USC Chapter 71

USC Chapter 71
in effect

38 U.S.C. § 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). (C) An individual may not serve as an acting member of the Board for more than 270 days during any one-year period. (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; (C) the number of such cases which were filed during each of the 36 months preceding the current fiscal 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.

38 U.S.C. § 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.

38 U.S.C. § 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.

38 U.S.C. § 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.

38 U.S.C. § 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.

38 U.S.C. § 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. (C) A question as to timeliness or adequacy of the notice of disagreement shall be decided by the Board. (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. (C) Notices of disagreement shall be filed with the Board. (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 (C) a review by the Board without a hearing or the submittal of additional evidence. (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.

38 U.S.C. § 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.

38 U.S.C. § 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) for other sufficient cause shown. (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.

38 U.S.C. § 7108 Rejection of applications

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

38 U.S.C. § 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.

38 U.S.C. § 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. (c) Definitions.—In this section:(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.

38 U.S.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.

38 U.S.C. § 7114 Internship program

The Secretary shall establish a competitive internship program of the Board for individuals enrolled in the first or second year of law schools accredited by the American Bar Association.

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