Veteranclaims’s Blog

July 12, 2010

PTSD, Liberalizing, Federal Register August 2009

Filed under: Uncategorized — Tags: — veteranclaims @ 3:55 pm

[Federal Register: August 24, 2009 (Volume 74, Number 162)]
[Proposed Rules]
[Page 42617-42619]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24au09-15]

———————————————————————–

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AN32

Stressor Determinations for Posttraumatic Stress Disorder

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

———————————————————————–

SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its adjudication regulations governing service connection for posttraumatic stress disorder (PTSD) by liberalizing in some cases the evidentiary standard for establishing the required in-service stressor. This amendment would eliminate the requirement for corroborating that the
claimed in-service stressor occurred if a stressor claimed by a veteran
is related to the veteran’s fear of hostile military or terrorist
activity and a VA psychiatrist or psychologist confirms that the
claimed stressor is adequate to support a diagnosis of PTSD, provided
that the claimed stressor is consistent with the places, types, and
circumstances of the veteran’s service and that the veteran’s symptoms
are related to the claimed stressor.
This amendment takes into consideration the current scientific
research studies relating PTSD to exposure to hostile military and
terrorist actions. It is intended to acknowledge the inherently
stressful nature of the places, types, and circumstances of service in
which fear of hostile military or terrorist activities is ongoing. With
this amendment, the evidentiary standard of establishing an in-service
stressor would be reduced in these cases. This amendment is
additionally intended to facilitate the timely VA processing of PTSD
claims by simplifying the development and research procedures that
apply to these claims.

DATES: Comments must be received by VA on or before October 23, 2009.

ADDRESSES: Written comments may be submitted through http://
www.Regulations.gov; by mail or hand-delivery to Director, Regulations
Management (02REG), Department of Veterans Affairs, 810 Vermont Ave.,
NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026.
(This is not a toll free number). Comments should indicate that they
are submitted in response to “RIN 2900-AN32–Stressor Determinations
for Posttraumatic Stress Disorder.” Copies of 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) 461-4902 for
an appointment. (This is not a toll free number). In addition, during
the comment period, comments may be viewed online through the Federal
Docket Management System (FDMS) at http://www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Thomas J. Kniffen, Chief, Regulations
Staff (211D), Compensation and Pension Service, Veterans Benefits
Administration, Department of Veterans Affairs, 810 Vermont Avenue,
NW., Washington, DC 20420, (202) 461-9725. (This is not a toll-free
number.)

SUPPLEMENTARY INFORMATION: The Secretary of Veterans Affairs has
authority under 38 U.S.C. 501(a)(1) to prescribe regulations governing
the nature and extent of proof and evidence required to establish
entitlement to benefits. In addition, under 38 U.S.C. 1154(a), the
Secretary is required to “include in the regulations pertaining to
service-connection of disabilities” provisions requiring “due
consideration” of the places, types, and circumstances of a veteran’s
service. These statutes provide authority for this proposed amendment
of PTSD regulations.
Current regulations governing service connection of PTSD are
provided at 38 CFR 3.304(f). Under this provision, service connection
for PTSD generally requires: (1) Medical evidence diagnosing PTSD; (2)
medical evidence establishing a link between a veteran’s current
symptoms and an in-service stressor; and (3) credible supporting
evidence that the claimed in-service stressor occurred.
In some cases, the requirement to establish the occurrence of the
claimed in-service stressor can be met based on the veteran’s lay
testimony alone, provided that there is an absence of clear and
convincing evidence to the contrary and that the claimed stressor is
consistent with the circumstances, conditions, or hardships of the
veteran’s service. Such cases are those described under Sec.
3.304(f)(1), when the evidence establishes a diagnosis of PTSD during
service and the claimed stressor is related to that service; under
Sec. 3.304(f)(2), when the evidence establishes that the veteran
engaged in combat with the enemy and the claimed stressor is related to
that combat; and under current Sec. 3.304(f)(3), when the evidence
establishes that the veteran was a prisoner-of-war and the claimed

