VA Compensation and Pension Regulation Rewrite Project

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 3 and 5

RIN 2900-AO13

VA Compensation and Pension Regulation Rewrite Project

AGENCY:

Department of Veterans Affairs.

ACTION:

Proposed rule.

SUMMARY:

The Department of Veterans Affairs (VA) proposes to reorganize and rewrite 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, veterans' representatives, and VA personnel in locating and understanding these regulations.

DATES:

Comments must be received by VA on or before March 27, 2014.

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-AO13. Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1063B, between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday (except holidays). Please call (202) 461-4902 for an appointment (this is not a toll-free number). In addition, during the comment period, comments may be viewed online through the Federal Docket Management System at

http://www.regulations.gov

.

FOR FURTHER INFORMATION CONTACT:

William F. Russo, Deputy Director, Office of Regulations Policy & Management (02REG), Office of the General Counsel, Department of Veterans Affairs, 810 Vermont Ave. NW., Washington, DC 20420, (202) 461-4902 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION:

Introduction

The VA Office of the General Counsel provides centralized management and coordination of VA's rulemaking process through its Office of Regulation Policy and Management (ORPM). One of ORPM's major functions is to oversee VA's Regulation Rewrite Project (the Project) to improve the organization and clarity of VA's adjudication regulations, which are in current 38 CFR part 3. These regulations govern the adjudication of claims for VA's monetary benefits (compensation, pension, dependency and indemnity compensation, and burial benefits), which are administered by the Veterans Benefits Administration (VBA).

The Project responds to a recommendation made by the VA Claims Processing Task Force in its October 2001 “Report to the Secretary of Veterans Affairs” and to criticisms by the U.S. Court of Appeals for Veterans Claims. The Task Force recommended that VA reorganize its regulations in a logical, coherent manner. The Court referred to the current regulations as a “confusing tapestry” and criticized VA for maintaining substantive rules in its Adjudication Procedures Manual (manual). Accordingly, the Project reviewed the manual to identify provisions that might be substantive and incorporated those provisions in a complete rewrite of part 3. VA published the rewritten material in 20 Notices of Proposed Rulemaking (NPRMs) and gave interested persons 60 days to submit comments after each publication. These NPRMs addressed specific topics, programs, or groups of regulatory material organized under the following Rulemaking Identifier Numbers (RIN):

• RIN 2900-AL67, Service Requirements for Veterans (January 30, 2004)

• RIN 2900-AL70, Presumptions of Service Connection for Certain Disabilities, and Related Matters (July 27, 2004)

• RIN 2900-AL71, Accrued Benefits, Death Compensation, and Special Rules Applicable Upon Death of a Beneficiary (October 1, 2004)

• RIN 2900-AL72, Burial Benefits (April 8, 2008)

• RIN 2900-AL74, Apportionments to Dependents and Payments to Fiduciaries and Incarcerated Beneficiaries (January 14, 2011)

• RIN 2900-AL76, Benefits for Certain Filipino Veterans and Survivors (June 30, 2006)

• RIN 2900-AL82, Rights and Responsibilities of Claimants and Beneficiaries (May 10, 2005)

• RIN 2900-AL83, Elections of Improved Pension; Old-Law and Section 306 Pension (December 27, 2004)

• RIN 2900-AL84, Special and Ancillary Benefits for Veterans, Dependents, and Survivors (March 9, 2007)

• RIN 2900-AL87, General Provisions (March 31, 2006)

• RIN 2900-AL88, Special Ratings (October 17, 2008)

• RIN 2900-AL89, Dependency and Indemnity Compensation Benefits (October 21, 2005)

• RIN 2900-AL94, Dependents and Survivors (September 20, 2006)

• RIN 2900-AL95, Payments to Beneficiaries Who Are Eligible for More than One Benefit (October 2, 2007)

• RIN 2900-AM01, General Evidence Requirements, Effective Dates, Revision of Decisions, and Protection of Existing Ratings (May 22, 2007)

• RIN 2900-AM04, Improved Pension (September 26, 2007)

• RIN 2900-AM05, Matters Affecting the Receipt of Benefits (May 31, 2006)

• RIN 2900-AM06, Payments and Adjustments to Payments (October 31, 2008)

• RIN 2900-AM07, Service-Connected Disability Compensation (September 1, 2010)

• RIN 2900-AM16, VA Benefit Claims (April 14, 2008)

VA received numerous comments to the 20 NPRMs. These came from private individuals and several Veterans Service Organizations. VA thanks the commenters for the time they invested and the contribution they have made to the quality of the proposed regulations in this document.

VA also wishes to thank its employees, past and present, for their hard work and dedication in drafting these regulations. We are especially grateful for the contributions of the late Richard Hirst and Robert M. White, who dedicated their lives to our nation's disabled veterans.

In several of the prior NPRMs, we proposed to amend certain provisions or portions of provisions in 38 CFR part 3. Upon further consideration, if VA implemented the Project as a new 38 CFR part 5, it would not amend any part 3 provisions in conjunction with publishing part 5. Instead, it would remove part 3 in its entirety when it is no longer applicable to the adjudication of benefit claims and would provide public notice before doing so.

As stated in the prior NPRMs, we would incorporate numerous statutory amendments, VA General Counsel Opinions, court decisions, and VA manual provisions in the rewritten regulations. To the extent that any manual provision would be inconsistent with a rewritten regulation, the regulation would be binding on VA and the public. Any implementation of the rewritten regulations, whether implemented as proposed in this NPRM or in some other manner, would require a corresponding rewrite of VA's adjudication procedures manual.

VA does not intend to publish a final rule in this rulemaking proceeding in the near future. In the first quarter of fiscal year 2012, VBA formulated a Transformation Plan to improve the delivery of benefits to veterans and their dependents and survivors. In the first phase of this plan, VBA's transformational people, processes, and technology initiatives are designed to achieve VA's priority goals of processing all disability claims within 125 days and increasing rating quality to 98 percent by the end of 2015. Upon achieving those goals, the plan calls for VBA to allocate resources to maintain high-quality service for compensation claims while redirecting resources to the second phase of the transformation, which will address the needs of VBA's other benefit programs (appeals, veterans and survivors pension, dependency and indemnity compensation, burial benefits, vocational rehabilitation, education, and fiduciary). To ensure that VBA successfully implements this plan and accomplishes the Department's priority goals of eliminating the disability claims backlog and improving veterans' and survivors' access to benefits and services, VA may not publish a final-rule notice in this rulemaking until VBA's Transformation implementation is complete.

In the interim, VA will continue to amend its adjudication regulations in 38 CFR part 3 to implement changes in law and the policies and procedures that it needs to properly administer its benefit programs. In amending part 3, VA may refer to the work done by the Project and may incorporate that work in whole or in part depending upon the nature of the amendments. In this way, regardless of any future decision about implementation of the Project's rewritten regulations, VA will update its regulations at the same time that VBA is improving the delivery of benefits to veterans and survivors under the Transformation Plan.

Request for Public Comments

In this NPRM, we have merged the Rulemaking Identifier Numbers (RINs) of the 20 prior NPRMs into the RIN for this NPRM, AO13. The preamble to this NPRM addresses the public comments that VA received in response to those NPRMs and explains the changes we have made to the initially proposed rules.

Although VA does not intend to complete this rulemaking in the near future, we request public comments on the consolidation of the prior proposed rules, which would be implemented in a new 38 CFR part 5, and on the changes made to those proposed rules. Prior to publishing a final rule in this rulemaking, VA will consider any comments that it receives in response to this NPRM and will evaluate the feasibility of a one-time implementation of new part 5 as proposed. If VA determines that such an implementation is feasible, we may need to publish additional rulemakings to adapt to implementation plans and keep these proposed rules up to date.

Substantive v. Non-substantive Changes

In the NPRMs we stated:

[a]lthough 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 substantive differences are proposed . . . .

. . . .

Readers who . . . observe substantive changes between [existing regulatory provisions and proposed provisions] should consult the text that appears later in this document for an explanation of significant changes in each regulation.

In the NPRMs we sometimes referred to specific proposed changes from part 3 as “substantive” or “not substantive.” Sometimes we said “we intend no substantive change.” Our intent was to clarify for readers whether we were making a policy change (“substantive”) or merely restating existing VA policy more clearly (“non-substantive”), in those instances where we thought a reader might need that guidance. Most often, however, we applied neither label to our changes; instead we simply told the reader how we were proposing to change a regulation provision and why.

However, the case of

Roberts

v.

Shinseki,

23 Vet. App. 416 (2010),

aff'd on other grounds,

647 F.3d 1334 (Fed. Cir. 2011), the U.S. Court of Appeals for Veterans Claims (CAVC) showed how such labels can be misleading. In

Roberts,

the CAVC affirmed VA's severance of fraudulent service connection. The Secretary argued severance for fraud is subject to the due process required in 38 CFR 3.103(b) (concerning adverse decisions) and exempt from the requirements of § 3.105(d) (concerning severance of service connection). The CAVC also held that the reference to compliance with § 3.105(d) in the regulation on protection of service-connected status § 3.957 does not apply in cases of fraud. In holding that § 3.105(d) does not apply to severance of service connection based fraud, the CAVC explicitly rejected appellant's §§ 3.105(a) and 3.957 arguments that severance for fraud requires proof that the grant was based on clear and unmistakable error (CUE).

The

Roberts

dissent quoted at length from NPRM AM 01, 72 FR 28770, May 22, 2007, to rebut the Secretary's assertion that his argument correctly stated VA interpretation of §§ 3.105(d) and 3.957 in light of regulatory history and in the absence of historical information that VA ever implemented the regulations differently. The dissent first noted that in rewriting §§ 3.957 and 3.105(d), “VA intends to `clarify' and recodify 38 CFR 3.957 and the provisions of 38 CFR 3.105(d) that govern when service connection may be severed at 38 CFR 5.175, entitled `Protection or severance of service connection.' ”

Id.

at 436. The dissent also noted that our proposed regulations did not except severance of service connection based on fraud from the due process or burden of proof elements of §§ 3.957 or 3.105(d). Finally, the dissent noted that the NPRM stated that it explained any substantive changes between part 3 and part 5, 72 FR 28771-27772, May 22, 2007, and that there was nothing in the NPRM “indicating that the rewriting and restructuring of the regulations [pertaining to severance of service connection for fraud] are intended as substantive changes.” Id. at 437-39. From these observations, the dissent reasoned, the NPRM revealed VA's interpretation of §§ 3.957 and 3.105(d) as requiring application of both the process and burden of proof provisions of § 3.105(d) before severing service connection.

This dissent illustrates the need to revise the way we use labels describing differences between part 5 regulations and the part 3 regulations from which they derive. In addition to the confusion highlighted by the

Roberts

case, we believe that readers may incorrectly read our substantive or non-substantive labels as referring to the distinction that the Administrative Procedures Act (specifically 5 U.S.C. 553) makes between substantive rules and interpretive or procedural rules. See

Cmty. Nutrition Inst.

v.

Young,

818 F.2d 943 (D.C. Cir. 1987);

Vermont Yankee Nuclear Power Corp.

v.

Natural Resources Defense Council,

435 U.S. 519 (1978);

Am. Hosp. Ass'n

v.

Bowen,

834 F.2d 1037, 1045 (D.C. Cir. 1987).

To avoid potential confusion, we now advise readers to draw no inferences from the use of, or non-use of, the labels substantive or non-substantive in the NPRMs. Instead, readers should simply rely on our actual description of the change and our reasons for making the change. The only instances where we use “substantive” in this preamble are where we used the term to refute a

comment asserting that we are diminishing rights or benefits and when used to distinguish a “substantive” provision from a “procedural” one.

II. 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 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 5, general definitions, and general policy provisions for this part. We published this subpart as a Notice of Proposed Rulemaking (NPRM) on Mar. 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. We published this subpart as an NPRM on Jan. 30, 2004.

See

69 FR 4820

“Subpart C: Adjudicative Process, General” would inform readers about claim filing and benefit application procedures, VA's duties, claimants' and beneficiaries' rights and responsibilities, general evidence requirements, and general effective dates of new awards, and about revision of decisions and protection of VA ratings. We published this subpart as three separate NPRMs due to its size. We published the first, concerning the duties of VA and the rights and responsibilities of claimants and beneficiaries, on May 10, 2005.

See

70 FR 24680. We published the second, concerning general evidence requirements, effective dates, revision of decisions, and protection of existing ratings, on May 22, 2007.

See

72 FR 28770. We published the third, concerning rules on filing benefits claims, on April 14, 2008.

See

73 FR 20136.

“Subpart D: Dependents and Survivors” would inform readers how VA determines whether a person is a dependent or a survivor for purposes of determining eligibility for benefits. It would also provide the evidence requirements for these determinations. We published this subpart as an NPRM on September 20, 2006.

See

71 FR 55052.

“Subpart E: Claims for Service Connection and Disability Compensation” would define service-connected disability compensation and service connection, including direct and secondary service connection. This subpart would inform readers how VA determines 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. We published this subpart as three separate NPRMs due to its size. We published the first, concerning presumptions related to service connection, on July 27, 2004.

See

69 FR 44614. We published the second, concerning special ratings, on October 17, 2008.

See

73 FR 62004. We published the third, concerning service-connection and other disability compensation, on September 1, 2010.

See

75 FR 53744.

“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 entitlement to Improved Pension and the effective dates governing each pension. We published this subpart as two separate NPRMs due to its size. We published the portion concerning Old-Law Pension, Section 306 Pension, and elections of Improved Pension on December 27, 2004.

See

69 FR 77578. We published the portion concerning eligibility and entitlement requirements, as well as effective dates of Improved Pension, 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 benefits, or proceeds of benefits, when a beneficiary dies. This subpart would also include related definitions, effective-date rules, and rate-of-payment rules. We published this subpart as two separate NPRMs due to its size. We published the NPRM concerning accrued benefits, special rules applicable upon the death of a beneficiary, and several effective-date rules, on October 1, 2004.

See

69 FR 59072. We published the NPRM concerning DIC benefits and general provisions relating to proof of death and service-connected cause of death 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 a child with various birth defects. We published this subpart as an NPRM 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. We published this subpart as an NPRM on June 30, 2006.

See

71 FR 37790.

“Subpart J: Burial Benefits” would pertain to burial allowances. We published this subpart as an NPRM on April 8, 2008.

See

73 FR 19021.

“Subpart K: Matters Affecting the Receipt of Benefits” would contain provisions regarding bars to benefits, forfeiture of benefits, and renouncement of benefits. We published this subpart as an NPRM 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. We published this subpart as two separate NPRMs due to its size. We published the first, concerning payments to beneficiaries who are eligible for more than one benefit, on October 2, 2007.

See

72 FR 56136. We published the second, concerning payments and adjustment to payments, 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. We published the NPRM, concerning apportionments to dependents and payments to fiduciaries and incarcerated beneficiaries, on January 14, 2011.

See

76 FR 2766.

III. Tables Comparing Proposed Part 5 Rules With Current Part 3 Rules

The purpose of the Regulation Rewrite Project is to reorganize all of VA's compensation and pension rules in a logical, claimant-focused, and user-friendly format. We have redistributed the part 3 regulations into a new organizational structure, part 5. We have created two tables, the distribution table and the derivation table, to facilitate the understanding of the redistribution of the regulations. These tables are meant to aid users who are familiar with either

the part 3 or the part 5 regulations and are searching for their counterparts in part 5 or part 3. We have updated the tables in this NPRM to reflect the proposed changes from the 20 initial NPRMs already published.

The distribution table lists the part 3 regulations by title and matches them with the corresponding part 5 regulations. There may not be an equivalent part 5 regulation for some part 3 regulations. This is indicated by the phrase “NO PART 5 REG—unnecessary” in the part 5 column. There are several reasons not to include certain part 3 regulations in part 5. It may be obsolete or repetitive of another provision that fully covers the intent of the regulation.

The derivation table is organized by subpart. Each subpart contains regulations relevant to the title of the subpart. The derivation table lists the proposed part 5 regulations in numerical order, with the corresponding part 3 paragraph numbers and the part 5 section title. Some of the part 5 regulations have no part 3 counterpart. This is indicated by the term “new” in the part 3 column. A regulation is determined to be “new” because it may be based on a change in law, a court decision, a General Counsel Opinion, or a manual provision.

As stated previously, there are also instances where we have not carried over a part 3 regulation into part 5. Where appropriate, we have included a comment explaining why part 5 does not include a certain part 3 provision. We propose to add part 5 citations to all the cross-references on the table to ensure that readers will be able to locate the relevant regulation.

