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Wings
[Federal Register: March 31, 2006 (Volume 71, Number 62)]
[Proposed Rules]
[Page 16463-16475]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31mr06-32]
[[Page 16463]]
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Part III
Department of Veterans Affairs
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38 CFR Part 5
General Provisions; Proposed Rule
[[Page 16464]]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 5
RIN 2900-AL87
General Provisions
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Veterans Affairs (VA) proposes to reorganize
and rewrite in plain language general provisions applicable to its
compensation and pension regulations, including definitions. These
revisions are proposed as part of VA's rewrite and reorganization of
all of its compensation and pension rules in a logical, claimant-
focused, and user-friendly format. The intended effect of the proposed
revisions is to assist claimants, beneficiaries and VA personnel in
locating and understanding these general provisions.
DATES: Comments must be received by VA on or before May 30, 2006.
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; or e-mail through http://www.Regulations.gov. Comments
should indicate that they are submitted in response to ``RIN 2900-
AL87.'' 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: Bob White, Acting Chief, Regulations
Rewrite Project (00REG2), Department of Veterans Affairs, 810 Vermont
Avenue, NW., Washington, DC 20420, (202) 273-9515.
SUPPLEMENTARY INFORMATION: The Secretary of Veterans Affairs has
established an Office of Regulation Policy and Management to provide
centralized management and coordination of VA's rulemaking process. One
of the major functions of this office is to oversee a Regulation
Rewrite Project (the Project) to improve the clarity and consistency of
existing VA regulations. The Project responds to a recommendation made
in the October 2001 ``VA Claims Processing Task Force: Report to the
Secretary of Veterans Affairs.'' The Task Force recommended that the
compensation and pension regulations be rewritten and reorganized in
order to improve VA's claims adjudication process. Therefore, the
Project began its efforts by reviewing, reorganizing and redrafting the
content of the regulations in 38 CFR part 3 governing the compensation
and pension program of the Veterans Benefits Administration. These
regulations are among the most difficult VA regulations for readers to
understand and apply.
Once rewritten, the proposed regulations will be published in
several portions for public review and comment. This is one such
portion. It includes proposed rules regarding the scope of the
regulations in new part 5, general definitions, and general policy
provisions.
Outline
Overview of New Part 5 Organization
Overview of Proposed Subpart A Organization
Table Comparing Current Part 3 Rules with Proposed Part 5 Rules
Content of Proposed Regulations
5.0 Scope of applicability.
5.1 General definitions.
5.2 [Reserved]
5.3 Standards of proof.
5.4 Claims adjudication policies.
Endnote Regarding Amendatory Language
Paperwork Reduction Act
Regulatory Flexibility Act
Executive Order 12866
Unfunded Mandates
Catalog of Federal Domestic Assistance Numbers
List of Subjects in 38 CFR Part 5
Overview of New Part 5 Organization
We plan to organize the new part 5 regulations so that most
provisions governing a specific benefit are located in the same
subpart, with general provisions pertaining to all compensation and
pension benefits also grouped together. This organization will allow
claimants, beneficiaries, and their representatives, as well as VA
adjudicators, to find information relating to a specific benefit more
quickly than the organization provided in current part 3.
The first major subdivision would be ``Subpart A--General
Provisions.'' It would include information regarding the scope of the
regulations in new part 5, general definitions and general policy
provisions for this part. This subpart is the subject of this document.
``Subpart B--Service Requirements for Veterans'' would include
information regarding a veteran's military service, including the
minimum service requirement, types of service, periods of war, and
service evidence requirements. This subpart was published as proposed
on January 30, 2004. See 69 FR 4820.
``Subpart C--Adjudicative Process, General'' would inform readers
about claims and benefit application filing procedures, VA's duties,
rights and responsibilities of claimants and beneficiaries, general
evidence requirements, and general effective dates for new awards, as
well as revision of decisions and protection of VA ratings. This
subpart will be published as three separate Notices of Proposed
Rulemaking (NPRM)s due to its size. The first, concerning the duties of
VA and the rights and responsibilities of claimants and beneficiaries,
was published on May 10, 2005. See 70 FR 24680.
``Subpart D--Dependents and Survivors'' would inform readers how VA
determines whether an individual is a dependent or a survivor for
purposes of determining eligibility for VA benefits. It would also
provide the evidence requirements for these determinations.
``Subpart E--Claims for Service Connection and Disability
Compensation'' would define service-connected disability compensation
and service connection, including direct and secondary service
connection. This subpart would inform readers how VA determines service
connection and entitlement to disability compensation. The subpart
would also contain those provisions governing presumptions related to
service connection, rating principles, and effective dates, as well as
several special ratings. This subpart will be published as three
separate NPRMs due to its size. The first, concerning presumptions
related to service connection, was published on July 27, 2004. See 69
FR 44614.
``Subpart F--Nonservice-Connected Disability Pensions and Death
Pensions'' would include information regarding the three types of
nonservice-connected pension: Improved Pension, Old-Law Pension, and
Section 306 Pension. This subpart would also include those provisions
that state how to establish entitlement to Improved Pension and the
effective dates governing each pension. This subpart will be published
as two separate NPRMs due to its size. The portion concerning Old-Law
Pension, Section 306 Pension, and elections of Improved Pension was
published as proposed on December 27, 2004. See 69 FR 77578.
``Subpart G--Dependency and Indemnity Compensation, Death
Compensation, Accrued Benefits, and Special Rules Applicable Upon Death
of a Beneficiary'' would contain regulations governing claims for
dependency and indemnity compensation (DIC); death
[[Page 16465]]
compensation; accrued benefits; benefits awarded, but unpaid at death;
and various special rules that apply to the disposition of VA benefits,
or proceeds of VA benefits, when a beneficiary dies. This subpart would
also include related definitions, effective-date rules, and rate-of-
payment rules. This subpart will be published as two separate NPRMs due
to its size. The portion concerning accrued benefits, death
compensation, special rules applicable upon the death of a beneficiary,
and several effective-date rules, was published as proposed on October
1, 2004. See 69 FR 59072. The portion concerning DIC benefits and
general provisions relating to proof of death and service-connected
cause of death was published on October 21, 2005. See 70 FR 61326.
