[Federal Register Volume 73, Number 74 (Wednesday, April 16, 2008)]
[Proposed Rules]
[Pages 20571-20579]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-8099]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 3 and 20

RIN 2900-AM77


Board of Veterans' Appeals: Expedited Claims Adjudication 
Initiative--Pilot Program

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to launch an 
initiative for accelerated claims and appeals processing at four VA 
facilities, based on volunteer participation by eligible claimants. The 
purposes of this proposed initiative are to provide a model to 
streamline the VA claims adjudication and appeals process systemwide 
and to obtain resolution of individual claims and appeals at the 
earliest time possible in order to provide final decisions to veterans 
and their families with regard to their claims for benefits. If this 
initiative is successful at the four trial sites, the data obtained 
from this initiative may provide a basis for expanding some, or all, of 
the program nationwide, and ultimately help accelerate the processing 
of all claims and appeals.

DATES: Comments must be received by VA on or before June 16, 2008.

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. (This is not a toll-free number.) Comments should 
indicate that they are submitted in response to ``2900-AM77--Expedited 
Claims Adjudication Initiative--Pilot Program.'' 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 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. 
(This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: Within the Department of Veterans Affairs is 
a Veterans Benefits Administration (VBA or Administration) whose 
primary function is the administration of nonmedical VA benefits 
programs that provide assistance to veterans and their dependents and 
survivors. 38 U.S.C. 7701(a). VBA is under the Under Secretary for 
Benefits, who is directly responsible to the Secretary for the 
operations of the Administration. 38 U.S.C. 7701(b). VBA's adjudication 
rules are found at 38 CFR part 3. The Board of Veterans' Appeals (BVA 
or Board) is an administrative body within VA that decides appeals from 
decisions of 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. 
38 U.S.C. 7101(a). The Board's Appeals Regulations are found at 38 CFR 
part 19, and its Rules of Practice are found at 38 CFR part 20.
    The VA claims adjudication and appeals process is designed with 
many

[[Page 20572]]

procedural protections for claimants. As a result of these procedural 
protections, the amount of time it takes to process an initial claim 
and an appeal can be unnecessarily lengthened due to various statutory 
and regulatory response periods. Often, a case may sit without any 
action occurring while waiting for one of these response periods to 
end.
    In an effort to help accelerate the processing of all claims and 
appeals by providing a model to streamline the claims adjudication and 
appeals process systemwide, VA proposes to launch a pilot program known 
as the Expedited Claims Adjudication (ECA) Initiative (Initiative) at 
four VA facilities. The goal of this proposed Initiative is to obtain 
resolution of individual claims and appeals at the earliest time 
possible by greatly reducing the time that a case sits without any 
action occurring while waiting for a statutory or regulatory response 
period to run. By eliminating unnecessary waiting time in this 
Initiative, VA would provide faster final decisions to veterans and 
their families with regard to their claims for benefits. The data 
obtained from this Initiative may provide a basis for expanding the 
Initiative to other VA facilities in an effort to accelerate processing 
time for all claims and appeals in the VA adjudication system as a 
whole. The Initiative will last for a period of 2 years from the 
effective date of the final implementing regulations, and claimants 
would have the opportunity to voluntarily elect participation in the 
Initiative during this 2-year period. All claims for which 
participation in the Initiative is properly elected would be processed 
in accordance with these rules, unless participation is revoked or VA 
terminates the Initiative.
    Participation in the Initiative would be strictly voluntary. The 
proposed ECA Initiative would be predicated on the claimant agreeing, 
at the beginning of the claims process, to waive certain identified 
statutory and regulatory time limits and processing actions. To ensure 
that any waiver executed by the claimant would be knowing and 
voluntary, participation in the Initiative would only be open to 
claimants who, at the time of electing to participate in the 
Initiative, are represented by a recognized Veterans Service 
Organization (VSO) or an accredited agent or attorney for whom the 
claimant has properly executed and filed a VA Form 21-22, ``Appointment 
of Veterans Service Organization as Claimant's Representative,'' or a 
VA Form 21-22a, ``Appointment of Individual as Claimant's 
Representative,'' as appropriate. See 38 CFR 14.631. ECA participation 
may only be elected at the beginning of the VA claims adjudication 
process, and not more than 30 days after VA notifies the claimant about 
participation in the Initiative. Participation would be effectuated 
only if both the claimant and his or her representative sign an ECA 
Initiative Agreement and Waiver of Rights (ECA Agreement) certifying 
that the claimant has consulted with his or her representative to 
determine if participation in the Initiative is in his or her best 
interest.
    As noted above, in order to participate in the Initiative under 
this proposed rule, a claimant would have to waive certain procedural 
protections provided in VA statutes and regulations in order to allow 
VA to process his or her case on an accelerated basis. These procedural 
protections may consist of time limits, as well as other identified 
processing issues and actions. A claimant's decision to participate in 
the ECA would be revocable at any time in the VA claims or appeals 
process. There would be no penalty for revocation of ECA participation. 
Rather, upon express or implied revocation of ECA participation, the 
claimant's case would continue to be processed, from that point 
forward, using ordinary and established procedures under current 
statutes and regulations governing claims adjudication. In other words, 
the claimant's case would then fall into the regular stream of cases, 
and be processed in the same manner as if ECA participation had not 
been elected and would continue being processed from the date on which 
express revocation was received by VA or the date of the claimant's 
action that constituted an implied revocation of ECA participation 
under proposed Sec.  20.1509(c). The claimant's case would essentially 
continue from the same point in the adjudication process that it was 
when it left the ECA.
    Under this proposed Initiative, VBA would process claims from ECA 
participants at the following four designated regional offices: 
Nashville, Tennessee; St. Paul, Minnesota; Philadelphia, Pennsylvania; 
and Seattle, Washington. ECA participants would have to reside within 
the local jurisdiction of one of the four participating VA regional 
offices in order to be eligible to participate in the Initiative. The 
jurisdiction of the Nashville, St. Paul, and Seattle regional offices 
extends to residents of Tennessee, Minnesota, and Washington, 
respectively. The jurisdiction of the Philadelphia regional office 
extends to residents of the 40 easternmost counties of Pennsylvania and 
residents of the seven southernmost counties of New Jersey. These four 
regional offices were selected as they are all high performing stations 
with experienced leadership that have successfully handled pilot 
programs in the past without an adverse impact on customer service or 
the efficient processing of claims not covered by such programs. The 
four selected regional offices also represent a diverse cross section 
of all regional offices in terms of claims volume. Such diversity will 
provide VA with greater insight as to the potential success of the 
Initiative should future consideration be given to expanding it to the 
entire VA system.
    Due to the unique procedural nature of the ECA, and the legal and 
procedural complexities associated with certain types of claims, during 
the duration of the 2-year pilot program, under proposed Sec.  
20.1502(c) participation in the ECA would only be available for claims 
for disability compensation benefits under 38 CFR parts 3 and 4, 
excluding matters that involve survivor benefits (such as claims for 
Dependency and Indemnity compensation, see 38 CFR 3.5, and claims for 
burial benefits, see 38 CFR 3.1600 through 3.1612) and simultaneously 
contested claims (including matters related to insurance). As outlined 
in proposed Sec.  20.1502(c), for the duration of the 2-year pilot 
program, the Initiative would be available for original claims for 
disability compensation benefits, as well as claims for an increased 
disability rating, claims to reopen previously-denied compensation 
benefits claims, and requests for revision of an AOJ decision based on 
clear and unmistakable error.
    For those cases appealed to the Board under the Initiative, the 
Board would establish teams of attorneys to screen the appeals filed by 
ECA participants to determine the adequacy of the record for decisional 
purposes, pursuant to the Board's authority under 38 U.S.C. 7107(f). If 
the development of the record was inadequate, the Board would take 
appropriate action, such as solicit a waiver of AOJ consideration of 
newly-obtained evidence, or remand the case if unavoidable, so that 
when the appeal reached its place on the Board's docket it would be 
ready for prompt adjudication. See 38 CFR 19.9. Each appeal in the ECA 
Initiative would be decided in regular order according to its place on 
the Board's docket, in accordance with 38 U.S.C. 7107(a)(1). However, 
nothing in this proposed rule would prevent a claimant from filing a 
motion to have his or her case advanced on the Board's docket, subject 
to the provisions of 38 U.S.C. 7107(a)(2).

