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Standards Of Proof
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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]]
Part III
Department of Veterans Affairs
38 CFR Part 5
General Provisions; Proposed Rule
[[Page 16464]]
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.
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
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 `"n cases in which the Board finds
that a preponderance of the evidence is against the veteran's claim
for benefits.'' Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir.
2001). Furthermore, the government points to language by this court
quoting similar language by the Veterans Court. Forshey, 284 F.3d at
1340-41 (relying upon Gilbert v. Derwinski, 1 Vet. App. 49 (1990)).
We need not rely on the applicability of Sec. 5107(b) alone,
however, to reject Thomas's argument that "clear and convincing''
rather than "preponderance of the evidence'' is the proper
evidentiary standard here. Indeed, we find as strong or stronger
argument to be that Congress did not specifically set out that a
heightened standard was necessary to rebut the presumption of
service connection in Sec. 105(a) where the veteran's own willful
misconduct or abuse of alcohol was involved.
"The `preponderance of the evidence' formulation is the general
burden assigned in civil cases for factual matters.'' St. Paul Fire
& Marine Ins. Co. v. United States, 6 F.3d 763, 769 (Fed. Cir.
1993). The Supreme Court has explained that suits over money
damages, as opposed to suits to deny liberty or life or individual
interests, appropriately fall under the less stringent "fair
preponderance of the evidence'' standard. Santosky v. Kramer, 455
U.S. 745, 755, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982); see also
Gilbert, 1 Vet. App. at 53. Indeed, the normal standard in civil
suits is the "preponderance'' standard. The "clear and
convincing'' standard is "reserved to protect particularly
important interests in a limited number of civil cases'' where there
is a clear liberty interest at stake, such as commitment for mental
illness, deportation, or denaturalization. California ex rel. Cooper
v. Mitchell 'Bros. Santa Ana Theater, 454 U.S. 90, 93, 70 L. Ed. 2d
262, 102 S. Ct. 172 (1981); Addington v. Texas, 441 U.S. 418, 424,
60 L. Ed. 2d 323, 99 S. Ct. 1804 (1979) (commitment for mental
illness); Woodby v. Immigration & Naturalization Serv., 385 U.S.
276, 285, 17 L. Ed. 2d 362, 87 S. Ct. 483 (1966) (deportation);
Chaunt v. United States, 364 U.S. 350, 353, 5 L. Ed. 2d 120, 81 S.
Ct. 147 (1960) (denaturalization). The liberties at stake in those
cases are easily and clearly distinguishable from this case, where
the issue is whether an injury was incurred by a veteran in the line
of duty.
It is true that Congress has established specific, heightened
evidentiary standards for other determinations in veterans cases in
38 U.S.C. 1111 and 1154(b). In those sections, Congress provided
that certain decisions adverse to claimants must meet the heightened
thresholds of either "clear and unmistakable evidence'' or "clear
and convincing evidence.'' Notably, however, Congress did not
similarly do so for determinations under Sec. 105(a), supporting
the assertion that Congress did not intend for a higher standard to
apply here. See Grogan v. Garner, 498 U.S. 279, 286, 112 L. Ed. 2d
755, 111 S. Ct. 654 (1991) (finding that "silence is inconsistent
with the view that Congress intended to require a special,
heightened standard of proof''); Russello v. United States, 464 U.S.
16, 23, 78 L. Ed. 2d 17, 104 S. Ct. 296 (1983) (finding that where
"Congress includes particular language in one section of a statute
but omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion'') (quoting United States v. Wong
Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972)); Cook v. Principi, 318
F.3d 1334, 1339 (Fed. Cir. 2002) ("Applying the familiar canon of
expressio unius est exclusio alterius, we conclude that Congress did
not intend to allow exceptions to the rule of finality in addition
to the two that it expressly created.''); St. Paul Fire & Marine
Ins. Co., 6 F.3d at 768-69 (Fed. Cir. 1993) ("Given that Congress
explicitly imposed a high burden of persuasion on the importer when
mounting a pre-importation challenge to a Customs ruling, and given
that subsection (b) which contains the "clear and convincing''
standard follows subsection (a) in the statute, we find no reason in
the statute or its legislative history to import the clear and
convincing standard from subsection 2639(b) to subsection
2639(a).'').
Accordingly, while Thomas argues that these other statutes
support incorporating a "clear and convincing'' standard into Sec.
105(a), we find the opposite to be correct. Sections 1111 and
1154(b) implicate distinguishable circumstances to justify a
heightened evidentiary standard. Specifically, Sec. 1111 relates to
wartime disability compensation, creating a presumption of soundness
only for veterans found "to have been in sound condition when
examined, accepted, and enrolled for service'' unless there is
"clear and unmistakable evidence'' that the injury existed before
service and was not aggravated by wartime service. Similarly, Sec.
1154 relates to injuries sustained by a "veteran who engaged in
combat with the enemy in active service'' unless service connection
of such injuries are "rebutted by clear and convincing evidence.''
We therefore find that the absence of a heightened standard in Sec.
105(a) supports a finding that Congress did not intend for such a
standard to apply where the veteran's own willful misconduct or
abuse of alcohol was involved. See Wagner
v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004).
Thus, we find that preponderance of the evidence is the proper evidentiary
standard necessary to rebut a Sec. 105(a) presumption and determine
that a peacetime disability was the result of willful misconduct.
Accordingly, the Veterans Court properly affirmed the Board's
application of a preponderance of the evidence standard to rebut the
Sec. 105(a) presumption and the Board's determination that Thomas
did not incur his injuries in the line of duty. Thomas, 423 F.3d at 1282-84 (footnotes omitted).
Although the court was specifically discussing the standard
applicable to rebuttal of the presumption in 38 U.S.C. 105(a), the
court's analysis clearly applies to the rebuttal of any presumption in
those cases where Congress has not provided a specific standard.
Therefore, Sec. 5.3© would adopt the preponderance standard in such
cases.
VA does not consider all evidence of equal weight and does not
merely count pieces of evidence for and against an issue.
That is, in weighing the evidence, VA is as much or more concerned with the quality
of evidence as it is with its quantity.
The CAVC stated in Gilbert that a determination under
38 U.S.C. 5107(b) (then 3007(b)) is ``* * * more
qualitative than quantitative; it is one not capable of measurement
with mathematical precision and certitude. Equal weight is not accorded
to each piece of material contained in a record; every item of evidence
does not have the same probative value.'' Judgments must be made * *
*.'' Gilbert, 1 Vet. App. at 57. While this remark was made in the
context of an exposition of the equipoise standard, we believe it is
also applicable to the evaluation of evidence generally, as we propose
to provide in Sec. 5.3(d).
We propose not to include the fifth sentence of current Sec.
3.102, which states with regard to reasonable doubt that "t is not
a means of reconciling actual conflict or a contradiction in the
evidence.'' The reconciliation of actual conflict between evenly
balanced "positive'' and "negative'' evidence in a manner that favors
the claimant is precisely the function of the equipoise standard. We
therefore propose not to include this sentence because retaining it
would be misleading.
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