``Subpart H--Special and Ancillary Benefits for Veterans,
Dependents, and Survivors'' would pertain to special and ancillary
benefits available, including benefits for children with various birth
defects.
``Subpart I--Benefits for Certain Filipino Veterans and Survivors''
would pertain to the various benefits available to Filipino veterans
and their survivors.
``Subpart J--Burial Benefits'' would pertain to burial allowances.
``Subpart K--Matters Affecting Receipt of Benefits'' would contain
provisions regarding bars to benefits, forfeiture of benefits, and
renouncement of benefits.
``Subpart L--Payments and Adjustments to Payments'' would include
general rate-setting rules, several adjustment and resumption
regulations, and election-of-benefit rules. Because of its size,
proposed regulations in subpart L will be published in two separate
NPRMs.
The final subpart, ``Subpart M--Apportionments and Payments to
Fiduciaries or Incarcerated Beneficiaries,'' would include regulations
governing apportionments, benefits for incarcerated beneficiaries, and
guardianship.
Some of the regulations in this NPRM cross-reference other
compensation and pension regulations. If those regulations have been
published in this or earlier NPRMs for the Project, we cite the
proposed part 5 section. We also include, in the relevant portion of
the Supplementary Information, the Federal Register page where a
proposed part 5 section published in an earlier NPRM may be found.
However, where a regulation proposed in this NPRM would cross-reference
a proposed part 5 regulation that has not yet been published, we cite
to the current part 3 regulation that deals with the same subject
matter. The current part 3 section we cite may differ from its eventual
part 5 counterpart in some respects, but this method will assist
readers in understanding these proposed regulations where no part 5
counterpart has yet been published. If there is no part 3 counterpart
to a proposed part 5 regulation that has not yet been published, we
have inserted ``[regulation that will be published in a future Notice
of Proposed Rulemaking]'' where the part 5 regulation citation would be
placed.
Because of its large size, proposed part 5 will be published in a
number of NPRMs, such as this one. VA will not adopt any portion of
part 5 as final until all of the NPRMs have been published for public
comment.
In connection with this rulemaking, VA will accept comments
relating to a prior rulemaking issued as a part of the Project, if the
matter being commented on relates to both rulemakings.
Overview of Proposed Subpart A Organization
This NPRM pertains to general provisions applicable to compensation
and pension programs. These regulations would be contained in proposed
Subpart A of new 38 CFR part 5. Although these regulations have been
substantially restructured and rewritten for greater clarity and ease
of use, most of the basic concepts contained in these proposed
regulations are the same as their existing counterparts in 38 CFR part
3. However, a few substantive differences are proposed, as are some
regulations that do not have counterparts in 38 CFR part 3.
Table Comparing Current Part 3 Rules With Proposed Part 5 Rules
The following table shows the relationship between the current
regulations in part 3 and the proposed regulations contained in this
NPRM:
------------------------------------------------------------------------
Based in whole or in part on 38
Proposed or redesignated part 5 section CFR part 3 section or paragraph
or paragraph (or ``New'')
------------------------------------------------------------------------
5.0.................................... New.
5.1--Active military Service........... New.
5.1--Agency of original jurisdiction... New.
5.1--Alien............................. New.
5.1--Armed Forces...................... 3.1(a).
5.1--Beneficiary....................... New.
5.1--Benefit........................... New.
5.1--Certified statement............... New.
5.1--Child born of the marriage and 3.54(d).
child born before the marriage.
5.1--Claimant.......................... New.
5.1--Competent evidence................ New.
5.1--Direct service connection......... New.
5.1-- Discharged or released from 3.1(h).
active military service (1).
5.1-- Discharged or released from New.
active military service (2).
5.1--Final decision.................... New.
5.1--Former prisoner of war (or former Introduction to 3.1(y)(1),
POW). 3.1(y)(2)(i), and 3.1(y)(5).
5.1--Fraud (1)......................... 3.901(a).
5.1--Fraud (2)......................... 3.1(aa)(1).
5.1--Fraud (3)......................... 3.1(aa)(2).
5.1--In the waters adjacent to Mexico.. 3.1(t).
5.1--Insanity.......................... New.
5.1--Notice............................ 3.1(q).
5.1--Nursing home...................... 3.1(z).
5.1--On the borders of Mexico.......... 3.1(s).
5.1--Political subdivision of the 3.1(o).
United States.
5.1--Reserve component................. 3.1(b).
5.1--Reserve, or reservist............. 3.1©.
5.1--Secretary concerned............... 3.1(g).
[[Page 16466]]
5.1--Service medical records........... New.
5.1--State............................. 3.1(i).
5.1--Uniformed services................ New.
5.1--Veteran........................... 3.1(d).
5.2.................................... [Reserved].
5.3(a)................................. New.
5.3(b)(1).............................. Second and third sentences of
3.102.
5.3(b)(2).............................. Fourth and sixth sentences of
3.102.
5.3(b)(3).............................. Seventh sentence of 3.102.
5.3© and (d)......................... New.
5.4(a)................................. 3.103(a), second sentence.
5.4(b)................................. First sentence of 3.102;
3.103(a), second sentence.
------------------------------------------------------------------------
Readers who use this table to compare existing regulatory
provisions with the proposed provisions, and who observe a substantive
difference between them, should consult the text that appears later in
this document for an explanation of significant changes in each
regulation. Not every paragraph of every current part 3 section
regarding the subject matter of this rulemaking is accounted for in the
table. In some instances, other portions of the part 3 sections that
are addressed in these proposed regulations will appear in subparts of
part 5 that are being published separately for public comment. For
example, a reader might find a reference to paragraph (a) of a part 3
section in the table, but no reference to paragraph (b) of that section
because paragraph (b) will be addressed in a separate NPRM. The table
also does not include provisions from part 3 regulations that will not
be repeated in part 5. Such provisions are discussed specifically under
the appropriate part 5 heading in this preamble. Readers are invited to
comment on the proposed part 5 provisions and also on our proposals to
omit those part 3 provisions from part 5.
