38 USC Ch. 71: BOARD OF VETERANS' APPEALS

From Title 38—VETERANS' BENEFITSPART V—BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 71—BOARD OF VETERANS' APPEALS

Sec.

7101.

Composition of Board of Veterans' Appeals.

7101A.

Members of Board: appointment; pay; performance review.

7102.

Assignment of members of Board.

7103.

Reconsideration; correction of obvious errors.

7104.

Jurisdiction of the Board; decisions; notice.

7105.

Filing of appeal.

7105A.

Simultaneously contested claims.

[7106.

Repealed.]

7107.

Appeals: dockets; hearings.

7108.

Rejection of applications.

[7109.

Repealed.]

[7110.

Repealed.]

7111.

Revision of decisions on grounds of clear and unmistakable error.

7112.

Expedited treatment of certain claims.

7113.

Evidentiary record before the Board of Veterans' Appeals.

Editorial Notes

Amendments

2022—Pub. L. 117–300, §2(a)(2)(B), Dec. 27, 2022, 136 Stat. 4380, added item 7112 and struck out former item 7112 "Expedited treatment of remanded claims".

Pub. L. 117–168, §1(b)(2), title VIII, §807(a)(5)(A), Aug. 10, 2022, 136 Stat 1759, 1806, inserted "; decisions; notice" after "Board" in item 7104.

2017—Pub. L. 115–55, §2(q)(2), (s)(2), (u)(3), (w)(3), Aug. 23, 2017, 131 Stat. 1112, 1113, 1115, substituted "Filing of appeal" for "Filing of notice of disagreement and appeal" in item 7105, struck out items 7106 "Administrative appeals" and 7109 "Independent medical opinions", and added item 7113.

2003—Pub. L. 108–183, title VII, §707(b)(2), Dec. 16, 2003, 117 Stat. 2673, added item 7112.

1997—Pub. L. 105–111, §1(b)(2), Nov. 21, 1997, 111 Stat. 2272, added item 7111.

1994—Pub. L. 103–446, title II, §201(a)(2), Nov. 2, 1994, 108 Stat. 4656, added item 7101A.

Pub. L. 103–271, §§6(b), 7(a)(2), (b)(3), July 1, 1994, 108 Stat. 742, 743, substituted "Reconsideration; correction of obvious errors" for "Determinations by the Board" in item 7103, substituted "Appeals: dockets; hearings" for "Docketing of appeals" in item 7107, and struck out item 7110 "Traveling sections".

1991—Pub. L. 102–40, title IV, §402(c)(1), May 7, 1991, 105 Stat. 239, renumbered items 4001 to 4010 as 7101 to 7110, respectively.

1988—Pub. L. 100–687, div. A, title II, §207(b), Nov. 18, 1988, 102 Stat. 4112, added item 4010.

1962—Pub. L. 87–671, §3, Sept. 19, 1962, 76 Stat. 557, added item 4009.

Pub. L. 87–666, §2, Sept. 19, 1962, 76 Stat. 554, added item 4005A, and substituted "Filing of notice of disagreement and appeal" for "Applications for review on appeal" in item 4005, "Administrative appeals" for "Docketing of appeals" in item 4006, and "Docketing of appeals" for "Simultaneously contested claims" in item 4007.

§7101. Composition of Board of Veterans' Appeals

(a) There is in the Department a Board of Veterans' Appeals (hereinafter in this chapter referred to as the "Board"). The Board is under the administrative control and supervision of a chairman directly responsible to the Secretary. The Board shall consist of a Chairman, a Vice Chairman, and such number of members as may be found necessary in order to conduct hearings and dispose of appeals properly before the Board in a timely manner. The Board shall have such other professional, administrative, clerical, and stenographic personnel as are necessary in conducting hearings and considering and disposing of appeals properly before the Board. The Board shall have sufficient personnel under the preceding sentence to enable the Board to conduct hearings and consider and dispose of appeals properly before the Board in a timely manner.

(b)(1) The Chairman shall be appointed by the President, by and with the advice and consent of the Senate, for a term of six years. The Chairman shall be subject to the same ethical and legal limitations and restrictions concerning involvement in political activities as apply to judges of the United States Court of Appeals for Veterans Claims.

(2) The Chairman may be removed by the President for misconduct, inefficiency, neglect of duty, or engaging in the practice of law or for physical or mental disability which, in the opinion of the President, prevents the proper execution of the Chairman's duties. The Chairman may not be removed from office by the President on any other grounds. Any such removal may only be made after notice and opportunity for hearing.

(3) The Chairman may be appointed under this subsection to more than one term. If, upon the expiration of the term of office for which the Chairman was appointed, the position of Chairman would become vacant, the individual serving as Chairman may, with the approval of the Secretary, continue to serve as Chairman until either appointed to another term or a successor is appointed, but not beyond the end of the Congress during which the term of office expired.

(4) The Secretary shall designate one member of the Board as Vice Chairman. The Vice Chairman shall perform such functions as the Chairman may specify. Such member shall serve as Vice Chairman at the pleasure of the Secretary.

(c)(1)(A) The Chairman may from time to time designate one or more employees of the Department to serve as acting members of the Board. Except as provided in subparagraph (B), any such designation shall be for a period not to exceed 90 days, as determined by the Chairman.

(B) An individual designated as an acting member of the Board may continue to serve as an acting member of the Board in the making of any determination on a proceeding for which the individual was designated as an acting member of the Board, notwithstanding the termination of the period of designation of the individual as an acting member of the Board under subparagraph (A) or (C).

(D) At no time may the number of acting members exceed 20 percent of the total of the number of Board members and acting Board members combined.

(2) In each annual report to the Congress under section 529 of this title, the Secretary shall provide detailed descriptions of the activities undertaken and plans made in the fiscal year for which the report is made with respect to the authority provided by paragraph (1) of this subsection. In each such report, the Secretary shall indicate, in terms of full-time employee equivalents, the number of acting members of the Board designated under such paragraph (1) during the year for which the report is made.

(d)(1) After the end of each fiscal year, the Chairman shall prepare a report on the activities of the Board during that fiscal year and the projected activities of the Board for the fiscal year during which the report is prepared and the next fiscal year. Such report shall be included in the documents providing detailed information on the budget for the Department that the Secretary submits to the Congress in conjunction with the President's budget submission for any fiscal year pursuant to section 1105 of title 31.

(2) Each such report shall include, with respect to the preceding fiscal year, information specifying—

(A) the number of cases appealed to the Board during that year;

(B) the number of cases pending before the Board at the beginning and at the end of that year;

(D) the average length of time a case was before the Board between the time of the filing of an appeal and the disposition during the preceding fiscal year;

(E) the number of members of the Board at the end of the year and the number of professional, administrative, clerical, stenographic, and other personnel employed by the Board at the end of the preceding fiscal year;

(F) the number of employees of the Department designated under subsection (c)(1) to serve as acting members of the Board during that year and the number of cases in which each such member participated during that year; and

(G) with respect to hearings scheduled under section 7107(c)(2)(C) of this title—

(i) the number of hearings scheduled under such section;

(ii) the number of hearings under such section that were cancelled; and

(iii) any statistical difference in outcomes between cases heard under such section and those held at the principal location of the Board or by picture and voice transmission at a facility of the Department.

(3) The projections in each such report for the current fiscal year and for the next fiscal year shall include (for each such year)—

(A) an estimate of the number of cases to be appealed to the Board; and

(B) an evaluation of the ability of the Board (based on existing and projected personnel levels) to ensure timely disposition of such appeals as required by section 7101(a) of this title.

(e) A performance incentive that is authorized by law for officers and employees of the Federal Government may be awarded to a member of the Board (including an acting member) by reason of that member's service on the Board only if the Chairman of the Board determines that such member should be awarded that incentive. A determination by the Chairman for such purpose shall be made taking into consideration the quality of performance of the Board member.

(Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1240, §4001; Pub. L. 98–223, title II, §208(a)–(c), Mar. 2, 1984, 98 Stat. 43, 44; Pub. L. 100–687, div. A, title II, §§201(a), 202(b), 208, 209, Nov. 18, 1988, 102 Stat. 4109, 4110, 4112; renumbered §7101 and amended Pub. L. 102–40, title IV, §402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 102–54, §14(e)(2), June 13, 1991, 105 Stat. 287; Pub. L. 102–83, §§2(c)(3), 4(a)(3), (4), (b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 402, 404, 405; Pub. L. 103–271, §§2–5, July 1, 1994, 108 Stat. 740, 741; Pub. L. 103–446, title II, §§201(d), 203, Nov. 2, 1994, 108 Stat. 4657; Pub. L. 105–368, title V, §512(a)(1), Nov. 11, 1998, 112 Stat. 3341; Pub. L. 107–14, §8(a)(16), June 5, 2001, 115 Stat. 35; Pub. L. 116–137, §2(c)(1), Apr. 10, 2020, 134 Stat. 616.)

Editorial Notes

Amendments

2020—Subsec. (d)(2)(G). Pub. L. 116–137 added subpar. (G).

2001—Subsec. (a). Pub. L. 107–14 substituted "hereinafter" for "hereafter".

1998—Subsec. (b)(1). Pub. L. 105–368 substituted "Court of Appeals for Veterans Claims" for "Court of Veterans Appeals".

1994—Subsec. (a). Pub. L. 103–271, §2, struck out "(not more than 65)" after "such number".

Subsec. (b). Pub. L. 103–446, §201(d)(1), (2), designated as par. (2) the text in par. (1) beginning "The Chairman may be removed" and struck out former par. (2) which read as follows:

"(2)(A) The other members of the Board (including the Vice Chairman) shall be appointed by the Secretary, with the approval of the President, based upon recommendations of the Chairman. Each such member shall be appointed for a term of nine years.

"(B) A member of the Board (other than the Chairman) may be removed by the Secretary upon the recommendation of the Chairman. In the case of a removal that would be covered by section 7521 of title 5 in the case of an administrative law judge, a removal of a member of the Board under this paragraph shall be carried out subject to the same requirements as apply to removal of an administrative law judge under that section. Section 554(a)(2) of title 5 shall not apply to a removal action under this subparagraph. In such a removal action, a member shall have the rights set out in section 7513(b) of such title."

Subsec. (b)(1). Pub. L. 103–271, §3, inserted after first sentence "The Chairman shall be subject to the same ethical and legal limitations and restrictions concerning involvement in political activities as apply to judges of the United States Court of Veterans Appeals."

Subsec. (b)(3). Pub. L. 103–446, §§201(d)(3), 203, substituted "The Chairman" for "Members (including the Chairman)" and inserted at end "If, upon the expiration of the term of office for which the Chairman was appointed, the position of Chairman would become vacant, the individual serving as Chairman may, with the approval of the Secretary, continue to serve as Chairman until either appointed to another term or a successor is appointed, but not beyond the end of the Congress during which the term of office expired."

Subsec. (c)(1). Pub. L. 103–271, §4(a)(1), added par. (1) and struck out former par. (1) which read as follows: "Subject to paragraph (2) of this subsection, the Chairman may from time to time designate employees of the Department to serve as temporary members of the Board. Any such designation shall be for a period of not to exceed one year, as determined by the Chairman. An individual may not serve as a temporary member of the Board for more than 24 months during any 48-month period."

Subsec. (c)(2), (3). Pub. L. 103–271, §4(a)(2)–(4), redesignated par. (3) as (2), substituted "the number of acting members of the Board designated under such paragraph (1) during the year for which the report is made." for "the number of temporary Board members designated under this subsection and the number of acting Board members designated under section 7102(a)(2)(A)(ii) of this title during the year for which the report is made.", and struck out former par. (2) which read as follows: "Designation under paragraph (1) of this subsection of an individual as a temporary member of the Board may not be made when there are fewer than 65 members of the Board."

Subsec. (d)(2)(F). Pub. L. 103–271, §5, added subpar. (F).

Subsec. (d)(3)(B). Pub. L. 103–271, §4(b)(2), substituted "section 7101(a)" for "section 7103(d)".

Subsec. (e). Pub. L. 103–271, §4(b)(1), substituted "an acting member" for "a temporary or acting member".

1991—Pub. L. 102–40, §402(b)(1), renumbered section 4001 of this title as this section.

Subsec. (a). Pub. L. 102–83, §4(b)(1), (2)(E), substituted "Secretary" for "Administrator".

Pub. L. 102–83, §4(a)(3), (4), substituted "Department" for "Veterans' Administration".

Pub. L. 102–54 amended subsec. (a) as in effect immediately before the enactment of Pub. L. 102–40 by substituting "There is" for "There shall be" and ". The Board is under the administrative" for "under the administrative".

Subsec. (b)(2), (4). Pub. L. 102–83, §4(b)(1), (2)(E), substituted "Secretary" for "Administrator" wherever appearing.

Subsec. (c)(1). Pub. L. 102–83, §4(a)(3), (4), substituted "Department" for "Veterans' Administration".

Subsec. (c)(3). Pub. L. 102–83, §4(b)(1), (2)(E), substituted "Secretary" for "Administrator" in two places.

Pub. L. 102–83, §2(c)(3), substituted "section 529" for "section 214".

Pub. L. 102–40, §402(d)(1), substituted "7102(a)(2)(A)(ii)" for "4002(a)(2)(A)(ii)".

Subsec. (d)(1). Pub. L. 102–83, §4(b)(1), (2)(E), substituted "Secretary" for "Administrator".

Pub. L. 102–83, §4(a)(3), (4), substituted "Department" for "Veterans' Administration".

Subsec. (d)(3)(B). Pub. L. 102–40, §402(d)(1), substituted "7103(d)" for "4003(d)".

1988—Subsec. (a). Pub. L. 100–687, §202(b), inserted "and" after "Vice Chairman," substituted "necessary in order to conduct hearings and dispose of appeals properly before the Board in a timely manner. The Board shall have" for "necessary, and", and inserted provisions which required that Board have sufficient personnel to conduct hearings and consider and dispose of appeals.

Subsec. (b). Pub. L. 100–687, §201(a), amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: "Members of the Board (including the Chairman and Vice Chairman) shall be appointed by the Administrator with the approval of the President."

Subsec. (d). Pub. L. 100–687, §208, added subsec. (d).

Subsec. (e). Pub. L. 100–687, §209, added subsec. (e).

1984—Subsec. (a). Pub. L. 98–223, §208(a), (c), substituted "65" for "fifty" and struck out "associate" before "members".

Subsec. (c). Pub. L. 98–223, §208(b), added subsec. (c).

Statutory Notes and Related Subsidiaries

Effective Date of 1998 Amendment

Amendment by Pub. L. 105–368 effective on first day of first month beginning more than 90 days after Nov. 11, 1998, see section 513 of Pub. L. 105–368, set out as a note under section 7251 of this title.

Effective Date of 1988 Amendment

Amendment by section 201(a) of Pub. L. 100–687 effective Feb. 1, 1989, amendment by section 202(b) of Pub. L. 100–687 effective Jan. 1, 1989, and amendment by sections 208 and 209 of Pub. L. 100–687 effective Nov. 18, 1988, see section 401(b)–(d) of Pub. L. 100–687, set out as an Effective Date note under section 7251 of this title.

One-Time Reporting Requirements

Pub. L. 116–137, §2(c)(2), Apr. 10, 2020, 134 Stat. 617, provided that: "The first report required to be submitted under section 7101(d) of title 38, United States Code, shall include the following information with respect to hearings scheduled under subparagraph (C) of paragraph (2) of subsection (c) of section 7101 [probably should be "7107"] of such title, as added by subsection (a):

"(A) An outline of the outreach the Secretary of Veterans Affairs plans to conduct to inform veterans, families of veterans, survivors of veterans, veterans service organizations, military service organizations, congressional caseworkers, advocates for veterans, and such other stakeholders as the Secretary considers appropriate about hearings scheduled under such subparagraph, including—

"(i) a description of the resources required to conduct such outreach;

"(ii) a timeline for conducting such outreach; and

"(iii) information related to the advantages and potential technological challenges of conducting hearings under such subparagraph.

