[Federal Register Volume 75, Number 169 (Wednesday, September 1, 2010)]
[Proposed Rules]
[Pages 53744-53771]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-21019]
[[Page 53743]]
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Part II
Department of Veterans Affairs
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38 CFR Part 5
Service-Connected and Other Disability Compensation; Proposed Rule
Federal Register / Vol. 75 , No. 169 / Wednesday, September 1, 2010 /
Proposed Rules
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 5
RIN 2900-AM07
Service-Connected and Other Disability Compensation
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: The Department of Veterans Affairs (VA) proposes to reorganize
and rewrite in plain language its regulations concerning service-
connected and other disability compensation. These revisions are
proposed as part of VA's reorganization of all of its compensation and
pension regulations in a logical, claimant-focused, and user-friendly
format. The intended effect of the proposed revisions is to assist
claimants, beneficiaries, and VA personnel in locating and
understanding these regulations.
DATES: Comments must be received by VA on or before November 1, 2010.
ADDRESSES: Written comments may be submitted through http://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.
Comments should indicate that they are submitted in response to ``RIN
2900-AM07--Service-Connected and Other Disability Compensation.''
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) 273-9515 (not a toll-free number) for an appointment.
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: William F. Russo, Director of
Regulations Management (02REG), Department of Veterans Affairs, 810
Vermont Avenue, NW., Washington, DC 20420, or call (202) 273-9515 (not
a toll-free number).
SUPPLEMENTARY INFORMATION: The Secretary of Veterans Affairs
established the Office of Regulation Policy and Management to provide
centralized management and coordination of VA's rulemaking process. One
of the major functions of this office is to oversee a Regulation
Rewrite Project (the Project) to improve the clarity and consistency of
existing VA regulations. The Project was created in response to a
recommendation made in the October 2001 ``VA Claims Processing Task
Force: Report to the Secretary of Veterans Affairs''. The Task Force
recommended that the compensation and pension regulations be rewritten
and reorganized in order to improve VA's claims adjudication process.
Therefore, the staff assigned to the Project began its efforts by
reviewing, reorganizing, and redrafting the content of the regulations
in 38 CFR part 3 governing the compensation and pension program of the
Veterans Benefits Administration. These regulations are among the most
difficult VA regulations for readers to understand and apply.
Once rewritten, the proposed regulations will be published in
several portions for public review and comment. This is one such
portion. It includes proposed rules regarding service-connected and
other disability compensation. After review and consideration of public
comments, final versions of these proposed regulations will ultimately
be published in a new part 5 in 38 CFR.
Outline
Overview of New Part 5 Organization
Overview of This Notice of Proposed Rulemaking
Table Comparing Proposed Part 5 Rules with Current Part 3 Rules
Content of Proposed Regulations
Service-Connected and Other Disability Compensation
5.240 Disability compensation.
5.241 Service-connected disability.
5.242 General principles of service connection.
5.243 Establishing service connection.
5.244 Presumption of sound condition.
5.245 Service connection based on aggravation of preservice injury
or disease.
5.246 Secondary service connection--disability that is proximately
caused by service-connected disability.
5.247 Secondary service connection--nonservice-connected disability
aggravated by service-connected disability.
5.248 Service connection for cardiovascular disease secondary to
service-connected lower extremity amputation.
5.249 Special service connection rules for combat-related injury or
disease.
5.250 Service connection for posttraumatic stress disorder.
5.251 Current disabilities for which VA cannot grant service
connection.
Rating Service-Connected Disabilities
5.280 General rating principles.
5.281 Multiple 0-percent service-connected disabilities.
5.282 Special consideration for paired organs and extremities.
5.283 Total and permanent total ratings and unemployability.
5.284 Total disability ratings for disability compensation
purposes.
5.285 Continuance of total disability ratings.
Additional Disability Compensation Based on a Dependent Parent
5.300 Establishing dependency of a parent.
5.302 General income rules--parent's dependency.
5.303 Deductions from income--parent's dependency.
5.304 Exclusions from income--parent's dependency.
Disability Compensation Effective Dates
5.311 Effective dates--award of disability compensation.
5.312 Effective dates--increased disability compensation.
5.313 Effective dates--discontinuance of a total disability rating
based on individual unemployability.
5.314 Effective dates--discontinuance of additional disability
compensation based on parental dependency.
5.315 Effective dates--additional disability compensation based on
decrease in the net worth of a dependent parent.
Endnote Regarding Amendatory Language
Paperwork Reduction Act
Regulatory Flexibility Act
Executive Order 12866
Unfunded Mandates
Catalog of Federal Domestic Assistance Numbers and Titles
List of Subjects in 38 CFR Part 5
Overview of New Part 5 Organization
We plan to organize the new part 5 regulations so that most
provisions governing a specific benefit are located in the same
subpart, with general provisions pertaining to all compensation and
pension benefits also grouped together. This organization will allow
claimants, beneficiaries, and their representatives, as well as VA
adjudicators, to find information relating to a specific benefit more
quickly than the organization provided in current part 3.
The first major subdivision would be ``Subpart A--General
Provisions.'' It would include information regarding the scope of the
regulations in new part
[[Page 53745]]
5, delegations of authority, general definitions, and general policy
provisions for this part. This subpart was published as proposed on
March 31, 2006. See 71 FR 16464.
``Subpart B--Service Requirements for Veterans'' would include
information regarding a veteran's military service, including the
minimum service requirement, types of service, periods of war, and
service evidence requirements. This subpart was published as proposed
on January 30, 2004. See 69 FR 4820.
``Subpart C--Adjudicative Process, General'' would inform readers
about claims and benefit application filing procedures, VA's duties,
rights and responsibilities of claimants and beneficiaries, general
evidence requirements, and general effective dates for new awards, as
well as revision of decisions and protection of VA ratings. This
subpart was published in three separate notices of proposed rulemaking
(NPRMs) due to its size. The first, concerning the duties of VA and the
rights and responsibilities of claimants and beneficiaries, was
published on May 10, 2005. See 70 FR 24680. The second, concerning
general evidence requirements, effective dates, revision of decisions,
and protection of existing ratings, was published as proposed on May
22, 2007. See 72 FR 28770. The third, concerning VA benefit claims, was
published on April 14, 2008. See 73 FR 2136.
``Subpart D--Dependents and Survivors'' would inform readers how VA
determines whether an individual is a dependent or a survivor for
purposes of determining eligibility for VA benefits. It would also
provide the evidence requirements for these determinations. This
subpart was published as proposed on September 20, 2006. See 71 FR
55052.
``Subpart E--Claims for Service Connection and Disability
Compensation'' would define service-connected disability compensation,
including direct and secondary service connection, and disability
compensation paid pursuant to section 1151, title 38, United States
Code as if the disability were service connected. This subpart would
inform readers how VA determines entitlement to service connection and
entitlement to disability compensation. The subpart would also contain
those provisions governing presumptions related to service connection,
rating principles, and effective dates, as well as several special
ratings. This subpart will be published in three NPRMs due to its size.
The first, concerning presumptions related to service connection, was
published as proposed on July 27, 2004. See 69 FR 44614. The second,
concerning special ratings, was published on October 17, 2008. See 73
FR 62004. This NPRM, which includes regulations relating to service-
connected and other disability compensation, is the third of the NPRMs
making up Subpart E.
``Subpart F--Nonservice-Connected Disability Pensions and Death
Pensions'' would include information regarding the three types of
nonservice-connected pension: Old-Law Pension, Section 306 Pension, and
Improved Pension. This subpart would also include those provisions that
state how to establish eligibility and entitlement to Improved Pension,
and the effective dates governing each type of pension. This subpart
was published as two separate NPRMs due to its size. The portion
concerning Old-Law Pension, Section 306 Pension, and elections of
Improved Pension was published as proposed on December 27, 2004. See 69
FR 77578. The portion concerning eligibility and entitlement
requirements for Improved Pension was published as proposed on
September 26, 2007. See 72 FR 54776.
``Subpart G--Dependency and Indemnity Compensation, Accrued
Benefits, and Special Rules Applicable Upon Death of a Beneficiary''
would contain regulations governing claims for dependency and indemnity
compensation (DIC); accrued benefits; and various special rules that
apply to the disposition of VA benefits, or proceeds of VA benefits,
when a beneficiary dies. This subpart was published as two NPRMs due to
its size. The portion concerning accrued benefits, special rules
applicable upon the death of a beneficiary, and several effective date
rules, was published as proposed on October 1, 2004. See 69 FR 59072.
The portion concerning DIC benefits and general provisions relating to
proof of death was published on October 21, 2005. See 70 FR 61326.
``Subpart H--Special and Ancillary Benefits for Veterans,
Dependents, and Survivors'' would pertain to special and ancillary
benefits available, including benefits for children with various birth
defects. This subpart was published as proposed on March 9, 2007. See
72 FR 10860.
``Subpart I--Benefits for Certain Filipino Veterans and Survivors''
would pertain to the various benefits available to Filipino veterans
and their survivors. This subpart was published as proposed on June 30,
2006. See 71 FR 37790.
``Subpart J--Burial Benefits'' would pertain to burial allowances.
``Subpart K--Matters Affecting the Receipt of Benefits'' would
contain provisions regarding bars to benefits, forfeiture of benefits,
and renouncement of benefits. This subpart was published as proposed on
May 31, 2006. See 71 FR 31056.
``Subpart L--Payments and Adjustments to Payments'' would include
general rate-setting rules, several adjustment and resumption
regulations, and election-of-benefit rules. Because of its size,
proposed regulations in subpart L were published in two separate NPRMs.
The first, concerning payments to beneficiaries who are eligible for
more than one benefit, was published as proposed on October 2, 2007.
See 72 FR 56136. The second, concerning payments and adjustments to
payments, was published on October 31, 2008. See 73 FR 65212.
The final subpart, ``Subpart M--Apportionments to Dependents and
Payments to Fiduciaries and Incarcerated Beneficiaries,'' would include
regulations governing apportionments, benefits for incarcerated
beneficiaries, and guardianship.
Some of the regulations in this NPRM cross-reference other
compensation and pension regulations. If those regulations have been
published in this or earlier NPRMs for the Project, we cite the
proposed part 5 section. We also include, in the relevant portion of
the Supplementary Information, the Federal Register document citation
(including the Regulation Identifier Number and Subject Heading) where
a proposed part 5 section published in an earlier NPRM may be found.
However, where a regulation proposed in this NPRM would cross-reference
a proposed part 5 regulation that has not yet been published, we cite
to the current part 3 regulation that deals with the same subject
matter. The current part 3 section we cite may differ from its eventual
part 5 counterpart in some respects, but this method will assist
readers in understanding these proposed regulations where no part 5
counterpart has yet been published.
Because of its large size, proposed part 5 will be published in a
number of NPRMs, such as this one. VA will not adopt any portion of
part 5 as final until all of the NPRMs have been published for public
comment.
In connection with this rulemaking, VA will accept comments
relating to a prior rulemaking issued as a part of the Project, if the
matter being commented on relates to both NPRMs.
Overview of This Notice of Proposed Rulemaking
This NPRM pertains to service-connected and other disability
compensation. These regulations would be contained in proposed Subpart
E of
[[Page 53746]]
new 38 CFR part 5. Although these regulations have been substantially
restructured and rewritten for greater clarity and ease of use, most of
the basic concepts contained in these proposed regulations are the same
as in their existing counterparts in 38 CFR part 3. However, a few
regulations with substantive differences are proposed, as are some
regulations that do not have counterparts in 38 CFR part 3.
Table Comparing Proposed Part 5 Rules With Current Part 3 Rules
The following table shows the relationship between the proposed
regulations contained in this NPRM and the current regulations in part
3:
------------------------------------------------------------------------
Based in whole or in part on
Proposed part 5 section or paragraph 38 CFR part 3 section or
paragraph (or ``New'')
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5.240(a).................................. 3.4(a) and (b)(1).
5.240(b).................................. 3.4(b)(2).
5.241 introduction........................ New.
5.241(a) and (b).......................... 3.1(k), 3.303(a) first and
second sentences.
5.241(c).................................. New.
5.242(a).................................. 3.303(a).
5.242(b).................................. 3.304(b)(3).
5.243(a).................................. New.
5.243(b).................................. 3.303(a) and (d).
5.243(c) and (d).......................... 3.303(b).
5.244(a).................................. 3.304(b).
5.244(b).................................. New.
5.244(c)(1)............................... 3.304(b)(1), first sentence.
5.244(c)(2)............................... New.
5.244(d)(1)............................... 3.304(b).
5.244(d)(2)............................... New.
5.245(a)(1)............................... 3.306(a).
5.245(a)(2)............................... New.
5.245(b)(1)............................... New.
5.245(b)(2)............................... New.
5.245(b)(3)............................... 3.306(b)(1).
5.245(b)(4)............................... 3.306(b)(2).
5.245(c).................................. 3.306(b).
5.246..................................... 3.310(a).
5.247..................................... 3.310(b).
5.248..................................... 3.310(c).
5.249(a)(1)............................... 3.102, 3.304(d).
5.249(a)(2)............................... New.
5.249(b).................................. New.
5.250(a).................................. 3.304(f).
5.250(b).................................. New.
5.250(c).................................. 3.304(f)(1).
5.250(d).................................. 3.304(f)(2) and (4).
5.250(e).................................. 3.304(f)(3).
5.250(f).................................. 3.304(f)(5).
5.251(a).................................. 3.303(c).
5.251(b)(1) through (3)................... New.
5.251(c).................................. New.
5.251(d).................................. New.
5.251(e).................................. 3.380.
5.280..................................... 3.321(a), (b)(1), (3), and
(c).
5.281..................................... 3.324.
5.282(a).................................. 3.383(a).
5.282(b).................................. 3.383(a)(1) through (5).
5.282(c)(1) and (2)....................... 3.383(b)(1).
5.282(c)(3)............................... 3.383(c).
5.282(c)(4)............................... 3.383(d).
5.283..................................... 3.340.
5.284..................................... 3.341.
5.285..................................... 3.343(a) and (c).
5.300(a)(1)............................... 3.250(a)(1) and (3).
5.300(a)(2)............................... New.
5.300(b).................................. 3.250(a)(2).
5.300(b)(1)............................... 3.250(b).
5.300(b)(1)(i)............................ 3.250(b)(1).
5.300(b)(1)(ii)........................... 3.250(c).
5.300(b)(2)(i)............................ 3.250(a)(2).
5.300(b)(2)(ii)........................... 3.250(b)(2).
5.300(c).................................. 3.250(b).
5.300(d).................................. 3.660(a)(1).
5.300(e).................................. 3.250(d).
5.302(a).................................. 3.262(a).
5.302(b).................................. 3.262(b), 3.262(e)(3).
5.302(c).................................. 3.261(a)(3), 3.250(b)(2).
5.302(d).................................. 3.262(k)(1) and (2).
5.302(e).................................. 3.262(k)(2) and (3).
5.303(a).................................. 3.262(a)(2).
5.303(b).................................. 3.261(a)(24), 3.262(i)(1)
and (j)(4).
5.303(c).................................. 3.262(a)(1).
5.304 introduction........................ New.
5.304(a).................................. 3.261(a)(7).
5.304(b)(1)............................... 3.262(h)(1).
5.304(b)(2)............................... 3.262(h)(2).
5.304(b)(3)............................... 3.262(h)(3).
5.304(b)(4)............................... 3.262(h)(4).
5.304(c).................................. 3.261(a)(12).
5.304(d), except (d)(6)................... 3.261(a)(20).
5.304(d)(6)............................... New.
5.304(e).................................. 3.261(a)(20).
5.304(f).................................. 3.261(a)(13).
5.304(g).................................. 3.261(a)(28), 3.262(t), and
3.262(t)(2).
5.304(h).................................. 3.262(k)(4).
5.304(i).................................. 3.261(a)(31).
5.304(j).................................. 3.262(a)(2), last sentence.
5.304(k).................................. 3.261(a)(22).
5.304(l).................................. 3.261, 3.262.
5.311..................................... 3.400(b)(2).
5.312(a).................................. New.
5.312(b).................................. 3.400(o)(2).
5.313(a).................................. New.
5.313(b).................................. 3.501(e)(2).
5.313(c).................................. 3.501(f).
5.314(a).................................. New.
5.314(b).................................. 3.500(h), 3.660(a)(2).
5.314(c).................................. 3.500(h), 3.500(n)(2),
3.660(a)(2).
5.314(d).................................. 3.500 (g)(2), 3.500(h),
3.660(a)(2).
5.315..................................... 3.660(d).
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Readers who use this table to compare the proposed provisions with
the existing regulatory provisions, and who observe a substantive
difference between them, should consult the text that appears later in
this document for an explanation of significant changes in each
regulation. Not every paragraph of every current part 3 section
regarding the subject matter of this rulemaking is accounted for in the
table. In some instances, other portions of the part 3 sections that
are addressed in these proposed regulations will appear in subparts of
part 5 that are being published separately for public comment. For
example, a reader might find a reference to paragraph (a) of a part 3
section in the table, but no reference to paragraph (b) of that section
because paragraph (b) will be addressed in a separate NPRM. The table
also does not include provisions from part 3 regulations that will not
be repeated in part 5. Such provisions are discussed specifically under
the appropriate part 5 heading in this preamble. Readers are invited to
comment on the proposed part 5 provisions and also on our proposals to
omit those part 3 provisions from part 5.
Content of Proposed Regulations
Service-Connected and Other Disability Compensation
Section 5.240 Disability Compensation
The first proposed regulation in this NPRM, based on current Sec.
3.4(a) and (b), would provide a definition of ``disability
compensation'' and a rule concerning additional disability compensation
payable to veterans who have dependents. The material in current Sec.
3.4(a) about the death compensation program will have no counterpart in
part 5. VA currently pays death compensation to fewer than 300
beneficiaries. Except for one small group of beneficiaries covered
under Sec. 3.4(c)(2), death compensation is payable only if the
veteran died prior to January 1, 1957. VA has not received a claim for
death compensation in over 10 years, and we do not expect to receive
such claims any more. We intend to revise proposed Sec. 5.0, 71 FR
16464 (Mar. 31, 2006), the scope provision for part 5, to provide
direction that any new claims for death compensation or actions
concerning death compensation benefits be adjudicated under part 3.
The proposed definition of ``disability compensation'' in Sec.
5.240(a) would be simpler than the rules in current Sec. 3.4(a) and
(b)(1), because it does not unnecessarily repeat information found
elsewhere. For example, current Sec. 3.4(a) states that ``[i]f the
veteran was discharged or released from service, the discharge or
release must have been under conditions other than dishonorable.''
Similarly, current Sec. 3.1(d) defines ``[v]eteran'' to mean ``a
person who served in the active military, naval, or air service and who
was discharged or released under conditions other than dishonorable.''
[[Page 53747]]
The proposed part 5 definition of ``veteran'' in Sec. 5.1 includes the
same information as current Sec. 3.1(d). See 71 FR at 16474.
Therefore, we propose not to repeat the information in Sec. 5.240.
Comparing current Sec. Sec. 3.4(b)(1) and 3.1(k) reveals another
example of unnecessary repetition. Section 3.4(b)(1) states the rule
for basic entitlement to disability compensation in terms of a service-
connected disability, while current Sec. 3.1(k) defines ``service-
connected'' with respect to disability as meaning that ``such
disability was incurred or aggravated * * * in line of duty in the
active military, naval, or air service.'' Section 5.241 in this NPRM
would define ``service-connected disability'' based on current Sec.
3.1(k). We propose to state the definition of service-connected
disability once, in proposed Sec. 5.241 below.
In addition, proposed Sec. 5.240(a) would define disability
compensation to include compensation for a disability that is treated
``as if'' it were service connected under 38 U.S.C. 1151, ``Benefits
for persons disabled by treatment or vocational rehabilitation''. Thus,
``disability compensation'' in part 5 would be distinguishable from
``service-connected disability compensation''. In most cases, the
procedures governing the payment of disability compensation are the
same, regardless of whether compensation is authorized by 38 U.S.C.
1110, 1131, or 1151. However, where it is important to distinguish
between them, our part 5 regulations will do so either by specifically
discussing section 1151 or by placing the descriptor ``service-
connected'' before the words ``disability compensation.'' See, e.g.,
proposed Sec. 5.20(b), 69 FR 4820 (Jan. 30, 2004). A more complete
explanation of what constitutes a ``service-connected disability''
would be set out in the next proposed regulation in this NPRM, Sec.
5.241. Therefore, proposed Sec. 5.240(a) would cross-reference that
rule.
Current Sec. 3.4(b)(2) provides that additional compensation may
be paid to a veteran with a dependent if the veteran has ``disability
evaluated as 30 per centum or more disabling.'' VA has consistently
interpreted the authorizing statute, 38 U.S.C. 1115, as authorizing
additional disability compensation for a dependent whether the veteran
has at least a 30-percent rating for a single disability or for
combined disabilities. Proposed Sec. 5.240(b) would make this
interpretation explicit by stating that ``[a]dditional disability
compensation is payable to a veteran who has a spouse, child, or
dependent parent if the veteran is entitled to disability compensation
based on a single or a combined disability rating of 30 percent or
more.''
In Sec. 5.240(b) we would also clarify the relationship between
the additional disability compensation that section 1115 authorizes and
the rates of disability compensation under 38 U.S.C. 1114. Section 1114
provides the rates and amounts of service-connected disability
compensation. The additional disability compensation that section 1115
authorizes is above and beyond any rate that section 1114 authorizes.
