[Federal Register Volume 66, Number 65 (Wednesday, April 4, 2001)]
[Proposed Rules]
[Pages 17834-17840]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-8303]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AK69


Duty to Assist

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 to implement the provisions of the 
Veterans Claims Assistance Act of 2000 (the VCAA), which was signed by 
the President on November 9, 2000. The intended effect of this 
regulation is to establish clear guidelines consistent with the intent 
of Congress regarding the timing and the scope of assistance VA will 
provide to a claimant who files a substantially complete application 
for VA benefits.

DATES: Comments must be received on or before May 4, 2001.

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-AK69.'' 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: Janice Jacobs, Lead Consultant, 
Strategy Development Staff, Compensation and Pension Service, Veterans 
Benefits Administration, 810 Vermont Avenue, NW, Washington, DC 20420, 
telephone (202) 273-7223.

SUPPLEMENTARY INFORMATION: In the Veterans Claims Assistance Act of 
2000, Pub. L. 106-475 (the VCAA), Congress amended sections 5102 and 
5103 of title 38, United States Code, and added new sections 5100 and 
5103A pertaining to VA's duty to assist a claimant in obtaining 
evidence in support of a claim for benefits. Congress also amended 
section 5107 by deleting the concept of a ``well-grounded claim'' 
previously contained in that section. It retained the concept that the 
claimant is responsible for presenting and supporting a claim for 
benefits, and affirmed that the VCAA shall not be construed to require 
VA to reopen a claim that has been disallowed except when new and 
material evidence is presented or secured as described in 38 U.S.C. 
5108. VA is proposing regulations to implement the provisions of these 
sections.
    The VA General Counsel held in VAOPGCPREC 11-2000 that all of the 
provisions of the VCAA apply to claims filed on or after November 9, 
2000, as well as to claims filed before then but not finally decided as 
of that date.

Need to Write Regulations

    Section 5103A(e) of title 38, United States Code, directs VA to 
prescribe regulations to carry out the provisions of section 5103A, 
which now govern VA's duty to assist claimants in obtaining evidence to 
support their claims. Accordingly, VA is proposing to revise 38 CFR 
3.159, the regulation that governs VA's duty to assist.

Definitions

    We propose to define the terms ``competent medical evidence'' and 
``competent lay evidence'' in paragraphs (a)(1) and (a)(2) of 
Sec. 3.159 consistently with the intent of Congress as shown in the 
legislative history of the VCAA. See Explanatory Statement on H.R. 
4864, As Amended, 146 Cong. Rec. H9913, 9915 (daily ed. Oct. 17, 2000). 
Our proposed definitions are also consistent with the holdings of the 
Court of Appeals for Veterans Claims. See, e.g., Espiritu v. Derwinski, 
2 Vet. App. 492 (1992). We propose to define ``competent medical 
evidence'' to mean evidence provided by a person who, through 
education, training, or experience, is qualified to offer medical 
diagnoses, statements or opinions. Competent medical evidence would 
also include statements conveying sound medical principles found in 
medical treatises. In addition it would include statements contained in 
authoritative writings such as medical and scientific articles and 
research reports or analyses.
    We propose to define ``competent lay evidence'' in Sec. 3.159(a)(2) 
to mean any evidence not requiring that the proponent have specialized 
education, training, or experience. Lay evidence is competent if it is 
provided by a person who has knowledge of facts or circumstances and 
conveys matters that can be observed and described by a lay person. 
Although a lay person, under this proposed definition, would not be 
qualified to offer medical opinions or to diagnose a medical condition, 
he or she would be qualified to describe symptoms of disability that he 
or she has experienced or has observed in others. For example, as noted 
in the legislative history of the VCAA, a lay person can provide 
competent evidence that he or she has a pain in the knee but ``VA would 
not be bound to accept a veteran's assertion that he has a torn 
ligament, for that would require more sophisticated information.'' See 
Explanatory Statement on H.R. 4864, As Amended, 146 Cong. Rec. H9913, 
9915 (daily ed. Oct. 17, 2000).
    We propose to define a ``substantially complete application'' for 
benefits in 38 CFR 3.159(a)(3) as one that contains the claimant's 
name; his or her relationship to the veteran, if applicable; 
identifying service information, if applicable; the benefit claimed and 
any underlying medical conditions on which it is based; and the 
claimant's signature. If applicable, as in claims for nonservice-
connected disability or death pension, and parents' dependency and 
indemnity compensation, an application would also have to include a 
statement of income to be substantially complete. Although VA 
application forms request more information from the respondent than 
these facts, the information required to make an application 
substantially complete is generally sufficient for VA to identify the 
benefit claimed, determine whether the claimant is potentially eligible 
for it, and identify, at least generally, the types of evidence that 
would be required to substantiate the claim. A complete application 
would necessarily be a substantially complete application for purposes 
of VA's assistance in developing the claim.

