Claim-related Documents Or Supporting Evidence Not Of Record

[Wings]

[Federal Register: November 12, 2009 (Volume 74, Number 217)]

[Proposed Rules]

[Page 58232-58234]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr12no09-17]

[[Page 58232]]

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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AN33

Claim-Related Documents or Supporting Evidence Not of Record

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to add a new

section to its adjudication regulations to establish temporary VA

procedures for when claimants allege the submission of claim-related

documents or evidence in support of a claim during the time period of

April 14, 2007, through October 14, 2008, and such documents or

evidence are not of record in the official VA file.

DATES: Comments must be received by VA on or before January 11, 2010.

ADDRESSES: Written comments may be submitted through ``http://

www.Regulations.gov;'' by mail or hand-delivery to Director, Regulation

Policy and Management (02REG), Department of Veterans Affairs, 810

Vermont Ave., NW., Room 1068, Washington, DC 20042; or by fax to (202)

273-9026. Comments should indicate that they are submitted in response

to ``RIN 2900-AN33--Claim-Related Documents or Supporting Evidence Not

of Record.'' Copies of comments received will be available for public

inspection in the Office of Regulation Policy and Management, Room

1063B, between the hours of 8 a.m. and 4:30 p.m., Monday through Friday

(except holidays). Please call (202) 461-4923 for an appointment (this

is not a toll-free number). In addition, during the comment period,

comments may be viewed online through the Federal Docket Management

System (FDMS) at ``http://www.Regulations.gov.''

FOR FURTHER INFORMATION CONTACT: Thomas J. Kniffen, Chief, Regulations

Staff (211D), Compensation and Pension Service, Veterans Benefits

Administration, Department of Veterans Affairs, 810 Vermont Ave., NW.,

Washington, DC 20420, (202) 461-9725 (This is not a toll-free number).

SUPPLEMENTARY INFORMATION: On August 20, 2008, VA's Office of Inspector

General (OIG) initiated an audit of select Veterans Benefits

Administration (VBA) regional office (RO) mail processing procedures.

VBA receives and processes approximately 25 million documents each

year. The OIG audit team examined mail-handling activities and the

activity that places claims under electronic control in four ROs. The

audit team found 36 pieces of active mail and 93 original support

documents improperly designated for destruction by shredding. Documents

identified as designated for destruction included, among other things,

the following: VA Form 21-526, Veteran's Application for Compensation

and/or Pension; VA Form 21-686c, Declaration of Status of Dependents;

VA Form 21-674, Request for Approval of School Attendance; and

documents constituting informal claims.

VA recognizes that the OIG's findings may have been indicative of a

document-handling or shredding problem affecting numerous ROs at the

time of the OIG audit and that this problem may have adversely impacted

some veterans. In response to these findings, the Secretary suspended

all document-shredding activities and provided new guidance and

training to all RO personnel regarding the handling and shredding of

claim-related documents and evidence in support of a claim. The

Secretary also decided to establish temporary claims-handling

procedures for veterans who allege that they submitted claim-related

documents or evidence in support of a claim during the time period of

April 14, 2007, through October 14, 2008, that are not of record in

official VA files. This rule would codify the temporary claims-handling

procedures, which include a relaxed evidentiary standard for the

adjudication of claims involving alleged submissions of documents or

evidence during this 18-month time period. These temporary procedures

would reflect VA's pro-veteran response to the OIG's findings of

improper document handling and control at the ROs.

October 14, 2008, is the date on which the Secretary suspended all

document-shredding activities following the OIG audit. To ensure that

claimants who may have been affected by the former document shredding

activities have an opportunity to make assertions regarding missing

documents, we propose to establish an 18-month time period from April

14, 2007, through October 14, 2008, during which affected claimants may

receive the benefit of certain liberalized procedures. As we describe

in greater detail below, the proposed 18-month period is based upon

VA's claims adjudication experience. With regard to lost claims or

applications for benefits, based on our experience, VA takes on average

6 months to process a claim. VA added an additional 12 months to

reflect a reasonable amount of time for a claimant to learn that a

submitted claim-related document may have been lost or mishandled by

the RO.

