[Federal Register Volume 67, Number 147 (Wednesday, July 31, 2002)]
[Proposed Rules]
[Pages 49646-49647]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-19327]



[[Page 49646]]

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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AK24


Testimony Certified or Under Oath

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its 
adjudication regulation that requires written and oral testimony to be 
certified or given under oath or affirmation in most cases. VA believes 
that the global requirements in this regulation are no longer necessary 
to establish the credibility of most testimony offered in support of a 
claim for benefits. Removal of this regulation will help to streamline 
the claims process without affecting program integrity.

DATES: Comments must be received on or before September 30, 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; 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-AK24''. All comments received will be available for public 
inspection in the Office of Regulations Management, Room 1158, between 
the hours of 8 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: The current regulation on testimony is found 
at 38 CFR 3.200. It provides that all oral testimony be given under 
oath or affirmation and that all written testimony submitted in support 
of a claim for service connection of a disability or death be certified 
or given under oath or affirmation. Oddly, the regulation does not 
require that written testimony submitted in connection with a claim for 
disability or death pension be certified or given under oath or 
affirmation. The need for this regulation is now being called into 
question because of recent changes in the claims process which 
streamline the acceptance of evidence and require an assessment of 
credibility in all cases.
    The current regulation was created at a time when VA required all 
evidence and testimony to be in writing or presented orally at a 
personal hearing. It has changed very little in the last 40 years. But 
the Veterans Benefits Administration (VBA) is now accepting evidence by 
fax, e-mail and telephone in addition to written and oral testimony in 
an effort to streamline the claims process. Any attempt to require 
formal certification in such cases would only delay the decision making 
process.
    When deciding a claim for disability or death benefits, VBA 
decision makers routinely make assessments of credibility with respect 
to evidence presented in support of the claim. This is true regardless 
of whether any written or oral testimony was certified or given under 
oath or affirmation. Since these credibility assessments are routinely 
made, it is unnecessary to require certification or the swearing of 
oaths or affirmations in all cases. This does not mean that claimants 
cannot submit certified written testimony or swear oaths or 
affirmations in connection with oral testimony. Indeed, a claimant may 
believe that such certification or swearing increases the degree of 
credibility that may be assigned by a decision maker. For this reason 
VBA will not prohibit swearing or certification. It will just no longer 
require it in all cases.
    Although the global requirement is being removed, there are other 
regulations in part 3 which require sworn testimony or certification of 
evidence in specific instances (see for example Sec. 3.103(c)(2) 
concerning sworn testimony at personal hearings). The regulations 
covering those specific instances are not being removed or amended by 
this proposed action and will remain in effect.
    VBA believes that the burden imposed upon claimants for benefits, 
as well as the administrative burden imposed upon VA itself, entailed 
by a requirement that claimants swear to oral evidence, or that they 
certify all written statements, in support of an entitlement to 
benefits, is too great to justify its retention-especially where 
evidence is transmitted over the telephone or fax machine. In light of 
the fact that VA will still retain the ability to discover and deal 
with fraudulently given statements, the burden of administration 
outweighs the benefit of retention in this case. In contrast, the 
burden of administering an oath at an already-convened Regional Office 
(RO) hearing is minimal, in comparison with the benefit achieved 
through formally impressing on the witness the need for truthfulness.
    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 adjudication 
regulations in part 3 of title 38, Code of Federal Regulations. This 
proposed removal 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) agencies to assess 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 proposal 
would 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 this proposal 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 proposal 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, 64.100, and 
64.127.

List of Subjects in 38 CFR Part 3

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

    Approved: June 26, 2002.
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:

[[Page 49647]]

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. 3.200  [Removed]

    2. Section 3.200 is removed.

[FR Doc. 02-19327 Filed 7-30-02; 8:45 am]
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