[Federal Register Volume 65, Number 200 (Monday, October 16, 2000)]
[Proposed Rules]
[Pages 61132-61133]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-26450]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AK00


Post-Traumatic Stress Disorder Claims Based on Personal Assault

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: This document proposes to amend Department of Veterans Affairs 
(VA) adjudication regulations concerning the proof necessary to 
establish occurrence of a stressor in claims for service connection of 
post-traumatic stress disorder (PTSD) resulting from personal assault. 
This amendment would provide that evidence other than the veteran's 
service records may be sufficient to establish the occurrence of the 
stressor. The proposed regulation also would require that VA not deny 
such claims without first advising claimants that evidence from sources 
other than a veteran's service records may prove the stressor occurred. 
This would make claimants aware of the types of evidence which might 
support their claims, and would give them an opportunity to obtain and 
submit such evidence. It would also ensure that VA will not deny claims 
simply because the claimants did not realize that certain types of 
evidence may be relevant and therefore failed to submit such evidence 
to VA.

DATES: Comments must be received on or before December 15, 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; or fax comments to 
(202) 273-9289; or e-mail comments to ``[email protected]''. 
Comments should indicate that they are submitted in response to ``RIN 
2900-AK00.'' All comments received will be available for public 
inspection in the Office of Regulations Management, Room 1158, between 
the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday (except 
holidays).

FOR FURTHER INFORMATION CONTACT: Bill Russo, Regulations Staff, 
Compensation and Pension Service, Veterans Benefits Administration, 
Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 
20420; telephone (202) 273-7210.

SUPPLEMENTARY INFORMATION: Section 3.304(f) of 38 CFR states that 
service connection for PTSD requires medical evidence diagnosing the 
condition; 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.
    A claim for PTSD may be based upon a personal assault, including 
sexual assault. Many incidents of in-service personal assault are not 
officially reported, and veterans may find it difficult to produce 
evidence to prove the occurrence of this type of stressor. This 
proposed amendment addresses this difficulty by specifying that 
evidence from sources other than the veteran's service records may 
constitute credible supporting evidence of the in-service stressor, 
where the alleged stressor is a personal assault.
    VA's Adjudication Procedure Manual, M21-1, discusses the types of 
evidence which may be credible supporting evidence that the stressor 
occurred for PTSD claims involving an in-service personal assault. M21-
1, Part III, par. 5.14c. and Part VI, par. 11.38. In Patton v. West, 12 
Vet. App. 272, 283 (1999), the U.S. Court of Appeals for Veterans 
Claims discussed paragraph 5.14c. of M21-1, Part III, referring to it 
as a ``regulatory provision [ ].'' We are proposing to amend VA's 
adjudication regulations at Sec. 3.304(f) to specify the types of 
evidence, other than a veteran's service records, which may establish 
the occurrence of a personal assault during service.
    This proposed amendment would recognize that in PTSD claims based 
on in-service assault, evidence from sources other than a veteran's 
service records may constitute credible supporting evidence of the 
stressor. Examples of such evidence include, but are not limited to: 
Records from law enforcement authorities, rape crisis centers, mental 
health counseling centers, hospitals or physicians; and statements from 
family members, roommates, fellow service members or clergy.
    Evidence from these sources might include, for example, evidence of 
behavior changes following the personal assault. Examples of behavior 
changes that might result from a personal assault include, but are not 
limited to: A request by the veteran for a transfer to another military 
duty assignment; a change in work performance; substance abuse; 
episodes of depression, panic attacks or anxiety where there is no 
identifiable reason for the episodes; or unexplained economic or social 
behavior changes.
    The proposed regulation would also provide that VA will not deny a 
PTSD claim which is based on personal assault without first advising 
the claimant that evidence from alternative sources or evidence of 
behavior changes may constitute credible supporting evidence of the 
stressor. This would ensure that claimants are aware of the types of 
evidence which might support their claims and would give them an 
opportunity to obtain and submit such evidence. It would also ensure 
that VA will not deny claims simply because the claimants did not 
realize that certain types of evidence may be relevant and therefore 
failed to submit such evidence to VA.
    The proposed amendment also would state that VA may submit any 
evidence that it receives to an appropriate medical professional for an 
opinion as to whether it indicates that a personal assault occurred. 
Such an opinion may be necessary when evidence requires medical 
interpretation and analysis based on the portion of the American 
Psychiatric Association's Diagnostic and Statistical Manual of Mental 
Disorders, Fourth Edition, which concerns PTSD.
    This proposed amendment would also divide current Sec. 3.304(f), 
regarding PTSD claims, into two new sub-paragraphs, one involving PTSD 
claims by combat veterans and the other concerning PTSD claims by 
former prisoners-of-war. No substantive change would be made by this 
aspect of the proposal.

OMB Review

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

Regulatory Flexibility Act

    The Secretary hereby certifies that this regulatory amendment will 
not have a significant economic impact on a substantial number of small 
entities as they are defined in the Regulatory Flexibility Act (RFA), 5 
U.S.C. 601-612. The reason for this certification is that these 
amendments would not directly affect any small entities. Only VA 
beneficiaries 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 sections 603 and 604.
    The Catalog of Federal Domestic Assistance program numbers are 
64.100,

[[Page 61133]]

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: July 17, 2000.
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.
    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.
    (1) 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.
    (2) 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.
    (3) If a post-traumatic stress disorder claim is based on in-
service personal assault, evidence from sources other than the 
veteran's service records may constitute credible supporting evidence 
of the stressor. Examples of such evidence include, but are not limited 
to: Records from law enforcement authorities, rape crisis centers, 
mental health counseling centers, hospitals or physicians; and 
statements from family members, roommates, fellow service members or 
clergy. Evidence of behavior changes following the claimed assault is 
one type of relevant evidence which may be found in these sources. 
Examples of behavior changes that may constitute credible supporting 
evidence of the stressor include, but are not limited to: A request for 
a transfer to another military duty assignment; deterioration in work 
performance; substance abuse; episodes of depression, panic attacks, or 
anxiety without an identifiable cause; or unexplained economic or 
social behavior changes. VA will not deny a post-traumatic stress 
disorder claim which is based on in-service personal assault without 
first advising the claimant that evidence from sources other than the 
veteran's service records or evidence of behavior changes may 
constitute credible supporting evidence of the stressor and allowing 
him or her the opportunity to furnish this type of evidence or advise 
VA of potential sources of such evidence. VA may submit any evidence 
that it receives to an appropriate medical professional for an opinion 
as to whether it indicates that a personal assault occurred.

(Authority: 38 U.S.C. 501(a), 1154(b))

[FR Doc. 00-26450 Filed 10-13-00; 8:45 am]
BILLING CODE 8320-01-U