Veteranclaims’s Blog

July 13, 2010

Federal Register, Combat PTSD Act, July 12, 2010

After looking at the act as published we found the following VA commentary in response to comments submitted of interest:
“The reduced evidentiary standard provided by the rule is not
applicable solely because a veteran reports that he or she experienced
fear. Under the rule, VA will not rely on a veteran’s lay testimony
alone to establish occurrence of the stressor unless the following
requirements are satisfied. First, the veteran must have experienced,
witnessed, or have been confronted by 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, and the veteran’s
response to the event or circumstance must have involved a
psychological or psycho-physiological state of fear, helplessness, or
horror
. Second, a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, must confirm that the claimed
stressor is adequate to support a diagnosis of PTSD and that the
veteran’s symptoms are related to the claimed stressor
. Third, there
must be in the record no clear and convincing evidence to the contrary,
and fourth, the claimed stressor must be consistent with the places,
types, and circumstances of the veteran’s service. Because all of these
requirements must be met for the veteran’s lay testimony alone to
establish the occurrence of the claimed stressor, we believe the
likelihood of fraud to be minimal. Finally, 38 CFR 3.327(a) requires a
reexamination whenever VA determines there is a need to verify either
the continued existence or the current severity of a disability.”

It will be interesting to see how the court interprets this restriction regarding that only VA physicians and psychiatrists are competent to render PTSD diagnosis of stressors and symptoms of PTSD.
Consistent with the DSM-IV, VA has limited the mental health
professionals who are qualified to perform initial Compensation and
Pension (C&P) examinations for mental disorders to highly trained
professionals. See VBA Fast Letter 06-03 (Mar. 15, 2006).

VA Replies to numerous commentaries on this issues include:
Psychiatrist or Psychologist Employed by VA or With Whom VA Has
Contracted

The majority of comments that VA received expressed disagreement
with the requirement that the evidentiary standard for establishing
occurrence of the stressor will be liberalized only if “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.” We have grouped these comments
together by subject matter and address them below.

Consistency With 38 U.S.C. 5125

Some commenters asserted that the rule is contrary to 38 U.S.C.
5125, which one commenter contended means that VA must accept the
opinion of a private physician if the opinion is adequate for rating
purposes. In support of this contention, the commenter relied upon the
heading of section 5125, “Acceptance of reports of private physician
examinations.”
Section 5125 provides that, “[f]or purposes of establishing any
claim for benefits under chapter 11 or 15 of [title 38], a report of a
medical examination administered by a private physician that is
provided by a claimant in support of a claim for benefits * * * may be
accepted without a requirement for confirmation by an examination by a
physician employed by the Veterans Health Administration [(VHA)] if the
report is sufficiently complete to be adequate for the purpose of
adjudicating such claim.” (Emphasis added). Generally, use of the word
“may”

[[Page 39847]]

suggests that a provision is permissive, not mandatory. Jama v.
Immigration & Customs Enforcement, 543 U.S. 335, 346 (2005). See 60 FR
27409 (May 24, 1995) (final rule amending 38 CFR 3.326 to reflect
section 5125’s authorization of private physician’s examination reports
if adequate for rating purposes). The meaning of section 5125 is plain,
and therefore, the heading of the section cannot be used to limit its
meaning. Bhd. of R.R. Trainmen v. Baltimore & O.R. Co., 331 U.S. 519,
528-29 (1947). Thus, VA is not required to accept the report of a
private physician as sufficient for rating a claim in all
circumstances.

Alternative Qualifications for Psychiatrists and Psychologists

Commenters wrote that VA should accept the opinion of any
psychiatrist or psychologist who evaluates the claimed condition based
on the DSM-IV protocol or VA’s protocol for PTSD examinations or who is
certified by the APA. Several commenters asserted that private
physicians provide more comprehensive and/or better examinations. Other
commenters alleged that VA examiners refuse to diagnose PTSD and that
their examinations are inconsistent and do not comply with DSM-IV.
Also, one commenter contended that no confirmatory evidence from a VA
psychiatrist or psychologist should be required because these examiners
are often biased against claimants and likely to diagnose a mental
disorder other than PTSD.
We decline to expand the rule to include the opinion of any
psychiatrist or psychologist whose diagnosis conforms to DSM-IV or VA’s
protocol or who is certified by the APA because we believe that VA or
contract examiners are uniquely qualified for the following reasons.

VA Examiners Are Trained To Provide Forensic Opinions Necessary To
Decide PTSD Claims

By making 38 U.S.C. 5125 discretionary rather than mandatory,
Congress clearly recognized that there may be circumstances in which VA
would require a confirmatory medical opinion. The situation described
in this rule is such a circumstance because it eliminates the
requirement of credible supporting evidence of the occurrence of an
alleged non-combat stressor under 38 CFR 3.304(f) in the situation
described. Because the rule permits the proof of an in-service stressor
based on the claimant’s lay statement alone, VA believes that it is
reasonable to limit this liberalization to medical opinions from
practitioners who it knows are well-skilled and well-equipped to
provide such forensic evidence, rather than broaden the rule to include
opinions from private physicians.
VA’s need for such forensic evidence is particularly important in
the case of a claim for service connection for a mental disorder.

When the DSM-IV categories, criteria, and textual descriptions
are employed for forensic purposes, there are significant risks that
diagnostic information will be misused or misunderstood. These
dangers arise because of the imperfect fit between the questions of
ultimate concern to the law and the information contained in a
clinical diagnosis. * * *
Nonclinical decision makers should also be cautioned that a
diagnosis does not carry any necessary implications regarding the
causes of the individual’s mental disorder or its associated
impairments.

DSM-IV at xxiii; see VHA Directive 2008-005 (Jan. 29, 2008).
Consistent with the DSM-IV, VA has limited the mental health
professionals who are qualified to perform initial Compensation and
Pension (C&P) examinations for mental disorders to highly trained
professionals. See VBA Fast Letter 06-03 (Mar. 15, 2006).

A C&P examination for PTSD is particularly complex because an
examiner must: (1) Make complex judgments about potential malingering
in the context of an administrative evaluation that will have obvious
financial implications for a veteran;
(2) Comprehensively diagnose all comorbid mental disorders and
apportion disability to various disorders in veterans who increasingly
have co-occurring mental disorders; and
(3) Render an informed opinion about the effects of PTSD on social
and occupational functioning, requiring a careful and often time-
consuming review of a veteran’s history. Department of Veterans
Affairs, Best Practice Manual for Posttraumatic Stress Disorder (PTSD)
Compensation and Pension Examinations (Best Practice Manual) 21-22,
http://www.avapl.org/pub/PTSD%20Manual%20final%206.pdf.

VA Examiners Are Well-Trained in How To Perform PTSD Examinations

VA provides extensive guidance to VHA examiners about how to
perform C&P examinations and gives specific guidance about PTSD
examinations. Id. at 13-22; C&P Service Clinician’s Guide (Clinician’s
Guide), ch. 14 (Mar. 2002), http://www.warms.vba.va.gov/21guides.html.

