[Federal Register Volume 70, Number 125 (Thursday, June 30, 2005)]
[Proposed Rules]
[Pages 37723-37726]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-12864]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 19

RIN 2900-AL97


Board of Veterans' Appeals: Clarification of a Notice of 
Disagreement

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its 
regulations governing appeals to the Board of Veterans' Appeals (Board) 
to clarify the actions an agency of original jurisdiction must take to 
determine whether a written communication from a claimant that is 
ambiguous in its purpose is intended to be a Notice of Disagreement 
with an adverse claims decision.

DATES: Comments must be received on or before August 29, 2005.

ADDRESSES: Written comments may be submitted by: mail or hand-delivery 
to Director, Regulations Management (00REG1), Department of Veterans 
Affairs, 810 Vermont Ave., NW., Room 1068, Washington, DC 20420; fax to 
(202) 273-9026; e-mail to [email protected]; or, through http://www.regulations.gov. Comments should indicate that they are submitted 
in response to ``RIN 2900-AL97.'' 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: 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 is the component of VA that 
decides appeals from denials of claims for veterans' benefits rendered 
by VA agencies of original jurisdiction. The Board is under the 
administrative control and supervision of a Chairman directly 
responsible to the Secretary of Veterans Affairs. 38 U.S.C. 7101.
    An agency of original jurisdiction (AOJ) makes the initial decision 
on a claim for VA benefits. An AOJ is typically one of VA's 57 regional 
offices in the case of benefits administered by the Veterans Benefits 
Administration (VBA), or a VA Medical Center in the case of benefits 
administered by the Veterans Health Administration (VHA). A claimant 
who wishes to appeal the AOJ's decision to the Board must file a timely 
Notice of Disagreement (NOD) with the AOJ that decided the claim. We 
propose an amendment to the rules governing NODs to clarify the actions 
an AOJ must take to determine whether a written communication received 
from a claimant, which is ambiguous in its purpose, is intended to be 
an NOD.

[[Page 37724]]

