this is supplemental material for book a of your set of

Custom Federal Regulations Service™

This is supplemental material

for Book A of your set of

Federal Regulations

Title 38, Parts 0, 1, 2, 12, 14-16, 18-20, 25-26, 38-45, 48-49, 74-75

General

Veterans Benefits Administration

Supplement No. 135 Covering period of Federal Register issues

through March 5, 2019

Copyright © 2019 Jonathan Publishing

A-135–2

Need Assistance?

Questions concerning MISSING SUPPLEMENTS, need for ADDITIONAL BOOKS, and other

DISTRIBUTION LIST issues for this loose-leaf service should be directed to:

Department of Veterans Affairs


Administration

Mail Code: 20M33

810 Vermont Avenue, N.W.

Washington DC 20420

Telephone: 202/273-7588

Fax: 202/275-5947

E-mail: [email protected]

Questions concerning the FILING INSTRUCTIONS for this loose-leaf service,

or the reporting of SUBSTANTIVE ERRORS in the text,

may be directed to:

Jonathan Publishing

660 Laurel Street, B-103

Baton Rouge LA 70802

Telephone: 225-205-5873

Fax: 702-993-6003

E-mail: [email protected]

Copyright © 2019 Jonathan Publishing

A-135–3

GENERAL INSTRUCTIONS

Custom Federal Regulations Service™

Supplemental Materials for Book A

Code of Federal Regulations

Title 38, Parts 0, 1, 2, 12, 14-16, 18-20, 25-26, 38-45, 48-49, 74-75

General


Supplement No. 135

5 March 2019

Covering the period of Federal Register issues through March 1, 2019

When Book A was originally prepared, it was current through final regulations

published in the Federal Register of 21 April 1992. These supplemental materials are designed to

keep your regulations up to date. You should file the attached pages immediately, and record the

fact that you did so on the Supplement Filing Record which begins on page A-8 of Book A,

General.

A-135–4

To ensure accuracy and timeliness of your materials,

it is important that you follow these simple procedures: 1. Always file your supplemental materials immediately upon receipt. 2. Before filing, always check the Supplement Filing Record (page A-8) to be sure that all prior supplements have been filed. If you are missing any supplements, contact the Veterans Benefits Administration at the address listed on page A-2. 3. After filing, enter the relevant information on the Supplement Filing Record sheet (page A-8)—the date filed, name/initials of filer, and date through which the Federal Register is covered. 4. If as a result of a failure to file, or an undelivered supplement, you have more than one supplement to file at a time, be certain to file them in chronological order, lower number first. 5. Always retain the filing instructions (simply insert them at the back of the book) as a backup record of filing and for reference in case of a filing error. 6. Be certain that you permanently discard any pages indicated for removal in the filing instructions in order to avoid confusion later.

To execute the filing instructions, simply remove and throw away the pages listed under Remove These Old Pages, and replace them in each case with the corresponding pages from this supplement listed under Add These New Pages. Occasionally new pages will be added without removal of any old material (reflecting new regulations), and occasionally old pages will be removed without addition of any new material (reflecting rescinded regulations)—in these cases the word None will appear in the appropriate column.

A-135–5

FILING INSTRUCTIONS

Book A, Supplement No. 135

March 5, 2019

Remove these Add these Section(s)

old pages new pages Affected

Do not file this supplement until you confirm that

all prior supplements have been filed

A-43 to A-44 A-43 to A-44 Book A Lead

Material

20.7-1 to 20.103-1 20.7-1 to 20.103-1 §§20.101 & 20.103

20.104-3 to 20.110.1 20.104-3 to 20.110.1 §§20.105, 20.106,

20.107, 20.108

& 20.109

20.605-1 to 20.700-1 20.605-1 to 20.700-1 §20.606 thru 20.611

20.902-2 to 20.905-1 20.902-2 to 20.905-1 §§20.903, 20.904

& 20.905

20.1003-1 to 20.1004-1 20.1003-1 to 20.1004-1 §20.1004

38.INDEX-1 to 38.INDEX-2 38.INDEX-1 to 38.INDEX-2 Part 38 Index

38.603-1 to 38.618-1 38.603-1 to 38.618-1 §38.617

39.INDEX-1 to 39.INDEX-2 39.INDEX-1 to 39.INDEX-2 Part 39 Index

39.10-1 to 39.11-1 39.10-1 to 39.11-1 §39.10

Be sure to complete the

Supplement Filing Record (page A-8)

when you have finished filing this material.

A-135–6

HIGHLIGHTS

Book A, Supplement No. 135

March 5, 2019

Supplement Highlights references: Where substantive changes are made in the text of

regulations, the paragraphs of Highlights sections are cited at the end of the relevant section of text.

Thus, if you are reading §3.263, you will see a note at the end of that section which reads:

“Supplement Highlights references—6(2).” This means that paragraph 2 of the Highlights section in

Supplement No. 6 contains information about the changes made in §3.263. By keeping and filing the

Highlights sections, you will have a reference source explaining all substantive changes in the text of

the regulations.

Supplement frequency: This Book A (General) was originally supplemented twice a year,

in April and October. Beginning 1 August 1995, supplements will be issued every month during

which a final rule addition or modification is made to the parts of Title 38 covered by this book.

Supplements will be numbered consecutively as issued.

Modifications in this supplement include the following:

1. On 15 February 2019, the VA published a correction final rule, effective 19 February

2019, regarding its claims adjudication, appeals, and Rules of Practice of the Board of Veterans'

Appeals (Board) regulations. This correction addresses minor technical errors in the published final

rule. Changes:

• In §20.101, revised section heading and paragraph (b),

• In §20.103, revised section heading,

• Revised §20.105,


• In §20.107, revised section heading and re-designated paragraph (c) as (b),


• Revised §20.109,

• In §20.903, revised section heading and paragraph (b),

• In §20.904, revised section heading and paragraphs (c), (d)(3) and (d)(4),


• In §20.1004, revised section heading and paragraph (b).

