[Federal Register Volume 64, Number 231 (Thursday, December 2, 1999)]
[Proposed Rules]
[Pages 67528-67534]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-31076]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AJ44


Well-grounded Claims

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) is proposing to amend 
its adjudication regulations concerning a claimant's statutory 
responsibility to support his or her claim with adequate evidence to 
make the claim ``well grounded.'' The proposed rule also addresses VA's 
duty to help claimants who have filed well-grounded claims obtain 
evidence pertinent to their claims. The intended effect of this 
amendment is to establish clear guidelines regarding the types of 
evidence that make a claim well grounded; VA's duty to help claimants 
obtain evidence; and exceptions to the well-grounded claim requirement.

DATES: Comments must be received on or before January 31, 2000.

ADDRESSES: Mail or hand-deliver written comments to: Director, Office 
of Regulations Management (02D), Department of Veterans Affairs, 810 
Vermont Ave., NW, Room 1154, Washington, DC 20420. Comments should 
indicate that they are submitted in response to ``RIN 2900-AJ44.'' All 
written comments received will be available for public inspection at 
the above address in the Office of Regulations Management, Room 1158, 
between the hours of 8 a.m. and 4:30 p.m., Monday through Friday 
(except holidays).

FOR FURTHER INFORMATION CONTACT: Janice Jacobs, Consultant, Policy and 
Regulations Staff, Compensation and Pension Service, Veterans Benefits 
Administration, 810 Vermont Avenue, NW, Washington, DC 20420, telephone 
(202) 273-7223.

SUPPLEMENTARY INFORMATION: Section 5107(a) of title 38, United States 
Code, states that, except when otherwise provided by the Secretary, a 
person who submits a claim for benefits under a law administered by VA 
shall have the burden of submitting evidence sufficient to justify a 
belief by a fair and impartial individual that the claim is well 
grounded. Section 5107(a) further requires the Secretary of Veterans 
Affairs to assist ``such a claimant'' in developing the facts pertinent 
to the claim. Both the United States Court of Appeals for Veterans 
Claims (CAVC) and the United States Court of Appeals for the Federal 
Circuit (Federal Circuit) have construed this statutory language as 
requiring a claimant to submit a well-grounded claim before VA has a 
duty to help him or her obtain any additional evidence it needs to 
decide the claim on its merits.
    Although VA has not defined the term ``well grounded,'' CAVC and 
the Federal Circuit have issued a number of decisions defining that 
term. A well-grounded claim is ``a plausible claim, one which is 
meritorious on its own or capable of substantiation. Such a claim need 
not be conclusive but only possible to satisfy the initial burden of 
[5107(a)].'' Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The 
Federal Circuit has affirmed CAVC decisions holding that VA's statutory 
duty to assist attaches only after a claimant submits a well-grounded 
claim. Epps v. Gober, 126 F.3d 1464, 1468-69 (Fed. Cir. 1997), cert. 
denied sub. nom. Epps v. West, ____ U.S. ____, 118 S.Ct. 2348 (1998). 
In Morton v. West, 12 Vet. App. 477, 486 (1999), the CAVC held that VA 
has no authority to issue regulations inconsistent with the statutory 
requirement that claimants submit enough evidence to well ground their 
claims before VA is required to assist in developing the claims. The 
Morton decision, in effect, invalidated any internal VA directives or 
procedures which purport to volunteer VA assistance in all claims, even 
if they are not well grounded, by holding that such directives or 
procedures are inconsistent with section 5107(a).
    In a number of cases, both the Board of Veterans' Appeals (BVA) and 
CAVC have found that claims developed and adjudicated at VA's regional 
offices were not well grounded. The Veterans' Claims Adjudication 
Commission, established under Public Law 103-446, questioned the 
prudence of investing time and resources in developing claims that are 
not well grounded. Furthermore, the CAVC has noted that if the 
Secretary, as a matter of policy, volunteers assistance to establish 
well groundedness, grave questions of due process can arise if there is 
apparent disparate treatment among claimants in this regard. See 
Grivois v. Brown, 6 Vet. App. 136 (1994).
    Recognizing the need for clear guidelines that can be consistently 
applied both on well-grounded claims and VA's duty to assist, VA 
published an advance notice of proposed rulemaking in the Federal 
Register on October 30, 1998 (63 FR 58336). This notice invited 
comments on the proposed policy and procedures VA should adopt with 
respect to these issues. We received comments from the American Legion 
(AL); Disabled American Veterans (DAV); the State of Florida Department 
of Veterans Affairs (FDVA); joint comment from AMVETS, the National 
Organization of Veterans Advocates (NOVA), and the Paralyzed Veterans 
of America (PVA); Vietnam Veterans of America (VVA); and three 
concerned individuals.