Content of Proposed Regulations
5.0 Scope of Applicability
The first proposed regulation in this NPRM is a new general scope
provision. The regulation informs readers that, except as otherwise
provided, the provisions of the regulations in proposed part 5 apply
only to benefits governed by part 5.
We are aware that some parts of 38 CFR that do not relate to
benefits governed by part 5 may rely expressly or implicitly on certain
part 3 regulations and that part 3 will eventually be superceded by
part 5. As part of the Project, VA will determine whether adjustments
in other parts are necessary to specifically adopt part 5 regulations
by reference, or whether to add equivalent regulations to other parts
to ensure continued coverage after part 3 is removed from title 38,
CFR. We anticipate that we will make the determination regarding other
parts of title 38, CFR, on or about the time that the final version of
part 5 is adopted.
We propose not to carry forward the scope provision in current
Sec. 3.2100, which applies only to the provisions in subpart D of part
3, because the content of that provision would be subsumed by proposed
Sec. 5.0.
5.1 General Definitions
The next proposed regulation in this NPRM is based primarily on
current Sec. 3.1 and includes definitions of words and phrases
commonly used in proposed part 5. Some of the definitions in current
Sec. 3.1 would simply be rewritten in proposed Sec. 5.1 to provide
the same information in a more logically organized form. Some proposed
definitions are new. Some current Sec. 3.1 definitions are not
addressed in proposed Sec. 5.1 because we propose to incorporate them
into new part 5 subparts dealing with specific types of benefits.
(Those definitions will be, or have already been, addressed in other
NPRMs.) All terms defined in proposed Sec. 5.1 would be arranged in
alphabetical order.
Proposed Sec. 5.1 provides a general definition for ``active
military service.'' We propose to use this term in lieu of the longer
term ``active military, naval, and air service'' used in 38 U.S.C.
101(24) and current part 3 for simplicity with no change in meaning. We
have also included a cross-reference to proposed Sec. 5.21, the
section that describes service VA recognizes as active military
service. See 69 FR 4820, 4833 (Jan. 30, 2004).
Proposed Sec. 5.1 includes the following definition of the term
``agency of original jurisdiction'': ``Agency of original jurisdiction
means the VA activity that is responsible for making the initial
determination on an issue affecting a claimant's or beneficiary's right
to benefits.'' We note that this definition differs somewhat from a
definition of the same term in 38 CFR 20.3(a) which reads as
follows:``Agency of original jurisdiction means the Department of
Veterans Affairs activity or administration, that is, the Veterans
Benefits Administration, Veterans Health Administration, or National
Cemetery Administration, that made the initial determination on a
claim.'' The difference is because of the narrower scope of part 5 and
because the definitions in Sec. 20.3 are geared to an appellate
context while the definitions in proposed Sec. 5.1 are not.
Proposed Sec. 5.1 provides the definition of the term ``alien,''
which appears several times throughout current part 3, but it is not
defined in current part 3 or in title 38, United States Code. Such a
definition is contained in chapter 12, ``Immigration And Nationality,
General Provisions,'' of title 8, ``Aliens And Nationality,'' of the
United States Code. ``Alien'' is defined in 8 U.S.C. 1101(a)(3) as
``any person not a citizen or national of the United States.'' We
propose to adopt this definition for part 5. It is simple and clear and
is the definition used in the U.S.C. title primarily applicable to
determinations of immigration and nationality matters by the United
States.
Proposed Sec. 5.1 defines ``beneficiary'' as ``an individual in
receipt of benefits under any of the laws administered by VA.''
We propose to define ``benefit'' as ``any payment, service,
commodity, function, or status, entitlement to which is determined
under laws administered by VA pertaining to veterans and their
dependents and survivors.'' The definition of ``benefit'' parallels the
definition of that term at 38 CFR 20.3(e).
Proposed Sec. 5.1 defines a ``certified statement,'' another
undefined term used in current part 3, as a ``statement made and signed
by an individual who affirms that the statement's content is true and
accurate to the best of that individual's knowledge and belief.'' This
is consistent with VA usage and
[[Page 16467]]
consistent with the common understanding of that term. For example, see
the definition of ``certify'', Black's Law Dictionary 220 (7th ed.
1999), ``1. To authenticate or verify in writing. 2. To attest as being
true or as meeting certain criteria.''
Proposed Sec. 5.1 next addresses the concepts of ``child born of
the marriage'' and ``child born before the marriage.'' The recognition
of an individual as the veteran's surviving spouse can turn on whether
a child was born of his or her marriage to the veteran, or was born to
the veteran and the surviving spouse before their marriage. See 38
U.S.C. 103(a) (concerning claims from spouses who entered into a
marriage with a veteran without knowledge of a legal impediment to the
marriage); 1102(a) (concerning marriage requirements for death
compensation); 1304 and 1318© (concerning marriage requirements for
dependency and indemnity compensation); 1532(d), 1534©, 1536©, and
1541(f) (concerning marriage requirements for various pension
benefits). The proposed definition is based on current Sec. 3.54(d)
with the clarification that adopted children and stepchildren are not
included in these terms, for the following reasons.
