Notice and Assistance Requirements, 63732-63737 [E6-18180]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 71, Number 210 (Tuesday, October 31, 2006)]
[Proposed Rules]
[Pages 63732-63737]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-18180]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AM17


Notice and Assistance Requirements

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its 
regulation governing VA's duty to provide a claimant with notice of the 
information and evidence necessary to substantiate a claim and VA's 
duty to assist a claimant in obtaining the evidence necessary to 
substantiate the claim. The purpose of these proposed changes is to 
clarify when VA has no duty to notify a claimant of how to substantiate 
a claim for benefits, to make the regulation comply with statutory 
changes, and to streamline the development of claims.

DATES: Comments must be received by VA on or before January 2, 2007.

ADDRESSES: Written comments may be submitted through https://
www.Regulations.gov; by: mail or hand-delivery to the Director, 
Regulations Management (00REG), Department of Veterans Affairs, 810 
Vermont Ave.,

[[Page 63733]]

NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026. 
Comments should indicate that they are submitted in response to ``RIN 
2900-AM17--Notice and Assistance Requirements.'' Copies of comments 
received will be available for public inspection in the Office of 
Regulation Policy and Management, Room 1063B, between the hours of 8 
a.m. and 4:30 p.m., Monday through Friday (except holidays). Please 
call (202) 273-9515 for an appointment. In addition, during the comment 
period, comments may be viewed online through the Federal Docket 
Management System (FDMS) at https://www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Maya Ferrandino, Consultant, 
Compensation and Pension Service, Policy and Regulations Staff, 
Veterans Benefits Administration, 810 Vermont Avenue, NW., Washington, 
DC 20420, (202) 273-7211.