VA Certifies VA Examiners and Reviews the Quality of Examinations by VA
and Contract Examiners

In addition, all PTSD C&P evaluations are performed by qualified
examiners who utilize evidence-based instruments, as recommended in the
Fiscal Year 2007 report of the VA Special Committee on PTSD. The Under
Secretary for Health’s Post-Traumatic Stress Disorder Special
Committee: FY 2006 Annual Report, 9 (Jun. 5, 2007). In response to the
Special Committee’s recommendation, the Compensation and Pension Exam
Program (CPEP), in conjunction with the Employee Education System and
VHA/DoD Program Coordination Office, established a program requiring
training and certification of all VHA clinicians who conduct C&P
examinations, including Fee-for-Service Providers, which program
includes special modules and tests for initial examinations for PTSD.
VHA Directive 2008-005. In a May 2009 report to Congress, the Special
Committee advised that the recommendation had been “met.”
The CPEP office also reviews the quality of examinations of
claimants conducted by VHA clinicians, including PTSD examinations, and
when CPEP identifies problems in the quality of examinations, steps are
taken to improve the quality via CPEP-sponsored conferences and
training.
VBA provides contract examiners with information regarding the
requirements of C&P examinations, and the quality of examinations
provided by VA contractors is reviewed quarterly by a physician and
nurse employed by VBA.

VA and Contract Examiners Are Often Better Informed About the Veteran.

In addition, VA psychiatrists and psychologists and contract
examiners are often better informed about a veteran being examined than
private practitioners are. When VBA requests a mental-disorder
examination, including an examination for PTSD, it sends the claims
folder to the examiner for the examiner’s review. Manual M21-1 MR, Part
III, subpart iv, ch. 3, sec. A, para. 1.e. The C&P examination
worksheet for an initial evaluation for PTSD requires review of the
veteran’s claims file. The worksheet states, “A diagnosis of PTSD
cannot be adequately documented or ruled out without obtaining a
detailed military history and reviewing the claims folder.”
Clinician’s Guide at 207. A private psychiatrist or psychologist would
not have access to such documentation before opining about whether a
claimed stressor is adequate

[[Page 39848]]

to support a PTSD diagnosis and whether the veteran’s symptoms are
related to the claimed stressor.

VA Examiners Perform More Examinations, Thereby Ensuring Consistency in
Evaluations.

Finally, VA believes that the requirement in the rule for a
confirmatory opinion from a VA psychiatrist or psychologist, or a
psychiatrist or psychologist with whom VA has contracted, will “ensure
standardization and consistency of mental health evaluations and
reporting of these evaluations.” Proposed Rule, 74 FR at 42618. VHA
performs over 700,000 C&P examinations annually, VHA Directive 2008-
005, at 1, and contract physicians provide approximately 120,000 C&P
examinations annually. As explained above, CPEP reviews VHA examination
reports, and VBA reviews the reports of contract examiners. The review
of these reports helps to guarantee the quality and consistency of PTSD
examinations. However, VA has no control over the quality of
examinations performed by private healthcare providers. Because VA is
willing to liberalize the evidentiary standard for proving a stressor
only in cases on which it can depend on the quality of the medical
opinion, we decline to accept the opinion of any psychiatrist or
psychologist as suggested.
With regard to the assertion that private physicians provide more
comprehensive and/or better examinations, we believe that the protocol
for initial VA examinations for PTSD, to which all VA and contract
examiners must adhere, ensures comprehensive examinations addressing
all aspects of a veteran’s medical, social, and psychological history
and the veteran’s current mental status. Clinician’s Guide at 206-12.
We therefore make no change based on this comment.
We are unaware of VA examiners who refuse to diagnose PTSD, are
biased against claimants, or are likely to diagnose a mental disorder
other than PTSD, as other commenters alleged. In fact, a VBA review
revealed that, when C&P examinations were conducted, PTSD was diagnosed
in 77% of initial claims. Best Practice Manual at 1, 5, 57. We believe
that the CPEP and VBA reviews of VA and contract examinations ensure
consistency in examinations, and if CPEP assessments identify problems,
steps are taken to improve quality and consistency, such as CPEP-
sponsored training or recommendations to revise examination templates
and/or worksheets. Also, if a VA examination does not comply with DSM-
IV, as the commenter alleges, the examination is returned to the
examiner for substantiation, as required by 38 CFR 4.125(a). We
therefore make no changes to the regulation based on these comments.

VA Social Workers, Counselors, and Former Clinicians

Some commenters urged VA to accept confirmatory opinions from VA
social workers, counselors, therapists, and former psychiatrists and
psychologists. One commenter contended that consistency in examinations
by such providers is guaranteed by VHA Handbook 1160.01, Uniform Mental
Health Services in VA Medical Centers and Clinics, http://www1.va.gov/
emshg/docs/VHA_CEMP_Uniform_Mental_Health_Services_Hndb_1160_
01_61108.pdf, and VA Handbook 5005/23, Part II, Appendix G39,
providing the requirements for appointment as a VHA social worker. As
explained above, a C&P examination is forensic evidence for purposes of
determining whether a veteran is entitled to disability compensation
for PTSD and, if so, how much. This rule requires the medical opinion
of a VA psychiatrist or psychologist, or a contract psychiatrist or
psychologist, because VA can rely on the consistency and quality of
examinations conducted by such individuals. These handbooks, on the
other hand, pertain to care of VA patients, not C&P examinations, and
to the appointment of personnel. They do not ensure the degree of
training, information, and experience necessary to ensure quality and
consistency in examinations.
With regard to former VA psychiatrists and psychologists, some
former clinicians may not have been CPEP-certified depending upon when
they were employed by VA. In addition, their examinations would not be
subject to ongoing CPEP review, nor would they have access to a
veteran’s claims file to conduct the review required by the PTSD
examination protocol. Therefore, VA would be unable to ensure
standardization, consistency, and quality of their examinations. For
that reason, we decline to permit their medical opinions to qualify for
the evidentiary liberalization provided by this rule.

Potential Conflict for VA Examiners

Two commenters stated that the rule might present a conflict for a
VA examiner who is required to act in the best interests of his or her
patient. VBA Fast Letter 06-03 acknowledges that, “[t]o maintain the
integrity of the patient-provider relationship, it is preferable that a
veteran’s treating health care provider not perform the C&P
examination,” and advises that, when an adjudicator requests a mental-
disorder examination or opinion, the adjudicator “specify that the
veteran’s treating health care provider should not perform the
examination if possible.” This should avert any conflict.

Training and Availability of VA Psychiatrists and Psychologists

A commenter expressed concern about the training and education of
psychiatrists or psychologists employed by VA or with whom VA has
contracted and stated that it may be necessary for these examiners to
receive training in military history. Another commenter said that the
rule would require veterans to visit doctors who may be unfamiliar with
their medical and treatment histories and could unnecessarily cause
veterans to relive past stressors in order to establish service
connection for a disability for which they have already been diagnosed.
The commenter also said that the rule would impose on veterans who live
in rural states an unreasonable burden to travel long distances to
obtain the requisite examination by a VA psychiatrist or psychologist
or an examiner with whom VA has contracted.
VA examiners are well-trained in how to interact with veterans
during a C&P examination. As explained above, the PTSD examination
protocol requires examiners to review the veteran’s claims file so that
the examiner will be familiar with the veteran’s medical and military
history. See Best Practice Manual at 22. In addition, it is estimated
that examiners should spend 20 minutes orienting the veteran to the
interview, reviewing the veteran’s military history, and conducting a
trauma assessment. Id. The Best Practice Manual states at page 14 that

it is important to explain to the claimant that it is necessary
to obtain a detailed description of one or more traumatic events
related to military service, in order to complete the examination.
Further, it is helpful to alert him or her to the fact that trauma
assessment, though brief (about 15-20 minutes), may cause some
distress. The veteran should be advised that trauma assessment is a
mutual and collaborative process, and that he or she is not required
to provide unnecessarily detailed answers to all questions, if it is
too distressing to do so.

Assessment of a personally relevant trauma proceeds only “after
sufficient rapport has developed and some cursory details regarding the
context of the trauma situation(s) have been gathered.” Id.

