[Federal Register Volume 73, Number 215 (Wednesday, November 5, 2008)]
[Rules and Regulations]
[Pages 65726-65735]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-26310]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Parts 3 and 20
RIN 2900-AM77
Board of Veterans' Appeals: Expedited Claims Adjudication
Initiative--Pilot Program
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: The Department of Veterans Affairs (VA) is launching an
initiative for accelerated claims and appeals processing at four VA
facilities, based on voluntary participation by eligible claimants. The
purpose of this initiative is to determine whether VA can expedite the
processing of claims and appeals by obtaining claimants' waivers of
certain statutory and regulatory response periods, and by utilizing the
Board of Veterans' Appeals' (Board or BVA) statutory authority to pre-
screen cases. VA's responsibility to fully develop and decide cases in
a fair, accurate, and non-adversarial manner remains unchanged under
this initiative. If this initiative is successful at the four trial
sites, the data obtained may provide a basis for expanding some, or
all, of the program nationwide, and ultimately help accelerate the
processing of all claims and appeals. The parameters of the initiative
are set forth in these regulations.
DATES: Effective Date: The final rule is effective December 5, 2008.
FOR FURTHER INFORMATION CONTACT: Steven L. Keller, Principal Deputy
Vice Chairman, Board of Veterans' Appeals (012), Department of Veterans
Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 461-8078.
(This is not a toll-free number.)
SUPPLEMENTARY INFORMATION: In a document published in the Federal
Register on April 16, 2008 (73 FR 20571), VA proposed to launch an
initiative for accelerated claims and appeals processing at four VA
facilities. This initiative would establish a 2-year pilot program
known as the Expedited Claims Adjudication (ECA) Initiative
(Initiative). The goal of the Initiative would be to determine whether
VA can expedite the claims and appeals process by obtaining claimants'
waivers of certain statutory and regulatory response periods, and by
pre-screening cases at the Board to determine the adequacy of the
record for appellate review. As proposed, participation in the
Initiative would be strictly voluntary, and open to claimants residing
in the jurisdiction of one of the four trial sites. Additionally,
claimants would be required to be represented by a recognized Veterans
Service Organization (VSO) or an accredited agent or attorney at the
time of electing to participate in the Initiative. The ECA Initiative
would be predicated on the claimant agreeing, at the beginning of the
claims process, to waive certain identified statutory and regulatory
time limits and processing actions, which would be carefully outlined
in an ECA Initiative Agreement and Waiver of Rights (ECA Agreement).
ECA participation would be effectuated only if both the claimant and
his or her representative sign the ECA Agreement, certifying that the
claimant has consulted with his or her representative
[[Page 65727]]
to determine if participation in the Initiative is in his or her best
interest.
A claimant's decision to participate in the ECA would be revocable
at any time in the VA claims or appeals process, with no penalty.
Rather, as outlined in the notice of proposed rulemaking, upon express
or implied revocation of ECA participation, the claimant's case would
continue to be processed, from that point forward, using ordinary and
established procedures under current statutes and regulations governing
claims adjudication. In other words, the claimant's case would
essentially continue from the same point in the adjudication process
that it was when it left the ECA.
The public comment period ended on June 16, 2008. VA received
comments from one individual and from three organizations. For the most
part, the comments expressed general disagreement with the basic
structure and purpose of the ECA, and raised concerns about the impact
the ECA would have on VA's workload, particularly accuracy and quality
in decision-making. More specifically, the commenters expressed the
following concerns: (1) The effect of the Initiative on decision
quality; (2) whether the Board has authority to decide ECA claims out
of docket order; (3) time limits under the Initiative; (4) disagreement
with the good cause exception in the Initiative; (5) VA's data
collection under the Initiative; (6) a challenge to the purpose of the
ECA; and, (7) concern over the impact of the ECA on the workload at one
of the trial sites. We will address each of these topics in turn. Based
on the rationale described in this document and in the notice of
proposed rulemaking, VA adopts the proposed rule as revised in this
document.
A. Decision Quality
An underlying theme throughout the four comments was that the ECA
would degrade decision quality and accuracy. One commenter stated that
the Initiative ``appears to elevate speed of adjudication above
adequate evidence development and accuracy of decision-making.'' The
commenter stated that the Initiative ``does violence'' to the
historical non-adversarial and informal nature of the VA adjudication
system. The commenter stated the belief that the Initiative would not
lead to any improvement to the adjudication system as a whole. Rather,
the commenter is ``convinced that the changes the Initiative proposes
will cause the creation of inadequately developed records in claims,
which will result in inaccurate decisions denying benefits'' and
ultimately lead to increased remands in the system to ``undertake
corrective development in covered claims.''
Similarly, another commenter expressed hesitancy to support the ECA
``without a guarantee that the quality of the decision rendered will be
better than that of a claim adjudicated in the normal manner or that
there would be a significant improvement in claims processing time.''
The commenter noted the absence of a quality assurance component for
the ECA. The commenter recommended ``that VA devote its time to
improving the quality of its adjudications rather than creating ways to
circumvent procedural protections.''
We agree that all claimants in the VA adjudication system are
entitled to accurate and legally correct decisions based on a fully-
developed evidentiary record. We respectfully disagree, however, with
the commenters' characterization of the Initiative as promoting speed
of adjudication over adequate evidentiary development and
administrative efficiency over accuracy. We also disagree with the
suggestion that the Initiative would do ``violence'' to the current
system. Rather, we believe that this Initiative is a constructive
attempt to improve efficiency and timeliness in the VA claims
adjudication system.
As discussed in the notice of proposed rulemaking, the essential
premise on which the Initiative is based is that there are many
procedural rights built into the current VA claims adjudication and
appeals process that unnecessarily lengthen the amount of time it takes
to process an initial claim or appeal while cases sit without any
action occurring while waiting for a statutory or regulatory response
period to end. By greatly reducing the amount of time that a case sits
without any action occurring while waiting for one of these response
periods to run, it is the goal of this 2-year Initiative to provide a
model to streamline the claims adjudication and appeals process system
wide. Contrarily, it is not the goal of the Initiative to avoid VA's
responsibilities to fully and adequately develop and decide cases in a
fair and accurate manner, or to change in any other manner the non-
adversarial and informal nature of the VA adjudication system.
