[Federal Register Volume 88, Number 55 (Wednesday, March 22, 2023)]
[Proposed Rules]
[Pages 17166-17169]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-05840]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AR76


Reevaluation of Claims for Dependency and Indemnity Compensation

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 certain awards of Dependency and 
Indemnity Compensation (DIC). Under the proposed amendment, relevant 
claimants will be eligible to elect to have certain previously denied 
DIC claims reevaluated pursuant to changes that establish or modify a 
presumption of service connection. Any award as a result of the 
reevaluation may be made retroactive as if the establishment or 
modification of the presumption of service connection had been in 
effect on the date of the submission of the original claim. This 
amendment incorporates legislative changes enacted by the Sergeant 
First Class Heath Robinson Honoring our Promise to Address 
Comprehensive Toxics Act of 2022 or the Honoring our PACT Act of 2022 
and will bring federal regulations into conformance with those changes.

DATES: Comments must be received on or before May 22, 2023.

ADDRESSES: Comments must be submitted through www.regulations.gov. 
Except as provided below, comments received before the close of the 
comment period will be available at www.regulations.gov for public 
viewing, inspection, or copying, including any personally identifiable 
or confidential business information that is included in a comment. We 
post the comments received before the close of the comment period on 
the following website as soon as possible after they have been 
received: http://www.regulations.gov. VA will not post on 
Regulations.gov public comments that make threats to individuals or 
institutions or suggest that the commenter will take actions to harm 
the individual. VA encourages individuals not to submit duplicative 
comments. We will post acceptable comments from multiple unique 
commenters even if the content is identical or nearly identical to 
other comments. Any public comment received after the comment period's 
closing date is considered late and will not be considered in the final 
rulemaking.

FOR FURTHER INFORMATION CONTACT: Eric Baltimore, 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: Section 204 of the Sergeant First Class 
Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act 
of 2022 or the Honoring our PACT Act of 2022, Public Law 117-168 
(herein referred to as ``the PACT Act''), enacted on August 10, 2022, 
amended, in relevant part, subchapter I of chapter 13 of title 38, 
United States Code, by adding a new section 1305 titled, ``Reevaluation 
of dependency and indemnity compensation determinations pursuant to 
changes in presumptions of service connection.'' VA proposes to issue a 
new regulation to be codified at 38 CFR 3.33 that incorporates this 
amendment.

Reevaluation of DIC Claim

    DIC benefits are payable to eligible survivors of service members 
who died while on active duty, active duty for training, or inactive 
duty training; or eligible survivors of Veterans who (1) died as a 
result of a service-connected injury or disease or (2) were in receipt 
of, or entitled to receive, compensation at the time of death for a 
service-connected disability rated totally disabling (a) for at least 
10 years immediately preceding death; or (b) for not less than five 
years since their release from active duty; or (c) for at least one 
year before death, if they were a former prisoner of war.
    Service connection may be considered for certain conditions that VA 
presumes were caused by military service. If a Veteran's death is 
determined to be caused by a condition presumed to be incurred or 
aggravated by service, and the Veteran meets the unique circumstances 
and service requirements for that condition, DIC benefits may be 
awarded to an eligible survivor. Historically, VA has applied new 
presumptions of service connection based on statutory or regulatory 
changes prospectively, in accordance with 38 U.S.C. 5110(g). The 
amendments within the PACT Act will allow certain previously denied 
claims for DIC to be eligible for reevaluation based on any new (i.e., 
postdating the prior DIC claims' denial) law, regulation, or Federal 
court decision or settlement that establishes or modifies a presumption 
of service connection, and allow for retroactive application (where 
applicable), commencing with

[[Page 17167]]

expanded presumptions afforded within the PACT Act itself.
    The PACT Act also explains that any reevaluation of a previously 
denied DIC claim must be elected by the claimant. Proposed 38 CFR 
3.33(c) states that the reevaluation of a previously denied DIC claim 
must be at the election of the relevant claimant and on a prescribed 
form pursuant to 38 CFR 3.152(a). Utilizing a prescribed form for the 
election of reevaluation by the claimant is consistent with 38 U.S.C. 
5101(a)(1)(A) and 38 CFR 3.152(a), which provide that a specific claim 
on the form prescribed by the Secretary must be filed in order for VA 
to pay benefits. Additionally, use of a prescribed form facilitates the 
orderly and timely reevaluation of a previously denied claim for DIC by 
documenting the claimant's unambiguous intent to seek a specific 
benefit (namely, DIC) on the basis of the newly established or modified 
presumption. The PACT Act does not stipulate any time limitations for 
an election by the relevant claimant; thus, there is no temporal 
limitation on when a claimant can elect to have a previously denied DIC 
claim reevaluated based on any new law, regulation, or Federal court 
decision or settlement that establishes or modifies a presumption of 
service connection.

