PART 19—BOARD OF VETERANS' APPEALS: LEGACY APPEALS REGULATIONS Authority: 38 U.S.C. 501(a), unless otherwise noted. Source: 57 FR 4104, Feb. 3, 1992, unless otherwise noted. Subpart A—Applicability § 19.1 Provisions applicable to legacy appeals. Part 19 and subparts F, G, and J of part 20 apply only to the processing and adjudication of legacy appeals, as defined in § 19.2. Except as otherwise provided in specific sections, subparts A, B, H, K, L, M, N, and O of part 20 apply to the processing and adjudication of both appeals and legacy appeals. For applicability provisions concerning appeals in the modernized review system, see § 20.4 of this chapter. [84 FR 177, Jan. 18, 2019] § 19.2 Appellant's election for review of a legacy appeal in the modernized system. (a) Effective date. the effective date (b) Modernized review system. (c) Legacy appeals. (d) Election into the modernized review system. (1) A claimant with a legacy claim or appeal elects the modernized review system pursuant to 38 CFR 3.2400(c)(1); (2) A claimant with a legacy claim or appeal elects the modernized review system, following issuance, on or after the effective date, of a VA Statement of the Case or Supplemental Statement of the Case. The election is made by filing, on a form prescribed by the Secretary, an appeal in accordance with 38 CFR 20.202, or a review option in accordance with 38 U.S.C. 5108 or 5104B, as implemented by 38 CFR 3.2500 and other applicable regulations. The election must be filed within the time allowed for filing a substantive appeal under § 19.52(b); or (3) VA issued notice of a decision prior to the effective date, and, pursuant to the Secretary's authorization to participate in a test program, the claimant elects the modernized review system by filing an appeal in accordance with 38 U.S.C. 7105, or a review option in accordance with 38 U.S.C. 5108 or 5104B. (Authority: Pub. L. 115-55; 131 Stat. 1105; 38 U.S.C. 5104B, 5104C(a); 5108; 38 U.S.C. 7105) [84 FR 177, Jan. 18, 2019] §§ 19.3-19.19 [Reserved] Subpart B—Legacy Appeals and Legacy Appeals Processing by Agency of Original Jurisdiction § 19.20 What constitutes an appeal. An appeal consists of a timely filed Notice of Disagreement submitted in accordance with the provisions of § 19.21, and either § 19.52(a) or § 20.501(a) of this chapter, as applicable and, after a Statement of the Case has been furnished, a timely filed Substantive Appeal. (Authority: 38 U.S.C. 7105 (2016)) [79 FR 57698, Sept. 25, 2014. Redesignated and amended at 84 FR 177, 178, Jan. 18, 2019] § 19.21 Notice of Disagreement. (a) Cases in which a form is provided by the agency of original jurisdiction for the purpose of initiating an appeal. (1) Format. (2) Provision of form to the claimant. (3) Presumption form was provided. (4) Specificity required by form. (5) Alternate form or other communication. (b) Cases in which no form is provided by the agency of original jurisdiction for purpose of initiating an appeal. (c) Simultaneously contested claims. (Authority: 38 U.S.C. 7105 (2016)) [79 FR 57698, Sept. 25, 2014. Redesignated and amended at 84 FR 177, 178, Jan. 18, 2019] § 19.22 Substantive Appeal. A Substantive Appeal consists of a properly completed VA Form 9, “Appeal to Board of Veterans' Appeals,” or correspondence containing the necessary information. If the Statement of the Case and any prior Supplemental Statements of the Case addressed several issues, the Substantive Appeal must either indicate that the appeal is being perfected as to all of those issues or must specifically identify the issues appealed. The Substantive Appeal should set out specific arguments relating to errors of fact or law made by the agency of original jurisdiction in reaching the determination, or determinations, being appealed. To the extent feasible, the argument should be related to specific items in the Statement of the Case and any prior Supplemental Statements of the Case. The Board will construe such arguments in a liberal manner for purposes of determining whether they raise issues on appeal, but the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination, or determinations, being appealed. The Board will not presume that an appellant agrees with any statement of fact contained in a Statement of the Case or a Supplemental Statement of