Proposed Rule On Newly Discovered Service Records-

[Guest Berta]

[Federal Register: June 20, 2005 (Volume 70, Number 117)]

[Proposed Rules]

[Page 35388-35390]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr20jn05-8]

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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: Proposed rule.

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SUMMARY: The Department of Veterans Affairs proposes to revise its

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 proposed revision would provide consistency in

adjudication of certain types of claims.

DATES: Comments must be received on or before August 19, 2005.

ADDRESSES: Written comments may be submitted by: mail or hand-delivery

to Director, Regulations Management (00REG1), Department of Veterans

Affairs, 810 Vermont Ave., NW., Room 1068, Washington, DC 20420; fax to

(202) 273-9026; e-mail to VAregulations@mail.va.gov; or, through http://www.Regulations.gov.

Comments should indicate that they are submitted

in response to ``RIN 2900-AM15.'' All comments received will be

available for public inspection in the Office of Regulation Policy and

Management, Room 1063B, between the hours of 8 a.m. and 4:30 p.m.,

Monday through Friday (except holidays). Please call (202) 273-9515 for

an appointment.

FOR FURTHER INFORMATION CONTACT: Maya Ferrandino, Consultant,

Compensation and Pension Service (211A), Policy and Regulations Staff,

Veterans Benefits Administration, 810 Vermont Avenue, NW., Washington,

DC 20420, (202) 273-7232.

SUPPLEMENTARY INFORMATION: To provide consistency in adjudication, we

propose to revise current 38 CFR 3.156©, to establish clearer rules

regarding reconsideration of decisions on the basis of newly discovered

service department records. We propose to include the substance of

current 38 CFR 3.400(q)(2) in revised Sec. 3.156©. Current Sec.

3.400(q)(2) governs the effective date of benefits awarded when VA

reconsiders a claim based on newly discovered service department

records. We propose to redesignate current Sec. 3.400(q)(1) as new

Sec. 3.400(q)(1) and (2) without substantive change.

Current Sec. Sec. 3.156© and 3.400(q)(2) together establish an

exception to the general effective date rule set forth in Sec. 3.400,

which provides that the effective date of an award of benefits will be

the date of claim or the date entitlement arose, whichever is the

later. The exception applies when VA receives official service

department records that were unavailable at the time that VA previously

decided a claim for benefits and those records lead VA to award a

benefit that was not granted in the previous decision. Under this

exception, the effective date of such an award may relate back to the

date of the original claim or date entitlement arose even though the

decision on that claim may be final under Sec. 3.104.

The provisions in current Sec. Sec. 3.156© and 3.400(q)(2) are

also an exception to the general rule in Sec. 3.156(a) concerning

claims to reopen based upon ``new and material evidence.'' Generally,

Sec. 3.156(a) and current Sec. 3.400(q)(1) provide that a claimant

must submit new and material evidence to reopen a finally denied claim,

and the effective date for the award of benefits based upon such

evidence may be no earlier than the date VA received the claim to

reopen. Current Sec. 3.156© states that new and material evidence

may consist of supplemental service department records received before

or after the decision has become final. Current Sec. 3.156© is

confusing because including a ``new and material'' requirement infers

that VA may reopen a claim when service department records that were

unavailable at the time of the prior decision are received, and the

effective date would be the date of the reopened claim. In practice,

when VA receives service department records that were unavailable at

the time of the prior decision, VA may reconsider the prior decision,

and the effective date assigned will relate back to the date of the

original claim, or the date entitlement arose, whichever is later. We

propose to revise Sec. 3.156© to clarify VA's current practice

regarding newly received service department records. To eliminate

possible confusion regarding the effective date assigned based on newly

received service department records, we propose to remove the ``new and

material'' requirement in current Sec. 3.156©.

We also propose to revise current Sec. 3.156© by revising the

statement in current Sec. 3.156© that states that VA will reconsider

its decision regarding a claim for benefits if it receives misplaced

service department records or certain corrected service department

records. In proposed paragraph Sec. 3.156©(1), we propose to

elaborate on this statement and generally describe service department

records as including any official service department records relating

to the 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 © are met. We intend that this broad

description of ``service department records'' will also include unit

records, such as those obtained from the Center for Research of Unit

Records (CRUR) that pertain to military experiences claimed by a

veteran. Such evidence may be particularly valuable in connection with

claims for benefits for post traumatic stress disorder.

