[Federal Register Volume 88, Number 106 (Friday, June 2, 2023)]
[Proposed Rules]
[Pages 36261-36271]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-11361]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 1, 3, 13, 19, and 20

RIN 2900-AR77


Update VA Adjudication Regulations To Authorize the Use of 
Electronic Notification for VA Benefit Claims and Appeals

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its 
regulations relating to notification of a claims decision in accordance 
with section 807 of the Sergeant First Class Heath Robinson Honoring 
Our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act), 
specifically to permit electronic decision notification between 
claimants or beneficiaries and VA.

DATES: Comments must be received on or before August 1, 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 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: https://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: Veterans Benefits Administration 
information: Korrie N. Shivers, Senior Management and Program Analyst; 
Office of Administrative Review, Veterans Benefits Administration, 
Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 
20420, (202) 461-9700. (This is not a toll-free telephone number.) 
Board of Veterans' Appeals information: Anthony C. Scir[eacute], Jr., 
Chief Counsel, Board of Veterans' Appeals, Department of Veterans 
Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202) 632-5277 
(this is not a toll-free number).

SUPPLEMENTARY INFORMATION: With the transition to electronic claims 
filing and claims processing, VA modernized how it adjudicates claims 
for benefits. Section 807 of the PACT Act removed certain legal 
impediments to electronic notice. Public Law 117-168, 136 Stat 1759, 
1805-06. This proposed rule would amend 38 CFR parts 1, 3, 13, 19, and 
20 to implement these changes and modernize how an individual receives 
legally required notice from VA.
    Section 807 of the Pact Act defined ``notice'' as ``a communication 
issued through means (including electronic means) prescribed by the 
Secretary.'' Public Law 117-168, 136 Stat 1759, 1806 (codified at 38 
U.S.C. 5100(2)). In addition, Congress provided that VA ``may provide 
notice [of a decision affecting the provision of VA benefits] 
electronically if a claimant (or the claimant's representative) elects 
to receive such notice electronically.'' Public Law 117-168, 136 Stat 
1759, 1806 (codified at 38 U.S.C. 5104). Therefore, with respect to VA 
authority to provide notice electronically, Congress created two 
general categories of notice--decisional notice and nondecisional 
notice.

I. Decisional Notice

    Until recently, Congress had framed the time for appealing a VA 
benefits decision and the associated finality of that decision in terms 
of when VA ``mailed'' the decision. 38 U.S.C. 7105(b)(1)(A), 7105A(a), 
7266(a) (2022). Further, decisions on an appeal by the Board of 
Veterans' Appeals (Board) were required to be mailed to appellants at 
their last known address. 38 U.S.C. 7104(e)(1) (2022). Thus, to comply 
with statute, the Secretary and the Board had to provide decision 
notice by mail. However, section 807 of the PACT Act removed these 
references to mailing and added provisions expressly authorizing 
electronic decision notification if the claimant or representative has 
elected electronic notice. This proposed rule will outline how VA would 
implement the electronic notice provisions authorized by section 807 of 
the PACT Act.
    38 U.S.C. 5104(a) requires the Secretary to, ``on a timely basis, 
provide to the claimant (and to the claimant's representative) notice 
of'' benefits decisions. A provision added by section 807 of the PACT 
Act, 38 U.S.C. 5104(c), allows VA to provide such notice electronically 
if the claimant or the claimant's representative elects electronic 
notice. Section 5104 is not specific to one benefit or program. Rather, 
it generally applies to any decision by an agency of original 
jurisdiction (AOJ) affecting any benefit furnished by VA to veterans or 
the dependents or survivors of veterans.
    Because section 5104 applies to multiple benefit lines, in 
implementing the election provision, VA must consider the needs of 
different benefit lines.
    The statute does not indicate the scope of an election to receive 
electronic notice--that is, whether--an election applies to a recipient 
of notice (i.e., a claimant or representative) generally or if an 
election is benefit-or claim-specific. Yet, if recipients were 
permitted to limit their elections, VA would be required to review each 
election to see if there were any limitations. This would inevitably 
lead to the sort of time-intensive clarifications and interpretations 
that VA has sought to reduce or eliminate through other modernization 
efforts. See Standard Claims and Appeals Forms, 79 FR 57660, 57683 
(Sept. 25, 2014). In addition, permitting recipients to limit their 
elections to either AOJ decisions or Board decisions would essentially 
double the administrative burden upon VA by requiring VA to track two 
elections for every recipient. To avoid these results, in implementing 
the statutory election provisions, VA proposes not to permit recipients 
to limit their elections of electronic notice. If an individual has 
elected electronic notice, unless and until that election is revoked, 
VA may provide any decision notice of an AOJ or Board decision 
pertaining to any VA benefit via electronic means.
    At the same time, different benefit lines utilize different claims-
processing systems with different capabilities. Were VA precluded from 
providing

[[Page 36262]]

notice by mail to claimants who had elected electronic notice, VA would 
be unable to accept elections and implement electronic decision notice 
under section 807 of the PACT Act until every program office had the 
means to provide notice electronically. Moreover, if there was a 
question as to whether an individual had in fact elected electronic 
notice, VA may be unable to provide any notice until that question was 
resolved, thereby delaying resolution of the claim.
    Therefore, VA proposes a single rule that can function flexibly VA-
wide. The rule would establish postal mail as the default means of 
transmitting decision notice. VA would also retain its statutory 
discretion to provide electronic decision notice in lieu of mailed 
notice where the recipient has elected electronic notice. Once 
electronic notice is elected, claimants and representatives will be 
able to update and/or revoke electronic notice as published in the 
notice section of the Federal Register.

II. Nondecisional Notice

    Sections 5104 and 7104, which were amended by the PACT Act, deal 
only with notices of a ``decision.'' VA proposes to define the terms 
``decisional notice'' and ``nondecisional notice.'' VA intends the term 
``decisional notice'' to refer to notice under 38 U.S.C. 5104(a) and 
7104(e). VA proposes to define the term ``nondecisional notice'' as 
``legally required notice other than decisional notice.''
    Thus, where Congress has been silent, VA has discretion to 
determine the appropriate means of nondecisional notice. Unlike 
decisional notice, in addressing nondecisional notice, Congress has not 
placed overarching limitations on VA's ability to provide nondecisional 
notice electronically. Paralyzed Veterans of Am. (``PVA'') v. Sec'y of 
Veterans Affairs, 345 F.3d 1334, 1348 (Fed. Cir. 2003). In furtherance 
of its modernization efforts, where Congress has not prescribed a 
specific means of notice, VA proposes to eliminate barriers to 
electronic notice.

