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Berta
I can never find this in the search and maybe it will be easier to find now-
[Federal Register: September 6, 2006 (Volume 71, Number 172)]
[Rules and Regulations]
[Page 52455-52457]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06se06-19]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AM15
New and Material Evidence
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document amends the Department of Veterans Affairs (VA)
rules regarding the reconsideration of decisions on claims for benefits
based on newly discovered service records received after the initial
decision on a claim. The revision will provide consistency in
adjudication of certain types of claims.
DATES: Effective Date: This amendment is effective October 6, 2006.
FOR FURTHER INFORMATION CONTACT: Maya Ferrandino, Consultant,
Regulations Staff (211D), Compensation and Pension Service, Veterans
Benefits Administration, Department of Veterans Affairs, 810 Vermont
Ave., NW., Washington DC 20420, (202) 273-7211.
SUPPLEMENTARY INFORMATION: On June 20, 2005, VA published in the
Federal Register (70 FR 35388) a proposal to revise VA's rules
regarding the reconsideration of decisions on claims for benefits based
on newly discovered service records received after the initial decision
on a claim. Interested persons were invited to submit written comments
on or before August 19, 2005. We received comments from the National
Organization of Veterans' Advocates and three members of the public.
We are making two changes to 38 CFR 3.156©(2) based on internal
agency reconsideration. First, we are revising the title of the Joint
Services Records Research Center (JSRRC). In the proposed rulemaking,
we stated the title as Center for Research of Unit Records (CRUR),
which is incorrect. Instead, we will state the correct title in the
regulation, which is Joint Services Records Research Center. Second, we
are inserting the word ``because'' after ``, or'' in the first sentence
of Sec. 3.156©(2) to improve readability. We are not altering the
substantive content of the paragraph by making these changes.
One commenter stated that she supported this rulemaking and that
clarification of the rules currently in Sec. 3.156 is needed. We
appreciate this comment and believe that this rulemaking will improve
the clarity of that regulation.
One commenter stated that in the proposed rule, we use the phrase
``whichever is later'' in numerous places. The commenter stated that if
we are clarifying retroactive effective dates, the term should be
``former'', as it would mean ``before the date VA uses to base the
effective date.''
At Sec. 3.156©(3), the proposed regulation states:
An award made based all or in part on the records identified by
paragraph ©(1) of this section is effective on the date
entitlement arose or the date VA received the previously decided
claim, whichever is later, or such other date as may be authorized
by the provisions of this part applicable to the previously decided
claim.
As stated in the proposed rulemaking, proposed Sec. 3.156©(2) is
derived from current 38 CFR 3.400(q), regarding effective dates for
awards based on new and material evidence. Section 3.400, VA's
regulation regarding effective dates, uses the terminology ``date of
receipt of the claim or the date entitlement arose, whichever is the
later.'' This language is derived from 38 U.S.C. 5110, the authorizing
statute for effective dates, which states that ``the effective date of
an award * * * shall be fixed in accordance with the facts found, but
shall not be earlier than the date of receipt of application
therefor.'' The statute and the current regulation thus require that
the effective date of the award be the later of the date of entitlement
or the date VA received the application for the benefit. As such, the
use of the term ``later'' in the proposed regulation is consistent with
the statute and VA's long-standing terminology regarding effective
dates. We believe the phrase ``whichever is later'' is well understood
by claimants, their representatives, and VA staff. We therefore make no
change based on this comment.
One commenter stated that VA should clearly define the phrases
``effective on the date entitlement arose or the date VA received the
previously denied claim, whichever is later,'' ``or such other date'',
and ``except as it may be affected by the filing date of the initial
claim.''
[[Page 52456]]
These phrases, from proposed Sec. 3.156©(3) and (4), all are
based on language from VA's regulation regarding effective dates, Sec.
3.400. In the proposed regulation, we are conforming the effective date
provision to VA's existing regulations regarding effective dates. We
believe these terms are well understood by claimants, their
representatives, and VA staff. The meaning of the phrase ``effective on
the date entitlement arose or the date VA received the previously
denied claim, whichever is later,'' is discussed above and we do not
believe further clarification is needed as to that phrase.
As to the second phrase referenced by the commenter, proposed Sec.
3.156©(3) would state that the effective date of an award based on
newly discovered service department records is the date entitlement
arose or the date VA received the previously decided claim, whichever
is later, or ``such other date as may be authorized by the provisions
of this part applicable to the previously decided claim.'' Certain VA
regulations authorize effective dates other than the date entitlement
arose or the date VA received the claim. For example, if a claim for
disability compensation was received within one year of separation from
service, the effective date under 38 CFR 3.400((2)(i) may be the day
following separation from service. The reference to ``such other date''
merely indicates that VA will apply such effective-date provisions when
they are controlling with respect to the previously decided claim.