"(B) A description of any modifications to the information technology systems of the Veterans Benefits Administration and the Board of Veterans' Appeals required to carry out hearings under such subparagraph, including cost estimates and a timeline for making such modifications.

"(C) A detailed description of the intra-agency partnership between the Board of Veterans' Appeals and the telehealth program of the Veterans Health Administration as the Board conducts hearings under such subparagraph, including best practices, a risk assessment overview, risk mitigation efforts, and a plan for ongoing collaboration and information sharing."

Board of Veterans' Appeals

Pub. L. 100–687, div. A, title II, §201(c), (d), Nov. 18, 1988, 102 Stat. 4109, 4110, provided that:

"(c) Transition to New Board.—(1) Appointments of members of the Board of Veterans' Appeals under subsection (b)(2) of section 4001 [now 7101] of title 38, United States Code (as amended by subsection (a)), may not be made until a Chairman is appointed under subsection (b)(1) of that section.

"(2) An individual who is serving as a member of the Board on the date of the enactment of this Act [Nov. 18, 1988] may continue to serve as a member until the earlier of—

"(A) the date on which the individual's successor (as designated by the Administrator) is appointed under subsection (b)(2) of that section, or

"(B) the end of the 180-day period beginning on the day after the date on which the Chairman is appointed under subsection (b)(1) of such section.

"(d) Initial Terms of Office.—Notwithstanding the second sentence of section 4001(b)(2) [now 7101(b)(2)] of title 38, United States Code (as amended by subsection (a)), specifying the term for which members of the Board of Veterans' Appeals shall be appointed, of the members first appointed under that section—

"(A) 22 shall be appointed for a term of three years;

"(B) 22 shall be appointed for a term of six years; and

"(C) 22 shall be appointed for a term of nine years,

as determined by the Administrator [now Secretary] at the time of the initial appointments."

§7101A. Members of Board: appointment; pay; performance review

(a)(1) The members of the Board of Veterans' Appeals other than the Chairman (and including the Vice Chairman) shall be appointed by the Secretary, with the approval of the President, based upon recommendations of the Chairman.

(2) Each member of the Board shall be a member in good standing of the bar of a State.

(b) Members of the Board (other than the Chairman and any member of the Board who is a member of the Senior Executive Service) shall, in accordance with regulations prescribed by the Secretary, be paid basic pay at rates equivalent to the rates payable under section 5372 of title 5.

(c)(1)(A) The Chairman shall establish a panel to review the performance of members of the Board. The panel shall be comprised of the Chairman and two other members of the Board (other than the Vice Chairman). The Chairman shall periodically rotate membership on the panel so as to ensure that each member of the Board (other than the Vice Chairman) serves as a member of the panel for and within a reasonable period.

(B) Not less than one year after the job performance standards under subsection (f) are initially established, and not less often than once every three years thereafter, the performance review panel shall determine, with respect to each member of the Board (other than the Chairman or a member who is a member of the Senior Executive Service), whether that member's job performance as a member of the Board meets the performance standards for a member of the Board established under subsection (f). Each such determination shall be in writing.

(2) If the determination of the performance review panel in any case is that the member's job performance as a member of the Board meets the performance standards for a member of the Board established under subsection (f), the Chairman shall recertify the member's appointment as a member of the Board.

(3) If the determination of the performance review panel in any case is that the member's job performance does not meet the performance standards for a member of the Board established under subsection (f), the Chairman shall, based upon the individual circumstances, either—

(A) grant the member a conditional recertification; or

(B) recommend to the Secretary that the member be noncertified.

(4) In the case of a member of the Board who is granted a conditional recertification under paragraph (3)(A) or (5)(A), the performance review panel shall review the member's job performance record and make a further determination under paragraph (1) concerning that member not later than one year after the date of the conditional recertification. If the determination of the performance review panel at that time is that the member's job performance as a member of the Board still does not meet the performance standards for a member of the Board established under subsection (f), the Chairman shall recommend to the Secretary that the member be noncertified.

(5) In a case in which the Chairman recommends to the Secretary under paragraph (3) or (4) that a member be noncertified, the Secretary, after considering the recommendation of the Chairman, may either—

(A) grant the member a conditional recertification; or

(B) determine that the member should be noncertified.

(d)(1) If the Secretary, based upon the recommendation of the Chairman, determines that a member of the Board should be noncertified, that member's appointment as a member of the Board shall be terminated and that member shall be removed from the Board.

(2)(A) Upon removal from the Board under paragraph (1) of a member of the Board who before appointment to the Board served as an attorney in the civil service, the Secretary shall appoint that member to an attorney position at the Board, if the removed member so requests. If the removed member served in an attorney position at the Board immediately before appointment to the Board, appointment to an attorney position under this paragraph shall be in the grade and step held by the removed member immediately before such appointment to the Board.

(B) The Secretary is not required to make an appointment to an attorney position under this paragraph if the Secretary determines that the member of the Board removed under paragraph (1) is not qualified for the position.

(e)(1) A member of the Board (other than the Chairman or a member of the Senior Executive Service) may be removed as a member of the Board by reason of job performance only as provided in subsections (c) and (d). Such a member may be removed by the Secretary, upon the recommendation of the Chairman, for any other reason as determined by the Secretary.

(2) In the case of a removal of a member under this section for a reason other than job performance that would be covered by section 7521 of title 5 in the case of an administrative law judge, the removal of the member of the Board shall be carried out subject to the same requirements as apply to removal of an administrative law judge under that section. Section 554(a)(2) of title 5 shall not apply to a removal action under this subsection. In such a removal action, a member shall have the rights set out in section 7513(b) of that title.

(f) The Chairman, subject to the approval of the Secretary, shall establish standards for the performance of the job of a member of the Board (other than the Chairman or a member of the Senior Executive Service). Those standards shall establish objective and fair criteria for evaluation of the job performance of a member of the Board.

(g) The Secretary shall prescribe procedures for the administration of this section, including deadlines and time schedules for different actions under this section.

(Added Pub. L. 103–446, title II, §201(a)(1), Nov. 2, 1994, 108 Stat. 4655; amended Pub. L. 105–368, title X, §1002, Nov. 11, 1998, 112 Stat. 3363.)

Editorial Notes

Amendments

1998—Subsec. (a). Pub. L. 105–368, §1002(a), designated existing provisions as par. (1) and added par. (2).

Subsec. (d)(2). Pub. L. 105–368, §1002(b), amended par. (2) generally. Prior to amendment, par. (2) read as follows: "Upon removal from the Board under paragraph (1), a member of the Board (other than the Chairman) who was a career or career-conditional employee in the civil service before commencement of service as a member of the Board shall revert to the civil service grade and series held by the member immediately before the appointment of the member to the Board."

Statutory Notes and Related Subsidiaries

Effective Date

Pub. L. 103–446, title II, §201(c), Nov. 2, 1994, 108 Stat. 4657, provided that: "Section 7101A(b) of title 38, United States Code, as added by subsection (a), shall take effect on the first day of the first pay period beginning after December 31, 1994."

Save Pay Provision

Pub. L. 103–446, title II, §201(b), Nov. 2, 1994, 108 Stat. 4656, provided that: "The rate of basic pay payable to an individual who is a member of the Board of Veterans' Appeals on the date of the enactment of this Act [Nov. 2, 1994] may not be reduced by reason of the amendments made by this section [enacting this section and amending section 7101 of this title] to a rate below the rate payable to such individual on the day before such date."

Deadline for Establishment of Performance Evaluation Criteria for Board Members

Pub. L. 103–446, title II, §202, Nov. 2, 1994, 108 Stat. 4657, provided that:

"(a) Deadline.—The job performance standards required to be established by section 7101A(f) of title 38, United States Code, as added by section 201(a), shall be established not later than 90 days after the date of the enactment of this Act [Nov. 2, 1994].

"(b) Submission to Congressional Committees.—Not later than the date on which the standards referred to in subsection (a) take effect, the Secretary of Veterans Affairs shall submit to the Committees on Veterans' Affairs of the Senate and House of Representatives a report describing the standards established by the Chairman of the Board of Veterans' Appeals."