IV. General Comments on Regulation Rewrite Project

One commenter, in response to AL70, “Presumptions of service connection for certain disabilities, and related matters”, suggested that VA's decision to rewrite and reorganize the provisions of part 3 and promulgate them as part 5 is not in the best interest of veterans. The commenter stated that as part 3 has withstood the scrutiny of the courts and has been changed accordingly, there is no reason to now rewrite it. Additionally, the commenter feared that the introduction of part 5 will lead to an increase in the number of appeals to the courts as the regulations undergo the rigors of judicial review, which will result in delays to claimants.

Another commenter asserted that proposed AL83, “Elections of Improved Pension; Old-Law and Section 306 Pension”, would add to the administrative costs of VA programs and therefore should not be adopted. This commenter urged VA to provide the services already promised rather than seek “to change the manner in which they are not put forward.”

The project to rewrite and reorganize the regulations responds to a recommendation made in the October 2001 “Report to the Secretary of Veterans Affairs” by the VA Claims Processing Task Force. The Task Force recommended that the Compensation and Pension (C&P) regulations be rewritten and reorganized in order to improve VA's claims adjudication process. These regulations are among the most difficult VA regulations for readers to understand and apply. The Project began its efforts by reviewing, reorganizing, and redrafting the regulations in 38 CFR part 3 governing the C&P programs of the Veterans Benefits Administration.

We disagree with the assertion of the commenters that rewriting and reorganizing the regulations in part 3 is not in the best interests of veterans. Although it is possible that the validity of the new part 5 regulations may be challenged in the short-term, in the long-term, rewriting and reorganizing these regulations will be beneficial to veterans. This is because part 5 will be better organized, which will allow readers and VA personnel to find information more easily. In addition, the part 5 regulations will be easier for the average reader to understand, will resolve many ambiguities and inconsistencies, and they will not include many outdated references and regulations that are found in part 3. Therefore, we propose to make no changes based on these comments.

One commenter asserted that, without legal authority, VA interprets, amends, and reverses laws enacted by Congress. The commenter stated that VA regulations obstruct compensation and “impose a separate, discriminatory, quasi-judicial process upon veterans.”

We respectfully disagree with the comment and propose to make no changes based on it. Congress has given VA authority to regulate in order to carry out statutory programs supporting veterans and their families, as stated in 38 U.S.C. 501, “Rules and regulations”. Paragraph (a) of section 501 includes the following:

• The Secretary has authority to prescribe all rules and regulations which are necessary or appropriate to carry out the laws administered by the Department and are consistent with those laws, including—

○ regulations with respect to the nature and extent of proof and evidence and the method of taking and furnishing them in order to establish the right to benefits under such laws;

○ the forms of application by claimants under such laws;

○ the methods of making investigations and medical examinations; and

○ the manner and form of adjudications and awards.

The same commenter asserted that the Feres Doctrine (which restricts active duty servicemembers from filing suit against the U.S. Government) and the restrictions on veterans hiring attorneys to represent them in VA claims (

see

38 U.S.C. 5904) are unconstitutional. The commenter also asserted that VA decisions have upheld the grant of “sovereign immunity” to the chemical companies that manufactured Agent Orange and other defoliants. Lastly, the same commenter urged that VA adopt a regulation requiring that any VA employee who wrongfully denies benefits to a veteran to be permanently removed from federal employment and lose all their retirement benefits. We propose to make no changes based on any of these comments because they are outside the scope of this rulemaking.

V. Technical Corrections and Changes to Terminology for Part 5

We propose to make certain additional technical corrections and changes in terminology in this proposed rule.

Technical Corrections

In addition to considering any necessary changes to proposed part 5 regulations based on comments received from the public, we propose to make certain technical corrections. These corrections include updated citations to certain regulations to which the NPRM referred. We are now replacing these “place holder” citations with the current part 5 citations.

Additionally, we propose to renumber certain regulations of part 5 in order to accommodate all needed regulations.

As stated previously in this preamble, we propose to eventually replace 38 CFR part 3 with a new part 5. We note that numerous 38 CFR sections reference part 3 sections. To update these citations throughout 38 CFR, we propose to add “or [insert part 5 section]” after each to include a reference to the part 5 equivalent to the referenced part 3 provision.

We have compiled the following table that lists the sections in 38 CFR outside part 3 that reference part 3 sections. In addition to the part 3 section, the list includes the corresponding part 5 citation. The list is organized by part. As discussed in various portions of this preamble, there are instances where a

part 3 regulation will not be carried over into part 5. In those instances, we propose to simply leave the part 3 citation unchanged.

Table of References to 38 CFR Part 3 Sections

This table lists the sections in 38 CFR outside part 3 that reference part 3 sections. In addition to the part 3 section, the list includes the corresponding part 5 citation. The list is organized by part.

Part

Part name

38 CFR section

Part 3 section

referenced

Equivalent part 5 citation

1

General Provisions

1.17(c)

3.311

5.269

1.911(f)(2)

3.103(e)

5.80

1.969(b)(1)

3.104(a)

5.160(a)

1.969(b)(2)

3.105(a); 3.105(b)

5.162(c); 5.162(f); 5.163

1.969(b)(3)

3.103

5.4(a); 5.4(b); 5.80; 5.81; 5.82; 5.83; 5.84

1.969(c)

3.105(b)

5.163

1.969(c)

3.400(h)

5.150(a); 5.166; 5.55(e)

4

Schedule for Rating Disabilities

4.3

3.102

5.249(a); 5.4(b); 5.3(b)(2); 5.3(b)(3); 5.3(b)(5);

4.17(b)

3.321(b)(2)

5.380(c)(5)

4.28(Note(1))

3.105(e)

5.177(f)

4.29(a)(2)

3.105(e)

5.177(f)

4.29(g)

3.321(b)(1)

5.280

4.30 (introduction)

3.105(e)

5.177(f)

4.30(a)(3)

3.105(e)

5.177(f)

4.71a (table II) (row 2 column 2)

3.350(c)(1)(i)

5.326(a)

4.71a (table II) (row 2 column 3)

3.350(b)

5.324

4.71a (table II) (row 2 column 4)

3.350(f)(1)(x)

5.327(a)

4.71a (table II) (row 2 column 5)

3.350(f)(1)(vi)

5.325(c)

4.71a (table II) (row 2 column 6)

3.350(f)(1)(xi)

5.328(b)

4.71a (table II) (row 2 column 7)

3.350(f)(1)(viii)

5.326(f)

4.71a (table II) (row 3 column 3)

3.350(b)

5.324

4.71a (table II) (row 3 column 4)

3.350(f)(1)(iii)

5.325(b)

4.71a (table II) (row 3 column 5)

3.350(f)(1)(i)

5.325(a)

4.71a (table II) (row 3 column 6)

3.350(f)(1)(iv)

5.326(d)

4.71a (table II) (row 3 column 7)

3.350(f)(1)(ii)

5.326(c)

4.71a (table II) (row 4 column 4)

3.350(d)(1)

5.328(a)

4.71a (table II) (row 4 column 5)

3.350(c)(1)(iii)

5.326(e)

4.71a (table II) (row 4 column 6)

3.350(f)(1)(ix)

5.327(d)

4.71a (table II) (row 4 column 7)

3.350(f)(1)(xi)

5.328(b)

4.71a (table II) (row 5 column 5)

3.350(c)(1)(ii)

5.326(b)

4.71a (table II) (row 5 column 6)

3.350(f)(1)(vii)

5.327(c)

4.71a (table II) (row 5 column 7)

3.350(f)(1)(v)

5.327(b)

4.71a (table II) (row 6 column 6)

3.350(e)(1)(i)

5.330(a)

4.71a (table II) (row 6 column 7)

3.350(d)(3)

5.328(d)

4.71a (table II) (row 7 column 7)

3.350(d)(2)

5.328(c)

4.71a Note to table II

3.350(b); 3.350(e)(2); 3.350(f)(3); 3.350(f)(4); 3.350(f)(5)

5.324; 5.330(d); 5.331(d); 5.331(e); 5.331(f)

4.73 Note

3.350

5.323; 5.322; 5.324; 5.325; 5.326; 5.327; 5.328; 5.329; 5.330; 5.331(c); 5.331(d); 5.331(f); 5.332; 5.333; 5.346(b)(1)(i); 5.346(b)(2);

4.73 Note after (the pelvic girdle and thigh)

3.350(a)(3)

5.323(d)(1); 5.323(d)(2)

4.73 Note after 5327 (miscellaneous)

3.105(e)

5.177(f)

4.73 Note after 5329 (miscellaneous)

3.105(e)

5.177(f)

4.75(c)

3.383(a)

5.383(b)

4.75(f)

3.350

5.323; 5.322; 5.324; 5.325; 5.326; 5.327; 5.328; 5.329; 5.330; 5.331(c); 5.331(d); 5.331(f); 5.332; 5.333; 5.346(b)(1)(i); 5.346(b)(2);

4.79 Note after 6014

3.105(e)

5.177(f)

4.79 footnote 1 after (diseases of the eye)

3.350

5.323; 5.322; 5.324; 5.325; 5.326; 5.327; 5.328; 5.329; 5.330; 5.331(c); 5.331(d); 5.331(f); 5.332; 5.333; 5.346(b)(1)(i); 5.346(b)(2);

4.79 footnote 1 after (ratings for impairment of visual fields)

3.350

5.323; 5.322; 5.324; 5.325; 5.326; 5.327; 5.328; 5.329; 5.330; 5.331(c); 5.331(d); 5.331(f); 5.332; 5.333; 5.346(b)(1)(i); 5.346(b)(2);

4.85(f)

3.383

5.283

4.85(g)

3.350

5.323; 5.322; 5.324; 5.325; 5.326; 5.327; 5.328; 5.329; 5.330; 5.331(c); 5.331(d); 5.331(f); 5.332; 5.333; 5.346(b)(1)(i); 5.346(b)(2);

4.87 Note after (6208)

3.105(e)

5.177(f)

4.88b Note after (6301)

3.105(e)

5.177(f)

4.88b Note after (6302)

3.105(e)

5.177(f)

4.96(c)

3.350

5.323; 5.322; 5.324; 5.325; 5.326; 5.327; 5.328; 5.329; 5.330; 5.331(c); 5.331(d); 5.331(f); 5.332; 5.333; 5.346(b)(1)(i); 5.346(b)(2);

4.97 Note after (6731)

3.105(e)

5.177(f)

4.97 Note after (6819)

3.105(e)

5.177(f)

4.97 footnote 1

3.350

5.323; 5.322; 5.324; 5.325; 5.326; 5.327; 5.328; 5.329; 5.330; 5.331(c); 5.331(d); 5.331(f); 5.332; 5.333; 5.346(b)(1)(i); 5.346(b)(2);

4.104 Note after (7011)

3.105(e)

5.177(f)

4.104 Note after (7016)

3.105(e)

5.177(f)

4.104 Note after (7019)

3.105(e)

5.177(f)

4.104 Note after (7110)

3.105(e)

5.177(f)

4.104 Note 3 after (7111)

3.105(e)

5.177(f)

4.104 Note after (7123)

3.105(e)

5.177(f)

4.114 Note after (7343)

3.105(e)

5.177(f)

4.114 Note after (7351)

3.105(e)

5.177(f)

4.115b Note

3.350

5.323; 5.322; 5.324; 5.325; 5.326; 5.327; 5.328; 5.329; 5.330; 5.331(c); 5.331(d); 5.331(f); 5.332; 5.333; 5.346(b)(1)(i); 5.346(b)(2);

4.115b Note after (7528)

3.105(e)

5.177(f)

4.115b Note after (7531)

3.105(e)

5.177(f)

4.115b footnote 1

3.350

5.323; 5.322; 5.324; 5.325; 5.326; 5.327; 5.328; 5.329; 5.330; 5.331(c); 5.331(d); 5.331(f); 5.332; 5.333; 5.346(b)(1)(i); 5.346(b)(2);

4.116 Note2

3.350

5.323; 5.322; 5.324; 5.325; 5.326; 5.327; 5.328; 5.329; 5.330; 5.331(c); 5.331(d); 5.331(f); 5.332; 5.333; 5.346(b)(1)(i); 5.346(b)(2);

4.116 Note after (7627)

3.105(e)

5.177(f)

4.116 footnote 1

3.350

5.323; 5.322; 5.324; 5.325; 5.326; 5.327; 5.328; 5.329; 5.330; 5.331(c); 5.331(d); 5.331(f); 5.332; 5.333; 5.346(b)(1)(i); 5.346(b)(2);

4.117 Note after (7702)

3.105(e)

5.177(f)

4.117 Note after (7703)

3.105(e)

5.177(f)

4.117 Note after (7709)

3.105(e)

5.177(f)

4.117 Note after (7714)

3.321(b)(1)

5.280

4.117 Note after (7715)

3.105(e)

5.177(f)

4.117 Note after (7716)

3.105(e)

5.177(f)

4.118 Note after (7818)

3.105(e)

5.177(f)

4.118 Note after (7833)

3.105(e)

5.177(f)

4.119 Note after (7914)

3.105(e)

5.177(f)

4.119 Note after (7919)

3.105(e)

5.177(f)

4.12a Note(5) after (8045)

3.114

5.152

4.127

3.310(a)

5.246

4.128

3.105(e)

5.177(f)

14

Legal Services, General Counsel, and Miscellaneous Claims

14.636(c)

3.156

5.3(b)(6); 5.55; 5.153; 5.165

14.636(h)(1)(iii)

3.750

5.745

17

Medical

17.36(b)(7)

3.271; 3.272; 3.273; 3.276

5.370; 5.410(a); 5.410(c); 5.410(d); 5.410(e); 5.410(f); 5.412; 5.413; 5.414(a); 5.414(c); 5.421; 5.423(a); 5.423(b); 5.423(e); 5.706(b); 5.707(c)

17.39(a)

3.42(c)

5.613

17.39(b)

3.42(c)

5.613

17.47(d)(4)

3.271; 3.272

5.370; 5.410(a); 5.410(c); 5.410(d); 5.410(e); 5.410(f); 5.411(a); 5.411(c); 5.412; 5.413; 5.706(b); 5.707(c)

17.47(d)(5)

3.275

5.410(d); 5.411(b), 5.411(c), 5.412(a); 5.414; 5.706(b);

17.96(a)(1)

3.1(u);3.1(w)

5.1 (Improved Pension);

5.1 (Section 306 Pension); 5.460

17.900

3.814(c)(2); 3.815(c)(2)

5.589; 5.590

17.900

3.815(c)(3)

5.590

17.900

3.814(c)(1); 3.815(c); 3.815(c)(1)

5.589; 5.590

17.901(a)

3.814; 3.815

5.589; 5.590; 5.591

17.901(b)

3.815; 3.815(a)(2)

5.590

17.903(a)(2)(i)

3.814

5.589; 5.591

17.903(a)(2)(ii)

3.815

5.590; 5.591

18

Nondiscrimination in Federally Assisted Programs of the Department of Veterans Affairs-Effectuation of Title VI of the Civil Rights Act of 1964

Appendix B to Subpart E of part 18 (Veterans' Benefits) (Adjudication)

3.57

5.1 (Custody of a child); 5.417; 5.220; 5.223; 5.225; 5.226; 5.435; 5.695(a)

Appendix B to Subpart E of part 18 (Survivors' and Dependents' Educational Assistance) (Adjudication)

3.57; 3.807(d)

5.1 (Custody of a child); 5.417; 5.220; 5.223; 5.225; 5.226; 5.435; 5.695(a)

Appendix B to Subpart E of part 18 (Survivors' and Dependents' Educational Assistance) (Adjudication) (Survivors' and Dependent's Educational Assistance Under 38 U.S.C. Chapter 35)

3.807(d).

