[Federal Register Volume 66, Number 168 (Wednesday, August 29, 2001)]
[Rules and Regulations]
[Pages 45620-45632]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-21802]
[[Page 45620]]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AK69
Duty To Assist
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: This document amends the Department of Veterans Affairs (VA)
adjudication regulations to implement the provisions of the Veterans
Claims Assistance Act of 2000 (the VCAA), which was effective 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
or who attempts to reopen a previously denied claim.
DATES: Effective Date: This rule is effective November 9, 2000, except
for the amendment to 38 CFR 3.156(a), which is effective August 29,
2001.
Applicability Dates: Except for the amendment to 38 CFR 3.156(a),
the second sentence of 38 CFR 3.159(c), and 38 CFR 3.159(c)(4)(iii),
the provisions of this final rule apply to any claim for benefits
received by VA on or after November 9, 2000, as well as to any claim
filed before that date but not decided by VA as of that date. The
amendment to 38 CFR 3.156(a), the second sentence of 38 CFR 3.159(c),
and 38 CFR 3.159(c)(4)(iii) apply to any claim to reopen a finally
decided claim received on or after August 29, 2001.
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, establishing new duties for VA in the claims development and
adjudication process. Congress also amended section 5107 by deleting
the concept of a ``well-grounded claim'' previously contained in that
section, while retaining the claimant's responsibility to present and
support a claim for benefits. In section 5103A(f) Congress stated that
nothing in section 5103A was to 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 section 5108.
In the Federal Register of April 4, 2001 (66 FR 17834), VA
published a proposal to amend 38 CFR 3.159 to implement the VCAA.
Interested persons were invited to submit comments on or before May 4,
2001. We received comments from various organizations and individuals,
including the American Legion and the National Veterans Legal Services
Program (jointly submitted); Paralyzed Veterans of America; Vietnam
Veterans of America; Disabled American Veterans; National Organization
of Veterans Advocates, Inc.; State of Florida Department of Veterans'
Affairs; the National Veterans Organization of America, Inc.; and other
interested persons.
Definitions
Competent Medical Evidence and Competent Lay Evidence. We proposed
to define ``competent medical evidence'' in Sec. 3.159(a)(1) to mean
evidence provided by a person who, through education, training, or
experience, is qualified to offer medical diagnoses, statements or
opinions. We proposed that the term would include statements conveying
sound medical principles found in medical treatises, medical and
scientific articles, and research reports or analyses. We proposed to
define ``competent lay evidence'' in Sec. 3.159(a)(2) to mean evidence
not requiring that the person offering it have specialized education,
training, or experience. We proposed that lay evidence be competent if
offered by someone who has knowledge of facts or circumstances and
conveys matters that can be described by a lay person. Accordingly,
while a lay person would not be competent or qualified to offer medical
opinions or to diagnose a medical condition, a claimant or other lay
person would be competent to describe symptoms of disability
experienced or observed in him/herself or others. These definitions are
consistent with those discussed in the legislative history of the VCAA,
146 Cong. Rec. H9915 (daily ed. Oct. 17, 2000) (explanatory statement
on H.R. 4864, as amended), and reflect existing case law governing the
VA claims adjudication process.
One commenter stated that we should delete these definitions as
unnecessary. Other commenters objected to defining these terms by
regulation, stating that to do so may lead VA adjudicators to reject
evidence preliminarily at the development stage, or to become ``mired
in technical assessments of the competency of the evidence.''
Consideration of the competency of the evidence is a necessary step
inherent in the adjudication process and one with which VA adjudicators
are already familiar. In our view, defining these terms fosters a
consistent application of these concepts in the adjudication process,
and ensures that a claimant is likewise aware of the types and nature
of evidence that will help substantiate a claim. Therefore, we have
retained these definitions in the regulatory language.
Two of these same commenters stated, alternatively, that because an
assessment of the competency of the evidence should always be a part of
VA's decision-making process, the inclusion of the word ``competent''
in the regulatory definition was therefore redundant. As previously
stated, we believe there is value in including this definition in the
regulatory language so that the claimant understands how this term,
used by Congress in the VCAA and discussed in the legislative history
of the Act, is applied to the evidence received by VA in support of a
claim.
Another commenter suggested that we revise the definition to state
that competent lay or medical evidence must also be ``credible.'' The
VCAA refers to competent evidence in the context of determining when a
VA medical examination or medical opinion is necessary. It does not
require that the evidence also be credible. Moreover, credibility is
what a VA decisionmaker determines in weighing the competent evidence
of record. It is not a requirement to be met in order for evidence to
be considered competent. Therefore, we have made no change to the
proposed regulatory language based on this comment.
With particular respect to the proposed definition of ``competent
medical evidence,'' one commenter thought the inclusion of medical
treatises and other similar authoritative medical writings resulted in
an overly broad definition that would lead VA decisionmakers to misuse
these materials by relying on them to deny a claim. However, VA
intentionally broadened this definition to encompass these materials
for the benefit of the claimant who may want to submit such materials,
which are commonly found on the Internet or from other sources, in
support of a claim. VA adjudicators have always had access to
authoritative medical writings, such as Dorland's Medical Dictionary
and the Merck Manual, as aids in deciding claims. In fact, 38 CFR
4.130, the schedule of ratings for mental disorders, specifically
incorporates the American Psychiatric Association's Diagnostic and
Statistical
[[Page 45621]]
Manual of Mental Disorders, Fourth Edition, (DSM IV) and refers to its
use as the basis for the schedule's nomenclature and diagnostic
criteria. In our view, both VA and the claimant benefit from the
claimant's awareness that ``competent medical evidence'' includes such
materials and that he or she may rely upon them to support a claim.
Therefore, no change to the regulatory language has been made based on
this comment.
Regarding the proposed definition of competent lay evidence
specifically, one commenter suggested that the regulation should
provide that VA would accept any lay statement as credible unless
rebutted by affirmative evidence. This suggestion reflects the manner
in which VA treated lay evidence on the issue of service incurrence in
determining whether a claim was well grounded. In pre-VCAA procedures,
lay evidence was generally accepted as credible for the purpose of
meeting the evidentiary threshold well-grounded-claim requirement of
showing that there was some evidence of an event, injury, or disease in
service. Nonetheless, when a well-grounded claim was considered on its
merits, VA claim procedures required that the decisionmaker consider
all the evidence of record, assigning appropriate weight to both the
lay and medical evidence. We note, as well, that if VA were to accept
any claimant's statement as true on its face to establish the existence
of an in-service event, injury or disease, without considering the
veteran's service records and other evidence, this practice would
conflict with the intent of 38 U.S.C. 1154(b). Under section 1154(b),
in the case of a combat veteran, VA must accept satisfactory lay
evidence of service incurrence or aggravation of an injury or disease
alleged to have been incurred or aggravated in combat service, if such
lay evidence is consistent with the circumstances, conditions, or
hardships of this combat service even if there is no official record of
such incurrence or aggravation. To permit every claimant, whether or
not he or she served in combat, and whether or not the claimed injury
is combat-related, to be able to establish in-service incurrence or
aggravation based on the claimant's lay statement alone would nullify
the meaning of section 1154(b). For all of these reasons, we have made
no change to the regulatory language based on these comments.
Another commenter wanted us to make clear that lay evidence
includes statements from the claimant. Not every claimant is a lay
person, however; claims for benefits are also filed by physicians and
nurses and their statements might qualify as competent medical
evidence. Therefore, we have not made the change to the proposed
regulatory language suggested by this comment.
