Vocational Rehabilitation and Employment Program-Duty To Assist, 37402-37406 [E8-14823]

Download as PDF 37402 Federal Register / Vol. 73, No. 127 / Tuesday, July 1, 2008 / Proposed Rules 18. In § 4022.63: a. Redesignate paragraph (c)(1) as paragraph (c)(1)(i) and redesignate paragraph (c)(2) as paragraph (c)(1)(ii). b. Redesignate the introductory text of paragraph (c) as paragraph (c)(1) and add a new heading ‘‘In general.’’ c. In paragraph (e), amend Example 1 by adding a new paragraph at the end: PPA 2006 bankruptcy termination. In a PPA 2006 bankruptcy termination, the methodology would be the same, but ‘‘bankruptcy filing date’’ would be substituted for ‘‘proposed termination date’’ each place that ‘‘proposed termination date’’ appears in the example, and the numbers would change accordingly. d. Add new paragraphs (b)(3) and (c)(2) to read as follows: § 4022.63 Estimated title IV benefits. * * * * * (b)* * * (3) PPA 2006 bankruptcy termination. In a PPA 2006 bankruptcy termination, ‘‘bankruptcy filing date’’ is substituted for ‘‘proposed termination date’’ in the first sentence of paragraph (b)(2) of this section. (c) In general. * * * (2) PPA 2006 bankruptcy termination. In a PPA 2006 bankruptcy termination, ‘‘bankruptcy filing date’’ is substituted for ‘‘proposed termination date’’ each place that ‘‘proposed termination date’’ appears in paragraph (c)(1) of this section. * * * * * 19. In § 4022.82: a. Amend paragraph (a)(1) by redesignating the second sentence as paragraph (a)(1)(i), and add a new heading ‘‘Non-PPA 2006 bankruptcy termination’’ and by redesignating the third sentence as paragraph (a)(1)(iii) and add a new heading ‘‘Facts and circumstances.’’ b. Amend the newly redesignated (a)(1)(iii) by removing ‘‘The PBGC may, however, utilize’’ and adding in its place ‘‘PBGC may use’’. c. Add new paragraph (a)(1)(ii) to read as follows: sroberts on PROD1PC70 with PROPOSALS § 4022.82 Method of recoupment. (a) * * * (1) * * * (i) Non-PPA 2006 bankruptcy termination.*** (ii) PPA 2006 bankruptcy termination. PBGC will determine the amount of benefit payable with respect to the participant under title IV of ERISA taking into account the limitations in sections 4022(g) and 4044(e) (and corresponding provisions of these regulations), and will determine the present value of that amount as of the VerDate Aug<31>2005 14:54 Jun 30, 2008 Jkt 214001 termination date, using PBGC interest rates and factors in effect on the termination date. (iii) Facts and circumstances.* * * * * * * * 20. In Appendix D to Part 4022, amend the introductory text by removing ‘‘§ 4022.22(b)’’ and adding in its place ‘‘§ 4022.22(a)(2)’’, and by replacing ‘‘:’’ with a ‘‘.’’, and by adding a sentence at the end to read as follows: ‘‘In a PPA 2006 bankruptcy termination, the applicable year is the calendar year in which the bankruptcy filing date occurred.’’ PART 4044—ALLOCATION OF ASSETS IN SINGLE-EMPLOYER PLANS 21. The authority citation for part 4044 continues to read as follows: Authority: 29 U.S.C. 1301(a), 1302(b)(3), 1341, 1344, 1362. 22. In the Note before subpart A: a. In the second sentence, remove ‘‘in the PBGC’s’’ and add in its place ‘‘in other provisions of the PBGC’s’’. b. After the second sentence, add a sentence to read as follows: ‘‘In addition, the Pension Protection Act of 2006 has made a number of significant changes, including changes to the treatment in priority category 4 of benefits of owners, and changes to the valuation of PBGC recoveries of liabilities under section 4062(c) of ERISA.’’ 23. In § 4044.2: a. Amend paragraph (a) by removing ‘‘annuity, basic-type benefit’’ and adding in its place ‘‘annuity, bankruptcy filing date, basic-type benefit’’ and by removing ‘‘plan administrator, singleemployer plan’’ and adding in its place ‘‘plan administrator, PPA 2006 bankruptcy termination, singleemployer plan’’. b. In paragraph (b), amend the definition of ‘‘valuation date’’ by removing ‘‘date of termination’’ and adding in its place ‘‘termination date’’. 24. In § 4044.10(b), add the phrase ‘‘, but, in a PPA 2006 bankruptcy termination, subject to the limitations in sections 4022(g) and 4044(e) of ERISA (and corresponding provisions of these regulations)’’, at the end of the last sentence. 25. In § 4044.13, add new paragraph (c) to read as follows: § 4044.13 Priority category 3 benefits. * * * * * (c) PPA 2006 bankruptcy termination. In a PPA 2006 bankruptcy termination, ‘‘bankruptcy filing date’’ is substituted for ‘‘termination date’’ and ‘‘date of the plan termination’’ each place that PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 ‘‘termination date’’ and ‘‘date of the plan termination’’ appear in paragraphs (a) and (b) of this section. In paragraph (b)(5), ‘‘the bankruptcy filing date’’ is substituted for ‘‘termination’’ in the phrase ‘‘during the fourth and fifth years preceding termination.’’ Example: A plan provides for normal retirement at age 65 and has only one early retirement benefit: a subsidized early retirement benefit for participants who terminate employment on or after age 60 with 20 years of service. These plan provisions have been unchanged since 1990. The contributing sponsor of the plan files a bankruptcy petition in June 2008, and the plan terminates during the bankruptcy with a termination date in September 2010. A participant retired in July 2007, at which time he was age 60 and had 20 years of service, and began receiving the subsidized early retirement benefit. The participant has no benefit in priority category 3, because he was not eligible to retire three or more years before the June 2008 bankruptcy filing date. 26. Amend § 4014.14 by removing ‘‘basic-type benefits that do not exceed the guarantee limits set forth in subpart B of part 4022 of this chapter’’ and adding in its place ‘‘guaranteed benefits’’. Issued in Washington, DC, this day of June, 2008. Vincent K. Snowbarger, Acting Director, Pension Benefit Guaranty Corporation. [FR Doc. E8–14813 Filed 6–30–08; 8:45 am] BILLING CODE 7709–01–P DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 21 RIN 2900–AM91 Vocational Rehabilitation and Employment Program—Duty To Assist Department of Veterans Affairs. Proposed rule. AGENCY: ACTION: SUMMARY: This document proposes to amend the vocational rehabilitation and employment regulations of the Department of Veterans Affairs (VA) concerning VA’s responsibility to provide notification regarding information or evidence needed for an individual to substantiate a claim for vocational rehabilitation benefits and services, and regarding applicable time periods. VA’s duty to assist claimants in substantiating their claims for benefits is expanded by The Veterans Claims Assistance Act of 2000, and is E:\FR\FM\01JYP1.SGM 01JYP1 Federal Register / Vol. 73, No. 127 / Tuesday, July 1, 2008 / Proposed Rules incorporated in this rulemaking. Specifically, upon receipt of a substantially complete application for benefits, VA will make reasonable efforts to help the claimant obtain the evidence necessary to substantiate the claim. In addition, VA proposes to make changes to improve readability and other clarifying changes that are nonsubstantive. Comments must be received on or before September 2, 2008. ADDRESSES: Written comments may be submitted through https:// www.Regulations.gov; by mail or handdelivery to the Director, Regulations Management (00REG), Department of Veterans Affairs, 810 Vermont Ave., 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– AM91—Vocational Rehabilitation and Employment Program—Duty to Assist.’’ 