United States Code

CHAPTER 59-AGENTS AND ATTORNEYS

§ 5902. Recognition of representatives of organizations

[See main edition for text of (a) and (b)]

(c)(1) Unless a claimant specifically indicates in a power of attorney filed with the Department a desire to appoint only a recognized representative of an organization listed in or approved under subsection (a), the Secretary may, for any purpose, treat the power of attorney naming such an organization, a specific office of such an organization, or a recognized representative of such an organization as the claimant's representative as an appointment of the entire organization as the claimant's representative.

(2) Whenever the Secretary is required or permitted to notify a claimant's representative, and the claimant has named in a power of attorney an organization listed in or approved under subsection (a), a specific office of such an organization, or a recognized representative of such an organization without specifically indicating a desire to appoint only a recognized representative of the organization, the Secretary shall notify the organization at the address designated by the organization for the purpose of receiving the notification concerned.

(d) Service rendered in connection with any such claim, while not on active duty, by any retired officer, warrant officer, or enlisted member of the Armed Forces recognized under this section shall not be a violation of sections 203, 205, 206, or 207 of title 18.

(As amended Pub. L. 104-275, title V, §508(a), Oct. 9, 1996, 110 Stat. 3343.)

AMENDMENTS

1996 Subsecs. (c), (d). Pub. L. 104-275 added subsec. (c) and redesignated former subsec. (c) as (d).

EFFECTIVE DATE OF 1996 AMENDMENT

Section 508(b) of Pub. L. 104–275 provided that: "The amendments made by this section [amending this section] apply to any power of attorney filed with the Department of Veterans Affairs, regardless of the date of its execution."

§ 5904. Recognition of agents and attorneys generally

[See main edition for text of (a) and (b)]

(2) A person who, acting as agent or attorney in a case referred to in paragraph (1) of this subsection, represents a person before the Department or the Board of Veterans' Appeals after the Board first makes a final decision in the case shall file a copy of any fee agreement between them with the Board at such time as may be specified by the Board. The Board, upon its own motion or the request of either party, may review such a fee agreement and may order a reduction in the fee called for in the agreement if the Board finds that the fee is excessive or unreasonable. A finding or order of the Board under the preceding sentence may be reviewed by the United States Court of Appeals for Veterans Claims under section 7263(d) of this title.

[See main edition for text of (3)]

(d) [See main edition for text of (1) and (2)] (3) To the extent that past-due benefits are awarded in any proceeding before the Secretary, the Board of Veterans' Appeals, or the United States Court of Appeals for Veterans Claims, the Secretary may direct that payment of any attorneys' fee under a fee arrangement described in paragraph (1) of this subsection be made out of such past-due benefits. In no event may the Secretary withhold for the purpose of such payment any portion of benefits payable for a period after the date of the final decision of the Secretary, the Board of Veterans' Appeals, or Court of Appeals for Veterans Claims making (or ordering the making of) the award.

(As amended Pub. L. 105-368, title V, § 512(a)(1), Nov. 11, 1998, 112 Stat. 3341.)

$7101. Composition of Board of Veterans' Appeals

[See main edition for text of (a)]

(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.

[See main edition for text of (2) to (4); (c) to (e)] (As amended Pub. L. 105-368, title V, § 512(a)(1), Nov. 11, 1998, 112 Stat. 3341.)

AMENDMENTS

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

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.

§7101A. Members of Board: appointment; pay; performance review

(a)(1) The members of the Board of Veterans' Appeals other than the Chairman (and including the Vice Chairman) shall be appointed by the Secretary, with the approval of the President, based upon recommendations of the Chairman. (2) Each member of the Board shall be a member in good standing of the bar of a State.