2. On 25 February 2019, the VA published a correction final rule, effective that same day

to amend its national cemetery regulations prohibiting the interment or memorialization of certain

A-135–7

persons who have been convicted of Federal or State capital crimes. This final rule incorporates the

statutory prohibition against interment or memorialization in a VA national cemetery or VA-funded

State or Tribal veterans' cemetery of a person who has been convicted of a Federal or State crime

causing the person to be a tier III sex offender for purposes of the Sex Offender Registration and

Notification Act; who, for such crime, is sentenced to a minimum of life imprisonment; and whose

conviction is final (other than a person whose sentence was commuted by the President or

Governor of a State). This prohibition was enacted as part of the Dignified Burial and Other

Veterans' Benefits Improvement Act of 2012. Changes:

• In §38.617, revised section heading and paragraphs (a), (c), (d) and (e), and

• In §39.10, revised paragraph (b)(4).

A-135–8

[Reserved]

A-43

(No. 135 3/5/19)

26.2 Applicability and scope ................................................................................................ 26.2-1

26.3 Definitions .................................................................................................................... 26.3-1

26.4 Policy ............................................................................................................................ 26.4-1

26.5 Responsibilities ............................................................................................................. 26.5-1

26.6 Environmental documents ............................................................................................ 26.6-1

26.7 VA environmental decision making and documents .................................................... 26.7-1

26.8 Assistance to applicants ................................................................................................ 26.8-1

26.9 Information on and public participation in VA environmental process ....................... 26.9-1

Part 38

National Cemeteries of the


38.600 Definitions............................................................................................................ 38.600-1

38.601 Advisory Committee on Cemeteries and Memorials ........................................... 38.601-1

38.602 Names for national cemeteries and features......................................................... 38.602-1

38.603 Gifts and donations .............................................................................................. 38.603-1

38.617 Prohibition of interment or memorialization of persons who have been

convicted of Federal or State capital crimes or certain sex offenses ............. 38.617-1

38.618 Findings concerning commission of a capital crime where a person has not been

convicted due to death or flight to avoid prosecution .................................... 38.618-1

38.620 Persons eligible for burial .................................................................................... 38.620-1

38.621 Disinterments ....................................................................................................... 38.621-1

38.629 Outer burial receptacle allowance ........................................................................ 38.629-1

38.630 Headstones and markers....................................................................................... 38.630-1

38.631 Graves marked with a private headstone or marker ............................................. 38.631-1

38.632 Headstone and marker application process .......................................................... 38.632-1

38.633 Group memorial monuments ............................................................................... 38.633-1

Part 39

Aid for the Establishment, Expansion, and Improvement, or Operation and Maintenance,

of Veterans Cemeteries

Subpart A—General Provisions

39.1 Purpose ......................................................................................................................... 39.1-1

39.2 Definitions .................................................................................................................... 39.2-1

39.3 Priority list .................................................................................................................... 39.3-1

39.4 Decision makers, notifications, and additional information ......................................... 39.4-1

39.5 Submission of information and documents to VA. ...................................................... 39.5-1

39.6 Amendments to grant application. ................................................................................ 39.6-1

39.7 Line item adjustment to grants. .................................................................................... 39.7-1

39.8 Withdrawal of grant application. .................................................................................. 39.8-1

39.9 Hearings. ....................................................................................................................... 39.9-1

39.10 Cemetery requirements and prohibitions and recapture provisions. .......................... 39.10-1

39.11 State or Tribal Organizations to retain control of operations. .................................... 39.11-1

39.12-39.29 [Reserved]

A-44

(No. 135 3/5/19 )

Subpart B—Establishment, Expansion, and Improvement Projects

Grant Requirements and Procedures

39.30 General requirements for a grant................................................................................. 39.30-1

39.31 Preapplication requirements. ....................................................................................... 39.31-1

39.32 Plan preparation. ......................................................................................................... 39.32-1

39.33 Conferences. ................................................................................................................ 39.33-1

39.34 Application requirements. ........................................................................................... 39.34-1

39.35 Final review and approval of application. ................................................................... 39.35-1

39.36-39.49 [Reserved]

Award of Grant

39.50 Amount of grant. ......................................................................................................... 39.50-1

39.51 Payment of grant award. ............................................................................................. 39.51-1

39.52-39.59 [Reserved]

Standards and Requirements

39.60 General requirements for site selection and construction of veterans cemeteries....... 39.60-1

39.61 Site planning standards. .............................................................................................. 39.61-1

39.62 Space criteria for support facilities. ............................................................................ 39.62-1

39.63 Architectural design standards. ................................................................................... 39.63-1

39.64-39.79 [Reserved]

Subpart C—Operation and Maintenance Projects

Grant Requirements and Procedures

39.80 General requirements for a grant................................................................................. 39.80-1

39.81 Preapplication requirements. ....................................................................................... 39.81-1

39.82 Plan preparation. ......................................................................................................... 39.82-1

39.83 Conferences. ................................................................................................................ 39.83-1

39.84 Application requirements. ........................................................................................... 39.84-1

39.85 Final review and approval of application. ................................................................... 39.85-1

39.86-39.99 [Reserved]

Award of Grant

39.100 Amount of grant. ..................................................................................................... 39.100-1

39.101 Payment of grant award. ......................................................................................... 39.101-1

39.102-39.119 [Reserved]

Subpart D—Grant Recipient Responsibilities, Inspections, and Reports Following

Project Completion

39.120 Documentation of grant accomplishments. ............................................................. 39.120-1

39.121 State or Tribal Organization responsibilities following project completion. .......... 39.121-1

20.7-1 §20.7–20.99—[Reserved] 20.99-1

(No. 134 2/5/19)

§§20.7–20.99 [Reserved]

20.100-1 §20.100—Rule 100. Establishment of the Board 20.101-1 §20.101—Composition of the Board; Titles

(No. 135 3/5/19)

Subpart B — The Board

§20.100 Rule 100. Establishment of the Board.

The Board of Veterans’ Appeals is established by authority of, and functions pursuant to,

title 38, United States Code, chapter 71.

[48 FR 6969, Feb. 17, 1983, as amended at 84 FR 180, Jan. 18, 2019]

Supplement Highlights references: 134(1).

§20.101 Rule 101. Composition of the Board; Titles.

(a) The Board consists of a Chairman, Vice Chairman, Deputy Vice Chairmen, Members

and professional, administrative, clerical and stenographic personnel. Deputy Vice Chairmen are

Members of the Board who are appointed to that office by the Secretary upon the

recommendation of the Chairman.

