[Federal Register Volume 77, Number 228 (Tuesday, November 27, 2012)]
[Rules and Regulations]
[Pages 70686-70687]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-28621]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Parts 3 and 20
RIN 2900-AO43
Rules Governing Hearings Before the Agency of Original
Jurisdiction and the Board of Veterans' Appeals; Repeal of Prior Rule
Change
AGENCY: Department of Veterans Affairs.
ACTION: Final rule; confirmation of effective date and addition of
applicability date.
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SUMMARY: The Department of Veterans Affairs (VA) published a direct
final rule amending its hearing regulations to repeal a prior amendment
that specified that the provisions regarding hearings before the Agency
of Original Jurisdiction (AOJ) do not apply to hearings before the
Board of Veterans' Appeals (Board). VA received no significant adverse
comment concerning this rule. This document confirms that the direct
final rule became effective on June 18, 2012. Additionally, in the
preamble of the direct final rule, VA did not provide an applicability
date. This document provides an applicability date.
DATES: Effective Date: This final rule is effective June 18, 2012.
Applicability Date: This final rule shall apply to decisions issued
by the Board on or after August 23, 2011.
FOR FURTHER INFORMATION CONTACT: Laura H. Eskenazi, Principal Deputy
Vice Chairman, Board of Veterans' Appeals (01C), Department of Veterans
Affairs, 810 Vermont Avenue NW.,
[[Page 70687]]
Washington, DC 20420, (202) 632-4603. (This is not a toll-free number.)
SUPPLEMENTARY INFORMATION: On April 18, 2012, VA published in the
Federal Register, 77 FR 23128, a direct final rule to amend, in 38 CFR
part 3, Sec. 3.103(a) and (c)(1), and, in 38 CFR part 20, Sec. 20.706
and Appendix A to repeal amendments made by RIN 2900-AO06, ``Rules
Governing Hearings Before the Agency of Original Jurisdiction and the
Board of Veterans' Appeals; Clarification,'' a final rule that had been
published in the Federal Register on August 23, 2011. As discussed in
the preamble to the direct final rule, RIN 2900-AO06 altered language
upon which the United States Court of Appeals for Veterans Claims
(Veterans Court) relied in Bryant v. Shinseki, 23 Vet. App. 488 (2010),
which applied the provisions of Sec. 3.103(c)(2) to a Board hearing.
The Bryant Court held that the provisions of Sec. 3.103(c)(2) require
a ``Board hearing officer'' to ``fully explain the issues still
outstanding that are relevant and material to substantiating the
claim'' and to ``suggest that a claimant submit evidence on an issue
material to substantiating the claim when the record is missing any
evidence on that issue or when the testimony at the hearing raises an
issue for which there is no evidence in the record.'' Id. at 496-97.
VA determined that RIN 2900-AO06 should have followed the notice-
and-comment procedure of 5 U.S.C. 553(b) and (c) of the Administrative
Procedure Act and published the direct final rule to return the
regulations to the language in effect before August 23, 2011. The
direct final rule provided a 30-day comment period that ended on May
18, 2012. No significant adverse comment was received. VA received only
one comment on May 17, 2012, from the National Organization of
Veterans' Advocates, Inc. (NOVA). In pertinent part, NOVA stated,
``[T]he full, retroactive repeal of the invalid [amendments made by RIN
2900-AO06] should move forward regardless of whether the `VA receives a
significant adverse comment by May 18, 2012.' * * * VA has a
responsibility to repeal the rule as quickly as possible. Doing so will
help ensure that any veterans harmed by the invalid rule will be able
to obtain appropriate relief.'' Accordingly, under the direct final
rule procedures that were described in RIN 2900-AO43, the direct final
rule became effective on June 18, 2012, because no significant adverse
comment was received within the comment period.
We take this opportunity to address three points made by NOVA in
its comment. NOVA criticized the direct final rule procedure because it
was ``conditional rather than mandatory.'' As we anticipated when we
published the direct final rule, no significant adverse comment was
received by VA, and the direct final rule became effective on June 18,
2012. Accordingly, NOVA's concern about the action being conditional is
moot.
NOVA also urged that the ``repeal of [the amendments made by RIN
2900-AO06 be] retroactive to August 23, 2011.'' In the direct final
rule, we stated that we were ``repealing'' those amendments but
provided only an effective date--June 18, 2012. We did not provide an
applicability date. Accordingly, in this document we have added, in the
DATES section above, an Applicability Date paragraph, stating, ``This
final rule shall apply to decisions issued by the Board on or after
August 23, 2011.''
Finally, NOVA also encouraged VA to ``clarify that any veteran who
suffered any harm as a result of the invalid rule is now entitled to
obtain relief.'' In this regard, appellants have a statutory right to
appeal a Board decision to the Veterans Court within 120 days after the
date on which the appellant is notified of the Board's decision. See 38
U.S.C. 7266(a). Additionally, VA regulations permit appellants whose
claims have been denied by the Board to file with the Board at any time
a motion for reconsideration of the decision. See 38 CFR 20.1001. If
the Chairman of the Board denies a motion for reconsideration, that
denial and the underlying Board decision may be appealed to the
Veterans Court if a timely appeal was previously filed with the
Veterans Court with respect to that underlying Board decision. See
Mayer v. Brown, 37 F.3d 618, 620 (Fed. Cir. 1994), overruled in part by
Bailey v. West, 160 F.3d 1360 (Fed. Cir. 1998) (en banc). Also, the
Board's decision may be appealed to the Veterans Court if the appellant
filed the motion for reconsideration not later than 120 days after
being notified of the Board's decision and then appeals to the Veterans
Court not later than 120 days after reconsideration is denied. Rosler
v. Derwinski, 1 Vet. App. 241, 249 (1991); see also Linville v. West,
165 F.3d 1382, 1385-86 (Fed. Cir. 1999). Additionally, the 120-day
period to appeal a Board decision to the Veterans Court is subject to
the doctrine of equitable tolling within certain parameters. See Bove
v. Shinseki, 25 Vet. App. 136, 140 (2011). These procedures provide
adequate avenues of relief to any claimants who may have been adversely
affected by the repealed rule.
Signing Authority
The Secretary of Veterans Affairs, or designee, approved this
document and authorized the undersigned to sign and submit the document
to the Office of the Federal Register for publication electronically as
an official document of the Department of Veterans Affairs. John R.
Gingrich, Chief of Staff, Department of Veterans Affairs, Department of
Veterans Affairs, approved this document on November 20, 2012, for
publication.
Dated: November 20, 2012.
Robert C. McFetridge,
Director, Regulation Policy and Management, Office of the General
Counsel, Department of Veterans Affairs.
[FR Doc. 2012-28621 Filed 11-26-12; 8:45 am]
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