[Federal Register Volume 70, Number 23 (Friday, February 4, 2005)]
[Notices]
[Pages 6079-6082]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-1991]


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DEPARTMENT OF VETERANS AFFAIRS


Privacy Act of 1974; Systems of Records

AGENCY: Department of Veterans Affairs (VA).

ACTION: Notice.

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SUMMARY: In accordance with the requirements of the Privacy Act of 
1974, 5 U.S.C. 552a(e), the Department of Veterans Affairs (VA) is 
publishing notice of amendment and alteration to its system of records 
known as ``Veterans Appellate Records System-VA (44VA01),'' and 
``Representatives'' Fee Agreement Records System (81VA01).'' VA is 
merging the information currently maintained in Representatives' Fee 
Agreement Records with the ``Veterans Appellate Records System.'' The 
amendments will affect the sections entitled System Location; 
Categories of Individuals Covered by the System; Categories of Records 
in the System; Purpose(s); Routine Uses of Records Maintained in the 
System; and Policies and Practices for Storing, Retrieving, Accessing, 
Retaining, and Disposing of Records in the System. VA is publishing the 
combined system notice in its entirety at this time.

DATES: Comments must be received by VA on or before March 7, 2005, 
which is the date the amended system will become effective.

ADDRESSES: Mail or hand-deliver written comments to: Director, 
Regulations Management (00REG1), Department of Veterans Affairs, 810 
Vermont Avenue, NW., Room 1068, Washington, DC 20420; or fax comments 
to (202) 273-9026; or e-mail comments to <a href="/cdn-cgi/l/email-protection#045245766163716865706d6b6a774469656d682a72652a636b72"><span class="__cf_email__" data-cfemail="99cfd8ebfcfeecf5f8edf0f6f7ead9f4f8f0f5b7eff8b7fef6ef">[email protected]</span></a>. 
Comments should indicate that they are submitted in response to the 
Notice of Amendments to a System of Records. All comments received will 
be available for public inspection in the Office of Regulation Policy 
and Management, Room 1063B, between the hours of 8 a.m. and 4:30 p.m., 
Monday through Friday (except holidays). Please call 202 273-9515 for 
an appointment.

FOR FURTHER INFORMATION CONTACT: Steven L. Keller, Senior Deputy Vice 
Chairman, Board of Veterans' Appeals (012), Department of Veterans 
Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 565-5978.

SUPPLEMENTARY INFORMATION: The Veterans Appellate Records System 
(44VA01) was first established in 1975 to track claims for veterans 
benefits that had been appealed to the Board of Veterans' Appeals (BVA 
or Board). With the expansion of advanced technology and increased 
electronic data collection capacity, traditional methods of 
recordkeeping have changed significantly. BVA now maintains most of the 
records covered by 44VA01 in a computer database entitled Veterans 
Appeals Control and Locator System (VACOLS).
    One of the traditional paper-based methods of keeping track of 
appeals at the Board was use of the Briefface folder. These Briefface 
folders traditionally reflected the status of the appeal as it traveled 
through the Board until an appeal was decided. Thereafter, the 
Briefface was removed from the claims folder before the folder was 
returned to the VA Regional Office (VARO). The Briefface remained at 
BVA as a document in system 44VA01 until disposed of in accordance with 
procedures approved by the Archivist of the United States. However, 
since all the information contained in the Briefface is now tracked 
electronically, the Briefface is obsolete. Therefore, the Board is 
discontinuing this method of collecting data. Brieffaces in use as of 
March 31, 2002, will be maintained in an offsite storage facility once 
the Board has decided an appeal. They will be disposed of by shredding 
or burning after 18 months according to the timeline and procedural 
requirements of General Records Schedule 16, Item 7.
    The Representatives' Fee Agreement Records System--VA , identified 
as 81VA01, was established in 1991 to allow the Board to monitor fee 
agreements between attorneys-at-law or accredited agents and claimants 
being represented before VA according to the provisions of 38 U.S.C. 
5904. The information contained in this system includes paper copies of 
fee agreements and correspondence related to fee agreements and 
electronic information with regard to names and addresses of both 
parties to the agreements and VA identification numbers or social 
security numbers. Since most of this information is already contained 
in VACOLS (44VA01), we believe that merging the two systems will 
obviate the need to retain 81VA01 and will eliminate redundant data 
entry.
    In addition, providing the information through VACOLS allows a VARO 
to locate any existing fee agreement that requires withholding of a 
portion of the payment of past due benefits to a beneficiary. As of 
April 1, 2003, fee agreements and powers of attorney received by the 
Board have been scanned and electronically available in VACOLS. Thus, 
VARO personnel no longer need to contact the Board in every instance 
where the question of fee agreements arises and the Board need not 
create paper file folders to hold duplicate copies of fee agreements. 
The original fee agreement remains in the claimant's file folder and 
the electronically attached copy along with other pertinent data, 
becomes part of VACOLS.
    The System Location notice has been updated to reflect the 
locations of the computer servers that house the system as well as VA 
sites where non-electronic records (e.g., tapes of hearings) are 
housed, as well as the address of the Board's contractor.

