[Federal Register Volume 73, Number 127 (Tuesday, July 1, 2008)]
[Proposed Rules]
[Pages 37402-37406]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-14823]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 21

RIN 2900-AM91


Vocational Rehabilitation and Employment Program--Duty To Assist

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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

SUMMARY: This document proposes to amend the vocational rehabilitation 
and employment regulations of the Department of Veterans Affairs (VA) 
concerning VA's responsibility to provide notification regarding 
information or evidence needed for an individual to substantiate a 
claim for vocational rehabilitation benefits and services, and 
regarding applicable time periods. VA's duty to assist claimants in 
substantiating their claims for benefits is expanded by The Veterans 
Claims Assistance Act of 2000, and is

[[Page 37403]]

incorporated in this rulemaking. Specifically, upon receipt of a 
substantially complete application for benefits, VA will make 
reasonable efforts to help the claimant obtain the evidence necessary 
to substantiate the claim. In addition, VA proposes to make changes to 
improve readability and other clarifying changes that are 
nonsubstantive.

DATES: Comments must be received on or before September 2, 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 Ave., NW., Room 1068, Washington, DC 20420; or by fax to (202) 
273-9026. Comments should indicate that they are submitted in response 
to ``RIN 2900-AM91--Vocational Rehabilitation and Employment Program--
Duty to Assist.'' 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 phone 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: Alvin Bauman, Senior Policy Analyst, 
Vocational Rehabilitation and Employment Service (28), Veterans 
Benefits Administration, Department of Veterans Affairs, 810 Vermont 
Ave., NW., Washington, DC 20420, (202) 461-9613.