SUPPLEMENTARY INFORMATION: Section 3(a) of the Veterans Claims 
Assistance Act of 2000 (VCAA), Public Law 106-475, 114 Stat. 2096, 
amended 38 U.S.C. 5103 to impose on VA a duty to provide certain notice 
to certain claimants applying for veterans' benefits. See 38 U.S.C. 
5103(a). Under section 5103(a), upon receipt of a substantially 
complete application for benefits, VA must ``notify the claimant and 
the claimant's representative, if any, of any information, and any 
medical or lay evidence, not previously provided to the Secretary that 
is necessary to substantiate the claim'' (section 5103(a) notice). 38 
U.S.C. 5103(a). VA implemented section 5103(a) in 38 CFR 3.159, which 
reflects section 5103(a)'s requirement that VA give the notice upon 
receipt of a substantially complete application. See 38 CFR 
3.159(b)(1). In addition, VA defined ``substantially complete 
application'' for purposes of section 5103(a) notice. See 38 CFR 
3.159(a)(3). The purpose of this rulemaking is, in part, to clarify 
when VA has no duty to give section 5103(a) notice.
    Long before enactment of the VCAA, VA had defined ``application'' 
in 38 CFR 3.1(p). An ``application'' is ``a formal or informal 
communication in writing requesting a determination of entitlement or 
evidencing a belief in entitlement, to a benefit.'' 38 CFR 3.1(p). 
Because that definition pre-dated the VCAA, it is apparent that it was 
not issued in implementation of the VCAA. However, experience 
implementing section 5103(a) has disclosed a potential ambiguity in the 
regulations, which this rulemaking will clarify. That ambiguity is 
whether VA's receipt of a notice of disagreement (NOD) also triggers 
VA's duty to give section 5103(a) notice because the NOD can be viewed 
as satisfying the Sec.  3.1(p) definition of ``application.'' We 
propose to clarify that it does not.
    An NOD is the means by which a claimant initiates an appeal of a 
decision on a claim to the Board of Veterans' Appeals (Board). 38 
U.S.C. 7105(a); 38 CFR 20.200. ``A written communication from a 
claimant or his or her representative expressing dissatisfaction or 
disagreement with an adjudicative determination by the agency of 
original jurisdiction and a desire to contest the result will 
constitute [an NOD].'' 38 CFR 20.201.
    The ambiguity we propose to clarify is whether VA's receipt of an 
NOD triggers VA's duty to issue section 5103(a) notice. It appears from 
these regulatory definitions that a single written communication 
expressing disagreement with a decision of the agency of original 
jurisdiction could be viewed as constituting both an NOD under Sec.  
20.201 and an application under Sec.  3.1(p). (If a single written 
communication contains language expressing disagreement with a decision 
of the agency of original jurisdiction as well as language raising a 
new claim for benefits, section 5103(a) notice would be required in 
response to the new claim for benefits.) Because the definition in 
Sec.  3.1(p) is a holdover from before the VCAA and was not intended to 
govern when VA must give section 5103(a) notice, VA does not view it as 
dispositive of the question. Furthermore, section 5103(a) does not 
specify whether VA must issue section 5103(a) notice upon receipt of an 
NOD. For the reasons we explain below, VA believes that Congress did 
not intend to require section 5103(a) notice upon VA's receipt of an 
NOD.
    1. Congress intended VA to give section 5103(a) notice at the 
beginning of the claim process, but an NOD is filed after VA has 
decided a claim.
    VA's claim process begins with the filing of an application. 38 
U.S.C. 5101(a); 38 CFR 3.151(a), 3.152(a); Hensley v. West, 212 F.3d 
1255, 1259 (Fed. Cir. 2000) (discussing claims process before VCAA's 
enactment). As stated, upon VA's receipt of a complete or substantially 
complete application, VA provides section 5103(a) notice. The claimant 
has a year from the date the notice is sent to respond. 38 U.S.C. 
5103(b)(1). As we will further discuss, VA may decide the claim within 
that one-year period, but if the claimant subsequently submits relevant 
evidence within that one-year period, VA must readjudicate the claim. 
38 CFR 3.159(b)(1). After notice of a decision on a claim is sent to 
the claimant, the claimant has up to one year to file an NOD with that 
decision. 38 U.S.C. 7105(b)(1); 38 CFR 20.302. Following receipt of an 
NOD, unless VA can resolve the disagreement through development or 
review action, VA will issue a statement of the case. 38 U.S.C. 
7105(d)(1); 38 CFR 19.26. To perfect the appeal, the appellant has to 
file a substantive appeal in response to the statement of the case. 38 
U.S.C. 7105(a), (d)(3); 38 CFR 20.200, 20.302(b)(1). Following VA's 
receipt of a substantive appeal, the appeal is certified to the Board.
    From the above description of the claim process, it is apparent 
that, typically, an application starts the claim process and an NOD 
starts the appeal process after VA has decided a claim. However, the 
legislative history of the VCAA indicates that Congress intended VA to 
issue section 5103(a) notice early in the claim process. See S. Rep. 
No. 106-397, at 22 (2000) (``The Committee bill, in summary, modifies 
the pertinent statutes to reinstate VA's traditional practice of 
assisting veterans at the beginning of the claims process.''). The 
VCAA's legislative history indicates that Congress intended the new law 
to improve the efficiency of the adjudication process and the process 
by which subsequent claims for rating increases or service connection 
for additional conditions are handled, by ensuring proper development 
of the record when the claimant first submits an application for 
benefits. 146 Cong. Rec. S9211, S9212 (daily ed. Sept. 25, 2000) 
(statement of Sen. Rockefeller). The drafters wanted claimants to know 
early in the claim process what was necessary to substantiate their 
claims. Therefore, the VCAA was drafted to impose on VA the duty to 
issue section 5103(a) notice early in the claim process.
    However, an NOD, which, as stated, is received in response to a 
decision on a claim and begins the appeal process for a decision on a 
claim, may fall within the Sec.  3.1(p) definition of claim/
application. We find nothing in section 5103(a)'s language or in the 
legislative history indicating Congressional intent to require VA to 
give another section 5103(a) notice upon receipt of an NOD.
    2. Congress requires VA to issue a statement of the case in 
response to an NOD, so additional section 5103(a) notice would be 
redundant.
    Upon receipt of an NOD, applicable law requires VA to review and, 
if necessary, further develop the evidence on the claim for which an 
NOD was filed. If such development or review

