PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE Authority: 38 U.S.C. 501(a) and as noted in specific sections. Source: 57 FR 4109, Feb. 3, 1992, unless otherwise noted. Subpart A—General § 20.1 Rule 1. Purpose and construction of Rules of Practice. (a) Purpose. (Authority: 38 U.S.C. 501(a), 7102, 7104) (b) Construction. (Authority: 38 U.S.C. 501(a), 5107, 7104) [57 FR 4109, Feb. 3, 1992, as amended at 84 FR 179, Jan. 18, 2019] § 20.2 Rule 2. Procedure in absence of specific Rule of Practice. Where in any instance there is no applicable rule or procedure, the Chairman may prescribe a procedure which is consistent with the provisions of title 38, United States Code, and these rules. (Authority: 38 U.S.C. 501(a), 512(a), 7102, 7104) § 20.3 Rule 3. Definitions. As used in these Rules: (a) Agency of original jurisdiction (b) Agent (c) Appellant (d) Attorney-at-law (e) Benefit (f) Claim (g) Claimant (h) Hearing on appeal Board hearing (i) Motion (j) Past-due benefits (k) Presiding Member (l) Simultaneously contested claim (m) State (Authority: 38 U.S.C. 501(a)) [57 FR 4109, Feb. 3, 1992, as amended at 61 FR 20449, May 7, 1996; 67 FR 36104, May 23, 2002; 69 FR 53808, Sept. 3, 2004; 79 FR 57698, Sept. 25, 2014; 84 FR 179, Jan. 18, 2019] § 20.4 Rule 4. Appeal systems definitions and applicability provisions. (a) Appeal In general. (2) Appellant's election for review of a legacy claim or appeal in the modernized review system. (b) Applicability of parts 19 and 20 Appeals. (2) Legacy claims and appeals. (3) Both appeals systems. (Authority: Sec. 2, Pub. L. 115-55; 131 Stat. 1105) [84 FR 180, Jan. 18, 2019] § 20.5 Rule 5. Right to representation. An appellant will be accorded full right to representation in all stages of an appeal by a recognized organization, attorney, agent, or other authorized person. (Authority: 38 U.S.C. 5901-5905, 7105(a)) [57 FR 4104, Feb. 3, 1992. Redesignated and amended at 84 FR 184, Jan. 18, 2019] § 20.6 Rule 6. Withdrawal of services by a representative. (a)(1) Applicability. (2) Procedures. e.g., (b) Withdrawal of services prior to certification of a legacy appeal. (Approved by the Office of Management and Budget under control number 2900-0085) (Authority: 38 U.S.C. 5901-5904, 7105(a)) [84 FR 184, Jan. 18, 2019, as amended at 84 FR 4337, Feb. 15, 2019] §§ 20.7-20.99 [Reserved] Subpart B—The Board § 20.100 Rule 100. Establishment of the Board. The Board of Veterans' Appeals is established by authority of, and functions pursuant to, title 38, United States Code, chapter 71. [57 FR 4104, Feb. 3, 1992. Redesignated at 84 FR 177, Jan. 18, 2019, as amended at 84 FR 180, Jan. 18, 2019] § 20.101 Rule 101. Composition of the Board; titles. (a) The Board consists of a Chairman, Vice Chairman, Deputy Vice Chairmen, Members and professional, administrative, clerical and stenographic personnel. Deputy Vice Chairmen are Members of the Board who are appointed to that office by the Secretary upon the recommendation of the Chairman. (b) A Member of the Board (other than the Chairman) may also be known as a Veterans Law Judge. An individual designated as an acting member pursuant to 38 U.S.C. 7101(c)(1) may also be known as an acting Veterans Law Judge. (Authority: 38 U.S.C. 501(a), 512, 7101(a)) [68 FR 6625, Feb. 10, 2003. Redesignated at 84 FR 177, Jan. 18, 2019, as amended at 84 FR 4336, Feb. 15, 2019] § 20.102 Rule 102. Name, business hours, and mailing address of the Board. (a) Name. (b) Business hours. (c) Mailing address. (Authority: 38 U.S.C. 7101(a)) [57 FR 4109, Feb. 3, 1992, as amended at 81 FR 32649, May 24, 2016. Redesignated and amended at 84 FR 177, 180, Jan. 18, 2019] § 20.103 Rule 103. Principal functions of the Board. The principal functions of the Board are to make determinations of appellate jurisdiction, consider all applications on appeal properly before it, conduct hearings on appeal, evaluate the evidence of record, and enter decisions in writing on the questions presented on appeal. (Authority: 38 U.S.C. 7102, 7104, 7107) [57 FR 4104, Feb. 3, 1992. Redesignated at 84 FR 177, Jan. 19, 2019, as amended at 84 FR 4337, Feb. 15, 2019] § 20.104 Rule 104. Jurisdiction of the Board. (a) General. (1) Entitlement to, and benefits resulting from, service-connected disability or death (38 U.S.C. chapter 11). (2) Dependency and indemnity compensation for service-connected death, including benefits in certain cases of inservice or service-connected deaths (38 U.S.C. 1312) and certification and entitlement to death gratuity (38 U.S.C. 1323). (3) Benefits for survivors of certain veterans rated totally disabled at time of death (38 U.S.C. 1318). (4) Entitlement to nonservice-connected disability pension, service pension and survivors pension (38 U.S.C. chapter 15). (5) All-Volunteer Force Educational Assistance Program (38 U.S.C. chapter 30). (6) Training and Rehabilitation for Veterans with Service-Connected Disabilities (38 U.S.C. chapter 31). (7) Post-Vietnam Era Veterans' Educational Assistance (38 U.S.C. chapter 32). (8) Veterans' Educational Assistance (38 U.S.C. chapter 34). (9) Survivors' and Dependents' Educational Assistance (38 U.S.C. chapter 35). (10) Veterans' Job Training (Pub. L. 98-77, as amended; 38 CFR 21.4600 et seq. (11) Educational Assistance for Members of the Selected Reserve (10 U.S.C. chapter 106). (12) Educational Assistance Test Program (10 U.S.C. chapter 107; 38 CFR 21.5701 et seq. (13) Educational Assistance Pilot Program (10 U.S.C. chapter 107; 38 CFR 21.5290 et seq. (14) Matters arising under National Service Life Insurance and United States Government Life Insurance (38 U.S.C. chapter 19). (15) Payment or reimbursement for unauthorized medical expenses (38 U.S.C. 1728). (16) Burial benefits and burial in National Cemeteries (38 U.S.C. chapters 23 and 24). (17) Benefits for persons disabled by medical treatment or vocational rehabilitation (38 U.S.C. 1151). (18) Basic eligibility for home, condominium and mobile home loans as well as waiver of payment of loan guaranty indebtedness (38 U.S.C. chapter 37, 38 U.S.C. 5302). (19) Waiver of recovery of overpayments (38 U.S.C. 5302). (20) Forfeiture of rights, claims or benefits for fraud, treason, or subversive activities (38 U.S.C. 6102-6105). (21) Character of discharge (38 U.S.C. 5303). (22) Determinations as to duty status (38 U.S.C. 101(21)-(24)). (23) Determinations as to marital status (38 U.S.C. 101(3), 103). (24) Determination of dependency status as parent or child (38 U.S.C. 101(4), (5)). (25) Validity of claims and effective dates of benefits (38 U.S.C. chapter 51). (26) Apportionment of benefits (38 U.S.C. 5307). (27) Payment of benefits while a veteran is hospitalized and questions regarding an estate of an incompetent institutionalized veteran (38 U.S.C. 5503). (28) Benefits for surviving spouses and children of deceased veterans under Public Law 97-377, section 156 (38 CFR 3.812(d)). (29) Eligibility for automobile and automobile adaptive equipment assistance (38 U.S.C. chapter 39). (b) Appellate jurisdiction of determinations of the Veterans Health Administration. (c) Authority to determine jurisdiction. (d)(1) Appeals as to jurisdiction in legacy claims and appeals. (Authority: Sec. 2, Pub. L. 115-55; 131 Stat. 1105) (2) Application of 20.904 and 20.1305. (Authority: 38 U.S.C. 511(a), 7104, 7105, 7108) [57 FR 4109, Feb. 3, 1992, as amended at 66 FR 53339, Oct. 22, 2001. Redesignated and amended at 84 FR 177, 180, Jan. 18, 2019; 84 FR 34788, July 19, 2019; 91 FR 2713, Jan. 22, 2026] § 20.105 Rule 105. Criteria governing disposition of appeals. In the consideration of appeals and in its decisions, the Board is bound by applicable statutes, regulations of the Department of Veterans Affairs, and precedent opinions of the General Counsel of the Department of Veterans Affairs. The Board is not bound by Department manuals, circulars, or similar administrative issues. [84 FR 4337, Feb. 15, 2019] § 20.106 Rule 106. Assignment of proceedings. (a) Assignment. (Authority: 38 U.S.C. 7102) (b) Inability to serve. (Authority: 38 U.S.C. 7101(a), 7102) [61 FR 20448, May 7, 1996. Redesignated at 84 FR 177, Jan. 18, 2019, as amended at 84 FR 4337, Feb. 15, 2019] § 20.107 Rule 107. Disqualification of Members. (a) General. (Authority: 38 U.S.C. 7102, 7104) (b) Disqualification of Members by the Chairman. (Authority: 38 U.S.C. 7102, 7104, 7106) [57 FR 4104, Feb. 3, 1992, as amended at 61 FR 20449, May 7, 1996. Redesignated at 84 FR 177, Jan. 18, 2019, as amended at 84 FR 4337, Feb. 15, 2019] § 20.108 Rule 108. Delegation of authority to Chairman and Vice Chairman, Board of Veterans' Appeals. The Chairman and/or Vice Chairman