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) 461–4902 for an appointment. This is not a toll free phone number. In addition, during the comment period, comments may be viewed online through the Federal Docket Management System (FDMS) at https:// www.Regulations.gov. DATES: sroberts on PROD1PC70 with PROPOSALS FOR FURTHER INFORMATION CONTACT: Alvin Bauman, Senior Policy Analyst, Vocational Rehabilitation and Employment Service (28), Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Ave., NW., Washington, DC 20420, (202) 461– 9613. SUPPLEMENTARY INFORMATION: In 38 CFR part 21, Subpart A—Vocational Rehabilitation Under 38 U.S.C. Chapter 31, we propose to amend VA’s regulations concerning claims for vocational rehabilitation and employment benefits and services, by amending 38 CFR 21.32 and adding § 21.33 with regard to VA’s duty to assist claimants and applicable time limits. Those provisions would apply to claimants for such benefits and services under 38 U.S.C. chapter 31, Training and Rehabilitation for Veterans with Service-Connected Disabilities and 38 U.S.C. chapter 18, Benefits for Children of Vietnam Veterans and Certain Other Veterans. The Veterans Claims Assistance Act of 2000 (Pub. L. 106–475) (VCAA), enacted November 9, 2000, included provisions amending 38 U.S.C. 5102 VerDate Aug<31>2005 14:54 Jun 30, 2008 Jkt 214001 and 5103 and adding new sections 38 U.S.C. 5100 and 5103A, pertaining to VA’s duty to assist claimants in obtaining evidence in support of claims for benefits. Upon receipt of a substantially complete application for benefits, VA’s duty under the VCAA is to make reasonable efforts to help the claimant obtain the evidence necessary to substantiate the claim. This effort is commonly referred to as the ‘‘duty to assist.’’ VA will refrain from providing assistance in obtaining evidence for a claim if the substantially complete application for benefits indicates that there is no reasonable possibility that any assistance VA would provide to the claimant would substantiate the claim. Similarly, VA will discontinue providing assistance in obtaining evidence for a claim if the evidence obtained indicates that there is no reasonable possibility that further assistance would substantiate the claim. Finally, VA will not consider the receipt of a notice of disagreement relating to a claim as an ‘‘application’’ for benefits that would trigger its duty to assist. Section 701 of the Veterans Benefits Act of 2003 (Pub. L. 108–183) further amended 38 U.S.C. 5102 and 5103 regarding time limitations relevant to claimant’s applications. Public Law 108–183 allows VA to decide a claim before the one-year time limit for submitting evidence expires. Under 38 U.S.C. 5103A(e), VA is directed to prescribe regulations to carry out the provisions of section 5103A. In the Federal Register of August 29, 2001 (66 FR 45620), VA issued a final rule amending 38 CFR part 3, subpart A, to carry out those and other provisions of the VCAA with respect to claims for benefits that are governed by 38 CFR part 3 (including compensation, pension, dependency and indemnity compensation, burial benefits, monetary benefits ancillary to those benefits, and special benefits) (66 FR at 45629). In the Federal Register of April 30, 2008 (73 FR 23353), VA published a final rule amending provisions in 38 CFR 3.159 that were included in those 2001 regulations. The final rule was based on the rationale in its preamble and in the preamble to a proposed rule that VA published on October 31, 2006 (71 FR 63732). Those amendments were intended, in part, to clarify when VA has no duty to provide notice under 38 U.S.C. 5103(a) ‘‘of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate’’ a claim for benefits. In particular, that rule included provisions that were intended to clarify that VA’s receipt of a notice of disagreement (the means to initiate an PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 37403 appeal of a decision on a claim to the Board of Veterans’ Appeals, under 38 U.S.C. 7105 and 38 CFR 20.200) does not trigger VA’s duty to provide that notice. (See 73 FR 23353–23354, 23356; 71 FR 63732–63734.) In addition, in the Federal Register of April 5, 2007 (72 FR 16962), VA published a final rule that included provisions concerning, among other matters, VA’s duty to assist claimants for VA education benefits. The final rule was based on the rationale in its preamble and in the preamble to a proposed rule that VA published in the Federal Register of February 22, 2006 (71 FR 9196). The final rule’s provisions concerning VA’s duty to assist claimants for VA education benefits, which were adopted without change from those in the proposed rule, are contained in 38 CFR 21.1031 and 21.1032. We propose to amend § 21.32 and to add § 21.33 to describe VA’s responsibilities for notifying the claimant of necessary information or evidence when a claim for vocational rehabilitation and employment benefits is filed, the time periods for response by the claimant or in which VA may take action in adjudicating the claim, and VA’s duty to assist claimants in obtaining evidence. In particular, we are proposing that VA may decide the claim if the claimant has not responded to that notice within 30 days from the date of the notice, as set forth in proposed § 21.32(d). Under that paragraph, if the claimant subsequently submits the specified evidence or information within one year of VA’s request, VA must readjudicate the claim. We believe that 30 days is a reasonable time period for these claimants to respond. It is specifically supported by our experience in administering VA’s vocational rehabilitation programs, and is the same time for response provided in other circumstances under those programs. A claimant may delay VA action beyond the 30 days by responding with a request that VA wait beyond the 30-day period while the claimant attempts to gather evidence. The proposed 30-day time period also is based on administrative concerns, and is intended to assure that a lack of response does not unnecessarily delay a VA decision on the claim. The proposed rule states that, for purposes of 38 CFR 21.32 and 21.33, the term ‘‘application’’ does not include a notice of disagreement. This is consistent with the provisions of 38 CFR 3.159(b)(3) as added, effective May 30, 2008, by the April 30, 2008, final rule (73 FR 23353, 23356), and the accompanying rationale published by VA in that rule’s preamble (73 FR E:\FR\FM\01JYP1.SGM 01JYP1 37404 Federal Register / Vol. 73, No. 127 / Tuesday, July 1, 2008 / Proposed Rules 23353–23354) and in the preamble to the corresponding proposed rule (71 FR 63732–63734). The proposed changes to § 21.32 are also intended to improve readability, including by removing provisions in current § 21.32 that we believe are unnecessary, and to make other clarifying changes that are nonsubstantive. These proposed rules would apply to the vocational rehabilitation programs administered by the Secretary and would apply to claims for vocational rehabilitation benefits and services filed on or after the effective date of the final rule. Finally, we propose to add § 21.8015 to Subpart M of part 21 to clarify VA’s responsibilities to claimants who apply for vocational rehabilitation benefits and services under that subpart. The proposed section would provide that §§ 21.32 and 21.33, which are located in subpart A, would apply also to claims for such benefits and services under subpart M. safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in the Executive Order. The economic, interagency, budgetary, legal, and policy implications of this proposed rule have been examined and it has been determined to be a significant regulatory action under Executive Order 12866 because it may raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in the Executive Order. Paperwork Reduction Act of 1995 This document contains no provisions constituting a new collection of information under the Paperwork Reduction Act (44 U.S.C. 3501–3521). The Secretary hereby certifies that this proposed regulatory amendment 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. This proposed amendment would not directly affect any small entities. Only individuals could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this proposed amendment is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604. sroberts on PROD1PC70 with PROPOSALS 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 1 year. This proposed rule would have no such effect on State, local, and tribal governments, or on the private sector. 