[Federal Register Volume 70, Number 89 (Tuesday, May 10, 2005)]
[Proposed Rules]
[Pages 24680-24691]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-9230]



[[Page 24679]]

-----------------------------------------------------------------------

Part II





Department of Veterans Affairs





-----------------------------------------------------------------------



38 CFR Part 5



Duties of VA; Rights and Responsibilities of Claimants and 
Beneficiaries; Proposed Rule

  Federal Register / Vol. 70, No. 89 / Tuesday, May 10, 2005 / Proposed 
Rules  

[[Page 24680]]


-----------------------------------------------------------------------

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 5

RIN 2900-AL82


Duties of VA; Rights and Responsibilities of Claimants and 
Beneficiaries

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Veterans Affairs (VA) proposes to reorganize 
and rewrite in plain language its disability compensation and pension 
regulations relating to the duties of VA and the rights and 
responsibilities of claimants and beneficiaries. These revisions are 
proposed as part of VA's rewrite and reorganization of all of its 
compensation and pension regulations in a logical, claimant-focused, 
and user-friendly format. The intended effect of the proposed revisions 
is to assist claimants, beneficiaries, and VA personnel in locating and 
understanding these regulations.

DATES: Comments must be received by VA on or before July 11, 2005.

ADDRESSES: Mail or hand-deliver written comments to: Director, 
Regulations Management (00REG1), Department of Veterans Affairs, 810 
Vermont Avenue, NW., Room 1068, Washington, DC 20420; or fax comments 
to (202) 273-9026; or e-mail comments to [email protected] or 
through http://www.Regulations.gov. Comments should indicate that they 
are submitted in response to ``RIN 2900-AL82.'' All comments received 
will be available for public inspection in the Office of Regulation 
Policy and Management, Room 1063B, between the hours of 8 a.m. and 4:30 
p.m., Monday through Friday (except holidays). Please call 202-273-9515 
for an appointment.

FOR FURTHER INFORMATION CONTACT: Clay Witt, Chief, Regulations Rewrite 
Project (00REG2), Department of Veterans Affairs, 810 Vermont Avenue, 
NW., Washington, DC 20420, (202) 273-9515.

SUPPLEMENTARY INFORMATION: The Secretary of Veterans Affairs has 
established an Office of Regulation Policy and Management to provide 
centralized management and coordination of VA's rulemaking process. One 
of the major functions of this office is to oversee a Regulation 
Rewrite Project (the Project) to improve the clarity and consistency of 
existing VA regulations. The Project responds to a recommendation made 
in the October 2001 ``VA Claims Processing Task Force: Report to the 
Secretary of Veterans Affairs.'' The Task Force recommended that the 
compensation and pension regulations be rewritten and reorganized in 
order to improve VA's claims adjudication process. Therefore, the 
Project began its efforts by reviewing, reorganizing and redrafting the 
content of the regulations in 38 CFR part 3 governing the compensation 
and pension program of the Veterans Benefits Administration. These 
regulations are among the most difficult VA regulations for readers to 
understand and apply.
    Once rewritten, the proposed regulations will be published in 
several portions for public review and comment. This is one such 
portion. It includes proposed rules regarding duties of VA and rights 
and responsibilities of claimants and beneficiaries. After review and 
consideration of public comments, final versions of these proposed 
regulations will ultimately be published in a new part 5 in 38 CFR.

Outline

Overview of New Part 5 Organization
Overview of Proposed Subpart C Organization
Table Comparing Current Part 3 Rules with Proposed Part 5 Rules
Content of Proposed Regulations

Rights of Claimants and Beneficiaries

    5.80 Right to representation.
    5.81 Submission of information, evidence, or argument.
    5.82 Right to a hearing.
    5.83 Right to notice of decisions and proposed adverse actions.
    5.84 Restoration of benefits following adverse action.

Duties of VA

    5.90 [Reserved]
    5.91 Medical evidence for disability claims.
    5.92 Independent medical opinions.
    5.93 Service records which are lost, destroyed, or otherwise 
unavailable.

Responsibilities of Claimants and Beneficiaries

    5.100 Time limits for claimant or beneficiary responses.
    5.101 Requirement to provide Social Security numbers.
    5.102 Meeting reexamination requirements.
    5.103 Failure to report for VA examination or reexamination.
    5.104 Certifying continuing eligibility to receive benefits.
Endnote Regarding Amendatory Language
Paperwork Reduction Act
Regulatory Flexibility Act
Executive Order 12866
Unfunded Mandates
Catalog of Federal Domestic Assistance numbers
List of Subjects in 38 CFR Part 5

Overview of New Part 5 Organization

    We plan to organize the part 5 regulations so that all provisions 
governing a specific benefit are located in the same subpart, with 
general provisions pertaining to all compensation and pension benefits 
also grouped together. We believe this organization will allow 
claimants, beneficiaries, and their representatives, as well as VA 
personnel, to find information relating to a specific benefit more 
quickly than the organization provided in current part 3.
    The first major subdivision would be ``Subpart A--General 
Provisions.'' It would include information regarding the scope of the 
regulations in new part 5, delegations of authority, general 
definitions, and general policy provisions for this part.
     ``Subpart B--Service Requirements for Veterans'' would 
include information regarding a veteran's military service, including 
minimum service requirements, types of service, periods of war, and 
service evidence requirements. This subpart was published as proposed 
on January 30, 2004. See 69 FR 4820.
     ``Subpart C--Adjudicative Process, General'' would inform 
readers about claims and benefit application filing procedures, VA's 
duties, rights and responsibilities of claimants and beneficiaries, 
general evidence requirements, and general effective dates for new 
awards, as well as revision of decisions and protection of VA ratings. 
This subpart will be published as three separate Notices of Proposed 
Rulemaking (NPRMs) due to its size. The portion concerning claimants' 
and beneficiaries' rights and responsibilities and VA's duties is the 
subject of this document.
     ``Subpart D--Dependents and Survivors'' would inform 
readers how VA determines whether an individual is a dependent or a 
survivor for purposes of determining eligibility for VA benefits. It 
would also provide the evidence requirements for these determinations.
     ``Subpart E--Claims for Service Connection and Disability 
Compensation'' would define service-connected disability compensation, 
including direct and secondary service connection. This subpart would 
inform readers how VA determines entitlement to service connection. The 
subpart would also contain those provisions governing presumptions 
related to service connection, rating principles, and effective dates, 
as well as several special ratings. This subpart will be published as 
three separate NPRMs due

[[Page 24681]]

to its size. The first, concerning presumptions related to service 
connection, was published on July 27, 2004. See 69 FR 44614.
     ``Subpart F--Nonservice-Connected Disability Pensions and 
Death Pensions'' would include information regarding the three types of 
nonservice-connected pension: Improved Pension, Old-Law Pension, and 
Section 306 Pension. This subpart would also include those provisions 
that state how to establish entitlement to Improved Pension, and the 
effective dates governing each pension. This subpart will be published 
as two separate NPRMs due to its size. The portion concerning Old-Law 
Pension, Section 306 Pension, and elections of Improved Pension was 
published as proposed on December 27, 2004. See 69 FR 77578.
     ``Subpart G--Dependency and Indemnity Compensation, Death 
Compensation, Accrued Benefits, and Special Rules Applicable Upon Death 
of a Beneficiary'' would contain regulations governing claims for 
dependency and indemnity compensation (DIC); death compensation; 
accrued benefits; benefits awarded, but unpaid at death; and various 
special rules that apply to the disposition of VA benefits, or proceeds 
of VA benefits, when a beneficiary dies. This subpart would also 
include related definitions, effective-date rules, and rate-of-payment 
rules. This subpart will be published as two separate NPRMs due to its 
size. The portion concerning accrued benefits, special rules applicable 
upon the death of a beneficiary, and several effective-date rules, was 
published as proposed on October 1, 2004. See 69 FR 59072. The portion 
concerning DIC benefits and general provisions relating to proof of 
death and service-connected cause of death will be the subject of a 
separate NPRM.
     ``Subpart H--Special and Ancillary Benefits for Veterans, 
Dependents, and Survivors'' would pertain to special and ancillary 
benefits available, including benefits for children with various birth 
defects.
     ``Subpart I--Benefits for Filipino Veterans and 
Survivors'' would pertain to the various benefits available to Filipino 
veterans and their survivors.
     ``Subpart J--Burial Benefits'' would pertain to burial 
allowances.
     ``Subpart K--Matters Affecting Receipt of Benefits'' would 
contain provisions regarding bars to benefits, forfeiture of benefits, 
and renouncement of benefits.
     ``Subpart L--Payments and Adjustments to Payments'' would 
include general rate-setting rules, several adjustment and resumption 
regulations, and election of benefit rules. Because of its size, 
proposed regulations in subpart L will be published in two separate 
NPRMs.
    The final subpart, ``Subpart M--Apportionments and Payments to 
Fiduciaries or Incarcerated Beneficiaries,'' would include regulations 
governing apportionments, benefits for incarcerated beneficiaries, and 
guardianship.
    Some of the regulations in this NPRM cross-reference other 
compensation and pension regulations. If those regulations have been 
published in this or earlier NPRMs as part of the Project, we cite the 
proposed part 5 section. However, where a regulation proposed in this 
NPRM would cross-reference a proposed part 5 regulation that has not 
yet been published, we cite to the current part 3 regulation that deals 
with the same subject matter. The current part 3 section we cite may 
differ from its eventual part 5 counterpart in some respects, but we 
believe this method will assist readers in understanding these proposed 
regulations where no part 5 counterpart has yet been published.
    Because of its large size, proposed part 5 will be published in a 
number of NPRMs, such as this one. VA will not adopt any portion of 
part 5 as final until all of the NPRMs have been published for public 
comment.
    In connection with this rulemaking, VA will accept comments 
relating to a prior rulemaking issued as part of the Project, if the 
matter being commented on relates to both NPRMs.

