--- kind: "range" citation: "38 C.F.R. §§ 19.26–19.38" title: "38" from: "19.26" to: "19.38" count: 13 url: "https://uscodex.org/cfr/38/19.26..19.38" --- # §19.26. Action by agency of original jurisdiction on Notice of Disagreement. - (a) **Initial action.** When a timely Notice of Disagreement (NOD) is filed, the agency of original jurisdiction (AOJ) must reexamine the claim and determine whether additional review or development is warranted. - (b) **Unclear communication or disagreement.** If within one year after mailing an adverse decision (or 60 days for simultaneously contested claims), the AOJ receives a written communication expressing dissatisfaction or disagreement with the adverse decision, but the AOJ cannot clearly identify that communication as expressing an intent to appeal, or the AOJ cannot identify which denied claim(s) the claimant wants to appeal, then the AOJ will contact the claimant to request clarification of the claimant's intent. This contact may be either oral or written. - (1) For oral contacts, VA will contact whoever filed the communication. VA will make a written record of any oral clarification request conveyed to the claimant including the date of the adverse decision involved and the response. In any request for clarification, the AOJ will explain that if a response to this request is not received within the time period described in [paragraph (c)](#c) of this section, the earlier, unclear communication will not be considered an NOD as to any adverse decision for which clarification was requested. - (2) For written contacts, VA will mail a letter requesting clarification to the claimant and send a copy to his or her representative and fiduciary, if any. - (c) **Response required from claimant—** - (1) **Time to respond.** The claimant must respond to the AOJ's request for clarification within the later of the following dates: - (i) 60 days after the date of the AOJ's clarification request; or - (ii) One year after the date of mailing of notice of the adverse decision being appealed (60 days for simultaneously contested claims). - (2) **Failure to respond.** If the claimant fails to provide a timely response, the previous communication from the claimant will not be considered an NOD as to any claim for which clarification was requested. The AOJ will not consider the claimant to have appealed the decision(s) on any claim(s) as to which clarification was requested and not received. - (d) **Action following clarification.** When clarification of the claimant's intent to file an NOD is obtained, the AOJ will reexamine the claim and determine whether additional review or development is warranted. If no further review or development is required, or after necessary review or development is completed, the AOJ will prepare a Statement of the Case pursuant to [§ 19.29](/cfr/38/19.29.md) unless the disagreement is resolved by a grant of the benefit(s) sought on appeal or the NOD is withdrawn by the claimant. - (e) **Representatives and fiduciaries.** For the purpose of the requirements in [paragraphs (b) through (d)](#b..d) of this section, references to the “claimant” include reference to the claimant or his or her representative, if any, or to his or her fiduciary, if any, as appropriate. # §19.27. Reserved # §19.28. Determination that a Notice of Disagreement is inadequate protested by claimant or representative. Whether a Notice of Disagreement is adequate is an appealable issue. If the claimant or his or her representative protests an adverse determination made by the agency of original jurisdiction with respect to the adequacy of a Notice of Disagreement, the claimant will be furnished a Statement of the Case. # §19.29. Statement of the Case. The Statement of the Case must be complete enough to allow the appellant to present written and/or oral arguments before the Board of Veterans' Appeals. It must contain: - (a) A summary of the evidence in the case relating to the issue or issues with which the appellant or representative has expressed disagreement; - (b) A summary of the applicable laws and regulations, with appropriate citations, and a discussion of how such laws and regulations affect the determination; and - (c) The determination of the agency of original jurisdiction on each issue and the reasons for each such determination with respect to which disagreement has been expressed. # §19.30. Furnishing the Statement of the Case and instructions for filing a Substantive Appeal. - (a) **To whom the Statement of the Case is furnished.** The Statement of the Case will be forwarded to the appellant at the latest address of record and a separate copy provided to his or her representative (if any). - (b) **Information furnished with the Statement of the Case.** With the Statement of the Case, the appellant and the representative will be furnished information on the right to file, and time limit for filing, a substantive appeal; information on hearing and representation rights; a VA Form 9, “Appeal to Board of Veterans' Appeals”; and a statement describing the available review options if the appellant elects review of the issue or issues on appeal in the modernized review system. # §19.31. Supplemental statement of the case. - (a) **Purpose and limitations.** A “Supplemental Statement of the Case,” so identified, is a document prepared by the agency of original jurisdiction to inform the appellant of any material changes in, or additions to, the information included in the Statement of the Case or any prior Supplemental Statement of the Case. The information furnished with the Supplemental Statement of the Case shall include a statement describing the available review options if the appellant elects review of the issue or issues on appeal in the modernized system. In no case will a Supplemental Statement of the Case be used to announce decisions by the agency of original jurisdiction on issues not previously addressed in the Statement of the Case, or to respond to a notice of disagreement on newly appealed issues that were not addressed in the Statement of the Case. The agency of original jurisdiction will respond to notices of disagreement on newly appealed issues not addressed in the Statement of the Case using the procedures in §§ [19.29](/cfr/38/19.29.md) and [19.30](/cfr/38/19.30.md) of this part (relating to statements of the case). - (b) **When furnished.