[Federal Register Volume 60, Number 93 (Monday, May 15, 1995)]
[Rules and Regulations]
[Pages 25850-25851]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-11888]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 20
RIN 2900-AH47
Rules of Practice: Waiver of Consideration of Evidence by Agency
of Original Jurisdiction
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: This document amends the Rules of Practice of the Board of
[[Page 25851]] Veterans' Appeals (Board) with respect to evidence
accepted by the Board after transfer of the record to the Board to
specify that an appellant's representative may waive the right to have
such evidence referred to the agency of original jurisdiction. This
amendment is necessary because there has been confusion as to whether
such a waiver may only be made by an appellant. This amendment is
intended to provide clarification and to be consistent with general
principles permitting use of representatives by VA claimants. Also,
this amendment will help expedite the handling of appeals.
EFFECTIVE DATE: May 15, 1995.
FOR FURTHER INFORMATION CONTACT: Steven L. Keller, Counsel to the
Chairman, Board of Veterans' Appeals, Department of Veterans Affairs,
810 Vermont Avenue, NW., Washington, DC 20420; (202) 233-2978.
SUPPLEMENTARY INFORMATION: The Board provides final appellate review
within the Department of Veterans Affairs (VA) of questions of law and
fact relating to benefit determinations concerning veterans, their
dependents, and their survivors. This document amends the Board's Rules
of Practice, which are set forth at 38 CFR Part 20.
When a case is appealed to the Board the evidence of record is
transferred to the Board for review. After the record has been
transferred to the Board, additional evidence may be received and
accepted by the Board under Sec. 20.1304 of the Board's Rules of
Practice and Sec. 19.37(b) of the Board's Appeals Regulations (38 CFR
Part 19).
With respect to such ``additional evidence,'' 38 CFR 20.1304(c),
immediately prior to the effective date of this document, stated:
(c) Consideration of additional evidence by agency of original
jurisdiction. Any pertinent evidence submitted by the appellant or
representative which is accepted by the Board under the provisions
of this section, as well as any such evidence referred to the Board
by the originating agency under Sec. 19.37(b) of this chapter, must
be referred to the agency of original jurisdiction for review and
preparation of a Supplemental Statement of the Case unless this
procedural right is waived by the appellant or unless the Board
determines that the benefit, or benefits, to which the evidence
relates may be allowed on appeal without such referral. Such waiver
must be in writing or, if a hearing on appeal is conducted, formally
entered on the record orally at the time of the hearing.
This document amends Sec. 20.1304(c) to specify that the appellant
``or representative,'' and not solely the appellant, may waive the
right to have the additional evidence referred to the ``agency of
original jurisdiction for review and preparation of a Supplemental
Statement of the Case.''
This amendment is necessary because there has been confusion as to
whether such a waiver may only be made by an appellant. This amendment
is intended to provide clarification and to be consistent with general
principles permitting use of representatives by VA claimants. Also,
this amendment will help expedite the handling of appeals.
This final rule concerns agency procedure or practice and,
consequently, pursuant to 5 U.S.C. 553 is exempt from notice and
comment requirements.
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
requirements of sections 603 and 604.
List of Subjects in 38 CFR Part 20
Administrative practice and procedure, Claims, Lawyers, Legal
services, Veterans.
Approved: May 2, 1995.
Jesse Brown,
Secretary of Veterans Affairs.
For the reasons set out in the preamble, 38 CFR Part 20 is amended
as set forth below:
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).
Sec. 20.1304 [Amended]
2. In Sec. 20.1304, the first sentence in paragraph (c) is amended
by adding ``or representative'' immediately after ``unless this
procedural right is waived by the appellant''.
[FR Doc. 95-11888 Filed 5-12-95; 8:45 am]
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