VA Claims and Appeals Modernization

 
CONTENT
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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
: Final rule.
SUMMARY
: The Department of Veterans
Affairs (VA) amends its claims
adjudication, appeals, and Rules of
Practice of the Board of Veterans’
Appeals (Board) regulations. In
addition, this rule revises VA’s
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
implements the Veterans Appeals
Improvement and Modernization Act of
2017 (AMA), which amended the
procedures applicable to administrative
review and appeal of VA decisions on
claims for benefits, creating a new,
modernized review system. Unless
otherwise specified in this final rule,
VA amends its regulations applicable to
all 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. For the reasons
set forth in the proposed rule and in this
final rule, VA is adopting the proposed
rule as final, with minor changes, as
explained below.
DATES
: This final rule is effective
February 19, 2019.
FOR FURTHER INFORMATION CONTACT
:
Veterans Benefits Administration
information, parts 3, 8, and 21: 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). Regulation of legal
representatives’ information, parts 19
and 20: 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
: On August
10, 2018, VA published in the Federal
Register (83 FR 39818) a proposed rule
to implement Public Law (Pub. L.) 115–
55, the AMA. The AMA and these
implementing regulations provide
much-needed comprehensive reform for
the legacy administrative appeals
process, to help ensure that claimants
receive a timely decision on review
where they disagree with a VA claims
adjudication. The AMA review
procedures and these regulations
replace the current VA appeals process
with a new review process that makes
sense for veterans, their advocates, VA,
and stakeholders.
The statutory requirements, which VA
implements in these regulations,
provide a claimant who is not fully
satisfied with the result of any review
lane additional options 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, the claimant has two further
options. If the Board’s decision helped
the claimant understand the evidence
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. A claimant in this
situation could instead appeal within
120 days of the Board decision to the
Court of Appeals for Veterans Claims
(CAVC) in accordance with CAVC rules
and deadlines. Alternatively, a claimant
could seek review of the initial decision
by filing a supplemental claim or
requesting a higher-level review in the
agency of original jurisdiction, again,
without any impact on the potential
effective date for payment of benefits.
The differentiated lane framework
required by statute and implemented 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, both 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
agency of original jurisdiction.
To ensure that as many claimants as
possible benefit from the streamlined
features of the new process, the AMA
and these regulations provide
opportunities for claimants and
appellants in the legacy system to take
advantage of the new system. Some
claimants who received a decision prior
to the effective date of the law and thus
had a legacy appeal pending, were able
to participate in the new system by way
of VA’s Rapid Appeals Modernization
Program (RAMP). Claimants who
receive a Statement of the Case (SOC) or
Supplemental Statement of the Case
(SSOC) as part of a legacy appeal after
the effective date of the law will also
have an opportunity to opt-in to the new
system.
Most of the regulatory amendments
prescribed in this final rule are
mandatory to comply with the law.
Through careful collaboration with VA,
VSOs, and other stakeholders, in
enacting the AMA, Congress provided a
highly detailed statutory framework for
claims and appeals processing. VA is
unable to alter amendments that directly
implement mandatory statutory
provisions. In addition to implementing
mandatory requirements, VA prescribes
a few interpretive or gap-filling
amendments to the regulations, which
are not specifically mandated by the
AMA, but that VA believes are in line
with the law’s goals to streamline and
modernize the claims and appeals
process. These amendments reduce
unnecessary regulations, modernize
processes, and improve services for
claimants.
Interested persons were invited to
submit comments to the proposed rule
on or before October 9, 2018, and 29
comments were received. Those
comments have been addressed
according to topic in the discussion
below. This final rule contains
amendments to parts 3, 8, 14, 19, 20,
and 21, as described in detail below.
Part 3—Adjudication
VA amends 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 VA monetary
benefits (e.g., compensation, pension,
dependency and indemnity
compensation, and burial benefits),
which are administered by the VBA.
These amendments apply to claims
processed in the modernized review
system as described in § 3.2400.
A. Comments Concerning § 3.1—
Definitions
Public Law 115–55, section 2(a),
defines ‘‘supplemental claim’’ as ‘‘a
claim for benefits under laws
administered by the Secretary filed by a
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claimant who had previously filed a
claim for the same or similar benefits on
the same or similar basis.’’ Although it
is possible to read this language as
implicating both claims filed as a
disagreement with a prior decision, and
claims submitted due to a worsening of
a condition, this dual interpretation
would not be consistent with other
sections of the statute. Namely, Public
Law 115–55 also 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.’’ When both sections are read
together, it becomes clear that the intent
of the law was to make supplemental
claims only applicable to situations
where a claimant disagrees with a
previous VA decision and seeks review
and readjudication. Accordingly, as
noted in VA’s proposed regulation, VA
proposed to clarify in regulation the
definition of supplemental claim. VA
added to the definition of ‘‘claim’’ in
§ 3.1(p) of the proposed rule definitions
of ‘‘supplemental claim,’’ ‘‘initial
claim,’’ and ‘‘claim for increase.’’
VA received six comments regarding
definitions listed in § 3.1(p). Concerns
centered around the definitions of
initial claim (§ 3.1(p)(1)), claim for
increase (§ 3.1(p)(1)(iii)), claim
(§ 3.1(p)(2)), and supplemental claim
(§ 3.1(p)(2)). Several comments
addressed concerns regarding the use of
the term ‘‘written communication’’ in
some definitions while other areas of
the proposed rule referenced ‘‘written or
electronic’’ communication. VA agrees
with the need for clarification regarding
electronic communication and revises
§ 3.1(p) to reflect a claim as both a
written or electronic communication
properly submitted on an application
form prescribed by the Secretary.
Several comments raised concerns
that a claim for increase was included
as a type of initial claim and argued it
is more appropriately considered a
supplemental claim. VA includes claim
for increase in the definition of an
initial claim to clarify to claimants that
a claim for increase is based on a change
or worsening in condition or
circumstance since a prior VA decision
and not based on disagreement with that
decision. Accordingly, VA revises
proposed § 3.1(p)(1)(iii) to reflect a
claim for increase as a change or
worsening in condition or circumstance
since a prior VA decision. One comment
also expressed concern that ‘‘the VA
may sometimes be overbroad in
requiring supplemental claims where a
veteran has not had a decision on a
specific issue or disability previously.’’
VA agrees there may be confusion
regarding the definition of a
supplemental claim and revised
§ 3.2501 to clarify that a supplemental
claim is based upon a disagreement
with a prior VA decision.
VA revises the definition of ‘‘initial
claim’’ in § 3.1(p)(1), to provide clarity
concerning the term ‘‘original claim’’ in
response to comments. Commenters
expressed confusion between the terms
‘‘original’’ and ‘‘initial’’ based on
dictionary definitions, which treat them
interchangeably. VA’s revisions to
§ 3.1(p)(1) explain that an original claim
is the first initial claim.
One commenter expressed a belief
that the terms ‘‘issue’’ and ‘‘claim’’ are
used interchangeably in sections of the
proposed rule but defined differently. It
is clear from § 3.151(c) that the term
‘‘issue’’ refers to a distinct
determination of entitlement to a
benefit, such as a determination of
entitlement to service-connected
disability compensation for a particular
disability. A claim is a request for
review of one or more issues. If a claim
includes only one issue then the terms
may appear to be used interchangeably.
Accordingly, VA revises § 3.1(p) to
include a reference to § 3.151(c), which
defines issues within a claim.
B. Comments Concerning § 3.103—
Procedural Due Process and Other
Rights
VA received eleven comments
regarding procedural due process
concerns as referenced in § 3.103.
Two commenters expressed concern
that the use of the phrase ‘‘when
applicable’’ in § 3.103(b)(1) is too broad
and open to interpretation. VA agrees
that the term is vague and revises
§ 3.103(b)(1) to refer the reader to
subsection (d), which explains the
availability of a hearing.
Another commenter expressed
concern with the removal of language in
§ 3.103(c)(2) regarding visual
examinations during hearings. These
types of visual examinations are
obsolete as veterans and VA can now
utilize several other methods to add
visual examination findings into the
record. Claimants may use Disability
Benefits Questionnaires (DBQs) that any
physician may complete to document
visual findings. VA may also assist
claimants through the scheduling of
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. Accordingly, VA
does not make any changes to
§ 3.103(c)(2) based upon the comment.
Several comments raised concerns
regarding § 3.103(c)(2), Treatment of
evidence received after notice of a
decision. The concerns centered around
the desire for VA to notify claimants in
writing each time VA does not consider
evidence received after notice of a
decision, when the record is closed. The
commenters are correct that VA does
not intend to notify a claimant every
time the claimant submits evidence
during a period when the record is
closed. Rather, the initial notice of
decision provided to the claimant will
explain the review options, the
associated evidentiary rules, and the
procedures to follow to obtain VA
consideration of new evidence. In
addition, VA will, in accordance with
the AMA and § 3.103(f), provide
information to the claimant in the initial
decision as to evidence that was
considered, and any subsequent review
decision, based on a closed record, will
inform the claimant generally if VA
received evidence that was not
considered. Finally, decision notices
will provide to claimants instructions
for how to obtain or access the actual
evidence used in making the decision
(the complete record on which the
decision was based).
VA takes seriously its obligation to
administer its process in a claimant-
friendly way, and accordingly provides
multiple means for claimants to obtain
information on what evidence VA has
received and the date of receipt to
determine if it was submitted when the
evidentiary record was open or closed.
Most fundamentally, claimants are able
to request a copy of their own claims
files. Additionally, accredited
representatives are eligible to receive
access to the Veterans Benefits
Management System, which enables
them to see what is in the file at any
time. And a claimant can visit the VBA
Regional Office to view their claims file
in a reading room.
Accordingly, to the extent a claimant
is unsure whether a given piece of
evidence was considered the claimant
can check the review decision to see
whether it indicates whether there was
any evidence that was not considered. If
so, the claimant can check the summary
of evidence in the initial decision
notice. VA expects this to resolve the
matter in most instances. However, to
the extent that the claimant needs
access to the entire record on which a
decision is based, the decision notice
will describe that procedure. Finally,
whenever the claimant is uncertain, the
claimant can submit the evidence in
question again as part of a supplemental
claim. If this is done within one year,
there will be no loss of effective date. If
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the evidence was not considered in the
prior claim and is relevant, it would be
considered in adjudicating the
supplemental claim. (As explained in
the proposed rule, even if the claimant
did not submit with the supplemental
claim relevant evidence previously
submitted out of time, VA would be
obligated to consider it.) The law does
not require VA to list evidence not
considered because it was received after
notice of a decision, or during some
other period when the evidentiary
record was closed. Before the AMA, 38
U.S.C. 5104 required VA to provide
certain information only in cases where
VA denied a benefit sought: (1) A
statement of reasons for the decision;
and (2) a summary of the evidence
considered by the Secretary. 38 U.S.C.
5104(b) (2016). In the AMA, Congress
directly addressed the information
requirements for decision notices in a
high level of detail. All decision notices,
regardless of whether or not they deny
a benefit sought, must now include
seven specified data elements. 38 U.S.C.
5104(b)(1)–(7). This includes ‘‘a
summary of the evidence considered by
the Secretary[.]’’ 38 U.S.C. 5104(b)(2).
This extensive list of required data
elements does not include identification
of evidence not considered. It is clear
that Congress directly considered the
requirements for decision notices,
altered the applicable legal
requirements in ways generally
favorable to claimants, and declined to
add a requirement to identify and
discuss evidence not considered.
Beyond the fact that the law does not
require VA to provide notice of
evidence not considered, VA declines to
discretionarily impose such a
requirement through regulation. From
VA’s perspective, the closing of the
evidentiary record is one of the
foundational features of the AMA, and
one of its most valuable in terms of
enabling VA, over time, to process
claims and appeals more efficiently.
Requiring VA to notify claimants each
time evidence is submitted out of time
or list or summarize such evidence
individually in review decisions would
dilute much of the administrative value
of having a closed record following the
initial decision. Providing this notice
would require VA personnel to review
and identify or summarize (if, for
example, the evidence is not dated) late-
flowing evidence when preparing the
decision notice. Such a procedure
would unavoidably require ‘‘by hand’’
review and processing of evidence by
VBA adjudicators, similar to the review
required for simply considering the
evidence for decisional purposes. In this
scenario, VA would be spending its
limited adjudicative resources reading
and processing documents that are not
part of the record and cannot be the
basis for a decision.
Apart from the work of reading and
summarizing extra-record evidence,
imposing this requirement would also
carry a significant cost in terms of
generating procedural complexity. A
regulatory requirement that VA identify
or summarize certain evidence would,
of necessity, need to be enforceable on
appeal in order to be meaningful. (Such
a notice requirement would technically
be distinct from the argument on appeal
that certain evidence was excluded from
the record in error, which is an
appellate argument that is certainly
possible under this final rule.)
Accordingly, the argument that VA
failed to provide legally adequate notice
or description of what evidence was not
considered would become a feature of
the appellate system. This would be
problematic for two reasons. First, it
invites appellate activity centered on
procedure rather than the substance of
veterans’ claims. Second, and worse, it
creates the specter of argument over the
proper discussion of non-record
evidence. Evidence that is nominally
not part of the record of the decision on
appeal would necessarily become
central to such an appellate argument.
At that point, the evidence would, for
all intents and purposes, be part of the
record, even though the premise of the
argument would necessarily be that the
evidence was validly excluded.
We acknowledge that proposed
§ 20.801(b)(3), which we here confirm as
final, will require the Board to provide
‘‘[a] general statement’’ that evidence
received while the record was closed
was not considered. This provision,
governing Board practice, is consonant
with VA’s decision not to impose a
requirement on VBA to list or
summarize untimely evidence. This
provision is necessary to comply with
38 U.S.C. 7104(d)(2), which is specific
to Board decisions. That provision only
requires a broad statement that untimely
evidence was received and not
considered, rather than any meaningful
engagement with that evidence, such as
a listing or summary.
VA recognizes that some individual
claimants might prefer that VA either
provide notification each time it
receives evidence submitted out of time
or list such evidence specifically in
decision notices. However, in balancing
efficiency considerations in line with
the expressed goal of Congress to reduce
VA backlogs and processing times, VA
has chosen the alternative procedures
discussed above to provide claimants
with information they need to
effectively prosecute their claims
without prejudice to their ability to have
all relevant evidence considered prior to
a final adjudication. Accordingly, VA
does not make any changes to
§ 3.103(c)(2) based upon these
comments. As the precise procedures
for providing such notice may change
based on technological systems, as well
as other resources, VA will continue to
address this matter through internal
procedural guidance consistent with the
law and regulations.
Multiple commenters recommended
that additional information be included
in decision notices beyond what is
required in § 3.103(f). Suggestions
include the compensation rating
decision codesheet, information on
expected improvement in disability, and
full identification of specific evidence
not considered (which we discuss
above). Current VA procedures require
the inclusion of any expected
reexaminations due to expected
improvement or worsening of a
disability consistent with current
§ 3.327 and, in many instances, allow
for the inclusion of the codesheet with
compensation rating decision notices.
VA has a requirement under
§ 3.103(f)(7) to explain how to obtain or
access evidence used in making the
decision. One method authorized
representatives may use to access
evidence is to request access to the
claimant’s electronic claims folder.
Accordingly, VA does not make any
changes to § 3.103(f) based upon these
comments.
A commenter noted that the ‘‘new
§ 3.103 does not require VA to describe
evidence in its possession that it did not
review’’, raising a hypothetical situation
in which a claimant was treated for
conditions at a VA facility the day prior
to the decision being rendered on their
higher-level review. This is a
constructive receipt argument that VA
was in possession of the records from
the day prior and therefore cannot
appropriately adjudicate a higher-level
review without those records, while at
the same time arguing this is not ‘‘new
evidence’’ used in support of a
supplemental claim because the records
were in general custody of VA at the
time.
VA makes minor adjustments to the
rule as proposed to clarify the
parameters in this area. 38 CFR
3.103(c)(2), Treatment of evidence
received after notice of a decision, now
clearly explains what may be included
in the record for adjudication. It states,
‘‘The evidentiary record for a claim
before the agency of original jurisdiction
closes when VA issues notice of a
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decision on the claim. The agency of
original jurisdiction will not consider,
or take any other action on evidence
submitted by a claimant, associated
with the claims file, or constructively
received by VA as described in
§ 3.103(c)(2)(iii), 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’’ in two
specific circumstances relating to the
submission of a supplemental or initial
claim or identification of a duty to assist
error.
Additionally, § 3.103(f)(2) identifies
the requirement to provide a summary
of the evidence considered in
notification of decisions. This provides
the claimant a clear understanding of
what was considered and is consistent
with the definitions of evidence
reviewable under a higher-level review
or supplemental claim. Under these
definitions, the evidence raised in the
hypothetical situation would be
considered new evidence available to be
used by the claimant in a supplemental
claim. To the extent the commenter
means that evidence created by VA
shortly before the record closes but not
associated with the claims record or
identified to adjudicators in any way
should be treated as constructively part
of the record pursuant to Bell v.
Derwinski, 2 Vet. App. 611 (1992), we
note that documents created while the
record is closed do not become part of
the record by virtue of the doctrine of
constructive receipt. At the same time,
if a document created while the record
was open is identified on direct appeal
as having been constructively received
at a time when the record was open
(e.g., the Board or a higher-level
reviewer become aware of a document
within the scope of Bell), the record can
be corrected, including in similar
fashion to a duty to assist error.
However, in order for a Bell error to
cause the record to be augmented in this
way, the document in question must
actually satisfy the law of constructive
receipt in the VA context. Case law
construing Bell makes clear that the
mere existence of a record is not
sufficient to establish constructive
receipt for adjudicative purposes.
Rather, VBA adjudicators must have
sufficient indication that a given record
exists and sufficient information to
locate it, even though they do not have
actual custody of it, in order to trigger
the doctrine of constructive receipt in
the VA claims adjudication context. See
Turner v. Shulkin, 29 Vet. App. 207,
217–219 (2018). We have explicitly
incorporated this concept into the final
rule at 38 CFR 3.103(c)(2)(iii). In terms
of the level of VBA awareness necessary
to trigger Bell in this context, we import
a familiar standard from the duty to
assist context, which is referenced in
Turner. Turner noted that 38 U.S.C.
