[Federal Register Volume 64, Number 117 (Friday, June 18, 1999)]
[Rules and Regulations]
[Pages 32807-32808]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15522]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AI97
Direct Service Connection (Post-Traumatic Stress Disorder)
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: This document amends the Department of Veterans Affairs (VA)
adjudication regulations concerning the type of evidence required to
establish service connection for post-traumatic stress disorder (PTSD).
This amendment implements a decision by the United States Court of
Veterans Appeals (the Court) which stated that current regulations do
not adequately reflect the governing statute.
DATES: Effective Date: March 7, 1997.
FOR FURTHER INFORMATION CONTACT: John Bisset, Jr., Consultant,
Regulations Staff, Compensation and Pension Service, Veterans Benefits
Administration, 810 Vermont Avenue, NW, Washington, DC 20420, telephone
(202) 273-7210.
SUPPLEMENTARY INFORMATION: PTSD is classified by the American
Psychiatric Association's Diagnostic and Statistical Manual of Mental
Disorders, Fourth Edition (DSM-IV) as an anxiety disorder resulting
from exposure to an extreme traumatic stressor involving direct
personal experience of an event that involved actual or threatened
death or serious injury or other threat to one's physical integrity;
witnessing an event that involved death, injury, or a threat to the
physical integrity of another person; or learning about unexpected or
violent death, serious harm, or threat of death or injury experienced
by a family member or other close associate. The person's response to
the event must involve intense fear, helplessness, or horror. PTSD is
characterized by persistent reexperiencing of the traumatic event,
persistent avoidance of stimuli associated with the trauma and numbing
of general responsiveness, and persistent symptoms of increased
arousal.
VA regulations at 38 CFR 3.304(f) provide that service connection
for PTSD requires medical evidence establishing a clear diagnosis of
the condition, credible supporting evidence that the claimed in-service
stressor actually occurred, and a link, established by medical
evidence, between current symptomatology and the claimed in-service
stressor. If the claimed stressor is related to combat, service
department evidence that the veteran engaged in combat or that the
veteran was awarded the Purple Heart, Combat Infantryman Badge, or
similar combat citation will be accepted, in the absence of evidence to
the contrary, as conclusive evidence of the claimed in-service
stressor.
Section 1154(b) of title 38, United States Code, which is the
statutory authority for Sec. 3.304(f), provides that, where a veteran
engaged in combat with the enemy, VA must accept as sufficient proof of
service-connection for a claimed disease or injury satisfactory lay or
other evidence of service incurrence or aggravation of such disease or
injury, if consistent with the
[[Page 32808]]
circumstances, conditions, or hardships of such service,
notwithstanding the fact that there is no official record of the
incurrence or aggravation of the claimed disease or injury. In Cohen v.
Brown, 10 Vet. App. 128 (1997), the Court of Veterans Appeals found a
deficiency in Sec. 3.304(f) in that it does not adequately reflect, for
the purposes of establishing an in-service stressor, the relaxed
adjudicative evidentiary requirements provided by 38 U.S.C. 1154(b) for
establishing service incurrence of an event. The Court noted that,
although Sec. 3.304(f) states that proof of an in-service stressor that
is claimed to be related to combat may be shown by service department
evidence that the veteran engaged in combat, or that the veteran
received a particular decoration or award, Sec. 3.304(f) does not
expressly provide that a combat veteran's lay testimony alone may
establish an in-service stressor pursuant to 38 U.S.C. 1154(b). The
Court reiterated its conclusion in Zarycki v. Brown, 6 Vet. App. 91, 98
(1993), that, under 38 U.S.C. 1154(b), where it is determined that the
veteran engaged in combat with the enemy and the claimed stressor is
related to such combat, the veteran's lay testimony regarding the
claimed stressor must be accepted as conclusive as to its occurrence
and that no further development for corroborative evidence is required,
provided that the testimony is ``satisfactory'' and consistent with the
circumstances, conditions, or hardships of the veteran's service. VA
has amended Sec. 3.304(f) accordingly to provide that, if a veteran
engaged in combat and the claimed stressor is related to that combat,
in the absence of clear and convincing evidence to the contrary, and
provided that the claimed stressor is consistent with the
circumstances, conditions, or hardships of the veteran's service,
occurrence of the claimed stressor may be established by the veteran's
lay testimony alone.
