[Federal Register Volume 70, Number 117 (Monday, June 20, 2005)]
[Proposed Rules]
[Pages 35388-35390]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-12103]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AM15


New and Material Evidence

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Veterans Affairs proposes to revise its 
rules regarding the reconsideration of decisions on claims for benefits 
based on newly discovered service records received after the initial 
decision on a claim. The proposed revision would provide consistency in 
adjudication of certain types of claims.

DATES: Comments must be received on or before August 19, 2005.

ADDRESSES: Written comments may be submitted by: mail or hand-delivery 
to Director, Regulations Management (00REG1), Department of Veterans 
Affairs, 810 Vermont Ave., NW., Room 1068, Washington, DC 20420; fax to 
(202) 273-9026; e-mail to [email protected]; or, through http://www.Regulations.gov. Comments should indicate that they are submitted 
in response to ``RIN 2900-AM15.'' All comments received will be 
available for public inspection in the Office of Regulation Policy and 
Management, Room 1063B, between the hours of 8 a.m. and 4:30 p.m., 
Monday through Friday (except holidays). Please call (202) 273-9515 for 
an appointment.

FOR FURTHER INFORMATION CONTACT: Maya Ferrandino, Consultant, 
Compensation and Pension Service (211A), Policy and Regulations Staff, 
Veterans Benefits Administration, 810 Vermont Avenue, NW., Washington, 
DC 20420, (202) 273-7232.

SUPPLEMENTARY INFORMATION: To provide consistency in adjudication, we 
propose to revise current 38 CFR 3.156(c), to establish clearer rules 
regarding reconsideration of decisions on the basis of newly discovered 
service department records. We propose to include the substance of 
current 38 CFR 3.400(q)(2) in revised Sec.  3.156(c). Current Sec.  
3.400(q)(2) governs the effective date of benefits awarded when VA 
reconsiders a claim based on newly discovered service department 
records. We propose to redesignate current Sec.  3.400(q)(1) as new 
Sec.  3.400(q)(1) and (2) without substantive change.
    Current Sec. Sec.  3.156(c) and 3.400(q)(2) together establish an 
exception to the general effective date rule set forth in Sec.  3.400, 
which provides that the effective date of an award of benefits will be 
the date of claim or the date entitlement arose, whichever is the 
later. The exception applies when VA receives official service 
department records that were unavailable at the time that VA previously 
decided a claim for benefits and those records lead VA to award a 
benefit that was not granted in the previous decision. Under this 
exception, the effective date of such an award may relate back to the 
date of the original claim or date entitlement arose even though the 
decision on that claim may be final under Sec.  3.104.
    The provisions in current Sec. Sec.  3.156(c) and 3.400(q)(2) are 
also an exception to the general rule in Sec.  3.156(a) concerning 
claims to reopen based upon ``new and material evidence.'' Generally, 
Sec.  3.156(a) and current Sec.  3.400(q)(1) provide that a claimant 
must submit new and material evidence to reopen a finally denied claim, 
and the effective date for the award of benefits based upon such 
evidence may be no earlier than the date VA received the claim to 
reopen. Current Sec.  3.156(c) states that new and material evidence 
may consist of supplemental service department records received before 
or after the decision has become final. Current Sec.  3.156(c) is 
confusing because including a ``new and material'' requirement infers 
that VA may reopen a claim when service department records that were 
unavailable at the time of the prior decision are received, and the 
effective date would be the date of the reopened claim. In practice, 
when VA receives service department records that were unavailable at 
the time of the prior decision, VA may reconsider the prior decision, 
and the effective date assigned will relate back to the date of the 
original claim, or the date entitlement arose, whichever is later. We 
propose to revise Sec.  3.156(c) to clarify VA's current practice 
regarding newly received service department records. To eliminate 
possible confusion regarding the effective date assigned based on newly 
received service department records, we propose to remove the ``new and 
material'' requirement in current Sec.  3.156(c).
    We also propose to revise current Sec.  3.156(c) by revising the 
statement in current Sec.  3.156(c) that states that VA will reconsider 
its decision regarding a claim for benefits if it receives misplaced 
service department records or certain corrected service department 
records. In proposed paragraph Sec.  3.156(c)(1), we propose to 
elaborate on this statement and generally describe service department 
records as including any official service department records relating 
to the claimed in-service event, injury, or disease, regardless of 
whether such records mention the veteran by name, as long as the other 
requirements of paragraph (c) are met. We intend that this broad 
description of ``service department records'' will also include unit 
records, such as those obtained from the Center for Research of Unit 
Records (CRUR) that pertain to military experiences claimed by a 
veteran. Such evidence may be particularly valuable in connection with 
claims for benefits for post traumatic stress disorder.
    We also propose to clarify the language in current Sec.  3.156(c), 
which suggests that reconsideration may occur only if the service 
department records ``presumably have been misplaced and have now been 
located.'' Even though the current language can be read as a 
limitation, in practice, VA does not limit its reconsideration to 
``misplaced'' service department records. Rather, VA intended the 
reference to misplaced records as an example of the type of service 
department records that may have been unavailable when it issued a 
decision on a claim. The proposed revision to Sec.  3.156(c) removes 
this ambiguity.
    Proposed Sec.  3.156(c)(1)(iii), adds ``declassified records that 
could not have been obtained because the records were classified when 
VA decided the claim'' as an example of service department records that 
may have been unavailable at the time of the prior decision. 
Declassified records may provide evidence of injuries, exposures, or 
other events in service that may support a claim for VA benefits. 
Classified service department records are similar to misplaced records 
and subsequently corrected records in that