Overview of Proposed Subpart C Organization

    This NPRM pertains to compensation and pension regulations that 
apply to the duties of VA and the rights and responsibilities of 
claimants and beneficiaries. These regulations would be contained in 
proposed subpart C of new 38 CFR part 5. Although these regulations 
have been substantially restructured and rewritten for greater clarity 
and ease of use, most of the basic concepts in these proposed 
regulations are the same as in their existing counterparts in 38 CFR 
part 3. However, a few substantive changes are proposed.

Table Comparing Current Part 3 Rules With Proposed Part 5 Rules

    The following table shows the correspondence between the current 
regulations in part 3 and the proposed regulations contained in this 
NPRM:

------------------------------------------------------------------------
                                            Based in whole or in part on
   Proposed part 5 section or paragraph       38 CFR part 3 section or
                                               paragraph (or ``New'')
------------------------------------------------------------------------
5.80......................................  1st sentence, 3.103(e); 2nd
                                             sentence, new.
5.81(a)...................................  3.103(d)
5.81(b)...................................  New.
5.82(a)(1)................................  3.103(c)(1)
5.82(a)(2)................................  New.
5.82(b)...................................  3.103(c)(2)
5.82(c)...................................  3.103(c)(1)
5.82(d)(1)................................  3.103(c)(1)
5.82(d)(2)................................  3.103(c)(2)
5.82(d)(3)................................  New.
5.82(e)(1)................................  3.103(c)(2)
5.82(e)(2)................................  3.103(c)(1)
5.82(e)(3)................................  New.
5.82(f)(1)................................  3.105(i)(1)
5.82(f)(2)................................  3.105(i)(1)
5.82(f)(3)................................  3.105(i)(1)
5.82(f)(4)................................  3.105(i)(1)
5.82(f)(5)................................  3.105(i)(2)
5.83(a)...................................  3.1(q); 3.103(b)
5.83(a)(1)................................  3.103(b)(1), (f)
5.83(a)(2)................................  3.103(b)(1), (f)
5.83(a)(3)................................  3.103(b)(1), (f)
5.83(a)(4)................................  3.103(b)(1), (f)
5.83(a)(5)................................  3.103(b)(1), (f)
5.83(b)...................................  3.103(b)(2)
5.83(c)(1)................................  3.103(b)(3)(i)
5.83(c)(2)................................  3.103(b)(3)(ii)
5.83(c)(3)................................  3.103(b)(3)(iii)
5.83(c)(4)................................  3.103(b)(3)(iv)
5.83(c)(5)................................  3.103(b)(3)(v)
5.83(c)(6)................................  3.103(b)(3)(vi)
5.84......................................  3.103(b)(4)
5.91(a)...................................  3.326 (b)-(c)
5.91(b)...................................  3.304(c)
5.92......................................  3.328
5.93......................................  New.
5.100.....................................  3.110
5.101(a)..................................  3.216
5.101(b)(1)...............................  3.216
5.101(b)(2)...............................  3.216
5.101(c)..................................  3.400(w)
5.101(d)..................................  New.
5.101(e)..................................  3.216
5.101(f)..................................  3.216
5.102(a)..................................  3.327(a)
5.102(b)..................................  3.327(a)
5.102(c)(1)...............................  3.327(b)(1)
5.102(c)(2)(i)............................  3.327(b)(2)(i)
5.102(c)(2)(ii)...........................  3.327(b)(2)(ii)-(iii)
5.102(c)(2)(iii)..........................  3.327(b)(2)(iv)
5.102(c)(2)(iv)...........................  3.327(b)(2)(v)
5.102(c)(2)(v)............................  3.327(b)(2)(vi)
5.102(c)(3)...............................  3.327(b)(1); 4.28
5.102(d)(1)-(2)...........................  3.327(c)
5.103, except for 5.103(e)................  3.655
5.103(e)..................................  3.330
5.104(a)..................................  3.652(a)
5.104(b)..................................  3.652(a)(1)
5.104(c)..................................  3.652(a)(1)-(2)
5.104(d)..................................  3.652(b)
------------------------------------------------------------------------

    Readers who use this table to compare existing regulatory 
provisions with the proposed provisions, and who observe a substantive 
difference between them, should consult the text that appears later in 
this document for an explanation of any significant changes

[[Page 24682]]

in each regulation. Not every paragraph of every current part 3 
regulation regarding the subject matter of this rulemaking is accounted 
for in the table. In some instances, other portions of the part 3 
sections that are addressed in these proposed regulations will appear 
in subparts of part 5 that are being published separately for public 
comment. For example, a reader might find a reference to paragraph (a) 
of a part 3 section in the table, but no reference to paragraph (b) of 
that section because paragraph (b) will be addressed in a separate 
NPRM. The table also does not include provisions from part 3 
regulations that will not be repeated in part 5. Such provisions are 
discussed specifically under the appropriate part 5 heading in this 
preamble. Readers are invited to comment on the proposed part 5 
provisions and also on our proposals to omit those part 3 provisions 
from part 5.

Content of Proposed Regulations

Rights of Claimants and Beneficiaries

5.80 Right to Representation

    We propose to state the provisions pertaining to claimants' and 
beneficiaries' right to representation, located in current Sec.  
3.103(e), in Sec.  5.80. We believe that this concept is difficult to 
find in the current Part 3 organization and that assigning it a 
separate section would make it more prominent than it is in Part 3. We 
also propose to add a provision stating that VA will inform a claimant 
or beneficiary of this right when VA sends them a decision or a 
proposed reduction, discontinuance, or other adverse action. Current 38 
CFR 19.25 only requires VA to inform claimants of this right when a 
decision is rendered. However, it has been long-standing VA practice to 
inform beneficiaries of this right when we propose an adverse action. 
To ensure that beneficiaries and their representatives know that VA 
will provide such notice, we propose to include this provision in 
Sec. Sec.  5.80 and 5.83(a).

5.81 Submission of Information, Evidence, or Argument

    We also propose that current Sec.  3.103(d), ``Submission of 
evidence,'' be set forth without substantive change in a new 
regulation, designated as Sec.  5.81(a). This proposed regulation 
states that any information, evidence, or argument offered in support 
of a claim is to be made part of the record of proceedings. Also to be 
included in the record are any issues raised by the claimant.
    New Sec.  5.81(b) clarifies who may submit information, evidence, 
or argument. Of course a claimant or beneficiary may make such 
submissions, or, where applicable, do so through a fiduciary or 
guardian acting as his or her surrogate. In addition, unless provided 
otherwise in another part 5 section, we propose to permit a 
representative to submit any information, evidence, or argument on 
behalf of a claimant or beneficiary pursuant to any part 5 regulation 
that allows or requires submission of information, evidence, or 
argument. VA's regulations do not explicitly state that a 
representative may submit any information, evidence, or argument on 
behalf of a claimant or beneficiary, but it has long been VA's practice 
to allow such submissions. This practice allows a representative to 
properly assist a claimant or beneficiary in submitting items needed by 
VA in the adjudication process.

