[Federal Register Volume 79, Number 186 (Thursday, September 25, 2014)]
[Rules and Regulations]
[Pages 57660-57698]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-22633]
[[Page 57659]]
Vol. 79
Thursday,
No. 186
September 25, 2014
Part II
Department of Veteran Affairs
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38 CFR Parts 3, 19, and 20
Standard Claims and Appeals Forms; Final Rule
Federal Register / Vol. 79 , No. 186 / Thursday, September 25, 2014 /
Rules and Regulations
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Parts 3, 19, and 20
RIN 2900-AO81
Standard Claims and Appeals Forms
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: The Department of Veterans Affairs (VA) amends its
adjudication regulations and the appeals regulations and rules of
practice of the Board of Veterans' Appeals (Board) to require that all
claims governed by VA's adjudication regulations be filed on standard
forms prescribed by the Secretary, regardless of the type of claim or
posture in which the claim arises. This rulemaking also eliminates the
constructive receipt of VA reports of hospitalization or examination
and other medical records as informal claims for increase or to reopen
while retaining the retroactive effective date assignment for awards
for claims for increase which are filed on a standard form within 1
year of such hospitalization, examination, or treatment. This final
rule also implements the concept of an intent to file a claim for
benefits, which operates similarly to the current informal claim
process, but requires that the submission establishing a claimant's
effective date of benefits must be received in one of three specified
formats. Finally, these amendments will provide that VA will accept an
expression of dissatisfaction or disagreement with an adjudicative
determination by the agency of original jurisdiction(AOJ) as a Notice
of Disagreement (NOD) only if it is submitted on a standardized form
provided by VA for the purpose of appealing the decision, in cases
where such a form is provided. Although a standardized NOD form will
only initially be provided in connection with decisions on compensation
claims, VA may require a standard NOD form for any type of claim for VA
benefits if, in the future, it develops and provides a standardized NOD
form for a particular benefit. The purpose of these amendments is to
improve the quality and timeliness of the processing of veterans'
claims for benefits by standardizing the claims and appeals processes
through the use of forms.
DATES: Effective Date: This final rule is effective March 24, 2015.
FOR FURTHER INFORMATION CONTACT: Stephanie Li, Chief, Regulations Staff
(211D), Compensation Service, Department of Veterans Affairs, 810
Vermont Avenue NW., Washington, DC 20420, (202) 461-9700. (This is not
a toll-free number.)
SUPPLEMENTARY INFORMATION:
Executive Summary
I. Purpose of the Final Rule
The Department of Veterans Affairs (VA) amends its adjudication
regulations and its appeals regulations and rules of practice of the
Board of Veterans' Appeals (Board) for the purpose of improving the
quality and timeliness of the processing of veterans' claims for
benefits and appeals. Under 38 U.S.C. 501(a), VA is authorized to make
these regulatory changes as it is granted broad authority to
``prescribe all rules and regulations which are necessary or
appropriate to carry out the laws administered by [VA] and are
consistent with those laws,'' including specifically authority to
prescribe ``the forms of application by claimants under such laws.''
Congress has characterized a request for Board review as an
``[a]pplication for review on appeal.'' 38 U.S.C. 7106, 7107, 7108.
Additionally, 38 U.S.C. 5101 explicitly provides that claimants must
file ``a specific claim in the form prescribed by the Secretary'' in
order for VA to pay benefits.
II. Summary of Major Provisions
The major provisions of this final rule include the following: VA
will standardize the claims and appeals processes through the use of
specific mandatory forms prescribed by the Secretary, regardless of the
type of claim or posture in which the claim arises. These amendments
will apply to all benefits within the scope of 38 CFR part 3, namely
pension, compensation, dependency and indemnity compensation, and
monetary burial benefits. These changes to VA's adjudication
regulations not only will drive modernization of the claims and appeals
processes, but will also provide veterans, claimants, and authorized
representatives with a clearer and easier way to initiate and file
claims.
These final regulations also eliminate the provisions of 38 CFR
3.157 which allowed various documents other than claims forms to
constitute claims, specifically, VA reports of hospitalization or
examination and other medical records which could be regarded as
informal claims for increase or to reopen a previously denied claim.
Nonetheless, this rule retains the current retroactive effective date
assigned for awards for claims for increased evaluation as long as they
are filed on a standard form within 1 year of such hospitalization,
examination, or treatment.
This final rule further implements a procedure to replace the non-
standard informal claim process in 38 CFR 3.155 by employing a standard
form on which a claimant or his or her representative can file an
``intent to file'' a claim for benefits.
Finally, this final rule provides that VA will accept an expression
of dissatisfaction or disagreement with an adjudicative determination
by the agency of original jurisdiction (AOJ) as a Notice of
Disagreement (NOD) only if it is submitted on a standardized form
provided by VA for the purpose of appealing the decision. This
requirement only applies in cases where VA provides such a form with
the Notice of Appeal Rights sent with the notice of a decision on a
claim. In these cases, this rule replaces the current provision in 38
CFR 20.201 which permitted an appellant to begin the appeal process by
filing in any format a statement that can be ``reasonably construed''
as seeking appellate review. This procedure made the identification of
an appeal a time-intensive and inefficient interpretive exercise,
complicated by the fact that an NOD could be embedded within
correspondence addressing a variety of other matters, often
contributing to delay in VA recognizing that an appellant sought to
initiate an appeal.
VA also adds two new sections to part 19 in this final rule. For
NODs filed on a form provided by the AOJ, new 38 CFR 19.24 will govern.
This provision sets forth the procedures governing the treatment of
incomplete forms, the criteria of a complete form, the timeframe to
cure an incomplete form, the failure to respond to request to cure,
action when a complete form is filed, and clarification of issues which
are not enumerated on the form for appellate review. For NODs filed
where no form is provided by the AOJ, new 38 CFR 19.23 which clarifies
whether the requirements of current 38 CFR 19.26, 19.27, and 19.28, or
newly adopted Sec. 19.24 would apply to a particular case, will
govern. Although a standardized NOD form will only initially be
provided in connection with decisions on compensation claims, VA may
require a standard NOD form for any type of claim for VA benefits if,
in the future, it develops and provides a standardized NOD form for a
particular benefit.
III. Costs and Benefits
This rulemaking will not affect veterans' eligibility for benefits,
but rather prescribe that they must use a
[[Page 57661]]
standard application form to formally apply for benefits. It also
specifies that medical records themselves no longer constitute claims
in the absence of a claim submitted formally. However, the retroactive
effective date treatment for hospitalization, treatment, or examination
under current regulation will apply if a claimant files an intent to
file a claim or a complete claim within one year of such medical care.
Likewise, this rulemaking amends VA's appeals regulations and rules of
practice of the Board of Veterans' Appeals (Board) to provide that VA
will only accept an expression of dissatisfaction or disagreement with
an adjudicative determination by the AOJ as a Notice of Disagreement
(NOD) if it is submitted on a standardized form provided by VA for the
purpose of appealing the decision, in cases where such a form is
provided. This rulemaking seeks to change the format in which claimants
initiate a claim, file a claim, and initiate an appeal through the use
of VA-prescribed forms but does not alter claimants' entitlement to
benefits or the amounts of awards granted.
While there are no substantial monetary burdens on the claimant,
the cost to claimants in submitting complete claims or initiating an
appeal on a prescribed form or submitting expressions of intent to file
in a specified format can be calculated in terms of a claimant's time
to fill out VA forms. Claimants and/or authorized representatives may
need to learn and acclimate themselves to the new intent to file a
claim process, which functions similarly to the current informal claim
process. However, those claimants who are familiar with VA's claims
process may recognize the operation of the intent to file process as
functioning similar to the current informal claim process. The
difference is that the intent to file a claim form serves as the
effective date placeholder like the informal claim itself but must be
submitted in specified standard formats and will only trigger VA's duty
to furnish the claimant the appropriate form.
While VA recognizes this time cost to claimants in completing a
prescribed claim or appeal form, it concludes that this up-front time
burden to claimants is equivalent to (or even lesser than the
unquantifiable time it takes for approximately half of claimants to
compose non-standard submissions and the time VA spends identifying and
clarifying the communication received in non-standard submissions, all
of which add to delays in processing and adjudicating claims and
appeals and the overall timeliness of delivering benefits to claimants.
Therefore, we have determined that the time required by claimants to
fill out forms is less than or equal to the current time burdens on
claimants submitting non-standard submissions along with the time it
takes for VA to identify, clarify, and develop these non-submissions.
This also applies to claimants opting to submit an intent to file a
claim and a complete claim.
By requiring data to be formatted in a standard way through the use
of forms, VA will be able to cut processing time in identifying and
developing claims, which will result in faster delivery of benefits to
all veterans. While approximately half of the claimant population files
non-standard submissions, the other half continues to file claims on a
prescribed form. For the claimant population filing on prescribed
forms, there is no additional burden as a result of this rulemaking.
As previously stated, this rulemaking does not affect the amount of
monies paid to a claimant or entitlement to benefits except in the case
where a claimant who is not familiar with the intent to file a claim
process submits an informal claim which VA will deem as a request for
an application for benefits, resulting in the claimant submitting an
intent to file a claim form or complete claim at a later date. VA
intends to mitigate this situation by delaying the effective date of
this rule by 180 days from publication in order to perform robust
outreach to inform and educate claimants and authorized representatives
of this new standardized procedure of the claims and appeals processes.
This rulemaking will allow VA to decrease the processing time in
identifying, clarifying, and processing non-standard submissions as
claims or appeals since VA will be able to easily target and identify
these claims or initiations of appeals based on the submitted form.
This means increased quality in processing claims as VA would be able
to more accurately identify claims and to correctly assign effective
dates of awards for claims submitted on prescribed forms. Thus,
standardizing the claims and appeals processes through the use of forms
translates to faster delivery of benefits to claimants. In addition,
standardizing submissions on prescribed forms is an essential component
to VA's current and developing electronic business programs which are
designed to facilitate the efficient and accurate processing and
adjudication of claims and appeals. In order to utilize the efficiency
of such programs, data inputs require a standard format which would be
achieved through the use of prescribed forms.
In sum, we are only making procedural changes to the claims process
by mandating the submission of standard forms to initiate a claim or to
file a claim and to the appellate process by mandating the submission
of standard forms where such a form is provided. We have determined
that the costs associated with this rulemaking are mostly in terms of
the burden of time required by claimants and/or their authorized
representatives but such time burdens are equivalent to the current
time burdens in our current claims and appeals processing. Moreover,
the use of standardized forms will result in realtime savings to VA in
identifying, clarifying, and processing claims and appeals. Thus, there
is an overall benefit to the public as a result of this rulemaking. On
October 31, 2013, VA published in the Federal Register (78 FR 65490) a
proposed rule to amend its adjudication regulations and the appeals
regulations and rules of practice of the Board of Veterans' Appeals
(Board). There were several major components of these proposed changes.
The first was to require that all claims be filed on standard forms
prescribed by the Secretary, regardless of the type of claim or posture
in which the claim arises. The second component proposed was to
eliminate the constructive receipt of VA reports of hospitalization or
examination and other medical records as informal claims for increase
or to reopen (see current 38 CFR 3.157) while retaining the beneficial
retroactive effective date that may be assigned for grants for increase
filed on a standard form within 1 year of such hospitalization,
examination, or treatment. The third component proposed that VA would
accept an expression of dissatisfaction or disagreement with an
adjudicative determination by the agency of original jurisdiction (AOJ)
as a Notice of Disagreement (NOD) only if it is submitted on a standard
form provided by VA for the purpose of appealing the decision. VA
proposed that this requirement would apply only in cases where VA
provides the standard form with the Notice of Appeal Rights sent to the
claimant with the notice of a decision on a claim.
VA provided a 60-day public comment period, which ended on December
30, 2013, and received 53 public comments, 4 of which were received
after the comment period expired. Although VA is not legally required
to consider late-filed comments, it has reviewed, considered, and
addressed all comments received in
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the interest of maximizing public dialogue to further serve veterans,
claimants, and authorized representatives. VA received comments from
various organizations and individuals, including The Center for Elder
Veterans Rights; the County Veteran Service Officer Association of
Wisconsin; Veteran Warriors; New York State Division of Veterans'
Affairs; Wounded Warrior Project; Disabled American Veterans; National
Veterans Legal Services Program and the Military Order of the Purple
Heart (jointly submitted); American Legion; Veterans for Common Sense;
Veterans Justice Group, LLC; Veterans of Foreign Wars of the United
States; Military Officers Association of America; Vietnam Veterans of
America; VetsFirst; National Organization of Veterans Advocates;
Paralyzed Veterans of America; State of Illinois Department of
Veterans' Affairs; the law firms of Bergmann and Moore; and Chisholm
Chisholm and Kilpatrick; and other interested persons. We responded to
all commenters as follows.
All of the issues raised by the commenters that concerned at least
one portion of the rule can be grouped together by similar topic, and
we have organized our discussion of the comments accordingly. For the
reasons set forth in the proposed rule and below, we are adopting the
proposed rule as final, with changes, explained below, to proposed 38
CFR 3.1, 3.154, 3.155, 3.160, 3.400, 3.812, 19.24, and 20.201. To
ensure consistency with these changes, we have also implemented changes
to 38 CFR 3.108, 3.109, 3.403, 3.660, 3.665, 3.666, and 3.701.
I. Changes to Initial Claims Process Based on Public Comments
A. Definition of ``Claim''
In proposed Sec. 3.1(p), VA defined ``Claim'' to mean ``a written
communication requesting a determination of entitlement or evidencing a
belief in entitlement, to a specific benefit under the laws
administered by the Department of Veterans Affairs.'' VA proposed to
replace the current term, ``Claim--Application'' which is defined as
``a formal or informal communication in writing requesting a
determination of entitlement or evidencing a belief in entitlement, to
a benefit'' in current paragraph (p). This definition was confusing and
did not make clear the difference between a ``claim'' and an
``application.'' Therefore, VA proposed to clarify the current
definition by eliminating the words ``Application,'' ``formal,'' and
``informal'' in the proposed definition in order to conform with the
amendments to the adjudication regulations.
One commenter stated that the proposed definition of a ``claim''
was inconsistent with proposed Sec. 3.155, which provides that a
standard form which VA determines does not contain all requested
information would not be considered a claim if that document is not
submitted via electronic means. We agree with this comment. In order to
clarify the regulatory definition as proposed, VA has revised this
definition to add that the written communication must be ``submitted on
an application form prescribed by the Secretary.'' This change requires
that the communication be on a VA form in order to be considered a
claim and maintains the essence of the ``formal communication'' in the
current definition of a ``claim'' in Sec. 3.1(p). Therefore, any
written communication requesting a determination of entitlement to a
specific benefit received on or after the effective date of this
rulemaking will be defined as one that has been submitted on a VA-
prescribed form.
B. Claims for Benefits Under 38 U.S.C. 1151
Currently, VA does not require that claims for entitlement to
compensation under 38 U.S.C. 1151, which provides disability
compensation and death benefits for a qualifying disability or death of
a veteran from VA treatment, examination, or vocational rehabilitation,
be submitted or filed on a standard form or application. 38 U.S.C.
1151; 38 CFR 3.150(c), 3.154, 3.361. Because VA is adopting as a final
rule the amendment to its adjudication regulations to require that all
claims be filed on standard forms prescribed by the Secretary, VA is
revising current Sec. 3.150 by removing paragraph (c), which provides
that when disability or death is due to VA hospital treatment,
training, medical or surgical treatment, or examination, a specific
application for benefits will not be initiated.
VA also revises Sec. 3.154, which currently provides that ``VA may
accept as a claim for benefits under 38 U.S.C. 1151 . . . any
communication in writing indicating an intent to file a claim for
disability compensation or dependency and indemnity compensation,'' to
require claimants to file or submit a complete paper or electronic
claim in order to apply for benefits under 38 U.S.C. 1151 and Sec.
3.361, the regulation governing the criteria of entitlement to 38
U.S.C. 1151 benefits. 38 U.S.C. 1151; 38 CFR 3.150 and 3.154.
Commenters stated that requiring claimants to file a complete claim
for this benefit is an unreasonable burden to place on veterans who
allegedly became disabled by VA. One commenter stated that requiring an
application for this benefit would delay an effective date of any award
to the detriment of the claimant.
VA makes no change based on this comment. VA's intent is to
modernize the claims processing system by standardizing the format in
which all disability claims are received. In order for AOJ personnel to
readily identify claims and process them efficiently, it is imperative
that all claims appear in easily identifiable formats using a
standardized form. Similar to VA's current informal claims, VA does not
require that claims for benefits under 38 U.S.C. 1151 be filed on any
particular form. See 38 CFR 3.154. Since these claims are received in a
non-standard format, VA has to determine whether any statements can be
construed as a claim for benefits under 38 U.S.C. 1151. Reviewing and
clarifying these non-standard submissions is extremely time consuming
and can also result in claims being overlooked. VA believes that using
a standard form is a minimal burden to place on claimants, even those
who may be due compensation as a result of VA's own errors in providing
medical treatment. Additionally, as discussed at length in section I.E.
below, the requirements of a complete claim are minimal and simple.
Accordingly, VA will require that even claims based on disability or
death due to VA hospital care, medical or surgical treatment,
examination, training and rehabilitation services or compensated work
therapy program be initiated by completing and filing a standard form.
Moreover, the effective date of any award granted for this benefit is
governed by current Sec. 3.400(i) which provides that an effective
date for an award granted would be ``date injury or aggravation was
suffered if claim is received within 1 year after that date; otherwise,
date of receipt of claim.'' Therefore, this final rule will not have
any detrimental effect on the effective date of any payment that may be
awarded for this type of claim.
However, VA makes minor revisions to Sec. 3.154 as proposed, in
order to ensure consistency with the intent to file process, discussed
more fully in section I. C. Specifically, we have removed any reference
to ``paper or electronic'' forms and instead made clear that claimants
must file a complete claim on the appropriate ``application form
prescribed by the Secretary'' to apply for section 1151 benefits. We
have
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also added a reference to Sec. 3.155(b), which establishes the
``intent to file'' process in order to make clear that the liberalizing
features of this process are available for section 1151 benefits. This
process essentially provides that a claim will be deemed received on
the date a claimant submitted an intent to file a claim, provided the
application form is received within 1 year from the date the intent to
file is submitted. Therefore, claimants will have up to 1 year from the
date injury or aggravation was suffered due to hospitalization,
treatment, or examination, pursuant to operation of Sec. 3.400(i), to
submit their intent to file, and up to 1 additional year to perfect the
intent to file with an application form prescribed by the Secretary by
operation of Sec. 3.155(b).
C. Standardizing the Informal Claim Process With Intent To File a Claim
Form
VA's procedures for informal claims, currently governed by Sec.
3.155, provide that an informal claim is any communication or action,
i.e., in a non-standard format, indicating a claimant's intent to apply
for benefits from a claimant, an authorized representative, a Member of
Congress, or a person acting as next friend of a claimant who is not of
full capacity or age, which identifies the benefit sought. If an
application has not been previously filed, VA would forward one to the
claimant and if filed within 1 year of submission of the informal
claim, the application would be considered filed as of the date of
receipt of the informal claim. 38 CFR 3.155(a). Generally, when a
compensation claim is granted, VA pays a monthly benefit according to
the severity of the veteran's disability beginning from the claim's
effective date, which is usually the date the claim was filed. 38
U.S.C. 5110. Therefore, Sec. 3.155 allowed claimants to secure a
potential earlier effective date for an award by submitting an informal
claim that was subsequently ratified by a formal application or for
which an application was already of record.
Although current Sec. 3.155 provided claimants with a favorable
effective date in the filing of informal claims, it allowed informal
claims to be submitted in a non-standard format that not only could be
difficult to distinguish from other routine correspondence but could
also be incomplete for adjudication. In particular, as we explained in
the proposed rule, Sec. 3.155(c) allowed informal requests for
increase or reopening to constitute claims without any need for formal
ratification or filing on a standard form of any kind. See 78 FR at
65491-92. While the informal claims process was meant to make the
process of initiating a claim as informal as possible, it also
unintentionally incentivized the submission of claims in non-standard
formats that frustrate timely, accurate, and orderly claims processing.
Therefore, VA proposed to eliminate the concept of an ``informal''
claim in Sec. 3.155 by replacing ``informal claim'' with
``incomplete'' and ``complete'' claims, and by differentiating between
non-electronic and electronic claims in order to incentivize the
submission of claims in a format, whether filed in paper or
electronically, that would be more amenable to efficient processing. VA
proposed that claims filed through an online claims submission tool
within a VA Web-based electronic claims application system would be
considered filed as of the date of the ``incomplete claim''--i.e., the
date the claim was electronically saved in VA's electronic claims
application system but not electronically submitted to VA--if the claim
is ultimately completed and submitted within 1 year. As stated in the
proposed rule, filing a claim through this electronic process would
allow claimants to preserve an effective date while affording the
claimant the opportunity to gather the necessary evidence to
substantiate the claim. In other words, VA maintained the favorable
effective date treatment of the informal claim process for incomplete
electronic claims whereas incomplete non-electronic claims did not
receive such treatment. VA proposed that non-electronic claims be
considered filed as of the date VA received a complete claim.
The purpose of the distinction between electronic and non-
electronic claim submission with regard to effective date treatment was
to incentivize claimants to file electronic claims, which are processed
by VA more efficiently and result in more expeditious delivery of
benefits to claimants. VA believed that the advantages of its Web-based
paperless claims systems offered claimants and/or their authorized
representatives, as well as VA personnel, a faster, more convenient way
of processing and adjudicating claims. VA's Web-based paperless claims
systems, such as eBenefits and the Stakeholder Enterprise Portal, guide
claimants and/or their authorized representatives in an interview-style
process where responses are auto-populated into a VA form and can be
submitted electronically with a press of a button. VA will receive the
electronic claim within 1 hour as opposed to the receipt of paper
claims which can take several days. Claimants and/or their authorized
representatives are also able to upload evidence electronically for
consideration with their electronic claim. This electronic process
ensures more accurate responses from the claimant or representative as
well as a more consistently completed form. The nature and format of
the interview in eBenefits prompts claimants to answer all pertinent
questions in order to obtain information necessary to substantiate the
claim, checks for errors and missing information, and readdresses any
unanswered questions, all of which ensure more accurate claims
processing and adjudication. However, claimants who file on paper do
not have these types of checks to ensure accuracy or sufficiency of
responses provided on a form. Thus, there is an increased likelihood
that these applications or forms on paper may be incomplete, incorrect,
or insufficient for processing. Moreover, the advantages of VA's Web-
based paperless claims system offer VA personnel a way to process and
adjudicate electronic claims more efficiently and more accurately
through the Veterans Benefits Management System (VBMS), an internal VA
business application that facilitates the evidence-gathering phase of
the claims process and employs evaluation and rules-based decision-
support tools to increase the speed and accuracy of rating decisions.
For electronic claims files in VBMS, robust optical character
recognition capabilities make it possible to search thousands of pages
of evidence in a fraction of the time required to search paper files.
Paper submissions must be manually scanned into VBMS, adding an extra
time-intensive step for paper submissions. A piece of mail must be
identified, sorted, sent to a scanning facility, and meta-data must be
entered. This delay does not exist for submissions that are initially
received in an electronic format.
VA received many comments regarding the elimination of the informal
claim under current Sec. 3.155. The majority of the commenters
expressed concern that eliminating the current informal claim process
would be burdensome to claimants since the favorable effective date
treatment of the current informal claim process would not exist for
claimants who file paper claims. One commenter stated that
``eliminating informal claims with a process of incentivizing
submissions of claims in a format more amenable to efficient processing
makes the claims process more formalized to the detriment of
claimants.'' Commenters further stated that the informal claim
[[Page 57664]]
was a way for veterans to establish a date of claim while they are
being assisted in filing the proper forms and in gathering evidence in
support of their claims by veterans service organizations and other
authorized representatives. Another commenter expressed that the
informal claim process provided claimants of different educational
backgrounds a way of filing for benefits because VA's current claims
process is difficult to understand. The major concern regarding the
elimination of informal claims was the loss of potential benefits due
to a claimant's inability to preserve an earlier effective date for an
award granted.
Numerous commenters advanced the position that the current informal
claim process, with its attendant effective date rules, is required by
statute, specifically by 38 U.S.C. 5102(c). That subsection reads in
pertinent part: ``Time limitation . . . If information that a claimant
and the claimant's representative, if any, are notified under
subsection (b) is necessary to complete an application is not received
by the Secretary within one year from the date such notice is sent, no
benefit may be paid or furnished by reason of the claimant's
application.'' Subsection (b), in turn, requires the Secretary to
notify claimants of the information necessary to complete an incomplete
application for benefits.
VA does not agree with these comments to the extent they view the
informal claim process as unambiguously required by statute. VA does
not interpret 38 U.S.C. 5102(c) to require the informal claims process,
or to require effective date consequences of any kind for incomplete
applications. There are several reasons for this conclusion.
First and foremost, the informal claims process and the effective
date rules that it entails did not originate in 38 U.S.C. 5102(c).
Rather, the current informal claim process is a longstanding feature of
VA's regulations, grounded in VA's authority to administer the veterans
benefits claim system in a pro-claimant way. The concept behind
informal claims originated in the internal memoranda of one of VA's
predecessor entities, the Bureau of War Risk Insurance, in the course
of implementing the War Risk Insurance Act, Public Law 63-193, 38 Stat.
712 (1914), as amended by Act of June 12, 1917, ch. 26, Sec. 5, 40
Stat. 102, 103-104. The Office of General Counsel of the Bureau of War
Risk Insurance held that a veteran who was so disabled as to be
precluded from filling out a form 526 prior to his death, but expressed
an intent to file a compensation claim while being treated by the U.S.
Public Health Service, was considered to have filed a valid claim
during his lifetime. The informal claims rule in substantially its
current form was ultimately included in the publication of part 3 of
Title 38, CFR 26 FR 1561, 1570 (Feb. 24, 1961). By contrast, 38 U.S.C.
5102(c) was added in 2003. Veterans Benefits Act of 2003, Sec. 701(a),
Public Law 108-183, 117 Stat. 2651, 2670 (Dec. 16, 2003).
The plain language of section 5102(c), similarly suggests that
section 5102 does not require the informal claim process, or for
incomplete applications to hold a claimant's effective date. The
statutory language creates a ``limitation'' on what benefits ``may'' be
paid by reason of an incomplete application in the event it is not
perfected within one year. By specifying that ``no benefit may be
paid'' for incomplete applications that are not properly completed and
formalized within one year, the statute allows VA to maintain a rule
treating the incomplete application as a basis for an effective date in
the event benefits are ultimately granted, but does not require VA to
do so. The statute affirmatively prevents any effective date
consequences for an incomplete application not formalized within one
year.
The statutory structure strongly favors the same conclusion.
Section 5102 appears in Chapter 51 of Title 38, United States Code. The
Chapter is entitled ``Claims, Effective Dates, Payments.'' Section 5102
appears in Subchapter I, dealing with ``Claims.'' ``Effective Dates''
are the subject of an entirely separate Subchapter II. 38 U.S.C. 5110.
Further, Congress explicitly created numerous statutory bases for
effective date retroactivity, using the construction ``the effective
date of an award . . . shall be'' each time. 38 U.S.C. 5110(b)(1)-(4),
(c), (d). No such language appears in section 5102(c). Consistent with
this reasoning, the legislative history of section 5102(c) does not
suggest that Congress understood itself to be providing a rule of
effective date retroactivity when it added this subsection to the
United States Code.
Finally, we note section 5102(c) applies only to responses to
notifications from the Secretary, required by section 5102(b), that a
claimant has submitted an incomplete application. Therefore, even to
the extent section 5102(c) is construed to require that a claimant's
submissions establish an effective date, it applies only to incomplete
applications under section 5102(b), not to all informal claimant
submissions.
Because the informal claims rule is a liberalizing feature of VA's
regulations and is not clearly required by statute, it may be adjusted
by regulation in order to meet contemporaneous needs in administering
the claims workload. This is a reasonable exercise of the authority
granted to VA by statute. VA will continue to pursue and implement
technological solutions as a major part of its drive to eliminate the
backlog of claims. VA will strive for a claims process that is
paperless to the extent feasible both as relates to VA's own work, and
claimant inputs.
Nevertheless, VA recognizes that a transition of such magnitude
takes time. Numerous commenters objected strenuously to two features of
the proposed rule: that non-standard submissions would no longer
preserve a claimant's effective date for paper original claims, and
that electronic claims would be treated more favorably, continuing to
receive the effect of this liberalizing feature of VA's regulations. VA
has carefully considered the input it has received from commenters and
determined that changes to the rule as originally proposed are
appropriate. Modernization and standardization must accommodate the
interests and preferences of the veterans and other stakeholders for
whose benefit we seek to modernize the process, and the comments make
clear that many veterans and stakeholders continue to prefer more
informal processes than VA originally proposed. Accordingly, necessity
may dictate more continued reliance on non-electronic submissions than
was originally proposed.
