Rule2023-25836
Reevaluation of Claims for Dependency and Indemnity Compensation
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 24, 2023
Effective
January 23, 2024
Issuing agencies
Veterans Affairs Department
Abstract
The Department of Veterans Affairs (VA) amends its adjudication regulations concerning certain awards of Dependency and Indemnity Compensation (DIC). Under this amendment, relevant claimants will be eligible to elect to have certain previously denied DIC claims reevaluated pursuant to changes that establish or modify a presumption of service connection. Any award as a result of the reevaluation may be made retroactive as if the establishment or modification of the presumption of service connection had been in effect on the date of the submission of the original claim. This amendment incorporates legislative changes enacted by the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 and will bring Federal regulations into conformance with those changes.
Full Text
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<title>Federal Register, Volume 88 Issue 225 (Friday, November 24, 2023)</title>
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[Federal Register Volume 88, Number 225 (Friday, November 24, 2023)]
[Rules and Regulations]
[Pages 82261-82264]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-25836]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AR76
Reevaluation of Claims for Dependency and Indemnity Compensation
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: The Department of Veterans Affairs (VA) amends its
adjudication regulations concerning certain awards of Dependency and
Indemnity Compensation (DIC). Under this amendment, relevant claimants
will be eligible to elect to have certain previously denied DIC claims
[[Page 82262]]
reevaluated pursuant to changes that establish or modify a presumption
of service connection. Any award as a result of the reevaluation may be
made retroactive as if the establishment or modification of the
presumption of service connection had been in effect on the date of the
submission of the original claim. This amendment incorporates
legislative changes enacted by the Sergeant First Class Heath Robinson
Honoring our Promise to Address Comprehensive Toxics Act of 2022 and
will bring Federal regulations into conformance with those changes.
DATES: This rule is effective January 23, 2024. Federal law requires VA
to set the effective date of major rules such as this rule no sooner
than 60 days after publication in the Federal Register. 5 U.S.C.
801(a)(3).
FOR FURTHER INFORMATION CONTACT: Eric Baltimore, Management and Program
Analyst, Pension and Fiduciary Service (21PF), Veterans Benefits
Administration, Department of Veterans Affairs, 810 Vermont Avenue NW,
Washington, DC 20420, (202) 632-8863. (This is not a toll-free number.)
SUPPLEMENTARY INFORMATION: In a document published in the Federal
Register on March 22, 2023, at 88 FR 17166, VA proposed to amend its
adjudication regulations concerning certain awards of DIC. Under this
amendment, relevant claimants will be eligible to elect to have certain
previously denied DIC claims reevaluated pursuant to changes that
establish or modify a presumption of service connection. Any award as a
result of the reevaluation may be made retroactive as if the
establishment or modification of the presumption of service connection
had been in effect on the date of the submission of the original claim.
This amendment incorporates legislative changes enacted by section 204
of the Sergeant First Class Heath Robinson Honoring our Promise to
Address Comprehensive Toxics Act of 2022, or the Honoring our PACT Act
of 2022, Public Law 117-168 (herein referred to as ``the PACT Act'').
The 60-day public comment period ended on May 22, 2023.
VA received three comments. While VA appreciates the commenters'
concerns, several of the comments are unrelated to the reevaluation of
claims for DIC under section 204 of the PACT Act. VA will not make any
changes to the rule as proposed based on these comments. Nevertheless,
VA provides the following responses and highlights the limitations of
this rule based on section 204 of the PACT Act.
The first commenter urged the necessity of proposed bill H.R. 3518,
the ``Victims of Agent Orange Relief Act of 2021.'' In particular, the
commenter emphasized that ``[t]here is a growing group of daughters of
[A]gent [O]range male Veterans that have been ignored for years!''
According to <a href="http://Congress.gov">Congress.gov</a>, H.R. 3518 was introduced in the House and
referred to the Committees on Veterans' Affairs, Foreign Affairs, and
Energy and Commerce on May 25, 2021. The Committee on Energy and
Commerce then referred the resolution to the Subcommittee on Health on
May 26, 2021, which was the most recent action. As noted in the
resolution's summary, ``[u]nder the bill, certain benefits will be made
available to the children of male Vietnam veterans who are affected by
certain birth defects. Currently, these benefits are only available to
the children of women Vietnam veterans.'' \1\ Precisely, according to
its text, the bill sought, in relevant part, to amend subchapter II of
chapter 18 of 38 U.S.C. by striking all references to ``women'' Vietnam
Veterans, a change that would have the effect of expanding eligibility
to the children of male Vietnam Veterans as noted in the summary. The
bill has so far not been enacted, and therefore it can have no bearing
on this or any other VA rulemaking.
