NOVA, et al. v. the Secretary — Filed Petition

Case: 25-1399 Document: 3 Page: 1 Filed: 01/30/2025 No. 25-1399 United States Court of Appeals for the Federal Circuit NATIONAL ORGANIZATION OF VETERANS’ ADVOCATES, INC., DEREK DEBUS, AND WESLEY A. MCCAULEY Petitioners, v. SECRETARY OF VETERANS AFFAIRS, Respondent. __________________________________________________________________ AMENDED PETITION FOR REVIEW __________________________________________________________________ Roman Martinez Christine C. Smith Timothy Borgerson LATHAM & WATKINS LLP 555 Eleventh Street, NW Suite 1000 Washington, DC 20004 (202) 637-2200 roman.martinez@lw.com January 30, 2025 Counsel for Petitioners

Case: 25-1399 Document: 3 Page: 2 Filed: 01/30/2025 I. INTRODUCTION The National Organization of Veterans’ Advocates (“NOVA”), Derek Debus, and Wesley A. McCauley (collectively, “Petitioners”) hereby petition this Court pursuant to 38 U.S.C. § 502 and Federal Circuit Rule 15(f) to review two final rules adopted by the Department of Veterans Affairs (“VA”). The first was published in the Federal Register at 57 Fed. Reg. 4088-01 on February 3, 1992 (Ex. A), was originally codified at 38 C.F.R. § 20.609(h)(1)(iii) (1992), and is now codified at 38 C.F.R. § 14.636(h)(1)(iii). The second was published in VA’s Appeals and Reviews Manual M21-5 (“Manual”), Chapter 8, Section B(2)(i), on December 22, 2023 (Ex. B). “[R]ecognizing the importance of retaining legal counsel in both judicial proceedings and administrative appeals,” Congress has provided that veterans may hire paid counsel to assist with many aspects of the benefits claims process. Mil.-Veterans Advoc. v. Sec’y of Veterans Affs. (MVA), 7 F.4th 1110, 1135 (Fed. Cir. 2021). The claims process is “very complex and can be very overwhelming” to many veterans. Id. at 1136 (quoting 152 Cong. Rec. H8995-02, at H9018 (daily ed. Dec. 8, 2006) (statement of Rep. Jeff Miller)). Paid representation—whether through 1

Case: 25-1399 Document: 3 Page: 3 Filed: 01/30/2025 a VA-accredited attorney or agent—can make a significant difference to veterans in both their overall success rate and the amount of benefits they receive. Cf. Board of Veterans’ Appeals, Annual Report Fiscal Year (FY) 2023 at 53 (2023) (showing 13.1% benefits denial rate for veterans represented by an attorney compared to 21.6% for veterans with no representation).1 To encourage fair and efficient representation, federal law and regulations permit attorneys and agents to represent veterans on a contingency-fee basis, subject to guardrails. Such fee arrangements apply only to past-due benefits, and “the total fee payable to the agent or attorney may not exceed 20 percent of the total amount of any past-due benefits awarded.” 38 U.S.C. § 5904(d)(1); see also id. § 5904(d)(3). This arrangement ensures veterans have the opportunity to hire experienced counsel and incentivizes that counsel to obtain the greatest possible benefit for the veteran, while also protecting veterans from owing fees if their counsel is not successful in increasing their disability benefits award. 1 https://www.bva.va.gov/docs/Chairmans_Annual_Rpts/bva2023ar. pdf. 2

Case: 25-1399 Document: 3 Page: 4 Filed: 01/30/2025 Despite Congress’s recognition of the importance of representation in benefits cases, VA has repeatedly undermined veterans’ access to representation by limiting contingency fees to a percentage of the cash payment a veteran receives rather than a percentage of the past-due benefit awarded (as required by Section § 5904(d)). See, e.g., 38 C.F.R. § 14.636(h)(1)(iii); Rosinski v. Wilkie, 32 Vet. App. 264, 267-76 (2020); Jackson v. McDonald, 635 F. App’x 858, 860-64 (Fed. Cir. 2015); Snyder v. Nicholson, 489 F.3d 1213, 1215-20 (Fed. Cir. 2007).2 This has the effect of limiting—or even zeroing out—the fee an attorney or agent would otherwise be entitled to receive. An award of past-due benefits may not translate directly into a cash payment to the veteran for several reasons. For instance, federal law caps the amount of money that may be paid to incarcerated veterans. See 38 U.S.C. § 5313(a)(1). Federal law also prohibits veterans from 2 This is just one part of VA’s broader refusal to follow Congress’s commands and to permit veterans to hire paid counsel. See, e.g., MVA, 7 F.4th at 1135-41 (invalidating VA regulation prohibiting veterans from hiring paid counsel to assist with certain supplemental claims); Pet. for Review, Nat’l Org. of Veterans’ Advocs., Inc. v. Sec’y of Veterans Affs., No. 24-1530 (Fed. Cir. Mar. 1, 2024), Dkt. No. 1-2 (petition for review challenging VA rules prohibiting veterans from hiring paid counsel to assist with other supplemental claims). 3

Case: 25-1399 Document: 3 Page: 5 Filed: 01/30/2025 receiving both military retirement pay and disability benefits if their disability rating is less than 50%. See 10 U.S.C. § 1414; 38 U.S.C. § 5304. And as most relevant here, federal law permits VA to withhold payments when a veteran has an outstanding debt to the United States. See 38 U.S.C. § 5314(a)(1). A veteran may have a debt to the United States if, for example, he was unable to make the required co-pay for his medical services, or if VA previously paid him or his school more than what he was entitled by mistake. See, e.g., Dep’t of Veterans Affs., VA Debt Management, https://www.va.gov/resources/va-debt-management (last updated Mar. 27, 2024). When that happens, VA will generally withhold some or all of the veteran’s benefits until the debt is paid off. Although VA has long had a regulation preventing attorneys and agents from receiving fees out of past-due benefits when those benefits do not result in a cash payment to the veteran, VA did not generally enforce that regulation against representatives of veterans with outstanding debts. But in December 2023, VA changed the Manual to provide that “direct payment of fees under 38 U.S.C. § 5904(d) would be based on the amount available after [a veteran’s] indebtedness [has been] satisfied,” rather than the amount of past-due benefits awarded to the 4

Case: 25-1399 Document: 3 Page: 6 Filed: 01/30/2025 veteran as provided in Section 5904(d). Ex. B § 8.B.2.i (emphasis added); see also December 2023 Key Changes Redline § 8.B.2.i (Ex. C). Following that change, VA began denying direct payment of fees based on past-due benefits to attorneys and agents who successfully represented veterans with debts to the United States when those debts exceeded the amount of past-due benefits awarded. NOVA and its members, including Mr. Debus and Mr. McCauley, have been directly injured by this change in agency practice. Mr. Debus and Mr. McCauley have both been denied direct payment of fees, which prior to VA’s change of the Manual, they would have been granted. See Derek Debus Decl. ¶ 7 (Ex. D); Wesley McCauley Decl. ¶ 6 (Ex. E). Because the challenged Manual provision and underlying regulation are directly contrary to the governing law and this Court’s decisions, Petitioners petition this Court to set aside both rules as “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” and as “in excess of [VA]’s statutory jurisdiction.” 5 U.S.C. § 706(2)(A), (C). 5

Case: 25-1399 Document: 3 Page: 7 Filed: 01/30/2025 II. JURISDICTION This Court has jurisdiction over this petition for review pursuant to 38 U.S.C. § 502. Section 502 provides this Court with exclusive jurisdiction to review direct challenges to actions taken by VA “to which section 552(a)(1) or 553 of title 5 (or both) refers.” 38 U.S.C. § 502. The challenged regulation is a notice-and-comment rule governed by Section 553, and the challenged Manual provision is an interpretive rule governed by Section 552(a)(1). See Nat’l Org. of Veterans’ Advocs., Inc. v. Sec’y of Veterans Affs. (NOVA), 981 F.3d 1360, 1372-83 (Fed. Cir. 2020) (en banc). This petition for review is timely under the relevant six-year statute of limitations because the challenged Manual provision was issued in December 2023. See 28 U.S.C. § 2401(a); Fed. Cir. R. 15(f)(1); NOVA, 981 F.3d at 1383-86. Although the challenged regulation was issued more than six years ago, VA had not previously enforced it against Mr. Debus and Mr. McCauley, who were first impacted by the regulation after VA changed its Manual in December 2023. See Ex. D ¶¶ 4-7; Ex. E ¶¶ 4-10. Under the Supreme Court’s recent decision in Corner Post, Inc. v. Board of Governors of the Federal Reserve System, that renders their 6

Case: 25-1399 Document: 3 Page: 8 Filed: 01/30/2025 challenge timely. 603 U.S. 799, 825 (2024) (“An APA claim does not accrue for purposes of § 2401(a)’s 6-year statute of limitations until the plaintiff is injured by final agency action.”). And because NOVA’s associational standing is derivative of its members’ injuries, Mr. Debus’s and Mr. McCauley’s recent injures render NOVA’s challenge timely too. See MVA, 7 F.4th at 1123-28. III. PARTIES ADVERSELY AFFECTED NOVA, Mr. Debus, and Mr. McCauley are all adversely affected by the final rules and have standing to bring this challenge. As described in further detail below, NOVA is a national, not-for-profit organization of attorneys and agents who act as advocates for veterans seeking disability benefits. Mr. Debus is a VA-accredited attorney who routinely represents veterans seeking disability benefits, and Mr. McCauley is a VA- accredited agent who does the same. Mr. Debus and Mr. McCauley have standing because the challenged regulation and Manual provision “directly affect[] [their] fees—by restricting fees for work performed” on certain claims. MVA, 7 F.4th at 1128 (finding standing to challenge fee restriction). “[T]o establish standing, a plaintiff must show (i) that he suffered an injury in fact that 7

Case: 25-1399 Document: 3 Page: 9 Filed: 01/30/2025 is concrete, particularized, and actual or imminent; (ii) that the injury was likely caused by the defendant; and (iii) that the injury would likely be redressed by judicial relief.” TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021). Here, Mr. Debus and Mr. McCauley have suffered a concrete, particularized, and actual injury through VA’s denial of fees as a result of its new Manual provision. See Ex. D ¶¶ 4-7; Ex. E ¶¶ 4-10. Indeed, Mr. McCauley was recently denied fees for representing a client who has long had a debt to the United States, even though Mr. McCauley previously received fees for representing that same client. See Ex. E ¶¶ 4-6. Worse still, Mr. McCauley has even had an initial grant of fees be reversed when VA subsequently determined that his client had an outstanding debt. See id. ¶¶ 7-10. If this Court were to vacate the challenged regulation and Manual provision, Mr. Debus’s and Mr. McCauley’s harms would be redressed. See, e.g., MVA, 7 F.4th at 1128. NOVA also has associational standing to bring this petition. To establish associational standing, an association must demonstrate that “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested 8

Case: 25-1399 Document: 3 Page: 10 Filed: 01/30/2025 requires the participation of individual members in the lawsuit.” NOVA, 981 F.3d at 1368 (quoting Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977)). NOVA satisfies all three requirements. See MVA, 7 F.4th at 1128 (concluding veterans’ service organization had standing to challenge fee restriction). First, many of NOVA’s members would themselves have standing. VA has relied on the Manual provision to deny fees to several NOVA members, including Mr. Debus and Mr. McCauley. See Ex. D ¶¶ 4-7; Ex. E ¶¶ 4-10; Diane Boyd Rauber Decl. ¶ 9 (Ex. F); supra at 7-8. Second, this petition for review is germane to NOVA’s purpose. As noted above, NOVA is a not-for-profit organization of attorneys and agents who act as advocates for disabled veterans. NOVA’s purpose is to “aid veterans in obtaining benefits,” NOVA, 981 F.3d at 1371, including by “provid[ing] support … for the private bar representing veterans” and “develop[ing] and encourag[ing] high standards of service and representation,” Nat’l Org. of Veterans’ Advocates, Mission Statement, https://www.vetadvocates.org/cpages/mission-statement-2 (last visited Jan. 28, 2025); see also Ex. F ¶ 5; NOVA’s Bylaws (Ex. F-1). This petition aligns with those goals because it seeks to support the veterans bar and 9

Case: 25-1399 Document: 3 Page: 11 Filed: 01/30/2025 to ensure veterans continue to be able to hire private counsel, even when they have outstanding debts. Third, the challenges to the final rules do not require the participation of NOVA’s individual members. This petition for review presents a pure question of law: whether VA’s promulgation of each rule was legally valid under the standards set forth in the Administrative Procedure Act. The resolution of that question does not require any individualized proof. See MVA, 7 F.4th at 1123. IV. FINAL RULES THAT REQUIRE THIS COURT’S REVIEW The challenged regulation and Manual provision are inconsistent with the governing law and are arbitrary and capricious. The Federal Circuit has repeatedly construed 38 U.S.C. § 5904(d)(1) to require payment as a percentage of the total amount of past-due benefits awarded, not the total cash payment to the veteran. As the Federal Circuit has explained, “the ‘total amount of any past-due benefits awarded’” means “the sum of each month’s unpaid compensation—as determined by the [veteran’s] disability rating— beginning on the effective date and continuing through the date of the award.” Snyder, 489 F.3d at 1218; see also id. at 1219 (“The word ‘award’ 10

Case: 25-1399 Document: 3 Page: 12 Filed: 01/30/2025 is clear and unambiguous, and in the parlance of veterans’ benefits it means the amount stated as the award for success in pursuit of a claim for benefits.”). As the Court has further explained, “awarded compensation” is not always the same as “payable compensation.” Id. at 1218. A veteran may be awarded past-due benefits but still not receive a cash payment due to, for instance, her incarceration or her receipt of military retirement benefits. See id.; see Rosinski, 32 Vet. App. at 265. Nevertheless, attorney’s fees are calculated as a percentage of the past- due benefits awarded, not the cash payment the veteran receives. Snyder, 489 F.3d at 1219. Time and again, this Court has “rejected” VA’s contrary “interpretation that the amount of an ‘award,’ as used in § 5904, depend[s] on ‘the amount actually payable’ to the veteran.” Jackson, 635 F. App’x at 861 (citation omitted). In the challenged regulation and Manual provision, VA once again seeks to limit attorney’s and agent’s fees based on whether the veteran has received a cash payment or not—this time, due to an outstanding debt. But again, the law and this Court’s precedent is clear: “[N]othing in the statute requires . . . that money actually be paid out.” Id. at 862. 11

Case: 25-1399 Document: 3 Page: 13 Filed: 01/30/2025 In revising the Manual to deny fees when a veteran has an outstanding debt, VA cited to VA Office of General Counsel (OGC) Precedent 12-93, which states that direct payment of fees is limited to a percentage of the amount available after a veteran’s indebtedness is satisfied. See Ex. B § 8.B.2.i; see also VA OGC, O.G.C. Precedent 12-93 (Dec. 21, 1993) (“Op. 12-93”).3 But that OGC opinion does not justify the challenged rules for several reasons. First, the OGC opinion was issued in December 1993—more than ten years before this Court’s decision in Snyder. Thus, the OGC opinion lacks the benefit of this Court’s analysis of the governing statute in Snyder and follow-on cases. VA has never explained how its new Manual provision is consistent with that precedent. Second, the main rationale of the OGC opinion was that the challenged regulation (then codified at 38 C.F.R. § 20.609(h)(1)(iii) (1992)) required VA to deny direct payment of fees when the veteran had a debt that exceeded those fees. But again, the validity of that regulation has been called into question by this Court’s decision in Snyder. See, e.g., Snyder, 489 F.3d at 1219-20 & n.2 (questioning the regulation but 3 https://www.va.gov/ogc/docs/1993/PRC12-93.pdf. 12