[[Page 6080]]

    The section, Categories of Individuals Covered by the System, 
refers to the persons by whose names records may be retrieved from the 
system. The notice has been amended to remove categories of individuals 
on whom information may be stored in VACOLS, but which cannot be 
retrieved by the individual's name or other personal identifier.
    The Categories of Records section in the system notice has been 
expanded to reflect the addition of information pertaining to 
contesting parties, agents, and private attorneys; to include digital 
recordings of hearings, copies of written fee agreements and documents 
relating to the filing and review of fee agreements; procedural 
information on the disposition of claims where a Board decision has 
been remanded from or overturned by the United States Court of Appeals 
for Veterans Claims; and to describe more fully the older, non-
electronic records in the system.
    The Purpose statement has been amended to include the monitoring of 
attorney fee agreements, statistical evaluation of the appellate 
process and evaluation of employee performance.
    VA proposes to add five new routine uses and rewrite and 
consolidate existing ones. Because this system contains material 
relating to employee evaluations, four of these will permit release of 
information to the Merit Systems Protection Board, the Equal Employment 
Opportunity Commission, the Federal Labor Relations Authority and the 
employee's union. Permission to release information from this system to 
law enforcement personnel and security guards has been clarified, 
indicating that release is permitted in order to alert them to the 
presence of dangerous persons in VA facilities or at VA activities 
conducted in non-VA facilities. The routine use permitting release of 
information regarding the legality or ethical propriety of 
representatives has been expanded to permit release to other Federal 
and State agencies and to Federal courts. The remaining new routine use 
is carried over from system 81VA01 and permits release of attorney fee 
information to the United States Court of Appeals for Veterans Claims 
when an order of the Board has been applied to that Court in accordance 
with the provisions of 38 U.S.C. 5904(c)(2).
    The Storage portion of the notice has been amended to reflect 
changes in the nature of records kept. Verbatim recordings of hearings, 
previously recorded on magnetic tape will be recorded and stored 
digitally until a transcript has been made and electronically attached 
in VACOLS. According to Rule 714 of the Board's Rules of Practice, 38 
CFR 20.714, when a transcript of a hearing is made, the transcript 
becomes the official record of the hearing and the recording is 
retained as a duplicate record of the hearing for 12 months, after 
which time it is destroyed according to NARA approved standards. With 
the change from audio to digital recordings and the practice of 
creating a transcript of all hearings, destruction of hearing 
recordings will follow procedures to be established in revisions to 
Rule 714 of the Board of Veterans' Appeals Rules of Practice, 38 CFR 
20.714, that will permit challenge to the accuracy of the transcription 
prior to destruction of the recording.
    The Retrievability section has been amended to note that 
information from this system that is stored in VACOLS can now be 
retrieved by any searchable field in the VACOLS program. However, this 
system notice covers only information retrieved by an individual's name 
or other personal identifier. Retrievability of archived materials not 
stored in VACOLS is unchanged except that attorney fee agreements and 
related correspondence received prior to the practice of incorporating 
them in VACOLS and kept in file folders may be retrieved by the name of 
the appellant.
    The Privacy Act, 5 U.S.C. 552a(b)(1) provides that agencies may 
disclose records contained in a system of records ``to those officers 
