(a) Request for a change in representation within 90 days following Notice of Disagreement. An appellant and his or her representative, if any, will be granted a period of 90 days following receipt of a Notice of Disagreement, or up to and including the date the appellate decision is promulgated by the Board, whichever comes first, during which they may submit a request for a change in representation.
(b) Subsequent request for a change in representation. Following the expiration of the period described in paragraph (a) of this section, the Board will not accept a request for a change in representation except when the appellant demonstrates on motion that there was good cause for the delay. Examples of good cause include, but are not limited to, illness of the appellant or the representative which precluded action during the period; death of an individual representative; illness or incapacity of an individual representative which renders it impractical for an appellant to continue with him or her as representative; and withdrawal of an individual representative. Such motions must be in writing and must include the name of the veteran; the name of the claimant or appellant if other than the veteran (e.g., a veteran's survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual's behalf) or the name of any substitute claimant or appellant; the applicable Department of Veterans Affairs file number; and an explanation of why the request for a change in representation could not be accomplished in a timely manner. Such motions must be filed at the following address: Board of Veterans' Appeals, P.O. Box 27063, Washington, DC 20038. Depending upon the ruling on the motion, action will be taken as follows:
(1) Good cause not shown. If good cause is not shown, the request for a change in representation will be referred to the agency of original jurisdiction for association with the appellant's file for any pending or subsequently received claims upon completion of the Board's action on the pending appeal without action by the Board concerning the request.
(2) Good cause shown. If good cause is shown, the request for a change in representation will be honored.
(Authority: 38 U.S.C. 5902, 5903, 5904, 7105, 7105A)
[84 FR 191, Jan. 18, 2019]
Notes of Decisions
Larry A. Pelegrini v. Anthony J. Principi, 18 Vet. App. 112 (Vet. App. 2004).
· cites it 12× “9 (a)(2) is invalid because, in conjunction with the amended rule codified at 38 C.F.R. § 20.1304 , it allows the Board to consider additional evidence without having to remand the case to the AOJ for initial consideration and without having to obtain the appellant's waiver.”
Walter A. Bryant v. Eric K. Shinseki, 23 Vet. App. 488 (Vet. App. 2010).
· cites it 4× “103 (c)(2)(2009), see also 38 C.F.R. § 20.1304 (2009) (procedures to obtain a hearing at the Board), to explain fully the issues and suggest the submission of evidence that the claimant may have overlooked.”
Sutton v. Brown, 9 Vet. App. 553 (Vet. App. 1996).
· cites it 10× “1304 provides in pertinent part: (a) Request for a change in representation, request for a personal hearing, or submission of additional evidence within 90 days following notification of certification and transfer of records.”
Kutscherousky v. West, 12 Vet. App. 369 (Vet. App. 1999).
· cites it 3× “d that when a claim is remanded by the Court, the appellant may, as a matter of right, submit additional argument but may submit additional evidence, as a matter of right, only “[i]f the Court’s remand permits the appellant to submit additional evidence”, and that, otherwise,…”
Denise Jarrell v. R. James Nicholson, 20 Vet. App. 326 (Vet. App. 2006).
· cites it 4× “9 (a)(2) because, in conjunction with 38 C.F.R. § 20.1304 , it allowed Board to consider new evidence without having to remand to RO and without having to obtain appellant's waiver).”
Disabled Am. Vets. v. Sec'y of Vets. Affairs, 327 F.3d 1339 (Fed. Cir. 2003).
· cites it 12× “9 (a)(2) is invalid because, in conjunction with the amended rule codified at 38 C.F.R. § 20.1304 , it allows the Board to consider additional evidence without having to remand the case to the AOJ for initial consideration and without having to obtain the appellant’s waiver.”
Leamon Johnson , Jr. v. Anthony J. Principi, 17 Vet. App. 436 (Vet. App. 2004).
· cites it 4× “22, 2002), in conjunction with 38 C.F.R § 20.1304 (2002), was invalid because it was "contrary to the requirement of 38 U.”
Holliday v. Principi, 14 Vet. App. 280 (Vet. App. 2001).
· cites it 2× “38 C.F.R. § 20.1304 (c) (2000) (expressly permitting claimant to waive remand from BVA to RO for issuance of Supplemental Statement of the Case when additional pertinent evidence is submitted by claimant); Sutton v.”
Harmon Carter, Jr. v. Eric K. Shinseki, 26 Vet. App. 534 (Vet. App. 2014).
· cites it 4× “4 The 90-Day Letter relates to a requirement of 38 C.F.R. § 20.1304 . The notice provided in this letter and its attached "90-Day Letter Response Form" varies in a significant way from the text of § 20.”
Hibbard v. West, 13 Vet. App. 546 (Vet. App. 2000).
· cites it 4× “The appellant has filed a brief and a reply, challenging the validity of 38 C.F.R. § 20.1304 , and, in the alternative, arguing that the Board failed to provide sufficient reasons or bases for not awarding an increased rating on an extraschedular basis.”
Pauline Prickett v. R. James Nicholson, 20 Vet. App. 370 (Vet. App. 2006).
“Prickett contends that the Board did not consider whether she failed to submit additional evidence because of the notice error, she raises no argument regarding the effect of the notice error on her ability to request a change in representation or a Board hearing.”
— 38 C.F.R. § 20.1304(a) — 2 cases
— 38 C.F.R. § 20.1304(c) — 2 cases
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