[[Page 20573]]

    The ECA Agreement under this proposed rule would cover any claim 
that is expressly listed on the agreement, including any downstream 
element of the claim, such as assignment of a disability rating and 
effective date, and any claim that is inextricably intertwined to a 
covered claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 
(2006) (recognizing that a claim for service connection includes five 
elements: veteran status; existence of a disability; a connection 
between the veteran's service and the disability; degree of disability; 
and effective date). ECA participants would agree to a number of 
conditions that would be outlined in the ECA Agreement that they and 
their representatives would sign. The ECA Agreement would be consistent 
with the rules that are outlined in proposed subpart P of part 20, 
title 38. The ECA Agreement would explain the terms of the Initiative, 
the procedural rights waived under the Initiative, the responsibilities 
of both the participant and VA under the Initiative, and the right to 
revoke participation. Except as specifically provided in these proposed 
rules, claims processed under this Initiative would be adjudicated 
according to the adjudication procedures outlined in part 3 of title 
38, CFR, and appeals would be subject to the Board's Appeals 
Regulations and Rules of Practice, as outlined in parts 19 and 20 of 
title 38, CFR. Any matter related to a claim for veterans benefits that 
is not otherwise covered by these proposed rules would be governed by 
normal rules pertaining to veterans benefits in title 38, CFR.
    Under this proposed rule, upon receipt of a claim for benefits at 
one of the four participating VA regional offices, as described in 
proposed Sec.  20.1501(e), VA would promptly mail claimants notice of 
the opportunity to participate in the ECA Initiative. Election to 
participate must then be made within 30 days of the date of the notice 
of the opportunity to participate, as set forth in proposed Sec.  
20.1503(a).
    The ECA Initiative involves both claims and appeals processing. 
Because most of the abbreviated processing times at the appeals stage 
concern established statutory and regulatory time periods governing 
appeals, we propose to place the rules for the Initiative in new 
subpart P, part 20, of the Board's Rules of Practice. We propose to 
include a cross reference to the ECA Initiative in part 3, 
Adjudication.
    The parameters of the proposed rule are highlighted below. For 
clarity, the descriptions below follow, to the extent possible, the 
order of claims and appeals processing, rather than the order of the 
rules.

Identification of Evidence Upon Filing a Claim

    Proposed Sec.  20.1503(d) would provide that, upon electing 
participation in the Initiative, participants would agree to promptly 
identify all relevant evidence, including any VA records, any non-VA 
Federal records (such as Social Security disability records), and any 
private records (such as treatment records from a family physician). If 
the participant requires assistance from VA in obtaining any identified 
records, the participant would provide VA the appropriate release forms 
so VA could attempt to promptly obtain the records on behalf of the 
participant. See 38 CFR 3.159(c).