As to the third phrase, proposed Sec. 3.156©(4) states that,
when an award is made based on new service department records, the
disability rating assigned by VA for any past period will accord with
the medical evidence of record ``except insofar as [the rating] may be
affected by the date of the initial claim.'' This limitation merely
reflects the rule, discussed above, that the effective date of any
award or rating may be affected by the date of the initial claim for
benefits. Because we believe these three phrases are sufficiently
clear, we make no change based on this comment.
This commenter additionally expressed concern with proposed
paragraph ©(2), which states that VA cannot reconsider a claim under
paragraph ©(1) based on records that ``did not exist when VA decided
the claim.'' The commenter asks how it is possible that records of a
veteran could not exist, and seems to ask how it is possible that
relevant records could be created after a claim has been denied. In
proposed paragraph ©(2), we are referring to records such as modified
discharges and corrected military records. The effective date of an
award based on such evidence is controlled by 38 U.S.C. 5110(i) and is
beyond the scope of this rule. Hence, proposed paragraph ©(2)
expressly states that the proposed regulation does not apply in such
cases. Therefore, we make no change based on this comment.
One commenter addressed the provision in the proposed rule at Sec.
3.156©(2), which states that the provisions of subsection ©(1) will
not apply when the claimant fails to provide sufficient information for
VA to identify and obtain the records. The commenter stated that this
language is contrary to VA's duty to assist under 38 U.S.C.
5103A©(1). The commenter asserted that this statute limits VA's duty
to obtain some records unless the claimant has furnished information
sufficient to locate the records, but contains no limitation on the
duty of VA to obtain service medical records.
As an initial matter, we note that this rule does not purport to
define the scope of VA's duty to assist claimants under section 5103A.
Rather, the purpose of this rule is to clarify long-standing VA rules,
issued pursuant to the Secretary's general authority under 38 U.S.C.
501(a), which authorize VA to award benefits retroactive to the date of
a previously decided claim when newly discovered service department
records are received. The scope of this rule is not intended to be
coextensive with the scope of VA's duty to assist claimants. Section
5103A, as enacted in 2000 by the Veterans Claims Assistance Act of 2000
(VCAA), Public Law No. 106-475, requires VA to assist claimants in
obtaining evidence to substantiate their claims, including service
medical records. If VA fails to provide such assistance in any claim to
which that law applies, a claimant may seek direct administrative or
judicial review to ensure VA's compliance with section 5103A. This rule
will not affect any individual's rights under section 5103A. The
provisions of section 3.156©, which predate by decades the enactment
of the VCAA, do not prescribe rights or duties concerning VA assistance
in developing evidence but, rather, prescribe standards for reopening
previously denied claims and establishing the effective dates of awards
in such reopened claims. Because this rule does not affect any
claimant's rights under 38 U.S.C. 5103A, it does not conflict with
section 5103A.
Further, we believe that newly discovered service medical records
ordinarily would provide a basis for retroactive benefits in disability
compensation claims under this rule as proposed, if the provisions of
the rule are otherwise met. Proposed Sec. 3.156©(2) refers to
circumstances in which the claimant failed to provide information
sufficient for VA to identify and obtain the records at issue. When a
claim for disability benefits is filed, VA seeks to obtain a complete
copy of the veteran's service medical records from the service
department. Accordingly, with respect to service medical records, a
completed application form that sufficiently identifies the veteran's
branch and dates of service will ordinarily be sufficient to enable VA
to obtain the veteran's service medical records. If a newly discovered
service department record is one that VA should have received at the
time it obtained the veteran's service medical records, we believe it
ordinarily would be within the scope of proposed Sec. 3.156©(1).
However, some types of service records would not commonly be associated
with a veteran's service medical records even though they may reflect
or otherwise relate to treatment or hospitalization during service.
With respect to such records, we believe a determination must be made
on a case-by-case basis as to whether the claimant provided VA with
sufficient information to identify and obtain the record at the time of
the prior claim. Therefore, we make no change based on this comment.
A commenter discussed that when a claimant is denied benefits for a
disability, and then files a new claim based on a post-service change
in diagnosis, and that claim is granted, the effective date should be
the date of the original claim. This comment is outside the scope of
the proposed regulation. The proposed regulation addresses new service
medical records, while the comment addresses a new diagnosis in post-
service records. Therefore, we make no change based on this comment.
VA appreciates the comments submitted in response to the proposed
rule. Based on the rationale stated in the proposed rule and in this
document, the proposed rule is adopted with the changes noted.
Paperwork Reduction Act
This document contains no provisions constituting a collection of
information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).
Regulatory Flexibility Act
The Secretary hereby certifies that this final rule will not have a
significant economic impact on a substantial number of small entities
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. The reason for
[[Page 52457]]
this certification is that this amendment would not directly affect any
small entities. Only VA beneficiaries could be directly affected.
Therefore, pursuant to 5 U.S.C. 605(<_<, this final rule is exempt from
the initial and final regulatory flexibility analysis requirements of
sections 603 and 604.