With respect to evidentiary development, we emphasize that the
Initiative leaves intact VA's duty to notify claimants of the
information and evidence necessary to substantiate their claims under
38 U.S.C. 5103(a) and 38 CFR 3.159(b)(1), as well as VA's duty to
assist claimants in obtaining evidence necessary to substantiate their
claims under 38 U.S.C. 5103A and 38 CFR 3.159(c). ECA participants will
continue to be provided a notice letter that informs them of the
information and evidence needed to substantiate their claim(s) and
outlines the claimant's and VA's responsibilities for obtaining such
evidence. See 38 U.S.C. 5103(a) and 38 CFR 3.159(b)(1). The Initiative
also leaves unaltered VA's duty to make reasonable efforts to obtain
relevant evidence identified by a claimant, and leaves unchanged VA's
duty to provide claimants with a medical examination or obtain a
medical opinion when necessary to decide a claim. See, e.g., 38 CFR
3.159(c)(4), 3.326, 3.327. These notice and development requirements
are implicitly referenced under Sec. 20.1500(c), which states that any
matter not otherwise covered by this subpart will be governed by
existing rules.
As the Initiative leaves intact VA's duties to notify and assist,
we cannot agree with the commenters' suggestion that the Initiative
contains no provision that would ensure that VA adjudicators have a
complete and fully developed evidentiary record in covered claims. To
the contrary, VA's obligation to adequately develop claims under the
Veterans Claims Assistance Act of 2000 (VCAA), see 38 U.S.C. 5103 and
5103A, applies to both ECA participants and non-ECA participants alike.
Under the ECA Initiative, VA's responsibilities with respect to both
obtaining and analyzing identified evidence remain unchanged. Thus, ECA
participants run no additional risk of inadequate evidentiary
development as compared to other claimants in the VA system.
We also do not agree with the suggestion that the Initiative
sacrifices accuracy for speed. It remains VA's goal to provide all
claimants, including ECA participants, with high-quality, legally-
correct decisions in all claims. No provision in the ECA Initiative
runs counter to this goal. Although the Initiative shortens various
statutory and regulatory response times to be observed by participants,
it does not diminish VA's duty to fully develop the record as mandated
by the VCAA, and accurately decide a claim taking into consideration
all relevant facts and applicable law. While one of the commenters is
correct that quality assurance is not specifically addressed in the
proposed regulations, it is not necessary to include such regulations
as both the Veterans Benefits Administration (VBA) and the Board
already have robust and established quality assurance programs in place
that will be equally applicable to ECA cases. Therefore, for the above
reasons, we
[[Page 65728]]
make no change to the proposed rule based on the concerns raised
regarding decision quality and record development.
B. Docket Order
One commenter expressed concern that the Initiative makes no
provision for the Board to issue expedited decisions in appeals of
covered claims. The commenter suggested that VA adopt a regulation
authorizing the Board to ``consider and decide covered claims of
participating claimants out of docket order and as soon as practicable
upon their transfer to the Board.'' Unless the Board adopts such a
provision, the commenter stated, the Initiative will not be successful
as claimants will not want to participate in a program that does not
ensure faster processing time by the Board. The commenter recognized
that, as we explained in the notice of proposed rulemaking, the Board
is required by statute to consider appeals in docket order, subject to
certain enumerated exceptions. See 38 U.S.C. 7107(a) (providing that
``each case received pursuant to an application for review on appeal
shall be considered and decided in regular order according to its place
on the docket''). The commenter presented two recommendations for the
Board to deal with this statutory requirement. First, the commenter
proposed that ``VA must ask Congress to enact legislation to authorize
the Board to issue expedited decisions in appeals of covered claims.''
Second, the commenter suggested that the Board, pursuant to either 38
U.S.C. 7107 or 38 U.S.C. 501(a), may already have authority to decide
ECA appeals out of docket order.
With respect to the commenter's suggestion that VA ask Congress to
enact legislation authorizing the Board to decide ECA appeals out of
docket order, it was our goal in creating the Initiative to work within
the existing statutory framework. While there may be a number of
suggested legislative amendments which, if enacted, could potentially
improve the VA claims adjudication system, such pursuits are not within
the ambit of this rulemaking action or the ECA Initiative. Therefore,
we make no changes to the proposed rule based on this suggestion.
We also respectfully disagree with the commenter's suggestion that
VA already has the authority to decide ECA cases out of docket order.
The commenter specifically argues that ECA cases could be advanced on
the Board's docket pursuant to 38 U.S.C. 7107(a)(2). That statutory
provision allows the Board to advance a case on its docket ``if the
case involves interpretation of law of general application affecting
other claims;'' ``if the appellant is seriously ill or is under severe
financial hardship;'' or ``for other sufficient cause shown.'' The
commenter suggests that the need for expeditious adjudication of ECA
appeals constitutes ``other sufficient cause'' for allowing the Board
to advance ECA cases on its docket.
We do not agree with the commenter that the need for expeditious
adjudication of appeals under the Initiative constitutes ``other
sufficient cause'' for advancing ECA cases on the docket, as that
phrase is used in 38 U.S.C. 7107(a)(2)(C). Consistent with the limited
bases for granting a motion to advance as provided in section
7107(a)(2), the Board has narrowly construed ``other sufficient cause''
as being limited to situations involving either administrative error on
the part of VA that resulted in significant delay in docketing the
case, or where the appellant is of advanced age (75 or older). See 38
CFR 20.900(c).
Any appeal that is advanced on the Board's docket ``goes to the
head of the line'' and necessarily delays the consideration of all
other pending appeals. For every case advanced on the Board's docket,
another appellant whose case has not been advanced must wait longer for
his or her decision than otherwise would have been necessary. Decisions
to grant motions for advancement on the docket are carefully considered
on their individual merits. Although it is important that ECA appeals
are decided as quickly as possible, we simply do not believe that the
policy concerns inherent in advancing ECA cases are tantamount to those
involved in cases where advancement has traditionally been allowed. The
ECA Initiative is a 2-year pilot program, which, if successful, may
provide a basis for expanding some, or all, of the program nationwide.
If and when that occurs, it may be appropriate to reconsider the issue
of what would be required to properly permit the advance docketing of
ECA appeals. In the meantime, although ECA cases will not be
automatically advanced on the Board's docket, nothing in the Initiative
precludes participants from filing motions for advancement on the
docket where such action is otherwise warranted under 38 U.S.C.
7107(a)(2) and 38 CFR 20.900(c), such as where an appellant is at least
75 years of age or suffers from serious illness or severe financial
hardship.