5103A(c)(1)(B) requires VA to obtain
records of relevant medical treatment or
examination of the claimant at VA
health care facilities or at VA expense,
‘‘if the claimant furnishes information
sufficient to locate those records.’’
Turner, 29 Vet. App. at 218. There is no
reason why the doctrine of constructive
receipt should be broader than VA’s
duty to obtain records for the claim.
While the duty to assist does not apply
following the closure of the record, it
does apply during the initial claim
process when any document that could
be the basis of a constructive receipt
issue would have to be created.
Accordingly, we provide in
§ 3.103(c)(2)(iii) that VBA must have
had knowledge of the document in
question ‘‘through information
furnished by the claimant sufficient to
locate those records.’’ Further, we note
that to the extent a document
potentially within the scope of that
provision is discovered after a claim
stream has lapsed, the fact that a
document was arguably constructively
part of the record before adjudicators in
the prior decision would not preclude
that document as the basis for a
supplemental claim if it was not, in fact,
considered. A Bell error on the part of
VA is not a basis to deprive the veteran
of his or her right to file a supplemental
claim. Accordingly, Bell and the
ongoing creation of medical treatment
records is not a mechanism for
preventing the adjudicative record from
closing to the extent the law permits
and requires it to do so, but at the same
time, does not preclude the filing of
supplemental claims. These definitions
provide a clearer delineation of what is
and is not part of the evidentiary record
of a particular claim, as compared to the
continuous open record of the legacy
system. Further, through the decision
notice on the initial claim, the claimant
is provided a summary of pertinent
evidence that was developed as part of
VA’s duty to assist. When submitting a
request for ahigher-level review, the
claimant has notice that the evidentiary
record will consist of the same
information identified in the initial
claim decision. Any additional evidence
the claimant wishes to be considered
would warrant their submission of a
supplemental claim request.
C. Comments Concerning § 3.104—
Binding Nature of Decisions
VA received eight comments
regarding the binding nature of
favorable findings. The AMA 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. These comments
expressed concern over the lack of
definition of ‘‘clear and convincing,’’ as
well as the evidentiary standard
specified in the law being a lower
evidentiary standard than currently
exists and less favorable to claimants.
The CAVC in Fagan v. West, 13 Vet.
App. 48, 55 (1999), clarified that the
‘‘clear and convincing’’ evidentiary
standard of proof is an intermediate
standard between preponderance of the
evidence and beyond a reasonable
doubt. VA notes that the clear and
convincing evidence standard is a lesser
standard than that required for a
Veteran or claimant to correct a VA
error that was not in their favor, which
requires evidence of a clear and
unmistakable error (CUE) (see 38 U.S.C.
5109A(a) and 7111(a)). While 38 U.S.C.
5104A states that VA must meet a ‘‘clear
and convincing’’ evidentiary standard
prior to overturning a favorable finding,
nothing in the statute prohibits VA from
administratively adopting a higher
evidentiary standard to protect favorable
findings on a claimant’s behalf.
VA agrees with the commenters, as a
matter of policy, regarding the wisdom
of setting a higher standard applicable
to overturning favorable findings as it is
claimant-friendly and will reduce the
number of cases where claimants feel
VA is adopting an adversarial approach
to their claim because VA has
overturned a favorable finding.
Accordingly, VA revises § 3.104(c) to
require clear and unmistakable evidence
to rebut a favorable finding. The clear
and unmistakable standard applicable to
rebuttal is similar to the definition of
CUE found in § 3.105(a)(1)(i) and 38
CFR 20.1403(a) that applies to finally
adjudicated issues. However,
application of the clear and
unmistakable standard for rebuttal of a
favorable finding is legally distinct
because, for instance, it is limited to the
scope of the favorable finding itself and
does not require a further determination
that the outcome of the benefit
adjudication would undebatably
change. The clear and unmistakable
rebuttal standard may be satisfied by a
finding that the evidentiary record as a
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whole completely lacks any plausible
support for the favorable finding.
VA discussed in the proposed rule
that no changes are necessary to
§ 3.105(c) through (h), which govern
severance of service connection and
reduction in evaluations, and that the
standards and procedures set forth in
those paragraphs will continue to apply
without change. VA received no
comments on this issue, and VA’s
position in this regard has not changed
as a result of the choice in the final rule
to apply the higher CUE standard to
rebuttal of favorable findings.
D. Comments Concerning § 3.105—
Revision of Decisions
Two comments expressed concern
with the language in proposed
§ 3.105(a)(1)(iv), entitled Change in
interpretation, providing that a 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. As
explained in the preamble to the
proposed rule, this revision to § 3.105(a)
is for the purpose of conforming the
regulations applicable to CUE in finally
adjudicated decisions of the agency of
original jurisdiction with existing
regulations applicable to CUE in finally
adjudicated Board decisions.
Accordingly, § 3.105(a)(1)(iv) tracks the
language in existing 38 CFR 20.1403(e).
VA does not agree with the
commenters’ assertion that these
provisions are contrary to established
caselaw. The Federal Circuit explicitly
rejected the premise of retroactive
application of judicial interpretations of
law in the CUE context in Jordan v.
Nicholson, 401 F.3d 1296 (Fed. Cir.
2005), and Disabled Am. Veterans
(DAV) v. Gober, 234 F.3d 682, 698 (Fed.
Cir. 2000). In DAV, the Federal Circuit
specifically upheld 38 CFR 20.1403(e).
Id. In Jordan, the court explained that
‘‘[t]he Supreme Court has repeatedly
denied attempts to reopen final
decisions in the face of new judicial
pronouncements or decisions.’’ Jordan,
401 F.3d at 1299; see Reynoldsville
Casket Co. v. Hyde, 514 U.S. 749, 758
(1995) (‘‘New legal principles, even
when applied retroactively, do not
apply to cases already closed.’’).
VA does not agree with the argument
by commenters that these cases were
overruled by Patrick v. Shinseki, 668
F.3d 1325 (Fed. Cir. 2011), which was
a decision regarding whether a prior
position of the government was
substantially justified in assessing
whether an award of attorney fees was
due. Further, to the extent there is any
irreconcilable tension between DAV and
Jordan on the one hand and Patrick on
the other, it is well-established that the
earlier decisions control for precedential
purposes. Newell Companies, Inc. v.
Kenney Mfg. Co., 864 F.2d 757, 765
(Fed. Cir. 1988) (‘‘Where there is a direct
conflict the precedential decision is the
first.’’). Similarly, it is not possible for
one panel of the Federal Circuit Court
to have directly overruled a prior panel.
Sacco v. Dep’t of Justice, 317 F.3d 1384,
1386 (Fed. Cir. 2003) (‘‘[a] panel of [the
Federal Circuit] is bound by prior
precedential decisions unless and until
overturned en banc.’’). VA therefore
makes no change to the regulation based
on the comments.
One of these commenters
recommends the creation of a form
specifically for use in applying for
review of a CUE. VA agrees there is
merit in this recommendation, will
review possible options, and may
decide to implement a form for this
specific use, consistent with the
Paperwork Reduction Act. However, the
current process for claiming and
contesting a CUE should be followed in
the absence of such a form. Should VA
determine such a form is not necessary,
the current process will remain in place.
E. Comments Concerning § 3.151—
Claims for Disability Benefits
The AMA added 38 U.S.C. 5104C,
which outlines the available review
options following a decision by the
agency of original jurisdiction. VA
proposed to add § 3.2500 and revise
§ 3.151 consistent with the statute to
provide that a claimant may request one
of the three review options under
§ 3.2500 (higher-level review,
supplemental claim, or appeal to the
Board) for each issue decided by VA,
consistent with 38 U.S.C. 5104C. A
claimant would not be limited to
choosing the same review option for
each issue for a decision that
adjudicated multiple issues.
One commenter believed that the
terms ‘‘issue’’ and ‘‘claim’’ are used
interchangeably in sections of the
proposed rule but defined differently. It
is clear from § 3.151(c) that the term
‘‘issue’’ refers to a distinct
determination of entitlement to a
benefit, such as a determination of
entitlement to service-connected
disability compensation for a particular
disability. A ‘‘claim’’ is a request for
review of one or more issues. If a claim
includes only one issue then the terms
may appear to be used interchangeably.
VA agrees with the commenter’s
suggestion that clarification is necessary
and revised § 3.1(p) to include a
reference to § 3.151(c), which defines
issues within a claim.
F. Comments Concerning § 3.155—How
To File a Claim
While the AMA does not specifically
address how to file a claim, or the
concept of intent to file as it relates to
supplemental claims, it is necessary for
VA to create a framework for this
process. Currently, 38 U.S.C. 501(a) and
5104C(a)(2)(D) place the authority to
develop policy in this area on the
Secretary.
One comment expressed concern that
§ 3.155(b), Intent to file, does not apply
to supplemental claims and
recommends recision of this limitation.
However, 38 U.S.C. 5110 of the new
statutory framework provides that a
claimant can maintain the potential
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 with which the claimant
disagrees. Consistent with this
requirement, the intent to file provisions
of § 3.155(b) do not apply to
supplemental claims because the statute
prescribes a one-year filing period in
order to protect the effective date for
payment of benefits. The commenters
recommendation would allow for the
submission of a supplemental claim
beyond the one-year period. For these
reasons, VA will not make any changes
to § 3.155 based on the commenter’s
recommendation.
G. Comments Concerning § 3.156—New
Evidence
One commenter expressed concern
with the definition of new evidence
meaning evidence not yet ‘‘submitted
to’’ VA and recommended clarification
that new evidence is evidence not yet
‘‘considered by’’ VA. The commenter
suggested this change to ensure that
evidence qualifies as ‘‘new’’ for
purposes of a supplemental claim,
where that evidence was associated
with the claims file when the record
was closed and therefore was not
previously considered by a VA
adjudicator. VA agrees that clarification
along these lines is necessary but has
revised the regulatory language in
different manner. Instead of the change
recommended by the commentator, VA
has replaced ‘‘not previously submitted
to agency adjudicators’’ in the definition
of new evidence with ‘‘not previously
part of the actual record before agency
adjudicators.’’ This change will
accomplish the same goal, with the
additional benefit, through use of the
phrase ‘‘actual record,’’ of clarifying that
new evidence may include evidence
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deemed constructively received as of a
date falling within a period when the
record was open, if that evidence had
never been part of the record on which
a prior adjudication of the issue in
question was based.
Other commenters disagreed with the
change in title for § 3.156(b), from
‘‘Pending claim’’ to ‘‘Pending legacy
claims not under the modernized review
system,’’ resulting in the non-
applicability of current § 3.156(b) in the
modernized system. The commenter
asserted that VA had not provided a
sufficient explanation for this choice.
Section 3.156(b) provides generally
that new and material evidence received
while a claim is pending before VA
must be considered as filed in
connection with the pending claim,
including evidence received after an
initial decision is rendered and during
the period available to file an appeal.
One practical effect of this provision is
that qualifying evidence received during
the appeal period automatically requires
VA to readjudicate the claim and issue
a new decision. Such a requirement
would be inconsistent with the structure
of the new system. First, new 38 U.S.C.
5104B(d) and revised 38 U.S.C. 7113
mandate specific periods when the
record is closed to new evidence,
including during the period following
an initial VA decision. Second, new 38
U.S.C. 5104C and revised 38 U.S.C.
5108 require a claimant who seeks VA
readjudication based on new and
relevant evidence to either file a
supplemental claim with the agency of
original jurisdiction or file a Notice of
Disagreement and select a Board docket
allowing the submission of new
evidence. Defining and limiting the
avenues available to a claimant for
submission of new evidence during the
claim stream is a primary feature of the
AMA, which was designed, in part, to
‘‘streamline VA’s appeal process’’ and
‘‘help ensure that the process is both
timely and fair.’’ H. Rep. No. 115–135 at
5 (2017). Third, new 38 U.S.C. 5104C
provides claimants with a choice of
review options following receipt of an
adverse initial VA decision—file for a
higher-level review within the Veterans
Benefits Administration (VBA), file a
supplemental claim with new and
relevant evidence for readjudication by
the VBA, or file a notice of appeal to the
Board. If VA were to automatically place
the claim on a track for readjudication
by the VBA upon receipt of new
evidence, that action would effectively
preempt the claimant’s choice.
Therefore, because § 3.156(b) requires
automatic readjudication upon the
receipt of new evidence during the one-
year appeal period, it is clearly
inconsistent with the statutory design of
the new system. Nevertheless, excluding
§ 3.156(b) from the regulations
governing new system claims does not
adversely impact a claimant’s right to
obtain a VA readjudication on new and
relevant evidence. It simply means that
claimants must submit such evidence
though the channels established by the
AMA. Furthermore, automatic
readjudication of claims is not
mandated by 38 U.S.C. 5103, even
though the implementing regulation for
that provision, § 3.159(b), provides for
automatic readjudication of legacy
claims upon VA receipt during the
appeal period of new evidence
substantiating the claim. 38 U.S.C.
5103(a)(1) requires VA to provide
claimants, prior to an initial decision,
with notice of information and evidence
necessary to substantiate a claim.
Section 5103(b)(1) requires the claimant
to provide such evidence within one
year of the date of the notice, but states
in paragraph (b)(3) that VA is not
prohibited from making the initial
decision on a claim prior to the
expiration of the one year. Consistent
with these provisions, VA’s
implementing regulations for legacy
claims provide that if a claimant does
not respond to the notice within 30
days, VA may decide the claim prior to
the expiration of the one-year period.
See 38 CFR 3.159(b)(1). If VA does so
and the claimant subsequently provides
information or evidence substantiating
the claim before the end of the one-year
period, the regulations provide that ‘‘VA
must readjudicate the claim.’’ Id.
However, the regulatory procedure of
automatically readjudicating the claim
in these circumstances was not required
by section 5103. Rather, when the key
features of current 38 U.S.C. 5103 were
enacted in 2000 and 2003 (in the
Veterans Claims Assistance Act of 2000
(VCAA) and the Veterans Benefts
Improvement Act of 2003 (VBIA of
2003), VA had a long-standing practice,
as set forth in § 3.156(b), of
automatically readjudicating a claim
upon the receipt of additional evidence
from a claimant—not just within the
year following issuance of the 5103(a)
notice, but within the longer one-year
period beginning with the issuance of
the initial decision. Following
enactment of the VCAA, VA indicated
that it would simply chose to maintain
this practice. 66 FR 45,620, 45623 (Aug.
29, 2001) (final rule). VA viewed the
essence of 5103(b) not as requiring
automatic readjudication, but as
‘‘essentially an effective date provision
governing the earliest date from which
benefits may be paid if a claimant
submits requested information and
evidence.’’ Id.
VA recognized that the longer period
for submission of new evidence
provided in § 3.156(b) might be in
tension with the bar to awarding
benefits in section 5103(b)(1) where
supporting evidence was not received
within a year of the VA notice, id., but
that bar was removed in the VBIA of
2003 and Congress substituted the
requirement that the substantiating
evidence ‘‘must be received by the
Secretary within one year of the notice
date.’’ 149 Cong Rec H 11,705, (Nov. 20,
2003). At the same time, Congress added
section 5103(b)(3), providing that VA is
not prohibited from adjudicating a claim
prior to the expiration of the one-year
period following section 5103 notice.
Congress explained, consistent with the
view that section 5103(b) was
essentially an effective date preservation
provision, that the statutory changes
were designed to promote the
streamlined adjudication of claims,
while ensuring that claimants had two
essential rights: (1) The opportunity,
following an initial decision, to submit
substantiating information or evidence
for VA readjudication within the one-
year period, and (2) in such cases,
maintenance of the effective date
associated with the filing of the claim.
108 S. Rpt. 169 at 15 (‘‘In such cases, the
one-year time period would still enable
a claimant to submit the requested
information or evidence and if benefits
are granted on readjudication, assign an
effective date of award as if VA had not
made the initial decision.’’); see also 149
Cong Rec H 11,705, 11,720 (Nov. 20,
2003) (Explanatory Statement of the
House and Senate Committees,
indicating that the House accepted the
provisions from the Senate Bill in this
regard).
The new system under the AMA
affords claimants these essential rights,
as claimants are entitled to a VA
readjudication based on new and
relevant evidence submitted within the
one-year appeal period, while their
effective date is protected. Rather than
providing for an automatic
readjudication, however, claimants
must submit the new evidence in
connection with a choice of review
options. The claimant may file either a
supplemental claim pursuant to
§ 3.2501 or a Notice of Disagreement
with the Board indicating selection of a
docket allowing for the submission of
additional evidence. If either filing is
completed within the one-year period
under the AMA to maintain continuous
pursuit of the claim (generally one year
from the date of issuance of the initial
decision), the claimant will not lose the
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effective date associated with the filing
of the claim. The availability of
readjudication based on new evidence
under the AMA therefore fulfils the
essential purpose of section 5103(b) as
an effective date provision governing
the earliest date from which benefits
may be paid if a claimant submits
requested information and evidence
following an initial adjudication.
Nothing in 38 U.S.C. 5103 or caselaw
interpreting it requires VA to
automatically readjudicate a claim or
precludes orderly procedural
requirements for the submission of new
evidence following an initial decision.
Similarly, there is no indication in the
relevant legislative history that Congress
understood itself to be creating such a
requirement. Therefore, the AMA is not
inconsistent with section 5103(b) and
section 5103 does not require VA to
create a special exception to the claim
processing rules set forth in the new
law.
To the extent that section 5103(b)
could be viewed as potentially
conflicting with the AMA by providing
an unrestricted right to submit evidence
and receive readjudication for up to one
year following the VCAA notice,
notwithstanding the timing of any
intervening VA decision, it would be
VA’s duty to resolve the conflict for
operational purposes. Therefore,
regardless of whether one adopts the
view that section 5103(b) provides such
a right, VA interprets section 5103(b)
and the AMA together to provide that
evidence may be submitted in the one-
year period established by section
5103(b), including following a VA
decision, but must be submitted through
the channels provided in the AMA
when VA has issued an initial decision.
VA believes that allowing submission of
new evidence only through the channels
provided in the AMA gives the
maximum possible effect to both
statutory provisions bearing on the issue
and safeguards a claimant’s essential
statutory rights. Further, as a matter of
policy, creating a year-long exception to
the structure of the AMA would
introduce complexity and confusion to
the new claims processing rules, both
for VA adjudicators and claimants, and
would substantially undermine the goal
of the AMA to streamline the VA
appeals system and allow VA to resolve
appeals more quickly.