5.82 Right to a Hearing

    We also propose a regulation, Sec.  5.82, pertaining to a 
claimant's right to a hearing before the agency of original 
jurisdiction. The regulation would consist of all the provisions 
relating to this right that are currently in Sec. Sec.  3.103(c) and 
3.105(i). It is logical to place all provisions pertaining to a single 
subject in one regulation.
    We propose not to include in Sec.  5.82 the last sentence of 
current Sec.  3.103(c)(2), which reads as follows: ``In cases in which 
the nature, origin, or degree of disability is in issue, the claimant 
may request visual examination by a physician designated by VA and the 
physician's observations will be read into the record.'' We believe 
that the right of a claimant to request an examination or opinion is no 
longer needed because under 38 U.S.C. 5103A(d), enacted in 2000, VA 
will provide a medical examination or opinion if it is ``necessary to 
make a decision on the claim.'' This statutory provision has been 
codified at 38 CFR 3.159(c)(4)(i).
    Current 38 CFR 3.103(c)(1) states in relevant part, ``[u]pon 
request, a claimant is entitled to a hearing at any time on any issue 
or issues involved in a claim.'' We propose to replace the reference to 
``a hearing'' with ``one hearing.'' A claimant generally requests a 
hearing after receiving an initial decision on a claim or after 
receiving an adverse decision affecting the receipt of VA benefits (or 
a proposed decision to reduce or discontinue VA benefits). The hearing 
is generally requested for the purpose of presenting additional 
evidence or argument to substantiate the claim. The VA official 
conducting the hearing is obligated to elicit any information or 
evidence not already of record in support of the benefits claimed. 
Therefore, the current regulatory language that provides for multiple 
hearing opportunities for a claimant to present information or evidence 
is unnecessarily expansive. We also note that this proposed change does 
not affect a claimant's right to a hearing before the Board of 
Veterans' Appeals. The third sentence of proposed 5.82(a)(1) states, 
``A claimant is also entitled to a hearing before the Board of 
Veterans'' Appeals. See Sec.  20.700 and Sec.  20.1304 of this 
chapter.''
    At proposed Sec.  5.82(a)(2), we state that, under certain 
circumstances, one additional hearing on an issue will be provided to a 
claimant. The additional hearing will be provided if the claimant 
asserts that a new witness has been discovered or new evidence found 
that could substantiate the claim and that this witness or evidence 
could only be presented at a hearing and could not be presented at the 
original hearing. This limits the circumstances when the additional 
hearing can be requested and serves the interests of claimants, 
beneficiaries, and VA in expeditiously handling claims. We believe that 
including this exception to the one-hearing rule is fair to claimants 
and beneficiaries.
    Neither current Sec.  3.103, nor any other part 3 regulation, 
generally provides that VA will provide advance notice of a scheduled 
hearing to a claimant. (Section 3.105(i)(1) provides for such notice 
only of predetermination hearings.) It has long been VA's practice to 
provide advance notice of all hearings, and we have put such a 
provision in 5.82(d)(1).
    In Sec.  5.82(d)(3), we propose to add a provision setting forth 
current VA procedure: to make a decision based upon evidence and 
testimony presented during the hearing in addition to all other 
evidence of record. This is consistent with VA's duty to consider all 
evidence of record when making a decision.
    In Sec.  5.82(e)(3), we propose to add a provision stating that if 
a claimant fails without good cause to report for a scheduled hearing, 
VA's decision will be based upon the evidence of record. (Examples of 
good cause in our proposed provision include, but are not limited to, 
illness or hospitalization of the claimant, or death of an immediate 
family member). This provision is similar to a rule in current Sec.  
3.105(i)(2), which concerns predetermination hearings. We believe that 
establishing a fair, consistent policy for all hearings

[[Page 24683]]

will ensure that all claimants and beneficiaries are treated the same 
and will help make the hearing process more efficient.
    Current Sec.  3.105(i) contains the rules pertaining to a 
claimant's or beneficiary's rights in predetermination hearings. We 
propose to place these provisions into paragraph (f) of Sec.  5.82 
because it is logical to place those regulations pertaining to 
predetermination hearings in the same regulation that covers other 
hearing rights.
    Current Sec.  3.105(i)(1) provides that if a beneficiary wants a 
predetermination hearing, VA must receive the request within 30 days 
from the date of VA's notice to the beneficiary of the right to a 
hearing. We propose to include the word ``timely'' in proposed 
paragraph (f)(1) to reinforce the existence of a time limitation.
    In a separate NPRM, ``Subpart A--General Provisions'', we plan to 
expand upon the current definition of ``notice'' (found in 38 CFR Sec.  
3.1(q)) to state in part 5 that copies of VA notices will be sent to a 
claimant or fiduciary, as well as a representative, to the last known 
address of record. Therefore, we propose in Sec. Sec.  5.82, 5.83, 
5.103 and 5.104, to simply state that VA notices will be sent to 
claimants or beneficiaries (as appropriate) to avoid unnecessary 
repetition.

5.83 Right to Notice of Decisions and Proposed Adverse Actions

    Current Sec.  3.103 is titled, ``Procedural due process and 
appellate rights,'' and states the requirements for providing notice of 
decisions to claimants. The current section also includes those 
provisions that VA must follow when advising a beneficiary of a 
proposal to reduce or discontinue benefit payments.
    In paragraph (a) of proposed Sec.  5.83, we state the general 
notice procedures that VA must follow when advising a claimant or 
beneficiary of any decision that affects a benefit payment or the 
granting of relief. Proposed paragraphs (a)(1) through (5) provide that 
the notice must explain the following: the reason for the decision; the 
effective date of the decision; the right to a hearing; the right to 
representation; and the right to an appeal. This material is derived 
from current Sec.  3.103(b)(1) and (f).
    In paragraph (b) of proposed Sec.  5.83, VA proposes to describe 
the advance notice that VA must provide to a beneficiary if VA intends 
to take action adverse to the beneficiary (e.g., reduce or discontinue 
benefits). This paragraph restates provisions in current Sec.  
3.103(b)(2) without substantive change, and adds a requirement that VA 
will ``inform the beneficiary of the 30-day time limit to request a 
predetermination hearing under Sec.  5.82(f).'' We propose to include a 
cross-reference in this paragraph to current Sec.  3.105, which governs 
the procedures applicable to the type of action VA is taking.
    In proposed Sec.  5.83(c), we propose to list the situations in 
which VA need not provide notice of an adverse action before VA takes 
that action. This list is not new, but is a restatement of those 
exceptions found at current Sec.  3.103(b)(3)(i) through (vi). Section 
5.83(c) states that, under certain circumstances, VA will send 
contemporaneous notice of an adverse action, particularly when the 
information leading to the action came from the beneficiary, or the 
fiduciary. We propose to list these in paragraphs (c)(1) through (6).
    In addition to those listed in the current regulation, there are 
two other circumstances in which notice of discontinuance of benefits 
is not required. Notice of discontinuance of benefits is not required 
if VA receives a Record of Interment from the National Cemetery 
Administration or if VA receives an Application for United States Flag 
for Burial Purposes. The Record of Interment or the Application for 
United States Flag for Burial Purposes are reliable indications of a 
beneficiary's death and therefore no notice is required to terminate 
benefits. Therefore, we propose to add receipt of such documents to the 
proposed list in paragraph (c).
    We intend to move current Sec.  3.103(a), which is a statement of 
policy, to the beginning of part 5, where it would serve as a general 
introductory statement concerning the entire part 5 regulations. This 
change will be addressed in a separate NPRM.

5.84 Restoration of Benefits Following Adverse Action

    Proposed Sec.  5.84 is derived from current Sec.  3.103(b)(4). No 
substantive changes to this regulation are intended.

Duties of VA

5.90 VA Assistance in Developing Claims

    Title 38 CFR 3.159 is currently the subject of a separate VA 
rulemaking which will implement changes made by section 701 of Pub. L. 
108-183, 117 Stat. 2670. When that rulemaking is complete, we plan to 
repeat the language of the amended Sec.  3.159 as Sec.  5.90. We 
therefore propose in this rulemaking to reserve space for proposed 
Sec.  5.90.

5.91 Medical Evidence for Disability Claims

    Prosped paragraph (a) of Sec.  5.91 would state rules regarding 
alternative sources of medical evidence that VA may rely on in lieu of 
a VA medical examination or period of observation, assuming the 
evidence is adequate for adjudicating a claim. This paragraph, derived 
from current Sec.  3.326(b) and (c), as well as 38 U.S.C. 5125, notes 
that VA may rely on a hospital or examination report from another 
government agency, private facility, or private physician. We note, 
further, that VA will make reasonable efforts to obtain such non-
federal reports under it's Sec.  3.159(c)(1) duty to assist.
    The third sentence of current Sec.  3.326(a) requires that a 
claimant report to a scheduled VA examination. Because this requirement 
is discussed in detail in current Sec.  3.655 and will be addressed in 
Sec.  5.103 as proposed in this notice, we believe that restating it in 
proposed Sec.  5.91 would be redundant. Therefore, we propose not to 
include this sentence in proposed Sec.  5.91.
    We also plan to restate the second sentence of current Sec.  
3.326(b) and place it in a separate regulation specifically relating to 
medical examinations for former prisoners of war. That change will be 
addressed in a separate NPRM.
    Proposed Sec.  5.91(b) states a rule regarding adjudicating claims 
based on combat injuries and conditions that are obviously due to 
service. The paragraph provides that VA may rate such injuries and 
conditions pending receipt of service records. This paragraph is 
derived from the last sentence of current Sec.  3.304(c).
    We propose to not include the first two sentences of current Sec.  
3.304(c). The first sentence of current Sec.  3.304(c) states, ``The 
development of evidence in connection with claims for service 
connection will be accomplished when deemed necessary but it should not 
be undertaken when evidence present is sufficient for this 
determination.'' The second sentence of current Sec.  3.304(c) states, 
``In initially rating disability of record at the time of discharge, 
the records of the service department, including the reports of 
examination at enlistment and the clinical records during service, will 
ordinarily suffice.'' We believe that in light of the requirements of 
the Veterans Claims Assistance Act of 2000, Pub. L. 106-475, 114 Stat. 
2096, and its implementing regulation, current Sec.  3.159, VA is 
required to obtain all relevant federal records pertinent to 
substantiating a claim, and to make reasonable attempts to obtain non-
federal reports. Because

[[Page 24684]]

current law and regulations define the information and evidence that VA 
is required to obtain or try to obtain, the first sentence of current 
Sec.  3.304(c) is unnecessary. In addition, because the examinations 
conducted by the Department of Defense for service members at the time 
of discharge do not ordinarily yield the evidence required for VA to 
assign a proper evaluation under 38 CFR part 4, Schedule of Rating 
Disabilities, service medical records rarely will ``suffice'' without a 
VA examination.

