38 U.S.C. § 7104 — Jurisdiction of the Board; decisions; no-

Page 1126 TITLE 38—VETERANS’ BENEFITS § 7104 (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 ‘‘de- cided’’ 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 deci- sion 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 ex- panded 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 mem- bers 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 unani- mous, 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 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 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. § 7104. Jurisdiction of the Board; decisions; no- tice (a) All questions in a matter which under sec- tion 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 evi- dence and material of record and applicable pro- visions 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, instruc- tions of the Secretary, and the precedent opin- ions of the chief legal officer of the Department. (d) Each decision of the Board shall include— (1) a written statement of the Board’s find- ings and conclusions, and the reasons or bases for those findings and conclusions, on all ma- terial 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 avail- able 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 de- cision to the following: (1) The appellant. (2) Any other party with a right to notice of such decision. (3) Any authorized representative of the ap- pellant 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 representa- tive) 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 catch- line. 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 fol- 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—