The second sentence of Sec. 5.240(b) would state that ``[t]he
additional disability compensation authorized by 38 U.S.C. 1115 is
payable in addition to monthly disability compensation payable under 38
U.S.C. 1114.''
Section 5.241 Service-Connected Disability
Proposed Sec. 5.241, which would explain when a disability is
considered to be ``service connected'', would be based on current Sec.
3.1(k) and the first two sentences of current Sec. 3.303(a). The
portion of the definition in current Sec. 3.1(k) that relates to
service-connected death was addressed in proposed Subpart G of part 5,
in a separate NPRM. See 70 FR at 61342.
In the introductory sentence, we would clarify that a service-
connected disability must be a ``current disability''. See Disabled Am.
Veterans v. Sec'y of Veterans Affairs, 419 F.3d 1317, 1318 (Fed. Cir.
2005) (DAV) (``[g]enerally, a veteran who claims entitlement to
disability compensation benefits must show * * * a current
disability''); see also Hogan v. Peake, 544 F.3d 1295, 1297 (Fed. Cir.
2008) (``[t]o establish a right to benefits, a veteran must show that a
current disability is `service connected' '' (citing DAV)). Although
neither Sec. 3.1(k) nor Sec. 3.303(a) refers to a ``current
disability'', the U.S. Court of Appeals for the Federal Circuit
(Federal Circuit) has held that VA's interpretation of 38 U.S.C. 1110
and 1131, which govern entitlement to service connection, as requiring
a current disability to establish service connection is reasonable. See
Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998) (holding that VA's
interpretation of 38 U.S.C. 1110 as requiring a current disability is
reasonable because ``[m]any of the statutes governing the provision of
benefits for veterans only allow such benefits be given for disability
existing on or after the date of application'') (citing 38 U.S.C.
5110(a), 5111(a), 1710, and 1712); Degmetich v. Brown, 104 F.3d 1328,
1332 (Fed. Cir. 1997) (same as to VA's interpretation of 38 U.S.C.
1131). Thus, the inclusion of a ``current disability'' requirement
would codify these court holdings but would not produce a different
result for claims adjudicated under part 5.
Proposed paragraph (a) would essentially repeat the content of
current Sec. 3.1(k) and the first two sentences of current Sec.
3.303(a). We would clarify that a service-connected disability must
have been ``caused by an injury or disease incurred, or presumed to
have been incurred, in the line of duty during active military
service.''
Proposed paragraph (b) would incorporate the principle of
aggravation, which is also included in Sec. 3.1(k). We would state the
principle in a separate paragraph in order to clearly indicate that it
is separate from evidence of incurrence, which would be governed by
Sec. 5.241(a).
In proposed paragraph (c), we would include in the definition of
``service-connected disability'' a disability that is secondary to a
service-connected disability. This should help convey that secondary
service connection is a type of service connection and that regulatory
references to a ``service-connected disability'' include a secondarily
service-connected disability. This principle is not contained in Sec.
3.1(k) specifically but is generally established by current Sec.
3.310(a). Therefore, this would not be a substantive change from
current practice.
Section 5.242 General Principles of Service Connection
Proposed Sec. 5.242 would be the part 5 counterpart to two general
principles VA applies in adjudicating claims for service connection.
The first, based on 38 U.S.C. 1154(a), would pertain to VA's
consideration in service connection claims of the places, types, and
circumstances of the veteran's service. The second, based on 10 U.S.C.
1219, would pertain to VA's consideration of certain statements a
veteran might have signed in service.
The third sentence of current Sec. 3.303(a) states that ``[e]ach
disabling condition shown by a veteran's service records, or for which
he seeks a service connection must be considered on the basis of the
places, types and circumstances of his service as shown by service
records, the official history of each organization in which he served,
his medical records and all pertinent medical and lay evidence.''
Paragraph (a) of proposed Sec. 5.242 would be derived from this
sentence, which is derived almost verbatim from 38 U.S.C. 1154(a).
Section 1154(a) requires VA to give ``due consideration * * * to the
places, types, and circumstances of such veteran's service as shown by
such
[[Page 53748]]
veteran's service record, the official history of each organization in
which such veteran served, such veteran's medical records, and all
pertinent medical and lay evidence''. We do not interpret this statute
as adding to the evidence-gathering duties set forth in 38 U.S.C.
5103A, which requires VA to make ``reasonable efforts to obtain
relevant records * * * that the claimant adequately identifies''. 38
U.S.C. 5103A(b)(1).
The requirement that a claimant identify records with potentially
relevant information is repeated in section 5103A(c)(3) and is
consistent with the claimant's duty to actively participate in the
claims process. It would be far too burdensome to require VA to seek
out, obtain, and review every official record regarding the unit(s) and
circumstance(s) of every veteran's service, and, more importantly,
doing so in the vast majority of cases would be unproductive. Hence,
proposed Sec. 5.242(a) would require VA to duly consider only
``evidence of record'' concerning matters such as the places, types,
and circumstances of the veteran's service and the history of
organizations in which the veteran served, which would be consistent
with current Sec. 3.303(a) requiring VA to base its determinations as
to service connection on the entire ``evidence of record''.
The regulatory and statutory history of the third sentence of Sec.
3.303(a) began in 1941, Public Law 77-361, 55 Stat. 847. The statute
required ``that in each case where a veteran is seeking service
connection for any disability[,] due consideration shall be given to
the places, types, and circumstances of his service as shown by his
service record, the official history of each organization in which he
served, his medical records, and all pertinent medical and lay
evidence.'' VA implemented this language in 38 CFR 2.1077(b) (Cum.
Supp. 1938-1943), using substantially the same language. 7 FR 1981
(Mar. 13, 1942). VA regulations contained this same language until
1961, when VA revised it to read as it does in current Sec. 3.303(a).
The regulatory history does not reveal why VA revised this language.
We propose not to repeat in Sec. 5.242(a) the phrase ``[e]ach
disabling condition shown by a veteran's service records'' for two
reasons. First, the phrase creates a distinction between disabilities
shown in a veteran's service record and those not shown. This
distinction is irrelevant because VA considers all service connection
claims ``on the basis of the places, types and circumstances''
regardless of whether a disability is shown in the service record or in
the evidence of record subsequent to service. Second, the phrase could
be misconstrued to mean that, absent any claim by a veteran, VA has a
duty to review service records to determine entitlement to service
connection for ``[e]ach disabling condition'' which might possibly
exist. Congress did not intend to impose such a duty on VA when it
enacted Public Law 77-361. Moreover, such a duty would impose an
unreasonable burden on VA's limited resources by requiring VA to comb
through veterans' service records for potential claims.
Proposed Sec. 5.242(b) would restate current Sec. 3.304(b)(3),
which provides that ``[s]igned statements of veterans relating to the
origin, or incurrence of any disease or injury made in service if
against his or her own interest is of no force and effect if other data
do not establish the fact'' and that ``[o]ther evidence will be
considered as though such statement were not of record.'' This rule is
derived from 10 U.S.C. 1219, which states that ``[a] member of an armed
force may not be required to sign a statement relating to the origin,
incurrence, or aggravation of a disease or injury that he has'' and
that ``[a]ny such statement against his interests, signed by a member,
is invalid.''
The language of current Sec. 3.304(b)(3) does not limit its
application to cases involving the presumption of sound condition.
Despite the fact that it falls under the ``Presumption of soundness''
subheading, we believe VA intended this provision to mirror section
1219 and be applied broadly. Section 1219 precludes a service
department from using a statement of the sort the statute describes for
any purpose. The statute does not describe a context in which such a
statement by the servicemember would be invalid. We propose, by
locating the rule in the section on general principles of service
connection, to make clear that VA also applies the rule broadly. The
remaining provisions of current Sec. 3.304(b) are covered under
proposed Sec. 5.244, ``Presumption of sound condition.''
Proposed Sec. 5.242(b) would resolve an ambiguity in the current
rule and state the full scope of the statute while limiting its
application to a statement that was against a veteran's interest at the
time he or she signed the statement. The current rule pertains only to
a signed statement about ``origin'' or ``incurrence'' of an injury or
disease. The proposed rule would also pertain to a signed statement
about ``aggravation of an injury or disease,'' which would be
consistent with the statute.
The current rule is unclear whether a veteran's statement ``against
his or her own interest'' means a statement that was against the
veteran's interest at the time the veteran signed it, or is against the
veteran's current interest. Specifying that VA will exclude a statement
against the signer's interest at the time signed ensures that the rule
protects veterans against VA decisions based on possibly unreliable
evidence.
Current Sec. 3.304(b)(3) bars VA consideration of a statement
signed in service if against a veteran's interest, which therefore
permits VA to consider the statement if in the veteran's interest. The
proposed rule would likewise permit VA to consider a statement the
veteran signed while in service if the statement was made in the
veteran's interest. The current rule bars VA consideration of a signed
statement against the veteran's interest to prove a fact ``if other
data do not establish the fact.'' This logically permits VA to consider
a statement made against a veteran's interest if other data establish
the fact. The proposed rule would remove this conditional permission
for VA to consider a signed statement made against the veteran's
interest, which would make the rule simpler and easier to administer.
VA could still consider the other data (that is, evidence) that
establish the fact, rather than the statement made against the
veteran's interest.
Section 5.243 Establishing Service Connection
Proposed Sec. 5.243 would state the general requirements for
establishing service connection. It would be based on concepts in
statutes, such as 38 U.S.C. 101(16), 1110, and 1131, and current Sec.
3.303, as interpreted and applied by the U.S. Court of Appeals for
Veterans Claims (CAVC) and the Federal Circuit. It would not state the
requirements for establishing secondary service connection, which are
addressed in proposed Sec. Sec. 5.246 and 5.247.
Proposed Sec. 5.243(a) would identify the three basic requirements
for establishing service connection of a disability: Current
disability, incurrence or aggravation of an injury or disease in
service, and a causal link between the two. These principles, long
embedded in veterans' disability law, have been formally in use as a
specific three-part test since 1995 when the CAVC articulated them in
its decision in Caluza v. Brown, 7 Vet. App. 498, 505 (1995). See
Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (affirming
that the CAVC ``has correctly noted that in order to establish service
connection or service-connected
[[Page 53749]]
aggravation for a present disability the veteran must show: (1) The
existence of a present disability; (2) in-service incurrence or
aggravation of a disease or injury; and (3) a causal relationship
between the present disability and the disease or injury incurred or
aggravated during service'' (citing Caluza)). Stating these principles,
which reflect current law, would provide clear guidance as to the
requirements for establishing service connection.
Proposed Sec. 5.243(a) would not in any way restore the well-
grounded-claim requirement eliminated by section 4 of the Veterans
Claims Assistance Act of 2000, Public Law 106-475, 114 Stat. 2098. That
requirement, based on 38 U.S.C. 5107 as it existed prior to passage of
Public Law 106-475, set a well-grounded-claim threshold that had to be
met before VA was obligated to provide assistance to VA claimants in
developing evidence to support their claims. See generally, Gilbert v.
Derwinski, 1 Vet. App. 49, 55 (1991). The three Caluza requirements are
foundational principles that stand apart from the now-eliminated well-
grounded-claim requirement. The courts still recognize the three-part
test as a means of establishing service connection. See Shedden, 381
F.3d at 1166-67 (noting that there are three elements that must be
satisfied in order for an appellant to establish service connection: A
present disability; in-service incurrence or aggravation of a disease
or injury; and a causal relationship between the two). The proposed
regulation would simply incorporate current law and practice in a
straightforward manner by using currently accepted and understood
terminology.
Proposed paragraph (a) would include two notes. Note 1 would make
clear that service records alone may be sufficient to meet all of the
requirements listed in Sec. 5.243(a) when those records clearly show
that an injury or disease incurred or aggravated in service produced
disability that is permanent by its very nature. For example, VA would
never require a veteran who had suffered an amputation of a limb during
service to produce current evidence that the amputation currently
exists or that it is causally related to the in-service amputation.
Note 2 would make clear that VA recognizes that certain chronic
diseases and chronic residuals of injury can have temporary remissions.
It would provide that VA will not deny service connection for lack of a
current disability solely because a chronic disease, or a chronic
residual of an injury, enters temporary remission. The note would give
examples of the types of chronic diseases and chronic residuals of
injury subject to temporary remission.
Proposed Sec. 5.243(b) would be based on the second sentence of
current Sec. 3.303(a) and on part of current Sec. 3.303(d). The
second sentence of Sec. 3.303(a) provides that a veteran can establish
that an injury or disease resulting in disability was incurred or
aggravated in active military service ``by affirmatively showing
inception or aggravation during service or through the application of
statutory presumptions.'' Section 5.243(b) would restate the substance
of the second sentence of Sec. 3.303(a) as it relates to the second
element of proof of service connection listed in proposed Sec.
5.243(a). We would use the term ``evidence'' rather than
``affirmatively showing,'' because a fact can only be affirmatively
shown with evidence.
Current Sec. 3.303(d) states that ``[s]ervice connection may be
granted for any disease diagnosed after discharge, when all the
evidence, including that pertinent to service, establishes that the
disease was incurred in service.'' We have rewritten this in proposed
Sec. 5.243(b) to state that ``[p]roof of incurrence of a disease
during active military service does not require diagnosis during
service if the evidence otherwise establishes that the disease was
incurred in service.'' The rewritten language maintains the current
regulation's caution to VA employees that an initial diagnosis after
discharge from service does not preclude service connection. This would
not be a substantive change.
The phrase ``all the evidence, including that pertinent to
service'' in current Sec. 3.303(d) is redundant of the existing
language in Sec. 3.303(a), which provides that ``[d]eterminations as
to service connection will be based on review of the entire evidence of
record'' (emphasis added). It is a statutory requirement and
fundamental to VA adjudications (except claims of clear and
unmistakable error) that VA considers ``all information and lay and
medical evidence of record in a case''. 38 U.S.C. 5107(b). Proposed
Sec. 5.242(a) explicitly applies this principle to service connection
claims. In Cosman v. Principi, 3 Vet. App. 503, 506 (1992), the CAVC
concluded that the ``all the evidence'' language in Sec. 3.303(d) does
not mean that only positive evidence must be of record to support a
finding that a disease was incurred in service when there is a post-
service diagnosis, but rather means only that ``all the evidence be
considered and that the equipoise rule of 38 U.S.C. Sec. 5107(b)
applies to questions of service connection under [Sec. ] 3.303(d).''
Id. Because the phrase ``all the evidence, including that pertinent to
service'' in current Sec. 3.303(d) provides no unique rule, we propose
not to repeat it in Sec. 5.243(b).
Proposed Sec. 5.243(c)(1) would restate the first sentence of
current Sec. 3.303(b). This sentence states that VA will grant service
connection for a current disability if competent evidence establishes
that the veteran had a chronic disease in service, or within an
applicable presumptive period, and that the current disability is the
result of the same chronic disease, unless the veteran's current
disability is clearly due to an intercurrent cause. VA's long-standing
practice is to apply the principles of chronicity and continuity to
residuals of injury. This practice provides a fair and efficient means
to determine service connection in certain cases, and it is logical to
apply these principles to injuries as well as to diseases. Therefore,
proposed Sec. 5.243(c)(1) would also apply to an injury incurred or
aggravated in service where the current disability is due to ``the
chronic residuals of the same injury.''
The third and second sentences of current Sec. 3.303(b) would be
restated as a Note to Sec. 5.243(c)(2) with minor, nonsubstantive
changes.
Proposed Sec. 5.243(d), based on portions of current Sec.
3.303(b), would provide rules for establishing service connection based
on the continuity of signs or symptoms. That is, if the chronicity
provisions do not apply, VA will grant service connection if there is
competent evidence of signs or symptoms of an injury or disease during
service or the presumptive period, of continuing signs or symptoms, and
of a relationship between the signs or symptoms demonstrated over the
years and the veteran's current disability. See Savage v. Gober, 10
Vet. App. 488, 498 (1997).
Current part 3 refers only to ``symptoms''. We would add ``signs''
because the contemporary view of the medical profession distinguishes
between signs and symptoms. A sign is ``any objective evidence of a
disease, i.e., such evidence as is perceptible to the examining
physician, as opposed to the subjective sensations (symptoms) of the
patient.'' Dorland's Illustrated Med. Dictionary 1733 (31st ed. 2007).
A symptom is ``any subjective evidence of disease or of a patient's
condition, i.e., such evidence as perceived by the patient.'' Id. at
1843. Subjective and objective evidence are equally relevant to
establishing continuity of
[[Page 53750]]
symptomatology, and the inclusion of more specific terminology does not
represent a departure from current VA practice.
Section 5.244 Presumption of Sound Condition
Proposed Sec. 5.244 would assemble in one regulation the statutory
and regulatory principles concerning the presumption of sound condition
at entry into military service. For purposes of basic entitlement to
wartime disability compensation, 38 U.S.C. 1111, ``Presumption of sound
condition'', states that ``every veteran [who served during a period of
war] shall be taken to have been in sound condition when examined,
accepted, and enrolled for service, except as to defects, infirmities,
or disorders noted at the time of the examination, acceptance, and
enrollment, or where clear and unmistakable evidence demonstrates that
the injury or disease existed before acceptance and enrollment and was
not aggravated by such service.'' Section 1137 of title 38, U.S.C.,
``Wartime presumptions for certain veterans'', extends this presumption
to all veterans who served after December 31, 1946, including veterans
who served during peacetime.
In part 5, we would not repeat current Sec. 3.305, which
implements the presumption of sound condition for veterans of entirely
peacetime service before World War II. See 38 U.S.C. 1132,
``Presumption of sound condition''. The presumption under section 1132
applies only to a very small and decreasing population of veterans. If
a veteran of pre-World War II peacetime service initiates a claim for
service connection after part 5 goes into effect, we would apply
section 1132 without a specific implementing regulation. All generally
applicable rules in part 5 for developing and evaluating evidence and
rebutting presumptions would apply to claims from pre-World War II
peacetime veterans. Neither section 1132 nor 38 CFR 3.305 imposes an
extraordinary burden on VA to rebut the presumption (compared to the
statute and the current regulation applying the presumption of sound
condition to veterans who served during or after World War II). See 38
U.S.C. 1111; 38 CFR 3.304(b). A claimant would have the same assistance
in developing a claim and the same protection against rebuttal of the
presumption that he or she would have if we included a part 5
counterpart to Sec. 3.305.
Proposed paragraph (a) would define the presumption of sound
condition generally. Current Sec. 3.304(b) states that ``[t]he veteran
will be considered to have been in sound condition when examined,
accepted and enrolled for service''. We would describe the time as of
which VA presumes a veteran was sound with the phrase ``upon entry into
active military service'', rather than with the phrase ``when examined,
accepted and enrolled for service''. This proposed phrase would be
plain language with the same meaning as ``when examined, accepted and
enrolled for service.'' In addition to its simplicity, the proposed
phrase should prevent readers from mischaracterizing the examination as
at the time of entry. Examinations for entry could have been some time
prior to entry (as with entry through a deferred enlistment program),
rather than contemporaneous with entry.
Proposed paragraph (a) would state the limitations on the
presumption more simply, and more consistently with the overall scheme
of service connection, compared to the statute and current regulation.
Where 38 U.S.C. 1111 provides that a veteran is presumed to have been
in sound condition ``except as to defects, infirmities, or disorders
noted at the time of the examination, acceptance, and enrollment'', see
also current Sec. 3.304(b), we would state that the veteran is
presumed to have been sound ``except [for injury or disease] as noted
in the report of a medical examination conducted for entry into active
military service.'' Precluding a presumption of sound condition for
injury or disease noted in the entry examination report is consistent
with 38 U.S.C. 1110 and 1131, which authorize VA to pay disability
compensation for ``disability resulting from personal injury suffered
or disease contracted in line of duty, or for aggravation of a
preexisting injury suffered or disease contracted in line of duty, in
the active military * * * service''. The proposed language would make
it easier to understand how the presumption functions in the scheme of
VA disability compensation than the part 3 language. Additionally, the
change from ``defects, infirmities, or disorders'' to ``injury or
disease'' affords consistency of terms among proposed Sec. 5.241,
defining service-connected disability; proposed Sec. 5.244, governing
the presumption of sound condition; and proposed Sec. 5.245, governing
the presumption of aggravation. The language was chosen for
consistency. VA does not intend it to expand or limit the scope of
section 1111.
Proposed Sec. 5.244(b) would follow long-standing VA practice and
clarify that the presumption of sound condition attaches even if the
military service department did not conduct an entry medical
examination or if there is no record of an entry examination. To relate
this rule to the authorizing statute, if there was no entry medical
examination, then there could be no ``defects, infirmities, or
disorders noted at the time of the examination, acceptance, and
enrollment'' that would serve to prevent the presumption from arising.
See 38 U.S.C. 1111. The same reasoning would apply if there were no
record of an entry examination. It is fair and reasonable to apply the
presumption of sound condition the same way to a veteran whose record
of examination is missing as to a veteran whose service records show no
examination was done in connection with entry.
Proposed Sec. 5.244(c)(1) would be derived from current Sec.
3.304(b)(1), which provides in part that ``[h]istory of preservice
existence of conditions recorded at the time of examination does not
constitute a notation of such conditions but will be considered
together with all other material evidence in determinations as to
inception.''
Proposed Sec. 5.244(c)(2) would be new. It would clarify that the
presumption of sound condition is rebuttable even if an entrance
physical examination report shows that the examiner tested for and did
not find the condition in question, provided that other evidence of
record is sufficient to overcome the presumption. See Kent v. Principi,
389 F.3d 1380, 1383 (Fed. Cir. 2004).
Proposed paragraph (d) would state the statutory burden of proof
for rebutting the presumption of sound condition. VA bears this burden.
