[Federal Register Volume 74, Number 237 (Friday, December 11, 2009)]
[Proposed Rules]
[Pages 65702-65719]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-29459]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AN46


Notice of Information and Evidence Necessary To Substantiate 
Claim

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its 
regulations regarding VA's duty to notify a claimant of the information 
and evidence necessary to substantiate a claim. The purpose of this 
amendment is to implement the Veterans' Benefits Improvement Act of 
2008, which requires the Secretary of Veterans Affairs to prescribe in 
regulations requirements relating to the content of notice to be 
provided to claimants for veterans benefits, including different 
content for notice based on the type of claim filed, the type of 
benefits or services sought under the claim, and the general 
information and evidence required to substantiate the basic elements of 
each type of claim.

DATES: Comments must be received by VA on or before February 9, 2010.

ADDRESSES: Written comments may be submitted through 
www.Regulations.gov; by mail or hand-delivery to Director, Regulations 
Management (02REG), Department of Veterans Affairs, 810 Vermont Ave., 
NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026. 
(This is not a toll free number). Comments should indicate that they 
are submitted in response to ``RIN 2900-AN46--Notice of Information and 
Evidence to Substantiate Claim.'' 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 http://www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Thomas J. Kniffen, Chief, Regulations

[[Page 65703]]

Staff (211D), Compensation and Pension Service, Veterans Benefits 
Administration, Department of Veterans Affairs, 810 Vermont Avenue, 
NW., Washington, DC 20420, (202) 461-9725. (This is not a toll-free 
number.)

SUPPLEMENTARY INFORMATION: This proposed rule is necessary to implement 
the Veterans' Benefits Improvement Act of 2008, Public Law 110-389, 122 
Stat. 4145, 4147. Section 101(a)(1) of the Act redesignated former 38 
U.S.C. 5103(a) as 38 U.S.C. 5103(a)(1) but made no change to its 
language. 122 Stat. 4147. Section 5103(a)(1) continues to require VA to 
notify a claimant for veterans benefits of the information and evidence 
not previously provided to the Department that is necessary to 
substantiate a claim and of the respective responsibilities of VA and 
the claimant in obtaining various portions of the evidence. The United 
States Court of Appeals for the Federal Circuit (Federal Circuit) has 
held that section 5103(a)(1) ``on its face does not address the level 
of required detail'' in the notice provided and ``must be interpreted 
as requiring only generic notice at the outset.'' Wilson v. Mansfield, 
506 F.3d 1055, 1059-60 (Fed. Cir. 2007). The Federal Circuit explained 
that ``generic notice'', refers to notice that ``identif[ies] the 
information and evidence necessary to substantiate the particular type 
of claim being asserted'' by a claimant. Id. In Angel Vazquez-Flores v. 
Eric K. Shinseki, Secretary of Veterans Affairs, and Michael R. Schultz 
v. Eric K. Shinseki, Secretary of Veterans Affairs, Nos. 2008-7150 & 
2008-7115, 2009 WL 2835434, *6 (Fed. Cir. Sept. 4, 2009), the Federal 
Circuit stated that the term ``particular type of claim'' refers to the 
type of claim filed, e.g., claim for service connection or an increased 
rating. See also Wilson, 506 F.3d at 1059-60; Paralyzed Veterans of Am. 
v. Secretary of Veterans Affairs, 345 F.3d 1334, 1347 (Fed. Cir. 2003).
    Section 101(a)(2) of Public Law 110-389 amends 38 U.S.C. 5103(a) by 
adding subsection (a)(2), requiring the Secretary of Veterans Affairs 
to prescribe in regulations requirements relating to the content of 
notice to be provided under section 5103(a). VA's regulations must 
specify ``different contents'' for notice based on the type of claim 
filed (e.g., original claims, reopened claims, claims for increase), 
must provide that the contents of the notice be appropriate to the type 
of benefits or services sought under the claim, and must specify the 
``general information and evidence required to substantiate the basic 
elements'' of each type of claim. Public Law 110-389, 122 Stat. 4147. 
Section 101(b) of Public Law 110-389, 112 Stat. 4147, specifies that 
the regulations will apply to notice provided to claimants on or after 
the effective date of such regulations. However, the statute does not 
specify the types of ``information and evidence'' that would be 
required for any type of claim, nor does it limit VA's authority to 
determine what types of information and evidence are necessary for that 
purpose.
    VA is proposing to amend current 38 CFR 3.159 so that it would 
pertain only to VA's duty to notify a claimant upon receipt of an 
application for veterans benefits, as required by 38 U.S.C. 5102 and 
5103. Therefore, Sec.  3.159(a)(1) and (2), (c), (d), (e), (f), and 
(g), which pertain to VA's duty to assist in developing claims under 38 
U.S.C. 5103A, rather that the duty to notify under section 5103, would 
be redesignated as new Sec.  3.167(a) through (e). We have made one 
substantive amendment to current Sec.  3.159(d)(3) which will be 
redesignated as new Sec.  3.167(c)(1). We are eliminating lack of 
veteran status as a basis upon which VA will refrain from or 
discontinue assistance under section 5103A in new section 3.167(c)(1) 
because the United States Court of Appeals for Veterans Claims 
(Veterans Court) held in Gardner v. Shinseki, 22 Vet. App. 415, 421 
(2009), that VA has a duty to assist a person who files a claim for 
veterans benefits alleging that he or she is a veteran even if the 
person has not demonstrated veteran status.
    VA provides the following assistance to develop a claimant's status 
as a veteran. Sections III through V of VA Form 21-526, Veteran's 
Application for Compensation and/or Pension, ask a veteran to provide 
information about his or her military service and to attach an original 
or certified copy of the claimant's DD214, Certification of Release or 
Discharge from Active Duty. As part of the initial screening process, 
VA conducts a routine check of the application and accompanying 
documents to determine whether the claimant has provided sufficient 
information to verify the character of discharge from military service 
and the claimed service. If the information provided is not sufficient 
to verify the claimed service or to establish the claimant's status as 
a ``veteran,'' VA assists the claimant by requesting military records 
and other relevant records, as explained in Sec.  3.167(b)(1)-(3) of 
this rulemaking, which is a recodification of current Sec.  
3.159(c)(1)-(3). VA discontinues its assistance if the Department 
determines that the claimant's service does not satisfy the 
requirements of title 38, United States Code, or the claimant does not 
submit essential information missing from the application that VA has 
requested. Also, VA will not provide assistance if no reasonable 
possibility exists that such assistance would aid in substantiating the 
claimant's status as a veteran, e.g., the claimant's DD214 shows that 
the claimant received a dishonorable discharge from service.
    Current Sec.  3.159(a)(4) defines ``event'' for purposes of current 
Sec.  3.159(c)(4)(ii), which pertains to VA's duty to assist. However, 
the term is also relevant with regard to the notice VA must provide 
regarding the elements necessary to substantiate a claim for service 
connection. We are therefore retaining the definition without 
substantive amendment as new Sec.  3.159(a)(5) and also redesignating 
it without substantive amendment as proposed new Sec.  3.167(a)(3).
    In addition to current Sec.  3.159(a)(4), VA would retain in 
amended Sec.  3.159 another definition in current Sec.  3.159(a) that 
pertains to VA's duty to notify. The current definition of 
``[s]ubstantially complete application'' in Sec.  3.159(a)(3) would be 
redesignated in new Sec.  3.159(a)(1) and we would additionally define 
the term to include an application ``identifying'' pertinent 
information. Proposed new Sec.  3.159(a)(2) would define ``[T]ype of 
claim filed'' to mean ``an original claim, claim to reopen a prior 
final decision on a claim, or a claim for increase in benefits.'' This 
regulatory definition incorporates 38 U.S.C. 5103(a)(2)(B)(i) 
identifying ``an original claim, claim for reopening a prior decision 
on a claim, [and] a claim for an increase in benefits'' as the three 
types of claims for which VA must specify different contents.
    VA would state in Sec.  3.159(a)(3) that ``[t]ype of benefit 
sought'' refers to ``the general nature of the benefits sought, such as 
disability compensation, increased compensation, dependency and 
indemnity compensation, and pension.'' The definition would not include 
``specific disabilities, theories of entitlement, or other case-
specific facts.'' Section 5103(a)(1) itself makes clear that the 
requisite notice must be provided soon after VA receives the complete 
or substantially complete application. At the juncture in the claims 
process at which VA must comply with 38 U.S.C. 5103(a)(1), VA is unable 
to provide notice that accounts for specific disabilities, theories of 
entitlement, or particular facts. VA solicits case-specific information 
and evidence by sending development letters to claimants as part of the 
Department's duty to assist in obtaining

[[Page 65704]]

evidence to substantiate claims as required by 38 U.S.C. 5103A.
    VA would redesignate without change the definition of 
``[i]nformation'' in current Sec.  3.159(a)(5) as proposed new Sec.  
3.159(a)(4).
    VA would redesignate without substantive amendment current Sec.  
3.159(f) as proposed new Sec.  3.159(b), which would state that, for 
purposes of the notice requirements in Sec. Sec.  3.159 through 3.166, 
notice to the claimant means notice to the claimant or his or her 
fiduciary, if any, as well as to his or her representative, if any.
    VA would redesignate without amendment current Sec.  3.159(b)(2) as 
proposed new Sec.  3.159(c), describing the notice that VA would 
provide upon receipt of an incomplete application.
    Proposed new Sec.  3.159(d) would address the notice VA would 
provide upon receipt of a complete or substantially complete 
application, as required by 38 U.S.C. 5103(a)(1). Proposed new Sec.  
3.159(d)(1) describes the purpose of the notice required by 38 U.S.C. 
5103(a)(1). Consistent with the plain language of 38 U.S.C. 5103(a)(1), 
which is unchanged by Public Law 110-389 and section 101(a)(2) of the 
Act, Sec.  3.159(d)(1) would explain that, upon receipt of a complete 
or substantially complete application, VA ``will provide a claimant 
with notice of the general information and types of evidence that could 
be used by VA in deciding the type of claim filed for the type of 
benefit sought.'' The first and second sentences of this paragraph 
would generally restate 38 U.S.C. 5103(a)(2)(B)(ii) and (iii).
    The third sentence of proposed Sec.  3.159(d)(1) would state that 
``VA generally will not * * * identify specific evidence necessary to 
substantiate an individual claimant's case.'' As the Federal Circuit 
explained in Vazquez-Flores, 38 U.S.C. 5103(a)(1) does not require 
veteran-specific notice. 2009 WL 2835434, *6; see also Wilson, 506 F.3d 
at 1059-60. In addition, because VA provides notice under section 
5103(a) at an early stage in the claim, VA can provide notice of the 
general types of evidence that would be needed to substantiate the 
claim for the type of benefit sought, but generally cannot at that 
stage identify specific items of evidence that may prove necessary in 
each individual case once the facts and arguments have been developed 
pursuant to VA's duty to assist. Further, any attempt to identify 
specific items of evidence would not only be potentially speculative, 
but would often require highly detailed and complex notice to account 
for the variety of facts and arguments that may be raised as the claim 
is developed.
    The report of the Senate Veterans' Affairs Committee on S. 3023, 
which was enacted as Public Law 110-389, noted that IBM Global Business 
Services found ``the current [VA notice] letter to be `long and 
complex, containing a great deal of legal language that can be 
confusing to veterans when trying to understand the process for 
completing their disability claim.' '' S. Rep. 110-449, at 8-9 (2008). 
IBM recommended that VA revise the notice letter ``to be shorter and 
more transparent,'' a conclusion that the Senate committee appeared to 
endorse. Id. at 9-10. VA formed a work group and, consistent with the 
recommendations, VA revised notice letters provided to claimants for 
compensation, pension, and death benefits to make the letters shorter 
and more specific. We believe that VA notice will be more easily read 
and understood by claimants if VA provides short, succinct notice about 
the information and evidence necessary to substantiate the type of 
claim filed and benefit sought at the initial stages of a claim and 
defers case-specific letters to the development stage of the claim. Id. 
at 78 (letter from Secretary of Veterans Affairs James B. Peake, M.D., 
dated July 8, 2008). VA currently receives more than 800,000 claims 
annually, most of which require VA to provide section 5103(a)(1) 
notice. Id. By providing generic rather than case-specific notice, the 
Department is able to respond quickly to a claimant's application for 
benefits, thereby commencing the claims-adjudication process. Id. Case-
specific notice, by contrast, is not administratively feasible and 
would only delay the process without appreciably furthering development 
of the information and evidence necessary to substantiate the claim.
    Consistent with proposed new Sec.  3.159(d)(1), we would explain in 
the proposed new Sec.  3.159(d)(2)(i) that VA will notify a claimant of 
the general type of information and evidence that is necessary to 
substantiate entitlement for the type of veterans benefits for which a 
claim was filed. Vazquez-Flores, 2009 WL 2835434, *6; Wilson, 506 F.3d 
at 1058-60.
    Proposed new Sec.  3.159(d)(2)(ii) and (iii) would explain how VA's 
notice will delineate the parties' respective obligations under 38 
U.S.C. 5103(a)(1) to obtain the information or evidence necessary to 
substantiate a claim. As set forth in Sec.  3.159(d)(2)(ii), VA will 
notify a claimant that VA will obtain records that a claimant 
adequately identifies and authorizes VA to obtain from any Federal 
agency or from any other entity or person and will provide a medical 
examination or obtain a medical opinion if necessary to decide the 
claim.
    Proposed new Sec.  3.159(d)(2)(i)(A) and (B) would state that VA 
will notify a claimant of the claimant's obligation to provide VA with 
enough information to identify and locate the records, including the 
person or entity holding the records, the approximate time frame 
covered by the records, and, in the case of medical-treatment records, 
the condition for which treatment was provided and, if necessary, to 
authorize the release to VA of existing records in a form acceptable to 
the person or entity holding the records.
    Proposed new Sec.  3.159(d)(3) would explain the circumstances 
under which VA will not provide notice under 38 U.S.C. 5301(a)(1). This 
is a restatement of current Sec.  3.159(b)(3), with one additional 
circumstance. In proposed new Sec.  3.159(d)(3)(i), we would state that 
VA will not provide notice if the claim can be granted when the initial 
application is filed. In such cases, there is no need to delay award of 
the benefit by issuing notice and waiting at least 30 days for a 
response from the claimant because VA already has the information and 
evidence necessary to grant the claim.
    Proposed new Sec.  3.159(d)(4) would provide the time period within 
which a claimant must provide the information and evidence requested by 
VA. Proposed new Sec.  3.159(d)(4)(i) and (ii) would redesignate the 
last three sentences of current Sec.  3.159(b)(1).
    We propose to redesignate current Sec. Sec.  3.160 and 3.161 as 
Sec. Sec.  3.170 and 3.171 respectively.
    Proposed new Sec.  3.160 would provide the content of the notice 
that VA will provide upon receipt of an original claim for disability 
compensation. Paragraph (a)(1) would explain that, if a veteran alleges 
disability resulting from active duty, VA will notify the veteran that 
information and evidence of the following is necessary to substantiate 
the claim: (1) A current disability, which is established by medical 
treatment records, medical opinions, and evidence from non-medical 
persons about persistent and recurrent symptoms of disability they have 
observed; (2) inservice incurrence or aggravation of an injury or 
disease, symptoms that were noted during service and that persisted 
until diagnosis of an injury or disease causing the symptoms, or an 
event in service capable of causing injury or disease, which is 
established by medical treatment records, medical opinions, and, in the 
case of certain symptoms or inservice events, evidence from non-

