PREC 01-2003    Impact of Disabled American Veterans v. Secretary of Veterans Affairs, Case Nos. 02-7304, -7305, -7316 (Fed. Cir. May 1, 2003)    Citation: Vet. Aff. Op. Gen. Couns. Prec. 1-2003, VAOPGCPREC 1-2003, 2003

QUESTIONS PRESENTED:

A.  What effect does the decision of the United States Court of Appeals for the Federal Circuit in Disabled American Veterans v. Secretary of Veterans Affairs, Case Nos. 02-7304, -7305, -7316 (Fed. Cir. May 1, 2003) (DAV decision), have on the authority of the Board of Veterans’ Appeals (Board) to develop evidence with respect to cases pending before the Board on appeal?

B.  May the Board adjudicate claims where new evidence has been obtained if the appellant waives initial consideration of the new evidence by first-tier adjudicators in the Veterans Benefits Administration (VBA)?

C.  What effect does the DAV decision have on the Board’s authority to send claimants the notice required by 38 U.S.C. § 5103(a) in cases pending before the Board on appeal?

D.  Is the Board required to identify and readjudicate any claims decided before May 1, 2003 (the date of the DAV decision) in which the Board applied the regulatory provisions that the Federal Circuit held invalid in the DAV decision?

A.  The decision of the United States Court of Appeals for the Federal Circuit in Disabled American Veterans v. Secretary of Veterans Affairs, Case Nos. 02-7304, -7305, -7316 (Fed. Cir. May 1, 2003) (DAV decision), does not prohibit the Board of Veterans’ Appeals (Board) from developing evidence in a case on appeal before the Board, provided that the Board does not adjudicate the claim based on any new evidence it obtains unless the claimant waives initial consideration of such evidence by first-tier adjudicators in the Veterans Benefits Administration (VBA).  Existing statutes and regulations may reasonably be construed to authorize the Board to develop evidence in such cases.  If considered necessary or appropriate to clarify the Board’s authority, the Secretary of Veterans Affairs may expressly delegate to the Board the authority to develop evidence in accordance with 38 U.S.C. § 5103A.

B.  The Board may adjudicate claims where new evidence has been obtained if the appellant waives initial consideration of the new evidence by VBA.

C.  The DAV decision does not prohibit the Board from issuing the notice required by 38 U.S.C. § 5103(a) in a case on appeal before the Board.  Existing statutes and regulations may reasonably be construed to authorize the Board to provide the required notice in such cases.  If considered necessary or appropriate to clarify the Board’s authority, the Secretary of Veterans Affairs may expressly delegate to the Board the authority to issue notice required by 38 U.S.C. § 5103(a).  The content of any notice issued by the Board must adhere to the requirements of 38 U.S.C. § 5103 as described by the Federal Circuit in the DAV decision.

D.  The Board is not required to identify and readjudicate any claims decided by the Board before May 1, 2003 (the date of the DAV decision) in which the Board applied the regulatory provisions that the Federal Circuit held invalid in the DAV decision.  However, if a claim was finally denied by the Board and the claimant subsequently submits requested information or evidence within one year after the date of the request, the Department of Veterans Affairs must review the claim.