[Federal Register Volume 67, Number 45 (Thursday, March 7, 2002)]
[Rules and Regulations]
[Pages 10330-10332]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-5376]
[[Page 10330]]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AK00
Post-Traumatic Stress Disorder Claims Based on Personal Assault
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: This document amends the Department of Veterans Affairs (VA)
adjudication regulations concerning the type of evidence that may be
relevant in corroborating a veteran's statement regarding the
occurrence of a stressor in claims for service connection of post-
traumatic stress disorder (PTSD) resulting from personal assault. This
amendment provides that evidence other than the veteran's service
records may corroborate the occurrence of the stressor. This amendment
also requires that VA not deny PTSD claims based on personal assault
without first advising claimants that evidence from sources other than
the veteran's service records may help prove the stressor occurred.
These changes are necessary to ensure that VA does not deny such claims
simply because the claimant did not realize that certain types of
evidence may be relevant to substantiate his or her claim.
DATES: Effective Date: March 7, 2002.
FOR FURTHER INFORMATION CONTACT: Bill Russo, Regulations Staff,
Compensation and Pension Service (211), Veterans Benefits
Administration, 810 Vermont Avenue, NW., Washington, DC 20420,
telephone (202) 273-7211.
SUPPLEMENTARY INFORMATION: In a document published in the Federal
Register on October 16, 2000 (65 FR 61132-61133), VA proposed to amend
its adjudication regulations to provide that evidence other than a
veteran's service records may corroborate the veteran's assertion that
a stressor occurred in claims of PTSD based on personal assault, and
that VA may not deny such a claim without first advising the claimant
that evidence other than the veteran's service records may be submitted
to substantiate his or her claim. The comment period ended December 15,
2000. We received written comments from the Disabled American Veterans,
the National Organization of Veterans' Advocates, the Vietnam Veterans
of America, and two individuals. Based on the rationale set forth in
the proposed rule and in this document, we are adopting the provisions
of the proposed rule as a final rule with the changes discussed below.
Positive Response and Timely Efforts
One commenter stated that this amendment will be good for veterans
and only wished that it had been done sooner.
Other Stressor Types
One commenter asserted that the regulations should be clarified to
indicate that other types of in-service stressors (besides those listed
in Sec. 3.304(f)) could lead to PTSD. We agree and have made a
clarifying change in the introductory paragraph of Sec. 3.304(f).
Addition of Pregnancy Tests and Testing for Sexually Transmitted
Diseases
One commenter recommended that evidence of pregnancy tests and
testing for sexually transmitted diseases be included in the list of
examples of sources other than the veteran's service records that may
corroborate the veteran's assertion that a stressor occurred. The
commenter stated that such testing is a logical result in the aftermath
of a sexual assault and constitutes strong evidence that such an
assault occurred. We agree that these types of records are relevant
because they may indicate that a person has been recently assaulted. We
have therefore revised the regulation to specifically mention pregnancy
tests and tests for sexually transmitted diseases.
Review of Evidence by a Medical Professional
One commenter suggested adding the phrase ``mental health
professional'' to the last sentence of the proposed rule, which stated,
``VA may submit any evidence that it receives to an appropriate medical
professional for an opinion as to whether it indicates that a personal
assault occurred.'' The commenter stated that often personal assaults,
especially those of a sexual nature, go unreported. The commenter also
stated that often physical injuries heal before the victim seeks
assistance and that in these cases the only evidence of assault that
remains lies within the victim's psyche and a mental health
professional is more likely than a medical doctor to be able to discern
it.
We agree that the term ``medical professional'' should include
mental health professionals such as psychologists. We have therefore
amended the regulation to include mental health professionals.
Another commenter asserted that whether or not a stressor occurred
is a question of fact and not a medical question, and expressed concern
that asking a medical professional for an opinion regarding whether a
stressor occurred was in essence taking the fact-finding out of the
hands of the VA decisionmaker.
We believe that a determination as to whether a stressor occurred
is a factual question that must be resolved by VA adjudicators.
Nonetheless, an opinion from an appropriate medical or mental health
professional could be helpful in making that determination. Such an
opinion could corroborate the claimant's account of the stressor
incident. In certain cases, the opinion of such a professional could
help interpret the evidence so that the VA decisionmaker can better
understand it. Opinions given by such professionals are not binding
upon VA, but instead are weighed along with all the evidence provided.
Therefore, we make no change based on this comment.
Diagnosis of PTSD as Proof of Stressor
One commenter suggested that, given the nature of PTSD, a
diagnostician's acceptance of a veteran's account of the claimed in-
service stressor should be probative and sufficient evidence that the
claimed in-service stressor occurred. The commenter also stated that if
a diagnosis of PTSD is accepted by VA, the existence of the stressor
identified by the diagnostician must also be accepted. Finally, the
commenter urged VA to revise Sec. 3.304(f) to provide ``that a
competent and credible diagnosis of PTSD due to personal assault during
service will be accepted as proof of service connection in the absence
of evidence to the contrary.''