[[Page 63734]]

does not resolve the disagreement, VA is required to prepare a 
statement of the case. The statement of the case in effect provides the 
claimant and any representative with notice similar to the notice 
required by section 5103(a). A statement of the case must include a 
summary of the evidence in the case pertinent to the issue or issues 
with which disagreement has been expressed and a citation of pertinent 
laws and regulations that controlled the decision. It also must include 
a discussion of how these laws and regulations affected the decision on 
the claim and a summary of the reasons for the decision made on each 
claim. 38 U.S.C. 7105(d)(1); 38 CFR 19.29. A statement of the case 
notifies a claimant of the evidence that VA received from the claimant 
and from other sources, and explains why that evidence dictated the 
result on that claim. A statement of the case therefore informs a 
claimant of the evidence needed to substantiate a claim for benefits 
addressed in the NOD. The requirement to issue a statement of the case 
could be viewed as being largely superfluous if section 5103(a) were 
interpreted to require VA to also provide notice under this section 
upon receipt of an NOD.
    3. Giving section 5103(a) notice at the appeal stage of the claim 
process results in logical inconsistencies in the claim process.
    Furthermore, interpreting section 5103(a) to require notice upon 
receipt of an NOD could result in the VA claim decision becoming final 
while the claimant still has time to submit the information and 
evidence necessary to substantiate a claim for benefits addressed in 
the NOD. Section 5103(b) of title 38, United States Code, provides a 
claimant one year to submit information or evidence requested in VA's 
section 5103(a) notice; however, an appellant has sixty days from the 
date VA mails a statement of the case, or the remainder of the one-year 
period beginning on the date notification of the determination being 
appealed is mailed, whichever period ends later, to file a formal or 
substantive appeal. 38 U.S.C. 7105(d)(3); 38 CFR 20.302(b). Thus, if 
the claimant does not complete the appeal initiated by the NOD or the 
Board decides the appeal before one year has elapsed from the date VA 
gave notice, VA's claim decision could become final while there is 
still time remaining to submit information and evidence necessary to 
substantiate a claim for benefits addressed in the NOD. Congress could 
not have intended such a result in this circumstance.
    4. Not requiring section 5103(a) notice upon VA's receipt of an NOD 
would be consistent with case law governing such notice.
    Besides the reasons given above regarding the intent of Congress, 
developing case law also supports not requiring section 5103(a) notice 
upon VA's receipt of an NOD. In Pelegrini v. Principi, 18 Vet. App. 
112, 120 (2004), the United States Court of Appeals for Veterans Claims 
(CAVC) concluded that VA must provide section 5103(a) notice to a 
claimant seeking service connection before an initial unfavorable RO 
decision is made on the claim. The Court of Appeals for the Federal 
Circuit has agreed. Mayfield v. Nicholson, 444 F.3d 1328, 1334 (Fed. 
Cir. 2006). In Dingess v. Nicholson, 19 Vet. App. 473, 489 (2006), the 
CAVC added that VA must provide section 5103(a) notice to a claimant on 
the initial-disability rating and effective-date elements of a claim 
before the initial adjudication on them. Requiring section 5103(a) 
notice upon VA's receipt of an NOD would not satisfy these requirements 
because notice given following receipt of an NOD necessarily implies 
notice given after VA had already decided the claim. Furthermore, 
because the law requires that VA address the initial disability-rating 
and effective-date elements of a claim in the notice it gives upon 
receipt of an application, requiring notice on such elements upon VA's 
receipt of an NOD would be redundant.
    Therefore, for the reasons stated above, we propose to state in a 
new paragraph, Sec.  3.159(b)(3), that VA does not have a duty to 
provide the section 5103(a) notice upon receipt of an NOD.
    Additionally, we propose to state that the section 5103(a) notice 
duty does not arise when the claimant is not eligible for the claimed 
benefit as a matter of law. In such circumstances, for example, in a 
claim for nonservice-connected disability pension when the claimant has 
no wartime service, there is no additional information or evidence the 
claimant could provide or VA could obtain that could substantiate the 
claim. This regulation would be consistent with the intent of Congress 
expressed in 38 U.S.C. 5103A(a)(2), which provides that ``[t]he 
Secretary is not required to provide assistance to a claimant under 
this section if no reasonable possibility exists that such assistance 
would aid in substantiating the claim.''
    The legislative history of sections 5103(a) and 5103A(a) supports a 
conclusion that VA action under section 5103(a) is not required if 
there is no relevant information or evidence to obtain because the 
claim is barred as a matter of law. The House Committee on Veterans' 
Affairs' report on legislation that became the VCAA stated with regard 
to the provision that became 38 U.S.C. 5103A(a):

    This language * * * recognizes that certain claims, including 
those that on their face seek benefits for ineligible claimants 
(such as a veteran who seeks pension benefits but lacks wartime 
service), or claims which have been previously decided on the same 
evidence can be decided without providing any assistance or 
obtaining any additional evidence, and authorizes the Secretary to 
decide those claims without providing any assistance under this 
subsection.