5.92 Independent Medical Opinions

    We propose to repeat the content of Sec.  3.328 in Sec.  5.92 
without change.

5.93 Service Records Which Are Lost, Destroyed, or Otherwise 
Unavailable

    We propose to establish a new rule to apply if potentially relevant 
service records which were in the custody of specified U.S. Government 
entities are lost or destroyed, or otherwise became unavailable. Our 
goal is to help claimants and adjudicators identify sources of 
alternative evidence. The proposed rule is derived from existing VA 
procedures and policies.
    As indicated in paragraph (a) of the proposed rule, in certain 
cases records in the custody of the Department of Defense have been 
destroyed or are otherwise unavailable due to no fault of the claimant. 
In such cases, VA attempts to obtain alternative evidence in order to 
assist the claimant in developing the evidence necessary to 
substantiate his or her claim. Proposed paragraph (a) requires VA to 
attempt to obtain potentially relevant alternative evidence before 
denying a claim based on a lack of evidence that may have been 
contained in the unavailable records.
    Proposed paragraph (b) describes the most common situation in which 
VA must seek alternative evidence, which is when the original records 
were destroyed in the 1973 fire at the National Personnel Records 
Center. That fire destroyed approximately 80 percent of the stored 
records for Army veterans who served between November 1, 1912, and 
January 1, 1960. The United States Court of Appeals for Veterans Claims 
(CAVC) has taken judicial notice of certain provisions of the VA 
Veterans Benefits Administration Adjudication Procedures Manual, 
(Manual M21-1), which detail the assistance that VA generally provides 
if a claimant's records were destroyed in the 1973 fire. See McCormick 
v. Gober, 14 Vet. App. 39, 44-45 (2000) (remanding for VA consideration 
of Manual M21-1 provisions); Dixon v. Derwinski, 3 Vet. App. 261, 263 
(1992) (holding that VA ``had a duty to advise appellant that, even 
though his service records could not be found, alternative methods of 
supporting the claim would be considered,'' and citing Manual M21-1 
provisions). In proposed paragraph (b) we identify the records most 
likely to have been affected by the 1973 fire.
    In proposed paragraph (c), we state some of the sources of 
alternative evidence that VA uses when the primary records are 
unavailable due to the 1973 fire. The list of sources in this paragraph 
is not all-inclusive; it is intended to assist claimants by alerting 
them to potential sources of relevant evidence.

Responsibilities of Claimants and Beneficiaries

5.100 Time Limits for Claimant or Beneficiary Responses

    We propose to repeat the content of Sec.  3.110 in Sec.  5.100 
without change.

5.101 Requirement To Provide Social Security Numbers

    Section 5101(c)(1) of title 38, United States Code, requires 
claimants applying for disability compensation or pension benefits, as 
well as persons already in receipt of such benefits, to provide VA, on 
request, the Social Security numbers for themselves and any dependent 
or beneficiary on whose behalf, or based upon whom, the claimant or 
beneficiary receives or has applied for benefits. Further, 38 U.S.C. 
5101(c)(2) requires that VA deny the claims of, or discontinue paying 
benefits to, those persons who fail to provide such Social Security 
number upon request. Pursuant to 38 U.S.C. 1822, these requirements 
also apply to claims for or awards of monetary benefits under chapter 
18 of title 38, United States Code. VA has implemented these statutes 
in current Sec.  3.216.
    Section 5101(c)(2) of title 38, United States Code, and current 
Sec.  3.216 both refer only to terminating payments when a person fails 
to disclose a requested Social Security number to VA. We have proposed 
in 38 CFR Sec.  5.101(b) that VA may reduce rather than discontinue 
payments in certain circumstances (for example, when we have a 
beneficiary's Social Security number but not the number of a dependent 
for whom additional benefits are being paid). Although 38 U.S.C. 
5101(c)(2) refers to termination of payments, we believe it is 
reasonable to construe it to require only a reduction in cases where we 
have the beneficiary's Social Security number but not a dependent's. 
According to VAOPGCPREC 24-95, 38 U.S.C. 5101(c)(2) was enacted to 
prevent fraudulent payments by allowing for the verification of the 
existence and income of beneficiaries and their dependents. We believe 
it is reasonable to conclude that Congress did not intend that a 
beneficiary who has provided his or her own Social Security number 
would forfeit all of his or her benefits based on the failure to 
provide the Social Security number of a dependent for whom or based 
upon whom additional benefits were being paid.
    We propose to rewrite Sec.  3.216 in plain language and reorganize 
its provisions logically but without substantive change. In addition, 
current Sec.  3.500(w) provides the effective date of a discontinuance 
or reduction of benefits based upon the failure to provide a Social 
Security number. VA proposes to include this brief effective date 
provision in proposed 38 CFR 5.101(c) to allow the reader to easily 
find the effective date provisions for a discontinuance or reduction of 
benefits based on a failure to provide VA with a Social Security 
number.
    Section 5101(c)(2) of title 38, U.S.C., states that VA may 
reinstate benefits if a beneficiary whose benefits have been 
discontinued for failure to provide a Social Security number 
subsequently provides it. We propose to add a provision, in 38 CFR 
5.101(d), that clarifies that VA will reinstate benefits from the date 
VA received the Social Security number if the number is ultimately 
provided. This is consistent with VA practice and with the authorizing 
statute.
    Current Sec.  3.216 gives beneficiaries 60 days to submit a 
requested Social Security number. We believe this a reasonable time 
limit and propose to apply it to claimants as well, in 38 CFR 5.101(e).

5.102 Meeting Reexamination Requirements

    In Sec.  5.102, we propose to include provisions in current Sec.  
3.327, which governs the circumstances under which beneficiaries may be 
required to report for reexaminations to verify the continued presence 
and/or current level of a disability. In proposed Sec.  5.102, we would 
restate the language used in Sec.  3.327 to clarify some terms, to 
illustrate those situations that would warrant a reexamination, and to 
increase readability.
    At Sec.  5.102(a) we propose to replace the phrase ``material 
change,'' which may be ambiguous, with the phrase ``if reexamination is 
otherwise necessary to ensure that the disability is accurately 
evaluated.''

[[Page 24685]]

    We also propose to more clearly refer to the three types of 
circumstances under which VA would request periodic future 
reexaminations. Current Sec.  3.327(a) states that ``reexaminations 
will be required if it is likely that a disability has improved, or if 
evidence indicates there has been a material change in a disability or 
that the current rating may be incorrect.'' We propose to clarify that 
these examinations are needed to: verify that the beneficiary still has 
the disability at issue; ascertain whether or not a disability has 
improved to the point that a reduction in rating would be warranted; or 
otherwise ensure that the disability is accurately evaluated. This 
language is broad enough to encompass those disabilities that are 
evaluated under the criteria in the Schedule for Rating Disabilities, 
as well as those that are not, such as disabilities for which VA is 
paying special monthly compensation or special monthly pension. This 
would also include both ratings for disability compensation and 
pension. The third circumstance encompasses those situations where a 
disability still exists and has not improved, but reexamination is 
still necessary because the rating schedule or other pertinent 
regulations have changed, or there is an indication that the rating 
assigned was based on inaccurate or incomplete information.
    We also propose to expand the rule contained in current Sec.  
3.327(a) that a beneficiary is required to report for VA 
reexaminations. We propose to include a cross-reference to Sec.  5.103 
in proposed Sec.  5.102(b), and also propose to state that if the 
beneficiary fails to report for a scheduled VA examination, a 
determination of the claim will be made based upon the other evidence 
of record. This would help ensure that the reader is made aware of the 
consequences of failing to report for a VA examination.
    Current Sec.  3.327(b)(2) lists six circumstances when a periodic 
future reexamination will not be requested in disability compensation 
cases. Current Sec.  3.327(b)(2)(i) states that in service-connected 
cases, no periodic future examinations will be scheduled when the 
disability is static. Current Sec.  3.327(b)(2)(iii) states that in 
service-connected cases, no periodic future examinations will be 
scheduled where the disability from disease is permanent in character 
and of such nature that there is no likelihood of improvement. We 
believe that paragraphs (b)(2)(i) and (b)(2)(iii) address essentially 
the same situation, that no reexamination is necessary if the 
disability is ``static'' or is ``permanent'' and unlikely to improve. 
Therefore, we propose to consolidate these two provisions into one 
paragraph, (c)(2)(i).
    We also propose to revise the provisions governing 
``prestabilization ratings'' found in current paragraph (b)(1) and to 
use terms from the chart in current Sec.  4.28. In order to clarify the 
meaning of ``prestabilization ratings,'' we propose to refer, in Sec.  
5.102(c)(3), more specifically to ratings assigned to ``a disability 
that has not yet become stable'' and to ``a disability caused by a 
wound or injury that has not yet completely healed.''