Effective Date of Award

    The changes within the PACT Act allow an award, otherwise known as 
a grant of benefits, based on a reevaluation to be made retroactively 
as if the establishment or modification of the presumption of service 
connection had been in effect on the date of the submission of the 
original claim. We propose to state in 38 CFR 3.33(d)(1) that if VA 
denied a claim for DIC prior to a law, regulation, or Federal court 
decision or settlement establishing or modifying a presumption of 
service connection effective on or after August 10, 2022 (the date of 
enactment of the PACT Act), and a relevant claimant is entitled to DIC 
benefits based on that establishment or modification, the effective 
date of the award will be based on the date of the submission of the 
original claim.
    VA interprets section 204 of the PACT Act to allow this special 
retroactive effective date treatment in reevaluating DIC claims based 
on presumptions of service connection created directly by the PACT Act 
itself, such as amendments made by section 404, as well as presumptions 
of service connection added in the future pursuant to the process 
created by section 202. However, DIC claims outside the scope of 
section 204 are unaffected. We therefore propose to state in 38 CFR 
3.33(d)(2) that if the requirements of paragraph (d)(1) are not met, 
the effective date of the award of DIC shall be determined in 
accordance with 38 CFR 3.114 (pertaining to changes of law or VA issue) 
and 3.400 (pertaining to effective dates).

Identification of Relevant Claimants and Outreach

    In order to properly implement the changes within the PACT Act, VA 
must identify and contact relevant claimants who submitted claims for 
DIC benefits that were previously denied and might have been evaluated 
differently had the newly established or modified presumption of 
service connection been in effect, and applicable to the claim, on the 
date it was originally submitted. Proposed 38 CFR 3.33(b) would define 
a relevant claimant for the purposes of reevaluation of a previously 
denied DIC claim as an individual who submitted a claim for DIC to VA 
that was evaluated and denied by VA before the date on which a law, 
regulation, or Federal court decision or settlement establishing or 
modifying a presumption of service connection went into effect and 
might have been evaluated differently had the establishment or 
modification of presumption of service connection been applicable to 
the claim.
    Furthermore, the PACT Act explains that the Secretary must conduct 
outreach to notify relevant claimants that they may elect reevaluation 
of a previously denied DIC claim. Proposed 38 CFR 3.33(e) would outline 
the efforts that VA would undertake to inform a relevant claimant that 
they may elect reevaluation in light of the establishment or 
modification of a presumption of service connection. Within the 
proposed outreach efforts VA plans to inform relevant claimants that 
they may submit a claim by mail, in person at a VA regional office, or 
electronically through VA.gov. We propose the following outreach 
efforts to align with the outreach efforts defined within the PACT Act: 
(1) Publish on the internet website of the Department a notice that 
such claimants may elect to have a claim so reevaluated; (2) Notify, in 
writing, or by electronic means, Veterans service organizations of the 
ability of such claimants to elect to have a claim reevaluated; and (3) 
Contact each relevant claimant in the same manner that the Department 
last provided notice of a decision. These efforts mirror the statutory 
requirements found under 38 U.S.C. 1305(b)(2).
    The proposed outreach efforts would apply only to the original 
claimants of previously denied DIC claims because, as explained in the 
Accrued and Substitution Claims section below, only original claimants 
may initiate the reevaluation process.

Accrued and Substitution Claims

    The PACT Act is silent on the accrued benefits or substitution 
process as it relates to the reevaluation of previously denied DIC 
claims. Thus, the existing processes regarding accrued benefits and 
substitution, contained in 38 U.S.C. 5121 and 5121A, would continue to 
apply. Under these rules, if VA grants substitution for a DIC 
reevaluation under 38 U.S.C. 1305(a) it will continue processing the 
reevaluation election as if it were made by the original claimant. To 
be clear, VA will only grant substitution for a DIC reevaluation in 
circumstances where the original claimant elected to have the 
previously denied claim reevaluated but subsequently died before the 
decision on the claim became final. An individual seeking accrued 
benefits or substitution cannot elect a reevaluation under the PACT Act 
of a previously denied DIC claim if the original claimant had not made 
such an election prior to their death. See 38 U.S.C. 5121A(a)(1); 38 
CFR 3.1010(g)(1) (a claim must be ``pending'' in order for VA to grant 
substitution). However, an individual can pursue claims and appeals 
that were pending at the time of the original claimant's death, to 
include an original claimant's pending reevaluation election under the 
PACT Act, or claims where the period allowed by law for filing a notice 
of disagreement has not expired, as a substituted claimant if VA grants 
substitution.