With regard to lost evidence in support of a claim, the RO most

likely would have issued a decision or a supplemental statement of the

case within 18 months from the date of the alleged submission of

evidence. Because the RO is required to summarize the evidence that it

considered in denying a claim for benefits (38 U.S.C. 5104(b)(2)), a

decision would have revealed that the RO had not considered the alleged

submitted evidence. Also, the RO is required to address in a

supplemental statement of the case new evidence submitted subsequent to

the filing of a statement of the case (38 CFR 19.31(b)).

With regard to lost notices of disagreement, the RO is required to

issue a statement of the case (38 U.S.C. 7105(d)) and usually does so

within a year after receiving a notice of disagreement. With regard to

lost substantive appeals, the Board, as a matter of practice soon after

the processing of a formal appeal, will notify a claimant that an

appeal has been certified to the Board for appellate review and that

the appellate record has been transferred to the Board (38 CFR

20.1304(a)).

Thus, we believe that, if a veteran contends that he or she

submitted a claim-related document or evidence in support of a claim

before April 14, 2007, the veteran reasonably would have inquired about

the document submission or would have been informed of its misplacement

or destruction within 18 months from the asserted date of submission,

or prior to October 14, 2008.

We are particularly interested in comments regarding the proposed

establishment of the 18-month period of April 14, 2007, through October

14, 2008, for an alleged submission of a claim-related document or

evidence that is missing from official VA files for which VA will

consider the asserted date of submission as the actual date of

submission.

This rule would require a claimant to notify the RO within one year

of the effective date of the final rule implementing the temporary

claims handling procedures of an alleged submission during the 18-month

period of April 14, 2007, through October 14, 2008. The one-year

deadline reasonably gives claimants time to inform ROs of alleged

submissions during the 18-month period and would be consistent with the

12-month time period given to claimants to file a Notice of

Disagreement. After the expiration of this one-year period, VA would

amend its regulations to remove the obsolete provisions in proposed

Sec. 3.218.

[[Page 58233]]

For claims allegedly submitted between April 14, 2007, and October

14, 2008, the effective date would be established in accordance with

the date asserted by the claimant as the date on which the Secretary

received the claim.

In general practice, when a claimant asserts the submission of a

claim-related document or evidence in support of a claim that was not

of record in the official VA file, VA requests the claimant to submit

any available secondary evidence that would support the alleged

previous submission. For example, VA would ask a claimant to submit a

copy of the claim-related document or evidence date stamped by VA or

the claimant's representative, or a dated transmittal or cover sheet

from the claimant or claimant's representative relating to the

pertinent document, together with copies of any documents that were

included with the alleged previous submission. Accordingly, if a

claimant asserts that a document was originally filed before April 14,

2007, or after October 14, 2008 (or if a claimant asserts after the

one-year period following the effective date of the final rule that a

document was originally filed during the time period of April 14, 2007,

through October 14, 2008) and such document is not of record in

official VA files, VA would ask the claimant to submit similar

secondary evidence to support the alleged previous submission,

consistent with VA's general practice. If entitlement to benefits is

established under this scenario, VA would assign an effective date in

accordance with the facts found based on credible corroborating

evidence submitted by the claimant and applicable laws and regulations.

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 an expenditure by

State, local, and tribal governments, in the aggregate, or by the

private sector, of $100 million or more (adjusted annually for

inflation) in any given year. This rule would have no such effect on

State, local, and tribal governments, or on the private sector.

Executive Order 12866

Executive Order 12866 directs agencies to assess all 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,

and other advantages; distributive impacts; and equity). The Executive

Order classifies a ``significant regulatory action'' requiring review

by the Office of Management and Budget, as any regulatory action that

is likely to result in a rule that may: (1) Have an annual effect on

the economy of $100 million or more or adversely affect in a material

way the economy, a sector of the economy, productivity, competition,

jobs, the environment, public health or safety, or State, local, or

tribal governments or communities; (2) create a serious inconsistency

or interfere with an action taken or planned by another agency; (3)

materially alter the budgetary impact of entitlements, grants, user

fees, or loan programs or the rights and obligations of entitlement

recipients; or (4) raise novel legal or policy issues arising out of

legal mandates, the President's priorities, or the principles set forth

in the Executive Order.