III. Mechanics of Notice

    Federal agencies that have implemented electronic notice as an 
alternative to mailed notice have generally done so using one of three 
models. Under the ``access equals delivery'' model, posting the notice 
on a website accessible to the individual entitled to notice satisfies 
the notice obligation. Securities Offering Reform, 70 FR 44722, 44783 
(Aug. 3, 2005) (The Securities and Exchange Commission (SEC) adopted an 
``access equals delivery'' model for providing final prospectuses). 
Under the ``notice and access model,'' posting the notice on a website 
accessible to the individual entitled to notice and sending that 
individual a communication stating that the notice has been posted 
satisfies the notice obligation. Amendments to Rules Requiring internet 
Availability of Proxy Materials, 74 FR 53954, 53955 (Oct. 21, 2009) 
(SEC adopted a ``notice and access'' model for delivery of proxy 
materials); Default Electronic Disclosure by Employee Pension Benefit 
Plans Under ERISA, 85 FR 31884, 31921 (May 27, 2020) (Department of 
Labor (DOL) adopted a ``notice and access'' model for plan 
administrators to furnish required notices). Under the ``full 
delivery'' model, delivering a copy of the notice document to the 
individual entitled to notice satisfies the notice obligation. 85 FR at 
31921 (DOL permitted plan administrators who did not have websites to 
email required notices to individuals). Courts have consistently 
recognized that mailing a notice to an individual's mailing address 
satisfies a legal obligation to provide notice. Mennonite Bd. of 
Missions v. Adams, 462 U.S. 791, 800 (1983). Courts have similarly 
recognized that delivery of a notice document to an individual's 
electronic address (as occurs under the full delivery model) is 
equivalent to mailing. See e.g. F.T.C. v. PCCare247 Inc., No. 12 CIV. 
7189 PAE, 2013 WL 841037, at *4 (S.D.N.Y. Mar. 7, 2013) (collecting 
cases). Courts have also found the ``notice and access'' model 
``equivalent'' to providing notice by first class mail, Lee v. SunTrust 
Mortg., Inc., No. 1:12-CV-2823-SCJ, 2012 WL 12884865, at *1 n. 1 (N.D. 
Ga. Sept. 19, 2012) (describing the notice provided by the court's 
electronic filing system ``equivalent of service . . . by first class 
mail, postage prepaid'' (ellipsis in original) (internal citation 
omitted); accord United States v. Hanrahan, No. CIV 09-0219 JB/KBM, 
2010 WL 2292912, at *1 (D.N.M. Apr. 28, 2010); see also Stemcor USA, 
Inc. v. Miracero, S.A. de C.V., 66 F. Supp.3d 394, 398 (S.D.N.Y. 2014) 
(stating that ``the notice of electronic filing is the practical cyber-
equivalent of physical service of a tangible copy of the filed 
paper''). Thus, VA believes that either the ``full delivery'' model or 
the ``notice and access'' model are an appropriate alternative to 
mailing decisional notice.
    Both the ``full delivery'' model and the ``notice and access'' 
model would require VA to communicate information directly to a 
recipient's electronic address and, at present, VA does not believe 
that sufficient information technology capabilities are in place. 
Therefore, in this rulemaking, VA seeks to (1) propose regulatory 
amendments that would allow VA to implement a ``notice and access'' 
and/or a ``full delivery'' model of providing notice related to claims 
for VA benefits if and when VA is prepared to do so.

IV. Specific Regulatory Changes Proposed

A. Part 1--General Provisions

    Section 5104(a) requires VA to provide a copy of the decision 
notice both to the claimant and to the claimant's representative, if 
any. Similarly, section 7104(e) requires the Board to provide a copy of 
the decision notice both to the parties to the appeal and to their 
representatives, if any. Because representatives may have different 
needs and different degrees of access to technology than the 
individuals they represent, VA proposes that a representative's 
election be independent from the election of the claimant, appellant or 
other party the representative represents.
1. Notice to Claimants, Appellants, and Other Parties
    Currently, 38 CFR 1.710 governs delivery of benefit payments and 
correspondence. When this provision was first promulgated in 1988, 
postal mail was VA's primary means of providing notice . . ., and 
accordingly the provision requires notice ``directed to the address 
specified by the claimant.'' To facilitate electronic notice, VA 
proposes to amend the provision to encompass means of transmission 
other than mail. With advancements in electronic communications, the 
concept of an ``address'' is no longer inherently associated with a 
physical location. Black's Law Dictionary (11th ed. 2019). Instead, an 
``address'' is simply the designation of ``a place where a person or 
organization may be communicated with,'' Merriam-Webster's Collegiate 
Dictionary 15 (11th ed. 2008), and whether a person or organization can 
be communicated with at a particular place depends on the means of 
communication used and the nature of the communication. For instance, 
an individual may be able to receive correspondence, but not payments, 
at a particular electronic address, or vice versa. Thus, an individual 
may have more than one address for VA purposes. To reflect this, VA 
proposes to amend the first sentence of Sec.  1.710(a) to read ``All 
correspondence and all checks for benefits payable to claimants under 
laws administered by the Department of

[[Page 36263]]

Veterans Affairs shall be directed to the address specified by the 
claimant for the means of transmission used.'' VA also proposes a 
revision to the third sentence.
    This regulation implements a statutory provision which states that 
``Benefits under laws administered by the Secretary may not be denied 
an applicant on the basis that the applicant does not have a mailing 
address.'' 38 U.S.C. 3003(c) (1987) (subsequently redesignated 38 
U.S.C. 5126). The legislative history makes clear that the intent of 
the enactment was to assist individuals who are experiencing 
homelessness in accessing monetary benefits. It did not relieve 
veterans of their duty to keep VA informed of their whereabouts or to 
provide VA will a current mailing address if they have one. Hyson v. 
Brown, 5 Vet. App. 262, 265 (1993). While VA intends to increase its 
reliance on electronic communications, the decision whether to 
communicate with a claimant by mail or through electronic means also 
depends on the resources of the VA office issuing the notice. Thus, VA 
will continue to communicate with claimants via mail in some 
circumstances and claimants must accordingly continue to keep VA 
apprised of their current mailing address. Consistent with the language 
of the underlying statute, VA proposes to amend the last sentence of 
paragraph (a) to read ``[i]n no event will a claim or payment of 
benefits be denied because the claimant has no mailing address.'' 
Currently, Sec.  1.710(d) states that, if the claimant has not provided 
a current mailing address, all correspondence and checks will be 
delivered to the appropriate Agent Cashier. VA proposes to add language 
clarifying that this procedure applies in circumstances where notice 
would otherwise be mailed.
    Section 1.710 is the only provision under the undesignated center 
heading ``Homeless Claimants.'' VA proposes to amend the undesignated 
center heading to read ``Delivery of Benefit Payments and 
Correspondence To Claimants.''
    VA also proposes to add Sec.  1.711 titled ``Furnishing required 
notice.''
    In paragraph (a) of the new section, VA proposes to define relevant 
terms. VA regulations use words like ``writing'' and ``notice'' with 
respect to information provided by VA as well as information provided 
by third parties. To make clear that the definitions in this paragraph 
are only intended to apply to notice provided by VA and not submissions 
to VA required to be in writing, VA proposes to include language 
reflecting that limitation.
    In section 807 of the PACT Act, Congress distinguished notice of 
``a decision . . . affecting the provision of benefits to a claimant,'' 
38 U.S.C. 5104, from other types of legally required notice. While VA 
has broad flexibility to determine whether to send many types of notice 
electronically, 38 U.S.C. 5100(2), VA's authority to send decision 
notice electronically is limited to situations where the claimant, 
beneficiary or representative has elected to receive decisional notice 
electronically. 38 U.S.C. 5104(c). To reflect this distinction, VA 
proposes to define the terms ``decisional notice'' and ``nondecisional 
notice.'' VA intends the term ``decisional notice'' to refer to notice 
under 38 U.S.C. 5104(a) and 7104(e). VA proposes to define the term 
``nondecisional notice'' as ``legally required notice other than 
decisional notice.''
    To make clear that the term ``address'' is not limited to physical 
locations and that an individual may have more than one valid 
``address'' on record at one time, VA proposes to state that ``address 
means a place, specified by an individual where the individual is able 
to receive communications through a particular means. The term includes 
postal addresses, telephone numbers, email addresses, and unique 
identifiers associated with VA web-based systems.''
    Congress did not use consistent terminology in the statutes 
governing decision notice. Section 5104 requires notice to a 
``claimant'' while section 7104 requires notice to an ``appellant'' or 
``other party.'' Because Sec.  1.711 applies to both types of 
decisions, VA proposes to define the term addressee to encompass all of 
these individuals.
    VA proposes to define ``writing'' as ``words, symbols or marks 
intentionally recorded on something tangible, such as paper, computer, 
electronic storage device, or any other medium.''
    To accommodate the ``notice and access'' option, VA proposes to 
define the term ``alert'' as ``a communication informing the addressee 
that a notice is available through a VA web-based system,'' and to 
define ``notice content'' as ``the information VA is required to 
communicate to the addressee.''
    Where VA is required to provide direct notice to a specific 
claimant, VA satisfies that obligation by sending the notice to the 
claimant's latest address of record. However, VA is concerned the term 
``latest'' can be read to imply a claimant or beneficiary only has one 
``address'' at any point in time. If VA is authorized to communicate 
with claimants and beneficiaries through more than one means, an 
individual may have more than one valid ``address'' on record with VA 
at any one time. Thus, in Sec.  1.711(b), VA proposes to state: ``Where 
notice is directed to a specific addressee, VA satisfies its notice 
obligation by transmitting, to the addressee's last address of record 
for the means of transmission used, either (1) the required notice 
content, or (2) an alert.''
    While Congress has limited VA's authority to provide decisional 
notice electronically to instances where the individual has elected 
electronic notice, Congress has not imposed a similar restriction with 
respect to nondecisional notice. PVA, 345 F.3d at 1348. VA accordingly 
has discretion to determine the appropriate means of nondecisional 
notice. To account for these flexibilities, in paragraph (c), VA 
proposes to state ``Except as otherwise provided, nondecisional notice 
may be transmitted orally or in writing.'' Whenever VA provides notice 
through oral communication with a claimant, it will be reflected in the 
claimant's file.
    In Sec.  1.711(d), VA proposes to include additional information 
regarding how VA will furnish decisional notice. VA's current practice 
is to provide decisional notice to claimants, beneficiaries, and 
representatives through postal mail. For individuals who do not elect 
electronic decisional notice, VA does not propose to change its 
existing practice. For individuals who do elect electronic decisional 
notice, for the reasons explained in Section I of this rulemaking, VA 
proposes to retain its discretion to determine whether a specific 
decision notice will be sent by postal mail or electronic means.
    Regarding elections and revocations, VA proposes to state that an 
addressee elects electronic decision notice and revokes a prior 
election by selecting the appropriate option within a VA web-based 
system that solicits such elections and revocations. To accommodate 
technological advances, VA also proposes to state that other means of 
electing electronic decision notice and revoking an election may be 
prescribed by the Secretary and published in the notice section of the 
Federal Register.
2. Notice to Representatives
    As for providing decision notices to representatives, currently, 
the first sentence of 38 CFR 1.525(d) requires VA to supply copies of 
adjudication notices to representatives while the second sentence 
describes a representative's authority to continue to act following the 
claimant's death. Because these two sentences concern two distinct 
topics, VA proposes to redesignate the second sentence of 38 CFR 
1.525(d) as 38 CFR