Previously 38 CFR 3.304(f) provided that ``service department
evidence that the veteran engaged in combat or that the veteran was
awarded the Purple Heart, Combat Infantryman Badge, or similar combat
citation'' was conclusive evidence of ``the claimed in-service
stressor.'' In fact, service department evidence that the veteran
engaged in combat or received combat citations serves to establish that
the veteran engaged in combat rather than that the claimed stressor
occurred. We have therefore removed the references to service
department evidence of combat or receipt of specific combat citations
and revised the regulation to state that if evidence establishes that
the veteran engaged in combat, the veteran's lay testimony, subject to
the restrictions cited above, is sufficient to establish that the
claimed combat-related stressor actually occurred.
Additionally, we have amended that portion of Sec. 3.304(f)
regarding prisoner-of-war-related stressors in a similar manner. 38
U.S.C. 1154(a) requires that the Secretary include in regulations
pertaining to service-connection for disabilities provisions requiring
that due consideration be given to the places, types, and circumstances
of the veteran's military service. Prisoner-of-War (POW) experience is
another type of situation where events often can never be fully
documented and therefore warrants the same relaxed adjudication
requirements for service connection of PTSD as for those veterans who
engaged in combat.
The Court in Cohen v. Brown also pointed out that, although on
October 8, 1996, VA issued a final rule amending the Schedule for
Rating Disabilities (38 CFR Part 4) pertaining to mental disorders
which adopted the nomenclature of DSM-IV (See 61 FR 52695-702), no
amendment to Sec. 3.304(f) was made. The Court noted that Sec. 3.304(f)
does not specifically set forth any requirements regarding the
sufficiency of a stressor and the adequacy of symptomatology to support
a diagnosis of PTSD. We have therefore amended Sec. 3.304(f) to require
that the medical evidence diagnosing PTSD comply with 38 CFR 4.125(a),
which requires that diagnoses of mental disorders conform to DSM-IV.
VA is issuing a final rule, effective March 7, 1997, the date of
the Cohen v. Brown decision, to make the above described amendments.
Because these amendments reflect a decision of the Court, publication
as a proposal for public comment is unnecessary.
Because no notice of proposed rulemaking was required in connection
with the adoption of this final rule, no regulatory flexibility
analysis is required under the Regulatory Flexibility Act (5 U.S.C.
601-612). Even so, the Secretary hereby certifies that this final rule
will not have a significant economic impact on a substantial number of
small entities as they are defined in the Regulatory Flexibility Act.
The Catalog of Federal Domestic Assistance program numbers are
64.109 and 64.110.
List of Subjects in 38 CFR Part 3
Administrative practice and procedure, Claims, Disability benefits,
Health care, Pensions, Radioactive materials, Veterans, Vietnam.
Approved: November 20, 1998.
Togo D. West, Jr.,
Secretary of Veterans Affairs.
For the reasons set forth in the preamble, 38 CFR part 3 is amended
as follows:
PART 3--ADJUDICATION
Subpart A--Pension, Compensation, and Dependency and Indemnity
Compensation
1. The authority citation for part 3, subpart A continues to read
as follows:
Authority: 38 U.S.C. 501(a), unless otherwise noted.
2. In Sec. 3.304, paragraph (f) is revised to read as follows:
Sec. 3.304 Direct service connection; wartime and peacetime.
* * * * *
(f) Post-traumatic stress disorder. Service connection for post-
traumatic stress disorder requires medical evidence diagnosing the
condition in accordance with Sec. 4.125(a) of this chapter; a link,
established by medical evidence, between current symptoms and an in-
service stressor; and credible supporting evidence that the claimed in-
service stressor occurred. If the evidence establishes that the veteran
engaged in combat with the enemy and the claimed stressor is related to
that combat, in the absence of clear and convincing evidence to the
contrary, and provided that the claimed stressor is consistent with the
circumstances, conditions, or hardships of the veteran's service, the
veteran's lay testimony alone may establish the occurrence of the
claimed in-service stressor. If the evidence establishes that the
veteran was a prisoner-of-war under the provisions of Sec. 3.1(y) of
this part and the claimed stressor is related to that prisoner-of-war
experience, in the absence of clear and convincing evidence to the
contrary, and provided that the claimed stressor is consistent with the
circumstances, conditions, or hardships of the veteran's service, the
veteran's lay testimony alone may establish the occurrence of the
claimed in-service stressor.
(Authority: 38 U.S.C. 1154(b))
[FR Doc. 99-15522 Filed 6-17-99; 8:45 am]
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