One commenter stated that the regulation should indicate that lay
evidence may be considered as partially competent so that a VA
decisionmaker will not disregard a lay statement in its entirety if it
should also happen to contain a medical opinion which would not be
considered competent medical evidence. We decline to make any change in
the proposed regulatory language based on this comment because VA
decisionmakers are already obligated to consider all the evidence of
record, both lay and medical, when deciding a claim. This would require
VA adjudicators to consider those portions of the lay evidence
submitted that are competent. Amending the regulation as suggested by
this comment would result in an unnecessary redundancy.
Substantially Complete Application. We proposed to define a
``substantially complete application'' for benefits in Sec. 3.159(a)(3)
as one that contains the claimant's name; his or her relationship to
the veteran, if applicable; service information, if applicable; the
benefit claimed and any 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, we proposed that a substantially complete
application must also include a statement of income. This information
is generally sufficient for VA to identify the benefit claimed, and
determine whether the claimant is potentially eligible for it. This is
basic information VA needs in order to inform a claimant of the types
of information and evidence that would be required to substantiate a
claim.
One commenter suggested that we clarify the requirement of
``service information'' to state, instead, ``sufficient service
information for the VA to verify the duration and character of the
claimed service, if applicable.'' This commenter stated that such a
change would reflect VA's duty to assist the claimant in verifying
service lest the language of the regulation be interpreted to mean that
the claimant has the sole responsibility of establishing qualifying
service. This is a reasonable suggestion and reflects current VA
procedure. Therefore, the proposed regulatory definition of a
``substantially complete application'' in Sec. 3.159(a)(3) has been
changed to require ``sufficient information for VA to verify the
claimed service, if applicable.''
Another commenter objected to the proposed requirement that a
substantially complete application identify the benefit sought, on the
grounds that it should be VA's burden to determine all the benefits to
which a claimant is entitled. Under section 5107(a), it is the
claimant's responsibility to present and support a claim for benefits.
Requiring a claimant to identify the benefit sought is a necessary
prerequisite for VA to inform a claimant of the information and
evidence necessary to substantiate the claim for that benefit.
Therefore, no change to the proposed regulatory language has been made
based on this comment.
Another commenter indicated that the current application form, VA
Form 21-526, Veteran's Application for Compensation or Pension, is too
long, and that instead of defining ``substantially complete
application,'' VA should revise VA Form 21-526. This form is designed
to elicit more information than is required to file a substantially
complete application for benefits. However, if it was completed in its
entirety by the claimant, the information on the form would enable VA
to immediately begin development of the claim because it requests the
identity of all relevant evidence including medical treatment records.
VA would not then be required to send a letter to the claimant seeking
to identify relevant records as it must do if the claimant submits only
the minimal information necessary to file a substantially complete
application. This same commenter noted that the requirement in the
regulation for the signature of the claimant is at odds with the new
Veterans On-Line Application Process (VONAPP), a recent initiative of
VA, in which the agency accepts applications from claimants via the
Internet. Currently, VA still requires a signature from the claimant in
conjunction with such applications, although it is working
cooperatively with other agencies on establishing secure on-line
signature procedures. Therefore, we have not deleted this definition
per this commenter's suggestion.
Event In Service. We proposed to define the term ``event'' in
Sec. 3.159(a)(4) to mean a ``potentially harmful occurrence,'' such as
would be associated with a particular duty assignment or place of duty
because there are circumstances in service other than an injury or
disease that, under 38 U.S.C. 1110, could meet the criteria of an
``incurrence'' in service for
[[Page 45622]]
establishing entitlement to service-connected compensation benefits.
Nonetheless, some commenters asserted that the definition could be used
to winnow out claims when, in the opinion of the VA decisionmaker, the
in-service event is not perceived as ``potentially harmful.'' One
commenter stated that any occurrence in service could be seen as
``potentially harmful.''
We agree that many events in service could be seen as potentially
harmful, and that the assessment of whether an event in service was
harmful is necessarily a retrospective one. The definition of ``event''
was intended to be expansive and liberal, not limiting. As reflected in
the Supplementary Information accompanying the proposed rule, we
believed the term could encompass such ``events'' as exposure to
environmental hazards as well as such activities as parachute jumping
or being a forward observer, although these events did not result in a
specific injury or disease or aggravation of a pre-existing condition
while in service. In our view, it is helpful for a claimant to
understand that actual treatment in service for a medical condition is
not an absolute requirement to establish service connection, and we see
utility in defining this term for the claimant. To ensure its expansive
interpretation, we have revised the proposed regulatory language to
state: ``For purposes of paragraph (c)(4)(i), `event' means `one or
more incidents associated with places, types, and circumstances of
service giving rise to disability.' '' This definition is derived from
the language of section 1154(a) which provides that in claims for
service-connected compensation, consideration will be given to the
``places, types, and circumstances of such veteran's service as shown
by such veteran's service record, the official history of each
organization in which such veteran served, such veteran's medical
records, and all pertinent medical and lay evidence . . .'' This
definition would permit a VA decisionmaker to consider any number of
events, including exposures to environmental hazards as an event in
service that could have led to the claimed disability for which the
veteran seeks compensation.
Information. Some questions have been raised about the meaning of
the term ``information,'' which appears in the VCAA with respect to the
information necessary to complete an application and the information
and evidence necessary to substantiate a claim. Although the VCAA
itself does not define the term, its legislative history gives guidance
as to what Congress intended the term to mean. The history suggests
that Congress was referring to non-evidentiary facts that are necessary
to complete an application or to substantiate claim. See 146 Cong. Rec.
H9914, H9914 (daily ed. Oct. 17, 2000) (identifying Social Security
number and addresses as types of ``information'' necessary to
substantiate a claim). We have defined the term accordingly in
Sec. 3.159(a)(5).
VA's Duty To Notify Claimants of Necessary Information or Evidence
To Substantiate a Claim
We proposed in Sec. 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. As explained in the Supplementary Information,
it is clear from the legislative history of the VCAA that Congress
intended the notice to inform the claimant of the type of medical
evidence required, such as diagnoses or opinions as well as the type of
lay evidence that could be used to substantiate the claim. We further
proposed that 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. This proposed regulatory language mirrored the provisions in
section 5103A.
We received a comment stating that the regulation should require
VA, at the point in time when any evidence has been received in a claim
for compensation benefits, to determine whether that evidence satisfies
a necessary element of the claim and so advise the claimant. We decline
to revise the regulation to accommodate this suggestion; such a
regulatory requirement would necessitate multiple reviews of a single
claim and is administratively unworkable. It would, moreover, increase
the time it takes to decide a single claim, contributing to the backlog
of claims that await processing. The intent of Congress, as indicated
in the plain language of the VCAA and in the legislative history, is
that VA advise a claimant as to the evidence and information necessary
to substantiate a claim once VA receives a substantially complete
application. There is no indication that Congress intended that VA
review each claim and advise the claimant every time any evidence
relevant to it is received. When a decision is reached on a claim, the
rating decision document will cite all relevant evidence obtained and
considered, as well as any relevant evidence not obtained or
considered. That rating decision document is shared with the claimant
as part of our notification procedures.