[[Page 17835]]

    In addition, we propose to define the term ``event'' in 
Sec. 3.159(a)(4) for purposes of Sec. 3.159(c)(4)(i) to mean a 
potentially harmful occurrence, such as would be associated with a 
particular duty assignment or place of duty.
    We also propose in Sec. 3.159(f) that, for the purpose of the 
notice requirements in paragraphs (b) and (e) of this section, notice 
to the claimant means notice to the claimant or his or her fiduciary, 
if any, as well as to his or her representative, if any.

VA's Duty To Notify Claimants of Necessary Information or Evidence

    Consistent with the provisions in 38 U.S.C. 5103A, we propose in 38 
CFR 3.159(b)(1) that, if VA receives an application for benefits that 
is substantially complete, VA would notify the claimant of the 
information and medical or lay evidence required to substantiate the 
claim. The legislative history of the VCAA indicates that Congress 
intended the notice to inform the claimant of what medical evidence, 
such as diagnoses or opinions on causes or onset of the claimed 
condition, and what lay evidence, such as statements by the veteran, 
witnesses, or family members, would be necessary to substantiate the 
claim. See Explanatory Statement on H.R. 4864, As Amended, 146 Cong. 
Rec. H9913, 9914 (daily ed. Oct. 17, 2000). The notice would also 
inform the claimant which information and evidence the claimant is to 
provide and which information and evidence VA will attempt to obtain on 
the claimant's behalf. Information and evidence the claimant is to 
provide would reasonably include identification of medical treatment 
providers, income evidence, and other information or evidence in the 
claimant's control.
    Consistent with the statutory language, we propose in 38 CFR 
3.159(b)(1) that, if VA does not receive the necessary information and 
evidence within one year of the date of the notice to the claimant, VA 
cannot pay or provide any benefits based on that application. However, 
in order to allow for the timely processing of claims, we propose that, 
if a claimant does not respond to VA's request for information and 
evidence necessary to substantiate the claim within a reasonable period 
of time, VA may adjudicate the claim based on the information and 
evidence it has obtained on behalf of the claimant and all other 
evidence then of record prior to the expiration of the one-year period. 
Consistent with current procedures, if VA subsequently receives the 
requested information and evidence from the claimant within one year 
from the date it requested it from the claimant, it will readjudicate 
the claim.
    In addition, in order to allow for the timely processing of claims, 
we propose that, whether or not a claimant responded to VA's request 
for further evidence necessary to substantiate the claim, VA may 
adjudicate the claim prior to the expiration of the one-year period. If 
upon adjudication the claim is denied and VA subsequently receives the 
requested information and evidence within one year from the date of the 
request for information and evidence, the prior decision would be 
abrogated and the claim readjudicated.
    In our view, it is also reasonable to request that the claimant 
submit any evidence in his or her possession that pertains to the 
claim, and we have included such a provision in the proposed 
regulation. A claimant has an obligation to cooperate with VA in 
obtaining evidence. Because the duty to assist is not ``always a one-
way street,'' the claimant cannot passively wait for VA's assistance in 
circumstances where he or she may or should have information that is 
essential to obtaining evidence. Zarycki v. Brown, 6 Vet. App. 91 
(1993); Wamhoff v. Brown, 8 Vet. App. 517 (1996).
    We also propose in 38 CFR 3.159(b)(2) that, if VA receives an 
incomplete application, that is, one in which the claimant has failed 
to provide his or her name, relationship to the veteran, if applicable, 
identifying service information, the benefit claimed and any medical 
condition(s) on which it is based, a statement of income, if 
applicable, or a signature, VA would notify the claimant of the 
information necessary to complete the application. Consistent with 38 
U.S.C. 5103A(a)(3), we propose that VA will defer assistance to the 
claimant until the claimant provides the information necessary to 
substantially complete the application. In our view, it is reasonable 
to require a claimant to submit a substantially complete application 
before VA will undertake to assist the claimant, so that VA can 
determine from the application whether the claimant is potentially 
eligible for the benefit claimed and whether or not VA assistance would 
help substantiate the claim.

