Well-grounded Claims

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AJ44

Well-grounded Claims

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) is proposing to amend

its adjudication regulations concerning a claimant's statutory

responsibility to support his or her claim with adequate evidence to

make the claim ``well grounded.'' The proposed rule also addresses VA's

duty to help claimants who have filed well-grounded claims obtain

evidence pertinent to their claims. The intended effect of this

amendment is to establish clear guidelines regarding the types of

evidence that make a claim well grounded; VA's duty to help claimants

obtain evidence; and exceptions to the well-grounded claim requirement.

DATES: Comments must be received on or before January 31, 2000.

ADDRESSES: Mail or hand-deliver written comments to: Director, Office

of Regulations Management (02D), Department of Veterans Affairs, 810

Vermont Ave., NW, Room 1154, Washington, DC 20420. Comments should

indicate that they are submitted in response to ``RIN 2900-AJ44.'' All

written comments received will be available for public inspection at

the above address in the Office of Regulations Management, Room 1158,

between the hours of 8 a.m. and 4:30 p.m., Monday through Friday

(except holidays).

FOR FURTHER INFORMATION CONTACT: Janice Jacobs, Consultant, Policy and

Regulations Staff, Compensation and Pension Service, Veterans Benefits

Administration, 810 Vermont Avenue, NW, Washington, DC 20420, telephone

(202) 273-7223.

SUPPLEMENTARY INFORMATION: Section 5107(a) of title 38, United States

Code, states that, except when otherwise provided by the Secretary, a

person who submits a claim for benefits under a law administered by VA

shall have the burden of submitting evidence sufficient to justify a

belief by a fair and impartial individual that the claim is well

grounded. Section 5107(a) further requires the Secretary of Veterans

Affairs to assist ``such a claimant'' in developing the facts pertinent

to the claim. Both the United States Court of Appeals for Veterans

Claims (CAVC) and the United States Court of Appeals for the Federal

Circuit (Federal Circuit) have construed this statutory language as

requiring a claimant to submit a well-grounded claim before VA has a

duty to help him or her obtain any additional evidence it needs to

decide the claim on its merits.

Although VA has not defined the term ``well grounded,'' CAVC and

the Federal Circuit have issued a number of decisions defining that

term. A well-grounded claim is ``a plausible claim, one which is

meritorious on its own or capable of substantiation. Such a claim need

not be conclusive but only possible to satisfy the initial burden of

[5107(a)].'' Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The

Federal Circuit has affirmed CAVC decisions holding that VA's statutory

duty to assist attaches only after a claimant submits a well-grounded

claim. Epps v. Gober, 126 F.3d 1464, 1468-69 (Fed. Cir. 1997), cert.

denied sub. nom. Epps v. West, ____ U.S. ____, 118 S.Ct. 2348 (1998).

In Morton v. West, 12 Vet. App. 477, 486 (1999), the CAVC held that VA

has no authority to issue regulations inconsistent with the statutory

requirement that claimants submit enough evidence to well ground their

claims before VA is required to assist in developing the claims. The

Morton decision, in effect, invalidated any internal VA directives or

procedures which purport to volunteer VA assistance in all claims, even

if they are not well grounded, by holding that such directives or

procedures are inconsistent with section 5107(a).

In a number of cases, both the Board of Veterans' Appeals (BVA) and

CAVC have found that claims developed and adjudicated at VA's regional

offices were not well grounded. The Veterans' Claims Adjudication

Commission, established under Public Law 103-446, questioned the

prudence of investing time and resources in developing claims that are

not well grounded. Furthermore, the CAVC has noted that if the

Secretary, as a matter of policy, volunteers assistance to establish

well groundedness, grave questions of due process can arise if there is

apparent disparate treatment among claimants in this regard. See

Grivois v. Brown, 6 Vet. App. 136 (1994).

Recognizing the need for clear guidelines that can be consistently

applied both on well-grounded claims and VA's duty to assist, VA

published an advance notice of proposed rulemaking in the Federal

Register on October 30, 1998 (63 FR 58336). This notice invited

comments on the proposed policy and procedures VA should adopt with

respect to these issues. We received comments from the American Legion

(AL); Disabled American Veterans (DAV); the State of Florida Department

of Veterans Affairs (FDVA); joint comment from AMVETS, the National

Organization of Veterans Advocates (NOVA), and the Paralyzed Veterans

of America (PVA); Vietnam Veterans of America (VVA); and three

concerned individuals.

Need to Write Regulations

Several commenters, maintaining that the courts have misconstrued

section 5107(a) by holding that a well-grounded claim is a prerequisite

to VA's duty to assist claimants in developing evidence, stated that VA

should not undertake rulemaking on these issues and thereby ingrain the

error of the courts in its regulations. VA does not agree that the

courts have misconstrued section 5107(a) in this respect. Moreover, VA

is bound by the precedent decisions of the courts and their

interpretations of statutes. We are, therefore, proposing to revise the

regulations to incorporate the courts' interpretation of section

5107(a).