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\1\ Text--H.R. 3518--117th Congress (2021-2022): Victims of
Agent Orange Relief Act of 2021, H.R. 3518, 117th Cong. (2021),
available at <a href="https://www.congress.gov/bill/117th-congress/house-bill/3518/text">https://www.congress.gov/bill/117th-congress/house-bill/3518/text</a>.
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The second commenter praised the benefits of the PACT Act but
highlighted three areas where the proposed rule was ``underinclusive:''
(1) only DIC claims, and not Veteran's disability claims, can be
awarded retroactive to the original filing date following a
reevaluation; (2) only previously denied DIC claims where a
reevaluation was elected, and not pending claims for DIC, may be
afforded a retroactive award; and (3) the reevaluation process may only
be initiated by the original claimant. The third commenter also raised
the issue of DIC claims, and not live Veterans' disability claims,
being eligible for the special retroactive treatment. To address these
concerns, VA provides the following responses and highlights the
limitations of this proposed rule based on section 204 of the PACT Act.
First, the new regulation codified by this final rule, 38 CFR 3.33,
focuses solely on reevaluations of previously denied DIC claims as
discussed in section 204 of the PACT Act. Therefore, understanding the
limitations of section 204 of the PACT Act, this regulation cannot
extend retroactivity to the original filing date following a
reevaluation for a Veteran's disability claim. Of note, VA intends to
implement the PACT Act's provisions on disability benefits in a
separate rulemaking. See Introduction to the Unified Agenda of Federal
Regulatory and Deregulatory Actions--Fall 2022, 88 FR 10966, 11120
(Feb. 22, 2023) (``Updating VA Adjudication Regulations for Disability
or Death Benefits Based on Toxic Exposure.''). The separate rulemaking
on disability benefits would have its own notice-and-comment period.
Second, the retroactive provisions within the new regulation are
limited to the reevaluation of a previously denied claim for DIC and do
not apply to retroactivity for a pending DIC claim received by VA but
not yet decided. This conforms to the application of the requirements
within 38 U.S.C. 1305(a)(3), as added by section 204(a) of the PACT
Act. Retroactive application is not authorized for the additional
presumptive diseases prescribed within the PACT Act outside of section
204. We note that this commenter raised the concern of a DIC claimant
whose claim is awaiting review by the Board of Veterans' Appeals at the
time the new presumption goes into effect, potentially losing multiple
years' worth of benefits. The commenter's concern proceeds from the
premise that a claim cannot qualify for special retroactive treatment
under section 204 of the PACT Act while the claim is pending on appeal.
The statute requires only that the claim have been ``denied,'' not that
the denial have become final due to either passage of the appellate
review period or final denial on appeal. We do not believe there is any
textual ambiguity on this point. However, to the extent some may
disagree, VA notes that disqualifying a DIC claim from special
retroactive treatment due to a pending appeal would have the perverse
effect of disincentivizing claimants from pursuing their appellate
rights. This is particularly concerning in light of the fact that a
claimant would have to be making the decision of whether to appeal
before he or she knew with certainty whether the new presumption would
in fact go into effect. Accordingly, VA now clarifies that an initial
denial at the regional office level is all that is needed. We
acknowledge that even under this interpretation, the commenter's
concern retains some force in the context of a claim that is awaiting a
decision when the presumption goes into effect. This outcome is
unavoidable, however, as in this
[[Page 82263]]
situation there is no denial available to trigger application of the
statutory language. VA notes that in this scenario, the effective date
difference between the original claim date and the effective date of
the new presumption ordinarily should be minimal.
Third, as noted in the proposed rulemaking, the PACT Act is silent
on the accrued benefits or substitution processes as they relate to the
reevaluation of previously denied DIC claims. As such, VA must utilize
the existing processes regarding accrued benefits and substitution
contained in 38 U.S.C. 5121 and 5121A. Thus, a claimant may request to
be substituted for the original claimant for the purposes of processing
a DIC reevaluation claim to completion, but only if the original
claimant elected to have the previously denied DIC claim reevaluated.