Finally, while ECA cases will not be automatically advanced on the
Board's docket, it still is anticipated that the Board's use of its
screening authority under 38 U.S.C. 7107(f) will result in cases being
finally decided by the Board in a faster manner. Once an appeal reaches
its place on the docket, the Board often discovers that additional
development is required or that questions remain regarding
representation, hearing requests, or waivers of Board review of
evidence in the first instance. Substantial delay can result while the
Board resolves such matters, particularly where the Board has to remand
for additional development. Such delays can often add months or years
to the appellate process. By screening ECA cases at the Board under 38
U.S.C. 7107(f), the Board is authorized to take action pursuant to 38
CFR 19.9 including: soliciting a waiver from the participant permitting
the Board to review new evidence obtained by VA in the first instance;
seeking clarification on matters such as representation and hearing
requests; and, where necessary, remanding for further development. The
Board's screening efforts in this regard will help to ensure that such
matters are resolved before an ECA appeal reaches its place on the
docket. Thus, when an appeal reaches its place on the docket, the Board
should be able to make a final decision on the merits without
additional delay, such as would be caused by remanding for further
development at that time.
As to the concern raised that claimants will not want to
participate in the ECA program unless the Board adopts a provision for
advancing such cases on its docket, we simply reiterate that, by pre-
screening appeals, cases should be finally decided by the Board more
expeditiously than without such early intervention. Moreover, it is
noted that, based on longstanding past practice, a majority of cases
are resolved before they reach the Board. Most cases processed under
the ECA will likewise be resolved at the Agency of Original
Jurisdiction (AOJ) level. For those cases that do reach the Board, an
earlier docket number will be assigned by virtue of the case having
been more quickly processed by the AOJ. For all of the reasons outlined
above, we make no change to the proposed rules based on the comments
regarding docket order.
C. Time Limits
1. Time Limits on VA
One commenter expressed concern that under the Initiative,
``participating claimants agree to act within certain time-limits,
while the VA, except for one instance, does not.'' The commenter stated
that, if one of the goals of the Initiative is to ``help accelerate the
processing of all claims and appeals,''
[[Page 65729]]
VA will help to achieve this goal if it imposes additional time limits
on itself under the Initiative. The commenter submits that ``VA must
impose time-limits on the four selected VA regional offices and the
Board to take necessary action,'' and several specific time limits were
suggested. We reject this comment for the following reasons.
While the Initiative places only one time limit on VA, see 38 CFR
20.1504(b), this was done to ensure that VA adjudicators are afforded
adequate time to gather evidence identified by participants, obtain
necessary examinations and medical opinions, and conduct hearings when
requested without arbitrary time limits. As the commenter correctly
notes, inadequate development can lead to inaccurate decisions, which
unfairly deny benefits to deserving claimants. It is therefore critical
that all claims processed under the Initiative have fully-developed
records including all relevant evidence identified by the participant
and any necessary examination reports or medical opinions. While it is
certainly helpful for claimants to obtain and submit evidence on their
own behalf, the minimal obligation is for a claimant to identify the
location of pertinent records and authorize VA to obtain them. In
obtaining records from various government and private sources, delays
may be experienced in obtaining a response. Given that VA has no
control over non-VA organizations and individuals, it is simply not
practicable to establish fixed periods of time within which VA must act
in this regard, except as otherwise provided in the ECA regulations. In
fact, upon further reflection, VA has determined that a limited
exception to the time period imposed upon VA in Sec. 20.1504(b) is
necessary to ensure fairness and full compliance with the duty to
assist. This exception would cover the circumstance when, after
issuance of the Statement of the Case (SOC), VA is put on notice of a
change in circumstances, such as a worsening of the claimant's
condition or the location of previously unobtained relevant evidence.
In order to ensure full compliance with the duty to assist under the
VCAA, see 38 U.S.C. 5103A, VA may have an obligation to order a new
examination for the claimant or to obtain copies of the relevant
records. However, due to the time required to schedule and conduct a
new examination or locate and obtain new records, these actions may
make it challenging, if not impossible, for VA to comply with the time
limit in Sec. 20.1504(b), which requires VA to certify and transfer
the appellate record to the Board no later than 60 days from the date
of filing the Substantive Appeal. Consequently, out of fairness to the
claimant, we are amending Sec. 20.1504(b) to create an exception to
the 60-day time period for certification when VA is required under 38
U.S.C. 5103A and 38 CFR 3.159(c) to provide assistance in obtaining
evidence after issuance of the SOC.
The ECA Initiative does contain distinct time periods for claimants
to take certain actions, which we believe are reasonable. Claimants are
in the unique position of knowing the dates and places where they
received medical treatment relevant to their claims. When the claimant
adequately notifies VA of relevant evidence and authorizes VA to obtain
the evidence, VA then has a duty to assist the claimant in obtaining
this evidence. The sooner that the claimant provides VA with this
information and authorization, the more complete the record will be at
the beginning of the claims process. This is a significant feature of
the ECA Initiative--to develop a complete record as early in the
process as possible, so that informed and correct decisions may be
made.
Although we refrain from establishing any fixed time limits on VA
beyond the one outlined in Sec. 20.1504(b), we want to make clear this
does not mean that VA intends to unnecessarily delay action on ECA
claims. To the contrary, it is our stated intention to develop and
adjudicate ECA claims as quickly as possible by greatly reducing the
amount of time that a case sits without any action occurring while
waiting for a statutory or regulatory response period to end. Further,
we also reject the commenter's suggestion that we impose additional
time limits on VA because such action is beyond the scope of this
rulemaking and the ECA Initiative. The purpose of the ECA is to
evaluate whether claims processing can be expedited by claimants'
voluntary waiver of certain existing statutory and regulatory response
periods and pre-screening of cases by the Board. It is not the goal of
the Initiative to study the feasibility of imposing rating deadlines on
VA. Accordingly, for the above reasons, we make no change based on the
comments received, but we make one change to the time limit in Sec.
20.1504(b), as discussed.
2. Time Limits on Claimants
One commenter stated that the reduced time limits under the
Initiative for claimants are likely to result in inadequate records and
inaccurate decisions. The commenter noted that several of the time
limits to be observed by participants under the Initiative are unduly
strict and ``unreasonable,'' particularly the period participants have
to respond to a VCAA notice letter and to subsequent VA requests for
information and evidence. The commenter stated that claimants and their
representatives often have to wait ``weeks or months'' to receive
requested treatment records from medical-care providers, and that such
a wait would likely result in participants missing the aforementioned
deadlines. The commenter also noted that claimants' medical conditions
often worsen over time and that treatment records reflecting such
increase in symptomatology may not be available until after the VCAA
notice response period expires.
Additionally, the commenter stated that evidence submitted after
the deadlines in Sec. 20.1504(a)(1) and (2) would not be able to be
considered by VA, resulting in unfair denials of worthy claims.
Further, the commenter added that ``there is no provision in the VA's
proposed regulations that will permit the claimant to submit * * *
newly obtained evidence or information to VA since motions for an
extension of time to submit necessary information must be filed with VA
before the applicable time period runs.'' Finally, the commenter stated
that given the difficulties in obtaining medical evidence, VA should
not ``penalize'' participating claimants for circumstances outside of
their control.