Therefore, in order to strike a balance between standardizing,
modernizing, and streamlining the claims process and providing
veterans, claimants, and their survivors with a process that remains
veteran-friendly and informal, VA has revised proposed Sec. 3.155 to
replace the concept of an ``informal'' claim with the concept of an
``intent to file a claim for benefits.'' The ``intent to file'' process
will share similarities with the current informal claim process.
However, one major difference is that it requires the submission
holding a claimant's effective date to be in a standard format in order
for claimants to preserve the date of a claim for a complete claim that
is filed within 1 year of receipt of such intent to file a claim. To
implement this provision, VA introduces a new form to be used in
conjunction with revised Sec. 3.155, VA Form 21-0966, Intent to File a
Claim for Compensation and/or Pension Benefits, (hereinafter ``VAF 21-
0966'') which is described in more detail in the Paperwork Reduction
Act section of this rulemaking. The intent to
[[Page 57665]]
file a claim process is a standardized method of filing an informal
claim which would be submitted in a format more amenable to efficient
processing, while still allowing veterans to receive favorable
effective date treatment similar to that available under the current
``informal claim'' rule. It also achieves the standardization of the
claims process by requiring that all claims or initiation of claims be
filed on a VA-prescribed form.
VA considers the process put in place by this rule a logical
outgrowth of the original proposal, particularly in light of the
comments received. The original proposal would have required all claims
to originate on standard forms regardless of format or posture in which
the claim arose, but with effective date placeholder treatment similar
to the current informal claims rule available in order to incentivize
electronic submissions. VA considers this change responsive to comments
urging VA to maintain a way for all veterans to secure an effective
date placeholder while the formal application form is completed, and
responsive to comments urging that paper and electronic claims receive
identical treatment for effective date purposes. Additionally, one
commenter explicitly suggested that VA adopt a ``standardized Informal
Claim form.'' Another commenter suggested ``maintaining informal claims
in the context of standardized forms.''
While VA requires submission of the intent to file a claim in a
designated form, the substantive information required to preserve an
effective date through the intent to file a claim process is less than
the requirements for claimants to preserve an effective date for a
claim through the informal claim process under current Sec. 3.155.
Currently, an informal claim is defined as any communication or action,
indicating an intent to apply for one or more benefits from certain
persons that must identify the benefit sought. See 38 CFR 3.155(a).
In this final rule, VA revises Sec. 3.155(b) to provide that a
claimant, his or her duly authorized representative, a Member of
Congress, or some person acting as next friend of claimant who is not
of full age or capacity, may indicate a claimant's desire to file a
claim for benefits by submitting an intent to file a claim to VA. The
intent to file a claim must be submitted on a VA-prescribed form or
other specified format designated for the purpose of indicating the
claimant's intent to file a claim. An intent to file a claim must
provide sufficient identifiable or biographical information to identify
the claimant. This requirement is necessary because if VA cannot
identify the claimant to whom an intent to file pertains, the intent to
file cannot serve its intended function as an effective date
placeholder for that claimant. VA has chosen the flexible, functional
standard of a claimant being identifiable based on the information
provided, rather than enumerating specific pieces of necessary
information in order to establish an intent to file. This is because
different claimants will have different pieces of identifying
information close at hand, and VA wants the placeholder to be easy for
claimants to establish. The prescribed paper intent to file form
accordingly solicits several pieces of information to identify the
claimant, such as name, Social Security Number, address, telephone
number(s), email address(es), and VA file number, if applicable.
Claimants and authorized representatives will no longer be required to
identify the specific benefit sought in order to preserve a potential
earlier effective date as required by current Sec. 3.155, but the
designated form or other specified format must be used.
An intent to file a claim therefore differs in two crucial respects
from the current informal claim process. It must be submitted in a
designated format rather than in a non-standard communication, and the
claimant must be identifiable, but it requires less substantive
specificity than would be required to establish an informal claim under
current regulations. In particular, an intent to file a claim need not
identify the particular medical issues, symptoms, or conditions on
which the claim will ultimately be based in order to establish an
effective date. The current regulation requires the claimant to
``identify the benefit sought.'' 38 CFR 3.155(a). Case law is clear
that this means the claimant must describe the nature of the disability
for which he is seeking benefits, such as by describing a body part or
symptom of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-
87 (2009). An intent to file a claim need not contain this level of
specificity.
This substantive liberalization of the information necessary to
establish an effective date will align claimant incentives with the
interests of efficient and accurate claims processing. Under the
current process, veterans filing an initial claim are incentivized to
file multiple informal claims in piecemeal fashion as soon as they
become aware of potential entitlement to benefits for each condition.
This leads to confusion and potentially duplicative administrative
action by VA. Under the intent to file a claim process, claimants will
have up to a year to gather evidence, potentially facilitating the
process of establishing entitlement for any additional conditions
without fear that they will lose benefits by not claiming each
individual condition with specificity as quickly as possible, before
presenting a comprehensive package to VA for processing.
We accomplish this substantive liberalization of the information
necessary to establish an effective date by providing in Sec.
3.155(b)(2) that an intent to file a claim ``need not identify the
specific benefit claimed or any medical condition(s) on which the claim
is based.'' In the rest of Sec. 3.155(b)(2), however, we make clear
that if a claimant provides extraneous information beyond what is
needed to establish an intent to file a claim, such as information that
VAF 21-0966 does not solicit, this extraneous information does not
alter the status of the intent to file a claim, and in particular does
not convert it into a complete claim or a substantially complete
application. For example, if a claimant provides, in white space on a
paper VAF 21-0966, information suggesting the particular disability on
which the claim will be based, this extraneous information is of no
force and effect other than that it is added to the file as evidence
for adjudicative purposes. Such extraneous statements or information
may be used as evidence in support of a claim that is filed to perfect
VAF 21-0966. If a veteran or claimant submits information such as a
description of symptoms or complaints of a medical condition on VAF 21-
0966 and identifies the same description of symptoms or complaints of a
medical condition in a complete claim filed within 1 year, VA may
consider such information as evidence to substantiate the claim.
Similarly, we also make clear at the end of Sec. 3.155(b)(2) that
extraneous information provided in an oral communication meant to
establish an intent to file under Sec. 3.155(b)(1)(iii) is of no
effect and generally will not be recorded in the record of the
claimant's intent to file. This limitation is necessary to ensure that
the intent to file process does not degenerate into case-by-case
determinations as to whether a claimant has unintentionally provided
sufficient information to elevate an intent to file to a complete
claim, which would displace the statutory requirement to ultimately
file an application form prescribed by the Secretary. Because the
purpose of an intent to file is to establish a placeholder for any and
all issues ultimately raised in the complete claim, this limitation
does not limit the
[[Page 57666]]
substantive scope of the claimant's intent to file, and only operates
to prevent an intent to file a claim from constituting a substantially
complete application.
In response to comments received, this final rule provides that
there are three ways to submit an intent to file a claim for benefits,
which we enumerate in this final rule at Sec. 3.155(b)(1). First, in
Sec. 3.155(b)(1)(i), we provide that a claimant or authorized
representative may submit an intent to file a claim electronically by
saving an application in a claims-submission tool within a VA Web-based
electronic claims application system prior to submitting the electronic
claim for processing. Currently, the claim submission tool within VA's
Web-based electronic claims application system prompts the claimant
and/or authorized representative to enter biographical or identifiable
information upon entering the electronic claims application process and
records the date a claimant or authorized representative saves the
online application prior to submission for processing. The electronic
claims application system also notifies the claimant and/or authorized
representative that the date the electronic application was saved will
serve as an effective date for an award granted if a complete
application is submitted within 1 year; otherwise, the date VA
electronically receives the complete electronic claim will serve as the
date of claim. The claimant and/or authorized representative must
acknowledge this notice by checking a box.
VA considers the following actions in VA's current electronic
claims process together to constitute an electronic intent to file a
claim: (1) The act of a claimant or authorized representative entering
into and commencing the online application process indicates an intent
to apply for benefits, i.e., disability compensation benefits; (2)
entering in biographical or identifiable information in electronic
application for benefits in the claims submission tool within a VA Web-
based electronic claims application system; (3) without providing the
specific benefit sought or the symptoms or medical condition(s) for
which the benefit is sought. Therefore, an electronic version of VAF
21-0966 for the purpose of submitting an electronic intent to file a
claim for benefits is not necessary as the claims submission tool
within VA's Web-based electronic claims application system achieves the
intent to file a claim requirements through the act of entering and
saving an electronic application in the claims submission tool within
VA's Web-based electronic claims application system.
As we explained in the proposed rule, the limitation that the
communication must take place within an online benefits account is
necessary to prevent open-ended narrative format submissions, such as
unsolicited emails, from constituting an intent to file a claim. The
further limitation that the intent to file must be submitted through a
claims submission tool within VA's Web-based electronic application
system is to ensure that non-standard communications, such as emails
within the current eBenefits system, do not constitute an intent to
file a claim merely because they took place within eBenefits. VA must
be careful to define an intent to file a claim in a way that channels
claimant submissions through a predictable, standardized process.
Second, Sec. 3.155(b)(1)(ii) provides that claimants and/or
authorized representatives may submit an intent to file a claim using
the new proposed form, VAF 21-0966. Specifically, the submission to an
agency of original jurisdiction, such as a VA regional office, of a
signed and dated intent to file, on the form prescribed by the
Secretary for that purpose, will be accepted as an intent to file. This
form has three components: (1) a checkbox for a claimant to indicate
his or her intent to file for compensation, pension, survivors'
benefits, and/or other benefits governed by 38 CFR part 3 (this
information is used to furnish the appropriate application form(s) to
the claimant); (2) claimant identification such as name, Social
Security Number, date of birth, gender, VA file number, if applicable,
mailing and/or forwarding address, telephone number(s), and email
address(es); and (3) signature and date block for claimant's
declaration of intent to apply for one or more benefits and
acknowledgement that a complete application for each type of benefit
selected must be received by VA within 1 year of receipt of VAF 21-0966
to be considered filed as of the date of receipt of such form. VA
intends to make this form available online as well as in the paper
format to claimants who request one.
Third, Sec. 3.155(b)(1)(iii) provides that a claimant or
authorized representative may submit an oral intent to file a claim by
contacting certain designated VA personnel, typically in one of VA's
call centers. However, claimants may express an intent to apply for
benefits to VA personnel either in person or by telephone. The oral
intent to file will be captured on a paper VAF 21-0966 generated from
transaction in person or over the phone call which will then be
uploaded into claimant's electronic file. In order for VA to take
action based on oral statements, the VA employee must adhere to the
requirements under 38 CFR 3.217(b) which provides that the VA employee
must: identify himself or herself as a VA employee who is authorized to
receive the information or statement; verify the identity of the
provider as either the beneficiary or his or her fiduciary by obtaining
specific information about the beneficiary that can be verified from
the beneficiary's VA records, such as Social Security Number, date of
birth, branch of military service, dates of military service, or other
information; inform the provider that the information or statement will
be used for the purpose of calculating benefit amounts; and must
document in the beneficiary's VA record the specific information or
statement provided, the date such information or statement was
provided, the identity of the provider, and the steps taken to verify
the identity of the provider. This contact provides VA with an
opportunity to educate veterans, claimants, and their families on the
process of filing a complete claim in conjunction with the intent to
file a claim, the benefits of VA's Fully Developed Claim program,
obtaining electronic access to our Web-based electronic claims
submission tool such as eBenefits, and the benefits of receiving
assistance from accredited veterans service organizations.
In the event a dispute arises over whether an oral intent to file
was received on a particular date, the presence or absence of a record
of the intent to file in VA's records will govern, absent a specific
basis to conclude that designated VA personnel received an oral intent
to file but did not contemporaneously document the communication as
required. This is consistent with the general principle, often referred
to as the ``presumption of regularity,'' that government officials are
presumed to ``have properly discharged their official duties'' unless
there is clear evidence otherwise. Miley v. Principi, 366 F.3d 1343,
1347 (Fed. Cir. 2004); see also Butler v. Principi, 244 F.3d 1337,
1339-41 (Fed. Cir. 2001) (presumption of regularity applies to the
administration of veterans benefits). This limitation is necessary to
ensure that the possibility of establishing an effective date of
benefits payments through oral communications with VA personnel does
not become a way to claim entitlement to an earlier effective date with
no basis other than the bare assertion that a particular undocumented
conversation took place.
[[Page 57667]]
We emphasize that allowing oral communications with certain designated
personnel to constitute intents to file a claim is an extremely liberal
approach to allowing claimants and their representatives to establish
an effective date. We also note that the presumption of regularity,
like all presumptions, is rebuttable. Finally, to the extent a claimant
or representative wishes to guard against the possibility that the
designated VA personnel who receive the communication will erroneously
fail to contemporaneously document it, he or she can submit an intent
to file in one of the other two formats.
When VA receives VAF 21-0966 or an oral intent to file a claim, VA
will notify the claimant and/or the authorized representative of any
information necessary to complete the formal application form, such as
a VAF 21-526EZ and, as statutorily required pursuant to 38 U.S.C. 5102,
VA will furnish the claimant with the appropriate application form(s)
as claimant indicates on the 21-0966 or orally to VA personnel.
Non-standard narrative communications not falling within these
three enumerated scenarios will not be considered an intent to file a
claim received on the designated form, and accordingly will not
establish an effective date placeholder.
Finally, notwithstanding our conclusion that 38 U.S.C. 5102(c) does
not require that an incomplete application hold a claimant's effective
date, we have provided via regulation, in Sec. 3.155(c), that an
incomplete application form will hold the claimant's date of
application for up to 1 year.
As discussed in more detail below, revised Sec. 3.155 of the final
rule also provides that only one complete claim for a given benefit
(e.g., compensation, pension) may be associated with each intent to
file a claim for the same benefit for purposes of the effective date
placeholder mechanism. In other words, if a claimant submits a VAF 21-
0966 for compensation, and then files two or more successive complete
compensation claims within 1 year, only the issues contained in the
first complete compensation claim would relate back to the VAF 21-0966
for effective date purposes.
Similarly, we address the possibility a claimant may file both an
intent to file and an incomplete application relating to the same claim
in Sec. 3.155(d). We make clear that, in the event the application is
ultimately perfected, VA will consider it filed as of the date of
receipt of whichever was filed first, the incomplete application or the
intent to file. However, we also make clear the complete claim will not
be considered filed more than one year prior to the date of receipt of
the complete claim, absent a separate basis for additional
retroactivity. See e.g., 38 U.S.C. 5110(b)(3).
VA believes that the revisions to proposed Sec. 3.155 serve as an
optimal solution to the concerns expressed by the commenters by
providing veterans, claimants, and their families a way to preserve a
potential favorable effective date while giving them 1 year from the
date of submission to file a complete claim as currently provided in
the informal claim process as well as help VA streamline the claims
process through the standardization of inputs.
The intent to file a claim process also serves to modernize VA's
claims process by keeping non-standard submissions from constituting
claims. By requiring an intent to file a claim be submitted on a
designated standard form, VA personnel will spend less time determining
whether a claimant wishes to file a claim, when a claim has been filed,
and what type of benefit the claimant is seeking. VA believes the
intent to file a claim process ensures more efficient processing that
does not unduly erode the longstanding informal, non-adversarial, pro-
claimant nature of the VA system. See Walters v. Nat'l Ass'n of
Radiation Survivors, 473 U.S. 305, 323-24 (1985). In order to implement
the standardization of the informal claim process with the intent to
file a claim process, VA has reorganized proposed Sec. 3.155 by
eliminating the distinction between non-electronic and electronic
claims as published in the proposed rule and designated this section of
the final rule as a description of how claimants can file a claim. VA
has consolidated the types of requests for application for benefits as
published in proposed subparagraphs (c)(1) and (c)(3) of Sec. 3.155 of
the proposed rule in paragraph (a) of this final rule.
One commenter noted that the person acting as next friend of
claimant must be of full age and capacity and that the term ``full
age'' is not defined and that the term ``capacity'' is broad and
susceptible to challenge in the future. VA has mirrored the language in
current Sec. 3.155 to describe persons submitting the informal claim
and replaced the term ``sui juris'' with its definition, ``of full age
or capacity.'' See Black's Law Dictionary, 1662 (10th ed. 2014). While
use of the word-for-word legal definition ``of full age and capacity''
in this context would not imply that the claimant in question must be
both under 18 and not of full capacity, given the resulting sentence as
a whole, we have opted to use the disjunctive ``or'' in order to make
clear that claimants who are not of full capacity need not also be
under 18 in order to be within the ``next friend'' provision of this
paragraph. Accordingly, there is no substantive change in the
definition. Rather, VA is merely continuing to provide a way for
claimants who cannot engage in a legal contract due to age or
disability to be represented by someone (or next friend) who can do so
on their behalf. Therefore, VA makes no change to the proposed rule
based on this comment.
One commenter stated that email requests for benefits should
trigger the duty to provide claimants with the information necessary to
complete the application. VA agrees with this comment and has provided
in Sec. 3.155(a) of this final rule that upon receipt of any request
for an application, to include email transmissions, VA will provide the
appropriate form or application pursuant to current Sec. 3.150 and
will provide claimants with the information necessary to complete it.
We note, however, that an email requesting benefits, without more, is a
non-standard narrative submission. While such a submission clearly
triggers VA's obligation to send the correct form, it does not on its
own serve as an effective date placeholder.
Further, VA has redesignated proposed subparagraph (c)(2) of Sec.
3.155 of the proposed rule which provides that an application form
prescribed by the Secretary that does not meet the standard of a
complete claim is a request for an application for benefits. VA
believes that an incomplete application form prescribed by the
Secretary is not equivalent to a non-standard submission. Therefore, VA
has redesignated this as paragraph (c) in the final rule to distinguish
an incomplete application form from a non-standard submission request,
which is an application for benefits and governed by paragraph (a) of
the final rule. Regarding incomplete application forms, VA has added
the statement that it will notify the claimant and his or her
representative, if any, of the information necessary to complete the
application form prescribed by the Secretary and that if a complete
claim is received within one year of submission of the incomplete
application or form, VA will calculate an effective date of any award
granted as of the date the incomplete application form was received.
VA received comments noting that the proposed rule did not provide
for when VA would notify claimants and/or authorized representatives of
the
[[Page 57668]]
information necessary to complete a claim for benefits if VA receives
an application form that is not complete pursuant to the proposed Sec.
3.160(a). In response, VA has provided the 1-year timeframe as
described above in revised Sec. 3.155(c) of this final rule. In
current Sec. 3.109, VA provides a 1-year filing period for claimants
to submit evidence necessary to complete an application. VA believes
that a 1-year timeframe to cure an incomplete application provides
claimants with sufficient time and remains consistent with other
current existing adjudication regulations.
VA has also eliminated the categorization of ``non-electronic
claims'' and ``electronic claims'' in proposed paragraphs (a) and (b)
of the proposed rule and replaced these distinctions with the concept
of the ``intent to file a claim'' to standardize the current informal
claim process in paragraph (b) of Sec. 3.155 of this final rule. VA
clarifies that this process would apply to all claims governed by part
3 of title 38 in the Code of Federal Regulations.
One commenter requested an explanation of the effects of the
changes implemented by this final rule on authorized representatives
and inquired about the type of interaction VA envisions for authorized
representatives if electronic mail communication through eBenefits is
delivered directly to the claimant. In the proposed rule, filing an
electronic claim was the only way to secure an effective date
placeholder. As we explain above, the structure of this final rule no
longer attaches unique effective date consequences to a claim being
submitted in electronic versus non-electronic format. In Sec.
3.155(b)(5), we make clear that the only requirement specifically
directed toward representatives is that a power of attorney must have
been executed at the time the intent to file is written. This is
substantively identical to requirements pertaining to representatives
for the informal claim process. 38 CFR 3.155(b) (2013). To the extent
this comment asks a broader question, separate from the structure
governing what inputs may and may not constitute a claim, it is beyond
the scope of the rule as now revised. VA will take this comment and all
other stakeholder input under advisement in continuing to address the
scope of representative access to electronic communications between VA
personnel and claimants.
In new subparagraphs (b)(1) through (b)(2) of Sec. 3.155 of this
final rule, VA outlines the criteria for an intent to file a claim,
namely, that it must be in a prescribed form (whether on paper,
electronic, or oral), must identify the general benefit to be claimed,
but it need not identify the specific benefit sought or symptom(s) or
medical condition(s) on which the claim is based. In new subparagraph
(b)(3), VA provides the action it will take upon receipt of an intent
to file a claim. In addition to furnishing the appropriate application
form prescribed by the Secretary in association with the intent to file
a claim, VA will notify the claimant and claimant's representative, if
any, of the information necessary to complete the appropriate
application form prescribed by the Secretary. We note that in the
context of intents to file submitted as incomplete eBenefits
applications pursuant to Sec. 3.155(b)(1)(i), this requirement is
satisfied by automated system prompts.
In new subparagraph (b)(4) of Sec. 3.155 of the final rule, VA
provides that if an intent to file a claim is not submitted in the
appropriate form as outlined in subparagraph (b)(1) and (b)(2) or is
not ratified by a complete claim within 1 year of submission of the
intent to file a claim, VA will not take further action unless a new
claim or a new intent to file a claim is received. In new subparagraph
(b)(5), VA provides that any service organization, attorney or agent
indicating a represented claimant's intent to file a claim must have
executed a power of attorney at the time the communication was written.
This mirrors what is currently provided in the informal claim
regulation in Sec. 3.155(b).
The ``intent to file a claim'' process does not interfere with VA's
other initiatives to eliminate the backlog of claims. In particular,
the Fully Developed Claim (FDC) program allows VA to provide faster
decisions and delivery of benefits to claimants through the use of the
standard forms created specifically for FDCs that contain the notice to
claimants of the information and evidence necessary to substantiate the
claim (hereinafter ``section 5103 notice'') and claimant's
certification that all evidence has been submitted with the FDC.
Claimants receive the section 5103 notice at the time they file a claim
and not after they submit the claim to VA. While VA continues to be
responsible for obtaining relevant Federal records and provides a
medical examination when necessary to decide the claim pursuant to 38
U.S.C. 5103A, VA is able to adjudicate the claim more expeditiously
because additional time is not taken to request and obtain other
evidence that a claimant identifies but does not have in his or her
possession. We note that one commenter suggested that delays in the
claims processing system are because VA spends ``too much time and
paper on a `duty to assist' letter.'' Much of the value in standard
forms is they allow VA to discharge the very legal and procedural
obligations to which this commenter refers more efficiently, so that a
greater share of VA personnel's time may be devoted to engaging the
substance of the claim.
The intent to file a claim process complements and does not
conflict with the FDC process. The effective date placeholder provided
by the intent to file a claim process allows claimants to ``protect''
their effective date while they gather all information and evidence
they have to submit with their complete claim. If a claimant is able to
gather and submit all evidence he or she wishes to submit within this
one year period, there will often be no reason why the claimant cannot
file the claim as an FDC. This, in turn, may lead to an even more
favorable effective date if the claim is an original FDC, because
Congress has provided for up to one year of special effective date
retroactivity for ``an original claim that is fully-developed'' if
filed before August 6, 2015. 38 U.S.C. 5110(b)(2)(A). In the event the
claim is not amenable to filing as an FDC, the claimant nevertheless
will receive the benefit of the effective date placeholder established
by the intent to file a claim.
We note that, similar to the effective date treatment given to
original FDCs, it is possible for specific statutory effective date
provisions in 38 U.S.C. 5110 to apply in cases where an intent to file
a claim has also been filed. For example, section 5110(b)(1) allows the
effective date for an award of disability compensation to be the day
following the date of the veteran's discharge from service if an
application is received within a year of such date. Similarly, up to a
year of retroactivity is available for claims for increased disability
compensation. See 38 U.S.C. 5110(b)(3) (``[t]he effective date of an
award of increased compensation shall be the earliest date as of which
it is ascertainable that an increase in disability had occurred, if
application is received within one year from such date.''). This rule
does not, and indeed could not, operate to displace these special
statutory effective dates enumerated in section 5110. These statutory
effective dates are generally tied to the date of receipt of the
application. This rule provides that VA will deem the ``application''
to have been received as of the date of the intent to file a claim,
which is the mechanism by which a claimant puts VA on notice that he or
she intends to ultimately
[[Page 57669]]
submit an application for benefits. Accordingly, the special statutory
retroactive effective dates operate independently of, and in addition
to, VA's decision to provide claimants up to a year to perfect and
complete their application from the date they initially put VA on
notice that they intend to file a claim.
We further note that, to the extent the intent to file process and
these special statutory effective dates intersect, the amount of
retroactive benefits is always limited by the facts found--a claimant
can never receive disability benefits for a period in which he or she
was not, as a factual matter, disabled, or at a degree of disability
higher than supported by the contemporaneous facts. This caveat is
current, established law, unaltered by this rule. Basic entitlement to
compensation is always dependent on the existence of a current or
contemporaneous ``disability,'' and its accompanying severity as
determined by the rating for that disability. 38 U.S.C. 1110, 1114,
1131; 38 CFR part 4. Additionally, all effective dates are generally
``fixed in accordance with the facts found.'' 38 U.S.C. 5110(a). The
special retroactive effective date provisions in section 5110 generally
contain similar restrictions. In particular, the statutory provision
that increased disability compensation may be effective for up to a
year prior to the date of application is limited by ``the earliest date
as of which it is ascertainable that an increase in disability had
occurred.'' 38 U.S.C. 5110(b)(3).
The following examples illustrate this implementing principle.
If a hypothetical claimant files an intent to file a claim on April
1, 2019, and files a complete claim for increase on September 1, 2019,
and evidence of record establishes the disability worsened on January
1, 2019, the effective date will be January 1, 2019. This is the
``earliest date as of which it is ascertainable an increase in
disability occurred'' and it is within one year of the date the
application was deemed received (April 1, 2019). Section 5110(b)(3), as
applied to the claim process defined in this rule, permits an effective
date corresponding to the date the disability worsened in this factual
scenario.
Similarly, if a hypothetical claimant files an intent to file a
claim on April 1, 2019, and files a complete claim on March 1, 2020,
and evidence of record establishes that the disability worsened on
January 1, 2019, the effective date will be January 1, 2019. The
application was received within 1 year of the ``earliest date as of
which it is ascertainable an increase in disability occurred'' and was
itself perfected within 1 year.
In the event the intent to file is received more than a year
following the increase in disability, section 5110(b)(3) is
inapplicable. See Gaston v. Shinseki, 605 F.3d 979, 983-84 (Fed. Cir.
2010) (special effective dates in section 5110 apply to claims filed
within one year of the triggering event specified in statute).
Therefore, if a hypothetical claimant files an intent to file a claim
on April 1, 2029, and files a complete claim on September 1, 2029, and
evidence of record establishes that the disability worsened on January
1, 2019, the effective date will be April 1, 2029.
In new Sec. 3.155(b)(6), we provide that VA will not recognize
more than one intent to file concurrently for the same benefit (e.g.,
compensation, pension). If an intent to file has not been followed by a
complete claim, a subsequent intent to file regarding the same benefit
received within one year of the prior intent to file will have no
effect. There are two alternatives to this rule, neither of which VA
believes are sound policy. The first would be simply to allow claimants
to file an unlimited number of intents to file for the same benefit,
and relate back to the earliest filed that is within one year of the
complete claim. This rule would allow, and even encourage, multiple
unnecessary filings, with attendant wasted administrative action and
confusion. The second alternative would be to allow claimants to file
multiple intents to file, but make clear that each intent to file
``updates'' or ``cancels'' any other pending intents to file for the
same benefit. While this structure would allow a claimant to protect an
interim effective date in the event it becomes clear he or she will be
unable to complete a claim within the year provided, this structure
would also imply that the claimant has abandoned the earlier, more
favorable date. Since it should be extremely rare for claimants to be
unable to file a complete claim within the full year provided, VA is
concerned that allowing claimants to ``update'' pending intents to file
in order to accommodate this scenario could lead to many claimants
inadvertently harming their interests by canceling earlier and more
favorable dates through unnecessary filings. Accordingly, only one
intent to file may be recognized at a time for a given benefit.