[[Page 39849]]

VA recognizes that an accurate diagnosis of PTSD requires extended
discussion of experiences that may have been extremely traumatic and
that repression, denial, and general haziness of memories are often
hurdles in obtaining an adequate military history. Clinician’s Guide at
196-97. Examiners are therefore advised that “it is crucial that the
examiner place emphasis on avoiding an authoritarian role, avoiding
judgmental interventions, and establishing rapport through an initial
focus on current life experiences or other discussion which encourages
comfort in the interview.” Id. at 197. Based upon the training
provided to these examiners, which we have explained above, we believe
that they are well-prepared to examine veterans while minimizing the
risk of causing veterans undue distress through reliving of their
traumatic experiences.
As for the availability of examiners to provide the opinions
required by the rule, VA intends to carefully monitor the need for
examiners in various regions of the country and to make examiners
available in response to demand. In fact, one reason for using contract
examiners is to provide qualified examiners in places far from the
closest VA medical facility.

Private Practitioners Other Than Psychiatrists and Psychologists

Some commenters suggested that VA expand the rule to include the
opinion of a private licensed therapist, counselor, or social worker
who has treated the claimant. To ensure that examiners are competent to
provide findings and opinions that are valid and necessary for rating
purposes, VBA determined that individuals who conduct C&P mental
disorder examinations must have specific qualifications. VBA Fast
Letter 06-03. Only mental health professionals with the following
credentials are qualified to perform initial C&P mental disorder
examinations: (1) Board-certified psychiatrists or board-“eligible”
psychiatrists; (2) licensed doctorate-level psychologists; (3)
doctorate-level mental health providers under the close supervision of
a board-certified or board-eligible psychiatrist or licensed doctorate-
level psychologist; (4) psychiatry residents under the close
supervision of a board-certified or board-eligible psychiatrist or
licensed doctorate-level psychologist; and (5) clinical or counseling
psychologists completing a one-year internship or residency (for
purposes of a doctorate-level degree) under the close supervision of a
board-certified or board-eligible psychiatrist or licensed doctorate-
level psychologist. Because VA has no guarantee that a private licensed
therapist, counselor, or social worker who has treated a veteran has
the qualifications required for a C&P mental disorder examination, we
decline to adopt the commenters’ suggestion.

Consideration of Veteran’s Evidence

Some commenters asserted that the requirement for a confirmatory
opinion from a VA practitioner or contract examiner discriminates
against veterans with PTSD or veterans whose claims are based on a
particular type of stressor and potentially violates their right to
equal protection under the law. Another commenter asserted that the
rule violates due process by denying a claimant the ability to submit
competent medical evidence from private mental health professionals to
rebut the VA opinion. One commenter suggested that the rule should
specifically provide for rebuttal of the VA examiner’s opinion with
non-VA evidence. Also, commenters asserted that the rule would not
permit a veteran to submit evidence from a private physician or
psychologist or would require VA to reject such an opinion, thereby
conflicting with VA’s obligation to consider all evidence of record,
and would violate the benefit of the doubt rule. Another commenter
asserted that, absent the opinion of a VA psychiatrist or psychologist
confirming that the claimed stressor is adequate to support a PTSD
diagnosis and that the veteran’s symptoms are related to the claimed
stressor, VA adjudicators would not weigh or analyze the evidence.
Other commenters asserted that the rule would violate 38 CFR 3.303(a)
and 38 U.S.C. 5107(b).
These concerns are unfounded. Nothing in the rule precludes a
claimant from submitting private medical evidence, permits VA to ignore
any evidence that is submitted, or requires VA to reject an opinion
from a private physician or psychologist. Statute and regulation
require VA to consider all information and lay and medical evidence of
record when deciding a claim for veterans benefits. 38 U.S.C. 5107(b);
38 CFR 3.303(a). Service connection for PTSD requires medical evidence
diagnosing the disability, medical evidence establishing a link between
the veteran’s current symptoms and an in-service stressor, and credible
evidence corroborating occurrence of the stressor. 38 CFR 3.304. If a
stressor claimed by a veteran is related to the veteran’s fear of
hostile military or terrorist activity, the evidentiary standard for
establishing occurrence of the stressor can be reduced but only if 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 PTSD diagnosis and that the veteran’s symptoms are related
to the stressor. If such confirmation is made in accordance with the
rule, VA will not require evidence corroborating occurrence of the
claimed stressor. Failure to obtain such confirmation, however, does
not necessarily result in denial of the claim. If such confirmation is
not made in accordance with the rule, VA will assist the claimant in
obtaining evidence to corroborate occurrence of the claimed stressor.
VA will consider all evidence of record, including evidence submitted
by the claimant, give the claimant the benefit of the doubt when the
evidence is in equipoise, and determine whether the requirements for
establishing service connection for PTSD under 38 CFR 3.304(f) have
been satisfied, notwithstanding any failure to satisfy the requirements
of new section 3.304(f)(3). 38 U.S.C. 5103A and 5107(b); 38 CFR
3.303(a) and 3.102.

Competent Medical Evidence

Some commenters asserted that the requirement for confirmatory
evidence from a VA psychiatrist or psychologist conflicts with 38 CFR
3.159(a)(1), which defines “competent medical evidence” to include
“evidence provided by a person who is qualified through education,
training, or experience to offer medical diagnoses, statements, or
opinions.”
There is no conflict because the definition in Sec. 3.159(a)(1)
concerns a matter different from the subject of this rule. This rule
concerns whether “credible supporting evidence” will be required to
establish the occurrence of a stressor in a claim for service
connection of PTSD. Section 3.159(a)(1) defines the phrase “competent
medical evidence” for purposes of explaining when VA will provide a
medical examination or obtain a medical opinion in any service
connection claim. See 38 U.S.C. 5103A(d)(2)(A) (VA “shall” provide
medical examination or obtain medical opinion when several conditions
are met, including that the record “contains competent medical
evidence” that the claimant has a current disability or persistent or
recurrent symptoms of disability); 38 CFR 3.159(c)(4)(i) (VA must
provide a medical examination or obtain a medical opinion if several
conditions are met, including that the information and evidence of
record does not contain “sufficient competent medical evidence”

[[Page 39850]]

to decide the claim, but contains “competent lay or medical evidence”
of a current diagnosed disability or persistent or recurrent symptoms
of disability). Thus, the existence of “competent medical evidence”
in the record does not preclude VA from obtaining a medical examination
but rather mandates an examination if the other regulatory requirements
are satisfied. For these reasons, we make no change to the rule based
on these comments.

Treating Physician Rule

One commenter stated that the rule is in essence an “anti-treating
physician” rule and that VA should adopt the “treating physician”
rule used by the Social Security Administration. As explained above,
the rule does not preclude a claimant from submitting and VA from
considering evidence from the claimant’s treating physician, if the
claim cannot be granted under the new section 3.304(f)(3) procedures.
Also, as the U.S. Court of Appeals for the Federal Circuit has
recognized, adoption of the treating physician rule may conflict with
the benefit of the doubt rule and would conflict with 38 CFR 3.303(a),
which requires that service connection determinations will be based on
the entire evidence of record and due consideration of VA’s policy to
administer the law under a broad and liberal interpretation, consistent
with the facts of each case. White v. Principi, 243 F.3d 1378, 1381
(Fed. Cir. 2001); 38 U.S.C. 5107 and 7104(a); 38 CFR 3.102. We
therefore do not adopt this suggestion.

