Newly Discovered Smrs

[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]

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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AM15

New and Material Evidence

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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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.

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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

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

follows:

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

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2. Section 3.156 is amended by:

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a. Adding a paragraph heading to paragraph (a).

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b. Adding a paragraph heading to paragraph (.

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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))

* * * * *

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3. Section 3.400 is amended by:

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a. Revising the heading of paragraph (q).

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b. Removing paragraph (q)(1) heading.

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c. Redesignating paragraph (q)(1)(i) as new paragraph (q)(1).

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d. Removing paragraph (q)(2).

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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

[jbasser]

Berta, thanks for re-posting this information, As you are aware, I have followed this rule from its infancy as a proposal. When this rule became final in 2006, I filed one of my appeals from a November 06 decision based on this rule. When I get it resolved, I will post the results on the board and we all will see just how strong this rule is. I believe my case will be one of the the first one using the rule.

I am excited to see how it will proceed.

John

[Berta]

John-Yes -I remember that and found the discussion here at hadit and the link to the rule- you would think this rule would have gotten more notice by vet orgs -etc-

I bet you are the first vet who used it !

Wouldn't it be great if it works for you.

[jbasser]

You are correct as usual Berta, I wonder how many vet organizations even know this rule is in place?

I would say not too many. I know for a fact my AL rep did not know.

[Berta]

You are correct as usual Berta, I wonder how many vet organizations even know this rule is in place?

I would say not too many. I know for a fact my AL rep did not know.

John - we have ESP- I almost said the same thing in my last post-

When the CAVC ran the Haas ticker I immediately contacted my POAs- they said who is Haas!

Cripes they had no idea of how important this case by a BWV had become-

I have a question for anyone here-

years ago my former rep asked me to apply for a job with them as a vet rep-

I laughed at his suggestion-

I would have had to buy a laptop with wireless internet access and load it up-because they do not have access to the internet-

they have no access to any CAVC decision, nor any new regs,not to M21-1 nor even the VA website-

I have no idea how they get the most recent information they need-

It seems their PCs only have certain forms that are available at the VA web site and they have email that doesnt work right most of the time.

Do any of you have reps who can actually access the internet?

I think we here at hadit- who are willing to post links etc to the info vets need- provide much better claims help within hours- to vets than these service orgs do all year.

[luvHIM]

Berta, I believe this 2006 change/amendment is the reason my claim is being worked and the one on appeal is being given new attention. I submitted SMR's the RO had indicated in their denial "any further attempts to locate would be futile." But when I requested my C-File, new interest developed. In fact, my C-File shows the RO only made two attempts to obtain the SMR in question. I obtained them from NPRC and sent a copy to RO in May 07.

As far as the local VSO, I have never seen a computer in the SO's ofc. But the secretary/receptionist uses one. However, I'm sure it is not setup for Internet access. I have noticed various regs and manuals. But I have only had one SO actually pull one of them and look in it.

Oddly, in fact, when I went to the local office a few weeks ago, I was asked if I would consider becoming a SO. But without the available resources at my disposal to "truly" assist a veteran I feel like I would be there in vain.

I agree that Hadit.com has provided me with more insight and help (if no more than getting me pointed in the right direction) and it is much appreciated. I will say again, I have shared this site with many of my vet friends and or wives of vets who are trying to help their spouses with his claim.

[ronn]

As the saying goes " you can't teach an old dog new tricks. " No offence to anyone, but in this case I think it's true! :D