(a) Remand. If further evidence, clarification of the evidence, correction of a procedural defect, or any other action is essential for a proper appellate decision, a Veterans Law Judge or panel of Veterans Law Judges shall remand the case to the agency of original jurisdiction, specifying the action to be undertaken.
(b) Referral. The Board shall refer to the agency of original jurisdiction for appropriate consideration and handling in the first instance all claims reasonably raised by the record that have not been initially adjudicated by the agency of original jurisdiction, except for claims over which the Board has original jurisdiction.
(c) Remand for a Statement of the Case. In cases before the Board in which a claimant has timely filed a Notice of Disagreement with a determination of the agency of original jurisdiction on a claim, but the record reflects that the agency of original jurisdiction has not subsequently granted the claim in full and has not furnished the claimant with a Statement of the Case, the Board shall remand the claim to the agency of original jurisdiction with instructions to prepare and issue a Statement of the Case in accordance with the provisions of part 19, subpart B of this chapter. A remand for a Statement of the Case is not required if the claimant, consistent with the withdrawal requirements of § 19.55 of this chapter, withdraws the Notice of Disagreement.
(d) Exceptions. A remand or referral to the agency of original jurisdiction is not necessary for any of the following purposes:
(1) Clarifying a procedural matter before the Board, including the appellant's choice of representative before the Board, the issues on appeal, or requests for a hearing before the Board;
(2) Considering law not already considered by the agency of original jurisdiction, including, but not limited to, statutes, regulations, and court decisions;
(3) Reviewing additional evidence received by the Board, if, pursuant to Rule 1305 (§ 20.1305(c) of this part), the appellant or the appellant's representative waives the right to initial consideration by the agency of original jurisdiction, or if the Board determines that the benefit or benefits to which the evidence relates may be fully allowed on appeal;
(4) Requesting an opinion under Rule 906 (§ 20.906 of this part);
(5) Supplementing the record with a recognized medical treatise; or
(6) Considering a matter over which the Board has original jurisdiction.
(Authority: 38 U.S.C. 7102, 7103(c); 38 U.S.C. 7104(a), 7105 (2016)).
[67 FR 3104, Jan. 23, 2002, as amended at 69 FR 53808, Sept. 3, 2004; 76 FR 17547, Mar. 30, 2011. Redesignated at 84 FR 177, Jan. 18, 2019, as amended at 84 FR 4337, Feb. 15, 2019; 84 FR 34788, July 19, 2019]
Notes of Decisions
David J. Harms v. R. James Nicholson, 20 Vet. App. 238 (Vet. App. 2006).
· cites it 29× “Because 38 C.F.R. § 20.904 provides for vacatur of a Board decision "by the Board," this lack of clarity regarding the Deputy Vice Chairman's actions is disconcerting.”
Browne v. Principi, 16 Vet. App. 278 (Vet. App. 2002).
· cites it 5× “” Therein the Secretary states that new counsel has been assigned to the case, and that upon review of the issue, the Secretary now recognizes “that there is support for the proposition that the Rosier [v.”
Thurber v. Brown, 5 Vet. App. 119 (Vet. App. 1993).
“38 C.F.R. § 20.904 (1992). C. Special Provisions i.”
Deanna R. Polovick v. R. James Nicholson, 24 Vet. App. 257 (Vet. App. 2006).
· cites it 3× “On February 13, 2006, the Secretary filed a motion to dismiss the instant appeal for lack of jurisdiction, asserting that a December 6, 2005, decision of the Board, sua sponte, vacated the November 4 Board decision pursuant to its authority under 38 C.F.R. § 20.904 (2005). The…”
Garcia v. Wilkie, 908 F.3d 728 (Fed. Cir. 2018).
“In mid-2013, the Board denied the motion to vacate, treating it as governed by 38 C.F.R. § 20.904 ("Vacating a decision").”
Frazer v. Brown, 6 Vet. App. 19 (Vet. App. 1993).
· cites it 2× “at 257-59; see 38 C.F.R. § 20.904 (a)(3) (1992) (authorizing the BVA, upon its own motion, to vacate one of its decisions based on a denial of due process, including a prejudicial failure to afford appellant a personal hearing, but noting that where a hearing is subsequently…”
Harms v. Nicholson, 489 F.3d 1377 (Fed. Cir. 2007).
“Harms filed a motion to vacate that June 2002 decision under 38 C.F.R. § 20.904 . In his motion to vacate, Mr.”
Taylor v. Principi, 17 Vet. App. 148 (Vet. App. 2003).
“In the first Board decision, the Board construed the appellant’s arguments as a motion to vacate pursuant to 38 C.F.R. § 20.904 . The Board rejected the argument that an April 12, 1984, Statement of the Case (SOC) was so deficient that it constituted a denial of due process, and…”
Davis v. McDonald, 27 Vet. App. 992 (Fed. Cir. 2014).
“In his informal brief on appeal, Davis cites 38 C.F.R. § 20.904 (a)(2)— which authorizes the Board to vacate a decision when a statement of the case was not provided — but fails to explain how the Veterans Court misinterpreted this regulation.”
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