General Rule, VA's Duty To Assist Claimants in Obtaining Evidence

    We propose a general rule in 38 CFR 3.159(c), paralleling the 
statutory language in 38 U.S.C. 5103A(a)(1), that VA, upon receipt of a 
substantially complete application, will make reasonable efforts to 
help a claimant obtain evidence necessary to substantiate a claim. 
Consistent with the provisions of the VCAA, we also propose regulations 
related to VA's duty to obtain relevant existing records and VA's duty 
to provide a medical examination or obtain a medical opinion. In 
addition, we propose to retain the provision in current Sec. 3.159 that 
prohibits VA from paying any fees charged by a custodian of the records 
for providing the records. VA has no statutory authority to pay any 
costs charged for providing records. Furthermore, 38 U.S.C. 5106 as 
amended by the VCAA requires the department or agency providing 
information to VA for purposes of determining eligibility for, the 
amount of, or verifying entitlement to veterans' benefits to bear the 
cost of providing the information.
    We propose in 38 CFR 3.159(c)(1) that, upon receipt of a 
substantially complete application, VA will make reasonable efforts to 
help a claimant obtain records relevant to the claim that are not in 
the custody of a Federal department or agency. This provision would 
encompass medical records from private care providers, records from 
current or former employers, and records from other non-governmental 
entities.
    38 U.S.C. 5103A(b)(1) states that VA ``shall make reasonable 
efforts'' to obtain relevant records adequately identified by the 
claimant. We propose in 38 CFR 3.159(c)(1) that, for record requests to 
non-Federal government sources, VA's reasonable efforts would generally 
consist of an initial request for the records identified by the 
claimant and, if the records are not received, at least one follow-up 
request. A follow-up request would not be required if the response to 
the initial request indicates that the records sought do not exist or 
that further requests would be futile. For example, if in response to 
VA's request for records from a private physician VA receives a 
response that the physician is no longer in practice and his or her 
records no longer exist, a follow-up request would be unnecessary. We 
also propose in Sec. 3.159(c)(1) that, if VA receives information 
showing that subsequent requests to this or another source could result 
in obtaining the records sought, then reasonable efforts would also 
include an initial request and, if the records are not received, at 
least one follow-up request to the new source or an additional request 
to the original source. We believe that two requests for records are 
generally sufficient because, in our experience in claims development, 
if VA requests documents from a custodian of private records but 
receives no response after

[[Page 17836]]

two requests, the custodian seldom, if ever, responds to additional 
requests. Therefore, it would serve no purpose to continue requesting 
records. If two requests do not produce the records but point VA to a 
new source for them, however, VA would follow up on this additional 
information by an initial request for the records to the newly-
identified source and a follow-up request if necessary.
    VA will also assist claimants by requesting records in the custody 
of a Federal agency or department. We propose that the following types 
of records would be considered in the custody of a Federal agency or 
department: military records, including service medical records; 
medical and other records from VA medical facilities; records from non-
VA facilities providing examination or treatment at VA expense; and 
records from other Federal agencies, such as the Social Security 
Administration. 38 U.S.C. 5103A(b)(3) provides that VA's efforts to 
obtain such records ``shall continue until the records are obtained 
unless it is reasonably certain that such records do not exist or that 
further efforts to obtain those records would be futile.'' Therefore, 
we propose in 38 CFR 3.159(c)(2) that, in requesting records from a 
Federal department or agency, VA will make as many requests as are 
necessary to obtain the identified records. We also propose that VA's 
efforts would end only if VA concludes that the records do not exist or 
that further efforts would be futile. We propose that VA may make that 
conclusion, for example, if the source advises VA that the requested 
records do not exist or that it does not have them or if VA's 
substantial efforts to obtain the records are unsuccessful. In our 
view, this proposed provision reflects the Congressional intent that VA 
have a higher burden in attempting to obtain records maintained by VA 
and other Federal agencies than it does in attempting to obtain records 
from non-Federal governmental sources.
    38 U.S.C. 5103A(b)(1) requires VA to make reasonable efforts to 
obtain relevant records that a claimant ``adequately identifies'' and 
authorizes VA to obtain. We propose to state that a claimant must 
cooperate fully with VA's reasonable efforts to obtain relevant 
records. Consistent with section 5103A(b)(1) we propose in paragraphs 
(c)(1)(i) and (c)(2)(i) of Sec. 3.159 that such cooperation would 
require a claimant to provide enough information to identify and locate 
the relevant records. This information would ordinarily include the 
name of the person, company, agency, or other custodian of the records; 
the approximate time frame covered by the records; and in the case of 
medical treatment records, the condition for which treatment was 
provided. Depending on the nature of the records sought, adequate 
identification by the claimant may also require that the claimant 
provide additional information to enable the custodian of the record to 
locate the record. This would include VA requests for records from 
custodians such as the National Archives and Records Administration or 
the U.S. Armed Forces Center for Unit Records Research to corroborate a 
claimed stressor for post-traumatic stress disorder.
    We propose in paragraphs (c)(1)(i) and (c)(2)(i) of Sec. 3.159 that 
a claimant must adequately identify all records to be requested by VA 
on the claimant's behalf. This would apply to all records, Federal and 
non-Federal, except for service medical records, which are records that 
VA can easily obtain without further identification from the claimant. 
We believe that it is reasonable to require a claimant to provide 
enough information to allow the custodian of the records to locate 
them. In the case of VA medical records, this information is necessary 
to determine which of the many VA medical facilities provided treatment 
and to locate any relevant records of such treatment. We believe it is 
reasonable to require a claimant to identify the condition for which 
treatment was provided because this information may assist VA and non-
VA medical facilities in locating the requested records, particularly 
if treatment has been provided for several medical conditions. The 
claimant's failure to adequately identify records may, depending on the 
evidence of record, result in denial of the benefit sought.
    Consistent with 38 U.S.C. 5103A(b)(1), VA proposes in paragraphs 
(c)(1)(ii) and (c)(2)(ii) of Sec. 3.159 to require a claimant to 
authorize, if necessary, the release of existing records in a form 
acceptable to the records' custodian. If a claimant does not do so, the 
claimant prevents VA from obtaining the records, and in such cases, 
depending on the evidence of record, the claimant's failure to 
authorize the release of records may result in denial of the benefit 
sought.

