03-23261. Board of Veterans' Appeals: Speeding Appellate Review for Aging Veterans

AGENCY:

Department of Veterans Affairs.

ACTION:

Final rule.

SUMMARY:

This document amends a Board of Veterans' Appeals (Board) Rule of Practice to provide that a case may be advanced on the Board's docket because of the appellant's advanced age. The change is necessary to speed the appellate process for the large group of aging veterans.

DATES:

Effective Date: September 12, 2003.

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 of Veterans' Appeals (Board) is an administrative body that decides appeals from denials of claims for veterans' benefits. An agency of original jurisdiction (AOJ), typically one of the Department of Veterans Affairs (VA)'s 57 regional offices, makes the initial decision on the claim. A claimant who is dissatisfied with an AOJ's decision may appeal to the Board. The Board's 55 Members decide about 35,000 to 40,000 cases per year.

Generally, the law requires that the Board consider and decide appeals in the order in which they were filed. 38 U.S.C. 7107(a). However, the law also permits the Board, on motion, to advance cases for earlier consideration and determination under certain circumstances such as serious illness, severe financial hardship, and other sufficient cause shown. 38 U.S.C. 7107(a)(2). VA's implementing regulation, 38 CFR 20.900(c), currently specifies that “other sufficient cause” includes “administrative error resulting in a significant delay in docketing the case.”

On June 12, 2002, VA published a proposed rule with request for comments, which would amend the Board of Veterans' Appeals Rule of Practice 900(c) (38 CFR 20.900(c)) to provide that a case may be advanced on the Board's docket because of the appellant's advanced age, defined as 75 or more years old. 67 FR 40255. The purpose of the proposed rule is to speed the appellate process for the cohort of aging veterans.

We received comments from seven individuals. The commenters urged VA to either amend or rescind the rule. Their concerns fell into three categories: (1) The ineffectiveness of defining “advanced age” as 75 or more years of age in advancing the claims of older veterans; (2) a conflict with the instructions set forth by the Secretary of Veterans Affairs on expediting, at VA's regional offices, the claims of older veterans; and (3) the inequality of allowing one case to be advanced over another.

We will address these concerns in turn.

1. The ineffectiveness of defining “advanced age” as 75 years or older in advancing the claims of older veterans. One commenter argued that an individual who met the requirements of the proposed rule for advanced age, 75 or more years of age, would “likely have died by the time the case runs its course.” The commenter asserted that a claim remanded by the Board to the AOJ often remained active for another three to five years, and that a case appealed to the United States Court of Appeals for Veterans Claims takes 12 to 18 months to adjudicate. The commenter suggested lowering the threshold for “advanced age” from 75 to 70 years.

In the proposed rule, we explained our reasons for defining “advanced age” as 75 or more years of age. We seek to strike a balance between the statutory command that the Board consider appeals in docket order and the need to move some cases to the front of the line. We observed that approximately 18 percent of the total veteran population is age 75 or older whereas 27 percent of the veteran population is age 70 or over, and that 75 is also an age at which a veteran is very near to his or her life expectancy. 67 FR at 40255-56.

In sum, 75 or more years of age represents a segment of the veteran population large enough to provide meaningful relief, but not so large as to dilute the general rule of “first come, first served.” We have made no changes based on this comment.

2. A conflict with the instructions set forth by the Secretary of Veterans Affairs on expediting, at VA's regional offices, the claims of older veterans. One commenter asserted that defining “advanced age” as 75 or more years of age is in conflict with the Secretary's plan to expedite the processing of claims filed by older veterans. The commenter contended that the proposed rule does not show the same level of concern and stated that there should be uniformity in the way VA handles the cases of older veterans.

There are, however, significant differences between the factors facing the regional offices and the factors facing the Board.

In November 2001, the Secretary formed a “Tiger Team” at the Cleveland Regional Office for the purpose of processing the oldest claims in the Veterans Benefits Administration (VBA) and to focus on claims from veterans age 70 and older that had been pending over one year. Under Secretary for Benefits Daniel L. Cooper, Statement before the House Committee on Veterans' Affairs Subcommittee on Benefits (June 6, 2002) (transcript available at http://www.va.gov/​OCA/​testimony/​06je0220_​usa.htm). The emphasis was to process the claims of World War II and Korean War veterans whose claims were “mired in the system.” Id.

The problem experienced by VBA is an increasing inventory of cases “ original, reopened, and remanded—waiting for a decision and the lengthening time it takes to render a decision. The number of regional office cases awaiting decision in 2001 was nearly double that awaiting decision in 1996. 2003 Budget of the President, Department of Veterans Affairs at 281, available at http://www.whitehouse.gov/​omb/​budget/​fy2003/​pdf/​bud23.pdf. By the end of 2001, claims awaiting decision exceeded 640,000. Id. VA projected that in 2002 it would take VBA in excess of 200 days to process a disability compensation claim. Id. at 282. In contrast, the Board has experienced neither an increased inventory nor any significant increase in the number of days it takes to adjudicate an appeal.

