Appeals Regulations, Rules of Practice: Single Member and Panel Decisions; Reconsiderations; Order of Consideration

DEPARTMENT OF THE TREASURY

DEPARTMENT OF VETERANS AFFAIRS

Board of Veterans' Appeals

38 CFR Parts 19 and 20

RIN 2900-AH16

Appeals Regulations, Rules of Practice: Single Member and Panel

Decisions; Reconsiderations; Order of Consideration

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends the Appeals Regulations and Rules of

Practice of the Board of Veterans'' Appeals. The amendments incorporate

recent statutory changes (including provisions to allow matters to be

decided by individual Board members), set forth procedures regarding

reconsideration of decisions, change office names and designations due

to administrative changes within the Board, and make other

nonsubstantive changes.

DATES: Effective Date: This final rule is effective May 7, 1996.

Applicability Dates: The incorporation of statutory provisions and

statutory interpretations contained in this final rule will be applied

retroactively from the effective dates of the statutory provisions. For

more information concerning the application of the provisions of this

final rule, see the SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT: Steven L. Keller, Chief Counsel, Board

of Veterans' Appeals, Department of Veterans Affairs, 810 Vermont

Avenue, NW, Washington, DC 20420 (202-565-5978).

SUPPLEMENTARY INFORMATION: This document amends the Appeals

Regulations, 38 CFR Part 19, and the Rules of Practice, 38 CFR Part 20,

of the

[[Page 20448]]

Board of Veterans' Appeals (Board). The Board adjudicates appeals of

denials of claims for veterans' benefits.

Public Law 103-271

In large part, the amendments made by this document reflect

statutory changes made by Public Law 103-271.

Changes are made to Secs. 19.3, 19.9, 19.11, 19.12, 19.76, 20.3,

20.102, 20.401, 20.606, 20.700, 20.702 through 20.705, 20.707 through

20.708, 20.711, 20.714 through 20.717, 20.901, 20.1003, and 20.1100, to

reflect that, under Public Law 103-271, the Board's Chairman may assign

matters, including hearings, to individual Board members or to panels

of three or more members.

Changes are made to Secs. 19.3, 19.11, 20.102, 20.608, 20.707,

20.711, 20.717, and 20.1304 to reflect that, under Public Law 103-271,

a proceeding may not be assigned to the Chairman as an individual

member but that the Chairman may participate in a proceeding assigned

to a panel, or in a reconsideration assigned to a panel, and to reflect

how a reconsideration panel is to be constituted.

Changes are made to Secs. 19.11 and 20.707 to reflect that, under

Public Law 103-271, reconsideration of a matter heard by a single

member shall be referred to a panel of not less than three Board

members, that reconsideration of a matter heard by a panel of members

shall be referred to an enlarged panel, and that a reconsideration

panel may not include any member who made the decision that is being

reconsidered.

Changes are made to Secs. 19.75 and 20.704 to reflect that, under

Public Law 103-271, hearings at a facility within the area served by a

VA regional office shall be scheduled to be held in the order in which

requested, but may be scheduled earlier if the appellant is seriously

ill or under severe financial hardship.

Changes are made to Sec. 20.3 to reflect that, under Public Law

103-271, in lieu of a personal hearing, an appellant may participate in

a Board hearing through picture or through voice transmission, by

electronic or other means, with the Board member or members at the

Board's principal location.

Miscellaneous

In addition, definitions of ``electronic hearing'' and ``presiding

member'' have been added to Sec. 20.3 to reflect the Board's

interpretation of Public Law 103-271 and, in Sec. 20.900, paragraph (b)

has been revised and paragraph (d) added to reflect the Board's

interpretation of the requirement, established by Public Law 103-446,

Section 302, that cases remanded by the Court of Veterans Appeals be

treated expeditiously.

Further, Sec. 19.11(b) has been amended to provide that

reconsideration panels are to be enlarged in increments of three as

necessary to obtain a majority decision. This constitutes the policy

for the Board to use in implementing the provisions of Public Law 103-

271.

Finally, Parts 19 and 20 are amended to update current titles and

designations within the Board, and to make other nonsubstantive

changes.