VA's Duty To Assist a Claimant in Obtaining Records in Compensation 
Claims

    In addition to any other requirements under VA's general duty to 
assist a claimant in obtaining evidence, there are specific provisions 
in 38 U.S.C. 5103A(c) requiring VA to obtain certain records identified 
by the claimant to help substantiate a claim for compensation. These 
records are service records, VA treatment or examination records, and 
other Federal department or agency records. Therefore, we are proposing 
that, in claims for disability compensation, VA's efforts to assist a 
claimant in obtaining records must include attempts to obtain service 
medical records, and the following records if sufficiently identified 
by the claimant and relevant: other records related to military 
service, such as military personnel records; VA medical records or 
records of examination or treatment at non-VA facilities authorized by 
VA; and any other records held by any Federal department or agency, 
which would include records from the Social Security Administration.

Medical Examinations and Medical Opinions at VA Expense

    Under section 5103A(d) of 38 U.S.C., VA must provide a medical 
examination or obtain a medical opinion in compensation claims ``when 
such an examination or opinion is necessary to make a decision on the 
claim.'' The VCAA further provides that an examination or opinion is 
``necessary'' if the evidence of record, considering all the 
information and lay or medical evidence, including statements of the 
claimant: (1) Contains competent evidence that the claimant has a 
current disability or persistent or recurrent symptoms of disability; 
and (2) indicates that the disability or symptoms may be associated 
with the claimant's military service; but (3) does not contain 
sufficient medical evidence to decide the claim.
    We propose to implement 38 U.S.C. 5103A(d)(2) by providing in 38 
CFR 3.159(c)(4)(i) that, in claims for disability compensation, VA 
would provide an examination or obtain a medical opinion if, after 
completing its duty to assist a claimant in obtaining evidence as 
outlined in proposed Sec. 3.159(c)(1) through (c)(3), the record: (1) 
Contains competent evidence of a current disability or of persistent or 
recurrent symptoms of a disability; (2) establishes an in-service 
event, disease or injury that may be associated with the claimed 
condition; and (3) indicates that the claimed condition may be 
associated with the event, injury, or disease in service. If there is 
evidence of these three elements, VA would, when necessary to 
adjudicate the claim, provide a medical examination or obtain a medical 
opinion as to the relationship, if any, of the current disability to an

[[Page 17837]]

established event, injury, or disease in service, or an existing 
service-connected disability.
    We would require that the evidence establish an in-service event, 
disease, or injury. In our view, if, after VA completes its duty to 
obtain records as required by 38 U.S.C. 5103A(b), the evidence of 
record does not establish such an event, disease, or injury, ``no 
reasonable possibility exists that further assistance [i.e., a medical 
examination or opinion], would aid in substantiating the claim.'' 38 
U.S.C. 5103A(a)(2). The gap left by a lack of evidence of an in-service 
event, disease, or injury could not generally be filled by a VA 
examination report or medical opinion. For example, a doctor who 
examines a veteran after service could not, in his or her capacity as 
an examiner, attest to whether the veteran was exposed to a particular 
stressor at a particular time.
    We further propose in 38 CFR 3.159(c)(4)(ii) that the 38 U.S.C. 
5103A(d)(2)(B) condition that there be evidence ``indicat[ing] that the 
disability or symptoms may be associated with the claimant's'' service 
could be satisfied by evidence showing continuity of symptoms of a 
disability since the veteran's release from active duty, post-service 
treatment for a condition, or other possible association with military 
service.

Circumstances Where VA Will Refrain From or Discontinue Providing 
Assistance

    38 U.S.C. 5103A(a)(2) states that VA has no duty to assist a 
claimant if there is no reasonable possibility that VA assistance would 
help substantiate the claim. We propose in 38 CFR 3.159(d) that VA will 
refrain from providing assistance if the substantially complete 
application for benefits indicates that there is no reasonable 
possibility that VA assistance would help substantiate the claim. We 
propose in addition that VA will discontinue providing assistance, such 
as providing a VA examination, when the evidence obtained shows that 
there is no reasonable possibility that the further assistance would 
help substantiate the claim.
    We propose, in addition, to specify three situations in which VA 
will refrain from providing assistance when the claimant has submitted 
a substantially complete application. The first situation would involve 
a claimant applying for a benefit for which he or she is not legally 
eligible. Examples of such claims are veterans who lack wartime service 
applying for pension or veterans who have dishonorable discharges 
applying for any VA benefit. A second situation would involve a claim 
that, on its face, is inherently incredible or clearly lacks merit. 
Such a claim would be incapable of substantiation. Examples of that 
type of claim would be a compensation claim for prostate cancer from a 
female veteran, a claim for ovarian cancer from a male veteran. There 
may be other claims, as well, in which the claimant asserts an etiology 
for a claimed condition that would be inherently incredible. The third 
situation would involve a claim for a benefit to which the claimant is 
not entitled as a matter of law. Examples of such claims are ones for 
compensation for a disability that is the result of willful misconduct 
or a claim for service connection for alcoholism or drug addiction.

