88192 Federal Register / Vol. 89, No. 216 / Thursday, November 7, 2024 / Proposed Rules 

This document provides early 

notification of our specific plans and 

actions for this program. 

Regulatory Flexibility Act 

Certification: The Secretary certifies that 

the proposed priority would not have a 

significant economic impact on a 

substantial number of small entities. 

The small entities that this proposed 

regulatory action would affect are LEAs, 

including charter schools that operate as 

LEAs under State law; institutions of 

higher education; other public agencies; 

private nonprofit organizations; freely 

associated States and outlying areas; 

Indian Tribes or Tribal organizations; 

and for-profit organizations. We believe 

that the costs imposed on an applicant 

by the proposed priority would be 

limited to paperwork burden related to 

preparing an application and that the 

benefits of the proposed priority would 

outweigh any costs incurred by the 

applicant. 

Participation in the Technical 

Assistance on State Data Collection 

program is voluntary. For this reason, 

the proposed priority would impose no 

burden on small entities unless they 

applied for funding under the program. 

We expect that in determining whether 

to apply for Technical Assistance on 

State Data Collection program funds, an 

eligible entity would evaluate the 

requirements of preparing an 

application and any associated costs 

and weigh them against the benefits 

likely to be achieved by receiving a 

Technical Assistance on State Data 

Collection program grant. An eligible 

entity probably would apply only if it 

determines that the likely benefits 

exceed the costs of preparing an 

application. 

We believe that the proposed priority 

would not impose any additional 

burden on a small entity applying for a 

grant than the entity would face in the 

absence of the proposed action. That is, 

the length of the applications those 

entities would submit in the absence of 

the proposed regulatory action and the 

time needed to prepare an application 

would likely be the same. 

This proposed regulatory action 

would not have a significant economic 

impact on a small entity once it receives 

a grant because it would be able to meet 

the costs of compliance using the funds 

provided under this program. We invite 

comments from eligible small entities as 

to whether they believe this proposed 

regulatory action would have a 

significant economic impact on them 

and, if so, request evidence to support 

that belief. 

Paperwork Reduction Act of 1995 

The proposed priority contains 

information collection requirements that 

are approved by OMB under OMB 

control number 1820–0028. The 

proposed priority does not affect the 

currently approved data collection. 

Accessible Format: On request to the 

program contact person listed under FOR

FURTHER INFORMATION CONTACT, 

individuals with disabilities can obtain 

this document in an accessible format. 

The Department will provide the 

requestor with an accessible format that 

may include Rich Text Format (RTF) or 

text format (txt), a thumb drive, an MP3 

file, braille, large print, audiotape, 

compact disc, or other accessible format. 

Electronic Access to This Document: 

The official version of this document is 

the document published in the Federal 

Register. You may access the official 

edition of the Federal Register and the 

Code of Federal Regulations at 

www.govinfo.gov. At this site you can 

view this document, as well as all other 

Department documents published in the 

Federal Register, in text or Portable 

Document Format (PDF). To use PDF 

you must have Adobe Acrobat Reader, 

which is available free at the site. 

You may also access Department 

documents published in the Federal 

Register by using the article search 

feature at www.federalregister.gov. 

Specifically, through the advanced 

search feature at this site, you can limit 

your search to documents published by 

the Department. 

Glenna Wright-Gallo, 

Assistant Secretary for Special Education and 

Rehabilitative Services. 

[FR Doc. 2024–25862 Filed 11–6–24; 8:45 am] 

BILLING CODE 4000–01–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Parts 14 and 36 

RIN 2900–AS05 

Legal Services, General Counsel, and 

Miscellaneous Claims 

AGENCY: Department of Veterans Affairs. 

ACTION: Proposed rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) proposes to amend its 

regulations governing Legal Services, 

the Office of General Counsel, and 

Miscellaneous Claims to reflect 

nomenclature changes regarding 

employees and groups within the Office 

of General Counsel as well as to make 

other changes intended to further clarify 

and explain various functions and 

procedures within the Office of General 

Counsel. 

DATES: Comments must be received on 

or before January 6, 2025. 

ADDRESSES: Comments must be 

submitted through www.regulations.gov. 

Except as provided below, comments 

received before the close of the 

comment period will be available at 

www.regulations.gov for public viewing, 

inspection, or copying, including any 

personally identifiable or confidential 

business information that is included in 

a comment. We post the comments 

received before the close of the 

comment period on 

www.regulations.gov as soon as possible 

after they have been received. VA will 

not post on www.regulations.gov public 

comments that make threats to 

individuals or institutions or suggest 

that the commenter will take actions to 

harm an individual. VA encourages 

individuals not to submit duplicative 

comments; however, we will post 

comments from multiple unique 

commenters even if the content is 

identical or nearly identical to other 

comments. Any public comment 

received after the comment period’s 

closing date is considered late and will 

not be considered in the final 

rulemaking. In accordance with the 

Providing Accountability Through 

Transparency Act of 2023, a 100 word 

Plain-Language Summary of this 

proposed rule is available at 

Regulations.gov, under RIN 2900–AS05. 

FOR FURTHER INFORMATION CONTACT: 

Michael Gibbs, Executive Director, 

Management, Planning and Analysis, 

Office of General Counsel (026), 

Department of Veterans Affairs, 810 

Vermont Avenue NW, Washington, DC 

20420, (202) 461–4995. (This is not a 

toll-free telephone number.) 

SUPPLEMENTARY INFORMATION: Title 38 of 

the Code of Federal Regulations, chapter 

I, part 14, governs Legal Services, 

General Counsel, and Miscellaneous 

Claims. Executive Order 13563 requires 

agencies to carry out retrospective 

analyses of rules that ‘‘may be 

outmoded, ineffective, insufficient, or 

excessively burdensome, and to modify, 

streamline, expand, or repeal them in 

accordance with what has been 

learned.’’ Exec. Order No. 13563, 

section 6, 76 FR 3821, 3822 (Jan. 21, 

2011). After a review of 38 CFR part 14, 

VA’s Office of General Counsel (OGC) is 

proposing revisions to reflect 

nomenclature changes to the names of 

certain Office of General Counsel offices 

and the employees in those offices. The 

proposed revisions would also make 

changes in certain policies, procedures, 

and authorities. In the amendatory text 


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of this proposed rule, OGC is removing 

38 CFR 14.503 through 14.504 and 

revising 38 CFR 14.500 through 14.502, 

14.505 through 507, 14.514 through 

14.518, 14.560 through 14.561, 14.600 

through 14.605, 14.615 through 14.619, 

14.664 through 14.669, and 14.800 

through 14.810, when necessary to (1) 

decrease the likelihood of introducing 

errors, (2) improve efficiency during the 

publication process, and (3) meet Office 

of the Federal Register drafting and 

formatting requirements for publication. 

The substantive individual changes to 

the affected CFR units are detailed 

elsewhere in this preamble. 

As a result of a reorganization, the 

Office of General Counsel changed its 

organizational structure from regions to 

districts, and further changed the names 

of the leadership in those districts from 

Regional Counsel to Chief Counsel or 

District Chief Counsel. To reflect those 

changes, the following sections are 

proposed to be amended to reflect the 

change in position titles from ‘‘Regional 

Counsel’’ to ‘‘Chief Counsel:’’ 

§§ 14.500(e), 14.501’s title and 

paragraphs (a) and (c) through (e), 

14.514(a), (b), and (e), and 14.516. The 

Regulation’s Table of Contents is also 

proposed to be amended to reflect the 

new ‘‘Chief Counsel’’ language in 

§ 14.501. 

Multiple sections are proposed to be 

amended to reflect a nomenclature 

change from ‘‘Regional Counsel’’ to 

‘‘District Chief Counsel.’’ The sections 

proposed to be amended to reflect the 

new language of ‘‘District Chief 

Counsel’’ are §§ 14.517, 14.518(a) and 

(b)(1) through (4), 14.560, 14.561, 

14.605(b), 14.709(a) through (c), and 

14.807(b). Additional sections are 

proposed to be amended to reflect a 

nomenclature change from ‘‘his or her’’ 

to ‘‘their’’ in §§ 14.500(a), 14.514(b) and 

(c), 14.518(a), 14.600(a), (c) and (d), 

14.605(b) through (e), 14.615(b) and (c), 

14.618(a), 14.619(a), 14.560, 14.665(a), 

14.667(a), 14.807(a), and 14.810(f). 

Proposed amendments are included in 

§§ 14.605(a), 14.665(a), and 14.807(a) to 

change ‘‘he or she’’ to ‘‘they.’’ 

Multiple sections in part 14 are 

proposed to be amended with various 

other nomenclature changes as well as 

changes intended to clarify the meaning 

of the regulations. The language in 

§ 14.500, ‘‘Functions and 

responsibilities of General Counsel’’ and 

specifically paragraph (e) is proposed to 

be amended to remove ‘‘field’’ from the 

phrase ‘‘system of field offices’’ and 

substitute the word ‘‘organizations’’ for 

the phrase ‘‘field installations.’’ This 

amendment is proposed as the current 

language in the regulation is outdated 

and is no longer used to describe the 

Agency’s various offices, locations, and 

organizations. In § 14.500(e), the last 

phrase is proposed to be changed from 

‘‘the Regional Counsel’’ to ‘‘a Chief 

Counsel’’ for consistency in reference to 

the updated title for these positions and 

to reflect that these matters may be 

reported to different Chief Counsels, 

depending on the type of case. Finally, 

in paragraph (f), the word ‘‘as’’ is 

proposed to be inserted in the existing 

phrase so that it now states: ‘‘Other 

matters as assigned.’’ 

Additional amendments are proposed 

in § 14.501 which is proposed to be 

renamed to ‘‘Functions and 

Responsibilities of Chief Counsels’’ to 

reflect the new position titles of 

employees formerly referred to as 

Regional Counsels. Specifically, 

paragraph (b) is proposed to be 

amended to include the phrase ‘‘Deputy 

Chief Counsels’’ before the phrase ‘‘and 

designated staff attorneys’’ to provide a 

more comprehensive list of the Office of 

General Counsel employees who are 

authorized to perform the tasks listed in 

this paragraph. Paragraph (c) includes 

an additional proposed amendment to 

replace the phrase ‘‘installations within 

the district assigned’’ with the phrase 

‘‘organizations within their geographic 

area of responsibility and/or legal 

practice area of responsibility.’’ This 

amendment is proposed as the term 

‘‘installations’’ is outdated and is no 

longer used to describe the Office of 

General Counsel’s areas of 

responsibility. Additional changes are 

proposed in paragraph (b) to correct the 

spelling of ‘‘affidavits’’ and in paragraph 

(c) to change the word ‘‘authority’’ to 

‘‘authorized’’ for readability. 

The language in § 14.501(e) is 

proposed to be amended to remove the 

sentence ‘‘Where it is impractical for the 

Regional Counsel to perform the legal 

service because of cost, distance, etc., 

the customary fee for the service 

rendered by a local attorney employed 

by the Regional Counsel will be borne 

by the administration requesting such 

action.’’ This sentence is proposed to be 

removed as the process described does 

not have a corresponding statutory 

authority. 

Additional amendments are proposed 

in paragraph (f), including the removal 

of the phrase ‘‘addresses of Regional 

Counsels are as follows’’ and the 

removal of the list of regions within the 

Office of General Counsel, the Regional 

Counsel’s physical addresses, and the 

states over which those Regional 

Counsel offices had jurisdiction. This 

information is proposed to be replaced 

with the following statement: ‘‘locations 

and jurisdictions of the District Chief 

Counsels can be found here: https://

www.va.gov/OGC/DistrictOffices.asp.’’ 

This web page link and the new 

language in § 14.501(f) are proposed to 

reflect the updated office names, 

jurisdictions, and locations of the 

District Chief Counsels. 

The language in § 14.502, ‘‘Requests 

for legal opinions from Central Office’’ 

describes the Department officials who 

may make a request for formal legal 

advice from the Office of General 

Counsel. This rulemaking proposes to 

update this section to reflect 

grammatical and nomenclature changes. 

Specifically, the phrase ‘‘requests for’’ is 

proposed to be replaced with ‘‘A request 

for’’ at the beginning of the paragraph 

for readability. To reflect updated titles 

for individuals who hold various 

leadership positions in the Department, 

the following nomenclature changes 

have been proposed: the phrase ‘‘an 

Under Secretary’’ will be inserted after 

‘‘Deputy Secretary’’ and the phrases 

‘‘Assistant Secretaries’’ and ‘‘Deputy 

Assistant Secretaries’’ will be updated 

to ‘‘an Assistant Secretary’’ and ‘‘a 

Deputy Assistant Secretary.’’ The phrase 

‘‘administration head or top staff office’’ 

is proposed to be removed as the 

individuals described with that 

language are now referred to more 

specifically. Finally, the word ‘‘and’’ 

will be replaced with the word ‘‘or’’ 

after the phrase ‘‘Deputy Assistant 

Secretary’’ to indicate that any one of 

the individuals listed may submit a 

request for formal legal advice from the 

Office of General Counsel. 

The Office of General Counsel 

proposes to remove certain regulations 

in their entirety as they contain 

outdated procedures, do not reflect 

current Office of General Counsel 

operations, and describe 

communications between offices and 

teams within the Office of General 

Counsel that do not require reference in 

Federal regulations. Specifically, this 

rulemaking proposes to remove 

§ 14.503, ‘‘Requests for legal advice and 

assistance in other than domestic 

relations matters’’ and § 14.504, 

‘‘Domestic relations questions, authority 

and exceptions’’ in their entirety for 

these reasons. Reference to these 

regulations is also proposed to be 

removed from the Table of Contents in 

part 14. 

Further amendments are proposed to 

§ 14.505, ‘‘Submissions’’ which 

describes how certain Department 

officials can request formal legal advice 

from the Office of General Counsel. 

Specifically, it is proposed that the 

language in this section be amended to 

clarify that it refers to requests for legal 

opinions pursuant to § 14.502. For 

clarity and coherence in the paragraph’s 


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first sentence, it is proposed that the 

phrase ‘‘on which the opinion is 

desired’’ be replaced with ‘‘underlying 

the opinion requested.’’ In the 

paragraph’s second sentence, the 

rulemaking proposes to replace the 

phrase ‘‘original papers will not be 

submitted unless pertinent portions 

thereof cannot practicably be 

summarized or copies made and 

attached as exhibits’’ with the phrase 

‘‘relevant documents should be attached 

as exhibits to the submission.’’ This 

proposed replacement is intended to 

further clarify and simplify these 

instructions and to remove the outdated 

term of ‘‘original papers.’’ 

The language and structure in 

§ 14.507, ‘‘Opinions’’ is proposed to be 

revised to clarify that it relates only to 

those things that the General Counsel 

has designated as precedent, conclusive, 

or advisory opinions and does not apply 

to most of the guidance written by the 

General Counsel or the Office of General 

Counsel. The section is proposed to be 

further amended to clearly delineate 

and describe the three categories of 

opinions. 

The newly proposed paragraph (a) in 

§ 14.507 would provide a general 

overview and introduction of the three 

types of legal opinions described in this 

section that may be requested under 

§ 14.502 or issued when determined 

necessary or appropriate. Under this 

rulemaking, all of the existing language 

in paragraph (a) is proposed to be 

removed or moved to paragraph (b) and 

the newly proposed paragraph (f). 

The proposed changes to paragraph 

(b) in § 14.507 include inserting the title 

‘‘Precedent Opinions’’ to clarify the 

subject of this paragraph and inserting 

the word ‘‘Principal’’ before the phrase 

‘‘Deputy General Counsel acting as or 

for the General Counsel’’ to reflect that 

the Principal Deputy General Counsel is 

the individual who may be acting as or 

for the General Counsel. Proposed 

revisions to the second sentence in (b) 

include the addition of the phrase ‘‘The 

designated holdings in written legal 

opinions’’ at the beginning of the 

sentence to clarify that OGC will 

affirmatively designate certain holdings 

or conclusions as precedent opinions in 

a written legal opinion. Paragraph (b) 

includes a proposed revision to add the 

phrase ‘‘The holdings in an opinion 

designated as a precedent opinion are 

binding’’ at the beginning of the third 

sentence to further clarify that only 

holdings in an opinion that has been 

affirmatively designated as a ‘‘precedent 

opinion’’ are the subject of this section. 

The third sentence includes another 

proposed addition where the phrase ‘‘or 

the opinion has been withdrawn’’ has 

been added at the end of the sentence. 

This proposed language is intended to 

further clarify that the withdrawal of an 

opinion which has been designated as a 

precedent opinion is another action 

which will reverse the status of the 

opinion such that the holdings in that 

opinion are no longer binding on 

Department officials and employees in 

subsequent matters involving a legal 

issue decided in that opinion. Finally, 

the third sentence includes two 

proposed revisions for grammatical 

reasons and specifically, the 

replacement of ‘‘is’’ with the word ‘‘are’’ 

and removal of the word ‘‘or’’ before the 

phrase ‘‘the opinion has been 

overruled.’’ 

This rulemaking proposes to re-write 

paragraph (c) in its entirety to provide 

additional information and explanation 

for the category of opinions designated 

as ‘‘conclusive opinions’’ which is 

mentioned in paragraph (a) but not fully 

described in the existing regulation. To 

provide additional description and 

guidance on ‘‘conclusive opinions,’’ the 

current language in paragraph (c) is 

proposed to be removed as it is outdated 

and references procedures for legal 

opinions that are no longer followed. 

The existing text in paragraph (c) is 

proposed to be replaced with the 

following language: ‘‘Conclusive 

opinions. The designated holdings in 

written legal opinions designated as 

conclusive opinions under this section 

shall be considered by the Department 

of Veterans Affairs to be subject to the 

provisions of 5 U.S.C. 552(a)(2). The 

holdings in an opinion designated as a 

conclusive opinion are binding as to all 

Department officials and employees 

with respect to the particular matter at 

issue, unless there has been a material 

change in controlling statute or 

regulation; the opinion has been 

overruled or modified by a subsequent 

precedent opinion, applicable 

conclusive opinion, or judicial decision; 

or the opinion has been withdrawn.’’ 

This proposed language is intended to 

describe conclusive opinions and 

clearly delineate this type of opinion 

from the others listed in the section. 

The Office of General Counsel 

proposes to include a new paragraph in 

paragraph (d) to describe ‘‘advisory 

opinions’’ which are mentioned in the 

current version of the regulation in 

paragraph (a) but were not specifically 

defined. The new proposed language in 

paragraph (d) describes advisory 

opinions as opinions that are not 

binding but are issued to provide legal 

guidance or recommendations to 

Department officials. 

Two additional paragraphs are 

proposed to be added to § 14.507 to 

provide further guidance on the scope of 

this section and to include language 

from the existing paragraph (a) which 

describes where conclusive opinions are 

maintained. A proposed new paragraph 

(e) would include language to clarify 

that this regulation applies to the 

specific types of legal opinions issued 

by the General Counsel or designee as 

described in paragraphs (a) through (d) 

and acknowledges that employees in the 

Office of General Counsel provide other 

types of informal legal opinions or legal 

guidance in accordance with existing 

policies and practice. 

Finally, a proposed new paragraph (f) 

would describe where opinions from 

this regulation are maintained. Except 

for the newly proposed phrase 

‘‘described in paragraphs (a) through 

(d),’’ the language in the proposed 

paragraph (e) is included in the current 

version of the regulation in paragraph 

(a). The Office of General Counsel 

proposes to move this language to 

paragraph (e) to clarify that it applies to 

all opinions described in this section. 

For grammatical and consistency 

reasons, it is proposed that the word 

‘‘the’’ be inserted before the phrase 

‘‘Department of Veterans Affairs’’ in 

multiple locations throughout the 

section. 