D. Treatment of Complete Claims
In new paragraph (d) of Sec. 3.155 of the final rule, VA provides
that all claims, regardless of type, must be complete claims, and the
effective date for benefits is generally the date VA receives a
complete claim (subject to the intent to file process). This
requirement in the first sentence of Sec. 3.155(d) is to make clear
that complete claims are not a distinguishable entity from the other
types of claims enumerated in Sec. 3.160--in other words, the
standards of a complete claim must be met for all types of claims,
including claims to reopen and claims for increase. Furthermore, VA has
reiterated the effective date treatment of the intent to file a claim
process by stating that an intent to file a claim that meets the
requirements as provided in new paragraph (b) of Sec. 3.155 of this
final rule will serve to establish an effective date if a complete
claim is received within 1 year. This reiteration makes clear that the
intent to file process applies to all claims governed by 38 CFR part 3.
VA also makes clear that only one complete claim for a particular
benefit may be associated with each intent to file a claim for that
same benefit for purposes of this special effective date rule. In other
words, if a claimant files one intent to file a claim for compensation,
and then files two or more successive complete claims for compensation
within 1 year, only issues contained within the first complete claim
would relate back to the intent to file a claim for effective date
purposes. There is no limit on the number of issues or conditions in
each complete claim. Accordingly, it is in claimants' best interests to
claim all potential issues under a particular benefit in one
comprehensive package.
VA believes this final rule is less apt to cause confusion than the
alternative, which would allow claimants to submit several claims under
the same benefit over the course of a year while still relating back to
the earliest effective date. This would encourage fragmented
presentation of claims which further complicates and delays the
development and disposition of already pending claims by causing
duplicative VA processing actions or creating confusion regarding the
development actions that must be taken for each claim. Although
claimants may submit new claims at any time, it is far more efficient
to submit all issues under the same benefit in a single unified claim.
As discussed above, VA will recognize multiple intents to file at a
time provided each intent to file identifies a different benefit sought
(e.g., compensation, pension). VA does not intend to limit a claimant
to identifying only one benefit sought in an intent to file. For
example, an intent to file may indicate that a claimant intends to file
complete claims for both compensation and pension. However, if a
claimant submits an intent to file for only one
[[Page 57670]]
benefit (e.g., compensation), VA will not recognize another intent to
file for compensation benefits until a complete claim for compensation
has been submitted or 1 year has expired, whichever occurs first.
VA's decision to recognize multiple intents to file stems directly
from the fact that Sec. 3.155(d) of the final rule provides that only
one complete claim for a particular benefit may be associated with each
intent to file a claim for that benefit. VA seeks to encourage
claimants to utilize its electronic claims submission tools to promote
accuracy and efficiency of claims processing. Currently, however,
claimants are able to submit an electronic application only for
compensation benefits. Thus, if VA were to require a claimant to submit
only one complete claim for all benefits (e.g., compensation and
pension) at the same time, it would be impossible to utilize VA's
electronic claims submission tools to apply for compensation benefits.
Allowing claimants to submit multiple intents to file, provided that
each is for a different benefit, enables veterans to submit a claim for
compensation electronically while still preserving an effective date
for other benefits through the paper or oral intent to file process.
For example, if a veteran submits a VAF 21-0966 for pension on
January 1, 2018, saves an online application for compensation on
February 28, 2018, and VA receives a complete claim for pension on
August 1, 2018 and a complete claim for compensation on September 1,
2018, VA will treat the pension claim as having been received on
January 1, 2018, and the compensation claim as having been received on
February 28, 2018, for effective date purposes. In addition, if a
veteran submits a VAF 21-0966 for compensation and pension on March 1,
2020, and VA receives a complete claim for compensation via VA's
electronic claims submission tool on November 1, 2020, and a complete
claim for pension on paper on January 1, 2021, VA will treat both the
compensation and pension claims as having been received on March 1,
2020.
One commenter noted that in the proposed rule VA allowed only one
complete claim to be associated with an incomplete claim and inquired
whether disabilities that are service connected as secondary to a
claimed or named issue would be afforded the effective date of the
claimed or named issue being adjudicated. If a benefit is granted for
the primary claim or issue for which an intent to file a claim has been
submitted and a benefit is granted on a secondary basis to the primary
claim or issue associated with an intent to file a claim, the effective
date would be the same as for the primary claim because it was an
entitlement established by the evidence of record and within the scope
of the issue or condition enumerated in the complete claim giving rise
to the primary claim. For example, if VA awards compensation benefits
for the primary condition of diabetes and evidence of record shows
other conditions are caused by or related to the diabetes, VA would
assign an effective date for the secondary conditions as of the date VA
awarded the primary condition. The result would be different if the
claim for secondary service connection arose in the course of a later,
separate claim from the one in which the primary condition was
determined to be service connected, either because of changed facts
(such as changed status of disability), or because entitlement was not
granted in the original claim and VA's decision became final. For
example, suppose a hypothetical claimant in receipt of compensation
benefits for a lower back disability and diabetes files a claim for
increase only for the diabetes and the evidence of record shows that
claimant has a right knee disability secondary to the service-connected
lower back disability. In this case, VA would adjudicate the claim for
increase for the diabetes and solicit a claim for an increase in the
lower back disability and secondary condition of the right knee. The
result in both cases flows from the plain terms of Sec. Sec. 3.155(b)
and 3.400, and from VA's obligation to consider entitlements reasonably
within the scope of complete claims filed on a standard form (see
Section I. E. below).
E. Types of Claims
In response to comments, VA has revised proposed Sec. 3.160 to
define certain types of claims in a way that is meant to complement the
structure created in revised Sec. 3.155. In proposed Sec. 3.160, VA
defined a complete claim as ``[a] submission on a paper or electronic
form prescribed by the Secretary that is fully filled out and provides
all the requested information. This includes, but is not limited to,
meeting the following requirements: (1) . . . must be signed by the
claimant or a person legally authorized to sign for the claimant[;] (2)
. . . identify the benefit sought[;] and (3) . . . [provide] a
description of any symptom(s) or medical condition(s) on which the
benefit is based . . . [; and] (4) [for pension or survivor benefits,
provide] a statement of income . . .''.
Some commenters stated that a ``[v]eteran who submits a paper claim
and inadvertently fails to check a single box on the VA form may lose
thousands of dollars in disability benefits, particularly in the case
where VA renders the application `incomplete'.'' The proposed rule made
clear that it was not VA's intent to reject forms for minor ministerial
or formalistic deficiencies. See 78 FR at 65496. Nevertheless, we agree
that a less amorphous standard for completeness is appropriate. In
response to the concerns expressed in the public comments regarding the
term ``fully filled out'' to describe a complete claim and the proposed
language that the requirements for a complete claim would ``not [be]
limited to'' those proposed requirements listed in proposed Sec.
3.160, VA has deleted the open-ended requirement that a form be ``fully
filled out,'' and the qualifier that the requirements of a complete
claim are not limited to those specifically enumerated in the rule. To
address the concern that forms would be rejected for minor ministerial
deficiencies, such as failure to check a box, this final rule provides
a clear and consistent standard for what constitutes a complete claim.
Accordingly, VA has defined a complete claim as a submission of an
application form prescribed by the Secretary, whether paper or
electronic, that contains the following express information
requirements: (1) The name of the claimant; the relationship to the
veteran, if applicable; and sufficient service information for VA to
verify the claimed service, if applicable; (2) a complete claim must be
signed by the claimant or a person legally authorized to sign for the
claimant; (3) A complete claim must identify the benefit sought; (4) A
description of any symptom(s) or medical conditions on which the
benefit is based must be provided to the extent the form prescribed by
the Secretary so requires; and (5) for a nonservice-connected
disability or death pension and parents dependency and indemnity
compensation claims, a statement of income must be provided to the
extent the form prescribed by the Secretary so requires.
These revised requirements of a complete claim are similar to the
criteria for which VA considers an application to be ``substantially
complete'' under current 38 CFR 3.159 in order to trigger VA's duty to
assist under 38 U.S.C. 5103A. Current Sec. 3.159, the regulation
governing VA's assistance in developing claims, provides that a
``substantially complete application'' means ``an application
containing the claimant's
[[Page 57671]]
name; his or her relationship to the veteran, if applicable; sufficient
service information for VA to verify the claimed service, if
applicable; the benefit claimed and any medical condition(s) on which
it is based; the claimant's signature; and in claims for non-service
connected disability or death pension and parents' dependency and
indemnity compensation, a statement of income.'' Therefore, claimants
who submit an intent to file a claim will have 1 year from the date of
such submission to file a complete claim that is similar to the current
standards of a substantially complete application.
One commenter inquired whether the ``paper'' on which a claimant is
seeking benefits must be ``prescribed by the Secretary'' as described
in proposed Sec. 3.160(a), or if an advocate's letterhead used to file
a claim on a claimant's behalf constitutes a submission on paper for
the purpose of a complete claim. One commenter stated that requiring a
form prescribed by the Secretary for submission of claims would
interfere with an advocate's ability to provide representation to the
fullest extent possible since such a requirement would curtail the
advocate's ability to provide rationale to support a claimant's
entitlement to a particular benefit. The proposed rule made clear that
a complete claim must be submitted on a ``paper or electronic form
prescribed by the Secretary.'' In response to this comment, VA has
revised the relevant portion of the final rule in Sec. 3.160(a), to
clarify that a complete claim must be submitted in the form prescribed
by the Secretary, whether paper or electronic. In order to achieve
standardization of the claims and appeals processes, it is necessary
that submissions to initiate a claim or to file a claim be in a
standard format that is easily digitalized and processed in conjunction
with VA's transition to the technological solutions implemented such as
several Web-based paperless claims systems.
However, we make no changes in response to the concern in these
comments that requiring claims to be filed on standard forms would
somehow impair claimants' ability to submit evidence in support of
their claims, or would impair representatives' ability to represent
their clients. Similarly, some commenters expressed the view that the
proposed rule attempted to require claimants to file an FDC, which
requires claimants to certify that they have submitted all evidence
they intend to submit, in order to file a claim at all. This rule does
not alter the scope of evidence submission in the VA system. The fact
that a claim must be initiated on a standard form does not in any way
imply that a claimant cannot submit evidence in favor of that claim
while the claim is pending. We note that neither the proposed rule, nor
this final rule, alter 38 CFR 3.103(d), which governs submission of
evidence and provides that ``[a]ny evidence . . . offered by the
claimant in support of a claim . . . [is] to be included in the
records.'' The proposed rule did not contain any provision requiring
that all evidence in favor of a claim accompany its initial submission.
We do note, however, that claimants who protect their effective date by
filing an intent to file a claim, gather all possible evidence, and
submit all evidence along with their claims will frequently be able to
participate in the FDC program. VA disagrees that mandating the use of
VA-prescribed forms interferes with an advocate's ability to provide
claimants with representation to the fullest extent possible. Mandating
the use of standard forms does not preclude advocates from filing
claims on behalf of a claimant or from submitting statements of
rationale in support of a represented claimant's entitlement to a
particular benefit.
Additionally, some commenters noted that while submitting a
complete claim may seem easy, some claimants or representatives filing
on a claimant's behalf may not have the necessary information readily
available, resulting in delays in submitting a complete claim which
would result in establishing a later date of claim. VA believes the
intent to file a claim process addresses this concern.
In paragraph (a)(4), VA further clarifies that for compensation
claims, a description of symptoms and specific medical conditions on
which the benefit is to be based must be provided to whatever extent
the form prescribed by the Secretary so requires, or else the form may
not be considered complete. Similarly, in paragraph (a)(5), VA
clarifies that a statement of income must be provided for nonservice-
connected disability or death pension and parents' dependency and
indemnity compensation claims to the extent the form prescribed by the
Secretary so requires in order for the claim to be considered complete.
VA received several comments stating that its requirement that
claimants identify the benefit sought, particularly, to specifically
identify the medical condition(s) on which the benefit is based in
order to be considered a complete claim is onerous, especially for the
elderly, homeless, and those with limited education or mental and/or
physical disabilities, because it forces the claimant to diagnose a
specific medical condition for which they are not competent to do and
subjects claimants to a strict pleading standard. The commenters
expressed concern that requiring claimants to identify a diagnosis as
part of meeting the criteria for a ``complete claim'' would undo the
process of VA reasonably raising claims through a sympathetic reading
of the evidence. The commenters stated that requiring claimants to
provide the benefit sought and, particularly, the requirement of a
description of the symptom(s) or medical condition(s) on which the
benefit is based contradicted existing caselaw. Many of the commenters
quoted case law providing that ``[a]lthough an appellant who has no
special medical expertise may testify as to the symptoms he can
observe, he generally is not competent to provide a diagnosis that
requires the application of medical expertise to the facts presented.''
See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). Furthermore,
commenters also referenced Ingram v. Nicholson, 21 Vet. App. 232, 255-
56 (2007), which holds that unsophisticated claimants cannot be
presumed to know the law and plead claims based on legal elements and
that the Secretary must look at the conditions stated and the causes
averred in a pro se pleading to determine whether they reasonably
suggest the possibility of a claim for a benefit under title 38,
regardless of whether the appellant demonstrates an understanding that
such a benefit exists or of the technical elements of such a claim.
VA understands the concerns raised in the public comments regarding
the specificity required in order for a claim to be considered
complete. However, the regulatory language of Sec. 3.160(a)(4) clearly
states that for compensation claims, VA requires ``a description of any
symptom(s) or medical condition(s) on which the benefit is based'' as
one of the criteria for a claim to be considered complete. VA is aware
that claimants are generally not competent to diagnose a medical
disability and are generally only competent to identify and explain the
symptoms observed and experienced. The regulatory requirement in Sec.
3.160(a)(4) is consistent with this caselaw because it only requests a
description of ``symptom(s) or medical condition(s) on which the
benefit is based'' which claimants are competent to describe to VA. The
regulatory language, both as proposed and as here revised, is clear
that VA is not requiring claimants to provide a medical diagnosis.
Rather, VA intends to continue its current
[[Page 57672]]
longstanding practice of accepting claimants' description of observable
symptom(s) or experiences or reference to a part of the anatomy such as
``right knee'' in order to meet the criteria of identifying the benefit
sought for a ``complete claim.'' For example, a claim for the ``right
knee'' can be sympathetically read, based on the evidence of record, to
encompass claims for arthritis, ankylosis of the knee, knee
``locking,'' etc. We note also that claimants whose conditions have
been diagnosed by a treating physician are competent to report those
diagnoses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir.
2007). However, in order to accommodate different circumstances, the
regulation is drafted broadly to require only a description of the
condition or its symptoms.
One commenter asked that we clarify how VA would proceed when a
claimant specifies a particular disability on the claim form, but the
disability is ultimately determined to be a different disability from
the one listed, such as when development of a claim for post-traumatic
stress disorder (PTSD) leads to a diagnosis of depression or another
psychiatric disorder other than PTSD. Consistent with our reasoning
above and the fact that the rule requires only that claimants identify
``symptom(s) or medical condition(s) on which the benefit is based,''
VA would continue to develop and ultimately adjudicate this claim as
appropriate without requiring the claimant to ``re-file'' a new form
specifically identifying the new diagnosis. The result would be
different if the claim were not reasonably within the scope of the same
``symptom(s) or medical condition(s)'' on which the original claim was
based.
Similarly, the requirements of Sec. 3.160 clearly do not equate to
a legal pleading or require specific medical knowledge and are not
overly technical. It is VA's intent to maintain the current practice of
accepting the claimant's account of symptoms and lay statements of
experiences in identifying a medical condition for which he or she is
seeking benefits. While VA has revised one of the requirements of a
``complete claim'' to request claimants provide identifiable
information, it has made no change to the regulatory language in the
requirement of identifying the benefit sought in compensation claims to
mean ``symptom(s) or medical condition(s)'' based on these comments.
The regulation language requires only that the claimant identify the
``symptoms or medical conditions'' on which the claim of entitlement to
compensation is based, in order to facilitate the orderly development
of the claim.
In addition, VA received several comments expressing concern that
it would no longer grant benefits based on inferred claims or claims
reasonably raised by the evidence of record due to the requirements of
a ``complete claim'' which specifies that a claimant must identify the
benefit sought, to include symptom(s) or medical condition(s) on which
the benefit is based. Many commenters stated that the proposed
regulation assumes that the veteran possesses a complete understanding
of the entire spectrum of benefits available to them which they do not.
Commenters were concerned that, in order to qualify as a complete
claim, the claimant must list particular benefits with specificity on
their application forms, or else risk having the claim denied.
We agree that it is necessary to provide a more detailed
explanation of how we will reconcile the pro-claimant practice of VA
identifying and adjudicating claims raised by the evidence of record
but not specifically raised by the claimant with the requirement that
all claims be submitted on a standard form. It has been VA's
longstanding practice to infer or identify and award certain benefits
that a claimant has not expressly requested but that are related to a
claimed condition and there is evidence of record indicating
entitlement. The practice of identifying these ``reasonably raised
claims'' is not mandated or defined by any statute or regulation. We
note, however, that the ``[s]tatement of policy'' in 38 CFR 3.103(a)
provides that, in developing and deciding the ``claim'' filed by a
claimant, ``it is the obligation of VA . . . to render a decision which
grants every benefit that can be supported in law while protecting the
interests of the Government.'' Relatedly, a number of court decisions
have noted that, in the legislative history of the Veterans Judicial
Review Act, Public Law 100-687, the House Committee on Veterans'
Affairs stated that VA should ``fully and sympathetically develop the
veteran's claim to its optimum before deciding it on the merits.'' H.R.
Rep. No. 100-963 at 13 (1988); reprinted in 1988 U.S.C.C.A.N. 5782,
5794-95; see Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir.
2001); Norris v. West, 12 Vet. App. 413, 420 (1999). Consistent with
these policies, VA employs the practice of identifying and adjudicating
reasonably raised claims as an administrative tool to provide for
consideration of issues and benefits that have not been expressly
claimed but that logically are placed at issue upon a sympathetic
reading of the claim(s) presented to VA and the record developed with
respect to such claim(s).
This rule does not alter VA's general practice of identifying and
adjudicating issues and claims that logically relate to and arise in
connection with a claim pending before VA. Although the rule requires
claimants to specify the symptoms or conditions on which their claims
are based and the benefits they seek, it generally would not preclude
VA from identifying, addressing, and adjudicating related matters that
are reasonably raised by the evidence of record which the claimant may
not have anticipated or claimed, but which logically should be
addressed in relation to the claim filed. Rather, such matters
generally may be viewed as being within the scope of the claim filed,
as sympathetically interpreted in light of the record. This rulemaking
does not alter or delete the requirement in 38 CFR 3.103(a) for VA to
``render a decision which grants every benefit that can be supported in
law while protecting the interests of the Government.'' This policy
recognizes that many ancillary benefits that many veterans are not
aware of may continue to be adjudicated and awarded as part of VA's
disposition of the issues a claimant has specifically raised.
However, entirely separate conditions never identified on a
standard claim form generally will not be the subject of claims that
are reasonably raised by the evidence of record. As an initial matter,
we do not construe 38 CFR 3.103(a) or other governing authorities to
establish a legal duty to identify and adjudicate claims that are
unrelated to the particular claims raised by the claimant. Section
3.103(a) specifies that claimants are entitled to written notice of the
decision made ``on his or her claim'' and that VA will assist in
developing ``the facts pertinent to the claim'' and will render a
decision which grants every benefit that can be supported in law while
protecting the interests of the Government. Those provisions thus
relate to matters that are reasonably within the scope of the claim
filed by the claimant. They do not, however, create a duty to
adjudicate matters unrelated to the claim filed. In this way, Sec.
3.103(a) reflects the principle of sympathetic construction of claims,
while adhering to the general statutory framework that requires a
specific claim in order to support a benefit award, 38 U.S.C. 5101(a),
and to establish the date on which entitlement to an award may be
effective, 38 U.S.C. 5110(a). Similarly, insofar as judicial decisions
have referenced a duty of sympathetic development deriving from
congressional intent expressed in H.R.
[[Page 57673]]
Rep. No. 100-963, that report similarly refers to a duty to fully and
sympathetically develop the claimant's ``claim'' to its optimum before
deciding such claim. We do not construe that statement as requiring VA
to identify and adjudicate issues and claims that are unrelated to the
claim(s) presented to VA.
Further, establishing a duty on VA's part to identify claims
reasonably raised by the evidence of record which are unrelated to the
claim(s) presented would be incompatible with the requirement in Sec.
3.160(a)(4), as prescribed in this final rule, that a complete claim
enumerate the conditions or symptoms on which the claim is to be based.
If claims that are reasonably raised by the evidence of record for
totally new conditions were permissible, it would be possible to
identify only one condition on the standard application form, but
submit evidence relating to multiple conditions on the expectation VA
will identify and adjudicate those unidentified claims. This would
inevitably lead to exactly the time-intensive clarifications and
interpretations we seek to avoid remaining necessary in a large volume
of cases.
The permissible scope of claims that are reasonably raised by the
evidence of record in light of the requirement in Sec. 3.160(a)(4)
overlaps somewhat with the scope of the implicit denial rule. The basic
idea of that rule is that claims pending but not explicitly denied in a
decision addressing other claims can be deemed ``implicitly denied'' in
certain circumstances. In Ingram v. Nicholson, 23 Vet. App. 232, 248
(2007), the Court of Appeals for Veterans Claims (hereinafter
``Veterans Court'') said the implicit denial rule cannot cover claims
that are very different from one another in content. For instance, the
denial of nonservice-connected pension claims did not put Mr. Ingram on
notice that his claims under 38 U.S.C. 1151 had been denied. Ingram, 23
Vet. App. at 243. However, the United States Court of Appeals for the
Federal Circuit (hereinafter ``Federal Circuit'') later held that a
claim for endocarditis was implicitly denied when the AOJ denied a
claim for rheumatic heart disease. Adams v. Shinseki, 568 F.3d 956, 963
(Fed. Cir. 2009).
Applying a similar scope to these claims that are reasonably raised
by the evidence of record but not specifically claimed by the claimant
will allow VA to continue this pro-claimant practice largely
undisturbed while still requiring claims to originate on standard
forms. VA's grant or denial of a pending claim necessarily implies that
VA has considered all potential theories of entitlement reasonably
inferable from the evidence of record and reasonably within the scope
of that claim. This is consistent with the requirement in Sec.
3.160(a)(4) that the completed application form enumerate ``symptom(s)
or condition(s)'' but not ``diagnoses'' or some other more discrete
requirement. For example, if a claimant lists ``heart condition'' on a
standard form, VA would consider entitlement theories based on both
endocarditis and rheumatic heart disease, to the extent justified by
the evidence of record. This means VA would continue to award benefits
reasonably raised by the evidence of record based on secondary service
connection or service connection based on aggravation due to an already
service-connected disability, entitlement to total disability based on
individual unemployability, benefits such as housing or automobile
allowance, or special monthly compensation benefits if the evidence is
clear that the claimant meets the eligibility or requirements for such
benefits and VA can adjudicate these claims. This provision has been
outlined in new paragraph (d) of Sec. 3.155. In new Sec. 3.155(d)(2),
we have provided that VA will continue to identify and adjudicate
claims reasonably raised by the evidence of record that are related to
or are reasonably within the scope of the claimed issues in the
complete claim. As explained above, Sec. 3.103(a) currently provides
the predicate for full and sympathetic development of claims, to
include consideration of matters reasonably related to and raised in
connection with a claim before VA, whether or not raised expressly by
the claimant. We have provided that VA will put at issue for
adjudication any ancillary benefit(s) or other claims not expressly
raised by the claimant that are related and arise as a result of the
adjudication of a claimed issue. Such issues, other than ancillary
benefits, which have not been claimed by the claimant but have resulted
as complications of claimed service-connected conditions will continue
to be identified and adjudicated as also indicated by part 4 of the
CFR, VA Schedule for Rating Disabilities.
We note that the existence of the discretionary, pro-claimant
practice of identifying claims reasonably raised by the evidence of
record does not imply that claims potentially remain pending
indefinitely, awaiting the suggestion that contemporaneous evidence may
have supported inferring a claim that was not actually filed. As the
implicit denial rule itself suggests, VA's grant or denial of a pending
claim necessarily implies that VA has determined that no other claims
are reasonably raised by the claims specifically identified by the
claimant and the accompanying evidence of record. The correct way to
contest this determination is on direct appeal, or in a claim for clear
and unmistakable error. See Deshotel v. Nicholson, 457 F.3d 1258, 1261-
62 (Fed. Cir. 2006). VA also notes that ``where there can be found no
intent to apply for VA benefits, a claim for entitlement to such
benefits has not been reasonably raised.'' Criswell v. Nicholson, 20
Vet.App. 501, 504 (2006). Accordingly, in the next to last sentence of
Sec. 3.155(d)(2), we clarify that VA's decision addressing some, but
not all, of the issues raised in a complete claim does not imply that
the reminder of the enumerated issues (and issues reasonably within
their scope in light of the evidence of record) have been denied, since
VA must still decide the remaining enumerated issues. However, in the
final sentence of Sec. 3.155(d)(2) we make clear that VA's decision on
a claim necessarily implies that VA has determined the evidence of
record does not support a grant of benefits for any other issue
reasonably within the scope of the issues enumerated in the complete
claim. This rule text makes clear that VA's duty to broadly construe
the evidence of record does not vitiate the finality of otherwise final
VA decisions.
We further note that identifying and adjudicating claims reasonably
raised by the evidence of record are a pro-claimant practice meant to
resolve claims without the need for unnecessary administrative action
when VA is already actively developing and adjudicating a claim. It
should not be construed as creating a rule or practice that the filing
of evidence, without a claim for increase for a condition already
service connected executed on a completed application, constitutes a
claim for increase. Such a practice would form a boundless exception to
the requirement to file a complete claim for increase made explicit in
Sec. 3.155(d), and would be inconsistent with our explicit elimination
of current Sec. 3.157.
Some commenters specifically questioned how claims for Total
Disability based on Individual Unemployability (TDIU) would operate
under a system requiring standard forms. Generally, TDIU is not a
``claim,'' but a rating that is provided in light of the impact of an
individual's disabilities. Rice v. Shinseki, 22 Vet. App. 447, 452-54
(2009). This implies that VA must consider potential
[[Page 57674]]
entitlement to TDIU when the necessary substantive thresholds are met,
and whenever evidence of record potentially establishes
unemployability, whether in the context of an original claim or a claim
for increase. As we said in the proposed rule, ``[i]t is VA's intent
that a request for an increase accompanied by evidence of
unemployability continue to constitute a claim for TDIU, but the claim
for increase itself must be filed on a standard form.'' 78 FR at 65497.
However, it also implies that the requirements to initiate an original
claim or a claim for increase, such as initiating an application with
an intent to file a claim and perfecting it with a completed
application form, apply, as they would to efforts to seek any other
rating.
Other commenters asserted that it has been VA's longstanding
practice to assist veterans at the beginning of the claims process and
that requiring claimants to provide a complete claim is comparable to
the ``well-grounded claim'' elements which Congress ordered abandoned
by the Veterans Claims Assistance Act of 2000. One commenter stated
that ``the idea of not considering a claim to have been properly filed,
and therefore not eligible for an effective date until it is `complete'
sounds remarkably similar to the universally rejected requirement of
filing a `well-grounded' claim.'' Another commenter stated that
electronic applications that fall short of the standards of a complete
claim would not constitute a claim of any kind, complete or otherwise,
and that the proposed rule was incompatible with the duty to assist as
mandated by 38 U.S.C. 5103A. Other commenters seemed to be under the
impression that, under the proposed rule, a veteran would be required
to complete all development on a claim before it would be considered
complete and accepted, and some accused VA of attempting to shift legal
burdens onto the veteran, though not all commenters characterized this
as requiring a ``well-grounded'' claim.
Historically, section 5107 of title 38, United States Code provided
that a person who submitted a claim for benefits had the burden of
submitting evidence sufficient to justify a belief by a fair and
impartial individual that the claim was well grounded. 38 U.S.C.
5107(a) (1994). This seemingly subjective determination ultimately came
to be defined with some particularity, and the elements of a ``well
grounded claim'' eventually bore resemblance to the elements of
ultimate entitlement to disability compensation. Compare Epps v. Gober,
126 F.3d 1464, 1468 (Fed. Cir. 1997) with Holton v. Shinseki, 557 F.3d
1362, 1366 (Fed. Cir. 2009). The Veterans Court even suggested that VA
was legally precluded from providing assistance to claimants who had
yet to submit evidence sufficient to establish well-groundedness. See
Grivois v. Brown, 6 Vet. App. 136, 140 (1994). Congress recognized the
illogic of requiring claimants to all but establish entitlement to
benefits in order to be eligible for receiving VA assistance in
gathering the evidence needed to establish entitlement in enacting the
Veterans Claims Assistance Act of 2000. See H.R. Rep. 106-781 at *6-*9
(July 24, 2000).
