or a prior Supplemental Statement of the Case is discovered, or when, for any other reason, the Statement of the Case or a prior Supplemental Statement of the Case is inadequate. A Supplemental Statement of the Case will also be issued following development pursuant to a remand by the Board unless the only purpose of the remand is to assemble records previously considered by the agency of original jurisdiction and properly discussed in a prior Statement of the Case or Supplemental Statement of the Case or unless the Board specifies in the remand that a Supplemental Statement of the Case is not required. If the case is remanded to cure a procedural defect, a Supplemental Statement of the Case will be issued to assure full notification to the appellant of the status of the case, unless the Board directs otherwise. (Authority: 38 U.S.C. 7105(d))

§ 19.32 Closing of appeal for failure to respond to Statement of the Case.

The agency of original jurisdiction may close the appeal without notice to an appellant or his or her representative for failure to respond to a Statement of the Case within the period allowed. However, if a Substantive Appeal is subsequently received within the 1-year appeal period (60-day appeal period for simultaneously contested claims), the appeal will be considered to be reactivated. (Authority: 38 U.S.C. 7105(d)(3))

§ 19.33 Timely filing of Notice of Disagreement or Substantive Appeal questioned within the agency of original jurisdiction.

If, within the agency of original jurisdiction, there is a question as to the timely filing of a Notice of Disagreement or Substantive Appeal, the procedures for an administrative appeal must be followed.

(Authority: 38 U.S.C. 7105, 7106)

§ 19.34 Determination that Notice of Disagreement or Substantive Appeal was not timely filed protested by claimant or representative.

Whether a Notice of Disagreement or Substantive Appeal has been filed on time is an appealable issue. If the claimant or his or her representative protests an adverse determination made by the agency of original jurisdiction with respect to timely filing of the Notice of Disagreement or Substantive Appeal, the claimant will be furnished a Statement of the Case.

(Authority: 38 U.S.C. 7105)

§ 19.35 Certification of appeals.

Following receipt of the Substantive Appeal, the agency of original jurisdiction will certify the case to the Board of Veterans' Ap peals. Certification is accomplished by the completion of VA Form 8, "Certification of Appeal." The certification is used for administra

The purposes and does not serve to either confer or deprive the Etard of Veterans' Appeals of jurisdiction over an issue.

uthority: 38 U.S.C. 7105)

253

29.36 Notification of certification of appeal and transfer of appellate record.

When an appeal is certified to the Board of Veterans' Appeals for pellate review and the appellate record is transferred to the ard, the appellant and his or her representative, if any, will be tified in writing of the certification and transfer and of the time ait for requesting a change in representation, for requesting a rsonal hearing, and for submitting additional evidence described Rule of Practice 1304 (§ 20.1304 of this chapter).

uthority: 38 U.S.C. 7105)

9.37 Consideration of additional evidence received by the agency of original jurisdiction after an appeal has been initiated.

(a) Evidence received prior to transfer of records to Board of Vetins' Appeals. Evidence received by the agency of original jurisdicn prior to transfer of the records to the Board of Veterans' Apals after an appeal has been initiated (including evidence reived after certification has been completed) will be referred to the propriate rating or authorization activity for review and disposin. If the Statement of the Case and any prior Supplemental atements of the Case were prepared before the receipt of the adional evidence, a Supplemental Statement of the Case will be mished to the appellant and his or her representative as proled in § 19.31 of this part, unless the additional evidence received plicates evidence previously of record which was discussed in the atement of the Case or a prior Supplemental Statement of the se or the additional evidence is not relevant to the issue, or ises, on appeal.

(b) Evidence received after transfer of records to the Board of VetIns' Appeals. Additional evidence received by the agency of origiI jurisdiction after the records have been transferred to the ard of Veterans' Appeals for appellate consideration will be forBarded to the Board if it has a bearing on the appellate issue or jues. The Board will then determine what action is required with spect to the additional evidence.

uthority: 38 U.S.C. 7105(d)(1))

9.38 Action by agency of original jurisdiction when remand received.

When a case is remanded by the Board of Veterans' Appeals, the ency of original jurisdiction will complete the additional developent of the evidence or procedural development required. Followg completion of the development, the case will be reviewed to demine whether the additional development, together with the evince which was previously of record, supports the allowance of all nefits sought on appeal. If so, the Board and the appellant and 8 or her representative, if any, will be promptly informed. If any

benefits sought on appeal remain denied following this review, the agency of original jurisdiction will issue a Supplemental Statement of the Case concerning the additional development pertaining to those issues in accordance with the provisions of §19.31 of this part. Following the 60-day period allowed for a response to the Supplemental Statement of the Case pursuant to Rule of Practice 302, paragraph (c) (§ 20.302(c) of this chapter), the case will be returned to the Board for further appellate processing unless the appeal is withdrawn or review of the response to the Supplemental Statement of the Case results in the allowance of all benefits sought on appeal. Remanded cases will not be closed for failure to respond to the Supplemental Statement of the Case. (Authority 38 U.S.C. 7105(d)(1))

§§ 19.39-19.49 [Reserved]

SUBPART C-Administrative Appeals

§ 19.50 Nature and form of administrative appeal.

