ࡱ> PROM Wbjbj== %dWWvJllll8J,$v |c c c c 4c c :c  . ^lp,0JW c Department of Memorandum Veterans Affairs Date: December 14, 2001 VAOPGCPREC 14-2001 From: General Counsel (022) Subj: Return to the Board of Cases Remanded for Evidentiary Development38 C.F.R. 19.9, 19.31, 19.38 To: Chairman, Board of Veterans Appeals (01) QUESTIONS PRESENTED: A. May the Board of Veterans Appeals (Board) itself complete the development it ordered be completed by an agency of original jurisdiction (AOJ) in a remanded case? B. May an AOJ to which the Board has remanded a case for development return the case to the Board for completion of the development by the Board? C. If the Board may recall a remanded case before the AOJ has completed the development ordered in the remand, must the AOJ readjudicate the case and issue a supplemental statement of the case (SSOC) as to any pertinent evidence it has received following the prior remand by the Board? COMMENTS: 1. Your questions were prompted by recommendations of the VA Claims Processing Task Force in its October 2001 report to the Secretary. One of the Task Forces short-term recommendations is to Require [Board] Processing of Remands. VA Claims Processing Task Force, Report to the Secretary of Veterans Affairs 34 (Oct. 2001). One component of that recommendation is that [the Veterans Benefits Administration (VBA)] should return [Board] remands for priority processing. Priority should be given to working the approximately 1,800 cases that were remanded prior to [fiscal year] 1998. Id. For purposes of your inquiry, we will assume that the Task Force means to recommend that VBA return remanded cases to the Board without completing development and that it first return cases remanded before fiscal year 1998. 2. Until now, if a case appealed to the Board needed additional evidentiary development, the AOJ, rather than the Board, performed most of the development. The Boards current appeals regulations require that the Board remand a case to the AOJ [i]f further evidence or clarification of the evidence or correction of a procedural defect is essential for a proper appellate decision. 38 C.F.R. 19.9(a). Recently, VA proposed to amend section19.9(a) to permit the Board, if further evidence or clarification of the evidence or correction of a procedural defect is essential for a proper appellate decision, either to remand the case to the AOJ or to direct Board personnel to undertake the action essential for a proper appellate decision. 66 Fed. Reg. 40,942, 40,944 (2001). You have asked us, in considering the questions presented, to assume that the Board will have this authority to either remand a case or itself perform the development needed. 3. Governing statutes do not prevent the Board from developing the evidence in a case appealed to it. There has long been explicit statutory authority for specific types of evidentiary development. For example, the Board may obtain an advisory medical opinion from medical experts who are not employees of VA if the medical complexity or controversy involved in an appealed case warrants getting such expert medical opinion. 38 U.S.C. 7109(a). Also, before the Board decides an appeal, it must afford the appellant an opportunity for a hearing, which contemplates the Board receiving testimonial and documentary evidence. 38 U.S.C. 7107(b). We do not interpret the presence of these explicit statutory authorities to preclude other forms of evidentiary development by the Board. The Board is the Secretarys statutory agent for deciding appeals of decisions on claims for benefits. 38 U.S.C. 7104(a). The Secretary may develop the evidence in a case and may lawfully delegate that authority to his or her agents, including the Board, so long as the delegation does not conflict with any statute. To our knowledge, there is no statutory provision that would preclude the Boards development of evidence in a case appealed to it. The regulatory amendment to section19.9(a) you referenced would constitute such a lawful delegation of the Secretarys authority to develop evidence. 4. In our opinion, the fact that the Board has remanded a case to an AOJ to develop the evidence does not deprive the Board of its authority to develop the evidence itself in the case. Were the Board to determine, upon the return of a case to the Board after the AOJ had completed development on remand, that additional evidence is still needed, the Board could itself develop the evidence in that case. We can discern no reason for concluding that a case returned to the Board before the AOJ completes development would not also be subject to further development by the Board. The Board may develop evidence in a remanded case whether or not the AOJ has completed the development ordered in the remand. We do not suggest that the Board should develop evidence in a remanded case that is still at the AOJ. This would lead to confusion and duplication of effort. The question is then whether a remanded case may be returned to the Board before the AOJ has completed (or attempted to complete) the ordered development. 