The Code of Federal Regulations of the United States of America

(b) Revocation or change of power of attorney. A claimant shall be permitted to revoke a power of attorney to a service organization whenever he so desires, irrespective of whether he concurrently designates another representative.

[29 F.R. 1464, Jan. 29, 1964, as amended at 32 F.R. 4410, Mar. 23, 1967]

§ 19.130 Rule 30; attorneys and agents. (a) Attorneys. A written declaration of representation by an attorney stating that he is a member in good standing of the bar of the highest court of any State, possession, territory, Commonwealth, or the District of Columbia and that he is authorized to represent a claimant in whose behalf he acts will, in the absence of evidence to the contrary, qualify him to represent the claimant. (§ 14.629 (b) of this chapter.)

(b) Agents (1) Designation. The designation of an agent will be by duly executed VA Form 2-22a, Power of Attorney, or its equivalent. (§ 14.640 of this chapter) The designation should be an individual agent, rather than a firm or partnership.

(2) Admission to practice. The provisions of 38 U.S.C. 3404 and § 14.629 (a) of this chapter are applicable to admission of agents to practice before the Veterans Administration. Admissions to practice are under the control of the General Counsel of the Veterans Administration and any questions concerning admissions should be addressed to him.

(c) Revocation or change of representation by an attorney or agent. claimant may revoke a declaration of representation by an attorney or a power of attorney to an agent at any time, but such revocation shall not be effective as to the Veterans Administration until notice of such action is received by the Veterans Administration (§ 14.644 of this chapter).

(d) Fee or expenses. Entitlement of an attorney or agent to a fee or expenses in connection with a claim for Veterans Administration benefits is controlled by §§ 14.650 through 14.658 of this chapter. As to an appeal to the Board of Veterans Appeals, see Rule 11 (§ 19.111). [32 F.R. 4410, Mar. 23, 1967]

§ 19.131

Rule 31; other persons as representative.

(a) Recognition for a particular claim. Any competent person, who is a citizen of the United States or a resident of the United States or one of the possessions, may be recognized as a representative for a particular claim, unless that person has been barred from practice before the Veterans Administration. (38 U.S.C. 3403)

(b) Designation. The designation must be by power of attorney which stipulates that no fee or compensation of any nature will be charged or paid for the services. The designation will be by VA Form 2-22a, Power of Attorney, or its equivalent.

[29 F.R. 1464, Jan. 29, 1964, as amended at 32 F.R. 4411, Mar. 23, 1967] § 19.132 Rule 32; general.

Only one at

(a) One representative. torney, agent, or service organization shall be recognized at any one time in the prosecution of a specific claim. (38 U.S.C. 4005(b) (2))

(b) Change of status from wife to widow. A power of attorney or designation of representation submitted by the wife of a veteran may continue in effect after she becomes a widow.

(c) Recognition of representative after death of veteran. A service organization, attorney, agent, or person properly designated to represent a veteran may, in the event of death of the veteran, be recognized for a reasonable period thereafter, but not as representative of a survivor claimant who has appointed another representative (§§ 1.525(d), 14.628 (a) of this chapter). [32 F.R. 4411, Mar. 23, 1967]

(a) Right to a hearing. A hearing on appeal shall be granted where a claimant or his representative expresses a desire to appear in person. (38 U.S.C. 4002)

(b) Purpose of hearing. The purpose of a hearing is to receive argument or testimony relevant and material to the appellate issue.

(c) Nonadversary proceedings. Hearings conducted by and for the Board are ex parte in nature and nonadversary. Cross-examination by parties to the hearing will not be permitted. Proceedings will not be limited by legal rules of

evidence, but reasonable bounds of relevancy and materiality will be maintained.

§ 19.134 Rule 34; who may appear.

The claimant, his authorized representative, Members of Congress and their staff may appear and present argument in support of a claim. At the request of a claimant, a contact representative of the Veterans Administration may present the appeal at a hearing before the Board of Veterans Appeals or to a hearing agency acting for the Board.

§ 19.135 Rule 35; witnesses.

(a) General. The testimony of witnesses will be heard. A claimant or his representative may arrange for the voluntary appearance of such witnesses as he desires, but the Board will not require the appearance of any Veterans Administration official or other person.

(b) Testimony under oath. All testimony must be given under oath (affirmation if oath against religious principles), unless excused for cause. If the individual declines, he should be informed that his testimony will not bear the weight of sworn testimony. Administration of the oath for the sole purpose of presenting contentions and argument is not required.