This final rule consists of incorporation of statutory provisions,

interpretive rules, rules of agency procedure or practice, and

nonsubstantive changes and, therefore, is not subject to the notice and

comment and effective date provisions of 5 U.S.C. 553.

The Secretary hereby certifies that this final rule will not have a

significant economic impact on a substantial number of small entities

as they are defined in the Regulatory Flexibility Act (RFA), 5 U.S.C.

601-602, since it does not contain any substantive provisions. This

final rule would not cause a significant effect on any entities.

Therefore, pursuant to 5 U.S.C. 605(b), this amendment is exempt from

the initial and final regulatory flexibility analysis requirements of

sections 603 and 604.

Incorporation of statutory provisions and statutory interpretations

made by this final rule will be applied retroactively from the

effective dates of the statutory provisions. The dates of application

for such changes and for certain of the nonsubstantive changes made for

clarity, to correct typographical errors, or to reflect statutory

recodification changes are as follows:

July 1, 1994: Secs. 19.3(a) and (b); 19.4; 19.9; 19.11; 19.12(b);

19.75; 19.76; 20.3(h) and (n); 20.102(c) and (d); 20.401(b); 20.606(a),

(b), and (d); 20.608(b)(2); 20.700(b) and (d); 20.702(a), (c), (d), and

(e); 20.704(a), (c), (d), (e), and (f); 20.705(b); 20.707; 20.708;

20.711(e) and (h); 20.714(a)(4); 20.715; 20.716; 20.717(d); 20.901(e);

20.1003; 20.1100(a); and 20.1304(b).

November 2, 1994: Sec. 20.900(b) and (d).

List of Subjects

38 CFR Part 19

Administrative practice and procedure, Claims, Veterans.

38 CFR Part 20

Administrative practice and procedure, Claims, Lawyers, Legal

services, Veterans.

Approved: April 30, 1996.

Jesse Brown,

Secretary of Veterans Affairs.

For the reasons set out in the preamble, title 38 of the Code of

Federal Regulations, parts 19 and 20, are amended under the authority

of Public Law 103-271, 108 Stat. 740, and Public Law 103-446, 108 Stat.

4645, as set forth below:

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

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

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

Subpart A--Operation of the Board of Veterans' Appeals

2. Section 19.2 is revised to read as follows:

Sec. 19.2 Composition of the Board.

The Board consists of a Chairman, Vice Chairman, Deputy Vice

Chairmen, Members and professional, administrative, clerical and

stenographic personnel. Deputy Vice Chairmen are Members of the Board

who are appointed to that office by the Secretary upon the

recommendation of the Chairman.

(Authority: 38 U.S.C. 501(a), 512, 7101(a))

3. Section 19.3 is revised to read as follows:

Sec. 19.3 Assignment of proceedings.

(a) Assignment. The Chairman may assign a proceeding instituted

before the Board, including any motion, to an individual Member or to a

panel of three or more Members for adjudication or other appropriate

action. The Chairman may participate in a proceeding assigned to a

panel of Members.

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

(b) Inability to serve. If a Member is unable to participate in the

disposition of a proceeding or motion to which the Member has been

assigned, the Chairman may assign the proceeding or motion to another

Member or substitute another Member (in the case of a proceeding or

motion assigned to a panel).

Authority: 38 U.S.C. 7101(a), 7102)

Sec. 19.4 [Amended]

In Sec. 19.4 the authority citation is revised to read as follows:

(Authority: 38 U.S.C. 7102, 7104, 7107)

5. Section 19.7 is amended by adding a new paragraph (c) to read as

follows:

Sec. 19.7 The decision.

* * * * *

[[Page 20449]]

(c) A decision by a panel of Members will be by a majority vote of

the panel Members.

6. Section 19.9 is revised to read as follows:

Sec. 19.9 Remand for further development.

When, during the course of review, it is determined that further

evidence or clarification of the evidence or correction of a procedural

defect is essential for a proper appellate decision, a Member or panel

of Members of the Board shall remand the case to the agency of original

jurisdiction, specifying the action to be undertaken.

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

7. Section 19.11 is revised to read as follows:

Sec. 19.11 Reconsideration panel.

(a) Assignment of Members. When a motion for reconsideration is

allowed, the Chairman will assign a panel of three or more Members of

the Board, which may include the Chairman, to conduct the

reconsideration.