[[Page 36264]]

1.525(f). VA also proposes to amend paragraph (d) to reflect the same 
principles reflected in Sec.  1.711 of this part. In addition, VA 
proposes to include the following language in paragraph (d): ``The 
election of electronic decision notice or revocation thereof by a 
representative receiving notice pursuant to this paragraph is 
independent of any election or revocation thereof by the claimant.''

B. Part 3--Adjudication

1. Definition of Notice
    VA proposes to amend current 38 CFR 3.1, which contains the 
definitions applicable to VA's pension, compensation, and dependency 
and indemnity compensation benefit programs.
    In current paragraph (q) of Sec.  3.1 the term ``notice'' is 
defined as ``written notice sent to a claimant or payee at his or her 
latest address of record.'' 38 CFR 3.1(q). When the same requirements 
apply to a particular class of persons or things, defining that class 
at the beginning of the part or section may shorten and simplify the 
regulations. However, an overly broad definition may have the opposite 
effect, increasing complexity by requiring a number of exceptions and 
exclusions.
    When the definition of ``notice'' was first added to part 3 in 
1962, much of the communication technology that is ubiquitous today--
internet, email, cell phones, voicemail, fax--either did not exist or 
was not widely available for consumer use. The U.S. Postal Service, 
however, was an effective means to reach the vast majority of claimants 
and beneficiaries. Because postal mailing requires the identification 
of a specific postal address and, often, a specific recipient, these 
identifiers would have been common characteristics of notices sent by 
VA by mail.
    However, the association between these characteristics and the 
concept of ``notice'' provided by VA has loosened over time. VA has an 
obligation to notify a claimant of the information and evidence 
necessary to substantiate a claim. However, because claimant-specific 
notice is not required, it is often possible for VA to meet this 
obligation by including the information on claim forms. 79 FR 57660, 
57676-77 (Sept. 25, 2014). Moreover, for certain types of notice, 
Congress has required that a claimant or representative elect 
electronic notice before VA provides electronic notice, while, for 
other types of notice, Congress has left the question of whether to use 
electronic notice to VA's discretion, without regard to whether the 
recipient has specifically elected to receive notice electronically. 
Therefore, situations may arise in which a particular claimant or 
beneficiary receives certain notices electronically and others by mail. 
Given the number of potential variations, VA proposes to remove the 
definition of ``notice'' from Sec.  3.1(q).
2. References to ``Latest Address of Record''
    Several other sections in 38 CFR part 3 require VA to transmit 
notice to the claimant's ``latest address of record.'' If VA is 
authorized to communicate with claimants and beneficiaries through more 
than one means, an individual may have more than one valid ``address'' 
on record with VA at any one time. Section 807 of the PACT Act removed 
the reference to ``latest address of record'' from 38 U.S.C. 
5112(b)(6), an effective date provision applicable to reductions and 
discontinuances ``by reason of change in law or administrative issue, 
change in interpretation of a law or administrative issue, or, for 
compensation purposes, a change in service-connected or employability 
status or change in physical condition.'' 38 U.S.C. 5112(b)(6). In 
light of the statutory change, VA proposes to remove the equivalent 
language from the regulations implementing that statutory provision. 
The affected regulatory provisions are 38 CFR 3.105(d), 3.105(e), 
3.105(g) and 3.114(b). The ``latest address of record'' language also 
appears in Sec. Sec.  3.105(f), 3.105(h) and 3.905(b). In those 
instances, the language is not statutory. VA also proposes to amend 
these provisions to reflect that an individual may have more than one 
valid address on record with VA at any one time.
3. References to ``Letter'' and ``Mail''
    To facilitate electronic notice, VA proposes to remove references 
to ``mail'' and ``letter'' that are solely a feature of VA's 
regulations. Specifically, VA proposes to replace the term ``in 
letters'' with ``when,'' in Sec.  3.150(b), replace the term 
``mailing'' with ``issuance'' in Sec.  3.1010(f)(3) and to replace the 
term ``mails'' with ``issues'' in Sec.  3.2600(b).
4. Decisional Notice
    Current Sec.  3.103(a) states ``Every claimant has the right to 
written notice of the decision made on his or her claim,'' 38 CFR 
3.103(a), and subsequent paragraphs also state that VA will provide 
decisional notice in writing. VA is not proposing to change its current 
practice of providing documentable decisional notice, and VA does not 
propose to begin relying on oral communications for decision notice. 
However, to prevent any possible ambiguity regarding whether the 
ordinary meaning of ``written'' includes communication by electronic 
means, VA proposes to add the following sentence in a new paragraph 
(g): ``VA will furnish the written notice described in paragraph (f) in 
accordance with Sec. Sec.  1.525(d)(5) and 1.711(d) of this chapter.''
    Current Sec.  3.103(f) states ``[w]ritten notification must include 
in the notice letter or enclosures or a combination thereof'' certain 
specified elements. The words ``letter'' and ``enclosure'' are 
typically associated with physical mailing. To allow for electronic 
notice, VA proposes to amend the language to read ``The notice document 
or enclosures or attachments or a combination thereof must include''.
5. Computation of Time Limits
    Once VA provides notice, then any applicable timelines, requests 
for information and/or other deadlines will start as of the date of 
notice. Currently, VA regulations reflect this, stating ``[i]n 
computing the time limit for any action required of a claimant or 
beneficiary, . . . [t]he first day of the specified period . . . shall 
be the date of mailing of notification to the claimant or beneficiary 
of the action required and the time limit therefor. The date of the 
letter of notification shall be considered the date of mailing for 
purposes of computing time limits.'' 38 CFR 3.110. For mailed notice, 
the courts have made clear that the date on which VA provides notice is 
the date on which the notice, ``correctly addressed, stamped with the 
proper postage,'' was ``delivered . . . into the custody of the U.S. 
Postal Service.'' Davis v. Brown, 7 Vet. App. 298, 303 (1994). VA is 
presumed to have taken these steps on the date appearing on the notice 
letter, Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004), and, 
if these steps are taken, the addressee is presumed to receive the 
notice. Anania v. McDonough, 1 F.4th 1019, 1022 (Fed. Cir. 2021).
    However, these principles are not limited to correspondence sent by 
mail. The presumption that VA mailed a letter on the date appearing on 
the letter is just one circumstance in which the courts have applied 
the presumption of regularity. ``The presumption of regularity provides 
that, in the absence of clear evidence to the contrary, the court will 
presume that public officers have properly discharged their official 
duties.'' Miley, 366 F.3d at 1347. When Miley was decided, the statute 
governing appeals of initial VA