have authority delegated by the Secretary of Veterans Affairs to: (a) Approve the assumption of appellate jurisdiction of an adjudicative determination which has not become final in order to grant a benefit, and (b) Order VA Central Office investigations of matters before the Board. (Authority: 38 U.S.C. 303, 512(a)) [57 FR 4104, Feb. 3, 1992. Redesignated at 84 FR 177, Jan. 18, 2019, as amended at 84 FR 4337, Feb. 15, 2019] § 20.109 Rule 109. Delegation of authority to Vice Chairman, Deputy Vice Chairmen, or Members of the Board. (a) The authority exercised by the Chairman of the Board of Veterans' Appeals described in Rules 106(b) and 107(b) (§§ 20.106(b) and 20.107(b)) may also be exercised by the Vice Chairman of the Board. (b) The authority exercised by the Chairman of the Board of Veterans' Appeals described in Rules 1004 and 1002(c) (§§ 20.1004 and 20.1002(c)) may also be exercised by the Vice Chairman of the Board and by Deputy Vice Chairmen of the Board. (c) The authority exercised by the Chairman of the Board of Veterans' Appeals described in Rule 2 (§ 20.2), may also be exercised by the Vice Chairman of the Board; by Deputy Vice Chairmen of the Board; and, in connection with a proceeding or motion assigned to them by the Chairman, by a Member or Members of the Board. (Authority: 38 U.S.C. 512(a), 7102, 7104) [84 FR 4337, Feb. 15, 2019] § 20.110 Rule 110. Computation of time limit for filing. (a) Acceptance of postmark date. (b) Computation of time limit. (Authority: 38 U.S.C. 7105) [57 FR 4109, Feb. 3, 1992. Redesignated and amended at 84 FR 182, Jan. 18, 2019] § 20.111 Rule 111. Legal holidays. For the purpose of Rule 110 (§ 20.110), the legal holidays, in addition to any other day appointed as a holiday by the President or the Congress of the United States, are as follows: New Year's Day—January 1; Inauguration Day—January 20 of every fourth year or, if the 20th falls on a Sunday, the next succeeding day selected for public observance of the inauguration; Birthday of Martin Luther King, Jr.—Third Monday in January; Washington's Birthday—Third Monday in February; Memorial Day—Last Monday in May; Independence Day—July 4; Labor Day—First Monday in September; Columbus Day—Second Monday in October; Veterans Day—November 11; Thanksgiving Day—Fourth Thursday in November; and Christmas Day—December 25. When a holiday occurs on a Saturday, the Friday immediately before is the legal public holiday. When a holiday occurs on a Sunday, the Monday immediately after is the legal public holiday. (Authority: 5 U.S.C. 6103) [57 FR 4109, Feb. 3, 1992. Redesignated and amended at 84 FR 182, Jan. 18, 2019] §§ 20.112-20.199 [Reserved] Subpart C—Commencement and Filing of Appeals Source: 84 FR 180, Jan. 18, 2019, unless otherwise noted. § 20.200 Rule 200. 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, pursuant to 38 U.S.C. 5104, 5104B, and 5108. (Authority: 38 U.S.C. 7105(a)) § 20.201 Rule 201. What constitutes an appeal. An appeal of a decision by the agency of original jurisdiction consists of a Notice of Disagreement submitted to the Board in accordance with the provisions of §§ 20.202-20.204. (Authority: 38 U.S.C. 7105) § 20.202 Rule 202. Notice of Disagreement. (a) In general. (b) Review options. (1) Direct review by the Board of the record before the agency of original jurisdiction at the time of its decision, without submission of additional evidence or a Board hearing; (2) A Board hearing, to include an opportunity to submit additional evidence at the hearing and within 90 days following the hearing; or (3) An opportunity to submit additional evidence without a Board hearing with the Notice of Disagreement and within 90 days following receipt of the Notice of Disagreement. (c)(1) The information indicated by the claimant in paragraph (b) of this section determines the evidentiary record before the Board as described in subpart D of this part, and the docket on which the appeal will be placed, as described in Rule 800 (§ 20.800). Except as otherwise provided in paragraph (2) of this section, the Board will not consider evidence as described in Rules 302 or 303 (§§ 20.302 and 20.303) unless the claimant requests a Board hearing or an opportunity to submit additional evidence on the Notice of Disagreement. (2) A claimant may modify the information identified in the Notice of Disagreement for the purpose of selecting a different evidentiary record option as described in paragraph (b) of this section. Requests to modify a Notice of Disagreement must be made by completing a new Notice of Disagreement on a form prescribed by the Secretary, and must be received at the Board within one year from the date that the agency of original jurisdiction mails notice of the decision on appeal, or within 60 days of the date that the Board receives the Notice of Disagreement, whichever is later. Requests to modify a Notice of Disagreement will not be granted if the appellant has submitted evidence or testimony as described in §§ 20.302 and 20.303. (d) Standard form required. (e) Alternate form or other communication. (f) Unclear Notice of Disagreement. (g) Response required from claimant Time to respond. (i) 60 days after the date of the Board'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. (h) Action following clarification. (i) Representatives and fiduciaries. (Authority: 38 U.S.C. 7105) (Approved by the Office of Management and Budget under control number 2900-0674) § 20.203 Rule 203. Place and time of filing of Notice of Disagreement. (a) Place of filing. (b) Time of filing. (c) Extension of time of filing. (Authority: 38 U.S.C. 7105) § 20.204 Rule 204. Who can file a Notice of Disagreement. (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)(A)) § 20.205 Rule 205. Withdrawal of appeal. (a) When and by whom filed. (b) Filing Content. e.g., (2) Where to file. (3) When effective. (c) Effect of filing. (Authority: 38 U.S.C. 7105) §§ 20.206-20.299 [Reserved] Subpart D—Evidentiary Record § 20.300 Rule 300. General. (a) Decisions of the Board will be based on a de novo review of the evidence of record at the time of the agency of original jurisdiction decision on the issue or issues on appeal, and any additional evidence or testimony submitted pursuant to this subpart, as provided in § 20.801. (b) Waiver of appellant's right to submit evidence. (Authority: 38 U.S.C. 7104) [84 FR 182, Jan. 18, 2019] § 20.301 Rule 301. Appeals with no request for a Board hearing and no additional evidence. For appeals in which the appellant requested, on the Notice of Disagreement, direct review by the Board without submission of additional evidence and without a Board hearing, the Board's decision will be based on a review of the evidence of record at the time of the agency of original jurisdiction decision on the issue or issues on appeal. (Authority: 38 U.S.C. 7105, 7107, 7113(a)) [84 FR 182, Jan. 18, 2019] § 20.302 Rule 302. Appeals with a request for a Board hearing. (a) Except as described in paragraphs (b) and (c) of this section, for appeals in which the appellant requested, on the Notice of Disagreement, a Board hearing, the Board's decision will be based on a review of the following: (1) Evidence of record at the time of the agency of original jurisdiction's decision on the issue or issues on appeal; (2) Evidence submitted by the appellant or his or her representative at the hearing, to include testimony provided at the hearing; and (3) Evidence submitted by the appellant or his or her representative within 90 days following the hearing. (b) In the event that the hearing request is withdrawn pursuant to § 20.704(e), the Board's decision will be based on a review of evidence described in paragraph (a)(1) of this section, and evidence submitted by the appellant or his or her representative within 90 days following receipt of the withdrawal. (c) In the event that the appellant does not appear for a scheduled hearing, and the hearing is not rescheduled subject to § 20.704(d), the Board's decision will be based on a review of evidence described in paragraph (a)(1) of this section, and evidence submitted by the appellant or his or her representative within 90 days following the date of the scheduled hearing. (Authority: 38 U.S.C. 7105, 7107, 7113(b)) [84 FR 182, Jan. 18, 2019] § 20.303 Rule 303. Appeals with no request for a Board hearing, but with a request for submission of additional evidence. For appeals in which the appellant requested, on the Notice of Disagreement, an opportunity to submit additional evidence without a Board hearing, the Board's decision will be based on a review of the following: (a) Evidence of record at the time of the agency of original jurisdiction's decision on the issue or issues on appeal; and (b) Evidence submitted by the appellant or his or her representative: (1) With the Notice of Disagreement or within 90 days following receipt of the Notice of Disagreement; or, (2) If the appellant did not request an opportunity to submit additional evidence on the Notice of Disagreement, but subsequently requested to submit additional evidence pursuant to Rule 202 (§ 20.202(c)(2)(ii)), within 90 days following VA's notice that the appeal has been moved to the docket described in § 20.800(a)(ii). (Authority: 38 U.S.C. 7105, 7107, 7113(c)) [84 FR 182, Jan. 18, 2019; 84 FR 34788, July 19, 2019] §§ 20.304-20.399 [Reserved] Subpart E—Appeal in Simultaneously Contested Claims Source: 84 FR 182, Jan. 18, 2019, unless otherwise noted. § 20.400 Rule 400. Notification of the right to appeal in a simultaneously contested claim. 