Another commenter stated that there is no need for VA to undertake

rulemaking on this issue because it already has binding rules in its

Adjudication Procedures Manual, M21-1; in agency circulars; in

precedential general counsel opinions; in agency

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guides; and in agency transmittal sheets. However, the Morton decision

expressly concluded that provisions that volunteer VA assistance in all

claims even if they are not well grounded, conflict with the statute

and therefore create no enforceable rights for claimants. Although

section 5107(a) allows the Secretary to establish exceptions, those

exceptions must be established by regulation and must be consistent

with the statute; it is, therefore, necessary for VA to undertake

rulemaking on this issue. Provisions in VA manuals or other internal

documents that are inconsistent with section 5107(a) will be revised or

eliminated as necessary.

Definition of a Well-Grounded Claim

One commenter suggested that we define a well-grounded claim as one

accompanied by ``sufficient supporting evidence'' to establish the

possibility of entitlement. While VA agrees in principle with this

concept, in our view the ``sufficient supporting evidence'' language is

too vague for practical implementation.

A person submitting a claim for benefits under this part must

submit sufficient evidence to justify a belief by a fair and impartial

individual that the claim is well grounded. 38 U.S.C. 5107. The

legislative history of 38 U.S.C. 5107 indicates that Congress intended

that ``the claimant would have the burden of adducing some evidence on

each element necessary to warrant the granting of the benefit at

issue.'' S.Rep. No. 418, 100th Cong., 2d Sess. 32 (1988). Consistent

with the legislative history, we propose to define a well-grounded

claim as one for which there is some competent evidence with respect to

each element necessary to establish entitlement to the particular

benefit sought. We believe that it is reasonable to require a claimant

to show the possibility that he or she meets a benefit's eligibility

requirements before the government commits its limited resources to the

time and expense of developing further evidence.

Although the criteria for entitlement to the various benefits

administered by VA differ depending upon the benefit sought, the

proposed general definition of a well-grounded claim is simple and

flexible enough to provide a workable standard for determining whether

evidence well grounds a claim. Furthermore, a simple and clear

definition will not only help claimants understand what they have to

submit to show they may be qualified for the benefits sought, but it

will promote consistent treatment of claims by all VA decision makers.

Certain statutory and regulatory presumptions relieve claimants of

having to present evidence on one or more of the elements, usually the

nexus requirement, necessary to well ground a claim by presuming the

establishment of those elements. To establish a well-grounded claim for

any such benefit, the claimant must submit some evidence on each of the

other remaining elements necessary to establish entitlement to the

benefit under the applicable statute or regulation.

Claimant's Obligations and Evidentiary Requirements

One commenter suggested that the rule should state the specific

types of evidence a claimant must submit to well ground a claim. We

agree and propose to include in the rule examples addressing the types

of evidence needed to well ground claims for the most commonly claimed

benefits. Another commenter stated that requiring a claimant to

establish a well-grounded claim is essentially requiring the claimant

to prove entitlement on the merits. We do not agree. While evidence

that is sufficient to grant a claim on its merits is unquestionably

sufficient to well ground the claim, the well-grounded requirement is a

minimal threshold, requiring only enough evidence to show that a claim

is plausible.

The claimant's responsibility is to submit enough evidence to

justify a belief that he or she plausibly meets the eligibility

requirements for the specific benefit sought. While the requirements,

and therefore the nature of the evidence, will vary depending on the

benefit sought, we are proposing that the claimant must, at a minimum,

establish the possibility of entitlement through competent lay or

medical evidence.

We propose to state that medical evidence is competent when it is

offered by a person who, through education, is qualified to offer a

medical opinion on a matter requiring medical expertise. We are not

proposing that a medical opinion, to be competent, must in all cases be

rendered by an individual who is licensed as an ``M.D.'' or who is

board certified in a particular field. We propose to state that lay

evidence is competent when it is offered by a person who has first-hand

knowledge of facts or circumstances and relates matters that can be

observed and described by a lay person. A lay person is not qualified

to offer medical opinions or to diagnose a medical condition. For

purposes of well grounding a claim, competent lay and medical evidence

would be accepted as credible unless it is incredible on its face or

beyond the expertise of the person making the statement. See Robinette

v. Brown, 8 Vet. App. 69, 75-76 (1995), quoting King v. Brown, 5 Vet.

App.19, 21 (1993).

