[Federal Register Volume 68, Number 177 (Friday, September 12, 2003)]
[Rules and Regulations]
[Pages 53682-53684]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-23261]


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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: Final rule.

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

DATES: Effective Date: September 12, 2003.

FOR FURTHER INFORMATION CONTACT: Steven L. Keller, Senior Deputy Vice 
Chairman, Board of Veterans' Appeals (012), Department of Veterans 
Affairs, 810 Vermont Avenue, NW., Washington, DC 20420 (202-565-5978).

SUPPLEMENTARY INFORMATION: The Board of Veterans' Appeals (Board) is an 
administrative body that decides appeals from denials of claims for 
veterans' benefits. An agency of original jurisdiction (AOJ), typically 
one of the Department of Veterans Affairs (VA)'s 57 regional offices, 
makes the initial decision on the claim. A claimant who is dissatisfied 
with an AOJ's decision may appeal to the Board. The Board's 55 Members 
decide about 35,000 to 40,000 cases per year.
    Generally, the law requires that the Board consider and decide 
appeals in the order in which they were filed. 38 U.S.C. 7107(a). 
However, the law also permits the Board, on motion, to advance cases 
for earlier consideration and determination under certain circumstances 
such as serious illness, severe financial hardship, and other 
sufficient cause shown. 38 U.S.C. 7107(a)(2). VA's implementing 
regulation, 38 CFR 20.900(c), currently specifies that ``other 
sufficient cause'' includes ``administrative error resulting in a 
significant delay in docketing the case.''
    On June 12, 2002, VA published a proposed rule with request for 
comments, which would amend the Board of Veterans' Appeals Rule of 
Practice 900(c) (38 CFR 20.900(c)) to provide that a case may be 
advanced on the Board's docket because of the appellant's advanced age, 
defined as 75 or more years old. 67 FR 40255. The purpose of the 
proposed rule is to speed the appellate process for the cohort of aging 
veterans.
    We received comments from seven individuals. The commenters urged 
VA to either amend or rescind the rule. Their concerns fell into three 
categories: (1) The ineffectiveness of defining ``advanced age'' as 75 
or more years of age in advancing the claims of older veterans; (2) a 
conflict with the instructions set forth by the Secretary of Veterans 
Affairs on expediting, at VA's regional offices, the claims of older 
veterans; and (3) the inequality of allowing one case to be advanced 
over another.
    We will address these concerns in turn.
    1. The ineffectiveness of defining ``advanced age'' as 75 years or 
older in advancing the claims of older veterans. One commenter argued 
that an individual who met the requirements of the proposed rule for 
advanced age, 75 or more years of age, would ``likely have died by the 
time the case runs its course.'' The commenter asserted that a claim 
remanded by the Board to the AOJ often remained active for another 
three to five years, and that a case appealed to the United States 
Court of Appeals for Veterans Claims takes 12 to 18 months to 
adjudicate. The commenter suggested lowering the threshold for 
``advanced age'' from 75 to 70 years.
    In the proposed rule, we explained our reasons for defining 
``advanced age'' as 75 or more years of age. We seek to strike a 
balance between the statutory command that the Board consider appeals 
in docket order and the need to move some cases to the front of the 
line. We observed that approximately 18 percent of the total veteran 
population is age 75 or older whereas 27 percent of the veteran 
population is age 70 or over, and that 75 is also an age at which a 
veteran is very near to his or her life expectancy. 67 FR at 40255-56.
    In sum, 75 or more years of age represents a segment of the veteran 
population large enough to provide meaningful relief, but not so large 
as to dilute the general rule of ``first come, first served.'' We have 
made no changes based on this comment.
    2. A conflict with the instructions set forth by the Secretary of 
Veterans Affairs on expediting, at VA's regional offices, the claims of 
older veterans. One commenter asserted that defining ``advanced age'' 
as 75 or more years of age is in conflict with the Secretary's plan to 
expedite the processing of claims filed by older veterans. The 
commenter contended that the proposed rule does not show the same level 
of concern and stated that there should be uniformity in the way VA 
handles the cases of older veterans.
    There are, however, significant differences between the factors 
facing the regional offices and the factors facing the Board.
    In November 2001, the Secretary formed a ``Tiger Team'' at the 
Cleveland Regional Office for the purpose of processing the oldest 
claims in the Veterans Benefits Administration (VBA) and to focus on 
claims from veterans age 70 and older that had been pending over one 
year. Under Secretary for Benefits Daniel L. Cooper, Statement before 
the House Committee on Veterans' Affairs Subcommittee on Benefits (June 
6, 2002) (transcript available at http://www.va.gov/OCA/testimony/06je0220_usa.htm). The emphasis was to process the claims of World War 
II and Korean War veterans whose claims were ``mired in the system.'' 
Id.
    The problem experienced by VBA is an increasing inventory of cases 
`` original, reopened, and remanded--waiting for a decision and the 
lengthening time it takes to render a decision. The number of regional 
office cases awaiting decision in 2001 was nearly double that awaiting 
decision in 1996. 2003 Budget of the President, Department of Veterans 
Affairs at 281, available at http://www.whitehouse.gov/omb/budget/fy2003/pdf/bud23.pdf. By the end of 2001, claims awaiting decision 
exceeded 640,000. Id. VA projected that in 2002 it would take VBA in 
excess of 200 days to process a disability compensation claim. Id. at 
282. In contrast, the Board has experienced neither an increased 
inventory nor any significant increase in the number of days it takes 
to adjudicate an appeal.

