-CITE-

    38 USC Sec. 7101                                            01/03/05

-EXPCITE-

    TITLE 38 - VETERANS' BENEFITS

    PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

    CHAPTER 71 - BOARD OF VETERANS' APPEALS

-HEAD-

    Sec. 7101. Composition of Board of Veterans' Appeals

-STATUTE-

      (a) There is in the Department a Board of Veterans' Appeals

    (hereinafter in this chapter referred to as the "Board"). The Board

    is under the administrative control and supervision of a chairman

    directly responsible to the Secretary. The Board shall consist of a

    Chairman, a Vice Chairman, and such number of members as may be

    found necessary in order to conduct hearings and dispose of appeals

    properly before the Board in a timely manner. The Board shall have

    such other professional, administrative, clerical, and stenographic

    personnel as are necessary in conducting hearings and considering

    and disposing of appeals properly before the Board. The Board shall

    have sufficient personnel under the preceding sentence to enable

    the Board to conduct hearings and consider and dispose of appeals

    properly before the Board in a timely manner.

      (b)(1) The Chairman shall be appointed by the President, by and

    with the advice and consent of the Senate, for a term of six years.

    The Chairman shall be subject to the same ethical and legal

    limitations and restrictions concerning involvement in political

    activities as apply to judges of the United States Court of Appeals

    for Veterans Claims.

      (2) The Chairman may be removed by the President for misconduct,

    inefficiency, neglect of duty, or engaging in the practice of law

    or for physical or mental disability which, in the opinion of the

    President, prevents the proper execution of the Chairman's duties.

    The Chairman may not be removed from office by the President on any

    other grounds. Any such removal may only be made after notice and

    opportunity for hearing.

      (3) The Chairman may be appointed under this subsection to more

    than one term. If, upon the expiration of the term of office for

    which the Chairman was appointed, the position of Chairman would

    become vacant, the individual serving as Chairman may, with the

    approval of the Secretary, continue to serve as Chairman until

    either appointed to another term or a successor is appointed, but

    not beyond the end of the Congress during which the term of office

    expired.

      (4) The Secretary shall designate one member of the Board as Vice

    Chairman. The Vice Chairman shall perform such functions as the

    Chairman may specify. Such member shall serve as Vice Chairman at

    the pleasure of the Secretary.

      (c)(1)(A) The Chairman may from time to time designate one or

    more employees of the Department to serve as acting members of the

    Board. Except as provided in subparagraph (B), any such designation

    shall be for a period not to exceed 90 days, as determined by the

    Chairman.

      (B) An individual designated as an acting member of the Board may

    continue to serve as an acting member of the Board in the making of

    any determination on a proceeding for which the individual was

    designated as an acting member of the Board, notwithstanding the

    termination of the period of designation of the individual as an

    acting member of the Board under subparagraph (A) or (C).

      (C) An individual may not serve as an acting member of the Board

    for more than 270 days during any one-year period.

      (D) At no time may the number of acting members exceed 20 percent

    of the total of the number of Board members and acting Board

    members combined.

      (2) In each annual report to the Congress under section 529 of

    this title, the Secretary shall provide detailed descriptions of

    the activities undertaken and plans made in the fiscal year for

    which the report is made with respect to the authority provided by

    paragraph (1) of this subsection. In each such report, the

    Secretary shall indicate, in terms of full-time employee

    equivalents, the number of acting members of the Board designated

    under such paragraph (1) during the year for which the report is

    made.

      (d)(1) After the end of each fiscal year, the Chairman shall

    prepare a report on the activities of the Board during that fiscal

    year and the projected activities of the Board for the fiscal year

    during which the report is prepared and the next fiscal year. Such

    report shall be included in the documents providing detailed

    information on the budget for the Department that the Secretary

    submits to the Congress in conjunction with the President's budget

    submission for any fiscal year pursuant to section 1105 of title

    31.

      (2) Each such report shall include, with respect to the preceding

    fiscal year, information specifying - 

        (A) the number of cases appealed to the Board during that year;

        (B) the number of cases pending before the Board at the

      beginning and at the end of that year;

        (C) the number of such cases which were filed during each of

      the 36 months preceding the current fiscal year;

        (D) the average length of time a case was before the Board

      between the time of the filing of an appeal and the disposition

      during the preceding fiscal year;

        (E) the number of members of the Board at the end of the year

      and the number of professional, administrative, clerical,

      stenographic, and other personnel employed by the Board at the

      end of the preceding fiscal year; and

        (F) the number of employees of the Department designated under

      subsection (c)(1) to serve as acting members of the Board during

      that year and the number of cases in which each such member

      participated during that year.

      (3) The projections in each such report for the current fiscal

    year and for the next fiscal year shall include (for each such

    year) - 

        (A) an estimate of the number of cases to be appealed to the

      Board; and

        (B) an evaluation of the ability of the Board (based on

      existing and projected personnel levels) to ensure timely

      disposition of such appeals as required by section 7101(a) of

      this title.

      (e) A performance incentive that is authorized by law for

    officers and employees of the Federal Government may be awarded to

    a member of the Board (including an acting member) by reason of

    that member's service on the Board only if the Chairman of the

    Board determines that such member should be awarded that incentive.

