(a) Notification.

(1) The Board must notify the appellant and his or her representative in writing in the event the Board discovers that a Board hearing has not been recorded in whole or in part due to equipment failure or other cause, or the official transcript of the hearing is lost or destroyed and the recording upon which it was based is no longer available. The notice must provide the appellant with a choice of either of the following options:

(i) Appear at a new Board hearing, pursuant to Rules 703 and 704 (§§20.703 and 20.704) for appeals or Rules 602 and 603 (§§20.602 and 20.603) for legacy appeals, as defined in §19.2 of this chapter; or

(ii) Have the Board proceed to appellate review of the appeal based on the evidence of record.

(2) The notice will inform the appellant that he or she has a period of 30 days to respond to the notice. If the appellant does not respond by requesting a new hearing within 30 days from the date of the mailing of the notice, then the Board will decide the appeal on the basis of the evidence of record. A request for a new Board hearing will not be accepted once the Board has issued a decision on the appeal.

(b) Board decision issued prior to a loss of the recording or transcript. The Board will not accept a request for a new Board hearing under this section if a Board decision was issued on an appeal prior to the loss of the recording or transcript of a Board hearing, and the Board decision considered testimony provided at that Board hearing.

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

[84 FR 188, Jan. 18, 2019]