-CITE-

    38 USC Sec. 7105                                            01/19/04

-EXPCITE-

    TITLE 38 - VETERANS' BENEFITS

    PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

    CHAPTER 71 - BOARD OF VETERANS' APPEALS

-HEAD-

    Sec. 7105. Filing of Notice of Disagreement and Appeal

-STATUTE-

      (a) Appellate review will be initiated by a notice of

    disagreement and completed by a substantive appeal after a

    statement of the case is furnished as prescribed in this section.

    Each appellant will be accorded hearing and representation rights

    pursuant to the provisions of this chapter and regulations of the

    Secretary.

      (b)(1) Except in the case of simultaneously contested claims,

    notice of disagreement shall be filed within one year from the date

    of mailing of notice of the result of initial review or

    determination. Such notice, and appeals, must be in writing and be

    filed with the activity which entered the determination with which

    disagreement is expressed (hereinafter referred to as the "agency

    of original jurisdiction"). A notice of disagreement postmarked

    before the expiration of the one-year period will be accepted as

    timely filed.

      (2) Notices of disagreement, and appeals, must be in writing and

    may be filed by the claimant, the claimant's legal guardian, or

    such accredited representative, attorney, or authorized agent as

    may be selected by the claimant or legal guardian. Not more than

    one recognized organization, attorney, or agent will be recognized

    at any one time in the prosecution of a claim.

      (c) If no notice of disagreement is filed in accordance with this

    chapter within the prescribed period, the action or determination

    shall become final and the claim will not thereafter be reopened or

    allowed, except as may otherwise be provided by regulations not

    inconsistent with this title.

      (d)(1) Where the claimant, or the claimant's representative,

    within the time specified in this chapter, files a notice of

    disagreement with the decision of the agency of original

    jurisdiction, such agency will take such development or review

    action as it deems proper under the provisions of regulations not

    inconsistent with this title. If such action does not resolve the

    disagreement either by granting the benefit sought or through

    withdrawal of the notice of disagreement, such agency shall prepare

    a statement of the case. A statement of the case shall include the

    following:

        (A) A summary of the evidence in the case pertinent to the

      issue or issues with which disagreement has been expressed.

        (B) A citation to pertinent laws and regulations and a

      discussion of how such laws and regulations affect the agency's

      decision.

        (C) The decision on each issue and a summary of the reasons for

      such decision.

      (2) A statement of the case, as required by this subsection, will

    not disclose matters that would be contrary to section 5701 of this

    title or otherwise contrary to the public interest. Such matters

    may be disclosed to a designated representative unless the

    relationship between the claimant and the representative is such

    that disclosure to the representative would be as harmful as if

    made to the claimant.

      (3) Copies of the "statement of the case" prescribed in paragraph

    (1) of this subsection will be submitted to the claimant and to the

    claimant's representative, if there is one. The claimant will be

    afforded a period of sixty days from the date the statement of the

    case is mailed to file the formal appeal. This may be extended for

    a reasonable period on request for good cause shown. The appeal

    should set out specific allegations of error of fact or law, such

    allegations related to specific items in the statement of the case.

    The benefits sought on appeal must be clearly identified. The

    agency of original jurisdiction may close the case for failure to

    respond after receipt of the statement of the case, but questions

    as to timeliness or adequacy of response shall be determined by the

    Board of Veterans' Appeals.

      (4) The claimant in any case may not be presumed to agree with

    any statement of fact contained in the statement of the case to

    which the claimant does not specifically express agreement.

      (5) The Board of Veterans' Appeals may dismiss any appeal which

    fails to allege specific error of fact or law in the determination

    being appealed.

-SOURCE-

    (Added Pub. L. 87-666, Sec. 1, Sept. 19, 1962, 76 Stat. 553, Sec.

    4005; amended Pub. L. 99-576, title VII, Sec. 701(85), Oct. 28,

    1986, 100 Stat. 3298; Pub. L. 100-687, div. A, title II, Secs.

    203(b), 206, Nov. 18, 1988, 102 Stat. 4111; renumbered Sec. 7105

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

    7, 1991, 105 Stat. 238, 239; Pub. L. 102-83, Sec. 4(b)(1), (2)(E),

    Aug. 6, 1991, 105 Stat. 404, 405; Pub. L. 107-14, Sec. 8(a)(16),

    June 5, 2001, 115 Stat. 35.)

-MISC1-

                                AMENDMENTS                            

      2001 - Subsec. (b)(1). Pub. L. 107-14 substituted "hereinafter"

    for "hereafter".

      1991 - Pub. L. 102-40, Sec. 402(b)(1), renumbered section 4005 of

    this title as this section.

      Subsec. (a). Pub. L. 102-83 substituted "Secretary" for

    "Administrator".

      Subsec. (d)(2). Pub. L. 102-40, Sec. 402(d)(1), substituted

    "5701" for "3301".

      1988 - Subsec. (d)(1). Pub. L. 100-687, Sec. 206(a), substituted

    "shall prepare a statement of the case. A statement of the case

    shall include the following:" for "will prepare a statement of the

    case consisting of - ", added subpars. (A) to (C), and struck out

    former subpars. (A) to (C) which read as follows:

      "(A) A summary of the evidence in the case pertinent to the issue

    or issues with which disagreement has been expressed;

      "(B) A citation or discussion of the pertinent law, regulations,

    and, where applicable, the provisions of the Schedule for Rating

    Disabilities;

      "(C) The decision on such issue or issues and a summary of the

    reasons therefor."

      Subsec. (d)(4). Pub. L. 100-687, Sec. 206(b), amended par. (4)

    generally. Prior to amendment, par. (4) read as follows: "The

    appellant will be presumed to be in agreement with any statement of

    fact contained in the statement of the case to which no exception

    is taken."

      Subsec. (d)(5). Pub. L. 100-687, Sec. 203(b), struck out "will

    base its decision on the entire record and" after "of Veterans'

    Appeals".

      1986 - Subsec. (b)(2). Pub. L. 99-576, Sec. 701(85), substituted

    "the claimant's" for "his" and "the claimant or legal guardian" for

    "him".

      Subsec. (d)(1), (3). Pub. L. 99-576, Sec. 701(85)(A), substituted

    "the claimant's" for "his".

                     EFFECTIVE DATE OF 1988 AMENDMENT                 

      Amendment by Pub. L. 100-687 effective Jan. 1, 1989, see section

    401(d) of Pub. L. 100-687 set out as an Effective Date note under

    section 7251 of this title.

                              EFFECTIVE DATE                          

      Section 3 of Pub. L. 87-666 provided that: "The amendments made

    by this Act [enacting sections 4005, 4005A, and 4006 [now 7105,

    7105A, and 7106] of this title, redesignating former section 4006

    as 4007 [now 7107] of this title, and repealing former sections

    4005 and 4007 of this title] shall be effective January 1, 1963."

-SECREF-

                   SECTION REFERRED TO IN OTHER SECTIONS               

      This section is referred to in sections 7105A, 7106 of this

    title.