VA Claims and Appeals Modernization

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Federal Register › Vol. 83 › 83 FR 39818

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DEPARTMENT OF VETERANS AFFAIRS 38 CFR Parts 3, 8, 14, 19, 20, and 21 RIN 2900-AQ26 VA Claims and Appeals Modernization AGENCY:

Department of Veterans Affairs.

ACTION:

Proposed rule.

SUMMARY:

The Department of Veterans Affairs (VA) is proposing to amend its claims adjudication, appeals, and Rules of Practice of the Board of Veterans' Appeals (Board) regulations. In addition, VA proposes to revise its regulations with respect to accreditation of attorneys, agents, and Veterans Service Organization (VSO) representatives; the standards of conduct for persons practicing before VA; and the rules governing fees for representation. This rulemaking is needed to implement the Veterans Appeals Improvement and Modernization Act. That law amended the procedures applicable to administrative review and appeal of VA decisions denying claims for benefits, creating a new, modernized review system.

Unless otherwise specified, VA intends to make the proposed regulatory changes applicable to claims processed under the new review system, which generally applies where an initial VA decision on a claim is provided on or after the effective date or where a claimant has elected to opt into the new review system under established procedures.

DATES:

Comments must be received by VA on or before October 9, 2018 to be considered in the formulation of the final rule.

ADDRESSES:

Written comments may be submitted through www.Regulations.gov ; by mail or hand-delivery to Director, Regulation Policy and Management (00REG), Department of Veterans Affairs, 810 Vermont Avenue NW, Room 1063B, Washington, DC 20420; or by fax to (202) 273-9026. Comments should indicate that they are submitted in response to “RIN 2900-AQ26—VA Claims and Appeals Modernization.” Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1063B, between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday (except holidays). Please call (202) 461-4902 for an appointment

to (202) 273-9026. Comments should indicate that they are submitted in response to “RIN 2900-AQ26—VA Claims and Appeals Modernization.” Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1063B, between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday (except holidays). Please call (202) 461-4902 for an appointment. This is not a toll-free number. In addition, during the comment period, comments may be viewed online through the Federal Docket Management System (FDMS) at www.Regulations.gov .

FOR FURTHER INFORMATION CONTACT:

Veterans Benefits Administration information: Jennifer Williams, Senior Management and Program Analyst, Appeals Management Office, Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202) 530-9124 (this is not a toll-free number). Board of Veterans' Appeals information: Rachel Sauter, Counsel for Legislation, Regulations, and Policy, Board of Veterans' Appeals. Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202) 632-5555 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION:

Modernizing the appeals process is a top priority for VA. In fiscal year (FY) 2017, claimants generally waited less than 125 days for an initial decision on VA disability compensation claims; however, they waited an average of 3 years for a final decision if they chose to appeal. Moreover, in FY2017 those claimants who chose to continue their appeal to the Board waited an average of 7 years for a decision from the date that they initiated their appeal, and the Board decision may not have resolved the appeal.

they initiated their appeal, and the Board decision may not have resolved the appeal.

Public Law (Pub. L.) 115-55, the Veterans Appeals Improvement and Modernization Act of 2017 (hereinafter “Pub. L. 115-55”) provides much-needed comprehensive reform for the legacy appeals process, to help ensure that claimants receive a timely decision on review where they disagree with a VA claims adjudication. It replaces the current VA appeals process with a new review process that makes sense for veterans, their advocates, VA, and stakeholders.

In the current VA appeal process, which is set in law, appeals are non-linear and may require VA staff to engage in gathering and receiving evidence and re-adjudicating appeals based on new evidence. This process of gathering evidence and readjudication can add years to the appeals process, as appeals churn between the Board and the agency of original jurisdiction. Additionally, jurisdiction of appeals processing is shared between the Board and the agency of original jurisdiction, which, for purposes of the changes made by this proposed rule, is typically the Veterans Benefits Administration (VBA).

The new statutory appeals framework features three differentiated lanes from which a claimant may choose in seeking review of a VA denial (or partial denial) of a claim. One lane is for review of the same evidence by a higher-level claims adjudicator in the agency of original jurisdiction (higher-level review); one lane is for submitting new and relevant evidence with a supplemental claim to the agency of original jurisdiction (supplemental claim); and one lane is the appeals lane for seeking review by a Veterans Law Judge at the Board by filing a Notice of Disagreement (appeal to the Board). In an appeal to the Board, Public Law 115-55 eliminates intermediate and duplicative steps previously required, such as the Statement of the Case (SOC) and the substantive appeal

emental claim to the agency of original jurisdiction (supplemental claim); and one lane is the appeals lane for seeking review by a Veterans Law Judge at the Board by filing a Notice of Disagreement (appeal to the Board). In an appeal to the Board, Public Law 115-55 eliminates intermediate and duplicative steps previously required, such as the Statement of the Case (SOC) and the substantive appeal. Furthermore, the new law will allow the Board to maintain three separate dockets for handling the following categories of appeals: (1) Appeals where the claimant has requested a hearing, (2) appeals with no request for a hearing but where the claimant elects to submit other forms of evidence, and (3) appeals where the claimant requests Board review on the same evidence that was before the agency of original jurisdiction. These separate dockets will allow the Board to more efficiently and effectively manage distinctly different types of work. As a result of the new lane options, claimants will have increased choice for resolving disagreements with a VA decision on a claim.

In addition, the differentiated lanes will allow the agency of original jurisdiction to be the claim development entity within VA and the Board to be the appeals entity. This design is intended to reduce the uncertainty caused by the current process, in which a claimant initiates an appeal in the agency of original jurisdiction and the appeal is often a years-long continuation of the claim development process. It ensures that all claim development by the agency of original jurisdiction occurs in the context of either an initial or supplemental claim filed with the agency of original jurisdiction, rather than in an appeal.

The agency of original jurisdiction's duty to assist in developing evidence will continue to apply when a claimant initiates a new or supplemental claim

he claim development process. It ensures that all claim development by the agency of original jurisdiction occurs in the context of either an initial or supplemental claim filed with the agency of original jurisdiction, rather than in an appeal.

The agency of original jurisdiction's duty to assist in developing evidence will continue to apply when a claimant initiates a new or supplemental claim. However, where a claimant seeks review of an agency of original jurisdiction decision, the duty to assist generally no longer applies, unless and until the claimant elects to file a supplemental claim, at which point the duty to assist applies to the supplemental claim. The proposed regulations also contain a mechanism to correct any duty to assist errors occurring before the agency of original jurisdiction, if such errors are discovered on review or appeal, by requiring that the claim be returned to

The statutory requirements, which we propose to codify in these proposed regulations, provide a claimant who is not fully satisfied with the result of any review lane one year to seek further review while preserving an effective date for benefits based upon the original filing date of the claim. For example, a claimant could go straight from an initial agency of original jurisdiction decision on a claim to an appeal to the Board. If the Board decision was not favorable, but it helped the claimant understand what evidence was needed to support the claim, then the claimant would have one year to submit new and relevant evidence to the agency of original jurisdiction in a supplemental claim without fearing loss of the effective date for choosing to go to the Board first.

s of the effective date for choosing to go to the Board first.

The differentiated lane framework required by statute and proposed to be codified in these regulations has many advantages. It provides a streamlined process that allows for early resolution of a claimant's appeal and the lane options allow claimants to tailor the process to meet their individual needs and control their VA experience. It also enhances claimants' rights by preserving the earliest possible effective date for an award of benefits, regardless of the option(s) they choose, as long as the claimant pursues review of a claim in any of the lanes within the established timeframes. By having a higher-level review lane within the claims process and a lane at the Board providing for review on only the record considered by the initial claims adjudicator, the new process provides a feedback mechanism for targeted training and improved quality in the VBA or other claims adjudication agency.

To ensure that as many claimants as possible benefit from the streamlined features of the new process, Public Law 115-55 and the proposed regulations provide opportunities for claimants and appellants in the legacy system to take advantage of the new system. Some claimants who receive a decision prior to the effective date of the law will be able to participate in the new system. Other claimants who receive an SOC or Supplemental Statement of the Case (SSOC) in a legacy appeal after the effective date of the law will also have an opportunity to opt-in to the new system.

VA initially met in March 2016 with Veterans Service Organizations (VSOs), congressional staff, and other stakeholders to develop a plan to reform the current appeals process. The result of this collaborative work was a new appeals framework, with the same fundamental features as the process described in section 2 of Public Law 115-55. This new process will provide veterans with timely, fair, and high quality decisions

rch 2016 with Veterans Service Organizations (VSOs), congressional staff, and other stakeholders to develop a plan to reform the current appeals process. The result of this collaborative work was a new appeals framework, with the same fundamental features as the process described in section 2 of Public Law 115-55. This new process will provide veterans with timely, fair, and high quality decisions. The engagement of those organizations that participated in the March 2016 “Appeals Summit” ultimately led to a stronger proposal, as VA was able to incorporate stakeholder feedback and benefit from the perspective of those with extensive experience in helping veterans navigate the complex VA appeals process.

In November 2017, VA again met with stakeholders to highlight important changes required by the new law, answered questions, and discussed specific concerns. VA is grateful to all of the stakeholders for their contributions of time, energy, and expertise in this effort.

The majority of amendments addressed in this proposed rule are mandatory to comply with the law. Through careful collaboration with VA, VSOs, and other stakeholders, in enacting Public Law 115-55, Congress provided a highly detailed statutory framework for claims and appeals processing. VA is unable to alter proposed amendments that directly implement mandatory statutory provisions. In addition to implementing mandatory requirements, VA proposes a few interpretive or gap-filling amendments to the regulations which are not specifically mandated by Public Law 115-55, but that VA believes are in line with the law's goals to streamline and modernize the claims and appeals process. These amendments fill gaps in the new law left by Congress, reduce unnecessary regulations, streamline and modernize processes, and improve services for Veterans.

This proposed rule contains amendments to parts 3, 8, 14, 19, 20, and 21, as described in detail below

Public Law 115-55, but that VA believes are in line with the law's goals to streamline and modernize the claims and appeals process. These amendments fill gaps in the new law left by Congress, reduce unnecessary regulations, streamline and modernize processes, and improve services for Veterans.

This proposed rule contains amendments to parts 3, 8, 14, 19, 20, and 21, as described in detail below.

Part 3—Adjudication

VA proposes to amend the regulations in 38 CFR part 3 as described in the section-by-section supplementary information below. These regulations govern the adjudication of claims for monetary benefits ( e.g., compensation, pension, dependency and indemnity compensation, and burial benefits), which are administered by the VBA. Other VA agencies of original jurisdiction may have adopted portions of these regulations, or their content, with respect to their adjudication and review processes.

§ 3.1 Definitions.

VA proposes to amend the definition of “claim” in § 3.1(p), to add definitions of the terms “initial claim” and “supplemental claim,” as the distinction between those terms is significant under the changes made by Public Law 115-55, which provides for the filing and adjudication of supplemental claims and adds a definition of supplemental claim at 38 U.S.C. 101(36). VA proposes to define an “initial claim” as a claim for a benefit other than a supplemental claim, including the first filing by a claimant (original claim) and a subsequent claim filed by a claimant for an increase in a disability evaluation, a new benefit, or a new disability. The definition of a claim for increase is moved into this section from § 3.160 and is expanded to more accurately reflect the nature of such claims

nitial claim” as a claim for a benefit other than a supplemental claim, including the first filing by a claimant (original claim) and a subsequent claim filed by a claimant for an increase in a disability evaluation, a new benefit, or a new disability. The definition of a claim for increase is moved into this section from § 3.160 and is expanded to more accurately reflect the nature of such claims.

Public Law 115-55, section 2(a), defines “supplemental claim” as “a claim for benefits under laws administered by the Secretary filed by a claimant who had previously filed a claim for the same or similar benefits on the same or similar basis.” The Secretary is required to readjudicate the claim if new and relevant evidence is presented or secured with respect to a supplemental claim. VA proposes to clarify in the regulatory definition of supplemental claim that VA must have issued a decision with respect to the previously filed claim before a supplemental claim can be filed. The inclusion of this requirement for a supplemental claim is consistent with the language of revised 38 U.S.C. 5108, which requires the Secretary to “readjudicate” a claim where “new and relevant evidence is presented or secured with respect to a supplemental claim.” This language presupposes that VA has already adjudicated the claim and issued a notice of decision before a supplemental claim is filed.

With the inclusion of additional definitions under § 3.1(p), VA proposes to amend the cross references to include a reference to supplemental claims under the new § 3.2501.

§ 3.103 Procedural Due Process and Other Rights

Under 38 U.S.C. 5104(a), when VA makes a decision affecting the provision of benefits to a claimant, VA must provide the claimant and his or her representative with notice of the decision. Under current 38 U.S.C.

Public Law 115-55 revised 38 U.S.C

o amend the cross references to include a reference to supplemental claims under the new § 3.2501.

§ 3.103 Procedural Due Process and Other Rights

Public Law 115-55 revised 38 U.S.C. 5104(b) to specify that each notice provided under section 5104(a) must include all of the following: Identification of the issues adjudicated; a summary of the evidence considered by VA; a summary of applicable laws and regulations; identification of findings favorable to the claimant; in the case of a denial, identification of elements not satisfied leading to the denial; an explanation of how to obtain or access evidence used in making the decision; and, if applicable, identification of the criteria that must be satisfied to grant service connection or the next higher-level of compensation.

VA proposes to amend its procedures for issuing decisions to conform with the amendments to 38 U.S.C. 5104(b). Enhanced decision notices will allow claimants and their representatives to make more informed choices about whether to seek further review and, if so, which of the new review lanes best fits the claimant's needs: Filing a supplemental claim with the agency of original jurisdiction, requesting a higher-level review of the initial decision within the agency of original jurisdiction, or appealing to the Board.

In addition, to comply with 38 U.S.C. 5104B(d), VA proposes to amend § 3.103 to explain that the evidentiary record for a claim before the agency of original jurisdiction closes when VA issues notice of a decision on said claim. A claimant may reopen the evidentiary record by submitting a supplemental claim or claim for an increase on the prescribed application form. Consistent with its discretionary authority under 38 U.S.C

38 U.S.C. 5104B(d), VA proposes to amend § 3.103 to explain that the evidentiary record for a claim before the agency of original jurisdiction closes when VA issues notice of a decision on said claim. A claimant may reopen the evidentiary record by submitting a supplemental claim or claim for an increase on the prescribed application form. Consistent with its discretionary authority under 38 U.S.C. 501(a), VA proposes to require a prescribed application form for submitting a supplemental claim consistent with current regulations applicable to claims. Submission of a substantially complete initial or supplemental claim also triggers VA's duty to assist in the gathering of evidence under § 3.159. The evidentiary record also reopens when a claim must be readjudicated due to identification of a duty to assist error on higher-level review or by the Board. Whenever the record reopens, evidence submitted to the agency of original jurisdiction while the record was closed will become part of the record to be considered for a subsequent adjudication.

VA also proposes to make several nomenclature changes within § 3.103 to update language and clarify that a hearing before VA may be conducted in person or through videoconferencing tools available at a regional office closest to the claimant. The changes also clarify that a hearing will not be provided in connection with a request for higher-level review. Claimants will have the opportunity to request an informal conference in connection with a request for higher-level review as provided in proposed § 3.2601.

view as provided in proposed § 3.2601.

