E7-5435. Supplemental Statement of the Case

AGENCY:

Department of Veterans Affairs.

ACTION:

Proposed rule.

SUMMARY:

The Department of Veterans Affairs (VA) proposes to amend its regulations regarding the time limit for filing a response to a Supplemental Statement of the Case in appeals to the Board of Veterans' Appeals (Board). We propose to change the response period from 60 days to 30 days. The purpose of this change is to improve efficiency in the appeals process and reduce the time that it takes to resolve appeals while still providing appellants with a reasonable period to respond to a Supplemental Statement of the Case.

DATES:

Comments must be received by VA on or before May 25, 2007.

ADDRESSES:

Written comments may be submitted through http://www.Regulations.gov;​; by mail or hand-delivery to the Director, Regulations Management (00REG), Department of Veterans Affairs, 810 Vermont Avenue, NW., Room 1068, Washington, DC 20420; or by fax to [phone]. Comments should indicate that they are submitted in response to “RIN 2900-AM49—Supplemental Statement of the Case.” Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1063B, between the hours of 8 a.m. and 4:30 p.m. Monday through Friday (except holidays). Please call [phone] for an appointment. In addition, during the comment period, comments may be viewed online through the Federal Docket Management System (FDMS) at http://www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Steven L. Keller, Senior Deputy Vice Chairman, Board of Veterans' Appeals (012), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, [phone].

SUPPLEMENTARY INFORMATION:

The Board is an administrative body within VA that decides appeals from denials by Agencies of Original Jurisdiction (AOJs) of claims for veterans' benefits, as well as occasional cases of original jurisdiction. The Board is under the administrative control and supervision of a Chairman who is directly responsible to the Secretary of Veterans Affairs. 38 U.S.C. 7101(a). The Board's Appeals Regulations and Rules of Practice are found at 38 CFR parts 19 and 20.

An appeal to the Board is initiated by a timely filed Notice of Disagreement and completed (also called “perfected”) by a timely filed Substantive Appeal after a Statement of the Case is furnished. 38 U.S.C. 7105(a); 38 CFR 20.200. Under applicable law, the AOJ provides notice of any decision made by VA affecting the payment of benefits or the granting of relief. 38 U.S.C. 5104; 38 CFR 3.103(b)(1). The claimant has one year from the date of mailing that notice to file a Notice of Disagreement. 38 U.S.C. 7105(b)(1); 38 CFR 20.302(a). Following receipt of a timely Notice of Disagreement, the AOJ will prepare a Statement of the Case, which must include: (1) A summary of the evidence in the case pertinent to the issue or issues with which disagreement has been expressed; (2) a citation to pertinent laws and regulations and a discussion of how such laws and regulations affected the AOJ's decision; and (3) the AOJ decision on each issue and a summary of the reasons for such decision. 38 U.S.C. 7105(d)(1); 38 CFR 19.29. Except in cases of simultaneously contested claims, the claimant has 60 days to file a Substantive Appeal in response to the Statement of the Case or the remainder of the one-year period from the date of notice of the decision being appealed, whichever period ends later. 38 U.S.C. 7105(d)(3); 38 CFR 20.302(b)(1). In simultaneously contested claims, a Substantive Appeal and any response to a Supplemental Statement of the Case must be filed within 30 days from the date of mailing of the Statement of the Case and Supplemental Statement of the Case, respectively. 38 U.S.C. 7105, 7105A(b); 38 CFR 20.501(b) and (c).

Often, the AOJ receives additional evidence in support of the appeal after the Statement of the Case was issued but before the appeal is certified for appellate review and transferred to the Board. If the additional evidence is new (i.e., not duplicative of evidence previously of record that was discussed in the Statement of the Case or a prior Supplemental Statement of the Case) and relevant to the appeal, the AOJ will prepare a document known as a Supplemental Statement of the Case and furnish a copy to the appellant and his or her representative, if any. 38 CFR 19.31(b)(1), 19.37(a). The purpose of a Supplemental Statement of the Case is to inform the appellant of any material changes in, or additions to, the information included in the Statement of the Case or any prior Supplemental Statement of the Case. 38 CFR 19.31(a).

A Supplemental Statement of the Case will also be furnished if the AOJ discovers a material defect in the Statement of the Case or a prior Supplemental Statement of the Case, or determines that for any other reason the Statement of the Case or a prior Supplemental Statement of the Case is inadequate. 38 CFR 19.31(b). Additionally, if an appeal is remanded by the Board to the AOJ and a claim cannot be granted on remand, a Supplemental Statement of the Case is generally provided to the appellant regarding that issue. 38 CFR 19.31(c), 19.38. Thereafter, the case is returned to the Board.

Currently, 38 CFR 19.38, 20.302(c), and 20.303 provide information regarding the Supplemental Statement of the Case. These regulations indicate that appellants are allowed a period of 60 days from the date of mailing of the Supplemental Statement of the Case to submit a response. Moreover, under 38 CFR 20.303, an extension of the 60-day period for responding to the Supplemental Statement of the Case, when such a response is required, may be granted for good cause. We propose to change the 60-day period in each of these regulations to 30 days, to help expedite the appeals process while still providing appellants with a reasonable period to respond. We believe that the beneficial effects of the amendment will significantly outweigh any potential adverse effects on appellants and we are soliciting comments on this point.