[[Page 36265]]

decisions stated that appeals must be initiated ``within one year from 
the date of mailing of notice of the result of initial review or 
determination.'' Id. at 1344. Section 807 of the PACT Act changed the 
statutory duty such that VA is authorized to provide decision notices 
by means other than mail but did not alter the operation of the 
presumption of regularity. Therefore, if the statute permits electronic 
notice, the presumption that VA will dispatch the notice in accordance 
with the applicable statute will apply to notices sent electronically. 
The presumption of receipt is also not limited to mail. Rather, it 
applies to any reliable means of communication--the postal service, 
fax, email, etc.--by which a communication is ``properly dispatched''. 
Kennell v. Gates, 215 F.3d 825, 829 (8th Cir. 2000). Therefore, the 
presumption of receipt would also apply to notices sent electronically. 
Consistent with the scope of these presumptions, VA proposes to amend 
38 CFR 3.110(b) to extend the principles currently applicable to mailed 
notice to notice provided by other means.
    With respect to its electronic filing system, courts have concluded 
that notice has been accomplished and the required deadlines begin to 
run from the date the court transmits the ``Notice of Electronic 
Filing'' rather than the date the individual retrieves the document 
from the electronic court filing system. See McNaney v. Sampson & 
Morris Grp., Inc., No. 2:21-CV-1809, 2022 WL 1017388, at *4 (W.D. Pa. 
Apr. 5, 2022). VA proposes to apply the same principle when notice is 
provided via alerts pursuant to proposed Sec. Sec.  1.525(d) and 1.711.

C. Part 13 Fiduciary Activities

    VA proposes to amend part 13 to align current regulations with the 
PACT Act.
1. Definition of Written Notice
    Currently, 38 CFR 13.20 defines the term ``written notice'' to mean 
``that VA will provide to the beneficiary and the beneficiary's 
representative and legal guardian, if any, a written decision in a 
fiduciary matter that is appealable under Sec.  13.600. Such notice 
will include: (1) A clear statement of the decision, (2) The reason(s) 
for the decision, (3) A summary of the evidence considered in reaching 
the decision, and (4) The necessary procedures and time limits to 
initiate an appeal of the decision.'' This definition, which applies to 
all of part 13, is specific to decisional notice. However, elsewhere in 
part 13, the term ``written notice'' is used to refer to things other 
than notice of a decision. See 38 CFR 13.230(g)(2) (requiring ``written 
notice'' when a bond is furnished or adjusted at the beneficiary's 
expense); 13.300(a)(3) (requiring ``written notice'' of periodic onsite 
reviews); 13.510(c) (requiring VA to provide ``written notice'' to the 
beneficiary of a fiduciary's request to withdraw). Therefore, VA 
proposes to relocate the material pertaining to content of the notice 
to Sec.  13.600 and to remove the remainder of the definition.
2. Notice of Decisions That Are Appealable to the Board
    In part 13, appeals to the Board are specifically addressed in 
Sec.  13.600. Therefore, VA proposes a new Sec.  13.600(b)(3) which 
will state ``notice of a decision that is appealable to the Board 
pursuant to paragraph (a) of this section will be transmitted in 
accordance with Sec. Sec.  1.525(d)(5) and 1.711(d) of this chapter.''
3. References to ``Mail''
    As explained in Section I of this rulemaking, section 807 of the 
PACT Act removed the reference to mailing as the trigger for the 
commencement of the period to file a Notice of Disagreement (NOD). 
Consistent with this statutory change, VA proposes to amend Sec.  
13.400(d)(1)(ii) by replacing ``mailed'' with ``issued.''
    In addition, consistent with the reasoning in Section IV.B.3 of 
this rulemaking regarding impediments to electronic notice that are 
solely regulatory, VA proposes to amend Sec.  13.300(c)(3) by replacing 
``mails'' with ``issues'' and to amend Sec.  13.400(d)(1)(i) by 
replacing ``mailed'' with ``issued''.

D. Part 19 Board of Veterans' Appeals: Legacy Appeals Regulations

    VA proposes to amend part 19, subparts B and C, to reflect the 
option for the agency of original jurisdiction (AOJ) to issue notice to 
a claimant by electronic means pursuant to this rulemaking. Section 807 
of the PACT Act removed the reference to mailing as the trigger for the 
commencement of the period to file a NOD. Consistent with this 
statutory change, VA proposes to amend Sec. Sec.  19.24(b)(3)(ii), 
19.26(b) and (c)(1)(ii), and 19.52 to remove language referring to the 
mailing of notice of an AOJ decision and replace it with language 
referring more generally to the issuance of notice of an AOJ decision. 
In addition, currently, the part 19 regulatory provisions addressing 
the period to appeal an AOJ decision use ``one-year'' and ``1-year'' 
interchangeably. For consistency, VA proposes to replace ``1-year'' 
with ``one year.''
    Consistent with the reasoning in Section IV.B.3 of this rulemaking, 
VA proposes to amend Sec.  19.26(b) to remove the references to 
``mail'' and letter''. Currently, paragraph (b)(2) states ``For written 
contacts, VA will mail a letter requesting clarification to the 
claimant and send a copy to his or her representative and fiduciary, if 
any.'' This language merely repeats VA's general practice regarding 
written notice. See 38 CFR 1.525(d), 1.710(a). Therefore, rather than 
merely replacing the terms ``mail'' and letter,'' VA proposes to remove 
paragraph (b)(2) in its entirety. VA proposes to consolidate the 
introductory text of paragraph (b) and the text of paragraph (b)(1) 
into a single paragraph.
    VA also proposes to amend Sec.  19.52 to address computation of 
time limits when the pertinent notice is furnished electronically. 
Where a time limit runs from the date of electronic notice, VA proposes 
to apply the same principles described in Section IV.B.5 of this 
rulemaking. While section 807 of the PACT removed the reference to 
mailing as the trigger for the commencement of the period to file a 
NOD, the reference to mailing as the trigger for the commencement of 
the period to file a Substantive Appeal in response to a Statement of 
the Case remains unchanged. Thus, VA only proposes to amend the 
portions of Sec.  19.52 that concern the time limit for filing a NOD.

F. Part 20 Board of Veterans' Appeals: Rules of Practice

1. Decisional Notice
    Through the PACT Act, Congress authorized VA to provide electronic 
notice of a Board decision on an appeal if the appellant or their 
representative elects to receive electronic notice. With respect to the 
election, Congress used the same language with respect to Board 
decisions as it did with respect to AOJ decisions. Therefore, VA 
proposes to implement the provisions as a single election. In part 20, 
Sec.  20.801 applies to decisions under the modernized review system, 
Sec.  20.903 to decisions under the legacy system, and Sec.  20.1405(f) 
to decisions on claims motions to revise Board decisions based on of 
clear and unmistakable error. To implement the election provision, at 
the end of each section, VA proposes to add the following or similar 
language: ``Notice of a decision will be transmitted in accordance with 
Sec. Sec.  1.525(d)(5) and 1.711(d) of this chapter.'' In addition, VA 
proposes to remove the last sentence of Sec.  20.1409(a), as it is 
duplicative of language VA proposes to add to Sec.  20.1405(f).