Litigation (Other Than Under the 

Federal Tort Claims Act); 

Indemnification 

The Office of General Counsel 

proposes to amend § 14.514, ‘‘Suits by 

or against United States or Department 

of Veterans Affairs officials; 

indemnification of Department of 

Veterans Affairs employees’’ with 

additional nomenclature changes. This 

section outlines the procedures to be 

followed when lawsuits are filed against 

the Department, the Secretary, and 

individual Department employees. In 

paragraphs (a) and (b), the word 

‘‘petition’’ is proposed to be replaced 

with ‘‘complaint’’ to correct outdated 

language. In paragraph (b), the phrase 

‘‘(or equivalent position)’’ is proposed to 

be included in the second sentence after 

‘‘facility Director’’ to clarify that the 

official who completes an affidavit 

regarding an employee’s scope of 

employment may hold a position other 

than facility Director. The phrase ‘‘two 

copies of’’ is proposed to be removed 

from the last sentence as it refers to an 

outdated process for transmitting paper 

copies. In paragraph (c)(4), the word 

‘‘advice’’ is proposed to replace the 

word ‘‘view’’ in the third sentence such 

that it now reads: ‘‘Where the 

Department of Veterans Affairs 

determines it appropriate, the Agency 

shall seek the advice of the Department 


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Federal Register / Vol. 89, No. 216 / Thursday, November 7, 2024 / Proposed Rules 88195 

of Justice.’’ Additional proposed 

changes to paragraph (e) include 

revisions to the second sentence where 

the phrase ‘‘two copies of such report’’ 

is proposed to be replaced with ‘‘will 

forward a copy of such report . . .’’ This 

proposed change is intended to reflect 

that the language of ‘‘two copies’’ is 

outdated as most communications and 

reports are sent electronically within 

VA. Paragraph (e) is further revised to 

change the last sentence to reflect OGC’s 

current organizational structure and 

direct Chief Counsels to send a copy of 

the report to their Deputy General 

Counsel, rather than directly to the 

General Counsel. 

The language in § 14.515, ‘‘Suits 

involving loan guaranty matters’’ is 

proposed to be revised in its entirety to 

reflect the language in 38 U.S.C. 3730(a). 

Under 38 U.S.C. 3730(a), Congress 

authorized VA to use the services of 

both VA and non-VA attorneys to 

protect VA’s interests in home loans 

arising from or related to VA’s home 

loan benefit programs. The authority is 

subject to the direction and supervision 

of the United States Attorney General 

and to such terms and conditions as the 

United States Attorney General may 

prescribe, and nothing in section 3730 

derogates from the authority of the 

Attorney General under sections 516 

and 519 of title 28 to direct and 

supervise all litigation to which the 

United States or an agency or officer of 

the United States is a party. 38 U.S.C. 

3730(a), (b). 

Proposed § 14.515(a) would 

essentially restate the statute. It would 

provide that attorneys employed by the 

Office of General Counsel may exercise 

the right of the United States to bring 

suit in any court of competent 

jurisdiction for the limited purposes 

authorized under 38 U.S.C. 3730. The 

first limited purpose would be to 

foreclose a loan made or acquired by the 

Secretary under any home loan program 

administered by the Veterans Benefits 

Administration. The second would be to 

recover possession of any property 

conveyed to the Secretary after the 

foreclosure of a home loan previously 

described. 

Proposed § 14.515(b) and (c) would 

clarify the scope of the section. 

Paragraph (b) would provide that to 

carry out the activities described in 

§ 14.515(a), the Office of General 

Counsel may acquire, or oversee the 

acquisition and performance of, legal 

services provided by attorneys other 

than those who are employees of the 

Department of Veterans Affairs. 

Paragraph (c) would provide that the 

authority to bring suit also means 

representation in bankruptcy 

proceedings, as well as other activities 

necessary to preserve the Secretary’s 

interest in a loan guaranteed, insured, or 

made under 38 U.S.C. chapter 37, or in 

a property acquired under such chapter. 

The clarifications would codify, without 

change, the longstanding policies and 

procedures VA implemented in 

coordination with, and subject to the 

supervision of, the Department of 

Justice. 

Proposed § 14.515(d) would restate 

the element of the statute requiring that 

the activities described in § 14.515 are 

subject to the direction and supervision 

of the United States Attorney General 

and to such terms and conditions as the 

United States Attorney General may 

prescribe. Proposed § 14.515(e) would 

provide that in any legal or equitable 

proceeding to which the Secretary is a 

party (including probate and bankruptcy 

proceedings) related to any home loan 

program administered by the Veterans 

Benefits Administration, original 

process and any other process prior to 

appearance that may be served on the 

Secretary must be delivered to the 

Office of General Counsel, 810 Vermont 

Ave. NW (02), Washington, DC 20420. 

Additionally, proposed § 14.515(e) 

would provide that copies of such 

process must also be served on the 

United States Attorney General and the 

United States Attorney having 

jurisdiction over that area, and that 

failure to comply with the requirements 

of proposed § 14.515(e) renders the 

service improper. The proposed change 

is necessary to reflect the Office of 

General Counsel’s restructure, help the 

public understand whom to contact 

with questions about service of process 

related to the home loan programs, and 

further ensure timely responses to 

service of process. Because proposed 

§ 14.515(e) would render 38 CFR 

36.4321 obsolete, VA proposes to 

remove § 36.4321. 

The language in § 14.516 ‘‘Escheat 

and post fund cases’’ includes minimal 

proposed edits. This section describes 

procedures to be followed when the 

Department receives assets or property 

under escheat, gift, or General Post 

Fund authorities. This section’s 

proposed amendments include the 

addition of the phrase ‘‘where the assets 

or property are not surrendered upon 

entitlement’’ after the citation ‘‘38 

U.S.C. Ch. 85’’ to further clarify when 

the Department of Veterans Affairs is 

entitled to possession of assets or 

property under the listed escheat, gifts, 

and General Post Fund provisions. 

Additionally, another amendment 

proposed throughout the section is to 

include the phrase ‘‘or entity’’ after 

‘‘person’’ to clarify that the assets or 

property described in this section may 

be in possession of an entity and not a 

singular person in every case. 

The language in § 14.517 ‘‘Cases 

affecting the Department of Veterans 

Affairs generally’’ is proposed to be 

amended to add the phrase ‘‘and related 

State and Federal agencies’’ to expand 

the entities with which the Office of 

General Counsel will liaise to ensure the 

Agency is notified of all cases involving 

the Department of Veterans Affairs. 

Additional proposed amendments 

include replacement of the word 

‘‘insure’’ with ‘‘ensure’’ to correct a 

typographical error in the existing 

regulation and replacement of the 

phrase ‘‘Such information’’ with ‘‘Cases 

affecting substantial interest of the 

Department of Veterans Affairs.’’ This 

proposed amendment is intended to 

specify the types of cases that will be 

forwarded to the General Counsel. 

The Office of General Counsel 

proposes to amend § 14.518 ‘‘Litigation 

involving beneficiaries in custody of 

Department of Veterans Affairs 

employees acting in official capacity’’ to 

reflect nomenclature changes. In 

paragraph (a), the phrase ‘‘field facility’’ 

is proposed to be replaced with 

‘‘Department of Veterans Affairs 

medical facility’’ and in paragraphs 

(b)(1) and (3), the word ‘‘hospital’’ is 

proposed to be replaced with ‘‘medical 

facility.’’ In paragraph (b)(4), the Office 

of General Counsel proposes to replace 

the words ‘‘installations’’ and 

‘‘installation’’ with the words 

‘‘facilities’’ and ‘‘facility’’ respectively. 

These terminology changes are 

proposed to reflect the updated and 

most commonly used terms for medical 

facilities within the Department. 

Paragraph (b) in § 14.518 describes 

procedures for when Department 

employees are served with a writ of 

habeas corpus involving a VA 

beneficiary. Explanatory language is 

proposed to be added to paragraph (b)(3) 

for clarity and comprehensiveness. The 

term ‘‘or other representative’’ is 

proposed to be included after the phrase 

‘‘Veteran’s attorney’’ to explain that the 

medical facility can notify 

representatives other than attorneys 

when a Veteran is to be discharged. The 

addition of the phrase ‘‘subject to 

existence of an appropriate release 

authority’’ is proposed at the end of the 

second sentence to ensure that authority 

to release the patient has been received 

prior to discharge in the context of 

involuntary confinement of a mentally 

ill patient. Additional proposed 

amendments include the addition of 

hyphens to the word ‘‘self-protection’’ 

in paragraph (a) and to the word ‘‘selfVerDate Sep<11>2014 16:26 Nov 06, 2024 Jkt 265001 PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 E:\FR\FM\07NOP1.SGM 07NOP1

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injury’’ in paragraph (b)(3) for 

grammatical reasons. 

Prosecution 

The title of 38 CFR 14.560 is proposed 

to be updated to reflect the plural of the 

word ‘‘crimes’’ so that it matches the 

name of the statute it is referencing. 

Specifically, the proposed new title will 

now read ‘‘Procedure where violation of 

penal statutes is involved including 

those offenses coming within the 

purview of the Assimilative Crimes Act 

(18 U.S.C. 13).’’ This section includes 

additional proposed nomenclature 

changes, including to correct the 

spelling of the word ‘‘warrant’’ and, in 

the third sentence, to substitute ‘‘the 

Chief Counsel’’ for ‘‘he or she.’’ 

The language in § 14.561 

‘‘Administrative action prior to 

submission’’ is proposed to be amended 

to reflect updated citations. Specifically, 

the parenthetical citation in § 14.561 is 

proposed to be replaced with ‘‘38 U.S.C. 

6103’’ to reflect the correct current 

citation. 

Federal Tort Claims 

The Office of General Counsel 

proposes multiple amendments 

throughout the ‘‘Federal Tort Claims’’ 

section of the regulations. Proposed 

amendments to § 14.600 are intended to 

remove outdated citations and language. 

This regulation provides an overview of 

the Federal Tort Claims Act and 

describes various delegations of 

authority for the settlement of any claim 

and the authority to reconsider the final 

denial of a claim. One proposed edit to 

§ 14.600 is to update the title of the 

regulation from ‘‘Federal Tort Claims 

Act—general’’ to ‘‘Federal Tort Claims 

Act generally.’’ An additional proposed 

amendment in paragraph (a) is the 

revision of the first sentence to remove 

reference to 28 U.S.C. 2402, 2411 and 

2412 as these citations are not helpful. 

Specifically, the first sentence is now 

proposed to state: ‘‘The Federal Tort 

Claims Act (28 U.S.C. 1291, 1346, 1402, 

2401(b)), and 2671 through 2680).’’ In 

paragraph (c), the phrase ‘‘and other 

necessary instruments in connection 

therewith’’ is proposed to be removed as 

it is outdated and vague language. The 

phrase ‘‘or stipulation for settlement’’ is 

proposed to replace the removed 

language to provide more explanation 

regarding the authority for settlement 

that is delegated to the individuals 

listed in this paragraph. In paragraph 

(c)(3), the phrase ‘‘General Counsel, 

Deputy General Counsel, and Chief 

Counsel, Torts Law Group’’ is proposed 

to be replaced with ‘‘Deputy Chief 

Counsels, Torts Law Group’’ to clarify 

that Torts Law Group’s Deputy Chief 

Counsels are authorized to act regarding 

claims, subject to the parameters 

described in paragraphs (c)(3)(i) through 

(iii). Additionally, the phrase ‘‘but not 

more than $500,000’’ is proposed to be 

removed from paragraph (c)(3)(i) as it is 

redundant to the language in paragraph 

(c)(3) which describes the approval 

required for awards, settlements, and 

compromises in excess of $500,000. 

The Office of General Counsel 

proposes significant amendments to 

§ 14.601 ‘‘Investigation and 

development,’’ a section which 

describes the processes for the 

submission, investigation, and 

processing of tort claims. The proposed 

amendments include new language to 

provide clearer descriptions regarding 

the processing of tort claims and the 

removal of language that exists in other 

regulations, is no longer applicable, or 

is outdated. First, the title of paragraph 

(a) is proposed to be changed to replace 

the phrase ‘‘untoward incidents’’ with 

the phrase ‘‘general tort claims’’ to 

reflect the updated language that is used 

by the Office of General Counsel to 

describe this category of tort claims. 

In paragraph (a)(1), the phrase 

‘‘Department of Veterans Affairs’’ is 

proposed to be inserted before phrase 

‘‘Government-owned vehicle’’ in the 

first sentence to specify that the 

procedures in this section relate to 

government-owned vehicles used by the 

Department. In the second sentence of 

paragraph (a)(1), additional 

nomenclature changes are proposed, 

including the replacement of the word 

‘‘said’’ with the word ‘‘the’’ so that the 

beginning of the sentence now reads ‘‘A 

copy of the report.’’ This sentence is 

proposed to be amended to clarify that 

the SF 91 and VA Form 2162 should 

initially be sent to the Director of the 

facility involved in the motor vehicle 

accident. 

Additional amendments are proposed 

for paragraph (a)(2) in § 14.601 and 

specifically, the existing paragraphs 

(a)(2)(i) and (ii) are proposed to be 

combined and streamlined to comprise 

a new single paragraph in (a)(2) which 

outlines procedures for all property 

damage or loss, including that which 

relates to patients’ personal effects. 

Proposed amendments to the first 

sentence in the newly combined 

paragraph (a)(2) include the insertion of 

the phrase ‘‘non-medical malpractice’’ 

before the term ‘‘incident’’ and 

replacement of the phrase ‘‘other than’’ 

with ‘‘including’’ prior to the phrase 

‘‘personal effects of the patient’’ in the 

new paragraph (a)(2). The phrase ‘‘to the 

facility Director or designee’’ is added to 

the end of the first sentence to clarify 

where incidents described in this 

paragraph should be reported. 

Nomenclature changes are also 

proposed to reduce extraneous 

language, including replacement of the 

phrase ‘‘due apparently or allegedly to 

the’’ with the phrase ‘‘due to alleged’’ 

and replacement of the phrase ‘‘an 

employee of the Department of Veterans 

Affairs acting within the scope of his or 

her office of employment, or damage to 

or loss of Government-owned property 

caused by other than a Department of 

Veterans Affairs employee acting within 

the scope of his or her office ’’ with ‘‘a 

VA employee acting within the scope of 

their employment will be immediately 

reported to the facility Director or 

designee’’ 

The newly edited paragraph (a)(2) 

also includes a proposed new sentence 

which states: ‘‘If a claim is filed seeking 

damages of $5,000 or less, it will be 

adjudicated by the facility.’’ This 

sentence is proposed to be included to 

reflect the same information provided in 

§ 14.600(c)(1) which was amended via 

rulemaking on October 20, 2022. To 

further clarify the parameters of the 

$5,000 settlement authority for VA 

facility Directors, this section is 

proposed to be amended to include the 

additional phrase: ‘‘If the claim seeks 

damages in excess of $5,000’’ prior to 

the phrase ‘‘the Director of the facility 

where such occurrence took place will 

promptly transmit a copy of the report.’’ 

Finally, this sentence is proposed to be 

amended to replace the phrase 

‘‘Regional Counsel who will authorize 

such additional investigation as the 

circumstance of the case may warrant’’ 

with the phrase ‘‘Office of General 

Counsel Torts Law Group for 

investigation and adjudication.’’ This 

proposed replacement is intended to 

consistently reiterate that the Torts Law 

Group manages the investigation and 

adjudication of these claims. 

Additionally, a sentence is being added 

to clarify that the Office of General 

Counsel, Torts Law Group will 

investigate and adjudicate non-medical 

malpractice claims brought against the 

Veterans Benefits Administration and 

National Cemetery Administration. As 

these proposed amendments ensure that 

all of the relevant information related to 

the investigation and development of 

these types of tort claims is described in 

the newly proposed paragraph (a)(2), the 

existing paragraphs (a)(2)(ii) and (a)(3) 

and (4) are proposed to be removed. 

The Office of General Counsel 

proposes to revise paragraph (b) of 

§ 14.601 to remove language that 

describes outdated procedures. The 

existing language regarding referral to 

the Under Secretary for Health via the 

Director, Medical-Legal Affairs and the 


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language stating that the responsible 

Regional Counsel involved and the 

General Counsel will be guided by the 

views of the Under Secretary for Health 

does not accurately describe current 

procedures for the investigation and 

development of medical malpractice 

claims. As a result, these sentences are 

proposed to be replaced with the 

following statement which concisely 

summarizes the current process for 

medical malpractice claims: ‘‘All 

medical malpractice claims will be 

referred to the Office of General 

Counsel, Torts Law Group for 

investigation and adjudication.’’ 

The procedures described in § 14.602, 

‘‘Requests for medical information’’ 

include proposed amendments as the 

information in the existing regulation 

does not accurately reflect current 

processes. Specifically, the following 

statement in paragraph (a): ‘‘Where 

there is indication that a tort claim will 

be filed, medical records or other 

information shall not be released 

without approval of the Regional 

Counsel’’ is proposed to be removed 

from this regulation as it is outdated and 

does not accurately reflect current 

procedures. The statement in paragraph 

(b) will remain and comprise the only 

language in this regulation and is 

intended to reflect that the Department 

follows the Freedom of Information Act 

(FOIA) and its implementing regulations 

in the release of documents. 

The language in § 14.603, 

‘‘Disposition of claims’’ includes 

proposed amendments. This regulation 

section generally describes that a 

claimant’s indebtedness to the 

Government will be included in a tort 

claim award. The proposed 

amendments include the removal of the 

last two sentences: ‘‘The amount of the 

indebtedness is for credit to the 

appropriation account from which the 

services were provided. The voucher 

prepared for settlement of the claim will 

specify the amount to be deposited to 

the credit of the designated account and 

the balance of the aware be paid to the 

claimant.’’ These statements are 

proposed to be removed as they include 

extraneous language that describes 

outdated procedures regarding the 

settlement of tort claims with debt 

related to unauthorized medical 

treatment. 

The Office of General Counsel 

proposes to amend § 14.604, ‘‘Filing a 

claim’’ to reflect nomenclature changes 

and to specifically describe certain 

procedures regarding the filing of 

administrative tort claims and the 

processing of tort claims immediately 

after their receipt. In the first sentence 

of paragraph (a), the phrase ‘‘an alleged’’ 

before negligent or wrongful act or 

omission is proposed to be included to 

convey that the acts or omissions at 

issue in the claim have not been fully 

adjudicated by this point in the tort 

claim process. The phrase ‘‘a Standard 

Form 95 (SF 95)’’ is proposed to replace 

the phrase ‘‘SF 95’’ to explain the 

abbreviation for this document. In the 

second sentence in paragraph (a), the 

phrase ‘‘Office of General Counsel, Torts 

Law Group’’ is proposed to replace 

‘‘Regional Counsel having jurisdiction 

of the area wherein the occurrence 

complained of took place’’ to reflect that 

after a reorganization, the Torts Law 

Group handles administrative tort 

claims for the Office of General Counsel. 

Language has also been added to this 

sentence to provide a link to a website 

with further instructions for submitting 

a claim. 

Additional nomenclature changes are 

proposed in the third and fourth 

sentence of § 14.604(a), including the 

replacement of ‘‘He or she’’ with ‘‘The 

claimant’’ and the replacement of 

‘‘Department of Veterans Affairs’’ with 

‘‘VA’’ for readability. Finally, the 

proposed amendment in the fourth 

sentence in paragraph (a) will replace 

the phrase ‘‘it will be forwarded to the 

Department of Veterans Affairs General 

Counsel, for appropriate action’’ with 

‘‘the Office of General Counsel will 

immediately transfer the claim to the 

appropriate agency in accord with 28 

CFR 14.2(b)(1).’’ This substitution is 

intended to accurately describe current 

practice when other Federal agencies 

may be involved in a claim. 

In paragraph (b) of § 14.604, the 

phrase ‘‘an executed SF 95’’ is proposed 

to be replaced with the phrase ‘‘a signed 

SF 95’’ for clarity. Additionally, the 

phrase ‘‘written notification of an 

incident’’ is proposed to be replaced 

with ‘‘detailed written statement of the 

facts and circumstances giving rise to 

the claim, including the time, place, and 

date of the accident or’’ in order to 

provide a detailed explanation to the 

previously vague phrase of 

‘‘notification.’’ This section also 

proposes to remove the final sentence 

regarding the receipt of an SF–95 as it 

is outdated and no longer describes 

current procedures. 

Several amendments are proposed 

throughout § 14.605 ‘‘Suits against 

Department of Veterans Affairs 

employees arising out of a wrongful act 

or omission or based upon medical care 

and treatment furnished in or for the 

Veterans Health Administration’’ to 

replace outdated language and 

procedures. In paragraph (a)(2)(ii), the 

phrase ‘‘property damage’’ is proposed 

to be removed because paragraph (a)(2) 

describes the applicability of 38 U.S.C. 