Some commenters stated that the regulation should provide for
multiple notices to claimants of the information and evidence required
to be submitted by them. We have made no change based on this
suggestion because multiple notices would also be administratively
unworkable. Development of evidence is a shared responsibility, with
the claimant having the responsibility to present and support a claim
for benefits. 38 U.S.C. 5107(a). If VA provides a clear and
understandable notice to the claimant of what information and evidence
is necessary to substantiate the claim, and what portion of that
information and evidence VA will try to obtain, and what portion the
claimant is required to provide, we believe we have satisfied our
statutory duty. The notice will also provide the claimant with a phone
number to reach the VA employees actually handling the claim, and the
claimant can easily contact VA if he or she has additional concerns or
questions.
Other commenters stated that this regulatory provision should state
in more specific detail what will be required to be contained in every
notice to the claimant on what is needed to establish entitlement for
an individual claim. It is neither reasonable nor administratively
feasible to require by regulation the level of specificity advocated by
these commenters. The statutory notice required by the VCAA occurs at
an early point in the claims process when the claimant often has not
yet identified the evidence and information relevant to the claim, and
VA does not yet know what kinds of specific evidence to try to obtain
on behalf of the claimant. Without knowing what this evidence is, VA
cannot advise the claimant as to whose responsibility it will be to
obtain it. VA attempts to be as specific as it can in these notices.
However, the content of VA's notice to the claimant depends on the
amount of information and evidence VA already has regarding an
individual claim, and cannot precisely be defined by regulation.
Therefore, we have made no change to the proposed regulatory language
based on these comments.
Another commenter stated that the regulation should specifically
state that the notice required under section 5103(a) will be sent to
the claimant before a decision on the claim has been made. We agree and
have changed the language of Sec. 3.159(b)(1) to state that VA will
send the required statutory notice ``When VA receives a complete or
[[Page 45623]]
substantially complete application for benefits,'' rather than ``If VA
receives'' this application.
One commenter stated that the regulation should require VA to tell
the claimant a date certain for the submission of requested information
and evidence. It has always been VA's practice to advise the claimant
that he or she has one year to submit requested information or
evidence, although it was requesting that the claimant submit the
information or evidence within a shorter period of time. This procedure
enables VA to take action on the claim as quickly as possible. There
are no plans to change this procedure; VA will continue to advise a
claimant that he or she has one year to submit requested evidence, as
indicated in Sec. 3.159(b)(1) of the regulation. Additionally, we have
not revised the proposed regulatory language to reflect the period of
time in which VA will request that the claimant submit the requested
information or evidence, because VA would like to retain the
flexibility to vary the time frame it currently specifies if in the
future it is appropriate to do so.
One commenter stated that the regulation should provide that if VA
receives evidence that is inadequate to substantiate the claim, VA
should contact the claimant and give him or her the opportunity to
correct the inadequacy or bolster the evidence. In our view, the
regulatory language ensures that, with the claimant's cooperation, VA
will have all the evidence relevant to the claim before it at the time
a decision is made on the claim. Whether all of this relevant evidence
is sufficient to substantiate the claim is a determination that is not
made until the claim is adjudicated. If all relevant evidence was
obtained and considered but it is insufficient to establish
entitlement, VA issues a rating decision that informs the claimant of
the reason(s) why entitlement was not established. The claimant has the
opportunity to appeal the decision if it is unfavorable, which gives
the claimant the opportunity to present additional evidence to support
the appeal. This procedure is consistent with long-standing
adjudication practice which was not altered by the VCAA. Therefore, no
change to the regulatory language has been made based on this comment.
Mirroring the statutory language in section 5103(b), we proposed in
Sec. 3.159(b)(1) that, if VA does not receive the information and
evidence requested from the claimant within one year of the date of the
notice to the claimant, VA cannot pay or provide any benefits based on
that application. We proposed that VA would give a claimant a
reasonable period of time to respond to the request for information or
evidence, and if the claimant fails to respond, VA may decide the claim
based on all the information and evidence of record. Some decisions
would be grants of benefits while some decisions would be denials of
benefits. We stated at Sec. 3.159(b) that if the claimant subsequently
submitted the requested information or evidence within one year of the
date of VA's request for it, VA would make another decision. We note
that if such new information or evidence warrants a VA examination or
further development, VA would take whatever action is necessary to
reconsider the claim on this new information or evidence.
A number of commenters objected to this proposed provision for
various reasons. Some commenters felt that VA's failure to wait one
full year for a claimant to respond to a request for information or
evidence would discourage claimants from submitting the requested
evidence. This is speculation that VA's long-standing claims process
does not corroborate. In our experience, claimants are generally
cooperative with VA's efforts to help them substantiate their claims,
and respond to VA requests for information as quickly as possible, and
usually within the suggested time frame for doing so.
Other commenters interpreted section 5103(b) to provide that VA is
prohibited from deciding a claim without waiting for one full year for
information or evidence requested from the claimant. We believe such an
interpretation is unreasonable and would clearly contravene the intent
of the VCAA. Section 5103(b) is essentially an effective date provision
governing the earliest date from which benefits may be paid if a
claimant submits requested information and evidence. If interpreted as
preventing VA from taking award action until the one year period
expired, VA would be unable to grant a benefit when the claimant has
not responded to a request for information or evidence, even though VA
has obtained evidence establishing that the claimant is entitled to
that benefit. Moreover, the procedure as proposed is identical to the
manner in which VA had adjudicated claims for many years prior to the
VCAA and Morton v. West, 12 Vet. App. 477 (1999), remanded sub nom.
Morton v. Gober, 243 F.3d 557 (Fed. Cir. 2000), opinion withdrawn and
appeal dismissed, 14 Vet. App. 174, the court decision that led to the
passage of the VCAA. It is a procedure familiar to veterans' service
organizations and other veterans' advocates. Moreover, it is a
procedure that is responsive to the interests of Congress as well as
veterans' advocates in improving the timeliness of VA claims
processing. It is our experience that once evidence is not received in
response to a request for it, extending the time period does not
improve the chances of receiving it. Therefore, no change to the
proposed regulatory language has been made based on these comments.
However, we have made one change from the proposed rule. Rather
than allowing VA to proceed to decide a claim if the claimant has not
responded ``within a reasonable period of time'' to a request for
information or evidence or a request for any pertinent evidence in the
claimant's possession, the final rule will allow VA to proceed to
decide the claim if the claimant has not responded ``within 30 days''
of such requests. Specifying the period in which a claimant may respond
before VA may decide the claim allows every claimant to know in advance
the minimum time he or she will have to respond to VA's request. This
rule will not require VA to decide a claim 30 days after its request if
the claimant has not responded. It will merely allow VA to proceed on
the claim. Furthermore, a claimant need not necessarily provide the
evidence and information necessary to substantiate the claim within 30
days. A claimant would, however, be required to ``respond'' in some
fashion to VA's request in order to have VA delay further action on the
claim to give the claimant time to procure and submit the requested
information and evidence. Such a response could merely request VA to
wait beyond the 30-day period while the claimant attempts to gather
evidence.
One commenter stated that VA should decide a claim without waiting
for one year only if the claimant has fully responded to the request
for information or evidence, or if VA is granting the claim. We agree
that if VA can grant the claim based on the evidence of record it has
obtained without the information or evidence requested from the
claimant, it should do so as quickly as possible, and this regulation
is consistent with such action. To clarify that this evidence may
include VA medical examinations or opinions, we have revised the
regulatory language at Sec. 3.159(b)(1) to state that VA's decision on
the claim would be based on all ``information and evidence contained in
the file, including information and evidence it has obtained on behalf
of the claimant and any VA medical examinations or medical opinions.''