the Case which is not specifically contested. Proper completion and filing of a Substantive Appeal are the last actions the appellant needs to take to perfect an appeal. (Approved by the Office of Management and Budget under control number 2900-0085) (Authority: 38 U.S.C. 7105(d)(3)-(5) (2016)) [57 FR 4109, Feb. 3, 1992, as amended at 61 FR 20450, May 7, 1996. Redesignated and amended at 84 FR 177, 178, Jan. 18, 2019] § 19.23 Applicability of provisions concerning Notice of Disagreement. (a) Appeals governed by § 19.21(a) shall be processed in accordance with § 19.24. Sections 19.26 and 19.28 shall not apply to appeals governed by § 19.21(a). (b) Appeals governed by § 19.21(b) shall be processed in accordance with §§ 19.26 and 19.28. [79 FR 57697, Sept. 25, 2014, as amended at 84 FR 178, Jan. 18, 2019] § 19.24 Action by agency of original jurisdiction on Notice of Disagreement required to be filed on a standardized form. (a) Initial action. (b) Incomplete and complete appeal forms Incomplete appeal forms. (2) Complete appeal forms. (i) Information to identify the claimant; (ii) The claim to which the form pertains; (iii) Any information necessary to identify the specific nature of the disagreement if the form so requires. For compensation claims, this criterion will be met if the form enumerates the issues or conditions for which appellate review is sought, or if it provides other information required on the form to identify the claimant and the nature of the disagreement (such as disagreement with disability rating, effective date, or denial of service connection); and (iv) The claimant's signature. (3) Timeframe to complete correct form. (i) 60 days from the date of the request; or (ii) 1 year from the date of mailing of the notice of the decision of the agency of original jurisdiction. (4) Failure to respond. (5) Form timely completed. (c) Issues under appellate review. (d) Disagreement concerning whether Notice of Disagreement has been filed. [79 FR 57697, Sept. 25, 2014, as amended at 84 FR 178, Jan. 18, 2019] § 19.25 Notification by agency of original jurisdiction of right to appeal. The claimant and his or her representative, if any, will be informed of appellate rights provided by 38 U.S.C. chapters 71 and 72, including the right to a personal hearing and the right to representation. The agency of original jurisdiction will provide this information in each notification of a determination of entitlement or nonentitlement to Department of Veterans Affairs benefits. (Authority: 38 U.S.C. 7105(a) (2016)) [57 FR 4104, Feb. 3, 1992, as amended at 84 FR 178, Jan. 18, 2019] § 19.26 Action by agency of original jurisdiction on Notice of Disagreement. (a) Initial action. (b) Unclear communication or disagreement. (1) For oral contacts, VA will contact whoever filed the communication. VA will make a written record of any oral clarification request conveyed to the claimant including the date of the adverse decision involved and the response. In any request for clarification, the AOJ will explain that if a response to this request is not received within the time period described in paragraph (c) of this section, the earlier, unclear communication will not be considered an NOD as to any adverse decision for which clarification was requested. (2) For written contacts, VA will mail a letter requesting clarification to the claimant and send a copy to his or her representative and fiduciary, if any. (c) Response required from claimant Time to respond. (i) 60 days after the date of the AOJ's clarification request; or (ii) One year after the date of mailing of notice of the adverse decision being appealed (60 days for simultaneously contested claims). (2) Failure to respond. (d) Action following clarification. (e) Representatives and fiduciaries. (The Office of Management and Budget has approved the information collection requirements in this section under control number 2900-0674) (Authority: 38 U.S.C. 501; 38 U.S.C. 7105, 7105A (2016)) [71 FR 56871, Sept. 28, 2006, as amended at 84 FR 178, Jan. 18, 2019] § 19.27 [Reserved] § 19.28 Determination that a Notice of Disagreement is inadequate protested by claimant or representative. Whether a Notice of Disagreement is adequate is an appealable issue. If the claimant or his or her representative protests an