38 U.S.C. § 7107 — Appeals: dockets; hearings

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. Page 1130 TITLE 38—VETERANS’ BENEFITS § 7107 (B) Cases described in this paragraph are the following: (i) Cases in which no Board hearing is re- quested. (ii) Cases in which a Board hearing is re- quested 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 HEAR- ING.—(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 Sec- retary 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 sub- paragraph (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 sub- paragraph (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 hear- ing by picture and voice transmission— (I) at a location selected by the appellant; and (II) via a secure internet platform estab- lished 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 sec- tion 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 develop- ment, of a record found to be inadequate for decisional purposes. (e) POLICY ON CHANGING DOCKETS.—The Sec- retary shall develop and implement a policy al- lowing 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), in- serted ‘‘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 ‘‘subpara- graph (A) of such paragraph’’. Subsec. (c)(2)(C). Pub. L. 116–137, § 2(a)(3), added sub- par. (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 be- fore 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 fol- lows: ‘‘When such facilities and equipment are avail- able, the Chairman may afford the appellant an oppor- tunity 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 man- ner as, and shall be considered the equivalent of, a per- sonal 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 hear- ing as provided in such subsection (d) shall not be af- fected.’’ 1998—Subsec. (a)(1). Pub. L. 105–368, § 1003(a)(1), in- serted ‘‘in paragraphs (2) and (3) and’’ after ‘‘Except as provided’’. Subsec. (a)(2). Pub. L. 105–368, § 1003(a)(2), added sec- ond 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 inter- pretation 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 De- partment.’’ 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 ap- Page 1131 TITLE 38—VETERANS’ BENEFITS § 7111 pellant is seriously ill or is under severe financial hard- ship, 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 consider- ation 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 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. DEADLINE FOR IMPLEMENTATION Pub. L. 116–137, § 2(b), Apr. 10, 2020, 134 Stat. 616, pro- vided that: ‘‘The Secretary shall implement the amend- ments 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, pro- vided that: ‘‘In developing the capacity and procedures to conduct hearings under subparagraph (C) of para- graph (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 Af- fairs 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 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. [§ 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 revi- sion 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 ef- fect as if the decision had been made on the date of the prior decision. (c) Review to determine whether clear and un- mistakable error exists in a case may be insti- tuted 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 re- quests 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’’.