We also propose to clarify the language in current Sec. 3.156©,

which suggests that reconsideration may occur only if the service

department records ``presumably have been misplaced and have now been

located.'' Even though the current language can be read as a

limitation, in practice, VA does not limit its reconsideration to

``misplaced'' service department records. Rather, VA intended the

reference to misplaced records as an example of the type of service

department records that may have been unavailable when it issued a

decision on a claim. The proposed revision to Sec. 3.156© removes

this ambiguity.

Proposed Sec. 3.156©(1)(iii), adds ``declassified records that

could not have been obtained because the records were classified when

VA decided the claim'' as an example of service department records that

may have been unavailable at the time of the prior decision.

Declassified records may provide evidence of injuries, exposures, or

other events in service that may support a claim for VA benefits.

Classified service department records are similar to misplaced records

and subsequently corrected records in that

[[Page 35389]]

they were unavailable at the time of VA's initial adjudication of the

claim. Therefore, it is reasonable to include declassified service

department records within the scope of the proposed rule.

We propose in Sec. 3.156©(2) to limit the application of this

rule by stating that it ``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 the claimant failed to provide VA

sufficient information for VA to identify and obtain the records from

the respective service department, the Center for Research of Unit

Records, or from any other official source.'' Reconsideration based

upon service department records would not be available in cases where

the claimant did not provide information that would have enabled VA or

another federal agency to identify and search for relevant records.

This limitation would allow VA to reconsider decisions and

retroactively evaluate disability in a fair manner, on the basis that a

claimant should not be harmed by an administrative deficiency of the

government, but limited by the extent to which the claimant has

cooperated with VA's efforts to obtain these records.

We also propose to limit the application of Sec. 3.156© to avoid

conflict with 38 U.S.C. 5110(i), which specifically limits the

effective date of an award based on corrected service department

records to no earlier than one year before the date on which the

previously disallowed claim was reopened. See also 38 CFR 3.400(g).

Accordingly, proposed Sec. 3.156© excludes decisions based upon this

type of corrected service department records because the proposed rule

does not apply to ``records that VA could not have obtained * * *

because the records did not exist when VA decided the claim.'' For the

sake of additional clarity, we propose to cross reference 38 CFR

3.400(g) at the end of the rule.

We propose to remove the language in current Sec. 3.156©

requiring the submission of ``a supplemental report from the service

department'' as a prerequisite to reconsideration and retroactive

evaluation of disability, because VA does not require such supplemental

reports in its current administrative proceedings. If, for example, VA

itself had been in possession of the records during the prior

adjudication but did not associate the records with the claim before a

final denial, then the evidence would still warrant reconsideration and

a retroactive evaluation of disability or entitlement to benefits under

this rule. For the same reason, we propose to eliminate the third

sentence of current Sec. 3.156©, which refers to the same type of

report.

Current Sec. Sec. 3.156© and 3.400(q)(2) may be read as

requiring an earlier effective date for the award of benefits upon

reconsideration only when the basis for the award is newly discovered

service department records. Proposed Sec. 3.156©(3) eliminates this

ambiguity and clarifies that ``[a]n award 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.'' This provision would apply, for example, in cases

where a veteran files a claim for disability compensation, which VA

denies because there is no evidence of an in-service injury. Years

later, if VA receives service department records that show an in-

service injury, and obtains a medical opinion that links that injury to

the claimant's current disability, it would grant service connection.

Although the doctor's opinion is not a document that meets the

definition of proposed Sec. 3.156©(1), the service department record

showing incurrence, which provided the basis for the medical opinion,

is such a document. Therefore, the veteran in this example would be

entitled to reconsideration of the prior decision and retroactive

evaluation of disability. Any award of benefits as a result of such

reconsideration would be effective on the date entitlement arose or the

date of claim, whichever is later, or any other date made applicable by

law or regulation to previously decided claims.

