Final Rule Department of Veterans Affairs 38 CFR Parts 3, 19, and 20
Federal Register Vol. 79, No. 186 Sep 24, 2014
Purpose of the Final Rule
The Department of Veterans Affairs (VA) amends its adjudication regulations and its appeals regulations and rules of practice of the Board of Veterans’ Appeals (Board) for the purpose of improving the quality and timeliness of the processing of veterans’ claims for benefits and appeals. Under 38 U.S.C. 501(a), VA is authorized to make these regulatory changes as it is granted broad authority to ‘‘prescribe all rules and regulations which are necessary or appropriate to carry out the laws administered by [VA] and are consistent with those laws,’’ including specifically authority to prescribe ‘‘the forms of application by claimants under such laws.’’ Congress has characterized a request for Board review as an ‘‘[a]pplication for review on appeal.’’ 38 U.S.C. 7106, 7107, 7108. Additionally, 38 U.S.C. 5101 explicitly provides that claimants must file ‘‘a specific claim in the form prescribed by the Secretary’’ in order for VA to pay benefits.
Summary of Major Provisions
The major provisions of this final rule include the following: VA will standardize the claims and appeals processes through the use of specific mandatory forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. These amendments will apply to all benefits within the scope of 38 CFR part 3, namely pension, compensation, dependency and indemnity compensation, and monetary burial benefits. These changes to VA’s adjudication regulations not only will drive modernization of the claims and appeals processes, but will also provide veterans, claimants, and authorized representatives with a clearer and easier way to initiate and file claims.
These final regulations also eliminate the provisions of 38 CFR 3.157 which allowed various documents other than claims forms to constitute claims, specifically, VA reports of hospitalization or examination and other medical records which could be regarded as informal claims for increase or to reopen a previously denied claim.
Nonetheless, this rule retains the current retroactive effective date assigned for awards for claims for increased evaluation as long as they are filed on a standard form within 1 year of such hospitalization, examination, or treatment. This final rule further implements a procedure to replace the non-standard informal claim process in 38 CFR 3.155 by employing a standard form on which a claimant or his or her representative can file an ‘‘intent to file’’ a claim for benefits.
Finally, this final rule provides that VA will accept an expression of dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction (AOJ) as a Notice of Disagreement (NOD) only if it is submitted on a standardized form provided by VA for the purpose of appealing the decision. This requirement only applies in cases where VA provides such a form with the Notice of Appeal Rights sent with the notice of a decision on a claim. In these cases, this rule replaces the current provision in 38 CFR 20.201 which permitted an appellant to begin the appeal process by filing in any format a statement that can be ‘‘reasonably construed’’ as seeking appellate review. This procedure made the identification of an appeal a time-intensive and inefficient interpretive exercise, complicated by the fact that an NOD could be embedded within correspondence addressing a variety of other matters, often contributing to delay in VA recognizing that an appellant sought to initiate an appeal. VA also adds two new sections to part 19 in this final rule. For NODs filed on a form provided by the AOJ, new 38 CFR 19.24 will govern.
This provision sets forth the procedures governing the treatment of incomplete forms, the criteria of a complete form, the timeframe to cure an incomplete form, the failure to respond to request to cure, action when a complete form is filed, and clarification of issues which are not enumerated on the form for appellate review. For NODs filed where no form is provided by the AOJ, new 38 CFR 19.23 which clarifies whether the requirements of current 38 CFR 19.26, 19.27, and 19.28, or newly adopted § 19.24 would apply to a particular case, will govern. Although a standardized NOD form will only initially be provided in connection with decisions on compensation claims, VA may require a standard NOD form for any type of claim for VA benefits if, in the future, it develops and provides a standardized NOD form for a particular benefit.