(b) Number of Members constituting a reconsideration panel. In the

case of a matter originally heard by a single Member of the Board, the

case shall be referred to a panel of three Members of the Board. In the

case of a matter originally heard by a panel of Members of the Board,

the case shall be referred to an enlarged panel, consisting of three or

more Members than the original panel. In order to obtain a majority

opinion, the number of Members assigned to a reconsideration panel may

be increased in successive increments of three.

(c) Members included in the reconsideration panel. The

reconsideration panel may not include any Member who participated in

the decision that is being reconsidered. Additional Members will be

assigned in accordance with paragraph (b) of this section.

(Authority: 38 U.S.C. 7102, 7103)

8. Section 19.12(b) is revised to read as follows:

Sec. 19.12 Disqualification of Members.

* * * * *

(b) Appeal on same issue subsequent to decision on administrative

appeal. Any Member of the Board who made the decision on an

administrative appeal will disqualify himself or herself from acting on

a subsequent appeal by the claimant on the same issue.

(Authority: 38 U.S.C. 7102, 7104, 7106)

* * * * *

Subpart B--Appeals Processing by Agency of Original Jurisdiction

Sec. 19.30 [Amended]

9. In Sec. 19.30 paragraph (b), is amended by removing ``VA Form 1-

9'' and adding, in its place, ``VA Form 9''.

Sec. 19.31 [Amended]

10. In Sec. 19.31, the last sentence is removed.

Sec. 19.35 [Amended]

11. Section 19.35 is amended by removing ``VA Form 1-8'' and

adding, in its place, ``VA Form 8''.

Subpart C--Administrative Appeals

12. Section 19.51(a)(1) is revised to read as follows:

Sec. 19.51 Officials authorized to file administrative appeals and

time limits for filing.

* * * * *

(a) Central Office--(1) Officials. The Under Secretary for Benefits

or a service director of the Veterans Benefits Administration, the

Under Secretary for Health or a service director of the Veterans Health

Administration, and the General Counsel.

* * * * *

13. The heading for Subpart D is revised to read as follows:

Subpart D--Hearings Before the Board of Veterans' Appeals at

Department of Veterans Affairs Field Facilities

14. Section 19.75 is revised to read as follows:

Sec. 19.75 Hearing docket.

Hearings on appeal held at Department of Veterans Affairs field

facilities will be scheduled for each area served by a regional office

in the order in which requests for such hearings within that area are

received by the Department except when a motion to advance the case on

the hearing docket is granted under Rule of Practice 704(f) (38 CFR

20.704(f)).

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

15. Section 19.76 is revised to read as follows:

Sec. 19.76 Notice of time and place of hearing before the Board of

Veterans' Appeals at Department of Veterans Affairs field facilities.

The agency of original jurisdiction will notify the appellant and

his or her representative of the place and time of a hearing before the

Board of Veterans' Appeals at a Department of Veterans Affairs field

facility not less than 60 days prior to the hearing date. This time

limitation does not apply to hearings which have been rescheduled due

to a postponement requested by an appellant, or on his or her behalf,

or due to the prior failure of an appellant to appear at a scheduled

hearing before the Board of Veterans' Appeals at a Department of

Veterans Affairs field facility with good cause. The right to notice at

least 60 days in advance will be deemed to have been waived if an

appellant accepts an earlier hearing date due to the cancellation of

another previously scheduled hearing.

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

Sec. 19.77 [Removed and revised]

16. Section 19.77 is removed, and revised.

Subpart E--Simultaneously Contested Claims

17. Section 19.101 is amended by removing ``VA Form 1-9'' and

adding, in its place, ``VA Form 9''.

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

18. The authority citation for part 20 continues to read as

follows:

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

Subpart A--General

19. Section 20.3 is amended by redesignating paragraphs (h), (i),

(j), (k), (l), (m), and (n) as (i), (j), (k), (l), (m), (o), and (p)

respectively, and adding new paragraphs (h) and (n) to read as follows:

Sec. 20.3 Rule 3. Definitions.