Finally, VA proposes to delete the last sentence of § 3.103(c)(2), allowing a claimant to request visual examination during a hearing by a physician designated by VA. Due to the complex considerations involved in making determinations on the nature, origin, or degree of disability, a physician's visual assessment during a hearing has significant limitations. Disability assessments typically involve a comprehensive clinical evaluation with appropriate standardized testing to establish the diagnosis or origin, or characterize the severity of impairment. For some conditions, this could include specialized equipment, tests, or training that would not be available by a physician during a visual examination; examples of specialized testing could include neuropsychological evaluations for traumatic brain injury (TBI) claimants. Accordingly, VA proposes to remove the reference that claimants may request visual examination by a physician at the hearing. Although VA does not currently have data on the number of examinations requested by veterans during hearings, these types of examinations are obsolete as Veterans and VA can now utilize several other methods to add visual examination findings into the record. These include Disability Benefits Questionnaires (DBQs) that a claimant may ask any physician to complete to document visual findings and contract examinations which support VA's disability evaluation process and make obtaining examinations easier and more efficient by bypassing the requirement to formally schedule one with a VA provider.

§ 3.104 Finality and Binding Nature of Decisions

ent to formally schedule one with a VA provider.

§ 3.104 Finality and Binding Nature of Decisions

VA proposes to amend § 3.104(a), concerning the binding nature of decisions, to conform with other regulatory changes implementing Public Law 115-55. In addition, VA proposes to remove the word “final” from this section for consistency with the definition of finally adjudicated claim in § 3.160(d). Decisions issued by an agency of original jurisdiction are binding on VA field offices under § 3.104 when issued, even though the decision is not finally adjudicated because the period for a claimant to seek review of the decision is still open. The current wording of § 3.104 refers to such decisions as “final” and binding when they are issued. The definition of “finally adjudicated” in § 3.160(d) will be maintained and a decision on a claim is final when the claim is finally adjudicated.

In addition, Public Law 115-55 added a new section, 38 U.S.C. 5104A, providing that any findings favorable to the claimant will be binding on all subsequent adjudicators within VA, unless clear and convincing evidence is shown to the contrary to rebut the favorable findings. VA proposes to amend § 3.104 to include a new paragraph implementing this provision. VA further proposes to define a finding as a conclusion on either a question of fact or on an application of law to facts.

§ 3.105 Revision of Decisions

VA proposes to amend § 3.105(a) to incorporate existing legal standards recognized in judicial decisions applicable to revision of final decisions under 38 U.S.C. 5109A. This statute allows for revision or reversal of final decisions by the Secretary based on clear and unmistakable error (CUE). These rules are set forth in proposed § 3.105(a)(1). Proposed § 3.105(a)(2) contains standards applicable to revision of decisions that are not yet final.

Proposed § 3.105(a)(1) incorporates judicial standards applicable to revision of final decisions based on CUE under 38 U.S.C. 5109A

llows for revision or reversal of final decisions by the Secretary based on clear and unmistakable error (CUE). These rules are set forth in proposed § 3.105(a)(1). Proposed § 3.105(a)(2) contains standards applicable to revision of decisions that are not yet final.

Proposed § 3.105(a)(1) incorporates judicial standards applicable to revision of final decisions based on CUE under 38 U.S.C. 5109A. No substantive changes are intended to the existing law governing revision of final agency of original jurisdiction decisions based on CUE. The proposed amendments conform regulations with respect to revision of final decisions by the agency of original jurisdiction with similar regulatory changes previously promulgated with respect to revision of final Board decisions based on CUE under 38 U.S.C. 7111. See 38 CFR 20.1400—20.1411; 64 FR 2134 (January 13, 1999). Those changes similarly incorporated judicially recognized CUE principles and were upheld in Disabled American Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000). The Court in Disabled American Veterans found that the enactment of statutory sections 5109A and 7111 “ `codified . . . the Court of Appeals for Veterans Claims' long standing interpretation of CUE.' ” Id. at 687 (quoting Bustos v. West, 179 F.3d 1378, 1380 (Fed. Cir. 1999)).

Judicial decisions have recognized that CUE applies only to final administrative decisions. See, e.g., Richardson v. Nicholson, 20 Vet.App. final adjudication” and citing the definition of “finally adjudicated claim” in 38 CFR 3.160(d)); see also Cook v. Principi, 318 F.3d 1334, 1342 (Fed. Cir. 2002)

rpretation of CUE.' ” Id. at 687 (quoting Bustos v. West, 179 F.3d 1378, 1380 (Fed. Cir. 1999)).

Further, CUE is a specific and rare kind of error, requiring the claimant to demonstrate three elements: (1) The error must be of a specific type—“either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied;” (2) the error must be “undebatable;” and (3) the error must undebatably be outcome-determinative, meaning that the error would have “manifestly changed the outcome” at the time it was made. Willsey v. Peake, 535 F.3d 1368, 1371 (Fed. Cir. 2008) (citing Cook, 318 F.3d at 1344 and Russell v. Principi, 3 Vet.App. 310, 313-14 (1992)); see also Cushman v. Shinseki, 576 F.3d 1290, 1301-02 (Fed. Cir. 2009) (error must be outcome determinative); Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999) (affirming “manifestly changed outcome” requirement).

An error is undebatable if “no reasonable adjudicator could weigh the evidence in the way that the adjudicator did.” Willsey, 535 F.3d at 1372; Russell, 3 Vet.App. at 313-14 (CUE errors must be undebatable, such that “reasonable minds could only conclude that the original decision was fatally flawed at the time it was made”). Accordingly, CUE cannot be based on a “disagreement as to how the facts were weighed or evaluated.” Id. at 313.

ally flawed at the time it was made”). Accordingly, CUE cannot be based on a “disagreement as to how the facts were weighed or evaluated.” Id. at 313.

The error must be shown based solely on the evidentiary record as it existed at the time of the disputed regional office (RO) adjudication and the law that existed at the time of subject adjudication. Cook, 318 F.3d at 1343-45; Russell, 3 Vet. App. at 314 (“New or recently developed facts or changes in the law subsequent to the original adjudication . . . do not provide grounds for revising a finally decided case”); Jordan v. Nicholson, 401 F.3d 1296, 1299 (Fed. Cir. 2005) (subsequent change in interpretation of statute not applicable to CUE request as to final VA decisions).

The caselaw also addresses burden of proof issues. As the Court stated in Andre v. Principi, “ 'the party bringing a CUE challenge to a final RO decision bears the burden of proving that the decision was based on a clear and unmistakable error.' ” 301 F.3d. 1354, 1361 (Fed. Cir. 2002) (quoting Pierce v. Principi, 240 F.3d 1348,1355 (Fed. Cir. 2001)). “ `This burden is not satisfied by the mere assertion that the decision contained CUE; instead, the party must describe the alleged error “with some degree of specificity” and must provide persuasive reasons `as to why the result would have been manifestly different but for the alleged error.' ” Id. (citation omitted). Mere allegations of failure to follow regulations or failure to give due process, or any other general, non-specific claims of error, are insufficient to raise a claim of CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). An allegation that the Secretary did not fulfill the duty to assist is insufficient to raise the issue of CUE. See, e.g., Crippen v. Brown, 9 Vet. App. 412, 418 (1996).

Proposed § 3.105(a)(2) applies to decisions that are not finally adjudicated at the agency of original jurisdiction

non-specific claims of error, are insufficient to raise a claim of CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). An allegation that the Secretary did not fulfill the duty to assist is insufficient to raise the issue of CUE. See, e.g., Crippen v. Brown, 9 Vet. App. 412, 418 (1996).

Proposed § 3.105(a)(2) applies to decisions that are not finally adjudicated at the agency of original jurisdiction. The proposed language reflects current policy and practice with respect to matters adjudicated under part 3 of VA's regulations that the outcome of a decision will not be revised by another adjudicator in the agency of original jurisdiction on his or her own initiative, based on the same evidentiary record, unless a determination is made that the outcome of the decision is clearly erroneous. This reflects a policy decision by VA to restrict the discretion of subsequent adjudicators to reverse prior determinations in the absence of new evidence. In accordance with new 38 U.S.C. 5104A, the adjudicator may, in determining whether the result was clearly erroneous, take into account any favorable findings subject to reversal based on clear and convincing evidence to the contrary. Determinations under § 3.105(a)(2) are therefore legally distinct from determinations under § 3.105(a)(1) as to whether a final decision should be revised based on CUE.

In addition, VA proposes to amend paragraph (b) to clarify that difference of opinion authority is given to VA employees designated to complete higher-level reviews to implement the requirement in new 38 U.S.C. 5104B that a higher-level review is de novo, subject to the rule protecting favorable findings. A new paragraph is also added at the end of § 3.105 to reflect that VA decisions may now be revised through resolution of a timely-filed supplemental claim under 38 U.S.C. 5108 or higher-level review under 38 U.S.C. 5104B

ted to complete higher-level reviews to implement the requirement in new 38 U.S.C. 5104B that a higher-level review is de novo, subject to the rule protecting favorable findings. A new paragraph is also added at the end of § 3.105 to reflect that VA decisions may now be revised through resolution of a timely-filed supplemental claim under 38 U.S.C. 5108 or higher-level review under 38 U.S.C. 5104B.

No changes are necessary to §§ 3.105(c) through (h), which govern severance of service connection and reduction in evaluations, such as reductions in pension payments and reductions in evaluations of a service-connected disability. The standards and procedures set forth in these paragraphs will continue to apply and an adjudicator considering whether to reduce or discontinue an evaluation under § 3.105 is not bound under the “favorable finding” rule in new section 5104A of the statute that protects findings relating to a disability evaluation for a particular period of time but does not preclude a subsequent finding that the disability thereafter improved.

Rating evaluations and pension awards are running awards, resulting in recurring payments being made subsequent to an initial award. See, e.g., Dent v. McDonald, 27 Vet.App. 362, 372 (2015) (pension is a “running award,” meaning “recurring payments made subsequent to an initial award”). Changes in the underlying facts that led to the original award may warrant a discontinuance or reduction of a running award. See, e.g., 38 U.S.C § 5112 (governing effective dates of reductions and discontinuances); 38 CFR 3.273 (describing monthly pension as a “running award” and requiring adjustment when there is a change in income); § 3.105 (noting that the provisions regarding the date of discontinuance of awards are applicable to running awards such as monthly pension and those based on disability evaluations); § 3.344 (governing disability evaluation reductions on the basis of medical reports showing improvement in a service-connected condition)

a “running award” and requiring adjustment when there is a change in income); § 3.105 (noting that the provisions regarding the date of discontinuance of awards are applicable to running awards such as monthly pension and those based on disability evaluations); § 3.344 (governing disability evaluation reductions on the basis of medical reports showing improvement in a service-connected condition). Determinations of whether a running award should be adjusted are based on different facts for a different time period than that for which the initial award was made. Accordingly, a determination of the appropriate level of a running award made in an initial decision is a finding different than a later finding as to whether the previously assigned level should be reduced or discontinued. Therefore, an adjudicator considering whether to reduce or discontinue an evaluation under § 3.105 is not assessing prior entitlement under the initial award of disability evaluation and is not bound by prior “favorable findings” under section 5104A of the statute. No change to the standards and procedures in §§ 3.105(c) through (h) is therefore required.

§ 3.151 Claims for Disability Benefits

Public Law 115-55 added 38 U.S.C. 5104C, which outlines the available review options following a decision by the agency of original jurisdiction. VA proposes to amend §§ 3.2500 and 3.151 consistent with the statute to provide that a claimant may request one of the three review options under § 3.2500 (higher-level review, supplemental

Proposed § 3.151(c) defines an issue for this purpose as an adjudication of a specific entitlement. For example, with respect to service-connected disability compensation, an issue would be entitlement to compensation for a particular disability (and any ancillary benefits). This definition of “issue” is consistent with the definition of issue in § 20.1401(a), as interpreted by the U.S. Court of Appeals for Veterans Claims. See Hillyard v. Shinseki, 24 Vet. App

ication of a specific entitlement. For example, with respect to service-connected disability compensation, an issue would be entitlement to compensation for a particular disability (and any ancillary benefits). This definition of “issue” is consistent with the definition of issue in § 20.1401(a), as interpreted by the U.S. Court of Appeals for Veterans Claims. See Hillyard v. Shinseki, 24 Vet. App. at 353 (equating the term issue with a “claim” and “not a theory or an element of a claim,” citing Disabled American Veterans, 234 F.3d at 693). The option to select different review lanes would not extend to specific components of the same entitlement claim, because allowing a claim to be splintered into several pieces for review, each potentially subject to different evidentiary rules and timelines, would render the new review system unworkable, risk self-contradictory decision-making by VA, and defeat Congressional intent to streamline the review process and reduce processing times.

A simple hypothetical serves to illustrate VA's intent. Suppose a claimant seeks disability compensation for a knee disability, and for a mental disorder. Once the claimant receives an initial decision on both, it is permissible for the claimant to elect to place the knee issue and the mental disorder issue in separate lanes under the new appeals system. The claimant may not, however, challenge the effective date assigned for the knee in one lane, and simultaneously challenge the assigned degree of disability for the knee in another lane.

In addition, VA proposes to include a new paragraph, § 3.151(d), providing that the evidentiary record for a claim closes upon issuance of notice of a decision on the claim. This provision is similar to proposed § 3.103(c).

§ 3.155 How To File a Claim

at the evidentiary record for a claim closes upon issuance of notice of a decision on the claim. This provision is similar to proposed § 3.103(c).

§ 3.155 How To File a Claim

VA proposes to amend § 3.155, regarding the procedures for filing a claim, to make those procedures applicable to supplemental claims under Public Law 115-55, except for the “intent to file” provisions found in § 3.155(b). For example, this amendment would apply existing procedures in § 3.155(c) regarding the filing of incomplete claim forms to supplemental claims. Accordingly, incomplete supplemental claim forms would be considered filed on the date of receipt if a complete supplemental claim is submitted within one year of the filing date of the incomplete claim.

However, the “intent to file” provisions in § 3.155(b), would not be applied to supplemental claims. The new statutory framework provides that a claimant can maintain the effective date of a potential benefits award by submitting a request for review under any of the three new lanes within one year of the date of the decision denying benefits. Consistent with this requirement, the intent to file provisions of § 3.155(b) would not apply to supplemental claims as this provision would allow for the submission of a supplemental claim beyond the one-year period provided by statute for protection of effective dates.

§ 3.156 Receipt of New Evidence

VA proposes to amend § 3.156 to include reference to supplemental claims based on new and relevant evidence as provided in Public Law 115-55 and to clarify when a supplemental claim may be filed. For supplemental claims received after the effective date, VA proposes new § 3.156(d) to replace the “new and material” evidence element, which is currently required under § 3.156(a) for requests for VA to reopen a finally adjudicated claim, with the more liberal “new and relevant” evidence standard in section 2(i) of Public Law 115-55. As noted in the House of Representatives Committee Report (H

For supplemental claims received after the effective date, VA proposes new § 3.156(d) to replace the “new and material” evidence element, which is currently required under § 3.156(a) for requests for VA to reopen a finally adjudicated claim, with the more liberal “new and relevant” evidence standard in section 2(i) of Public Law 115-55. As noted in the House of Representatives Committee Report (H. Rept.115-135, May 19, 2017, page 3), Congress's intent “behind the change is to lower the current burden” to have a claim readjudicated based on new evidence. Public Law 115-55 defines “relevant evidence” under 38 U.S.C. 101(35) as “evidence that tends to prove or disprove a matter in issue.” This new standard reduces a claimant's threshold in identifying or submitting evidence as part of a supplemental claim. Proposed § 3.156(d), regarding supplemental claims, includes a reference to new § 3.2501 which provides further details regarding the filing and adjudication of supplemental claims and the “new and relevant” evidence standard.