(b) A Member of the Board (other than the Chairman) may also be known as a Veterans

Law Judge. An individual designated as an acting member pursuant to 38 U.S.C. 7101(c)(1) may

also be known as an acting Veterans Law Judge. (Authority: 38 U.S.C. 501(a), 512, 7101(a))

[48 FR 6969, Feb. 17, 1983, as amended at 57 FR 4104, Feb. 3, 1992; 61 FR 20448, May

7, 1996; 65 FR 55462, Sept. 14, 2000; 66 FR 13437, Mar. 6, 2001; 68 FR 6625, Feb. 10, 2003;

84 FR 180, Jan. 18, 2019; 84 FR 4336, Feb. 15, 2019]

Supplement Highlights references: 14(3), 40(2), 42(1), 53(1), 134(1), 135(1).

20.102-1 §20.102—Name, business hours, and mailing address of the Board 20.102-1

(No. 134 2/5/19)

§20.102 Rule 102. Name, business hours, and mailing address of the Board.

(a) Name. The name of the Board is the Board of Veterans’ Appeals.

(b) Business hours. The Board is open during business hours on all days except Saturday,

Sunday and legal holidays. Business hours are from 8 a.m. to 4:30 p.m.

(c) Mailing address. The mailing address of the Board is: Board of Veterans' Appeals,

P.O. Box 27063, Washington, DC 20038. Mail to the Board that is not related to an appeal must

be addressed to: Board of Veterans' Appeals, 810 Vermont Avenue NW, Washington, DC 20420.

(Authority: 38 U.S.C. 7101(a))

[57 FR 4109, Feb. 3, 1992, as amended at 84 FR 180, Jan. 18, 2019]

Supplement Highlights reference: 134(1).

20.103-1 §20.103—Principal functions of the Board 20.103-1

(No. 135 3/5/19)

§20.103 Rule 103. Principal functions of the Board.

The principal functions of the Board are to make determinations of appellate jurisdiction,

consider all applications on appeal properly before it, conduct hearings on appeal, evaluate the

evidence of record, and enter decisions in writing on the questions presented on appeal.

(Authority: 38 U.S.C. 7102, 7104, 7107)


7, 1996; 84 FR 180, Jan. 18, 2019; 84 FE 4337, Feb. 15, 2019]

Supplement Highlights ReferenceS: 134(1), 135(1).

20.104-3 §20.104—Jurisdiction of the Board 20.104-3

(No. 134 2/5/19)

determinations of the need for and appropriateness of specific types of medical care and

treatment for an individual, are not adjudicative matters and are beyond the Board’s jurisdiction.

Typical examples of these issues are whether a particular drug should be prescribed, whether a

specific type of physiotherapy should be ordered, and similar judgmental treatment decisions

with which an attending physician may be faced.

(c) Authority to determine jurisdiction. The Board shall decide all questions pertaining to

its jurisdictional authority to review a particular case. When the Board, on its own initiative,

raises a question as to a potential jurisdictional defect, all parties to the proceeding and their

representative(s), if any, will be given notice of the potential jurisdictional defect(s) and granted a

period of 60 days following the date on which such notice is mailed to present written argument

and additional evidence relevant to jurisdiction and to request a hearing to present oral argument

on the jurisdictional question(s). The date of mailing of the notice will be presumed to be the

same as the date stamped on the letter of notification. The Board may dismiss any case over

which it determines it does not have jurisdiction.

(d) (1) Appeals as to jurisdiction in legacy claims and appeals. All claimants in legacy

appeals, as defined in §19.2 of this chapter, have the right to appeal a determination made by the

agency of original jurisdiction that the Board does not have jurisdictional authority to review a

particular case. Jurisdictional questions which a claimant may appeal, include, but are not limited

to, questions relating to the timely filing and adequacy of the Notice of Disagreement and the

Substantive Appeal. (Authority: Sec. 2, Pub. L. 115-55; 131 Stat. 1105)

(2) Application of 20.904 and 20.1305. Section 20.904 of this part shall not apply to

proceedings to determine the Board's own jurisdiction. However, the Board may remand a case to

an agency of original jurisdiction in order to obtain assistance in securing evidence of

jurisdictional facts. The time restrictions on requesting a hearing and submitting additional

evidence in §20.1305 of this part do not apply to a hearing requested, or evidence submitted,

under paragraph (c) of this section. (Authority: 38 U.S.C. 511(a), 7104, 7105, 7108)

[57 FR 4109, Feb. 3, 1992, as amended at 66 FR 53339, Oct. 22, 2001; 84 FR 180, Jan.

18, 2019]

Supplement Highlights reference: 45(3), 134(1).

20.105-1 §20.105—Criteria governing disposition of appeals 20.106-1 §20.106—Assignment of proceedings

(No. 135 3/5/19)

§20.105 Rule 105. Criteria governing disposition of appeals.

In the consideration of appeals and in its decisions, the Board is bound by applicable

statutes, regulations of the Department of Veterans Affairs, and precedent opinions of the

General Counsel of the Department of Veterans Affairs. The Board is not bound by Department

manuals, circulars, or similar administrative issues. (Authority: 38 U.S.C. 501(a), 7104(c))

[48 FR 6969, Feb. 17, 1983, as amended at 84 FR 177, Jan. 18, 2019; 84 FR 4337, Feb.

15, 2019]

Supplement Highlights references: 134(1), 135(1)

§20.106 Rule 106. Assignment of proceedings

(a) Assignment. The Chairman may assign a proceeding instituted before the Board,

including any motion, to an individual Member or to a panel of three or more Members for

adjudication or other appropriate action. The Chairman may participate in a proceeding assigned

to a panel of Members. (Authority: 38 U.S.C. 7102)

(b) Inability to serve. If a Member is unable to participate in the disposition of a

proceeding or motion to which the Member has been assigned, the Chairman may assign the

proceeding or motion to another Member or substitute another Member (in the case of a

proceeding or motion assigned to a panel). Authority: 38 U.S.C. 7101(a), 7102)


7, 1996; 84 FR 177, Jan. 18, 2019; 84 FR 4337, Feb. 15, 2019]

Supplement Highlights references: 14(3), 134(1), 135(1).

20.107-1 §20.107—Disqualification of Members 20.107-1

(No. 135 3/5/19)

§20.107 Rule 107. Disqualification of Members.