The United States Court of Appeals for Veterans Claims (CAVC)
interpreted the language ``child born of the marriage'' and ``child
born before the marriage'' in the context of a claim for pension under
chapter 15, title 38, United States Code, as follows:
Applying the ``fundamental canon of statutory construction''
that ``unless otherwise defined, words will be interpreted as taking
their ordinary, contemporary, common meaning'' * * * , the statutory
phrase ``child * * * born of the marriage'' of Sec. 1541(f)(3)
cannot be expanded by the B[oard of Veterans Appeals] or this Court
to read ``child * * * born of or adopted during the marriage''. When
a statute is clear and unambiguous, and a term of that statute is
``plain on the face of the statute, our statutory inquiry is at an
end.'' * * * An adopted child is not a ``child * * * born of the
marriage'' for the purpose of determining whether a surviving spouse
is qualified for a pension under 38 U.S.C. 1541 and 38 CFR 3.54.
Tapuro v. Derwinski, 2 Vet. App. 154, 155 (1992) (citations omitted).
The Court has clearly construed the relevant statutory language to
exclude adopted children in the context of 38 U.S.C. 1541, and
identical language appears in the other statutes governing the benefits
to which the proposed regulation applies, i.e., to 38 U.S.C. 103(a),
1102(a), 1304, 1318©, 1532(d), 1534©, 1536© and 1541(f).
Therefore, we propose to adopt the CAVC's interpretation in proposed
Sec. 5.1. Following the Court's logic, which is sound, we also propose
to clarify that stepchildren are not included. Clearly, a stepchild
cannot be a ``child * * * born of the marriage'' between a veteran and
his or her spouse.
The definition of ``claimant'' in proposed Sec. 5.1, ``any
individual applying for, or submitting a claim for, any benefit under
the laws administered by VA,'' is based on the statutory definition of
that term found at 38 U.S.C. 5100, ``Definition of `claimant'.''
Proposed Sec. 5.1 provides a definition of the term ``competent
evidence.'' Since the process of adjudicating claims is not
adversarial, VA is not concerned with the technical ``admissibility''
of evidence and does not exclude any evidence from the record (as we
propose to remind readers in a note associated with the proposed
definition). However, VA must evaluate the probative value of evidence.
One of the qualities upon which VA evaluates whether evidence is
probative is whether or not it is ``competent.'' Basically, this means
that VA evaluates evidence on whether its source was someone who had a
sound basis for stating the opinion or reporting the facts contained in
the evidence.
The new proposed definition would specify that competent evidence
is evidence of one of two types, ``competent expert evidence'' or
``competent lay evidence.'' In that respect, this new definition is
similar to Sec. 3.159(a)(1) and (2), which distinguishes between
``competent medical evidence'' and ``competent lay evidence.'' However,
instead of defining ``competent medical evidence,'' paragraph (1) of
the proposed definition defines ``competent expert evidence,'' which
would be evidence that must be provided by someone with specialized
education, training, or experience. ``Expert evidence'' is sufficiently
broad to encompass requiring a valid foundation for any evidence, not
just medical evidence, which is based on special technical expertise.
Examples might include such things as opinions from a handwriting
analysis expert or an accident reconstruction expert.
Paragraph (2) of the proposed definition defines ``competent lay
evidence.'' It is substantively similar to the definition of the same
term in current Sec. 3.159(a)(2) in most respects. However, we propose
to add that to be competent the lay evidence must be provided by a
person who has personal knowledge of the facts or circumstances
addressed by the evidence. Mere hearsay would not be competent
evidence. ``It bears repeating that [lay] testimony is competent only
so long as it remains centered upon matters within the knowledge and
personal observations of the witness. Should the testimony stray from
this basic principle and begin to address, for example, medical
causation, that portion of the testimony addressing the issue of
medical causation is not competent.'' Layno v. Brown, 6 Vet.App. 465,
470 (1994). We also propose to state that a lay person is a person
without relevant specialized education, training, or experience. A
person could be an expert in a field unrelated to the subject matter of
the evidence at hand and still be considered to be a ``lay person'' in
the context of evaluating the competency of that evidence. For example,
with respect to evaluating a medical opinion provided by a witness
without medical training, that person would be considered to be a lay
person even though he or she might have the credentials to provide
expert evidence concerning structural engineering.
Proposed Sec. 5.1 defines direct service connection in language
consistent with VA's traditional usage. ``Direct service connection''
is a term commonly used in veterans law. For example, the term is used
in the titles of current Sec. Sec. 3.304 and 3.305. However, it is not
specifically defined anywhere in current part 3. The term ``direct
service connection'' is commonly used within VA to distinguish service
connection granted on the basis of evidence showing that a disease or
injury was incurred in or aggravated in line of duty during active
military service from service connection granted on the basis of a
presumption; service connection for a disease or injury that is
secondary to another service-connected disease or injury; or service
connection based on aggravation of a nonservice-connected disability by
a service-connected disability. For that reason, the proposed
definition clarifies that direct service connection is ``established
without consideration of presumptions of service connection in subpart
E of this part or secondary service connection under Sec. 3.310 of
this chapter.''
Currently, Sec. 3.310(a) provides that except as provided in Sec.
3.300©, disability which is proximately due to or the result of a
service-connected disease or injury shall be service connected. When
service connection is thus established for a secondary condition, the
secondary condition shall be considered a part of the original
condition.
The holding of Allen v. Brown, 7 Vet.App. 439, 448 (1995), states
that when aggravation of a nonservice-connected disability is
proximately due to or the result of a service-connected disability, the
veteran is entitled to
[[Page 16468]]
compensation for the degree of disability over and above the disability
in existence prior to the aggravation.
In order to conform Sec. 3.310 to this judicial precedent, VA
drafted a proposed regulation entitled ``Claims Based on Aggravation of
a Nonservice-Connected Disability,'' an amendment that reflects the
principles stated in Allen, supra. 62 FR 30547 (1997). In referencing
Sec. 3.310 in our definition for direct service connection we intend
to include the principles stated in that proposed amendment, which we
anticipate will be issued as a final rule in the near future.
Proposed Sec. 5.1 includes an expanded definition of ``discharged
or released from active military service.'' The current definition of
that term in Sec. 3.1(h) simply notes that discharge or release
includes retirement from the active military, naval, or air service.