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 submitting a Notice of Disagreement to the Board, as well as hearing and representation rights. § 20.401 Rule 401. Who can file an appeal in simultaneously contested claims. In simultaneously contested claims, any claimant or representative of a claimant may file a Notice of Disagreement within the time limits set out in Rule 402 (§ 20.402). (Authority: 38 U.S.C. 7105(b)(2), 7105A) § 20.402 Rule 402. Time limits for filing Notice of Disagreement in simultaneously contested claims. In simultaneously contested claims, the Notice of Disagreement from the person adversely affected must be filed within 60 days from the date of mailing of the notification of the determination to him or her; otherwise, that determination will become final. The date of mailing of the letter of notification will be presumed to be the same as the date of that letter for purposes of determining whether a Notice of Disagreement has been timely filed. (Authority: 38 U.S.C. 7105A) § 20.403 Rule 403. 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 substance of the Notice of Disagreement. The notice will inform the contesting party or parties of what type of review the appellant who initially filed a Notice of Disagreement selected under § 20.202(b), including whether a hearing was requested. (Authority: 38 U.S.C. 7105A) § 20.404 Rule 404. Time limit for response to appeal by another contesting party in a simultaneously contested claim. A party to a simultaneously contested claim may file a brief, argument, or request for a different type of review under § 20.202(b) in answer to a Notice of Disagreement filed by another contesting party. Any such brief, argument, or request must be filed with the Board within 30 days from the date the content of the Notice of Disagreement is furnished as provided in § 20.403. Such content will be presumed to have been furnished on the date of the letter that accompanies the content. (Authority: 38 U.S.C. 7105A(b)(1)) § 20.405 Rule 405. Docketing of simultaneously contested claims at the Board. After expiration of the 30-day period for response in § 20.404, the Board will place all parties of the simultaneously contested claim on the docket for the type of review requested under § 20.202(b). In the event the parties request different types of review, if any party requests a hearing the appeal will be placed on the docket described in § 20.800(a)(iii), and VA will notify the parties that a hearing will be scheduled. If no party requested a hearing, but any party requested the opportunity to submit additional evidence, the appeal will be placed on the docket described in § 20.800(a)(ii), and the parties will be notified of their opportunity to submit additional evidence within 90 days of the date of such notice. (Authority: 38 U.S.C. 7105A(b)(1)) [84 FR 182, Jan. 18, 2019; 84 FR 34788, July 19, 2019] § 20.406 Rule 406. Notices sent to last addresses of record in simultaneously contested claims. Notices in simultaneously contested claims will be forwarded to the last address of record of the parties concerned and such action will constitute sufficient evidence of notice. § 20.407 Rule 407. Favorable findings are not binding in contested claims. Where a claim is contested, findings favorable to either party, as described in Rule 801 (§ 20.801), are no longer binding on all agency of original jurisdiction and Board of Veterans' Appeals adjudicators during the pendency of the contested appeal. (Authority: 38 U.S.C. 7105A(b)(2)) [84 FR 182, Jan. 18, 2019; 84 FR 34788, July 19, 2019] §§ 20.408-20.499 [Reserved] Subpart F—Legacy Appeal in Simultaneously Contested Claims § 20.500 Rule 500. Applicability. The provisions of this subpart apply to legacy appeals, as defined in § 19.2 of this chapter. [84 FR 183, Jan. 18, 2019] § 20.501 Rule 501. Who can file an appeal in simultaneously contested claims. In a simultaneously contested claim, any claimant or representative of a claimant may file a Notice of Disagreement or Substantive Appeal within the time limits set out in Rule 502 (§ 20.502). (Authority: 38 U.S.C. 7105(b)(2), 7105A (2016)) [57 FR 4109, Feb. 3, 1992. Redesignated and amended at 84 FR 183, Jan. 18, 2019] § 20.502 Rule 502. Time limits for filing Notice of Disagreement, Substantive Appeal, and response to Supplemental Statement of the Case in simultaneously contested claims. (a) Notice of Disagreement. (Authority: 38 U.S.C. 7105A(a) (2016)) (b) Substantive Appeal. (Authority: 38 U.S.C. 7105A(b) (2016)) (c) Supplemental Statement of the Case. (Authority: 38 U.S.C. 7105(d)(3), 7105A(b) (2016)) [57 FR 4109, Feb. 3, 1992, as amended at 68 FR 64806, Nov. 17, 2003. Redesignated and amended at 84 FR 183, Jan. 18, 2019; 84 FR 34788, July 19, 2019.] § 20.503 Rule 503. Time limit for response to appeal by another contesting party in a simultaneously contested claim. A party to a simultaneously contested claim may file a brief or argument in answer to a Substantive Appeal filed by another contesting party. Any such brief or argument must be filed with the agency of original jurisdiction within 30 days from the date the content of the Substantive Appeal is furnished as provided in § 19.102 of this chapter. Such content will be presumed to have been furnished on the date of the letter that accompanies the content. (Authority: 38 U.S.C. 7105A(b) (2016)) [66 FR 60153, Dec. 3, 2001. Redesignated and amended at 84 FR 183, Jan. 18, 2019] § 20.504 Rule 504. Extension of time for filing a Substantive Appeal in simultaneously contested claims. An extension of the 30-day period to file a Substantive Appeal in simultaneously contested claims may be granted if good cause is shown. In granting an extension, consideration will be given to the interests of the other parties involved. 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. (Authority: 38 U.S.C. 7105A(b) (2016)) [57 FR 4109, Feb. 3, 1992. Redesignated and amended at 84 FR 183, Jan. 18, 2019] § 20.505 Rule 505. Notices sent to last addresses of record in simultaneously contested claims. Notices in simultaneously contested claims will be forwarded to the last address of record of the parties concerned and such action will constitute sufficient evidence of notice. (Authority: 38 U.S.C. 7105A(b) (2016)) [57 FR 4109, Feb. 3, 1992. Redesignated and amended at 84 FR 183, Jan. 18, 2019] §§ 20.506-20.599 [Reserved] Subpart G—Legacy Hearings on Appeal § 20.600 Rule 600. Applicability. (a) The provisions in this subpart apply to Board hearings conducted in legacy appeals, as defined in § 19.2 of this chapter. (b) Except as otherwise provided, Rules 700, 701, 704, 705, and 707-715 (§§ 20.700, 20.701, 20.704, 20.705, and 20.707-20.715) are also applicable to Board hearings conducted in legacy appeals. [84 FR 184, Jan. 18, 2019] § 20.601 Rule 601. Methods by which hearings in legacy appeals are conducted; scheduling and notice provisions for such hearings. (a) Methods by which hearings in legacy appeals are conducted. (1) In person at the Board's principal location in Washington, DC; (2) By electronic hearing, through voice transmission or through picture and voice transmission, with the appellant appearing at a Department of Veterans Affairs facility or appropriate Federal facility; or (3) At a Department of Veterans Affairs facility having adequate physical resources and personnel for the support of such hearings. (b) Electronic hearings. (c) Provisions for scheduling and providing notice of hearings in legacy appeals. (1) The procedures for scheduling and providing notice of Board hearings in legacy appeals conducted by the methods described in paragraphs (a)(1) and (a)(2) of this section are contained in Rule 