03-28615. Board of Veterans' Appeals: Rules of Practice; Use of Supplemental Statement of the Case

AGENCY:

Department of Veterans Affairs.

ACTION:

Final rule.

SUMMARY:

This document amends the Department of Veterans Affairs' (VA) Board of Veterans' Appeals Rules of Practice to eliminate the requirement that an appellant must file a timely Substantive Appeal with respect to issues covered in a Supplemental Statement of the Case that were not in the original Statement of the Case. This change is required to conform the Rules of Practice to recent changes in VA's Appeals Regulations.

DATES:

Effective Date: November 17, 2003.

Applicability Date: This amendment applies to appeals for which a notice of disagreement was filed on or after November 17, 2003.

FOR FURTHER INFORMATION CONTACT:

Steven L. Keller, Senior Deputy Vice Chairman, Board of Veterans' Appeals (01C), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420 [phone].

SUPPLEMENTARY INFORMATION:

The Board of Veterans' Appeals (Board) is an administrative body that decides appeals from denials by agencies of original jurisdiction (AOJs) of claims for veterans' benefits. The AOJ is typically one of VA's 57 regional offices administered by the Veterans Benefits Administration (VBA).

A claimant begins the appellate process by filing a Notice of Disagreement (NOD) with the AOJ. Following receipt of the NOD, the AOJ furnishes the appellant with a Statement of the Case (SOC). The SOC provides a summary of the evidence considered in the case relating to the issue or issues covered in the NOD, a summary of the applicable laws and regulations with appropriate citations, and a discussion of how the laws and regulations affected the determination of the appellant's claim. Generally, a Supplemental Statement of the Case (SSOC) is furnished to the appellant when additional pertinent evidence is received after the SOC, when there was a material defect in the SOC, or when, for any other reason, the SOC is inadequate. (These bases apply to SSOCs as well as SOCs.)

Recently, we amended 38 CFR 19.31, part of VA's Appeals Regulations relating to the SSOC. 67 FR 3099, 3104 (January 23, 2002). As amended, that rule provides that a SSOC will not be used to announce the AOJ's decision on an issue not previously addressed in a SOC or to respond to a notice of disagreement on a newly appealed issue that was not addressed in the SOC. The purpose of that change was to help eliminate confusion on the part of appellants as to whether they must respond to a SSOC.

We are amending Rule 302(c) (38 CFR 20.302(c)) and Rule 501(c) (38 CFR 20.501(c)) of the Board's Rules of Practice for the purpose of creating uniformity of practice and procedure and to ensure that there is no misunderstanding as to whether an appellant needs to respond to a SSOC. Currently, Rules 302(c) and 501(c) provide, in pertinent part, that an appellant need not respond to a SSOC to perfect an appeal unless the SSOC covers issues that were not included in the original SOC. Those Rules further provide that, if a SSOC covers issues that were not included in the original SOC, an appellant must file a Substantive Appeal with respect to those issues within 60 days in order to perfect an appeal with respect to the additional issues. The changes made to 38 CFR 19.31 render the foregoing requirements superfluous and create the risk of causing confusion to the appellant and VA adjudicators.

Accordingly, we are amending Rule 302(c) and Rule 501(c) to eliminate the language relating to responding to “new issues” in Supplemental Statements of the Case.

Administrative Procedure Act

This final rule concerns agency organization, procedure or practice and, pursuant to 5 U.S.C. 553, is exempt from notice and comment requirements.

Unfunded Mandates

The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, 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 final rule will have no such effect on State, local, or tribal governments, or the private sector.

Paperwork Reduction Act

This final rule contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

Executive Order 12866

The Office of Management and Budget has reviewed this document under Executive Order 12866.

Regulatory Flexibility Act

The Secretary hereby certifies that this final rule will 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 will affect VA beneficiaries and will 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 requirement of sections 603 and 604.

List of Subjects in 38 CFR Part 20

• Administrative practice and procedure
• Authority delegations (Government agencies)
• Claims
• Lawyers
• Legal services
• Veterans

Approved: September 10, 2003.

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 (c) is amended by removing “appeal, unless the Supplemental Statement of the Case covers issues that were not included in the original Statement of the Case.” from the third sentence and adding, in its place, “appeal.”; and by removing the fourth sentence.

3. In § 20.501, paragraph (c), is amended by removing “appeal, unless the Supplemental Statement of the Case covers issues that were not included in the original Statement of the Case.” from the third sentence and adding, in its place, “appeal.”; and by removing the fourth sentence.