38 U.S.C. § 7105 — Filing of appeal

Page 1127 TITLE 38—VETERANS’ BENEFITS § 7105 lows: ‘‘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 representa- tive (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 sen- tence ‘‘The Board shall decide any such appeal only after affording the claimant an opportunity for a hear- ing.’’ 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 ‘‘Sec- retary’’ 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 mat- ter 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 pro- ceeding and upon consideration of all evidence and ma- terial 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 fol- lows: ‘‘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 re- ports 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 writ- ing 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 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 ad- dress appeals of decisions on legacy claims, with provi- sion 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 brack- eted note thereunder. 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 sec- tions 203(a) and 205 of Pub. L. 100–687 effective Jan. 1, 1989, see section 401(a), (d) of Pub. L. 100–687, as amend- ed, 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 be- fore 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 writ- ing, 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, at- torney, or authorized agent as may be selected by the claimant or legal guardian. (B) Not more than one recognized organiza- tion, 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 evi- dence 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 per- mit a claimant to modify the information iden- tified in the notice of disagreement after the no- tice 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 ac- cordance 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— Page 1128 TITLE 38—VETERANS’ BENEFITS § 7105 (1) in the case of a readjudication or allow- ance 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 reg- ulations 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 catch- line. 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 pre- scribed in this section.’’ Subsec. (b). Pub. L. 115–55, § 2(q)(1)(B), amended sub- sec. (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 ap- peals, must be in writing and be filed with the activity which entered the determination with which disagree- ment is expressed (hereinafter referred to as the ‘‘agen- cy of original jurisdiction’’). A notice of disagreement postmarked before the expiration of the one-year pe- riod will be accepted as timely filed. ‘‘(2) Notices of disagreement, and appeals, must be in writing and may be filed by the claimant, the claim- ant’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 recog- nized organization, attorney, or agent will be recog- nized at any one time in the prosecution of a claim.’’ Subsec. (c). Pub. L. 115–55, § 2(q)(1)(C), amended sub- sec. (c) generally. Prior to amendment, subsec. (c) read as follows: ‘‘If no notice of disagreement is filed in ac- cordance with this chapter within the prescribed pe- riod, the action or determination shall become final and the claim will not thereafter be reopened or al- lowed, except as may otherwise be provided by regula- tions 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 sub- sec. (e) which read as follows: ‘‘(1) If, either at the time or after the agency of origi- nal jurisdiction receives a substantive appeal, the claimant or the claimant’s representative, if any, sub- mits evidence to either the agency of original jurisdic- tion or the Board of Veterans’ Appeals for consider- ation 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 ‘‘here- inafter’’ 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), sub- stituted ‘‘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 sub- pars. (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 sum- mary of the reasons therefor.’’ Subsec. (d)(4). Pub. L. 100–687, § 206(b), amended par. (4) generally. Prior to amendment, par. (4) read as fol- lows: ‘‘The appellant will be presumed to be in agree- ment 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), sub- stituted ‘‘the claimant’s’’ for ‘‘his’’ and ‘‘the claimant or legal guardian’’ for ‘‘him’’. Subsec. (d)(1), (3). Pub. L. 99–576, § 701(85)(A), sub- stituted ‘‘the claimant’s’’ for ‘‘his’’. 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 ad- dress appeals of decisions on legacy claims, with provi- sion 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 brack- eted note thereunder. 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 ef- fect 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 Effec- tive Date note under section 7251 of this title. Page 1129 TITLE 38—VETERANS’ BENEFITS § 7107 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 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. § 7105A. Simultaneously contested claims (a) In simultaneously contested claims where one is allowed and one rejected, the time al- lowed 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 agen- cy 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 disagree- ment 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 con- cerned, and such action shall constitute suffi- cient 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 fol- lows: ‘‘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 dis- agreement 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 inter- ests of the other parties involved. The substance of the appeal will be communicated to the other party or par- ties in interest and a period of thirty days will be al- lowed for filing a brief or argument in answer thereto. Such notice shall be forwarded to the last known ad- dress of record of the parties concerned, and such ac- tion 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 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 ad- dress appeals of decisions on legacy claims, with provi- sion 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 brack- eted note thereunder. 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 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. [§ 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 admin- istrative 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 Sec- retary 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 certifi- cation of certain capabilities of the Department of Vet- erans Affairs to carry out the new appeals system es- tablished by Pub. L. 115–55 and to address appeals of de- cisions on legacy claims, with provision for early appli- cability 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 Sen- ate 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.