Claimant’s Evidentiary Burden

One commenter stated that the rule would increase the evidentiary
burden on a claimant by requiring a confirmatory opinion by a VA
psychiatrist or psychologist and a finding that the stressor is
consistent with the places, types, and circumstances of the veteran’s
service.
Section 3.304(f) currently requires a medical-nexus opinion linking
a veteran’s current symptoms and the claimed stressor. This rule merely
provides a liberalized evidentiary standard in certain situations based
on the opinion of a VA psychiatrist or psychologist. Further, the
requirement for consistency is mandated by 38 U.S.C. 1154(a) and 38 CFR
3.303(a). Also, pursuant to 38 U.S.C. 5103A(a) and (c), VA has a duty
to assist a claimant for disability compensation in obtaining evidence
necessary to substantiate the claim. In particular, VA is required to
provide an examination or obtain a medical opinion when necessary to
decide a claim for disability compensation. 38 U.S.C. 5103A(d). Section
5103A(d)(3) states that an examination or opinion is necessary if the
record contains competent evidence of a current disability or
persistent or recurrent symptoms, indicates that the disability or
symptoms may be associated with the claimant’s active service, and does
not contain sufficient medical evidence for VA to make a decision on
the claim.
One commenter asked whether the rule requires that the occurrence
of a stressor be corroborated by evidence of a veteran’s response to
the stressor, such as behavioral changes as provided in former Sec.
3.304(f)(4), or whether the veteran’s lay testimony will be accepted as
sufficient proof of the stressor. If the requirements of the rule are
met, VA may accept the veteran’s lay testimony as sufficient proof of
the stressor. If, however, the requirements of the rule are not met,
the record must contain corroborating evidence of the stressor. The
rule does not require corroboration by evidence of the veteran’s
response, but evidence of the veteran’s response is required for a
legitimate diagnosis of PTSD resulting from exposure to the stressor.
Furthermore, evidence of the veteran’s response may be used to prove
the occurrence of the stressor. Before deciding whether the stressor
has been corroborated, VA will examine all the evidence of record to
determine whether it corroborates occurrence of the stressor. See 38
CFR 3.303(a). Also, Manual M21-1MR instructs adjudicators to review
alternative sources of evidence that may corroborate a claimed in-
service stressor, such as a veteran’s contemporaneous letters and
diaries and performance reports. M21-1MR, Part III, subpart IV, ch. 4,
sec. H, para. 29.i-k.”

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++

[Federal Register: July 13, 2010 (Volume 75, Number 133)]
[Rules and Regulations]
[Page 39843-39852]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13jy10-13]

[[Page 39843]]

=======================================================================
———————————————————————–

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AN32

Stressor Determinations for Posttraumatic Stress Disorder

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

———————————————————————–

SUMMARY: The Department of Veterans Affairs (VA) is amending 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 eliminates 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, 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, provided that
the claimed stressor is consistent with the places, types, and
circumstances of the veteran’s service.
This amendment takes into consideration the current scientific
research studies relating PTSD to exposure to hostile military and
terrorist actions. The amendment acknowledges 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 will be reduced in these cases. The amendment will facilitate
the timely processing of PTSD claims by simplifying the development and
research procedures that apply to these claims.

DATES: Effective Date: This final rule is effective July 12, 2010.
Applicability Date: This final rule applies to an application for
service connection for PTSD that:
Is received by VA on or after July 12, 2010;
Was received by VA before July 12, 2010 but has not been
decided by a VA regional office as of that date;
Is appealed to the Board of Veterans’ Appeals (Board) on
or after July 12, 2010;
Was appealed to the Board before July 12, 2010 but has not
been decided by the Board as of that date; or
Is pending before VA on or after July 12, 2010 because the
Court of Appeals for Veterans Claims (Veterans Court) vacated a Board
decision on the application and remanded it for readjudication.

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: On August 24, 2009, VA published in the
Federal Register (74 FR 42617) a proposal to modify the evidentiary
standards for establishing an in-service stressor when a veteran files
a claim for service connection for PTSD. We proposed to add a new
paragraph (3) to 38 CFR 3.304(f) to state 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 contract
equivalent 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. This evidentiary liberalization is
consistent with the American Psychiatric Association’s (APA) Diagnostic
and Statistical Manual of Mental Disorders, Fourth Edition (1994) (DSM-
IV) criteria for a PTSD diagnosis, as explained in the notice of
proposed rulemaking. The rule further re-designates former paragraph
(f)(3) as (f)(4), governing PTSD claims from former prisoners of war,
and re-designates paragraph (f)(4) as (f)(5), governing PTSD claims
based on in-service personal assault or military sexual trauma (MST).
Interested persons were invited to submit written comments on or
before October 23, 2009. We received 126 comments on the proposed rule.
VA received comments from veterans service organizations, including The
American Legion, National Organization of Veterans’ Advocates, Disabled
American Veterans, Veterans for Common Sense, Paralyzed Veterans of
America, and The Wounded Warrior Project; from public interest groups,
including the Los Angeles Inner City Law Center and National Research
Center for Women and Families; from government agencies, such as the
New York City Department of Health and Mental Hygiene and the State of
New York Division of Veterans Affairs; and from individuals. VA also
received comments from members of the Subcommittee on Disability
Assistance and Memorial Affairs of the House of Representatives
Committee on Veterans’ Affairs and other persons who participated in a
roundtable discussion of the proposed rule, as well as from members of
Congress.
We also received numerous comments from veterans and surviving
spouses regarding their individual claims for veterans benefits. We do
not respond to these comments in this notice as they are beyond the
scope of this rulemaking.

Presumption of Service Connection Based on Receipt of Certain Pay

Some commenters suggested that VA revise the rule to create a
presumption of service connection for PTSD based upon receipt of
imminent-danger or hostile-fire pay. We make no change based on these
comments because they are beyond the scope of the rule, which is
limited to providing a reduced evidentiary standard for establishing
occurrence of the stressor based upon a particular type of stressor.

Fear of Hostile Military or Terrorist Activity

Some commenters suggested that the rule should be revised to reduce
the evidentiary standard for veterans who had certain Military
Occupational Specialties (MOS). A MOS may be considered as evidence of
exposure to a stressor, including hostile military or terrorist
activity. See Veterans Benefits Administration (VBA) Adjudication
Procedures Manual Rewrite M21-1MR (Manual M21-1MR), Part IV, subpart
ii, ch. 1, sec. D, para. 13.k. However, a particular MOS does not
necessarily establish such an exposure. See Dizoglio v. Brown, 9 Vet.
App. 163, 166 (1996). Therefore, we make no changes based on these
comments.
Some commenters interpreted the proposed rule as limited to fear of
hostile or terrorist activity while serving in a combat zone, and
others suggested that the rule should be revised to provide a reduced
evidentiary standard on the basis of service in a combat zone. One
commenter asked whether the rule applies to veterans who served on a
submarine. The rule has no geographic requirement and is not limited to
service in a combat zone or on land. Rather, it applies to all persons
who served in active military, naval, or air service, as defined in 38
U.S.C. 101(24), and were discharged or released from