    When a claimant files a written communication that meets the 
requirements of 38 CFR 20.201, that communication is an NOD. The AOJ 
must respond to the NOD by reviewing the claim and determining whether 
additional development of the evidence to substantiate the claim is 
warranted. If the AOJ cannot grant the claim after this review and 
development process, it issues a Statement of the Case (SOC) to the 
claimant, identifying and summarizing the evidence pertinent to the 
decision on the issue(s) with which the claimant has expressed 
disagreement. The SOC also provides the claimant with a citation to the 
laws and regulations that govern the decision made on the claim, and 
explains how those laws were applied to the facts of the claim. See 38 
U.S.C. 7105(d)(1). The SOC is issued to assist the claimant in 
preparing his or her substantive appeal. See 38 CFR 19.29.
    On occasion, an AOJ receives from a claimant a written statement 
that is unclear as to whether the claimant seeks to initiate an appeal 
from an adverse AOJ decision, or only a portion of an adverse AOJ 
decision, or one of several AOJ decisions. Difficulty in interpreting a 
document is particularly likely to occur when the AOJ has denied 
multiple claims in one decision document. Currently, 38 CFR 19.26 
requires the AOJ to contact a claimant to request clarification if an 
NOD ``is received following a multiple-issue determination and it is 
not clear which issue, or issues, the claimant desires to appeal.'' We 
propose to amend 38 CFR 19.26 to require the AOJ to contact the 
claimant if the AOJ is uncertain as to whether the claimant intends to 
initiate the appellate process by the submission of a document which is 
not clear as to this intent on its face.
    We propose to designate the first sentence of current Sec.  19.26 
as Sec.  19.26(a), and to reorganize and rewrite the remaining 
sentences as separate paragraphs in order to distinguish the different 
elements of the regulation.
    We propose to restate the second sentence of current Sec.  19.26 
with additional explanation, and designate it as Sec.  19.26(b). In 
this paragraph (b), we propose to state that if the AOJ receives a 
written communication from a claimant that leaves the AOJ uncertain as 
to whether the claimant intends to initiate the appellate process, or 
as to which of multiple adverse determinations the claimant wishes to 
appeal, the AOJ must contact the claimant, and the claimant's 
representative, if any, to request clarification. The AOJ would also 
inform the claimant that VA will not consider the unclear communication 
to be an NOD unless the claimant timely responds as described in Sec.  
19.26(c). Proposed Sec.  19.26(b) would apply in cases where the AOJ 
has denied one claim, and where the AOJ has made ``multiple-issue 
determination[s],'' whereas the current rule applies only in the latter 
case.
    With regard to the ``multiple-issue determination[s]'' current 
rule, Sec.  19.26 states that ``clarification sufficient to identify 
the issue, or issues, being appealed should be requested.'' We propose 
to change ``should'' to ``will,'' in order to emphasize the mandatory 
nature of the duty. We propose to state in paragraph (b) that VA will 
inform the claimant that if the claimant does not respond to the 
request for clarification within the time period described in Sec.  
19.26(c), the communication from the claimant will not be considered to 
be an NOD as to any adverse decision for which clarification was 
requested but not obtained.
    We propose to establish a limit to the period of time in which the 
claimant may respond to a request for clarification. Paragraph (c) 
would require the claimant to respond, either orally or in writing, to 
the AOJ's request for clarification within the later of the following 
two dates: (1) 60 days after the date of mailing of the AOJ's request 
for clarification, or (2) one year after the date of mailing of notice 
of the adverse decision being appealed (60 days for simultaneously 
contested claims). Under 38 U.S.C. 7105(b)(1) claimants have one year 
to initiate an appeal (in all but simultaneously contested claims) 
after the AOJ issues an initial adverse decision. Thus, the time limit 
that we propose would not abridge the statutory period for initiating 
an appeal. Moreover, by allowing a response to be alternatively filed 
within 60 days after the date the AOJ requests clarification, or within 
one year after the date of mailing of notice of the adverse decision 
being appealed, we have provided the claimant with a reasonable period 
in which to respond in the event VA requests clarification either 
within the last 60 days of the one-year appeal period, or later. We 
believe that 60 days is a reasonable time frame in which to expect the 
claimant to respond.
    Because there can only be one valid NOD, the written communication 
from the claimant that prompts the AOJ to request clarification will be 
considered to be a valid NOD if the claimant subsequently provides the 
requested clarification. See Hamilton v. Brown, 39 F3d 1574 (1994) 
(holding that there may only be one valid NOD in each appeal). For 
purposes of calculating all subsequent filing deadlines, the date of 
the single NOD must be the date the first communication indicating 
disagreement, albeit ambiguous, is received at the AOJ.
    We propose a new paragraph (d), derived from the last sentence of 
current Sec.  19.26, which provides that upon receipt of clarification 
of the claimant's intent to file an NOD, the AOJ will undertake any 
necessary review and development action and prepare a Statement of the 
Case pursuant to Sec.  19.29, unless the NOD has been resolved by 
granting the benefit(s) sought on appeal or the NOD is withdrawn by the 
claimant or his or her representative.
    We propose in paragraph (e) to state that references to the 
``claimant'' in Sec.  19.26 include reference to the claimant and his 
or her representative, if any, as well as to his or her fiduciary, if 
any. This paragraph simply provides a short-hand reference for purposes 
of readability. We envision that the AOJ will contact any of these 
parties when clarification of an NOD is required. Similarly, any may 
respond to the request. Once a clarifying response is received from one 
of these parties, further contact will not be necessary. Thus multiple 
contacts and responses are not required and would likely prove 
impractical. Contact for the purpose of seeking clarification would 
cease as soon as clarification is received from one of the authorized 
parties or when the potential sources for clarification have been 
exhausted. Proposed paragraph (e) would not require VA to contact both 
the claimant and the representative if, after contacting one of the two 
parties, VA is no longer unsure as to whether the claimant had intended 
to file an NOD. If, after receiving a response from one of the parties, 
VA is still not able to determine whether the document filed was 
intended as an NOD, VA will contact another party.
    We propose to amend 38 CFR 19.27 only to clarify that the 
procedures for an administrative appeal are intended as a remedy in the 
event any intra-agency dispute remains after the procedures set forth 
in Sec.  19.26 have been followed, as to whether a written 
communication expresses an intent to appeal or as to which denied 
claims the claimant wants to appeal. We anticipate that administrative 
appeals of this nature will occur only rarely.