    A determination by the Chairman for such purpose shall be made

    taking into consideration the quality of performance of the Board

    member.

-SOURCE-

    (Pub. L. 85-857, Sept. 2, 1958, 72 Stat. 1240, Sec. 4001; Pub. L.

    98-223, title II, Sec. 208(a)-(c), Mar. 2, 1984, 98 Stat. 43, 44;

    Pub. L. 100-687, div. A, title II, Secs. 201(a), 202(b), 208, 209,

    Nov. 18, 1988, 102 Stat. 4109, 4110, 4112; renumbered Sec. 7101 and

    amended Pub. L. 102-40, title IV, Sec. 402(b)(1), (d)(1), May 7,

    1991, 105 Stat. 238, 239; Pub. L. 102-54, Sec. 14(e)(2), June 13,

    1991, 105 Stat. 287; Pub. L. 102-83, Secs. 2(c)(3), 4(a)(3), (4),

    (b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 402, 404, 405; Pub. L. 103-

    271, Secs. 2-5, July 1, 1994, 108 Stat. 740, 741; Pub. L. 103-446,

    title II, Secs. 201(d), 203, Nov. 2, 1994, 108 Stat. 4657; Pub. L.

    105-368, title V, Sec. 512(a)(1), Nov. 11, 1998, 112 Stat. 3341;

    Pub. L. 107-14, Sec. 8(a)(16), June 5, 2001, 115 Stat. 35.)

-MISC1-

                                AMENDMENTS                            

      2001 - Subsec. (a). Pub. L. 107-14 substituted "hereinafter" for

    "hereafter".

      1998 - Subsec. (b)(1). Pub. L. 105-368 substituted "Court of

    Appeals for Veterans Claims" for "Court of Veterans Appeals".

      1994 - Subsec. (a). Pub. L. 103-271, Sec. 2, struck out "(not

    more than 65)" after "such number".

      Subsec. (b). Pub. L. 103-446, Sec. 201(d)(1), (2), designated as

    par. (2) the text in par. (1) beginning "The Chairman may be

    removed" and struck out former par. (2) which read as follows:

      "(2)(A) The other members of the Board (including the Vice

    Chairman) shall be appointed by the Secretary, with the approval of

    the President, based upon recommendations of the Chairman. Each

    such member shall be appointed for a term of nine years.

      "(B) A member of the Board (other than the Chairman) may be

    removed by the Secretary upon the recommendation of the Chairman.

    In the case of a removal that would be covered by section 7521 of

    title 5 in the case of an administrative law judge, a removal of a

    member of the Board under this paragraph shall be carried out

    subject to the same requirements as apply to removal of an

    administrative law judge under that section. Section 554(a)(2) of

    title 5 shall not apply to a removal action under this

    subparagraph. In such a removal action, a member shall have the

    rights set out in section 7513(b) of such title."

      Subsec. (b)(1). Pub. L. 103-271, Sec. 3, inserted after first

    sentence "The Chairman shall be subject to the same ethical and

    legal limitations and restrictions concerning involvement in

    political activities as apply to judges of the United States Court

    of Veterans Appeals."

      Subsec. (b)(3). Pub. L. 103-446, Secs. 201(d)(3), 203,

    substituted "The Chairman" for "Members (including the Chairman)"

    and inserted at end "If, upon the expiration of the term of office

    for which the Chairman was appointed, the position of Chairman

    would become vacant, the individual serving as Chairman may, with

    the approval of the Secretary, continue to serve as Chairman until

    either appointed to another term or a successor is appointed, but

    not beyond the end of the Congress during which the term of office

    expired."

      Subsec. (c)(1). Pub. L. 103-271, Sec. 4(a)(1), added par. (1) and

    struck out former par. (1) which read as follows: "Subject to

    paragraph (2) of this subsection, the Chairman may from time to

    time designate employees of the Department to serve as temporary

    members of the Board. Any such designation shall be for a period of

    not to exceed one year, as determined by the Chairman. An

    individual may not serve as a temporary member of the Board for

    more than 24 months during any 48-month period."

      Subsec. (c)(2), (3). Pub. L. 103-271, Sec. 4(a)(2)-(4),

    redesignated par. (3) as (2), substituted "the number of acting

    members of the Board designated under such paragraph (1) during the

    year for which the report is made." for "the number of temporary

    Board members designated under this subsection and the number of

    acting Board members designated under section 7102(a)(2)(A)(ii) of

    this title during the year for which the report is made.", and

    struck out former par. (2) which read as follows: "Designation

    under paragraph (1) of this subsection of an individual as a

    temporary member of the Board may not be made when there are fewer

    than 65 members of the Board."

      Subsec. (d)(2)(F). Pub. L. 103-271, Sec. 5, added subpar. (F).

      Subsec. (d)(3)(B). Pub. L. 103-271, Sec. 4(b)(2), substituted

    "section 7101(a)" for "section 7103(d)".