[[Page 39844]]

such service under conditions other than dishonorable.
One commenter stated the term “stressor” is ambiguous and may
lead one to believe that the rule applies only if a veteran can
identify a single specific event instead of hostile military or
terrorist activity generally. One commenter suggested that the rule
should apply as well to a series of events or the totality of
circumstances of deployment to a combat zone. Another commenter
questioned the meaning of the phrase “consistent with the . . .
circumstances of service” and doubted whether an examiner would ever
find that a traumatic event experienced by a veteran who had an MOS of
cook is consistent with the circumstances of the veteran’s service.
Another commenter inquired about whether the examiner would be
responsible for determining whether the stressor is consistent with the
veteran’s service.
VA believes that the language in the proposed rule is not
ambiguous. As stated in the rule, “ `fear of hostile military or
terrorist activity’ means that a veteran experienced, witnessed, or was
confronted with an event or circumstance.” (Emphasis added). The term
“circumstance” means “a condition, fact, or event accompanying,
conditioning, or determining another: an essential or inevitable
concomitant.” Webster’s Ninth New Collegiate Dictionary, 242 (1990).
Therefore, the rule provides that a veteran’s “fear” need not emanate
from a single event or be consistent with the veteran’s MOS but rather
the fear may result from conditions to which the veteran was exposed
during service. The requirement that a claimed stressor be consistent
with the places, types, and circumstances of the veteran’s service
originates in the statute that authorizes this regulation, 38 U.S.C.
1154(a), which requires VA to duly consider the places, types and
circumstances of the veteran’s service. In addition, consistent with
section 1154(a), VA regulations provide that consistency with the
places, types, and circumstances of service is shown by the veteran’s
service records, the official history of each organization in which the
veteran served, medical records, and all pertinent medical and lay
evidence. 38 CFR 3.303(a). Finally, VA adjudicators, not examining
psychiatrists and psychologists, will decide whether the claimed
stressor is consistent with the veteran’s service.
One commenter stated that the term “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” implies that a
veteran must experience an event that is close and highly lethal. As
stated above, there is no geographic requirement for the regulation.
However, the stressor must be consistent with the places, types, and
circumstances of the veteran’s service. 38 U.S.C. 1154. In addition, an
event does not have to be lethal. As provided in the rule, the
traumatic event can involve actual or threatened serious injury, as
well as death, or a threat to the physical integrity of the veteran or
others.
One commenter stated that the list of examples in the definition of
“fear of hostile military or terrorist activity” is incomplete and
would “likely result in [VA] rejecting as adequate stressors such
events as injuring or killing of civilians.” Another commenter
suggested adding language to clarify that an event or circumstance does
not have to include one of the situations listed in the definition,
e.g., “an actual or potential improvised explosive device; * * *
incoming artillery, rocket, or mortar fire; grenade.” A list of
examples cannot reasonably include every conceivable event or
circumstance that would qualify as hostile military or terrorist
activity under the rule. Nevertheless, we disagree that this
“incompleteness” would likely result in VA rejecting events such as
the injuring or killing of civilians. The definition of “fear of
hostile military or terrorist activity” is not limited to any
particular class of individuals. Involvement of “actual or threatened
death or serious injury, or a threat to the physical integrity of the
veteran or others,” which is not limited to military personnel, is all
that is required to qualify as “an event or circumstance” within the
meaning of the rule. Therefore, if a veteran experienced, witnessed, or
was confronted with an event involving actual or threatened death,
serious injury, or a threat to the physical integrity of civilians, the
event would qualify as a stressor. Also, by using the modifying phrase
“such as,” VA intends to present a list of examples to illustrate
what qualifies as an event or circumstance, not a defining restriction.
See Donovan v. Anheuser-Busch, Inc., 666 F.2d 315, 327 (8th Cir. 1981).
A commenter suggested that the definition of “fear of hostile
military or terrorist activity” be extended to include domestic as
well as foreign activity. The regulation is not limited to events or
circumstances perpetrated by a foreign enemy. Therefore, VA makes no
change based on the comment.
Some commenters said that VA should define when a stressor would be
considered consistent with the places, types, and circumstances of the
veteran’s service. One commenter asked whether a veteran’s claimed fear
of hostile military activity during service in South Korea after the
Korean Conflict ended or in the continental United States after
September 11, 2001, would be consistent with the places, types, and
circumstances of such service. Another commenter suggested that the
rule should explain the types of evidence needed to establish
consistency with the places, types, and circumstances of service.
The question of consistency is a matter involving application of 38
U.S.C. 1154(a) and 38 CFR 3.303(a) to the myriad of facts presented by
individual claims. We note, however, that inclusion of the conjunction
“and” in the statute and regulation means that a stressor must be
consistent with all three of the enumerated criteria. Watson v. Dep’t
of the Navy, 262 F.3d 1292, 1299 (Fed. Cir. 2001). Finally, the statute
and regulation indicate that VA is to consider the places, types, and
circumstances of service as shown by service records, the official
history of each organization in which the veteran served, the veteran’s
medical records, and all pertinent medical and lay evidence. Some
commenters suggested that the rule be broadened to provide a reduced
evidentiary standard based solely on deployment to a war zone or fear
of such deployment, rather than on fear of hostile military or
terrorist activity. One commenter suggested that such a rule is
supported by the Institute of Medicine (IOM), Gulf War & Health, Vol.
6: Physiologic, Psychologic, and Psychosocial Effects of Deployment-
Related Stress, 319 (2008) (IOM Report), which states:

The epidemiologic literature on deployed vs[.] nondeployed
veterans yielded sufficient evidence of an association between
deployment to a war zone and psychiatric disorders, including
[PTSD], other anxiety disorders, and depression; alcohol abuse;
accidental death and suicide in the first few years after return
from deployment; and marital and family conflict, including
interpersonal violence.

We do not adopt this suggestion because many of the hardships related
to deployment, such as uncertainty about the length of a tour of duty
and lack of companionship or family contact, do not satisfy the DSM-IV
requirements for a PTSD diagnosis, i.e., experiencing, witnessing, or
confronting an event involving actual or threatened death or serious
injury or threat to the physical integrity of self or others. IOM
Report at 35-38; DSM-IV at 427. We have instead focused the rule on
factors associated with deployment that comport with the DSM-IV
definition of PTSD.

[[Page 39845]]

Some commenters inquired whether the rule would cover a service
member who experienced fear of hostile military or terrorist activity
after learning about the experiences of others with such activity but
before being deployed to a war zone. It is not our intention that the
new evidentiary standard apply in such a situation, and we do not
interpret the rule to cover that situation. Such a claim would be
adjudicated under the generally applicable standard set forth in the
introductory text of 38 CFR 3.304(f). The IOM Committee “defin[ed]
deployment-related stress as deployment to a war zone” and
“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.” IOM
Report at 13. Consistent with these findings, the rule is intended to
apply only when the veteran’s service is proximate in time and place to
the traumatic event to which the veteran has responded with intense
fear, helplessness, or horror. This is consistent with current
provisions of 38 CFR 3.304(f) that do not require corroborating
evidence of occurrence of a stressor if a veteran was diagnosed with
PTSD in service, engaged in combat with the enemy, or was a prisoner of
war, i.e., circumstances of service in which it is undisputed that the
veteran was personally exposed to a stress-inducing event, making it
unnecessary to obtain supporting documentation. See Proposed Rule, 57
FR 34536 (Aug. 5, 1992) (not requiring corroborating evidence that a
stressor occurred if evidence establishes that the veteran engaged in
combat or is a former prisoner of war). A non-deployed veteran who
learns that others were subject to a hostile military or terrorist
activity in a war zone cannot be said to have “experienced, witnessed,
or [been] confronted with an event or circumstance” within the
contemplation of the new regulation. In such cases, the claimed
stressor (the hostile military or terrorist activity) would not be
consistent with the places, types, and circumstances of the veteran’s
service when the activity occurred or the veteran learned that others
were subjected to such activity.

Coverage of Other Stressors

VA also received comments suggesting that the rule should cover
stressors such as MST, abuse by military personnel of subordinate
military personnel, harassment, suicide of a fellow service member,
witnessing a military vehicle accident in the United States, a fellow
soldier’s or sailor’s post-service suicide, and social, political, and
economic discrimination. One commenter suggested that VA should
promulgate a similar rule to assist those with physical injuries due to
hostile military or terrorist activity. These comments are outside the
scope of this rule. Therefore, we make no change based on them.
However, regarding MST, we note as well that 38 CFR 3.304(f)(5) (before
this rulemaking codified at 38 CFR 3.304(f)(4)) permits evidence other
than a veteran’s service records to corroborate the occurrence of an
in-service personal assault and prohibits VA from denying a claim for
service connection for PTSD based on in-service personal assault
without first advising the claimant that evidence from sources other
than a veteran’s service records may prove the stressor occurred.

