(a) General. Decisions of the Board will be based on a de novo review of the evidence of record at the time of the agency of original jurisdiction decision on the issue or issues on appeal, and any additional evidence submitted pursuant to Rules 302 and 303 (§§ 20.302 and 20.303). Any findings favorable to the claimant as identified by the agency of original jurisdiction in notification of a decision or in a prior Board decision on an issue on appeal are binding on all agency of original jurisdiction and Board of Veterans' Appeals adjudicators, unless rebutted by evidence that identifies a clear and unmistakable error in the favorable finding. For purposes of this section, findings means conclusions on questions of fact and application of law to facts made by an adjudicator concerning the issue under review.
(b) Content. The decision of the Board will be in writing and will set forth specifically the issue or issues under appellate consideration. Except with respect to appeals which are dismissed because an appellant seeking nonmonetary benefits has died while the appeal was pending, the decision will also include:
(1) Findings of fact and conclusions of law on all material issues of fact and law presented on the record;
(2) The reasons or bases for those findings and conclusions;
(3) A general statement reflecting whether any evidence was received at a time when not permitted under subpart D, and informing the appellant that any such evidence was not considered by the Board and of the options available to have that evidence reviewed by the Department of Veterans Affairs; and
(4) An order granting or denying the benefit or benefits sought on appeal, dismissing the appeal, or remanding the issue or issues as described in Rule 802 (§ 20.802).
(c) Panel decision. A decision by a panel of Members will be by a majority vote of the panel Members.
(Authority: 38 U.S.C. 7104(d))
[84 FR 188, Jan. 18, 2019]
Notes of Decisions
Paul Cardoza v. Denis McDonough (Vet. App. 2024).
· cites it 3× “§ 7104 (d); 38 C.F.R. § 20.801 (b) (2024). A Board action that violates section 7104(d) is nonetheless a final Board determination that is reviewable by the Court.”
200210-60852 (Board of Vet. App. 2020).
· cites it 2× “§ 5104 (b)(4); 5104A; 38 C.F.R. § 20.801 (a). Favorable findings can only be rebutted by evidence that identifies a clear and unmistakable error in the favorable finding.”
James M. Kernz v. Denis McDonough (Vet. App. 2023).
· cites it 2× “On September 14, 2023, the Secretary filed an amended Solze notice that is substantively the same as the one filed on September 11, 2023.”
Franklin A. Green v. Denis McDonough (Vet. App. 2024).
· cites it 2× “See 38 C.F.R. § 20.801 (a) (2023) ("Decisions of the Board will be based on a de novo review of the evidence of record at the time of the agency of original jurisdiction decision on the issue or issues on appeal, and any additional evidence submitted pursuant to .”
190211-3647 (Board of Vet. App. 2019).
“18, 2019) (to be codified at 38 C.F.R. § 20.801 ). Evidence was added to the claims file during a period of time when new evidence was not allowed.”
190731-72833 (Board of Vet. App. 2020).
“When the Agency of Original Jurisdiction (AOJ) reopens a previously denied claim under the Appeals Modernization Act framework, as applicable here, the Board is bound by this favorable finding and is not required to make an independent determination as to whether the previously…”
191010-37617 (Board of Vet. App. 2020).
“See 38 C.F.R. § 20.801 (a). Here, favorable findings of the Veteran’s MOS as an electrician and his work on generators has been conceded (9/13/2019 Rating Decision - Narrative).”
190702-10727 (Board of Vet. App. 2020).
“The Veteran reports that he was raped during basic training in the Marine Corps because he could not keep up due to his asthma and the recruits took it out on him.”
200612-91294 (Board of Vet. App. 2020).
“See 38 C.F.R. § 20.801 . See AMA, Pub. L. No.”
191217-49980 (Board of Vet. App. 2020).
“38 C.F.R. § 20.801 (2019). The remaining question before the Board is that of nexus.”
200204-60785 (Board of Vet. App. 2020).
“38 C.F.R. § 20.801 (a). In appealing the denial of service connection to the Board, the Veteran requested direct review of the evidence considered by AOJ in the rating decision.”
190923-33342 (Board of Vet. App. 2021).
“There are no other auditory findings in the record showing that the Veteran’s hearing loss met the requirements of hearing loss for VA purposes as set out in 38 C.F.R. § 3.385 . The AOJ’s favorable finding of a diagnosis of hearing loss was therefore clearly and unmistakably an…”
— 38 C.F.R. § 20.801(b) — 1 case
Paul Cardoza v. Denis McDonough (Vet. App. 2024).
“§ 7104 (d); 38 C.F.R. § 20.801 (b) (2024). A Board action that violates section 7104(d) is nonetheless a final Board determination that is reviewable by the Court.”
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