Vocational Rehabilitation and Employment Program-Duty To Assist, 31854-31857 [E9-15860]
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Federal Register / Vol. 74, No. 127 / Monday, July 6, 2009 / Rules and Regulations
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Dated: June 29, 2009.
Matthew S. Borman,
Acting Assistant Secretary for Export
Administration.
[FR Doc. E9–15827 Filed 7–2–09; 8:45 am]
BILLING CODE 3510–33–P
DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Part 21
RIN 2900–AM91
Vocational Rehabilitation and
Employment Program—Duty To Assist
Department of Veterans Affairs.
Final rule.
AGENCY:
ACTION:
SUMMARY: This document amends 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
was expanded by the Veterans Claims
Assistance Act of 2000. This rulemaking
incorporates those provisions in VA’s
regulations. 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 is making
changes to improve readability and
other clarifying changes that are
nonsubstantive.
Effective Date: This final rule is
effective August 5, 2009.
Applicability Date: For information
concerning the date of applicability, see
the Supplementary Information section
of this document.
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 a
document published in the Federal
Register on July 1, 2008 (73 FR 37402),
we proposed to amend regulations
governing VA’s responsibility to provide
notification regarding information or
evidence needed for an individual to
substantiate a claim for vocational
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DATES:
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rehabilitation benefits and services, and
regarding applicable time periods. We
provided a 60-day comment period that
ended on September 2, 2008.
We received comments from one
organization and one individual. With
respect to the individual commenter,
the submission stated ‘‘see the attached
for proposed changes to this
regulation,’’ yet we did not receive an
attachment or the commenter’s contact
information. Consequently, we make no
changes based on the commenter’s
submission.
The organization commented with
respect to the 30-day period in proposed
38 CFR 21.32(a)(3) and (d) after which
VA may decide a claim if the claimant
has not responded to the notification
provided under proposed § 21.32(a)
concerning information and evidence
that is necessary to substantiate the
claim. The commenter expressed the
view that 30 days from the date of
notice is not sufficient time for a
claimant to respond. It asserted that
after taking into account time after the
date of the notice until receipt by the
claimant, and time for mailing back to
VA, the 30-day period ‘‘will effectively
give most disabled veterans only about
15 days from receipt of your letter in
which to digest its contents, obtain
assistance and/or needed
documentation, and prepare and mail a
response to you.’’ We do not agree with
this comment and make no change in
the 30-day period based on the
comment.
We note that the commenter provided
no evidence supporting its assertions as
to the time that is involved prior to
receipt of VA’s notice and that is needed
to allow for receipt by VA of the
claimant’s response. Even considering
that there may be significantly less than
the full 30 days to prepare a response,
a claimant need not provide all the
information and evidence within the 30day period. A claimant may delay VA
action beyond the 30 days by simply
responding with a request that VA wait
beyond the 30-day period. We believe
that the 30-day time period referred to
in proposed § 21.32(a)(3) and (d) 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.
Further, whether or not the claimant
responds within 30 days, proposed
§ 21.32 provided a one-year time limit
for receipt by VA of the information of
evidence referred to in the notice, and
for readjudication if VA had decided the
claim prior to the one-year time period.
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In addition, we note that the 30-day
time period is supported by
administrative concerns, and is
intended to assure that a lack of
response does not unnecessarily delay a
VA decision on the claim.
With respect to proposed § 21.33(d),
the commenter stated that it would be
‘‘unreasonable to expect that VA will be
able to determine from a cursory review
of a ‘substantially complete application’
that there is no reasonable possibility
that any notice and/or assistance the VA
would provide to the claimant would
substantiate the claim.’’ However, under
proposed § 21.33(d), more than a
cursory review would be involved
before deciding to discontinue
providing assistance. VA would be
required to evaluate the application for
benefits to determine whether any of the
four circumstances under which VA
will discontinue assistance exists.