Need to Write Regulations

    Several commenters, maintaining that the courts have misconstrued 
section 5107(a) by holding that a well-grounded claim is a prerequisite 
to VA's duty to assist claimants in developing evidence, stated that VA 
should not undertake rulemaking on these issues and thereby ingrain the 
error of the courts in its regulations. VA does not agree that the 
courts have misconstrued section 5107(a) in this respect. Moreover, VA 
is bound by the precedent decisions of the courts and their 
interpretations of statutes. We are, therefore, proposing to revise the 
regulations to incorporate the courts' interpretation of section 
5107(a).
    Another commenter stated that there is no need for VA to undertake 
rulemaking on this issue because it already has binding rules in its 
Adjudication Procedures Manual, M21-1; in agency circulars; in 
precedential general counsel opinions; in agency

[[Page 67529]]

guides; and in agency transmittal sheets. However, the Morton decision 
expressly concluded that provisions that volunteer VA assistance in all 
claims even if they are not well grounded, conflict with the statute 
and therefore create no enforceable rights for claimants. Although 
section 5107(a) allows the Secretary to establish exceptions, those 
exceptions must be established by regulation and must be consistent 
with the statute; it is, therefore, necessary for VA to undertake 
rulemaking on this issue. Provisions in VA manuals or other internal 
documents that are inconsistent with section 5107(a) will be revised or 
eliminated as necessary.

Definition of a Well-Grounded Claim

    One commenter suggested that we define a well-grounded claim as one 
accompanied by ``sufficient supporting evidence'' to establish the 
possibility of entitlement. While VA agrees in principle with this 
concept, in our view the ``sufficient supporting evidence'' language is 
too vague for practical implementation.
    A person submitting a claim for benefits under this part must 
submit sufficient evidence to justify a belief by a fair and impartial 
individual that the claim is well grounded. 38 U.S.C. 5107. The 
legislative history of 38 U.S.C. 5107 indicates that Congress intended 
that ``the claimant would have the burden of adducing some evidence on 
each element necessary to warrant the granting of the benefit at 
issue.'' S.Rep. No. 418, 100th Cong., 2d Sess. 32 (1988). Consistent 
with the legislative history, we propose to define a well-grounded 
claim as one for which there is some competent evidence with respect to 
each element necessary to establish entitlement to the particular 
benefit sought. We believe that it is reasonable to require a claimant 
to show the possibility that he or she meets a benefit's eligibility 
requirements before the government commits its limited resources to the 
time and expense of developing further evidence.
    Although the criteria for entitlement to the various benefits 
administered by VA differ depending upon the benefit sought, the 
proposed general definition of a well-grounded claim is simple and 
flexible enough to provide a workable standard for determining whether 
evidence well grounds a claim. Furthermore, a simple and clear 
definition will not only help claimants understand what they have to 
submit to show they may be qualified for the benefits sought, but it 
will promote consistent treatment of claims by all VA decision makers.
    Certain statutory and regulatory presumptions relieve claimants of 
having to present evidence on one or more of the elements, usually the 
nexus requirement, necessary to well ground a claim by presuming the 
establishment of those elements. To establish a well-grounded claim for 
any such benefit, the claimant must submit some evidence on each of the 
other remaining elements necessary to establish entitlement to the 
benefit under the applicable statute or regulation.

Claimant's Obligations and Evidentiary Requirements

    One commenter suggested that the rule should state the specific 
types of evidence a claimant must submit to well ground a claim. We 
agree and propose to include in the rule examples addressing the types 
of evidence needed to well ground claims for the most commonly claimed 
benefits. Another commenter stated that requiring a claimant to 
establish a well-grounded claim is essentially requiring the claimant 
to prove entitlement on the merits. We do not agree. While evidence 
that is sufficient to grant a claim on its merits is unquestionably 
sufficient to well ground the claim, the well-grounded requirement is a 
minimal threshold, requiring only enough evidence to show that a claim 
is plausible.
    The claimant's responsibility is to submit enough evidence to 
justify a belief that he or she plausibly meets the eligibility 
requirements for the specific benefit sought. While the requirements, 
and therefore the nature of the evidence, will vary depending on the 
benefit sought, we are proposing that the claimant must, at a minimum, 
establish the possibility of entitlement through competent lay or 
medical evidence.
    We propose to state that medical evidence is competent when it is 
offered by a person who, through education, is qualified to offer a 
medical opinion on a matter requiring medical expertise. We are not 
proposing that a medical opinion, to be competent, must in all cases be 
rendered by an individual who is licensed as an ``M.D.'' or who is 
board certified in a particular field. We propose to state that lay 
evidence is competent when it is offered by a person who has first-hand 
knowledge of facts or circumstances and relates matters that can be 
observed and described by a lay person. A lay person is not qualified 
to offer medical opinions or to diagnose a medical condition. For 
purposes of well grounding a claim, competent lay and medical evidence 
would be accepted as credible unless it is incredible on its face or 
beyond the expertise of the person making the statement. See Robinette 
v. Brown, 8 Vet. App. 69, 75-76 (1995), quoting King v. Brown, 5 Vet. 
App.19, 21 (1993).
    In our view, it would not be feasible to state specific standards 
for each type of VA benefit in light of the variety of benefits 
available. However, it is important to establish a workable general 
definition of a well-grounded claim which can be applied to a claim for 
any benefit. In this regard, we propose to state that a claim is well 
grounded if the claimant has submitted some competent evidence with 
respect to each element necessary to establish entitlement to the 
particular benefit sought.
    We propose to define more specifically the elements that evidence 
must address in order to well ground claims for service-connected 
disability compensation, nonservice-connected disability pension 
(pension), and claims for increased compensation for a service-
connected disability because they are the types of benefits for which 
we receive the most claims.