704 (§ 20.704). (2) The procedures for scheduling and providing notice of Board hearings in legacy appeals conducted at a Department of Veterans Affairs facility having adequate physical resources and personnel for the support of such hearings under (a)(3) are contained in Rule 603 (§ 20.603). (Authority: 38 U.S.C. 7107; Sec. 102, Pub. L. 114-315; 130 Stat. 1536) [84 FR 186, Jan. 18, 2019] § 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. (a) How to request a hearing. (b) Board's determination of method of hearing. (c) Notification of method of hearing. (d) How to request a change in method of hearing. (e) Notification of scheduling of hearing. (Authority: Sec. 102, Pub. L. 114-315; 130 Stat. 1536) [84 FR 186, Jan. 18, 2019] § 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. (a) General. (b) Notification of hearing. (c) Requests for changes in hearing dates. (d) Failure to appear for a scheduled hearing. (e) Withdrawal of hearing requests. (f) Advancement of the case on the hearing docket. (Approved by the Office of Management and Budget under control number 2900-0085) (Authority: 38 U.S.C. 7107; Sec. 102, Pub. 114-315; 130 Stat. 1536) [84 FR 184, Jan. 18, 2019] § 20.604 Rule 604. Designation of Member or Members to conduct the hearing in a legacy appeal. The Member or panel to whom a proceeding is assigned under Rule 106 (§ 20.106) shall conduct any hearing before the Board in connection with that proceeding. Where a proceeding has been assigned to a panel, the Chairman, or the Chairman's designee, shall designate one of the Members as the presiding Member. The Member or Members who conduct the hearing shall participate in making the final determination of the claim, subject to the exception in Rule 1004 (§ 20.1004) (relating to reconsideration of a decision). (Authority: 38 U.S.C. 7102; 38 U.S.C. 7101 (2016)) [61 FR 20451, May 7, 1996. Redesignated and amended at 84 FR 187, Jan. 18, 2019] § 20.605 Rule 605. Procurement of additional evidence following a hearing in a legacy appeal. If it appears during the course of a hearing that additional evidence would assist in the review of the questions at issue, the presiding Member may direct that the record be left open so that the appellant and his or her representative may obtain the desired evidence. The presiding Member will determine the period of time during which the record will stay open, considering the amount of time estimated by the appellant or representative as needed to obtain the evidence and other factors adduced during the hearing. Ordinarily, the period will not exceed 60 days, and will be as short as possible in order that appellate consideration of the case not be unnecessarily delayed. (Authority: 38 U.S.C. 7102; 38 U.S.C. 7105, 7101 (2016)) [57 FR 4109, Feb. 3, 1992. Redesignated and amended at 84 FR 187, Jan. 18, 2019] §§ 20.606-20.699 [Reserved] Subpart H—Hearings on Appeal § 20.700 Rule 700. General. (a) Right to a hearing. (b) Purpose of hearing. (c) Nonadversarial proceedings. (Authority: 38 U.S.C. 7102, 7105(a), 7107) [57 FR 4109, Feb. 3, 1992, as amended at 58 FR 27935, May 12, 1993; 61 FR 20450, May 7, 1996; 84 FR 184, Jan. 18, 2019] § 20.701 Rule 701. Who may present oral argument. Only the appellant and/or his or her authorized representative may appear and present argument in support of an appeal. At the request of an appellant, a Veterans Benefits Counselor of the Department of Veterans Affairs may present the appeal at a hearing before the Board of Veterans' Appeals. (Authority: 38 U.S.C. 7102, 7105, 7107) [58 FR 27935, May 12, 1993] § 20.702 Rule 702. Methods by which hearings are conducted. A hearing on appeal before the Board may be held by one of the following methods: (a) In person at the Board's principal location in Washington, DC, or (b) By electronic hearing, through picture and voice transmission, with the appellant appearing at a Department of Veterans Affairs facility. (Authority: 38 U.S.C. 7102, 7105(a), 7107) [84 FR 186, Jan. 18, 2019] § 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. (a) How to request a hearing. (b) Board's determination of method of hearing. (c) Notification of method of hearing. (d) How to request a change in method of hearing. (e) Notification of scheduling of hearing. (Authority: 38 U.S.C. 7105(a), 7107) [84 FR 186, Jan. 18, 2019] § 20.704 Rule 704. Scheduling and notice of hearings conducted by the Board of Veterans' Appeals. (a)(1) General. (2) Special provisions for legacy appeals. (b) Notification of hearing. (Authority: 38 U.S.C. 7102, 7105(a), 7107) (c) Requests for changes in hearing dates. (d) Failure to appear for a scheduled hearing. (e) Withdrawal of hearing requests. (f) Advancement of the case on the hearing docket. (Authority: 38 U.S.C. 7107) (Approved by the Office of Management and Budget under control number 2900-0085) [57 FR 4109, Feb. 3, 1992, as amended at 58 FR 27935, May 12, 1993; 61 FR 20450, May 7, 1996; 81 FR 32649, May 24, 2016. Redesignated and amended at 84 FR 185, Jan. 18, 2019] § 20.705 Rule 705. Functions of the presiding Member. (a) General. (b) Duties. (1) Conducting a prehearing conference, pursuant to § 20.707; (2) Ruling on questions of procedure; (3) Administering the oath or affirmation; (4) Ensuring that the course of the Board hearing remains relevant to the issue or issues on appeal; (5) Setting reasonable time limits for the presentation of argument; (6) Prohibiting cross-examination of the appellant and any witnesses; (7) Determining whether documentary evidence, testimony, and/or argument is relevant or material to the issue or issues being considered and not unduly repetitious; (8) Terminating a Board hearing or directing that an offending party, representative, witness, or observer leave the hearing if that party persists or engages in disruptive or threatening behavior; (9) Disallowing or halting the use of personal recording equipment being used by an appellant or representative if it becomes disruptive to the hearing; and (10) Taking any other steps necessary to maintain good order and decorum. (c) Ruling on motions. (Authority: 38 U.S.C. 501) [84 FR 187, Jan. 18, 2019] § 20.706 Rule 706. Designation of Member or Members to conduct the hearing. Hearings will be conducted by a Member or panel of Members of the Board. Where a proceeding has been assigned to a panel, the Chairman, or the Chairman's designee, shall designate one of the Members as the presiding Member. (Authority: 38 U.S.C. 7102, 7107) [84 FR 187, Jan. 18, 2019] § 20.707 Rule 707. Prehearing conference. An appellant's authorized representative may request a prehearing conference with the presiding Member of a hearing to clarify the issues to be considered at a hearing on appeal, obtain rulings on the admissibility of evidence, develop stipulations of fact, establish the length of argument which will be permitted, or take other steps which will make the hearing itself more efficient and productive. (Authority: 38 U.S.C. 7102, 7107) [84 FR 34788, July 19, 2019] § 20.708 Rule 708. Witness at hearings. The testimony of witnesses, including appellants, will be heard. All testimony must be given under oath or affirmation. Oath or affirmation is not required for the sole purpose of presenting contentions and argument. (Authority: 38 U.S.C. 7102, 7105(a), 7107) [61 FR 29028, June 7, 1996. Redesignated and amended at 84 FR 187, Jan. 18, 2019] § 20.709 Rule 709. Subpoenas. (a) General. (b) Contents of motion for subpoena. (c) Where filed. (d) When motion for subpoena is to be filed in cases involving a hearing on appeal. (e) Ruling on motion for subpoena To whom assigned. (2) Procedure. (f) Fees. (g) Service of subpoenas. (h) Motion to quash or modify subpoena Filing procedure. (i) That a copy of the motion, and any attachments thereto, were mailed to the party who secured the subpoena, or the person subpoenaed, as applicable; (ii) The date of mailing; and (iii) The address to which the copy was mailed. (2) Response. (i) That a copy of the response, and any attachments thereto, were mailed to the moving party; (ii) The date of mailing; and (iii) The address to which the copy was mailed. If the subpoena involves testimony or the production of tangible evidence at a hearing before the Board and less than 30 days remain before the scheduled hearing date at the time the response is received by the Board, the Board may reschedule the hearing to permit disposition of the motion. (3) Ruling on the motion. (i) Disobedience. (Authority: 38 U.S.C. 5711, 5713, 7102(a)) (Authority: 38 U.S.C. 5711, 7102(a), 7107) [57 FR 4109, Feb. 3, 1992, as amended at 61 FR 20452, May 7, 1996; 66 FR 