Duty To Notify Claimant of Inability To Obtain Records

    38 U.S.C. 5103A also requires VA to (1) notify the claimant that it 
is unable to obtain relevant records, (2) identify the records it 
cannot obtain, (3) briefly explain the efforts it made to obtain them, 
and (4) describe any further action VA will take with respect to the 
claim. We propose in Sec. 3.159(e)(1) that VA would provide the 
claimant written or oral notice that it is unable to obtain specific 
records when it makes its final request for relevant records or after 
it has exhausted efforts and is preparing to decide the claim.
    We believe that, in order to make an accurate factual determination 
regarding a claimant's entitlement to veterans benefits, VA must have 
before it all relevant records of which it is aware and which are 
obtainable. Therefore, we propose in Sec. 3.159(e)(2) that, if VA 
becomes aware of relevant records but is unable to obtain the records 
because the claimant has not authorized their release, VA would notify 
the claimant of the existence of the records and its inability to 
obtain them and request that the claimant provide VA with a release for 
the records. If the claimant does not provide a release, VA would 
request that the claimant obtain the relevant documents and submit them 
to VA. If VA does not receive the requested documents, the claim may be 
denied.

Reopened Claims and New and Material Evidence

    VA proposes to assist claimants in the submission of new and 
material evidence to reopen a finally adjudicated claim, by requesting 
existing records reasonably identified by the claimant, on the 
claimant's behalf.
    VA decisions on claims for benefits are final, to a certain extent. 
If the Board of Veterans' Appeals (Board) disallows a claim, the claim 
may not thereafter be reopened and allowed and a claim based upon the 
same factual basis may not be considered, except as provided in 38 
U.S.C. 5108. 38 U.S.C. 7104(b). Section 5108 provides that, if new and 
material evidence is presented or secured with respect to a claim which 
has been disallowed, VA shall reopen the claim and review the former 
disposition of the claim.'' Not only Board decisions are final; 
decisions of the agency of original jurisdiction can become final too. 
If an action or determination of an agency of original jurisdiction is 
not timely appealed, the action or determination becomes final and the 
claim may not thereafter be reopened or allowed, except as provided. 38 
U.S.C. 7105(c); 38 CFR 3.104(a). Final decisions by an agency of 
original jurisdiction are also subject to reopening if new and material 
evidence is presented or secured. Suttman v. Brown, 5 Vet. App. 127, 
135 (1993) (section 7105(c) finality also subject to exception in 
section 5108).
    Nothing in 38 U.S.C. 5103A requires VA to reopen a disallowed claim 
unless new and material evidence is presented or secured, as provided 
by section 5108. 38 U.S.C. 5103A(f). However, nothing in section 5103A 
precludes VA from providing a claimant such assistance in 
substantiating a claim as VA considers appropriate. 38 U.S.C. 5103A(g). 
VA considers it appropriate to provide some assistance to claimants who 
are attempting to reopen a finally denied claim with new and material 
evidence. However, given section 5103A(f)'s express preservation of the 
finality of VA decisions, we propose to provide less assistance in 
attempts to reopen previously disallowed claims than we would in an 
original claim or a claim that is actually reopened. Accordingly, we 
propose to provide in such casesattempts to reopen claims the 
assistance described below.
    Generally, in attempts to reopen a previously disallowed claim, VA 
would help a claimant to obtain existing records from Federal agencies 
or departments such as VA treatment or examination records or records 
from the Social Security Administration, provided that the claimant has 
submitted sufficient information to identify and locate the records. VA 
also proposes to provide assistance in requesting existing records from 
non-Federal sources, such as private physicians. VA considers this 
appropriate assistance because it would require minimal VA effort and 
expense to obtain these records.
    VA will not, however, provide a medical examination or obtain a

[[Page 17838]]