Consistent with this discussion, VA
eliminates § 3.156(b) for modernized
system claims and makes conforming
amendments to § 3.159, as discussed
below, to require that new and relevant
evidence, to the extent that it is
submitted following a VA decision but
within the year established in section
5103(b), must be submitted to VA
through the channels established by the
new law.
H. Comments Concerning § 3.159—
Department of Veterans Affairs
Assistance in Developing Claims
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
38 U.S.C 5103A(f), as amended by the
AMA.
One commenter is concerned with the
term ‘‘potentially new evidence’’ as
used in §§ 3.159(a)(3)(vii) and in
3.160(a)(6). In this context, ‘‘potentially
new evidence’’ references evidence that
may be new and relevant to the claim,
thereby providing some potential basis
for a supplemental claim. As
adjudicated in the supplemental claim
process, evidence submitted or
identified by a claimant may be found
to be duplicative, not relevant, or
otherwise not new. If this is the case,
the adjudicator then must issue a
decision indicating that there is not
sufficient evidence to readjudicate the
claim. If the evidence is found to be new
and relevant, the claim must be
readjudicated. This identification of
‘‘potentially new evidence’’ is
consistent with § 3.2501. For the above
reasons, VA make no changes to § 3.159
based upon the comment.
However, VA is making technical
amendments to § 3.159 in the final rule
necessary to conform with the
procedural requirements of the AMA.
Specifically, paragraph (b)(4) is added
and paragraph (b)(1) is amended to
clarify, consistent with new section
5104C, that submission of new evidence
following an initial VA decision must be
accomplished either by filing a
supplemental claim on a form
prescribed by the Secretary or by filing
a Notice of Disagreement with the Board
on a form prescribed by the Secretary
and selecting a review option allowing
for the submission of new evidence. As
explained above in the prior section, VA
views these amendments as consistent
with section 5103.
I. Comments Concerning § 3.160—
Status of Claims
While the AMA does not specifically
address status of claims, the law did,
however, replace ‘‘a claim for reopening
a prior decision on a claim, or a claim
for increase of benefits’’ with
‘‘supplemental claim’’ in section
5103(a). Further, section 5104C(a)(2)(D)
places the authority to develop policy in
this area on the Secretary.
Claimants may request review of VA’s
decision by submitting a supplemental
claim after a decision by the agency of
original jurisdiction, the Board, or the
CAVC. VA proposed revising § 3.160(e)
to reflect the requirement that as of the
applicability date of the new law, VA
will no longer accept requests to
‘‘reopen’’ claims and a claimant must
file a supplemental claim under
§ 3.2501 to seek review of a finally
adjudicated claim for a previously
disallowed benefit.
One commenter contends that those
who have filed their claims in the legacy
system have the right to have those
claims adjudicated in the legacy system
and VA cannot force them into the
modernized system outside of the
statutorily prescribed opt-in periods
citing that the courts have held a
claimant has the right to demand the
benefit of the laws in existence at the
time the claim was filed and any new
laws that come into existence during
that claim’s pendency that are more
favorable to the claimant, absent a
specific indication that the change in
law was intended to be retroactive. VA
agrees with the commenter in part;
however, VA did not propose to apply
a new law that is less advantageous to
the claimant. By requiring the filing of
a supplemental claim, VA will no longer
require claimants to identify new and
material evidence to reopen a finally
adjudicated claim. VA will now allow
the submission of evidence that is ‘‘new
and relevant’’, which Congress has
indicated is a lesser standard and
reduces the claimant’s burden. In
addition, this change in filing
requirement does not change VA’s
review of the claim and application of
the laws in effect at the time the claim
was originally decided when
readjudicating the claim. What VA
intends, by allowing claimants with
legacy claims to file under the
supplemental claim framework, is to
reduce claimants’ filing burden while
still maintaining all requirements for
review of the decision based on all
applicable laws and regulations whether
in existence at the time of prior decision
or now. For these reasons, no changes
are made based on this comment.
J. Comments Concerning § 3.328—
Independent Medical Opinions
The AMA repealed 38 U.S.C. 7109,
which authorized the Board to obtain
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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
the AMA, the Board will, when deemed
necessary, direct the agency of original
jurisdiction to obtain an IMO. VA
proposed to amend § 3.328 to include a
requirement that VBA process IMO
instructions received from the Board.
One commenter requested
clarification on the definition of
‘‘director of the Service’’ in § 3.328(c).
Previous language referenced approval
to be ‘‘granted only upon a
determination by the Compensation
Service or the Pension and Fiduciary
Service’’. The change to ‘‘director of the
Service’’ in § 3.328(c)(1)(i) is necessary
because the modernized system affects
all VA administrations and is not
limited to the Veterans Benefits
Administration’s Compensation Service
and Pension and Fiduciary Service. To
address the commenter’s concern, VA is
adding language to clarify the meaning
of ‘‘director of the Service’’.
Another commenter requested clarity
on the use of the word ‘‘obscurity’’ and
the phrase ‘‘such controversy in the
medical community at large’’ in
proposed § 3.328(c)(1)(i) and
recommended a revision to reflect the
language of the statute. VA agrees that
the regulation should track the language
of the statute and revised § 3.328(c)(1)(i)
accordingly.
K. Comments Concerning § 3.2400—
Applicability of Modernized Review
System
The AMA provides direction on the
applicability of the modernized review
system. Accordingly, § 3.2400 defines
which claims are processed under the
modernized review system and which
clams are processed under the legacy
appeals system. § 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 CUE.
One commenter interpreted proposed
§ 3.2400, specifically the provision
proscribing supplemental claims based
upon CUE, as somehow limiting CUE
claims generally. However, § 3.2400
clarifies that the new review system will
generally apply to initial decisions
issued on or after the effective date of
this final rule, to include decisions
denying requests to revise a decision by
the agency of original jurisdiction based
upon CUE. Although such requests are
not ‘‘claims’’ subject to the AMA
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), it is VA’s policy to allow the
requestor to elect review of such
decisions in the higher-level review lane
or through an appeal to the Board.
Revision of a decision based upon CUE
cannot be requested in a supplemental
claim because CUE must be based upon
the facts and law that existed at the time
of the prior decision, not new and
relevant evidence. For these reasons, VA
does not make any changes based upon
the comment.
Another comment expressed concern
that character of discharge
determinations are not expressly
addressed in § 3.2400. While character
of discharge determinations could be
reviewed under the modernized review
process, the AMA does not specifically
implicate or change any existing law
regarding character of discharge
determinations. Accordingly, no
changes are made based on this
comment.
L. Comments Concerning § 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. The new system created by the
AMA allows claimants to choose from
several different review options.
Congress added 38 U.S.C. 5104C to
provide claimants with streamlined,
early resolution options within the
agency of original jurisdiction or in an
appeal directly to the Board. VA
proposed to add § 3.2500 to implement
the new decision review options and set
forth the rules that apply to those
options under section 5104C. In line
with the statutory requirements, VA
proposed 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 § 3.2500(b), a claimant will be
able to elect a different review option
for each issue adjudicated in the
decision. It is clear from § 3.151(c) that
the term ‘‘issue’’ refers to a distinct
determination of entitlement to a
benefit, such as a determination of
entitlement to service-connected
disability compensation for a particular
disability. An ‘‘issue’’ is distinct from a
‘‘claim’’ in that a claim may contain one
or more issues.
Several commenters expressed
concern over § 3.2500(b), which
provides that a claimant may not elect
to have the same issue reviewed
concurrently under different review
options, consistent with section
5104C(a)(2)(A). Some of these comments
were specific to the concurrent election
of a different review lane while an
appeal is simultaneously being
reviewed by a federal court. In general,
it is inefficient and raises potential
conflicts for the same issue to be
reviewed concurrently by two different
processes (e.g., concurrent review in
multiple review lanes or in a review
lane and at a court). These different
review lanes may come to different
conclusions. This final rule establishes
a process for a potentially different
conclusion in a lane than in a previous
lane. It is inefficient and confusing for
those conclusions to be reached separate
from each other without the benefit of
the other review’s conclusions. The
appropriate method for a claimant to
seek a different conclusion is to allow
for a decision to be made, then seek
another appropriate review option to
address any additional evidence,
difference of opinion, or perceived error
in the prior conclusion. VA also notes
that concurrent review of a matter by a
lower level review lane and a federal
court is prevented as a matter of law,
due to VA’s lack of jurisdiction to
review a matter pending before a higher-
level authority. Accordingly, no changes
are made to § 3.2500(b) based on these
comments.
One commenter expressed a belief
that the proposed rule limits the options
for a claimant to appeal downstream
issues to reviewing them all in a single
lane. The example offered by the
commenter was a case in which the
Board grants service connection for a
left knee condition, but the claimant
disagrees with the effective date and
percentage of disability assigned by the
Board, and the claimant must choose
one lane for adjudication for each of
these issues, even though the effective
date issue might be better resolved in a
higher-level review and the evaluation
might be better resolved in a
supplemental claim. The proposed rule
did not specifically address downstream
issues, which are those that necessarily
arise from a decision on one element of
a claim. Ratings and effective dates,
using the commenter’s example, are
separate issues that may arise from a
Board grant of service connection.
VA recognizes that a claimant might
sometimes want to seek review of each
downstream issue in a different lane.
However, as VA discussed in the
preamble to the proposed rule, 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 administratively unworkable,
risk self-contradictory decision-making
by VA, and undermine Congressional
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intent to streamline the review process
and reduce adjudication times.
Although problems would not
necessarily arise in every instance, from
the standpoint of administering an
entire system that produces timely
adjudications for all claimants, VA must
attempt to achieve a balance between
more flexibility for individual claimants
and administrative efficiency that
benefits all veterans. Based on extensive
experience administering a claims
adjudication system, and considering
that one of the express goals of the AMA
is to improve the effciency of VA claims
and appeals processing and reduce
overall wait times, VA will not allow
claimants to choose different review
lanes for downstream issues. Rather,
each separate benefit entitlement sought
by a claimant is considered an issue as
defined in § 3.351(c) and cannot be split
into different review lanes for purposes
of admistrative review. VA makes no
regulatory changes based on the
comment.
Some commenters suggested that the
regulatory provision indicating review
options following a Board decision
should include reference to the option
to file a notice of appeal with the U.S.
Court of Appeals for Veterans Claims
(CAVC). VA agrees and revises
§ 3.2500(c)(3) accordingly. Other
commenters suggested that proposed
§ 3.2500(c)(4) should track the statutory
language providing that the one-year
period for continuous pursuit begins
upon issuance of a CAVC decision,
rather than a CAVC judgment. VA
agrees and revises the language in
§ 3.2500(c)(4) accordingly.
Proposed § 3.2500(d) implements
section 5104C(a)(2), providing that the
Secretary may, as the Secretary
considers appropriate, implement a
policy for claimants to switch between
the different review options. A claimant
or the claimant’s duly appointed
representative may, for example, wish to
withdraw a request for higher-level
review or a supplemental claim at any
time prior to VA issuing notice of
decision. VA proposed in § 3.2500(d)
that a claimant may, if the withdrawal
takes place within the one-year period
following notice of the decision being
reviewed, timely elect another review
option to continuously pursue the claim
and preserve the potential effective date
for payment of benefits.
Two commenters expressed concern
that section 5104C(a)(2) does not impose
a time limit on selecting additional
review options upon withdrawal.
However, section 5104C(a)(2)(D) places
the discretion to develop policy in this
area with the Secretary of Veterans
Affairs. Under the AMA (sections
5104B, 5104C, 5110, and 7105), and in
order to ensure efficiency, consistency,
and timeliness, option election periods
are consistently one year from the date
of the decision with which the claimant
disagrees. A withdrawal and election of
a new option must necessarily also be
based on the date of that decision. For
example, a claimant receives an
unfavorable decision and requests a
higher-level review. Sometime during
the year following the claim decision,
but before the higher-level review
request has been adjudicated, the
claimant decides to change to the
supplemental claim lane. The
supplemental claim must be filed
within that same year from the last
decision date. As long as a claimant
submits a supplemental claim within
the same one-year period that follows
the relevant decision, VA will consider
this to be a continuously pursued claim
and continue to base the effective date
of an award of benefits on the filing date
of the initial claim. This benefits the
claimant by ensuring there are clearer
periods of time associated with
processing an action and definitive
decision points in the process on which
to better determine if further action is
desired while protecting the effective
date. Accordingly, no changes are made
to § 3.2500 based on these comments.
Concern was expressed regarding lane
changes after the one-year period
described above, but before a decision
review request has been adjudicated.
VA understands the concern regarding
withdrawing from one lane in favor of
another, particularly if the one-year
period has expired. Accordingly, VA
will consider requests to extend the one-
year period for claimants in one review
lane to switch to the supplemental
claim lane through the above-described
procedure without loss of the current
effective date. Such requests will be
considered on a case-by-case basis for
good cause shown under § 3.109(b).
Section 3.109(b) generally allows for
requests to extend time limits within
which claimants are required to act
based on good cause, and allows such
requests to be made after the relevant
time period has expired subject to
specified procedural requirements. The
only lane into which a claimant may
switch after the one-year period has
expired is the supplemental claim lane
based on new and relevant evidence,
regardless of whether a good cause
exception is allowed for purposes of
maintaining continuous pursuit of the
claim.
VA makes changes in § 3.2500(e) in
accordance with the above discussion in
response to the comment.
VA also makes technical changes to
§ 3.2500(d), including adding the
requirement that withdrawal of a
supplemental claim or a request for a
higher-level review must be in writing
or through electronic submission in a
manner prescribed by the Secretary and
must be filed with the agency of original
jurisdiction. These changes are required
for orderly administrative processing
and to provide useful information to
claimants.
M. Comments Concerning § 3.2501—
Supplemental Claims
VA received multiple comments
requesting clarification about electronic
submissions in § 3.2501. These
comments correctly identify that
§ 3.2501 states that applications may be
made ‘‘in writing’’ and says nothing
about electronic submissions. VA agrees
on the need for clarification regarding
electronic submissions. Accordingly,
VA revises § 3.2501 to clarify that a
claimant or their authorized
representative may submit
supplemental claims in writing or
electronically, consistent with
§ 3.160(a). Additionally, clarity is added
regarding new and relevant evidence
that may be in custody of the VA when
reasonably identified by the claimant
consistent with revisions in
§ 3.103(c)(2). The definition of new and
relevant evidence in § 3.2501(a)(1) is
revised in a similar manner to the
revision of § 3.156 regarding evidence
not previously ‘‘considered by’’ agency
adjudicators.
N. Comments Concerning § 3.2502—
Returns by Higher-Level Adjudicator or
Remand by the Board of Veterans’
Appeals
Several commenters expressed
confusion over the inclusion of the term
‘‘adjudication activity.’’ VA agrees that
our use of this term in the proposed rule
was confusing. Accordingly, VA revises
§ 3.2502 to use the term ‘‘agency of
original jurisdiction’’ throughout the
final rule. Similarly, commenters
requested further clarity on what it
means to ‘‘take immediate action to
expedite readjudication.’’ The AMA
amended 38 U.S.C. 5109B to state, ‘‘The
Secretary shall take such actions as may
be necessary to provide for the
expeditious treatment by the Veterans
Benefits Administration of any claim
that is returned by a higher-level
adjudicator under section 5104B of this
title or remanded by the Board of
Veterans’ Appeals.’’ VA agrees that
clarification is necessary and revises
§ 3.2502 to more closely mirror the
statutory language. The statute does not
further define what is meant by
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‘‘expeditious,’’ leaving timely treatment
of claims to the Secretary. Clearly,
Congress intended that VA would
process these claims as expeditiously as
possible depending upon available
resources. VA will similarly not further
define ‘‘expeditious’’ in the rule to
provide the Secretary the discretion to
direct expeditious processing of actions
through allocation of available
resources, appropriate prioritization of
workload, and issuance of procedures.
O. Comments Concerning § 3.2601—
Higher-Level Review
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 point out any specific
errors in the case as part of the higher-
level review. 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 authorized
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.
Several commenters expressed
concern over the term ‘‘good cause’’ in
§ 3.2601(e) as it relates to VA’s ability to
conduct the higher-level review at the
office which rendered the initial
decision when desired by the claimant.
VA agrees that clarity is needed.
Accordingly, language is added for
clarification regarding situations in
which the VA may not be able to
conduct the higher-level review at the
office which rendered the initial
decision.
P. Comments Concerning General
Timeliness
VA received several comments
recommending timelines and goals
related to timeliness be included in the
rule. VA is committed to the purpose of
appeals modernization, which is to
provide fair, efficient, and more timely
resolution of cases in which a claimant
disagrees with a VA decision. Though
VA intends to maintain a 125-day
average goal for completion of higher-
level reviews and supplemental claims,
the statute does not require a specific
goal and the Secretary must retain the
authority and responsibility to monitor
and prioritize workload, allocate
resources appropriately, and establish
appropriate procedures to best meet
priorities established by any given
change in administration or policy.
Regulating a specific goal eliminates the
judgement and decision-making
authority of the Secretary and reduces
the ability to adapt to change
appropriately. Goals and timelines for
timely completion of VA processes will
be established and monitored through
VA procedures and policy. For these
reasons, no changes are made based on
these comments.
Q. Comments Outside the Scope of the
Rule
One commenter suggested using non-
VA staff, physicians, or case managers at
non-VA facilities to be trained in the
claims and appeals process in order to
fulfill the duty to assist responsibility,
stating this would shorten the claims
and appeals process. This comment is
outside the scope of the proposed rule
because it relates to the specific
methods in which VA accomplishes the
training and management of the law and
regulations. Therefore, no change is
made based on this comment.
Another comment concerned denial
rates under the Rapid Appeals
Modernization Program (RAMP). This
comment is outside the scope of the
proposed rule, therefore, no change is
made based on this comment.
Part 8—National Life Insurance
Program
Based on comments received relative
to part 3, language in § 8.30 is adjusted
to be standardized with the language
used in Part 3 in reference to favorable
findings, supplemental claims, and
higher-level reviews.