(a) General. A Member of the Board will disqualify himself or herself in a hearing or

decision on an appeal if that appeal involves a determination in which he or she participated or

had supervisory responsibility in the agency of original jurisdiction prior to his or her

appointment as a Member of the Board, or where there are other circumstances which might give

the impression of bias either for or against the appellant. (Authority: 38 U.S.C. 7102, 7104)

(b) Disqualification of Members by the Chairman. The Chairman of the Board, on his or

her own motion, may disqualify a Member from acting in an appeal on the grounds set forth in

paragraph (a) of this section and in those cases where a Member is unable or unwilling to act.

(Authority: 38 U.S.C. 7102, 7104, 7106)


7, 1996; 84 FR 177, Jan. 18, 2019; 84 FR 4337, Feb. 15, 2019]


20.108-1 §20.108—Delegation of authority to Chairman and Vice Chairman, Board of Veterans’ Appeals 20.108-1

(No. 135 3/5/19)

§20.108 Rule 108. Delegation of authority to Chairman and Vice Chairman, Board of

Veterans’ Appeals.

The Chairman and/or Vice Chairman have authority delegated by the Secretary of

Veterans Affairs to:

(a) Approve the assumption of appellate jurisdiction of an adjudicative determination

which has not become final in order to grant a benefit, and

(b) Order VA Central Office investigations of matters before the Board. (Authority: 38

U.S.C. 303, 512(a))

[48 FR 6969, Feb. 17, 1983, as amended at 84 FR 177, Jan. 18, 2019; 84 FR 4337, Feb.

15, 2019]

Supplement Highlights references: 134(1), 135(1)

20.109-1 §20.109— Delegation of authority to Vice Chairman, Deputy Vice Chairmen, or Members of the Board 20.109-1

(No. 135 3/5/19)

§20.109 Rule 109. Delegation of authority to Vice Chairman, Deputy Vice Chairmen, or

Members of the Board.

(a) The authority exercised by the Chairman of the Board of Veterans' Appeals described

in Rules 106(b) and 107(b) (§§20.106(b) and 20.107(b)) may also be exercised by the Vice

Chairman of the Board.

(b) The authority exercised by the Chairman of the Board of Veterans' Appeals described

in Rules 1004 and 1002(c) (§§20.1004 and 20.1002(c)) may also be exercised by the Vice

Chairman of the Board and by Deputy Vice Chairmen of the Board.

(c) The authority exercised by the Chairman of the Board of Veterans' Appeals described

in Rule 2 (§20.2), may also be exercised by the Vice Chairman of the Board; by Deputy Vice

Chairmen of the Board; and, in connection with a proceeding or motion assigned to them by the

Chairman, by a Member or Members of the Board.

(Authority: 38 U.S.C. 512(a), 7102, 7104)

[48 FR 6969, Feb. 17, 1983, as amended at 57 FR 4104, Feb. 3, 1992; 70 FR 8930, Feb.

24, 2005; 84 FR 177, Jan. 18, 2019; 84 FR 4337, Feb. 15, 2019]

Supplement Highlights references: 68(1), 134(1), 135(1)

20.110-1 §20.110—Rule 110. Computation of time limit for filing 20.110-1

(No. 134 2/5/19)

§20.110 Rule 110. Computation of time limit for filing.

(a) Acceptance of postmark date. When these Rules require that any written document be

filed within a specified period of time, a response postmarked prior to expiration of the

applicable time limit will be accepted as having been timely filed. In the event that the postmark

is not of record, the postmark date will be presumed to be five days prior to the date of receipt of

the document by the Department of Veterans Affairs. In calculating this 5-day period, Saturdays,

Sundays and legal holidays will be excluded.

(b) Computation of time limit. In computing the time limit for filing a written document,

the first day of the specified period will be excluded and the last day included. Where the time

limit would expire on a Saturday, Sunday, or legal holiday, the next succeeding workday will be

included in the computation. (Authority: 38 U.S.C. 7105)

[84 FR 182, Jan. 18, 2019]

Supplement Highlights References: 134(1)

20.605-1 §20.605—Procurement of additional evidence following a hearing in a legacy appeal 20.611-1

(No. 135 3/5/19)

§20.605 Rule 605. Procurement of additional evidence following a hearing in a legacy

appeal.

If it appears during the course of a hearing that additional evidence would assist in the

review of the questions at issue, the presiding Member may direct that the record be left open so

that the appellant and his or her representative may obtain the desired evidence. The presiding

Member will determine the period of time during which the record will stay open, considering

the amount of time estimated by the appellant or representative as needed to obtain the evidence

and other factors adduced during the hearing. Ordinarily, the period will not exceed 60 days, and

will be as short as possible in order that appellate consideration of the case not be unnecessarily

delayed. (Authority: 38 U.S.C. 7102; 38 U.S.C. 7105, 7101 (2016))

[57 FR 4109, Feb. 3, 1992, as amended at 61 FR 20452, May 7, 1996; 84 FR 187, Jan.

18, 2019]

Supplement Highlights References: 134(1)

§§20.606 – 20.611 [Reserved]

20.700-1 §20.700—General 20.700-1

(No. 134 2/5/19)

Subpart H — Hearings on Appeal

§20.700 Rule 700. General.

(a) Right to a hearing. A hearing on appeal will be granted if an appellant, or an

appellant's representative acting on his or her behalf, expresses a desire to testify before the

Board. An appellant is limited to one Board hearing following the filing of a Notice of

Disagreement with a decision of the agency of original jurisdiction. Requests for additional

Board hearings may be granted for good cause shown.

(b) Purpose of hearing. The purpose of a hearing is to receive argument and testimony

relevant and material to the appellate issue or issues. It is contemplated that the appellant and

witnesses, if any, will be present. A hearing will not normally be scheduled solely for the purpose

of receiving argument by a representative. Such argument may be submitted in the form of a

written brief. Requests for appearances by representatives alone to personally present argument

to Members of the Board may be granted if good cause is shown. Whether good cause has been

shown will be determined by the presiding Member assigned to conduct the hearing.

(c) Non-adversarial proceedings. Hearings conducted by the Board are ex parte in nature

and non-adversarial. Parties to the hearing will be permitted to ask questions, including follow-

up questions, of all witnesses but cross-examination will not be permitted. Proceedings will not

be limited by legal rules of evidence, but reasonable bounds of relevancy and materiality will be

maintained. The presiding Member may set reasonable time limits for the presentation of

argument and may exclude documentary evidence, testimony, and/or argument which is not

relevant or material to the issue, or issues, being considered or which is unduly repetitious.