Case: 25-1399 Document: 3 Page: 14 Filed: 01/30/2025 “leav[ing] unanswered the question of [its] validity” because it was “not properly before” the Court). Finally, the OGC opinion reasoned that contingency-fee agreements operate as assignments, and therefore, an attorney or agent could have no greater right to a cash payment than the veteran. See Op. 12-93 at 6-7. But even assuming that is the correct analogy, the assignment is with respect to the past-due benefits awarded, not the veteran’s cash payment. Thus, the attorney or agent has a right to 20% of the benefits awarded before those benefits are garnished by VA to offset the veteran’s existing debt. This rationale likewise provides no justification for the challenged rules. V. CONCLUSION For all of these reasons, NOVA and its members, including Mr. Debus and Mr. McCauley, are adversely affected by the unlawful final rules challenged above, and respectfully petition this Court to set aside both rules as “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” and “in excess of [VA]’s statutory jurisdiction.” 5 U.S.C. § 706(2)(A), (C). 13

Case: 25-1399 Document: 3 Page: 15 Filed: 01/30/2025 Dated: January 30, 2025 Respectfully submitted, /s/ Roman Martinez Roman Martinez Christine C. Smith Timothy Borgerson LATHAM & WATKINS LLP 555 Eleventh Street, NW Suite 1000 Washington, DC 20004 (202) 637-2200 roman.martinez@lw.com Counsel for Petitioners 14

Case: 25-1399 Document: 3 Page: 16 Filed: 01/30/2025 CERTIFICATE OF SERVICE I hereby certify that on January 30, 2025, I caused a copy of the foregoing Petition for Review to be served by CM/ECF upon the following: Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice United States Department of Justice Commercial Litigation Branch, Civil Division PO Box 480 Ben Franklin Station Washington, DC 20044 Email: c-natcourts.appeals@usdoj.gov /s/ Roman Martinez Roman Martinez

Case: 25-1399 Document: 3 Page: 17 Filed: 01/30/2025 EXHIBITS TABLE OF CONTENTS EXHIBIT DESCRIPTION A 57 Fed. Reg. 4088-01 (Feb. 3, 1992) (originally codified at 38 C.F.R. § 20.609(h)(1)(iii) (1992) and now codified at 38 C.F.R. § 14.636(h)(1)(iii)) B VA’s Appeals and Reviews Manual M21-5, Chapter 8, Section B (last updated Nov. 19, 2024) C December 2023 Key Changes Redline D Declaration of Derek Debus, with Exhibit D-1 (Jan. 27, 2025) E Declaration of Wesley A. McCauley, with Exhibits E-1 to E-5 (Jan. 24, 2025) F Declaration of Diane Boyd Rauber, with Exhibit F-1 (Jan. 27, 2025)

Case: 25-1399 Document: 3 Page: 18 Filed: 01/30/2025 EXHIBIT A

Case: 25-1399 Document: 3 Page: 19 Filed: 01/30/2025 4088 Federal Register / Vol. 57, No. 22 / Monday, February 3, 1992 / Rules and Regulations DEPARTMENT OF VETERANS the renumbering accomplished by recent not properly before it to the attention of AFFAIRS legislation. the agency of original jurisdiction. There were several general comments, One commenter offered several 38 CFR Parts 14, 19, and 20 in addition to specific comments paragraphs of criticism under the concerning individual amendments. heading "General Comments." These RIN 2900-AE02 One commenter objected to moving were essentially conclusionary the cross-references from individual paragraphs summarizing the nature of Appeals Regulations; Rules of Practice sections, where they are currently complaints about specific amendments. AGENCY: Department of Veterans located, to appendices to parts 19 and Except to the extent that they are Affairs. 20-asserting that this format was less addressed in the next two paragraphs. ACTION: Final regulations. helpful to the user of the regulations. VA these comments will be discussed in the agrees that this method of setting out context of specific amendments. SUMMARY: The Department of Veterans cross-references is somewhat less As might be expected with a proposal Affairs (VA) is issuing final regulatory desirable, but the change was made at of this size, some of the comments were amendments revising the Board of the direction of the Office of the Federal in opposition to each other and some of Veterans' Appeals' (BVA) Appeals Register. The BV A plans to issue an the comments were internally Regulations and Rules of Practice updated version of a pamphlet which inconsistent. One commenter essentially governing appeals practices and includes these regulations (VA Pamphlet suggested that many of these procedures within VA. Conforming 1-1) within the next few months. This amendments are contrary to the letter amendments have also been made to pamphlet version will use the old cross- and spirit of Public Law lD0-687, while other related VA regulations. The effect reference format. another observed that many of the of these amendments will be to revise The same commenter suggested that proposed amendments were and update these regulations to reflect the Rule of Practice references in part 20 straightforward implementations of that current law and practices and to provide be abandoned and that only the CFR Act. The farmer's criticisms included a information needed by individuals who citation be used. This suggestion has not complaint that the amendments were wish to appeal decisions made by VA been adopted. The Rule of Practice too adversarial, technical and legal, adjudicatory bodies to the BVA. The terminology is widely used by judicial while at the same time requesting such revisions ar-e necessary in order to and quasijudicial bodies, such as the additions as formal discovery provide appellate procedures which BVA. The use of Rule numbers, as proceedings. conform to current law and to inform the opposed to CFR citations for individual Some commenters were generally public about those procedures. Rules of Practice, is common in complimentary, expressing the view that EFFECTIVE DATE: These rules are appellate practice before the BVA. VA the amendments were well structured effective March 4, 1992. sees no benefit to be gained by and would facilitate an orderly abandoning this useful terminology, appellate process. One commenter noted r"OR FURTHER INFORMATION CONTACT: particularly at a time when attorneys-at• that many of the amendments codified Mr. Steven L. Keller, Counsel to the law who are very familiar with the Chairman [OlC), Board of Veterans' terminology are becoming increasingly existing practices. Appeals, 810 Vermont Avenue NW., involved in appellate practice before VA Comments concerning specific Washington, DC 20420 (202) 233-2978. field personnel and the BVA. amendments are set out in the material SUPPLEMENTARY INFORMATION: On Finally, this commenter felt that the which follows. August 18, 1989, VA published in the period of time allowed for public No comments, suggestions, or Federal Register (54 FR 34334) a notice comment was too short-noting objections were received regarding the proposing amendment of part 19 and the difficulty in preparing comments within amendments to part 14 and to§§ 19.1 addition of part 20 of title 38, Code of the time allowed. With respect to this and 19.2. There was a typographical Federal Regulations, to update the comment, the BV A notes that it is error in the heading of redesignated Appeals Regulations and Rules of generally willing to grant reasonable § 14.635 [formerly § 14.637). The word Practice of the Board of Veterans' requests for an extension of time within "office" was placed in the wrong Appeals. Conforming revisions to part which to comment if such an extension location. This has been corrected. With 14 were also proposed. proves necessary. This commenter did this correction, these amendments are VA received ten comments on the not request an extension. adopted as proposed. proposed regulations-four from service One commenter suggested that Three comments were received organizations, two from legal services regulations be promulgated "indicating concerning the amendment of§ 19.3. organizations allied with a service specifically how BVA will handle One commenter suggested that organization, two from Members of the 'errors' in previous AOJ or BVA paragraph (b) be revised to require that Board of Veterans' Appeals, one from a decisions 'discovered' in the course of a BVA Sections have three Members VA employee, and one from a private current appellate review." Methods of unless "overwhelming circumstances attorney-at-law. addressing error in a prior BVA decision prevent this." This suggestion has not Some commenters have referred to are set out in § 20.904; in § 20.1000, et been adopted. The language proposed various sections of the Veterans' seq.; and in a notice of proposed conforms to the provisions of 38 U.S.C. Judicial Review Act (Pub. L. 100-687). In rulemaking published elsewhere in this 7102. While the Chairman of the BVA the remarks which follow, provisions of issue of the Federal Register. VA does has divided the BVA into three-Member the Act which have been codified will not believe that additional regulation on Sections, circumstances might arise in be referred to by their section numbers the subject of the correction of error in the future which would require an en in title 38, United States Code [as prior rating decisions by the agency of bane approach in some instances. In amended by Pub. L. lQ0-687), rather original jurisdiction is necessary at this addition, as contemplated by 38 U.S.C. than by section numbers of the Act. All time. The Board may always correct 7102(a)(2) and by paragraph [d) of this references to section numbers in title 38, error in prior rating decisions which are section, there will inevitably be times United States Code, throughout this properly before it on appeal and may when less than three Members are document have been revised to reflect call errors in determinations which are available in an individual Section due to

Case: 25-1399 Document: 3 Page: 20 Filed: 01/30/2025 Federal Register / Vol. 57, No. 22 / Monday, February 3,-1992 / Rules and Regulations 4089 the absence of a Member of the Section, removed. In their place, a cross- Due to the withdrawal of proposed a vacancy on the Board, or the inability reference to the more specific standards paragraph 19.7(b), proposed paragraph of a Member assigned to a Section to set out in § 19.12 has been added. 19.7(c) has been redesignated as 19.7(b). serve. Editorial changes have also been made With these changes, the amendment is One commenter charged that the in paragraph 19.3(a) to make it clearer adopted. language in paragraph (b), noting that a that the Deputy Vice Chairmen are No comments, suggestions, or Chief Member may be redesignated as a chosen from Members of the Board. objections were received regarding the Member, was added under the guise of With these changes, the amendment to amendments to § § 19.8 and 19.9. being an editorial change and was an § 19.3 is adopted. Information has been added to I 19.8 to inappropriate provisio.n allowing the No comments, suggestions, or make it clearer that BV A decisions in "demotion" of "independent decision objections were received regarding the contested claims which are provided to makers." This revision was not amendment of § 19.4. This amendment is the contesting claimants will include described as an editorial change. It was adopted as proposed. only information pertinent to the clearly identified in the notice of Three comments were received contested issues. With this addition, proposed rule making. (See 54 FR 34334.) concerning § 19.5. Each commenter these amendments are adopted as The position of Chief Member of a BVA noted that this section, which lists the proposed. Section is one which adds criteria governing the disposition of administrative tasks, which are entirely Proposed I 19.10 has been withdrawn appeals by the BVA, omitted a reference and this section number is reserved. The separate and apart from decision to decisions of the United States Court making in individual cases before the General Counsel of the Department of of Veterans Appeals (COVA). VA is of Veterans Affairs issued a Precedent BVA, to the normal duties of a Member the opinion that no such reference is of the BVA. It does not carry with it any Opinion on August 27, 1990, which necessary. VA, of course, recognizes concluded, in essence, that statutory increase in pay or entitlements. Chief that the BVA will be bound by court Members, as such, are judged on their changes brought about by the Veterans' decisions in some cases. Judicial Review Act (Pub. L. 100-687) administrative skills and not on their decision making record. 38 U.S.C. Proposed § 19.6 has been withdrawn had the effect of eliminating "obvious 7102(a)(1) provides that the Chairman and this section number is reserved. error" as the standard for review by a may designate the Chief Member of a This paragraph concerned the reconsideration Section after a motion BVA Section. This regulation merely composition of Board of Veterans' for reconsideration has been granted. makes clear what was implicit in that Appeals hearing panels, and it is being (See O.G.C. Precedent Opinion 89-90, 56 authority, that one individual may be withdrawn because it was more FR 1225.) This change also eliminated designated in place of another when restrictive than necessary regarding the the principal basis for proposed § 19.10 appropriate. Such a reassignment does composition of hearing panels. Two which, in most cases, limited the not involve any loss of pay or comments were received, neither of evidence which could be considered by entitlements and does not constitute a which relates to the reason for the a reconsideration Section to that which "demotion." withdrawal of this paragraph. was ofrecord at the time that the One commenter voiced the opinion One comment was received on § 19.7. decision being reconsidered was that 38 U.S.C. 7102 and 7103 require that This commenter suggested that the rendered. a minimum of two Members participate phrase "and upon consideration of all One comment was received regarding in an appeal and that the use of the evidence and material of record and § 19.11. Proposed paragraph (c) provided word "Members" at the end of applicable provisions of law and that when a traveling BVA Section is paragraph (d) is therefore contrary to regulations," found in 38 U.S.C. 7104(a), expanded to address the law. VA does not agree with this be added to the closing sentence of reconsideration of a prior BVA decision statutory interpretation. While it would paragraph (a). This suggestion has not involving radiation, Agent Orange, or be unusual to have two vacancies, been adopted. This paragraph already asbestos exposure, the additional absences, or Members who were unable provides that decisions of the BVA are Members of the expanded Section will to serve in an individual section at any based upon the entire record. The include Members specializing in those given time, VA is of the opinion that "entire record" necessarily includes "all issues. The commenter suggested that proceeding with one Member is evidence and material of record." this requirement for Members permissible under 38 U.S.C. Governing criteria, such as the law and specializing in particular issues be 7102(a)(2)(A)(iii) under such regulations, are the subject of§ 19.5. expanded to include post-traumatic circumstances. The use of the plural Adding the suggested phrase would be stress disorder and "complex medical does not represent a change from the redundant. causation issues such as the dates of prior regulation on which this paragraph VA is withdrawing proposed inception of a veteran's cancer or other was based. paragraph 19.7(b). That paragraph disease." The same commenter also objected to suggested (in part) that issues on appeal This suggestion has been adopted in the use of the phrases "other good could be disposed of by remand or by part. Post-traumatic stress disorder has cause" and "participate effectively" in vacating a prior decision of the Board been added, as suggested. Familiarity paragraph (d), asserting that these with respect to the issues. That was not with this area is helpful in ensuring provisions are contrary to the provisions accurate. A remand serves to direct complete development of the appellate of 38 U.S.C. 7102(a)(2)(A) and violate a further development prior to the record. Material regarding medical "claimant's" rights to an unbiased BVA appellate disposition of the issues. It causation issues has not been added. panel. VA does not agree with this does not "dispose" of an issue on Medical causation issues must be statutory interpretation, nor does this appeal. Neither does vacating a prior decided on the basis of the evidence of amendment bring about any impairment Board decision dispose of an issue. record (see Colvin v. Derwinski, U.S. of an appellant's rights. VA does agree, When a prior decision is vacated, it is Vet. App. No. 90-196 (Mar. 8, 1991)). In however, that the terms objected to are normally followed by a new decision cases of extraordinary complexity, somewhat vague and _they have been which disposes of the issue. Members have the option of seeking the