Appendix B to Subpart E of part 18 (Veterans' Educational Assistance)

3.50; 3.57; 3.59

5.1 (Custody of a child); 5.201(a); 5.203(b); 5.220; 5.223; 5.225; 5.226; 5.238; 5.417; 5.435; 5.695(a)

20

Board of Veterans' Appeals: Rules of Practice

20.101(a)(28)

3.812(d)

5.588

20.1502(c)(3)

3.156

5.3(b)(6); 5.55; 5.153; 5.165

20.1502(c)(4)

3.105

5.162

20.1503(d)

3.159(b)(1)

5.90

20.1504(b)

3.159(c)

5.90

20.1505

3.2600

5.161

20.1507(a)

3.103(c); 3.2600(c)

5.82; 5.161

20.1507(a)(2)

3.2600

5.161

Appendix A to part 20 (20.1)

3.103

5.4(a); 5.4(b); 5.80; 5.81; 5.82; 5.83; 5.84

Appendix A to part 20 (20.1105)

3.156; 3.160

5.3(b)(6); 5.55; 5.153; 5.165; 5.57(b)-(d)

Appendix A to part 20 (20.1106)

3.22

5.520(b); 5.521; 5.522

Appendix A to part 20 (20.1304)

3.103; 3.156; 3.160

5.3(b)(6); 5.4(a); 5.4(b); 5.55; 5.80; 5.81; 5.82; 5.83; 5.84; 5.153; 5.165; 5.57(b)-(d)

21

Vocational Rehabilitation and Education

21.33 Cross-Reference

3.103

5.4(a); 5.4(b); 5.80; 5.81; 5.82; 5.83; 5.84

21.42(b)(1)

3.12

5.30; 5.31(c); 5.31(e); 5.32; 5.33; 5.34(c); 5.35(b)-(d); 5.36; 5.39

21.48(a)

3.105(d); 3.105(e)

5.83(a)

5.175(b)(1); 5.175(b)(2); 5.177(d); 5.177(f)

21.260(d)

3.50; 3.51; 3.57; 3.59

5.1 (Custody of a child); 5.201(a); 5.203(b); 5.220; 5.223; 5.225; 5.226; 5.238; 5.417; 5.435; 5.695(a)

21.330(a)

3.451; 3.458

5.771; 5.775

21.330(b)

3.400(e)

5.782

21.414(a)

3.105(a)

5.162(c); 5.162(f)

21.414(b)

3.105(b)

5.163

21.414(c)

3.105(c)

5.177(e)

21.414(d)

3.105(d)

5.177(d)

21.414(e)

3.105(e)

5.177(f)

21.422(d)(3)

3.103(c); 3.103(d)

5.81; 5.82

21.3021(a)(2)(ii)

3.6(a); 3.807

5.21(a); 5.586(b); 5.586(c)

21.3021(b)

3.40(b); 3.40(c); 3.40(d); 3.807(d)

5.610

21.3021 Cross-Reference

3.6

5.21(a); 5.22(a); 5.23; 5.24; 5.25; 5.29

21.3021 Cross-Reference (persons included)

3.7

5.21(a); 5.23(a)-(b); 5.24(a); 5.25(a)-(b); 5.28; 5.31(c)

21.3021 Cross-Reference (Philippine and insular forces)

3.40

5.610

21.3023 Cross-Reference (concurrent payments)

3.707

5.764(b); 5.764(c); 5.764(d)

21.3023 Cross-Reference (certification)

3.807

5.586(b); 5.586(c)

21.3024 Cross-Reference

3.708

5.750; 5.751

21.3041(e)

3.57(c)

5.223(b)

21.3131(d)

3.40(b); 3.40(c); 3.40(d)

5.610

21.3133(c)

3.1000

5.1 (Accrued benefits); 5.1 (Evidence in the file on the date of death); 5.551; 5.784; 5.552(a); 5.552(b); 5.553; 5.554

21.3306(b)(3)(ii)

3.102

5.3(b)(2); 5.3(b)(3); 5.3(b)(5); 5.4(b); 5.249(a)

21.3333(c)

3.40(b); 3.40(c); 3.40(d)

5.610

21.4003(a)

3.105(a)

5.162(c); 5.162(f)

21.4003(b)

3.105(b)

5.163

21.4003(c)

3.105(c)

5.177(e)

21.4003(d)

3.105(d)

5.177(d)

21.4007

3.900; 3.901(except paragraph (c)); 3.902 (except paragraph (c)); 3.903;3.904; 3.905

5.675(a); 5.676(b) and (c); 5.677(b) and (c); 5.678(b)(3); 5.675(b); 5.1 (Fraud (1)); 5.676(a); 5.676(b)(2); 5.676(b)(1); 5.676(b)(3)(i); 5.680(c)(1); 5.680(c)(2); 5.677; 5.678; 5.676(d); 5.677(b)(3)(ii); 5.677(c)(2); 5.678(b)(3)(iv); 5.678(c)(2); 5.679; 5.680(a); 5.680(c)(3)

21.4135(t)

3.114(b)

5.152

21.4200(x)

3.1(i)

5.1 (State)

21.5021(b)(5)

3.15

5.21(b); 5.39(e)

21.5021(l)

3.1(j)

5.191

21.5021(m)

3.1(j); 3.52

5.191; 5.200(a); 5.200(b)

21.5021(n)(2)

3.57; 3.58

5.1 (Custody of a child); 5.417; 5.220; 5.223; 5.225; 5.226; 5.435; 5.695(a); 5.224(a)

21.5021(o)

3.59

5.238

21.5040(b)(2)(ii)

3.13(c)

5.37(d)

21.5040(b)(3)

3.12; 3.13

5.30; 5.31(c); 5.31(e); 5.32; 5.33; 5.34(c); 5.35(b)-(d); 5.36; 5.39; 5.37(b); 5.37(c); 5.37(d)

21.5040(c)(3)

3.15

5.21(b); 5.39(e)

21.5040(d)(1)(ii)

3.4(b)

5.24(a); 5.24(b)

21.5040(d)(3)

3.15

5.21(b); 5.39(e)

21.5065(b)(5)(iv)

3.4(b)

5.24(a); 5.24(b)

21.5065(b)(6)

3.15

5.21(b); 5.39(e)

21.5067(c)

3.1000

5.1 (Accrued benefits); 5.1 (Evidence in the file on the date of death); 5.551; 5.784; 5.552(a); 5.552(b); 5.553; 5.554

21.5740(b)(2)(iii)

3.4(b)

5.24(a); 5.24(b)

21.5740(b)(3)

3.15

5.21(b); 5.39(e)

21.5742(a)(1)

3.15

5.21(b); 5.39(e)

21

VR&E

21.6050(a)

3.342

5.380; 5.347

21.6050(b)

3.342

5.380; 5.347

21.6420(d)

3.343

5.286; 5.347

21.6501(a)

3.340; 3.341

5.284; 5.285

21.6503(b)

3.340; 3.341

5.284; 5.285

21.6507(a)

3.343(c)(2)

5.286

21.6521(b)

3.343(c)(2)

5.286

21.7020(b)(1)(iii)

3.6(b)

5.22(a); 5.22(b); 5.23(a)(1); 5.23(b)(1); 5.24(a); 5.24(b)(1); 5.25(a); 5.29(a)

21.7020(b)(1)(iv)

3.6(b)

5.22(a); 5.22(b); 5.23(a)(1); 5.23(b)(1); 5.24(a); 5.24(b)(1); 5.25(a); 5.29(a)

21.7020(b)(9)(ii)

3.57

5.1 (Custody of a child); 5.417; 5.220; 5.223; 5.225; 5.226; 5.435; 5.695(a)

21.7020(b)(9)(iii)

3.59

5.238(a); 5.238(c); 5.238(e)(1) and 5.238(e)(2)(i)

21.7042

3.15

5.21(b); 5.39(e)

21.7044

3.15

5.21(b); 5.39(e)

21.7080(c)(3)

3.57

5.1 (Custody of a child); 5.417; 5.220; 5.223; 5.225; 5.226; 5.435; 5.695(a)

21.7080(c)(4)

3.57

5.1 (Custody of a child); 5.417; 5.220; 5.223; 5.225; 5.226; 5.435; 5.695(a)

21.7031(e) Cross-Reference

3.667

5.551(a); 5.695(b); 5.695(c); 5.695(d); 5.695(f)-(i)

21.7135(y)

3.114(b)

5.152

21.7140(g)

3.1000

5.1 (Accrued benefits); 5.1 (Evidence in the file on the date of death); 5.551; 5.784; 5.552(a); 5.552(b); 5.553; 5.554

21.7280(b)(2)

3.312

5.504

21.7303(a)

3.105(a)

5.162(c); 5.162(f)

21.7303(b)

3.105(b)

5.163

21.7635(u)

3.114(b)

5.152

21.7803(a)

3.105(a)

5.162(c); 5.162(f)

21.7803(b)

3.105(b)

5.163

21.8010(a)

3.815(c)(3)

5.590

21.8010(a)

3.814(c)(2); 3.815(a)(2); 3.815(c)(2)

5.589; 5.590

21.8010(a)

3.814(c)(3)

5.589

21.8010(a)

3.814(c)(1); 3.815(c)(1)

5.589; 5.590

21.9570(b)(3)

3.57

5.1 (Custody of a child); 5.417; 5.220; 5.223; 5.225; 5.226; 5.435; 5.695(a)

21.9570(b)(4)

3.57

5.1 (Custody of a child); 5.417; 5.220; 5.223; 5.225; 5.226; 5.435; 5.695(a)

21.9625(j)(4)

3.57

5.1 (Custody of a child); 5.417; 5.220; 5.223; 5.225; 5.226; 5.435; 5.695(a)

21.9635(u)

3.114(b)

5.152

21.9680(e)

3.1000

5.1 (Accrued benefits); 5.1 (Evidence in the file on the date of death); 5.551; 5.784; 5.552(a); 5.552(b); 5.553; 5.554

Changes in Terminology for Clarity or Consistency

We propose changes in terminology in this rulemaking primarily to achieve consistency throughout part 5. For example, while reviewing the NPRMs, we noted that we had used the word “termination” interchangeably with the word “discontinuance” (including variations of the two words). To ensure clarity and consistency in our part 5 regulations, we propose to use the term “discontinuance” throughout. The word “discontinuance” is more accurate because there are occasions when the benefit is not terminated, but discontinued for a period, and then resumed. Similarly, we propose to use “person” rather than “individual” in all instances where either term would apply.

According to paragraph 12.9 of the Government Printing Office Style Manual (2008), numerals rather than words are used when referring to units of measurement and time. Therefore, we propose to substitute the number for the word (for example, “1 year” instead of “one year”) throughout part 5.

Another source of ambiguity and confusion is the phrase “on or after” which is used in connection with a specific date when discussing the effective date of a regulatory provision or the date by which an event must have occurred. For example, a regulatory provision might be effective “on or after” October 1, 1982, which to some may seem to permit a choice between “on” or “after”. The simplest way to eliminate this ambiguity is to identify the day before the effective date and precede that date with the word “after”. In the above example, the regulatory provision would be effective “after September 30, 1982”. This method of stating effective dates makes our regulations easier to understand and apply.

We noted that in the NPRMs we used “VA benefits” and “benefits” inconsistently and interchangeably. We propose to define “

Benefit” as “

any VA payment, service, commodity, function, or status, entitlement to which is determined under this part, except as otherwise provided.” Therefore, we propose to generally not include “VA” before “benefit”. However, we propose to still use “VA benefit” when that term is needed to distinguish it from some other benefit such as a Social Security benefit or some benefit for which election is required (e.g. Radiation Exposure Compensation Act).

Removal of Death Compensation Provisions

There are less than 300 beneficiaries currently receiving death compensation. Except for one small group of beneficiaries, 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 any more.

Because of the small number of beneficiaries of death compensation, there is no need to include the provisions concerning claims for death compensation in part 5. We therefore propose to remove the death compensation provisions (§§ 5.560-5.562) that were initially proposed in AL71. 69 FR 59072, Oct. 1, 2004. We propose to reserve §§ 5.560-5.562 for later use. We propose to revise § 5.0 (the scope provision for part 5), as initially proposed in AL87, 71 FR 16464, Mar. 31, 2006, to direct that any new claims for death compensation or actions concerning death compensation benefits be adjudicated under part 3. We propose to retain provisions regarding death compensation in subpart L because a death compensation beneficiary may still elect to receive dependency and indemnity compensation instead.

Removal of Spanish-American War Death Pension Provisions

There is currently one beneficiary receiving a Spanish-American War death pension. Therefore, the provisions concerning Spanish-American War death pensions should not be carried forward to part 5. Instead, we propose to remove the Spanish-American War death pension provisions initially proposed in AL83 (§§ 5.460(c) and 5.462). 69 FR 77578, Dec. 27, 2004. We propose to reserve § 5.462 for later use. In addition, we propose to change initially proposed § 5.0 (the scope provision for part 5) as proposed in AL87, 71 FR 16464, Mar. 31, 2006, to direct that any new claims or actions concerning Spanish-American War death pension benefits be adjudicated under part 3.

Change in Titles of Certain VA Officials

Effective April 11, 2011, VA reorganized its Compensation and Pension Service by dividing it into several smaller entities, including the Compensation Service and the Pension and Fiduciary Service. We propose to update these terms throughout part 5.

VI. Subpart A: General Provisions AL87

In a document published in the

Federal Register

on March 31, 2006, we proposed to revise Department of Veterans Affairs (VA) regulations concerning general compensation and pension provisions.

See

71 FR 16464. We provided a 60-day comment period that ended May 30, 2006. We received submissions from seven commenters: Paralyzed Veterans of America, Disabled American Veterans, Disabled American Veterans Chapter 57, Vietnam Veterans of America, National Organization of Veterans' Advocates, and two members of the general public.

§ 5.0 Scope and Applicability

In the NPRM, we identified proposed § 5.0 as a new regulation in the derivation table. 71 FR 16465-16466, Mar. 31, 2006. However, initially proposed § 5.0 is derived from § 3.2100, which governs the applicability of rules in one subpart of 38 CFR part 3. Section 5.0(a) states a similar applicability provision for all of part 5, with only minor revisions to conform it to the part 5 formatting and numbering. The derivation and distribution tables are corrected accordingly.

To provide a smooth transition from part 3 to part 5 we propose to add a new paragraph (b) to initially proposed § 5.0 establishing the applicability date for part 5. We propose two rules to govern the applicability date of part 5, and two rules to state the different situations in which part 3 would still apply. These rules would make it clear that part 5 will apply prospectively, but not retroactively.

To have part 5 apply immediately to all pending cases would require readjudication of thousands of claims (e.g. those where a decision has been rendered by the agency of original jurisdiction and the appeal period has not expired), which would significantly delay processing new claims being filed with VA. We believe that our proposed applicability structure will be the most efficient way to transition from part 3 to part 5 and is clear both to VA employees and to the members of the public who use VA regulations.

We propose to have part 3 continue to apply to all death compensation and Spanish-American War benefits. As explained in detail later in this preamble, these two benefit programs have very limited numbers of beneficiaries or potential claimants, and these claims can continue to be processed under part 3, so there is no need to include them in part 5.

To ensure that users of part 3 are aware of part 5's applicability, we propose to add a new § 3.0 to 38 CFR part 3. This section will be titled Scope and applicability and will state that part 5, not part 3, will apply to claims filed on or after the effective date of the final rule.

We note that part 5 is not a “liberalizing VA issue approved by the Secretary or at the Secretary's direction” under § 5.152 with regard to a claim that was filed while part 3 was still in effect for new claims. That is because part 5 does not apply to a claim that was filed while part 3 was still in effect for new claims. Therefore, part 5 cannot be liberalizing with respect to such a claim.

§ 5.1 General Definitions

Initially proposed § 5.1, included the following definition of the term “agency of original jurisdiction”: “

Agency of original jurisdiction

means the VA activity that is responsible for making the initial determination on an issue affecting a claimant's or beneficiary's right to benefits.” In the preamble to the AL87 NPRM, we noted that this definition differed somewhat from a definition of the same term in 38 CFR 20.3(a), which reads as follows: “

Agency of original jurisdiction

means the Department of Veterans Affairs activity or administration, that is, the Veterans Benefits Administration, Veterans Health Administration, or National Cemetery Administration, that made the initial determination on a claim.” We stated that, “The difference is because of the narrower scope of part 5 and because the definitions in § 20.3 apply in an appellate context while the definitions in proposed § 5.1 do not.”

Notwithstanding our initially proposed reason for creating a different definition, we have determined that it is unnecessary because the § 20.3(a) definition will work well in part 5. Moreover, having two different definitions, even if the two are substantially the same, could cause a reader to mistakenly believe that VA intends to define “agency of original jurisdiction” differently depending on whether a case is pending at a VA regional office or at the Board of Veterans' Appeals (the Board). We therefore propose to replace the definition from the AL87 NPRM with the § 20.3(a) definition.

In response to RIN 2900-AM05, “Matters Affecting Receipt of Benefits”, we received several comments on our proposed definitions of “willful misconduct”, “proximately caused”, and “drugs”. 71 FR 31056, May 31, 2006. Because these terms apply to several different subparts in part 5, we propose to move them to § 5.1 and will therefore discuss these comments in connection with § 5.1 below.

