[Federal Register Volume 73, Number 72 (Monday, April 14, 2008)]
[Proposed Rules]
[Pages 20136-20143]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-7898]



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Part III





Department of Veterans Affairs





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38 CFR Part 5



 VA Benefit Claims; Proposed Rule

  Federal Register / Vol. 73, No. 72 / Monday, April 14, 2008 / 
Proposed Rules  

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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 5

RIN 2900-AM16


VA Benefit Claims

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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

DATES: Comments must be received by VA on or before June 13, 2008.

ADDRESSES: Written comments may be submitted through 
www.Regulations.gov; by mail or hand-delivery to Director, Regulations 
Management (00REG), Department of Veterans Affairs, 810 Vermont Ave., 
NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026. 
(This is not a toll-free number.) Comments should indicate that they 
are submitted in response to ``RIN 2900-AM16-VA Benefit Claims.'' 
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) 461-4902 for an appointment. (This is not a toll-free 
number.) In addition, during the comment period, comments may be viewed 
online through the Federal Docket Management System (FDMS) at 
www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: William F. Russo, Director of 
Regulations Management (00REG), Department of Veterans Affairs, 810 
Vermont Avenue, NW., Washington, DC 20420, (202) 461-4902. (This is not 
a toll-free number.)

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 claims. 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 This Notice of Proposed Rulemaking
Table Comparing Proposed Part 5 Rules With Current Part 3 Rules
Content of Proposed Regulations

VA Benefit Claims

5.50 Applications Furnished by VA
5.51 Filing a Claim for Disability Benefits
5.52 Filing a Claim for Death Benefits
5.53 Claims for Benefits Under 38 U.S.C. 1151 for Disability or 
Death Due to VA Treatment or Vocational Rehabilitation
5.54 Informal Claims
5.55 Claims Based on New and Material Evidence
5.56 Report of Examination or Hospitalization as Claim for Increase 
or To Reopen
5.57 Status of Claims
Endnote Regarding Amendatory Language
Paperwork Reduction Act of 1995
Regulatory Flexibility Act
Executive Order 12866
Unfunded Mandates
Catalog of Federal Domestic Assistance Numbers and Titles
List of Subjects in 38 CFR Part 5

Overview of New Part 5 Organization

    We plan to organize the new part 5 regulations so that most 
provisions governing a specific benefit are located in the same 
subpart, with general provisions pertaining to all compensation and 
pension benefits also grouped together. This organization will allow 
claimants, beneficiaries, and their representatives, as well as VA 
adjudicators, 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, general definitions, and general policy 
provisions for this part. This subpart was published as proposed on 
March 31, 2006.  See 71 FR 16464.
    ``Subpart B--Service Requirements for Veterans'' would include 
information regarding a veteran's military service, including the 
minimum service requirement, 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 first, concerning the duties of 
VA and the rights and responsibilities of claimants and beneficiaries, 
was published as proposed on May 10, 2005. See 70 FR 24680. The second 
NPRM, concerning general evidence requirements, effective dates, 
revision of decisions, and protection of existing ratings, was 
published as proposed on May 22, 2007. See 72 FR 28770. This document 
is the third of the three NPRMs that involve regulations concerning VA 
benefit claims.
    ``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. This 
subpart was published as proposed on September 20, 2006. See 71 FR 
55052.
    ``Subpart E--Claims for Service Connection and Disability 
Compensation'' would define service-connected disability compensation 
and service connection, including direct and secondary service 
connection. This subpart would inform readers how VA determines service 
connection and entitlement to disability compensation. 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 to its size. The first,

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concerning presumptions related to service connection, was published as 
proposed 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: Old-Law Pension, Section 306 Pension, and 
Improved 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 was 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. The 
portion concerning eligibility and entitlement requirements as well as 
effective dates for Improved Pension was published as proposed on 
September 26, 2007. See 72 FR 54776.
    ``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 was published as two separate NPRMs due to its 
size. The portion concerning accrued benefits, death compensation, 
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 was 
published as proposed on October 21, 2005. See 70 FR 61326.
    ``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. This subpart was published as proposed on March 9, 2007. See 
72 FR 10860.
    ``Subpart I--Benefits for Certain Filipino Veterans and Survivors'' 
would pertain to the various benefits available to Filipino veterans 
and their survivors. This subpart was published as proposed on June 30, 
2006. See 71 FR 37790.
    ``Subpart J--Burial Benefits'' would pertain to burial allowances.
    ``Subpart K--Matters Affecting the Receipt of Benefits'' would 
contain provisions regarding bars to benefits, forfeiture of benefits, 
and renouncement of benefits. This subpart was published as proposed on 
May 31, 2006. See 71 FR 31056.
    ``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 first, concerning payments to beneficiaries who are eligible 
for more than one benefit, was published as proposed on October 2, 
2007. See 72 FR 56136.
    The final subpart, ``Subpart M--Apportionments to Dependents and 
Payments to Fiduciaries and 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 for the Project, we cite the 
proposed part 5 section. We also include, in the relevant portion of 
the SUPPLEMENTARY INFORMATION, the Federal Register page where a 
proposed part 5 section published in an earlier NPRM may be found. 
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. If there is no part 3 
counterpart to a proposed part 5 regulation that has not yet been 
published, we have inserted ``[regulation that will be published in a 
future Notice of Proposed Rulemaking]'' where the part 5 regulation 
citation would be placed.
    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 a part of the Project, if the 
matter being commented on relates to both rulemakings.

