38 U.S.C. § 7104

Current through P.L. 118-106 (published on www.congress.gov on 10/04/2024)

Section 7104 - Jurisdiction of the Board; decisions; notice

(a) All questions in a matter which under section 511(a) of this title is subject to decision by the Secretary shall be subject to one review on appeal to the Secretary. Final decisions on such appeals shall be made by the Board. Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record and applicable provisions of law and regulation.

(b) Except as provided in section 5108 of this title, when a claim is disallowed by the Board, the claim may not thereafter be readjudicated and allowed and a claim based upon the same factual basis may not be considered.

(c) The Board shall be bound in its decisions by the regulations of the Department, instructions of the Secretary, and the precedent opinions of the chief legal officer of the Department.

(d) Each decision of the Board shall include-

(1) a written statement of the Board's findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record;

(2) a general statement-

(A) reflecting whether evidence was not considered in making the decision because the evidence was received at a time when not permitted under section 7113 of this title; and

(B) noting such options as may be available for having the evidence considered by the Department; and

(3) an order granting appropriate relief or denying relief.

(e) After reaching a decision on an appeal, the Board shall promptly issue notice (as that term is defined in section 5100 of this title) of such decision to the following:

(1) The appellant.

(2) Any other party with a right to notice of such decision.

(3) Any authorized representative of the appellant or party described in paragraph (2).

(f)

(1) The Secretary may provide notice under subsection (e) electronically if a claimant (or the claimant's representative) elects to receive such notice electronically.

(2) A claimant (or the claimant's representative) may revoke such an election at any time, by means prescribed by the Secretary.

38 U.S.C. § 7104

Pub. L. 85-857, Sept. 2, 1958, 72 Stat. 1241, §4004; Pub. L. 87-97, §1, July 20, 1961, 75 Stat. 215; Pub. L. 100-687, div. A, title I, §101(b), title II, §§203(a), 204, 205, Nov. 18, 1988, 102 Stat. 4106, 4110, 4111; renumbered §7104 and amended Pub. L. 102-40, title IV, §402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 102-54, §14(g)(2), June 13, 1991, 105 Stat. 288; Pub. L. 102-83, §4(a)(3), (4), (b)(1), (2)(E), (c), Aug. 6, 1991, 105 Stat. 404-406; Pub. L. 103-271, §§7(b)(1), July 1, 1994, 8, July 1, 1994, 108 Stat. 743; Pub. L. 104-275, title V, §509, Oct. 9, 1996, 110 Stat. 3344; Pub. L. 115-55, §2(p), (w)(2), Aug. 23, 2017, 131 Stat. 1111, 1114; Pub. L. 117-168, title VIII, §807(a)(5), Aug. 10, 2022, 136 Stat. 1806.

EDITORIAL NOTES

AMENDMENTS2022- Pub. L. 117-168, §807(a)(5)(A), inserted ";decisions; notice" after "Board" in section catchline.Subsecs. (e), (f). Pub. L. 117-168, §807(a)(5)(B), added subsecs. (e) and (f) and struck out former subsec. (e) which related to mailing a copy of a written decision to the claimant or mailing or otherwise sending a copy to an authorized representative of the claimant.2017-Subsec. (b). Pub. L. 115-55, §2(p), substituted "readjudicated" for "reopened". Subsec. (d)(2), (3). Pub. L. 115-55, §2(w)(2), added par. (2) and redesignated former par. (2) as (3). 1996-Subsec. (e). Pub. L. 104-275 amended subsec. (e) generally. Prior to amendment, subsec. (e) read as follows: "After reaching a decision in a case, the Board shall promptly mail a copy of its written decision to the claimant and the claimant's authorized representative (if any) at the last known address of the claimant and at the last known address of such representative (if any)." 1994-Subsec. (a). Pub. L. 103-271, §8, substituted "511(a)" for "211(a)". Pub. L. 103-271, §7(b)(1), struck out after second sentence "The Board shall decide any such appeal only after affording the claimant an opportunity for a hearing." 1991- Pub. L. 102-40, §402(b)(1), renumbered section 4004 of this title as this section.Subsec. (a). Pub. L. 102-83, §4(b)(1), (2)(E), substituted "Secretary" for "Administrator" in two places. Pub. L. 102-54 made a technical correction to Pub. L. 100-687, §101(b). See 1988 Amendment note below.Subsec. (b). Pub. L. 102-40, §402(d)(1), substituted "5108" for "3008". Subsec. (c). Pub. L. 102-83, §4(c), substituted "chief legal officer of the Department" for "chief law officer". Pub. L. 102-83, §4(b)(1), (2)(E), substituted "Secretary" for "Administrator". Pub. L. 102-83, §4(a)(3), (4), substituted "Department" for "Veterans' Administration". 1988-Subsec. (a). Pub. L. 100-687, §101(b), as amended by Pub. L. 102-54 substituted "All questions in a matter which under section 211(a) of this title is subject to decision by the Administrator" for "All questions on claims involving benefits under the laws administered by the Veterans' Administration". Pub. L. 100-687, §203(a), inserted at end "The Board shall decide any such appeal only after affording the claimant an opportunity for a hearing. Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record and applicable provisions of law and regulation."Subsec. (b). Pub. L. 100-687, §204, amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: "When a claim is disallowed by the Board, it may not thereafter be reopened and allowed, and no claim based upon the same factual basis shall be considered; however, where subsequent to disallowance of a claim, new and material evidence in the form of official reports from the proper service department is secured, the Board may authorize the reopening of the claim and review of the former decision."Subsecs. (d), (e). Pub. L. 100-687, §205, added subsecs. (d) and (e) and struck out former subsec. (d) which read as follows: "The decisions of the Board shall be in writing and shall contain findings of fact and conclusions of law separately stated." 1961-Subsec. (d). Pub. L. 87-97 added subsec. (d).

STATUTORY NOTES AND RELATED SUBSIDIARIES

EFFECTIVE DATE OF 2017 AMENDMENT Amendment by Pub. L. 115-55 applicable to all claims for which the Secretary of Veterans Affairs provides notice of a decision under section 5104 of this title on or after the later of 540 days after Aug. 23, 2017, or 30 days after the date on which the Secretary submits to Congress a certification of certain capabilities of the Department of Veterans Affairs to carry out the new appeals system established by Pub. L. 115-55 and to address appeals of decisions on legacy claims, with provision for early applicability of the new appeals system to certain claims, see section 2(x) of Pub. L. 115-55 set out as a note under section 101 of this title, and bracketed note thereunder.

EFFECTIVE DATE OF 1991 AMENDMENT Pub. L. 102-54, §14(g)(2), June 13, 1991, 105 Stat. 288, provided that the amendment made by that section is effective Nov. 18, 1988.

EFFECTIVE DATE OF 1988 AMENDMENT Amendment by sections 101(b) and 204 of Pub. L. 100-687 effective Sept. 1, 1989, and amendment by sections 203(a) and 205 of Pub. L. 100-687 effective Jan. 1, 1989, see section 401(a), (d) of Pub. L. 100-687 as amended, set out as an Effective Date note under section 7251 of this title.

EFFECTIVE DATE OF 1961 AMENDMENT Pub. L. 87-97, §2, July 20, 1961, 75 Stat. 215, provided that: "The amendment made by this Act [amending this section] shall take effect as of January 1, 1962."

RULE OF CONSTRUCTION Amendment by Pub. L. 117-168 not to be construed to apply section 5104(a) of this title to decisions of the Board of Veterans' Appeals under chapter 71 of this title, see section 807(b) of Pub. L. 117-168 set out as a note under section 5100 of this title.