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Monday,

April 14, 2008

Part III

Department of
Veterans Affairs
38 CFR Part 5
VA Benefit Claims; Proposed Rule
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20136 Federal Register / Vol. 73, No. 72 / Monday, April 14, 2008 / Proposed Rules

DEPARTMENT OF VETERANS a recommendation made in the October quickly than the organization provided
AFFAIRS 2001 ‘‘VA Claims Processing Task in current part 3.
Force: Report to the Secretary of The first major subdivision would be
38 CFR Part 5 Veterans Affairs.’’ The Task Force ‘‘Subpart A—General Provisions.’’ It
recommended that the compensation would include information regarding
RIN 2900–AM16
and pension regulations be rewritten the scope of the regulations in new part
VA Benefit Claims and reorganized in order to improve 5, general definitions, and general
VA’s claims adjudication process. policy provisions for this part. This
AGENCY: Department of Veterans Affairs. Therefore, the Project began its efforts subpart was published as proposed on
ACTION: Proposed rule. by reviewing, reorganizing, and March 31, 2006. See 71 FR 16464.
redrafting the content of the regulations ‘‘Subpart B—Service Requirements for
SUMMARY: The Department of Veterans Veterans’’ would include information
in 38 CFR part 3 governing the
Affairs (VA) proposes to reorganize and compensation and pension program of regarding a veteran’s military service,
rewrite in plain language its regulations the Veterans Benefits Administration. including the minimum service
involving VA benefits claims. These These regulations are among the most requirement, types of service, periods of
revisions are proposed as part of VA’s difficult VA regulations for readers to war, and service evidence requirements.
rewrite and reorganization of all of its understand and apply. This subpart was published as proposed
compensation and pension rules in a on January 30, 2004. See 69 FR 4820.
logical, claimant-focused, and user- Once rewritten, the proposed ‘‘Subpart C—Adjudicative Process,
friendly format. The intended effect of regulations will be published in several General’’ would inform readers about
the proposed revisions is to assist portions for public review and claims and benefit application filing
claimants and VA personnel in locating comment. This is one such portion. It procedures, VA’s duties, rights and
and understanding these regulations includes proposed rules regarding responsibilities of claimants and
involving VA benefits claims. claims. After review and consideration beneficiaries, general evidence
DATES: Comments must be received by
of public comments, final versions of requirements, and general effective
VA on or before June 13, 2008. these proposed regulations will dates for new awards, as well as
ultimately be published in a new part 5 revision of decisions and protection of
ADDRESSES: Written comments may be
in 38 CFR. VA ratings. This subpart will be
submitted through
www.Regulations.gov; by mail or hand- Outline published as three separate Notices of
delivery to Director, Regulations Overview of New Part 5 Organization
Proposed Rulemaking (NPRMs) due to
Management (00REG), Department of Overview of This Notice of Proposed its size. The first, concerning the duties
Veterans Affairs, 810 Vermont Ave., Rulemaking of VA and the rights and responsibilities
NW., Room 1068, Washington, DC Table Comparing Proposed Part 5 Rules With of claimants and beneficiaries, was
20420; or by fax to (202) 273–9026. Current Part 3 Rules published as proposed on May 10, 2005.
(This is not a toll-free number.)
Content of Proposed Regulations See 70 FR 24680. The second NPRM,
Comments should indicate that they are VA Benefit Claims concerning general evidence
submitted in response to ‘‘RIN 2900– requirements, effective dates, revision of
5.50 Applications Furnished by VA
decisions, and protection of existing
AM16–VA Benefit Claims.’’ Copies of 5.51 Filing a Claim for Disability Benefits
ratings, was published as proposed on
comments received will be available for 5.52 Filing a Claim for Death Benefits
5.53 Claims for Benefits Under 38 U.S.C. May 22, 2007. See 72 FR 28770. This
public inspection in the Office of
1151 for Disability or Death Due to VA document is the third of the three
Regulation Policy and Management,
Treatment or Vocational Rehabilitation NPRMs that involve regulations
Room 1063B, between the hours of
5.54 Informal Claims concerning VA benefit claims.
8 a.m. and 4:30 p.m., Monday through 5.55 Claims Based on New and Material ‘‘Subpart D—Dependents and
Friday (except holidays). Please call Evidence Survivors’’ would inform readers how
(202) 461–4902 for an appointment. 5.56 Report of Examination or VA determines whether an individual is
(This is not a toll-free number.) In Hospitalization as Claim for Increase or To a dependent or a survivor for purposes
addition, during the comment period, Reopen of determining eligibility for VA
comments may be viewed online 5.57 Status of Claims
benefits. It would also provide the
through the Federal Docket Management Endnote Regarding Amendatory Language
Paperwork Reduction Act of 1995 evidence requirements for these
System (FDMS) at www.Regulations.gov. determinations. This subpart was
Regulatory Flexibility Act
FOR FURTHER INFORMATION CONTACT: Executive Order 12866 published as proposed on September 20,
William F. Russo, Director of Unfunded Mandates 2006. See 71 FR 55052.
