[Federal Register: June 30, 2005 (Volume 70, Number 125)]
[Proposed Rules]
[Page 37723-37726]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30jn05-29]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 19
RIN 2900-AL97
Board of Veterans' Appeals: Clarification of a Notice of
Disagreement
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its
regulations governing appeals to the Board of Veterans' Appeals (Board)
to clarify the actions an agency of original jurisdiction must take to
determine whether a written communication from a claimant that is
ambiguous in its purpose is intended to be a Notice of Disagreement
with an adverse claims decision.
DATES: Comments must be received on or before August 29, 2005.
ADDRESSES: Written comments may be submitted by: mail or hand-delivery
to Director, Regulations Management (00REG1), Department of Veterans
Affairs, 810 Vermont Ave., NW., Room 1068, Washington, DC 20420; fax to
(202) 273-9026; e-mail to VAregulations@mail.va.gov; or, through http://www.regulations.gov.
Comments should indicate that they are submitted
in response to ``RIN 2900-AL97.'' All 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) 273-9515 for
an appointment.
FOR FURTHER INFORMATION CONTACT: Steven L. Keller, Senior Deputy Vice
Chairman, Board of Veterans' Appeals (012), Department of Veterans
Affairs, 810 Vermont Avenue, NW., Washington, DC 20420 (202-565-5978).
SUPPLEMENTARY INFORMATION: The Board is the component of VA that
decides appeals from denials of claims for veterans' benefits rendered
by VA agencies of original jurisdiction. The Board is under the
administrative control and supervision of a Chairman directly
responsible to the Secretary of Veterans Affairs. 38 U.S.C. 7101.
An agency of original jurisdiction (AOJ) makes the initial decision
on a claim for VA benefits. An AOJ is typically one of VA's 57 regional
offices in the case of benefits administered by the Veterans Benefits
Administration (VBA), or a VA Medical Center in the case of benefits
administered by the Veterans Health Administration (VHA). A claimant
who wishes to appeal the AOJ's decision to the Board must file a timely
Notice of Disagreement (NOD) with the AOJ that decided the claim. We
propose an amendment to the rules governing NODs to clarify the actions
an AOJ must take to determine whether a written communication received
from a claimant, which is ambiguous in its purpose, is intended to be
an NOD.
[[Page 37724]]
When a claimant files a written communication that meets the
requirements of 38 CFR 20.201, that communication is an NOD. The AOJ
must respond to the NOD by reviewing the claim and determining whether
additional development of the evidence to substantiate the claim is
warranted. If the AOJ cannot grant the claim after this review and
development process, it issues a Statement of the Case (SOC) to the
claimant, identifying and summarizing the evidence pertinent to the
decision on the issue(s) with which the claimant has expressed
disagreement. The SOC also provides the claimant with a citation to the
laws and regulations that govern the decision made on the claim, and
explains how those laws were applied to the facts of the claim. See 38
U.S.C. 7105(d)(1). The SOC is issued to assist the claimant in
preparing his or her substantive appeal. See 38 CFR 19.29.
On occasion, an AOJ receives from a claimant a written statement
that is unclear as to whether the claimant seeks to initiate an appeal
from an adverse AOJ decision, or only a portion of an adverse AOJ
decision, or one of several AOJ decisions. Difficulty in interpreting a
document is particularly likely to occur when the AOJ has denied
multiple claims in one decision document. Currently, 38 CFR 19.26
requires the AOJ to contact a claimant to request clarification if an
NOD ``is received following a multiple-issue determination and it is
not clear which issue, or issues, the claimant desires to appeal.'' We
propose to amend 38 CFR 19.26 to require the AOJ to contact the
claimant if the AOJ is uncertain as to whether the claimant intends to
initiate the appellate process by the submission of a document which is
not clear as to this intent on its face.
We propose to designate the first sentence of current Sec. 19.26
as Sec. 19.26(a), and to reorganize and rewrite the remaining
sentences as separate paragraphs in order to distinguish the different
elements of the regulation.