Period To Respond to VA Requests for Information and Evidence

    Under 38 U.S.C. 5103(b)(1) and 38 CFR 3.159(b)(1), a claimant has 
up to 1 year to respond to a VA request for information and evidence 
necessary to substantiate a claim for benefits, although if the 
claimant has not responded to the request within 30 days, VA may decide 
the claim prior to the expiration of the 1-year period. By electing ECA 
participation under proposed Sec.  20.1503, ECA participants would 
agree to waive the right to this 1-year response period and instead 
agree to respond to a VA request for information and evidence necessary 
to substantiate their claim(s) within the 60-day period prescribed in 
proposed Sec.  20.1504(a)(1). Participants would also agree to respond 
to additional VA requests for evidence within the 30-day period 
prescribed in proposed Sec.  20.1504(a)(2).

Period To File Notice of Disagreement

    ECA participants would agree under this Initiative that if they 
receive an adverse VA decision on a claim(s), they will waive the right 
to the statutory 1-year period to initiate an appeal by filing a Notice 
of Disagreement (NOD), and instead file a NOD with an adverse VA 
decision on the claim(s) within the 60-day period prescribed in 
proposed Sec.  20.1504(a)(4). See 38 U.S.C. 7105(b)(1); 38 CFR 
20.302(a). If an ECA participant did not file a NOD during this 60-day 
period, but later decided within the remaining portion of the 1-year 
appeal period under 38 U.S.C. 7105(b)(1) to file a NOD, he or she could 
still pursue that appeal. However, the filing of a NOD after the 60-day 
period would constitute an implied revocation of participation in the 
ECA initiative under proposed Sec.  20.1509(c). In that case, the 
covered claims would then proceed in accordance with established laws 
and regulations, as if ECA participation had not been elected. 
Alternatively, under proposed Sec.  20.1509(e), an ECA participant may 
file a motion for extension of the 60-day period, based on good cause. 
Such motion must be filed with VA prior to the expiration of the 60-day 
period. Provided that the motion is granted, the participant will 
remain in the Initiative.

Review by Decision Review Officer

    ECA participants under proposed Sec.  20.1505 would agree that if 
they file a NOD as to an adverse decision on a covered claim(s), the 
decision would be reviewed by a Decision Review Officer under the 
provisions of 38 CFR 3.2600.

Hearing Before Decision on Claim

    As set forth in proposed Sec.  20.1507(a), ECA participants would 
agree that, if they request a hearing before VBA, they will only have 
one hearing on their claim(s), the hearing will be conducted by a 
Decision Review Officer, and that no hearing will be held until after 
the participating VA regional office that has jurisdiction over the ECA 
participant's claim makes an initial decision on the claim. See 38 CFR 
3.103(c) and 3.2600(c). The reason for this latter requirement is to 
avoid unnecessary delays that would be caused by waiting to conduct a 
hearing on a claim that the participating VA regional office may grant 
when the initial decision is made on the claim.

Period To File Substantive Appeal

    Under current laws and regulations, claimants have 60 days from the 
date of mailing of the Statement of the Case (SOC) in which to file a 
Substantive Appeal, or the remainder of the one-year period in which to 
file the NOD, whichever period is longer. 38 U.S.C. 7105(d)(3); 38 CFR 
20.303(b). ECA participants under this proposed rule would agree that 
if they continue to pursue an appeal in their case, they will waive the 
right to this time period, and instead file a Substantive Appeal within 
the 30-day period prescribed in proposed Sec.  20.1504(a)(5). If an ECA 
participant did not file a Substantive Appeal during this 30-day 
period, but later decided within the remaining time available under 38 
U.S.C. 7105(d)(3) and 38 CFR 20.303(b) to do so, he or she could still 
file a timely Substantive Appeal. However, the claimant's filing of a 
Substantive Appeal after the 30-day period would constitute an implied 
revocation of participation in the ECA Initiative under proposed Sec.  
20.1509(c). In that case, the appeal would then proceed in accordance 
with established

[[Page 20574]]

laws and regulations, as if ECA participation had not been elected. 
Alternatively, under proposed Sec.  20.1509(e), an ECA participant may 
file a motion for extension of the 30-day period, based on good cause. 
Such motion must be filed with VA prior to the expiration of the 30-day 
period. Provided that the motion is granted, the participant will 
remain in the Initiative.

Certification of Appeal to the Board

    Proposed Sec.  20.1504(b) would provide that upon receipt of a 
timely Substantive Appeal, the participating VA regional office would 
certify covered claims and transfer the appellate record to the Board 
within 30 days of receipt of the Substantive Appeal or within 30 days 
of the receipt of any additional submissions following the Substantive 
Appeal, but no later than 60 days from receipt of the Substantive 
Appeal. See 38 CFR 19.35 and 19.36.

Period To Submit Requests for a Hearing, Change in Representation, or 
Additional Evidence After Certification and Transfer of Appeal

    Under 38 CFR 20.1304(a) and (b), claimants have a period of 90 days 
from notification that their appeal has been certified and transferred 
to the Board in which to submit: (1) A request for a personal hearing; 
(2) additional evidence; or (3) a request for a change in 
representation. ECA participants would agree to waive the right to this 
90-day period and instead agree to submit any request for a personal 
hearing, additional evidence, or request for a change in representation 
to the Board within the 30-day period prescribed in proposed Sec.  
20.1504(a)(6). If following the passing of this 30-day period an ECA 
participant decided to submit a request for a personal hearing, 
additional evidence, or a request for a change in representation, he or 
she could still do so within the remaining available time period 
provided pursuant to 38 CFR 20.1304, but such would constitute an 
implied revocation of the claimant's participation in the ECA 
Initiative pursuant to proposed Sec.  20.1509(c). Alternatively, under 
proposed Sec.  20.1509(e), an ECA participant may file a motion for 
extension of the 30-day period, based on good cause. Such motion must 
be filed with VA prior to the expiration of the 30-day period. Provided 
that the motion is granted, the participant will remain in the 
Initiative.