The paragraph would provide the standards VA must apply to determine
whether the evidence meets this burden. The paragraph would be
consistent with current Sec. 3.304(b). Proposed paragraph (d)(1) would
require, in the case of veterans with any wartime service and of
veterans with peacetime service after December 31, 1946, clear and
unmistakable evidence that the injury or disease both preexisted
service and was not aggravated by service to rebut the presumption of
sound condition at the time of entry into military service.
Paragraph (d)(2) would refer the reader to proposed Sec. 5.245,
``Service connection based on aggravation of preservice injury or
disease'', for the substance of the rules governing whether service
aggravated a preexisting injury or disease. Proposed Sec. 5.245 would
implement the statutory presumption of aggravation. 38 U.S.C. 1153.
The Federal Circuit suggested that VA could meet the ``not
aggravated by [active military] service'' element of rebuttal for the
presumption of sound
[[Page 53751]]
condition under 38 U.S.C. 1111 with a standard similar to that
contained in 38 U.S.C. 1153. Wagner v. Principi, 370 F.3d 1089, 1096
(Fed. Cir. 2004) (noting that ``[t]he government may show a lack of
aggravation by establishing that there was no increase in disability
during service or that any `increase in disability [was] due to the
natural progress of the' preexisting condition'' (quoting 38 U.S.C.
1153)).
We adopt this suggestion as it applies to veterans with any wartime
service and of veterans with peacetime service after December 31, 1946.
It is rational to treat aggravation consistently in the context of the
presumption of sound condition and in the context of the presumption of
aggravation. The significant difference is that in the context of the
presumption of sound condition, VA must determine whether there was
aggravation if the disability claimed for service connection was not
noted on examination for entry. In the presumption of aggravation, VA
must determine whether there was aggravation of the disability claimed
for service connection if the injury or disease resulting in the
disability was noted on examination for entry. The criteria for finding
that active military service did not aggravate a preexisting injury or
disease are the same for purposes of both rebutting the presumption of
sound condition and rebutting the presumption of aggravation. We would
state the criteria in detail in proposed Sec. 5.245, which would
govern the presumption of aggravation. The discussion of proposed Sec.
5.245, below, provides additional information about these factors.
Current Sec. 3.304(b)(1) and (b)(2) includes complex provisions
concerning the factors VA considers in determining whether the
presumption of sound condition has been rebutted. Among other things,
these provisions include standards that could be construed as requiring
VA employees adjudicating claims to use medical judgment. Among these
are provisions for assessment of ``accepted medical principles,''
``clinical factors,'' the ``clinical course,'' and the like. The
sentences containing the quoted language advise claim adjudicators to
consider certain aspects of the evidence. However, it is now clear that
VA employees may not exercise their own medical judgment in
adjudicating disability compensation claims. See Gambill v. Shinseki,
576 F.3d 1307, 1329 (Fed. Cir. 2009) (noting that ``rating specialists
are not permitted to make their own medical judgments''); Colvin v.
Derwinski, 1 Vet. App. 171, 172 (Vet. App. 1991) (holding that, in
making decisions, VA must consider only ``medical evidence to support
[its] findings rather than provide [its] own medical judgment.''),
overruled in part on other grounds, Hodge v. West, 155 F.3d 1356, 1360
(Fed. Cir. 1998). Moreover, VA's duty to assist claimants with their
claims includes providing a medical examination or obtaining a medical
opinion based upon a review of the evidence of record if VA determines
it is necessary to decide the claim. 38 U.S.C. 5103A(d); 38 CFR
3.159(c)(4). Therefore, we propose to omit provisions that might be
misconstrued as requiring VA personnel adjudicating claims to exercise
their own medical judgment or allowing VA to solicit a VA medical
opinion when it is not necessary to decide the claim.
As mentioned above in discussing Sec. 5.242(b), the proposed
rewrite of the regulation implementing the presumption of soundness
would not repeat current Sec. 3.304(b)(3).
Section 5.245 Service Connection Based on Aggravation of Preservice
Injury or Disease
Proposed Sec. 5.245 would be derived from current Sec. 3.306,
``Aggravation of preservice disability''. Current Sec. 3.306(a)
provides for the presumption of aggravation ``where there is an
increase in disability during [active military, naval, or air] service,
unless there is a specific finding that the increase in disability is
due to the natural progress of the disease'', as does 38 U.S.C. 1153.
Current Sec. 3.306(b) then provides the standard of proof for
rebutting the presumption by finding that the increase in severity of a
preexisting disease was due to the natural progress of the disease, for
veterans of wartime service or of peacetime service after December 21,
1946.
We propose not to repeat in part 5 the current Sec. 3.306(c)
provisions for applying the presumption of aggravation to veterans of
entirely peacetime service prior to World War II for the same reasons
we propose not to repeat the presumption of sound condition as it
applies to this population of veterans.
In proposed Sec. 5.245(a), based on current Sec. 3.306(a), we
would replace the phrase ``active military, naval, or air service''
with ``active military service''. ``Active military service'' is
defined in proposed Sec. 5.1 as having the same meaning as ``active
military, naval, or air service''. See 71 FR at 16473. We make this
change throughout part 5.
We would restate the presumption in the active voice to provide
that ``VA will presume that active military service aggravated a
preexisting injury or disease if there was an increase in disability
resulting from the injury or disease during service (or during any
applicable presumptive period).'' In addition to improving clarity,
this restatement would put the focus of the regulation on the severity
of disability, consistent with 38 U.S.C. 1153 and the basic scheme of
VA disability compensation as being for disability. 38 U.S.C. 1110,
1131. Section 1153 of title 38, United States Code, provides that ``[a]
preexisting injury or disease will be considered to have been
aggravated by active military * * * service, where there is an increase
in disability during such service * * *'' (emphasis added). Current
Sec. 3.306(b), which explains how to implement the presumption of
aggravation, states that ``[a]ggravation may not be conceded where the
disability underwent no increase in severity''.
Proposed Sec. 5.245(a) would state the presumption and when the
presumption applies. Paragraph (b) would prescribe how to determine
whether the evidence in a claim triggers the presumption. Paragraph (c)
would prescribe the standard of proof and factors VA must consider to
rebut the presumption.
To clarify when to apply the presumption of aggravation and when to
apply the presumption of sound condition, proposed paragraph (a) would
state that the presumption under Sec. 5.245 applies only ``[w]hen an
injury or disease was noted in the report of examination for entry into
active military service.'' This is so because, if an injury or disease
was not noted in the report of examination for entry, the veteran would
be presumed sound on entry as to that injury or disease and the injury
or disease would not have preexisted active military service.
The presumption of sound condition (proposed Sec. 5.244(a)) would
apply, unless it is rebutted. To rebut the presumption of sound
condition as to any injury or disease, VA would have to determine by
clear and unmistakable evidence that the injury or disease both
preexisted service and was not aggravated by service. Thus, if VA
determines that the presumption of sound condition has been rebutted as
to an injury or disease, VA will necessarily have found by clear and
unmistakable evidence that service did not aggravate the injury or
disease, and the presumption of aggravation would not apply. Further,
if service connection is granted based on application of the
presumption of soundness in proposed Sec. 5.244, the disability rating
principles in 38 CFR 4.22, ``Rating of disabilities aggravated by
active service'', would not apply. See Wagner, 370 F.3d at 1096
(``However, if the government fails to rebut the presumption of
soundness
[[Page 53752]]
under section 1111, the veteran's claim is one for service connection.
This means that no deduction for the degree of disability existing at
the time of entrance will be made if a rating is awarded.'').
Proposed Sec. 5.245(b)(1) through (b)(3) would provide points to
consider in determining whether disability increased during service (or
during any applicable presumptive period). Current Sec. 3.306(b)
provides that ``[a]ggravation may not be conceded where the disability
underwent no increase in severity during service''. The Federal Circuit
has held that a disability is not presumed aggravated by service when
there was no increase in the severity of disability during service.
See, e.g., Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002)
(citation omitted).
Proposed Sec. 5.245(b)(3) would restate current Sec. 3.306(b)(1).
Proposed paragraphs (b)(1) and (b)(2) would be new. Paragraph (b)(1)
would provide an explicit meaning for ``increase in disability'' as the
term is used in 38 U.S.C. 1153. Paragraph (b)(2) would provide that a
temporary flare-up of a preexisting injury or disease is not an
``increase in disability''. These paragraphs would be consistent with
long-standing VA practice and judicial precedents holding that
temporary flare-ups of symptoms are not ``increase in disability'' as
the phrase is meant in section 1153. Davis, 276 F.3d at 1346 (citing
Maxson v. West, 12 Vet. App. 453, 459 (1999); Verdon v. Brown, 8 Vet.
App. 529, 537 (1996); Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991)).
Hunt established that temporary flare-ups of symptoms of a
preexisting injury or disease in service are not an ``increase in
disability''. 1 Vet. App. at 297. The Federal Circuit has stated that
``[a] corollary to the Secretary's usage [of `disability'] is that an
increase in disability must consist of worsening of the enduring
disability and not merely a temporary flare-up of symptoms associated
with the condition causing the disability.'' Davis, 276 F.3d at 1344.
In Maxson, 12 Vet. App. at 460, the CAVC held that the presumption of
aggravation is applicable ``only after it has been demonstrated * * *
that a permanent increase in disability has occurred or, pursuant to
section 3.306(b)(2), has been deemed to have occurred.'' (We discuss
below the part 5 counterpart of current Sec. 3.306(b)(2), proposed
paragraph (b)(4).) Codifying in part 5 judicial precedents that
prescribe the meaning of ``increase in disability'' would help VA apply
the presumption of aggravation consistently. The rules in proposed
paragraphs (b)(1) and (b)(2) would codify these precedents.
Proposed Sec. 5.245(b)(2) would provide for an exception ``as
provided in paragraph (b)(4)''. Proposed paragraph (b)(4) would provide
a liberalized standard for the presumption of aggravation for combat
veterans and former prisoners of war (POWs), which would be consistent
with current Sec. 3.306(b)(2) and 38 U.S.C. 1154(b). The Federal
Circuit has recognized that section 1154(b) affords combat veterans and
former POWs different treatment and held that ``evidence of temporary
flare-ups symptomatic of an underlying preexisting [injury or disease],
alone, is not sufficient for a non-combat veteran to show increased
disability under [38 U.S.C. 1153] unless the underlying condition is
worsened.'' Davis, 276 F.3d at 1346-47. Because a combat veteran or
former POW is unlikely to have contemporaneous medical records of a
development of signs or symptoms of a preexisting injury or disease, it
would be difficult for a combat veteran or former POW to prove that a
development of signs or symptoms of a preexisting injury or disease was
of a permanent nature rather than just a temporary flare-up.
Proposed Sec. 5.245(b)(4) would be derived from the sentence of
current Sec. 3.306(b)(2) about establishing aggravation with evidence
of ``symptomatic manifestations of a preexisting disease or injury
during or proximately following action with the enemy or following a
status as a prisoner of war''. We would use ``signs or symptoms''
rather than ``symptomatic manifestations''. As noted in our discussion
of proposed Sec. 5.243 above, the term ``signs or symptoms'' would be
consistent with contemporary medical usage. See Dorland's Illustrated
Med. Dictionary at 1733 (defining ``sign'' in contrast to ``symptom'');
see also 38 CFR 3.317 (using ``signs or symptoms'' and defining
``signs''). We would use the term ``signs or symptoms'' throughout part
5. We would also use ``combat'' rather than ``action with the enemy''
because they mean the same thing and 38 U.S.C. 1154(b) uses ``combat''.
It would be appropriate to include this provision among factors for
determining the severity of a disability increased in service because
it would afford veterans of combat or of former prisoner-of-war status
a specific evidentiary rule for finding aggravation of a preexisting
injury or disease in exception to the temporary flare-up provision of
proposed paragraph (b)(2).
Proposed Sec. 5.245(c), based on current Sec. 3.306(b), would
address rebuttal of the presumption of aggravation. Section 1153
provides that ``[a] preexisting injury or disease will be considered to
have been aggravated by active military, naval, or air service, where
there is an increase in disability during such service, unless there is
a specific finding that the increase in disability is due to the
natural progress of the disease.'' The statute does not specify whether
a specific finding regarding natural progress prevents the application
of the presumption of aggravation or rebuts the presumption. VA's long-
standing interpretation of Sec. 1153 is that such a finding rebuts the
presumption. 26 FR 1561, 1581 (Feb. 24, 1961). The statute is also
silent about natural progress of injuries. Consistent with section
1153, the rebuttal under proposed Sec. 5.245(c) would apply to
specific findings of natural progress to diseases, not to injuries.
The statute does not define ``natural progress''. 38 U.S.C. 1153.
The only regulatory definition of ``natural progress'' is in current
Sec. 3.306(c), ``Peacetime service prior to December 7, 1941''. Though
the standard of proof to rebut the presumption is more stringent for
wartime veterans or veterans who served after World War II than it is
for pre-World War II peacetime veterans, VA does not construe ``natural
progress'' to be something different between these groups of veterans.
Therefore, the definition of ``natural progress'' in Sec. 5.245(c)
would be derived from Sec. 3.306(c), which defines natural progress as
``the increase in severity * * * normally to be expected by reason of
the inherent character of the condition'' (emphasis added). This is a
wordy way to say the increase in severity was normal for the condition,
with ``normal'' meaning ``conforming, adhering to, or constituting a
typical or usual standard, pattern, level, or type.'' Webster's II New
College Dictionary 746 (Houghton Mifflin 2001 ed.). We intend no change
in the meaning of ``natural progress''. The restatement in proposed
Sec. 5.245(c) is not substantive.
Part 5 would not repeat current Sec. 3.322. Section 3.322(a)
addresses how to rate a disability that is service connected as
aggravated in service. It is materially the same as, and redundant of,
38 CFR 4.22, which is in VA's Schedule for Rating Disabilities in part
4 of this chapter. In the flow of processing claims for VA disability
compensation, VA must grant service connection before it determines a
rate of disability compensation. VA cannot apply the rule in current
Sec. 3.322(a) until reaching the rating phase of a claim. Rules about
how to determine a rate of disability compensation are more germane to
part 4 than to part 5. There is no benefit to veterans to state the
rule in two places, and it simplifies the rules
[[Page 53753]]
for obtaining service connection to omit a counterpart to Sec.
3.322(a) from part 5.
Current Sec. 3.322(b) provides that, if an injury or disease
incurred in peacetime service is aggravated during wartime service, or
conversely, if an injury or disease incurred in wartime service is
aggravated during peacetime service, the entire disability that results
from the injury or disease will be service connected based on wartime
service. Because there is no longer a distinction between wartime and
peacetime rates of disability compensation, there is no current need to
explain how to treat conditions incurred in wartime or peacetime
service that are aggravated during peacetime or wartime service,
respectively. The only situation in which payment of wartime versus
peacetime disability compensation could arise presently would be in
retroactive awards based on clear and unmistakable error. However, in
such cases, VA must apply the version of Sec. 3.322 in effect at the
time the erroneous decision was rendered, not the current version of
that section. Since Sec. 3.322(b) no longer serves a useful purpose,
we have not included similar material in part 5.
Section 5.246 Secondary Service Connection--Disability That Is
Proximately Caused by Service-Connected Disability
Proposed Sec. 5.246 would be based on current Sec. 3.310(a). To
be consistent throughout part 5, proposed Sec. 5.246 would contain a
few nonsubstantive differences from current Sec. 3.310(a), including
its use of the phrase ``proximately caused by'' rather than
``proximately due to''.
In addition, proposed Sec. 5.246 would refer to a service-
connected ``disability'' rather than to a service-connected ``disease
or injury'' as used in current Sec. 3.310(a). This would not be a
substantive change but, rather, would be the use of clear and
consistent terminology. In part 3, we often refer to a ``service-
connected disease or injury'' where, to be technically correct, we
intend to refer to the disability for which VA actually grants service
connection. As explained in this and other NPRMs, VA does not service
connect an event that occurred during service; rather, VA service
connects a current disability associated with such an event. We hope
that using terminology that is more precise will eliminate any
confusion on this point.
We propose not to repeat the second sentence of current Sec.
3.310(a), which states that ``[w]hen service connection is thus
established for a secondary condition, the secondary condition shall be
considered a part of the original condition.'' Regarding this sentence,
the CAVC stated that, ``[b]ased on the regulatory history, [the court]
finds that the plain meaning of the regulation is and has always been
to require VA to afford secondarily service-connected conditions the
same treatment (no more or less favorable treatment) as the underlying
service-connected conditions for all determinations.'' Roper v.
Nicholson, 20 Vet. App. 173, 181 (2006); accord Ellington v. Peake, 541
F.3d 1364, 1370 (Fed. Cir. 2008) (approving CAVC's Roper decision
construing Sec. 3.310(a)). There is no statute or regulation
pertaining to secondary service connection that inhibits a veteran's
rights, diminishes a veteran's benefits, or reduces VA's duties to a
veteran as they relate to a secondarily service-connected disability.
Consequently, the second sentence of Sec. 3.310(a) conveys no benefit
to the veteran who obtains secondary service connection for a
disability. Its omission would infringe no rights. Rather, its omission
would clarify that an award of secondary service connection would have
its own disability rating and effective date separate from the
underlying service-connected condition. Omitting the sentence would
also simplify the secondary-service-connection regulation, consistent
with that purpose of part 5.
Section 5.247 Secondary Service Connection--Nonservice-Connected
Disability Aggravated by Service-Connected Disability
Proposed Sec. 5.247 would be derived from current Sec. 3.310(b).
It would restate the current rule in plain language. We intend no
change in meaning. For the reasons discussed above in relation to
proposed Sec. 5.246, proposed Sec. 5.247 would use the phrase
``proximately caused'' rather than ``proximately due to'', and it would
refer to a nonservice-connected or service-connected ``disability''
rather than to a nonservice-connected or service-connected ``disease or
injury''.
Section 5.248 Service Connection for Cardiovascular Disease Secondary
to Service-Connected Lower Extremity Amputation
The rule concerning awards of secondary service connection for
cardiovascular disease is currently stated in Sec. 3.310(c). We
propose to state this rule as a separate regulation in Sec. 5.248
because it is a discrete rule of secondary service connection that
effectively establishes an irrebuttable presumption of service
connection. We intend no substantive change.
Section 5.249 Special Service Connection Rules for Combat-Related
Injury or Disease
Proposed Sec. 5.249 would provide special service connection rules
for veterans who served in combat. It would implement 38 U.S.C. 1154(b)
and is based on current Sec. Sec. 3.102 (last sentence), 3.304(d), and
3.305(c). The proposed rule would specifically clarify that VA will
accept a combat veteran's description of an event, disease, or injury
in service as sufficient to establish that an injury or disease was
incurred or aggravated in service.
We would explicitly state that the regulation applies only to
determinations of incurrence or aggravation of an injury or disease in
service, whereas the current laws state that VA may accept lay evidence
``as sufficient proof of service-connection.'' 38 U.S.C. 1154(b); see
also 38 CFR 3.304(d). Despite the language used in the current laws
(that is, that lay evidence is ``proof of service connection''), VA
does not generally allow a combat veteran's lay evidence of an in-
service injury, by itself, to establish a current disability or a nexus
between that injury and a current disability. This interpretation of
the authorizing statute and the implementing regulations is consistent
with judicial precedent. See Collette v. Brown, 82 F.3d 389, 392 (Fed.
Cir. 1996) (holding that ``[s]ection 1154(b) does not create a
statutory presumption that a combat veteran's alleged disease or injury
is service-connected'' but, rather, still requires a veteran to ``meet
his evidentiary burden with respect to service connection'' while
``considerably lighten[ing] the burden''). Also pursuant to section
1154(b), proposed Sec. 5.249(a) would explicitly provide that the
finding of incurrence or aggravation relating to combat with the enemy
would be subject to rebuttal under a heightened ``clear and convincing
evidence'' standard.
Proposed paragraph (a)(2) would be new. Paragraph (a)(2) would
codify the definition of ``engaged in combat with the enemy'' in
VAOPGCPREC 12-99. Where the General Counsel uses the term
``instrumentality'', we would use the term ``instrument or weapon'',
which is more readily understood. Whether any particular set of
circumstances constitutes engagement in combat with the enemy for the
purposes of 38 U.S.C. 1154(b) must be resolved on a case-by-case basis.
See VA General Counsel's opinion, VAOPGCPREC 12-99, 65 FR 6257, 6258,
Feb. 8, 2000 (discussing the
[[Page 53754]]
meaning of ``engaged in combat with the enemy'' as used in 38 U.S.C.
1154(b)). Based on the plain language of 38 U.S.C. 1154(b), the phrase
``engaged in combat with the enemy'' requires that the veteran have
personally participated in events constituting an actual fight or
encounter with a military foe or hostile unit or instrumentality. Id.
We would add this clarification in proposed Sec. 5.249(a)(2). We also
propose to clarify that participation in such events includes
performing certain noncombatant duties, such as providing medical care
to the wounded.
