[Federal Register Volume 73, Number 210 (Wednesday, October 29, 2008)]
[Rules and Regulations]
[Pages 64208-64210]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-25735]


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

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AN04


Posttraumatic Stress Disorder

AGENCY: Department of Veterans Affairs.

ACTION: Interim final rule.

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

SUMMARY: The Department of Veterans Affairs (VA) is amending its

[[Page 64209]]

adjudication regulations regarding service connection for posttraumatic 
stress disorder (PTSD) by eliminating the requirement of evidence 
corroborating occurrence of the claimed in-service stressor in claims 
in which PTSD is diagnosed in service. This amendment is necessary to 
facilitate the proof of service connection in such claims. By this 
amendment, we intend to reduce claim-processing time for such claims.

DATES: Effective Date: This interim final rule is effective October 29, 
2008. Comments must be received by VA on or before November 28, 2008.
    Applicability Date: VA will apply this interim final rule to claims 
pending before VA on the effective date of this rule, as well as to 
claims filed after that date.

ADDRESSES: Written comments may be submitted through 
www.Regulations.gov; by mail or hand-delivery to the Director, 
Regulations Management (02REG), Office of the General Counsel, 
Department of Veterans Affairs, 810 Vermont Ave., NW., Room 1068, 
Washington, DC 20420; or by fax to (202) 273-9026. Comments should 
indicate that they are submitted in response to ``RIN 2900-AN04--
Posttraumatic Stress Disorder.'' Copies of 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) 461-4902 for 
an appointment. (This is not a toll-free number.) In addition, during 
the comment period, comments may be viewed online through the Federal 
Docket Management System (FDMS) at www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Maya Ferrandino, Regulations Staff 
(211D), Compensation and Pension Service, Veterans Benefits 
Administration, Department of Veterans Affairs, 810 Vermont Avenue, 
NW., Washington, DC 20420, (727) 319-5847. (This is not a toll-free 
number.)

SUPPLEMENTARY INFORMATION: The Secretary of Veterans Affairs has the 
authority to prescribe regulations governing the nature and extent of 
proof and evidence required to establish entitlement to benefits. 38 
U.S.C. 501(a)(1). Under 38 CFR 3.303(a), one of the ways that service 
connection of a disability may be established is by affirmatively 
showing inception or aggravation during service of a disease or injury 
that resulted in that disability. However, in order to establish 
service connection for PTSD in cases in which a veteran did not engage 
in combat with the enemy or was not a prisoner of war, current 38 CFR 
3.304(f) requires: (1) Medical evidence diagnosing PTSD; (2) medical 
evidence establishing a link between a veteran's current symptoms and 
an in-service stressor; and (3) credible supporting evidence that the 
claimed in-service stressor occurred.
    The longstanding requirement in Sec.  3.304(f) of credible 
supporting evidence that the claimed in-service stressor occurred is 
based on the American Psychiatric Association's Diagnostic and 
Statistical Manual of Mental Disorders, Fourth Edition (1994) (DSM-IV), 
to which a diagnosis of a mental disorder must conform. 38 CFR 3.304(f) 
and 4.125(a). According to DSM-IV at 427, the first diagnostic 
criterion for PTSD is:

    The person has been exposed to a traumatic event in which both 
of the following were present:
    (1) The person experienced, witnessed, or was confronted with an 
event or events that involved actual or threatened death or serious 
injury, or a threat to the physical integrity of self or others
    (2) The person's response involved intense fear, helplessness, 
or horror.