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 Executive Order classifies a ‘‘significant regulatory action,’’ requiring review by the Office of Management and Budget (OMB) unless OMB waives such review, as any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or VerDate Aug<31>2005 14:54 Jun 30, 2008 Jkt 214001 Regulatory Flexibility Act Catalog of Federal Domestic Assistance The Catalog of Federal Domestic Assistance numbers and titles for the programs that would be affected by this proposed rule are 64.116, Vocational Rehabilitation for Disabled Veterans, and 64.128, Vocational Training and Rehabilitation for Vietnam Veterans’ Children with Spina Bifida or Other Covered Defects. List of Subjects in 38 CFR Part 21 Administrative practice and procedure, Armed forces, Civil rights, Claims, Colleges and universities, Conflict of interests, Education, Employment, Grant programseducation, Grant programs-veterans, Health care, Loan programs-education, Loan programs-veterans, Manpower training programs, Reporting and recordkeeping requirements, Schools, Travel and transportation expenses, Veterans, Vocational education, Vocational rehabilitation. PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 Approved: March 21, 2008. Gordon H. Mansfield, Deputy Secretary of Veterans Affairs. For the reasons set forth in the preamble, VA proposes to amend 38 CFR part 21 (subparts A and M) as follows: PART 21—VOCATIONAL REHABILITATION AND EDUCATION Subpart A—Vocational Rehabilitation and Employment Under 38 U.S.C. Chapter 31 1. The authority citation for part 21, subpart A is revised to read as follows: Authority: 38 U.S.C. 501(a), chs. 18, 31, and as noted in specific sections. 2. The Subpart A heading is revised as set forth above. 3. Revise § 21.32 to read as follows: § 21.32 Notification by VA of necessary information or evidence when a claim is filed; time for claimant response and VA action. The provisions of this section apply to claims that are governed by this subpart or subpart M of this part. (a) VA has a duty to notify claimants of necessary information or evidence. Except when a claim cannot be substantiated because there is no legal basis for the claim, or undisputed facts render the claimant ineligible for the claimed benefit, when VA receives a complete or substantially complete application for vocational rehabilitation benefits and services provided under this subpart or subpart M of this part VA will: (1) Notify the claimant of any information and evidence that is necessary to substantiate the claim; (2) Inform the claimant which information and evidence, if any, the claimant is to provide to VA and which information and evidence, if any, VA will try to obtain for the claimant; and (3) Inform the claimant of the time limit, as provided in paragraph (c) of this section, for responding to VA’s notification, and of actions, as provided in paragraph (d) of this section, that VA may take to decide the claim if the claimant does not respond to such notification within 30 days. (b) Definitions for purposes of §§ 21.32 and 21.33. For purposes of this section and § 21.33: (1) The term application does not include a notice of disagreement. (2) The term notification means the notice described in paragraph (a) of this section. (3) The term substantially complete application means, for an individual’s first application for vocational E:\FR\FM\01JYP1.SGM 01JYP1 sroberts on PROD1PC70 with PROPOSALS Federal Register / Vol. 73, No. 127 / Tuesday, July 1, 2008 / Proposed Rules rehabilitation benefits and services administered by VA, an application containing: (i) The claimant’s name; (ii) His or her relationship to the veteran, if applicable; (iii) Sufficient information for VA to verify the claimed service, if applicable; and (iv) The benefit claimed. (4) The term information means nonevidentiary facts, such as the claimant’s Social Security number or address, or the name of the educational institution the claimant is attending. (c) Time limit. Any information and evidence described in the notification as information and evidence that the claimant is to provide must be received by VA within one year from the date of the notification. If VA does not receive the information and evidence from the claimant within that time period, VA may adjudicate the claim based on the information and evidence in the file. (d) Actions VA may take after 30 days if no response from claimant. If the claimant has not responded to the notification within 30 days, VA may decide the claim before the expiration of the one-year period, based on all the information and evidence in the file, including information and evidence it has obtained on behalf of the claimant. If VA does so, however, and the claimant subsequently provides the information and evidence specified in the notification within one year of the date of the notification, VA must readjudicate the claim. If VA’s decision on a readjudication is favorable to the claimant, the award of vocational rehabilitation benefits and services shall take effect as if the prior decision by VA on the claim had not been made. (e) Incomplete applications. If VA receives an incomplete application for benefits, it will notify the claimant of the information necessary to complete the application and will defer assistance until the claimant submits this information. If the information necessary to complete the application is not received by VA within one year from the date of such notice, VA cannot pay or provide any benefits based on that application. (f) Who VA will notify. For the purpose of this section, when VA seeks to notify a claimant, it will provide such notice to: (1) The claimant; (2) His or her fiduciary, if any; and (3) His or her representative, if any. (Authority: 38 U.S.C. 5102, 5103, 5103A(a)(3)) 4. Immediately after § 21.32 and prior to the cross-reference, add § 21.33, to read as follows: VerDate Aug<31>2005 14:54 Jun 30, 2008 Jkt 214001 § 21.33 VA has a duty to assist claimants in obtaining evidence. 