Case: 25-1399 Document: 3 Page: 21 Filed: 01/30/2025 4090 Federal Register / Vol. 57, No. 22 / Monday, February 3, 1992 / Rules and Regulations opinion of an independent medical the statutory authority cited, however, amendments to §§ 19.27 and 19.28. specialist. (See I 20.901, infra.) and this authority has been added in the These amendments are adopted as Section 19.11. as proposed, continued interest of clarity. With this addition, proposed. the long-existing practice of allowing a the amendment is adopted. Two comments were received three-Member BVA Section to hear No comments, suggestions, or concerning f 19.29. cases before the BVA on objections were received regarding the One commenter suggested that this reconsideration when none of the amendment of § 19.13. The General section be modified to require a Members who participated in the Counsel of the Department of Veterans discussion of applicable COVA case original decision is available. 38 U.S.C. Affairs issued a Precedent Opinion on law and of any applicable precedent 7103(b} now requires that all May 17, 1990, which had the effect of ooinions of the General Counsel of the reconsideration actions be heard "by an invalidating the "administrative n·epartment of Veterans Affairs in the expanded section of the Board." The allowance" procedures of the BVA both Statement of the Case as an aid to references to three-Member Sections in its current Rules of Practice and in unrepresented appellants. While VA have therefore been withdrawn. these proposed regulations. (See O.G.C. appreciates the concern which An editorial revision has been made Precedent Opinion 11-90, 55 FR 27756.) motivated this suggestion, it has not to change the word "panel" to "Section" Such opinions are binding upon the been adopted. This regulation, and the in the section heading and in the text of BVA. (See 38 U.S.C. 7104(c).) statute upon which it is based, already this section when the reference is to a Accordingly, all references to those requires that the Statement of the Case reconsideration Section. This change procedures have been withdrawn from include the reasons for each has been made so that the amendment these proposed amendments. The determination of the agency of original will parallel the language which appears material withdrawn Includes proposed jurisdiction with respect to which in 38 U.S.C. 7103{b). paragraph 19.13(b}. Proposed paragraph disagreement has been expressed. This With the8e revisions. the proposed 19.13(cJ has been redesignated as would include decisions by courts of amendment is adopted. 19.13(b). With these changes, this competent jurisdiction and opinions by Two comments were received proposed amendment is adopted. the General Counsel when they are concerning proposed section § 19.12. Proposed I 19.14 has been withdrawn. applicable. Essentially, the commentera feel that This proposed regulation dealt with the The second commenter suggested that paragraph (c) gives the Chairman too manner in which written decisions of the phrase "and a discussion of how much authority over other Members of the BV A should be prepared when the such laws and regulations affect the the BVA. is beyond statutory authority, case involves a prior rating determination" be deleted from and should be removed.VA does not determination by the agency of original paragraph (b), contending that the agree. This paragraph allows the jurisdiction which has become final due phrase ''.would constitute a repetition of Chairman to disqualify a Member of the to the failure to file a timely appeal to information already required by Board from participating in a particular the BVA. Decisions by COVA, issued subparagraph (cJ." This suggestion has appeal if the Member gives the after this regulation was published in not been adopted. The language in appearance of bias, baa participated in a proposed form, have altered the BVA's question is a direct quotation of prior administrative appeal in the same traditional approach to prior "final" language added to 38 U.S.C. 7105(d}(1} case on the same issue (and who might adjudicative actions. (E.g .. see Manio v. by Public Law 100-687. The language naturally tend to be biased in favor of Derwinski, U.S. Vet. App. No. 90-86 his or her prior decision). or is unable or does not duplicate the language in (Feb. 15, 1991); Colvin v. Derwinski, U.S. paragraph (c). The new statutory unwilling to act in the case. VA believes Vet. App. No. 90-196 (March 8. 1991); that a procedure for Member language appears to require a discussion and Smith v. Derwinski, U.S. Vet. App. of why various statutes and regulations disqualification under these No. 89-13 (March 15, 1991).) The circumstances is lawful and is essential. proposed regulation was not in complete are applicable to a particular case while Impartiality is basic to an equitable accord with these decisions and paragraph (c} requires a discussion of appellate process. (See, for example, COVA's opinions provide sufficient why a particular decision was made. Canons 2 "A Judge should avoid guidance concerning BVA decision This decision could be (and often is) on impropriety and the appearance of preparation in this area. a purely factual basis as opposed to a impropriety in all his activities" and 3 No comments, suggestions, or technical legal basis. While there can be "A Judge should perform the duties of objections were received regarding the some overlap, the requirements of the his office impartially and diligently" of amendments to § § 19.15 and 19.25. two paragraphs are not interchangeable. the ABA Code of Judicial Conduct.) BVA Proposed § 19.15 has been redesignaled This amendment is adopted as decisions are to be made on the basis of as § 19.14 in view of the withdrawal of proposed. "the entire record in the proceeding and proposed§ 19.14. The reference to One comment was offered concerning upon consideration of all evidence and proposed § 19.6, which has been § 19.30. The commenter suggested, in material of record and applicable withdrawn, has been deleted. With essence, that VA require that documents provisions of law and regulation." (38 these revisions, these amendments are provided to representatives be sent by U.S.C. 7104(a)). They are not lo be made adopted as proposed. mail and that using a "dr~box," as is on the basis of personal prejudice. 38 No comments, suggestions, or done at some VA Regional Offices, be U.S.C. 7102 provides options to the objections were received regarding the forbidden. It was alleged that the "drop- Chairman, including substitution of amendment to f 19.26. However, this box" service was not effective, but no another Member, when a Member of a section has been revised in response to explanation of why this is the case was BVA Section is unable to serve. VA is of comments offered in connection with given. This suggestion has not been the opinion that a Member who is § 20.201. See the discussion concerning adopted and the amendment is adopted biased or who ia unwilling to serve in a § 20.201, infra, for information , as proposed. This delivery control is not particular case has demonstrated an concerning this change. The amendment, proper subject matter for these inability to serve within the meaning of as revised, is adopted. regulations. Further, VA is not aware of this statutory provision. VA does feel No comments, suggestions, or any special problems with "drop-box" that 38 U.S.C. 710I should be included in objections were received regarding the service, whir.h is more expeditious than

Case: 25-1399 Document: 3 Page: 22 Filed: 01/30/2025 Federal Register / Vol. 57, No. 22 / Monday, February 3, 1992 / Rules and Regulations 4091 mail delivery and which is a relatively given, the veteran would certainly be not serve to confer jurisdiction on the convenient means of document delivery correct and the hearing officer would be BV A with respect to a particular issue. for both VA and representatives. It is in error. A veteran's oral description of The second commenter offered the same suggested that any problem with his or her symptoms in a case in which comment on this section as was offered document delivery at any particular the nature or severity of a disability is at on § 19.30 concerning the use of "drop- field office be brought to the attention of issue would very clearly be "testimony boxes" to deliver documents to the director of that office so that concerning the relevant facts" in the representatives. The same response corrective action may be taken. terms used by the amended regulation. applies. Three comments were received on Statements of fact made by appellants Proposed § 19.36 was essentially a § 19.31. The current equivalent and witnesses are evidence which must duplicate of a proposed amendment of regulation {38 CFR 19.122) provides, in be weigh~d by the decision maker. 38 CFR 19.174(a) which had been part, that a Supplemental Statement of While these comments have been published for public comment on July 6. the Case is required when additional considered, § 19.31 is adopted as 1989. (54 FR 28445) The final version of pertinent evidence is received and that a proposed. 38 CFR 19.174 was published on May 15, Supplemental Statement of the Case is One comment was submitted 1990. (55 FR 20144) Several changes not required following a hearing before concerning § 19.32. This commenter arising out of comments received were field personnel when no additional suggested that the word "response" in incorporated into the final rule. These pertinent evidence is received. The the second sentence be changed to included a requirement that appellants amended regulation makes it clear that "Substantive Appeal." VA agrees that and their representatives be notified of the evidence referred to includes this would be preferable. This section is various restrictions concerning changes testimony concerning relevant facts or adopted, with that change. in representation, requests for personal expert opinion, as well as documentary No comments, suggestions, or hearings, and the submission of evidence, but that argument is not objections were received regarding the additional evidence after an appeal has evidence. amendments to H 19.33 and 19.34. been certified to the BVA. A conforming Two commenters suggested that a These amendments are adopted as revision has been matle to § 19.36 and, Supplemental Statement of the Case be proposed. with this revision, the amendment is required to answer arguments advanced One comment was received on adopted. at a hearing held by the agency of § 19.35. The commenter asked that One comment was received on original jurisdiction. VA does not language be included to require that the § 19.37. This commenter felt that believe that this further requirement is issues listed in the appeal certification paragraph (a) should be revised to necessary or desirable. The purpose of (VA Form 1-8) be the same as the issues delete the language providing that a Statements and Supplemental covered in the Statement of the Case Supplemental Statement of the Case Statements of the Case is to provide and any Supplemental Statements of the need not be issued when duplicate appellants with the data which they Case. That is normally the correct evidence is received which has already need, but may not have, to prepare their practice. Nevertheless, this suggestion been discussed in a Statement of the appeal to the BV A-a summary of the has not been adopted. Completion of VA Case or Supplemental Statement of the pertinent evidence, information Form 1-8 is accomplished for Case. VA finds no merit in this concerning pertinent laws and administrative purposes. Primarily, it suggestion. Appellants and regulations, and the decision of each serves as a last-minute appeal representatives often submit duplicate issue and a summary of the reasons for processing check list for use by VA field copies of documents which they have each decision. (38 U.S.C. 7105(d)(1)). facilities prior to transfer of the appeal submitted before or copies of records They are not appellate decisions. to the BVA. The appeal certification which they obtained from VA in the first Addressing arguments raised by does not have any effect on the BVA's place. No useful purpose is served by appellants is the function of the jurisdiction. Details of how the VA Form again discussing evidence which has appellate decision. The BVA is not 1-8 is completed are best left to VA already been discussed. bound by an agency of original administrative manuals. For the same Two comments were received jurisdiction's position with respect to reason, other details concerning concerning § 19.38. The proposed arguments advanced by appellants and completion of the form have been section provides that development their representatives. withdrawn and the language of the completed by the agency of original The third commenter asserted that section has been simplified. As jurisdiction pursuant to a remand from language should be added to more simplified, the amendment is adopted. the BVA should be reviewed by that clearly define the difference between Two comments were received agency to determine if that development testimony and argument, using as an concerning § 19.36. shows that the benefit sought on appeal example a situation in which a veteran One commenter suggested that the should be allowed. One commenter might regard his or her own statement of notice of certification of an appeal to the suggested that a review of the entire facts concerning the symptomatology BVA include notification as to the issues record be required and felt that the associated with his or her disability as being certified. VA does not believe that proposed section seemed to indicate testimony while a hearing officer "or that is necessary. Appellants and their that the review would be limited to only other responsible person" might regard representatives are informed of the the information developed as a result of the same statement as argument. This issues considered to be in an appellate the remand. It is certainly not VA's suggestion has not been adopted. While status through the Statement and intent that the post-remand development there may be certain gray areas, these Supplemental Statements of the Case. be reviewed in a vacuum. Changes have terms are relatively well understood. It The appeal certification primarily been made to make it clear that the is impossible to anticipate every functions as a check list for the agency review is to take into consideration the variation which may arise. Disputes of original jurisdiction to insure that all evidence which was previously of concerning what is testimonial evidence appeal processing procedures have been record. The other commenter noted that and what is argument are best resolved completed prior to the transfer of the the 30-day period referenced in this on a case by case basis. In the example case to the BVA. The certification doe& section is in conflict with the provisions

Case: 25-1399 Document: 3 Page: 23 Filed: 01/30/2025 4092 Federal Register / Vol. 57, No. 22 / Monday, February 3, 1992 / Rules and Regulations of§ 20.302(c). The commenter is correct proceedings assigned to them, to other Two comments were received on and this error has been corrected. With Members of the Board who have been § 20.101. With one exception, both these changes, the amendment is designated as the Chief (or Acting ChieO concern the third sentence of paragraph adopted. Member of a Section or who are acting (a), which is similar to language in No comments, suggestions, or as the presiding Member of a hearing proposed § 19.5, and both comments are objections were received regarding the panel. It should also be borne in mind essentially the same as the comments amendments to U 19.50 through 19.53, that the Chainnan is, in fact, a Member offered concerning § 19.5, supra. The 19.75 through 19.77, and 19.100 through of the Board (see 38 U.S.C. 7101) and has same response applies. One of the 19.102. Material has been added to the same decision making authority as commenters also felt that the statement §§ 19.101 and 19.102 to make it clearer any other Member of the Board-in in paragraph (c) that only the Board of that information which is provided to addition to special authority conferred Veterans' Appeals will make final the contesting claimants in contested by law in certain instances (e.g., see 38 decisions with respect to its jurisdiction claims is limited to information U.S.C. 7103). In addition, he or she is the might mislead readers to believe that the pertinent to the contested issues. With chief administrative officer of the Board United States Court of Veterans this addition, these amendments are in a position not unlike that of the chief Appeals could not review such a adopted as proposed. judge of an appellate court. It is, of determination. The statement, of course, One commenter did suggest that VA's course, impossible to anticipate every applies only to determination of BVA substantive appeal form (VA Form 1-9} procedural contingency when writing jurisdiction within VA. The statement be annotated to show that requests for Rules of Practice and, from time to time, has been modified to reflect that such a hearings before traveling sections of the procedures must be devised to deal with determination may be subject to judicial BVA should be submitted to the unique situations. Occasions arise when review. With this change, the applicable VA field office, rather than to special procedures must be devised in amendment is adopted. the BV A, as required by § 19.75. This cases which are not yet before a BV A One comment was offered concerning form was extensively revised in October Section or in which Section action has § 20.102. The commenter indicated that 1989 and now includes this information. been completed. The requirement that the intent of paragraph (d) was unclear, A commenter suggested that a cross- any necessary ad hoc procedure be inasmuch as it appeared to authorize reference from § 19.76 to § 20.704 be consistent with existing statutory and any Member of the BV A to rule on a added to appendix A to part 19. VA regulatory authorities provides motion for a subpoena or to quash a agrees that this would be helpful and protection from abuse. subpoena under proposed§ 20.711(e) this cross-reference has been added. One comment was received and (f), respectively. VA agrees that References to proposed§§ 19.13(bJ and concerning § 20.3. The commenter stated clarification is in order. This comment 19.14, which have been withdrawn, have that "legal intern" should be defined as and comments in response to § 20.609{i}, been removed. The appendix is adopted, a law student, rather than as a graduate infra, bring to light the fact that this with these revisions. of a law school who has not yet been proposed regulation did not make it One comment was received on§ 20.1. admitted to the bar, and that the clear that the various authority It was suggested that the introductory exercised by BVA Members assigned to clause "In accordance with the agency's definition of "legal intern" proposed was policy of providing assistance to the actually the appropriate definition of BVA Sections is to be exercised in the appellant," be restored to what is now "law clerk." The proposed definition of context of proceedings which have been paragraph (b). The operative language of "legal intern" is consistent with BVA assigned to them for disposition in the prior section "These rules are to be practice and with the definition in accordance with the provisions of 38 construed to secure a just and speedy "Black's Law Dictionary," which defines U.S.C. 7102(c). Appropriate material has decision in every appeal" has been an intern as "an advanced student or been added to paragraphs (c} and {d) to retained. The omitted introductory recent graduate in a professional field." clarify this aspect of the regulation. clause adds nothing of substance. This (Black's Law Dictionary 732 (5th ed. While not noted by a commenter, there amendment is adopted as proposed. 1979). A separate definition of "law is one typographical error in paragraph One comment was received regarding student" is provided. Inasmuch as these (d). The reference to§ 20.609(g) should § 20.2. This commenter alleged that this terms are clearly defined in this section, be to § 20.609(i). This error has been section (which provides that the no confusion should result. corrected. A reference to proposed Chairman may prescribe procedures "Cemetery" has been added to the list § 20.1101, which has been withdrawn, consistent with the provisions of title 38, of VA facilities which are included in has been removed. The amendment, United States Code, and the BVA's the definition of "agency of original with the revisions noted, is adopted. Rules of Practice when a situation arises jurisdiction" as an editorial change. No comments, suggestions, or which is not covered by any existing Cemeteries were previously included via objections were received regarding the rule or procedure) removes authority the phrase "or other Department of amendment of § 20.200. This amentlment from Chief Members which they Veterans Affairs facility." is adopted as proposed. previously had, that it is contrary to the Paragraph 20.3(k), as published, Three comments were received intent of Public Law 100--687, and that it contained typographical errors. In the concerning § 20.201. is inefficient inasmuch as Board second sentence, "60 days" should read One commenter noted that this Sections will be forced to delay "90 days" and the reference to section refers to filing a Notice of processing of a case while it is routed § 20.609(g) should have been to Disagreement with an adjudicative through the Chairman's office. VA does § 20.609(i). These errors have been determination by an agency of original not agree with these remarks and the corrected. jurisdiction and suggested that a amendment is adopted as proposed. With these revisions, § 20.3 is provision be included specifically This authority has not been removed adopted. addressing appeal of determinations by from Chief Members. Section 20.102, No comments, suggestions, or VA's Veterans Health Administration paragraph (c), extends this authority to objections were received regarding the (VHA)-apparently under the mistaken the Vice Chairman; the Deputy Vice amendment of § 20.100. This amendment belief that the term "agency of original Chairmen; and, in connection with is adopted as proposed. jurisdiction" applies only to field

