[Federal Register Volume 74, Number 127 (Monday, July 6, 2009)]
[Rules and Regulations]
[Pages 31854-31857]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-15860]


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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: Final rule.

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SUMMARY: This document amends 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 was expanded by the Veterans 
Claims Assistance Act of 2000. This rulemaking incorporates those 
provisions in VA's regulations. 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 is making changes to improve 
readability and other clarifying changes that are nonsubstantive.

DATES: Effective Date: This final rule is effective August 5, 2009.
    Applicability Date: For information concerning the date of 
applicability, see the Supplementary Information section of this 
document.

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 a document published in the Federal 
Register on July 1, 2008 (73 FR 37402), we proposed to amend 
regulations governing 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. We provided a 60-day 
comment period that ended on September 2, 2008.
    We received comments from one organization and one individual. With 
respect to the individual commenter, the submission stated ``see the 
attached for proposed changes to this regulation,'' yet we did not 
receive an attachment or the commenter's contact information. 
Consequently, we make no changes based on the commenter's submission.
    The organization commented with respect to the 30-day period in 
proposed 38 CFR 21.32(a)(3) and (d) after which VA may decide a claim 
if the claimant has not responded to the notification provided under 
proposed Sec.  21.32(a) concerning information and evidence that is 
necessary to substantiate the claim. The commenter expressed the view 
that 30 days from the date of notice is not sufficient time for a 
claimant to respond. It asserted that after taking into account time 
after the date of the notice until receipt by the claimant, and time 
for mailing back to VA, the 30-day period ``will effectively give most 
disabled veterans only about 15 days from receipt of your letter in 
which to digest its contents, obtain assistance and/or needed 
documentation, and prepare and mail a response to you.'' We do not 
agree with this comment and make no change in the 30-day period based 
on the comment.
    We note that the commenter provided no evidence supporting its 
assertions as to the time that is involved prior to receipt of VA's 
notice and that is needed to allow for receipt by VA of the claimant's 
response. Even considering that there may be significantly less than 
the full 30 days to prepare a response, a claimant need not provide all 
the information and evidence within the 30-day period. A claimant may 
delay VA action beyond the 30 days by simply responding with a request 
that VA wait beyond the 30-day period. We believe that the 30-day time 
period referred to in proposed Sec.  21.32(a)(3) and (d) 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. Further, whether 
or not the claimant responds within 30 days, proposed Sec.  21.32 
provided a one-year time limit for receipt by VA of the information of 
evidence referred to in the notice, and for readjudication if VA had 
decided the claim prior to the one-year time period. In addition, we 
note that the 30-day time period is supported by administrative 
concerns, and is intended to assure that a lack of response does not 
unnecessarily delay a VA decision on the claim.
    With respect to proposed Sec.  21.33(d), the commenter stated that 
it would be ``unreasonable to expect that VA will be able to determine 
from a cursory review of a `substantially complete application' that 
there is no reasonable possibility that any notice and/or assistance 
the VA would provide to the claimant would substantiate the claim.'' 
However, under proposed Sec.  21.33(d), more than a cursory review 
would be involved before deciding to discontinue providing assistance. 
VA would be required to evaluate the application for benefits to 
determine whether any of the four circumstances under which VA will 
discontinue assistance exists. Further, the provision is consistent 
with principles relied upon throughout 38 CFR part 21. (See 38 CFR 
21.1032(d) concerning VA's duty to assist claimants for VA education 
benefits.) We do not believe any change is warranted based on this 
comment.
    VA appreciates the submissions in response to the proposed rule. 
For the reasons stated above and those in the notice of proposed 
rulemaking, the proposed rule is adopted as a final rule without 
change.
    The preamble to the proposed rule provided notice of our intent 
that its provisions be applicable to claims filed on or after the 
effective date of the final rule. In accordance with that statement of 
our intent, VA will apply the provisions of this final rule to claims 
for vocational rehabilitation benefits and services filed on or after 
August 5, 2009.

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 year. This final 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

[[Page 31855]]

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 final 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 final rule 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 final rule will not directly affect any small entities. Only 
individuals could be directly affected. Therefore, pursuant to 5 U.S.C. 
605(b), this final rule 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 will be affected by this final 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: June 29, 2009.
John R. Gingrich,
Chief of Staff, Department of Veterans Affairs.

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For the reasons stated in the preamble, VA amends 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

0
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.


0
2. The subpart A heading is revised as set forth above.
0
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 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

[[Page 31856]]

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))


0
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 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;

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    (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

0
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.


0
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. E9-15860 Filed 7-2-09; 8:45 am]
BILLING CODE 8320-01-P