01-29844. Board of Veterans' Appeals: Rules of Practice-Notice of Appeal in Simultaneously Contested Claim

AGENCY:

Department of Veterans Affairs.

ACTION:

Final rule.

SUMMARY:

The Board of Veterans' Appeals (Board) adjudicates appeals from denials of claims for veterans' benefits filed with the Department of Veterans Affairs (VA). This document amends a Board Rule of Practice, pertaining to a type of notice given in simultaneously contested claim appeals, to eliminate an inconsistency between that Rule of Practice and an Appeals Regulation and to update a presumption related to communication of the notice.

DATES:

Effective Date: January 2, 2002.

FOR FURTHER INFORMATION CONTACT:

Steven L. Keller, Senior Deputy Vice Chairman, Board of Veterans' Appeals, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420 (202-565-5978).

SUPPLEMENTARY INFORMATION:

In a document published in the Federal Register on October 1, 1999 (64 FR 53302), we proposed to amend the Board's Rules of Practice to reconcile conflicting regulatory requirements in 38 CFR 19.102 and 38 CFR 20.502 concerning the information provided to other parties to a contested claim about the appeal of a contesting party. We also proposed to change a presumption concerning the date of furnishing this information .

The only comment that we received raised an objection concerning the presumption. As proposed, the rule would provide a presumption that information about the content of one contesting party's Substantive Appeal was furnished to other contesting parties on the date of the letter from VA that accompanies the information. The date the information is furnished is important because it begins a statutory 30-day time limit for filing a brief or argument in response to a Substantive Appeal.

A national veterans' service organization recommended that the time limit for filing the response begin to run on the date of mailing the information, stating that the “proposed rule does not take into consideration the time delay of placing mail within the internal mail system of the Department.” In the alternative, the organization suggested that the rule require that the information and letter be placed “directly into the U.S. mail system.”

The presumption in this rule has been based on the date of the letter for a number of years and the proposed rule would not change that. It merely would establish the presumption that the information was furnished on the date of the letter, as opposed to the previous presumption that the information was mailed on the date of the letter. The change was proposed specifically to remove the presumption's tie to mailing, inasmuch as the means of communication is not limited to mailing by regulation or statute. The applicable statute, 38 U.S.C. 7105A, merely requires that notice of the substance of the appeal be “communicated to the other party or parties in interest” by “forward[ing] to the last known address of record.” VA does not believe that it is prudent to unduly limit flexibility by foreclosing every means of communication other than mailing, as would result from adoption of the commenter's suggestion.

Presumptions are useful because they serve to establish critical facts when there is no contrary evidence. VA considers the proposed presumption “rebuttable.” If the information is furnished by mail and the date of the letter and the date of mailing do not actually match in a particular case, a party may easily rebut the presumption by submitting a copy of the postmarked envelope. The presumption may be rebutted in other cases by other appropriate evidence, depending on the means by which the information was furnished.

For the reasons stated in this document and in the preamble to the proposed rule, VA is adopting the rule as proposed, except for a nonsubstantive grammatical change.

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. This rule may affect individual claimants for VA benefits and will not affect small businesses. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial and final regulatory flexibility analyses requirement of sections 603 and 604.

Paperwork Reduction Act

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

Unfunded Mandates

The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, 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 rule would have no consequential effect on State, local, or tribal governments.

List of Subjects in 38 CFR Part 20

• Administrative practice and procedure
• Claims
• Lawyers
• Legal services
• Veterans

Approved: November 26, 2001.

Anthony J. Principi,

Secretary of Veterans Affairs.

For the reasons set out in the preamble, 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.

2. Revise § 20.502 to read as follows:

§ 20.502

Rule 502. Time limit for response to appeal by another contesting party in a simultaneously contested claim.

A party to a simultaneously contested claim may file a brief or argument in answer to a Substantive Appeal filed by another contesting party. Any such brief or argument must be filed with the agency of original jurisdiction within 30 days from the date the content of the Substantive Appeal is furnished as provided in § 19.102 of this chapter. Such content will be presumed to have been furnished on the date of the letter that accompanies the content.

(Authority: 38 U.S.C. 7105A(b))