Severability

    The purpose of this section is to clarify the agencies' intent with 
respect to the severability of provisions of this proposed rule. Each 
provision that the agency has proposed is capable of operating 
independently. If any provision of this rule is determined by judicial 
review or operation of law to be invalid, that partial invalidation 
will not render the remainder of this rule invalid. Likewise, if the 
application of any portion of this rule to a particular circumstance is 
determined to be invalid, the agencies intend that the rule remain 
applicable to all other circumstances.

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

[[Page 17168]]

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 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 proposed rule includes provisions constituting a revised 
collection of information under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501-3521) that require approval by the Office of Management and 
Budget (OMB). Accordingly, under 44 U.S.C. 3507(d), VA has submitted a 
copy of this rulemaking action to OMB for review and approval.
    OMB assigns control numbers to collection of information it 
approves. VA may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. If OMB does not approve the 
collection of information as requested, VA will immediately remove the 
provisions containing the collection of information or take such other 
action as is directed by OMB.
    Comments on the new collection of information contained in this 
rulemaking should be submitted through www.regulations.gov. Comments 
should indicate that they are submitted in response to RIN 2900-AR76 
Reevaluation of Claims for Dependency and Indemnity Compensation and 
should be sent within 60 days of publication of this rulemaking. The 
collection of information associated with this rulemaking can be viewed 
at: www.reginfo.gov/public/do/PRAMain.
    OMB is required to make a decision concerning the collection of 
information contained in this rulemaking between 30 and 60 days after 
publication of this rulemaking in the Federal Register. Therefore, a 
comment to OMB is best assured of having its full effect if OMB 
receives it within 30 days of publication. This does not affect the 
deadline for the public to comment on the provisions of this 
rulemaking.
    VA considers comments by the public on revised collection of 
information in
     Evaluating whether the revised collections of information 
are necessary for the proper performance of the functions of VA, 
including whether the information will have practical utility;
     Evaluating the accuracy of VA's estimate of the burden of 
the revised collection 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 collection 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.
    The revised collection of information associated with this 
rulemaking contained in 38 CFR 3.33 is described immediately following 
this paragraph, under its respective title.
    Title: This control number includes 3 prescribed forms, however, 
only VA Form 21P-534EZ has a revised collection of information 
associated with this rulemaking.

1. VA Form 21P-534EZ, Application for DIC, Survivors Pension, and/or 
Accrued Benefits
2. VA Form 21P-534, Application for Dependency and Indemnity 
Compensation, Survivors Pension and Accrued Benefits by a Surviving 
Spouse or Child (Including Death Compensation if Available)
3. VA Form 21P-534a, Application for Dependency and Indemnity 
Compensation by a Surviving Spouse or Child--In-Service Death Only.

    OMB Control No: 2900-0004.
    CFR Provision: 38 CFR 3.33.
     Summary of collection of information: The revised 
collection of information in proposed 38 CFR 3.33 would allow 
respondents to elect to have certain previously denied DIC claims 
reevaluated pursuant to changes that establish or modify a presumption 
of service connection. VA estimates this proposed change will increase 
the respondent burden by an additional 14,828 respondents in fiscal 
year 2023 (FY23), subsequently increasing the estimated total annual 
reporting and recordkeeping burden.
     Description of need for information and proposed use of 
information: VA, through the Veterans Benefits Administration, 
administers an integrated program of benefits and services, established 
by law, for Veterans, service personnel, and their dependents and/or 
beneficiaries. Under the authority of 38 U.S.C. 1310, 1311, 1312, 1313, 
1314, 1315, 1316, 1317 and 1318, VA will pay DIC benefits upon the 
death of a Veteran to certain eligible claimants. The information will 
be used by VA to determine if the claimant is eligible to elect to have 
certain previously denied DIC claims reevaluated pursuant to changes 
that establish or modify a presumption of service connection.
     Description of likely respondents: The respondent 
population for VA Form 21P-534EZ, VA Form 21P-534, and VA Form 21P-534a 
is primarily composed of survivors of deceased Veterans applying for VA 
survivors' benefits.
     Estimated number of respondents: Number of respondents is 
estimated at 181,588 per year for all 3 forms associated with OMB 
control number 2900-0004. These totals were derived from a query of our 
claims database and represent the actual number of each form received 
in an average year plus an additional estimated 14,828 respondents 
based on the change in section 204 of Public Law 117-168.
     Estimated frequency of responses: One time per 
application.
     Estimated average burden per response: The estimated 
completion time for each form is 43 minutes (0.716666 hours):