We disagree with the assertion that the proposed rule would have
resurrected the well-grounded claim requirement, or that this rule as
now revised resurrects that requirement. The proposed rule would not
have required claimants to submit evidence establishing ultimate
entitlement to benefits in order for the claim to be recognized as a
complete claim, and neither does this final rule.
The determination that a ``complete claim'' has been submitted is
based on objective standards that are explicitly outlined in Sec.
3.160(a). The criteria of a ``complete claim'' correspond directly to
the current standards for a ``substantially complete application'' in
Sec. 3.159 which governs VA's statutory duty to assist claimants in
developing claims. Therefore, once VA receives a complete claim, the
statutory duty to assist claimants in obtaining evidence to
substantiate the claim is triggered. While a form must contain the
elements of information explicitly required by Sec. 3.160(a) in order
to be considered complete, there is no requirement to submit medical or
other evidence in support of the claim in order for the application
form to be considered complete. In other words, requiring that a claim
be complete in order for VA to begin adjudicative activity is not at
all the same thing as requiring ultimate entitlement to be demonstrated
before VA will begin adjudicative activity. Therefore, VA has made no
change to the proposed rule based on this comment.
Similarly, another commenter asserted that claimants should not be
responsible for developing their claims and that VA has a duty to
assist veterans. The requirement that claimants submit a complete claim
does not entail shifting the burden on the claimant to develop his or
her claim. The submission of a complete claim as set forth in Sec.
3.160(a) of this final rule allows for efficient, fair, and orderly
processing and adjudication of a claim because the information
necessary to develop and adjudicate the claim has been provided. VA's
statutory duty to notify claimants of information and evidence
necessary to substantiate the claim and duty to assist claimants in
obtaining evidence necessary to substantiate the claim remain
unchanged. VA will continue to develop claims that are considered
complete.
VA eliminates the definition of ``incomplete claim'' that had
appeared at paragraph (b) as proposed, and replaces it with the
definition of an ``original claim'' as originally proposed at paragraph
(c), with the minor change of deleting ``or form'' from the phrase,
``application form or form prescribed by the Secretary''. This change
is to make clear that an application form is the form prescribed by the
Secretary rather than some distinct administrative tool. In paragraph
(c), VA adopts as final the definition of a ``pending claim'' which was
proposed at paragraph (e). This change updates the existing definition
of ``pending claim,'' which is currently defined as ``an application,
formal or informal, which has not been finally adjudicated'' by
replacing the phrase ``an application, formal or informal'' with the
word ``claim.''
In paragraph (d), VA adopts as final the definition of ``finally
adjudicated claim,'' as originally proposed at paragraph (f). This
action primarily replaces the phrase ``an application, formal or
informal'' in the current definition with the word ``claim.'' Since VA
is eliminating the term ``informal claim,'' it removes references to
the phrase or words, ``informal'' and ``formal'' for consistency in the
existing definitions. These changes are not meant to alter the law of
finality in the VA benefits system. See Cook v. Principi, 318 F.3d
1334, 1339-41 (Fed. Cir. 2002) (en banc).
Furthermore, VA has withdrawn the definitions of ``new or
supplemental claim'' in proposed paragraph (d) of the proposed rule and
the revised definition of ``claim for increase'' in proposed paragraph
(h) of the proposed rule. The definition of a claim for increase in
current Sec. 3.160(f) accordingly remains unchanged by this final
rule. While the new proposed definitions were intended to provide
clarification, the statements of commenters demonstrated a
misunderstanding and confusion about the usage and application of these
terms. Because no substantive change to the scope of what constitutes a
claim for increase was intended, and the more particular definition in
the proposed rule is not necessary to achieve consistency with the
intent to file
[[Page 57675]]
process, VA has withdrawn these proposed definitions in this final
rule. However, in revised paragraph (e) of this final rule, VA
continues the definition of ``reopened claim'' that appears in current
Sec. 3.160(e) with slight modifications to insert ``new and material
evidence'' as clarification of VA's existing criteria for reopening a
previously denied claim.
F. Elimination of Report of Examination or Hospitalization as Claim for
Increase or To Reopen
Through this final rule, VA removes current Sec. 3.157, which had
provided that reports of examination or hospitalization can constitute
informal claims to increase or reopen. In implementing one consistent
standard for the claims process, VA has eliminated informal claims for
increase or to reopen based on receipt of VA treatment, examination, or
hospitalization reports, private physician medical reports, or state,
county, municipal, or other government medical facilities to establish
a retroactive effective date as provided in current Sec. Sec. 3.155(c)
and 3.157. The idea that certain records or statements themselves
constitute constructive claims is inconsistent with the standardization
and efficiency VA intends to accomplish with this final rule.
Therefore, in place of current Sec. Sec. 3.155 (c) and 3.157, VA
adopts the amendments to Sec. 3.400(o)(2) as proposed, with two
changes necessary to respond to concerns raised by commenters and to
implement the intent to file process we have adopted in order to
respond to the broadest concerns in the comments. The first change is
to add the words ``or intent to file a claim'' after ``a complete
claim'' in both the first and second sentences of the rule as proposed.
The rule now states that a retroactive effective date may be granted,
when warranted by the facts found, based on date of treatment,
examination, or hospitalization from any medical facility, if the
claimant files a complete claim for increase or an intent to file such
a claim within 1 year of such medical care. This amendment preserves
the favorable substantive features of the current treatment of reports
of examination or hospitalization under Sec. 3.157, but requires
claimants to file a complete claim for increase, or an intent to file
that is later perfected by a complete claim, within 1 year after
medical care was received.
The other change is to insert the words ``based on all evidence of
record'' in the first sentence of the regulation, so the language
describing the relevant effective date now reads, ``[e]arliest date as
of which it is factually ascertainable based on all evidence of record
that an increase in disability had occurred''. This addition is to
respond to a comment expressing concern that Sec. 3.400(o)(2) as
proposed would ``restrict[] the evidence needed to establish an earlier
effective date to only medical evidence.'' The language in the second
sentence of Sec. 3.400(o)(2) as proposed specific to the treatment of
medical records was intended to specifically address, in regulatory
text, the situations in which medical records may establish an
effective date. This language was intended to make clear, in governing
regulation text separate from the elimination of current Sec. 3.157,
that medical records are evidence used to establish contemporaneous
state of disability once a claim has been filed, and do not themselves
constitute claims. By adding ``based on all evidence of record'' to the
first sentence, we are making clear that the date as of which it is
factually ascertainable that an increase in disability occurred may be
based on any kind of evidence to the extent that evidence is credible
and probative. Placing this clarification in the first sentence of the
regulation avoids confusing matters by discussing types of evidence
other than medical records in the second sentence, which is meant to
provide clarification in light of the elimination of Sec. 3.157.
Some commenters asserted that eliminating Sec. 3.157 would shift
the burden of filing a claim to the claimant, who may be more focused
on undergoing treatment than in considering the existence of a
potential monetary benefit. VA fully appreciates that while a veteran
is hospitalized or receiving crucial medical treatment, a veteran may
be more focused on his or her health than on pursuing a claim for
compensation. VA has no desire to preclude veterans from receiving
benefits for periods of hospitalization or medical treatment--VA only
wishes to receive inputs in a standard format in order to serve
veterans as efficiently as possible. Therefore, VA has provided a 1-
year window within which a claimant can submit an intent to file a
claim as outlined in Sec. 3.155(b) of this final rule or file a
complete claim for increase. As we discuss in section I.C of this final
rule notice, the filing of an intent to file within this one year
period provides up to a year to perfect the application by filing a
complete claim. Under this final rule, all a veteran must do to
preserve the earliest possible effective date of benefits is take the
minimal step of filing an intent to file within 1 year from the date as
of which it is ascertainable that an increase in disability has
occurred, in any of the permissible formats discussed in Sec.
3.155(b). 38 U.S.C. 5110(b)(3). Filing the intent to file placeholder
then provides the claimant up to another year to perfect the
application by filing a complete claim. VA believes this process
provides a significant amount of time for veterans undergoing medical
treatment or hospitalization to perform these minimal steps without
losing any benefits. VA strongly believes that any de minimis burden
associated with filling out a form, whether an intent to file a claim
form or a complete claim, rather than having a medical record itself
constitute a claim for increase is clearly outweighed by the
efficiencies that will be realized as claims become easier to identify
and process.
Several commenters stated that revised Sec. 3.400(o)(2), the
effective date provision for claims for increase, limits retroactive
payments to no more than 1 year and that, currently, veterans may be
eligible for many years of retroactive payments based on facts found in
the medical evidence. Other commenters stated that the rule eliminates
the present right of a veteran to use the date of treatment in a VA
medical facility for a non-service-connected disability if a claim is
submitted within 1 year and VA determines that service connection
should be granted or when a claim specifying the benefit sought is
received within 1 year from the date of such examination, treatment, or
hospital admission.
The plain language of the statute governing effective dates for an
award of increased compensation based on an increase in disability
allows an effective date based on when it is factually ascertainable
that an increase in disability had occurred, ``if application is
received within one year from such date.'' 38 U.S.C. 5110(b)(3).
Accordingly, it is clear that the effective date of a claim for
increase can never be more than one year prior to the date of
application. With this rule, VA is ending the practice that certain
records themselves constitute claims, but is not disturbing the
potential period during which a veteran may receive an award of
increased compensation, provided the factual basis for such an award
exists, and provided the veteran files a complete claim for increased
compensation or an intent to file that is ultimately perfected by a
complete claim for increased compensation within one year.
The situation identified by the commenters does not arise because
VA
[[Page 57676]]
grants effective dates more than a year in advance of when the
application is received--VA is flatly prohibited by statute from doing
so. Rather, it arises when a veteran files a claim for increase, and VA
becomes aware of a document, such as record of admission to a VA or
uniform services hospital, potentially more than one year old, that
itself constitutes a claim pursuant to current Sec. 3.157, but has not
been recognized as a claim or obtained by Veterans Benefits
Administration (VBA) adjudicators until the instant claim for increase
has been filed. In this scenario, benefits are not being paid more than
one year prior to the date of application, but are being paid pursuant
to a ``claim'' which was only recently found to have been pending. In
other words, in this scenario the veteran is being paid a
``retroactive'' award because a claim was not properly identified and
processed, and remained pending potentially for years. This is exactly
the type of situation that VA seeks to prevent by insisting that claims
must be on standard forms amenable to easy identification and
processing. This rule does not preclude a veteran from receiving
increased compensation for any period for which he is so entitled,
provided he files a claim on a standard form or an intent to file
within one year of when the increase in disability occurs. This rule
does not ``take away'' potential avenues for a veteran to receive years
of retroactive benefits, but rather prevents the situations that make
retroactive payments necessary in the first place, provided the veteran
takes the minimal step of filing a claim on a standard form. VA
strongly believes it is preferable for veterans to be in current
receipt of benefits to which they are entitled, rather than go without
those benefits due to agency error for years before receiving
retroactive payments. Additionally, we note that, to the extent a
record that itself constitutes a claim is in existence as of the date
this rule becomes effective and has not been identified and acted upon,
this rule cannot extinguish that record's status as a claim under the
law that was in effect as of the time that record was created, to the
extent it is ever identified as claim. This rule cannot and does not
preclude benefits that might be due for any unidentified and
unadjudicated claims now pending.
Likewise, Sec. 3.400(o)(2) does not alter the current procedures
and laws governing the assignment of effective date(s) for an award
granted for the first time based on treatment, hospitalization, or
examination.
G. Special Allowance Payable Under Section 156 of Public Law 97-377
Finally, VA adopts minor amendments to proposed Sec. 3.812 which
govern a special allowance under Public Law 97-377. VA replaces the
terminology ``formal'' and ``informal'' claims with ``complete claim''
and ``intent to file a claim,'' as appropriate, to ensure consistency
with the rest of the final rule.
One commenter stated that mandating the filing of a complete form
for this particular benefit prior to VA recognizing it as a claim flew
in the face of a half century or more of veteran-friendly regulations.
However, because VA has replaced the concept of informal claim with the
concept of intent to file a claim in Sec. 3.155(b) of this final rule,
claimants applying for this benefit in Sec. 3.812 can preserve an
earlier effective date by submitting an intent to file a claim that is
later ratified by a complete claim if filed within one year of receipt
of the intent to file a claim. Therefore, claimants and/or
beneficiaries would not lose out on possible benefits due to the
requirement of a complete claim being filed for this particular
benefit.
H. Other Comments Regarding Initial Claims
VA received many comments asserting that VA's mandate of the use of
forms in the VA claims process is burdensome to claimants by making it
more difficult for claimants to file a claim and by overcomplicating
the claims process, particularly for those with disability limitations
or limited access to VA forms. The commenters expressed that such
mandate of the use of forms creates an adversarial relationship between
claimants and VA. Some commenters stated that VA is acting only in its
own best interest in reducing the statistics on the claim backlog and
not in veterans' interests.
VA has responded to these concerns by adopting the intent to file
process, which is meant to reconcile the need for standard inputs with
the claimant's need to preserve an effective date while complying with
the procedural requirement of filling out an application form. VA is
sensitive to the concern that, in some cases, the very disability for
which a veteran is seeking compensation may make it difficult to fill
out a form. This final rule strikes an appropriate balance between
providing claimants with a more efficient process that does not erode
the longstanding informal, non-adversarial, pro-claimant nature of the
VA system with the ongoing workload challenges relative to VA's
operating resources. VA considers increasing the role of standard forms
a key component to streamlining, standardizing and modernizing the
claims process. The current informal claim process allows non-standard
submissions to constitute claims, which involves increased time spent
determining whether a claim has been filed, identifying the benefit
claimed, sending letters to the claimant and awaiting a response, and
requesting and awaiting receipt of evidence. These steps all
significantly delay the adjudication and delivery of benefits to
veterans and their families. Requiring the use of standard forms
imposes minimal, if any, burden on claimants. Further, by making it
possible for all claimants to preserve an effective date by utilizing
the ``intent to file'' process, VA believes the benefits of these
changes outweigh any such burden. Even those claimants who, due to
their disabilities, may have trouble filling out an application form,
can utilize one of the three acceptable formats for an intent to file,
including oral communications with certain designated VA personnel, and
take up to a year to perfect the application form without losing
benefits.
Moreover, current standard forms such as VA Forms 21-526EZ, 21-
527EZ, and 21-534EZ (hereinafter ``EZ forms'') contain the statutorily
required notice to claimants of the information and evidence necessary
to substantiate a claim at the onset of filing a claim. See 38 U.S.C.
5103. This means claimants do not have to wait for VA to send notices
to claimants of VA's duty to assist in developing a claim. Claimants
will be informed of what information and evidence is necessary in
substantiating their claims prior to or at the time they file a claim.
In addition, the EZ forms used for filing disability compensation,
pension, and survivor benefits as well as the NOD form are shorter in
length, making them less burdensome and time-consuming for claimants to
complete. Additionally, EZ forms contain pre-printed lists of
potentially available benefits to help guide claimants through the
claim process. VA believes that the standard format of VA's forms that
provide pre-printed selections from which claimants can choose poses
less of a burden on claimants because claimants spend less time
describing their intent to file a claim, identifying and describing
symptoms or medical conditions, or expressions of disagreement to a VA
decision in a narrative format of non-standard submissions.
Some commenters asserted that there would be a constituency of
claimants
[[Page 57677]]
who would not have access to VA's standard forms. The forms necessary
to file claims for benefits are widely available, both online and in VA
regional offices. Additionally, VA will continue to provide claimants
with the correct forms upon request. 38 U.S.C. 5102. Furthermore, with
the regulatory changes to Sec. 3.155 standardizing the informal claim
process through the concept of an intent to file a claim, claimants or
their authorized representatives can contact designated VA personnel
directly to establish an intent to file a claim and preserve a
potential earlier effective date of their claim, and VA will furnish
claimants with the appropriate claim application form(s) necessary for
claimants to submit a complete claim. Many veterans service
organizations also have access to VA forms.
One commenter objected to our discussion in the proposed rule
pointing out that electronic claims could more easily be separated by
issue and routed around the country for consideration by specialists,
often referred to as the ``centers of excellence'' concept. The
proposed rule would not have implemented or mandated the ``centers of
excellence'' concept. It would have incentivized electronic claim
submission, which removes many of the manual steps necessary to convert
claims to electronic format. VA will only move toward electronic issue-
by-issue brokering of workload when it is confident that this step adds
both accuracy and efficiency to the claims process.
One commenter stated that the proposed rule would have created
multiple definitions of ``receipt'' which 38 U.S.C. 5110, the statute
governing effective dates of awards, does not authorize, and that
particularly for electronic claims VA would not receive the identical
form sent to VA via mail or other means and that the effective date of
an electronic claim is outside the meaning of the statute. This final
rule no longer attaches effective date distinctions to whether a claim
is received in paper or electronic format. VA notes that statutes
neither expressly permit nor prohibit VA's current longstanding
practice of assigning an effective date based on receipt of an informal
claim to establish an effective date when such informal claim is later
ratified by a completed application form within 1 year. Through this
final rule, VA is simply modifying the traditional informal claims
process to make it more amenable to timely and efficient processing,
while maintaining essentially the same longstanding liberalizing
effective date rule that the informal claim process has entailed. To
the extent this comment is read as raising the broader point that
recurring terms in section 5110 such as ``date of receipt of
application'' and ``date . . . application is received'' must be
interpreted and implemented in a consistent way, VA has done so in this
final rule. See e.g., 38 U.S.C. 5110(a), (b)(2), (b)(3). As we explain
in section I.C, a claimant must file an application form. However, for
effective date purposes, VA will deem that application form to have
been received as of the date VA was put on notice, through the
submission of an intent to file, that a claimant intended to file a
claim. Any specific statutory effective dates that are available (if
justified by facts found) prior to the date that the application is
deemed filed will operate independently.
Some commenters raised practical complaints with the eBenefits
system. Some asserted that eBenefits is confusing to claimants, while
others focused on technical barriers to eBenefits access. Similarly,
some commenters pointed to past information security breaches, and the
fact that the technology necessary to file an electronic claim may be
expensive, as reasons why allowing an effective date placeholder solely
for incomplete electronic claims would be a potential burden to
claimants. Because this final rule no longer attaches potential
effective date consequences to whether a claim is initiated
electronically prior to its ultimate filing as a complete claim, we
consider these comments addressed insofar as the structure of VA's
claims rules is concerned. We will continue the operational work of
improving online claim submission tools and conducting outreach to
veterans on how to submit claims.
Some commenters pointed out that some veterans are illiterate, or
are blind, or have brain injury, mental health problems, or other
cognitive impairments, and might therefore have difficulty using
technology or filling out VA forms. In this final rule, we have
provided that claimants may establish an effective date placeholder via
oral contact with designated VA personnel. We also note that 38 U.S.C.
5101(a)(2), as amended by Section 502 of Public Law 112-154, allows
certain authorized signers to sign a form required by section
5101(a)(1) on behalf of an individual who ``has not attained the age of
18 years, is mentally incompetent, or is physically unable to sign a
form''.
One commenter argued there is insufficient space on VA claims forms
to identify disabilities with sufficient particularity, which will
cause problems for veterans as well as processing problems at VA. The
current form 21-526 contains space for seven conditions, as well as
additional open space in which the veteran can indicate additional
conditions if necessary. The form 21-526EZ already contains space to
specifically list thirty conditions. More fundamentally, forms are
capable of being revised based on experience and operational needs,
provided VA complies with the necessary procedural requirements in
doing so. An objection to the design of one particular form does not,
therefore, imply that VA rules cannot or should not require claims to
originate on standard forms. Finally, as we explain in section I.C, the
commenter is mistaken as to the level of particularity required. The
proposed rule would not have, and this final rule does not, require the
veteran to identify a specific medical diagnosis in order to complete a
claim. As Sec. 3.160(a)(4) makes clear, all that is required is a
``description of any symptom(s) or medical condition(s),'' and this
requirement can be satisfied by simply claiming ``right knee'' or
``shoulder,'' which will require VA to consider all possible right knee
or shoulder disabilities established by the evidence of record.
Some commenters also suggested that VA's desire to increase the
importance of standard forms in the claims process implies that VA
cares more about the speed with which decisions are reached than the
quality of those decisions. VA disagrees with these comments. Standard
forms increase clarity and accuracy as well as efficiency, leading to
lower error rates and higher quality in benefits processing.
Additionally, VA strongly believes that unacceptable delays in the
processing of veterans benefits claims, colloquially known as the
``backlog,'' also hurt veterans because benefits cannot be paid until a
claim is decided. Many features of VA's current claims process also
contribute to the backlog or, at a minimum, hamper VA's ability to
address the backlog. Most inputs into the claims process, such as
claimant submissions, are still received in paper format. Further, many
submissions, including submissions requiring VA to take action, are not
received in a standard format. This increases time spent determining
whether a claim or a notice of disagreement to a decision has been
filed, identifying the benefit or contention claimed or appealed,
sending letters to the claimant and awaiting for a response, and
requesting and awaiting receipt of evidence. These
[[Page 57678]]
steps all significantly delay the adjudication and delivery of
benefits. By requiring the use of standardized forms for all claims and
appeals, VA is able to more easily identify issues and contentions
associated with claims or the initiation of an appeal that are filed,
resulting in greater accuracy, efficiency, and speed in processing and
adjudicating claims and appeals.
Some commenters suggested that VA should have standard forms,
including for informal claims, but that use of those forms should be
optional. VA has made no changes based on these comments. Making
standard forms optional will not achieve the necessary standardization
of the process because VA personnel would still be required to engage
in time-intensive interpretive review of narrative submissions in order
to determine whether a claim or appeal has been filed.
One commenter suggested that if the rule as proposed were confirmed
as final, staff attorneys should be made available to all veterans who
request one, free of charge, to navigate the ``adversarial'' process
that would result. We disagree that requiring forms be filed at certain
critical phases of the claims and appeals process amounts to an
``adversarial'' approach, particularly in light of the express
authority conferred by Congress. Additionally, in this final rule, we
have provided multiple avenues for a claimant to protect an effective
date while taking up to a year to fill out the required form.
One commenter requested that VA ``clearly state and abide by [a]
suspense/deadline for each claim processed.'' That is exactly what VA
is trying to do. The Secretary has clearly stated that VA's operational
goal is to process all claims with 98 percent accuracy within 125 days,
has defined a claim pending longer than 125 days as part of the
``backlog,'' and pledged to eliminate the backlog in 2015. Given the
volume and complexity of VA's workload, the use of standard forms are
indispensable to reaching and maintaining this level of accurate
production. This comment also suggested that the ``tens levels set
forth by the VA'' are redundant. We construe this comment as an
objection to VA's Schedule for Rating Disabilities, 38 CFR part 4,
rather than to the rules and procedures governing the processing,
development, and adjudication of claims, and as such this comment is
beyond the scope of this rule. We also note that the 10 percent
incremental evaluation applicable to the rating of disabilities is
explicitly required by statute. See 38 U.S.C. 1114, 1155. This
commenter also asserts that ``taking one to two years with no back
dating to the start of a claim is unacceptable by any standard.'' VA
agrees, and that is why our operational goal is 125 days. However, we
note that once a claim is granted, it is paid as of that claim's
effective date, which generally corresponds to the date of the receipt
of application, and is not controlled by the date of decision.
Multiple commenters objected to the rule as proposed on
constitutional grounds. These comments generally advanced two
arguments. First, commenters argued that requiring veterans to fill out
an application form deprives them of benefits without due process of
law. Second, commenters advanced the related argument that attaching
different effective date consequences to whether claims originate in
paper or electronic format violates the equal protection component of
Fifth Amendment due process.
VA disagrees with these comments, but believes an extended
doctrinal discussion is unnecessary given the revisions to our original
proposal that we adopt in this final rule. By adopting the intent to
file process, VA has provided multiple standardized but claimant-
friendly avenues for veterans to hold an effective date while they fill
out a formal application form, including oral communications with
designated VA personnel. The same amount of effective date protection
is available for both paper and electronic inputs. Since this final
rule provides that claimants can secure an effective date of benefits
with only the minimal action necessary to constitute an intent to file,
any constitutional concerns arising out of the rule as proposed are
obviated.
One comment argues that VA is changing position from historical
practice so suddenly that it renders VA's actions arbitrary and
capricious. The argument that the proposed change was too sudden is
belied by its very status as a proposal. This rule originated as a
proposed rule, and received numerous comments as well as vigorous
public scrutiny and debate. In response to the formal comments
received, we have revised the proposal significantly in order to
reconcile the competing interests as faithfully as possible.
Many comments advanced the position that VA should not consider
rule changes when other avenues for improving the accuracy and
efficiency of the claims system are available. The embedded premise of
these comments is that so long as there is any room for improvements in
training, staffing, management of AOJ personnel, and innumerable other
areas of administrative responsibility, rule change is impermissible.
VA disagrees for two reasons. First and foremost, many of the inherent
difficulties in administering a system as large and complex as the VA
benefits system are exacerbated by the prevalence of non-standard
submissions. Second, as many commenters acknowledged, VA is actively
engaged in improving all aspects of its operations. VA is not relying
solely on regulatory change to achieve its goals, but does believe
regulatory change is necessary and justified. In any event, these
comments are beyond the scope of the rule.
One comment pointed out there would be inconsistencies between the
legal structure of the claim system in this rule as proposed, and as
reflected in the consolidated re-proposal of the Regulation Rewrite
project. 78 FR 71042 (Nov. 27, 2013). The Regulation Rewrite project
was not designed to formulate and implement changes to the substantive
content of VA's regulations. The Regulation Rewrite project is a
comprehensive multi-year effort to ``reorganize and rewrite'' VA's
regulations governing claims currently governed by 38 CFR part 3. 78 FR
at 71042. Substantive legal changes have been incorporated into the
rewritten regulations throughout the project. See e.g., 78 FR at 71065
(discussing changes to 38 CFR part 5 as proposed to accommodate
provisions of Section 502 of Public Law 112-154 dealing with persons
authorized to sign a claim on a veteran's behalf). Substantive changes
at the regulatory level will be handled in similar fashion, with the
content of any final publication of 38 CFR part 5 being revised to
incorporate the current state of the law.
I. Other Regulations
VA has determined that revisions to current adjudication
regulations which were not published in the proposed rule are necessary
to ensure consistency with the changes in this final rule. Therefore,
VA revises current 38 CFR 3.108, 3.109, 3.151, 3.403, 3.660, 3.665, and
3.666. and 3.701, which would not have been amended in the published
proposed rule, by generally replacing the phrase ``informal claim''
with the phrase ``claim or intent to file a claim as set forth in Sec.
3.155(b).'' Since VA is eliminating the term ``informal claim,'' it has
removed references to the phrase ``informal claim'' and replaced it
with the phrase ``claim or intent to file a claim'' for consistency in
these adjudication regulations to reflect this change.
We have also made minor changes in phrasing to the affected
regulations in order to execute this change. In particular, we have
amended
[[Page 57679]]
Sec. 3.403(a)(3) by removing the phrase, ``notice of the expected or
actual birth meeting the requirements of an informal claim'' and
replaced it with ``a claim or intent to file a claim as set forth in
Sec. 3.155(b)''. This change preserves the generally beneficial nature
of paragraph (a)(3) by providing a date-of-birth effective date
whenever VA receives a claim or an intent to file a claim within 1 year
of the veteran's death. The replacement of the term ``informal claim''
with ``intent to file a claim'' does not change the substance of these
regulations.
In Sec. 3.666(c), we have simply removed the phrase ``(which
constitutes an informal claim)'' and have not replaced it with a
reference to an intent to file a claim. This section governs resumption
of payment of pension for incarcerated beneficiaries and fugitive
felons upon release from incarceration. An intent to file a claim is
simply inapposite to this situation, because VA does not require a
claim for resumption of payment in this context. VA makes the necessary
adjustments upon receipt of satisfactory notice. Simply replacing the
language in the parenthetical with language designed for the intent to
file process would have the bizarre effect of requiring an intent to
file a claim, and therefore ultimately a claim, in a context where VA
has no reason to require a separate claim. Accordingly, we have simply
removed this parenthetical to make clear that pension will be resumed
as of the day of release from incarceration if notice is received
within one year following release.
We have changed the wording of Sec. 3.701(b), which provides for
elections between pension and compensation. Paragraph (b) now reads,
``[a]n election generally must be in writing and must specify the
benefit the person wishes to receive.'' This is necessary because an
intent to file a claim is a placeholder in VA's systems, and is not
structured to be a substantive submission, such as one affecting the
election of benefits.
