§ 7101. — Composition of Board of Veterans' Appeals.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 38USC7101]
TITLE 38--VETERANS' BENEFITS
PART V--BOARDS, ADMINISTRATIONS, AND SERVICES
CHAPTER 71--BOARD OF VETERANS' APPEALS
Sec. 7101. Composition of Board of Veterans' Appeals
(a) There is in the Department a Board of Veterans' Appeals
(hereinafter in this chapter referred to as the ``Board''). The Board is
under the administrative control and supervision of a chairman directly
responsible to the Secretary. The Board shall consist of a Chairman, a
Vice Chairman, and such number of members as may be found necessary in
order to conduct hearings and dispose of appeals properly before the
Board in a timely manner. The Board shall have such other professional,
administrative, clerical, and stenographic personnel as are necessary in
conducting hearings and considering and disposing of appeals properly
before the Board. The Board shall have sufficient personnel under the
preceding sentence to enable the Board to conduct hearings and consider
and dispose of appeals properly before the Board in a timely manner.
(b)(1) The Chairman shall be appointed by the President, by and with
the advice and consent of the Senate, for a term of six years. The
Chairman shall be subject to the same ethical and legal limitations and
restrictions concerning involvement in political activities as apply to
judges of the United States Court of Appeals for Veterans Claims.
(2) The Chairman may be removed by the President for misconduct,
inefficiency, neglect of duty, or engaging in the practice of law or for
physical or mental disability which, in the opinion of the President,
prevents the proper execution of the Chairman's duties. The Chairman may
not be removed from office by the President on any other grounds. Any
such removal may only be made after notice and opportunity for hearing.
(3) The Chairman may be appointed under this subsection to more than
one term. If, upon the expiration of the term of office for which the
Chairman was appointed, the position of Chairman would become vacant,
the individual serving as Chairman may, with the approval of the
Secretary, continue to serve as Chairman until either appointed to
another term or a successor is appointed, but not beyond the end of the
Congress during which the term of office expired.
(4) The Secretary shall designate one member of the Board as Vice
Chairman. The Vice Chairman shall perform such functions as the Chairman
may specify. Such member shall serve as Vice Chairman at the pleasure of
the Secretary.
(c)(1)(A) The Chairman may from time to time designate one or more
employees of the Department to serve as acting members of the Board.
Except as provided in subparagraph (B), any such designation shall be
for a period not to exceed 90 days, as determined by the Chairman.
(B) An individual designated as an acting member of the Board may
continue to serve as an acting member of the Board in the making of any
determination on a proceeding for which the individual was designated as
an acting member of the Board, notwithstanding the termination of the
period of designation of the individual as an acting member of the Board
under subparagraph (A) or (C).
(C) An individual may not serve as an acting member of the Board for
more than 270 days during any one-year period.
(D) At no time may the number of acting members exceed 20 percent of
the total of the number of Board members and acting Board members
combined.
(2) In each annual report to the Congress under section 529 of this
title, the Secretary shall provide detailed descriptions of the
activities undertaken and plans made in the fiscal year for which the
report is made with respect to the authority provided by paragraph (1)
of this subsection. In each such report, the Secretary shall indicate,
in terms of full-time employee equivalents, the number of acting members
of the Board designated under such paragraph (1) during the year for
which the report is made.
(d)(1) After the end of each fiscal year, the Chairman shall prepare
a report on the activities of the Board during that fiscal year and the
projected activities of the Board for the fiscal year during which the
report is prepared and the next fiscal year. Such report shall be
included in the documents providing detailed information on the budget
for the Department that the Secretary submits to the Congress in
conjunction with the President's budget submission for any fiscal year
pursuant to section 1105 of title 31.
(2) Each such report shall include, with respect to the preceding
fiscal year, information specifying--
(A) the number of cases appealed to the Board during that year;
(B) the number of cases pending before the Board at the
beginning and at the end of that year;
(C) the number of such cases which were filed during each of the
36 months preceding the current fiscal year;
(D) the average length of time a case was before the Board
between the time of the filing of an appeal and the disposition
during the preceding fiscal year;
(E) the number of members of the Board at the end of the year
and the number of professional, administrative, clerical,
stenographic, and other personnel employed by the Board at the end
of the preceding fiscal year; and
(F) the number of employees of the Department designated under
subsection (c)(1) to serve as acting members of the Board during
that year and the number of cases in which each such member
participated during that year.
(3) The projections in each such report for the current fiscal year
and for the next fiscal year shall include (for each such year)--
(A) an estimate of the number of cases to be appealed to the
Board; and
(B) an evaluation of the ability of the Board (based on existing
and projected personnel levels) to ensure timely disposition of such
appeals as required by section 7101(a) of this title.
(e) A performance incentive that is authorized by law for officers
and employees of the Federal Government may be awarded to a member of
the Board (including an acting member) by reason of that member's
service on the Board only if the Chairman of the Board determines that
such member should be awarded that incentive. A determination by the
Chairman for such purpose shall be made taking into consideration the
quality of performance of the Board member.