Post-Combat Stress Disorder

A number of commenters suggested that use of the term PTSD is
socially stigmatizing, is embarrassing to combat veterans, and may
cause veterans to forego needed professional treatment. One commenter
suggested that VA re-categorize PTSD rated as 70 percent or more
disabling as post-combat stress disorder to diminish the stigma
associated with a diagnosis of PTSD, encourage veterans to seek
treatment, and prevent possible suicide. As explained in 38 CFR 4.130,
the nomenclature in the VA schedule of ratings for mental disorders is
based upon the DSM-IV, and 38 CFR 4.125 requires that a diagnosis of a
mental disorder conform to the DSM-IV in order to substantiate a claim.
Because the DSM-IV does not include post-combat stress disorder as a
diagnosis, we make no change based on these comments.

Opposition to Liberalizing Evidentiary Standard

VA received written comments objecting to the liberalizing
evidentiary standard for PTSD claims based on fear of hostile military
or terrorist activity. Several commenters alleged that the rule implies
that all a veteran must do to be granted service connection is
communicate that he or she experienced “fear” to corroborate a
stressor, will invite frivolous or fraudulent claims against the
Federal Government, is offensive to heroic combat veterans of current
and past wartime periods, and will delay adjudication of their claims.
One commenter suggested that VA should re-evaluate veterans diagnosed
with PTSD.
The reduced evidentiary standard provided by the rule is not
applicable solely because a veteran reports that he or she experienced
fear. Under the rule, VA will not rely on a veteran’s lay testimony
alone to establish occurrence of the stressor unless the following
requirements are satisfied. First, the veteran must have experienced,
witnessed, or have been confronted by 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, and the veteran’s
response to the event or circumstance must have involved a
psychological or psycho-physiological state of fear, helplessness, or
horror. Second, a VA psychiatrist or psychologist, or a psychiatrist or
psychologist with whom VA has contracted, must confirm that the claimed
stressor is adequate to support a diagnosis of PTSD and that the
veteran’s symptoms are related to the claimed stressor. Third, there
must be in the record no clear and convincing evidence to the contrary,
and fourth, the claimed stressor must be consistent with the places,
types, and circumstances of the veteran’s service. Because all of these
requirements must be met for the veteran’s lay testimony alone to
establish the occurrence of the claimed stressor, we believe the
likelihood of fraud to be minimal. Finally, 38 CFR 3.327(a) requires a
reexamination whenever VA determines there is a need to verify either
the continued existence or the current severity of a disability.

This rule is not intended to discount the heroic efforts of combat
veterans, but rather is VA’s response to scientific studies related to
PTSD and military troop deployment. As noted in the proposed rule:

Combat is one of the most potent stressors that a person can
experience, but as 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, the ubiquity of improvised explosive
devices, caring for the badly injured or dying, duty on the graves
registration service, and being responsible for the treatment of
prisoners of war.

Proposed Rule, 74 FR at 42618 (quoting IOM Report at 2). Finally, we
believe that this rule will improve the timeliness of the adjudication
of claims of all veterans by eliminating the need to search for
corroborating evidence in certain cases. For these reasons, we

[[Page 39846]]

make no change based on these comments.

DSM-IV Definition of PTSD

Some commenters stated that the proposed rule is inconsistent with
DSM-IV, which does not require “a psychological or psycho-
physiological state of fear, helplessness, or horror” to a traumatic
event. Another commenter stated that VA is prohibited from using terms
in the regulation that do not appear in DSM-IV.
The commenters are incorrect. In order to satisfy the DSM-IV
diagnostic criteria for PTSD, a person’s response to a traumatic event
must involve “intense fear, helplessness, or horror.” DSM-IV at 428.
In addition, the traumatic event must be persistently reexperienced in
one or more of several ways, including “intense psychological distress
at exposure to internal or external cues that symbolize or resemble an
aspect of the traumatic event” and “physiologic reactivity on
exposure to internal or external cues that symbolize or resemble an
aspect of the traumatic event,” all of which involve intense
psychological stress or psycho-physiological response. Id. In any
event, nothing prohibits VA from using in this regulation a term that
does not appear in the DSM-IV. As indicated above, the nomenclature
employed by VA in the schedule for rating mental disorders “is based
upon the [DSM-IV].” 38 CFR 4.130. This rule, however, does not concern
the evaluation of mental disorders. It liberalizes the evidentiary
standard for corroboration of a stressor in certain cases. Using a term
that does not appear in the DSM-IV is well within VA’s authority to
prescribe exactly which cases may benefit from the liberalized
evidentiary standard.
A commenter expressed concern that the rule is limited to “fear of
hostile or terrorist activity” and asked whether a veteran would be
entitled to the reduced evidentiary standard if the veteran manifested
flashbacks and nightmares long after service. Both this rule and
flashbacks and nightmares are related to the diagnostic criteria for
PTSD, but they relate to distinct criteria. The rule relates to the
criterion of a person’s exposure to a traumatic event and the person’s
response to that event. See DSM-IV at 427-428. Flashbacks and
nightmares relate to the criterion of the person’s re-experiencing of
the traumatic event. DSM-IV at 428.
Another commenter asserted that the requirement in the rule that
the stressor must be consistent with the places, types, and
circumstances of a veteran’s service renders the rule narrower than the
DSM-IV definition of PTSD and that the requirement that the stressor
relate to a veteran’s fear of hostile military or terrorist activity
narrows the DSM-IV definition of PTSD.
As indicated above, in replying to a comment about the meaning of
the phrase “consistent with the * * * circumstances of service,”
under 38 U.S.C. 1154(a), VA must duly consider the places, types, and
circumstances of a veteran’s service as shown by the veteran’s service
record, the official history of each organization in which such veteran
served, the veteran’s medical records, and all pertinent medical and
lay evidence. Such consideration is a general requirement that applies
to any service connection claim, not just claims for service connection
of PTSD. Because section 1154 is the authority for this rule, we
incorporate the statutory requirement into the rule.
Because the requirement that a claimed stressor relate to a
veteran’s fear of hostile military or terrorist activity has no effect
on the diagnostic criteria for PTSD, the requirement does not narrow
the DSM-IV definition of PTSD. The effect of the rule is to relax the
evidentiary standard for establishing the occurrence of an in-service
stressor for certain veterans, and the rule is limited to cases in
which the claimed stressor is related to the veteran’s fear of hostile
military or terrorist activity for the reasons given in the notice of
proposed rulemaking. Proposed Rule, 74 FR at 42618 (explaining that the
rule is consistent with scientific studies related to PTSD and military
troop deployment). The rule focuses on the procedure for establishing
service connection for PTSD, not the criteria for establishing a
legitimate diagnosis. Therefore, there is no inconsistency with the
medical community at large, and we make no change based on the comment.
In addition, the rule defines “fear of hostile military or terrorist
activity” as “involv[ing] a psychological or psycho-physiological
state of fear, helplessness, or horror.”
One commenter stated that fear of hostile military or terrorist
activity may not be sufficient to give rise to a diagnosis of PTSD in
accordance with DSM-IV absent occurrence of an actual event. We agree
that the occurrence of an actual event or circumstance is necessary. In
fact, as the commenter noted, the first DSM-IV diagnostic criterion for
PTSD is exposure to a traumatic event. DSM-IV at 427. The rule does not
permit diagnosis of PTSD in the absence of exposure to a traumatic
event or circumstance. The rule lists several examples of events or
circumstances that could give rise to the requisite fear. The rule
eliminates the need for corroborating evidence of the event if the
requirements of the rule are met.
Another commenter asserted that the Global Assessment of
Functioning (GAF) score has limited use and should be replaced. Axis V
of the DSM-IV multiaxial diagnosis system measures the overall severity
of psychiatric disturbance based on the GAF Scale, which rates an
individual’s social, occupational, and psychological functioning. VA
regulations do not require a GAF score for purposes of determining
whether PTSD is service connected, although the score may be required
or requested by the Veterans Court, the Board, or a rating specialist
for purposes of assessing the extent of disability after service
connection has been established. This comment is therefore beyond the
scope of this rulemaking.