Of note, federal law allows substitution only for claims that are
already pending at the time of the claimant's death. 38 U.S.C.
5121A(a)(1). Consistent with that restriction, the PACT Act expressly
allows reevaluation only ``at the election of the claimant.'' 38 U.S.C.
1305(a)(2) (italics added). So, if a DIC claimant dies before
requesting reevaluation under the PACT Act, there is no mechanism
available allowing the claim to be reevaluated by a party secondary to
the DIC claimant. VA makes no changes to the rule based on these
comments.
The third commenter offered general observations on the PACT Act's
implications for ``retroactive disability payments'' and ``original
effective dates,'' and requested retroactive benefits for himself based
on the PACT Act effective to the original date of his claims for
disability compensation that VA previously denied. These comments are
unrelated to the reevaluation of claims for DIC under section 204 of
the PACT Act, as such they will not result in any changes being made to
the rule. As noted, VA intends to implement the PACT Act's provisions
on disability benefits in a separate rulemaking.
Of note, when VA grants an award based on a change in law (like the
PACT Act), federal law generally limits the effective date of that
award to no earlier than the effective date of the change in law. 38
U.S.C. 5110(g). That same law also provides that ``[i]n no event'' may
the effective date of an award granted because of a change in law be
earlier than one year before the date of the associated claim or the
date of the administrative determination of entitlement, whichever date
is earlier. Therefore, if a Veteran files a PACT Act claim and VA
grants the claim, the Veteran could still obtain these limited periods
of retroactivity, but the law limits the effective date of that grant
to no earlier than one year before the Veteran filed the claim, and no
earlier than the effective date of the change in law.
VA recognizes the concern that the second and third commenters have
raised regarding the different retroactive effective date treatments
between DIC claims and disability compensation claims for live
Veterans. It is understandable that a Veteran who has been living with
a disability for some time before that disability became subject to
presumptive service connection would object to this difference, as
these two commenters have. Congress has determined that claims for
service-connected death should receive special retroactive effective
dates, while compensation claims for living Veterans must continue to
be subject to traditional effective date rules.
VA does not have authority to contradict ordinarily applicable
statutory effective date law. As the U.S. Supreme Court explained in
January 2023, the effective date provisions in section 5110 of title
38, United States Code, are not only time constraints, but they also
express Congress's intent to limit, subject to enumerated exceptions,
the amounts of payments Veterans may receive. Arellano v. McDonough,
143 S. Ct. 543, 549 (2023). The constraints in 38 U.S.C. 5110(g)
therefore apply unless displaced by a specific statutory effective date
mechanism, as Congress did here for DIC. We note that if a DIC claim
(or any claim) was pending when the PACT Act went into effect, VA will,
and indeed must, complete the processing of that claim to determine if
an earlier effective date on a direct basis (as distinguished from a
presumptive basis) is possible.
Executive Orders 12866, 13563, and 14094
Executive Order 12866 (Regulatory Planning and Review) directs
agencies to assess the costs and benefits of available regulatory
alternatives and, when regulation is necessary, to select regulatory
approaches that maximize net benefits (including potential economic,
environmental, public health and safety effects, and other advantages;
distributive impacts; and equity). Executive Order 13563 (Improving
Regulation and Regulatory Review) emphasizes the importance of
quantifying both costs and benefits, reducing costs, harmonizing rules,
and promoting flexibility. Executive Order 14094 (Executive Order on
Modernizing Regulatory Review) supplements and reaffirms the
principles, structures, and definitions governing contemporary
regulatory review established in Executive Order 12866 of September 30,
1993 (Regulatory Planning and Review), and Executive Order 13563 of
January 18, 2011 (Improving Regulation and Regulatory Review). The
Office of Information and Regulatory Affairs has determined that this
rulemaking is a significant regulatory action under Executive Order
12866, Section 3(f)(1), as amended by Executive Order 14094. The
Regulatory Impact Analysis associated with this rulemaking can be found
as a supporting document at <a href="http://www.regulations.gov">www.regulations.gov</a>.
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). Therefore, pursuant to 5 U.S.C. 605(b), the initial and final
regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do
not apply.
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 one year. This final rule would have no such effect
on State, local, and tribal governments, or on the private sector.
