[Federal Register Volume 65, Number 34 (Friday, February 18, 2000)]
[Proposed Rules]
[Pages 8329-8330]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-3870]



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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AJ99


Review of Benefit Claims Decisions

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: This document concerns the Department of Veterans Affairs (VA) 
adjudication regulations. We are proposing new provisions to allow any 
claimants who have filed a timely Notice of Disagreement to obtain a de 
novo review of their claims at the Veterans Service Center level. We 
believe this would provide a more efficient means for resolving 
disagreements concerning claims.

DATES: Comments must be received on or before April 18, 2000.

ADDRESSES: Mail or hand-deliver written comments to: Director, Office 
of Regulations Management (02D), Department of Veterans Affairs, 810 
Vermont Ave., NW, Room 1154, Washington, DC 20420. Comments should 
indicate that they are submitted in response to ``RIN 2900-AJ99.'' All 
comments received will be available for public inspection at the above 
address in the Office of Regulations Management, Room 1158, between the 
hours of 8:00 a.m. and 4:00 p.m., Monday through Friday (except 
holidays).

FOR FURTHER INFORMATION CONTACT: Jack Bisset, Consultant, Compensation 
and Pension Service, Regulations Staff, or Bob White, Team Leader, 
Plain Language Regulations Project, Veterans Benefits Administration, 
810 Vermont Avenue, NW, Washington, DC 20420, telephone (202) 273-7213 
and (202) 273-7228, respectively (these are not toll-free numbers).

SUPPLEMENTARY INFORMATION: This document proposes to amend our 
adjudication regulations by establishing provisions at 38 CFR 3.2600 to 
allow any claimants who have filed a timely Notice of Disagreement to 
obtain a de novo review (a new and complete review with no deference 
given to the decision being reviewed) by Veterans Service Center 
personnel. The new provisions are based on the requirement in 38 U.S.C. 
7105(d)(1) that, when a claimant files a Notice of Disagreement with 
the decision of an agency of original jurisdiction, the agency will 
``take such development or review action as it deems proper under the 
provisions of regulations not inconsistent with'' title 38 of the 
United States Code. This proposed amendment would improve VA's service 
to claimants by resolving disagreements more quickly and by improving 
claimants' and their representatives' access to the person responsible 
for making the decision.
    We propose that the review be conducted by an Adjudication Officer, 
Veterans Service Center Manager, or Decision Review Officer (a new 
position within VA's Service Center), at VA's discretion. We believe 
these officials have the expertise to conduct such reviews. The review 
will be conducted by an individual who did not participate in the 
decision being reviewed. This requirement is similar to that for VA 
personnel conducting hearings under 38 CFR 3.103(c)(1). It will help 
ensure that reviews are truly de novo.
    The reviewer may conduct whatever development he or she considers 
necessary to resolve disagreements concerning decisions with which the 
claimant has expressed disagreement in the Notice of Disagreement, 
consistent with applicable law. This may include an attempt to obtain 
additional evidence or the holding of an informal conference with the 
claimant. Upon the request of the claimant, the reviewer will conduct a 
hearing under Sec. 3.103(c). We believe that such procedures will allow 
the reviewer to resolve the claim fairly and promptly, and will afford 
the claimant an opportunity to present his or her case adequately.
    These proposed provisions would apply only to decisions that both 
have not yet become final (by appellate decision or failure to timely 
appeal) and with which the claimant has disagreed. This is consistent 
with the provisions of 38 U.S.C. 7104(b), 7105(c) and 7105(d).
    The review would be based on all the evidence of record and 
applicable law. Further, the review decision would have to include a 
summary of the evidence, a citation to pertinent laws, a discussion of 
how those laws affect the decision, and a summary of the reasons for 
the decision. This would ensure that the reviewer provides a fresh look 
at the case and provides an appropriate record of the decisionmaking 
process.
    Moreover, the reviewer would be authorized to grant a benefit 
sought in the claim, but would not be authorized to revise the decision 
in a manner that is less advantageous to the claimant than the decision 
under review. This will ensure that the claimant is not penalized for 
seeking a review. However, the reviewer would have the authority to 
reverse or revise any decision of the agency of original jurisdiction 
(including the decision being reviewed or any prior decision that has 
become final due to failure to timely appeal) on the grounds of clear 
and unmistakable error, even if disadvantageous to the claimant. All 
Service Center decisionmakers already have this authority (see 38 CFR 
3.105(a)). This new delegation of authority would be consistent with 38 
U.S.C. 5109A.
    The proposal provides that, upon receipt of a Notice of 
Disagreement, VA would notify the claimant in writing of his or her 
right to a review. To obtain such a review, the claimant would have to 
request it within 60 days of the date VA mails the notice. Written 
notification would ensure that VA would have a record of its 
notification, and the 60-day period would provide sufficient time for 
the claimant to determine whether he or she wants this review.
    The proposal also provides that a claimant may not have more than 
one of these reviews of the same decision and that this review would 
not limit the appellate rights of the claimant. We believe that one 
review is sufficient to resolve those claims that can be resolved 
before proceeding with appellate review.
    Proposed Sec. 3.2600 is one of several provisions to be set forth 
in a new subpart D containing ``universal adjudication rules'' that 
would apply to claims which are governed by part 3 of title 38. This 
includes claims for benefits such as compensation, pension, dependency 
and indemnity compensation, burial benefits, and special benefits 
listed at Secs. 3.800 through 3.814. The ``universal adjudication 
rules'' would also apply to claims for eligibility determinations (such 
as character of military discharge, military duty status and dependency 
status), apportionment of benefits to dependents, and waiver of 
recovery of overpayments. Proposed new Sec. 3.2100 specifies the scope 
of applicability of the provisions in subpart D.
    We also propose to amend 38 CFR 3.105(b) (which concerns revision 
of decisions based on difference of opinion) to specify that a decision 
may be revised under Sec. 3.2600 without being recommended to Central 
Office. This clarifies that the proposed review process created by 
Sec. 3.2600 is not subject to the requirements of Sec. 3.105(b).