Although in the notice of proposed rulemaking we stated that ECA
participants agree to waive the 1-year period provided under 38 U.S.C.
5103(b)(1) and 38 CFR 3.159(b)(1), we wish to correct that statement.
There is no such waiver under the ECA. Rather, an ECA participant must,
within 30 days, respond to VA's VCAA notice concerning the information
and evidence necessary to substantiate a claim. An ECA participant may
respond to VA's notice by providing information or evidence in the
claimant's possession, identifying necessary evidence that the claimant
requires VA's assistance to obtain, or notifying VA that no additional
evidence exists. See 38 CFR 20.1503(d) (Upon executing the Agreement
and Waiver of Rights, the participant will identify all relevant
evidence in support of his or her claim(s), including any VA records,
non-VA Federal records, and any private records, provide the evidence,
or notify VA that such evidence does not exist, within the time
prescribed in Sec. 20.1504(a)(1)). If the participant does not respond
to VA's notice within 30 days, the implied revocation provisions of
Sec. 20.1509(c) apply and the claim will
[[Page 65730]]
be decided using ordinary, non-ECA procedures. However, if the
participant responds within 30 days to VA's notice of the information
and evidence necessary to substantiate the claim, VA will make
reasonable efforts to obtain the evidence the participant has
authorized the Department to obtain and adjudicate the claim. 38 U.S.C.
5103A; 38 CFR 3.159(c).
Section 3.159(b)(1) of title 38, Code of Federal Regulations, does
not require a claimant to respond to VA's notice within 30 days,
although VA may decide the claim if the claimant does not respond. It
is our experience that often a claimant does not respond to the notice,
VA decides the claim, and then the claimant submits relevant evidence.
The ECA is designed to short-circuit this time-consuming adjudication
process by requiring a claimant to affirmatively advise VA of the
existence of relevant evidence, provide VA with such evidence, or
advise VA that no other relevant evidence exists or is available, so
that, to the fullest extent possible, all available evidence can be
compiled before a claim is adjudicated. In order to clarify our intent,
we are revising proposed Sec. Sec. 20.1503(d) and 20.1504(a)(1) and
(2) to explain what type of response is required from an ECA
participant within the specified periods.
An ECA participant, nonetheless, has, as provided in 38 U.S.C.
5103(b)(1) and 38 CFR 3.159(b)(1), 1 year from the date of the section
5103(a)--notice in which to submit the information and evidence that VA
has notified the participant that the participant must provide. See 38
CFR 20.1500(c) (any matter not otherwise covered by this subpart will
be governed by existing rules in this title). If evidence is received
by VA after the SOC is issued, the evidence will not be subject to
another AOJ adjudication, but instead may be considered by the Board in
the first instance. See 38 CFR 20.1508(b).
We are making one additional change to proposed Sec. 20.1504(a)(1)
by making the response period 30 days rather than 60 days. This
revision to proposed Sec. 20.1504(a)(1) will make it conform to the
response period already contained in 38 CFR 3.159(b)(1), as revised by
73 FR 23353, 23356, on April 30, 2008.
In addition, we point out that several of the Initiative's
provisions specifically contemplate a participant submitting, and VA
considering, evidence after the initial 30-day VCAA notice response
period has expired. For example, Sec. 20.1508(b)(2) provides that, if
new evidence is submitted by a participant or representative following
the issuance of an SOC, the participant will be deemed to have waived
AOJ review of such evidence so that the evidence may be considered by
the Board in the first instance. Moreover, Sec. 20.1504(a)(6)(iii)
allows participants 30 days to submit evidence or argument after their
appeals have been certified and transferred to the Board. Any evidence
submitted under this provision would necessarily be filed after the 30-
day VCAA response period has elapsed.
While participants and their representatives should be as thorough
as possible in responding to VCAA notice letters or follow-up
information requests, evidence submitted or identified after the
expiration of the 30-day response periods will still be considered by
the AOJ or the Board, provided such submission is allowed under other
provisions of law. The remainder of the comments expressing concern
that the ECA will result in inadequate records and inaccurate decisions
are rejected for the reasons discussed above.
D. Good Cause Exception
One commenter stated that the ``good cause'' exception for each of
the enumerated time limits is unduly strict and should be liberalized
to ensure the success of the Initiative. The commenter's primary
concern focused on the use of the good cause exception as it relates to
the 60-day time period in proposed Sec. 20.1504(a)(1) (now changed to
30-days in the final rule) for responding to a VCAA notice letter under
the Initiative. The comment appears to be based on the assumption that
VA will not consider evidence submitted after the VCAA notice response
period has expired. As explained in section C.2 above, ECA participants
do not waive the 1-year period prescribed in section 5103(a). An ECA
participant is not required to submit all evidence relating to their
claim within 30 days of the date of VA's section-5103(a) notice.
Rather, as explained above, what we intend is that an ECA participant
will be required to respond to VA's notice either by providing the
evidence requested, identifying evidence relevant to substantiating the
claim and authorizing VA to obtain the evidence, or notifying VA that
no such evidence exists.
ECA participants are not necessarily required to submit any
evidence at all within the response period in Sec. 20.1504(a)(1) or
(2), though they are free to do so. All a participant has to do to
comply with the notice response period(s) is to affirmatively respond
by identifying the relevant evidence then in existence and authorizing
VA to obtain such evidence or notifying VA that no such evidence
exists. See 38 CFR 20.1503(d). It is then VA's responsibility to make
reasonable attempts to obtain relevant evidence identified by the ECA
participant, including any private evidence that the claimant
adequately identifies and authorizes VA to obtain. 38 U.S.C. 5103A(b).
Therefore, because a sufficient response to a VA request for
information and evidence only requires the identification of relevant
information or evidence, if any, within the allowed response period,
along with providing VA with authorization to obtain the same, we
disagree with the commenter's suggestion that the good cause exception
as provided for in Sec. 20.1509(e), as it applies to responding to
VA's section-5103(a) notice, is inadequate as drafted.
Because participants are not barred from submitting additional
evidence following the expiration of the response periods set forth in
Sec. 20.1504(a)(1) and (a)(2), an extension motion is not required to
submit evidence after those periods have expired. An extension motion,
as described in Sec. 20.1509(e), is only needed if the participant
wishes to extend a time limit in subpart P, most of which consist of
response times. See 38 CFR 20.1504(a).
Finally, it is noted that the commenter seems to take an unduly
restrictive interpretation of the situations for which a motion for
extension of time may be granted pursuant to Sec. 20.1509(e). While
examples are provided of situations in which good cause may be found,
such as ``illness of the participant or the representative of such
severity that precludes action during the period,'' the proposed
regulation specifically states that the examples of good cause provided
``include, but are not limited to,'' the enumerated examples.