§ 19.136 Rule 36; expenses of attending hearing.

No expenses incurred by a claimant, his counsel, or witnesses incident to attendance at a hearing may be paid by the Government.

§ 19.137 Rule 37; scheduling and notice of hearing.

(a) General. A hearing on appeal will normally be set for a date after the statement of the case is furnished the claimant. To the extent that facilities permit, they are set for the convenience of claimants and their representatives, with consideration of the travel distance involved.

(b) Notification of hearing. When a hearing is scheduled, the person requesting the hearing will be notified of the time and place of the hearing, including notice that the Government may not assume any expense incurred by the claimant, his representative or witnesses incident to attendance at the hearing.

be granted, but with consideration of the interests of other parties involved in contested claims. Ordinarily, hearings will not be postponed more than 30 days.

§ 19.138 Rule 38; place of hearing.

A hearing may be held in one of the following places, at the option of the claimant:

(a) Before a section of the Board of Veterans Appeals in Washington, D.C. (b) Before a traveling section of the Board of Veterans Appeals, if practicable.

(c) Before appropriate personnel in the Veterans Administration regional or other office nearest the claimant's residence, acting as a hearing agency for the Board of Veterans Appeals.

§ 19.139 Rule 39; hearings in contested claims.

If a hearing is scheduled for either party to a simultaneously contested claim, the Board will either accord the representative of the other contesting claimant the opportunity to be present but not participate, or will advise the other contesting claimant in writing of the substance of the argument or contentions advanced. In either event, a reasonable time will be allowed for argument or testimony in refutation, and a separate hearing for the other contesting claimant will be scheduled for that purpose, if requested.

§ 19.140 Rule 40; transcript of hearing.

The proceedings at the hearing shall be recorded and a copy of the complete transcript incorporated as a permament part of the claims record. (38 U.S.C. 4002) A copy may be furnished without cost to the claimant or his representative upon request made at the time of or prior to the hearing; otherwise, a charge may be made in accordance with § 1.526 of this chapter.

§ 19.142 Rule 42; action by agency of

original jurisdiction on evidence.

(a) Evidence received prior to transfer of records to Board of Veterans Appeals. Evidence received in the agency of original jurisdiction after the initiation of an appeal and prior to transfer of the records to the Board of Veterans Appeals, including cases in which certification may have been completed, will be referred to the rating or authorization activity for review and disposition. A supplemental statement of the case will be furnished the claimant and his representative as provided in Rule 15 (§ 19.115). Where a supplemental statement of the case is not furnished, the claimant and his representative will be notified of the action taken and the reasons for the action.

(b) Evidence received after transfer of records to the Board of Veterans Appeals. Additional evidence received in an agency of original jurisdiction after the records have been transferred to the Board of Veterans Appeals for appellate consideration will be forwarded to the Board if it has a direct bearing on the appellate issue or issues. The Board will then determine what procedural steps are required with respect to the new evidence.

Applications for review on appeal shall be considered in the order in which they are entered on the docket, except that a case may be advanced on the docket for earlier consideration for sufficient cause shown. (38 U.S.C. 4007)

§ 19.144 Rule 44; expert medical opinions.

(a) Opinion of the Chief Medical Director. The Board may obtain an expert medical opinion from the Chief Medical Director of the Veterans Administration on medical questions involved in the consideration of an appeal, when in its judgment such medical expertise, in addition to that available from the Board's medical staff, is needed for equitable disposition of the appeal.

(b) Opinion of independent medical experts. When in the judgment of the Board expert medical opinion, in addition to that available within the Veterans Administration, is warranted by the medical complexity or controversy in

volved in an appeal, the Board may obtain an advisory medical opinion from one or more independent medical experts who are not employees of the Veterans Administration. Opinions will be secured, as requested by the Chairman of the Board, from recognized medical schools, universities, clinics or medical institutions, with which arrangements for such opinions have been made by the Administrator of Veterans Affairs. Actual selection of the expert or experts to give the opinion in an individual case will be made by an appropriate official of the institution. (38 U.S.C. 4009)

(b) Disposition of issues. The decision of the Board will dispose of each issue on appeal by allowance, denial, remand or dismissal, in whole or in part.