5.103 Failure To Report for VA Examination or Reexamination

    Proposed Sec.  5.103 includes provisions of Sec. Sec.  3.330 and 
3.655. Current Sec.  3.655(b) provides for two possible consequences of 
a claimant's or beneficiary's failure to report for a scheduled VA 
examination. If an ``original disability compensation claim'' is 
pending and a claimant fails to report for an examination, VA will 
decide the claim based upon the evidence of record. If, however, ``any 
other original claim,'' a ``reopened claim,'' or a ``claim for 
increase'' is pending and a veteran fails to report for a scheduled VA 
examination, VA denies the claim. We propose to retain this distinction 
in proposed paragraph (b).
    In current Sec.  3.655(c)(1), when a beneficiary fails to report 
for a scheduled reexamination, and, as a result, VA proposes to reduce 
or discontinue benefits, VA is required to issue a ``pretermination 
notice.'' The pretermination notice currently must, among other things, 
advise the beneficiary of his or her ``procedural and appellate 
rights.'' We believe that it is unnecessary and potentially misleading 
to refer to the provision of ``appellate rights'' in a pretermination 
notice, which is not, by its nature, an appealable decision. We 
therefore propose to eliminate the reference to ``appellate rights.'' 
Additionally, we propose to change the term ``pretermination notice'' 
to ``notice of proposed discontinuance or reduction.'' The term 
``pretermination notice'' could be confusing, as current Sec.  3.655(c) 
contemplates notice of not only discontinuance of benefits, but also 
notice of a proposed reduction of benefits. For example, current Sec.  
3.655(c)(1) states, ``[s]uch notice shall also include the prospective 
date of discontinuance or reduction, the reason therefore and a 
statement of the claimant's procedural and appellate rights.'' We 
believe the phrase ``notice of proposed discontinuance or reduction'' 
is more accurate.
    Current Sec.  3.330 applies to resumption of disability ratings 
following a period during which benefit payments were discontinued or 
reduced because of a beneficiary's failure to report for a 
reexamination. The resumption is triggered by the beneficiary's 
subsequent willingness to undergo a reexamination. We consider this 
material to fit logically into the substance of Sec.  3.655, and we 
therefore propose to integrate Sec.  3.330 into proposed Sec.  
5.103(e).
    We propose not to include in part 5 paragraph (a) of current Sec.  
3.655. We regard the initial clause of current paragraph (a), ``[w]hen 
entitlement or continued entitlement to a benefit cannot be established 
or confirmed without a current VA examination or reexamination,'' as 
unnecessary. VA generally will schedule an examination or reexamination 
when it appears necessary to do so in order to establish or confirm 
entitlement to a benefit. However, it may be the case that, since the 
scheduling of the examination or reexamination, additional evidence 
associated with the claims file indicates that the claim may be granted 
or the benefit continued without recourse to an examination or 
reexamination. In such a case, it would be unfair to penalize the 
claimant or beneficiary for failure to report for the examination or 
reexamination by denying the claim or reducing or discontinuing the 
benefit when there is otherwise sufficient evidence to grant the claim 
or continue to provide the benefit.
    In proposed paragraph (f), we propose to add language that would 
emphasize that the examples of good cause described therein are not 
exclusive--that other circumstances not listed may be considered as 
``good cause'' provided their gravity is similar to that of the 
currently listed examples of illness or hospitalization of the claimant 
or beneficiary, and death of an immediate family member. We propose to 
include a statement that VA will make these determinations on a case-
by-case basis.

5.104 Certifying Continuing Eligibility To Receive Benefits

    We propose to amend those regulations that pertain to informing 
beneficiaries of the need to submit specific information to VA to 
certify continuing eligibility to receive benefits or the amount of 
benefits payable. These provisions are contained in current Sec.  3.652 
and are proposed as Sec.  5.104. We believe that these provisions may 
be revised to more clearly inform beneficiaries of the procedures that 
must be followed to certify eligibility and the types of information 
that must

[[Page 24686]]

be provided upon the request of VA. We propose to revise the language 
so that it would be clear to beneficiaries that they must submit, upon 
request, information such as marital status, income, number of 
dependents or any other information that is necessary to establish 
continuing eligibility to receive benefits. We also believe that 
current Sec.  3.652 could more clearly inform beneficiaries of the 
consequences of failing to provide the information requested, such as 
the reduction or discontinuance of benefits. We would include in Sec.  
5.104 appropriate clarification.
    Current Sec.  3.500(v), ``Failure to furnish evidence of continued 
eligibility,'' simply refers the reader back to current Sec.  3.652 
(proposed Sec.  5.104). Therefore, we will not include this paragraph 
in any part 5 regulation.

Endnote Regarding Amendatory Language

    We intend to ultimately remove part 3 entirely, but we are not 
including amendatory language to accomplish that at this time. VA will 
provide public notice before removing part 3.

Paperwork Reduction Act

    Although this document contains provisions constituting a 
collection of information, at 38 CFR 5.82, 5.101, and 5.104, under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501-3521), no new 
or proposed revised collections of information are associated with this 
proposed rule. The information collection requirements for Sec. Sec.  
5.82, 5.101, and 5.104 are currently approved by the Office of 
Management and Budget (OMB) and have been assigned OMB control numbers 
2900-0001, 2900-0004, 2900-0005, 2900-0006, 2900-0085, 2900-0572, and 
2900-0624.

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 amendment would not significantly affect any small 
entities. 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.

Executive Order 12866

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

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 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 (adjusted annually for 
inflation) in any given year. This proposed rule would have no such 
effect on State, local, or tribal governments, or the private sector.

Catalog of Federal Domestic Assistance Numbers

    The Catalog of Federal Domestic Assistance program numbers for this 
proposal are 64.100-.102, 64.104-.110, 64.115, and 64.127.

List of Subjects in 38 CFR Part 5

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

    Approved: January 31, 2005.
Anthony J. Principi,
Secretary of Veterans Affairs.

    For the reasons set out in the preamble, VA proposes to further 
amend 38 CFR part 5 as proposed to be added at 69 FR 4832, January 30, 
2004, by adding subpart C to read as follows:

PART 5--COMPENSATION, PENSION, BURIAL, AND RELATED BENEFITS

Subpart C--Adjudication Process, General

Rights of Claimants and Beneficiaries

Sec.
5.80 Right to representation.
5.81 Submission of information, evidence, or argument.
5.82 Right to a hearing.
5.83 Right to notice of decisions and proposed adverse actions.
5.84 Restoration of benefits following adverse action.

Duties of VA

5.90 [Reserved]
5.91 Medical evidence for disability claims.
5.92 Independent medical opinions.
5.93 Service records which are lost, destroyed, or otherwise 
unavailable.

Responsibilities of Claimants and Beneficiaries

5.100 Time limits for claimant or beneficiary responses.
5.101 Requirement to provide Social Security numbers.
5.102 Meeting reexamination requirements.
5.103 Failure to report for VA examination or reexamination.
5.104 Certifying continuing eligibility to receive benefits.

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

Subpart C--Adjudicative Process, General

Rights of Claimants and Beneficiaries


Sec.  5.80  Right to representation.

    Subject to the provisions of Sec. Sec.  14.626 through 14.635 of 
this chapter, a claimant or beneficiary is entitled to the 
representation of his or her choice at every stage in the claims 
process. When VA notifies a claimant or beneficiary under Sec.  5.83 of 
a decision or a proposed reduction, discontinuance, or other adverse 
action, VA will also notify him or her of the right to representation.

(Authority: 38 U.S.C. 501, 5901-5904)


    Cross Reference: Section 19.25 of this chapter (concerning 
notification of the right to appeal, which includes notification of the 
right to representation).


Sec.  5.81  Submission of information, evidence, or argument.

    (a) Submissions included in the record. VA will include in the 
record of proceedings any information, evidence (whether documentary, 
testimonial, or in other form), and any argument that a claimant offers 
in support of a claim. VA will also include in the record of 
proceedings with respect to the claim any issues a claimant raises, 
either in writing or at a hearing.
    (b) Who may submit information, evidence, or argument. Information, 
evidence, or argument may be submitted by a claimant or beneficiary, 
or, where applicable, through a guardian or fiduciary acting on his or 
her behalf. Unless specifically provided otherwise in this part, a 
claimant's or beneficiary's authorized representative may submit 
information, evidence, or argument pursuant to any section of this part 
that allows or requires submission of information, evidence or 
argument.

(Authority: 38 U.S.C. 501)

Sec.  5.82  Right to a hearing.

