[Federal Register Volume 63, Number 210 (Friday, October 30, 1998)]
[Proposed Rules]
[Page 58336]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-29137]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AJ44
Well Grounded Claims/Duty to Assist
AGENCY: Department of Veterans Affairs.
ACTION: Advance notice of proposed rulemaking.
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SUMMARY: The Department of Veterans Affairs (VA) is issuing an advance
notice of proposed rulemaking (ANPRM) to establish policy and guidance
regarding what action, if any, VA should take to develop evidence
pertaining to benefit claims that are not well grounded.
DATES: Written comments in response to this ANPRM must be received on
or before January 28, 1999.
ADDRESSES: Mail or hand-deliver written comments to: Director, Office
of Regulations Management (02D), Department of Veterans Affairs, 810
Vermont Ave., NW, Room 1154, Washington, DC 20420. Comments should
indicate that they are submitted in response to ``RIN: 2900-AJ44.'' All
written comments received will be available for public inspection at
the above address in the Office of Regulations Management, Room 1158,
between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday
(except holidays).
FOR FURTHER INFORMATION CONTACT: John Bisset, Jr., Consultant,
Regulations Staff, Compensation and Pension Service, Veterans Benefits
Administration, 810 Vermont Avenue, NW, Washington, DC 20420, telephone
(202) 273-7210.
SUPPLEMENTARY INFORMATION: Section 5107(a) of title 38, United States
Code, states that, unless otherwise provided by the Secretary, it is
the responsibility of any person who submits a claim for benefits under
a law administered by VA to submit evidence to justify a belief by a
fair and impartial individual that the claim is well grounded.
The U.S. Court of Veterans Appeals (the Court) has defined a well-
grounded claim as a plausible claim, one which is meritorious on its
own or capable of substantiation. To satisfy the initial burden of 38
U.S.C. 5107(a), a claim need not be conclusive but only possible. The
Court has further held that such a claim must be accompanied by
supportive evidence and that such evidence must justify a belief by a
fair and impartial individual that the claim is plausible. For example,
generally for a claim for service-connected disability benefits to be
well grounded there must be: (1) a medical diagnosis of a current
disability; (2) medical evidence, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease or
injury; and (3) medical evidence of a nexus between an in-service
disease or injury and the current disability.
After establishing the requirement that a claimant must submit a
well-grounded claim, 38 U.S.C. 5107(a) requires the Secretary of
Veterans Affairs to assist ``such a claimant'' in developing the facts
pertinent to the claim. Both the Court and the U.S. Court of Appeals
for the Federal Circuit have held that VA's statutory duty to assist
attaches only after a claimant submits a well grounded claim.
In a substantial number of cases, both the Board of Veterans
Appeals and the Court have found that claims developed and adjudicated
at VA's regional offices were not well grounded.
This situation has raised concerns from a number of quarters. For
example, some members of the Court have suggested that 38 U.S.C.
5107(a) reflects a statutory policy that implausible claims should not
consume the limited resources of VA and force into backlog and delay
well-grounded claims. The Veterans' Claims Adjudication Commission,
established under Pub. L. 103-446, questioned whether it is prudent to
invest the cost in time and resources of developing claims that are not
well grounded. They maintained, among other things, that developing
claims that are not well grounded (1) improperly lifts the burden of
proof from the claimant and places it on VA; and (2) tends to
unnecessarily expand issues and drive the adjudication system toward
requesting and obtaining irrelevant evidence rather than concentrating
resources on obtaining evidence focused on the issues.
Moreover, VA recognizes the need for clear claims-development
guidelines that can be consistently applied. The Court has noted that
if the Secretary, as a matter of policy, volunteers assistance to
establish well groundedness, grave questions of due process can arise
if there is apparent disparate treatment between claimants in this
regard.
By this ANPRM, VA invites input as to what policies and procedures
it should adopt to govern the development of claims which are not well
grounded.
List of Subjects in 38 CFR Part 3
Administrative practice and procedure, Claims, Disability benefits,
Health care, Pensions, Veterans, Vietnam.
Approved: September 24, 1998.
Togo D. West, Jr.,
Secretary.
[FR Doc. 98-29137 Filed 10-29-98; 8:45 am]
BILLING CODE 8320-01-P
