2011-17959. Claim-Related Documents or Supporting Evidence Not of Record

AGENCY:

Department of Veterans Affairs.

ACTION:

Withdrawal of proposed rule.

SUMMARY:

In a document published in the Federal Register on November 12, 2009, the Department of Veterans Affairs (VA) proposed to add a new section to its adjudication regulations to establish temporary VA procedures for when claimants allege the submission of claim-related documents or evidence in support of a claim during the time period of April 14, 2007, through October 14, 2008, when such documents or evidence are not of record in the official VA file.

DATES:

The proposed rule published at 74 FR 58232 on November 12, 2009, is withdrawn as of July 18, 2011.

FOR FURTHER INFORMATION CONTACT:

Thomas J. Kniffen, Chief, Regulations Staff (211D), Compensation and Pension Service, Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, [phone]. You may also request further information regarding this rulemaking at [e-mail]

SUPPLEMENTARY INFORMATION:

In response to Department of Veterans Affairs (VA) Office of Inspector General (OIG) audit findings of improper document handling and control, dated August 20, 2008, the Secretary of Veterans Affairs suspended all document-shredding activities effective October 14, 2008, and provided temporary claims-handling and document control procedures to all regional office (RO) personnel regarding veterans who allege that they submitted claim-related documents or evidence in support of a claim between April 14, 2007, through October 14, 2008, that are not of record in official VA files. The proposed rulemaking was initiated to codify the temporary claims-handling and document control procedures established by the Secretary.

Since October 14, 2008, VA has consistently conformed to scrupulous nationwide document control procedures established by the Secretary. Additionally, new claims-handling procedures were implemented to handle submissions that may have occurred within the time period August 14, 2007, through October 14, 2008. These special procedures relaxed certain administrative claim submission requirements for claimants who asserted that they had submitted a claim or evidence during that period.

Specifically, procedures called for VA regional office personnel to recognize a claimant's or representative's assertion that a claim and/or supporting evidence had been previously submitted to VA during the 18-month window from April 14, 2007, to October 14, 2008. The procedures stated that VA would consider such a claim and/or evidence as though the claim and/or evidence was received on the date asserted by the claimant. The procedures provided specific instructions to VA regional office personnel on how to handle assertions of previously filed claims and/or evidence in favor of claimants where: (1) There was no record that the claim was received by VA, (2) VA adjudicated the claim based on a resubmission at a later date (i.e., a duplicate claim) because the first submittal was not retained, or (3) the claim was considered by VA based on an incomplete record because the supporting evidence or information was not added to the record. VA accordingly established effective dates or readjudicated claims based on claimants' assertions of previously filed claims and/or evidence during the 18-month period. The relaxed procedures were developed to ameliorate any loss of claims, information, or evidence that may have occurred as a result of inappropriate document disposal in VA regional offices during that period.

VA believes that it has addressed all allegations of document or evidence submissions from claimants who may have been affected by improper document handling and control during the period April 14, 2007, through October 14, 2008, and that VA is unlikely to receive any additional allegations of submissions during that time period. As we explained in the preamble to the notice of proposed rulemaking, if a submitted claim-related document or evidence is not of record in official VA files, a “veteran reasonably would have inquired about the document submission or would have been informed of its misplacement or destruction within 18 months from the asserted date of submission.” 74 FR 58232 (Nov. 12, 2009). Because it has been over 30 months since October 2008, we do not anticipate any new allegations of submissions during the time period April 2007 to October 2008. Additionally, the notice of proposed rulemaking, published in November 2009, informed the public, including claimants and veterans service organizations, that VA had established temporary claims-handling procedures for claimants who allege that they submitted a claim-related document or evidence during the aforementioned time period that was not of record in official VA files. Furthermore, it is VA's general policy that any claimant can assert at any time that VA misplaced or inadvertently destroyed documents and that VA will take appropriate action under existing procedures. Therefore, upon further study we have determined that this rulemaking is unnecessary. VA is withdrawing the proposed rule as it is no longer required.

Signing Authority

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. John R. Gingrich, Chief of Staff, Department of Veterans Affairs, approved this document on June 9, 2011, for publication.

Dated: July 13, 2011.

Robert C. McFetridge,

Director, Office of Regulation Policy and Management, Office of the General Counsel, Department of Veterans Affairs.