    (a) General--(1) The one-hearing rule. Upon request, a claimant is 
entitled to one hearing before the agency of original jurisdiction at 
any time on any issue or issues involved in a pending claim before the 
agency of original jurisdiction. When VA notifies a claimant or 
beneficiary of a decision or a proposed reduction, discontinuance, or 
other adverse action under Sec.  5.83, VA will also notify the claimant 
or beneficiary of the right to a hearing. A claimant is also entitled 
to a hearing before the Board of Veterans' Appeals. See Sec. Sec.  
20.700 and 20.1304 of this

[[Page 24687]]

chapter. Except as provided in paragraph (a)(2) of this section, a 
claimant who received a hearing before the claim was reviewed by the 
Board of Veterans' Appeals (Board) is not entitled to an additional 
hearing after that claim is remanded by the Board to the agency of 
original jurisdiction.
    (2) Exception to the one-hearing rule. A claimant will be provided 
one additional hearing on any issue involved in a claim when the 
claimant asserts that: He or she has discovered a new witness or new 
evidence to substantiate the claim; he or she can present that witness 
or evidence only at an oral hearing; and the witness or evidence could 
not have been presented at the original hearing.
    (b) Purpose of hearings; requirement for oath or affirmation. The 
purpose of a hearing under this section is to provide the claimant with 
an opportunity to introduce into the record of proceedings, in person, 
any available evidence, arguments, or contentions which he or she 
considers important to the case. Testimony at a hearing will be under 
oath or affirmation.
    (c) Where VA will conduct hearings. The hearing will be held in the 
VA office that has jurisdiction over the claim or in the VA office with 
adjudicative functions nearest the claimant's home. Subject to 
available resources and solely at the option of VA, the hearing may be 
held at any other VA facility or Federal building at which suitable 
hearing facilities are available.
    (d) VA responsibilities in conjunction with hearings. (1) VA will 
provide advance notice to a claimant of the time and place of the 
hearing. If the hearing arises in the context of a proposed reduction, 
discontinuance, other adverse action or an appeal, a VA employee or 
employees having decision-making authority and who did not previously 
participate in the case will conduct the hearing. The employee or 
employees will establish a record of the hearing and will issue a 
decision after the hearing.
    (2) The VA employee or employees conducting the hearing will 
explain fully the issues and suggest the submission of evidence the 
claimant may have overlooked that would tend to prove the claim. To 
assure clarity and completeness of the hearing record, questions 
directed to the claimant and to witnesses will be framed to explore 
fully the basis for entitlement rather than with an intent to refute 
evidence or to discredit testimony. The employee, or employees, 
conducting the hearing will ensure that all testimony is given under 
oath or affirmation.
    (3) If a hearing is conducted, VA will make a decision based upon 
evidence and testimony presented during the hearing in addition to all 
other evidence of record.
    (e) Claimant rights and responsibilities in conjunction with 
hearings. (1) The claimant is entitled to have witnesses testify. The 
claimant and witnesses must appear at the hearing, either in person or 
by videoconferencing. Normally, VA will not schedule a hearing for the 
sole purpose of receiving argument from a representative.
    (2) All expenses incurred by the claimant in conjunction with the 
hearing are the responsibility of the claimant.
    (3) If a claimant fails without good cause to report for a 
scheduled hearing, VA will decide the claim based upon the evidence of 
record. Examples of good cause include, but are not limited to, illness 
or hospitalization of the claimant, or death of an immediate family 
member.
    (f) Requirements for predetermination hearings. Except as otherwise 
provided in Sec.  5.83(c), VA will provide notice of the right to a 
hearing before VA reduces, discontinues, or otherwise adversely affects 
benefits. A predetermination hearing will not be provided unless VA 
receives a request for one no more than 30 days after the date of the 
notice of the proposed action.
    (1) If the beneficiary does not timely request a predetermination 
hearing, or fails without good cause to report for a scheduled 
predetermination hearing, VA will make a determination on the proposed 
action based on the evidence of record. Examples of good cause include, 
but are not limited to, illness or hospitalization of the beneficiary, 
or death of an immediate family member.
    (2) If VA receives a request for a predetermination hearing no more 
than 30 days after the date of the notice of the proposed action, VA 
will send the beneficiary written notice of the time and place for the 
hearing.
    (3) VA will send the notice of the time and place for the 
predetermination hearing at least 10 days before the scheduled hearing 
date. This 10-day advance notice requirement may be waived by the 
beneficiary or representative.
    (4) If a predetermination hearing is timely requested, VA will not 
make a final determination reducing, discontinuing, or otherwise 
adversely affecting benefits before the scheduled date of the hearing.
    (5) If a predetermination hearing is conducted, VA will make the 
determination based upon evidence and testimony presented during the 
hearing in addition to all other evidence of record.
    Cross Reference: See Sec.  3.105 of this chapter for the procedures 
VA follows when revising decisions and the effective date of these 
decisions.

(Authority: 38 U.S.C. 501(a)(1))

Sec.  5.83  Right to notice of decisions and proposed adverse actions.

    (a) General. VA will send to a claimant or beneficiary written 
notice of any decision, or proposed adverse action, that affects the 
payment of benefits or the granting of relief to that claimant or 
beneficiary. The notice will explain:
    (1) If a claim is not fully granted, the reason for the decision 
and a summary of the evidence considered;
    (2) The effective date of any adjustment of benefits;
    (3) The right to a hearing on any issue involved in the claim;
    (4) The right to representation; and
    (5) The right to appeal, including how and when to exercise this 
right to appeal. (Appellate procedures are found in part 20 of this 
chapter.)
    (b) VA will send an advance notice of adverse action. Except as 
otherwise provided in paragraph (c) of this section, VA will notify a 
beneficiary at least 60 days before it reduces, discontinues, or 
otherwise adversely affects the beneficiary's receipt of VA benefits. 
The notice will inform the beneficiary of the 30-day time limit to 
request a predetermination hearing under Sec.  5.82(f). VA will allow 
the beneficiary 60 days after the date of the notice to submit evidence 
and/or argument to show why the adverse action should not be taken.
    Cross Reference: See Sec.  3.105 of this chapter for procedures 
applicable to the type of action VA is taking.
    (c) When VA will send a contemporaneous notice of reduction, 
discontinuance, or other adverse action. VA will send a written notice 
to a beneficiary at the same time it reduces, discontinues, or 
otherwise takes an adverse action under any of the circumstances 
described in paragraphs (c)(1) through (c)(6) of this section.
    (1)(i) The adverse action results solely from information or 
statements, provided orally or in writing to VA by the beneficiary or 
the fiduciary, as to income, net worth, dependency, or marital status;
    (ii) The information or statements are factual and unambiguous; and
    (iii) The beneficiary or fiduciary has knowledge or notice that 
such information or statements may be used to calculate benefit 
amounts. See Sec.  3.217

[[Page 24688]]

of this chapter for procedures governing the submission by a 
beneficiary or his or her fiduciary of oral or written information or 
statements.
    (2) The adverse action results from the beneficiary's or 
fiduciary's failure to return an eligibility verification report as 
required by Sec.  3.277 of this chapter.
    (3) VA receives credible evidence indicating that a beneficiary has 
died. However, VA is not required to send a notice of discontinuance of 
benefits (contemporaneous or otherwise) if VA receives:
    (i) A death certificate;
    (ii) A terminal hospital report verifying the death of a 
beneficiary;
    (iii) A claim for VA burial benefits;
    (iv) An ``Application for United States Flag for Burial Purposes''; 
or
    (v) A ``Record of Interment'' from the National Cemetery 
Administration.
    (4) The adverse action results from a beneficiary's written and 
signed statement renouncing VA benefits (see Sec.  3.106 of this 
chapter on renouncement).
    (5) The adverse action results from a veteran's written and signed 
statement that he or she has returned to active service. The statement 
must include each of the following:
    (i) The branch of service;
    (ii) The date of reentry into service;
    (iii) The veteran's acknowledgement that receipt of active military 
service pay precludes receipt at the same time of VA disability 
compensation or pension. See Sec.  3.654 of this chapter regarding 
active service pay.
    (6) The adverse action results from a garnishment order issued 
under 42 U.S.C. 659(a), allowing the U.S. to consent to garnishment or 
withholding of pay for members of the Armed Forces and, in certain 
circumstances, disability compensation, to enforce child support and 
alimony obligations. See 42 U.S.C. 659(h)(1)(A)(ii)(V) for the limited 
circumstance of garnishing certain disability pay.

(Authority: 38 U.S.C. 501, 5104)

Sec.  5.84  Restoration of benefits following adverse action.

    (a) If VA reduces or discontinues benefits, or takes other action 
adverse to a beneficiary, based upon information or an oral statement 
provided by the beneficiary or fiduciary, VA will retroactively restore 
such benefits if the beneficiary or fiduciary asserts no more than 30 
days after the date of the VA notice of adverse action either of the 
following:
    (1) The information or statement is inaccurate.
    (2) The information or statement was not provided by the 
beneficiary or his or her fiduciary.
    (b) Restoration of benefits under this section does not preclude VA 
from later taking action that adversely affects the beneficiary's 
receipt of benefits based on the information or oral statements 
referred to in paragraph (a) of this section.

