PREC 14-01    Return to the Board of Cases Remanded for Evidentiary Development --38 C.F.R. §§ 19.9, 19.31, 19.38       Citation:  Vet. Aff. Op. Gen. Couns. Prec. 14-01, VAOPGCPREC 14-01, 2001 CAUTION:  However, see Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), which invalidated VA regulations permitting the Board of Veterans' Appeals to consider evidence that was not already considered by the agency of original jurisdiction, without obtaining the appellant’s waiver of the right to initial consideration by the agency of original jurisdiction.

A. May the Board of Veterans’ Appeals (Board) itself complete the development it ordered be completed by an agency of original jurisdiction (AOJ) in a remanded case?

B. May an AOJ to which the Board has remanded a case for development return the case to the Board for completion of the development by the Board?

C. If the Board may recall a remanded case before the AOJ has completed the development ordered in the remand, must the AOJ readjudicate the case and issue a supplemental statement of the case (SSOC) as to any pertinent evidence it has received following the prior remand by the Board?

A. Section 19.9(a) of title 38, Code of Federal Regulations, currently requires the Board of Veterans’ Appeals (Board) to remand a case to the agency of original jurisdiction (AOJ) if the Board determines that additional evidence, clarification of the evidence, or correction of a procedural defect is essential for a proper appellate decision. Provided that section 19.9(a) is amended to permit the Board either to remand the case to the AOJ or to direct its own personnel to undertake the action necessary, the Board may itself complete the evidentiary development it ordered to be completed by the AOJ in a remanded case, subject to any regulatory requirements for vacating remand orders that may be established.

B. Section 19.38 to title 38, Code of Federal Regulations, requires the AOJ to which the Board has remanded a case to complete the development ordered in the remand. The subordinate status of AOJs relative to the Board and the nature of the statutory and regulatory adjudication and appeal scheme require that AOJs abide by the Board’s decision to remand a case for development. Accordingly, an AOJ may not itself return a case remanded to it by the Board before it has completed (or attempted to complete) the development ordered in the remand. However, the Board may vacate its previous remand order, recall the remanded case, and complete the necessary development itself. Before any Board remand order is vacated, however, 38 C.F.R. § 20.904 should be amended to expressly authorize this action and, preferably, to specify standards to guide the exercise of discretion by the Board. Under such a regulation, if the Board would rather itself conduct the development of a case that it has already remanded to an AOJ, it could vacate the remand order and call the case back to the Board, regardless of whether the AOJ has completed the ordered development.

C. Section 19.31 of title 38, Code of Federal Regulations, generally requires the AOJ to issue a supplemental statement of the case (SSOC) following development pursuant to a remand by the Board unless the Board specifies that a SSOC is not required. Provided that section 19.31 is amended so as not to require a SSOC if pertinent evidence is developed pursuant to a Board remand in a case that is recalled by the Board, the AOJ need not readjudicate the case or issue a SSOC as to any such evidence. In addition, 38 C.F.R. § 20.903 should be amended to assure that the appellant is given adequate notice and an opportunity to respond if the Board intends to rely on additional evidence developed by the AOJ in a claim remanded and then recalled by the Board.