Further, the provision is consistent with
principles relied upon throughout 38
CFR part 21. (See 38 CFR 21.1032(d)
concerning VA’s duty to assist claimants
for VA education benefits.) We do not
believe any change is warranted based
on this comment.
VA appreciates the submissions in
response to the proposed rule. For the
reasons stated above and those in the
notice of proposed rulemaking, the
proposed rule is adopted as a final rule
without change.
The preamble to the proposed rule
provided notice of our intent that its
provisions be applicable to claims filed
on or after the effective date of the final
rule. In accordance with that statement
of our intent, VA will apply the
provisions of this final rule to claims for
vocational rehabilitation benefits and
services filed on or after August 5, 2009.
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
year. This final 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
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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 final 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 final rule 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. This final rule
will not directly affect any small
entities. Only individuals could be
directly affected. Therefore, pursuant to
5 U.S.C. 605(b), this final rule is exempt
from the initial and final regulatory
flexibility analysis requirements of
sections 603 and 604.
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Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic
Assistance numbers and titles for the
programs that will be affected by this
final 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.
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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: June 29, 2009.
John R. Gingrich,
Chief of Staff, Department of Veterans Affairs.
For the reasons stated in the preamble,
VA amends 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
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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
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
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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
(Authority: 38 U.S.C. 5102, 5103,
claimant must provide enough
5103A(a)(3))
information to identify and locate the
■ 4. Immediately after § 21.32 and prior
existing records, including:
to the cross-reference, add § 21.33, to
(i) The person, company, agency, or
read as follows:
other custodian holding the records;
§ 21.33 VA has a duty to assist claimants
(ii) The approximate time frame
in obtaining evidence.
covered by the records; and
(iii) In the case of medical treatment
The provisions of this section apply to
claims that are governed by this subpart records, the condition for which
treatment was provided.
or subpart M of this part.
(4) If necessary, the claimant must
(a) VA’s duty to assist begins when VA
authorize the release of existing records
receives a complete or substantially
in a form acceptable to the person,
complete application. (1) Except as
company, agency, or other custodian
provided in paragraph (d) of this
holding the records.
section, upon receipt of a complete or
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
(iv) Records from other Federal
(b) Obtaining records not in the
agencies.
custody of a Federal department or
(2) VA will cease its efforts to obtain
agency. (1) VA will make reasonable
records from a Federal department or
efforts to obtain relevant records not in
agency only if VA concludes that the
the custody of a Federal department or
records sought do not exist or that
agency. These records include relevant
further efforts to obtain those records
records from:
would be futile. Cases in which VA may
(i) State or local governments;
conclude that no further efforts are
(ii) Private medical care providers;
(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;
(ii) The approximate time frame
do not exist or that a follow-up request
covered by the records; and
for the records would be futile.
(iii) In the case of medical treatment
(ii) If VA receives information
showing that subsequent requests to this records, the condition for which
treatment was provided.
or another custodian could result in
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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.
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(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
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;
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(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 § 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. E9–15860 Filed 7–2–09; 8:45 am]
BILLING CODE 8320–01–P
DEPARTMENT OF HOMELAND
SECURITY
Federal Emergency Management
Agency
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44 CFR Part 64
[Docket ID FEMA–2008–0020; Internal
Agency Docket No. FEMA–8081]
Suspension of Community Eligibility
AGENCY: Federal Emergency
Management Agency, DHS.
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ACTION:
Final rule.
SUMMARY: This rule identifies
communities, where the sale of flood
insurance has been authorized under
the National Flood Insurance Program
(NFIP), that are scheduled for
suspension on the effective dates listed
within this rule because of
noncompliance with the floodplain
management requirements of the
program. If the Federal Emergency
Management Agency (FEMA) receives
documentation that the community has
adopted the required floodplain
management measures prior to the
effective suspension date given in this
rule, the suspension will not occur and
a notice of this will be provided by
publication in the Federal Register on a
subsequent date.
DATES: Effective Dates: The effective
date of each community’s scheduled
suspension is the third date (‘‘Susp.’’)
listed in the third column of the
following tables.