In our view, it would not be feasible to state specific standards

for each type of VA benefit in light of the variety of benefits

available. However, it is important to establish a workable general

definition of a well-grounded claim which can be applied to a claim for

any benefit. In this regard, we propose to state that a claim is well

grounded if the claimant has submitted some competent evidence with

respect to each element necessary to establish entitlement to the

particular benefit sought.

We propose to define more specifically the elements that evidence

must address in order to well ground claims for service-connected

disability compensation, nonservice-connected disability pension

(pension), and claims for increased compensation for a service-

connected disability because they are the types of benefits for which

we receive the most claims.

Well-Grounded Claim for Service-Connected Disability Compensation

We propose to state that to well ground a claim for service

connected disability compensation the claimant must submit (1)

competent medical evidence of a current disability; (2) competent lay

or medical evidence that a disease or injury was incurred in or

aggravated by service; and (3) competent medical evidence showing a

nexus or relationship between the in-service disease or injury and the

current disability. See Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd

78 F.3d 604 (Fed. Cir.1996) (per curiam). Medical evidence is required

to establish the first element, that the veteran have a current

disability, because the determinative issue involves a medical

diagnosis and lay testimony is not competent evidence on this issue.

Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Grottveit v. Brown, 5 Vet.

App. 91, 93 (1995).

The second element, in-service incurrence or aggravation, may be

established by either medical or lay evidence depending on the facts of

the case. Lay evidence would be sufficient where, for instance, it

consists of statements by the claimant describing circumstances

surrounding an in-service injury which are of a nature that could be

observed by a lay person. As previously noted, such lay testimony, for

purposes of well grounding a claim, would be accepted as credible on

its face. Medical evidence in service medical records, if available,

could also

[[Page 67530]]

suffice to show that there was inservice diagnosis or treatment of a

disability or injury. Caluza.

The third requirement, a link or ``nexus'' between the in-service

incident and the current disability, requires competent medical

evidence. Again, while such medical evidence need not be conclusive, it

must indicate the medical plausibility of such a nexus, it must be more

than speculative and assert more than a possibility of a link. See

Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); Beausoleil v. Brown,

8 Vet. App. 459, 463 (1996). This evidence may be contained, for

example, as a notation in VA outpatient treatment records, in VA or

private hospital reports, or in a statement from a private physician.

Alternatively, a claimant can establish service connection for a

disability under the chronicity and continuity criteria stated in 38

CFR 3.303(b). The chronicity provision of Sec. 3.303(b) applies where

evidence, regardless of its date, shows that the veteran had a chronic

condition in service or during an applicable presumption period and has

current signs and symptoms which are present manifestations of the same

chronic disability. Savage v. Gober, 10 Vet. App. 488, 495 (1997). The

evidence to establish chronicity must be medical unless it relates to a

condition for which lay observation is competent. If the chronicity

provision does not apply, a claim may also be well grounded under the

continuity provision of Sec. 3.303(b) if there is medical evidence of a

current disability, competent lay or medical evidence that a condition

was noted in service or during any presumption period; competent lay or

medical evidence of post-service continuity of symptoms; and competent

medical, or in some circumstances lay, evidence of a nexus between the

present disability and the post service symptoms. Medical evidence

would usually be required to establish a nexus. Savage, 10 Vet. App. at

498.

Well-Grounded Claim for Pension

We propose to state that to well ground a pension claim, a claimant

must submit evidence of (1) qualifying wartime service; (2) income

within the statutory requirements of 38 U.S.C. 1521; (3) medical

evidence that the claimant has a permanent disability; and (4)

competent medical or lay evidence that the claimant is unable to work

because of that disability. See Vargas-Gonzalez v. West, 12 Vet. App.

321 (1999) (stating the requirements for entitlement to pension). Lay

evidence, such as a claimant's statement that he or she had war time

service, could establish the first element to well ground a claim for

pension. The claimant's statement or other evidence of current

household income would suffice to meet the second element. The third

element, that the claimant has a permanent medical condition(s), would

require competent medical evidence. The fourth element, that the

claimant is unable to work because of that disability, would require

either competent medical evidence or competent lay evidence, such as a

statement from the claimant or another individual with first-hand

knowledge of that fact.

Well-Grounded Claim for Increased Compensation

We propose to state that a claimant's statement that his/her

medical condition has worsened is enough to well ground a claim for an

increased evaluation of a service connected disability. The courts have

held that a claim that a condition has become more severe is well

grounded where the condition was previously service connected and

rated, and the claimant subsequently asserts that a higher rating is

justified due to an increase in severity since the last evaluation.

Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); McCaffrey v.

Brown, 6 Vet. App. 377, 381 (1994).

VA's Duty To Assist

It is only after a claim for benefits is well grounded that VA's

duty arises to assist a claimant in developing additional evidence

needed to decide the claim on its merits. 38 U.S.C. 1507; Epps, supra;

Morton, supra. Because the evidence needed to well ground a claim is

minimal, VA often will need additional evidence to decide the merits of

the claim.