We propose to restate the second sentence of current Sec. 19.26
with additional explanation, and designate it as Sec. 19.26(b). In
this paragraph (b), we propose to state that if the AOJ receives a
written communication from a claimant that leaves the AOJ uncertain as
to whether the claimant intends to initiate the appellate process, or
as to which of multiple adverse determinations the claimant wishes to
appeal, the AOJ must contact the claimant, and the claimant's
representative, if any, to request clarification. The AOJ would also
inform the claimant that VA will not consider the unclear communication
to be an NOD unless the claimant timely responds as described in Sec.
19.26(c). Proposed Sec. 19.26(b) would apply in cases where the AOJ
has denied one claim, and where the AOJ has made ``multiple-issue
determination[s],'' whereas the current rule applies only in the latter
case.
With regard to the ``multiple-issue determination[s]'' current
rule, Sec. 19.26 states that ``clarification sufficient to identify
the issue, or issues, being appealed should be requested.'' We propose
to change ``should'' to ``will,'' in order to emphasize the mandatory
nature of the duty. We propose to state in paragraph (b) that VA will
inform the claimant that if the claimant does not respond to the
request for clarification within the time period described in Sec.
19.26(c), the communication from the claimant will not be considered to
be an NOD as to any adverse decision for which clarification was
requested but not obtained.
We propose to establish a limit to the period of time in which the
claimant may respond to a request for clarification. Paragraph (c)
would require the claimant to respond, either orally or in writing, to
the AOJ's request for clarification within the later of the following
two dates: (1) 60 days after the date of mailing of the AOJ's request
for clarification, or (2) one year after the date of mailing of notice
of the adverse decision being appealed (60 days for simultaneously
contested claims). Under 38 U.S.C. 7105(b)(1) claimants have one year
to initiate an appeal (in all but simultaneously contested claims)
after the AOJ issues an initial adverse decision. Thus, the time limit
that we propose would not abridge the statutory period for initiating
an appeal. Moreover, by allowing a response to be alternatively filed
within 60 days after the date the AOJ requests clarification, or within
one year after the date of mailing of notice of the adverse decision
being appealed, we have provided the claimant with a reasonable period
in which to respond in the event VA requests clarification either
within the last 60 days of the one-year appeal period, or later. We
believe that 60 days is a reasonable time frame in which to expect the
claimant to respond.
Because there can only be one valid NOD, the written communication
from the claimant that prompts the AOJ to request clarification will be
considered to be a valid NOD if the claimant subsequently provides the
requested clarification. See Hamilton v. Brown, 39 F3d 1574 (1994)
(holding that there may only be one valid NOD in each appeal). For
purposes of calculating all subsequent filing deadlines, the date of
the single NOD must be the date the first communication indicating
disagreement, albeit ambiguous, is received at the AOJ.
We propose a new paragraph (d), derived from the last sentence of
current Sec. 19.26, which provides that upon receipt of clarification
of the claimant's intent to file an NOD, the AOJ will undertake any
necessary review and development action and prepare a Statement of the
Case pursuant to Sec. 19.29, unless the NOD has been resolved by
granting the benefit(s) sought on appeal or the NOD is withdrawn by the
claimant or his or her representative.
We propose in paragraph (e) to state that references to the
``claimant'' in Sec. 19.26 include reference to the claimant and his
or her representative, if any, as well as to his or her fiduciary, if
any. This paragraph simply provides a short-hand reference for purposes
of readability. We envision that the AOJ will contact any of these
parties when clarification of an NOD is required. Similarly, any may
respond to the request. Once a clarifying response is received from one
of these parties, further contact will not be necessary. Thus multiple
contacts and responses are not required and would likely prove
impractical. Contact for the purpose of seeking clarification would
cease as soon as clarification is received from one of the authorized
parties or when the potential sources for clarification have been
exhausted. Proposed paragraph (e) would not require VA to contact both
the claimant and the representative if, after contacting one of the two
parties, VA is no longer unsure as to whether the claimant had intended
to file an NOD. If, after receiving a response from one of the parties,
VA is still not able to determine whether the document filed was
intended as an NOD, VA will contact another party.