H.R. Rep. No. 106-781, at 10 (2000), reprinted in 2000 U.S.C.C.A.N. 
2006, 2012-13. Accordingly, Congress clearly contemplated that 
evidentiary development should not be required for claims that are 
barred as a matter of law.
    Our analysis is also supported by the case law of the CAVC. In 
Mason v. Principi, 16 Vet. App. 129, 132 (2002), the CAVC rejected the 
claimant's contention that service during the 1980 Iran hostage 
situation constitutes wartime service for purposes of nonservice-
connected disability pension pursuant to 38 U.S.C. 1521. The CAVC noted 
that there was no dispute as to the facts concerning the claimant's 
service and held that the claimant did not serve on active duty during 
a ``period of war'' as defined by 38 U.S.C. 101(11). Id. The CAVC 
further held that the VCAA was not applicable to the claim because the 
statute, and not the evidence, was dispositive of the claim. Id.; see 
also Smith v. Gober, 14 Vet. App. 227, 231-32 (2000) (VCAA does not 
affect issue of whether interest on past due benefits is payable 
pursuant to Federal statutes), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); 
Valiao v. Principi, 17 Vet. App. 229, 232 (2003) (``[w]here the facts 
averred by a claimant cannot conceivably result in any disposition of 
the appeal other than affirmance of the Board decision, the case should 
not be remanded for development [under the VCAA] that could not 
possibly change the outcome of the decision''). Thus, if a claim cannot 
be granted because, under undisputed facts, the claimant as a matter of 
law is not entitled to the benefit sought, it is reasonable to conclude 
that no section 5103(a) notice to the claimant is required.
    Therefore, VA proposes to state in Sec.  3.159(b)(3) that no 
section 5103(a) notice duty arises ``[w]hen, as a matter of law, 
entitlement to the benefit claimed cannot be established, including, 
but not limited to, when the claimant is ineligible for the benefit 
sought due to lack of qualifying service, lack of veteran status, or 
other lack of legal eligibility.''
    In addition to revising Sec.  3.159 to ensure that the regulation 
is clear for

[[Page 63735]]