37405 (ii) The approximate time frame covered by the records; and The provisions of this section apply to (iii) In the case of medical treatment claims that are governed by this subpart records, the condition for which or subpart M of this part. treatment was provided. (a) VA’s duty to assist begins when VA (4) If necessary, the claimant must receives a complete or substantially authorize the release of existing records complete application. (1) Except as in a form acceptable to the person, provided in paragraph (d) of this company, agency, or other custodian section, upon receipt of a complete or holding the records. substantially complete application for (Authority: 38 U.S.C. 5103A) vocational rehabilitation benefits and (c) Obtaining records in the custody of services under this subpart or subpart M a Federal department or agency. (1) of this part, VA will: Subject to paragraphs (c)(2) through (i) Make reasonable efforts to help a (c)(4) of this section, VA will make as claimant obtain evidence necessary to many requests as are necessary to obtain substantiate the claim; and relevant records from a Federal (ii) Give the assistance described in department or agency. These records paragraphs (b) and (c) of this section to include but are not limited to: an individual attempting to reopen a (i) Military records; finally decided claim. (ii) Medical and other records from (2) VA will not pay any fees a VA medical facilities; custodian of records may charge to (iii) Records from non-VA facilities provide the records VA requests. providing examination or treatment at (Authority: 38 U.S.C. 5103A) VA expense; and (b) Obtaining records not in the (iv) Records from other Federal custody of a Federal department or agencies. agency. (1) VA will make reasonable (2) VA will cease its efforts to obtain efforts to obtain relevant records not in records from a Federal department or the custody of a Federal department or agency only if VA concludes that the agency. These records include relevant records sought do not exist or that records from: further efforts to obtain those records (i) State or local governments; would be futile. Cases in which VA may (ii) Private medical care providers; conclude that no further efforts are (iii) Current or former employers; and required include cases in which the (iv) Other non-Federal governmental Federal department or agency advises sources. VA that the requested records do not (2) The reasonable efforts described in exist or that the custodian of such paragraph (b)(1) of this section will records does not have them. generally consist of an initial request for (3) The claimant must cooperate fully the records and, if VA does not receive with VA’s reasonable efforts to obtain the records, at least one follow-up relevant records from Federal request. The following are exceptions to department or agency custodians. At this provision concerning the number of VA’s request, the claimant must provide requests that VA generally will make: enough information to identify and (i) VA will not make a follow-up locate the existing records, including: request if a response to the initial (i) The custodian or agency holding request indicates that the records sought the records; do not exist or that a follow-up request (ii) The approximate time frame for the records would be futile. covered by the records; and (ii) If VA receives information (iii) In the case of medical treatment showing that subsequent requests to this records, the condition for which or another custodian could result in treatment was provided. obtaining the records sought, reasonable (4) If necessary, the claimant must efforts will include an initial request authorize the release of existing records and, if VA does not receive the records, in a form acceptable to the custodian or at least one follow-up request to the new agency holding the records. source or an additional request to the (Authority: 38 U.S.C. 5103A) original source. (d) Circumstances where VA will (3) The claimant must cooperate fully refrain from or discontinue providing with VA’s reasonable efforts to obtain assistance. VA will refrain from relevant records from non-Federal providing assistance in obtaining agency or department custodians. The evidence for a claim if the substantially claimant must provide enough complete or complete application for information to identify and locate the benefits indicates that there is no existing records, including: (i) The person, company, agency, or reasonable possibility that any other custodian holding the records; assistance VA would provide to the PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 E:\FR\FM\01JYP1.SGM 01JYP1 37406 Federal Register / Vol. 73, No. 127 / Tuesday, July 1, 2008 / Proposed Rules claimant would substantiate the claim. VA will discontinue providing assistance in obtaining evidence for a claim if the evidence obtained indicates that there is no reasonable possibility that further assistance would substantiate the claim. Circumstances in which VA will refrain from or discontinue providing assistance in obtaining evidence include but are not limited to: (1) The claimant’s ineligibility for the benefit sought because of lack of qualifying service, lack of veteran status, or other lack of legal eligibility; (2) Claims that are inherently not credible or clearly lack merit; (3) An application requesting a benefit to which the claimant is not entitled as a matter of law; and (4) The claimant’s lack of cooperation in providing or requesting information or evidence necessary to substantiate the claim. (Authority: 38 U.S.C. 5103A) sroberts on PROD1PC70 with PROPOSALS (e) Duty to notify claimant of inability to obtain records. (1) VA will notify the claimant either orally or in writing when VA: (i) Has made reasonable efforts to obtain relevant non-Federal records, but is unable to obtain them; or (ii) After continued efforts to obtain Federal records, concludes that it is reasonably certain they do not exist or VerDate Aug<31>2005 14:54 Jun 30, 2008 Jkt 214001 that further efforts to obtain them would be futile. (2) For non-Federal records requests, VA may provide the notice to the claimant at the same time it makes its final attempt to obtain the relevant records. (3) VA will make a written record of any oral notice conveyed under this paragraph to the claimant. (4) The notice to the claimant must contain the following information: (i) The identity of the records VA was unable to obtain; (ii) An explanation of the efforts VA made to obtain the records; (iii) The fact described in paragraph (e)(1)(i) or (e)(1)(ii) of this section; (iv) A description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and (v) A notice that the claimant is ultimately responsible for obtaining the evidence. (5) If VA becomes aware of the existence of relevant records before deciding the claim, VA will notify the claimant of the existence of such records and ask that the claimant provide a release for the records. If the claimant does not provide any necessary release of the relevant records that VA PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 is unable to obtain, VA will ask that the claimant obtain the records and provide them to VA. (6) For the purpose of this section, if VA must notify the claimant, VA will provide notice to: (i) The claimant; (ii) His or her fiduciary, if any; and (iii) His or her representative, if any. (Authority: 38 U.S.C. 5102, 5103(a), 5103A) Subpart M—Vocational Training and Rehabilitation for Certain Children of Vietnam Veterans—Spina Bifida and Covered Birth Defects 5. The authority citation for part 21, subpart M continues to read as follows: Authority: 38 U.S.C. 101, 501, 512, 1151 note, ch. 18, 5112, and as noted in specific sections. 6. Add § 21.8015 to read as follows: § 21.8015 Notification by VA of necessary information or evidence when a claim is filed; time for claimant response and VA action; and VA’s duty to assist claimants in obtaining evidence. The provisions of §§ 21.32 and 21.33 of subpart A of this part also apply to claims for benefits and services under this subpart. [FR Doc. E8–14823 Filed 6–30–08; 8:45 am] BILLING CODE 8320–01–P E:\FR\FM\01JYP1.SGM 01JYP1

