[Federal Register Volume 71, Number 172 (Wednesday, September 6, 2006)]
[Rules and Regulations]
[Pages 52455-52457]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-14746]


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

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AM15


New and Material Evidence

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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

SUMMARY: This document amends the Department of Veterans Affairs (VA) 
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 revision will provide consistency in 
adjudication of certain types of claims.

DATES: Effective Date: This amendment is effective October 6, 2006.

FOR FURTHER INFORMATION CONTACT: Maya Ferrandino, Consultant, 
Regulations Staff (211D), Compensation and Pension Service, Veterans 
Benefits Administration, Department of Veterans Affairs, 810 Vermont 
Ave., NW., Washington DC 20420, (202) 273-7211.

SUPPLEMENTARY INFORMATION: On June 20, 2005, VA published in the 
Federal Register (70 FR 35388) a proposal to revise VA's rules 
regarding the reconsideration of decisions on claims for benefits based 
on newly discovered service records received after the initial decision 
on a claim. Interested persons were invited to submit written comments 
on or before August 19, 2005. We received comments from the National 
Organization of Veterans' Advocates and three members of the public.
    We are making two changes to 38 CFR 3.156(c)(2) based on internal 
agency reconsideration. First, we are revising the title of the Joint 
Services Records Research Center (JSRRC). In the proposed rulemaking, 
we stated the title as Center for Research of Unit Records (CRUR), 
which is incorrect. Instead, we will state the correct title in the 
regulation, which is Joint Services Records Research Center. Second, we 
are inserting the word ``because'' after ``, or'' in the first sentence 
of Sec.  3.156(c)(2) to improve readability. We are not altering the 
substantive content of the paragraph by making these changes.
    One commenter stated that she supported this rulemaking and that 
clarification of the rules currently in Sec.  3.156 is needed. We 
appreciate this comment and believe that this rulemaking will improve 
the clarity of that regulation.
    One commenter stated that in the proposed rule, we use the phrase 
``whichever is later'' in numerous places. The commenter stated that if 
we are clarifying retroactive effective dates, the term should be 
``former'', as it would mean ``before the date VA uses to base the 
effective date.''
    At Sec.  3.156(c)(3), the proposed regulation states:

    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.

    As stated in the proposed rulemaking, proposed Sec.  3.156(c)(2) is 
derived from current 38 CFR 3.400(q), regarding effective dates for 
awards based on new and material evidence. Section 3.400, VA's 
regulation regarding effective dates, uses the terminology ``date of 
receipt of the claim or the date entitlement arose, whichever is the 
later.'' This language is derived from 38 U.S.C. 5110, the authorizing 
statute for effective dates, which states that ``the effective date of 
an award * * * shall be fixed in accordance with the facts found, but 
shall not be earlier than the date of receipt of application 
therefor.'' The statute and the current regulation thus require that 
the effective date of the award be the later of the date of entitlement 
or the date VA received the application for the benefit. As such, the 
use of the term ``later'' in the proposed regulation is consistent with 
the statute and VA's long-standing terminology regarding effective 
dates. We believe the phrase ``whichever is later'' is well understood 
by claimants, their representatives, and VA staff. We therefore make no 
change based on this comment.
    One commenter stated that VA should clearly define the phrases 
``effective on the date entitlement arose or the date VA received the 
previously denied claim, whichever is later,'' ``or such other date'', 
and ``except as it may be affected by the filing date of the initial 
claim.''

[[Page 52456]]