7316 which applies to personal injury, 

including death, and medical 

malpractice but does not apply to 

property damage. Throughout paragraph 

(b), the phrase ‘‘or to the Office of 

General Counsel, Torts Law Group’’ is 

proposed to be added to clarify that 

employees can provide a copy of all 

papers received regarding a Federal 

lawsuit to their local Chief Counsel or 

to the Torts Law Group. Additionally, 

the phrase ‘‘he or she’’ is proposed to be 

replaced with ‘‘the employee’’ in two 

places in this paragraph for grammatical 

consistency. 

Paragraphs (c) and (d) in § 14.605 are 

proposed to be amended to use the term 

‘‘immunity’’, rather than 

‘‘representation’’, ‘‘protection’’, or 

‘‘immunization’’ to clarify the 

protection of employees acting within 

the scope of their employment. 

Paragraph (c) is further amended to 

remove language that describes outdated 

procedures that are no longer followed 

when a lawsuit has been filed against a 

VA employee. The first sentence 

includes a proposed amendment to 

replace the phrase ‘‘the Regional 

Counsel having jurisdiction over the 

place where the employee works’’ with 

the phrase ‘‘Office of General Counsel, 

Torts Law Group’’ as the Torts Law 

Group is the group within the Office of 

General Counsel that conducts 

preliminary investigations when a 

lawsuit against a VA employee is filed. 

Additionally, the sentences which 

describe the submission of a 

preliminary report to the General 

Counsel, the Regional Counsel 

investigation, and the submission of the 

investigation report to the General 

Counsel and to the appropriate U.S. 

Attorney are proposed to be removed 

from this paragraph. These procedures 

are no longer followed as the Office of 

General Counsel, Torts Law Group 

manages the process by which a VA 

employee requests representation from 

the U.S. Attorney’s Office and handles 

all communications with the U.S. 

Attorney’s office. For consistency, the 

phrase ‘‘Regional Counsel’’ is proposed 

to be replaced with ‘‘Torts Law Group’’ 

throughout paragraph (c). 

In paragraph (d), the phrase ‘‘local 

Regional Counsel’’ is proposed to be 

replaced with ‘‘Office of General 

Counsel, Torts Law Group’’ and the last 

two sentences in this paragraph are 

proposed to be combined for 

nomenclature changes and readability. 

In paragraph (e), the phrase 

‘‘specifically excluded under the 

provisions of 28 U.S.C. 2680(h)’’ is 

proposed to be replaced with 

‘‘otherwise not actionable under the 


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Federal Tort Claims Act’’ for readability 

and clarity. A misspelling in paragraph 

(e) is proposed to be corrected to read 

‘‘cognizable.’’ Finally, the term 

‘‘immunization’’ is proposed to be 

replaced with ‘‘immunity’’ in both 

paragraphs (c) and (d) for grammatical 

reasons. 

Administrative Settlement of Tort 

Claims Arising in Foreign Countries 

The Office of General Counsel 

proposes amendments to §§ 14.615 

through 14.617, ‘‘Administrative 

Settlement of Tort Claims Arising in 

Foreign Countries’’ to remove or correct 

outdated or inaccurate information. The 

language in § 14.615 ‘‘General’’ provides 

general information for filing tort claims 

involving the Department that arise in 

foreign countries. One amendment is 

proposed in paragraph (a) to remove the 

word ‘‘abroad’’ from the end of the 

sentence due to redundancy. 

Significant amendments are proposed 

in § 14.616, ‘‘Form and place of filing 

claim.’’ This section outlines specific 

instructions for how claimants can 

submit a tort claim when the events 

described in the claim arose in a foreign 

country and involve the Department. 

Paragraph (a) includes a proposed 

amendment to combine the first two 

sentences and to remove the redundant 

phrase ‘‘sworn statement,’’ the outdated 

language of ‘‘submitted in duplicate’’ 

and ‘‘original copy of the claim,’’ and 

the vague phrase ‘‘at least.’’ Additional 

new language is proposed to provide 

guidance regarding the submission of a 

Standard Form 95 as the way to submit 

a claim in compliance with the 

instructions in the regulation. As a 

result of these revisions, the proposed 

new combined sentence in paragraph (a) 

will now read: ‘‘Claims arising under 38 

U.S.C. 515(b) will be submitted on a 

Standard Form 95 or prepared in the 

form of a statement sworn to or affirmed 

before an official with authority to 

administer oaths or affirmations and 

will contain the following information 

. . .’’ 

Additional nomenclature changes are 

proposed for § 14.616(a)(8) for 

readability and clarity purposes. The 

specific proposed edits include the 

removal of the word ‘‘official,’’ the 

addition of ‘‘(s)’’ to the word 

‘‘employee,’’ and the addition of the 

phrase ‘‘Department of Veterans Affairs’’ 

after United States. The paragraph 

(a)(10) is proposed to be removed to 

reflect that claimants do not need to 

indicate the law applicable to a tort 

claim when they file a claim. As a result 

of the proposed removal of paragraph 

(a)(10), paragraph (a)(9) will now 

conclude this section. 

Amendments in paragraph (b) of 

§ 14.616 include the proposed addition 

of the phrase ‘‘or submitted directly to 

the Office of General Counsel, Torts Law 

Group’’ at the end of the first sentence 

to provide an additional option for 

submission of claims as the Torts Law 

Group handles the processing and 

investigations of tort claims for the 

Department. Paragraph (c)(1) is 

proposed to be amended by replacing 

the phrase ‘‘the like will, if possible, be 

obtained from disinterested parties’’ 

with the phrase ‘‘documented evidence 

of the damages must accompany the 

claim.’’ This proposed amendment is 

intended to remove the vague phrase 

‘‘the like’’ and to clarify the specific 

documents that should be submitted for 

this type of claim. The Office of General 

Counsel also proposes to amend the 

second and third sentences of paragraph 

(c)(1) for readability and to remove 

outdated terms that reflect procedures 

related to the processing of paper copies 

of claims that are no longer utilized. 

Specifically, paragraph (c)(1) is 

proposed to be amended to replace the 

existing phrases ‘‘All evidence will be 

submitted in duplicate’’ and ‘‘Original 

evidence or certified copies shall be 

attached to the original copy of the 

claim, and simple copies shall be 

attached to the other copy of the claim’’ 

with the newly proposed sentence: ‘‘All 

evidence and certified copies must be 

attached to the original claim.’’ Finally, 

the last sentence of this section is 

proposed to be amended to replace the 

word ‘‘will’’ with the word ‘‘must’’ to 

clarify that English translations are 

required to be included with the claim 

so that there is no dispute regarding the 

language that describes the claim. 

The only proposed amendment in 

paragraph (c)(2) of § 14.616 is the 

replacement of the phrase ‘‘the like’’ 

with the phrase ‘‘any other relevant 

evidence’’ for clarity and nomenclature 

reasons. The Office of General Counsel 

also proposes to delete paragraph (c)(5) 

‘‘Damage to crops’’ as it is redundant to 

the prior paragraphs which outline 

procedures related to claims for 

property damage. 

The Office of General Counsel 

proposes to amend § 14.617 

‘‘Disposition of Claims’’ to clarify the 

requirements of administrative tort 

claims in the Philippines and in 

countries other than the Philippines. 

This section provides guidance for how 

claims in foreign countries should be 

routed when received by employees of 

the Department or other employees of 

the Federal Government. Paragraph (a) 

includes a proposed amendment to 

remove the phrases ‘‘including a 

complete investigation report and a brief 

resume of applicable law’’ and ‘‘together 

with a recommendation as to 

disposition’’ to clarify that the facility 

does not need to send an investigation 

report, a summary of applicable law, or 

a recommendation of a disposition of 

the claim. These amendments are 

proposed to more accurately reflect the 

current process and procedures which 

describe the Office of General Counsel’s 

Torts Law Group as the entity which 

prepares the investigation report, 

researches the applicable law, and 

proposes a disposition for the claim. 

The phrase ‘‘Office of General Counsel, 

Torts Law Group’’ is proposed to be 

included after the existing phrase ‘‘will 

be forwarded directly by the Director to 

the’’ to clarify the central role of the 

Torts Law Group in this process. 

Further amendments are proposed for 

paragraph (b) to include the removal of 

the phrase ‘‘including a resume of 

applicable law and a recommendation 

regarding allowance or disallowance of 

the claim’’ as this language is outdated 

and does not reflect current procedures 

or practice. As stated previously, 

current practice does not involve the 

submission of a review of applicable 

law and a recommendation regarding 

the disposition of the claim by staff at 

the relevant American Embassy or 

Consulate. Finally, this section is 

amended to include ‘‘Torts Law Group, 

Office of’’ prior to ‘‘General Counsel, 

Department of Veterans Affairs, 

Washington, DC’’ as the Torts Law 

Group is the group within the Office of 

General Counsel that coordinates 

administrative tort claims from foreign 

countries other than the Philippines. 

Claims for Damage to or Loss of 

Government Property 

The Office of General Counsel 

proposes multiple amendments to the 

section of regulations that govern claims 

for damage to or loss of government 

property. Specifically, § 14.618 

‘‘Collection action’’ includes proposed 

amendments to reflect nomenclature 

changes and other minor edits. 

Proposed amendments to paragraph (a) 

include replacement of the phrase 

‘‘Regional Counsel’’ with ‘‘Office of 

General Counsel’’ and inclusion of the 

phrase ‘‘or appropriate VA designee’’ 

before the phrase ‘‘will request payment 

in full.’’ This proposed amendment is 

intended to reflect that individuals 

other than those employed by the Office 

of General Counsel may request 

payment or other appropriate relief from 

the individual responsible for the 

damage to or loss of Government 

property. An additional proposed 

amendment includes the replacement of 

the phrases ‘‘amount of’’ and ‘‘liable 


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therefore or such person’s insurer’’ with 

new language to clarify available relief. 

Specifically, the proposed new language 

after the comma would read: ‘‘the Office 

of General Counsel or appropriate VA 

designee will request payment in full or 

other appropriate relief for the damage 

or loss from the responsible person or 

entity.’’ The proposed language is 

intended to clearly describe in plain 

terms that the Office of General Counsel 

or designee will seek reimbursement or 

other relief from the person responsible 

for damage to or loss of Government 

property. 

Paragraph (b) of § 14.618 includes 

additional proposed amendments. The 

proposed edits include the replacement 

of ‘‘Regional’’ with ‘‘Office of General’’ 

and the addition of the phrase ‘‘or 

designee’’ after Counsel to indicate 

individuals other than those in the 

Office of General Counsel may collect, 

compromise, suspend, or terminate a 

collection action. This sentence is 

further proposed to be amended to 

update outdated citations and 

specifically, replace ‘‘§ 2.6(e)(4)(ii)’’ 

with ‘‘§ 2.6(e)(4)’’ and replace ‘‘§ 1.900 

series’’ with ‘‘§ 1.900 et seq.’’ The 

second sentence is proposed to be 

amended to replace the phrase ‘‘and 

does not exceed $100,000, will be 

referred by the Regional Counsel’’ with 

the language ‘‘may be referred’’ to reflect 

that not all of these cases are 

automatically referred to the United 

States Attorney’s Office. The phrase 

‘‘U.S. attorney along with the 

information required by §§ 1.951’’ is 

proposed to be replaced with ‘‘United 

States Attorney’s Office, in accordance 

with §§ 1.950’’ to spell out the 

abbreviation for United States and to 

correct an outdated citation. Finally, the 

last sentence in paragraph (b) that 

begins with ‘‘Any claim in excess of 

$100,000’’ and the entirety of 

paragraphs (c) and (d) are proposed to 

be removed. This language is proposed 

to be removed as it is redundant with 

existing language in § 2.6 and § 14.619 

and does not reflect current practices or 

procedures. 

Claims for the Costs of Medical Care 

and Services 

This rule proposes to revise § 14.619, 

‘‘Collection Action’’ to update 

references to other offices, remove 

obsolete material and references, and 

clarify and streamline policies and 

procedures. The Federal Medical Care 

Recovery Act (‘‘FMCRA’’), 42 U.S.C. 

2651 et seq., and 38 U.S.C. 1729 

authorize the Department to recover 

from third parties the costs of medical 

care or services furnished or to be 

furnished to an individual by the 

Department or paid for or to be paid for 

on behalf of an individual by the 

Department. In the proposed rule, the 

Office of General Counsel would revise 

§ 14.619, which establishes the Office of 

General Counsel’s ability to assert a 

claim, and authorize the Office of the 

General Counsel to collect, compromise 

suspend, or terminate collection activity 

as well as to refer cases to the 

Department of Justice to protect the 

government’s interest. This rulemaking 

proposes to amend § 14.619 to clarify 

VA’s right of recovery under 42 U.S.C. 

2651 and 38 U.S.C. 1729, as well as to 

further clarify individual’s duty to 

notify and cooperate with VA, and to 

describe legal remedies to effect 

recovery. Paragraph (a) is proposed to be 

amended to include definitions of the 

terms ‘‘Responsible Official’’, ‘‘third 

party’’ and ‘‘individual’’ as well as to 

define medical care or services for 

which the Department may recover. 

Paragraph (b) is proposed to be 

amended to clarify the duty of Veterans, 

Veteran beneficiaries and those 

individuals acting on their behalf to 

furnish requested information, notify 

VA of settlements and offers of 

settlement and cooperate with 

prosecution of all claims and actions by 

the United States against third persons 

under the authority delegated by the 

Secretary to the Office of General 

Counsel. See, 38 CFR 2.6(e)(3) and (9) as 

well as the authority under 28 CFR 43.1 

and 43.2. A new paragraph (c) is 

proposed to be added to clarify assertion 

of claims on behalf of the United States, 

and the calculation of charges in 

accordance with Federal law and the 

implementing regulations cited. A new 

paragraph (d) is proposed to be added 

to clarify the authority to collect, 

compromise, settle, or waive any claim, 

and defines the information necessary 

for a request to compromise or waive a 

claim. This new paragraph (d) also 

clarifies that claims cannot be 

compromised in consideration of 

private attorneys’ fees. Finally, a new 

paragraph (e) is proposed to provide a 

non-exhaustive list of legal remedies to 

effect recovery of a claim asserted under 

this section. 

Personnel Claims 

Additional amendments are proposed 

for the regulations in the ‘‘Personnel 

Claims’’ section to reflect nomenclature 

changes and substantive updates. These 

regulations describe procedures for 

managing claims made by Department 

employees for damage to or loss of 

employees’ personal property incident 

to their employment. The language in 

§ 14.664 ‘‘Scope of authority and 

effective date’’ is proposed to be 

amended to replace the reference to 

‘‘Pub L. 88 558 (78 Stat. 767), approved 

August 31, 1964, as amended’’ with the 

updated citation of ‘‘The Military 

Personnel and Civilian Employees’ 

Claims Act (MPCECA) of 1964, 31 

U.S.C. 3721’’. The phrase ‘‘for not more 

than’’ is proposed to be replaced with 

‘‘not to exceed’’ for clarity and the 

phrase ‘‘civilian officer or’’ is proposed 

to be removed as the differentiation 

between civilian and non-civilian 

officers is not applicable to VA. This 

section is also proposed to be amended 

to replace the phrase ‘‘Deputy General 

Counsel, Assistant General Counsel 

(Professional Staff Group III), and the 

Deputy Assistant General Counsel, of 

said staff group and the Regional 

Counsel’’ with the new phrase ‘‘the 

Principal Deputy General Counsel, the 

Deputy General Counsel for Legal 

Operations, and the Chief Counsel, 

Torts Law Group.’’ This amendment is 

proposed to reflect the updated names 

of positions in the Office of General 

Counsel and to clarify where these 

claims should be investigated. 

Additionally, this proposed amendment 

is intended to reflect that OGC’s Torts 

Law Group handles MPCECA claims as 

a result of a recent reorganization. 

Similar amendments are proposed 

throughout this section to reflect that 

change, including elimination of the 

reference to ‘‘appropriate Regional 

Counsel’’ in what was 14.665(c), and 

substitution of the phrase ‘‘Torts Law 

Group’’ for ‘‘Regional Counsel having 

jurisdiction’’ in 14.666(a) and in other 

references to ‘‘Regional Counsel’’ in the 

Title and paragraphs (a) and (b) in 

14.666. 

In § 14.665 ‘‘Claims,’’ the phrase ‘‘in 

writing’’ is proposed to be removed 

from the first sentence as it is outdated. 

Additionally, the phrase ‘‘or VA Form 

4629, Claim for Reimbursement for 

Damaged or Destroyed Personal 

Property for property destroyed or 

damaged by a patient while the 

employee was engaged in the 

performance of official duties’’ is 

proposed to be added to the first 

sentence to explain that an additional 

form can be used to submit a claim 

under MPCECA. The second sentence is 

proposed to be revised to state that ‘‘The 

form will be submitted to the facility 

Director or designee of the VA facility 

where the claim originates within 2 

years after the incident that caused the 

loss or damage, or after the employee 

discovers the loss or damage.’’ These 

revisions are intended to remove an 

outdated reference to ‘‘personnel’’ and 

to remove reference to language 

regarding armed conflicts and other 


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military-related language that is not 

applicable to VA. This section includes 

further proposed revisions to remove 

reference to officer in the third sentence 

and to replace the phrases ‘‘the 

surviving spouse, children, father or 

mother or both, or brothers or sisters or 

both’’ with the phrase ‘‘the employee’s 

survivors in the following order of 

precedence: spouse, child, parent, or 

sibling’’ for clarity. As a result of this 

revision, the sentence ‘‘Claims of 

survivors shall be settled and paid in 

the order named’’ is proposed to be 

removed as it is redundant to the prior 

phrase ‘‘order of precedence.’’ 

Paragraphs (b) and (c) are proposed to 

be combined into one new paragraph 

(b), which would include multiple 

proposed revisions to explain 

responsibility for investigation and 

evaluation of the merits of these claims. 

The newly combined paragraph (b) 

includes edits to the first sentence 

which is proposed to begin with the 

following phrase: ‘‘The VA facility 

Director or designee receiving the claim 

will ascertain if such claim is 

complete.’’ The last sentence in the 

newly combined paragraph (b) starting 

with the phrase ‘‘The completed 

investigation’’ is proposed to be 

removed as it describes an outdated 

process that does not reflect current 

procedures. Finally, this section is 

proposed to be revised to update the 

citation to 38 U.S.C. 703(e) in paragraph 

(a)(4). 

Significant revisions are proposed in 

§ 14.666 to reflect that Torts Law Group 

is the OGC office which now handles or 

may be consulted regarding these 

claims. The first paragraph is revised to 

include the new language of: ‘‘Torts Law 

Group is available for consultation if 

requested and as needed by the facility’s 

human resources office.’’ The second 

sentence is proposed to be revised to 

explain when additional investigation 

by Torts Law Group may be necessary 

by including the following proposed 

additional language at the beginning of 

the second sentence: ‘‘If, after 

consultation from the investigating 

facility or with the Torts Law Group, it 

is determined by the Torts Law Group 

that the facts or amount in controversy 

requires further input or investigation 

from the Torts Law Group.’’ The 

sentence beginning with the phrase ‘‘If 

the claimant has a potential claim for 

indemnification’’ is proposed to be 

removed as the description of the 

potential claims against ‘‘other than the 

United States’’ appears to relate to 

military personnel and is not applicable 

to VA. The last sentence is proposed to 

be revised to include the phrase ‘‘Torts 

Law Group may be consulted to’’ before 

the phrase ‘‘ascertain that the claimant 

has filed a timely proper claim’’ to 

clarify that Torts Law Group’s 

involvement is not required unless 

requested by the relevant facility. 

Finally, the language in paragraph (b) 

is proposed to be removed as not all 

MPCECA claims are sent to Torts Law 

Group for review and thus, input 

regarding payments of claims is not 

needed. 

In § 14.667 ‘‘Claims payable,’’ the 

phrase ‘‘and does not exceed $40,000’’ 

is proposed to be added to the end of 

the sentence in paragraph (a)(1) to 

reflect the maximum amount that can be 

paid for an MPCECA claim per the 

statutory language in 31 U.S.C. 3721. 

