[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]



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 

AGENCY: Department of Veterans Affairs.

ACTION: Final rule; confirmation of effective date and addition of 
applicability date.


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 
    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 

    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]