and employees of the agency which maintains the record who have a need 
for the record in the performance of their duties.'' The Safeguards 
statement currently provides that records in this system ``are under 
custody of designated employees with access only to employees of the 
Board of Veterans' Appeals and its contractor who needs to know.'' It 
has become advisable for Department of Veterans Affairs Regional Office 
(VARO) employees to be able to follow the progress of appeals and 
answer veteran and other appellant questions on the process. More 
appellants file multiple and concurrent appeals for a variety of issues 
than ever before. Because BVA may or may not already have made a 
decision on any one of these appeals, and because of the increasing 
numbers of these multiple and concurrent actions, it is in the best 
interest of the VAROs to have an electronic indicator of what actions 
have taken place. Therefore it has become necessary to expand the 
population of employees with access to VACOLS to include employees of 
the VA Compensation and Pension Service (C&P) and VAROs. VACOLS can be 
set to automatically limit the access of individuals to specified 
records. Designated VARO and C&P employees are able to view any records 
in VACOLS so that they can respond to inquiries from appellants, 
representatives and Members of Congress. Designated employees of the 
VARO where an appeal originates have the ability to modify electronic 
records based on the status of the appeal. For example, if an appeal is 
in advance status (ADV), the appeal is in the process of being 
developed and the VARO can modify any part of the electronic record. 
When a claim has been certified to the Board on appeal and the file has 
been received at the Board, its status is converted to active (ACT). 
When a case is in ACT status, VARO employees cannot modify any part of 
the VACOLS record. This is also true when a case is in remand (REM) 
status or after the Board enters a final decision and the file goes 
into history (HIS) status.
    VACOLS is available to authorized persons through the VA wide area 
network (WAN), which means that access is limited to those who are 
actually in VA buildings, ROs, Medical Centers, etc. Because 38 U.S.C. 
5902 and 38 CFR 14.635 permit VA to provide office space to Veterans 
Service Organizations (VSOs), it is possible to provide representatives 
of those organizations who work in VA buildings with limited access to 
VACOLS if they have a valid, current power of attorney or prior written 
consent. VSOs with access to the VA computer network may only view 
VACOLS records of individuals for whom they are the representatives of 
record. VSO access is read only, meaning that they are not able to 
alter, delete or add to those records. Other properly designated 
representatives who are not located in buildings that permit access to 
VACOLS may request a paper copy of the records in this system that 
pertain to their clients.
    Provision for the disposal of digitally recorded material through 
erasure has been added to the Retention and Disposal section, and will 
be governed by procedures to be established in Rule 714, 38 CFR 20.714.

    Approved: January 11, 2005.
Anthony J. Principi,
Secretary of Veterans Affairs.
    44VA01, ``Veterans Appellate Records System-VA,'' as described in 
the Federal Register publication, ``Privacy Act Issuances, 1989 
Compilation, Volume II,'' page 904, and amended at 56 FR 15663 (April 
17, 1991), 63 FR 37941 (July 14, 1998), and 66 FR 47725 (Sept. 13, 
2001) is republished in its entirety below to incorporate the system's 
merger with 81VA01, ``Representatives'' Fee Agreement

[[Page 6081]]

Records System,'' first published at 56 FR 18874 (April 24, 1991) and 
amended at 57 FR 8792 (March 12, 1992), 63 FR 37941 (July 14, 1998), 
and 66 FR 47725 (Sept. 13, 2001), and the proposed changes. The system 
81VA01, ``Representatives'' Fee Agreement Records System'' is 
discontinued.
44VA01

SYSTEM NAME:
    Veterans Appellate Records System-VA.

