ure of a party to request review under this section shall not be deemed a failure to exhaust administrative remedies for the purpose of obtaining judicial review.

[35 FR 10760, July 2, 1970, as amended at 51 FR 10387, Mar. 26, 1986]

§ 18b.76 Service on amici curiae.

All briefs, exceptions, memoranda, requests, and decisions referred to in §§ 18b.70 through 18b.76 shall be served upon amici curiae at the same times and in the same manner required for service on parties. Any written statements of position and trial briefs required of parties under § 18b.50 shall be served on amici.

POSTHEARING AGENCY ACTIONS

§ 18b.77 Final agency action.

(a) The final decision of the administrative law judge or reviewing authority that a school or training establishment is not in compliance will be referred by the reviewing authority to the Administrator for approval as required by § 18.10(e) of this chapter. The finding will be accompanied by letters from the Administrator to the House Veterans' Affairs Committee and the Senate Veterans Affairs Committee containing a full report on the circumstances as required by § 18.8(c) of this chapter, the reasons for the proposed action and a statement that the proposed action will become the final agency action 30 days after the date of the letter.

(b) A copy of the letters to the congressional committees will be sent to all parties to the proceedings.

[35 FR 10760, July 2, 1970, as amended at 51 FR 10387, Mar. 26, 1986]

JUDICIAL STANDARDS OF PRACTICE

§ 18b.90 Conduct.

Parties and their representatives are expected to conduct themselves with honor and dignity and observe judicial standards of practice and ethics in all proceedings. They should not indulge in offensive personalities, unseemly wrangling, or intemperate accusations or characterizations. A representative of any party whether or not a lawyer shall observe the traditional responsi

bilities of lawyers as officers of the court and use best efforts to restrain the principal represented from improprieties in connection with a proceeding.

[35 FR 10760, July 2, 1970, as amended at 51 FR 10387, Mar. 26, 1986]

§ 18b.91 Improper conduct.

With respect to any proceeding it is improper for any interested person to attempt to sway the judgment of the reviewing authority by undertaking to bring pressure or influence to bear upon the reviewing authority or any officer having a responsibility for a decision in the proceeding, or decisional staff. It is improper that such interested persons or any members of the Veterans Administration's staff or the presiding officer give statements to communications media, by paid advertisement or otherwise, designed to influence the judgment of any officer having a responsibility for a decision in the proceeding, or decisional staff. It is improper for any person to solicit communications to any such officer, or decisional staff, other than proper communications by parties or amici

curiae.

[35 FR 10760, July 2, 1970, as amended at 51 FR 10387, Mar. 26, 1986]

§ 18b.92 Ex parte communications.

Only persons employed by or assigned to work with the reviewing authority who perform no investigative or prosecuting function in connection with a proceeding shall communicate ex parte with the reviewing authority or the presiding officer, or any employee or person involved in the decisional process in such proceedings with respect to the merits of that or a factually related proceeding. The reviewing authority, the presiding officer, or any employee or person involved in the decisional process of a proceeding shall communicate ex parte with respect to the merits of that or a factually related proceeding only with persons employed by or assigned to work with them and who perform no investigative or prosecuting function in connection with the proceeding.

§ 18b.93 Expeditious treatment.

Requests for expeditious treatment of matters pending before the reviewing authority or the presiding officer are deemed communications on the merits, and are improper except when forwarded from parties to a proceeding and served upon all other parties thereto. Such communications should be in the form of a motion.

§ 18b.94 Matters not prohibited.

A request for information which merely inquires about the status of a proceeding without discussing issues or expressing points of view is not deemed an ex parte communication. Such requests should be directed to the civil rights hearing clerk. Communications with respect to minor procedural matters or inquiries or emergency requests for extensions of time are not deemed ex parte communications prohibited by § 18b.92. Where feasible, however, such communications should be by letter with copies to all parties. Ex parte communications between a respondent and the responsible agency official or the Administrator with respect to securing such respondent's voluntary compliance with any requirement of Part 18 of this chapter are not prohibited.