users and consistent with statutory requirements, we propose to amend 
38 CFR 3.159(b)(1). First, we propose to remove the third sentence of 
current Sec.  3.159(b)(1), which states that VA will request the 
claimant to provide any evidence in the claimant's possession that 
pertains to the claim. Section 3.159 generally implements the notice 
and development requirements of sections 5103(a) and 5103A. The three 
notice requirements in section 5103(a) are currently prescribed in 
Sec.  3.159(b)(1) as follows: VA will notify the claimant (1) of the 
information and medical or lay evidence required to substantiate the 
claim, (2) of which information and evidence, if any, that the claimant 
is to provide to VA, and (3) of which information and evidence, if any, 
VA will attempt to obtain on behalf of the claimant. However, the third 
sentence of current Sec.  3.159(b)(1) is not required by statute and is 
redundant of the three statutory requirements from the perspective of 
what the claimant needs to submit to support the claim. As such, it is 
unnecessary as part of the regulation.
    In Paralyzed Veterans of America v. Secretary of Veterans Affairs, 
345 F.3d 1334 (Fed. Cir. 2003), the U.S. Court of Appeals for the 
Federal Circuit (Federal Circuit) addressed a specific challenge to the 
additional regulatory provision in Sec.  3.159 that states that VA will 
request that the claimant provide any evidence in the claimant's 
possession that pertains to the claim. The Federal Circuit expressly 
agreed with VA's rationale that the additional provision merely assists 
``the claimant by inviting any additional evidence that might help 
substantiate the claim.'' Id. at 1347. The Federal Circuit found that 
the additional provision was reasonable and ``effectively aimed at 
ensuring that the claimant makes the best showing possible to support 
his or her claim.'' Id. at 1348. However, the Federal Circuit stopped 
short of finding this ``additional regulatory provision'' to be 
necessary, especially in light of the other three requirements.
    In Pelegrini v. Principi, 18 Vet. App. 112 (2004), although the 
content of the section 5103(a) notice was not expressly at issue, the 
CAVC commented that the regulatory provision stating that VA will 
request that the claimant provide any evidence in the claimant's 
possession that pertains to the claim ``can be considered a fourth 
element of the requisite notice'' under section 5103(a). Id. at 121. 
However, because a request that the claimant provide any evidence that 
pertains to the claim is redundant of the notice required by statute 
from the perspective of what the claimant needs to submit to support 
the claim, a claimant will not be prejudiced by deleting this 
regulatory provision. A claimant who receives a section 5103(a) notice 
containing the three statutory elements will have received the same 
information regarding what the claimant needs to submit to support the 
claim as the claimant would have received had the claimant received a 
letter containing the three statutory elements and an additional 
request that the claimant provide any evidence in the claimant's 
possession that pertains to the claim.
    We wish to avoid the possibility that this regulatory provision, 
intended only to perpetuate VA's long-standing practice to invite a 
claimant to submit any evidence he or she wants VA to consider, may be 
misconstrued as a statutory requirement to include specific language in 
the notices parroting the sentence in the regulation. Therefore, we 
propose to delete the statement in current Sec.  3.159(b)(1) that VA 
will also request that the claimant provide any evidence in the 
claimant's possession that pertains to the claim. To avoid the 
possibility of similar misunderstandings regarding the nature of this 
provision and to ensure consistency between the manual and regulatory 
provisions, we further propose to rescind the provision of paragraph 
I.1.B.3.b of the Veterans Benefits Administration Adjudication 
Procedures Manual M21-1MR (VBA Manual M21-1MR), which currently 
requires ROs to send a letter to the claimant in response to a 
substantially complete application that ``asks the claimant to submit 
any evidence in his/her possession that pertains to the claim.''
    Second, for ease of use, we propose to add at the end of the second 
sentence of current Sec.  3.159(b)(1) the term ``notice'' in 
parentheses, to use as a term of art within Sec.  3.159(b)(1). The 
first two sentences of Sec.  3.159(b)(1) describe the content of the 
section 5103(a) notice, and rather than repeating the language 
describing the content of the notice in the rest of Sec.  3.159(b)(1), 
we propose to use the term ``notice'' to refer to the notice described 
in the first two sentences of Sec.  3.159(b)(1).
    Third, we propose to remove the fourth sentence of current Sec.  
3.159(b)(1). This sentence states: ``If VA does not receive the 
necessary information and evidence requested from the claimant within 
one year of the date of the notice, VA cannot pay or provide any 
benefits based on that application.'' This provision implemented 
language from section 5103 that was repealed by the Veterans Benefits 
Act of 2003, Public Law 108-183, section 701(b), 117 Stat. 2670. To 
ensure consistency with current law and the intent of Congress, we 
propose to replace this sentence with the following: ``The information 
and evidence that the claimant is informed that the claimant is to 
provide must be provided within one year of the date of the notice.''
    Fourth, we propose to amend the fifth sentence of current Sec.  
3.159(b)(1), which states that VA may decide the claim if the claimant 
has not responded to the section 5103(a) notice within 30 days. We 
propose to provide 45 days as a reasonable period after which VA may 
decide a claim if no response to the section 5103(a) notice has been 
received. Therefore, we propose to change the 30-day period in Sec.  
3.159(b)(1) to a 45-day period. To ensure consistency between the 
manual and regulatory provisions, we further propose to rescind the 
provision of paragraph I.1.B.3.c of the VBA Manual M21-1MR, which 
currently advises ROs to ``inform the claimant that if he/she does not 
respond to the request for information within 60 days, VA may decide 
the claim based on all the information and evidence in the file.'' The 
45-day period will provide a claimant with more time to respond to the 
section 5103(a) notice compared to the 30-day period in Sec.  
3.159(b)(1) and, at the same time, will allow VA to adjudicate the 
claim more expeditiously compared to the 60-day period in the manual 
provision. It is important to note that, regardless of whether VA 
decides a claim after the 45-day period, the claimant still has one 
year from the date of the section 5103(a) notice to submit the 
requested information and evidence.
    Additionally, 38 U.S.C. 5103A(g), ``Other assistance not 
precluded,'' states, ``Nothing in this section shall be construed as 
precluding the Secretary from providing such other assistance under 
subsection (a) to a claimant in substantiating a claim as the Secretary 
considers appropriate.'' In accordance with section 5103A(g), VA 
promulgated Sec.  3.159(c), obligating itself to give the assistance 
described in paragraphs (c)(1), (c)(2), and (c)(3) of Sec.  3.159, 
relating to assistance with obtaining records, to an individual 
attempting to reopen a finally decided claim. See Duty to Assist, 66 FR 
45,620, 45,628 (Aug. 29, 2001). In accordance with VA's intention to 
issue regulations when the Secretary deems it appropriate to provide 
the additional assistance in substantiating a claim contemplated in 
section 5103A(g), see id. at 45,629, we propose to add to Sec.  3.159 a 
new paragraph (g), which states that the authority recognized in 
subsection (g) of 38 U.S.C. 5103A is reserved to the sole

