, 
the proposed regulations contained in subpart C are similar to the 
Notice of Disagreement regulations currently in place.
Sec.  20.200 Rule 200. Notification by Agency of Original Jurisdiction 
of Right To Appeal
    VA proposes to add new Sec.  20.200, similar to current Sec.  
19.25.
Sec.  20.201 Rule 201. What Constitutes an Appeal
    VA proposes to add new Sec.  20.201, similar to current Sec.  
20.200. The amendments made to 38 U.S.C. 7105 direct that an appeal to 
the Board is accomplished by filing a Notice of Disagreement directly 
to the Board. Therefore, proposed Sec.  20.201 reflects this change in 
procedure.
Sec.  20.202 Rule 202. Notice of Disagreement
    VA proposes to add new Sec.  20.202, similar to current Sec.  
20.201. Public Law 115-55 requires that appellants indicate on their 
Notice of Disagreement the specific determination with which they 
disagree, and whether they request a Board hearing (which includes the 
opportunity to submit additional evidence within 90 days following the 
Board hearing), an opportunity to submit additional evidence within 90 
days following submission of the Notice of Disagreement, or direct 
review of the evidence that was before the agency of original 
jurisdiction by the Board. Thus, paragraphs (a) and (b) of proposed 
Sec.  20.202 reflect these changes to the information that must be 
indicated on the Notice of Disagreement.

[[Page 39832]]

    Public Law 115-55 requires that VA create a policy allowing 
appellants to change the information indicated on the Notice of 
Disagreement, meaning that an appellant may request to change the 
evidentiary record before the Board. In crafting this policy, VA sought 
to provide appellants with an opportunity to change their initial 
election if their circumstances or preference changed. However, VA also 
wanted to prevent an appellant from unfairly gaining the advantage of 
two dockets. For example, an appellant should not be permitted to take 
advantage of the faster direct review docket if he or she has already 
submitted evidence or testified at a Board hearing.
    Additionally, VA sought to limit the time period in which 
appellants may request to modify the Notice of Disagreement. VA has 
established a 365-day timeliness goal for appeals in the direct review 
docket. VA also intends to provide wait time predictions for the 
evidence and hearing dockets. If appellants are able to modify their 
Notices of Disagreement, and thereby change dockets at any time prior 
to the Board's decision on the issue or issues, VA will not be able to 
provide accurate wait time information. This would diminish the ability 
of other Veterans to make informed choices as to which of the Board's 
dockets best suits their individual needs.
    Proposed Sec.  20.202(c)(1) provides that the appellant's election 
of an evidentiary record on the Notice of Disagreement determines the 
docket on which the appeal is placed, and that the Board will not 
consider additional evidence or schedule a hearing unless the appellant 
indicated one of those options on the Notice of Disagreement. Paragraph 
(c)(2) provides that an appellant may modify the Notice of Disagreement 
for the purpose of selecting a different evidentiary record option. The 
request to modify must be made within one year of the agency of 
original jurisdiction decision on appeal, or 30 days after the Notice 
of Disagreement is received by the Board, whichever is later. The 
request will be denied if the appellant has already submitted evidence 
or testimony.
    Additionally, nothing in the regulations prevent an appellant from 
filing multiple Notices of Disagreement within the one-year period. 
Therefore, if an appellant wants to add additional issues not initially 
included on the Notice of Disagreement, the appellant is free to submit 
an additional Notice of Disagreement identifying these issues, as long 
as this additional Notice of Disagreement is timely submitted.
    Paragraphs (f) and (g) of proposed Sec.  20.202 provide procedures 
for how the Board will handle unclear or deficient Notices of 
Disagreement. The new framework shifts jurisdiction to the Board for 
any question as to the adequacy of Notices of Disagreement. Veterans 
Law Judges will retain their discretion to interpret some unclear 
statements on Notices of Disagreements in the light most favorable to 
the Veteran. However, proposed paragraphs (f) and (g) are necessary to 
outline the procedures the Board will take when an inadequate Notice of 
Disagreement is received at the Board. Specifically, the proposed rule 
addresses the problem created when the Board receives a Notice of 
Disagreement electing more than one evidentiary option, no evidentiary 
option, or when it is otherwise unclear how the appeal should be 
docketed.
    The proposed rule is closely aligned with the process for 
clarifying Notices of Disagreement in the legacy appeals system. When 
the Board receives an unclear or deficient Notice of Disagreement, the 
Board will notify the claimant and request clarification. The claimant 
must respond with the requested clarification within one year after the 
agency of original jurisdiction decision, or 60 days after the date of 
the Board's clarification request, whichever is later. If the claimant 
does not provide a timely response, the previous statement from the 
claimant will not be considered a Notice of Disagreement.
    Paragraph (h) of proposed Sec.  20.202 provides that, when an 
unclear Notice of Disagreement is properly clarified, the Notice of 
Disagreement will be considered to have been properly filed on the date 
of clarification. This means that the docket date will be based upon 
the date of the clarification, and if the appellant requests to submit 
evidence, the 90-day window for evidence submission will begin on the 
date of clarification.
Sec.  20.203 Rule 203. Place and Time of Filing Notice of Disagreement
    VA proposes to add new Sec.  20.203, similar to the provisions of 
current Sec. Sec.  20.300 and 20.302. Proposed Sec.  20.203 differs 
from current Sec. Sec.  20.300 and 20.302 in that Public Law 115-55 
requires that Notices of Disagreement are filed with the Board. In 
contrast, current Sec. Sec.  20.300 and 20.302 provide that Notices of 
Disagreement are filed with the agency of original jurisdiction.
Sec.  20.204 Rule 204. Who Can File a Notice of Disagreement
    VA proposes to add new Sec.  20.204, similar to current Sec.  
20.301. Proposed Sec.  20.204 differs from current Sec.  20.301 in that 
the provisions of Sec.  20.301 also apply to the filing of a 
Substantive Appeal. Public Law 115-55 eliminates procedures relating to 
Substantive Appeals; therefore, proposed Sec.  20.204 does not discuss 
Substantive Appeals.
Sec.  20.205 Rule 205. Withdrawal of Appeal
    VA proposes to add new Sec.  20.205, similar to current Sec.  
20.204. Proposed Sec.  20.205 differs from the rules for withdrawal of 
a legacy appeal in that paragraph (c) of proposed Sec.  20.205 provides 
that, in addition to filing a new Notice of Disagreement, a claimant 
may request a higher-level review or file a supplemental claim 
following the withdrawal of the Notice of Disagreement, provided such 
filing would be timely.

Subpart D--Evidentiary Record

    VA proposes to add new subpart D, Evidentiary Record, in place of 
current subpart D, Filing, which VA proposes to move to part 19. New 
subpart D is proposed to implement 38 U.S.C. 7113, a new section added 
by Public Law 115-55 to establish the evidentiary record before the 
Board. The evidentiary record before the Board is determined by the 
appellant's election on his or her Notice of Disagreement. The 
appellant's election will determine whether the Board considers (1) 
only the evidence that was of record at the time of the prior agency of 
original jurisdiction decision; (2) the evidence that was of record 
before at the time of the prior agency of original jurisdiction 
decision and any additional evidence submitted within 90 days of 
submission of the Notice of Disagreement; or (3) the evidence that was 
of record at the time of the prior agency of original jurisdiction 
decision and any evidence submitting during, or within 90 days 
thereafter, the Board hearing.
Sec.  20.300 Rule 300. General
    Proposed Sec.  20.300 provides that decisions of the Board will be 
based on a de novo review of the evidence, as provided in Sec.  20.801.
Sec.  20.301 Rule 301. Appeals With No Request for a Board Hearing and 
No Additional Evidence
    Proposed Sec.  20.301 provides that, for appeals with no request to 
appear at a hearing or submit additional evidence, the Board will 
consider only the evidence that was before the agency of original 
jurisdiction in the decision on appeal.

[[Page 39833]]

Sec.  20.302 Rule 302. Appeals With a Request for a Board Hearing
    Proposed Sec.  20.302 provides that, for appeals with a request for 
a Board hearing, the Board will consider the evidence that was before 
the agency of original jurisdiction in the decision on appeal, 
testimony presented at a Board hearing, and any additional evidence 
submitted within 90 days of the Board hearing.
    Public Law 115-55 does not describe the evidentiary record in the 
event that a hearing request is withdrawn or the appellant does not 
appear for a scheduled hearing. Thus, the Board proposes paragraphs (b) 
and (c) of Sec.  20.302 to specify that appellants who requested a 
hearing on the Notice of Disagreement, but ultimately do not appear for 
a hearing will retain the opportunity to submit additional evidence 
within a 90-day window.
Sec.  20.303 Rule 303. Appeals With No Request for a Board Hearing, But 
With a Request for Submission of Additional Evidence
    Proposed Sec.  20.303 provides that, for appeals with no request 
for a Board hearing, but with a request to submit additional evidence, 
the Board will consider the evidence that was before the agency of 
original jurisdiction in the decision on appeal, and any additional 
evidence submitted with the Notice of Disagreement or within 90 days 
following receipt of the Notice of Disagreement. As noted above, when 
an appellant requests to modify the Notice of Disagreement for the 
purpose of requesting an opportunity to submit additional evidence, the 
Board will notify the appellant whether the request has been granted, 
and if so, that the appeal has been moved to the docket for appeals 
described in this section. The 90-day window for submission of 
additional evidence will begin on the date of such notice.
    Public Law 115-55 requires that VA create at least two new 
dockets--a docket for appeals with a request for a Board hearing and a 
docket for appeals with no request for a Board hearing--but affords VA 
discretion to create additional dockets. VA proposes to establish three 
dockets for appeals adjudicated under the modernized appeals system. 
The first docket is for Veterans who do not want a hearing and do not 
wish to submit additional evidence, as provided by proposed Sec.  
20.301. The second docket is for Veterans who wish to have a hearing, 
as provided by proposed Sec.  20.302. Finally, the third docket is for 
Veterans who wish to submit additional evidence, but do not want a 
hearing before a Veterans Law Judge.
    Creation of these three separate dockets has multiple benefits. 
Most importantly, this docket structure provides greater opportunity 
for Veterans to tailor their appeals experience to best suit their 
individual needs. The first docket, described in proposed Sec.  20.301, 
captures quality feedback from appeals in which no additional evidence 
is added to the record. This allows VA to identify areas in which the 
claims process can be improved and will allow VA to develop targeted 
training. Allowing additional evidence submission for appeals in the 
docket described in proposed Sec.  20.301 would break this quality 
feedback loop. Veterans with a strong preference to appear at a Board 
hearing before a Veterans Law Judge may choose the docket described in 
proposed Sec.  20.302.
    The docket described in proposed Sec.  20.303 allows Veterans to 
submit additional evidence that may assist in establishing entitlement 
to benefits, without the wait time that is associated with Board 
hearings. Public Law 115-55 does not permit appeals with no request for 
a hearing to be placed on the same docket as appeals with a request for 
a hearing. See Public Law 115-55, section 2(t), amending 38 U.S.C. 
7107(a)(3). Therefore, creation of the third docket described in 
proposed Sec.  20.303 is necessary to provide Veterans with the option 
to submit additional evidence without a hearing.
    There is no cost associated with establishing the docket described 
in proposed Sec.  20.303. The technological system required to track 
and manage appeals at the Board is designed to maintain multiple 
dockets in both the legacy and modernized appeals systems, as required 
by law. Adding a third docket to process appeals with no request for a 
Board hearing, but with a request to submit additional evidence does 
not result in any additional cost from an information technology 
development perspective. Moreover, there is no additional cost 
associated with the adjudication of such appeals, as the Board will 
apply the same substantive law regarding entitlement to benefits to all 
appeals. There is no additional administrative or adjudicative burden 
caused by maintaining a separate docket for evidence submission.

Subpart E--Appeal in Simultaneously Contested Claims

    VA proposes to add new subpart E, Appeal in Simultaneously 
Contested Claims, in place of current subpart E, Administrative 
Appeals, which Public Law 115-55 repeals. Proposed subpart E would 
largely mirror subpart F, which VA proposes to make applicable only to 
legacy appeals. Subpart E would differ from subpart F insofar as the 
procedures for filing an appeal in the new system differ from those in 
the legacy system. For example, subpart F continues to describe notice 
and filing requirements for formal appeals and Statements of the Case. 
As Public Law 115-55 repeals procedures for formal appeals and 
Statements of the Case, subpart E does not have provisions related to 
these procedures. As discussed above, under the proposed new framework, 
simultaneously contested claims may only be appealed to the Board. 
Additionally, proposed subpart E addresses the circumstances--unique to 
the new framework, in which contesting parties request different 
evidentiary options.
Sec.  20.400 Rule 400. Notification of the Right To Appeal in a 
Simultaneously Contested Claim
    Proposed Sec.  20.401, similar to current Sec.  19.100, describes 
the notification procedures when the agency of original jurisdiction 
takes an action in a simultaneously contested claim.
Sec.  20.401 Rule 401. Who Can File an Appeal in Simultaneously 
Contested Claims
    Proposed Sec.  20.401, similar to current Sec.  20.500, describes 
who can file an appeal in simultaneously contested claims.
Sec.  20.402 Rule 402. Time Limits for Filing Notice of Disagreement in 
Simultaneously Contested Claims
    Proposed Sec.  20.402, similar to current Sec.  20.501, describes 
the time limits for filing a Notice of Disagreement in a simultaneously 
contested claim.
Sec.  20.403 Rule 403. Notice to Contesting Parties on Receipt of 
Notice of Disagreement in Simultaneously Contested Claims
    Proposed Sec.  20.403, similar to current Sec.  20.502, also 
specifies that the notice to contesting parties upon receipt of a 
Notice of Disagreement must indicate the type of review requested by 
the appellant who initially filed the Notice of Disagreement, including 
whether a hearing was requested.
Sec.  20.404 Rule 404. Time Limit for Response to Appeal by Another 
Contesting Party in a Simultaneously Contested Claim
    Proposed Sec.  20.404 provides that a party to a simultaneously 
contested claim may file a brief, argument, or

[[Page 39834]]

request for a different type of review under Sec.  20.202(b) in answer 
to a Notice of Disagreement filed by another contesting party.
Sec.  20.405 Rule 405. Docketing of Simultaneously Contested Claims at 
the Board
    Proposed Sec.  20.405 resolves any conflict between two parties who 
request different evidentiary options under Sec.  20.202(b). The 
proposed rule provides that, if any party requests a hearing before the 
Board, the appeal will be placed on the hearing docket and a hearing 
will be scheduled. If neither party requests a hearing, but any party 
requests an opportunity to submit additional evidence, the appeal will 
be placed on the evidence docket. VA will notify both parties when an 
appeal is placed on any docket. If the appeal is placed on the evidence 
docket, the parties will have 90 days from the date of such notice in 
which to submit additional evidence.
Sec.  20.406 Rule 406. Notices Sent to Last Addresses of Record in 
Simultaneously Contested Claims
    Proposed Sec.  20.406, similar to current Sec.  20.504, describes 
the procedures for sending notice to parties in contested claims.
Sec.  20.407 Rule 407. Favorable Findings Are Not Binding in Contested 
Claims
    The favorable finding rule is impossible to apply in the context of 
contested claims, because a particular factual finding might be 
favorable to one appellant but unfavorable to another. Because the 
application of this rule in the context of simultaneously contested 
claims would produce absurd results, proposed Sec.  20.407 clearly 
provides that favorable findings are not binding in the context of 
simultaneously contested appeals.

Subpart F--Legacy Appeal in Simultaneously Contested Claims

    VA proposes to add new ``Sec.  20.500 Rule 500. Applicability.'' in 
order to better inform appellants as to which subpart is applicable to 
their appeal. Aside from renumbering to accommodate the new 
applicability section and necessary citation updates, VA does not 
propose additional changes to subpart F.

Subpart G--Legacy Hearings on Appeal

    As noted above, VA proposes to redesignate Sec.  20.600 and Sec.  
20.608, dealing with representation, to subpart B, as these provisions 
are generally applicable to both appeals systems. Proposed new subpart 
G would contain special provisions for hearings in legacy appeals, 
while amendments to subpart H are proposed to make that subpart 
applicable to hearings on appeals in both systems.
    Amendments to hearing regulations for legacy and new system appeals 
are necessary in light of the Jeff Miller and Richard Blumenthal 
Veterans Health Care and Benefits Improvement Act of 2016, Public Law 
114-315. In relevant part, Public Law 114-315, by amending 38 U.S.C. 
7107, establishes the Board's authority, upon request for a hearing, to 
determine what type of hearing it will provide an appellant, while 
affording the appellant the opportunity to request an alternative type 
of hearing once the Board makes its initial determination. Notably, 
field hearings will only be available in the legacy system. Therefore, 
provisions applicable to field hearings, currently contained in subpart 
D of part 19, and subpart H of part 20, are proposed to be moved into 
subpart G.
Sec.  20.600 Rule 600. Applicability
    VA proposes new Sec.  20.600 to assist appellants in determining 
the hearing regulations applicable to their appeal.
Sec.  20.601 Rule 601. Methods by Which Hearings in Legacy Appeals Are 
Conducted; Scheduling and Notice Provisions for Such Hearings
    VA proposes to redesignate Sec.  20.705 as Sec.  20.601, and amend 
to reflect the procedures applicable only to legacy appeals. Proposed 
Sec.  20.601 would clarify that a hearing before the Board may be 
conducted via an in-person hearing held at the Board's principal 
location in Washington, DC, via electronic means, or at a Department of 
Veterans Affairs facility having adequate physical resources and 
personnel for the support of such hearings. Further, proposed Sec.  
20.601 informs the reader that procedures for scheduling and providing 
notice of Board hearings in legacy appeals conducted at the Board's 
principal location or via electronic means are contained in Sec.  
20.704, while procedures for scheduling and providing notice of Board 
hearings in legacy appeals conducted at field facilities are contained 
in Sec.  20.603.
Sec.  20.602 Rule 602. When a Hearing Before the Board of Veterans' 
Appeals May Be Requested in a Legacy Appeal; Procedure for Requesting a 
Change in Method of Hearing
    VA proposes to retitle, revise, and expand Sec.  20.703, 
redesignated as Sec.  20.602, to clarify when and how legacy appellants 
may request hearings before the Board. These revisions implement the 
changes to 38 U.S.C. 7107 that require the Board to determine the 
method of a hearing and notify the appellant of its decision. As noted, 
although the Board will now be making the initial determinations 
regarding the method by which hearings will be conducted, appellants' 
rights to request a different type of hearing are preserved. Also, the 
Board alone will provide notification of the method and scheduling of 
hearings.
Sec.  20.603 Rule 603. Scheduling and Notice of Hearings Conducted by 
the Board of Veterans' Appeals at Department of Veterans Affairs Field 
Facilities in a Legacy Appeal
    VA proposes to combine Sec.  19.75 and Sec.  20.704, and to 
redesignate as Sec.  20.603. Proposed Sec.  20.603 will clarify the 
procedures for the scheduling of hearings at VA field facilities. Field 
hearings for legacy appeals are scheduled in relationship to the need 
for the entire docket. Field hearing requests for legacy appeals are 
now handled by the Board alone and timing for requests is clarified. 
Citations and address are updated.
Sec.  20.604 Rule 604. Designation of Member or Members To Conduct the 
Hearing in a Legacy Appeal
    VA proposes to redesignate Sec.  20.707 as Sec.  20.604, and amend 
the section to differentiate the procedures for legacy appeals. 
Citations are also updated.
Sec.  20.605 Rule 605. Procurement of Additional Evidence Following a 
Hearing in a Legacy Appeal
    VA proposes to redesignate Sec.  20.709 as Sec.  20.605, and amend 
the section title to reflect that the provision is only applicable to 
legacy appeals. As notice, the evidentiary record in the new system is 
governed by subpart D.

Subpart H--Hearings on Appeal

    No changes are proposed to Sec.  20.701.
Sec.  20.700 Rule 700. General
    VA proposes to amend Sec.  20.700 by removing outdated procedures 
for representatives to present oral arguments on an audio cassette. It 
is the Board's practice to accept written arguments from a 
representative in the form of informal hearing presentations. 
Additionally, the presiding member may accept oral argument from a 
representative. This amendment will not disrupt those practices.
    VA also proposes to remove paragraph (e), regarding electronic 
hearings, as these procedures are described in Sec.  20.702(b).

[[Page 39835]]

Sec.  20.702 Rule 702. Methods by Which Hearings Are Conducted
    VA proposes new Sec.  20.702, describing the types of hearings 
available to appellants in the new system. Similar to current Sec.  
20.705 (proposed here to be redesignated as Sec.  20.601), this section 
will provide appellants and other readers with a clear understanding of 
the different methods by which Board hearings are conducted. Proposed 
Sec.  20.702 would clarify that a hearing before the Board may be 
conducted via electronic means or via an in-person hearing held at the 
Board's principal location in Washington, DC.
Sec.  20.703 Rule 703. When a Hearing Before the Board of Veterans' 
Appeals May Be Requested; Procedure for Requesting a Change in Method 
of Hearing
    VA proposes new Sec.  20.703 to clarify when and how appellants may 
request hearings before the Board. These revisions implement the 
changes to 38 U.S.C. 7107 that require the Board to determine the 
method of a hearing and notify the appellant of its decision. As noted, 
although the Board will now be making the initial determinations 
regarding the method by which hearings will be conducted, appellants' 
rights to request a different type of hearing are preserved.
Sec.  20.704 Rule 704. Scheduling and Notice of Hearings Conducted by 
the Board of Veterans' Appeals
    VA proposes to redesignate Sec.  20.702 as Sec.  20.704, and amend 
to reflect scheduling and notice procedures applicable to appeals in 
the new system, similar to Sec.  20.603, applicable only to hearings in 
the legacy system.
Sec.  20.705 Rule 705. Functions of the Presiding Member
    VA proposes to redesignate Sec.  20.706 as Sec.  20.705, and amend 
the section to provide a more comprehensive list of functions of the 
presiding Member conducting the Board hearing.
Sec.  20.706 Rule 706. Designation of Member or Members To Conduct the 
Hearing
    VA proposes to add new Sec.  20.706 to differentiate the procedures 
for appeals in the new system, similar to proposed Sec.  20.604, 
applicable to legacy appeals.
Sec.  20.707 Rule 707. Prehearing Conference
    Currently, Sec.  20.708 requires different procedures for 
requesting a prehearing conference, depending on the method of hearing. 
It is the Board's practice not to require formal requests for 
prehearing conferences. VA proposes to eliminate regulations describing 
procedures that are confusing and burdensome for appellants, and 
instead provide a streamlined approach that is in line with current 
practices. Thus, VA proposes to redesignate Sec.  20.708 as Sec.  
20.707 and amend the section.
Sec.  20.708 Rule 708. Witnesses at Hearings
    VA proposes to redesignate Sec.  20.710 as Sec.  20.708.
Sec.  2.709 Rule 709. Subpoenas
    VA proposes to redesignate Sec.  20.711 as Sec.  20.709. Addresses 
are updated.
Sec.  20.710 Rule 710. Expenses of Appellants, Representatives, and 
Witnesses Incident to Hearings Not Reimbursable by the Government
    VA proposes to redesignate Sec.  20.712 as Sec.  20.710.
Sec.  20.711 Rule 711. Hearings in Simultaneously Contested Claims
    As noted above, VA proposes to streamline the timelines for 
requesting a change in hearing date. For simultaneously contested 
claims, however, it is necessary to provide time limits in order to 
preserve the rights of all appellants. Therefore, VA proposes to 
redesignate Sec.  20.713 as Sec.  20.711 and amend the section by 
clarifying the procedures for hearings in simultaneously contested 
claims, in particular hearing date change requests.
Sec.  20.712 Rule 712. Record of Hearing
    VA proposes to redesignate Sec.  20.714 as Sec.  20.712 and amend 
the section to reflect current practices. Current Sec.  20.714 contains 
lengthy and confusing rules dictating when a hearing transcript is 
prepared. However, it is the Board's practice to create hearing 
transcripts for all appeals, and to provide a copy of a transcript when 
requested.
Sec.  20.713 Rule 713. Recording of Hearing by Appellant or 
Representative
    VA proposes to redesignate Sec.  20.715 as Sec.  20.713 and amend 
the section to streamline the process for an appellant or 
representative to record a hearing with his or her own equipment. 
Currently, different procedures are applicable depending on where the 
hearing was held.
Sec.  20.714 Rule 714. Correction of Hearing Transcripts
    VA proposes to redesignate Sec.  20.716 as Sec.  20.714 and amend 
the section to remove outdated references to tape recordings, and 
streamline the process for requesting correction of hearing 
transcripts. Currently, different procedures are applicable depending 
on where the hearing was held. The address is also updated.
Sec.  20.715 Rule 715. Loss of Hearing Recordings or Transcripts--
Motion for New Hearing
    Current Sec.  20.717 contemplates the loss or partial loss of a 
hearing recording or transcript, and requires that the appellant file a 
motion for a new hearing if desired, specifying why prejudice would 
result from the failure to provide a new hearing. It has been VA's 
practice to waive this motion requirement in the event that the Board 
discovers a loss of recordings or transcripts of hearings. VA proposes 
to redesignate Sec.  20.717 as Sec.  20.715 and amend the section to 
reflect the current, more appellant-friendly practice. Revised Sec.  
20.715 would require the Board to notify the appellant and his or her 
representative when such loss has occurred, and provide the appellant a 
choice of appearing at a new Board hearing, or having the Board proceed 
to appellate review of the appeal based on the evidence of record.

Subpart I--Appeals Processing

    VA proposes to add new subpart I, Appeals Processing. Currently, 
subpart I contains only one section, which VA proposes to move into 
subpart J. New subpart I would describe processing of appeals in the 
new system at the Board.
Sec.  20.800 Rule 800. Order of Consideration of Appeals
    VA proposes to add new Sec.  20.800, to describe the docketing of 
appeals. While this new section is similar to current Sec.  20.900, it 
follows Public Law 115-55's direction in creating separate dockets, and 
docketing appeals in the order in which they are received on their 
respective dockets.
    Public Law 115-55 requires that VA create at least two new 
dockets--a docket for appeals with a request for a Board hearing, and a 
docket for appeals with no request for a Board hearing--but affords VA 
discretion to create additional dockets. VA proposes to establish three 
dockets to handle appeals adjudicated under the new system. The 
``direct'' docket will be for Veterans who do not want a hearing and do 
not wish to submit additional evidence. The ``evidence'' docket will be 
for Veterans who wish to submit additional evidence, but do not want a 
Board hearing. Finally, the ``hearing'' docket will be for Veterans who 
wish to have a hearing before a Veterans Law Judge. Creation of these 
three separate dockets will have multiple benefits.