Regulations Management (00REG), Catalog of Federal Domestic Assistance ‘‘Subpart E—Claims for Service
Department of Veterans Affairs, 810 Numbers and Titles Connection and Disability
Vermont Avenue, NW., Washington, DC List of Subjects in 38 CFR Part 5 Compensation’’ would define service-
20420, (202) 461–4902. (This is not a connected disability compensation and
Overview of New Part 5 Organization
toll-free number.) service connection, including direct and
SUPPLEMENTARY INFORMATION: The We plan to organize the new part 5 secondary service connection. This
Secretary of Veterans Affairs has regulations so that most provisions subpart would inform readers how VA
established an Office of Regulation governing a specific benefit are located determines service connection and
Policy and Management to provide in the same subpart, with general entitlement to disability compensation.
centralized management and provisions pertaining to all The subpart would also contain those
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coordination of VA’s rulemaking compensation and pension benefits also provisions governing presumptions
process. One of the major functions of grouped together. This organization will related to service connection, rating
this office is to oversee a Regulation allow claimants, beneficiaries, and their principles, and effective dates, as well
Rewrite Project (the Project) to improve representatives, as well as VA as several special ratings. This subpart
the clarity and consistency of existing adjudicators, to find information will be published as three separate
VA regulations. The Project responds to relating to a specific benefit more NPRMs due to its size. The first,

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concerning presumptions related to ‘‘Subpart J—Burial Benefits’’ would prior rulemaking issued as a part of the
service connection, was published as pertain to burial allowances. Project, if the matter being commented
proposed on July 27, 2004. See 69 FR ‘‘Subpart K—Matters Affecting the on relates to both rulemakings.
44614. Receipt of Benefits’’ would contain
provisions regarding bars to benefits, Overview of This Notice of Proposed
‘‘Subpart F—Nonservice-Connected Rulemaking
Disability Pensions and Death forfeiture of benefits, and renouncement
Pensions’’ would include information of benefits. This subpart was published This NPRM pertains to VA benefits
regarding the three types of nonservice- as proposed on May 31, 2006. See 71 FR claims and related procedures. These
connected pension: Old-Law Pension, 31056. regulations would be contained in
Section 306 Pension, and Improved ‘‘Subpart L—Payments and proposed subpart C of new 38 CFR part
Pension. This subpart would also Adjustments to Payments’’ would 5. Although these regulations have been
include those provisions that state how include general rate-setting rules, substantially restructured and rewritten
to establish entitlement to Improved several adjustment and resumption for greater clarity and ease of use, most
Pension, and the effective dates regulations, and election-of-benefit of the basic concepts contained in these
governing each pension. This subpart rules. Because of its size, proposed proposed regulations are the same as in
was published as two separate NPRMs regulations in Subpart L will be their existing counterparts in 38 CFR
due to its size. The portion concerning published in two separate NPRMs. The part 3. However, a few substantive
Old-Law Pension, Section 306 Pension, first, concerning payments to differences are proposed.
and elections of Improved Pension was beneficiaries who are eligible for more
Table Comparing Proposed Part 5 Rules
published as proposed on December 27, than one benefit, was published as
with Current Part 3 Rules
2004. See 69 FR 77578. The portion proposed on October 2, 2007. See 72 FR
56136. The following table shows the
concerning eligibility and entitlement relationship between the proposed
The final subpart, ‘‘Subpart M—
requirements as well as effective dates regulations contained in this NPRM and
Apportionments to Dependents and
for Improved Pension was published as the current regulations in part 3:
Payments to Fiduciaries and
proposed on September 26, 2007. See 72
Incarcerated Beneficiaries,’’ would
FR 54776. Proposed part 5 Based in whole or in part
include regulations governing
‘‘Subpart G—Dependency and apportionments, benefits for section or para- on 38 CFR part 3 section
Indemnity Compensation, Death graph or paragraph
incarcerated beneficiaries, and
Compensation, Accrued Benefits, and guardianship. 5.1—Application New.
Special Rules Applicable Upon Death of Some of the regulations in this NPRM 5.1—Claim ....... 3.1(p).
a Beneficiary’’ would contain cross-reference other compensation and 5.50 .................. 3.150.
regulations governing claims for pension regulations. If those regulations 5.51 .................. 3.151(a).
dependency and indemnity have been published in this or earlier 5.52 .................. 3.152.
compensation (DIC); death NPRMs for the Project, we cite the 5.53 .................. 3.154.
compensation; accrued benefits; benefits 5.54 .................. 3.155.
proposed part 5 section. We also 5.55 .................. 3.156(a), 3.400 intro,
awarded, but unpaid at death; and include, in the relevant portion of the (q)(2), (r).
various special rules that apply to the SUPPLEMENTARY INFORMATION, the 5.56 .................. 3.157.
disposition of VA benefits, or proceeds Federal Register page where a proposed 5.57(a) .............. New.
of VA benefits, when a beneficiary dies. part 5 section published in an earlier 5.57(b)–(g) ....... 3.160.
This subpart would also include related NPRM may be found. However, where
definitions, effective date rules, and a regulation proposed in this NPRM Readers who use this table to compare
rate-of-payment rules. This subpart was would cross-reference a proposed part 5 the proposed provisions with the
published as two separate NPRMs due regulation that has not yet been existing regulatory provisions, and who
to its size. The portion concerning published, we cite to the current part 3 observe a substantive difference
accrued benefits, death compensation, regulation that deals with the same between them, should consult the text
special rules applicable upon the death subject matter. The current part 3 that appears later in this document for
of a beneficiary, and several effective section we cite may differ from its an explanation of significant changes in
date rules, was published as proposed eventual part 5 counterpart in some each regulation. Not every paragraph of
on October 1, 2004. See 69 FR 59072. respects, but we believe this method every current part 3 section regarding
The portion concerning DIC benefits will assist readers in understanding the subject matter of this rulemaking is
and general provisions relating to proof these proposed regulations where no accounted for in the table. In some
of death and service-connected cause of part 5 counterpart has yet been instances, other portions of the part 3
death was published as proposed on published. If there is no part 3 sections that are addressed in these
October 21, 2005. See 70 FR 61326. counterpart to a proposed part 5 proposed regulations will appear in
‘‘Subpart H—Special and Ancillary regulation that has not yet been subparts of part 5 that are being
Benefits for Veterans, Dependents, and published, we have inserted published separately for public
Survivors’’ would pertain to special and ‘‘[regulation that will be published in a comment. For example, a reader might
ancillary benefits available, including future Notice of Proposed Rulemaking]’’ find a reference to paragraph (a) of a
benefits for children with various birth where the part 5 regulation citation part 3 section in the table, but no
defects. This subpart was published as would be placed. reference to paragraph (b) of that section
proposed on March 9, 2007. See 72 FR Because of its large size, proposed because paragraph (b) will be addressed
10860. part 5 will be published in a number of in a separate NPRM. The table also does
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‘‘Subpart I—Benefits for Certain NPRMs, such as this one. VA will not not include provisions from part 3
Filipino Veterans and Survivors’’ would adopt any portion of part 5 as final until regulations that will not be repeated in
pertain to the various benefits available all of the NPRMs have been published part 5. Such provisions are discussed
to Filipino veterans and their survivors. for public comment. specifically under the appropriate part 5
This subpart was published as proposed In connection with this rulemaking, heading in this preamble. Readers are
on June 30, 2006. See 71 FR 37790. VA will accept comments relating to a invited to comment on the proposed

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part 5 provisions and also on our proposed definition of ‘‘application,’’ an Special Rules Applicable Upon Death of
proposals to omit those part 3 application is a form. To refer to an a Beneficiary]).