medical opinion in an attempt to reopen a previously disallowed claim. 
VA considers this inappropriate assistance because it would require 
substantial effort and expense without any assurance that the created 
evidence would in fact be new and material. Although VA is willing to 
help a claimant to obtain existing records based on a claimant's 
allegation that such records are new and material evidence, we do not 
want to expend our limited resources on ``fishing expeditions'' to 
create evidence based on a claimant's hopes that such evidence would 
prove to be new and material. If new evidence is presented or secured, 
VA would reopen the previously disallowed claim and provide a medical 
examination or obtain a medical opinion as provided in proposed section 
3.159(c)(4).
    We propose to clarify the definition of ``new and material 
evidence'' in 38 CFR 3.156(a) to state that ``new evidence'' means 
existing evidence not previously submitted to agency decisionmakers, 
that is neither cumulative nor redundant of the evidence of record at 
the time of the last final denial of the claim. We also propose to 
state that ``material evidence'' means existing evidence that relates 
specifically to the reason why the prior claim was last denied. By 
``existing evidence'' we mean evidence that is not newly generated by 
or with the help of VA as explained above. The proposed definition is a 
clarification of the current language that defines ``material 
evidence'' as evidence that ``bears directly and substantially upon the 
specific matter under consideration * * * and which by itself or in 
connection with evidence previously assembled is so significant that it 
must be considered in order to fairly decide the merits of the claim.'' 
Only evidence that relates to the reason why the claim was last denied 
can be evidence that is ``so significant that it must be considered in 
order to fairly decide the merits of the claim.'' Evidence relating to 
elements of proof that the claimant has already satisfied would be 
cumulative and redundant and would not be material evidence because it 
could not raise a reasonable possibility of substantiating the claim. 
This is consistent with the threshold established by Congress in the 
VCAA for VA's duty to assist.
    We also propose to revise 38 CFR 3.102, the regulation regarding 
the application of reasonable doubt, and Sec. 3.326, the regulation 
regarding VA examinations, to remove the references to well-grounded 
claims.

Comment Period

    Section 6(a)(1) of Executive Order 12866 indicates that, in most 
cases a comment period should be ``not less than 60 days.'' We believe 
that this rule is essential to the efficient and consistent 
implementation of the VCAA. In order to avoid delays in the development 
and adjudication of claims and potential confusion regarding the 
requirements of the new law, we believe it is important that final 
regulations be published expeditiously. The United States Court of 
Appeals for Veterans Claims (CAVC), for example, has noted that the 
Secretary of Veterans Affairs must prescribe regulations to implement 
the VCAA and that, pursuant to 38 U.S.C. 5103A(g), the Secretary may 
issue regulations providing more assistance than is required by law. 
Holliday v. Principi, 2001 U.S. App. Vet. Claims LEXIS 125, at *28. As 
a result, the CAVC has concluded that, if it were to issue a decision 
as to the applicability of the VCAA, it would risk abridging or 
usurping the Secretary's authority to implement the law as he sees fit 
and would be acting as an executive agency responsible for promulgating 
regulations rather than as a reviewing judicial tribunal. Id., at *34-
35. Thus, under this analysis, virtually every case pending on the 
CAVC's docket may have to be remanded to VA for a determination as to 
the applicability of the VCAA until these regulations become final. For 
this reason, we have shortened the comment period for this rulemaking 
action to 30 days.

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 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 amendment will have no 
consequential effect on State, local, or tribal governments.

Executive Order 12866

    This proposed rule has been reviewed by the Office of Management 
and Budget under Executive Order 12866.

Paperwork Reduction Act

    All collections of information under the Paperwork Reduction Act 
(44 U.S.C. 3501-3520) referenced in this proposed rule have existing 
OMB approval as forms. No changes are made in this proposed rule to 
those collections of information.

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 they are defined in the Regulatory 
Flexibility Act, 5 U.S.C. 601-612. This action 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 sections 603 and 604.
    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: March 5, 2001.
Anthony J. Principi,
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. 3.102  [Amended]

    2. In Sec. 3.102, the fifth sentence is amended by removing 
``evidence; the claimant is required to submit evidence sufficient to 
justify a belief in a fair and impartial mind that the claim is well 
grounded.'' and adding, in its place, ``evidence.''.
    3. Section 3.156(a) and its authority citation are revised to read 
as follows:


Sec. 3.156  New and material evidence.

    (a) A claimant may reopen a finally adjudicated claim by submitting 
new and material evidence. New evidence means existing evidence not 
previously submitted to agency decisionmakers. Material evidence means 
existing evidence that relates specifically to the reason why the claim 
was last denied. New and material evidence can be neither cumulative 
nor redundant of the evidence of record at the time of the last prior 
final denial of the claim sought to be reopened, and must raise a 
reasonable possibility of substantiating the claim.



[[Page 17839]]


    Authority: (38 U.S.C. 501, 5103A(f), 5108)
* * * * *
    4. Section 3.159 and its authority citation are revised to read as 
follows:


Sec. 3.159  Department of Veterans Affairs assistance in developing 
claims.