The language in paragraph (a)(3) ‘‘Did 

not occur at quarters occupied within 

the 50 States or the District of Columbia 

that were not assigned to the claimant 

or otherwise provided in kind by the 

United States’’ is proposed to be 

removed as this language is applicable 

to military quarters and is not relevant 

to VA. New replacement language in 

paragraph (a)(3) is proposed to state 

‘‘The claim is substantiated by proper 

and convincing evidence’’ as this 

language is specifically mentioned in 

the current policy on MPCECA claims. 

Paragraph (a)(4) includes nomenclature 

changes for clarity and consistency 

including adding the phrase ‘‘or 

wrongful’’ before the phrase ‘‘act of the 

claimant’’ and deleting ‘‘or employee.’’ 

Finally, reference to 38 U.S.C. 703(a)(5) 

(§ 17.78 of this chapter) is proposed to 

be replaced with 38 U.S.C. 703(e) to 

reflect the accurate citation. 

Amendments are proposed for 

§ 14.668 ‘‘Disposition of claims,’’ 

including in paragraph (b)(1) to add the 

phrase ‘‘(where applicable)’’ after the 

‘‘Reimbursement in kind’’ as Torts Law 

Group is not authorized to process or 

permit ‘‘in kind’’ reimbursements. This 

paragraph is further proposed to be 

revised to replace the phrase ‘‘request 

the Director, Supply Service, Veterans 

Health Services and Research 

Administration, to procure’’ with the 

phrase ‘‘facilitate the procurement of’’ 

as the position references in the current 

regulation are outdated. Paragraph (b)(2) 

is proposed to be revised to replace 

outdated phrases and terms including 

substituting the word ‘‘payment’’ for the 

word ‘‘check,’’ the phrase ‘‘Fiscal 

office’’ for ‘‘Finance activity,’’ and the 

phrase ‘‘facility’’ for ‘‘installation.’’ 

Similarly, the phrases ‘‘on SF 1166, 

Voucher and Schedule of Payments’’ 

and ‘‘Regional Disbursing Office’’ are 

proposed to be removed from paragraph 

(b)(2) as these terms are outdated and do 

not reflect current processes. The last 

phrase of the section is proposed to read 

‘‘forwarded to the appropriate office for 

payment’’ to concisely describe this part 

of the process. 

The language in § 14.669 ‘‘Fees of 

agents or attorneys; penalty’’ is 

proposed to include significant 

revisions including a new phrase at the 

beginning of the section which states, 

‘‘Notwithstanding a contract, the 

representative of a claimant may not 

receive more than’’ to replace the prior 

redundant phrasing starting with ‘‘The 

Military Personnel and Civilian 

Employees’ Claims Act of 1964.’’ 

Additional nomenclature changes are 

proposed in this sentence for clarity and 

readability to include replacement of 

the phrase ‘‘amount paid in settlement’’ 

with the word ‘‘payment,’’ and removal 

of the phrases ‘‘each individual’’ and 

‘‘and settled.’’ Further, the phrase 

starting with ‘‘the Act shall be paid’’ is 

proposed to be replaced with the 

citation for the Act ‘‘31 U.S.C. 3721’’ 

and the phrase ‘‘rendered in connection 

with that claim’’ is proposed to be 

replaced with the phrase ‘‘related to the 

claim.’’ Finally, the last sentence is 

proposed to be replaced with the 

following sentence ‘‘A person violating 

this provision shall be fined not more 

than $1,000’’ for readability and clarity. 

Testimony of Department Personnel 

and Production of Department Records 

in Legal Proceedings 

The Office of General Counsel also 

proposes amendments to the set of 

regulations which govern the testimony 

of Department employees and 

production of Department records in 

certain legal proceedings as defined in 

the regulations. 

In § 14.801 ‘‘Applicability,’’ the 

regulation which defines who these 

procedures apply to and in which 

situations, multiple changes are 

proposed to improve readability. 

Specifically, the following changes are 

proposed: (1) in paragraph (b)(2)(i), the 

word ‘‘or’’ is replaced with ‘‘and’’; (2) in 

paragraph (b)(3), the word ‘‘personnel’s’’ 

is replaced with the word 

‘‘individual’s;’’ (3) in paragraph (c)(2), 

the phrase ‘‘in appropriate cases’’ is 

removed as it is vague and undefined 

language; and (4) in paragraph (c)(3), the 

phrase ‘‘as to them’’ is deleted in the 

parenthetical to remove extraneous and 

confusing language. 

Additional amendments are proposed 

to § 14.802 ‘‘Definitions,’’ which defines 

terms that are used throughout this 

regulation. Specifically, in paragraph 

(c), the phrase ‘‘official of the VA’’ is 

proposed to be replaced with ‘‘VA 

official’’ to reduce extraneous language. 

The proposed change to paragraph (f) 

will update the reference to ‘‘televised 


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or videotaped testimony’’ to ‘‘video or 

video recorded testimony.’’ 

Additionally, the Office of General 

Counsel proposes to include a new 

definition in paragraph (h) to define 

‘‘Designated VA Official.’’ The new 

language is proposed to state: ‘‘(h) 

Designated VA Official. VA official 

authorized to make the determinations 

provided in § 14.807. Other than for 

personnel in the Office of the Inspector 

General (OIG), the General Counsel or 

their designee is the Designated VA 

Official. For personnel in the OIG, the 

Counselor to the Inspector General or an 

attorney designated by the Counselor to 

the Inspector General, is the Designated 

VA Official authorized to make the 

determinations provided in § 14.807, 

and that official will keep the General 

Counsel informed of such 

determinations for purposes of litigation 

or claims of privilege.’’ The proposed 

addition of this definition in paragraph 

(h) is intended to ensure that the official 

authorized to make determinations 

provided in § 14.807 is specifically 

named and described. The use of this 

specific title of ‘‘Designated VA 

Official’’ is intended to promote 

uniformity and consistency throughout 

this set of regulations. 

The Office of General Counsel 

proposes to amend § 14.803 ‘‘Policy’’ for 

readability, coherence, and consistency. 

This regulation establishes the 

Department’s policy regarding requests 

for documents and testimony. That 

policy is to comply with the requests as 

authorized in accordance with these 

regulations and not otherwise inhibit 

employees’ access to the courts as 

citizens or in their private capacities or 

to deny Veterans’ access to the courts. 

Specifically, in paragraph (a), the phrase 

‘‘the determining official’’ is proposed 

to be replaced with ‘‘Designated VA 

Official’’ as this is the individual 

defined and referred to in § 14.802(h). 

This paragraph includes additional 

proposed amendments including 

modifying and moving the phrase 

‘‘testifying or producing records will 

have on the ability of the agency or VA 

personnel to perform their official 

duties’’ from the end of the sentence to 

the middle of the sentence. As a result 

of this proposed amendment, the 

sentence will now end with the phrase 

‘‘as well as in future cases generally, 

based on the factors set forth in 

§ 14.804.’’ 

The language in § 14.804, ‘‘Factors to 

consider’’ includes one proposed 

nomenclature amendment for 

consistency purposes. This regulation 

lists the specific factors that the 

Designated VA Official uses when 

determining whether to approve or deny 

a request for documents or testimony 

made under these regulations. The first 

sentence is proposed to be amended to 

replace the phrase ‘‘VA personnel 

responsible for making the decision’’ 

with ‘‘the Designated VA Official’’ for 

consistency with the rest of the 

regulations in this section. 

Additional proposed amendments are 

included in § 14.805 ‘‘Contents of a 

demand or request,’’ a regulation which 

addresses the information that should 

be included in any demand or request 

for testimony or documents sent to the 

Department under these regulations. 

Specifically, the phrase ‘‘if that is not 

feasible, in, or accompanied by’’ is 

proposed to be removed as it is 

extraneous language and the phrase ‘‘a 

summary’’ is proposed to be replaced 

with the word ‘‘summarizing.’’ This 

section is proposed to be further 

amended to insert a period after the 

phrase ‘‘legal proceedings’’ and the new 

proposed sentence after the period will 

start with the phrase ‘‘The affidavit or 

written statement shall contain.’’ These 

proposed changes are intended to 

improve readability and coherence. 

The language in § 14.807 ‘‘Procedure 

when demand or request is made’’ is 

proposed to be amended for readability, 

coherence, and nomenclature. This 

section describes the procedures that 

VA employees should follow when a 

demand or request for testimony or 

records is received and includes 

instructions for notifying leadership, the 

Designated VA Official, and the 

Department of Justice, and guidelines 

for interacting with a court of competent 

jurisdiction or other appropriate 

authority. In paragraph (a), the phrase 

‘‘is made’’ is proposed to be moved to 

before ‘‘in connection with legal 

proceedings’’ for readability. The 

second sentence proposes to replace 

‘‘responsible VA official designated in 

§ 14.807(b)’’ with ‘‘Office of General 

Counsel’’ to reflect current procedures 

that involve the Office of General 

Counsel as the central point of contact 

responsible for managing these types of 

requests and demands. 

In paragraph (b) of § 14.807, the 

phrase beginning with ‘‘In response to a 

demand or request for the production of 

records or the testimony of VA 

personnel, other than personnel in the 

Office of the Inspector General (OIG)’’ is 

proposed to be replaced with ‘‘The 

Designated VA Official shall’’ as that is 

the individual specifically designated in 

§ 14.802(h) to make the determinations 

regarding testimony provided or 

documents produced in these matters. 

The second sentence beginning with 

‘‘For personnel in the OIG’’ is proposed 

to be removed as this information is 

now addressed in the proposed 

definition for ‘‘Designated VA Official’’ 

in § 14.802(h). 

Additional changes are proposed in 

§ 14.807(f). The last sentence in 

paragraph (e) is proposed to be amended 

to begin with the phrase ‘‘However, if 

directed by the Designated VA Official.’’ 

As a result of this new language, the 

word ‘‘however’’ is proposed to be 

deleted before the phase ‘‘the affected 

VA personnel’’ to avoid redundancy. 

The word ‘‘however’’ in paragraph (f)(1) 

and the word ‘‘then’’ in paragraph (f)(2) 

are proposed to be removed for 

readability. 

The language in § 14.808 is proposed 

to be amended for nomenclature, clarity, 

and consistency purposes. This 

regulation provides procedures for the 

approval of testimony, the management 

of court orders for testimony, and the 

appropriate responses for expert or 

opinion testimony about official VA 

information, subjects, or activities, 

when such testimony was not 

previously approved. The specific 

proposed amendments include changing 

the title of § 14.808 to include the 

phrase ‘‘or fact’’ so that the new title 

would read ‘‘Expert, opinion, or fact 

testimony.’’ This amendment is 

intended to describe the contents of this 

section more accurately. In the second 

sentence in paragraph (a), the phrase 

‘‘responsible VA official designated in 

§ 14.807(b)’’ is proposed to be replaced 

with the term ‘‘Designated VA Official’’ 

as that is the individual defined in the 

proposed § 14.802(h) who authorizes 

testimony or the production of 

documents under this regulation. The 

word ‘‘however’’ is proposed to be 

moved from the middle of the last 

sentence to the beginning of the 

sentence such that the last sentence 

would start with the phrase: ‘‘However, 

if directed by.’’ 

A new paragraph (e) is proposed to be 

included in § 14.808 to address fact 

testimony and it would state: ‘‘If an 

employee is authorized to give fact 

witness testimony in a legal proceeding 

not involving the United States, the 

testimony, if otherwise proper, shall be 

limited to facts within the personal 

knowledge of the employee that are not 

classified, privileged, or protected from 

disclosure under applicable law or 

regulation. If asked to provide factual 

testimony that the employee believes 

may be classified, privileged, or 

protected from disclosure under 

applicable law or regulation, then the 

witness shall: (1) Respectfully decline to 

answer on the grounds that such 

testimony is prohibited; and (2) Request 

an opportunity to consult with the 

Designated VA Official.’’ This proposed 


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language is intended to provide more 

specific guidance regarding the scope of 

fact testimony that VA employees are 

authorized to provide and instructions 

on how to handle questions that may 

solicit fact testimony that is 

unauthorized due to an applicable law 

or regulation. 

The Office of General Counsel 

proposes to amend the language in 

§ 14.810, ‘‘Fees,’’ which provides 

guidance regarding the fees VA may 

charge when testimony is authorized 

and provided under these regulations. 

In paragraph (a), the phrase 

‘‘particularly as expert witnesses’’ is 

proposed to be removed from the first 

sentence to reduce confusion regarding 

the applicability of this section as it 

applies to all testimony and not just 

expert testimony. The third sentence is 

proposed to be amended to remove the 

extraneous phrasing of ‘‘establish a’’ and 

‘‘for providing.’’ The newly proposed 

sentence states: ‘‘Consequently, these 

are the sort of services for which VA 

may charge under 31 U.S.C. 9701.’’ 

The next sentence in § 14.810(a) is 

also proposed to be re-written to remove 

extraneous words and improve clarity 

by referencing fees associated with the 

Department’s FOIA regulation at 38 CFR 

1.561. Specifically, the existing sentence 

‘‘The responsible VA official will 

determine all fees associated with 

§§ 14.800 through 14.810, and shall 

timely notify the requester of the fees, 

particularly those which are to be paid 

in advance’’ is proposed to be replaced 

with: ‘‘Where a determination is made 

to comply with the demand, order or 

request pursuant 38 CFR 14.807(e) or 

14.808, the Designated VA Official will 

calculate fees consistent with 38 CFR 

1.561(d), (f) through (l) and shall timely 

notify the requester of the fees, 

particularly those which are to be paid 

in advance.’’ An additional new 

sentence is proposed in this paragraph 

to provide specific guidance for how 

fees should be calculated for requesters 

in the context of the FOIA and the 

Department’s corresponding regulations. 

That proposed new sentence would 

state: ‘‘For purposes of calculating fees 

all requesters under §§ 14.800 through 

14.810 will be considered Commercial 

Use Requesters as defined by 38 CFR 

1.561(c)(1).’’ 

Additional amendments are proposed 

for paragraph (b)(1) which specifically 

outlines the types of costs that may be 

included in the fees charged to the 

requester under these regulations. 

Specifically, paragraph (b)(1) is 

proposed to be amended to delete the 

phrase ‘‘in whole or in part as to expert, 

opinion or policy matters’’ as this 

language is now redundant to language 

in prior sections. More language is 

proposed to be added in this paragraph 

to clarify that fees may be assessed for 

preparing the witness for testimony. 

Specifically, the phrase ‘‘preparing and’’ 

and the phrase ‘‘for testimony’’ are 

proposed to be added so that the 

proposed new sentence now reads: 

‘‘When a request is granted under 

§ 14.808 to permit VA personnel to 

testify, the requester shall pay to the 

government a fee calculated to 

reimburse the cost of preparing and 

providing the witness for testimony.’’ 

Additional amendments are proposed 

for the lower-level paragraphs within 

paragraph (b)(1). One proposed 

amendment, in paragraph (b)(1)(i), is the 

addition of the word ‘‘order’’ after 

‘‘demand’’ to reference the potential for 

court orders for testimony which may be 

managed in accordance with these 

regulations. Paragraph (b)(1)(ii) is 

proposed to be removed in its entirety 

as its description of charges for attorney 

time expended in reviewing the demand 

or request is redundant to the 

information provided in paragraph 

(b)(1)(i). The existing language in 

paragraph (b)(1)(iii) regarding expenses 

generated by materials and equipment 

used to search for and copy responsive 

information is also proposed to be 

removed as it is redundant to the 

information provided in paragraph 

(b)(1)(i) and is also covered in the newly 

proposed language in paragraph (a) 

regarding the calculation of fees in 

accordance with § 1.561. Due to the 

proposed removal of the existing 

language in paragraphs (b)(1)(ii) and 

(iii), amended language from the 

existing paragraph (b)(1)(iv) is proposed 

to be moved to (b)(1)(ii) so that the new 

paragraph (b)(1)(ii) now reads ‘‘the cost 

of the time expended to prepare the 

witness to testify.’’ The existing 

language in paragraph (b)(1)(v) is also 

proposed to be amended to change 

sentence structure and be moved to 

paragraph (b)(1)(iii). The language in 

paragraph (b)(1)(iii) is proposed to read: 

‘‘Travel costs for VA personnel 

associated with providing testimony.’’ 

In paragraph (b)(2), the phrase 

‘‘necessary for such expert testimony’’ is 

proposed to be removed as the scope of 

this section applies to all requested 

testimony and not just expert testimony. 

Paragraph (f)(3) is proposed to be 

amended to add the phrase ‘‘in 

accordance with General Services 

Administration (GSA) policy’’ to clarify 

that GSA policy must be followed with 

regard to the rates for travel and per 

diem that will be funded by the 

requesting party. 

Finally, the phrase ‘‘responsible VA 

official’’ has been replaced with 

‘‘Designated VA Official’’ throughout 

§§ 14.805 through 14.810. In §§ 14.802, 

14.807, and 14.810, the word ‘‘the’’ is 

proposed to be deleted before ‘‘VA’’ for 

consistency. In §§ 14.800 through 

14.810, the phrase ‘‘this part’’ has been 

replaced with ‘‘§§ 14.800 through 

14.810’’ for specificity. 

Paperwork Reduction Act 

This proposed rule contains no 

provisions constituting a collection of 

information under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501– 

3521). 

Regulatory Flexibility Act 

The Secretary hereby certifies that 

this proposed 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). The 

factual basis for this certification is 

because this proposed rulemaking is 

merely internal to VA and does not 

involve any actions and/or processing 

by small entities. 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. 

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 not 

a significant regulatory action under 

Executive Order 12866, as amended by 

Executive Order 14094. The Regulatory 

Impact Analysis associated with this 

rulemaking can be found as a 


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supporting document at 

www.regulations.gov. 

Assistance Listing 

There are no Assistance Listing 

numbers and titles for the programs 

affected by this document. 

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 proposed rule will have 

no such effect on State, local, and Tribal 

governments, or on the private sector. 

List of Subjects 

38 CFR Part 14 

Administrative practice and 

procedure, Claims, Courts, Foreign 

Relations, Government employees, 

Lawyers, Legal services, Organization 

and functions (Government agencies), 

Reporting and recordkeeping 

requirements, Surety bonds, Trusts and 

trustees, Veterans. 

38 CFR Part 36 

Condominiums, Housing, Individuals 

with disabilities, Loan programs— 

housing and community development, 

Loan programs—Indians, Loan 

programs—veterans, Manufactured 

homes, Mortgage insurance, Veterans. 

Signing Authority: 

Denis McDonough, Secretary of 

Veterans Affairs, approved and signed 

this document on October 8, 2024, 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 set out in the 

preamble, the Department of Veterans 

Affairs proposes to amend 38 CFR parts 

14 and 36 as follows: 

PART 14—LEGAL SERVICES, 

GENERAL COUNSEL, AND 

MISCELLANEOUS CLAIMS 

■ 1. The authority citation for part 14 

continues to read as follows: 

Authority: 5 U.S.C. 301; 28 U.S.C. 2671– 

2680; 38 U.S.C. 501(a), 512, 515, 3730, 5502, 

5901–5905; 28 CFR part 14, appendix to part 

14, unless otherwise noted. 

■ 2. Revise and republish §§ 14.500 

through 14.502 to read as follows: 

§ 14.500 Functions and responsibilities of 

the General Counsel. 

The General Counsel is responsible to 

the Secretary for the following: 

(a) All litigation arising in, or out of, 

the activities of the Department of 

Veterans Affairs or involving any 

employee thereof in their official 

capacity. 

(b) All interpretative legal advice 

involving construction or application of 

laws, including statutes, regulations, 

and decisional as well as common law. 

(c) All legal services, advice and 

assistance required to implement any 

law administered by the Department of 

Veterans Affairs. 

(d) All delegations of authority and 

professional guidance required to meet 

these responsibilities. 

(e) Maintenance of a system of offices 

capable of providing legal advice and 

assistance to all Department of Veterans 

Affairs organizations and acting for the 

General Counsel as provided by 

Department of Veterans Affairs 

Regulations and instructions, or as 

directed by the General Counsel in 

special cases. This includes cooperation 

with U.S. Attorneys in all civil and 

criminal cases pertaining to the 

Department of Veterans Affairs and 

reporting to the U.S. Attorneys, as 

authorized, or to the General Counsel, or 

both, criminal matters coming to the 

attention of a Chief Counsel. 

