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PREC 16-92 Authority of the Board of Veterans' Appeals to address matters not considered by the Agency of Original Jurisdicti
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PREC 16-92 Authority of the Board of Veterans' Appeals to address matters not considered by the Agency of Original Jurisdiction Citation: Vet. Aff. Op. Gen. Couns. Prec. 16-92, VAOPGCPREC 16-92, 1992 QUESTIONS PRESENTED:
a. Is it permissible for the Board of Veterans' Appeals (BVA) to consider evidence which has not been considered by the agency of original jurisdiction (AOJ)?
b. Is it permissible for BVA to consider issues which have not been considered by the AOJ?
c. Is it permissible for BVA to consider argument or subissues concerning a claim, or statutes, regulations, or Court of Veterans Appeals (COVA) analyses, which have not been considered by the AOJ?
d. If BVA determines that the statement of the case furnished to an appellant does not meet the requirements of 38 U.S.C. § 7105(d) (formerly s 4005(d)), must BVA remand the appeal to the AOJ to cure the deficiency in the statement of the case?
HELD:
a. Statutes and VA regulations prescribe the circumstances under which the Board of Veterans' Appeals may consider evidence which has not been considered by the agency of original jurisdiction. Section 20.1304(c) of title 38, Code of Federal Regulations, generally requires that the Board refer to the agency of original jurisdiction for review evidence received by the Board following certification of an appeal unless such review is waived by the claimant or the benefit claimed may be allowed without referral. Under 38 U.S.C. § 7109 and 38 C.F.R. § 20.901, certain classes of evidence, i.e., independent medical opinions and opinions of the Chief Medical Director, the General Counsel, and the Armed Forces Institute of Pathology, need not be referred to the agency of
original jurisdiction, but the appellant must be given an opportunity to review and respond to such evidence before a decision is rendered.
b. Generally, the Board of Veterans' Appeals, as an appellate body, is not authorized to make final determinations on issues which have not been considered by the agency of original jurisdiction.
c. Although statutes and regulations establish the Board of Veterans' Appeals as an appellate body, nonetheless, when an appeal is certified to the Board, the Board is required to conduct a de novo review of the agency of original jurisdiction's benefit decision. Hence, the Board may consider arguments, subissues, statutes, regulations, or Court of Veterans Appeals analyses which have not been considered by the agency of original jurisdiction, if the claimant will not be prejudiced by its actions.
d. The Board of Veterans' Appeals need not remand an appeal to the agency of original jurisdiction to cure a deficiency in the statement of the case if the Board determines the deficiency was not prejudicial to the interests of the appellant.
VETERANS ADMINISTRATION GENERAL COUNSEL
Vet. Aff. Op. Gen. Couns. Prec. 16-92
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