Unfunded Mandates

    The Unfunded Mandates Reform Act requires (in section 202) that 
agencies prepare an assessment of anticipated costs and benefits before 
developing any rule that may result in an expenditure by State, local, 
or tribal governments, in

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the aggregate, or by the private section of $100 million or more in any 
given year. This final rule will have no consequential effect on State, 
local, or tribal governments.

Regulatory Flexibility Act

    The Secretary hereby certifies that the adoption of this proposed 
rule would not have a significant economic impact on a substantial 
number of small entities as they are defined in the Regulatory 
Flexibility Act, 5 U.S.C. 601-612. The proposed rule does not directly 
affect any small entities. Only VA beneficiaries are directly affected. 
Therefore, pursuant to 5 U.S.C. 605(b), these amendments are exempt 
from the initial and final regulatory flexibility analysis requirements 
of sections 603 and 604.

Catalog of Federal Domestic Assistance Program Numbers

    The Catalog of Federal Domestic Assistance program numbers are 
64.100, 64.101, 64.104, 64.105, 64.106, 64.109, 64.110, and 64.127.

List of Subjects in 38 CFR Part 3

    Administrative practice and procedure, Claims, Disability benefits, 
Health care, Pensions, Veterans, Vietnam.

    Approved: December 21, 1999.
Togo D. West, Jr.,
Secretary of Veterans Affairs.
    For the reasons set forth in the preamble, 38 CFR part 3 is 
proposed to be amended as follows:

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity 
Compensation

    1. The authority citation for part 3, subpart A continues to read 
as follows:

    Authority: 38 U.S.C. 501(a), unless otherwise noted.

    2. In Sec. 3.105, paragraph (b) is amended by adding, as the last 
sentence, ``However, a decision may be revised under Sec. 3.2600 
without being recommended to Central Office.''
    3. A new Subpart D is added to read as follows:
Subpart D--Universal Adjudication Rules That Apply to Benefit Claims 
Governed by Part 3 of This Title

General

Sec.
3.2100   Subpart D's Scope of Applicability

Revisions

3.2600.   Review of benefit claims decisions.

Subpart D--Universal Adjudication Rules That Apply to Benefit 
Claims Governed by Part 3 of This Title

    Authority: 38 U.S.C. 501(a), unless otherwise noted.

General


Sec. 3.2100  Subpart D's Scope of Applicability.

    Unless otherwise specified, the provisions of this subpart apply 
only to claims governed by part 3 of this title.

(Authority: 38 U.S.C. 501(a))

Revisions


Sec. 3.2600  Review of benefit claims decisions.

    (a) A claimant who has filed a timely Notice of Disagreement with a 
decision of an agency of original jurisdiction on a benefit claim has a 
right to a review of that decision under this section. The review will 
be conducted by an Adjudication Officer, Veterans Service Center 
Manager, or Decision Review Officer, at VA's discretion. An individual 
who did not participate in the decision being reviewed will conduct 
this review. Only a decision that has not yet become final (by 
appellate decision or failure to timely appeal) may be reviewed. Review 
under this section will encompass only decisions with which the 
claimant has expressed disagreement in the Notice of Disagreement. The 
reviewer will consider all evidence of record and applicable law, and 
will give no deference to the decision being reviewed.
    (b) VA will notify the claimant in writing of his or her right to a 
review under this section. To obtain such a review, the claimant must 
request it within 60 days of the date VA mails the notice. A claimant 
may not have more than one review under this section of the same 
decision. This review does not limit the appellate rights of a 
claimant.
    (c) The reviewer may conduct whatever development he or she 
considers necessary to resolve any disagreements in the Notice of 
Disagreement, consistent with applicable law. This may include an 
attempt to obtain additional evidence or the holding of an informal 
conference with the claimant. Upon the request of the claimant, the 
reviewer will conduct a hearing under Sec. 3.103(c).
    (d) The reviewer may grant a benefit sought in the claim 
notwithstanding Sec. 3.105(b), but, except as provided in paragraph (e) 
of this section, may not revise the decision in a manner that is less 
advantageous to the claimant than the decision under review. A review 
decision made under this section will include a summary of the 
evidence, a citation to pertinent laws, a discussion of how those laws 
affect the decision, and a summary of the reasons for the decision.
    (e) Notwithstanding any other provisions of this section, the 
reviewer may reverse or revise (even if disadvantageous to the 
claimant) prior decisions of an agency of original jurisdiction 
(including the decision being reviewed or any prior decision that has 
become final due to failure to timely appeal) on the grounds of clear 
and unmistakable error (see Sec. 3.105(a)).

(Authority: 38 U.S.C. 5109A and 7105(d))

[FR Doc. 00-3870 Filed 2-17-00; 8:45 am]
BILLING CODE 8320-01-P