[[Page 36266]]

2. Computation of Time Limits
    Section 20.110 addresses computation of time limits. Paragraph (b) 
contains language similar to Sec.  3.110(a). However, whereas Sec.  
3.110(a) applies to ``the time limit for any action required of a 
claimant or beneficiary,'' Sec.  20.110(b) applies to ``the time limit 
for filing a written document.'' Unlike part 3, part 20 includes 
provisions applicable to circumstances where a representative is not 
acting on behalf of a claimant. See 38 CFR 20.6 (Withdrawal of services 
by a representative). Thus, the part 20 rule governing time limits is 
not limited to actions by a claimant, beneficiary, or appellant. 
However, there is nothing about the principle underlying the rule that 
limits it to filing of written documents. To more accurately reflect 
the scope, in Sec.  20.110(b), VA proposes to replace the words 
``filing a written document'' with the words ``for any action by a 
party or representative''.
    Unlike Sec.  3.110, Sec.  20.110 does not currently address how the 
first day of the time period is determined. Rather, in part 20, the 
applicable rule is repeated in the sections establishing specific time 
periods. Because each of these provisions apply the same standard for 
determining the first day of the time period, VA proposes to state the 
standard in new Sec.  20.110(c) and to remove it from other sections in 
part 20. Proposed Sec.  20.110(c) would contain the same principles as 
Sec.  3.110(b). In addition, VA proposes to remove the corresponding 
language from Sec. Sec.  20.104(c), 20.203(b), 20.402, 20.404, 20.502, 
20.503, 20.804(c), 20.908(a), 20.908(b)(1), 20.1002(c)(2), 20.1305(a), 
20.1305(d), 20.1405(e), 20.1408.
3. References to ``Letter,'' ``Mail,'' ``Stamped,'' and ``Last Address 
of Record''
    As explained in Section I of this rulemaking, section 807 of the 
PACT Act removed the reference to mailing as the trigger for the 
commencement of the period to file a Notice of Disagreement (NOD). 
Consistent with this statutory change, VA proposes to amend Sec. Sec.  
20.202, 20.203(b), 20.402, 20.502(a) by replacing variations of 
``mail'' with variations of ``issue.''
    Consistent with the reasoning in Section IV.B.3 of this rulemaking 
regarding impediments to electronic notice that are solely regulatory, 
VA proposes to replace variations of the term ``mail'' with variations 
of ``issue'' in Sec. Sec.  20.104(c), 20.709(h)(3), 20.714, 
20.715(a)(2), 20.1002(c)(2), 20.1100(a), 20.1305(a), 20.1305(d), 
20.1408, and 20.1409(a). VA also proposes to remove references to 
``letter'' in Sec. Sec.  20.711(b)(2)(i), 20.1002(c)(2), 20.1305(a), 
and 20.1305(d). In Sec.  20.1405(e), to make clear that the pertinent 
time period runs from the date the Board provides the party a copy of 
the General Counsel opinion rather than the date the General Counsel 
provided the opinion to the Board, VA proposes to replace ``of 
mailing'' with ``a copy of the opinion was furnished''.
    In Sec. Sec.  20.1100(a) and 20.1409(a), VA proposes to replace 
language stating that the date of the Board decision will be 
``stamped'' on the decision with language stating that that the date 
will appear on the decision notice. These provisions, which address 
finality and determining the finality of a Board decision based on the 
date on the decision notice, align with current practice regarding AOJ 
decisions.
    Consistent with the reasoning in Section IV.B.1 of the rulemaking, 
VA proposes to add the phrase ``for the means of transmission used'' 
after the phrase ``last address of record'' in Sec. Sec.  20.406, 
20.505, and 20.1408.
Executive Order 12866, 13563, and 14094
    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 14094 (Executive Order on Modernizing Regulatory 
Review) supplements and reaffirms the principles, structures, and 
definitions governing contemporary regulatory review established in 
Executive Order 12866 of September 30, 1993 (Regulatory Planning and 
Review), and Executive Order 13563 of January 18, 2011 (Improving 
Regulation and Regulatory Review). The Office of Information and 
Regulatory Affairs has determined that this rulemaking is a significant 
regulatory action under Executive Order 12866 as amended by Executive 
Order 14094. The Regulatory Impact Analysis associated with this 
rulemaking can be found as a supporting document at 
www.regulations.gov.
Regulatory Flexibility Act
    The Secretary hereby 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). VA believes the impact to be minimal because, as 
stated in the preamble, VA is merely adding an additional method of VA 
notice delivery and implementing statutory provisions allowing 
claimants and representatives to elect to receive electronic decision 
notice, if they so choose. Therefore, pursuant to 5 U.S.C. 605(b), the 
initial and final regulatory flexibility analysis requirements to 5 
U.S.C. 606 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 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.
Paperwork Reduction Act
    This proposed rule contains no provision constituting a collection 
of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501-3521).

List of Subjects

38 CFR Part 1

    Administrative practice and procedure, Archives and records, 
Cemeteries, Claims, Courts, Crime, Flags, Freedom of information, 
Government contracts, Government employees, Government property, 
Infants and children, Inventions and patents, Parking, Penalties, 
Postal service, Privacy, Reporting and recordkeeping requirements, 
Seals and insignia, Security measures, Wages.

38 CFR Part 3

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

38 CFR Part 13

    Surety bonds, Trusts and trustees, Veterans.

38 CFR Parts 19 and 20

    Administrative practice and procedure, Claims, Veterans.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved this

[[Page 36267]]

document on April 6, 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,
Regulation Development Coordinator, Office of Regulation Policy & 
Management, Office of General Counsel, Department of Veterans Affairs.

    For the reasons set forth in the preamble, VA proposes to amend 38 
CFR parts 1, 3, 13, 19, and 20 as follows:

PART 1--GENERAL PROVISIONS

0
1. The authority citation for part 1 is continues to read as follows:

    Authority: 38 U.S.C. 5101, and as noted in specific sections. 38 
U.S.C. 1751-1754 and 7331-7334. Sections 1.500 to 1.527 issued under 
72 Stat. 1114, 1236, as amended; 38 U.S.C. 501, 5701.

0
2. Amend Sec.  1.525 by revising paragraph (d) and adding paragraph (f) 
to read as follows:


Sec.  1.525  Inspection of records by or disclosure of information to 
recognized representatives of organizations and recognized attorneys.

* * * * *
    (d)(1) For purposes of VA's obligations to provide notice to 
representatives under laws affecting the provision of benefits to 
veterans or the dependents or survivors of veterans:
    Address means a place, specified by the claimant's representative 
where the claimant's representative is able to receive communications 
through a particular means.
    Alert means a communication informing the addressee claimant's 
representative that a notice is available through a VA web-based 
system.
    Claimant's representative means any person holding power of 
attorney, a recognized attorney who has filed the requisite 
declaration, or the accredited representative of a recognized 
organization holding power of attorney.
    Decisional notice means notice of a determination affecting the 
provision of benefits to a claimant or beneficiary.
    Nondecisional notice means legally required notice other than 
decisional notice.
    Notice content means the information VA is required to communicate 
to the claimant's representative.
    Writing means words, symbols or marks intentionally recorded on 
something tangible, such as paper, computer, electronic storage device, 
or any other medium.
    (2) The claimant's representative shall be supplied with a copy of 
each notice to the claimant respecting the adjudication of the claim.
    (3) Where notice is directed to the claimant's representative, VA 
satisfies its obligation by transmitting, to the representative's 
latest address of record for the means of transmission used, either:
    (i) The required notice content, or
    (ii) An alert.
    (4) Except as otherwise provided, nondecisional notice may be 
transmitted orally or in writing.
    (5) With respect to decisional notice:
    (i) In cases where the claimant's representative has not elected to 
receive decisional notice electronically, VA will mail the notice 
content.
    (ii) In cases where the claimant's representative has elected to 
receive decisional notice electronically, VA will either:
    (A) Transmit either of the communications described in paragraph 
(d)(3) of this section through electronic means; or
    (B) Mail the notice content.
    (6) A claimant's representative elects to receive decisional notice 
electronically by selecting the electronic decision notice option 
within a VA web-based system that solicits such elections, or through 
other means prescribed by the Secretary and published in the notice 
section of the Federal Register.
    (7) A claimant's representative revokes a prior election to receive 
decisional notice electronically by making the appropriate selection in 
a VA web-based system that solicits such revocations, or through other 
means prescribed by the Secretary and published in the notice section 
of the Federal Register.
    (8) The election of electronic decision notice or revocation 
thereof by a representative receiving notice pursuant to this paragraph 
(d)(8) is independent of any election or revocation thereof by the 
claimant.
* * * * *
    (f) If a claimant dies before action on the claim is completed, the 
person or organization holding power of attorney or the attorney who 
has filed the requisite declaration may continue to act until the 
action is completed except where the power of attorney or requisite 
declaration was filed on behalf of a dependent.
0
3. Revise the undesignated center heading preceding Sec.  1.710 and 
revise Sec.  1.710 to read as follows:

Delivery of Benefits Payments and Correspondence to Claimants


Sec.  1.710  Homeless claimants: Delivery of benefit payments and 
correspondence.