Well-Grounded Claim for Service-Connected Disability Compensation

    We propose to state that to well ground a claim for service 
connected disability compensation the claimant must submit (1) 
competent medical evidence of a current disability; (2) competent lay 
or medical evidence that a disease or injury was incurred in or 
aggravated by service; and (3) competent medical evidence showing a 
nexus or relationship between the in-service disease or injury and the 
current disability. See Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd 
78 F.3d 604 (Fed. Cir.1996) (per curiam). Medical evidence is required 
to establish the first element, that the veteran have a current 
disability, because the determinative issue involves a medical 
diagnosis and lay testimony is not competent evidence on this issue. 
Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Grottveit v. Brown, 5 Vet. 
App. 91, 93 (1995).
    The second element, in-service incurrence or aggravation, may be 
established by either medical or lay evidence depending on the facts of 
the case. Lay evidence would be sufficient where, for instance, it 
consists of statements by the claimant describing circumstances 
surrounding an in-service injury which are of a nature that could be 
observed by a lay person. As previously noted, such lay testimony, for 
purposes of well grounding a claim, would be accepted as credible on 
its face. Medical evidence in service medical records, if available, 
could also

[[Page 67530]]

suffice to show that there was inservice diagnosis or treatment of a 
disability or injury. Caluza.
    The third requirement, a link or ``nexus'' between the in-service 
incident and the current disability, requires competent medical 
evidence. Again, while such medical evidence need not be conclusive, it 
must indicate the medical plausibility of such a nexus, it must be more 
than speculative and assert more than a possibility of a link. See 
Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); Beausoleil v. Brown, 
8 Vet. App. 459, 463 (1996). This evidence may be contained, for 
example, as a notation in VA outpatient treatment records, in VA or 
private hospital reports, or in a statement from a private physician.
    Alternatively, a claimant can establish service connection for a 
disability under the chronicity and continuity criteria stated in 38 
CFR 3.303(b). The chronicity provision of Sec. 3.303(b) applies where 
evidence, regardless of its date, shows that the veteran had a chronic 
condition in service or during an applicable presumption period and has 
current signs and symptoms which are present manifestations of the same 
chronic disability. Savage v. Gober, 10 Vet. App. 488, 495 (1997). The 
evidence to establish chronicity must be medical unless it relates to a 
condition for which lay observation is competent. If the chronicity 
provision does not apply, a claim may also be well grounded under the 
continuity provision of Sec. 3.303(b) if there is medical evidence of a 
current disability, competent lay or medical evidence that a condition 
was noted in service or during any presumption period; competent lay or 
medical evidence of post-service continuity of symptoms; and competent 
medical, or in some circumstances lay, evidence of a nexus between the 
present disability and the post service symptoms. Medical evidence 
would usually be required to establish a nexus. Savage, 10 Vet. App. at 
498.

Well-Grounded Claim for Pension

    We propose to state that to well ground a pension claim, a claimant 
must submit evidence of (1) qualifying wartime service; (2) income 
within the statutory requirements of 38 U.S.C. 1521; (3) medical 
evidence that the claimant has a permanent disability; and (4) 
competent medical or lay evidence that the claimant is unable to work 
because of that disability. See Vargas-Gonzalez v. West, 12 Vet. App. 
321 (1999) (stating the requirements for entitlement to pension). Lay 
evidence, such as a claimant's statement that he or she had war time 
service, could establish the first element to well ground a claim for 
pension. The claimant's statement or other evidence of current 
household income would suffice to meet the second element. The third 
element, that the claimant has a permanent medical condition(s), would 
require competent medical evidence. The fourth element, that the 
claimant is unable to work because of that disability, would require 
either competent medical evidence or competent lay evidence, such as a 
statement from the claimant or another individual with first-hand 
knowledge of that fact.

Well-Grounded Claim for Increased Compensation

    We propose to state that a claimant's statement that his/her 
medical condition has worsened is enough to well ground a claim for an 
increased evaluation of a service connected disability. The courts have 
held that a claim that a condition has become more severe is well 
grounded where the condition was previously service connected and 
rated, and the claimant subsequently asserts that a higher rating is 
justified due to an increase in severity since the last evaluation. 
Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); McCaffrey v. 
Brown, 6 Vet. App. 377, 381 (1994).