[[Page 65705]]

medical persons; and (3) a relationship between the inservice disease, 
injury, symptoms, or event and the veteran's current disability, which 
is generally established by medical treatment records, medical 
opinions, or by use of a legal presumption that the disability is 
related to a particular type of military service, such as detention as 
a prisoner of war, participation in a radiation-risk activity, or 
service in Vietnam or the Southwest Asia theater of operations during 
the Gulf War. Subsection (a)(1) would also explain that information and 
evidence must show the extent of current disability, which may be based 
on medical treatment records, medical opinions, statements from the 
veteran's employer about how the disability affects the veteran's 
ability to work and from other people about how the veteran's symptoms 
affect the veteran.
    VA would not provide notice of the information and evidence 
necessary to establish the claimant's status as a veteran. VA Form 21-
526, Veteran's Application for Compensation and/or Pension, solicits 
from a veteran information that enables VA to verify the veteran's 
service and character of discharge, and, under its duty to assist with 
claim development, VA requests the records necessary to verify the 
veteran's service and character of discharge from the military service 
departments. `` `Service department findings are binding on VA for 
purposes of establishing service in the U.S. Armed Forces.' '' Spencer 
v. West, 13 Vet. App. 376, 380 (2000) (quoting Duro v. Derwinski, 2 
Vet. App. 530, 532 (1992)); 38 CFR 3.203. Therefore, in most cases, 
there is no need to notify a claimant of the information and evidence 
necessary to substantiate veteran status and VA instead tailors the 
notice provided to the type of benefit sought.
    VA also would not provide notice regarding the information and 
evidence necessary to substantiate an effective date for an award of 
benefits. We recognize that the Veterans Court has held that VA must 
provide notice under 38 U.S.C. 5103(a)(1) as to all elements of a 
claim, including ``downstream elements'' such as establishing 
entitlement to an effective date. Dingess v. Nicholson, 19 Vet. App. 
473, 484 (2006), aff'd per curiam, Nos. 2006-7247 & 2006-7312, 2007 WL 
1686737 (Fed. Cir. June 5, 2007). However, we believe that, at the 
initial stage of a claim when section 5103(a)(1) notice must be 
provided, notice of the information and evidence necessary to establish 
an effective date for an award of benefits ``may be misleading and 
confusing'' to the claimant. S. Rep. 110-449, at 10. For example, it 
may lead the claimant to assume that service connection has been 
conceded and that the issue on which evidence must be submitted relates 
to the effective date. Id.
    Further, there is generally no need to notify claimants of the need 
to submit evidence relating to the effective dates of VA awards. The 
determination of an effective date of an award is governed by statute 
and there generally is no evidence that a claimant can submit to 
substantiate a particular effective date. Pursuant to 38 U.S.C. 5110, 
the effective date of an award in most circumstances is based upon the 
date of the claim for benefits, the date of separation from service, 
the date of a veteran's death, or the date a disability arose or 
worsened. The date of the claim will be a matter of record before VA 
sends notice under section 5103(a)(1). The other events upon which an 
effective date may be based generally will be established by the same 
evidence that VA obtains or requests the claimant to submit for 
purposes of establishing entitlement to the benefit sought. As noted 
above, VA routinely obtains verification of service from the service 
department, as needed, upon receipt of a complete application providing 
the necessary information. Further, at the time VA grants disability or 
death benefits and the issue of effective date therefore arises, VA 
will necessarily have obtained, pursuant to its notice under section 
5103(a)(1) and its duty to assist under section 5103A, evidence 
documenting the date of the veteran's death (in death benefit claims) 
or medical evidence concerning the diagnosis, treatment, and history of 
the veteran's disability (in disability benefit cases). There will 
seldom be circumstances where additional evidence would be relevant 
with respect to the issue of effective date. However, in the event that 
additional evidence would be relevant at the stage of proceedings in 
which VA assigns an effective date, it may be addressed in the notices 
relevant to that stage of proceedings, including notices of decisions 
and statements of the case.
    As explained in Sec.  3.160(a)(2), VA will notify a claimant who 
files a claim alleging disability based on active duty for training 
that information and evidence of the following is necessary to show 
service connection for the disability: (1) A current disability, which 
is established by medical treatment records, medical opinions, and 
evidence from non-medical persons about persistent and recurrent 
symptoms of disability they have observed; (2) disability during active 
duty for training from a disease or injury that was incurred or 
aggravated in line of duty, symptoms that were noted during active duty 
for training and that persisted until diagnosis of an injury or disease 
causing the symptoms, or an event during such training capable of 
causing injury or disease, which is generally established by medical 
treatment records, medical opinions and competent non-medical evidence 
based on personal observations; and (3) a relationship between the 
current disability and the disability suffered during active duty for 
training, which is generally established by medical treatment records 
or medical opinions. Subsection (a)(2) would also explain that the 
information and evidence must show the extent of the claimant's current 
disability, which may be based on medical treatment records, medical 
opinions, statements from the veteran's employer about how the 
disability affects the claimant's ability to work and from other people 
about how the claimant's symptoms affect the claimant.
    Section 3.160(a)(3) would state that VA will notify a claimant who 
files a claim based on inactive duty training that the following 
information and evidence is necessary to substantiate the claim: (1) A 
current disability, which is established by medical treatment records, 
medical opinions, and evidence from non-medical persons about 
persistent and recurrent symptoms of disability they have observed; (2) 
disability during inactive duty training from an injury that was 
incurred or aggravated during such training or an acute myocardial 
infarction, cardiac arrest, or cerebrovascular accident during such 
training, which is generally established by medical treatment records 
or medical opinions; and (3) a relationship between the claimant's 
current disability and the disability suffered during inactive duty 
training. Subsection (a)(3) would also explain that the information and 
evidence must show the extent of current disability, which may be based 
on medical treatment records, medical opinions, statements from the 
claimant's employer about how the disability affects the claimant's 
ability to work and from other people about how the claimant's symptoms 
affect the claimant.
    Section 3.160(b) would explain that, if a veteran files a claim 
alleging disability caused or aggravated by a service-connected 
disability, VA will notify the veteran that information and evidence of 
the following is necessary to substantiate the claim: (1) The veteran 
has a disability in addition to the service-connected disability, which 
is established by medical treatment

[[Page 65706]]

records, medical opinions, and evidence from non-medical persons about 
persistent and recurrent symptoms of disability they have observed; (2) 
a relationship between the additional disability and a service-
connected disability, which is generally established by medical 
treatment records and medical opinions; and (3) the extent of current 
disability, which may be based on medical treatment records, medical 
opinions, statements from the veteran's employer about how the 
disability affects the veteran's ability to work and from other people 
about how the veteran's symptoms affect the veteran.
    Section 3.160(c) would describe the notice that VA will provide 
upon receipt of an application for disability caused by VA treatment, 
vocational rehabilitation, or compensated work therapy. Section 
3.160(c) would explain that VA will notify the veteran that information 
and evidence of the following is necessary to substantiate the claim: 
(1) An additional physical or mental disability or an aggravation of an 
existing injury or disease, which is established by medical treatment 
records, medical opinions, and evidence from non-medical persons about 
persistent and recurrent symptoms of disability they have observed; (2) 
the veteran's additional disability or aggravation of an existing 
injury or disease was caused by VA hospital care, medical or surgical 
treatment or examination, VA training or rehabilitation services, or 
participation in VA's compensated work therapy program, which is 
generally established by medical treatment records and medical 
opinions; (3) the additional disability or aggravation caused by VA 
hospital care, medical or surgical treatment or examination was the 
direct result of VA fault (carelessness, negligence, lack of proper 
skill, or error in judgment) or was the direct result of an event not 
reasonably foreseeable (i.e., not an ordinary risk of the services 
provided); and (4) the extent of current additional disability, which 
may be based on medical treatment records, medical opinions, statements 
from the veteran's employer about how the disability affects the 
veteran's ability to work and from other people about how the veteran's 
symptoms affect the veteran.
    Section 3.161 would explain the notice that VA will provide upon 
receipt of an application seeking increased disability compensation. 
Section 3.161(a) would state that VA will notify a claimant the 
following information and evidence is necessary to substantiate a claim 
for an increased schedular rating: (1) An increase in the extent of the 
claimant's service-connected disability, which is based on medical 
treatment records, medical opinions, and statements from non-medical 
persons about persistent and recurrent symptoms of disability they have 
observed; and (2) the extent of current disability, which may be based 
on medical treatment records, medical opinions, statements from the 
veteran's employer about how the disability affects the veteran's 
ability to work and from other people about how the veteran's symptoms 
affect the veteran. VA will notify a claimant that VA will assign a 
rating for the disability from 0 to 100 percent under the VA Schedule 
for Rating Disabilities.
    Consistent with proposed new Sec.  3.159(d)(1), VA will not provide 
case-specific notice in increased-rating claims regarding the relevant 
rating criteria under diagnostic codes (DC) that are applicable to 
rating the current extent of a claimant's disability for the following 
reasons. First, as the Federal Circuit has explained, 38 U.S.C. 
5103(a)(1) is satisfied by generic notice regarding an increased-rating 
claim rather than veteran-specific notice regarding the DCs applicable 
to a particular veteran's claim. Vazquez-Flores, 2009 WL 2835434, *6, 
*10; Wilson, 506 F.3d at 1059-60; Paralyzed Veterans, 345 F.3d at 1347. 
We note as well that section 101(a) of the Veterans' Benefits 
Improvement Act of 2008 retained section 5103(a) as subsection (a)(1) 
and made no amendment to the provision. Thus, the unamended text of 38 
U.S.C. 5103(a)(1) does not require that VA provide case-specific notice 
of potentially applicable DCs.
    Second, notifying the claimant to submit evidence that their 
disability has increased in severity generally will put the claimant on 
notice to submit or direct VA's attention to all evidence that 
potentially may bear upon the severity of the disability. Third, many 
provisions in VA's rating schedule necessarily contain detailed medical 
criteria that would not be useful to claimants. A notice conveying 
extensive and often technical regulatory criteria will likely be long 
and complex, containing a great deal of medical language that can be 
confusing for the average reader, thereby diminishing its usefulness. 
See S. Rep. 110-449, at 8-9. Generic notice, on the other hand, will be 
more readily understandable and useful to claimants. Id. at 78. Fourth, 
it is VA's policy to assign a rating under the DC that most closely 
reflects the features of the current disability as shown by the medical 
evidence. This may require consideration of several potentially 
applicable DCs containing different criteria. Providing notice of the 
criteria under a single DC, such as that previously used in a 
particular case, may be misleading and may dissuade claimants from 
submitting all evidence bearing upon the current severity of their 
disabilities. At the same time, a notice conveying the requirements of 
several potentially applicable DCs, many of which may ultimately prove 
inapplicable upon development of the claim, may be confusing the 
claimant and may create unrealistic expectations. Fifth, providing 
notice tailored to the specific DCs potentially applicable to each 
claim requires time-consuming review in each case by VA employees in 
order to identify potentially applicable DCs based on the facts 
previously of record. The time devoted to such review would divert 
resources from the development and adjudication of claims and, for the 
reasons stated above, generally would not make VA's notices more 
helpful to claimants. By providing generic notice, VA will be able to 
focus its resources on adjudicating the more than 800,000 claims filed 
annually. Id.
    We recognize that the Senate Veterans' Affairs Committee report on 
Public Law 110-389 urges VA to codify in regulations the holding of 
Vazquez-Flores v. Peake, 22 Vet. App. 91 (2008), vacated, No. 2008-
7150, 2009 WL 2835434 (Fed. Cir. Sept. 4, 2009), in which the Veterans 
Court held that 38 U.S.C. 5103(a)(1) requires VA to provide case-
specific notice in increased-rating claims regarding the relevant DC 
criteria applicable to a claim. S. Rep. 110-449, at 11-12. However, VA 
believes, and the Federal Circuit concurs, that the Veterans Court's 
interpretation of section 5103(a)(1) does not accurately reflect the 
plain language of the statute and does not appropriately defer to VA's 
interpretation of the statute as reflected in former 38 CFR 3.159(b). 
Vazquez-Flores, 2009 WL 2835434, *6. In accordance with the provisions 
of Public Law 110-389 directing VA to prescribe regulations governing 
the content of VA notices under section 5103(a)(1), we propose to 
clarify our interpretation of the statute, consistent with the Federal 
Circuit's guidance in Vazquez-Flores and Wilson. With all due respect 
to the views expressed in the Committee report, such statements do not 
carry the force of law, particularly where they do not illuminate the 
meaning of the statutory terms, but merely express expectations that 
were not themselves reflected in the statute as passed. See Strickland 
v. Commissioner, Maine Dep't of Human Servs., 48 F.3d 12, 19 (1st Cir. 
1995). We