[[Page 39836]]

Most importantly, it provides greater opportunity for Veterans to 
tailor their appeals experience to best suit their individual needs. 
Additionally, the direct docket will capture quality feedback from 
appeals in which no additional evidence is added to the record. This 
will allow VA to identify areas in which the claims process can be 
improved.
    Public Law 115-55 requires that VA develop a policy allowing 
appellants to move their appeal from one docket to another. As noted, 
VA developed a policy allowing appellants to modify the information 
identified in the Notice of Disagreement. By requesting a different 
evidentiary option under the procedures described above, appellants are 
essentially requesting to change dockets as well. When a request to 
modify a Notice of Disagreement includes a request to change the 
hearing or evidence submission request, the Board will move the appeal 
to the appropriate docket, retaining the original docket date.
    Proposed Sec.  20.800(e) is added to explain that a case will not 
be returned to the Board following the agency of original 
jurisdiction's readjudication of an appeal previously remanded by the 
Board. Pursuant to amended 38 U.S.C. 5104C, a claimant's options for 
further review of the agency of original jurisdiction's decision 
include filing a new Notice of Disagreement. Where a new Notice of 
Disagreement is filed following readjudication by the agency of 
original jurisdiction, the case will be docketed in the order in which 
the most recent Notice of Disagreement was received. There is no 
statutory provision requiring that a case be returned to the Board 
following readjudication by the agency of original jurisdiction or that 
the Board provide expeditious treatment when a new appeal is filed 
following such readjudication.
Sec.  20.801 Rule 801. The Decision
    Proposed Sec.  20.801 describes general rules regarding Board 
decisions in the new system, similar to current Sec.  19.7. Proposed 
Sec.  20.801 differs from current Sec.  19.7 in that it reflects Public 
Law 115-55's provisions regarding the evidentiary record, prior 
favorable findings, and notice requirements. As noted, Public Law 115-
55 creates new section 7113 outlining the evidentiary record before the 
Board. Proposed Sec.  20.801(a) explains that the Board's decision will 
be based on a de novo review of the evidence of record before the 
agency of original jurisdiction, as well as any additional evidence 
submitted pursuant to section 7113. Additionally, Public Law 115-55 
creates a new requirement that VA provide a general statement as to 
whether any evidence was received at a time not permitted by section 
7113. This statement must also inform the appellant that any such 
evidence was not considered by the Board, and explain the options 
available to have that evidence reviewed. Thus, Sec.  20.801(b)(3) 
reflects this notice requirement. Finally, Public Law 115-55 amends 
chapter 51 by adding a new section, 5104A, requiring that any finding 
favorable to the claimant will be binding on subsequent adjudicators. 
Thus, proposed Sec.  20.801(a) reflects that any findings favorable to 
the claimant with regard to the issue or issues on appeal, as 
identified by the agency of original jurisdiction, are binding on the 
Board's decision, unless rebutted by clear and convincing evidence. In 
practice, the Board would rarely disturb such findings prior to 
enactment of the Appeals Modernization Act. This regulation is largely 
serving to codify a longstanding practice of the Board not to disturb 
favorable findings or elements of the claim made by the agency of 
original jurisdiction.
Sec.  20.802 Rule 802. Remand for Correction of Error
    Proposed Sec.  20.802 describes general rules regarding Board 
remands in the new system, similar to current Sec.  19.9. Proposed 
Sec.  20.802 differs from current Sec.  19.9 in that it reflects Public 
Law 115-55's provisions regarding the duty to assist. Amended section 
5103A(e)(2) specifies that the Secretary's duty to assist does not 
apply to review on appeal by the Board. Thus, under the amendments made 
by Public Law 115-55, the Board may no longer remand an appeal for the 
purposes of developing additional evidence. Rather, under amended 38 
U.S.C. 5103A(f)(2)(A), the Board shall remand an appeal to correct an 
error on the part of the agency of original jurisdiction to satisfy its 
duties under section 5103A, if that error occurred prior to the agency 
of original jurisdiction decision on appeal. A remand is not required 
if the Secretary is able to grant the issue or issues in full. Thus, 
proposed Sec.  20.802(a) closely follows the amended statutory 
authority in describing the circumstances under which the Board must 
remand an appeal.
    Amended 38 U.S.C. 5103A(f)(2)(B) further notes that the Board's 
remand for correction of a pre-decisional duty to assist error may 
include directing the agency of original jurisdiction to obtain an 
advisory medical opinion under amended section 5109. Public Law 115-55 
adds new paragraph (d)(1) to section 5109, noting that the Board 
``shall remand a claim to direct the agency of original jurisdiction to 
obtain an advisory medical option from an independent medical expert 
under the section if the Board finds that the Veterans Benefits 
Administration should have exercised its discretion to obtain such an 
opinion.'' Thus, proposed Sec.  20.802(b) closely follows the amended 
statutory authority in describing the circumstances under which the 
Board must remand an appeal to obtain an advisory medical opinion.
    Additionally, the Board may remand for the correction of any other 
error by the agency of original jurisdiction in satisfying a regulatory 
or statutory duty where there is a reasonable possibility that 
correction of the error would aid in substantiating the claim, but need 
not remand solely for correction of a procedural defect as this would 
be inconsistent with the statutory framework of Public Law 115-55.
    Finally, proposed Sec.  20.802(c) reflects that, under Public Law 
115-55, the agency of original jurisdiction must correct any error 
identified by a Board remand, readjudicate the claim, and provide 
notice of the decision, including notice of the claimant's options for 
further review. Notably, cases remanded by the Board will not be 
automatically returned to the Board after the agency of original 
jurisdiction has taken the appropriate action. Instead, a claimant who 
remains dissatisfied with an agency of original jurisdiction decision 
after adjudication and wants review by the Board must file a new Notice 
of Disagreement with the Board as to the issue or issues. Proposed 
Sec.  20.802(c) also reflects the amendment to 38 U.S.C. 5109B, which 
directs that the agency of original jurisdiction must provide for the 
expeditious treatment of any claim that is remanded by the Board.
Sec.  20.803 Rule 803. Content of Board Decision, Remand, or Order in 
Simultaneously Contested Claims
    Proposed Sec.  20.803 mirrors the language of current Sec.  19.8 in 
describing the content of a Board decision, remand, or order in 
simultaneously contested claims.
Sec.  20.804 Rule 804. Opinions of the General Counsel
    Proposed Sec.  20.804 describes the circumstances under which the 
Board will obtain an opinion from the General Counsel, similar to 
provisions contained in current Sec. Sec.  20.901-20.903. Proposed 
Sec.  20.804 differs from current Sec.  20.901 in that it reflects 
Public Law 115-55's provisions repealing the authority for

[[Page 39837]]

independent medical opinions contained in 38 U.S.C. 7109. As noted 
above, medical opinions will only be ordered by the Board when a remand 
is required to correct a pre-decisional duty to assist error by the 
agency of original jurisdiction. Thus, proposed Sec.  20.804 only 
contains provisions relating to opinions of the General Counsel.

Subpart J--Action by the Board in Legacy Appeals

    VA proposes to amend subpart J to apply only to legacy appeals. 
Proposed Sec.  20.900 would explain that the subpart is applicable to 
legacy appeals. As noted, VA also proposes to consolidate provisions 
related to Board decisions in legacy appeals into subpart J. This 
reorganization will clarify the distinction between agency of original 
jurisdiction action on appeals, which is proposed to be consolidated 
into part 19, and Board action on appeals, which is proposed to be 
consolidated to part 20. Thus, VA proposes to move Sec.  19.7, 
describing Board decisions, to Sec.  20.903. VA proposes to move Sec.  
19.9, describing Board remands, to Sec.  20.904. Finally, VA proposes 
to move Sec.  19.8, describing Board decisions in simultaneously 
contested claims, to Sec.  20.905. This reorganization will assist 
appellants by providing a clear delineation between Board and agency of 
original jurisdiction action, and by laying out relevant regulations in 
chronological order. VA also proposes to redesignate Sec.  20.800, 
regarding submission of additional evidence after the initiation of the 
appeal to Sec.  20.901. This provision is only applicable to legacy 
appeals, as evidence submission for appeals in the new system is 
governed by 7113. Other provisions currently in subpart J would remain 
largely unchanged.
Sec.  20.900 Rule 900. Applicability
    VA proposes to add new Sec.  20.900, to explain that provisions of 
this subpart only apply to legacy appeals.
Sec.  20.901 Submission of Additional Evidence After Initiation of 
Appeal
    VA proposes to redesignate Sec.  20.800 as Sec.  20.901.
Sec.  20.902 Rule 902. Order of Consideration of Appeals
    VA proposes to redesignate Sec.  20.900 as Sec.  20.902 and update 
the Board's address.
Sec.  20.903 Rule 903. The Decision
    VA proposes to redesignate Sec.  19.7 as Sec.  20.903.
Sec.  20.904 Rule 904. Remand or Referral for Further Action
    VA proposes to redesignate Sec.  19.9 as Sec.  20.904 and update 
citations.
Sec.  20.905 Rule 905. Content of Board Decision, Remand, or Order in 
Simultaneously Contested Claims
    VA proposes to redesignate Sec.  19.8 as Sec.  20.905.
Sec.  20.906 Rule 906. Medical Opinions and Opinions of the General 
Counsel
    VA proposes to redesignate Sec.  20.901 as Sec.  20.906 and update 
the current name of the military institution that reviews pathologic 
material.
Sec.  20.907 Rule 907. Filing of Requests for the Procurement of 
Opinions
    VA proposes to redesignate Sec.  20.902 as Sec.  20.907 and update 
citations.
Sec.  20.908 Rule 908. Notification of Evidence To Be Considered by the 
Board and Opportunity for Response
    VA proposes to redesignate Sec.  20.903 as Sec.  20.908 and update 
citations.

Subpart K--Vacatur and Reconsideration

Sec.  20.1000 Rule 1000. Vacating a Decision
    VA proposes to redesignate Sec.  20.904, regarding vacatur of a 
Board decision, to Sec.  20.1000. Current Sec.  20.904 is generally 
applicable to both legacy and new system appeals. Moving this provision 
into subpart K allows VA to avoid duplicating the provision in subpart 
I, for new system appeals. Moreover, vacatur and reconsideration both 
describe actions that take place after a Board decision has been 
issued. Thus, this move is in line with VA's efforts to reorganize 
appeals regulations into a more common-sense, Veteran-centric order. VA 
proposes a minor change to proposed 20.1000 to reflect that Statements 
of the Case are no longer required in the new system. VA proposes to 
reverse paragraphs (a)(2) and (a)(3), and note that failure to provide 
a Statement of the Case or Supplemental Statement of the Case is 
considered a denial of due process only in legacy appeals.
Sec.  20.1001 Rule 1001. When Reconsideration Is Accorded
    VA proposes to redesignate and amend Sec.  20.1000(b), by striking 
the words ``and material''. Public Law 115-55 replaces the new and 
material standard with a requirement for new and relevant evidence. 
Although the new and material standard is still applicable to legacy 
appeals, in this context, VA notes that inclusion of the word 
``material'' is redundant, as paragraph (b) describes discovery of 
``relevant'' service department records. Any relevant service 
department records would be considered ``material'' under the legacy 
standard. Thus, the proposed change would make the paragraph applicable 
to both systems, while retaining the intended result.
Sec.  20.1002 Rule 1002. Filing and Disposition of Motion for 
Reconsideration
    VA proposed to redesignate Sec.  20.1001 as Sec.  20.1002. 
Citations and address are also updated.
Sec.  20.1003 Rule 1003. Hearings on Reconsideration
    VA proposes minor changes to Sec.  20.1003, to reflect that a 
hearing on reconsideration would only be provided in legacy appeals, 
and in new system appeals where the appellant had requested a Board 
hearing on the Notice of Disagreement. This change is necessary to 
comply with amended section 7107(c), which states that a hearing before 
the Board may be scheduled only if a hearing was requested on the 
Notice of Disagreement.
Sec.  20.1004 Rule 1004. Reconsideration Panel
    VA proposes to redesignate Sec.  19.11 as Sec.  20.1004, and make a 
minor change as required by Public Law 115-55. Public Law 115-55 amends 
7103(b)(1) by striking the word ``heard'' and replacing it with 
``decided''. Thus, VA proposes to make the same change to proposed 
Sec.  20.1004, regarding reconsideration panels. This change will have 
no substantive impact on legacy appeals.

Subpart L--Finality

    No changes are proposed to Sec. Sec.  20.1102, 20.1104, and 
20.1106.
Sec.  20.1103 Rule 1103. Finality of Determinations of the Agency of 
Original Jurisdiction Where Issue Is Not Appealed
    VA proposes to amend Sec.  20.1103, regarding finality of agency of 
original jurisdiction decisions, in order to make the rule applicable 
to both legacy and new appeals. The proposed rule clarifies that the 
agency of original jurisdiction decision may be readjudicated if, 
within one year, the claimant files a supplemental claim, request for 
higher-level review, or Notice of Disagreement. A citation is also 
updated.

[[Page 39838]]

Sec.  20.1105 Rule 1105. Supplemental Claim After Promulgation of 
Appellate Decision
    VA proposes to amend Sec.  20.1105, regarding a new claim after 
promulgation of an appellate decision. In the new system, a claimant 
may file a supplemental claim with the agency of original jurisdiction 
by submitting new and relevant evidence related to the previously 
adjudicated issue. This includes issues in which the final appellate 
decision was issued in a legacy appeal, but the new claim was filed on 
or after the effective date. In the current system, new and material 
evidence is required to reopen a claim after an appellate decision. VA 
proposes paragraph (b) to address any legacy appeals pending on the 
effective date which are based upon a claim to reopen. The requirement 
that an appellant submit new and material evidence to reopen a claim 
only applies to legacy appeals that are pending on the effective date. 
A citation is also updated.

Subpart M--Privacy Act

    No changes are proposed to Sec.  20.1200.
Sec.  20.1201 Rule 1201. Amendment of Appellate Decisions
    Citations are updated.
Subpart N--Miscellaneous
    No changes are proposed to Sec.  20.1303.
Sec.  20.1301 Rule 1301. Disclosure of Information
    VA proposes to amend Sec.  20.1301, regarding the Board's policy to 
disclose adjudicative documents to appellants, to reflect the 
difference in procedure for legacy and new appeals. As noted, 
supplemental Statements of the Case are not required in the new system, 
but continue to be a requirement in the legacy system. Thus, VA 
proposes to strike references to Statements of the Case in paragraph 
(a), and add new paragraph (b) to note that, for legacy appeals, the 
policy described in paragraph (a) is also applicable to Statements of 
the Case. The address is also updated.
Sec.  20.1302 Rule 1302. Death of Appellant During Pendency of Appeal 
Before the Board
    Citations and cross-references are updated.
Sec.  20.1304 Rule 1304. Request for a Change in Representation
    VA proposes to redesignate Sec.  20.1304 as Sec.  20.1305, and add 
new Sec.  20.1304, to delineate the different procedures for appellants 
in the legacy and new system to request a change in representation, 
personal hearing, or submission of additional evidence. In the new 
system, hearings and evidence submission will only be permitted as 
described in section 7113. Requests to modify a Notice of Disagreement, 
for the purpose of selecting a different option for evidence submission 
or hearing request, is governed by Sec.  20.202(c). Thus, proposed 
Sec.  20.1304 describes the procedures for requesting a change in 
representation only. Requests for changes in representation are 
collections of information under the Paperwork Reduction Act, and are 
currently approved under OMB Control Number 2900-0085. VA intends to 
submit this collection of information under OMB Control Number 2900-
0674 in the future.
Sec.  20.1305 Rule 1305. Procedures for Legacy Appellants To Request a 
Change in Representation, Personal Hearing, or Submission of Additional 
Evidence Following Certification of an Appeal to the Board of Veterans' 
Appeals
    VA proposes to amend Sec.  20.1304, redesignated as Sec.  20.1305, 
to apply only to legacy appeals. Thus, minor changes are proposed to 
reflect that the provisions of Sec.  20.1305 are applicable only to 
legacy appeals. The address and citations are also updated.

Subpart O--Revision of Decisions on Grounds of Clear and Unmistakable 
Error

    VA proposes minor changes to subpart O. Specifically, a reference 
to administrative appeals under Sec.  19.51 is struck in Sec.  
20.1401(b) since Public Law 115-55 repeals procedures for 
administrative appeals by striking section 7106 of title 38 of the 
United States Code. VA proposes to clarify that the provisions of 
Sec. Sec.  20.1403(b)(2) and 20.1411(b) are only applicable in the 
legacy system. Additionally, VA proposes to strike Sec.  20.1405(d), as 
section 2, paragraph (v) of Public Law 115-55 repealed the authority 
for that provision. Addresses and citations are also updated. No 
changes are proposed to Sec. Sec.  20.1400, 20.1402, 20.1406, 20.1407, 
and 20.1410.

Subpart P--Expedited Claims Adjudication Initiative--Pilot Program

    VA proposes to remove and reserve subpart P, which addresses the 
Expedited Claims Adjudication (ECA) Initiative Pilot Program as this 
program is no longer in use and will not continue based on changes to 
the claims and appeals processes under Public Law 115-55. VA launched 
the ECA Initiative Program on February 2, 2009. The two-year pilot 
program was designed to accelerate claims and appeals processing. 
Participation in the ECA Initiative was strictly voluntary and limited 
to claimants who resided within the jurisdiction of the Nashville, 
Lincoln, Seattle, or Philadelphia Regional Offices (ROs). VA concluded 
the ECA pilot program in 2013. As the program is no longer operational, 
VA proposes to remove subpart P.

Appendix A to Part 20--Cross-References

    VA proposes to remove Appendix A to part 20, as it has outlived its 
usefulness. Cross-references currently located in the table are 
outdated or incorrect. Whereas a user may have previously used the 
appendix to search for other sections pertinent to a particular 
regulation, such research may be accomplished much more efficiently via 
a search of the electronic document.

Part 21--Vocational Rehabilitation and Education

Subpart A--Vocational Rehabilitation and Employment Under 38 U.S.C. 
Chapter 31

    VA proposes to amend part 21 to align current regulations with new 
review and appeals processes outlined in Public Law 115-55. To 
accomplish this goal, VA proposes to update Subpart A by deleting 38 
CFR 21.59 and 21.98; adding one new section, 38 CFR 21.416; amending 38 
CFR 21.414 and 21.420; and updating cross references in several 
additional regulations (in subparts A and I).
    VA's Vocational Rehabilitation and Employment (VR&E) program, under 
the authority of title 38 of the United States Code (U.S.C.) Chapter 
31, serves an important function: To assist Servicemembers and Veterans 
who have service connected disabilities and barriers to employment in 
obtaining and maintaining suitable employment and achieving maximum 
independence in daily living. There are several points in this process 
where program participants may disagree with a decision made by VR&E 
field staff regarding benefits and/or services. Although VR&E's current 
practices with regard to reviews and appeals are well established in 
policy and procedural guidance, current regulations on the review and 
appeal processes focus only on three very specific points in the 
rehabilitation process (eligibility; entitlement; and the development 
of, or change in, the rehabilitation plan). Therefore, VA proposes to 
remove those current regulations, 38 CFR 21.59 and 21.98, and add 
proposed Sec.  21.416, one new comprehensive regulation that is

[[Page 39839]]

inclusive of reviews and appeals that may occur throughout the entire 
rehabilitation process and accords with the new review options provided 
in Public Law 115-55.
    Proposed Sec.  21.416 will outline who can perform a higher-level 
review; provide a process that allows for the submission of new and 
relevant evidence; discuss duty to assist errors; outline an informal 
conference procedure for the higher-level review process; provide 
information on how to proceed on issues surrounding a difference of 
opinion; and establish a review time period. The review time period is 
an administrative goal, but does not create an enforceable right.
    VA also proposes to amend 38 CFR 21.414 and 21.420 to include the 
new review options and the new requirements for notification letters 
under Public Law 115-55.

Subpart B--Claims and Applications for Educational Assistance

    In addition to the proposed amendments to subpart A, VA proposes to 
amend subpart B regulations that govern VA's educational assistance 
benefits. VA's Education Service handles oversight of VA's education 
programs, which provide veterans, servicemembers, reservists, and 
certain family members of veterans with educational opportunities post-
separation. To align current educational assistance regulations with 
the new review and appeals processes outlined in Public Law 115-55, VA 
proposes to revise Sec.  21.1034. VA also proposes to remove the cross 
reference in one additional regulation and add Sec.  21.1035 to address 
reviews in the legacy appeals process.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires 
that VA consider the impact of paperwork and other information 
collection burdens imposed on the public. According to the 1995 
amendments to the Paperwork Reduction Act (5 CFR 1320.8(b)(2)(vi)), an 
agency may not collect or sponsor the collection of information, nor 
may it impose an information collection requirement unless it displays 
a currently valid Office of Management and Budget (OMB) control number. 
This proposed rule includes provisions constituting new collections of 
information under the Paperwork Reduction Act of 1995 that require 
approval by the OMB. Accordingly, under 44 U.S.C. 3507(d), VA has 
submitted a copy of this rulemaking action to OMB for review.
    OMB assigns control numbers to collections of information it 
approves. VA may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. Proposed 38 CFR 3.160(c), 3.2501, 
3.2601, 8.30, 20.202, and 21.1034 contain collections of information 
under the Paperwork Reduction Act of 1995. If OMB does not approve the 
collections of information as requested, VA will immediately remove the 
provisions containing a collection of information or take such other 
action as is directed by the OMB.
    Comments on the collections of information contained in this 
proposed rule should be submitted to the Office of Management and 
Budget, Attention: Desk Officer for the Department of Veterans Affairs, 
Office of Information and Regulatory Affairs, Washington, DC 20503 or 
emailed to [email protected], with copies sent by mail or 
hand delivery to the Director, Regulation Policy and Management 
(00REG), Department of Veterans Affairs, 810 Vermont Avenue NW, Room 
1063B, Washington, DC 20420; fax to (202) 273-9026; or submitted 
through www.Regulations.gov. Comments should indicate that they are 
submitted in response to ``RIN 2900-AQ26.''
    OMB is required to make a decision concerning the collections of 
information contained in this proposed rule between 30 and 60 days 
after publication of this document in the Federal Register. Therefore, 
a comment to OMB is best assured of having its full effect if OMB 
receives it within 30 days of publication. This does not affect the 
deadline for the public to comment on the proposed rule.
    VA considers comments by the public on proposed collections of 
information in--
     Evaluating whether the proposed collections of information 
are necessary for the proper performance of the functions of the 
Department, including whether the information will have practical 
utility;
     Evaluating the accuracy of the Department's estimate of 
the burden of the proposed collections of information, including the 
validity of the methodology and assumptions used;
     Enhancing the quality, usefulness, and clarity of the 
information to be collected; and
     Minimizing the burden of the collections of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of responses.
    The collections of information contained in 38 CFR 3.160(c), 
3.2501, 3.2601, 8.30, 20.202, 21.416, and 21.1034 are described 
immediately following this paragraph. VA intends to revise OMB Control 
No. 2900-0674 so that it will contain all appeals-related information 
collections for the legacy and new systems, including the four claims 
and appeals related information collections previously approved under 
OMB Control No. 2900-0085. OMB Control No. 2900-0085 will be 
discontinued upon approval of the request to renew 2900-0674. As 
discussed in the regulatory impact analysis, VA believes that the net 
impact of the reorganization of the collections of information is 
likely to be deregulatory.
    For each of the new or proposed collections of information below, 
VBA used general wage data from the Bureau of Labor Statistics (BLS) to 
estimate the respondents' costs associated with completing the 
information collection. According to the latest available BLS data, the 
mean hourly wage of full-time wage and salary workers was $24.34 based 
on the BLS wage code--``00-0000 All Occupations.'' This information was 
taken from the following website: https://www.bls.gov/oes/current/oes_nat.htm (May 2017).
    Title: Veteran's Supplemental Claim Application (VA Form 20-0995).
    OMB Control No.: 2900-XXXX (NEW).
    CFR Provisions: 38 CFR 3.160(c), 3.2501, 8.30, 21.416, and 21.1034.
    Summary of collection of information: VA administers an integrated 
program of benefits and services, established by law, for veterans, 
service personnel, and their dependents and/or beneficiaries. Title 38 
U.S.C. 5101(a) provides that a specific claim in the form provided by 
the Secretary must be filed in order for benefits to be paid to any 
individual under the laws administered by the Secretary. VA is 
proposing a new information collection in this proposed regulatory 
action under 38 CFR 3.160(c), 3.2501, 8.30, 21.416, and 21.1034 for 
supplemental claims in accordance with Public Law 115-55. Public Law 
115-55 includes a new review option for Veterans or claimants who 
disagree with a VA claims decision know as a ``supplemental claim'' 
that is conducted within the agency of original jurisdiction. This 
review option is designed to allow submission of new and relevant 
evidence in connection with a previously decided claim. The new 
collection of information in

[[Page 39840]]

proposed 38 CFR 3.160(c), 3.2501, and 8.30 would require claimants to 
submit VA Form 20-0995 in either paper or electronic submission, where 
applicable, in order to initiate a supplemental claim for VA disability 
compensation benefits. Description of need for information and proposed 
use of information: The collection of information is necessary to 
determine the issue(s) that a claimant is dissatisfied with and seeks 
to initiate a supplemental claim for VA disability compensation 
benefits. VA will use this information to initiate or determine the 
veteran's eligibility to apply for a supplemental claim in accordance 
with Public Law 115-55.
    Description of likely respondents: Veterans or claimants who 
indicate dissatisfaction with a decision issued by a local VA office 
and would like review of new and relevant evidence in support of his or 
her claim for disability compensation benefits. VA cannot make further 
assumptions about the population of respondents because of the 
variability of factors such as the educational background and wage 
potential of respondents. Therefore, VBA used general wage data to 
estimate the respondents' costs associated with completing the 
information collection.
    Estimated number of respondents per month/year: 80,000 annually.
    Estimated frequency of responses per month/year: One time for most 
Veterans or claimants; however, the frequency of responses is also 
dependent on the number of claims submitted on this form by the 
claimant as VA does not limit the number of claims that a claimant can 
submit.
    Estimated average burden per response: 15 minutes.
    Estimated total annual reporting and recordkeeping burden: 20,000 
hours.
    Estimated cost to respondents per year: VBA estimates the total 
cost to all respondents to be $486,800 per year (20,000 burden hours x 
$24.34 per hour). Legally, respondents may not pay a person or business 
for assistance in completing the information collection. Therefore, 
there are no expected overhead costs for completing the information 
collection.

    Title: Application for Higher-Level Review (VA Form 20-0996).
    OMB Control No.: 2900-XXXX (NEW).
    CFR Provisions: 38 CFR 3.2601, 8.30, 21.416, and 21.1034.
    Summary of collection of information: VA administers an integrated 
program of benefits and services, established by law, for veterans, 
service personnel, and their dependents and/or beneficiaries. Title 38 
U.S.C. 5101(a) provides that a specific claim in the form provided by 
the Secretary must be filed in order for benefits to be paid to any 
individual under the laws administered by the Secretary. The new 
collection of information in proposed 38 CFR 3.2601, 8.30, 21.416, and 
21.1034 would require claimants to submit VA prescribed applications in 
either paper or electronic submission of responses, where applicable, 
in order to request a higher-level review of a VA decision on a claim 
for benefits.
    Description of need for information and proposed use of 
information: The collection of information is necessary to determine 
the issue(s) that a claimant is dissatisfied with and seeks higher-
level review of by VA. VA will use this information to initiate a 
higher-level review by an agency adjudicator in accordance with Public 
Law 115-55.
    Description of likely respondents: Veterans or claimants who 
indicate dissatisfaction with a decision issued by a local VA office.
    Estimated number of respondents per month/year: 35,000 annually.
    Estimated frequency of responses per month/year: One response 
total.
    Estimated average burden per response: 15 minutes.
    Estimated total annual reporting and recordkeeping burden: 8,750 
hours.
    Estimated cost to respondents per year: As above, VBA used May 2017 
general wage data to estimate the respondents' costs associated with 
completing the information collection. VBA estimates the total cost to 
all respondents to be $212,975 per year (8,750 burden hours x $24.34 
per hour). Legally, respondents may not pay a person or business for 
assistance in completing the information collection. Therefore, there 
are no expected overhead costs for completing the information 
collection.

    Title: Notice of Disagreement (VA Form 10182).
    OMB Control No.: 2900-0674.
    CFR Provisions: 38 CFR 20.202.
    Summary of collection of information: Proposed 38 CFR 20.202 would 
require that in order for a claimant to appeal one or more previously 
decided issues to the Board, that claimant must file a Notice of 
Disagreement in the form prescribed by VA. In order to promote 
efficiency in the adjudication process while ensuring that the process 
is simple and reliable for claimants, VA will require the use of a 
specific form for this purpose. VA Form 10182 will be titled the Notice 
of Disagreement. To be accepted by the Board, a complete Notice of 
Disagreement will be required to identify the specific determination 
with which the claimant disagrees, and must indicate if the claimant 
requests to have a hearing before the Board, an opportunity to submit 
additional evidence, or neither. 38 U.S.C. 7105(b)(2). Additionally, in 
order to permit appellants and their representatives to exercise their 
appeal-related rights, the information collected will include 
withdrawals of services by representatives (proposed 38 CFR 20.6), 
requests by appellants for changes in hearing dates or methods 
(proposed 38 CFR 20.703), and motions for reconsideration of Board 
decisions (proposed 38 CFR 20.1002).
    Description of need for information and proposed use of 
information: This collection of information is necessary to permit 
claimants to appeal to the Board, to identify their request for a 
hearing and selection of the evidentiary record on appeal, to request 
new times or methods for hearings, to seek reconsideration of Board 
decisions, and so that representatives may effectively move to withdraw 
their representation of a claimant.
    Description of likely respondents: Veterans or claimants who 
indicate dissatisfaction with a decision issued by a local VA office, 
and who are appealing one more issues in that decision to the Board.
    Estimated number of respondents per month/year: 43,000 annually.
    Estimated frequency of responses per month/year: One response per 
respondent accounted for above.
    Estimated average burden per response: An average of 30 minutes.
    Estimated total annual reporting and recordkeeping burden: 21,500 
hours annually.
    Estimated cost to respondents per year: The respondent population 
for this information collection is composed of individual appellants or 
their representative. In this regard, VA notes that the earning 
capacity of individual appellants spans an extremely wide spectrum. 
Additionally, an appellant's representative may be an employee of a 
recognized Veterans' service organization who provides appellate 
services as part of their overall free services to Veterans, or may be 
an attorney-at-law or accredited agent that charges a fee. VA cannot 
make further assumptions about the population of respondents because of 
the variability of factors such as the educational background and wage 
potential of respondents. Therefore, VBA used the BLS general wage data 
from May 2017 to estimate the respondents' costs associated with 
completing the information collection. VA seeks

[[Page 39841]]

comment as to whether use of the general wage data is appropriate in 
light of this wide spectrum of earning capacity in individual 
respondents. VA estimates the total cost to respondents using VA Form 
10182 in the new appeals system to be $523,310 per year (21,500 burden 
hours x $24.34 per hour).
    The total costs of these information collections to respondents is 
estimated to be $8.4 million over a five-year period (FY2019-FY2023).