(f) Other matters as assigned. 

§ 14.501 Functions and responsibilities of 

Chief Counsels. 

(a) Functions and responsibilities of 

the Chief Counsels are those set forth in 

this part and all other matters assigned 

by the General Counsel. 

(b) In any matter within the 

jurisdiction of the General Counsel, 

delegated or otherwise assigned, the 

Chief Counsel, Deputy Chief Counsels, 

and designated staff attorneys are 

authorized to conduct investigations, 

examine witnesses, take affidavits, 

administer oaths and affirmations, and 

certify copies of public or private 

documents. 

(c) The Chief Counsel is authorized to, 

and shall, under the guidance of the 

General Counsel, provide legal services, 

advice, and assistance to Department of 

Veterans Affairs organizations within 

their geographic area of responsibility 

and/or legal practice area of 

responsibility. In any area of regulatory, 

assigned, or delegated responsibility, 

the Chief Counsel may delegate to staff 

members or other Department of 

Veterans Affairs attorneys authorized to 

perform, to the extent specified, any 

legal function under the professional 

direction of the Chief Counsel. 

Conversely, the Chief Counsel may 

modify, suspend, or rescind any 

authority delegated hereunder. 

(d) The Chief Counsel is authorized to 

cooperate with affiliated organizations, 

legislative committees, and with local 

and State bar associations to the end 

that any State law deficiencies relating 

to Department of Veterans Affairs 

operations may be removed. No 

commitment as to proposed legislation 

will be made without the approval of 

the General Counsel. 

(e) In any case wherein the Chief 

Counsel is authorized to take legal 

action and payment of costs and 

necessary expenses incident thereto are 

involved, the administration requesting 

such action will pay such cost and 

expenses. 

(f) Chief Counsels whose 

responsibilities are defined by the 

geographic area served by their offices 

are ‘‘District Chief Counsels’’. The 

locations and jurisdictions of the 

District Chief Counsels can be found 

here: https://www.va.gov/OGC/ 

DistrictOffices.asp. 

§ 14.502 Requests for legal opinions from 

Central Office. 

A request for formal legal advice, 

including interpretation of law or 

regulations, shall be made only by the 

Secretary, the Deputy Secretary, an 

Under Secretary, an Assistant Secretary, 

a Deputy Assistant Secretary, or the 

official having jurisdiction over the 

particular subject matter, or by a 

subordinate acting for any such official. 

§§ 14.503 and 14.504 [Removed] 

■ 3. Remove §§ 14.503 and 14.504. 

■ 4. Revise and republish §§ 14.505 to 

read as follows: 

§ 14.505 Submissions. 

All submissions for formal legal 

advice described in § 14.502 will set 

forth the question of law underlying the 

opinion requested, together with a 

complete and accurate summary of 

relevant facts. Files, correspondence, 

and other relevant documents should be 

attached as exhibits to the submission. 

■ 5. Revise and republish § 14.507 to 

read as follows: 

§ 14.507 Opinions. 

(a) General. When requested under 

§ 14.502 or when determined necessary 

or appropriate, the General Counsel, 

another official so authorized by the 

General Counsel, or the Principal 

Deputy General Counsel when acting as 


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or performing the duties of the General 

Counsel, may issue a written legal 

opinion designated as a ‘‘precedent 

opinion,’’ a ‘‘conclusory opinion,’’ or an 

‘‘advisory opinion’’ regarding any issue 

of law affecting programs or operations 

of the Department of Veterans Affairs. 

(b) Precedent opinions. A written 

legal opinion of the General Counsel 

involving Veterans’ benefits under laws 

administered by the Department of 

Veterans Affairs which, in the judgment 

of the General Counsel or the Principal 

Deputy General Counsel acting as or for 

the General Counsel, necessitates 

regulatory change, interprets a statute or 

regulation as a matter of first 

impression, clarifies or modifies a prior 

opinion, or is otherwise of significance 

beyond the matter at issue, may be 

designated a ‘‘precedent opinion’’ for 

purposes of such benefits. The 

designated holdings in written legal 

opinions designated as precedent 

opinions under this section shall be 

considered by the Department of 

Veterans Affairs to be subject to the 

provisions of 5 U.S.C. 552(a)(1). The 

holdings in an opinion designated as a 

precedent opinion are binding on 

Department officials and employees in 

subsequent matters involving a legal 

issue decided in the precedent opinion, 

unless there has been a material change 

in a controlling statute or regulation, the 

opinion has been overruled or modified 

by a subsequent precedent opinion or 

judicial decision, or the opinion has 

been withdrawn. 

(c) Conclusive opinions. The 

designated holdings in written legal 

opinions designated as conclusive 

opinions under this section shall be 

considered by the Department of 

Veterans Affairs to be subject to the 

provisions of 5 U.S.C. 552(a)(2). The 

holdings in an opinion designated as a 

conclusive opinion are binding as to all 

Department officials and employees 

with respect to the particular matter at 

issue, unless there has been a material 

change in controlling statute or 

regulation; the opinion has been 

overruled or modified by a subsequent 

precedent opinion, applicable 

conclusive opinion, or judicial decision; 

or the opinion has been withdrawn. 

(d) Advisory opinions. An advisory 

opinion is not binding on Department 

personnel, but generally is issued to 

provide legal guidance or 

recommendations to Department 

officials. 

(e) Scope of this section. This section 

pertains only to opinions issued by the 

General Counsel or designee as 

described in paragraphs (a) through (d) 

of this section. Nothing in this section 

is intended to preclude the Office of 

General Counsel or any employees 

thereof from issuing informal legal 

opinions or providing legal guidance 

within the Department in any 

appropriate format. 

(f) Other matters. Written legal 

opinions described in paragraphs (a) 

through (d) of this section that are 

executed by the General Counsel will be 

maintained by the Office of General 

Counsel. Where such opinions involve 

Veterans’ benefits under laws 

administered by the Department of 

Veterans Affairs and pertain to a 

particular individual’s claim, such 

opinions will be filed in the individual 

claim folder in addition to being 

maintained by the Office of General 

Counsel. 

(Authority: 38 U.S.C. 501) 

■ 6. Revise and republish § 14.514 

through 14.518 to read as follows: 

§ 14.514 Suits by or against United States 

or Department of Veterans Affairs officials; 

indemnification of Department of Veterans 

Affairs employees. 

(a) Suits against United States or 

Department of Veterans Affairs officials. 

When a suit involving any activities of 

the Department of Veterans Affairs is 

filed against the United States or the 

Secretary or a suit is filed against any 

employee of the Department of Veterans 

Affairs in which is involved any official 

action of the employee, not covered by 

the provisions of §§ 14.600 through 

14.617, a copy of the complaint will be 

forwarded to the General Counsel, who 

will take necessary action to obtain the 

pertinent facts, cooperate with or 

receive the cooperation of the 

Department of Justice and, where 

indicated, advise the Chief Counsel of 

any further action required. 

(b) Counsel and representation of 

employees. The Department of Justice 

may afford counsel and representation 

to Government employees who are sued 

individually as a result of the 

performance of their official duties. A 

civil action commenced in a State court 

against an employee, as the result of an 

action under color of their office, may 

be removed to the applicable Federal 

District Court. If a suit is filed against an 

employee as the result of the 

performance of their official duties, 

where the provisions of either 28 U.S.C. 

2679 or 38 U.S.C. 7316 are not 

applicable (see § 14.610), and the 

employee desires to be represented by 

the U.S. Attorney, the Chief Counsel 

will obtain a written request to this 

effect from the employee and will also 

obtain an affidavit of the facility 

Director (or equivalent position) 

describing the incident in sufficient 

detail to enable a determination to be 

made as to whether the employee was 

in the scope of their employment at the 

time. These statements, together with a 

copy of the complaint and a summary 

of pertinent facts, will be sent to the 

General Counsel, who will transmit 

copies thereof to the Department of 

Justice for appropriate action. 

(c) Indemnification. (1) The 

Department of Veterans Affairs may 

indemnify a Department of Veterans 

Affairs employee who is personally 

named as a defendant in any civil suit 

in State or Federal court or an 

arbitration proceeding or other 

proceeding seeking damages against the 

employee personally, where either 28 

U.S.C. 2679 or 38 U.S.C. 7316 is not 

applicable, for any verdict, judgment, or 

other monetary award which is 

rendered against such employee; 

provided that: the alleged conduct 

giving rise to the verdict, judgment, or 

award was taken within the scope of 

their employment and that such 

indemnification is in the interest of the 

Department of Veterans Affairs, as 

determined by the Secretary or their 

designee. 

(2) The Department of Veterans 

Affairs may settle or compromise a 

personal damage claim against a 

Department of Veterans Affairs 

employee, in cases where the provisions 

of either 28 U.S.C. 2679 or 38 U.S.C. 

7316 are not applicable, by the payment 

of available funds, at any time; provided 

that: the alleged conduct giving rise to 

the personal damage claim was taken 

within the employee’s scope of 

employment and that such settlement or 

compromise is in the interest of the 

Department of Veterans Affairs, as 

determined by the Secretary or their 

designee. 

(3) Absent exceptional circumstances 

as determined by the Secretary or their 

designee, the Agency will not entertain 

a request either to agree to indemnify or 

to settle a personal damage claim before 

entry of an adverse verdict, judgment, or 

award. 

(4) A Department of Veterans Affairs 

employee may request indemnification 

to satisfy a verdict, judgment, or award 

entered against that employee. The 

employee shall submit a written request, 

with appropriate documentation 

including copies of the verdict, 

judgment, award, or settlement 

proposal, in a timely manner to the 

Department of Veterans Affairs General 

Counsel, who shall make a 

recommended disposition of the 

request. Where the Department of 

Veterans Affairs determines it 

appropriate, the Agency shall seek the 

advice of the Department of Justice. The 


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General Counsel shall forward the 

employee request for indemnification, 

and the accompanying documentation, 

with the General Counsel’s 

recommendation to the Secretary for 

decision. 

(5) Any payment under this section 

either to indemnify a Department of 

Veterans Affairs employee or to settle or 

compromise a personal damage claim 

shall be contingent upon the availability 

of appropriated funds of the Department 

of Veterans Affairs. 

(d) Attorney-client privilege. 

Attorneys employed by the Department 

of Veterans Affairs who participate in 

any process utilized for the purpose of 

determining whether the Agency should 

request the Department of Justice to 

provide representation to a Department 

employee sued, subpoenaed or charged 

in his individual capacity, or whether 

attorneys employed by the Department 

of Veterans Affairs should provide 

assistance in the representation of such 

a Department employee, undertake a 

full and traditional attorney-client 

relationship with the employee with 

respect to application of the attorneyclient privilege. If representation is 

authorized, Department of Veterans 

Affairs attorneys who assist in the 

representation of an employee also 

undertake a full and traditional 

attorney-client relationship with the 

employee with respect to the attorneyclient privilege. Any adverse 

information communicated by the 

client-employee to an attorney during 

the course of such attorney-client 

relationship shall not be disclosed to 

anyone, either inside or outside the 

Department of Veterans Affairs, other 

than attorneys responsible for 

representation of the employee, unless 

such disclosure is authorized by the 

employee. 

(e) Suits by the United States. In any 

instance wherein direct submission to a 

U.S. Attorney for institution of civil 

action has been authorized by the 

Department of Justice, the Chief Counsel 

will furnish the U.S. Attorney a 

complete report of the facts and 

applicable law, documentary evidence, 

names and addresses of witnesses and, 

in cases wherein Department of 

Veterans Affairs action has been taken, 

a copy of any pertinent decision 

rendered. The Chief Counsel will 

forward a copy of such report and of any 

proposed pleading to the Deputy 

General Counsel to whom the Chief 

Counsel reports and will render any 

practicable assistance requested by the 

U.S. Attorney. 

§ 14.515 Suits involving loan guaranty 

matters (where the Secretary is a party to 

the action). 

(a) Attorneys employed in the Office 

of General Counsel may exercise the 

right of the United States to bring suit 

in any court of competent jurisdiction 

to— 

(1) Foreclose a loan made or acquired 

by the Secretary under any home loan 

program administered by the Veterans 

Benefits Administration, or 

(2) Recover possession of any 

property conveyed to the Secretary after 

the foreclosure of a home loan described 

in paragraph (a)(1) of this section. 

(b) To carry out the activities 

described in paragraph (a) of this 

section, the Office of General Counsel 

may acquire, or oversee the acquisition 

and performance of, legal services 

provided by attorneys other than those 

who are employees of the Department of 

Veterans Affairs. 

(c) For the purpose of this section, the 

authority to bring suit also means 

representation in bankruptcy 

proceedings, as well as other activities 

necessary to preserve the Secretary’s 

interest in a loan guaranteed, insured, or 

made under 38 U.S.C. chapter 37, or in 

a property acquired under such chapter. 

(d) The activities described in this 

section are subject to the direction and 

supervision of the United States 

Attorney General and to such terms and 

conditions as the United States Attorney 

General may prescribe. 

(e) In any legal or equitable 

proceeding to which the Secretary is a 

party (including probate and bankruptcy 

proceedings) related to any home loan 

program administered by the Veterans 

Benefits Administration, original 

process and any other process prior to 

appearance that may be served on the 

Secretary must be delivered to the 

Office of General Counsel, 810 Vermont 

Ave. NW (02), Washington, DC 20420. 

Copies of such process must also be 

served on the United States Attorney 

General and the United States Attorney 

having jurisdiction over that area. 

Failure to comply with the requirements 

of this paragraph (e) renders the service 

improper. 

(Authority: 38 U.S.C. 3730) 

§ 14.516 Escheat and post fund cases. 

In any case in which the Department 

of Veterans Affairs is entitled to 

possession of assets or property under 

the escheat provisions of 38 U.S.C. 

5502(e), the gifts provisions of 38 U.S.C. 

chapter 83 or the General Post Fund 

provisions of 38 U.S.C. chapter 85, 

where the assets or property are not 

surrendered upon entitlement, the Chief 

Counsel will endeavor to obtain 

possession of such assets or property in 

any manner appropriate under local 

procedure and practice, other than 

litigation. This procedure would 

include exploratory inquiry of the 

person or entity having custody or 

possession of the assets or property for 

the purpose of determining whether the 

person or entity would be willing to 

turn over the property to the 

Department of Veterans Affairs without 

litigation. If unsuccessful in this effort, 

a complete report will be submitted by 

the Chief Counsel to the Deputy General 

Counsel to whom the Chief Counsel 

reports so that appropriate action may 

be taken to obtain the assistance of the 

Department of Justice in the matter. 

§ 14.517 Cases affecting the Department of 

Veterans Affairs generally. 

District Chief Counsels will establish 

and maintain such close liaison with the 

State and Federal courts and related 

State and Federal agencies as to ensure 

that notice will be afforded the 

Department of Veterans Affairs on all 

cases affecting the Department of 

Veterans Affairs. Cases affecting 

substantial interest of the Department of 

Veterans Affairs will be forwarded to 

the Deputy General Counsel to whom 

the Chief Counsel Reports promptly in 

every case. 

§ 14.518 Litigation involving beneficiaries 

in custody of Department of Veterans 

Affairs employees acting in official 

capacity. 

(a) Service of process generally. An 

employee, at a Department of Veterans 

Affairs medical facility, served with a 

writ of habeas corpus involving a 

beneficiary of the Department of 

Veterans Affairs in the employee’s 

custody will immediately notify the 

District Chief Counsel of the region in 

addition to taking such steps as in their 

judgment are necessary for selfprotection. 

(b) Habeas corpus writs. (1) If a 

Director of a Department of Veterans 

Affairs medical facility concerned 

advises that, according, to current 

medical opinion, hospitalization is 

necessary for the Veteran’s safety or the 

safety of others, the District Chief 

Counsel will vigorously oppose the writ 

at the trial court level. If the writ is 

granted, no further action will be taken 

unless so instructed by the General 

Counsel. 

(2) If the medical opinion is that 

hospitalization is not required for the 

Veteran’s safety or the safety of others 

but continued treatment is clearly 

indicated in the Veteran’s interest, the 

District Chief Counsel will assure that 


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the court issuing the writ is so informed 

and will abide by the court’s decision. 

(3) If the medical opinion is that there 

is no danger of self-injury to the Veteran 

or others and the need for continued 

treatment is not clearly demonstrated, 

the District Chief Counsel will advise 

the Director of the medical facility 

concerned that the Veteran should be 

released and will notify the Veteran’s 

attorney or other representative of the 

planned discharge, subject to existence 

of an appropriate release authority. 

These cases will be handled informally 

to the extent practicable. 

(4) Involuntary confinement of 

mentally ill patients in Department of 

Veterans Affairs facilities is predicated 

upon the law of the State in which the 

facility is located. In the event the writ 

is filed in Federal Court, the District 

Chief Counsel will cooperate with the 

U.S. Attorney to the end that the case is 

removed to the appropriate State court. 

■ 7. Revise and republish § 14.560 to 

read as follows: 

§ 14.560 Procedure where violation of 

penal statutes is involved including those 

offenses coming within the purview of the 

Assimilative Crimes Act. 

The Department of Justice, or the U.S. 

Attorneys, are charged with the duty 

and responsibility of interpreting and 

enforcing criminal statutes, and the final 

determination as to whether the 

evidence in any case is sufficient to 

warrant prosecution is a matter solely 

for their determination. If the 

Department of Justice or U.S. Attorney 

decides to initiate action, the Chief 

Counsel will cooperate as may be 

requested. The Chief Counsel will 

promptly bring to the attention of the 

Deputy General Counsel to whom the 

Chief Counsel Reports any case wherein 

the Chief Counsel is of the opinion that 

criminal or civil action should be 

initiated notwithstanding a decision by 

the U.S. Attorney not to bring such 

action; any case where action has been 

inordinately delayed; and any case 

which would cause significant publicity 

or notoriety. 

(Authority: 38 U.S.C. 501) 

■ 8. Revise and republish § 14.562 to 

read as follows: 

§ 14.562 Collections or adjustments. 

When it is determined that a 

submission is to be made to the U.S. 

Attorney, no demand for payment or 

adjustment will be made without the 

advice of the U.S. Attorney. However, if, 

before or after submission, the potential 

defendant or other person tenders 

payment of the liability to the United 

States, payment will be accepted if the 

U.S. Attorney has no objection. If the 

U.S. Attorney determines that 

prosecution is not indicated, or when 

prosecution has ended, the file will be 

returned to the appropriate office with 

a report as to the action taken. 

■ 9. Revise and republish §§ 14.600 

through 14.605 to read as follows: 

§ 14.600 Federal Tort Claims Act generally. 

(a) Federal Tort Claims Act— 

overview. The Federal Tort Claims Act 

(28 U.S.C. 1291, 1346, 1402, 2401(b), 

and 2671 through 2680) prescribes a 

uniform procedure for handling of 

claims against the United States, for 

money only, on account of damage to or 

loss of property, or on account of 

personal injury or death, caused by the 

negligent or wrongful act or omission of 

a Government employee while acting 

within the scope of their office or 

employment, under circumstances 

where the United States, if a private 

person, would be liable in accordance 

with the law of the place where the act 

or omission occurred. 

(b) Applicable regulations. The 

regulations issued by the Department of 

Justice at 28 CFR part 14 are applicable 

to claims asserted under the Federal 

Tort Claims Act, including such claims 

that are filed with VA. The regulations 

in §§ 14.600 through 14.605 supplement 

the regulations at 28 CFR part 14. 

(c) Delegations of authority 

concerning claims. Subject to the 

limitations in 28 CFR 14.6(c) through 

(e), authority to consider, ascertain, 

adjust, determine, compromise, and 

settle claims asserted under the Federal 

Tort Claims Act (including the authority 

to execute an appropriate voucher or 

stipulation for settlement) is delegated 

as follows: 

(1) To the Under Secretary for Health, 

the Deputy Under Secretary for Health, 

Veterans Integrated Service Network 

(VISN) Directors, and VA Medical 

Facility Directors; with respect to any 

non-medical malpractice claim for 

$5,000 or less that arises out of the 

operations of the Veterans Health 

Administration. 