provisions from part 5. application form would be redundant of Paragraph (b) of proposed § 5.52 is
the definition of application. Section based on paragraph (b) of current
Content of Proposed Regulations
3.150 requires VA to provide the § 3.152 and is slightly rewritten and
General Provisions appropriate application ‘‘upon request reorganized so that it is more readable.
made in person or in writing by any It addresses when VA will treat a claim
Section 5.1 General Definitions person applying for benefits * * *.’’ We for a certain death benefit as a claim for
We propose to further amend propose to use the language of the another death benefit as well. For
proposed § 5.1 as published in 71 FR statute in requiring that VA furnish the example, VA will treat a claim for death
16464, 16473 (Mar. 31, 2006) [RIN appropriate application upon request by compensation as a claim for death
2900–AL87 General Provisions], to add any person ‘‘claiming or applying for, or pension as well.
definitions of ‘‘application’’ and expressing an intent to claim or apply Regarding accrued benefits, current
‘‘claim’’ to the general definitions in for’’ a benefit VA administers. 38 U.S.C. § 3.152(b) includes provisions for
proposed § 5.1. Current § 3.1(p) and 5102(a). This is consistent with the law treating certain claims for death benefits
other part 3 regulations use the terms and proposed regulation that provides as claims for accrued benefits as well.
‘‘claim’’ and ‘‘application’’ for informal claims. Id.; § 5.54 of this These provisions addressing claims for
interchangeably, which we believe NPRM. The change is clarifying, not accrued benefits are not included in
might confuse the user about the substantive. proposed § 5.52(b) because a similar
intended difference between a claim In paragraph (b), we have inserted the provision already appears in proposed
and an application. word ‘‘death’’ before the words § 5.552(c), ‘‘Claims for accrued benefits
We propose to define the term ‘‘compensation’’ and ‘‘pension’’ in the or benefits awarded, but unpaid at
‘‘application’’ in part 5 as follows: first sentence for clarification. The term death,’’ which was published as
‘‘Application means a specific form ‘‘pension’’ in this context means ‘‘death proposed on October 1, 2004. (See 69 FR
required by the Secretary that a claimant pension.’’ The term ‘‘compensation’’ in 59072, 59086 [RIN 2900–AL71 Accrued
must file to apply for a benefit.’’ We this context means ‘‘death Benefits, Death Compensation, and
propose to use the term ‘‘application’’ compensation.’’ Special Rules Applicable Upon Death of
only when referring to a specific form Paragraph (c) of proposed § 5.50,
a Beneficiary]). Proposed § 5.552(c)
that a claimant must file to apply for a which is based on 38 CFR 3.150(c), is
provides that any claim filed with VA
benefit VA administers. By statute, a written to be consistent with proposed
for death pension, death compensation,
claim must be ‘‘in the form prescribed § 5.53, which is based on 38 CFR 3.154.
or dependency and indemnity
by the Secretary.’’ 38 U.S.C. 5101(a). The list of circumstances to which 38
compensation will also be accepted as a
Specifying that an application is ‘‘a form U.S.C. 1151 currently applies is
claim for accrued benefits and, if
required,’’ rather than ‘‘prescribed,’’ accurately stated in § 3.154, while the
applicable, for benefits awarded, but
should help distinguish an application list in § 3.150(c) is outdated. We have
unpaid at death. Id. Thus, it is not
from a claim. Stating the definition of written proposed § 5.50(c) to reflect
necessary to include similar provisions
‘‘application’’ in § 5.1 would place it accurately the scope of current 38 U.S.C.
in proposed § 5.52.
among other definitions applied 1151.
Paragraph (c) of proposed § 5.52 is
generally to adjudication of entitlement Section 5.51 Filing a Claim for based on paragraph (c) of current § 3.152
to VA benefits. Disability Benefits and is rewritten for improved
The term ‘‘claim’’ in part 5 would readability. Appropriate subheadings
have the same meaning it currently has Proposed § 5.51 is based on current
§ 3.151(a). (Paragraph (b) of current have also been added. The last sentence
in part 3; no substantive change is of current § 3.152(c)(1) states that
intended. We propose to define ‘‘claim’’ § 3.151 has been included in § 5.383,
which was published as proposed on ‘‘[w]here the award to the surviving
as follows: ‘‘Claim means a formal or spouse is terminated by reason of her or
informal communication in writing September 26, 2007. See 72 FR 54776,
54793–94 [RIN 2900–AM04 Improved his death, a claim for the child will be
requesting a determination of considered a claim for any accrued
entitlement, or evidencing a belief in Pension].) The content of paragraph (a)
of § 3.151 is rewritten in plain language, benefits which may be payable.’’ For the
entitlement, to a VA benefit.’’ Stating reasons stated in the preceding
the definition of ‘‘claim’’ in § 5.1 would and is split into two paragraphs, with
appropriate headings, for improved paragraph, we propose not to repeat that
place it among other definitions rule in § 5.52 because it would be
generally applicable to adjudication of readability.
redundant of the rule in proposed
entitlement to VA benefits. Section 5.52 Filing a Claim for Death § 5.552(c).