Executive Order 12866
Executive Order 12866 directs agencies to assess all costs and
benefits of available regulatory alternatives and, when regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety,
and other advantages; distributive impacts; and equity). The Order
classifies a rule as a significant regulatory action requiring review
by the Office of Management and Budget if it meets any one of a number
of specified conditions, including: having an annual effect on the
economy of $100 million or more, creating a serious inconsistency or
interfering with an action of another agency, materially altering the
budgetary impact of entitlements or the rights of entitlement
recipients, or raising novel legal or policy issues. VA has examined
the economic, legal, and policy implications of this final rule and has
concluded that it is a significant regulatory action under Executive
Order 12866.
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any year. This final rule would have no such effect on
State, local, and tribal governments, or on the private sector.
Catalog of Federal Domestic Assistance Numbers and Titles
The Catalog of Federal Domestic Assistance program numbers and
titles for this proposal are 64.100, Automobiles and Adaptive Equipment
for Certain Disabled Veterans and Members of the Armed Forces; 64.101,
Burial Expenses Allowance for Veterans; 64.102, Compensation for
Service-Connected Deaths for Veterans' Dependents; 64.104, Pension for
Non-Service-Connected Disability for Veterans; 64.105, Pension to
Veterans Surviving Spouses, and Children; 64.106, Specially Adapted
Housing for Disabled Veterans; 64.109, Veterans Compensation for
Service-Connected Disability; and 64.110, Veterans Dependency and
Indemnity Compensation for Service-Connected Death.
List of Subjects in 38 CFR Part 3
Administrative practice and procedure, Claims, Disability benefits,
Health care, Pensions, Radioactive materials, Veterans, Vietnam.
Approved: May 26, 2006.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.
0
For the reasons set out in the preamble, 38 CFR part 3 is amended as
set forth below:
PART 3--ADJUDICATION
Subpart A--Pension, Compensation, and Dependency and Indemnity
Compensation
0
1. The authority citation for part 3, subpart A continues to read as
follows:
Authority: 38 U.S.C. 501(a), unless otherwise noted.
0
2. Section 3.156 is amended by:
0
a. Adding a paragraph heading to paragraph (a).
0
b. Adding a paragraph heading to paragraph (.
0
c. Revising paragraph ©.
The additions and revision read as follows:
Sec. 3.156 New and material evidence.
(a) General. * * *
( Pending claim. * * *
© Service department records. (1) Notwithstanding any other
section in this part, at any time after VA issues a decision on a
claim, if VA receives or associates with the claims file relevant
official service department records that existed and had not been
associated with the claims file when VA first decided the claim, VA
will reconsider the claim, notwithstanding paragraph (a) of this
section. Such records include, but are not limited to:
(i) Service records that are related to a claimed in-service event,
injury, or disease, regardless of whether such records mention the
veteran by name, as long as the other requirements of paragraph © of
this section are met;
(ii) Additional service records forwarded by the Department of
Defense or the service department to VA any time after VA's original
request for service records; and
(iii) Declassified records that could not have been obtained
because the records were classified when VA decided the claim.
(2) Paragraph ©(1) of this section does not apply to records that
VA could not have obtained when it decided the claim because the
records did not exist when VA decided the claim, or because the
claimant failed to provide sufficient information for VA to identify
and obtain the records from the respective service department, the
Joint Services Records Research Center, or from any other official
source.
(3) An award made based all or in part on the records identified by
paragraph ©(1) of this section is effective on the date entitlement
arose or the date VA received the previously decided claim, whichever
is later, or such other date as may be authorized by the provisions of
this part applicable to the previously decided claim.
(4) A retroactive evaluation of disability resulting from disease
or injury subsequently service connected on the basis of the new
evidence from the service department must be supported adequately by
medical evidence. Where such records clearly support the assignment of
a specific rating over a part or the entire period of time involved, a
retroactive evaluation will be assigned accordingly, except as it may
be affected by the filing date of the original claim.
(Authority: 38 U.S.C. 501(a))
* * * * *
0
3. Section 3.400 is amended by:
0
a. Revising the heading of paragraph (q).
0
b. Removing paragraph (q)(1) heading.
0
c. Redesignating paragraph (q)(1)(i) as new paragraph (q)(1).
0
d. Removing paragraph (q)(2).
0
e. Redesignating paragraph (q)(1)(ii) as new paragraph (q)(2).
The revision reads as follows:
Sec. 3.400 General.
* * * * *
(q) New and material evidence (Sec. 3.156) other than service
department records. * * *
* * * * *
[FR Doc. E6-14746 Filed 9-5-06; 8:45 am]
BILLING CODE 8320-01-P
GRADUATE ! Nov 2nd 2007 American Military University !
When thousands of Americans faced annihilation in the 1800s Chief
Osceola's response to his people, the Seminoles, was
simply "They(the US Army)have guns, but so do we."
Sameo to us -They (VA) have 38 CFR ,38 USC, and M21-1- but so do we.
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