FOR FURTHER INFORMATION CONTACT: If
you want to determine whether a
particular community was suspended
on the suspension date or for further
information, contact David Stearrett,
Mitigation Directorate, Federal
Emergency Management Agency, 500 C
Street, SW., Washington, DC 20472,
(202) 646–2953.
SUPPLEMENTARY INFORMATION: The NFIP
enables property owners to purchase
flood insurance which is generally not
otherwise available. In return,
communities agree to adopt and
administer local floodplain management
aimed at protecting lives and new
construction from future flooding.
Section 1315 of the National Flood
Insurance Act of 1968, as amended, 42
U.S.C. 4022, prohibits flood insurance
coverage as authorized under the NFIP,
42 U.S.C. 4001 et seq., unless an
appropriate public body adopts
adequate floodplain management
measures with effective enforcement
measures. The communities listed in
this document no longer meet that
statutory requirement for compliance
with program regulations, 44 CFR part
59. Accordingly, the communities will
be suspended on the effective date in
the third column. As of that date, flood
insurance will no longer be available in
the community. However, some of these
communities may adopt and submit the
required documentation of legally
enforceable floodplain management
measures after this rule is published but
prior to the actual suspension date.
These communities will not be
suspended and will continue their
eligibility for the sale of insurance. A
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31857
notice withdrawing the suspension of
the communities will be published in
the Federal Register.
In addition, FEMA has identified the
Special Flood Hazard Areas (SFHAs) in
these communities by publishing a
Flood Insurance Rate Map (FIRM). The
date of the FIRM, if one has been
published, is indicated in the fourth
column of the table. No direct Federal
financial assistance (except assistance
pursuant to the Robert T. Stafford
Disaster Relief and Emergency
Assistance Act not in connection with a
flood) may legally be provided for
construction or acquisition of buildings
in identified SFHAs for communities
not participating in the NFIP and
identified for more than a year on
FEMA’s initial flood insurance map of
the community as having flood-prone
areas (section 202(a) of the Flood
Disaster Protection Act of 1973, 42
U.S.C. 4106(a), as amended). This
prohibition against certain types of
Federal assistance becomes effective for
the communities listed on the date
shown in the last column. The
Administrator finds that notice and
public comment under 5 U.S.C. 553(b)
are impracticable and unnecessary
because communities listed in this final
rule have been adequately notified.
Each community receives 6-month,
90-day, and 30-day notification letters
addressed to the Chief Executive Officer
stating that the community will be
suspended unless the required
floodplain management measures are
met prior to the effective suspension
date. Since these notifications were
made, this final rule may take effect
within less than 30 days.
National Environmental Policy Act.
This rule is categorically excluded from
the requirements of 44 CFR part 10,
Environmental Considerations. No
environmental impact assessment has
been prepared.
Regulatory Flexibility Act. The
Administrator has determined that this
rule is exempt from the requirements of
the Regulatory Flexibility Act because
the National Flood Insurance Act of
1968, as amended, 42 U.S.C. 4022,
prohibits flood insurance coverage
unless an appropriate public body
adopts adequate floodplain management
measures with effective enforcement
measures. The communities listed no
longer comply with the statutory
requirements, and after the effective
date, flood insurance will no longer be
available in the communities unless
remedial action takes place.
Regulatory Classification. This final
rule is not a significant regulatory action
under the criteria of section 3(f) of
Executive Order 12866 of September 30,
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]]>Agencies
[Federal Register Volume 74, Number 127 (Monday, July 6, 2009)]
[Rules and Regulations]
[Pages 31854-31857]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-15860]
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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: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document amends 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 was expanded by the Veterans
Claims Assistance Act of 2000. This rulemaking incorporates those
provisions in VA's regulations. 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 is making changes to improve
readability and other clarifying changes that are nonsubstantive.
DATES: Effective Date: This final rule is effective August 5, 2009.