II. Changes to Appeals Process Based on Public Comments
A. Commencement and Perfection of an Appeal
VA revises Sec. 20.201 to incorporate the standardized NOD
requirement substantially as proposed, with minor amendments and
clarifications. In newly added paragraph (a), VA outlines the
requirements for appeals relating to cases in which the AOJ provides a
standard form for the purpose of initiating an appeal. In paragraph
(a)(1), entitled ``Format,'' VA has provided that, for every case in
which the AOJ provides, in connection with its decision, a form
identified as being for the purpose of initiating an appeal, an NOD
would consist of a completed and timely submitted copy of that form. In
these cases, VA will not accept as an NOD any other submission
expressing disagreement with an adjudicative determination by the AOJ.
As we discuss in greater detail below, this means a completed form must
be submitted within one year from the date of mailing of notice of the
AOJ decision, or, if VA requests clarification of an incomplete form,
within 60 days of the date the request was sent, or the remainder of
the one year period from the date of mailing of notice of the AOJ
decision, whichever is later.
One commenter suggested that VA's statutory authority in 38 U.S.C.
501(a)(2) to establish the ``forms of application'' does not extend to
notices of disagreement. This commenter argued that the term
``[a]pplication for review on appeal'' in 38 U.S.C. 7106 is confined to
the context of administrative appeals to the Board by VA officials and
does not include notices of disagreement. We agree that section 7106,
standing alone, potentially bears the reading that an ``[a]pplication
for review on appeal'' refers only to an administrative appeal.
However, we make no changes based on this comment, for three
reasons. First, while section 7106 permits the commenter's reading, it
does not require it. The limitation in the first sentence of section
7106 that an application for review on appeal must be received within
the one-year period described in 38 U.S.C. 7105 could be read simply to
impose a time limit on administrative appeals, and does not imply that
requests for Board review other than administrative appeals are
something other than an ``[a]pplication for review on appeal.'' Second,
38 U.S.C. 7107(a)(1) discusses how ``each case received pursuant to an
application for review on appeal'' will be docketed. This statutory
section governs the docketing of all appeals before the Board, not just
administrative appeals. Third, section 7108 also refers to an
``application for review on appeal,'' and requires that it be in
conformity with the entirety of 38 U.S.C. Ch. 71. Nothing in the
language or context of this statute implies that the term ``application
for review on appeal'' is confined to administrative appeals, and the
fact that all ``application[s] for review on appeal'' must comply with
all requirements in 38 U.S.C. Ch. 71 implies that an ``application for
review on appeal'' is any request for Board review. Chapter 71 includes
38 U.S.C. 7105, the statute governing requirements of, and treatment
of, NODs.
Some commenters pointed out that the standardized NOD form
addresses only compensation claims. As the proposed rule explained,
this is necessary due to the legal structure of VA and the dynamics of
VA's appellate workload. VA has chosen a flexible standard rather than
identifying a particular form number or control number in the rule text
in order to ensure the rule functions for all of VA's diverse
operations. The standard for what constitutes an NOD applies to all VBA
benefit lines, as well as the rest of VA. However, the current standard
NOD form was designed only for compensation claims. One of the key
features of the form's design is that it solicits particular pieces of
information relevant to a compensation claim. Standard NOD forms for
other types of benefits, such as loan guaranty and educational
benefits, have not yet been created. Requiring appeals of other
benefits, such as home loan guaranty or education benefits, to be
submitted using this form in its current state would likely be
confusing to veterans.
At the same time, the overwhelming majority of the VA appellate
workload concerns appeals of AOJ decisions on claims for compensation.
Board of Veterans' Appeals, Department of Veterans Affairs, Report of
the Chairman: Fiscal Year 2012, at 22 (2013) (96.1 percent of Board
dispositions in FY 2012 were for compensation claims). Therefore, VA is
concerned that making the NOD form so generic as to accommodate appeals
of all benefits VA-wide might dilute much of the efficiency gain VA
expects from mandating the use of standardized forms. Nevertheless, VA
will continue to seek ways to provide a standardized format for VA
benefits lines to receive an appeal, whether on one all-purpose form or
individual specialized forms.
To reflect these current realities, the standard reflected in
amended Sec. 20.201(a)(1) is designed to produce a single rule that
can function flexibly VA-wide while allowing for the creation of forms
that are functional for each VA benefits line. Additionally, Sec.
20.201(b) provides a ``fallback'' standard for benefits where
standardized appellate processing is not as pressing a need as it is
with compensation claims. This approach allows for standard forms in VA
benefits lines where the volume, complexity, and frequency of appeal
call for standardization, without disrupting the administration of
other benefits that are infrequently appealed. In Sec. 20.201(b), if
VA does not provide a standard appeal form for a particular
[[Page 57680]]
type of claim, the claim is governed by the current standard for what
constitutes an NOD as provided in current Sec. 19.26 and regulatory
text of Sec. 19.23(b) and Sec. 20.201(b). As of the publication of
this final rule, VA only expects regularly to provide a standard appeal
form for compensation claims and similar monetary benefits claims.
However, VA may choose to provide standard forms with AOJ decisions for
other benefits lines as the volume and dynamics of VA's workload
continue to evolve. Additionally, if VA fails to provide a standard
appeal form to the claimant due to a case-specific error, the claimant
would be able to initiate an appeal under the current standard for an
NOD where a written communication expressing dissatisfaction or
disagreement and a desire to contest the result will constitute an NOD.
See Sec. 20.201(b).
The second sentence makes clear that if the AOJ provides a standard
form with its decision, triggering the applicability of Sec.
20.201(a), VA will not accept a document or communication in any other
format as an NOD. VA believes this rule is necessary to make use of the
standard form mandatory and maximize improvement and efficiency in the
appellate process. Additionally, VA clarifies in this final rule that
submitting a different VA form does not meet the standard for an NOD in
cases governed by Sec. 20.201(a). Many VA forms, such as VA Form 21-
4138, Statement in Support of Claim, are so generic that they would not
yield the clarity and standardization this rule change is designed to
achieve.
In the future, different standard forms may be developed for
different benefit lines. Under this final rule, the particular version
provided with the AOJ decision must be used. For example, if a claimant
received an AOJ decision relating to a compensation claim and received
a compensation-focused form (such as VA Form 21-0958, Notice of
Disagreement) from the AOJ, the claimant could not initiate an appeal
by returning a different form developed for the purpose of initiating
appeals of AOJ decisions relating to a home loan guaranty.
In Sec. 20.201(a)(2) of this final rule, VA has made clear that it
may ``provide'' the form to the claimant electronically or in paper
format. VA has provided that if a claimant has an online benefits
account such as eBenefits, notifications within the system that provide
a link to a standard appeal form would be considered sufficient for the
AOJ to have ``provided'' the form to the claimant and trigger the
applicability of Sec. 20.201(a). Similarly, if a claimant has provided
VA with an email address for the purpose of receiving communications
from VA, emailing either a copy of the form itself or a hyperlink where
that form may be accessed is sufficient. The email should identify that
the hyperlink is to a required VA appeal form. Some comments could be
read to suggest that VA should provide the form in both electronic and
paper format to all claimants. To the extent this was the commenters'
intent, VA rejects this suggestion. Sending paper forms to claimants
who have established an online benefits account or otherwise indicated
an intent to receive communications from VA in electronic format, such
as by providing VA with an email address for that purpose, would be
duplicative, wasteful, and inconsistent with VA's goals to modernize
the claims and appeals process.
Finally, if a claimant has chosen to interact with VA using paper,
VA will provide a paper version of the standard form in connection with
its decision. The specific piece of paper that is sent to the claimant
need not be returned in order to constitute an NOD, but the same form
must be returned. In other words, if a claimant is sent a copy of a
particular form, he or she must return a completed copy of that form,
but not necessarily the same piece of paper that was mailed to the
claimant.
Several commenters expressed concern about VA's procedure for
furnishing the standard form to claimants and inquired as to the
procedure VA would take in order to obtain the correct VA form from the
claimant if an alternate communication is received by VA. As we explain
above, the requirement for an NOD to appear on a standard form is only
triggered when VA provides a form for the purpose of initiating an
appeal in connection with its benefits decision. Accordingly, the
requirement to use a standard form necessarily only applies to
claimants who have already received that form, and an explanation of
how to appeal VA's decision. See 38 U.S.C. 5104 (notice of Secretary's
decision ``shall include an explanation of the procedure for obtaining
review of the decision''). In the event VA receives an incomplete
standard NOD form, it will follow the procedures set forth in Sec.
19.24(b)(1). VA will furnish the appropriate form or the standard NOD
form to claimants in paper format with the decision notification letter
as well as providing a hyperlink to the standard form in the decision
notification letter.
One comment suggested that Sec. 20.201(a)(2) be revised to state
that VA ``must'' provide the appeal form in the applicable format,
rather than ``may.'' This same comment asserts the rule ``assume[s] VA
will provide that form in its decision letter.'' This comment is
predicated on a misunderstanding of the rule. Again, the requirement to
use the standard form is not triggered unless VA provides the form in
connection with its decision. Inserting the term ``must'' into Sec.
20.201(a)(2) would broaden the scope of claims for which use of a form
would be mandatory.
One comment suggested that Sec. 20.201(a)(2) should be revised to
require that the form be provided to the claimant's representative, if
any, in addition to the claimant. We have considered this suggestion
and agree. A claimant's representative generally must receive the same
decision notice that is sent to the claimant. 38 U.S.C. 5104(a). While
this statutory principle does not necessarily imply that any
representative must receive the form in order to trigger the
requirement that the form be used to initiate an appeal, ensuring
representatives receive the necessary form adds minimal additional
administrative burden.
However, we do not believe any revisions are necessary in order to
make this clear. The rule as proposed and as here confirmed as final
provided that the requirement to use a standard form arises when the
AOJ provides the standard form, ``in connection with its decision.''
Because the same statute governing content of VA decisions specifies
that representatives are to receive the same notice that is sent to the
claimant, this implies that any representative should also receive the
form. We note that this reasoning implies that the presumption
established in Sec. 20.201(a)(3) will apply to the question of whether
the form was provided to the representative. Additionally, this rule
does not alter the scope of evidence or argument submission within the
VA system. Therefore, if a representative is unsure whether the form
was provided, particularly in a compensation claim, we see no readily
apparent substantive reason why the representative would not simply use
the form, which is and will remain widely available, to keep the
veteran's claim moving as quickly as possible. We see no reason why a
trained, accredited representative who is aware of VA forms would spend
an inordinate amount of time attempting to protect an option to submit
an NOD in a non-standard narrative format, rather than simply filling
out a form and submitting argument on a separate document if necessary.
Finally, we note the fact that the representative must
[[Page 57681]]
receive the form in order to trigger the requirement that the form be
used does not imply that the representative must receive the form in
the same format as the claimant. In particular, a representative with
access to VA's Stakeholder Enterprise Portal, or who otherwise
interacts with VA electronically, does not have to receive the form in
paper merely because he or she represents a claimant that prefers to
interact with VA through paper.
In Sec. 20.201(a)(3), VA has provided that any indication
whatsoever in the claimant's claims file or benefits account of
provision of a form would be sufficient to presume the form was
provided, triggering the applicability of Sec. 20.201(a) rather than
Sec. 20.201(b). Under this rule, an indication as minimal as a
statement in a decision notification letter such as ``Attached: VA Form
21-0958'' would be sufficient to trigger the presumption that the form
was provided and Sec. 20.201(a) governs. See Butler, 244 F.3d at 1339-
41 (presumption of regularity applies to the administration of veterans
benefits).
In Sec. 20.201(a)(4), VA provides that, if a standard VA form
requires some degree of specificity from the claimant as to which
issues the claimant seeks to appeal, the claimant must indeed provide
the information the form requests in order for the submission to
constitute an NOD. For example, the current form provides claimants
with a selection of separate boxes allowing claimants to identify broad
categories of disagreement. VA believes it would be helpful to the
process to have this requirement in the governing regulation.
Several commenters objected to the requirement that an appeal be
initiated on a standard form. Many commenters advanced the position
that VA does not have authority to require that NODs be on standard
forms designed for the purpose of initiating an appeal, and provided to
the claimant with an explanation that the form must be used to initiate
an appeal. In particular, some commenters argued that governing
statutes did not allow VA to mandate the use of a form and that whether
a document is an NOD is a question of law for the Veterans Court to
determine de novo under 38 U.S.C. 7261(a). Commenters also stated that
requiring an NOD form violates the Court's interpretation and plain
language of 38 U.S.C. 7105.
VA has clear authority to require that a claimant submit an NOD on
a particular form, and accordingly does not agree with these comments.
The Federal Circuit has explicitly held that 38 U.S.C. 7105 ``does not
express a complete and unambiguous meaning for the statutory term
`notice of disagreement,' '' and that VA's implementation of section
7105 accordingly must receive the significant deference due an agency's
reasonable construction of a statute it administers. Gallegos v.
Principi, 283 F.3d 1309, 1313 (Fed. Cir. 2002); see Chevron, U.S.A.,
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45
(1984). Additionally, Congress has specifically delegated authority to
VA to issue rules concerning ``the forms of application,'' 38 U.S.C.
501(a)(2), and has characterized a request for Board review as an
``[a]pplication for review on appeal.'' 38 U.S.C. 7106, 7107, 7108.
These explicit delegations of authority, coupled with the significant
benefits that consistent use of the standard NOD form will have in
improving the timeliness and accuracy in processing of veterans'
appeals, make clear that our construction of section 7105 is
reasonable.
It is irrelevant that the Veterans Court might analyze whether a
particular document qualifies as an NOD as a question of law as opposed
to a question of fact. If anything, this highlights the essentially
interpretive nature of the current standard for an NOD. The Veterans
Court's authority to review VA's determinations regarding whether a
particular veteran filed a timely NOD under the legal standard
applicable to that veteran's case does not have any bearing whatsoever
on VA's authority to define, by regulation, the legal standard for an
NOD, so long as VA's definition is consistent with the governing
statute, and a reasonable interpretation of any statutory ambiguity.
Part of the rationale for requiring standard VA forms, particularly
for the appeals of compensation claims, is that they enable VA to
identify the substance of an appeal as early as possible in the
process. Additionally, inputs from the claimant in a standardized
format are much more easily turned into data that can be used in
evaluating and processing a claim or appeal.
VA strives to maintain the veteran-friendly, pro-claimant nature of
the appeals process by providing a format in the standard form that
allows claimants to choose from pre-printed selections as well as ample
space on the form for statements or comments in a narrative format.
Some commenters expressed concern that mandating the use of a
standard form means VA will not provide its statutory duty of assisting
claimants with developing their claims or providing notice to
claimants. Some maintained that the duty to assist precludes VA from
requiring appeals be initiated on standard forms. The statutory duty to
assist plainly does not require VA to accept NODs regardless of the
format in which they are filed; rather, it governs what efforts VA must
undertake to help a veteran secure evidence necessary to establish the
elements of entitlement. 38 U.S.C. 5103A. That VA has a duty to gather
evidence does not imply VA cannot issue reasonable regulations within
its explicitly delegated statutory authority that are necessary to
administer the claims process. Further, the Federal Circuit has held
that what constitutes an NOD is ambiguous in 38 U.S.C. 7105, which,
unlike 38 U.S.C. 5103A, applies specifically to the appellate process.
VA's regulations implementing this statutory term accordingly receive
Chevron deference. Gallegos, 283 F.3d at 1313.
VA disagrees with these comments, but offers one clarifying change.
The plain language of Sec. 19.24(a), both as proposed and as here
confirmed as final, requires VA to identify and implement any necessary
development or review action when a timely notice of disagreement is
filed. As proposed, Sec. 19.24(a) provided that the AOJ ``may''
reexamine the claim and determine what development or review action is
warranted. The use of the term ``may'' in the proposed rule was
consistent with the inherently discretionary nature of VA's development
and review obligation specific to this phase of the process, and with
the general scope of the duty to assist. See 38 U.S.C. 7105(d)(1) (AOJ
must take ``such development or review action as it deems proper'');
see also 38 U.S.C. 5103A(a), (d) (Secretary must make reasonable
efforts to assist in obtaining evidence ``necessary'' to substantiate
the claim, and must provide a medical examination when one is
``necessary to make a decision''). However, to make clear that the AOJ
is required to review the claim in cases where a timely NOD is filed
and make the threshold determination of whether any further development
or review action is deemed necessary, we have changed ``may'' to
``will'' in this final rule. This rule does not alter VA's substantive
duties in regard to the processing of NODs. VA is only requiring that
claimants provide their expression of dissatisfaction or disagreement
of an AOJ decision in a specified format, i.e., on a standard form.
This does not alter the scope of VA's duty to take appropriate review
and development action upon the filing of a notice of disagreement, or
in any way affect VA's duty to assist claimants.
One commenter argued that AOJ personnel failing to recognize an NOD
[[Page 57682]]
under the current standard indicates a need for better training, not
imposing a requirement on a veteran to complete a form. We disagree
with the embedded premise of this comment that the current standard is
the ``correct'' standard that must be maintained regardless of evidence
and reasoning indicating that it harms veterans and VA's efforts to
accurately and efficiently process appeals of benefits decisions.
Furthermore, VA has rigorous training programs for AOJ personnel, and
these will continue under the implementation of this rule. More
fundamentally, the standard for what constitutes an NOD under the
current rule is inherently subjective, meaning no amount of training
can totally eliminate error in the identification of NODs. Even
determinations that are not ``erroneous'' can be overturned by higher
decisionmakers who simply take a different view of whether the
subjective standard of what constitutes an NOD is met given the facts
of the case.
Several commenters criticized the layout or content of the current
standard NOD form. Some stated that the content of the current standard
appeals form did not provide claimants with an option for claimants to
select an AOJ's de novo appellate review. Other commenters expressed
concern that the form is inadequate to appeal certain benefits. Other
commenters suggested the form contains too many terms of art to be
useful to veterans. Other commenters questioned the motive behind VA
inquiring whether claimants would like direct communication with the
AOJ regarding the appeal. Generally, VA is considering the comments
regarding the content of the current standard appeals form and will
update or revise the form based on these comments as necessary.
Specifically, VA is considering whether the form should be revised to
include an election of de novo AOJ review pursuant to 38 CFR 3.2600, as
multiple commenters urged. One commenter expressed concern that the NOD
form does not have any language or endorsement for the veteran to
provide indicating that he or she desires to contest the result of the
agency's decision. Similarly, another commenter even suggested that
this omission could lead to VA determining its own form, even if
completed, does not constitute an NOD, and disallow appeals due to
deficiencies in a form it had mandated the use of. While VA can and
will continue to revise forms based on experience in the administration
of its programs, we note that the filing of the form itself provides
the necessary indication that the veteran disagrees with the original
decision and desires to contest the result.
It is true the form contains terms of art specific to compensation
claims. We address this issue in section II.D. below. In particular,
however, we note that we have revised Sec. 19.24(b)(2) to enumerate
the information required to complete a standard NOD form with greater
particularity. As we explain more fully in section II.D., the form will
continue to solicit more detailed information from the veteran because
this is useful in orderly and efficient processing, but in Sec.
19.24(b)(2)(iii) we clarify that the form is considered complete if it
enumerates the issues or conditions for which appellate review is
sought. Although no changes to the standard NOD form were made, we did
amend the instructions to the NOD form to provide notice to claimants
of what is minimally necessary to constitute a complete NOD as well as
the action VA will take when an incomplete NOD is received.
To the extent commenters object to the current form's focus on
issues specific to compensation claims, rather than other benefit
lines, we address this issue above--the requirement to use a form is
only triggered when VA provides the claimant a form for the purpose of
initiating an appeal in connection with its initial decision. This will
enable VA to tailor the content of standard NOD forms to suit the
substantive needs of VA's diverse benefit lines and operations. To the
extent commenters object to the lack of a dedicated space on the
current form to identify a claimant's belief that VA wrongly denied
entitlement to an ancillary benefit related to a compensation claim,
such as special monthly compensation, aid and attendance, or total
disability by reason of individual unemployability, there are at least
two spaces on the current form where it would be appropriate to
identify these issues, to the extent a claimant is able to provide this
degree of specificity. One, such information could be included on the
section of the form asking the claimant to identify disagreement as to
the evaluation assigned. While each of these ancillary benefits have
their own specific criteria, they are all fundamentally amounts of
increased compensation that are owed to the claimant based upon the
circumstances, including severity of disability, like any other rating
and as, discussed above, fall within the scope of a complete claim when
entitlement is shown by evidence of record and stems from one or more
enumerated issues in a claim. See 38 CFR 3.350, 4.16. Two, such
information could be included in the section on the form specifically
designated for a narrative statement from the claimant. Additionally,
though we view the election of AOJ de novo review as beyond the scope
of a rulemaking requiring a standard form to initiate an appeal, we
note that the claimant can also elect to utilize this procedure in this
space on the current standard NOD form designed for a narrative
statement. VA will consider whether the form should be revised to
include a dedicated space for these types of information based on its
ongoing experiences in administration of the standard NOD form process.
The form includes a space to elect direct communication with the AOJ
regarding the appeal because informal communications between AOJ
personnel and veterans and their representatives are extremely valuable
in clarifying and sometimes even resolving the issues in an appeal.
Many claimants appreciate the availability of this direct and informal
engagement from AOJ personnel. However, other claimants react
negatively, and even feel that VA is harassing them if multiple
attempts at phone contact are made. The election allows VA to target
its limited AOJ personnel time to cases where it is likely to be
useful.
In Sec. 20.201(a)(5), VA states that the filing of an alternate
form or other communication does not extend, toll, or otherwise delay
the time limit for filing an NOD. In addition, VA clarifies that
returning the incorrect VA form, including a form designed to appeal a
different benefit, does not extend the deadline for filing an NOD. This
policy is necessary to bring efficiency to appeals processing. Imposing
a requirement that AOJ personnel, even in cases where a form pursuant
to Sec. 20.201(a)(5) was provided to the claimant, must scour non-
standard claimant submissions in search of communications which might
be reasonably construed as an expression of disagreement in order to
make sure the claimant has not attempted to initiate an appeal in the
incorrect format would require exactly the same time-intensive
interpretive exercise that VA seeks to end by requiring use of a
standard form. VA believes the one-year statutory period in which to
file an NOD is ample time to fill out and return the standard NOD form.
Some commenters requested that an alternate form or other communication
toll the time limit for filing the correct form. For instance, one
commenter urged the addition of new text in Sec. 20.201(a)(5)
essentially providing that if a communication that would qualify as an
NOD under current
[[Page 57683]]
rules is received in a case governed by Sec. 20.201(a), VA will
provide another copy of the correct form and provide another 60 days
(or the remainder of the one year statutory period in which to initiate
an appeal, whichever is longer) for the claimant to return it. Other
commenters suggested that the time limit not be tolled, but that VA
still be required to identify statements indicating a claimant's
disagreement not filed on the standard NOD form, notify the veteran of
the deficiency, and re-send the NOD form.
VA makes no change based on these comments. The point of requiring
appeals to be initiated on standard forms is to reduce the need for AOJ
personnel to engage in the time-intensive interpretive review of non-
standard narrative submissions. Requiring VA to identify that a
particular submission can ``be construed as disagreement'' in a case
otherwise governed by the requirement to use a standard form would
destroy the predictability and efficiency that use of a form makes
possible because it would require the same amount of ``by hand'' review
as is required under the current system. Given that the requirement to
use the correct form is only triggered when VA has provided the form to
the claimant, we do not believe it is justified to create an exception
requiring exactly the kind of interpretive review of narrative
submissions, in such cases, that this rule seeks to end. However, we
note that the fact we do not create an exception requiring AOJ
personnel to engage in this type of review does not imply that this
rule would prevent AOJ personnel from notifying a veteran who has
clearly expressed disagreement in a narrative format that he or she
must use the form. In many instances, AOJ personnel may even conclude
that doing so serves the interest of both clarity and efficiency.
In Sec. 20.201(c), VA clarifies that it does not require a
standardized form for simultaneously contested claims, which are claims
in which the award of benefits to one person may result in the
disallowance or reduction of benefits to another person. 38 CFR
20.3(p). Such claims arise only rarely and, irrespective of the nature
of the benefit sought, they commonly present unique issues involving
marital or other relationships of different individuals claiming
entitlement to the same or similar benefits based on their relationship
to the same veteran. Further, in 38 U.S.C. 7105A, Congress has
prescribed a 60-day time limit for filing NODs in simultaneously
contested claims. In view of these claims' unique features, we do not
alter those governing standards. Moreover, because simultaneously
contested claims constitute a very small portion of VA's appellate
caseload, excluding those claims from the requirement to use
standardized forms will not significantly affect the objectives of this
rule. VA, therefore, states in paragraph (c) of Sec. 20.201 that the
provisions of Sec. 20.201(b) apply to simultaneously contested claims.
However, claimants in simultaneously contested claims could use a
standard VA form, when feasible, even though they would not be required
to do so.
B. Procedures for NODs Received on Standard Form
This final rule creates two new sections in part 19. New Sec.
19.23 generally clarifies which procedures apply to appeals governed by
Sec. 20.201(a), and which apply to appeals governed by Sec.
20.201(b). New Sec. 19.23(b) specifies that current procedures in
Sec. Sec. 19.26 through 19.28 would continue to apply to appeals of
benefits decisions governed by Sec. 20.201(b), and new Sec. 19.23(a)
provides that these procedures would apply only to those cases. In
other words, the provisions of Sec. Sec. 19.26 through 19.28 apply
only to appeals of AOJ decisions relating to cases in which no standard
form was provided by the AOJ for the purpose of initiating an appeal.
New Sec. 19.23(a) also clarifies that the procedures in new Sec.
19.24 apply to appeals of AOJ decisions for cases in which the AOJ
provides a form for the purpose of initiating an appeal, which are
governed by Sec. 20.201(a). With this new clarifying section, VA hopes
to eliminate any confusion potentially caused by the fact that
Sec. Sec. 19.26 through 19.28 will no longer provide governing
procedures for the overwhelming majority of VA's appellate caseload,
but must be retained for processing NODs relating to other benefits for
which no standardized NOD form is provided.
One commenter stated that the standard form for a NOD primarily
addresses compensation claims and not other types of claims such as
pension or survivor benefits. Currently, the compensation-focused form
is VA's only standard NOD form. VA has not yet designed appeal forms
that meet the specific needs of all other VA benefit lines.
In paragraph (a) of new Sec. 19.24, VA provides that its practice
of reexamining a claim whenever an NOD is received and determining if
additional review or development is warranted are also applied to NODs
submitted on standardized forms.
One comment suggested that 38 CFR 19.27 be changed to include
reference to Sec. 19.24 in addition to its current reference to Sec.
19.26. Section 19.27 specifies the procedures for situations when VA
does not believe a document filed by a claimant expresses disagreement
and a desire to appeal with adequate clarity to constitute an NOD. VA
views Sec. 19.27 and related Sec. 19.28 as being necessary primarily
due to the current amorphous standard for what constitutes an NOD, and
believes that adopting standard forms will obviate the need for these
procedures in the vast majority of cases. In cases governed by Sec.
20.201(a) and accordingly by Sec. 19.24, there should be no need for
appellate consideration of the ``adequacy'' of the NOD--the correct
form either was, or was not, filed within the applicable timeframe. VA
accordingly declines to make Sec. 19.27 applicable to the procedures
in Sec. 19.24.
However, in considering this comment, VA has concluded it is
necessary for this final rule to include some mechanism for claimants
to challenge VA's determination that the correct form was not timely
filed. Even if there should be no issue as to whether an NOD was
``adequate'' in a case governed by Sec. 20.201(a) and Sec. 19.24,
there is the possibility for technical errors or errors by AOJ
personnel. We have therefore revised Sec. 19.24 as proposed to include
a new paragraph (d), which makes clear that VA's determination that no
NOD was filed may be appealed. However, this paragraph also makes clear
that appellate consideration is limited to the question of whether the
correct form was timely filed. This limitation is necessary in order to
prevent this avenue for challenging VA's determination that no form was
filed from creating an open-ended exception to the otherwise valid
requirement that an NOD must be on a standard form in cases governed by
Sec. Sec. 20.201(a) and 19.24. In the event a competent appellate
review authority determines that a valid NOD was in fact filed, the AOJ
would be required to process the appeal, to include providing a
statement of the case relating to the substance of the appeal. We note
that, unlike Sec. 19.27, new paragraph 19.24(d) does not utilize the
procedures for administrative appeals in 38 CFR 19.50-19.53. Those
procedures are designed to accommodate disagreements among agency
personnel that admit of a degree of subjective difference of opinion,
such as whether an ``adequate'' notice of disagreement under the
traditional standard has been filed. Our purpose in
[[Page 57684]]
making VA's determination that no NOD governed by Sec. Sec. 20.201(a)
and 19.24 was filed appealable is to provide claimants a way to appeal
any administrative or technical errors by VA personnel in the
determination of whether the correct form was timely filed, not to
resolve disagreements among AOJ personnel in the resolution of
subjective questions such as whether an ``adequate'' NOD has been
filed.
