[Federal Register Volume 74, Number 217 (Thursday, November 12, 2009)]
[Proposed Rules]
[Pages 58232-58234]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-27077]



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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AN33


Claim-Related Documents or Supporting Evidence Not of Record

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to add a new 
section to its adjudication regulations to establish temporary VA 
procedures for when claimants allege the submission of claim-related 
documents or evidence in support of a claim during the time period of 
April 14, 2007, through October 14, 2008, and such documents or 
evidence are not of record in the official VA file.

DATES: Comments must be received by VA on or before January 11, 2010.

ADDRESSES: Written comments may be submitted through ``http://www.Regulations.gov;'' by mail or hand-delivery to Director, Regulation 
Policy and Management (02REG), Department of Veterans Affairs, 810 
Vermont Ave., NW., Room 1068, Washington, DC 20042; or by fax to (202) 
273-9026. Comments should indicate that they are submitted in response 
to ``RIN 2900-AN33--Claim-Related Documents or Supporting Evidence Not 
of Record.'' 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) 461-4923 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: Thomas J. Kniffen, Chief, Regulations 
Staff (211D), Compensation and Pension Service, Veterans Benefits 
Administration, Department of Veterans Affairs, 810 Vermont Ave., NW., 
Washington, DC 20420, (202) 461-9725 (This is not a toll-free number).

SUPPLEMENTARY INFORMATION: On August 20, 2008, VA's Office of Inspector 
General (OIG) initiated an audit of select Veterans Benefits 
Administration (VBA) regional office (RO) mail processing procedures. 
VBA receives and processes approximately 25 million documents each 
year. The OIG audit team examined mail-handling activities and the 
activity that places claims under electronic control in four ROs. The 
audit team found 36 pieces of active mail and 93 original support 
documents improperly designated for destruction by shredding. Documents 
identified as designated for destruction included, among other things, 
the following: VA Form 21-526, Veteran's Application for Compensation 
and/or Pension; VA Form 21-686c, Declaration of Status of Dependents; 
VA Form 21-674, Request for Approval of School Attendance; and 
documents constituting informal claims.
    VA recognizes that the OIG's findings may have been indicative of a 
document-handling or shredding problem affecting numerous ROs at the 
time of the OIG audit and that this problem may have adversely impacted 
some veterans. In response to these findings, the Secretary suspended 
all document-shredding activities and provided new guidance and 
training to all RO personnel regarding the handling and shredding of 
claim-related documents and evidence in support of a claim. The 
Secretary also decided to establish temporary claims-handling 
procedures for veterans who allege that they submitted claim-related 
documents or evidence in support of a claim during the time period of 
April 14, 2007, through October 14, 2008, that are not of record in 
official VA files. This rule would codify the temporary claims-handling 
procedures, which include a relaxed evidentiary standard for the 
adjudication of claims involving alleged submissions of documents or 
evidence during this 18-month time period. These temporary procedures 
would reflect VA's pro-veteran response to the OIG's findings of 
improper document handling and control at the ROs.
    October 14, 2008, is the date on which the Secretary suspended all 
document-shredding activities following the OIG audit. To ensure that 
claimants who may have been affected by the former document shredding 
activities have an opportunity to make assertions regarding missing 
documents, we propose to establish an 18-month time period from April 
14, 2007, through October 14, 2008, during which affected claimants may 
receive the benefit of certain liberalized procedures. As we describe 
in greater detail below, the proposed 18-month period is based upon 
VA's claims adjudication experience. With regard to lost claims or 
applications for benefits, based on our experience, VA takes on average 
6 months to process a claim. VA added an additional 12 months to 
reflect a reasonable amount of time for a claimant to learn that a 
submitted claim-related document may have been lost or mishandled by 
the RO.
    With regard to lost evidence in support of a claim, the RO most 
likely would have issued a decision or a supplemental statement of the 
case within 18 months from the date of the alleged submission of 
evidence. Because the RO is required to summarize the evidence that it 
considered in denying a claim for benefits (38 U.S.C. 5104(b)(2)), a 
decision would have revealed that the RO had not considered the alleged 
submitted evidence. Also, the RO is required to address in a 
supplemental statement of the case new evidence submitted subsequent to 
the filing of a statement of the case (38 CFR 19.31(b)).
    With regard to lost notices of disagreement, the RO is required to 
issue a statement of the case (38 U.S.C. 7105(d)) and usually does so 
within a year after receiving a notice of disagreement. With regard to 
lost substantive appeals, the Board, as a matter of practice soon after 
the processing of a formal appeal, will notify a claimant that an 
appeal has been certified to the Board for appellate review and that 
the appellate record has been transferred to the Board (38 CFR 
20.1304(a)).
    Thus, we believe that, if a veteran contends that he or she 
submitted a claim-related document or evidence in support of a claim 
before April 14, 2007, the veteran reasonably would have inquired about 
the document submission or would have been informed of its misplacement 
or destruction within 18 months from the asserted date of submission, 
or prior to October 14, 2008.
    We are particularly interested in comments regarding the proposed 
establishment of the 18-month period of April 14, 2007, through October 
14, 2008, for an alleged submission of a claim-related document or 
evidence that is missing from official VA files for which VA will 
consider the asserted date of submission as the actual date of 
submission.
    This rule would require a claimant to notify the RO within one year 
of the effective date of the final rule implementing the temporary 
claims handling procedures of an alleged submission during the 18-month 
period of April 14, 2007, through October 14, 2008. The one-year 
deadline reasonably gives claimants time to inform ROs of alleged 
submissions during the 18-month period and would be consistent with the 
12-month time period given to claimants to file a Notice of 
Disagreement. After the expiration of this one-year period, VA would 
amend its regulations to remove the obsolete provisions in proposed 
Sec.  3.218.