[[Page 65707]]

note that there was no mention of Vazquez-Flores during deliberations 
by the House of Representatives on Public Law 110-389. 154 Cong. Rec. 
H9387-H9405 (daily ed. Sept. 24, 2008). It is well established that 
expressions of expectations in isolated committee reports do not have 
the force of law, nor do they express the intent of Congress. See 
Strickland, 48 F.3d at 19 (declining to rely on legislative history 
comprised of ``one paragraph in one report of one of the two chambers 
that passed the law''); Scalise v. Thornburgh, 891 F.2d 640, 645 (7th 
Cir. 1989) (``An expression of an `expectation' by one committee of the 
House * * * does not establish congressional intent''); cf. Lincoln v. 
Vigil, 508 U.S. 182, 193 (1993) (``Congress may always circumscribe 
agency discretion to allocate resources by putting restrictions in the 
operative statutes (though not * * * just in the legislative 
history).''). In addition, section 101(b) of Public Law 110-389 
authorizes the Secretary of Veterans Affairs to prescribe regulations 
regarding the content of the notices that the Department will provide. 
The fact that Public Law 110-389 itself contains no language 
circumscribing in any way the Secretary's discretion to promulgate such 
regulations also leads us to conclude the ``expectation'' expressed in 
the Senate Committee report is not dispositive as to the notice that VA 
must provide upon receipt of a claim for an increased rating.
    Section 3.161(b) explains the notice that VA would provide upon 
receipt of an application for a rating of total disability based on 
individual unemployability. The notice would state that the information 
and evidence generally must establish that a veteran is unable to 
secure and follow substantial gainful employment because of a service-
connected disability rated at least 60 percent disabling or more than 
one service-connected disability with one disability rated at 40 
percent or more and a combined rating of at least 70 percent, but that 
VA will consider all evidence showing that the veteran is unemployable 
even if these ratings are not met. This determination may be based on 
medical treatment records, medical opinions, statements from the 
veteran's employer about how the disability affects the veteran and the 
veteran's ability to work, and statements from other people about how 
the veteran's symptoms affect the veteran.
    Section 3.161(c) would state that VA will notify a claimant that, 
to substantiate a claim for temporary total disability due to 
hospitalization, the information and evidence must show that the 
veteran was hospitalized for treatment for a service-connected 
disability in a VA hospital or an approved hospital for more than 21 
days or was hospitalized for observation for a service-connected 
disability at VA expense for more than 21 days. This is based on 
medical treatment records.
    Section 3.161(d) would state that VA would notify a claimant that 
to substantiate a claim for temporary total disability due to surgery 
or other treatment the information and evidence must show that the 
veteran received surgery at a VA or other approved hospital or 
outpatient facility for a service-connected disability and that the 
surgery required convalescence for at least 1 month or resulted in 
severe postoperative residuals (such as incompletely healed surgical 
wounds, stumps of recent amputations, therapeutic immobilizations, 
house confinement, or required use of a wheelchair or crutches), or 
that the veteran received treatment at a VA or other approved hospital 
or outpatient facility that resulted in immobilization by cast, without 
surgery, of at least one major joint. This is based on medical 
treatment records.
    Section 3.161(e) would state that VA would notify a claimant that 
to substantiate a claim for increased compensation because of the need 
for aid and attendance or bedridden status, medical treatment records, 
medical opinions, and competent non-medical evidence based on personal 
observations must show that the veteran requires the aid of another 
person to perform personal functions required in everyday living, such 
as bathing, feeding, or adjustment of prosthetics, or must remain in 
bed due to his or her disability or disabilities based on medical 
necessity and not based on a prescription of bed rest for purposes of 
convalescence or cure. VA also requires medical treatment records and 
medical reports showing that the veteran's need for aid and attendance 
or confinement to bed is a result of a service-connected disability.
    In Sec.  3.161(f), VA would state that, upon receipt of a claim for 
increased compensation based on being permanently housebound, VA will 
notify the claimant that the information and evidence must show that 
the veteran has a totally disabling service-connected disability. This 
may be based on medical treatment records, medical opinions, statements 
from the veteran's employer about how the disability affects the 
veteran's ability to work, and statements from other people about how 
the veteran's symptoms affect the veteran. The information and evidence 
must also show that the veteran is substantially confined to the 
veteran's house, ward or clinical areas if institutionalized, or 
immediate premises due to a service-connected disability or 
disabilities. This is established by medical treatment records, medical 
opinions, and statements from non-medical people about how the 
disability affects the veteran and the veteran's ability to function.
    Section 3.162 would explain the notice that VA would provide when a 
veteran files a claim for improved pension or increased pension. 
Section 3.162(a) would state that, if VA receives a claim for improved 
pension, VA will notify the claimant that the information and evidence 
must show the veteran served during a period of war.
    In addition, VA will notify the claimant that the information and 
evidence must show that the veteran is 65 years of age or older, or 
alternatively, that the veteran is permanently and totally disabled due 
to a nonservice-connected disability, which means that the veteran is a 
patient in a nursing home for long-term care, receiving social security 
disability benefits; unemployable due to a disability reasonably 
certain to continue through the veteran's lifetime; or suffering from a 
disability that is reasonably certain to continue through the veteran's 
lifetime and would make it impossible for the average person to follow 
a substantially gainful occupation; or suffering from a disease or 
disorder that VA believes justifies a determination that people who 
have the disease or disorder are permanently and totally disabled. This 
may be established by Social Security Administration records or medical 
treatment records, medical opinions, statements from the veteran's 
employer about how the disability affects the veteran and the veteran's 
ability to work, and statements from other people about how the 
veteran's symptoms affect the veteran. VA will also notify the claimant 
that the information and evidence must show that the claimant's annual 
income and net worth do not exceed certain limits.
    For reasons similar to those explained above concerning proposed 
Sec.  3.160, we do not propose to provide notice of the criteria 
governing effective dates as part of the notice under section 
5103(a)(1). By statute, the effective date of pension awards generally 
will be governed by the date of the application or by other facts that 
would necessarily be established by the evidence upon which the pension 
award is based. There ordinarily would be no other evidence relating 
solely to effective dates that would be necessary to substantiate a 
claim. However, in the event that

[[Page 65708]]

additional evidence would be relevant in a particular case at the stage 
of proceedings in which VA assigns an effective date, it may be 
addressed in the notices relevant to that stage of proceedings.
    Section 3.162(b) would explain the notice that VA will provide upon 
receipt of a claim for increased pension. VA will notify the claimant 
that medical treatment records, medical opinions, and competent non-
medical evidence based on personal observations must show that the 
claimant is in need of regular aid and attendance or is permanently 
housebound or, alternatively, the information and evidence must show 
that there has been a change in the claimant's income or net worth. A 
claimant is in need of regular aid and attendance if the claimant: (1) 
Has 5/200 visual acuity or less in both eyes; (2) has concentric 
contraction of the visual field to 5 degrees or less in both eyes; (3) 
is a patient in a nursing home because of mental or physical 
incapacity; or (4) requires the aid of another person in order to 
perform personal functions of everyday living, such as bathing, 
feeding, or adjusting a prosthetic device. A claimant is permanently 
housebound if the claimant is substantially confined to the claimant's 
house or immediate premises, or ward or clinical areas if 
institutionalized, because of a disability or disabilities and it is 
reasonably certain that the disability or disabilities will not improve 
during the claimant's lifetime.
    Section 3.163 would explain the notice that VA will provide upon 
receipt of a claim for benefits from a veteran's survivor. In addition 
to notice regarding the type of claim filed by a veteran's survivor, VA 
will also notify the claimant of the information and evidence necessary 
to substantiate a claim for accrued benefits because the claimant may 
be entitled to benefits that were due and unpaid the veteran at death.
    As set forth in Sec.  3.163(a)(1), VA will notify a survivor who 
files a claim for dependency and indemnity compensation (DIC) based on 
a death related to active duty that the information and evidence must 
show that: (1) The veteran died during active duty; (2) VA awarded the 
veteran service connection for a disease or injury and medical evidence 
shows that the disease or injury caused or contributed to the veteran's 
death; or (3) the veteran had a disease or injury that was incurred or 
aggravated during active duty or was caused by an event during active 
duty, as shown by medical evidence, competent non-medical evidence 
based on personal observations, and use of applicable legal 
presumptions, and medical evidence shows that the disease or injury 
caused or contributed to the veteran's death.
    We recognize that, in Hupp v. Nicholson, 21 Vet. App. 342, 352-53 
(2007), the Veterans Court held that notice in the context of a DIC 
claim ``must include (1) A statement of the conditions, if any, for 
which a veteran was service connected at the time of his or [her] 
death; (2) an explanation of the evidence and information required to 
substantiate a DIC claim based on a previously service-connected 
condition; and (3) an explanation of the evidence and information 
required to substantiate a DIC claim based on a condition not yet 
service-connected.'' The proposed rule would include the latter two 
components, but not the first. As explained above, the Federal Circuit 
stated in Vazquez-Flores, 2009 WL 2835434, *6, *10, and Wilson, 506 
F.3d at 1059, 1062, that the language in current section 5103(a)(1) 
requires generic notice tailored to the type of claim filed rather than 
veteran-specific notice. The notice required by Hupp, which was decided 
before Vazquez-Flores and Wilson, is not generic but rather would 
entail a review of the veteran's claim file to determine whether VA 
previously granted service connection for a veteran's disability.
    In VA's judgment and experience, the generic notice described in 
Sec.  3.163(a) would explain to a claimant the information and evidence 
necessary to substantiate a DIC claim based on a previously service-
connected disability as well as a claim based on a disability that was 
not previously service connected. DIC claimants are members of the 
veteran's immediate family and generally will know or can easily 
determine whether the veteran was granted service connection for any 
conditions. Moreover, VA will already have that information and will 
consider it in developing and deciding the claim. DIC claimants will 
not need to submit evidence of such awards. Additionally, the fact that 
VA previously awarded the veteran service connection for certain 
conditions would not preclude a DIC claimant from establishing service 
connection for a different condition that caused the veteran's death. 
Recitation of the veteran's previously service-connected conditions, 
which may have no bearing upon the DIC claim, is not necessary in order 
to notify the claimant of the information and evidence VA needs to 
substantiate the claim. Requiring such notices tailored to the specific 
facts of each DIC claim would impose unnecessary burdens and delays in 
VA's claim processing.
    Section 3.163(a)(2) would explain that VA will notify a survivor 
who files a claim for DIC based on a death related to active duty for 
training that the information and evidence must show one of the 
following: (1) That the veteran died during active duty for training; 
(2) that VA had granted the veteran service connection for a disease or 
injury and medical evidence shows that the service-connected disease or 
injury caused or contributed to the veteran's death; or (3) that the 
veteran was disabled during active duty for training due to a disease 
or injury incurred in the line of duty, as shown by medical evidence 
and competent non-medical evidence based on personal observation, and 
medical evidence shows that the disease or injury caused or contributed 
to the veteran's death.
    Section 3.163(a)(3) would explain that VA will notify a survivor 
who files a claim for DIC based on a death related to inactive duty 
training that the information and evidence must show that the veteran: 
(1) Died during inactive duty training due to an injury incurred or 
aggravated in line of duty or an acute myocardial infarction, cardiac 
arrest or cerebrovascular accident during such training, as shown by 
medical evidence and competent non-medical evidence based on personal 
observations; or (2) had a disability that was due to an injury 
incurred or aggravated during inactive duty training or an acute 
myocardial infarction, cardiac arrest, or cerebrovascular accident 
during such training, as shown by medical evidence and competent non-
medical evidence based on personal observations, and medical evidence 
shows that the injury, acute myocardial infarction, cardiac arrest, or 
cerebrovascular accident caused or contributed to the veteran's death.
    Section 3.163(a)(4) would explain that VA will notify a survivor 
who files a claim for DIC that, if the veteran did not die from a 
service-connected disability, DIC is payable if the veteran was 
receiving compensation from VA for a service-connected disability that 
was rated totally disabling. The veteran must have received, or been 
entitled to receive, compensation for at least 10 years immediately 
before death; at least 5 years immediately preceding death and 
continuously since the veteran's release from active duty; or at least 
1 year immediately preceding death, if the veteran was a former 
prisoner of war who died after September 30, 1999.
    Section 3.163(a)(5) would set forth the notice that VA would 
provide upon