§7102. Assignment of members of Board

(a) A proceeding instituted before the Board may be assigned to an individual member of the Board or to a panel of not less than three members of the Board. A member or panel assigned a proceeding shall make a determination thereon, including any motion filed in connection therewith. The member or panel, as the case may be, shall make a report under section 7104(d) of this title on any such determination, which report shall constitute the final disposition of the proceeding by the member or panel.

(b) A proceeding may not be assigned to the Chairman as an individual member. The Chairman may participate in a proceeding assigned to a panel or in a reconsideration assigned to a panel of members.

(c)(1) The Secretary shall ensure that there is offered to each member of the Board an annual training on military sexual trauma and proceedings that concern a claim for compensation based on military sexual trauma experienced by a veteran.

(2) A proceeding that concerns a claim specified in paragraph (1) may not be assigned to an individual member of the Board or to a panel of members unless the individual member, or each member of the panel, as the case may be, has completed the annual training most recently offered to that member pursuant to such paragraph.

(3) In this subsection, the term "military sexual trauma" has the meaning given that term in section 1166(c) of this title.

(Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1241, §4002; Pub. L. 98–223, title II, §208(c), (d), Mar. 2, 1984, 98 Stat. 44; renumbered §7102 and amended Pub. L. 102–40, title IV, §402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 102–83, §4(a)(3), (4), Aug. 6, 1991, 105 Stat. 404; Pub. L. 103–271, §6(a), July 1, 1994, 108 Stat. 741; Pub. L. 117–300, §1(a), Dec. 27, 2022, 136 Stat. 4379.)

Editorial Notes

Amendments

2022—Subsec. (c). Pub. L. 117–300 added subsec. (c).

1994—Pub. L. 103–271 amended section generally, substituting present provisions for provisions authorizing Chairman to divide Board into sections of three members and to assign proceedings thereto, and provisions relating to assignment where section is composed of fewer than three members, limiting annual period of service, prohibiting more than one member to be a temporary or acting member, and relating to hearing docket and report of determination.

1991—Pub. L. 102–40, §402(b)(1), renumbered section 4002 of this title as this section.

Subsec. (a)(2)(A)(ii). Pub. L. 102–83 substituted "Department" for "Veterans' Administration".

Subsec. (a)(3). Pub. L. 102–40, §402(d)(1), substituted "7101(c)" for "4001(c)".

1984—Subsec. (a)(1). Pub. L. 98–223, §208(d)(1), designated provision authorizing the Chairman from time to time to divide the Board into sections of three members, assign members to the Board thereto, and designated the chief thereof, as par. (1).

Subsec. (a)(2). Pub. L. 98–223, §208(d)(2), designated provision relating to authority of the Chairman in the case where a section is composed of fewer than three members as a result of absence, vacancy, or inability of a member to serve as subpar. (A), and in subpar. (A) as so designated, inserted provision authorizing the Chairman to designate an employee of the Veterans' Administration to serve as an acting member of the Board on such section for a period of not to exceed 90 days, and added subpar. (B).

Subsec. (a)(3). Pub. L. 98–223, §208(d)(2), added par. (3).

Subsec. (b). Pub. L. 98–223, §208(d)(3), designated provision relating to the maintenance of a hearing docket and the holding of formal recorded hearings upon which a final determination will be made as subsec. (b).

Pub. L. 98–223, §208(c), struck out "associate" before "member" in two places.

Subsec. (c). Pub. L. 98–223, §208(d)(4), designated provision relating to the section making a determination on any proceeding or motion in connection therewith assigned to the section by the Board and making a report on such determination, which report constitutes its final disposition of the proceeding, as subsec. (c).

Statutory Notes and Related Subsidiaries

First Training

Pub. L. 117–300, §1(b), Dec. 27, 2022, 136 Stat. 4379, provided that: "The Secretary of Veterans Affairs shall ensure that each member of the Board of Veterans' Appeals is offered the first annual training under section 7102(c) of title 38, United States Code, as amended by subsection (a), by not later than 180 days after the date of the enactment of this Act [Dec. 27, 2022]."

Applicability of Limitation Under Subsection (c)(2)

Pub. L. 117–300, §1(c), Dec. 27, 2022, 136 Stat. 4379, provided that: "The limitation under section 7102(c)(2) of title 38, United States Code, as added by subsection (a), shall apply with respect to the assignment of proceedings on or after the date that is 180 days after the date of the enactment of this Act [Dec. 27, 2022]."

§7103. Reconsideration; correction of obvious errors

(a) The decision of the Board determining a matter under section 7102 of this title is final unless the Chairman orders reconsideration of the decision in accordance with subsection (b). Such an order may be made on the Chairman's initiative or upon motion of the claimant.

(b)(1) Upon the order of the Chairman for reconsideration of the decision in a case, the case shall be referred—

(A) in the case of a matter originally decided by a single member of the Board, to a panel of not less than three members of the Board; or

(B) in the case of a matter originally decided by a panel of members of the Board, to an enlarged panel of the Board.

(2) A panel referred to in paragraph (1) may not include the member, or any member of the panel, that made the decision subject to reconsideration.

(3) A panel reconsidering a case under this subsection shall render its decision after reviewing the entire record before the Board. The decision of the panel shall be made by a majority vote of the members of the panel. The decision of the panel shall constitute the final decision of the Board.

(c) The Board on its own motion may correct an obvious error in the record, without regard to whether there has been a motion or order for reconsideration.

(Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1241, §4003; Pub. L. 100–687, div. A, title II, §202(a), Nov. 18, 1988, 102 Stat. 4110; renumbered §7103, Pub. L. 102–40, title IV, §402(b)(1), May 7, 1991, 105 Stat. 238; Pub. L. 103–271, §6(a), July 1, 1994, 108 Stat. 741; Pub. L. 115–55, §2(o), Aug. 23, 2017, 131 Stat. 1111.)

Editorial Notes

Amendments

2017—Subsec. (b)(1). Pub. L. 115–55 substituted "decided" for "heard" in subpars. (A) and (B).

1994—Pub. L. 103–271 amended section generally. Prior to amendment, text read as follows:

"(a) Decisions by a section of the Board shall be made by a majority of the members of the section. The decision of the section is final unless the Chairman orders reconsideration of the case.

"(b) If the Chairman orders reconsideration in a case, the case shall upon reconsideration be heard by an expanded section of the Board. When a case is heard by an expanded section of the Board after such a motion for reconsideration, the decision of a majority of the members of the expanded section shall constitute the final decision of the Board.

"(c) Notwithstanding subsections (a) and (b) of this section, the Board on its own motion may correct an obvious error in the record."

1991—Pub. L. 102–40 renumbered section 4003 of this title as this section.

1988—Pub. L. 100–687, in amending section generally, added subsec. (a), struck out former subsec. (a) which provided that determination of section, when unanimous, be final determination of Board, added subsec. (b), struck out former subsec. (b) which provided that when there is disagreement among members of section, concurrence of Chairman with majority of members of section shall constitute final determination of Board, and added subsec. (c).

Statutory Notes and Related Subsidiaries

Effective Date of 2017 Amendment

Amendment by Pub. L. 115–55 applicable to all claims for which the Secretary of Veterans Affairs provides notice of a decision under section 5104 of this title on or after the later of 540 days after Aug. 23, 2017, or 30 days after the date on which the Secretary submits to Congress a certification of certain capabilities of the Department of Veterans Affairs to carry out the new appeals system established by Pub. L. 115–55 and to address appeals of decisions on legacy claims, with provision for early applicability of the new appeals system to certain claims, see section 2(x) of Pub. L. 115–55, set out as a note under section 101 of this title, and bracketed note thereunder.

Effective Date of 1988 Amendment

Amendment by Pub. L. 100–687 effective Jan. 1, 1989, see section 401(d) of Pub. L. 100–687, set out as an Effective Date note under section 7251 of this title.

§7104. Jurisdiction of the Board; decisions; notice

(a) All questions in a matter which under section 511(a) of this title is subject to decision by the Secretary shall be subject to one review on appeal to the Secretary. Final decisions on such appeals shall be made by the Board. Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record and applicable provisions of law and regulation.

(b) Except as provided in section 5108 of this title, when a claim is disallowed by the Board, the claim may not thereafter be readjudicated and allowed and a claim based upon the same factual basis may not be considered.