VA's Duty To Assist

    It is only after a claim for benefits is well grounded that VA's 
duty arises to assist a claimant in developing additional evidence 
needed to decide the claim on its merits. 38 U.S.C. 1507; Epps, supra; 
Morton, supra. Because the evidence needed to well ground a claim is 
minimal, VA often will need additional evidence to decide the merits of 
the claim.
    We propose that when a claim is well grounded, VA will help the 
claimant obtain the evidence specified in the regulation needed to 
fully decide the claim on its merits. This evidence may include records 
from federal, state or local government agencies as well as private 
medical, employment and other non-government records. To prevent misuse 
of time and resources, and to expedite an efficient request for such 
evidence, we propose to require the claimant to (1) identify where any 
such evidence may be located; (2) specify the approximate time frame 
covered by the records; and (3) authorize the release of the records in 
a format acceptable to the person or agency holding them. We also 
propose that if VA is unable to obtain these records after reasonable 
effort and after a reasonable period of time, it must notify the 
claimant of that fact and the reason, if known, as to why the records 
have not been received. It would also notify the claimant that although 
VA has a duty to help him or her obtain evidence, the claimant has the 
ultimate responsibility for producing it, and that unless VA hears from 
the claimant within 30 days from the date on the notice, VA will 
proceed to decide the claim on the basis of the evidence of record. VA 
would not pay any fees required by custodians for furnishing requested 
records; VA has no statutory authority to do so. This represents no 
change from the current requirement under 38 CFR 3.159 regarding 
payment of fees.
    As part of its duty to assist, VA would also schedule a VA 
examination if medical evidence accompanying the claim is not adequate 
for rating purposes. See 38 CFR 3.326.

Informing Claimants of Evidence Needed To Well Ground Claims

    Almost all of the commenters urged us to require VA to inform 
claimants of the evidence they need to submit in order to well ground 
their claims. We agree it is fair and equitable for VA to do so. 
Accordingly, when a claimant applies for a VA benefit, but the claim is 
not well grounded, we propose to require VA to (1) notify the claimant, 
in writing, of that fact; (2) notify the claimant as to the types of 
evidence necessary to well ground the claim; and (3) allow the claimant 
thirty (30) days from the date on the notice to submit it. VA believes 
it is fair and not unduly burdensome to allow the claimant 30 days in 
which to furnish evidence sufficient to well ground a claim because the 
``threshold of plausibility to make a claim well grounded `is rather 
low.' '' Robinette, 8 Vet. App. at 76, citing White v. Derwinski, 1 
Vet. App. 519, 521 (1991).
    We believe that the ``duty to inform'' proposed here will further 
the claimant's understanding of his or her responsibility to well 
ground a claim. This proposed procedure, moreover, should afford the 
claimant an early determination as to whether the claim is well 
grounded.

Initial Claims Processing

    We propose that VA determine whether a claim is well grounded 
before taking any further action. If a claim is not well grounded upon 
an initial review, the 30-day time period will permit the claimant an 
opportunity to gather and submit the limited supporting documentation 
needed to well ground the claim.
    Three commenters suggested that as part of the initial claims 
processing, VA

[[Page 67531]]