We propose that when a claim is well grounded, VA will help the

claimant obtain the evidence specified in the regulation needed to

fully decide the claim on its merits. This evidence may include records

from federal, state or local government agencies as well as private

medical, employment and other non-government records. To prevent misuse

of time and resources, and to expedite an efficient request for such

evidence, we propose to require the claimant to (1) identify where any

such evidence may be located; (2) specify the approximate time frame

covered by the records; and (3) authorize the release of the records in

a format acceptable to the person or agency holding them. We also

propose that if VA is unable to obtain these records after reasonable

effort and after a reasonable period of time, it must notify the

claimant of that fact and the reason, if known, as to why the records

have not been received. It would also notify the claimant that although

VA has a duty to help him or her obtain evidence, the claimant has the

ultimate responsibility for producing it, and that unless VA hears from

the claimant within 30 days from the date on the notice, VA will

proceed to decide the claim on the basis of the evidence of record. VA

would not pay any fees required by custodians for furnishing requested

records; VA has no statutory authority to do so. This represents no

change from the current requirement under 38 CFR 3.159 regarding

payment of fees.

As part of its duty to assist, VA would also schedule a VA

examination if medical evidence accompanying the claim is not adequate

for rating purposes. See 38 CFR 3.326.

Informing Claimants of Evidence Needed To Well Ground Claims

Almost all of the commenters urged us to require VA to inform

claimants of the evidence they need to submit in order to well ground

their claims. We agree it is fair and equitable for VA to do so.

Accordingly, when a claimant applies for a VA benefit, but the claim is

not well grounded, we propose to require VA to (1) notify the claimant,

in writing, of that fact; (2) notify the claimant as to the types of

evidence necessary to well ground the claim; and (3) allow the claimant

thirty (30) days from the date on the notice to submit it. VA believes

it is fair and not unduly burdensome to allow the claimant 30 days in

which to furnish evidence sufficient to well ground a claim because the

``threshold of plausibility to make a claim well grounded `is rather

low.' '' Robinette, 8 Vet. App. at 76, citing White v. Derwinski, 1

Vet. App. 519, 521 (1991).

We believe that the ``duty to inform'' proposed here will further

the claimant's understanding of his or her responsibility to well

ground a claim. This proposed procedure, moreover, should afford the

claimant an early determination as to whether the claim is well

grounded.

Initial Claims Processing

We propose that VA determine whether a claim is well grounded

before taking any further action. If a claim is not well grounded upon

an initial review, the 30-day time period will permit the claimant an

opportunity to gather and submit the limited supporting documentation

needed to well ground the claim.

Three commenters suggested that as part of the initial claims

processing, VA

[[Page 67531]]

should obtain service medical records and VA medical records as well as

records from other federal agencies. One commenter stated that VA

should distinguish between VA records and non-VA evidence, and require

the claimant to submit only non-VA records. Another commenter stressed

that VA should require claimants to specifically identify any relevant

VA records to include year of treatment and type of records related to

the claimed disability. We agree, in part, and propose to authorize VA

to request VA medical records which the claimant has identified as

relevant to the claim, but only if the claimant has clearly identified

the VA facilities and approximate treatment dates for the claimed

conditions. We believe it is reasonable to obtain VA treatment records

in all claims where the claimant asserts their relevance, because these

records are in VA custody, even though they may not be in the custody

of the office responsible for deciding the claim. We believe it is

reasonable to require claimants to identify the location and

approximate dates of VA treatment because it would otherwise be

extremely difficult for VA to determine whether a claimant had ever

received treatment at any of VA's numerous medical facilities and to

identify and locate all records of such treatment.

We also propose to authorize VA to request service medical records

in claims for service-connected disability or death where they have not

already been associated with the claims file. Service medical records

are records of medical treatment during active duty. Since 1992, these

records have been routinely sent to VA's Records Management Center

(RMC) by the military units at the time of discharge, but were not

routinely sent to VA for veterans discharged prior to that date.

Existing claims processing procedure already provides for the immediate

transmission of these records to a VA Regional Office when it

establishes a claims file for a veteran; preventing VA from taking

advantage of the availability of these records would serve no purpose

but to delay claims processing. In view of the long-standing practice

of obtaining service medical records in all cases, we believe it would

be in the best interests of claimants, as well as VA and the service

departments, if VA were to continue to obtain these records in all

cases, rather than requiring claimants to seek to obtain them from the

service departments. Further, because service medical records are

highly relevant to VA claims, it is preferable for VA to obtain these

records to ensure that it has a complete and accurate copy of such

records. VA believes that in some cases, service medical records may

contain evidence that will well ground certain elements of a claim,

e.g., evidence of a current medical condition in the case of clearly

permanent conditions, such as missing extremities, or clearly chronic

conditions. See Hampton v. Gober, 10 Vet. App. 481 (1997) (service

medical records provided evidence of current knee condition).