(a) General. An administrative appeal from an agency of original jurisdiction determination is an appeal taken by an official of the Department of Veterans Affairs authorized to do so to resolve a conflict of opinion or a question pertaining to a claim involving benefits under laws administered by the Department of Veterans Affairs. Such appeals may be taken not only from determinations involving dissenting opinions, but also from unanimous determinations denying or allowing the benefit claimed in whole or in part. (b) Form of Appeal. An administrative appeal is entered by a memorandum entitled "Administrative Appeal" in which the issues and the basis for the appeal are set forth. (Authority: 38 U.S.C. 7106)

§ 19.51 Officials authorized to file administrative appeals and time limits for filing.

The Secretary of Veterans Affairs authorizes certain officials of the Department of Veterans Affairs to file administrative appeals within specified time limits, as follows:

(a) Central Office-(1) Officials. The Under Secretary for Benefits or a service director of the Veterans Benefits Administration, the Under Secretary for Health or a service director of the Veterans Health Administration, and the General Counsel.

(2) Time limit. Such officials must file an administrative appeal within 1 year from the date of mailing notice of such determination to the claimant.

(b) Agencies of original jurisdiction-(1) Officials. Directors, adjudication officers, and officials at comparable levels in field offices deciding any claims for benefits, from any determination originating within their established jurisdiction.

(2) Time limit. The Director or comparable official must file an administrative appeal within 6 months from the date of mailing notice of the determination to the claimant. Officials below the level of Director must do so within 60 days from such date.

(c) The date of mailing. With respect to paragraphs (a) and (b) of this section, the date of mailing notice of the determination to

the claimant will be presumed to be the same as the date of the letter of notification to the claimant.

(Authority: 38 U.S.C. 7106)

$19.52 Notification to claimant of filing of administrative appeal.

When an administrative appeal is entered, the claimant and his or her representative, if any, will be promptly furnished a copy of the memorandum entitled "Administrative Appeal," or an adequate summary thereof, outlining the question at issue. They will be allowed a period of 60 days to join in the appeal if they so desire. The claimant will also be advised of the effect of such action and of the preservation of normal appeal rights if he or she does not elect to join in the administrative appeal. (Authority: 38 U.S.C. 7106)

$19.53 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 §§ 19.50 and 19.51 of this part, that review or determination may not be used to effect any change in payments until after a decision is made by the Board of Veterans' Appeals. (Authority: 38 U.S.C. 7106)

19.54 19.74 [Reserved]

SUBPART D-Hearings Before the Board of Veterans' Appeals at Department of Veterans Affairs Field Facilities

$19.75 Hearing docket.

Hearings on appeal held at Department of Veterans Affairs field facilities will be scheduled for each area served by a regional office in the order in which requests for such hearings within that area are received by the Department except when a motion to advance the case on the hearing docket is granted under Rule of Practice 704(f) (38 CFR 20.704(f)).

(Authority: 38 U.S.C. 7107)

19.76 Notice of time and place of hearing before the Board of Veterans' Appeals at Department of Veterans Affairs field facilities.

The agency of original jurisdiction will notify the appellant and his or her representative of the place and time of a hearing before the Board of Veterans' Appeals at a Department of Veterans Affairs field facility not less than 30 days prior to the hearing date. This time limitation does not apply to hearings which have been rescheduled due to a postponement requested by an appellant, or on his or her behalf, or due to the prior failure of an appellant to appear at a scheduled hearing before the Board of Veterans' Appeals at a Department of Veterans Affairs field facility with good cause. The right to notice at least 30 days in advance will be

deemed to have been waived if an appellant accepts an earlier hearing date due to the cancellation of another previously sched uled hearing.

(Authority: 38 U.S.C. 7107)

§§ 19.78-19.99 [Reserved]

SUBPART E-Simultaneously Contested Claims

§ 19.100 Notification of right to appeal in simultaneously contested claims.

All interested parties will be specifically notified of the action taken by the agency of original jurisdiction in a simultaneously contested claim and of the right and time limit for initiation of an appeal, as well as hearing and representation rights. (Authority: 38 U.S.C. 7105A(a))

§ 19.101 Notice to contesting parties on receipt of Notice of Disagreement in simultaneously contested claims.

Upon the filing of a Notice of Disagreement in a simultaneously contested claim, all interested parties and their representatives will be furnished a copy of the Statement of the Case. The Statement of the Case so furnished will contain only information which directly affects the payment or potential payment of the benefit(s) which is (are) the subject of that contested claim. The interested parties who filed Notices of Disagreement will be duly notified of the right to file, and the time limit within which to file, a Substantive Appeal and will be furnished with VA Form 9, "Appeal to Board of Veterans' Appeals."

(Authority: 38 U.S.C. 7105A(b))

§ 19.102 Notice of appeal to other contesting parties in simultaneously contested claims.

When a Substantive Appeal is filed in a simultaneously contested claim, the content of the Substantive Appeal will be furnished to the other contesting parties to the extent that it contains information which could directly affect the payment or potential payment of the benefit which is the subject of the contested claim. (Authority: 38 U.S.C. 7105A(b))