However, nothing in the VCAA expressly requires that VA keep a
claim
[[Page 45624]]
pending when the claimant has failed to respond to requests for
information or evidence within 30 days. 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 supporting evidence. Zarycki
v. Brown, 6 Vet. App. 91 (1993); Wamhoff v. Brown, 8 Vet. App. 517
(1996). Nonetheless, in cases where the claimant has failed to respond,
VA's case management system encourages personal phone contacts with the
claimant during which the veterans service center representative can
obtain by phone the information requested of the claimant. The case
management process also ensures that VA does not take any action on a
claim without first informing the claimant of what it needs to decide
the claim, and this assurance is reflected in the regulatory language
at Sec. 3.159(b)(1).
Even in cases where a claimant fails to respond to VA's request for
information and evidence, and the claim is denied based on the other
evidence of record, the claimant still has another one year after the
notification of the denial to appeal the denial of the claim. At that
time, he or she has another opportunity to submit the requested
evidence or new evidence. In addition, the claimant has a right to two
de novo reviews of the claim, one by a Decision Review Officer and
another by the Board of Veterans' Appeals. In our view, the claimant
suffers no prejudice from this long-standing practice of deciding a
claim based on the evidence of record when the claimant has failed to
timely respond to requests for information or evidence. Therefore, we
have maintained the proposed language codifying this procedure.
However, we have revised the proposed language to clarify that the one-
year deadline applies to both the information and evidence necessary to
substantiate the claim and that the claimant is to provide, as well as
to the evidence in the claimant's possession that pertains to the
claim.
A comment from one service organization stated that this regulation
failed to recognize that under Sec. 3.156(b) and Sec. 20.1304(b),
evidence submitted in connection with an appeal will be considered in
connection with the claim on appeal even if it was not received within
one year of the date VA requested it. We recognize that there is a
potential conflict between Secs. 3.156(b) and 20.1304(b) and section
5103(b)(1) and proposed Sec. 3.159(b)(1). A possible technical
amendment to section 5103(b)(1), which would eliminate the potential
conflict, is being considered. If the amendment does not materialize,
VA will have to address the implications section 5103(b)(1) has for
Secs. 3.156(b) and 20.1304(b).
One commenter stated that if VA decides a claim less than one year
from the time it requests information or evidence from a claimant, the
claimant may confuse the one-year time period in which to submit
requested information or evidence with the one year time period allowed
by statute for the claimant to file an appeal. See 38 U.S.C. 7105. The
one-year time periods are mandated by statute, and VA cannot alter them
by regulation. Therefore, no change to the regulatory language has been
made based on this comment.
Several commenters argued for a ``good cause'' exception for
extending the statutory one year time period for a claimant to submit
requested information or evidence, to accommodate claimants who are
``seriously disabled,'' mentally incompetent or who have other
hardships caused by poverty, lack of access to transportation, or
remoteness of domicile. Two commenters cited the difficulty experienced
by claimants who try to obtain service medical records to submit to VA
as the basis for a good cause exception. We have made no change to the
proposed regulatory language to accommodate such an exception. There is
no statutory authority permitting VA to create such an exception.
Section 5103(b)(1) states that if VA does not receive the information
or evidence to be provided by a claimant ``within one year from the
date of such notification, no benefit may be paid or furnished'' based
on that application. The statutory scheme created by Congress places
significant duties on VA to obtain the evidence relevant to a claim.
However, the VCAA reiterated that it is the claimant's duty to present
and support a claim for benefits, including the duty to submit
information and evidence as designated by VA in its statutory notice to
the claimant. Clearly, Congress envisioned one year to be an adequate
amount of time for the claimant to cooperate with VA's efforts by
submitting requested information or evidence. This information or
evidence would include such things as a stressor statement in a claim
for compensation for PTSD, or the name and address of treating
physicians. We also note in response to the commenters who cited the
difficulty of obtaining service medical records that in a compensation
claim it is the responsibility of VA rather than the claimant to obtain
those records if they are relevant to the claim and maintained or held
by a governmental entity.
Duty To Inform a Claimant When An Application Is Incomplete
We proposed in Sec. 3.159(b)(2) that, if VA receives an incomplete
application in which the claimant has failed to provide the minimal
information required to permit VA to begin development of the claim, we
would defer assistance until the claimant substantially completed the
application. This provision is plainly consistent with section
5103A(a)(3). Nevertheless, several commenters objected to this proposed
language, reflecting a misunderstanding that VA would deny claims
contained in an incomplete application. As the regulatory language
clearly reflects, VA will defer assistance on incomplete applications,
not deny them. Therefore, no change to the regulatory language based on
these comments has been made.
General Rule; VA's Duty To Assist a Claimant in Obtaining Evidence
We proposed in Sec. 3.159(c)(1) that VA will make reasonable
efforts to help a claimant obtain relevant records from non-Federal-
agency sources including records from private medical care providers,
current or former employers, and other non-Federal government sources.
We also proposed to retain the prior language of Sec. 3.159 providing
that VA will not pay any fees charged by a custodian of the records.
One commenter stated that VA should request congressional
authorization to pay for costs associated with obtaining private
medical records, a suggestion that is beyond the scope of this
rulemaking. Other commenters stated that VA should budget funds to pay
for private medical records, also an issue that is beyond the scope
herein. Two commenters stated that VA should make an exception and pay
for private records for claimants who are destitute or mentally
incompetent. Because VA has no statutory authority to expend funds in
this manner, we cannot create the exceptions suggested by these
comments.
Consistent with the language of section 5103A(b)(1), we proposed in
paragraphs (1)(i) and (2)(i) of Sec. 3.159(c) that the claimant must
adequately identify any Federal and non-Federal records, providing
enough information to enable VA to request them. We proposed that the
claimant should identify the custodian of the records, the approximate
time frame covered by them, and in the case of medical treatment
records, the condition for which treatment was provided. One
[[Page 45625]]
commenter stated that to require a claimant to identify the custodian
of the records would be ``unduly burdensome.'' One commenter cited the
difficulty this may present for claimants with memory problems. This
commenter stated that the claimant should be required to give VA only
enough information to allow VA to pursue retrieval of the records. We
agree that VA needs only enough information to try to retrieve the
record, but believe that the identity of the custodian of the record is
critical and reasonable information to request of the claimant. It
would be very impractical and inefficient for VA to try to obtain
records without knowing who has them. Therefore, no change to the
proposed regulatory language requiring the claimant to identify who has
custody of the records has been made based on this comment.
One commenter objected to the language of the regulation at
Sec. 3.159(c)(1)(i), (c)(2)(i), and (c)(3) that provides that a
claimant's failure to adequately identify existing records ``may result
in a denial of the benefit sought.'' In this commenter's view, this
language would encourage adjudicators ``to think in terms of denial of
the claim'' particularly because of the regulatory authority in
Sec. 3.159(b)(1) providing that VA may decide a claim on the evidence
of record if a claimant fails to timely respond to a request for
information or evidence. Although this proposed regulatory language
reflects a procedure that has been in place for many years, long before
the well-grounded claim process, we have deleted those sentences in
Sec. 3.159(c)(1)(i) and (ii), (c)(2)(i) and (ii), (c)(3), and (e)(2)
because they are unnecessary and state the obvious.
