38 U.S.C. § 5104B — Higher-level review by the agency of

Page 1037 TITLE 38—VETERANS’ BENEFITS § 5104C 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. § 5104A. Binding nature of favorable findings Any finding favorable to the claimant as de- scribed in section 5104(b)(4) of this title shall be binding on all subsequent adjudicators within the Department, unless clear and convincing evidence is shown to the contrary to rebut such favorable finding. (Added Pub. L. 115–55, § 2(f)(1), Aug. 23, 2017, 131 Stat. 1107.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section 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. § 5104B. Higher-level review by the agency of original jurisdiction (a) IN GENERAL.—(1) A claimant may request a review of the decision of the agency of original jurisdiction by a higher-level adjudicator within the agency of original jurisdiction. (2) The Secretary shall approve each request for review under paragraph (1). (b) TIME AND MANNER OF REQUEST.—(1) A re- quest for higher-level review by the agency of original jurisdiction shall be— (A) in writing in such form as the Secretary may prescribe; and (B) made within one year of the notice of the agency of original jurisdiction’s decision. (2) Such request may specifically indicate whether such review is requested by a higher- level adjudicator at the same office within the agency of original jurisdiction or by an adjudi- cator at a different office of the agency of origi- nal jurisdiction. The Secretary shall not deny such request for review by an adjudicator at a different office of the agency of original juris- diction without good cause. (c) DECISION.—Notice of a higher-level review decision under this section shall be provided to the claimant (and any representative of such claimant) and shall include a general state- ment— (1) reflecting whether evidence was not con- sidered pursuant to subsection (d); and (2) noting the options available to the claim- ant to have the evidence described in para- graph (1), if any, considered by the Depart- ment. (d) EVIDENTIARY RECORD FOR REVIEW.—The evidentiary record before the higher-level adju- dicator shall be limited to the evidence of record in the agency of original jurisdiction decision being reviewed. (e) DE NOVO REVIEW.—A review of the decision of the agency of original jurisdiction by a high- er-level adjudicator within the agency of origi- nal jurisdiction shall be de novo. (Added Pub. L. 115–55, § 2(g)(1), Aug. 23, 2017, 131 Stat. 1107; amended Pub. L. 117–168, title VIII, § 807(a)(3), Aug. 10, 2022, 136 Stat. 1806.) Editorial Notes AMENDMENTS 2022—Subsec. (c). Pub. L. 117–168 substituted ‘‘to the claimant (and any representative of such claimant)’’ for ‘‘in writing’’ in introductory provisions. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section 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. 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. § 5104C. Options following decision by agency of original jurisdiction (a) WITHIN ONE YEAR OF DECISION.—(1) Subject to paragraph (2), in any case in which the Sec- retary renders a decision on a claim, the claim- ant may take any of the following actions on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision with respect to that claim: (A) File a request for higher-level review under section 5104B of this title. (B) File a supplemental claim under section 5108 of this title. (C) File a notice of disagreement under sec- tion 7105 of this title. (2)(A) Once a claimant takes an action set forth in paragraph (1), the claimant may not take another action set forth in that paragraph with respect to the same claim or same issue contained within the claim until— (i) the higher-level review, supplemental claim, or notice of disagreement is adju- dicated; or (ii) the request for higher-level review, sup- plemental claim, or notice of disagreement is withdrawn. (B) Nothing in this subsection shall prohibit a claimant from taking any of the actions set forth in paragraph (1) in succession with respect to a claim or an issue contained within the claim. (C) Nothing in this subsection shall prohibit a claimant from taking different actions set forth