(c) The Board shall be bound in its decisions by the regulations of the Department, instructions of the Secretary, and the precedent opinions of the chief legal officer of the Department.

(d) Each decision of the Board shall include—

(1) a written statement of the Board's findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record;

(2) a general statement—

(A) reflecting whether evidence was not considered in making the decision because the evidence was received at a time when not permitted under section 7113 of this title; and

(B) noting such options as may be available for having the evidence considered by the Department; and

(3) an order granting appropriate relief or denying relief.

(e) After reaching a decision on an appeal, the Board shall promptly issue notice (as that term is defined in section 5100 of this title) of such decision to the following:

(1) The appellant.

(2) Any other party with a right to notice of such decision.

(3) Any authorized representative of the appellant or party described in paragraph (2).

(f)(1) The Secretary may provide notice under subsection (e) electronically if a claimant (or the claimant's representative) elects to receive such notice electronically.

(2) A claimant (or the claimant's representative) may revoke such an election at any time, by means prescribed by the Secretary.

(Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1241, §4004; Pub. L. 87–97, §1, July 20, 1961, 75 Stat. 215; Pub. L. 100–687, div. A, title I, §101(b), title II, §§203(a), 204, 205, Nov. 18, 1988, 102 Stat. 4106, 4110, 4111; renumbered §7104 and amended Pub. L. 102–40, title IV, §402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 102–54, §14(g)(2), June 13, 1991, 105 Stat. 288; Pub. L. 102–83, §4(a)(3), (4), (b)(1), (2)(E), (c), Aug. 6, 1991, 105 Stat. 404–406; Pub. L. 103–271, §§7(b)(1), 8, July 1, 1994, 108 Stat. 743; Pub. L. 104–275, title V, §509, Oct. 9, 1996, 110 Stat. 3344; Pub. L. 115–55, §2(p), (w)(2), Aug. 23, 2017, 131 Stat. 1111, 1114; Pub. L. 117–168, title VIII, §807(a)(5), Aug. 10, 2022, 136 Stat. 1806.)

Editorial Notes

Amendments

2022—Pub. L. 117–168, §807(a)(5)(A), inserted "; decisions; notice" after "Board" in section catchline.

Subsecs. (e), (f). Pub. L. 117–168, §807(a)(5)(B), added subsecs. (e) and (f) and struck out former subsec. (e) which related to mailing a copy of a written decision to the claimant or mailing or otherwise sending a copy to an authorized representative of the claimant.

2017—Subsec. (b). Pub. L. 115–55, §2(p), substituted "readjudicated" for "reopened".

Subsec. (d)(2), (3). Pub. L. 115–55, §2(w)(2), added par. (2) and redesignated former par. (2) as (3).

1996—Subsec. (e). Pub. L. 104–275 amended subsec. (e) generally. Prior to amendment, subsec. (e) read as follows: "After reaching a decision in a case, the Board shall promptly mail a copy of its written decision to the claimant and the claimant's authorized representative (if any) at the last known address of the claimant and at the last known address of such representative (if any)."

1994—Subsec. (a). Pub. L. 103–271, §8, substituted "511(a)" for "211(a)".

Pub. L. 103–271, §7(b)(1), struck out after second sentence "The Board shall decide any such appeal only after affording the claimant an opportunity for a hearing."

1991—Pub. L. 102–40, §402(b)(1), renumbered section 4004 of this title as this section.

Subsec. (a). Pub. L. 102–83, §4(b)(1), (2)(E), substituted "Secretary" for "Administrator" in two places.

Pub. L. 102–54 made a technical correction to Pub. L. 100–687, §101(b). See 1988 Amendment note below.

Subsec. (b). Pub. L. 102–40, §402(d)(1), substituted "5108" for "3008".

Subsec. (c). Pub. L. 102–83, §4(c), substituted "chief legal officer of the Department" for "chief law officer".

Pub. L. 102–83, §4(b)(1), (2)(E), substituted "Secretary" for "Administrator".

Pub. L. 102–83, §4(a)(3), (4), substituted "Department" for "Veterans' Administration".

1988—Subsec. (a). Pub. L. 100–687, §101(b), as amended by Pub. L. 102–54, substituted "All questions in a matter which under section 211(a) of this title is subject to decision by the Administrator" for "All questions on claims involving benefits under the laws administered by the Veterans' Administration".

Pub. L. 100–687, §203(a), inserted at end "The Board shall decide any such appeal only after affording the claimant an opportunity for a hearing. Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record and applicable provisions of law and regulation."

Subsec. (b). Pub. L. 100–687, §204, amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: "When a claim is disallowed by the Board, it may not thereafter be reopened and allowed, and no claim based upon the same factual basis shall be considered; however, where subsequent to disallowance of a claim, new and material evidence in the form of official reports from the proper service department is secured, the Board may authorize the reopening of the claim and review of the former decision."

Subsecs. (d), (e). Pub. L. 100–687, §205, added subsecs. (d) and (e) and struck out former subsec. (d) which read as follows: "The decisions of the Board shall be in writing and shall contain findings of fact and conclusions of law separately stated."

1961—Subsec. (d). Pub. L. 87–97 added subsec. (d).

Statutory Notes and Related Subsidiaries

Effective Date of 2017 Amendment

Effective Date of 1991 Amendment

Pub. L. 102–54, §14(g)(2), June 13, 1991, 105 Stat. 288, provided that the amendment made by that section is effective Nov. 18, 1988.

Effective Date of 1988 Amendment

Amendment by sections 101(b) and 204 of Pub. L. 100–687 effective Sept. 1, 1989, and amendment by sections 203(a) and 205 of Pub. L. 100–687 effective Jan. 1, 1989, see section 401(a), (d) of Pub. L. 100–687, as amended, set out as an Effective Date note under section 7251 of this title.

Effective Date of 1961 Amendment

Pub. L. 87–97, §2, July 20, 1961, 75 Stat. 215, provided that: "The amendment made by this Act [amending this section] shall take effect as of January 1, 1962."

Rule of Construction

Amendment by Pub. L. 117–168 not to be construed to apply section 5104(a) of this title to decisions of the Board of Veterans' Appeals under chapter 71 of this title, see section 807(b) of Pub. L. 117–168, set out as a note under section 5100 of this title.

§7105. Filing of appeal

(a) Appellate review shall be initiated by the filing of a notice of disagreement in the form prescribed by the Secretary. Each appellant will be accorded hearing and representation rights pursuant to the provisions of this chapter and regulations of the Secretary.

(b)(1)(A) Except in the case of simultaneously contested claims, a notice of disagreement shall be filed within one year from the date of the issuance of notice of the decision of the agency of original jurisdiction pursuant to section 5104, 5104B, or 5108 of this title.

(B) A notice of disagreement postmarked before the expiration of the one-year period shall be accepted as timely filed.

(2)(A) Notices of disagreement shall be in writing, shall identify the specific determination with which the claimant disagrees, and may be filed by the claimant, the claimant's legal guardian, or such accredited representative, attorney, or authorized agent as may be selected by the claimant or legal guardian.

(B) Not more than one recognized organization, attorney, or agent may be recognized at any one time in the prosecution of a claim.

(3) The notice of disagreement shall indicate whether the claimant requests—

(A) a hearing before the Board, which shall include an opportunity to submit evidence in accordance with section 7113(b) of this title;

(B) an opportunity to submit additional evidence without a hearing before the Board, which shall include an opportunity to submit evidence in accordance with section 7113(c) of this title; or

(4) The Secretary shall develop a policy to permit a claimant to modify the information identified in the notice of disagreement after the notice of disagreement has been filed under this section pursuant to such requirements as the Secretary may prescribe.

(c) If no notice of disagreement is filed in accordance with this chapter within the prescribed period, the action or decision of the agency of original jurisdiction shall become final and the claim shall not thereafter be readjudicated or allowed, except—

(1) in the case of a readjudication or allowance pursuant to a higher-level review that was requested in accordance with section 5104B of this title;

(2) as may otherwise be provided by section 5108 of this title; or

(3) as may otherwise be provided in such regulations as are consistent with this title.