Agencies

[Federal Register Volume 73, Number 127 (Tuesday, July 1, 2008)]
[Proposed Rules]
[Pages 37402-37406]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-14823]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 21

RIN 2900-AM91


Vocational Rehabilitation and Employment Program--Duty To Assist

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: This document proposes to amend the vocational rehabilitation 
and employment regulations of the Department of Veterans Affairs (VA) 
concerning VA's responsibility to provide notification regarding 
information or evidence needed for an individual to substantiate a 
claim for vocational rehabilitation benefits and services, and 
regarding applicable time periods. VA's duty to assist claimants in 
substantiating their claims for benefits is expanded by The Veterans 
Claims Assistance Act of 2000, and is

[[Page 37403]]

incorporated in this rulemaking. Specifically, upon receipt of a 
substantially complete application for benefits, VA will make 
reasonable efforts to help the claimant obtain the evidence necessary 
to substantiate the claim. In addition, VA proposes to make changes to 
improve readability and other clarifying changes that are 
nonsubstantive.

DATES: Comments must be received on or before September 2, 2008.

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., 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-AM91--Vocational Rehabilitation and Employment Program--
Duty to Assist.'' 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) 461-4902 for an 
appointment. This is not a toll free phone number. 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: Alvin Bauman, Senior Policy Analyst, 
Vocational Rehabilitation and Employment Service (28), Veterans 
Benefits Administration, Department of Veterans Affairs, 810 Vermont 
Ave., NW., Washington, DC 20420, (202) 461-9613.