Board Hearing

    By law, an appellant must be provided with an opportunity for a 
hearing before the Board may decide the appeal. 38 U.S.C. 7107(b). An 
appellant is provided the following options for a Board hearing: an in-
person hearing at the Board's offices in Washington, DC; an in-person 
hearing before the Board at the local VA regional office; or a hearing 
before the Board through the use of videoconference technology. See 38 
U.S.C. 7107(d) and (e); 38 CFR 20.700(e), 20.702(a), and 20.705. As 
prescribed in proposed Sec.  20.1507(b), ECA participants who appeal an 
adverse decision on their covered claim(s) to the Board would (1) 
receive only one hearing before the Board, and (2) the Board, after 
consulting with the participant and his or her designated 
representative, would determine the type of hearing that the 
participant will have so as to schedule it in as short a time as 
reasonably possible. An in-person hearing at the Board's offices in 
Washington, DC, would be chosen only if geographically convenient for 
the participant, or if the participant expressly agrees to travel at 
his or her own expense to the Board's offices for the hearing. See 38 
CFR 20.712.

Consideration of Evidence Submitted After Statement of Case

    Under current laws and regulations, claimants have the right to 
have the AOJ consider evidence submitted or received after issuance of 
an SOC. 38 U.S.C. 7104(a). Claimants also have the right to issuance of 
a Supplemental Statement of the Case (SSOC) if there are material 
changes in, or additions to, the information in the SOC or any prior 
SSOC. 38 U.S.C. 7104(a), 7105(d); 38 CFR 19.9(a), (b)(3), 19.31, 19.37, 
20.800, 20.903(b) and 20.1304(c). As prescribed in proposed Sec.  
20.1508(b)(2), if ECA participants or their representative submit 
additional evidence after the SOC is issued, and continue to pursue 
their appeal by filing a timely Substantive Appeal, they are deemed to 
have waived their right to initial review of this evidence by the AOJ, 
including readjudication of their claim and issuance of any required 
SSOC. Rather, as an ECA participant, they will agree to have any such 
evidence reviewed by the Board in the first instance. In agreeing to 
this waiver by virtue of electing to participate in the Initiative, 
claimants would acknowledge that their claim may be granted or denied 
based on the Board's consideration of this new evidence in the first 
instance. By executing an ECA Agreement with their representatives, ECA 
participants would essentially be offering such waiver at the outset of 
the claims process. Because participants and their representatives are 
already aware of the evidence they are submitting, an additional waiver 
of AOJ review of such evidence, outside of that waiver already 
contained in the ECA Agreement, would be unnecessary.
    If, however, VA obtains new relevant evidence in an appeal that was 
not submitted by the participant or his or her authorized 
representative, under proposed Sec.  20.1508(b)(1) VA would provide a 
copy of the new evidence to the participant and his or her 
representative and solicit from the appellant a waiver of AOJ review of 
the new evidence pursuant to the procedures outlined in Sec.  
20.1304(c). In other words, unlike evidence submitted by the appellant 
or representative, AOJ review of evidence obtained by VA would not be 
automatically waived by virtue of the execution of an ECA Agreement. 
Rather, VA would actively solicit a waiver of AOJ review of such 
evidence, as such waiver would not be inherent in ECA participation. If 
the appellant declines to provide a waiver at that time, his or her 
participation in the Initiative would end. The claim would then be 
processed using ordinary and established procedures under the rights 
afforded under current statutes and regulations applicable from that 
point forward.

Screening and Review by the Board

    The Board is statutorily required to consider and decide appeals in 
the order in which they are placed on its docket (with limited 
exceptions). 38 U.S.C. 7107(a). Under this Initiative, as explained in 
proposed Sec.  20.1506, the Board would use its statutory authority to 
screen ECA cases that are appealed to the Board to ensure that the 
record is adequate for decisional purposes. 38 U.S.C. 7107(f). If the 
record is found to be inadequate, appropriate action would be taken by 
the Board pursuant to 38 CFR 19.9, including but not limited to: 
soliciting a waiver from the participant permitting the Board to review 
new evidence obtained by VA in the first instance; seeking 
clarification from the participant of matters such as hearing requests 
and representation; and, where necessary, remanding the case for 
further development. A case screened by the Board for appellate review 
would be finally decided in docket order (a remand is not a final 
order) and would not be advanced on the Board's docket except as 
provided in 38 CFR 20.900(c).