(Pub. L. 85-857, Sept. 2, 1958, 72 Stat. 1240, Sec. 4001; Pub. L. 98-
223, title II, Sec. 208(a)-(c), Mar. 2, 1984, 98 Stat. 43, 44; Pub. L.
100-687, div. A, title II, Secs. 201(a), 202(b), 208, 209, Nov. 18,
1988, 102 Stat. 4109, 4110, 4112; renumbered Sec. 7101 and amended Pub.
L. 102-40, title IV, Sec. 402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238,
239; Pub. L. 102-54, Sec. 14(e)(2), June 13, 1991, 105 Stat. 287; Pub.
L. 102-83, Secs. 2(c)(3), 4(a)(3), (4), (b)(1), (2)(E), Aug. 6, 1991,
105 Stat. 402, 404, 405; Pub. L. 103-271, Secs. 2-5, July 1, 1994, 108
Stat. 740, 741; Pub. L. 103-446, title II, Secs. 201(d), 203, Nov. 2,
1994, 108 Stat. 4657; Pub. L. 105-368, title V, Sec. 512(a)(1), Nov. 11,
1998, 112 Stat. 3341; Pub. L. 107-14, Sec. 8(a)(16), June 5, 2001, 115
Stat. 35.)
Amendments
2001--Subsec. (a). Pub. L. 107-14 substituted ``hereinafter'' for
``hereafter''.
1998--Subsec. (b)(1). Pub. L. 105-368 substituted ``Court of Appeals
for Veterans Claims'' for ``Court of Veterans Appeals''.
1994--Subsec. (a). Pub. L. 103-271, Sec. 2, struck out ``(not more
than 65)'' after ``such number''.
Subsec. (b). Pub. L. 103-446, Sec. 201(d)(1), (2), designated as
par. (2) the text in par. (1) beginning ``The Chairman may be removed''
and struck out former par. (2) which read as follows:
``(2)(A) The other members of the Board (including the Vice
Chairman) shall be appointed by the Secretary, with the approval of the
President, based upon recommendations of the Chairman. Each such member
shall be appointed for a term of nine years.
``(B) A member of the Board (other than the Chairman) may be removed
by the Secretary upon the recommendation of the Chairman. In the case of
a removal that would be covered by section 7521 of title 5 in the case
of an administrative law judge, a removal of a member of the Board under
this paragraph shall be carried out subject to the same requirements as
apply to removal of an administrative law judge under that section.
Section 554(a)(2) of title 5 shall not apply to a removal action under
this subparagraph. In such a removal action, a member shall have the
rights set out in section 7513(b) of such title.''
Subsec. (b)(1). Pub. L. 103-271, Sec. 3, inserted after first
sentence ``The Chairman shall be subject to the same ethical and legal
limitations and restrictions concerning involvement in political
activities as apply to judges of the United States Court of Veterans
Appeals.''
Subsec. (b)(3). Pub. L. 103-446, Secs. 201(d)(3), 203, substituted
``The Chairman'' for ``Members (including the Chairman)'' and inserted
at end ``If, upon the expiration of the term of office for which the
Chairman was appointed, the position of Chairman would become vacant,
the individual serving as Chairman may, with the approval of the
Secretary, continue to serve as Chairman until either appointed to
another term or a successor is appointed, but not beyond the end of the
Congress during which the term of office expired.''
Subsec. (c)(1). Pub. L. 103-271, Sec. 4(a)(1), added par. (1) and
struck out former par. (1) which read as follows: ``Subject to paragraph
(2) of this subsection, the Chairman may from time to time designate
employees of the Department to serve as temporary members of the Board.
Any such designation shall be for a period of not to exceed one year, as
determined by the Chairman. An individual may not serve as a temporary
member of the Board for more than 24 months during any 48-month
period.''
Subsec. (c)(2), (3). Pub. L. 103-271, Sec. 4(a)(2)-(4), redesignated
par. (3) as (2), substituted ``the number of acting members of the Board
designated under such paragraph (1) during the year for which the report
is made.'' for ``the number of temporary Board members designated under
this subsection and the number of acting Board members designated under
section 7102(a)(2)(A)(ii) of this title during the year for which the
report is made.'', and struck out former par. (2) which read as follows:
``Designation under paragraph (1) of this subsection of an individual as
a temporary member of the Board may not be made when there are fewer
than 65 members of the Board.''
Subsec. (d)(2)(F). Pub. L. 103-271, Sec. 5, added subpar. (F).
Subsec. (d)(3)(B). Pub. L. 103-271, Sec. 4(b)(2), substituted
``section 7101(a)'' for ``section 7103(d)''.
Subsec. (e). Pub. L. 103-271, Sec. 4(b)(1), substituted ``an acting
member'' for ``a temporary or acting member''.