VA Benefit Claims Benefits Current § 3.152(c)(1) cites 38 U.S.C.
Proposed § 5.52 is based on current 5110(e). This citation is as authority for
Section 5.50 Applications Furnished § 3.152. In proposed § 5.52(a), we have the regulation, not as a cross-reference.
by VA changed the reference to § 3.153 to In proposed § 5.52(c)(1) and (c)(2), we
Proposed § 5.50 is based on current proposed § 5.131(a) (published as have moved this citation to the
§ 3.150. It addresses situations where proposed on May 22, 2007, see 72 FR authority citation following § 5.52.
VA will send the appropriate 28770, 28785 [RIN 2900–AM01 General Current § 3.152(c)(1) provides that a
application for VA benefits to a Evidence Requirements, Effective Dates, child must file a claim for dependency
potential recipient of VA benefits. It has Revision of Decisions, and Protection of and indemnity compensation under
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been slightly rewritten. The language is Existing Ratings]), and we have changed certain circumstances. It has long been
more active, and we have added the reference to § 3.400(c) to proposed VA’s practice to implement paragraphs
subheadings to improve readability. § 5.567 (published as proposed on (c)(3) and (c)(4) of that section as
Instead of referring to an ‘‘application October 1, 2004, see 69 FR 59072, exceptions to the claim filing
form,’’ proposed § 5.50 refers to an 59089–90 [RIN 2900–AL71 Accrued requirement of paragraph (c)(1) of that
‘‘application’’ because, according to the Benefits, Death Compensation, and section.

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The exception in § 3.152(c)(3) applies Section 5.54 Informal Claims the basis of new and material evidence
when VA denies DIC to a surviving Proposed § 5.54 is based on current and awards the benefit sought, the
spouse. The exception in current § 3.155, pertaining to informal claims. award is effective on the date
paragraph (c)(4) applies when VA Paragraph (a) of this section refers to an entitlement arose or the date that VA
discontinues payment of death benefits ‘‘application’’ instead of an ‘‘application received the claim to reopen, whichever
to a surviving spouse because of the form’’ to be consistent with the is later.’’ Throughout this proposed
death or remarriage of the surviving proposed definition of ‘‘application.’’ To rulemaking, we use the terms ‘‘deny’’ or
spouse, or when a child becomes ‘‘denied’’ instead of ‘‘disallow’’ or
use plain language, we have changed
eligible for DIC by turning 18. In the ‘‘disallowed’’ because we believe the
the Latin expression, ‘‘sui juris,’’ in the
circumstances described in current former is easier for the public to
phrase ‘‘a claimant who is not sui juris’’
paragraph (c)(3), VA construes the understand. No substantive change is
to its English meaning, ‘‘a claimant who
surviving spouse’s claim as the claim of intended by this use of terminology.
does not have the capacity to manage
the child named in the surviving his or her own affairs’’. We intend no Section 5.56 Report of Examination or
spouse’s claim. In the circumstances substantive change. Further, the Hospitalization as Claim for Increase or
described in current paragraph (c)(4), references to §§ 3.151 and 3.152 have To Reopen
VA converts the surviving spouse’s been changed to their proposed part 5 Section 5.56 is based on current
claim into a claim on behalf of the child counterparts, §§ 5.51 and 5.52 of this § 3.157. It has been slightly reorganized.
named in the surviving spouse’s claim. NPRM, respectively. Proposed paragraph § 5.56(a) is based on
VA construes or converts the surviving In paragraph (b), we have added the the second sentence of current
spouse’s claim in the circumstances word ‘‘recognized’’ before ‘‘service § 3.157(a). The first sentence of current
described in current paragraphs (c)(3) organization’’ and the word § 3.157(a) has not been repeated, since
and (c)(4), respectively, if and only if ‘‘accredited’’ before ‘‘attorney or agent’’ it is redundant of the general effective
any necessary evidence is submitted to be consistent with part 14 of this date rule in proposed § 5.150. The third
within 1 year after VA requests the chapter. We have also made explicit that sentence of current § 3.157(a), which
evidence. Otherwise each child must the recognized service organization or contains a provision on liberalizing laws
file a new claim. accredited individual submitting an or VA issues, is now in a new paragraph
These exceptions are stated explicitly informal claim must be the designated (d) of proposed § 5.56. In paragraph (d),
in proposed § 5.52(c)(1) and (c)(2). The representative of the claimant ‘‘as the reference to § 3.114 has been
exceptions are consistent with 38 U.S.C. required by § 14.631 of this chapter’’. changed to the proposed part 5
§ 5110(e), because they construe the Section 5.55 Claims Based on New and counterpart, § 5.152, which was
surviving spouse’s claim as the child’s Material Evidence published as proposed on May 22, 2007.
claim in the circumstances described. See 72 FR 28770, 28789 [RIN 2900–
Construed this way, the surviving Proposed § 5.55(a) is based on current AM01 General Evidence Requirements,
spouse’s claim satisfies the date of claim § 3.156(a). No changes are proposed to Effective Dates, Revision of Decisions,
requirement of 5110(e). this provision. Paragraphs (b) and (c) of and Protection of Existing Ratings].
current § 3.156 are not included in Proposed paragraph (b) is based on
Current § 3.152 uses the terms ‘‘child’’ proposed § 5.55. They have been
and ‘‘children’’ interchangeably. In the introductory paragraph of current
included in § 5.153 and § 5.166 § 3.157(b) and is split into three
§ 5.52 we propose to use only the term respectively, which were published as
‘‘child’’, which encompasses both the subparagraphs. Proposed paragraphs
proposed, in a separate NPRM, on May (c)(1), (c)(2), and (c)(3) are based on
singular and plural, for consistency. No 22, 2007. See 72 FR 28770, 28789,
substantive change is intended. current § 3.157(b)(1), (b)(2), and (b)(3).