Paperwork Reduction Act
This final rule includes provisions constituting a revised
collection of information under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501-3521) that require approval by the Office of Management and
Budget (OMB). Accordingly, under 44 U.S.C. 3507(d), VA has submitted a
copy of this rulemaking action to OMB for review and approval. OMB has
reviewed and approved this revised collection of information.
Congressional Review Act
Under the Congressional Review Act, this regulatory action may
result in an annual effect on the economy of $100 million or more, 5
U.S.C. 804(2), and so is subject to the 60-day delay in effective date
under 5 U.S.C. 801(a)(3). In accordance with 5 U.S.C. 801(a)(1), VA
will submit to the Comptroller General and to Congress a copy of this
[[Page 82264]]
Regulation and the Regulatory Impact Analysis (RIA) associated with the
Regulation.
List of Subjects in 38 CFR Part 3
Administrative practice and procedure, Claims, Veterans.
Signing Authority
Denis McDonough, Secretary of Veterans Affairs, signed and approved
this document on November 16, 2023, and authorized the undersigned to
sign and submit the document to the Office of the Federal Register for
publication electronically as an official document of the Department of
Veterans Affairs.
Luvenia Potts,
Regulation Development Coordinator, Office of Regulation Policy &
Management, Office of General Counsel, Department of Veterans Affairs.
For the reasons stated in the preamble, the Department of Veterans
Affairs amends 38 CFR part 3 as set forth below:
PART 3--ADJUDICATION
Subpart A--Pension, Compensation, and Dependency and Indemnity
Compensation
0
1. The authority citation for part 3, subpart A, continues to read as
follows:
Authority: 38 U.S.C. 501(a), unless otherwise noted.
0
2. Remove the undesignated center heading ``General'' following Sec.
3.32 and add Sec. 3.33 to read as follows:
Sec. 3.33 Reevaluation of Claims for Dependency and Indemnity
Compensation Involving Presumptions of Service Connection Following
Enactment of Public Law 117-168.
(a) Purpose. This section states effective date and election rules
based on amendments made under Public Law 117-168, which provides for
the reevaluation of certain previously denied dependency and indemnity
compensation (DIC) claims when a law establishes or modifies a
presumption of service connection.
(b) Definitions. For purpose of this section:
(1) Law means any law, regulation, or Federal court decision or
settlement establishing or modifying a presumption of service
connection.
(2) Relevant claimant means an individual who submitted a claim for
DIC to VA that was evaluated and denied by VA before the date on which
such a provision of law went into effect and might have been evaluated
differently had the establishment or modification of the service
connection presumption been applicable to the claim.
(c) Election of review--(1) General. VA will not reevaluate under
this section any previously denied claim for DIC prior to election by
the relevant claimant.
(2) Form of election. Reevaluation of a previously denied DIC claim
must be at the election of the relevant claimant on a prescribed form
pursuant to Sec. 3.152(a).
(d) Effective date of award. If a relevant claimant is found
entitled to DIC based on the establishment or modification of a
presumption of service connection, the effective date of the award will
be as follows:
(1) If VA denied a claim for DIC prior to a law defined under
(b)(1) of this section that establishes or modifies a presumption of
service connection on or after August 10, 2022 (the date of enactment
of Pub. L. 117-168), the effective date of the award will be determined
as if the establishment or modification of the presumption of service
connection had been in effect on the date of the submission of the
original claim.
(2) If the requirements of paragraph (d)(1) are not met, the
effective date of the award shall be determined in accordance with
Sec. Sec. 3.114 and 3.400.
(e) Outreach and identification of relevant claimants. (1) VA will
conduct the following efforts to inform relevant claimants that they
may elect to have a claim reevaluated in light of the establishment or
modification of a presumption of service connection:
(i) Publish on the internet website of the Department a notice that
such claimants may elect to have a claim so reevaluated;
(ii) Notify, in writing or by electronic means, veterans service
organizations of the ability of such claimants to elect to have a claim
so reevaluated; and
(iii) Notify each such claimant in the same manner that the
Department last provided notice of a decision.
(Authority 38 U.S.C. 501, 1305)
[FR Doc. 2023-25836 Filed 11-22-23; 8:45 am]
BILLING CODE 8320-01-P
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</html>Indexed from Federal Register on November 24, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.