[[Page 65709]]

receipt of a claim for DIC based upon a veteran's death caused by VA 
treatment, vocational rehabilitation or compensated work therapy. VA 
would notify the claimant that generally the medical treatment records 
and medical opinions must show that the veteran's death was caused by 
VA hospital care, medical or surgical treatment or examination, VA 
training or rehabilitation services, or participation in VA's 
compensated work therapy program. The evidence also must show that 
veteran's death, which was caused by VA hospital care, medical or 
surgical treatment or examination, was the direct result of VA fault 
(carelessness, negligence, lack of proper skill, or error in judgment) 
or was the direct result of an event not reasonably foreseeable (i.e., 
not an ordinary risk of the services provided). VA would notify the 
claimant that this requirement does not apply to claims based on VA 
training or rehabilitation services or compensated work therapy.
    In Sec.  3.163(b), VA would explain the notice that will be 
provided upon receipt of a claim for supplemental DIC for a veteran's 
child or parent. Section 3.163(b)(1) would state that, upon the receipt 
of a claim for supplemental DIC for a veteran's child, VA will provide 
notice that medical treatment records and medical opinions must show 
that the child, before his or her 18th birthday, became permanently 
incapable of self-support due to a mental or physical disability.
    Section 3.163(b)(2) would state that, upon receipt of a claim for 
supplemental DIC for a veteran's parent, VA will provide notice that 
medical treatment records and medical opinions must show that the 
parent has corrected visual acuity of 5/200 or less, in both eyes, or 
concentric contraction of the visual field to 5 degrees or less; or is 
a patient in a nursing home because of mental or physical incapacity; 
or requires the aid of another person in order to perform personal 
functions required in everyday living, such as bathing, feeding, and 
dressing.
    Section 3.163(c) would explain that, when VA receives a claim for 
improved pension from a veteran's surviving spouse or child, VA will 
notify the claimant that the information and evidence must show that 
the veteran served: (1) For ninety days or more during a period of war; 
(2) for ninety consecutive days, at least one of which was during a 
period of war; (3) for any length of time during a period of war and 
was discharged or released for a service-connected disability; or (4) 
for any length of time during a period of war and at the time of death 
was receiving or was entitled to receive VA compensation or service 
department retirement pay for a service-connected disability. The 
notice would further explain that the information and evidence must 
show that the claimant's annual income and net worth do not exceed 
certain limits.
    Section 3.163(d) would explain that, when VA receives a claim for 
increased pension from a veteran's surviving spouse, VA would provide 
notice that to substantiate the claim, medical treatment records, 
medical opinions, and competent non-medical evidence based on personal 
observations must show that the claimant is in need of regular aid and 
attendance or permanently housebound and would provide notice of the 
criteria for establishing need for regular aid and attendance or 
permanent housebound status. The notice would explain that a claimant 
is in need of regular aid and attendance if the claimant: (1) Has 5/200 
visual acuity or less in both eyes; (2) has concentric contraction of 
the visual field to 5 degrees or less in both eyes; (3) is a patient in 
a nursing home because of mental or physical incapacity; or (4) 
requires the aid of another person in order to perform personal 
functions of everyday living, such as bathing, feeding, or adjusting a 
prosthetic device. The notice would further explain that a claimant is 
permanently housebound if the claimant is substantially confined to the 
claimant's house or immediate premises because of a disability or 
disabilities and it is reasonably certain that the disability or 
disabilities will not improve during the claimant's lifetime.
    Section 3.163(e) would explain that, when VA receives a claim for 
accrued benefits and survivor benefits, VA would provide notice that to 
substantiate a claim for accrued benefits, the information and evidence 
must show that the benefits were awarded to the individual by a VA 
rating or decision before the individual died, or evidence in VA's 
possession on or before the date of the individual's death, even if 
such evidence was not physically located in the VA claims folder on or 
before the date of death, shows that the individual had applied for and 
was entitled to the benefits. VA would also notify the claimant that 
accrued benefits are paid to the following persons in the following 
order of priority: (1) Veteran's surviving spouse; (2) veteran's 
children (in equal shares); and (3) veteran's surviving dependent 
parents (in equal shares) or the surviving dependent parent if only one 
is living.
    Proposed new Sec.  3.164 would explain the notice that VA will 
provide upon receipt of an application for specially adapted housing, 
special home adaptation grant, allowance for an automobile or 
automobile adaptive equipment, clothing allowance, and monetary 
allowances for certain children provided under chapter 18 of title 38, 
United States Code.
    Section 3.164(a) would explain that, upon receipt of an application 
for specially adapted housing, VA would notify the claimant that 
medical treatment records and medical opinions must show that the 
veteran or servicemember on active duty is permanently and totally 
disabled due to one of the following: (1) Loss, or loss of use, of both 
lower extremities requiring the use of braces, crutches, canes, or a 
wheelchair to move from place to place; (2) blindness in both eyes so 
that the veteran can see only light, together with the loss, or loss of 
use of one lower extremity; (3) loss, or loss of use, of one lower 
extremity, together with a disease or injury that affects the veteran's 
balance or ability to move forward and requires the use of braces, 
crutches, canes, or a wheelchair in order to move from place to place; 
(4) loss, or loss of use, of one lower extremity, together with loss or 
loss of use of one upper extremity that affects the veteran's balance 
or ability to move forward and requires the use of braces, crutches, 
canes, or a wheelchair in order to move from place to place; (5) loss, 
or loss of use, of both upper extremities that prevents the veteran 
from using the arms at or above the elbows; or (6) severe burn injury. 
The notice would further explain that the information and evidence must 
show that the veteran or servicemember suffered the disability as a 
result of an injury, disease, or event in line of duty in the active 
military, naval or air service, or as the result of VA hospital care, 
medical or surgical treatment or examination under circumstances 
involving VA carelessness, negligence, lack of proper skill or error in 
judgment or an event not reasonably foreseeable, or as the result of VA 
training or rehabilitation services or participation in VA's 
compensated work therapy program.
    Section 3.164(b) would explain that upon receipt of a claim for a 
special home adaptation grant, VA would notify the claimant that 
medical treatment records and medical opinions must show that the 
veteran or servicemember on active duty is permanently and totally 
disabled due to a service-connected disability resulting from blindness 
in both eyes with 5/200 visual acuity or less; anatomical loss or loss 
of use of both hands; or severe burn injury. The notice would further 
explain that

[[Page 65710]]

the information and evidence must establish that the veteran or 
servicemember suffered the disability as a result of an injury, 
disease, or event in line of duty in the active military, naval or air 
service, or as the result of VA hospital care, medical or surgical 
treatment or examination under circumstances involving VA carelessness, 
negligence, lack of proper skill or error in judgment or an event not 
reasonably foreseeable, or as the result of VA training or 
rehabilitation services or participation in VA's compensated work 
therapy program.
    Section 3.164(c) would explain the notice that VA would give a 
claimant for an automobile allowance and/or adaptive equipment. VA 
would notify a claimant for an automobile allowance and adaptive 
equipment that medical treatment records and medical opinions must show 
that a veteran is entitled to compensation as a result of, or a 
servicemember on active duty is disabled due to the loss, or permanent 
loss of use, of at least a foot or a hand or permanent impairment of 
vision in both eyes, resulting in vision of 20/200 or less in the 
better eye with glasses or vision of 20/200 or better, if there is a 
severe defect in peripheral vision. The notice would further explain 
that the information and evidence must establish that the veteran or 
servicemember suffered the disability as a result of an injury, 
disease, or event in line of duty in the active military, naval or air 
service, or as a result of VA hospital care, medical or surgical 
treatment or examination under circumstances involving VA carelessness, 
negligence, lack of proper skill or error in judgment or an event not 
reasonably foreseeable, or as a result of VA training or rehabilitation 
services or participation in VA's compensated work therapy program.
    Further, VA would notify a claimant for adaptive equipment that 
such a claim may also be substantiated by information and evidence 
showing that a veteran is entitled to compensation for ankylosis of at 
least one knee or one hip. The information and evidence must show that 
the veteran suffered the disability as a result of an injury, disease, 
or event in line of duty in the active military, naval or air service, 
or as a result of VA hospital care, medical or surgical treatment or 
examination under circumstances involving VA carelessness, negligence, 
lack of proper skill or error in judgment or an event not reasonably 
foreseeable, or as a result of VA training or rehabilitation services 
or participation in VA's compensated work therapy program.
    Section 3.164(d) would explain the notice that VA will provide upon 
receipt of an application for a clothing allowance. VA would notify a 
claimant that the information and evidence must show that the veteran 
suffered a disability as a result of an injury, disease, or event in 
line of duty in the active military, naval or air service, or as a 
result of VA hospital care, medical or surgical treatment or 
examination under circumstances involving VA carelessness, negligence, 
lack of proper skill or error in judgment or an event not reasonably 
foreseeable, or as a result of VA training or rehabilitation services 
or participation in VA's compensated work therapy program. VA would 
also notify the claimant that a VA examination or hospital report or an 
examination report from a government or private facility must show that 
the veteran wears or uses a prosthetic or orthopedic appliance because 
the qualifying disability tends to wear out or tear the veteran's 
clothes, or the veteran uses prescription medication for a skin 
condition which is due to a qualifying disability and the medication 
causes irreparable damage to the veteran's outer garments.
    Section 3.164(e) would explain the notice that VA will provide upon 
receipt of an application for a monetary allowance for an individual 
with spina bifida born to a Vietnam veteran. VA will notify a claimant 
that the information and evidence must show that: (1) The individual's 
biological father or mother is or was a veteran who performed active 
military, naval, or air service in the Republic of Vietnam during the 
period beginning on January 9, 1962, and ending on May 7, 1975, 
including service in the waters offshore and service in other locations 
if the conditions of service involved duty or visitation in the 
Republic of Vietnam, and (2) the individual was conceived on or after 
the date on which the veteran first served in the Republic of Vietnam. 
VA would notify the claimant that this is based on evidence such as 
service department records and a birth certificate, church record of 
baptism, affidavit or certified statement from a physician or midwife 
present during the birth, or notarized copy of a Bible or other family 
record containing reference to the birth and medical treatment records 
and medical opinions showing that the individual has any form or 
manifestation of spina bifida except spina bifida occulta.
    VA would also notify the claimant that VA will examine the nature 
and severity of the individual's disability due to spina bifida and 
assign an evaluation of Level 1 to Level 3 by comparing the 
individual's symptoms to the criteria in Sec.  3.814 of title 38, Code 
of Federal Regulations, and that this is based on medical treatment 
records and reports and statements from the individual's employer and 
other people about how the disability affects the individual's ability 
to work and function.
    Section 3.164(f) would explain the notice that VA will provide upon 
receipt of an application for a monetary allowance for an individual 
with certain birth defects born to a female Vietnam veteran. VA will 
notify a claimant that the information and evidence must show that: (1) 
The individual's biological mother is or was a veteran who performed 
active military, naval, or air service in the Republic of Vietnam 
during the period beginning on February 28, 1961, and ending on May 7, 
1975, including service in the waters offshore and service in other 
locations if the conditions of service involved duty or visitation in 
the Republic of Vietnam; and (2) the individual was conceived on or 
after the date on which the veteran first served in the Republic of 
Vietnam. VA would notify the claimant that this is based on evidence 
such as service department records and a birth certificate, church 
record of baptism, affidavit or certified statement from a physician or 
midwife present during the birth, or notarized copy of a Bible or other 
family record containing reference to the birth and medical treatment 
records and medical opinions showing that the individual has a covered 
birth defect.
    VA would also notify the claimant that VA will examine the nature 
and severity of the individual's disability to the birth defect(s) and 
assign an evaluation of Level 1 to Level 3 by comparing the 
individual's symptoms to the criteria in Sec.  3.815 of title 38, Code 
of Federal Regulations, and that this is based on medical treatment 
records and reports and statements from the individual's employer and 
other people about how the disability affects the individual's ability 
to work and function.
    Proposed new Sec.  3.165 would explain the notice that VA will 
provide upon receipt of an application to reopen a previously denied 
claim based on new and material evidence. In Kent v. Nicholson, 20 Vet. 
App. 1, 9 (2006), the Veterans Court stated that ``VA must inform a 
claimant seeking to reopen a previously and finally disallowed claim of 
the unique character of evidence that must be presented'' because 
``[t]he terms `new' and `material' have specific, technical meanings 
that are not commonly known to VA claimants.''