5. An AOJ may not freely return to the Board a case that the Board has remanded for development. The return of a remanded case before the AOJ has completed ordered development is generally precluded by 38 C.F.R. 19.38, which provides, [w]hen a case is remanded by the Board ... , the [AOJ] will complete the additional development of the evidence or procedural development required. The amendments proposed by VA to permit the Board to either remand a case or itself perform essential development would not change section19.38s requirement that an AOJ complete the development ordered by the Board in a remand. Generally, the AOJs return of a remanded case to the Board before the AOJ has completed the ordered development (or at least made good-faith efforts to complete the development) would violate section19.38. 6. Even if section19.38 were amended so as to allow an AOJ to return a remanded case before it completed the ordered development, it would be inappropriate for an AOJ to unilaterally decide to return a remanded case to the Board. First, under the statutory and regulatory adjudication and appeal scheme, AOJs are subordinate to, and subject to direction from, the Board. See Smith v. Brown, 35 F.3d 1516, 152526 (Fed. Cir. 1994) (under adjudicatory scheme established by Congress, Board is a superior, appellate tribunal and AOJs are inferior, trial-level adjudicators). Once the Board has remanded a case and ordered development by an AOJ, the AOJs subordinate status requires that it abide by the Boards order and complete (or make a good-faith attempt to complete) the ordered development. Second, the proposed amendments to section19.9(a) are meant to vest discretion in the Board as to whether development required in a case will be performed by the AOJ or the Board itself. Once the Board has exercised that discretion and remanded a case for development, the statutory and regulatory adjudication scheme requires that the AOJ abide by the Boards determination and complete (or make a good-faith attempt to complete) the ordered development. Under the proposed regulation, allowing an AOJ to return a remanded case on its own initiative would undermine the Boards discretion to determine whether the AOJ or the Board will perform the development. The same considerations of relative status and preservation of the Boards discretion dictate that an AOJ not be allowed to unilaterally return to the Board a case that was remanded before the proposed amendments become effective, until the AOJ has completed or attempted to complete the ordered development. 7. Notwithstanding the foregoing, a remanded case may be returned to the Board on the Boards initiative. The Boards Rules of Practice currently recognize that the Board may, on its own motion, vacate final appellate decisions under certain circumstances. 38 C.F.R. 20.904. A remand order is only a preliminary order, not a final decision. 38 C.F.R. 20.1100(b). We can discern no legal reason why a Board remand order, non-final in nature, cannot also be subject to vacation by the Board. However, before any Board remand order is vacated, section20.904 should be amended to expressly authorize this action and, preferably, to specify standards to guide the exercise of discretion by the Board. Under such a regulation, if the Board would rather itself conduct the development of a case that it has already remanded to an AOJ, it could vacate the remand order and call the case back to the Board, regardless of whether the AOJ has completed the ordered development. We express no opinion on the advisability of the Board vacating its remand orders and recalling cases, beyond the lawfulness of its doing so. Whether development in an appealed case should be performed by an AOJ or the Board is not a legal matter. 8. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (Veterans Court) held that, a remand by this Court or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders and that a remand by the Court or the Board imposes upon the Secretary of Veterans Affairs a concomitant duty to ensure compliance with the terms of the remand. We do not read the Stegall holding as generally requiring that the development ordered in either a court or Board remand be performed by any particular organizational element of VA. The failures in Stegall that resulted in the Veterans Court again remanding that case consisted of not providing the kinds of examinations ordered by the Board with an opportunity for the examiners to review Stegalls claim file. 11 Vet. App. at27071. As the courts holding recognized, the duty to ensure compliance with remand orders ultimately falls on the Secretary, but absent statutory direction the Secretary has discretion to decide which of his or her agents will execute the actions needed for compliance. Thus, in our opinion, a claimants Stegall right to compliance with remand orders does not generally preclude the Board from completing development originally ordered in a remand to an AOJ. 9. Our conclusion that Stegall does not require that the development ordered in a remand be performed by any particular organizational element of VA is a general rule. There may be exceptions, justified by the circumstances of a particular case. For example, in Colayong v. West, 12 Vet. App. 524, 535 (1999), the Veterans Court remanded a claim for the Board to obtain a medical opinion because the regional office had improperly framed questions in its prior request for a medical opinion. If a Veterans Court remand order specifies performance by a particular VA organizational element for a specified reason, then performance by another organizational element may very well violate the claimants Stegall right to compliance with the remand order. 