SYSTEM LOCATION:
    Board of Veterans' Appeals, Department of Veterans Affairs (VA), 
Vermont Avenue, NW., Washington, DC 20420, at the Wilkes-Barre VA 
facility, 100 North Wilkes-Barre Boulevard, Wilkes-Barre, PA 18702, and 
with the Board's contractor, Promisel & Korn, Inc., 3228 Amberley Lane, 
Fairfax, VA 22031.

CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:
    Veterans, other appellants, Veterans Law Judges, Board staff 
attorneys and Members of Congress.

CATEGORIES OF RECORDS IN THE SYSTEM:
    The computer database entitled Veterans Appeals Control and Locator 
System (VACOLS) is a part of this system and includes electronically 
attached copies of Board of Veterans' Appeals decisions, remands and 
development memoranda; personal information on appellants and 
contesting parties including names, addresses, identifying numbers, 
phone numbers, service dates and issues on appeal; names, addresses and 
phone numbers of representatives, powers of attorney and attorney fee 
agreements; information on and dates of procedural steps taken in 
claims; records of and copies of correspondence concerning appeals, 
diary entries, notations of mail received, information requests; 
verbatim recordings and transcripts of hearings; tracking information 
as to file location and custodian; and employee productivity 
information. Material in this system that is not maintained in VACOLS 
includes copies of written fee agreements and documents relating to the 
filing and review of fee agreements received prior to the Board's 
practice of electronically attaching fee agreements and powers-of-
attorney in VACOLS; microfiche decision locator tables and indices to 
decisions from 1983 to 1994; and microfiche reels with texts of 
decisions from 1977 to 1989.

AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
    38 U.S.C. 7101(a), 7104, 5904.

Purpose(s):
    Initial decisions on claims for Federal veterans' benefits are made 
at VA field offices throughout the nation. Claimants may appeal those 
decisions to the Board of Veterans' Appeals. See 38 U.S.C. Chapter 71. 
The Board gathers or creates the records in this system in order to 
carry out its appellate function, to statistically evaluate the 
appellate process, to monitor attorney fee agreements, and to evaluate 
employee performance.