We also proposed that VA will assist claimants by requesting
relevant records in the custody of a Federal agency or department. One
commenter stressed that VA should limit such requests to only relevant
records. The proposed language already contained such a limitation, and
we decline to make any changes to the regulatory language that would
result in a redundancy. The same commenter suggested that VA should
limit the number of requests it makes for Federal records. However,
such a suggestion directly contravenes the express language of section
5103A(b)(3), requiring VA to continue to attempt to obtain these
records unless it is reasonably certain that they do not exist or until
further efforts to obtain them would be futile. Therefore, we have made
no change to the proposed rule to limit these efforts to a specific
number of attempts. One commenter suggested that VA should define the
word ``futile'' by regulation. However, the proposed regulatory
language at Sec. 3.159(c)(2) gave examples of circumstances in which VA
may conclude that further efforts would be futile and in our view there
is no need to further define such circumstances.
One commenter stated that the regulation should contain a ``good
faith extension'' of the one-year time period to secure Federal
records; however, there is no such one year time period in the VCAA and
the inclusion of a good faith exception is unnecessary because VA is
obligated to make repeated efforts to secure Federal records, which is
tantamount to ``good faith efforts.''
VA's Duty To Notify a Claimant of Its Inability to Obtain Records
When VA is unable to obtain relevant records after making
reasonable efforts to do so, section 5103A(b)(2) 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. In the case of requests for non-Federal
agency or department records, we proposed in Sec. 3.159(e)(1) that VA
would provide the claimant with written or oral notice of its inability
to obtain them at the time it makes its final request for them. In the
case of requests for non-Federal agency or department records, VA
proposed that it would provide oral or written notice after VA is
reasonably certain that the records do not exist or that further
efforts to try to obtain them would be futile.
We received several comments objecting to the proposal to provide
oral notice to claimants when VA is unable to obtain records as
proposed in Sec. 3.159(e). Some commenters stated that a message
conveyed orally is more subject to misunderstanding by a claimant than
a message conveyed by letter, and suggested that claimants prefer
contact by letter. However, in VA's 2000 Survey of Veterans'
Satisfaction with the VA Compensation and Pension Claims Process, 43.0
percent of respondents who were contacted by phone about their claim
indicated they were ``very satisfied `` with the claims process. Only
28.3 percent of the respondents who were not contacted by phone stated
that they were ``very satisfied'' with the process. In response to
another survey question, 31.8 percent of the respondents stated that
they preferred phone contact with VA during the claims process whereas
only 15.9 percent stated they preferred mail contact. We believe these
data support VA's decision to increase use of the phone to expedite the
claims process; not only is it practical, but claimants prefer it. In
our experience, phone contacts facilitate cooperation between VA and
the claimant and afford claimants the opportunity to ask questions
about their claims, including the status of VA's efforts to obtain
relevant records. While not all claimants are available by phone during
normal business hours, VA has found that when phone communications are
successful, claim processing is expedited, benefiting both VA and the
claimant. Ultimately, however, the decision on whether to communicate
with a claimant by phone, letter, or other means such as e-mail or
facsimile is based on the availability of the claimant and the
resources of the VA regional office handling the claim. This regulatory
language is intended to ensure the flexibility needed for efficient,
modern claims processing.
Moreover, nothing in the VCAA precludes oral notice. In fact, the
legislative history of the VCAA shows that Congress sought to
accommodate VA's plans to expand its options for communicating with
claimants beyond the written letter format. The legislative history of
the VCAA shows that Congress intentionally removed the words ``in
person or in writing'' from former 38 U.S.C. 5102 with respect to the
notice VA must give a claimant when the claimant has not submitted a
substantially complete application. 146 Cong. Rec. H9913, H9914 (daily
ed. Oct 17, 2000) (explanatory statement on H.R. 4864, as amended). The
removal of this language was intended to ``permit veterans and VA to
use current and future modes of communication.'' Thus, VA's proposal to
use oral communication is consistent with congressional intent.
Other commenters objected to the proposal to provide oral notice
because they perceived there would be no written documentation of this
notice. However, VA does make a record of such oral contacts. VA's case
management system uses a Claims Automated Processing System (CAPS), a
sophisticated electronic development and notice tracking system. Any
written or oral contact with a claimant is documented by date and
subject matter of the communication. Alternatively, when appropriate,
VA standard procedure requires that oral conversations with a claimant
be memorialized in writing, a procedure from which VA has no intention
to deviate. See Veterans Benefits Administration's Adjudication
[[Page 45626]]
Procedures Manual M21-1, Part III, para.11.17. Therefore we have added
a provision to Sec. 3.159(e) to require VA to make a record of any oral
notice conveyed to the claimant.
One commenter stated that the regulation should provide that if VA
learns that a requested medical record no longer exists, after making
reasonable efforts to obtain it, the claimant's lay evidence should be
accepted as credible evidence in its place. Because a claimant, if a
lay person, is not competent to provide medical evidence, we decline to
make the change suggested by this comment.
Medical Examinations and Medical Opinions at VA Expense
Under section 5103A(d)(1), 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.''
Section 5103A(d)(2) 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 proposed to implement section 5103A(d)(2) by providing in
Sec. 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 records from
Federal agency and non-Federal agency sources, the evidence of record
does not contain sufficient competent medical evidence to decide the
claim, but: (1) Contains competent lay or medical evidence of a current
diagnosed disability or of persistent or recurrent symptoms of
disability; (2) establishes that the veteran suffered an event, injury
or disease in service; and (3) indicates that the claimed disability or
symptoms may be associated with the established event, injury or
disease in service or another service-connected disability.
Several commenters objected to the similarity between the proposed
regulatory criteria for determining when a VA examination or opinion is
necessary and the former well-grounded-claim requirements. Although the
VCAA eliminated the need to establish a well-grounded claim to be
entitled to VA assistance, section 5103A(d)(2) specifies when an
examination or medical opinion will be considered necessary. Our
regulatory criteria are derived from the corresponding statutory
criteria at section 5103A(d)(2). Any similarity between our regulatory
criteria and the former well-grounded-claim requirements is due to the
similarity between the statutory criteria and the former well-grounded-
claim requirements. Therefore, no change was made to the proposed
regulatory language based on these comments.
One commenter stated that this regulatory language should expressly
state that lay testimony may be considered when determining if a
medical examination or medical opinion is necessary to decide the
claim. Because the term ``evidence'' in the proposed regulatory
language at Sec. 3.159(c)(4) encompasses lay testimony, we decline to
make the change suggested by this comment. Another commenter stated
that the ``information'' of record should also be considered in
determining whether a medical examination or medical opinion was
necessary. Accordingly, we have added the term ``information'' to the
proposed regulatory language in Sec. 3.159(c)(4)(i) to state, ``A
medical examination or medical opinion is necessary if the information
or evidence of record does not contain sufficient competent medical
evidence to decide the claim.''
Another commenter suggested a change in the proposed regulatory
language at Sec. 3.159(c)(4) to state that VA must provide an
examination or obtain a medical opinion where the ``evidence is
inconclusive to establish service connection.'' However, the language
of section 5103A(d)(2)(C) specifies that an examination or medical
opinion is necessary when the record does not contain sufficient
medical evidence. If the evidence lacking to establish service
incurrence cannot be supplied by a VA examination or medical opinion,
then providing an examination or obtaining an opinion would not benefit
the claim. Therefore, no change to the proposed regulatory language was
made based on this comment.
Several commenters objected to the proposed language requiring that
the evidence of record establish that there was an event, injury or
disease in service--the incurrence or aggravation element for service
connection. In summary, these commenters felt that this criterion was
too burdensome, and that this determination should be postponed until
after a VA examination has been provided or a medical opinion obtained.
