[Federal Register Volume 67, Number 113 (Wednesday, June 12, 2002)]
[Proposed Rules]
[Pages 40255-40256]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-14685]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 20

RIN 2900-AL08


Board of Veterans' Appeals: Speeding Appellate Review for Aging 
Veterans

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs proposes amending the Rules 
of Practice of the Board of Veterans' Appeals (Board) to provide that a 
case may be advanced on the Board's docket because of the appellant's 
advanced age. This change is necessary to speed the appellate process 
for the large group of aging veterans.

DATES: Comments must be received on or before August 12, 2002.

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. Fax comments to: 
(202) 273-9289. E-mail comments to: [email protected]. 
Comments should indicate that they are submitted in response to ``RIN 
2900-AL08.'' All comments received will be available for public 
inspection in the Office of Regulations Management, Room 1158, between 
8 a.m. and 4:30 p.m., Monday through Friday (except holidays).

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

SUPPLEMENTARY INFORMATION: The Board of Veterans' Appeals (Board) is 
the component of the Department of Veterans Affairs (VA) in Washington, 
DC, that decides appeals from denials of claims for veterans' benefits. 
An agency of original jurisdiction (AOJ), typically one of VA's 58 
regional offices, makes the initial decision on a claim. A claimant who 
is dissatisfied with an AOJ's decision may appeal to the Board.
    America owes a great debt to its military service veterans. They 
defended our nation in times of war and kept watch in times of peace to 
keep new crises from developing. Unfortunately, our nation is now 
losing large numbers of these veterans each year. Barely 2,000 of the 
almost 5 million men and women who served in World War I and one-third 
of the 16 million who served in World War II still survive. Even a 
number of Korean War veterans are now in their seventies. Among all 
veterans, approximately 18% are age 75 or older. Twenty-seven percent 
of the veteran population is aged 70 or over. See ``Veteran Data & 
Information'' <http://www.va.gov/vetdata/Demograhics/VPwelcome.htm. (Note: ``Demograhics'' is the spelling used 
at the site.) In 1995, a person who reaches age 65 in the United States 
has an average life expectancy of 17 years. ``Sixty-Five Plus in the 
United States'' at 1, SB/95-8, U.S. Department of Commerce, Economics 
and Statistics Administration, Bureau of the Census (May 1995), 
available at http://www.census.gov/apsd/www/statbrief/sb95_8.pdf.
    The process of obtaining veterans benefits can be protracted, 
particularly where benefits are initially denied and that denial is 
appealed up through VA's administrative appeal process and beyond into 
the judicial system. The claims adjudication and appellate systems 
provide a myriad of procedural protections which, added together, take 
a great deal of time to work through. Further, the appellate process 
normally functions on a ``first come, first served'' basis. The law 
requires that the Board consider and decide each appeal ``in regular 
order according to its place upon the docket.'' 38 U.S.C. 7107(a). 
While this is normally a just and orderly approach, we are concerned 
that aging veterans may not survive to see it through to the end. The 
same is true of

[[Page 40256]]

other aging appellants, such as the surviving spouses of deceased 
veterans.
    Fortunately, the law also permits the Board, on motion, to advance 
cases for earlier consideration and determination under certain 
circumstances, including serious illness, severe financial hardship, 
and ``other sufficient cause shown.'' 38 U.S.C. 7107(a)(2). Because of 
the large numbers of appeals--on average, the Board receives 35,000-
40,000 per year--the Board has taken a restrictive view of its 
authority to advance cases on the docket. The implementing regulation, 
at 38 CFR 20.900(c), currently specifies that ``other sufficient 
cause'' includes ``administrative error resulting in a significant 
delay in docketing the case.''
    Given the age of our veteran population, we propose expanding this 
provision to permit advancement for earlier consideration by the Board 
because of the appellant's advanced age. For this limited purpose, VA 
proposes defining ``advanced age'' as 75 or more years of age. We chose 
age 75 for three reasons: First, it is an age at which a veteran is 
very near to his or her life expectancy. Second, it represents a 
segment of the veteran population--18%--large enough to provide 
meaningful relief, but not so large as to dilute the general rule of 
first come, first served. Third, the other bases for advancement on the 
docket in Sec. 20.900(c), illness and financial hardship, adequately 
cover other exigent circumstances.
    As with most other bases for advancing on the docket, we intend to 
rely primarily on motions filed by appellants and their representatives 
to alert the Board to situations where advancement based on advanced 
age would be appropriate. (Approximately 90% of appellants have 
representatives.) As the regulation defines ``advanced age'' (75 years) 
as good cause for advancement, all such motions should be granted. 
However, we welcome any comments from the public as to how best to 
implement this authority.

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).

Executive Order 12866

    This document has been reviewed by the Office of Management and 
Budget under Executive Order 12866.

Regulatory Flexibility Act

    The Secretary hereby certifies that this regulatory amendment 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 affects only individuals. Therefore, pursuant 
to 5 U.S.C. 605(b), this regulatory amendment is exempt from the 
initial and final regulatory flexibility analysis requirements of 
sections 603 and 604.

List of Subjects in 38 CFR Part 20

    Administrative practice and procedure, Claims, Veterans.

    Approved: February 27, 2002.
Anthony J. Principi,
Secretary of Veterans Affairs.

    For the reasons stated in the preamble, VA proposes to 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.

Subpart J--Action by the Board

    2. Section 20.900(c) is revised to read as follows:


Sec. 20.900  Rule 900. Order of consideration of appeals.

* * * * *
    (c) Advancement on the docket. A case may be advanced on the docket 
on the motion of the Chairman, the Vice Chairman, a party to the case 
before the Board, or such party's representative. Such a motion may be 
granted only if the case involves interpretation of law of general 
application affecting other claims, if the appellant is seriously ill 
or is under severe financial hardship, or if other sufficient cause is 
shown. ``Other sufficient cause'' shall include, but is not limited to, 
administrative error resulting in a significant delay in docketing the 
case or the advanced age of the appellant. For purposes of this Rule, 
``advanced age'' is defined as 75 or more years of age. Such motions 
must be in writing and must identify the specific reason(s) why 
advancement on the docket is sought, the name of the veteran, the name 
of the appellant if other than the veteran (e.g., a veteran's survivor, 
a guardian, or a fiduciary appointed to receive VA benefits on an 
individual's behalf), and the applicable Department of Veterans Affairs 
file number. The motion must be filed with: Director, Administrative 
Service (014), Board of Veterans' Appeals, 810 Vermont Avenue, NW, 
Washington, DC 20420. If a motion is received prior to the assignment 
of the case to an individual member or panel of members, the ruling on 
the motion will be by the Vice Chairman, who may delegate such 
authority to a Deputy Vice Chairman. If a motion to advance a case on 
the docket is denied, the appellant and his or her representative will 
be immediately notified. If the motion to advance a case on the docket 
is granted, that fact will be noted in the Board's decision when 
rendered.
* * * * *
    (Authority: 38 U.S.C. 7107, Pub. L. 103-446, Sec. 302)

[FR Doc. 02-14685 Filed 6-11-02; 8:45 am]
BILLING CODE 8320-01-P