[[Page 65711]]

Therefore, in addition to the notice described in Sec. Sec.  3.160 
through 3.164 regarding the type of benefit sought, VA will notify a 
claimant that ``new'' and ``material'' evidence is evidence not 
previously submitted to VA, that by itself or when considered with 
previous evidence of record, relates to an unestablished fact necessary 
to substantiate the claim and raises a reasonable possibility of 
substantiating the claim. However, we recognize that the Veterans Court 
also stated in Kent, 20 Vet. App. at 10, that, upon receipt of a claim 
to reopen, VA must ``look at the bases for the denial in the prior 
decision and * * * [provide] a notice letter that describe[s] what 
evidence would be necessary to substantiate th[e] element or elements * 
* * that were found insufficient in the previous denial.'' This holding 
in Kent, which requires VA to provide case-specific notice upon receipt 
of a claim to reopen, is inconsistent with the subsequent Federal 
Circuit decisions in Vazquez-Flores and Wilson, holding that section 
5103(a)(1) is satisfied by ``generic notice,'' i.e., notice that 
``identif[ies] the information and evidence necessary to substantiate 
the particular type of claim being asserted'' by a claimant and 
rejecting the argument that the statute requires specific notice of 
missing evidence with respect to a particular claim. 2009 WL 2835434, 
*6, *10; 506 F.3d at 1059-60. VA will therefore not provide such case-
specific notice to a claimant who has filed an application to reopen a 
previously denied claim. Pursuant to 38 U.S.C. 5104(b) and 7104(d)(1), 
if VA denies a claim, it must provide the claimant a written statement 
of the reasons for the denial and of the evidence considered. 
Accordingly, the type of notice to be provided under proposed Sec.  
3.165 will be sufficient to inform claimants as to the types of 
evidence needed to reopen a claim in view of the information previously 
provided to the claimants.
    In allowing VA to provide generic rather than case-specific notice 
upon receipt of a claim to reopen, proposed new Sec.  3.165 would 
promote the efficiency of the veterans' benefit adjudication process. 
VA currently receives approximately 800,000 claims annually, most of 
which require VA to provide notice under 38 U.S.C. 5103(a)(1). The type 
of notice that would be provided by VA upon receipt of a claim to 
reopen would allow the Department to respond quickly with notice that 
is easily understood by a claimant. The type of notice required by the 
Veterans Court in Kent, by contrast, imposes administrative burdens 
that, in VA's view, are not required by section 5103(a)(1) and that 
would result in undue delays in VA claims processing.
    We explain in Sec.  3.166 that VA will provide notice of the 
evidence and information necessary to substantiate a claim for any 
other benefit governed by part 3 of title 38, Code of Federal 
Regulations, consistent with the statutory and regulatory eligibility 
criteria for the benefit sought.

Paperwork Reduction Act of 1995

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

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 1 year. This proposed rule would have no such effect 
on State, local, and tribal governments, or on the private sector.

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) unless OMB waives such 
review, 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 proposed rule have been examined and it has been 
determined to be a significant regulatory action under Executive Order 
12866 because it may raise novel legal or policy issues arising out of 
legal mandates, the President's priorities, or the principles set forth 
in the Executive Order.

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed regulatory 
amendment would 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 
directly affect any small entities. Only individuals could be directly 
affected. 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.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
this program are 64.100, Automobiles and Adaptive Equipment for Certain 
Disabled Veterans and Members of the Armed Forces; 64.101, Burial 
Expenses Allowance for Veterans; 64.104, 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, Veterans, Vietnam.

    Approved: September 29, 2009.
John R. Gingrich,
Chief of Staff, Department of Veterans Affairs.

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

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. Revise Sec.  3.159 to read as follows:

[[Page 65712]]

Sec.  3.159  Notice to claimants of required information and evidence.

    (a) Definitions. For purposes of Sec. Sec.  3.159 through 3.166, 
the following definitions apply.
    (1) Substantially complete application means an application 
containing or identifying the claimant's name; his or her relationship 
to the veteran, if applicable; sufficient service information for VA to 
verify the claimed service, if applicable; the benefit claimed and any 
medical condition(s) on which it is based; the claimant's signature; 
and in claims for nonservice-connected disability or death pension and 
parents' dependency and indemnity compensation, a statement of income.
    (2) Type of claim filed means an original claim, claim to reopen a 
prior final decision on a claim, or a claim for increase in benefits.
    (3) Type of benefit sought means the general nature of the benefits 
sought, such as disability compensaton, increased compensation, 
dependency and indemnity compensation, and pension, rather than the 
specific disabilities, theories of entitlement, or other case-specific 
facts.
    (4) Information means non-evidentiary facts, such as the claimant's 
Social Security number or address; the name and military unit of a 
person who served with the veteran; or the name and address of a 
medical care provider who may have evidence pertinent to the claim.
    (5) Event means one or more incidents associated with places, 
types, and circumstances of service giving rise to disability.

(Authority: 38 U.S.C. 5103(a)(1) and (2))


    (b) For the purpose of the notice requirements in Sec. Sec.  3.159 
through 3.166, notice to the claimant means notice to the claimant or 
his or her fiduciary, if any, as well as to his or her representative, 
if any.

(Authority: 38 U.S.C. 5102(b), 5103(a)(1))


    (c) Notice of incomplete application. If VA receives an incomplete 
application for benefits, it will notify the claimant of the 
information necessary to complete the application and will defer 
assistance until the claimant submits this information.

(Authority: 38 U.S.C. 5103(a)(1) and (2))


    (d) Notice of required information and evidence--(1) Purpose. When 
VA receives a complete or substantially complete application for 
benefits, the Department will provide a claimant with notice of the 
general information and types of evidence that could be used by VA in 
deciding the type of claim filed for the type of benefit sought. This 
notice is intended to assist claimants in determining what types of 
information and evidence available to them may assist in substantiating 
their claims. VA generally will not, in this notice, identify specific 
evidence necessary to substantiate an individual claimant's case.

(Authority: 38 U.S.C. 5103(a)(1) and (2))


    (2) Content of notice. When VA receives a complete or substantially 
complete application for benefits, it will notify a claimant of--
    (i) the general information and evidence that is necessary to 
substantiate entitlement for the type of claim filed and benefit sought 
as set forth in Sec. Sec.  3.160 through 3.166.
    (ii) VA's obligation to--
    (A) Obtain relevant records that the claimant adequately identifies 
and authorizes VA to obtain from any Federal agency, including the 
Department of Defense, Social Security Administration and VA medical 
centers, or from any other entity or person; and
    (B) Provide a medical examination or obtain a medical opinion if 
necessary to decide a claim for disability compensation; and
    (iii) The claimant's obligation to--
    (A) Provide VA with enough information to identify and locate the 
existing records, including the person, company, agency, or other 
custodian holding the records; the approximate time frame covered by 
the records; and, in the case of medical treatment records, the 
condition for which treatment was provided; and
    (B) Authorize, if necessary, the release to VA of existing records 
in a form acceptable to the person, company, agency, or other custodian 
holding the records.

(Authority: 38 U.S.C. 5103(a)(1) and (2))


    (3) Circumstances under which VA will not provide notice. VA will 
not provide notice under Sec. Sec.  3.159 through 3.166 if:
    (i) The claim can be granted when the initial application is filed;
    (ii) The claimant has filed a notice of disagreement, unless the 
notice provided by VA prior to receipt of the notice of disagreement 
does not comply with this section; or
    (iii) As a matter of law, the claimant is not entitled to the 
benefit sought.

(Authority: 38 U.S.C. 5103(a)(1) and (2))


    (4) Time to respond.
    (i) A claimant must provide the information and evidence necessary 
to substantiate a claim that VA notifies a claimant to provide within 1 
year of the date of the notice. If the information and evidence is not 
received by VA within 1 year, VA cannot pay or provide any benefits 
based on the application.
    (ii) If the claimant has not responded to VA's request for 
information or evidence within 30 days, VA may decide the claim prior 
to the expiration of the 1-year period based on all the information and 
evidence contained in the file, including information and evidence it 
has obtained on behalf of the claimant and any VA medical examinations 
or medical opinions. If VA does so, however, and the claimant 
subsequently provides the information and evidence within 1 year of the 
date of the request, VA must readjudicate the claim.

(Authority: 38 U.S.C. 5103(a)(1) and (2) and (b))


    3. Redesignate Sec. Sec.  3.160 and 3.161 as Sec. Sec.  3.170 and 
3.171 respectively.
    4. Add new Sec. Sec.  3.160 through 3.167 to read as follows:

Sec.
3.160 Notice upon receipt of application for disability 
compensation.
3.161 Notice upon receipt of application for increased disability 
compensation.
3.162 Notice upon receipt of application for improved pension.
3.163 Notice upon receipt of application for survivor benefits.
3.164 Notice upon receipt of application for special benefits.
3.165 Notice upon receipt of claim to reopen based on new and 
material evidence.
3.166 Notice upon receipt of claim for other benefits governed by 
part 3.
3.167 VA's duty to assist claimants in obtaining evidence.


Sec.  3.160  Notice upon receipt of application for disability 
compensation.