Proposed Sec. 5.249(b) would be a new provision. It would provide
that, when a veteran has received one of the listed combat decorations,
VA will not require additional evidence to verify that the veteran
engaged in combat with the enemy, unless there is clear and convincing
evidence to the contrary. Such decorations are reliable proof that a
veteran engaged in combat. We realize that new types of combat
decorations may be issued in the future and have provided for that
contingency in proposed Sec. 5.249(b)(17). We additionally propose to
include the Combat Action Badge in Sec. 5.249(b)(16). On February 11,
2005, the Army announced this new decoration, with the intent to
provide special recognition to ground combat arms soldiers who are
trained and employed in direct combat missions similar to Infantry and
Special Forces.
Section 5.250 Service Connection for Posttraumatic Stress Disorder
Proposed Sec. 5.250 would be dedicated entirely to the
adjudication of claims for service connection for posttraumatic stress
disorder (PTSD). This new regulation would contain the substance of
current Sec. 3.304(f) with some technical revision and additional
content stating VA's policy and procedures for adjudicating these
claims.
Proposed Sec. 5.250(a) would list the elements of proof of a PTSD
claim, which are similar to the requirements to establish service
connection for any other current disability and would be derived from
current Sec. 3.304(f). Paragraph (a)(1) would require evidence of a
current disability. Paragraph (a)(2) would require a link between
``current signs or symptoms'' of PTSD and ``an in-service stressor''.
In PTSD cases, the in-service injury is always the ``stressor'' that
caused the PTSD. We refer to ``signs or symptoms'' because the American
Psychiatric Association's Diagnostic and Statistical Manual of Mental
Disorders (4th ed. 1994) (DSM-IV) includes objective phenomena among
the diagnostic criteria for PTSD, for example, ``physiological
reactivity,'' ``hypervigilance,'' and ``exaggerated startle response.''
Id. at diagnostic code 309.81 B(5), D(4) and (5). VA uses the
diagnostic criteria of the DSM-IV to diagnose PTSD. See 38 CFR
4.125(a).
Proposed paragraph (a)(3) would require ``credible supporting
evidence that the claimed in-service stressor occurred.'' Although this
is an evidentiary requirement, we would state it as an element of a
PTSD claim because it is often the central issue to the adjudication of
such a claim, being the focus of most of the evidentiary development.
Multiple judicial opinions have upheld the validity of the requirement.
See, e.g., Nat'l Org. of Veterans' Advocates, Inc, v. Sec'y of Veterans
Affairs, 330 F.3d 1345, 1350-51 (Fed. Cir. 2003); Moran v. Principi, 17
Vet. App. 149, 155-59 (2003). Given the number of court decisions the
``credible supporting evidence'' requirement has engendered, we propose
to identify the two salient features of such evidence: (1) It can be
from any source other than the claimant's statement; and (2) It must
corroborate the occurrence of the alleged in-service stressor. See
Moran, 17 Vet. App. at 159. The definition would make no substantive
change in the regulation, but it would lend it certainty.
Proposed Sec. 5.250(b) would be new. It would require, generally,
that VA seek verification of a stressor before denying a claim solely
on the ground that the stressor is not verified. The revision is
designed to make it clear when VA must seek verification from the
appropriate entity, such as the U.S. Army and Joint Services Records
Research Center. Verification will not be possible when the claimant's
statements describing the claimed in-service stressor are too vague to
enable the appropriate agency to try to corroborate the events
described. Therefore, the proposed rule would not require VA to seek
verification when the claimant fails to provide information requested
by VA that is needed to try to verify the event(s) described in his or
her statement.
Proposed Sec. 5.250(c) would be derived from current Sec.
3.304(f)(1). Proposed paragraph (d) would explicitly state that the
presumptions at proposed Sec. 5.249, ``Special service connection
rules for combat-related injury or disease'', would apply to establish
an in-service stressor for combat veterans. The current rule, in Sec.
3.304(f)(2), repeats the language of the evidentiary presumption
applicable to combat veterans, where this rule would simply refer the
reader to that presumption. The proposed rule would also reference
former prisoners of war because current Sec. 3.304(f)(4) treats such
veterans in the same manner as combat veterans for purposes of PTSD
claims. Again, no substantive changes are intended.
Proposed Sec. 5.250(e) is based on Sec. 3.304(f)(3), which
governs cases where a VA psychiatrist or psychologist has confirmed the
stressor. The first sentence of paragraph (f)(3) is 103 words and the
second is 100 words. We have reorganized these sentences by breaking
them into subparagraphs, which will make this provision easier to read
and apply.
Proposed paragraph (f) would be a plain-language rewrite of current
Sec. 3.304(f)(5) with no substantive differences.
Section 5.251 Current Disabilities for Which VA Cannot Grant Service
Connection
Proposed Sec. 5.251 would list disabilities for which VA cannot
grant service connection and distinguish them from similarly named
disabilities for which VA can grant service connection. Current Sec.
3.303(c) identifies certain disabilities that ``are not diseases or
injuries within the meaning of applicable legislation.'' We would
restate the rule in proposed Sec. 5.251(a) by identifying specific
disabilities for which ``VA will not grant service connection * * *
because they are not the result of an injury or disease for purposes of
service connection''. By using the ``not the result of'' language, the
proposed rule would recognize that the listed conditions are indeed
disabilities, but clarify that they are not caused by an injury or
disease. Also, in paragraph (a) we would omit the phrase ``within the
meaning of applicable legislation'' because the ``applicable
legislation'', 38 U.S.C. 1110 and 1131, is cited as the statutory
authority for Sec. 5.251.
In addition, proposed Sec. 5.251 would update some of the terms
used to identify the listed disabilities. In proposed paragraphs (a)(1)
and (a)(2), we would refer to ``[c]ongenital or developmental defects
(such as congenital or developmental refractive error of the eye)'' and
to ``[d]evelopmental personality disorders'', rather than to
``refractive error of the eye'' and to ``personality disorders'',
respectively, as stated in current Sec. 3.303(c). These changes would
distinguish disorders that do not result from injury or disease, like
myopia or personality disorder, from similarly named disorders for
which VA permits service connection, such as ``malignant or pernicious
myopia'' or ``personality
[[Page 53755]]
change due to general medical condition'', both discussed below.
Personality disorders have onset by adolescence or early adulthood.
DSM-IV at 629. Although technically redundant, paragraph (a)(2) uses
the term ``developmental personality disorder'' to distinguish clearly
between ``personality disorder'' and ``personality change''. This
clarification is necessary because in paragraph (b)(2), we would state
that VA is not precluded from granting service connection for the
disability of ``[p]ersonality change'' if it is the result of an
organic mental disorder, see 38 CFR 4.130 Diagnostic Code 9327, or is
an interseizure manifestation of psychomotor epilepsy, see 38 CFR
4.122(b), 4.124a Diagnostic Code 8914. Section 5.251(a)(2) and (b)(2)
would help ensure that personality changes due to general medical
conditions are given appropriate consideration, in light of the above
rating-schedule provisions.
In proposed paragraph (a)(3), we would refer to ``[d]evelopmental
intellectual disability (mental retardation)'' rather than to ``mental
deficiency'', as stated in current Sec. 3.303(c). The term
``intellectual disability'' would represent current medical
terminology. ``Mental deficiency'' is an archaic term, replaced decades
ago by ``mental retardation'', and more recent medical usage has
replaced the term ``mental retardation'' with ``intellectual
disability.'' See Robert L. Schalock, et al., The Renaming of Mental
Retardation: Understanding the Change to the Term Intellectual
Disability, Intellectual and Developmental Disabilities, April 2007, at
116-124. VA would use the term ``developmental intellectual
disability'' to distinguish the intellectual disability formerly called
mental retardation from impairment of intellect resulting from injury
or disease incurred during active service.
In proposed paragraph (b), we would set forth several disabilities
that are distinguishable from the disabilities listed in the rule in
paragraph (a). Paragraph (b) would list those disabilities for which VA
can grant service connection because, although the disabilities
manifest like those precluded in paragraph (a), they are scientifically
distinguishable and actually result from an injury or disease. VA
currently distinguishes these two categories of disabilities based on
long-standing internal VA guidance, which is implicit in current Sec.
3.303(c) and may be discerned from multiple sections of the VA Schedule
for Rating Disabilities in part 4 of this chapter. It would be
advantageous to claimants and to VA employees to state these rules
explicitly. Thus, this would not be a substantive change in VA
practice, even if proposed paragraph (b) would be the first explicit
regulatory discussion of these disabilities.
Proposed paragraph (b)(1) would list ``[m]alignant or pernicious
myopia'' as a disability for which VA will grant service connection
because malignant or pernicious myopia is associated with a disease,
while other types of myopia are congenital or developmental refractive
errors of the eye. Compare ``myopia'' with ``malignant m., pernicious
m.'' Dorland's Illustrated Med. Dictionary, at 1243.
In proposed paragraph (b)(2), we would use the term ``personality
change'' to identify the personality altering effects of an injury or
disease that VA can service connect. This paragraph would distinguish
personality change from ``developmental personality disorder'', which
VA cannot service connect. The VA Schedule for Rating Disabilities in
part 4 of this chapter (Schedule for Rating Disabilities) identifies
personality changes by several different names. See Sec. 4.122(b) of
this chapter (referring to interseizure manifestation of psychomotor
epilepsy); Sec. 4.124a of this chapter, Diagnostic Code 8045
(neurobehavioral effects of traumatic brain injury not otherwise
classified); Sec. 4.130 of this chapter, Diagnostic Code 9304
(dementia due to head trauma), Diagnostic Code 9326 (dementia due to
other neurologic or general medical conditions or that are substance
induced), and Diagnostic Code 9327 (organic mental disorder, including
personality change due to a general medical condition).
Proposed paragraph (b)(3) would allow service connection of an
``intellectual disability'', or ``mental retardation'' as referred to
in part 4 of this chapter, that results from a service-connected
disability. We would use the term ``nondevelopmental intellectual
disability'' to distinguish it from ``developmental intellectual
disability'', or ``mental retardation'' as it is called in Sec. 4.127,
which may not be service connected. As with personality change due to
general medical condition or injury, this rule would codify long-
standing VA practice without implementing any substantive change. For
example, the Schedule for Rating Disabilities allows compensation for
disability resulting from mental retardation and personality disorder
``as provided in Sec. 3.310(a) of this chapter.'' See 38 CFR 4.127.
Section 3.310(a) provides for compensation for disability proximately
due to or the result of service-connected injury or disease (secondary
service connection).
Despite using the terms ``personality disorder'' and ``mental
retardation'', Sec. 4.127 allows VA to compensate those disabilities
that proposed Sec. 5.251(b)(2) and (3) would refer to as ``personality
change'' and ``nondevelopmental intellectual disability'',
respectively. VA's regulation for rating residuals of traumatic brain
injury also demonstrates that VA service connects intellectual
disability resulting from injury incurred in service. See Sec. 4.124a
of this chapter, Diagnostic Code 8045, ``Residuals of traumatic brain
injury'', which provides criteria for ``[f]acets of cognitive
impairment and other residuals of [traumatic brain injury] not
otherwise classified''. Consistent with Sec. 4.127 regarding secondary
service connection for ``mental retardation'', proposed Sec.
5.251(b)(3) would allow service connection for ``nondevelopmental
intellectual disability'' proximately caused by a service-connected
disability. With the changes in terminology discussed above, we propose
to explicitly identify in proposed Sec. 5.251(b)(1) through (3) the
disabilities that are distinguishable from those listed in current
Sec. 3.303(c). The listing of these distinguishable disabilities would
not result in a substantive change to existing regulations.
Section 4.127 of this chapter permits service connection for a
disability from a mental disorder superimposed on mental retardation or
a personality disorder. In Sec. 5.251(c) we would make clear that this
concept applies to all disabilities, not only mental disorders. A
veteran could incur a disability affecting the same body part or system
as a defect listed in proposed Sec. 5.251(a). Proposed Sec. 5.251(c)
would clarify that proposed Sec. 5.251(a) does not preclude granting
service connection for such a separate disability.
VA has long held that the rules in the last sentence of current
Sec. 3.303(c), upon which proposed Sec. 5.251(a)(1) would be based,
do not preclude granting service connection for disability due to an
inherited disease. We propose to clarify, in Sec. 5.251(d), that
congenital or developmental defects are distinguishable from
``inherited or familial diseases'' and that Sec. 5.251(a) does not bar
service connection for disability due to an inherited or familial
disease. For the text of proposed Sec. 5.261(f), which is cross-
referenced in proposed Sec. 5.251(d), see 69 FR 44625 (July 27, 2004).
Proposed Sec. 5.251(e) would be derived from current Sec. 3.380,
``Diseases of allergic etiology'', which essentially
[[Page 53756]]
advises the reader not to assume that diseases of allergic etiology are
constitutional or developmental abnormalities. Section 3.380 also
states:
Service connection must be determined on the evidence as to
existence prior to enlistment and, if so existent, a comparative
study must be made of its severity at enlistment and subsequently.
Increase in the degree of disability during service may not be
disposed of routinely as natural progress nor as due to the inherent
nature of the disease. Seasonal and other acute allergic
manifestations subsiding on the absence of or removal of the
allergen are generally to be regarded as acute diseases, healing
without residuals. The determination as to service incurrence or
aggravation must be on the whole evidentiary showing.
These provisions are hortatory and provide no rights or duties
beyond those already contained in other regulations. We note that 38
CFR 3.303(a) prescribes that VA must decide claims for service
connection ``based on review of the entire evidence of record''.
Proposed Sec. 5.4(b) would expand that rule to apply to all
compensation and pension claims, stating that ``VA decisions will be
based on a review of the entire record''. Under that provision, VA must
consider the entire record in determining whether an increase in
severity is due to the natural progress of a disease; this principle
applies to allergies just like any other disease. Thus, VA cannot
assume that any increase in severity of a particular disease must be
due to the natural progress of that disease. Therefore, we would not
include the quoted portion of current Sec. 3.380 in part 5.
Rating Service-Connected Disabilities
Section 5.280 General Rating Principles
Proposed Sec. 5.280 would be based on current Sec. 3.321(a),
pertaining to use of the Schedule for Rating Disabilities in part 4 of
this chapter, and current Sec. 3.321(b)(1), (b)(3), and (c),
pertaining to extra-schedular disability compensation ratings. The part
5 counterpart of current Sec. 3.321(b)(2), pertaining to extra-
schedular pension ratings, would be Sec. 5.381(b)(5). See 72 FR at
54793 (Sep. 26, 2007).
We are not repeating the language in current Sec. 3.321(a), or
similar language in Sec. 3.321(b)(1), that ``[t]he provisions
contained in the rating schedule will represent as far as can
practicably be determined, the average impairment in earning capacity
in civil occupations resulting from disability.'' This language is
redundant of similar language in current Sec. 4.1 of this chapter and
is beyond the scope of the topic of part 5. It represents a basic
precept of the rating schedule appropriately stated in part 4. It is
not an actual instruction for extra-schedular rating. Omitting the
statement from part 5 simplifies the part 5 regulation. As the language
conveys no specific right to claimants, its omission cannot deprive a
claimant of any right.
We also propose not to repeat the phrase in current Sec.
3.321(b)(1) that ``the Secretary shall from time to time readjust this
schedule of ratings in accordance with experience.'' This phrase quotes
38 U.S.C. 1155 verbatim. It imposes no duty on VA not stated completely
in the statute. It conveys no right applicable to any specific claim.
The statutory charge to the Secretary to readjust the rating schedule
is not pertinent to instructions for extra-schedular rating. VA affords
an extra-schedular rating to those for whom the schedule cannot provide
an adequate rating for the reasons stated in the regulation, regardless
of what the schedule provides at any given time. Omitting the phrase
from part 5 is not a substantive change in the regulation on
extraschedular ratings.
Proposed Sec. 5.280 would update certain VA terminology consistent
with current usage and with choices of terms used consistently
throughout part 5. Where current Sec. 3.321(b)(1) requires that a VA
``field station'' submit a claim for extra-schedular ``evaluation'',
proposed Sec. 5.280(b) would require that a ``Veterans Service Center
(VSC)'' submit a claim for extra-schedular ``rating''. The terms
``rate'' and ``rating'' are used throughout part 5, rather than
``evaluate'', ``evaluating'', and ``evaluation'', when referring to the
process of applying the Schedule for Rating Disabilities in part 4 of
this chapter to the facts of an individual claim for benefits. Where
current Sec. 3.321(c) provides that a field station may submit a claim
to ``[VA] Central Office'' for an advisory opinion under certain
circumstances, proposed Sec. 5.280(c) would provide that a VSC may
submit a claim to ``the Director of the Compensation and Pension
Service'', to reflect long-standing VA practice accurately. We intend
no substantive change with these changes of terminology.
Additionally, we would not repeat current Sec. 3.323(a). Paragraph
(a)(1) is another instance of providing rating instructions in part 3
that do not afford specific rights to claimants or impose any duty on
VA other than those contained in part 4. See Sec. 4.25 of this
chapter, ``Combined ratings table''; Sec. 4.26 of this chapter,
``Bilateral factor.'' Current Sec. 3.323(a)(2) reads as follows:
(2) Wartime and peacetime service. Evaluation of wartime and
peacetime service-connected compensable disabilities will be
combined to provide for the payment of wartime rates of
compensation. (38 U.S.C. 1157) Effective July 1, 1973, it is
immaterial whether the disabilities are wartime or peacetime
service-connected since all disabilities are compensable under 38
U.S.C. 1114 and 1115 on and after that date.
This paragraph no longer serves a useful purpose. As it indicates,
there has been no distinction between wartime and peacetime rates of
disability compensation for many years. Any retroactive award involving
those distinctions would be based on statutes and regulations in effect
at the time.
Section 5.281 Multiple 0-Percent Service-Connected Disabilities
Proposed Sec. 5.281 would be based on current Sec. 3.324. We
propose to change the term ``noncompensable'' in the section heading to
``0 percent'' for simplicity. ``0 percent'' would be more
understandable for many regulation users. VA interprets current Sec.
3.324 as requiring the relevant disabilities be permanent and the
combined effect of the disabilities interfere with normal
employability. The proposed regulation would state this clearly.
Section 5.282 Special Consideration for Paired Organs and Extremities
Proposed Sec. 5.282 would be based on current Sec. 3.383. The
rule would provide for disability compensation for certain paired
organs and extremities, where disability from one of the pair is
service-connected and disability from the other is not. Consistent with
current Sec. 3.383, proposed Sec. 5.282(a) would state that ``VA will
not pay compensation for the nonservice-connected disability if the
veteran's willful misconduct proximately caused it.'' The term
``proximately caused'' would be equivalent to ``the result of''.
``Veteran's'' rather than ``veteran's own'' would eliminate redundancy,
as ``veteran's own'' means the same thing as ``veteran's''. Though
``own'' might add emphasis, it would add no meaning.
Proposed Sec. 5.282(b)(1) would provide that VA will pay
compensation for the combination of service-connected and nonservice-
connected ``impairment of vision'' of both eyes if ``(i) The impairment
of vision in each eye is rated at a visual acuity of 20/200 or less; or
(ii) The peripheral field of vision for each eye is 20 degrees or
less.''
Current Sec. 3.383 refers to ``loss or loss of use'' of certain
body parts. In Sec. 5.282(b)(2) and (b)(4), we propose to use
``anatomical loss or loss of use'' of the named body part. The proposed
usage would be like that in 38 U.S.C. 1114(k), which provides increased
[[Page 53757]]
compensation benefits for ``anatomical loss or loss of use'' of certain
body parts. ``Loss'' means ``anatomical loss'' in the phrase ``loss or
loss of use'' in current Sec. 3.383. The proposed usage of the phrase
``anatomical loss'' would preclude misconstruing ``loss'' as some other
type of loss that is neither anatomical loss nor loss of use.
Proposed Sec. 5.282(c) would be based on rules in current Sec.
3.383(b) requiring offset against VA disability compensation for money
or property veterans recover in a judgment, settlement, or compromise
of a cause of action concerning their qualifying nonservice-connected
disability. We propose to omit current Sec. 3.383(b)(2), which
pertains to the October 28, 1986, effective date for the offset
provisions. Any award that would be granted under proposed Sec. 5.282
would require offset because the award would be made ``on or after
October 28, 1986.'' Retaining the effective date of a statutory change
occurring over 23 years ago would serve no useful purpose.
Section 5.283 Total and Permanent Total Ratings and Unemployability
Proposed Sec. 5.283 would be based on current Sec. 3.340, ``Total
and permanent total ratings and unemployability.'' Proposed Sec. 5.283
would expand several dense paragraphs of current Sec. 3.340 into
individually designated rules for clarity, would update certain
obsolete terms, and would promote consistency of terms throughout part
5. None of the differences between current Sec. 3.340 and proposed
Sec. 5.283 would be substantive.
Current Sec. 3.340(a) prescribes the criteria for total disability
and distinguishes it from permanent disability by stating that
``[t]otal disability may or may not be permanent.'' Proposed Sec.
5.283(a)(1) would include this distinction by stating that ``[f]or
compensation purposes, a total disability rating may be granted without
regard to whether the impairment is shown to be permanent.''
Proposed Sec. 5.283(a)(2) would refer to Sec. Sec. 4.16 and 4.17
of this chapter rather than to ``paragraph 16, page 5 of the rating
schedule'' and to ``paragraph 17, page 5 of the rating schedule'',
respectively, as current Sec. 3.340(a)(2) does. Current Sec. Sec.
4.16 and 4.17 of this chapter are the counterparts of the references in
current Sec. 3.340(a)(2) to rules in the 1945 edition of the Schedule
for Rating Disabilities. This change would update references to
paragraphs of the 1945 edition of the Schedule for Rating Disabilities
to the equivalent sections of the current Schedule for Rating
Disabilities in part 4 of this chapter.