[[Page 53683]]

    Further, this rule deals with appeals before the Board, rather than 
with claims at regional offices. The rule simply recognizes that it 
would be worthwhile to give the possibility of priority to appellants 
who statistically may not be with us much longer. Finally, the 
Secretary has approved this amendment. Any conflict between the 
proposed rule and the priorities of the Secretary has been resolved. No 
changes have been made based on this comment.
    3. The inequality of allowing one case to be advanced over another. 
One commenter asserted that all veterans' claims should be processed 
quickly, and that no claim should be advanced on the docket over 
another. Another commenter argued that the proposed rule fails to take 
into consideration the negative effect of advancing one case over 
another. The commenter felt allowing one claim to advance over another 
was fundamentally unfair.
    As noted above, 38 U.S.C. 7107 provides us with the statutory 
authority to advance a case on the Board's docket. Further, the number 
of exceptions to the general rule of ``first come, first served'' has 
been kept to a minimum. By defining ``advanced age'' as 75 or more 
years old, the narrow application of the advance on docket exception 
remains intact. We therefore make no change based on these comments.
    A need for clarification of the proposed rule has become apparent. 
As proposed, the rule could be interpreted to require the Board to 
advance a case on the docket if the appellant has reached ``advanced 
age,'' in the absence of a motion of a party to the case or the party's 
representative. VA does not intend such an interpretation. Rather, VA 
intends to permit the Board to advance such a case on the motion of the 
Chairman or Vice Chairman, but not require the Board to advance the 
case in the absence of a motion of a party to the case or the party's 
representative. Accordingly, we have added a sentence to Sec.  
20.900(c) to clarify that intent. The resulting paragraph (c) is so 
long that, for clarity and readability, we have divided it into three 
paragraphs separately addressing grounds for advancement on the docket, 
the requirements for a motion to advance, and disposition of such 
motions. If a party to the case moves for advancement and sufficient 
cause is shown, the Board will advance the case on the docket.
    Based on the rationale set forth in the proposed rule and in this 
document, we are adopting the provisions of the proposed rule revised 
as described.

Administrative Procedure Act

    This final rule is effective on the date of publication. The 30-day 
delayed effective date required under the Administrative Procedure Act 
(APA) is inapplicable pursuant to 5 U.S.C. 553(d)(1), which excepts 
from the delayed-effective-date requirement a substantive rule that 
``grants or recognizes an exemption or relieves a restriction.'' The 
amendment adopted in this final rule permits a case to be advanced on 
the Board's docket because of an appellant's advanced age, which grants 
an exception from the rule that normally requires the Board to consider 
and decide appeals in the order in which they were filed. Consequently, 
the amendment in this final rule meets the requirements for exception 
set forth in the APA.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 202) requires 
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 final rule would 
have no such effect on State, local, or tribal governments, or the 
private sector.

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. Only VA beneficiaries could be directly affected. Therefore, 
pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial 
and final regulatory flexibility analysis requirements of sections 603 
and 604.

Paperwork Reduction Act

    The Secretary hereby certifies that this final rule contains no 
provisions constituting a collection of information under the Paperwork 
Reduction Act (44 U.S.C. 3501-3521).

List of Subjects in 38 CFR Part 20

    Administrative practice and procedure; Claims; Veterans.

    Dated: Approved: July 2, 2003.
Anthony J. Principi,
Secretary of Veterans Affairs.

0
For the reasons set out in the preamble 33 CFR part 20 is amended as 
set forth below.

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

0
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

0
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. (1) Grounds for advancement. 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. This paragraph does not require the Board to 
advance a case on the docket in the absence of a motion of a party to 
the case or the party's representative.
    (2) Requirements for motions. Motions for advancement on the docket 
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.
    (3) Disposition of motions. 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

[[Page 53684]]

be noted in the Board's decision when rendered.
* * * * *
(Authority: 38 U.S.C. 7107, Pub. L. 103-446, Sec. 302)

[FR Doc. 03-23261 Filed 9-11-03; 8:45 am]
BILLING CODE 8320-01-U