In proposed rulemaking RIN 2900-AM16, VA Benefit Claims, we initially proposed definitions of “application” and “claim”, to be added to § 5.1, “General definitions”. 73 FR 20138, Apr. 14, 2008. In that rulemaking, we proposed that, “

Application

means a specific form required by the Secretary that a claimant must file to apply for a benefit” and “

Claim

means a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.”

In responding to this comment, we determined that we had used the terms “file” and “submit” interchangeably in the NPRMs. We note that other provisions in title 38 use “submit” or variants thereof with respect to the presentation of evidence.

See

proposed 38 current 38 CFR 3.103(b)(2), 3.203(c), and 20.1304. We note also that there is a reasonable basis for using “file” in relation to documents initiating claims and appeals and “submit” in relation to presentation of evidence: it appears that Congress has used the term “file” only in relation to documents that have procedural significance in terms of initiating claims or appeals.

See

38 U.S.C. 5101(a), 7105(b), (c), and (d)(3). In referring to the presentation of evidence, Congress has used a variety of other terms, such as “submit[ ]” (38 U.S.C. 108(b)), “furnish” (sec. 5101(c)), “provide[ ]” (sec. 5103), or “present[ ]” (sec. 5108). Further, it is possible that “file” may suggest a requirement for a written submission—which is appropriate for claims, notices of disagreement, and substantive appeals—whereas “submit” would include oral presentation of evidence at a hearing. For these reasons, we propose throughout part 5 to use “file” in relation to documents initiating claims and appeals and “submit” in relation to presentation of evidence.

One commenter commented on our initially proposed definition of “claimant,” which stated that, “any person applying for, or filing a claim for, any benefit under the laws administered by VA”, noting that the term “claim” has a different meaning than “application”. The commenter noted that a claim does not end with the disposition of the application and that there may be subsequent administrative actions in a claim which were not initiated by any application and action by the claimant. The commenter did not address the substance of our definitions nor did the commenter suggest any revisions. For the reasons set forth in the preamble to proposed AM16, our definitions of “application” and “claim” reflect the distinctions described by the commenter. We therefore propose to make no changes based on the comment.

One commenter objected to the scope of our definition of “claimant”, noting that Congress, in 38 U.S.C. 5100, restricted the definition of “claimant” to 38 U.S.C. chapter 51. The commenter asserted that VA should restrict its definition to 38 CFR part 5. The commenter then noted that 38 U.S.C. 7111 also uses the word “claimant” in connection with a review of a Board decision on grounds of clear and

unmistakable error. The commenter asserted that, in 38 U.S.C. 7111, the person whose file is under review is not a claimant.

The first phrase of § 5.1 states that, “The following definitions apply to this part”. Although other parts of 38 CFR may adopt the definitions used in part 5 by expressly stating so, the definitions we provided in § 5.1 are restricted by this phrase to use in part 5 unless adopted in other parts. The situation described by the commenter (concerning the person whose file is being reviewed by the Board) is not related to this rule because it concerns 38 CFR part 20. As stated above, the regulation as initially proposed already restricts the application of the definition of claimant to part 5.

Based on this comment, however, we propose to narrow the definition of “claimant” to “a person applying for, or filing a claim for, any benefit under this part.” Because § 5.1 applies only to part 5, it is beyond the scope of this section to include as a part 5 claimant a person who is seeking VA benefits under another part of title 38 CFR, such as health care. For the same reason, we propose to make similar changes to our definitions of “claim”, “beneficiary”, and “benefit”.

We propose to add the definition of “custody of a child,” which means that a person or institution is legally responsible for the welfare of a child and has the legal right to exercise parental control over the child. Such a person or institution is the “custodian” of the child. This definition is consistent with the definition of “child custody” in 38 CFR 3.57(d) and with current VA practice and usage in 38 CFR part 3.

In AM05, § 5.661(a)(3), we initially proposed to define the term “drugs” as “prescription or non-prescription medications and other substances (e.g., glue or paint), whether obtained legally or illegally.” The definition is now proposed in § 5.1. A commenter suggested an amendment to this definition. The commenter asserted that the definition should include the word “chemical” because in the commenter's view, “chemical” abuse also causes euphoria and “chemicals” are widely abused. Our initially proposed definition used the term “other substances” to describe the chemicals discussed by the commenter. We intended our definition to include organic substances, such as hallucinogenic mushrooms, and all other substances that may be abused to cause intoxication.

In reviewing this comment, we determined that the “other substances” language of our definition may have been overly broad. For instance, it might be misconstrued to include any substance, for example, water. In order to avoid this potential misinterpretation, we propose to modify our basic definition of drugs to read as follows: “chemical substances that affect the processes of the mind or body and that may cause intoxication or harmful effects if abused.” The language about affecting the mind or body is taken from “Dorland's Illustrated Med. Dictionary” 575 (31st ed. 2007). We propose to add the language about intoxication or harmful effects to ensure that we exclude items which technically are chemical substances that might affect the mind or body (for example, commercially prepared prune juice), but do not cause intoxication or harmful effects. We propose to add a second sentence to incorporate important concepts already stated in the initially proposed definition: that our definition includes prescription and non-prescription drugs and includes drugs that are obtained legally or illegally.

Another AM05 commenter stated that the phrase “obtained legally or illegally” was unnecessary and contained a negative implication. The commenter recommended saying, “however obtained” instead. We used the phrase “obtained legally or illegally” because as we stated in the NPRM, this phrase is sufficiently broad to cover all the means of obtaining drugs or other substances. We used the phrase “obtained legally or illegally” to ensure that the regulation makes clear that a properly prescribed drug, obtained legally, may be abused such as to cause intoxication and thus proximately cause injury, disease, or death. We propose to make no changes based on this comment because the recommended change would not make clear that the abuse of legally obtained drugs is also considered drug abuse constituting willful misconduct under § 5.661(c).

We do propose, however, to change “and drugs that are obtained legally or illegally” to “whether obtained legally or illegally.” This makes it clearer that “legally or illegally” applies to how prescription and non-prescription drugs are obtained. The language initially proposed could be misread to mean that there are four distinct categories of drugs, prescription, non-prescription, legally obtained, and illegally obtained. “Whether obtained legally or illegally” makes it clear that there are two categories, prescription and non-prescription, either of which could be obtained legally or illegally.

We propose to define “effective the date of the last payment” as paragraph (s) in § 5.1. This term is commonly used in part 3 as “effective date of last payment”, but not defined in part 3. In certain cases of reduction, suspension, or discontinuance of benefit payments, VA adjusts payments effective the date of the last payment of benefits. This means that “VA's action is effective as of the first day of a month in which it is possible to suspend, reduce, or discontinue a benefit payment without creating an overpayment.” We are adding the word “the” before “date” and “last” for clarity.

One commenter noted that the definition of “fraud” depended on where in the regulations it was used. This commenter expressed the opinion that the meaning of a word in a statute is presumed to be the common law meaning unless Congress has plainly provided otherwise. The commenter then expressed the opinion that none of the definitions of fraud presented in initially proposed § 5.1 incorporate all the common law aspects of fraud, especially the requirement for proof of fraudulent intent and the requirement for proof by clear evidence.

We first note that Congress has specifically defined “fraud” in 38 U.S.C. 6103(a) for purposes of forfeiture of benefits. We incorporated that definition in paragraph (1) of our initially proposed definition of fraud and then proposed to make it VA's “general definition” of fraud. In reviewing our definition based on this comment, we have determined that there is no need for a general definition of fraud, since the term is only used in the context of forfeiture. We therefore propose to limit the scope to instances of forfeiture.

Regarding the commenter's assertion regarding common law, we note that the five elements of common law fraud are: (1) A material misrepresentation by the defendant of a presently existing fact or past fact; (2) Knowledge or belief by the defendant of its falsity; (3) An intent that the plaintiff rely on the statement; (4) Reasonable reliance by the plaintiff; and 5) Resulting damages to the plaintiff.

See

100 Am. Jur. Proof of Facts 3d section 8. The intent element of the common law definition of fraud relates to the defendant's desire for the plaintiff's reliance on the statement, while the material misrepresentation only requires that the person committing the fraud have a knowledge or belief that the statement is false.

As stated above, our proposed definition of fraud in § 5.1 now relates only to forfeiture and is consistent with the applicable statute. There is no requirement that our definitions in § 5.1 conform to the common law definition.

Veterans benefits and the body of law VA applies are often very different from the common law. Moreover, the intent requirement described in the third common law element above is contained in § 5.1 in the language requiring an “intentional” misrepresentation or failure to disclose pertinent facts “for purpose of obtaining” the specified objective.

Although some State jurisdictions require “clear” or “clear and convincing” evidence of fraud in various contexts, the Supreme Court has stated that “Congress has chosen the preponderance standard when it has created substantive causes of action for fraud.”

Grogan

v.

Garner,

498 U.S. 279, 288 (1991). Congress should not be presumed to have intended a higher standard of proof where it has not specified such a standard.

See id.

at 286;

Thomas

v.

Nicholson,

423 F.3d 1279, 1284 (Fed. Cir. 2005). The definitions in these rules implement statutes that do not specify a higher standard of proof, and our general rules for evaluating evidence will suffice in determinations concerning fraud. Since we already include an intent element where it is appropriate and our standards of proof are appropriate for our decisions, we propose to make no changes based on this comment.

We propose to remove the definitions for “in the waters adjacent to Mexico” and “on the borders of Mexico”. Both of these phrases applied to determining entitlement to benefits for the Mexican Border War. There are no surviving veterans of this war, so the definitions are no longer necessary.

We initially proposed to define “notice,” now proposed § 5.1, as “written notice sent to a claimant or beneficiary at his or her latest address of record, and to his or her designated representative and fiduciary, if any.” In reviewing this definition to respond to a comment, we determined that limiting this definition only to written communications could create unintended problems. In

Paralyzed Veterans of America

v.

Sec'y of Veterans Affairs,

345 F.3d 1334, 1349 (Fed. Cir. 2003), the court held that the requirement in 38 U.S.C. 5103A(b)(2) that VA “notify” a claimant of VA's inability to obtain certain evidence may be satisfied by either written or oral notice. The court noted that “[i]t is certainly not unreasonable, in our view, for VA to retain the flexibility to provide oral rather than written notice, as it is clear that under certain circumstances oral notice might be the preferred or more practicable option.” In addition, there may be other situations besides those involving section 5103A(b)(2) where written notice is not practicable and that it would not be desirable to limit the definition of “notice” to only written communications. When a specific statute or regulation requires written notice, we propose to signify that in part 5 by using the term “written” in that specific context (e.g., § 5.83(b) based on § 3.103(a) and (b)).

In addition, we have determined that the use of the defined term as part of the definition is not useful to the reader. The term “notice” is more accurately defined as a “communication,” as opposed to a “notice.” We, therefore, propose to define “notice” as either:

• A written communication VA sends a claimant or beneficiary at his or her latest address of record, and to his or her designated representative and fiduciary, if any; or

• An oral communication VA conveys to a claimant or beneficiary.

Additionally, we propose to add the definition of “payee”. This term is used throughout part 5. We propose to define this term in § 5.1 as a person to whom monetary benefits are payable.

One AM05 commenter disagreed with our initially proposed definition of “proximately caused”. This commenter also disagreed with including a definition of “proximate cause” in the regulation, stating that the concept has a long history and that for VA to select one definition narrows the concept, which may not work in the favor of veterans. The commenter also objected to restricting the definition to the second definition found in “Black's Law Dictionary” 213 (7th Ed. 1999).

It is necessary to define “proximately caused” because it has many definitions, as the commenter noted. Moreover, we do not believe the concept is well-known by the public. Claimants, beneficiaries, veterans' representatives, and VA employees are the primary users of regulations. It is important that we choose one definition, to ensure a common understanding of our regulations and to ensure that all users apply them the same way.

We selected the second definition of “proximately caused” from “Black's Law Dictionary” 234 (7th ed. 1999) (the same definition is used in the 8th Edition (2004) and the 9th Edition (2009)), because that definition most closely reflects the way VA and the U.S. Court of Appeals for Veterans Claims (CAVC) apply the concept.

See,

for example,

Forshey

v.

West,

12 Vet. App. 71, 73-74 (1998) (“ `Proximate cause' is defined as `that which, in a natural continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would not have occurred.' “Black's Law Dictionary” 1225 (6th ed.1990).”). We chose not to adopt the first definition because it deals with liability and the VA system is not a tort-claims system. Congress has specified different court procedures for tort actions. We therefore propose to make no changes based on this comment.

We propose to add a definition of “psychosis” as § 5.1 because other part 5 regulations use the term. The definition is based on 38 CFR 3.384, which defines it as any of the following disorders listed in Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision, of the American Psychiatric Association (DSM-IV-TR):

• Brief Psychotic Disorder;

• Delusional Disorder;

• Psychotic Disorder Due to General Medical Condition;

• Psychotic Disorder Not Otherwise Specified;

• Schizoaffective Disorder;

• Schizophrenia;

• Schizophreniform Disorder;

• Shared Psychotic Disorder; and

• Substance-Induced Psychotic Disorder.

We propose to add definitions of the terms “service-connected”, § 5.1, and “nonservice-connected” as § 5.1. Both of these definitions are identical to those in 38 U.S.C. 101(16) and (17), except that we use the term “active military service” in lieu of the longer term “active military, naval, or air service”.

See

69 FR 4820, Jan. 30, 2004.

We initially proposed a definition of “service medical records” in § 5.1. We now propose to change the defined term to “service treatment records”, now § 5.1. The Benefits Executive Council, co-chaired by senior VA and Department of Defense (DoD) officials, formally changed the term for a packet of medical records transferred from DoD to VA upon a servicemember's release from active duty. Specifically, they found that VA, the reserve components, and all of the military services, used approximately 20 different phrases for what VA referred to as “service medical records”. They concluded that this inconsistent use of terminology was a contributing factor in the fragmented processing of medical records. This proposed change would implement the Benefits Executive Council's directive.

We omitted the Canal Zone from the initially proposed definition of “State” in § 5.1, because § 3.1(i) does not include the Canal Zone in its definition of “State”. However, 38 U.S.C. 101(20) defines “State” to include “For purpose of section 2303 and chapters 34 and 35 of this title, such term also includes the Canal Zone.” To correct this omission,

we propose to revise the definition of “State” in proposed § 5.1 to include the Canal Zone “for purposes of 38 U.S.C. 101(20), and 38 U.S.C. chapters 34 and 35”.

We propose to add a definition of “VA”, as § 5.1, that is consistent with current 38 CFR 1.9(b)(1) and 38 U.S.C. 101.

Regarding our initially proposed definition of “willful misconduct”, an AM05 commenter suggested revising the last sentence of initially proposed § 5.661(a)(1) from, “A mere technical violation of police regulations or other ordinances will not by itself constitute willful misconduct”, to, “A mere technical violation of police regulations or any local ordinances, including those under police, city or county authority, will not by itself constitute willful misconduct.” Another commenter expressed the opinion that the use of the word “other” before the word “ordinances” may be misunderstood to refer to a state's general police power to make and enforce laws. We propose to clarify the rule based on these comments for the reasons discussed below.

The definition of “ordinance” includes city or county authority. The word “ordinance” is defined as, “An authoritative law or decree; esp., a municipal regulation.” “Black's Law Dictionary” 1208 (9th ed. 2009). “Municipal” is defined as, “1. Of or relating to a city, town or local government unit. 2. Of or relating to the internal government of a state or nation.”

Id.

at 1113.

In most municipalities, the police department establishes regulations relating to parking, street usage, and other similar civil issues. The use of the phrase “police regulations” is intended to express the idea that a violation of these types of regulations will not be used as the grounds for a finding of willful misconduct. Violations of these regulations are “civil infractions”. An “infraction” is “[a] violation, usually of a rule or local ordinance and usually not punishable by incarceration.” “Black's Law Dictionary” 850 (9th ed. 2009). A civil infraction is “An act or omission that, though not a crime, is prohibited by law and is punishable.”

Id.

Since that term is not readily understood by most of the general public, parenthetical explanations following the use of the term will clarify the meaning for most people. We propose to revise the last sentence of what was initially proposed § 5.661(a) to read, “Civil infractions (such as mere technical violation of police regulations or other ordinances) will not, by themselves, constitute willful misconduct.” We are proposing to make this change to ensure that civil infractions, while prohibited by law, do not by themselves deprive an otherwise entitled veteran to benefits. We now propose to incorporate this provision into § 5.1.