    (a) All correspondence and all checks for benefits payable to 
claimants under laws administered by the Department of Veterans Affairs 
shall be directed to the address specified by the claimant for the 
means of transmission used. The Department of Veterans Affairs will 
honor for this purpose any address of the claimant in care of another 
person or organization or in care of general delivery at a United 
States post office. In no event will a claim or payment of benefits be 
denied because the claimant has no mailing address.
    (b) To ensure prompt delivery of benefit payments and 
correspondence, claimants who seek personal assistance from Veterans 
Benefits Counselors when filing their claims shall be counseled as to 
the importance of providing his or her current mailing address and, if 
no address is provided, the procedures for delivery described in 
paragraph (d) of this section.
    (c) The Department of Veterans Affairs shall prepare and distribute 
to organizations specially serving the needs of veterans and the 
homeless, including but not limited to shelters, kitchens and private 
outreach facilities, information encouraging such organizations to 
counsel individuals on the importance of providing mailing addresses to 
the Department of Veterans Affairs and advising them of this 
regulation.
    (d) If a claimant fails or refuses to provide a current mailing 
address, to the Department of Veterans Affairs, items described in 
paragraph (a) of this section that would otherwise be mailed to the 
claimant will be delivered to the Agent Cashier of the regional office 
which adjudicated or is adjudicating the claim in the case of 
compensation, pension or survivors' benefits, to the Agent Cashier of 
the Department of Veterans Affairs facility closest to the educational 
institution or training establishment attended by a claimant in the 
case of education benefits, or to the Agent Cashier of any other 
Department of Veterans Affairs facility deemed by the Agency to be 
appropriate under the circumstances of the particular case. The 
claimant, within 30 days after issuance, may obtain delivery of any 
check or correspondence held by an Agent Cashier upon presentation of 
proper identification. Checks unclaimed after 30 days will be returned 
to the Department of the Treasury and the correspondence to the 
regional office or facility of jurisdiction. Thereafter, the

[[Page 36268]]

claimant must request the reissuance of any such check or item of 
correspondence by written notice to the Department of Veterans Affairs.


(Authority: 38 U.S.C. 5120; 5126)


0
4. Add Sec.  1.711 to read as follows:


Sec.  1.711  Furnishing required notice.

    (a) Definitions. For purposes of VA's obligations to provide notice 
under a law affecting the provision of benefits to veterans or the 
dependents or survivors of veterans:
    Address means a place, specified by an individual where the 
individual is able to receive communications through a particular 
means. The term includes postal addresses, telephone numbers, email 
addresses, and unique identifiers associated with VA web-based systems.
    Addressee means a claimant, beneficiary, dependent of a veteran, or 
another individual legally entitled to receive notice.
    Alert means a communication informing the addressee that a notice 
is available through a VA web-based system.
    Decisional notice means notice of a determination affecting the 
provision of benefits to a claimant or beneficiary.
    Nondecisional notice means legally required notice other than 
decisional notice.
    Notice content means the information VA is required to communicate 
to the addressee.
    Writing means words, symbols or marks intentionally recorded on 
something tangible, such as paper, computer, electronic storage device, 
or any other medium.
    (b) Notice to a specific addressee. Where notice is directed to a 
specific addressee, VA satisfies its notice obligation by transmitting, 
to the addressee's last address of record for the means of transmission 
used, either:
    (1) The required notice content; or
    (2) An alert.
    (c) Nondecisional notice. Except as otherwise provided, 
nondecisional notice may be transmitted orally or in writing.
    (d) Decisional notice. (1) In cases where the addressee has not 
elected to receive decisional notice electronically, VA will mail the 
notice content.
    (2) In cases where the addressee has elected to receive decisional 
notice electronically, VA will either:
    (i) Transmit either of the communications described in paragraph 
(b) of this section through electronic means; or
    (ii) Mail the notice content.
    (3) An addressee elects to receive decisional notice electronically 
by selecting the option for electronic decision notice within a VA web-
based system that solicits such elections, or through other means 
prescribed by the Secretary and published in the notice section of the 
Federal Register.
    (4) An addressee revokes a prior election to receive decisional 
notice electronically by making the appropriate selection within a VA 
web-based system that solicits such revocations, or through other means 
prescribed by the Secretary and published in the notice section of the 
Federal Register.

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity 
Compensation

0
5. The authority citation for part 3, subpart A, continues to read as 
follows:

    Authority: 38 U.S.C. 501(a), unless otherwise noted.


 Sec.  3.1   [Amended]

0
6. Amend Sec.  3.1 by removing and reserving paragraph (q).
0
7. Amend Sec.  3.103 by revising paragraph (f) and adding paragraph (g) 
to read as follows:


Sec.  3.103  Procedural due process and other rights.

* * * * *
    (f) Notification of decisions. The claimant or beneficiary and his 
or her representative will be notified in writing of decisions 
affecting the payment of benefits or granting of relief. The notice 
document or enclosures or attachments or a combination thereof must 
include:
    (1) Identification of the issues adjudicated;
    (2) A summary of the evidence considered;
    (3) A summary of the laws and regulations applicable to the claim;
    (4) A listing of any findings made by the adjudicator that are 
favorable to the claimant under Sec.  3.104(c);
    (5) For denied claims, identification of the element(s) required to 
grant the claim(s) that were not met;
    (6) If applicable, identification of the criteria required to grant 
service connection or the next higher-level of compensation;
    (7) An explanation of how to obtain or access evidence used in 
making the decision; and
    (8) A summary of the applicable review options under Sec.  3.2500 
available for the claimant to seek further review of the decision.
    (g) Furnishing of notice. VA will furnish the written notice 
described in paragraph (f) of this section in accordance with 
Sec. Sec.  1.525(d)(5) and 1.711(d) of this chapter.


Sec.  3.105  [Amended]

0
8. Amend Sec.  3.105, in paragraphs (d) through (h), by removing the 
words ``at his or her latest address of record''.
0
9. Amend Sec.  3.110 by revising paragraph (b) to read as follows:


Sec.  3.110  Computation of time limit.

* * * * *
    (b) The first day of the specified period referred to in paragraph 
(a) of this section shall be the date VA sent the communication 
described in Sec.  1.711(b) of this chapter. For written notice, the 
date of the document containing the notice content shall be considered 
the date VA sent the communication described in Sec.  1.711(b) of this 
chapter for purposes of computing time limits. As to appeals, see 
Sec. Sec.  19.52, 20.203, and 20.110 of this chapter.


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

Sec.  3.114  [Amended]

0
10. Amend Sec.  3.114, in paragraph (b), by removing the words ``at his 
or her last address of record''.


Sec.  3.150  [Amended]

0
11. Amend Sec.  3.150, in paragraph (b), by removing the words ``in 
letters'' and adding in their place the word ``when''.


Sec.  3.905  [Amended]

0
12. Amend Sec.  3.905, in paragraph (b), by removing the words ``sent 
to the person's latest address of record'' and adding in their place 
the words ``sent to the person's latest address of record for the means 
of communication used''.
0
13. Amend Sec.  3.1010, in paragraph (f)(3), by removing the word 
``mailing'' and adding in its place the word ``issuance''.

Subpart D--Universal Adjudication Rules That Apply to Benefit 
Claims Governed by Part 3 of This Title


Sec.  3.2600  [Amended]

0
14. Amend Sec.  3.2600, in paragraph (b), by removing the word 
``mails'' and adding in their place the word ``issues'' wherever they 
appear.

PART 13--FIDUCIARY ACTIVITIES

0
15. The authority citation for part 13 continues to read as follows:

    Authority:  38 U.S.C. 501, 5502, 5506-5510, 6101, 6106-6108, and 
as noted in specific sections.


Sec.  13.20  [Amended]

0
16. Revise Sec.  13.20 by removing the definition of ``Written 
notice''.


Sec.  13.300  [Amended]

0
17. Amend Sec.  13.300, in paragraph (c)(3), by removing the word 
``mails''

[[Page 36269]]

and adding in its place the word ``issues''.