Extension of Time Limits

    Under current law, certain time limits may be extended upon 
request, for good cause shown. See, e.g., 38 CFR 3.109(b), 20.303, 
20.1304(b). The ECA Initiative is intended to streamline the claims and 
appeals process. One of the primary vehicles used to accomplish this 
goal is

[[Page 20575]]

the shortening of various time limits typically available to claimants, 
as outlined above. Because the Initiative is predicated on abbreviated 
time limits, extension requests are inconsistent with the goals of the 
program, as they would lengthen the claims and appeals process. 
Nevertheless, VA recognizes the pro-claimant nature of the veterans 
benefits adjudication system, and realizes that extensions are 
sometimes both unavoidable and necessary to properly process a claim 
and/or an appeal. Accordingly, under proposed Sec.  20.1509(c)(3), a 
participant's request for an extension of any of the time limits 
modified by the Initiative will serve as an implied revocation of 
participation in the program, unless the participant shows on motion 
that there is good cause for the extension request. Examples of such 
extenuating circumstances include, but are not limited to, illness on 
the part of the participant or representative of such severity that 
precludes action during the relevant period, and death or withdrawal of 
a representative. If the extension request is not granted, the request 
itself would serve as an implied revocation of participation in the 
Initiative, and from the date of the action constituting the implied 
revocation the participant's claim would be adjudicated as if he or she 
had not elected to participate in the Initiative (i.e. under existing 
claims adjudication procedures).

Waiver of Procedural Matters

    Inherent in the execution of the ECA Agreement is the waiver of 
several procedural rights typically afforded to claimants in the VA 
system, most notably time periods allotted under existing law to take 
certain actions, such as the time period for filing a NOD or 
Substantive Appeal, or the period to respond to a VA request for 
additional evidence. All of these time periods are specifically 
outlined in proposed Sec.  20.1504, and would be identified in the ECA 
Agreement signed by the participant and his or her representative.
    However, there are other procedural processing issues that may 
arise in a case that would not be specifically outlined in either the 
ECA Agreement or this proposed rule, and for which a waiver would not 
have been secured by virtue of participation in the Initiative. It 
would be virtually impossible to separately identify in the ECA 
Agreement or this proposed rule all potential processing issues that 
may arise, yet without the participant's waiver of any procedural 
defects that may develop, the claims adjudication process could be 
unnecessarily prolonged. For example, if a Veterans Claims Assistance 
Act (VCAA) notice letter sent to a claimant contained a minor defect, 
the claims adjudication process would need to be delayed while a 
corrective VCAA letter was sent to the claimant and a reasonable period 
was allowed for reply (typically 60 days).
    Such delay is inconsistent with the objectives of the Initiative, 
which seeks to streamline the claims and appeals process and eliminate 
unnecessary waiting periods in claims processing. This proposed rule 
therefore provides a mechanism for the waiver of any procedural 
processing issues not specifically addressed in the ECA Agreement. 
Proposed Sec.  20.1508(a) provides that an ECA participant would be 
required to waive any specifically identified procedural processing 
issues and actions when requested by VA in writing or at a hearing. In 
such circumstances, VA would provide the ECA participant with a clear 
explanation of the right being waived.
    Should the participant fail to provide such waiver, or if such 
waiver is not received within 30 days of the waiver request, or if any 
request for an extension of time to respond pursuant to proposed Sec.  
20.1509(c)(3) is not granted, the participant would be deemed to have 
revoked participation in the Initiative and the claim(s) would 
thereafter be processed as though the participant had not elected 
participation in the Initiative. As noted above, such waiver would not 
be required for matters that have already been waived by virtue of 
participation in the Initiative.

Revocation of ECA Participation and Compliance With Initiative 
Requirements

    One of the key features of the Initiative is its reliance on 
voluntary participation. As such, the Initiative would provide for both 
express and implied revocation of participation in the program.
    Under proposed Sec.  20.1509(b), an ECA participant would be able 
to expressly revoke participation in the Initiative at any time by 
submitting a written revocation request to the appropriate 
participating VA regional office or the Board, as appropriate. As of 
the date the revocation request is received, the claim(s) would be 
processed using the claims adjudication procedures outlined in the 
existing statutory and regulatory scheme.
    Proposed Sec.  20.1509(c) would provide that a participant's 
failure to comply with the terms of the executed Agreement and Waiver 
of Rights would have the same effect as express revocation--that of 
terminating participation in the Initiative and having the claims 
processed using established claims adjudication and appeals procedures. 
Participation in the Initiative would be implicitly revoked if a 
participant: (1) Fails to comply with any of the time limits outlined 
in proposed Sec.  20.1504(a); (2) fails to waive initial AOJ 
consideration of any evidence obtained by VA that was not considered in 
the SOC; (3) requests an extension of any of the time limits in Sec.  
20.1504(a), unless good cause is found pursuant to proposed Sec.  
20.1509(c)(3); or (4) fails to comply with the terms of the ECA 
Agreement, as determined by VA.
    Proposed Sec.  20.1509(d) would also provide that if an ECA 
participant dies during the pendency of his or her claim, participation 
would be impliedly revoked.
    Under proposed Sec.  20.1509(a), unless the participant expressly 
or impliedly revokes his or her participation in the Initiative, all 
covered claims, i.e., all eligible claims for which ECA participation 
has been elected, would be processed by VA or the Board in accordance 
with the provisions of this proposed rule until a final VA decision of 
the agency of original jurisdiction or the Board has been issued.

Termination of the Initiative

    Proposed Sec.  20.1510 would provide that VA may terminate the 
Initiative at any time. Proposed Sec.  20.1510 would also explain that 
if VA terminates the Initiative, VA would notify participants and their 
representatives in writing and inform them that any covered claims will 
be processed from the date of termination in the same manner as if the 
participant had not elected to participate in the Initiative.

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. It will not affect any small organizations or small 
governmental jurisdictions, and will not have a significant economic 
impact on these small entities. Therefore, pursuant to 5 U.S.C. 605(b), 
this proposed rule is exempt from the initial and final regulatory 
flexibility

[[Page 20576]]

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 to be a significant regulatory action under Executive Order 
12866, as it raises novel legal or policy issues arising out of legal 
mandates.