The second sentence of initially proposed § 5.661(a)(2) read: “For example, injury, disease, or death is proximately caused by willful misconduct if the act of willful misconduct results directly in injury, disease, or death that would not have occurred without the willful misconduct.” We have determined that this statement is unnecessary because § 5.1 already defines “proximately caused”, so we propose to remove the example.

One commenter expressed the opinion that a VA determination of “willful misconduct” is a quasi-criminal determination. This commenter stated that the preponderance of the evidence standard is not appropriate in adjudicating a quasi-criminal determination. The commenter asserted that the preponderance of the evidence standard of proof for willful misconduct determinations was too low because a determination of willful misconduct essentially bars a veteran or claimant from receiving benefits based on the veteran's service. The commenter asserted that this deprived the veteran or claimants claiming entitlement based on a veteran's service of procedural due process under the Fifth Amendment to the U.S. Constitution. The commenter expressed the opinion that VA should instead establish the clear and convincing evidence standard as the standard of proof in making willful misconduct determinations. The commenter noted that the U.S. Supreme Court has stated that a principal function of establishing a standard of proof is “to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.”

Addington

v.

Texas,

441 U.S. 418, 423 (1979).

The commenter acknowledged that VA had adopted the standard of proof articulated by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in

Thomas,

423 F.3d 1279. The commenter also noted that VA has the authority to adopt a different standard notwithstanding the standard adopted by the Federal Circuit, as explained by the Supreme Court in

Nat'l Cable & Telecomms. Ass'n

v.

Brand X Internet Servs.,

545 U.S. 967, 969-70 (2005) (finding that an agency could, through publication of a regulation, adopt an interpretation of a statute that was different than the interpretation of the same statute made by a court if the statute was ambiguous and the court's interpretation was not the only permissible interpretation of the statute).

The commenter noted that the Federal Circuit found in

Thomas

that the statute did not contain a standard of proof and that VA had not, by regulation, imposed a standard of proof.

See

423 F.3d at 1283-84. The Federal Circuit then found that the Board's and the U.S. Court of Appeals for Veterans Claims' decisions to apply the preponderance of the evidence standard were supported by their stated reasons and bases.

Id.

at 1284-85. The commenter noted that the

Nat'l Cable & Telecomms. Ass'n

Court found that even if a court has established a standard of proof as a gap-filling measure, an agency may still establish a different standard of proof to fill gaps in a statute by regulation if the agency decides that the court's determination of a standard of proof is not in accordance with the agency's policies or does not align with the agency's perception of Congressional intent.

VA does not equate administrative willful misconduct determinations with quasi-criminal proceedings and decisions. VA administrative procedures for determining entitlement to benefits are non-adversarial and pro-claimant, in contrast to criminal proceedings. Attempts to categorize the administrative entitlement decisions made by VA as quasi-criminal proceedings characterize both the claimants and the VA administrative process incorrectly. While the commenter does not fully explain what was meant by “quasi-criminal” proceedings, we note that unlike criminal proceedings, VA has no authority under these regulations to fine, imprison, or otherwise impose punishment on a claimant. VA administratively decides entitlement to benefits in accordance with the duly enacted statutes of Congress. We do not follow the procedures used in either criminal or civil courts.

A decision that a disability was the result of willful misconduct only prohibits service connection for the disability or death incurred as a result of the willful misconduct. Contrary to the commenter's assertion, a veteran or a claimant claiming entitlement based on a veteran's service does not lose entitlement to all benefits. A decision that willful misconduct caused a disability results in essentially the same consequences as a decision that an injury or disease was not incurred in service. Service connection for that disability or death is not granted. In making a determination that the

disability was due to willful misconduct, the veteran or a claimant claiming entitlement based on a veteran's service is notified of the information or evidence needed to substantiate the claim, of the decision on the claim, and of their appellate rights.

Additionally, there is no violation of the Fifth Amendment through application of the preponderance of the evidence standard to willful misconduct decisions. Since the commenter merely asserted a violation of the Fifth Amendment without explaining how the use of any one particular standard of proof could violate the due process provision of the Fifth Amendment, we are unable to respond more fully to this comment and propose to make no changes based on this comment.

VA does not need to decide if the commenter's reasoning concerning adoption of a standard of proof differing from that found by the court in

Thomas

is correct. After reviewing the various standards of proof, we have determined that the preponderance of the evidence standard is the appropriate standard of proof to prove willful misconduct, except as otherwise provided by statute. We provided our reasons for selecting this standard of proof in the NPRM that proposed this segment of part 5.

See

71 FR 16470, Mar. 31, 2006. The preponderance of the evidence standard provides that if the evidence demonstrates that it is more likely than not that a fact is true, the fact will be considered proven. This is an appropriate standard to apply to the administrative decisions we propose to make in connection with veterans' benefits.

We propose to move the definitions of “accrued benefits”, “claim for benefits pending on the date of death”, and “evidence in the file on the date of death” from § 5.550 to § 5.1. A comment to RIN 2900-AL71 “Accrued Benefits and Special Rules Applicable Upon Death of a Beneficiary”, raised questions concerning the initially proposed definition of “accrued benefits”. Based on that comment, we made technical revisions to clarify the definition, and also made the following revisions.

The last sentence of initially proposed § 5.550(d) (definition of ”[c]laim for benefits pending on the date of death”) read, “[a]ny new and material evidence must have been in VA's possession on or before the date of the beneficiary's death.” One commenter, responding to RIN 2900-AL71 “Accrued Benefits and Special Rules Applicable Upon Death of a Beneficiary”, suggested that VA should clarify this sentence by inserting the phrase “used to reopen the claim” between the words “evidence” and “must”. The commenter was concerned that the proposed language would deter a deceased beneficiary's survivor from filing existing additional evidence in support of a claim for accrued benefits. However, because a claim for accrued benefits must be granted based on evidence in the file on the date of death, such additional evidence would not be considered in deciding the claim. Nevertheless, to avoid any potential confusion we propose to add “submitted to reopen the claim” between “evidence” and “must”. We propose to use “submitted” rather than “used” because the later implies that VA will always find that the evidence was new and material.

We made additional revisions to the definition of “claim for benefits pending on the date of death” for both readability and consistency purposes. One such revision is that we replaced the initially proposed term “finally disallowed claim” with “finally denied claim” and reorganized the sentence structure with respect to new and material evidence.

§ 5.2 Terms and Usage in Part 5 Regulations

38 CFR part 3 uses both singular and plural nouns to refer to a single, regulated person. For example, § 3.750(b)(2) refers to “

a veteran

with 20 or more years of creditable service”, while § 3.809(a) refers to “

veterans

with wartime service” (emphasis added). This inconsistent usage could confuse readers so we propose to use only singular nouns to refer to a particular regulated person. We propose to state in previously reserved § 5.2 that a singular noun that refers to a person is meant to encompass both the singular and plural of that noun. For example, the term “a surviving child” would apply not only to a single surviving child, but also to multiple surviving children. Where a provision is meant to apply only to a group of people (for example, the division of benefits between a surviving spouse and children), we will indicate this by using a plural noun to refer to the regulated group of people. Similarly, we will use a plural noun when referring to a specific, identified group of people.

See,

for example, § 5.27, “Individuals and groups designated by the Secretary of Defense as having performed active military service.”

§ 5.3 Standards of Proof, and Comments on Definitions of Evidentiary Terms

One commenter suggested that VA should include additional definitions in § 5.1. The commenter suggested that “evidence” should be defined as “all the means by which any alleged matter of fact, the truth of which is submitted to an adjudicator, is established or disproved.” The commenter went on to state that, “Evidence includes the testimony of witnesses, introduction of records, documents, exhibits, objects, or any other probative matter offered for purpose of inducing a belief in the contention by the fact-finder” and that, “evidence is the medium of proof”. The commenter opined that defining “evidence” would assist an unrepresented claimant in understanding the term and would inform claimants that some materials he or she submitted would not be evidence (such as arguments, assertions, and speculations).

This commenter asserted that after we define “evidence”, we should define “relevant evidence” and “probative evidence”, as follows:

Relevant evidence

means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the matter more probable or less probable than it would be without the evidence.

Probative evidence

is evidence that tends to prove a particular proposition or to persuade a trier of fact as to the truth of an allegation.

The commenter asserted that this would enable the claimants to understand what evidence should be submitted in order for the claimants to succeed with their claims for benefits.

We propose to make no changes based on these comments. We do not believe that there is a significant need to define the referenced terms, and there is some risk that such definitions would be misinterpreted as limiting the types of items a claimant may file or that VA will consider. Except as to claims based on clear and unmistakable error, VA is required to consider all material filed.

See

38 U.S.C. 5107(b) (“The Secretary shall consider all information and lay and medical evidence of record in a case”). Defining “evidence” as suggested might discourage claimants from filing arguments or other information and statements.

The dictionary definition of “evidence” is “something that furnishes proof.” “Merriam-Webster's Collegiate Dictionary” 433 (11th ed. 2006). VA does not use the word in a manner different from this ordinary or natural definition: “When a word is not defined by statute, we normally construe it in accord with its ordinary or natural meaning.”

Smith

v.

United States,

508 U.S. 223, 228 (1993). This concept applies equally to regulations. Thus, it is not necessary to define words used in a regulation when the words are used in

accord with their ordinary or natural meaning. The commenter's suggested definitions of “credibility”, “determination”, “material”, “matter”, “proof”, and “testimony” are likewise not needed.

The suggested definitions of “relevant evidence” and “probative evidence” are also not necessary. As explained below, the definition of “competent evidence” will be helpful to claimants because VA may in individual cases inform the claimant of the need for competent medical expert evidence on some issues. However, definitions that appear to delineate other categories of evidence, such as “relevant evidence” and “probative evidence” may be confusing to claimants and appear to suggest restrictions on the types of evidence claimants may file or that VA will consider. It is generally to the claimants' advantage to file all information and evidence they have that have potential bearing upon the issues in their claim. Introducing definitions of “relevant evidence” and “probative evidence” might create confusion and discourage claimants from filing all information and evidence that they might otherwise file.

The same commenter urged VA to adopt a certain definition of the term “probative value of evidence”, namely “the tendency, if any, of the evidence to make any fact of consequence in the determination of the matter more or less probable than it would be without the evidence.” However, the commenter did not specifically state why VA should adopt a definition of that term, but focused instead on the suggestion that VA define the distinct but related term “probative evidence”. For the same reasons that we propose not to define “probative evidence”, we propose not to define “probative value of evidence”.

This commenter also suggested we adopt a definition of the word “issue” as “a single, certain point of fact or law that is important to the resolution of a claim for veterans' benefits.” The commenter noted that this word is used in 38 U.S.C. 5107(b). The commenter opined that because Congress used this word in the statute, we must define the word. The commenter similarly opined that § 5.3(b), “Proving a fact or issue”, is confusing because we did not define the word “issue” in § 5.1. The commenter suggested that we used the words “issue” and “fact” as unrelated concepts. The commenter then reasoned that, since the statute did not use the word “fact”, VA may not have authority to include that word in the regulations, noting the canon of “expressio unius est exclusio alterius” (“to express or include one thing implies the exclusion of the other, or of the alternative”, “Black's Law Dictionary” 661 (9th ed. 2009)).

The commenter is correct that the word “issue” is used in 38 U.S.C. 5107(b), but the word is also used in other places in title 38, often with a different meaning.

See,

for example, 38 U.S.C. 5112(b)(6) and 5110(g). The word “issue” is used within part 5 with at least three different meanings.

See,

for example, §§ 5.82(d), 5.103(e), 5.133(b), and 5.152. VA's policy is to broadly interpret 38 U.S.C. 5107(b), such that the benefit of the doubt applies both to the ultimate “issue” in a case (for example, whether to award benefits) but also to individual issues of material fact (for example, whether a particular event occurred). Therefore, we propose to revise §§ 5.1 and 5.3 to refer, where appropriate, to both questions of fact and the resolution of issues.

The same commenter urged VA to adopt a definition of the term “presumption”. In § 5.260(a) of our proposed rule, “Presumptions of Service Connection for Certain Disabilities, and Related Matters”, we clearly described the meaning of the term in the veterans benefits context: “A presumption of service connection establishes a material fact (or facts) necessary to establish service connection, even when there is no evidence that directly establishes that material fact (or facts)”. 69 FR 44624, July 27, 2004. We therefore propose to make no changes based on this comment.

The same commenter urged VA to adopt a definition of “rebuttal of a presumption”. Section 5.3(c), which states, “A presumption is rebutted if the preponderance of evidence is contrary to the presumed fact”, in effect defines the term already so we decline to make any changes based on this comment.

The same commenter urged VA to adopt a definition of “weight of [the] evidence”, a term which was used in initially proposed § 5.3(b)(1) and (3). We agree that such a definition would be helpful to readers and we therefore propose to add the following definition in § 5.3(b)(1), “

Weight of the evidence,

means the persuasiveness of some evidence in comparison with other evidence.” “Black's Law Dictionary” 1731 (9th ed. 2009). With this addition, initially proposed paragraphs (b)(1) through (5) are redesignated as paragraphs (b)(2) through (6), respectively.

One commenter noted that 38 U.S.C. 5107(b) contains the language “approximate balance of positive and negative evidence” and that the regulation that VA proposed to adopt to implement section 5107(b) did not attempt to give any meaning to the statutory terms “positive and negative evidence”. The commenter asserted that these two statutory terms have known “legal” meaning and that VA must define “positive evidence” and “negative evidence” in order to give full force and effect to section 5107(b).

We did not define the terms “positive evidence” and “negative evidence” in initially proposed § 5.1 because we did not use those terms in initially proposed § 5.3(b)(2), which implements section 5107(b). Instead, we described “evidence in support of” and “evidence against” a matter. This interpretation of the statute is consistent with the clear and unambiguous meaning of the statute.

See,

for example,

Ferguson

v.

Principi,

273 F.3d 1072, 1076 (Fed. Cir. 2001) (holding that section 5107(b) is “unambiguous” and upholding a decision not to apply the benefit-of-the-doubt-rule to a case where “there was more credible evidence weighing against the claim than supporting the claim”). We propose to make no changes based on this comment.

In § 5.3(a), we propose to revise the first sentence of the initially proposed paragraph by adding “material to deciding a claim”. In response to various comments concerning this proposed regulation, we noted that while we had adequately stated the general standards for proving facts and resolving issues, we had not included the reason for proving a fact.

Also in initially proposed § 5.3(a), “Applicability”, we stated, “This section states the general standards of proof for proving facts and for rebutting presumptions. These standards of proof apply unless specifically provided otherwise by statute or a section of this part.” In reviewing the initially proposed paragraph, we have decided to clarify that “a section” means another section besides § 5.3. We therefore propose to change “a section” to “another section”.

Initially proposed § 5.3(b)(1) (now § 5.3(b)(2)) stated, “

Equipoise

means that there is an approximate balance between the weight of the evidence in support of and the weight of the evidence against a particular finding of fact, such that it is as likely as not that the fact is true.” One commenter objected to the use of the word “equipoise” in § 5.3(b). The commenter noted that this word does not appear in 38 U.S.C. 5107(b), “Claimant responsibility; benefit of the doubt”. The commenter expressed the opinion that VA should remove this word and its definition and replace the word and definition with the exact language used in 38 U.S.C. 5107(b). The commenter

noted that “in attempting to define the meaning of the term `equipoise', the initially proposed regulation states that equipoise means there is an `approximate balance between the weight of the evidence in support of and the weight of the evidence against a particular finding of fact, such that it is as likely as not that the fact is true.' ” The commenter felt that by omitting the word “equipoise” and its definition, VA would avoid confusion and be consistent with the governing statute.

We propose to make no changes based on this comment. It is not necessary to use the exact language Congress used in drafting a statute in the wording of the regulations we promulgate. The Secretary has been directed by Congress to “prescribe all rules and regulations which are necessary or appropriate to carry out the laws administered by the Department.” 38 U.S.C. 501(a). We chose to use the word “equipoise” because as used and defined in § 5.3, it is a clear and concise term and has the same meaning as traditionally applied to the phrase used in 38 U.S.C. 5107(b), “approximate balance of positive and negative evidence”. Our use of this word is consistent with the governing statute.