(Authority: 38 U.S.C. 7102, 7105(a), 7107)

[57 FR 4109, Feb. 3, 1992, as amended at 58 FR 27935, May 12, 1993; 61 FR 20450,

May 7, 1996; 84 FR 184, Jan. 18, 2019]


20.902-2 §20.902—Order of consideration of appeals 20.902-2

(No. 134 2/5/19)

(d) Consideration of appeals remanded by the United States Court of Appeals for

Veterans Claims. A case remanded by the United States Court of Appeals for Veterans Claims

for additional development or other appropriate action will be treated expeditiously by the Board

without regard to its place on the Board’s docket. (Authority: 38 U.S.C. 7107, Pub. Law No.

103-446, §302)

(e) Postponement to provide hearing. Any other provision of this Rule notwithstanding, a case

may be postponed for later consideration and determination if such postponement is necessary to

afford the appellant a hearing. (Authority: Sec. 302, Pub. L. 103-446; 108 Stat. 4645)

[57 FR 4109, Feb. 3, 1992, as amended at 60 FR 51923, Oct. 4, 1995; 61 FR 20453, May

7, 1996; 65 FR 14472, Mar. 17, 2000; 67 FR 16023, Apr. 4, 2002; 68 FR 53683, Sept. 12, 2003;

79 FR 52984, Sep. 5, 2014; 84 FR 190, Jan. 18, 2019]

Supplement Highlights references: 9(1), 14(3), 39(1), 58(3), 111(1), 134(1).

20.903-1 §20.903—The decision 20.903-1

(No. 135 3/5/19)

§20.903 Rule 903. The decision.

(a) Decisions based on entire record. The appellant will not be presumed to be in

agreement with any statement of fact contained in a Statement of the Case to which no exception

is taken. Decisions of the Board are based on a review of the entire record. (Authority: 38 U.S.C.

7104(a), 7105(d)(4))

(b) Content. The decision of the Board will be in writing and will set forth specifically the

issue or issues under appellate consideration. Except with respect to issues remanded to the

agency of original jurisdiction for further development of the case and appeals which are

dismissed because the issue has been resolved by administrative action or because an appellant

seeking non-monetary benefits has died while the appeal was pending, the decision will also

include findings of fact and conclusions of law on all material issues of fact and law presented on

the record, the reasons or bases for those findings and conclusions, and an order granting or

denying the benefit or benefits sought on appeal or dismissing the appeal.

(c) A decision by a panel of Members will be by a majority vote of the panel Members.

(Authority: 38 U.S.C. 7104(d) (2016))


7, 1996l 84 FR 177, Jan. 18, 2019; 84 FR 4337, Feb. 15, 2019]

Supplement Highlights references: 14(3), 134(1), 135(1)

20.904-1 §20.904—Remand or referral for further action 20.904-1

(No. 135 3/5/19)

§20.904 Rule 904. Remand or referral for further action.

(a) Remand. If further evidence, clarification of the evidence, correction of a procedural

defect, or any other action is essential for a proper appellate decision, a Veterans Law Judge or

panel of Veterans Law Judges shall remand the case to the agency of original jurisdiction,

specifying the action to be undertaken.

(b) Referral. The Board shall refer to the agency of original jurisdiction for appropriate

consideration and handling in the first instance all claims reasonably raised by the record that

have not been initially adjudicated by the agency of original jurisdiction, except for claims over

which the Board has original jurisdiction.

(c) Remand for a Statement of the Case. In cases before the Board in which a claimant

has timely filed a Notice of Disagreement with a determination of the agency of original

jurisdiction on a claim, but the record reflects that the agency of original jurisdiction has not

subsequently granted the claim in full and has not furnished the claimant with a Statement of the

Case, the Board shall remand the claim to the agency of original jurisdiction with instructions to

prepare and issue a Statement of the Case in accordance with the provisions of part 19, subpart B

of this chapter. A remand for a Statement of the Case is not required if the claimant, consistent

with the withdrawal requirements of §19.55 of this chapter, withdraws the Notice of

Disagreement.

(d) Exceptions. A remand or referral to the agency of original jurisdiction is not necessary

for any of the following purposes:

(1) Clarifying a procedural matter before the Board, including the appellant's

choice of representative before the Board, the issues on appeal, or requests for a hearing before

the Board;

(2) Considering law not already considered by the agency of original jurisdiction,

including, but not limited to, statutes, regulations, and court decisions;

(3) Reviewing additional evidence received by the Board, if, pursuant to Rule

1305 (§20.1305(c) of this part), the appellant or the appellant's representative waives the right to

initial consideration by the agency of original jurisdiction, or if the Board determines that the

benefit or benefits to which the evidence relates may be fully allowed on appeal;

(4) Requesting an opinion under Rule 906 (§20.906 of this part);

(5) Supplementing the record with a recognized medical treatise; or

(6) Considering a matter over which the Board has original jurisdiction.

Authority: 38 U.S.C. 7102, 7103(c); 38 U.S.C. 7104(a), 7105 (2016).


7, 1996; 62 FR 52503, Oct. 8, 1997; 67 FR 3104, Jan. 23, 2002; 69 FR 53808, Sept. 3, 2004; 76

FR 17547, Mar. 30, 2011; 84 FR 177, Jan. 18, 2019; 84 FR 4337, Feb. 15, 2019]

Supplement Highlights references: 14(3), 24(2), 47(1), 64(1), 99(1), 134(1), 135(1).

20.905-1 §20.905—Content of Board decision, remand, or order in simultaneously contested claims 20.905-1

(No. 135 3/5/19)

§20.905 Rule 905. Content of Board decision, remand, or order in simultaneously

contested claims.

The content of the Board’s decision, remand, or order in appeals involving a

simultaneously contested claim will be limited to information that directly affects the issues

involved in the contested claim. Appellate issues that do not involve all of the contesting parties

will be addressed in one or more separate written decisions, remands, or orders that will be

furnished only to the appellants concerned and their representatives, if any. (Authority: 5 U.S.C.