Overview of This Notice of Proposed Rulemaking

    This NPRM pertains to VA benefits claims and related procedures. 
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 contained in these proposed regulations are the same 
as in their existing counterparts in 38 CFR part 3. However, a few 
substantive differences are proposed.

Table Comparing Proposed Part 5 Rules with Current Part 3 Rules

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

------------------------------------------------------------------------
                                            Based in whole or in part on
   Proposed part 5 section or paragraph       38 CFR part 3 section or
                                                      paragraph
------------------------------------------------------------------------
5.1--Application..........................  New.
5.1--Claim................................  3.1(p).
5.50......................................  3.150.
5.51......................................  3.151(a).
5.52......................................  3.152.
5.53......................................  3.154.
5.54......................................  3.155.
5.55......................................  3.156(a), 3.400 intro,
                                             (q)(2), (r).
5.56......................................  3.157.
5.57(a)...................................  New.
5.57(b)-(g)...............................  3.160.
------------------------------------------------------------------------

    Readers who use this table to compare the proposed provisions with 
the existing regulatory provisions, and who observe a substantive 
difference between them, should consult the text that appears later in 
this document for an explanation of significant changes in each 
regulation. Not every paragraph of every current part 3 section 
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

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part 5 provisions and also on our proposals to omit those part 3 
provisions from part 5.

Content of Proposed Regulations

General Provisions

Section 5.1 General Definitions
    We propose to further amend proposed Sec.  5.1 as published in 71 
FR 16464, 16473 (Mar. 31, 2006) [RIN 2900-AL87 General Provisions], to 
add definitions of ``application'' and ``claim'' to the general 
definitions in proposed Sec.  5.1. Current Sec.  3.1(p) and other part 
3 regulations use the terms ``claim'' and ``application'' 
interchangeably, which we believe might confuse the user about the 
intended difference between a claim and an application.
    We propose to define the term ``application'' in part 5 as follows: 
``Application means a specific form required by the Secretary that a 
claimant must file to apply for a benefit.'' We propose to use the term 
``application'' only when referring to a specific form that a claimant 
must file to apply for a benefit VA administers. By statute, a claim 
must be ``in the form prescribed by the Secretary.'' 38 U.S.C. 5101(a). 
Specifying that an application is ``a form required,'' rather than 
``prescribed,'' should help distinguish an application from a claim. 
Stating the definition of ``application'' in Sec.  5.1 would place it 
among other definitions applied generally to adjudication of 
entitlement to VA benefits.
    The term ``claim'' in part 5 would have the same meaning it 
currently has in part 3; no substantive change is intended. We propose 
to define ``claim'' as follows: ``Claim means a formal or informal 
communication in writing requesting a determination of entitlement, or 
evidencing a belief in entitlement, to a VA benefit.'' Stating the 
definition of ``claim'' in Sec.  5.1 would place it among other 
definitions generally applicable to adjudication of entitlement to VA 
benefits.