Accordingly, provided that a participant makes a timely request for an
extension of time with adequate showing of good cause, the participant
may obtain an extension of time. Accordingly, for all of these reasons,
we make no change to the proposed rule based on this comment.
E. Data Collection
One commenter expressed concern regarding VA's data collection
activities under the Initiative. The commenter stated that it is
``essential that good work load data and other management data be
collected * * * and that this information be used internally and made
available publicly so that the Initiative's new procedures can be
carefully evaluated on an ongoing basis.'' The commenter suggested
several pieces of information that
[[Page 65731]]
should be tracked, including ``the number of claimants that volunteer
for the program, how long each stays in the program, if they are
voluntarily or involuntarily dismissed from the program, and what
results are reached.'' The commenter also suggested that data collected
at participating VA regional offices be compared to that obtained at a
control group of non-participating offices.
While we wholeheartedly agree with the commenter that comprehensive
data collection will be critical to accurately evaluate the success of
the Initiative, the description of such data collection efforts is not
necessary or appropriate for inclusion in this rulemaking action.
Suffice it to say, we plan to gather a wide variety of information
throughout the course of the Initiative to ensure that all aspects of
the pilot program are carefully reviewed and evaluated. As the
commenter suggests, the information we intend to track includes, among
many other things, the number of participants, the number of instances
of revocation of participation, processing times, and the ultimate
disposition of ECA claims. We plan on tracking customer satisfaction
with the ECA to help assess the strengths and weaknesses of the
Initiative. Moreover, we intend to compare all data collected regarding
ECA participants with data from claimants who did not elect ECA
participation. All data collected and reports generated as part of the
Initiative will be obtainable by the public in the same manner and
means as other VA data and reports. Accordingly, we make no change to
the proposed rule based on this comment.
F. The Need for the ECA
One commenter questioned the need for the ECA, pointing out that
there was no discernable advantage that claimants would receive from
participation in the ECA, ``other than that which would be expected to
naturally flow from submitting procedural documents and evidence as
soon as practicable.'' The commenter suggested ``that the RO speed up
the certification and transfer time to the BVA, unilaterally, and
encourage claimants to unilaterally proceed with their appeal as
quickly as possible, without the necessity of waiving procedural
defects and without the need for rule changes.'' For all of the many
reasons already discussed above, as well as in the notice of proposed
rulemaking, VA respectfully disagrees with the assertion that claimants
will not benefit from participating in the ECA. Moreover, because the
Initiative is specifically designed as a 2-year pilot project at a
limited number of VA facilities, the data collected during this period
of time will enable a more fully informed assessment of the success and
weaknesses of the Initiative to be made, including whether it should be
further expanded.
In addition, it is noted that participation in the ECA will be
entirely voluntary. Accordingly, any claimant who does not feel
comfortable participating in the program, or does not feel that
participation would be advantageous, is free to proceed under the
existing VA claims adjudication and appeals process. Further, any ECA
participant will be able to opt out of the Initiative at anytime
without any negative consequences for doing so. Instead, the claim or
appeal will simply be returned to the normal claims adjudication and
appeals process at the point at which the participant withdrew from the
program. Thus, participation could never be disadvantageous to a
claimant.
Finally, as correctly noted by another commenter, the ECA
Initiative does not change VA's basic obligation to assure that the
varying parts of its benefits programs ``work together to give prompt,
efficient, fair, and accurate service to disabled veterans and other
claimants for VA benefits.'' We agree with this proposition. As
discussed at length above, the Initiative leaves intact VA's duties to
notify claimants of the information and evidence needed to substantiate
their claim, and VA's duty to assist claimants in obtaining relevant
evidence, including securing a VA examination when required by existing
law. At every point in the Initiative, the paternalistic and non-
adversarial nature of the VA claims adjudication system is preserved.
Thus, for all of the above reasons, we make no changes based on these
comments.
G. The Impact of the ECA on Workload at Trial Sites
Finally, one commenter expressed concern that the ECA Initiative
would have an adverse impact on the overall workload at the
Philadelphia regional office, which is one of the trial sites. He noted
that Philadelphia currently handles many cases that are ``brokered''
from the Boston regional office, and stated that the addition of ECA
cases to Philadelphia's workload will negatively impact the processing
of the brokered cases. The commenter also raised some general concerns
with VBA's case brokering process that are beyond the scope of this
rulemaking action and will not be further addressed here.
We respectfully disagree with the commenter's concerns. To be
eligible to participate in the Initiative, a claimant must reside
within the jurisdiction of one of the four participating VA regional
offices (the jurisdiction of each of the four participating regional
offices is specifically outlined in Sec. 20.1501(e)). As a result of
this requirement, the Philadelphia regional office would only be
allowed to handle ECA claims from participants who already reside
within the jurisdiction of that office. Such claims would already have
been the responsibility of the Philadelphia regional office, regardless
of a claimant's decision to participate in the Initiative. Because ECA
participants are taken from the same pool of claimants already being
served by the four respective participating regional offices, the
Initiative simply will not increase the number of claims handled by
each office, and therefore will not have an impact on the overall
workload of any of the test sites, including the Philadelphia regional
office. Moreover, even in the unlikely event that Philadelphia's
workload did increase, VBA would be free, at the discretion of
management, to reduce or discontinue the brokering of cases to that
office and instead broker Boston cases to another facility. We make no
changes to the proposed rule based on these comments.
H. Technical Amendments; Pilot Site Change
In addition to the revisions discussed above, we are making three
minor technical changes to the proposed rule, and one change regarding
the pilot sites. First, we are changing the language in Sec.
20.1500(d) to more clearly set forth the effective date of the
Initiative. Second, we are making a minor revision to Sec. 20.1501(d)
to clarify that representatives of ECA participants must be accredited
by VA. See 38 CFR 14.631. Third, we are adding a cross-reference and
brief discussion to Sec. 20.1508(b)(1) to more clearly indicate that
an implied revocation from the Initiative will occur if a participant
does not agree to waive initial consideration by the agency of original
jurisdiction of any new evidence obtained by VA following the issuance
of a Statement of the Case. See 38 CFR 20.1509(c)(2).
In addition to the foregoing, we are changing one of the four pilot
sites due to increased workload that has arisen at the St. Paul
regional office since publication of the NPRM. The St. Paul, Minnesota
regional office will no longer be involved in the ECA pilot program.
Rather, the regional office in Lincoln, Nebraska, will be one of the
four pilot sites. The jurisdiction of the Lincoln regional office
extends to the entire State of Nebraska.
[[Page 65732]]
Paperwork Reduction Act
This document contains no provisions constituting a collection of
information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).