Costs and Benefits This rulemaking will not affect veterans’ eligibility for benefits, but rather prescribe that they must use a standard application form to formally apply for benefits. It also specifies that medical records themselves no longer constitute claims in the absence of a claim submitted formally. However, the retroactive effective date treatment for hospitalization, treatment, or examination under current regulation will apply if a claimant files an intent to file a claim or a complete claim within one year of such medical care. Likewise, this rulemaking amends VA’s appeals regulations and rules of practice of the Board of Veterans’ Appeals (Board) to provide that VA will only accept an expression of dissatisfaction or disagreement with an adjudicative determination by the AOJ as a Notice of Disagreement (NOD) if it is submitted on a standardized form provided by VA for the purpose of appealing the decision, in cases where such a form is provided.
This rulemaking seeks to change the format in which claimants initiate a claim, file a claim, and initiate an appeal through the use of VA prescribed forms but does not alter claimants’ entitlement to benefits or the amounts of awards granted. While there are no substantial monetary burdens on the claimant, the cost to claimants in submitting complete claims or initiating an appeal on a prescribed form or submitting expressions of intent to file in a specified format can be calculated in terms of a claimant’s time to fill out VA forms. Claimants and/or authorized representatives may need to learn and acclimate themselves to the new intent to file a claim process, which functions similarly to the current informal claim process. However, those claimants who are familiar with VA’s claims process may recognize the operation of the intent to file process as functioning similar to the current informal claim process.
The difference is that the intent to file a claim form serves as the effective date placeholder like the informal claim itself but must be submitted in specified standard formats and will only trigger VA’s duty to furnish the claimant the appropriate form. While VA recognizes this time cost to claimants in completing a prescribed claim or appeal form, it concludes that this up-front time burden to claimants is equivalent to (or even lesser than the unquantifiable time it takes for approximately half of claimants to compose non-standard submissions and the time VA spends identifying and clarifying the communication received in non-standard submissions, all of which add to delays in processing and adjudicating claims and appeals and the overall timeliness of delivering benefits to claimants. Therefore, we have determined that the time required by claimants to fill out forms is less than or equal to the current time burdens on claimants submitting non-standard submissions along with the time it takes for VA to identify, clarify, and develop these non-submissions.
This also applies to claimants opting to submit an intent to file a claim and a complete claim. By requiring data to be formatted in a standard way through the use of forms, VA will be able to cut processing time in identifying and developing claims, which will result in faster delivery of benefits to all veterans. While approximately half of the claimant population files non-standard submissions, the other half continues to file claims on a prescribed form. For the claimant population filing on prescribed forms, there is no additional burden as a result of this rulemaking. As previously stated, this rulemaking does not affect the amount of monies paid to a claimant or entitlement to benefits except in the case where a claimant who is not familiar with the intent to file a claim process submits an informal claim which VA will deem as a request for an application for benefits, resulting in the claimant submitting an intent to file a claim form or complete claim at a later date.
VA intends to mitigate this situation by delaying the effective date of this rule by 180 days from publication in order to perform robust outreach to inform and educate claimants and authorized representatives of this new standardized procedure of the claims and appeals processes. This rulemaking will allow VA to decrease the processing time in identifying, clarifying, and processing non-standard submissions as claims or appeals since VA will be able to easily target and identify these claims or initiations of appeals based on the submitted form. This means increased quality in processing claims as VA would be able to more accurately identify claims and to correctly assign effective dates of awards for claims submitted on prescribed forms.
Thus, standardizing the claims and appeals processes through the use of forms translates to faster delivery of benefits to claimants. In addition, standardizing submissions on prescribed forms is an essential component to VA’s current and developing electronic business programs which are designed to facilitate the efficient and accurate processing and adjudication of claims and appeals. In order to utilize the efficiency of such programs, data inputs require a standard format which would be achieved through the use of prescribed forms. In sum, we are only making procedural changes to the claims process by mandating the submission of standard forms to initiate a claim or to file a claim and to the appellate process by mandating the submission of standard forms where such a form is provided. We have determined that the costs associated with this rulemaking are mostly in terms of the burden of time required by claimants and/or their authorized representatives but such time burdens are equivalent to the current time burdens in our current claims and appeals processing.