should obtain service medical records and VA medical records as well as 
records from other federal agencies. One commenter stated that VA 
should distinguish between VA records and non-VA evidence, and require 
the claimant to submit only non-VA records. Another commenter stressed 
that VA should require claimants to specifically identify any relevant 
VA records to include year of treatment and type of records related to 
the claimed disability. We agree, in part, and propose to authorize VA 
to request VA medical records which the claimant has identified as 
relevant to the claim, but only if the claimant has clearly identified 
the VA facilities and approximate treatment dates for the claimed 
conditions. We believe it is reasonable to obtain VA treatment records 
in all claims where the claimant asserts their relevance, because these 
records are in VA custody, even though they may not be in the custody 
of the office responsible for deciding the claim. We believe it is 
reasonable to require claimants to identify the location and 
approximate dates of VA treatment because it would otherwise be 
extremely difficult for VA to determine whether a claimant had ever 
received treatment at any of VA's numerous medical facilities and to 
identify and locate all records of such treatment.
    We also propose to authorize VA to request service medical records 
in claims for service-connected disability or death where they have not 
already been associated with the claims file. Service medical records 
are records of medical treatment during active duty. Since 1992, these 
records have been routinely sent to VA's Records Management Center 
(RMC) by the military units at the time of discharge, but were not 
routinely sent to VA for veterans discharged prior to that date. 
Existing claims processing procedure already provides for the immediate 
transmission of these records to a VA Regional Office when it 
establishes a claims file for a veteran; preventing VA from taking 
advantage of the availability of these records would serve no purpose 
but to delay claims processing. In view of the long-standing practice 
of obtaining service medical records in all cases, we believe it would 
be in the best interests of claimants, as well as VA and the service 
departments, if VA were to continue to obtain these records in all 
cases, rather than requiring claimants to seek to obtain them from the 
service departments. Further, because service medical records are 
highly relevant to VA claims, it is preferable for VA to obtain these 
records to ensure that it has a complete and accurate copy of such 
records. VA believes that in some cases, service medical records may 
contain evidence that will well ground certain elements of a claim, 
e.g., evidence of a current medical condition in the case of clearly 
permanent conditions, such as missing extremities, or clearly chronic 
conditions. See Hampton v. Gober, 10 Vet. App. 481 (1997) (service 
medical records provided evidence of current knee condition).
    Because VA does not have a duty to assist a claimant who has not 
established a well-grounded claim, we propose that during the 30-day 
period during which the claimant would be allowed to submit the 
evidence necessary to well ground the claim, VA would not schedule a VA 
examination or attempt to obtain any private medical or non-medical 
records, or other federal or state agency records. Deferring 
development until the claim is well grounded is consistent with 38 
U.S.C. 5107, which states that VA's duty to assist does not arise until 
that time. Furthermore, it will promote administrative efficiency, by 
allowing VA to schedule general and special exams at one time after the 
30-day period has expired, avoiding the ``piecemeal'' development which 
delays claims processing and decision making.
    We propose that at the end of 30 days, VA will review VA medical 
records and service medical records together with any evidence the 
claimant has submitted to determine if a claim is well grounded. If it 
is not well grounded, VA would deny the claim as not well grounded, 
notify the claimant which threshold requirements for the benefit have 
not been met, and advise the claimant of his or her right to appeal the 
decision.
    In cases where a claimant submits an application for benefits that 
contains multiple claims, some of which are well grounded and others 
which are not, we propose that VA notify the claimant of the types of 
evidence necessary to well ground each claim that is not well grounded, 
and allow the claimant 30 days from the date on the notice in which to 
submit it. During this 30-day period, VA will request service medical 
records. It will also request any VA medical records the claimant has 
identified as relevant to any of the claims, but only if the claimant 
has clearly identified the VA facilities and approximate dates of 
treatment for the claimed conditions. VA will not schedule a VA 
examination on the well grounded claims until the expiration of 30 
days. If, after 30 days, VA has not received evidence that well grounds 
each claim, it will deny the claims that are not well grounded and will 
help the claimant obtain any additional evidence that it needs to 
determine entitlement to benefits for the well grounded claims, 
including the scheduling of a VA exam, if necessary. We believe this 
policy will allow VA to avoid ``piecemeal'' development and promote 
administrative efficiency, by allowing it to schedule general and 
special exams at one time after the 30-day period has expired.
    Although we propose to allow a claimant 30 days to submit evidence 
to well ground his or her claim before VA denies it, 38 U.S.C. 5103 and 
its implementing regulation, 38 CFR 3.109(a), allow a claimant one year 
to submit evidence to complete an application for benefits, calculated 
from the date that VA requests the evidence. In our view, the 
provisions of Sec. 3.109(a) would apply to evidence that VA advised a 
claimant is necessary to well ground a claim. In the event that a 
claimant has difficulty obtaining the evidence needed to well ground 
his or her claim, or there is a delay in the receipt of VA medical 
records or service medical records, we propose that VA would review any 
evidence received after the 30-day period, but within one year of the 
date the evidence was requested. This review would be conducted even if 
a prior decision within that one year previously determined that the 
claim was not well grounded. VA would then determine, based on all the 
evidence of record, whether the claim is well grounded. If the 
additional evidence well grounds the claim, VA will proceed to help the 
claimant by requesting any additional evidence needed to decide the 
claim on its merits. If the additional evidence does not make the claim 
well grounded, VA will deny the claim as not well grounded, inform the 
claimant of which threshold requirements for the benefit have not been 
met, and advise the claimant of his or her right to appeal the 
decision.

Exceptions to the Requirement To File a Well-Grounded Claim

    Section 5107(a) provides that claimants have the burden of 
submitting evidence sufficient to justify a belief that the claim is 
well grounded, ``[e]xcept when otherwise provided by the Secretary in 
accordance with the provisions of this title.'' In Morton, the court 
held that VA manual provisions and other internal documents 
volunteering VA assistance in all claims, even when they are not well 
grounded, would be inconsistent with section 5107(a). VA agrees. A 
regulation offering VA assistance in all cases

[[Page 67532]]