VA proposes to maintain the “new and material” evidence standard, found in 38 U.S.C. 5108 prior to the enactment of Public Law 115-55, in subsection (a) as the standard for requests to reopen finally adjudicated legacy claims where the request to reopen was decided prior to the applicability date of the new law. Claims to reopen that were filed, but not initially adjudicated, prior to the effective date will be adjudicated under the more favorable “new and relevant” standard applicable to supplemental claims. In addition, a supplemental claim subject to the more favorable standard may be filed after the effective date of the modernized review system, even with respect to legacy claims finally adjudicated prior to the effective date of the new system.

after the effective date of the modernized review system, even with respect to legacy claims finally adjudicated prior to the effective date of the new system.

Under the new framework, the agency of original jurisdiction will take action on new evidence that is received with an application for a supplemental claim, or received or obtained prior to issuance of a decision on the supplemental claim. As indicated in the explanation of proposed § 3.103, the record closes upon issuance of a notice of decision on the claim, subject to reopening upon certain later events. Therefore, VA proposes to limit the applicability of the current rule under paragraph (b), allowing for the submission of new and material evidence during the appeal period, to pending legacy claims that are not subject to the modernized review system.

§ 3.159 Department of Veterans Affairs Assistance in Developing Claims

38 U.S.C. 5103(a) requires VA to provide notice to a claimant of the information or evidence necessary to substantiate the individual's claim for benefits. Public Law 115-55 revised section 5103 to state that this notice requirement applies to initial and supplemental claims; however, VA is not required under the statute to provide that notice with respect to a supplemental claim filed within one year of an agency of original jurisdiction or Board decision on an issue. VA proposes to amend § 3.159 to include this exception.

VA also proposes to require VA to assist a claimant who reasonably identifies existing records in connection with a supplemental claim, as required under 38 U.S.C. 5108(b). VA proposes to further amend § 3.159 to clarify that VA's duty to assist in the gathering of evidence begins upon receipt of a substantially complete application for an initial or supplemental claim and ends once VA issues a decision on the claim

require VA to assist a claimant who reasonably identifies existing records in connection with a supplemental claim, as required under 38 U.S.C. 5108(b). VA proposes to further amend § 3.159 to clarify that VA's duty to assist in the gathering of evidence begins upon receipt of a substantially complete application for an initial or supplemental claim and ends once VA issues a decision on the claim. The definition of a substantially complete application in 3.159 has been amended to add the requirement that a supplemental claim application include or identify potentially new evidence and that a higher-level review request identify the date of the decision for which review is sought. VA's duty to assist is reinstated when a substantially complete initial claim or supplemental claim is filed or when a claim is returned to correct a “duty to assist” error in a prior decision as required by

§ 3.160 Status of Claims

Public Law 115-55 deleted the reference in 38 U.S.C 5103(a) to a claim for reopening or a claim for increase and replaced it with reference to a “supplemental claim.” Based on this change in terminology, VA proposes to update several sections in part 3 to replace the term “reopened claim” with “supplemental claim.” Claimants may request review of VA's decision by submitting a supplemental claim after a decision by the VBA, the Board, or the Court of Appeals for Veterans Claims. VA proposes to update paragraph (e) to reflect the requirement that as of the applicability date of the new law, VA will no longer accept requests to “reopen” claims and a claimant must file a supplemental claim under § 3.2501 to seek review of a finally adjudicated claim for a previously disallowed benefit.

VA proposes to clarify the definition of “finally adjudicated claim” for decision notices issued on or after the effective date, to be consistent with 38 U.S.C. 5104C, added by Public Law 115-55

w law, VA will no longer accept requests to “reopen” claims and a claimant must file a supplemental claim under § 3.2501 to seek review of a finally adjudicated claim for a previously disallowed benefit.

VA proposes to clarify the definition of “finally adjudicated claim” for decision notices issued on or after the effective date, to be consistent with 38 U.S.C. 5104C, added by Public Law 115-55. With the new claims and appeals system, a claim is considered finally adjudicated at the expiration of the period to file a review option following notice of a decision by the agency of original jurisdiction, the Board, or the Court of Appeals for Veterans Claims. If an appeal is timely filed from a decision of the Court of Appeals for Veterans Claims, a claim is finally adjudicated upon its disposition on judicial review. During the time period for seeking review, a claimant may elect one of the three new review options depending on the type of decision issued as outlined in 38 U.S.C. 5104C. Once the period to seek review expires, an issue is considered finally adjudicated and a claimant loses the effective date protections associated with continuous pursuit of an issue. At that point, the claimant may seek review of the decision by filing a supplemental claim or a request to revise the final decision based on clear and unmistakable error under § 3.105(a)(1).

VA proposes to amend the definition of complete claim to add a requirement applicable to supplemental claims, in part to implement the duty to assist requirements under 38 U.S.C. 5108(b). In order for a supplemental claim to be considered complete and filed, it must identify or include potentially new evidence. Identification of potentially new evidence would trigger VA's duty to assist under §§ 3.2501 and 3.159(a)(3). Without that baseline level of information, the complete claim standard will not have been met for purposes of claim initiation of a supplemental claim

S.C. 5108(b). In order for a supplemental claim to be considered complete and filed, it must identify or include potentially new evidence. Identification of potentially new evidence would trigger VA's duty to assist under §§ 3.2501 and 3.159(a)(3). Without that baseline level of information, the complete claim standard will not have been met for purposes of claim initiation of a supplemental claim. VA believes this baseline level of substantive specificity is necessary in order to minimize the possibility that claimants can effectively keep a claim stream alive indefinitely by repeatedly asserting that they will submit or identify new and relevant evidence at some future date, never doing so, and then repeating the process once VA issues a decision. However, we emphasize that the claim would be considered “complete” for claim initiation purposes, and VA's duty to assist accordingly triggered, when the claimant identifies evidence within the scope of VA's duty to assist to obtain. It would not be required that VA actually obtain the evidence, or make a finding that new and relevant in fact has been secured, prior to recognizing that a supplemental claim has in fact been filed.

§ 3.161 Expedited Claims Adjudication Initiative—Pilot Program

VA proposes to remove and reserve § 3.161, which addresses the Expedited Claims Adjudication (ECA) Initiative Pilot Program as this program is no longer in use and will not continue based on changes to the claims and appeals processes under Public Law 115-55. VA launched the ECA Initiative Program on February 2, 2009. The two-year pilot program was designed to accelerate claims and appeals processing. Participation in the ECA Initiative was strictly voluntary and limited to claimants who resided within the jurisdiction of the Nashville, Lincoln, Seattle, or Philadelphia Regional Offices (ROs). VA concluded the ECA pilot program in 2013.

§ 3.328 Independent Medical Opinions

Public Law 115-55 repealed 38 U.S.C

he two-year pilot program was designed to accelerate claims and appeals processing. Participation in the ECA Initiative was strictly voluntary and limited to claimants who resided within the jurisdiction of the Nashville, Lincoln, Seattle, or Philadelphia Regional Offices (ROs). VA concluded the ECA pilot program in 2013.

§ 3.328 Independent Medical Opinions

Public Law 115-55 repealed 38 U.S.C. 7109, which authorized the Board to obtain independent medical opinions (IMOs). This repeal removed the ability for the Board to request IMOs. Under 38 U.S.C. 5103A(f)(2) and 5109(d), as added by Public Law 115-55, the Board will, when deemed necessary, direct the agency of original jurisdiction to obtain an IMO. VA proposes to amend § 3.328 to include a requirement that VBA process IMO instructions received from the Board.

§ 3.400 General

VA proposes to amend § 3.400 to incorporate the new rule that a claimant may protect their initial filing date for effective date purposes if they continuously pursue a claim as outlined in 38 U.S.C. 5110(a), as amended by Public Law 115-55. VA will consider the date of receipt of the initial claim when determining the effective date for any benefits that VA may award under a continuously pursued claim. VA provides a reference to § 3.2500 where this is further defined.

VA proposes to limit the applicability of the rules regarding new and material evidence and reopened claims as VA will no longer accept or process claims to reopen claims received after the effective date of the new law.

§ 3.2400 Applicability of Modernized Review System

Proposed § 3.2400 defines which claims are processed under the new review system and which clams are processed under the legacy appeals system

it the applicability of the rules regarding new and material evidence and reopened claims as VA will no longer accept or process claims to reopen claims received after the effective date of the new law.

§ 3.2400 Applicability of Modernized Review System

Proposed § 3.2400 defines which claims are processed under the new review system and which clams are processed under the legacy appeals system. Public Law 115-55, section 2(x), provides generally that the new review system will apply to all claims for which a notice of decision is provided by the agency of original jurisdiction on or after the later of (a) 540 days from the date of enactment, which falls on February 14, 2019, or (b) 30 days after the date on which the Secretary certifies to Congress that VA is ready to carry out the new appeals system. Proposed § 19.2(a) refers to this date as the “effective date” of the new review system. Proposed § 3.2400(a)(1) implements the statutory definition and clarifies that the new review system applies when an “initial” decision is provided after the effective date. The term “initial decision” in this context refers to the initial decision on each claim for entitlement to a particular benefit, not the first decision that was ever issued by VA for a claimant.

Proposed § 3.2400 also clarifies that the new review system will generally apply to initial decisions provided on or after the effective date denying requests to revise a decision by the agency of original jurisdiction based on clear and unmistakable error (CUE). Such requests are not “claims” subject to Public Law 115-55, because the requester is not pursuing a claim for benefits pursuant to part II or III of Title 38 of the U.S. Code. Livesay v. Principi, 15 Vet. App. 165, 178-179 (2001). Nevertheless, VA will, as a matter of discretion, allow the requestor to elect review of such decisions in the higher-level review lane in addition to the option to appeal to the Board

e not “claims” subject to Public Law 115-55, because the requester is not pursuing a claim for benefits pursuant to part II or III of Title 38 of the U.S. Code. Livesay v. Principi, 15 Vet. App. 165, 178-179 (2001). Nevertheless, VA will, as a matter of discretion, allow the requestor to elect review of such decisions in the higher-level review lane in addition to the option to appeal to the Board. A supplemental claim may not be filed with respect to a CUE request since revision of a decision for CUE cannot be based on new evidence.

The proposed regulation also recognizes, in subsection (c), that some claimants who received a notice of decision prior to the effective date, defined as legacy claimants, may have

Proposed subsection (c) provides, in accordance with section 2(x)(5) of Public Law 115-55, that, after the effective date, legacy claimants may opt-in to the new review system after VA issues a Statement of the Case or Supplemental Statement of the Case. Claimants may do so by filing for one of the review options under the new system on a form prescribed by VA within the time allowed to file a substantive appeal to the Board under the legacy appeals system. A claimant may not elect to pursue review under both the legacy and modernized review systems with respect to a particular claim.

§ 3.2500 Review of Decisions

In the legacy appeals process, claimants who are dissatisfied with the initial decision on their claim are given only one avenue to seek review of that decision. Public Law 115-55 created a new claims and appeals process with several different review options for pursuing VA benefits. Congress added 38 U.S.C. 5104C to provide claimants with streamlined choices within the agency of original jurisdiction and through an appeal to the Board. VA proposes to add § 3.2500 to part 3, subpart D, to implement the new review options and set forth the rules that apply to those options under new 38 U.S.C. 5104C

appeals process with several different review options for pursuing VA benefits. Congress added 38 U.S.C. 5104C to provide claimants with streamlined choices within the agency of original jurisdiction and through an appeal to the Board. VA proposes to add § 3.2500 to part 3, subpart D, to implement the new review options and set forth the rules that apply to those options under new 38 U.S.C. 5104C. In line with the statutory requirements, VA proposes to allow a claimant to file for one of the three review options upon receipt of a decision by the agency of original jurisdiction on an initial claim. Under proposed § 3.2500(b), a claimant would be able to elect a different review option for each different issue adjudicated in the decision. The term “issue” is defined in § 3.151(c) as a distinct determination of entitlement to a benefit, such as a determination of entitlement to service-connected disability compensation for a particular disability.

Proposed § 3.2500(b) provides that a claimant may not elect to have the same issue reviewed concurrently under different review options, consistent with new 38 U.S.C. 5104C(a)(2)(A). Proposed § 3.2500(d) implements new 38 U.S.C. 5104C(a)(2), providing that claimants may switch between the different review options. A claimant or the claimant's duly appointed representative may, for example, withdraw a request for higher-level review or a supplemental claim at any time prior to VA issuing notice of decision. If the withdrawal takes place within the one year period following notice of the decision being reviewed, a claimant may timely elect another review option to continuously pursue the claim and preserve potential entitlement to benefits effective as of the date of the initial claim.

Under new 38 U.S.C

higher-level review or a supplemental claim at any time prior to VA issuing notice of decision. If the withdrawal takes place within the one year period following notice of the decision being reviewed, a claimant may timely elect another review option to continuously pursue the claim and preserve potential entitlement to benefits effective as of the date of the initial claim.

Under new 38 U.S.C. 5104C, after receiving notice of a decision on an issue, claimants generally have up to one year to submit new and relevant evidence with a supplemental claim, request a higher-level review, or file an appeal to the Board to preserve the effective date associated with their initial claim. If a claimant remains dissatisfied with the decision on review, depending on the type of review requested, he or she would still have the option to file another review request. The review options available to a claimant after a decision on each type of review are set forth in § 3.2500(c). Paragraph (g) contains effective date protections for continuously pursued claims and the effective date rule for supplemental claims filed more than one year after notice of a decision ( i.e., where the underlying claim is finally adjudicated). For example, a claimant who receives an unfavorable decision on a higher-level review request may submit a supplemental claim with new and relevant evidence or appeal to the Board within one year of the decision notice date to protect the effective date. If, following a further denial, the claimant elects to file a supplemental claim with new and relevant evidence within one year of the decision notice date and VA grants the benefit sought, VA will consider this to be a continuously pursued claim and continue to base the effective date of an award on the filing date of the initial claim.

date and VA grants the benefit sought, VA will consider this to be a continuously pursued claim and continue to base the effective date of an award on the filing date of the initial claim.

VA proposes to include a paragraph in § 3.2500 that limits the review option available to parties to a simultaneously contested claim (contested claim) to the filing of a Notice of Disagreement with the Board. A contested claim is defined in VA regulations as a situation in which the allowance of one claim results in the disallowance of another claim involving the same benefit or the payment of a lesser benefit to another claimant. 38 CFR 20.3(p). For example, two people may claim entitlement to the same benefit, such as in the situation where two people claim entitlement to a death benefit as the surviving spouse.

In this situation, Congress has provided for different adjudication rules aimed at speeding resolution of the dispute. Prior to Public Law 115-55, the statutory time frame to appeal a decision by the agency of original jurisdiction in such cases was 60 days rather than the normal one year period. 38 U.S.C. 7105A. This required review to be initiated for all contested claims within 60 days and clearly reflected an intent that contested claims be resolved more quickly than ordinary claims.

be resolved more quickly than ordinary claims.