[[Page 63736]]

discretion of the Secretary and will be implemented, when deemed 
appropriate by the Secretary, through the promulgation of regulations. 
The main purpose of this provision is to avoid the potential disparate 
treatment of similarly situated claimants that could arise from 
inconsistent use in various parts of the agency of open-ended authority 
to provide ``extra'' development assistance. Also, this provision is 
consistent with the Secretary's determination, in the prior rulemaking 
for Sec.  3.159, of the appropriate level of assistance to be provided 
individuals based on VA's finite resources and the need to process 
claims in an efficient manner for the benefit of all veterans.
    Last, we propose to clarify another aspect of Sec.  3.159 to state 
that a medical examination or medical opinion is not necessary to 
establish a nexus between a current disability and service when a 
claimant satisfies the chronicity or continuity requirements in 38 CFR 
3.303(b). Section 3.303(b) states, in pertinent part, as follows: 
``With chronic disease shown as such in service (or within the 
presumptive period under Sec.  3.307) so as to permit a finding of 
service connection, subsequent manifestations of the same chronic 
disease at any later date, however remote, are service connected, 
unless clearly attributable to intercurrent causes * * *. For the 
showing of chronic disease in service there is required a combination 
of manifestations sufficient to identify the disease entity, and 
sufficient observation to establish chronicity at the time, as 
distinguished from merely isolated findings or a diagnosis including 
the word `Chronic.' When the disease identity is established * * *, 
there is no requirement of evidentiary showing of continuity. 
Continuity of symptomatology is required only where the condition noted 
during service (or in the presumptive period) is not, in fact, shown to 
be chronic or where the diagnosis of chronicity may be legitimately 
questioned. When the fact of chronicity in service is not adequately 
supported, then a showing of continuity after discharge is required to 
support the claim.'' If the chronicity or continuity requirements are 
met, there is no need for VA to provide a medical examination or 
medical opinion to determine whether there is a nexus between a 
veteran's current disability or death and some disease or symptoms 
during service. (Of course, a medical examination might be needed for 
some other reason, such as to determine the current level of disability 
in a claim for service connection.) We believe that it would be helpful 
to claimants, their representatives, and VA staff to explicitly state 
this within Sec.  3.159(c)(4)(i), which covers medical examinations and 
medical opinions. We therefore propose to add the following sentence 
after the first sentence in Sec.  3.159(c)(4)(i): ``A medical 
examination or medical opinion is not necessary to show a link between 
a veteran's current disability or death and some disease or symptoms 
during service when the evidence of record already satisfies the 
chronicity or continuity requirements in Sec.  3.303(b).''

Paperwork Reduction Act

    This document contains no provisions constituting a new collection 
of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501-3521).

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. Only VA beneficiaries could be directly affected. 
Therefore, pursuant to 5 U.S.C. 605(b), this amendment is exempt from 
the initial and final regulatory flexibility analysis requirements of 
sections 603 and 604.

Executive Order 12866

    Executive Order 12866 directs agencies to assess all costs and 
benefits of available regulatory alternatives and, when regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety, 
and other advantages; distributive impacts; and equity). The Order 
classifies a rule as a significant regulatory action requiring review 
by the Office of Management and Budget if it meets any one of a number 
of specified conditions, including: Having an annual effect on the 
economy of $100 million or more; creating a serious inconsistency or 
interfering with an action of another agency; materially altering the 
budgetary impact of entitlements or the rights of entitlement 
recipients; or raising novel legal or policy issues. VA has examined 
the economic, legal, and policy implications of this proposed rule and 
has concluded that it is a significant regulatory action because it 
raises novel legal or policy issues.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any year. This proposed rule would have no such effect on 
State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance Numbers