(c) Format. The decision of the Board shall be in writing and shall set forth specifically the issue or issues, findings of fact and conclusions of law separately stated and the reasons for the Board's decision. (38 U.S.C. 4004(d))

(d) Unanimous decision. Where the members of the section unanimously concur in the decision, it shall be the final determination of the Board. (38 U.S.C. 4003 (a))

(e) Dissent. Where the members do not agree, the Chairman of the Board may either concur with the majority, in which event this will constitute final determination of the Board, or he may direct further consideration by two or more sections, including the section to which the case was originally assigned. Any decision which is not unanimous will require concurrence of the Chairman of the Board. If the members are equally divided, the Chairman will participate in the determination.

§ 19.146 Rule 46; remand for further development.

(a) General. When, during the course of review, it is determined that further evidence or clarification of the evidence is essential for a complete and impartial appellate determination, the section of the Board shall remand the

case to the agency of original jurisdiction, directing the further development to be undertaken.

(b) Review by agency of original jurisdiction. Where the development results in additional evidence, a supplemental statement of the case will be furnished the claimant and his representative, where indicated, and the records will again be reviewed by the agency of original jurisdiction. Review by the agency of original jurisdiction is not required where the remand is only for assembly of records previously considered by the agency of original jurisdiction.

(c) Resubmission to Board of Veterans Appeals. Unless the benefits appealed for are granted on review by the agency of original jurisdiction, the records will be returned to the Board of Veterans Appeals for completion of appellate review. Remanded cases will not be closed for failure to respond to the supplemental statement of the case. § 19.147

Rule 47; disqualification of

members.

(a) General. A member of the Board shall disqualify himself in a hearing or decision on an appeal from a determination in which he participated or had supervisory responsibility in the agency of original jurisdiction prior to his appointment as a member of the Board, or where there are other circumstances which might give the impression of bias either for or against the appellant.

(b) Appeal on same issue subsequent to decision on administrative appeal. Members of the Board signatory to the decision on administrative appeal will disqualify themselves from acting on a subsequent appeal by the claimant on the same issue.

RECONSIDERATION OF APPELLATE DECISIONS § 19.148 Rule 48; when accorded.

Reconsideration of an appellate decision may be accorded by the Board of Veterans Appeals:

(a) For obvious error of fact or law upon allegation by the claimant or on the Board's own motion; or

(b) Upon discovery of additional service department records. (38 U.S.C. 4003, 4004 (b))

§ 19.149 Rule 49; requirements in application.

Application for reconsideration shall set forth clearly and specifically the al

leged error of fact or law in the decision of the Board.

§ 19.150 Rule 50; evidence considered.

The determination as to whether an error exists which warrants reversal of the Board's decision shall be based on evidence of record at the time the decision was entered and additional evidence submitted after the decision may not be considered.

§ 19.151 Rule 51; time limit for filing of requests for reconsideration.

Request for hearing for the purpose of showing error in the Board's decision shall be made within 1 year from the date of the mailing of notice of the original decision. A brief for the purpose of showing error in the Board's decision may be filed at any time.

§ 19.152 Rule 52; members to consider allegations of error.

When a decision of the Board is to be reconsidered, the Chairman may assign one or more additional sections to participate with the members signatory to the decision being reconsidered. Any decision which is not unanimous will require concurrence of the Chairman of the Board. If the members are equally divided, the Chairman will participate in the determination.

[32 F.R. 4411, Mar. 23, 1967]

§ 19.153 Rule 53; finality of decisions of the agency of original jurisdiction where appeal not timely initiated and perfected.

If a notice of disagreement is not timely filed and followed by a timely substantive appeal within the periods prescribed in Rule 18 (§ 19.118), the action or determination of the agency of original jurisdiction shall become final and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by Veterans Administration Regulations in Title 38, Code of Federal Regulations.

§ 19.154 Rule 54; finality of decisions of the agency of original jurisdiction affirmed on appeal.

Where an appeal is timely filed and perfected, the decision of the agency of original jurisdiction, if affirmed, does not become final until the date of the appellate decision.

§ 19.155 Rule 55; new claim after appellate decision.

Where a reopened claim is filed and evidence is submitted in support thereof which establishes a new factual basis, the reopened claim shall be adjudicated without regard to prior appellate decision on the issue. The claimant may appeal the action.

§ 19.156 Rule 56; death of claimant during pendency of appeal.

Where at the death of the veteran an appeal was pending before the Board of Veterans Appeals, the Board may complete its action without application from the survivors.

PART 21-VOCATIONAL REHABILITA-
TION AND EDUCATION

Subpart A-Vocational Rehabilitation
Under 38 U.S.C. Ch. 31

ADMINISTRATIVE

Delegations of authority.