Case: 25-1399 Document: 3 Page: 24 Filed: 01/30/2025 Federal Register I Vol. 57, No. 2Z I Monday, February 3, 199Z / Rules and Regulationa 4093 facilities of the Veterans Benefits issue being appealed be requested when an opportunity to contest the matter Administration. When a VHA facility . a Notice of Disagreement is received when the BVA questions the adequacy has made the determination being following a multiple-issue determination of the Substantive Appeal. appealed, it is the "agency of original and it is not clear which issue, or issues, One CQmmenter objected to a jurisdiction." (See f 20.3(a).) the claimant desires to appeal. VA perceived requirement for "the claimant The commenters raised objection to strongly supports this policy and, in to lay out all specific arguments in the what are alleged to be unwarranted view of the concerns raised here, has Substantive Appeal," observing that it procedural requirements for Notices of made it applicable throughout VA by had previously been sufficient to Disagreement, including the use of the adding this requirement to I 19.26 address issues in general terma and to word "must" in the second sentence and "Action by agency of original be more specific in "the presentation to the requirement that the issues with jurisdiction on Notice of Disagreement." the BVA" (apparently a reference to which disagreement is being expressed The BVA may also remand cases for formal and informal hearing be identified. VA does not agree that issue clarification when necessary. With presentations and/or appellate briefs). these provisions are unwarranted. The this addition, § 20.201 is adopted as There is nothing in the proposed word "must" to which the objection is proposed. • amendment which changes. the practice raised occurs in the following sentence: Three comments were also received described. That ia. this amendment "While special wording is not required. concerning I 20.202. neither precludea nor discourages the Notice of Disagreement must be in One commenter objected to the raising additional arguments. or further terms which can be reasonably ' requirement that the issues being explaining prior arguments, concerning construed as disagreement with that appealed be identified. VA believes that appealed isauea in presentations determination and a desire for appellate this requirement is appropriate for the subsequent to the Substantive Appeal review." VA has always been, and will same reasons noted in conjunction with Thia proposed amendment ia adopted. continue to be, liberal in determining a similar objection to I 20.201. It ia also with the correction de1cribed above. what constitutes a Notice of noted that one of the purposes of the No comments, sugeations. or Disagreement. The continuation of this current statutory appellate process ia to objections were received regarding the policy is demonstrated by the lack of a narrow appeals to those iaaues which an amendments to H 20.203, 20.2.0t, 20.300 requirement for special wording and the appellant really wants to appeal after and 20.301. These amendments ue use of the phrase "can be reasonably the reasons for a detennination have adopted as proposed. construed." Nevertheless, some been explained to him or her in the One comment was received on indication which reasonable persons Statement of the Case and that 38 U.S.C. § 20.302. Thi1 commenter feels that the can construe as disagreement with a 7105(d)(3) provides that the benefits language in paragraph (c} which extends determination by an agency of original sought on appeal muat be clearly the time to respond to a Supplemental jurisdiction and a desire to appeal that identified in the formal appeal Statement of the Case to CIO days should determination is at the very heart of Two commenter& objected to the use not be adopted and that the response what constitutes a Notice of of the word "must," rather than time should remain at 30 days. As the Disagreement. Without such an "ahould" in conjunction with the commenter notee and ff waa 1et forth in expression, the communication may be requirement that the SubatantiYe Appeal the notice of proposed rulemaking, the something, but it is not a Notice of set out specific argument relating to reason for this change is that when new Disagreement. Not much ie required, but enora of fact or law made by the agency issues are included in a Supplemental the communication must be of original jurisdiction. Thia objection is Statement of the Caae it becomes the recognizabJe as a Notice of well taken in view of the word "should" Statement of the Case aa to the new Disagreement. in the statute on which this provision is issues. The law provides that an Important consequences flow from based l38 U.S.C. 7105(d)(3)J and thia baa appellant has 60 days after receiving a filing a Notice of Disagreement. As been conected. Statement of the Cne within which to provided in 38 U.S.C. 7105(a}, appellate One commenter stated that ''we are file a Substantive Appeal. (See 38 U.S.C. review is initiated by a Notice of very much concerned by the new 7105fd)(3).) The commenter argues that Disagreement. The Notice of authority created by this 1ection which new ilsuea should not be included in Disagreement is jurisdictional-that is, would allow the BVA to unilaterally Supplemental Statements of the Case. without a Notice of Disagreement, the dismiss an appeal which does not allege While VA understands that the "purest" BVA does not have jurisdiction over an an error of fact or law." Thia authority is procedure might arguably be to require a issue (except as provided int 19.13). not new. 38 U.S.C. 7106(d)(5) specifically separate Statement of the Case Further, it would not be fair for the BVA states that "The Board of Veterans' concerning new issues raised, that i• not to assume jurisdiction over an issue Appeals may dismiss any appeal which the procedure used by VA regional before a claimant, who may still have fails to allege specific error of fact or offices in 110D1e cases. There is nothing months remaining before the time to law in the determination being legally wrong with consolidating the appeal lapses, has completed his or her appealed." VA believes that it is appeals, provided that the agency of preparation and is ready to initiate an appropriate that this fact be brought to original jurisdiction bears in mind that appeal as to that issue. Thus, it is vital the attention of appellants and their when a new issue is raised and denied. that the BVA be able to tell which issues representatives in this Rule of Practice. there must be a Notice of Disagreement have been appealed when several VA also notes that the BVA has been, with respect to the new issue before it is determinations have been made which and will continue to be, very liberal in included in a Statement or SUpplemental are appealable. this area. Thia Rule of Practice also Statement of the Case. This amendment It is not VA's intent to deprive anyone provides that 'The Board will construe is adopted aa proposed. of his or her right to appeal. As one such arsurnenta in a liberal manner for The same commenter raised an commenter pointed out, a Department of purpoees of determining whether they objection to l 20.303 with the following Veterans Benefits operational mannal raise issues on appeal • • "" and comment: "Please refer to comments (MZl-1, paragraph 18.03b} requires that § 20.200 provides that appellants and pertaining to the "60-day period" under clarification sufficient to identify the representatives will be given notice and the preceding paragraph." The

Case: 25-1399 Document: 3 Page: 25 Filed: 01/30/2025 4094 Federal Register / Vol. 57, No. 22 l Monday, February 3, 1992 l Rules and Regulations paragraph referred to was the one response to the comments concerning participate in hearings (with containing the above objection to I 20.302, this suggestion has not been professional supervision by attorneys- § 20.302. Apparently, the objection adopted and the amendment is adopted at-law) for a number of years. VA relates to the reference to a 60-day as proposed. makes no assumption that law students period for responding to a Supplemental No comments, suggestions, or are especially prone to unprofessional Statement of the Case. The language in objections were received regarding the conduct and recognizes that most of this amendment has not been modified amendments to 11 20.502 through 20.504 these individuals are sincere and for the same reasons noted in the and 20.600 through 20.605. Section dedicated. It also recognizes the discussion concerning § 20.302. The 20.603(a), as proposed, was slightly more valuable experience which such amendment is adopted as proposed. restrictive than 38 CFR 14.629(c) with participation provides in the training of No comments, suggestions, or respect to the documentation required to law students. Unless independently objections were received regarding the appoint an attorney-at-law as a qualified, however, these individuals are amendment of § 20.304. This amendment representative in VA proceedings. not representatives. They may be future is adopted as proposed. Section 20.603(a) has been revised to representatives in training, but they do One commenter feels that the make it consistent with,38 CFR 14.629(c). not have the same status as presumption in I 20.305 that a document With this revision, these amendments representatives and they are not subject had been postmarked 5 days prior to it's are adopted as proposed. to the disciplinary procedures described receipt when the actual postmark is not Two comments were received in 38 CFR 14.633. Rather, they are available is too liberal and that a three concerning § 20,606, both addressed to permitted to assist an attorney-at-law day period is more appropriate. While paragraph (e) which notes that who is the accredited representative as VA agrees that this is perhaps liberal, permission for a legal intern, law a courtesy to that representative. It is this suggestion has not been adopted. student, or paralegal to prepare and the supervising attorney-at-law who is This commenter also noted that mail present cases before the Board may be responsible for the prosecution of the service is provided on Saturday-in withdrawn by the Chairman at any time appeal. essence suggesting that the exclusion of if a lack of competence, unprofessional While VA recognizes the valuable Saturday in calculating the 5-day period conduct, or interference with the contribution which BVA experience may is inappropriate. VA notes that mail appellate process is demonstrated by provide in the training of paralegals, law service is not provided in all areas on that individual. (This authority has also students, and interns and the valuable Saturdays. The amendment is adopted been delegated to the Vice Chairman, service which these individuals provide as proposed. the Deputy Vice Chairmen, and to appellants in most instances, the No comments, suggestions, or Members of the Board. See§ 20.102(d).) Board's primary responsibility is to objections were received regarding the One commenter felt that this insure that justice is done in each amendment of § 20.306. "Martin Luther paragraph "unlawfully" singles out legal individual case and that appellants are King, Jr.'s Birthday" has been changed interns, law students and paralegals for not ill-served by inexperienced to "Birthday of Martin Luther King, Jr." "an entirely new and separate discipline individuals in training. and the apostrophe has been removed system for such representatives" and The BVA encourages zeal in the from "Veterans Day" to conform with 5 suggested that procedures such as those prosecution of appeals. Thorough U.S.C. 6103. This amendment is adopted set out in 38 CFR 14.633(c) (pertaining to representation is very helpful to the with these revisions. termination of recognition of BV A, as well as to appellants, in One comment was received representatives) be adopted. The second ensuring that all facts and applicable concerning§ 20.400. The commenter commenter felt that this paragraph was legal theories are brought to light so that suggested that the fourth sentence be based upon an assumption that law justice may be served in each individual modified by adding the words "by the students are more prone to engage in claimant or the claimant's appeal. Nevertheless, BVA Board unprofessional conduct than are other Members have a right to expect that representative," or similar words, after representatives and cited the care used the word "argument" to make it clear they will be treated with by law students utilized by the professionalism in the course of that only the claimant or his or her commenting organizat.ion in preparation representative may authorize a merged appellate presentations. Further, training for BVA hearings and the training which appeal. While that is already relatively the commenting organization gives to in professional responsibility is no less a clear from the proposed regulation, the proper part of a law students' education law students participating in such suggested addition is accepted and the hearings. Fear was expressed that an than is training in substantive and proposed amendment is adopted with appellant's case would be prejudiced procedural law. The American Bar this addition. should a law student be disqualified Association's "Model Rules of No comments, suggestions, or during the course of a hearing and a Professional Conduct" provide, in part, objections were received regarding the supervising attorney, who had not that a lawyer shall not engage in amendments to § § 20.401 and 20.500. established an equally close working conduct intended to disrupt a tribunal. These amendments are adopted as relationship with the appellant, be (Rule 3.5) The following comment, which proposed. required to complete the hearing. Fear follows that provision, is germane: One comment was received regarding was also expressed that various pre- The advocale's function Is to present I 20.501. This commenter, who was also hearing and hearing requests by evidence and argument so that the cause may the only commenter on § 20.302, students which might be inconvenient to be decided according to law. Refraining from suggested revision of the last two the BVA's administrative staff and abusive or obstreperous conduct is ~ sentences of paragraph (c) "for the same Board Members could be deemed corollary of the advocate's right to speak on reasons previously eluded (sic) to in behalf of litigants. A lawyer may stand firm "unprofessional" and that irritation with against abuse by a judge but should avoid comments pertaining to 20.302, as a "representative's" persistence might reciprocation: the judge's default is no proposed.'' Presumably, the objection is therefore cut off the representative's justification for similar dereliction by an to the concept of inclusion of new issues ability to properly develop the record. advocate. An advocate can present the cause, in a Supplemental Statement of the The BVA has permitted law students, protect the record for subsequent review and Case. For the same reasons outlined in paralegals, and legal interns to preserve professional Integrity by patient