We believe that Sec. 3.304(f)(3) is consistent with current case
law. The U.S. Court of Appeals for Veterans Claims (CAVC) has held that
VA is not ``bound to accept [the claimant's] uncorroborated account''
of a stressor, nor to ``accept the social worker's and psychiatrist's
unsubstantiated * * * opinions that the alleged PTSD had its origins in
appellant's [military service].'' Wood v. Derwinski, 1 Vet. App. 190,
192 (1991). More recently, the CAVC stated that VA ``is not required to
accept doctors' opinions that are based upon the appellant's recitation
of medical history.'' Godfrey v. Brown, 8 Vet. App. 113, 121 (1995). In
diagnosing PTSD, doctors typically rely on the unverified stressor
information provided by the patient. Therefore, a doctor's recitation
of a veteran-patient's statements is no more probative than the
veteran-patient's statements made to VA. Therefore, VA is not required
to accept a doctor's diagnosis of PTSD due to a personal assault as
proof that the stressor occurred or that the PTSD is
[[Page 10331]]
service connected. If, however, VA finds that a doctor's diagnosis of
PTSD due to a personal assault is, as the commenter suggests,
``competent and credible'' and there is no evidence to the contrary in
the record, in all likelihood, such an opinion would constitute
competent medical evidence. For all of these reasons, we have made no
change to the regulatory language based on these comments.
Corroboration of Stressor
One commenter also expressed belief that the proposed rule is
contrary to 38 U.S.C. 1154(a) and 5107(b), 38 CFR 3.102, 3.303(a), and
3.304(b)(2), and Cartright v. Derwinski, 2 Vet. App. 24 (1991), because
it requires corroboration of the claimed stressor. The commenter stated
that, by statute, ``credible lay evidence alone is sufficient to meet a
veteran's burden of proof if not rebutted by a preponderance of
evidence.''
Section 1154(a) requires that VA regulations pertaining to service
connection provide that ``due consideration shall be given to the
places, types, and circumstances of [a] 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.'' Section 5107(b)
provides that VA must consider all information and lay and medical
evidence of record in adjudicating a claim for veterans benefits and
that ``[w]hen there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of a matter,
the Secretary shall give the benefit of the doubt to the claimant.''
Section 3.102 states that ``[t]he reasonable doubt doctrine is also
applicable even in the absence of official records, particularly if the
basic incident allegedly arose under combat, or similarly strenuous
conditions * * *.''
We do not agree with the commenter's conclusion that the referenced
statutes and regulation support the proposition that a veteran's sworn
statement is sufficient in all cases to establish that an alleged
personal assault occurred. Section 501(a) of title 38, United States
Code, authorizes the Secretary of Veterans Affairs to promulgate
regulations with respect to the nature and extent of proof and evidence
in order to establish entitlement to veterans benefits. Consistent with
that authority, VA has promulgated 38 CFR 3.304(f) requiring
corroborating evidence of the occurrence of the stressor in PTSD claims
except in certain circumstances in which the claimed stressor is
related to combat or to the veteran's prisoner-of-war experience.
Further, the CAVC held in Dizoglio v. Brown, 9 Vet. App. 163, 166
(1996), that, if the claimed stressor is not related to combat, a
``[veteran's] testimony, by itself, cannot, as a matter of law,
establish the occurrence of a noncombat stressor.'' While a veteran's
statement regarding an assault is certainly evidence that must be
considered by VA in adjudicating a PTSD claim, VA is obligated to
``review * * * the entire evidence of record,'' including ``all
pertinent medical and lay evidence,'' when making a determination
regarding service connection. 38 CFR 3.303(a); see 38 U.S.C. 1154(a);
see also 38 CFR 3.304(b)(2). Therefore, VA must look to see whether
other evidence in the record supports the occurrence of an in-service
stressor. The reasonable doubt doctrine referenced in 38 U.S.C. 5107(b)
and 38 CFR 3.102 comes into play when an approximate balance of
positive and negative evidence exists that does not satisfactorily
prove or disprove the claim. Thus, there must be a balance of positive
and negative evidence on an issue, including the issue of whether an
in-service stressor occurred, before the reasonable doubt doctrine is
relevant to a claim.
Combat Claims
As noted above, this final rule retains existing provisions
concerning the establishment of PTSD claims related to combat or
prisoner-of-war experience. Two commenters suggested changes to the
regulations concerning the establishment of PTSD claims related to
combat. These comments are beyond the scope of this rulemaking
proceeding since the proposed rule did not propose any substantive
changes concerning the combat provisions.