(2) To the General Counsel, Principal 

Deputy General Counsel, Deputy 

General Counsel for Legal Operations, 

and Chief Counsel, Torts Law Group or 

those authorized to act for them with 

respect to any claim; provided that any 

award, compromise, or settlement in 

excess of $500,000 shall be effected only 

with the prior written approval of the 

Attorney General or their designee; 

provided further that whenever a 

settlement is effected in an amount in 

excess of $200,000 a memorandum fully 

explaining the basis for the action taken 

shall be sent to the Department of 

Justice. 

(3) To the Deputy Chief Counsels, 

Torts Law Group or those authorized to 

act for them with respect to any claim, 

provided that: 

(i) Any award, compromise, or 

settlement in excess of $300,000 shall be 

effected only with the prior written 

approval of the General Counsel, 

Principal Deputy General Counsel, 

Deputy General Counsel for Legal 

Operations, or Chief Counsel, Torts Law 

Group; provided further that whenever 

a settlement is effected in an amount in 

excess of $200,000, a memorandum 

fully explaining the basis for the action 

taken shall be sent to the Department of 

Justice; and 

(ii) Any award where, for any reason, 

the compromise of a particular claim, as 

a practical matter, will, or may control 

the disposition of a related claim in 

which the amount to be paid exceeds 

$300,000 shall be effected only with the 

prior written approval of the General 

Counsel, Principal Deputy General 

Counsel, Deputy General Counsel for 

Legal Operations, or Chief Counsel, 

Torts Law Group; and 

(iii) Any award, compromise, or 

settlement in excess of $500,000 shall be 

effected only with the prior written 

approval of the General Counsel, 

Principal Deputy General Counsel, 

Deputy General Counsel for Legal 

Operations, or Chief Counsel, Torts Law 

Group; and with the prior written 

approval of the Attorney General or 

their designee. 

(d) Delegations of authority to 

reconsider final denial of a claim. 

Subject to the limitations in 28 CFR 

14.6(c) through (e), authority under 28 

CFR 14.9 to reconsider final denials of 

claims under the Federal Tort Claims 

Act is delegated as follows: 

(1) To the Torts Law Group, with 

respect to any claim for $5,000 or less 

that arises out of the operations of the 

Veterans Health Administration. 

(2) To the General Counsel, Principal 

Deputy General Counsel, Deputy 

General Counsel for Legal Operations, 

and Chief Counsel, Torts Law Group 

with respect to any claim; provided that 

any award, compromise, or settlement 

in excess of $500,000 shall be effected 

only with the prior written approval of 

the Attorney General or their designee; 

provided further that whenever a 

settlement is effected in an amount in 

excess of $200,000, a memorandum 

fully explaining the basis for the action 

taken shall be sent to the Department of 

Justice. 

(Authority: 28 U.S.C. 1291, 1346, 1402, 2401, 

2402, 2671–80; 38 U.S.C. 512, 515; 28 CFR 

part 14, appendix to part 14) 


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§ 14.601 Investigation and development. 

(a) Development of general tort 

claims—(1) A report of any collision 

involving a Department of Veterans 

Affairs Government-owned vehicle 

which results in property damage or 

personal injury or death will be made by 

the operator of the Government vehicle 

immediately following the accident, on 

SF 91, Operator’s Report of Motor 

Vehicle Accident. A copy of the report, 

accompanied by an executed copy of 

VA Form 2162, Report of Accident, will 

be promptly submitted to the Director of 

the facility involved. Forms required by 

other agencies will continue to be used 

in addition to VA Form 2162. 

(2) Any non-medical malpractice 

incident resulting in damage to, or loss 

of, property, including personal effects 

of a patient in a Department of Veterans 

Affairs facility, or in personal injury or 

death, due to alleged negligent or 

wrongful act or omission of a VA 

employee acting within the scope of 

their employment, will be immediately 

reported to the facility Director or 

designee. If a claim is filed seeking 

damages of $5,000 or less, it will be 

adjudicated by the facility. If the claim 

seeks damages in excess of $5,000, the 

Director of the facility where such 

occurrence took place will promptly 

transmit a copy of the report to the 

Office of General Counsel, Torts Law 

Group for investigation and 

adjudication. Non-medical malpractice 

claims brought against the Veterans 

Benefits Administration (VBA) or the 

National Cemetery Administration 

(NCA) will also be referred to the Office 

of General Counsel, Torts Law Group, 

for investigation and adjudication. 

(b) Development of medical 

malpractice claims. All medical 

malpractice claims will be referred to 

the Office of General Counsel, Torts Law 

Group for investigation and 

adjudication. 

(Authority: 28 U.S.C. 2671–2680; 38 U.S.C. 

512, 515; 28 CFR part 14, appendix to part 

14) 

§ 14.602 Requests for medical information. 

Request for medical records, 

documents, reports, or other 

information shall be handled in 

accordance with the provisions of 38 

CFR 1.511(a)(2). 

§ 14.603 Disposition of claims. 

Setoff for cost of unauthorized 

medical treatment. In any tort claim 

administratively settled or compromised 

where the claimant owes the 

Department of Veterans Affairs for 

unauthorized medical treatment, there 

will be included in the tort claim award 

the amount of the claimant’s 

indebtedness to the Government. 

§ 14.604 Filing a claim. 

(a) Each person who inquires as to the 

procedure for filing a claim against the 

United States, predicated on an alleged 

negligent or wrongful act or omission of 

an employee of the Department of 

Veterans Affairs acting within the scope 

of their employment, will be furnished 

a copy of a Standard Form 95 (SF 95), 

Claim for Damage, Injury, or Death. The 

claimant will be advised to submit the 

executed claim directly to the Office of 

General Counsel, Torts Law Group using 

the instructions located here: https://

www.va.gov/OGC/FTCA.asp. The 

claimant will also be advised to submit 

the information prescribed by 28 CFR 

14.4 to the extent applicable. If a claim 

is presented to VA which involves the 

actions of employees or officers of other 

agencies, the Office of General Counsel 

will immediately transfer the claim to 

the appropriate agency in accord with 

28 CFR 14.2(b)(1). 

(b) A claim shall be deemed to have 

been presented when the Department of 

Veterans Affairs receives from a 

claimant, or their duly authorized agent 

or legal representative, a signed SF 95, 

or other detailed written statement of 

the facts and circumstances giving rise 

to the claim, including the time, place, 

and date of the accident or incident, 

together with a claim for money 

damages, in a sum certain, for damage 

to or loss of property or personal injury 

or death. 

(c) A claim presented in compliance 

with paragraphs (a) and (b) of this 

section may be amended by the 

claimant at any time prior to final 

Department of Veterans Affairs action or 

prior to the exercise of the claimant’s 

option under 28 U.S.C. 2675(a). 

Amendments shall be submitted in 

writing and signed by the claimant or 

their duly authorized agent or legal 

representative. Upon the timely filing of 

an amendment to a pending claim, the 

Department of Veterans Affairs shall 

have 6 months in which to make a final 

disposition of the claim as amended and 

the claimant’s option under 28 U.S.C. 

2675(a) shall not accrue until 6 months 

after the filing of the amendment. 

(Authority: 28 U.S.C. 1346(b)(1), 2401(b), 

2671–2680; 38 U.S.C. 512, 515; 28 CFR part 

14, appendix to part 14) 

§ 14.605 Suits against Department of 

Veterans Affairs employees arising out of a 

wrongful act or omission or based upon 

medical care and treatment furnished in or 

for the Veterans Health Administration. 

(a)(1) Section 2679 of title 28 of the 

U.S. Code., provides that no suit will lie 

against a Federal employee, or the 

employee’s estate, for damage to 

property, personal injury, or death 

resulting from their wrongful act or 

omission while acting within the scope 

of their office or employment with the 

Federal Government. An action against 

the United States under 28 U.S.C. 2671– 

2680 is the exclusive remedy under 

these circumstances. 

(2) Section 7316 of title 38 of the U.S. 

Code, provides that: 

(i) Where there is remedy against the 

United States under 28 U.S.C. 2671– 

2680; or 

(ii) Where proceedings for 

compensation or other benefits from the 

United States are provided by law, and 

the availability of such benefits 

precludes a remedy under 28 U.S.C. 

2671–2680 (as is the case, for example, 

in the Federal Employees’ 

Compensation Act, 5 U.S.C. 8101, et 

seq.), such recourse is the exclusive 

remedy for personal injury or death 

allegedly occurring as a result of 

malpractice or negligence committed by 

a physician, dentist, nurse, physician’s 

assistant, dentist’s assistant, pharmacist 

or paramedical (for example, medical 

and dental technicians, nursing 

assistants, and therapists), or other 

supporting personnel, while furnishing 

medical care and treatment in the 

exercise of duties in or for the Veterans 

Health Administration. Accordingly, a 

malpractice or negligence suit for 

personal injury or death will not lie 

against such personnel under the 

circumstances set forth in this 

paragraph (a)(2)(ii). 

(b) The Department of Justice will 

defend any civil action or proceeding 

brought in any court against persons 

referred to in paragraph (a)(1) or (2) of 

this section under the circumstances set 

forth therein. Accordingly, when a suit 

is filed against any employee of the 

Department of Veterans Affairs as a 

result of a wrongful act or omission 

arising out of employment with the 

Government, or as a result of furnishing 

medical or dental care and treatment in 

or for the Veterans Health 

Administration, the employee shall 

immediately forward a copy of all 

papers served on them to the District 

Chief Counsel having jurisdiction over 

the area in which the employee works 

or to the Office of General Counsel, 

Torts Law Group. The employee will 

also promptly forward to the 

appropriate District Chief Counsel or the 

Office of General Counsel, Torts Law 

Group, a signed statement indicating 

whether the employee desires the 

Department of Justice to protect their 

interests as provided for by law. Even 

though there may not have been service, 


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if an employee learns that a suit arising 

from either of the above-described 

circumstances has been filed against 

them, the employee shall immediately 

so advise the appropriate District Chief 

Counsel or the Office of General 

Counsel, Torts Law Group, provide a 

brief description of the facts involved, 

and state whether the employee desires 

Federal intervention. 

(c) Upon receipt of notice that suit has 

been filed against an employee of the 

Department of Veterans Affairs who is 

entitled to immunity under 28 U.S.C. 

2679 or 38 U.S.C. 7316, the Office of 

General Counsel, Torts Law Group, will 

conduct a preliminary investigation, 

which will include an affidavit by the 

employee’s supervisor as to whether the 

defendant-employee was acting in the 

scope of their employment at the time 

of the incident, and a request from the 

defendant-employee for representation. 

The affidavit will contain a factual 

description of the employee’s duties and 

responsibilities at the time of the 

incident and should describe the 

incident in question. Upon receipt of 

such information, the Torts Law Group 

will make a preliminary determination 

as to whether such suit comes within 

the provisions of either 28 U.S.C. 2679 

or 38 U.S.C. 7316. The Torts Law Group 

will refer the matter to the appropriate 

U.S. Attorney with a recommendation 

as to whether the employee is eligible 

for immunity under 28 U.S.C. 2679 or 

38 U.S.C. 7316. The U.S. Attorney will 

decide whether the Department of 

Veterans Affairs employee is eligible for 

the immunity. The General Counsel, 

through the Torts Law Group, will keep 

the employee advised of the action 

being taken concerning the suit. In the 

event that the U.S. Attorney or the 

Department of Justice determines that 

the employee is not eligible for 

immunity pursuant to one of the 

aforementioned provisions, the General 

Counsel’s office, through the Torts Law 

Group, will advise the employee and 

will call to their attention the 

discretionary conditional 

indemnification provisions of 38 U.S.C 

7316(e). 

(d) Where a civil action is commenced 

in a State court against a Department of 

Veterans Affairs employee, and the 

matter is within the purview of either 28 

U.S.C. 2679, or 38 U.S.C. 7316, the 

Department of Justice will be asked to 

remove such suit to the appropriate 

Federal District Court before trial, where 

it will be deemed an action against the 

United States. The defendant employee 

will be dismissed from the suit. 

After such removal, the United States 

has available all defenses to which it 

would have been entitled if the action 

had originally been commenced against 

the United States in the proper Federal 

District Court. Should a Federal District 

Court determine that the Department of 

Veterans Affairs employee whose acts or 

omissions gave rise to the suit was not 

acting within the scope of their office or 

employment, and therefore not eligible 

for immunity as provided for in the 

aforementioned section, the case will be 

remanded to the State court from which 

it was removed, the employee will be 

reinstated as the defendant, and the 

United States will be dismissed from the 

suit. Where the employee has been 

reinstated as the defendant under such 

circumstances, in order to protect any 

rights which they may have under 38 

U.S.C. 7316(e), they shall immediately 

notify the Office of General Counsel, 

Torts Law Group, which will call the 

employee’s attention to the 

discretionary conditional 

indemnification provisions of section 

7316(e). 

(e) Under the authority of 38 U.S.C. 

7316(e), the Secretary of Veterans 

Affairs may pay for monetary damages 

sustained by or assessed against an 

individual (or their estate) described in 

paragraph (a)(2) of this section, as the 

result of any suit instituted against such 

individual which is not cognizable 

under the provisions of 28 U.S.C. 2671– 

2680 because the individual was 

assigned to a foreign country, the said 

individual was detailed to a State or 

political division thereof, or the cause of 

action was otherwise not actionable 

under the Federal Tort Claims Act; 

Provided, That the amount of damages 

sustained is reasonable when compared 

with similar cases, litigated or settled, 

and the United States was given a 

reasonable opportunity to defend such 

individual and to participate in 

settlement negotiations. 

(Authority: 28 U.S.C 2671–2680; 38 U.S.C. 

512, 515, 7316; 28 CFR part 14, appendix to 

part 14) 

■ 10. Revise and republish §§ 14.615 

through 14.619 to read as follows: 

§ 14.615 General. 

(a) Authority. Section 515(b) of title 

38 of the U.S. Code., provides that the 

Secretary of Veterans Affairs may pay 

tort claims, in the manner authorized in 

the first paragraph of 28 U.S.C. 2672, 

when such claims arise in foreign 

countries in connection with 

Department of Veterans Affairs 

operations. 

(b) Action by claimant. Claims for 

property loss or damage may be filed by 

the owner of the property or their duly 

authorized agent or legal representative. 

If the property was insured and the 

insurer is subrogated, in whole or in 

part, and if both the owner and the 

insurer desire to file a claim for their 

respective losses they should join in one 

claim. Claims for personal injury may be 

filed by the injured person or their agent 

or legal representative. Claims for death 

may be filed by the personal 

representative of the decedent or any 

other legally qualified person. When 

filed by an agent or legal representative, 

the claim must show the title or 

capacity of the person representing the 

claimant and be accompanied by 

evidence of the appointment of such 

person as agent, legal representative, 

executor/executrix, administrator/ 

administratrix, guardian, or other 

fiduciary. 

(c) Time for filing. A claim may not 

be allowed under 38 U.S.C. 515(b) 

unless it is presented to the Secretary or 

their designee within 2 years after the 

claim accrues. 

(Authority: 28 U.S.C 2671–2680; 38 U.S.C. 

512, 515, 7316; 28 CFR part 14, appendix to 

part 14) 

§ 14.616 Form and place of filing claim. 

(a) Form of claim. Claims arising 

under 38 U.S.C. 515(b) will be 

submitted on a Standard Form 95 or 

prepared in the form of a statement 

sworn to or affirmed before an official 

with authority to administer oaths or 

affirmations and will contain the 

following information: 

(1) The name and address of claimant; 

(2) The amount claimed for injury or 

death, and for property loss or damage; 

(3) If property was lost or damaged, 

the amount paid or payable by the 

insurer together with the name of the 

insurer; 

(4) A detailed statement of the facts 

and circumstances giving rise to the 

claim, including the time, place, and 

date of the accident or incident; 

(5) If property was involved, a 

description of the property and the 

nature and extent of the damage and the 

cost of repair or replacement based 

upon at least two impartial estimates; 

(6) If personal injury was involved, 

the nature of the injury, the cost of 

medical and/or hospital services, and 

time and income lost due to the injury; 

(7) If death is involved, the names and 

ages of claimants and their relationship 

to decedent; 

(8) The name and position of the 

employee(s) of the United States 

Department of Veterans Affairs allegedly 

responsible for the accident or injury, or 

loss or damage of property; and 

(9) The names and addresses of any 

witnesses to accident or incident. 

(b) Place of filing claim. Claims 

arising in the Philippines under 38 


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U.S.C. 515(b) will be filed with the 

Director, Department of Veterans Affairs 

Regional Office, Manila, Republic of the 

Philippines or submitted directly to the 

Office of General Counsel, Torts Law 

Group using the instructions located 

here: https://www.va.gov/OGC/ 

FTCA.asp. Claims arising in other 

foreign countries will be filed with the 

American Embassy or Consulate nearest 

the place where the incident giving rise 

to the claim took place. 

(c) Evidence to be submitted by 

claimant—(1) General. The amount 

claimed on account of damage to or loss 

of property or on account of personal 

injury or death shall, so far as possible, 

be substantiated by competent evidence. 

Supporting statements, estimates and 

documented evidence of the damages 

must accompany the claim. All 

evidence and certified copies must be 

attached to the original claim. All 

documents in other than the English 

language must be accompanied by 

English translations. 

(2) Personal injury or death. In 

support of claims for personal injury or 

death, the claimant will submit, as may 

be appropriate, itemized bills for 

medical, hospital, or burial expenses 

actually incurred; a statement from the 

claimant’s or decedent’s employer as to 

time and income lost from work; and a 

written report by the attending 

physician with respect to the nature and 

extent of the injury, the nature and 

extent of treatment, the degree of 

disability, the period of hospitalization 

or incapacitation, and the prognosis as 

to future treatment, hospitalization and 

any other relevant evidence. 

(3) Damage to personal property. In 

support of claims for damage to 

personal property which has been 

repaired, the claimant will submit an 

itemized receipt, or, if not repaired, 

itemized estimates of the cost of repairs 

by two reliable parties who specialize in 

such work. If the property is not 

economically repairable, the claimant 

will submit corroborative statements of 

two reliable, qualified persons with 

respect to cost, age of the property and 

salvage value. 

(4) Damage to real property. In 

support of claims for damage to land, 

trees, buildings, fences, or other 

improvements to real property, the 

claimant will submit an itemized receipt 

if repairs have been made, or, if repairs 

have not been made, itemized estimates 

of the cost of repairs by two reliable 

persons who specialize in such work. If 

the property is not economically 

repairable, the claimant will submit 

corroborative statements of two reliable, 

qualified persons with respect to the 

value of the improvements both before 

and after the accident or incident and 

the cost of replacements. 

(Approved by the Office of Management 

and Budget under control number 2900– 

0437) 

§ 14.617 Disposition of claims. 

(a) Disposition of claims arising in 

Philippines. All claims arising under 38 

U.S.C. 515(b) in the Philippines, will be 

forwarded directly by the Director to the 

Office of General Counsel, Torts Law 

Group. 

(b) Disposition of claims arising in 

foreign countries other than the 

Philippines. When a claim is received in 

an American Embassy or Consulate, the 

Embassy or Consulate receiving such 

claim shall make such investigation as 

may be necessary or appropriate for a 

determination of the validity of the 

claim and thereafter shall forward the 

claim, together with all pertinent 

material, through regular channels of 

the Department of State to the Torts Law 

Group, Office of General Counsel, 

Department of Veterans Affairs, 

Washington, DC. 

(c) Payment of claims. Upon 

determining that there is liability on the 

part of the United States under 38 

U.S.C. 515(b), the General Counsel, or 

such other personnel as may be 

designated by the Secretary, will take 

the necessary action to effect payment. 

§ 14.618 Collection action. 

(a) In a case where the Office of 

General Counsel determines that 

damage to or loss of Government 

property under the jurisdiction of the 

Department of Veterans Affairs resulted 

from the negligence or other legal wrong 

of a person other than an employee of 

the United States, while acting within 

the scope of their employment, the 

Office of General Counsel or appropriate 

VA designee will request payment in 

full or other appropriate relief for the 

damage or loss from the responsible 

person or entity. 

(b) The Office of General Counsel or 

VA designee may collect, compromise, 

suspend, or terminate collection action 

on any such claim as is authorized 

under 38 CFR 2.6(e)(4), in conformity 

with the standards in 38 CFR 1.900 et 

seq. Any such claim that has not been 

collected in full and which has not been 

compromised, suspended, or terminated 

may be referred to the appropriate 

United States Attorney’s Office, in 

accordance with 38 CFR 1.950 through 

1.953. 