49538, Sept. 28, 2001; 81 FR 32650, May 24, 2016. Redesignated and amended 84 FR 187, Jan. 18, 2019; 84 FR 4337, Feb. 15, 2019] § 20.710 Rule 710. Expenses of appellants, representatives, and witnesses incident to hearings not reimbursable by the Government. No expenses incurred by an appellant, representative, or witness incident to attendance at a hearing may be paid by the Government. (Authority: 38 U.S.C. 111) [57 FR 4109, Feb. 3, 1992. Redesignated and amended at 84 FR 187, Jan. 18, 2019] § 20.711 Rule 711. Hearings in simultaneously contested claims. (a) General. (b) Requests for changes in hearing dates. (2)(i) A request under Rule 704, paragraph (c) must be made within 60 days from the date of the letter of notification of the time and place of the hearing, or not later than two weeks prior to the scheduled hearing date, whichever is earlier. (ii) In order to obtain a new hearing date under the provisions of Rule 704, paragraph (c) (§ 20.704(c)), the consent of all other interested parties must be obtained and submitted with the request for a new hearing date. If such consent is not obtained, the date of the hearing will become fixed. After a hearing date has become fixed, an extension of time for appearance at a hearing will be granted only for good cause, with due consideration of the interests of other parties. Examples of good cause include, but are not limited to, illness of the appellant and/or representative, difficulty in obtaining necessary records, and unavailability of a necessary witness. The motion for a new hearing date must be in writing and must explain why a new hearing date is necessary. If good cause is shown, the hearing will be rescheduled for the next available hearing date after the appellant or his or her representative gives notice that the contingency which gave rise to the request for postponement has been removed. Ordinarily, however, hearings will not be postponed more than 30 days. Whether good cause for establishing a new hearing date has been shown will be determined by the presiding Member assigned to conduct the hearing. (3) A copy of any motion for a new hearing date required by these rules must be mailed to all other interested parties by certified mail, return receipt requested. The receipts, which must bear the signatures of the other interested parties, and a letter explaining that they relate to the motion for a new hearing date and containing the applicable Department of Veterans Affairs file number must be filed at the same address where the motion was filed as proof of service of the motion. Each interested party will be allowed a period of 10 days from the date that the copy of the motion was received by that party to file written argument in response to the motion. (Authority: 38 U.S.C. 7105A) [57 FR 4109, Feb. 3, 1992. Redesignated and amended at 84 FR 187, Jan. 18, 2019; 84 FR 34788, July 19, 2019] § 20.712 Rule 712. Record of hearing. (a) General. (b) Hearing recording. (c) Copy of written transcript. [84 FR 188, Jan. 18, 2019] § 20.713 Rule 713. Recording of hearing by appellant or representative. An appellant or representative may record the hearing with his or her own equipment. Filming, videotaping or televising the hearing may only be authorized when prior written consent is obtained from all appellants and contesting claimants, if any, and made a matter of record. In no event will such additional equipment be used if it interferes with the conduct of the hearing or the official recording apparatus. In all such situations, advance arrangements must be made with the Board of Veterans' Appeals, P.O. Box 27063, Washington, DC 20038. (Authority: 38 U.S.C. 7102, 7107) [84 FR 34788, July 19, 2019] § 20.714 Rule 714. Correction of hearing transcripts. If an appellant wishes to seek correction of perceived errors in a hearing transcript, the appellant or his or her representative should move for correction of the hearing transcript within 30 days after the date that the transcript is mailed to the appellant. The motion must be in writing and must specify the error, or errors, in the transcript and the correct wording to be substituted. The motion must be filed with the Board of Veterans' Appeals, P.O. Box 27063, Washington, DC 20038. The ruling on the motion will be made by the presiding Member of the hearing. (Authority: 38 U.S.C. 7102, 7107) [84 FR 188, Jan. 18, 2019] § 20.715 Rule 715. Loss of hearing recordings or transcripts—request for new hearing. (a) Notification. (i) Appear at a new Board hearing, pursuant to Rules 703 and 704 (§§ 20.703 and 20.704) for appeals or Rules 602 and 603 (§§ 20.602 and 20.603) for legacy appeals, as defined in § 19.2 of this chapter; or (ii) Have the Board proceed to appellate review of the appeal based on the evidence of record. (2) The notice will inform the appellant that he or she has a period of 30 days to respond to the notice. If the appellant does not respond by requesting a new hearing within 30 days from the date of the mailing of the notice, then the Board will decide the appeal on the basis of the evidence of record. A request for a new Board hearing will not be accepted once the Board has issued a decision on the appeal. (b) Board decision issued prior to a loss of the recording or transcript. (Authority: 38 U.S.C. 7102, 7105(a), 7107) [84 FR 188, Jan. 18, 2019] §§ 20.716-20.799 [Reserved] Subpart I—Appeals Processing § 20.800 Rule 800. Order of consideration of appeals. (a) Docketing of appeals. (i) A docket for appeals in which an appellant does not request a hearing or an opportunity to submit additional evidence on the Notice of Disagreement; (ii) A docket for appeals in which the appellant does not request a hearing but does request an opportunity to submit additional evidence on the Notice of Disagreement; and (iii) A docket for appeals in which the appellant requests a hearing on the Notice of Disagreement. (2) An appeal may be moved from one docket to another only when the Notice of Disagreement has been modified pursuant to Rule 202, paragraph (c)(3) (§ 20.202(c)(3)). The request to modify the Notice of Disagreement must reflect that the appellant requests the option listed in § 20.202(b) that corresponds to the docket to which the appeal will be moved. An appeal that is moved from one docket to another will retain its original docket date. (b) Except as otherwise provided, each appeal will be decided in the order in which it is entered on the docket to which it is assigned. (c) Advancement on the docket Grounds for advancement. (2) Requirements for motions. e.g., (3) Disposition of motions. (d) Consideration of appeals remanded by the United States Court of Appeals for Veterans Claims. (Authority: 38 U.S.C. 7112; Sec. 302,103-446; 108 Stat. 4645) (e) Case remanded to correct duty to assist error and new Notice of Disagreement filed after readjudication. (f) Cases involving substitution. (Authority: 38 U.S.C. 5121A) (g) Postponement to provide hearing. (Authority: 38 U.S.C. 7105, 7107) [84 FR 188, Jan. 18, 2019; 84 FR 34788, July 19, 2019] § 20.801 Rule 801. The decision. (a) General. (b) Content. (1) Findings of fact and conclusions of law on all material issues of fact and law presented on the record; (2) The reasons or bases for those findings and conclusions; (3) A general statement reflecting whether any evidence was received at a time when not permitted under subpart D, and informing the appellant that any such evidence was not considered by the Board and of the options available to have that evidence reviewed by the Department of Veterans Affairs; and (4) An order granting or denying the benefit or benefits sought on appeal, dismissing the appeal, or remanding the issue or issues as described in Rule 802 (§ 20.802). (c) Panel decision. (Authority: 38 U.S.C. 7104(d)) [84 FR 188, Jan. 18, 2019] § 20.802 Rule 802. Remand for correction of error. (a) Remand. (b) Advisory Medical Opinion. (c) Action by agency of original jurisdiction after receipt of remand. (Authority: 38 U.S.C. 5103A, 5109, 5109B, 7102, 7104(a), 7105) [84 FR 188, Jan. 18, 2019] § 20.803 Rule 803. Content of Board decision, remand, or order in simultaneously contested claims. The content of the Board's decision, remand, or order in appeals involving a simultaneously contested claim will be limited to information that directly affects the issues involved in the contested claim. Appellate issues that do not involve all of the contesting parties will be addressed in one or more separate written decisions, remands, or orders that will be furnished only to the appellants concerned and their representatives, if any. (Authority: 5 U.S.C. 552a(b), 38 U.S.C. 5701(a)) [84 FR 188, Jan. 18, 2019] § 20.804 Rule 804. Opinions of the General Counsel. (a) The Board may obtain an opinion from the General Counsel of the Department of Veterans Affairs on legal questions involved in the consideration of an appeal. (b) Filing of requests for the procurement of opinions. (c) Notification of evidence to be considered by the Board and opportunity for response. (d) For purposes of this section, the term “the Board” includes the Chairman, the Vice Chairman, any Deputy Vice Chairman, and any Member of the Board before whom a case is pending. (Authority: 38 U.S.C. 5107(a), 7102(c), 7104(a), 7104(c)) [84 FR 188, Jan. 18, 2019] §§ 20.805-20.899 [Reserved] Subpart J—Action by the Board in Legacy Appeals § 20.900 Rule 900. Applicability. The provisions in this subpart apply to Board decisions and remands rendered in legacy appeals, as defined in § 19.2 of this chapter. (Authority: Sec. 2,115-55; 131 Stat. 1105) [84 FR 190, Jan. 18, 2019] § 20.901 Rule 901. Submission of additional evidence after initiation of appeal. Subject to the limitations set forth in Rule 1304 (§ 20.1304 of this part), an appellant may submit additional evidence, or information as to the availability of additional evidence, after initiating an appeal. 