[Federal Register Volume 86, Number 198 (Monday, October 18, 2021)]
[Rules and Regulations]
[Pages 57583-57584]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-22554]


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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: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) amends 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 change 
allows 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: This rule is effective November 17, 2021.

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

SUPPLEMENTARY INFORMATION: In a document published in the Federal 
Register on April 1, 2021, at 86 FR 17098, VA proposed to amend its 
adjudication regulations concerning the nature of evidence that VA will 
accept as proof of military service and character of discharge. The 60-
day public comment period ended on June 1, 2021. VA received six 
comments from interested individuals and organizations.
    All six comments were supportive of the proposed rule; however, two 
commentors additionally expressed concern about VA implementing an 
accurate method of identifying alterations and other methods of VA 
security along with this authorization with respect to utilizing 
uncertified copies of service documents. Neither commenter recommended 
revision to the proposed regulatory text based on this concern, and one 
commenter stated that his concern about implementing an accurate method 
of identifying alterations could be subsequently addressed in VA's M21-
1 Adjudication Procedures Manual.
    VA appreciates the two commenters' concerns. VA notes that the 
commenters do not suggest that the validity or advisability of the 
regulation would depend on how VA chooses to address this concern. 
Rather, the premise of the commenters' concern is that the proposed 
rule should be put into effect, and the commenters are merely noting 
this will create a downstream program integrity concern that VA will 
have to manage. VA agrees and is in the process of developing 
instructions for Veterans Benefits Administration (VBA) personnel 
pertaining to this issue. VA views these concerns as capable of being 
addressed at the subregulatory level, and does not make any changes to 
the proposed regulatory text based on them. VA also notes that the 
proposed regulatory text uses similar language already contained in 38 
CFR 3.204 for determining if photocopies of documents necessary to 
establish birth, death, marriage, or relationship under the provisions 
of 38 CFR 3.205 through 3.215 are acceptable as evidence. And if VA is 
not satisfied that the uncertified copy of a service document is free 
from alteration and that the document is genuine and the information 
contained

[[Page 57584]]

in it is accurate, VA will request the claimant or claimant's 
representative submit a copy as defined below in 38 CFR 3.203(a)(1)(i)-
(iii) while simultaneously requesting verification of service from the 
service department. VA has taken these concerns into consideration, but 
makes no change to the final rule based on them.
    One of the commenters also stated that there should be an extension 
period to when Veterans can submit claims prior to discharge from 
service if they start showing any signs of a mental ailment. VA's 
rulemaking addresses the nature of evidence that VA will accept as 
proof of military service and character of discharge; it does not 
address the timing of filing claims or how early a claim may be filed. 
Thus, this statement from the commenter is outside the scope of the 
present rulemaking. However, VA notes that it currently administers the 
Benefits Delivery at Discharge (BDD) program that allows Veterans to 
submit disability compensation claims 90 to 180 days prior to their 
anticipated separation date from active duty. VA makes no change to the 
final rule based on the comment.

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. 
The Office of Information and Regulatory Affairs has determined that 
this rule is not a significant regulatory action under Executive Order 
12866. The Regulatory Impact Analysis associated with this rulemaking 
can be found as a supporting document at www.regulations.gov.

Paperwork Reduction Act

    This final 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 final rule will not have a 
significant economic impact on a substantial number of small entities 
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. The factual basis for this certification is that 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 final 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.

Congressional Review Act

    Pursuant to Subtitle E of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (known as the Congressional Review Act) (5 U.S.C. 
801 et seq.), the Office of Information and Regulatory Affairs 
designated this rule as not a major rule, as defined by 5 U.S.C. 
804(2).

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 October 8, 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 stated in the preamble, the Department of Veterans 
Affairs amends 38 CFR part 3 as set forth below:

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.  3.203(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
* * * * *
[FR Doc. 2021-22554 Filed 10-15-21; 8:45 am]
BILLING CODE 8320-01-P