Unfunded Mandates

    The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that 
agencies prepare an assessment of anticipated costs and benefits before 
developing any rule that may result in an expenditure

[[Page 37725]]

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.

Executive Order 12866

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

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed rule would not 
have a significant economic impact on a substantial number of small 
entities as they are defined in the Regulatory Flexibility Act, 5 
U.S.C. 601-612. Only VA beneficiaries could be directly affected. 
Therefore, pursuant to 5 U.S.C. 605(b), this proposed rule is exempt 
from the initial and final regulatory flexibility analysis requirements 
of sections 603 and 604.

Paperwork Reduction Act

    Proposed 38 CFR 19.26, which is set forth in full in the proposed 
regulatory text portion of this document, and current 38 CFR 20.201 
contain collections of information under the Paperwork Reduction Act of 
1995 (44 U.S.C. 3501-3521). These provisions set forth procedures for 
initiating an appeal to the Board of Veterans' Appeals, including the 
type of information that must be contained in an NOD. As required under 
section 3507(d) of the Act, VA has submitted a copy of this proposed 
rulemaking action to the Office of Management and Budget (OMB) for its 
review of the collection of information.
    OMB assigns control numbers to collections of information it 
approves. VA may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number.
    Title: Notice of Disagreement and Clarification of Notice of 
Disagreement.
    Summary of collection of information: Under 38 CFR 20.302, a 
claimant who wishes to appeal the AOJ's decision to the Board must file 
a NOD with the AOJ that decided the claim within one year from the date 
that the AOJ mails notice of the determination to him or her. The 
provisions of 38 CFR 20.201 require that an NOD must be a written 
communication from a claimant or his or her representative expressing 
dissatisfaction or disagreement with an adjudicative determination by 
the AOJ and a desire to contest the result. Proposed 38 CFR 19.26 
provides that AOJs must seek clarification from a claimant if an 
unclear communication that may or may not constitute an NOD is 
received.
    Description of the need for information and proposed use of 
information: The first element of a complete appeal to the Board is an 
NOD. The NOD is the mechanism that a claimant uses to inform the VA of 
his or her dissatisfaction with a decision denying a VA benefit. After 
receiving an NOD, VA is required to reexamine the denied claim, 
performing additional evidentiary development is warranted. If the 
claim cannot be granted at that stage, VA initiates the appellate 
processing by issuing a Statement of the Case to the claimant, 
informing the claimant of the laws and regulations governing his or her 
claim, and the basis for the denial of that claim.
    Description of likely respondents: VA benefits claimants who have 
received a denial decision from an Agency of Original Jurisdiction.
    Estimated number of respondents: 108,931 NODs were filed in fiscal 
year 2004. The number of NODs filed in future years will depend upon 
the number of dissatisfied claimants who wish to pursue the appellate 
process.
    Estimated frequency of responses: This information is collected on 
a ``one-time'' basis.
    Estimated average burden per collection: Respondents have wide 
discretion in the amount of time spent in preparing the notice of 
disagreement. They may simply identify, in writing, the issues with 
which they are in disagreement. Some may add a few sentences explaining 
why they are in disagreement. Most respondents use this approach. On 
the other hand, a respondent may write several pages explaining why he 
or she is in disagreement with the decision. With this in mind, the 
Board's best estimate would be that an average of one hour is spent in 
preparation of the notice of disagreement.
    Estimated total annual reporting and recordkeeping burden: The 
estimated total annual reporting burden is approximately 108,931 hours. 
This information collection imposes no recordkeeping requirement. There 
should be no costs to respondents. No ongoing accumulation of 
information, or special purchase of services, supplies or equipment, is 
required.
    The Department considers comments by the public on proposed 
collections of information in:
     Evaluating whether the proposed collections of information 
are necessary for the proper performance of the functions of the 
Department, including whether the information will have practical 
utility;
     Evaluating the accuracy of the Department's estimate of 
the burden of the proposed collections of information, including the 
validity of the methodology and assumptions used;
     Enhancing the quality, usefulness, and clarity of the 
information to be collected; and
     Minimizing the burden of the collections of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of responses.
    Written comments on the collections of information should be 
submitted to Sue Hamlin, Board of Veterans' Appeals (01C), Department 
of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, or 
e-mail to [email protected]. Comments should indicate that they are in 
response to ``RIN 2900-AL97,'' and must be received on or before August 
29, 2005.