Benefits awarded upon reconsideration of a claim and/or retroactive

evaluations of disability under current Sec. 3.156© are effective on

the dates specified in current Sec. 3.400(q)(2).

Because we propose to include the rule regarding the effective date

of an award of benefits based all or in part on newly discovered

service department records in Sec. 3.156©, we additionally propose

to remove that effective date provision from current Sec. 3.400(q).

Paperwork Reduction Act

This document contains no new collections of information under the

Paperwork Reduction Act (44 U.S.C. 3501-3521). To the extent the

proposed revision to Sec. 3.156© applies to service department

records obtained by VA or provided by a service department, it does not

involve a collection of information under the Paperwork Reduction Act.

To the extent the proposed revision applies to service department

records submitted by individual claimants, the collection of

information has been approved by OMB in connection with the VA forms

governing applications for compensation, pension, and dependency and

indemnity compensation (DIC). Those forms govern the submission of

evidence, including service department records, that are relevant to

claims for those benefits. This proposed rule would merely explain what

actions VA will take when such evidence is submitted after VA has made

its initial decision on the claim. The OMB approval numbers for those

information collections are 2900-0001 (VA Form 21-526, Veterans'

Application for Compensation and/or Pension); 2900-004 (VA Form 21-534,

Application for DIC, Death Compensation, and Accrued Benefits by a

Surviving Spouse or Child); and 2900-005 (VA Form 21-535, Application

for DIC by Parent(s)).

Regulatory Flexibility Act

The Secretary hereby certifies that this proposed regulatory

amendment 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. This proposed amendment would not

affect any small entities. Therefore, pursuant to 5 U.S.C. 605(:(, this

proposed amendment is exempt from the initial and final regulatory

flexibility analysis requirements of sections 603 and 604.

Executive Order 12866

This document has been reviewed by the Office of Management and

Budget under Executive Order 12866.

Unfunded Mandates

The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, 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 (adjusted annually for inflation) in any given

year. This rule would have no such effect on State, local, or tribal

governments, or the private sector.

Catalog of Federal Domestic Assistance Numbers

The Catalog of Federal Domestic Assistance program numbers for this

proposal are 64.100, 64.101, 64.102, 64.104-106, 64.109, and 64.110.

[[Page 35390]]

List of Subjects in 38 CFR Part 3

Administrative practice and procedure, Claims, Disability benefits,

Health care, Pensions, Veterans.

Approved: March 2, 2005.

R. James Nicholson,

Secretary of Veterans Affairs.

For the reasons set out in the preamble, VA proposes to amend 38

CFR part 3 as follows:

PART 3--Adjudication

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

as follows:

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

2. Section 3.156 is amended by:

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

b. Adding a paragraph heading to paragraph (:P.

c. Revising paragraph ©.

The additions and revision read as follows:

Sec. 3.156 New and material evidence.

(a) General. * * *

(:P 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 the claimant failed

to provide sufficient information for VA to identify and obtain the

records from the respective service department, the Center for Research

of Unit Records, 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))

* * * * *

3. Section 3.400 is amended by:

a. Revising the heading of paragraph (q).

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

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

d. Removing paragraph (q)(2).

e. Redesignating paragraph (q)(1)(ii) as new paragraph (q)(2).

The revision reads as follows:

[wallyg]

Berta,

It hasn't shown up yet in the latest version of 38 CFR Pt 3

[Guest jstacy]

Berta, does that mean that Claims that were denied due to inavailability of service records even the claim had become final can be awarded back to the original filing date provided the evidence was listed in the service record?

That is exactly what happened to me in 1994 on 2 claims.

I will be looking dilligently for this change to appear.

[Guest Berta]

John- that is how I understand this too----

It certainly could help vets whose military records were lacking when their claim was denied.

As soon as I find out more -I will post the info-

It might be a long way off before becoming an actual reg in 38 CFR.

Berta

[Guest jstacy]

Berta, I thought so. I did some additional searches for this last night and came up nil.

[Guest jstacy]

Update: as of March 9-2006 This issue is still listed as a Proposal.