552a(b), 38 U.S.C. 5701(a))

[48 FR 6969, Feb. 17, 1983, as amended at 57 FR 4104, Feb. 3, 1992; 61 FR 68666, Dec.

30, 1996; 84 FR 177, Jan. 18, 2019 ; 84 FR 4337, Feb. 15, 2019]


20.1003-1 §20.1003—Hearings on reconsideration 20.1003-1

(No. 134 2/5/19)

§20.1003 Rule 1003. Hearings on reconsideration.

After a motion for reconsideration has been allowed, a hearing will be granted if the issue

under reconsideration was considered on a docket for cases that may include a hearing, and an

appellant requests a hearing before the Board. The hearing will be held by a Member or Members

assigned to the reconsideration panel. A hearing will not normally be scheduled solely for the

purpose of receiving argument by a representative. Such argument should be submitted in the

form of a written brief. Requests for appearances by representatives alone to personally present

argument to a Member or panel of Members of the Board may be granted if good cause is shown.

Whether good cause has been shown will be determined by the presiding Member. (Authority:

38 U.S.C. 7102, 7103, 7105(a))

[57 FR 4109, Feb. 3, 1992, as amended at 61 FR 20453, May 7, 1996; 84 FR 191, Jan.

18, 2019]

Supplement Highlights reference: 14(3), 134(1).

20.1004-1 §20.1004—Reconsideration panel 20.1004-1

(No. 135 3/5/19)

§20.1004 Rule 1004. Reconsideration panel.

(a) Assignment of Members. When a motion for reconsideration is allowed, the Chairman

will assign a panel of three or more Members of the Board, which may include the Chairman, to

conduct the reconsideration.

(b) Number of Members constituting a reconsideration panel. In the case of a matter

originally decided by a single Member of the Board, the case shall be referred to a panel of three

Members of the Board. In the case of a matter originally decided by a panel of Members of the

Board, the case shall be referred to an enlarged panel, consisting of three or more Members than

the original panel. In order to obtain a majority opinion, the number of Members assigned to a

reconsideration panel may be increased in successive increments of three.

(c) Members included in the reconsideration panel. The reconsideration panel may not

include any Member who participated in the decision that is being reconsidered. Additional

Members will be assigned in accordance with paragraph (b) of this section. (Authority: 38

U.S.C. 7102, 7103)


7, 1996; 84 FR 177, Jan. 18,2019 ; 84 FR 4337, Feb. 15, 2019]

Supplement Highlights references: 14(3),134(1), 135(1).

38.INDEX-1 38.INDEX-1

(No. 135 3/5/19)

Part 38

National Cemeteries of the


Authority: 38 U.S.C. 107, 501, 512, chapter 24, 7105, and as noted in specific sections.

Source: 70 FR 4769, January 31, 2005, unless otherwise indicated.

— Section Title Index — Advisory Committee on Cemeteries and Memorials ..............................................................38.601

Definitions...............................................................................................................................38.600

Disinterments ..........................................................................................................................38.621

Findings concerning commission of a capital crime where a person has not been

convicted due to death or flight to avoid prosecution .......................................................38.618

Gifts and donations .................................................................................................................38.603

Graves marked with a private headstone or marker ................................................................38.631

Group memorial monuments ..................................................................................................38.633

Headstone or marker application process ...............................................................................38.632

Headstones and markers..........................................................................................................38.630

Names for national cemeteries and features............................................................................38.602

Outer burial receptacle allowance ...........................................................................................38.629

Persons eligible for burial .......................................................................................................38.620

Prohibition of interment or memorialization of persons who have been convicted of

Federal or State capital crimes or certain sex offenses .....................................................38.617

�


(No. 135 3/5/19)

Reserved

38.603-1 §38.603—Gifts and donations 38.603-1

(No. 124 9/5/16)

§38.603 Gifts and donations.

(a) Gifts and donations will be accepted only after it has been determined that the donor

has a clear understanding that title thereto passes to, and is vested in, the United States, and that

the donor relinquishes all control over the future use or disposition of the gift or donation, with

the following exceptions:

(1) Carillons will be accepted with the condition that the donor will provide the

maintenance and the operator or the mechanical means of operation. The time of operation and

the maintenance will be coordinated with the superintendent of the national cemetery.

(2) Articles donated for a specific purpose and which are usable only for that

purpose may be returned to the donor if the purpose for which the articles were donated cannot

be accomplished.

(3) If the donor directs that the gift is donated for a particular use, those directions

will be carried out insofar as they are proper and practicable and not in violation of Department

of Veterans Affairs policy.

(4) When considered appropriate and not in conflict with the purpose of the

national cemetery, the donor may be recognized by a suitable inscription on those gifts. In no

case will the inscription give the impression that the gift is owned by, or that its future use is

controlled by, the donor. Any tablet or plaque, containing an inscription will be of such size and

design as will harmonize with the general nature and design of the gift.

(b) The Under Secretary of Memorial Affairs, or his designee, may solicit gifts and

donations, which include monetary donations, in-kind goods and services, and personal property,

or authorize the use of their names, the name of the Secretary, or the name of the Department of

Veterans Affairs by an individual or organization in any campaign or drive for donation of

money or articles to the Department of Veterans Affairs for the purpose of beautifying, or for the

benefit of, one or more national cemeteries. (Authority: 38 U.S.C. 2407.)

[as amended at 81 FR 44795, July 11, 2016]

Supplement Highlights Reference: 124(1)

Next Section is §38.617

38.617-1 §38.617— Prohibition of interment or memorialization of persons who have been convicted of 38.617-1

Federal or State capital crimes or certain sex offenses

(No. 135 3/5/19)

§38.617 Prohibition of interment or memorialization of persons who have been convicted

of Federal or State capital crimes or certain sex offenses

(a) Persons prohibited. The interment in a national cemetery under control of the

National Cemetery Administration of the remains of any person, or memorialization of such

person, shall not take place absent a good faith effort by the Under Secretary for Memorial

Affairs, or his or her designee, to determine whether such person is barred from receipt of such

benefits because the individual for whom interment or memorialization is sought is:

(1) A person identified to the Secretary of Veterans Affairs by the United States

Attorney General, prior to approval of interment or memorialization, as an individual who has

been convicted of a Federal capital crime, and whose conviction is final, other than a person

whose sentence was commuted by the President.