* * * * *

(h) Electronic hearing means a hearing on appeal in which an

appellant or a representative participates, through voice transmission

or through picture and voice transmission, by electronic or other

means, in a hearing with a Member or Members sitting at the Board's

principal location in Washington, DC.

* * * * *

(n) Presiding Member means that Member of the Board who presides

over a hearing, whether conducted as a single Member or panel hearing.

* * * * *

Subpart B--The Board

20. In Sec. 20.102 paragraph (d) is removed, and paragraph (c) is

revised to read as follows:

Sec. 20.102. Rule 102. Delegation of authority--Rules of Practice.

* * * * *

(c) The authority exercised by the Chairman of the Board of

Veterans'

[[Page 20450]]

Appeals described in Rules 2 and 606(e) (Secs. 20.2, and 20.606(e) of

this part), may also be exercised by the Vice Chairman of the Board; by

Deputy Vice Chairmen of the Board; and, in connection with a proceeding

or motion assigned to them by the Chairman, by a Member or Members of

the Board.

* * * * *

Subpart C--Commencement and Perfection of Appeal

Sec. 20.202 [Amended]

21. Section 20.202 is amended by removing ``VA Form 1-9'' and

adding, in its place, ``VA Form 9''.

Subpart E--Administrative Appeals

22. In Sec. 20.401, paragraph (b) is revised to read as follows:

Sec. 20.401 Rule 401. Effect of decision on administrative or merged

appeal on claimant's appellate rights.

* * * * *

(b) Appeal not merged. If the claimant does not authorize merger,

normal appellate rights on the same issue are preserved, and the

Chairman will assign the proceeding to a Member or panel of Members of

the Board who did not make the decision on the administrative appeal.

The period of time from the date of notification to the claimant of the

administrative appeal to the date of the Board's decision on the

administrative appeal is not chargeable to the claimant for purposes of

determining the time limit for perfecting his or her separate appeal.

* * * * *

Subpart G--Representation

Sec. 20.603 [Amended]

23. Section 20.603(a) is amended by removing ``VA Form 2-22a'' and

adding, in its place, ``VA Form 22a''.

Sec. 20.604 [Amended]

24. Section 20.604(a) is amended by removing ``VA Form 2-22a'' and

adding, in its place, ``VA Form 22a''.

Sec. 20.605 [Amended]

25. Section 20.605(c) is amended by removing ``VA Form 2-22a'' and

adding, in its place, ``VA Form 22a''.

Sec. 20.606 [Amended]

26. In Sec. 20.606, paragraph (a) is amended by removing ``before

traveling Sections of the Board''. Paragraph (b) is amended by removing

``Chief, Hearing Section (014B)'' and adding, in its place, ``Director,

Administrative Service (014)''; and by removing ``appeals before

traveling Sections of the Board'' and adding, in its place, ``hearings

before a Member or Members of the Board at Department of Veterans field

facilities''; and by removing ``traveling Section'' and adding, in its

place, ``hearing''. Paragraph (d) is amended by removing ``Chief of

Hearing Section'' and adding, in its place, ``Director of the

Administrative Service''; and by removing ``proceedings before

traveling Sections'' and adding, in its place, ``hearings before a

Member or Members''; and by revising the phrase ``not more than 10 days

prior to the scheduled hearing date'' to read, ``not less than 10 days

prior to the scheduled hearing date,'' and reinserting it directly

after the first appearance of ``attorney-at-law'' in the second

sentence; and removing ``traveling Section'' in the third sentence and

adding, in its place, ``hearing''.

Sec. 20.608 [Amended]

27. In Sec. 20.608, paragraph (b)(2), the last sentence is removed.

28. The heading for Subpart H is revised to read as follows:

Subpart H--Hearings on Appeal

29. In Sec. 20.700, paragraph (b) is amended in the third sentence

by removing ``personal'', and by removing ``of the hearing panel

involved'' in the last sentence and adding, in its place, ``assigned to

conduct the hearing''; paragraph (d) is amended in the second sentence

by removing ``a Board of Veterans' Appeals hearing panel'' and adding,

in its place, ``the Board of Veterans Appeals'', and by removing

``panel members'' in the third sentence and adding, in its place,

``Member or Members to whom the appeal has been assigned for a

determination''; a new paragraph (e) is added; and the authority

citation is revised to read as follows.