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. 5904, 7105(d)(1) (2016)) [57 FR 4109, Feb. 3, 1992, as amended at 73 FR 29879, May 22, 2008. Redesignated and amended at 84 FR 188, 190, Jan. 18, 2019; 84 FR 4337, Feb. 15, 2019] § 20.902 Rule 902. Order of consideration of appeals. (a) Docketing of appeals. (1) A case returned to the Board following action pursuant to a remand assumes its original place on the docket. (2) A case returned to the Board following the grant of a substitution request or pursuant to an appeal of a denial of a substitution request assumes the same place on the docket held by the deceased appellant at the time of his or her death. Pursuant to paragraph (c) of this section, if the deceased appellant's case was advanced on the docket prior to his or her death, the substitute will receive the benefit of the advanced placement. (b) Appeals considered in docket order. (c) Advancement on the docket Grounds for advancement. (2) Requirements for motions. (3) Disposition of motions. (d) Consideration of appeals remanded by the United States Court of Appeals for Veterans Claims. (Authority: Sec. 302, Pub. L. 103-446; 108 Stat. 4645) (e) Postponement to provide hearing. (Authority: 38 U.S.C. 5121A, 7107; 38 U.S.C. 7107 (2016)) [57 FR 4109, Feb. 3, 1992, as amended at 60 FR 51923, Oct. 4, 1995; 61 FR 20453, May 7, 1996; 65 FR 14472, Mar. 17, 2000; 68 FR 53683, Sept. 12, 2003; 79 FR 52984, Sept. 5, 2014; 81 FR 32650, May 24, 2016. Redesignated and amended at 84 FR 190, Jan. 18, 2019] § 20.903 Rule 903. The decision. (a) Decisions based on entire record. (Authority: 38 U.S.C. 7104(a), 7105(d)(4)) (b) Content. (c) A decision by a panel of Members will be by a majority vote of the panel Members. (Authority: 38 U.S.C. 7104(d) (2016)) [57 FR 4104, Feb. 3, 1992, as amended at 61 FR 20449, May 7, 1996. Redesignated at 84 FR 177, Jan. 18, 2019, as amended at 84 FR 4337, Feb. 15, 2019] § 20.904 Rule 904. Remand or referral for further action. (a) Remand. (b) Referral. (c) Remand for a Statement of the Case. (d) Exceptions. (1) Clarifying a procedural matter before the Board, including the appellant's choice of representative before the Board, the issues on appeal, or requests for a hearing before the Board; (2) Considering law not already considered by the agency of original jurisdiction, including, but not limited to, statutes, regulations, and court decisions; (3) Reviewing additional evidence received by the Board, if, pursuant to Rule 1305 (§ 20.1305(c) of this part), the appellant or the appellant's representative waives the right to initial consideration by the agency of original jurisdiction, or if the Board determines that the benefit or benefits to which the evidence relates may be fully allowed on appeal; (4) Requesting an opinion under Rule 906 (§ 20.906 of this part); (5) Supplementing the record with a recognized medical treatise; or (6) Considering a matter over which the Board has original jurisdiction. (Authority: 38 U.S.C. 7102, 7103(c); 38 U.S.C. 7104(a), 7105 (2016)). [67 FR 3104, Jan. 23, 2002, as amended at 69 FR 53808, Sept. 3, 2004; 76 FR 17547, Mar. 30, 2011. Redesignated at 84 FR 177, Jan. 18, 2019, as amended at 84 FR 4337, Feb. 15, 2019; 84 FR 34788, July 19, 2019] § 20.905 Rule 905. Content of Board decision, remand, or order in simultaneously contested claims. The content of the Board's decision, remand, or order in appeals involving a simultaneously contested claim will be limited to information that directly affects the issues involved in the contested claim. Appellate issues that do not involve all of the contesting parties will be addressed in one or more separate written decisions, remands, or orders that will be furnished only to the appellants concerned and their representatives, if any. (Authority: 5 U.S.C. 552a(b), 38 U.S.C. 5701(a)) [61 FR 68666, Dec. 30, 1996. Redesignated at 84 FR 177, Jan. 18, 2019, as amended at 84 FR 4337, Feb. 15, 2019] § 20.906 Rule 906. Medical opinions and opinions of the General Counsel. (a) Opinion from the Veterans Health Administration. (Authority: 38 U.S.C. 5103A(d), 7109) (b) Joint Pathology Center opinions. (Authority: 38 U.S.C. 7109(a)) (c) Opinion of the General Counsel. (Authority: 38 U.S.C. 7104(c)) (d) Independent medical expert opinions. (Authority: 38 U.S.C. 7109) (e) For purposes of this section, the term “the Board” includes the Chairman, the Vice Chairman, any Deputy Vice Chairman, and any Member of the Board before whom a case is pending. (Authority: 38 U.S.C. 5107(a), 7104(c), 7109) [57 FR 4109, Feb. 3, 1992, as amended at 61 FR 20453, May 7, 1996; 66 FR 38159, July 23, 2001; 69 FR 19937, Apr. 15, 2004. Redesignated and amended at 84 FR 188, 190, Jan. 18, 2019; 84 FR 34788, July 19, 2019] § 20.907 Rule 907. Filing of requests for the procurement of opinions. The appellant or representative may request that the Board obtain an opinion under Rule 906 (§ 20.906). The request must be in writing. It will be granted upon a showing of good cause, such as the identification of a complex or controversial medical or legal issue involved in the appeal which warrants such an opinion. (Authority: 38 U.S.C. 5107(a), 7102(c), 7104(c), 7109) [57 FR 4109, Feb. 3, 1992. Redesignated and amended at 84 FR 188, 190, Jan. 18, 2019] § 20.908 Rule 908. Notification of evidence to be considered by the Board and opportunity for response. (a) If the Board obtains a legal or medical opinion. (b) If the Board supplements the record with a recognized medical treatise General. (2) Exception. (Authority: 38 U.S.C. 7104(a), 7109(c)). [67 FR 3105, Jan. 23, 2002, as amended at 69 FR 53808, Sept. 3, 2004; 76 FR 17548, Mar. 30, 2011. Redesignated and amended at 84 FR 177, 190, Jan. 18, 2019] §§ 20.909-20.999 [Reserved] Subpart K—Vacatur and Reconsideration § 20.1000 Rule 1000. Vacating a decision. An appellate decision may be vacated by the Board of Veterans' Appeals at any time upon request of the appellant or his or her representative, or on the Board's own motion, on the following grounds: (a) Denial of due process. (1) When the appellant was denied his or her right to representation through action or inaction by Department of Veterans Affairs or Board of Veterans' Appeals personnel, (2) When there was a prejudicial failure to afford the appellant a personal hearing. (Where there was a failure to honor a request for a hearing and a hearing is subsequently scheduled, but the appellant fails to appear, the decision will not be vacated.), and (3) For a legacy appeal, as defined in § 19.2 of this chapter, when a Statement of the Case or required Supplemental Statement of the Case was not provided. (b) Allowance of benefits based on false or fraudulent evidence. (Authority: 38 U.S.C. 7104(a)) [57 FR 4109, Feb. 3, 1992. Redesignated and amended at 84 FR 177, 191, Jan. 18, 2019, as amended at 84 FR 4337, Feb. 15, 2019] § 20.1001 Rule 1001. When reconsideration is accorded. Reconsideration of an appellate decision may be accorded at any time by the Board of Veterans' Appeals on motion by the appellant or his or her representative or on the Board's own motion: (a) Upon allegation of obvious error of fact or law; (b) Upon discovery of new evidence in the form of relevant records or reports of the service department concerned; or (c) Upon allegation that an allowance of benefits by the Board has been