Regulatory Flexibility Act
The Secretary hereby certifies that this 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. It will not affect any small organizations or small governmental
jurisdictions, and will not have a significant economic impact on these
small entities. Therefore, pursuant to 5 U.S.C. 605(b), this rule is
exempt from the initial and final regulatory flexibility analysis
requirement of 5 U.S.C. 603 and 604.
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 (OMB) unless OMB waives such
review, 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 otherwise 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 recipients thereof; 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.
The economic, interagency, budgetary, legal, and policy
implications of this rule have been examined and it has been determined
to be a significant regulatory action under Executive Order 12866, as
it raises novel legal or policy issues arising out of legal mandates.
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 1 year. This rule would have no such effect on State,
local, and tribal governments, or on the private sector.
Catalog of Federal Domestic Assistance Numbers
The Catalog of Federal Domestic Assistance program numbers and
titles for this proposal are 64.100, Automobiles and Adaptive Equipment
for Certain Disabled Veterans and Members of the Armed Forces; 64.101,
Burial Expenses Allowance for Veterans; 64.102, Compensation for
Service-Connected Deaths for Veterans' Dependents; 64.103, Life
Insurance for Veterans; 64.104, Pension for Non-Service-Connected
Disability for Veterans; 64.105, Pension to Veterans Surviving Spouses,
and Children; 64.106, Specially Adapted Housing for Disabled Veterans;
64.109, Veterans Compensation for Service-Connected Disability; 64.110,
Veterans Dependency and Indemnity Compensation for Service-Connected
Death; 64.114, Veterans Housing-Guaranteed and Insured Loans; 64.115,
Veterans Information and Assistance; 64.116, Vocational Rehabilitation
for Disabled Veterans; 64.117, Survivors and Dependents Educational
Assistance; 64.118, Veterans Housing-Direct Loans for Certain Disabled
Veterans; 64.119, Veterans Housing-Manufactured Home Loans; 64.120,
Post-Vietnam Era Veterans' Educational Assistance; 64.124, All-
Volunteer Force Educational Assistance; 64.125, Vocational and
Educational Counseling for Servicemembers and Veterans; 64.126, Native
American Veteran Direct Loan Program; 64.127, Monthly Allowance for
Children of Vietnam Veterans Born with Spina Bifida; and 64.128,
Vocational Training and Rehabilitation for Vietnam Veterans' Children
with Spina Bifida or Other Covered Birth Defects.
List of Subjects
38 CFR Part 3
Administrative practice and procedure, Claims, Disability benefits,
Health care, Pensions, Veterans, Vietnam.
38 CFR Part 20
Administrative practice and procedure, Claims, Veterans.
Approved: August 20, 2008.
James B. Peake,
Secretary of Veterans Affairs.
0
For the reasons set forth in the Preamble, VA amends 38 CFR parts 3 and
20 as follows:
PART 3--ADJUDICATION
Subpart A--Pension, Compensation, and Dependency and Indemnity
Compensation
0
1. The authority citation for part 3, Subpart A, continues to read as
follows:
Authority: 38 U.S.C. 501(a), unless otherwise noted.
0
2. Add Sec. 3.161 to read as follows:
Sec. 3.161 Expedited Claims Adjudication Initiative--Pilot Program.
Rules pertaining to the Expedited Claims Adjudication Initiative
Pilot Program are set forth in part 20, subpart P, of this chapter.
(Authority: 38 U.S.C. 501(a))
PART 20--BOARD OF VETERANS' APPEALS: RULES OF PRACTICE
0
3. The authority citation for part 20 continues to read as follows:
Authority: 38 U.S.C. 501(a), and as noted in specific sections.
0
4. Add subpart P to read as follows:
Subpart P--Expedited Claims Adjudication Initiative--Pilot Program
Sec.
20.1500 Rule 1500. Expedited Claims Adjudication Initiative.
20.1501 Rule 1501. Definitions.
20.1502 Rule 1502. Eligibility.
20.1503 Rule 1503. Election, identification of evidence, and
representation.
20.1504 Rule 1504. Time limits.
20.1505 Rule 1505. Review of initial benefits claim decision.
20.1506 Rule 1506. Board review of cases.
20.1507 Rule 1507. Hearings.
20.1508 Rule 1508. Waiver.
20.1509 Rule 1509. Compliance and revocation of participation.
20.1510 Rule 1510. Termination of the Initiative.
Subpart P--Expedited Claims Adjudication Initiative--Pilot Program
Sec. 20.1500 Rule 1500 Expedited Claims Adjudication Initiative.
(a) Purpose. The Expedited Claims Adjudication Initiative is a
pilot program designed to streamline the claims adjudication and
appeals process. This subpart establishes procedures governing this
Initiative.
(b) Outline of Initiative. This Initiative allows eligible
claimants to voluntarily participate in an alternative claims
[[Page 65733]]
adjudication program as set forth in this subpart, which is predicated
on the claimant's waiver of certain identified statutory and regulatory
time limits, procedural rights, and processing issues that may arise.
(c) Scope. Except as specifically provided in this subpart, claims
processed under this Initiative will be adjudicated according to the
procedures outlined in part 3 of this chapter, and appeals will be
processed according to the Appeals Regulations and Rules of Practice,
as outlined in parts 19 and 20 of this chapter. Any matter not
otherwise covered by this subpart will be governed by existing rules in
this title.
(d) Duration. The Secretary will accept an executed Agreement and
Waiver of Rights as provided in Sec. 20.1503 of this part for a period
not to exceed 2 years from December 5, 2008.
(Authority: 38 U.S.C. 501(a))
Sec. 20.1501 Rule 1501. Definitions.
For purposes of this subpart, the following definitions apply:
(a) Initiative means the Expedited Claims Adjudication Initiative
as promulgated by this subpart.
(b) Participant means any eligible claimant who elects to
participate in the Initiative by executing, with his or her
representative, an Expedited Claims Adjudication Initiative Agreement
and Waiver of Rights as provided in Sec. 20.1503 of this part.
(c) Covered claim or covered claims means any claim or claims, as
described in Sec. 20.1502(c) of this part, that a participant elects
to have processed under the rules governing the Initiative, including
any downstream element of the claim(s), such as assignment of a
disability rating and effective date, and any claim that is
inextricably intertwined with a covered claim.
(d) Representative means an accredited representative of a
recognized Veterans Service Organization or an accredited attorney or
agent, as set forth in part 14 of this chapter, for whom a claimant has
properly executed and filed a VA Form 21-22, ``Appointment of Veterans
Service Organization as Claimant's Representative,'' or a VA Form 21-
22a, ``Appointment of Individual as Claimant's Representative,'' as
required by Sec. 14.631 of this chapter.