10. Accordingly, the fact that an AOJ has been directed to perform some particular development would generally reflect only the historical fact that AOJs perform most claim development. Provided that the necessary development is properly performed, performance of the development by the Board rather than the AOJ would not violate any right to compliance with the terms of a remand. Any right to such compliance would cease when the Board vacates its remand order. However, in rare cases, the identity of the developer may be integral to the terms of the remand. In such cases, the Boards performance of development ordered to be performed by an AOJ would violate the terms of the remand. In such cases, the AOJ must execute the actions it is directed to take. A right to compliance with the terms of a Veterans Court remand could not be affected by the Boards vacation of its own remand order. 11. The Boards ability to vacate a prior remand order and recall the remanded case to the Board raises the question of whether the AOJ would in such a case have to readjudicate the claim and issue a SSOC in accordance with 38 C.F.R. 19.31 as to any pertinent evidence it had received following the Boards remand. As specifically applicable to remands from the Board, section19.31 generally requires issuance of a SSOC following development pursuant to a remand by the Board ... unless the Board specifies in the remand that a [SSOC] is not required. Proposed 38 C.F.R. 19.31(c) contains a similar rule. We do not find in section19.31 an exception to the general requirement that a SSOC be issued following development pursuant to a remand for cases in which the AOJ has not completed the development ordered by the Board. 12. Section19.31 could be amended to specify that a SSOC is not required if the Board vacates a remand order and recalls the case before the AOJ has completed development and readjudicated the claim. We do not find any statutory requirement that the AOJ readjudicate a claim or issue a SSOC if additional evidence has been obtained after the AOJ has certified the appeal and initially transferred the record to the Board. In fact, in recently proposing amendments to section19.31, VA explained that a SSOC will not be required if the Board obtains additional pertinent evidence on its own or if additional evidence is received by the AOJ after the appeal has been certified and transferred to the Board. 66 Fed. Reg. at40,944. Absent the requirement in section19.31, a SSOC would not be required if the development ordered in a remand were begun by the AOJ but completed by the Board. 13. Stegall would not provide any right to a readjudication or issuance of a SSOC in a remanded case recalled by the Board. Any right to a readjudication and SSOC granted by the terms of the Board remand would cease when the Board vacates the remand order. The Boards routine inclusion in remand orders of directions to readjudicate the claim and issue a SSOC unless all benefits sought on appeal are granted merely reflects section19.31s requirement and the traditional procedure of first allowing an AOJ to consider additional evidence. See 38 C.F.R. 20.1304(c) (right to AOJ review in first instance). VA has recently proposed amending 38 C.F.R. 20.1304 to eliminate the right to AOJ review of new evidence in the first instance. 66 Fed. Reg. at40,94546. 14. With respect to your assertion that an SSOC generally must be issued by [a regional office] following a Board remand in order to ensure that the Board does not rely on any evidence obtained after the issuance of the most recent SSOC, and thereby commit a Thurber fair process violation, we offer the following observations. In Thurber v. Brown, 5 Vet. App. 119, 126 (1993), the Veterans Court held that, before the Board, in deciding a claim, relies on any evidence developed or obtained by it subsequent to the issuance of the most recent statement of the case or SSOC, the Board must provide the claimant with reasonable notice of such evidence and of the reliance proposed to be placed on it, and a reasonable opportunity to respond. It appears to us that compliance with Thurber requires not that the AOJ issue a SSOC, but rather that the Board determine whether it intends to rely on any evidence developed or obtained since issuance of the statement of the case or the most recent SSOC. If the Board intends to rely on such evidence, then it must provide the claimant with adequate notice and an opportunity to respond. Accordingly, in conjunction with recently proposed amendments to section19.9, VA also proposed to amend 38 C.F.R. 20.903 to give the claimant notice and an opportunity to respond to evidence obtained by the Board. 