This concept, which is based on 38 U.S.C. 101(18)(A), would be retained
in paragraph (1) of the proposed definition.
However, under 38 U.S.C. 101(18)(B), ``discharge or release'' also
includes the following:
[T]he satisfactory completion of the period of active military,
naval, or air service for which a person was obligated at the time
of entry into such service in the case of a person who, due to
enlistment or reenlistment, was not awarded a discharge or release
from such period of service at the time of such completion thereof
and who, at such time, would otherwise have been eligible for the
award of a discharge or release under conditions other than
dishonorable.
Paragraph (2) of the proposed definition of ``discharge or
release'' restates this aspect of the definition in somewhat simpler
language. It also substitutes the phrase ``intervening change in
military status'' for the statutory phrase ``enlistment or
reenlistment.'' ``Change in military status'' is defined in Sec. 5.37,
``Effect of extension of service obligation due to change in military
status on eligibility for VA benefits.'' See 69 FR 4820 (Jan. 30, 2004)
for a full explanation of the meaning of the term, its relationship to
38 U.S.C. 101(18)(B) as interpreted by VA, and the text of proposed
Sec. 5.37.
Proposed Sec. 5.1 includes a definition of the term ``final
decision.'' The proposed definition, which is similar to the definition
of ``finally adjudicated claim'' in current Sec. 3.160(d), provides
that a decision on a claim for VA benefits is final if VA provides
notice of that decision and the claimant either does not initiate and
complete a timely appeal or the Board of Veterans' Appeals issues a
final decision on the claim. The definition includes references to the
relevant regulations outlining the notice requirement and the
applicable steps in the administrative appellate process.
Proposed Sec. 5.1 defines the term ``former prisoner of war
(former POW)'' and is based on portions of current Sec. 3.1(y).
Portions of Sec. 3.1(y) that contain substantive rules concerning
proof of POW status will be addressed in another regulation in a
separate NPRM.
Proposed Sec. 5.1 provides definitions for the term ``fraud,''
which vary depending upon context. It is derived from current
Sec. Sec. 3.1(aa) and 3.901(a).
Although the definition of ``fraud'' in current Sec. 3.901(a)
appears in a regulation dealing with forfeiture for fraud, it is an
accurate general definition that need not be confined to the forfeiture
context. Therefore, we propose it as a general definition of fraud in
paragraph (1) of the Sec. 5.1 definition of fraud.
Current Sec. 3.1(aa)(1) references fraud ``[a]s used in 38 U.S.C.
103 and implementing regulations.'' Current Sec. 3.1(aa)(2) references
fraud ``[a]s used in 38 U.S.C. 110 and 1159 and implementing
regulations.'' We believe it would be much more useful to regulation
users to directly reference the regulations that implement the cited
statutes, rather than to reference the statutes and their unidentified
``implementing regulations.'' Therefore we have made this change in
paragraphs (2) and (3) of the proposed definition of fraud.
Current Sec. 3.1(t) defines ``in the waters adjacent thereto.''
This definition applies only to the definition of a period of war known
as the ``Mexican Border Period'' defined in current Sec. 3.2(h) and in
proposed Sec. 5.20(a). (For the text of the latter, see 69 FR 4820,
4832 (Jan. 30, 2004).) We propose no substantive change to the
definition, but the definition in Sec. 5.1 is of ``in the waters
adjacent to Mexico,'' rather than of ``in the waters adjacent
thereto,'' to conform to revisions to Sec. 5.20(a). We intend no
substantive change.
In Sec. 5.1 we propose to define insanity in the context of
insanity as a defense to commission of an act. The standard for
determining insanity for purposes of administering VA benefits is
contained in current 38 CFR 3.354(a), which states ``An insane person
is one who, while not mentally defective or constitutionally
psychopathic, except when a psychosis has been engrafted upon such
basic condition, exhibits, due to disease, a more or less prolonged
deviation from his normal method of behavior; or who interferes with
the peace of society; or who has so departed (become antisocial) from
the accepted standards of the community to which by birth and education
he belongs as to lack the adaptability to make further adjustment to
the social customs of the community in which he resides.''
This standard is difficult to apply and has not met with judicial
favor. For example, in Zang v. Brown, 8 Vet. App. 246 (1995), the CAVC
stated that the regulation is ``less than clear given its obvious
drafting defects,'' id. at 252; that ``a literal interpretation of the
regulation would produce an illogical and absurd result that could not
have been intended by the Secretary,'' id. at 253; and that the
regulation ``illustrates still another `confusing tapestry''' of VA
regulations. Id. at 256 (Steinberg, J., separate views).
However, the CAVC commented favorably in Cropper v. Brown, 6 Vet.
App. 450 (1994), on VA's application of the insanity defense
articulated in a now-superseded section of VA Adjudication Procedure
Manual M21-1. In Cropper, the Court stated:
Thus, [38 U.S.C. 5303(b)] sets out the authority for allowing
veterans benefits where a party has received an [other than
honorable (OTH)] discharge but has been adjudged insane, and [38 CFR
3.354] simply define the term ``insanity.'' It is the VA
ADJUDICATION PROCEDURE MANUAL, Part IV, Sec. Sec. 11.01, 11.04,
11.05 (Apr. 3, 1992) and Part VI, Sec. 4.10 (Sept. 21, 1992), which
sets out the application of the insanity defense and the application
of the definition of insanity. The M21-1 Manual defines insanity as
``whether, at the time of commission of the act(s), the veteran was
laboring under such a defect of reason, from disease or mental
deficiency, as not to know or understand the nature or consequence
of the act(s) or that what he or she was doing was wrong.'' M21-1
Part VI, Sec. 4.10©; see also M21-1 Part IV, Sec.