28791 [RIN 2900–AM01 General The regulation has also been rewritten
Section 5.53 Claims for Benefits Under Evidence Requirements, Effective Dates, in plain language and subheadings have
38 U.S.C. 1151 for Disability or Death Revision of Decisions, and Protection of been added for greater readability. There
Due to VA Treatment or Vocational Existing Ratings]. are no substantive changes.
Rehabilitation Paragraph (b) of proposed § 5.55
consolidates the effective date rules for Section 5.57 Status of Claims
Section 5.53 is based on current claims reopened based on new and Proposed § 5.57 is based on current
§ 3.154, pertaining to claims for benefits material evidence. The rules are § 3.160, which provides definitions of
under 38 U.S.C. 1151 for disability or currently found in the introduction to informal claim, original claim, pending
death due to treatment in a VA facility § 3.400 and in § 3.400(q)(2) and (r). claim, finally adjudicated claim,
or due to a VA vocational rehabilitation Current § 3.400(q)(2) provides that when reopened claim, and claim for increase,
program. Proposed § 5.53 contains only new and material evidence is submitted respectively.
minor stylistic changes, as well as a after a claim has been finally Proposed § 5.57 includes a new
change in title. The new title is more disallowed, VA will assign the effective paragraph, (a), defining ‘‘formal claim’’.
accurate and descriptive. The cross- date of an award based on the ‘‘[d]ate of In proposed paragraph (a) we define
reference in proposed § 5.53 differs from receipt of new claim or date entitlement ‘‘formal claim’’ as ‘‘A claim filed on the
the cross-reference in current § 3.154 in arose, whichever is later.’’ That rule is application required for a specific
that only those provisions that apply to substantively identical to the general benefit.’’ VA has implicitly defined
claims for benefits under 38 U.S.C. 1151 rule governing the effective date for an ‘‘formal claim’’ in current § 3.155(a)
that are received by VA after September award based on ‘‘a claim reopened after with the language, ‘‘Upon receipt of an
30, 1997, are included. Current §§ 3.358 final disallowance’’ set forth in the informal claim, if a formal claim has not
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and 3.800 apply to claims under 38 introductory text of § 3.400. The same been filed, an application form will be
U.S.C. 1151(a) that VA received before rule is stated a third time in § 3.400(r). forwarded to the claimant for
October 1, 1997. Because part 5 will Proposed § 5.55(b) consolidates these execution.’’ The term ‘‘formal claim’’
apply only to future claims, we will not provisions into one rule: ‘‘[e]xcept as also appears in current §§ 3.154 and
repeat the provisions of current §§ 3.358 otherwise provided in this chapter, if 3.157(b). The new definition in § 5.57(a)
and 3.800 in part 5. VA reopens a finally denied claim on makes the implicit definition explicit

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and clarifies the relationship between a net benefits (including potential 64.106, Specially Adapted Housing for
claim and an application, as those terms economic, environmental, public health Disabled Veterans; 64.109, Veterans
are defined in proposed § 5.1. and safety, and other advantages; Compensation for Service-Connected
In § 5.57(b) through (g), we propose to distributive impacts; and equity). The Disability; 64.110, Veterans Dependency
use slightly different language in our Executive Order classifies a ‘‘significant and Indemnity Compensation for
definitions of ‘‘original claim,’’ regulatory action,’’ requiring review by Service-Connected Death; 64.115,
‘‘pending claim,’’ ‘‘finally adjudicated the Office of Management and Budget Veterans Information and Assistance;
claim,’’ ‘‘reopened claim,’’ and ‘‘claim (OMB) unless OMB waives such review, and 64.127, Monthly Allowance for
for increase’’ than is used in § 3.160. as any regulatory action that is likely to Children of Vietnam Veterans Born with
Because we propose to distinguish an result in a rule that may: (1) Have an Spina Bifida.
application from a claim, as discussed annual effect on the economy of $100
above under § 5.50, we have modified million or more or adversely affect in a List of Subjects in 38 CFR Part 5
the language; instead of defining them material way the economy, a sector of Administrative practice and
as ‘‘application[s],’’ we propose to the economy, productivity, competition, procedure, Claims, Disability benefits,
define them as ‘‘claim[s]’’ and describe jobs, the environment, public health or Health care, Pensions, Radioactive
their distinguishing characteristics. In safety, or State, local, or tribal materials, Veterans, Vietnam.
the definitions of ‘‘finally adjudicated governments or communities; (2) Create Approved: December 26, 2007.
claim’’ and ‘‘pending claim’’ we have a serious inconsistency or otherwise Gordon H. Mansfield,
not repeated unnecessary language interfere with an action taken or
Deputy Secretary of Veterans Affairs.