Part 14—Legal Services, General
Counsel, and Miscellaneous Claims
For the reasons set forth in the
proposed rule and in this final rule, VA
is adopting the proposed amendments
to 38 CFR part 14 as final, with minor
changes, as explained in the section-by-
section supplementary information
below. These regulations govern
recognition of veterans service
organizations (VSO); accreditation of
attorneys, agents, and VSO
representatives; representation of
claimants before VA, including the rules
of conduct applicable while providing
claims assistance; and fees charged by
attorneys and agents for representation.
R. Comment Concerning § 14.631—
Powers of Attorney; Disclosure of
Claimant Information
VA proposed only one change to
current § 14.631, to update a reference
in paragraph (c) from 38 CFR 20.608 to
38 CFR 20.6 to reflect proposed
revisions to the Board of Veterans’
Appeals’ (Board) Rules of Practice.
Nevertheless, VA received one
comment, from a VA-recognized VSO,
asking VA to clarify how claimants may
change representation and what their
‘‘continuing obligations’’ might be, and
specifically asking for clarification as to
how a claimant would change
representation from an attorney to a
veterans service organization. Although
the commenter asked this question in
regard to the organization’s clients, the
comment pertains to other scenarios as
well, including when a claimant
changes representation from one
attorney or agent to another attorney or
agent or from an attorney or agent to
proceeding without representation.
As a starting point, unless an appeal
is before the Board, the claimant may
discharge the attorney or agent at any
time and for any reason. A claimant may
do so by informing VA of the revocation
or by filing a new power of attorney.
Attorneys, agents, and VSOs are also
permitted to withdraw from
representation while the case is before
the agency of original jurisdiction (AOJ)
so long as the withdrawal would not
adversely impact the claimant’s
interests or if there is good cause for the
withdrawal such as if the claimant
pursues a course of action that the
representative believes to be fraudulent
and is being furthered through the
representative’s representation on the
claim. Current § 14.631 identifies the
effect of withdrawal from representation
and the effect of a revocation of a power
of attorney. Withdrawal before the
Board, proposed § 20.6, sets forth a
different procedure and, in some
circumstances, a higher standard that
must be met before a representative is
permitted to withdraw. Upon
withdrawing from representation, the
representative must generally return all
of the claimant’s property to the
claimant.
Under § 14.631(f)(1), receipt of a new
power of attorney by VA generally
revokes existing powers of attorney.
Under § 14.631(f)(2), however, an agent
or attorney may limit the scope of his
or her representation to a particular
claim by describing the limitation on
VA Form 21–22a. If a VA Form 21–22a,
which limits the scope of representation
to a particular claim, is submitted, after
a VA Form 21–22 or VA Form 21–22a
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that did not, then the, organization or
individual with a prior unlimited power
of attorney would retain representation
for all claims before VA with the
exception of the particular claim
indicated on the new VA Form 21–22a
with the limited scope. Conversely,
under § 14.631(f)(1), if VA receives a
new VA Form 21–22 or VA Form 21–
22a, which contains no limitations in
scope, it would revoke an existing
power of attorney even if the initial VA
Form 21–22a indicated that it was
limited in its scope to a particular claim.
VA will make no further changes to
§ 14.631 based on this comment.
As to the claimant’s continuing
obligations to the attorney or agent
pertaining to fees, this aspect of the
comment will be discussed further
below with regard to § 14.636.
S. Comment Concerning § 14.632—
Standards of Conduct for Persons
Providing Representation Before the
Department
In § 14.632(c)(6), VA proposed to
amend the current regulation which
provides, ‘‘An individual providing
representation on a particular claim
under § 14.630, representative, agent, or
attorney shall not . . . [s]olicit, receive,
or enter into agreements for gifts related
to 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.’’
(Emphasis added.) VA proposed new
language that would state, ‘‘An
individual providing representation on
a particular claim under § 14.630,
representative, agent, or attorney shall
not . . . [s]olicit, receive, or enter into
agreements for gifts related to services
for which a fee could not lawfully be
charged.’’ (Emphasis added.) One
commenter supported the premise of the
provision because it would discourage
unethical charging of fees disguised as
gifts, but the commenter urged VA to
clarify that VA does not intend to
include de minimis gifts within the
prohibition. The commenter noted that
veterans or their families may want to
send small tokens of gratitude to
advocates.
VA has not changed the language
from the proposed rule. Section
14.632(c)(6), as well as other provisions
such as current § 14.628(d)(2)(i)
(essentially prohibiting recognized
organizations and their accredited
representatives from charging or
accepting a ‘‘fee or gratuity for service
to a claimant’’), implement statutory
prohibitions or limitations on the
charging of fees, such as those contained
in 38 U.S.C. 5902(b)(1)(A) and
5904(c)(1). VA appreciates the
commenter’s support for preventing
unethical behavior and recognizes that
most accredited practitioners would not
attempt to circumvent statutory or
regulatory prohibitions on charging fees
through the acceptance of gifts. But,
unfortunately, based on VA’s experience
monitoring the conduct of accredited
individuals and addressing complaints
received regarding the receipt of gifts
and donations, VA does not believe that
exceptions to the rule should be
recognized because doing so could open
the door to potential abuses. Indeed, to
be clear, VA believes that, in
circumstances in which a fee would be
unlawful, a prudent practitioner would
return any gift to the donor to avoid the
appearance of a violation of the
standards of conduct in § 14.632. VA
declines to alter the proposed language
or otherwise offer the clarification or
exception for de minimis gifts requested
by the commenter. To assuage the
commenter’s concerns, VA notes that
the prohibition in § 14.632(c)(6) does
not extend to accepting de minimis gifts
under circumstances where a fee could
be charged by the agent or attorney, but
cautions that if the gift is determined
not to be de minimis it could prevent
the attorney or agent from directly
collecting a fee from VA out of the
claimant’s past-due benefits (where a fee
may be charged but must be contingent
on whether the matter is resolved in a
manner favorable to the claimant and
may not exceed 20 percent of the total
amount of the past-due benefits
awarded). Acceptance of such a ‘‘gift’’ in
addition to the amount to be paid
directly from past due benefits could
cause the fee charged to exceed 20
percent of past due benefits. VA notes
that in many jurisdictions the
appropriateness of accepting of a gift
under circumstances when a fee could
be charged would still be governed by
a version of Rule 1.8(c) of the American
Bar Association’s Model Rules of
Professional Conduct—which generally
prohibits attorneys from soliciting
substantial gifts from clients—and by
extension, current § 14.632(d), which
provides that an accredited attorney is
bound by ‘‘the rules of professional
conduct of any jurisdiction in which the
attorney is licensed to practice law.’’
T. Comments Concerning § 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
VA proposed multiple changes to
§ 14.636. VA did not receive comments
on all the proposed changes and will
only address here those pertinent to the
comments. One commenter objected to
language in proposed § 14.636 that was
proposed to reflect how Public Law
115–55 changes the starting point at
which fees for representation may be
charged. The commenter specifically
objected to the phrase ‘‘if notice of the
decision on a claim or claims was
issued on or after the effective date of
the modernized review system as
provided in § 19.2(a)’’ in proposed
§ 14.636(c)(1)(ii) and the phrase ‘‘a
Notice of Disagreement has been filed
with respect to that decision on or after
June 20, 2007’’ in both proposed
§ 14.636(c)(2)(i) and (c)(2)(ii). The
commenter also objected to all of
proposed § 14.636(c)(3), which states
the limitations on whether an attorney
or agent can charge a fee in cases in
which a Notice of Disagreement was
filed on or before June 19, 2007.
As VA explained in the preamble to
the proposed rule, current 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. VA proposed language
in § 14.636(c) to implement the change
in section 2(n) of Public Law 115–55
that fees may be charged upon VA’s
issuance of notice of an initial decision
on a claim. The commenter correctly
recognizes that the proposed regulation
describes ‘‘multi-level predicates’’ for
when it is permissible for attorneys and
agents to charge fees. The basis for this
structure is the fact that Congress has
shifted the delimiting event for when
fees may be charged by agents and
attorneys three times, most recently
with the passage of Public Law 115–55.
When Congress has done so, VA has
structured § 14.636 and its predecessor,
former 38 CFR 20.609, to reflect the
statutory amendments to 38 U.S.C. 5904
and its predecessor, former 38 U.S.C.
3404, using the effective dates of the
Public Laws. VA’s structure of proposed
§ 14.636 only continues this structure.
This is best reflected by proposed
§ 14.636(c)(3), which is identical in
language to current § 14.636(c)(2),
having been renumbered from (c)(2) to
(c)(3) because proposed subparagraph
(c)(1) has been added to the regulation
address fees under the modernized
appeal system.
But the commenter asserts that such
a structure for the regulation is ‘‘not
supported by the plain language of the
statute.’’ The commenter explains that
38 U.S.C. 5904(c)(1), as amended by
Public Law 115–55, will state, in
pertinent part, the limit on fees as, ‘‘a
fee may not be charged, allowed, or paid
for services of agents and attorneys with
respect to services provided before the
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date on which a claimant is provided
notice of the agency of original
jurisdiction’s initial decision under
section 5104 of this title with respect to
the case.’’ So, the commenter reasons,
the only limitation supported by the
plain language of the amended statutory
section is that the claimant has been
provided notice of the AOJ’s initial
decision under 38 U.S.C. 5104
regardless of when it was issued or if a
Notice of Disagreement or Board
decision followed.
The commenter urges a reading of
Public Law 115–55—essentially as a
retroactive repeal of prior versions of
sec. 5904(c)(1) rather than a prospective
amendment—which would
impermissibly ignore part of the statute.
Although VA referred specifically to
section 2(n) of Public Law 115–55 in the
preamble to explain the basis for
proposed § 14.636, the structure
provided in the regulation also
encompasses section 2(x) of Public Law
115–55, which states that the
amendments made by the public law
only apply to claims for which a notice
of decision is provided by the AOJ on
or after the effective date of the new
review system. In addition to ignoring
sec. 2(x), the expansion of the language
in sec. 2(n) urged by the commenter is
unrelated to the primary aim of Public
Law 115–55—to amend, going forward,
the procedures applicable to
administrative review and appeal of VA
decisions on claims for benefits in order
to create a new, modernized review
system. Accordingly, VA declines to
change the structure of the proposed
rule based on this comment. However,
in reviewing the proposed rule in light
of the comment, VA did discover a gap
between the language for proposed
paragraphs 14.636(c)(1)(ii) and (c)(2)(ii),
regarding when agents and attorneys
may charge fees for representation
provided with respect to a request for
revision of a decision of an AOJ under
38 U.S.C. 5109A or the Board under 38
U.S.C. 7111 based on clear and
unmistakable error.
This gap was created by VA’s
mistaken reference, in proposed
§ 14.636(c)(2)(ii), to the notice of the
decision on the request for revision
rather than the notice of the decision
that is being challenged based on clear
and unmistakable error. By requiring the
notice of decision on the request for
revision to be issued before the effective
date of the modernized review system,
it created a gap involving circumstances
in which the request for revision of a
prior decision based on clear and
unmistakable error is filed after the
effective date of the modernized review
system but challenges the decision that
was issued prior to the modernized
review system and for which a Notice of
Disagreement had been filed after June
20, 2007. The proposed language would
have meant that agents and attorneys
could not charge fees under these
circumstances until after VA had issued
a decision on the request for revision.
Despite the proposed language
indicating otherwise, VA had intended
to permit agents and attorneys to 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
challenged decision was issued before
the effective date of the modernized
review system; a Notice of Disagreement
was filed with respect to the challenged
decision on or after June 20, 2007; and
the agent or attorney has complied with
the power of attorney requirements in
§ 14.631 and the fee agreement
requirements in § 14.636(g). VA has
revised the amendatory language to
address this unintended gap so that an
attorney or agent may charge a fee in
these circumstances regardless of
whether VA has already issued a
decision on the request for revision.
Further, VA has also revised
§ 14.636(c)(1)(ii) to clarify that an
attorney or agent may charge a fee for
representation provided on a request to
revise a decision based on clear and
unmistakable error if the notice of the
decision being challenged based on
clear and unmistakable error was issued
after the modernized review system.
Additionally, VA has added language in
§ 14.636(c)(1)(i) to clarify that, in
requests for revision based on clear and
unmistakable error that are not
otherwise addressed in § 14.636(c)(1)(ii)
or (c)(2)(ii) (e.g., requests challenging
decisions issued before June 20, 2007),
a decision on the request for revision
will be considered the initial decision
for purposes of allowing fees to be
charged for representation.
The same commenter recommended
that VA define the term ‘‘case’’ as used
in 38 U.S.C. 5904(c)(1), as amended by
Public Law 115–55, to include all
requests by a specific individual for a
specific monetary benefit (e.g.,
compensation, pension, or dependency
or indemnity compensation) within a
single case. Under the interpretation
suggested by the commenter, once an
individual receives an initial decision
with respect to a specific type of benefit,
fees could be charged for any
subsequent services provided with
respect to the same type of ‘‘benefit,’’
even if the services related to a claim
with an entirely different basis (e.g., an
initial decision with respect to
compensation for hearing loss would
permit fees to be charged with respect
to the veteran’s subsequent application
for compensation based on service
connection for a mental disorder). VA
disagrees with commenter because such
a rule would untie the term ‘‘case’’ from
the initial decision by the AOJ. The
commenter’s proposal would have the
effect of permitting agents and attorneys
to charge fees to file claims, except the
very first claim filed under a specific
benefit program. If Congress had
intended such a result, it could have
accomplished it by repealing or
replacing the ‘‘with respect to the case’’
language in its entirety. Congress did
not, and, therefore, VA will not interpret
the amended statute in a manner that
would essentially achieve that result in
the absence of any indication that this
was Congress’ intent.
As to the more general aspect of the
commenter’s suggestion that VA should
expressly define the term ‘‘case,’’ at this
time, VA does not believe that it is
necessary to expressly define the term
in regulation to explain under what
circumstances an agent or attorney may
charge fees. Rather, in proposed
§ 14.636(c), VA continues to explain the
term for the purpose of fees in the
context of a ‘‘claim’’ and maintains the
general position that VA must be
allowed to decide a matter before paid
representation is available. See 73 FR
29852, 29868 (May 22, 2008) (the final
rule shifting, pursuant to Public Law
109–461, the delimiting point for the
restriction of fees to the Notice of
Disagreement with respect to the case).
VA recognizes that the term ‘‘claim’’ has
different meanings in different contexts
other than attorney’s fees, so to clarify
the application of the rule VA has
provided guidance in proposed
§ 14.636(c) on three of the more
nuanced circumstances relating to fees:
Supplemental claims, claims for
increase in a rate of disability, and
requests for revision of a prior decision
based on clear and unmistakable error.
VA believes that the proposed
§ 14.636(c) provided sufficient guidance
as to when, and under what
circumstances, a fee may be charged,
but has opted to revise the language to
clarify VA’s current position.
In a similar regard, three commenters
objected to language in proposed
§ 14.636(c)(1) that specifies the
circumstances in which an AOJ’s
decision adjudicating a supplemental
claim will be considered the initial
decision on a claim. Specifically, VA
had proposed adding a sentence to
§ 14.636(c) stating, ‘‘For purposes of this
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paragraph (c)(1)(i), a decision by an AOJ
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 AOJ issued a decision; a
supplemental claim, on or before one
year after the date on which the AOJ
issued a decision; a Notice of
Disagreement, on or before one year
after the date on which the AOJ issued
a decision; a supplemental claim, on or
before one year after the date on which
the Board 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.’’ The commenters advocated
for an interpretation that would allow
for agents and attorneys to receive fees
for representation on all supplemental
claims regardless of whether they are
being continuously pursued by the
claimant. One commenter expressed a
belief that, based on information
conveyed to the commenter by a
director of a VSO, the non-inclusion of
all supplemental claims within the case
restriction in the proposed regulation is
contrary to the negotiations between VA
and its stakeholders. Ultimately, he
characterizes the proposed language as
‘‘a[n impermissible] denial of
professional services to veterans.’’
It is VA’s position that the regulatory
text is consistent with the language of
the amended statute, and to explain
VA’s interpretation of the statute it is
helpful to consider the legislative
history of the statutory restrictions on
attorney’s fees. Since 1988, Congress has
restricted fees on VA appeals by: (1)
Prohibiting fees prior to a specific event
in the appeal proceeding, and (2)
permitting reasonable fees thereafter.
VA views the language proposed in
§ 14.636(c) as being consistent with that
scheme. Originally, in 1988, under
Public Law 100–687, the Veterans
Judicial Review Act, the delimiting
point was a decision by the Board,
which was the decision that was
appealable to the Veterans Court. Then,
under Public Law 109–461, the Veterans
Benefits, Health Care, and Information
Technology Act of 2006, Congress
shifted the delimiting point to the
Notice of Disagreement, the threshold
requirement to receiving a Board
decision. Under Public Law 115–55, the
delimiting point will shift again, from
the Notice of Disagreement to the notice
of the initial decision by an AOJ.
As to how VA views Public Law 115–
55 in relation to the prior scheme, VA
interprets the amendment of section
5904(c) by sec. 2(n) of Public Law 115–
55 as merely a means to allow paid
representation with respect to the
claimant’s expanded options for seeking
review of an initial decision on a claim.
As noted above, prior to Public Law
115–55, to obtain direct review of an
AOJ decision, a claimant had to file a
Notice of Disagreement. Thus, the filing
a Notice of Disagreement was the logical
entry point for ensuring that paid
representation was available with
respect to review of AOJ decisions.
However, pursuant to Public Law 115–
55, direct review of an AOJ decision
may be obtained without filing a Notice
of Disagreement. It may be obtained by
choosing from three differentiated
lanes—filing a Notice of Disagreement,
filing a request for higher-level review,
and filing a supplemental claim. As a
result, to permit paid representation
regardless of the form of review,
Congress necessarily had to shift the
entry point for paid representation to
the AOJ decision itself. VA does not
view the amendment as altering the
general premise that ‘‘VA must have an
opportunity to decide a matter before
paid representation is available.’’ See 73
FR 29852, 29868 (May 22, 2008) (the
final rule shifting, pursuant to Public
Law 109–461, the delimiting point for
the restriction of fees). To the extent that
there is any variation from this general
rule when it comes to evidence
submitted shortly after the AOJ’s
decision, it is explained below.