11.10(d)(2)(a)-(b) (Apr. 3, 1992) (for purposes of considering
factors in wrongful and intentional killing cases, it defines
insanity as a condition when, ``at the time of commission of the
act, the party accused was laboring under such a defect of reason,
from disease of mind or mental deficiency, that he or she did not
know the nature and consequence of the act or * * * f known, that
the claimant did not perceive the act as wrong''). We find this
provision to be consistent with both the statute and the regulation
because it serves to limit the use of the insanity defense to those
situations where the acts leading to the discharge were the result
of insanity. Thus, the M21-1 Manual provision allows the insanity
defense only where it should be most properly applied. That is, the
defense may not be used where a claimant has received an OTH
discharge due to acts of misconduct over which he ultimately had
control but failed, in fact, to control. Conversely, the defense may
be used properly where the claimant has received a dishonorable
discharge due to some ``defect of reason, from disease or mental
deficiency,'' which is beyond his control.
Cropper, 6 Vet. App. at 453.
[[Page 16469]]
We propose to adopt a definition of insanity based on the
definition approved by the CAVC in Cropper, and to make that definition
applicable to all cases where an insanity determination may provide ``a
defense to a commission of an act'' (as opposed to limiting the
definition to the issue in Cropper, i.e., cases where insanity led to
an act causing an OTH discharge). This definition has the advantage of
incorporating a concept long familiar to the law. The law has
recognized since at least the mid-19th century that a person should not
be held criminally responsible for his or her behavior if that person
was ``insane'' at the time of committing a crime. M'Naghten's Case, 8
Eng.Rep. 718 (1843). In addition, the definition we propose is similar
to the following insanity-defense test endorsed by the American
Psychiatric Association: ``A person charged with a criminal offense
should be found not guilty by reason of insanity if it is shown that as
a result of mental disease or mental retardation he was unable to
appreciate the wrongfulness of his conduct at the time of the
offense.'' The Insanity Defense, American Psychiatric Association, at
http://www.psych.org/edu/other_res/lib_arc...ives/198202.pdf.
We propose to supplement the definition of ``insanity'' discussed
by the CAVC in Cropper by adding injury to the list of potential
sources of impairment of the ability to reason responsibly. For
example, brain trauma can produce severe mental impairment.
Current Sec. 3.303© states that a personality disorder is not a
disease or injury for VA disability purposes. We anticipate that part 5
will have a counterpart to Sec. 3.303©.) In addition, a personality
disorder is not mental deficiency. Our proposed definition of insanity
requires that a person be laboring under a defect of reason resulting
from injury, disease, or mental deficiency. Therefore, we propose to
add in proposed Sec. 5.1, an additional sentence explicitly stating
that behavior attributable to a personality disorder does not satisfy
the definition of insanity.
Accordingly, we propose to provide in Sec. 5.1 that insanity, as a
defense to commission of an act, means a person was laboring under such
a defect of reason resulting from injury, disease, or mental deficiency
as not to know or understand the nature or consequence of the act, or
that what he or she was doing was wrong. Behavior that is attributable
to a personality disorder does not satisfy the definition of insanity.
The definition of ``insanity'' in proposed Sec. 5.1 is quite
different from the definition in Sec. 3.354. We have previously
referenced the Sec. 3.354 regulatory definition of insanity in Sec.
5.33, ``Insanity as a defense to acts leading to a discharge or
dismissal from the service that might be disqualifying for VA
benefits.'' 69 FR 4820, 4839 (Jan. 30, 2004). We explained, however,
that the definition of ``insanity'' would be revised and published for
comment as a proposed part 5 regulation. Accordingly, we intend that
when proposed Sec. 5.33 is issued as a final rule, it will cross
reference Sec. 5.1 rather than Sec. 3.354. Readers are invited to
comment at this time on the effect of Sec. 5.1 on Sec. 5.33. We do
not anticipate or intend any effect on insanity determinations by VA.
The proposed definition of ``notice'' in Sec. 5.1 is based on
current Sec. 3.1(q). We propose to add that, if a claimant or
beneficiary is represented, the notice must also be sent to the
representative. See 38 U.S.C. 5104(a) (requiring that notice of a
decision affecting the provision of benefits to a claimant be provided
to the claimant's representative). We also propose to require that if a
claimant or beneficiary has a fiduciary, notice must also be sent to
the fiduciary.
Proposed Sec. 5.1 defines ``on the borders of Mexico,'' with
regard to service during the Mexican border period, by listing
applicable border States and countries. The definition is based on the
definition of ``on the borders thereof'' in current Sec. 3.1(s), which
includes British Honduras. British Honduras is now Belize. The proposed
definition includes the current name of that nation. We have defined
``on the borders of Mexico,'' rather than ``on the borders thereof,''
to conform to revisions to proposed Sec. 5.20(a).
Proposed Sec. 5.1 includes a definition of a ``political
subdivision of the United States'' that is based on the definition in
current Sec. 3.1(o). The definition in current Sec. 3.1(o) states
that a ``[p]olitical subdivision of the United States includes the
jurisdiction defined as a State in paragraph (i) of this section, and
the counties, cities or municipalities of each.'' The word ``includes''
suggests that this is a partial list. We propose to omit it in the new
definition, because, with one possible exception, that is not the case.
(Note that the definition includes ``a State'' and that the definition
of ``State'' brings in ``the several States, Territories, and
possessions of the United States; the District of Columbia; and the
Commonwealth of Puerto Rico.'') The possible exception is that the
current definition includes counties, but not parishes. Parishes in
Louisiana are the equivalent of counties in other states. Therefore, we
propose to define a political subdivision of the United States as ``the
jurisdictions defined as a State and the counties (or parishes), cities
or municipalities of each.''
Proposed Sec. 5.1 departs from the definition of ``reserve'' in
current Sec. 3.1© in three respects. First, it would change
``reserves'' to ``reserve,'' as is the case in 38 U.S.C. 101(26). This
is not a substantive change. Second, it would define ``reserve or
reservist.'' ``Reservist'' is a more commonly used word with the same
meaning. Finally, we propose to shorten the current ``Reserve component
of one of the Armed Forces'' to just ``reserve component.'' ``[O]f one
of the Armed Forces'' is redundant because of the way that reserve
component is defined in Sec. 5.1.