Unlike the Statement of the Case, which must contain specific information about the evidence and issues in the case, the applicable laws and regulations, and the reasons for each determination, a Supplemental Statement of the Case is not required to contain the same degree of detail. As its name implies, a Supplemental Statement of the Case is a supplement to the Statement of the Case. The document is intended to inform the appellant of any material changes to, or additions to, the information included in the Statement of the Case. 38 CFR 19.31(a). In no case will a Supplemental Statement of the Case be used to announce AOJ decisions on issues that were not previously addressed in a Statement of the Case. 38 CFR 19.31(a). Therefore, due to the limited purpose of a Supplemental Statement of the Case, less time should be needed to respond to a Supplemental Statement of the Case as compared to the Statement of the Case. In addition, under this proposed rule change, an extension of the 30-day period for responding to a Supplemental Statement of the Case may still be granted for good cause. 38 CFR 20.303.

Significantly, provided that a Substantive Appeal has been timely filed in accordance with 38 CFR 20.302(b), a response to a Supplemental Statement of the Case is strictly optional and is not required to perfect an appeal. 38 CFR 20.302(c). If there is no response to the Supplemental Statement of the Case within the allowed period, any remaining processing of the case can be completed and the appeal can be certified and transferred to the Board. In practice, VA adjudicators will hold the case for the full response period to allow the appellant every opportunity to respond to the Supplemental Statement of the Case. By reducing the response period from 60 days to 30 days, VA can allow the case to move forward faster than under current regulations, thus helping expedite the adjudication of appealed cases. In addition to the 30-day period to respond to the Supplemental Statement of the Case, once his or her appeal has been certified and transferred to the Board, the appellant typically still has 90 days to submit further evidence. 38 CFR 20.1304(a). Although 38 CFR 20.1304(a) states that the appellant has 90 days or until the Board promulgates a decision to submit evidence, as a practical matter, with the exception of a limited class of cases, such as cases that were advanced on the Board's docket pursuant to 38 U.S.C. 7107(a), the Board generally does not decide cases until after the 90-day period has passed. This effectively provides most appellants with the full 90 days to submit additional evidence. Moreover, under § 20.1304(b), even after the 90-day period expires an appellant may still move to submit additional evidence if he or she can demonstrate good cause for the delayed submission.

This proposed rule would not affect the statutorily provided 60-day period to respond to a Statement of the Case. Rather, this proposed rule change is confined to the Supplemental Statement of the Case, which is a document created solely by VA regulation to describe VA's AOJ activity when, most commonly, after a Statement of the Case was issued but before the appeal is certified and transferred to the Board, non-duplicative evidence is received that is relevant to the issue or issues on appeal, or when the AOJ plans to return a case to the Board following a Board remand for further development.

For the reasons stated above, we propose to change the 60 day period to respond to a Supplemental Statement of the Case to 30 days in 38 CFR 19.38, 20.302(c), and 20.303.

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 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. By reducing the period allowed for submitting an optional response to a Supplemental Statement of the Case to 30 days, this proposed rule would affect claimants for VA benefits who appeal to the Board. It may also affect a few small organizations appealing to the Board, including attorneys appealing the cancellation of their accreditation by the VA General Counsel and accredited attorneys appealing decisions affecting payment of their fees out of past-due benefits awarded to VA claimants. This proposed rule may also affect a few small governmental jurisdictions appealing to the Board, such as state agencies appealing VA decisions on per diem payments for services provided to veterans in state homes.

However, reducing the period permitted for submitting an optional response to a Supplemental Statement of the Case would not have a significant economic impact on a substantial number of these small entities. Rather, it would expedite the processing of their appeals to the Board. Therefore, pursuant to 5 U.S.C. 605(b), this proposed 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 proposed rule have been examined and it has been determined not to be a significant regulatory action under Executive Order 12866.

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 one year. This proposed 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 in 38 CFR Parts 19 and 20

• Administrative practice and procedure
• Claims
• Veterans

Approved: November 30, 2006.

Gordon H. Mansfield,

Deputy Secretary of Veterans Affairs.

For the reasons set forth in the preamble, VA proposes to amend 38 CFR parts 19 and 20 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.

Subpart B—Appeals Processing by Agency of Original Jurisdiction

§ 19.38

[Amended]

2. Section 19.38 is amended by removing “60-day” and adding, in its place, “30-day”.

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

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.

Subpart D—Filing

§ 20.302

[Amended]

4. Section 20.302(c) is amended by removing “60” and adding, in its place, “30”.

§ 20.303

[Amended]

5. Section 20.303 is amended by removing “or the 60-day period for responding to a Supplemental Statement of the Case” and adding, in its place, “or the 30-day period for responding to a Supplemental Statement of the Case”.