Case: 25-1399 Document: 3 Page: 26 Filed: 01/30/2025 Federal Register J•Vol: 57, No. 22 / Monday; February 3, ':(992" /' Rules and Regidattoris 4895 firmnesa no lesa effectively than by because they had not taken the trouble and asam in proceedin!t before VA belligerence or tbeetrict. to evaluate the case prior to the hearing will be presumed to be reasonable if A mechanism such as that in or did not choose to continue with a they total no more than 20 percent of paragraph (e) is necessary for the case which they felt might not enhance any past-due benefits awarded. One protection of the appellate process in their record of success. VA considers an commenter a,serted that this provision those few cases where the privilege undertaking to represent an appellant to was contrary to law, inasmuch as 38 extended to these individuals is abused. be a very serious matter. The proposed U.S.C. 5904(d}(1} limited the 20-pen:ent Considering the status of these section already provides that test to contingent-fee cases, while a individuals, the elaborate procedures withdrawal will be permitted when good reasonableness test applies to other provided for the suspension or cause is shown and that good cause types of fee arrangements. In addition, debarment of a representative set out in includes "factors which make the the commenter argued that this 38 CFR 14.633 are not appropriate. VA continuation of representation provision woold induce representatives has no reason to believe that the impractical or impossible." Clearly, the to tailor their fees to approximate 20 authority described in this paragraph two situations mentioned by the percent even though they might be will be abused by any Member of the commenter would fall into this categery. "grossly disproportionate" to the work BVA. Should such a situation arise, the The second commenter noted that required, that Congress meant the 20- issue may be appropriately raised on there could be situations in which a percent figure to be a ceiling and not the appeal. If the supervising attorney representative could be compelled to norm, and that the presumption performs his or her function represent an appellant whom he or she transferred the burden of proof from the appropriately and monitors the bad never agreed to represent, inasmuch representative to the claimant/ professionalism of the law student, legal as designations of representation can be appellant. With regard to the latter, intern, or paralegal who is assistins him filed by appellants without the prior concern was expressed about an or her at an appellate hearing; there will agreement of the representative. This unrepresented individual meeting this be no cause for excluding such an commenter suggested that, if the burden. assistant during the course of a hearing. proposal were adopted. it should VA does not agree that this provision The supervising attorney is the contain an exception for such cases. is unlawful and finds no evidence that it representative of record. He or she is Concern was also expressed about is contrary to the intent of Congress. 38 responsible for being thoroughly placing representatives in a situation in U.S.C. 5904(c)(2} provides, in essence, prepared for hearings in order, at the which they might be forced to continue that the BVA is charged with very least, to properly supervise his or representation in situations where determining what fees are reasonable. her assistants. He or she should. and continued representation might be in This presumption serves to announce must, be prepared to take charge of any violation of the "Code of Professional that the BVA considers fees meeting the Responsibility." In this regard, it was 20-percent test to be reasonable unless aspect of a hearing when required This suggested that "unethical" be added to amendment is adopted as proposed. the contrary is shown. VA believes that "impractical" and "impossible" at the it may be construed from the provisions Only one comment was received close of the second sentence of concerning l 20.607. The commenter paragraph (b) and that representatives of38 U.S.C. 5904(d){1} that it is the sense voiced support for the provisions of this not be required to explain how or why of the Congress that fees of 20 percent section, but noted that it conflicts with are not unreasonable. It is true that this continued representation would be presumption serves to shift the burden limitations imposed by § 20.1304 unethical VA agrees that these concerning a request for a change in concerns are valid. The paragraph has of proof, but VA dtes not feel that this representation following certification of been modified to provide that transfer is unwarranted. Pees of 20 an appeal and transfer of the appellate permission to withdraw is not required percent would be relatively modest in record to the BV A. A reference to this unless a representative has agreed to act most cases. Attorneys' fees in many limitation has been added and, with this in the case and the word "unethical,. has types of civil actions, for example, addition, the proposed amendment is been added as suggested. Language has typically nm to a greater amount. At adopted. also been added to make it clear that least as to contingent fees, fees of 25 Two comments were received motions to withdraw should not include percent of past-due benefits have regarding I 20.608. Both deal with the information which it would be unethical apparently become the norm in Social restriction in paragraph (b} on a for the representative to reveal. Security cases. (Department of Health & representative's right to withdraw from A list of examples of possible VA Human Services, Social Security a case after an appeal has been certified claimants and appeHants other than Administration, Office of Hearings and to the BVA for review. veterans is given in several locations Appeals; "Report to Congress, Attorney One commenter felt that there should throughout these revisions, including Fees Under Title If of the Social Security be no restriction and expressed this section. This list has been expanded Act" 2 (1988}.J Further, most cases particular concern about a situation in to include fiduciaries appointed to allowed by the BVA do not result in which there might be an antagonistic receive an individual's VA benefits on large awacds of past-due benefits. relationship between a representative his or her behalf. This revision has been VA baa no reason to believe that and appellant or disagreement between made to provide additional information. abuse by representatives.who would the representative and appellant on how It does not represent any change in charge "grossly disproportionate" fees to proceed in a particular case. VA feels existing practices. will arise except in unueual cases. that a limited restriction on the right of a The citation of authority has been Should there be any such abuse, this representative to withdraw at the expanded to include 38 U.S.C. 7105(a}. section and 38 U.S.C. 5904(c)(2) provide appellate level is justified. With these modifications, the for review by the BVA to protect the Unfortunately, there have been abusea proposed amendment is adopted. claimant/appellant. As to unrepresented in this area. For example, there have Three comments were received individuals. the BVA baa not and will been cases in which representatives conceming f 20.869. not penalize legally unsophisticated have left appellants unrepresented Paragraph (f} of this section states appeHant&--110r will it tolerate "gros1!y minutes before a hearing was to begin that fees charged by attorneys-at-law disproportionate" fees, even though they

Case: 25-1399 Document: 3 Page: 27 Filed: 01/30/2025 4096 Federal Register / Vol. 57, No. 22 / Monday, February 3, 1992 / Rules and Regulations may meet the 20-percent test. Obviousl), BVA administrative processes would satisfied if there is a final BVA decision if fees of 20-percent were grossly continue to operate-exactly as it does now. and if there is a Notice of Disagreement disproportionate to the amount of work (134 Cong. Rec. S 16646 (daily ed. Oct. filed on or after November 18, 1988, even done, the presumption of 18, 1988).) though the decision predated the Notice reasonableness would be overcome. Essentially, the idea is that attorneys of Disagreement. For example, the The same commenter urged that this and agents will not become involved in commenter argues that if there is a final regulation include a provision for claims for particular benefits from VA BVA decision following a pre-November notifying appellants of their right to file on a fee basis until after the claim has 18, 1988, Notice of Disagreement denying a motion for review of fee agreements been denied at the VA field facility level a benefit, the claim is reopened and under paragraph (i), possibly by and, after an appeal, the BVA has had again denied at the agency of original inclusion of notice in the form used to an opportunity to rule on the merits of jurisdiction level, and a Notice of designate attorneys and agents as the particular claim-in short, until after Disagreement is filed after November 18, representatives (VA Form 2-22a) and by the normal administrative procedures 1988, on the reopened claim, there a requirement that it be included in have run their course. For example, the should be an immediate right to enter privately drawn designations of a fact that there had been a recent BVA into a fee agreement rather than a representative which does not use the decision on the issue of entitlement to necessity to await the BVA decision on form. VA does not currently believe that service connection for one disability the reopened claim. the need for such notice is so strong as would permit a fee agreement with to justify the burden of imposing a VA has not found material in the respect to that issue (assuming that the legislative history which shows that this regulatory duty of proving that such other criteria were met), but it would not notice has been given to appellants by particular point was specifically furnish a basis for a fee agreement on considered in the drafting of Public Law agents and attorneys who do not use the another entirely separate issue (e.g., form mentioned. 100-687. However, VA is of the opinion entitlement to an increased evaluation that the construction in this proposed The second commenter voiced for another disability) on which the BVA disagreement with the indication in amendment is the one which is the most had not yet ruled. It should be noted that logical. It appears that the intent with paragraph (c)(l) that a condition the term "issue" in the context of this precedent to the charging of fees by respect to the effective date for the regulation means the principal issue allowance of fee agreements was that attorneys-at-law and agents is a final (e.g., entitlement to service connection BVA decision "with respect to the issue, there would be a clear line of for a particular disability). It is not the demarcation centered on the date of or issues, involved." The commenter intent of this regulation to restrict fees argues that the only criteria should be enactment of Public Law 1()()-687 for services performed in conjunction (November 18, 1988) with an orderly that there was a prior decision, not that with the disposition of the collateral the exact issue or issues were decided in progression of subsequent events, issues which must be addressed in order culminating in a BVA decision, before that decision, and that this provision is to reach a decision on the principal contrary to the intent of Congress. VA fee agreements are permitted. issue. Independent analysts have also does not find that this objection is well- The same commenter felt that the founded. It was clearly not the intent of apparently arrived at the same words "applicable Board of Veterans' conclusion. (e.g., see Stichman, "The Congress that a BVA decision on any Appeals decision" in paragraph (c)(2) subject in the case of a particular Veterans' Judicial Review Act of 1988: are confusing and objected that the right veteran would open the door to fees by Congress Introduces Courts and to obtain an attorney on a fee basis was Attorneys to Veterans' Benefits attorneys-at-law and agents with unfairly restricted if the intent was to respect to every matter which might proceedings," 41 Ad. L. Rev. 365 at 387, refer back to paragraph (c)(l). (While ever arise in the future. The statutory the comment is not clear in this regard, 388 (1989)). requirement that there be a final this objection is apparently on the same Once the BV A denies an appeal, its decision in the case makes little sense basis as the objection to paragraph decision is final and conclusive aside unless the intent is that the decision has (c)(l).) from the right to appeal to the United been on point. The remarks of the The intent was, indeed, to refer back States Court of Veterans Appeals, or Honorable Alan Cranston, United States to paragraph (c)(l). Paragraphs (c)(l) another Federal court, under some Senate, in discussing Public Law 100-687 through (c)(3) constitute an circumstances and a possible motion for are instructive. These remarks include interconnected list of criteria which reconsideration. {38 U.S.C. 7103(a)) the following: must be met. To remove any doubt, When an appeal is denied by the Board, Let me be clear-I do not believe that most however, the language in paragraphs it may not thereafter be reopened and veterans with claims before the VA would be (c)(2) and (c)(3) has been amended to allowed on the same factual basis, but well advised to seek the assistance of an conform to the language in paragraph only on the basis of new and material attorney. Certainly, were I asked, my first (c)(l). With respect to the evidence. (38 U.S.C. 5108 and 7104lb)) advice to a veteran with such a claim would Thus, a reopened claim, even with a be to contact a veterans' service officer. But appropriateness of the language, the the existence of the valuable, free resource of comments concerning paragraph (c)(1) Notice of Disagreement filed on or after representation before the VA by veterans' apply. November 18, 1988, has little legal service officers in claims adjudication ls not Also with respect to paragraph (c)(2), relationship to a prior denied appeal. a reason for precluding a veteran from this commenter argues that there should The earlier appeal is, in essence, a seeking lo obtain the services of an attorney be no requirement that the Notice of separate case. Inasmuch as 38 U.S.C. oI the end of the internal VA process if the Disagreement received on or after 5904(c) bars payment of a fee for veteran wishes to do so. November 18, 1988, must precede the "services provided before the date on The compromise agreement before us which the Board of Veterans' Appeals today prohibits attorneys fees until after the BVA decision with respect to the issue, BVA makes its first final decision, thus or issues, involved. Essentially, the first makes a final decision in the case," contemplating that the current practice of commenter feels that the statute (38 VA believes that fees are payable only veterans being assisted by skilled veterans' U.S.C. 5904(c)(1)), read together with for service provided subsequent to a service officers throughout the VA and initial section 403 of Public Law 100-687, is final BV A decision following upon a

Case: 25-1399 Document: 3 Page: 28 Filed: 01/30/2025 Federal Register / Vol. 57, No. 22 / Monday, February 3, 1992. / .Rules and Regulations 4091 Notice of Disagreement filed on or after 100--687 decision and a post-Public Law assumption, this part of the suggestion November 18, 1988. 100--687 Notice of Disagreement. There has been adopted. The suggestion Moreover, Congress contemplated is no compelling reason to allow the concerning including delay in payment that the operative BVA decision, for the payment of fees before a veteran has as an element for consideration has not purposes of Public Law 100--687, would exhausted administrative procedures in been adopted. Potentialdifficulty in follow rather than precede the Notice of a reopened claim and, as Senator collecting fees from clients exists in Disagreement. Regarding the effective Cranston's remarks suggest, there is every .case. If the concern here is about date provisions, for example, Senato·r every reason to bar the payment of fees the fact that payment must await the Cranston noted the following: in stale appeals. result in contingent fee cases, that Given the fact that it currently takes on the Paragraph (b) of§ Z0.609 points out would be part of the justification for average over 355 days from the issuance· of that agents and attorneys-at-law may higher fees in contingent fee cases and the statement of the case-the step after the receive fees, but that other is contemplated by the inclusion of filing of the notice of disagreement-to the representatives may not. This consideration of whether the payment of entry of a final BV A decision, the new court commenter also suggested that fees is contingent upon achieving a should have sufficient time before its paragraph {b) be amended to specify favorable result. effective date on September 1, 1989, iq which when agents and attorneys-at-law who to become fully operational before it receives This commenter felt that paragraph its first significant number of cases. are also accredited representatives of (f), which provides that fees which total recognized organizations may receive no more than 20 percent of any past-due (134 Cong. Rec. S 16650 (daily ed, Oct. 18, fees. Explanatory language has been 1988)) benefits awarded will be presumed to added, as suggested. Only one be reasonable, should be "clarified" to Further, the judicial-review provisions representative may be recognized at any show that fees over 20 percent would and the attorney-fee provisions were given time in the prosecution of a not be presumed to be unreasonable. enacted together, as an organic whole. particular claim. {See § Z0.601 and 38 VA believes that it is obvious that that The attorney-fee provisions were added U.S.C. 7105(b)(Z).) An attorney-at-law or would not be a reasonable construction primarily to assist veterans in retaining agent could also be an accredited of paragraph (f) and that no further counsel for assistance in appealing BV A representative of a recognized service clarification is necessary. (See the decisions to the United States Court of organization. (See 38 CFR 14.628, discussion concerning the first Veterans Appeals. Senator Cranston "Recognition of organizations,'' and commenter's remarks regarding this emphasized that veterans should be 14.629 "Requirements for accreditation paragraph'.} assisted by veterans service officers of representatives, agents, and This commenter argues that paragraph throughout VA field facility and initial attorneys.") Whether he or she may (i) should provide that motions for the BVA processes, concluding that the charge fees for services performed in a revie~ of fee agreements should be attorney-fee provisions would enable a particular case will depend upon the ruled on by "the Board," rather than by veteran, "once he or she has received an capacity in which he or she is acting at the Chaimiari., citing the language in the initial BVA decision and has sought an the time. If the organization has-been section of Public Law 100--687 :which has attorney's assistance to appeal that designated as representative and he or been codified as 38 U.S.C. 5904 and decision, • • • to seek further BV A she is acting in his or her capacity as an arguing that Board Members are in the review with the assistance of counsel accredited representative of a best position to judge the quality and before going to court." (134 Cong. Rec. S recognized organization, it is the quantity of an attorney's work on a 16646 (daily ed. Oct. 18, 1988)) To the organization which is the representative case. This suggestion has not been extent a veteran has filed a Notice of in the case, not the accredited representative of the organization. adopted. Disagreement in a reopened claim, but Recognized organizations may not Such motions are in fact reviewable has not received a BVA decision by any of the Members of the Board thereon, an appeal to the court would be receive fees and the fact that the particular accredited representative who when the motion is properly before premature. Thus, the need for counsel envisioned by Congress (i.e., to assist in is working on the case for the them. (See§ 20.102(d).) VA regrets any organization may also happen to be an confusion which may have been caused an appeal to the COVA) has not arisen. in this regard by the typographical error In an analogous situation, Congress attorney-at-law or agent does not alter expressed its desire to bar payment of that fact. If he or she has been which resulted in an erroneous fees where counsel is not retained appropriately designated and is acting reference to § 20.609(g), rather than within one year of the final BV A in his or her own capacity as an § 20.609(i), in § 20.102(d). decision. Senator Cranston explained attorney-at-law or agent as the Secondly, this comment seems to be the effect of this provision in the context designated representative, then fees based on the erroneous assumption that of stale appeals as follows: may be charged if the other criteria are the Chairman is not a Member of the also met. (Also see proposed§ 20.603{b) Board with decision-making authority at This provision is not intended to limit a least equal to that of any other Member. claimant from changing attorneys once an concerning attorneys employed by appeals process has begun, but rather to recognized organizations.) Clearly, that is not the case. (See, for address the possibility of a claimant The third commenter suggested that example, 38 U.S.C. 7101(b).J receiving a final BVA decision waiting a the list of factors to be considered in Next, from an administrative number of years without any action, and then determining whether fees charged by standpoint, choosing which Members of retaining an attorney to request a reopening attorneys-at-law and agents are the Board will dispose of motions is one and pursuit of the claim at the regional office reasonable contained in paragraph [e) of the Chairman's duties. Sections of the level. In such a case, no fee could be paid to should include "the delay in payment" Board dispose of motions which are the attorney until after a new final decision. before them in connection with and "the contingent nature of the (134 Cong. Rec. S 16647 (daily ed. Oct. 18, representation." VA assumes that the proceeding which have been specifically 1988)) • reference to "the contingent nature of assigned to them by the Chairman. (See VA believes that the same analysis the representation" is actually a 38 U.S.C. 7102(c).) may be applied where there is a reference to the contingent nature .of Finally, VA agrees that Members of disjunction between a pre-Public Law payment in contingent fee cases. On that Board Sections will be in a good