Proposed Sec. 5.1 carries forward the current definition of
``Secretary concerned'' in Sec. 3.1(g) with one revision. The Coast
Guard is now under the jurisdiction of the Secretary of Homeland
Security, not the Secretary of Transportation. See Public Law 107-296,
Sec. 888(b), 116 Stat. 2135.
Proposed Sec. 5.1 defines ``service medical records'' as ``records
of medical treatment or medical examination provided by the Armed
Forces to either an applicant for membership into, or a member of, the
Armed Forces.'' We are aware that, for a variety of reasons, the Armed
Forces may provide a service member with medical care through civilian
resources. Therefore, the proposed definition also provides that
service medical records ``include records of medical examination and
treatment by a civilian health care provider at Armed Forces'
expense.''
Proposed Sec. 5.1 defines ``uniformed services.'' As with the
several other new terms we have defined, the term ``uniformed
services'' (or ``uniformed service'') is used in current part 3, but is
not defined. See 38 CFR 3.157, 3.211, and 3.804 (all using the term
``uniformed service'' or ``uniformed services''). The statute that
contains the definitions generally applicable to title 38 United States
Code (38 U.S.C. 101), does not include a definition of ``uniformed
services.'' However, there is a definition in 38 U.S.C. chapter 43,
``Employment and Reemployment Rights of Members of the Uniformed
Services.'' See 38 U.S.C. 4303(16). We propose to adopt this definition
for part 5.
Proposed Sec. 5.1 defines ``veteran.'' This definition is based on
the definition in current Sec. 3.1(d) and largely mirrors that
provision except that we propose to
[[Page 16470]]
slightly modify the language of current Sec. 3.1(d)(1) (pertaining to
the definition of a veteran for purposes of DIC or death compensation).
The current provision, Sec. 3.1(d)(1), reads: ``For compensation
and dependency and indemnity compensation the term veteran includes a
person who died in active service and whose death was not due to
willful misconduct.'' The language specifying that this alternative
definition of veteran applies to cases of death compensation and DIC is
unnecessary. Eligibility criteria for various benefits are contained in
separate provisions. The key issue is whether a veteran by definition
may only be a person who was alive when he or she was discharged from
active military service, or whether a veteran can also be a person who
died in active military service. Therefore proposed Sec. 5.1 will
simply provide ``The term veteran also includes a person who died in
active service and whose death was not due to willful misconduct.''
We also propose to add a cross-reference to the regulation that
defines ``willful misconduct,'' and to add a cross-reference (which
concerns the meaning of ``veteran'' in the context of death pension
claims) to the subpart of proposed part 5 that deals with pension
eligibility.
Current Sec. 3.1(e) defines ``veteran of any war.'' We have not
included a similar definition in Sec. 5.1 because we anticipate that
the term would be used, at most, in one part 5 regulation. If that
should be the case, the definition could be included in that
regulation.
5.2 [Reserved]
Proposed Sec. 5.1 contains definitions applicable throughout part
5, but proposed part 5 will also contain a number of definitions that
are more limited in scope. In keeping with our goal of locating
information applicable to specific programs together in one subpart of
proposed part 5 to the extent possible, definitions that apply to
specific VA programs and procedures would be located in subparts of
proposed part 5 that deal with those programs and procedures. We do not
currently know with certainty what all of those definitions will be and
where they will be located because some proposed part 5 subparts are
still in development. We have reserved proposed Sec. 5.2 as the future
location for a convenient cross-reference table to assist claimants,
beneficiaries, and VA staff in locating these definitions in other
subparts of part 5. We plan to publish Sec. 5.2 for notice and comment
in a future NPRM issued for the Project.
5.3 Standards of proof.
The next regulation in this NPRM, proposed Sec. 5.3, addresses the
standards of proof used in the adjudication of claims for VA benefits.
New proposed Sec. 5.3(a), ``Applicability,'' explains that Sec. 5.3
states the general standards of proof for proving facts and rebutting
presumptions and that these standards apply unless a statute or another
regulation specifically provides otherwise. For example, 38 U.S.C. 1111
requires ``clear and unmistakable evidence'' that an injury or disease
existed before acceptance and enrollment for service and was not
aggravated by service to rebut the presumption that a veteran was in
sound condition when examined, accepted, and enrolled for service.
Accordingly the default standard in Sec. 5.3(b) for rebutting a
presumption would not apply because there is a statute that
specifically provides another standard.
Proposed Sec. 5.3(b) addresses the default standard for proving a
specific fact or facts material to the determination of a claim. The
relevant statute, 38 U.S.C. 5107(b), specifies that in cases where
``there is an approximate balance of positive and negative evidence
regarding any issue material to the determination of a matter, [VA]
shall give the benefit of the doubt to the claimant.'' This language
has been interpreted to mean, essentially, that when there is a balance
of evidence for and against the existence of a fact, and proof of that
fact would support a veteran's claim, VA must consider the fact proven.
An excellent illustration of this point may be found in Gilbert v.
Derwinski, 1 Vet. App. 49 (1991), an early opinion by the CAVC in which
it first considered the ``benefit of the doubt'' doctrine (then
contained in 38 U.S.C. 3007).
Perhaps the analogy most helpful to an understanding of the
application of the ``benefit of the doubt'' rule was provided by
Deputy Assistant General Counsel Mullen at oral argument when he
stated that the ``benefit of the doubt'' standard is similar to the
rule deeply embedded in sandlot baseball folklore that ``the tie
goes to the runner.'' If the ball clearly beats the runner, he is
out and the rule has no application; if the runner clearly beats the
ball, he is safe and, again, the rule has no application; if,
however, the play is close, then the runner is called safe by
operation of the rule that ``the tie goes to the runner.'' * * *
Similarly, if a fair preponderance of the evidence is against a
veteran's claim, it will be denied and the ``benefit of the doubt''
rule has no application; if the veteran establishes a claim by a
fair preponderance of the evidence, the claim will be granted and,
again, the rule has no application; if, however, the play is close,
i.e., ``there is an approximate balance of positive and negative
evidence,'' the veteran prevails by operation of 38 U.S.C. 3007(b).
