[Federal Register Volume 72, Number 57 (Monday, March 26, 2007)]
[Proposed Rules]
[Pages 14056-14059]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-5435]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 19 and 20

RIN 2900-AM49


Supplemental Statement of the Case

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its 
regulations regarding the time limit for filing a response to a 
Supplemental Statement of the Case in appeals to the Board of Veterans' 
Appeals (Board). We propose to change the response period

[[Page 14057]]

from 60 days to 30 days. The purpose of this change is to improve 
efficiency in the appeals process and reduce the time that it takes to 
resolve appeals while still providing appellants with a reasonable 
period to respond to a Supplemental Statement of the Case.

DATES: Comments must be received by VA on or before May 25, 2007.

ADDRESSES: Written comments may be submitted through http://www.Regulations.gov; by mail or hand-delivery to the Director, 
Regulations Management (00REG), Department of Veterans Affairs, 810 
Vermont Avenue, NW., Room 1068, Washington, DC 20420; or by fax to 
(202) 273-9026. Comments should indicate that they are submitted in 
response to ``RIN 2900-AM49--Supplemental Statement of the Case.'' 
Copies of 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. In addition, during the 
comment period, comments may be viewed online through the Federal 
Docket Management System (FDMS) at http://www.Regulations.gov.

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 an administrative body within 
VA that decides appeals from denials by Agencies of Original 
Jurisdiction (AOJs) of claims for veterans' benefits, as well as 
occasional cases of original jurisdiction. The Board is under the 
administrative control and supervision of a Chairman who is directly 
responsible to the Secretary of Veterans Affairs. 38 U.S.C. 7101(a). 
The Board's Appeals Regulations and Rules of Practice are found at 38 
CFR parts 19 and 20.
    An appeal to the Board is initiated by a timely filed Notice of 
Disagreement and completed (also called ``perfected'') by a timely 
filed Substantive Appeal after a Statement of the Case is furnished. 38 
U.S.C. 7105(a); 38 CFR 20.200. Under applicable law, the AOJ provides 
notice of any decision made by VA affecting the payment of benefits or 
the granting of relief. 38 U.S.C. 5104; 38 CFR 3.103(b)(1). The 
claimant has one year from the date of mailing that notice to file a 
Notice of Disagreement. 38 U.S.C. 7105(b)(1); 38 CFR 20.302(a). 
Following receipt of a timely Notice of Disagreement, the AOJ will 
prepare a Statement of the Case, which must include: (1) A summary of 
the evidence in the case pertinent to the issue or issues with which 
disagreement has been expressed; (2) a citation to pertinent laws and 
regulations and a discussion of how such laws and regulations affected 
the AOJ's decision; and (3) the AOJ decision on each issue and a 
summary of the reasons for such decision. 38 U.S.C. 7105(d)(1); 38 CFR 
19.29. Except in cases of simultaneously contested claims, the claimant 
has 60 days to file a Substantive Appeal in response to the Statement 
of the Case or the remainder of the one-year period from the date of 
notice of the decision being appealed, whichever period ends later. 38 
U.S.C. 7105(d)(3); 38 CFR 20.302(b)(1). In simultaneously contested 
claims, a Substantive Appeal and any response to a Supplemental 
Statement of the Case must be filed within 30 days from the date of 
mailing of the Statement of the Case and Supplemental Statement of the 
Case, respectively. 38 U.S.C. 7105, 7105A(b); 38 CFR 20.501(b) and (c).
    Often, the AOJ receives additional evidence in support of the 
appeal after the Statement of the Case was issued but before the appeal 
is certified for appellate review and transferred to the Board. If the 
additional evidence is new (i.e., not duplicative of evidence 
previously of record that was discussed in the Statement of the Case or 
a prior Supplemental Statement of the Case) and relevant to the appeal, 
the AOJ will prepare a document known as a Supplemental Statement of 
the Case and furnish a copy to the appellant and his or her 
representative, if any. 38 CFR 19.31(b)(1), 19.37(a). The purpose of a 
Supplemental Statement of the Case is to inform the appellant of any 
material changes in, or additions to, the information included in the 
Statement of the Case or any prior Supplemental Statement of the Case. 
38 CFR 19.31(a).
    A Supplemental Statement of the Case will also be furnished if the 
AOJ discovers a material defect in the Statement of the Case or a prior 
Supplemental Statement of the Case, or determines that for any other 
reason the Statement of the Case or a prior Supplemental Statement of 
the Case is inadequate. 38 CFR 19.31(b). Additionally, if an appeal is 
remanded by the Board to the AOJ and a claim cannot be granted on 
remand, a Supplemental Statement of the Case is generally provided to 
the appellant regarding that issue. 38 CFR 19.31(c), 19.38. Thereafter, 
the case is returned to the Board.
    Currently, 38 CFR 19.38, 20.302(c), and 20.303 provide information 
regarding the Supplemental Statement of the Case. These regulations 
indicate that appellants are allowed a period of 60 days from the date 
of mailing of the Supplemental Statement of the Case to submit a 
response. Moreover, under 38 CFR 20.303, an extension of the 60-day 
period for responding to the Supplemental Statement of the Case, when 
such a response is required, may be granted for good cause. We propose 
to change the 60-day period in each of these regulations to 30 days, to 
help expedite the appeals process while still providing appellants with 
a reasonable period to respond. We believe that the beneficial effects 
of the amendment will significantly outweigh any potential adverse 
effects on appellants and we are soliciting comments on this point.
    Unlike the Statement of the Case, which must contain specific 
information about the evidence and issues in the case, the applicable 
laws and regulations, and the reasons for each determination, a 
Supplemental Statement of the Case is not required to contain the same 
degree of detail. As its name implies, a Supplemental Statement of the 
Case is a supplement to the Statement of the Case. The document is 
intended to inform the appellant of any material changes to, or 
additions to, the information included in the Statement of the Case. 38 
CFR 19.31(a). In no case will a Supplemental Statement of the Case be 
used to announce AOJ decisions on issues that were not previously 
addressed in a Statement of the Case. 38 CFR 19.31(a). Therefore, due 
to the limited purpose of a Supplemental Statement of the Case, less 
time should be needed to respond to a Supplemental Statement of the 
Case as compared to the Statement of the Case. In addition, under this 
proposed rule change, an extension of the 30-day period for responding 
to a Supplemental Statement of the Case may still be granted for good 
cause. 38 CFR 20.303.
    Significantly, provided that a Substantive Appeal has been timely 
filed in accordance with 38 CFR 20.302(b), a response to a Supplemental 
Statement of the Case is strictly optional and is not required to 
perfect an appeal. 38 CFR 20.302(c). If there is no response to the 
Supplemental Statement of the Case within the allowed period, any 
remaining processing of the case can be completed and the appeal can be 
certified and transferred to the Board. In practice, VA adjudicators 
will hold the case for the full response period to allow the appellant 
every opportunity to respond to the Supplemental Statement of the Case. 
By reducing the response