Whether there was an injury or disease in service, or an event leading
to injury or disease, is a finding of fact made by the VA
decisionmaker. In our view, it is unreasonable to require a claimant to
report for an unnecessary VA examination or to ask a medical expert to
review the record when the evidence that would result (the examination
report or medical opinion) would not be competent evidence of the
incurrence or aggravation of a disease or injury in service. In such
cases, there is no reasonable possibility that the examination would
aid in substantiating the claim because it cannot provide the missing
evidence. In the case of medical opinion evidence, for instance, a
doctor cannot link a current condition to an injury or disease in
service unless that injury or disease is shown to have existed. The
evidence on this issue is independent of the VA examination or medical
opinion. Therefore, no change has been made to the regulatory language
to delete the criterion that the evidence establish an injury or
disease in service or an event leading to injury or disease.
One commenter stated that even where there is no evidence of an
event, injury or disease in service, a VA examination could establish
the incurrence of an injury in some claims. The commenter offered as an
example the case of a claim for compensation for a bone or muscle
injury, for which a doctor could offer the opinion that a currently
diagnosed arthritis is consistent with the veteran's statements
describing a fall in service. However, this doctor's opinion would
address the nexus, or relationship, between the current disability of
arthritis and the claimed injury in service; it would not establish the
underlying predicate issue, that is, whether the veteran, in fact, had
a fall in service. This same commenter further stated that for
disabilities that are presumed under law to have been incurred or
aggravated in service based on their manifestation during a specified
period after service, a physician's opinion could link the disability
to reported symptoms occurring during the presumptive period, thus
establishing the existence of the condition within the presumptive
period. VA agrees that, under those circumstances, a medical opinion
could link the claimed presumptive disability to symptoms shown by
other evidence to have occurred during a presumptive period. However, a
medical opinion given after the presumptive period could not itself
establish the presence of symptoms in the presumptive period. Section
3.307(c) ``Prohibition of certain presumptions'' prevents VA from
[[Page 45627]]
accepting a physician's opinion that a presumptive condition was
present and manifest to a compensable degree during an applicable
presumptive period based merely on the advanced stage of the current
disability without other evidence of the condition during service or
the presumptive period. Therefore, there would be no use in providing
an examination or obtaining an opinion in the absence of any evidence
of symptoms during the presumptive period.
Another commenter stated that the Supplementary Information
accompanying the proposed rule assumed that only contemporaneous
records such as service medical records could establish an in-service
incurrence of a disability, in disregard of the evidentiary value of
lay testimony. We have revised the proposed regulatory language to
clarify that lay evidence can also be considered in establishing that
an event, injury or disease occurred in service. Under
Sec. 3.159(c)(4), VA will review the ``information and lay and medical
evidence of record'' to determine if an examination or medical opinion
is necessary to decide the claim.
One commenter stated that in claims for secondary service
connection, (for a disability caused or aggravated by a service-
connected condition), where the primary condition is a presumptive one,
there will be no evidence of an ``event, injury or disease'' in service
that will meet the regulatory requirement. Since the proposed
regulatory language specifically provided for examinations or medical
opinions for secondary service connection conditions in
Sec. 3.159(c)(4)(i)(C), we have made no change based on this comment.
We received several comments on the requirement that the evidence
of record ``indicate[ ]'' that the claimed disability or symptoms ``may
be associated'' with service. Notably, neither Congress nor VA in its
proposed rule, required either competent evidence or medical evidence
of such an association as a prerequisite to a VA examination or medical
opinion. VA proposed to require only an indication by the evidence of
record. Nonetheless, some commenters misconstrued the proposed language
to require more. Other commenters expressed the opinion that this
regulatory language would require that the veteran ``establish'' that
an in-service event caused his or her current disability. However,
neither the proposed regulatory language nor the Supplementary
Information stated that the claimant must provide such evidence. In our
view, the VCAA's term, ``indicates,'' is a clear signal of Congress'
intent that the evidentiary record need not definitively establish such
an association or ``nexus'' between current disability and service;
rather, the mere indication of such a possible association based on all
the information and evidence of record would dictate the necessity of a
VA medical examination or opinion to clarify this evidentiary point.
Because the regulatory language proposed is consistent with this
interpretation, we made no change to the regulation based on these
comments.
In Sec. 3.159(c)(4)(ii), we stated circumstances in which such an
association with service may be shown, including continuity of symptoms
after discharge from service, post-service treatment for a condition,
or other possible association with service. Two commenters stated that
the examples should not include ``evidence showing continuity of
symptoms of a disability since the veteran's release from active duty''
because it is unnecessary in light of the continuity provisions of
Sec. 3.303(b). We agree, and have deleted this language from the final
rule.
Another commenter stated that symptoms of a presumptive condition
occurring during a presumptive period should satisfy the statutory
criteria that the evidence show that the current condition ``may be
associated'' with service. We agree that evidence of symptoms of a
presumptive condition manifested to a compensable degree during a
presumptive period would be evidence that a claimed presumptive
condition may be associated with service. In such cases, a VA
examination may be necessary to determine the degree of disability
caused by the presumptive condition. When the record shows evidence of
symptoms of a condition that may or may not be a presumptive one during
an applicable presumptive period, a VA medical examination or medical
opinion would be necessary because the medical evidence is insufficient
to determine if the symptoms are consistent with the currently
diagnosed condition.
We have revised the regulatory language at Sec. 3.159(c)(4)(i)(B)
to state that VA will consider a medical examination or opinion
necessary when the evidence of record does not contain sufficient
competent medical evidence to decide the claim, but contains competent
lay or medical evidence of a current diagnosed disability or persistent
or recurrent symptoms of disability, and establishes that the veteran
suffered an event, injury or disease in service, or has a disease or
symptoms of a disease manifested during an applicable presumptive
period.
Finally, one commenter stated that the regulation should expressly
state that a medical examination is not necessary when sufficient
medical evidence has been submitted to decide the claim. We have made
no change to the regulation based on this comment. The regulation
states circumstances in which VA will be required to provide a VA
medical examination or obtain a medical opinion. VA may certainly
schedule examinations in circumstances other than those set forth in
this regulation; section 5103(g) states that VA may provide more
assistance than required by statute. This regulation sets the floor,
not the ceiling for VA assistance in providing medical examinations or
obtaining medical opinions.
Circumstances Where VA Will Refrain From or Discontinue Providing
Assistance
Section 5103A(a)(2) states that VA has no duty to assist a claimant
if or when there is no reasonable possibility that VA assistance would
help substantiate the claim. We proposed to implement that statutory
provision in Sec. 3.159(d) by stating that VA will refrain from or
discontinue providing assistance when there is no reasonable
possibility that its assistance would substantiate a claim. We proposed
three examples of circumstances in which VA will refrain from providing
assistance: (1) When a claimant applies for a benefit for which he or
she is not legally eligible; (2) when a claimant asserts a claim that
is inherently incredible or clearly lacks merit; and (3) when a
claimant claims a benefit to which the claimant is not entitled as a
matter of law. In some cases, VA's determination that there is no
reasonable possibility of VA assistance substantiating the claim may be
made on the face of a substantially complete application. In other
cases, the futility of further assistance may not become apparent until
some assistance has been given. Therefore, we proposed that VA will
``discontinue'' assistance when the evidence obtained indicates that
there is no reasonable possibility that further assistance would
substantiate the claim.
