[Federal Register Volume 86, Number 61 (Thursday, April 1, 2021)]
[Proposed Rules]
[Pages 17098-17100]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-06535]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AR13


Certification of Evidence for Proof of Service

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its 
adjudication regulations concerning the nature of evidence that VA will 
accept as proof of military service and character of discharge. In the 
past, VA only accepted original service documents, copies of service 
documents issued by the service department or by a public custodian of 
records, or photocopies of service documents if they were certified to 
be true copies of documents acceptable to VA by an accredited agent, 
attorney or service organization representative who had successfully 
completed VA-prescribed training on military records. This proposed 
change would allow VA to accept uncertified copies of service documents 
as evidence of military service if VA is satisfied that the documents 
are free from alteration. The intended effect of this amendment is to 
streamline and improve the timeliness of adjudication and claims 
processing for VA benefits--without compromising program integrity.

DATES: Comments must be received on or before June 1, 2021.

ADDRESSES: Comments may be submitted through www.Regulations.gov or 
mailed to: Pension and Fiduciary Service (21PF), Department of Veterans 
Affairs, 810 Vermont Avenue NW, Washington, DC 20420. Comments should 
indicate that they are submitted in response to RIN 2900-AR13-
Certification of Evidence for Proof of Service. Comments received will 
be available at www.Regulations.gov for public viewing, inspection or 
copies.

FOR FURTHER INFORMATION CONTACT: David Klusman, Lead Program Analyst, 
Pension and Fiduciary Service (21PF), Veterans Benefits Administration, 
Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC

[[Page 17099]]

20420, (202) 632-8863. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: The cornerstone of eligibility for VA 
benefits is active military, naval, or air service and a discharge or 
release under conditions other than dishonorable. VA regulations at 38 
CFR 3.203 establish the nature of the evidence VA will accept as proof 
of active military service and character of discharge. In general, 
those regulations require original service documents; VA will accept 
copies of those documents only if the copies are issued by the military 
service department or by a public custodian of records or photocopies 
if they are certified to be true copies of documents acceptable to VA 
by an accredited agent, attorney or service organization representative 
who has successfully completed VA-prescribed training on military 
records.
    On November 3, 1980, VA amended 38 CFR 3.203 as a consequence of 
the Department of Defense's revision to its DD Form 214, (Certificate 
of Release or Discharge from Active Duty). 45 FR 72654 (Nov. 3, 1980). 
Under the revised version of Sec.  3.203, VA would only accept a copy 
of a DD Form 214 or Certificate of Discharge if the copy was issued by 
the service department. VA's revisions precluded acceptance of a 
document certified by a notary public or a public record custodian 
without verification by the service department.
    However, in June 1981, VA proposed to further amend Sec.  3.203 to 
again accept a copy of a discharge document certified as a true and 
exact copy by a public custodian of records. 46 FR 32036 (Jun. 19, 
1981). VA explained that ``[i]t now appears that failure to use 
certified copies of discharge documents is causing lengthy delays in 
claims processing because verification of service must be obtained from 
the service departments in many more cases than we originally 
believed.'' 46 FR 32036. VA noted that, ``[s]ince the process of 
obtaining verification is lengthy, the volume of requests is rapidly 
increasing. Consequently, we are proposing to amend Sec.  3.203 so as 
to again accept a certified copy of a DD Form 214 or the Certificate of 
Discharge issued by a public custodian of records.'' Id. VA published a 
final rule adopting these proposed changes in October 1981. 46 FR 51246 
(Oct. 19, 1981).
    In June 2000, VA proposed further revision to Sec.  3.203 to allow 
VA to accept photocopies of service documents as proof of service if an 
accredited agent, attorney, or service organization representative who 
had successfully completed VA-prescribed training on military records 
certified them to be true copies of documents acceptable to VA. VA 
explained that the proposed amendment would ``help streamline claims 
processing because it will reduce the number of instances where VA must 
seek verification of military service from the service department.'' 65 
FR 39580. VA published a final rule adopting these changes in April 
2001. 66 FR 19857 (Apr. 18, 2001).
    Under the current process, when the Veterans Benefits 
Administration (VBA) receives uncertified service documents (i.e., not 
originals or certified copies), it must seek to verify service through 
other means, such as data sharing with other Federal agencies. Although 
VA is engaged in these efforts, the available tools to rapidly request 
verification of service only apply to service that ended after 1994. 
Thus, particularly for pension and survivor benefits claims--where the 
population skews towards a service period prior to 1994--VA cannot 
utilize the more rapid service verification methods noted above, as the 
majority of those claimants served in (or are beneficiaries of those 
who served in) periods that pre-date 1994.
    VA's inability to use the more rapid service verification methods 
in these cases often adds months to the claims process, and yet the 
responses received from the other Federal agencies almost always affirm 
the information that was already available on the uncertified service 
document. And in instances where the records cannot be located--such as 
those destroyed in the 1973 fire at the National Personnel Records 
Center--VA must conduct additional review and request additional 
service information from the claimants, which adds more time to the 
claims process. Lastly, specific to pension benefit claims, service 
verification is often the only additional piece of information needed 
for final adjudication--turning a claim that should be completed in one 
touch into a claim requiring multiple touches that almost always add no 
additional value.
    From August 1, 2017, to September 30, 2017, the Saint Paul and 
Milwaukee Pension Management Centers (PMCs) conducted a service 
verification pilot program that accepted uncertified copies of service 
documents to expedite claims adjudication. The PMCs adjudicated the 
claims with uncertified copies of the service documents and then 
requested that the Records Management Center (RMC) verify said service. 
As of June 4, 2019, of the 2,113 total claims completed, the RMC 
verified as correct the service information that was initially obtained 
from the uncertified copy of the service document in 2,105 claims 
(99.6%). Of the eight remaining claims, VA is awaiting a response from 
the RMC because the records are fire-related or cannot be located. 
Thus, there is little evidence that the current regulation concerning 
the nature of evidence that VA will accept as proof of military service 
and character of discharge actually reduces fraud; rather, it only 
increases the time to deliver benefits and services to Veterans and 
beneficiaries.
    Therefore, VA proposes to amend 38 CFR 3.203 to authorize VA to 
accept uncertified copies of service documents--submitted by claimants 
and/or their representatives--as evidence of military service if VA is 
satisfied that the documents are free from alteration. This proposed 
amendment would help streamline and improve the timeliness of 
adjudication and claims processing for VA benefits by providing VA 
additional flexibility regarding the nature of evidence that VA will 
accept as proof of military service and reducing the number of 
instances where VA must unnecessarily seek verification of military 
service from other Federal agencies. VA also proposes minor technical 
changes to Sec.  3.203(a)(1) for clarity.
    Finally, we note that VA's proposed revisions to Sec.  3.203 would 
not alter the underlying standards for determining qualifying service, 
which would continue to be dependent on the information contained in 
the service documents. Nothing in this proposed rule would alter VA's 
essential policy, reflected in Sec.  3.203, of relying on service 
department determinations of qualifying service, and for any disputes 
regarding the content of a person's service record to be raised with 
the appropriate service department. Rather, this proposed rulemaking 
would only address the circumstances under which a copy of the service 
document would be acceptable to VA without requiring verification from 
the service department.