Proposed Sec. 5.283(a)(3), based on current Sec. 3.340(a)(3),
would reformat the factors to consider in determining whether to rate a
disability that has undergone some recent improvement as total based on
its history. The proposed rule would state the factors in the same
sequence as the current rule but would designate the factors
individually for clarity.
Proposed Sec. 5.283(b), based on current Sec. 3.340(b), would
reformat the factors VA must consider in determining whether a total
disability is permanent. The proposed rule would state the factors in
the same sequence as the current rule but would designate the factors
individually for clarity.
Current Sec. 3.340(b) provides that a total disability is
permanent when it is reasonably certain that ``such disability'' will
continue throughout the life of the disabled person. ``Such
disability'' refers to the disability described in current Sec.
3.340(a) as total, that is, ``any impairment of mind or body which is
sufficient to render it impossible for the average person to follow a
substantially gainful occupation.'' Proposed Sec. 5.283(b) would
restate the definition of total disability in place of ``such'', so the
user need not trace the regulation to find what is meant by ``such''
disability.
Proposed Sec. 5.283(b)(1) would use the phrases ``anatomical loss
or loss of use'' of certain body parts and ``anatomical loss or loss of
sight of both eyes'' where current Sec. 3.340(b) uses the phrase
``loss or loss of use'' of certain body parts or the sight of both
eyes. As stated in our preamble discussion of Sec. 5.282, the proposed
usage would be like that in 38 U.S.C. 1114(k), which provides increased
compensation benefits for ``anatomical loss or loss of use'' of certain
body parts. ``Loss'' means ``anatomical loss'' in the phrase ``loss or
loss of use'' in current Sec. 3.340(b). The proposed usage of the
phrase ``anatomical loss'' would preclude misconstruing ``loss'' as
some other type of loss that is neither anatomical loss nor loss of
use.
Proposed Sec. 5.283(b)(1) and (3) would use the phrase
``permanently so significantly disabled as to need regular aid and
attendance'' where current Sec. 3.340(b) uses the phrase ``permanently
helpless''. We would replace the term ``helpless'' with the term ``so
significantly disabled as to need regular aid and attendance'' to
conform to the Veterans' Housing Opportunity and Benefits Improvement
Act of 2006 (Pub. L. 109-233), which amended certain sections of title
38, U.S.C., to replace the obsolete term ``helpless'' with the term
``significantly disabled'' (and similar terminology) when describing
persons who need regular aid and attendance. See, e.g., 38 U.S.C.
1114(l), 1115(1)(E), and 1502(b). Additionally, where current Sec.
3.340(b) refers to the state of being ``permanently helpless or
bedridden'', proposed Sec. 5.283(b)(3) would refer to the state of
being ``permanently bedridden'' apart from the state of being
``permanently so significantly disabled as to need regular aid and
attendance''. This would preclude any ambiguity about whether bedridden
status must also be permanent to qualify as a criterion of a
``permanent total disability''. The differences between proposed Sec.
5.283(b)(1) and (3) and current Sec. 3.340(b) would not be
substantive.
Section 5.284 Total Disability Ratings for Disability Compensation
Purposes
Proposed Sec. 5.284 would be based on current Sec. 3.341, ``Total
disability ratings for compensation purposes.'' To eliminate redundancy
with part 4, we would not repeat the second sentence of current Sec.
3.341(a), which prohibits VA from considering the age of a veteran in
determining whether the veteran is unemployable even though his or her
schedular rating is less than 100 percent. That rule is sufficiently
stated in Sec. 4.19 of this chapter. The omission would not be
substantive.
Proposed Sec. 5.284(c) would omit the reference in current Sec.
3.341(c) to ``the period beginning after January 31, 1985'' because any
VA ratings pursuant to this proposed rule would take place after
January 31, 1985. The omission would not be substantive.
Section 5.285 Continuance of Total Disability Ratings
Proposed Sec. 5.285 would be based on paragraphs (a) and (c) of
current Sec. 3.343, ``Continuance of total disability ratings.'' (The
part 5 counterpart to Sec. 3.343(b), ``Tuberculosis; compensation'',
was published in another NPRM as proposed Sec. 5.347. See 73 FR 62004
(Oct. 17, 2008)). The proposed rule would be more succinct than current
Sec. 3.343, for example, by changing the phrase ``temporary
interruptions in employment which are of short duration'' in current
Sec. 3.343(c) to ``brief interruptions in employment'' in proposed
Sec. 5.285(b)(4).
Proposed Sec. 5.285 would reorganize current Sec. 3.343. It would
first state the rule that ``VA will not reduce a total disability
rating that was based on the severity of a person's disability or
disabilities without examination showing material improvement in
physical or mental condition.'' Proposed Sec. 5.285(a) would clarify
in a separate sentence that ``VA may reduce a total
[[Page 53758]]
disability rating that was based on the severity of a person's
disability or disabilities without examination if the rating was based
on clear error.'' This rule would constrain VA from reducing total
disability ratings based on the severity of a person's disability or
disabilities unless VA examines the totally disabled person and
considers the listed factors. Paragraph (a)(1) would articulate the
factors VA must consider before it can reduce a total rating. Paragraph
(a)(2) would prescribe the circumstances that require VA to reexamine
the person before it may reduce a total rating, and when the
reexamination must occur. Paragraph (a)(3) would clarify that the rules
contained in paragraph (a), (a)(1), and (a)(2) do not apply when a
total rating is purely based on hospital, surgical, or home treatment
or individual unemployability. This clarification is currently imbedded
in the first sentence of current Sec. 3.343(a).
Proposed Sec. 5.285(b) would be based on current Sec. 3.343(c),
``Individual unemployability.'' Proposed paragraph (b) would reorganize
the elements of Sec. 3.343(c) without making any substantive changes.
The proposed rule would not repeat the instruction in Sec. 3.343(c)(1)
to apply the procedural protections for reductions of disability
ratings to the reduction of a total disability rating based on
individual unemployability (TDIU). The procedural protections apply to
all reductions of compensation, not just to TDIU reductions. Including
the reference to procedural protections here could lead readers to
believe incorrectly that those protections do not apply elsewhere. The
paragraph would therefore begin with the substance of the rules
governing the reduction of a TDIU rating. The contents of the proposed
rule are the same as in Sec. 3.343(c), but the constituent elements of
the long paragraph in Sec. 3.343(c) would be reformatted for clarity
and to avoid ambiguity. Proposed paragraph (b)(1) would state VA's
standard of proof for reducing a TDIU rating. Paragraph (b)(2) would
prescribe specific types of evidence VA must receive to meet the
standard of proof for reduction of a TDIU rating of a veteran in
vocational rehabilitation, education, or training. Paragraph (b)(3)
would provide that a veteran's participation in certain VA programs
will be considered evidence of employability for purposes of reducing a
TDIU rating. Paragraph (b)(4) would restate current Sec. 3.343(c)(2)
with the change for succinctness mentioned above. Paragraph (b)(4)
would also omit the reference in current Sec. 3.343(c) to ``the period
beginning after January 1, 1985'' because any VA ratings pursuant to
this proposed rule would take place after January 1, 1985. The omission
would not be substantive.
Additional Disability Compensation Based on a Dependent Parent
Parental dependency is significant in the context of VA disability
compensation for veterans because VA pays a veteran additional
compensation under certain circumstances if the veteran has a dependent
parent. See 38 U.S.C. 1115, ``Additional compensation for dependents'';
38 U.S.C. 1135, ``Additional compensation for dependents''; and
proposed Sec. 5.240(b) included in this NPRM. Proposed Sec. Sec.
5.300 and 5.302 through 5.304 would address parental dependency for
purposes of disability compensation for veterans.
Section 5.300 Establishing Dependency of a Parent
VA is authorized by statute to pay additional compensation to a
veteran with service-connected disability rated 30-percent or more
disabling who has a parent who is dependent upon the veteran for
support. 38 U.S.C. 1115(1)(D), (2). Proposed Sec. 5.300 would describe
how to establish the dependency of a parent. For consistency throughout
part 5 and for simplicity in this rule, we would use the singular
``parent'' or ``parent's'' where current Sec. 3.250 uses the plural.
This would not be a substantive change.
Proposed paragraph (a) would be substantively equivalent to current
Sec. 3.250(a), which prescribes specific income requirements for a
conclusive finding of the dependency of a parent. Proposed Sec.
5.300(a)(1)(i) would clarify that the income threshold for a mother or
father not living together would be the same for a remarried parent and
parent's spouse not living together. This is implicit under current
Sec. 3.250(a) because, if a remarried parent and parent's spouse were
not living together, the appropriate income limitation category would
be the amount under current Sec. 3.250(a)(1)(i) for ``a mother or
father not living together''. Proposed Sec. 5.300(a)(2) would clarify
that net worth is not a consideration when a parent's income is at or
below the prescribed levels in proposed paragraph (a)(1). This
information is implicit in current Sec. 3.250(a)(1) and (2), but it is
not clearly stated.
When proposed paragraph (a) would not apply, VA must determine
dependency on a case-by-case basis. Proposed Sec. 5.300(b) would
explain when VA must make a factual finding of dependency. Proposed
paragraph (b)(1) would provide the general rule for establishing
factual dependency. Proposed paragraph (b)(2) would state the
requirements for consideration of net worth when VA must establish
factual dependency.
Proposed paragraph (b)(1)(ii) would restate current Sec. 3.250(c).
We removed the qualification of ``habitual contributions'' and made the
rule simpler. Contributions from the veteran to a parent would be
considered income under the rule governing income. See proposed Sec.
5.302, ``General income rules--parent's dependency''. A single
contribution to the parent, for example, of $50,000, would be
considered income. The regularity of the contribution would not be
determinative. This would be consistent with current VA practice. The
object of the rule would be to ensure that a Veterans Service
Representative does not assume a parent is a veteran's dependent merely
because the veteran gives the parent money. Also, even if the parent's
receipt of money from the veteran is the parent's only income, i.e.,
the parent is entirely dependent on the veteran, if the veteran's
contribution is sufficient to provide reasonable maintenance for the
parent, the parent will not be considered a veteran's dependent for
purposes of proposed paragraph (b)(1). We intend no substantive change.
Proposed Sec. 5.300(c) would define the term ``family member'' by
incorporating provisions contained in the introduction to current Sec.
3.250(b) and in current Sec. 3.250(b)(2). The introduction to current
Sec. 3.250(b) describes a family member as a member under legal age or
an adult member of the family who is dependent due to mental or
physical incapacity. However, paragraph (b)(2), incorporating language
in 38 U.S.C. 102(b)(2), defines a family member as one whom the father
or mother is under a legal or moral obligation to support. We propose
to combine this information into one definition. We also propose to
define family member as a relative. This has always been VA's intent,
which is why current Sec. 3.250(b) and (b)(2) refers to a ``member of
the family'' rather than to a member of the household. This change
would standardize the application of this section nationally and would
be consistent with long-standing VA practice.
We have not repeated in proposed Sec. 5.300(c) a provision of
current Sec. 3.250(b)(2) that limits VA's consideration of the
expenses a parent incurs for the support of a relative whom the parent
is under a legal or moral obligation to support to expenses of a
relative ``in the ascending as well as
[[Page 53759]]
descending class'', which we construe to mean relatives in a parent's
direct line. (``Ascendant'' means ``[o]ne who precedes in lineage, such
as a parent or grandparent.'' Black's Law Dictionary 121 (8th ed.
2004). ``Descendant'' means ``[o]ne who follows in lineage, in direct
(not collateral) descent from a person. Examples are children and
grandchildren.'' Id. at 476.) This current provision excludes, for
example, the expenses of an orphaned niece or nephew who is still a
minor for whom the parent is providing support.
This restriction to the ascending and descending class is not
required by statute. The authorizing statute, 38 U.S.C. 102, merely
states that ``[d]ependency of a parent * * * shall be determined in
accordance with regulations prescribed by the Secretary [of Veterans
Affairs].'' 38 U.S.C. 102(a). We do not believe that the restriction is
necessary, particularly because the qualifying expenses are already
limited to expenses of persons who are relatives whom the parent has a
moral or legal obligation of support. We also note that there is no
such restriction with respect to expense deductions used in calculating
VA's largest income-based program, Improved Pension. See, e.g., current
Sec. 3.272(g)(1)(i); proposed Sec. 5.413(b)(2)(i), 72 FR at 54776.
VA's rules for determining income for purposes of administering its
income-based programs should be consistent unless the law requires
otherwise.
Current Sec. 3.660(a)(1) provides, in part, that ``in compensation
claims subject to Sec. 3.250(a)(2), notice must be furnished of any
material increase in corpus of the estate or net worth.'' Current Sec.
3.250(a)(2) provides that VA may consider the factual dependency of a
veteran's parents. Paragraph (d) of proposed Sec. 5.300 would
substitute ``report'' for ``notice'' because notifications are
typically provided by VA and not by claimants. In addition, proposed
Sec. 5.300(d) would clarify that the report regarding an increase in
the parent's income or net worth must be furnished by the veteran who
is receiving additional disability compensation based on a dependent
parent, and that failure to report such an increase may result in
creation of indebtedness based on an overpayment subject to recovery by
VA. Consistent with current Sec. 3.660(a)(1), this reporting
requirement would only apply when a parent's increased income exceeds
the amounts specified in proposed Sec. 5.300(a)(1).
Section 5.302 General Income Rules--Parent's Dependency
Current Sec. Sec. 3.261 and 3.262 provide the regulatory framework
VA uses to calculate income for purposes of determining eligibility for
Section 306 Pension, parents' DIC, and additional disability
compensation for the dependency of a parent. Current Sec. Sec. 3.261
and 3.262 are lengthy and complex because those sections combine
provisions concerning the evaluation of income in three very different
contexts. As a result, Sec. Sec. 3.261 and 3.262 can be difficult to
understand and use. Therefore, in part 5 we propose to divide the
subject matter addressed by current Sec. Sec. 3.261 and 3.262 into
separate regulations, each dealing with the evaluation of income for a
specific purpose. This division is also consistent with the benefit-
specific organizational plan of proposed new part 5. Proposed
Sec. Sec. 5.302 through 5.304 would pertain only to calculating income
for the purpose of determining a veteran's entitlement to additional
disability compensation for parent's dependency. Income regulations for
pension and parent's DIC are addressed in NPRMs dealing with those
subjects.
Because there are numerous similarities between the way income is
calculated for determining a parent's dependency and for determining
eligibility for parents' DIC, and to promote as much consistency as the
subject matter allows, we have based the structure of proposed
Sec. Sec. 5.302 through 5.304 on their proposed counterparts for
income calculations for purposes of parents' DIC eligibility. See Sec.
5.531, ``General income rules''; Sec. 5.532, ``Deductions from
income''; and Sec. 5.533, ``Exclusions from income'', 70 FR at 61326.
The text of proposed Sec. Sec. 5.302 through 5.304 would also reflect
the differences in the way that income is calculated for parent's
dependency purposes.
Proposed Sec. 5.302(a) would state the basic rule that VA must
count all payments of any kind from any source in determining income.
Beginning with this basic rule would simplify the proposed regulation
because the all-inclusive nature of the rule would eliminate any need
to catalog types of countable income. All income that a parent receives
is income for parent's dependency purposes unless there is a specific
exclusion. For example, with this beginning point, provisions such as
the first sentence of current Sec. 3.262(j)(2) (providing that, with
respect to life insurance, ``the full amount of payments is considered
income as received'') become redundant and need not be carried forward.
Because VA must count all payments, it is necessary to know what VA
includes in, and excludes from, the term ``payments''. To eliminate
redundancy, we would cross-reference proposed Sec. 5.370,
``Definitions for Improved Pension'', 72 FR at 54776, which defines
``payments''. This definition would apply throughout part 5.
Proposed Sec. 5.302(b) would provide that, if a parent is married,
``income'' would be the combined income of the parent and the parent's
spouse, except where the marriage has been terminated or the parent is
separated from his or her spouse. We would also state that ``[i]ncome
is combined whether the parent's spouse is the veteran's other parent
or the veteran's stepparent'' and that ``[t]he income of the parent's
spouse will be subject to the same rules that are applicable to
determining the income of the veteran's parent.'' This would be a
clearer statement of the principle in the introduction to current Sec.
3.262(b), which provides that ``[i]ncome of the spouse will be
determined under the rules applicable to income of the claimant.'' The
income rules in proposed Sec. 5.302 would be applicable to a parent.
The spouse of a veteran's parent will always be either the veteran's
other parent (in which case the rules would expressly apply) or the
veteran's stepparent. In the context of additional disability
compensation to a veteran for parent's dependency, the veteran, and not
the parent, is the claimant.
Current Sec. 3.250(b)(2) provides that ``[i]n determining whether
other members of the family under legal age are factors in necessary
expenses of the mother or father, consideration will be given to any
income from business or property (including trusts) actually available,
directly or indirectly, to the mother or father for the support of the
minor but not to the corpus of the estate or the income of the minor
which is not so available.'' Proposed Sec. 5.302(c), based on
Sec. Sec. 3.250(b)(2) and 3.261(a)(3), would refer to the veteran's
``parent'' rather than to the veteran's ``mother or father'' to make it
clear that these regulatory provisions refer to the veteran's parent
whose dependency is at issue, rather than to the mother or father of
the minor. Under the applicable definition of ``family member'' (see
proposed Sec. 5.300(c)) the minor family member would not necessarily
be another child of the veteran's parent. Also, to be consistent with
the new proposed definition of ``family member'', we propose to refer
to a family member who is under ``21 years of age'' rather than to
[[Page 53760]]
a family member who is under ``legal age'', as stated in current
3.250(b)(2).
Proposed Sec. 5.302(d), based on current Sec. 3.262(k)(2), would
state the rule that income from a parent's property is income of the
parent. Property ownership is an important indicator of the right to
income from that property, but it is not always controlling. To
eliminate redundancy, we would cross-reference Sec. 5.410(f), 72 FR at
54776, for how VA determines ownership of property. This provision
would apply throughout part 5.
Proposed Sec. 5.302(e) would state the rules for calculating the
amount of profit from the sale of real or personal property. Current
Sec. 3.262(k)(3) provides that the basis for calculating net profit on
the sale of such property is the value of the property at the date of
entitlement to benefits (in this case, the veteran's entitlement to
additional disability compensation based on parent's dependency), if
the property was owned prior to the date of entitlement. However, it
does not state the basis for calculating the net profit on the sale of
property acquired after the date of entitlement. We propose to adopt
the commonly used principle that the value to be deducted from the
sales price to determine profit in such circumstances is the cost of
the property, including improvements. This rule would be one with which
many claimants should be familiar. It would be, for example, similar to
the rule used in determining profit for Federal income tax purposes.
Section 5.303 Deductions From Income--Parent's Dependency
Even though all income is counted except where there is specific
authority to exclude it, VA permits deductions from income in some
instances. That is, the amount of income ultimately counted is the
difference between income and certain deductible expenses directly
associated with that income. Proposed Sec. 5.303 would list permitted
deductions.
Proposed Sec. 5.303(b), concerning the deductibility of expenses
associated with recoveries for death and disability, would be based on
rules found in current Sec. Sec. 3.261(a)(24) and 3.262(i)(1) and
(j)(4). Current Sec. 3.262(i)(1) refers to ``the Bureau of Employees'
Compensation, Department of Labor (of the United States).'' The Bureau
of Employees' Compensation was abolished in 1974. See 20 CFR 1.5. Its
functions are now carried out by the Office of Workers' Compensation
Programs of the U.S. Department of Labor. See 20 CFR 1.6(b). This
change would be reflected in proposed Sec. 5.303(b)(2).
Section 5.304 Exclusions From Income--Parent's Dependency
Proposed Sec. 5.304 would list income that VA does not count when
calculating a parent's income. Proposed paragraph (c) would be based on
current Sec. 3.261(a)(12), which excludes the ``[s]ix-months' death
gratuity''. However, we propose to change the description to ``[d]eath
gratuity payments by the Secretary concerned under 10 U.S.C. 1475
through 1480.'' The phrase ``six-months' death gratuity'' is obsolete.
While the death gratuity consisted of six-months' pay when originally
enacted (see Pub. L. 66-99, Sec. 1, 41 Stat. 367 (1919)), that is no
longer the case. Over the years, these death gratuity payments have
evolved into a fixed sum, rather than a variable amount equal to six-
months' pay. See 10 U.S.C. 1478. As covered in proposed paragraph (c),
this exclusion would extend to death gratuity payments in lieu of
payments under 10 U.S.C. 1478 made to certain survivors of ``Persian
Gulf conflict'' veterans as authorized by the Persian Gulf Conflict
Supplemental Authorization and Personnel Benefits Act of 1991. See
Public Law 102-25, Sec. 307, 105 Stat. 82 (1991). Note that the phrase
``Secretary concerned'' is defined in proposed Sec. 5.1. See 71 FR at
16474.
Proposed Sec. 5.304 would combine rules from current Sec. 3.262
that permit a parent to exclude from his or her income the value of
certain income received by that parent. One of these is found in
current Sec. 3.262(f), which requires VA to treat ``[b]enefits
received under noncontributory programs, such as old age assistance,
aid to dependent children, and supplemental security income'' as
charitable donations. We propose to remove the references to the Old
Age Assistance program and the Aid to Dependent Children program
because these programs no longer exist. The Old Age Assistance program
was phased out and totally replaced by the Supplemental Security Income
program in 1972 and the Aid to Dependent Children program became a
federal block grant known as Temporary Assistance to Needy Families in
1996.