Related to this issue, another comment asks whether VA believes it
has authority to limit the Veterans Court's jurisdiction by rejecting
an NOD that satisfies the requirements of 38 U.S.C. 7105. We respond to
the embedded premise of this comment, that requiring an NOD be on a
standard form is inconsistent with section 7105(d), in section II.A.
However, we have provided explicitly for appellate review of whether a
valid NOD has been filed even in cases where the requirement to utilize
a standard form attaches, in part to ensure claimants have a means of
obtaining factual review of VA's determinations as to whether the
correct form was filed in a timely way (short of the drastic step of
filing a petition for a writ of mandamus). VA has clear authority to
define what constitutes an NOD, but claimants have a right to review of
VA factual and legal determinations under any standard VA promulgates.
But the further suggestion that VA cannot establish any
requirements pertaining to what constitutes an NOD because those
requirements form a ``barrier'' to the Veterans Courts' review of the
merits of a claim cannot be correct. This would imply that VA is
prohibited, by virtue of the Veterans Court's mere existence, from
exercising authority explicitly delegated by statute. Further, we note
that it is well established that ``[a] court's prior judicial
construction of a statute trumps an agency construction otherwise
entitled to Chevron deference only if the prior court decision holds
that its construction follows from the unambiguous terms of the statute
and thus leaves no room for agency discretion.'' Nat'l Cable & Telecomm
Ass'n v. Brand X Internet Services, 545 U.S. 967, 982 (2005); see also
Eurodif S.A. v. U.S, 423 F.3d 1275, 1276-77 (Fed. Cir. 2005).
C. Complete and Incomplete Appeals Forms
In response to comments, in paragraph (b) of new Sec. 19.24, VA
has revised the proposed rule to reorganize this section for
clarification purposes by distinguishing between incomplete and
complete appeal forms. VA has redesignated proposed paragraph (b) as
``Incomplete and Complete Appeal Forms'' and restructured this section
to categorize ``incomplete appeal forms'' in subparagraph (b)(1) and
``complete appeal forms'' in subparagraph (b)(2). Section 19.24(b)(1)
outlines the procedures for when a claimant submits the correct form
timely but incomplete. VA believes that the authority to require a
claimant to use a particular form necessarily implies the authority to
require that the form be completed, to include identifying each
specific issue on which review of the AOJ decision is desired. VA
strongly believes that if veterans provide all information requested on
the standardized VA form, this will lead to the fastest possible result
for that individual veteran and the VA appellate system will work more
efficiently for all veterans. Accordingly, if VA determines a form is
incomplete, VA may require the claimant to timely file a completed
version of the form.
D. Completeness of the NOD Form
In revised Sec. 19.24(b)(2), VA describes the standard by which it
would determine whether or not a form to initiate an appeal is
complete, both in general and for compensation claims in particular. In
general, a claimant must provide the information to identify the
claimant, the claim to which the form pertains, any information
necessary to identify the broad category of the disagreement, and the
claimant's signature in order for that form to be considered complete.
However, we did not specifically enumerate the type of information
necessary to identify the claimant in the rule text in order to provide
VA with some flexability to ascertain the identity of a claimant by
using certain information or a combination of information which the
claimant may provide. For example, there are many claimants with
identical names to other claimants and a claimant's name alone may not
necessarily identify a specific claimant with a particular claims file.
If there is other information specific to a claimant such as a Social
Security Number, then VA would be able to identify a claimant to his or
her claims file even without the claimant's name. As opposed to
allowing VA to use the information provided in a combination of ways to
identify a claimant, we believe that enumerating the type of
information required to identify a claimant with specificity would
hinder both claimants and the VA processing NODs. If VA were to outline
the exact requirements of what is necessary to identify claimants in
its regulations, then a form which contained information that could
identify a particular claimant but did not contain other non-essential
information could render the form incomplete. This would result in VA
rejecting these forms for minor ministerial or formalistic
deficiencies, thereby delaying the processing and adjudication of a
claimant's appeal. By allowing VA to determine in its discretion what
information is necessary in identifying a claimant without specific
particularity in the regulations, the regulation will enable VA to
process these notices of disagreement without rejecting such forms as
incomplete if certain information was not provided, thereby eliminating
or preventing prolonged administrative delays and speeding up
completion of an appeal. For compensation claims being appealed, a form
is considered incomplete if it does not enumerate the issues or
conditions for which appellate review is sought. With respect to the
nature of disagreement, the form directs claimants to indicate, for
each appealed condition, whether they disagree with the AOJ's decision
on the question of service connection, disability evaluation, effective
date, and/or any other question. This information enables VA to more
efficiently process appeals and avoid expending time and other
resources on matters the claimant does not contest.
It is not VA's intention to be overly technical in determining
whether claimants have completed a form. The purpose of this final rule
is the orderly and efficient processing of veterans' claims and
appeals, not the exclusion of legitimate appeals, and VA's decision to
conclude that a form is incomplete and request completion will be
guided by this principle. See Robinson v. Shinseki, 557 F.3d 1355, 1361
(Fed. Cir. 2009) (``[i]n direct appeals, all filings must be read `in a
liberal manner' whether or not the veteran is represented''). As with
the consideration of claims meeting the standard of a complete claim,
VA stresses that it does not intend to consider a form used to initiate
an appeal to be incomplete and to request further completion unless
that is a reasonable course of action to facilitate orderly processing
of the appeal.
Several commenters stated that the requirement of a complete
standard form for an expression of disagreement ``converts a legal
notice into a substantive pleading by installing requirements in an
undefined form'' that violates 38 U.S.C. 7105(a) and that the form
requires a level of knowledge beyond the average veteran, especially
one who is not represented by a VA-accredited representative. VA
considers the requirements of a complete NOD
[[Page 57685]]
minimally burdensome to claimants. VA disagrees that providing basic
information sufficient to identify which claim or issue the claimant
seeks to appeal, such as identifying that an appeal pertains to a claim
for a knee disability as opposed to a shoulder disability, is
equivalent to requiring a substantive pleading sufficient to initiate a
civil action. In order to provide claimants with clear indication of
what constitutes a complete form as provided in Sec. 19.24(b)(2), we
have amended the instructions to the NOD form to provide the criteria
for a complete NOD but we have not changed or altered the NOD form
itself.
As we have explained, VA has intentionally drafted this rule to
make it possible for VA to respond to evolving needs in the appellate
workload, to include the possibility that benefit lines other than
compensation may need a standardized form to facilitate orderly
processing. However, this does not mean this rule would allow VA to
impose unlimited requirements into an undefined form. First of all,
alteration to any existing form, and creation of any new form, is
governed by the Paperwork Reduction Act (see below), which in many
cases requires public notice and comment before new collections of
information are legally valid. More fundamentally, however, any
requirement that VA ``inserts'' into a standard NOD form must be a
reasonable exercise of VA's statutory authority. If VA were to add to a
standard NOD form a requirement totally unrelated to providing notice
that the claimant disagrees with a VA decision and obtaining
information necessary to facilitate the orderly administrative action
such a notice triggers, that requirement would be beyond the scope of
the statutes that confer authority on VA to require the form in the
first place.
Section 19.24(b)(2) responds to commenters' concerns regarding the
level of specificity required for a form to be considered complete by
making clear that a form ``will,'' rather than ``may,'' be considered
complete if it meets the following criteria: Information to identify
the claimant; information to identify the claim to which the form
pertains, and information necessary to identify the specific nature of
the disagreement, to include for compensation claims, the issues or
conditions for which appellate review is sought; and the claimant's
signature. In particular, we note that Sec. 19.24(b)(2)(iii) as
revised provides that, for compensation claims, a form will be
considered complete if it enumerates the issues or conditions for which
appellate review is sought, or if it provides other more granular
information required on the form to identify the nature of the
disagreement (such as disagreement with disability rating, effective
date or denial of service connection). This means that, at a minimum,
VA would consider the identification of an issue, such as a ``shoulder
disability,'' sufficient for purposes of meeting this criterion for a
complete appeal form, even if the form on its face requires additional
information. While the current standard appeals form for compensation
claims instructs claimants to list each specific issue of disagreement,
it also provides selections for more detailed description in
association with each issue. For each issue of disagreement, claimants
can select an area of disagreement, e.g., service connection, effective
date of an award, evaluation of disability, or other and claimants can
also provide a percentage of the evaluation sought if applicable.
However, VA would consider this form complete if the claimant provides
biographical information, the specific issue(s), and the claimant's
signature. It would not be necessary for a claimant to describe the
area of disagreement or percentage of the evaluation sought for each
issue in order for VA to consider the form complete. Once VA receives
the complete NOD, it will make the appropriate readjudication
determinations necessary for those specific issues listed such as
determining whether the correct evaluation percentage or effective date
was assigned or if other benefits should have been granted based on the
evidence. However, we believe it is valuable for the form to solicit
information pertaining to the specific nature of the disagreement, even
if claimants can complete the form by providing less information. We
note that claimants will facilitate the timely consideration of their
appeals if they provide VA with as much information as possible
regarding the nature of their disagreement as early in the process as
possible.
One commenter asked if a veteran indicates a particular effective
date on a standard form, but the correct date is earlier, which date VA
would grant. In the clean hypothetical situation posited by the
commenter, the answer is that VA would grant the correct date. Again,
the requirement to use a standard form to initiate the appeal, even a
form that solicits particular information in order to facilitate
accurate and efficient consideration of the claim, does not alter the
scope of VA's ``development and review'' action required by 38 U.S.C.
7105(d).
E. Timeframe To Cure Incomplete NOD
In revised and redesignated Sec. 19.24(b)(3), VA states that
incomplete forms must be completed within 60 days from the date of VA's
request for clarification, or the remainder of the period in which to
initiate an appeal of the AOJ decision, whichever is later. VA provides
this 60-day grace period in order to protect the claimant's rights in
the event the statutory deadline has passed when VA determines the
claimant has filed an incomplete form. Given that submission of the
correct form would clearly identify to AOJ personnel that a claimant
wishes to pursue an appeal, VA would accept the incomplete form for
purposes of determining whether a claimant has met the statutory
deadline. However, the claimant must complete the form within the 60-
day timeframe. This time requirement would correspond to the current
60-day period provided in 38 CFR 19.26(c) for clarification of an
ambiguous NOD filed under the traditional process.
In Sec. 19.24(b)(4), VA states that if no completed form is
received within the timeframe established in paragraph (b)(3), the
decision of the AOJ shall become final.
Some commenters stated that incomplete NODs that are not cured
within 60 days would mean the veteran would forfeit the right to
appeal. As proposed Sec. 19.24(b)(2) clearly stated, ``[i]f VA
requests clarification of an incomplete form, a complete form must be
received within 60 days from the date of the request, or the remainder
of the period in which to initiate an appeal of the decision of the
[AOJ], whichever is later.'' Accordingly, the veteran does not forfeit
the right to appeal so long as a complete form is submitted within the
statutory one-year period in which to submit an NOD, or within the 60-
day ``grace'' period, whichever provides the veteran with more time to
cure the deficiency. The regulatory language makes clear to provide
that the issues or contentions enumerated in incomplete forms will
become final if they are not cured within the 60-day period or within
the statutory one-year period for submitting an NOD. In order to
address commenters' concerns that VA will deem a form incomplete
without providing any notice to the veteran, we have also revised Sec.
19.24(b)(1) to make clear that the requirement to cure or correct the
filing of an incomplete form by filing a completed version of the
correct form does not arise unless VA informs the claimant or his or
her
[[Page 57686]]
representative that the form is incomplete and requests clarification.
VA will not spend its limited resources by undertaking this cycle of
clarifying activity unless it is necessary to the orderly processing
and adjudication of the appeal. We also note that Sec. 19.24(b) as
proposed referenced the ``verification'' of an incomplete form. We have
replaced ``verification'' with ``clarification'' in the relevant
portion of Sec. 19.24(b)(1) as organized in this final rule.
In Sec. 19.24(b)(5), VA provides that if the completed form
arrives within the timeframe established in paragraph (b)(3), VA will
treat the completed form as the NOD and will reexamine the claim to
determine whether additional review or development is warranted.
Furthermore, if no further review or development is required, VA will
prepare a Statement of the Case pursuant to Sec. 19.29 of this part
unless the disagreement is resolved by a grant of the benefit(s) sought
on appeal or the NOD is withdrawn by the claimant.
VA initially proposed in Sec. 19.24(b)(5) that if a form is so
incomplete that the claimant to whom it pertains is unidentifiable, VA
would not take action on the basis of the submission of that form and
the form would be discarded. Moreover, VA proposed that it would always
attempt to identify the claimant to whom the form pertains based on any
statements or other information provided before discarding the form.
However, this proposed provision has been deleted as such instances are
rare. Even though this scenario is so rare that VA does not view it as
necessary to include in regulations, VA will always attempt to identify
the claimant to whom any form pertains based on all available context
and information.
In paragraph (c) of Sec. 19.24 of this final rule, VA provides
that if a form enumerates some, but not all, of the issues or
conditions which were the subject of the AOJ decision, the form would
be considered complete with respect to the issues on appeal.
Furthermore, VA clarifies that any issues or medical conditions not
enumerated would not be considered appealed on the basis of the filing
of that form and that those unnamed issues would become final 1 year
after the date of the mailing of the notice of the decision unless the
claimant files a separate form addressing those issues or conditions
within the timeframe set forth in paragraph (b)(3) of this section.
This does not prevent the claimant from appealing those issues or
contentions not named in the form or from filing a subsequent form
initiating appeals of other issues within the AOJ decision. VA has
added this clarification to the final rule in this paragraph (c) as the
proposed rule did not specifically state that a claimant would retain
the ability to appeal other unnamed issues or contentions within the
timeframe allowed by current Sec. 19.26(c).
F. Other Regulations
To ensure other regulatory sections that discuss NODs are
consistent with these changes, VA also adopts the minor revisions in
this final rule to a few other sections. Specifically, VA revises Sec.
3.2600, which discusses optional de novo review procedures at the AOJ
after an NOD is filed, to cross reference the format and timeliness
requirements of Sec. 20.201, and either Sec. 20.302(a) or Sec.
20.501(a), as applicable, in the first sentence of paragraph (a). VA
also revises Sec. 20.3(c), which currently defines an appellant as ``a
claimant who has initiated an appeal to the Board of Veterans' Appeals
by filing a Notice of Disagreement pursuant to the provisions of 38
U.S.C. 7105.'' Since 38 U.S.C. 7105 only requires that an NOD be
submitted in writing, VA revises 38 CFR 20.3(c) to cross reference the
format requirements in Sec. 20.201, and the timeliness requirements of
either Sec. 20.302(a) or Sec. 20.501(a), as applicable. VA believes
this revision would ensure that there is no confusion regarding what
requirements a claimant must follow to submit a valid NOD. Similarly,
Sec. 20.200 currently provides, in part, that an appeal includes ``a
timely filed Notice of Disagreement in writing.'' VA revises Sec.
20.200 to replace ``in writing'' with cross references to Sec. 20.201,
and either Sec. 20.302(a) or Sec. 20.501(a), as applicable.
Effective Date of Final Rule
In order to accommodate the changes to VA's claims and appeals
processes, VA estimates that it will need 6 months, or approximately
180 days, to prepare for and implement this final rule. This 180-day
period provides time for VA to conduct outreach efforts to inform and
educate veterans, claimants, their family members, authorized
representatives, and other stakeholders, to train and educate VA staff
on the more standardized process, and to implement changes to VA's
internal, operational business programs. As such, this final rule will
apply only with respect to claims and appeals filed 180 days after the
date this rule is published in the Federal Register as a final rule.
Claims and appeals pending under the current regulations as of that
date would continue to be governed by the current regulations.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires
that VA consider the impact of paperwork and other information
collection burdens imposed on the public. According to the 1995
amendments to the Paperwork Reduction Act (5 CFR 1320.8(b)(2)(vi)), an
agency may not collect or sponsor the collection of information, nor
may it impose an information collection requirement, unless it displays
a currently valid Office of Management and Budget (OMB) control number.
This final rule includes provisions constituting collections of
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
through 3521) that require approval by OMB.
I. Changes to the Scope of Currently Approved OMB Information
Collections
As part of the proposed rule, RIN 2900-AO81, VA previously
solicited comments on the collections of information contained in this
section. As noted in the proposed rule, this final rule will impose
amended information collection requirements in 38 CFR 3.154, 3.155,
3.812, and 20.201 which are described immediately following this
paragraph, under their respective titles. As required by the Paperwork
Reduction Act of 1995 (at 44 U.S.C. 3507(d)), VA has submitted these
information collection amendments to OMB for its review. Notice of OMB
approval for this information collection will be published in a future
Federal Register document.
Title: Standard Claims and Appeals Forms.
Summary of collection of information: The Department of Veterans
Affairs (VA) through its Veterans Benefits Administration (VBA)
administers an integrated program of benefits and services, established
by law, for veterans, service personnel, and their dependents and/or
beneficiaries. Title 38 U.S.C. 5101(a) provides that a specific claim
in the form provided by the Secretary must be filed in order for
benefits to be paid to any individual under the laws administered by
the Secretary. The amended collection of information in final 38 CFR
3.154, 3.155, 3.403, 3.660, 3.665, 3.666, 3.701, 3.812, and 20.201
would require claimants to submit VA prescribed applications in either
paper or electronic submission of responses, where applicable, in order
to initiate the claims or appeals process for all VA benefits, to
include but not limited to: Entitlement under 38 U.S.C. 1151, which
governs disability compensation and death benefits for a qualifying
[[Page 57687]]
disability or death of a veteran from VA treatment, examination or
vocational rehabilitation; disability compensation; non-service
connected pension; and dependency and indemnity compensation (DIC),
death pension, and accrued benefits. In addition, under this
rulemaking, we would require claimants to submit a standard form to
initiate an appeal. Information is requested by this form under the
authority of 38 U.S.C. 7105.
Description of need for information and proposed use of
information: There is no substantive change in the need for information
and proposed use of information collected for the following affected
OMB-approved Control Numbers:
2900-0791 (VA Form 21-0958)--This form will be used by
claimants to indicate a disagreement with a decision issued by a
Regional Office to initiate an appeal.
2900-0001 (VA Form 21-526 and 21-526b)--These forms are
used to gather the necessary information to determine a veteran's
eligibility, dependency, and income, as applicable, for the
compensation and/or pension benefit sought without which information
would prevent a determination of entitlement;
2900-0743 (VA Form 21-526c)--This form is used to gather
necessary information from service members filing claims under the
Benefits Delivery at Discharge or Quick Start programs under Title 38
U.S.C. 5101(a) used in a joint effort between VA and Department of
Defense (DoD) for the expeditious process of determining entitlement to
compensation disability benefits;
2900-0002 (VA Form 21-527)--This form is used to gather
the necessary information to determine a veteran's eligibility and
dependency, as applicable, for disability pension sought without which
information would prevent a determination of entitlement;
2900-0004 (VA Form 21-534)--This form is used to gather
necessary information to determine the eligibility of surviving spouses
and children for dependency and indemnity compensation (DIC), death
pension, accrued benefits and death compensation;
2900-0004 (VA Form 21-534a)--This form is used to gather
necessary information to determine the eligibility of surviving spouses
and children of veterans who died while on active duty service for DIC,
death pension, accrued benefits, and death compensation;
2900-0005 (VA Form 21-535)--This form is used to gather
necessary information to determine a parent's eligibility, dependency
and income, as applicable, for the death benefit sought; and
2900-0747 (VA Forms 21-526EZ, 21-527EZ, and 21-534EZ)--
These forms are used to gather the necessary information to determine a
veteran's eligibility, dependency, and income, as applicable, for the
compensation and/or pension and disability pension and to determine the
eligibility of surviving spouses, children and parents for dependency
and indemnity compensation (DIC), death pension, accrued benefits and
death compensation as well as other benefits.
2900-0572 (VA Form 21-0304)--This form is used to gather
the necessary information to determine eligibility for the monetary
allowance and the appropriate level of payment for a child with spina
bifida who is the natural child of a veteran who served in the Republic
of Vietnam during the Vietnam era and for a child with certain birth
defects who is the natural child of a female veteran who served in the
Republic of Vietnam during the Vietnam era.
2900-0721 (VA Form 21-2680)--This form is used to gather
the necessary information to determine eligibility for the aid and
attendance and/or household benefit.
2900-0067 (VA Form 21-4502)--This form is used to gather
the necessary information to determine if a veteran or serviceperson is
entitled to an automobile allowance and adaptive equipment.
2900-0390 (VA Form 21-8924)--This form is used to gather
the necessary information to determine if the application meets the
Restored Entitlement Program for Survivors (REPS) program which pays VA
benefits to certain surviving spouses and children of veterans who died
in service prior to August 13, 1981 or who died as a result of a
service-connected disability incurred or aggravated prior to August 13,
1981.
2900-0404 (VA Form 21-8940)--This form is used to gather
the necessary information to determine whether individual
unemployability benefits may be paid to a veteran who has a service-
connected disability(ies) which result in an inability to secure or
follow substantially gainful occupation.
2900-0132 (VA Form 26-4555)--This form is used to gather
the necessary information to determine the eligibility for the
Specially Adapted Housing (SAH) or Special Housing Adaptations (SHA)
benefits for disabled veterans or servicemembers.
Description of likely respondents: There is no substantive change
in the description of likely respondents for the following affected
OMB-approved Control Numbers:
2900-0791 (VA Form 21-0958)--Veterans or claimants who
indicate disagreement with a decision issued by a Regional Office (RO)
will use VA Form 21-0958 in order to initiate the appeals process. The
veteran or claimant may or may not continue with an appeal to the Board
of Veterans Appeals (BVA). If the veteran or claimant opts to continue
to BVA for an appeal, this form will be included in the claim folder as
evidence.
2900-0001 (VA Form 21-526 and 21-526b)--Veterans or
claimants who express an intent to file for disability compensation
and/or pension benefit may continue to use VA Form 21-526. Veterans or
claimants who express an intent to file for disability compensation for
an increased evaluation, service connection for a new disability,
reopening of a previously denied disability, or for a disability
secondary to an existing service connected disability or for other
ancillary benefits such as aid and attendance, automobile allowance,
spousal aid and attendance, or other benefit may continue to use VA
Form 21-526b.
2900-0743 (VA Form 21-526c)--Service members filing claims
under the Benefits Delivery at Discharge or Quick Start programs under
Title 38 U.S.C. 5101(a) may continue to use VA Form 21-526c for
disability compensation benefits.
2900-0002 (VA Form 21-527)--Veterans who are reapplying
for VA pension benefits or previously applied for VA compensation
benefits and are now applying for VA pension benefits may continue to
use VA Form 21-527.
2900-0004 (VA Form 21-534 and 21-534a)--Claimants such as
surviving spouses and children filing for dependency and indemnity
compensation (DIC), death pension, accrued benefits, and death
compensation claims may continue to use VA Form 21-534. Military
Casualty Assistance Officers who are assisting surviving spouses and
children in filing claims for death benefits may continue to use VA
Form 21-534a.
2900-0005 (VA Form 21-535)--Claimants who are filing for
benefits subsequent to the death of the veteran may continue to use VA
Form 21-535.
2900-0747 (VA Forms 21-526EZ, 21-527EZ, and 21-534EZ)--
Veterans or claimants who are filing for disability compensation,
pension, dependency and indemnity compensation, death pension, accrued
benefits and death compensation claims and other benefits such an
ancillary benefit claims and entitlement to 38 U.S.C. 1151 benefits
[[Page 57688]]
that filed for processing in both the traditional claims system or in
the expedited claims processing system known as the Fully Developed
Claims program may continue to use VA Form 21-526EZ for disability
compensation; VA Form 21-527EZ for non-service connected pension
benefits; and VA Form 21-534EZ for dependency and indemnity
compensation, death pension, and/or accrued benefits.
2900-0572 (VA Form 21-0304)--Claimants who are filing for
the monetary allowance and payment for a child with spina bifida who is
the natural child of a veteran who served in the Republic of Vietnam
during the Vietnam era and for a child with certain birth defects who
is the natural child of a female veteran who served in the Republic of
Vietnam during the Vietnam era may continue to use VA Form 21-0304.
2900-0721 (VA Form 21-2680)--Claimants who are filing for
eligibility for the aid and attendance and/or household benefit may
continue to use VA Form 21-2680.
2900-0067 (VA Form 21-4502)--Veterans or servicepersons
who are filing for entitlement to an automobile allowance and adaptive
equipment may continue to use VA Form 21-4502.
2900-0390 (VA Form 21-8924)--Certain surviving spouses and
children of veterans who died in service prior to August 13, 1981 or
who died as a result of a service-connected disability incurred or
aggravated prior to August 13, 1981 under the Restored Entitlement
Program for Survivors (REPS) program may continue to use VA Form 21-
8924.
2900-0404 (VA Form 21-8940)--Claimants who file for
individual unemployability benefits for service-connected
disability(ies) which result in an inability to secure or follow
substantially gainful occupation may continue to use VA Form 21-8940.
2900-0132 (VA Form 26-4555)--Disabled veterans or
servicemembers who file for Specially Adapted Housing (SAH) or Special
Housing Adaptations (SHA) benefits may continue to use VA Form 26-4555.
Estimated frequency of responses:
2900-0791 (VA Form 21-0958)--One time for most claimants;
however, the frequency of responses is also dependent on the number of
appeals submitted on this form by the claimant as VA does not limit the
number of appeals that a claimant can submit.
2900-0001 (VA Form 21-526 and 21-526b)--One time for most
beneficiaries; however, the frequency of responses is also dependent on
the number of claims submitted on this form by the claimant as VA does
not limit the number of claims that a claimant can submit.
2900-0743 (VA Form 21-526c)--One time for most
beneficiaries; however, the frequency of responses is also dependent on
the number of claims submitted on this form by the claimant as VA does
not limit the number of claims that a claimant can submit.
2900-0002 (VA Form 21-527)--One time for most
beneficiaries; however, the frequency of responses is also dependent on
the number of claims submitted on this form by the claimant as VA does
not limit the number of claims that a claimant can submit.
2900-0004 (VA Form 21-534 and 21-534a)--One time for most
beneficiaries.
2900-0005 (VA Form 21-535)--One time for most
beneficiaries.
2900-0747 (VA Forms 21-526EZ, 21-527EZ, and 21-534EZ)--One
time for most beneficiaries; however, the frequency of responses is
also dependent on the number of claims submitted on this form by the
claimant as VA does not limit the number of claims that a claimant can
submit.
2900-0572 (VA Form 21-0304)--One time for most
beneficiaries.
2900-0721 (VA Form 21-2680)--One time for most
beneficiaries.
2900-0067 (VA Form 21-4502)--One time for most
beneficiaries.
2900-0390 (VA Form 21-8924)--One time for most
beneficiaries.
2900-0404 (VA Form 21-8940)--One time for most
beneficiaries.
2900-0132 (VA Form 26-4555)--One time for most
beneficiaries.
Estimated average burden per response: There is no substantive
change in the estimated average burden per response for the following
affected OMB-approved Control Numbers:
2900-0791 (VA Form 21-0958)--30 minutes.
2900-0001 (VA Form 21-526 and 21-526b)--VA Form 21-526--1
hour; and VA Form 21-526b--15 minutes; and VA Form 21-4142--5 minutes.
2900-0743 (VA Form 21-526c)--15 minutes.
2900-0002 (VA Form 21-527)--1 hour.
2900-0004 (VA Form 21-534 and 21-534a)--VA Form 21-534--1
hour and 15 minutes and VA Form 534a--15 minutes.
2900-0005 (VA Form 21-535)--1 hour and 12 minutes.
2900-0747 (VA Forms 21-526EZ, 21-527EZ, and 21-534EZ)--VA
Form 21-526EZ--25 minutes; VA Form 21-527EZ--25 minutes; and VA Form
21-534EZ--25 minutes.
2900-0572 (VA Form 21-0304)--10 minutes.
2900-0721 (VA Form 21-2680)--30 minutes.
2900-0067 (VA Form 21-4502)--15 minutes.
2900-0390 (VA Form 21-8924)--20 minutes.
2900-0404 (VA Form 21-8940)--45 minutes.
2900-0132 (VA Form 26-4555)--10 minutes.
Estimated number of respondents: VA anticipates the annual
estimated numbers of respondents for each of the OMB-approved forms as
follows:
2900-0791 (VA Form 21-0958)--144,000 per year as
previously estimated in ICR Reference No. 201206-2900-001 and as
published in the Federal Register, 77 FR 42556 on July 19, 2012 and 77
FR 60027 on October 1, 2012.