Regulatory Flexibility Act

    The Secretary hereby certifies that these regulatory amendments 
would not have a significant economic impact on a substantial number of 
small entities as they are defined in the Regulatory Flexibility Act, 5 
U.S.C. 601-612. These amendments would not directly affect any small 
entities. Only VA beneficiaries and their survivors could be directly 
affected. Therefore, pursuant to 5 U.S.C. 605(b), these amendments are 
exempt from the initial and final regulatory flexibility analysis 
requirements of sections 603 and 604.

Executive Orders 12866, 13563, 13771

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, when 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, and other advantages; distributive impacts; 
and equity). Executive Order 13563 (Improving Regulation and Regulatory 
Review) emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
Executive Order 12866 (Regulatory Planning and Review) defines a 
``significant regulatory action,'' which requires review by OMB, as 
``any regulatory action that is likely to result in a rule that may: 
(1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities; (2) Create a serious inconsistency or otherwise interfere 
with an action taken or planned by another agency; (3) Materially alter 
the budgetary impact of entitlements, grants, user fees, or loan 
programs or the rights and obligations of recipients thereof; or (4) 
Raise novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in this Executive 
Order.''
    The economic, interagency, budgetary, legal, and policy 
implications of this proposed rule have been examined, and it has been 
determined that this is an economically significant regulatory action 
under Executive Order 12866. This proposed rule is expected to be an 
E.O. 13771 deregulatory action. Details on the estimated cost savings 
of this proposed rule can be found in the rule's economic analysis. 
VA's impact analysis can be found as a supporting document at https://www.regulations.gov, usually within 48 hours after the rulemaking 
document is published. Additionally, a copy of the rulemaking and its 
impact analysis are available on VA's website at https://www.va.gov/orpm 
by following the link for VA Regulations Published from FY 2004 Through 
Fiscal Year to Date.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in an expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector of $100 million or more (adjusted annually for 
inflation) in any given year. This rule would have no such effect on 
State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance Numbers and Titles

    The Catalog of Federal Domestic Assistance program numbers and 
titles for this rule are 64.100, Automobiles and Adaptive Equipment for 
Certain Disabled Veterans and Members of the Armed Forces; 64.101, 
Burial Expenses Allowance for Veterans; 64.102, Compensation for 
Service-Connected Deaths for Veterans' Dependents; 64.103, Life 
Insurance for Veterans; 64.104, Pension for Non-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.

List of Subjects

38 CFR Part 3

    Administrative practice and procedure, Claims, Disability benefits, 
Health care, Pensions, Radioactive materials, Veterans, Vietnam.

38 CFR Part 8

    Life insurance; Military personnel; Veterans.

38 CFR Part 14

    Administrative practice and procedure, Claims, Courts, Foreign 
relations, Government employees, Lawyers, Legal services, Organization 
and functions (Government agencies), Reporting and recordkeeping 
requirements, Surety bonds, Trusts and trustees, Veterans.

38 CFR Parts 19 and 20

    Administrative practice and procedure, Claims, Veterans.

38 CFR Part 21

    Administrative practice and procedure, Armed forces,Civil rights, 
Claims, Colleges and universities, Conflict of interests, Defense 
Department, Education, Employment, Grant programs-education, Grant 
programs-veterans, Health care, Loan programs-education, Loan programs-
veterans, Manpower training programs, Reporting and recordkeeping 
requirements, Schools, Travel and transportation expenses, Veterans, 
Vocational education, Vocational rehabilitation.

Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this 
document and authorized the undersigned to sign and submit the document 
to the Office of the Federal Register for publication electronically as 
an official document of the Department of Veterans Affairs. Peter M. 
O'Rourke, Chief of Staff, Department of Veterans Affairs, approved this 
document on April 24, 2018, for publication.


[[Page 39842]]


    Dated: July 18, 2018.
Jeffrey M. Martin,
Impact Analyst, Office of Regulation Policy & Management, Office of the 
Secretary, Department of Veterans Affairs.

    For the reasons set forth in the preamble, VA proposes to amend 38 
CFR parts 3, 8, 14, 19, 20, and 21 as follows:

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity 
Compensation

0
1. The authority citation for part 3, subpart A continues to read as 
follows:

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

0
 2. Amend Sec.  3.1 by revising paragraph (p) to read as follows:


Sec.  3.1  Definitions.

* * * * *
    (p) Claim means a written communication requesting a determination 
of entitlement or evidencing a belief in entitlement, to a specific 
benefit under the laws administered by the Department of Veterans 
Affairs submitted on an application form prescribed by the Secretary. 
(See scope of claim, Sec.  3.155(d)(2); complete claim, Sec.  
3.160(a)).
    (1) Initial claim. An initial claim is any complete claim, other 
than a supplemental claim, for a benefit on a form prescribed by the 
Secretary. Initial claims include:
    (i) An original claim for one or more benefits, which is the first 
complete claim received by VA (see original claim, Sec.  3.160(b)).
    (ii) A new claim requesting service connection for a disability or 
grant of a new benefit, and
    (iii) A claim for increase in a disability evaluation rating or 
rate of a benefit paid.
    (2) Supplemental claim. A supplemental claim is any complete claim 
for a VA benefit on an application form prescribed by the Secretary 
where an initial claim for the same or similar benefit on the same or 
similar basis was previously decided. (See supplemental claim; Sec.  
3.2501).
* * * * *
0
3. Amend Sec.  3.103 by revising the section heading and paragraphs 
(b)(1), (c), (d), and (f) to read as follows:


Sec.  3.103   Procedural due process and other rights.

* * * * *
    (b) * * *
    (1) General. Claimants and their representatives are entitled to 
notice of any decision made by VA affecting the payment of benefits or 
the granting of relief. Such notice will clearly set forth the elements 
described under paragraph (f) of this section, the right to a hearing 
on any issue involved in the claim when applicable, the right of 
representation, and the right, as well as the necessary procedures and 
time limits to initiate a higher-level review, supplemental claim, or 
appeal to the Board of Veterans' Appeals.
* * * * *
    (c) Submission of evidence. (1) General rule. VA will include in 
the record, any evidence whether documentary, testimonial, or in other 
form, submitted by the claimant in support of a pending claim and any 
issue, contention, or argument a claimant may offer with respect to a 
claim, except as prescribed in paragraph (2) of this section and Sec.  
3.2601(f).
    (2) Treatment of evidence received after notice of a decision. The 
evidentiary record for a claim before the agency of original 
jurisdiction closes when VA issues notice of a decision on the claim. 
The agency of original jurisdiction will not consider, or take any 
other action on evidence submitted by a claimant after notice of 
decision on a claim, and such evidence will not be considered part of 
the record at the time of any decision by the agency of original 
jurisdiction, except under the following circumstances:
    (i) The agency of original jurisdiction subsequently receives a 
complete application for a supplemental claim or claim for increase; or
    (ii) A claim is pending readjudication after identification of a 
duty to assist error during a higher-level review or appeal to the 
Board of Veterans' Appeals. Those events reopen the record and any 
evidence previously submitted to the agency of original jurisdiction 
while the record was closed will become part of the record to be 
considered upon readjudication.
    (d) The right to a hearing. (1) Upon request, a claimant is 
entitled to a hearing on any issue involved in a claim within the 
purview of part 3 of this chapter before VA issues notice of a decision 
on an initial or supplemental claim. A hearing is not available in 
connection with a request for higher level review under Sec.  3.2601. 
VA will provide the place of hearing in the VA field office having 
original jurisdiction over the claim, or at the VA office nearest the 
claimant's home having adjudicative functions, or videoconference 
capabilities, or, subject to available resources and solely at the 
option of VA, at any other VA facility or federal building at which 
suitable hearing facilities are available. VA will provide one or more 
employees who have original determinative authority of such issues to 
conduct the hearing and be responsible for establishment and 
preservation of the hearing record. Upon request, a claimant is 
entitled to a hearing in connection with proposed adverse actions 
before one or more VA employees having original determinative authority 
who did not participate in the proposed action. All expenses incurred 
by the claimant in connection with the hearing are the responsibility 
of the claimant.
    (2) The purpose of a hearing is to permit the claimant to introduce 
into the record, in person, any available evidence which he or she 
considers relevant and any arguments or contentions with respect to the 
facts and applicable law which he or she may consider pertinent. All 
testimony will be under oath or affirmation. The claimant is entitled 
to produce witnesses, but the claimant and witnesses must be present. 
The agency of original jurisdiction will not normally schedule a 
hearing for the sole purpose of receiving argument from a 
representative. It is the responsibility of the VA employees conducting 
the hearings to explain fully the issues and suggest the submission of 
evidence which the claimant may have overlooked and which would be of 
advantage to the claimant's position. To assure clarity and 
completeness of the hearing record, questions which are directed to the 
claimant and to witnesses are to be framed to explore fully the basis 
for claimed entitlement rather than with an intent to refute evidence 
or to discredit testimony.
* * * * *
    (f) Notification of decisions. The claimant or beneficiary and his 
or her representative will be notified in writing of decisions 
affecting the payment of benefits or granting of relief. Written 
notification must include in the notice letter or enclosures or a 
combination thereof, all of the following elements:
    (1) Identification of the issues adjudicated;
    (2) A summary of the evidence considered;
    (3) A summary of the laws and regulations applicable to the claim;
    (4) A listing of any findings made by the adjudicator that are 
favorable to the claimant under Sec.  3.104(c);
    (5) For denied claims, identification of the element(s) required to 
grant the claim(s) that were not met;
    (6) If applicable, identification of the criteria required to grant 
service

[[Page 39843]]

connection or the next higher-level of compensation;
    (7) An explanation of how to obtain or access evidence used in 
making the decision; and
    (8) A summary of the applicable review options under Sec.  3.2500 
available for the claimant to seek further review of the decision.
* * * * *
0
4. Amend Sec.  3.104 as follows:
0
a. Revise the section heading;
0
b. Revise paragraph (a);
0
c. Add a heading to paragraph (b); and
0
d. Add paragraph (c).
    The revisions and additions read as follows:


Sec.  3.104   Binding nature of decisions.

    (a) Binding decisions. A decision of a VA rating agency is binding 
on all VA field offices as to conclusions based on the evidence on file 
at the time VA issues written notification in accordance with 38 U.S.C. 
5104. A binding agency decision is not subject to revision except by 
the Board of Veterans' Appeals, by federal court order, or as provided 
in Sec. Sec.  3.105, 3.2500, and 3.2600.
    (b) Binding administrative determinations. * * *
    (c) Favorable findings. Any finding favorable to the claimant made 
by either a VA adjudicator, as described in 3.103(f)(4), or by the 
Board of Veterans' Appeals, as described in 20.801(a) of this chapter, 
is binding on all subsequent VA and Board of Veterans' Appeals 
adjudicators, unless rebutted by clear and convincing evidence to the 
contrary. For purposes of this section, a finding means a conclusion 
either on a question of fact or on an application of law to facts made 
by an adjudicator concerning the issue(s) under review.
0
5. Amend Sec.  3.105 by revising paragraphs (a) and (b), and adding 
paragraph (j) to read as follows:


Sec.  3.105  Revision of decisions.

* * * * *
    (a)(1) Error in final decisions. Decisions are final when the 
underlying claim is finally adjudicated as provided in Sec.  3.160(d). 
Final decisions will be accepted by VA as correct with respect to the 
evidentiary record and the law that existed at the time of the 
decision, in the absence of clear and unmistakable error. At any time 
after a decision is final, the claimant may request, or VA may 
initiate, review of the decision to determine if there was a clear and 
unmistakable error in the decision. Where evidence establishes such 
error, the prior decision will be reversed or amended.
    (i) Definition of clear and unmistakable error. A clear and 
unmistakable error is a very specific and rare kind of error. It is the 
kind of error, of fact or of law, that when called to the attention of 
later reviewers compels the conclusion, to which reasonable minds could 
not differ, that the result would have been manifestly different but 
for the error. If it is not absolutely clear that a different result 
would have ensued, the error complained of cannot be clear and 
unmistakable. Generally, either the correct facts, as they were known 
at the time, were not before VA, or the statutory and regulatory 
provisions extant at the time were incorrectly applied.
    (ii) Effective date of reversed or revised decisions. For the 
purpose of authorizing benefits, the rating or other adjudicative 
decision which constitutes a reversal or revision of a prior decision 
on the grounds of clear and unmistakable error has the same effect as 
if the corrected decision had been made on the date of the reversed 
decision. Except as provided in paragraphs (d) and (e) of this section, 
where an award is reduced or discontinued because of administrative 
error or error in judgment, the provisions of Sec.  3.500(b)(2) will 
apply.
    (iii) Record to be reviewed. Review for clear and unmistakable 
error in a prior final decision of an agency of original jurisdiction 
must be based on the evidentiary record and the law that existed when 
that decision was made. The duty to assist in Sec.  3.159 does not 
apply to requests for revision based on clear and unmistakable error.
    (iv) Change in interpretation. Clear and unmistakable error does 
not include the otherwise correct application of a statute or 
regulation where, subsequent to the decision being challenged, there 
has been a change in the interpretation of the statute or regulation.
    (v) Limitation on Applicability. Decisions of an agency of original 
jurisdiction on issues that have been decided on appeal by the Board or 
a court of competent jurisdiction are not subject to revision under 
this subsection.
    (vi) Duty to assist not applicable. For examples of situations that 
are not clear and unmistakable error see 38 CFR 20.1403(d).
    (vii) Filing Requirements. (A) General. A request for revision of a 
decision based on clear and unmistakable error must be in writing, and 
must be signed by the requesting party or that party's authorized 
representative. The request must include the name of the claimant; the 
name of the requesting party if other than the claimant; the applicable 
Department of Veterans Affairs file number; and the date of the 
decision to which the request relates. If the applicable decision 
involved more than one issue, the request must identify the specific 
issue, or issues, to which the request pertains.
    (B) Specific allegations required. The request must set forth 
clearly and specifically the alleged clear and unmistakable error, or 
errors, of fact or law in the prior decision, the legal or factual 
basis for such allegations, and why the result would have been 
manifestly different but for the alleged error. Non-specific 
allegations of failure to follow regulations or failure to give due 
process, or any other general, non-specific allegations of error, are 
insufficient to satisfy the requirement of the previous sentence.
    (2) Error in binding decisions prior to final adjudication. Prior 
to the time that a claim is finally adjudicated, previous decisions 
which are binding will be accepted as correct by an adjudicative 
agency, with respect to the evidentiary record and law existing at the 
time of the decision, unless the outcome is clearly erroneous, after 
considering whether any favorable findings may be reversed as provided 
in Sec.  3.104(c).
    (b) Difference of opinion. Whenever an adjudicative agency is of 
the opinion that a revision or an amendment of a previous decision is 
warranted on the basis of the evidentiary record and law that existed 
at the time of the decision, a difference of opinion being involved 
rather than a clear and unmistakable error, the proposed revision will 
be recommended to Central Office. However, a decision may be revised 
under Sec.  3.2600 or Sec.  3.2601 without being recommended to Central 
Office.
* * * * *
    (j) Supplemental claims and higher-level review. VA may revise an 
earlier decision denying benefits, if warranted, upon resolution of a 
supplemental claim under Sec.  3.160(c) or higher-level review under 
Sec.  3.2601.


Sec.  3.110   [Amended]

0
6. Amend Sec.  3.110(b) by removing ``Sec. Sec.  20.302 and 20.305'' 
from the last sentence and adding in its place ``Sec. Sec.  19.52, 
20.203, and 20.110''.
0
7. Amend Sec.  3.151 as follows:
0
a. Revise paragraph (a); and
0
b. Add paragraphs (c) and (d);
    The revisions and additions read as follows:


Sec.  3.151  Claims for disability benefits.

    (a) General. A specific claim in the form prescribed by the 
Secretary must be filed in order for benefits to be paid to any 
individual under the laws administered by VA. (38 U.S.C. 5101(a)). A 
claim by a veteran for compensation

[[Page 39844]]

may be considered to be a claim for pension; and a claim by a veteran 
for pension may be considered to be a claim for compensation. The 
greater benefit will be awarded, unless the claimant specifically 
elects the lesser benefit. (See scope of claim, Sec.  3.155(d)(2); 
complete claim, Sec.  3.160(a); supplemental claims, Sec.  3.2501(b)).
* * * * *
    (c) Issues within a claim. (1) To the extent that a complete claim 
application encompasses a request for more than one determination of 
entitlement, each specific entitlement will be adjudicated and is 
considered a separate issue for purposes of the review options 
prescribed in Sec.  3.2500. A single decision by an agency of original 
jurisdiction may adjudicate multiple issues in this respect, whether 
expressly claimed or determined by VA to be reasonably within the scope 
of the application as prescribed in Sec.  3.155(d)(2). VA will issue a 
decision that addresses each such identified issue within a claim. Upon 
receipt of notice of a decision, a claimant may elect any of the 
applicable review options prescribed in Sec.  3.2500 for each issue 
adjudicated.
    (2) With respect to service-connected disability compensation, an 
issue for purposes of paragraph (c)(1) of this section is defined as 
entitlement to compensation for a particular disability. For example, 
if a decision adjudicates service-connected disability compensation for 
both a knee condition and an ankle condition, compensation for each 
condition is a separate entitlement or issue for which a different 
review option may be elected. However, different review options may not 
be selected for specific components of the knee disability claim, such 
as ancillary benefits, whether a knee injury occurred in service, or 
whether a current knee condition resulted from a service-connected 
injury or condition.
    (d) Evidentiary record. The evidentiary record before the agency of 
original jurisdiction for an initial or supplemental claim includes all 
evidence received by VA before VA issues notice of a decision on the 
claim. Once the agency of original jurisdiction issues notice of a 
decision on a claim, the evidentiary record closes as described in 
Sec.  3.103(c)(2) and VA no longer has a duty to assist in gathering 
evidence under Sec.  3.159. (See Sec.  3.155(b), submission of 
evidence).
* * * * *
0
8. Amend Sec.  3.155 by revising the second sentence of the 
introductory text and paragraph (d)(1) to read as follows:


Sec.  3.155  How to file a claim.

    * * * The provisions of this section are applicable to all claims 
governed by part 3, with the exception that paragraph (b) of this 
section, regarding intent to file a claim, does not apply to 
supplemental claims.
* * * * *
    (d) * * *
    (1) Requirement for complete claim and date of claim. A complete 
claim is required for all types of claims, and will generally be 
considered filed as of the date it was received by VA for an evaluation 
or award of benefits under the laws administered by the Department of 
Veterans Affairs. For supplemental claims, if VA received a complete 
claim within 1 year of the filing of an incomplete claim, as provided 
in paragraph (c) of this section, it will be considered filed as of the 
date of receipt of the incomplete claim. For other types of claims, if 
VA receives a complete claim within 1 year of the filing of an intent 
to file a claim that meets the requirements of paragraph (b) of this 
section, it will be considered filed as of the date of receipt of the 
intent to file a claim. Only one complete claim for a benefit (e.g., 
compensation, pension) may be associated with each intent to file a 
claim for that benefit, though multiple issues may be contained within 
a complete claim. In the event multiple complete claims for a benefit 
are filed within 1 year of an intent to file a claim for that benefit, 
only the first claim filed will be associated with the intent to file a 
claim. In the event that VA receives both an intent to file a claim and 
an incomplete application form before the complete claim as defined in 
Sec.  3.160(a) is filed, the complete claim will be considered filed as 
of the date of receipt of whichever was filed first provided it is 
perfected within the necessary timeframe, but in no event will the 
complete claim be considered filed more than one year prior to the date 
of receipt of the complete claim.
0
9. Amend Sec.  3.156 as follows:
0
a. Revise the section heading;
0
b. Add introductory text;
0
c. Revise paragraph (a);
0
d. In the authority immediately following paragraph (a), remove 
``5103A(f)'' and add in its place ``5103A(h)'';
0
e. Revise the heading of paragraph (b);
0
f. Add new paragraph (d);
    The revisions and additions read as follows:


Sec.  3.156  New evidence.

    New evidence means evidence not previously submitted to agency 
adjudicators.
    (a) New and material evidence. For claims to reopen decided prior 
to the effective date provided in Sec.  19.2(a), the following 
standards apply. A claimant may reopen a finally adjudicated legacy 
claim by submitting new and material evidence. Material evidence means 
existing evidence that, by itself or when considered with previous 
evidence of record, relates to an unestablished fact necessary to 
substantiate the claim. New and material evidence can be neither 
cumulative nor redundant of the evidence of record at the time of the 
last prior final denial of the claim sought to be reopened, and must 
raise a reasonable possibility of substantiating the claim.

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


    (b) Pending legacy claims not under the modernized review system.
* * * * *
    (d) New and relevant evidence. On or after the effective date 
provided in Sec.  19.2(a), a claimant may file a supplemental claim as 
prescribed in Sec.  3.2501. If new and relevant evidence is presented 
or secured with respect to the supplemental claim, the agency of 
original jurisdiction will readjudicate the claim taking into 
consideration all of the evidence of record.
* * * * *
0
10. Amend Sec.  3.158 by revising the first sentence of paragraph (a) 
to read as follows:


Sec.  3.158   Abandoned claims.

    (a) General. Except as provided in Sec.  3.652, where evidence 
requested in connection with an initial claim or supplemental claim or 
for the purpose of determining continued entitlement is not furnished 
within 1 year after the date of request, the claim will be considered 
abandoned.
* * * * *
0
11. Amend Sec.  3.159 as follows:
0
a. Revise paragraph (a)(3);
0
b. Revise the first sentence of paragraph (b)(1);
0
c. Revise paragraph (b)(3);
0
d. Revise paragraph (c) introductory text;
0
e. Revise paragraph (c)(4)(iii);
0
f. Add paragraph (c)(4)(iv); and
0
g. Remove the text ``for a claim'' and adding in its place the text 
``for an initial or supplemental claim'' in paragraph (d) introductory 
text.
    The revisions read as follows:


Sec.  3.159  Department of Veterans Affairs assistance in developing 
claims.

    (a) * * *
    (3) Substantially complete application means an application 
containing:
    (i) The claimant's name;

[[Page 39845]]

    (ii) His or her relationship to the veteran, if applicable;
    (iii) Sufficient service information for VA to verify the claimed 
service, if applicable;
    (iv) The benefit sought and any medical condition(s) on which it is 
based;
    (v) The claimant's signature; and
    (vi) In claims for nonservice-connected disability or death pension 
and parents' dependency and indemnity compensation, a statement of 
income;
    (vii) In supplemental claims, identification or inclusion of 
potentially new evidence;
    (viii) For higher-level reviews, identification of the date of the 
decision for which review is sought.
* * * * *
    (b) VA's duty to notify claimants of necessary information or 
evidence. (1) Except as provided in paragraph (3) of this section, when 
VA receives a complete or substantially complete initial or 
supplemental claim, VA will notify the claimant of any information and 
medical or lay evidence that is necessary to substantiate the claim 
(hereafter in this paragraph referred to as the ``notice'').
* * * * *
    (3) No duty to provide the notice described in paragraph (b)(1) of 
this section arises:
    (i) Upon receipt of a supplemental claim under Sec.  3.2501 within 
one year of the date VA issues notice of a prior decision;
    (ii) Upon receipt of a request for higher-level review under Sec.  
3.2601;
    (iii) Upon receipt of a Notice of Disagreement under Sec.  20.202 
of this chapter;
    or
    (iv) When, as a matter of law, entitlement to the benefit claimed 
cannot be established.
    (c) VA's duty to assist claimants in obtaining evidence. VA has a 
duty to assist claimants in obtaining evidence to substantiate all 
substantially complete initial and supplemental claims, and when a 
claim is returned for readjudication by a higher-level adjudicator or 
the Board after identification of a duty to assist error on the part of 
the agency of original jurisdiction, until the time VA issues notice of 
a decision on a claim or returned claim. VA will make reasonable 
efforts to help a claimant obtain evidence necessary to substantiate 
the claim. VA will not pay any fees charged by a custodian to provide 
records requested. When a claim is returned for readjudication by a 
higher-level adjudicator or the Board after identification of a duty to 
assist error, the agency of original jurisdiction has a duty to correct 
any other duty to assist errors not identified by the higher-level 
adjudicator or the Board.
* * * * *
    (4) * * *
    (iii) For requests to reopen a finally adjudicated claim received 
prior to the effective date provided in Sec.  19.2(a) of this chapter, 
paragraph (c)(4) of this section applies only if new and material 
evidence is presented or secured as prescribed in Sec.  3.156.
    (iv) Paragraph (c)(4) of this section applies to a supplemental 
claim only if new and relevant evidence under Sec.  3.2501 is presented 
or secured.
* * * * *
0
12. Amend Sec.  3.160 as follows:
0
a. Revise paragraphs (a), (d), and (e);
0
b. Remove paragraph (f); and
0
c. Revise the authority citation for paragraph (e).The revisions read 
as follows:


Sec.  3.160  Status of claims.

    (a) Complete Claim. A submission of an application form prescribed 
by the Secretary, whether paper or electronic, that meets the following 
requirements:
    (1) A complete claim must provide the name of the claimant; the 
relationship to the veteran, if applicable; and sufficient information 
for VA to verify the claimed service, if applicable.
    (2) A complete claim must be signed by the claimant or a person 
legally authorized to sign for the claimant.
    (3) A complete claim must identify the benefit sought.
    (4) A description of any symptom(s) or medical condition(s) on 
which the benefit is based must be provided to the extent the form 
prescribed by the Secretary so requires.
    (5) For nonservice-connected disability or death pension and 
parents' dependency and indemnity compensation claims, a statement of 
income must be provided to the extent the form prescribed by the 
Secretary so requires; and
    (6) For supplemental claims, potentially new evidence must be 
identified or included.
* * * * *
    (d) Finally adjudicated claim. A claim that is adjudicated by the 
Department of Veterans Affairs as either allowed or disallowed is 
considered finally adjudicated when:
    (1) For legacy claims not subject to the modernized review system, 
whichever of the following occurs first:
    (i) The expiration of the period in which to file a Notice of 
Disagreement, pursuant to the provisions of Sec.  19.52(a) or Sec.  
20.502(a) of this chapter, as applicable; or
    (ii) Disposition on appellate review.
    (2) For claims under the modernized review system, the expiration 
of the period in which to file a review option available under Sec.  
3.2500 or disposition on judicial review where no such review option is 
available.
    (e) Reopened claims prior to effective date of modernized review 
system. An application for a benefit received prior to the effective 
date provided in Sec.  19.2(a) of this chapter, after final 
disallowance of an earlier claim that is subject to readjudication on 
the merits based on receipt of new and material evidence related to the 
finally adjudicated claim, or any claim based on additional evidence or 
a request for a personal hearing submitted more than 90 days following 
notification to the appellant of the certification of an appeal and 
transfer of applicable records to the Board of Veterans' Appeals which 
was not considered by the Board in its decision and was referred to the 
agency of original jurisdiction for consideration as provided in Sec.  
20.1304(b)(1) of this chapter. As of the effective date provided in 
Sec.  19.2(a) of this chapter, claimants may no longer file to reopen a 
claim, but may file a supplemental claim as prescribed in Sec.  3.2501 
to apply for a previously disallowed benefit. A request to reopen a 
finally decided claim that has not been adjudicated as of the effective 
date will be processed as a supplemental claim subject to the 
modernized review system.

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

* * * * *
0
13. Remove and reserve Sec.  3.161.


Sec.  3.161  [Removed and Reserved].

0
14. Amend Sec.  3.328 as follows:
0
a. In paragraph (b), remove the text ``at the regional office level'' 
and add in its place ``before VA'';
0
b. Revise paragraph (c);
    The revision reads as follows:


Sec.  3.328  lndependent medical opinions.

* * * * *
    (c) Approval. (1) Requests for independent medical opinions shall 
be approved when one of the following conditions is met:
    (i) The director of the Service or his or her designee determines 
that the issue under consideration poses a medical problem of such 
obscurity or complexity, or has generated such controversy in the 
medical community at large, as to justify solicitation of an 
independent medical opinion; or
    (ii) The independent medical opinion is required to fulfill the 
instructions

[[Page 39846]]

contained in a remand order from the Board of Veterans' Appeals.
    (2) A determination that an independent medical opinion is not 
warranted may be contested only as part of an appeal to the Board of 
Veterans' Appeals on the merits of the decision rendered on the primary 
issue by VA.

(Authority: 38 U.S.C. 5109, 5701(b)(1); 5 U.S.C. 552a(f)(3))

* * * * *
0
15. Amend 3.400 as follows:
0
a. Revise the introductory text;
0
b. Revise paragraphs (h)(1) through (h)(3);
0
c. Revise paragraph (z)(2); and
0
d. Add paragraph (z)(3).
    The revisions read as follows:


Sec.  3.400  General.