Gilbert, 1 Vet. App. at 55-56.
Turning to the exact language of proposed Sec. 5.3(b), we propose
to define ``equipoise'' in paragraph (b)(1). Although the language is
considerably simpler than current Sec. 3.102, the definition of
``equipoise'' that we propose is consistent with the longstanding
explanation of the ``reasonable doubt'' doctrine in current Sec. 3.102
concerning ``an approximate balance of positive and negative evidence
which does not satisfactorily prove or disprove the claim.'' This
proposed definition is that equipoise means that there is ``an
approximate balance between the weight of the evidence for and the
weight of the evidence against the truth of the asserted fact, such
that it is as likely as not that the asserted fact is true.''
Paragraph (b)(2) would require VA to apply the benefit of the doubt
``[w]hen the evidence is in equipoise and the fact or issue to be
proven would support a claim.'' Paragraph (b)(2) would emphasize that
if the evidence is in equipoise and ``the fact or issue to be proven
would not support a claim, the matter will not be considered proven.''
Such facts or issues must be established by a preponderance of the
evidence. Finally, paragraph (b)(2) clarifies that the ``benefit of the
doubt applies even in the absence of official records,'' as described
in current Sec. 3.102. This rule is consistent with the statutory
statement of these same principles in 38 U.S.C. 5107(b): ``When there
is an approximate balance of positive and negative evidence regarding
any issue material to the determination of a matter, the Secretary
shall give the benefit of the doubt to the claimant.''
Proposed paragraph (b)(3) would define the ``preponderance of the
evidence'' by stating: ``A fact or issue is established by a
preponderance of evidence when the weight of the evidence in support of
that fact or issue is greater than the evidence in opposition to it.''
This definition accords with the generally accepted definition of the
term. See Black's Law Dictionary 1064 (5th Ed., 1981).
Proposed Sec. 5.3(b)(5) provides that the equipoise standard does
not govern determinations as to whether evidence is new and material
when offered to reopen a previously denied claim; instead ``VA will
reopen a claim when the new and material evidence merely raises a
reasonable possibility of substantiating the claim. While the explicit
statement of this exception is new, the law underlying it is not. This
[[Page 16471]]
rule is consistent with Annoni v. Brown, 5 Vet. App. 463 (1993). In
Annoni, the CAVC, citing Gilbert, noted that the benefit of the doubt
rule (the equipoise standard) does not apply during the process of
gathering evidence and that it does not shift the initial burden to
submit a valid claim from the claimant to VA. Annoni, 5 Vet. App. at
467. Additionally, new and material evidence determinations do not
involve the usual weighing of ``all information and lay and medical
evidence of record'' within the meaning of 38 U.S.C. 5107(b), but
instead require threshold determinations of the significance of
discrete items of evidence, which VA must presume credible and to which
VA must give full weight. See Justus v. Principi, 3 Vet. App. 510, 513
(1992). Such threshold determinations as to whether a claimant has
submitted new and material evidence are governed by the standards set
forth in 38 CFR 3.156(a).
The default standard of proof applicable to rebuttal of a
presumption is addressed in proposed Sec. 5.3©. In some cases,
Congress has specifically provided the standard of proof applicable to
rebutting a presumption. For example, Congress has imposed rather high
standards of proof in two circumstances. Section 1111 of title 38,
``Presumptions of sound condition,'' requires ``clear and unmistakable
evidence'' to rebut the presumption of sound condition upon entry into
military service. Section 1154(b) of title 38 requires ``clear and
convincing evidence'' to rebut a combat veteran's satisfactory evidence
of combat incurrence of a disease or injury. The question remains as to
what standard of proof applies to the rebuttal of a presumption where
Congress has not provided a specific standard.
The Court of Appeals for the Federal Circuit addressed this issue
recently in Thomas v. Nicholson, 423 F.3d 1279 (Fed. Cir. 2005). The
specific issue considered by the court was determining the correct
standard of proof for rebutting the presumption in 38 U.S.C. 105(a)
that an injury or disease incurred during service was incurred in line
of duty. Section 105(a) does not specify a standard. Because of the
significance of the court's opinion in this case, we quote from it at
length.
The government acknowledges that Sec. 105(a) does not specify
the evidentiary standard necessary to rebut the presumption that a
peacetime disability was incurred in line of duty, but argues that
Congress established the general evidentiary standard for factual
determinations of veterans' cases in 38 U.S.C. 5107(b). The
government urges this court to apply Sec. 5107, and the evidentiary
standard applicable to Sec. 5107, to Sec. 105(a) in this case.
In support, the government points out that this court in Forshey
examined 38 U.S.C. 5107 for the purpose of determining the proper
evidentiary standard under Sec. 105(a), although Forshey declined
to decide whether Sec. 5107 set out a ``preponderance of evidence''
or ``clear and convincing'' standard. Forshey, 284 F.3d at 1351-52.
The government therefore contends that 38 U.S.C. 5107 establishes a
general evidentiary standard governing determinations by the Board
on issues material to the resolution of claims which is applicable
to Sec. 105(a) and the determination of willful misconduct for
peacetime disabilities.
The government further relies on language in other opinions by
this court as support that Sec. 5107 sets out the ``preponderance
of evidence'' standard. Although acknowledging that Sec. 5107 does
not explicitly state an evidentiary standard, the government points
out that this court has found that Sec. 5107(b), ``the benefit of
the doubt rule,'' does not apply ``in cases in which the Board finds
that a preponderance of the evidence is against the veteran's claim
for benefits.'' Ortiz v. Principi, 2
USAF 1980-1986, 70% SC PTSD, 100% TDIU (P&T)
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