VA Benefit Claims

Section 5.50 Applications Furnished by VA
    Proposed Sec.  5.50 is based on current Sec.  3.150. It addresses 
situations where VA will send the appropriate application for VA 
benefits to a potential recipient of VA benefits. It has been slightly 
rewritten. The language is more active, and we have added subheadings 
to improve readability. Instead of referring to an ``application 
form,'' proposed Sec.  5.50 refers to an ``application'' because, 
according to the proposed definition of ``application,'' an application 
is a form. To refer to an application form would be redundant of the 
definition of application. Section 3.150 requires VA to provide the 
appropriate application ``upon request made in person or in writing by 
any person applying for benefits * * *.'' We propose to use the 
language of the statute in requiring that VA furnish the appropriate 
application upon request by any person ``claiming or applying for, or 
expressing an intent to claim or apply for'' a benefit VA administers. 
38 U.S.C. 5102(a). This is consistent with the law and proposed 
regulation that provides for informal claims. Id.; Sec.  5.54 of this 
NPRM. The change is clarifying, not substantive.
    In paragraph (b), we have inserted the word ``death'' before the 
words ``compensation'' and ``pension'' in the first sentence for 
clarification. The term ``pension'' in this context means ``death 
pension.'' The term ``compensation'' in this context means ``death 
compensation.''
    Paragraph (c) of proposed Sec.  5.50, which is based on 38 CFR 
3.150(c), is written to be consistent with proposed Sec.  5.53, which 
is based on 38 CFR 3.154. The list of circumstances to which 38 U.S.C. 
1151 currently applies is accurately stated in Sec.  3.154, while the 
list in Sec.  3.150(c) is outdated. We have written proposed Sec.  
5.50(c) to reflect accurately the scope of current 38 U.S.C. 1151.
Section 5.51 Filing a Claim for Disability Benefits
    Proposed Sec.  5.51 is based on current Sec.  3.151(a). (Paragraph 
(b) of current Sec.  3.151 has been included in Sec.  5.383, which was 
published as proposed on September 26, 2007. See 72 FR 54776, 54793-94 
[RIN 2900-AM04 Improved Pension].) The content of paragraph (a) of 
Sec.  3.151 is rewritten in plain language, and is split into two 
paragraphs, with appropriate headings, for improved readability.
Section 5.52 Filing a Claim for Death Benefits
    Proposed Sec.  5.52 is based on current Sec.  3.152. In proposed 
Sec.  5.52(a), we have changed the reference to Sec.  3.153 to proposed 
Sec.  5.131(a) (published as proposed on May 22, 2007, see 72 FR 28770, 
28785 [RIN 2900-AM01 General Evidence Requirements, Effective Dates, 
Revision of Decisions, and Protection of Existing Ratings]), and we 
have changed the reference to Sec.  3.400(c) to proposed Sec.  5.567 
(published as proposed on October 1, 2004, see 69 FR 59072, 59089-90 
[RIN 2900-AL71 Accrued Benefits, Death Compensation, and Special Rules 
Applicable Upon Death of a Beneficiary]).
    Paragraph (b) of proposed Sec.  5.52 is based on paragraph (b) of 
current Sec.  3.152 and is slightly rewritten and reorganized so that 
it is more readable. It addresses when VA will treat a claim for a 
certain death benefit as a claim for another death benefit as well. For 
example, VA will treat a claim for death compensation as a claim for 
death pension as well.
    Regarding accrued benefits, current Sec.  3.152(b) includes 
provisions for treating certain claims for death benefits as claims for 
accrued benefits as well. These provisions addressing claims for 
accrued benefits are not included in proposed Sec.  5.52(b) because a 
similar provision already appears in proposed Sec.  5.552(c), ``Claims 
for accrued benefits or benefits awarded, but unpaid at death,'' which 
was published as proposed on October 1, 2004. (See 69 FR 59072, 59086 
[RIN 2900-AL71 Accrued Benefits, Death Compensation, and Special Rules 
Applicable Upon Death of a Beneficiary]). Proposed Sec.  5.552(c) 
provides that any claim filed with VA for death pension, death 
compensation, or dependency and indemnity compensation will also be 
accepted as a claim for accrued benefits and, if applicable, for 
benefits awarded, but unpaid at death. Id. Thus, it is not necessary to 
include similar provisions in proposed Sec.  5.52.
    Paragraph (c) of proposed Sec.  5.52 is based on paragraph (c) of 
current Sec.  3.152 and is rewritten for improved readability. 
Appropriate subheadings have also been added. The last sentence of 
current Sec.  3.152(c)(1) states that ``[w]here the award to the 
surviving spouse is terminated by reason of her or his death, a claim 
for the child will be considered a claim for any accrued benefits which 
may be payable.'' For the reasons stated in the preceding paragraph, we 
propose not to repeat that rule in Sec.  5.52 because it would be 
redundant of the rule in proposed Sec.  5.552(c).
    Current Sec.  3.152(c)(1) cites 38 U.S.C. 5110(e). This citation is 
as authority for the regulation, not as a cross-reference. In proposed 
Sec.  5.52(c)(1) and (c)(2), we have moved this citation to the 
authority citation following Sec.  5.52.
    Current Sec.  3.152(c)(1) provides that a child must file a claim 
for dependency and indemnity compensation under certain circumstances. 
It has long been VA's practice to implement paragraphs (c)(3) and 
(c)(4) of that section as exceptions to the claim filing requirement of 
paragraph (c)(1) of that section.