Because VA does not have a duty to assist a claimant who has not

established a well-grounded claim, we propose that during the 30-day

period during which the claimant would be allowed to submit the

evidence necessary to well ground the claim, VA would not schedule a VA

examination or attempt to obtain any private medical or non-medical

records, or other federal or state agency records. Deferring

development until the claim is well grounded is consistent with 38

U.S.C. 5107, which states that VA's duty to assist does not arise until

that time. Furthermore, it will promote administrative efficiency, by

allowing VA to schedule general and special exams at one time after the

30-day period has expired, avoiding the ``piecemeal'' development which

delays claims processing and decision making.

We propose that at the end of 30 days, VA will review VA medical

records and service medical records together with any evidence the

claimant has submitted to determine if a claim is well grounded. If it

is not well grounded, VA would deny the claim as not well grounded,

notify the claimant which threshold requirements for the benefit have

not been met, and advise the claimant of his or her right to appeal the

decision.

In cases where a claimant submits an application for benefits that

contains multiple claims, some of which are well grounded and others

which are not, we propose that VA notify the claimant of the types of

evidence necessary to well ground each claim that is not well grounded,

and allow the claimant 30 days from the date on the notice in which to

submit it. During this 30-day period, VA will request service medical

records. It will also request any VA medical records the claimant has

identified as relevant to any of the claims, but only if the claimant

has clearly identified the VA facilities and approximate dates of

treatment for the claimed conditions. VA will not schedule a VA

examination on the well grounded claims until the expiration of 30

days. If, after 30 days, VA has not received evidence that well grounds

each claim, it will deny the claims that are not well grounded and will

help the claimant obtain any additional evidence that it needs to

determine entitlement to benefits for the well grounded claims,

including the scheduling of a VA exam, if necessary. We believe this

policy will allow VA to avoid ``piecemeal'' development and promote

administrative efficiency, by allowing it to schedule general and

special exams at one time after the 30-day period has expired.

Although we propose to allow a claimant 30 days to submit evidence

to well ground his or her claim before VA denies it, 38 U.S.C. 5103 and

its implementing regulation, 38 CFR 3.109(a), allow a claimant one year

to submit evidence to complete an application for benefits, calculated

from the date that VA requests the evidence. In our view, the

provisions of Sec. 3.109(a) would apply to evidence that VA advised a

claimant is necessary to well ground a claim. In the event that a

claimant has difficulty obtaining the evidence needed to well ground

his or her claim, or there is a delay in the receipt of VA medical

records or service medical records, we propose that VA would review any

evidence received after the 30-day period, but within one year of the

date the evidence was requested. This review would be conducted even if

a prior decision within that one year previously determined that the

claim was not well grounded. VA would then determine, based on all the

evidence of record, whether the claim is well grounded. If the

additional evidence well grounds the claim, VA will proceed to help the

claimant by requesting any additional evidence needed to decide the

claim on its merits. If the additional evidence does not make the claim

well grounded, VA will deny the claim as not well grounded, inform the

claimant of which threshold requirements for the benefit have not been

met, and advise the claimant of his or her right to appeal the

decision.

Exceptions to the Requirement To File a Well-Grounded Claim

Section 5107(a) provides that claimants have the burden of

submitting evidence sufficient to justify a belief that the claim is

well grounded, ``[e]xcept when otherwise provided by the Secretary in

accordance with the provisions of this title.'' In Morton, the court

held that VA manual provisions and other internal documents

volunteering VA assistance in all claims, even when they are not well

grounded, would be inconsistent with section 5107(a). VA agrees. A

regulation offering VA assistance in all cases

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would not merely state an exception to the general requirements of

section 5107(a), but would, in effect, negate the requirements of

section 5107(a).

In authorizing VA to create exceptions to the well-grounded-claim

requirements, Congress plainly intended that that requirement would

continue to govern most cases, and that any exceptions would be

reasonably based on special circumstances. Accordingly, we have

concluded that any exceptions to the well-grounded-claim requirement

must be narrow, reasonably based, and not inconsistent with any

statutory provision. We propose to create five exceptions to the

requirement that anyone seeking VA benefits file a well-grounded claim.