Moreover, the use of standardized forms will result in realtime savings to VA in identifying, clarifying, and processing claims and appeals. Thus, there is an overall benefit to the public as a result of this rulemaking. On October 31, 2013, VA published in the Federal Register (78 FR 65490) a proposed rule to amend its adjudication regulations and the appeals regulations and rules of practice of the Board of Veterans’ Appeals (Board). There were several major components of these proposed changes. The first was to require that all claims be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. The second component proposed was to eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase or to reopen (see current 38 CFR 3.157) while retaining the beneficial retroactive effective date that may be assigned for grants for increase filed on a standard form within 1 year of such hospitalization, examination, or treatment.
The third component proposed that VA would accept an expression of dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction (AOJ) as a Notice of Disagreement (NOD) only if it is submitted on a standard form provided by VA for the purpose of appealing the decision. VA proposed that this requirement would apply only in cases where VA provides the standard form with the Notice of Appeal Rights sent to the claimant with the notice of a decision on a claim. VA provided a 60-day public comment period, which ended on December 30, 2013, and received 53 public comments, 4 of which were received after the comment period expired. Although VA is not legally required to consider late-filed comments, it has reviewed, considered, and addressed all comments received in the interest of maximizing public dialogue to further serve veterans, claimants, and authorized representatives.
VA received comments from various organizations and individuals, including The Center for Elder Veterans Rights; the County Veteran Service Officer Association of Wisconsin; Veteran Warriors; New York State Division of Veterans’ Affairs; Wounded Warrior Project; Disabled American Veterans; National Veterans Legal Services Program and the Military Order of the Purple Heart (jointly submitted); American Legion; Veterans for Common Sense; Veterans Justice Group, LLC; Veterans of Foreign Wars of the United States; Military Officers Association of America; Vietnam Veterans of America; VetsFirst; National Organization of Veterans Advocates; Paralyzed Veterans of America; State of Illinois Department of Veterans’ Affairs; the law firms of Bergmann and Moore; and Chisholm Chisholm and Kilpatrick; and other interested persons. We responded to all commenters as follows. All of the issues raised by the commenters that concerned at least one portion of the rule can be grouped together by similar topic, and we have organized our discussion of the comments accordingly. For the reasons set forth in the proposed rule and below, we are adopting the proposed rule as final, with changes, explained below, to proposed 38 CFR 3.1, 3.154, 3.155, 3.160, 3.400, 3.812, 19.24, and 20.201. To ensure consistency with these changes, we have also implemented changes to 38 CFR 3.108, 3.109, 3.403, 3.660, 3.665, 3.666, and 3.701.
Search For VA Forms
VA Use of Standard Forms Goes into Effect on March 24, 2015.
The Final Rule includes momentous changes in how VA will conduct business. First, VA has abolished the Informal Claim. Old rule 3.157 no longer exists and …Source: NOVA National Organization of Veterans Advocates
Eliminates the Informal Claim
This rulemaking also eliminates the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase or to reopen while retaining the retroactive effective date assignment for awards for claims for increase which are filed on a standard form within 1 year of such hospitalization, examination, or treatment.
Intent To File A Claim Factsheet – The intent to file process allows you additional time to collect all of the information needed to support your claim while protecting the earliest possible effective date for any award of benefits or increased benefits resulting from your claim. The date VA receives your intent to file will be protected as your effective date as long as the correct application form is completed and submitted within 1 year.
Claim means a written communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by the Department of Veterans Affairs submitted on an application form prescribed by the Secretary. [This does away with informal claims, all claim applications must be made using a VA form for that purpose. There now is something called Intent To File A Claim, more on that later.]
38 U.S.C. References
38 CFR References
38 CFR part 3
38 CFR 3.155
38 CFR 20.201
38 CFR 19.24
38 CFR 19.23
38 CFR 20.201
38 CFR 19.26, 19.27, and 19.28
Notice of Disagreement 21-0958