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

    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

38 CFR Part 3

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

38 CFR Part 20

    Administrative practice and procedure, Claims, Veterans.

    Approved: December 27, 2007.
James B. Peake,
Secretary of Veterans Affairs.

    Editorial Note: This document was received at the Office of the 
Federal Register on April 11, 2008.

    For the reasons set forth in the preamble, VA proposes to amend 38 
CFR parts 3 and 20 as follows:

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity 
Compensation

    1. The authority citation for part 3, Subpart A, continues to read 
as follows:

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

    2. Add Sec.  3.161 to read as follows:


Sec.  3.161  Expedited Claims Adjudication Initiative--Pilot Program.

    Rules pertaining to the Expedited Claims Adjudication Initiative 
Pilot Program are set forth in part 20, subpart P, of this chapter.

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

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.

    4. Add subpart P to read as follows:
Subpart P--Expedited Claims Adjudication Initiative--Pilot Program
Sec.
20.1500 Rule 1500. Expedited Claims Adjudication Initiative.
20.1501 Rule 1501. Definitions.
20.1502 Rule 1502. Eligibility.
20.1503 Rule 1503. Election, identification of evidence, and 
representation.
20.1504 Rule 1504. Time limits.
20.1505 Rule 1505. Review of initial benefits claim decision.
20.1506 Rule 1506. Board review of cases.
20.1507 Rule 1507. Hearings.
20.1508 Rule 1508. Waiver.
20.1509 Rule 1509. Compliance and revocation of participation.
20.1510 Rule 1510. Termination of the Initiative.

Subpart P--Expedited Claims Adjudication Initiative--Pilot Program


Sec.  20.1500  Rule 1500. Expedited Claims Adjudication Initiative.

    (a) Purpose. The Expedited Claims Adjudication Initiative is a 
pilot program designed to streamline the claims adjudication and 
appeals process. This subpart establishes procedures governing this 
Initiative.
    (b) Outline of Initiative. This Initiative allows eligible 
claimants to voluntarily participate in an alternative claims 
adjudication program as set forth in this subpart, which is predicated 
on the claimant's waiver of certain identified statutory and regulatory 
time limits, procedural rights, and processing issues that may arise.
    (c) Scope. Except as specifically provided in this subpart, claims 
processed under this Initiative will be adjudicated according to the 
procedures outlined in part 3 of this chapter, and appeals will be 
processed according to the Appeals Regulations and Rules of Practice, 
as outlined in parts 19 and 20 of this chapter. Any matter not 
otherwise covered by this subpart will be governed by existing rules in 
this title.
    (d) Duration. The Secretary will accept an executed Agreement and

[[Page 20577]]

Waiver of Rights as provided in Sec.  20.1503 of this part for a period 
not to exceed 2 years from the effective date of the Initiative.

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

Sec.  20.1501  Rule 1501. Definitions.

    For purposes of this subpart, the following definitions apply:
    (a) Initiative means the Expedited Claims Adjudication Initiative 
as promulgated by this subpart.
    (b) Participant means any eligible claimant who elects to 
participate in the Initiative by executing, with his or her 
representative, an Expedited Claims Adjudication Initiative Agreement 
and Waiver of Rights as provided in Sec.  20.1503 of this part.
    (c) Covered claim or covered claims means any claim or claims, as 
described in Sec.  20.1502(c) of this part, that a participant elects 
to have processed under the rules governing the Initiative, including 
any downstream element of the claim(s), such as assignment of a 
disability rating and effective date, and any claim that is 
inextricably intertwined with a covered claim.
    (d) Representative means a representative of a recognized Veterans 
Service Organization or an accredited attorney or agent, as set forth 
in part 14 of this chapter, for whom a claimant has properly executed 
and filed a VA Form 21-22, ``Appointment of Veterans Service 
Organization as Claimant's Representative,'' or a VA Form 21-22a, 
``Appointment of Individual as Claimant's Representative,'' as required 
by Sec.  14.631 of this chapter.
    (e) Participating VA regional office means one of the following 
four VA regional offices: Nashville, Tennessee; St. Paul, Minnesota; 
Seattle, Washington; and Philadelphia, Pennsylvania. The jurisdiction 
of the Nashville, St. Paul, and Seattle regional offices extends to 
residents of Tennessee, Minnesota, and Washington, respectively. The 
jurisdiction of the Philadelphia regional office extends to residents 
of the 40 easternmost counties of Pennsylvania and residents of the 
seven southernmost counties of New Jersey. For purposes of this 
Initiative only, the jurisdiction of these regional offices extends 
only to a covered claim, as described in Sec.  20.1502(c) of this part.

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

Sec.  20.1502  Rule 1502. Eligibility.

    To participate in the Initiative, a claimant must:
    (a) At the time the Agreement and Waiver of Rights is executed, 
have a representative, as defined in Sec.  20.1501(d) of this part;
    (b) Reside within the jurisdiction of a participating VA regional 
office, as defined in Sec.  20.1501(e) of this part; and
    (c) File one of the following types of claims for VA disability 
compensation as outlined in parts 3 and 4 of this chapter at a 
participating VA regional office:
    (1) Original claim;
    (2) Claim for an increased rating;
    (3) Claim to reopen a previously denied claim based on the 
submission of new and material evidence as provided in Sec.  3.156 of 
this chapter; or
    (4) Requests for revision of a decision of an agency of original 
jurisdiction under Sec.  3.105 of this chapter based on clear and 
unmistakable error.