    (a) Definitions. For purposes of this section, the following 
definitions apply:
    (1) Competent medical evidence means evidence provided by a person 
who is qualified through education, training or experience to offer 
medical diagnoses, statements, or opinions. Competent medical evidence 
may also mean statements conveying sound medical principles found in 
medical treatises. It would also include statements contained in 
authoritative writings such as medical and scientific articles and 
research reports or analyses.
    (2) Competent lay evidence means any evidence not requiring that 
the person offering the evidence have specialized education, training, 
or experience. Lay evidence is competent if it is provided by a person 
who has knowledge of facts or circumstances and conveys matters that 
can be observed and described by a lay person.
    (3) Substantially complete application means an application 
containing the claimant's name; his or her relationship to the veteran, 
if applicable; service information, if applicable; the benefit claimed 
and any medical condition(s) on which it is based; the claimant's 
signature; and in claims for nonservice-connected disability or death 
pension and parents' dependency and indemnity compensation, a statement 
of income. A substantially complete application includes a complete 
application.
    (4) For purposes of paragraph (c)(4)(i), event means a potentially 
harmful occurrence such as would be associated with a particular duty 
assignment or place of duty.
    (b) VA's duty to notify claimants of necessary information or 
evidence. (1) If VA receives a complete or substantially complete 
application for benefits, it will notify the claimant of any 
information and medical or lay evidence that is necessary to 
substantiate the claim. VA will request that the claimant provide any 
evidence in the claimant's possession that pertains to the claim. VA 
will also inform the claimant which information and evidence, if any, 
that the claimant is to provide to VA and which information and 
evidence, if any, that VA will attempt to obtain on behalf of the 
claimant. If VA does not receive the information and evidence requested 
from the claimant within one year of the date of the notice, VA cannot 
pay or provide any benefits based on that application. If the claimant 
has not responded to the request within a reasonable period of time, VA 
may decide the claim prior to the expiration of the one-year period 
based on all the information and evidence contained in the file, 
including information and evidence it has obtained on behalf of the 
claimant. If VA does so, however, and the claimant subsequently 
provides the information and evidence within one year of the date of 
the request, VA must readjudicate the claim.

(Authority: 38 U.S.C. 5103)

    (2) If VA receives an incomplete application for benefits, it will 
notify the claimant of the information necessary to complete the 
application and will defer assistance until the claimant submits this 
information.

(Authority: 38 U.S.C. 5102(b), 5103A(3))

    (c) VA's duty to assist claimants in obtaining evidence. Upon 
receipt of a substantially complete application for benefits, VA will 
make reasonable efforts to help a claimant obtain evidence necessary to 
substantiate the claim. In addition, VA will give the assistance 
described in paragraphs (c)(1), (c)(2), and (c)(3) to an individual 
attempting to reopen a finally decided claim. VA will not pay any fees 
charged by a custodian to obtain records requested.
    (1) Obtaining records not in the custody of a Federal department or 
agency. VA will make reasonable efforts to obtain relevant records not 
in the custody of a Federal department or agency, to include records 
from state or local governments, private medical care providers, 
current or former employers, and other non-Federal governmental 
sources. Such reasonable efforts will generally consist of an initial 
request for the records and, if the records are not received, at least 
one follow-up request. A follow-up request is not required if a 
response to the initial request indicates that the records sought do 
not exist or that a follow-up request for the records would be futile. 
If VA receives information showing that subsequent requests to this or 
another custodian could result in obtaining the records sought, then 
reasonable efforts will include an initial request and, if the records 
are not received, at least one follow-up request to the new source or 
an additional request to the original source.
    (i) The claimant must cooperate fully with VA's reasonable efforts 
to obtain relevant records from non-Federal agency or department 
custodians. The claimant must provide enough information to identify 
and locate the existing records, including the person, company, agency, 
or other custodian holding the records; the approximate time frame 
covered by the records; and, in the case of medical treatment records, 
the condition for which treatment was provided. The claimant's failure 
to do so may, depending on the evidence of record, result in a denial 
of the benefit sought.
    (ii) If necessary, the claimant must authorize the release of 
existing records in a form acceptable to the person, company, agency, 
or other custodian holding the records. The claimant's failure to do so 
may, depending on the evidence of record, result in a denial of the 
benefit sought.

(Authority: 38 U.S.C. 5103A(b), (f), and (g))

    (2) Obtaining records in the custody of a Federal department or 
agency. VA will make as many requests as are necessary to obtain 
relevant records from a Federal department or agency. These records 
include but are not limited to military records, including service 
medical records; medical and other records from VA medical facilities; 
records from non-VA facilities providing examination or treatment at VA 
expense; and records from other Federal agencies, such as the Social 
Security Administration. VA will end its efforts to obtain records from 
a Federal department or agency only if VA concludes that the records 
sought do not exist or that further efforts to obtain those records 
would be futile. Cases in which VA may conclude that no further efforts 
are required include those in which the Federal department or agency 
advises VA that the requested records do not exist or the custodian 
does not have them.
    (i) The claimant must cooperate fully with VA's reasonable efforts 
to obtain relevant records from Federal agency or department 
custodians. If requested by VA, the claimant must provide enough 
information to identify and locate the existing records, including the 
custodian or agency holding the records; the approximate time frame 
covered by the records; and, in the case of medical treatment records, 
the condition for which treatment was provided. In the case of records 
requested to corroborate a claimed stressful event in service, the 
claimant must provide information sufficient for the records custodian 
to conduct a search of the corroborative records. The claimant's 
failure to do so may, depending on the evidence of record, result in a 
denial of the benefit sought.
    (ii) If necessary, the claimant must authorize the release of 
existing records in a form acceptable to the custodian or agency 
holding the records. The

[[Page 17840]]

claimant's failure to do so may, depending on the evidence of record, 
result in a denial of the benefit sought.