Routine Uses of Records Maintained In the System, Including Categories 
of Users and the Purposes of Such Uses:
    1. Disclosure to law enforcement personnel and security guards in 
order to alert them to the presence of dangerous persons in VA 
facilities or at VA activities conducted in non-VA facilities.
    2. VA may disclose on its own initiative any information in this 
system, except the names and home addresses of veterans and their 
dependents, which is relevant to a suspected or reasonably imminent 
violation of law, whether civil, criminal or regulatory in nature and 
whether arising by general or program statute or by regulation, rule or 
order issued pursuant thereto, to a Federal, State, local, tribal, or 
foreign agency charged with the responsibility of investigating or 
prosecuting such violation, or charged with enforcing or implementing 
the statute, regulation, rule or order. On its own initiative, VA may 
also disclose the names and addresses of veterans and their dependents 
to a Federal agency charged with the responsibility of investigating or 
prosecuting civil, criminal or regulatory violations of law, or charged 
with enforcing or implementing the statute, regulation, rule or order 
issued pursuant thereto.
    3. A record from this system of records may be disclosed to a 
veteran, claimant or a third party claimant (e.g., a veteran's 
survivors or dependents) to the extent necessary for the development of 
that claimant's claim for VA benefits.
    4. Disclosure may be made to a congressional office from the record 
of an individual in response to an inquiry from the congressional 
office made at the request of that individual.
    5. Disclosure may be made to the National Archives and Records 
Administration (NARA) in records management inspections conducted under 
authority of Title 44 U.S.C.
    6. A record from this system (other than the address of the 
beneficiary) may be disclosed to a former representative of a 
beneficiary to the extent necessary to develop and adjudicate a claim 
for payment of attorney fees to such representative from past due 
benefits under 38 U.S.C. 5904 (d) or to review a fee agreement between 
such representative and the beneficiary for reasonableness under 38 
U.S.C. 5904 (c)(2).
    7. Where VA determines that there is good cause to question the 
legality or ethical propriety of the conduct of a person or 
organization prospectively, presently or formerly representing a person 
in a matter before VA, a record from this system may be disclosed, on 
VA's initiative, to any or all of the following: (1) Applicable civil 
or criminal law enforcement authorities; (2) a person or entity 
responsible for the licensing, supervision, or professional discipline 
of the person or organization prospectively, presently or formerly 
representing a person in a matter before VA; (3) to other Federal and 
State agencies and to Federal courts when such information may be 
relevant to the individual's or organization's provision of 
representational services before such agency or court. Names and home 
addresses of veterans and their dependents will be released on VA's 
initiative under this routine use only to Federal entities.
    8. Disclosure may be made to the VA-appointed representative of an 
employee, including all notices, determinations, decisions, or other 
written communications issued to the employee in connection with an 
examination ordered by VA under medical evaluation (formerly fitness-
for-duty) examination procedures or Department-filed disability 
retirement procedures.
    9. Disclosure may be made to officials of the Merit Systems 
Protection Board, or the Office of the Special Counsel, or both, when 
requested in connection with appeals, special studies of the civil 
service and other merit systems, review of rules and regulations, 
investigation of alleged or possible prohibited personnel practices, 
and such other functions, promulgated in 5 U.S.C. 1205 and 1206, or as 
may be authorized by law.
    10. Disclosure may be made to the Equal Employment Opportunity 
Commission when requested in connection with investigations of alleged 
or possible discrimination practices, examination of Federal 
affirmative employment programs, compliance with the Uniform Guidelines 
of Employee Selection Procedures, or other functions vested in the 
Commission by the President's Reorganization Plan No. 1 of 1978.
    11. Disclosure may be made to the Federal Labor Relations 
Authority,

[[Page 6082]]

including its General Counsel, when requested in connection with 
investigation and resolution of allegations of unfair labor practices, 
in connection with the resolution of exceptions to arbitrator awards 
when a question of material fact is raised and matters before the 
Federal Service Impasses Panel.
    12. Disclosure of attorney fee information may be made to the 
United States Court of Appeals for Veterans Claims when an order of the 
Board has been applied to that Court in accordance with the provisions 
of 38 U.S.C. 5904(c)(2).

    Note: Any record maintained in this system of records which may 
include information relating to drug abuse, alcoholism or alcohol 
abuse, infection with the human immunodeficiency virus or sickle 
cell anemia will be disclosed pursuant to an applicable routine use 
for the system only when permitted by 38 U.S.C. 7332. To the extent 
that records contained in the system include information protected 
by 45 CFR parts 160 and 164, i.e., individually identifiable health 
information, that information cannot be disclosed under a routine 
use unless there is also specific regulatory authority in 45 CFR 
parts 160 and 164 permitting disclosure.

Policies and Practices For Storing, Retrieving, Accessing, Retaining, 
and Disposing of Records In the System:
Storage:
    Information is kept in a computer database entitled Veterans 
Appeals Control and Locator System (VACOLS) and backed up on computer 
tape. Archived records that were created prior to expansion of the 
BVA's electronic storage capability may be stored in filing folders or 
cabinets, microfiche, computer disks, computer tape and magnetic tape 
(hearings). Records in this system are essential to protecting legal 
and financial rights of individual citizens and the government and are 
maintained indefinitely as Category B Vital Records. Under the Vital 
Records Schedule, electronic back-up tapes are updated quarterly. A 
back-up tape is transferred weekly to the Board's contractor for quick 
access back-up tape storage. Hearings before the Board are recorded and 
stored digitally until a transcript has been made. Transcripts are then 
electronically attached to the record in VACOLS. Attorney fee 
agreements and related correspondence received prior to the Board's 
practice of attaching this information in VACOLS are kept in file 
folders. These files will be scanned into VACOLS, at which time 
original documents will be forwarded for association with the 
appropriate claims file. The now discontinued Briefface folders are 
maintained at the Board according to provisions of General Records 
Schedule 16, Item 7, for a minimum of 18 months.