VA has set forth in § 14.636(c)(1)(i)
the circumstances when an attorney or
agent may charge a claimant for services
in response to an adverse AOJ
decision—after the initial decision on
the claim. The proposed language
referring to when ‘‘an agency of original
jurisdiction adjudicating a supplemental
claim will be considered the initial
decision’’ was intended to distinguish
an initial decision by an AOJ from
review actions made by the same entity
while the claimant continuously
pursued the matter. VA carefully chose
the ‘‘continuously pursued’’ language
included in the proposed rule. Pursuant
to Public Law 115–55, Congress shifted
from a single-option appellate system to
a multi-option appellate system
involving the following three options: a
supplemental claim, higher level review
by the AOJ, and appeal to the Board. In
addition to alternatives for pursuing
appeals, the new system allows
claimants to pursue appellate options in
succession, each relating back to the
same AOJ decision for effective date
purposes.
VA acknowledges that this approach
treats supplemental claims differently
based on whether they were filed within
one year of a prior decision. If a
supplemental claim is filed within one
year of a prior decision, the
supplemental claim relates back to the
claim that gave rise to the earlier claim.
As a result, the relevant time period
with respect to the supplemental claim
overlaps the time period considered in
the earlier decision and is considered a
continuation of that claim. A
supplemental claim filed more than one
year after a prior decision, on the other
hand, is distinct from the prior decision
because it does not overlap with the
timeframe considered in the prior
decision, and, thus, is the beginning of
a new claim for the purposes of
assigning an effective date and a new
claim—or a new case—for the purpose
of determining when attorney fees may
be charged. The distinction between the
submission of evidence on an AOJ
decision for which the review has not
expired and the submission of evidence
after a AOJ decision has been finally
adjudicated, is not a new concept.
Pursuant to current 38 CFR 3.156(b),
new and material evidence received
after an AOJ decision but prior to the
expiration date of the appeal period, or
prior to the appellate decision if a
timely appeal was filed, has long since
been considered to have been filed in
connection with the initial claims
proceeding. In contrast, pursuant to 38
CFR 3.156(a), a finally adjudicated
claim could be reopened but the new
proceeding would not be treated as a
continuation of the prior claim.
Furthermore, unlike supplemental
claims that are filed more than one year
after an AOJ decision or a Board
decision, VA does not have a duty to
notify the claimant who files a
supplemental claim while continuously
pursuing the matter of the information
or evidence necessary to substantiate
the claim in accordance with 38 U.S.C.
5103. See Public Law 115–55, section
2(b). The exclusion of this pro-claimant
obligation also favors treating a
continuously pursued supplemental
claim as part of the matter stemming
from the AOJ’s initial decision. In
contrast, the fact that VA still does have
this obligation with respect to
supplemental claims filed when the
claimant has not continuously pursued
the matter only bolsters the conclusion
that VA should again be permitted to
decide the matter prior to the need for
paid representation.
VA has revised proposed § 14.636(c)
to clarify VA’s position regarding
supplemental claims, claims for
increase in a rate of disability and
requests for revision based on clear and
unmistakable error, but has not made
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any substantive changes to VA’s
position.
Finally, turning back to the
commenter who asked VA about a
claimant’s ‘‘continuing obligations’’ to a
former attorney or agent, VA is
amending § 14.636(e) and (f) based on
this comment to help clarify a
claimant’s continuing obligations with
regard to fees. Simply because a
claimant has discharged an attorney or
agent, or the attorney or agent has
withdrawn from representation does not
eliminate the attorney or agent’s right to
compensation. But the standard for
evaluating a reasonable fee does change.
In the typical case, in which an attorney
or agent has a contingent fee agreement
that does not exceed 20-percent and
provides continuous representation
from the date of the agreement through
the date of the decision awarding
benefits, the fee called for in the fee
agreement is presumed to be reasonable
in the absence of clear and convincing
evidence to the contrary. 38 U.S.C.
5904(a)(5); 38 CFR 14.636(f); see also
Scates v. Principi, 282 F.3d 1362, 1365
(Fed. Cir. 2002) (explaining that even if
a fee agreement provides for a fee of 20
percent of past-due benefits awarded,
implicit in that arrangement is the
understanding that the attorney or
agent’s right to receive the full fee called
for in the fee agreement only arises if
the attorney or agent continues as the
veteran’s representative until the case is
successfully completed). In contrast, if
the attorney or agent’s representation of
the claimant ends before the date of the
decision awarding benefits, the attorney
or agent may still be eligible to receive
a fee, but the full amount of the fee
stated in the agreement generally does
not represent a reasonable fee for that
attorney or agent. Rather a reasonable
fee for a discharged agent or attorney
would be limited to the amount of the
‘‘fee that fairly and accurately reflects
[the attorney or agent’s] contribution to
and responsibility for the benefits
awarded.’’ Scates, 282 F.3d at 1366.
Accordingly, VA is amending
paragraph (f) of § 14.636 by revising the
caption to ‘‘Presumptions and
discharge,’’ amending the current
language to specify that the
presumption that a fee of 20 percent of
any past-due benefits awarded is
reasonable applies ‘‘if the agent or
attorney provided representation that
continued through the date of the
decision awarding benefits,’’ and adding
a new paragraph (f)(2). Paragraph (f)(2)
will explain that a reasonable fee for an
agent or attorney who is discharged by
the claimant or withdraws from
representation before the date of the
decision awarding benefits is one that
fairly and accurately reflects his or her
contribution to and responsibility for
the benefits awarded and that the
amount of the fee is informed by an
examination of the factors in § 14.636(e).
VA has also amended paragraph (e) of
§ 14.636, which lists factors considered
in determining whether a fee is
reasonable, to add as a factor, when
applicable, ‘‘the reasons why an agent or
attorney was discharged or withdrew
from representation before the date of
the decision awarding benefits.’’ See
Scates, 282 F.3d at 1368.
Beyond these regulatory changes, it is
important to remember that VA’s Office
of General Counsel does not initiate
review of the reasonableness of fees in
every case. However, this does not mean
that a claimant who is unhappy with the
representation provided by his or her
agent or attorney, or former agent or
attorney, is without protection and/or
potential recourse. First, pursuant to
VA’s standards of conduct in 38 CFR
14.632, attorneys and agents are
prohibited from charging, soliciting, or
receiving fees that are clearly
unreasonable, and, if an attorney or
agent who is found to have violated this
standard of conduct, the attorney or
agent would risk losing his or her
accreditation to represent claimants
before VA. Second, if a claimant
believes that the total amount of the fee
charged, solicited or received by the
attorney or agent was not earned, the
claimant may initiate his or her own
motion for VA’s Office of General
Counsel to review of the fee. See 38 CFR
14.636(i) (explaining how a claimant
initiates a motion requesting a
reasonableness review).
Parts 19 and 20—Board of Veterans’
Appeals
VA amends the regulations in 38 CFR
parts 19 and 20 as described in the
section-by-section supplementary
information below. These regulations
govern appeals and rules of practice for
the Board of Veterans’ Appeals.
A. Comments Concerning § 19.2—
Appellant’s Election for Review of a
Legacy Appeal in the Modernized
System
Proposed 38 CFR 19.2(d) discussed
the manners in which appellants with
claims or appeals pending in the legacy
system may elect to have their claims or
appeals adjudicated in the modernized
review system. One commenter
requested clarification regarding the
effect of the phrase ‘‘pursuant to the
Secretary’s authorization to participate
in a test program’’ in 38 CFR 19.2(d)(3),
given that 38 CFR 19.2(d)(1) also
addresses election into a test program;
specifically, the Rapid Appeals
Modernization Program (RAMP). The
commenter did not suggest any changes.
Section 4(a) of the AMA of 2017
authorizes VA to conduct test programs
to evaluate the assumptions used to
develop a plan for processing legacy
appeals and supporting the new appeals
system. Although RAMP is one such
program, CFR 19.2(d)(3) acknowledges
the more general authority to conduct
test programs that was granted by
Section 4(a) of the Appeals
Modernization Act. That authority was
used to conduct the Board’s Early
Applicability of Appeals Modernization
(BEAAM), a small-scale research
program conducted to assess
preliminary data about veterans’ choices
and experiences in the modernized
review system. VA makes no changes
based on this comment.
B. Comments Concerning § 19.30—
Furnishing the Statement of the Case
and Instructions for Filing a Substantive
Appeal; and § 19.31—Supplemental
Statement of the Case
One commenter expressed concern
regarding the notice provided to
claimants in statements of the case. The
commenter remarked that VA should
provide adequate notice to enable a
veteran to make a fully informed
decision as to which review option is
most appropriate. However, the
commenter did not suggest a specific
regulatory change. As an initial matter,
VA notes that statements of the case and
supplemental statements of the case are
not contemplated under the Appeals
Modernization Act framework, but will
be provided in legacy claims. To that
end, VA agrees that the notice provided
with statements of the case and
supplemental statements of the case
must contain adequate information as to
the claimant’s opportunity to opt into
the new system pursuant to section 2,
paragraph (x)(5) of the AMA. In order to
clarify this procedure, VA has amended
38 CFR 3.2400(c)(2) and 19.2(d)(2) to
provide that elections to opt into the
new system must be made on a form
prescribed by the Secretary.
C. Comments Concerning § 19.35—
Certification of Appeals
One commenter noted that while
proposing to remove the requirement for
VA Form 8 contained in § 19.35, VA
indicated in the preamble that
certification for legacy appeals will be
accomplished ‘‘by other means.’’ This
commenter asked for clarification of
what these other means will entail. VA
is not changing the process by which
appeals are certified to the Board, VA is
merely no longer requiring the
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prescribed use of the VA Form 8.
Veterans and representatives will still
receive a letter indicating their appeal
has been transferred to the Board and
will still be able to determine the status
of their appeal by checking their claims
file.
Another commenter expressed
concern that the administrative delay of
certification may impact the evidentiary
timelines under the Appeals
Modernization Act. Under the Appeals
Modernization Act, an appeal is under
the Board’s jurisdiction once a valid
Notice of Disagreement is filed.
Therefore, it is the filing of the Notice
of Disagreement, not certification, that
will determine the evidentiary timeline.
Certification is not consistent with the
design of the Appeals Modernization
Act. VA makes no changes based on
these comments.
D. Comments Concerning § 20.3—
Definitions
A commenter expressed concern that
the elimination of the phrase ‘‘argument
and/or’’ from the definition contained in
38 CFR 20.3(h) could be interpreted as
a means to limit or eliminate arguments
from accredited representatives at a
Board hearing. VA directs the
commenter to § 20.700(b), which states,
‘‘The purpose of a hearing is to receive
argument and testimony relevant and
material to the appellate issue or
issues.’’ VA assures the commenter that
the change to § 20.3(h) does not, and
was not intended to, limit arguments
from representatives. Rather, the change
was merely to eliminate redundant
language that is already contained in
§ 20.700(b). VA will continue to accept
argument from accredited
representatives at a Board hearing. VA
makes no changes based on this
comment.
E. Comments Concerning Former
§ 20.102—Delegations of Authority—
Rules of Practice; § 20.108—Delegation
of Authority to Chairman and Vice
Chairman, Board of Veterans’ Appeals;
and § 20.109—Delegation of Authority
to Vice Chairman, Deputy Vice
Chairmen, or Members of the Board
Two commenters expressed concern
that the proposed deletion of § 20.102
means the delegation of authority rule of
practice is being removed from the
Board of Veterans’ Appeals. VA assures
these commenters that the delegation of
authority described remains in
§§ 20.108 and 20.109. The proposed
deletion of § 20.102 is merely to
eliminate redundant language.
Therefore, VA makes no changes based
on this comment.
F. Comments Concerning § 20.104—
Jurisdiction of the Board
A commenter expressed concern that
VA proposed deleting the following
language from § 20.104, ‘‘In its
decisions, the Board is bound by
applicable statutes, the regulations of
the Department of Veterans Affairs and
precedent opinions of the General
Counsel of the Department of Veterans
Affairs.’’ This commenter felt the
removal of this language suggested the
Board would no longer be bound by
precedential opinions of the General
Counsel. VA assures the commenter that
the change to § 20.104 does not, and was
not intended to, suggest the Board is not
bound by precedential opinions of the
General Counsel. Rather, this change
was merely to eliminate redundant
language that is already contained in
§ 20.105. VA makes no changes based
on this comment.
G. Comments Concerning § 20.105—
Criteria Governing Disposition of
Appeals
A commenter suggested VA take this
rulemaking to modify 38 CFR 20.105 to
clarify the precedential or persuasive
value of manual provisions. As
explained in § 20.105, ‘‘The Board is not
bound by Department manuals,
circulars, or similar administrative
issues.’’ VA makes no changes based on
this comment.
H. Comments Concerning § 20.202—
Notice of Disagreement
VA received serveral comments
concerning § 20.202, and will therefore
address these comments by topic, as
follows.
1. Comments Concerning § 20.202(a)—
‘‘Specific Determination’’
Commenters remarked that the term
‘‘specific determination’’ as used in
§ 20.202(a) should be defined. An
additional commenter also asked if a
veteran could indicate they were
appealing ‘‘all issues.’’ The language
‘‘specific determination’’ was included
in the statute. However, VA agrees that
it would be useful to further define this
term in the regulation. VA therefore
amends § 20.202(a) to require
identification of the decision and the
specific issue or issues therein with
which the claimant disagrees. The
amended language references the
definition of issue in 38 CFR 3.151(c).
This change will better inform claimants
of the scope of the identification
requirement and aligns it with other
AMA implementation definitions.
The Notice of Disagreement needs to
contain sufficient information for VA to
determine the issue and adjudication
with which the veteran disagrees. The
design of the new Notice of
Disagreement form prompts the veteran
to provide the issue and the date of
decision with which the veteran is
disagreeing. Additionally, § 20.202
notes that ‘‘[t]he Board will construe
such arguments in a liberal manner for
purposes of determining whether they
raise issues on appeal.’’ This language
protects the rights of a veteran who, for
example, incorrectly identifies the date
of the agency of original jurisdiction
decision, but does provide enough
information that VA is able to identify
the issue and decision on appeal.
Determination of whether an adequate
Notice of Disagreement was filed falls
within the Board’s jurisdiction. 38
U.S.C. 7105(b)(1)(C). As the proposed
rule makes clear, the Board will
construe Notices of Disagreement in a
liberal manner for purposes of
determining whether they raise issues
on appeal. Finally, if the Board receives
an unclear Notice of Disagreement on
the form prescribed by the Secretary and
the Board cannot identify which denied
issue or issues the claimant wants to
appeal, or which option the claimant
intends to select, the Board will seek
clarification of the Notice of
Disagreement before dismissing the
appeal. Therefore, VA makes no changes
based on this comment.
2. Comments Concerning
§ 20.202(b)(3)—Submission of Evidence
in Conjunction With Notice of
Disagreement
Two commenters noted that 38 CFR
20.202 provides time limits on the
veteran’s opportunity to submit
additional evidence or modify the
Notice of Disagreement to elect a
different evidentiary lane, starting from
the date that the Board receives the
Notice of Disagreement. The
commenters expressed concern that VA
does not provide adequate notice as to
when it received the Notice of
Disagreement and therefore the veteran
will not be able to calculate the relevant
deadlines. VA has carefully considered
this comment and has determined that
no changes to the regulatory
amendments are required. It is currently
the Board’s practice to notify veterans
and representatives when an appeal has
been received and docketed at the
Board. As the precise procedures for
providing such notice may change based
on technological systems, as well as
other resources, VA will continue to
address this matter through internal
procedural guidance consistent with the
law and regulations. VA makes no
changes based on this comment.
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3. Comments Concerning § 20.202(c)—
Policies on Modifying the Notice of
Disagreement and Changing Dockets
Several commenters expressed
concern with the policies on modifying
the Notice of Disagreement and
switching dockets in §§ 20.202(c) and
20.800(a)(2). Under § 20.202(c), a
veteran may request a different
evidentiary docket than the one selected
on the Notice of Disagreement, as long
as the request is made within one year
of the notice of the agency of original
jurisdiction decision, or within 30 days
of receipt of the Notice of Disagreement,
whichever is later. This policy accounts
for the common situation in which a
veteran files the Notice of Disagreement
at the end of the one-year period, and
does not retain representation until after
the Notice of Disagreement is filed. The
policy reflected in the proposed rule
provided an additional 30 days after the
filing of the Notice of Disagreement so
that the representative has an
opportunity to recommend that the
veteran modify the initial choice of an
evidentiary record. However, if a
veteran has already submitted evidence
or testified at a Board hearing, the
request will be denied. If a veteran
requests to switch into the docket
allowing submission of additional
evidence, he or she will have 90 days
to submit additional evidence. The 90-
day window will begin on the day that
VA issues a letter notifying the veteran
that the request to switch dockets has
been granted. Veterans who request to
switch dockets will retain their original
docket date, based upon VA’s receipt of
the Notice of Disagreement. Therefore,
there is no ‘‘penalty’’ for switching
dockets.
Two commenters asserted that the
one-year period referenced in
§ 20.202(c) is not authorized by statute
and recommended a more liberal policy.
VA does not agree with the statement
that the policy developed by VA is not
authorized by the statute. The
amendments to 38 U.S.C. 7107(e)
authorize the Secretary to ‘‘develop and
implement a policy allowing an
appellant to move the appellant’s case
from one docket to another docket.’’ The
statute places no restrictions on the
agency’s discretion to impose a time
limitation in such policy. Congress
acknowledged this fact in H. Rept. 115–
135, noting that, ‘‘H.R. 2288 does not
mandate that VA allow veterans to
switch from one option to another. It is
expected that the Secretary will use
their discretion to develop policies that
are in the best interest of veterans.’’
Turning to a commenter’s suggestion
that veterans should have unlimited
time in which to switch dockets, VA
does not view this policy as consistent
with the design of the new system.
Allowing the veteran unlimited time to
modify their Notice of Disagreement
would create an unfair result for other
veterans. VA has established a 365-day
average processing time goal for appeals
in the direct review docket. VA may not
be able to meet this commitment if some
veterans are able to enter the direct
docket ahead of other veterans who
have been waiting on that docket. VA is
also committed to transparency,
including providing veterans with
accurate data about average processing
time on all three dockets. In the new
system, veterans have many choices to
tailor their experience to best suit their
individual needs, and this data will
inform their choices. Allowing some
veterans to switch dockets at any time
in the process will make it difficult for
VA to provide accurate data to all
veterans, effectively taking away their
ability to choose the best path.
