02-14685. Board of Veterans' Appeals: Speeding Appellate Review for Aging Veterans

AGENCY:

Department of Veterans Affairs.

ACTION:

Proposed rule.

SUMMARY:

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

DATES:

Comments must be received on or before August 12, 2002.

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. Fax comments to: [phone]. E-mail comments to: [e-mail]. Comments should indicate that they are submitted in response to “RIN 2900-AL08.” All comments received will be available for public inspection in the Office of Regulations Management, Room 1158, between 8 a.m. and 4:30 p.m., Monday through Friday (except holidays).

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

The Board of Veterans' Appeals (Board) is the component of the Department of Veterans Affairs (VA) in Washington, DC, that decides appeals from denials of claims for veterans' benefits. An agency of original jurisdiction (AOJ), typically one of VA's 58 regional offices, makes the initial decision on a claim. A claimant who is dissatisfied with an AOJ's decision may appeal to the Board.

America owes a great debt to its military service veterans. They defended our nation in times of war and kept watch in times of peace to keep new crises from developing. Unfortunately, our nation is now losing large numbers of these veterans each year. Barely 2,000 of the almost 5 million men and women who served in World War I and one-third of the 16 million who served in World War II still survive. Even a number of Korean War veterans are now in their seventies. Among all veterans, approximately 18% are age 75 or older. Twenty-seven percent of the veteran population is aged 70 or over. See “Veteran Data & Information” <http://www.va.gov/​vetdata/​Demograhics/​VPwelcome.htm>. (Note: “Demograhics” is the spelling used at the site.) In 1995, a person who reaches age 65 in the United States has an average life expectancy of 17 years. “Sixty-Five Plus in the United States” at 1, SB/95-8, U.S. Department of Commerce, Economics and Statistics Administration, Bureau of the Census (May 1995), available at http://www.census.gov/​apsd/​www/​statbrief/​sb95_​8.pdf.

The process of obtaining veterans benefits can be protracted, particularly where benefits are initially denied and that denial is appealed up through VA's administrative appeal process and beyond into the judicial system. The claims adjudication and appellate systems provide a myriad of procedural protections which, added together, take a great deal of time to work through. Further, the appellate process normally functions on a “first come, first served” basis. The law requires that the Board consider and decide each appeal “in regular order according to its place upon the docket.” 38 U.S.C. 7107(a). While this is normally a just and orderly approach, we are concerned that aging veterans may not survive to see it through to the end. The same is true of other aging appellants, such as the surviving spouses of deceased veterans.

Fortunately, the law also permits the Board, on motion, to advance cases for earlier consideration and determination under certain circumstances, including serious illness, severe financial hardship, and “other sufficient cause shown.” 38 U.S.C. 7107(a)(2). Because of the large numbers of appeals—on average, the Board receives 35,000-40,000 per year—the Board has taken a restrictive view of its authority to advance cases on the docket. The implementing regulation, at 38 CFR 20.900(c), currently specifies that “other sufficient cause” includes “administrative error resulting in a significant delay in docketing the case.”

Given the age of our veteran population, we propose expanding this provision to permit advancement for earlier consideration by the Board because of the appellant's advanced age. For this limited purpose, VA proposes defining “advanced age” as 75 or more years of age. We chose age 75 for three reasons: First, it is an age at which a veteran is very near to his or her life expectancy. Second, it represents a segment of the veteran population—18%—large enough to provide meaningful relief, but not so large as to dilute the general rule of first come, first served. Third, the other bases for advancement on the docket in § 20.900(c), illness and financial hardship, adequately cover other exigent circumstances.

As with most other bases for advancing on the docket, we intend to rely primarily on motions filed by appellants and their representatives to alert the Board to situations where advancement based on advanced age would be appropriate. (Approximately 90% of appellants have representatives.) As the regulation defines “advanced age” (75 years) as good cause for advancement, all such motions should be granted. However, we welcome any comments from the public as to how best to implement this authority.

Unfunded Mandates

The Unfunded Mandates Reform Act, Public Law 104-4, March 22, 1995, requires (in section 202) 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 proposed rule will have no consequential effect on State, local, or tribal governments.

Paperwork Reduction Act

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

Executive Order 12866

This document has been reviewed by the Office of Management and Budget under Executive Order 12866.

Regulatory Flexibility Act

The Secretary hereby certifies that this regulatory amendment 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. This rule affects only individuals. Therefore, pursuant to 5 U.S.C. 605(b), this regulatory amendment is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

List of Subjects in 38 CFR Part 20

• Administrative practice and procedure
• Claims
• Veterans

Approved: February 27, 2002.

Anthony J. Principi,

Secretary of Veterans Affairs.

For the reasons stated in the preamble, VA proposes to amend 38 CFR part 20 as follows:

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. 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. Such motions 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. 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)