There are a number of other Federal statutes that exempt specific
kinds of income from consideration in determining either eligibility
for all Federal income-based programs, or eligibility for all of VA's
income-based benefit programs. Because those exclusions affect more
than a parent's dependency, they will be addressed in Sec. 5.412, 72
FR at 54776, ``Income exclusions for calculating countable annual
income''. Proposed Sec. 5.304 would list only those income exclusions
that are unique to a parent's dependency allowance.
Current Sec. 3.261(a)(20) excludes VA benefit payments for World
War I adjusted compensation. We would remove this exclusion because
there is currently only one World War I veteran. We do not envision
receiving any new claims for this benefit.
Proposed Sec. 5.304(h), based on current Sec. 3.262(k)(4), would
provide an exclusion for net profit from the sale of the parent's
principal residence when that profit is used to purchase another
principal residence within specified time constraints. In drafting
proposed Sec. 5.304(h), we intentionally omitted the rule in current
Sec. 3.262(k)(4) that makes the exclusion available only when the net
profit is applied to the purchase of a new principal residence after
January 10, 1962. Inclusion of that effective date has been rendered
unnecessary due to the passage of time. This is particularly true in
view of the fact that, to qualify for this exclusion, the application
of the net profit from the sale of the old residence to the purchase of
a replacement residence must be reported to VA within 1 year after the
date it was so applied.
Current Sec. 3.261(a)(11) excludes ``mustering-out pay'' from
income for purposes of determining parental dependency. We propose to
omit this provision from Sec. 5.304. Mustering-out pay was repealed by
Public Law 89-50, 79 Stat. 173, in 1965.
We propose to omit an exclusion listed in current Sec.
3.261(a)(20) because it is now obsolete. That section excludes
``[s]ervicemember's indemnity'' from income for purposes of determining
parental dependency. The Servicemen's Indemnity Act of 1951, Public Law
82-23, 65 Stat. 33, authorized VA to pay indemnity in the form of
$10,000 automatic life insurance coverage to the survivors of members
of the Armed Forces who died in service. However, the Act authorizing
this benefit was repealed in 1956. See Public Law 84-881, Sec. 502(9),
70 Stat. 886 (1956).
Disability Compensation Effective Dates
This section would begin with a note cross-referencing effective
date rules for temporary total disability compensation ratings under
current 38 CFR 4.29 based upon a veteran's hospitalization for
treatment or observation of a service-connected disability or under
current 38 CFR 4.30 based on convalescence. We propose not to include,
in part 5, provisions similar to those in current Sec. Sec. 3.401(h)
and 3.501(m) because current Sec. Sec. 4.29 and 4.30 contain effective
date rules that apply in
[[Page 53761]]
situations covered by Sec. Sec. 3.401(h) and 3.501(m).
Section 5.311 Effective Dates--Award of Disability Compensation
Proposed Sec. 5.311, based on current Sec. 3.400(b)(2), would
provide the effective date rules for an award of disability
compensation. We propose to omit the distinction in current Sec.
3.400(b)(2)(i) and (ii) between awards of compensation based on direct
service connection and those based on presumptive service connection.
In proposed Sec. 5.1, we would define ``direct service connection'' as
distinguishable from service connection based on a legal presumption.
71 FR at 16473. This distinction would be unnecessary in Sec. 5.311
because the effective date rules in current Sec. 3.400(b)(2)(i) and
(ii) are the same. By combining the two rules we would eliminate
redundancy. No substantive change would be intended.
Proposed Sec. 5.311(a) would implement 38 U.S.C. 5110(b)(1), which
permits VA to make retroactive payments of disability compensation when
a veteran files a benefit claim within 1 year after separation from
service. There are several differences between proposed Sec. 5.311(a)
and its current part 3 equivalent, Sec. 3.400(b)(2).
Current Sec. 3.400(b)(2)(i) states that the effective date of
disability compensation is the ``[d]ay following separation from active
service or date entitlement arose if claim is received within 1 year
after separation after service; otherwise, date of receipt of claim, or
date entitlement arose, whichever is later.'' We propose to replace the
word ``separation'' with the statutory phrase ``discharge or release''.
We would define the term ``discharge or release'' in proposed Sec.
5.1. 71 FR at 16464. We also propose to replace ``active service'' with
``active military service.'' In proposed Sec. 5.1, we would define
``active military service'' to mean the same as the statutory term
``active military, naval, or air service''. 71 FR at 16473.
In paragraph (b) of Sec. 5.311, we propose to restate the rule
contained in the phrase ``otherwise, date of receipt of claim, or date
entitlement arose, whichever is later'' in current Sec. 3.400(b)(2)(i)
and (ii). Rather than repeat this language, we propose to simply
reference the general part 5 effective date rule found at Sec.
5.150(a). 72 FR 28,770, 28,876 (May 22, 2007).
Section 5.312 Effective Dates--Increased Disability Compensation
Proposed Sec. 5.312, based on current Sec. 3.400(o)(2), would
state the effective date rules for an award of increased disability
compensation. It would implement 38 U.S.C. 5110(a) and (b)(2) as they
pertain to an award of increased disability compensation. An increase
in disability compensation most often results from an increase in a
disability rating governed by the Schedule for Rating Disabilities in
part 4 of this chapter. Section 5110(b)(2) and current Sec.
3.400(o)(2) also govern the effective date of an award of or increase
in special monthly compensation (SMC) to a veteran with a current
disability compensation award, even though the Schedule for Rating
Disabilities does not govern SMC; no other statute or regulation
provides an effective date of an award of SMC to a veteran with a
current compensation award. We would title the section to refer to an
increase in disability compensation, consistent with 38 U.S.C.
5110(b)(2) and current Sec. 3.400(o)(2), and draft the regulation to
apply to an award of increased disability compensation, rather than to
an increase in a disability rating. This would not be a change in scope
of the current regulation or otherwise a substantive change.
Proposed Sec. 5.312(a) would be new. It would inform readers of
the type of awards that VA considers to be subject to 38 U.S.C.
5110(b)(2): A higher disability rating under subpart B of the Schedule
for Rating Disabilities in part 4 of this chapter; a higher disability
rating under the extra-schedular provision in evaluation under Sec.
5.280(b); a higher disability rating under Sec. 4.16 of this chapter,
``Total disability ratings for compensation based on unemployability of
the individual''; and an award or higher rate of special monthly
compensation.
The note after proposed Sec. 5.312(a) would explain that this
section does not establish the effective date of an award of secondary
service connection under Sec. 5.246 or Sec. 5.247. This would be
consistent with the holding of the CAVC in Ross v. Peake, 21 Vet. App.
528, 532 (2008), that ``an award of `increased compensation' within the
meaning of section 5110(b)(2) does not encompass an award of secondary
service connection because, by definition, secondary service connection
requires the incurrence of an additional disability.'' We would apply
the reasoning in Ross to claims for secondary service connection under
Sec. 5.246 and Sec. 5.247.
Proposed Sec. 5.312(b) would restate in plain language the current
effective-date rule for an award of increased disability compensation.
Current Sec. 3.400(o)(2) provides for an effective date on the
``[e]arliest date as of which it is factually ascertainable that an
increase in disability had occurred if claim is received within 1 year
from such date''. This provision is based on 38 U.S.C. 5110(b)(2),
which states that ``[t]he effective date of an award of increased
compensation shall be the earliest date as of which it is ascertainable
that an increase in disability had occurred, if application is received
within one year from such date.'' Rather than use the term
``ascertainable'', we would simply state in proposed Sec. 5.312(b)(1)
that the effective date will be ``the date that the evidence warrants a
higher disability rating, or an award or higher rate of special monthly
compensation, if VA received a claim for increased disability
compensation within 1 year after that date.'' This would be consistent
with current VA practice and the authorizing statute. This would not be
a substantive change.
Section 5.313 Effective Dates--Discontinuance of a Total Disability
Rating Based on Individual Unemployability
Proposed Sec. 5.313 would be based on current Sec. 3.501(e)(2)
and (f). Section 3.501(e)(2) states an effective date rule for
discontinuance of a TDIU rating if a veteran regains employability.
However, it does not provide guidance on what rating to assign in place
of the TDIU rating. Section 3.501(f) provides an effective date rule
for discontinuance of TDIU if a veteran fails to return an employment
questionnaire to VA. It provides that the award will be reduced to the
``amount payable for the schedular evaluation shown in the current
rating as of the day following the date of last payment.'' It has been
long-standing VA practice to also apply the schedular evaluation to
cases where a veteran regains employability under Sec. 3.501(e)(2). We
propose to codify in Sec. 5.313(b) this practice, which produces a
fair result for veterans and is simple to administer. We also propose
to replace the term ``current rating'' in Sec. 3.501(f) with
``existing schedular rating.'' The term ``current rating'' could be
confusing because the most ``current'' rating would be for TDIU. Using
``existing schedular rating'' would clarify that we mean the rating
that was in effect when TDIU was awarded.
We are proposing to rephrase effective date rules concerning
reductions and discontinuances of VA benefits throughout part 5.
Stating the first day VA will pay the new reduced rate or discontinue
making payment, rather than stating the last day of the old rate or the
last day of payment, would make these effective-date provisions easier
to apply. Therefore, proposed paragraphs (b) and (c) would state that
the reduction ``will be effective'' as specified
[[Page 53762]]
in each paragraph. Similar proposed changes would also appear in
subsequent reduction and discontinuance effective date rules in the
NPRM. VA intends no substantive change by this new language.
Section 5.314 Effective Dates--Discontinuance of Additional Disability
Compensation Based on Parental Dependency
Proposed Sec. 5.314 would be based on rules in current Sec. Sec.
3.500(g), (h), and (n) and 3.660(a)(2), which govern the effective
dates of discontinuance of awards of additional disability compensation
to a veteran with a dependent parent when parental dependency ends.
Current Sec. 3.500(h) refers the reader to various statutes and other
regulations, some of which pertain to disability compensation rules and
some of which refer to rules concerning other benefits where parental
dependency is relevant, such as death compensation for a parent.
Proposed Sec. 5.314 would only include information from the sources
cross-referenced in current Sec. 3.500(h) that relate to the
discontinuance of additional disability compensation to a veteran when
the financial dependency of a parent ends.
Current Sec. Sec. 3.500(g)(2), (h), (n)(2), and 3.660(a)(2)
contain rules that apply to discontinuance of additional disability
compensation based on parental dependency that are related to events
(marriage, divorce, annulment, and death) that occurred prior to
October 1, 1982. We propose to omit these provisions. With the passage
of time, they have become unnecessary. It is unlikely that VA would now
retroactively discontinue additional disability compensation because of
events involving a veteran's parent that occurred more than 28 years
ago.
Proposed Sec. 5.314 would be a counterpart to only the third
sentence of Sec. 3.660(a)(2) that pertains to discontinuance of
additional disability compensation based on parental dependency.
Current Sec. 3.660(a)(2) addresses reduction or discontinuance of
multiple VA benefits. Some, such as pension, are susceptible to
reduction of the award of benefits because of increases in income or
other financial events. The additional disability compensation based on
parental dependency is not one of them. It is an all-or-nothing
benefit. If the parent ceases to meet the criteria for the veteran's
entitlement, VA discontinues the additional disability compensation.
Consequently, proposed Sec. 5.314 would refer only to discontinuance
of the additional disability compensation.
Proposed paragraph (b) would clarify that, if a veteran's parent
ceases to be dependent because the parent's economic status has
improved, the effective date of the discontinuance of the additional
disability compensation depends on whether the improvement is due to an
increase in income or an increase in net worth. In the former case, the
effective date would be the first day of the month after which the
change occurred. In the latter case, the effective date would be the
first day of the year after which the change occurred. This result is
required by 38 U.S.C. 5112(b)(4).
Section 5.315 Effective Dates--Additional Disability Compensation Based
on Decrease in the Net Worth of a Dependent Parent
Proposed Sec. 5.315, based on current Sec. 3.660(d), would
provide the effective date rule that would apply if entitlement to
additional disability compensation based on the dependency of a parent
is reestablished after VA had previously denied or discontinued the
additional disability compensation because of the parent's net worth.
VA proposes to separate the new section into two paragraphs--an
introductory paragraph, which explains when the rule would apply, and a
paragraph explaining the rule itself. Consistent with other proposed
regulations in this NPRM, VA proposes to use the term ``net worth''
instead of ``corpus of estate''.
Endnote Regarding Amendatory Language
We intend to ultimately remove part 3 entirely, but we are not
including amendatory language to accomplish that at this time. VA will
provide public notice before removing part 3.
Paperwork Reduction Act
This document contains no provisions constituting a new collection
of information under the provisions of the Paperwork Reduction Act of
1995 (44 U.S.C. 3501-3521).
Regulatory Flexibility Act
The Secretary hereby certifies that this proposed rule 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 rule would not affect any small entities.
Therefore, pursuant to 5 U.S.C. 605(b), this proposed rule would be
exempt from the initial and final regulatory flexibility analysis
requirements of sections 603 and 604.
Executive Order 12866
Executive Order 12866 directs agencies to assess all costs and
benefits of available regulatory alternatives and, when regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety,
and other advantages; distributive impacts; and equity). The Executive
Order classifies a ``significant regulatory action,'' requiring review
by the Office of Management and Budget (OMB) 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.
VA has examined the economic, interagency, budgetary, legal, and
policy implications of this proposed rule and has determined that it is
not a significant regulatory action under the Executive Order because
it will not result in a rule that 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.
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 an expenditure by
State, local, or tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any 1 year. This proposed rule would have no such effect
on State, local, or tribal governments, or on the private sector.
Catalog of Federal Domestic Assistance Numbers and Titles
The catalog of Federal Domestic Assistance program numbers for this
proposal are: 64.100, Automobiles and Adaptive Equipment for Certain
Disabled Veterans and Members of the Armed Forces; 64.101, Burial
Expenses
[[Page 53763]]
Allowance for Veterans; 64.102, Compensation for Service-Connected
Deaths for Veterans' Dependents; 64.104, Pension for Non-Service-
Connected Disability for Veterans; 64.105, Pension to Veterans
Surviving Spouses, and Children; 64.106, Specially Adapted Housing for
Disabled Veterans; 64.109, Veterans Compensation for Service-Connected
Disability; 64.110, Veterans Dependency and Indemnity Compensation for
Service-Connected Death; 64.115, Veterans Information and Assistance;
and 64.127, Monthly Allowance for Children of Vietnam Veterans Born
with Spina Bifida.
Signing Authority
The Secretary of Veterans Affairs, or designee, approved this
document and authorized the undersigned to sign and submit the document
to the Office of the Federal Register for publication electronically as
an official document of the Department of Veterans Affairs. John R.
Gingrich, Chief of Staff, Department of Veterans Affairs, approved this
document on August 12, 2010, for publication.
List of Subjects in 38 CFR Part 5
Administrative practice and procedure, Claims, Disability benefits,
Health care, Pensions, Radioactive materials, Veterans, Vietnam.
Dated: August 19, 2010.
William F. Russo,
Director, Regulations Management, Department of Veterans Affairs.
For the reasons set forth in the preamble, VA proposes to amend 38
CFR part 5 (as proposed to be added at 69 FR 4832, January 30, 2004,
and as amended by adding subpart E at 69 FR 44624, July 27, 2004) as
follows:
PART 5--COMPENSATION, PENSION, BURIAL, AND RELATED BENEFITS
1. The authority citation for part 5, subpart E, continues to read
as follows:
Authority: 38 U.S.C. 501(a) and as noted in specific sections.
2. Sections 5.240 through 5.251 and their undesignated center
heading are added to subpart E and Sec. Sec. 5.252 through 5.259 are
reserved to read as follows:
Subpart E--Claims for Service Connection and Disability Compensation
Service-Connected and Other Disability Compensation
Sec.
5.240 Disability compensation.
5.241 Service-connected disability.
5.242 General principles of service connection.
5.243 Establishing service connection.
5.244 Presumption of sound condition.
5.245 Service connection based on aggravation of preservice injury
or disease.
5.246 Secondary service connection--disability that is proximately
caused by service-connected disability.
5.247 Secondary service connection--nonservice-connected disability
aggravated by service-connected disability.
5.248 Service connection for cardiovascular disease secondary to
service-connected lower extremity amputation.
5.249 Special service connection rules for combat-related injury or
disease.
5.250 Service connection for posttraumatic stress disorder.
5.251 Current disabilities for which VA cannot grant service
connection.
5.252-5.259 [Reserved]
Subpart E--Claims for Service Connection and Disability
Compensation
Service-Connected and Other Disability Compensation
Sec. 5.240 Disability compensation.
(a) Definition. ``Disability compensation'' means a monthly payment
VA makes to a veteran for a service-connected disability, as described
in Sec. 5.241, or for a disability compensated as if it were service
connected, under Sec. 5.350, ``Benefits under 38 U.S.C. 1151(a) for
additional disability or death due to hospital care, medical or
surgical treatment, examination, training and rehabilitation services,
or compensated work therapy program.''
(b) Additional disability compensation based on having dependents.
Additional disability compensation is payable to a veteran who has a
spouse, child, or dependent parent if the veteran is entitled to
disability compensation based on a single or a combined disability
rating of 30 percent or more. The additional disability compensation
authorized by 38 U.S.C. 1115 is payable in addition to monthly
disability compensation payable under 38 U.S.C. 1114.
(Authority: 38 U.S.C. 101(13), 1110, 1114, 1115, 1131, 1135, 1151)
Sec. 5.241 Service-connected disability.
A ``service-connected disability'' is a current disability as to
which any of the following is true:
(a) The disability was caused by an injury or disease incurred, or
presumed to have been incurred, in the line of duty during active
military service. See Sec. Sec. 5.260 through 5.269 (concerning
presumptions of service connection).
(b) The disability was caused by a preservice injury or disease
aggravated, or presumed to have been aggravated, in the line of duty
during active military service. See Sec. 5.245, ``Service connection
based on aggravation of preservice injury or disease.''
(c) The disability is secondary to a service-connected disability,
pursuant to Sec. Sec. 5.246-5.248 (governing awards of secondary
service connection).
(Authority: 38 U.S.C. 1110, 1112, 1116, 1117, 1118, 1131, 1133,
1137)
Sec. 5.242 General principles of service connection.
When a veteran seeks service connection:
(a) VA will give due consideration to any evidence of record
concerning the places, types, and circumstances of the veteran's
service as shown by the veteran's service record, the official history
of each organization in which the veteran served, the veteran's medical
records, and all pertinent medical and lay evidence; and
(b) VA will not consider a statement that a veteran signed during
service that:
(1) Pertains to the origin, incurrence, or aggravation of an injury
or disease; and
(2) Was against the veteran's interest at the time he or she signed
it.
(Authority: 10 U.S.C. 1219; 38 U.S.C. 1154(a))
Sec. 5.243 Establishing service connection.
(a) Requirements. Except as provided in Sec. Sec. 5.246,
``Secondary service connection--disability that is proximately caused
by service-connected disability'', and 5.247, ``Secondary service
connection--nonservice-connected disability aggravated by service-
connected disability'', and paragraph (c) of this section, proof of the
following elements is required to establish service connection:
(1) A current disability;
(2) Incurrence or aggravation of an injury or disease in active
military service; and
(3) A causal link between the injury or disease incurred in, or
aggravated by, active military service and the current disability.
Note 1 to paragraph (a): Permanent disability shown in service.
VA will consider all three elements of paragraph (a) of this section
proven if service records establish that an injury or disease
incurred in or aggravated by active military service produced a
disability that is clearly permanent by its nature, such as the
amputation of a limb or the anatomical loss of an organ.
Note 2 to paragraph (a): Chronic disease or chronic residual of
an injury in temporary remission. VA will not deny service
connection for lack of a current disability
[[Page 53764]]
solely because a chronic disease, or a chronic residual of an
injury, enters temporary remission. Examples of chronic diseases and
chronic residuals of injury subject to temporary remission include
chronic tinnitus, malaria, mental illness, skin disease, and
intervertebral disc syndrome.
(b) Time of diagnosis is not necessarily controlling. Proof of
incurrence of a disease during active military service does not require
diagnosis during service if the evidence otherwise establishes that the
disease was incurred in service.
(c) Chronic residuals of injuries and chronic diseases--(1) General
rule. VA will grant service connection for a current disability not
clearly due to an intercurrent cause if:
(i) The current disability is caused by a chronic disease and
competent evidence establishes that the veteran had the same chronic
disease in service or within an applicable presumptive period; or
(ii) The veteran had an injury in service and currently has a
disability due to chronic residuals of the same injury.
(2) Proof that a disease or residual of an injury is chronic. For
purposes of this paragraph (c), VA will consider the following to be
chronic:
(i) A chronic disease listed in Sec. 5.261(d);
(ii) A disease shown to be chronic by competent evidence; or
(iii) A residual of an injury (such as scarring or nerve, muscle,
skeletal, or joint impairment) shown to be chronic by competent
evidence. (See also paragraph (d) of this section on establishing
chronicity through evidence of continuity of signs or symptoms).
Note to paragraph (c): Proof that a disease was chronic in
service requires a combination of manifestations in service
sufficient to identify the disease entity, and sufficient
observation to establish chronicity at the time, as distinguished
from merely isolated findings or a diagnosis in service including
the word ``chronic.'' See also Sec. 5.260(c), ``Rebutting a
presumption of service connection set forth in Sec. Sec. 5.261
through 5.268.'' Isolated findings in service, such as joint pain,
any abnormality of heart action or heart sounds, any urinary
findings of casts, or any cough, would not alone establish the
presence in service of a chronic disease, such as arthritis, disease
of the heart, nephritis, or pulmonary disease, first shown as a
clear-cut clinical entity at some later date.