materially influenced by false or fraudulent evidence submitted by or on behalf of the appellant. (Authority: 38 U.S.C. 7103, 7104) [57 FR 4109, Feb. 3, 1992. Redesignated and amended at 84 FR 190, 191, Jan. 18, 2019] § 20.1002 Rule 1002. Filing and disposition of motion for reconsideration. (a) Application requirements. (b) Filing of motion for reconsideration. (c) Disposition. (1) Motion denied. (2) Motion allowed. (Authority: 38 U.S.C. 7103, 7108) [57 FR 4109, Feb. 3, 1992, as amended at 81 FR 32650, May 24, 2016. Redesignated and amended at 84 FR 190, 191, Jan. 18, 2019] § 20.1003 Rule 1003. Hearings on reconsideration. After a motion for reconsideration has been allowed, a hearing will be granted if the issue under reconsideration was considered on a docket for cases that may include a hearing, and an appellant requests a hearing before the Board. The hearing will be held by a Member or Members assigned to the reconsideration panel. A hearing will not normally be scheduled solely for the purpose of receiving argument by a representative. Such argument should be submitted in the form of a written brief. Requests for appearances by representatives alone to personally present argument to a Member or panel of Members of the Board may be granted if good cause is shown. Whether good cause has been shown will be determined by the presiding Member. (Authority: 38 U.S.C. 7102, 7103, 7105(a)) [61 FR 20453, May 7, 1996, as amended at 84 FR 191, Jan. 18, 2019] § 20.1004 Rule 1004. Reconsideration panel. (a) Assignment of Members. (b) Number of Members constituting a reconsideration panel. (c) Members included in the reconsideration panel. (Authority: 38 U.S.C. 7102, 7103) [61 FR 20449, May 7, 1996. Redesignated at 84 FR 177, Jan. 18, 2019, as amended at 84 FR 4337, Feb. 15, 2019] §§ 20.1005-20.1099 [Reserved] Subpart L—Finality § 20.1100 Rule 1100. Finality of decisions of the Board. (a) General. (b) Exceptions. (Authority: 38 U.S.C. 511(a), 7103, 7104(a)) [57 FR 4109, Feb. 3, 1992, as amended at 61 FR 20453, May 7, 1996] § 20.1101 Rule 1101. [Reserved] § 20.1102 Rule 1102. Harmless error. An error or defect in any decision by the Board of Veterans' Appeals which does not affect the merits of the issue or substantive rights of the appellant will be considered harmless and not a basis for vacating or reversing such decision. (Authority: 38 U.S.C. 7103) § 20.1103 Rule 1103. Finality of determinations of the agency of original jurisdiction where issue is not appealed. A determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if an appeal is not perfected as prescribed in § 19.52 of this chapter. If no Notice of Disagreement is filed as prescribed in subpart C of this part, the claim shall not thereafter be readjudicated or allowed, except as provided by 38 U.S.C. 5104B or 5108, or by regulation. [84 FR 191, Jan. 18, 2019] § 20.1104 Rule 1104. Finality of determinations of the agency of original jurisdiction affirmed on appeal. When a determination of the agency of original jurisdiction is affirmed by the Board of Veterans' Appeals, such determination is subsumed by the final appellate decision. (Authority: 38 U.S.C. 7104(a)) § 20.1105 Rule 1105. Supplemental claim after promulgation of appellate decision. (a) After an appellate decision has been promulgated on a claim, a claimant may file a supplemental claim with the agency of original jurisdiction by submitting the prescribed form with new and relevant evidence related to the previously adjudicated claim as set forth in § 3.2601 of this chapter, except in cases involving simultaneously contested claims under Subpart E of this part. (Authority: 38 U.S.C. 5108, 7104) (b) Legacy appeals pending on the effective date. (Authority: 38 U.S.C. 5108, 7104 (2016)) [84 FR 191, Jan. 18, 2019] § 20.1106 Rule 1106. Claim for death benefits by survivor—prior unfavorable decisions during veteran's lifetime. Except with respect to benefits under the provisions of 38 U.S.C. 1311(a)(2) and 1318, and certain cases involving individuals whose Department of Veterans Affairs benefits have been forfeited for treason or for subversive activities under the provisions of 38 U.S.C. 6104 and 6105, issues involved in a survivor's claim for death benefits will be decided without regard to any prior disposition of those issues during the veteran's lifetime. Cases in which a person substitutes for a deceased veteran under 38 U.S.C. 5121A are not claims for death benefits and are not subject to this section. Cases in which a person substitutes for a deceased death benefits claimant under 38 U.S.C. 5121A are claims for death benefits subject to this section. (Authority: 38 U.S.C. 5121A, 7104(b)). [79 FR 52984, Sept. 5, 2014] §§ 20.1107-20.1199 [Reserved] Subpart M—Privacy Act § 20.1200 Rule 1200. Privacy Act request—appeal pending. When a Privacy Act request is filed under § 1.577 of this chapter by an individual seeking records pertaining to him or her and the relevant records are in the custody of the Board, such request will be reviewed and processed prior to appellate action on that individual's appeal. (Authority: 5 U.S.C. 552a; 38 U.S.C. 7107) § 20.1201 Rule 1201. Amendment of appellate decisions. A request for amendment of an appellate decision under the Privacy Act (5 U.S.C. 552a) may be entertained. However, such a request may not be used in lieu of, or to circumvent, the procedures established under Rules 1001 through 1004 (§§ 20.1001-20.1004). The Board will review a request for correction of factual information set forth in a decision. Where the request to amend under the Privacy Act is an attempt to alter a judgment made by the Board and thereby replace the adjudicatory authority and functions of the Board, the request will be denied on the basis that the Act does not authorize a collateral attack upon that which has already been the subject of a decision of the Board. The denial will satisfy the procedural requirements of § 1.579 of this chapter. If otherwise appropriate, the request will be considered one for reconsideration under Rules 1001 through 1004 (§§ 20.1001-20.1004). (Authority: 5 U.S.C. 552a(d); 38 U.S.C. 7103, 7108) [57 FR 4109, Feb. 3, 1992, as amended at 84 FR 191, Jan. 18, 2019] §§ 20.1202-20.1299 [Reserved] Subpart N—Miscellaneous Cross Reference: In cases involving access to patient information relating to a Department of Veterans Affairs program for, or the treatment of, drug abuse, alcoholism, alcohol abuse, sickle cell anemia, or infection with the human immunodeficiency virus, also see 38 U.S.C. 7332. § 20.1300 Rule 1300. Removal of Board records. No original record, paper, document or exhibit certified to the Board may be taken from the Board except as authorized by the Chairman or except as may be necessary to furnish copies or to transmit copies for other official purposes. (Authority: 38 U.S.C. 5701) [61 FR 29028, June 7, 1996] § 20.1301 Rule 1301. Disclosure of information. (a) Policy. (b) Legacy appeals. (Authority: 38 U.S.C. 7105(d)(2)) (c) Public availability of Board decisions Decisions issued on or after January 1, 1992. (2) Decisions issued prior to January 1, 1992. 82-07-0001. BVA-90-12345. (Authority: 5 U.S.C. 552(a)(2), 38 U.S.C. 501(a)) [57 FR 4109, Feb. 3, 1992, as amended at 71 FR 18009, Apr. 10, 2006; 81 FR 32650, May 24, 2016; 84 FR 191, Jan. 18, 2019] § 20.1302 Rule 1302. Death of appellant during pendency of appeal before the Board. (a) General. (b) Exception. (2) If the agency of original jurisdiction grants the request to substitute, the Board of Veterans' Appeals can then take the testimony of the substitute at a hearing held pursuant to Rules 700 through 717 (§§ 20.700 through 20.717). If the substitute desires representation at the hearing, he or she must appoint a representative prior to the hearing pursuant to § 14.631(g) of this chapter. (Authority: 38 U.S.C. 5121A, 7104(a)). [79 FR 52984, Sept. 5, 2014, as amended at 84 FR 191, Jan. 18, 2019] § 20.1303 Rule 1303. Nonprecedential nature of Board decisions. Although the Board strives for consistency in issuing its decisions, previously issued Board decisions will be considered binding only with regard to the specific case decided. Prior decisions in other appeals may be considered in a case to the extent that they reasonably relate to the case, but each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law. (Authority: 38 U.S.C. 7104(a)) § 20.1304 Rule 1304. Request for a change in representation. (a) Request for a change in representation within 90 days following Notice of Disagreement. (b) Subsequent request for a change in representation. e.g., (1) Good cause not shown. (2) Good cause