SUPPLEMENTARY INFORMATION: In 38 CFR part 21, Subpart A--Vocational 
Rehabilitation Under 38 U.S.C. Chapter 31, we propose to amend VA's 
regulations concerning claims for vocational rehabilitation and 
employment benefits and services, by amending 38 CFR 21.32 and adding 
Sec.  21.33 with regard to VA's duty to assist claimants and applicable 
time limits. Those provisions would apply to claimants for such 
benefits and services under 38 U.S.C. chapter 31, Training and 
Rehabilitation for Veterans with Service-Connected Disabilities and 38 
U.S.C. chapter 18, Benefits for Children of Vietnam Veterans and 
Certain Other Veterans.
    The Veterans Claims Assistance Act of 2000 (Pub. L. 106-475) 
(VCAA), enacted November 9, 2000, included provisions amending 38 
U.S.C. 5102 and 5103 and adding new sections 38 U.S.C. 5100 and 5103A, 
pertaining to VA's duty to assist claimants in obtaining evidence in 
support of claims for benefits. Upon receipt of a substantially 
complete application for benefits, VA's duty under the VCAA is to make 
reasonable efforts to help the claimant obtain the evidence necessary 
to substantiate the claim. This effort is commonly referred to as the 
``duty to assist.'' VA will refrain from providing assistance in 
obtaining evidence for a claim if the substantially complete 
application for benefits indicates that there is no reasonable 
possibility that any assistance VA would provide to the claimant would 
substantiate the claim. Similarly, VA will discontinue providing 
assistance in obtaining evidence for a claim if the evidence obtained 
indicates that there is no reasonable possibility that further 
assistance would substantiate the claim. Finally, VA will not consider 
the receipt of a notice of disagreement relating to a claim as an 
``application'' for benefits that would trigger its duty to assist. 
Section 701 of the Veterans Benefits Act of 2003 (Pub. L. 108-183) 
further amended 38 U.S.C. 5102 and 5103 regarding time limitations 
relevant to claimant's applications. Public Law 108-183 allows VA to 
decide a claim before the one-year time limit for submitting evidence 
expires.
    Under 38 U.S.C. 5103A(e), VA is directed to prescribe regulations 
to carry out the provisions of section 5103A. In the Federal Register 
of August 29, 2001 (66 FR 45620), VA issued a final rule amending 38 
CFR part 3, subpart A, to carry out those and other provisions of the 
VCAA with respect to claims for benefits that are governed by 38 CFR 
part 3 (including compensation, pension, dependency and indemnity 
compensation, burial benefits, monetary benefits ancillary to those 
benefits, and special benefits) (66 FR at 45629).
    In the Federal Register of April 30, 2008 (73 FR 23353), VA 
published a final rule amending provisions in 38 CFR 3.159 that were 
included in those 2001 regulations. The final rule was based on the 
rationale in its preamble and in the preamble to a proposed rule that 
VA published on October 31, 2006 (71 FR 63732). Those amendments were 
intended, in part, to clarify when VA has no duty to provide notice 
under 38 U.S.C. 5103(a) ``of any information, and any medical or lay 
evidence, not previously provided to the Secretary that is necessary to 
substantiate'' a claim for benefits. In particular, that rule included 
provisions that were intended to clarify that VA's receipt of a notice 
of disagreement (the means to initiate an appeal of a decision on a 
claim to the Board of Veterans' Appeals, under 38 U.S.C. 7105 and 38 
CFR 20.200) does not trigger VA's duty to provide that notice. (See 73 
FR 23353-23354, 23356; 71 FR 63732-63734.)
    In addition, in the Federal Register of April 5, 2007 (72 FR 
16962), VA published a final rule that included provisions concerning, 
among other matters, VA's duty to assist claimants for VA education 
benefits. The final rule was based on the rationale in its preamble and 
in the preamble to a proposed rule that VA published in the Federal 
Register of February 22, 2006 (71 FR 9196). The final rule's provisions 
concerning VA's duty to assist claimants for VA education benefits, 
which were adopted without change from those in the proposed rule, are 
contained in 38 CFR 21.1031 and 21.1032.
    We propose to amend Sec.  21.32 and to add Sec.  21.33 to describe 
VA's responsibilities for notifying the claimant of necessary 
information or evidence when a claim for vocational rehabilitation and 
employment benefits is filed, the time periods for response by the 
claimant or in which VA may take action in adjudicating the claim, and 
VA's duty to assist claimants in obtaining evidence. In particular, we 
are proposing that VA may decide the claim if the claimant has not 
responded to that notice within 30 days from the date of the notice, as 
set forth in proposed Sec.  21.32(d). Under that paragraph, if the 
claimant subsequently submits the specified evidence or information 
within one year of VA's request, VA must readjudicate the claim. We 
believe that 30 days is a reasonable time period for these claimants to 
respond. It is specifically supported by our experience in 
administering VA's vocational rehabilitation programs, and is the same 
time for response provided in other circumstances under those programs. 
A claimant may delay VA action beyond the 30 days by responding with a 
request that VA wait beyond the 30-day period while the claimant 
attempts to gather evidence. The proposed 30-day time period also is 
based on administrative concerns, and is intended to assure that a lack 
of response does not unnecessarily delay a VA decision on the claim.
    The proposed rule states that, for purposes of 38 CFR 21.32 and 
21.33, the term ``application'' does not include a notice of 
disagreement. This is consistent with the provisions of 38 CFR 
3.159(b)(3) as added, effective May 30, 2008, by the April 30, 2008, 
final rule (73 FR 23353, 23356), and the accompanying rationale 
published by VA in that rule's preamble (73 FR

[[Page 37404]]

23353-23354) and in the preamble to the corresponding proposed rule (71 
FR 63732-63734).
    The proposed changes to Sec.  21.32 are also intended to improve 
readability, including by removing provisions in current Sec.  21.32 
that we believe are unnecessary, and to make other clarifying changes 
that are nonsubstantive.
    These proposed rules would apply to the vocational rehabilitation 
programs administered by the Secretary and would apply to claims for 
vocational rehabilitation benefits and services filed on or after the 
effective date of the final rule.
    Finally, we propose to add Sec.  21.8015 to Subpart M of part 21 to 
clarify VA's responsibilities to claimants who apply for vocational 
rehabilitation benefits and services under that subpart. The proposed 
section would provide that Sec. Sec.  21.32 and 21.33, which are 
located in subpart A, would apply also to claims for such benefits and 
services under subpart M.

Paperwork Reduction Act of 1995

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

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 1 year. This proposed rule would have no such effect 
on State, local, and tribal governments, or on the private sector.

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 Executive 
Order classifies a ``significant regulatory action,'' requiring review 
by the Office of Management and Budget (OMB) unless OMB waives such 
review, as any regulatory action that is likely to result in a rule 
that may: (1) Have an annual effect on the economy of $100 million or 
more or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities; (2) create a serious inconsistency or otherwise interfere 
with an action taken or planned by another agency; (3) materially alter 
the budgetary impact of entitlements, grants, user fees, or loan 
programs or the rights and obligations of recipients thereof; or (4) 
raise novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order.
    The economic, interagency, budgetary, legal, and policy 
implications of this proposed rule have been examined and it has been 
determined to be a significant regulatory action under Executive Order 
12866 because it may raise novel legal or policy issues arising out of 
legal mandates, the President's priorities, or the principles set forth 
in the Executive Order.