    These phrases, from proposed Sec.  3.156(c)(3) and (4), all are 
based on language from VA's regulation regarding effective dates, Sec.  
3.400. In the proposed regulation, we are conforming the effective date 
provision to VA's existing regulations regarding effective dates. We 
believe these terms are well understood by claimants, their 
representatives, and VA staff. The meaning of the phrase ``effective on 
the date entitlement arose or the date VA received the previously 
denied claim, whichever is later,'' is discussed above and we do not 
believe further clarification is needed as to that phrase.
    As to the second phrase referenced by the commenter, proposed Sec.  
3.156(c)(3) would state that the effective date of an award based on 
newly discovered service department records is 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.'' Certain VA 
regulations authorize effective dates other than the date entitlement 
arose or the date VA received the claim. For example, if a claim for 
disability compensation was received within one year of separation from 
service, the effective date under 38 CFR 3.400(b)(2)(i) may be the day 
following separation from service. The reference to ``such other date'' 
merely indicates that VA will apply such effective-date provisions when 
they are controlling with respect to the previously decided claim.
    As to the third phrase, proposed Sec.  3.156(c)(4) states that, 
when an award is made based on new service department records, the 
disability rating assigned by VA for any past period will accord with 
the medical evidence of record ``except insofar as [the rating] may be 
affected by the date of the initial claim.'' This limitation merely 
reflects the rule, discussed above, that the effective date of any 
award or rating may be affected by the date of the initial claim for 
benefits. Because we believe these three phrases are sufficiently 
clear, we make no change based on this comment.
    This commenter additionally expressed concern with proposed 
paragraph (c)(2), which states that VA cannot reconsider a claim under 
paragraph (c)(1) based on records that ``did not exist when VA decided 
the claim.'' The commenter asks how it is possible that records of a 
veteran could not exist, and seems to ask how it is possible that 
relevant records could be created after a claim has been denied. In 
proposed paragraph (c)(2), we are referring to records such as modified 
discharges and corrected military records. The effective date of an 
award based on such evidence is controlled by 38 U.S.C. 5110(i) and is 
beyond the scope of this rule. Hence, proposed paragraph (c)(2) 
expressly states that the proposed regulation does not apply in such 
cases. Therefore, we make no change based on this comment.
    One commenter addressed the provision in the proposed rule at Sec.  
3.156(c)(2), which states that the provisions of subsection (c)(1) will 
not apply when the claimant fails to provide sufficient information for 
VA to identify and obtain the records. The commenter stated that this 
language is contrary to VA's duty to assist under 38 U.S.C. 
5103A(c)(1). The commenter asserted that this statute limits VA's duty 
to obtain some records unless the claimant has furnished information 
sufficient to locate the records, but contains no limitation on the 
duty of VA to obtain service medical records.
    As an initial matter, we note that this rule does not purport to 
define the scope of VA's duty to assist claimants under section 5103A. 
Rather, the purpose of this rule is to clarify long-standing VA rules, 
issued pursuant to the Secretary's general authority under 38 U.S.C. 
501(a), which authorize VA to award benefits retroactive to the date of 
a previously decided claim when newly discovered service department 
records are received. The scope of this rule is not intended to be 
coextensive with the scope of VA's duty to assist claimants. Section 
5103A, as enacted in 2000 by the Veterans Claims Assistance Act of 2000 
(VCAA), Public Law No. 106-475, requires VA to assist claimants in 
obtaining evidence to substantiate their claims, including service 
medical records. If VA fails to provide such assistance in any claim to 
which that law applies, a claimant may seek direct administrative or 
judicial review to ensure VA's compliance with section 5103A. This rule 
will not affect any individual's rights under section 5103A. The 
provisions of section 3.156(c), which predate by decades the enactment 
of the VCAA, do not prescribe rights or duties concerning VA assistance 
in developing evidence but, rather, prescribe standards for reopening 
previously denied claims and establishing the effective dates of awards 
in such reopened claims. Because this rule does not affect any 
claimant's rights under 38 U.S.C. 5103A, it does not conflict with 
section 5103A.
    Further, we believe that newly discovered service medical records 
ordinarily would provide a basis for retroactive benefits in disability 
compensation claims under this rule as proposed, if the provisions of 
the rule are otherwise met. Proposed Sec.  3.156(c)(2) refers to 
circumstances in which the claimant failed to provide information 
sufficient for VA to identify and obtain the records at issue. When a 
claim for disability benefits is filed, VA seeks to obtain a complete 
copy of the veteran's service medical records from the service 
department. Accordingly, with respect to service medical records, a 
completed application form that sufficiently identifies the veteran's 
branch and dates of service will ordinarily be sufficient to enable VA 
to obtain the veteran's service medical records. If a newly discovered 
service department record is one that VA should have received at the 
time it obtained the veteran's service medical records, we believe it 
ordinarily would be within the scope of proposed Sec.  3.156(c)(1). 
However, some types of service records would not commonly be associated 
with a veteran's service medical records even though they may reflect 
or otherwise relate to treatment or hospitalization during service. 
With respect to such records, we believe a determination must be made 
on a case-by-case basis as to whether the claimant provided VA with 
sufficient information to identify and obtain the record at the time of 
the prior claim. Therefore, we make no change based on this comment.
    A commenter discussed that when a claimant is denied benefits for a 
disability, and then files a new claim based on a post-service change 
in diagnosis, and that claim is granted, the effective date should be 
the date of the original claim. This comment is outside the scope of 
the proposed regulation. The proposed regulation addresses new service 
medical records, while the comment addresses a new diagnosis in post-
service records. Therefore, we make no change based on this comment.
    VA appreciates the comments submitted in response to the proposed 
rule. Based on the rationale stated in the proposed rule and in this 
document, the proposed rule is adopted with the changes noted.