[See main edition for text of (b) and (c)]

(d) [See main edition for text of (1)] (2)(A) Upon removal from the Board under paragraph (1) of a member of the Board who before appointment to the Board served as an attorney in the civil service, the Secretary shall appoint that member to an attorney position at the Board, if the removed member so requests. If the removed member served in an attorney position at the Board immediately before appointment to the Board, appointment to an attorney position under this paragraph shall be in the grade and step held by the removed member immediately before such appointment to the Board.

(B) The Secretary is not required to make an appointment to an attorney position under this paragraph if the Secretary determines that the member of the Board removed under paragraph (1) is not qualified for the position.

[See main edition for text of (e) to (g)]

(As amended Pub. L. 105-368, title X, §1002, Nov. 11, 1998, 112 Stat. 3363.)

AMENDMENTS

1998 Subsec. (a). Pub. L. 105-368, §1002(a), designated existing provisions as par. (1) and added par. (2).

Subsec. (d)(2). Pub. L. 105–368, §1002(b), amended par. (2) generally. Prior to amendment, par. (2) read as follows: "Upon removal from the Board under paragraph (1), a member of the Board (other than the Chairman) who was a career or career-conditional employee in the civil service before commencement of service as a member of the Board shall revert to the civil service grade and series held by the member immediately before the appointment of the member to the Board." § 7104. Jurisdiction of the Board

[See main edition for text of (a) to (d)] (e)(1) After reaching a decision on a case, the Board shall promptly mail a copy of its written decision to the claimant at the last known address of the claimant.

(2) If the claimant has an authorized representative, the Board shall

(A) mail a copy of its written decision to the authorized representative at the last known address of the authorized representative; or

(B) send a copy of its written decision to the authorized representative by any means reasonably likely to provide the authorized representative with a copy of the decision within the same time a copy would be expected to

reach the authorized representative if sent by first-class mail.

(As amended Pub. L. 104-275, title V, § 509, Oct. 9, 1996, 110 Stat. 3344.)

AMENDMENTS

1996 Subsec. (e). Pub. L. 104-275 amended subsec. (e) generally. Prior to amendment, subsec. (e) read as follows: "After reaching a decision in a case, the Board shall promptly mail a copy of its written decision to the claimant and the claimant's authorized representative (if any) at the last known address of the claimant and at the last known address of such representative (if any)."

§ 7107. Appeals: dockets; hearings

(a)(1) Except as provided in paragraphs (2) and (3) and in subsection (f), each case received pursuant to application for review on appeal shall be considered and decided in regular order according to its place upon the docket.

(2) A case referred to in paragraph (1) may, for cause shown, be advanced on motion for earlier consideration and determination. Any such motion shall set forth succinctly the grounds upon which the motion is based. Such a motion may be granted only

(A) if the case involves interpretation of law of general application affecting other claims; (B) if the appellant is seriously ill or is under severe financial hardship; or

(C) for other sufficient cause shown. (3) A case referred to in paragraph (1) may be postponed for later consideration and determination if such postponement is necessary to afford the appellant a hearing.

[See main edition for text of (b) and (c)]

(d) [See main edition for text of (1)]

(2) A hearing to be held within an area served by a regional office of the Department shall (except as provided in paragraph (3)) be scheduled to be held in accordance with the place of the case on the docket under subsection (a) relative to other cases on the docket for which hearings are scheduled to be held within that area.

(3) A hearing to be held within an area served by a regional office of the Department may, for cause shown, be advanced on motion for an earlier hearing. Any such motion shall set forth succinctly the grounds upon which the motion is based. Such a motion may be granted only

(A) if the case involves interpretation of law of general application affecting other claims; (B) if the appellant is seriously ill or is under severe financial hardship; or (C) for other sufficient cause shown.

[See main edition for text of (e) and (f)] (As amended Pub. L. 105-368, title X, §1003, Nov. 11, 1998, 112 Stat. 3363.)

