§ 7105. — Filing of notice of disagreement and appeal.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 38USC7105]
TITLE 38--VETERANS' BENEFITS
PART V--BOARDS, ADMINISTRATIONS, AND SERVICES
CHAPTER 71--BOARD OF VETERANS' APPEALS
Sec. 7105. Filing of notice of disagreement and appeal
(a) Appellate review will be initiated by a notice of disagreement
and completed by a substantive appeal after a statement of the case is
furnished as prescribed in this section. Each appellant will be accorded
hearing and representation rights pursuant to the provisions of this
chapter and regulations of the Secretary.
(b)(1) Except in the case of simultaneously contested claims, notice
of disagreement shall be filed within one year from the date of mailing
of notice of the result of initial review or determination. Such notice,
and appeals, must be in writing and be filed with the activity which
entered the determination with which disagreement is expressed
(hereinafter referred to as the ``agency of original jurisdiction''). A
notice of disagreement postmarked before the expiration of the one-year
period will be accepted as timely filed.
(2) Notices of disagreement, and appeals, must be in writing and may
be filed by the claimant, the claimant's legal guardian, or such
accredited representative, attorney, or authorized agent as may be
selected by the claimant or legal guardian. Not more than one recognized
organization, attorney, or agent will be recognized at any one time in
the prosecution of a claim.
(c) If no notice of disagreement is filed in accordance with this
chapter within the prescribed period, the action or determination shall
become final and the claim will not thereafter be reopened or allowed,
except as may otherwise be provided by regulations not inconsistent with
this title.
(d)(1) Where the claimant, or the claimant's representative, within
the time specified in this chapter, files a notice of disagreement with
the decision of the agency of original jurisdiction, such agency will
take such development or review action as it deems proper under the
provisions of regulations not inconsistent with this title. If such
action does not resolve the disagreement either by granting the benefit
sought or through withdrawal of the notice of disagreement, such agency
shall prepare a statement of the case. A statement of the case shall
include the following:
(A) A summary of the evidence in the case pertinent to the issue
or issues with which disagreement has been expressed.
(B) A citation to pertinent laws and regulations and a
discussion of how such laws and regulations affect the agency's
decision.
(C) The decision on each issue and a summary of the reasons for
such decision.
(2) A statement of the case, as required by this subsection, will
not disclose matters that would be contrary to section 5701 of this
title or otherwise contrary to the public interest. Such matters may be
disclosed to a designated representative unless the relationship between
the claimant and the representative is such that disclosure to the
representative would be as harmful as if made to the claimant.
(3) Copies of the ``statement of the case'' prescribed in paragraph
(1) of this subsection will be submitted to the claimant and to the
claimant's representative, if there is one. The claimant will be
afforded a period of sixty days from the date the statement of the case
is mailed to file the formal appeal. This may be extended for a
reasonable period on request for good cause shown. The appeal should set
out specific allegations of error of fact or law, such allegations
related to specific items in the statement of the case. The benefits
sought on appeal must be clearly identified. The agency of original
jurisdiction may close the case for failure to respond after receipt of
the statement of the case, but questions as to timeliness or adequacy of
response shall be determined by the Board of Veterans' Appeals.
(4) The claimant in any case may not be presumed to agree with any
statement of fact contained in the statement of the case to which the
claimant does not specifically express agreement.
(5) The Board of Veterans' Appeals may dismiss any appeal which
fails to allege specific error of fact or law in the determination being
appealed.
(Added Pub. L. 87-666, Sec. 1, Sept. 19, 1962, 76 Stat. 553, Sec. 4005;
amended Pub. L. 99-576, title VII, Sec. 701(85), Oct. 28, 1986, 100
Stat. 3298; Pub. L. 100-687, div. A, title II, Secs. 203(b), 206, Nov.
18, 1988, 102 Stat. 4111; renumbered Sec. 7105 and amended Pub. L. 102-
40, title IV, Sec. 402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239;
Pub. L. 102-83, Sec. 4(b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 404, 405;
Pub. L. 107-14, Sec. 8(a)(16), June 5, 2001, 115 Stat. 35.)
Amendments
2001--Subsec. (b)(1). Pub. L. 107-14 substituted ``hereinafter'' for
``hereafter''.
1991--Pub. L. 102-40, Sec. 402(b)(1), renumbered section 4005 of
this title as this section.
Subsec. (a). Pub. L. 102-83 substituted ``Secretary'' for
``Administrator''.
Subsec. (d)(2). Pub. L. 102-40, Sec. 402(d)(1), substituted ``5701''
for ``3301''.
1988--Subsec. (d)(1). Pub. L. 100-687, Sec. 206(a), substituted
``shall prepare a statement of the case. A statement of the case shall
include the following:'' for ``will prepare a statement of the case
consisting of--'', added subpars. (A) to (C), and struck out former
subpars. (A) to (C) which read as follows:
``(A) A summary of the evidence in the case pertinent to the issue
or issues with which disagreement has been expressed;
``(B) A citation or discussion of the pertinent law, regulations,
and, where applicable, the provisions of the Schedule for Rating
Disabilities;
``(C) The decision on such issue or issues and a summary of the
reasons therefor.''
Subsec. (d)(4). Pub. L. 100-687, Sec. 206(b), amended par. (4)
generally. Prior to amendment, par. (4) read as follows: ``The appellant
will be presumed to be in agreement with any statement of fact contained
in the statement of the case to which no exception is taken.''
Subsec. (d)(5). Pub. L. 100-687, Sec. 203(b), struck out ``will base
its decision on the entire record and'' after ``of Veterans' Appeals''.
1986--Subsec. (b)(2). Pub. L. 99-576, Sec. 701(85), substituted
``the claimant's'' for ``his'' and ``the claimant or legal guardian''
for ``him''.
Subsec. (d)(1), (3). Pub. L. 99-576, Sec. 701(85)(A), substituted
``the claimant's'' for ``his''.
Effective Date of 1988 Amendment
Amendment by Pub. L. 100-687 effective Jan. 1, 1989, see section
401(d) of Pub. L. 100-687 set out as an Effective Date note under
section 7251 of this title.
Effective Date
Section 3 of Pub. L. 87-666 provided that: ``The amendments made by
this Act [enacting sections 4005, 4005A, and 4006 [now 7105, 7105A, and
7106] of this title, redesignating former section 4006 as 4007 [now
7107] of this title, and repealing former sections 4005 and 4007 of this
title] shall be effective January 1, 1963.''
Section Referred to in Other Sections
This section is referred to in sections 7105A, 7106 of this title.
