[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