Moreover, the primary goal of the
Appeals Modernization Act is to create
a better, more efficient claims and
appeals system that works for veterans.
In the current legacy system, appellants
may add evidence, request a hearing, or
withdraw a hearing request at any time.
Allowing appellants to switch lanes at
any time would mimic this feature of
the legacy system and preclude the
efficiencies built into the new system,
and would thus be contrary to Congress’
intent.
To that end, the Congressional Budget
Office (CBO) determined that section 2
of the AMA, directing VA to implement
the new process to handle appeals of
claims for veterans’ benefits, would be
cost neutral. CBO noted that, ‘‘the
current system allows for repeated
revisions and resubmissions of claims
. . .’’ resulting in wait times of three to
six years and a backlog of approximately
470,000 claims. CBO further noted that
the ‘‘proposed changes are intended to
significantly streamline the appeal
process, which would allow appeals to
be finalized in a shorter period of time
and require the efforts of fewer
employees . . . [E]fficiencies of the new
system would allow the agency to
continue processing legacy appeals
under the current system, very gradually
reducing the existing backlog, without
the need for additional employees.’’
Several commenters have suggested
that the policy deprives veterans of
some of the options available in the new
appeals system, because they may not
understand the ramifications of their
initial review lane choice. In particular,
one commenter suggested that a veteran
who has been waiting for a long time in
the hearing docket should be able to
move to the direct docket. Another
commenter expressed concern with the
policy disallowing a change in dockets
if the veteran had already submitted
evidence with the Notice of
Disagreement. The commenter
suggested that VA should consider
allowing veterans who had already
submitted evidence to subsequently
request a hearing. The commenter
expressed that this change would not
provide an unfair advantage to the
veteran, but would allow a veteran
whose circumstances had changed to
request a hearing before the Board.
The Appeals Modernization Act
provides several new choices for
veterans seeking review of a VA
decision. VA encourages veterans to
seek the advice of their authorized
representative, if any, as soon as
possible when determining which
option best suits their individual
circumstances and to consider
published average wait times associated
with each option. VA understands that
circumstances may change to the extent
that a different option is preferable to
the one initially chosen. As noted
above, however, VA has carefully
balanced the needs of a veteran wishing
to switch dockets against the needs of
all the other veterans waiting for the
Board to decide their appeals. The
proposed policy provides an
opportunity for a veteran to switch
dockets without creating an unfair
disadvantage to other veterans who
wish to continue with their initial
choice, but might experience longer
wait times as a result of others
switching dockets.
Nevertheless, VA recognizes that
exceptional circumstances may
sometimes warrant extensions of the
time period to switch dockets on an
individual basis. Accordingly, VA
amends § 20.203 to add paragraph (c),
which provides that the time limit for
filing a Notice of Disagreement or a
request to modify a Notice of
Disagreement may be extended if the
Board grants the appellant’s motion for
good cause. Examples of good cause
may include serious illness or injury of
the appellant or representative, or the
appellant’s inability to access mail
services due to homelessness, overseas
deployment, or other reasons. Examples
that would not constitute good cause
include change in representation,
change in preference of a review option
at the agency of original jurisdiction or
among the Board review options,
difficulty in obtaining evidence, or
discovery of new evidence during a
period in which the duty to assist does
not apply.
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In addition to the above, another
commenter stated that knowing wait
time predictions (which is linked with
timeliness goals) is important at the
time the initial rating decisions are
made under the new system so that
claimants can make an informed
decision about which Board docket to
choose in a Notice of Disagreement. VA
will be publishing wait times pursuant
to the law, but this is not a reason for
any regulation change.
VA does make a change to § 20.202(c)
in response to comments on a related
Federal Register notice. Because the
Notice of Disagreement form is not a
new information collection, but a
revised information collection under
OMB control number 2900–0674, it was
not published with the proposed
rulemaking. Rather, notice of the
proposed changes to 2900–0674 was
published in the Federal Register on
August 23, 2018, pursuant to the
Paperwork Reduction Act. 83 FR 42769.
One commenter suggested changes to
the Notice of Disagreement for the
purpose of clarifying the procedures for
modifying the Notice of Disagreement.
The commenter recommended that VA
use a standard form for Notice of
Disagreement modifications. VA agrees
with the commenter, and in order to
address the commenter’s concerns, VA
has amended the procedures described
in § 20.202(c) to state that requests to
modify a Notice of Disagreement for the
purpose of selecting a different review
option must be made by filing a new
Notice of Disagreement form.
Several commenters remarked that the
policy does not provide enough time to
change the initial election in the event
that the veteran does not retain
representation until after the Notice of
Disagreement is filed. This concern was
originally addressed in the policy by
providing an additional 30 days
following receipt of the Notice of
Disagreement. Moreover, the Appeals
Modernization Act has shifted
important decision points for veterans
seeking review of a VA decision to
earlier in the process. Under the new
system, the expert advice of
representatives will, in many cases, be
beneficial to veterans as soon as
possible following VA’s initial decision
on their claim. Veterans may wish to
rely on a representative to assist them in
choosing the review option that best
suits their needs. However, VA
acknowledges that some veterans will
not retain representation until after they
file a request for review. In light of the
commenter’s concerns, VA has amended
the policy in § 20.202(c)(2) to provide an
additional 60 days following receipt of
the Notice of Disagreement, instead of
30. VA hopes that this additional time
will assist veterans’ representatives in
better serving their clients.
4. Comments Concerning § 20.202(d)
and (e)—Use of Non-Standard Form
Under proposed § 20.202(d), the
Board will not accept a Notice of
Disagreement ‘‘submitted in any format
other than the form prescribed by the
Secretary, including on a different VA
form.’’ Section 20.202(e) provides that
the filing of an alternate form or other
communication will not extend, toll, or
otherwise delay the time limit for filing
a Notice of Disagreement, as provided in
§ 20.203(b). Several commenters
requested that the Board provide notice
if it rejects a communication under the
circumstances described in § 20.202(d)
and (e). As an initial matter, the statute
requires that Notices of Disagreement
are filed on a standard form. VA
implemented standardized forms
procedures in 2014. See Standard
Claims and Appeals Forms, 79 FR 57660
(Sept. 25, 2014). This 2014 rule
amended VA’s adjudication and appeal
regulations to require that all claims and
appeals originate on standard VA forms.
Therefore, claimants should be aware
that VA will not accept Notices of
Disagreement submitted in any format
other than the form prescribed by the
Secretary. VA is developing procedures
for notifying claimants when a
communication cannot be accepted as a
Notice of Disagreement. As the precise
procedures for providing such notice
may change based on technological
systems, as well as other resources, VA
will continue to address this matter
through internal procedural guidance
consistent with the law and regulations.
Moreover, VA has a longstanding
practice of providing the status of an
appeal or communication upon request.
VA makes no changes based on this
comment.
5. Comments Concerning § 20.202(f) and
(g)—Clarification of Notice of
Disagreement
One commenter remarked that a
Notice of Disagreement could be
rejected by the Board after the Board
requested clarification because the
clarification was received one year after
the agency of original jurisdiction
decision. This concern is addressed in
§§ 20.202(f) and 20.202(g). If within one
year after mailing an adverse decision
(or 60 days for simultaneously contested
claims), the Board receives an unclear
Notice of Disagreement completed on
the form prescribed by the Secretary,
then the Board will contact the claimant
to request clarification of the claimant’s
intent. The claimant must respond to
the Board’s request for clarification on
or before the later of 60 days after the
date of the Board’s clarification request
or one year after the date of mailing of
notice of the adverse decision being
appealed (60 days for simultaneously
contested claims). VA will follow the
provisions of §§ 20.202(f) and 20.202(g),
as well as the statute, 38 U.S.C.
7105(b)(1)(C), which provides that
questions as to timeliness or adequacy
of the Notice of Disagreement shall be
decided by the Board.
An additional commenter requested
that VA provide a period longer than 60
days for clarification of a Notice of
Disagreement and provide good cause
exception to the rule. The proposed rule
providing 60 days for clarification is
based on the current regulation § 19.26,
which provides 60 days for clarification
of an unclear Notice of Disagreement
received under the current system. We
are not aware of hardship resulting from
the current rule. Therefore, VA makes
no changes based on these comments.
The same commenter wanted to know
how the Board will contact veterans to
request clarification. VA will contact
veterans via oral, written, or other
means. The commenter did not put forth
a specific recommendation; therefore,
VA makes no changes based on this
comment.
I. Comments Concerning § 20.203—
Place and Time Filing Notice of
Disagreement
One commenter suggested that, when
a veteran selects either the
Supplemental Claim or Higher-Level
Review options, the one-year time limit
to file a Notice of Disagreement must be
tolled. The commenter is mistaken as to
this aspect of the new system
framework. Pursuant to the AMA, a
veteran may choose to file a Notice of
Disagreement within the one-year
period following an initial agency of
original jurisdiction decision on a claim,
a decision on a Supplemental Claim, or
a decision on a Higher-Level Review.
Such filing will protect the effective
date for any granted benefit. VA makes
no changes based on this comment.
Commenters remarked that
§ 20.203(b) uses the term
‘‘determination’’ as it relates to the
requirement of filing a Notice of
Disagreement whereas the term
‘‘decision’’ is used in section §§ 3.103,
3.104, and 3.2500. VA proposed the
term ‘‘determination’’ in § 20.203(b) as
this is the term used in the Appeals
Modernization Act to describe the
determination with which the claimant
disagrees. However, VA agrees with the
commenters’ concerns that use of
‘‘determination’’ will lead to confusion,
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and therefore amends § 20.203(b) to
instead use the term ‘‘decision’’. This
change does not alter the requirement in
§ 20.202(a) to identify to specific
decision and issue or issues therein
with which the claimant disagrees.
A commenter questioned whether
Notices of Disagreement or other
communications can be digitally
submitted to the Board through Direct
Mail Upload or electronically submitted
through a VA Regional Office and still
be considered as received by the Board.
The commenter expressed concern that
these provisions encourage the use of
the paper mail versus the use of
electronic/digital submissions.
Additionally, the commenter suggested
that the Board’s mailing address should
be reflected on standard forms but not
the regulations.
Pursuant to 38 U.S.C. 7105(b)(2)(C),
notices of disagreement shall be filed
with the Board. Therefore, notices of
disagreement may not be filed with a
VA Regional Office. As to the
commenter’s suggestion that the Board’s
mailing address should not be contained
in regulation, the Board is statutorily
required to receive notices of
disagreement and motions directly from
parties. It has been VA’s longstanding
policy to inform the public and settle in
law the mailing address to which those
submissions must be sent. VA makes no
changes based on this comment.
A commenter expressed concern
regarding VA’s procedures for mailing
notice to representatives, and in
particular the provisions of proposed 38
CFR 20.203(b), regarding timeliness of a
Notice of Disagreement. The commenter
asserted that the 90-day evidence
window for cases described in § 20.302
should begin on the date that the
appellant is notified of VA’s receipt of
the Notice of Disagreement, rather than
on the date of VA’s receipt of the Notice
of Disagreement. Pursuant to 38 U.S.C.
7113(c)(2), however, the evidentiary
record for such cases shall include
evidence submitted ‘‘within 90 days
following receipt of the Notice of
Disagreement.’’ Accordingly, VA will
follow the statute and will make no
changes based on this comment.
The same commenter disagreed with
the agency’s presumption, pursuant to
§ 20.203(b), that notice of a VA decision
was mailed on the date of the letter. The
commenter contended that VA
correspondence to representatives is
often postmarked after the date of the
letter. The commenter submitted several
letters and postmarked envelopes from
VA to individual veterans in support of
this argument. Pursuant to 38 U.S.C.
7105(b)(1)(C), questions as to timeliness
or adequacy of the Notice of
Disagreement shall be decided by the
Board, which is consistent with the fact
that the presumption of regularity is
rebuttable. We further note that the
possibility that the presumption might
be rebutted in a non-trivial number of
cases does not establish that it is
inappropriate in a system the size of
VA’s claims system, which receives and
sends millions and millions of pieces of
mail each year. Finally, operational
issues of the type mentioned by the
commenter are more appropriately
addressed at the sub-regulatory policy
level.
Commenters raised concerns that VA
would not extend the filing deadline for
requests for review of a decision.
Accordingly, VA amends § 20.203 to
add paragraph (c), which provides that
the time limit for filing a Notice of
Disagreement or a request to modify a
Notice of Disagreement may be
extended if the Board grants the
appellant’s motion for good cause.
Examples of good cause may include
serious illness or injury of the appellant
or representative, or the appellant’s
inability to access mail services due to
homelessness, overseas deployment, or
other reasons. Examples that would not
constitute good cause include change in
representation, change in preference of
a review option at the agency of original
jurisdiction or among the Board review
options, difficulty in obtaining
evidence, or discovery of new evidence
during a period in which the duty to
assist does not apply.
Additionally, VA corrects a technical
error in the title of § 20.203, amending
‘‘Place and time filing Notice of
Disagreement’’ to read Place and time of
filing Notice of Disagreement’’.
J. Comments Concerning § 20.205—
Withdrawal of Appeal
One commenter remarked that VA
should include clarifying language
regarding withdrawal of appeals to
ensure that VA only withdraws claims
when that is the veteran’s intention.
Initially, VA notes that this is outside
the scope of the Appeals Modernization
Act. However, VA is still bound by the
caselaw governing adequate
withdrawals of claims and appeals.
Nothing in the Appeals Modernization
Act limits this governing caselaw. VA
makes no changes based on this
comment.
One commenter remarked that
§ 20.205(c) is outside the scope of the
Appeals Modernization Act. Section
20.205(c) provides that the withdrawal
of an appeal does not preclude the filing
of a new Notice of Disagreement, a
request for higher-level review, or a
supplemental claim as to any issue
withdrawn provided such filing would
be timely if the withdrawn appeal had
never been filed. The commenter states
that there is no justification for VA to
require the refiling to be done within
the initial one year period once a timely
Notice of Disagreement has been
submitted. The Appeals Modernization
Act also provides the Secretary the
authority to develop and implement a
policy for claimants who wish to
withdraw their Notice of Disagreement.
The Appeals Modernization Act clearly
provides the claimant one year to seek
review of the agency of original
jurisdiction determination. Therefore,
this time period is incorporated into
§ 20.205(c). Accordingly, §20.205(c) is
not outside the scope of the Appeals
Modernization Act, and VA makes no
changes based on this comment.
Commenters suggest that VA should
allow a claimant to withdraw an appeal
at the Board in order to file a
supplemental claim with VBA prior to
receiving a Board decision. The Appeals
Modernization Act specifically states
that for ‘‘purposes of determining the
effective date of an award . . . the date
of application shall be considered the
date of the filing of the initial
application for a benefit if the claim is
continuously pursued by filing . . . A
supplemental claim . . . on or before
the date that is one year after the date
on which the Board of Veterans’
Appeals issues a decision’’ 38 U.S.C.
5110(a)(2)(D) (emphasis added).
Accordingly, the preservation of the
effective date provisions of the Appeals
Modernization Act generally would not
apply to a claimant who withdraws an
appeal at the Board and files a
supplemental claim with VBA prior to
receiving a Board decision if more than
one year has passed since the agency of
original jurisdiction determination.
However, the agency of original
jurisdiction may consider a request for
extension of the one-year period in
which to file a supplemental claim in
these circumstances while maintaining
continuous pursuit of the claim (see,
e.g., § 3.2500(e)(2)). Accordingly, VA
makes no changes to this section based
on these comments.
K. Comments Concerning Part 20,
Subpart D—Evidentiary Record
One commenter requested
clarification regarding how VA will
adjudicate increased rating claims. The
evidentiary record before the Board is
defined by the Appeals Modernization
Act. The Appeals Modernization Act
did not change the substantive case law
governing increased rating claims.
Accordingly, VA makes no change to
the regulations based on this comment.
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One commenter suggested that
evidence submitted to (or constructively
received by) the agency of original
jurisdiction after a supplemental claim
is adjudicated should be later
reviewable by the Board when an Notice
of Disagreement is filed, even if the
veteran selects the Board lane
precluding submission of new evidence.
This is contrary to the statutory design
of the system. Statutory section 7113
provides that the record before the
Board consists of the record before the
agency of original jurisdiction at the
time that the supplemental claim was
adjudicated. This rule is clearly
mirrored in § 20.301.
If a veteran wants to have VA
consider evidence not received by VA
when the record before the agency of
original jurisdiction was open, the
available options are to (a) file another
supplemental claim with new and
relevant evidence or (b) file a Notice of
Disagreement, select a Board lane
allowing submission of new evidence,
and submit the evidence during the
applicable 90-day window as provided
in §§ 20.302 and 20.303. Therefore, VA
makes no changes based on these
comments.
The regulations as proposed require
the Board to notify a veteran in a Board
decision if the Board did not consider
evidence that had been submitted
outside the allowed time period. One
commenter asserted that the regulations
should require the Board to additionally
notify the veteran at the time such
evidence is received by the Board. The
commenter asserted that waiting to
provide such notice until issuance of
the Board decision creates needless
confusion and delay. As we discuss
above in the context of VBA decisions,
VA does not have resources available to
quickly identify evidence submissions
as untimely and provide notice to the
veteran. VA must prioritize processes
which increase efficiency and reduce
average processing times, so that the
new system as a whole will be
successful. As the Federal Circuit has
stated, ‘‘VA possesses a duty not only to
individual claimants, but to the effective
functioning of the veterans
compensation system as a whole.
Moreover, because the VA possesses
limited resources, these dual obligations
may sometimes compel it to make
necessary tradeoffs.’’ Veterans Justice
Grp, LLC v. Sec’y of Veterans Affairs,
818 F.3d 1336, 1351, 1352, 1354 (Fed.
Cir. 2016). However, VA will take the
comment under consideration, and will
explore the possibility of developing
additional procedures for identification
of untimely evidence in the future to the
extent technological and other resources
lessen the associated administrative
burden. VA further notes that there are
already procedures in place to inform
veterans of the applicable evidence
submission periods and the
consequences of untimely evidence
submission. When veterans receive
notice of their initial decisions, they are
informed of their available review
options and the periods during which
they may submit evidence based on the
options they select. Furthermore, as the
commenter acknowledged, if evidence
is received untimely from a veteran, he
or she is informed of that fact when a
Board decision is issued, pursuant to
proposed 38 CFR 20.801(b)(3). A veteran
may resubmit the evidence with a
supplemental claim within one year of
the Board’s decision and preserve the
effective date associated with his or her
appeal to the Board. VA makes no
changes based on this comment.