1991--Pub. L. 102-40, Sec. 402(b)(1), renumbered section 4001 of
this title as this section.
Subsec. (a). Pub. L. 102-83, Sec. 4(b)(1), (2)(E), substituted
``Secretary'' for ``Administrator''.
Pub. L. 102-83, Sec. 4(a)(3), (4), substituted ``Department'' for
``Veterans' Administration''.
Pub. L. 102-54 amended subsec. (a) as in effect immediately before
the enactment of Pub. L. 102-40 by substituting ``There is'' for ``There
shall be'' and ``. The Board is under the administrative'' for ``under
the administrative''.
Subsec. (b)(2), (4). Pub. L. 102-83, Sec. 4(b)(1), (2)(E),
substituted ``Secretary'' for ``Administrator'' wherever appearing.
Subsec. (c)(1). Pub. L. 102-83, Sec. 4(a)(3), (4), substituted
``Department'' for ``Veterans' Administration''.
Subsec. (c)(3). Pub. L. 102-83, Sec. 4(b)(1), (2)(E), substituted
``Secretary'' for ``Administrator'' in two places.
Pub. L. 102-83, Sec. 2(c)(3), substituted ``section 529'' for
``section 214''.
Pub. L. 102-40, Sec. 402(d)(1), substituted ``7102(a)(2)(A)(ii)''
for ``4002(a)(2)(A)(ii)''.
Subsec. (d)(1). Pub. L. 102-83, Sec. 4(b)(1), (2)(E), substituted
``Secretary'' for ``Administrator''.
Pub. L. 102-83, Sec. 4(a)(3), (4), substituted ``Department'' for
``Veterans' Administration''.
Subsec. (d)(3)(B). Pub. L. 102-40, Sec. 402(d)(1), substituted
``7103(d)'' for ``4003(d)''.
1988--Subsec. (a). Pub. L. 100-687, Sec. 202(b), inserted ``and''
after ``Vice Chairman,'' substituted ``necessary in order to conduct
hearings and dispose of appeals properly before the Board in a timely
manner. The Board shall have'' for ``necessary, and'', and inserted
provisions which required that Board have sufficient personnel to
conduct hearings and consider and dispose of appeals.
Subsec. (b). Pub. L. 100-687, Sec. 201(a), amended subsec. (b)
generally. Prior to amendment, subsec. (b) read as follows: ``Members of
the Board (including the Chairman and Vice Chairman) shall be appointed
by the Administrator with the approval of the President.''
Subsec. (d). Pub. L. 100-687, Sec. 208, added subsec. (d).
Subsec. (e). Pub. L. 100-687, Sec. 209, added subsec. (e).
1984--Subsec. (a). Pub. L. 98-223, Sec. 208(a), (c), substituted
``65'' for ``fifty'' and struck out ``associate'' before ``members''.
Subsec. (c). Pub. L. 98-223, Sec. 208(b), added subsec. (c).
Effective Date of 1998 Amendment
Amendment by Pub. L. 105-368 effective on first day of first month
beginning more than 90 days after Nov. 11, 1998, see section 513 of Pub.
L. 105-368, set out as a note under section 7251 of this title.
Effective Date of 1988 Amendment
Amendment by section 201(a) of Pub. L. 100-687 effective Feb. 1,
1989, amendment by section 202(b) of Pub. L. 100-687 effective Jan. 1,
1989, and amendment by sections 208 and 209 of Pub. L. 100-687 effective
Nov. 18, 1988, see section 401(b)-(d) of Pub. L. 100-687, set out as an
Effective Date note under section 7251 of this title.
Board of Veterans' Appeals
Section 201(c), (d) of Pub. L. 100-687 provided that:
``(c) Transition to New Board.--(1) Appointments of members of the
Board of Veterans' Appeals under subsection (b)(2) of section 4001 [now
7101] of title 38, United States Code (as amended by subsection (a)),
may not be made until a Chairman is appointed under subsection (b)(1) of
that section.
``(2) An individual who is serving as a member of the Board on the
date of the enactment of this Act [Nov. 18, 1988] may continue to serve
as a member until the earlier of--
``(A) the date on which the individual's successor (as
designated by the Administrator) is appointed under subsection
(b)(2) of that section, or
``(B) the end of the 180-day period beginning on the day after
the date on which the Chairman is appointed under subsection (b)(1)
of such section.
``(d) Initial Terms of Office.--Notwithstanding the second sentence
of section 4001(b)(2) [now 7101(b)(2)] of title 38, United States Code
(as amended by subsection (a)), specifying the term for which members of
the Board of Veterans' Appeals shall be appointed, of the members first
appointed under that section--
``(A) 22 shall be appointed for a term of three years;
``(B) 22 shall be appointed for a term of six years; and
``(C) 22 shall be appointed for a term of nine years,
as determined by the Administrator [now Secretary] at the time of the
initial appointments.''
