38 U.S. Code § 5104B - Higher-level review by the agency of original jurisdiction

(a) In General.—

(1) A claimant may request a review of the decision of the agency of original jurisdiction by a higher-level adjudicator within the agency of original jurisdiction.

(2) The Secretary shall approve each request for review under paragraph (1).

(b) Time and Manner of Request.—

(1) A request for higher-level review by the agency of original jurisdiction shall be—

(A) in writing in such form as the Secretary may prescribe; and

(B) made within one year of the notice of the agency of original jurisdiction’s decision.

(2) Such request may specifically indicate whether such review is requested by a higher-level adjudicator at the same office within the agency of original jurisdiction or by an adjudicator at a different office of the agency of original jurisdiction. The Secretary shall not deny such request for review by an adjudicator at a different office of the agency of original jurisdiction without good cause.

(c) Decision.—

Notice of a higher-level review decision under this section shall be provided to the claimant (and any representative of such claimant) and shall include a general statement—

(1) reflecting whether evidence was not considered pursuant to subsection (d); and

(2) noting the options available to the claimant to have the evidence described in paragraph (1), if any, considered by the Department.

(d) Evidentiary Record for Review.—

The evidentiary record before the higher-level adjudicator shall be limited to the evidence of record in the agency of original jurisdiction decision being reviewed.

(e) De Novo Review.—

A review of the decision of the agency of original jurisdiction by a higher-level adjudicator within the agency of original jurisdiction shall be de novo.

(Added Pub. L. 115–55, § 2(g)(1), Aug. 23, 2017, 131 Stat. 1107; amended Pub. L. 117–168, title VIII, § 807(a)(3), Aug. 10, 2022, 136 Stat. 1806.)

Editorial Notes

Amendments

2022—Subsec. (c). Pub. L. 117–168 substituted “to the claimant (and any representative of such claimant)” for “in writing” in introductory provisions.

Statutory Notes and Related Subsidiaries

Effective Date

Section applicable to all claims for which the Secretary of Veterans Affairs provides notice of a decision under section 5104 of this title on or after the later of 540 days after Aug. 23, 2017, or 30 days after the date on which the Secretary submits to Congress a certification of certain capabilities of the Department of Veterans Affairs to carry out the new appeals system established by Pub. L. 115–55 and to address appeals of decisions on legacy claims, with provision for early applicability of the new appeals system to certain claims, see section 2(x) of Pub. L. 115–55, set out as an Effective Date of 2017 Amendment note under section 101 of this title, and bracketed note thereunder.

Rule of Construction

Amendment by Pub. L. 117–168 not to be construed to apply section 5104(a) of this title to decisions of the Board of Veterans’ Appeals under chapter 71 of this title, see section 807(b) of Pub. L. 117–168, set out as a note under section 5100 of this title.