Case: 25-1399 Document: 3 Page: 29 Filed: 01/30/2025 4098 Federal Register / Vol. 57, No. 22 / Monday, February 3, 1992 / Rules and Regulations position to rule on motions concerning review of a fee agreement. Material has this commenter, it is reluctant to impose fee agreements in matters in which they been added to paragraph (i) to make it what would in effect be a requirement have been personally involved. It is clear that this is permitted and also to for the approval of each individual contemplated that such Members will note that the ruling on the motion will be litigation expense in advance in addition rule on motions concerning fee in the form of an order, as noted in 38 to a general agreement for expense agreements which arise during the U.S.C. 5904(c)(2). Other editorial reimbur9ement. Such a requirement course of appeals or other proceedings changes have been made to the would be very burdensome to both which have been assigned to them in paragraph to make it clear that the BVA claimants/ appellants and accordance with 38 U.S.C. 7102(c). (As a need not file its own motions with itself. representatives. Consideration will be result of these comments, material has The phrase "Department of Veterans given to a requirement for advance been added to § 20.1oz to make this Affairs personnel'' has been changed to approval with respect to large expenses, clearer.) However, motions concerning read "Department of Veterans Affairs perhaps those exceeding a particular the reasonableness of fee agreements field personnel'' in the section heading amount. in the future if experience (as well as other motions) do not always and in paragraph (a) as an editorial indicates a need for further regulatory arise in the context of appeals before change in the interest of clarity. control. At this time, however, this Sections of the Board for disposition. With the modifications described in suggestion has not been adopted. Essentially, 38 U.S.C. 5904 charges the the preceding paragraphs, § 20.609 is A list of examples of possible VA BVA with monitoring the adopted. claimants and appellants other than reasonablenes1 of fee agreements One comment was received veterans is given in several locations concerning cases brought throughout the concerning § 20.610. This comment, like throughout these revisions, including Department regardless of whether they the commenter's remarks pertaining to this section. This list has been expanded are in the context of an appeal. For § 20.609(i), suggests that notice of the to include fiduciaries appointed to example, an attorney-at-law may be availability of review of the receive an individual's VA benefits on hired to represent a claimant et the field reasonableness of representatives' hls or her behalf. This revision has been level in a reopened claim which follows expenses be included in VA Form 2-22a made to provide additional information. a recent BVA decision. The and any other designation of It does not represent any change in representative may be successful in the representation by an attorney-at-law or existing practices. prosecution of the reopened claim and agent. The same response given in the VA assumed when drafting these the case will never come before the BVA discussion concerning § 20.609(i) amendments that parties would submit on appeal. Nevertheless the claimant applies. such evidence as they might wish to the could file a motion with the BVA for This commenter also suggested that BVA in conjunction with a motion for review of the reasonableness of the the BVA take into consideration. when review of a representative"s bill for attorney's fees. Along the same lines, 38 reviewing motions pertaining to the expenses. Material has been added to U.S.C. 5904{c)(Z) and these rules provide reasonableness of representatives' paragraph (dJ to make it clear that this for filing a copy of any fee agreement expenses, whether expenses have been is permitted and also to note that the with the BVA and that the Board may incurred for the aervices of experts ruling on the motion will be in the form review agreements for reasonableness which should have been provided by the of an order. on its own motion. It seems clear that representative rather than the expert. The phrase "Department of Veterans the BVA has the responsibility under Normally, experts are used to provide Affain personnel" has been changed to this statute to conduct at least a opinions on technical matters, rather read "Department of Veterans Affairs preliminary screening of agreements than to provide normal representational field personnel" in the section heading filed with it to guard against the abuse skills. Based upon past experience, VA and in paragraph (a) as an editorial of veterans and their survivors and does not cummtly perceive a significant change in the interest of clarity. dependents. Some centralized filing and potential for abuse in this area With the modifications described in initial review process at the Board is warranting regulation. VA notes that the the preceding paragraphs, § 20.610 is desirable both from the standpoint of list of criteria at the end of paragraph {d) adopted. reasonable administrative efficiency is not intended to be all inclusive and One commenter objected to the and from the standpoint of uniformity of that such a problem could be addressed provision in § 20.611 allowing a approach. under the regulation-as proposed- representative to continue A list of examples of possible VA should abuse occur. If future experience representation in a case on behalf of claimants and appellants other than should show that it is warranted, survivors for the first year following the veterans is given in several locations appropriate specific language can be death of a claimant or appellant- throughout these revisions, including added at a later time. alleging that the "lengthy period of this section. This list has been expanded Finally, this commenter suggested that recognition would constitute an to include fiduciaries appointed to whether there was prior authorization of unwarranted invasion of the privacy receive an individual's VA benefits on an expense by the claimant or appellant rights of any survivor(s)." It was his or her behalf. This reYision has been should be added to the list of criteria set suggested that the period be reduced to made to provide additional information. out in paragraph {d) used to judge the 30 or 60 days or that there should be a It does not represent any change in reasonableness of expenses. In this requirement incorporated in the existing practices. regard, the commenter expressed regulation that any survivor who files a References to "agents" have been concern about claimants not being claim must be placed on notice of the removed from paragraph (h), inasmuch aware of the cost of litigation. This "power-of-attorney" in effect and as the provisions of 38 U.S.C. 5904(d) regulation already contemplates that offered the opportunity to rescind, limit, apply only to attorneys-at-law. there will be an agreement between the or change it. VA assumed when drafting these parties as to whether a representative The suggested changes have not been amendments that parties would submit will be reimbursed for expenses. (See adopted. A similar provision has been in such evidence as they might wish to the paragraph {b).) While VA recognizes effect for many years, except that the BV A in conjunction with a motion for and appreciates the concerns voiced by cuITent regulation provides for

Case: 25-1399 Document: 3 Page: 30 Filed: 01/30/2025 Federal Register / Vol. 57, No. 22 / Monday, February 3, 1992 / Rules and Regulations 4099 .. continuation of representation for a evidence should or should not be One commenter pointed out the error "reasonable" period. (See 38 CFR excluded at a hearing is at the hearing. in the spelling of the word "appear" in 19.155(c).) This amendment substitutes a The reasons for a ruling on the the paragraph heading of paragraph (d). one year period (or a period sufficient to admissibility of evidence will be This was a typesetting error which has complete any appeal pending at the time articulated at that time. In the event that been corrected. This commenter also of the death of the claimant/ appellant) appeal is taken to a higher tribunal on suggested that the sentence "Ordinarily, for the rather vague standard of "a the question of whether evidence was however, hearings will not be postponed reasonable period." As is very clear wrongfully excluded, the hearing more than 30 days" be added following from the proposed amendment, this transcript will be available. the sixth sentence of paragraph (d). The provision does not preclude the survivor This commenter objected to the suggested language duplicates language from changing representatives or provisions in paragraph (d) limiting found in paragraph (c)(2) and VA agrees terminating representation during the informal hearing presentations to 30 that the suggested addition is applicable period if he or she wishes. minutes, asserting that this was not in appropriate. This suggestion has been Rather, it serves the function of relieving the interest of the appellant. These adopted. distraught survivors from the burden of presentations on audio cassette tapes The second commenter pointed out, in being forced to deal with such matters are limited to 30 minutes because the essence, that paragraph (d) has not been during the initial year following the tapes are transcribed by VA at no cost constructed to recognize hearings in death of an appellant or claimant and to the appellant or representative as a which only representatives appear to allows representatives to protect the service to the appellant and present oral argument. This was an interests of such survivors during this representative. Government funds for oversight which has been corrected. critical period. The amendment is this service are limited. The use of this With these revisions, the amendment adopted as proposed. procedure is optional. Appellants and is adopted. Four comments were received their representatives may present One commenter alleged that the concerning § 20.700. recorded or written presentations of any discussion of an individual's right to a One comn1enter recommended that length they wish at their own expense. Travel Board hearing in § 20.703 was • sworn testimony at a personal hearing VA also notes that the 30 minutes confusing and should be further be recognized as "primary" evidence allowed is 30 minutes of actual clarified. Unfortunately, the commenter and that the term "evidence" be defined dictation. Off-line time to compose did not indicate why or how the to include testimony. The commenter comments is not included. Thus 30 discussion was considered to be argues that this regulation should minutes of actual dictation on tape may confusing. Inasmuch as no explanation provide that the BVA must state represent several hours of work. Thirty was given and inasmuch as the material affirmative reasons for rejecting any minutes of dictation tape translates, on in the amendment is relatively simple testimony and that it should provide the average, into approximately eleven and straightforward, no change has been that the BVA may not "find a fact to be pages of typed material, single spaced. made. contrary to the veteran's testimony In a 1987 sample survey, the average A second commenter suggested that solely by reason that no reference to informal hearing presentation was just § 20.703 should be altered to provide such fact exists or is contained in the service records." under two and one-half pages in length that Travel Board hearings will not be That testimony by a veteran or any and the longest in the sample survey granted concerning reconsideration of a other witness is evidence is really not a was five and one-half pages in length. prior BVA decision unless a motion for matter which is open to debate. VA, of The other three commenters reconsideration has been granted. VA course, recognizes that it is. (See, for expressed concern about the provisions agrees that this is appropriate and this example, proposed § 19.31.) This point is of this amendment which limit hearings suggestion has been adopted. so well settled that VA sees no need to solely for oral argument unless good This proposed section failed to include it in a definition in these rules of cause for such a hearing is shown. Some mention that Travel Board hearings are practice. The other suggestions from this pointed out that give-and-take available in an appeal of a claim commenter, described previously, discussions with Members of the Board reopened after a prior BVA decision. pertain lo the deliberative and decision- are often very valuable in defining the This oversight has been corrected. preparation process of Members of the issues. One commenter expressed With the changes described, the Board. The weight to be accorded to any concern about obtaining hearings in amendment is adopted. particular item of evidence, whether cases in which an appellant was unable Two comments were received testimony or documentary evidence, is a to attend personally due to age or concerning § 20.704. matter for the triers offact-in this case, infirmities. Paragraph (c) of§ 20.704 provides, in Members of the Board-to determine. VA does not believe that, in most part, that requests for a change in a Many elements go into determining cases, the benefit to be gained justifies Travel Board hearing date may be made whether a witness is credible, including the time and expense necessary to at any time prior to the scheduled date his or her demeanor while giving conduct such hearings. In most cases, of the hearing if good cause is shown testimony. Little would be gained by a there is little which can be presented at and that if good cause is not shown, the regulatory requirement that the Board oral argument which can not be appellant and representative will be specifically state that it did not find a presented equally well in briefs. The notified and given an opportunity to particular witness to be trustworthy. proposed regulation provides for appear at the hearing previously This commenter asked that paragraph exceptions in unusual cases. The scheduled. One commenter suggested, in (c) be revised to require that reasons for amendment is adopted as proposed. essence, that this paragraph be modified excluding evidence at hearings on the No comments, suggestions, or to account for the situation in which the grounds of lack of relevancy or objections were received regarding the request for a change in the bearing date materiality or because of its repetitious amendment of § 20.701. This amendment is received so late that notice of the nature be included in the final written is adopted as proposed. denial of the request cannot be given decision by the BVA. The place for Two comments were received until after the originally scheduled argument and discussion of why concerning § 20.702. hearing date has passed. Suggested

Case: 25-1399 Document: 3 Page: 31 Filed: 01/30/2025 4100 Federal Register / Vol. 57. No. 22 / Monday, February 3, 1992 / Rules and Regulations language was proposed. The suggested program in these amendments. The This regulation was not meant to be language (which provided that if the proposed amendment is not all inclusive with respect to post-heari~ original hearing date had already passed incompatible with the program. The evidence development. It merely by the time that notice of the denial of Hearing Officer would be a panel of one provides an opportunity for the record to the request for a new hearing date could and would, of course, be the presiding be left open as a service to appellants be given, the request for the hearing Member of that panel This amendment and representatives so that they may would be deemed to have been is adopted u proposed. submit additional evidence after the withdrawn) has not been adopted. VA No comments, suggestions, or hearing if they indicate a desire to do so agrees. however, that a potential objections were received regarding the during the hearing. The BVA does not problem with the proposed amendment amendment of I 20.707. In response to a force appellants or representatives to has been identified by this commenter. comment, post-traumatic stress disorder submit evidence against their will, even Obviously, a request for a new hearing was added to the list of BVA Board when it is obvious that the evidence date must be given far enough in Member specialties in § 19.ll{c) to be would help their cause. If the Board advance of the originally scheduled taken into consideration when Section Members participating in the hearing hearing date for the agency of original expansion is required because an issue feel that additional evidence is required, jurisdiction to act on the request. This presented to a traveling Section of the they may undertake the development problem is solved in the section dealing BVA involves reconsideration of a prior administratively or through remand. with hearings other than Travel Board BVA decision. Post-traumatic stress That, however, is beyond the scope of hearings by requiring that a request for a disorder has been added to a similar list this section governing practice by new hearing date must be submitted not in this section for consistency. appellants and representatives before later than two weeks prio,: to the An editorial revision has been made the Board. scheduled hearing date. (See to change the word "panel" to "section" The individual who commented on § 20.702(c).) The§ 20.704 amendment in the text of paragraph (b) when the § 20.706 offered the same remarks has been revised to include a similar reference is to a reconsideration section concerning § 20.709. For the reasons requirement. or to a traveling section. This cha.-ige noted in the discussion concerning The second commenter pointed out, in has been made so that the amendment § 20.706, the commenter's suggestion has essence, that paragraph (d) has not been will parallel the language which appears not been adopted. The amendment is constructed to recognize hearings in in 38 U.S.C. 7103(b) and 7110. adopted as proposed. which only representatives appear to The proposed amendment is adopted. No comments, suggestions, or present oral argument. This was an with these revisions. objections were received regarding the oversight which has been corrected. amendment of§ 20.710. This amendment For reasons noted in the following The individual who commented on parll8l'aph, the substance of the second § 20.706 offered the same remarks is adopted as proposed. sentence of proposed § 20.705(b) has concerning f 20.708. For the reasons Two comments were received been moved to paragraph (a) of § 20.704. noted in the discussion concerning regarding § 20.711. With this correction. and the revisions § 20.706, the commenter's suggestion has The first commenter recommended described in the previous two not been adopted and the amendment is that additional information be included paragraphs, the § 20.704 amendment is adopted as proposed. as to who may be subpoenaed, noting adopted. Two comments were received that the regulation specifies that VA One comment was received pertaining to f 20.709. adjudication personnel are exempt but concerning I Z0.705. The commenter This regulation provides for the that the exemption did not appear to suggested that the word ••or" be moved procedures to be followed when the extend to personnel of the Department from proposed paragraph (a) (paragraph record is to be left open for a reasonable of Veterans Affairs' Veterans Health (a)(l) as adopted) to the end of proposed period of time following a personal Administration. and that the amendment paragraph (b) (paragraph {a){2) as hearing in order to allow an appellant does not discuSB "hostile" witnesses. No adopted) and that the second sentence and his or her representative to submit change has been made as a result of of proposed pa,-agraph (b) be placed in additional evidence. One commenter these comments. Essentially, any parentheses. VA agrees that the suggested that the amendment be witness may be subpoenaed-provided structure of this amendment could be revised to provide clarification of the that the requirements of the regulation improved, but is taking en alternative nature of such evidence. to provide concel'Dm8 the need for a subpoena are approach. The word "or" has been in.formation concerning whether the met. In addition. no particular moved as suggested, but the substance development of the evidence is the sole information concerning "hostile" of the second 1entence of proposed responsibility of the appellant or witneiSes is necessary. Obviously, some paragraph (b) has been moved to representative, and to distinguish lack of voluntary cooperation is implicit I 20.104{a). The substance of the between evidence requested by the BVA in the need for a subpoena. remainder of I 20.705 has not been as opposed to evidence volunteered by The second commenter complained changed. but it ha11 been reorganized for the appellant This suggestion has not because this amendment does not allow greater clarity. With these changes, been adopted. appeal of rulings on a motion to quash a § 20.705 is adopted. It is neither necessary nor desirable to subpoena. citing the provisions of 38 One comment was received define all of the types of potential U.S.C. 71M which (together with the concerning I 20.706. This oommenter evidence which might come to light provisions of 38 U.S.C. 511(a)) provide expreued concern about the reference during the course of a hearing. Any that all questions of law and fact to the presiding Member of a hearing attempt at such a definition would likely necessary to a decision by the Secretary panel in this section. and in several be incomplete, ina1much as it is under a law that affects the provision of othel'II, feeling that thi9 was not virtually impossible to guess at the benefits by the Secretary to veterans or sufficient to encompass the Hearing nature of all such evidence in advance. the dependenta or survivors of veterans Officer program of the Veterans Benefits and little {if anything) would be gained are subject to one review on appeal VA Administration. No specific changes by such an attempt. This is e matter best agrees that this is a valid criticism. The have been aaade to lnt!ntion this addressed on a case-by-case basis. restriction complained ot which