[[Page 14058]]

period from 60 days to 30 days, VA can allow the case to move forward 
faster than under current regulations, thus helping expedite the 
adjudication of appealed cases. In addition to the 30-day period to 
respond to the Supplemental Statement of the Case, once his or her 
appeal has been certified and transferred to the Board, the appellant 
typically still has 90 days to submit further evidence. 38 CFR 
20.1304(a). Although 38 CFR 20.1304(a) states that the appellant has 90 
days or until the Board promulgates a decision to submit evidence, as a 
practical matter, with the exception of a limited class of cases, such 
as cases that were advanced on the Board's docket pursuant to 38 U.S.C. 
7107(a), the Board generally does not decide cases until after the 90-
day period has passed. This effectively provides most appellants with 
the full 90 days to submit additional evidence. Moreover, under Sec.  
20.1304(b), even after the 90-day period expires an appellant may still 
move to submit additional evidence if he or she can demonstrate good 
cause for the delayed submission.
    This proposed rule would not affect the statutorily provided 60-day 
period to respond to a Statement of the Case. Rather, this proposed 
rule change is confined to the Supplemental Statement of the Case, 
which is a document created solely by VA regulation to describe VA's 
AOJ activity when, most commonly, after a Statement of the Case was 
issued but before the appeal is certified and transferred to the Board, 
non-duplicative evidence is received that is relevant to the issue or 
issues on appeal, or when the AOJ plans to return a case to the Board 
following a Board remand for further development.
    For the reasons stated above, we propose to change the 60 day 
period to respond to a Supplemental Statement of the Case to 30 days in 
38 CFR 19.38, 20.302(c), and 20.303.