In Public Law 115-55, Congress maintained the 60 day time period for filing a Notice of Disagreement to appeal a decision of the agency of original jurisdiction, but did not address how contested claims should be handled with respect to the newly available review lanes at the agency of original jurisdiction, for which the filing deadline is one year. This is problematic for the following reasons: (1) While the new system provides claimants with the right to select from three different review lanes, it is literally impossible to provide this right to each claimant in a contested claim, because the claimants' choice of review lanes may conflict (we note that both claimants may disagree with a particular determination in a contested claim, such as the amount of an apportionment under § 3.450); (2) while the new system protects favorable findings from being overturned in the absence of clear and convincing evidence to the contrary, a finding may be favorable to one claimant but unfavorable to the other, thus making it literally impossible to afford each claimant this right; (3) the review period for choosing the Board review lane (through filing a Notice of Disagreement) would be 60 days for a contested claim, but the review period for choosing higher-lever review or filing a supplemental claim would be one year, thereby significantly undermining the impact of the 60 day time period for filing a Notice of Disagreement on achieving a faster resolution of the claim. As a result, it appears that Congress either did not envision that contested claims would be See, e.g., Ramsey v. Nicholson, 20 Vet.App

laim, but the review period for choosing higher-lever review or filing a supplemental claim would be one year, thereby significantly undermining the impact of the 60 day time period for filing a Notice of Disagreement on achieving a faster resolution of the claim. As a result, it appears that Congress either did not envision that contested claims would be See, e.g., Ramsey v. Nicholson, 20 Vet.App. 16, 30 (2006) (refusing to literally apply the statutory requirement that appeals at the Board be considered and decided in docket order because, despite the arguably plain meaning of the statute, literal application would produce an absurd result, or at least a result at odds with the intention of the drafters, “when considering the statute's overall structure and concepts relating to effective review of appeals”).

VA proposes to fill the gap left by the statute by limiting the review option available to a contested claimant to filing a Notice of Disagreement with the Board within 60 days of issuance of the decision of the agency of original jurisdiction. Simultaneously contested claims thus would be excepted from the general one year review period in § 3.2500. VA believes that this is a reasonable way to effectuate congressional intent that the review process for a contested claim be designed to achieve faster resolution of the claim. It also reduces the opportunity for one claimant to prevent the payment of benefits to another claimant by delaying action on filing for review of a decision favorable to the other claimant or by filing successive supplemental claims based on marginally relevant evidence. If either claimant discovers new evidence, the claimant may, under the new system, file such evidence in connection with an appeal to the Board

the opportunity for one claimant to prevent the payment of benefits to another claimant by delaying action on filing for review of a decision favorable to the other claimant or by filing successive supplemental claims based on marginally relevant evidence. If either claimant discovers new evidence, the claimant may, under the new system, file such evidence in connection with an appeal to the Board. In addition, under the new system, initial decisions by the agency of original jurisdiction are required to contain more detailed information regarding the basis of the decision, reducing the need for further decisions by the agency of original jurisdiction to provide more information.

§ 3.2501 Supplemental Claims

VA proposes to add a new section to part 3, subpart D, to explain the rules that govern the supplemental claim review option required by 38 U.S.C. 5108 as amended by Public Law 115-55. Claimants may request review of VA's decision by submitting a supplemental claim after a decision by the VBA, the Board, or the Court of Appeals for Veterans Claims. Public Law 115-55 amended 38 US.C. 5108(a) to prescribe that VA will re-adjudicate a claim when new and relevant evidence is presented or secured with respect to a supplemental claim. VA proposes to include in § 3.2501 the requirement that new and relevant evidence must accompany a supplemental claim or be submitted or secured while a supplemental claim is pending for VA to take action on the evidence and readjudicate the claim.

VA proposes to include a requirement that a claimant file a supplemental claim on a form prescribed by the Secretary and that the duty to assist in gathering new and relevant evidence will be triggered upon the filing of a substantially complete application. As provided in proposed amendments to § 3.159(a)(3) and § 3.160(a), a substantially complete or complete supplemental claim application must identify or include potentially new evidence

claimant file a supplemental claim on a form prescribed by the Secretary and that the duty to assist in gathering new and relevant evidence will be triggered upon the filing of a substantially complete application. As provided in proposed amendments to § 3.159(a)(3) and § 3.160(a), a substantially complete or complete supplemental claim application must identify or include potentially new evidence. An incomplete claim will be considered filed on the date of receipt if the complete application is filed within a year, consistent with § 3.155. The new statutory framework provides one year for submission of a request for review under any of the three new lanes. Consistent with this requirement, the intent to file provisions of § 3.155(b) would not apply to supplemental claims. This new section will also address the evidentiary record for supplemental claims, consistent with proposed § 3.151(d).

§ 3.2502 Returns by Higher-Level Adjudicator or Remand by the Board of Veterans' Appeals

VA proposes to add § 3.2502 to part 3, subpart D, to implement the requirement in new 38 U.S.C. 5109B for expedited processing of claims returned from a higher-level adjudicator and remands from the Board. Upon receipt of a returned claim or remand by the Board, the agency of original jurisdiction will take immediate action to expedite readjudication of the claim in accordance with new 38 U.S.C. 5109B. The agency of original jurisdiction will retain jurisdiction of the claim. In readjudicating the claim, the adjudication activity will correct all identified duty to assist errors, complete a new decision and issue notice to the claimant and or his or her legal representative in accordance with § 3.103(f). For all issues readjudicated, the effective date of any evaluation and award of pension, compensation, or dependency and indemnity compensation will be determined in accordance with the date of receipt of the initial claim as prescribed under proposed § 3.2500(g)

t errors, complete a new decision and issue notice to the claimant and or his or her legal representative in accordance with § 3.103(f). For all issues readjudicated, the effective date of any evaluation and award of pension, compensation, or dependency and indemnity compensation will be determined in accordance with the date of receipt of the initial claim as prescribed under proposed § 3.2500(g).

§ 3.2600 Legacy Review of Benefit Claims Decisions

Current § 3.2600 governs certain aspects of review under the legacy system, for claims in which a Notice of Disagreement is filed on or after June 1, 2001. VA proposes to amend § 3.2600 to make clear that this section only applies to legacy claims as defined in § 3.2400 and not to claims that are processed under the new review system. VA plans to implement the new claims and appeals system on February 14, 2019. Claimants who receive decisions prior to the effective date of the new system will have the option to file an appeal under the legacy process, in which case § 3.2600 will apply. In general, the agency of original jurisdiction will stop accepting Notices of Disagreement for legacy claims one year after the effective date of the final rule implementing the new claims and appeals system, subject to extension of the filing period for good cause in individual cases.

§ 3.2601 Higher-Level Review

VA proposes to add a new section to part 3, subpart D, to implement the rules that govern the higher-level review option required by 38 U.S.C. 5104B. This new section explains the requirements for electing a higher-level review, describes the type of agency of original jurisdiction employees who will conduct the review, and addresses the review process.

higher-level review, describes the type of agency of original jurisdiction employees who will conduct the review, and addresses the review process.

Under 38 U.S.C. 5104B, a claimant in the modernized review system may request a higher-level review of a decision on a claim by the agency of original jurisdiction during the one year period to seek review following issuance of the notice of decision. The higher-level review option gives claimants a second look at their claims, but that review is based solely on the same evidence that was before the initial adjudicator. The higher-level review is conducted by a different experienced VA employee with the ability to change the initial decision based on difference of opinion authority, subject to the rule that favorable findings are binding absent clear and convincing evidence to the contrary. The higher-level review provides the opportunity for resolution of the issue(s) in dispute at the agency of original jurisdiction without having to file an appeal to the Board, or having to submit a supplemental claim with new and relevant evidence.

The higher-level review consists of a closed evidentiary record and does not allow for the submission of new evidence or a hearing. While the closed evidentiary record does not allow for submission of new evidence, VA proposes to provide claimants and/or their representatives with an opportunity to speak with the higher-level adjudicator and point out any specific errors in the case as part of the higher-level review. VA has utilized an informal conference as part of the

el adjudicator and point out any specific errors in the case as part of the higher-level review. VA has utilized an informal conference as part of the

VA proposes to include a paragraph that explains the requirement for expedited processing of all identified duty to assist errors. VA has a statutory duty to assist claimants in gathering evidence in support of a claim for benefits. Under 38 U.S.C. 5103A(f), if the higher-level adjudicator discovers a duty to assist error, the claim returns to the adjudication activity for correction unless the higher-level adjudicator determines that it would be appropriate for VA to grant the maximum benefit for the claim. In accordance with 38 U.S.C. 5109B, VA proposes to include a rule requiring expedited processing to correct these types of errors and to define “maximum benefit” for disability compensation as the maximum scheduler evaluation for the issue, and for other types of benefits, the granting of the benefit sought.

Because the filing date of a request for higher-level review is relevant to maintaining the effective date of any award, VA proposes to include provisions for determining the filing date that are similar to the provisions in § 3.155 that apply to applications for benefits.

Part 8—National Service Life Insurance

To comply with Public Law 115-55, VA proposes to amend 38 CFR 8.30 to allow applicants for insurance coverage and/or claimants for insurance proceeds (both hereafter referred to as claimants) who disagree with (1) denials of applications for insurance, total disability income provision, or reinstatement; (2) disallowances of claims for insurance benefits; and/or (3) decisions holding fraud or imposing forfeiture to receive either a higher-level review, supplemental claim review, or Board review.

VA has consolidated all life insurance activity at a single office located in Philadelphia, PA

isagree with (1) denials of applications for insurance, total disability income provision, or reinstatement; (2) disallowances of claims for insurance benefits; and/or (3) decisions holding fraud or imposing forfeiture to receive either a higher-level review, supplemental claim review, or Board review.

VA has consolidated all life insurance activity at a single office located in Philadelphia, PA. This office has original jurisdiction over all life insurance applications and claims for proceeds received in conjunction with life insurance programs administered by VA. Because insurance expertise and processing is consolidated at the Philadelphia office, higher level reviews and supplemental claims will be processed by employees at the Philadelphia office. Selection of an employee to conduct a higher-level review is at VA's discretion. The VA Insurance Service will assign higher-level reviews to employees who are experienced decision-makers who did not participate in the prior decision. The VA Insurance activity would make reasonable efforts to honor requests for informal conferences as part of a higher-level review, consistent with proposed 3.2601(h). As noted in proposed § 3.2601(h), claimants are responsible for any costs they incur in conjunction with an informal conference. This proposed rule would not limit the option of pursuing actions under 38 U.S.C. 1984.

Part 14—Legal Services, General Counsel, and Miscellaneous Claims

Under 38 U.S.C. chapter 59, the Secretary of Veterans Affairs has authority to recognize VSOs and their representatives as well as attorneys and agents for the preparation, presentation, and prosecution of benefit claims, prescribe the rules of conduct applicable while providing claims assistance, and regulate fees charged by accredited attorneys and agents

eral Counsel, and Miscellaneous Claims

VA proposes to make several revisions to the regulations contained in part 14, Title 38 of the Code of Federal Regulations, regarding: Accreditation of attorneys, agents, and VSO representatives; representation of claimants before VA; and fees charged by attorneys and agents for representation. The proposed revisions will address the recent changes in law enacted by Public Law 115-55, address a few discrepancies relating to the appellate process in the current regulations, and further clarify the rules.

While Public Law 115-55 sets out “to reform the rights and processes relating to appeals of decisions regarding claims for benefits under the laws administered by the Secretary of Veterans Affairs,” the accreditation and fee regulations contained in part 14 are focused exclusively on accreditation of attorneys, agents, and VSO representatives; representation of claimants before VA; and fees charged by attorneys and agents for representation. Although VA recognizes that certain changes to part 14 are needed to reflect the new law, which changes the starting point at which fees for representation may be charged and changes in the appellate structure for deciding benefit claims, VA does not believe that the provisions of the appeals reform law prescribing processes for “claims for benefits” directly apply to adjudications of VA accreditation and attorney/agent fee matters. See 38 U.S.C. 5904; 38 CFR 14.626-14.637

the new law, which changes the starting point at which fees for representation may be charged and changes in the appellate structure for deciding benefit claims, VA does not believe that the provisions of the appeals reform law prescribing processes for “claims for benefits” directly apply to adjudications of VA accreditation and attorney/agent fee matters. See 38 U.S.C. 5904; 38 CFR 14.626-14.637.

Section 14.629—Requirements for Accreditation of Service Organization Representatives; Agents; and Attorneys

Current § 14.629 contains an introductory paragraph describing the process within the Office of General Counsel for evaluating whether an applicant for accreditation meets the qualifications for becoming accredited by VA and for appealing decisions denying accreditation. VA proposes to move that paragraph from the beginning of 14.629 to a new paragraph, proposed paragraph (d), to improve the readability of the section.

In addition, VA proposes to modify the substance of the current introductory paragraph when relocating it in paragraph (d) to state that a denial of accreditation by the Chief Counsel is a final adjudicative determination of an agency of original jurisdiction that may only be appealed to the Board. The provision currently states that decisions denying accreditation may be appealed to the General Counsel and denials by the General Counsel are ultimately appealable to the district courts under the Administrative Procedures Act (APA). This provision reflects VA's prior position that a decision denying accreditation is not a “decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans,” 38 U.S.C. 511(a), and, therefore, is not appealable under the system enacted by the Veterans Judicial Review Act (VJRA). See 38 U.S.C. 7104(a)

res Act (APA). This provision reflects VA's prior position that a decision denying accreditation is not a “decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans,” 38 U.S.C. 511(a), and, therefore, is not appealable under the system enacted by the Veterans Judicial Review Act (VJRA). See 38 U.S.C. 7104(a). While recognizing that the United States Court of Appeals for the Federal Circuit (Federal Circuit) had

However, upon further reflection in light of decisions by the Federal Circuit and other Federal courts broadly construing the VJRA's exclusive jurisdictional scheme, VA now concludes that decisions denying accreditation also fall within the scope of that exclusive review scheme. This conclusion ensures consistency with respect to the applicable law and other decisions relating to accreditation, and thus comports with a central purpose of the VJRA's exclusive review scheme, i.e., to promote a uniform body of jurisprudence on matters related to VA benefits. Therefore, proposed § 14.629(d)(2)(ii) would shift the authority to issue the decision on appeal from the General Counsel to the Board.

The basis for permitting an appeal to the Board is grounded in 38 U.S.C. 511, which applies to decisions “under a law that affects the provision of benefits by [VA] to veterans or the dependents or survivors of veterans.” 38 U.S.C. 511(a). The Federal Circuit has construed section 511 to extend beyond matters relating to claims for benefits, including to accreditation-related decisions. Cox v. West, 149 F.3d 1360, 1365 (Fed. Cir. 1998) (That “the decision of the regional office did not affect a veteran's benefits is not the point. The relevant issue under section 511(a) is whether the decision necessarily interpreted a law that affects veterans' benefits.”); see also Bates v. Nicholson, 398 F.3d 1355, 1359-61 (Fed. Cir. 2005)

enefits, including to accreditation-related decisions. Cox v. West, 149 F.3d 1360, 1365 (Fed. Cir. 1998) (That “the decision of the regional office did not affect a veteran's benefits is not the point. The relevant issue under section 511(a) is whether the decision necessarily interpreted a law that affects veterans' benefits.”); see also Bates v. Nicholson, 398 F.3d 1355, 1359-61 (Fed. Cir. 2005). But the Federal Circuit has also held that simply because a decision is appealable to the Board does not mean the decision is subject to all the same statutory procedures applicable to claims for veterans benefits. See DAV v. Gober, 234 F.3d 682, 694-95 (Fed. Cir. 2000) (demonstrating that certain appealable matters are not governed by all of the same provisions that apply to regular claims for veterans benefits).