The symptoms of PTSD ``usually begin within the first 3 months after 
the trauma, although there may be a delay of months, or even years, 
before symptoms appear.'' DSM-IV at 426. Given the delay that may occur 
between the occurrence of a stressor and the onset of PTSD and the 
subjective nature of a person's response to an event, VA concluded, 
when it first promulgated Sec.  3.304(f) in 1993, that it is reasonable 
to require corroboration of the in-service stressor, a conclusion with 
which the United States Court of Appeals for the Federal Circuit 
agreed. 58 FR 29109 (1993); Nat'l Org. of Veterans' Advocates, Inc. v. 
Sec'y of Veterans Affairs, 330 F.3d 1345, 1351-52 (Fed. Cir. 2003). 
Also, according to DSM-IV at 424-25, a ``person commonly makes 
deliberate efforts to avoid thoughts, feelings, or conversations about 
the traumatic event * * * and to avoid activities, situations, or 
people who arouse recollections of it. * * * This avoidance of 
reminders may include amnesia for an important aspect of the traumatic 
event.'' We believed that it was reasonable for Sec.  3.304(f) to 
require corroboration of the occurrence of the stressor in order to 
substantiate aspects of the event that a veteran may not remember.
    However, VA has found, based on claims submitted since September 
11, 2001, that service members are increasingly being diagnosed with 
PTSD while still in service, rather than after discharge from service. 
The increased incidence of in-service diagnoses of PTSD is attributable 
to advances in medicine and increased monitoring of service members' 
mental health by the service departments. Given the ability to more 
quickly diagnose PTSD and the proximity between an in-service diagnosis 
of PTSD and the claimed occurrence of the stressor, VA no longer 
believes it is necessary to require evidence corroborating occurrence 
of the stressor in claims based on an in-service diagnosis.
    We are therefore amending Sec.  3.304(f) to relax the requirements 
for establishing service connection for PTSD that was diagnosed in 
service. We are adding a new paragraph, which provides that, if the 
evidence shows that the veteran's PTSD was diagnosed during service and 
the claimed stressor is related to that service, 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. We 
believe that this change will contribute to faster processing of PTSD 
claims by eliminating the need for VA to develop evidence of occurrence 
of the in-service stressor in claims in which the veteran's PTSD was 
diagnosed during service.
    For claims based on a postservice diagnosis of PTSD, we will 
continue to require credible supporting evidence of the occurrence of 
the claimed in-service stressor. 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 or a ``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). Further, 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). A post-service diagnosis of PTSD is often 
based on a claimant's personal account of a stressful event that may 
have occurred many years before the doctor's examination. In order to 
ensure a competent and credible diagnosis of PTSD, there must be 
corroboration of the claimed in-service stressor. This standard is the 
same as that generally applied by VA when a post-service diagnosis of a 
disability is allegedly due to an injury incurred or disease contracted 
during service.

[[Page 64210]]

    Also, we are eliminating the hyphen in the term ``post-traumatic 
stress disorder'' in Sec.  3.304(f) to reflect current medical 
terminology.

Administrative Procedure Act

    In accordance with 5 U.S.C. 553(b)(3)(B), the Secretary of Veterans 
Affairs finds that there is good cause to dispense with the opportunity 
for prior comment with respect to this rule, which eliminates the need 
for evidence to corroborate the occurrence of a stressor in claims in 
which a veteran was diagnosed with PTSD during service. The Secretary 
finds that it is impracticable, unnecessary, and contrary to the public 
interest to delay this regulation, which will speed up processing of 
PTSD claims, for the purpose of soliciting prior public comment because 
the regulation relieves an unnecessary proof requirement for certain 
veterans disabled by service-connected PTSD who need VA benefits as 
soon as possible to compensate for loss in wage-earning capacity. For 
the foregoing reasons, the Secretary of Veterans Affairs is issuing 
this rule as an interim final rule. The Secretary of Veterans Affairs 
will consider and address comments that are received within 30 days of 
the date this interim final rule is published in the Federal Register.

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 interim 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. This interim final rule will not affect any small 
entities. Only VA beneficiaries could be directly affected. Therefore, 
pursuant to 5 U.S.C. 605(b), this interim 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 Executive 
Order classifies a ``significant regulatory action,'' requiring review 
by the Office of Management and Budget (OMB), as any regulatory action 
that is likely to result in a rule that may: (1) Have an annual effect 
on the economy of $100 million or more or adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, or tribal governments or communities; (2) create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; (3) materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or (4) raise novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the Executive Order.
    The economic, interagency, budgetary, legal, and policy 
implications of this interim final rule have been examined, and it has 
been determined not to be a significant regulatory action under the 
Executive Order.

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 interim 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 rule are 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: October 7, 2008.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.

0
For the reasons set out in the preamble, VA is amending 38 CFR part 3 
as follows:

PART 3--ADJUDICATION

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. Amend Sec.  3.304(f) by:
0
a. Revising the paragraph heading and introductory text.
0
b. Redesignating paragraphs (1), (2), and (3) as paragraphs (2), (3), 
and (4), respectively, and by adding new paragraph (1).
0
c. Removing ``post-traumatic'' each place it appears and add, in its 
place, ``posttraumatic''.
    The revisions and addition read as follows:


Sec.  3.304  Direct service connection; wartime and peacetime.

* * * * *
    (f) Posttraumatic stress disorder. Service connection for 
posttraumatic 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. The following provisions apply to claims for 
service connection of posttraumatic stress disorder diagnosed during 
service or based on specified in-service stressors:
    (1) If the evidence establishes a diagnosis of posttraumatic stress 
disorder during service and the claimed stressor is related to that 
service, 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.
* * * * *
[FR Doc. E8-25735 Filed 10-28-08; 8:45 am]
BILLING CODE 8320-01-P