** The agency of original jurisdiction will furnish the appellant and his or her representative, if any, a Supplemental Statement of the Case if: - (1) The agency of original jurisdiction receives additional pertinent evidence after a Statement of the Case or the most recent Supplemental Statement of the Case has been issued and before the appeal is certified to the Board of Veterans' Appeals and the appellate record is transferred to the Board; - (2) A material defect in the Statement of the Case or a prior Supplemental statement of the Case is discovered; or - (3) For any other reason the Statement of the Case or a prior Supplemental Statement of the Case is inadequate. - (c) **Pursuant to remand from the Board.** The agency of original jurisdiction will issue a Supplemental Statement of the Case if, pursuant to a remand by the Board, it develops the evidence or cures a procedural defect, unless: - (1) The only purpose of the remand is to assemble records previously considered by the agency of original jurisdiction and properly discussed in a prior Statement of the Case or Supplemental Statement of the Case; or - (2) **The Board specifies in the remand that a Supplemental Statement of the Case is not required.** - (d) **Exception.** [Paragraph (b)(1)](#b-1) of this section does not apply in proceedings before the General Counsel conducted under [part 14](/cfr/38/part14.md) of this chapter to cancel accreditation or to review fee agreements and expenses for reasonableness. # §19.32. Closing of appeal for failure to respond to Statement of the Case. The agency of original jurisdiction may close the appeal without notice to an appellant or his or her representative for failure to respond to a Statement of the Case within the period allowed. However, if a Substantive Appeal is subsequently received within the 1-year appeal period (60-day appeal period for simultaneously contested claims), the appeal will be considered to be reactivated. # §19.33. Reserved # §19.34. Determination that Notice of Disagreement or Substantive Appeal was not timely filed protested by claimant or representative. Whether a Notice of Disagreement or Substantive Appeal has been filed on time is an appealable issue. If the claimant or his or her representative protests an adverse determination made by the agency of original jurisdiction with respect to timely filing of the Notice of Disagreement or Substantive Appeal, the claimant will be furnished a Statement of the Case. # §19.35. Certification of appeals. Following receipt of a timely Substantive Appeal, the agency of original jurisdiction will certify the case to the Board of Veterans' Appeals. The certification is used for administrative purposes and does not serve to either confer or deprive the Board of Veterans' Appeals of jurisdiction over an issue. # §19.36. Notification of certification of appeal and transfer of appellate record. When an appeal is certified to the Board of Veterans' Appeals for appellate review and the appellate record is transferred to the Board, the appellant and his or her representative, if any, will be notified in writing of the certification and transfer and of the time limit for requesting a change in representation, for requesting a personal hearing, and for submitting additional evidence described in [Rule 1305](/cfr/38/1305.md) ([§ 20.1305](/cfr/38/20.1305.md) of this chapter). Provisions in this section for submitting additional evidence and references to [§ 20.1305](/cfr/38/20.1305.md) do not apply in proceedings before the General Counsel conducted under [part 14](/cfr/38/part14.md) of this chapter to suspend or cancel accreditation or to review fee agreements and expenses for reasonableness. # §19.37. Consideration of additional evidence received by the agency of original jurisdiction after an appeal has been initiated. - (a) **Evidence received prior to transfer of records to Board of Veterans' Appeals.** Evidence received by the agency of original jurisdiction prior to transfer of the records to the Board of Veterans' Appeals after an appeal has been initiated (including evidence received after certification has been completed) will be referred to the appropriate rating or authorization activity for review and disposition. If the Statement of the Case and any prior Supplemental Statements of the Case were prepared before the receipt of the additional evidence, a Supplemental Statement of the Case will be furnished to the appellant and his or her representative as provided in [§ 19.31](/cfr/38/19.31.md) of this part, unless the additional evidence received duplicates evidence previously of record which was discussed in the Statement of the Case or a prior Supplemental Statement of the Case or the additional evidence is not relevant to the issue, or issues, on appeal. - (b) **Evidence received after transfer of records to the Board of Veterans' Appeals.** Additional evidence received by the agency of original jurisdiction after the records have been transferred to the Board of Veterans' Appeals for appellate consideration will be forwarded to the Board if it has a bearing on the appellate issue or issues. The Board will then determine what action is required with respect to the additional evidence. - (c) The provisions of this section do not apply in proceedings before the General Counsel conducted under [part 14](/cfr/38/part14.md) of this chapter to cancel accreditation or to review fee agreements and expenses for reasonableness. # §19.38. Action by agency of original jurisdiction when remand received. When a case is remanded by the Board of Veterans' Appeals, the agency of original jurisdiction will complete the additional development of the evidence or procedural development required. Following completion of the development, the case will be reviewed to determine whether the additional development, together with the evidence which was previously of record, supports the allowance of all benefits sought on appeal. If so, the appellant and his or her representative, if any, will be promptly informed. If any benefits sought on appeal remain denied following this review, the agency of original jurisdiction will issue a Supplemental Statement of the Case concerning the additional development pertaining to those issues in accordance with the provisions of [§ 19.31](/cfr/38/19.31.md) of this part. Following the 30-day period allowed for a response to the Supplemental Statement of the Case pursuant to [§ 19.52(c)](/cfr/38/19.52.md?p=c), the case will be returned to the Board for further appellate processing unless the appeal is withdrawn or review of the response to the Supplemental Statement of the Case results in the allowance of all benefits sought on appeal. Remanded cases will not be closed for failure to respond to the Supplemental Statement of the Case.