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

[[Page 17100]]

quantifying both costs and benefits, reducing costs, harmonizing rules, 
and promoting flexibility. The Office of Information and Regulatory 
Affairs has determined that this rule is not 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 Regulatory Impact Analysis (RIA) are available on 
VA's website at http://www.va.gov/orpm/, by following the link for ``VA 
Regulations Published From FY 2004 Through Fiscal Year to Date.''

Paperwork Reduction Act

    This proposed rule contains no provisions constituting a collection 
of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501-3521).

Regulatory Flexibility Act

    The Secretary certifies that this proposed rule would not have a 
significant economic impact on a substantial number of small entities 
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. There are no small entities involved with the process and/or 
benefits associated with this rulemaking. Therefore, pursuant to 5 
U.S.C. 605(b), the initial and final regulatory flexibility analysis 
requirements of 5 U.S.C. 603 and 604 do not apply.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any one year. This proposed rule would have no such 
effect on State, local, and tribal governments, or on the private 
sector.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs affected by this document are 64.100, Automobiles and 
Adaptive Equipment for Certain Disabled Veterans and Members of the 
Armed Forces; 64.101, Burial Expenses Allowance for Veterans; 64.104, 
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; and 64.110, Veterans Dependency and 
Indemnity Compensation for Service-Connected Death.

List of Subjects in 38 CFR Part 3

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

    Signing Authority: Denis McDonough, Secretary of Veterans Affairs, 
approved this document on March 12, 2021, 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.

Jeffrey M. Martin,
Assistant Director, Office of Regulation Policy & Management, Office of 
the Secretary, Department of Veterans Affairs.

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

PART 3--ADJUDICATION

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 38 CFR 3.203(a)(1) to read as follows:


Sec.  3.203   Service records as evidence of service and character of 
discharge.

    (a) * * *
    (1) The evidence is a document issued by the service department. A 
copy of an original document is acceptable if:
    (i) The copy was issued by the service department; or
    (ii) The copy was issued by a public custodian of records who 
certifies that it is a true and exact copy of the document in the 
custodian's custody; or
    (iii) The copy was submitted by an accredited agent, attorney or 
service organization representative who has successfully completed VA-
prescribed training on military records, and who certifies that it is a 
true and exact copy of either an original document or of a copy issued 
by the service department or a public custodian of records; or
    (iv) The Department of Veterans Affairs is satisfied that an 
otherwise uncertified copy submitted by the claimant or by the 
claimant's representative is free from alteration; and
* * * * *
(Authority: 38 U.S.C. 501(a))

[FR Doc. 2021-06535 Filed 3-31-21; 8:45 am]
BILLING CODE 8320-01-P