One commenter stated that there is no reason to define the
statutory phrase, ``no reasonable possibility.'' We disagree. The term
is subject to varying interpretations, and it benefits both the
claimant and VA if VA defines the term and sets a standard.
One commenter objected to the first circumstance described, stating
that it should be VA's duty to help the
[[Page 45628]]
claimant establish legal eligibility for a benefit if eligibility is
not clear on the face of the application. As noted previously, we have
amended the definition of a ``substantially complete application'' to
indicate that it contains enough information for VA to verify service
and character of discharge, which VA would need to determine
eligibility. However, no amount of VA assistance can provide
eligibility for a benefit to a claimant who is in fact ineligible.
Therefore, we retain our proposed rule that VA will refrain from
assisting to obtain evidence if the information on a substantially
complete application indicates no reasonable possibility that VA
assistance will substantiate the claim because the claimant is not
legally eligible for the benefit.
We also received comments to the proposed second circumstance, that
is, when a claim is inherently incredible or clearly lacks merit. Some
commenters felt that VA would use this provision as a pretext to refuse
assistance for potentially meritorious claims. VA will not do that.
Some commenters stated that certain mentally disabled claimants might
assert claims that would seem ``inherently incredible'' when in
actuality these assertions may be manifestations of their mental
illness. The VCAA requires VA to notify a claimant of the information
and evidence necessary to substantiate a claim in all claims for which
a substantially complete application has been submitted, regardless of
whether VA is going to assist in obtaining evidence. If a VA
decisionmaker determines that a claim is inherently incredible, the
decisionmaker can request that the claimant submit information or
evidence as provided by section 5103(a) and Sec. 3.159(b)(1) that would
lead VA to conclude that it should provide assistance to substantiate
the claim. Moreover, the proposed rule would not preclude a claimant
from submitting information and evidence that might lead VA to change
its determination that there is no reasonable possibility that VA
assistance will help substantiate the claim.
Other commenters felt that ``clearly lacks merit'' was too vague a
term to be of useful guidance for either VA or a claimant. Others
stated objections to the term ``inherently incredible.'' We have
retained both terms in the final rule because they are not mutually
exclusive and cover different circumstances. It may not be clear that a
claim clearly lacks merit until VA has requested and received records
relevant to the claim, whereas it may be appropriate to conclude that a
claim is inherently incredible on its face based merely on the facts
asserted in the claim or after certain development. On this same issue,
one service organization commented that we should consider a standard
by which VA would provide assistance, ``unless it can affirmatively
determine that a medical expert could not find any association under
current medical or scientific knowledge.'' As a substitute for
``inherently incredible'' claims, we find merit in this suggestion, but
believe that the standard, as phrased, may be construed to permit the
VA adjudicator to apply his or her own unsubstantiated medical opinion.
Because this is contrary to long-standing veterans' law principles, we
have not revised the final regulatory language based on this comment.
One commenter stated that the third circumstance, ``no entitlement
under the law'' should be deleted, asserting that VA may develop such
claims and come up with evidence supporting entitlement under a new
legal theory. We decline to make the change in the proposed regulatory
language as suggested because this circumstance encompasses claims for
which there is no legal entitlement under any theory, such as claims
for compensation for a congenital or developmental condition.
Reopened Claims and New and Material Evidence
The VCAA states that nothing in section 5103A ``shall be construed
to require the Secretary to reopen a claim that has been disallowed
except when new and material evidence is presented or secured.'' On the
other hand, section 5103(g) provides that nothing in section 5103A
precludes VA from providing such other assistance as the Secretary
considers appropriate. Accordingly, we proposed to provide limited
assistance to claimants trying to reopen finally decided claims.
VA proposed that it would request any existing records from Federal
agencies or non-Federal agency sources, if reasonably identified by the
claimant, in order to assist the claimant to reopen his or her claim.
In our view, such assistance is appropriate because it could be
accomplished with minimal effort and expense, although it would be a
change from pre-VCAA procedures. These procedures arose from case law
that required a claimant to first submit new and material evidence
sufficient to reopen a claim before VA could assist in developing
additional evidence to substantiate it.
Given section 5103A(f)'s express preservation of the finality of VA
decisions, we proposed, however, to provide less assistance in attempts
to reopen final previously disallowed claims than for original claims
for compensation. We proposed that VA would not provide an examination
or obtain a medical opinion to create new evidence that may or may not
be material, given the substantial time, effort and expense involved in
the VA examination and medical opinion process. Some commenters
objected to this proposal on the grounds that it would disadvantage
persons whose previous claims were denied not on the merits but on the
basis that they were not well grounded, because many of these claimants
may not have had their claims fully developed. However, claimants whose
prior claims were denied as not well grounded would not be
disadvantaged, since a claim that was previously denied as not well
grounded should be easy to reopen compared to a claim denied on the
merits. If a claim was denied as not well grounded, it was denied
because of a lack of evidence relating to a fact necessary to establish
a claim. For example, a claim may have been denied as not well grounded
because there was no competent evidence that a veteran has a current
disability. If there were any competent evidence that the veteran did
have a current disability, that evidence would constitute new and
material evidence, which would reopen the claim.
Some commenters stated that VA should also provide a VA examination
or medical opinion to develop evidence to reopen a claim. This
regulation presumes that a claim that was finally decided on the merits
had been fully developed by VA, including a VA examination or medical
opinion where necessary, because under the provisions of prior section
5107(a), VA had a duty to assist a claimant who filed a well-grounded
claim. In our view, it is more than fair that VA impose some limit on
the expenditure of its finite resources in subsequent efforts to assist
a claimant substantiate a claim after it has once made reasonable
efforts to assist and the evidence failed to substantiate the claim.
Nevertheless, we have revised the proposed language of
Sec. 3.159(c)(4)(iii) to clarify that VA will consider providing an
examination or obtaining a medical opinion only if new and material
evidence is already presented or secured.
We also proposed to change the definition of ``new and material
evidence'' in conjunction with VA's proposal in Sec. 3.159 to define
what actions it will take to assist a claimant in submitting evidence
to reopen a finally denied claim. Several commenters objected to the
proposed
[[Page 45629]]
change in definition on the grounds that the VCAA did not address this
issue. However, in our view, it is helpful for the claimant to
understand the nature of the evidence that will reopen a claim, in
light of the fact that it will now be easier for a claimant to reopen a
claim because, unlike before, the claimant now will have VA assistance
in obtaining evidence that is potentially new and material. Therefore,
we have not withdrawn the proposed revision to Sec. 3.156 based on
these comments.
We proposed to redefine ``material'' evidence to mean ``existing
evidence that relates specifically to the reason why the claim was last
denied.'' Many commenters felt this language was too restrictive. We
agree, and therefore have revised the final regulatory language at
Sec. 3.156(a) in a manner that more accurately conveys the meaning
intended, to state that ``Material evidence means existing evidence
that . . . relates to an unestablished fact necessary to substantiate
the claim.''
One commenter objected to the proposed definition because it did
not provide that VA would review any evidence submitted as new and
material ``in connection with evidence previously assembled.'' This
commenter stated that this omission may negatively impact claims where
all the evidence of record may lead to a different conclusion on the
issue of whether new and material evidence had been submitted, than
does one piece of evidence in isolation. We agree and have changed the
regulatory language to state that ``Material evidence means existing
evidence that, by itself or when considered with previous evidence of
record, relates to an unestablished fact necessary to substantiate the
claim.''