Sec.  13.400  [Amended]

0
18. Amend Sec.  13.400, in paragraphs (d)(1)(i) and (ii), by removing 
the word ``mailed'' and adding in its place the word ``issued''.
0
19. Amend Sec.  13.600 by adding paragraph (b)(3) to read as follows:


Sec.  13.600  Appeals.

* * * * *
    (b) * * *
    (3) Notice of a decision that is appealable to the Board pursuant 
to paragraph (a) of this section:
    (i) Will be transmitted in accordance with Sec. Sec.  1.525(d)(5) 
and 1.711(d) of this chapter; and
    (ii) Will include:
    (A) A clear statement of decision;
    (B) The reason(s) for the decision;
    (C) A summary of the evidence considered in reach the decision; and
    (D) The necessary procedures and time limits to initiate an appeal 
of the decision.

PART 19--BOARD OF VETERANS' APPEALS: LEGACY APPEALS REGULATIONS

Subpart B--Legacy Appeals and Legacy 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. Amend Sec.  19.24 by revising paragraph (b)(3)(ii) to read as 
follows:


Sec.  19.24  Action by agency of original jurisdiction on Notice of 
Disagreement required to be filed on a standardized form.

* * * * *
    (b) * * *
    (3) * * *
    (i) * * *
    (ii) One year from the date of issuance of notice of the decision 
of the agency of original jurisdiction.
* * * * *
0
22. Amend Sec.  19.26 by revising paragraph (b) and (c)(1)(ii) to read 
as follows:


Sec.  19.26  Action by agency of original jurisdiction on Notice of 
Disagreement.

* * * * *
    (b) Unclear communication or disagreement. If within one year after 
issuing an adverse decision (or 60 days for simultaneously contested 
claims), the AOJ receives a written communication expressing 
dissatisfaction or disagreement with the adverse decision, but the AOJ 
cannot clearly identify that communication as expressing an intent to 
appeal, or the AOJ cannot identify which denied claim(s) the claimant 
wants to appeal, then the AOJ will contact the claimant to request 
clarification of the claimant's intent. This contact may be either oral 
or written. For oral contacts, VA will contact whoever filed the 
communication. VA will make a written record of any oral clarification 
request conveyed to the claimant including the date of the adverse 
decision involved and the response. In any request for clarification, 
the AOJ will explain that if a response to this request is not received 
within the time period described in paragraph (c) of this section, the 
earlier, unclear communication will not be considered an NOD as to any 
adverse decision for which clarification was requested.
    (c) * * *
    (1) * * *
    (i) * * *
    (ii) One year after the date of issuance of notice of the adverse 
decision being appealed (60 days for simultaneously contested claims).
* * * * *


Sec.  19.32  [Amended]

0
23. Amend Sec.  19.32 by removing the words ``1-year'' and adding in 
their place the words ``one-year''.
0
24. Amend Sec.  19.52 by revising paragraphs (a), (b)(1), and (b)(2)(i) 
and (ii) to read as follows:


Sec.  19.52  Time limit for filing Notice of Disagreement, Substantive 
Appeal, and response to Supplemental Statement of the Case.

    (a) Notice of Disagreement. Except in the case of simultaneously 
contested claims, a claimant, or his or her representative, must file a 
Notice of Disagreement with a determination by the agency of original 
jurisdiction within one year from the date of issuance of the 
communication notifying the claimant of the determination. Otherwise, 
that determination will become final. The date of issuance of the 
determination will be presumed to be the same as the date of that 
communication for purposes of determining whether an appeal has been 
timely filed.
    (b) * * *
    (1) General. Except in the case of simultaneously contested claims, 
a Substantive Appeal must be filed within 60 days from the date that 
the agency of original jurisdiction mails the Statement of the Case, or 
within the remainder of the one-year period from the date of mailing of 
the determination being appealed was issued, whichever period ends 
later. The date notice of mailing of the Statement of the Case will be 
presumed to be the same as the date of the Statement of the Case and 
the date of issuance of notice of the determination will be presumed to 
be the same as the date of that communication for purposes of 
determining whether an appeal has been timely filed.
    (2) * * *
    (i) A claimant submits additional evidence within one year of the 
date of issuance of the determination being appealed was issued; and
    (ii) That evidence requires, in accordance with Sec.  19.31 of this 
chapter, that the claimant be furnished a Supplemental Statement of the 
Case, then the time to submit a Substantive Appeal shall end not sooner 
than 60 days after such Supplemental Statement of the Case is mailed to 
the appellant, even if the 60-day period extends beyond the expiration 
of the one-year appeal period.
* * * * *

PART 20--BOARD OF VETERANS' APPEALS: RULES OF PRACTICE

0
25. The authority citation for part 20 continues to read as follows:

    Authority:  38 U.S.C. 501(a), unless otherwise noted.

Subpart B--The Board

0
26. Amend Sec.  20.104 by revising paragraph (c) to read as follows:


Sec.  20.104   Rule 104. Jurisdiction of the Board.

* * * * *
    (c) Authority to determine jurisdiction. The Board shall decide all 
questions pertaining to its jurisdictional authority to review a 
particular case. When the Board, on its own initiative, raises a 
question as to a potential jurisdictional defect, all parties to the 
proceeding and their representative(s), if any, will be given notice of 
the potential jurisdictional defect(s) and granted a period of 60 days 
following the date on which such notice is issued to present written 
argument and additional evidence relevant to jurisdiction and to 
request a hearing to present oral argument on the jurisdictional 
question(s). The Board may dismiss any case over which it determines it 
does not have jurisdiction.
* * * * *
0
27. Amend Sec.  20.110 by revising paragraphs (b) and (c) to read as 
follows:


Sec.  20.110  Rule 110. Computation of time limit for filing.

* * * * *

[[Page 36270]]

    (b) Computation of time limit. In computing the time limit for any 
action by a party or representative, the first day of the specified 
period will be excluded and the last day included. Where the time limit 
would expire on a Saturday, Sunday, or legal holiday, the next 
succeeding workday will be included in the computation.
    (c) Date of issuance. Where the time period runs from the date VA 
provides notice, the first day of the specified period referred to in 
paragraph (b) of this section shall be the date VA sent the 
communication described in Sec.  1.711(b) of this chapter. For written 
notice, the date of the document containing the notice content shall be 
considered the date VA sent the communication described in Sec.  
1.711(b) of this chapter for purposes of computing time limits.

Subpart C--Commencement and Filing of Appeals


Sec.  20.202  [Amended]

0
28. Amend Sec.  20.202 by:
0
a. In paragraph (c)(2), removing the word ``mails'' and adding in its 
place the word ``issues'';
0
b. In paragraph (f), removing the word ``mailing'' and adding in its 
place the words ``issuance of notice of''; and
0
c. In paragraph (g)(1)(ii), removing the word ``mailing'' and adding in 
its place the word ``issuance''.


Sec.  20.203  [Amended]

0
29. Amend Sec.  20.203, in paragraph (b), removing the word ``mails'' 
and adding in its place the word ``issues'' and removing the last 
sentence.

Subpart E--Appeal in Simultaneously Contested Claims


Sec.  20.402  [Amended]

0
30. Amend Sec.  20.402 by:
0
a. In the first sentence, removing the word ``mailing'' and adding in 
its place the word ``issuance''; and
0
b. Removing the last sentence.


Sec.  20.404  [Amended]

0
31. Amend Sec.  20.404 by removing the last sentence.


Sec.  20.406  [Amended]

0
32. Amend Sec.  20.406 by removing the words ``last address of record'' 
and adding in their place the words ``last address of record for the 
means of transmission used''.

Subpart F--Legacy Appeal in Simultaneously Contested Claims

0
33. Revise Sec.  20.502 to read as follows:


Sec.  20.502  Rule 502. Time limits for filing Notice of Disagreement, 
Substantive Appeal, and response to Supplemental Statement of the Case 
in simultaneously contested claims.

