[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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