AMENDMENTS

1998 Subsec. (a)(1). Pub. L. 105-368, §1003(a)(1), inserted "in paragraphs (2) and (3) and" after "Except as provided".

Subsec. (a)(2). Pub. L. 105–368, §1003(a)(2), added second and third sentences and struck out former second sentence which read as follows: "Any such motion shall set forth succinctly the grounds upon which it is based and may not be granted unless the case involves inter

pretation of law of general application affecting other claims or for other sufficient cause shown."

Subsec. (a)(3). Pub. L. 105-368, §1003(a)(3), added par. (3).

Subsec. (d)(2). Pub. L. 105-368, §1003(b)(1), substituted "in accordance with the place of the case on the docket under subsection (a) relative to other cases on the docket for which hearings are scheduled to be held within that area." for "in the order in which requests for hearings within that area are received by the Department.'

Subsec. (d)(3). Pub. L. 105–368, §1003(b)(2), added par. (3) and struck out former par. (3) which read as follows: "In a case in which the Secretary is aware that the appellant is seriously ill or is under severe financial hardship, a hearing may be scheduled at a time earlier than would be provided for under paragraph (2).”

§ 7111. Revision of decisions on grounds of clear and unmistakable error

(a) A decision by the Board is subject to revision on the grounds of clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised.

(b) For the purposes of authorizing benefits, a rating or other adjudicative decision of the Board that constitutes a reversal or revision of a prior decision of the Board on the grounds of clear and unmistakable error has the same effect as if the decision had been made on the date of the prior decision.

(c) Review to determine whether clear and unmistakable error exists in a case may be instituted by the Board on the Board's own motion or upon request of the claimant.

(d) A request for revision of a decision of the Board based on clear and unmistakable error may be made at any time after that decision is made.

(e) Such a request shall be submitted directly to the Board and shall be decided by the Board on the merits, without referral to any adjudicative or hearing official acting on behalf of the Secretary.

(f) A claim filed with the Secretary that requests reversal or revision of a previous Board decision due to clear and unmistakable error shall be considered to be a request to the Board under this section, and the Secretary shall promptly transmit any such request to the Board for its consideration under this section. (Added Pub. L. 105-111, §1(b)(1), Nov. 21, 1997, 111 Stat. 2271.)

SUBCHAPTER V-RETIREMENT AND SURVIVORS ANNUITIES

Sec.

7298. 7299.

Retirement Fund.

Limitation on activities of retired judges.
AMENDMENTS

1999-Pub. L. 106-117, title X, §§ 1021(b), 1024(b), Nov. 30, 1999, 113 Stat. 1592, 1594, added items 7257 and 7299. 1998-Pub. L. 105-368, title V. §512(a)(3), (4)(A), Nov. 11, 1998, 112 Stat. 3341, substituted "APPEALS FOR VETERANS CLAIMS" for "VETERANS APPEALS" in chapter heading, struck out "of Veterans Appeals" after "Court" in item 7286, substituted "Court decision" for "United States Court of Veterans Appeals decision" in item 7291, and struck out "Court of Veterans Appeals" before "Retirement Fund" in item 7298. SUBCHAPTER I-ORGANIZATION AND

§ 7251. Status

JURISDICTION

There is hereby established, under Article I of the Constitution of the United States, a court of record to be known as the United States Court of Appeals for Veterans Claims.

(As amended Pub. L. 105-368, title V, §511(b), Nov. 11, 1998, 112 Stat. 3341.)

AMENDMENTS

1998 Pub. L. 105-368 substituted "Court of Appeals for Veterans Claims" for "Court of Veterans Appeals".

CHANGE OF NAME

Pub. L. 105-368, title V, §511(a), Nov. 11, 1998, 112 Stat. 3341, provided that: "The United States Court of Veterans Appeals is hereby renamed as, and shall hereafter be known and designated as, the United States Court of Appeals for Veterans Claims."

Pub. L. 105-368, title V, § 512(c), Nov. 11, 1998, 112 Stat. 3342, provided that: “Any reference in a law, regulation, document, paper, or other record of the United States to the United States Court of Veterans Appeals shall be deemed to be a reference to the United States Court of Appeals for Veterans Claims."