Catalog of Federal Domestic Assistance Numbers

    There is no Catalog of Federal Domestic Assistance number for this 
proposed rule.

List of Subjects in 38 CFR Part 19

    Administrative practice and procedure, Claims, Veterans.

    Approved: March 22, 2005.
R. James Nicholson,
Secretary of Veterans Affairs.
    For the reasons set forth in the preamble, we propose to amend 38 
CFR part 19 as follows:

PART 19--BOARD OF VETERANS' APPEALS: APPEALS REGULATIONS

    1. The authority citation for part 19 continues to read as follows:

    Authority: 38 U.S.C. 501(a), unless otherwise noted.

    2. Section 19.26 is revised to read as follows:


Sec.  19.26  Action by agency of original jurisdiction on Notice of 
Disagreement.

    (a) Initial action. When a claimant files a timely Notice of 
Disagreement (NOD), the agency of original jurisdiction (AOJ) must 
reexamine the claim and determine whether additional review or 
development is warranted.
    (b) Unclear communication or disagreement. If within one year after 
issuing an adverse decision (or 60 days for simultaneously contested 
claims), the AOJ receives a written

[[Page 37726]]

communication from the claimant expressing dissatisfaction or 
disagreement with the adverse decision, but the AOJ cannot clearly 
identify that communication as expressing an intent to appeal, or the 
AOJ cannot identify which denied claim(s) the claimant wants to appeal, 
then the AOJ will contact the claimant to request clarification of the 
claimant's intent. In this request for clarification, the AOJ will 
explain that if the claimant does not respond to the request within the 
time period described in paragraph (c) of this section, the earlier, 
unclear communication will not be considered an NOD as to any adverse 
decision for which clarification was requested.
    (c) Response required from claimant--(1) Time to respond. The 
claimant must respond to the AOJ's request for clarification within the 
later of the following dates:
    (i) 60 days after the date of mailing of the AOJ's request for 
clarification; or
    (ii) One year after the date of mailing of notice of the adverse 
decision being appealed (60 days for simultaneously contested claims).
    (2) Failure to respond. If the claimant fails to provide a timely 
response, the previous communication from the claimant will not be 
considered an NOD as to any claim for which clarification was 
requested. The AOJ will not consider the claimant to have appealed the 
decision(s) on any claim(s) as to which clarification was requested and 
not received.
    (d) Action following clarification. When clarification of the 
claimant's intent to file an NOD is obtained, the AOJ will reexamine 
the claim and determine whether additional review or development is 
warranted. If no further review or development is required, or after 
necessary review or development is completed, the AOJ will prepare a 
Statement of the Case pursuant to Sec.  19.29 unless the disagreement 
is resolved by a grant of the benefit(s) sought on appeal or the NOD is 
withdrawn by the claimant.
    (e) Definition. For the purpose of the requirements in paragraphs 
(a) through (d) of this section, references to the ``claimant'' include 
reference to the claimant and his or her representative, if any, as 
well as to his or her fiduciary, if any.

(Authority: 38 U.S.C. 501, 7105, 7105A)

    3. Section 19.27 is revised to read as follows:


Sec.  19.27  Adequacy of Notice of Disagreement questioned within the 
agency of original jurisdiction.

    If, after following the procedures set forth in 38 CFR 19.26, there 
remains within the agency of original jurisdiction a question as to 
whether a written communication expresses an intent to appeal or as to 
which denied claims a claimant wants to appeal, the procedures for an 
administrative appeal, as set forth in 38 CFR 19.50-19.53, must be 
followed.

(Authority: 38 U.S.C. 501, 7105, 7106)

[FR Doc. 05-12864 Filed 6-29-05; 8:45 am]
BILLING CODE 8320-01-U