    Except as otherwise provided, the effective date of an evaluation 
and award of pension, compensation, or dependency and indemnity 
compensation based on an initial claim or supplemental claim will be 
the date of receipt of the claim or the date entitlement arose, 
whichever is later. For effective date provisions regarding revision of 
a decision based on a supplemental claim or higher-level review, see 
Sec.  3.2500.
* * * * *
    (h) Difference of opinion (Sec.  3.105). (1) As to decisions not 
finally adjudicated (see Sec.  3.160(d)) prior to timely receipt of an 
application for higher-level review, or prior to readjudication on VA 
initiative, the date from which benefits would have been payable if the 
former decision had been favorable.
    (2) As to decisions which have been finally adjudicated (see Sec.  
3.160(d)), and notwithstanding other provisions of this section, the 
date entitlement arose, but not earlier than the date of receipt of the 
supplemental claim.
    (3) As to decisions which have been finally adjudicated (see 
3.160(d)) and readjudication is undertaken solely on VA initiative, the 
date of Central Office approval authorizing a favorable decision or the 
date of the favorable Board of Veterans' Appeals decision.
* * * * *
    (z) * * *
    (2) Reopened claims received prior to the effective date provided 
in Sec.  19.2(a) of this chapter: Latest of the following dates:
    (i) November 23, 1977.
    (ii) Date entitlement arose.
    (iii) One year prior to date of receipt of reopened claim.
    (3) Supplemental claims received more than one year after notice of 
decision: Latest of the following dates:
    (i) Date entitlement arose.
    (ii) One year prior to date of receipt of a supplemental claim.
0
16. In subpart A, remove the word ``reopened'' and add, in its place, 
the word ``supplemental'' in the following places:
0
a. Sec.  3.31
0
b. Sec.  3.114
0
c. Sec.  3.321
0
d. Sec.  3.326
0
e. Sec.  3.372
0
f. Sec.  3.401
0
g. Sec.  3.402
0
h. Sec.  3.404
0
i. Sec.  3.655
0
j. Sec.  3.812


Sec.  3.814  [Amended]

0
17. Amend Sec.  3.814 by removing the words ``original claim, a claim 
reopened after final disallowance, or a claim for increase'' and add, 
in its place, the words ``initial claim or supplemental claim'' from 
paragraph (e) introductory text.


 Sec.  3.815  [Amended]

0
18. Amend Sec.  3.815 by removing the words ``original claim, a claim 
reopened after final disallowance, or a claim for increase,'' and add, 
in its place, the words ``initial claim or supplemental claim'' from 
paragraph (i) introductory text.

Subpart D--Universal Adjudication Rules That Apply to Benefit 
Claims Governed by Part 3 of This Title

0
19. The authority citation for part 3, subpart D continues to read as 
follows:

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

0
20. Amend subpart D by adding Sec.  3.2400 to read as follows:


Sec.  3.2400   Applicability of modernized review system.

    (a) The modernized review system defined in 38 CFR 19.2(b) applies 
to all claims, requests for reopening of finally adjudicated claims, 
and requests for revision based on clear and unmistakable error:
    (1) For which VA issues notice of an initial decision on or after 
the effective date of the modernized review system as provided in 38 
CFR 19.2(a); or
    (2) Where a claimant has elected review of a legacy claim under the 
modernized review system as provided in paragraph (c) of this section.
    (b) Legacy claims. A legacy claim is a claim, or request for 
reopening or revision of a finally adjudicated claim, for which VA 
provided notice of a decision prior to the effective date of the 
modernized review system and the claimant has not elected to 
participate in the modernized review system as provided in paragraph 
(c) of this section.
    (c) Election into the modernized review system. For claims governed 
by this part, pursuant to election by a claimant, the modernized review 
system applies where:
    (1) Rapid appeals modernization program election. A claimant with a 
legacy appeal elects to opt-in to the modernized review system on or 
after November 1, 2017, as part of a program authorized by the 
Secretary pursuant to section 4 of Public Law 115-55; or
    (2) Election after receiving a statement of the case. A claimant 
with a legacy appeal elects to opt-in to the modernized review system, 
following issuance, on or after the effective date of the modernized 
system, of a VA Statement of the Case or Supplemental Statement of the 
Case, by filing for a review option under the new system in accordance 
with Sec.  3.2500 within the time allowed for filing a substantive 
appeal under 38 CFR 19.52(b) and other applicable provisions in part 19 
of this chapter.
    (d) Effect of election. Once an eligible claimant elects the 
modernized review system with respect to a particular claim, the 
provisions of 38 CFR parts 19 and 20 applicable to legacy claims and 
appeals no longer apply to that claim.
0
21. Amend subpart D by adding Sec.  3.2500 to read as follows:


Sec.  3.2500  Review of decisions.

    (a) Reviews available. (1) Within one year from the date on which 
the agency of original jurisdiction issues a notice of a decision on a 
claim or issue as defined in Sec.  3.151(c), except as otherwise 
provided in paragraphs (c), (e), and (f) of this section, a claimant 
may elect one of the following administrative review options by timely 
filing the appropriate form prescribed by the Secretary:
    (i) A request for higher-level review under Sec.  3.2601 or
    (ii) An appeal to the Board under Sec.  20.202 of this chapter.
    (2) At any time after VA issues notice of a decision on an issue 
within a claim, a claimant may file a supplemental claim under Sec.  
3.2501.
    (b) Concurrent election prohibited. With regard to the adjudication 
of a claim or an issue as defined in Sec.  3.151(c), a claimant who has 
filed for review under one of the options available under paragraph (a) 
of this section may not, while that review is pending final 
adjudication, file for review under a different available option. While 
the adjudication of a specific benefit is pending on appeal before a 
federal court, a claimant may not file for administrative review of the

[[Page 39847]]

claim under any of options listed in paragraph (a) of this section.
    (c) Continuously pursued issues. A claimant may continuously pursue 
a claim or an issue by timely and properly filing one of the following 
administrative review options, as specified, after any decision by the 
agency of original jurisdiction, Board of Veterans' Appeals, or entry 
of judgment by the U.S. Court of Appeals for Veterans Claims, provided 
that any appeal to the U.S. Court of Appeals for Veterans Claims is 
timely filed as determined by the court:
    (1) Following notice of a decision on a supplemental claim, the 
claimant may file another supplemental claim, request a higher-level 
review, or appeal to the Board of Veterans' Appeals.
    (2) Following notice of a decision on a higher-level review, the 
claimant may file a supplemental claim or appeal to the Board of 
Veterans' Appeals. (See appeal to the Board, 38 CFR 20.202).
    (3) Following notice of a decision on an appeal to the Board of 
Veterans' Appeals, the claimant may file a supplemental claim.
    (4) Following entry of judgment on an appeal to the Court of 
Appeals for Veterans Claims, the claimant may file a supplemental 
claim.
    (d) Voluntary withdrawal. A claimant may withdraw a supplemental 
claim or a request for a higher-level review at any time before VA 
renders a decision on the issue. A claimant may change the review 
option selected by withdrawing the request and filing the appropriate 
application for the requested review option within one year from the 
date on which VA issued notice of a decision on an issue.
    (e) Applicability. This section applies to claims and requests 
under the modernized review system as set forth in Sec.  3.2400, with 
the exception that a supplemental claim may not be filed in connection 
with a denial of a request to revise a final decision of the agency of 
original jurisdiction based on clear and unmistakable error .
    (f) Review of simultaneously contested claims. Notwithstanding 
other provisions of this part, a party to a simultaneously contested 
claim may only seek administrative review of a decision by the agency 
of original jurisdiction on such claim by filing an appeal to the Board 
as prescribed in Sec.  20.402 of this chapter within 60 days of the 
date VA issues notice of the decision on the claim. (See contested 
claims, 38 CFR 20.402).
    (g) Effective dates. (1) Continuously pursued claims. Except as 
otherwise provided by other provisions of this part, including Sec.  
3.400, the effective date will be fixed in accordance with the date of 
receipt of the initial claim or date entitlement arose, whichever is 
later, if a claimant continuously pursues an issue by timely filing in 
succession any of the available review options as specified in 
paragraph (c) of this section.
    (2) Supplemental claims received more than one year after notice of 
decision. Except as otherwise provided in this section, for 
supplemental claims received more than one year after the date on which 
the agency of original jurisdiction issues notice of a decision or the 
Board of Veterans' Appeals issued notice of a decision, the effective 
date will be fixed in accordance with date entitlement arose, but will 
not be earlier than the date of receipt of the supplemental claim.
0
22. Amend subpart D by adding Sec.  3.2501 to read as follows:


Sec.  3.2501   Supplemental claims.

    Except as otherwise provided, a claimant or his or her legal 
representative, if any, may file a supplemental claim (see Sec.  
3.1(p)(2)) by submitting a complete application (see Sec.  3.160(a)) in 
writing on a form prescribed by the Secretary any time after the agency 
of original jurisdiction issues notice of a decision, regardless of 
whether the claim is pending or has become finally adjudicated. If new 
and relevant evidence is presented or secured with respect to the 
supplemental claim, the agency of original jurisdiction will 
readjudicate the claim taking into consideration all of the evidence of 
record. If new and relevant evidence is not presented or secured, the 
agency of original jurisdiction will issue a decision finding that 
there was insufficient evidence to readjudicate the claim.
    (a) New and relevant evidence. The new and relevant standard will 
not impose a higher evidentiary threshold than the previous new and 
material evidence standard under Sec.  3.156(a).
    (1) Definition. New evidence is evidence not previously submitted 
to agency adjudicators. Relevant evidence is information that tends to 
prove or disprove a matter at issue in a claim. Relevant evidence 
includes evidence that raises a theory of entitlement that was not 
previously addressed.
    (2) Receipt prior to notice of a decision. New and relevant 
evidence received before VA issues its decision on a supplemental claim 
will be considered as having been filed in connection with the claim.
    (b) Evidentiary record. The evidentiary record for a supplemental 
claim includes all evidence received by VA before VA issues notice of a 
decision on the supplemental claim. For VA to readjudicate the claim, 
the evidentiary record must include new and relevant evidence that was 
not of record as of the date of notice of the prior decision.
    (c) Duty to assist. Upon receipt of a substantially complete 
supplemental claim, VA's duty to assist in the gathering of evidence 
under Sec.  3.159 of this part is triggered and includes any such 
assistance that may help secure new and relevant evidence as defined in 
paragraph (a) of this section to complete the supplemental claim 
application.
    (d) Date of filing. The filing date of a supplemental claim is 
determined according to Sec.  3.155, with the exception of the intent 
to file rule found in Sec.  3.155(b) which applies to initial claims.

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


0
23. Amend subpart D by adding Sec.  3.2502 to read as follows:


Sec.  3.2502   Return by higher-level adjudicator or remand by the 
Board of Veterans' Appeals.

    Upon receipt of a returned claim from a higher-level adjudicator or 
remand by the Board of Veterans' Appeals, the adjudication activity 
will take immediate action to expedite readjudication of the claim in 
accordance with 38 U.S.C. 5109B. The adjudication activity retains 
jurisdiction of the claim. In readjudicating the claim, the 
adjudication activity will correct all identified duty to assist 
errors, complete a new decision and issue notice to the claimant and or 
his or her legal representative in accordance with 3.103(f). The 
effective date of any evaluation and award of pension, compensation or 
dependency and indemnity compensation will be determined in accordance 
with the date of receipt of the initial claim as prescribed under Sec.  
3.2500(g).
0
24. Amend Sec.  3.2600 as follows:
0
a. Revise the section heading;
0
b. Add introductory text;
0
c. Remove paragraph (g).
    The revisions and additions read as follows:


Sec.  3.2600  Legacy review of benefit claims decisions.

    This section applies only to legacy claims as defined in Sec.  
3.2400 in which a Notice of Disagreement is timely filed on or after 
June 1, 2001, under regulations applicable at the time of filing.
* * * * *
0
25. Amend subpart D by adding Sec.  3.2601 to read as follows:

[[Page 39848]]

Sec.  3.2601  Higher-level review.

    (a) Applicability. This section applies to all claims under the 
modernized review system, with the exception of simultaneously 
contested claims.
    (b) Requirements for election. A claimant who is dissatisfied with 
a decision by the agency of original jurisdiction may file a request 
for higher-level review in accordance with Sec.  3.2500, by submitting 
a complete request for review on a form prescribed by the Secretary.
    (c) Complete request. A complete request for higher-level review is 
a submission of a request on a form prescribed by the Secretary, 
whether paper or electronic, that meets the following requirements:
    (1) A complete request must provide the name of the claimant and 
the relationship to the veteran, if applicable;
    (2) A complete request must be signed by the claimant or a person 
legally authorized to sign for the claimant; and
    (3) A complete request must specify the date of the underlying 
decision for which review is requested and specify the issues for which 
review is requested.
    (d) Filing period. A complete request for higher-level review must 
be received by VA within one year of the date of VA's issuance of the 
notice of the decision. If VA receives an incomplete request form, VA 
will notify the claimant and the claimant's representative, if any, of 
the information necessary to complete the request form prescribed by 
the Secretary. If a complete request is submitted within 60 days of the 
date of the VA notification of such incomplete request or prior to the 
expiration of the one year filing period, VA will consider it filed as 
of the date VA received the incomplete application form that did not 
meet the standards of a complete request.
    (e) Who may conduct a higher-level review. Higher-level review will 
be conducted by an experienced adjudicator who did not participate in 
the prior decision. Selection of a higher-level adjudicator to conduct 
a higher-level review is at VA's discretion. As a general rule, an 
adjudicator in an office other than the office that rendered the prior 
decision will conduct the higher-level review. An exception to this 
rule applies for claims requiring specialized processing, such as where 
there is only one office that handles adjudication of a particular type 
of entitlement. A claimant may request that the office that rendered 
the prior decision conduct the higher-level review, and VA will grant 
the request in the absence of good cause to deny.
    (f) Evidentiary record. The evidentiary record in a higher-level 
review is limited to the evidence of record as of the date the agency 
of original jurisdiction issued notice of the prior decision under 
review and the higher-level adjudicator may not consider additional 
evidence. The higher-level adjudicator may not order development of 
additional evidence that may be relevant to the claim under review, 
except as provided in paragraph (g).
    (g) Duty to assist errors. The higher-level adjudicator will ensure 
that VA complied with its statutory duty to assist (see Sec.  3.159) in 
gathering evidence applicable prior to issuance of the decision being 
reviewed. If the higher-level adjudicator both identifies a duty to 
assist error that existed at the time of VA's decision on the claim 
under review and cannot grant the maximum benefit for the claim, the 
higher-level adjudicator must return the claim to the adjudication 
activity for correction of the error and readjudication. Upon receipt, 
the adjudication activity will take immediate action to expedite 
readjudication of the claim in accordance with 38 U.S.C. 5109B.
    (1) For disability evaluations, the maximum benefit means the 
highest schedular evaluation allowed by law and regulation for the 
issue under review.
    (2) For ancillary benefits, the maximum benefit means the granting 
of the benefit sought.
    (3) For pension benefits or dependents indemnity compensation, the 
maximum benefit means granting the highest benefit payable.
    (h) Informal conferences. A claimant or his or her representative 
may include a request for an informal conference with a request for 
higher-level review. For purposes of this section, informal conference 
means contact with a claimant's representative or, if not represented, 
with the claimant, telephonically, or as otherwise determined by VA, 
for the sole purpose of allowing the claimant or representative to 
identify any errors of law or fact in a prior decision based on the 
record at the time the decision was issued. If requested, VA will make 
reasonable efforts to contact the claimant and/or the authorized 
representative to conduct one informal conference during a higher-level 
review, but if such reasonable efforts are not successful, a decision 
may be issued in the absence of an informal conference. The higher-
level adjudicator with determinative authority over the issue will 
conduct the informal conference, absent exceptional circumstances. VA 
will not receive any new evidence in support of the higher-level review 
during the informal conference in accordance with paragraph (d) of this 
section. Any expenses incurred by the claimant in connection with the 
informal conference are the responsibility of the claimant.
    (i) De novo review. The higher-level adjudicator will consider only 
those decisions and claims for which the claimant has requested higher-
level review, and will conduct a de novo review giving no deference to 
the prior decision, except as provided in Sec.  3.104(c).
    (j) Difference of opinion. The higher-level adjudicator may grant a 
benefit sought in the claim under review based on a difference of 
opinion (see Sec.  3.105(b)). However, any finding favorable to the 
claimant is binding except as provided in Sec.  3.104(c) of this part . 
In addition, the higher-level adjudicator will not revise the outcome 
in a manner that is less advantageous to the claimant based solely on a 
difference of opinion. The higher-level adjudicator may reverse or 
revise (even if disadvantageous to the claimant) prior decisions by VA 
(including the decision being reviewed or any prior decision) on the 
grounds of clear and unmistakable error under Sec.  3.105(a)(1) or 
(a)(2), as applicable, depending on whether the prior decision is 
finally adjudicated.
    (k) Notice requirements. Notice of a decision made under this 
section will include all of the elements described in Sec.  3.103(f), a 
general statement indicating whether evidence submitted while the 
record was closed was not considered, and notice of the options 
available to have such evidence considered.

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

PART 8--NATIONAL SERVICE LIFE INSURANCE

0
26. The authority citation for part 8 continues to read as follows:

    Authority:  38 U.S.C. 501, 1901-1929, 1981-1988, unless 
otherwise noted.

0
27. Amend Sec.  8.30 by:
0
a. Revising the section heading;
0
b. Revising paragraphs (a), (b), and (c);
0
c. Adding paragraphs (d) through (h).
    The revisions read as follows:


Sec.  8.30   Review of Decisions and Appeal to Board of Veterans' 
Appeals.

    (a) Decisions. This section pertains to insurance decisions 
involving questions arising under Parts 6, 7, 8, and 8a of this 
chapter, to include the denial of applications for insurance, total 
disability income provision, or reinstatement; disallowance of claims 
for insurance benefits; and decisions holding fraud or imposing 
forfeiture. The applicant or claimant and his or her representative, if 
any, will be notified in

[[Page 39849]]

writing of such a decision, which must include, in the notice letter or 
enclosures or a combination thereof, all of the following elements:
    (1) Identification of the issues adjudicated.
    (2) A summary of the evidence considered.
    (3) A summary of the applicable laws and regulations relevant to 
the decision.
    (4) Identification of findings that are favorable to the claimant.
    (5) For denials, identification of the element(s) not satisfied 
that led to the denial.
    (6) An explanation of how to obtain or access the evidence used in 
making the decision.
    (7) A summary of the applicable review options available for the 
claimant to seek further review of the decision.
    (b) Favorable findings. Any finding favorable to the claimant or 
applicant is binding on all subsequent VA and Board of Veterans' 
Appeals adjudicators, unless rebutted by clear and convincing evidence 
to the contrary.
    (c) Review of Decisions. Within one year from the date on which the 
agency of original jurisdiction issues notice of an insurance decision 
as outlined in paragraph (a) of this section, applicants or claimants 
may elect one of the following administrative review options by timely 
filing the appropriate form prescribed by the Secretary:
    (1) Supplemental Claim Review. The nature of this review will 
accord with Sec.  3.2501 of this title to the extent the terms used 
therein apply to insurance matters.
    (2) Request for a Higher-level Review. The nature of this review 
will accord with Sec.  3.2601 of this title to the extent the terms 
used therein apply to insurance matters. Higher-level reviews will be 
conducted by an experienced decision-maker who did not participate in 
the prior decision. Selection of an employee to conduct a higher-level 
review is at VA's discretion.
    (3) Board of Veterans' Appeals Review. See 38 CFR part 20.
    (d) Part 3 provisions. See Sec.  3.2500(b)-(d) of this title for 
principles that generally apply to a veteran's election of review of an 
insurance decision.
    (e) Applicability. This section applies where notice of an 
insurance decision was provided to an applicant or claimant on or after 
the effective date of the modernized review system as provided in Sec.  
19.2(a) of this title, or where an applicant or claimant has elected 
review of a legacy claim under the modernized review system as provided 
in Sec.  3.2400(c) of this title.
    (f) Unpaid premiums. When a claimant or applicant elects a review 
option under paragraph (c) of this section, any unpaid premiums, 
normally due under the policy from effective date of issue or 
reinstatement (as appropriate), will become an interest-bearing lien, 
enforceable as a legal debt due the United States and subject to all 
available collection procedures in the event of a favorable result for 
the claimant or applicant.
    (g) Premium payments. Despite a claimant's or applicant's election 
of a review option under paragraph (c) of this section, where the 
agency of original jurisdiction's decision involved a change in or 
addition to insurance currently in force, premium payments must be 
continued on the existing contract.
    (h) Section 1984. Nothing in this section shall limit an 
applicant's or claimant's right to pursue actions under 38 U.S.C. 1984.

(Authority: 38 U.S.C. 501, 1901-1929, 1981-1988)

PART 14--LEGAL SERVICES, GENERAL COUNSEL, AND MISCELLANEOUS CLAIMS

0
28. The authority citation for part 14 continues to read as follows:

    Authority:  5 U.S.C. 301; 28 U.S.C. 2671-2680; 38 U.S.C. 501(a), 
512, 515, 5502, 5901-5905; 28 CFR part 14, appendix to part 14, 
unless otherwise noted.

0
29. Amend Sec.  14.629 by:
0
a. Removing the introductory text.
0
b. In paragraph (b)(5), removing the words ``General Counsel or his or 
her designee'' and adding, in their place, the words ``Chief Counsel 
with subject-matter jurisdiction''.
0
c. Adding new paragraph (d) to read as follows:


Sec.  14.629   Requirements for accreditation of service organization 
representatives; agents; and attorneys.

* * * * *
    (d) Decisions on applications for accreditation. The Chief Counsel 
with subject-matter jurisdiction will conduct an inquiry and make an 
initial determination regarding any question relating to the 
qualifications of a prospective service organization representative, 
agent, or attorney.
    (1) If the Chief Counsel determines that the prospective service 
organization representative, agent, or attorney meets the requirements 
for accreditation in paragraphs (a) or (b) of this section, 
notification of accreditation will be issued by the Chief Counsel and 
will constitute authority to prepare, present, and prosecute claims 
before an agency of original jurisdiction or the Board of Veterans' 
Appeals.
    (2)(i) If the Chief Counsel determines that the prospective 
representative, agent, or attorney does not meet the requirements for 
accreditation, notification will be issued by the Chief Counsel 
concerning the reasons for disapproval, an opportunity to submit 
additional information, and any restrictions on further application for 
accreditation. If an applicant submits additional evidence, the Chief 
Counsel will consider such evidence and provide further notice 
concerning his or her final decision.
    (ii) The determination of the Chief Counsel regarding the 
qualifications of a prospective service organization representative, 
agent, or attorney is a final adjudicative determination of an agency 
of original jurisdiction that may only be appealed to the Board of 
Veterans' Appeals.
0
30. In Sec.  14.631(c) revise the second sentence to read as 
followings:


Sec.  14.631  Powers of attorney; disclosure of claimant information.

* * * * *
    (c) * * * This section is applicable unless 38 CFR 20.6 governs 
withdrawal from the representation.
* * * * *


Sec.  14.632  [Amended]

0
31. In Sec.  14.632(c)(6) remove the words ``representation provided 
before an agency of original jurisdiction has issued a decision on a 
claim or claims and a Notice of Disagreement has been filed with 
respect to that decision'' and add, in their place, the words 
``services for which a fee could not lawfully be charged''.
0
32. Amend Sec.  14.633 by:
0
a. In paragraph (e)(2)(i), adding the words ``before the Office of the 
General Counsel'' after the words ``close the record''.
0
b. In paragraph (e)(2)(ii), adding the words ``before the Office of the 
General Counsel'' after the words ``close the record''.
0
c. Revising paragraph (h).
0
d. In paragraph (i), adding the words ``suspended or'' before the word 
``cancelled''.
0
e. Adding new paragraph (j).
    The revision and addition read as follows:


Sec.  14.633  Termination of accreditation or authority to provide 
representation under Sec.  14.630.

* * * * *
    (h) The decision of the General Counsel is a final adjudicative 
determination of an agency of original

[[Page 39850]]

jurisdiction that may only be appealed to the Board of Veterans' 
Appeals.
    (1) Decisions issued before the effective date of the modernized 
review system. Notwithstanding provisions in this section for closing 
the record before the Office of the General Counsel at the end of the 
30-day period for filing an answer or 10 days after a hearing, appeals 
of decisions issued before the effective date of the modernized review 
system as provided in Sec.  19.2(a) of this chapter shall be initiated 
and processed using the procedures in 38 CFR parts 19 and 20 applicable 
to legacy appeals. Nothing in this section shall be construed to limit 
the Board's authority to remand a matter to which this paragraph (h)(1) 
applies to the General Counsel under 38 CFR 20.904 for any action that 
is essential for a proper appellate decision or the General Counsel's 
ability to issue a Supplemental Statement of the Case under 38 CFR 
19.31.
    (2) Decisions issued on or after the effective date of the 
modernized review system. Notwithstanding provisions in this section 
for closing the record before the Office of the General Counsel at the 
end of the 30-day period for filing an answer or 10 days after a 
hearing, appeals of decisions issued on or after the effective date of 
the modernized review system as provided in Sec.  19.2(a) of this 
chapter shall be initiated and processed using the procedures in 38 CFR 
part 20 applicable to appeals under the modernized system.
* * * * *
    (j) The effective date for suspension or cancellation of 
accreditation or authority to provide representation on a particular 
claim shall be the date upon which the General Counsel's final decision 
is rendered.
* * * * *
0
33. Amend Sec.  14.636 by:
0
a. Revising paragraph (c).
0
b. In paragraph (h)(3), removing all references to ``reopened'' and 
adding, in each place, the word ``readjudicated''.
0
c. Revising paragraph (i)(3).
0
d. Revising paragraph (k).
    The revisions read as follows:


Sec.  14.636   Payment of fees for representation by agents and 
attorneys in proceedings before Agencies of Original Jurisdiction and 
before the Board of Veterans' Appeals.

* * * * *
    (c) Circumstances under which fees may be charged. Except as noted 
in paragraph (d) of this section, agents and attorneys may only charge 
fees as follows:
    (1)(i) Agents and attorneys may charge claimants or appellants for 
representation provided after an agency of original jurisdiction has 
issued notice of an initial decision on the claim or claims, including 
any claim for an increase in rate of a benefit, if the notice of the 
initial decision was issued on or after the effective date of the 
modernized review system as provided in Sec.  19.2(a) of this chapter, 
and the agent or attorney has complied with the power of attorney 
requirements in Sec.  14.631 and the fee agreement requirements in 
paragraph (g) of this section. For purposes of this paragraph 
(c)(1)(i), a decision by an agency of original jurisdiction 
adjudicating a supplemental claim will be considered the initial 
decision on a claim unless that decision was made while the claimant 
continuously pursued the claim by filing any of the following, either 
alone or in succession: A request for higher-level review, on or before 
one year after the date on which the agency of original jurisdiction 
issued a decision; a supplemental claim, on or before one year after 
the date on which the agency of original jurisdiction issued a 
decision; a Notice of Disagreement, on or before one year after the 
date on which the agency of original jurisdiction issued a decision; a 
supplemental claim, on or before one year after the date on which the 
Board of Veterans' Appeals issued a decision; or a supplemental claim, 
on or before one year after the date on which the Court of Appeals for 
Veterans Claims issued a decision.
    (ii) Agents and attorneys may charge fees for representation 
provided with respect to a request for revision of a decision of an 
agency of original jurisdiction under 38 U.S.C. 5109A or the Board of 
Veterans' Appeals under 38 U.S.C. 7111 based on clear and unmistakable 
error if notice of the decision on a claim or claims was issued on or 
after the effective date of the modernized review system as provided in 
Sec.  19.2(a), and the agent or attorney has complied with the power of 
attorney requirements in Sec.  14.631 and the fee agreement 
requirements in paragraph (g) of this section.
    (2)(i) Agents and attorneys may charge claimants or appellants for 
representation provided: After an agency of original jurisdiction has 
issued a decision on a claim or claims, including any claim to reopen 
under 38 CFR 3.156(a) or for an increase in rate of a benefit; the 
agency of original jurisdiction issued notice of that decision before 
the effective date of the modernized review system as provided in Sec.  
19.2(a) of this chapter; a Notice of Disagreement has been filed with 
respect to that decision on or after June 20, 2007; and the agent or 
attorney has complied with the power of attorney requirements in Sec.  
14.631 and the fee agreement requirements in paragraph (g) of this 
section.
    (ii) Agents and attorneys may charge fees for representation 
provided with respect to a request for revision of a decision of an 
agency of original jurisdiction under 38 U.S.C. 5109A or the Board of 
Veterans' Appeals under 38 U.S.C. 7111 based on clear and unmistakable 
error if the agency of original jurisdiction issued notice of its 
decision on such request before the effective date of the modernized 
review system as provided in Sec.  19.2(a); a Notice of Disagreement 
was filed with respect to the challenged decision on or after June 20, 
2007; and the agent or attorney has complied with the power of attorney 
requirements in Sec.  14.631 and the fee agreement requirements in 
paragraph (g) of this section.
    (3) In cases in which a Notice of Disagreement was filed on or 
before June 19, 2007, agents and attorneys may charge fees only for 
services provided after both of the following conditions have been met:
    (i) A final decision was promulgated by the Board with respect to 
the issue, or issues, involved in the appeal; and
    (ii) The agent or attorney was retained not later than 1 year 
following the date that the decision by the Board was promulgated. 
(This condition will be considered to have been met with respect to all 
successor agents or attorneys acting in the continuous prosecution of 
the same matter if a predecessor was retained within the required time 
period.)
    (4) Except as noted in paragraph (i) of this section and Sec.  
14.637(d), the agency of original jurisdiction that issued the decision 
referenced in paragraphs (c)(1) or (2) of this section shall determine 
whether an agent or attorney is eligible for fees under this section. 
The agency of original jurisdiction's eligibility determination is a 
final adjudicative action that may only be appealed to the Board.
* * * * *
    (i) * * *
    (3) The Office of the General Counsel shall close the record before 
the Office of the General Counsel in proceedings to review fee 
agreements 15 days after the date on which the agent or attorney served 
a response on the claimant or appellant, or 30 days after the claimant, 
appellant, or the Office of the General Counsel served the motion on 
the agent or attorney if there is no response. The Deputy Chief Counsel 
with subject-matter jurisdiction may, for a reasonable

[[Page 39851]]

period upon a showing of sufficient cause, extend the time for an agent 
or attorney to serve an answer or for a claimant or appellant to serve 
a reply. The Deputy Chief Counsel shall forward the record and a 
recommendation to the General Counsel or his or her designee for a 
final decision. Unless either party files a Notice of Disagreement, the 
attorney or agent must refund any excess payment to the claimant or 
appellant not later than the expiration of the time within which the 
Office of the General Counsel's decision may be appealed to the Board 
of Veterans' Appeals.
* * * * *
    (k)(1) Decisions issued before the effective date of the modernized 
review system. Notwithstanding provisions in this section for closing 
the record before the Office of the General Counsel at the end of the 
30-day period for serving a response or 15 days after the date on which 
the agent or attorney served a response, appeals of decisions issued 
before the effective date of the modernized review system as provided 
in Sec.  19.2(a), shall be initiated and processed using the procedures 
in 38 CFR parts 19 and 20 applicable to legacy appeals. Nothing in this 
section shall be construed to limit the Board's authority to remand a 
matter to the General Counsel under 38 CFR 20.904 for any action that 
is essential for a proper appellate decision or the General Counsel's 
ability to issue a Supplemental Statement of the Case under 38 CFR 
19.31.
    (2) Decisions issued on or after the effective date of the 
modernized review system. Notwithstanding provisions in this section 
for closing the record before the Office of the General Counsel at the 
end of the 30-day period for serving a response or 15 days after the 
date on which the agent or attorney served a response, appeals of 
decisions issued on or after the effective date of the modernized 
review system as provided in Sec.  19.2(a), shall be initiated and 
processed using the procedures in 38 CFR part 20 applicable to appeals 
under the modernized system.
* * * * *
0
34. Amend Sec.  14.637 by:
0
a. Revising paragraph (d)(3).
0
b. Revising paragraph (f).
    The revisions read as follows:


Sec.  14.637   Payment of the expenses of agents and attorneys in 
proceedings before Agencies of Original Jurisdiction and before the 
Board of Veterans' Appeals.