would not merely state an exception to the general requirements of 
section 5107(a), but would, in effect, negate the requirements of 
section 5107(a).
    In authorizing VA to create exceptions to the well-grounded-claim 
requirements, Congress plainly intended that that requirement would 
continue to govern most cases, and that any exceptions would be 
reasonably based on special circumstances. Accordingly, we have 
concluded that any exceptions to the well-grounded-claim requirement 
must be narrow, reasonably based, and not inconsistent with any 
statutory provision. We propose to create five exceptions to the 
requirement that anyone seeking VA benefits file a well-grounded claim.
    First, we propose to relieve a veteran who files a claim for 
disability compensation within one year of his or her release from 
active duty from having to submit a well-grounded claim. The intent of 
Congress, as reflected throughout Title 38, is to afford recently-
released veterans assistance in achieving a rapid social and economic 
readjustment to civilian life and attaining a higher standard of living 
for themselves and their dependents. Experience with World War II 
veterans has shown that it may be very difficult, many years after the 
fact, for a veteran to establish entitlement to compensation based on 
disabilities existing at the time of his or her discharge. Development 
of claims filed within one year of discharge will provide a disability 
baseline which could be helpful in adjudicating any claims for service 
connection filed in the future. This procedure would allow VA to 
compile evidence of veterans' medical conditions at the time of 
discharge. The one year time period is also consistent with the time 
period for the manifestation of most of the presumptive chronic 
disabilities listed in 38 CFR 3.309(a). For these reasons, we believe 
it is simply good policy to help veterans recently released from active 
duty to obtain the evidence needed to establish entitlement to 
disability compensation.
    Second, we propose to relieve terminally ill claimants from having 
to submit a well-grounded claim. For this purpose, we would define a 
``terminally ill person'' as one who has a medical condition that, in 
the opinion of a physician, is incurable, and will likely result in 
death within one year. VA believes it is reasonable to require some 
competent medical evidence supporting a claimant's entitlement to this 
exception because the claimant with a medical prognosis of less than a 
one year life expectancy is likely to be receiving treatment for the 
terminal illness and would have readily available medical records. We 
believe this exception is justified because a terminally ill claimant 
is likely to be too incapacitated to actively participate in the 
evidence-gathering process, and it is in his or her best interest for 
VA to determine as quickly as possible whether he or she is entitled to 
the claimed benefit. Furthermore, a quick determination of entitlement 
may be necessary to entitle the claimant to VA medical care. Finally, a 
quick determination of entitlement in this situation will increase the 
likelihood that the veteran will have the benefit of VA compensation 
during his or her lifetime, and in some instances, may forestall the 
need to apply the limitation on the payment of accrued benefits.
    As one commenter noted, claimants who could not afford private 
medical treatment and have no access to VA medical care may be 
disadvantaged by a requirement that they submit medical evidence of a 
current disability or evidence of nexus. We agree. Therefore, as a 
third exception, we propose to relieve a claimant who submits evidence 
from a medical provider that he or she has been denied medical 
treatment within the past 12 months for lack of funds, from the 
requirement to submit a well-grounded claim.
    Fourth, we propose to relieve a veteran who files a claim for 
service connection for post traumatic stress disorder (PTSD) from 
submitting a well-grounded claim if he or she submits competent 
evidence that he or she was engaged in combat with the enemy, and 
competent medical evidence that he or she is experiencing symptoms of 
PTSD. Medical evidence of a nexus would not be required for the 
purposes of well grounding the claim. While the requirement to well 
ground a claim is a low threshold, we are concerned that veterans who 
underwent the stress of combat and currently are diagnosed with PTSD 
not suffer additional stress in attempting to gather evidence during 
the claims process and should be afforded special assistance in 
developing the claim prior to it being determined to be well grounded.
    Fifth, we propose to relieve a veteran from submitting a well-
grounded claim for service connection for PTSD if he or she submits 
competent evidence that he or she was a victim of sexual assault in 
service and competent medical evidence that he or she is experiencing 
symptoms of PTSD. Medical evidence of a nexus would not be required for 
the purposes of well grounding the claim. Competent evidence would 
include a lay statement describing the claimed in-service incident of 
sexual assault. VA is aware that sexual assault in service is often 
undocumented. It has provided special guidance to its Regional Office 
personnel on developing the evidence to support such claims. VA 
believes that veterans who have been traumatized by sexual assault 
should not suffer additional stress by attempting to gather evidence 
during the claims process and should be afforded assistance in 
developing the claim prior to it being determined to be well grounded.
    Consistent with these proposed changes, we also propose to revise 
38 CFR 3.103 to clarify that VA's duty to assist arises after a 
claimant submits a well-grounded claim. The adoption of the proposed 
provision as a final rule would also necessitate corresponding changes 
in Manual M21-1, including but not limited to Part III paragraphs 
1.01(a); 1.03(a); 2.01; 5.19; 5.20; Part VI, paragraphs 1.01(b), 2.08, 
and 2.10 which relate to VA developing all pertinent facts to well 
ground a claim; fully developing claims before a decision is made on 
well groundedness; types of evidence that may serve to establish 
reasonable probability of a well-grounded claim; and prohibiting the 
denial of a claim before all efforts to assist have been exhausted.

Applications

    Claims are initiated by submitting to VA completed application 
forms. The forms have been approved by OMB (VA form 21-526, OMB Control 
No. 2900-0001; VA form 21-527, OMB Control No. 2900-0002; VA form 21-
534, OMB Control No. 2900-0004; VA form 21-551, OMB Control No. 2900-
0027; VA Form 21-0304, OMB Control No. 2900-0572; VA Form 21-4138, OMB 
Control No. 2900-0075.