Sec. 20.700 Rule 700. General.

* * * * *

(e) Electronic hearings. When suitable facilities and equipment are

available, an appellant may be scheduled for an electronic hearing. Any

such hearing will be in lieu of a hearing held by personally appearing

before a Member or panel of Members of the Board and shall be conducted

in the same manner as, and considered the equivalent of, such a

hearing. If an appellant declines to participate in an electronic

hearing, the appellant's opportunity to participate in a hearing before

the Board shall not be affected.

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

Sec. 20.701 [Amended]

30. In Sec. 20.701, the authority citation is revised to read as

follows:

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

31. Section 20.702 is amended by revising the last sentence in

paragraph (c)(1), the last two sentences in paragraph (c)(2), the

fourth and last sentences in paragraph (d), the last sentence in

paragraph (e), and the authority citations for paragraphs (a) through

(e) to read as follows:

Sec. 20.702 Rule 702. Scheduling and notice of hearings conducted by

the Board of Veterans' Appeals in Washington, DC.

(a) * * *

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

(b) * * *

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

(c) Requests for changes in hearing dates. (1) * * * In the case of

hearings to be conducted by the Board of Veterans' Appeals in

Washington, DC, such requests for a new hearing date must be filed

with: Director, Administrative Service (014), Board of Veterans'

Appeals, 810 Vermont Avenue, NW., Washington, DC 20420.

(2) * * * In the case of a hearing conducted by the Board of

Veterans' Appeals in Washington, DC, whether good cause for

establishing a new hearing date has been shown will be determined by

the presiding Member assigned to conduct the hearing. In the case of

hearings to be conducted by the Board of Veterans' Appeals in

Washington, DC, the motion for a new hearing date must be filed with:

Director, Administrative Service (014), Board of Veterans' Appeals, 810

Vermont Avenue, NW., Washington, DC 20420.

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

(d) Failure to appear for a scheduled hearing. * * * In the case of

hearings to be conducted by the Board of Veterans' Appeals in

Washington, DC, the motion must be filed with: Director, Administrative

Service (014), Board of Veterans' Appeals, 810 Vermont Avenue, NW.,

Washington, DC 20420. * * * In the case of hearings before the Board of

Veterans' Appeals in Washington, DC, whether good cause for such

failure to appear has been established will be determined by the

presiding Member assigned to conduct the hearing.

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

(e) Withdrawal of hearing requests. * * * In the case of hearings

to be conducted by the Board of Veterans' Appeals in Washington, DC,

the notice of withdrawal must be sent to: Director, Administrative

Service (014), Board of

[[Page 20451]]

Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420.

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

(Approved by the Office of Management and Budget under control

number 2900-0085)

32. Section 20.703 is revised to read as follows:

Sec. 20.703 Rule 703. When right arises to hearing before the Board of

Veterans' Appeals at a Department of Veterans Affairs field facility.

A hearing before the Board of Veterans' Appeals at a Department of

Veterans Affairs field facility is a ``hearing on appeal.''

Accordingly, there is no right to such a hearing until a Notice of

Disagreement has been filed. Any request for such a hearing filed with

a Notice of Disagreement, or filed subsequent to the filing of a Notice

of Disagreement, will be accepted by the agency of original

jurisdiction. Requests for such hearings filed before a Notice of

Disagreement has been filed, or after the Board has entered a final

decision in the case on the issue (or issues) appealed will be

rejected, except for requests for such hearings after a Notice of

Disagreement has been filed appealing a denial of benefits in a

reopened claim which followed a prior Board decision or after a motion

for reconsideration of a prior Board decision has been granted.

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

33. In Sec. 20.704, the section heading; paragraphs (a), (c), (d),

and (e); and the authority citation are revised and paragraph (f) is

added to read as follows:

Sec. 20.704 Rule 704. Scheduling and notice of hearings conducted by

the Board of Veterans' Appeals at Department of Veterans Affairs field

facilities.