    (a) Compensation for service-connected disability. VA will notify a 
claimant that information and evidence of the following is necessary to 
substantiate an original or reopened claim for service connection for a 
veteran's disability:
    (1) Active Duty. (i) Existence of a disability. The veteran has a 
current physical or mental disability. This is established by medical 
treatment records, medical opinions, and evidence from non-medical 
persons about persistent and recurrent symptoms of disability they have 
observed.
    (ii) Inservice incurrence or aggravation. Medical treatment 
records, medical opinions, and, in certain circumstances, evidence from 
non-medical persons show that the veteran had--
    (A) An injury or disease that was incurred or aggravated in 
service;
    (B) Symptoms that were noted during service or during an applicable 
presumptive period and that persisted

[[Page 65713]]

until diagnosis of an injury or disease causing the symptoms; or
    (C) An event in service capable of causing injury or disease.
    (iii) Relationship between the current disability and an injury, 
disease, symptoms, or event during military service. There is a 
relationship between the veteran's inservice disease, injury, symptoms, 
or event and the current disability, which is generally established by 
medical treatment records, medical opinions, or by use of a legal 
presumption that the disability is related to a particular type of 
military service, such as detention as a prisoner of war, participation 
in a radiation-risk activity, or service in Vietnam or the Southwest 
Asia theater of operations during the Gulf War.
    (iv) Extent of disability. VA will examine the nature, duration, 
and severity of the veteran's symptoms and assign a disability rating 
from 0 percent to 100 percent by comparing the symptoms to the criteria 
in the VA Schedule for Rating Disabilities found in title 38, Code of 
Federal Regulations. This may be based on medical treatment records, 
medical opinions, statements from the veteran's employer about how the 
veteran's symptoms affect the veteran's ability to work and from other 
people about how the veteran's symptoms affect the veteran.
    (2) Active Duty for Training. (i) Existence of a disability. The 
claimant has a current physical or mental disability. This is 
established by medical treatment records, medical opinions, and 
evidence from non-medical persons about persistent and recurrent 
symptoms of disability they have observed.
    (ii) Disability during active duty for training. The claimant was 
disabled during active duty for training from--
    (A) A disease or injury that was incurred or aggravated in line of 
duty, which is generally established by medical treatment records and 
medical opinions;
    (B) Symptoms that were noted during active duty for training and 
that persisted until diagnosis of an injury or disease causing the 
symptoms, which is established by medical treatment records, medical 
opinions and competent non-medical evidence based on personal 
observations; or
    (C) An event during active duty for training capable of causing 
injury or disease.
    (iii) Relationship between the current disability and disability 
during active duty for training. The claimant's current disability is 
due to the disability suffered during active duty for training. This is 
generally established by medical treatment records and medical 
opinions.
    (iv) Extent of disability. VA will examine the nature, duration, 
and severity of the claimant's symptoms and assign a disability rating 
from 0 percent to 100 percent by comparing the symptoms to the criteria 
in the VA Schedule for Rating Disabilities found in title 38, Code of 
Federal Regulations. This may be based on medical treatment records, 
medical opinions, statements from the veteran's employer about how the 
disability affects the claimant's ability to work, and statements from 
other people about how the claimant's symptoms affect the claimant.
    (3) Inactive Duty Training. (i) Existence of a disability. The 
claimant has a current physical or mental disability. This is 
established by medical treatment records, medical opinions, and 
evidence from non-medical persons about persistent and recurrent 
symptoms of disability they have observed.
    (ii) Disability during inactive duty training. Medical treatment 
records, medical opinions, and competent non-medical evidence based on 
personal observations show that the claimant was disabled during 
inactive duty training from--
    (A) An injury incurred or aggravated during inactive duty training;
    (B) An acute myocardial infarction;
    (C) A cardiac arrest; or
    (D) A cerebrovascular accident.
    (iii) Relationship between the current disability and disability 
during inactive duty for training. The claimant's current disability is 
due to the disability suffered during inactive duty training. This is 
generally established by medical treatment records, medical opinions, 
and competent non-medical evidence based on personal observations.
    (iv) Extent of disability. VA will examine the nature, duration, 
and severity of the claimant's symptoms and assign a disability rating 
from 0 percent to 100 percent by comparing the symptoms to the criteria 
in the VA Schedule for Rating Disabilities found in title 38, Code of 
Federal Regulations. This may be based on medical treatment records, 
medical opinions, statements from the claimant's employer about how the 
disability affects the claimant's ability to work, and statements from 
other people about how the claimant's symptoms affect the claimant.
    (b) Compensation for Disability Caused or Aggravated by Service-
Connected Disability (Secondary Service Connection)--(1) Existence of 
additional disability. The veteran has a current physical or mental 
disability in addition to the veteran's service-connected disability. 
This is established by medical treatment records, medical opinions, and 
evidence from non-medical persons about persistent and recurrent 
symptoms of disability they have observed.
    (2) Relationship between the additional disability and a service-
connected disability. The veteran's additional disability is related to 
the veteran's service-connected disability. This is generally 
established by medical treatment records and medical opinions.
    (3) Extent of disability. VA will examine the nature, duration, and 
severity of the veteran's symptoms and assign a disability rating from 
0 percent to 100 percent by comparing the symptoms to the criteria in 
the VA Schedule for Rating Disabilities found in title 38, Code of 
Federal Regulations. This may be based on medical treatment records, 
medical opinions, statements from the veteran's employer about how the 
additional disability affects the veteran's ability to work, and 
statements from other people about how the veteran's symptoms affect 
the veteran.
    (c) Disability caused by VA treatment, vocational rehabilitation, 
or compensated work therapy--(1) Existence of an additional disability 
or aggravation of existing injury or disease. The veteran has an 
additional physical or mental disability or an aggravation of an 
existing injury or disease. This is established by medical treatment 
records, medical opinions, and evidence from non-medical persons about 
persistent and recurrent symptoms of disability they have observed.
    (2) Relationship between the additional disability or aggravation 
and VA treatment, VA vocational rehabilitation, or compensated work 
therapy. The veteran's additional disability or aggravation of an 
existing injury or disease was caused by VA hospital care, medical or 
surgical treatment or examination, VA training or rehabilitation 
services, or participation in VA's compensated work therapy program. 
This is generally established by medical treatment records and medical 
opinions.
    (3) VA fault. The additional disability or aggravation caused by VA 
hospital care, medical or surgical treatment or examination was the 
direct result of VA fault (carelessness, negligence, lack of proper 
skill, or error in judgment) or was the direct result of an event not 
reasonably foreseeable (i.e., not an ordinary risk of the services 
provided). This requirement does not apply to claims based on VA 
training or rehabilitation services or compensated work therapy.

[[Page 65714]]

    (4) Extent of disability. VA will examine the nature, duration, and 
severity of the veteran's symptoms and assign a disability rating from 
0 percent to 100 percent by comparing the symptoms to the criteria in 
the VA Schedule for Rating Disabilities found in title 38, Code of 
Federal Regulations. This may be based on medical treatment records, 
medical opinions, statements from the veteran's employer about how the 
additional disability affects the veteran's ability to work, and 
statements from other people about how the veteran's symptoms affect 
the veteran.

(Authority: 38 U.S.C. 5103(a)(1) and (2))

Sec.  3.161  Notice upon receipt of application for increased 
disability compensation.

    VA will notify a claimant that information and evidence of the 
following is necessary to substantiate the following types of claims 
for increased disability compensation:
    (a) Increased schedular rating for a service-connected disability--
(1) Increase in extent of service-connected disability. The veteran's 
service-connected disability has gotten worse or increased in severity. 
This is based on medical treatment records, medical opinions, and 
statements from non-medical persons about persistent and recurrent 
symptoms of disability they have observed.
    (2) Current extent of disability. VA will examine evidence 
regarding the nature, duration, and severity of the veteran's symptoms 
and assign a disability rating from 0 percent to 100 percent by 
comparing the veteran's current symptoms to the criteria in the VA 
Schedule for Rating Disabilities found in title 38, Code of Federal 
Regulations. This may be based on medical treatment records, medical 
opinions, statements from the veteran's employer about how the 
additional disability affects the veteran's ability to work, and 
statements from other people about how the veteran's symptoms affect 
the veteran.
    (b) Total Disability Rating for Individual Unemployability. VA will 
examine the evidence to determine whether a veteran is unable to secure 
and follow substantial gainful employment because of a service-
connected disability rated at least 60 percent disabling or more than 
one service-connected disability with one disability rated at 40 
percent or more and a combined rating of at least 70 percent, or 
whether the veteran is unemployable due to service-connected disability 
even if these ratings are not met. This may be based on medical 
treatment records, medical opinions, statements from the veteran's 
employer about how the disability affects the veteran and the veteran's 
ability to work, and statements from other people about how the 
veteran's symptoms affect the veteran.
    (c) Temporary total disability due to hospitalization. The veteran 
was hospitalized for treatment for a service-connected disability in a 
VA hospital or an approved hospital for more than 21 days or was 
hospitalized for observation for a service-connected disability at VA 
expense for more than 21 days. This is based on medical treatment 
records.
    (d) Temporary total disability due to surgery or other treatment. 
The veteran received surgery at a VA or other approved hospital or 
outpatient facility for a service-connected disability and the surgery 
required convalescence for at least 1 month or resulted in severe 
postoperative residuals (such as incompletely healed surgical wounds, 
stumps of recent amputations, therapeutic immobilizations, house 
confinement, or required use of a wheelchair or crutches), or the 
veteran received treatment at a VA or other approved hospital or 
outpatient facility that resulted in immobilization by cast, without 
surgery, of at least one major joint. This is based on medical 
treatment records, particularly on reports of hospital discharge or 
release from outpatient treatment.
    (e) Aid and attendance or bedridden. The information and evidence 
must show that, as a result of a service-connected disability, the 
veteran is in need of aid and attendance or confined to bed.
    (1) Need for aid and attendance or confinement. The veteran 
requires the aid of another person to perform personal functions 
required in everyday living, such as bathing, feeding, or adjustment of 
prosthetics, or must remain in bed due to his or her disability or 
disabilities based on medical necessity and not based on a prescription 
of bed rest for purposes of convalescence or cure. This is shown by 
medical treatment records, medical opinions, and competent non-medical 
evidence based on personal observations.
    (2) Relationship between service-connected disability and need for 
aid and attendance or confinement. The veteran's need for aid and 
attendance or confinement to bed is a result of a service-connected 
disability. This is shown by medical treatment records and medical 
opinions.
    (f) Permanently housebound--(1) Totally disabling service-connected 
disability. The veteran has a totally disabling service-connected 
disability. This may be based on medical treatment records, medical 
opinions, statements from the veteran's employer about how the 
disability affects the veteran's ability to work, and statements from 
other people about how the veteran's symptoms affect the veteran.
    (2) Nature of Confinement. The veteran is substantially confined to 
the veteran's house, ward or clinical areas if institutionalized, or 
immediate premises. This is established by medical treatment records 
and medical opinions.
    (3) Relationship between confinement and service-connected 
disability. The veteran's confinement is a result of service-connected 
disability or disabilities, which are reasonably certain to remain 
throughout the veteran's lifetime. This is generally established by 
medical treatment records and medical opinions.

(Authority: 38 U.S.C. 5103(a)(1) and (2))

Sec.  3.162  Notice upon receipt of application for improved pension.

    VA will notify a claimant that information and evidence of the 
following is necessary to substantiate a claim for improved pension or 
increased pension:
    (a) Improved pension. VA will notify a claimant that information 
and evidence of the following is necessary to substantiate a claim for 
improved pension--
    (1) The veteran served during a period of war.
    (2) The veteran is 65 years of age or older or permanently and 
totally disabled due to a nonservice-connected disability, which is 
shown by Social Security Administration records or medical treatment 
records, medical opinions, statements from the veteran's employer about 
how the disability affects the claimant and the veteran's ability to 
work, and statements from other people about how the veteran's symptoms 
affect the veteran. Permanently and totally disabled means that the 
veteran is:
    (i) A patient in a nursing home for long-term care;
    (ii) Receiving social security disability benefits;
    (iii) Unemployable due to a disability reasonably certain to 
continue through the veteran's lifetime;
    (iv) Suffering from a disability that is reasonably certain to 
continue through the veteran's lifetime and would make it impossible 
for the average person to follow a substantially gainful occupation; or
    (v) Suffering from a disease or disorder that VA believes justifies 
a determination that people who have the disease are disorder are 
permanently and totally disabled.

[[Page 65715]]

    (3) The claimant's annual income and net worth do not exceed 
certain limits.
    (b) Increased pension. VA will notify a claimant that medical 
treatment records, medical opinions, and competent non-medical evidence 
based on personal observations must show that the claimant is in need 
of regular aid and attendance or is permanently housebound or, 
alternatively, the information and evidence must show that there is a 
change in the claimant's income or net worth.
    (1) A claimant is in need of regular aid and attendance if the 
claimant--
    (i) Has 5/200 visual acuity or less in both eyes;
    (ii) Has concentric contraction of the visual field to 5 degrees or 
less in both eyes;
    (iii) Is a patient in a nursing home because of mental or physical 
incapacity; or
    (iv) Requires the aid of another person in order to perform 
personal functions of everyday living, such as bathing, feeding, or 
adjusting a prosthetic device.
    (2) A claimant is permanently housebound if the claimant is 
substantially confined to the claimant's house or immediate premises, 
or ward or clinical area if institutionalized, because of a disability 
or disabilities and it is reasonably certain that the disability or 
disabilities will not improve during the claimant's lifetime.

(Authority: 38 U.S.C. 5103(a)(1) and (2))

Sec.  3.163  Notice upon receipt of application for survivor benefits.