EFFECTIVE DATE OF 1998 AMENDMENT

Pub. L. 105-368, title V, §513, Nov. 11, 1998, 112 Stat. 3342, provided that: "This subtitle [subtitle B (§§ 511-513) of title V of Pub. L. 105-368, see Tables for classification], and the amendments made by this subtitle, shall take effect on the first day of the first month beginning more than 90 days after the date of the enactment of this Act (Nov. 11, 1998]."

CHAPTER APPLICABLE TO CLAIMS ALLEGING PREVIOUS DETERMINATION THE PRODUCT OF CLEAR AND UNMISTAKABLE ERROR

Pub. L. 105-111, §1(c)(2), Nov. 21, 1997, 111 Stat. 2272, provided that: "Notwithstanding section 402 of the Veterans Judicial Review Act (38 U.S.C. 7251 note), chapter 72 of title 38, United States Code, shall apply with respect to any decision of the Board of Veterans' Appeals on a claim alleging that a previous determination of the Board was the product of clear and unmistakable error if that claim is filed after, or was pending before the Department of Veterans Affairs, the Court of Veterans Appeals [now Court of Appeals for Veterans Claims], the Court of Appeals for the Federal Circuit, or the Supreme Court on the date of the enactment of this Act [Nov. 21, 1997]."

§ 7252. Jurisdiction; finality of decisions

(a) The Court of Appeals for Veterans Claims shall have exclusive jurisdiction to review deci

sions of the Board of Veterans' Appeals. The Secretary may not seek review of any such decision. The Court shall have power to affirm, modify, or reverse a decision of the Board or to remand the matter, as appropriate.

[See main edition for text of (b) and (c)] (As amended Pub. L. 105-368, title V, § 512(a)(1), Nov. 11, 1998, 112 Stat. 3341.)

AMENDMENTS

1998 Subsec. (a). Pub. L. 105-368 substituted "Court of Appeals for Veterans Claims" for "Court of Veterans Appeals".

§7253. Composition

(a) COMPOSITION.-The Court of Appeals for Veterans Claims is composed of at least three and not more than seven judges, one of whom shall serve as chief judge in accordance with subsection (d).

[See main edition for text of (b)]

(c) The term of office of the judges of the Court of Appeals for Veterans Claims shall be 15 years. A judge who is nominated by the President for appointment to an additional term on the Court without a break in service and whose term of office expires while that nomination is pending before the Senate may continue in office for up to 1 year while that nomination is pending.

(d) CHIEF JUDGE.-(1) The chief judge of the Court shall be the judge of the Court in regular active service who is senior in commission among the judges of the Court who

(A) have served for one or more years as judges of the Court; and

(B) have not previously served as chief judge.

(2) In any case in which there is no judge of the Court in regular active service who has served as a judge of the Court for at least one year, the judge of the court in regular active service who is senior in commission and has not served previously as chief judge shall act as the chief judge.

(3) Except as provided in paragraph (4), a judge of the Court shall serve as the chief judge under paragraph (1) for a term of five years or until the judge becomes age 70, whichever occurs first. If no other judge is eligible under paragraph (1) to serve as chief judge upon the expiration of that term, that judge shall continue to serve as chief judge until another judge becomes eligible under that paragraph to serve as chief judge.

(4)(A) The term of a chief judge shall be terminated before the end of the term prescribed by paragraph (3) if—

(i) the chief judge leaves regular active service as a judge of the court; 1 or

(ii) the chief judge notifies the other judges of the court1 in writing that such judge desires to be relieved of the duties of chief judge.

So in original. Probably should be capitalized.

(B) The effective date of a termination of the term under subparagraph (A) shall be the date on which the chief judge leaves regular active service or the date of the notification under subparagraph (A)(ii), as the case may be.