Another commenter asserted that our definition of “equipoise” in initially proposed § 5.3(b)(1) (now § 5.3 (b)(2)) accurately restates the third sentence of § 3.102, but fails to accurately restate the second sentence, which emphasizes and makes clear that the balances are always to be resolved in favor of the veteran. The same commenter felt that the sentence in initially proposed § 5.3(b)(2) (now § 5.3(b)(3)) that read, “However, if the evidence is in equipoise and a fact or issue would tend to disprove a claim, the matter will not be considered proven”, contradicts the benefit of the doubt rule because the rule must “always be applied in favor of the veteran”. We propose to clarify the statement of the benefit of the doubt rule by revising the first sentence § 5.3(b)(3) to now state, “When the evidence is in equipoise regarding a particular fact or issue, VA will give the benefit of the doubt to the claimant and the fact or issue will be resolved in the claimant's favor.”

In reviewing initially proposed § 5.3(b)(1) (now § 5.3(b)(2)), we have determined that the phrase “such that it is as likely as not that the fact is true” might cause a reader to mistakenly believe that this is an additional requirement for triggering the “reasonable doubt” doctrine, over and above the requirement that there be an “approximate balance between the weight of the evidence in support of and the weight of the evidence against a particular finding of fact”. We therefore propose to remove the language “such that . . .” from this paragraph.

One commenter urged VA to use the current language of 38 CFR 3.102 in proposed § 5.3(b)(2). The commenter asserted that the use of the term “equipoise” in initially proposed § 5.3(b)(2) is adversarial and that the proposed rule would “restrict [veterans'] ability to put forth the best evidence and challenge the credibility [of] evidence which the VA accepts or denies.”

As discussed in the preamble to the NPRM, we are not substantively changing the provisions in current § 3.102. Instead, we are rewording and reorganizing them to make them easier for the reader to understand. We disagree that the changes described in the NPRM and in this rulemaking make these provisions adversarial, and we therefore propose to make no changes based on this comment.

Although we decline to make the changes to initially proposed § 5.3(b)(2) (now § 5.3(b)(3)) suggested by the commenter, in reviewing the first two sentences of that paragraph, we have determined that they can be clarified. Specifically, the initially proposed sentences could be misread to imply that evidence can be in equipoise regarding an issue and at the same time tend to prove or disprove a claim. As stated in 38 CFR 3.102, where the evidence is in equipoise, it “does not satisfactorily prove or disprove the claim”. We therefore propose to remove the potentially confusing language regarding “support” of a claim and “tend[ing] to disprove a claim”, and combined the two sentences into one. The new sentence now reads, “When the evidence is in equipoise regarding a particular fact or issue, VA will give the benefit of the doubt to the claimant and the fact or issue will be resolved in the claimant's favor.”

One commenter noted that the sentence in initially proposed § 5.3(b)(3) (now (b)(4)) lacked parallelism. We agree and propose to change the wording by adding the words “the weight of” before the words “the evidence against it.”

One commenter objected to the sentence in initially proposed § 5.3(b)(5) (now § 5.3(b)(6)): “VA will reopen a claim when the new and material evidence merely raises a reasonable possibility of substantiating the claim.” This commenter asserted that the “reasonable possibility of substantiating the claim” portion could be read by an adjudicator as requiring sufficient evidence to grant the claim. This commenter suggests adding language to ensure that the adjudicator does not equate the new and material evidence requirement to the evidence requirements needed to grant the claim.

We disagree that a VA decisionmaker would apply this sentence as requiring that the new and material evidence to reopen a claim also be sufficient to grant the claim. To the contrary, when read in conjunction with initially proposed § 5.3 (b)(2) (now § 5.3 (b)(3)), “Benefit of the doubt rule”, this sentence makes it very clear that a lower standard of proof is applied for reopening a claim than for granting a claim. We therefore propose to make no changes based on this comment.

One commenter objected to the general format of initially proposed § 5.3(b)(5) (now § 5.3(b)(6)) because the commenter asserted that there was a lack of emphasis on the different standard of proof used to determine whether evidence is new and material. The commenter asserted that the last sentence of the paragraph should be rewritten and moved to the front of the paragraph to add emphasis to the concept that the higher standard of proof does not apply when determining if the evidence is new and material.

We agree and we propose to change the sentence to read, “The standards of proof otherwise provided in this section do not apply when determining if evidence is new and material, but do apply after the claim has been reopened.” We propose to place this sentence as the first sentence of that paragraph, now designated as § 5.3(b)(6), to add emphasis to this provision.

One commenter noted that in § 5.3(c), we stated that, “A presumption is rebutted if the preponderance of evidence is contrary to the presumed fact.” The commenter stated that in 38 U.S.C. 1111, the evidence to rebut the presumption of sound condition when accepted and enrolled for service is specified as clear and unmistakable evidence, a standard higher than a preponderance of evidence. The commenter recommended inserting the phrase “Except as otherwise provided” at the beginning of the section.

We agree that the standard in § 5.3(c) applies to rebutting presumptions unless an applicable statute provides a different standard, such as in the example provided by the commenter. However, we already provided for the application of different standards in § 5.3(a) by stating, “These standards of proof apply unless specifically provided otherwise by statute or a section of this part.” Since the regulations already address the point raised by the

commenter, we propose to make no changes based on this comment.

Several commenters noted that under 38 U.S.C. 1113(a), a presumption can be rebutted only when “there is affirmative evidence to the contrary.” The commenters stated that the “affirmative evidence” requirement should be inserted into § 5.3(c). We disagree with the commenters. There are many statutes that govern the rebuttal of presumptions,

see,

for example, 38 U.S.C. 1111, 1132, and 1154(b), but the “affirmative evidence” requirement of section 1113(a) affects only presumptions related to diseases that are covered by proposed § 5.260(c). (We note that section 1113 does not affect the ALS presumption, which is also covered by § 5.260(c)). Hence, the affirmative evidence requirement appears in § 5.260(c), but not in the general rule that applies except as provided otherwise.

We agree with these assertions to the extent that we should retain the phrase “affirmative evidence” and propose to revise § 5.260(c)(2) to include the phrase “affirmative evidence”. We propose to revise § 5.260(c)(2), by replacing “Any evidence . . .” with “Affirmative evidence” in the beginning of the sentence. We also note that 38 U.S.C. 1116(f) requires “affirmative evidence” to rebut the presumption of exposure to herbicides in the Republic of Vietnam and so we now propose to insert that term into § 5.262(d).

We also propose to revise § 5.3(c) by adding a second sentence after the first sentence, that states, “In rebutting a presumption under § 5.260(c)(2), affirmative evidence means evidence supporting the existence of certain facts.” We have chosen this definition instead of one of the definitions recommended by the commenters because this is consistent with the definition of “affirmative” found in “Black's Law Dictionary”, 68 (9th ed. 2009).

In a related matter, comments on both RIN 2900-AL87, “General Provisions”, 71 FR 16464, Mar. 31, 2006, and on RIN 2900-AL70, “Presumptions of Service Connection for Certain Disabilities, and Related Matters”, 69 FR 44614, July 27, 2004, indicated the need for our rules to address the role of “negative” evidence, by which we mean an absence of evidence. An absence of evidence may be considered as evidence in support of, or weighing against, a claim. For example, an absence of evidence of signs or symptoms of a particular disability prior to service would support a veteran's claim that he incurred the disability during service. On the other hand, a lack of symptoms or complaints during service may indicate that the veteran was not disabled during service. An absence of evidence may also be used to rebut a presumption. The U.S. Court of Appeals for the Federal Circuit endorsed this view.

Maxson

v.

Gober,

230 F.3d 1330 (2000) (holding that VA may properly consider a veteran's entire medical history, including absence of complaints, in determining whether presumption of aggravation is rebutted). This evidence is generally one of the weaker forms of evidence, but it is nevertheless important to recognize the role that it may play in certain cases, particularly where there is little evidence to support a claim. Hence, we propose to add § 5.3 (e), which states, “VA may consider the weight of an absence of evidence in support of, or against, a particular fact or issue.”

One commenter expressed concern about how a VA decisionmaker would read § 5.3(d), “Quality of evidence to be considered”, in conjunction with § 5.1 that defines “competent lay evidence”. The commenter asserted that if he or she determined that the evidence did not fit within the definition of competent lay evidence or that lay evidence is generally not competent, he or she would be more likely to assess the evidence as adverse to the veteran.

The commenter's assumption is incorrect. Competent lay evidence may be neutral or may be favorable to the claimant. Such evidence may also be probative, depending on the claim to be adjudicated. We also do not agree that a VA decisionmaker would determine that lay evidence was generally not competent. We have provided for the determination of what makes lay evidence competent in the definition in proposed § 5.1. A VA decisionmaker's application of these provisions will lead the adjudicator to determine what is competent lay evidence and what is not. We propose to make no changes based on this comment.

In objecting to our initially proposed definitions of “competent expert evidence” and “competent lay evidence”, one commenter wrongly asserted that there are no such definitions in current VA regulations. In fact, as stated in the preamble of RIN 2900-AL87, these definitions are based on similar definitions in 38 CFR 3.159(a)(1) and (2).

The same commenter asserted that defining competent evidence would “cause the claims of veterans to be pre-judged by adjudicators and foster an adversarial climate in the claims process.” The commenter urged that, “Rather, all the evidence of record in each case should be judged on its own merits, and on the merits of the case as a whole.”

The commenter did not explain how our definitions of “competent expert evidence” and “competent lay evidence” have the adverse effects he predicts, and we disagree that they would have such effects. VA has applied substantially similar definitions since 2001. 38 CFR 3.159(a)(1) and (2);

see

66 FR 45630, Aug. 29, 2001. These definitions have not caused any such adverse effects, and the changes we are making to the definitions in § 5.1 will not either. We therefore propose to make no changes based on this comment.

One commenter expressed concern that by changing the definitions of “competent medical evidence” to “competent expert evidence” and “competent lay evidence” we were impermissibly amending § 3.159, “Department of Veterans Affairs assistance in developing claims.” The commenter expressed the concern that since these terms were originally adopted as part of that regulation, a change in the definitions would amend § 3.159 without providing public notice and the opportunity for public comment as required by 5 U.S.C. 553.

The commenter's concerns relate to the removal of part 3 when we adopt part 5. This rulemaking will not affect such a removal; nor will this rulemaking affect claims currently being adjudicated under part 3. The definitions in § 5.1 only apply to part 5, not to part 3. Hence, there is no basis for a concern that any action in this rulemaking will affect a part 3 rule.

One commenter opined that the definitions of “competent expert evidence” and “competent lay evidence” should be revised since neither definition focused on the relevance of the evidence. The commenter also asserted that neither definition correctly described “competent expert evidence” or “competent lay evidence”. The commenter believed that treatises, medical or scientific articles, and other writings are not “competent expert evidence” because they are not based on the author's personal knowledge of the specific facts of the veteran's particular case.

Although we do not agree with the suggestion that treatises, medical and scientific articles, and other writings of this type may never be “competent expert evidence”, the commenter raises a valid point. Treatises and similar writings may be “competent” in the sense that they state findings and opinions based on specialized training or experience and personal knowledge

of the facts on which such findings and opinions are based. However, it is misleading to equate treatises and similar writings with the types of expert evidence ordinarily provided in VA benefit claims. That is because medical treatises ordinarily recite facts or opinions derived apart from a particular veteran's case and thus are not based on personal knowledge of the facts of the veteran's case. The U.S. Court of Appeals for Veterans Claims has noted that treatise evidence is often too general or speculative to provide significant evidence concerning the cause of a particular veteran's disability.

See Sacks

v.

West,

11 Vet. App. 314, 316-17 (1998). Citing treatises as an example of competent expert evidence may mislead claimants to the belief that such treatises are the equivalent of medical opinions based on the specific facts of their case. While treatise evidence may in some situations be probative of the fact to be proved, and must always be considered by VA when presented in a case, we do not consider it helpful to cite such writings as representative examples of competent expert evidence. Thus, we propose to revise the definition as urged by the commenter by removing the reference to treatise evidence in the definition of “competent expert evidence”.

We propose not to revise the definitions to include a statement concerning the relevancy of the evidence. The relevance of the evidence depends on the facts in each case and is to be determined on a case-by-case basis by the VA employee charged with making the decision on the claim.

One commenter urged VA to define “competent evidence” in part 5 as, “evidence that has any tendency to make the existence of any fact that is of consequence to the determination of the matter more probable or less probable than it would be without the evidence.”

This suggested definition is actually more a definition of “probative evidence” than “competent evidence”. In fact, this same commenter urged VA to define “probative evidence” as “evidence that tends to prove a particular proposition or to persuade a trier of fact as to the truth of an allegation.” Since the suggested definition of competent evidence concerns evidence's probative value rather than its competence, we propose to make no changes based on the comment.

In our initially proposed definition of competent expert evidence, we stated, “Expert evidence is a statement or opinion based on scientific, medical, technical, or other specialized knowledge.” We propose to add “all or in part” after “based” because an expert opinion may also be based on the specific facts of a case. An example of such an opinion would be a doctor's opinion that general medical principles indicate that a particular injury would not likely have been aggravated under the facts of a particular case.

See Emenaker

v.

Peake,

551 F.3d 1332, 1335-37 (Fed. Cir. 2008).

The initial NPRM to § 5.3 explained why part 5 will not repeat the fifth sentence of § 3.102. 71 FR 16464 (Mar. 31, 2006). Section 5.3 would also not repeat the fourth sentence. It is unnecessary because, like the fifth sentence, it confusingly elaborates the idea of “approximate balance” of evidence, which 5.3(b)(2) through (5) do well without the confusing language of the fourth or fifth sentences of § 3.102.

§ 5.4 Claims Adjudication Policies

One commenter asserted that VA gives too much weight to medical exam reports prepared by VA doctors and insufficient weight to medical exam reports prepared by a veteran's own doctors. The commenter cited the example of VA giving more weight to the report of a VA doctor who examined him for less than an hour than to the medical records from his treating doctor covering a period of over 5 years. The commenter asserted that VA's over-reliance on its own medical exams is “VA policy” but is not “sound medical practice”. The commenter further asserted that when a VA medical exam is “poorly conducted and documented”, VA orders a second exam rather than rely on the treating doctor's records to decide the claim. The commenter urged VA to “establish a level of proof which meets the balance test of both patient history and proof of medical condition” and not rely on “an arbitrary, `snapshot' exam conducted in a VA hospital meaning more than years of records from the veteran's regular physician(s).”

We decline to make any changes based on this comment in the manner in which VA weighs medical evidence. VA often gives significant weight to an examination conducted, or a medical opinion provided by, a VA health care provider because they follow set procedures designed to elicit information relevant to the particular claim. However, as stated in 38 CFR 3.326(b), “Provided that it is otherwise adequate for rating purposes, any hospital report, or any examination report, from any government or private institution may be accepted for rating a claim without further examination.” Under 38 U.S.C. 5103A(d), VA must provide a medical examination or medical opinion in all disability claims when it is “necessary to make a decision on the claim”. Under this duty, VA regularly conducts specialized medical examinations of veterans' disabilities and often requests medical opinions on specific questions. If VA's adjudicator finds that such an exam or opinion is inadequate, he or she returns the case to the health-care provider and requests for an adequate one to be provided.

However, VA must also “consider all information and lay and medical evidence of record in a case”. 38 U.S.C. 5107(b). Another statute requires the Board of Veterans' Appeals to review appeals to the Secretary “based on the entire record in the proceeding and upon consideration of all evidence and material of record.” 38 U.S.C. 7104(a). This statute indicates that evidence is an element of a person's entire VA record. The statute prescribing that VA considers the “places, types, and circumstances” of a veteran's service when deciding a claim for service connection prescribes that VA consider “all pertinent lay and medical evidence”. 38 U.S.C. 5104(a). Although section 5104(a) could be interpreted to distinguish evidence from other documents in the record, VA regulations demonstrate that our actual practice is to review the entire record in every claim. The regulation implementing the benefit of the doubt rule of 38 U.S.C. 5107(b) provides for “careful consideration of all procurable and assembled data” and of “the entire, complete record”. 38 CFR 3.102. Therefore, in addition to considering VA medical exams and opinions, VA weighs and considers all other medical evidence, including that produced by a veteran's treating physician.

We note that 38 CFR 3.303(a) only prescribes that VA decide claims for service connection “based on review of the entire evidence of record” and there is no rule in part 3 that specifically implements 38 U.S.C. 5107(b). We therefore propose to add a new sentence at the beginning of § 5.4(b) stating, “VA will base its decisions on a review of the entire record.” We use the term “entire record” because it is unclear whether “entire evidence of record” means all of the evidence of record, or the entire record. The evidence in a VA claims file is only part of the entire record comprising the claims file. Our language resolves the ambiguity in favor of the more inclusive meaning, which is consistent with current VA practice. Because § 5.4(b) would clearly state that “VA will base its decisions on a review of the entire record”, we believe it would be redundant and possibly confusing to restate this principle in specific sections in part 5 (as does part

3). We therefore propose to remove such provisions from §§ 5.269(e), (f)(1) and (2), and 5.343. In order to incorporate the court's holding in

Bell

v.