* * * * *
* * * * *
    (d) * * *
    (3) The Office of the General Counsel shall close the record before 
the Office of the General Counsel in proceedings to review expenses 15 
days after the date on which the agent or attorney served a response on 
the claimant or appellant, or 30 days after the claimant, appellant, or 
the Office of the General Counsel served the motion on the agent or 
attorney if there is no response. The Deputy Chief Counsel with 
subject-matter jurisdiction may, for a reasonable period upon a showing 
of sufficient cause, extend the time for an agent or attorney to serve 
an answer or for a claimant or appellant to serve a reply. The Deputy 
Chief Counsel shall forward the record and a recommendation to the 
General Counsel or his or her designee for a final decision. Unless 
either party files a Notice of Disagreement, the attorney or agent must 
refund any excess payment to the claimant or appellant not later than 
the expiration of the time within which the Office of the General 
Counsel's decision may be appealed to the Board of Veterans' Appeals.
* * * * *
    (f)(1) Decisions issued before the effective date of the modernized 
review system. Notwithstanding provisions in this section for closing 
the record before the Office of the General Counsel at the end of the 
30-day period for serving a response or 15 days after the date on which 
the agent or attorney served a response, appeals of decisions issued 
before the effective date of the modernized review system as provided 
in Sec.  19.2(a), shall be initiated and processed using the procedures 
in 38 CFR parts 19 and 20 applicable to legacy appeals. Nothing in this 
section shall be construed to limit the Board's authority to remand a 
matter to the General Counsel under 38 CFR 20.904 for any action that 
is essential for a proper appellate decision or the General Counsel's 
ability to issue a Supplemental Statement of the Case under 38 CFR 
19.31.
    (2) Decisions issued on or after the effective date of the 
modernized review system. Notwithstanding provisions in this section 
for closing the record before the Office of the General Counsel at the 
end of the 30-day period for serving a response or 15 days after the 
date on which the agent or attorney served a response, appeals of 
decisions issued on or after the effective date of the modernized 
review system as provided in Sec.  19.2(a), shall be initiated and 
processed using the procedures in 38 CFR part 20 applicable to appeals 
under the modernized system.

PART 19--BOARD OF VETERANS' APPEALS: LEGACY APPEALS REGULATIONS

0
35. The authority citation for part 19, subpart A continues to read as 
follows:

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

0
36. The heading for part 19 is revised as set forth above.

Subpart A--Applicability

0
37. The heading for subpart A is revised as set forth above.


Sec.  19.1  [Redesignated as Sec.  20.100 and Amended]

0
38. Redesignate Sec.  19.1 as Sec.  20.100 and revise the heading to 
read ``Rule 100. Establishment of the Board.'' in the newly 
redesignated Sec.  20.100.


Sec.  19.2  [Redesignated as Sec.  20.101 and Amended]

0
39. Redesignate Sec.  19.2 as Sec.  20.101; revise the heading to read 
``Rule 101. Composition of the Board; Titles.''; in paragraph (b), 
remove the word ``member'' and add in its place the word ``Member'' in 
the newly redesignated Sec.  20.101.


Sec.  19.3  [Redesignated as Sec.  20.106 and Amended]

0
40. Redesignate Sec.  19.3 as Sec.  20.106 and revise the heading to 
read ``Rule 106. Assignment of proceedings.'' in the newly redesignated 
Sec.  20.106.


Sec.  19.4  [Redesignated as Sec.  20.103 and Amended]

0
41. Redesignate Sec.  19.4 as Sec.  20.103 and revise the heading to 
read ``Rule 103. Principal functions of the Board.'' in the newly 
redesignated Sec.  20.103.


Sec.  19.5  [Redesignated as Sec.  20.105 and Amended]

0
42. Redesignate Sec.  19.5 as Sec.  20.105; revise the heading to read 
``Rule 105. Criteria governing disposition of appeals.''; in the first 
sentence, add the text ``and in its decisions'' before the first comma 
in the newly redesignated Sec.  20.105.


Sec.  19.7  [Redesignated as Sec.  20.903 and Amended]

0
43. Redesignate Sec.  19.7 as Sec.  20.903, and amend by:
0
a. Revising the heading to read ``Rule 903. The decision.''.
0
b. In the second sentence of paragraph (b), removing the words 
``separately stated''.
0
c. Removing the authority citation at the end of paragraph (b);
0
d. Adding an authority citation at the end of the section to read as 
follows:


[[Page 39852]]


(Authority: 38 U.S.C. 7104(d) (2016) in the newly redesignated Sec.  
20.903)


Sec.  19.8  [Redesignated as Sec.  20.905 and Amended]

0
44. Redesignate Sec.  19.8 as Sec.  20.905 and revise the heading to 
read ``Rule 905. Content of Board decision, remand, or order in 
simultaneously contested claims.'' in the newly redesignated Sec.  
20.905.


Sec.  19.9  [Redesignated as Sec.  20.904 and Amended]

0
45. Redesignate Sec.  19.9 as Sec.  20.904 and amend by:
0
a. Revising the heading to read ``Rule 904. Remand or referral for 
further action.'';
0
b. In paragraph (c), removing the text ``subpart B of this part'' and 
adding in its place the text ``part 19, subpart B of this chapter'';
0
c. In paragraph (c), removing the text ``Sec.  20.204'' and adding in 
its place the text ``Sec.  19.55'';
0
d. In paragraph (d)(3), removing the text ``Sec.  20.1304(c) of this 
chapter'' and adding in its place the text ``Rule 1305 (Sec.  
20.1305(c) of this part)''; and
0
e. In paragraph (d)(4), removing the text ``Sec.  20.901 of this 
chapter'' and adding in its place the text ``Rule 906 (Sec.  20.906 of 
this part)''; and
0
f. Revising the authority citation to read as follows:


Sec.  20.904  Remand or referral for further action.

* * * * *

(Authority: 38 U.S.C. 7102, 7103(c); 38 U.S.C. 7104(a), 7105 (2016) 
in the newly redesignated Sec.  20.904)

Sec.  19.11  [Redesignated as Sec.  20.1004 and Amended]

0
46. Redesignate Sec.  19.11 as Sec.  20.1004 and amend by:
0
a. Revising the heading to read ``Rule 1004. Reconsideration panel.''.
0
b. Removing the word ``heard'' in paragraph (b) and adding in its place 
the word ``decided'' both places it appears in the newly redesignated 
Sec.  20.1004.


Sec.  19.12  [Redesignated as Sec.  20.107 and Amended]

0
47. Redesignate Sec.  19.12 as Sec.  20.107 and amend by:
0
a. Revising the heading to read ``Rule 107. Disqualification of 
Members.''.
0
b. Removing paragraph (b) and the authority citation following 
paragraph (b);
0
c. Redesignating paragraph (c) as paragraph (b); and
0
d. In new paragraph (b), removing the text ``paragraphs (a) and (b)'' 
and adding in its place the text ``paragraph (a)'' in the newly 
redesignated Sec.  20.107.


Sec.  19.13  [Redesignated as Sec.  20.108 and Amended]

0
48. Redesignate Sec.  19.13 as Sec.  20.108 and revise to heading to 
read ``Rule 108. Delegation of authority to Chairman and Vice Chairman, 
Board of Veterans' Appeals.'' in the newly redesignated Sec.  20.108.


Sec.  19.14  [Redesignated as Sec.  20.109 and Amended]

0
48a. Redesignate Sec.  19.14 as Sec.  20.109 and revise the newly 
redesignated Sec.  20.109 to read as follows:


Sec.  20.109  Rule 109. Delegation of authority to Vice Chairman, 
Deputy Vice Chairmen, or Members of the Board.

    (a) The authority exercised by the Chairman of the Board of 
Veterans' Appeals described in Rules 106(b) and 107(b) (Sec. Sec.  
20.106(b) and 20.107(b)) may also be exercised by the Vice Chairman of 
the Board.
    (b) The authority exercised by the Chairman of the Board of 
Veterans' Appeals described in Rules 1004 and 1002(c) (Sec. Sec.  
20.1004 and 20.1002(c)) may also be exercised by the Vice Chairman of 
the Board and by Deputy Vice Chairmen of the Board.
    (c) The authority exercised by the Chairman of the Board of 
Veterans' Appeals described in Rule 2 (Sec.  20.2), may also be 
exercised by the Vice Chairman of the Board; by Deputy Vice Chairmen of 
the Board; and, in connection with a proceeding or motion assigned to 
them by the Chairman, by a Member or Members of the Board.

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


0
49. Add Sec.  19.1 to subpart A to read as follows:


Sec.  19.1  Provisions applicable to legacy appeals.

    Part 19 and subparts F, G, and J of part 20 apply only to the 
processing and adjudication of legacy appeals, as defined in Sec.  
19.2. Except as otherwise provided in specific sections, subparts A, B, 
H, K, L, M, N, and O of part 20 apply to the processing and 
adjudication of both appeals and legacy appeals. For applicability 
provisions concerning appeals in the modernized review system, see 
Sec.  20.4 of this chapter.
0
50. Add Sec.  19.2 to subpart A to read as follows:


Sec.  19.2  Appellant's election for review of a legacy appeal in the 
modernized system.

    (a) Effective date. As used in this section, the effective date 
means February 14, 2019, or the date that is published in the Federal 
Register pursuant to Public Law 115-55, section 2, paragraph (x)(6), 
whichever is later.
    (b) Modernized review system. The modernized review system refers 
to the current statutory framework for claims and appeals processing, 
set forth in Public Law 115-55, and any amendments thereto, applicable 
on the effective date. The modernized review system applies to all 
claims, requests for reopening of finally adjudicated claims, and 
requests for revision based on clear and unmistakable error for which 
VA issues notice of an initial decision on or after the effective date, 
or as otherwise provided in paragraph (d) of this section.
    (c) Legacy appeals. A legacy appeal is an appeal of a legacy claim, 
as defined in 38 CFR 3.2400(b), where a claimant has not elected to 
participate in the modernized review system as provided in paragraph 
(d) of this section. A legacy appeal is initiated by the filing of a 
Notice of Disagreement and is perfected to the Board with the filing of 
a Substantive Appeal pursuant to applicable regulations in accordance 
with 38 CFR parts 19 and 20.
    (d) Election into the modernized review system. The modernized 
review system applies to legacy claims and appeals where:
    (1) A claimant with a legacy claim or appeal elects the modernized 
review system pursuant to 38 CFR 3.2400(c)(1);
    (2) A claimant with a legacy claim or appeal elects the modernized 
review system, following issuance, on or after the effective date, of a 
VA Statement of the Case or Supplemental Statement of the Case. The 
election is made by filing an appeal in accordance with 38 CFR 20.202, 
or a review option in accordance with 38 U.S.C. 5108 or 5104B, as 
implemented by 38 CFR 3.2500 and other applicable regulations. The 
election must be filed within the time allowed for filing a substantive 
appeal under Sec.  19.52(b); or
    (3) VA issued notice of a decision prior to the effective date, 
and, pursuant to the Secretary's authorization to participate in a test 
program, the claimant elects the modernized review system by filing an 
appeal in accordance with 38 U.S.C. 7105, or a review option in 
accordance with 38 U.S.C. 5108 or 5104B.

(Authority: Pub. L. 115-55; 131 Stat. 1105; 38 U.S.C. 5104B, 
5104C(a); 5108; 38 U.S.C. 7105)

Sec.  Sec.  19.3-19.19   [Reserved]

0
51. Reserve Sec. Sec.  19.3 through 19.19 to subpart A.

Subpart B--Legacy Appeals and Legacy Appeals Processing by Agency 
of Original Jurisdiction

0
52. Revise the subpart B heading as set forth above.

[[Page 39853]]

Sec.  19.23  [Amended]

0
53. Amend Sec.  19.23 by:
0
a. In paragraph (a), by removing the words ``Sec.  20.201(a) of this 
chapter'' and adding in their place the text ``Sec.  19.21(a)'' both 
places they appear.
0
b. In paragraph (a), by removing the text ``, Sec.  19.27''.
0
c. In paragraph (b), by removing the text ``, Sec.  19.27''.
0
d. In paragraph (b), by removing the words ``Sec.  20.201(b) of this 
chapter'' and adding in their place the text ``Sec.  19.21(b)''.


Sec.  19.24  [Amended]

0
54. Amend Sec.  19.24 by:
0
a. In paragraph (a), by removing the text ``Sec.  20.201(a) of this 
chapter'' and adding in its place the text ``Sec.  19.21(a)'';
0
b. In paragraph (b)(1), by removing the text ``paragraph (a) of Sec.  
20.201 of this chapter'' and adding in its place the text ``Sec.  
19.21(a)''; and
0
c. In paragraph (b)(3), by removing the text ``Sec.  20.302(a) of this 
chapter'' and adding in its place the text ``Sec.  19.52(a)''.
0
55. Amend Sec.  19.25 by revising the authority citation to read as 
follows:


Sec.  19.25  Notification by agency of original jurisdiction of right 
to appeal.

* * * * *

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


0
56. Amend Sec.  19.26 by revising the authority citation to read as 
follows:


Sec.  19.26  Action by agency of original jurisdiction on Notice of 
Disagreement.

* * * * *

(Authority: 38 U.S.C. 501; 38 U.S.C. 7105, 7105A (2016))

Sec.  19.27  [Removed and Reserved]

0
57. Remove and reserve Sec.  19.27.
0
58. Amend Sec.  19.28 by revising the authority citation to read as 
follows:


Sec.  19.28  Determination that a Notice of Disagreement is inadequate 
protested by claimant or representative.

* * * * *

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


0
59. Amend Sec.  19.29 by revising the authority citation to read as 
follows:


Sec.  19.29  Statement of the Case.

* * * * *

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


0
60. Amend Sec.  19.30 by revising paragraph (b) and the authority 
citation to read as follows:


Sec.  19.30  Furnishing the Statement of the Case and instructions for 
filing a Substantive Appeal.

* * * * *
    (b) Information furnished with the Statement of the Case. With the 
Statement of the Case, the appellant and the representative will be 
furnished information on the right to file, and time limit for filing, 
a substantive appeal; information on hearing and representation rights; 
and a VA Form 9, ``Appeal to Board of Veterans' Appeals'', and a 
statement describing the available review options if the appellant 
elects review of the issue or issues on appeal in the modernized review 
system.

(Authority: Sec. 2, Pub. L. 115-55; 131 Stat. 1105; 38 U.S.C. 7105 
(2016))


0
61. Amend Sec.  19.31 by:
0
a. Adding after the first sentence the text ``The information furnished 
with the Supplemental Statement of the Case shall include a statement 
describing the available review options if the appellant elects review 
of the issue or issues on appeal in the modernized system.''.
0
b. Revising the authority citation to read as follows:

(Authority: 38 U.S.C. 5902, 5903, 5904; 38 U.S.C. 7105(d) (2016))

0
62. Amend Sec.  19.32 by revising the authority citation to read as 
follows:


Sec.  19.32  Closing of appeal for failure to respond to Statement of 
the Case.

* * * * *

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

Sec.  19.33  [Removed and Reserved]

0
63. Remove and reserve Sec.  19.33.
0
64. Amend Sec.  19.34 by revising the authority citation to read as 
follows:


Sec.  19.34  Determination that Notice of Disagreement or Substantive 
Appeal was not timely filed protested by claimant or representative.

* * * * *

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

Sec.  19.35  [Amended]

0
65. Amend Sec.  19.35 by:
0
a. Removing the second sentence;
0
b. Revising the authority citation to read as follows:


Sec.  19.35  Certification of appeals.

* * * * *

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

Sec.  19.36  [Amended]

0
66. Amend Sec.  19.36 by:
0
a. Removing the text ``Rule of Practice 1304 (Sec.  20.1304 of this 
chapter)'' from the first sentence and adding in its place the text 
``Rule 1305 (Sec.  20.1305 of this chapter)''; and by removing the text 
``Sec.  20.1304'' from the second sentence and adding in its place the 
text ``Sec.  20.1305'';
0
b. Revising the authority citation to read as follows:


Sec.  19.36  Notification of certification of appeal and transfer of 
appellate record.

* * * * *

(Authority: 38 U.S.C. 5902, 5903; 38 U.S.C. 5904, 7105 (2016))


0
67. Amend Sec.  19.37 by revising the authority citation to read as 
follows:


Sec.  19.37  Consideration of additional evidence received by the 
agency of original jurisdiction after an appeal has been initiated.

* * * * *

(Authority: 38 U.S.C. 5902, 5903, 5904; 38 U.S.C. 7105(d)(1) (2016))


0
68. Amend Sec.  19.38 by:
0
a. Removing the text ``Rule of Practice 302, paragraph (c) (Sec.  
20.302(c) of this chapter)'' and adding in its place the text ``Sec.  
19.52(c)''
0
b. Revising the authority citation to read as follows:


Sec.  19.38  Action by agency of original jurisdiction when remand 
received.

* * * * *

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


Subpart C--Claimant Action in a Legacy Appeal

0
69. Revise the subpart C heading as set forth above.


Sec. Sec.  19.50-19.53  [Removed]

0
70. Remove Sec. Sec.  19.50 through 19.53.

Subpart D [Removed and Reserved]

0
71. Remove and reserve Subpart D, consisting of Sec. Sec.  19.75 
through 19.99.

Subpart E--Simultaneously Contested Claims

0
72. Amend Sec.  19.100 by revising the authority citation to read as 
follows:


Sec.  19.100  Notification of right to appeal in simultaneously 
contested claims.

* * * * *

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


0
73. Amend Sec.  19.101 by revising the authority citation to read as 
follows:


Sec.  19.101  Notice to contesting parties on receipt of Notice of 
Disagreement in simultaneously contested claims.

* * * * *

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


0
74. Amend Sec.  19.102 by revising the authority citation to read as 
follows:


Sec.  19.102  Notice of appeal to other contesting parties in 
simultaneously contested claims.

* * * * *

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


[[Page 39854]]




Sec. Sec.  19.103-19.199  [Added and Reserved]

0
75. Add and reserve Sec. Sec.  19.103 through 19.199.
0
76. Remove Appendix A to Part 19--Cross-References.

PART 20--BOARD OF VETERANS' APPEALS: RULES OF PRACTICE

0
77. The authority citation for part 20 continues to read as follows:

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

Subpart A--General


Sec.  20.1  [Amended]

0
78. Amend Sec.  20.1 by adding the text ``(Board)'' after the text 
``Board of Veterans' Appeals''.
0
79. Amend Sec.  20.3 by:
0
a. Revising paragraphs (b), (c) and (f);
0
b. Removing paragraph (h);
0
c. Redesignating paragraph (i) as paragraph (h) and revising the 
introductory text to read: ``Hearing on appeal or Board hearing'', and 
removing the text ``argument and/or'';
0
d. Removing paragraphs (j) and (k);
0
e. Redesignating paragraph (l) as paragraph (i) and revising the second 
sentence to read: ``For example, a request to correct a hearing 
transcript (see Rule 714 (Sec.  20.714)) is raised by motion.'';
0
f. Removing paragraph (m);
0
g. Redesignating paragraph (n) as paragraph (j) and removing the word 
``reopened'' and adding in its place the word ``readjudicated''.
0
h. Redesignating paragraph (o) as paragraph (k);
0
i. Redesignating paragraph (p) as paragraph (l);
0
j. Redesignating paragraph (q) as paragraph (m);
    The revisions read as follows:


Sec.  20.3  Rule 3. Definitions.

* * * * *
    (b) Agent means a person who has met the standards and 
qualifications for accreditation outlined in Sec.  14.629(b) of this 
chapter and who has been properly designated under the provisions of 
Sec.  14.631 of this chapter. It does not include representatives 
accredited under Sec.  14.629(a) of this chapter, attorneys accredited 
under Sec.  14.629(b) of this chapter, or a person authorized to 
represent a claimant for a particular claim under Sec.  14.630 of this 
chapter.
    (c) Appellant means a claimant who has filed an appeal to the Board 
of Veterans' Appeals either as a legacy appeal or in the modernized 
review system, as those terms are defined in Sec.  19.2 of this 
chapter, and Rule 4 (Sec.  20.4 of this part), respectively.
* * * * *
    (f) Claim means a written communication requesting a determination 
of entitlement or evidencing a belief in entitlement, to a specific 
benefit under the laws administered by the Department of Veterans 
Affairs submitted on an application form prescribed by the Secretary.
* * * * *
0
80. Add new Sec.  20.4 to read as follows:


Sec.  20.4  Rule 4. Appeal systems definitions and applicability 
provisions.

    (a) Appeal. (1) In general. An appeal consists of a Notice of 
Disagreement timely filed to the Board on any issue or issues for which 
VA provided notice of a decision under 38 U.S.C. 5104 on or after the 
effective date, as defined in Sec.  19.2(a) of this chapter.
    (2) Appellant's election for review of a legacy claim or appeal in 
the modernized review system. The regulations applicable to appeals are 
also applicable to legacy claims and appeals, as those terms are 
defined in Sec. Sec.  3.2400(b) and 19.2(c) of this chapter, where the 
claimant elects the modernized review system pursuant to Sec.  19.2(d) 
of this chapter, and upon the timely filing to the Board of a Notice of 
Disagreement.
    (b) Applicability of parts 19 and 20. (1) Appeals. Subparts C, D, 
E, and I of part 20 apply only to the processing and adjudication of 
appeals in the modernized review system.
    (2) Legacy claims and appeals. Part 19 and subparts F, G, and J of 
part 20 apply only to the processing and adjudication of legacy claims 
and appeals.
    (3) Both appeals systems. Except as otherwise provided in specific 
sections, subparts A, B, H, K, L, M, N, and O of part 20 apply to the 
processing and adjudication of both appeals and legacy claims and 
appeals.

(Authority: Sec. 2, Pub. L. 115-55; 131 Stat. 1105)

Subpart B--The Board


Sec.  20.102  [Removed]

0
81. Remove Sec.  20.102.
0
82. Redesignate Sec.  20.100 as Sec.  20.102, and revise paragraph (c) 
in the newly redesignated Sec.  20.102 to read as follows:


Sec.  20.102  Rule 102. Name, business hours, and mailing address of 
the Board.

* * * * *
    (c) Mailing address. The mailing address of the Board is: Board of 
Veterans' Appeals, P.O. Box 27063, Washington, DC 20038. Mail to the 
Board that is not related to an appeal must be addressed to: Board of 
Veterans' Appeals, 810 Vermont Avenue NW, Washington, DC 20420.
0
83. Redesignate Sec.  20.101 as Sec.  20.104, and amend by:
0
a. Removing the third sentence of paragraph (a);
0
b. Redesignating paragraph (c) as paragraph (d)(1), revising the 
paragraph heading and the first sentence, and add an authority citation 
in the newly designated paragraph (d)(1);
0
c. Redesignating paragraph (d) as paragraph (c) and revising the first 
sentence of the newly redesignated paragraph (c);
0
d. Redesignating paragraph (e) as paragraph (d)(2) and revising the 
newly redesignated paragraph (d)(2).
    The revisions read as follows:


Sec.  20.104  Rule 104. Jurisdiction of the Board.

* * * * *
    (c) * * *
    The Board shall decide all questions pertaining to its 
jurisdictional authority to review a particular case.
* * * * *
    (d)(1) Appeals as to jurisdiction in legacy claims and appeals. All 
claimants in legacy appeals, as defined in Sec.  19.2 of this chapter, 
have the right to appeal a determination made by the agency of original 
jurisdiction that the Board does not have jurisdictional authority to 
review a particular case.
* * * * *

(Authority: Sec. 2, Pub. L. 115-55; 131 Stat. 1105)


    (2) Application of 20.904 and 20.1305. Section 20.904 of this part 
shall not apply to proceedings to determine the Board's own 
jurisdiction. However, the Board may remand a case to an agency of 
original jurisdiction in order to obtain assistance in securing 
evidence of jurisdictional facts. The time restrictions on requesting a 
hearing and submitting additional evidence in Sec.  20.1305 of this 
part do not apply to a hearing requested, or evidence submitted, under 
paragraph (c) of this section.

(Authority: 38 U.S.C. 511(a), 7104, 7105, 7108)

Subpart C--Commencement and Filing of Appeals

0
84. Revise the subpart heading as set forth above.
0
85. Redesignate Sec.  20.200 as Sec.  19.20 and amend by:
0
a. Revising the section heading.
0
b. In the introductory text removing the text ``Sec.  20.201'' and 
adding in its place the text ``Sec.  19.21'', removing the text ``Sec.  
20.302(a)'' and adding in its place the text ``Sec.  19. 52(a)'' and 
adding the text ``of this chapter'' after the text ``of Sec.  
20.501(a)''.

[[Page 39855]]

0
c. Revising the authority citation;
    The revisions read as follows:


Sec.  19.20  What constitutes an appeal.

* * * * *

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


0
86. Redesignate Sec.  20.201 as Sec.  19.21 and amend by:
0
a. Revising the section heading;
0
b. In paragraph (a)(5), removing the text ``Sec.  20.302(a)'' and 
adding in its place the text ``Sec.  19.52(a)'';
0
c. In paragraph (c), removing the text ``Sec. Sec.  20.500 and 20.501'' 
and adding in its place the text ``Rules 500 and 501 (Sec. Sec.  20.500 
and 20.501 of this chapter)'';
0
d. Revising the authority citation;
    The revisions to read as follows:


Sec.  19.21  Notice of Disagreement.

* * * * *

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


0
87. Redesignate Sec.  20.202 as Sec.  19.22 and amend by revising the 
section heading and authority citation to read as follows:


Sec.  19.22  Substantive Appeal.

* * * * *

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


0
88. Redesignate Sec.  20.204 as Sec.  19.55 and amend by:
0
a. Revising the section heading;
0
b. In paragraph (b)(1), revising the introductory text to read 
``Content'', removing the first sentence, removing the word ``They'' 
from the second sentence and adding in its place the words ``Appeal 
withdrawals'';
0
c. In paragraph (b)(2), revising the last sentence;
0
d. In paragraph (b)(3) removing the word ``part'' and adding in its 
place the word ``chapter''; and
0
e. Revising the authority citation to read as follows:
0
f. Removing ``[68 FR 13236, Mar. 19, 2003, as amended at 81 FR 32649, 
May 24, 2016]'' from the end of the paragraph.
    The revisions read as follows:


Sec.  19.55  Withdrawal of Appeal.