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed regulatory 
amendment 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. This proposed amendment would not 
directly affect any small entities. Only individuals could be directly 
affected. Therefore, pursuant to 5 U.S.C. 605(b), this proposed 
amendment is exempt from the initial and final regulatory flexibility 
analysis requirements of sections 603 and 604.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs that would be affected by this proposed rule are 64.116, 
Vocational Rehabilitation for Disabled Veterans, and 64.128, Vocational 
Training and Rehabilitation for Vietnam Veterans' Children with Spina 
Bifida or Other Covered Defects.

List of Subjects in 38 CFR Part 21

    Administrative practice and procedure, Armed forces, Civil rights, 
Claims, Colleges and universities, Conflict of interests, Education, 
Employment, Grant programs-education, Grant programs-veterans, Health 
care, Loan programs-education, Loan programs-veterans, Manpower 
training programs, Reporting and recordkeeping requirements, Schools, 
Travel and transportation expenses, Veterans, Vocational education, 
Vocational rehabilitation.

    Approved: March 21, 2008.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.

    For the reasons set forth in the preamble, VA proposes to amend 38 
CFR part 21 (subparts A and M) as follows:

PART 21--VOCATIONAL REHABILITATION AND EDUCATION

Subpart A--Vocational Rehabilitation and Employment Under 38 U.S.C. 
Chapter 31

    1. The authority citation for part 21, subpart A is revised to read 
as follows:

    Authority: 38 U.S.C. 501(a), chs. 18, 31, and as noted in 
specific sections.

    2. The Subpart A heading is revised as set forth above.
    3. Revise Sec.  21.32 to read as follows:


Sec.  21.32  Notification by VA of necessary information or evidence 
when a claim is filed; time for claimant response and VA action.

    The provisions of this section apply to claims that are governed by 
this subpart or subpart M of this part.
    (a) VA has a duty to notify claimants of necessary information or 
evidence. Except when a claim cannot be substantiated because there is 
no legal basis for the claim, or undisputed facts render the claimant 
ineligible for the claimed benefit, when VA receives a complete or 
substantially complete application for vocational rehabilitation 
benefits and services provided under this subpart or subpart M of this 
part VA will:
    (1) Notify the claimant of any information and evidence that is 
necessary to substantiate the claim;
    (2) Inform the claimant which information and evidence, if any, the 
claimant is to provide to VA and which information and evidence, if 
any, VA will try to obtain for the claimant; and
    (3) Inform the claimant of the time limit, as provided in paragraph 
(c) of this section, for responding to VA's notification, and of 
actions, as provided in paragraph (d) of this section, that VA may take 
to decide the claim if the claimant does not respond to such 
notification within 30 days.
    (b) Definitions for purposes of Sec. Sec.  21.32 and 21.33. For 
purposes of this section and Sec.  21.33:
    (1) The term application does not include a notice of disagreement.
    (2) The term notification means the notice described in paragraph 
(a) of this section.
    (3) The term substantially complete application means, for an 
individual's first application for vocational

[[Page 37405]]

rehabilitation benefits and services administered by VA, an application 
containing:
    (i) The claimant's name;
    (ii) His or her relationship to the veteran, if applicable;
    (iii) Sufficient information for VA to verify the claimed service, 
if applicable; and
    (iv) The benefit claimed.
    (4) The term information means nonevidentiary facts, such as the 
claimant's Social Security number or address, or the name of the 
educational institution the claimant is attending.
    (c) Time limit. Any information and evidence described in the 
notification as information and evidence that the claimant is to 
provide must be received by VA within one year from the date of the 
notification. If VA does not receive the information and evidence from 
the claimant within that time period, VA may adjudicate the claim based 
on the information and evidence in the file.
    (d) Actions VA may take after 30 days if no response from claimant. 
If the claimant has not responded to the notification within 30 days, 
VA may decide the claim before the expiration of the one-year period, 
based on all the information and evidence in the file, including 
information and evidence it has obtained on behalf of the claimant. If 
VA does so, however, and the claimant subsequently provides the 
information and evidence specified in the notification within one year 
of the date of the notification, VA must readjudicate the claim. If 
VA's decision on a readjudication is favorable to the claimant, the 
award of vocational rehabilitation benefits and services shall take 
effect as if the prior decision by VA on the claim had not been made.
    (e) Incomplete applications. If VA receives an incomplete 
application for benefits, it will notify the claimant of the 
information necessary to complete the application and will defer 
assistance until the claimant submits this information. If the 
information necessary to complete the application is not received by VA 
within one year from the date of such notice, VA cannot pay or provide 
any benefits based on that application.
    (f) Who VA will notify. For the purpose of this section, when VA 
seeks to notify a claimant, it will provide such notice to:
    (1) The claimant;
    (2) His or her fiduciary, if any; and
    (3) His or her representative, if any.

    (Authority: 38 U.S.C. 5102, 5103, 5103A(a)(3))

    4. Immediately after Sec.  21.32 and prior to the cross-reference, 
add Sec.  21.33, to read as follows:


Sec.  21.33  VA has a duty to assist claimants in obtaining evidence.

    The provisions of this section apply to claims that are governed by 
this subpart or subpart M of this part.
    (a) VA's duty to assist begins when VA receives a complete or 
substantially complete application. (1) Except as provided in paragraph 
(d) of this section, upon receipt of a complete or substantially 
complete application for vocational rehabilitation benefits and 
services under this subpart or subpart M of this part, VA will:
    (i) Make reasonable efforts to help a claimant obtain evidence 
necessary to substantiate the claim; and
    (ii) Give the assistance described in paragraphs (b) and (c) of 
this section to an individual attempting to reopen a finally decided 
claim.
    (2) VA will not pay any fees a custodian of records may charge to 
provide the records VA requests.