[[Page 35389]]

they were unavailable at the time of VA's initial adjudication of the 
claim. Therefore, it is reasonable to include declassified service 
department records within the scope of the proposed rule.
    We propose in Sec.  3.156(c)(2) to limit the application of this 
rule by stating that it ``does not apply to records that VA could not 
have obtained when it decided the claim because the records did not 
exist when VA decided the claim, or the claimant failed to provide VA 
sufficient information for VA to identify and obtain the records from 
the respective service department, the Center for Research of Unit 
Records, or from any other official source.'' Reconsideration based 
upon service department records would not be available in cases where 
the claimant did not provide information that would have enabled VA or 
another federal agency to identify and search for relevant records. 
This limitation would allow VA to reconsider decisions and 
retroactively evaluate disability in a fair manner, on the basis that a 
claimant should not be harmed by an administrative deficiency of the 
government, but limited by the extent to which the claimant has 
cooperated with VA's efforts to obtain these records.
    We also propose to limit the application of Sec.  3.156(c) to avoid 
conflict with 38 U.S.C. 5110(i), which specifically limits the 
effective date of an award based on corrected service department 
records to no earlier than one year before the date on which the 
previously disallowed claim was reopened. See also 38 CFR 3.400(g). 
Accordingly, proposed Sec.  3.156(c) excludes decisions based upon this 
type of corrected service department records because the proposed rule 
does not apply to ``records that VA could not have obtained * * * 
because the records did not exist when VA decided the claim.'' For the 
sake of additional clarity, we propose to cross reference 38 CFR 
3.400(g) at the end of the rule.
    We propose to remove the language in current Sec.  3.156(c) 
requiring the submission of ``a supplemental report from the service 
department'' as a prerequisite to reconsideration and retroactive 
evaluation of disability, because VA does not require such supplemental 
reports in its current administrative proceedings. If, for example, VA 
itself had been in possession of the records during the prior 
adjudication but did not associate the records with the claim before a 
final denial, then the evidence would still warrant reconsideration and 
a retroactive evaluation of disability or entitlement to benefits under 
this rule. For the same reason, we propose to eliminate the third 
sentence of current Sec.  3.156(c), which refers to the same type of 
report.
    Current Sec. Sec.  3.156(c) and 3.400(q)(2) may be read as 
requiring an earlier effective date for the award of benefits upon 
reconsideration only when the basis for the award is newly discovered 
service department records. Proposed Sec.  3.156(c)(3) eliminates this 
ambiguity and clarifies that ``[a]n award based all or in part on the 
records identified by paragraph (c)(1) of this section is effective on 
the date entitlement arose or the date VA received the previously 
decided claim, whichever is later, or such other date as may be 
authorized by the provisions of this part applicable to the previously 
decided claim.'' This provision would apply, for example, in cases 
where a veteran files a claim for disability compensation, which VA 
denies because there is no evidence of an in-service injury. Years 
later, if VA receives service department records that show an in-
service injury, and obtains a medical opinion that links that injury to 
the claimant's current disability, it would grant service connection. 
Although the doctor's opinion is not a document that meets the 
definition of proposed Sec.  3.156(c)(1), the service department record 
showing incurrence, which provided the basis for the medical opinion, 
is such a document. Therefore, the veteran in this example would be 
entitled to reconsideration of the prior decision and retroactive 
evaluation of disability. Any award of benefits as a result of such 
reconsideration would be effective on the date entitlement arose or the 
date of claim, whichever is later, or any other date made applicable by 
law or regulation to previously decided claims.
    Benefits awarded upon reconsideration of a claim and/or retroactive 
evaluations of disability under current Sec.  3.156(c) are effective on 
the dates specified in current Sec.  3.400(q)(2).
    Because we propose to include the rule regarding the effective date 
of an award of benefits based all or in part on newly discovered 
service department records in Sec.  3.156(c), we additionally propose 
to remove that effective date provision from current Sec.  3.400(q).