adverse determination made by the agency of original jurisdiction with respect to the adequacy of a Notice of Disagreement, the claimant will be furnished a Statement of the Case. (Authority: 38 U.S.C. 7105 (2016)) [57 FR 4104, Feb. 3, 1992, as amended at 84 FR 178, Jan. 18, 2019] § 19.29 Statement of the Case. The Statement of the Case must be complete enough to allow the appellant to present written and/or oral arguments before the Board of Veterans' Appeals. It must contain: (a) A summary of the evidence in the case relating to the issue or issues with which the appellant or representative has expressed disagreement; (b) A summary of the applicable laws and regulations, with appropriate citations, and a discussion of how such laws and regulations affect the determination; and (c) The determination of the agency of original jurisdiction on each issue and the reasons for each such determination with respect to which disagreement has been expressed. (Authority: 38 U.S.C. 7105(d)(1) (2016)) [57 FR 4104, Feb. 3, 1992, as amended at 84 FR 178, Jan. 18, 2019] § 19.30 Furnishing the Statement of the Case and instructions for filing a Substantive Appeal. (a) To whom the Statement of the Case is furnished. (b) Information furnished with the Statement of the Case. (Authority: Sec. 2, Pub. L. 115-55; 131 Stat. 1105; 38 U.S.C. 7105 (2016)) [57 FR 4104, Feb. 3, 1992, as amended at 61 FR 20449, May 7, 1996; 84 FR 178, Jan. 18, 2019; 84 FR 34788, July 19, 2019] § 19.31 Supplemental statement of the case. (a) Purpose and limitations. (b) When furnished. (1) The agency of original jurisdiction receives additional pertinent evidence after a Statement of the Case or the most recent Supplemental Statement of the Case has been issued and before the appeal is certified to the Board of Veterans' Appeals and the appellate record is transferred to the Board; (2) A material defect in the Statement of the Case or a prior Supplemental statement of the Case is discovered; or (3) For any other reason the Statement of the Case or a prior Supplemental Statement of the Case is inadequate. (c) Pursuant to remand from the Board. (1) The only purpose of the remand is to assemble records previously considered by the agency of original jurisdiction and properly discussed in a prior Statement of the Case or Supplemental Statement of the Case; or (2) The Board specifies in the remand that a Supplemental Statement of the Case is not required. (d) Exception. (Authority: 38 U.S.C. 5902, 5903, 5904; 38 U.S.C. 7105(d) (2016)) [67 FR 3104, Jan. 23, 2002, as amended at 73 FR 29879, May 22, 2008; 84 FR 178, Jan. 18, 2019] § 19.32 Closing of appeal for failure to respond to Statement of the Case. The agency of original jurisdiction may close the appeal without notice to an appellant or his or her representative for failure to respond to a Statement of the Case within the period allowed. However, if a Substantive Appeal is subsequently received within the 1-year appeal period (60-day appeal period for simultaneously contested claims), the appeal will be considered to be reactivated. (Authority: 38 U.S.C. 7105(d)(3) (2016)) [57 FR 4104, Feb. 3, 1992, as amended at 84 FR 178, Jan. 18, 2019] § 19.33 [Reserved] § 19.34 Determination that Notice of Disagreement or Substantive Appeal was not timely filed protested by claimant or representative. Whether a Notice of Disagreement or Substantive Appeal has been filed on time is an appealable issue. If the claimant or his or her representative protests an adverse determination made by the agency of original jurisdiction with respect to timely filing of the Notice of Disagreement or Substantive Appeal, the claimant will be furnished a Statement of the Case. (Authority: 38 U.S.C. 7105 (2016)) [57 FR 4104, Feb. 3, 1992, as amended at 84 FR 178, Jan. 18, 2019] § 19.35 Certification of appeals. Following receipt of a timely Substantive Appeal, the agency of original jurisdiction will certify the case to the Board of Veterans' Appeals. The certification is used for administrative purposes and does not serve to either confer or deprive the Board of Veterans' Appeals of jurisdiction over an issue. (Authority: 38 U.S.C. 7105 (2016)) [57 FR 4104, Feb. 3, 1992, as amended at 61 FR 20449, May 7, 1996; 66 FR 53339, Oct. 22, 2001; 84 FR 178, Jan. 18, 2019] § 19.36 