referring to ‘‘formal or informal’’ claims. planned by another agency; (3)
No substantive changes are proposed. Materially alter the budgetary impact of For the reasons set forth in the
entitlements, grants, user fees, or loan preamble, VA proposes to further
Endnote Regarding Amendatory programs or the rights and obligations of amend 38 CFR part 5, as proposed to be
Language recipients thereof; or (4) Raise novel added at 69 FR 4832, January 30, 2004,
We intend to ultimately remove part legal or policy issues arising out of legal and as further proposed to be amended
3 entirely, but we are not including mandates, the President’s priorities, or at 70 FR 24680, May 10, 2005; 71 FR
amendatory language to accomplish that the principles set forth in the Executive 16464, March 31, 2006; and 72 FR
at this time. VA will provide public Order. 28770, May 22, 2007, as follows:
notice before removing part 3. The economic, interagency,
budgetary, legal, and policy PART 5—COMPENSATION, PENSION,
Paperwork Reduction Act of 1995 implications of this proposed rule have BURIAL, AND RELATED BENEFITS
Although this document contains been examined and it has been
provisions constituting a collection of determined to be a significant regulatory Subpart A—General Provisions
information, at 38 CFR §§ 5.51, 5.52, action under the Executive Order 1. The authority citation for subpart A
5.54, 5.55, and 5.56, under the because it is likely to result in a rule that continues to read as follows:
provisions of the Paperwork Reduction may raise novel legal or policy issues
Act of 1995 (44 U.S.C. 3501–3521), no arising out of legal mandates, the Authority: 38 U.S.C. 501(a) and as noted in
new or proposed revised collections of specific sections.
President’s priorities, or the principles
information are associated with this set forth in the Executive Order. 2. Section 5.1 is amended by adding
proposed rule. The information definitions of ‘‘application’’ and
Unfunded Mandates
collection requirements for §§ 5.51, ‘‘claim’’ in alphabetical order to read as
5.52, 5.54, 5.55, and 5.56 are approved The Unfunded Mandates Reform Act follows:
by the Office of Management and of 1995 requires, at 2 U.S.C. 1532, that
agencies prepare an assessment of § 5.1 General definitions.
Budget (OMB) and have been assigned
OMB control numbers 2900–0001, anticipated costs and benefits before * * * * *
2900–0003, 2900–0004, 2900–0005, and issuing any rule that may result in an Application means a specific form
2900–0006. expenditure by State, local, and tribal required by the Secretary that a claimant
governments, in the aggregate, or by the must file to apply for a benefit.
Regulatory Flexibility Act private sector, of $100 million or more (Authority: 38 U.S.C. 501(a))
The Secretary hereby certifies that (adjusted annually for inflation) in any * * * * *
this proposed regulatory amendment 1 year. This proposed rule would have Claim means a formal or informal
will not have a significant economic no such effect on State, local, and tribal communication in writing requesting a
impact on a substantial number of small governments, or on the private sector. determination of entitlement, or
entities as they are defined in the evidencing a belief in entitlement, to a
Catalog of Federal Domestic Assistance
Regulatory Flexibility Act, 5 U.S.C. 601– VA benefit.
Numbers and Titles
612. This proposed amendment would
not affect any small entities. Therefore, The Catalog of Federal Domestic (Authority: 38 U.S.C. 501(a), 5100)
pursuant to 5 U.S.C. 605(b), this Assistance program numbers and titles * * * * *
proposed amendment is exempt from for this proposal are 64.100,
the initial and final regulatory flexibility Automobiles and Adaptive Equipment Subpart C—Adjudicative Process,
analysis requirements of sections 603 for Certain Disabled Veterans and General
and 604. Members of the Armed Forces; 64.101, 3. The authority citation for part 5,
Burial Expenses Allowance for
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Executive Order 12866 subpart C, continues to read as follows:


Veterans; 64.102, Compensation for
Executive Order 12866 directs Service-Connected Deaths for Veterans’ Authority: 38 U.S.C. 501(a) and as noted in
agencies to assess all costs and benefits Dependents; 64.104, Pension for Non- specific sections.
of available regulatory alternatives and, Service-Connected Disability for 4. Sections 5.50 through 5.57 and
when regulation is necessary, to select Veterans; 64.105, Pension to Veterans their undesignated center heading are
regulatory approaches that maximize Surviving Spouses, and Children; added to subpart C to read as follows:

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Subpart C—Adjudicative Process, General § 5.51 Filing a claim for disability benefits. surviving spouse’s custody, if the child
VA Benefit Claims (a) A claim must be filed in order for is named in the claim.
benefits to be paid. An individual must (4) Effective date when a surviving
Sec. spouse’s claim is denied. If VA denies
5.50 Applications furnished by VA. file a specific claim in the form
prescribed by the Secretary in order for a claim of a surviving spouse for any
5.51 Filing a claim for disability benefits.
5.52 Filing a claim for death benefits. disability benefits to be paid under the reason whatsoever, an award for a child
5.53 Claims for benefits under 38 U.S.C. laws administered by VA. named in the surviving spouse’s claim
1151 for disability or death due to VA (b) Claims for compensation or will be made as though the denied claim
treatment or vocational rehabilitation. pension. VA may consider a claim for had been filed solely on the child’s
5.54 Informal claims. compensation as a claim for pension behalf, provided that evidence
5.55 Claims based on new and material also, and VA may consider a claim for requested from the child in order to
evidence. determine entitlement is submitted
pension as a claim for compensation
5.56 Report of examination or within 1 year after the date of such
hospitalization as claim for increase or to also. VA will award the greater benefit,
unless the claimant specifically elects request. This provision applies
reopen. regardless whether the evidence was
5.57 Status of claims. the lesser benefit.
5.58–5.79 [Reserved]
requested before or after VA denied the
(Authority: 38 U.S.C. 501(a), 5101(a)) surviving spouse’s claim. If the evidence
Authority: 38 U.S.C. 501(a) and as noted in Cross References: Definition of claim. requested is not submitted within 1 year
specific sections. after the date of VA’s request, payments
See § 5.1. Informal claims. See § 5.54.
may not be made for the child for any
Subpart C—Adjudicative Process, § 5.52 Filing a claim for death benefits. period prior to the date of receipt of a
General
(a) Form of claim. An individual must new claim.