[cir] VA Form 21P-534EZ completion time is 40 minutes (0.67 hours)
[cir] VA Form 21-534 completion time is 1 hour and 15 minutes (1.25 
hours)
[cir] VA Form 21-534a completion time is 15 minutes (.25 hours)

     Estimated total annual reporting and recordkeeping burden: 
VA estimates the total annual reporting and recordkeeping burden for 
all three forms to be 130,138 burden hours. VA estimates the annual 
reporting and recordkeeping burden based on the proposed rule to be 
10,626 burden hours. This submission does not involve any recordkeeping 
costs.
     Estimated cost to respondents per year: VA estimates the 
annual cost to respondents to be $3,645,165 (130,138 burden hours for 
respondents x $28.01 per hour). VA estimates that the proposed rule 
would increase the number of respondents in FY23 by 14,828. The 
increase in cost to respondents per year based on the additional 14,828 
respondents would result in an estimated information collection burden 
cost increase of $297,634 (10,626 burden hours x $28.01 per hour).
    * To estimate the total information collection burden cost, VA used 
the

[[Page 17169]]

Bureau of Labor Statistics (BLS) median hourly wage for hourly wage for 
``all occupations'' of $28.01 per hour. This information is available 
at https://www.bls.gov/oes/current/oes_nat.htm#13-0000.

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed 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). 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.

Assistance Listing

    The Assistance Listing numbers and titles for the programs affected 
by this document are: 64.101, Burial Expenses Allowance for Veterans; 
64.110, Veterans Dependency and Indemnity Compensation for Service-
Connected Death.

List of Subjects in 38 CFR Part 3

    Administrative practice and procedure, Claims, Veterans.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved this 
document on February 15, 2023, 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.

Luvenia Potts,
Regulations Development Coordinator, Office of Regulation Policy & 
Management, Office of General Counsel, Department of Veterans Affairs.

    For the reasons stated in the preamble, the Department of Veterans 
Affairs proposes to amend 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. Add Sec.  3.33 to read as follows:


Sec.  3.33  Reevaluation of Claims for Dependency and Indemnity 
Compensation Involving Presumptions of Service Connection Following 
Enactment of Public Law 117-168.

    (a) Purpose This section states effective date and election rules 
based on amendments made under Public Law 117-168, which provides for 
the reevaluation of certain previously denied dependency and indemnity 
compensation (DIC) claims when a law establishes or modifies a 
presumption of service connection.
    (b) Definitions For purpose of this section:
    (1) Law means any law, regulation, or Federal court decision or 
settlement establishing or modifying a presumption of service 
connection.
    (2) Relevant claimant means an individual who submitted a claim for 
DIC to VA that was evaluated and denied by VA before the date on which 
such a provision of law went into effect and might have been evaluated 
differently had the establishment or modification of the service 
connection presumption been applicable to the claim.
    (c) Election of review
    (1) General. VA will not reevaluate under this section any 
previously denied claim for DIC prior to election by the relevant 
claimant.
    (2) Form of election. Reevaluation of a previously denied DIC claim 
must be at the election of the relevant claimant on a prescribed form 
pursuant to Sec.  3.152(a).
    (d) Effective date of award. If a relevant claimant is found 
entitled to DIC based on the establishment or modification of a 
presumption of service connection, the effective date of the award will 
be as follows:
    (1) If VA denied a claim for DIC prior to a law defined under 
(b)(1) of this section that establishes or modifies a presumption of 
service connection on or after August 10, 2022, (the date of enactment 
of Pub. L. 117-168), the effective date of the award will be determined 
as if the establishment or modification of the presumption of service 
connection had been in effect on the date of the submission of the 
original claim.
    (2) If the requirements of paragraph (d)(1) are not met, the 
effective date of the award shall be determined in accordance with 
Sec. Sec.  3.114 and 3.400.
    (e) Outreach and identification of relevant claimants
    (1) VA will conduct the following efforts to inform a relevant 
claimant that they may elect to have a claim reevaluated in light of 
the establishment or modification of a presumption of service 
connection:
    (i) Publish on the internet website of the Department a notice that 
such claimants may elect to have a claim so reevaluated;
    (ii) Notify, in writing or by electronic means, veterans service 
organizations of the ability of such claimants to elect to have a claim 
so reevaluated; and
    (iii) Notify each such claimant in the same manner that the 
Department last provided notice of a decision.

(Authority: 38 U.S.C. 501, 1305)

[FR Doc. 2023-05840 Filed 3-21-23; 8:45 am]
BILLING CODE 8320-01-P