Notably, in Public Law 115-55, Congress specifically identified “decisions regarding claims for benefits, ” and did not include all decisions that are appealable to the Board, as being subject to the new appellate system. The provisions of Public Law 115-55 pertaining to the “supplemental claim” and “higher-level review” options specify that they apply to “claims for benefits” and to “claimants,” which is defined in 38 U.S.C. 5100 to refer to a person applying for a “benefit” under laws administered by VA. Id., § 2(a) (defining “supplemental claim” as “a claim for benefits . . .”), § 2(g) and (h) (authorizing a “claimant” to elect higher-level review or submit a supplemental claim following a decision). VA does not view decisions to grant, deny, or otherwise affect accreditation status to be decisions “ regarding claims for benefits ” within the meaning of Public Law 115-55. VA's interpretation of the statute is consistent with the Federal Circuit's interpretation that the statutory provision governing removal of accreditation is not itself a law affecting benefits. Bates, 398 F.3d at 1360 (“The argument that 38 U.S.C. 5904(b) is itself a `law that affects the provision of benefits' is unpersuasive.”)

ding claims for benefits ” within the meaning of Public Law 115-55. VA's interpretation of the statute is consistent with the Federal Circuit's interpretation that the statutory provision governing removal of accreditation is not itself a law affecting benefits. Bates, 398 F.3d at 1360 (“The argument that 38 U.S.C. 5904(b) is itself a `law that affects the provision of benefits' is unpersuasive.”). Accordingly, VA concludes that Public Law 115-55 does not require that the full range of modernized review procedures available for benefit decisions be extended to decisions regarding accreditation of representatives.

Moreover, revising the current adjudication process for accreditation matters simply to mirror the choice and flexibility required under Public Law 115-55 for benefits claims is unwarranted. Public Law 115-55 is designed to allow claimants for benefits to switch between the lanes of review, while still having an option to submit new evidence regarding their claims, all while preserving potential entitlement to benefits retroactive to the date of the benefits claim as long as the matter is pursued continuously. See Public Law 115-55, §§ 2(h)(1), (2)(l). In contrast, decisions on accreditation matters are effective on the date of the decision; therefore, the adjudication of these matters does not implicate the same issues as for claims for benefits regarding preservation of effective dates. Although flexibility and choice are key objectives of the new statutory framework with regard to claims for benefits, the paramount concern for matters regarding accreditation is ensuring that claimants for benefits have competent representation. Therefore, we propose that denials of accreditation will only be appealable to the Board

r claims for benefits regarding preservation of effective dates. Although flexibility and choice are key objectives of the new statutory framework with regard to claims for benefits, the paramount concern for matters regarding accreditation is ensuring that claimants for benefits have competent representation. Therefore, we propose that denials of accreditation will only be appealable to the Board.

Consistent with the proposal in new paragraph (d) to have the Chief Counsel make the final decision on an accreditation determination, VA proposes to transfer from the General Counsel level to the Chief Counsel level the authority under § 14.629(b)(5) to grant or reinstate accreditation for an individual who remains suspended in a jurisdiction on grounds solely derivative of suspension or disbarment in another jurisdiction to which he or she has been subsequently reinstated.

Section 14.631—Powers of Attorney; Disclosure of Claimant Information

In current § 14.631(c), the regulation refers to 38 CFR 20.608. However, VA proposes to change that to 38 CFR 20.6 to reflect the revisions being proposed by the Board in this rulemaking.

Section 14.632—Standards of Conduct for Persons Providing Representation Before the Department

In current § 14.632, the regulation lists standards of conduct by which accredited attorneys, agents, and representatives must abide in preparing, presenting, and prosecuting VA benefit claims. VA proposes to revise current 14.632(c)(6) to eliminate the specific reference to the Notice of Disagreement and to clarify that gifts from a VA claimant to a VA-accredited individual are not permitted in any situation when a fee could not be lawfully charged. VA proposes to change the word “representation” to “services,” in order to be clear that this provision applies to all aspects of claims preparation, presentation, and prosecution

6) to eliminate the specific reference to the Notice of Disagreement and to clarify that gifts from a VA claimant to a VA-accredited individual are not permitted in any situation when a fee could not be lawfully charged. VA proposes to change the word “representation” to “services,” in order to be clear that this provision applies to all aspects of claims preparation, presentation, and prosecution.

Section 14.633—Termination of Accreditation or Authority To Provide Representation Under § 14.630

VA proposes changes to current § 14.633(e)(2) to clarify that when the Chief Counsel closes the record with regard to a suspension or cancellation of accreditation, that this is the record before the Office of the General Counsel. The rationale for this change is to clarify procedures for closure of the record in suspending or cancelling an individual's accreditation to ensure that the regulation does not contradict changes under the modernized system. Under existing law, the record is closed prior to the General Counsel's decision and on appeal to the Board, no expansion of the record is permitted unless a Board hearing is requested. Under the modernized system, evidence may be submitted for the Board to consider in the first instance with or without a hearing request. VA proposes this change twice in § 14.633(e)(2) in order to maintain consistency.

VA also proposes new language in § 14.633(h)(1) and (2) to clarify the procedures for decisions issued before the effective date of the modernized review system and on or after that date. In addition, in proposed § 14.633(h)(1), VA proposes replacing the reference to 38 CFR 19.9 with 38 CFR 20.904, to reflect the redesignation in the Board's proposed regulations.

, in proposed § 14.633(h)(1), VA proposes replacing the reference to 38 CFR 19.9 with 38 CFR 20.904, to reflect the redesignation in the Board's proposed regulations.

VA further proposes moving the second sentence in 14.633(h) to a new subsection 14.633(j) and adding “suspension” to clarify that the General Counsel can in fact provide notice of both suspensions and cancellations of accreditation. The overall move is intended to provide clarity, as the paragraph in which this is currently located otherwise addresses appellate rights. The proposed addition fills in a gap in the existing regulations. In the preamble to the May 2007 proposed rule on Part 14, VA stated that the General Counsel could notify all agencies, courts, and bars to which the agent or attorney is admitted to practice of suspensions or cancellations, 72 FR 25930, 25933 (May 7, 2007), but, in the regulation text, VA only specified cancellation. Id. at 25940; see also 73 FR at 29875 (final rule text).

As discussed above with denials of accreditation, it is neither required nor prudent to provide all the same options and safeguards that apply to the new appellate system under Public Law 115-55 to decisions regarding the suspension or cancellation of accreditation.

Section 14.636—Payment of Fees for Representation by Agents and Attorneys in Proceedings Before Agencies of Original Jurisdiction and Before the Board of Veterans' Appeals

Currently, 38 U.S.C. 5904(c)(1) directs that agents and attorneys may be paid for services provided after a Notice of Disagreement is filed in a case. This is also reflected in current 38 CFR 14.636(c). VA proposes language in § 14.636(c)(1)(i) to implement the change in section 2(n) of Public Law 115-55 that fees may be charged by an accredited agent or attorney upon VA's issuance of notice of an initial decision on a claim

(1) directs that agents and attorneys may be paid for services provided after a Notice of Disagreement is filed in a case. This is also reflected in current 38 CFR 14.636(c). VA proposes language in § 14.636(c)(1)(i) to implement the change in section 2(n) of Public Law 115-55 that fees may be charged by an accredited agent or attorney upon VA's issuance of notice of an initial decision on a claim. In the same subsection of § 14.636, VA proposes additional language, based on the effective date provisions in section 2(l) of Public Law 115-55, to clarify the relationship between section 2(n) of Public Law 115-55 and the new adjudication procedures. Specifically, this clarifies whether a decision on a supplemental claim is considered a new initial decision, or whether it is part of the original adjudication string based on the effective date. The language VA proposes makes clear that a decision by an agency of original jurisdiction adjudicating a supplemental claim will be considered an initial decision on a claim unless the decision is made while the claimant continuously pursued the claim by choosing one of the three procedural options available under Public Law 115-55.

In addition, VA proposes to add § 14.636(c)(1)(ii), to clarify the effective dates emanating from Public Law 115-55 for attorney fee matters based on clear and unmistakable error. The language in proposed § 14.636(c)(1)(ii) mirrors the already existing regulatory text at current § 14.636(c)(1).

Next, proposed § 14.636(c)(2)(i) contains minor language edits to accommodate for the implementation of the Public Law 115-55. Note that, although not specified in the proposed modified subsection, a Notice of Disagreement which has been withdrawn to opt in to the appeals modernization program will still satisfy the Notice of Disagreement requirement under paragraph (c)(2)

urrent § 14.636(c)(1).

Proposed § 14.636(i)(3) contains language to clarify that when the Chief Counsel closes the record in proceedings to review fee agreements, this is the record before the Office of the General Counsel. VA proposes this minor change in both § 14.636(i)(3) and (k) in order to maintain consistency. VA proposes to remove the instruction for filing a Notice of Disagreement with the Office of the General Counsel because, although that is correct under the legacy system, under the modernized appeals system the Notice of Disagreement should be filed directly with the Board. The Office of General Counsel form with the appellate rights will specify where the Notice of Disagreement should be filed. In addition, proposed § 14.636(k) contains language similar to that in proposed § 14.633(h), for the reasons stated in those sections above, to clarify the procedures for decisions issued before the effective date of the modernized review system, and on or after that date, the date that Public Law 115-55 is scheduled to take effect. As required by Public Law 115-55, VA proposes to replace the term “reopened” with “readjudicated” in several places in the proposed § 14.636.

Finally, because fee matters are simultaneously contested matters they are processed under the appellate procedures applicable to simultaneously contested claims. See Mason v. Shinseki, 743 F.3d 1370, 1374 (2014) (holding that disputes regarding eligibility for attorney's fees withheld from past-due disability benefits are subject to the appeal deadlines for simultaneously contested claims)

636.

Moreover, it is clear that decisions on fee matters differ from decisions on claims for VA benefits because they ultimately concern whether the terms of the private contract should be altered for public policy reasons. See Scates v. Principi, 282 F.3d 1362, 1366-66 (finding that a contingency percentage agreed upon in a fee contract contains an “implicit . . . understanding” that the representative may not be entitled to the full percentage if the claimant terminates the representative's services during the case). Compare Public Law 115-55, 2(h)(1) (providing for three options for review), with 38 U.S.C. 5904(c)(3) (specifying that a fee reasonableness decision may be reviewed by the Board pursuant to section 7104 to determine whether it is excessive or unreasonable); and 38 U.S.C. 7263(d) (explaining that the Court of Appeals for Veterans Claim's decision with regard to the reasonableness of the fee is a final determination that may not be reviewed by any other court).

Section 14.637—Payment of the Expenses of Agents and Attorneys in Proceedings Before Agencies of Original Jurisdiction and Before the Board of Veterans' Appeals

ot be reviewed by any other court).

Section 14.637—Payment of the Expenses of Agents and Attorneys in Proceedings Before Agencies of Original Jurisdiction and Before the Board of Veterans' Appeals

Proposed § 14.637(d)(3) contains language to clarify that when the Chief Counsel closes the record in proceedings to review fee agreements, this is the record before the Office of the General Counsel. Also, in proposed § 14.637(f), language similar to that in proposed §§ 14.633(h) and 14.636(k) is proposed to comply with Public Law 115-55 and for the reasons stated with respect to those sections above. In addition, in § 14.637(d)(3), VA proposes to remove the instruction for filing a Notice of Disagreement with the Office of the General Counsel for the same reasons as stated in § 14.636(i)(3).

Part 19—Board of Veterans' Appeals: Appeals Regulations

VA proposes to restructure and revise 38 CFR part 19. As noted, Public Law 115-55 applies to all claims for which notice of decision was provided on or after the effective date and to certain claims where a notice of decision was provided prior to that date, but the appellant opted to subject the claim to the new system. While Public Law 115-55 is primarily aimed at creating a new claims and appeals adjudication system, VA must also provide timely and quality decisions on legacy appeals. A legacy appeal is any appeal where the agency of original jurisdiction provided notice of a decision prior to the effective date and the appellant has not opted to have review of his or her appeal completed in the new system. When the new system becomes effective, VA will have approximately 500,000 pending

r her appeal completed in the new system. When the new system becomes effective, VA will have approximately 500,000 pending

This proposed rule would make part 19 applicable only to legacy appeals; specifically, the processing of legacy appeals by the agency of original jurisdiction. Subparts F, G, and J of part 20 would apply only to the processing and adjudication of legacy appeals by the Board. Except as otherwise provided in specific sections, subparts A, B, H, K, L, M, N, and O of part 20 would apply to the processing and adjudication of both appeals in the new system and legacy appeals. Subparts C, D, E, and I of part 20 would apply only to the processing and adjudication of appeals in the new system.

VA proposes to revise the authority citations for individual sections in part 19 and for certain sections in part 20 applicable only to legacy appeals to identify the versions of statutes existing prior to the effective date of the modernized appeals system, as those statutes will continue to apply to legacy appeals.

Finally, VA proposes minor updates to addresses. This minor change is not substantive. Currently, provisions containing the Board's address for mail related to appeals direct that mail should be addressed to a particular office within the Board. In practice, all mail is processed in a central location at the Board and routed to the appropriate office internally. Therefore, VA proposes to strike all references to specific offices or personnel at the Board in references to the Board's address.

The following distribution table shows where each section of current part 19 is proposed to be moved.

Old section New section 19.1 20.100. 19.2 20.101. 19.3 20.106. 19.4 20.103. 19.5 20.105. 19.7 20.903; similar in 20.802. 19.8 20.905; similar in 20.804. 19.9 20.904; similar in 20.803. 19.11 20.1004. 19.12 20.107. 19.13 20.108. 19.14 20.109. 19.27 Removed. 19.33 Removed. 19.50 Removed. 19.51 Removed. 19.52 Removed. 19.53 Removed. 19.75 20.603. 19.76 20.602

urrent part 19 is proposed to be moved.

VA proposes to amend subpart A—Operation of the Board of Veterans' Appeals, by moving all sections into part 20. Generally applicable provisions are proposed to be moved into subpart B of part 20, while provisions applicable to adjudication of legacy appeals are proposed to be moved to subpart J of part 20.

VA proposes to add new provisions to subpart A of part 19 that explain the applicability of part 19.

§ 19.1 Provisions Applicable to Legacy Appeals

New § 19.1 is proposed to help claimants understand which appeals system applies to their claim, and to provide specific instructions for legacy claimants to locate the regulations applicable to their appeal.

§ 19.2 Appellant's Election for Review of a Legacy Appeal in the Modernized System

New § 19.2 is proposed to explain options that may be available for legacy claimants to have their claim or appeal considered in the new system. This includes electing the modernized review system pursuant to 38 CFR 3.2400(c)(1), following issuance of a Statement of the Case or Supplemental Statement of the Case on or after the effective date, or pursuant to any test program implemented by the Board.