Under 38 CFR 20.302(a), when a
Board hearing is requested in the Notice
of Disagreement, the Board’s decision
will include consideration of testimony
and evidence submitted by the
appellant or his or her representative at
the hearing and within 90 days
following the hearing. Under 38 CFR
20.303(b), when a Board hearing is not
requested, but the veteran elects to
submit additional evidence, the Board’s
decision will include consideration of
evidence submitted with the Notice of
Disagreement and within 90 days
following receipt of the Notice of
Disagreement. Several commenters
expressed concern or confusion
regarding these proposed evidence
submission periods.
Specifically, one commenter
expressed concern that veterans who
submit evidence prior to a hearing will
not be notified that such evidence may
not be considered by the Board unless
it is resubmitted during the 90-day
period following the hearing. The
commenter suggested that the Board
advise the appellant on the types of
actions available and that the evidence
needs to be presented at the hearing to
be considered by the Board.
Additionally, the commenter expressed
appreciation for the discretionary
provisions contained in § 20.302(b) and
(c), which allows for a 90-day evidence
submission period even when a hearing
request is withdrawn or the appellant
does not appear for a scheduled hearing.
When veterans receive notice of their
initial decisions, they are informed of
their available review options and the
periods during which they may submit
evidence based on the options they
select. Pursuant to § 20.705(b), a
Veterans Law Judge presiding over a
hearing may find it appropriate to
discuss applicable evidence submission
rules and how those rules apply to an
individual veteran’s circumstances.
Furthermore, if evidence is received
untimely from a veteran, he or she will
be informed of that fact (and the options
available to have that evidence
reviewed) when a Board decision is
issued, pursuant to section 7104(d)(2) as
implemented in proposed 38 CFR
20.801(b)(3). In light of the statutory
direction to provide notice in the Board
decision and the procedures already in
place in the proposed regulations to
inform veterans of the applicable
evidence submission periods and
consequences of untimely evidence
submission, VA makes no changes
based on this comment.
One commenter asserted generally
that limiting veterans’ ability to submit
evidence to certain time periods
represented a shortcoming in the new
system. Another commenter stated that
the 90-day evidence submission
window was concerning regarding FOIA
requests, specifically, since FOIA
procedures take time to complete.
Finally, another commenter suggested
that representatives do not have an
opportunity to review the claims file,
compile relevant evidence, and submit
argument in support of the veteran’s
appeal prior to issuance of a Board
direct review decision, and that a
reasonable time period for submission
of a written statement addressing
relevant evidence and argument must be
written into the regulations. Although
the modernized review system confines
evidence submission to certain periods,
the statute and proposed regulations do
not—apart from creating a faster review
process—restrict a representative’s
ability to submit argument. The design
of the system favors advocacy early in
the appeals process because this is the
most efficient way to reach a
comprehensive and speedy decision.
VA is confident that veterans’ advocates
will be able to meet this expectation. VA
made no changes based on these
comments.
Another commenter, in addressing
proposed 38 CFR 20.302 and 20.303,
expressed concern that those regulations
created a timeframe, between the agency
of original jurisdiction’s initial decision
and the Board hearing, or the agency of
original jurisdiction’s initial decision
and submission of a Notice of
Disagreement, during which a veteran
could introduce evidence into the
record that would not be considered by
the Board. The commenter
recommended that VA include
provisions allowing for submission of
evidence during those periods, in part
because the commenter interpreted the
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provisions for evidence submission in
38 CFR 20.302 and 20.303 as
inconsistent with each other.
The proposed time periods for
evidence submission included in 38
CFR 20.302 and 20.303 are not
inconsistent with each other. Rather,
they represent two separate review
options defined by the statute. For each
option, the statute clearly specifies what
evidence is included in the record
before the Board based on when the
evidence is submitted. Because the
proposed regulations track the plain
language of the statute, no changes will
be made in response to the comment.
VA notes that, should a veteran submit
evidence untimely, he or she generally
may resubmit the evidence with a
supplemental claim within one year of
the Board’s decision and preserve the
effective date associated with the appeal
to the Board. VA makes no changes
based on these comments.
Finally, two commenters’ discussions
reflected general confusion regarding
the timeline for submitting additional
evidence under 38 CFR 20.303(b), where
the veteran elects in the Notice of
Disagreement to submit additional
evidence without a Board hearing. One
commenter asked if a veteran had a total
of 150 days to submit additional
evidence following the initial
decision—60 days after the initial
decision and 90 days after submission of
the Notice of Disagreement. Another
commenter remarked that claimants
only have 60 days to appeal to the
Board, which is not enough time to
compile relevant evidence. VA initially
notes that the commenters are mistaken
that veterans only have 60 days to
appeal to the Board—this deadline only
applies to simultaneously contested
claims. In other cases, the veteran has
one year from the date of notice of a VA
decision to appeal to the Board.
However, if the evidence submission
option is chosen (but no hearing), the
veteran may submit evidence with the
Notice of Disagreement and then has a
total of 90 days, starting on the day the
Notice of Disagreement is received, to
submit additional evidence for
consideration by the Board. Evidence
submitted before or after this 90-day
window will not be considered by the
Board. The commenters did not suggest
specific amendments; therefore, VA
makes no changes based on these
comments.
L. Comments Concerning § 20.600—
Applicability
One commenter stated that the
regulations concerning hearings on
appeal did not clearly identify which
rules pertain to legacy appeals and
referenced the applicability provision at
§ 20.600(b). The commenter suggested
generally that, to avoid confusion, VA
provide more clarity in this area. The
commenter did not make a specific
suggestion for change. VA has attempted
in the regulation to be as clear as
possible regarding which regulations
apply to legacy claims and which apply
to claims in the modernized review
system. For this reason, and because the
commenter did not make a specific
suggestion for change, VA made no
changes based on the comment.
M. Comments Concerning § 20.602—
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; and § 20.703—When a Hearing
Before the Board of Veterans’ Appeals
May Be Requested; Procedure for
Requesting a Change in Method of
Hearing
Proposed 38 CFR 20.602 and 20.703
describe how the Board will determine
the method of a requested hearing in the
legacy and modernized review systems,
respectively. One commenter asserted
that the Board should continue to allow
veterans to select from among available
hearing options, rather than the Board
making the initial selection based on the
earliest practical date and allowing the
veteran one request for a change in
hearing method. 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. Section 102 of Public Law
114–315, by amending 38 U.S.C. 7107,
directs the Board, 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. Proposed 38 CFR
20.602 and 20.703 are necessary to
comply with Public Law 114–315;
therefore, VA makes no changes to the
regulations based on this comment.
Another commenter asserted that the
hearing method determinations
proposed in 38 CFR 20.602 and 20.703
would only be effective if the veteran
could choose his or her preferred
method. The commenter requested an
explanation as to how the Board
planned to determine the method of
hearing after such a preference was
expressed. In accordance with revised
section 7107 and the regulations as
proposed, if a veteran requests a
different hearing method than the one
initially assigned by VA, the veteran’s
request will be honored. However, VA
will only honor one such request. As the
commenter did not suggest an
amendment, VA makes no changes
based on this comment.
N. Comments Concerning 20.700—
General
One commenter suggested VA retain
the option for veterans to submit
electronic records of oral argument to
the Board of Veterans’ Appeals in lieu
of participating in a formal hearing. The
commenter stated that submitting oral
argument would be easier for some
veterans, including those who live in a
rural area, since it may be difficult for
those veterans to travel to the nearest
VA facility for a formal hearing. VA
proposed removing the provisions to
allow for submission of oral recording
in light of the benefits of in-person
testimony, as well as the ability to
submit argument through other means
when testifying at an in-person hearing
is not practical or desired. Veterans are
able to request a video hearing before a
Veterans Law Judge, which benefits
rural veterans. Veterans are also able to
submit photographs and other visual
evidence during an appropriate
evidentiary window. Finally, veterans
and their representatives are able to
submit written argument, including an
informal hearing presentation.
Section 504 of the Rehabilitation Act
requires Federal agencies to provide
individuals with disabilities meaningful
access to programs, activities and
facilities. Section 794(a) of title 29,
United States Code, states that ‘‘[n]o
otherwise qualified individual with a
disability in the United States . . . shall,
solely by reason of her or his disability,
be excluded from participation in, be
denied the benefits of, or be subjected
to discrimination under any program or
activity conducted by any Executive
agency.’’ VA regulations implementing
the Rehabilitation Act are found at 38
CFR part 15. VA is prohibited from
‘‘[d]eny[ing] a qualified individual with
handicaps an opportunity to participate
in or benefit from the aid, benefit, or
service.’’ 38 CFR 15.130(b)(1)(i). Also,
VA is required to ‘‘furnish appropriate
auxiliary aids where necessary to afford
an individual with handicaps an equal
opportunity to participate in, and enjoy
the benefits of, a program or activity
conducted by the agency.’’ 38 CFR
15.160(a)(1). The term ‘‘[a]uxiliary aids
means services or devices that enable
persons with impaired sensory, manual
or speaking skills to have an equal
opportunity to participate in, and enjoy
the benefits of, programs for activities
conducted by the agency.’’ 38 CFR
15.103.
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VA’s proposed amendments to 38
CFR 20.700 do not indicate any intent
by the Department to forego its
obligations under the Rehabilitation Act
and implementing regulations. VA did
not propose any amendments to 38 CFR
part 15. Rather, as required by the
Rehabilitation Act and implementing
regulations, if an individual has a
disability that prevents or limits his or
her ability to submit a written argument
to the Board or attend a hearing at a VA
facility and informs the Board that he or
she needs an accommodation that will
enable submission of an argument, the
Board will make every effort to meet
that need, including accepting an oral
argument on audio cassette. However,
given the fact that 38 CFR part 15
governs Department efforts to ensure
that individuals with disabilities can
participate in all VA programs and that
no one has submitted an oral argument
on audio cassette to the Board in recent
years, we do not believe it is necessary
to maintain the reference to submission
of oral argument on outdated technology
in the new rule. VA notes that, prior to
the changes 38 CFR 20.700 that we
proposed and here confirm as final,
paragraph (d) of that section made
submission of argument by audio
cassette available whenever an
appellant ‘‘cannot, or does not wish to’’
appear. That provision made
submission of argument by audio
cassette much more broadly available
than is necessary to comply with the
Rehabilitation Act. Accordingly, the
elimination of this provision does not
create any tension with VA’s continued
compliance with its regulations
implementing the Rehabilitation Act.
The commenter also states that VA
should consider the efficiencies to the
adjudication process of submission of
recordings in lieu of formal hearings.
VA strongly disagrees. Any such
efficiencies are greatly outweighed by
the benefits of an in-person hearing, the
purpose of which is to elicit relevant
and material testimony, assess the
credibility of witnesses, resolve
disputed issues of fact, and pose follow-
up questions to witnesses and
representatives. 38 CFR 20.700(b).
As for the suggestion that argument
submitted on an audio cassette would
be ‘‘attractive to the schedules’’ of
clinics and their clients, VA points out
that, under § 20.704(a)(1) and (c), Board
hearings are ‘‘scheduled at the
convenience of appellants and their
representatives with consideration of
the travel distance involved,’’ and a
written request to reschedule a hearing
‘‘may be made at any time up to two
weeks prior to the scheduled date of the
hearing if good cause is shown.’’
VA therefore makes no changes based
on these comments.
O. Comments Concerning § 20.705—
Functions of the Presiding Member
Three commenters stated that
§ 20.705(b)(7), allowing Veterans Law
Judges to reject evidence presented
during a hearing on the basis of
irrelevance, contradicts the pro-veteran
nature of Veterans’ law. The commenter
requested that it be removed, asserting
that veterans should be permitted to
submit whatever evidence they wish
into the record and that the Judge would
be free to assess the evidence’s
probative value. Paragraph (b)(7) states
that it is the duty of the presiding
member to exclude documentary
evidence, testimony, and/or argument
which is not relevant or material to the
issue or issues being considered or
which is unduly repetitious. Paragraph
(b)(7) may not be used to exclude
evidence that is relevant to the issue or
issues on appeal. The commenter is
correct that veterans may submit
evidence and/or testimony into the
record, and that the function of the
presiding Member is to assess the
evidence’s probative value. Rather, the
purpose of paragraph (b)(7) is to allow
the presiding Member to focus hearing
testimony on the issue or issues on
appeal.
Another commenter expressed
concern that VA is seeking to abrogate
Bryant v. Shinseki, 23 Vet.App. 488
(2010) by including paragraph (b)(7).
These regulations do not and do not
intend to limit the holding of Bryant.
This regulation will assist in providing
a focused, directed hearing which will
be as assistive as possible to the veteran
in substantiating the claim consistent
with Bryant. However, based on the
commenters’ concerns, VA will amend
§ 20.705(b)(7) to state that the duties of
the presiding Member include
‘‘determining whether documentary
evidence, testimony, and/or argument is
relevant or material to the issue or
issues being considered and not unduly
repetitious’’. This amendment makes
clear that VA will not exclude any
evidence, but rather, will assist the
veteran in focusing on evidence that
helps to establish the elements of the
claim. For example, if the VA decision
on appeal contained a binding favorable
finding as to the veteran’s current
diagnosis, the presiding Member may
instruct the veteran that no further
testimony or other evidence is needed
as to the current diagnosis, as that
element of the claim has already been
established.
P. Comments Concerning § 20.714—
Correction of Hearing Transcipts
A commenter addressed 38 CFR
20.714, which requires a veteran to seek
correction of the hearing transcript
within 30 days ‘‘after the date that the
transcript is mailed’’ to the appellant.
The commenter explains that this
requirement is not accompanied with an
assurance that a copy of the transcript
will be provided to the veteran (unless
requested) and points out that the
veteran will not know to ask for the
transcript or seek correction within such
a limited timeframe unless the Board
notifies him or her. Under § 20.712, if
the appellant or representative requests
a copy of the written transcript in
accordance with § 1.577, the Board will
furnish one copy to the appellant or
representative. It would be unnecessary
and wasteful to provide written
transcripts where they are not
requested; instead the veteran is given
the choice to request a transcript. As
stated, upon request, the transcript will
be provided. VA has made no changes
based on these comments.
Q. Comments Concerning § 20.715—
Loss of Hearing Tapes Or Transcripts—
Motion for New Hearing
In proposing § 20.715, the title read:
‘‘Loss of hearing recordings or
transcripts—motion for new hearing.’’
The inclusion of the word ‘‘motion’’ in
the title was an error. Motions are no
longer required, as the content of the
rule makes clear. This final rule revises
‘‘motion’’ to read ‘‘request’’.
In regard to § 20.715(a)(2), one
commenter stated that a veteran would
be unfairly disadvantaged in the event
that a recording is lost through no fault
of his or her own, and suggested that
affording the opportunity to submit
argument and evidence within 60 days
would be more equitable than only
giving the veteran 30 days to respond to
a letter asking whether a new hearing
was requested.
This rule eliminates the prior
requirement that a motion for a new
hearing be made by the veteran prior to
VA offering a new hearing. This
formality proved unnecessary in
practice because VA often offered a new
hearing without a motion. VA has
proposed limiting the time period to 30
days in the interest of expediting the
case. It is intuitive that a veteran who
had recently appeared for a hearing
would be responsive to an offered
choice. Giving the veteran a choice in
the face of a lost or destroyed recording
is consistent with the general theme of
the Appeals Modernization Act.
Regarding the commenter’s suggestion
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that VA offer a third option—an
additional 60 days to submit evidence
or argument in lieu of a new hearing,
this is not necessary as this option
already exists. The veteran has 90 days
following the Board hearing in which to
submit evidence and may submit
argument at any time prior to the Board
decision. Accordingly, the veteran
would have already had an opportunity
to submit evidence and argument. VA
has made no changes in response to this
comment.
R. Comments Concerning § 20.800—
Order of Consideration of Appeals
One commenter expressed concern
that the proposed 38 CFR 20.800
removes the authority of the Chairman
of the Board of Veterans’ Appeals to
expedite (advance on docket) cases on
his or her own motion. The commenter
is mistaken, as § 20.800 maintains the
authority of the Chairman to advance
cases on the docket on the Chairman’s
own motion. (‘‘A case may be advanced
on the docket to which it is assigned on
the motion of the Chairman . . .’’)
Several commenters raised concerns
regarding claims in which the veteran
chooses to appeal to the Board again
following a Board remand and
readjudication by the agency of original
jurisdiction. Commenters suggested that
such appeals must be automatically
returned to the Board after the
readjudication, and the original docket
date restored. Automatically returning
appeals to the Board without the
veteran’s affirmative election would be
inconsistent with the AMA. This facet
of the current regulatory system means
that veterans seeking further review are
forced to return to the Board by default,
regardless of whether this is their
choice, or the most advantageous
option. At the same time, the Board is
compelled to expend limited resources
on cases where the claimant may no
longer disagree with VA’s decision,
delaying adjudication of new appeals.
In contrast, the AMA provides
veterans with review choices whenever
a VA decision is issued, without regard
to whether the decision follows a
remand from the Board. A veteran
whose case is returned by the Board for
readjudication has the same options as
a veteran seeking review for the first
time. In many instances, one of the
agency of original jurisdiction lanes will
be a better review option for a veteran
whose case is adjudicated following
remand, rather than an appeal to the
Board. VA makes no changes based on
this comment.
S. Comments Concerning § 20.801—The
Decision
Multiple commenters asserted that the
general statement required under
proposed 38 CFR 20.801(b)(3) will not
adequately inform veterans of the
evidence that was not considered in a
Board decision due to untimely
submission. The commenters
recommended that the Board decision
include a more detailed description of
the evidence that was not considered, to
include noting the date unconsidered
evidence was submitted. One of those
commenters also asserted that the
proposed regulations did not create an
avenue for informing a veteran what
recourse he or she has when evidence
is not considered by VA. The law
requires that each decision will contain
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. See AMA
section 2(w)(2)(C). The information in
the decision should be the avenue for
the pertinent information the veteran
requires to prevail on the claim. As the
precise procedures for providing more
detailed notice may change based on
technological systems, as well as other
resources, VA will continue to address
this matter through internal procedural
guidance consistent with the law and
regulations. VA made no changes based
on these comments.