Further, this rule deals with appeals before the Board, rather than with claims at regional offices. The rule simply recognizes that it would be worthwhile to give the possibility of priority to appellants who statistically may not be with us much longer. Finally, the Secretary has approved this amendment. Any conflict between the proposed rule and the priorities of the Secretary has been resolved. No changes have been made based on this comment.

3. The inequality of allowing one case to be advanced over another. One commenter asserted that all veterans' claims should be processed quickly, and that no claim should be advanced on the docket over another. Another commenter argued that the proposed rule fails to take into consideration the negative effect of advancing one case over another. The commenter felt allowing one claim to advance over another was fundamentally unfair.

As noted above, 38 U.S.C. 7107 provides us with the statutory authority to advance a case on the Board's docket. Further, the number of exceptions to the general rule of “first come, first served” has been kept to a minimum. By defining “advanced age” as 75 or more years old, the narrow application of the advance on docket exception remains intact. We therefore make no change based on these comments.

A need for clarification of the proposed rule has become apparent. As proposed, the rule could be interpreted to require the Board to advance a case on the docket if the appellant has reached “advanced age,” in the absence of a motion of a party to the case or the party's representative. VA does not intend such an interpretation. Rather, VA intends to permit the Board to advance such a case on the motion of the Chairman or Vice Chairman, but not require the Board to advance the case in the absence of a motion of a party to the case or the party's representative. Accordingly, we have added a sentence to § 20.900(c) to clarify that intent. The resulting paragraph (c) is so long that, for clarity and readability, we have divided it into three paragraphs separately addressing grounds for advancement on the docket, the requirements for a motion to advance, and disposition of such motions. If a party to the case moves for advancement and sufficient cause is shown, the Board will advance the case on the docket.

Based on the rationale set forth in the proposed rule and in this document, we are adopting the provisions of the proposed rule revised as described.

Administrative Procedure Act

This final rule is effective on the date of publication. The 30-day delayed effective date required under the Administrative Procedure Act (APA) is inapplicable pursuant to 5 U.S.C. 553(d)(1), which excepts from the delayed-effective-date requirement a substantive rule that “grants or recognizes an exemption or relieves a restriction.” The amendment adopted in this final rule permits a case to be advanced on the Board's docket because of an appellant's advanced age, which grants an exception from the rule that normally requires the Board to consider and decide appeals in the order in which they were filed. Consequently, the amendment in this final rule meets the requirements for exception set forth in the APA.

Unfunded Mandates

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 202) requires that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector of $100 million or more in any given year. This final rule would have no such effect on State, local, or tribal governments, or the private sector.

Regulatory Flexibility Act

The Secretary hereby certifies that this final rule will 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 final rule is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

Paperwork Reduction Act

The Secretary hereby certifies that this final rule contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

List of Subjects in 38 CFR Part 20

• Administrative practice and procedure; Claims; Veterans

Dated: Approved: July 2, 2003.

Anthony J. Principi,

Secretary of Veterans Affairs.

For the reasons set out in the preamble 33 CFR part 20 is amended as set forth below.

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

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

Authority: 38 U.S.C. 501(a) and as noted in specific sections.

Subpart J—Action by the Board

2. Section 20.900(c) is revised to read as follows:

§ 20.900

Rule 900. Order of consideration of appeals.

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(c) Advancement on the docket. (1) Grounds for advancement. A case may be advanced on the docket on the motion of the Chairman, the Vice Chairman, a party to the case before the Board, or such party's representative. Such a motion may be granted only 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 if other sufficient cause is shown. “Other sufficient cause” shall include, but is not limited to, administrative error resulting in a significant delay in docketing the case or the advanced age of the appellant. For purposes of this Rule, “advanced age” is defined as 75 or more years of age. This paragraph does not require the Board to advance a case on the docket in the absence of a motion of a party to the case or the party's representative.

(2) Requirements for motions. Motions for advancement on the docket must be in writing and must identify the specific reason(s) why advancement on the docket is sought, the name of the veteran, the name of the appellant if other than the veteran (e.g., a veteran's survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual's behalf), and the applicable Department of Veterans Affairs file number. The motion must be filed with: Director, Administrative Service (014), Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420.

(3) Disposition of motions. If a motion is received prior to the assignment of the case to an individual member or panel of members, the ruling on the motion will be by the Vice Chairman, who may delegate such authority to a Deputy Vice Chairman. If a motion to advance a case on the docket is denied, the appellant and his or her representative will be immediately notified. If the motion to advance a case on the docket is granted, that fact will be noted in the Board's decision when rendered.

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(Authority: 38 U.S.C. 7107, Pub. L. 103-446, Sec. 302)