[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
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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]
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