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

    (b) Obtaining records not in the custody of a Federal department or 
agency. (1) VA will make reasonable efforts to obtain relevant records 
not in the custody of a Federal department or agency. These records 
include relevant records from:
    (i) State or local governments;
    (ii) Private medical care providers;
    (iii) Current or former employers; and
    (iv) Other non-Federal governmental sources.
    (2) The reasonable efforts described in paragraph (b)(1) of this 
section will generally consist of an initial request for the records 
and, if VA does not receive the records, at least one follow-up 
request. The following are exceptions to this provision concerning the 
number of requests that VA generally will make:
    (i) VA will not make a follow-up request if a response to the 
initial request indicates that the records sought do not exist or that 
a follow-up request for the records would be futile.
    (ii) If VA receives information showing that subsequent requests to 
this or another custodian could result in obtaining the records sought, 
reasonable efforts will include an initial request and, if VA does not 
receive the records, at least one follow-up request to the new source 
or an additional request to the original source.
    (3) The claimant must cooperate fully with VA's reasonable efforts 
to obtain relevant records from non-Federal agency or department 
custodians. The claimant must provide enough information to identify 
and locate the existing records, including:
    (i) The person, company, agency, or other custodian holding the 
records;
    (ii) The approximate time frame covered by the records; and
    (iii) In the case of medical treatment records, the condition for 
which treatment was provided.
    (4) If necessary, the claimant must authorize the release of 
existing records in a form acceptable to the person, company, agency, 
or other custodian holding the records.

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

    (c) Obtaining records in the custody of a Federal department or 
agency. (1) Subject to paragraphs (c)(2) through (c)(4) of this 
section, VA will make as many requests as are necessary to obtain 
relevant records from a Federal department or agency. These records 
include but are not limited to:
    (i) Military records;
    (ii) Medical and other records from VA medical facilities;
    (iii) Records from non-VA facilities providing examination or 
treatment at VA expense; and
    (iv) Records from other Federal agencies.
    (2) VA will cease its efforts to obtain records from a Federal 
department or agency only if VA concludes that the records sought do 
not exist or that further efforts to obtain those records would be 
futile. Cases in which VA may conclude that no further efforts are 
required include cases in which the Federal department or agency 
advises VA that the requested records do not exist or that the 
custodian of such records does not have them.
    (3) The claimant must cooperate fully with VA's reasonable efforts 
to obtain relevant records from Federal department or agency 
custodians. At VA's request, the claimant must provide enough 
information to identify and locate the existing records, including:
    (i) The custodian or agency holding the records;
    (ii) The approximate time frame covered by the records; and
    (iii) In the case of medical treatment records, the condition for 
which treatment was provided.
    (4) If necessary, the claimant must authorize the release of 
existing records in a form acceptable to the custodian or agency 
holding the records.

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

    (d) Circumstances where VA will refrain from or discontinue 
providing assistance. VA will refrain from providing assistance in 
obtaining evidence for a claim if the substantially complete or 
complete application for benefits indicates that there is no reasonable 
possibility that any assistance VA would provide to the

[[Page 37406]]

claimant would substantiate the claim. VA will discontinue providing 
assistance in obtaining evidence for a claim if the evidence obtained 
indicates that there is no reasonable possibility that further 
assistance would substantiate the claim. Circumstances in which VA will 
refrain from or discontinue providing assistance in obtaining evidence 
include but are not limited to:
    (1) The claimant's ineligibility for the benefit sought because of 
lack of qualifying service, lack of veteran status, or other lack of 
legal eligibility;
    (2) Claims that are inherently not credible or clearly lack merit;
    (3) An application requesting a benefit to which the claimant is 
not entitled as a matter of law; and
    (4) The claimant's lack of cooperation in providing or requesting 
information or evidence necessary to substantiate the claim.

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

    (e) Duty to notify claimant of inability to obtain records. (1) VA 
will notify the claimant either orally or in writing when VA:
    (i) Has made reasonable efforts to obtain relevant non-Federal 
records, but is unable to obtain them; or
    (ii) After continued efforts to obtain Federal records, concludes 
that it is reasonably certain they do not exist or that further efforts 
to obtain them would be futile.
    (2) For non-Federal records requests, VA may provide the notice to 
the claimant at the same time it makes its final attempt to obtain the 
relevant records.
    (3) VA will make a written record of any oral notice conveyed under 
this paragraph to the claimant.
    (4) The notice to the claimant must contain the following 
information:
    (i) The identity of the records VA was unable to obtain;
    (ii) An explanation of the efforts VA made to obtain the records;
    (iii) The fact described in paragraph (e)(1)(i) or (e)(1)(ii) of 
this section;
    (iv) A description of any further action VA will take regarding the 
claim, including, but not limited to, notice that VA will decide the 
claim based on the evidence of record unless the claimant submits the 
records VA was unable to obtain; and
    (v) A notice that the claimant is ultimately responsible for 
obtaining the evidence.
    (5) If VA becomes aware of the existence of relevant records before 
deciding the claim, VA will notify the claimant of the existence of 
such records and ask that the claimant provide a release for the 
records. If the claimant does not provide any necessary release of the 
relevant records that VA is unable to obtain, VA will ask that the 
claimant obtain the records and provide them to VA.
    (6) For the purpose of this section, if VA must notify the 
claimant, VA will provide notice to:
    (i) The claimant;
    (ii) His or her fiduciary, if any; and
    (iii) His or her representative, if any.

(Authority: 38 U.S.C. 5102, 5103(a), 5103A)

Subpart M--Vocational Training and Rehabilitation for Certain 
Children of Vietnam Veterans--Spina Bifida and Covered Birth 
Defects

    5. The authority citation for part 21, subpart M continues to read 
as follows:

    Authority: 38 U.S.C. 101, 501, 512, 1151 note, ch. 18, 5112, and 
as noted in specific sections.

    6. Add Sec.  21.8015 to read as follows:


Sec.  21.8015  Notification by VA of necessary information or evidence 
when a claim is filed; time for claimant response and VA action; and 
VA's duty to assist claimants in obtaining evidence.

    The provisions of Sec. Sec.  21.32 and 21.33 of subpart A of this 
part also apply to claims for benefits and services under this subpart.

 [FR Doc. E8-14823 Filed 6-30-08; 8:45 am]
BILLING CODE 8320-01-P