(2) A person identified to the Secretary of Veterans Affairs by an appropriate State

official, prior to approval of interment or memorialization, as an individual who has been

convicted of a State capital crime, and whose conviction is final, other than a person whose

sentence was commuted by the Governor of a State.

(3) A person found under procedures specified in §38.618 to have committed a

Federal or State capital crime but avoided conviction of such crime by reason of unavailability

for trial due to death or flight to avoid prosecution.

(4) A person identified to the Secretary of Veterans Affairs, by the United States

Attorney General, in the case of a Federal crime, or by an appropriate State official, in the case of

a State crime, as an individual who has been convicted of a Federal or State crime causing the

person to be a tier III sex offender for purposes of the Sex Offender Registration and Notification

Act (34 U.S.C. 20901, et seq.); who, for such crime, is sentenced to a minimum of life

imprisonment; and whose conviction is final (other than a person whose sentence was commuted

by the President or Governor of a State).

(b) Notice. The prohibition referred to in paragraph (a)(3) of this section is not contingent

on receipt by the Secretary of Veterans Affairs or any other VA official of notice from any

Federal or State official.

(c) Receipt of notification. The Under Secretary for Memorial Affairs is delegated

authority to receive from the United States Attorney General and appropriate State officials on

behalf of the Secretary of Veterans Affairs the notification referred to in paragraphs (a)(1), (2),

and (4) of this section.

(d) Decision where notification previously received. Upon receipt of a request for

interment or memorialization, where the Secretary of Veterans Affairs has received the

notification referred to in paragraph (a)(1), (2), or (4) of this section with regard to the deceased,

the Under Secretary for Memorial Affairs, or his or her designee, will make a decision on the

request for interment or memorialization pursuant to 38 U.S.C. 2411.

38.617-2 §38.617— Prohibition of interment or memorialization of persons who have been convicted of 38.617-2

Federal or State capital crimes or certain sex offenses

(No. 135 3/5/19)

(e) Inquiry.

(1) Upon receipt of a request for interment or memorialization, where the

Secretary of Veterans Affairs has not received the notification referred to in paragraph (a)(1), (2),

or (4) of this section with regard to the deceased, but the Under Secretary for Memorial Affairs,

or his or her designee, has reason to believe that the deceased may have been convicted of a

Federal or State capital crime or sex offense as referred to in paragraph (a)(1), (2), or (4) of this

section, the Under Secretary for Memorial Affairs, or his or her designee, will initiate an inquiry

to either:

(i) The United States Attorney General, requesting notification of whether

the deceased has been convicted of a Federal capital crime or sex offense as referred to in

paragraph (a)(1) or (4) of this section; or

(ii) An appropriate State official, requesting notification of whether the

deceased has been convicted of a State capital crime or sex offense as referred to in paragraph

(a)(2) or (4) of this section.

(2) The Under Secretary for Memorial Affairs, or his or her designee, will defer

decision on whether to approve interment or memorialization until after a response is received

from the Attorney General or appropriate State official.

(f) Decision after inquiry. Where an inquiry has been initiated under paragraph (e) of this

section, the Under Secretary for Memorial Affairs, or his or her designee, will make a decision

on the request for interment or memorialization pursuant to 38 U.S.C. 2411 upon receipt of the

notification requested, unless the Under Secretary for Memorial Affairs, or his or her designee,

initiates an inquiry pursuant to §38.618(a).

(g) Notice of decision. Written notice of a decision under paragraph (d) or (f) of this

section will be provided by the Under Secretary for Memorial Affairs, or his or her designee, to

the personal representative of the deceased, along with written notice of appellate rights in

accordance with §19.25 of this title. This notice of appellate rights will include notice of the

opportunity to file a notice of disagreement with the decision of the Under Secretary for

Memorial Affairs, or his or her designee. Action following receipt of a notice of disagreement

with a denial of eligibility for interment or memorialization under this section will be in

accordance with §§19.26 through 19.38 of this title. (Authority: 38 U.S.C. 512, 2411, 7105)

[70 FR 4769, Jan. 31, 2005, as amended at 73 FR 35352, June 23, 2008; 84 FR 5954,

Feb. 25, 2019]

Supplement Highlights references: 84(1), 135(2).

38.618-1 §38.618—Findings concerning commission of a capital crime where a person 38.618-1 has not been convicted due to death or flight to avoid prosecution

(No. 67 2/25/05)

§38.618 Findings concerning commission of a capital crime where a person has not been

convicted due to death or flight to avoid prosecution.

(a) Inquiry. With respect to a request for interment or memorialization, if a cemetery

director has reason to believe that a deceased individual who is otherwise eligible for interment

or memorialization may have committed a Federal or State capital crime, but avoided conviction

of such crime by reason of unavailability for trial due to death or flight to avoid prosecution, the

cemetery director, with the assistance of the VA regional counsel, as necessary, will initiate an

inquiry seeking information from Federal, State, or local law enforcement officials, or other

sources of potentially relevant information. After completion of this inquiry and any further

measures required under paragraphs (c), (d), (e), and (f) of this section, the cemetery director will

make a decision on the request for interment or memorialization in accordance with paragraph

(b), (e), or (g) of this section.

(b) Decision approving request without a proceeding or termination of a claim by

personal representative without a proceeding.

(1) If, after conducting the inquiry described in paragraph (a) of this section, the

cemetery director determines that there is no clear and convincing evidence that the deceased

committed a Federal or State capital crime of which he or she was not convicted due to death or

flight to avoid prosecution, and the deceased remains otherwise eligible, the cemetery director

will make a decision approving the interment or memorialization.

(2) If the personal representative elects for burial at a location other than a VA

national cemetery, or makes alternate arrangements for burial at a location other than a VA

national cemetery, the request for interment or memorialization will be considered withdrawn

and action on the request will be terminated.

(c) Initiation of a proceeding.

(1) If, after conducting the inquiry described in paragraph (a) of this section, the

cemetery director determines that there appears to be clear and convincing evidence that the

deceased has committed a Federal or State capital crime of which he or she was not convicted by

reason of unavailability for trial due to death or flight to avoid prosecution, the cemetery director

will provide the personal representative of the deceased with a written summary of the evidence

of record and a written notice of procedural options.