SUPPLEMENTARY INFORMATION: In 38 CFR part 21, Subpart A--Vocational 
Rehabilitation Under 38 U.S.C. Chapter 31, we propose to amend VA's 
regulations concerning claims for vocational rehabilitation and 
employment benefits and services, by amending 38 CFR 21.32 and adding 
Sec.  21.33 with regard to VA's duty to assist claimants and applicable 
time limits. Those provisions would apply to claimants for such 
benefits and services under 38 U.S.C. chapter 31, Training and 
Rehabilitation for Veterans with Service-Connected Disabilities and 38 
U.S.C. chapter 18, Benefits for Children of Vietnam Veterans and 
Certain Other Veterans.
    The Veterans Claims Assistance Act of 2000 (Pub. L. 106-475) 
(VCAA), enacted November 9, 2000, included provisions amending 38 
U.S.C. 5102 and 5103 and adding new sections 38 U.S.C. 5100 and 5103A, 
pertaining to VA's duty to assist claimants in obtaining evidence in 
support of claims for benefits. Upon receipt of a substantially 
complete application for benefits, VA's duty under the VCAA is to make 
reasonable efforts to help the claimant obtain the evidence necessary 
to substantiate the claim. This effort is commonly referred to as the 
``duty to assist.'' VA will refrain from providing assistance in 
obtaining evidence for a claim if the substantially complete 
application for benefits indicates that there is no reasonable 
possibility that any assistance VA would provide to the claimant would 
substantiate the claim. Similarly, VA will discontinue providing 
assistance in obtaining evidence for a claim if the evidence obtained 
indicates that there is no reasonable possibility that further 
assistance would substantiate the claim. Finally, VA will not consider 
the receipt of a notice of disagreement relating to a claim as an 
``application'' for benefits that would trigger its duty to assist. 
Section 701 of the Veterans Benefits Act of 2003 (Pub. L. 108-183) 
further amended 38 U.S.C. 5102 and 5103 regarding time limitations 
relevant to claimant's applications. Public Law 108-183 allows VA to 
decide a claim before the one-year time limit for submitting evidence 
expires.
    Under 38 U.S.C. 5103A(e), VA is directed to prescribe regulations 
to carry out the provisions of section 5103A. In the Federal Register 
of August 29, 2001 (66 FR 45620), VA issued a final rule amending 38 
CFR part 3, subpart A, to carry out those and other provisions of the 
VCAA with respect to claims for benefits that are governed by 38 CFR 
part 3 (including compensation, pension, dependency and indemnity 
compensation, burial benefits, monetary benefits ancillary to those 
benefits, and special benefits) (66 FR at 45629).
    In the Federal Register of April 30, 2008 (73 FR 23353), VA 
published a final rule amending provisions in 38 CFR 3.159 that were 
included in those 2001 regulations. The final rule was based on the 
rationale in its preamble and in the preamble to a proposed rule that 
VA published on October 31, 2006 (71 FR 63732). Those amendments were 
intended, in part, to clarify when VA has no duty to provide notice 
under 38 U.S.C. 5103(a) ``of any information, and any medical or lay 
evidence, not previously provided to the Secretary that is necessary to 
substantiate'' a claim for benefits. In particular, that rule included 
provisions that were intended to clarify that VA's receipt of a notice 
of disagreement (the means to initiate an appeal of a decision on a 
claim to the Board of Veterans' Appeals, under 38 U.S.C. 7105 and 38 
CFR 20.200) does not trigger VA's duty to provide that notice. (See 73 
FR 23353-23354, 23356; 71 FR 63732-63734.)
    In addition, in the Federal Register of April 5, 2007 (72 FR 
16962), VA published a final rule that included provisions concerning, 
among other matters, VA's duty to assist claimants for VA education 
benefits. The final rule was based on the rationale in its preamble and 
in the preamble to a proposed rule that VA published in the Federal 
Register of February 22, 2006 (71 FR 9196). The final rule's provisions 
concerning VA's duty to assist claimants for VA education benefits, 
which were adopted without change from those in the proposed rule, are 
contained in 38 CFR 21.1031 and 21.1032.
    We propose to amend Sec.  21.32 and to add Sec.  21.33 to describe 
VA's responsibilities for notifying the claimant of necessary 
information or evidence when a claim for vocational rehabilitation and 
employment benefits is filed, the time periods for response by the 
claimant or in which VA may take action in adjudicating the claim, and 
VA's duty to assist claimants in obtaining evidence. In particular, we 
are proposing that VA may decide the claim if the claimant has not 
responded to that notice within 30 days from the date of the notice, as 
set forth in proposed Sec.  21.32(d). Under that paragraph, if the 
claimant subsequently submits the specified evidence or information 
within one year of VA's request, VA must readjudicate the claim. We 
believe that 30 days is a reasonable time period for these claimants to 
respond. It is specifically supported by our experience in 
administering VA's vocational rehabilitation programs, and is the same 
time for response provided in other circumstances under those programs. 
A claimant may delay VA action beyond the 30 days by responding with a 
request that VA wait beyond the 30-day period while the claimant 
attempts to gather evidence. The proposed 30-day time period also is 
based on administrative concerns, and is intended to assure that a lack 
of response does not unnecessarily delay a VA decision on the claim.
    The proposed rule states that, for purposes of 38 CFR 21.32 and 
21.33, the term ``application'' does not include a notice of 
disagreement. This is consistent with the provisions of 38 CFR 
3.159(b)(3) as added, effective May 30, 2008, by the April 30, 2008, 
final rule (73 FR 23353, 23356), and the accompanying rationale 
published by VA in that rule's preamble (73 FR

[[Page 37404]]

23353-23354) and in the preamble to the corresponding proposed rule (71 
FR 63732-63734).
    The proposed changes to Sec.  21.32 are also intended to improve 
readability, including by removing provisions in current Sec.  21.32 
that we believe are unnecessary, and to make other clarifying changes 
that are nonsubstantive.
    These proposed rules would apply to the vocational rehabilitation 
programs administered by the Secretary and would apply to claims for 
vocational rehabilitation benefits and services filed on or after the 
effective date of the final rule.
    Finally, we propose to add Sec.  21.8015 to Subpart M of part 21 to 
clarify VA's responsibilities to claimants who apply for vocational 
rehabilitation benefits and services under that subpart. The proposed 
section would provide that Sec. Sec.  21.32 and 21.33, which are 
located in subpart A, would apply also to claims for such benefits and 
services under subpart M.

Paperwork Reduction Act of 1995

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

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 the 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.

