38 U.S.C. § 7101 — Composition of Board of Veterans’ Ap-

Page 1121 TITLE 38—VETERANS’ BENEFITS § 7101 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 dis- agreement 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’ Ap- peals (a) There is in the Department a Board of Vet- erans’ Appeals (hereinafter in this chapter re- ferred 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 con- ducting hearings and considering and disposing of appeals properly before the Board. The Board shall have sufficient personnel under the pre- ceding 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 Chair- man shall be subject to the same ethical and legal limitations and restrictions concerning in- volvement 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 opin- ion of the President, prevents the proper execu- tion of the Chairman’s duties. The Chairman may not be removed from office by the Presi- dent 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 Chair- man would become vacant, the individual serv- ing 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 Con- gress during which the term of office expired. (4) The Secretary shall designate one member of the Board as Vice Chairman. The Vice Chair- man shall perform such functions as the Chair- man 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 Depart- ment to serve as acting members of the Board. Except as provided in subparagraph (B), any such designation shall be for a period not to ex- ceed 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 subpara- graph (A) or (C). (C) An individual may not serve as an acting member of the Board for more than 270 days dur- ing 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 activi- ties 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 Sec- retary shall indicate, in terms of full-time em- ployee equivalents, the number of acting mem- bers of the Board designated under such para- graph (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 activi- ties 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 Sec- retary 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 re- spect 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 be- fore 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 profes- sional, 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 Depart- ment designated under subsection (c)(1) to Page 1122 TITLE 38—VETERANS’ BENEFITS § 7101 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 sec- tion 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 lev- els) to ensure timely disposition of such ap- peals 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 de- termination 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 ‘‘herein- after’’ 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 Sec- retary, 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 Chair- man) may be removed by the Secretary upon the rec- ommendation 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 car- ried out subject to the same requirements as apply to removal of an administrative law judge under that sec- tion. Section 554(a)(2) of title 5 shall not apply to a re- moval action under this subparagraph. In such a re- moval 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 con- cerning involvement in political activities as apply to judges of the United States Court of Veterans Ap- peals.’’ Subsec. (b)(3). Pub. L. 103–446, §§ 201(d)(3), 203, sub- stituted ‘‘The Chairman’’ for ‘‘Members (including the Chairman)’’ and inserted at end ‘‘If, upon the expira- tion of the term of office for which the Chairman was appointed, the position of Chairman would become va- cant, the individual serving as Chairman may, with the approval of the Secretary, continue to serve as Chair- man until either appointed to another term or a suc- cessor is appointed, but not beyond the end of the Con- gress 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 Chair- man 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 pe- riod.’’ Subsec. (c)(2), (3). Pub. L. 103–271, § 4(a)(2)–(4), redesig- nated 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 sub- section 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 imme- diately before the enactment of Pub. L. 102–40 by sub- stituting ‘‘There is’’ for ‘‘There shall be’’ and ‘‘. The Board is under the administrative’’ for ‘‘under the ad- ministrative’’. Subsec. (b)(2), (4). Pub. L. 102–83, § 4(b)(1), (2)(E), sub- stituted ‘‘Secretary’’ for ‘‘Administrator’’ wherever ap- pearing. 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), sub- stituted ‘‘Secretary’’ for ‘‘Administrator’’ in two places. Pub. L. 102–83, § 2(c)(3), substituted ‘‘section 529’’ for ‘‘section 214’’. Page 1123 TITLE 38—VETERANS’ BENEFITS § 7101A 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), sub- stituted ‘‘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 Chair- man and Vice Chairman) shall be appointed by the Ad- ministrator 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), sub- stituted ‘‘65’’ for ‘‘fifty’’ and struck out ‘‘associate’’ be- fore ‘‘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 effec- tive Feb. 1, 1989, amendment by section 202(b) of Pub. L. 100–687 effective Jan. 1, 1989, and amendment by sec- tions 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 sub- mitted under section 7101(d) of title 38, United States Code, shall include the following information with re- spect 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 con- siders appropriate about hearings scheduled under such subparagraph, including— ‘‘(i) a description of the resources required to con- duct 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 in- formation technology systems of the Veterans Bene- fits Administration and the Board of Veterans’ Ap- peals required to carry out hearings under such sub- paragraph, 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 shar- ing.’’ 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 sub- section (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 sub- section (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 ear- lier 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 ap- pointed 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 mem- ber 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 reason- able period. (B) Not less than one year after the job per- formance standards under subsection (f) are ini- tially 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 mem- ber’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 re- view panel in any case is that the member’s job