(e) Participating VA regional office means one of the following
four VA regional offices: Nashville, Tennessee; Lincoln, Nebraska;
Seattle, Washington; and Philadelphia, Pennsylvania. The jurisdiction
of the Nashville, Lincoln, and Seattle regional offices extends to
residents of Tennessee, Nebraska, and Washington, respectively. The
jurisdiction of the Philadelphia regional office extends to residents
of the 40 easternmost counties of Pennsylvania and residents of the
seven southernmost counties of New Jersey. For purposes of this
Initiative only, the jurisdiction of these regional offices extends
only to a covered claim, as described in Sec. 20.1502(c) of this part.
(Authority: 38 U.S.C. 501(a))
Sec. 20.1502 Rule 1502. Eligibility.
To participate in the Initiative, a claimant must:
(a) At the time the Agreement and Waiver of Rights is executed,
have a representative, as defined in Sec. 20.1501(d) of this part;
(b) Reside within the jurisdiction of a participating VA regional
office, as defined in Sec. 20.1501(e) of this part; and
(c) File one of the following types of claims for VA disability
compensation as outlined in parts 3 and 4 of this chapter at a
participating VA regional office:
(1) Original claim;
(2) Claim for an increased rating;
(3) Claim to reopen a previously-denied claim based on the
submission of new and material evidence as provided in Sec. 3.156 of
this chapter; or
(4) Requests for revision of a decision of an agency of original
jurisdiction under Sec. 3.105 of this chapter based on clear and
unmistakable error.
(Authority: 38 U.S.C. 501(a))
Sec. 20.1503 Rule 1503. Election, identification of evidence, and
representation.
(a) When and how election made. Upon the filing of a claim
described in Sec. 20.1502(c) of this part, VA will promptly notify the
claimant in writing of the opportunity to participate in the Initiative
and provide the claimant with an Agreement and Waiver of Rights. A
claimant may elect to participate in the Initiative by filing an
executed Agreement and Waiver of Rights as provided in paragraphs (b)
and (c) of this section within 30 days of the date of the notice of the
opportunity to participate in the Initiative. An election to
participate in the Initiative can be revoked at any time in accordance
with Sec. 20.1509 of this part.
(b) Execution of agreement. To participate in the Initiative, a
claimant and his or her representative must execute an Agreement and
Waiver of Rights on a form prescribed by the Secretary. The claimant
will specifically identify in the Agreement and Waiver of Rights all
claims he or she wishes to have processed under the Initiative.
(c) Where to file. The executed Agreement and Waiver of Rights must
be filed with the participating VA regional office that has
jurisdiction over the claim.
(d) Identification of relevant evidence. Upon executing the
Agreement and Waiver of Rights, the participant will respond, within
the time period prescribed in Sec. 20.1504(a)(1), to VA notice
regarding the information and evidence necessary to substantiate the
claim by identifying all relevant evidence in support of his or her
claim(s), providing the requested evidence, or notifying VA that no
such evidence exists. Relevant evidence may include any VA records,
non-VA Federal records (such as Social Security disability records),
and any private records (such as treatment records from a family
physician). If the participant requires assistance from VA in obtaining
any identified records, the participant will provide VA, upon request,
the appropriate release form so VA may attempt to promptly obtain the
records on behalf of the participant. VA must receive the necessary
information and evidence requested from the participant within 1 year
of the date of the notice, in accordance with Sec. 3.159(b)(1) of this
chapter.
(e) Effect of change in representation on the election. If a
participant changes or terminates representation after having made a
valid election to participate in the Initiative, participation in the
Initiative will continue under the terms of the signed Agreement and
Waiver of Rights, unless the participant indicates, in writing,
pursuant to Sec. 20.1509(b) of this part, that he or she wishes to
revoke participation.
(Authority: 38 U.S.C. 501(a))
Sec. 20.1504 Rule 1504. Time limits.
The following time limits will be applicable to all covered claims:
(a) Time limits to be observed by the participant. The participant
will comply with the following time limits for all covered claims:
(1) Response to initial notice letter. The time limit for
responding to the notification regarding the information and medical or
lay evidence necessary to substantiate a claim in the manner required
by Sec. 20.1503(d) will be 30 days.
(2) Subsequent requests by VA for additional information and
evidence. The time limit for responding to any subsequent request by VA
for additional information or evidence, either by notifying VA of the
existence of such information or evidence, providing such evidence, or
notifying VA that no such evidence exists, will be 30 days.
[[Page 65734]]
(3) VA request for waiver. The time limit for responding to a VA
request for waiver as set forth in Sec. 20.1508 of this part, will be
30 days.
(4) Notice of Disagreement. The time limit for filing a Notice of
Disagreement pursuant to Sec. 20.302(a) of this part will be 60 days.
(5) Substantive Appeal. The time limit for filing a Substantive
Appeal pursuant to Sec. 20.302(b) of this part will be 30 days.
(6) Following certification of appeal to the Board. Following the
issuance of notification that the appeal has been certified and
transferred to the Board, the time limit for taking the following
actions pursuant to Sec. 20.1304 of this part will be 30 days:
(i) Request a hearing before the Board,
(ii) Request a change in representation, or
(iii) Submit additional evidence or argument.
(b) Time limit to be observed by the participating VA regional
office. The participating VA regional office shall certify covered
claims and transfer the appellate record to the Board as set forth in
Sec. Sec. 19.35 and 19.36 of this chapter within 30 days of the
receipt of the Substantive Appeal, or within 30 days of receipt of any
additional submissions following the Substantive Appeal, but no later
than 60 days from the receipt of the Substantive Appeal. However, if,
after issuance of the Statement of the Case, additional assistance in
obtaining evidence is required in order to comply with Sec. 3.159(c)
of this chapter, the participating VA regional office shall certify
covered claims and transfer the appellate record to the Board within 60
days after the requisite action is completed.
(Authority: 38 U.S.C. 501(a) and 5103A)
Sec. 20.1505 Rule 1505. Review of initial benefits claim decision.
If a participant files a Notice of Disagreement as to a covered
claim, the decision of the participating VA regional office will be
reviewed by a Decision Review Officer under the provisions set forth in
Sec. 3.2600 of this chapter.
(Authority: 38 U.S.C. 501(a))
Sec. 20.1506 Rule 1506. Board review of cases.
(a) The Board will screen cases that are certified and transferred
to the Board under the Initiative to determine whether the record is
adequate for decisional purposes. If the Board determines that the
record is inadequate, the Board will take appropriate action pursuant
to Sec. 19.9 of this chapter.