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 because it 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.

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed regulatory 
amendment 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. This proposed amendment would not 
directly affect any small entities. Only individuals could be directly 
affected. 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.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs that would be affected by this proposed rule are 64.116, 
Vocational Rehabilitation for Disabled Veterans, and 64.128, Vocational 
Training and Rehabilitation for Vietnam Veterans' Children with Spina 
Bifida or Other Covered Defects.

List of Subjects in 38 CFR Part 21

    Administrative practice and procedure, Armed forces, Civil rights, 
Claims, Colleges and universities, Conflict of interests, Education, 
Employment, Grant programs-education, Grant programs-veterans, Health 
care, Loan programs-education, Loan programs-veterans, Manpower 
training programs, Reporting and recordkeeping requirements, Schools, 
Travel and transportation expenses, Veterans, Vocational education, 
Vocational rehabilitation.

    Approved: March 21, 2008.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.

    For the reasons set forth in the preamble, VA proposes to amend 38 
CFR part 21 (subparts A and M) as follows:

PART 21--VOCATIONAL REHABILITATION AND EDUCATION

Subpart A--Vocational Rehabilitation and Employment Under 38 U.S.C. 
Chapter 31

    1. The authority citation for part 21, subpart A is revised to read 
as follows:

    Authority: 38 U.S.C. 501(a), chs. 18, 31, and as noted in 
specific sections.

    2. The Subpart A heading is revised as set forth above.
    3. Revise Sec.  21.32 to read as follows:


Sec.  21.32  Notification by VA of necessary information or evidence 
when a claim is filed; time for claimant response and VA action.

    The provisions of this section apply to claims that are governed by 
this subpart or subpart M of this part.
    (a) VA has a duty to notify claimants of necessary information or 
evidence. Except when a claim cannot be substantiated because there is 
no legal basis for the claim, or undisputed facts render the claimant 
ineligible for the claimed benefit, when VA receives a complete or 
substantially complete application for vocational rehabilitation 
benefits and services provided under this subpart or subpart M of this 
part VA will:
    (1) Notify the claimant of any information and evidence that is 
necessary to substantiate the claim;
    (2) Inform the claimant which information and evidence, if any, the 
claimant is to provide to VA and which information and evidence, if 
any, VA will try to obtain for the claimant; and
    (3) Inform the claimant of the time limit, as provided in paragraph 
(c) of this section, for responding to VA's notification, and of 
actions, as provided in paragraph (d) of this section, that VA may take 
to decide the claim if the claimant does not respond to such 
notification within 30 days.
    (b) Definitions for purposes of Sec. Sec.  21.32 and 21.33. For 
purposes of this section and Sec.  21.33:
    (1) The term application does not include a notice of disagreement.
    (2) The term notification means the notice described in paragraph 
(a) of this section.
    (3) The term substantially complete application means, for an 
individual's first application for vocational

[[Page 37405]]

rehabilitation benefits and services administered by VA, an application 
containing:
    (i) The claimant's name;
    (ii) His or her relationship to the veteran, if applicable;
    (iii) Sufficient information for VA to verify the claimed service, 
if applicable; and
    (iv) The benefit claimed.
    (4) The term information means nonevidentiary facts, such as the 
claimant's Social Security number or address, or the name of the 
educational institution the claimant is attending.
    (c) Time limit. Any information and evidence described in the 
notification as information and evidence that the claimant is to 
provide must be received by VA within one year from the date of the 
notification. If VA does not receive the information and evidence from 
the claimant within that time period, VA may adjudicate the claim based 
on the information and evidence in the file.
    (d) Actions VA may take after 30 days if no response from claimant. 
If the claimant has not responded to the notification within 30 days, 
VA may decide the claim before the expiration of the one-year period, 
based on all the information and evidence in the file, including 
information and evidence it has obtained on behalf of the claimant. If 
VA does so, however, and the claimant subsequently provides the 
information and evidence specified in the notification within one year 
of the date of the notification, VA must readjudicate the claim. If 
VA's decision on a readjudication is favorable to the claimant, the 
award of vocational rehabilitation benefits and services shall take 
effect as if the prior decision by VA on the claim had not been made.
    (e) Incomplete applications. If VA receives an incomplete 
application for benefits, it will notify the claimant of the 
information necessary to complete the application and will defer 
assistance until the claimant submits this information. If the 
information necessary to complete the application is not received by VA 
within one year from the date of such notice, VA cannot pay or provide 
any benefits based on that application.
    (f) Who VA will notify. For the purpose of this section, when VA 
seeks to notify a claimant, it will provide such notice to:
    (1) The claimant;
    (2) His or her fiduciary, if any; and
    (3) His or her representative, if any.