[[Page 42618]]

stressor is related to that prisoner-of-war experience. Currently, in
all other cases where service connection for PTSD is claimed, VA
regulations require credible supporting evidence corroborating the
occurrence of the claimed in-service stressor before service connection
can be established.
VA is proposing to amend Sec. 3.304(f) by redesignating current
paragraphs (3) and (4) as paragraphs (4) and (5) and adding a new
paragraph (3), stating that, if a stressor claimed by a veteran is
related to the veteran’s fear of hostile military or terrorist activity
and a VA psychiatrist or psychologist, or a psychiatrist or
psychologist with whom VA has contracted, confirms that the claimed
stressor is adequate to support a diagnosis of PTSD and that the
veteran’s symptoms are related to the claimed stressor, in the absence
of clear and convincing evidence to the contrary, and provided the
claimed stressor is consistent with the places, types, and
circumstances of the veteran’s service, the veteran’s lay testimony
alone may establish the occurrence of the claimed in-service stressor.
VA proposes to limit the confirmation of a claimed stressor to an
examination by a VA psychiatrist or psychologist, or a psychiatrist or
psychologist with whom VA has contracted, to ensure standardization and
consistency of mental health evaluations and reporting of these
evaluations, which will be based upon uniform VA examination protocols.
Under 38 CFR 4.125(a), all mental disorder diagnoses must conform
to the American Psychiatric Association’s Diagnostic and Statistical
Manual of Mental Disorders, Fourth Edition (1994) (DSM-IV). According
to DSM-IV at 427-428, the first diagnostic criterion for PTSD is:

The person has been exposed to a traumatic event in which both
of the following have been present:
(1) The person experienced, witnessed, or was confronted with an
event or events that involved actual or threatened death or serious
injury, or a threat to the physical integrity of self or others;
(2) The person’s response involved intense fear, helplessness,
or horror.

The evidentiary liberalization we propose in new Sec. 3.304(f)(3)
is consistent with DSM-IV criteria for a PTSD diagnosis, which include
experiencing or confronting “a threat to the physical integrity of
self or others” and “intense fear, helplessness, or horror” in
response.
Also consistent with DSM-IV, the proposed new Sec. 3.304(f)(3)
defines “fear of hostile military or terrorist activity” to mean that
“a veteran experienced, witnessed, or was confronted with an event or
circumstance that involved actual or threatened death or serious
injury, or a threat to the physical integrity of the veteran or others,
such as from an actual or potential improvised explosive device;
vehicle-imbedded explosive device; incoming artillery, rocket, or
mortar fire; grenade; small arms fire, including suspected sniper fire;
or attack upon friendly military aircraft, and the veteran’s response
to the event or circumstance involved a psychological or psycho-
physiological state of fear, helplessness, or horror.” A claimed
stressor must be consistent with the places, types, and circumstances
of the veteran’s service.
Additionally, the proposed regulation change is consistent with
scientific studies related to PTSD and military troop deployment. In
the recently published Gulf War and Health: Volume 6, Physiologic,
Psychologic, and Psychosocial Effects of Deployment-Related Stress
(2008), the National Academies’ Institute of Medicine (IOM) reviewed
studies on PTSD in veterans who served in Vietnam, the Gulf War,
Operation Enduring Freedom (OEF), and Operation Iraqi Freedom (OIF).
The IOM review analyzed the long-term mental and physical health
effects of “deployment to a war zone.” The stressors associated with
“deployment to a war zone” were not limited to combat because

[A]s military conflicts have evolved to include more guerilla
warfare and insurgent activities, restricting the definition of
deployment-related stressors to combat may fail to acknowledge other
potent stressors experienced by military personnel in a war zone or
in the aftermath of combat. Those stressors include constant
vigilance against unexpected attack, the absence of a defined front
line, the difficulty of distinguishing enemy combatants from
civilians, [and] the ubiquity of improvised explosive devices. * * *

(Summary, p. 2) The IOM “considered that military personnel deployed
to a war zone, even if direct combat was not experienced, have the
potential for exposure to deployment-related stressors that might
elicit a stress response.” (Introduction, p. 13)

Based on these IOM findings, VA is proposing to reduce the burden
of showing the occurrence of an in-service stressor if the claimed
stressor is related to fear of hostile military or terrorist activity,
and is consistent with the places, types, and circumstances of the
veteran’s service. The proposed amendment is intended to reduce the
time devoted to VA claims development and research of the claimed
stressor that is required to adjudicate claims for service connection
for PTSD. VA will instead rely on a veteran’s lay testimony alone to
establish occurrence of a stressor related to fear of hostile military
or terrorist activity, provided the claimed stressor is consistent with
the places, types, and circumstances of the veteran’s service, if a VA
mental health professional opines that the claimed stressor is adequate
to support a diagnosis of PTSD and that the veteran’s symptoms are
related to the claimed stressor. The proposed amendment would benefit
all veterans and would not be limited to veterans serving during the
current OEF and OIF. Improved timeliness, consistent decision-making,
and equitable resolution of PTSD claims are the intended results of the
revised regulation.