* * * * *
    (b) * * *
    (1) Content.
* * * * *
    (2) * * *
* * * * *
    Thereafter, file the withdrawal at the Board.
* * * * *

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


0
89. Revise subpart C to read as follows:


Sec.  20.200  Rule 200. Notification by agency of original jurisdiction 
of right to appeal.

    The claimant and his or her representative, if any, will be 
informed of appellate rights provided by 38 U.S.C. chapters 71 and 72, 
including the right to a personal hearing and the right to 
representation. The agency of original jurisdiction will provide this 
information in each notification of a determination of entitlement or 
nonentitlement to Department of Veterans Affairs benefits, pursuant to 
38 U.S.C. 5104, 5104B, and 5108.

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

Sec.  20.201  Rule 201. What constitutes an appeal.

    An appeal of a decision by the agency of original jurisdiction 
consists of a Notice of Disagreement submitted to the Board in 
accordance with the provisions of Sec. Sec.  20.202-20.204.

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

Sec.  20.202  Rule 202. Notice of Disagreement.

    (a) In General. A Notice of Disagreement must be properly completed 
on a form prescribed by the Secretary. If the agency of original 
jurisdiction decision addressed several issues, the Notice of 
Disagreement must identify the specific determination or determinations 
with which the claimant disagrees. The Board will construe such 
arguments in a liberal manner for purposes of determining whether they 
raise issues on appeal, but the Board may dismiss any appeal which 
fails to identify the specific determination with which the claimant 
disagrees.
    (b) Upon filing the Notice of Disagreement, a claimant must 
indicate whether the claimant requests:
    (1) Direct review by the Board of the record before the agency of 
original jurisdiction at the time of its decision, without submission 
of additional evidence or a Board hearing;
    (2) A Board hearing, to include an opportunity to submit additional 
evidence at the hearing and within 90 days following the hearing; or
    (3) An opportunity to submit additional evidence without a Board 
hearing with the Notice of Disagreement and within 90 days following 
receipt of the Notice of Disagreement.
    (c)(1) The information indicated by the claimant in paragraph (b) 
of this section determines the evidentiary record before the Board as 
described in subpart D of this part, and the docket on which the appeal 
will be placed, as described in Rule 800 (Sec.  20.800). Except as 
otherwise provided in paragraph (2) of this section, the Board will not 
consider evidence as described in Rules 302 or 303 (Sec. Sec.  20.302 
and 20.303) unless the claimant requests a Board hearing or an 
opportunity to submit additional evidence on the Notice of 
Disagreement.
    (2) A claimant may modify the information identified in the Notice 
of Disagreement for the purpose of selecting a different evidentiary 
record option as described in paragraph (b) of this section. Requests 
to modify a Notice of Disagreement must be in writing, must clearly 
identify the option listed in paragraph (b) of this section that the 
appellant requests, and must be received at the Board within one year 
from the date that the agency of original jurisdiction mails notice of 
the decision on appeal, or within 30 days of the date that the Board 
receives the Notice of Disagreement, whichever is later. Requests to 
modify a Notice of Disagreement will not be granted if the appellant 
has submitted evidence or testimony as described in Sec. Sec.  20.302 
and 20.303.
    (d) The Board will not accept as a Notice of Disagreement an 
expression of dissatisfaction or disagreement with an adjudicative 
determination by the agency of original jurisdiction and a desire to 
contest the result that is submitted in any format other than the form 
prescribed by the Secretary, including on a different VA form.
    (e) Alternate form or other communication. The filing of an 
alternate form or other communication will not extend, toll, or 
otherwise delay the time limit for filing a Notice of Disagreement, as 
provided in Sec.  20.203(b). In particular, returning the incorrect VA 
form does not extend, toll, or otherwise delay the time limit for 
filing the correct form.
    (f) Unclear Notice of Disagreement. If within one year after 
mailing an adverse decision (or 60 days for simultaneously contested 
claims), the Board receives a Notice of Disagreement completed on the 
form prescribed by the Secretary, but the Board cannot identify which 
denied issue or issues the claimant wants to appeal or which option the 
claimant intends to select under paragraph (b) of this section, then 
the Board will contact the claimant to request clarification of the 
claimant's intent.
    (g) Response required from claimant--(1) Time to respond. The 
claimant must respond to the Board's request for clarification on or 
before the later of the following dates:
    (i) 60 days after the date of the Board's clarification request; or
    (ii) One year after the date of mailing of notice of the adverse 
decision being appealed (60 days for simultaneously contested claims).

[[Page 39856]]

    (2) Failure to respond. If the claimant fails to provide a timely 
response, the previous communication from the claimant will not be 
considered a Notice of Disagreement as to any claim for which 
clarification was requested. The Board will not consider the claimant 
to have appealed the decision(s) on any claim(s) as to which 
clarification was requested and not received.
    (h) Action following clarification. The unclear Notice of 
Disagreement is properly completed, and thereby filed, under paragraph 
(a) of this section when the Board receives the clarification.
    (i) Representatives and fiduciaries. For the purpose of the 
requirements in paragraphs
    (f) through (h) of this section, references to the ``claimant'' 
include reference to the claimant or his or her representative, if any, 
or to his or her fiduciary, if any, as appropriate.

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


[Approved by the Office of Management and Budget under control 
number 2900-0085]


Sec.  20.203  Rule 203. Place and time of filing Notice of 
Disagreement.

    (a) Place of filing. The Notice of Disagreement must be filed with 
the Board of Veterans' Appeals, P.O. Box 27063, Washington, DC 20038.
    (b) Time of filing. Except as provided in Sec.  20.402 for 
simultaneously contested claims, a claimant, or his or her 
representative, must file a properly completed Notice of Disagreement 
with a determination by the agency of original jurisdiction within one 
year from the date that the agency mails the notice of the 
determination. The date of mailing the letter of notification of the 
determination will be presumed to be the same as the date of that 
letter for purposes of determining whether an appeal has been timely 
filed.

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

Sec.  20.204  Rule 204. Who can file a Notice of Disagreement.

    (a) Persons authorized. A Notice of Disagreement may be filed by a 
claimant personally, or by his or her representative if a proper Power 
of Attorney is on record or accompanies such Notice of Disagreement.
    (b) Claimant rated incompetent by Department of Veterans Affairs or 
under disability and unable to file. If an appeal is not filed by a 
person listed in paragraph (a) of this section, and the claimant is 
rated incompetent by the Department of Veterans Affairs or has a 
physical, mental, or legal disability which prevents the filing of an 
appeal on his or her own behalf, a Notice of Disagreement may be filed 
by a fiduciary appointed to manage the claimant's affairs by the 
Department of Veterans Affairs or a court, or by a person acting as 
next friend if the appointed fiduciary fails to take needed action or 
no fiduciary has been appointed.
    (c) Claimant under disability and able to file. Notwithstanding the 
fact that a fiduciary may have been appointed for a claimant, an appeal 
filed by a claimant will be accepted.

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

Sec.  20.205  Rule 205. Withdrawal of Appeal.

    (a) When and by whom filed. Only an appellant, or an appellant's 
authorized representative, may withdraw an appeal. An appeal may be 
withdrawn as to any or all issues involved in the appeal.
    (b) Filing--(1) Content. Appeal withdrawals must include the name 
of the veteran, the name of the claimant or appellant if other than the 
veteran (e.g., a veteran's survivor, a guardian, or a fiduciary 
appointed to receive VA benefits on an individual's behalf), the 
applicable Department of Veterans Affairs file number, and a statement 
that the appeal is withdrawn. If the appeal involves multiple issues, 
the withdrawal must specify that the appeal is withdrawn in its 
entirety, or list the issue(s) withdrawn from the appeal.
    (2) Where to file. Appeal withdrawals should be filed with the 
Board.
    (3) When effective. An appeal withdrawal is effective when received 
by the Board. A withdrawal received after the Board issues a final 
decision under Rule 1100(a) (Sec.  20.1100(a)) will not be effective.
    (c) Effect of filing. Withdrawal of an appeal will be deemed a 
withdrawal of the Notice of Disagreement as to all issues to which the 
withdrawal applies. Withdrawal does not preclude filing a new Notice of 
Disagreement pursuant to this subpart, a request for higher-level 
review under 38 U.S.C. 5104B, or a supplemental claim under 38 U.S.C. 
5108, as to any issue withdrawn, provided such filing would be timely 
under these rules if the withdrawn appeal had never been filed.

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

Sec. Sec.  20.206-20.299  [Reserved]

Subpart D--Evidentiary Record

0
90. Revise the subpart D heading to read as set forth above.
0
91. Redesignate Sec.  20.300 as Sec.  19.51, and amend by:
0
a. Revising the section heading.
0
b. Revising the authority citation of the newly redesignated Sec.  
19.51 to read as follows:


Sec.  19.51  Place of filing Notice of Disagreement and Substantive 
Appeal.

* * * * *

(Authority: 38 U.S.C. 7105(b)(1), (d)(3) (2016))


0
92. Redesignate Sec.  20.301 as Sec.  19.50, and amend by:
0
a. Revising the section heading.
0
b. Revising the authority citation of the newly redesignated Sec.  
19.50 to read as follows:


Sec.  19.50  Who can file an appeal.

* * * * *

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


0
93. Redesignate Sec.  20.302 as Sec.  19.52, and amend by:
0
a. Revising the section heading.
0
b. Revising the authority citations of paragraphs (a)-(c) in the newly 
redesignated Sec.  19.52 to read as follows:


Sec.  19.52  Time limit for filing Notice of Disagreement, Substantive 
Appeal, and response to Supplemental Statement of the Case.

    (a) * * *

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


    (b) * * *

(Authority: 38 U.S.C. 7105(b)(1), (d)(3) (2016))


    (c) * * *

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


0
94. Redesignate Sec.  20.303 as Sec.  19.53, and amend by:
0
a. Revising the section heading.
0
b. Revising the authority citation of the newly redesignated Sec.  
19.53 to read as follows:


Sec.  19.53  Extension of time for filing Substantive Appeal and 
response to Supplemental Statement of the Case.

* * * * *

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


0
95. Redesignate Sec.  20.304 as Sec.  19.54 and amend by:

0
a. Revising the section heading.
0
b. In the introductory text removing the text ``Rule 302(b) (Sec.  
20.302(b) of this part)'' and adding in its place the text ``Sec.  
19.52(b)''.
0
c. Revising the authority citation of the newly redesignated Sec.  
19.54 to read as follows:

Sec.  19.54  Filing additional evidence does not extend time limit for 
appeal.

* * * * *

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


0
96. Redesignate Sec.  20.305 as Sec.  20.110, and revise the section 
heading by removing the words ``Rule 305'' and adding in their place 
the words ``Rule 110'' in the newly redesignated Sec.  20.110.

[[Page 39857]]

0
97. Redesignate Sec.  20.306 as Sec.  20.111 and amend by:

0
a. In the section heading removing the words ``Rule 306'' and adding in 
their place the words ``Rule 111''.
0
b. In the introductory text removing the words ``Rule 305 (Sec.  
20.305)'' and adding in their place the words ``Rule 110 (Sec.  
20.110)'' in the newly redesignated Sec.  20.111.
0
98. Add Sec. Sec.  20.300-20.303 to read as follows:

Sec.  20.300  Rule 300. General.

    Decisions of the Board will be based on a de novo review of the 
evidence of record at the time of the agency of original jurisdiction 
decision on the issue or issues on appeal, and any additional evidence 
or testimony submitted pursuant to this subpart, as provided in Sec.  
20.801.

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

Sec.  20.301  Rule 301. Appeals with no request for a Board hearing and 
no additional evidence.

    For appeals in which the appellant requested, on the Notice of 
Disagreement, direct review by the Board without submission of 
additional evidence and without a Board hearing, the Board's decision 
will be based on a review of the evidence of record at the time of the 
agency of original jurisdiction decision on the issue or issues on 
appeal.

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

Sec.  20.302  Rule 302. Appeals with a request for a Board hearing.

    (a) Except as described in paragraphs (b) and (c) of this section, 
for appeals in which the appellant requested, on the Notice of 
Disagreement, a Board hearing, the Board's decision will be based on a 
review of the following:
    (1) Evidence of record at the time of the agency of original 
jurisdiction's decision on the issue or issues on appeal;
    (2) Evidence submitted by the appellant or his or her 
representative at the hearing, to include testimony provided at the 
hearing; and
    (3) Evidence submitted by the appellant or his or her 
representative within 90 days following the hearing.
    (b) In the event that the hearing request is withdrawn pursuant to 
Sec.  20.704(e), the Board's decision will be based on a review of 
evidence described in paragraph (a)(1) of this section, and evidence 
submitted by the appellant or his or her representative within 90 days 
following receipt of the withdrawal.
    (c) In the event that the appellant does not appear for a scheduled 
hearing, and the hearing is not rescheduled subject to Sec.  20.704(d), 
the Board's decision will be based on a review of evidence described in 
paragraph (a)(1) of this section, and evidence submitted by the 
appellant or his or her representative within 90 days following the 
date of the scheduled hearing.

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

Sec.  20.303  Rule 303. Appeals with no request for a Board hearing, 
but with a request for submission of additional evidence.

    For appeals in which the appellant requested, on the Notice of 
Disagreement, an opportunity to submit additional evidence without a 
Board hearing, the Board's decision will be based on a review of the 
following:
    (a) Evidence of record at the time of the agency of original 
jurisdiction's decision on the issue or issues on appeal; and
    (b) Evidence submitted by the appellant or his or her 
representative:
    (1) With the Notice of Disagreement or within 90 days following 
receipt of the Notice of Disagreement; or,
    (2) If the appellant did not request an opportunity to submit 
additional evidence on the Notice of Disagreement, but subsequently 
requested to submit additional evidence pursuant to Rule 202, (Sec.  
20.202 (c)(2)(ii)), within 90 days following VA's notice that the 
appeal has been moved to the docket described in Sec.  20.800(a)(ii).

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

Sec.  Sec.  20.304-20.306  [Added and Reserved]

0
 99. Add and reserve Sec. Sec.  20.304 through 20.306.

Subpart E--Appeal in Simultaneously Contested Claims

0
 100. Revise the subpart E heading to read as set forth above.


Sec.  Sec.  20.400 and 20.401   [Removed]

0
101. Remove Sec. Sec.  20.400 and 20.401.
0
102. Add Sec. Sec.  20.400 through 20.407 to read as follows:

Sec.  20.400  Rule 400. Notification of the right to appeal in a 
simultaneously contested claim.

    All interested parties will be specifically notified of the action 
taken by the agency of original jurisdiction in a simultaneously 
contested claim and of the right and time limit for submitting a Notice 
of Disagreement to the Board, as well as hearing and representation 
rights.


Sec.  20.401  Rule 401. Who can file an appeal in simultaneously 
contested claims.

    In simultaneously contested claims, any claimant or representative 
of a claimant may file a Notice of Disagreement within the time limits 
set out in Rule 402 (Sec.  20.402).

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

Sec.  20.402  Rule 402. Time limits for filing Notice of Disagreement 
in simultaneously contested claims.

    In simultaneously contested claims, the Notice of Disagreement from 
the person adversely affected must be filed within 60 days from the 
date of mailing of the notification of the determination to him or her; 
otherwise, that determination will become final. The date of mailing of 
the letter of notification will be presumed to be the same as the date 
of that letter for purposes of determining whether a Notice of 
Disagreement has been timely filed.

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

Sec.  20.403  Rule 403. Notice to contesting parties on receipt of 
Notice of Disagreement in simultaneously contested claims.

    Upon the filing of a Notice of Disagreement in a simultaneously 
contested claim, all interested parties and their representatives will 
be furnished a copy of the substance of the Notice of Disagreement. The 
notice will inform the contesting party or parties of what type of 
review the appellant who initially filed a Notice of Disagreement 
selected under Sec.  20.202(b), including whether a hearing was 
requested.

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

Sec.  20.404  Rule 404. Time limit for response to appeal by another 
contesting party in a simultaneously contested claim.

    A party to a simultaneously contested claim may file a brief, 
argument, or request for a different type of review under Sec.  
20.202(b) in answer to a Notice of Disagreement filed by another 
contesting party. Any such brief, argument, or request must be filed 
with the Board within 30 days from the date the content of the Notice 
of Disagreement is furnished as provided in Sec.  20.403. Such content 
will be presumed to have been furnished on the date of the letter that 
accompanies the content.

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

Sec.  20.405   Rule 405. Docketing of simultaneously contested claims 
at the Board.

    After expiration of the 30 day period for response in Sec.  20.404, 
the Board will place all parties of the simultaneously contested claim 
on the docket for the type of review requested under Sec.  20.202(b). 
In the event the parties request different types of review, if any 
party requests a hearing the appeal will be placed on the docket 
described in

[[Page 39858]]

Sec.  20.800(a)(iii), and VA will notify the parties that a hearing 
will be scheduled. If no party requested a hearing, but any party 
requested the opportunity to submit additional evidence, the appeal 
will be placed on the docket described in Sec.  20.800(a)(ii), and the 
parties will be notified of their opportunity to submit additional 
evidence within 90 days of the date of such notice.

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

Sec.  20.406  Rule 406. Notices sent to last addresses of record in 
simultaneously contested claims.

    Notices in simultaneously contested claims will be forwarded to the 
last address of record of the parties concerned and such action will 
constitute sufficient evidence of notice.


Sec.  20.407  Rule 407. Favorable Findings are not binding in Contested 
Claims.

    Where a claim is contested, findings favorable to either party, as 
described in Rule 801 (Sec.  20.801), are no longer binding on all VA 
and Board of Veterans' Appeals adjudicators during the pendency of the 
contested appeal.

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

Subpart F--Legacy Appeal in Simultaneously Contested Claims

0
103. Revise the subpart F heading to read as set forth above.
0
104. Redesignate Sec.  20.500 as Sec.  20.501 and amend by:

0
a. In the section heading removing the words ``Rule 500'' and adding in 
their place the words ``Rule 501''.
0
b. In the introductory text removing the words ``Rule 501 (Sec.  20.501 
of this part)'' and adding in their place the words ``Rule 502 (Sec.  
20.502)'';
0
c. Revising the authority citation of the newly redesignated Sec.  
20.501 to read as follows:

Sec.  20.501  Who can file an appeal in simultaneously contested 
claims.

* * * * *

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


0
105. Add new Sec.  20.500 to read as follows:

Sec.  20.500  Rule 500. Applicability.

    The provisions of this subpart apply to legacy appeals, as defined 
in Sec.  19.2 of this chapter.
0
106. Redesignate Sec.  20.501 as Sec.  20.502 and amend by:

0
a. In the section heading removing the words ``Rule 501'' and adding in 
their place the words ``Rule 502''.
0
b. In paragraphs (a) through (c), revise the authority citations of the 
newly redesignated Sec.  20.502 to read as follows:

    (a) * * *

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

    (b) * * *

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

    (c) * * *

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

0
107. Redesignate Sec.  20.502 as Sec.  20.503, and amend by:
0
a. In the section heading removing the words ``Rule 502'' and adding in 
their place the words ``Rule 503''.
0
b. Revising the authority citation of the newly redesignated Sec.  
20.503 to read as follows:


Sec.  20.503  Rule 503. Time limit for response to appeal by another 
contesting party in a simultaneously contested claim.

* * * * *

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


0
108. Redesignate Sec.  20.503 as Sec.  20.504, and amend by:

0
a. In the section heading removing the words ``Rule 503'' and adding in 
their place the words ``Rule 504''.
0
b. Revising the authority citation of the newly redesignated Sec.  
20.504 to read as follows:


Sec.  20.504  Rule 504. Extension of time for filing a Substantive 
Appeal in simultaneously contested claims.

* * * * *

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


0
109. Redesignate Sec.  20.504 as Sec.  20.505, and
0
a. In the section heading removing the words ``Rule 504'' and adding in 
their place the words ``Rule 505''.
0
b. Revising the authority citation of the newly redesignated Sec.  
20.505 to read as follows:


Sec.  20.505  Rule 505. Notices sent to last addresses of record in 
simultaneously contested claims.

* * * * *

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

Subpart G--Legacy Hearings on Appeal

0
110. Revise the subpart G heading to read as set forth above.
0
111. Redesignate Sec.  20.600 as Sec.  20.5, and revise the section 
heading by removing the words ``Rule 600'' and adding in their place 
the words ``Rule 5''.
0
112. Redesignate Sec.  20.608 as Sec.  20.6 and amend by:
0
a. Revising the section heading by removing the words ``Rule 608'' and 
adding in their place the words ``Rule 6''.
0
b. Redesignating paragraph (a) as paragraph (b), and removing the words 
``an appeal'' both places it appears and adding in its place the words 
``a legacy appeal'';
0
c. Redesignating paragraph (b) as paragraph (a);
0
d. In new paragraph (a), remove the heading;
0
e. In new paragraph (a)(1), removing the words ``Sec.  20.602 through 
20.605 of this part'' and adding in its place the words ``Sec.  14.630 
or Sec.  14.631 of this chapter'';
0
f. In new paragraph (a)(2), removing the words ``After the agency of 
original jurisdiction has certified an appeal to the Board of Veterans' 
Appeals'' and adding in its place the words ``Except as otherwise 
provided in paragraph (b) of this section, after an appeal to the Board 
of Veterans' Appeals has been filed''; and
0
g. In new paragraph (a)(2), removing the words ``Office of the 
Principal Deputy Vice Chairman (01C),''.
0
113. Remove the Note to subpart G.
0
114. Add new Sec.  20.600 to read as follows:

Sec.  20.600  Rule 600. Applicability.

    (a) The provisions in this subpart apply to Board hearings 
conducted in legacy appeals, as defined in Sec.  19.2 of this chapter.
    (b) Except as otherwise provided, Rules 700, 701, 704, 705, and 
707-715 (Sec. Sec.  20.700, 20.701, 20.704, 20.705, and 20.707-20.715) 
are also applicable to Board hearings conducted in legacy appeals.
0
115. Reserve Sec. Sec.  20.606-20.699.

Subpart H--Hearings on Appeal.

0
116. Amend Sec.  20.700 by:
0
a. Removing paragraphs (d) and (e); and
0
b. Revising paragraphs (a) and (b) to read as follows:


Sec.  20.700  Rule 700. General.

    (a) Right to a hearing. A hearing on appeal will be granted if an 
appellant, or an appellant's representative acting on his or her 
behalf, expresses a desire to testify before the Board.
    (b) Purpose of hearing. The purpose of a hearing is to receive 
argument and testimony relevant and material to the appellate issue or 
issues. It is contemplated that the appellant and witnesses, if any, 
will be present. A hearing will not normally be scheduled solely for 
the purpose of receiving argument by a representative. Such argument 
may be submitted in the form of a written brief. Requests for 
appearances by representatives alone to

[[Page 39859]]

personally present argument to Members of the Board may be granted if 
good cause is shown. Whether good cause has been shown will be 
determined by the presiding Member assigned to conduct the hearing.
* * * * *

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


0
117. Redesignate Sec.  20.702 as Sec.  20.704 and amend by:
0
a. Revising the section heading;
0
b. Revising paragraph (a);
0
c. Revising paragraphs (c) through (e); and
0
d. Adding new paragraph (f).
    The revisions and additions read as follows:

Sec.  20.704  Rule 704. Scheduling and notice of hearings conducted by 
the Board of Veterans' Appeals.

    (a)(1) General. To the extent that officials scheduling hearings 
for the Board determine that necessary physical resources and qualified 
personnel are available, hearings will be scheduled at the convenience 
of appellants and their representatives, with consideration of the 
travel distance involved. Subject to paragraph (f) of this section, 
electronic hearings will be scheduled for each area served by a 
regional office in accordance with the place of each case on the 
Board's docket, established under Rule 801 (Sec.  20.801) for appeals 
and under Rule 902 (Sec.  20.902) for legacy appeals, relative to other 
cases for which hearings are scheduled to be held within that area.
    (2) Special provisions for legacy appeals. The procedures for 
scheduling and providing notice of Board hearings in legacy appeals 
conducted at a Department of Veterans Affairs facility having adequate 
physical resources and personnel for the support of such hearings under 
paragraph (a)(3) of Rule 601 (Sec.  20.601(a)(3)) are contained in Rule 
603 (Sec.  20.603).
    (b) * * *
    (c) Requests for changes in hearing dates. Requests for a change in 
a hearing date may be made at any time up to two weeks prior to the 
scheduled date of the hearing if good cause is shown. Such requests 
must be in writing, must explain why a new hearing date is necessary, 
and must be filed with the Board. Examples of good cause include, but 
are not limited to, illness of the appellant and/or representative, 
difficulty in obtaining necessary records, and unavailability of a 
necessary witness. If good cause is shown, the hearing will be 
rescheduled for the next available hearing date after the appellant or 
his or her representative gives notice that the contingency which gave 
rise to the request for postponement has been removed. If good cause is 
not shown, the appellant and his or her representative will be promptly 
notified and given an opportunity to appear at the hearing as 
previously scheduled. If the appellant elects not to appear at the 
prescheduled date, the request for a hearing will be considered to have 
been withdrawn. In such cases, however, the record will be submitted 
for review by the Member who would have presided over the hearing. If 
the presiding Member determines that good cause has been shown, the 
hearing will be rescheduled for the next available hearing date after 
the contingency which gave rise to the request for postponement has 
been removed.
    (d) Failure to appear for a scheduled hearing. If an appellant (or 
when a hearing only for oral argument by a representative has been 
authorized, the representative) fails to appear for a scheduled hearing 
and a request for postponement has not been received and granted, the 
case will be processed as though the request for a hearing had been 
withdrawn. No further request for a hearing will be granted in the same 
appeal unless such failure to appear was with good cause and the cause 
for the failure to appear arose under such circumstances that a timely 
request for postponement could not have been submitted prior to the 
scheduled hearing date. A motion for a new hearing date following a 
failure to appear for a scheduled hearing must be in writing, must be 
filed within 15 days of the originally scheduled hearing date, and must 
explain why the appellant failed to appear for the hearing and why a 
timely request for a new hearing date could not have been submitted. 
Such motions must be filed with: Board of Veterans' Appeals, P.O. Box 
27063, Washington, DC 20038. Whether good cause for such failure to 
appear and the impossibility of timely requesting postponement have 
been established will be determined by the Member who would have 
presided over the hearing. If good cause and the impossibility of 
timely requesting postponement are shown, the hearing will be 
rescheduled for the next available hearing date at the same facility 
after the appellant or his or her representative gives notice that the 
contingency which gave rise to the failure to appear has been removed.
    (e) Withdrawal of hearing requests. A request for a hearing may be 
withdrawn by an appellant at any time before the date of the hearing. A 
request for a hearing may not be withdrawn by an appellant's 
representative without the consent of the appellant. Notices of 
withdrawal must be submitted to the Board.
    (f) Advancement of the case on the hearing docket. A hearing may be 
scheduled at a time earlier than would be provided for under paragraph 
(a) of this section upon written motion of the appellant or the 
representative. The same grounds for granting relief, motion filing 
procedures, and designation of authority to rule on the motion 
specified in Rule 902(c) (Sec.  20.902(c)) for advancing a case on the 
Board's docket shall apply.

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


[Approved by the Office of Management and Budget under control 
number 2900-0085]

0
118. Add new Sec.  20.702 to read as follows:

Sec.  20.702  Rule 702. Methods by which hearings are conducted.

    A hearing on appeal before the Board may be held by one of the 
following methods:
    (a) In person at the Board's principal location in Washington, DC, 
or
    (b) By electronic hearing, through picture and voice transmission, 
with the appellant appearing at a Department of Veterans Affairs 
facility.

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


0
119. Redesignate Sec.  20.703 as Sec.  20.602 and revise the newly 
redesignated Sec.  20.602 to read as follows:


Sec.  20.602  Rule 602. When a hearing before the Board of Veterans' 
Appeals may be requested in a legacy appeal; procedure for requesting a 
change in method of hearing.

    (a) How to request a hearing. An appellant, or an appellant's 
representative, may request a hearing before the Board when submitting 
the substantive appeal (VA Form 9) or anytime thereafter, subject to 
the restrictions in Rule 1305 (Sec.  20.1305). Requests for such 
hearings before a substantive appeal has been filed will be rejected.
    (b) Board's determination of method of hearing. Following the 
receipt of a request for a hearing, the Board shall determine, for 
purposes of scheduling the hearing for the earliest practical date, 
whether a hearing before the Board will be held at its principal 
location or at a facility of the Department or other appropriate 
Federal facility located within the area served by a regional office of 
the Department. The Board shall also determine whether the hearing will 
occur by means of an electronic hearing or by the appellant personally 
appearing before a Board member or panel. An electronic hearing will be 
in lieu of a hearing held by personally appearing before a Member

[[Page 39860]]

or panel of Members of the Board and shall be conducted in the same 
manner as, and considered the equivalent of, such a hearing.
    (c) Notification of method of hearing. The Board will notify the 
appellant and his or her representative of the method of a hearing 
before the Board.
    (d) How to request a change in method of hearing. Upon notification 
of the method of the hearing requested pursuant to paragraph (c) of 
this section, an appellant may make one request for a different method 
of the requested hearing. If the appellant makes such a request, the 
Board shall grant the request and notify the appellant of the change in 
method of the hearing.
    (e) Notification of scheduling of hearing. The Board will notify 
the appellant and his or her representative of the scheduled time and 
location for the requested hearing not less than 30 days prior to the 
hearing date. This time limitation does not apply to hearings which 
have been rescheduled due to a postponement requested by an appellant, 
or on his or her behalf, or due to the prior failure of an appellant to 
appear at a scheduled hearing before the Board with good cause. The 
right to notice at least 30 days in advance will be deemed to have been 
waived if an appellant accepts an earlier hearing date due to the 
cancellation of another previously scheduled hearing.