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    The exception in Sec.  3.152(c)(3) applies when VA denies DIC to a 
surviving spouse. The exception in current paragraph (c)(4) applies 
when VA discontinues payment of death benefits to a surviving spouse 
because of the death or remarriage of the surviving spouse, or when a 
child becomes eligible for DIC by turning 18. In the circumstances 
described in current paragraph (c)(3), VA construes the surviving 
spouse's claim as the claim of the child named in the surviving 
spouse's claim. In the circumstances described in current paragraph 
(c)(4), VA converts the surviving spouse's claim into a claim on behalf 
of the child named in the surviving spouse's claim. VA construes or 
converts the surviving spouse's claim in the circumstances described in 
current paragraphs (c)(3) and (c)(4), respectively, if and only if any 
necessary evidence is submitted within 1 year after VA requests the 
evidence. Otherwise each child must file a new claim.
    These exceptions are stated explicitly in proposed Sec.  5.52(c)(1) 
and (c)(2). The exceptions are consistent with 38 U.S.C. Sec.  5110(e), 
because they construe the surviving spouse's claim as the child's claim 
in the circumstances described. Construed this way, the surviving 
spouse's claim satisfies the date of claim requirement of 5110(e).
    Current Sec.  3.152 uses the terms ``child'' and ``children'' 
interchangeably. In Sec.  5.52 we propose to use only the term 
``child'', which encompasses both the singular and plural, for 
consistency. No substantive change is intended.
Section 5.53 Claims for Benefits Under 38 U.S.C. 1151 for Disability or 
Death Due to VA Treatment or Vocational Rehabilitation
    Section 5.53 is based on current Sec.  3.154, pertaining to claims 
for benefits under 38 U.S.C. 1151 for disability or death due to 
treatment in a VA facility or due to a VA vocational rehabilitation 
program. Proposed Sec.  5.53 contains only minor stylistic changes, as 
well as a change in title. The new title is more accurate and 
descriptive. The cross-reference in proposed Sec.  5.53 differs from 
the cross-reference in current Sec.  3.154 in that only those 
provisions that apply to claims for benefits under 38 U.S.C. 1151 that 
are received by VA after September 30, 1997, are included. Current 
Sec. Sec.  3.358 and 3.800 apply to claims under 38 U.S.C. 1151(a) that 
VA received before October 1, 1997. Because part 5 will apply only to 
future claims, we will not repeat the provisions of current Sec. Sec.  
3.358 and 3.800 in part 5.
Section 5.54 Informal Claims
    Proposed Sec.  5.54 is based on current Sec.  3.155, pertaining to 
informal claims. Paragraph (a) of this section refers to an 
``application'' instead of an ``application form'' to be consistent 
with the proposed definition of ``application.'' To use plain language, 
we have changed the Latin expression, ``sui juris,'' in the phrase ``a 
claimant who is not sui juris'' to its English meaning, ``a claimant 
who does not have the capacity to manage his or her own affairs''. We 
intend no substantive change. Further, the references to Sec. Sec.  
3.151 and 3.152 have been changed to their proposed part 5 
counterparts, Sec. Sec.  5.51 and 5.52 of this NPRM, respectively.
    In paragraph (b), we have added the word ``recognized'' before 
``service organization'' and the word ``accredited'' before ``attorney 
or agent'' to be consistent with part 14 of this chapter. We have also 
made explicit that the recognized service organization or accredited 
individual submitting an informal claim must be the designated 
representative of the claimant ``as required by Sec.  14.631 of this 
chapter''.
Section 5.55 Claims Based on New and Material Evidence
    Proposed Sec.  5.55(a) is based on current Sec.  3.156(a). No 
changes are proposed to this provision. Paragraphs (b) and (c) of 
current Sec.  3.156 are not included in proposed Sec.  5.55. They have 
been included in Sec.  5.153 and Sec.  5.166 respectively, which were 
published as proposed, in a separate NPRM, on May 22, 2007. See 72 FR 
28770, 28789, 28791 [RIN 2900-AM01 General Evidence Requirements, 
Effective Dates, Revision of Decisions, and Protection of Existing 
Ratings].
    Paragraph (b) of proposed Sec.  5.55 consolidates the effective 
date rules for claims reopened based on new and material evidence. The 
rules are currently found in the introduction to Sec.  3.400 and in 
Sec.  3.400(q)(2) and (r). Current Sec.  3.400(q)(2) provides that when 
new and material evidence is submitted after a claim has been finally 
disallowed, VA will assign the effective date of an award based on the 
``[d]ate of receipt of new claim or date entitlement arose, whichever 
is later.'' That rule is substantively identical to the general rule 
governing the effective date for an award based on ``a claim reopened 
after final disallowance'' set forth in the introductory text of Sec.  
3.400. The same rule is stated a third time in Sec.  3.400(r).
    Proposed Sec.  5.55(b) consolidates these provisions into one rule: 
``[e]xcept as otherwise provided in this chapter, if VA reopens a 
finally denied claim on the basis of new and material evidence and 
awards the benefit sought, the award is effective on the date 
entitlement arose or the date that VA received the claim to reopen, 
whichever is later.'' Throughout this proposed rulemaking, we use the 
terms ``deny'' or ``denied'' instead of ``disallow'' or ``disallowed'' 
because we believe the former is easier for the public to understand. 
No substantive change is intended by this use of terminology.
Section 5.56 Report of Examination or Hospitalization as Claim for 
Increase or To Reopen
    Section 5.56 is based on current Sec.  3.157. It has been slightly 
reorganized. Proposed paragraph Sec.  5.56(a) is based on the second 
sentence of current Sec.  3.157(a). The first sentence of current Sec.  
3.157(a) has not been repeated, since it is redundant of the general 
effective date rule in proposed Sec.  5.150. The third sentence of 
current Sec.  3.157(a), which contains a provision on liberalizing laws 
or VA issues, is now in a new paragraph (d) of proposed Sec.  5.56. In 
paragraph (d), the reference to Sec.  3.114 has been changed to the 
proposed part 5 counterpart, Sec.  5.152, which was published as 
proposed on May 22, 2007. See 72 FR 28770, 28789 [RIN 2900-AM01 General 
Evidence Requirements, Effective Dates, Revision of Decisions, and 
Protection of Existing Ratings].
    Proposed paragraph (b) is based on the introductory paragraph of 
current Sec.  3.157(b) and is split into three subparagraphs. Proposed 
paragraphs (c)(1), (c)(2), and (c)(3) are based on current Sec.  
3.157(b)(1), (b)(2), and (b)(3).
    The regulation has also been rewritten in plain language and 
subheadings have been added for greater readability. There are no 
substantive changes.
Section 5.57 Status of Claims
    Proposed Sec.  5.57 is based on current Sec.  3.160, which provides 
definitions of informal claim, original claim, pending claim, finally 
adjudicated claim, reopened claim, and claim for increase, 
respectively.
    Proposed Sec.  5.57 includes a new paragraph, (a), defining 
``formal claim''. In proposed paragraph (a) we define ``formal claim'' 
as ``A claim filed on the application required for a specific 
benefit.'' VA has implicitly defined ``formal claim'' in current Sec.  
3.155(a) with the language, ``Upon receipt of an informal claim, if a 
formal claim has not been filed, an application form will be forwarded 
to the claimant for execution.'' The term ``formal claim'' also appears 
in current Sec. Sec.  3.154 and 3.157(b). The new definition in Sec.  
5.57(a) makes the implicit definition explicit