(d) The Board may dismiss any appeal which fails to identify the specific determination with which the claimant disagrees.

(Added Pub. L. 87–666, §1, Sept. 19, 1962, 76 Stat. 553, §4005; amended Pub. L. 99–576, title VII, §701(85), Oct. 28, 1986, 100 Stat. 3298; Pub. L. 100–687, div. A, title II, §§203(b), 206, Nov. 18, 1988, 102 Stat. 4111; renumbered §7105 and amended Pub. L. 102–40, title IV, §402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 102–83, §4(b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 404, 405; Pub. L. 107–14, §8(a)(16), June 5, 2001, 115 Stat. 35; Pub. L. 112–154, title V, §501(a), Aug. 6, 2012, 126 Stat. 1190; Pub. L. 115–55, §2(q)(1), Aug. 23, 2017, 131 Stat. 1111; Pub. L. 117–168, title VIII, §807(a)(6), Aug. 10, 2022, 136 Stat. 1806.)

Editorial Notes

Amendments

2022—Subsec. (b)(1)(A). Pub. L. 117–168 substituted "issuance" for "mailing".

2017—Pub. L. 115–55, §2(q)(1)(F), struck out "notice of disagreement and" before "appeal" in section catchline.

Subsec. (a). Pub. L. 115–55, §2(q)(1)(A), substituted "Appellate review shall be initiated by the filing of a notice of disagreement in the form prescribed by the Secretary." for "Appellate review will be initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is furnished as prescribed in this section."

Subsec. (b). Pub. L. 115–55, §2(q)(1)(B), amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows:

"(1) Except in the case of simultaneously contested claims, notice of disagreement shall be filed within one year from the date of mailing of notice of the result of initial review or determination. Such notice, and appeals, must be in writing and be filed with the activity which entered the determination with which disagreement is expressed (hereinafter referred to as the "agency of original jurisdiction"). A notice of disagreement postmarked before the expiration of the one-year period will be accepted as timely filed.

"(2) Notices of disagreement, and appeals, must be in writing and may be filed by the claimant, the claimant's legal guardian, or such accredited representative, attorney, or authorized agent as may be selected by the claimant or legal guardian. Not more than one recognized organization, attorney, or agent will be recognized at any one time in the prosecution of a claim."

Subsec. (c). Pub. L. 115–55, §2(q)(1)(C), amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows: "If no notice of disagreement is filed in accordance with this chapter within the prescribed period, the action or determination shall become final and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with this title."

Subsec. (d). Pub. L. 115–55, §2(q)(1)(D), added subsec. (d) and struck out former subsec. (d) which related to development and review actions, statement of the case, and dismissal of appeal.

Subsec. (e). Pub. L. 115–55, §2(q)(1)(E), struck out subsec. (e) which read as follows:

"(1) If, either at the time or after the agency of original jurisdiction receives a substantive appeal, the claimant or the claimant's representative, if any, submits evidence to either the agency of original jurisdiction or the Board of Veterans' Appeals for consideration in connection with the issue or issues with which disagreement has been expressed, such evidence shall be subject to initial review by the Board unless the claimant or the claimant's representative, as the case may be, requests in writing that the agency of original jurisdiction initially review such evidence.

"(2) A request for review of evidence under paragraph (1) shall accompany the submittal of the evidence."

2012—Subsec. (e). Pub. L. 112–154 added subsec. (e).

2001—Subsec. (b)(1). Pub. L. 107–14 substituted "hereinafter" for "hereafter".

1991—Pub. L. 102–40, §402(b)(1), renumbered section 4005 of this title as this section.

Subsec. (a). Pub. L. 102–83 substituted "Secretary" for "Administrator".

Subsec. (d)(2). Pub. L. 102–40, §402(d)(1), substituted "5701" for "3301".

1988—Subsec. (d)(1). Pub. L. 100–687, §206(a), substituted "shall prepare a statement of the case. A statement of the case shall include the following:" for "will prepare a statement of the case consisting of—", added subpars. (A) to (C), and struck out former subpars. (A) to (C) which read as follows:

"(A) A summary of the evidence in the case pertinent to the issue or issues with which disagreement has been expressed;

"(B) A citation or discussion of the pertinent law, regulations, and, where applicable, the provisions of the Schedule for Rating Disabilities;

"(C) The decision on such issue or issues and a summary of the reasons therefor."

Subsec. (d)(4). Pub. L. 100–687, §206(b), amended par. (4) generally. Prior to amendment, par. (4) read as follows: "The appellant will be presumed to be in agreement with any statement of fact contained in the statement of the case to which no exception is taken."

Subsec. (d)(5). Pub. L. 100–687, §203(b), struck out "will base its decision on the entire record and" after "of Veterans' Appeals".

1986—Subsec. (b)(2). Pub. L. 99–576, §701(85), substituted "the claimant's" for "his" and "the claimant or legal guardian" for "him".

Subsec. (d)(1), (3). Pub. L. 99–576, §701(85)(A), substituted "the claimant's" for "his".

Statutory Notes and Related Subsidiaries

Effective Date of 2017 Amendment

Effective Date of 2012 Amendment

Pub. L. 112–154, title V, §501(b), Aug. 6, 2012, 126 Stat. 1190, provided that: "Subsection (e) of such section [38 U.S.C. 7105(e)], as added by subsection (a), shall take effect on the date that is 180 days after the date of the enactment of this Act [Aug. 6, 2012], and shall apply with respect to claims for which a substantive appeal is filed on or after the date that is 180 days after the date of the enactment of this Act."

Effective Date of 1988 Amendment

Amendment by Pub. L. 100–687 effective Jan. 1, 1989, see section 401(d) of Pub. L. 100–687 set out as an Effective Date note under section 7251 of this title.

Effective Date

Pub. L. 87–666, §3, Sept. 19, 1962, 76 Stat. 554, provided that: "The amendments made by this Act [enacting sections 4005, 4005A, and 4006 [now 7105, 7105A, and 7106] of this title, redesignating former section 4006 as 4007 [now 7107] of this title, and repealing former sections 4005 and 4007 of this title] shall be effective January 1, 1963."

Rule of Construction

§7105A. Simultaneously contested claims

(a) In simultaneously contested claims where one is allowed and one rejected, the time allowed for the filing of a notice of disagreement shall be sixty days from the date notice of the adverse action is issued. In such cases the agency of original jurisdiction shall promptly notify all parties in interest at the last known address of the action taken, expressly inviting attention to the fact that notice of disagreement will not be entertained unless filed within the sixty-day period prescribed by this subsection.

(b)(1) The substance of the notice of disagreement shall be communicated to the other party or parties in interest and a period of thirty days shall be allowed for filing a brief or argument in response thereto.

(2) Such notice shall be forwarded to the last known address of record of the parties concerned, and such action shall constitute sufficient evidence of notice.

(Added Pub. L. 87–666, §1, Sept. 19, 1962, 76 Stat. 554, §4005A; renumbered §7105A and amended Pub. L. 102–40, title IV, §402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 115–55, §2(r), Aug. 23, 2017, 131 Stat. 1112; Pub. L. 117–168, title VIII, §807(a)(7), Aug. 10, 2022, 136 Stat. 1806.)

Editorial Notes

Prior Provisions

Provisions similar to those comprising this section were contained in former section 4007 of this title, prior to the general amendment of sections 4005 to 4007 by Pub. L. 87–666.

Amendments

2022—Subsec. (a). Pub. L. 117–168 substituted "issued" for "mailed".

2017—Subsec. (b). Pub. L. 115–55 amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: "Upon the filing of a notice of disagreement, all parties in interest will be furnished with a statement of the case in the same manner as is prescribed in section 7105. The party in interest who filed a notice of disagreement will be allowed thirty days from the date of mailing of such statement of the case in which to file a formal appeal. Extension of time may be granted for good cause shown but with consideration to the interests of the other parties involved. The substance of the appeal will be communicated to the other party or parties in interest and a period of thirty days will be allowed for filing a brief or argument in answer thereto. Such notice shall be forwarded to the last known address of record of the parties concerned, and such action shall constitute sufficient evidence of notice."