(a) General. Hearings are conducted by a Member or Members of the

Board of Veterans' Appeals during prescheduled visits to Department of

Veterans Affairs facilities having adequate physical resources and

personnel for the support of such hearings. The hearings will be

scheduled in the order in which requests for such hearings within that

area were received by the agency of original jurisdiction, except as

provided in paragraph (f). Requests for such hearings must be submitted

to the agency of original jurisdiction, in writing, and should not be

submitted directly to the Board of Veterans' Appeals.

* * * * *

(c) Requests for changes in hearing dates. Requests for a change in

a hearing date may be made at any time up to two weeks prior to the

scheduled date of the hearing if good cause is shown. Such requests

must be in writing, must explain why a new hearing date is necessary,

and must be filed with the office of the official of the Department of

Veterans Affairs who signed the notice of the original hearing date.

Examples of good cause include, but are not limited to, illness of the

appellant and/or representative, difficulty in obtaining necessary

records, and unavailability of a necessary witness. If good cause is

shown, the hearing will be rescheduled for the next available hearing

date after the appellant or his or her representative gives notice that

the contingency which gave rise to the request for postponement has

been removed. If good cause is not shown, the appellant and his or her

representative will be promptly notified and given an opportunity to

appear at the hearing as previously scheduled. If the appellant elects

not to appear at the prescheduled date, the request for a hearing will

be considered to have been withdrawn. In such cases, however, the

record will be submitted for review by the Member who would have

presided over the hearing. If the presiding Member determines that good

cause has been shown, the hearing will be rescheduled for the next

available hearing date after the contingency which gave rise to the

request for postponement has been removed.

(d) Failure to appear for a scheduled hearing. If an appellant (or

when a hearing only for oral argument by a representative has been

authorized, the representative) fails to appear for a scheduled hearing

and a request for postponement has not been received and granted, the

case will be processed as though the request for a hearing had been

withdrawn. No further request for a hearing will be granted in the same

appeal unless such failure to appear was with good cause and the cause

for the failure to appear arose under such circumstances that a timely

request for postponement could not have been submitted prior to the

scheduled hearing date. A motion for a new hearing date following a

failure to appear for a scheduled hearing must be in writing, must be

filed within 15 days of the originally scheduled hearing date, and must

explain why the appellant failed to appear for the hearing and why a

timely request for a new hearing date could not have been submitted.

Such motions must be filed with: Director, Administrative Service

(014), Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington,

DC 20420. Whether good cause for such failure to appear and the

impossibility of timely requesting postponement have been established

will be determined by the Member who would have presided over the

hearing. If good cause and the impossibility of timely requesting

postponement are shown, the hearing will be rescheduled for the next

available hearing date at the same facility after the appellant or his

or her representative gives notice that the contingency which gave rise

to the failure to appear has been removed.

(e) Withdrawal of hearing requests. A request for a hearing may be

withdrawn by an appellant at any time before the date of the hearing. A

request for a hearing may not be withdrawn by an appellant's

representative without the consent of the appellant. Notices of

withdrawal must be submitted to the office of the Department of

Veterans Affairs official who signed the notice of the hearing date.

(f) Advancement of the case on the hearing docket. A hearing may be

scheduled at a time earlier than would be provided for under paragraph

(a) upon written motion of the appellant or the representative showing

that the appellant is seriously ill or under severe financial hardship.

The motion must be filed with the Board of Veterans' Appeals, 810

Vermont Avenue, NW., Washington, DC 20420. The ruling on the motion

will be by the Member assigned as the presiding Member for the hearing.

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

(Approved by the Office of Management and Budget under control

number 2900-0085)

34. Section 20.705(b) and the authority citation are revised to

read as follows:

Sec. 20.705 Rule 705. Where hearings are conducted.

* * * * *

(b) At a Department of Veterans Affairs facility having adequate

physical resources and personnel for the support of such hearings.

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

Sec. 20.706 [Amended]

35. In Sec. 20.706, the authority citation is revised to read as

follows:

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

36. Section 20.707 is revised to read as follows:

Sec. 20.707 Rule 707. Designation of Member or Members to conduct the

hearing.

The Member or panel to whom a proceeding is assigned under

Sec. 19.3 of this part shall conduct any hearing before the Board in

connection with that proceeding. Where a proceeding has been assigned

to a panel, the Chairman,

[[Page 20452]]

or the Chairman's designee, shall designate one of the Members as the

presiding Member. The Member or Members who conduct the hearing shall

participate in making the final determination of the claim, subject to

the exception in Sec. 19.11(c) of this part (relating to

reconsideration of a decision).