[[Page 20140]]

and clarifies the relationship between a claim and an application, as 
those terms are defined in proposed Sec.  5.1.
    In Sec.  5.57(b) through (g), we propose to use slightly different 
language in our definitions of ``original claim,'' ``pending claim,'' 
``finally adjudicated claim,'' ``reopened claim,'' and ``claim for 
increase'' than is used in Sec.  3.160. Because we propose to 
distinguish an application from a claim, as discussed above under Sec.  
5.50, we have modified the language; instead of defining them as 
``application[s],'' we propose to define them as ``claim[s]'' and 
describe their distinguishing characteristics. In the definitions of 
``finally adjudicated claim'' and ``pending claim'' we have not 
repeated unnecessary language referring to ``formal or informal'' 
claims. No substantive changes are proposed.

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 of 1995

    Although this document contains provisions constituting a 
collection of information, at 38 CFR Sec. Sec.  5.51, 5.52, 5.54, 5.55, 
and 5.56, under the provisions of the Paperwork Reduction Act of 1995 
(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.  5.51, 5.52, 5.54, 5.55, and 5.56 
are approved by the Office of Management and Budget (OMB) and have been 
assigned OMB control numbers 2900-0001, 2900-0003, 2900-0004, 2900-
0005, and 2900-0006.

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed 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 proposed amendment would not 
affect any small entities. Therefore, pursuant to 5 U.S.C. 605(b), this 
proposed amendment is exempt from the initial and final regulatory 
flexibility analysis requirements of sections 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 to be a significant regulatory action under the Executive 
Order because it is likely to result in a rule that may raise novel 
legal or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in the Executive Order.

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 1 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 and Titles

    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; 64.104, 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; 64.115, Veterans Information 
and Assistance; and 64.127, Monthly Allowance for Children of Vietnam 
Veterans Born with Spina Bifida.

List of Subjects in 38 CFR Part 5

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

    Approved: December 26, 2007.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.

    For the reasons set forth in the preamble, VA proposes to further 
amend 38 CFR part 5, as proposed to be added at 69 FR 4832, January 30, 
2004, and as further proposed to be amended at 70 FR 24680, May 10, 
2005; 71 FR 16464, March 31, 2006; and 72 FR 28770, May 22, 2007, as 
follows:

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

Subpart A--General Provisions

    1. The authority citation for subpart A continues to read as 
follows:

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

    2. Section 5.1 is amended by adding definitions of ``application'' 
and ``claim'' in alphabetical order to read as follows:


Sec.  5.1  General definitions.

* * * * *
    Application means a specific form required by the Secretary that a 
claimant must file to apply for a benefit.

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

* * * * *
    Claim means a formal or informal communication in writing 
requesting a determination of entitlement, or evidencing a belief in 
entitlement, to a VA benefit.