1991—Pub. L. 102–40 renumbered section 4005A of this title as this section and substituted "7105" for "4005" in subsec. (b).

Statutory Notes and Related Subsidiaries

Effective Date of 2017 Amendment

Effective Date

Section effective Jan. 1, 1963, see section 3 of Pub. L. 87–666, set out as a note under section 7105 of this title.

Rule of Construction

[§7106. Repealed. Pub. L. 115–55, §2(s)(1), Aug. 23, 2017, 131 Stat. 1112]

Section, added Pub. L. 87–666, §1, Sept. 19, 1962, 76 Stat. 554, §4006; renumbered §7106 and amended Pub. L. 102–40, title IV, §402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 102–83, §4(a)(3), (4), (b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 404, 405, related to application for administrative appeals.

Provisions similar to those comprising this section were contained in subsec. (c)(2) of former section 4005 of this title, prior to the general amendment of sections 4005 to 4007 by Pub. L. 87–666.

Statutory Notes and Related Subsidiaries

Effective Date of Repeal

Repeal applicable to all claims for which the Secretary of Veterans Affairs provides notice of a decision under section 5104 of this title on or after the later of 540 days after Aug. 23, 2017, or 30 days after the date on which the Secretary submits to Congress a certification of certain capabilities of the Department of Veterans Affairs to carry out the new appeals system established by Pub. L. 115–55 and to address appeals of decisions on legacy claims, with provision for early applicability of the new appeals system to certain claims, see section 2(x) of Pub. L. 115–55, set out as an Effective Date of 2017 Amendment note under section 101 of this title, and bracketed note thereunder.

§7107. Appeals: dockets; hearings

(a) Dockets.—(1) Subject to paragraph (2), the Board shall maintain at least two separate dockets.

(2) The Board may not maintain more than two separate dockets unless the Board notifies the Committee on Veterans' Affairs of the Senate and the Committee on Veterans' Affairs of the House of Representatives of any additional docket, including a justification for maintaining such additional docket.

(3)(A) The Board may assign to each docket maintained under paragraph (1) such cases as the Board considers appropriate, except that cases described in clause (i) of subparagraph (B) may not be assigned to any docket to which cases described in clause (ii) of such paragraph are assigned.

(B) Cases described in this paragraph are the following:

(i) Cases in which no Board hearing is requested.

(ii) Cases in which a Board hearing is requested in the notice of disagreement.

(4) Except as provided in subsection (b), each case before the Board will be decided in regular order according to its respective place on the docket to which it is assigned by the Board.

(b) Advancement on the Docket.—(1) A case on one of the dockets of the Board maintained under subsection (a) may, for cause shown, be advanced on motion for earlier consideration and determination.

(2) Any such motion shall set forth succinctly the grounds upon which the motion is based.

(3) Such a motion may be granted only—

(A) if the case involves interpretation of law of general application affecting other claims;

(B) if the appellant is seriously ill or is under severe financial hardship; or

(c) Manner and Scheduling of Hearings for Cases on a Docket That May Include a Hearing.—(1) For cases on a docket maintained by the Board under subsection (a) that may include a hearing, in which a hearing is requested in the notice of disagreement, the Board shall notify the appellant whether a Board hearing will be held—

(A) at its principal location; or

(B) by picture and voice transmission at a facility of the Department where the Secretary has provided suitable facilities and equipment to conduct such hearings.

(2)(A) Upon notification of a Board hearing at the Board's principal location as described in subparagraph (A) of paragraph (1), the appellant may alternatively request a hearing as described in subparagraph (B) of such paragraph or subparagraph (C) of this paragraph. If so requested, the Board shall grant such request.

(B) Upon notification of a Board hearing by picture and voice transmission as described in subparagraph (B) of paragraph (1), the appellant may alternatively request a hearing as described in subparagraph (A) of such paragraph or subparagraph (C) of this paragraph. If so requested, the Board shall grant such request.

(C)(i) Upon notification of a Board hearing under subparagraph (A) or (B) of paragraph (1), the appellant may alternatively request a hearing by picture and voice transmission—

(I) at a location selected by the appellant; and

(II) via a secure internet platform established and maintained by the Secretary that protects sensitive personal information from a data breach.

(ii) If an appellant makes a request under clause (i), the Board shall grant such request.

(d) Screening of Cases.—Nothing in this section shall be construed to preclude the screening of cases for purposes of—

(1) determining the adequacy of the record for decisional purposes; or

(2) the development, or attempted development, of a record found to be inadequate for decisional purposes.

(e) Policy on Changing Dockets.—The Secretary shall develop and implement a policy allowing an appellant to move the appellant's case from one docket to another docket.

(Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1242, §4006; renumbered §4007, Pub. L. 87–666, §1, Sept. 19, 1962, 76 Stat. 553; renumbered §7107, Pub. L. 102–40, title IV, §402(b)(1), May 7, 1991, 105 Stat. 238; Pub. L. 103–271, §7(a)(1), July 1, 1994, 108 Stat. 742; Pub. L. 103–446, title III, §303, Nov. 2, 1994, 108 Stat. 4658; Pub. L. 105–368, title X, §1003, Nov. 11, 1998, 112 Stat. 3363; Pub. L. 114–315, title I, §102, Dec. 16, 2016, 130 Stat. 1540; Pub. L. 115–55, §2(t), Aug. 23, 2017, 131 Stat. 1112; Pub. L. 116–137, §2(a), Apr. 10, 2020, 134 Stat. 616.)

Editorial Notes

Amendments

2020—Subsec. (c)(2)(A). Pub. L. 116–137, §2(a)(1), inserted "or subparagraph (C) of this paragraph" after "subparagraph (B) of such paragraph".

Subsec. (c)(2)(B). Pub. L. 116–137, §2(a)(2), inserted "or subparagraph (C) of this paragraph" after "subparagraph (A) of such paragraph".

Subsec. (c)(2)(C). Pub. L. 116–137, §2(a)(3), added subpar. (C).

2017—Pub. L. 115–55 amended section generally. Prior to amendment, section consisted of subsecs. (a) to (f) relating to order of cases, opportunity for hearing, maintenance of hearing docket and holding of hearings by the Board, location and type of hearings, hearings conducted by electronic or other means, and screening of cases, respectively.

2016—Subsec. (d)(1). Pub. L. 114–315, §102(1), amended par. (1) generally. Prior to amendment, par. (1) read as follows: "An appellant may request that a hearing before the Board be held at its principal location or at a facility of the Department located within the area served by a regional office of the Department."

Subsec. (e)(2). Pub. L. 114–315, §102(2), amended par. (2) generally. Prior to amendment, par. (2) read as follows: "When such facilities and equipment are available, the Chairman may afford the appellant an opportunity to participate in a hearing before the Board through the use of such facilities and equipment in lieu of a hearing held by personally appearing before a Board member or panel as provided in subsection (d). Any such hearing shall be conducted in the same manner as, and shall be considered the equivalent of, a personal hearing. If the appellant declines to participate in a hearing through the use of such facilities and equipment, the opportunity of the appellant to a hearing as provided in such subsection (d) shall not be affected."

1998—Subsec. (a)(1). Pub. L. 105–368, §1003(a)(1), inserted "in paragraphs (2) and (3) and" after "Except as provided".

Subsec. (a)(2). Pub. L. 105–368, §1003(a)(2), added second and third sentences and struck out former second sentence which read as follows: "Any such motion shall set forth succinctly the grounds upon which it is based and may not be granted unless the case involves interpretation of law of general application affecting other claims or for other sufficient cause shown."

Subsec. (a)(3). Pub. L. 105–368, §1003(a)(3), added par. (3).

Subsec. (d)(2). Pub. L. 105–368, §1003(b)(1), substituted "in accordance with the place of the case on the docket under subsection (a) relative to other cases on the docket for which hearings are scheduled to be held within that area." for "in the order in which requests for hearings within that area are received by the Department."

Subsec. (d)(3). Pub. L. 105–368, §1003(b)(2), added par. (3) and struck out former par. (3) which read as follows: "In a case in which the Secretary is aware that the appellant is seriously ill or is under severe financial hardship, a hearing may be scheduled at a time earlier than would be provided for under paragraph (2)."