Paperwork Reduction Act

    This document contains no provisions constituting a collection of 
information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

Regulatory Flexibility Act

    The Secretary hereby certifies that this final 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. The reason for

[[Page 52457]]

this certification is that this amendment would not directly affect any 
small entities. Only VA beneficiaries could be directly affected. 
Therefore, pursuant to 5 U.S.C. 605(b), this final rule is exempt from 
the initial and final regulatory flexibility analysis requirements of 
sections 603 and 604.

Executive Order 12866

    Executive Order 12866 directs agencies to assess all costs and 
benefits of available regulatory alternatives and, when regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety, 
and other advantages; distributive impacts; and equity). The Order 
classifies a rule as a significant regulatory action requiring review 
by the Office of Management and Budget if it meets any one of a number 
of specified conditions, including: having an annual effect on the 
economy of $100 million or more, creating a serious inconsistency or 
interfering with an action of another agency, materially altering the 
budgetary impact of entitlements or the rights of entitlement 
recipients, or raising novel legal or policy issues. VA has examined 
the economic, legal, and policy implications of this final rule and has 
concluded that it is a significant regulatory action under Executive 
Order 12866.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any year. This final rule would have no such effect on 
State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance Numbers and Titles

    The Catalog of Federal Domestic Assistance program numbers and 
titles for this proposal are 64.100, Automobiles and Adaptive Equipment 
for Certain Disabled Veterans and Members of the Armed Forces; 64.101, 
Burial Expenses Allowance for Veterans; 64.102, Compensation for 
Service-Connected Deaths for Veterans' Dependents; 64.104, Pension for 
Non-Service-Connected Disability for Veterans; 64.105, Pension to 
Veterans Surviving Spouses, and Children; 64.106, Specially Adapted 
Housing for Disabled Veterans; 64.109, Veterans Compensation for 
Service-Connected Disability; and 64.110, Veterans Dependency and 
Indemnity Compensation for Service-Connected Death.

List of Subjects in 38 CFR Part 3

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

    Approved: May 26, 2006.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.

0
For the reasons set out in the preamble, 38 CFR part 3 is amended as 
set forth below:

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity 
Compensation

0
1. The authority citation for part 3, subpart A continues to read as 
follows:

    Authority: 38 U.S.C. 501(a), unless otherwise noted.


0
2. Section 3.156 is amended by:
0
a. Adding a paragraph heading to paragraph (a).
0
b. Adding a paragraph heading to paragraph (b).
0
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 because the 
claimant failed to provide sufficient information for VA to identify 
and obtain the records from the respective service department, the 
Joint Services Records Research Center, 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))
* * * * *

0
3. Section 3.400 is amended by:
0
a. Revising the heading of paragraph (q).
0
b. Removing paragraph (q)(1) heading.
0
c. Redesignating paragraph (q)(1)(i) as new paragraph (q)(1).
0
d. Removing paragraph (q)(2).
0
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. E6-14746 Filed 9-5-06; 8:45 am]
BILLING CODE 8320-01-P