66 Fed. Reg. at40,945. Section20.903 could be further amended to assure adequate notice and an opportunity to respond (without issuance of a SSOC) if additional evidence has been developed by the AOJ in a claim remanded and then recalled by the Board. 15. Of course, if an AOJ has not conducted any development by the time the Board vacates its remand order and recalls the case, neither section19.31 nor fair process concerns would require the issuance of a SSOC. In such a case, both readjudication of the claim by the AOJ and issuance of a SSOC would be pointless. HELD: A. Section19.9(a) of title38, Code of Federal Regulations, currently requires the Board of Veterans Appeals (Board) to remand a case to the agency of original jurisdiction (AOJ) if the Board determines that additional evidence, clarification of the evidence, or correction of a procedural defect is essential for a proper appellate decision. Provided that section19.9(a) is amended to permit the Board either to remand the case to the AOJ or to direct its own personnel to undertake the action necessary, the Board may itself complete the evidentiary development it ordered to be completed by the AOJ in a remanded case, subject to any regulatory requirements for vacating remand orders that may be established. B. Section19.38 to title38, Code of Federal Regulations, requires the AOJ to which the Board has remanded a case to complete the development ordered in the remand. The subordinate status of AOJs relative to the Board and the nature of the statutory and regulatory adjudication and appeal scheme require that AOJs abide by the Boards decision to remand a case for development. Accordingly, an AOJ may not itself return a case remanded to it by the Board before it has completed (or attempted to complete) the development ordered in the remand. However, the Board may vacate its previous remand order, recall the remanded case, and complete the necessary development itself. Before any Board remand order is vacated, however, 38 C.F.R. 20.904 should be amended to expressly authorize this action and, preferably, to specify standards to guide the exercise of discretion by the Board. Under such a regulation, if the Board would rather itself conduct the development of a case that it has already remanded to an AOJ, it could vacate the remand order and call the case back to the Board, regardless of whether the AOJ has completed the ordered development. C. Section19.31 of title38, Code of Federal Regulations, generally requires the AOJ to issue a supplemental statement of the case (SSOC) following development pursuant to a remand by the Board unless the Board specifies that a SSOC is not required. Provided that section19.31 is amended so as not to require a SSOC if pertinent evidence is developed pursuant to a Board remand in a case that is recalled by the Board, the AOJ need not readjudicate the case or issue a SSOC as to any such evidence. In addition, 38 C.F.R. 20.903 should be amended to assure that the appellant is given adequate notice and an opportunity to respond if the Board intends to rely on additional evidence developed by the AOJ in a claim remanded and then recalled by the Board. Tim S. McClain  There are exceptions to this general requirement. Section19.9(a) does not require the Board to remand to obtain an opinion from the Under Secretary for Health, the Armed Forces Institute of Pathology, or an independent medical expert under 38 C.F.R. 20.901; to supplement the record with recognized medical treatises; or to obtain evidence in a matter over which the Board has original jurisdiction, such as the reasonableness of an attorney fee. 38 C.F.R. 19.9(b); VAOPGCPREC1692.  A case remanded by the Board before the proposed amendment to section19.9(a) goes into effect will nevertheless be subject to section19.9(a) as amended if the appeal is still pending when the amendment becomes effective. In proposing that amendment, VA proposed that it would apply to appeals pending, whether at the Board ..., the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit, on the effective date of the amendment. 66 Fed. Reg. at40,944. Critical to whether an appeal would fall within the scope of this provision is whether the appeal is pending on the date the amendment becomes effective, not where it is pending. We do not view the clause whether at the Board ..., the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit as being restrictive, but rather as providing a nonexhaustive list of examples. The provision is meant to cover any appeal pending when the amendments become effective. The appeal in a case remanded by the Board and still at the AOJ is pending unless the appellant withdraws it or all benefits sought on appeal are granted. See 38 C.F.R. 20.200 (appeal perfected by filing a substantive appeal), 20.1100(b) (remand is preliminary order, not final decision), and 19.38 (appeal will be returned to Board after development is completed, unless appellant withdraws it or all benefits sought on appeal are granted). 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