(5) If a chief judge is temporarily unable to perform the duties of chief judge, those duties shall be performed by the judge of the court1 in active service who is present, able and qualified to act, and is next in precedence.

(6) Judges who have the same seniority in commission shall be eligible for service as chief judge in accordance with their relative precedence.

(e) SALARY.-Each judge of the Court shall receive a salary at the same rate as is received by judges of the United States district courts.

[See main edition for text of (f) and (g)] (As amended Pub. L. 105-368, title V, §§ 501, 512(a)(1), Nov. 11, 1998, 112 Stat. 3340, 3341; Pub. L. 106-117, title X, §§ 1031, 1032(a), 1033, Nov. 30, 1999, 113 Stat. 1594, 1595.)

AMENDMENTS

1999 Subsec. (a). Pub. L. 106-117, § 1031, inserted heading and amended text of subsec. (a) generally. Prior to amendment, text read as follows: "The Court of Appeals for Veterans Claims shall be composed of a chief judge and at least two and not more than six associate judges."

Subsec. (d). Pub. L. 106-117, § 1032(a), inserted heading and amended text of subsec. (d) generally. Prior to amendment, text read as follows: "The chief judge is the head of the Court".

Subsec. (e). Pub. L. 106-117, §1033, inserted heading and amended text of subsec. (e) generally. Prior to amendment, text read as follows:

"(e)(1) The chief judge of the Court shall receive a salary at the same rate as is received by judges of the United States Courts of Appeals.

"(2) Each judge of the Court, other than the chief judge, shall receive a salary at the same rate as is received by judges of the United States district courts." 1998 Subsec. (a). Pub. L. 105-368, §512(a)(1), substituted "Court of Appeals for Veterans Claims" for "Court of Veterans Appeals".

Subsec. (c). Pub. L. 105-368, § 512(a)(1), substituted "Court of Appeals for Veterans Claims" for "Court of Veterans Appeals".

Pub. L. 105-368, §501, inserted at end "A judge who is nominated by the President for appointment to an additional term on the Court without a break in service and whose term of office expires while that nomination is pending before the Senate may continue in office for up to 1 year while that nomination is pending."

EFFECTIVE DATE OF 1999 AMENDMENT

Pub. L. 106-117, title X, §1036, Nov. 30, 1999, 113 Stat. 1595, provided that:

"(a) EFFECTIVE DATE.-The amendments made by this subtitle [subtitle C (§§ 1031-1036) of title X of Pub. L. 106-117, amending this section and sections 7254, 7281, 7296, and 7297 of this title] shall take effect on the date of the enactment of this Act [Nov. 30, 1999).

"(b) SAVINGS PROVISION FOR INCUMBENT CHIEF JUDGE.-The amendments made by this subtitle shall not apply while the individual who is chief judge of the Court [United States Court of Appeals for Veterans Claims] on the date of the enactment of this Act (Nov. 30, 1999] continues to serve as chief judge. If that individual, upon termination of service as chief judge, provides notice under section 7257 of title 38, United States Code, of availability for service in a recalled status, the rate of pay applicable to that individual under section 7296(c)(1)(A) of such title while serving in a recalled

status shall be at the rate of pay applicable to that individual at the time of retirement, if greater than the rate otherwise applicable under that section."

EFFECTIVE DATE OF 1998 AMENDMENT

Amendment by section 512(a)(1) of 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. SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 7257, 7296, 7297 of this title.

§7254. Organization

(a) The Court of Appeals for Veterans Claims shall have a seal which shall be judicially noticed.

[See main edition for text of (b) and (c)]

(d) PRECEDENCE OF JUDGES.-The chief judge of the Court shall have precedence and preside at any session that the chief judge attends. The other judges shall have precedence and preside according to the seniority of their original commissions. Judges whose commissions bear the same date shall have precedence according to seniority in age.

