Evidence Requirements

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AG85

Evidence Requirements

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document adopts as a final rule, without change, an

interim rule that amends Department of Veterans Affairs (VA)

adjudication regulations concerning the evidence required to establish

birth, death, marriage, or relationship. This amendment was necessary

to expedite the payment of benefits by allowing VA to accept

photocopies of documents necessary to establish birth, death, marriage,

or relationship. The intended effect of this amendment is to improve

the efficiency and timeliness of claims processing.

EFFECTIVE DATE: This document is effective September 7, 1995 (The

interim rule was effective September 8, 1994).

FOR FURTHER INFORMATION CONTACT: Steven Thornberry, Consultant,

Regulations Staff, Compensation and Pension Service, Veterans Benefits

Administration, 810 Vermont Avenue, NW., Washington, DC 20420,

telephone (202) 273-7210.

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SUPPLEMENTARY INFORMATION: On September 8, 1994, VA published in the

Federal Register an interim rule with request for comments (59 FR

46337). The rule revised VA regulations concerning evidence

requirements to permit claimants to use uncertified photocopies of

documents to establish birth, death, marriage, and relationship.

Previous regulations required that a copy of a document be certified

over the signature and official seal of the custodian of the record. We

requested that comments to the interim rule be submitted on or before

November 7, 1994. We received 11 comments, most from officials of state

agencies charged with maintaining and issuing vital records.

The commenters were unanimous in their opinion that by accepting

photocopies VA increases the likelihood that it will erroneously award

benefits based on altered documents.

We currently have adequate safeguards against erroneously awarding

benefits on the basis of altered photocopies. Under 38 CFR 3.216, we

require all compensation, pension, or dependency and indemnity

compensation recipients or claimants to furnish VA the social security

numbers of all dependents on whose behalf benefits are claimed or

received. Under the authority of 38 U.S.C. 5317, VA may exchange data

with other federal agencies to verify information from VA beneficiaries

concerning family members and family income. As an additional

safeguard, we have retained in this rule the right to request a

certified copy of a document if we are not satisfied that the photocopy

submitted is genuine or unaltered. In light of these safeguards, we

can, in our judgment, accept uncertified copies without compromising

the integrity of our benefit programs.

Several commenters saw no need for VA to accept uncertified copies

as a measure to expedite claims processing. Six of these remarked that

it is generally not difficult to obtain certified copies, and 8 stated

that many states provide copies free of charge if they are to be used

to pursue a claim for VA benefits.

Our experience shows that VA's former requirement for certified

copies did delay claims processing. Claimants spent additional time

trying to satisfy that requirement, partly because many did not

understand what VA meant by a certified copy or how to obtain one,

especially from a state other than where they live. We realize that

some states do provide VA claimants certified copies at no cost.

However, if claimants are unaware that certified copies for VA claims

are free or fail to indicate that the copies are needed to obtain VA

benefits, they may be charged. VA claimants should not incur the delay,

expense, or inconvenience of obtaining certified copies of documents if

uncertified photocopies will satisfy VA's needs.

Four commenters remarked that, inasmuch as some states have laws

that prohibit copying certified copies of vital records, VA's

acceptance of uncertified copies could encourage claimants to violate

state laws.

This rule does not require that claimants submit photocopies of

vital records. It merely provides that option to simplify the proof of

claims. Responsibility for obeying state laws lies with the persons

subject to those laws. In any event, the fact that some states prohibit

copying certified copies is no reason to hold all claimants to higher

evidentiary standards.

One commenter suggested that VA request certified copies, photocopy

them for the claimants' records, and return them to the claimants,

since claimants must have a certified copy to photocopy in the first

place.

Many claimants submit original documents in conjunction with

benefit claims, which we routinely return after making copies for our

records. If a claimant submits a certified copy and requests its return

after we have copied it for our records, we honor that request.

However, the claimant still has the responsibility of submitting an

original document or a certified copy, and, consequently, the procedure

does nothing to expedite claims processing. Furthermore, under this

procedure, the original document or the certified copy might be lost in

the mail and have to be replaced. Under this new rule, the claimant

could keep the original or certified copy and submit a photocopy to VA.

One commenter suggested that, if VA's main concern is improving

public service without regard to cost, VA eliminate the requirement for

any form of documentation other than a signature on a claims form.

In fact, section 301(a) of the ``Veterans' Benefits Improvements

Act of 1994,'' Public Law 103-446, approved November 2, 1994,

authorizes VA to accept the written statement of a claimant as proof of

marriage, dissolution of a marriage, birth of a child, and death of any

family member. The statute further provides that VA may require

documentation in certain situations. This law was enacted after

publication of our interim rule on evidence requirements. Whether VA

should accept claimants' statements as proof of relationships is a

separate issue that we may address in future rulemaking.

Three commenters expressed concerns that the members of the Blue

Ribbon Panel on Claims Processing (the Panel), which made the

recommendation implemented by this rulemaking, had little operational

experience dealing with vital records. The commenters felt that the

Panel would have benefited from the advice and recommendations of other

federal agencies that use vital records or of members of the

Association for Vital Records and Health Statistics (AVRHS), who are

the primary keepers of vital records.

The mandate of the Panel was to develop recommendations to shorten

the time it takes VA to make decisions on disability claims and reduce

the backlog of claims, which had reached critical levels at many

regional offices. Accordingly, the Panel's membership comprised VA

officials and representatives from veterans' service organizations with

extensive knowledge of VA claims adjudication. The Panel made 43

recommendations covering a broad spectrum of claims-processing

procedures, including measures to expedite development of evidence

needed for the adjudication of pending claims. The Panel neither

included anyone with expertise in vital records nor sought the advice

of such experts, but we are unaware of how such expertise would have

helped the Panel to develop recommendations to shorten VA's claims

processing time and to reduce the claims backlog. Furthermore, although

the Panel did not seek advice from vital-records experts, the comment

period provided by the interim rule that implemented the Panel's

recommendation gave the opportunity for such input.

One commenter stated that many state and county Vital Records

offices rely on the revenue obtained from issuing certified copies.

Wide-spread acceptance of uncertified photocopies would decrease this

revenue and possibly force some of these self-supporting offices to

increase the price of certified copies.

Although we understand the commenter's concerns, the purpose of

this rule is to improve the efficiency and timeliness of processing

claims for VA benefits. We find that the possible decrease in vital

records offices' revenue does not warrant imposing on claimants more

stringent evidence requirements than are necessary, in our judgment, to

establish entitlement.

VA appreciates the interest of the commenters and thanks them for

their thoughtful remarks. We are here

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affirming as a final rule, without change, the interim rule published

at 59 FR 46337.

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 would not directly affect small entities. Only VA

beneficiaries 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 Secs. 603 and 604.

(The Catalog of Federal Domestic Assistance program numbers are

64.104, 64.105, 64.109, and 64.110).

List of Subjects in 38 CFR Part 3

Administrative practice and procedure, Claims, Health care,

Individuals with disabilities, Pensions, Veterans.

The interim rule published September 8, 1994, in the Federal

Register (59 FR 46337) amending 38 CFR part 3 is adopted as final

without change.

Approved: August 28, 1995.

Jesse Brown,

Secretary of Veterans Affairs.

[FR Doc. 95-22128 Filed 9-6-95; 8:45 am]

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