First, we propose to relieve a veteran who files a claim for

disability compensation within one year of his or her release from

active duty from having to submit a well-grounded claim. The intent of

Congress, as reflected throughout Title 38, is to afford recently-

released veterans assistance in achieving a rapid social and economic

readjustment to civilian life and attaining a higher standard of living

for themselves and their dependents. Experience with World War II

veterans has shown that it may be very difficult, many years after the

fact, for a veteran to establish entitlement to compensation based on

disabilities existing at the time of his or her discharge. Development

of claims filed within one year of discharge will provide a disability

baseline which could be helpful in adjudicating any claims for service

connection filed in the future. This procedure would allow VA to

compile evidence of veterans' medical conditions at the time of

discharge. The one year time period is also consistent with the time

period for the manifestation of most of the presumptive chronic

disabilities listed in 38 CFR 3.309(a). For these reasons, we believe

it is simply good policy to help veterans recently released from active

duty to obtain the evidence needed to establish entitlement to

disability compensation.

Second, we propose to relieve terminally ill claimants from having

to submit a well-grounded claim. For this purpose, we would define a

``terminally ill person'' as one who has a medical condition that, in

the opinion of a physician, is incurable, and will likely result in

death within one year. VA believes it is reasonable to require some

competent medical evidence supporting a claimant's entitlement to this

exception because the claimant with a medical prognosis of less than a

one year life expectancy is likely to be receiving treatment for the

terminal illness and would have readily available medical records. We

believe this exception is justified because a terminally ill claimant

is likely to be too incapacitated to actively participate in the

evidence-gathering process, and it is in his or her best interest for

VA to determine as quickly as possible whether he or she is entitled to

the claimed benefit. Furthermore, a quick determination of entitlement

may be necessary to entitle the claimant to VA medical care. Finally, a

quick determination of entitlement in this situation will increase the

likelihood that the veteran will have the benefit of VA compensation

during his or her lifetime, and in some instances, may forestall the

need to apply the limitation on the payment of accrued benefits.

As one commenter noted, claimants who could not afford private

medical treatment and have no access to VA medical care may be

disadvantaged by a requirement that they submit medical evidence of a

current disability or evidence of nexus. We agree. Therefore, as a

third exception, we propose to relieve a claimant who submits evidence

from a medical provider that he or she has been denied medical

treatment within the past 12 months for lack of funds, from the

requirement to submit a well-grounded claim.

Fourth, we propose to relieve a veteran who files a claim for

service connection for post traumatic stress disorder (PTSD) from

submitting a well-grounded claim if he or she submits competent

evidence that he or she was engaged in combat with the enemy, and

competent medical evidence that he or she is experiencing symptoms of

PTSD. Medical evidence of a nexus would not be required for the

purposes of well grounding the claim. While the requirement to well

ground a claim is a low threshold, we are concerned that veterans who

underwent the stress of combat and currently are diagnosed with PTSD

not suffer additional stress in attempting to gather evidence during

the claims process and should be afforded special assistance in

developing the claim prior to it being determined to be well grounded.

Fifth, we propose to relieve a veteran from submitting a well-

grounded claim for service connection for PTSD if he or she submits

competent evidence that he or she was a victim of sexual assault in

service and competent medical evidence that he or she is experiencing

symptoms of PTSD. Medical evidence of a nexus would not be required for

the purposes of well grounding the claim. Competent evidence would

include a lay statement describing the claimed in-service incident of

sexual assault. VA is aware that sexual assault in service is often

undocumented. It has provided special guidance to its Regional Office

personnel on developing the evidence to support such claims. VA

believes that veterans who have been traumatized by sexual assault

should not suffer additional stress by attempting to gather evidence

during the claims process and should be afforded assistance in

developing the claim prior to it being determined to be well grounded.

Consistent with these proposed changes, we also propose to revise

38 CFR 3.103 to clarify that VA's duty to assist arises after a

claimant submits a well-grounded claim. The adoption of the proposed

provision as a final rule would also necessitate corresponding changes

in Manual M21-1, including but not limited to Part III paragraphs

1.01(a); 1.03(a); 2.01; 5.19; 5.20; Part VI, paragraphs 1.01(b), 2.08,

and 2.10 which relate to VA developing all pertinent facts to well

ground a claim; fully developing claims before a decision is made on

well groundedness; types of evidence that may serve to establish

reasonable probability of a well-grounded claim; and prohibiting the

denial of a claim before all efforts to assist have been exhausted.

Applications

Claims are initiated by submitting to VA completed application

forms. The forms have been approved by OMB (VA form 21-526, OMB Control

No. 2900-0001; VA form 21-527, OMB Control No. 2900-0002; VA form 21-

534, OMB Control No. 2900-0004; VA form 21-551, OMB Control No. 2900-

0027; VA Form 21-0304, OMB Control No. 2900-0572; VA Form 21-4138, OMB

Control No. 2900-0075.

Unfunded Mandates

The Unfunded Mandates Reform Act requires (in section 202) that

agencies prepare an assessment of anticipated costs and benefits before

developing any rule that may result in an expenditure by State, local,

or tribal governments, in the aggregate, or by the private sector, of

$100 million or more in any given year. This final rule will have no

consequential effect on State, local, or tribal governments.