(d) Continuity of signs or symptoms. Where signs or symptoms noted
in service, or during an applicable presumptive period, are not
considered a chronic disease or residual of an injury under paragraph
(c)(2) of this section, service connection is established when all of
the following are shown by competent evidence:
(1) The veteran had signs or symptoms of an injury or disease
during active military service or during an applicable presumptive
period for a disease;
(2) The signs or symptoms continued from the time of discharge or
release from active military service or from the end of the applicable
presumptive period, until the present; and
(3) The signs or symptoms currently demonstrated are signs or
symptoms of an injury or disease, or the residuals of an injury or
disease, to which paragraph (d)(1) of this section refers.
(Authority: 38 U.S.C. 101(16), 501, 1110, 1131)
Sec. 5.244 Presumption of sound condition.
(a) Presumption of sound condition. VA will presume that a veteran
was in sound condition upon entry into active military service, which
means that the veteran was free from injury or disease except as noted
in the report of a medical examination conducted for entry into active
military service.
(b) Report of entry examination not a condition for application of
the presumption. The presumption of sound condition applies even if:
(1) The veteran did not have a medical examination for entry into
active military service; or
(2) There is no record of the examination.
(c) Medical history recorded in entry examination reports--(1)
Medical histories. The presumption of sound condition applies if an
examiner recorded a history of injury or disease in an entry
examination report, but the examiner did not report any contemporaneous
clinical findings related to such injury or disease. VA may consider
the notation of history together with other evidence in determining
whether the presumption of sound condition is rebutted under paragraph
(d) of this section.
(2) Medical examination reports. The presumption of sound condition
is rebuttable even if an entry medical examination shows that the
examiner tested specifically for a certain injury or disease and did
not find that injury or disease, if other evidence of record is
sufficient to overcome the presumption.
(d) Rebutting the presumption.
(1) For veterans with any wartime service and for veterans with
peacetime service after December 31, 1946, VA can rebut the presumption
only with clear and unmistakable evidence that the injury or disease
resulting in the disability for which the veteran claims service
connection both:
(i) Preexisted service; and
(ii) Was not aggravated by service, which means that
(A) During service the disability resulting from the preexisting
injury or disease did not increase in severity or
(B) Any such increase was due to the natural progress of a disease.
(2) To determine whether there was an increase in the severity of
disability during service (or during any applicable presumptive period)
resulting from a preexisting injury or disease, see Sec. 5.245(b).
(3) If there was an increase in the severity of disability during
service (or during any applicable presumptive period) resulting from a
preexisting injury or disease, to determine whether the increase was
due to the natural progress of a disease, see Sec. 5.245(c).
(Authority: 38 U.S.C. 1110, 1111, 1131, 1137)
Sec. 5.245 Service connection based on aggravation of preservice
injury or disease.
(a) Presumption of aggravation. When an injury or disease was noted
in the report of examination for entry into active military service, VA
will presume that active military service aggravated a preexisting
injury or disease if there was an increase in disability resulting from
the injury or disease during service (or during any applicable
presumptive period).
(b) Determining whether disability increased during service--(1)
Increase in severity. For purposes of this section, increase in
disability during active military service means the disability
resulting from the preexisting injury or disease permanently became
more severe during service (or during any applicable presumptive
period) than it was before active military service.
(2) Temporary flare-ups. Except as provided in paragraph (b)(4) of
this section, temporary or intermittent flare-ups of signs or symptoms
of a preexisting injury or disease do not constitute aggravation in
service unless the underlying condition worsened, resulting in
increased disability.
(3) Effects of medical or surgical treatment. The usual effects of
medical or surgical treatment in service that ameliorates a preexisting
injury or disease, such as postoperative scars, or absent or poorly
functioning parts or organs, are not an increase in the severity of the
underlying condition and they will not be service connected unless the
preexisting injury or disease was otherwise aggravated by service.
(4) Combat or prisoner-of-war service. The development of signs or
symptoms, whether temporary or permanent, of a
[[Page 53765]]
preexisting injury or disease during or proximately following combat
with the enemy, as defined in Sec. 5.249(a)(2), or following status as
a prisoner of war will establish aggravation of the disability
resulting from that preexisting injury or disease.
(c) Rebutting the presumption--natural progress of a disease. The
presumption of aggravation is rebutted if VA specifically finds by
clear and unmistakable evidence that the increase in the severity of
disability during service (or during an applicable presumptive period)
was normal for the disease, that is, active military service did not
contribute to the increase.
(Authority: 38 U.S.C. 1153, 1154)
Sec. 5.246 Secondary service connection--disability that is
proximately caused by service-connected disability.
Except as provided in Sec. 5.365(a), VA will grant service
connection for a disability that is proximately caused by a service-
connected disability.
(Authority: 38 U.S.C. 501(a), 1110, 1131)
Sec. 5.247 Secondary service connection--nonservice-connected
disability aggravated by service-connected disability.
VA will grant service connection for any increase in severity of a
nonservice-connected disability if the increase was proximately caused
by a service-connected disability, and the increase was not due to the
natural progress of a nonservice-connected disease. However, VA cannot
grant service connection under this section without medical evidence
establishing the severity of the nonservice-connected disability before
or contemporaneous with the increase in severity due to the service-
connected disability. The agency of original jurisdiction (AOJ) will
use the Schedule for Rating Disabilities in part 4 of this chapter to
rate the severity level of the nonservice-connected disability prior to
aggravation, any increase in severity due to the natural progress of
the disease, and the current severity level of the disability. The AOJ
will then determine the amount of aggravation by subtracting the rating
prior to aggravation and any increase in severity due to the natural
progress of the disease from the current severity level. The result
will be the increase proximately caused by a service-connected
disability. VA will grant service connection only for that increase.
(Authority: 38 U.S.C. 501(a), 1110, 1131)
Sec. 5.248 Service connection for cardiovascular disease secondary to
service-connected lower extremity amputation.
VA will grant secondary service connection for ischemic heart
disease or other cardiovascular disease that develops after a veteran
has a service-connected amputation of one lower extremity at or above
the knee or service-connected amputations of both lower extremities at
or above the ankles.
(Authority: 38 U.S.C. 501(a), 1110, 1131)
Sec. 5.249 Special service connection rules for combat-related injury
or disease.
(a) Combat-related incurrence or aggravation of injury or disease
shown by lay or other evidence. (1) VA will accept that an injury or
disease was incurred or aggravated in service if a veteran engaged in
combat with the enemy during a period of war, campaign, or expedition,
and there is satisfactory lay or other evidence that the injury or
disease was incurred in or was aggravated by such combat. Lay evidence
may include a veteran's description of an event, disease, or injury. VA
will accept such evidence as sufficient proof of incurrence or
aggravation in service of an injury or disease even though there is no
official record of the incurrence or aggravation. The evidence must be
consistent with the circumstances, conditions, or hardships of the
veteran's combat with the enemy. Incurrence or aggravation established
under this paragraph may be rebutted by clear and convincing evidence
to the contrary.
(2) ``Combat with the enemy'' means personal participation in an
actual fight or encounter with a military foe, hostile unit, or
instrument or weapon of war either:
(i) As a combatant; or
(ii) While performing a duty in support of combatants, such as
providing medical care to the wounded.
(b) Decorations as evidence of combat. When a veteran has received
any of the combat decorations listed below, VA will presume that the
veteran engaged in combat with the enemy, unless there is clear and
convincing evidence to the contrary:
(1) Air Force Cross
(2) Air Medal with ``V'' Device
(3) Army Commendation Medal with ``V'' Device
(4) Bronze Star Medal with ``V'' Device
(5) Combat Action Ribbon
(6) Combat Infantryman Badge
(7) Combat Medical Badge
(8) Combat Aircrew Insignia
(9) Distinguished Service Cross
(10) Joint Service Commendation Medal with ``V'' Device
(11) Medal of Honor
(12) Navy Commendation Medal with ``V'' Device
(13) Navy Cross
(14) Purple Heart
(15) Silver Star
(16) Combat Action Badge
(17) Any other form of decoration that the Secretary concerned may
designate for award exclusively to persons for actions performed while
engaged in combat with the enemy.
(Authority: 38 U.S.C. 501(a), 1154(b))
Cross References: Sec. 5.141 (evidence in claims of former
prisoners of war); Sec. 5.245(b)(4); Sec. 5.250(b)(2).
Sec. 5.250 Service connection for posttraumatic stress disorder.
(a) Elements of a claim for service connection for posttraumatic
stress disorder (PTSD). Service connection for PTSD requires:
(1) Medical evidence diagnosing PTSD in accordance with Sec.
4.125(a) of this chapter;
(2) A link, established by medical evidence, between current signs
or symptoms and an in-service stressor; and
(3) Except as provided in paragraphs (c), (d), and (e) of this
section, credible supporting evidence that the claimed in-service
stressor occurred. For purposes of this section, ``credible supporting
evidence'' means credible evidence from any source, other than the
claimant's statement, that corroborates the occurrence of the in-
service stressor.
(b) VA will not deny a claim without trying to verify the claimed
stressor. If the existence of the claimed stressor is not verified by
credible evidence, VA will seek verification from the appropriate
service department or other entity. The exception to this rule is when,
upon VA's request, the claimant fails to provide the information needed
by the appropriate service department or other entity to try to verify
the claimed stressor.
(c) Special rule for veterans diagnosed with PTSD during active
service. If the evidence establishes a diagnosis of PTSD during service
and the claimed stressor is related to that service, in the absence of
clear and convincing evidence to the contrary, and provided that the
claimed stressor is consistent with the circumstances, conditions, or
hardships of the veteran's active service, the veteran's lay testimony
alone may establish the occurrence of the claimed in-service stressor.
(d) Special rules for veterans who engaged in combat with the enemy
or who were prisoners of war. To determine if a stressor occurred
during
[[Page 53766]]
combat with the enemy or while a prisoner of war, VA will apply the
rules in Sec. 5.249 or Sec. 5.141, respectively.
(e)(1) Stressor confirmed by VA psychiatrist or psychologist. In
the absence of clear and convincing evidence to the contrary, and
provided the claimed in-service stressor is consistent with the places,
types, and circumstances of the veteran's service, the veteran's lay
testimony alone may establish the occurrence of the stressor if:
(i) The stressor is related to the veteran's fear of hostile
military or terrorist activity; and
(ii) A VA psychiatrist or psychologist, or a psychiatrist or
psychologist with whom VA has contracted, confirms that the stressor is
adequate to support a diagnosis of posttraumatic stress disorder and
that the veteran's symptoms are related to the claimed stressor.
(2) For purposes of this paragraph, ``fear of hostile military or
terrorist activity'' means:
(i) That a veteran experienced, witnessed, or was confronted with
an event or circumstance that involved actual or threatened death or
serious injury, or a threat to the physical integrity of the veteran or
others, such as:
(A) From an actual or potential improvised explosive device;
(B) Vehicle-imbedded explosive device;
(C) Incoming artillery, rocket, or mortar fire;
(D) Grenade;
(E) Small arms fire, including suspected sniper fire; or
(F) Attack upon friendly military aircraft, and
(ii) The veteran's response to the event or circumstance involved a
psychological or psycho-physiological state of fear, helplessness, or
horror.
(f) Special rules for establishing a stressor based on personal
assault. (1) VA will not deny a PTSD claim that is based on in-service
personal assault without:
(i) Advising the veteran that evidence from sources other than the
veteran's service records, including evidence described in paragraph
(c)(2) of this section, may constitute credible supporting evidence of
the stressor; and
(ii) Providing the veteran with an opportunity to furnish this type
of evidence or advise VA of potential sources of such evidence.
(2) Evidence that may establish a stressor based on in-service
personal assault includes, but is not limited to, the following:
(i) Records from law enforcement authorities, rape crisis centers,
mental health counseling centers, hospitals, or physicians;
(ii) Pregnancy tests or tests for sexually transmitted diseases;
(iii) Statements from family members, roommates, fellow
servicemembers, or clergy; or
(iv) Evidence of behavioral changes following the claimed assault
(which may be shown in any of the following sources), including: A
request for a transfer to another military duty assignment;
deterioration in work performance; substance abuse; episodes of
depression, panic attacks, or anxiety without an identifiable cause; or
unexplained economic or social behavior changes.
(3) VA may submit any evidence that it receives to an appropriate
medical or mental health professional for an opinion as to whether it
indicates that a personal assault occurred.
(Authority: 38 U.S.C. 501(a), 1110, 1131, 1154)
Sec. 5.251 Current disabilities for which VA cannot grant service
connection.
(a) General rule. VA will not grant service connection for the
following disabilities because they are not the result of an injury or
disease for purposes of service connection:
(1) Congenital or developmental defects (such as congenital or
developmental refractive error of the eye);
(2) Developmental personality disorders; or
(3) Developmental intellectual disability (mental retardation).
(b) Distinguishable disabilities. VA will grant service connection
for the following disabilities, which are scientifically
distinguishable from those listed in paragraph (a) of this section and
actually result from an injury or disease:
(1) Malignant or pernicious myopia;
(2) Personality change (as distinguished from personality disorder)
as part of, or proximately caused by, an organic mental disorder or a
service-connected general medical condition (such as psychomotor
epilepsy), or due to injury. See Sec. 5.246, ``Secondary service
connection--disability that is proximately caused by service-connected
disability''.
(3) Nondevelopmental intellectual disability as part of, or
proximately caused by, a service-connected disability. See Sec. 5.246,
``Secondary service connection--disability that is proximately caused
by service-connected disability.''
(c) Superimposed disabilities. Paragraph (a) of this section does
not preclude granting service connection for a disability that is
superimposed on a disability listed in paragraph (a).
(d) Hereditary diseases. Paragraph (a)(1) of this section does not
preclude granting service connection for disability due to an inherited
or familial disease (as distinguished from congenital or developmental
defects in paragraph (a)(1) of this section). See Sec. 5.261(f)
regarding presumptions related to certain inherited or familial
diseases.
(e) Diseases of allergic etiology. Paragraph (a) of this section
does not preclude granting service connection for disability due to
diseases of allergic etiology, including, but not limited to, bronchial
asthma and urticaria.
(Authority: 38 U.S.C. 501, 1110, 1131)
Sec. Sec. 5.252-5.259 [Reserved]
3. Sections 5.280 through 5.285 and their undesignated center
heading are added to subpart E and Sec. Sec. 5.286 through 5.299 are
reserved to read as follows:
Rating Service-Connected Disabilities
Sec.
5.280 General rating principles.
5.281 Multiple 0-percent service-connected disabilities.
5.282 Special consideration for paired organs and extremities.
5.283 Total and permanent total ratings and unemployability.
5.284 Total disability ratings for disability compensation purposes.
5.285 Continuance of total disability ratings.
5.286-5.299 [Reserved]
Rating Service-Connected Disabilities
Sec. 5.280 General rating principles.
(a) Use of rating schedule. VA will use the Schedule for Rating
Disabilities in part 4 of this chapter to rate the degree of
disabilities in claims for disability compensation and in eligibility
determinations. Instructions for using the schedule are in part 4.
(b) Extra-schedular ratings in unusual cases--(1) Disability
compensation. To accord justice to the exceptional case where the
Veterans Service Center (VSC) finds the schedular ratings to be
inadequate, the Under Secretary for Benefits or the Director of the
Compensation and Pension Service, upon VSC submission, is authorized to
approve on the basis of the criteria set forth in this paragraph (b) an
extra-schedular rating commensurate with the average impairment of
earning capacity due exclusively to the service-connected disability or
disabilities. The governing norm in these exceptional cases is a
finding that the application of the regular schedular standards is
impractical because the case presents an
[[Page 53767]]
exceptional or unusual disability picture with such related factors as:
(i) Marked interference with employment, or
(ii) Frequent periods of hospitalization.
(2) Effective date. The effective date of an extra-schedular
rating, either granting or increasing disability compensation, will be
in accordance with Sec. 5.311 in original and reopened claims and in
accordance with Sec. 5.312 in claims for increased benefits.
(c) Advisory opinions. The VSC may submit to the Director of the
Compensation and Pension Service for advisory opinion cases in which it
does not understand the application of the Schedule for Rating
Disabilities in part 4 of this chapter or in which the propriety of an
extra-schedular rating is questionable.
(Authority: 38 U.S.C. 501, 1155)
Sec. 5.281 Multiple 0-percent service-connected disabilities.
VA may assign a 10-percent combined rating to a veteran with two or
more permanent service-connected disabilities that are each rated as 0-
percent disabling under the Schedule for Rating Disabilities in part 4
of this chapter, if the combined effect of such disabilities interferes
with normal employability. VA cannot assign this 10-percent rating if
the veteran has any other compensable rating.
(Authority: 38 U.S.C. 501, 1155)
Sec. 5.282 Special consideration for paired organs and extremities.
(a) General rule. VA will pay disability compensation for the
combination of service-connected and nonservice-connected disabilities
involving paired organs and extremities described in paragraph (b) of
this section as if the nonservice-connected disability were service
connected, but VA will not pay compensation for the nonservice-
connected disability if the veteran's willful misconduct proximately
caused it.
(b) Qualifying combination of disabilities. Disability compensation
under paragraph (a) of this section is payable for the following
disability combinations:
(1) Service-connected impairment of vision in one eye and
nonservice-connected impairment of vision in the other eye if:
(i) The impairment of vision in each eye is rated at a visual
acuity of 20/200 or less; or
(ii) The peripheral field of vision for each eye is 20 degrees or
less.
(2) Service-connected anatomical loss or loss of use of one kidney
and nonservice-connected involvement of the other kidney.
(3) Service-connected hearing impairment in one ear compensable to
a degree of 10 percent or more and nonservice-connected hearing
impairment in the other ear that meets the provisions of Sec. 5.366 of
this chapter, ``Disability due to impaired hearing.''
(4) Service-connected anatomical loss or loss of use of one hand or
foot and nonservice-connected anatomical loss or loss of use of the
other hand or foot.
(5) Permanent service-connected disability of one lung rated as 50
percent or more disabling and nonservice-connected disability of the
other lung.
(c) Offset of judgment, settlement, or compromise--(1) Required
offset. If a veteran receives money or property of value in a judgment,
settlement, or compromise from a cause of action for a qualifying
nonservice-connected disability involving an organ or extremity
described in paragraph (b) of this section, VA will offset the value of
such judgment, settlement, or compromise against the increased
disability compensation payable under this section.
(2) Offset procedure. Beginning the first of the month after the
veteran receives the money or property as damages, VA will not pay the
increased disability compensation payable under this section until the
total amount of such increased compensation that would otherwise have
been payable equals the total amount of any money received as damages
and the fair market value of any property received as damages. VA will
not withhold the increased disability compensation payable before the
end of the month in which the money or property was received.
(3) Exception for Social Security or workers' compensation
benefits. Benefits received for the qualifying nonservice-connected
disability under Social Security or workers' compensation laws are not
subject to the offset described in paragraph (c)(1) of this section,
even if the benefits are awarded in a judicial proceeding.
(4) Duty to report receipt of judgment, settlement, or compromise.
A veteran entitled to receive increased disability compensation under
this section must report to VA the total amount of any money and the
fair market value of any property received as damages described in
paragraph (c)(1) of this section. Expenses related to the cause of
action, such as attorneys' fees, cannot be deducted from the total
amount to be reported.
(Authority: 38 U.S.C. 1160)
Sec. 5.283 Total and permanent total ratings and unemployability.
(a) Total disability ratings--(1) General. VA will consider total
disability to exist when any impairment of mind or body renders it
impossible for the average person to follow a substantially gainful
occupation. VA generally will not assign total ratings for temporary
exacerbations or acute infectious diseases except where the Schedule
for Rating Disabilities in part 4 of this chapter (the Schedule)
specifically prescribes total ratings for temporary exacerbations or
acute infectious diseases. For compensation purposes, a total
disability rating may be granted without regard to whether the
impairment is shown to be permanent.
(2) Schedular rating or total disability rating based on individual
unemployability. VA may assign a total rating for any disability or
combination of disabilities in the following cases:
(i) The Schedule prescribes a 100-percent rating, or
(ii) in a case in which VA assigns a rating of less than 100
percent, if the veteran meets the requirements of Sec. 4.16 of this
chapter or, in pension cases, the requirements of Sec. 4.17 of this
chapter.
(3) Ratings of total disability based on history. In the case of a
disability that has undergone some recent improvement, VA may
nonetheless assign a rating of total disability, provided:
(i) That the disability was severe enough in the past to warrant a
total disability rating;
(ii) That the disability:
(A) Required extended, continuous, or intermittent hospitalization;
(B) Produced total industrial incapacity for at least 1 year; or
(C) Results in recurring, severe, frequent, or prolonged
exacerbations; and
(iii) That it is the opinion of the agency of original jurisdiction
(AOJ) that, despite the recent improvement of the physical condition,
the veteran will be unable to adjust into a substantially gainful
occupation. The AOJ will consider the frequency and duration of totally
incapacitating exacerbations since incurrence of the original injury or
disease and the periods of hospitalization for treatment in determining
whether the average person could reestablish himself or herself in a
substantially gainful occupation.
(b) Permanent total disability. VA will consider a total disability
to be permanent when an impairment of mind or body that makes it
impossible for the average person to follow a substantially gainful
occupation is reasonably certain to continue
[[Page 53768]]
throughout the life of the disabled person.