    The Catalog of Federal Domestic Assistance program numbers and 
titles for this proposal are 64.100, Automobiles and Adaptive Equipment 
for Certain Disabled Veterans and Members of the Armed Forces; 64.101, 
Burial Expenses Allowance for Veterans; 64.102, Compensation for 
Service-Connected Deaths for Veterans' Dependents; 64.103, Life 
Insurance for Veterans; 64.104, Pension for Non-Service-Connected 
Disability for Veterans; 64.105, Pension to Veterans Surviving Spouses, 
and Children; 64.106, Specially Adapted Housing for Disabled Veterans; 
64.109, Veterans Compensation for Service-Connected Disability; 64.110, 
Veterans Dependency and Indemnity Compensation for Service-Connected 
Death; 64.114, Veterans Housing--Guaranteed and Insured Loans; 64.115, 
Veterans Information and Assistance; 64.116,Vocational Rehabilitation 
for Disabled Veterans; 64.117, Survivors and Dependents Educational 
Assistance; 64.118, Veterans Housing--Direct Loans for Certain Disabled 
Veterans; 64.119, Veterans Housing--Manufactured Home Loans; 64.120, 
Post-Vietnam Era Veterans' Educational Assistance; 64.124, All-
Volunteer Force Educational Assistance; 64.125, Vocational and 
Educational Counseling for Servicemembers and Veterans; 64.126, Native 
American Veteran Direct Loan Program; 64.127, Monthly Allowance for 
Children of Vietnam Veterans Born with Spina Bifida; and 64.128, 
Vocational Training and Rehabilitation for Vietnam Veterans' Children 
with Spina Bifida or Other Covered Birth Defects.

List of Subjects in 38 CFR Part 3

    Administrative practice and procedure, Claims, Disability benefits, 
Health care, Pensions, Radioactive materials, Veterans, Vietnam.


[[Page 63737]]


    Approved: July 25, 2006.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.

    For the reasons set out in the preamble, VA proposes to amend 38 
CFR part 3 (subpart A) as follows:

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity 
Compensation

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

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

    2. Amend Sec.  3.159 as follows:
    a. In paragraph (b)(1), at the end of the first sentence after the 
word ``claim'', add the following parenthetical ``(hereafter in this 
paragraph referred to as the ``notice'')''.
    b. In paragraph (b)(1), at the beginning of the second sentence, 
add ``In the notice,''.
    c. In paragraph (b)(1), remove the third sentence.
    d. In paragraph (b)(1), remove the fourth sentence and add a new 
sentence in its place as set forth below.
    e. In paragraph (b)(1), remove ``request'' each place it appears 
and add, in its place, ``notice''.
    f. In paragraph (b)(1), remove ``30 days'' and add, in its place, 
``45 days''.
    g. Add paragraphs (b)(3), and (g).
    h. In paragraph (c)(4)(i), at the end of the first sentence, a new 
sentence is added.
    The revisions read as follows:


Sec.  3.159  Department of Veterans Affairs assistance in developing 
claims.

* * * * *
    (b) * * *
    (1) * * * The information and evidence that the claimant is 
informed that the claimant is to provide must be provided within one 
year of the date of the notice. * * *
* * * * *
    (3) VA has no duty to provide the notice described in paragraph 
(b)(1) of this section at times other than upon its receipt of a 
complete or substantially complete application. No such duty arises:
    (i) Upon receipt of a Notice of Disagreement.
    (ii) When, as a matter of law, entitlement to the benefit claimed 
cannot be established, including, but not limited to, when the claimant 
is ineligible for the benefit sought due to lack of qualifying service, 
lack of veteran status, or other lack of legal eligibility.

(Authority: 38 U.S.C. 5103(a), 5103A(a)(2))

    (c) * * *
    (4) * * *
    (i) * * * A medical examination or medical opinion is not necessary 
to show a link between a veteran's current disability or death and some 
disease or symptoms during service when the evidence of record already 
satisfies the chronicity or continuity requirements in Sec.  3.303(b). 
* * *
* * * * *
    (g) The authority recognized in subsection (g) of 38 U.S.C. 5103A 
is reserved to the sole discretion of the Secretary and will be 
implemented, when deemed appropriate by the Secretary, through the 
promulgation of regulations.

(Authority: 38 U.S.C. 5103A(g))


 [FR Doc. E6-18180 Filed 10-30-06; 8:45 am]
BILLING CODE 8320-01-P