(Authority: (38 U.S.C. 5103A(b), (f), and (g))

    (3) Obtaining records in compensation claims. In a claim for 
disability compensation, VA will make efforts to obtain the claimant's 
service medical records, if relevant to the claim; other relevant 
records pertaining to the claimant's active military, naval or air 
service that are held or maintained by a governmental entity; VA 
medical records or records of examination or treatment at non-VA 
facilities authorized by VA; and any other relevant records held by any 
Federal department or agency. The claimant must provide enough 
information to identify and locate the existing records including the 
custodian or agency holding the records; the approximate time frame 
covered by the records; and, in the case of medical treatment records, 
the condition for which treatment was provided. The claimant's failure 
to do so may, depending on the evidence of record, result in a denial 
of the benefit sought.

(Authority: 38 U.S.C. 5103A(c), (f), and (g))

    (4) Providing medical examinations or obtaining medical opinions. 
(i) In a claim for disability compensation, VA will provide a medical 
examination or obtain a medical opinion based upon a review of the 
evidence of record if VA determines it is necessary to decide the 
claim. A medical examination or medical opinion is necessary if the 
evidence of record does not contain sufficient competent medical 
evidence to decide the claim, but:
    (A) Contains competent lay or medical evidence of a current 
diagnosed disability or persistent or recurrent symptoms of disability; 
and
    (B) Establishes that the veteran suffered an event, injury or 
disease in service; and
    (C) Indicates that the claimed disability or symptoms may be 
associated with the established event, injury, or disease in service or 
with another service-connected disability.
    (ii) Paragraph (4)(i)(C) of this section could be satisfied by 
competent evidence showing continuity of symptoms of a disability since 
the veteran's release from active duty, post-service treatment for a 
condition, or other possible association with military service.
    (iii) If new and material evidence is presented or secured, a 
finally adjudicated claim will be reopened and paragraph (c)(4) of this 
section will be applied to the reopened claim.

(Authority: 38 U.S.C. 5103A(d), (f), and (g))

    (d) Circumstances where VA will refrain from or discontinue 
providing assistance. VA will refrain from providing assistance in 
obtaining evidence for a claim if the substantially complete 
application for benefits indicates that there is no reasonable 
possibility that any assistance VA would provide to the claimant would 
substantiate the claim. VA will discontinue providing assistance in 
obtaining evidence for a claim if the evidence obtained indicates that 
there is no reasonable possibility that the further assistance would 
substantiate the claim. Circumstances in which VA will refrain from 
providing assistance in obtaining evidence include, but are not limited 
to:
    (1) An application showing the claimant is not eligible for the 
benefit sought because of lack of qualifying service, lack of veteran 
status, or other lack of legal eligibility;
    (2) An application in which the claimant asserts an inherently 
incredible claim or one that clearly lacks merit; and
    (3) An application requesting a benefit to which the claimant is 
not entitled as a matter of law.

(Authority: 38 U.S.C. 5103A(a)(2))

    (e) Duty to notify claimant of inability to obtain records. (1) If 
VA makes reasonable efforts to obtain relevant non-Federal records but 
is unable to obtain them, or after continued efforts to obtain Federal 
records concludes that it is reasonably certain they do not exist or 
further efforts to obtain them would be futile, VA will provide the 
claimant with oral or written notice of that fact. For non-Federal 
records requests, VA may provide the notice at the same time it makes 
its final attempt to obtain the relevant records. The notice must 
contain the following information:
    (i) The identity of the records VA was unable to obtain;
    (ii) An explanation of the efforts VA made to obtain the records;
    (iii) A description of any further action VA will take regarding 
the claim, including, but not limited to, notice that VA will decide 
the claim based on the evidence of record unless the claimant submits 
the records VA was unable to obtain; and
    (iv) A notice that the claimant is ultimately responsible for 
providing the evidence.
    (2) If VA becomes aware of the existence of relevant records before 
deciding the claim, VA will notify the claimant of the records and 
request that the claimant provide a release for the records. If the 
claimant does not provide any necessary release of the relevant records 
that VA is unable to obtain, VA will request that the claimant obtain 
the records and provide them to VA. If the claimant does not provide 
the relevant records which VA requested, the claim may be denied.

(Authority: 38 U.S.C. 5103A(b)(2))

    (f) For the purpose of the notice requirements in paragraphs (b) 
and (e) of this section, notice to the claimant means notice to the 
claimant or his or her fiduciary, if any, as well as to his or her 
representative, if any.


Sec. 3.326  [Amended]

    5. In Sec. 3.326(a), the first sentence is amended by removing 
``well-grounded''.

[FR Doc. 01-8303 Filed 4-3-01; 8:45 am]
BILLING CODE 8320-01-P