Notification of certification of appeal and transfer of appellate record. When an appeal is certified to the Board of Veterans' Appeals for appellate review and the appellate record is transferred to the Board, the appellant and his or her representative, if any, will be notified in writing of the certification and transfer and of the time limit for requesting a change in representation, for requesting a personal hearing, and for submitting additional evidence described in Rule 1305 (§ 20.1305 of this chapter). Provisions in this section for submitting additional evidence and references to § 20.1305 do not apply in proceedings before the General Counsel conducted under part 14 of this chapter to suspend or cancel accreditation or to review fee agreements and expenses for reasonableness. (Authority: 38 U.S.C. 5902, 5903; 38 U.S.C. 5904, 7105 (2016)) [57 FR 4104, Feb. 3, 1992, as amended at 73 FR 29879, May 22, 2008; 84 FR 178, Jan. 18, 2019] § 19.37 Consideration of additional evidence received by the agency of original jurisdiction after an appeal has been initiated. (a) Evidence received prior to transfer of records to Board of Veterans' Appeals. (b) Evidence received after transfer of records to the Board of Veterans' Appeals. (c) The provisions of this section do not apply in proceedings before the General Counsel conducted under part 14 of this chapter to cancel accreditation or to review fee agreements and expenses for reasonableness. (Authority: 38 U.S.C. 5902, 5903, 5904; 38 U.S.C. 7105(d)(1) (2016)) [57 FR 4104, Feb. 3, 1992, as amended at 73 FR 29879, May 22, 2008; 84 FR 178, Jan. 18, 2019] § 19.38 Action by agency of original jurisdiction when remand received. When a case is remanded by the Board of Veterans' Appeals, the agency of original jurisdiction will complete the additional development of the evidence or procedural development required. Following completion of the development, the case will be reviewed to determine whether the additional development, together with the evidence which was previously of record, supports the allowance of all benefits sought on appeal. If so, the appellant and his or her representative, if any, will be promptly informed. If any benefits sought on appeal remain denied following this review, the agency of original jurisdiction will issue a Supplemental Statement of the Case concerning the additional development pertaining to those issues in accordance with the provisions of § 19.31 of this part. Following the 30-day period allowed for a response to the Supplemental Statement of the Case pursuant to § 19.52(c), the case will be returned to the Board for further appellate processing unless the appeal is withdrawn or review of the response to the Supplemental Statement of the Case results in the allowance of all benefits sought on appeal. Remanded cases will not be closed for failure to respond to the Supplemental Statement of the Case. (Authority: 38 U.S.C. 7105(d)(1) (2016)) [57 FR 4104, Feb. 3, 1992, as amended at 69 FR 53808, Sept. 3, 2004; 73 FR 40748, July 16, 2008; 84 FR 179, Jan. 18, 2019] §§ 19.39-19.49 [Reserved] Subpart C—Claimant Action in a Legacy Appeal § 19.50 Who can file an appeal. (a) Persons authorized. (b) Claimant rated incompetent by Department of Veterans Affairs or under disability and unable to file. (c) Claimant under disability and able to file. (Authority: 38 U.S.C. 7105(b)(2) (2016)) [57 FR 4109, Feb. 3, 1992. Redesignated and amended at 84 FR 177, 179, Jan. 18, 2019] § 19.51 Place of filing Notice of Disagreement and Substantive Appeal. The Notice of Disagreement and Substantive Appeal must be filed with the Department of Veterans Affairs office from which the claimant received notice of the determination being appealed unless notice has been received that the applicable Department of Veterans Affairs records have been transferred to another Department of Veterans Affairs office. In that case, the Notice of Disagreement or Substantive Appeal must be filed with the Department of Veterans Affairs office which has assumed jurisdiction over the applicable records. (Authority: 38 U.S.C. 7105(b)(1), (d)(3) (2016)) [57 FR 4109, Feb. 3, 1992. Redesignated at 84 FR 177, Jan. 18, 2019, as amended at 84 FR 34788, July 19, 2019] § 19.52 Time limit for filing Notice of Disagreement, Substantive