Subpart B—Legacy Appeals Processing by Agency of Original Jurisdiction

Case on or after the effective date, or pursuant to any test program implemented by the Board.

Subpart B—Legacy Appeals Processing by Agency of Original Jurisdiction

VA proposes to restructure subpart B of part 19 in order to consolidate procedures relating to legacy appeal processing by the agency of original jurisdiction. Subpart C of part 20 deals with commencement and perfection of appeals. As these procedures require action by the agency of original jurisdiction rather than the Board, and are only applicable to appeals in the legacy system, VA proposes to move these provisions to subpart B of part 19.

§ 19.20 What Constitutes an Appeal

VA proposes to redesignate § 20.200 as § 19.20, and update citations.

§ 19.21 Notice of Disagreement

VA proposes to redesignate § 20.201 as § 19.21, and update citations.

§ 19.22 Substantive Appeal

VA proposes to redesignate § 20.202 as § 19.22, and update citations.

§ 19.23 Applicability of Provisions Concerning Notice of Disagreement

VA proposes to update the citations in § 19.23.

§ 19.24 Action by Agency of Original Jurisdiction on Notice of Disagreement Required To Be Filed on a Standardized Form

VA proposes to update the citations in § 19.24.

§ 19.25 Notification by Agency of Original Jurisdiction of Right To Appeal

VA does not propose any changes to § 19.25.

§ 19.26 Action by Agency of Original Jurisdiction on Notice of Disagreement

VA does not propose any changes to § 19.26.

§ 19.27 [Reserved]

Section 2, paragraph (s) of Public Law 115-55 repeals procedures for administrative appeals by striking section 7106 of title 38 of the United States Code. Therefore, VA proposes to remove § 19.27, relating to administrative appeals.

§ 19.28 Determination That a Notice of Disagreement Is Inadequate Protested by Claimant or Representative

VA does not propose any changes to § 19.28.

§ 19.29 Statement of the Case

VA does not propose any changes to § 19.29

for administrative appeals by striking section 7106 of title 38 of the United States Code. Therefore, VA proposes to remove § 19.27, relating to administrative appeals.

§ 19.28 Determination That a Notice of Disagreement Is Inadequate Protested by Claimant or Representative

VA does not propose any changes to § 19.28.

§ 19.29 Statement of the Case

VA does not propose any changes to § 19.29.

§ 19.30 Furnishing the Statement of the Case and Instructions for Filing a Substantive Appeal

Section 2, paragraph (x)(5) of Public Law 115-55 provides that a legacy appellant may elect to subject his or her appeal to the new system upon receipt of a Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC). Therefore, VA proposes to amend § 19.30 by requiring that all SOCs contain information on how to opt into the new system.

§ 19.31 Supplemental Statement of the Case

VA proposes to amend § 19.31 by requiring that all SSOCs contain information on how to opt into the new system.

§ 19.32 Closing of Appeal for Failure To Respond to Statement of the Case

VA does not propose any changes to § 19.32.

§ 19.33 [Reserved]

Section 2, paragraph (s) of Public Law 115-55 repeals procedures for

§ 19.34 Determination that Notice of Disagreement or Substantive Appeal Was Not Timely Filed Protested by Claimant or Representative

VA does not propose any changes to § 19.34.

§ 19.35 Certification of Appeals

Currently, certification to the Board may only be accomplished by completion of a VA Form 8. This requirement creates cumbersome administrative and technological processes which often delay certification of appeals, but do not serve Veterans in any way. Therefore, VA proposes to amend § 19.35 to eliminate the requirement for a Form 8, and will accomplish certification through other means.

§ 19.36 Notification of Certification of Appeal and Transfer of Appellate Record

VA proposes to update the citations in § 19.36

rsome administrative and technological processes which often delay certification of appeals, but do not serve Veterans in any way. Therefore, VA proposes to amend § 19.35 to eliminate the requirement for a Form 8, and will accomplish certification through other means.

§ 19.36 Notification of Certification of Appeal and Transfer of Appellate Record

VA proposes to update the citations in § 19.36.

§ 19.37 Consideration of Additional Evidence Received by the Agency of Original Jurisdiction After an Appeal Has Been Initiated

VA does not propose any changes to § 19.37.

§ 19.38 Action by Agency of Original Jurisdiction When Remand Received

VA proposes to update the citations in § 19.38.

Subpart C—Claimant Action in a Legacy Appeal

As noted, section 2, paragraph (s) of Public Law 115-55 repeals procedures for administrative appeals by striking section 7106 of title 38 of the United States Code. As this amendment is applicable to all appeals, VA proposes to remove subpart C of part 19, dealing with administrative appeals.

VA proposes to restructure subpart C of part 19 in order to consolidate procedures relating to commencement and filing of legacy appeals. Subpart D of part 20 deals with commencement and filing of appeals, including procedures for Statements of the Case. As these procedures require action by the agency of original jurisdiction rather than the Board, and are only applicable to appeals in the legacy system, VA proposes to move these provisions to subpart C of part 19.

§ 19.50 Who Can File an Appeal

VA proposes to redesignate § 20.301 as § 19.50.

§ 19.51 Place of Filing Notice of Disagreement and Substantive Appeal

VA proposes to redesignate § 20.300 as § 19.51.

§ 19.52 Time Limit for Filing Notice of Disagreement, Substantive Appeal, and Response to Supplemental Statement of the Case

VA proposes to redesignate § 20.302 as § 19.52

bpart C of part 19.

§ 19.50 Who Can File an Appeal

VA proposes to redesignate § 20.301 as § 19.50.

§ 19.51 Place of Filing Notice of Disagreement and Substantive Appeal

VA proposes to redesignate § 20.300 as § 19.51.

§ 19.52 Time Limit for Filing Notice of Disagreement, Substantive Appeal, and Response to Supplemental Statement of the Case

VA proposes to redesignate § 20.302 as § 19.52.

§ 19.53 Extension of Time for Filing Substantive Appeal and Response to Supplemental Statement of the Case

VA proposes to redesignate § 20.303 as § 19.53.

§ 19.54 Filing Additional Evidence Does Not Extend Time Limit for Appeal

VA proposes to redesignate § 20.304 as § 19.54.

§ 19.55 Withdrawal of Appeal

VA proposes to redesignate § 20.204 as § 19.55, add an address update, and add an internal reference.

Subpart D—[Reserved]

VA proposes to remove and reserve the two provisions of subpart D, dealing with field hearings. These provisions will be incorporated into subpart G of part 20, in order to streamline regulations concerning Board hearing procedures.

Subpart E—Simultaneously Contested Claims

VA does not propose any substantive changes to the procedures for simultaneously contested legacy claims, consisting of §§ 19.100-19.102.

Appendix A to Part 19—Cross-References

VA proposes to remove Appendix A to part 19, as it has outlived its usefulness. Cross-references currently located in the table are outdated or incorrect. Whereas a user may have previously used the appendix to search for other sections pertinent to a particular regulation, such research may be accomplished much more efficiently via a search of the electronic document.

Part 20—Board of Veterans' Appeals: Rules of Practice

As noted, VA proposes to restructure subparts A and B of part 20 by adding generally applicable provisions from part 19 and new provisions explaining applicability and new definitions. The following distribution table shows where each section of current part 20 is proposed to be moved

ore efficiently via a search of the electronic document.

Part 20—Board of Veterans' Appeals: Rules of Practice

Old section New section 20.100 20.102. 20.101 20.104. 20.102 20.110. 20.200 19.20; similar in 20.201. 20.201 19.21; similar in 20.202. 20.202 19.22. 20.204 19.55; similar in 20.205. 20.300 19.51; similar in 20.203. 20.301 19.50; similar in 20.204. 20.302 19.52; similar in 20.203. 20.303 19.53. 20.304 19.54. 20.305 20.110. 20.306 20.111. 20.400 Removed. 20.401 Removed. 20.500 20.501. 20.501 20.502. 20.502 20.503. 20.503 20.504. 20.504 20.505. 20.600 20.5. 20.608 20.6. 20.702 20.704; similar in 20.603. 20.703 20.602. 20.704 20.603. 20.705 20.601; similar in 20.702. 20.706 20.705. 20.707 20.604; similar in 20.706. 20.708 20.707. 20.709 20.605. 20.710 20.708. 20.711 20.709. 20.712 20.710. 20.713 20.711. 20.714 20.712. 20.715 20.713. 20.716 20.714. 20.717 20.715. 20.800 20.901. 20.900 20.902; similar in 20.801. 20.901 20.906; similar in 20.805. 20.902 20.907. 20.903 20.908. 20.904 20.1000. 20.1000 20.1001. 20.1001 20.1002. 20.1003 20.1003. 20.1502 Removed. 20.1504 Removed. 20.1505 Removed. 20.1506 Removed. 20.1507 Removed. 20.1508 Removed. 20.1509 Removed. Subpart A—General

§ 20.1 Rule 1. Purpose and Construction of Rules of Practice

VA proposes a minor edit to § 20.1, to provide the common name for the Board of Veterans' Appeals.

§ 20.2 Rule 2. Procedure in Absence of Specific Rule of Practice

VA proposes no changes.

§ 20.3 Rule 3. Definitions

VA proposes minor edits to § 20.3 Definitions, to remove terms that are no longer used in part 20, or are defined elsewhere in the part. VA also proposes to adopt the definition of “claim” used in part 3 of this title.

§ 20.4 Rule 4

name for the Board of Veterans' Appeals.

§ 20.2 Rule 2. Procedure in Absence of Specific Rule of Practice

VA proposes no changes.

§ 20.3 Rule 3. Definitions

§ 20.4 Rule 4. Appeal Systems Definitions and Applicability Provisions

VA proposes to add new § 20.4, appeal systems definitions and applicability provisions, to provide definitions and an explanation of the applicability of the new system. Proposed § 20.4 assists appellants in understanding which system applies to their appeal. It provides specific instructions for appellants to locate the regulations applicable to their appeal, and explains options that may be available for legacy claimants to take advantage of the new system.

§ 20.5 Rule 5. Right to Representation

VA proposes to redesignate § 20.600 as § 20.5.

§ 20.6 Rule 6. Withdrawal of Services by a Representative

VA proposes to redesignate § 20.608 as § 20.6, and make minor changes to reflect the different procedures for withdrawal of representatives in legacy appeals and appeals in the new system. Specifically, current § 20.608 draws a distinction between withdrawal of services by a representative prior to certification to the Board, and withdrawal after certification. In the new appeals system, Notices of Disagreement are filed directly to the Board, and thus the certification process will not be applicable to new appeals. Proposed § 20.6 clarifies that the rules governing withdrawal of representation after certification apply to both appeals in the legacy system that have been certified, and all appeals in the new system. The rules governing withdrawal of representation prior to certification apply only to legacy appeals that have not yet been certified.

Subpart B—The Board

§ 20.100 Rule 100

ble to new appeals. Proposed § 20.6 clarifies that the rules governing withdrawal of representation after certification apply to both appeals in the legacy system that have been certified, and all appeals in the new system. The rules governing withdrawal of representation prior to certification apply only to legacy appeals that have not yet been certified.

Subpart B—The Board

§ 20.100 Rule 100. Establishment of the Board

VA proposes to redesignate § 19.1 as § 20.100.

§ 20.101 Rule 101. Composition of the Board; Titles

VA proposes to redesignate § 19.2 as § 20.101.

§ 20.102 Rule 102. Name, Business Hours, and Mailing Address of the Board

VA proposes to redesignate § 20.100 as § 20.102 and update the mailing address.

§ 20.103 Rule 103. Principal Functions of the Board

VA proposes to redesignate § 19.4 as § 20.103.

§ 20.104 Rule 104. Jurisdiction of the Board

VA proposes to redesignate § 20.101 as § 20.104, and make minor changes. Specifically, VA proposes to reverse paragraphs (c) and (d) to condense information applicable only to legacy appeals. VA also proposes to redesignate § 19.5 as § 20.105. This move would make the third sentence of § 20.104(a) redundant. Thus, VA proposes to remove that sentence from § 20.104, and incorporate it with § 20.105. Citations are also updated.

§ 20.105 Rule 105. Criteria Governing Disposition of Appeals

As noted above, VA proposes to redesignate § 19.5 as § 20.105 and clarify that the criteria governing the disposition of appeals also applies to decisions of the Board. Proposed § 20.105 includes the rules governing precedent opinions of the General Counsel of the Department of Veterans Affairs which are currently duplicated in § 20.104(a) and § 19.5. This nonsubstantive change reduces redundant paragraphs and simplifies the rule.

§ 20.106 Rule 106. Assignment of Proceedings

VA proposes to redesignate § 19.3 as § 20.106.

§ 20.107 Rule 107

ions of the Board. Proposed § 20.105 includes the rules governing precedent opinions of the General Counsel of the Department of Veterans Affairs which are currently duplicated in § 20.104(a) and § 19.5. This nonsubstantive change reduces redundant paragraphs and simplifies the rule.

§ 20.106 Rule 106. Assignment of Proceedings

VA proposes to redesignate § 19.3 as § 20.106.

§ 20.107 Rule 107. Disqualification of Members

VA proposes to redesignate § 19.12 as § 20.107 and remove paragraph (b), dealing with administrative appeals.

§ 20.108 Rule 108. Delegation of Authority to Chairman and Vice Chairman, Board of Veterans' Appeals

VA proposes to redesignate § 19.13 as § 20.108.

§ 20.109 Rule 109. Delegation of Authority to Vice Chairman, Deputy Vice Chairman, or Members of the Board

VA proposes to combine current § 19.14 with § 20.102 and redesignate the section as § 20.109, and update citations. This nonsubstantive change reduces redundant paragraphs and simplifies the rule.

§ 20.110 Rule 110. Computation of Time Limit for Filing

VA proposes to redesignate § 20.305 as § 20.110.

§ 20.111 Rule 111. Legal Holidays

VA proposes to redesignate § 20.306 as § 20.111 and update the citations.

Subpart C—Commencement and Filing of Appeals

VA proposes to add a new subpart C, applicable only to appeals in the new system. Provisions in current subpart C applicable to legacy appeals would be redesignated and moved to part 19 as described elsewhere in this document. Proposed subpart C contains provisions dealing with the filing of a Notice of Disagreement. Although Public Law 115-55 makes some changes to Notice of Disagreement filing procedures, many of these procedures will remain the same; therefore, the proposed regulations contained in subpart C are similar to the Notice of Disagreement regulations currently in place.

§ 20.200 Rule 200. Notification by Agency of Original Jurisdiction of Right To Appeal

VA proposes to add new § 20.200, similar to current § 19.25.

§ 20.201 Rule 201

nges to Notice of Disagreement filing procedures, many of these procedures will remain the same; therefore, the proposed regulations contained in subpart C are similar to the Notice of Disagreement regulations currently in place.

§ 20.200 Rule 200. Notification by Agency of Original Jurisdiction of Right To Appeal

VA proposes to add new § 20.200, similar to current § 19.25.

§ 20.201 Rule 201. What Constitutes an Appeal

VA proposes to add new § 20.201, similar to current § 20.200. The amendments made to 38 U.S.C. 7105 direct that an appeal to the Board is accomplished by filing a Notice of Disagreement directly to the Board. Therefore, proposed § 20.201 reflects this change in procedure.