A prohibited communication in writing received by the Administrator, the reviewing authority, or by the presiding officer, shall be made public by placing it in the correspondence file of the docket in the case and will not be considered as part of the record for decision. If the prohibited communication is received orally, a memorandum setting forth its substance shall be made and filed in the correspondence section of the docket in the case. A person referred to in such memorandum may file a comment for inclusion in the docket if the memorandum is considered to be incorrect.

[35 FR 10760, July 2, 1970, as amended at 51 FR 10387, Mar. 26, 1986]

and rotation of members.

19.111 Rule 11; Function of the Board. Rule 12; Jurisdiction. Rule 13; Board records.

19.112 19.113

NOTIFICATION OF APPELLATE RIGHTS 19.114 Rule 14; Notification of right to appeal.

19.115 Rule 15; Notification of right to appeal in administrative appeals and contested claims.

19.116 Rule 16; Decision notification.

COMMENCEMENT OF APPEAL

19.117 Rule 17; What constitutes an appeal.

19.118 Rule 18; Notice of disagreement. 19.119 Rule 19; Action by agency of original jurisdiction on notice of disagreement.

19.120 Rule 20; Statement of the case. 19.121

Rule 21; Furnishing the statement of the case and instructions for filing a substantive appeal.

19.122 Rule 22; Supplemental statement of

the case.

19.123 Rule 23; Substantive appeal.

19.124 Rule 24; Closing-failure to respond to statement of the case. 19.125 Rule 25; Withdrawal. 19.126 Rule 26; Dismissal.

FILING

19.127 Rule 27; Place of filing notice of disagreement and substantive appeal. 19.128 Rule 28; Who can file an appeal. 19.129 Rule 29; Time limit for filing. 19.130 Rule 30; Extension of time for filing.

19.131 Rule 31; Computation of time limit. 19.132 Rule 32; Legal holidays. 19.133 Rule 33; Timely filing of appeal questioned within the agency of original jurisdiction.

19.134 Rule 34; Adequacy of notice of dis

agreement questioned within the agency of original jurisdiction.

19.135 Rule 35; Untimely filing of appeal protested by claimant.

19.136 Rule 36; Inadequacy of the notice of disagreement.

19.137 Rule 37; Adequacy of the substantive appeal.

19.138 Rule 38; Administrative appeal. 19.139 Rule 39; Officials authorized and time limits for filing administrative appeals.

19.140 Rule 40; Notification to claimant. 19.141 Rule 41; Merger of administrative appeal and claimant's appeal. 19.142 Rule 42; Effect of decision on administrative or merged appeal.

CONTESTED CLAIMS

19.143 Rule 43; Notification of right to appeal in simultaneously contested claims.

19.144 Rule 44; Who can file an appeal in contested claims.

19.145 Rule 45; Time limits for filing in contested claims.

19.146 Rule 46; Notice to contesting parties on receipt of notice of disagreement. 19.147 Rule 47; Notice of substance of appeal to other contesting parties. 19.148 Rule 48; Extension of time for filing in contested claims.

19.149 Rule 49; Notices to last addresses of record in contested claims.

REPRESENTATION

19.150 Rule 50; Right to representation. 19.151 Rule 51; Recognized organizations. 19.152 Rule 52; Attorneys. 19.153 Rule 53; Agents.

19.154 Rule 54; Other persons as representative.

19.155 Rule 55; General. 19.156

Rule 56; Legal interns, law students and paralegals.

HEARINGS

19.157
19.158 Rule 58; Who may appear.

Rule 57; General.

19.159 Rule 59; Scheduling and notice of

hearing.