Case: 25-1399 Document: 3 Page: 32 Filed: 01/30/2025 Federal Register / Vol 51, No. 22 / Monday, February 3, 1992 / Ralea and Repletions 4111 appeared in proposed paragraph (f). One commenter ursed that 120.112 pl'OYfded for th autOMatic tramcrlption arose out or concern that appeals would include clarification with regard to "how of hearinp in thoee altuatione wltere • be end!essly delayed due to appeals of the appellant would 'Incur' expenses transcript is normally required. (See interlocutory matters. This concern can other than for-reproduction costs.. and paragraphs (a)(2} through (a){5} of the also be addressed by providing that the information on what, if any, section.) The provision that a transcript variou11 subpoena related motions are reimbursement witnesses may claim and will also be prepared when good cause appealable, but that they are not subject from whom. is shown is provided to allow for to interlocutory appeals. Paragraphs (e} In view of thilt comment, the section unanticipated circumstances. This is a and (h} have been revised to take this heading has been fflf)dified to more matter best determined on a case-by- less restrictive approach. accurately reflect its intended scope. case basis. The second commenter also argued The purpose of this section ia to alert This commenter also suggested that that the failure of this section to provide appellants, representatives, and provision be made for the automatic for deposing witnesses and its witnesses that VA cannot reimbune preparation of hearing transcripts when restriction of the issuance of subpoenas them for their expenses. 11ie potential the hearing panel consists of fewer than to those cases where the necessary expenses of an appellant in conjunction three Members or the BVA. Such a evidence cannot be obtained in any with a hearing are many and varied. requirement is not necessary. The audio other reasonable way are in violation of (Varioue travel and lodging expenses tape recordings of hearings conducted the provisions of 38 U.S.C. 5111. For the come immediately to mind aa examples.) by traveling Sections of the Board or by reasons set out below, VA does not The nature and extent of expenses the BV A in Washington, DC, are agree and no modifications have been which an appeDant may be willing to available for review by any additiooal made as a result of this criticism. incur in conjunction with a heari111 are Board Members who may be assigned to VA agrees that 38 U.S.C. 5711 is broad really deciaions winch be or she must the review of the case after a hearing enough to support a regulation make in conawtation with hia or her has been conducted. Proposed permitting formal discovery proceedings representative. Apart from the § 20.714(a)(4)(iiil, regarding the and broader subpoena power, but the availability of review for preparation of hearing transcripts in authority of the Secretary (and those to reasonableneaa of expenses charged to hearings by traveling Sections of the whom ile or she chooees to delegate that an appellant by a representative (see Board consisting of fewer than three authority) under this statute ia § 20.610), no need for regulation in this Members of the Board, has been discretionary. The statute confers area is currently perceived. The withdrawn. subpoena power, but it does not compel reimbursement of witnesses i& also a The second OOll1ll\elller asked that the exercise of that power. The power to matter to be privately determined "good cauae.. in pat88faph (a}(l) be issue aubpoenaa baa existed for a between the witnen and the appellant . defined to specifically include aituatioaa number of years. but its exercise bas or representative who requeats hia or in which, the appellant or a been limited. The provisions of this her appearance, except tha, by law {38 repreaentative wiabes to ex.amine a section are in conformance with existing U.S.C. 5711, 38 CfR 2.l(c}) witnesaea transcript in order to asseSB whether to procedures and are compatible with the who are subpoenaed are entitled to the appeal to the United Stales Cowl of authority which the Secretary has same fees and mileage expenses aa are delegated to the Chainnan of the BVA Veterans Appeals. Thia req\leSt has not paid witnesaea in the district courta of been granted. There may well be caaea and the heads of regional offices and the United States. Thia comment has . centers. (See 38 CFR 2.1.} in which this would fumieh good cause brought to liaht the need for an for the preparatioa of a written Some erosion of past simplicity of VA additional paragraph in § 2.o.711 adjudication and appeal procedures is transcript. but defiRinB g()od cause in pertaining to feeL Thia paragraph haa such a manner as to result in the inevitable with the growing complexity been added. Except for the modification of veterans' law, the involvement of to the aeclioa heading. however. § 2o.712 automatic preparation of a written attorney.at-law in the adjudication and is adopted as proposed. transcript on lhia besia ia not wananted. appeal processes, and the advent of One comment waa received pertainins Appellants and their representatives judicial review of decisions of the BVA. to § 20.713. Thia commenter pointed OQt will normally have been present al BVA VA recognizes the growing complexity that there were typographical errors in hearings and are well aware of what of veterans' law and is willing to paragraph (b). in that references to transpired at the liearing. Further, exercise more subpoena power than has § 20.702(c}li) and (c)(ii} should be to hearing t a p e ~ are available to been exercised in the past, but believes § 20.702(c){l) and (c)(2). These them for review upon requesL that this inherently adversarial process typographical errors have been Convenience aloae ia not an adequate is best limited to those cases where no corrected. Editorial changes have also basis for the conaiderable expenditure other reasonable approach will work. been made to clarify paragraph (a}. As of government funds necessary to VA is also of the opinion that the originally proposed, it suggested that prodace a written traoacripl complexity and adversarial nature of notices of hearings in simultaneously Editorial changes have been made in formal discovery proceedings are contested claim• would always be given paragraph (c). incompatible with the relatively by the BVA itself. That was, of course, Thia propoeed amendment is adopted informal VA adjudication and appeal not accurate. With these co1Tectiona. the with the reviaiona noted. process. Accordingly, such procedures proposed amendment is adopted. No comments, suggestions, or will not be implemented at this time. Two commentll were received objections were received regarding the A comment concerning § 20.712 (infra) regarding I 20.714. amendrrlalt of § 20.115. Titis amendment brought to light the absence of any The fll'Bt commenter suggested, in is adopted aa proposed, with the instructions concerning the payment of essence, that what is "good cause.. tor addition of minor editorial chafl89S. witness fees in conjunction with the the preparation of a written transcript flte individual who commented on service of a subpoena. Material should be clarified. No suggested § 20.706 offered the same remarks concerning this subject has been added. grounds were furnished by the concerning § 20.716. For the reasons With the revisions described, commenter. This suggestion has· not noted in the discuesion concemi~ proposed I 20.711 is adopted. been adopted. Tire BVA has already § 20.706, the commenter's suggestion has

Case: 25-1399 Document: 3 Page: 33 Filed: 01/30/2025 4102 Fedel'al Registel' / Vol.- 57, No. 22 / Monday,· February 3, 1992 / 'Rules and Reg~latioris not been adopted and the amendment is concerning obtaining Independent Two comments were submitted adopted as proposed, with minor medical opinions at the field level (55 FR regarding § 20.1003. These comments are editorial changes. 18601 dated May 3, 1990). Sections similar to the comments offered with Two comments were received 20.901 through 20.903 are adopted as respect to proposed provisions in concerning § 20.717. proposed. § 20.700 which restrict hearings solely The first commenter asked that loss of The General Counsel of the for oral argument by a representative. hearing tapes and transcripts be defined Department of Veterans Affairs Issued a The response to those comments to include instances where the tape is Precedent Opinion on May 17, 1990, applies. VA does agree, however, that generally unintelligible and instances which had the effect of invalidating the the latitude permitted in this area in where a written transcript contains "administrative allowance" procedures nonreconsideration hearings should also substantial errors in transcription. These of the BVA both in its current Rules of be permitted in the case of suggestions have not been adopted. The Practice and in these proposed reconsideration hearings. Accordingly, proposed amendment already regulations. (See O.G.C. Precedent modifications have been made to make contemplates unintelligible recordings. Opinion 11-90, 55 FR 27756 dated July 5, this section compatible with the For example, factors to be considered in 1990.) Such opinions are binding upon provisions of§ 20.700(b). With these determining whether a new hearing will the BVA. (See 38 U.S.C. 7104(c).) revisions, the amendment is adopted. be granted include "the extent of the Accordingly, all references to those The provisions concerning finality of loss of the record in those cases where procedures have been withdrawn from BVA decisions that were designated in only a portion of a hearing tape is these proposed amendments. The the proposal as §§ 20.1100 and 20.1101 unintelligible • • • ." (See paragraph material withdrawn includes proposed are withdrawn. This Is necessary as it (d).) The remedy for correcting errors in § 20.904. has been determined, after further transcription is a motion for the No comments, suggestions, or consideration, that such provisions of correction of the transcript. (See objections were received regarding the proposal are, in some respects, § 20.716.) proposed § 20.905. Due to the inconsistent with the statutory This commenter also suggested that withdrawal of I 20.904, proposed provisions contained in 38 U.S.C. 7103. provision be made for reimbursing I 20.905 has been redesignated as Instead, VA is publishing revised appellants and representatives for § 20.904. The proposed amendment, as provisions dealing with this topic in two expenses which they might incur in redesignated, is adopted. separate formats. First, language merely attending a new hearing which is interpreting existing statutory provisions required because of loss of the record of No comments, suggestions, or objections were received regarding the Is set forth in § 20.1100 as part of this a prior hearing due to mishandling or final rule. (Its provisions constitute loss of a tape recording or transcript of a amendments in proposed §§ 20.1000 through 20.1002. The provisions interpretative rules and, as such, are hearing by VA. VA is unaware of any exempt from the notice and comment legal authority for such reimbursement concerning reconsideration of BVA decisions that were designated in the provisions of 5 U.S.C. 553.) Second, and the commenter offered none. This additional provisions concerning this comment has not been adopted. proposal as§§ 20.1000(d) and 20.1002 The second commenter is the are withdrawn. This is necessary as it topic are set forth as part of a proposal individual who commented on § 20.706. has been determined, after further in a companion notice of proposed Thie individual offered the same consideration, that such provisions of rulemaking in this issue of the Federal remarks concerning § 20.717. For the the proposal are, in some respects, ·Register. reasons noted in the discussion inconsistent with the statutory Section 20.1101 is reserved. concerning§ 20.706, the commenter's provisions contained in 38 U.S.C. 7103. No comments, suggestions, or suggestion has not been adopted and the Instead, VA is publishing additional objections were received regarding the amendment is adopted as proposed. provisions concerning reconsideration of amendments to §§ 20.1102 through One comment was received BVA decisions as part of a proposal in a 20.1106, 20.1200, 20.1201, and 20.1300 concerning § 20.800. The comment companion document in this issue of the through 1302. These amendments are pertains to the limitations set out in Federal Register. The remainder of adopted as proposed, with minor § 20.1304 which are merely cross- § 20.1000 is adopted as proposed. editorial changes to § 20.1300 and the referenced in I 20.800. Thie objection A list of examples of possible VA editorial revisions to § § 20.1105 and will be addressed in the discussion of claimants and appellants other than 20.1301 described in the following the comments concerning I 20.1304. veterans is given in several locations paragraphs. Section 20.800 is adopted as proposed. throughout these revisions, including As proposed, the first sentence of No comments, suggestions, or I 20.1001(a). This list has been § 20.1105 read as follows: "When a objections were received regarding the expanded to include fiduciaries claimant requests that a claim be amendment of I 20.900. This amendment appointed to receive an individual's VA reopened after an appellate decision has is adopted as proposed. benefits on his or her behalf. This been promulgated and submits evidence One comment was received regarding revision has been made to provide in support thereof, a determination as to § I 20.901 through 20.903. The commenter additional information. It does not whether such evidence is new and objected because these regulations do represent any change in existing material must be made and, if it is, as to not refer to authority included in Public practices. whether it provides a new factual basis Law 100-687 for VA field facilities to Section 20.1001 is adopted as for allowing the claim." The requirement obtain independent medical expert proposed with this revision and with the that a "new factual basis" be opinions. Regulations concerning addition of the words "or evidence" at established was carried forward from obtaining opinions in the field are the end of the second sentence of current 38 O'R 19.194 which was, in beyond the scope of these amendments, paragraph (c)(2) to make it clear that turn, based on language contained in which pertain to practice before the additional evidence may now be what Is now 38 U.S.C. 7104(b) which Board of Veterans' Appeals. VA's submitted once a motion for provides that a claim may not again be Veterans Benefits Administration has reconsideration has been granted. considered "on the same factual basis" already issued a final regulation Section 20.1002 Is reserved. after it has been disallowed by the BV A.