Retrievability:
    VACOLS records in this system may be retrieved by any searchable 
field in the VACOLS database. This system notice covers only 
information retrieved by an individual's name or other identifier. 
Archived material from this system that is not in VACOLS may be 
retrieved by veteran's name, VA file number, or BVA archive citation 
number.

Safeguards:
    Files are under custody of designated employees of the Department 
of Veterans Affairs, including employees of the Board of Veterans' 
Appeals and its contractor, all of who have a need to know the contents 
of the system of records in order to perform their duties. Access to 
VACOLS is strictly limited to reflect the need individual employees 
have for the different records in the system. Where a VSO office is 
located in a VA facility and has access to VACOLS through the Wide Area 
Network (WAN), that access is strictly limited to viewing records of 
current clients of the organization. No personal identifiers are used 
in statistical and management reports, and personal identifiers are 
removed from all archived BVA decisions and other records in this 
system before VA makes them available to the public. Files kept by the 
contractor are in a locked safe in locked rooms in a secured building.

RETENTION AND DISPOSAL:
    Records in this system, in VACOLS and those collected prior to 
VACOLS use as a repository, are retained indefinitely as Category B 
Vital Records unless otherwise specifically noted. Under the Vital 
Records Schedule, electronic back-up tapes are destroyed by erasure 
upon receipt of the next quarterly tape set. Transcriptions of 
recordings of hearings will be attached electronically in VACOLS. 
Following procedures established in Rule 714, 38 CFR 20.714, 
transcripts will become the official records of hearings and the 
recordings will be destroyed through erasure after the hearing subject 
has had the opportunity to challenge the accuracy of the transcript. 
Briefface folders are shredded after 18 months as described in General 
Records Schedule 16, Item 7.

System Manager(s) and Address:
    Chairman (01), Board of Veterans' Appeals, 810 Vermont Avenue, NW., 
Washington, DC 20420.

Notification Procedures:
    An individual desiring to know whether this system of records 
contains a record pertaining to him or her, how he or she may gain 
access to such a record, and how he or she may contest the content of 
such a record may write to the following address: Privacy Act Officer 
(01C1), Board of Veterans' Appeals, 810 Vermont Avenue, NW., 
Washington, DC 20420. The following information, or as much as is 
available should be furnished in order to identify the record: Name of 
veteran, name of appellant other than the veteran (if any), and 
Department of Veterans Affairs file number. For information about 
hearing transcripts or tape recordings, also furnish the date, or the 
approximate date, of the hearing.

Record Access Procedures:
    Individuals seeking information regarding access to information 
contained in this system of records may write, call or visit the Board 
of Veterans' Appeals Freedom of Information Act Officer, whose address 
and telephone number are as follows: Freedom of Information Act Officer 
(01C1), Board of Veterans' Appeals, 810 Vermont Avenue, NW., 
Washington, DC 20420, (202) 565-9252.

Contesting Record Procedures:
    (See notification procedures above.)

Record Source Categories:
    VA Claims, insurance, loan guaranty, vocational rehabilitation, 
education, hospital records, and outpatient clinic records folders and 
associated folders; Board of Veterans' Appeals records; data presented 
by appellants and their representatives at hearings and in briefs and 
correspondence; and data furnished by Board of Veterans' Appeals 
employees.

Systems Exempted From Certain Provisions of the Act:
    None.
[FR Doc. 05-1991 Filed 2-3-05; 8:45 am]
BILLING CODE 8320-01-P


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