    VA will notify a claimant that information and evidence of the 
following is necessary to substantiate the following types of claims 
for survivor benefits and, in addition to the notice described in 
paragraphs (a) through (d) of this section, as applicable, VA will also 
provide each applicant for survivor benefits the notice described in 
paragraph (e) of this section:
    (a) Dependency and indemnity compensation--(1) Death related to 
active duty. VA will notify the claimant that the information and 
evidence must show any of the following in order to substantiate a 
claim for dependency and indemnity compensation for death related to 
active duty:
    (i) The veteran died while on active duty;
    (ii) VA had granted the veteran service connection for a disease or 
injury and medical evidence shows that the service-connected disease or 
injury caused or contributed to the veteran's death; or
    (iii) The veteran had a disease or injury that was incurred or 
aggravated during active duty or was caused by an event during active 
duty, as shown by medical evidence, competent non-medical evidence 
based on personal observations, and use of applicable legal 
presumptions, and medical evidence shows that the disease or injury 
caused or contributed to the veteran's death.
    (2) Death related to active duty for training. VA will notify the 
claimant that the information and evidence must show the following in 
order to substantiate a claim for dependency and indemnity compensation 
for death related to active duty for training:
    (i) The veteran died during active duty for training;
    (ii) VA had granted the veteran service connection for a disease or 
injury and medical evidence shows that the service-connected disease or 
injury caused or contributed to the veteran's death; or
    (iii) The veteran was disabled during active duty for training due 
to a disease or injury incurred in the line of duty, as shown by 
medical evidence and competent non-medical evidence based on personal 
observation, and medical evidence shows that the disease or injury 
caused or contributed to the veteran's death.
    (3) Death related to inactive duty training. VA will notify the 
claimant that the information and evidence must show the following in 
order to substantiate a claim for dependency and indemnity compensation 
for death related to inactive duty training:
    (i) The veteran died during inactive duty training due to an injury 
incurred or aggravated in line of duty or an acute myocardial 
infarction, cardiac arrest or cerebrovascular accident during such 
training, as shown by medical evidence and competent non-medical 
evidence based on personal observations; or
    (ii) The veteran had a disability that was due to an injury 
incurred or aggravated during inactive duty training or an acute 
myocardial infarction, cardiac arrest, or cerebrovascular accident 
during such training, as shown by medical evidence and competent non-
medical evidence based on personal observations, and medical evidence 
shows that the injury, acute myocardial infarction, cardiac arrest, or 
cerebrovascular accident caused or contributed to the veteran's death.
    (4) Death from nonservice-connected disability. In addition to 
providing notice under paragraphs (a)(1), (a)(2), or (a)(3) of this 
section as appropriate based on the veteran's service, VA will notify 
claimants for dependency and indemnity compensation that, if the 
veteran did not die from a service-connected disability, dependency and 
indemnity compensation is payable if the information and evidence shows 
that the veteran was receiving or was entitled to receive compensation 
from VA for a service-connected disability that was rated totally 
disabling for--
    (i) At least 10 years immediately preceding death;
    (ii) At least 5 years immediately preceding death and continuing 
since the veteran's release from active duty; or
    (iii) At least 1 year immediately preceding death, if the veteran 
was a former prisoner of war who died after September 30, 1999.
    (5) Death caused by VA treatment, vocational rehabilitation, or 
compensated work therapy. VA will notify the claimant that the 
information and evidence must show the following in order to 
substantiate a claim for dependency and indemnity compensation for 
death caused by VA treatment, vocational rehabilitation or compensated 
work therapy:

    (i) The veteran's death was caused by VA hospital care, medical or 
surgical treatment or examination, VA training or rehabilitation 
services, or participation in VA's compensated work therapy program. 
This is generally established by medical treatment records and medical 
opinions.
    (ii) The veteran's death caused by VA hospital care, medical or 
surgical treatment or examination was the direct result of VA fault 
(carelessness, negligence, lack of proper skill, or error in judgment) 
or was the direct result of an event not reasonably foreseeable (i.e., 
not an ordinary risk of the services provided). This requirement does 
not apply to claims based on VA training or rehabilitation services or 
compensated work therapy.
    (b) Supplemental dependency and indemnity compensation. VA will 
notify the claimant that the following evidence is needed to 
substantiate a claim for supplemental dependency and indemnity 
compensation:
    (1) For a child. Medical treatment records and medical opinions 
must show that a veteran's child, before his or her 18th birthday, 
became permanently incapable of self-support due to a mental or 
physical disability.
    (2) For parents. Medical treatment records and medical opinions 
must show that a veteran's parent is in need of the aid and attendance, 
which means that the parent--
    (i) Has corrected visual acuity of 5/200 or less, in both eyes, or 
concentric contraction of the visual field to 5 degrees or less; or
    (ii) Is a patient in a nursing home because of mental or physical 
incapacity; or

[[Page 65716]]

    (iii) Requires the aid of another person in order to perform 
personal functions required in everyday living, such as bathing, 
feeding, and dressing.
    (c) Improved pension for veteran's surviving spouse or child. VA 
will notify a veteran's surviving spouse or child claiming improved 
pension that information and evidence of the following is needed to 
substantiate the claim:
    (1) The veteran served in the active military, naval, or air 
service--
    (i) For ninety days or more during a period of war;
    (ii) For ninety consecutive days, at least one of which was during 
a period of war;
    (iii) For any length of time during a period of war and was 
discharged or released from such service for a service-connected 
disability; or
    (iv) For any length of time during a period of war and at the time 
of death was receiving or was entitled to receive VA disability 
compensation or service department retirement pay for a service-
connected disability; and
    (2) The claimant's annual income and net worth do not exceed 
certain limits.
    (d) Increased pension for veteran's surviving spouse. VA will 
notify a veteran's surviving spouse claiming increased pension that 
information and evidence of the following is needed to substantiate the 
claim:

    (1) Medical treatment records, medical opinions, and competent non-
medical evidence based on personal observations must show that the 
surviving spouse is--
    (i) In need of regular aid and attendance, which means the 
surviving spouse--
    (A) Has visual acuity of 5/200 or less in both eyes;
    (B) Has concentric contraction of the visual field to 5 degrees or 
less in both eyes;
    (C) Is a patient in a nursing home because of mental or physical 
incapacity; or
    (D) Requires the aid of another person in order to perform personal 
functions of everyday living, such as bathing, feeding, or adjusting a 
prosthetic device.
    (2) Permanently housebound, which means that the surviving spouse 
is substantially confined to the house or immediate premises because of 
a disability or disabilities and it is reasonably certain that the 
disability or disabilities will not improve during the claimant's 
lifetime.
    (e) Accrued benefits. VA will notify a claimant for accrued 
benefits and a claimant for survivor benefits that the following 
information and evidence is necessary to substantiate a claim for 
periodic monetary VA benefits that were due, but not paid to, an 
individual before the individual's death.
    (1) The benefits were awarded to the individual by a VA rating or 
decision before the individual died; or
    (2) Evidence in VA's possession on or before the date of the 
individual's death, even if such evidence was not physically located in 
the VA claims folder on or before the date of death, shows that the 
individual had applied for and was entitled to the benefits.
    (3) Accrued benefits are paid to the following persons in the 
following order of priority:
    (i) Veteran's surviving spouse.
    (ii) Veteran's children (in equal shares).
    (iii) Veteran's surviving dependent parents (in equal shares) or 
the surviving dependent parent if only one is living.

(Authority: 38 U.S.C. 5103(a)(1) and (2))

Sec.  3.164  Notice upon receipt of application for special benefits.

    VA will notify a claimant that the following information and 
evidence is necessary to substantiate the claims for special benefits.
    (a) Specially Adapted Housing. For purposes of a claim for 
specially adapted housing--
    (1) Permanent and total disability. Medical treatment records and 
medical opinions must show that the veteran or servicemember on active 
duty has a permanent disability resulting from--
    (i) Loss, or loss of use, of both lower extremities requiring the 
use of braces, crutches, canes, or a wheelchair to move from place to 
place;
    (ii) Blindness in both eyes so that the veteran can see only light, 
together with the loss, or loss of use of one lower extremity;
    (iii) Loss, or loss of use, of one lower extremity, together with a 
disease or injury that affects the veteran's balance or ability to move 
forward and requires the use of braces, crutches, canes, or a 
wheelchair in order to move from place to place;
    (iv) Loss, or loss of use, of one lower extremity, together with 
loss or loss of use of one upper extremity that affects the veteran's 
balance or ability to move forward and requires the use of braces, 
crutches, canes, or a wheelchair in order to move from place to place;
    (v) Loss, or loss of use, of both upper extremities that prevents 
the veteran from using the arms at or above the elbows; or
    (vi) Severe burn injury.
    (2) Cause of disability. Medical treatment records, medical 
opinions, or use of a legal presumption that the disability is related 
to a particular type of military service, such as detention as a 
prisoner of war, participation in a radiation-risk activity, or service 
in Vietnam or the Southwest Asia theater of operations during the Gulf 
War show that the veteran or servicemember suffered the disability as a 
result of--
    (i) An injury, disease, or event in line of duty in the active 
military, naval or air service; or
    (ii) VA hospital care, medical or surgical treatment or examination 
under circumstances involving VA carelessness, negligence, lack of 
proper skill or error in judgment or an event not reasonably 
foreseeable, or
    (iii) VA training or rehabilitation services or participation in 
VA's compensated work therapy program.
    (b) Special Home Adaptation Grant. For purposes of a claim for a 
special home adaptation grant--
    (1) Nature of disability. Medical treatment records and medical 
opinions must show that the veteran or servicemember on active duty has 
a permanent disability resulting from--
    (i) Blindness in both eyes with 5/200 visual acuity or less;
    (ii) Anatomical loss or loss of use of both hands; or
    (iii) Severe burn injury.
    (2) Cause of disability. Information and evidence must show that 
the veteran or servicemember suffered the disability as a result of--
    (i) An injury, disease, or event in line of duty in the active 
military, naval or air service;
    (ii) VA hospital care, medical or surgical treatment or examination 
under circumstances involving VA carelessness, negligence, lack of 
proper skill or error in judgment or an event not reasonably 
foreseeable; or
    (iii) VA training or rehabilitation services or participation in 
VA's compensated work therapy program.
    (c) Allowance for Automobile or Adaptive Equipment. For purposes of 
a claim for an automobile allowance or adaptive equipment--(1) 
Eligibility for Automobile allowance and adaptive equipment. (i) Nature 
of Disability. Medical treatment records and medical opinions must show 
that the veteran is entitled to compensation for, or servicemember on 
active duty has, a current disability resulting from--
    (A) The loss, or permanent loss of use, of at least a foot or a 
hand; or
    (B) Permanent impairment of vision in both eyes, resulting in 
vision of 20/200 or less in the better eye with glasses or vision of 
20/200 or better, if there is a severe defect in peripheral vision.
    (ii) Cause of disability. Information and evidence must show that 
the