Paperwork Reduction Act

This document contains no new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). The Office of
Management and Budget has approved the collection of information
provisions that are related to this proposed rule under OMB control
number 2900-0001 (VA Form 21-526, Veterans Application for Compensation
and Pension) and under OMB control number 2900-0075 (VA Form 21-4138,
Statement in Support of Claim).

Regulatory Flexibility Act

The Secretary hereby certifies that this proposed rule will not
have a significant economic impact on a substantial number of small
entities as they are defined in the Regulatory Flexibility Act, 5
U.S.C. 601-612. This proposed rule would not affect any small entities.
Only VA beneficiaries could be directly affected. Therefore, pursuant
to 5 U.S.C. 605(b), this proposed rule is exempt from the initial and
final regulatory flexibility analysis requirements of sections 603 and
604.

Executive Order 12866

Executive Order 12866 directs agencies to assess all costs and
benefits of available regulatory alternatives and, when regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety,
and other advantages; distributive impacts; and equity). The Executive
Order classifies a “significant regulatory action,” requiring review
by the Office of Management and Budget (OMB), as any regulatory action
that is likely to result in a rule that may: (1) Have an annual effect
on the economy of $100 million or more or adversely affect in a
material way the economy, a

[[Page 42619]]

sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or Tribal
governments or communities; (2) create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) raise novel legal or policy issues arising out of legal
mandates, the President’s priorities, or the principles set forth in
the Executive Order.
The economic, interagency, budgetary, legal, and policy
implications of this proposed rule have been examined, and it has been
determined to be a significant regulatory action under the Executive
Order because it is likely to result in a rule that will raise novel
legal or policy issues arising out of legal mandates, the President’s
priorities, or the principles set forth in the Executive Order.

Unfunded Mandates

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in the expenditure by
State, local, and Tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any year. This proposed rule would have no such effect on
State, local, and Tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance Numbers and Titles

The Catalog of Federal Domestic Assistance program numbers and
titles for this rule are 64.109, Veterans Compensation for Service-
Connected Disability and 64.110, Veterans Dependency and Indemnity
Compensation for Service-Connected Death.

List of Subjects in 38 CFR Part 3

Administrative practice and procedure, Claims, Disability benefits,
Health care, Pensions, Radioactive materials, Veterans, Vietnam.

Approved: June 29, 2009.
John R. Gingrich,
Chief of Staff, Department of Veterans Affairs.

For the reasons set out in the preamble, VA proposes to amend 38
CFR part 3 as follows:

PART 3–ADJUDICATION

Subpart A–Pension, Compensation, and Dependency and Indemnity
Compensation

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. Amend Sec. 3.304 as follows.
a. Revise the introductory text of paragraph (f).
b. Redesignate paragraphs (f)(3) and (4) as paragraphs (f)(4) and
(5) respectively.
c. Add new paragraph (f)(3).
The revision and addition read as follows:

Sec. 3.304 Direct service connection; wartime and peacetime.

* * * * *
(f) Posttraumatic stress disorder. Service connection for
posttraumatic stress disorder requires medical evidence diagnosing the
condition in accordance with Sec. 4.125(a) of this chapter; a link,
established by medical evidence, between current symptoms and an in-
service stressor; and credible supporting evidence that the claimed in-
service stressor occurred. The following provisions apply to claims for
service connection of posttraumatic stress disorder diagnosed during
service or based on the specified type of claimed stressor:
* * * * *
(3) If a stressor claimed by a veteran is related to the veteran’s
fear of hostile military or terrorist activity and a VA psychiatrist or
psychologist, or a psychiatrist or psychologist with whom VA has
contracted, confirms that the claimed stressor is adequate to support a
diagnosis of posttraumatic stress disorder and that the veteran’s
symptoms are related to the claimed stressor, in the absence of clear
and convincing evidence to the contrary, and provided the claimed
stressor is consistent with the places, types, and circumstances of the
veteran’s service, the veteran’s lay testimony alone may establish the
occurrence of the claimed in-service stressor. For purposes of this
paragraph, “fear of hostile military or terrorist activity” means
that a veteran experienced, witnessed, or was confronted with an event
or circumstance that involved actual or threatened death or serious
injury, or a threat to the physical integrity of the veteran or others,
such as from an actual or potential improvised explosive device;
vehicle-imbedded explosive device; incoming artillery, rocket, or
mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.
* * * * *
[FR Doc. E9-20339 Filed 8-21-09; 8:45 am]

BILLING CODE 8320-01-P

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