Appeals Regulations: Remand for Further Development

DEPARTMENT OF VETERANS AFFAIRS

Board of Veterans' Appeals

38 CFR Part 19

RIN 2900-AI50

Appeals Regulations: Remand for Further Development

AGENCY: Board of Veterans' Appeals, Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: This document proposes to change the appeals regulations of

the Board of Veterans' Appeals (Board) of the Department of Veterans

Affairs (VA). The regulations would be changed regarding the

circumstances in which the Board must remand a case to the VA field

facility with original jurisdiction in the case. The changes are

proposed to help avoid unnecessary remands.

DATES: Comments must be received on or before August 4, 1997.

ADDRESSES: Mail or hand deliver written comments to: Director, Office

of Regulations Management (02D), Department of Veterans Affairs, 810

Vermont Ave., NW, Room 1154, Washington, DC 20420. Comments should

indicate that they are submitted in response to ``RIN 2900-AI72.'' All

written comments received will be available for public inspection at

the above address in the Office of Regulations Management, Room 1158,

between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday

(except holidays).

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: The Board is an administrative body that

decides appeals from denials of claims for veterans' benefits. The

appeals come to the Board from ``agencies of original jurisdiction''

(AOJs), typically one of VA's 58 regional offices.

The provisions of 38 CFR 19.9 require the Board to remand a case to

the AOJ if ``it [were] determined that further evidence or

clarification of the evidence or correction of a procedural defect is

essential for a proper appellate decision.'' The current rule appears

to be unsatisfactory in two ways.

First, Sec. 19.9 only imposes the requirement for a remand; it does

not except specific kinds of evidentiary development we intended the

Board to carry out without remand to an AOJ. Those specific kinds of

evidentiary development are (1) Board requests for opinions from the VA

Under Secretary for Health, the Armed Forces Institute of Pathology,

the VA General Counsel, and independent medical experts under 38 CFR

20.901, see Austin v. Brown, 6 Vet. App. 547, 553-54 (1994), and (2)

Board supplementation of the record with recognized medical treatises

in accordance with Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).

Proposed Sec. 19.9(b) would except from the remand requirement each of

these kinds of evidentiary development, as well as matters over which

the Board has original jurisdiction.

Second, by requiring a remand to correct a procedural defect whose

correction is essential for a proper appellate decision, Sec. 19.9

causes unnecessary remands because some procedural defects cannot be

corrected by an AOJ or can be corrected more efficiently by the Board

itself. For example, if an appellant's desires concerning a hearing are

unclear, the Board can clarify them as easily as can an AOJ. A remand

merely for clarification of an appellant's hearing desires would be

time-consuming, and premature if the appellant wanted a hearing before

the Board. Therefore, it is proposed to amend Sec. 19.9(a) to not

require a remand to clarify procedural matters before the Board, such

as an appellant's request for a hearing before the Board.

Avoiding unnecessary remands helps the Board reduce its response

time on appeals. A remand by the Board is in the nature of a

preliminary order, not a final Board decision, 38 CFR 20.1100(b);

Zevalkink v. Brown, 6 Vet. App. 483, 488 (1994), and results in at

least one additional adjudication at the AOJ, 38 CFR 19.38. If that

additional adjudication does not result in the granting of all benefits

sought, the case must be returned to the Board for a final decision.

Id. In any event, a remand necessarily extends the time an appellant

must wait for a final decision on his or her claim. In addition,

because the majority of remands eventually return to the Board for

adjudication, remands increase the Board's response time on appeals in

general.

Remands for technical reasons that do not affect an appellant's

right to due process--such as the choice of representative,

clarification of the issues on appeal, or requests for hearings before

the Board--do not produce evidence which can result in a grant of

benefits by the AOJ. Particularly when such clarification could be

easily undertaken by the Board, those remands result only in a return

of the case to the Board with procedural clarification, needless delay

for the individual appellant and additional delay for all appellants.

The purpose of this proposal to change Sec. 19.9 is to reduce

unnecessary remands, while protecting appellants' right to have any

evidence considered in the first instance by the AOJ.

Proposed Sec. 19.9 would require the Board to remand a case to the

AOJ when additional evidence or clarification of the evidence or

correction of a procedural defect is essential for a proper appellate

decision, but would specify that the Board need not remand a case to

clarify procedural matters before the Board, such as the choice of

representative, the issues on appeal, or requests for hearings before

the Board.

The proposed rule would not apply to requests for medical or legal

opinions under 38 CFR 20.901, which continue to be exceptions to the

general rule requiring remand to the AOJ if new evidence is properly

before the Board. See Austin v. Brown, 6 Vet. App. 547, 553-54 (1994)

(Sec. 20.901 ``appear[s] to be the exclusive regulatory exception to

the general rule of mandatory remand under Sec. 19.9''). The rule also

would not apply to matters in which the Board has original jurisdiction

under 38 CFR 20.609 (relating to representatives' fees) and Sec. 20.610

(relating to representatives' expenses), since those cases, by their

terms, do not involve adjudications by AOJs.

VA routinely provides for a 60-day comment period for proposed

rules. However, the comment period for this document is shortened to 30

days. We believe that VA should consider the issues raised by this

document on an expedited basis since it appears that adoption of the

proposal would help avoid unnecessary remands.

The Secretary hereby certifies that the adoption of the proposed

rule would not

[[Page 36039]]

have a significant economic impact on a substantial number of small

entities as they are defined in the Regulatory Flexibility Act, 5

U.S.C. 601-612. This proposed rule would affect only VA's processing of

claims and will not affect small businesses. Therefore, pursuant to 5

U.S.C. 605(b), this proposed rule is exempt from the initial and final

regulatory flexibility analyses requirements of sections 603 and 604.

List of Subjects in 38 CFR Part 19

Administrative practice and procedure, Claims, Veterans.

Approved: June 25, 1997.

Jesse Brown,

Secretary of Veterans Affairs.

For the reasons set out in the preamble, 38 CFR part 19 is proposed

to be amended 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).

2. In subpart A, Sec. 19.9 is revised to read as follows:

Sec. 19.9 Remand for further development.

(a) General. If 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. A remand is not required to clarify procedural

matters before the Board, including appellant's choice of

representative before the Board, the issues on appeal, and requests for

hearings before the Board.

(b) Scope. This section does not apply to:

(1) The Board's requests for opinions under Rule 901 (Sec. 20.901

of this chapter);

(2) The Board's supplementation of the record with recognized

medical treatises; and

(3) Matters over which the Board has original jurisdiction

described in Rules 609 and 610 (Secs. 20.609 and 20.610 of this

chapter).

(Authority: 38 U.S.C. 7102, 7103(c), 7104(a))

[FR Doc. 97-17414 Filed 7-2-97; 8:45 am]

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