Paperwork Reduction Act

    This document contains no new collections of information under the 
Paperwork Reduction Act (44 U.S.C. 3501-3521). To the extent the 
proposed revision to Sec.  3.156(c) applies to service department 
records obtained by VA or provided by a service department, it does not 
involve a collection of information under the Paperwork Reduction Act. 
To the extent the proposed revision applies to service department 
records submitted by individual claimants, the collection of 
information has been approved by OMB in connection with the VA forms 
governing applications for compensation, pension, and dependency and 
indemnity compensation (DIC). Those forms govern the submission of 
evidence, including service department records, that are relevant to 
claims for those benefits. This proposed rule would merely explain what 
actions VA will take when such evidence is submitted after VA has made 
its initial decision on the claim. The OMB approval numbers for those 
information collections are 2900-0001 (VA Form 21-526, Veterans' 
Application for Compensation and/or Pension); 2900-004 (VA Form 21-534, 
Application for DIC, Death Compensation, and Accrued Benefits by a 
Surviving Spouse or Child); and 2900-005 (VA Form 21-535, Application 
for DIC by Parent(s)).

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed regulatory 
amendment will not have a significant economic impact on a substantial 
number of small entities as they are defined in the Regulatory 
Flexibility Act, 5 U.S.C. 601-612. This proposed amendment would not 
affect any small entities. Therefore, pursuant to 5 U.S.C. 605(b), this 
proposed amendment is exempt from the initial and final regulatory 
flexibility analysis requirements of sections 603 and 604.

Executive Order 12866

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

Unfunded Mandates

    The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that 
agencies prepare an assessment of anticipated costs and benefits before 
developing any rule that may result in an expenditure by State, local, 
or tribal governments, in the aggregate, or by the private sector, of 
$100 million or more (adjusted annually for inflation) in any given 
year. This rule would have no such effect on State, local, or tribal 
governments, or the private sector.

Catalog of Federal Domestic Assistance Numbers

    The Catalog of Federal Domestic Assistance program numbers for this 
proposal are 64.100, 64.101, 64.102, 64.104-106, 64.109, and 64.110.

[[Page 35390]]

List of Subjects in 38 CFR Part 3

    Administrative practice and procedure, Claims, Disability benefits, 
Health care, Pensions, Veterans.

    Approved: March 2, 2005.
R. James Nicholson,
Secretary of Veterans Affairs.

    For the reasons set out in the preamble, VA proposes to amend 38 
CFR part 3 as follows:

PART 3--Adjudication

    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. Section 3.156 is amended by:
    a. Adding a paragraph heading to paragraph (a).
    b. Adding a paragraph heading to paragraph (b).
    c. Revising paragraph (c).
    The additions and revision read as follows:


Sec.  3.156  New and material evidence.

    (a) General. * * *
    (b) Pending claim. * * *
    (c) Service department records. (1) Notwithstanding any other 
section in this part, at any time after VA issues a decision on a 
claim, if VA receives or associates with the claims file relevant 
official service department records that existed and had not been 
associated with the claims file when VA first decided the claim, VA 
will reconsider the claim, notwithstanding paragraph (a) of this 
section. Such records include, but are not limited to:
    (i) Service records that are related to a claimed in-service event, 
injury, or disease, regardless of whether such records mention the 
veteran by name, as long as the other requirements of paragraph (c) of 
this section are met;
    (ii) Additional service records forwarded by the Department of 
Defense or the service department to VA any time after VA's original 
request for service records; and
    (iii) Declassified records that could not have been obtained 
because the records were classified when VA decided the claim.
    (2) Paragraph (c)(1) of this section does not apply to records that 
VA could not have obtained when it decided the claim because the 
records did not exist when VA decided the claim, or the claimant failed 
to provide sufficient information for VA to identify and obtain the 
records from the respective service department, the Center for Research 
of Unit Records, or from any other official source.
    (3) An award made based all or in part on the records identified by 
paragraph (c)(1) of this section is effective on the date entitlement 
arose or the date VA received the previously decided claim, whichever 
is later, or such other date as may be authorized by the provisions of 
this part applicable to the previously decided claim.
    (4) A retroactive evaluation of disability resulting from disease 
or injury subsequently service connected on the basis of the new 
evidence from the service department must be supported adequately by 
medical evidence. Where such records clearly support the assignment of 
a specific rating over a part or the entire period of time involved, a 
retroactive evaluation will be assigned accordingly, except as it may 
be affected by the filing date of the original claim.

(Authority: 38 U.S.C. 501(a))

* * * * *
    3. Section 3.400 is amended by:
    a. Revising the heading of paragraph (q).
    b. Removing paragraph (q)(1) heading.
    c. Redesignating paragraph (q)(1)(i) as new paragraph (q)(1).
    d. Removing paragraph (q)(2).
    e. Redesignating paragraph (q)(1)(ii) as new paragraph (q)(2).
    The revision reads as follows:


Sec.  3.400  General.

* * * * *
    (q) New and material evidence (Sec.  3.156) other than service 
department records. * * *
* * * * *
[FR Doc. 05-12103 Filed 6-17-05; 8:45 am]
BILLING CODE 8320-01-P