[[Page 65717]]

veteran or servicemember suffered the disability as a result of--
    (A) An injury, disease, or event in line of duty in the active 
military, naval or air service;
    (B) VA hospital care, medical or surgical treatment or examination 
under circumstances involving VA carelessness, negligence, or lack of 
proper skill or judgment or an event not reasonably foreseeable; or
    (C) VA training or rehabilitation services or participation in VA's 
compensated work therapy program.
    (2) Eligibility for adaptive equipment only. (i) Nature of 
disability. Medical treatment records and medical opinions must show 
that the veteran has a disability resulting from ankylosis of at least 
one knee or one hip.
    (ii) Cause of disability. Information and evidence must show that 
the veteran suffered the disability as a result of--
    (A) An injury, disease, or event in line of duty in the active 
military, naval or air service;
    (B) VA hospital care, medical or surgical treatment or examination 
under circumstances involving VA carelessness, negligence, or lack of 
proper skill or error in judgment or an event not reasonably 
foreseeable; or
    (C) VA training or rehabilitation services or participation in VA's 
compensated work therapy program.
    (d) Clothing Allowance. For purposes of a claim for a clothing 
allowance--
    (1) Information and evidence must show that the veteran suffered a 
disability as a result of--
    (i) An injury, disease, or event in line of duty in the active 
military, naval or air service;
    (ii) VA hospital care, medical or surgical treatment or examination 
under circumstances involving VA carelessness, negligence, lack of 
proper skill or error in judgment or an event not reasonably 
foreseeable; or
    (iii) VA training or rehabilitation services or participation in 
VA's compensated work therapy program; and
    (2) The veteran wears or uses a prosthetic or orthopedic appliance 
because the qualifying disability that tends to wear out or tear the 
veteran's clothing, or the veteran uses prescription medication for a 
skin condition which is due to a qualifying disability and the 
medication causes irreparable damage to the veteran's outer garments. 
This is based on a VA examination or hospital report or an examination 
report from a government or private facility.
    (e) Monetary allowance for individuals with spina bifida born to 
Vietnam veterans. For purposes of a claim for a monetary allowance for 
an individual with spina bifida born to a Vietnam veteran--
    (1) Eligible individual. A monetary allowance is payable to or for 
an individual, regardless of age or marital status if evidence such as 
service department records and a birth certificate, church record of 
baptism, affidavit or certified statement from a physician or midwife 
present during the individual's birth, or notarized copy of a Bible or 
other family record containing reference to the birth shows that--
    (i) The individual's biological father or mother is or was a 
veteran who performed active military, naval, or air service in the 
Republic of Vietnam during the period beginning on January 9, 1962, and 
ending on May 7, 1975, including service in the waters offshore and 
service in other locations if the conditions of service involved duty 
or visitation in the Republic of Vietnam; and
    (ii) The individual was conceived on or after the date on which the 
veteran first served in the Republic of Vietnam.
    (2) Spina bifida. Medical treatment records and medical opinions 
must show that the individual has any form or manifestation of spina 
bifida except spina bifida occulta.
    (3) Extent of current disability. VA will examine the nature and 
severity of the individual's disability due to spina bifida and assign 
an evaluation of Level 1 to Level 3 by comparing the individual's 
symptoms to the criteria in Sec.  3.814. This may be based on medical 
treatment records and reports and statements from the individual's 
employer and other people about how the disability affects the 
individual's ability to work and function.
    (f) Monetary allowance for individuals with certain birth defects 
born to female Vietnam veterans. For purposes of a claim for a monetary 
allowance for an individual with certain birth defects born to a female 
Vietnam veteran--
    (1) Eligible individual. A monetary allowance is payable to or for 
an individual, regardless of age or marital status if evidence such as 
service department records and a birth certificate, church record of 
baptism, affidavit or certified statement from a physician or midwife 
present during the individual's birth, or notarized copy of a Bible or 
other family record containing reference to the birth shows that--
    (i) The individual's biological mother is or was a veteran who 
performed active military, naval, or air service in the Republic of 
Vietnam during the period beginning February 28, 1961, and ending on 
May 7, 1975, including service in the waters offshore and service in 
other locations if the conditions of service involved duty or 
visitation in the Republic of Vietnam; and
    (ii) The individual was conceived on or after the date on which the 
veteran first served in the Republic of Vietnam.
    (2) Covered birth defect. Medical treatment records and medical 
opinions must show that the individual has any birth defect(s) 
identified by VA as a birth defect that is associated with service of 
women Vietnam veterans in the Republic of Vietnam during the Vietnam 
era.
    (3) Extent of current disability. VA will examine the nature and 
severity of the individual's disability due to the birth defect(s) and 
assign an evaluation of Level 0 to Level 4 by comparing the 
individual's symptoms to the criteria in Sec.  3.815. This may be based 
on medical treatment records and reports and statements from the 
individual's employer and other people about how the disability affects 
the individual's ability to work and function.

(Authority: 38 U.S.C. 5103(a)(1) and (2))

Sec.  3.165  Notice upon receipt of claim to reopen based on new and 
material evidence.

    VA will provide notice that the following information and evidence 
is necessary to reopen a previously denied claim as provided in Sec.  
3.156 in addition to the notice described in Sec. Sec.  3.159 through 
3.164.
    (a) New evidence is existing evidence not previously submitted to 
VA.
    (b) Material evidence is existing evidence that, by itself or when 
considered with previous evidence of record, relates to an 
unestablished fact necessary to substantiate the claim.
    (c) To be new and material, evidence must raise a reasonable 
possibility of substantiating the claim.

(Authority: 38 U.S.C. 5103(a)(1) and (2))

Sec.  3.166  Notice upon receipt of claim for other benefits governed 
by part 3.

    Subject to Sec.  3.159, if VA receives a claim for any benefit 
governed by part 3 of this title that is not otherwise addressed in 
Sec. Sec.  3.160 through 3.164, VA will provide notice appropriate to 
the type of benefit sought describing the evidence and information 
necessary to substantiate the claim. Such notice shall be consistent 
with the statutory and regulatory eligibility criteria for the benefit.

(Authority: 38 U.S.C. 5103(a)(1) and (2))


[[Page 65718]]




Sec.  3.167  VA's duty to assist claimants in obtaining evidence.

    (a) Definitions. For purposes of this section, the following 
definitions apply:
    (1) Competent medical evidence means evidence provided by a person 
who is qualified through education, training, or experience to offer 
medical diagnoses, statements, or opinions. Competent medical evidence 
may also mean statements conveying sound medical principles found in 
medical treatises. It would also include statements contained in 
authoritative writings such as medical and scientific articles and 
research reports or analyses.
    (2) Competent lay evidence means any evidence not requiring that 
the proponent have specialized education, training, or experience. Lay 
evidence is competent if it is provided by a person who has knowledge 
of facts or circumstances and conveys matters that can be observed and 
described by a lay person.
    (3) Event means one or more incidents associated with places, 
types, and circumstances of service giving rise to disability.
    (b) Upon receipt of a substantially complete application for 
benefits, VA will make reasonable efforts to help a claimant obtain 
evidence necessary to substantiate the claim. In addition, VA will give 
the assistance described in paragraphs (b)(1), (b)(2), and (b)(3) of 
this section to an individual attempting to reopen a finally decided 
claim. VA will not pay any fees charged by a custodian to provide 
records requested.
    (1) Obtaining records not in the custody of a Federal department or 
agency. VA will make reasonable efforts to obtain relevant records not 
in the custody of a Federal department or agency, to include records 
from State or local governments, private medical care providers, 
current or former employers, and other non-Federal governmental 
sources. Such reasonable efforts will generally consist of an initial 
request for the records and, if the records are not received, at least 
one follow-up request. A follow-up request is not required if a 
response to the initial request indicates that the records sought do 
not exist or that a follow-up request for the records would be futile. 
If VA receives information showing that subsequent requests to this or 
another custodian could result in obtaining the records sought, then 
reasonable efforts will include an initial request and, if the records 
are not received, at least one follow-up request to the new source or 
an additional request to the original source.
    (i) The claimant must cooperate fully with VA's reasonable efforts 
to obtain relevant records from non-Federal agency or department 
custodians. The claimant must provide enough information to identify 
and locate the existing records, including the person, company, agency, 
or other custodian holding the records; the approximate time frame 
covered by the records; and, in the case of medical treatment records, 
the condition for which treatment was provided.
    (ii) If necessary, the claimant must authorize the release of 
existing records in a form acceptable to the person, company, agency, 
or other custodian holding the records.

(Authority: 38 U.S.C. 5103A(b))


    (2) Obtaining records in the custody of a Federal department or 
agency. VA will make as many requests as are necessary to obtain 
relevant records from a Federal department or agency. These records 
include but are not limited to military records, including service 
medical records; medical and other records from VA medical facilities; 
records from non-VA facilities providing examination or treatment at VA 
expense; and records from other Federal agencies, such as the Social 
Security Administration. VA will end its efforts to obtain records from 
a Federal department or agency only if VA concludes that the records 
sought do not exist or that further efforts to obtain those records 
would be futile. Cases in which VA may conclude that no further efforts 
are required include those in which the Federal department or agency 
advises VA that the requested records do not exist or the custodian 
does not have them.
    (i) The claimant must cooperate fully with VA's reasonable efforts 
to obtain relevant records from Federal agency or department 
custodians. If requested by VA, the claimant must provide enough 
information to identify and locate the existing records, including the 
custodian or agency holding the records; the approximate time frame 
covered by the records; and, in the case of medical treatment records, 
the condition for which treatment was provided. In the case of records 
requested to corroborate a claimed stressful event in service, the 
claimant must provide information sufficient for the records custodian 
to conduct a search of the corroborative records.
    (ii) If necessary, the claimant must authorize the release of 
existing records in a form acceptable to the custodian or agency 
holding the records.

(Authority: 38 U.S.C. 5103A(b))


    (3) Obtaining records in compensation claims. In a claim for 
disability compensation, VA will make efforts to obtain the claimant's 
service medical records, if relevant to the claim; other relevant 
records pertaining to the claimant's active military, naval or air 
service that are held or maintained by a governmental entity; VA 
medical records or records of examination or treatment at non-VA 
facilities authorized by VA; and any other relevant records held by any 
Federal department or agency. The claimant must provide enough 
information to identify and locate the existing records including the 
custodian or agency holding the records; the approximate time frame 
covered by the records; and, in the case of medical treatment records, 
the condition for which treatment was provided.

(Authority: 38 U.S.C. 5103A(c))


    (4) Providing medical examinations or obtaining medical opinions.
    (i) In a claim for disability compensation, VA will provide a 
medical examination or obtain a medical opinion based upon a review of 
the evidence of record if VA determines it is necessary to decide the 
claim. A medical examination or medical opinion is necessary if the 
information and evidence of record does not contain sufficient 
competent medical evidence to decide the claim, but:

    (A) Contains competent lay or medical evidence of a current 
diagnosed disability or persistent or recurrent symptoms of disability;
    (B) Establishes that the veteran suffered an event, injury or 
disease in service, or has a disease or symptoms of a disease listed in 
Sec. Sec.  3.309, 3.313, 3.316, and 3.317 manifesting during an 
applicable presumptive period provided the claimant has the required 
service or triggering event to qualify for that presumption; and
    (C) Indicates that the claimed disability or symptoms may be 
associated with the established event, injury, or disease in service or 
with another service-connected disability.
    (ii) Paragraph (b)(4)(i)(C) of this section could be satisfied by 
competent evidence showing post-service treatment for a condition, or 
other possible association with military service.
    (iii) Paragraph (b)(4) of this section applies to a claim to reopen 
a finally adjudicated claim only if new and material evidence is 
presented or secured.

(Authority: 38 U.S.C. 5103A(d))


    (c) Circumstances where VA will refrain from or discontinue 
providing assistance. VA will refrain from

[[Page 65719]]

providing assistance in obtaining evidence for a claim if the 
substantially complete application for benefits indicates that there is 
no reasonable possibility that any assistance VA would provide to the 
claimant would substantiate the claim. VA will discontinue providing 
assistance in obtaining evidence for a claim if the evidence obtained 
indicates that there is no reasonable possibility that further 
assistance would substantiate the claim. Circumstances in which VA will 
refrain from or discontinue providing assistance in obtaining evidence 
include, but are not limited to:
    (1) The claimant's ineligibility for the benefit sought because of 
lack of qualifying service or other lack of legal eligibility;
    (2) Claims that are inherently incredible or clearly lack merit; 
and
    (3) An application requesting a benefit to which the claimant is 
not entitled as a matter of law.

(Authority: 38 U.S.C. 5103A(a)(2))


    (d) Duty to notify claimant of inability to obtain records.
    (1) If VA makes reasonable efforts to obtain relevant non-Federal 
records but is unable to obtain them, or after continued efforts to 
obtain Federal records concludes that it is reasonably certain they do 
not exist or further efforts to obtain them would be futile, VA will 
provide the claimant with oral or written notice of that fact. VA will 
make a record of any oral notice conveyed to the claimant. For non-
Federal records requests, VA may provide the notice at the same time it 
makes its final attempt to obtain the relevant records. In either case, 
the notice must contain the following information:
    (i) The identity of the records VA was unable to obtain;
    (ii) An explanation of the efforts VA made to obtain the records;
    (iii) A description of any further action VA will take regarding 
the claim, including, but not limited to, notice that VA will decide 
the claim based on the evidence of record unless the claimant submits 
the records VA was unable to obtain; and
    (iv) A notice that the claimant is ultimately responsible for 
providing the evidence.
    (2) If VA becomes aware of the existence of relevant records before 
deciding the claim, VA will notify the claimant of the records and 
request that the claimant provide a release for the records. If the 
claimant does not provide any necessary release of the relevant records 
that VA is unable to obtain, VA will request that the claimant obtain 
the records and provide them to VA.

(Authority: 38 U.S.C. 5103A(b)(2))


    (e) The authority recognized in subsection (g) of 38 U.S.C. 5103A 
is reserved to the sole discretion of the Secretary and will be 
implemented, when deemed appropriate by the Secretary, through the 
promulgation of regulations.

(Authority: 38 U.S.C. 5103A(g))


[FR Doc. E9-29459 Filed 12-10-09; 8:45 am]
BILLING CODE 8320-01-P