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Proposed Rule

Board of Veterans' Appeals: Appeals Regulations and Rules of Practice-Jurisdiction

Document Details

Information about this document as published in the Federal Register.

Published Document

This document has been published in the Federal Register. Use the PDF linked in the document sidebar for the official electronic format.

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AGENCY:

Department of Veterans Affairs.

ACTION:

Proposed rule.

SUMMARY:

The Department of Veterans Affairs (VA) proposes amending the Appeals Regulations and Rules of Practice of the Board of Veterans' Appeals (Board) to clarify that the Board may address questions related to its jurisdiction in the first instance. VA also proposes to amend the Rules of Practice to provide procedures for notifying parties to Board proceedings, and their representatives, when the Board raises jurisdictional questions on its own initiative and to give parties the opportunity to respond.

DATES:

Comments must be received on or before June 4, 2001.

ADDRESSES:

Mail or hand-deliver written comments to: Director, Office of Regulations Management (02D), Department of Veterans Affairs, 810 Vermont Ave., NW., Room 1154, Washington, DC 20420; or fax comments to (202) 273-9289; or e-mail comments to OGCRegulations@mail.va.gov. Comments should indicate that they are submitted in response to “RIN 2900-AJ97.” All comments received will be available for public inspection in the Office of Regulations Management, Room 1158, between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday (except holidays).

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FOR FURTHER INFORMATION CONTACT:

Steven L. Keller, Senior Deputy Vice Start Printed Page 17841Chairman, Board of Veterans' Appeals, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 565-5978.

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SUPPLEMENTARY INFORMATION:

Initial decisions on claims for veterans' benefits are made at VA field offices throughout the nation. Claimants may appeal those decisions to the Board.

Filing an appeal with the Board is a 3-step procedure. First, the claimant who wishes to begin an appeal files a “Notice of Disagreement” with the VA office that made the decision with which the claimant disagrees. In response, that office sends the claimant a “Statement of the Case” that summarizes the evidence and the applicable law, tells the claimant what decision was reached on the disputed issues, and gives the reasons for each decision. After reviewing the Statement of the Case, the claimant must then file a formal, or “substantive,” appeal to complete the appeal. See generally 38 U.S.C. 7105 and 38 CFR part 19, subpart B, and part 20, subpart C.

In an August 1999 precedent opinion, VAOPGCPREC 9-99, VA's General Counsel held that the Board may address the question of the timeliness of a substantive appeal, regardless of whether the agency of original jurisdiction (AOJ) addressed such question, and may dismiss an appeal when it discovers in the first instance that no substantive appeal has been filed in a case certified to it for appellate review, or that the substantive appeal was not timely filed. The opinion noted, however, that the Board's dismissal of an appeal under those circumstances raises the possibility that a claimant will be prejudiced by not having been afforded the benefit of all procedural safeguards, such as the right to notice, the right to a hearing, and the right to submit evidence in support of a claim. Thus, it found that, if the Board intends to dismiss an appeal on this basis, it should afford the claimant adequate procedural protections regarding notice and the opportunity to be heard.

Furthermore, in a case discussing the Board's jurisdiction in another context, the United States Court of Appeals for the Federal Circuit stated that “* * * it is well-established judicial doctrine that any statutory tribunal must ensure that it has jurisdiction over each case before adjudicating the merits, that a potential jurisdictional defect may be raised by the court or tribunal, sua sponte or by any party, at any stage in the proceedings, and, once apparent, must be adjudicated.” Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996) (citations omitted, emphasis in the original).