[See main edition for text of (e)]

(As amended Pub. L. 105-368, title V, § 512(a)(1), Nov. 11, 1998, 112 Stat. 3341; Pub. L. 106-117, title X, §1034, Nov. 30, 1999, 113 Stat. 1595.)

AMENDMENTS

1999 Subsec. (d). Pub. L. 106-117 inserted heading and amended text of subsec. (d) generally. Prior to amendment, text read as follows: "In the event of a vacancy in the position of chief judge of the Court, the associate judge senior in service on the Court shall serve as acting chief judge unless the President designates one of the other associate judges to serve as acting chief judge, in which case the judge so designated shall serve as acting chief judge."

1998 Subsec. (a). Pub. L. 105-368 substituted "Court of Appeals for Veterans Claims" for "Court of Veterans Appeals".

EFFECTIVE DATE OF 1999 AMENDMENT Amendment by Pub. L. 106-117 effective Nov. 30, 1999, with savings provision for incumbent chief judge, see section 1036 of Pub. L. 106-117, set out as a note under section 7253 of this title.

§7255. Offices

The principal office of the Court of Appeals for Veterans Claims shall be in the District of Columbia, but the Court may sit at any place within the United States.

(As amended Pub. L. 105-368, title V, § 512(a)(1), Nov. 11, 1998, 112 Stat. 3341.)

AMENDMENTS

1998-Pub. L. 105-368 substituted "Court of Appeals for Veterans Claims" for "Court of Veterans Appeals". 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.

FACILITIES FOR COURT OF APPEALS FOR VETERANS CLAIMS

Pub. L. 101-94, title II, §201, Aug. 16, 1989, 103 Stat. 626, as amended by Pub. L. 105-368, title V, § 512(c), Nov. 11, 1998, 112 Stat. 3342, provided that:

"(a) SPACE IN THE DISTRICT OF COLUMBIA.-The Administrator of General Services shall provide suitable building space in the District of Columbia for the United States Court of Appeals for Veterans Claims as the Court's principal place of business. The Administrator shall, if necessary, arrange for temporary space for the Court if permanent space is not immediately available for the Court. The Administrator shall place a high priority on the provision of such temporary and permanent space for the Court.

"(b) APPROVAL BY COURT.-Any space to be provided for the Court of Appeals for Veterans Claims under subsection (a) must be acceptable to the Court.

[See main edition for text of (c)]

§ 7256. Times and places of sessions

The times and places of sessions of the Court of Appeals for Veterans Claims shall be prescribed by the chief judge.

(As amended Pub. L. 105-368, title V, § 512(a)(1), Nov. 11, 1998, 112 Stat. 3341.)

AMENDMENTS

1998-Pub. L. 105-368 substituted "Court of Appeals for Veterans Claims" for "Court of Veterans Appeals". 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.

§ 7257. Recall of retired judges

(a)(1) A retired judge of the Court may be recalled for further service on the Court in accordance with this section. To be eligible to be recalled for such service, a retired judge must at the time of the judge's retirement provide to the chief judge of the Court (or, in the case of the chief judge, to the clerk of the Court) notice in writing that the retired judge is available for further service on the Court in accordance with this section and is willing to be recalled under this section. Such a notice provided by a retired judge is irrevocable.

(2) For the purposes of this section

(A) a retired judge is a judge of the Court of Appeals for Veterans Claims who retires from the Court under section 7296 of this title or under chapter 83 or 84 of title 5; and

(B) a recall-eligible retired judge is a retired judge who has provided a notice under paragraph (1).

(b)(1) The chief judge may recall for further service on the Court a recall-eligible retired judge in accordance with this section. Such a recall shall be made upon written certification by the chief judge that substantial service is expected to be performed by the retired judge for such period, not to exceed 90 days (or the equivalent), as determined by the chief judge to be necessary to meet the needs of the Court.

(2) A recall-eligible retired judge may not be recalled for more than 90 days (or the equiva

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