Derwinski,

2 Vet. App. 611 (1992), we propose to add the phrase “including material pertaining to the claimant or decedent, in a death benefit claim, that is within VA's possession and could reasonably be expected to be a part of the record” to the end of that sentence.

§ 5.5 Delegations of Authority

We propose to add § 5.5, “Delegations of authority”, to this initially proposed segment. This regulation was inadvertently not included in the initially proposed rule. These provisions are the same as § 3.100, “Delegations of authority”, reorganized to make them easier to read. We also propose to replace the § 3.100(a) language, “. . . entitlement of claimants to benefits under all laws administered by the Department of Veterans Affairs governing the payment of monetary benefits to veterans and their dependents . . .” with “entitlement to benefits under part 5”. We propose to make this change because part 5, like part 3, includes benefits which do not involve monetary payments. These include a grant of service connection for a veteran's disability rated 0 percent and certification of loan guaranty benefits for a surviving spouse. Lastly, we propose to omit the reference to the “Compensation and Pension Service” (used in § 3.100(a) and now subdivided into the “Compensation Service” and “Pension and Fiduciary Service”) is a subdivision of the Veterans Benefits Administration, and the reference is therefore unnecessary.

VII. Subpart B: Service Requirements for Veterans AL67

In a document published in the

Federal Register

on January 30, 2004, we proposed to amend VA regulations governing service requirements for veterans, to be published in a new 38 CFR part 5.

See

69 FR 4820. The title of this proposed rulemaking was, “Service Requirements for Veterans” (RIN 2900-AL67). We provided a 60-day comment period that ended on March 30, 2004. We received submissions from four commenters: Disabled American Veterans, Vietnam Veterans of America, and two members of the general public.

§ 5.20 Dates of Periods of War

One commenter expressed satisfaction with the progress of the Regulation Rewrite Project and offered praise for proposed RIN 2900-AL67. The commenter was pleased with the inclusion of the Mexican Border Period in proposed § 5.20, “Dates of periods of war”, as there are veterans and dependents who may still be alive and eligible for benefits based on military service during this period.

While we appreciate the commenter's concern, because there are no veterans or surviving spouses of the Mexican Border Period on VA's compensation and pension rolls and only one surviving dependent (a child), we propose to delete the provisions related to this period of war and refer regulation users to the applicable statutory provisions concerning this earlier period of war. This deletion would not affect benefit entitlement in any way. Should the occasion arise, VA will adjudicate any new claim using the statutory definition of this earlier period of war. See 38 U.S.C. 101(30).

The table in § 5.20 was published as a proposed rule using the terms “armed forces” and “active military, naval, or air service”. For consistency, we propose to capitalize “Armed Forces” and change “active military, naval, or air service” to “active military service”.

§ 5.22 Service VA Recognizes as Active Duty

In our NPRM, we invited comments on “whether, and to what extent, VA should recognize military duty for special work as active duty for VA purposes.” 69 FR 4822, Jan. 30, 2004. One of the commenters urged that VA recognize active duty for special work. Subsequent to that publication, however, additional issues have arisen which require closer coordination than we previously anticipated between VA and the Department of Defense. When that coordination has been completed, we will publish a separate NPRM on the characterization of active duty for special work. Hence, we propose not to revise § 5.22 to address the recognition of active duty for special work.

§ 5.24 How VA Classifies Duty Performed by Armed Services Academy Cadets and Midshipmen, Attendees at the Preparatory Schools of the Armed Services Academies, and Senior Reserve Officers' Training Corps Members

Current 38 CFR 3.6(c)(4) refers to “deaths and disabilities resulting from diseases or injuries incurred or aggravated after September 30, 1982, and . . . deaths and disabilities resulting from diseases or injuries incurred or aggravated before October 1, 1982”. In initially proposed § 5.24(c)(1) (based on § 3.6(c)(4)), we proposed to replace the phrase “incurred or aggravated” with the term “that occurred”. Although it was not our intention, the use of “occurred” could be construed as narrowing the scope of the regulation by excluding aggravation. Therefore, we now propose to replace “that occurred” with “incurred or aggravated” in § 5.24(c)(1).

§ 5.27 Individuals and Groups That Qualify as Having Performed Active Military Service for Purposes of VA Benefits Based on Designation by the Secretary of Defense

The official names of groups of civilians who, pursuant to section 401 of Public Law 95-202, have been designated by the Secretary of Defense as having performed active military service for VA benefit purposes are listed alphabetically in proposed § 5.27(b).

Such groups apply for status as having performed active military service using group names that, as nearly as possible, precisely identify the members of the group and the service they want recognized. In fact, when a favorable determination is made, the Secretary's

Federal Register

notice is almost always phrased in terms of “service of the group known as”, followed by the group's official name.

In the NPRM, we initially proposed to revise some of the group names for clarity and readability. However, we have determined that this could cause confusion that a group other than the original was determined to have performed active military service. Such confusion can be avoided by strictly adhering to the official names of the groups, and we now propose to revise § 5.27(b) to reflect the original group names exactly as they were provided to VA by the Secretary of Defense.

§ 5.28 Other Groups Designated as Having Performed Active Military Service

In reviewing initially proposed § 5.28, we determined that we mistitled it. This section refers only to groups, not individuals and we have retitled it accordingly.

§ 5.31 Statutory Bars to VA Benefits

In initially proposed § 5.31(c)(4), we defined the acronym “AWOL” as “absence without official leave”. However, in the Uniform Code of Military Justice (10 U.S.C. 886) that particular offense is called “absence without leave”, and the word “official” is not used. Therefore, for purposes of consistency and clarity, we propose to delete the word “official” from § 5.31(c)(4).

§ 5.39 Minimum Active Duty Service Requirement for VA Benefits

Initially proposed § 5.39(c)(2) stated, “If it appears that the length of service requirement may not be met, VA will request a complete statement of service to determine if there are any periods of active military service that are required to be excluded under paragraph (e) of this section.” After reviewing this paragraph to respond to a public comment, we propose to correct a typographical error (by changing the reference to paragraph “(e)” to “(d)”) and to clarify the paragraph to improve readability.

In § 5.39(d)(4), we initially proposed to exclude any person who has a compensable disability under 38 U.S.C. chapter 11 from the minimum active duty requirement. A disability is compensable if VA rates it as 10 percent or more disabling according to the Schedule for Rating Disabilities in part 4 of this chapter. One commenter asserted that it would be wrong to discontinue the entitlement of a veteran who did not meet the minimum active duty requirements, but was awarded an initial temporary 100 percent rating under 38 CFR 4.29 or 4.30, which was subsequently reduced to a noncompensable (0 percent) rating. Likewise, any veteran lacking the minimum active duty requirements who had a compensable disability, but a subsequent decision reduced the rating to 0 percent, should not lose entitlement. This commenter agreed that disability ratings should fluctuate with the severity of the disability, but that eligibility, once established, should not be revoked in such cases.

Under 38 U.S.C. 5303A(b)(1), a person who initially enters service after September 7, 1980, must be discharged or released after completing 24 months of continuous active duty or the full period for which such person was called to active duty to be eligible for, or be entitled to, any benefit administered by VA based upon the length of active duty service. Section 5303A(b)(3)(C) excludes those persons from the minimum active duty service requirements who have a disability that the Secretary has determined to be compensable under chapter 11 of this title. Section 5.39(d)(4) clarifies the term “compensable” to include veterans receiving special monthly compensation under 38 CFR 3.350, as well as those receiving a 10 percent rating for multiple 0 percent disabilities under 38 CFR 3.324.

The commenter's position appears to be that once service connection has been established and a disability rating of 10 percent or more disabling has been assigned, a person is forever excluded from having to satisfy the minimum active duty service requirements. We cannot agree.

Under 38 U.S.C. 5303A, the minimum active duty service requirements must be satisfied in order for a person discharged or released from a period of active duty to be eligible for, or entitled to, any benefit based on that period of active duty, unless a person is a member of one of the excluded groups. Under section 5303A(b)(3)(C), a person “who has a disability that the Secretary has determined to be compensable under chapter 11 of this title” meets the minimum active duty service requirement. The statute uses the present tense, “has” when referring to that disability, which means the veteran trying to show that he or she qualifies under section 5303A(b)(3)(C) must currently have a compensable disability. We also note that the current regulation on this point, § 3.12a(d)(3), already requires a current compensable disability to qualify for this exclusion. Section 5.39 does not, in any way, change the scope of this exclusion. For these reasons, we propose not to make any changes on minimum active duty service requirements based on this comment.

Upon reviewing § 5.39(d)(4) in relation to this comment, we determined that it was appropriate to clarify the regulation consistent with the above discussion. We therefore propose to replace the phrase “VA determines to be” with “is currently” in this paragraph. This will ensure that readers understand that the regulation requires that a person have a currently compensable disability to qualify for the paragraph (d)(4) exclusion.

One commenter contended that 38 U.S.C. 5303A pertains only to those persons who are veterans by virtue of having served on active duty. This commenter asserted that a person, who obtained veteran status because an injury or disease was incurred or aggravated during active duty for training, or because an injury was incurred or aggravated during inactive duty training, is exempt from the provisions of section 5303A. The commenter alleged that the initially proposed rule does not clarify that these persons are not required to have a compensable disability to qualify for general benefits under title 38.

Upon a closer review of section 5303A and the definitions in 38 U.S.C. 101, we agree with the commenter. To be a veteran, a person must have “active military, naval, or air service”, referred to in part 5 as “active military service”. There are three types of service that qualify as active military service: (1) Service on active duty, (2) Service on active duty for training during which an injury or disease is incurred or aggravated, or (3) Service on inactive duty training during which an injury is incurred or aggravated, or during which the person suffers an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident.

See

38 U.S.C. 101(24). Since section 5303A, by its terms, applies only to veterans who served on active duty, it does not apply to veterans who performed active military service under the provisions of § 5.21(a)(4) or (5). We therefore propose to revise initially proposed § 5.39(d) to add two other categories of persons excluded from the minimum active duty service requirements: Persons who performed active military service under the provisions of § 5.21(a)(4) or (5).

In reviewing initially proposed § 5.39 in relation to the comment discussed above, we discovered that we inadvertently omitted a phrase contained in current § 3.12a(b): “based on that period of active service”. To correct that omission, we propose to revise § 5.39(a) accordingly.

In initially proposed § 5.39, we included proposed paragraphs (f)(2)(iv) and (v). Based on our review of the proposed rule, we noted that this was a numbering error. Proposed paragraphs (f)(2)(iv) and (v) should have been numbered (f)(2)(iii) and (iv) respectively because the proposed regulation did not have a paragraph (f)(2)(iii). Instead, it mistakenly skipped from (f)(2)(ii) to (f)(2)(iv). We propose to correct this error.

Comments Outside the Scope of RIN 2900-AL67

One person commented with reference to RIN 2900-AL67. The comments related to the definition of “Service in the Republic of Vietnam”, and to the so-called Bluewater sailors. These comments are outside the scope of the proposed rule published under RIN 2900-AL67, but relate to another NPRM, RIN 2900-AL70. We discussed these comments together with the other comments received in connection with RIN 2900-AL70.

We also received a comment that was not directed at any particular proposed rule, but we thought it would be most appropriately addressed in this portion of the proposed rule. The commenter was concerned that National Guard full time active duty members were not considered veterans unless they were injured on duty.

The commenter is correct. Persons who serve full time in the National

Guard under section 316, 502, 503, 504, or 505 of title 32 are on active duty for training and are not considered veterans under title 38, VA's controlling statutes, unless they are disabled by an injury or disease that was incurred or aggravated during such duty. If the law is clear and unambiguous, VA is bound by it. Congress has spoken clearly about who may be considered a veteran for VA purposes.

See

38 U.S.C. 101(2) and (24). Under such circumstances, the commenter's only remedy would be a change of statutory law. No change in regulations can be made based on this comment.

Changes in Terminology for Clarity and/or Consistency

For the convenience of readers and for economy of language, we propose to spell out the full name of each VA program or benefit the first time we use it in any part 5 regulation, and to abbreviate it thereafter. For example, the death benefit payable to a surviving spouse, child, or dependent parent based on death in service or due to a service-connected disability is officially titled “dependency and indemnity compensation”. That benefit name is quite cumbersome when it is repeated several times within a regulation. The abbreviation or acronym “DIC” is much easier to use and improves the readability of a regulation. In order to use the acronym, we must first spell it out for the reader, and while we do not want to spell out the term every time we use it, neither do we want to spell it out once in part 5 or once in each subpart and force the reader to keep referring back to a definition that is remote from where the acronym is being used. To strike a balance we propose to spell out the official program name followed by the acronym in parentheses the first time the program name is encountered in a section and to use the acronym throughout the remainder of that section. This will apply to regulatory text only, and not to section titles. If we use the program title only once in a section, we would spell it out with no parenthetical abbreviation or acronym. We will apply this convention throughout part 5.

Lastly, we propose to standardize the words used in referring to VA's rating schedule, “the Schedule for Rating Disabilities in part 4 of this chapter”. For this subpart, the new term will replace the initially proposed language in § 5.39(d)(4)(i).

VIII. Subpart C: Adjudicative Process, General

VA Benefit Claims AM16

In a document published in the

Federal Register

on April 14, 2008, we proposed to revise VA regulations governing benefit claims. 73 FR 20136. We provided a 60-day comment period that ended June 13, 2008. We received submissions from two commenters: Center for Plain Language and a member of the general public.

One commenter criticized our use of the passive voice and overly long sentences in the initially proposed rulemaking. Based on this comment, we propose to revise all of the proposed regulations to use the active voice and shorter sentences whenever possible or appropriate.

In addition to the specific changes discussed below, we propose to revise the regulations proposed in NPRM, RIN 2900-AM16 to help improve clarity and consistency with other part 5 regulations.

§ 5.50 Applications VA Furnishes

Initially proposed § 5.50(a) stated, “Upon request in person or in writing, VA will furnish the appropriate application to a person claiming or applying for, or expressing intent to claim or apply for, benefits under the laws administered by VA.” Based on our review, we propose to remove “in person or in writing” because it is too restrictive. Claimants may also request applications using the telephone or email. We also propose to remove the phrases “or applying for” and “or apply for” because these phrases are redundant of “claiming” and “claim”. Moreover, they may cause a reader to mistakenly believe that we mean something different by the use of these different phrases.

We have defined “notice” in § 5.1. The definition applies to VA's duty to inform a claimant of something a certain way. We propose to revise the first sentence of proposed paragraph § 5.50(b) by replacing the word “notice” with “information” because use of “notice,” as so defined, would be inappropriate.

The term “dependent” as used in the initially proposed rule and in § 3.150 from which it derives referred to persons known to VA as the deceased veteran's dependents at the time of his or her death. The term “survivor” better meets the requirement to provide an application to persons with “apparent entitlement”, because it encompasses persons not known to VA as the veteran's dependent who could, nevertheless, be entitled to a death benefit. We therefore propose to revise initially proposed paragraph (b) by replacing the word “dependent” with the word “survivor”.

We also propose to revise paragraph (b) by replacing the word “forward” in the first sentence with “furnish” and replacing “for execution by or on behalf of” with “to”. As revised, the sentence states that, “VA will furnish the appropriate application to any survivor”. “Furnish” is a more accurate word for supplying the survivor an application and it is consistent with paragraph (a), which also uses the word “furnish”. The initially proposed rule stated that VA will forward the application “for execution by or on behalf of” a dependent. In this regulation, it is surplus to state that the application is “for execution”. Although VA provides applications so claimants can execute them, the rules about what to do with an application are more appropriate to the regulations about filing claims. In the same sentence, we have changed the general reference to “such benefits” to name the benefits that a dependent could possibly receive, for example, death pension or dependency and indemnity compensation.

Additionally, we propose to revise the phrase, “If it is not indicated”, which appeared at the beginning of the second sentence of the initially proposed rule, to read, “If the available evidence does not indicate”. This phrase more clearly states what records VA will review to determine if there is a potential accrued benefits claimant. In the same sentence, we have replaced “forward” with “furnish” for the reasons discussed above. We also propose to revise the last sentence of paragraph (b) to specifically describe the 1-year time limit for filing a claim for accrued benefits because it will be helpful to claimants.