Paperwork Reduction Act

    This document contains no provisions constituting a collection of 
information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

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. By reducing the period allowed for submitting an 
optional response to a Supplemental Statement of the Case to 30 days, 
this proposed rule would affect claimants for VA benefits who appeal to 
the Board. It may also affect a few small organizations appealing to 
the Board, including attorneys appealing the cancellation of their 
accreditation by the VA General Counsel and accredited attorneys 
appealing decisions affecting payment of their fees out of past-due 
benefits awarded to VA claimants. This proposed rule may also affect a 
few small governmental jurisdictions appealing to the Board, such as 
state agencies appealing VA decisions on per diem payments for services 
provided to veterans in state homes.
    However, reducing the period permitted for submitting an optional 
response to a Supplemental Statement of the Case would not have a 
significant economic impact on a substantial number of these small 
entities. Rather, it would expedite the processing of their appeals to 
the Board. Therefore, pursuant to 5 U.S.C. 605(b), this proposed rule 
is exempt from the initial and final regulatory flexibility analysis 
requirement of 5 U.S.C. 603 and 604.

Executive Order 12866

    Executive Order 12866 directs agencies to assess all costs and 
benefits of available regulatory alternatives and, when regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety, 
and other advantages; distributive impacts; and equity). The Executive 
Order classifies a ``significant regulatory action,'' requiring review 
by the Office of Management and Budget (OMB) unless OMB waives such 
review, as any regulatory action that is likely to result in a rule 
that may: (1) Have an annual effect on the economy of $100 million or 
more or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities; (2) Create a serious inconsistency or otherwise interfere 
with an action taken or planned by another agency; (3) Materially alter 
the budgetary impact of entitlements, grants, user fees, or loan 
programs or the rights and obligations of recipients thereof; or (4) 
Raise novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order.
    The economic, interagency, budgetary, legal, and policy 
implications of this proposed rule have been examined and it has been 
determined not to be a significant regulatory action 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 issuing any rule that may result in an expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector of $100 million or more (adjusted annually for 
inflation) in any one year. This proposed rule would have no such 
effect on State, local, and tribal governments, or on the private 
sector.

Catalog of Federal Domestic Assistance Numbers

    The Catalog of Federal Domestic Assistance program numbers and 
titles for this proposal are 64.100, Automobiles and Adaptive Equipment 
for Certain Disabled Veterans and Members of the Armed Forces; 64.101, 
Burial Expenses Allowance for Veterans; 64.102, Compensation for 
Service-Connected Deaths for Veterans' Dependents; 64.103, Life 
Insurance for Veterans; 64.104, Pension for Non-Service-Connected 
Disability for Veterans; 64.105, Pension to Veterans Surviving Spouses, 
and Children; 64.106, Specially Adapted Housing for Disabled Veterans; 
64.109, Veterans Compensation for Service-Connected Disability; 64.110, 
Veterans Dependency and Indemnity Compensation for Service-Connected 
Death; 64.114, Veterans Housing-Guaranteed and Insured Loans; 64.115, 
Veterans Information and Assistance; 64.116, Vocational Rehabilitation 
for Disabled Veterans; 64.117, Survivors and Dependents Educational 
Assistance; 64.118, Veterans Housing-Direct Loans for Certain Disabled 
Veterans; 64.119, Veterans Housing-Manufactured Home Loans; 64.120, 
Post-Vietnam Era Veterans' Educational Assistance; 64.124, All-
Volunteer Force Educational Assistance; 64.125, Vocational and 
Educational Counseling for Servicemembers and Veterans; 64.126, Native 
American Veteran Direct Loan Program; 64.127, Monthly Allowance for 
Children of Vietnam Veterans Born with Spina Bifida; and 64.128, 
Vocational Training and Rehabilitation for Vietnam Veterans' Children 
with Spina Bifida or Other Covered Birth Defects.

List of Subjects in 38 CFR Parts 19 and 20

    Administrative practice and procedure, Claims, Veterans.


[[Page 14059]]


    Approved: November 30, 2006.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.

    For the reasons set forth in the preamble, VA proposes to amend 38 
CFR parts 19 and 20 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.

Subpart B--Appeals Processing by Agency of Original Jurisdiction


Sec.  19.38  [Amended]

    2. Section 19.38 is amended by removing ``60-day'' and adding, in 
its place, ``30-day''.

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

    3. The authority citation for part 20 continues to read as follows:

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

Subpart D--Filing


Sec.  20.302  [Amended]

    4. Section 20.302(c) is amended by removing ``60'' and adding, in 
its place, ``30''.


Sec.  20.303  [Amended]

    5. Section 20.303 is amended by removing ``or the 60-day period for 
responding to a Supplemental Statement of the Case'' and adding, in its 
place, ``or the 30-day period for responding to a Supplemental 
Statement of the Case''.

[FR Doc. E7-5435 Filed 3-23-07; 8:45 am]
BILLING CODE 8320-01-P