(b) A case screened by the Board for purposes of determining the
adequacy of the record will be decided in docket order and will not be
advanced on the Board's docket except as provided in Sec. 20.900(c) of
this part.
(Authority: 38 U.S.C. 7107(a), (f))
Sec. 20.1507 Rule 1507. Hearings.
(a) Before the participating VA regional office. Upon request, a
participant is entitled to a hearing by a Decision Review Officer
before the participating VA regional office as provided in Sec. Sec.
3.103(c) and 3.2600(c) of this chapter, subject to the following
limitations:
(1) No hearing will be conducted prior to the initial adjudication
of the claim by the participating VA regional office.
(2) Only one hearing on a claim will be conducted at the
participating VA regional office and the hearing will be conducted by a
Decision Review Officer in accordance with Sec. 3.2600 of this
chapter.
(b) Before the Board. Upon request, a participant is entitled to a
hearing before the Board as provided in Sec. Sec. 20.700 through
20.717, and 20.1304, subject to the following limitations:
(1) Only one hearing before the Board will be conducted.
(2) After consultation with the participant and his or her
representative, the Board will determine whether the hearing will be
conducted in person in Washington, DC, at the participating VA regional
office with jurisdiction over the claim, or by electronic equipment as
set forth in Sec. 20.700(e) of this part. The Board's determination
will be based primarily on the type and place of hearing which will
allow for scheduling at the earliest possible date. An in-person
hearing will be conducted in Washington, DC, only if geographically
convenient for the participant and his or her representative, or if the
participant agrees to travel to Washington, DC, at his or her own
expense.
(Authority: 38 U.S.C. 501(a))
Sec. 20.1508 Rule 1508. Waiver.
(a) General. When requested by VA, a participant will waive, in
writing, identified procedural processing issues and actions relating
to covered claims. VA will provide the participant with a clear
explanation, in writing, as to what rights he or she may be waiving. If
a hearing on appeal is conducted, the waiver may be formally and
clearly entered on the record at the time of hearing. A response to a
written waiver request from VA must be filed within the 30-day period
prescribed in Sec. 20.1504(a)(3) of this part. Such waiver is not
required for matters that have already been waived by virtue of
electing participation in the Initiative.
(b) Evidence obtained or submitted after the Statement of the Case.
(1) Evidence obtained by VA. If new evidence is obtained by VA
following issuance of a Statement of the Case under Sec. Sec. 19.29
and 19.30 of this chapter, and the claim(s) is not otherwise granted in
full based on this new evidence, VA will provide a copy of such
evidence to the participant and representative, and request a waiver of
review by the agency of original jurisdiction of such evidence and
issuance of a Supplemental Statement of the Case pursuant to the
provisions set forth in Sec. 20.1304(c) of this part. A response to a
written waiver request from VA must be filed within the 30-day period
prescribed in Sec. 20.1504(a)(3) of this part. The failure of the
participant to agree to a waiver of initial consideration by the agency
of original jurisdiction of any evidence obtained by VA will constitute
an implied revocation of participation in the Initiative, as provided
by Sec. 20.1509(c)(2).
(2) Evidence submitted by participant or representative. If new
evidence is submitted by the participant or representative following
issuance of a Statement of the Case under Sec. Sec. 19.29 and 19.30 of
this chapter, the participant, by virtue of executing a valid Agreement
and Waiver of Rights, is deemed to have knowingly and voluntarily
waived agency of original jurisdiction review of such evidence and
issuance of a Supplemental Statement of the Case, which permits the
Board to review such evidence in the first instance.
(Authority: 38 U.S.C. 501(a))
Sec. 20.1509 Rule 1509. Compliance and revocation of participation.
(a) Unless the participant revokes his or her participation in the
Initiative as provided in paragraphs (b), (c) or (d) of this section,
all covered claims will continue to be processed by VA or the Board in
accordance with the provisions of this subpart until a final decision
of the agency of original jurisdiction or the Board has been issued.
(b) Express revocation. A participant may revoke participation in
the Initiative at any time by submitting a revocation request in
writing. The revocation request must be filed with the participating VA
regional office unless the case has been certified and
[[Page 65735]]
transferred to the Board, in which case the revocation request should
be filed with the Board. As of the date of receipt of the revocation,
any covered claims will be processed in the same manner as if the
participant had not elected to participate in the Initiative.
(c) Implied revocation. The failure of a participant to meet the
terms of these rules, as outlined in the executed Agreement and Waiver
of Rights, will have the same result as if the participant had
expressly revoked his or her participation in the Initiative. As of the
date of the action constituting such implied revocation, any covered
claims will be processed in the same manner as if the participant had
not elected to participate in the Initiative. Grounds for implied
revocation of participation include, but are not limited to:
(1) The failure of the participant or representative, as
appropriate, to comply with any of the time limits set forth in Sec.
20.1504(a) of this part;
(2) The failure to waive initial consideration by the agency of
original jurisdiction of any evidence obtained by VA that was not
considered in the Statement of the Case;
(3) A request by a participant or representative for an extension
of any of the time limits set forth in Sec. 20.1504(a) of this part,
unless a motion for good cause is granted, as described by paragraph
(e) of this section; and
(4) Any other failure on the part of the participant to comply with
the terms of the Agreement and Waiver of Rights, as determined by VA.
(d) Death of participant. If a participant dies while his or her
claim is being processed, participation in the Initiative will be
deemed revoked.
(e) Extensions. Extensions of any of the time limits described in
this subpart may only be granted when the participant demonstrates on
motion that there is good cause for the extension request. At no time
may time periods be extended beyond those provided by law to all
claimants and appellants. Examples of good cause include, but are not
limited to, illness of the participant or the representative of such
severity that precludes action during the period; death of an
individual representative; illness or incapacity of an individual
representative that renders it impractical for a participant to
continue with him or her as representative; or withdrawal of an
individual representative. Motions for extensions must be filed prior
to the expiration of the time period for which a motion is being
requested. Motions must be in writing, and filed with the participating
VA regional office that has jurisdiction over the claim, unless the
case has been certified and transferred to the Board, in which case the
motion must be filed with the Board. Motions must include the name of
the participant, the applicable Department of Veterans Affairs file
number; and an explanation as to why the extension request is being
made.
(Authority: 38 U.S.C. 501(a))
Sec. 20.1510 Rule 1510. Termination of the Initiative.
VA may terminate the Initiative at any time. In the event of such
termination, VA will notify participants and their representatives in
writing and inform them that any covered claims will be processed from
the date of termination in the same manner as if the participant had
not elected to participate in the Initiative.
(Authority: 38 U.S.C. 501(a))
[FR Doc. E8-26310 Filed 11-4-08; 8:45 am]
BILLING CODE 8320-01-P