§ 14.619 Collection action. 

(a) The Federal Medical Care 

Recovery Act (‘‘FMCRA’’), 42 U.S.C. 

2651, et seq., and 38 U.S.C. 1729 

authorize the Department to recover 

from third parties the costs of medical 

care or services furnished or to be 

furnished to an individual by the 

Department, or paid for or to be paid for 

on behalf of an individual by the 

Department. 

(1) The Chief Counsel, Revenue Law 

Group, or their designee (‘‘Responsible 

Official’’) shall have the responsibility 

for taking action with respect to the 

rights described in this paragraph (a). 

(2) For purposes of this section, the 

term ‘‘third party’’ refers to those from 

whom the United States may recover 

pursuant to the FMCRA and 38 U.S.C. 

1729. 

(3) For purposes of this section, the 

term ‘‘individual’’ refers to the person to 

whom the Department furnished, or will 

furnish, medical care or services or on 

whose behalf the Department paid, or 

will pay for, medical care or services. 

The term also includes those acting on 

behalf of such person. 

(4) For purposes of this section, 

medical care, or services for which the 

Department may recover shall include 

medical care or services provided, paid 

for, to be provided, or to be paid for 

resulting from aggravation or 

exacerbation of a service-connected 

disability. 

(b) Where the circumstances of the 

medical care or services may support a 

claim under the authorities described in 

paragraph (a) of this section, the 

individual is obligated to notify the 

Department of the circumstances 

underlying the medical care or services 

and to cooperate with the Department’s 

efforts to pursue recovery incident to 

that treatment. 

(1) The initial duty to notify is 

satisfied by fully completing a billing 

request and submitting the same to the 

Responsible Official. The form and 

instructions for completing and 

submitting this request are available at 

the Department’s revenue recovery 

website. This constitutes the minimum 

information necessary for the 

Department to investigate a potential 

claim. 

(2) There is a continuing duty to 

notify the Department of all significant 

developments regarding any claim or 

demand made by the individual against 

a third party, including but not limited 

to: 

(i) The presentation of any formal or 

informal claim or demand against the 

third party; 

(ii) The commencement and progress 

of any legal proceedings against the 

third party; 


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(iii) Any settlement or offer of 

settlement with the third party and the 

details of any such settlement or offer; 

and 

(iv) Such other information as 

requested by the Responsible Official. 

(3) The individual must cooperate 

with the Department’s recovery efforts. 

(i) The amounts specified in any 

claim asserted under this section 

constitute an asset of the United States. 

Accordingly, any assertion by the 

individual of the costs of medical care 

or services furnished or paid for by the 

Department is authorized only for the 

sole use and benefit of the United 

States, and the individual must ensure 

that the Department’s interests are 

protected. Individuals who refuse to 

assert the Department’s interests are not 

authorized to present the Department’s 

treatment or billing information in 

support of any claim of the individual 

and must promptly notify the 

Responsible Official in writing of the 

refusal. Absent timely notice of refusal, 

assertion of the Department’s interests is 

assumed and will be relied upon by the 

Department. 

(ii) The Department’s claim can be 

resolved only as described in this 

section. The Department’s rights cannot 

be extinguished by an individual’s 

settlement and release with the third 

party. Accordingly, individuals must 

contact the Responsible Official prior to 

the distribution of any settlement 

proceeds to confirm the amount of the 

Department’s claim and to discuss the 

resolution of that claim. 

(iii) Third parties must, when 

demanded by the Responsible Official, 

pay the Department separately and 

directly in satisfaction of the 

Department’s interest and must do so 

contemporaneously with distribution to 

other stakeholders, including attorneys 

and beneficiaries. 

(iv) Should any portion of the 

Department’s claim reasonably be 

disputed, the Responsible Official must 

be notified, in writing, of the dispute 

and the reasons for it within 30 days of 

receipt of funds from the third party. 

Amounts not in dispute must be 

remitted to the Department, and the 

amounts in dispute must be held in 

trust, pending resolution of the dispute. 

(4) Failure to meet the notification 

and cooperation duties associated with 

the Department’s recovery interests may 

result in referral to the Department of 

Justice, as described in paragraph (e) of 

this section. 

(c) Where the Responsible Official 

determines that a claim to recover the 

costs of medical care or services is 

appropriate under any of the authorities 

described in paragraph (a) of this 

section, the Responsible Official will 

assert a claim against the third party, or 

the third party’s insurer, to recover such 

costs. 

(1) The claim shall consist of a Notice 

of Claim describing the legal basis of the 

claim, together with an explanation of 

the charges. This serves as notice that 

proceeds from the individual’s claim/ 

case must not be distributed without 

first satisfying the Department’s claim. 

(2) The charges sought shall be 

calculated and communicated pursuant 

to Federal law. 

(i) The Department is not obligated to 

provide itemized billing. 

(ii) The Department is not obligated to 

provide billing in any particular format. 

(iii) The costs of medical care or 

services furnished by the Department 

shall be calculated according to the 

framework of 38 CFR 17.101. 

(iv) The costs of medical care or 

services provided by non-Federal 

providers at Departmental expense shall 

be calculated consistent with the actual 

amounts that the Department paid for 

such care. 

(v) The costs of medical care or 

services provided by the Department on 

a humanitarian basis pursuant to 38 

U.S.C. 1784 shall be calculated 

according to the framework of 38 CFR 

17.102. 

(vi) No other authorities that purport 

to value the medical care or services for 

which the Department may recover, to 

include State fee schedules, are 

applicable, absent express agreement to 

that effect from the Responsible Official. 

(3) The individual or other 

stakeholder must forward requests for 

medical records directly to the Release 

of Information Office of the treating 

facility. The provision of medical 

records is not a prerequisite to the 

Department’s recovery. 

(d) Subject to the limitations of this 

paragraph (d), the Responsible Official 

is authorized to resolve a claim 

pursuant to this section. 

(1) The Responsible Official may 

collect, compromise, settle, or waive 

any claim asserted pursuant to this 

section, as is authorized under 38 CFR 

2.6(e)(3) and (9). However, the 

Responsible Official is not authorized to 

resolve a claim arising under the 

FMCRA without approval of the 

Department of Justice, other than by 

payment in full, if such claim is in 

excess of the amount specified by the 

Department of Justice. 

(2) The Responsible Official may 

suspend or terminate collection activity 

on any claim asserted pursuant to this 

section, as is authorized by 38 CFR 

2.6(e)(4)(iii). However, the Responsible 

Official is not authorized to suspend or 

terminate collection activity on such a 

claim arising under the FMCRA without 

approval of the Department of Justice if 

such claim is in excess of the amount 

specified by the Department of Justice. 

(3) Requests for compromises and 

waivers should be in writing and should 

include: 

(i) Copies of all settlement 

agreements, judgments, or offers of 

resolution, 

reflecting the amount of settlement; 

(ii) Amounts received from all 

sources; 

(iii) A confirmation from the 

individual that no additional assets are 

available to satisfy the claim; 

(iv) A draft distribution plan, which 

accounts for all amounts received under 

the settlement; 

(v) The amount(s), if any, by which 

any non-Departmental stakeholders 

have agreed to reduce their claims 

against the settlement; 

(vi) The amount of the proposed 

distribution to the Department; and 

(vii) Any additional information that 

indicates a need for reasonableness and 

moderation in the exercise of the 

Department’s rights. 

(4) Pursuant to 5 U.S.C. 3106, the 

Responsible Official shall not 

compromise a claim in consideration of 

private attorney fees. 

(e) The Department may pursue all 

available legal remedies to effect 

recovery of a claim asserted under this 

section. These remedies include, but are 

not limited to the following. 

(1) The Responsible Official may refer 

any such claim to the appropriate 

United States Attorney’s Office for 

enforcement action. 

(i) The United States may, at its 

discretion, file suit in an appropriate 

United States District Court, intervene 

in a State court action, or pursue 

removal of a State action to an 

appropriate United States District Court. 

(ii) The amounts specified in any 

claim asserted under this section 

constitute an asset of the United States. 

Consequently, in the event that a party 

other than the United States comes into 

possession of any funds conveyed in 

contemplation of such a claim, such 

funds may not be distributed other than 

as authorized by the Responsible 

Official. Distribution of funds without 

such authorization may be referred to 

the Department of Justice for action 

under 31 U.S.C. 3729(a)(1)(D), which 

may result in treble damages and civil 

penalties against the party undertaking 

such unauthorized distribution. 

(iii) Unless expressly authorized, 

claims asserted under this section 

cannot be satisfied other than by 

payment in full. Unauthorized payment 


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of less than the amounts asserted may 

be referred to the Department of Justice 

for action under 31 U.S.C. 3729(a)(1)(G), 

which may result in treble damages and 

civil penalties. 

(2) The Responsible Official may refer 

any such claim to the Department of 

Treasury for debt collection. 

(Authority: 38 U.S.C. 1729; 42 U.S.C. 2651 et 

seq.; 28 CFR 43.2) 

■ 11. Revise and republish §§ 14.664 

through 14.669 to read as follows: 

§ 14.664 Scope of authority and effective 

date. 

The Military Personnel and Civilian 

Employees’ Claims Act (MPCECA) of 

1964, 31 U.S.C. 3721, authorizes the 

Secretary or the Secretary’s designee to 

settle and pay a claim not to exceed 

$40,000 made by an employee of the 

Department of Veterans Affairs for 

damage to, or loss of personal property 

incident to such person’s service. 

Authority is delegated by 38 CFR 

2.6(e)(5) to the General Counsel, the 

Principal Deputy General Counsel, the 

Deputy General Counsel for Legal 

Operations, and the Chief Counsel, 

Torts Law Group, and those acting for 

them to settle and pay such claims on 

behalf of the Secretary, and such 

settlement shall be final and conclusive. 

(Authority: 31 U.S.C. 3721(b)) 

§ 14.665 Claims. 

(a) The claim must be presented on 

VA Form 4760, Employee’s Claim for 

Reimbursement for Personal Property 

Damaged or Lost Incident to 

Employment or VA Form 4629, Claim 

for Reimbursement for Damaged or 

Destroyed Personal Property for 

property destroyed or damaged by a 

patient while the employee was engaged 

in the performance of official duties. 

The form will be submitted to the 

facility Director or designee of the VA 

facility where the claim originates 

within 2 years after the incident that 

caused the loss or damage or within 2 

years after the employee discovers the 

loss or damage. The claim must be 

executed and certified by the employee 

suffering the loss or damage, or in the 

event of their death, by the employee’s 

survivors in the following order of 

precedence: Spouse, Child, Parent, or 

Sibling. All claims must contain the 

following: 

(1) The date, time, and place the loss 

or damage occurred and the 

circumstances surrounding such loss or 

damage, together with the supporting 

statements of any witnesses who can 

verify such facts. 

(2) In the event of damage, the date of 

acquisition, original cost, condition 

before damage, and at least two 

estimates of the cost of repair or 

replacement. In the event of loss, the 

date of acquisition, the original cost, the 

condition, and an estimate of the 

reasonable market value of the article or 

articles. 

(3) A statement as to any claim or 

potential claim they may have for 

indemnification of the loss or damage 

against other than the United States and 

whether they will assign such to the 

United States and cooperate in its 

prosecution. Where such claim or 

potential claim is against a carrier or 

insurer, evidence that a timely claim has 

been properly made. Where a recovery 

from the carrier or their insurer has been 

obtained or offered, such information 

shall be included. 

(4) In cases involving damage or 

destruction of personal property by 

patients or domiciliary members, a 

statement as to whether a claim was 

filed pursuant to 38 U.S.C. 703(e) and 

whether such claim has been finally 

denied. 

(b) The VA facility Director or 

designee receiving the claim will 

ascertain if such claim is complete in all 

respects and conduct such investigation 

as is necessary to establish all facts 

required to properly evaluate the claim 

both as to merit and the reasonable 

amount payable for the loss or damage 

or will refer the claim to the Office of 

General Counsel Torts Law Group for 

investigation if the claim seeks damages 

in excess of $5,000. Where it is 

indicated that the claimant may have a 

potential claim against other than the 

United States, the employee designated 

will secure a suitable assignment of all 

right and title to such claim, to the 

extent the United States makes 

reimbursement, and the agreement of 

the claimant to furnish such evidence as 

may be necessary to pursue such claim. 

If the potential claim is against a carrier 

or insurer, the employee designated will 

ascertain that the claimant has filed a 

timely proper claim and procure 

evidence thereof. The employee 

designated will also include information 

concerning any offer of settlement the 

carrier may have made. 

§ 14.666 Torts Law Group responsibility. 

Torts Law Group is available for 

consultation if requested and as needed 

by the facility’s human resources office. 

If, after consultation from the 

investigating facility or with the Torts 

Law Group, it is determined by the 

Torts Law Group that the facts or 

amount in controversy requires further 

input or investigation from the Torts 

Law Group, the Torts Law Group will 

conduct such additional investigation as 

it deems necessary to establish all facts 

required. If such potential claim is 

against a carrier or insurer, the Torts 

Law Group may be consulted to help to 

ascertain that the claimant has filed a 

timely proper claim against the carrier 

or insurer and review same for legal 

sufficiency. 

§ 14.667 Claims payable. 

(a) No claim shall be paid unless 

timely filed in proper form as provided 

in § 14.665 and the preponderance of 

the evidence establishes that the loss or 

damage: 

(1) Actually occurred and the amount 

claimed is reasonable and does not 

exceed $40,000; 

(2) Was incident to the employee’s 

service and their possession of the 

property was reasonable, useful, or 

proper under the circumstances; 

(3) The claim is substantiated by 

proper and convincing evidence; 

(4) Was not caused wholly or in part 

by the negligent or wrongful act of the 

claimant or the claimant’s agent, and 

that the claimant has no right to 

indemnification for the loss or damage 

from other than the United States, 

except to the extent that the claimant 

assigns such right to the United States 

and agrees to furnish evidence required 

to enable the United States to enforce 

such right. In the event there is a right 

to recovery for the loss or damage from 

a carrier or insurer the claimant will be 

required to file a timely claim for such 

recovery before consideration of the 

claim against the United States. 

(b) No claim for the cost of repair or 

replacement of personal property of 

employees damaged or destroyed by 

patients or domiciliary members while 

such employees are engaged in the 

performance of official duties shall be 

entertained under §§ 14.664 through 

14.667, unless claim filed pursuant to 

38 U.S.C. 703(e) has been finally denied 

for the reason that such claim did not 

meet the criteria established by that law. 

§ 14.668 Disposition of claims. 

(a) Disallowed claims. Claimants will 

be promptly notified of the 

disallowance of a claim and the reasons 

therefor. 

(b) Allowed claims—(1) 

Reimbursement in kind (where 

applicable). Where a claim is allowed 

and it is determined to be advantageous 

to the Government, reimbursement will 

be made in kind. The official 

authorizing settlement will facilitate the 

procurement of the necessary article or 

articles and deliver same to the 

claimant. 

(2) Reimbursement by payment. The 

official authorizing settlement will 


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forward allowed claims, other than 

those requiring reimbursement in kind, 

to the Fiscal office at the Department of 

Veterans Affairs facility where the claim 

arose. That activity will audit the claim, 

which if found proper for payment, will 

be scheduled and forwarded to the 

appropriate office for payment. 

§ 14.669 Fees of agents or attorneys; 

penalty. 

Notwithstanding a contract, the 

representative of a claimant may not 

receive more than 10 percent of the 

payment of a claim submitted under the 

authority of 31 U.S.C. 3721 for services 

related to the claim. A person violating 

this provision shall be fined not more 

than $1,000. 

■ 12. Revise and republish §§ 14.800 

through 14.810 to read as follows: 

§ 14.800 Purpose. 

Sections 14.800 through 14.810 

establish policy, assign responsibilities, 

and prescribe procedures with respect 

to: 

(a) The production or disclosure of 

official information or records of the 

Department of Veterans Affairs (VA); 

and 

(b) The testimony of present or former 

VA personnel relating to any official 

information acquired by any individual 

as part of that individual’s performance 

of official duties, or by virtue of that 

individual’s official status, in Federal, 

state, or other legal proceedings covered 

by §§ 14.800 through 14.810. 

(Authority: 38 U.S.C. 501(a) and (b); 5 U.S.C. 

301) 

§ 14.801 Applicability. 

(a) Sections 14.800 through 14.810 

apply to: 

(1) Contractors and subcontractors 

which undertake a VA activity or 

maintain VA records when the contract 

covering their actions provides that 

§§ 14.800 through 14.810 apply, as well 

as the personnel of contractors and 

subcontractors. 

(2) All components of the Department, 

including Canteen Service, the Office of 

Inspector General, and all staff offices, 

services and administrations, and their 

personnel. 

(b) Sections 14.800 through 14.810 do 

not apply to: 

(1) Testimony or records provided in 

accordance with Office of Personnel 

Management regulations implementing 

5 U.S.C. 6322. 

(2)(i) Legal proceedings in which the 

Department of Veterans Affairs, the 

Secretary of Veterans Affairs, or the 

United States is a party, is represented, 

and has a direct and substantial interest; 

or 

(ii) Legal proceedings in which an 

individual or entity is a party for whom 

the United States is providing 

representation. 

(3) Legal proceedings in which VA 

personnel are to testify while in leave or 

off-duty status as to matters which are 

purely personal and that do not arise 

out of, or relate in any way to, the 

individual’s official duties or to the 

functions and activities of VA or the 

United States. 

(4) Official comments on matters in 

legal proceedings, where appropriate. 

(5) Disclosures, in the absence of a 

request or demand, of information or 

records by VA components, particularly 

the Office of Inspector General, to 

Federal, state, local and foreign law 

enforcement or regulatory agencies. 

(6) Congressional demands or requests 

for testimony or documents. 

(7) Requests for, and release of, 

records under the Freedom of 

Information Act, 5 U.S.C. 552, and the 

Privacy Act, 5 U.S.C. 552a. 

(8) Disclosures in child support and 

alimony proceedings under the 

authority of 42 U.S.C. 659 and 

regulations promulgated by the Office of 

Personnel Management implementing 

that section. 

(9) Legal proceedings before or 

involving VA concerning a claim or 

dispute as to the rights of a beneficiary 

or obligations or liabilities of the United 

States under any law or program 

administered by the Department of 

Veterans Affairs. 

(10) Requests by a Veteran or that 

Veteran’s representative for access to the 

Veteran’s records for use in an 

administrative or judicial claim for 

benefits administered by the 

Department of Veterans Affairs. 

(11) Foreign legal proceedings 

covered by Department of State 

procedures governing the production of 

records or witnesses in response to 

requests or demands in connection with 

foreign legal proceedings. 

(c) Sections 14.800 through 14.810 are 

not intended to, and do not: 

(1) Waive the sovereign immunity of 

the United States; 

(2) Infringe upon or displace the 

responsibilities committed to the 

Department of Justice in conducting 

litigation on behalf of the United States; 

(3) Remove the need for the 

Department to comply with any 

applicable legal confidentiality 

provisions, such as the Privacy Act, 

before having the legal authority to 

make any disclosure or providing any 

testimony under §§ 14.800 through 

14.810. (Sections 14.800 through 14.810 

do not give VA disclosure authority 

under applicable confidentiality 

statutes; absent disclosure authority 

granted by those statutes, information, 

and records subject to those laws may 

not be disclosed, or testimony given 

under the procedures established in 

§§ 14.800 through 14.810); or 

(4) Preclude treating any written 

request for agency records that is not in 

the nature of a request or demand 

related to legal proceedings as a request 

under the Freedom of Information or 

Privacy Acts. 

(Authority: 38 U.S.C. 501(a) and (b); 5 U.S.C. 

301) 

§ 14.802 Definitions. 

(a) Demand. Order, subpoena, or other 

demand of a court of competent 

jurisdiction, or other specific authority 

or under color of law, for the 

production, disclosure, or release of VA 

information or records or for the 

appearance and testimony of VA 

personnel as witnesses. 

(b) Request. Any informal request, by 

whatever method, from a party, a party’s 

attorney, or any person acting on behalf 

of a party, for the production of VA 

records or information or for the 

testimony of VA personnel as witnesses, 

which has not been ordered by a court 

of competent jurisdiction or other 

specific authority or under color of law. 