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

Sec.  20.1503  Rule 1503. Election, identification of evidence, and 
representation.

    (a) When and how election made. Upon the filing of a claim 
described in Sec.  20.1502(c) of this part, VA will promptly notify the 
claimant in writing of the opportunity to participate in the Initiative 
and provide the claimant with an Agreement and Waiver of Rights. A 
claimant may elect to participate in the Initiative by filing an 
executed Agreement and Waiver of Rights as provided in paragraphs (b) 
and (c) of this section within 30 days of the date of the notice of the 
opportunity to participate in the Initiative. An election to 
participate in the Initiative can be revoked at any time in accordance 
with Sec.  20.1509 of this part.
    (b) Execution of agreement. To participate in the Initiative, a 
claimant and his or her representative must execute an Agreement and 
Waiver of Rights on a form prescribed by the Secretary. The claimant 
will specifically identify in the Agreement and Waiver of Rights all 
claims he or she wishes to have processed under the Initiative.
    (c) Where to file. The executed Agreement and Waiver of Rights must 
be filed with the participating VA regional office that has 
jurisdiction over the claim.
    (d) Identification of relevant evidence. Upon executing the 
Agreement and Waiver of Rights, the participant will identify all 
relevant evidence in support of his or her claim(s), including any VA 
records, non-VA Federal records (such as Social Security disability 
records), and any private records (such as treatment records from a 
family physician) within the time prescribed in Sec.  20.1504(a)(1). If 
the participant requires assistance from VA in obtaining any identified 
records, the participant will provide VA the appropriate release form 
so VA may attempt to promptly obtain the records on behalf of the 
participant.
    (e) Effect of change in representation on the election. If a 
participant changes or terminates representation after having made a 
valid election to participate in the Initiative, participation in the 
Initiative will continue under the terms of the signed Agreement and 
Waiver of Rights, unless the participant indicates, in writing, 
pursuant to Sec.  20.1509(b) of this part, that he or she wishes to 
revoke participation.

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

Sec.  20.1504  Rule 1504. Time limits.

    The following time limits will be applicable to all covered claims:
    (a) Time limits to be observed by the participant. The participant 
will comply with the following time limits for all covered claims:
    (1) Response to initial notice letter. The time limit for 
responding to the notification required by Sec.  3.159(b)(1) of this 
chapter regarding the information and medical or lay evidence necessary 
to substantiate a claim will be 60 days.
    (2) Subsequent requests by VA for additional information and 
evidence. The time limit for responding to any subsequent request by VA 
for additional information or evidence will be 30 days.
    (3) VA request for waiver. The time limit for responding to a VA 
request for waiver as set forth in Sec.  20.1508 of this part, will be 
30 days.
    (4) Notice of Disagreement. The time limit for filing a Notice of 
Disagreement pursuant to Sec.  20.302(a) of this part will be 60 days.
    (5) Substantive Appeal. The time limit for filing a Substantive 
Appeal pursuant to Sec.  20.302(b) of this part will be 30 days.
    (6) Following certification of appeal to the Board. Following the 
issuance of notification that the appeal has been certified and 
transferred to the Board, the time limit for taking the following 
actions pursuant to Sec.  20.1304 of this part will be 30 days:
    (i) Request a hearing before the Board,
    (ii) Request a change in representation, or
    (iii) Submit additional evidence or argument.
    (b) Time limit to be observed by the participating VA regional 
office. The participating VA regional office shall certify covered 
claims and transfer the appellate record to the Board as set forth in 
Sec. Sec.  19.35 and 19.36 of this chapter within 30 days of the 
receipt of the Substantive Appeal, or within 30 days of receipt of any 
additional submissions following the Substantive Appeal, but no later 
than 60 days from the receipt of the Substantive Appeal.

[[Page 20578]]


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

Sec.  20.1505  Rule 1505. Review of initial benefits claims decision.

    If a participant files a Notice of Disagreement as to a covered 
claim, the decision of the participating VA regional office will be 
reviewed by a Decision Review Officer under the provisions set forth in 
Sec.  3.2600 of this chapter.

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

Sec.  20.1506  Rule 1506. Board review of cases.

    (a) The Board will screen cases that are certified and transferred 
to the Board under the Initiative to determine whether the record is 
adequate for decisional purposes. If the Board determines that the 
record is inadequate, the Board will take appropriate action pursuant 
to Sec.  19.9 of this chapter.
    (b) A case screened by the Board for purposes of determining the 
adequacy of the record will be decided in docket order and will not be 
advanced on the Board's docket except as provided in Sec.  20.900(c) of 
this part.

(Authority: 38 U.S.C. 7107(a), (f))

Sec.  20.1507  Rule 1507. Hearings.

    (a) Before the participating VA regional office. Upon request, a 
participant is entitled to a hearing by a Decision Review Officer 
before the participating VA regional office as provided in Sec. Sec.  
3.103(c) and 3.2600(c) of this chapter, subject to the following 
limitations:
    (1) No hearing will be conducted prior to the initial adjudication 
of the claim by the participating VA regional office.
    (2) Only one hearing on a claim will be conducted at the 
participating VA regional office and the hearing will be conducted by a 
Decision Review Officer in accordance with Sec.  3.2600 of this 
chapter.
    (b) Before the Board. Upon request, a participant is entitled to a 
hearing before the Board as provided in Sec. Sec.  20.700 through 
20.717, and 20.1304, subject to the following limitations:
    (1) Only one hearing before the Board will be conducted.
    (2) After consultation with the participant and his or her 
representative, the Board will determine whether the hearing will be 
conducted in person in Washington, DC, at the participating VA regional 
office with jurisdiction over the claim, or by electronic equipment as 
set forth in Sec.  20.700(e) of this part. The Board's determination 
will be based primarily on the type and place of hearing which will 
allow for scheduling at the earliest possible date. An in-person 
hearing will be conducted in Washington, DC, only if geographically 
convenient for the participant and his or her representative, or if the 
participant agrees to travel to Washington, DC, at his or her own 
expense.