§ 20.202 Rule 202. Notice of Disagreement

VA proposes to add new § 20.202, similar to current § 20.201. Public Law 115-55 requires that appellants indicate on their Notice of Disagreement the specific determination with which they disagree, and whether they request a Board hearing (which includes the opportunity to submit additional evidence within 90 days following the Board hearing), an opportunity to submit additional evidence within 90 days following submission of the Notice of Disagreement, or direct review of the evidence that was before the agency of original jurisdiction by the Board. Thus, paragraphs (a) and (b) of proposed § 20.202 reflect these changes to the information that must be indicated on the Notice of Disagreement.

Public Law 115-55 requires that VA create a policy allowing appellants to change the information indicated on the Notice of Disagreement, meaning that an appellant may request to change the evidentiary record before the Board. In crafting this policy, VA sought to provide appellants with an opportunity to change their initial election if their circumstances or preference changed. However, VA also wanted to prevent an appellant from unfairly gaining the advantage of two dockets

the information indicated on the Notice of Disagreement, meaning that an appellant may request to change the evidentiary record before the Board. In crafting this policy, VA sought to provide appellants with an opportunity to change their initial election if their circumstances or preference changed. However, VA also wanted to prevent an appellant from unfairly gaining the advantage of two dockets. For example, an appellant should not be permitted to take advantage of the faster direct review docket if he or she has already submitted evidence or testified at a Board hearing.

Additionally, VA sought to limit the time period in which appellants may request to modify the Notice of Disagreement. VA has established a 365-day timeliness goal for appeals in the direct review docket. VA also intends to provide wait time predictions for the evidence and hearing dockets. If appellants are able to modify their Notices of Disagreement, and thereby change dockets at any time prior to the Board's decision on the issue or issues, VA will not be able to provide accurate wait time information. This would diminish the ability of other Veterans to make informed choices as to which of the Board's dockets best suits their individual needs.

Proposed § 20.202(c)(1) provides that the appellant's election of an evidentiary record on the Notice of Disagreement determines the docket on which the appeal is placed, and that the Board will not consider additional evidence or schedule a hearing unless the appellant indicated one of those options on the Notice of Disagreement. Paragraph (c)(2) provides that an appellant may modify the Notice of Disagreement for the purpose of selecting a different evidentiary record option. The request to modify must be made within one year of the agency of original jurisdiction decision on appeal, or 30 days after the Notice of Disagreement is received by the Board, whichever is later. The request will be denied if the appellant has already submitted evidence or testimony

ellant may modify the Notice of Disagreement for the purpose of selecting a different evidentiary record option. The request to modify must be made within one year of the agency of original jurisdiction decision on appeal, or 30 days after the Notice of Disagreement is received by the Board, whichever is later. The request will be denied if the appellant has already submitted evidence or testimony.

Additionally, nothing in the regulations prevent an appellant from filing multiple Notices of Disagreement within the one-year period. Therefore, if an appellant wants to add additional issues not initially included on the Notice of Disagreement, the appellant is free to submit an additional Notice of Disagreement identifying these issues, as long as this additional Notice of Disagreement is timely submitted.

Paragraphs (f) and (g) of proposed § 20.202 provide procedures for how the Board will handle unclear or deficient Notices of Disagreement. The new framework shifts jurisdiction to the Board for any question as to the adequacy of Notices of Disagreement. Veterans Law Judges will retain their discretion to interpret some unclear statements on Notices of Disagreements in the light most favorable to the Veteran. However, proposed paragraphs (f) and (g) are necessary to outline the procedures the Board will take when an inadequate Notice of Disagreement is received at the Board. Specifically, the proposed rule addresses the problem created when the Board receives a Notice of Disagreement electing more than one evidentiary option, no evidentiary option, or when it is otherwise unclear how the appeal should be docketed.

agreement electing more than one evidentiary option, no evidentiary option, or when it is otherwise unclear how the appeal should be docketed.

The proposed rule is closely aligned with the process for clarifying Notices of Disagreement in the legacy appeals system. When the Board receives an unclear or deficient Notice of Disagreement, the Board will notify the claimant and request clarification. The claimant must respond with the requested clarification within one year after the agency of original jurisdiction decision, or 60 days after the date of the Board's clarification request, whichever is later. If the claimant does not provide a timely response, the previous statement from the claimant will not be considered a Notice of Disagreement.

Paragraph (h) of proposed § 20.202 provides that, when an unclear Notice of Disagreement is properly clarified, the Notice of Disagreement will be considered to have been properly filed on the date of clarification. This means that the docket date will be based upon the date of the clarification, and if the appellant requests to submit evidence, the 90-day window for evidence submission will begin on the date of clarification.

§ 20.203 Rule 203. Place and Time of Filing Notice of Disagreement

VA proposes to add new § 20.203, similar to the provisions of current §§ 20.300 and 20.302. Proposed § 20.203 differs from current §§ 20.300 and 20.302 in that Public Law 115-55 requires that Notices of Disagreement are filed with the Board. In contrast, current §§ 20.300 and 20.302 provide that Notices of Disagreement are filed with the agency of original jurisdiction.

§ 20.204 Rule 204. Who Can File a Notice of Disagreement

VA proposes to add new § 20.204, similar to current § 20.301. Proposed § 20.204 differs from current § 20.301 in that the provisions of § 20.301 also apply to the filing of a Substantive Appeal. Public Law 115-55 eliminates procedures relating to Substantive Appeals; therefore, proposed § 20.204 does not discuss Substantive Appeals

tion.

§ 20.204 Rule 204. Who Can File a Notice of Disagreement

§ 20.205 Rule 205. Withdrawal of Appeal

VA proposes to add new § 20.205, similar to current § 20.204. Proposed § 20.205 differs from the rules for withdrawal of a legacy appeal in that paragraph (c) of proposed § 20.205 provides that, in addition to filing a new Notice of Disagreement, a claimant may request a higher-level review or file a supplemental claim following the withdrawal of the Notice of Disagreement, provided such filing would be timely.

Subpart D—Evidentiary Record

VA proposes to add new subpart D, Evidentiary Record, in place of current subpart D, Filing, which VA proposes to move to part 19. New subpart D is proposed to implement 38 U.S.C. 7113, a new section added by Public Law 115-55 to establish the evidentiary record before the Board. The evidentiary record before the Board is determined by the appellant's election on his or her Notice of Disagreement. The appellant's election will determine whether the Board considers (1) only the evidence that was of record at the time of the prior agency of original jurisdiction decision; (2) the evidence that was of record before at the time of the prior agency of original jurisdiction decision and any additional evidence submitted within 90 days of submission of the Notice of Disagreement; or (3) the evidence that was of record at the time of the prior agency of original jurisdiction decision and any evidence submitting during, or within 90 days thereafter, the Board hearing.

§ 20.300 Rule 300. General

Proposed § 20.300 provides that decisions of the Board will be based on a de novo review of the evidence, as provided in § 20.801

days of submission of the Notice of Disagreement; or (3) the evidence that was of record at the time of the prior agency of original jurisdiction decision and any evidence submitting during, or within 90 days thereafter, the Board hearing.

§ 20.300 Rule 300. General

Proposed § 20.300 provides that decisions of the Board will be based on a de novo review of the evidence, as provided in § 20.801.

§ 20.301 Rule 301. Appeals With No Request for a Board Hearing and No Additional Evidence

Proposed § 20.301 provides that, for appeals with no request to appear at a hearing or submit additional evidence, the Board will consider only the evidence that was before the agency of original jurisdiction in the decision on appeal.

§ 20.302 Rule 302. Appeals With a Request for a Board Hearing

Proposed § 20.302 provides that, for appeals with a request for a Board hearing, the Board will consider the evidence that was before the agency of original jurisdiction in the decision on appeal, testimony presented at a Board hearing, and any additional evidence submitted within 90 days of the Board hearing.

Public Law 115-55 does not describe the evidentiary record in the event that a hearing request is withdrawn or the appellant does not appear for a scheduled hearing. Thus, the Board proposes paragraphs (b) and (c) of § 20.302 to specify that appellants who requested a hearing on the Notice of Disagreement, but ultimately do not appear for a hearing will retain the opportunity to submit additional evidence within a 90-day window.

§ 20.303 Rule 303

record in the event that a hearing request is withdrawn or the appellant does not appear for a scheduled hearing. Thus, the Board proposes paragraphs (b) and (c) of § 20.302 to specify that appellants who requested a hearing on the Notice of Disagreement, but ultimately do not appear for a hearing will retain the opportunity to submit additional evidence within a 90-day window.

§ 20.303 Rule 303. Appeals With No Request for a Board Hearing, But With a Request for Submission of Additional Evidence

Proposed § 20.303 provides that, for appeals with no request for a Board hearing, but with a request to submit additional evidence, the Board will consider the evidence that was before the agency of original jurisdiction in the decision on appeal, and any additional evidence submitted with the Notice of Disagreement or within 90 days following receipt of the Notice of Disagreement. As noted above, when an appellant requests to modify the Notice of Disagreement for the purpose of requesting an opportunity to submit additional evidence, the Board will notify the appellant whether the request has been granted, and if so, that the appeal has been moved to the docket for appeals described in this section. The 90-day window for submission of additional evidence will begin on the date of such notice.

Public Law 115-55 requires that VA create at least two new dockets—a docket for appeals with a request for a Board hearing and a docket for appeals with no request for a Board hearing—but affords VA discretion to create additional dockets. VA proposes to establish three dockets for appeals adjudicated under the modernized appeals system. The first docket is for Veterans who do not want a hearing and do not wish to submit additional evidence, as provided by proposed § 20.301. The second docket is for Veterans who wish to have a hearing, as provided by proposed § 20.302. Finally, the third docket is for Veterans who wish to submit additional evidence, but do not want a hearing before a Veterans Law Judge

e modernized appeals system. The first docket is for Veterans who do not want a hearing and do not wish to submit additional evidence, as provided by proposed § 20.301. The second docket is for Veterans who wish to have a hearing, as provided by proposed § 20.302. Finally, the third docket is for Veterans who wish to submit additional evidence, but do not want a hearing before a Veterans Law Judge.

Creation of these three separate dockets has multiple benefits. Most importantly, this docket structure provides greater opportunity for Veterans to tailor their appeals experience to best suit their individual needs. The first docket, described in proposed § 20.301, captures quality feedback from appeals in which no additional evidence is added to the record. This allows VA to identify areas in which the claims process can be improved and will allow VA to develop targeted training. Allowing additional evidence submission for appeals in the docket described in proposed § 20.301 would break this quality feedback loop. Veterans with a strong preference to appear at a Board hearing before a Veterans Law Judge may choose the docket described in proposed § 20.302.

The docket described in proposed § 20.303 allows Veterans to submit additional evidence that may assist in establishing entitlement to benefits, without the wait time that is associated with Board hearings. Public Law 115-55 does not permit appeals with no request for a hearing to be placed on the same docket as appeals with a request for a hearing. See Public Law 115-55, section 2(t), amending 38 U.S.C. 7107(a)(3). Therefore, creation of the third docket described in proposed § 20.303 is necessary to provide Veterans with the option to submit additional evidence without a hearing.

ibed in proposed § 20.303 is necessary to provide Veterans with the option to submit additional evidence without a hearing.

There is no cost associated with establishing the docket described in proposed § 20.303. The technological system required to track and manage appeals at the Board is designed to maintain multiple dockets in both the legacy and modernized appeals systems, as required by law. Adding a third docket to process appeals with no request for a Board hearing, but with a request to submit additional evidence does not result in any additional cost from an information technology development perspective. Moreover, there is no additional cost associated with the adjudication of such appeals, as the Board will apply the same substantive law regarding entitlement to benefits to all appeals. There is no additional administrative or adjudicative burden caused by maintaining a separate docket for evidence submission.

Subpart E—Appeal in Simultaneously Contested Claims

VA proposes to add new subpart E, Appeal in Simultaneously Contested Claims, in place of current subpart E, Administrative Appeals, which Public Law 115-55 repeals. Proposed subpart E would largely mirror subpart F, which VA proposes to make applicable only to legacy appeals. Subpart E would differ from subpart F insofar as the procedures for filing an appeal in the new system differ from those in the legacy system. For example, subpart F continues to describe notice and filing requirements for formal appeals and Statements of the Case. As Public Law 115-55 repeals procedures for formal appeals and Statements of the Case, subpart E does not have provisions related to these procedures. As discussed above, under the proposed new framework, simultaneously contested claims may only be appealed to the Board. Additionally, proposed subpart E addresses the circumstances—unique to the new framework, in which contesting parties request different evidentiary options.

§ 20.400 Rule 400

al appeals and Statements of the Case, subpart E does not have provisions related to these procedures. As discussed above, under the proposed new framework, simultaneously contested claims may only be appealed to the Board. Additionally, proposed subpart E addresses the circumstances—unique to the new framework, in which contesting parties request different evidentiary options.

§ 20.400 Rule 400. Notification of the Right To Appeal in a Simultaneously Contested Claim

Proposed § 20.401, similar to current § 19.100, describes the notification procedures when the agency of original jurisdiction takes an action in a simultaneously contested claim.

§ 20.401 Rule 401. Who Can File an Appeal in Simultaneously Contested Claims

Proposed § 20.401, similar to current § 20.500, describes who can file an appeal in simultaneously contested claims.

§ 20.402 Rule 402. Time Limits for Filing Notice of Disagreement in Simultaneously Contested Claims

Proposed § 20.402, similar to current § 20.501, describes the time limits for filing a Notice of Disagreement in a simultaneously contested claim.

§ 20.403 Rule 403. Notice to Contesting Parties on Receipt of Notice of Disagreement in Simultaneously Contested Claims

Proposed § 20.403, similar to current § 20.502, also specifies that the notice to contesting parties upon receipt of a Notice of Disagreement must indicate the type of review requested by the appellant who initially filed the Notice of Disagreement, including whether a hearing was requested.

§ 20.404 Rule 404. Time Limit for Response to Appeal by Another Contesting Party in a Simultaneously Contested Claim

Proposed § 20.404 provides that a party to a simultaneously contested claim may file a brief, argument, or

§ 20.405 Rule 405. Docketing of Simultaneously Contested Claims at the Board

Proposed § 20.405 resolves any conflict between two parties who request different evidentiary options under § 20.202(b)

mit for Response to Appeal by Another Contesting Party in a Simultaneously Contested Claim

Proposed § 20.404 provides that a party to a simultaneously contested claim may file a brief, argument, or

§ 20.405 Rule 405. Docketing of Simultaneously Contested Claims at the Board

Proposed § 20.405 resolves any conflict between two parties who request different evidentiary options under § 20.202(b). The proposed rule provides that, if any party requests a hearing before the Board, the appeal will be placed on the hearing docket and a hearing will be scheduled. If neither party requests a hearing, but any party requests an opportunity to submit additional evidence, the appeal will be placed on the evidence docket. VA will notify both parties when an appeal is placed on any docket. If the appeal is placed on the evidence docket, the parties will have 90 days from the date of such notice in which to submit additional evidence.

§ 20.406 Rule 406. Notices Sent to Last Addresses of Record in Simultaneously Contested Claims

Proposed § 20.406, similar to current § 20.504, describes the procedures for sending notice to parties in contested claims.

§ 20.407 Rule 407. Favorable Findings Are Not Binding in Contested Claims

The favorable finding rule is impossible to apply in the context of contested claims, because a particular factual finding might be favorable to one appellant but unfavorable to another. Because the application of this rule in the context of simultaneously contested claims would produce absurd results, proposed § 20.407 clearly provides that favorable findings are not binding in the context of simultaneously contested appeals.