    (a) Notice of Disagreement. In simultaneously contested claims, the 
Notice of Disagreement from the person adversely affected must be filed 
within 60 days from the date of issuance of the notification of the 
determination to him or her; otherwise, that determination will become 
final.
    (b) Substantive Appeal. In the case of simultaneously contested 
claims, a Substantive Appeal must be filed within 30 days from the date 
of mailing of the Statement of the Case.
    (c) Supplemental Statement of the Case. Where a Supplemental 
Statement of the Case is furnished by the agency of original 
jurisdiction in a simultaneously contested claim, a period of 30 days 
from the date of mailing of the Supplemental Statement of the Case will 
be allowed for response, but the receipt of a Supplemental Statement of 
the Case will not extend the time allowed for filing a Substantive 
Appeal as set forth in paragraph (b) of this section. Provided a 
Substantive Appeal has been timely filed in accordance with paragraph 
(b) of this section, the response to a Supplemental Statement of the 
Case is optional and is not required for the perfection of an appeal.


Sec.  20.503  [Amended]

0
34. Amend Sec.  20.503 by removing the last sentence.


Sec.  20.505  [Amended]

0
35. Amend Sec.  20.505 by removing the words ``last address of record'' 
and adding in their place the words ``last address of record for the 
means of transmission used''.

Subpart H--Hearings on Appeal


Sec.  20.709  [Amended]

0
36. Amend Sec.  20.709, in paragraph (h)(3), by removing the word 
``mailed'' and adding in its place the word ``issued''.


Sec.  20.711  [Amended]

0
37. Amend Sec.  20.711, in paragraph (b)(2)(i) by removing the words 
``the letter of notification'' and adding in their place the words 
``issuance of notice''.


Sec.  20.714  [Amended]

0
38. Amend Sec.  20.714 by removing the word ``mailed'' and adding in 
its place the word ``issued''.


Sec.  20.715  [Amended]

0
39. Amend Sec.  20.715, in paragraph (a)(2), by removing the word 
``mailing'' and adding in its place the word ``issuance''.
0
40. Amend Sec.  20.801 by adding paragraph (d) to read as follows:


Sec.  20.801  Rule 801. The decision.

* * * * *
    (d) Notice. Notice of a decision will be transmitted in accordance 
with Sec. Sec.  1.525(d)(5) and 1.711(d) of this chapter.

(Authority: 38 U.S.C. 7104)

Sec.  20.804  [Amended]

0
41. Amend Sec.  20.804, in paragraph (c), by removing the last 
sentence.

Subpart J--Action by the Board in Legacy Appeals

0
42. Amend Sec.  20.903 by adding paragraph (d) to read as follows:


Sec.  20.903  Rule 903. The decision.

* * * * *
    (d) Notice. Notice of a decision will be transmitted in accordance 
with Sec. Sec.  1.525(d)(5) and 1.711(d) of this chapter.

(Authority: 38 U.S.C. 7104)

Sec.  20.908  [Amended]

0
43. Amend Sec.  20.908 by:
0
a. In paragraph (a), removing the last sentence; and
0
b. In paragraph (b)(1), removing the last sentence.

Subpart K--Vacatur and Reconsideration


Sec.  20.1002  [Amended]

0
44. Amend Sec.  20.1002(c)(2) by:
0
a. In the first sentence, removing the words ``mailing of the letter of 
notification'' and adding in their place the words ``issuance of 
notice''; and
0
b. Removing the second sentence.

Subpart L--Finality

0
45. Amend Sec.  20.1100 by revising paragraph (a) to read as follows:


Sec.  20.1100  Rule 1100. Finality of decisions of the Board.

    (a) General. Unless the Chairman of the Board orders 
reconsideration, and with the exception of matters listed in paragraph 
(b) of this section, all Board decisions are final on the date of 
notice of the decision. With the exception of matters listed in 
paragraph (b) of this section, the decision rendered by the 
reconsideration Panel in an appeal in which the Chairman has ordered 
reconsideration is final.
* * * * *

[[Page 36271]]

Subpart N--Miscellaneous

0
46. Amend Sec.  20.1305 by revising paragraphs (a) and (d) to read as 
follows:


Sec.  20.1305  Rule 1305. Procedures for legacy appellants to request a 
change in representation, personal hearing, or submission of additional 
evidence following certification of an appeal to the Board of Veterans' 
Appeals.

    (a) Request for a change in representation, request for a personal 
hearing, or submission of additional evidence within 90 days following 
notification of certification and transfer of records. An appellant in 
a legacy appeal, as defined in Sec.  19.2 of this chapter, and his or 
her representative, if any, will be granted a period of 90 days 
following the date of issuance of notice to them that an appeal has 
been certified to the Board for appellate review and that the appellate 
record has been transferred to the Board, or up to and including the 
date the appellate decision is promulgated by the Board, whichever 
comes first, during which they may submit a request for a personal 
hearing, additional evidence, or a request for a change in 
representation. Any such request or additional evidence should be 
submitted directly to the Board and not to the agency of original 
jurisdiction. If any such request or additional evidence is submitted 
to the agency of original jurisdiction instead of to the Board, the 
agency of original jurisdiction must forward it to the Board in 
accordance with Sec.  19.37(b) of this chapter. Any evidence which is 
submitted at a hearing on appeal which was requested during such period 
will be considered to have been received during such period, even 
though the hearing may be held following the expiration of the period. 
Any pertinent evidence submitted by the appellant or representative is 
subject to the requirements of paragraph (d) of this section if a 
simultaneously contested claim is involved.
* * * * *
    (d) Simultaneously contested claims. In simultaneously contested 
claims, if pertinent evidence which directly affects payment, or 
potential payment, of the benefit sought is submitted by any claimant 
and is accepted by the Board under the provisions of this section, the 
substance of such evidence will be issued to each of the other 
claimants who will then have 60 days from the date of issuance of 
notice of the new evidence within which to comment upon it and/or 
submit additional evidence in rebuttal. For matters over which the 
Board does not have original jurisdiction, a waiver of initial agency 
of original jurisdiction consideration of pertinent additional evidence 
received by the Board must be obtained from each claimant in accordance 
with paragraph (c) of this section. No further period will be provided 
for response to such comment or rebuttal evidence.
* * * * *

Subpart O--Revision of Decisions on Grounds of Clear and 
Unmistakable Error

0
47. Amend Sec.  20.1405 by revising paragraphs (e) and (f) to read as 
follows:


Sec.  20.1405  Rule 1405. Disposition.

* * * * *
    (e) General Counsel opinions. The Board may secure opinions of the 
General Counsel in connection with a motion under this subpart. In such 
cases, the Board will notify the party and his or her representative, 
if any. When the opinion is received by the Board, a copy of the 
opinion will be furnished to the party's representative or, subject to 
the limitations provided in 38 U.S.C. 5701(b)(1), to the party if there 
is no representative. A period of 60 days from the date a copy of the 
opinion was furnished will be allowed for response.
    (f) Decision. The decision of the Board on a motion under this 
subpart will be in writing. The decision will include separately stated 
findings of fact and conclusions of law on all material questions of 
fact and law presented on the record, the reasons or bases for those 
findings and conclusions, and an order granting or denying the motion. 
Notice of the decision will be transmitted in accordance with 
Sec. Sec.  1.525(d)(5) and 1.711(d) of this chapter.
0
48. Revise Sec.  20.1408 to read as follows:


Sec.  20.1408  Rule 1408. Special rules for simultaneously contested 
claims.

    In the case of a motion under this subpart to revise a final Board 
decision in a simultaneously contested claim, as that term is used in 
Rule 3(l) (Sec.  20.3(l)), a copy of such motion shall, to the extent 
practicable, be issued to all other contesting parties. Other parties 
have a period of 30 days from the date of issuance of the copy of the 
motion to file a brief or argument in answer. Notices in simultaneously 
contested claims will be forwarded to the last address of record for 
the means of transmission used of the parties concerned and such action 
will constitute sufficient evidence of notice.
0
49. Amend Sec.  20.1409 by revising paragraph (a) to read as follows:


Sec.  20.1409  Rule 1409. Finality and appeal.

    (a) A decision on a motion filed by a party or initiated by the 
Board pursuant to this subpart is final on the date of notice of the 
decision.
* * * * *
[FR Doc. 2023-11361 Filed 6-1-23; 8:45 am]
BILLING CODE 8320-01-P