Applicability Date: For information concerning the date of
applicability, see the Supplementary Information section of this
document.
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 a document published in the Federal
Register on July 1, 2008 (73 FR 37402), we proposed to amend
regulations governing 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. We provided a 60-day
comment period that ended on September 2, 2008.
We received comments from one organization and one individual. With
respect to the individual commenter, the submission stated ``see the
attached for proposed changes to this regulation,'' yet we did not
receive an attachment or the commenter's contact information.
Consequently, we make no changes based on the commenter's submission.
The organization commented with respect to the 30-day period in
proposed 38 CFR 21.32(a)(3) and (d) after which VA may decide a claim
if the claimant has not responded to the notification provided under
proposed Sec. 21.32(a) concerning information and evidence that is
necessary to substantiate the claim. The commenter expressed the view
that 30 days from the date of notice is not sufficient time for a
claimant to respond. It asserted that after taking into account time
after the date of the notice until receipt by the claimant, and time
for mailing back to VA, the 30-day period ``will effectively give most
disabled veterans only about 15 days from receipt of your letter in
which to digest its contents, obtain assistance and/or needed
documentation, and prepare and mail a response to you.'' We do not
agree with this comment and make no change in the 30-day period based
on the comment.
We note that the commenter provided no evidence supporting its
assertions as to the time that is involved prior to receipt of VA's
notice and that is needed to allow for receipt by VA of the claimant's
response. Even considering that there may be significantly less than
the full 30 days to prepare a response, a claimant need not provide all
the information and evidence within the 30-day period. A claimant may
delay VA action beyond the 30 days by simply responding with a request
that VA wait beyond the 30-day period. We believe that the 30-day time
period referred to in proposed Sec. 21.32(a)(3) and (d) 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. Further, whether
or not the claimant responds within 30 days, proposed Sec. 21.32
provided a one-year time limit for receipt by VA of the information of
evidence referred to in the notice, and for readjudication if VA had
decided the claim prior to the one-year time period. In addition, we
note that the 30-day time period is supported by administrative
concerns, and is intended to assure that a lack of response does not
unnecessarily delay a VA decision on the claim.
With respect to proposed Sec. 21.33(d), the commenter stated that
it would be ``unreasonable to expect that VA will be able to determine
from a cursory review of a `substantially complete application' that
there is no reasonable possibility that any notice and/or assistance
the VA would provide to the claimant would substantiate the claim.''
However, under proposed Sec. 21.33(d), more than a cursory review
would be involved before deciding to discontinue providing assistance.
VA would be required to evaluate the application for benefits to
determine whether any of the four circumstances under which VA will
discontinue assistance exists. Further, the provision is consistent
with principles relied upon throughout 38 CFR part 21. (See 38 CFR
21.1032(d) concerning VA's duty to assist claimants for VA education
benefits.) We do not believe any change is warranted based on this
comment.
VA appreciates the submissions in response to the proposed rule.
For the reasons stated above and those in the notice of proposed
rulemaking, the proposed rule is adopted as a final rule without
change.
The preamble to the proposed rule provided notice of our intent
that its provisions be applicable to claims filed on or after the
effective date of the final rule. In accordance with that statement of
our intent, VA will apply the provisions of this final rule to claims
for vocational rehabilitation benefits and services filed on or after
August 5, 2009.
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 year. This final 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
[[Page 31855]]
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 final 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 final rule 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. This final rule will not directly affect any small entities. Only
individuals could be directly affected. Therefore, pursuant to 5 U.S.C.
605(b), this final rule 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 will be affected by this final 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: June 29, 2009.
John R. Gingrich,
Chief of Staff, Department of Veterans Affairs.
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For the reasons stated in the preamble, VA amends 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
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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.
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2. The subpart A heading is revised as set forth above.
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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 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
[[Page 31856]]
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))
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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 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;
[[Page 31857]]
(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
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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.
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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. E9-15860 Filed 7-2-09; 8:45 am]
BILLING CODE 8320-01-P
