01-24766. Board of Veterans' Appeals: Rules of Practice-Time for Filing Substantive Appeal

AGENCY:

Department of Veterans Affairs.

ACTION:

Final rule.

SUMMARY:

This document amends the Rules of Practice of the Board of Veterans' Appeals (Board) relating to the time limit for filing a “substantive appeal.” The amendment implements an opinion by the General Counsel of the Department of Veterans Affairs (VA) that, in some cases, when a claimant files additional evidence, the deadline for filing a substantive appeal may be extended.

DATES:

Effective date: This amendment is effective February 11, 1997.

FOR FURTHER INFORMATION CONTACT:

Steven L. Keller, Acting Vice Chairman, Board of Veterans' Appeals, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, [phone].

SUPPLEMENTARY INFORMATION:

The Board is an administrative body within VA that decides appeals from denials of claims for veterans' benefits.

An appeal to the Board is initiated by filing a “notice of disagreement” with the “agency of original jurisdiction” (AOJ), usually one of VA's 58 regional offices. 38 U.S.C. 7105(a), (b); 38 CFR 20.200 and 20.201. In response, the AOJ provides the claimant with a “statement of the case,” that sets forth the reasons for the decision. 38 U.S.C. 7105(d)(1); 38 CFR 19.26 and 19.29. The claimant must file a substantive appeal within 60 days from the date of the mailing of the statement of the case, or within the remainder of the one-year period from the date VA mailed the original decision to the claimant, whichever is later. 38 U.S.C. 7105(d)(3); 38 CFR 20.302(b).

If, however, a claimant submits additional pertinent evidence after the AOJ issues the statement of the case, the AOJ must issue a “supplemental statement of the case” (SSOC). 38 CFR 19.31 and 19.37(a). VA's regulations give the claimant 60 days to respond to the SSOC. 38 CFR 20.302(c). However, the previous version of 38 CFR 20.304 provided that filing additional evidence after receipt of notice of an adverse determination did not extend the time limit for completing an appeal from that determination. Accordingly, if a claimant submitted (1) pertinent additional evidence within one year of the AOJ's determination and (2) a substantive appeal within 60 days of the issuance of the SSOC, but more than one year after the date of the AOJ's adverse determination, then the appeal would have been untimely under the prior version of 38 CFR 20.304.

In a precedent opinion, however, the General Counsel held that VA must provide the claimant with a 60-day period of time in which to file a substantive appeal following issuance of an SSOC even if the one-year appeal period will expire before the 60-day period ends. VAOPGCPREC 9-97; 62 FR 15565, 15567 (Apr. 1, 1997). The Board is bound in its decisions by the precedent opinions of the General Counsel. 38 U.S.C. 7104(c).

Accordingly, we are amending 38 CFR 20.302 and 20.304 to conform to that General Counsel opinion. As amended, these rules clarify that, where a claimant submits additional pertinent evidence within one year of the challenged AOJ decision, and that evidence requires the preparation of an SSOC, the time to file a substantive appeal shall end not sooner than 60 days after the AOJ mails that SSOC.

Because this is a rule of agency practice, this rule would be published as a final rule. 5 U.S.C. 553(b)(3)(A). In addition, because this amendment constitutes a liberalizing change relieving a restriction and is an interpretative rule, this amendment is not required to be published 30 days prior to its effective date. 5 U.S.C. 553(d). In this case, since the Board is bound by the precedent opinions of the General Counsel, 38 U.S.C. 7104(c), the amendment would be retroactively effective to February 11, 1997, the effective date of the precedent opinion upon which it is based.

Paperwork Reduction Act

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

Unfunded Mandates

The Unfunded Mandates Reform Act requires (in section 202) that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector of $100 million or more in any given year. This rule would have no consequential effect on State, local, or tribal governments.

Regulatory Flexibility Act

The Secretary hereby certifies that this rule does not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This rule would affect only the processing of claims by VA and would not affect small businesses. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial and final regulatory flexibility analyses requirements of sections 603 and 604.

List of Subjects in 38 CFR Part 20

• Administrative practice and procedure
• Claims
• Veterans

Approved: September 21, 2001.

Anthony J. Principi,

Secretary of Veterans Affairs.

For the reasons set out in the preamble, 38 CFR part 20 is amended as follows:

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

1. The authority citation for part 20 continues to read as follows:

Authority: 38 U.S.C. 501(a) and as noted in specific sections.

2. In § 20.302, paragraph (b) is revised to read as follows:

§ 20.302

Rule 302. Time limit for filing Notice of Disagreement, Substantive Appeal, and response to Supplemental Statement of the Case.

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(b) Substantive Appeal. (1) General. Except in the case of simultaneously contested claims, a Substantive Appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the Statement of the Case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. The date of mailing of the Statement of the Case will be presumed to be the same as the date of the Statement of the Case and the date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed.

(2) Special rule in certain cases where additional evidence is submitted. Except in the case of simultaneously contested claims, if (i) a claimant submits additional evidence within 1 year of the date of mailing of the notification of the determination being appealed, and (ii) that evidence requires, in accordance with § 19.31 of this title, that the claimant be furnished a Supplemental Statement of the Case, then the time to submit a Substantive Appeal shall end not sooner than 60 days after such Supplemental Statement of the Case is mailed to the appellant, even if the 60-day period extends beyond the expiration of the 1-year appeal period.

(Authority: 38 U.S.C. 7105 (b)(1), (d)(3).)

* * * * *

3. In § 20.304 is revised to read as follows:

§ 20.304

Rule 304. Filing additional evidence does not extend time limit for appeal.

Except as provided in Rule 302(b) (§ 20.302(b) of this part), 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.)