1994—Pub. L. 103–446 substituted "Except as provided in subsection (f), each case" for "Each case" in subsec. (a)(1) and added subsec. (f).

Pub. L. 103–271 amended section generally. Prior to amendment, text read as follows: "All cases received pursuant to application for review on appeal shall be considered and decided in regular order according to their places upon the docket; however, for cause shown a case may be advanced on motion for earlier consideration and determination. Every such motion shall set forth succinctly the grounds upon which it is based. No such motion shall be granted except in cases involving interpretation of law of general application affecting other claims, or for other sufficient cause shown."

1991—Pub. L. 102–40 renumbered section 4007 of this title as this section.

1962—Pub. L. 87–666 renumbered section 4006 of this title as this section.

Statutory Notes and Related Subsidiaries

Effective Date of 2017 Amendment

Deadline for Implementation

Pub. L. 116–137, §2(b), Apr. 10, 2020, 134 Stat. 616, provided that: "The Secretary shall implement the amendments made by subsection (a) [amending this section] not later than 180 days after the date of the enactment of this Act [Apr. 10, 2020]."

Collaboration

Pub. L. 116–137, §2(d), Apr. 10, 2020, 134 Stat. 617, provided that: "In developing the capacity and procedures to conduct hearings under subparagraph (C) of paragraph (2) of subsection (c) of section 7101 [probably should be "7107"] of title 38, United States Code, as added by subsection (a), the Secretary of Veterans Affairs shall collaborate with, partner with, and give weight to the advice of veterans service organizations and such other stakeholders as the Secretary considers appropriate."

§7108. Rejection of applications

An application for review on appeal shall not be entertained unless it is in conformity with this chapter.

(Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1243, §4008; renumbered §7108, Pub. L. 102–40, title IV, §402(b)(1), May 7, 1991, 105 Stat. 238.)

Editorial Notes

Amendments

1991—Pub. L. 102–40 renumbered section 4008 of this title as this section.

[§7109. Repealed. Pub. L. 115–55, §2(u)(1), Aug. 23, 2017, 131 Stat. 1113]

Section, added Pub. L. 87–671, §1, Sept. 19, 1962, 76 Stat. 557, §4009; amended Pub. L. 100–687, div. A, title I, §103(b), Nov. 18, 1988, 102 Stat. 4107; renumbered §7109, Pub. L. 102–40, title IV, §402(b)(1), May 7, 1991, 105 Stat. 238; Pub. L. 102–83, §4(a)(3), (4), (b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 404, 405, related to advisory medical opinions from one or more independent medical experts who are not employees of the Department.

Statutory Notes and Related Subsidiaries

Effective Date of Repeal

[§7110. Repealed. Pub. L. 103–271, §7(b)(2), July 1, 1994, 108 Stat. 743]

Section, added Pub. L. 100–687, div. A, title II, §207(a), Nov. 18, 1988, 102 Stat. 4111, §4010; renumbered §7110, Pub. L. 102–40, title IV, §402(b)(1), May 7, 1991, 105 Stat. 238; amended Pub. L. 102–83, §4(a)(3), (4), Aug. 6, 1991, 105 Stat. 404, authorized hearing before traveling sections of the Board.

§7111. Revision of decisions on grounds of clear and unmistakable error

(a) A decision by the Board is subject to revision on the grounds of clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised.

(b) For the purposes of authorizing benefits, a rating or other adjudicative decision of the Board that constitutes a reversal or revision of a prior decision of the Board on the grounds of clear and unmistakable error has the same effect as if the decision had been made on the date of the prior decision.

(c) Review to determine whether clear and unmistakable error exists in a case may be instituted by the Board on the Board's own motion or upon request of the claimant.

(d) A request for revision of a decision of the Board based on clear and unmistakable error may be made at any time after that decision is made.

(e) Such a request shall be submitted directly to the Board and shall be decided by the Board on the merits.

(f) A claim filed with the Secretary that requests reversal or revision of a previous Board decision due to clear and unmistakable error shall be considered to be a request to the Board under this section, and the Secretary shall promptly transmit any such request to the Board for its consideration under this section.

(Added Pub. L. 105–111, §1(b)(1), Nov. 21, 1997, 111 Stat. 2271; amended Pub. L. 115–55, §2(v), Aug. 23, 2017, 131 Stat. 1113.)

Editorial Notes

Amendments

2017—Subsec. (e). Pub. L. 115–55 struck out ", without referral to any adjudicative or hearing official acting on behalf of the Secretary" after "merits".

Statutory Notes and Related Subsidiaries

Effective Date of 2017 Amendment

Effective Date

Section applicable to any determination made before, on, or after Nov. 21, 1997, see section 1(c)(1) of Pub. L. 105–111, set out as a note under section 5109A of this title.

§7112. Expedited treatment of certain claims

(a) Remanded Claims.—The Secretary shall take such actions as may be necessary to provide for the expeditious treatment by the Board of any claim that is remanded to the Secretary by the Court of Appeals for Veterans Claims.

(b) Claims Involving Military Sexual Trauma.—The Board shall promptly determine whether a notice of disagreement filed with the Board is a covered case.

(1) The term "covered case" means a case—

(A) that concerns a claim for compensation based on military sexual trauma; and

(B) for which the appellant has requested a hearing in the notice of disagreement filed with the Board pursuant to section 7105 of this title.

(2) The term "military sexual trauma" has the meaning given that term in section 1166 of this title.

(Added Pub. L. 108–183, title VII, §707(b)(1), Dec. 16, 2003, 117 Stat. 2673; amended Pub. L. 117–300, §2(a)(1), (2)(A), Dec. 27, 2022, 136 Stat. 4379, 4380.)

Editorial Notes

Amendments

2022—Pub. L. 117–300 substituted "certain" for "remanded" in section catchline, designated existing provisions as subsec. (a) and inserted heading, and added subsecs. (b) and (c).

§7113. Evidentiary record before the Board of Veterans' Appeals

(a) Cases With No Request for a Hearing or Additional Evidence.—For cases in which a hearing before the Board of Veterans' Appeals is not requested in the notice of disagreement and no request was made to submit evidence, the evidentiary record before the Board shall be limited to the evidence of record at the time of the decision of the agency of original jurisdiction on appeal.

(b) Cases With a Request for a Hearing.—(1) Except as provided in paragraph (2), for cases in which a hearing is requested in the notice of disagreement, the evidentiary record before the Board shall be limited to the evidence of record at the time of the decision of the agency of original jurisdiction on appeal.

(2) The evidentiary record before the Board for cases described in paragraph (1) shall include each of the following, which the Board shall consider in the first instance:

(A) Evidence submitted by the appellant and his or her representative, if any, at the Board hearing.

(B) Evidence submitted by the appellant and his or her representative, if any, within 90 days following the Board hearing.

(c) Cases With No Request for a Hearing and With a Request for Additional Evidence.—(1) Except as provided in paragraph (2), for cases in which a hearing is not requested in the notice of disagreement but an opportunity to submit evidence is requested, the evidentiary record before the Board shall be limited to the evidence considered by the agency of original jurisdiction in the decision on appeal.

(2) The evidentiary record before the Board for cases described in paragraph (1) shall include each of the following, which the Board shall consider in the first instance:

(A) Evidence submitted by the appellant and his or her representative, if any, with the notice of disagreement.

(B) Evidence submitted by the appellant and his or her representative, if any, within 90 days following receipt of the notice of disagreement.

(Added Pub. L. 115–55, §2(w)(1), Aug. 23, 2017, 131 Stat. 1114.)

Statutory Notes and Related Subsidiaries

Effective Date

Section applicable to all claims for which the Secretary of Veterans Affairs provides notice of a decision under section 5104 of this title on or after the later of 540 days after Aug. 23, 2017, or 30 days after the date on which the Secretary submits to Congress a certification of certain capabilities of the Department of Veterans Affairs to carry out the new appeals system established by Pub. L. 115–55 and to address appeals of decisions on legacy claims, with provision for early applicability of the new appeals system to certain claims, see section 2(x) of Pub. L. 115–55, set out as an Effective Date of 2017 Amendment note under section 101 of this title, and bracketed note thereunder.