(Authority: 38 U.S.C. 501(a), 5100)

* * * * *

Subpart C--Adjudicative Process, General

    3. The authority citation for part 5, subpart C, continues to read 
as follows:

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

    4. Sections 5.50 through 5.57 and their undesignated center heading 
are added to subpart C to read as follows:

[[Page 20141]]

Subpart C--Adjudicative Process, General

VA Benefit Claims

Sec.
5.50 Applications furnished by VA.
5.51 Filing a claim for disability benefits.
5.52 Filing a claim for death benefits.
5.53 Claims for benefits under 38 U.S.C. 1151 for disability or 
death due to VA treatment or vocational rehabilitation.
5.54 Informal claims.
5.55 Claims based on new and material evidence.
5.56 Report of examination or hospitalization as claim for increase 
or to reopen.
5.57 Status of claims.
5.58-5.79 [Reserved]

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

Subpart C--Adjudicative Process, General

VA Benefit Claims


Sec.  5.50  Applications furnished by VA.

    (a) General. Upon request in person or in writing, VA will furnish 
the appropriate application to a person claiming or applying for, or 
expressing intent to claim or apply for, benefits under the laws 
administered by VA.
    (b) VA will furnish an application to a dependent upon the death of 
a veteran. Upon the receipt of notice of the death of a veteran, VA 
will forward the appropriate application for execution by or on behalf 
of any dependent who has apparent entitlement to death compensation, 
death pension, or dependency and indemnity compensation. If it is not 
indicated that any person would be entitled to such benefits, but an 
accrued benefit that has not been paid during the veteran's lifetime is 
payable, VA will forward the appropriate application to the preferred 
dependent. VA will include notice of the time limit for filing a claim 
for accrued benefits in letters accompanying applications for such 
benefits.
    Cross Reference: Extension of time limit. See Sec.  3.109(b) of 
this chapter.
    (c) VA will not forward an application for claims for disability or 
death due to hospital treatment, medical or surgical treatment, 
examination, or training. When disability or death is due to VA 
hospital care, medical or surgical treatment, examination, training and 
rehabilitation services, or compensated work therapy program, VA will 
not forward an application for benefits under 38 U.S.C. 1151. (See 
Sec.  5.53 for the requirements for filing a claim pursuant to 38 
U.S.C. 1151.)

(Authority: 38 U.S.C. 501(a), 5101, 5102)

Sec.  5.51  Filing a claim for disability benefits.

    (a) A claim must be filed in order for benefits to be paid. An 
individual must file a specific claim in the form prescribed by the 
Secretary in order for disability benefits to be paid under the laws 
administered by VA.
    (b) Claims for compensation or pension. VA may consider a claim for 
compensation as a claim for pension also, and VA may consider a claim 
for pension as a claim for compensation also. VA will award the greater 
benefit, unless the claimant specifically elects the lesser benefit.

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


    Cross References: Definition of claim. See Sec.  5.1. Informal 
claims. See Sec.  5.54.


Sec.  5.52  Filing a claim for death benefits.

    (a) Form of claim. An individual must file a specific claim in the 
form prescribed by the Secretary (or jointly with the Commissioner of 
Social Security, as prescribed by Sec.  5.131(a)) in order for death 
benefits to be paid under the laws administered by VA. (See Sec. Sec.  
5.431 and 5.567 concerning effective dates of awards of improved death 
pension and of DIC, respectively.)

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


    (b) VA treats certain claims as claims for more than one benefit.
    (1) A claim by a surviving spouse or child for death compensation 
will also be considered a claim for death pension.
    (2) A claim by a surviving spouse or child for dependency and 
indemnity compensation (DIC) will also be considered a claim for death 
pension.
    (3) A claim by a surviving spouse or child for death pension will 
also be considered a claim for DIC and, if the veteran died before 
January 1, 1957, for death compensation.

(Authority: 38 U.S.C. 501(a), 5101(b)(1))