Appeal, and response to Supplemental Statement of the Case. (a) Notice of Disagreement. (Authority: 38 U.S.C. 7105(b)(1) (2016)) (b) Substantive Appeal General. (2) Special rule in certain cases where additional evidence is submitted. (Authority: 38 U.S.C. 7105(b)(1), (d)(3) (2016)) (c) Response to Supplemental Statement of the Case. (Authority: 38 U.S.C. 7105(d)(3) (2016)) [57 FR 4109, Feb. 3, 1992, as amended at 66 FR 50318, Oct. 3, 2001; 68 FR 64806, Nov. 17, 2003; 73 FR 40748, July 16, 2008. Redesignated and amended at 84 FR 177, 179, Jan. 18, 2019] § 19.53 Extension of time for filing Substantive Appeal and response to Supplemental Statement of the Case. An extension of the 60-day period for filing a Substantive Appeal, or the 30-day period for responding to a Supplemental Statement of the Case, may be granted for good cause. A request for such an extension must be in writing and must be made prior to expiration of the time limit for filing the Substantive Appeal or the response to the Supplemental Statement of the Case. The request for extension must be filed with the Department of Veterans Affairs office from which the claimant received notice of the determination being appealed, unless notice has been received that the applicable records have been transferred to another Department of Veterans Affairs office. A denial of a request for extension may be appealed to the Board. (Authority: 38 U.S.C. 7105(d)(3) (2016)) [57 FR 4109, Feb. 3, 1992, as amended at 73 FR 40748, July 16, 2008. Redesignated and amended at 84 FR 177, 179, Jan. 18, 2019] § 19.54 Filing additional evidence does not extend time limit for appeal. Except as provided in § 19.52(b), the filing of additional evidence after receipt of notice of an adverse determination does not extend the time limit for initiating or completing an appeal from that determination. (Authority: 38 U.S.C. 7105 (2016)) [57 FR 4109, Feb. 3, 1992, as amended at 66 FR 50318, Oct. 3, 2001. Redesignated by correction at 84 FR 4336, Feb. 15, 2019, as amended at 84 FR 179, Jan. 18, 2019] § 19.55 Withdrawal of Appeal. (a) When and by whom filed. (b) Filing Content. (2) Where to file. (3) When effective. (c) Effect of filing. (Authority 38 U.S.C. 7105(b), (d) (2016)) [68 FR 13236, Mar. 19, 2003, as amended at 81 FR 32649, May 24, 2016. Redesignated and amended at 84 FR 177, 179, Jan. 18, 2019] §§ 19.56-19.74 [Reserved] Subpart D [Reserved] Subpart E—Simultaneously Contested Claims § 19.100 Notification of right to appeal in simultaneously contested claims. All interested parties will be specifically notified of the action taken by the agency of original jurisdiction in a simultaneously contested claim and of the right and time limit for initiation of an appeal, as well as hearing and representation rights. (Authority: 38 U.S.C. 7105A(a) (2016)) [57 FR 4104, Feb. 3, 1992, as amended at 84 FR 179, Jan. 18, 2019] § 19.101 Notice to contesting parties on receipt of Notice of Disagreement in simultaneously contested claims. Upon the filing of a Notice of Disagreement in a simultaneously contested claim, all interested parties and their representatives will be furnished a copy of the Statement of the Case. The Statement of the Case so furnished will contain only information which directly affects the payment or potential payment of the benefit(s) which is (are) the subject of that contested claim. The interested parties who filed Notices of Disagreement will be duly notified of the right to file, and the time limit within which to file, a Substantive Appeal and will be furnished with VA Form 9, “Appeal to Board of Veterans' Appeals.” (Authority: 38 U.S.C. 7105A(b) (2016)) [57 FR 4104, Feb. 3, 1992, as amended at 61 FR 20449, May 7, 1996; 84 FR 179, Jan. 18, 2019] § 19.102 Notice of appeal to other contesting parties in simultaneously contested claims. When a Substantive Appeal is filed in a simultaneously contested claim, the content of the Substantive Appeal will be furnished to the other contesting parties to the extent that it contains information which could directly affect the payment or potential payment of the benefit which is the subject of the contested claim. (Authority: 38 U.S.C. 7105A(b) (2016)) [57 FR 4104, Feb. 3, 1992, as amended at 84 FR 179, Jan. 18, 2019] §§ 19.103-19.199 [Reserved]