(1) VA will consider the following disabilities or conditions as
constituting a permanent total disability: The permanent anatomical
loss or loss of use of both hands, or of both feet, or of one hand and
one foot; the anatomical loss or loss of sight of both eyes; being
permanently so significantly disabled as to need regular aid and
attendance; or being permanently bedridden.
(2) VA will consider an injury or disease of long-standing that is
actually totally incapacitating as a permanent total disability, if the
probability of permanent improvement under treatment is remote.
(3) VA may not assign a permanent total disability rating as a
result of any incapacity from acute infectious disease, accident, or
injury, unless there is present the permanent anatomical loss or loss
of use of extremities or the permanent anatomical loss or loss of sight
of both eyes, as described in paragraph (b)(1) of this section, or the
person is permanently so significantly disabled as to need regular aid
and attendance or permanently bedridden, or when it is reasonably
certain that a subsidence of the acute or temporary symptoms will be
followed by irreducible totality of disability by way of residuals.
(4) VA may consider the age of the disabled person in determining
whether a total disability is permanent.
(c) Insurance ratings. A rating of permanent and total disability
for insurance purposes will have no effect on a rating for compensation
or pension.
(Authority: 38 U.S.C. 501(a), 1155)
Sec. 5.284 Total disability ratings for disability compensation
purposes.
(a) General. Subject to the limitation in paragraph (b) of this
section, total disability compensation ratings may be assigned under
the provisions of Sec. 5.283.
(Authority: 38 U.S.C. 1155)
(b) Incarcerated veterans. VA will not assign a total disability
rating based on individual unemployability for compensation purposes
while a veteran is incarcerated in a Federal, State, or local penal
institution for conviction of a felony if the rating would first become
effective during such period of incarceration. However, VA will
reconsider the case to determine if continued eligibility for such
rating exists if a total disability rating based on individual
unemployability existed prior to incarceration for the felony and
routine review was required.
(Authority: 38 U.S.C. 5313(c))
(c) Program for vocational rehabilitation. Each time VA assigns a
total disability rating based on individual unemployability, the agency
of original jurisdiction will inform the Vocational Rehabilitation and
Employment Service of the rating so the Vocational Rehabilitation and
Employment Service may offer to evaluate whether it is reasonably
feasible for the veteran to achieve a vocational goal.
(Authority: 38 U.S.C. 1163)
Sec. 5.285 Continuance of total disability ratings.
(a) General. VA will not reduce a total disability rating that was
based on the severity of a person's disability or disabilities without
examination showing material improvement in physical or mental
condition. VA may reduce a total disability rating that was based on
the severity of a person's disability or disabilities without
examination if the rating was based on clear error.
(1) VA will consider examination reports showing material
improvement in conjunction with all the facts of record, including
whether:
(i) The veteran improved under the ordinary conditions of life,
i.e., while working or actively seeking work; or
(ii) The symptoms have been brought under control by prolonged rest
or by following a regimen which precludes work.
(2) If either circumstance in paragraph (a)(1)(ii) of this section
applies, VA will not reduce a total disability rating until VA has
reexamined the person after a period of 3 to 6 months of employment.
(3) Paragraphs (a), (a)(1), and (a)(2) of this section do not apply
to a total rating that was purely based on hospital, surgical, or
residence treatment, or individual unemployability.
(b) Individual unemployability. (1) VA may reduce a service-
connected total disability rating based on individual unemployability
upon a showing of clear and convincing evidence of actual
employability.
(2) When a veteran with a total disability rating based on
individual unemployability is undergoing vocational rehabilitation,
education, or training, VA will not reduce the rating because of that
rehabilitation, education, or training unless the AOJ receives:
(i) Evidence of marked improvement or recovery in physical or
mental conditions that demonstrates affirmatively the veteran's
capacity to pursue the vocation or occupation for which the training is
intended to qualify him or her;
(ii) Evidence of employment progress, income earned, and prospects
of economic rehabilitation that demonstrates affirmatively the
veteran's capacity to pursue the vocation or occupation for which the
training is intended to qualify him or her; or
(iii) Evidence that the physical or mental demands of the course
are obviously incompatible with total disability.
(3) Neither participation in, nor the receipt of remuneration as a
result of participation in, a therapeutic or rehabilitation activity
under 38 U.S.C. 1718 will be considered evidence of employability.
(4) If a veteran with a total disability rating based on individual
unemployability begins a substantially gainful occupation, VA may not
reduce the veteran's rating solely on the basis of having secured and
followed such substantially gainful occupation unless the veteran
maintains the occupation for a period of 12 consecutive months. For
purposes of this subparagraph, VA will not consider brief interruptions
in employment to be breaks in otherwise continuous employment.
(Authority: 38 U.S.C. 501(a), 1155, 1163(a))
Cross References: Sec. 5.170 (Calculation of 5-year, 10-year, and
20-year protection periods); Sec. 5.172 (Protection of continuous 20-
year ratings).
Sec. Sec. 5.286-5.299 [Reserved]
4. Sections 5.300, 5.302, 5.303, and 5.304 and their undesignated
center heading are added to subpart E and Sec. Sec. 5.301 and 5.305
through 5.310 are reserved to read as follows:
Additional Disability Compensation Based on a Dependent Parent
5.300 Establishing dependency of a parent.
5.301 [Reserved]
5.302 General income rules--parent's dependency.
5.303 Deductions from income--parent's dependency.
5.304 Exclusions from income--parent's dependency.
5.305-5.310 [Reserved]
Additional Disability Compensation Based on a Dependent Parent
Note: Sections 5.300 and 5.302 through 5.304 of this part
concern income rules for purposes of calculating benefits for a
veteran receiving disability compensation under Sec. 5.240(b). For
establishing dependency for purposes of additional dependency and
indemnity compensation, see subpart D of this part. For income rules
relating to pension benefits, see subpart F of this part.
[[Page 53769]]
Sec. 5.300 Establishing dependency of a parent.
(a) Conclusive dependency. (1) VA will find that a veteran's parent
is dependent if the parent is not residing in a foreign country and the
parent's monthly income, as counted in accordance with Sec. Sec. 5.302
through 5.304, does not exceed the following amounts:
(i) $400 for a mother or father, or a remarried parent and parent's
spouse, not living together, or $660 for a mother and father, or a
remarried parent and parent's spouse, living together; and
(ii) $185 for each additional family member, as defined by
paragraph (c) of this section.
(2) If a parent meets the requirements of paragraph (a)(1) of this
section, VA will not consider net worth.
Note to paragraph (a): Sections 5.300 and 5.302 through 5.304 of
this part concern income rules for purposes of calculating benefits
for a veteran receiving disability compensation under Sec.
5.240(b). For establishing dependency for purposes of additional
dependency and indemnity compensation, see subpart D of this part.
For income rules relating to pension benefits, see subpart F of this
part.
(b) Factual dependency. If a parent does not meet the requirements
of paragraph (a)(1) of this section, the veteran must establish
dependency of the parent based on the following rules:
(1) Income requirement. VA will find dependency if the parent does
not have sufficient income to provide reasonable maintenance for the
parent, a parent's spouse living together with the parent, and any
additional family members, as defined in paragraph (c) of this section.
(i) Reasonable maintenance includes not just basic necessities such
as housing, food, clothing, and medical care, but also other items
generally necessary to provide those conveniences and comforts of
living consistent with the parent's reasonable style of life.
(ii) A finding that the parent's income includes financial
contributions from the veteran does not establish that the parent is
the veteran's dependent. VA will consider such contributions in
connection with all of the other evidence when deciding factual
dependency.
(2) Net worth considered. (i) VA will not find that dependency of a
parent exists when some part of the parent's net worth should
reasonably be used for that parent's maintenance. See Sec. 5.414,
``Net worth determinations for Improved Pension,'' for the factors used
to determine whether net worth should reasonably be used for
maintenance.
(ii) Net worth of a minor family member will be considered income
of the parent only if it is actually available to the veteran's parent
for the minor's support.
(c) Definition of family member. For purposes of this section, the
term ``family member'' means a relative who lives with the parent,
other than a spouse, whom the parent is under a moral or legal
obligation to support. This includes, but is not limited to, a relative
under the legal age in the state where the parent resides, a relative
of any age who is dependent on the parent because of physical or mental
incapacity, and a relative who is physically absent from the household
for a temporary purpose or for reasons beyond the relative's control.
(d) Duty to report change in dependency status. If a veteran is
receiving additional disability compensation because of a parent's
dependency and the parent's income exceeds the applicable amount
specified in paragraph (a)(1) of this section, the veteran must report
an increase in the parent's income or net worth to VA when the veteran
acquires knowledge of the increase. Failure to report such an increase
may create an overpayment subject to recovery by VA.
(e) Remarriage of a parent. Dependency will not be discontinued
solely because a parent has married or remarried after VA has granted
additional disability compensation for a dependent parent. Additional
disability compensation for a parent's dependency will be continued if
evidence is submitted showing that the parent continues to meet the
requirement for a finding of conclusive dependency or factual
dependency under this section.
(Authority: 38 U.S.C. 102, 1115, 1135)
Sec. 5.301 [Reserved]
Sec. 5.302 General income rules--parent's dependency.
(a) All payments included in income. VA will count all payments of
any kind from any source in determining the income of a veteran's
parent, except as provided in Sec. 5.304, ``Exclusions from income--
parent's dependency.'' For the definition of ``payments'', see Sec.
5.370(h).
(b) Spousal income combined. The dependent parent's income includes
the income of the parent and the parent's spouse, unless the marriage
has been terminated or the parent is separated from his or her spouse.
Income is combined whether the parent's spouse is the veteran's other
parent or the veteran's stepparent. The income of the parent's spouse
will be subject to the same rules that are applicable to determining
the income of the veteran's parent.
(c) Income of family members under 21 years of age. VA will count
income earned by a family member who is under 21 years of age but will
consider income from a business or property (including trusts) of such
a family member only if that income is actually available to the
veteran's parent for the support of that family member. For purposes of
this section, ``family member'' is defined in Sec. 5.300(c).
(d) Income-producing property. VA will count income from all
property, real or personal, in which a veteran's parent has an
interest. See Sec. 5.410(f), ``Income-producing property,'' for how VA
determines ownership of property.
(e) Calculation of income from profit on the sale of property. The
following rules apply when determining the amount of income a parent
receives from net profit on the sale of business or non-business real
or personal property, except for net profit on the sale of a parent's
principal residence, which is governed by Sec. 5.304(h).
(1) Value deducted from sales price. (i) If the parent purchased
the property after VA established the veteran's entitlement to
additional disability compensation based on the parent's dependency, VA
will deduct the purchase price, including the cost of improvements,
from the selling price to determine net profit.
(ii) If the parent purchased the property before VA established the
veteran's entitlement to additional disability compensation based on
the parent's dependency, VA will deduct the value of the property on
the date of entitlement from the selling price to determine net profit.
(2) Installment sales. If the parent receives payments from the
sale of the property in installments, such payments will not be
considered income until the total amount received is equal to the
purchase price of the property (including cost of improvements), or,
where paragraph (e)(1)(ii) of this section applies, until the total
amount received is equal to the value of the property on the date VA
established the veteran's entitlement to additional disability
compensation based on the parent's dependency. Principal and interest
received with each payment will not be counted separately.
(Authority: 38 U.S.C. 102)
Sec. 5.303 Deductions from income--parent's dependency.
(a) Expenses of a business or profession. VA will deduct from a
parent's income necessary operating expenses of a business, farm, or
profession. See Sec. 5.413 for how to calculate these expenses.
[[Page 53770]]
(b) Expenses associated with recoveries for death or disability. VA
will deduct from a parent's income medical, legal, or other expenses
incident to injury or death from recoveries for such injury or death.
For purposes of this paragraph, the recovery may be from any of the
following sources:
(1) Commercial disability, accident, life, or health insurance;
(2) The Office of Workers' Compensation Programs of the U.S.
Department of Labor;
(3) The Social Security Administration;
(4) The Railroad Retirement Board;
(5) Any workmen's compensation or employer's liability statute; or
(6) Legal damages collected for personal injury or death.
(c) Certain salary deductions not deductible. For the purpose of
calculating a parent's income, a salary may not be reduced by the
amount of deductions made under a retirement act or plan or for income
tax withholding.
(Authority: 38 U.S.C. 102)
Sec. 5.304 Exclusions from income--parent's dependency.
The following is a list of exclusions that VA will not count as
income when calculating income for the purpose of establishing a
parent's dependency.
(a) Property rental value. The rental value of a residence a parent
owns and lives in.
(b) Certain waived retirement benefits. Retirement benefits from
any of the following sources, if the benefits have been waived pursuant
to Federal statute:
(1) Civil Service Retirement and Disability Fund;
(2) Railroad Retirement Board;
(3) District of Columbia (paid to firemen, policemen, or public
school teachers); or
(4) Former United States Lighthouse Service.
(c) Death gratuity. Death gratuity payments by the Secretary
concerned under 10 U.S.C. 1475 through 1480. This includes death
gratuity payments in lieu of payments under 10 U.S.C. 1478 made to
certain survivors of Persian Gulf conflict veterans authorized by sec.
307, Public Law 102-25, 105 Stat. 82.
(d) Certain VA benefit payments. The following VA benefit payments:
(1) Payments under 38 U.S.C. chapter 11, ``Compensation for
Service-Connected Disability or Death'';
(2) Payments under 38 U.S.C. chapter 13, ``Dependency and Indemnity
Compensation for Service-Connected Death'';
(3) Nonservice-connected VA disability and death pension payments;
(4) Payments under 38 U.S.C. 5121, ``Payment of certain accrued
benefits upon death of a beneficiary'';
(5) Payments under 38 U.S.C. 2302, ``Funeral expenses''; and
(6) The veteran's month-of-death rate paid to a surviving spouse
under Sec. 5.695.
(e) Certain life insurance payments. Payments under policies of
Servicemembers' Group Life Insurance, United States Government Life
Insurance, National Service Life Insurance, or Veterans' Group Life
Insurance.
(f) State service bonuses. Payments of a bonus or similar cash
gratuity by any State based upon service in the Armed Forces.
(g) Fire loss reimbursement. Proceeds from fire insurance.
(h) Profit from sale of principal residence. Net profit from the
sale of the parent's principal residence.
(1) Extent of exclusion. VA will not count net profit realized from
the sale of the parent's principal residence to the extent that it is
applied within the calendar year of the sale, or the following calendar
year, to the purchase price of another residence as the parent's
principal residence.
(2) Limitation on date of purchase of replacement residence. This
exclusion does not apply if the parent applied the net profit from the
sale to the price of a residence purchased earlier than the calendar
year preceding the calendar year of sale of the old residence.
(3) Time limit for reporting application of profit to purchase of
replacement residence. To qualify for this exclusion, the veteran must
report the application of the net profit from the sale of the old
residence to the purchase of the replacement residence within 1 year
after the date it was so applied.
(i) Payment for civic obligations. Payments received for discharge
of jury duty or other obligatory civic duties.
(j) Increased inventory value of a business. The value of an
increase of stock inventory of a business.
(k) Employer contributions. An employer's contributions to health
and hospitalization plans for either an active or retired employee.
(l) Payments listed in Sec. 5.706.
(Authority: 38 U.S.C. 102)
Sec. 5.305-5.310 [Reserved]
5. Sections 5.311 through 5.315 and their undesignated center
heading are added to subpart E and Sec. Sec. 5.316 through 5.319 are
reserved to read as follows:
Disability Compensation Effective Dates
Sec.
5.311 Effective dates--award of disability compensation.
5.312 Effective dates--increased disability compensation.
5.313 Effective dates--discontinuance of a total disability rating
based on individual unemployability.
5.314 Effective dates--discontinuance of additional disability
compensation based on parental dependency.
5.315 Effective dates--additional disability compensation based on
decrease in the net worth of a dependent parent.
5.316-5.319 [Reserved]
Disability Compensation Effective Dates
Sec. 5.311 Effective dates--award of disability compensation.
(a) Claim received within 1 year after discharge or release from
active military service. If VA grants disability compensation based on
a claim VA received within 1 year after the date the veteran was
discharged or released from a continuous period of active military
service during which the veteran incurred the injury or disease, the
effective date of the award is the later of:
(1) The day after such discharge or release from active military
service; or
(2) The date entitlement arose.
(b) Claim received more than 1 year after discharge or release from
active military service. If VA grants disability compensation based on
a claim VA received more than 1 year after the date the veteran was
discharged or released from a continuous period of active military
service during which the veteran incurred the injury or disease, the
effective date of the award is the date established by Sec. 5.150(a).
(Authority: 38 U.S.C. 5110(a), (b)(1))
Sec. 5.312 Effective dates--increased disability compensation.
(a) Applicability. This section establishes the effective date of
an award of increased disability compensation based on:
(1) A higher disability rating under subpart B of the Schedule for
Rating Disabilities in part 4 of this chapter.
(2) A higher disability rating under the extra-schedular provision
in Sec. 5.280(b).
(3) A higher disability rating under Sec. 4.16 of this chapter,
``Total disability ratings for compensation based on unemployability of
the individual.''
(4) An award or a higher rate of special monthly compensation.
Note 1 to paragraph (a): This section does not establish the
effective date of an award of secondary service connection under
Sec. 5.246 or Sec. 5.247, which is governed by Sec. 5.311.
Note 2 to paragraph (a): For effective dates for awards and
discontinuances of temporary total disability ratings based upon
[[Page 53771]]
hospitalization for treatment or observation of a service-connected
disability and for convalescence following treatment for a service-
connected disability, see Sec. Sec. 4.29 and 4.30 of this chapter.
(b) Effective date of increase--(1) Claim received within 1 year
after increase. An award of increased disability compensation will be
effective on the date that the evidence warrants a higher disability
rating, or an award or higher rate of special monthly compensation, if
VA received a claim for increased disability compensation within 1 year
after that date.
(2) Claim received more than 1 year after increase. An award of
increased disability compensation will be effective on the date
established by Sec. 5.150(a) if VA received a claim for increased
disability compensation more than 1 year after the date that the
evidence warrants a higher disability rating, or an award or higher
rate of special monthly compensation.
(Authority: 38 U.S.C. 5110(a) and (b)(2))
Sec. 5.313 Effective dates--discontinuance of a total disability
rating based on individual unemployability.
(a) Scope. This section applies to discontinuance of a veteran's
total disability rating based on individual unemployability (TDIU)
after employability is regained or based on failure to return an
employment questionnaire to VA.
(b) Discontinuance on regaining employability. If VA determines
that a veteran has regained employability, VA will discontinue the TDIU
rating and assign the existing schedular rating. Assignment of the
existing schedular rating and the reduction in disability compensation
will be effective in accordance with Sec. 5.177(f).
(c) Failure to return employment questionnaire. If a veteran fails
to return an employment questionnaire to VA within the time specified
in VA Form 21-4140, VA will discontinue the TDIU rating and assign the
existing schedular rating. Assignment of the existing schedular rating
and the reduction in disability compensation will be effective
beginning the first day of the month after the month VA last paid TDIU
benefits.
(Authority: 38 U.S.C. 5112(a) and (b)(6))
Sec. 5.314 Effective dates--discontinuance of additional disability
compensation based on parental dependency.
(a) Scope. This section applies to discontinuance of additional
disability compensation paid to a veteran for a dependent parent if
that parent is no longer dependent.
(b) Discontinuance based on a change in a parent's economic status.
If VA determines that a veteran's parent is no longer dependent due to
an improvement in economic status, the additional disability
compensation paid due to parental dependency will be discontinued as
follows:
(1) Increase in income. If dependency ends based on an increase in
income, VA will discontinue paying the additional disability
compensation on the first day of the month after the month in which the
income increased.
(2) Increase in net worth. If dependency ends based on an increase
in net worth, VA will discontinue paying the additional disability
compensation on the first day of the calendar year after the year in
which the net worth increased.
(c) Discontinuance based on a change in a parent's marital status.
If VA determines that the marriage, remarriage, annulment of a
marriage, or divorce of a dependent parent resulted in the end of
dependency of that parent, VA will discontinue paying the additional
disability compensation effective the first day of the month after the
date the change in marital status occurred.
(d) Discontinuance based on a parent's death. If a dependent parent
dies, VA will discontinue paying the additional disability compensation
on the first day of the month after the month of death.
(Authority: 38 U.S.C. 5112(b)(2) and (4))
Sec. 5.315 Effective dates--additional disability compensation based
on decrease in the net worth of a dependent parent.
(a) Scope. This rule applies under the following circumstances:
(1) VA previously denied a claim or discontinued payments of
additional disability compensation based upon parental dependency
because of a parent's net worth;
(2) The denial or discontinuation became final; and
(3) Entitlement to additional disability compensation based upon
parental dependency was subsequently established, or reestablished,
because of a decrease in the parent's net worth.
(b) Payment of additional compensation. If a parent's net worth
decreases so that additional disability compensation based on parental
dependency is warranted, VA will pay additional disability compensation
as follows:
(1) For claims filed before the actual decrease in net worth,
effective the first day of the month after the month of the decrease;
or
(2) For claims filed after the actual decrease in net worth,
effective the first day of the month after the receipt of a new claim
for additional disability compensation.
(Authority: 38 U.S.C. 501(a), 5110)
Sec. Sec. 5.316-5.319 [Reserved]
[FR Doc. 2010-21019 Filed 8-31-10; 8:45 am]
BILLING CODE 8320-01-P