19.160 Rule 60; Place of hearing.

19.161 Rule 61; Composition of the hearing panel.

19.162 Rule 62; Functions of the presiding member.

19.163 Rule 63; Prehearing conference. 19.164 Rule 64; Procurement of additional evidence following a hearing.

19.165 Rule 65; Witnesses. 19.166 Rule 66; Expenses. 19.167 Rule 67; Hearings in simultaneously contested claims.

19.168 Rule 68; Recorded hearing. 19.169 Rule 69; Recording of hearings. 19.170 Rule 70; Official transcript. 19.171 Rule 71; Alternate transcript versions.

FINALITY

19.191 Rule 91; Harmless error.

19.192 Rule 92; Finality of determinations of the agency of original jurisdiction where appeal is not perfected.

19.193 Rule 93; Finality of determinations of the agency of original jurisdiction affirmed on appeal.

19.194 Rule 94; New claim after appellate decision.

19.195 Rule 95; Death of appellant during pendency of appeal.

19.196 Rule 96; Claim for death benefits by

survivor-prior unfavorable decision. 19.197 Rule 97; Nonprecedential nature of board decisions.

PRIVACY ACT

19.198 Rule 98; Privacy Act request— appeal pending.

19.199 Rule 99; Amendment of appellate decisions.

MISCELLANEOUS

19.200 Rule 100; Index to appellate decisions.

19.201 Rule 101; Vacating a decision.

AUTHORITY: 38 U.S.C. 210(c)(1).

SOURCE: 48 FR 6969, Feb. 17, 1983, unless otherwise noted.

Subpart A-Appeals-General

§ 19.1 Appellate jurisdiction.

(a) General. All questions on claims involving benefits under the laws administered by the Veterans Administration are subject to review on appeal to the Administrator of Veterans Affairs, decisions in such cases to be made by the Board of Veterans Appeals. In its decisions, the Board is bound by the regulations of the Veterans Administration, instructions of the Administrator and precedent opinions of the General Counsel. The Board may exercise the same authority as the department having original jurisdictional responsibility.

(b) Appeals as to jurisdiction. All claimants have the right to appeal a determination made by the agency of original jurisdiction that the Board does not have jurisdictional authority to review a particular issue. This includes questions relating to the timely filing and adequacy of the notice of disagreement and the substantive appeal. Only the Board of Veterans Appeals will make final decisions with respect to its jurisdiction.

(Authority: 38 U.S.C. 4004)

§ 19.2 Subject matter of appeals.

The Board's appellate jurisdiction extends to all questions on claims involving benefits under the laws administered by the Veterans Administration. (38 U.S.C. 4004(a)) More common examples of the issues over which the Board has jurisdiction are as follows:

Entitlement to and benefits resulting from service-connected disability or death. (38 U.S.C. Chapter 11)

Dependency and indemnity compensation for service-connected death including benefits in certain cases of inservice or serviceconnected deaths (38 U.S.C. 412) and certification and entitlement to death gratuity. (38 U.S.C. 423)

Entitlement to nonservice-connected disability pension, service pension and death pension. (38 U.S.C. Chapter 15)

Training and rehabilitation for veterans with service-connected disabilities. (38 U.S.C. Chapter 31)

Post-Vietnam Era Veterans' Educational Assistance. (38 U.S.C. Chapter 32)

Veterans' Educational Assistance. (38 U.S.C. Chapter 34)

Survivors' and Dependents' Educational Assistance. (38 U.S.C. Chapter 35)

Matters arising under National Service Life Insurance and U.S. Government Life Insurance. (38 U.S.C. Chapter 19)

Payment or reimbursement for unauthorized medical expenses. (38 U.S.C. 628)

Burial benefits. (38 U.S.C. Chapter 23) Benefits for persons disabled by medical treatment or vocational rehabilitation. (38 U.S.C. 351)

Basic eligibility for home, condominium and mobile home loans as well as waiver of payment of loan guaranty indebtedness. (38 U.S.C. Chapter 37 and 3102)

Waiver or recovery of overpayments. (38 U.S.C. 3102)

Forfeiture of rights, claims or benefits for fraud, treason, or subversive activities. (38 U.S.C. 3502-3505)

Character of discharge. (38 U.S.C. 3103) Determinations as to duty status. (38 U.S.C. 101(21)-(24))

Determinations as to marital status. (38 U.S.C. 101(3), 103)

Determination of dependency status as parent or child. (38 U.S.C. 101(4), (5))

Validity of claims and effective dates of benefits. (38 U.S.C. Chapter 51) Apportionment of benefits. (38 U.S.C.