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    For claims allegedly submitted between April 14, 2007, and October 
14, 2008, the effective date would be established in accordance with 
the date asserted by the claimant as the date on which the Secretary 
received the claim.
    In general practice, when a claimant asserts the submission of a 
claim-related document or evidence in support of a claim that was not 
of record in the official VA file, VA requests the claimant to submit 
any available secondary evidence that would support the alleged 
previous submission. For example, VA would ask a claimant to submit a 
copy of the claim-related document or evidence date stamped by VA or 
the claimant's representative, or a dated transmittal or cover sheet 
from the claimant or claimant's representative relating to the 
pertinent document, together with copies of any documents that were 
included with the alleged previous submission. Accordingly, if a 
claimant asserts that a document was originally filed before April 14, 
2007, or after October 14, 2008 (or if a claimant asserts after the 
one-year period following the effective date of the final rule that a 
document was originally filed during the time period of April 14, 2007, 
through October 14, 2008) and such document is not of record in 
official VA files, VA would ask the claimant to submit similar 
secondary evidence to support the alleged previous submission, 
consistent with VA's general practice. If entitlement to benefits is 
established under this scenario, VA would assign an effective date in 
accordance with the facts found based on credible corroborating 
evidence submitted by the claimant and applicable laws and regulations.

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 given year. This 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, 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 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 entitlement 
recipients; 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.
    VA has examined the economic, interagency, budgetary, legal, and 
policy implications of this proposed rule and has concluded that it is 
a significant regulatory action under Executive Order 12866 because it 
is likely to result in a rule that may raise novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the Executive Order.

Paperwork Reduction Act

    This document contains no provisions constituting a new collection 
of information under the Paperwork Reduction Act of 1995 (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. The rule could affect only VA beneficiaries and would 
not directly affect small entities. Therefore, pursuant to 5 U.S.C. 
605(b), this rule would be exempt from the initial and final regulatory 
flexibility analyses requirements of sections 603 and 604.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance program numbers and 
titles for this rule are as follows: 64.104, Pension for Non-Service-
Connected Disability for Veterans; 64.105, Pension to Veterans, 
Surviving Spouses, and Children; 64.109, Veterans Compensation for 
Service-Connected Disability; and 64.110, Veterans Dependency and 
Indemnity Compensation for Service-Connected Death.

List of Subjects in 38 CFR part 3

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

    Approved: August 11, 2009.
John R. Gingrich,
Chief of Staff, Department of Veterans Affairs.

    For the reasons set forth in the preamble, the Department of 
Veterans Affairs proposes to amend 38 CFR part 3 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.  3.218 to read as follows:


Sec.  3.218  Claim-Related Documents or Supporting Evidence Not of 
Record.

    (a) Submissions during the time period of April 14, 2007, through 
October 14, 2008. If a claimant or claimant's representative asserts 
that a claim-related document or evidence in support of a claim was 
originally filed with VA during the time period of April 14, 2007, 
through October 14, 2008, and such document or evidence is missing from 
official VA files, VA will consider the asserted date of submission as 
the actual date of submission. VA will apply procedures under this 
section only for assertions made before the end of the 1-year period 
following [EFFECTIVE DATE OF FINAL RULE].
    (b) Additional requirements and procedures for alleged submissions 
under paragraph (a). (1) If the claimant's assertion refers to an 
original claim, a claim for increased benefits, or a claim for 
reopening, the claimant must submit either a copy of the previously 
submitted claim form or a new claim form. VA will provide the claimant 
with assistance and notification of the required evidence and 
information upon receipt of a substantially complete application, as 
necessary under Sec.  3.159 of this part, and will develop the claim 
pursuant to existing procedures.
    (2) If the claimant's assertion refers to evidence in support of a 
claim, the claimant must identify the claim to which the evidence 
pertains and submit a copy of the evidence, or, if the evidence is no 
longer available, a description of such evidence or a completed VA Form 
21-4142.

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    (3) If the claimant's assertion refers to a document relating to 
the appeal of an administrative decision, such as a notice of 
disagreement or substantive appeal, VA will follow proper appeal 
procedures based on date of receipt of the document, as determined 
under this section.
    (4) If the only issue raised by the claimant's assertion concerns 
the effective date of an award for benefits for a claim already 
decided, VA will establish the proper effective date without additional 
development.
    (c) Effective dates. For claims allegedly submitted between April 
14, 2007, and October 14, 2008, the effective date will be established 
in accordance with the date asserted by the claimant as the date on 
which the Secretary received the claim.

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

[FR Doc. E9-27077 Filed 11-10-09; 8:45 am]
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