    (Authority: 38 U.S.C. 5102, 5103, 5103A(a)(3))

    4. Immediately after Sec.  21.32 and prior to the cross-reference, 
add Sec.  21.33, to read as follows:


Sec.  21.33  VA has a duty to assist claimants in obtaining evidence.

    The provisions of this section apply to claims that are governed by 
this subpart or subpart M of this part.
    (a) VA's duty to assist begins when VA receives a complete or 
substantially complete application. (1) Except as provided in paragraph 
(d) of this section, upon receipt of a complete or substantially 
complete application for vocational rehabilitation benefits and 
services under this subpart or subpart M of this part, VA will:
    (i) Make reasonable efforts to help a claimant obtain evidence 
necessary to substantiate the claim; and
    (ii) Give the assistance described in paragraphs (b) and (c) of 
this section to an individual attempting to reopen a finally decided 
claim.
    (2) VA will not pay any fees a custodian of records may charge to 
provide the records VA requests.

(Authority: 38 U.S.C. 5103A)

    (b) Obtaining records not in the custody of a Federal department or 
agency. (1) VA will make reasonable efforts to obtain relevant records 
not in the custody of a Federal department or agency. These records 
include relevant records from:
    (i) State or local governments;
    (ii) Private medical care providers;
    (iii) Current or former employers; and
    (iv) Other non-Federal governmental sources.
    (2) The reasonable efforts described in paragraph (b)(1) of this 
section will generally consist of an initial request for the records 
and, if VA does not receive the records, at least one follow-up 
request. The following are exceptions to this provision concerning the 
number of requests that VA generally will make:
    (i) VA will not make a follow-up request if a response to the 
initial request indicates that the records sought do not exist or that 
a follow-up request for the records would be futile.
    (ii) If VA receives information showing that subsequent requests to 
this or another custodian could result in obtaining the records sought, 
reasonable efforts will include an initial request and, if VA does not 
receive the records, at least one follow-up request to the new source 
or an additional request to the original source.
    (3) The claimant must cooperate fully with VA's reasonable efforts 
to obtain relevant records from non-Federal agency or department 
custodians. The claimant must provide enough information to identify 
and locate the existing records, including:
    (i) The person, company, agency, or other custodian holding the 
records;
    (ii) The approximate time frame covered by the records; and
    (iii) In the case of medical treatment records, the condition for 
which treatment was provided.
    (4) If necessary, the claimant must authorize the release of 
existing records in a form acceptable to the person, company, agency, 
or other custodian holding the records.

(Authority: 38 U.S.C. 5103A)

    (c) Obtaining records in the custody of a Federal department or 
agency. (1) Subject to paragraphs (c)(2) through (c)(4) of this 
section, VA will make as many requests as are necessary to obtain 
relevant records from a Federal department or agency. These records 
include but are not limited to:
    (i) Military records;
    (ii) Medical and other records from VA medical facilities;
    (iii) Records from non-VA facilities providing examination or 
treatment at VA expense; and
    (iv) Records from other Federal agencies.
    (2) VA will cease its efforts to obtain records from a Federal 
department or agency only if VA concludes that the records sought do 
not exist or that further efforts to obtain those records would be 
futile. Cases in which VA may conclude that no further efforts are 
required include cases in which the Federal department or agency 
advises VA that the requested records do not exist or that the 
custodian of such records does not have them.
    (3) The claimant must cooperate fully with VA's reasonable efforts 
to obtain relevant records from Federal department or agency 
custodians. At VA's request, the claimant must provide enough 
information to identify and locate the existing records, including:
    (i) The custodian or agency holding the records;
    (ii) The approximate time frame covered by the records; and
    (iii) In the case of medical treatment records, the condition for 
which treatment was provided.
    (4) If necessary, the claimant must authorize the release of 
existing records in a form acceptable to the custodian or agency 
holding the records.