VA has examined the economic, interagency, budgetary, legal, and

policy implications of this proposed rule and has concluded that it is

a significant regulatory action under Executive Order 12866 because it

is likely to result in a rule that may raise novel legal or policy

issues arising out of legal mandates, the President's priorities, or

the principles set forth in the Executive Order.

Paperwork Reduction Act

This document contains no provisions constituting a new collection

of information under the Paperwork Reduction Act of 1995 (44 U.S.C.

3501-3521).

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. The rule could affect only VA beneficiaries and would

not directly affect small entities. Therefore, pursuant to 5 U.S.C.

605(b), this rule would be exempt from the initial and final regulatory

flexibility analyses requirements of sections 603 and 604.

Catalog of Federal Domestic Assistance

The Catalog of Federal Domestic Assistance program numbers and

titles for this rule are as follows: 64.104, Pension for Non-Service-

Connected Disability for Veterans; 64.105, Pension to Veterans,

Surviving Spouses, and Children; 64.109, Veterans Compensation for

Service-Connected Disability; and 64.110, Veterans Dependency and

Indemnity Compensation for Service-Connected Death.

List of Subjects in 38 CFR part 3

Administrative practice and procedure, Claims, Disability benefits,

Health care, Pensions, Radioactive materials, Veterans, Vietnam.

Approved: August 11, 2009.

John R. Gingrich,

Chief of Staff, Department of Veterans Affairs.

For the reasons set forth in the preamble, the Department of

Veterans Affairs proposes to amend 38 CFR part 3 as follows:

PART 3--ADJUDICATION

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

Compensation

1. The authority citation for part 3, subpart A continues to read

as follows:

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

2. Add Sec. 3.218 to read as follows:

Sec. 3.218 Claim-Related Documents or Supporting Evidence Not of

Record.

(a) Submissions during the time period of April 14, 2007, through

October 14, 2008. If a claimant or claimant's representative asserts

that a claim-related document or evidence in support of a claim was

originally filed with VA during the time period of April 14, 2007,

through October 14, 2008, and such document or evidence is missing from

official VA files, VA will consider the asserted date of submission as

the actual date of submission. VA will apply procedures under this

section only for assertions made before the end of the 1-year period

following [EFFECTIVE DATE OF FINAL RULE].

(b) Additional requirements and procedures for alleged submissions

under paragraph (a). (1) If the claimant's assertion refers to an

original claim, a claim for increased benefits, or a claim for

reopening, the claimant must submit either a copy of the previously

submitted claim form or a new claim form. VA will provide the claimant

with assistance and notification of the required evidence and

information upon receipt of a substantially complete application, as

necessary under Sec. 3.159 of this part, and will develop the claim

pursuant to existing procedures.

(2) If the claimant's assertion refers to evidence in support of a

claim, the claimant must identify the claim to which the evidence

pertains and submit a copy of the evidence, or, if the evidence is no

longer available, a description of such evidence or a completed VA Form

21-4142.

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(3) If the claimant's assertion refers to a document relating to

the appeal of an administrative decision, such as a notice of

disagreement or substantive appeal, VA will follow proper appeal

procedures based on date of receipt of the document, as determined

under this section.

(4) If the only issue raised by the claimant's assertion concerns

the effective date of an award for benefits for a claim already

decided, VA will establish the proper effective date without additional

development.

© Effective dates. For claims allegedly submitted between April

14, 2007, and October 14, 2008, the effective date will be established

in accordance with the date asserted by the claimant as the date on

which the Secretary received the claim.

(Authority: 38 U.S.C. 501(a)(1))

[FR Doc. E9-27077 Filed 11-10-09; 8:45 am]