shown. (Authority: 38 U.S.C. 5902, 5903, 5904, 7105, 7105A) [84 FR 191, Jan. 18, 2019] § 20.1305 Rule 1305. Procedures for legacy appellants to request a change in representation, personal hearing, or submission of additional evidence following certification of an appeal to the Board of Veterans' Appeals. (a) Request for a change in representation, request for a personal hearing, or submission of additional evidence within 90 days following notification of certification and transfer of records. (b) Subsequent request for a change in representation, request for a personal hearing, or submission of additional evidence General rule. (i) Good cause not shown. (ii) Good cause shown. (2) Exception. (c) Consideration of additional evidence by the Board or by the agency of original jurisdiction. (d) Simultaneously contested claims. (e) Relationship to proceedings before the General Counsel to cancel accreditation or to review the reasonableness of fees and expenses. (Authority: 38 U.S.C. 5121A, 5902, 5903; 38 U.S.C. 5904, 7104, 7105, 7105A (2016)) [57 FR 4109, Feb. 3, 1992, as amended at 60 FR 25851, May 15, 1995; 61 FR 20453, May 7, 1996; 67 FR 3105, Jan. 23, 2002; 69 FR 53808, Sept. 3, 2004; 73 FR 29880, May 22, 2008; 76 FR 17548, Mar. 30, 2011; 79 FR 52984, Sept. 5, 2014; 81 FR 32650, May 24, 2016. Redesignated and amended at 84 FR 191, 192, Jan. 18, 2019] §§ 20.1306-20.1399 [Reserved] Subpart O—Revision of Decisions on Grounds of Clear and Unmistakable Error Source: 64 FR 2139, Jan. 13, 1999, unless otherwise noted. § 20.1400 Rule 1400. Motions to revise Board decisions. (a) Review to determine whether clear and unmistakable error exists in a final Board decision may be initiated by the Board, on its own motion, or by a party to that decision (as the term “party” is defined in Rule 1401(b) (§ 20.1401(b) of this part) in accordance with Rule 1404 (§ 20.1404 of this part). (b) All final Board decisions are subject to revision under this subpart except: (1) Decisions on issues which have been appealed to and decided by a court of competent jurisdiction; and (2) Decisions on issues which have subsequently been decided by a court of competent jurisdiction. (Authority: 38 U.S.C. 501(a), 7111) [64 FR 2139, Jan. 13, 1999, as amended at 64 FR 73414, Dec. 30, 1999] § 20.1401 Rule 1401. Definitions. (a) Issue. (b) Party. (Authority: 38 U.S.C. 501(a), 7104(a)) [57 FR 4109, Feb. 3, 1992, as amended at 84 FR 192, Jan. 18, 2019] § 20.1402 Rule 1402. Inapplicability of other rules. Motions filed under this subpart are not appeals and, except as otherwise provided, are not subject to the provisions of part 19 of this title or this part 20 which relate to the processing and disposition of appeals. (Authority: 38 U.S.C. 501(a)) § 20.1403 Rule 1403. What constitutes clear and unmistakable error; what does not. (a) General. (b) Record to be reviewed General. (2) Special rule for Board decisions on legacy appeals issued on or after July 21, 1992. (c) Errors that constitute clear and unmistakable error. (d) Examples of situations that are not clear and unmistakable error Changed diagnosis. (2) Duty to assist. (3) Evaluation of evidence. (e) Change in interpretation. (Authority: 38 U.S.C. 501(a), 7111) [57 FR 4109, Feb. 3, 1992, as amended at 84 FR 192, Jan. 18, 2019] § 20.1404 Rule 1404. Filing and pleading requirements; withdrawal. (a) General. (b) Specific allegations required. (c) Filing. (d) Requests not filed at the Board. (e) Motions for reconsideration. (f) Withdrawal. (Authority: 38 U.S.C. 501(a), 7111) [64 FR 2139, Jan. 13, 1999, as amended at 66 FR 35903, July 10, 2001; 81 FR 32650, May 24, 2016; 84 FR 192, Jan. 18, 2019] § 20.1405 Rule 1405. Disposition. (a) Docketing and assignment; notification of representative General. (2) Advancement on the docket. (3) Notification of representative. (b) Evidence. (c) Hearing Availability. (2) Submission of requests. (d) Referral to ensure completeness of the record. (e) General Counsel opinions. (f) Decision. (Authority: 38 U.S.C. 501(a), 7104(d), 7111) [64 FR 2139, Jan. 13, 1999, as amended at 64 FR 7091, Feb. 12, 1999; 66 FR 37151, July 17, 2001; 68 FR 53682, Sept. 12, 2003; 81 FR 32650, May 24, 2016; 84 FR 192, Jan. 18, 2019; 84 FR 34788, July 19, 2019] § 20.1406 Rule 1406. Effect of revision; discontinuance or reduction of benefits. (a) General. (b) Discontinuance or reduction of benefits. (Authority: 38 U.S.C. 7111(b)) § 20.1407 Rule 1407. Motions by the Board. If the Board undertakes, on its own motion, a review pursuant to this subpart, the party to that decision and that party's representative (if any) will be notified of such motion and provided an adequate summary thereof and, if applicable, outlining any proposed discontinuance or reduction in benefits that would result from revision of the Board's prior decision. They will be allowed a period of 60 days to file a brief or argument in answer. The failure of a party to so respond does not affect the finality of the Board's decision on the motion. (Authority: 38 U.S.C. 501(a), 7111) § 20.1408 Rule 1408. Special rules for simultaneously contested claims. In the case of a motion under this subpart to revise a final Board decision in a simultaneously contested claim, as that term is used in Rule 3(l) (§ 20.3(l) of this part), a copy of such motion shall, to the extent practicable, be sent to all other contesting parties. Other parties have a period of 30 days from the date of mailing of the copy of the motion to file a brief or argument in answer. The date of mailing of the copy will be presumed to be the same as the date of the letter which accompanies the copy. Notices in simultaneously contested claims will be forwarded to the last address of record of the parties concerned and such action will constitute sufficient evidence of notice. (Authority: 38 U.S.C. 501(a)) [57 FR 4109, Feb. 3, 1992, as amended at 84 FR 193, Jan. 18, 2019] § 20.1409 Rule 1409. Finality and appeal. (a) A decision on a motion filed by a party or initiated by the Board pursuant to this subpart will be stamped with the date of mailing on the face of the decision, and is final on such date. The party and his or her representative, if any, will be provided with copies of the decision. (b) For purposes of this section, a dismissal without prejudice under Rule 1404(a)(§ 20.1404(a) of this part), Rule 1404(b)(§ 20.1404(b)), or Rule 1404(f)(§ 20.1404(f)), or a referral under Rule 1405, paragraph (d) (§ 20.1405(d) of this part) is not a final decision of the Board. (c) Once there is a final decision on a motion under this subpart relating to a prior Board decision on an issue, that prior Board decision on that issue is no longer subject to revision on the grounds of clear and unmistakable error. Subsequent motions relating to that prior Board decision on that issue shall be dismissed with prejudice. (d) Chapter 72 of title 38, United States Code (relating to judicial review), applies with respect to final decisions on motions filed by a party or initiated by the Board pursuant to this subpart. (Authority: 38 U.S.C. 501(a); Pub. L. 105-111) [64 FR 2139, Jan. 13, 1999, as amended at 66 FR 35903, July 10, 2001; 84 FR 193, Jan. 18, 2019] § 20.1410 Rule 1410. Stays pending court action. The Board will stay its consideration of a motion under this subpart upon receiving notice that the Board decision that is the subject of the motion has been appealed to a court of competent jurisdiction until the appeal has been concluded or the court has issued an order permitting, or directing, the Board to proceed with the motion. (Authority: 38 U.S.C. 501(a)) § 20.1411 Rule 1411. Relationship to other statutes. (a) The “benefit of the doubt” rule of 38 U.S.C. 5107(b) does not apply to the Board's decision, on a motion under this subpart, as to whether there was clear and unmistakable error in a prior Board decision. (b) For legacy appeals as defined in § 19.2 of this chapter, a motion under this subpart is not a claim subject to reopening under 38 U.S.C. 5108 (prior to the effective date described in Rule 4, paragraph (a) (§ 20.4(a) of this part) (relating to reopening claims on the grounds of new and material evidence). (c) A motion under this subpart is not an application for benefits subject to any duty associated with 38 U.S.C. 5103(a) (relating to applications for benefits). (d) A motion under this subpart is not a claim for benefits subject to the requirements and duties associated with 38 U.S.C. 5103A (imposing a duty to assist). (Authority: 38 U.S.C. 501(a)) [57 FR 4109, Feb. 3, 1992, as amended at 84 FR 193, Jan. 18, 2019] §§ 20.1412-20.1499 [Reserved] Subpart P [Reserved]