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

37. Section 20.708 is revised to read as follows:

Sec. 20.708 Rule 708. Prehearing conference.

An appellant's authorized representative may request a prehearing

conference with the presiding Member of a hearing to clarify the issues

to be considered at a hearing on appeal, obtain rulings on the

admissibility of evidence, develop stipulations of fact, establish the

length of argument which will be permitted, or take other steps which

will make the hearing itself more efficient and productive. With

respect to hearings to be held before the Board at Washington, DC,

arrangements for a prehearing conference must be made through:

Director, Administrative Service (014), Board of Veterans' Appeals, 810

Vermont Avenue, NW., Washington, DC 20420. Requests for prehearing

conferences in cases involving hearings to be held before the Board at

Department of Veterans Affairs field facilities must be addressed to

the office of the Department of Veterans Affairs official who signed

the letter giving notice of the time and place of the hearing.

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

Sec. 20.709 [Amended]

38. Section 20.709 is amended by revising the authority citation to

read as follows:

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

39. Section 20.710 is amended by revising the authority citation to

read as follows:

Sec. 20.710 Rule 710. Witnesses at hearings.

* * * * *

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

40. Section 20.711 is amended by revising paragraphs (e) and (h)

and the authority citation to read as follows:

Sec. 20.711 Rule 711. Subpoenas.

* * * * *

(e) Ruling on motion for subpoena. Where the Chairman has assigned

the appeal to a Member or panel, the ruling on the motion will be made

by that Member or panel. Where the appeal has not been assigned, the

Chairman will assign the matter for the purpose of ruling on the

motion. Where the moving party seeks production of documents or other

tangible evidence, the Member or panel may condition the granting of

the motion upon the advancement by the moving party of the reasonable

cost of producing the books, paper, documents, or other tangible

evidence requested.

* * * * *

(h) Motion to quash or modify subpoena. If an individual served

with a subpoena considers the subpoena to be unreasonable or

oppressive, he or she may move that the subpoena be quashed or

modified. Such motions must be in writing and must explain why the

subpoena is unreasonable or oppressive and what relief is sought. Such

motions must be filed with the Board not more than 10 days following

receipt of the subpoena. Rulings on such motions will be made by the

Member or panel authorizing the subpoena, who will inform all

interested parties of the ruling in writing. The quashing of any

subpoena will be conditional upon the return of the check for fees and

mileage to the party on whose behalf the subpoena was issued.

(Authority: 38 U.S.C. 5711, 7102(a), 7107)

41. In Sec. 20.714, paragraph (a) introductory text is amended by

revising the first sentence; paragraph (a)(1) is amended by removing

``of the hearing panel'' in the second sentence, and by removing

``Chief, Hearing Section (014B)'' in the last sentence and adding, in

its place, ``Director, Administrative Service (014); and paragraph

(a)(4) introductory text and the authority citation at the end of the

section are revised to read as follows:

Sec. 20.714 Rule 714. Record of hearing.

(a) Board of Veterans' Appeals. A hearing before a Member or panel

of Members of the Board, whether held in Washington, DC, or at a

Department of Veterans Affairs field facility, will be recorded on

audio tape. * * *

* * * * *

(4) With respect to hearings conducted by a Member or Members of

the Board at a Department of Veterans Affairs field facility : * * *

* * * * *

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

42. In Sec. 20.715 the last two sentences and the authority

citation are revised to read as follows:

Sec. 20.715 Rule 715. Recording of hearing by appellant or

representative.

* * * In the case of hearings held before the Board of Veterans'

Appeals in Washington, DC, arrangements must be made with the Director

of the Administrative Service (014), Board of Veterans' Appeals, 810

Vermont Avenue, NW., Washington, DC 20420. In the case of hearings held

before the Board at Department of Veterans Affairs field facilities,

arrangements must be made through the office of the Department of

Veterans Affairs official who signed the letter giving notification of

the time and place of the hearing.

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

43. In Sec. 20.716 the last two sentences and the authority

citation are revised to read as follows:

Sec. 20.716 Rule 716. Correction of hearing transcripts.

