[Federal Register Volume 66, Number 232 (Monday, December 3, 2001)]
[Rules and Regulations]
[Pages 60152-60153]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-29844]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 20

RIN 2900-AJ73


Board of Veterans' Appeals: Rules of Practice--Notice of Appeal 
in Simultaneously Contested Claim

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Board of Veterans' Appeals (Board) adjudicates appeals 
from denials of claims for veterans' benefits filed with the Department 
of Veterans Affairs (VA). This document amends a Board Rule of 
Practice, pertaining to a type of notice given in simultaneously 
contested claim appeals, to eliminate an inconsistency between that 
Rule of Practice and an Appeals Regulation and to update a presumption 
related to communication of the notice.

DATES: Effective Date: January 2, 2002.

FOR FURTHER INFORMATION CONTACT: Steven L. Keller, Senior Deputy Vice 
Chairman, Board of Veterans' Appeals, Department of Veterans Affairs, 
810 Vermont Avenue, NW., Washington, DC 20420 (202-565-5978).

SUPPLEMENTARY INFORMATION: In a document published in the Federal 
Register on October 1, 1999 (64 FR 53302), we proposed to amend the 
Board's Rules of Practice to reconcile conflicting regulatory 
requirements in 38 CFR 19.102 and 38 CFR 20.502 concerning the 
information provided to other parties to a contested claim about the 
appeal of a contesting party. We also proposed to change a presumption 
concerning the date of furnishing this information .
    The only comment that we received raised an objection concerning 
the presumption. As proposed, the rule would provide a presumption that 
information about the content of one contesting party's Substantive 
Appeal was furnished to other contesting parties on the date of the 
letter from VA that accompanies the information. The date the 
information is furnished is important because it begins a statutory 30-
day time limit for filing a brief or argument in response to a 
Substantive Appeal.
    A national veterans' service organization recommended that the time 
limit for filing the response begin to run on the date of mailing the 
information, stating that the ``proposed rule does not take into 
consideration the time delay of placing mail within the internal mail 
system of the Department.'' In the alternative, the organization 
suggested that the rule require that the information and letter be 
placed ``directly into the U.S. mail system.''
    The presumption in this rule has been based on the date of the 
letter for a number of years and the proposed rule would not change 
that. It merely would establish the presumption that the information 
was furnished on the date of the letter, as opposed to the previous 
presumption that the information was mailed on the date of the letter. 
The change was proposed specifically to remove the presumption's tie to 
mailing, inasmuch as the means of communication is not limited to 
mailing by regulation or statute. The applicable statute, 38 U.S.C. 
7105A, merely requires that notice of the substance of the appeal be 
``communicated to the other party or parties in interest'' by

[[Page 60153]]

``forward[ing] to the last known address of record.'' VA does not 
believe that it is prudent to unduly limit flexibility by foreclosing 
every means of communication other than mailing, as would result from 
adoption of the commenter's suggestion.
    Presumptions are useful because they serve to establish critical 
facts when there is no contrary evidence. VA considers the proposed 
presumption ``rebuttable.'' If the information is furnished by mail and 
the date of the letter and the date of mailing do not actually match in 
a particular case, a party may easily rebut the presumption by 
submitting a copy of the postmarked envelope. The presumption may be 
rebutted in other cases by other appropriate evidence, depending on the 
means by which the information was furnished.
    For the reasons stated in this document and in the preamble to the 
proposed rule, VA is adopting the rule as proposed, except for a 
nonsubstantive grammatical change.

Regulatory Flexibility Act

    The Secretary hereby certifies that this final rule will 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 rule may affect individual claimants for VA benefits and will 
not affect small businesses. Therefore, pursuant to 5 U.S.C. 605(b), 
this final rule is exempt from the initial and final regulatory 
flexibility analyses requirement of sections 603 and 604.

Paperwork Reduction Act

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

Unfunded Mandates

    The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, 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 rule would have no 
consequential effect on State, local, or tribal governments.

List of Subjects in 38 CFR Part 20

    Administrative practice and procedure, Claims, Lawyers, Legal 
services, Veterans.

    Approved: November 26, 2001.
Anthony J. Principi,
Secretary of Veterans Affairs.

    For the reasons set out in the preamble, amend 38 CFR part 20 as 
follows:

PART 20--BOARD OF VETERANS' APPEALS: RULES OF PRACTICE

    1. The authority citation for part 20 continues to read as follows:

    Authority: 38 U.S.C. 501(a) and as noted in specific sections.

    2. Revise Sec. 20.502 to read as follows:


Sec. 20.502  Rule 502. Time limit for response to appeal by another 
contesting party in a simultaneously contested claim.

    A party to a simultaneously contested claim may file a brief or 
argument in answer to a Substantive Appeal filed by another contesting 
party. Any such brief or argument must be filed with the agency of 
original jurisdiction within 30 days from the date the content of the 
Substantive Appeal is furnished as provided in Sec. 19.102 of this 
chapter. Such content will be presumed to have been furnished on the 
date of the letter that accompanies the content.

(Authority: 38 U.S.C. 7105A(b))

[FR Doc. 01-29844 Filed 11-30-01; 8:45 am]
BILLING CODE 8320-01-P