(2) The notice of procedural options will inform the personal representative that

he or she may, within 15 days of receipt of the notice:

(i) Request a hearing on the matter;

(ii) Submit a written statement, with or without supporting documentation,

for inclusion in the record;

(iii) Waive a hearing and submission of a written statement and have the

matter forwarded immediately to the Under Secretary for Memorial Affairs for a finding; or


(No. 135 3/5/19)

Part 39

Aid for the Establishment, Expansion, and

Improvement, or Operation and Maintenance, of Veterans Cemeteries

Authority: 38 U.S.C. 101, 501, 2408, 2411, 3765.

Source: 75 FR 34004, June 16, 2009, revised at 75 FR 34004, June 16, 2010,

unless otherwise indicated.

— Section Title Index —

Subpart A—General Provisions

Amendments to grant application. .................................................................................... 39.6-1

Cemetery requirements and prohibitions and recapture provisions. ............................... 39.10-1

Decision makers, notifications, and additional information. ............................................ 39.4-1

Definitions......................................................................................................................... 39.2-1

Hearings. ........................................................................................................................... 39.9-1

Line item adjustment to grants. ......................................................................................... 39.7-1

Priority list. ....................................................................................................................... 39.3-1

Purpose .............................................................................................................................. 39.1-1

State or Tribal Organizations to retain control of operations. ......................................... 39.11-1

Submission of information and documents to VA. ........................................................... 39.5-1

Withdrawal of grant application. ...................................................................................... 39.8-1

Subpart B—Establishment, Expansion, and Improvement Projects

Amount of grant. ............................................................................................................. 39.50-1

Application requirements. ............................................................................................... 39.34-1

Architectural design standards. ....................................................................................... 39.63-1

Conferences. .................................................................................................................... 39.33-1

Final review and approval of application. ....................................................................... 39.35-1

General requirements for a grant..................................................................................... 39.30-1

General requirements for site selection and construction of veterans cemeteries........... 39.60-1

Payment of grant award. ................................................................................................. 39.51-1

Plan preparation. ............................................................................................................. 39.32-1

Preapplication requirements. ........................................................................................... 39.31-1

Site planning standards. .................................................................................................. 39.61-1

Space criteria for support facilities. ................................................................................ 39.62-1

Subpart C—Operation and Maintenance Projects

Amount of grant. ........................................................................................................... 39.100-1

Application requirements. ............................................................................................... 39.84-1


(No. 135 3/5/19)

Conferences. .................................................................................................................... 39.83-1

Final review and approval of application. ....................................................................... 39.85-1

General requirements for a grant..................................................................................... 39.80-1

Payment of grant award. ............................................................................................... 39.101-1

Plan preparation. ............................................................................................................. 39.82-1

Preapplication requirements. ........................................................................................... 39.81-1

Subpart D—Grant Recipient Responsibilities, Inspections, and

Reports Following Project Completion

Documentation of grant accomplishments. ................................................................... 39.120-1

Inspections, audits, and reports ..................................................................................... 39.122-1

State or Tribal Organization responsibilities following project completion. ................ 39.121-1

☼

39.10-1 §39.10—Cemetery requirements and prohibitions and recapture provisions 39.10-1

(No. 135 3/5/19)

§39.10 Cemetery requirements and prohibitions and recapture provisions.

(a) In order to qualify for a grant, a State or Tribal veterans cemetery must be operated

solely for the interment of veterans, their spouses, surviving spouses, minor children, unmarried

adult children who were physically or mentally disabled and incapable of self-support, and

eligible parents of certain deceased service members.

(b) Any grant under this part made on or after November 21, 1997, is made on the

condition that, after the date of receipt of the grant, the State or Tribal Organization receiving the

grant, subject to requirements for receipt of notice in 38 U.S.C. 2408 and 2411, will prohibit in

the cemetery for which the grant is awarded the interment of the remains or the memorialization

of any person:

(1) Who has been convicted of a Federal capital crime, as defined in 38 CFR

38.600(b), and whose conviction is final, other than a person whose sentence was commuted by

the President;

(2) Who has been convicted of a State capital crime, as defined in 38 CFR

38.600(b), and whose conviction is final, other than a person whose sentence was commuted by

the Governor of a State.

(3) Who has been found by an appropriate State official, as defined in 38 CFR

38.600(b), under procedures to be established by the State, to have committed a Federal or State

capital crime, as defined in 38 CFR 38.600(b), but to have not been convicted of such crime by

reason of unavailability for trial due to death or flight to avoid prosecution.

(4) Who has been convicted of a Federal or State crime causing the person to be a

tier III sex offender for purposes of the Sex Offender Registration and Notification Act (34

U.S.C. 20901, et seq.); who, for such crime, is sentenced to a minimum of life imprisonment; and

whose conviction is final (other than a person whose sentence was commuted by the President or

Governor of a State).

(c) If a State or Tribal Organization which has received a grant under this part ceases to

own the cemetery for which the grant was made, ceases to operate such cemetery as a veterans

cemetery in accordance with paragraph (a) of this section, violates the prohibition in paragraph

(b) of this section, or uses any part of the funds provided through such grant for a purpose other

than that for which the grant was made, the United States shall be entitled to recover from the

State or Tribal Organization the total of all grants made to the State or Tribal Organization under

this part in connection with such cemetery.

(d) If, within 3 years after VA has certified to the Department of the Treasury an

approved grant application, not all funds from the grant have been used by the State or Tribal

Organization for the purpose for which the grant was made, the United States shall be entitled to

recover any unused grant funds from the State or Tribal Organization.

[75 FR 34006, June 16, 2010, as amended at 77 FR 4473, Jan. 30, 2012; 84 FR 5955,

Feb. 25, 2019]

Supplement Highlights References: 104(1), 135(2).

39.11-1 §39.11— State or Tribal Organization to retain control of operations 39.11-1

(No. 104 3/5/12)

§39.11 State or Tribal Organization to retain control of operations.

Neither the Secretary nor any employee of VA shall exercise any supervision or control

over the administration, personnel, maintenance, or operation of any State or Tribal veterans

cemetery that receives a grant under this program except as prescribed in this part.

(Authority: 38 U.S.C. 501, 2408)

[75 FR 34007, June 16, 2010, as amended at 77 FR 4474, Jan. 30, 2012]

Supplement Highlights Reference: 104(1).

this is supplemental material for book a of your set of

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