Psychiatrist or Psychologist Employed by VA or With Whom VA Has
Contracted

The majority of comments that VA received expressed disagreement
with the requirement that the evidentiary standard for establishing
occurrence of the stressor will be liberalized only if “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.” We have grouped these comments
together by subject matter and address them below.

Consistency With 38 U.S.C. 5125

Some commenters asserted that the rule is contrary to 38 U.S.C.
5125, which one commenter contended means that VA must accept the
opinion of a private physician if the opinion is adequate for rating
purposes. In support of this contention, the commenter relied upon the
heading of section 5125, “Acceptance of reports of private physician
examinations.”
Section 5125 provides that, “[f]or purposes of establishing any
claim for benefits under chapter 11 or 15 of [title 38], a report of a
medical examination administered by a private physician that is
provided by a claimant in support of a claim for benefits * * * may be
accepted without a requirement for confirmation by an examination by a
physician employed by the Veterans Health Administration [(VHA)] if the
report is sufficiently complete to be adequate for the purpose of
adjudicating such claim.” (Emphasis added). Generally, use of the word
“may”

[[Page 39847]]

suggests that a provision is permissive, not mandatory. Jama v.
Immigration & Customs Enforcement, 543 U.S. 335, 346 (2005). See 60 FR
27409 (May 24, 1995) (final rule amending 38 CFR 3.326 to reflect
section 5125’s authorization of private physician’s examination reports
if adequate for rating purposes). The meaning of section 5125 is plain,
and therefore, the heading of the section cannot be used to limit its
meaning. Bhd. of R.R. Trainmen v. Baltimore & O.R. Co., 331 U.S. 519,
528-29 (1947). Thus, VA is not required to accept the report of a
private physician as sufficient for rating a claim in all
circumstances.

Alternative Qualifications for Psychiatrists and Psychologists

Commenters wrote that VA should accept the opinion of any
psychiatrist or psychologist who evaluates the claimed condition based
on the DSM-IV protocol or VA’s protocol for PTSD examinations or who is
certified by the APA. Several commenters asserted that private
physicians provide more comprehensive and/or better examinations. Other
commenters alleged that VA examiners refuse to diagnose PTSD and that
their examinations are inconsistent and do not comply with DSM-IV.
Also, one commenter contended that no confirmatory evidence from a VA
psychiatrist or psychologist should be required because these examiners
are often biased against claimants and likely to diagnose a mental
disorder other than PTSD.
We decline to expand the rule to include the opinion of any
psychiatrist or psychologist whose diagnosis conforms to DSM-IV or VA’s
protocol or who is certified by the APA because we believe that VA or
contract examiners are uniquely qualified for the following reasons.

VA Examiners Are Trained To Provide Forensic Opinions Necessary To
Decide PTSD Claims

By making 38 U.S.C. 5125 discretionary rather than mandatory,
Congress clearly recognized that there may be circumstances in which VA
would require a confirmatory medical opinion. The situation described
in this rule is such a circumstance because it eliminates the
requirement of credible supporting evidence of the occurrence of an
alleged non-combat stressor under 38 CFR 3.304(f) in the situation
described. Because the rule permits the proof of an in-service stressor
based on the claimant’s lay statement alone, VA believes that it is
reasonable to limit this liberalization to medical opinions from
practitioners who it knows are well-skilled and well-equipped to
provide such forensic evidence, rather than broaden the rule to include
opinions from private physicians.
VA’s need for such forensic evidence is particularly important in
the case of a claim for service connection for a mental disorder.

When the DSM-IV categories, criteria, and textual descriptions
are employed for forensic purposes, there are significant risks that
diagnostic information will be misused or misunderstood. These
dangers arise because of the imperfect fit between the questions of
ultimate concern to the law and the information contained in a
clinical diagnosis. * * *
Nonclinical decision makers should also be cautioned that a
diagnosis does not carry any necessary implications regarding the
causes of the individual’s mental disorder or its associated
impairments.

DSM-IV at xxiii; see VHA Directive 2008-005 (Jan. 29, 2008).
Consistent with the DSM-IV, VA has limited the mental health
professionals who are qualified to perform initial Compensation and
Pension (C&P) examinations for mental disorders to highly trained
professionals. See VBA Fast Letter 06-03 (Mar. 15, 2006).

A C&P examination for PTSD is particularly complex because an
examiner must: (1) Make complex judgments about potential malingering
in the context of an administrative evaluation that will have obvious
financial implications for a veteran;
(2) Comprehensively diagnose all comorbid mental disorders and
apportion disability to various disorders in veterans who increasingly
have co-occurring mental disorders; and
(3) Render an informed opinion about the effects of PTSD on social
and occupational functioning, requiring a careful and often time-
consuming review of a veteran’s history. Department of Veterans
Affairs, Best Practice Manual for Posttraumatic Stress Disorder (PTSD)
Compensation and Pension Examinations (Best Practice Manual) 21-22,
http://www.avapl.org/pub/PTSD%20Manual%20final%206.pdf.

VA Examiners Are Well-Trained in How To Perform PTSD Examinations

VA provides extensive guidance to VHA examiners about how to
perform C&P examinations and gives specific guidance about PTSD
examinations. Id. at 13-22; C&P Service Clinician’s Guide (Clinician’s
Guide), ch. 14 (Mar. 2002), http://www.warms.vba.va.gov/21guides.html.

VA Certifies VA Examiners and Reviews the Quality of Examinations by VA
and Contract Examiners

In addition, all PTSD C&P evaluations are performed by qualified
examiners who utilize evidence-based instruments, as recommended in the
Fiscal Year 2007 report of the VA Special Committee on PTSD. The Under
Secretary for Health’s Post-Traumatic Stress Disorder Special
Committee: FY 2006 Annual Report, 9 (Jun. 5, 2007). In response to the
Special Committee’s recommendation, the Compensation and Pension Exam
Program (CPEP), in conjunction with the Employee Education System and
VHA/DoD Program Coordination Office, established a program requiring
training and certification of all VHA clinicians who conduct C&P
examinations, including Fee-for-Service Providers, which program
includes special modules and tests for initial examinations for PTSD.
VHA Directive 2008-005. In a May 2009 report to Congress, the Special
Committee advised that the recommendation had been “met.”
The CPEP office also reviews the quality of examinations of
claimants conducted by VHA clinicians, including PTSD examinations, and
when CPEP identifies problems in the quality of examinations, steps are
taken to improve the quality via CPEP-sponsored conferences and
training.
VBA provides contract examiners with information regarding the
requirements of C&P examinations, and the quality of examinations
provided by VA contractors is reviewed quarterly by a physician and
nurse employed by VBA.

VA and Contract Examiners Are Often Better Informed About the Veteran.

