02-5785. Time Limit for Requests for De Novo

AGENCY:

Department of Veterans Affairs.

ACTION:

Proposed rule.

SUMMARY:

This document proposes to amend the Department of Veterans Affairs (VA) adjudication regulations concerning the time a claimant has in which to request a de novo review of a claim at the Veterans Service Center level after filing a Notice of Disagreement (NOD). We believe this amendment will eliminate unnecessary delays in the appeals process without adversely affecting claimants.

DATES:

Comments must be received on or before May 10, 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; or fax comments to [phone]; or e-mail comments to [e-mail]. Comments should indicate that they are submitted in response to “RIN 2900-AK97.” All comments received will be available for public inspection 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:

Bill Russo, Regulations Staff, Compensation and Pension Service, Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, telephone [phone].

SUPPLEMENTARY INFORMATION:

Under existing statutes and regulations, a claimant who disagrees with a decision by a Veterans Service Center may appeal that decision by filing a NOD. Upon receipt of a NOD, VA must “take such development or review action as it deems proper under the provisions of regulations not inconsistent with [title 38 U.S. Code].” 38 U.S.C. 7105(d)(1). If this development or review does not resolve the disagreement, either by VA granting the claim or the claimant withdrawing the NOD, then VA must issue a Statement of the Case (SOC). After receiving the SOC, the claimant may continue their appeal, to the Board of Veterans' Appeals, by filing a Substantive Appeal.

Title 38 CFR 3.2600 allows claimants who have filed a timely NOD to obtain a de novo review by Veterans Service Center personnel. This new, optional review process was established through a final regulation published May 2, 2001 (66 FR 21871-21874). This document proposes to amend 38 CFR 3.2600 to reduce the time limit in which claimants may request a de novo review (a new and complete review with no deference given to the decision being reviewed) by Veterans Service Center personnel. Section 3.2600(b) currently states that unless a claimant has requested review under § 3.2600 with his or her NOD, VA will, upon receipt of the NOD, notify the claimant in writing of his or her right to a review under this section. Section 3.2600(b) further states that to obtain such a review, the claimant must request it not later than 60 days after the date VA mails the notice and that this time limit may not be extended. It also states that if the claimant fails to request de novo review within 60 days, VA will proceed with the traditional appellate process by issuing a SOC.

This rulemaking proposes to reduce that 60-day period to 15 days, in order to eliminate unnecessary delays in the appeals process. Under current § 3.2600(b), VA must wait up to 60 days from the date on which VA notifies a claimant of their right to a de novo review, before it may issue a SOC. If the claimant does not wish to have the Veterans Service Center review the claim de novo, this delays the appeals process by 60 days.

In VA's experience, many claimants or their representatives request de novo review along with their NOD. For those who do not, we believe that 15 days is enough time to decide whether to request a de novo review. Furthermore, by reducing the period during which VA will accept a request for de novo review from 60 to 15 days, we reduce the time needed to process an NOD by 45 days, no matter which option the claimant chooses.

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 the adoption of 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. The proposed rule does not directly affect any small entities. Only VA beneficiaries are directly affected. Therefore, pursuant to 5 U.S.C. 605(b), these amendments are exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

The Catalog of Federal Domestic Assistance program numbers are 64.100, 64.101, 64.104, 64.105, 64.106, 64.109, 64.110, and 64.127.

List of Subjects in 38 CFR Part 3

• Administrative practice and procedure
• Claims
• Disability benefits
• Health care
• Pensions
• Veterans
• Vietnam

For the reasons set forth in the preamble, 38 CFR part 3 is proposed to be amended as follows:

PART 3—ADJUDICATION

Subpart D—Universal Adjudication Rules That Apply to Benefit Claims Governed by Part 3 of This Title

1. The authority citation for part 3, subpart D continues to read as follows:

Authority: 38 U.S.C. 501(a), unless otherwise noted.

2. In § 3.2600, paragraph (b) is revised to read as follows:

§ 3.2600

Review of benefit claims decisions.

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(b) Unless the claimant has requested review under this section with his or her Notice of Disagreement, VA will, upon receipt of the Notice of Disagreement, notify the claimant in writing of his or her right to a review under this section. To obtain such a review, the claimant must request it not later than 15 days after the date VA mails the notice. This 15-day time limit may not be extended. If the claimant fails to request review under this section not later than 15 days after the date VA mails the notice, VA will proceed with the traditional appellate process by issuing a Statement of the Case. A claimant may not have more than one review under this section of the same decision.

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Approved: October 17, 2001.

Anthony J. Principi,

Secretary of Veterans Affairs.