## Facts

- Veterans service organizations petitioned for direct review of 2002 Department of Veterans Affairs (VA) regulations governing Board of Veterans’ Appeals (Board) procedures under 38 U.S.C. § 502.
- Historically, when the Board received evidence not previously considered by the agency of original jurisdiction (AOJ), the matter was remanded to the AOJ for initial consideration and a supplemental statement of the case (SSOC), unless the claimant waived AOJ review or the Board could grant the benefit in full.
- VA amended 38 C.F.R. § 19.9(a)(2) to permit the Board to direct its own personnel to develop additional evidence necessary for an appellate decision, instead of remanding to the AOJ.
- Related amendments, including to 38 C.F.R. § 20.1304, allowed the Board to consider additional evidence in the first instance without remand and without obtaining a claimant’s written waiver of AOJ consideration.
- Petitioners argued these regulations unlawfully altered the statutory allocation of responsibilities between AOJ fact-finding/initial adjudication and Board appellate review, especially in light of 38 U.S.C. § 7104(a)’s “one review on appeal to the Secretary” requirement.

## Issues

1. Whether 38 C.F.R. § 19.9(a)(2), especially when operating with amended 38 C.F.R. § 20.1304, is valid insofar as it allows the Board to obtain and consider additional evidence without AOJ initial review and without a claimant waiver.
2. Whether the challenged procedural scheme is inconsistent with 38 U.S.C. § 7104(a)’s requirement that matters subject to decision by the Secretary receive “one review on appeal to the Secretary.”

## Decision

- The Federal Circuit granted the petitions in part.
- The court held 38 C.F.R. § 19.9(a)(2) invalid to the extent it, together with amended 38 C.F.R. § 20.1304, permitted the Board to consider additional evidence without remanding to the AOJ for initial consideration and without obtaining the claimant’s waiver.
- The court concluded this scheme was contrary to 38 U.S.C. § 7104(a) because it effectively allowed the Board to act as an initial fact-finder on evidence never reviewed by the AOJ.
- The disposition affected VA adjudicatory procedures rather than deciding the merits of any individual veteran’s benefits claim.

## Legal Principles

- Under 38 U.S.C. § 7104(a), the Board’s function is appellate review providing “one review on appeal,” not original adjudication based on evidence first developed and evaluated by the Board.
- Regulations that permit the Board to develop and initially consider new evidence, without AOJ review or claimant waiver, conflict with the statutory structure assigning initial fact-finding and decisionmaking to the AOJ.
- Agency rulemaking intended to streamline adjudication cannot override or reassign duties established by Congress in the governing statute; inconsistent regulations are invalid as not in accordance with law.
- After this decision, absent a full grant, the Board generally must either obtain a claimant waiver or remand for AOJ consideration when new evidence is introduced post-AOJ decision.

## Conclusion

The Federal Circuit invalidated VA regulations that allowed the Board to both develop and initially consider additional evidence without AOJ review or a claimant waiver, holding the scheme conflicted with 38 U.S.C. § 7104(a)’s requirement of a single appellate review to the Secretary within the statutory adjudication framework.


Disabled Am. Veterans v. Sec’y of Veterans Affs., 327 F.3d 1339 (Fed. Cir. 2003)