2900-0001 (VA Form 21-526 and 21-526b)--304,325 per year,
based on 5-year estimated average of formal and informal initial
compensation and pension claims received annually at 83,855 and formal
and informal new or reopened compensation claims received annually at
217,178, in addition to the historically reported annual estimated
number of responses for VA Form 21-4142 at 3,292.
2900-0743 (VA Form 21-526c)--161,000 per year as
previously estimated in ICR Reference No. 201209-2900-010 and as
published in the Federal Register, 77 FR 190, on October 1, 2012 and 77
FR 240 on December 13, 2012.
2900-0002 (VA Form 21-527)--17,111 per year, based on a 5-
year estimated average of 12,253 reopened pension claims received on VA
Form 21-527 in addition to an estimated number of 4,858 expected to be
received for informal reopened pension claims.
2900-0004 (VA Form 21-534 and 21-534a)--33,864 per year,
based on a 5-year estimated average of 32,438 formal and informal death
benefits claims filed by surviving spouses/child in addition to a 5-
year estimated number of 1,426 formal and informal death benefits
claims filed by surviving spouses/child for in-service death.
2900-0005 (VA Form 21-535)--1,783 per year, based on a 5-
year estimated average of 1,046 formal death benefits filed by parents
in addition to an expected estimated number of informal death benefit
claims at 737.
2900-0747 (VA Forms 21-526EZ, 21-527EZ, and 21-534EZ)--
1,048,652 per year, based on: (a) An estimated number of both formal
and informal--initial, new, reopened compensation claims at 835,910;
plus (b) an estimated number of both formal and informal pension claims
at 101,086; (c) an
[[Page 57689]]
estimated number of both formal and informal death benefit claims at
111,656, all of which total 1,048,652.
VA expanded a modified version of a pilot study, known as the
Express Claim Program, for which VA Forms 21-526EZ and 21-527EZ were
used. Therefore, the number of claimants expected to respond was
estimated at 104,440. These EZ forms contain the section 5103
notification for disability, pension, and now death benefits in paper
and electronic format. The electronic application uses the EZ form in
its question prompts and generates this form upon completion of the
interview process.
While this rule does not attach unique effective date consequences
to utilizing the electronic claim process, as the proposed rule would
have, VA still expects a substantial increase in the number of
respondents for this particular Control Number. As one commenter
pointed out, the fact that VA is able to decide a claim more quickly
when the claimant files an electronic application form provides
claimants an incentive to utilize the electronic process. Additionally,
the intent to file a claim process that we establish in this final rule
will greatly increase the role of standard application forms because VA
will provide claimants with the required standard application form upon
receiving an intent to file a claim. VA will typically provide EZ forms
in this purpose. This intent to file a claim process will apply to
types of claims for which no standard form of any kind is currently
required, such as claims governed by current Sec. 3.155(c).
2900-0572 (VA Form 21-0304)--430 per year.
2900-0721 (VA Form 21-2680)--14,000 per year.
2900-0067 (VA Form 21-4502)--1,552 per year.
2900-0390 (VA Form 21-8924)--1,800 per year.
2900-0404 (VA Form 21-8940)--24,000 per year.
2900-0132 (VA Form 26-4555)--4,158 per year.
OMB Control Numbers 2900-0572, 2900-0721, 2900-0067, 2900-0390,
2900-0404, and 2900-0132 are collections of information for particular
benefits such as automobile allowance, housing adaptation, individual
unemployability, etc., which are currently required by the VA in order
for these claims to be processed and adjudicated. Since VA requires
these forms to be submitted for filing of a particular benefit, VA does
not expect an increase in the annual likely number of respondents. In
addition, VA is not changing the substance of the collection of
information on these OMB-approved collections of information nor is it
increasing the respondent burden. We are including these collections of
information in this rulemaking because it is relevant to the rulemaking
but is not directly altered by it.
Estimated total annual reporting and recordkeeping burden:
2900-0791 (VA Form 21-0958)--Annual burden continues to be
72,000 hours. The total estimated cost to respondents continues to be
$1,080,000 (72,000 hours x $15/hour). This submission does not involve
any recordkeeping costs.
2900-0001 (VA Form 21-526 and 21-526b)--For VA Form 21-
526, the annual burden is 83,855 hours. The total estimated cost to
respondents is $1,257,825 (83,855 hours x $15/hour). This submission
does not involve any recordkeeping costs. For VA Form 21-526b, the
annual burden is 54,295 hours. The total estimated cost to respondents
is $81,443 (54,295 hours x $15/hour). This submission does not involve
any recordkeeping costs. For VA Form 21-4142, the annual burden is 263
hours. The total estimated cost to respondents is $330 (263 hours x
$15/hour). This submission does not involve any recordkeeping costs.
2900-0743 (VA Form 21-526c)--Annual burden continues to be
40,250 hours. The total estimated cost to respondents continues to be
$603,750 (40,250 hours x $15/hour). This submission does not involve
any recordkeeping costs.
2900-0002 (VA Form 21-527)--Annual burden is 17,111 hours.
The total estimated cost to respondents is $256,665 (17,111 hours x
$15/hour). This submission does not involve any recordkeeping costs.
2900-0004 (VA Form 21-534 and 21-534a)--For VA Form 21-
534, the annual burden is 40,548 hours. The total estimated cost to
respondents is $608,220 (40,548 hours x $15/hour). This submission does
not involve any recordkeeping costs. For VA Form 21-534a, the annual
burden is 357 hours. The total estimated cost to respondents is $5,355
(3,57 hours x $15/hour). This submission does not involve any
recordkeeping costs.
2900-0005 (VA Form 21-535)--Annual burden is 2,140 hours.
The total estimated cost to respondents is $32,100 (2,140 hours x $15/
hour). This submission does not involve any recordkeeping costs.
2900-0747 (VA Forms 21-526EZ, 21-527EZ, and 21-534EZ)--For
VA Form 21-526EZ, the annual burden is 348,296 hours. The total
estimated cost to respondents is $55,224,440 (348,296 hours x $15/
hour). This submission does not involve any recordkeeping costs. For VA
Form 21-527EZ, the annual burden is 42,119 hours. The total estimated
cost to respondents is $631,785 (42,119 hours x $15/hour). This
submission does not involve any recordkeeping costs. For VA Form 21-
534EZ, the annual burden is 46,523 hours. The total estimated cost to
respondents is $697,845 (46,523 hours x $15/hour). This submission does
not involve any recordkeeping costs.
2900-0572 (VA Form 21-0304)--Annual burden continues to be
72 hours. The total estimated cost to respondents continues to be
$1,080 (72 hours x $15/hour). This submission does not involve any
recordkeeping costs.
2900-0721 (VA Form 21-2680)--Annual burden continues to be
7,000 hours. The total estimated cost to respondents continues to be
$105,000 (7,000 hours x $15/hour). This submission does not involve any
recordkeeping costs.
2900-0067 (VA Form 21-4502)--Annual burden continues to be
388 hours. The total estimated cost to respondents continues to be
$5,820 (388 hours x $15/hour). This submission does not involve any
recordkeeping costs.
2900-0390 (VA Form 21-8924)--Annual burden continues to be
600 hours. The total estimated cost to respondents to be $9,000 (600
hours x $15/hour). This submission does not involve any recordkeeping
costs.
2900-0404 (VA Form 21-8940)--Annual burden continues to be
18,000 hours. The total estimated cost to respondents continues to be
$270,000 (18,000 hours x $15/hour). This submission does not involve
any recordkeeping costs.
2900-0132 (VA Form 26-4555)--Annual burden continues to be
693 hours. The total estimated cost to respondents continues to be
$10,395 (693 hours x $15/hour). This submission does not involve any
recordkeeping costs.
This rulemaking is mandating the use of existing VA forms in the
processing and adjudication of claims and appeals. These amendments to
Sec. Sec. 3.154, 3.155, 3.403, 3.660, 3.665, 3.666, 3.701, 3.812, and
20.201 affect the estimated annual number of respondents and
consequently, the estimated total annual reporting and recordkeeping
burden but do not otherwise affect the existing collections of
information that have already been approved by the Office of Management
and Budget (OMB). The use of information, description of likely
respondents, estimated frequency of
[[Page 57690]]
responses, estimated average burden per response will remain unchanged
for these forms. While there is no substantive change in the
aforementioned collection of information for these amendments, VA
foresees a change in the quantity of information collected and the
total annual reporting for certain currently approved OMB control
numbers on account of this rulemaking.
VA's Collection of Data:
Other than for original claims and certain ancillary benefits, VA
historically and currently accepts claims for benefits in any format
submitted, whether on a prescribed form or not. VA has never
standardized the use of forms for claims or appeals processing \1\. VA
maintains a record of the number of types of benefit claims received
annually based on claim types such as original claims, claims for
increase or to reopen a previously denied claim, claims for ancillary
benefits, pension, and death benefits which have been submitted on the
appropriate prescribed form. However, reliance on claim types based on
the form submitted may not accurately capture the number of claims
received. For instance, one claim type can be filed using more than one
prescribed form and a claimant can file two types of claim such as a
claim for increase and a claim to reopen on one prescribed VA form
which will be categorized as one claim type received, i.e., recorded as
either a claim for increase or a claim to reopen. For informal claims,
VA has not quantified the number of informal claims received, but it
quantifies the particular claim type filed in the informal claim such
as original, increase, new, reopen, etc. As a result of this rulemaking
requiring the use of prescribed forms for all claims for benefits, VA
will be able to gather and collect the data quantifying the number of
prescribed forms in the future which will provide VA with a more
accurate account of how many respondents will respond on various VA
prescribed forms.
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\1\ Currently, VA accepts any claim filed subsequent to the
original, initial compensation/pension claim that is submitted in
any form, i.e., informal claim to initiate the claims process. For
example, a claim for increase or reopen, which currently is not
required to be submitted on a prescribed form, can be established
using different VA forms such as VA Form 21-526 Veteran's
Application for Compensation and/or Pension; VA Form 21-526EZ,
Application for Disability Compensation or Related Compensation; VA
Form 21-526b, Veteran's Supplemental Claim for Compensation; or VA
Form 21-4138, Statement in Support of Claim.
---------------------------------------------------------------------------
Electronic Claims:
Due to the fact that there is no current data enumerating the total
number of different types of VA forms received annually, we have
projected the annual number of respondents for the forms based on the
estimated number of types of claims received annually over a 5-year
period. We have also approximated the number of electronic claims
received for compensation, pension, and death claims. Currently, VA's
electronic claims processing system, i.e., eBenefits and Veterans
Online Applications (VONAPP), uses VA Form 21-526EZ for disability
compensation claims submitted electronically. VA is also in the process
of adding other VA forms to VONAPP such as VA Form 21-527EZ and 21-
534EZ (hereinafter ``EZ forms'' will be used to refer to VA Forms 21-
526EZ, 21-527EZ, and 21-534EZ, collectively). VA also provides these EZ
forms to claimants who wish to submit their claims on paper because
these forms expedite the claims process by: (a) Offering the claimant a
choice for either the expedited process of ``Fully Developed Claims''
or the traditional claims process; (b) listing more detailed questions
for a variety of benefits sought in order to capture thoroughly the
specifics of a claim; and (c) providing claimants with the required
notice of VA's duty to assist the claimant pursuant to 38 U.S.C. 5103,
which is issued at the time the claimant files a claim instead of when
the VA receives the claim. The use of these EZ forms ultimately speeds
up the claims process and ensures faster delivery of benefits to
claimants; therefore, VA has encouraged, directed, and provided these
EZ forms to claimants who wish to file benefit claims.
With the ease and efficiency of completing and filing electronic
claims through VA's Web-based electronic claims application system, VA
expects the number of electronic claims to increase. Additionally, VA
expects the number of EZ forms to increase even in cases where the
claimant opts not to use the electronic process, because VA will
typically provide an EZ form in response to an intent to file a claim.
Because eBenefits and VONAPP uses (and will continue to use) the EZ
forms, we anticipate that the total number of annual responses received
on the EZ forms electronically for all benefits will increase by at
least 29 percent while the total number of annual response received on
VA Forms 21-526, 21-526b, 21-527, 21-534, 21-534a, and 21-535
(``traditional forms'') will decrease. Based on data from Fiscal Year
(FY) October 2010 through September 2011, the number of compensation
disability claims received electronically was 142,899 and the number of
total compensation disability and dependency claims received
electronically was 496,851. Thus, the percentage of compensation
disability electronic claims received was 29 percent. With VA's
outreach and efforts to promote the electronic claims processing system
and with future implementation of pension, death, and appeals
electronic claims processing, VA estimates an increase of the
submission of electronic claims by at least 29 percent based upon the
FY 2010 through 2011 data. Since the trend is to direct claimants to
submit claims on EZ forms both electronically and on paper, we
approximate that 70 percent of claims will be submitted on the EZ form
while 30 percent will be submitted on the traditional forms.
Informal Claims:
The data used in formulating the estimated number of annual
responses to the various affected prescribed forms was extrapolated
from data recorded for the number of types of claims received annually
for FY April 2009 through April 2013. This data is not sufficiently
granular to provide the number of informal claims received given that
the data only depicts the number of initial, new or reopened
compensation and pension claims received and the number of initial
death benefit claims received. Since informal claims may or may not be
submitted on a prescribed form, there is no method for accurately
recording or quantifying the total number of informal claims received
or inferred annually. Therefore, we approximate that for compensation,
pension, and death benefits, 50 percent of each of these benefits are
informal claims. Thus, based on the data of an average of claims
received over a 5-year period, we expect that the total number of
informal claims for compensation, pension, and death benefits that will
be submitted on a prescribed form will increase by at least 50 percent.
Notices of Disagreement:
Previously, VA estimated that the annual number of respondents
submitting the currently approved collection instrument, VA Form 21-
0958, Notice of Disagreement, (OMB Control Number 2900-0791) would be
144,000, based on VA historically receiving 12 Notices of Disagreement
per 100 completed VBA decisions, with more than 1.2 million VBA
decisions in FY 2012. According to data for FY 2009 to FY 2012, the
average number of Notices of Disagreement received annually was
129,539. For FY 2013, it is projected that VA will receive 126,735
Notices of Disagreement. The estimate associated with the currently
approved collection was based upon the
[[Page 57691]]
assumption that all notices of disagreement would be submitted on this
collection instrument, though that is not necessarily the case under
current rules. As a result of this rulemaking, however, the
overwhelming majority of notices of disagreement would in fact be
submitted on this collection instrument, since this rulemaking is
requiring that all notices of disagreement be submitted on VA Form 21-
0958 in cases where that form is provided. Accordingly, while VA does
expect to receive many more completed Forms 21-0958, there is no
expected increase in the annual number of respondents nor an increased
burden on respondents from that reflected in currently approved
collections.
In addition, VA is amending the instructions which accompany VA
Form 21-0958 to alter the current language from ``not mandatory'' to
provide that VA Form 21-0958 will be required to initiate an appeal
from a decision on compensation claims. We have also provided
notification to claimants that only the issues listed on VA Form 21-
0958 will be considered on appeal but that the claimant retains the
right to appeal unnamed issues or contentions within 1 year from the
date of the decision notification letter. Moreover, we have added a
separate section in the instructions to provide claimants with the
criteria for a complete NOD form which conforms with the final
regulatory language in Sec. 19.24(b)(2) which enumerates the
requirements for a complete NOD, namely that the form must contain:
information to identify the claimant; information to identify the
specific nature of the disagreement; and claimant's signature. In order
to further assist claimants in submitting a complete NOD, we have
provided samples for clarification of what is minimally necessary to
identify the specific nature of the disagreement. We note that one of
the public commenters questioned VA's motive behind inquiring whether
claimants would like direct communication with the AOJ regarding the
appeal. In response, we have amended the instructions to provide that
claimants would have the option of being contacted by telephone in
order for VA to request clarification from claimants if there was any
ambiguous information which may hinder expeditious processing of the
NOD. While we have amended the instructions to VA Form 21-0958 to
conform to the final rule and to give notice to claimants of the
requirements of the amended appeals regulations, we did not change,
amend, or alter VA Form 21-0958. Therefore, we do not foresee any
additional burden to the claimant in completing this form.
Methodology for Estimated Annual Number of Respondents for Affected
Forms:
We have formulated the estimated total of annual responses for
compensation, pension, and death benefit claims by increasing the
expected number of total claims submitted on paper by 50 percent from
data extrapolated for claims received annually over a 5-year period. We
project that 30 percent of compensation, pension, and death benefit
claims will be submitted on traditional forms whereas 70 percent will
be submitted on EZ forms. Accordingly, VA expects a decrease in the
total estimated number of annual responses for VA Forms 21-526, 21-527,
21-534, 21-534a, and 21-535 whereas the total estimated number of
annual responses for VA Forms 21-526EZ, 21-527EZ, and 21-534EZ have
increased substantially. The projected numbers for each affected form
are provided in further detail in the above section, ``Estimated number
of respondents,'' according to each OMB Control Number.
II. New Information Collection
The information collection described in this section was not
previously discussed in the proposed rule. Comments on the collection
of information contained in this section should be submitted to the
Office of Management and Budget, Attention: Desk Officer for the
Department of Veterans Affairs, Office of Information and Regulatory
Affairs, Washington, DC 20503 or emailed to
[email protected], with copies sent by mail or hand
delivery to the Director, Regulations Management (02REG), Department of
Veterans Affairs, 810 Vermont Avenue NW., Room 1068, Washington, DC
20420; fax to (202) 273-9026; or submitted through www.Regulations.gov.
Comments should indicate that they are submitted in response to ``RIN
2900-AO81-- Standard Claims and Appeals Forms.'' Notice of OMB approval
for this information collection will be published in a future Federal
Register document.
The Department considers comments by the public on proposed
collections of information in:
Evaluation whether the proposed collections of information
are necessary for the proper performance of the functions of the
Department, including whether the information will have practical
utility;
Evaluating the accuracy of the Department's estimate of
the burden of the proposed collections of information, including the
validity of the methodology and assumptions used;
Enhancing the quality, usefulness, and clarity of the
information to be collected; and
Minimizing the burden of the collections of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of responses.
This final rule will impose the following new information
collection requirements in standardizing the current informal claim
process in 38 CFR 3.155 by requiring a standard form to be used to
establish a claimant's intention to file a claim for VA benefits. As
required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), VA
has submitted this information amendment to OMB for its review and for
approval 180-days after the date this rule is published in the Federal
Register as a final rule. On October 31, 2013, VA published in the
Federal Register (78 FR 65490) a proposed rule to amend its
adjudication regulations and rules of practice of the Board of
Veterans' Appeals (Board) to standardize the claims and appeals process
by requiring the use of VA forms to file a claim and to initiate an
appeal. The proposed rule attempted to address the issue that current
non-standard submissions from claimants including submission requiring
VA to take action are not received in a standard format. Non-standard
submissions from claimants meant increased time spent determining
whether a claim has been filed, identifying the benefit claimed,
sending letters to the claimant and awaiting a response, and requesting
and awaiting a response, and requesting and awaiting receipt of
evidence. These steps all significantly delay the adjudication and
delivery of benefits to veterans and their families. By standardizing
the claims process through the use of standard forms, VA would be able
to more easily identify issues and contentions associated with claims
that are filed, resulting in greater accuracy, efficiency, and speed in
the processing and adjudication of claims. Therefore, the proposed rule
proposed to amend VA's current adjudication regulations to standardize
the claims process by eliminating the informal claim, i.e., the non-
standard submission of a claimant's claim or intent to file a claim, by
requiring claimants to submit a VA-prescribed form or application to
apply for benefits.
[[Page 57692]]
While the current informal claim establishes a date of claim (in
the case of an original claim, a complete application that is submitted
on a standard form must be filed within 1 year of the filing of the
informal claim), the proposed rule eliminated the informal claim
process and established that a complete claim submitted in the standard
paper form would establish the date of claim. However, for electronic
claims, VA would establish the date of claim based on the date when the
claimant saved an incomplete electronic application without submitting
it for processing. Claimants would have 1 year to submit the completed
electronic application in order to preserve the date claimant saved the
application as the date of claim. The result of the proposed rule would
have allowed a favorable effective date treatment for electronic claims
only. The purpose of the distinction between electronic and non-
electronic claim submission with regard to effective date treatment was
to incentivize claimants to file electronic claims, which are processed
by VA more efficiently and result in more expeditious delivery of
benefits to claimants.
Based upon the concerns and issues raised by the public commenters
on the proposed rule, particularly, regarding the dissimilar treatment
of effective dates for electronic and non-electronic claims submissions
and its impact on claimants, VA determined that modernization and
standardization of the claims process could also be achieved by
formalizing and standardizing the current informal claims process while
retaining favorable effective date treatment for claimants filing in
paper form. In response, VA revised the proposed regulation of Sec.
3.155 in this final rule to replace the concept and term ``informal
claim'' with the concept and term ``intent to file a claim for
benefits.'' In revised final Sec. 3.155, claimants can submit an
intent to file a claim for benefits on the prescribed VA form
designated for this purpose to establish a date of claim if the
claimant files a complete claim within 1 year of submitting the intent
to file a claim. VA considers the concept of the intent to file a claim
for benefits in revised Sec. 3.155 to be a logical outgrowth of VA's
goal of standardizing the claims process through the use of forms as
outlined in the published proposed rule. Moreover, this concept
provides the most optimal solution to the concerns regarding the
proposed rule that were raised by the commenters while still
standardizing and modernizing the VA claims process.
In order to implement this intent to file a claim process, VA
created a new form, VA Form 21-0966, Intent to File a Claim for
Compensation and/or Pension, Survivors Pension, or Other Benefits, to
be used for this purpose. This process is a reconciliation of VA's need
for claims to originate on standard forms and commenters' desire for
ways to establish an effective date while a complete claim on an
application form is completed. Accordingly, it did not exist at the
time of the publication of the proposed rule and as the new intent to
file process is being codified in this final rule, VA is submitting
this new collection of information specifically used for the intent to
file process for OMB approval and for public comment in this final
rule.
The new VA Form 21-0966 will be used to establish a date of claim
if a complete claim is filed within 1 year of receipt of this form for
all claims whether initial or supplemental. VA notes that a claimant
can also submit an intent to file a claim for benefits by contacting VA
personnel in field offices by telephone or in person. VA personnel will
document the intent to file on VA Form 21-0966. A filled out form will
be uploaded into VA's internal business and operational programs so
that VA personnel will be able to refer to this document in order
assign the appropriate effective date for any award granted. Therefore,
this newly proposed VA Form 21-0966, will enable VA to document a
claimant's intent to file a claim which will greatly enhance VA's
standardization of the claims process through the use of VA-prescribed
forms.
Claimants can also submit an intent to file a claim via
electronically in VA's claims submission tool within its Web-based
electronic claims application system by entering biographical data and
saving the electronic application without submitting it for processing.
Therefore, there is no separate electronic ``intent to file a claim''
form; the act of entering information and saving the electronic
application will serve as the intent to file a claim for benefits.
Title: Intent to File a Claim
Summary of collection of information: The Department of Veterans
Affairs (VA) through its Veterans Benefits Administration (VBA)
administers an integrated program of benefits and services, established
by law, for veterans, service personnel, and their dependents and/or
beneficiaries. Title 38 U.S.C. 5101(a) provides that a specific claim
in the form provided by the Secretary must be filed in order for
benefits to be paid to any individual under the laws administered by
the Secretary. The amended collection of information in the final rule
38 CFR 3.155 would require claimants and/or their authorized
representatives to submit a VA-prescribed form in either paper or
electronic submission, where applicable, to express a claimant's intent
to file a claim for benefits in order to establish an effective date
placeholder for any award granted if the claimant files a complete
claim within 1 year of receipt of the intent to file a claim. VA
proposes to create a new form, VA Form 21-0966, Intent to File a Claim
for Compensation and/or Pension, Survivors Pension, or Other Benefits.
Claimants and their representatives can submit their intent to file a
claim in three ways: (1) On paper using VA's newly created, proposed VA
Form 21-0966, Intent to File a Claim for Compensation and/or Pension,
Survivors Pension, or Other Benefits; (2) electronically through a
claims submission tool within a VA Web-based electronic claims
application system; or, (3) by telephone contact with designated VA
personnel who will record the intent to file a claim on the proposed VA
Form 21-0966, Intent to File a Claim for Compensation and/or Pension,
Survivors Pension, or Other Benefits.
Description of need for information and proposed use of
information: This form will be used by claimants and/or their
authorized representatives to indicate an intent to file a claim for
compensation and/or disability benefits to establish an effective date
for an award granted in association with a complete claim filed within
1 year of such form. This form collects biographical information of the
claimant such as name; Social Security Number; service number, if
applicable; date of birth; gender; VA claim number, if applicable;
current mailing address; forwarding address; telephone number(s); email
address(es); and signature. The collection of information also requests
claimants to indicate what type of claim for benefits, i.e.,
compensation and/or pension, the claimant intends to file. VA will use
this form to identify claimants in its internal business operational
systems to record the date of receipt of this document for the purposes
of establishing a date of claim for a complete claim that is filed
within 1 year. VA also uses the information to furnish the claimant
with the appropriate VA form or application for compensation and
pension benefits.
Description of likely respondents: Veterans, claimants, and/or
authorized representatives who indicate an intent
[[Page 57693]]
to file a claim for disability compensation and/or pension benefits.
Estimated frequency of responses: One time for most beneficiaries;
however, the frequency of responses is also dependent on the number of
intents to file a claim submitted by the claimant. VA does not limit
the number of submissions of the intent to file a claim for benefits,
except that VA will accept only one intent to file a claim per complete
claim filed.
Estimated average burden per response: VA estimates an average of
15 minutes to gather information and complete the new, proposed VA Form
21-0966, Intent to File a Claim for Compensation, and/or Pension,
Survivors Pension, or Other Benefits.
Estimated number of respondents: VA anticipates the annual
estimated number of respondents to be 724,561 per year, the sum of
which is based on 5-year estimated average of: 41,928 formal and
informal initial compensation and pension claims received annually and
108,589 formal and informal new or reopened compensation claims
received annually; 6,127 formal reopened pension claims received
annually and 2,429 informal reopened pension claims expected to be
received annually; 16,219 formal and informal death benefits claimed
filed by surviving spouses/child received annually and 713 formal and
informal death benefits claims filed by surviving spouses/child for in-
service death received annually; 523 formal death benefits filed by
parents received annually and 737 expected informal death benefits
claims filed by parents received annually; 417,955 formal and informal,
initial, new, reopened compensation claims received annually plus
50,543 formal and informal pension claims received annually plus 55,828
formal and informal death benefits claims received annually; 215 claims
for monetary allowance and payment for a child with spina bifida who is
a natural child of a veteran having served in the Republic of Vietnam
during the Vietnam era; 7,000 claims for aid and attendance and/or
household benefits; 776 claims for automobile and adaptive equipment
allowance; 900 claims for benefits under the Restored Entitlement
Program for Survivors program; 12,000 claims for individual
unemployability benefits; and 2,079 claims for Specially Adapted
Housing or Special Housing Adaptation benefits.
Estimated total annual reporting and recordkeeping burden: The
annual burden is 181,140 hours. The total estimated cost to respondents
is $2,717,100 (181,140 hours x $15/hour). This submission does not
involve any recordkeeping costs.
Methodology for Estimated Annual Number of Respondents for Proposed
Collection of Information on VA Form 21-0966, Intent to File a Claim
for Compensation and/or Pension Benefits:
Using the data as reported in the proposed rule, we estimate that
at least 50 percent of all claims, which would have been filed
informally, will be filed in conjunction with the intent to file a
claim form. Therefore, we have multiplied the expected number of total
claims submitted on paper by 50 percent from data extrapolated for
claims received annually over a 5-year period to calculate the
estimated number of intent to claim form. An itemization of the
projected numbers for an intent to file a claim form in association
with each approved OMB form is provided in further detail in the above
section, ``Estimated number of respondents.''
VA's Collection of Data:
Other than for original claims and certain ancillary benefits, VA
historically and currently accepts claims for benefits in any format
submitted, whether on a prescribed form or not. VA has never
standardized the use of forms for claims or appeals processing \2\. VA
maintains a record of the number of types of benefit claims received
annually based on claim types such as original claims, claims for
increase or to reopen a previously denied claim, claims for ancillary
benefits, pension, and death benefits which have been submitted on the
appropriate prescribed form. However, reliance on claim types based on
the form submitted may not accurately capture the number of claims
received. For instance, one claim type can be filed using more than one
prescribed form and a claimant can file two types of claim such as a
claim for increase and a claim to reopen on one prescribed VA form
which will be categorized as one claim type received, i.e., recorded as
either a claim for increase or a claim to reopen. For informal claims,
VA has not quantified the number of informal claims received, but it
quantifies the particular claim type filed in the informal claim such
as original, increase, new, reopen, etc. As a result of this rulemaking
requiring the use of prescribed forms for all claims for benefits, VA
will be able to gather and collect the data quantifying the number of
prescribed forms in the future which will provide VA with a more
accurate account of how many respondents will respond on various VA
prescribed forms.