(Authority: 38 U.S.C. 501, 5104)

Duties of VA


Sec.  5.90  [Reserved]


Sec.  5.91  Medical evidence for disability claims.

    (a) Medical evidence rendering VA examination unnecessary. If they 
are adequate for purposes of adjudicating a claim, VA may rely on 
hospital or examination reports from a government or private facility, 
or reports from private physicians. When such reports are of record, VA 
does not need to provide a VA examination or period of hospital 
observation.
    (b) Rating injuries and conditions obviously incurred in service. 
VA may assign an evaluation for combat injuries or other conditions 
that obviously were incurred in service as soon as sufficient evidence 
to rate the severity of the condition is available, even if VA has not 
yet received the claimant's enlistment examination and other service 
records.

(Authority: 38 U.S.C. 1154, 5103A, 5125)

Sec.  5.92  Independent medical opinions.

    (a) General. When warranted by the medical complexity or 
controversy involved in a pending claim, an advisory medical opinion 
may be obtained from one or more medical experts who are not employees 
of VA. Opinions shall be obtained from recognized medical schools, 
universities, clinics or medical institutions with which arrangements 
for such opinions have been made, and an appropriate official of the 
institution shall select the individual expert(s) to render an opinion.
    (b) Requests. A request for an independent medical opinion in 
conjunction with a claim pending at the regional office level may be 
initiated by the office having jurisdiction over the claim, by the 
claimant, or by his or her representative. The request must be 
submitted in writing and must set forth in detail the reasons why the 
opinion is necessary. All such requests shall be submitted through the 
Veterans Service Center Manager of the office having jurisdiction over 
the claim, and those requests which in the judgment of the Veterans 
Service Center Manager merit consideration shall be referred to the 
Compensation and Pension Service for approval.
    (c) Approval. Approval shall be granted only upon a determination 
by the Compensation and Pension Service that the issue under 
consideration poses a medical problem of such obscurity or complexity, 
or has generated such controversy in the medical community at large, as 
to justify solicitation of an independent medical opinion. When 
approval has been granted, the Compensation and Pension Service shall 
obtain the opinion. A determination that an independent medical opinion 
is not warranted may be contested only as part of an appeal on the 
merits of the decision rendered on the primary issue by the agency of 
original jurisdiction.
    (d) Notification. The Compensation and Pension Service shall notify 
the claimant when the request for an independent medical opinion has 
been approved with regard to his or her claim and shall furnish the 
claimant with a copy of the opinion when it is received. If, in the 
judgment of the Secretary, disclosure of the independent medical 
opinion would be harmful to the physical or mental health of the 
claimant, disclosure shall be subject to the special procedures set 
forth in Sec.  1.577 of this chapter.

(Authority: 5 U.S.C. 552a(f)(3); 38 U.S.C. 5109, 5701(b)(1))

Sec.  5.93  Service records which are lost, destroyed, or otherwise 
unavailable.

    (a) Records in the custody of the Department of Defense. When 
records that are potentially relevant to a claim for benefits and that 
were in the custody of the Department of Defense have been lost or 
destroyed, or otherwise have become unavailable, VA will not deny the 
claim without attempting to obtain potentially relevant alternative 
evidence. (Examples of sources of alternative evidence are listed in 
paragraph (c) of this section).
    (b) Destruction due to fire at the National Personnel Records 
Center. On July 12, 1973, there was a fire at the National Archives and 
Records Administration's National Personnel Records Center (NPRC). When 
the NPRC reports that it does not have the claimant's records because 
they were destroyed by this fire, VA will not deny the claim without 
attempting to obtain potentially relevant alternative evidence. 
(Examples of sources of alternative evidence are listed in paragraph 
(c) of this section). The following are the two main groups of records 
destroyed by the NPRC fire:
    (1) Army. Records for certain Army veterans who served between 
November

[[Page 24689]]

1, 1912, and January 1, 1960. Records of Army retirees who were alive 
on July 12, 1973, were not destroyed by the fire because they were 
stored at a different location.
    (2) Air Force. Records for certain Air Force veterans with surnames 
``Hubbard'' through Z who were discharged between September 25, 1947 
and January 1, 1964, and had no retired or Reserve status.
    (c) Alternative evidence development. Depending on the facts of the 
case, sources of potentially relevant alternative evidence for records 
described in paragraphs (a) or (b) of this section include the 
following:
    (1) A claimant's personal copies of discharge papers, service 
medical records, or other evidence of military service;
    (2) State Adjutant Generals' offices or State historical 
commissions;
    (3) The Office of Personnel Management (if the veteran was employed 
by a Federal or State agency), a private employer, or the Railroad 
Retirement Board (if the veteran was employed by a railroad);
    (4) The Social Security Administration;
    (5) VA or military files or records relating to an earlier claim 
filed with VA;
    (6) Service medical personnel or people who knew the veteran during 
his or her service;
    (7) State or local accident and police reports from the time and 
place the veteran served;
    (8) Employment physical examinations or insurance examinations;
    (9) Hospitals, clinics, or private physicians who treated a 
veteran, especially soon after separation, or pharmacies that filled 
prescriptions;
    (10) Letters written during service or photographs taken during 
service.

(Authority: 38 U.S.C. 501)

Responsibilities of Claimants and Beneficiaries


Sec.  5.100  Time limits for claimant or beneficiary responses.

    (a) In computing the time limit for any action required of a 
claimant or beneficiary, including the filing of claims or evidence 
requested by VA, the first day of the specified period will be excluded 
and the last day included. This rule is applicable in cases in which 
the time limit expires on a workday. Where the time limit would expire 
on a Saturday, Sunday, or holiday, the next succeeding workday will be 
included in the computation.
    (b) The first day of the specified period referred to in paragraph 
(a) of this section shall be the date of mailing of notification to the 
claimant or beneficiary of the action required and the time limit 
therefor. The date of the letter of notification shall be considered 
the date of mailing for purposes of computing time limits. As to 
appeals, see Sec. Sec.  20.302 and 20.305 of this chapter.

(Authority: 38 U.S.C. 501)

Sec.  5.101  Requirement to provide Social Security numbers.

    (a) General requirement to provide Social Security number. If 
requested to do so by VA, each claimant for, or beneficiary of, 
compensation, pension, dependency and indemnity compensation, or a 
monetary benefit under 38 U.S.C. chapter 18 must provide to VA his or 
her Social Security number, as well as the Social Security number of 
any dependent or other person on whose behalf, or based upon whom, 
benefits are sought or received.
    (b) Individuals receiving VA benefits. If 60 days after VA requests 
a Social Security number, the beneficiary fails either to provide the 
requested Social Security number or to show that no Social Security 
number was assigned, VA will take the following action:
    (1) If the beneficiary fails to provide his or her own Social 
Security number, VA will discontinue benefits.
    (2) If the beneficiary fails to provide the Social Security number 
for any dependent, VA will reduce the benefits payable by the amount 
payable to or on behalf of such dependent; however, VA may still 
consider that dependent's income for purposes of determining 
entitlement to income-based benefits.
    (c) Effective date of reduction or discontinuance. VA's 
discontinuance or reduction of benefits under paragraph (b) of this 
section will be effective on the first day of the first month beginning 
more than 60 days after the date VA requested the Social Security 
number.
    (d) Effective date of resumed payments. If a claimant or 
beneficiary provides VA with the requested Social Security number, VA 
will resume payment of benefits at the prior rate, effective on the 
date VA received the Social Security number, provided that payment of 
benefits at that rate is otherwise in order.
    (e) Claimant's application for VA benefits. If 60 days after VA 
requests a Social Security number, the claimant fails either to provide 
the requested Social Security number or to show that no Social Security 
number was assigned, VA will deny the claim. If a claimant fails to 
provide to VA the Social Security number of a dependent, then VA will 
deny benefits that are based on the existence of the dependent.
    (f) When a Social Security number is not required. A claimant or 
beneficiary is not required to provide a Social Security number for any 
person to whom a Social Security number has not been assigned.

(Authority: 38 U.S.C. 501, 1822, 5101(c))

Sec.  5.102  Meeting reexamination requirements.