We propose to amend 38 CFR 19.27 only to clarify that the
procedures for an administrative appeal are intended as a remedy in the
event any intra-agency dispute remains after the procedures set forth
in Sec. 19.26 have been followed, as to whether a written
communication expresses an intent to appeal or as to which denied
claims the claimant wants to appeal. We anticipate that administrative
appeals of this nature will occur only rarely.
Unfunded Mandates
The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that
agencies prepare an assessment of anticipated costs and benefits before
developing any rule that may result in an expenditure
[[Page 37725]]
by State, local, or tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any given year. This proposed rule would have no such
effect on State, local, or tribal governments, or the private sector.
Executive Order 12866
This document has been reviewed by the Office of Management and
Budget under Executive Order 12866.
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. Only VA beneficiaries could be directly affected.
Therefore, pursuant to 5 U.S.C. 605(b), this proposed rule is exempt
from the initial and final regulatory flexibility analysis requirements
of sections 603 and 604.
Paperwork Reduction Act
Proposed 38 CFR 19.26, which is set forth in full in the proposed
regulatory text portion of this document, and current 38 CFR 20.201
contain collections of information under the Paperwork Reduction Act of
1995 (44 U.S.C. 3501-3521). These provisions set forth procedures for
initiating an appeal to the Board of Veterans' Appeals, including the
type of information that must be contained in an NOD. As required under
section 3507(d) of the Act, VA has submitted a copy of this proposed
rulemaking action to the Office of Management and Budget (OMB) for its
review of the collection of information.
OMB assigns control numbers to collections of information it
approves. VA may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number.
Title: Notice of Disagreement and Clarification of Notice of
Disagreement.
Summary of collection of information: Under 38 CFR 20.302, a
claimant who wishes to appeal the AOJ's decision to the Board must file
a NOD with the AOJ that decided the claim within one year from the date
that the AOJ mails notice of the determination to him or her. The
provisions of 38 CFR 20.201 require that an NOD must be a written
communication from a claimant or his or her representative expressing
dissatisfaction or disagreement with an adjudicative determination by
the AOJ and a desire to contest the result. Proposed 38 CFR 19.26
provides that AOJs must seek clarification from a claimant if an
unclear communication that may or may not constitute an NOD is
received.
Description of the need for information and proposed use of
information: The first element of a complete appeal to the Board is an
NOD. The NOD is the mechanism that a claimant uses to inform the VA of
his or her dissatisfaction with a decision denying a VA benefit. After
receiving an NOD, VA is required to reexamine the denied claim,
performing additional evidentiary development is warranted. If the
claim cannot be granted at that stage, VA initiates the appellate
processing by issuing a Statement of the Case to the claimant,
informing the claimant of the laws and regulations governing his or her
claim, and the basis for the denial of that claim.
Description of likely respondents: VA benefits claimants who have
received a denial decision from an Agency of Original Jurisdiction.
Estimated number of respondents: 108,931 NODs were filed in fiscal
year 2004. The number of NODs filed in future years will depend upon
the number of dissatisfied claimants who wish to pursue the appellate
process.
Estimated frequency of responses: This information is collected on
a ``one-time'' basis.
Estimated average burden per collection: Respondents have wide
discretion in the amount of time spent in preparing the notice of
disagreement. They may simply identify, in writing, the issues with
which they are in disagreement. Some may add a few sentences explaining
why they are in disagreement. Most respondents use this approach. On
the other hand, a respondent may write several pages explaining why he
or she is in disagreement with the decision. With this in mind, the
Board's best estimate would be that an average of one hour is spent in
preparation of the notice of disagreement.
Estimated total annual reporting and recordkeeping burden: The
estimated total annual reporting burden is approximately 108,931 hours.
