Filing of appeal

38 U.S.C. § 7105

• Title: 38 — Veterans' Benefits
• Chapter: 71 — BOARD OF VETERANS' APPEALS

Text

(a) Appellate review shall be initiated by the filing of a notice of disagreement in the form prescribed by the Secretary. Each appellant will be accorded hearing and representation rights pursuant to the provisions of this chapter and regulations of the Secretary.
(b)(1)(A) Except in the case of simultaneously contested claims, a notice of disagreement shall be filed within one year from the date of the issuance of notice of the decision of the agency of original jurisdiction pursuant to section 5104, 5104B, or 5108 of this title.
(B) A notice of disagreement postmarked before the expiration of the one-year period shall be accepted as timely filed.
(C) A question as to timeliness or adequacy of the notice of disagreement shall be decided by the Board.
(2)(A) Notices of disagreement shall be in writing, shall identify the specific determination with which the claimant disagrees, 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.
(B) Not more than one recognized organization, attorney, or agent may be recognized at any one time in the prosecution of a claim.
(C) Notices of disagreement shall be filed with the Board.
(3) The notice of disagreement shall indicate whether the claimant requests—
(A) a hearing before the Board, which shall include an opportunity to submit evidence in accordance with section 7113(b) of this title;
(B) an opportunity to submit additional evidence without a hearing before the Board, which shall include an opportunity to submit evidence in accordance with section 7113(c) of this title; or
(C) a review by the Board without a hearing or the submittal of additional evidence.
(4) The Secretary shall develop a policy to permit a claimant to modify the information identified in the notice of disagreement after the notice of disagreement has been filed under this section pursuant to such requirements as the Secretary may prescribe.
(c) If no notice of disagreement is filed in accordance with this chapter within the prescribed period, the action or decision of the agency of original jurisdiction shall become final and the claim shall not thereafter be readjudicated or allowed, except—
(1) in the case of a readjudication or allowance pursuant to a higher-level review that was requested in accordance with section 5104B of this title;
(2) as may otherwise be provided by section 5108 of this title; or
(3) as may otherwise be provided in such regulations as are consistent with this title.
(d) The Board may dismiss any appeal which fails to identify the specific determination with which the claimant disagrees.

History

(Added Pub. L. 87–666, §1, Sept. 19, 1962, 76 Stat. 553, §4005; amended Pub. L. 99–576, title VII, §701(85), Oct. 28, 1986, 100 Stat. 3298; Pub. L. 100–687, div. A, title II, §§203(b), 206, Nov. 18, 1988, 102 Stat. 4111; renumbered §7105 and amended Pub. L. 102–40, title IV, §402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 102–83, §4(b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 404, 405; Pub. L. 107–14, §8(a)(16), June 5, 2001, 115 Stat. 35; Pub. L. 112–154, title V, §501(a), Aug. 6, 2012, 126 Stat. 1190; Pub. L. 115–55, §2(q)(1), Aug. 23, 2017, 131 Stat. 1111; Pub. L. 117–168, title VIII, §807(a)(6), Aug. 10, 2022, 136 Stat. 1806.)

Editorial Notes

Editorial Notes

Amendments
2022—Subsec. (b)(1)(A). Pub. L. 117–168 substituted "issuance" for "mailing".
2017—Pub. L. 115–55, §2(q)(1)(F), struck out "notice of disagreement and" before "appeal" in section catchline.
Subsec. (a). Pub. L. 115–55, §2(q)(1)(A), substituted "Appellate review shall be initiated by the filing of a notice of disagreement in the form prescribed by the Secretary." for "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."
Subsec. (b). Pub. L. 115–55, §2(q)(1)(B), amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows:
"(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."
Subsec. (c). Pub. L. 115–55, §2(q)(1)(C), amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows: "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."
Subsec. (d). Pub. L. 115–55, §2(q)(1)(D), added subsec. (d) and struck out former subsec. (d) which related to development and review actions, statement of the case, and dismissal of appeal.
Subsec. (e). Pub. L. 115–55, §2(q)(1)(E), struck out subsec. (e) which read as follows:
"(1) If, either at the time or after the agency of original jurisdiction receives a substantive appeal, the claimant or the claimant's representative, if any, submits evidence to either the agency of original jurisdiction or the Board of Veterans' Appeals for consideration in connection with the issue or issues with which disagreement has been expressed, such evidence shall be subject to initial review by the Board unless the claimant or the claimant's representative, as the case may be, requests in writing that the agency of original jurisdiction initially review such evidence.
"(2) A request for review of evidence under paragraph (1) shall accompany the submittal of the evidence."
2012—Subsec. (e). Pub. L. 112–154 added subsec. (e).
2001—Subsec. (b)(1). Pub. L. 107–14 substituted "hereinafter" for "hereafter".
1991—Pub. L. 102–40, §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, §402(d)(1), substituted "5701" for "3301".
1988—Subsec. (d)(1). Pub. L. 100–687, §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, §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, §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, §701(85), substituted "the claimant's" for "his" and "the claimant or legal guardian" for "him".
Subsec. (d)(1), (3). Pub. L. 99–576, §701(85)(A), substituted "the claimant's" for "his".

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 2012 Amendment
Pub. L. 112–154, title V, §501(b), Aug. 6, 2012, 126 Stat. 1190, provided that: "Subsection (e) of such section [38 U.S.C. 7105(e)], as added by subsection (a), shall take effect on the date that is 180 days after the date of the enactment of this Act [Aug. 6, 2012], and shall apply with respect to claims for which a substantive appeal is filed on or after the date that is 180 days after the date of the enactment of this Act."

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
Pub. L. 87–666, §3, Sept. 19, 1962, 76 Stat. 554, 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."

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.