Unfunded Mandates

    The Unfunded Mandates Reform Act requires (in section 202) that 
agencies prepare an assessment of anticipated costs and benefits before 
developing any rule that may result in an expenditure by State, local, 
or tribal governments, in the aggregate, or by the private sector, of 
$100 million or more in any given year. This final rule will have no 
consequential effect on State, local, or tribal governments.

Executive Order 12866

    This proposed rule has been reviewed by OMB under Executive Order 
12866.

Regulatory Flexibility Act

    The Secretary hereby certifies that the adoption of these 
amendments will not have a significant economic impact on a substantial 
number of small entities as

[[Page 67533]]

they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. 
The reason for this certification is that these amendments would not 
directly affect any small entities. Only individuals could be directly 
affected. Therefore, pursuant to 5 U.S.C. 605(b), these amendments are 
exempt from the initial and final regulatory flexibility analysis 
requirements of section 603 and 604.

Catalog of Federal Domestic Assistance Program Numbers

    The Catalog of Federal Domestic Assistance program numbers are 
64.100, 64.101, 64.104, 64.105, 64.106, 64.109, and 64.110.

List of Subjects in 38 CFR Part 3

    Administrative practice and procedure, Claims, Disability benefits, 
Health care, Pensions, Veterans, Vietnam.

    Approved: November 18, 1999.
Togo D. West, Jr.,
Secretary of Veterans Affairs.

    For the reasons set forth in the preamble, 38 CFR Part 3 is 
proposed to be 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.


Sec. 3.103  [Amended]

    2. In Sec. 3.103, paragraph (a) is amended by adding ``who has 
filed a well-grounded claim'' immediately after ``to assist a 
claimant''.
    3. Section 3.159 is revised to read as follows:


Sec. 3.159  Claimant's responsibility to submit a well-grounded claim 
and VA's duty to help a claimant obtain evidence.

    (a) Definitions. For purposes of this section, the following 
definitions apply:
    (1) Well-grounded claim means:
    (i) A claim meeting the provisions of paragraphs (b)(2), (b)(3), or 
(b)(4) of this section; and
    (ii) For any benefit under this part for which VA has not 
established specific criteria for determining whether a claim for that 
benefit is well grounded, means a claim for which there is some 
competent evidence with respect to each element necessary to establish 
entitlement to the particular benefit sought.
    (2) Competent evidence means evidence offered by an individual who 
is qualified by training or experience to offer an opinion on a matter. 
Lay evidence is competent when it is offered by a person who has first-
hand knowledge of facts or circumstances and relates matters that can 
be observed and described by a lay person. Medical evidence is 
competent when it is offered by a person who, through education, is 
qualified to offer a medical opinion on a matter requiring medical 
expertise.
    (3) A terminally ill person means one who has a medical condition 
that in the opinion of a physician is incurable, and will likely result 
in death within twelve months.
    (b) Claimant's responsibility to file a well-grounded claim. A 
person claiming VA benefits must submit sufficient evidence to justify 
a belief by a fair and impartial individual that the claim is well 
grounded. Evidence does not have to prove entitlement to a benefit in 
order to well ground a claim, but there must be some competent evidence 
addressing each element necessary to establish entitlement to the 
benefit. VA will presume evidence is credible for the purpose of making 
a claim well grounded unless it is incredible on its face or beyond the 
expertise of the person making the statement. If a regulatory or 
statutory presumption relieves a claimant from having to submit 
evidence on specific elements to establish entitlement to a benefit, 
the claimant need not submit evidence on those elements to well ground 
the claim. See, e.g., 38 CFR 3.304(f); 3.309; 3.316; 3.317.
    (1) Exceptions. VA will help the claimant obtain additional 
evidence pertinent to the claim even though the claim is not well 
grounded:
    (i) If a claimant files a claim for disability compensation within 
one year of his or her release from active military, naval, or air 
service;
    (ii) If a claimant submits evidence from a medical provider that he 
or she has been denied medical treatment within the past 12 months due 
to lack of funds;
    (iii) If a claimant submits competent medical evidence that he or 
she is terminally ill;
    (iv) If a claimant submits competent evidence that he or she was 
engaged in combat with the enemy, and competent medical evidence that 
he or she is experiencing symptoms of post traumatic stress disorder; 
or