* * * In the case of hearings held before the Board of Veterans'

Appeals, whether in Washington, DC, or in the field, the motion must be

filed with the Director, Administrative Service (014), Board of

Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. The

ruling on the motion will be made by the presiding Member of the

hearing.

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

44. Section 20.717, paragraph (c) is amended by removing ``Chief,

Hearing Section (0141F)'' and adding, in its place, ``Director,

Administrative Service (014); and by revising paragraph (d) and the

authority citation to read as follows:

Sec. 20.717 Rule 717. Loss of hearing tapes or transcripts--motion for

new hearing.

* * * * *

(d) Ruling on motion for a new hearing. The ruling on the motion

for a new hearing will be made by the Member who presided over the

hearing. If the presiding Member is no longer available, the ruling on

the motion may be made by the Member or Members to whom the case has

been assigned for a determination. In cases in which a final Board of

Veterans' Appeals decision has already been promulgated with respect to

the appeal in question, the Chairman will assign the matter in

accordance with Sec. 19.3 of this title. Factors to be considered in

ruling on the motion include, but will not be limited to, the extent of

the loss of the record in those cases where only a portion of a hearing

tape is unintelligible or only a portion of a transcript has been lost

or destroyed, and the extent and reasonableness of any delay in moving

for a new hearing. If a new hearing is granted in a case in which a

final Board of Veterans' Appeals decision has already been promulgated,

a supplemental decision will be issued.

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

[[Page 20453]]

Subpart J--Action by the Board

45. Section 20.900 is amended by revising paragraph (b) and the

authority citation, and by adding a new paragraph (d) to read as

follows:

Sec. 20.900 Rule 900. Order of consideration of appeals.

* * * * *

(b) Appeals considered in docket order. Appeals are considered in

the order in which they are entered on the docket, except as provided

in paragraphs (c) and (d).

* * * * *

(d) Consideration of appeals remanded by the United States Court of

Veterans Appeals. A case remanded by the United States Court of

Veterans Appeals for additional development or other appropriate action

will be treated expeditiously by the Board without regard to its place

on the Board's docket.

(Authority: 38 U.S.C. 7107, Pub. Law No. 103-446 Sec. 302)

46. Section 20.901(e) is revised to read as follows:

Sec. 20.901 Rule 901. Medical opinions and opinions of the General

Counsel.

* * * * *

(e) For purposes of this section, the term ``the Board'' includes

the Chairman, the Vice Chairman, any Deputy Vice Chairman, and any

Member of the Board before whom a case is pending.

(Authority: 38 U.S.C. 5107(a), 7104(c), 7109)

Subpart K--Reconsideration

47. Section 20.1003 is revised to read as follows:

Sec. 20.1003 Rule 1003. Hearings on reconsideration.

After a motion for reconsideration has been allowed, a hearing will

be granted if an appellant requests a hearing before the Board. The

hearing will be held by a Member or Members assigned to the

reconsideration panel. A hearing will not normally be scheduled solely

for the purpose of receiving argument by a representative. Such

argument should be submitted in the form of a written brief. Oral

argument may also be submitted on audio cassette for transcription for

the record in accordance with Rule 700(d) (Sec. 20.700(d) of this

part). Requests for appearances by representatives alone to personally

present argument to a Member or panel of Members of the Board may be

granted if good cause is shown. Whether good cause has been shown will

be determined by the presiding Member.

(Authority: 38 U.S.C. 7102, 7103, 7105(a))

Subpart L--Finality

48. In section 20.1100(a), the last sentence is amended by removing

``Section'' and adding, in its place, ``Panel''; and the first sentence

is revised to read as follows:

Sec. 20.1100 Rule 1100. Finality of decisions of the Board.

(a) General. All decisions of the Board will be stamped with the

date of mailing on the face of the decision. * * *

* * * * *

Subpart N--Miscellaneous

Sec. 20.1304 [Amended]

49. In Sec. 20.1304 paragraph (b) is amended by removing the next-

to-the-last sentence reading ``The ruling on the motion will be by the

Chairman.''.

[FR Doc. 96-11279 Filed 5-6-96; 8:45 am]

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