In the NPRM, paragraph (c) implied that VA would not assist in a claim for disability or death due to hospital treatment, medical or surgical treatment, examination, or training. The initially proposed rule stated, in pertinent part, “VA will not forward an application for benefits under 38 U.S.C. 1151.” We believe that it is important to instead inform the reader that VA does not have an application for claims under 38 U.S.C. 1151. We therefore propose to revise paragraph (c) to clarify that a claimant may apply in any written form for disability or death benefits due to hospital treatment, medical or surgical treatment, examination, or training under the provisions of 38 U.S.C. 1151. VA does not have an application for such a claim. See § 5.53, Claims for benefits under 38 U.S.C. 1151 for

disability or death due to VA treatment or vocational rehabilitation, for the requirements for filing a claim pursuant to 38 U.S.C. 1151.

Initially proposed § 5.50 repeated the cross reference to § 3.109(b) from the end of § 3.150. This cross reference is erroneous because § 3.109(b) does not apply to any deadlines for filing claims referenced in §§ 3.150 or 5.50. We therefore propose to remove this cross reference from § 5.50.

§ 5.51 Filing a Claim for Disability Benefits

Initially proposed § 5.51(a) stated, “An individual must file a specific claim in the form prescribed by the Secretary in order for disability benefits to be paid under the laws administered by VA.” We propose to replace the phrase “in order for disability benefits to be paid under the laws administered by VA” with “for VA to grant a claim for disability benefits”. This change clarifies that the provision applies not only to cases where VA grants monetary benefits, but also to cases where VA grants service connection and rates the disabilities as 0 percent disabling.

Subsequent to the publication of proposed § 5.51, section 502 of Public Law 112-154 (2012) amended 38 U.S.C. 5101 by adding a new paragraph which states that if an individual has not attained the age of 18 years, is mentally incompetent, or is physically unable to sign a form, a form filed under paragraph (1) for the individual may be signed by a court-appointed representative, a person who is responsible for the care of the individual, including a spouse or other relative, or an attorney in fact or agent authorized to act on behalf of the individual under a durable power of attorney. If the individual is in the care of an institution, the manager or principal officer of the institution may sign the form * * * The term `mentally incompetent' with respect to an individual means that the individual lacks the mental capacity—(A) to provide substantially accurate information needed to complete a form; or (B) to certify that the statements made on a form are true and complete. We propose to update § 5.51(a) to reflect this amendment.

§ 5.52 Filing a Claim for Death Benefits

Initially proposed § 5.52(a) stated, “An individual must file a specific claim in the form prescribed by the Secretary (or jointly with the Commissioner of Social Security, as prescribed by § 5.131(a)) in order for death benefits to be paid under the laws administered by VA.” Subsequent to the publication of proposed § 5.52, section 503 of Public Law 112-154 (2012) amended 38 U.S.C. 5105 by removing the requirement that the Secretary of Veterans Affairs and the Commissioner of Social Security jointly prescribe forms for use by survivors of members and former members of the uniformed services in filing application for benefits under chapter 13 of title 38 and title II of the Social Security Act. Section 503 also removed the requirement that each such form request information sufficient to constitute an application for benefits under both laws. Finally, section 503 also removed the requirement that such a claim be filed on a particular form by allowing it to be filed “on any document indicating an intent to apply for survivor benefits”. We proposed to include these statutory changes in § 5.52(a).

In response to the Center for Plain Language's comment about sentence length in initially proposed § 5.52, we propose to revise the regulation to be more concise. We propose to revise initially proposed paragraph (a) by changing “in the form prescribed” to “for death benefits by completing and filing the application prescribed”.

See

§ 5.1, “Definitions”; compare definition of “application”, with definition of “claim”, § 5.1(k). The requirement to use a prescribed application to claim a death benefit is consistent with the authorizing statute, 38 U.S.C. 5101(a), and its current implementing regulation, § 3.152(a). Both statute and regulation incorporate by reference the requirement that the Secretary and the Commissioner of Social Security jointly prescribe an application for use at either agency to apply for certain benefits, and that the application constitutes a claim for both agency's benefits when filed with either agency.

See

38 U.S.C. 5105; 38 CFR 3.153.

In

Fleshman

v.

West,

138 F.3d 1429, 1431 (Fed. Cir. 1998), involving a claim for disability compensation, the Federal Circuit addressed whether the phrase “in the form” in section 5101(a) means “on a form”. The court distinguished between the phrases, citing § 3.153 pertaining to claims for death benefits as an example of a regulation that clearly requires the claimant to use a specific application by using the phrase “on a form prescribed”. Section 5.52(a) will implement the court's reasoning and make explicit VA's practice regarding claims for death benefits. The proposed change of language from “in the form prescribed” to “by completing and filing the application prescribed” is a clarifying change from § 3.152(a). We also propose to change the language in initially proposed paragraph (a) of § 5.52 from, “in order for death benefits to be paid under the laws administered by VA”, to, “for VA to grant death benefits”, to be consistent with § 5.51.

We propose to revise paragraph (b) by removing references to filing a claim for death compensation. This benefit is not available for new applicants, so it is not necessary to include death compensation provisions in part 5. As a result of this change, we propose to eliminate initially proposed (b)(1) and redesignate proposed (b)(2) and (3) as (b)(1) and (2), respectively. We propose to revise paragraph (b) to eliminate needless repetition of language common to initially proposed § 5.52(b)(2) and (3).

In initially proposed § 5.52(c)(4) and (5), we addressed the effective dates of a child's death benefits. These paragraphs referenced the claimant's requirement to timely submit evidence that VA requests and the consequence of failure to timely submit such evidence. The rules on timely submission of evidence are in § 5.136, “Abandoned claims”, derived from current § 3.158. We propose to remove these provisions from initially proposed § 5.52 because there is no need to repeat them. To make the regulations more concise and easier to use, we propose to combine the remaining portions of initially proposed paragraphs (c)(4) and (5) with paragraph (c)(3) and to cross reference the effective date rules by referencing § 5.696 in paragraph (c)(1) and referencing §§ 5.538 and 5.431 in paragraph (c)(3).

§ 5.53 Claims for Benefits Under 38 U.S.C. 1151 for Disability or Death Due to VA Treatment or Vocational Rehabilitation

We propose to remove the last sentence of initially proposed § 5.53, which stated, “Such communication may be contained in a formal claim for pension, disability compensation, or DIC, or in any other document.” The first sentence of the regulation states that VA may accept “any communication in writing” as a claim for benefits under 38 U.S.C. 1151. In light of that rule, the sentence we propose to remove is surplus; “any communication in writing” inherently includes one “contained in a formal claim”.

§ 5.54 Informal Claims

We propose to make several changes to initially proposed § 5.54. These changes will revise and reorganize the rule to be clearer and consistent with current VA practice.

Paragraph (a) defines an informal claim and states that the informal claim must be written. VA defines a “claim” as a “formal or informal communication

in writing” (§ 5.1). Section 5.54(a) merely reiterates this requirement for clarity in the rule governing informal claims.

See Rodriguez

v.

West,

189 F.3d 1351, 1354 (Fed.Cir. 1999) (VA defines “claim” as a formal or informal written communication, therefore “under the Department's regulations an informal claim application must be written”). We also propose to add a cross reference in proposed paragraph (c)(2) to § 5.56, “Report of examination, treatment, or hospitalization as a claim.” The reader should find it convenient to have a reference here to an alternative method of claiming certain benefits.

Initially proposed paragraph (a) also stated that “[a]ny communication or action” may be an informal claim for benefits. As the phrase is used in current § 3.155 from which it derives, any “action” that would be a claim for benefits would be a communication. Therefore, we propose to remove the phrase “or action” as superfluous.

Additionally, initially proposed paragraph (a) listed who may file an informal claim and stated certain conditions for persons other than the claimant to file the claim. We propose to move this list to paragraph (b) to distinguish the authority to file an informal claim from the required content of an informal claim. Readers should find it convenient to have in one place a list of persons who can file a claim and any conditions on that authority. Initially proposed paragraph (b), like 38 CFR 3.155(b), listed several types of representatives: agents, attorneys, and service organizations. Initially proposed paragraph (a) contained the term “authorized representative”, which we have moved into paragraph (b). Because “authorized representative” includes agents, attorneys, and service organizations, we propose to remove those terms from § 5.54.

Initially proposed paragraph (a) provided that a “duly authorized representative” may file a claimant's informal claim. We propose to remove the word “duly” from the phrase “duly authorized representative”. It is a superfluous legalism. A claimant has or has not authorized a representative. There is no such thing as an unduly authorized representative. Such a representative would simply not be authorized.

Initially proposed paragraph (b), like current § 3.155(b), imposed conditions on VA's acceptance of an informal claim when filed by certain organizations or persons. The regulation stated the rule negatively: “A communication . . . may not be accepted . . . if a power of attorney . . . was not executed at the time the communication was written.” We propose to restate the rule affirmatively in paragraph (b) after the term “authorized representative”. The restated rule will read, “if authorized before VA received the informal claim”. This proposed change would also clarify the timing of the authorization.

Initially proposed § 5.54(b), also like current § 3.155(b), required that a power of attorney from the listed parties “was . . . executed at the time the communication was written.” VA requires that it receive the executed power of attorney before it will act on a written communication from certain representatives as an informal claim. In current practice, VA accepts as an informal claim a written communication from one of the listed representatives if it meets the requirements of an informal claim and VA receives it along with a power of attorney executed as regulation requires. “At the time the communication was written” is ambiguous. It could mean the power of attorney was executed simultaneously, more or less contemporaneously, or simply before the communication was written. VA has no mechanism to ascertain whether the power of attorney was executed at any of these times, nor need VA ensure the power of attorney was executed “at the time the communication was written.” VA is sufficiently assured of the authenticity of the power of attorney and of the authority of the representative to act for the veteran if VA receives a properly executed power of attorney and the communication the representative wrote for the claimant together.

Initially proposed § 5.54(b) contained a cross reference to 38 CFR 14.631, “Powers of attorney; disclosure of claimant information.” Because § 14.630, “Authorization for a particular claim”, also describes a type of authorized representative, we propose to add a cross reference to that section, too.

We propose to reorganize the elements of initially proposed paragraphs (a) and (c) that addressed the effect of filing an informal claim, combining them in paragraph (c). Paragraph (c)(1) applies to original informal claims. Initially proposed paragraph (a) provided that VA will “forward” an application to anyone who files an informal claim, but has not filed a formal claim. We propose to revise this to say that VA will “furnish an appropriate application to a person who files an informal claim”. This is consistent with § 5.50(a), which requires VA to furnish an “appropriate application” for a benefit upon request. VA does not have an application for all benefits. We propose to make paragraph (c)(1) practicable by limiting the requirement that VA “furnish an appropriate application” to those benefits for which VA has an application.

The initially proposed rule prescribed that VA would accept the date of receipt of an informal claim as the date of the claim, “If [the application is] received within 1 year after the date it was sent to the claimant”. We propose to add to paragraph (c)(1) that “VA will take no action on the informal claim until the claimant files the completed application.” Though the initially proposed language stating that VA forwards the application “for execution” implies that it must be returned executed (that is, completed), it is clearer to say so explicitly.

We propose to revise initially proposed paragraph (c) as paragraph (c)(2). We propose to remove “an informal request” and “will be accepted as a claim”. The revised regulation will prescribe VA's action upon receipt of an “informal claim” from a claimant who has previously satisfied § 5.51 or § 5.52, as did the initially proposed regulation. We propose to remove the term “informal request” for the same reason we propose to remove “action” from paragraph (a). Any “informal request” for an increase or to reopen must be a communication indicating “an intent to apply for one or more benefits”, that is, an informal claim. We propose to remove “will be accepted as a claim”, because to say that VA will accept an informal request as a claim if the claimant previously satisfied the requirements of § 5.51 or § 5.52 is merely to say that an informal claim is a claim under those circumstances. That is exactly what the regulation means, and VA has never intended an “informal request” to be something different from an informal claim. Using another term for an informal claim confusingly suggests that there is some other type of “informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a VA benefit” that might not be an informal claim. As the definition of “claim” reveals, this cannot be so.

See

§ 5.1, defining “claim”.

Paragraph (c)(2) provides that VA will act on an informal claim without requiring another application from a person who has previously filed an application. The initially proposed rule and current § 3.155(c) allowed an informal claim for increase or to reopen to be accepted without the claimant subsequently filing an application if the claimant had previously filed a claim

that “met the requirements of § 5.51 [disability benefits] or § 5.52 [death benefits]”. It is implicit, but not obvious, that VA can accept an informal claim for each type of benefit without requiring a subsequent application only if the claimant has previously filed an application for that type of benefit. An application that provides information critical to the benefit claimed satisfies the statutory requirement to file a claim “in the form prescribed by the Secretary”.

Fleshman,

138 F.3d at 1431-32 (Applicant must file claim containing specified information, and without the “critical information” it will not be “in the form prescribed by the Secretary” so as to comply with 38 U.S.C. 5101(a)). It is VA's receipt of the information critical to a claim for disability benefits or for death benefits that enables VA to accept a subsequent informal claim for disability benefits or death benefits without requiring another application.

The previous filing of a claim for disability benefits will not have provided VA the critical information necessary for the claimant to have met the requirement of 38 U.S.C. 5101(a) for a claim for death benefits, and vice versa. As proposed to be revised, § 5.54(c)(2)(i) and (ii) will explicitly state the implicit requirement in initially proposed § 5.54(c) that VA will accept an informal claim for increase or to reopen a claim for disability or death benefits only if the claimant has previously filed a claim for that type of benefit.

§ 5.55 Claims Based on New and Material Evidence

We propose to revise initially proposed § 5.55 in response to a comment and based on our further review of the regulation. The commenter requested that VA make the rule clearer and use the active voice. We propose to revise this regulation to enhance readability and be more consistent with the format of other part 5 regulations.

The proposed revisions describe the process of, and provide instructions for, reopening a claim that the initially proposed regulation did not. The proposed revisions afford the claimant the same rights, however, and prescribe the same burdens and duties for the claimant and for VA in seeking to reopen a claim as did the initially proposed regulation. They articulate current VA practice in implementing 38 U.S.C. 5108, which requires VA to “reopen the claim and review the former disposition” if “new and material evidence is presented or secured”. They also make explicit several aspects of reopening a claim that are implicit in the initially proposed and the current regulation.

We propose to move the definition of a “reopened claim” from initially proposed § 5.57(f) to § 5.55(a) and (d) and restate it as a list of conditions necessary to reopen a claim VA has finally denied.

Initially proposed § 5.55(a) stated, “A claimant may reopen a finally adjudicated claim”. The paragraph characterized new and material evidence in reference to “evidence of record at the time of the last prior final denial of the claim sought to be reopened”. Both quoted phrases come from current § 3.156(a). As now proposed, § 5.55(a) states, “A claimant may reopen a claim if VA has made a final decision denying the claim.” It would be redundant to state that a claimant may reopen a “finally” adjudicated claim because we define “claim” in § 5.1 and we define “final decision” in § 5.1. A claim is not subject to reopening if a prior decision is not final. Therefore, in order to reopen a claim, paragraph (a) of this section requires the existence of a final decision denying that claim. These changes are consistent with the circumstances in which a claimant will seek to reopen a claim.

We propose to move the language in initially proposed § 5.57(f) regarding the Board of Veterans' Appeals (Board) treatment of certain evidence into § 5.55(d) because it relates to new evidence in the context of reopening a claim. We have shortened that language because under § 20.1304(b)(1)(i), any evidence or request for hearing referenced in that rule will be returned to the RO “upon completion of the Board's action on the pending appeal”. Therefore, the RO will apply § 20.1304(b)(1)(i) only in the context of a final denial, which is already discussed in § 5.55(a), or a grant or remand, in which case, the provisions of § 5.55 are irrelevant. The primary relevance of § 20.1304(b) to § 5.55 is that evidence submitted to the Board prior to its decision, but not considered by the Board, as set forth in § 20.1304(b), may be considered “new” for purposes of § 5.55.

We propose not to include the provision contained in § 5.57(f) regarding hearings in § 5.55(d). When a claimant requests a hearing at the Board more than 90 days after certification of an appeal and transfer of the claims file to the Board, the Board will not allow the hearing unless there is a showing of good cause for the delayed request. If the Board finds good cause and allows the hearing, then any testimony presented is considered in deciding the appeal. If the Board does not find good cause, then it will decide the appeal without conducting the hearing. In that case, it will refer the hearing request to the AOJ as required by 38 CFR 20.1304(b)(1)(i). Any testimony presented at a subsequent AOJ heari

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