      Subsec. (e). Pub. L. 103-271, Sec. 4(b)(1), substituted "an

    acting member" for "a temporary or acting member".

      1991 - Pub. L. 102-40, Sec. 402(b)(1), renumbered section 4001 of

    this title as this section.

      Subsec. (a). Pub. L. 102-83, Sec. 4(b)(1), (2)(E), substituted

    "Secretary" for "Administrator".

      Pub. L. 102-83, Sec. 4(a)(3), (4), substituted "Department" for

    "Veterans' Administration".

      Pub. L. 102-54 amended subsec. (a) as in effect immediately

    before the enactment of Pub. L. 102-40 by substituting "There is"

    for "There shall be" and ". The Board is under the administrative"

    for "under the administrative".

      Subsec. (b)(2), (4). Pub. L. 102-83, Sec. 4(b)(1), (2)(E),

    substituted "Secretary" for "Administrator" wherever appearing.

      Subsec. (c)(1). Pub. L. 102-83, Sec. 4(a)(3), (4), substituted

    "Department" for "Veterans' Administration".

      Subsec. (c)(3). Pub. L. 102-83, Sec. 4(b)(1), (2)(E), substituted

    "Secretary" for "Administrator" in two places.

      Pub. L. 102-83, Sec. 2(c)(3), substituted "section 529" for

    "section 214".

      Pub. L. 102-40, Sec. 402(d)(1), substituted "7102(a)(2)(A)(ii)"

    for "4002(a)(2)(A)(ii)".

      Subsec. (d)(1). Pub. L. 102-83, Sec. 4(b)(1), (2)(E), substituted

    "Secretary" for "Administrator".

      Pub. L. 102-83, Sec. 4(a)(3), (4), substituted "Department" for

    "Veterans' Administration".

      Subsec. (d)(3)(B). Pub. L. 102-40, Sec. 402(d)(1), substituted

    "7103(d)" for "4003(d)".

      1988 - Subsec. (a). Pub. L. 100-687, Sec. 202(b), inserted "and"

    after "Vice Chairman," substituted "necessary in order to conduct

    hearings and dispose of appeals properly before the Board in a

    timely manner. The Board shall have" for "necessary, and", and

    inserted provisions which required that Board have sufficient

    personnel to conduct hearings and consider and dispose of appeals.

      Subsec. (b). Pub. L. 100-687, Sec. 201(a), amended subsec. (b)

    generally. Prior to amendment, subsec. (b) read as follows:

    "Members of the Board (including the Chairman and Vice Chairman)

    shall be appointed by the Administrator with the approval of the

    President."

      Subsec. (d). Pub. L. 100-687, Sec. 208, added subsec. (d).

      Subsec. (e). Pub. L. 100-687, Sec. 209, added subsec. (e).

      1984 - Subsec. (a). Pub. L. 98-223, Sec. 208(a), (c), substituted

    "65" for "fifty" and struck out "associate" before "members".

      Subsec. (c). Pub. L. 98-223, Sec. 208(b), added subsec. (c).

                     EFFECTIVE DATE OF 1998 AMENDMENT                 

      Amendment by Pub. L. 105-368 effective on first day of first

    month beginning more than 90 days after Nov. 11, 1998, see section

    513 of Pub. L. 105-368, set out as a note under section 7251 of

    this title.

                     EFFECTIVE DATE OF 1988 AMENDMENT                 

      Amendment by section 201(a) of Pub. L. 100-687 effective Feb. 1,

    1989, amendment by section 202(b) of Pub. L. 100-687 effective Jan.

    1, 1989, and amendment by sections 208 and 209 of Pub. L. 100-687

    effective Nov. 18, 1988, see section 401(b)-(d) of Pub. L. 100-687,

    set out as an Effective Date note under section 7251 of this title.

                        BOARD OF VETERANS' APPEALS                    

      Section 201(c), (d) of Pub. L. 100-687 provided that:

      "(c) Transition to New Board. - (1) Appointments of members of

    the Board of Veterans' Appeals under subsection (b)(2) of section

    4001 [now 7101] of title 38, United States Code (as amended by

    subsection (a)), may not be made until a Chairman is appointed

    under subsection (b)(1) of that section.

      "(2) An individual who is serving as a member of the Board on the

    date of the enactment of this Act [Nov. 18, 1988] may continue to

    serve as a member until the earlier of - 

        "(A) the date on which the individual's successor (as

      designated by the Administrator) is appointed under subsection

      (b)(2) of that section, or

        "(B) the end of the 180-day period beginning on the day after

      the date on which the Chairman is appointed under subsection

      (b)(1) of such section.

      "(d) Initial Terms of Office. - Notwithstanding the second

    sentence of section 4001(b)(2) [now 7101(b)(2)] of title 38, United

    States Code (as amended by subsection (a)), specifying the term for

    which members of the Board of Veterans' Appeals shall be appointed,

    of the members first appointed under that section - 

        "(A) 22 shall be appointed for a term of three years;

        "(B) 22 shall be appointed for a term of six years; and

        "(C) 22 shall be appointed for a term of nine years,

    as determined by the Administrator [now Secretary] at the time of

    the initial appointments."