3107)

Payment of benefits while a veteran is hospitalized and questions regarding an estate of an incompetent institutionalized veteran. (38 U.S.C. 3203)

Benefits for surviving spouses and children of deceased veterans under Pub. L. 97377, section 156. (38 CFR 3.812(d))

[48 FR 6969, Feb. 17, 1983, as amended at 50 FR 36993, Sept. 11, 1985]

§ 19.3 Appellate jurisdiction of determinations of the Department of Medicine and Surgery.

(a) The Board's appellate jurisdiction extends to questions of eligibility for hospitalization, outpatient treatment, and nursing home and domiciliary care, for devices such as prostheses, canes, wheelchairs, back braces, orthopedic shoes, and similar appliances, for automobile and automobile adaptive equipment assistance, and for other benefits administered by the Department of Medicine and Surgery.

(b) Medical determinations, such as determinations of the need for and appropriateness of specific types of medical care and treatment for an individual, are not adjudicative matters and are beyond the Board's jurisdiction. Typical examples of these issues are whether a particular drug should be prescribed, whether a specific type of physiotherapy should be ordered, and similar judgmental treatment decisions with which an attending physician may be faced.

(Authority: 38 U.S.C. 4004(a))

§ 19.4 Restriction as to change in payments pending determination of administrative appeals.

If an administrative appeal is taken from a review or determination by the agency of original jurisdiction pursuant to Rules 38 through 42 (§§ 19.138 through 19.142), that review or determination cannot effect any change in payments until after a decision is made by the Board of Veterans Appeals.

(Authority: 38 U.S.C. 4006)

§ 19.5 Delegation of authority to Chairman and Vice Chairman, Board of Veterans Appeals.

The Chairman and/or Vice Chairman have authority delegated by the Administrator to:

(a) Approve the assumption of appellate jurisdiction of an adjudicative determination which has not become

final in order to grant a favorable benefit.

(b) Approve an administrative allowance on an adjudicative determination which has become final by appellate decision or failure to timely appeal.

(c) Order Central Office investigations of matters before the Board. (Authority: 38 U.S.C. 210(b), 212(a))

§ 19.6 Disclosure of information.

It is the policy of the Board of Veterans Appeals for the full text of appellate decisions and statements of the case to be disclosed to appellants. In those situations where disclosing certain information directly to the appellant would not be in conformance with 38 U.S.C. 3301, that information will be removed from the decision or statement of the case and the remaining text will be furnished the appellant. A full-text appellate decision or statement of the case, however, will be disclosed to the designated representative unless the relationship between the appellant and representative is such (for example, a parent or spouse) that disclosure to the representative would be as harmful as if made to the appellant.

(Authority: 38 U.S.C. 4005(d)(2))

CROSS REFERENCE: Access to records. See § 1.577(d).

Subpart B-Appeals-Rules of
Practice
GENERAL

§ 19.101 Rule 1; Authority, scope of rules, and construction.

(a) Authority. Pursuant to the authority vested in the Administrator of Veterans Affairs (38 U.S.C. 210(c)(1)) there are hereby issued revised Rules of Practice which govern proceedings in appeals to the Board of Veterans Appeals.

(b) Scope. These rules govern the practices and procedures for processing appeals for the Board of Veterans Appeals. Where in any instance there is no applicable rule or procedure, the presiding Board member before whom the matter is pending may prescribe a procedure which is consistent with the