Subpart F—Legacy Appeal in Simultaneously Contested Claims

VA proposes to add new “§ 20.500 Rule 500. Applicability.” in order to better inform appellants as to which subpart is applicable to their appeal. Aside from renumbering to accommodate the new applicability section and necessary citation updates, VA does not propose additional changes to subpart F

t of simultaneously contested appeals.

Subpart F—Legacy Appeal in Simultaneously Contested Claims

Subpart G—Legacy Hearings on Appeal

As noted above, VA proposes to redesignate § 20.600 and § 20.608, dealing with representation, to subpart B, as these provisions are generally applicable to both appeals systems. Proposed new subpart G would contain special provisions for hearings in legacy appeals, while amendments to subpart H are proposed to make that subpart applicable to hearings on appeals in both systems.

Amendments to hearing regulations for legacy and new system appeals are necessary in light of the Jeff Miller and Richard Blumenthal Veterans Health Care and Benefits Improvement Act of 2016, Public Law 114-315. In relevant part, Public Law 114-315, by amending 38 U.S.C. 7107, establishes the Board's authority, upon request for a hearing, to determine what type of hearing it will provide an appellant, while affording the appellant the opportunity to request an alternative type of hearing once the Board makes its initial determination. Notably, field hearings will only be available in the legacy system. Therefore, provisions applicable to field hearings, currently contained in subpart D of part 19, and subpart H of part 20, are proposed to be moved into subpart G.

§ 20.600 Rule 600. Applicability

VA proposes new § 20.600 to assist appellants in determining the hearing regulations applicable to their appeal.

§ 20.601 Rule 601. Methods by Which Hearings in Legacy Appeals Are Conducted; Scheduling and Notice Provisions for Such Hearings

VA proposes to redesignate § 20.705 as § 20.601, and amend to reflect the procedures applicable only to legacy appeals

§ 20.600 Rule 600. Applicability

VA proposes new § 20.600 to assist appellants in determining the hearing regulations applicable to their appeal.

§ 20.601 Rule 601. Methods by Which Hearings in Legacy Appeals Are Conducted; Scheduling and Notice Provisions for Such Hearings

VA proposes to redesignate § 20.705 as § 20.601, and amend to reflect the procedures applicable only to legacy appeals. Proposed § 20.601 would clarify that a hearing before the Board may be conducted via an in-person hearing held at the Board's principal location in Washington, DC, via electronic means, or at a Department of Veterans Affairs facility having adequate physical resources and personnel for the support of such hearings. Further, proposed § 20.601 informs the reader that procedures for scheduling and providing notice of Board hearings in legacy appeals conducted at the Board's principal location or via electronic means are contained in § 20.704, while procedures for scheduling and providing notice of Board hearings in legacy appeals conducted at field facilities are contained in § 20.603.

§ 20.602 Rule 602. When a Hearing Before the Board of Veterans' Appeals May Be Requested in a Legacy Appeal; Procedure for Requesting a Change in Method of Hearing

VA proposes to retitle, revise, and expand § 20.703, redesignated as § 20.602, to clarify when and how legacy appellants may request hearings before the Board. These revisions implement the changes to 38 U.S.C. 7107 that require the Board to determine the method of a hearing and notify the appellant of its decision. As noted, although the Board will now be making the initial determinations regarding the method by which hearings will be conducted, appellants' rights to request a different type of hearing are preserved. Also, the Board alone will provide notification of the method and scheduling of hearings.

§ 20.603 Rule 603

Board to determine the method of a hearing and notify the appellant of its decision. As noted, although the Board will now be making the initial determinations regarding the method by which hearings will be conducted, appellants' rights to request a different type of hearing are preserved. Also, the Board alone will provide notification of the method and scheduling of hearings.

§ 20.603 Rule 603. Scheduling and Notice of Hearings Conducted by the Board of Veterans' Appeals at Department of Veterans Affairs Field Facilities in a Legacy Appeal

VA proposes to combine § 19.75 and § 20.704, and to redesignate as § 20.603. Proposed § 20.603 will clarify the procedures for the scheduling of hearings at VA field facilities. Field hearings for legacy appeals are scheduled in relationship to the need for the entire docket. Field hearing requests for legacy appeals are now handled by the Board alone and timing for requests is clarified. Citations and address are updated.

§ 20.604 Rule 604. Designation of Member or Members To Conduct the Hearing in a Legacy Appeal

VA proposes to redesignate § 20.707 as § 20.604, and amend the section to differentiate the procedures for legacy appeals. Citations are also updated.

§ 20.605 Rule 605. Procurement of Additional Evidence Following a Hearing in a Legacy Appeal

VA proposes to redesignate § 20.709 as § 20.605, and amend the section title to reflect that the provision is only applicable to legacy appeals. As notice, the evidentiary record in the new system is governed by subpart D.

Subpart H—Hearings on Appeal

No changes are proposed to § 20.701.

§ 20.700 Rule 700. General

VA proposes to amend § 20.700 by removing outdated procedures for representatives to present oral arguments on an audio cassette. It is the Board's practice to accept written arguments from a representative in the form of informal hearing presentations. Additionally, the presiding member may accept oral argument from a representative. This amendment will not disrupt those practices

700. General

VA also proposes to remove paragraph (e), regarding electronic hearings, as these procedures are described in § 20.702(b).

§ 20.702 Rule 702. Methods by Which Hearings Are Conducted

VA proposes new § 20.702, describing the types of hearings available to appellants in the new system. Similar to current § 20.705 (proposed here to be redesignated as § 20.601), this section will provide appellants and other readers with a clear understanding of the different methods by which Board hearings are conducted. Proposed § 20.702 would clarify that a hearing before the Board may be conducted via electronic means or via an in-person hearing held at the Board's principal location in Washington, DC.

§ 20.703 Rule 703. When a Hearing Before the Board of Veterans' Appeals May Be Requested; Procedure for Requesting a Change in Method of Hearing

VA proposes new § 20.703 to clarify when and how appellants may request hearings before the Board. These revisions implement the changes to 38 U.S.C. 7107 that require the Board to determine the method of a hearing and notify the appellant of its decision. As noted, although the Board will now be making the initial determinations regarding the method by which hearings will be conducted, appellants' rights to request a different type of hearing are preserved.

§ 20.704 Rule 704. Scheduling and Notice of Hearings Conducted by the Board of Veterans' Appeals

VA proposes to redesignate § 20.702 as § 20.704, and amend to reflect scheduling and notice procedures applicable to appeals in the new system, similar to § 20.603, applicable only to hearings in the legacy system

e conducted, appellants' rights to request a different type of hearing are preserved.

§ 20.704 Rule 704. Scheduling and Notice of Hearings Conducted by the Board of Veterans' Appeals

§ 20.705 Rule 705. Functions of the Presiding Member

VA proposes to redesignate § 20.706 as § 20.705, and amend the section to provide a more comprehensive list of functions of the presiding Member conducting the Board hearing.

§ 20.706 Rule 706. Designation of Member or Members To Conduct the Hearing

VA proposes to add new § 20.706 to differentiate the procedures for appeals in the new system, similar to proposed § 20.604, applicable to legacy appeals.

§ 20.707 Rule 707. Prehearing Conference

Currently, § 20.708 requires different procedures for requesting a prehearing conference, depending on the method of hearing. It is the Board's practice not to require formal requests for prehearing conferences. VA proposes to eliminate regulations describing procedures that are confusing and burdensome for appellants, and instead provide a streamlined approach that is in line with current practices. Thus, VA proposes to redesignate § 20.708 as § 20.707 and amend the section.

§ 20.708 Rule 708. Witnesses at Hearings

VA proposes to redesignate § 20.710 as § 20.708.

§ 2.709 Rule 709. Subpoenas

VA proposes to redesignate § 20.711 as § 20.709. Addresses are updated.

§ 20.710 Rule 710. Expenses of Appellants, Representatives, and Witnesses Incident to Hearings Not Reimbursable by the Government

VA proposes to redesignate § 20.712 as § 20.710.

§ 20.711 Rule 711. Hearings in Simultaneously Contested Claims

As noted above, VA proposes to streamline the timelines for requesting a change in hearing date

designate § 20.711 as § 20.709. Addresses are updated.

§ 20.710 Rule 710. Expenses of Appellants, Representatives, and Witnesses Incident to Hearings Not Reimbursable by the Government

VA proposes to redesignate § 20.712 as § 20.710.

§ 20.711 Rule 711. Hearings in Simultaneously Contested Claims

As noted above, VA proposes to streamline the timelines for requesting a change in hearing date. For simultaneously contested claims, however, it is necessary to provide time limits in order to preserve the rights of all appellants. Therefore, VA proposes to redesignate § 20.713 as § 20.711 and amend the section by clarifying the procedures for hearings in simultaneously contested claims, in particular hearing date change requests.

§ 20.712 Rule 712. Record of Hearing

VA proposes to redesignate § 20.714 as § 20.712 and amend the section to reflect current practices. Current § 20.714 contains lengthy and confusing rules dictating when a hearing transcript is prepared. However, it is the Board's practice to create hearing transcripts for all appeals, and to provide a copy of a transcript when requested.

§ 20.713 Rule 713. Recording of Hearing by Appellant or Representative

VA proposes to redesignate § 20.715 as § 20.713 and amend the section to streamline the process for an appellant or representative to record a hearing with his or her own equipment. Currently, different procedures are applicable depending on where the hearing was held.

§ 20.714 Rule 714. Correction of Hearing Transcripts

VA proposes to redesignate § 20.716 as § 20.714 and amend the section to remove outdated references to tape recordings, and streamline the process for requesting correction of hearing transcripts. Currently, different procedures are applicable depending on where the hearing was held. The address is also updated.

§ 20.715 Rule 715

was held.

§ 20.714 Rule 714. Correction of Hearing Transcripts

§ 20.715 Rule 715. Loss of Hearing Recordings or Transcripts—Motion for New Hearing

Current § 20.717 contemplates the loss or partial loss of a hearing recording or transcript, and requires that the appellant file a motion for a new hearing if desired, specifying why prejudice would result from the failure to provide a new hearing. It has been VA's practice to waive this motion requirement in the event that the Board discovers a loss of recordings or transcripts of hearings. VA proposes to redesignate § 20.717 as § 20.715 and amend the section to reflect the current, more appellant-friendly practice. Revised § 20.715 would require the Board to notify the appellant and his or her representative when such loss has occurred, and provide the appellant a choice of appearing at a new Board hearing, or having the Board proceed to appellate review of the appeal based on the evidence of record.

Subpart I—Appeals Processing

VA proposes to add new subpart I, Appeals Processing. Currently, subpart I contains only one section, which VA proposes to move into subpart J. New subpart I would describe processing of appeals in the new system at the Board.

§ 20.800 Rule 800. Order of Consideration of Appeals

VA proposes to add new § 20.800, to describe the docketing of appeals. While this new section is similar to current § 20.900, it follows Public Law 115-55's direction in creating separate dockets, and docketing appeals in the order in which they are received on their respective dockets

be processing of appeals in the new system at the Board.

§ 20.800 Rule 800. Order of Consideration of Appeals

Public Law 115-55 requires that VA create at least two new dockets—a docket for appeals with a request for a Board hearing, and a docket for appeals with no request for a Board hearing—but affords VA discretion to create additional dockets. VA proposes to establish three dockets to handle appeals adjudicated under the new system. The “direct” docket will be for Veterans who do not want a hearing and do not wish to submit additional evidence. The “evidence” docket will be for Veterans who wish to submit additional evidence, but do not want a Board hearing. Finally, the “hearing” docket will be for Veterans who wish to have a hearing before a Veterans Law Judge. Creation of these three separate dockets will have multiple benefits.

Public Law 115-55 requires that VA develop a policy allowing appellants to move their appeal from one docket to another. As noted, VA developed a policy allowing appellants to modify the information identified in the Notice of Disagreement. By requesting a different evidentiary option under the procedures described above, appellants are essentially requesting to change dockets as well. When a request to modify a Notice of Disagreement includes a request to change the hearing or evidence submission request, the Board will move the appeal to the appropriate docket, retaining the original docket date.

ement includes a request to change the hearing or evidence submission request, the Board will move the appeal to the appropriate docket, retaining the original docket date.

Proposed § 20.800(e) is added to explain that a case will not be returned to the Board following the agency of original jurisdiction's readjudication of an appeal previously remanded by the Board. Pursuant to amended 38 U.S.C. 5104C, a claimant's options for further review of the agency of original jurisdiction's decision include filing a new Notice of Disagreement. Where a new Notice of Disagreement is filed following readjudication by the agency of original jurisdiction, the case will be docketed in the order in which the most recent Notice of Disagreement was received. There is no statutory provision requiring that a case be returned to the Board following readjudication by the agency of original jurisdiction or that the Board provide expeditious treatment when a new appeal is filed following such readjudication.

§ 20.801 Rule 801. The Decision

Proposed § 20.801 describes general rules regarding Board decisions in the new system, similar to current § 19.7. Proposed § 20.801 differs from current § 19.7 in that it reflects Public Law 115-55's provisions regarding the evidentiary record, prior favorable findings, and notice requirements. As noted, Public Law 115-55 creates new section 7113 outlining the evidentiary record before the Board. Proposed § 20.801(a) explains that the Board's decision will be based on a de novo review of the evidence of record before the agency of original jurisdiction, as well as any additional evidence submitted pursuant to section 7113. Additionally, Public Law 115-55 creates a new requirement that VA provide a general statement as to whether any evidence was received at a time not permitted by section 7113. This statement must also inform the appellant that any such evidence was not considered by the Board, and explain the options available to have that evidence reviewed

ny additional evidence submitted pursuant to section 7113. Additionally, Public Law 115-55 creates a new requirement that VA provide a general statement as to whether any evidence was received at a time not permitted by section 7113. This statement must also inform the appellant that any such evidence was not considered by the Board, and explain the options available to have that evidence reviewed. Thus, § 20.801(b)(3) reflects this notice requirement. Finally, Public Law 115-55 amends chapter 51 by adding a new section, 5104A, requiring that any finding favorable to the claimant will be binding on subsequent adjudicators. Thus, proposed § 20.801(a) reflects that any findings favorable to the claimant with regard to the issue or issues on appeal, as identified by the agency of original jurisdiction, are binding on the Board's decision, unless rebutted by clear and convincing evidence. In practice, the Board would rarely disturb such findings prior to enactment of the Appeals Modernization Act. This regulation is largely serving to codify a longstanding practice of the Board not to disturb favorable findings or elements of the claim made by the agency of original jurisdiction.

§ 20.802 Rule 802. Remand for Correction of Error

Proposed § 20.802 describes general rules regarding Board remands in the new system, similar to current § 19.9. Proposed § 20.802 differs from current § 19.9 in that it reflects Public Law 115-55's provisions regarding the duty to assist. Amended section 5103A(e)(2) specifies that the Secretary's duty to assist does not apply to review on appeal by the Board. Thus, under the amendments made by Public Law 115-55, the Board may no longer remand an appeal for the purposes of developing additional evidence. Rather, under amended 38 U.S.C. 5103A(f)(2)(A), the Board shall remand an appeal to correct an error on the pa

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