This information collection imposes no recordkeeping requirement. There
should be no costs to respondents. No ongoing accumulation of
information, or special purchase of services, supplies or equipment, is
required.
The Department considers comments by the public on proposed
collections of information in:
Evaluating whether the proposed collections of information
are necessary for the proper performance of the functions of the
Department, including whether the information will have practical
utility;
Evaluating the accuracy of the Department's estimate of
the burden of the proposed collections of information, including the
validity of the methodology and assumptions used;
Enhancing the quality, usefulness, and clarity of the
information to be collected; and
Minimizing the burden of the collections of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of responses.
Written comments on the collections of information should be
submitted to Sue Hamlin, Board of Veterans' Appeals (01C), Department
of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, or
e-mail to sue.hamlin@va.gov. Comments should indicate that they are in
response to ``RIN 2900-AL97,'' and must be received on or before August
29, 2005.
Catalog of Federal Domestic Assistance Numbers
There is no Catalog of Federal Domestic Assistance number for this
proposed rule.
List of Subjects in 38 CFR Part 19
Administrative practice and procedure, Claims, Veterans.
Approved: March 22, 2005.
R. James Nicholson,
Secretary of Veterans Affairs.
For the reasons set forth in the preamble, we propose to amend 38
CFR part 19 as follows:
PART 19--BOARD OF VETERANS' APPEALS: APPEALS REGULATIONS
1. The authority citation for part 19 continues to read as follows:
Authority: 38 U.S.C. 501(a), unless otherwise noted.
2. Section 19.26 is revised to read as follows:
Sec. 19.26 Action by agency of original jurisdiction on Notice of
Disagreement.
(a) Initial action. When a claimant files a timely Notice of
Disagreement (NOD), the agency of original jurisdiction (AOJ) must
reexamine the claim and determine whether additional review or
development is warranted.
(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
[[Page 37726]]
communication from the claimant 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. In this request for clarification, the AOJ will
explain that if the claimant does not respond to the request 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) Response required from claimant--(1) Time to respond. The
claimant must respond to the AOJ's request for clarification within the
later of the following dates:
(i) 60 days after the date of mailing of the AOJ's request for
clarification; or
(ii) One year after the date of mailing of notice of the adverse
decision being appealed (60 days for simultaneously contested claims).
(2) Failure to respond. If the claimant fails to provide a timely
response, the previous communication from the claimant will not be
considered an NOD as to any claim for which clarification was
requested. The AOJ will not consider the claimant to have appealed the
decision(s) on any claim(s) as to which clarification was requested and
not received.
(d) Action following clarification. When clarification of the
claimant's intent to file an NOD is obtained, the AOJ will reexamine
the claim and determine whether additional review or development is
warranted. If no further review or development is required, or after
necessary review or development is completed, the AOJ will prepare a
Statement of the Case pursuant to Sec. 19.29 unless the disagreement
is resolved by a grant of the benefit(s) sought on appeal or the NOD is
withdrawn by the claimant.
(e) Definition. For the purpose of the requirements in paragraphs
(a) through (d) of this section, references to the ``claimant'' include
reference to the claimant and his or her representative, if any, as
well as to his or her fiduciary, if any.
(Authority: 38 U.S.C. 501, 7105, 7105A)
3. Section 19.27 is revised to read as follows:
Sec. 19.27 Adequacy of Notice of Disagreement questioned within the
agency of original jurisdiction.
If, after following the procedures set forth in 38 CFR 19.26, there
remains within the agency of original jurisdiction a question as to
whether a written communication expresses an intent to appeal or as to
which denied claims a claimant wants to appeal, the procedures for an
administrative appeal, as set forth in 38 CFR 19.50-19.53, must be
followed.
(Authority: 38 U.S.C. 501, 7105, 7106)
[FR Doc. 05-12864 Filed 6-29-05; 8:45 am]
BILLING CODE 8320-01-U