This document proposes amending 38 CFR 20.101 to make it clear that the Board may address jurisdictional questions in the first instance. It would also make it clear that the Board may dismiss an appeal when it determines that it does not have jurisdiction, regardless of the AOJ's failure to adjudicate the jurisdictional question. This document also proposes to include in that section a requirement that the Board ensure that no prejudice to a claimant will result from the Board's sua sponte consideration of a jurisdictional question. Specifically, this document proposes to amend that section to provide for procedural safeguards, including notice and the opportunity to submit additional evidence and argument on the relevant jurisdictional questions and to address such questions at a hearing, before the Board dismisses an appeal based on jurisdictional defects. (Other regulations provide procedures for addressing questions related to the Board's jurisdiction when such questions are raised before or by the AOJ. See 38 CFR 19.27, 19.28, 19.33, 19.34). This document also proposes to amend that section to make it clear that certain restrictions in 38 CFR 19.9 and 20.1304 do not apply when the Board considers jurisdictional questions in the first instance. In addition, this document proposes to amend 38 CFR 19.35 to make it clear that certification of an appeal to the Board follows the filing of a timely Substantive Appeal. Finally, 38 CFR 20.203 would be removed, inasmuch as its subject matter would be included in revised § 20.101.

Paperwork Reduction Act

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

Executive Order 12866

This final rule has been reviewed by the Office of Management and Budget under Executive Order 12866.

Regulatory Flexibility Act

The Secretary hereby certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612, inasmuch as this rule applies to individual claimants for veterans' benefits and does not affect such entities. Therefore, pursuant to 5 U.S.C. 605(b), this proposed rule is exempt from the initial and final regulatory flexibility analyses requirement of sections 603 and 604.

There is no Catalog of Federal Domestic Assistance number for this proposed rule.

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List of Subjects

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Approved: February 14, 2001.

Anthony J. Principi,

Secretary of Veterans Affairs.

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For the reasons set out in the preamble, VA proposes amending 38 CFR parts 19 and 20 as follows:

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PART 19—BOARD OF VETERANS' APPEALS: APPEALS REGULATIONS

1. The authority citation for part 19 continues to read as follows:

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

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2. Section 19.35 is amended by revising the first sentence to read as follows:

Certification of appeals.

Following receipt of a timely Substantive Appeal, the agency of original jurisdiction will certify the case to the Board of Veterans' Appeals. * * *

* * * * *
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PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE

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

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

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4. Section 20.101 is amended by:

A. Revising paragraph (c).

B. Adding paragraphs (d) and (e).

C. Revising the authority at the end of the section.

The revision and additions read as follows:

Rule 101. Jurisdiction of the board.
* * * * *

(c) Appeals as to jurisdiction. All claimants have the right to appeal a determination made by the agency of original jurisdiction that the Board does not have jurisdictional authority to review a particular case. Jurisdictional questions which a claimant may appeal, Start Printed Page 17842include, but are not limited to, questions relating to the timely filing and adequacy of the Notice of Disagreement and the Substantive Appeal.

(d) Authority to determine jurisdiction. The Board may address questions pertaining to its jurisdictional authority to review a particular case, including, but not limited to, determining whether Notices of Disagreement and Substantive Appeals are adequate and timely, at any stage in a proceeding before it, regardless of whether the agency of original jurisdiction addressed such question(s). When the Board, on its own initiative, raises a question as to a potential jurisdictional defect, all parties to the proceeding and their representative(s), if any, will be given notice of the potential jurisdictional defect(s) and granted a period of 60 days following the date on which such notice is mailed to present written argument and additional evidence relevant to jurisdiction and to request a hearing to present oral argument on the jurisdictional question(s). The date of mailing of the notice will be presumed to be the same as the date stamped on the letter of notification. The Board may dismiss any case over which it determines it does not have jurisdiction.

(e) Application of 38 CFR 19.9 and 20.1304. The provisions of § 19.9 of this chapter requiring remand in certain instances shall not apply to proceedings to determine the Board's own jurisdiction. However, the Board may remand a case to an agency of original jurisdiction in order to obtain assistance in securing evidence of jurisdictional facts. The time restrictions on requesting a hearing and submitting additional evidence in § 20.1304 of this part do not apply to a hearing requested, or evidence submitted, under paragraph (d) of this section.

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

[Removed and Reserved]

5. Section 20.203 is removed and reserved.

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[FR Doc. 01-8302 Filed 4-3-01; 8:45 am]

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