Case: 25-1399 Document: 3 Page: 34 Filed: 01/30/2025 Federal Regisler / Vol. 57, No. 22 I Monday, February 3. 1902 / Rules and Repiations 4-103 While that statutory language still this was the cue. The removal of the seven.I clumaes were made. These remains, revisions to 38 U.S.C. 71CM(b} sentence was actually a matter of included extendma th• time limit for made by the Veterana' Judicial Review editorial judgment and did not represent submitting a request for a change in Act (Pllb. L. 100-681} provide an any change in policy. In view of the representation. submitq a request for exception in the case of claims reopened concern expressed, however, similar a personal bearing. and for aubmitting under what ia now 3& U.S.C. 5108. a new language has been added. additional evidence following section added by the same act aa 38 The second commenter also argued certification of an appeal to the BVA u.s.c. 3008. Inasmuch u I 20.11os that the Board should be attempting to from 60 to 90 day1. or witil the date the applies to reopened claims. the words achieve more consistent opinions. appellate decision in the caae is "new factual" have been withdrawn to especially in light of the creation of the promulgated by the BVA, whichever make the first sentence of the section United States Court of Veterans comes first. Section 20.1304 bas been consistent with the new staf'Jtory Appeals. by using BVA decisions as modified to conform to the final version provisions. precedential guides. This suggestion baa of 38 CFR 19.174. Paragraph (bJ of§ 20.1301. includes an not been adopted. The fourth commenter pointed out. example of a BVA decision locator Several factors are behind the long- correctly, that the reference to number. The form of the locator standing rule that BVA decisions are not § 19.112(b) should be to § 19.37(bJ. This numbers has recently changed due to precedential in nature. The majority of error has been corrected. the archiving of BVA decisions in decisions by the BVA tum on unique A list of examples of possible VA computer records rather than on fact situations. For example. the many claimants and appellants other than microfilm. Material indicating that the facts which establish a particular degree veterans i& given in several locations format of locator numbers has changed of disability in one individual are almost throughout these re,,isions, including and an example of the new type of never the same as in the case of another this section. This list has been expanded locator nwnber haYe been added to the individual. Another, and perhaps the to include fiduciaries appointed to proposed amendment, inasmuch as the most important, factor is that receive an individual's VA benefita on most recent BVA decisions have the proceedings before the BVA are ex parte his or her behalf. Thi• revision hu been new type of locator number. Material in nature. Questions of fairness would made to provide additional information. has also been added to note that the arise by, in effect, making a BVA It does not represent any change in copies of BVA Index 1--0'1-1 which are decision precedential when the existing practices. available for public review at the 8VA Department has no opportunity to Clarifying material has been added to in Washington, DC, are located in the present and defend its position in the the first sentence of paragraph (d) to BVA's Research Center. (Of course, proceeding. Further, VA may not appeal point out that the only evidence BVA decisions are not made available a BVA decision to the United States provided to all contesting claimants in a to the public in a form permitting the Court of Veterans Appeals. (38 U.S.C. identification of individuals.) 7152(a}). In addition to these historical. contested claim is evidence which is Two comments were received and still valid, considerations, pertinent to the matter contested. regarding § 20.1303. uniformity will be achieved on With the revisions noted. this One comment was that '"it is important questions through precedent amendment is adopted. suggested that the term decisions of the United States Court of Proposed § 20.1306 hu been 'nonprecedential' be more clearly Veterans Appeals. withdrawn. The purpose of that aection defined and the relationship to decisions With the addition previously was to provide tranaitimMu effective of the Court of Veterans Appeals." (sic} described. the amendment is adopted. date rules in the event that these The meaning of the word Four comments were received amendments were adopted prior to "nonprecedential" (which appears in the regarding f 20.13M. September 1, 1989-the effective date of section heading) is fully explained in the Thia proposed section wu essentially many of the provisions of Public Law text of the section and there is little a duplicate of a proposed amendment of 1~7. which would be useful which could be 38 CFR 19.174 (b) through (e) which waa There was a typesetting error in added. Nonprecedential has its usual published for public comment on Ju)y 6, Appendix A to part 20. The numbers meaning. That is, as has been VA's 1989 (54 FR 28445). The final version of "20.700-20.717" at the bottom of the left- position for many years, a BVA decision that regulation was publiahed on May hand column, beneath the number in one case is not binding in another. 15, 1990. (55 FR 20144}. Several changes "20.1304," should have been printed in This amendment, of course, applies only arising out of comments received were the second column after the comma to BVA decisions and has no bearing on incorporated into the final version of 38 which appears after the citation "38 CFR decisions by the United States Court of CFR 19.174. 3.103(c)" which is in the second column Veterans Appeals. One of the four commenters on directly to the right of the number The second commenter objected to proposed§ 20.1304 incorporated ita prior "20.1304" in the left-hand column. This the removal of the first sentence of the comments concerning the amendment of error has been corrected. The appendix Rule of Practice upon which this 38 CFR 19.174 by reference and has also been corrected to reflect the amendment was based (current submitted an affidavit in support of changes diacuuecl in pnmcrua pages. § 19.197). That sentence read as followr. those comments. Two of the other three With these correctiona. lhe appendix• ''The Board will strive for consistency in commenters offered objections similar adopted. issuing ita decisions." The commenter to those raised concerning the The Secretary has determilled that argued that removins the consistency amendment of 38 CFR 19.174. The these regulations do not contain a major provision was contrary to "due process" comments concerning the amendment of rule as that tema is def'med by ExecatiYe and Public Law 100-687. 38 CFR 19.174 weTe exhaustively Order 12291, Federal Repletion. 11le VA perceives no violation of either discussed in the Federal Regi9tar at the regulations will not have a $100 million "due process" or of Public Law 100-M7 time that the final version of that annual effect on the economy and will through the removal of the sentence in regulation was adopted. These thr,e not cause a majcw incl'eaee in coelw or question and the commenter offered no commenters are referred to that prices for anyone. Taey will have no explanation of why it was thoupt that discussion. As noted in that dise11Nion. significant adverse effects on

Case: 25-1399 Document: 3 Page: 35 Filed: 01/30/2025 4104 Federal Register / Vol. 57, No. 22 / Monday, February 3, 1992 / Rules and Regulations competition, employment, investment, §§ 14.634 and 14.635 [Removed] Subpart 8-Appeals Processing by Agency productivity, innovation, or on the of Original Jurisdiction §§ 14.636 and 14.837 [Redeslgnated a1 ability of United States-based §§ 14.634 and 14.635] 19.25 Notification by agency of original enterprises to compete with foreign- jurisdiction of right to appeal. based enterprises in domestic or export 2. Sections 14.634 and 14.635 are 19.26 Action by agency of original markets. removed and§§ 14.636 and 14.637 are jurisdiction on Notice of Disagreement. redesignated as new §§ 14.634 and 19.27 Adequacy of Notice of Disagreement The Secretary hereby certifies that 14.635 respectively. questioned within the agency of original these regulatory amendments will not jurisdiction. 3. In newly designated§ 14.634, the have a significant economic impact on a 19.28 Determination that a Notice of last sentence is removed and an Disagreement is inadequate protested by substantial number of small entities as authority citation and cross-references they are defined in the Regulatory claimant or representative. are added at the end of the section to 19.29 Statement of the Case. Flexibility Act. 5 U.S.C. 601-612. The read as follows: reason for this certification is that the 19.30 Furnishing the Statement of the Case and instructions for filing a Substantive regulations have only a limited effect on § 14.634 Banks or trust companies acting as guardians. Appeal. claimants/ appellants and their 19.31 Supplemental Statement of the Case. representatives. Pursuant to 5 U.S.C. * * * 19.32 Closing of appeal for failure to 605(b), these regulations are therefore (Authority: 38 U.S.C. 5903, 5904) respond to Statement of the Case. exempt from the initial and final Cross-References: Payment of 19.33 Timely filing of Notice of regulatory flexibility analyses Representative's Fees in Proceedings Before Disagreement or Substantive Appeal requirements of sections 603 and 604. Department of Veterans Affairs Personnel questioned within the agency of original and Before the Board of Veterans' Appeals. jurisdiction. The infonnation collection See I 20.609 of this chapter. Payment of 19.M Determination that Notice of requirements contained in § § 20.202, Representative's Expenses in Proceedings Disagreement or Substantive Appeal was 20.608, 20.609, 20.610, 20.702, and 20.704 Before Department of Veterans Affairs not timely filed protested by claimant or of these regulations have been approved Personnel and Before the Board of Veterans' representative. by the Office of Management and Appeals. See I 20.610 of this chapter. 19.35 Certification of appeals. Budget (0MB) under 0MB control 19.36 Notification of certification of appeal 4. In newly designated§ 14.635, cross- and transfer of appellate record. number 2900--0085. references are added at the end of the 19.37 Consideration of additional evidence There are no Catalog of Federal section to read as follows: received by the agency of original Domestic Assistance numbers jurisdiction after an appeal has been associated with these regulatory § 14.635 Office space and facllltlea. initiated. amendments. * * * * 19.38 Action by agency of original Cross-References: Payment of jurisdiction when remand received. Ust of Subjects Representative's Fees In Proceedings Before 19.39-19.49 (Reserved] Department of Veterans Affairs Personnel 38 CFR Part 14 SUbpart C-Admlnlstratlve Appeals and Before the Board of Veterans' Appeals. Claims, Foreign relations, Government See I 20.609 of this chapter. Payment of 19.50 Nature and form of administrative employees, Lawyers, Legal services, Representative's Expenses in Proceedings appeal. Organization and functions Before Department of Veterans Affairs 19.51 Officials authorized to file Personnel and Before the Board of Veterans' administrative appeals and time limits (Government agencies), Reporting and Appeals. See § 20.610 of this chapter. for filing. recordkeeping requirements, Surety 19.52 Notification to claimant of filing of bonds, Trusts and trustees, Veterans. 5. 38 CFR Part 19, Board of Veterans' administrative appeal. Appeals, is revised to read as follows: 19.53 Restriction as to change in payments 38 CFR Part 19 pending determination of administrath e Administrative practice and PART 19-BOARD OF VETERANS' appeals. procedure, Claims, Veterans. APPEALS: APPEALS REGULATIONS 19.54-19.74 [Reserved] Subpart A-Operation of the Board of Subpert D-Hearlng1 Before Traveling 38 CFR Part 20 Veterans' Appeals SecUons of the Board of Veterans' Appeals Administrative practice and Sec. 19.75 Travel Board hearing docket. procedure, Claims, Lawyers, Legal 19.1 Establishment of the Board. 19.76 Notice of time and place of Travel services, Veterans. 19.2 Composition of the Board. Board hearing. 19.3 Appointment, assignment, and rotation 19.77 Providing Statement of the Case when Approved: November 6, 1991. Travel Board hearing has been of Members. Edward J. Derwinski, 19.4 Principal functions of the Board. requested. Secretary of Veterans Affairs. 19.5 Criteria governing disposition of 19.78-19.99 (Reserved] appeals. For the reasons set out in the 19.6 (Reserved] SUbpart E-Slmultaneously Contested preamble, 38 CFR parts 14 and 19 are 19.7 The decision. Claims amended, and 38 CFR part 20 is added, 19.8 Decision notification. 19.100 Notification of right to appeal in as set forth below: 19.9 Remand for further development. simultaneously contested claims. 19.10 [Reserved] 19,101 Notice to contesting parties or. PART 14-LEGAL SERVICES, 19.11 Reconsideration Section. receipt of Notice of Disagreement in 19.12 Disqualification of Members. simultaneously contested claims. GENERAL COUNSEL 19.13 Delegation of authority to Chairman 19.102 Notice of appeal to other contesting 1. The authority citation for part 14 1s and Vice Chairman, Board of Veterans' parties in simultaneously contested Appeals. claims. revised to read as follows: 19,14 Delegation of authority-Appeals Regulations. Appendix A to Part 19-Cross-Refe~nces Authority: 38 U.S.C. 501, 5901-5905. 19.15-19.24 (Reserved] (Authority: 38 U.S.C. 501(a).

Case: 25-1399 Document: 3 Page: 36 Filed: 01/30/2025 Federal Register / Vol. 57, No. 22 / Monday, February 3, 1992 l Rules and Regulations 4105 Subpart A-Operation of the Board of in writing on the questions presented on written decision which will be mailed Veterans' Appeals appeal. • only to that appellant and his or her (Authority: 38 U.S.C. 7102, 7104) representative. • § 19.1 Establishment of the Board. (Authority: 38 U.S.C. 7104(e)) The Board of Veterans' Appeals is § 19.5 Criteria governing disposition of established by authority of, and appeals. § 19.9 Remand for further development. functions pursuant to, title 38, United In the consideration of appeals, the When, during the course of review, it States Code, chapter 71. Board is bound by applicable statutes, is determined that further evidence or regulations of the Department of clarification of the evidence or § 19.2 Composition of the Board. Veterans Affairs, and precedent correction of a procedural defect is The Board consists of a Chairman, opinions of the General Counsel of the essential for a proper appellate decision, Vice Chairman, Deputy Vice Chairmen, Department of Veterans Affairs. The a Section of the Board shall remand the Members, and professional, Board is not bound by Department case to the agency of original administrative, clerical and manuals, circulars, or similar jurisdiction, specifying the action to be stenographic personnel. administrative issues. undertaken. (Authority: 38 U.S.C. 501(a), 512, 7101(a)) (Authority: 38 U.S.C. 501(a), 7104(c)) (Authority: 38 U.S.C. 7102, 7104(a)) § 19.3 Appointment, assignment, and § 19.8 [Reserved] § 19.10 [Reserved] rotation of Membe1'9. § 19.7 The decision. § 19.11 Reconsideration Section. (a) Appointment of Members .. The Chairman is appointed by the President (a) Decisions based on entire record. (a) Assignment of members. When a of the United States, by and with the The appellant will not be presumed to motion for reconsideration is allowed, advice and consent of the United States be in agreement with any stateinent of the Chair,nan will assign a Section to Senate. Members of the Board, including fact contained in a Statement of the conduct the reconsideration. the Vice Chairman, are appointed by the Case to which no exception is taken. (b) Number of Members constituting a Secretary upon the recommendation of Decisions of the Board are based on a reconsideration Section. The number of the Chairman with the approval of the review of the entire record. Board Members assigned to the President of the United States. Deputy (Authority: 38 U.S.C. 7104(a), 7105(d)(4)) reviewing Section will be determined by Vice Chairmen are Members of the (b) Content. The decision of the Board increasing the number of Members who Board who are appointed to that office will be in writing and will set forth participated in the original decision by by the Secretary upon the specifically the issue or issues under not less than three additional Members, recommendation of the Chairman. appellate consideration. Except with in increments of three Members. Except (Authority: 38 U.S.C. 501(11,), 512, 7101(b)) respect to issues remanded to the when necessary to obtain a majority agency of original jurisdiction for further opinion, a reconsideration Section will (b) Assignment. The Chairman may not exceed nine Members. divide the Board into Sections ofthree development of the case and appeals which are dismissed because the issue (c) Members included in the Members, assign Members of the Board reconsideration Section. The to each such Section, and designate the has been resolved by administrative action or because an appellant seeking reconsideration Section will include Chief Member of each such Section. tho.se Members who participated in the From time to time, a Member may be nonmonetary benefits has died while the appeal was pending, the decision will original decision who are available, designated as a Chief Member or a Chief additional Members assigned by the Member may be redesignated as a also include separately stated findings of fact and conclusions of law on all Chairman to substitute for Members Member. who participated in the decision being material issues of fact and law (Authority: 38 U.S.C. 7102) presented on the record, the reasons or reconsidered who are no longer (c) Rotation. The Chairman may from bases for those findings and available, and additional Members time to time rotate the Members of the conclusions, and an order granting or assigned in accordance with paragraph Sections. denying the benefit or benefits sought on (b) of this section. In the case of Travel appeal or dismissing the appeal. Board hearings involving (Authority: 38 U.S.C. 7102) (Authority: 38 U.S.C. 7104(d}) reconsideration of a prior Board (d) Inability to serve. If, as a result of decision, the Members of the traveling a vacancy, absence, or for reasons set § 19.8 Decision notification. Section of the Board will be included in forth in § 19.12 of this part, a Member of After a decision has been rendered by the expanded Section established a Section of the Board is unable to the Board, all parties to the appeal and pursuant to paragraph (b) of this section. participate in the disposition of an the representatives, if any, will be If the prior Board decision being appeal before the Section, the Chairman notified of the results by the mailing of a reconsidered involves questions may assign or substitute another copy of the written decision to the concerning post-traumatic stress Member or direct the Section to proceed parties and their representatives at their disorder or radiation, Agent Orange, or without any additional assignment or last known addresses. In the case of asbestos exposure, the traveling Section substitution of Members. appeals involving contesting claimants, will be included in an expanded Section (Authority: 38 U.S.C. 7102) the content of the Board's decision will which also includes Board Members be limited to that information which specializing in those issues. § 19.4 Prlnclpal functions of the Board. directly affects the payment or potential (Authority: 38 U.S.C. 7102, 7103, 7110) The principal functions of the Board payment of the benefit(s) which is (are) are to make determinations of appellate the subject of the contested claim. Any § 19.12 Dlsquallflcatlon of Members. jurisdiction, consider all applications on Board decision in the same case, but (a) General. A Member of the Board appeal properly before it, conduct involving separate appeal issues which will disqualify himself or herself in a hearings on appeal, evaluate the are not a part of the contested claim, hearing or decision on an appeal if that evidence of record, and enter decisions will be made the subject of a separate appeal involves a determination in