We also proposed that new and material evidence ``must raise a
reasonable possibility of substantiating the claim,'' a requirement to
which several commenters objected. With respect to other claims for
benefits, the VCAA provides that VA assistance is required unless there
is no reasonable possibility that this assistance would aid in
substantiating the claim. We believe it is fair and reasonable to apply
the same standard--that there be a reasonable possibility that VA
assistance would help substantiate the claim--in determining whether a
claim has been reopened, triggering VA's full duty to assist by
providing a VA examination or obtaining a medical opinion. Therefore,
we have made no change to the proposed regulatory language based on
these comments.
One commenter stated that the regulation should be revised to state
specifically that new and material evidence could also be evidence that
supports a different legal theory for entitlement. However, VA
adjudicators are required to ``grant[] every benefit that can be
supported in law,'' under Sec. 3.103(a) which includes considering all
possible legal theories of entitlement in deciding a claim. The same
standard would apply in considering all legal theories applicable to
reopening a claim. Therefore, we have made no change to the regulatory
language based on this comment.
Additional Comments and Administrative Procedure Act
One commenter stated that VA should consider extending the comment
period for another 30 days. We decline to do so. We are unaware of any
comments other than those submitted and reviewed in this document.
These comments were extensive and detailed. We have attempted to
analyze these comments as quickly as possible to expedite the
development of this final rule. As noted in the Supplementary
Information accompanying the proposed rule, the United States Court of
Appeals for Veterans Claims has concluded that the Secretary's
authority to implement the VCAA could be usurped by the court's
issuance of decisions as to the applicability of the VCAA, and as a
consequence, judicial review of Board of Veterans' Appeals decisions on
claims affected by the VCAA is nearing a standstill. Clearly, it is
necessary to issue the final rule rather than extend the comment period
another 30 days. Further, for these reasons, we have found good cause
for not applying the delayed effective date provisions of 5 U.S.C. 553.
Another commenter suggested that we expressly incorporate the
``benefit of the doubt'' rule in Sec. 3.159. However, since Sec. 3.102
already addresses this issue, and is not in conflict with Sec. 3.159,
we decline to change the regulation as suggested.
Scope and Applicability
As indicated by the proposal that these regulations be contained in
38 CFR part 3, this final rule applies only to claims for benefits that
are governed by part 3. These benefits include compensation, pension,
dependency and indemnity compensation, burial benefits, monetary
benefits ancillary to those benefits, and special benefits.
These amendments are effective November 9, 2000, except for the
amendment to 38 CFR 3.156(b), which is effective August 29, 2001.
Except for the amendment to 38 CFR 3.156(a), the second sentence of 38
CFR 3.159(c), and 38 CFR 3.159(c)(4)(iii), the provisions of this rule
merely implement the VCAA and do not provide any rights other than
those provided by the VCAA. Therefore, we will apply those provisions
to any claim for benefits received by VA on or after November 9, 2000,
the VCAA's enactment date, as well as to any claim filed before that
date but not decided by VA as of that date.
The second sentence of Sec. 3.159(c) and Sec. 3.159(c)(4)(iii),
which relate to the assistance VA will provide to a claimant trying to
reopen a finally decided claim, provide rights in addition to those
provided by the VCAA. Authority to provide such additional assistance
is provided by 38 U.S.C. 5103A(g), which provides that nothing in
section 5103A shall be construed to preclude VA from providing such
other assistance to a claimant in substantiating a claim as VA
considers appropriate. Because we have no authority to make these
provisions retroactively effective, they are applicable on the date of
this final rule's publication. Accordingly, we will apply the second
sentence of Sec. 3.159(c), Sec. 3.159(c)(4)(iii), and the amendment to
38 CFR 3.156(a), to any claim for benefits received by VA on or after
August 29, 2001. We note that any future exercises by the Secretary of
the discretionary authority granted by 38 U.S.C. 5103A(g) will be
accomplished through rules published in accordance with Administrative
Procedure Act rulemaking procedures.
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 final 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 final rule have existing OMB
approval as forms. No changes are made in this final 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
[[Page 45630]]
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: July 30, 2001.
Anthony J. Principi,
Secretary of Veterans Affairs.
For the reasons set forth in the preamble, 38 CFR part 3 is amended
as follows:
PART 3--ADJUDICATION
Subpart A--Pension, Compensation, and Dependency and Indemnity
Compensation
1. The authority citation for part 3, subpart A continues to read
as follows:
Authority: 38 U.S.C. 501(a), unless otherwise noted.
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, by itself or when considered with previous
evidence of record, relates to an unestablished fact necessary to
substantiate the claim. 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.
(Authority: 38 U.S.C. 501, 5103A(f), 5108)
* * * * *
4. Section 3.159 is 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 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.
(3) Substantially complete application means an application
containing the claimant's name; his or her relationship to the veteran,
if applicable; sufficient service information for VA to verify the
claimed service, 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.
(4) For purposes of paragraph (c)(4)(i) of this section, event
means one or more incidents associated with places, types, and
circumstances of service giving rise to disability.
(5) Information means non-evidentiary facts, such as the claimant's
Social Security number or address; the name and military unit of a
person who served with the veteran; or the name and address of a
medical care provider who may have evidence pertinent to the claim.
(b) VA's duty to notify claimants of necessary information or
evidence. (1) When 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 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. VA will also request that the claimant provide
any evidence in the claimant's possession that pertains to the claim.
If VA does not receive the necessary 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 30 days, 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 and any VA
medical examinations or medical opinions. 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 provide 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
[[Page 45631]]
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.
(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.
(Authority: 38 U.S.C. 5103A(b))
(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.
(ii) If necessary, the claimant must authorize the release of
existing records in a form acceptable to the custodian or agency
holding the records.
(Authority: 38 U.S.C. 5103A(b))
(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.
(Authority: 38 U.S.C. 5103A(c))
(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
information and 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;
(B) Establishes that the veteran suffered an event, injury or
disease in service, or has a disease or symptoms of a disease listed in
Sec. 3.309, Sec. 3.313, Sec. 3.316, and Sec. 3.317 manifesting during
an applicable presumptive period provided the claimant has the required
service or triggering event to qualify for that presumption; 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) could be satisfied by competent evidence
showing post-service treatment for a condition, or other possible
association with military service.
(iii) Paragraph (c)(4) applies to a claim to reopen a finally
adjudicated claim only if new and material evidence is presented or
secured.
(Authority: 38 U.S.C. 5103A(d))
(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 further assistance would
substantiate the claim. Circumstances in which VA will refrain from or
discontinue providing assistance in obtaining evidence include, but are
not limited to:
(1) The claimant's ineligibility for the benefit sought because of
lack of qualifying service, lack of veteran status, or other lack of
legal eligibility;
(2) Claims that are inherently incredible or clearly lack 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. VA will make a
record of any oral notice conveyed to the claimant. For non-Federal
records requests, VA may provide the notice at the same time it makes
its final attempt to obtain the relevant records. In either case, 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
[[Page 45632]]
will request that the claimant obtain the records and provide them to
VA.
(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.
(Authority: 38 U.S.C. 5102(b), 5103(a))
Sec. 3.326 [Amended]
5. In Sec. 3.326(a), the first sentence is amended by removing
``well-grounded''.
[FR Doc. 01-21802 Filed 8-28-01; 8:45 am]
BILLING CODE 8320-01-P