(Authority: Sec. 102, Pub. L. 114-315; 130 Stat. 1536)


0
120. Add new Sec.  20.703 to read as follows:


Sec.  20.703  Rule 703. When a hearing before the Board of Veterans' 
Appeals may be requested; procedure for requesting a change in method 
of hearing.

    (a) How to request a hearing. An appellant, or an appellant's 
representative, may request a hearing before the Board when submitting 
the Notice of Disagreement, or when requesting to modify the Notice of 
Disagreement, as provided in Rule 202 (Sec.  20.202). Requests for such 
hearings at any other time will be rejected.
    (b) Board's determination of method of hearing. Following the 
receipt of a request for a hearing, the Board shall determine, for 
purposes of scheduling the hearing for the earliest practical date, 
whether a hearing before the Board will be held at its principal 
location or by picture and voice transmission at a facility of the 
Department located within the area served by a regional office of the 
Department.
    (c) Notification of method of hearing. The Board will notify the 
appellant and his or her representative of the method of a hearing 
before the Board.
    (d) How to request a change in method of hearing. If an appellant 
declines to participate in the method of hearing selected by the Board, 
the appellant's opportunity to participate in a hearing before the 
Board shall not be affected. Upon notification of the method of the 
hearing requested pursuant to paragraph (c) of this section, an 
appellant may make one request for a different method of the requested 
hearing. If the appellant makes such a request, the Board shall grant 
the request and notify the appellant of the change in method of the 
hearing.
    (e) Notification of scheduling of hearing. The Board will notify 
the appellant and his or her representative of the scheduled time and 
location for the requested hearing not less than 30 days prior to the 
hearing date. This time limitation does not apply to hearings which 
have been rescheduled due to a postponement requested by an appellant, 
or on his or her behalf, or due to the prior failure of an appellant to 
appear at a scheduled hearing before the Board of Veterans' Appeals 
with good cause. The right to notice at least 30 days in advance will 
be deemed to have been waived if an appellant accepts an earlier 
hearing date due to the cancellation of another previously scheduled 
hearing.

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


0
121. Redesignate Sec.  20.704 as Sec.  20.603 and revise the newly 
redesignated Sec.  20.603 to read as follows:


Sec.  20.603  Rule 603. Scheduling and notice of hearings conducted by 
the Board of Veterans' Appeals at Department of Veterans Affairs field 
facilities in a legacy appeal.

    (a) General. Hearings may be conducted by a Member or Members of 
the Board during prescheduled visits to Department of Veterans Affairs 
facilities having adequate physical resources and personnel for the 
support of such hearings. Subject to paragraph (f) of this section, the 
hearings will be scheduled for each area served by a regional office in 
accordance with the place of each case on the Board's docket, 
established under Sec.  20.902, relative to other cases for which 
hearings are scheduled to be held within that area.
    (b) Notification of hearing. When a hearing at a Department of 
Veterans Affairs field facility is scheduled, the person requesting it 
will be notified of its time and place, and of the fact that the 
Government may not assume any expense incurred by the appellant, the 
representative, or witnesses attending the hearing.
    (c) Requests for changes in hearing dates. Requests for a change in 
a hearing date may be made at any time up to two weeks prior to the 
scheduled date of the hearing if good cause is shown. Such requests 
must be in writing, must explain why a new hearing date is necessary, 
and must be filed with the Board. Examples of good cause include, but 
are not limited to, illness of the appellant and/or representative, 
difficulty in obtaining necessary records, and unavailability of a 
necessary witness. If good cause is shown, the hearing will be 
rescheduled for the next available hearing date after the appellant or 
his or her representative gives notice that the contingency which gave 
rise to the request for postponement has been removed. If good cause is 
not shown, the appellant and his or her representative will be promptly 
notified and given an opportunity to appear at the hearing as 
previously scheduled. If the appellant elects not to appear at the 
prescheduled date, the request for a hearing will be considered to have 
been withdrawn. In such cases, however, the record will be submitted 
for review by the Member who would have presided over the hearing. If 
the presiding Member determines that good cause has been shown, the 
hearing will be rescheduled for the next available hearing date after 
the contingency which gave rise to the request for postponement has 
been removed.
    (d) Failure to appear for a scheduled hearing. If an appellant (or 
when a hearing only for oral argument by a representative has been 
authorized, the representative) fails to appear for a scheduled hearing 
and a request for postponement has not been received and granted, the 
case will be processed as though the request for a hearing had been 
withdrawn. No further request for a hearing will be granted in the same 
appeal unless such failure to appear was with good cause and the cause 
for the failure to appear arose under such circumstances that a timely 
request for postponement could not have been submitted prior to the 
scheduled hearing date. A motion for a new hearing date following a 
failure to appear for a scheduled hearing must be in writing, must be 
filed within 15 days of the originally scheduled hearing date, and must 
explain why the appellant failed to appear for the hearing and why a 
timely request for a new hearing date could not have been submitted. 
Such motions must be filed with: Board of Veterans' Appeals, P.O. Box 
27063, Washington, DC 20038. Whether good cause for such failure to 
appear and the impossibility of timely requesting postponement have 
been established

[[Page 39861]]

will be determined by the Member who would have presided over the 
hearing. If good cause and the impossibility of timely requesting 
postponement are shown, the hearing will be rescheduled for the next 
available hearing date at the same facility after the appellant or his 
or her representative gives notice that the contingency which gave rise 
to the failure to appear has been removed.
    (e) Withdrawal of hearing requests. A request for a hearing may be 
withdrawn by an appellant at any time before the date of the hearing. A 
request for a hearing may not be withdrawn by an appellant's 
representative without the consent of the appellant. Notices of 
withdrawal must be submitted to the Board.
    (f) Advancement of the case on the hearing docket. A hearing may be 
scheduled at a time earlier than would be provided for under paragraph 
(a) of this section upon written motion of the appellant or the 
representative. The same grounds for granting relief, motion filing 
procedures, and designation of authority to rule on the motion 
specified in Rule 902(c) (Sec.  20.902(c)) for advancing a case on the 
Board's docket shall apply.

(Authority: 38 U.S.C. 7107; Sec. 102, Pub. L. 114-315; 130 Stat. 
1536)


[Approved by the Office of Management and Budget under control 
number 2900-0085]

0
122. Redesignate Sec.  20.705 as Sec.  20.601 and revise the newly 
redesignated Sec.  20.601 to read as follows:


Sec.  20.601  Rule 601. Methods by which hearings in legacy appeals are 
conducted; scheduling and notice provisions for such hearings.

    (a) Methods by which hearings in legacy appeals are conducted. A 
hearing on appeal before the Board may be held by one of the following 
methods:
    (1) In person at the Board's principal location in Washington, DC;
    (2) By electronic hearing, through voice transmission or through 
picture and voice transmission, with the appellant appearing at a 
Department of Veterans Affairs facility or appropriate Federal 
facility; or
    (3) At a Department of Veterans Affairs facility having adequate 
physical resources and personnel for the support of such hearings.
    (b) Electronic hearings. An appropriate Federal facility consists 
of a Federal facility having adequate physical resources and personnel 
for the support of such hearings.
    (c) Provisions for scheduling and providing notice of hearings in 
legacy appeals.
    (1) The procedures for scheduling and providing notice of Board 
hearings in legacy appeals conducted by the methods described in 
paragraphs (a)(1) and (a)(2) of this section are contained in Rule 704 
(Sec.  20.704).
    (2) The procedures for scheduling and providing notice of Board 
hearings in legacy appeals conducted at a Department of Veterans 
Affairs facility having adequate physical resources and personnel for 
the support of such hearings under (a)(3) are contained in Rule 603 
(Sec.  20.603).

(Authority: 38 U.S.C. 7107; Sec. 102, Pub. L. 114-315; 130 Stat. 
1536)


0
123. Redesignate Sec.  20.706 as Sec.  20.705 and revise the newly 
redesignated Sec.  20.705 to read as follows:


Sec.  20.705  Rule 705. Functions of the presiding Member.

    (a) General. The presiding Member is responsible for the conduct of 
a Board hearing in accordance with the provisions of subparts G and H 
of this part.
    (b) Duties. The duties of the presiding Member include, but are not 
limited to, any of the following:
    (1) Conducting a prehearing conference, pursuant to Sec.  20.707;
    (2) Ruling on questions of procedure;
    (3) Administering the oath or affirmation;
    (4) Ensuring that the course of the Board hearing remains relevant 
to the issue or issues on appeal;
    (5) Setting reasonable time limits for the presentation of 
argument;
    (6) Prohibiting cross-examination of the appellant and any 
witnesses;
    (7) Excluding documentary evidence, testimony, and/or argument 
which is not relevant or material to the issue or issues being 
considered or which is unduly repetitious;
    (8) Terminating a Board hearing or directing that an offending 
party, representative, witness, or observer leave the hearing if that 
party persists or engages in disruptive or threatening behavior;
    (9) Disallowing or halting the use of personal recording equipment 
being used by an appellant or representative if it becomes disruptive 
to the hearing; and
    (10) Taking any other steps necessary to maintain good order and 
decorum.
    (c) Ruling on motions. The presiding Member has the authority to 
rule on any Board hearing-related motion.

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


0
124. Add new Sec.  20.706 to read as follows:


Sec.  20.706  Rule 706. Designation of Member or Members to conduct the 
hearing.

    Hearings will be conducted by a Member or panel of Members of the 
Board. Where a proceeding has been assigned to a panel, the Chairman, 
or the Chairman's designee, shall designate one of the Members as the 
presiding Member.


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


0
125. Redesignate Sec.  20.707 as Sec.  20.604 and amend by:
0
a. In the section heading, remove the words ``Rule 707'' and add in 
their place the words ``Rule 604'';
0
b. In the section heading, add the words ``in a legacy appeal'' after 
the word ``hearing'';
0
c. Remove the words ``Sec.  19.3 of this part'' and add in their place 
the words ``Rule 106 (Sec.  20.106)'';
0
d. Remove the words ``Sec.  19.11(c) of this part'' and add in their 
place the words ``Rule 1004 (Sec.  20.1004)''; and
0
e. Adding an authority citation to the newly redesignated Sec.  20.604 
to read as follows:

(Authority: 38 U.S.C. 7102; 38 U.S.C. 7101 (2016))

0
126. Redesignate Sec.  20.708 as Sec.  20.707 and amend by:
0
a. In the section heading, remove the words ``Rule 708'' and add in 
their place the words ``Rule 707'';
0
b. Removing all text in the introductory text after the first sentence; 
and
0
c. Adding an authority citation to the newly redesignated Sec.  20.707 
to read as follows:


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

0
127. Redesignate Sec.  20.709 as Sec.  20.605, revise the section 
heading, and add an authority citation to the newly redesignated Sec.  
20.605 to read as follows:


Sec.  20.605  Rule 605. Procurement of additional evidence following a 
hearing in a legacy appeal.

* * * * *

(Authority: 38 U.S.C. 7102; 38 U.S.C. 7105, 7101 (2016))


0
128. Redesignate Sec.  20.710 as Sec.  20.708, and revise the section 
heading by removing the words ``Rule 710'' and add in their place the 
words ``Rule 708'' in the newly redesignated Sec.  20.708.


Sec.  20.711  [Redesignated and Amended]

0
129. Redesignate Sec.  20.711 as Sec.  20.709 and amend by:
0
a. In the section heading remove the words ``Rule 711'' and add in 
their place the words ``Rule 709''; and
0
b. In paragraph (c), removing the words ``Director, Office of 
Management, Planning and Analysis (014),'' in the newly redesignated 
Sec.  20.709.
0
130. Redesignate Sec.  20.712 as Sec.  20.710 and revise the section 
heading by

[[Page 39862]]

removing the words ``Rule 712'' and add in their place the words ``Rule 
710'' in the newly redesignated Sec.  20.710.
0
131. Redesignate Sec.  20.713 as Sec.  20.711 and revise paragraph (b) 
in the newly redesignated Sec.  20.711 to read as follows:


Sec.  20.711  Rule 711. Hearings in simultaneously contested claims.

    (a) * * *
    (b) Requests for changes in hearing dates. (1) General. Except as 
described in paragraphs (b)(2) and (3) of this section, any party to a 
simultaneously contested claim may request a change in a hearing date 
in accordance with the provisions of Rule 704, paragraph (c) (Sec.  
20.704(c)).
    (2)(i) A request under Rule 704, paragraph (c) must be made within 
60 days from the date of the letter of notification of the time and 
place of the hearing, or not later than two weeks prior to the 
scheduled hearing date, whichever is earlier.
    (ii) In order to obtain a new hearing date under the provisions of 
Rule 704, paragraph (c), the consent of all other interested parties 
must be obtained and submitted with the request for a new hearing date. 
If such consent is not obtained, the date of the hearing will become 
fixed. After a hearing date has become fixed, an extension of time for 
appearance at a hearing will be granted only for good cause, with due 
consideration of the interests of other parties. Examples of good cause 
include, but are not limited to, illness of the appellant and/or 
representative, difficulty in obtaining necessary records, and 
unavailability of a necessary witness. The motion for a new hearing 
date must be in writing and must explain why a new hearing date is 
necessary. If good cause is shown, the hearing will be rescheduled for 
the next available hearing date after the appellant or his or her 
representative gives notice that the contingency which gave rise to the 
request for postponement has been removed. Ordinarily, however, 
hearings will not be postponed more than 30 days. Whether good cause 
for establishing a new hearing date has been shown will be determined 
by the presiding Member assigned to conduct the hearing.
    (3) A copy of any motion for a new hearing date required by these 
rules must be mailed to all other interested parties by certified mail, 
return receipt requested. The receipts, which must bear the signatures 
of the other interested parties, and a letter explaining that they 
relate to the motion for a new hearing date and containing the 
applicable Department of Veterans Affairs file number must be filed at 
the same address where the motion was filed as proof of service of the 
motion. Each interested party will be allowed a period of 10 days from 
the date that the copy of the motion was received by that party to file 
written argument in response to the motion.

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


0
132. Redesignate Sec.  20.714 as Sec.  20.712 and revise the newly 
redesignated Sec.  20.712 to read as follows:


Sec.  20.712  Rule 712. Record of hearing.

    (a) General. All Board hearings will be recorded. The Board will 
prepare a written transcript for each Board hearing conducted. The 
transcript will be the official record of the hearing and will be 
incorporated as a part of the record on appeal. The Board will not 
accept alternate transcript versions prepared by the appellant or 
representative.
    (b) Hearing recording. The recording of the Board hearing will be 
retained for a period of 12 months following the date of the Board 
hearing as a duplicate record of the proceeding.
    (c) Copy of written transcript. If the appellant or representative 
requests a copy of the written transcript in accordance with Sec.  
1.577 of this chapter, the Board will furnish one copy to the appellant 
or representative.
0
133. Redesignate Sec.  20.715 as Sec.  20.713 and amend by:
0
a. Revising the section heading by removing the words ``Rule 715'' and 
adding in their place the words ``Rule 713'';
0
b. Revising the fourth sentence of the introductory text to read: ``In 
all such situations, advance arrangements must be made with the Board 
of Veterans' Appeals, P.O. Box 27063, Washington, DC 20038.'';
0
c. Removing the fifth and sixth sentences; and
0
d. Revising the authority citation of the newly redesigated Sec.  
20.713 to read:


Sec.  20.713  Rule 713. Recording of hearing by appellant or 
representative.

* * * * *

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


0
134. Redesignate Sec.  20.716 as Sec.  20.714 and revise the newly 
redesignated Sec.  20.714 to read as follows:


Sec.  20.714   Rule 714. Correction of hearing transcripts.

    If an appellant wishes to seek correction of perceived errors in a 
hearing transcript, the appellant or his or her representative should 
move for correction of the hearing transcript within 30 days after the 
date that the transcript is mailed to the appellant. The motion must be 
in writing and must specify the error, or errors, in the transcript and 
the correct wording to be substituted. The motion must be filed with 
the Board of Veterans' Appeals, P.O. Box 27063, Washington, DC 20038. 
The ruling on the motion will be made by the presiding Member of the 
hearing.

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


0
135. Redesignate Sec.  20.717 as Sec.  20.715 and revise the newly 
redesignated Sec.  20.715 to read as follows:


Sec.  20.715  Rule 715. Loss of hearing recordings or transcripts--
motion for new hearing.

    (a) Notification. (1) The Board must notify the appellant and his 
or her representative in writing in the event the Board discovers that 
a Board hearing has not been recorded in whole or in part due to 
equipment failure or other cause, or the official transcript of the 
hearing is lost or destroyed and the recording upon which it was based 
is no longer available. The notice must provide the appellant with a 
choice of either of the following options:
    (i) Appear at a new Board hearing, pursuant to Rules 703 and 704 
(Sec. Sec.  20.703 and 20.704) for appeals or Rules 602 and 603 
(Sec. Sec.  20.602 and 20.603) for legacy appeals, as defined in Sec.  
19.2 of this chapter; or
    (ii) Have the Board proceed to appellate review of the appeal based 
on the evidence of record.
    (2) The notice will inform the appellant that he or she has a 
period of 30 days to respond to the notice. If the appellant does not 
respond by requesting a new hearing within 30 days from the date of the 
mailing of the notice, then the Board will decide the appeal on the 
basis of the evidence of record. A request for a new Board hearing will 
not be accepted once the Board has issued a decision on the appeal.
    (b) Board decision issued prior to a loss of the recording or 
transcript. The Board will not accept a request for a new Board hearing 
under this section if a Board decision was issued on an appeal prior to 
the loss of the recording or transcript of a Board hearing, and the 
Board decision considered testimony provided at that Board hearing.

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

Sec.  Sec.  20.716  and 20.717 [Reserved]

0
136. Reserve Sec. Sec.  20.716 and 20.717.

Subpart I--Appeals Processing

0
137. Revise the subpart I heading to read as set forth above.
0
138. Redesignate Sec.  20.800 as Sec.  20.901, and amend by:

[[Page 39863]]

0
a. Revising the section heading by removing the words ``Rule 800'' and 
adding in their place the words ``Rule 901''.
0
b. Revising the authority citation of the newly redesignated Sec.  
20.901 to read as follows:


Sec.  20.901  Rule 901. Submission of additional evidence after 
initiation of appeal.

* * * * *

(Authority: 38 U.S.C. 5902, 5903, 5904; 38 U.S.C. 5904, 7105(d)(1) 
(2016))


0
139. Add Sec. Sec.  20.800 through 20.804 to read as follows:


Sec.  20.800  Rule 800. Order of consideration of appeals.

    (a) Docketing of appeals. (1) Applications for review on appeal are 
docketed in the order in which they are received on the following 
dockets:
    (i) A docket for appeals in which an appellant does not request a 
hearing or an opportunity to submit additional evidence on the Notice 
of Disagreement;
    (ii) A docket for appeals in which the appellant does not request a 
hearing but does request an opportunity to submit additional evidence 
on the Notice of Disagreement; and
    (iii) A docket for appeals in which the appellant requests a 
hearing on the Notice of Disagreement.
    (2) An appeal may be moved from one docket to another only when the 
Notice of Disagreement has been modified pursuant to Rule 202, 
paragraph (c)(3) (Sec.  20.202(c)(3)). The request to modify the Notice 
of Disagreement must reflect that the appellant requests the option 
listed in Sec.  20.202(b) that corresponds to the docket to which the 
appeal will be moved. An appeal that is moved from one docket to 
another will retain its original docket date.
    (b) Except as otherwise provided, each appeal will be decided in 
the order in which it is entered on the docket to which it is assigned.
    (c) Advancement on the docket--(1) Grounds for advancement. A case 
may be advanced on the docket to which it is assigned on the motion of 
the Chairman, the Vice Chairman, a party to the case before the Board, 
or such party's representative. Such a motion may be granted only if 
the case involves interpretation of law of general application 
affecting other claims, if the appellant is seriously ill or is under 
severe financial hardship, or if other sufficient cause is shown. 
``Other sufficient cause'' shall include, but is not limited to, 
administrative error resulting in a significant delay in docketing the 
case, administrative necessity, or the advanced age of the appellant. 
For purposes of this Rule, ``advanced age'' is defined as 75 or more 
years of age. This paragraph does not require the Board to advance a 
case on the docket in the absence of a motion of a party to the case or 
the party's representative.
    (2) Requirements for motions. Motions for advancement on the docket 
must be in writing and must identify the specific reason(s) why 
advancement on the docket is sought, the name of the veteran, the name 
of the appellant if other than the veteran (e.g., a veteran's survivor, 
a guardian, a substitute appellant, or a fiduciary appointed to receive 
VA benefits on an individual's behalf), and the applicable Department 
of Veterans Affairs file number. The motion must be filed with the 
Board of Veterans' Appeals, P.O. Box 27063, Washington, DC 20038.
    (3) Disposition of motions. If a motion is received prior to the 
assignment of the case to an individual member or panel of members, the 
ruling on the motion will be by the Vice Chairman, who may delegate 
such authority to a Deputy Vice Chairman. If a motion to advance a case 
on the docket is denied, the appellant and his or her representative 
will be immediately notified. If the motion to advance a case on the 
docket is granted, that fact will be noted in the Board's decision when 
rendered.
    (d) Consideration of appeals remanded by the United States Court of 
Appeals for Veterans Claims. A case remanded by the United States Court 
of Appeals for Veterans Claims for appropriate action will be treated 
expeditiously by the Board without regard to its place on the Board's 
docket.

(Authority: 38 U.S.C. 7112; Sec. 302, Pub. L. 103-446; 108 Stat. 
4645)


    (e) Case remanded to correct duty to assist error and new Notice of 
Disagreement filed after readjudication. A case will not be returned to 
the Board following the agency of original jurisdiction's 
readjudication of an appeal previously remanded by the Board pursuant 
to Rule 803, paragraph (c) (Sec.  20.802(c)), unless the claimant files 
a new Notice of Disagreement. Such cases will be docketed in the order 
in which the most recent Notice of Disagreement was received.
    (f) Cases involving substitution. A case returned to the Board 
following the grant of a substitution request or pursuant to an appeal 
of a denial of a substitution request assumes the same place on the 
docket held by the deceased appellant at the time of his or her death. 
If the deceased appellant's case was advanced on the docket prior to 
his or her death pursuant to paragraph (c) of this section, the 
substitute will receive the benefit of the advanced placement.

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


    (g) Postponement to provide hearing. Any other provision of this 
Rule notwithstanding, a case may be postponed for later consideration 
and determination if such postponement is necessary to afford the 
appellant a hearing.

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

Sec.  20.801  Rule 801. The decision.

    (a) General. Decisions of the Board will be based on a de novo 
review of the evidence of record at the time of the agency of original 
jurisdiction decision on the issue or issues on appeal, and any 
additional evidence submitted pursuant to Rules 302 and 303 (Sec. Sec.  
20.302 and 20.303). Any findings favorable to the claimant as 
identified by the agency of original jurisdiction in notification of a 
decision or in a prior Board decision on an issue on appeal are binding 
on all VA and Board of Veterans' Appeals adjudicators, unless rebutted 
by clear and convincing evidence to the contrary. For purposes of this 
section, findings means conclusions on questions of fact and 
application of law to facts made by an adjudicator concerning the issue 
under review.
    (b) Content. The decision of the Board will be in writing and will 
set forth specifically the issue or issues under appellate 
consideration. Except with respect to appeals which are dismissed 
because an appellant seeking nonmonetary benefits has died while the 
appeal was pending, the decision will also include:
    (1) Findings of fact and conclusions of law on all material issues 
of fact and law presented on the record;
    (2) The reasons or bases for those findings and conclusions;
    (3) A general statement reflecting whether any evidence was 
received at a time when not permitted under subpart D, and informing 
the appellant that any such evidence was not considered by the Board 
and of the options available to have that evidence reviewed by the 
Department of Veterans Affairs; and
    (4) An order granting or denying the benefit or benefits sought on 
appeal, dismissing the appeal, or remanding the issue or issues as 
described in Rule 802 (Sec.  20.802).
    (c) A decision by a panel of Members will be by a majority vote of 
the panel Members.

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


[[Page 39864]]




Sec.  20.802  Rule 802. Remand for correction of error.

    (a) Remand. Unless the issue or issues can be granted in full, the 
Board shall remand the appeal to the agency of original jurisdiction 
for correction of an error on the part of the agency of original 
jurisdiction to satisfy its duties under 38 U.S.C. 5103A, if the error 
occurred prior to the date of the agency of original jurisdiction 
decision on appeal. The Board may remand for correction of any other 
error by the agency of original jurisdiction in satisfying a regulatory 
or statutory duty, if correction of the error would have a reasonable 
possibility of aiding in substantiating the appellant's claim. The 
remand must specify the action to be taken by the agency of original 
jurisdiction.
    (b) Advisory Medical Opinion. If the Board determines that an error 
as described in paragraph (a) of this section may only be corrected by 
obtaining an advisory medical opinion from a medical expert who is not 
an employee of the Department of Veterans Affairs, the Board shall 
remand the case to the agency of original jurisdiction to obtain such 
an opinion, specifying the questions to be posed to the independent 
medical expert providing the advisory medical opinion.
    (c) Action by agency of original jurisdiction after receipt of 
remand. After correction of any error identified in the Board's remand, 
the agency of original jurisdiction must readjudicate the claim and 
provide notice of the decision under 38 U.S.C. 5104, to include notice 
under 38 U.S.C. 5104C of a claimant's options for further review of the 
agency of original jurisdiction's decision. The agency of original 
jurisdiction must provide for the expeditious treatment of any claim 
that is remanded by the Board.

(Authority: 38 U.S.C. 5103A, 5109, 5109B, 7102, 7104(a), 7105)

Sec.  20.803  Rule 803. Content of Board decision, remand, or order in 
simultaneously contested claims.

    The content of the Board's decision, remand, or order in appeals 
involving a simultaneously contested claim will be limited to 
information that directly affects the issues involved in the contested 
claim. Appellate issues that do not involve all of the contesting 
parties will be addressed in one or more separate written decisions, 
remands, or orders that will be furnished only to the appellants 
concerned and their representatives, if any.

(Authority: 5 U.S.C. 552a(b), 38 U.S.C. 5701(a))

Sec.  20.804  Rule 804. Opinions of the General Counsel.

    (a) The Board may obtain an opinion from the General Counsel of the 
Department of Veterans Affairs on legal questions involved in the 
consideration of an appeal.
    (b) Filing of requests for the procurement of opinions. The 
appellant or representative may request that the Board obtain an 
opinion under this section. Such request must be in writing and will be 
granted upon a showing of good cause, such as the identification of a 
complex or controversial legal issue involved in the appeal which 
warrants such an opinion.
    (c) Notification of evidence to be considered by the Board and 
opportunity for response. If the Board requests an opinion pursuant to 
this section, it will notify the appellant and his or her 
representative, if any. When the Board receives the opinion, it will 
furnish a copy of the opinion to the appellant, subject to the 
limitations provided in 38 U.S.C. 5701(b)(1), and to the appellant's 
representative, if any. A period of 60 days from the date the Board 
furnishes a copy of the opinion will be allowed for response, which may 
include the submission of relevant evidence or argument. The date the 
Board furnishes a copy will be presumed to be the same as the date of 
the letter or memorandum that accompanies the copy of the opinion for 
purposes of determining whether a response was timely filed.
    (d) For purposes of this section, the term ``the Board'' includes 
the Chairman, the Vice Chairman, any Deputy Vice Chairman, and any 
Member of the Board before whom a case is pending.

(Authority: 38 U.S.C. 5107(a), 7102(c), 7104(a), 7104(c))

Subpart J--Action by the Board in Legacy Appeals

0
140. Revise the subpart J heading as set forth above.
0
141. Redesignate Sec.  20.900 as Sec.  20.902 and amend by:
0
a. Revising the section heading by removing the words ``Rule 900'' and 
adding in their place the words ``Rule 902'';
0
b. In paragraph (c)(1), revising the third sentence;
0
c. In paragraph (c)(2), removing the words ``Director, Office of 
Management, Planning and Analysis (014),'';
0
d. Revise the authority citation at the end of paragraph (d); and
0
e. Revise the authority citation of the newly redesignated Sec.  20.902 
to read as follows:


Sec.  20.902  Rule 902. Order of consideration of appeals.

