HomeVeterans Guide to VA BenefitsVA Benefits- Legal Bases for BenefitsDue Process

2.3. Due Process

The entire thrust of the VA's nonadversarial claims system is predicated upon a structure which provides for notice and an opportunity to be heard at virtually every step in the process.  The Secretary shall provide notice of a decision regarding a claim for benefits and "an explanation of the procedure for obtaining review of that decision."  38 U.S.C. § 5104(a); see Rosler v. Derwinski, 1 Vet. App. 241, 249 (1991).  "Each appellant will be accorded hearing and representation rights pursuant to the provisions of [38 U.S.C. Chapter 71] and regulations of the Secretary."  38 U.S.C. § 7105(a).  The VA regional office (RO) must provide notice of the right to appeal in regular and in simultaneously contested claims.  38 C.F.R. §§ 19.25, 19.100. 

In simultaneously contested claims, the VARO must provide notice of appeal to other contesting parties.  38 C.F.R. § 19.102.  It must provide notification of the filing of an administrative appeal.  38 C.F.R. § 19.52.  It must furnish a Statement of the Case (SOC) to a claimant, 38 C.F.R. § 19.30, which "must be complete enough to allow ... appellant to present written and/or oral arguments before the [BVA]."  38 C.F.R. § 19.29.  In simultaneously contested claims, each interested party must be furnished with an SOC.  38 U.S.C. § 7105A; 38 C.F.R. § 19.101.  

A Supplemental SOC (a "SSOC") is required when an appellant submits additional evidence to the VARO prior to the transfer of appellant's records to the BVA, 38 C.F.R. § 19.37(a), and when a BVA remand of a case to the VARO results in additional evidentiary or procedural development and continuation of the denial of benefits, 38 C.F.R. § 19.38; see generally 38 C.F.R. § 19.31 ("a period of 60 days ... will be allowed for response"); 38 C.F.R. § 20.302(c) (but only 30 days, in the case of a simultaneously contested claim, 38 C.F.R. § 20.501(c)).

If the BVA questions the adequacy of appellant's substantive appeal, appellant is provided "notice ... and a period of 60 days ... to present written argument or to request a hearing to present oral argument."  38 C.F.R. § 20.203.  The Board shall decide an appeal "only after affording the claimant an opportunity for a hearing."  38 U.S.C. § 7104(a).  In connection with the right to a hearing, a claimant has the right to present evidence, testimony, and argument in support of a claim.  38 C.F.R. § 20.700.

A claimant has the right to notification of the time and place of the hearing on appeal.  38 C.F.R. § 20.702(b).  A claimant has the right to notification of the certification of appeal and transfer of the appellate record to the BVA.  38 C.F.R. § 19.36.  If a "Travel Board" hearing is held, a claimant must be notified of its time and place.  38 C.F.R. § 19.76.  When a "Travel Board" hearing is requested, a claimant must be furnished with an SOC if not previously furnished.  38 C.F.R. § 19.77.  

"After reaching a decision in a case, the Board shall promptly mail a copy of its written decision to the claimant."  38 U.S.C. § 7104(e).  A claimant is entitled to a hearing if a motion for reconsideration of a final BVA decision is granted.  38 C.F.R. § 20.1003.  The BVA may vacate an appellate decision which denies "due process of law" upon the request of appellant, or on the BVA's own motion.  38 C.F.R. § 20.904.  Thurber v. Brown, 5 Vet. App. 119, 123-24 (1993).

As written, the due process provisions of 38 C.F.R. section 3.103 apply only to benefits and relief under part 3 of title 38 of the Code of Federal Regulations.  Part 3 is entitled "ADJUDICATION," and is divided into two subparts: subpart A, which deals with compensation, pension, and DIC, and subpart B, which deals with burial benefits.  As written, section 3.103(b)(2) requires pre-termination/reduction notice only where there is a termination or reduction of an "award of compensation, pension or [DIC]."  Grovhoug v. Brown, 7 Vet. App. 209, 214 (1994).

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