Executive Order 12866

This proposed rule has been reviewed by OMB under Executive Order

12866.

Regulatory Flexibility Act

The Secretary hereby certifies that the adoption of these

amendments will not have a significant economic impact on a substantial

number of small entities as

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they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612.

The reason for this certification is that these amendments would not

directly affect any small entities. Only individuals could be directly

affected. Therefore, pursuant to 5 U.S.C. 605(b), these amendments are

exempt from the initial and final regulatory flexibility analysis

requirements of section 603 and 604.

Catalog of Federal Domestic Assistance Program Numbers

The Catalog of Federal Domestic Assistance program numbers are

64.100, 64.101, 64.104, 64.105, 64.106, 64.109, and 64.110.

List of Subjects in 38 CFR Part 3

Administrative practice and procedure, Claims, Disability benefits,

Health care, Pensions, Veterans, Vietnam.

Approved: November 18, 1999.

Togo D. West, Jr.,

Secretary of Veterans Affairs.

For the reasons set forth in the preamble, 38 CFR Part 3 is

proposed to be amended as follows:

PART 3--ADJUDICATION

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

Compensation

1. The authority citation for part 3, subpart A continues to read

as follows:

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

Sec. 3.103 [Amended]

2. In Sec. 3.103, paragraph (a) is amended by adding ``who has

filed a well-grounded claim'' immediately after ``to assist a

claimant''.

3. Section 3.159 is revised to read as follows:

Sec. 3.159 Claimant's responsibility to submit a well-grounded claim

and VA's duty to help a claimant obtain evidence.

(a) Definitions. For purposes of this section, the following

definitions apply:

(1) Well-grounded claim means:

(i) A claim meeting the provisions of paragraphs (b)(2), (b)(3), or

(b)(4) of this section; and

(ii) For any benefit under this part for which VA has not

established specific criteria for determining whether a claim for that

benefit is well grounded, means a claim for which there is some

competent evidence with respect to each element necessary to establish

entitlement to the particular benefit sought.

(2) Competent evidence means evidence offered by an individual who

is qualified by training or experience to offer an opinion on a matter.

Lay evidence is competent when it is offered by a person who has first-

hand knowledge of facts or circumstances and relates matters that can

be observed and described by a lay person. Medical evidence is

competent when it is offered by a person who, through education, is

qualified to offer a medical opinion on a matter requiring medical

expertise.

(3) A terminally ill person means one who has a medical condition

that in the opinion of a physician is incurable, and will likely result

in death within twelve months.

(b) Claimant's responsibility to file a well-grounded claim. A

person claiming VA benefits must submit sufficient evidence to justify

a belief by a fair and impartial individual that the claim is well

grounded. Evidence does not have to prove entitlement to a benefit in

order to well ground a claim, but there must be some competent evidence

addressing each element necessary to establish entitlement to the

benefit. VA will presume evidence is credible for the purpose of making

a claim well grounded unless it is incredible on its face or beyond the

expertise of the person making the statement. If a regulatory or

statutory presumption relieves a claimant from having to submit

evidence on specific elements to establish entitlement to a benefit,

the claimant need not submit evidence on those elements to well ground

the claim. See, e.g., 38 CFR 3.304(f); 3.309; 3.316; 3.317.

(1) Exceptions. VA will help the claimant obtain additional

evidence pertinent to the claim even though the claim is not well

grounded:

(i) If a claimant files a claim for disability compensation within

one year of his or her release from active military, naval, or air

service;

(ii) If a claimant submits evidence from a medical provider that he

or she has been denied medical treatment within the past 12 months due

to lack of funds;

(iii) If a claimant submits competent medical evidence that he or

she is terminally ill;

(iv) If a claimant submits competent evidence that he or she was

engaged in combat with the enemy, and competent medical evidence that

he or she is experiencing symptoms of post traumatic stress disorder;

or

(v) If a claimant submits competent evidence that he or she was a

victim of sexual assault in service and competent medical evidence that

he or she is experiencing symptoms of PTSD.

(2) Disability compensation. A claimant may well-ground a claim for

disability compensation in one of three ways:

(i) Generally, by submitting competent medical evidence of a

current disability; competent medical or, in cases where the condition

is observable by a lay person, lay evidence, that a disease or injury

was incurred in or aggravated by service or during an applicable

presumption period; and, in the case of inservice disease or injury,

competent medical evidence indicating that there is a plausible link

between the current disability and the inservice disease or injury.