    (v) If a claimant submits competent evidence that he or she was a 
victim of sexual assault in service and competent medical evidence that 
he or she is experiencing symptoms of PTSD.
    (2) Disability compensation. A claimant may well-ground a claim for 
disability compensation in one of three ways:
    (i) Generally, by submitting competent medical evidence of a 
current disability; competent medical or, in cases where the condition 
is observable by a lay person, lay evidence, that a disease or injury 
was incurred in or aggravated by service or during an applicable 
presumption period; and, in the case of inservice disease or injury, 
competent medical evidence indicating that there is a plausible link 
between the current disability and the inservice disease or injury.
    (ii) Where the claimant claims service connection for a chronic 
disability, by submitting competent medical evidence that he or she 
currently has a chronic disability; competent medical or where the 
disability is observable by a lay person, lay evidence that the chronic 
disability existed in service or during an applicable presumption 
period; and competent medical evidence that he or she has current signs 
and symptoms which are manifestations of the same chronic disability. 
38 CFR 3.303(b).
    (iii) Where the claimant claims service connection for a disability 
whose symptoms have existed continuously since service, by submitting 
competent medical or where the disability is observable by a lay 
person, lay evidence that a disability existed during service or any 
applicable presumptive period; competent medical or where the 
disability is observable by a lay person, lay evidence that signs or 
symptoms of that disability have existed continuously from the time of 
service to the time the disability was first definitely diagnosed; and 
competent medical evidence that the claimant currently has the same 
disability. 38 CFR 3.303(b).
    (3) Increased disability compensation. A veteran's statement that 
his or her service-connected disability has worsened is sufficient, on 
its own, to well ground a claim for increased compensation benefits.
    (4) Disability Pension. To well ground a claim for nonservice-
connected disability pension, a claimant must submit:
    (i) Evidence of qualifying wartime service;
    (ii) Evidence of income within the statutory requirements of 38 
U.S.C. 1521;
    (iii) Competent medical evidence that the claimant has a permanent 
disability; and
    (iv) Competent medical or, where the disability is observable by a 
lay person, lay evidence that the claimant is unable to work because of 
that disability.

[[Page 67534]]

    (c) VA's duty to help claimants obtain evidence. Upon receipt of 
any claim, VA will determine whether it is well grounded before taking 
any further action.
    (1) If a claim is well grounded, except as otherwise provided in 
paragraph (c)(3) of this section for certain multiple claims, VA will 
help the claimant, as specified in this paragraph, obtain additional 
relevant lay or medical evidence, of which it is reasonably aware, that 
is needed to establish entitlement to the benefit sought. VA will 
obtain service medical records in claims for service-connected 
disability or death. Provided the claimant has provided enough 
information to identify and locate the evidence including the location 
and approximate dates and time frame covered by the records, VA will 
request, directly from the source, relevant existing evidence which is 
in the custody of military authorities, other Federal agencies, state 
and local governmental authorities, VA medical facilities, private 
medical providers, current and former employers, and other non-
governmental individuals and entities. If necessary for such record 
requests, the claimant must authorize the release of records in a form 
acceptable to the person or agency holding the records. VA will not pay 
any fees charged for providing the evidence. If VA is unable to obtain 
any evidence it has requested after reasonable effort and after a 
reasonable period of time, it will advise the claimant of that fact, 
and of the reasons why, if known. VA will also advise the claimant that 
he or she is ultimately responsible for providing the evidence and that 
unless VA hears from the claimant within 30 days from the date on the 
notice, VA will proceed to decide the claim on the basis of the 
evidence of record.
    (2) If a claim is not well grounded, VA will notify the claimant of 
the types of evidence necessary to well ground the claim, and allow him 
or her 30 days from the date on the notice to submit it. During this 
30-day period, VA will request service medical records in claims for 
service-connected disability or death. It will also request VA medical 
records that the claimant has identified as relevant to the claim, 
provided the claimant has provided enough information to identify and 
locate the evidence including the location and approximate dates 
covered by the records. VA will not schedule a VA examination or 
request any other evidence during this period. If, after 30 days, VA 
has not received evidence that well grounds the claim, it will deny the 
claim as not well grounded.
    (3) If an application for benefits includes multiple claims with at 
least one claim that is well grounded and one that is not, VA will 
notify the claimant of the types of evidence necessary to well ground 
each claim that is not well grounded, and allow the claimant 30 days 
from the date on the notice to submit it. During this 30-day period, VA 
will request service medical records. It will also request any VA 
medical records the claimant has identified as relevant to the 
claim(s), but only if the claimant has provided enough information to 
identify and locate the evidence including the location and approximate 
dates covered by the records. VA will not request any other evidence or 
schedule VA examinations for any of the claims during the 30-day 
period. If, after 30 days, VA has not received evidence that well 
grounds each claim, it will deny the claims that are not well grounded 
and will help the claimant obtain any additional evidence as set forth 
in paragraph (c)(1) of this section that it needs to determine 
entitlement to the benefits for which he or she has filed well-grounded 
claims.
    (4) If a claim has been denied as not well grounded, VA will review 
any evidence relevant to that claim that it receives within one year 
from the date of notification to the claimant under paragraph (c)(2) or 
(c)(3) of this section to determine whether, based on all the evidence 
of record, the claim is well grounded. See 38 CFR 3.109(a). If the 
evidence received does not well ground the claim, VA will again deny 
the claim as not well grounded. If the evidence received well grounds 
the claim, VA will help the claimant obtain any additional evidence as 
set forth in paragraph (c)(1) of this section that it needs to 
determine entitlement to the benefit sought.

(Authority: 38 U.S.C. 5107)

[FR Doc. 99-31076 Filed 12-1-99; 8:45 am]
BILLING CODE 8320-01-P