    (c) Claims for death benefits by, or on behalf of, a child.
    (1) Child turns 18 years old. Except as provided in paragraphs 
(c)(4) and (c)(5) of this section, where a child's entitlement to DIC 
arises by reason of the child turning 18 years old, a claim will be 
required.
    (2) Termination of a surviving spouse's right to DIC. Except as 
provided in paragraph (c)(5) of this section, when a surviving spouse's 
right to DIC is terminated, a child's entitlement to DIC in his or her 
own right arises and a claim is required.
    (3) When a surviving spouse does not have entitlement. When a claim 
is filed by a surviving spouse who does not have entitlement, VA will 
accept the claim as a claim for a child in the surviving spouse's 
custody, if the child is named in the claim.
    (4) Effective date when a surviving spouse's claim is denied. If VA 
denies a claim of a surviving spouse for any reason whatsoever, an 
award for a child named in the surviving spouse's claim will be made as 
though the denied claim had been filed solely on the child's behalf, 
provided that evidence requested from the child in order to determine 
entitlement is submitted within 1 year after the date of such request. 
This provision applies regardless whether the evidence was requested 
before or after VA denied the surviving spouse's claim. If the evidence 
requested is not submitted within 1 year after the date of VA's 
request, payments may not be made for the child for any period prior to 
the date of receipt of a new claim.
    (5) Effective date when a surviving spouse's claim is converted to 
a claim on behalf of a child. Where payments of death pension, death 
compensation, or DIC to a surviving spouse have been discontinued 
because of remarriage or death, or where a child becomes eligible for 
DIC by reason of turning 18 years old, and any necessary evidence is 
submitted within 1 year after the date of a request from VA, an award 
for the child named in the surviving spouse's claim will be made on the 
basis of the surviving spouse's claim having been converted to a claim 
on behalf of the child. Otherwise, payments may not be made for any 
period prior to the date of receipt of a new claim from the child.

(Authority: 38 U.S.C. 501, 5110(e))


    Cross Reference: Other claims accepted as a claim for accrued 
benefits or benefits awarded, but unpaid at death. See Sec.  5.552(c).


Sec.  5.53  Claims for benefits under 38 U.S.C. 1151 for disability or 
death due to VA treatment or vocational rehabilitation.

    VA may accept as a claim for benefits under 38 U.S.C. 1151 and 
Sec.  3.361 of this chapter any communication in writing indicating an 
intent to file a claim for disability compensation or dependency and 
indemnity compensation (DIC) under the laws governing entitlement to VA 
benefits for disability or death due to VA hospital care, medical or 
surgical treatment, examination, training and rehabilitation services, 
or compensated work therapy program. Such communication may be 
contained in a formal claim for pension, disability compensation, or 
DIC, or in any other document.

(Authority: 38 U.S.C. 1151)


    Cross References: Effective dates. See Sec.  3.400(i) of this 
chapter. Injury or death

[[Page 20142]]

due to hospitalization and treatment, including effective dates. See 
Sec. Sec.  3.361 to 3.363 of this chapter.


Sec.  5.54  Informal claims.

    (a) Any communication or action, indicating an intent to apply for 
one or more benefits under the laws administered by VA, from a 
claimant, his or her duly authorized representative, a Member of 
Congress, or some person acting as next friend of a claimant who does 
not have the capacity to manage his or her own affairs may be 
considered an informal claim. Such informal claim must identify the 
benefit sought. Upon receipt of an informal claim, if a formal claim 
has not been filed, an application will be forwarded to the claimant 
for execution. If received within 1 year after the date it was sent to 
the claimant, it will be considered filed as of the date of receipt of 
the informal claim.
    (b) A communication received from a recognized service 
organization, or an accredited attorney or agent may not be accepted as 
an informal claim if a power of attorney as required by Sec.  14.631 of 
this chapter was not executed at the time the communication was 
written.
    (c) When a claim has been filed which meets the requirements of 
Sec.  5.51 or Sec.  5.52, an informal request for increase or reopening 
will be accepted as a claim.

(Authority: 38 U.S.C. 501(a), 5102(a))

Sec.  5.55  Claims based on new and material evidence.

    (a) New and material evidence. A claimant may reopen a finally 
adjudicated claim by submitting new and material evidence. New evidence 
means existing evidence not previously submitted to agency 
decisionmakers. Material evidence means existing evidence that, by 
itself or when considered with previous evidence of record, relates to 
an unestablished fact necessary to substantiate the claim. New and 
material evidence can be neither cumulative nor redundant of the 
evidence of record at the time of the last prior final denial of the 
claim sought to be reopened, and must raise a reasonable possibility of 
substantiating the claim.
    (b) Effective date. Except as otherwise provided in this chapter, 
if VA reopens a finally denied claim on the basis of new and material 
evidence and awards the benefit sought, the award is effective on the 
date entitlement arose or the date that VA received the claim to 
reopen, whichever is later.

(Authority: 38 U.S.C. 501(a), 5103A(f), 5108, 5110(a))


    Cross Reference: See Sec.  20.1304(b)(1)(i) of this title for the 
rule on effective date assigned when evidence is submitted to the Board 
of Veterans' Appeals during a pending appeal.


Sec.  5.56  Report of examination or hospitalization as claim for 
increase or to reopen.

