02-2428. Board of Veterans' Appeals: Rules of Practice-Appeal Withdrawal

AGENCY:

Department of Veterans Affairs.

ACTION:

Proposed rule.

SUMMARY:

The Department of Veterans Affairs (VA) proposes amending a Board of Veterans' Appeals Rule of Practice to remove an unnecessary restriction on who may withdraw an appeal to the Board of Veterans' Appeals and to clarify appeal withdrawal procedures.

DATES:

Comments must be received on or before April 2, 2002.

ADDRESSES:

Mail or hand-deliver written comments to: Director, Office of Regulations Management (02D), Department of Veterans Affairs, 810 Vermont Ave., NW., Room 1154, Washington, DC 20420; or fax comments to [phone]; or e-mail comments to “[e-mail]”. Comments should indicate that they are submitted in response to “RIN 2900-AK71.” All comments received will be available for public inspection in the Office of Regulations Management, Room 1158, between the hours of 8 a.m. and 4:30 p.m., Monday through Friday (except holidays).

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

Initial decisions on claims for Federal veterans' benefits are made at VA field offices throughout the nation. Claimants may appeal those decisions to the Board of Veterans' Appeals (Board).

Appellants may appoint a representative, typically a state or national veterans' service organization or an attorney-at-law, to assist them and act on their behalf throughout the appeal process. The Board's current Rule of Practice 204(c) (38 CFR 20.204(c)) bars an appellant's representative from withdrawing without the appellant's written consent a Notice of Disagreement or a Substantive Appeal (documents filed to initiate and to complete an appeal to the Board, respectively) that the appellant filed personally.

VA proposes removing the restriction on a representative's authority to withdraw an appeal. VA believes that the restriction, adopted in the early 1960s, is an outdated and unnecessary intrusion into the relationship between appellants and their representatives which creates needless delay through unnecessary procedural complexity. Appellants appoint representatives because of the representatives' expertise in making appropriate tactical decisions about how best to pursue the appellants' interests. They entrust the representatives with any number of important procedural decisions. While an appellant could contractually limit the authority of his or her representative, VA believes that those decisions are best left to the parties.

This proposed amendment would also fill in currently missing details about appeal withdrawal filing procedures, such as where to file, what to include in the filing, and the effect of filing. Among other things, an appellant or representative would file an appeal withdrawal with the local VA regional office, called the “agency of original jurisdiction” in the proposed rule, up until the time that they receive notice that the appeal has been transferred to the Board. (Such notice is required by 38 CFR 19.36.) Thereafter, they would file a withdrawal directly with the Board. The withdrawal would be effective when received by the agency of original jurisdiction up until the time the appeal is transferred to the Board. Thereafter, the withdrawal would be effective upon receipt by the Board.

VA also proposes removing the statement in the Board's current Rule of Practice 204(c) that the agency of original jurisdiction may not withdraw a Notice of Disagreement or a Substantive Appeal because the restriction would be covered under revised 38 CFR 20.204(a).

Paperwork Reduction Act

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

Executive Order 12866

This document has been reviewed by the Office of Management and Budget Under Executive Order 12866.

Regulatory Flexibility Act

The Secretary hereby certifies that this rule would 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, inasmuch as this rule applies to individual claimants for veterans' benefits and does not affect such entities. Therefore, pursuant to 5 U.S.C. 605(b), this rule is exempt from the initial and final regulatory flexibility analyses requirements of sections 603 and 604.

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 rule would have no consequential effect on State, local, or tribal governments.

Catalog of Federal Domestic Assistance

There is no Catalog of Federal Domestic Assistance number for this proposed rule.

List of Subjects in 38 CFR Part 20

• Administrative practice and procedure
• Claims
• Veterans

Approved: January 23, 2002.

Anthony J. Principi,

Secretary of Veterans Affairs.

For the reasons set out in the preamble, VA proposes amending 38 CFR part 20 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. Section 20.204 is revised to read as follows:

§ 20.204

Rule 204. Withdrawal of Appeal.

(a) When and by whom filed. Only an appellant, or an appellant's authorized representative, may withdraw an appeal. An appeal maybe withdrawn as to any or all issues involved in the appeal.

(b) Filing. (1) Form and content. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. They must include the name of the veteran, the name of the claimant or appellant if other than the veteran (e.g., a veteran's survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual's behalf), the applicable Department of Veterans Affairs file number, and a statement that the appeal is withdrawn. If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety, or list the issue(s) withdrawn from the appeal.

(2) Where to file. Appeal withdrawals should be filed with the agency of original jurisdiction until the appellant or representative filing the withdrawal receives notice that the appeal has been transferred to the Board. Thereafter, file the withdrawal at the following address: Director of Administrative Service (014), Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420.

(3) When effective. Until the appeal is transferred to the Board, an appeal withdrawal is effective when received by the agency of original jurisdiction. Thereafter, it is not effective until received by the Board. A withdrawal received by the Board after the Board issues a decision final under Rule 1100(a) (§ 20.1100(a) of this part) will not be effective.

(c) Effect of filing. Withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement and, if filed, the Substantive Appeal, as to all issues to which the withdrawal applies. Withdrawal does not preclude filing a new Notice of Disagreement and, after a Statement of the Case is issued, a new Substantive Appeal, as to any issue withdrawn, provided such filings would be timely under this section if the appeal withdrawn had never been filed.

(Authority: 38 U.S.C. 7105(b) and (d))