(ii) Where the claimant claims service connection for a chronic

disability, by submitting competent medical evidence that he or she

currently has a chronic disability; competent medical or where the

disability is observable by a lay person, lay evidence that the chronic

disability existed in service or during an applicable presumption

period; and competent medical evidence that he or she has current signs

and symptoms which are manifestations of the same chronic disability.

38 CFR 3.303(b).

(iii) Where the claimant claims service connection for a disability

whose symptoms have existed continuously since service, by submitting

competent medical or where the disability is observable by a lay

person, lay evidence that a disability existed during service or any

applicable presumptive period; competent medical or where the

disability is observable by a lay person, lay evidence that signs or

symptoms of that disability have existed continuously from the time of

service to the time the disability was first definitely diagnosed; and

competent medical evidence that the claimant currently has the same

disability. 38 CFR 3.303(b).

(3) Increased disability compensation. A veteran's statement that

his or her service-connected disability has worsened is sufficient, on

its own, to well ground a claim for increased compensation benefits.

(4) Disability Pension. To well ground a claim for nonservice-

connected disability pension, a claimant must submit:

(i) Evidence of qualifying wartime service;

(ii) Evidence of income within the statutory requirements of 38

U.S.C. 1521;

(iii) Competent medical evidence that the claimant has a permanent

disability; and

(iv) Competent medical or, where the disability is observable by a

lay person, lay evidence that the claimant is unable to work because of

that disability.

[[Page 67534]]

(c) VA's duty to help claimants obtain evidence. Upon receipt of

any claim, VA will determine whether it is well grounded before taking

any further action.

(1) If a claim is well grounded, except as otherwise provided in

paragraph (c)(3) of this section for certain multiple claims, VA will

help the claimant, as specified in this paragraph, obtain additional

relevant lay or medical evidence, of which it is reasonably aware, that

is needed to establish entitlement to the benefit sought. VA will

obtain service medical records in claims for service-connected

disability or death. Provided the claimant has provided enough

information to identify and locate the evidence including the location

and approximate dates and time frame covered by the records, VA will

request, directly from the source, relevant existing evidence which is

in the custody of military authorities, other Federal agencies, state

and local governmental authorities, VA medical facilities, private

medical providers, current and former employers, and other non-

governmental individuals and entities. If necessary for such record

requests, the claimant must authorize the release of records in a form

acceptable to the person or agency holding the records. VA will not pay

any fees charged for providing the evidence. If VA is unable to obtain

any evidence it has requested after reasonable effort and after a

reasonable period of time, it will advise the claimant of that fact,

and of the reasons why, if known. VA will also advise the claimant that

he or she is ultimately responsible for providing the evidence and that

unless VA hears from the claimant within 30 days from the date on the

notice, VA will proceed to decide the claim on the basis of the

evidence of record.

(2) If a claim is not well grounded, VA will notify the claimant of

the types of evidence necessary to well ground the claim, and allow him

or her 30 days from the date on the notice to submit it. During this

30-day period, VA will request service medical records in claims for

service-connected disability or death. It will also request VA medical

records that the claimant has identified as relevant to the claim,

provided the claimant has provided enough information to identify and

locate the evidence including the location and approximate dates

covered by the records. VA will not schedule a VA examination or

request any other evidence during this period. If, after 30 days, VA

has not received evidence that well grounds the claim, it will deny the

claim as not well grounded.

(3) If an application for benefits includes multiple claims with at

least one claim that is well grounded and one that is not, VA will

notify the claimant of the types of evidence necessary to well ground

each claim that is not well grounded, and allow the claimant 30 days

from the date on the notice to submit it. During this 30-day period, VA

will request service medical records. It will also request any VA

medical records the claimant has identified as relevant to the

claim(s), but only if the claimant has provided enough information to

identify and locate the evidence including the location and approximate

dates covered by the records. VA will not request any other evidence or

schedule VA examinations for any of the claims during the 30-day

period. If, after 30 days, VA has not received evidence that well

grounds each claim, it will deny the claims that are not well grounded

and will help the claimant obtain any additional evidence as set forth

in paragraph (c)(1) of this section that it needs to determine

entitlement to the benefits for which he or she has filed well-grounded

claims.

(4) If a claim has been denied as not well grounded, VA will review

any evidence relevant to that claim that it receives within one year

from the date of notification to the claimant under paragraph (c)(2) or

(c)(3) of this section to determine whether, based on all the evidence

of record, the claim is well grounded. See 38 CFR 3.109(a). If the

evidence received does not well ground the claim, VA will again deny

the claim as not well grounded. If the evidence received well grounds

the claim, VA will help the claimant obtain any additional evidence as

set forth in paragraph (c)(1) of this section that it needs to

determine entitlement to the benefit sought.

(Authority: 38 U.S.C. 5107)

[FR Doc. 99-31076 Filed 12-1-99; 8:45 am]

BILLING CODE 8320-01-P