(c) VA personnel. All present and 

former officers and employees of VA 

and any other individuals who are or 

have been appointed by, or subject to 

the supervision, jurisdiction, or control 

of the Secretary of Veterans Affairs or 

another VA official, including 

nonappropriated fund activity 

employees, and other individuals hired 

through contractual agreements by or on 

behalf of VA, or performing services 

under such agreements for VA, such as 

consultants, contractors, subcontractors, 

their employees and personnel. This 

phrase also includes individuals who 

served or are serving on any advisory 

committee or in any advisory capacity, 

whether formal or informal. 

(d) Legal proceedings. All pretrial, 

trial, and post-trial stages of all existing 

or reasonably anticipated judicial or 

administrative actions, hearings, 

investigations, or similar proceedings 

before courts, commissions, boards, or 

other tribunals, foreign or domestic that 

are not specified in § 14.801(b). This 

phrase includes depositions and other 

pretrial proceedings, as well as 

responses to formal or informal requests 

by attorneys or others in situations 

involving legal proceedings not 

specified in § 14.801(b). 

(e) Official VA information. All 

information of any kind, however 

stored, that is in the custody and control 

of VA or was acquired by VA personnel 


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as part of their official duties or because 

of their official status. 

(f) Testimony. Testimony in any form, 

including personal appearances in 

court, depositions, recorded interviews, 

telephonic, video or video recorded 

testimony or any response during 

discovery or similar proceedings, which 

response would involve more than the 

production of records. 

(g) VA records. All documents which 

are records of the Department of 

Veterans Affairs for purposes of the 

Freedom of Information Act, 5 U.S.C. 

552, regardless of storage media, 

including the term ‘‘record’’ as defined 

in 44 U.S.C. 3301, and implementing 

regulations. 

(h) Designated VA Official. VA official 

authorized to make the determinations 

provided in § 14.807. Other than for 

personnel in the Office of the Inspector 

General (OIG), the General Counsel or 

the General Counsel’s designee is the 

Designated VA Official. For personnel 

in the OIG, the Counselor to the 

Inspector General or an attorney 

designated by the Counselor to the 

Inspector General, is the Designated VA 

Official authorized to make the 

determinations provided in § 14.807, 

and that official will keep the General 

Counsel informed of such 

determinations for purposes of litigation 

or claims of privilege. 

(Authority: 38 U.S.C. 501(a) and (b); 5 U.S.C. 

301) 

§ 14.803 Policy. 

(a) VA personnel may provide 

testimony or produce VA records in 

legal proceedings covered by §§ 14.800 

through 14.810 only as authorized in 

accordance with §§ 14.800 through 

14.810. In determining whether to 

authorize testimony or the production of 

records, the Designated VA Official will 

consider the effect testifying or 

producing records will have on the 

ability of the agency or VA personnel to 

perform their official duties in this case, 

as well as in future cases generally, 

based on the factors set forth in 

§ 14.804. 

(b) The Department of Veterans 

Affairs does not seek to deny its 

employees access to the courts as 

citizens, or in the employees’ private 

capacities on off-duty time. 

(c) The Department of Veterans 

Affairs does not seek to deny the 

Nation’s Veterans access to the courts. 

(Authority: 38 U.S.C. 501(a) and (b); 5 U.S.C. 

301) 

§ 14.804 Factors to consider. 

In deciding whether to authorize the 

disclosure of VA records or information 

or the testimony of VA personnel, the 

Designated VA Official should consider 

the following types of factors: 

(a) The need to avoid spending the 

time and money of the United States for 

private purposes and to conserve the 

time of VA personnel for conducting 

their official duties concerning servicing 

the Nation’s Veteran population; 

(b) How the testimony or production 

of records would assist VA in 

performing its statutory duties; 

(c) Whether the disclosure of the 

records or presentation of testimony is 

necessary to prevent the perpetration of 

fraud or other injustice in the matter in 

question; 

(d) Whether the demand or request is 

unduly burdensome or otherwise 

inappropriate under the applicable 

court or administrative rules; 

(e) Whether the testimony or 

production of records, including release 

in camera, is appropriate or necessary 

under the rules of procedure governing 

the case or matter in which the demand 

or request arose, or under the relevant 

substantive law concerning privilege; 

(f) Whether the testimony or 

production of records would violate a 

statute, executive order, regulation, or 

directive. (Where the production of a 

record or testimony as to the content of 

a record or about information contained 

in a record would violate a 

confidentiality statute’s prohibition 

against disclosure, disclosure will not 

be made. Examples of such statutes are 

the Privacy Act, 5 U.S.C. 552a, and 38 

U.S.C. 5701, 5705 and 7332; 

(g) Whether the testimony or 

production of records, except when in 

camera and necessary to assert a claim 

of privilege, would reveal information 

properly classified pursuant to 

applicable statutes or Executive orders; 

(h) Whether the testimony would 

interfere with ongoing law enforcement 

proceedings, compromise constitutional 

rights, compromise national security 

interests, hamper VA or private health 

care research activities, reveal sensitive 

patient or beneficiary information, 

interfere with patient care, disclose 

trade secrets or similarly confidential 

commercial or financial information, or 

otherwise be inappropriate under the 

circumstances; 

(i) Whether such release or testimony 

reasonably could be expected to result 

in the appearance of VA or the Federal 

Government favoring one litigant over 

another; 

(j) Whether such release or testimony 

reasonably could be expected to result 

in the appearance of VA or the Federal 

Government endorsing or supporting a 

position advocated by a party to the 

proceeding; 

(k) The need to prevent the public’s 

possible misconstruction of variances 

between personal opinions of VA 

personnel and VA or Federal policy; 

(l) The need to minimize VA’s 

possible involvement in issues 

unrelated to its mission; 

(m) Whether the demand or request is 

within the authority of the party making 

it; 

(n) Whether the demand or request is 

sufficiently specific to be answered; and 

(o) Other matters or concerns 

presented for consideration in making 

the decision. 

(Authority: 38 U.S.C. 501(a) and (b); 5 U.S.C. 

301) 

§ 14.805 Contents of a demand or request. 

The request or demand for testimony 

or production of documents shall set 

forth in, or be accompanied by, an 

affidavit or a written statement by the 

party seeking the testimony or records, 

or by the party’s attorney, summarizing 

of the nature and relevance of the 

testimony or records sought in the legal 

proceedings. The affidavit or written 

statement shall contain sufficient 

information for the Designated VA 

Official to determine whether VA 

personnel should be allowed to testify 

or records should be produced. Where 

the materials are considered insufficient 

to make the determination as described 

in § 14.807, the Designated VA Official 

may ask the requester to provide 

additional information. 

(Authority: 38 U.S.C. 501(a) and (b); 5 U.S.C. 

301) 

§ 14.806 Scope of testimony or 

production. 

VA personnel shall not, in response to 

a request or demand for testimony or 

production of records in legal 

proceedings, comment or testify or 

produce records without the prior 

written approval of the Designated VA 

Official. VA personnel may only testify 

concerning or comment upon official 

VA information, subjects, or activities, 

or produce records, that were specified 

in writing, submitted to and properly 

approved by the Designated VA Official. 

(Authority: 38 U.S.C. 501(a) and (b); 5 U.S.C. 

301) 

§ 14.807 Procedure when demand or 

request is made. 

(a) VA personnel upon whom a 

demand or request for testimony or the 

production of records is made in 

connection with legal proceedings as 

defined in § 14.802(d) shall notify the 

head of their field station, or if in 

Central Office, the head of the 

component for which they work. The 

field station or Central Office 


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component shall notify the Office of 

General Counsel. 

(b) The Designated VA Official shall 

determine whether VA personnel may 

be interviewed, contacted, or used as 

witnesses, including used as expert 

witnesses, and whether VA records may 

be produced; and what, if any, 

conditions will be imposed upon such 

interview, contact, testimony, or 

production of records. 

(c) In appropriate cases, the 

Designated VA Official shall promptly 

notify the Department of Justice of the 

demand or request. After consultation 

and coordination with the Department 

of Justice, as required, and after any 

necessary consultation with VA 

component which employs or employed 

VA personnel whose testimony is 

sought or which is responsible for the 

maintenance of the records sought, the 

Designated VA Official shall determine 

in writing whether the individual is 

required to comply with the demand or 

request and shall notify the requester or 

the court or other authority of the 

determination reached where the 

determination is that VA will not 

comply fully with the request or 

demand. The Designated VA Official 

shall give notice of the decision to other 

persons as circumstances may warrant. 

Oral approval may be granted, and a 

record of such approval made and 

retained in accordance with the 

procedures in § 14.807(f) concerning 

oral requests or demands. 

(d) If, after VA personnel have 

received a request or demand in a legal 

proceeding and have notified the 

Designated VA Official in accordance 

with this section, a response to the 

request or demand is required before 

instructions from the Designated VA 

Official are received, the Designated VA 

Official shall furnish the requester or 

the court or other authority with a copy 

of §§ 14.800 through 14.810 and any 

other relevant documentation, inform 

the requester or the court or other 

authority that the request or demand is 

being reviewed, and seek a stay of the 

request or demand pending a final 

determination by the Designated VA 

Official. 

(e) If a court of competent jurisdiction 

or other appropriate authority declines 

to stay the effect of the demand or 

request in response to action taken 

pursuant to paragraph (d) of this 

section, or if such court or other 

authority orders that the demand or 

request be complied with 

notwithstanding the final decision of 

the Designated VA Official, VA 

personnel upon whom the demand or 

request was made shall notify the 

Designated VA Official of such ruling or 

order. If the Designated VA Official 

determines that no further legal review 

of or challenge to the ruling or order 

will be sought, the affected VA 

personnel shall comply with the 

demand, order, or request. However, if 

directed by the Designated VA Official, 

after consultation with the appropriate 

United States Attorney’s office, the 

affected VA personnel shall respectfully 

decline to comply with the demand, 

request, or order. See United States ex 

rel. Touhy v. Ragen, 340 U.S. 462 

(1951). 

(f) Normally, written demands or 

requests allowing reasonable lead time 

for evaluation and processing are 

required. However, in emergency 

situations where response time is 

limited and a written demand or request 

is impractical, the following procedures 

should be followed: 

(1) The Designated VA Official has the 

authority to waive the requirement of a 

written demand or request and may 

expedite a response in the event of an 

emergency under conditions which 

could not be anticipated in the course 

of proper planning or which 

demonstrate a good faith attempt to 

comply with §§ 14.800 through 14.810. 

Determinations on oral demands or 

requests should be reserved for 

instances where insistence on 

compliance with the requirements of a 

proper written request would result in 

the effective denial of the request and 

cause an injustice in the outcome of the 

legal proceeding for which the 

testimony or records are sought. No 

requester has a right to make an oral 

demand or request and receive a 

determination. Whether to permit such 

an exceptional procedure is a decision 

within the sole discretion of the 

Designated VA Official. 

(2) If the Designated VA Official 

concludes that the demand or request, 

or any portion of it, should be granted 

(after considering the factors listed in 

§ 14.804), the Designated VA Official 

will orally advise the requester of the 

determination in accordance with the 

procedures provided in paragraph (c) of 

this section, including any limitations 

on such testimony or production of 

records, and seek a written confirmation 

of the oral demand or request. The 

Designated VA Official will make a 

written record of the determination 

made concerning the oral demand or 

request, including the grant or denial, 

the circumstances requiring the 

procedure, and the conditions to which 

the requester agreed. 

(Authority: 38 U.S.C. 501(a) and (b); 5 U.S.C. 

301) 

§ 14.808 Expert, opinion, or fact testimony. 

(a) VA personnel shall not provide, 

with or without compensation, opinion 

or expert testimony in any legal 

proceedings concerning official VA 

information, subjects, or activities, 

except on behalf of the United States or 

a party represented by the United States 

Department of Justice. Upon a showing 

by the requester or court or other 

appropriate authority that, in light of the 

factors listed in § 14.804, there are 

exceptional circumstances and that the 

anticipated testimony will not be 

adverse to the interests of the 

Department of Veterans Affairs or to the 

United States, the Designated VA 

Official may, in writing, grant special 

authorization for VA personnel to 

appear and testify. If, despite the final 

determination of the Designated VA 

Official, a court of competent 

jurisdiction or other appropriate 

authority, orders the expert or opinion 

testimony of VA personnel, the 

personnel shall notify the Designated 

VA Official of such order. If the 

Designated VA Official determines that 

no further legal review of or challenge 

to the order will be sought, the affected 

VA personnel shall comply with the 

order. However, if directed by the 

Designated VA Official after 

consultation with the appropriate 

United States Attorney’s office, the 

affected VA personnel shall respectfully 

decline to comply with the demand, 

request, or order. See United States ex 

rel. Touhy v. Ragen, 340 U.S. 462 

(1951). 

(b)(1) If, while testifying in any legal 

proceeding, VA personnel are asked for 

expert or opinion testimony concerning 

official VA information, subjects or 

activities, which testimony has not been 

approved in advance in accordance with 

§§ 14.800 through 14.810, the witness 

shall: 

(i) Respectfully decline to answer on 

the grounds that such expert or opinion 

testimony is forbidden by §§ 14.800 

through 14.810; 

(ii) Request an opportunity to consult 

with the Designated VA Official 

mentioned in § 14.807(b) before giving 

such testimony; 

(iii) Explain that, upon such 

consultation, approval for such 

testimony may be provided; and 

(iv) Explain that providing such 

testimony absent such approval may 

expose the individual to criminal 

liability under 18 U.S.C. 201–209 and to 

disciplinary or other adverse personnel 

action. 

(2) If the witness is then ordered by 

the body conducting the proceeding to 

provide expert or opinion testimony 

concerning official VA information, 


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subjects, or activities without the 

opportunity to consult with the 

appropriate VA official, the witness 

respectfully shall refuse to do so. See 

United States ex rel. Touhy v. Ragen, 

340 U.S. 462 (1951). 

(c) Upon notification by the witness of 

a request for opinion or expert 

testimony concerning official VA 

information, subjects, or activities 

during § 14.802(d) legal proceedings, the 

Designated VA Official shall follow the 

procedures contained in this section to 

determine whether such testimony shall 

be approved. 

(d) If VA personnel who are unaware 

of §§ 14.800 through 14.810 provide 

expert or opinion testimony concerning 

official VA information, subjects or 

activities in any legal proceeding, 

including one mentioned in § 14.802(d) 

in which the United States is not 

already represented, without consulting 

with the Designated VA Official, the 

witness, as soon after testifying as 

possible, shall inform the Designated 

VA official of the fact that such 

testimony was given and provide a 

summary of the expert or opinion 

testimony given. 

(e) If an employee is authorized to 

give fact witness testimony in a legal 

proceeding not involving the United 

States, the testimony, if otherwise 

proper, shall be limited to facts within 

the personal knowledge of the employee 

that are not classified, privileged, or 

protected from disclosure under 

applicable law or regulation. If asked to 

provide factual testimony that the 

employee believes may be classified, 

privileged, or protected from disclosure 

under applicable law or regulation, then 

the witness shall: 

(1) Respectfully decline to answer on 

the grounds that such testimony is 

prohibited; and 

(2) Request an opportunity to consult 

with the Designated VA Official. 

(Authority: 38 U.S.C. 501(a) and (b); 5 U.S.C. 

301) 

§ 14.809 Demands or requests in legal 

proceedings for records protected by 

confidentiality statutes. 

In addition to complying with the 

requirements of §§ 14.800 through 

14.810, requests or demands in legal 

proceedings for the production of 

records, or for testimony of VA 

employees concerning information, 

protected by the Privacy Act, 5 U.S.C. 

552a, or other confidentiality statutes, 

such as 38 U.S.C. 5701, 5705 and 7332, 

must satisfy the requirements for 

disclosure imposed by those statutes, 

and implementing regulations, such as 

38 CFR 1.511, before the records may be 

provided or testimony given. 

Accordingly, the Designated VA Official 

may first determine whether there is 

legal authority to provide the testimony 

or records sought under applicable 

confidentiality statutes before applying 

§§ 14.800 through 14.810. Where an 

applicable confidentiality statute 

mandates disclosure, §§ 14.800 through 

14.810 will not apply. 

(Authority: 38 U.S.C. 501(a) and (b); 5 U.S.C. 

301) 

§ 14.810 Fees. 

(a) The testimony of VA personnel as 

witnesses and the production of VA 

records in legal proceedings subject to 

§§ 14.800 through 14.810 are services 

which convey special benefits to the 

individuals or entities seeking such 

testimony or production of records 

above and beyond those accruing to the 

general public. These services are not 

regularly received by or available 

without charge to the public at large. 

Consequently, these are the sort of 

services for which VA may charge under 

31 U.S.C. 9701. Where a determination 

is made to comply with the demand, 

order or request pursuant to § 14.807(e) 

or 14.808, the Designated VA Official 

will calculate fees consistent with 38 

CFR 1.561(d) and (f) through (l) and 

shall timely notify the requester of the 

fees, particularly those which are to be 

paid in advance. For purposes of 

calculating fees all requesters under 

§§ 14.800 through 14.810 will be 

considered Commercial Use Requesters 

as defined by 38 CFR 1.561(c)(1). 

(b)(1) When a request is granted under 

§ 14.808 to permit VA personnel to 

testify, the requester shall pay to the 

government a fee calculated to 

reimburse the cost of preparing and 

providing the witness for testimony. 

The fee shall include: 

(i) Costs of the time expended by VA 

personnel to process and respond to the 

demand, order, or request; 

(ii) The cost of the time expended to 

prepare the witness to testify; and 

(iii) Travel costs for VA personnel 

associated with providing testimony. 

(2) All costs for documents shall be 

calculated as provided in VA 

regulations implementing the fee 

provisions of the Freedom of 

Information Act, 5 U.S.C. 552. 

(c) When an individual testifies in 

legal proceedings covered by §§ 14.800 

through 14.810in any capacity other 

than as an expert witness, the requester 

shall pay to the witness the fee and 

expenses prescribed for attendance by 

the applicable rule of court. If no such 

fee is prescribed, the applicable Federal 

rule, such as a local Federal District 

Court rule, will apply. No additional fee 

will be prescribed for the time spent 

while testifying or in attendance to do 

so. 

(d) When a requester wishes to 

interview VA personnel as part of legal 

proceedings covered by §§ 14.800 

through 14.810, and such interview has 

been approved in accordance with 

§§ 14.800 through 14.810, the requester 

shall pay a fee calculated upon the total 

hourly pay of the individual 

interviewed. 

(e) When VA produces records in 

legal proceedings pursuant to §§ 14.800 

through 14.810, the fees to be charged 

and paid prior to production of the 

records shall be the fees charged by VA 

under its regulations implementing the 

fee provisions of the Freedom of 

Information Act, 5 U.S.C. 552. 

(f) Fees shall be paid as follows: 

(1) Fees for copies of documents, 

blueprints, electronic tapes, or other VA 

records will be paid to the VA office or 

station providing the records, and 

covered to the General Fund of the 

Department of the Treasury. 

(2) Witness fees for testimony shall be 

paid to the witness, who shall endorse 

the check ‘‘pay to the United States,’’ 

and surrender it to their supervisor. It 

shall thereafter be deposited in the 

General Fund. 

(3) The private party requesting a VA 

witness shall forward in advance 

necessary round trip tickets and all 

requisite travel and per diem funds in 

accordance with General Services 

Administration (GSA) policy. 

(g) A waiver of any fees in connection 

with the testimony of an expert witness 

may be granted by the Designated VA 

Official at the official’s discretion 

provided that the waiver is in the 

interest of the United States. Fee 

waivers shall not be routinely granted, 

nor shall they be granted under 

circumstances which might create the 

appearance that VA or the United States 

favors one party or a position advocated 

by a party to the legal proceeding. 

(Authority: 38 U.S.C. 501(a) and (b); 5 U.S.C. 

301) 

PART 36—LOAN GUARANTY 

■ 13. The authority citation for part 36 

continues to read as follows: 

Authority: 38 U.S.C. 501 and 3720. 

§ 36.4321 [Removed] 

■ 14. Remove § 36.4321. 

[FR Doc. 2024–23840 Filed 11–6–24; 8:45 am] 

BILLING CODE 8320–01–P 


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