* * * * *
    (c) * * *
    (1) * * *
    ``Other sufficient cause'' shall include, but is not limited to, 
administrative error resulting in a significant delay in docketing the 
case, administrative necessity, or the advanced age of the appellant.
* * * * *
    (d) * * *

(Authority: Sec. 302, Pub. L. 103-446; 108 Stat. 4645)

* * * * *

(Authority: 38 U.S.C. 5121A, 7107; 38 U.S.C. 7107 (2016))

0
142. Add Sec.  20.900 to read as follows:


Sec.  20.900  Rule 900. Applicability.

    The provisions in this subpart apply to Board decisions and remands 
rendered in legacy appeals, as defined in Sec.  19.2 of this chapter.

(Authority: Sec. 2, Pub. L. 115-55; 131 Stat. 1105)

Sec.  20.901  [Redesignated and Amended]

0
143. Redesignate Sec.  20.901 as Sec.  20.906 and amend by:
0
a. Revising the section heading by replacing the words ``Rule 901'' and 
adding in their place the words ``Rule 906''.
0
b. In paragraph (b), removing the words ``Armed Forces Institute of 
Pathology'' and adding in its place the words ``Joint Pathology 
Center'' both places it appears in the newly redesignated Sec.  20.906.
0
144. Redesignate Sec.  20.902 as Sec.  20.907 and amend by:
0
a. Revising the section heading by removing the words ``Rule 902'' and 
adding in their place the words ``Rule 907''.
0
b. In the introductory text removing the words ``Rule 901 (Sec.  20.901 
of this part)'' and adding in its place the words ``Rule 906 (Sec.  
20.906)'' in the newly redesignated Sec.  20.907.
0
145. Redesignate Sec.  20.903 as Sec.  20.908 and amend by:
0
a. Revising the section heading by removing the words ``Rule 903'' and 
adding in their place the words ``Rule 908'';
0
b. In paragraph (a), removing the words ``Rule 901 (Sec.  20.901 of 
this part)'' and adding in its place the words ``Rule 906 (Sec.  
20.906)''; and
0
c. In paragraph (b), removing the words ``Sec.  19.9(d)(5) of this 
chapter'' and adding in its place the words ``Rule 904(d)(5) (Sec.  
20.904(d)(5))'' in the newly redesignated Sec.  20.908.
0
146. Redesignate Sec.  20.904 as Sec.  20.1000 and amend by revising 
the section

[[Page 39865]]

heading and paragraphs (a)(2) and (3) of the newly redesignated Sec.  
20.1000 to read as follows:


Sec.  20.1000  Rule 1000. Vacating a decision.

* * * * *
    (a) * * *
    (1) * * *
    (2) When there was a prejudicial failure to afford the appellant a 
personal hearing. (Where there was a failure to honor a request for a 
hearing and a hearing is subsequently scheduled, but the appellant 
fails to appear, the decision will not be vacated.), and
    (3) For a legacy appeal, as defined in Sec.  19.2 of this chapter, 
when a Statement of the Case or required Supplemental Statement of the 
Case was not provided.
* * * * *

Subpart K--Vacatur and Reconsideration

0
147. Revise the subpart K heading as set forth above.


Sec.  20.1000  [Redesignated and Amended]

0
148. Redesignate Sec.  20.1000 as Sec.  20.1001 and amend by:
0
a. Revising the section heading by removing the words ``Rule 1000'' and 
adding in their place the words ``Rule 1001'';
0
b. Removing the words ``and material'' from paragraph (b).


Sec.  20.1001  [Redesignated and Amended]

0
149. Redesignate Sec.  20.1001 as Sec.  20.1002 and amend by:
0
a. Revising the section heading by removing the words ``Rule 1001'' and 
adding in their place the words ``Rule 1002'';
0
b. In paragraph (b), removing the words ``Director, Office of 
Management, Planning and Analysis (014),''; and
0
c. In paragraph (c)(2), removing the words``Sec.  19.11 of this 
chapter'' and adding in its place the words ``Rule 1004 (Sec.  
20.1004)'' in the newly redesignated Sec.  20.1002.
0
150. Amend Sec.  20.1003 by revising the first sentence and removing 
the fifth sentence of the introductory text to read as follows:


Sec.  20.1003  Rule 1003. Hearing on reconsideration.

    After a motion for reconsideration has been allowed, a hearing will 
be granted if the issue under reconsideration was considered on a 
docket for cases that may include a hearing, and an appellant requests 
a hearing before the Board.
* * * * *

Subpart L--Finality

0
151. Amend Sec.  20.1103 by revising to read as follows:


Sec.  20.1103  Rule 1103. Finality of determinations of the agency of 
original jurisdiction where issue is not appealed.

    A determination on a claim by the agency of original jurisdiction 
of which the claimant is properly notified is final if an appeal is not 
perfected as prescribed in Sec.  19.52 of this chapter. If no Notice of 
Disagreement is filed as prescribed in subpart C of this part, the 
claim shall not thereafter be readjudicated or allowed, except as 
provided by 38 U.S.C. 5104B or 5108, or by regulation.
0
152. Amend Sec.  20.1105 by revising to read as follows:


Sec.  20.1105  Rule 1105. Supplemental claim after promulgation of 
appellate decision.

    (a) After an appellate decision has been promulgated on a claim, a 
claimant may file a supplemental claim with the agency of original 
jurisdiction by submitting the prescribed form with new and relevant 
evidence related to the previously adjudicated claim as set forth in 
Sec.  3.2601 of this chapter, except in cases involving simultaneously 
contested claims under Subpart E of this part.

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


    (b) Legacy appeals pending on the effective date. For legacy 
appeals as defined in Sec.  19.2 of this chapter, where prior to the 
effective date described in Rule 4 (Sec.  20.4), an appellant requested 
that a claim be reopened after an appellate decision has been 
promulgated and submitted evidence in support thereof, a determination 
as to whether such evidence is new and material must be made and, if it 
is, as to whether it provides a basis for allowing the claim. An 
adverse determination as to either question is appealable.

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

Subpart M--Privacy Act

0
153. Amend Sec.  20.1201 by removing the words ``Rules 1000 through 
1003 (Sec. Sec.  20.1000-20.1003 of this part)'' and adding in its 
place the words ``Rules 1001 through 1004 (Sec. Sec.  20.1001-
20.1004)'' both places it appears.

Subpart N--Miscellaneous

0
154. Amend Sec.  20.1301 by:
0
a. Redesignating paragraph (b) as paragraph (c) and revising the newly 
redesignated paragraph (c)(1) by removing the text ``the internet at 
https://www.index.va.gov/search/va/bva.html'' and replacing it with the 
text ``the Board's website'';
0
b. Adding new paragraph (b) and revising paragraph (a);
0
c. In paragraph (c)(2):
0
i. Removing the words ``at the Research Center'' from the second 
sentence;
0
ii. Removing the words ``Board's Research Center'' and adding in its 
place the words ``Board'' from the third sentence;
0
iii. Removing the word ``paper'' from the ninth sentence; and
0
iv. Removing the words ``Research Center (01C1),'' from the last 
sentence.
    The additions and revisions read as follows:


Sec.  20.1301  Rule 1301. Disclosure of information.

    (a) Policy. It is the policy of the Board for the full text of 
appellate decisions to be disclosed to appellants. In those situations 
where disclosing certain information directly to the appellant would 
not be in conformance with 38 U.S.C. 5701, that information will be 
removed from the decision and the remaining text will be furnished to 
the appellant. A full-text appellate decision will be disclosed to the 
designated representative, however, unless the relationship between the 
appellant and representative is such (for example, a parent or spouse) 
that disclosure to the representative would be as harmful as if made to 
the appellant.
    (b) Legacy appeals. For legacy appeals as defined in Sec.  19.2 of 
this chapter, the policy described in paragraph (a) is also applicable 
to Statements of the Case and supplemental Statements of the Case.

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

* * * * *
0
155. Amend Sec.  20.1302 by removing the words ``Rule 900 (Sec.  
20.900(a)(2)'' and adding in its place the words ``Rule 800, paragraph 
(f) (Sec.  20.800(f)) or, for legacy appeals, Rule 902, paragraph 
(a)(2) (Sec.  20.902(a)(2))'' both places it appears.
0
156. Redesignate Sec.  20.1304 as Sec.  20.1305 and amend by:
0
a. Revising the section heading and paragraph (a);
0
b. In paragraph (b)(1), removing the words ``Director, Office of 
Management, Planning and Analysis (014),'';
0
c. In paragraph (b)(2), removing the words ``Sec.  20.903 of this 
chapter'' and adding in their place ``Sec.  20.908''; and
0
d. In paragraph (c), removing the words ``Sec.  20.903'' and adding in 
their place the words ``Sec.  20.908'';
0
e. Revising the authority citation in the newly redesignated Sec.  
20.1305 to read as follows:

[[Page 39866]]

Sec.  20.1305  Rule 1305. Procedures for legacy appellants to request a 
change in representation, personal hearing, or submission of additional 
evidence following certification of an appeal to the Board of Veterans' 
Appeals.

    (a) Request for a change in representation, request for a personal 
hearing, or submission of additional evidence within 90 days following 
notification of certification and transfer of records. An appellant in 
a legacy appeal, as defined in Sec.  19.2 of this chapter, and his or 
her representative, if any, will be granted a period of 90 days 
following the mailing of notice to them that an appeal has been 
certified to the Board for appellate review and that the appellate 
record has been transferred to the Board, or up to and including the 
date the appellate decision is promulgated by the Board, whichever 
comes first, during which they may submit a request for a personal 
hearing, additional evidence, or a request for a change in 
representation. Any such request or additional evidence should be 
submitted directly to the Board and not to the agency of original 
jurisdiction. If any such request or additional evidence is submitted 
to the agency of original jurisdiction instead of to the Board, the 
agency of original jurisdiction must forward it to the Board in 
accordance with Sec.  19.37(b) of this chapter. The date of mailing of 
the letter of notification will be presumed to be the same as the date 
of that letter for purposes of determining whether the request was 
timely made or the evidence was timely submitted. Any evidence which is 
submitted at a hearing on appeal which was requested during such period 
will be considered to have been received during such period, even 
though the hearing may be held following the expiration of the period. 
Any pertinent evidence submitted by the appellant or representative is 
subject to the requirements of paragraph (d) of this section if a 
simultaneously contested claim is involved.
* * * * *

(Authority: 38 U.S.C. 5121A, 5902, 5903; 38 U.S.C. 5904, 7104, 7105, 
7105A (2016))


0
157. Add new Sec.  20.1304 to read as follows:


Sec.  20.1304  Rule 1304. Request for a change in representation.

    (a) Request for a change in representation within 90 days following 
Notice of Disagreement. An appellant and his or her representative, if 
any, will be granted a period of 90 days following receipt of a Notice 
of Disagreement, or up to and including the date the appellate decision 
is promulgated by the Board, whichever comes first, during which they 
may submit a request for a change in representation.
    (b) Subsequent request for a change in representation--Following 
the expiration of the period described in paragraph (a) of this 
section, the Board will not accept a request for a change in 
representation except when the appellant demonstrates on motion that 
there was good cause for the delay. Examples of good cause include, but 
are not limited to, illness of the appellant or the representative 
which precluded action during the period; death of an individual 
representative; illness or incapacity of an individual representative 
which renders it impractical for an appellant to continue with him or 
her as representative; and withdrawal of an individual representative. 
Such motions must be in writing and must include the name of the 
veteran; the name of the claimant or appellant if other than the 
veteran (e.g., a veteran's survivor, a guardian, or a fiduciary 
appointed to receive VA benefits on an individual's behalf) or the name 
of any substitute claimant or appellant; the applicable Department of 
Veterans Affairs file number; and an explanation of why the request for 
a change in representation could not be accomplished in a timely 
manner. Such motions must be filed at the following address: Board of 
Veterans' Appeals, P.O. Box 27063, Washington, DC 20038. Depending upon 
the ruling on the motion, action will be taken as follows:
    (1) Good cause not shown. If good cause is not shown, the request 
for a change in representation will be referred to the agency of 
original jurisdiction for association with the appellant's file for any 
pending or subsequently received claims upon completion of the Board's 
action on the pending appeal without action by the Board concerning the 
request.
    (2) Good cause shown. If good cause is shown, the request for a 
change in representation will be honored.

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

Sec.  Sec.  20.1306-20.1399  [Reserved]

0
158. Add and reserve Sec. Sec.  20.1306 through 20.1399.

Subpart O--Revision of Decisions on Grounds of Clear and 
Unmistakable Error


Sec.  20.1401  [Amended]

0
159. Amend Sec.  20.1401 by removing the words ``, but does not include 
officials authorized to file administrative appeals pursuant to Sec.  
19.51 of this title'' in the last sentence of paragraph (b).
0
160. Amend Sec.  20.1403 by revising paragraph (b)(2) to read as 
follows:


Sec.  20.1403  Rule 1403. What constitutes clear and unmistakable 
error; what does not.

* * * * *
    (b) * * *
    (1) * * *
    (2) Special rule for Board decisions on legacy appeals issued on or 
after July 21, 1992. For a Board decision on a legacy appeal as defined 
in Sec.  19.2 of this chapter issued on or after July 21, 1992, the 
record that existed when that decision was made includes relevant 
documents possessed by the Department of Veterans Affairs not later 
than 90 days before such record was transferred to the Board for review 
in reaching that decision, provided that the documents could reasonably 
be expected to be part of the record.
* * * * *


Sec.  20.1404  [Amended]

0
161. Amend Sec.  20.1404(c) by removing ``Director, Office of 
Management, Planning and Analysis (014),''.
0
162. Amend Sec.  20.1405 by:
0
a. In paragraph (a)(1), removing the words ``Sec.  19.3 of this title'' 
and adding in its place the words ``Sec.  20.106'';
0
b. In paragraph (a)(2), removing the words ``Rule 900(c) (Sec.  
20.900(c) of this part)'' and adding in its place the words ``Rule 800, 
paragraph (c) (Sec.  20.800(c)) or, for legacy appeals, Rule 902, 
paragraph (c) (Sec.  20.902(c))'';
0
c. In paragraph (c)(2), removing the words ``Director, Office of 
Management, Planning and Analysis (014),'';
0
d. Removing paragraph (d);
0
e. Redesignating paragraph (e) as paragraph (d);
0
f. Redesignating paragraph (f) as paragraph (e);
0
g. Redesignating paragraph (g) as paragraph (f) and revising the first 
sentence of the newly redesignated paragraph (f) to read as follows:


Sec.  20.1405  Rule 1405. Disposition.

* * * * *
    (f) Decision.The decision of the Board on a motion under this 
subpart will be in writing.
* * * * *
0
163. Amend Sec.  20.1408 by removing the words ``Rule 3(o) (Sec.  
20.3(o) of this part)'' and adding in its place the words ``Rule 3(l) 
(Sec.  20.3(l) of this part)'' from the introductory text.
0
164. Amend Sec.  20.1409(b), by removing the words ``Rule 1405(e)'' and 
adding in its place the words ``Rule 1405, paragraph (d) (Sec.  
20.1405(d) of this part)''.

[[Page 39867]]

0
165. Amend Sec.  20.1411 by revising paragraphs (b) and (d) to read as 
follows:


Sec.  20.1411  Rule 1411. Relationship to other statutes.

    (a) * * *
    (b) For legacy appeals as defined in Sec.  19.2 of this chapter, a 
motion under this subpart is not a claim subject to reopening under 38 
U.S.C. 5108 (prior to the effective date described in Rule 4, paragraph 
(a) (Sec.  20.4(a) of this part) (relating to reopening claims on the 
grounds of new and material evidence).
    (c) * * *
    (d) A motion under this subpart is not a claim for benefits subject 
to the requirements and duties associated with 38 U.S.C. 5103A 
(imposing a duty to assist).

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

Sec.  Sec.  20.1412-20.1499  [Added and Reserved]

0
166. Add and reserve Sec. Sec.  20.1412 through 20.1499.

Subpart P--Expedited Claims Adjudication Initiative--Pilot Program

0
167. Remove and reserve subpart P, consisting of Sec. Sec.  20.1500-
20.1510.
0
168. Remove Appendix A to Part 20--Cross-References.

PART 21--VOCATIONAL REHABILITATION AND EMPLOYMENT

Subpart A--Vocational Rehabilitation and Employment Under 38 U.S.C. 
Chapter 31

0
169. The authority citation for part 21, subpart A, continues to read 
as follows:

    Authority: 38 U.S.C. 501(a), chs. 18, 31, and as noted in 
specific sections.

0
 170. Remove Sec. Sec.  21.59 and 21.98.
0
171. Remove the CROSS REFERENCE from the end of Sec.  21.184.
0
172. Amend Sec.  21.188(b) by removing the words ``Sec.  21.96, or 
Sec.  21.98'' and adding in its place the words ``or Sec.  21.96''.
0
173. Amend Sec.  21.190(b) by removing the words ``Sec.  21.96, or 
Sec.  21.98'' and adding in its place the words ``or Sec.  21.96''.
0
 174. Amend Sec.  21.192(b) by removing the words ``Sec.  21.96, or 
Sec.  21.98'' and adding in its place the words ``or Sec.  21.96''.
0
 175. Amend Sec.  21.194(b) by removing the words ``Sec.  21.94 and 
21.98'' and adding in its place the words ``and Sec.  21.94''.
0
176. Amend Sec.  21.282(c)(4) by removing the words ``21.98'' and 
adding in its place the words ``21.96''.
0
177. Amend Sec.  21.412(a)(2) by removing the words ``(See Sec. Sec.  
19.153, 19.154, and 19.155''.
0
 178. Amend Sec.  21.414 by:
0
 a. In paragraph (e), removing the period following ``Sec.  3.105(e)'' 
and adding in its place a semicolon.
0
 b. Adding a new paragraph (f).
0
 c. Revising the authority citation.
    The revisions and additions read as follows:


Sec.  21.414  Revision of decision.

* * * * *
    (f) Review of decisions, Sec.  21.416.

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


0
179. Add Sec.  21.416 to read as follows:


Sec.  21.416  Review of decisions.

    (a) Applicability. This section applies where notice of a decision 
under this subpart or subpart M of this part was provided to a veteran 
on or after the effective date of the modernized review system as 
provided in Sec.  19.2(a) of this chapter, or where an applicant or 
claimant has elected review of a legacy claim under the modernized 
review system as provided in Sec.  3.2400(c) of this chapter.
    (b) Reviews available. Within one year from the date on which VA 
issues notice of a decision on an issue contained within a claim, a 
veteran may elect one of the following administrative review options:
    (1) Supplemental Claim Review. The nature of this review will 
accord with Sec.  3.2501 of this chapter, except that a complete 
application in writing on a form prescribed by the Secretary will not 
be required and a hearing will not be provided. The Vocational 
Rehabilitation and Employment (VR&E) staff member will inform the 
veteran or his or her decision within 125 days of receipt of the 
supplemental claim.
    (2) Board of Veterans' Appeals Review. See 38 CFR part 20.
    (3) Higher-level Review. Reviews will be conducted by a VR&E 
employee who did not participate in the prior decision and is more 
senior than the employee that made the prior decision currently under 
review. Selection of an employee to conduct a review of the decision is 
at VR&E's discretion. The VR&E staff member will inform the veteran of 
his or her decision within 90 days of receipt of the request for 
higher-level review.
    (i) Evidentiary record. The evidentiary record in a higher-level 
review is limited to the evidence of record at the time VA issued the 
prior decision under review. Except as provided in paragraph (ii) of 
this section, the higher-level adjudicator may not consider, or order 
development of, additional evidence that may be relevant to the issue 
under review.
    (ii) Duty to assist errors. The higher-level adjudicator will 
ensure that VR&E has complied with its statutory duty to assist in 
gathering evidence applicable prior to issuance of the decision being 
reviewed. If the higher-level adjudicator both identifies a duty to 
assist error that existed at the time of VR&E's decision on the claim 
under review, and cannot resolve the issue in the veteran's favor with 
the information at hand, the higher-level adjudicator must return the 
claim to the assigned VR&E case manager (unless that manager is 
unavailable) for correction of the error and readjudication. Upon 
receipt, the VR&E case manager will readjudicate the claim within 30 
days.
    (iii) Informal conferences. A veteran or his or her representative 
may request an informal conference during the higher-level review 
process. For purposes of this section, informal conference means 
contact with a veteran and/or his or her representative telephonically 
or in person, as determined by VR&E, for the sole purpose of allowing 
the veteran or representative to identify any errors of law or fact in 
a prior decision. When requested, VA will make reasonable efforts to 
conduct one informal conference during a review. The higher-level 
adjudicator or designated representative will conduct the informal 
conference and document any arguments of fact or law presented by the 
veteran or his or her representative for inclusion in the record. Any 
expenses incurred by the veteran in connection with the informal 
conference are the responsibility of the veteran.
    (iv) De novo review. The higher-level adjudicator will consider 
only those issues for which the veteran has requested a review, and 
will conduct a de novo review giving no deference to the prior 
decision, except as provided in Sec.  3.104(c) of this chapter.
    (v) Difference of opinion. The higher-level adjudicator may grant a 
benefit sought in the claim based on a difference of opinion (see Sec.  
3.105(b) of this chapter). However, findings favorable to the veteran 
will not be reversed in the absence of clear and convincing evidence to 
the contrary. In addition, the higher-level adjudicator will not revise 
the outcome in a manner that is less advantageous to the veteran based 
solely on a difference of opinion. The higher-level adjudicator may 
reverse or revise (even if disadvantageous to the veteran) prior 
decisions by VR&E (including the decision being reviewed or any prior 
decision) on the grounds of clear and unmistakable error under Sec.  
3.105(a)(1) or (2) of this chapter, as applicable,

[[Page 39868]]

depending on whether the prior decision is finally adjudicated.
    (c) Notice requirements. Notice of a decision made under paragraph 
(b)(1) or (3) of this section will include all of the elements 
described in Sec.  21.420(b).

(Authority: 38 U.S.C. 5104B, 5108, 5109A, and 7105)


0
180. Amend Sec.  21.420 by:
0
 a. Revising paragraphs (b) and (d).
0
 c. Adding new paragraph (e).
0
 d. Revising the authority citation to read as follows:


Sec.  21.420  Informing the veteran.

    (a) * * *
    (b) Notification: Each notification should include the following:
    (1) Identification of the issues adjudicated.
    (2) A summary of the evidence considered by the Secretary.
    (3) A summary of the applicable laws and regulations relevant to 
the decision.
    (4) Identification of findings favorable to the veteran.
    (5) In the case of a denial of a claim, identification of elements 
not satisfied leading to the denial.
    (6) An explanation of how to obtain or access evidence used in 
making the decision.
    (7) A summary of the applicable review options available for the 
veteran to seek further review of the decision.
* * * * *
    (d) Prior notification of adverse action. VA shall give the veteran 
a period of at least 30 days to review, prior to its promulgation, an 
adverse action other than one which arises as a consequence of a change 
in training time or other such alteration in circumstances. During that 
period, the veteran shall be given the opportunity to:
    (1) Meet informally with a representative of VA;
    (2) Review the basis for VA decision, including any relevant 
written documents or material; and
    (3) Submit to VA any material which he or she may have relevant to 
the decision.
    (e) Favorable findings. Any finding favorable to the veteran is 
binding on all subsequent VA and Board of Veterans' Appeals 
adjudicators, unless rebutted by clear and convincing evidence to the 
contrary.

(Authority: 38 U.S.C. 3102, 5104, 5104A, and 7105)


0
181. Amend Sec.  21.430(b) by removing the text ``21.98'' and adding in 
its place the text ``21.96''.

Subpart B--Claims and Applications for Educational Assistance

0
182. The authority citation for part 21, subpart B is revised to read 
as follows:

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


Sec.  21.1033  [Amended]

0
183. Amend Sec.  21.1033(f)(2) by removing the text ``Sec. Sec.  20.302 
and 20.305'' and adding in its place the text ``Sec. Sec.  20.203 and 
20.110''.
0
184. Revise Sec.  21.1034 to read as follows:


Sec.  21.1034  Review of decisions.

    (a) Decisions. A claimant may request a review of a decision on 
eligibility or entitlement to educational assistance under title 38, 
United States Code. A claimant may request review of a decision on 
entitlement to educational assistance under 10 U.S.C. 510, and 10 
U.S.C. chapters 106a, 1606, and 1607. A claimant may not request review 
of a decision on eligibility under 10 U.S.C. 510, and 10 U.S.C. 
chapters 106a, 1606, and 1607 or for supplemental or increased 
educational assistance under 10 U.S.C. 16131(i) or 38 U.S.C. 3015(d), 
3021, or 3316 to VA as the Department of Defense solely determines 
eligibility to supplemental and increased educational assistance under 
these sections.
    (b) Reviews available. Except as provided in paragraph (d) of this 
section, within one year from the date on which the agency of original 
jurisdiction issues notice of a decision described in paragraph (a) of 
this section as subject to a request for review, a claimant may elect 
one of the following administrative review options:
    (1) Supplemental Claim Review. See Sec.  3.2501 of this chapter.
    (2) Higher-level Review. See Sec.  3.2601 of this chapter.
    (3) Board of Veterans' Appeals Review. See 38 CFR part 20.
    (c) Part 3 provisions. See Sec.  3.2500(b)-(d) of this chapter for 
principles that generally apply to a veteran's election of review of a 
decision described in paragraph (a) of this section as subject to a 
request for review.
    (d) Contested claims. See subpart E of part 20 of this title for 
the timeline pertaining to contested claims.
    (e) Applicability. This section applies where notice of a decision 
described in paragraph (a) of this section was provided to a veteran on 
or after the effective date of the modernized review system as provided 
in Sec.  19.2(a) of this chapter, or where a veteran has elected review 
of a legacy claim under the modernized review system as provided in 
Sec.  3.2400(c) of this chapter.

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


0
185. Add Sec.  21.1035 to read as follows:


Sec.  21.1035  Legacy review of benefit claims decisions.

    (a) A claimant who has filed a Notice of Disagreement with a 
decision described in Sec.  21.1034(a) that does not meet the criteria 
of Sec.  21.1034(e) of this chapter has a right to a review under this 
section. The review will be conducted by the Educational Officer of the 
Regional Processing Officer, at VA's discretion. An individual who did 
not participate in the decision being reviewed will conduct this 
review. Only a decision that has not yet become final (by appellate 
decision or failure to timely appeal) may be reviewed. Review under 
this section will encompass only decisions with which the claimant has 
expressed disagreement in the Notice of Disagreement. The reviewer will 
consider all evidence of record and applicable law, and will give no 
deference to the decision being reviewed.
    (b) Unless the claimant has requested review under this section 
with his or her Notice of Disagreement, VA will, upon receipt of the 
Notice of Disagreement, notify the claimant in writing of his or her 
right to a review under this section. To obtain such a review, the 
claimant must request it not later than 60 days after the date VA mails 
the notice. This 60-day time limit may not be extended. If the claimant 
fails to request review under this section not later than 60 days after 
the date VA mails the notice, VA will proceed with the legacy appeal 
process by issuing a Statement of the Case. A claimant may not have 
more than one review under this section of the same decision.
    (c) The reviewer may conduct whatever development he or she 
considers necessary to resolve any disagreements in the Notice of 
Disagreement, consistent with applicable law. This may include an 
attempt to obtain additional evidence or the holding of an informal 
conference with the claimant. Upon the request of the claimant, the 
reviewer will conduct a hearing under the version of Sec.  3.103(c) of 
this chapter predating Public Law 115-55.
    (d) A review decision made under this section will include a 
summary of the evidence, a citation to pertinent laws, a discussion of 
how those laws affect the decision, and a summary of the reasons for 
the decision.
    (e) The reviewer may grant a benefit sought in the claim, 
notwithstanding Sec.  3.105(b) of this chapter. The reviewer may not 
revise the decision in a manner that is less advantageous to the 
claimant

[[Page 39869]]

than the decision under review, except that the reviewer may reverse or 
revise (even if disadvantageous to the claimant) prior decisions of an 
agency of original jurisdiction (including the decision being reviewed 
or any prior decision that has become final due to failure to timely 
appeal) on the grounds of clear and unmistakable error (see Sec.  
3.105(a) of this chapter).
    (f) Review under this section does not limit the appeal rights of a 
claimant. Unless a claimant withdraws his or her Notice of Disagreement 
as a result of this review process, VA will proceed with the legacy 
appeal process by issuing a Statement of the Case.

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

Subpart I--Temporary Program of Vocational Training for Certain New 
Pension Recipients


Sec.  21.6058  [Amended]

0
186. Amend Sec.  21.6058(b) by removing the text ``21.59'' and adding 
in its place the text ``21.416''.


Sec.  21.6080  [Amended]

0
187. Amend Sec.  21.6080 by:
0
 a. In paragraph (a), removing the text ``21.96 and 21.98'' and adding 
its place the text ``and 21.96''.
0
 b. In paragraph (d)(3), removing the text ``21.98'' and adding in its 
place the text ``21.416''.

[FR Doc. 2018-15754 Filed 8-9-18; 8:45 am]
 BILLING CODE 8320-01-P