VA Benefit Claims file a specific claim in the form (5) Effective date when a surviving
prescribed by the Secretary (or jointly spouse’s claim is converted to a claim
§ 5.50 Applications furnished by VA. with the Commissioner of Social on behalf of a child. Where payments of
(a) General. Upon request in person or Security, as prescribed by § 5.131(a)) in death pension, death compensation, or
in writing, VA will furnish the order for death benefits to be paid under DIC to a surviving spouse have been
appropriate application to a person the laws administered by VA. (See discontinued because of remarriage or
claiming or applying for, or expressing §§ 5.431 and 5.567 concerning effective death, or where a child becomes eligible
intent to claim or apply for, benefits dates of awards of improved death for DIC by reason of turning 18 years
under the laws administered by VA. pension and of DIC, respectively.) old, and any necessary evidence is
(Authority: 38 U.S.C. 501(a), 5101(a))
submitted within 1 year after the date of
(b) VA will furnish an application to a request from VA, an award for the
a dependent upon the death of a (b) VA treats certain claims as claims child named in the surviving spouse’s
veteran. Upon the receipt of notice of for more than one benefit. claim will be made on the basis of the
the death of a veteran, VA will forward (1) A claim by a surviving spouse or surviving spouse’s claim having been
the appropriate application for child for death compensation will also converted to a claim on behalf of the
execution by or on behalf of any be considered a claim for death pension. child. Otherwise, payments may not be
dependent who has apparent (2) A claim by a surviving spouse or made for any period prior to the date of
entitlement to death compensation, child for dependency and indemnity receipt of a new claim from the child.
death pension, or dependency and compensation (DIC) will also be (Authority: 38 U.S.C. 501, 5110(e))
indemnity compensation. If it is not considered a claim for death pension.
indicated that any person would be (3) A claim by a surviving spouse or Cross Reference: Other claims
entitled to such benefits, but an accrued child for death pension will also be accepted as a claim for accrued benefits
benefit that has not been paid during the considered a claim for DIC and, if the or benefits awarded, but unpaid at
veteran’s lifetime is payable, VA will veteran died before January 1, 1957, for death. See § 5.552(c).
forward the appropriate application to death compensation. § 5.53 Claims for benefits under 38 U.S.C.
the preferred dependent. VA will 1151 for disability or death due to VA
(Authority: 38 U.S.C. 501(a), 5101(b)(1))
include notice of the time limit for filing treatment or vocational rehabilitation.
a claim for accrued benefits in letters (c) Claims for death benefits by, or on VA may accept as a claim for benefits
accompanying applications for such behalf of, a child. under 38 U.S.C. 1151 and § 3.361 of this
benefits. (1) Child turns 18 years old. Except as chapter any communication in writing
Cross Reference: Extension of time provided in paragraphs (c)(4) and (c)(5) indicating an intent to file a claim for
limit. See § 3.109(b) of this chapter. of this section, where a child’s disability compensation or dependency
entitlement to DIC arises by reason of and indemnity compensation (DIC)
(c) VA will not forward an application the child turning 18 years old, a claim
for claims for disability or death due to under the laws governing entitlement to
will be required. VA benefits for disability or death due
hospital treatment, medical or surgical (2) Termination of a surviving
treatment, examination, or training. to VA hospital care, medical or surgical
spouse’s right to DIC. Except as treatment, examination, training and
When disability or death is due to VA provided in paragraph (c)(5) of this
hospital care, medical or surgical rehabilitation services, or compensated
section, when a surviving spouse’s right work therapy program. Such
treatment, examination, training and to DIC is terminated, a child’s
rehabilitation services, or compensated communication may be contained in a
entitlement to DIC in his or her own
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work therapy program, VA will not formal claim for pension, disability
right arises and a claim is required. compensation, or DIC, or in any other
forward an application for benefits (3) When a surviving spouse does not
under 38 U.S.C. 1151. (See § 5.53 for the document.
have entitlement. When a claim is filed
requirements for filing a claim pursuant by a surviving spouse who does not (Authority: 38 U.S.C. 1151)
to 38 U.S.C. 1151.) have entitlement, VA will accept the Cross References: Effective dates. See
(Authority: 38 U.S.C. 501(a), 5101, 5102) claim as a claim for a child in the § 3.400(i) of this chapter. Injury or death

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20142 Federal Register / Vol. 73, No. 72 / Monday, April 14, 2008 / Proposed Rules

due to hospitalization and treatment, Cross Reference: See § 20.1304(b)(1)(i) (ii) Date of claim. The date of the
including effective dates. See §§ 3.361 to of this title for the rule on effective date outpatient or hospital examination or
3.363 of this chapter. assigned when evidence is submitted to date of admission to a VA or uniformed
the Board of Veterans’ Appeals during a services hospital will be accepted as the
§ 5.54 Informal claims. pending appeal. date of receipt of the claim. In the case
(a) Any communication or action, of a uniformed service examination
indicating an intent to apply for one or § 5.56 Report of examination or which is the basis for granting severance
more benefits under the laws hospitalization as claim for increase or to
reopen.
pay to a former member of the Armed
administered by VA, from a claimant, Forces on the temporary disability
his or her duly authorized (a) General. A report of examination
retired list, the date of the examination
representative, a Member of Congress, or or hospitalization that meets the
will be accepted as the date of receipt
some person acting as next friend of a requirements of this section will be
of the claim. In the case of an admission
claimant who does not have the accepted as an informal claim for
to a non-VA hospital where a veteran
capacity to manage his or her own benefits under an existing law or for
was maintained at VA expense, the date
affairs may be considered an informal benefits under a liberalizing law or VA
of admission will be accepted as the
claim. Such informal claim must issue, if the report relates to a disability
date of receipt of claim, if VA
identify the benefit sought. Upon receipt which may establish entitlement.