    (a) General. VA may reexamine a beneficiary, or require a period or 
periods of hospital observation, at any time to ensure that the 
beneficiary's disability rating is accurate. For example, VA may 
reexamine a beneficiary if evidence indicates that the disability for 
which VA is making payments may no longer exist or may have improved to 
such a degree that a reduced rating might be appropriate; or if 
reexamination is otherwise necessary to ensure that the disability is 
accurately evaluated. Paragraphs (c) and (d) of this section provide 
general guidelines for scheduling reexaminations, but do not limit VA's 
authority to schedule reexaminations or periods of hospital observation 
at any time in order to ensure that a disability is accurately rated.
    (b) Beneficiaries are required to report for scheduled 
reexaminations. A beneficiary must report for a VA-scheduled 
reexamination. If he or she does not report, VA will take the steps 
described in Sec.  5.103 of this part, ``Failure to report for VA 
examination or reexamination.''
    (c) Scheduling reexaminations in disability compensation cases. The 
following rules apply to disability compensation cases:
    (1) General rule. As a general rule, if periodic future 
reexaminations are warranted, VA may schedule such reexaminations to 
occur between two and five years after the date on which VA last 
examined the beneficiary, unless some other law or regulation specifies 
another time period.
    (2) When VA will not schedule periodic reexaminations. VA will not 
schedule periodic future reexaminations under the following 
circumstances:
    (i) The disability is static;
    (ii) Medical examinations or hospital reports show that the 
symptoms and findings of the disability have persisted without 
significant improvement for at least five years;
    (iii) The beneficiary has attained the age of 55, except in unusual 
circumstances;
    (iv) The disability in question is rated at a prescribed mandatory 
minimum level under the Schedule for Rating Disabilities in part 4 of 
this chapter; or

[[Page 24690]]

    (v) The combined disability rating would not decrease even if a 
reexamination for the specific disability at issue would result in a 
decreased rating for that disability; however, if a reexamination 
potentially would reduce an award of special monthly compensation, 
reexamination may be warranted even if the combined disability rating 
would not be reduced.
    Cross Reference: See Sec.  4.25 of this chapter for information on 
``combined ratings'' and how they are calculated.
    (3) Discharge from service with unstabilized disability. If a 
person is discharged from military service with a disability that has 
not yet become stable or with a disability caused by a wound or injury 
that has not yet completely healed, VA may, pursuant to Sec.  4.28 of 
this chapter, temporarily assign a prestabilization disability rating 
of either 100 percent or 50 percent to the disability. If VA assigns a 
prestabilization rating under Sec.  4.28 of this chapter, VA will 
schedule a reexamination to occur 6 to 12 months after the date the 
person separates from service, to determine the appropriate schedular 
evaluation under the Schedule for Rating Disabilities in part 4 of this 
chapter.
    (d) Pension cases. The following rules apply to pension cases:
    (1) If the beneficiary has attained the age of 55, VA will schedule 
a reexamination only in unusual circumstances.
    (2) VA generally will not schedule a reexamination if it is obvious 
that the disability is unlikely to improve over the long term or the 
medical history has confirmed the presence of a permanent and total 
nonservice-connected disability. In other cases, VA will reexamine only 
in unusual circumstances.

(Authority: 38 U.S.C. 501)

Sec.  5.103  Failure to report for VA examination or reexamination.

    (a) General. VA will schedule a VA examination when needed to 
establish entitlement to a benefit or an increased disability 
evaluation. VA will schedule a VA reexamination when needed to confirm 
continued entitlement to a benefit or continued entitlement to a 
particular disability evaluation. See Sec.  3.159(c)(4) of this 
chapter, ``Providing medical examinations or obtaining medical 
opinions.'' If a claimant or beneficiary, with good cause, fails to 
report for a VA examination or reexamination, VA will reschedule the 
examination or reexamination. Examples of good cause are listed in 
paragraph (f) of this section.
    (b) Failure without good cause to report for a scheduled 
examination. If a claimant or beneficiary, without good cause, fails to 
report for a VA examination, VA will decide the claim as follows:
    (1) For an original disability compensation claim, VA will make a 
decision based on the evidence in the claims file.
    (2) For any other original claim, a new claim, a reopened claim, or 
a claim for increase, VA will deny the claim.
    (c) Failure without good cause to report for a scheduled 
reexamination--(1) Continuing entitlement to a benefit. If a 
beneficiary fails, without good cause, to report for a VA reexamination 
and continuing entitlement to the benefit cannot be confirmed without a 
VA reexamination, VA will propose to discontinue the benefit.
    (2) Continuing entitlement to a particular evaluation. If a 
beneficiary fails, without good cause, to report for a VA reexamination 
and continuing entitlement to a particular disability evaluation for 
one or more of the beneficiary's disabilities cannot be confirmed 
without a VA reexamination, VA will propose to reduce the evaluation 
for the disability or disabilities at issue to one of the following, as 
applicable:
    (i) The highest disability evaluation assigned to that disability 
that is protected under Sec.  3.951(b) of this chapter.
    (ii) The evaluation specified as the minimum evaluation permitted 
for that disability under the Schedule for Rating Disabilities in part 
4 of this chapter.
    (iii) Zero percent if there is neither an evaluation protected 
under the provisions of Sec.  3.951 of this chapter nor a minimum 
evaluation specified in the Schedule for Rating Disabilities in part 4 
of this chapter.
    Cross Reference: See Sec.  3.344 of this chapter, ``Stabilization 
of disability evaluations.''
    (d) Advance notice of proposed discontinuance or reduction--(1) 
Notice. If VA proposes to discontinue or reduce payment under paragraph 
(b) or (c) of this section, VA will notify the beneficiary by letter of 
its intended action. The letter must include the date on which the 
proposed discontinuance or reduction will be effective, and the 
beneficiary's procedural rights. See Sec. Sec.  5.80 through 5.83.
    (2) Time period during which the beneficiary must respond. No more 
than 60 days after the date of VA's notice, VA must receive either 
notification that the beneficiary will report for reexamination or 
evidence showing that VA should not discontinue or reduce payments. If 
VA receives notification that the beneficiary will report for 
reexamination, it will schedule a reexamination. If VA receives 
evidence showing that VA should not discontinue or reduce payments, it 
will not do so.
    (3) No response or inadequate response. If VA does not receive the 
notification or evidence required by paragraph (d)(2) of this section, 
VA will take the action described in the letter referred to in 
paragraph (d)(1) of this section. The action will be effective on the 
date identified in the letter or the day after the date of the last 
payment made by VA to the beneficiary, whichever is later.
    (4) Hearing. The beneficiary may request a hearing to challenge 
VA's proposed adverse action as provided in Sec.  5.82(f). If, within 
30 days after the date on the notice letter, VA does not receive the 
beneficiary's request for a hearing, then VA will discontinue or reduce 
payments effective on the date the notice letter specified or the date 
of VA's last payment, whichever is later, unless evidence is presented 
which warrants a different determination.
    (5) Rescheduled reexamination. The beneficiary may ask VA to 
schedule another date for reexamination, either instead of or in 
addition to asking for a hearing. If VA receives the request to 
reschedule before the payments are discontinued or reduced, VA will 
halt its action to discontinue or reduce payments and will schedule a 
new reexamination date. VA will notify the beneficiary that if he or 
she fails to report for the rescheduled reexamination, then VA will 
immediately discontinue or reduce the payments as of the date of the 
last payment.
    (e) Resumption of payments. If VA discontinues or reduces payments 
for failure to report for a reexamination, VA will issue a new decision 
after the beneficiary reports for a VA reexamination. VA will notify 
the beneficiary of any period of time for which it could not pay 
benefits at the previous level and the reason(s) why, and identify the 
period of time for which it has resumed paying such benefits.
    (f) Examples of good cause. Examples of good cause for failure to 
report for a VA examination or reexamination include a claimant's or 
beneficiary's illness or hospitalization, and the death of an immediate 
family member. VA will determine on a case-by-case basis whether good 
cause is established.

(Authority: 38 U.S.C. 501)


[[Page 24691]]




Sec.  5.104  Certifying continuing eligibility to receive benefits.

    Except as otherwise provided, the following rules govern the 
certification of continuing eligibility.
    (a) Responsibility to certify continuing eligibility upon request. 
Each beneficiary, if requested to do so by VA, must certify whether the 
factual basis that established entitlement to benefits still exists. 
The requested certification may concern marital status, income, number 
of dependents, or any other fact affecting entitlement to a benefit or 
the amount of benefits payable. VA must receive the beneficiary's 
certification, including any requested information, not later than 60 
days after the date of VA's request.
    (b) If VA does not receive the certification within 60 days. If VA 
does not receive the requested certification within 60 days after the 
date of VA's request, VA will assume that the fact(s) about which the 
certification was requested ceased to exist as of the end of the month 
in which VA received the last evidence of record establishing or 
confirming the fact(s).
    (c) Additional 60 days provided. If VA does not receive the 
requested certification within 60 days after the date of VA's request, 
VA will notify, in writing, the beneficiary that VA proposes to reduce 
or discontinue the benefits and will allow the beneficiary 60 days in 
which to provide VA with the required certification. The notice must 
include the effective date of the proposed reduction or discontinuance. 
If the beneficiary does not provide the required certification within 
the additional 60 days, VA will reduce or discontinue the benefit, 
according to the appropriate effective date provisions of Sec. Sec.  
3.500 through 3.504 of this chapter in effect on the date the 
eligibility factor(s) is considered to have ceased to exist.
    (d) VA action when the evidence is received. When the certification 
requested is provided, VA will adjust the benefits, if necessary, 
according to the information provided and the other evidence in the 
claims file.

(Authority: 38 U.S.C. 501)


[FR Doc. 05-9230 Filed 5-9-05; 8:45 am]
BILLING CODE 8320-01-P