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

Sec.  20.1508.  Rule 1508, Waiver.

    (a) General. When requested by VA, a participant will waive, in 
writing, identified procedural processing issues and actions relating 
to covered claims. VA will provide the participant with a clear 
explanation, in writing, as to what rights he or she may be waiving. If 
a hearing on appeal is conducted, the waiver may be formally and 
clearly entered on the record at the time of hearing. A response to a 
written waiver request from VA must be filed within the 30-day period 
prescribed in Sec.  20.1504(a)(3) of this part. Such waiver is not 
required for matters that have already been waived by virtue of 
electing participation in the Initiative.
    (b) Evidence obtained or submitted after the Statement of the Case.
    (1) Evidence obtained by VA. If new evidence is obtained by VA 
following issuance of a Statement of the Case under Sec. Sec.  19.29 
and 19.30 of this chapter, and the claim(s) is not otherwise granted in 
full based on this new evidence, VA will provide a copy of such 
evidence to the participant and representative, and request a waiver of 
review by the agency of original jurisdiction of such evidence and 
issuance of a Supplemental Statement of the Case pursuant to the 
provisions set forth in Sec.  20.1304(c) of this part. A response to a 
written waiver request from VA must be filed within the 30-day period 
prescribed in Sec.  20.1504(a)(3) of this part.
    (2) Evidence submitted by participant or representative. If new 
evidence is submitted by the participant or representative following 
issuance of a Statement of the Case under Sec. Sec.  19.29 and 19.30 of 
this chapter, the participant, by virtue of executing a valid Agreement 
and Waiver of Rights, is deemed to have knowingly and voluntarily 
waived agency of original jurisdiction review of such evidence and 
issuance of a Supplemental Statement of the Case, which permits the 
Board to review such evidence in the first instance.

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

Sec.  20.1509  Rule 1509. Compliance and revocation of participation.

    (a) Unless the participant revokes his or her participation in the 
Initiative as provided in paragraphs (b), (c) or (d) of this section, 
all covered claims will continue to be processed by VA or the Board in 
accordance with the provisions of this subpart until a final decision 
of the agency of original jurisdiction or the Board has been issued.
    (b) Express revocation. A participant may revoke participation in 
the Initiative at any time by submitting a revocation request in 
writing. The revocation request must be filed with the participating VA 
regional office unless the case has been certified and transferred to 
the Board, in which case the revocation request should be filed with 
the Board. As of the date of receipt of the revocation, any covered 
claims will be processed in the same manner as if the participant had 
not elected to participate in the Initiative.
    (c) Implied revocation. The failure of a participant to meet the 
terms of these rules, as outlined in the executed Agreement and Waiver 
of Rights, will have the same result as if the participant had 
expressly revoked his or her participation in the Initiative. As of the 
date of the action constituting such implied revocation, any covered 
claims will be processed in the same manner as if the participant had 
not elected to participate in the Initiative. Grounds for implied 
revocation of participation include, but are not limited to:
    (1) The failure of the participant or representative, as 
appropriate, to comply with any of the time limits set forth in Sec.  
20.1504(a) of this part;
    (2) The failure to waive initial consideration by the agency of 
original jurisdiction of any evidence obtained by VA that was not 
considered in the Statement of the Case;
    (3) A request by a participant or representative for an extension 
of any of the time limits set forth in Sec.  20.1504(a) of this part, 
unless a motion for good cause is granted, as described by paragraph 
(e) of this section; and
    (4) Any other failure on the part of the participant to comply with 
the terms of the Agreement and Waiver of Rights, as determined by VA.
    (d) Death of participant. If a participant dies while his or her 
claim is being processed, participation in the Initiative will be 
deemed revoked.
    (e) Extensions. Extensions of any of the time limits described in 
this subpart may only be granted when the participant demonstrates on 
motion that there is good cause for the extension request. At no time 
may time periods be extended beyond those provided by law to all 
claimants and appellants. Examples of good cause include, but are not 
limited to, illness of the participant or the representative of such 
severity that precludes action during the period;

[[Page 20579]]

death of an individual representative; illness or incapacity of an 
individual representative that renders it impractical for a participant 
to continue with him or her as representative; or withdrawal of an 
individual representative. Motions for extensions must be filed prior 
to the expiration of the time period for which a motion is being 
requested. Motions must be in writing, and filed with the participating 
VA regional office that has jurisdiction over the claim, unless the 
case has been certified and transferred to the Board, in which case the 
motion must be filed with the Board. Motions must include the name of 
the participant, the applicable Department of Veterans Affairs file 
number; and an explanation as to why the extension request is being 
made.

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

Sec.  20.1510  Rule 1510. Termination of the Initiative.

    VA may terminate the Initiative at any time. In the event of such 
termination, VA will notify participants and their representatives in 
writing and inform them that any covered claims will be processed from 
the date of termination in the same manner as if the participant had 
not elected to participate in the Initiative.

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


[FR Doc. E8-8099 Filed 4-15-08; 8:45 am]
BILLING CODE 8320-01-P