maintenance was previously authorized.
of an informal claim, if a formal claim (b) Requirements—(1) Prior claim for
If VA maintenance was authorized after
has not been filed, an application will pension or disability compensation
admission, the date VA received notice
be forwarded to the claimant for allowed, or prior claim for
of admission will be the date of receipt
execution. If received within 1 year after compensation denied because the
of the claim.
the date it was sent to the claimant, it service-connected disability was not
(2) Evidence from a private physician
will be considered filed as of the date compensable in degree. Once a formal
or layman—(i) General. Evidence from a
of receipt of the informal claim. claim for pension or disability
private physician or layman will be
(b) A communication received from a compensation has been allowed, or once
accepted when the evidence furnished
recognized service organization, or an a formal claim for disability
by or on behalf of the claimant is within
accredited attorney or agent may not be compensation has been denied because
the competence of the physician or lay
accepted as an informal claim if a power the service-connected disability is not
person and shows a reasonable
of attorney as required by § 14.631 of compensable in degree, receipt of
probability of entitlement to benefits.
this chapter was not executed at the evidence as described in paragraph (c)
(ii) Date of claim. The date that VA
time the communication was written. of this section will be accepted as an
received such evidence will be accepted
informal claim for increased benefits or
(c) When a claim has been filed which as the date of claim.
an informal claim to reopen.
meets the requirements of § 5.51 or (3) Evidence from State and other
(2) Prior claim for pension or
§ 5.52, an informal request for increase institutions—(i) General. Examination
compensation denied because the
or reopening will be accepted as a reports, clinical records, or transcripts
veteran is receiving retirement pay. If a
claim. of records from State, county,
formal claim for pension or
(Authority: 38 U.S.C. 501(a), 5102(a)) municipal, or recognized private
compensation from a retired member of
institutions, or other Government
§ 5.55 Claims based on new and material
a uniformed service has been denied
hospitals (except those described in
evidence. because the veteran was receiving
paragraph (c)(1) of this section) will be
retirement pay, receipt of evidence as
(a) New and material evidence. A accepted, provided the following
described in paragraph (c) of this
claimant may reopen a finally requirements are met. These records
section will be accepted as an informal
adjudicated claim by submitting new must be authenticated by an appropriate
claim for pension or compensation.
and material evidence. New evidence (3) Prior claim for pension denied official of the institution. Benefits will
means existing evidence not previously because the disability was not be granted if the records are adequate
submitted to agency decisionmakers. permanently and totally disabling. If a for rating purposes; otherwise findings
Material evidence means existing claim for pension has been denied will be verified by official examination.
evidence that, by itself or when because the disability was not Reports received from private
considered with previous evidence of permanently and totally disabling, institutions not listed by the American
record, relates to an unestablished fact receipt of evidence as described in Hospital Association must be certified
necessary to substantiate the claim. New paragraph (c) of this section will be by the Chief Medical Officer of VA or
and material evidence can be neither accepted as an informal claim for physician designee.
cumulative nor redundant of the pension. (ii) Date of claim. When submitted by
evidence of record at the time of the last (c) Evidence—(1) Report of or on behalf of the veteran and
prior final denial of the claim sought to examination or hospitalization by VA or entitlement is shown, the date VA
be reopened, and must raise a uniformed services. received such evidence will be accepted
reasonable possibility of substantiating (i) General. The provisions of as the date of the claim.
the claim. paragraph (c)(1) of this section apply (d) Liberalizing law or VA issue.
(b) Effective date. Except as otherwise only when the reports described in Acceptance of a report of examination
provided in this chapter, if VA reopens paragraph (c)(1)(ii) of this section relate or treatment as a claim for increase or
a finally denied claim on the basis of to examination or treatment of a to reopen is subject to the requirements
new and material evidence and awards disability for which service-connection of § 5.152 with respect to action on VA
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the benefit sought, the award is effective has previously been established or when initiative or at the request of the
on the date entitlement arose or the date a claim specifying the benefit sought is claimant and the payment of retroactive
that VA received the claim to reopen, received within 1 year after the date of benefits from the date of the report or
whichever is later. an examination, treatment, or hospital for a period of 1 year prior to the date
(Authority: 38 U.S.C. 501(a), 5103A(f), 5108, admission described in paragraph of receipt of the report.
5110(a)) (c)(1)(ii) of this section. (Authority: 38 U.S.C. 501)

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§ 5.57 Status of claims. action having become final by the the Board in its decision and was
The following definitions are expiration of 1 year after the date of referred to the agency of original
applicable to claims for pension, notice of an award or denial, or by jurisdiction for consideration as
disability compensation, and denial on appellate review, whichever is provided in § 20.1304(b)(1) of this
dependency and indemnity the earlier. (See §§ 20.1103 and 20.1104 chapter.
compensation. of this chapter.)
(a) Formal claim. A claim filed on the (g) Claim for increase. Any claim for
(f) Reopened claim. Any claim for a an increase in rate of a benefit being
application required for a specific
benefit. benefit received after a final denial of an paid under a current award, or for
(b) Informal claim. See § 5.54. earlier claim, or any claim based on resumption of payments previously
(c) Original claim. An initial formal additional evidence or a request for a discontinued.
claim. (See §§ 5.51 and 5.52.) personal hearing submitted more than
(Authority: 38 U.S.C. 501)
(d) Pending claim. A claim which has 90 days after notice is provided to the
not been finally adjudicated. appellant of the certification of an §§ 5.58–5.79 [Reserved]
(e) Finally adjudicated claim. A claim appeal and transfer of applicable
which has been allowed or denied by records to the Board of Veterans’ [FR Doc. E8–7898 Filed 4–11–08; 8:45 am]
the agency of original jurisdiction, the Appeals which was not considered by BILLING CODE 8320–01–P
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