Authority Cited
In the proposed rule, we cited 38 U.S.C. 501(a) and 1154(b) as
authority for Sec. 3.304(f). One commenter was concerned with the
citation of 38 U.S.C. 1154(b), which relates to claims by veterans who
have engaged in combat with the enemy, as authority for the proposed
Sec. 3.304(f). The commenter suggested that using section 1154(b) as
authority for this regulation could have negative implications, such as
misleading veterans into believing they can only file combat-related
PTSD claims. The commenter suggested instead that 38 U.S.C. 1154(a)
should serve as authority for the rulemaking.
As explained above, 38 U.S.C. 1154(a)(1) authorizes the Secretary
to promulgate regulations requiring that in adjudicating a claim for
service connection, consideration must ``be given to the places, types,
and circumstances of [a] 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.''
We believe that section 1154(a) provides sufficient authority for
this rulemaking with regard to paragraph (f)(3) of Sec. 3.304. However,
the authority for paragraph (f)(1) of Sec. 3.304 is 38 U.S.C. 1154(b).
Therefore, in order to avoid any potential confusion, the citation of
authority for the newly amended Sec. 3.304(f) should be 38 U.S.C.
501(a) and 1154. Accordingly, we have made this change in the final
rule.
In this final rule, we are also making in Sec. 3.304(f)(3) other
nonsubstantive changes from the proposed rule for purposes of clarity.
Paperwork Reduction Act
This document contains no provisions constituting a collection of
information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).
Regulatory Flexibility Act
The Secretary hereby certifies that this rule 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 rule would not directly affect any small entities. Only
individuals would be directly affected. Therefore, pursuant to 5 U.S.C.
605(b), this rule is exempt from the initial and final regulatory
flexibility analysis requirements of sections 603 and 604.
Catalog of Federal Domestic Assistance
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: February 27, 2002.
Anthony J. Principi,
Secretary of Veterans Affairs.
For the reasons set forth in the preamble, 38 CFR part 3 is amended
as follows:
[[Page 10332]]
PART 3--ADJUDICATION
Subpart A--Pension, Compensation, and Dependency and Indemnity
Compensation
1. The authority citation for part 3, subpart A continues to read
as follows:
Authority: 38 U.S.C. 501(a), unless otherwise noted.
2. In Sec. 3.304, paragraph (f) is revised to read as follows:
Sec. 3.304 Direct service connection; wartime and peacetime.
* * * * *
(f) Post-traumatic stress disorder. Service connection for post-
traumatic stress disorder requires medical evidence diagnosing the
condition in accordance with Sec. 4.125(a) of this chapter; a link,
established by medical evidence, between current symptoms and an in-
service stressor; and credible supporting evidence that the claimed in-
service stressor occurred. Although service connection may be
established based on other in-service stressors, the following
provisions apply for specified in-service stressors as set forth below:
(1) If the evidence establishes that the veteran engaged in combat
with the enemy and the claimed stressor is related to that combat, in
the absence of clear and convincing evidence to the contrary, and
provided that the claimed stressor is consistent with the
circumstances, conditions, or hardships of the veteran's service, the
veteran's lay testimony alone may establish the occurrence of the
claimed in-service stressor.
(2) If the evidence establishes that the veteran was a prisoner-of-
war under the provisions of Sec. 3.1(y) of this part and the claimed
stressor is related to that prisoner-of-war experience, in the absence
of clear and convincing evidence to the contrary, and provided that the
claimed stressor is consistent with the circumstances, conditions, or
hardships of the veteran's service, the veteran's lay testimony alone
may establish the occurrence of the claimed in-service stressor.
(3) If a post-traumatic stress disorder claim is based on in-
service personal assault, evidence from sources other than the
veteran's service records may corroborate the veteran's account of the
stressor incident. Examples of such evidence include, but are not
limited to: records from law enforcement authorities, rape crisis
centers, mental health counseling centers, hospitals, or physicians;
pregnancy tests or tests for sexually transmitted diseases; and
statements from family members, roommates, fellow service members, or
clergy. Evidence of behavior changes following the claimed assault is
one type of relevant evidence that may be found in these sources.
Examples of behavior changes that may constitute credible evidence of
the stressor include, but are not limited to: a request for a transfer
to another military duty assignment; deterioration in work performance;
substance abuse; episodes of depression, panic attacks, or anxiety
without an identifiable cause; or unexplained economic or social
behavior changes. VA will not deny a post-traumatic stress disorder
claim that is based on in-service personal assault without first
advising the claimant that evidence from sources other than the
veteran's service records or evidence of behavior changes may
constitute credible supporting evidence of the stressor and allowing
him or her the opportunity to furnish this type of evidence or advise
VA of potential sources of such evidence. VA may submit any evidence
that it receives to an appropriate medical or mental health
professional for an opinion as to whether it indicates that a personal
assault occurred.
(Authority: 38 U.S.C. 501(a), 1154)
[FR Doc. 02-5376 Filed 3-6-02; 8:45 am]
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