(Authority: 38 U.S.C. 5103A)

    (d) Circumstances where VA will refrain from or discontinue 
providing assistance. VA will refrain from providing assistance in 
obtaining evidence for a claim if the substantially complete or 
complete application for benefits indicates that there is no reasonable 
possibility that any assistance VA would provide to the

[[Page 37406]]

claimant would substantiate the claim. VA will discontinue providing 
assistance in obtaining evidence for a claim if the evidence obtained 
indicates that there is no reasonable possibility that further 
assistance would substantiate the claim. Circumstances in which VA will 
refrain from or discontinue providing assistance in obtaining evidence 
include but are not limited to:
    (1) The claimant's ineligibility for the benefit sought because of 
lack of qualifying service, lack of veteran status, or other lack of 
legal eligibility;
    (2) Claims that are inherently not credible or clearly lack merit;
    (3) An application requesting a benefit to which the claimant is 
not entitled as a matter of law; and
    (4) The claimant's lack of cooperation in providing or requesting 
information or evidence necessary to substantiate the claim.

(Authority: 38 U.S.C. 5103A)

    (e) Duty to notify claimant of inability to obtain records. (1) VA 
will notify the claimant either orally or in writing when VA:
    (i) Has made reasonable efforts to obtain relevant non-Federal 
records, but is unable to obtain them; or
    (ii) After continued efforts to obtain Federal records, concludes 
that it is reasonably certain they do not exist or that further efforts 
to obtain them would be futile.
    (2) For non-Federal records requests, VA may provide the notice to 
the claimant at the same time it makes its final attempt to obtain the 
relevant records.
    (3) VA will make a written record of any oral notice conveyed under 
this paragraph to the claimant.
    (4) The notice to the claimant must contain the following 
information:
    (i) The identity of the records VA was unable to obtain;
    (ii) An explanation of the efforts VA made to obtain the records;
    (iii) The fact described in paragraph (e)(1)(i) or (e)(1)(ii) of 
this section;
    (iv) A description of any further action VA will take regarding the 
claim, including, but not limited to, notice that VA will decide the 
claim based on the evidence of record unless the claimant submits the 
records VA was unable to obtain; and
    (v) A notice that the claimant is ultimately responsible for 
obtaining the evidence.
    (5) If VA becomes aware of the existence of relevant records before 
deciding the claim, VA will notify the claimant of the existence of 
such records and ask that the claimant provide a release for the 
records. If the claimant does not provide any necessary release of the 
relevant records that VA is unable to obtain, VA will ask that the 
claimant obtain the records and provide them to VA.
    (6) For the purpose of this section, if VA must notify the 
claimant, VA will provide notice to:
    (i) The claimant;
    (ii) His or her fiduciary, if any; and
    (iii) His or her representative, if any.

(Authority: 38 U.S.C. 5102, 5103(a), 5103A)

Subpart M--Vocational Training and Rehabilitation for Certain 
Children of Vietnam Veterans--Spina Bifida and Covered Birth 
Defects

    5. The authority citation for part 21, subpart M continues to read 
as follows:

    Authority: 38 U.S.C. 101, 501, 512, 1151 note, ch. 18, 5112, and 
as noted in specific sections.

    6. Add Sec.  21.8015 to read as follows:


Sec.  21.8015  Notification by VA of necessary information or evidence 
when a claim is filed; time for claimant response and VA action; and 
VA's duty to assist claimants in obtaining evidence.

    The provisions of Sec. Sec.  21.32 and 21.33 of subpart A of this 
part also apply to claims for benefits and services under this subpart.

 [FR Doc. E8-14823 Filed 6-30-08; 8:45 am]
BILLING CODE 8320-01-P