T. Comments Concerning § 20.802—
Remand for Correction of Error
Several commenters suggested that
the Board should expedite claims in
which the veteran chooses to appeal to
the Board again following a Board
remand and readjudication by the
agency of original jurisdiction. One
commenter specifically stated that
§ 20.800(e), providing that a new Notice
of Disagreement filed after a
reajudication by the agency of original
jurisdiction will be docketed according
to the date of the new Notice of
Disagreement, was in conflict with
§ 20.802(c), which provides that the
agency of original jurisdiction must
provide for the expeditious treatment of
any claim that is remanded by the
Board.
VA disagrees that the rules are in
conflict. Section 20.802(c) requires that
the agency of original jurisdiction treat
remands from the Board expeditiously;
it does not require expeditious
treatment by the Board. This section is
consistent with revised 38 U.S.C. 5109,
which provides: ‘‘The Secretary shall
take such actions as may be necessary
to provide for the expeditious treatment,
by the Veterans Benefits
Administration, of any claim that is
returned by a higher-level adjudicator
under section 5104B of this title or
remanded by the Board of Veterans’
Appeals.’’ This provision does not apply
to the Board. Accordingly, 20.800(e) is
consistent with the statute and there is
no conflict between §§ 20.800(e) and
20.802(c).
In amending 38 U.S.C. 5104B,
Congress chose not to include a
requirement that the Board expedite
cases re-appealed to the Board following
remand. If the Board were to expedite
new appeals following remand,
adjudication of other appeals at the
Board would be delayed. In addition, as
discussed above, under the new system
the veteran must file a new Notice of
Disagreement following the decision on
remand to elect review by the Board.
The Notice of Disagreement initiates a
new appeal at the Board that may
challenge the adjudication below on an
entirely new basis on a new evidentiary
record. Given these factors and
Congress’ choice to limit the scope of
section 5104B, prioritizing adjudication
according to the date the Notice of
Disagreement is received (within the
evidentiary lane selected) achieves a
reasonable balance among the interests
at stake. VA makes no changes based on
these comments.
A commenter questioned how appeals
returned from CAVC would be
docketed. The AMA did not change the
procedures at the Board for expediting
cases returned from CAVC. Consistent
with 38 U.S.C. 7112, the Board will
continue to expedite the adjudication
required by a CAVC remand. Notably,
CAVC remands require the Board to
readjudicate the appeal based upon the
same record previously before the
Board; accordingly, such appeals would
be placed on the same docket that the
veteran was on previously. VA makes
no changes based on this comment.
A commenter expressed general
concerns as to how advisory medical
opinions will be implemented pursuant
to § 20.802(b). The commenter stated,
‘‘[w]hile 38 [CFR] 20.802(c)(1)(ii) allows
thorough consideration of the issues
presented in the claim by experienced
Board personnel and gives the Board
broad authority to request IMOs in
remands, we are concerned that this
important tool may be buried under the
clunky procedures in the regulation.’’
The commenter did not offer any
specific suggestions or
recommendations for this rulemaking,
but did suggest that the new procedures
placed a greater burden on the veteran
to request an advisory medical opinion
at the claim stage. The AMA eliminated
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the statutory provision which
previously authorized the Board to
independently request medical
opinions, and created a new process by
which the Board orders such opinions
through remands. 38 U.S.C.
5103A(f)(2)(B). Section 20.802(b)
implements the statutory amendments
to this process. Therefore, VA makes no
changes based on this comment.
A commenter expressed concern that
because remanded cases are no longer
returned to the Board per the proposed
rule, the Board will not be able to
ensure that the agency of original
jurisdiction complied with all remand
directives, consistent with Stegall v.
West, 11 Vet. App. 268, 271 (1999). The
commenter urged VA to develop and
implement a dedicated quality review
methodology for Board remands. The
design of the new system provides
ample protections to ensure that
subsequent adjudicators comply with
the Board’s remand directives. The
AMA requires that any pre-decisional
duty to assist error discovered by an
adjudicator be cured and that the
decision be readjudicated by the agency
of original jurisdiction. Following
readjudication, the veteran may again
request Higher-Level Review, file a
Supplemental Claim, or appeal to the
Board. If such action is taken within one
year, the original effective date will be
preserved.
Regarding the commenter’s
recommendation for dedicated quality
review, the Direct Review docket,
described in proposed § 20.301,
captures quality feedback from appeals
in which no additional evidence is
added to the record. This allows VA to
identify areas in which the claims
process can be improved and will allow
VA to develop targeted training. VA
makes no changes based on these
comments.
U. Comments Concerning § 20.1003—
Hearing on Reconsideration
A commenter contended that the
provision of § 20.1003 precluding a
hearing on allowed Motions for
Reconsideration unless the veteran had
requested a hearing on the underlying
Notice of Disagreement violates due
process. The commenter remarked that
a Motion for Reconsideration is solely
based on the Board’s decision and
therefore should not be affected by the
Notice of Disagreement, which was filed
prior to the Board’s decision. As laid out
in § 20.1003, hearings are only provided
if a motion for reconsideration has been
allowed. Once allowed, the Chairman
will assign a panel to adjudicate the
underlying issues that were before the
Board. This means the reconsideration
panel continues to adjudicate pursuant
to the Notice of Disagreement which led
to the prior Board decision. Under the
Appeals Modernization Act, the Notice
of Disagreement indicates the claimant’s
selection of a Board review option. For
consistency purposes and because
reconsideration is an adjudication
pursuant to the Notice of Disagreement,
VA makes no changes based on this
comment.
V. Comments Concerning § 20.1103—
Finality of Determinations of the Agency
of Original Jurisdiction Where Issue Is
Not Appealed
Two commenters were concerned that
§ 20.1103 did not make clear the
continued applicability of §§ 3.105 and
3.156(c) to all claims. Additional
commenters recommended adding a
reference to CUE and 38 CFR 3.105 in
proposed § 20.1103. VA agrees that prior
to the initial decision on the claim VA
must consider VA records as explained
in Bell v. Derwinski, 2 Vet. App. 611
(1992). The Bell doctrine of constructive
possession will continue to apply,
unchanged, while the duty to assist
applies. This means that until the
veteran receives the notice of decision
of his claim or supplemental claim, all
treatment records in the agency’s
possession are deemed associated with
the veteran’s file. The other commenter
wanted VA to include a reference to
§ 3.156(c) in proposed regulation
§ 20.1103; this is unnecessary because
§ 3.156(c) was untouched by the
Appeals Modernization Act. Neither
inclusion is necessary, and VA makes
no changes based on these comments.
W. Comments Concerning § 20.1302—
Death of Appellant During Pendency of
Appeal Before the Board
A commenter suggested that VA
should modify 38 CFR 20.1302 to
provide that a substituted appellant will
have similar timeframes to those the
veteran would have had in the
modernized appeal system. The
language of 38 CFR 20.1302 already
provides this policy. The amended rule
provides that a substituted appellant
will assume the veteran’s appeal in its
original place on the docket. That
means, the substituted appellant will
maintain the same evidentiary
timeframes of the docket the veteran
selected. Furthermore, the substituted
appellant will be free to submit
argument in support of their appeal. VA
makes no changes based on this
comment.
X. Comments Concerning § 20.1304—
Request for a Change in Representation
A commenter suggested that the
timeframe for changing representation
should mirror the timeline for
submitting evidence, so that if the
record is closed the veteran is no longer
able to switch representation. This
commenter explained once the record is
closed, representation is ‘‘seriously
constrained as to the strategy of the
appeal at that stage.’’ VA proposed to
maintain the 90-day window to change
representation once an appeal is at the
Board in § 20.1304 so that it mirrors the
policy in place under the legacy system.
Representatives maintain the ability to
decline representation if they determine
they cannot adequately support the
veteran’s appeal. Furthermore,
representatives maintain the ability to
submit argument on the veteran’s
appeal. VA makes no changes based on
this comment.
Y. Comments Concerning § 20.1305—
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
Another commenter asked VA to add
language to proposed 38 CFR 20.1305
acknowledging the possibility of
multiple 90-day notices and the
opportunity for multiple Board hearings
in a legacy system claim. In support of
that request, the commenter asserted
that multiple Board hearings are
provided for in continuously pursued
claims in the modern review system,
provided a veteran had filed a
supplemental claim between the
hearings. However, the commenter is
conflating the concept of continuous
pursuit for the purposes of preserving
an effective date and the concept of a
continuous claim for the purposes of
providing development such as a Board
hearing. The modernized review system
does not specifically provide for
multiple Board hearings during
processing of a single claim. Thus, the
commenter’s assertion that the legacy
system regulation should mirror the
provisions applicable to Board hearings
in the modernized system is misplaced.
VA makes no changes based on this
comment.
One commenter objected to the option
in the new system for a veteran who
receives an adverse Board decision to
file a supplemental claim based on new
and relevant evidence, asserting that
this option may operate to prevent
finality and judicial review. The
commenter was concerned that a
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veteran in receipt of an adverse Board
decision might be tempted to exercise
the option to file a supplemental claim,
causing the veteran to return to the first
step of the adjudication process and
thereby prolonging resolution of the
claim. Because the option to file a
supplemental claim following a Board
decision is a feature of the statute, VA
does not have discretion to adopt a
different procedure. In any event, filing
a supplemental claim following a Board
decision is optional, and the veteran
may instead choose to file an appeal
with the U.S. Court of Appeals for
Veterans Claims or, alternatively, file a
request with the Board for revision
based on clear and unmistakable error
once the judicial appeal period has
expired. To the extent that the
commenter suggests that VA
adjudicators will be predisposed to
deny supplemental claims, any such
predisposition is against VA policy.
Adjudicators are required to review a
supplemental claim objectively and
fairly based on its merits under
applicable law. VA makes no changes
based on this comment.
Z. Comments Concerning § 20.1403—
What Constitutes Clear and
Unmistakable Error; What Does Not
One commenter questioned why VA
inserted a time limitation on the
evidence in § 20.1403 that would affect
legacy appellants. However, this final
rule does not amend the 90-day time
period already mentioned in § 20.1403;
there is no new time limitation.
Another commenter expressed
concern that the proposed regulations
newly restrict evidence that may be
submitted in support of a motion for
revision of a prior Board decision based
on CUE or, at the least, do not seem to
accommodate the possibility, under the
modernized system, of submitting
additional evidence to support a CUE
motion via a supplemental claim.
However, the outcome of CUE continues
to be based on the evidence of record
before the Board at the time of the prior
Board decision. That underlying
consideration is unchanged by the
Appeals Modernization Act. To the
extent that the description of CUE in
§ 3.105(a) has been expanded in the
proposed regulations, that expansion
merely incorporates longstanding
caselaw. As the outcome of a CUE
motion continues to depend upon
whether the correct facts, as they were
known at the time of the decision, were
before the adjudicator, and whether the
statutory and regulatory provisions
extant at the time were correctly
applied, VA makes no changes based on
this comment.
AA. General Comments
Several commenters encouraged VA
to create timeliness goals regarding the
processing of legacy and Appeals
Modernization Act cases. One
commenter suggested that the
regulations should include a provision
requiring that representatives have
access to online tools that provide wait
time predictions and appeal status. VA
has carefully considered this comment,
and has determined that no changes to
the regulatory amendments are required.
The issue raised by the commenter
concerns a sub-regulatory policy
determination within the agency’s
discretion. VA will address this matter
through internal procedural guidance
consistent with the law and regulations.
One commenter stated that VA should
amend the regulations to specify the
time period when the claimant and
representative may submit a written
argument when the claimant files a
Notice of Disagreement and requests
direct review without the opportunity
for a hearing or to submit additional
evidence. The proposed regulations did
not limit the period when written
argument can be submitted to the Board
between the filing of an NOD and
issuance of the Board decision. We do
not believe that imposition of a time
period for submission of argument
would appreciably speed up the
appellate process, and it could deprive
the veteran of an opportunity to argue
in favor of his or her claim. VA makes
no changes based on this comment.
One commenter remarked that VA
should define the term ‘‘timely’’ in
regulation, and that failure to do so
would be unlawful. The AMA did not
amend 38 U.S.C. 7101 which already
provides that the Board must have
sufficient resources to ‘‘conduct
hearings and dispose of appeals
properly before the Board in a timely
manner.’’ However, VA may not
determine future resource levels
without Congressional authorization.
Defining the term ‘‘timely’’ in regulation
would be improper as it would infringe
on the appropriations process. Only
Congress may determine whether VA
requires additional resources. Therefore,
VA makes no changes based on this
comment.
Several commenters expressed
concern that the new system will be too
complicated and will disadvantage pro
se claimants. The fundamental features
of the framework are required by law;
however, VA acknowledges the
commenter’s concern and remains
committed to the non-adversarial
process.
One commenter asked whether, if a
veteran has an appeal in the legacy
system that becomes inextricably
intertwined with an issue in the
modernized appeal system, the veteran
will be given the choice to remain in the
legacy system or have both issues
proceed in the modernized system. VA
has carefully considered this comment
and has determined that no changes to
the regulatory amendments are required.
The issue raised by the commenter may
be dealt with as a sub-regulatory policy
determination within the agency’s
discretion. VA makes no regulatory
changes based on this comment, but
will address this matter through internal
procedural guidance consistent with the
law and regulations.
One commenter remarked that the
ability to select different review options
for different claims will cause confusion
and asked if claims can be rejoined once
the claimant selects different review
options. VA will respect the veteran’s
choice to select different review options
for different issues. A claimant may
choose to modify the Notice of
Disagreement, as provided in
§ 20.202(c), if he or she wishes to
change review options. Thus, it is
possible for a claimant to ‘‘rejoin’’
claims as described by the commenter.
However, VA will not automatically
rejoin claims for administrative
efficiency purposes or any other reason
unless the claimant specifically requests
this under § 20.202(c). The fundamental
features of the framework are required
by law, and VA encourages claimants to
discuss their review options with their
representatives, if they have one.
Claimants have one year from the date
of notification of the rating decision on
appeal to modify their review option.
VA makes no changes based on this
comment.
One commenter suggested that VA
does not need to create a third docket
at the Board for Veterans’ Appeals for
veterans who wish to submit new
evidence without holding a hearing,
since the Appeals Modernization Act
only required a minimum of at least two
dockets. This commenter suggests
veterans who submit additional
evidence within 90 days of the Notice
of Disagreement should be maintained
on the same docket as the closed record
review. VA has considered this
comment, but determined that
combining the direct review and
evidence only dockets would be
contrary to the spirit of the Appeals
Modernization Act. One key advantage
of maintaining a separate docket that
does not allow for a hearing or
submission of additional evidence is
that the Board reviews the same record
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that was before the agency of original
jurisdiction. This review provides VA
with a quality feedback loop, in which
VA is able to identify trends and areas
for correction in the adjudications by
the agencies of original jurisdiction.
This quality feedback loop will provide
for more targeted training of VA staff to
ensure accurate adjudication of claims.
If additional evidence was added to
appeals in this lane, then the Board’s
determination may be based on the
changed record and would no longer
provide the same direct quality review
feedback. VA makes no changes based
on this comment.
A commenter suggested that if a
veteran who has an appeal pending with
the Board submits evidence, this new
evidence should automatically be
considered as a supplemental claim.
This suggestion is contrary to the
framework established in the Appeals
Modernization Act. Specifically, the
Appeals Modernization Act explicitly
provides that once a veteran chooses a
review option he/she may not pursue
another review option until a decision
is received or the veteran affirmatively
withdraws the initial review option. 38
U.S.C. 5104C(a)(2)(A). Accordingly, VA
makes no changes based on this
comment.
One commenter remarked that VA
should provide a formal application for
a motion for CUE. The purpose of this
rulemaking is to amend VA’s claims
adjudication, appeals, and Rules of
Practice of the Board of Veterans’
Appeals regulations as required to
implement the AMA. Nevertheless, VA
will take the commenter’s suggestion
under advisement.
Additional commenters suggested that
VA create a standardized form for
Veterans to use in withdrawing appeals
before the Board. The purpose of this
rulemaking is to amend VA’s claims
adjudication, appeals, and Rules of
Practice of the Board of Veterans’
Appeals regulations as required to
implement the AMA. Nevertheless, VA
will take the commenters’ suggestion
under advisement.
BB. Comments Concerning VA Form
10182—Notice of Disagreement
One commenter raised concern that
the required forms referred to in the
regulations were not published as part
of the rulemaking proposal. Because the
Notice of Disagreement is not a new
information collection, but a revised
information collection under OMB
control number 2900–0674, it was not
published with the proposed
rulemaking. Rather, notice of the
proposed changes to 2900–0674 was
published in the Federal Register on
August 23, 2018, pursuant to the
Paperwork Reduction Act. 83 FR 42769.
The fact of separate publication was
noted at the proposed rule stage and
publication of the notice closely
followed publication of the rulemaking
proposal. As noted in the notice, a copy
of the draft form will be provided upon
request. VA makes no change based on
this comment.
One commenter expressed concern
that VA forms are too long and
suggested the information could instead
be found on a web page. VA wants to
ensure all Veterans have access to the
important information, including those
Veterans without access to the internet.
Therefore, VA will continue to include
this information on the forms. However,
VA has worked to streamline the design
of these forms and the accompanying
information. VA makes no change based
on this comment.
CC. Comments of Scope
Two commenters inquired about VA’s
plan regarding staffing, personnel
issues, and training. These comments
are outside the scope of the rulemaking.
Part 21—Vocational Rehabilitation and
Education
VA received two comments
specifically related to Vocational
Rehabilitation and Education (VR&E).
One comment concerned VR&E’s lack of
automation and how that may impact
timely processing of payments to
facilities. The comment stated ‘‘VR&E is
antiquated and may need updates. For
example, it is not automized, at least for
certifying officials, which means some
certifications may fall into a ‘black
hole’. Schools often wait up to 6 months
to receive payment.’’ This comment is
not related to appeals processing and
does not affect the rule. Therefore, VA
makes no changes to the rule based on
this comment.
The second comment stated ‘‘VR&E is
also significantly understaffed. How
would current sta