    (a) General. A report of examination or hospitalization that meets 
the requirements of this section will be accepted as an informal claim 
for benefits under an existing law or for benefits under a liberalizing 
law or VA issue, if the report relates to a disability which may 
establish entitlement.
    (b) Requirements--(1) Prior claim for pension or disability 
compensation allowed, or prior claim for compensation denied because 
the service-connected disability was not compensable in degree. Once a 
formal claim for pension or disability compensation has been allowed, 
or once a formal claim for disability compensation has been denied 
because the service-connected disability is not compensable in degree, 
receipt of evidence as described in paragraph (c) of this section will 
be accepted as an informal claim for increased benefits or an informal 
claim to reopen.
    (2) Prior claim for pension or compensation denied because the 
veteran is receiving retirement pay. If a formal claim for pension or 
compensation from a retired member of a uniformed service has been 
denied because the veteran was receiving retirement pay, receipt of 
evidence as described in paragraph (c) of this section will be accepted 
as an informal claim for pension or compensation.
    (3) Prior claim for pension denied because the disability was not 
permanently and totally disabling. If a claim for pension has been 
denied because the disability was not permanently and totally 
disabling, receipt of evidence as described in paragraph (c) of this 
section will be accepted as an informal claim for pension.
    (c) Evidence--(1) Report of examination or hospitalization by VA or 
uniformed services.
    (i) General. The provisions of paragraph (c)(1) of this section 
apply only when the reports described in paragraph (c)(1)(ii) of this 
section relate to examination or treatment of a disability for which 
service-connection has previously been established or when a claim 
specifying the benefit sought is received within 1 year after the date 
of an examination, treatment, or hospital admission described in 
paragraph (c)(1)(ii) of this section.
    (ii) Date of claim. The date of the outpatient or hospital 
examination or date of admission to a VA or uniformed services hospital 
will be accepted as the date of receipt of the claim. In the case of a 
uniformed service examination which is the basis for granting severance 
pay to a former member of the Armed Forces on the temporary disability 
retired list, the date of the examination will be accepted as the date 
of receipt of the claim. In the case of an admission to a non-VA 
hospital where a veteran was maintained at VA expense, the date of 
admission will be accepted as the date of receipt of claim, if VA 
maintenance was previously authorized. If VA maintenance was authorized 
after admission, the date VA received notice of admission will be the 
date of receipt of the claim.
    (2) Evidence from a private physician or layman--(i) General. 
Evidence from a private physician or layman will be accepted when the 
evidence furnished by or on behalf of the claimant is within the 
competence of the physician or lay person and shows a reasonable 
probability of entitlement to benefits.
    (ii) Date of claim. The date that VA received such evidence will be 
accepted as the date of claim.
    (3) Evidence from State and other institutions--(i) General. 
Examination reports, clinical records, or transcripts of records from 
State, county, municipal, or recognized private institutions, or other 
Government hospitals (except those described in paragraph (c)(1) of 
this section) will be accepted, provided the following requirements are 
met. These records must be authenticated by an appropriate official of 
the institution. Benefits will be granted if the records are adequate 
for rating purposes; otherwise findings will be verified by official 
examination. Reports received from private institutions not listed by 
the American Hospital Association must be certified by the Chief 
Medical Officer of VA or physician designee.
    (ii) Date of claim. When submitted by or on behalf of the veteran 
and entitlement is shown, the date VA received such evidence will be 
accepted as the date of the claim.
    (d) Liberalizing law or VA issue. Acceptance of a report of 
examination or treatment as a claim for increase or to reopen is 
subject to the requirements of Sec.  5.152 with respect to action on VA 
initiative or at the request of the claimant and the payment of 
retroactive benefits from the date of the report or for a period of 1 
year prior to the date of receipt of the report.

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


[[Page 20143]]




Sec.  5.57  Status of claims.

    The following definitions are applicable to claims for pension, 
disability compensation, and dependency and indemnity compensation.
    (a) Formal claim. A claim filed on the application required for a 
specific benefit.
    (b) Informal claim. See Sec.  5.54.
    (c) Original claim. An initial formal claim. (See Sec. Sec.  5.51 
and 5.52.)
    (d) Pending claim. A claim which has not been finally adjudicated.
    (e) Finally adjudicated claim. A claim which has been allowed or 
denied by the agency of original jurisdiction, the action having become 
final by the expiration of 1 year after the date of notice of an award 
or denial, or by denial on appellate review, whichever is the earlier. 
(See Sec. Sec.  20.1103 and 20.1104 of this chapter.)
    (f) Reopened claim. Any claim for a benefit received after a final 
denial of an earlier claim, or any claim based on additional evidence 
or a request for a personal hearing submitted more than 90 days after 
notice is provided to the appellant of the certification of an appeal 
and transfer of applicable records to the Board of Veterans' Appeals 
which was not considered by the Board in its decision and was referred 
to the agency of original jurisdiction for consideration as provided in 
Sec.  20.1304(b)(1) of this chapter.
    (g) Claim for increase. Any claim for an increase in rate of a 
benefit being paid under a current award, or for resumption of payments 
previously discontinued.

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

Sec. Sec.  5.58-5.79  [Reserved]

[FR Doc. E8-7898 Filed 4-11-08; 8:45 am]
BILLING CODE 8320-01-P