---------------------------------------------------------------------------
\2\ Currently, VA accepts any claim filed subsequent to the
original, initial compensation/pension claim that is submitted in
any form, i.e., informal claim to initiate the claims process. For
example, a claim for increase or reopen, which currently is not
required to be submitted on a prescribed form, can be established
using different VA forms such as VA Form 21-526 Veteran's
Application for Compensation and/or Pension; VA Form 21-526EZ,
Application for Disability Compensation or Related Compensation; VA
Form 21-526b, Veteran's Supplemental Claim for Compensation; or VA
Form 21-4138, Statement in Support of Claim.
---------------------------------------------------------------------------
VA is replacing ``informal claims'' with ``intent to file a claim''
and is requiring the submission of complete claim in revised Sec.
3.155 as a placeholder for a potential earlier effective date. Since
eBenefits and VONAPP uses (and will continue to use) the EZ forms, we
anticipate that the total number of annual responses received on the EZ
forms electronically for all benefits will increase by at least 29
percent while the total number of annual response received on VA Forms
21-526, 21-526b, 21-527, 21-534, 21-534a, and 21-535 (``traditional
forms'') will decrease. Based on data from Fiscal Year (FY) October
2010 through September 2011, the number of compensation disability
claims received electronically was 142,899 and the number of total
compensation disability and dependency claims received electronically
was 496,851. Thus, the percentage of compensation disability electronic
claims received was 29 percent. With VA's outreach and efforts to
promote the electronic claims processing system and with future
implementation of pension, death, and appeals electronic claims
processing, VA estimates an increase of the submission of electronic
claims by at least 29 percent based upon the FY 2010 through 2011 data.
Since the trend is to direct claimants to submit claims on EZ forms
both electronically and on paper, we approximate that 70 percent of
claims will be submitted on the EZ form while 30 percent will be
submitted on the traditional forms.
The data used in formulating the estimated number of annual
responses to the various affected prescribed forms was extrapolated
from data recorded for the number of types of claims received annually
for FY April 2009 through April 2013. This data is not sufficiently
granular to provide the number of informal claims received given that
the data only depicts the number of initial, new or reopened
compensation and pension claims received and the number of initial
death benefit claims received. Since informal claims may or may not be
submitted on a prescribed form, there is no method for accurately
recording or quantifying the total number of informal claims received
or inferred annually.
[[Page 57694]]
Therefore, we approximate that for compensation, pension, and death
benefits, 50 percent of each of these benefits are informal claims.
Thus, based on the data of an average of claims received over a 5-year
period, we expect that the total number of informal claims for
compensation, pension, and death benefits that will be submitted on a
prescribed form will increase by at least 50 percent. This estimate is
used to calculate the estimated expected number of intent to file a
claim forms.
Regulatory Flexibility Act
The Secretary hereby certifies that these regulatory amendments
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. These amendments would not directly affect any small
entities. Only VA beneficiaries and their survivors could be directly
affected. Therefore, pursuant to 5 U.S.C. 605(b), these amendments are
exempt from the initial and final regulatory flexibility analysis
requirements of sections 603 and 604.
Executive Orders 12866 and 13563
Executive Orders 12866 and 13563 direct agencies to assess the
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 effects, and other advantages; distributive impacts;
and equity). Executive Order 13563 (Improving Regulation and Regulatory
Review) emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
Executive Order 12866 (Regulatory Planning and Review) defines a
``significant regulatory action,'' which requires review by OMB, 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 this Executive
Order.''
The economic, interagency, budgetary, legal, and policy
implications of this regulatory action have been examined, and it has
been determined to be a significant regulatory action under Executive
Order 12866.
VA's impact analysis can be found as a supporting document at
http://www.regulations.gov, usually within 48 hours after the
rulemaking document is published. Additionally, a copy of the
rulemaking and its impact analysis are available on VA's Web site at
http://www1.va.gov/orpm/, by following the link for ``VA Regulations
Published.''
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.
Catalog of Federal Domestic Assistance Numbers and Titles
The Catalog of Federal Domestic Assistance program numbers and
titles for this rule 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.
Signing Authority
The Acting Secretary of Veterans Affairs, or designee, approved
this document and authorized the undersigned to sign and submit the
document to the Office of the Federal Register for publication
electronically as an official document of the Department of Veterans
Affairs. Sloan D. Gibson, Acting Secretary, Department of Veterans
Affairs, approved this document on July 30, 2014, for publication.
List of Subjects
38 CFR Part 3
Administrative practice and procedure, Claims, Disability benefits,
Health care, Pensions, Radioactive materials, Veterans, Vietnam.
38 CFR Parts 19 and 20
Administrative practice and procedure, Claims, Veterans.
Dated: September 18, 2014.
William F. Russo,
Acting Director, Office of Regulation Policy & Management, Office of
the General Counsel, Department of Veterans Affairs.
For the reasons set forth in the preamble, VA amends 38 CFR parts
3, 19, and 20 as follows:
PART 3--ADJUDICATION
Subpart A--Pension, Compensation, and Dependency and Indemnity
Compensation
0
1. The authority citation for part 3, subpart A continues to read as
follows:
Authority: 38 U.S.C. 501(a), unless otherwise noted.
0
2. Revise Sec. 3.1(p) to read as follows:
Sec. 3.1 Definitions.
* * * * *
(p) Claim means a written communication requesting a determination
of entitlement or evidencing a belief in entitlement, to a specific
benefit under the laws administered by the Department of Veterans
Affairs submitted on an application form prescribed by the Secretary.
* * * * *
[[Page 57695]]
Sec. 3.108 [Amended]
0
3. Amend Sec. 3.108 by removing ``formal or informal claim'' and
adding in its place ``complete claim as set forth in Sec. 3.160(a) or
an intent to file a claim as set forth in Sec. 3.155(b)''.
0
4. Amend Sec. 3.109, paragraph (a)(2) by revising the first sentence
to read as follows:
Sec. 3.109 Time limit.
* * * * *
(a) * * *
(2) The provisions of this paragraph are applicable to original
initial applications, to applications for increased benefits by reason
of increased disability, age, or the existence of a dependent, and to
applications for reopening or resumption of payments. * * *
* * * * *
Sec. 3.150 [Amended]
0
5. Amend Sec. 3.150 by removing paragraph (c).
Sec. 3.151 [Amended]
0
6. Amend Sec. 3.151, Cross Reference, by removing ``Informal claims.''
and adding in its place ``Intent to file a claim.''.
0
7. Revise Sec. 3.154 to read as follows:
Sec. 3.154 Injury due to hospital treatment, etc.
Claimants must file a complete claim on the appropriate application
form prescribed by the Secretary when applying for benefits under 38
U.S.C. 1151 and 38 CFR 3.361. See Sec. Sec. 3.151, 3.160(a), and
3.400(i) concerning effective dates of awards; see Sec. 3.155(b)
regarding intent to file the appropriate application form.
(Authority: 38 U.S.C. 501 and 1151.)
CROSS REFERENCE: Effective Dates. See Sec. 3.400(i). Disability or
death due to hospitalization, etc. See Sec. Sec. 3.358, 3.361 and
3.800.
0
8. Revise Sec. 3.155 to read as follows:
Sec. 3.155 How to file a claim.
The following paragraphs describe the manner and methods in which a
claim can be initiated and filed. The provisions of this section are
applicable to all claims governed by part 3.
(a) Request for an application for benefits. A claimant, his or her
duly authorized representative, a Member of Congress, or some person
acting as next friend of a claimant who is not of full age or capacity,
who indicates a desire to file for benefits under the laws administered
by VA, by a communication or action, to include an electronic mail that
is transmitted through VA's electronic portal or otherwise, that does
not meet the standards of a complete claim is considered a request for
an application form for benefits under Sec. 3.150(a). Upon receipt of
such a communication or action, the Secretary shall notify the claimant
and the claimant's representative, if any, of the information necessary
to complete the application form or form prescribed by the Secretary.
(b) Intent to file a claim. A claimant, his or her duly authorized
representative, a Member of Congress, or some person acting as next
friend of claimant who is not of full age or capacity may indicate a
claimant's desire to file a claim for benefits by submitting an intent
to file a claim to VA. An intent to file a claim must provide
sufficient identifiable or biographical information to identify the
claimant. Upon receipt of the intent to file a claim, VA will furnish
the claimant with the appropriate application form prescribed by the
Secretary. If VA receives a complete application form prescribed by the
Secretary, as defined in paragraph (a) of Sec. 3.160, appropriate to
the benefit sought within 1 year of receipt of the intent to file a
claim, VA will consider the complete claim filed as of the date the
intent to file a claim was received.
(1) An intent to file a claim can be submitted in one of the
following three ways:
(i) Saved electronic application. When an application otherwise
meeting the requirements of this paragraph (b) is electronically
initiated and saved in a claims-submission tool within a VA web-based
electronic claims application system prior to filing of a complete
claim, VA will consider that application to be an intent to file a
claim.
(ii) Written intent on prescribed intent to file a claim form. The
submission to an agency of original jurisdiction of a signed and dated
intent to file a claim, on the form prescribed by the Secretary for
that purpose, will be accepted as an intent to file a claim.
(iii) Oral intent communicated to designated VA personnel and
recorded in writing. An oral statement of intent to file a claim will
be accepted if it is directed to a VA employee designated to receive
such a communication, the VA employee receiving this information
follows the provisions set forth in Sec. 3.217(b), and the VA employee
documents the date VA received the claimant's intent to file a claim in
the claimant's records.
(2) An intent to file a claim must identify the general benefit
(e.g., compensation, pension), but need not identify the specific
benefit claimed or any medical condition(s) on which the claim is
based. To the extent a claimant provides this or other extraneous
information on the designated form referenced in paragraph (b)(1)(ii)
of this section that the form does not solicit, the provision of such
information is of no effect other than that it is added to the file for
appropriate consideration as evidence in support of a complete claim if
filed. In particular, if a claimant identifies specific medical
condition(s) on which the claim is based in an intent to file a claim,
this extraneous information does not convert the intent to file a claim
into a complete claim or a substantially complete application.
Extraneous information provided in an oral communication under
paragraph (b)(1)(iii) of this section is of no effect and generally
will not be recorded in the record of the claimant's intent to file.
(3) Upon receipt of an intent to file a claim, the Secretary shall
notify the claimant and the claimant's representative, if any, of the
information necessary to complete the appropriate application form
prescribed by the Secretary.
(4) If an intent to file a claim is not submitted in the form
required by paragraph (b)(1) of this section or a complete claim is not
filed within 1 year of the receipt of the intent to file a claim, VA
will not take further action unless a new claim or a new intent to file
a claim is received.
(5) An intent to file a claim received from a service organization,
an attorney, or agent indicating a represented claimant's intent to
file a claim may not be accepted if a power of attorney was not
executed at the time the communication was written. VA will only accept
an oral intent to file from a service organization, an attorney, or
agent if a power of attorney is of record at the time the oral
communication is received by the designated VA employee.
(6) VA will not recognize more than one intent to file concurrently
for the same benefit (e.g., compensation, pension). If an intent to
file has not been followed by a complete claim, a subsequent intent to
file regarding the same benefit received within 1 year of the prior
intent to file will have no effect. If, however, VA receives an intent
to file followed by a complete claim and later another intent to file
for the same benefit is submitted within 1 year of the previous intent
to file, VA will recognize the subsequent intent to file to establish
an effective date for any award granted for the next complete claim,
provided it is received within 1 year of the subsequent intent to file.
[[Page 57696]]
(c) Incomplete application form. Upon receipt of a communication
indicating a belief in entitlement to benefits that is submitted on a
paper application form prescribed by the Secretary that is not complete
as defined in Sec. 3.160(a) of this section, the Secretary shall
notify the claimant and the claimant's representative, if any, of the
information necessary to complete the application form prescribed by
the Secretary. If a complete claim is submitted within 1 year of
receipt of such incomplete application form prescribed by the
Secretary, VA will consider it as filed as of the date VA received the
incomplete application form prescribed by the Secretary that did not
meet the standards of a complete claim. See Sec. 3.160(a) for Complete
Claim.
(d) Claims. (1) Requirement for complete claim and date of claim. A
complete claim is required for all types of claims, and will generally
be considered filed as of the date it was received by VA for an
evaluation or award of benefits under the laws administered by the
Department of Veterans Affairs. If VA receives a complete claim within
1 year of the filing of an intent to file a claim that meets the
requirements of paragraph (b) of this section, it will be considered
filed as of the date of receipt of the intent to file a claim. Only one
complete claim for a benefit (e.g., compensation, pension) may be
associated with each intent to file a claim for that benefit, though
multiple issues may be contained within a complete claim. In the event
multiple complete claims for a benefit are filed within 1 year of an
intent to file a claim for that benefit, only the first claim filed
will be associated with the intent to file a claim. In the event that
VA receives both an intent to file a claim and an incomplete
application form before the complete claim as defined in Sec. 3.160(a)
is filed, the complete claim will be considered filed as of the date of
receipt of whichever was filed first provided it is perfected within
the necessary timeframe, but in no event will the complete claim be
considered filed more than one year prior to the date of receipt of the
complete claim.
(2) Scope of claim. Once VA receives a complete claim, VA will
adjudicate as part of the claim entitlement to any ancillary benefits
that arise as a result of the adjudication decision (e.g., entitlement
to 38 U.S.C. Chapter 35 Dependents' Educational Assistance benefits,
entitlement to special monthly compensation under 38 CFR 3.350,
entitlement to adaptive automobile allowance, etc.). The claimant may,
but need not, assert entitlement to ancillary benefits at the time the
complete claim is filed. VA will also consider all lay and medical
evidence of record in order to adjudicate entitlement to benefits for
the claimed condition as well as entitlement to any additional benefits
for complications of the claimed condition, including those identified
by the rating criteria for that condition in 38 CFR Part 4, VA Schedule
for Rating Disabilities. VA's decision on an issue within a claim
implies that VA has determined that evidence of record does not support
entitlement for any other issues that are reasonably within the scope
of the issues addressed in that decision. VA's decision that addresses
all outstanding issues enumerated in the complete claim implies that VA
has determined evidence of record does not support entitlement for any
other issues that are reasonably within the scope of the issues
enumerated in the complete claim.
CROSS REFERENCE: Complete claim. See Sec. 3.160(a). Effective
dates. See Sec. 3.400.
Sec. 3.157 [Removed]
0
9. Remove Sec. 3.157.
0
10. Amend Sec. 3.160 by removing the introductory text and revising
paragraphs (a) through (e) to read as follows:
Sec. 3.160 Types of claims.
(a) Complete claim. A submission of an application form prescribed
by the Secretary, whether paper or electronic, that meets the following
requirements:
(1) A complete claim must provide the name of the claimant; the
relationship to the veteran, if applicable; and sufficient service
information for VA to verify the claimed service, if applicable.
(2) A complete claim must be signed by the claimant or a person
legally authorized to sign for the claimant.
(3) A complete claim must identify the benefit sought.
(4) A description of any symptom(s) or medical condition(s) on
which the benefit is based must be provided to the extent the form
prescribed by the Secretary so requires; and
(5) For nonservice-connected disability or death pension and
parents' dependency and indemnity compensation claims, a statement of
income must be provided to the extent the form prescribed by the
Secretary so requires.
(b) Original claim. The initial complete claim for one or more
benefits on an application form prescribed by the Secretary.
(c) Pending claim. A claim which has not been finally adjudicated.
(d) Finally adjudicated claim. A claim that is adjudicated by the
Department of Veterans Affairs as either allowed or disallowed is
considered finally adjudicated by whichever of the following occurs
first:
(1) The expiration of the period in which to file a notice of
disagreement, pursuant to the provisions of Sec. 20.302(a) or Sec.
20.501(a) of this chapter, as applicable; or,
(2) Disposition on appellate review.
(e) Reopened claim. An application for a benefit received after
final disallowance of an earlier claim that is subject to
readjudication on the merits based on receipt of new and material
evidence related to the finally adjudicated claim, or any claim based
on additional evidence or a request for a personal hearing submitted
more than 90 days following notification to the appellant of the
certification of an appeal and transfer of applicable records to the
Board of Veterans' Appeals which was not considered by the Board in its
decision and was referred to the agency of original jurisdiction for
consideration as provided in Sec. 20.1304(b)(1) of this chapter.
(Authority: 38 U.S.C. 501)
* * * * *
0
11. Amend Sec. 3.400 by:
0
a. Revising paragraph (o)(2); and
0
b. Adding an authority citation at the end of paragraph (o)(2).
The revision and addition to read as follows:
Sec. 3.400 General.
* * * * *
(o) * * *
(2) Disability compensation. Earliest date as of which it is
factually ascertainable based on all evidence of record that an
increase in disability had occurred if a complete claim or intent to
file a claim is received within 1 year from such date, otherwise, date
of receipt of claim. When medical records indicate an increase in a
disability, receipt of such medical records may be used to establish
effective date(s) for retroactive benefits based on facts found of an
increase in a disability only if a complete claim or intent to file a
claim for an increase is received within 1 year of the date of the
report of examination, hospitalization, or medical treatment. The
provisions of this paragraph apply only when such reports relate to
examination or treatment of a disability for which service-connection
has previously been established.
[[Page 57697]]
(Authority: 38 U.S.C. 501, 5101)
* * * * *
Sec. 3.403 [Amended]
0
12. Amend Sec. 3.403 in paragraph (a)(3) by removing ``notice of the
expected or actual birth meeting the requirements of an informal
claim,'' and adding in its place ``a claim or an intent to file a claim
as set forth in Sec. 3.155(b),''.
Sec. 3.660 [Amended]
0
13. Amend Sec. 3.660 in paragraph (c) by removing ``notice
constituting an informal claim'' and adding in its place ``a claim or
an intent to file a claim as set forth in Sec. 3.155(b)''.
Sec. 3.665 [Amended]
0
14. Amend Sec. 3.665 in paragraph (f) by:
0
a. Removing ``an informal claim'' and adding in its place ``a claim or
intent to file a claim as set forth in Sec. 3.155(b)''; and
0
b. Removing ``new informal claim.'' and adding in its place ``new claim
or intent to file a claim as set forth in Sec. 3.155(b).''.
Sec. 3.666 [Amended]
0
15. Amend Sec. 3.666 by:
0
a. In paragraph (a)(4), removing ``an informal claim'' and adding in
its place ``a claim or intent to file a claim as set forth in Sec.
3.155(b)'';
0
b. In paragraph (a)(4), removing ``new informal claim.'' and adding in
its place ``new claim or intent to file a claim as set forth in Sec.
3.155(b).'';
0
c. In paragraph (b)(3), removing ``an informal claim.'' and adding in
its place ``a claim or intent to file a claim as set forth in Sec.
3.155(b).''; and
0
d. In paragraph (c), removing ``(which constitutes an informal
claim)''.
0
16. Amend Sec. 3.701 by revising paragraph (b) to read as follows:
Sec. 3.701 Elections of pension or compensation.
* * * * *
(b) Form of election. An election must be in writing and must
specify the benefit the person wishes to receive.
* * * * *
0
17. Amend Sec. 3.812 by:
0
a. Revising paragraph (e).
0
b. Amending paragraph (f) in the second sentence by removing ``claim''
and adding in its place ``complete claim''.
The revision to read as follows:
Sec. 3.812 Special allowance payable under section 156 of Pub. L. 97-
377.
* * * * *
(e) Claims. Claimants must file or submit a complete claim on a
paper or electronic form prescribed by the Secretary in order for VA to
pay this special allowance. When VA receives an intent to file a claim
or inquiries as to eligibility, VA will follow the procedures outlined
in Sec. 3.155. Otherwise, the date of receipt of the complete claim
will be accepted as the date of claim for this special allowance. See
Sec. Sec. 3.150, 3.151, 3.155, 3.400.
* * * * *
Subpart D--Universal Adjudication Rules That Apply to Benefit
Claims Governed by Part 3 of This Title
0
18. The authority citation for part 3, subpart D continues to read as
follows:
(Authority: 38 U.S.C. 501(a), unless otherwise noted.)
0
19. Amend Sec. 3.2600(a) by revising the first sentence to read as
follows:
Sec. 3.2600 Review of benefit claims decisions.
(a) A claimant who has filed a Notice of Disagreement submitted in
accordance with the provisions of Sec. 20.201 of this chapter, and
either Sec. 20.302(a) or Sec. 20.501(a) of this chapter, as
applicable, with a decision of an agency of original jurisdiction on a
benefit claim has a right to a review of that decision under this
section. * * *
* * * * *
PART 19--BOARD OF VETERANS' APPEALS: APPEALS REGULATIONS
Subpart B--Appeals Processing by Agency of Original Jurisdiction
0
20. The authority citation for part 19 continues to read as follows:
Authority: 38 U.S.C. 501(a), unless otherwise noted.
0
21. Add new Sec. Sec. 19.23 and 19.24 to subpart B to read as follows:
Sec. 19.23 Applicability of provisions concerning Notice of
Disagreement.
(a) Appeals governed by Sec. 20.201(a) of this chapter shall be
processed in accordance with Sec. 19.24. Sections 19.26, 19.27 and
19.28 shall not apply to appeals governed by Sec. 20.201(a) of this
chapter.
(b) Appeals governed by Sec. 20.201(b) of this chapter shall be
processed in accordance with Sec. Sec. 19.26, 19.27, and 19.28.
Sec. 19.24 Action by agency of original jurisdiction on Notice of
Disagreement required to be filed on a standardized form.
(a) Initial action. When a timely Notice of Disagreement in
accordance with the requirements of Sec. 20.201(a) of this chapter is
filed, the agency of original jurisdiction will reexamine the claim and
determine whether additional review or development is warranted.
(b) Incomplete and complete appeal forms--(1) Incomplete appeal
forms. In cases governed by paragraph (a) of Sec. 20.201 of this
chapter, if VA determines a form filed by the claimant is incomplete
and requests clarification, the claimant must timely file a completed
version of the correct form in order to initiate an appeal. A claimant
is not required to cure or correct the filing of an incomplete form by
filing a completed version of the correct form unless VA informs the
claimant or his or her representative that the form is incomplete and
requests clarification.
(2) Complete appeal forms. In general, a form will be considered
complete if the following information is provided:
(i) Information to identify the claimant;
(ii) The claim to which the form pertains;
(iii) Any information necessary to identify the specific nature of
the disagreement if the form so requires. For compensation claims, this
criterion will be met if the form enumerates the issues or conditions
for which appellate review is sought, or if it provides other
information required on the form to identify the claimant and the
nature of the disagreement (such as disagreement with disability
rating, effective date, or denial of service connection); and
(iv) The claimant's signature.
(3) Timeframe to complete correct form. In general, a claimant who
wishes to initiate an appeal must provide a complete form within the
timeframe established by Sec. 20.302(a) of this chapter. When VA
requests clarification of an incomplete form, the claimant must provide
a complete form in response to VA's request for clarification within
the later of the following dates:
(i) 60 days from the date of the request; or
(ii) 1 year from the date of mailing of the notice of the decision
of the agency of original jurisdiction.
(4) Failure to respond. If the claimant fails to provide a
completed form within the timeframe set forth in paragraph (b)(3) of
this section, the decision of the agency of original jurisdiction will
become final.
(5) Form timely completed. If a completed form is received within
the timeframe set forth in paragraph (b)(3) of this section, VA will
treat the completed form as the Notice of Disagreement and VA will
reexamine the claim and determine whether additional review or
development is warranted. If no further review or development is
required, or after
[[Page 57698]]
necessary review or development is completed, VA will prepare a
Statement of the Case pursuant to Sec. 19.29 unless the disagreement
is resolved by a grant of the benefit(s) sought on appeal or the NOD is
withdrawn by the claimant.
(c) Issues under appellate review. If a form enumerates some but
not all of the issues or conditions which were the subject of the
decision of the agency of original jurisdiction, the form will be
considered complete with respect to the issues for which appellate
review is sought and identified by the claimant. Any issues or
conditions not enumerated will not be considered appealed on the basis
of the filing of that form and will become final unless the claimant
timely files a separate form for those issues or conditions within the
applicable timeframe set forth in paragraph (b)(3) of this section.
(d) Disagreement concerning whether Notice of Disagreement has been
filed. Whether or not a claimant has timely filed a Notice of
Disagreement is an appealable issue, but in such a case, appellate
consideration shall be limited to the question of whether the correct
form was timely filed.
PART 20--BOARD OF VETERANS' APPEALS: RULES OF PRACTICE
0
22. The authority citation for part 20 continues to read as follows:
Authority: 38 U.S.C. 501(a) and as noted in specific sections.
Subpart A--General
0
23. Revise Sec. 20.3(c) to read as follows:
Sec. 20.3 Rule 3. Definitions.
* * * * *
(c) Appellant means a claimant who has initiated an appeal to the
Board of Veterans' Appeals by filing a timely Notice of Disagreement
pursuant to the provisions of Sec. 20.201, and either Sec. 20.302(a)
or Sec. 20.501(a), as applicable.
* * * * *
Subpart C--Commencement and Perfection of Appeal
0
24. Revise Sec. 20.200 to read as follows:
Sec. 20.200 Rule 200. What constitutes an appeal.
An appeal consists of a timely filed Notice of Disagreement
submitted in accordance with the provisions of Sec. 20.201, and either
Sec. 20.302(a) or Sec. 20.501(a), as applicable and, after a
Statement of the Case has been furnished, a timely filed Substantive
Appeal.
(Authority: 38 U.S.C. 7105)
0
25. Revise Sec. 20.201 to read as follows:
Sec. 20.201 Rule 201. Notice of Disagreement.
(a) Cases in which a form is provided by the agency of original
jurisdiction for the purpose of initiating an appeal.
(1) Format. For every case in which the agency of original
jurisdiction (AOJ) provides, in connection with its decision, a form
for the purpose of initiating an appeal, a Notice of Disagreement
consists of a completed and timely submitted copy of that form. VA will
not accept as a notice of disagreement an expression of dissatisfaction
or disagreement with an adjudicative determination by the agency of
original jurisdiction and a desire to contest the result that is
submitted in any other format, including on a different VA form.
(2) Provision of form to the claimant. If a claimant has
established an online benefits account with VA, or has designated an
email address for the purpose of receiving communications from VA, VA
may provide an appeal form pursuant to paragraph (a)(1) of this section
electronically, whether by email, hyperlink, or other direction to the
appropriate form within the claimant's online benefits account. VA may
also provide a form pursuant to paragraph (a)(1) of this section in
paper format.
(3) Presumption form was provided. This paragraph (a) applies if
there is any indication whatsoever in the claimant's file or electronic
account that a form was sent pursuant to paragraph (a)(1) of this
section.
(4) Specificity required by form. If the agency of original
jurisdiction gave notice that adjudicative determinations were made on
several issues at the same time, the specific determinations with which
the claimant disagrees must be identified to the extent a form provided
pursuant to paragraph (a)(1) of this section so requires. If the
claimant wishes to appeal all of the issues decided by the agency of
original jurisdiction, the form must clearly indicate that intent.
Issues not identified on the form will not be considered appealed.
(5) Alternate form or other communication. The filing of an
alternate form or other communication will not extend, toll, or
otherwise delay the time limit for filing a Notice of Disagreement, as
provided in Sec. 20.302(a). In particular, returning the incorrect VA
form, including a form designed to appeal a different benefit does not
extend, toll, or otherwise delay the time limit for filing the correct
form.
(b) Cases in which no form is provided by the agency of original
jurisdiction for purpose of initiating an appeal. A written
communication from a claimant or his or her representative expressing
dissatisfaction or disagreement with an adjudicative determination by
the agency of original jurisdiction and a desire to contest the result
will constitute a Notice of Disagreement relating to a claim for
benefits in any case in which the agency of original jurisdiction does
not provide a form identified as being for the purpose of initiating an
appeal. The Notice of Disagreement must be in terms which can be
reasonably construed as disagreement with that determination and a
desire for appellate review. If the agency of original jurisdiction
gave notice that adjudicative determinations were made on several
issues at the same time, the specific determinations with which the
claimant disagrees must be identified.
(c) Simultaneously contested claims. The provisions of paragraph
(b) of this section shall apply to appeals in simultaneously contested
claims under Sec. Sec. 20.500 and 20.501, regardless of whether a
standardized form was provided with the decision of the agency of
original jurisdiction.
(Authority: 38 U.S.C. 7105)
[FR Doc. 2014-22633 Filed 9-24-14; 8:45 am]
BILLING CODE 8320-01-P