[Federal Register Volume 66, Number 205 (Tuesday, October 23, 2001)]
[Proposed Rules]
[Pages 53565-53566]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-26558]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AK18


Finality of Decisions

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: This document proposes to amend the adjudication regulation 
concerning finality of the decisions made by the Department of Veterans 
Affairs (VA). The intended effect of this amendment is to present the 
existing regulation in ``plain language''.

DATES: Comments must be received on or before December 24, 2001.

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; or fax comments to 
(202) 273-9289; or e-mail comments to [email protected]. 
Comments should indicate that they are submitted in response to ``RIN 
2900-AK18''. All comments received will be available for public 
inspection in the Office of Regulations Management, Room 1158, between 
the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday (except 
holidays).

FOR FURTHER INFORMATION CONTACT: Bob White, Team Leader, Plain Language 
Regulations Project, Veterans Benefits Administration, 810 Vermont 
Avenue, NW, Washington, DC, 20420, telephone (202) 273-7228. This is 
not a toll-free number.

SUPPLEMENTARY INFORMATION: VA proposes to rewrite 38 CFR 3.104 in plain 
language. This regulation explains how a decision made by one VA field 
office affects other field offices as well as the VA Insurance Center. 
There is also a discussion of the circumstances under which VA may 
change a decision. The current regulation is located in subpart A of 
part 3. We propose to create new Sec. 3.2120 to restate the current 
regulation. The new section would be located in subpart D, Universal 
Adjudication Rules that Apply to Benefit Claims Governed by part 3 of 
This Title.
    Paragraph (a) of proposed new Sec. 3.2120 informs claimants that 
when a Veterans Service Center makes a decision, the claimant is 
informed and given appeal rights. That decision is then binding on all 
other Veterans Service Centers. There are three exceptions to this 
general rule. The specific conditions under which a decision can be 
changed, based on the same evidence, are listed in paragraphs (a)(1) 
through (a)(3). Paragraphs (a)(1) and (a)(2) are restatements of the 
exceptions currently found in Sec. 3.104(a). Paragraph (a)(3) 
incorporates new Sec. 3.2600, Review of benefit claims decisions.
    Proposed paragraph (b) of new Sec. 3.2120 lists types of VA 
decisions that are made by both Veterans Service Centers and the VA 
Insurance Center. For clarity, we have added some examples of 
``domestic relations'' issues. It explains that a decision by one 
Center is binding on the other Centers, as long as the facts of the 
case have not changed, and the instructions and criteria used to make 
the decision have not changed. The only exception is if VA determines 
the decision was based on a clear and unmistakable error, since VA will 
revise such decisions. This is a restatement of Sec. 3.104(b).
    This rulemaking reflects VA's goal of making government more 
responsive, accessible, and comprehensible to the public. The Plain 
Language Regulations Project was developed as a long-term comprehensive 
project to reorganize and rewrite in plain language the

[[Page 53566]]

adjudication regulations in part 3 of title 38, Code of Federal 
Regulations. This proposed rule is part of a series of proposed 
revisions to those regulations.

Unfunded Mandates

    The Unfunded Mandates Reform Act, Public Law 104-4, March 22, 1995, 
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 the 
aggregate, or by the private sector of $100 million or more in any 
given year. This proposed rule will have no consequential effect on 
State, local, or tribal governments.

Paperwork Reduction Act

    This document contains no provisions constituting a collection of 
information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

Regulatory Flexibility Act

    The Secretary certifies that the adoption of the 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. This proposed rule does not directly affect any small 
entities. Only VA beneficiaries could be directly affected. Therefore, 
pursuant to 5 U.S.C. 605(b), this amendment is 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 for this 
proposal are 64.100, 64.101, 64.104, 64.105, 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: October 12, 2001.
Anthony J. Principi,
Secretary of Veterans Affairs.
    For the reasons set forth in the preamble, VA proposes to amend 38 
CFR part 3 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.


Sec. 3.104  [Removed]

    2. Section 3.104 is removed.

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

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

    Authority: 38 U.S.C. 501(a), unless otherwise noted.
    4. New Sec. 3.2120 is added to read as follows:


Sec. 3.2120  When do VA benefit decisions become binding?

    (a) When a claim is decided, and the Veterans Service Center sends 
the claimant written notification of that decision along with 
information about appeal rights, the decision is binding on all 
Veterans Service Centers and cannot be changed, based on the evidence 
in file at the time the Center notified the claimant, except:
    (1) Through an appellate decision by the Board of Veterans' 
Appeals, the U.S. Court of Appeals for Veterans Claims, the U.S. Court 
of Appeals for the Federal Circuit, or the U.S. Supreme Court; or
    (2) Under Sec. 3.105, Revision of decisions; or
    (3) Under Sec. 3.2600, Review of benefit claims decisions.

(Authority: 38 U.S.C. 502, 511, 5104, 5109A)

    (b) Types of decisions made by both Veterans Service Centers and 
the Insurance Center are listed in paragraphs (b)(1) through (b)(7) of 
this section. A decision of a Veterans Service Center or the Insurance 
Center on one of these issues is binding on all other Centers, unless 
the decision was the result of clear and unmistakable error. Absent 
such error, the issues decided cannot be reconsidered by a Veterans 
Service Center or the Insurance Center, if the later decision would 
require application of the same instructions or criteria and would be 
based on the same facts. The types of issues to which this paragraph 
(b) applies are:
    (1) Line of duty;
    (2) Character of discharge;
    (3) Relationship;
    (4) Dependency;
    (5) Domestic relations issues such as marriage, divorce, adoption 
and child custody and support;
    (6) Homicide; and
    (7) Findings of fact of death or presumption of death.

(Authority: 38 U.S.C. 511)

[FR Doc. 01-26558 Filed 10-22-01; 8:45 am]
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