In addition, VA psychiatrists and psychologists and contract
examiners are often better informed about a veteran being examined than
private practitioners are. When VBA requests a mental-disorder
examination, including an examination for PTSD, it sends the claims
folder to the examiner for the examiner’s review. Manual M21-1 MR, Part
III, subpart iv, ch. 3, sec. A, para. 1.e. The C&P examination
worksheet for an initial evaluation for PTSD requires review of the
veteran’s claims file. The worksheet states, “A diagnosis of PTSD
cannot be adequately documented or ruled out without obtaining a
detailed military history and reviewing the claims folder.”
Clinician’s Guide at 207. A private psychiatrist or psychologist would
not have access to such documentation before opining about whether a
claimed stressor is adequate

[[Page 39848]]

to support a PTSD diagnosis and whether the veteran’s symptoms are
related to the claimed stressor.

VA Examiners Perform More Examinations, Thereby Ensuring Consistency in
Evaluations.

Finally, VA believes that the requirement in the rule for a
confirmatory opinion from a VA psychiatrist or psychologist, or a
psychiatrist or psychologist with whom VA has contracted, will “ensure
standardization and consistency of mental health evaluations and
reporting of these evaluations.” Proposed Rule, 74 FR at 42618. VHA
performs over 700,000 C&P examinations annually, VHA Directive 2008-
005, at 1, and contract physicians provide approximately 120,000 C&P
examinations annually. As explained above, CPEP reviews VHA examination
reports, and VBA reviews the reports of contract examiners. The review
of these reports helps to guarantee the quality and consistency of PTSD
examinations. However, VA has no control over the quality of
examinations performed by private healthcare providers. Because VA is
willing to liberalize the evidentiary standard for proving a stressor
only in cases on which it can depend on the quality of the medical
opinion, we decline to accept the opinion of any psychiatrist or
psychologist as suggested.
With regard to the assertion that private physicians provide more
comprehensive and/or better examinations, we believe that the protocol
for initial VA examinations for PTSD, to which all VA and contract
examiners must adhere, ensures comprehensive examinations addressing
all aspects of a veteran’s medical, social, and psychological history
and the veteran’s current mental status. Clinician’s Guide at 206-12.
We therefore make no change based on this comment.
We are unaware of VA examiners who refuse to diagnose PTSD, are
biased against claimants, or are likely to diagnose a mental disorder
other than PTSD, as other commenters alleged. In fact, a VBA review
revealed that, when C&P examinations were conducted, PTSD was diagnosed
in 77% of initial claims. Best Practice Manual at 1, 5, 57. We believe
that the CPEP and VBA reviews of VA and contract examinations ensure
consistency in examinations, and if CPEP assessments identify problems,
steps are taken to improve quality and consistency, such as CPEP-
sponsored training or recommendations to revise examination templates
and/or worksheets. Also, if a VA examination does not comply with DSM-
IV, as the commenter alleges, the examination is returned to the
examiner for substantiation, as required by 38 CFR 4.125(a). We
therefore make no changes to the regulation based on these comments.

VA Social Workers, Counselors, and Former Clinicians

Some commenters urged VA to accept confirmatory opinions from VA
social workers, counselors, therapists, and former psychiatrists and
psychologists. One commenter contended that consistency in examinations
by such providers is guaranteed by VHA Handbook 1160.01, Uniform Mental
Health Services in VA Medical Centers and Clinics, http://www1.va.gov/
emshg/docs/VHA_CEMP_Uniform_Mental_Health_Services_Hndb_1160_
01_61108.pdf, and VA Handbook 5005/23, Part II, Appendix G39,
providing the requirements for appointment as a VHA social worker. As
explained above, a C&P examination is forensic evidence for purposes of
determining whether a veteran is entitled to disability compensation
for PTSD and, if so, how much. This rule requires the medical opinion
of a VA psychiatrist or psychologist, or a contract psychiatrist or
psychologist, because VA can rely on the consistency and quality of
examinations conducted by such individuals. These handbooks, on the
other hand, pertain to care of VA patients, not C&P examinations, and
to the appointment of personnel. They do not ensure the degree of
training, information, and experience necessary to ensure quality and
consistency in examinations.
With regard to former VA psychiatrists and psychologists, some
former clinicians may not have been CPEP-certified depending upon when
they were employed by VA. In addition, their examinations would not be
subject to ongoing CPEP review, nor would they have access to a
veteran’s claims file to conduct the review required by the PTSD
examination protocol. Therefore, VA would be unable to ensure
standardization, consistency, and quality of their examinations. For
that reason, we decline to permit their medical opinions to qualify for
the evidentiary liberalization provided by this rule.

Potential Conflict for VA Examiners

Two commenters stated that the rule might present a conflict for a
VA examiner who is required to act in the best interests of his or her
patient. VBA Fast Letter 06-03 acknowledges that, “[t]o maintain the
integrity of the patient-provider relationship, it is preferable that a
veteran’s treating health care provider not perform the C&P
examination,” and advises that, when an adjudicator requests a mental-
disorder examination or opinion, the adjudicator “specify that the
veteran’s treating health care provider should not perform the
examination if possible.” This should avert any conflict.

Training and Availability of VA Psychiatrists and Psychologists

A commenter expressed concern about the training and education of
psychiatrists or psychologists employed by VA or with whom VA has
contracted and stated that it may be necessary for these examiners to
receive training in military history. Another commenter said that the
rule would require veterans to visit doctors who may be unfamiliar with
their medical and treatment histories and could unnecessarily cause
veterans to relive past stressors in order to establish service
connection for a disability for which they have already been diagnosed.
The commenter also said that the rule would impose on veterans who live
in rural states an unreasonable burden to travel long distances to
obtain the requisite examination by a VA psychiatrist or psychologist
or an examiner with whom VA has contracted.
VA examiners are well-trained in how to interact with veterans
during a C&P examination. As explained above, the PTSD examination
protocol requires examiners to review the veteran’s claims file so that
the examiner will be familiar with the veteran’s medical and military
history. See Best Practice Manual at 22. In addition, it is estimated
that examiners should spend 20 minutes orienting the veteran to the
interview, reviewing the veteran’s military history, and conducting a
trauma assessment. Id. The Best Practice Manual states at page 14 that

it is important to explain to the claimant that it is necessary
to obtain a detailed description of one or more traumatic events
related to military service, in order to complete the examination.
Further, it is helpful to alert him or her to the fact that trauma
assessment, though brief (about 15-20 minutes), may cause some
distress. The veteran should be advised that trauma assessment is a
mutual and collaborative process, and that he or she is not required
to provide unnecessarily detailed answers to all questions, if it is
too distressing to do so.

Assessment of a personally relevant trauma proceeds only “after
sufficient rapport has developed and some cursory details regarding the
context of the trauma situation(s) have been gathered.” Id.

[[Page 39849]]

VA recognizes that an accurate diagnosis of PTSD requires extended
discussion of experiences that may have been extremely traumatic and
that repression, denial, and general haziness of memories are often
hurdles in obtaining an adequate military history. Clinician’s Guide at
196-97. Examiners are therefore advised that “it is crucial that the
examiner place emphasis on avoiding an authoritarian role, avoiding
judgmental interventions, and establishing rapport through an initial
focus on current life experiences or other discussion which encourages
comfort in the interview.” Id. at 197. Based upon the training
provided to these examiners, which we have explained above, we believe
that they are well-prepared to examine veterans while minimizing the
risk of causing veterans undue distress through reliving of their
traumatic experiences.
As for the availability of examiners to provide the opinions
required by the rule, VA intends to carefully monitor the need for
examiners in various regions of the country and to make examiners
available in response to demand. In fact, one reason for using contract
examiners is to provide qualified examiners in places far from the
closest VA medical facility.

Private Practitioners Other Than Psychiatrists and Psychologists

Some commenters suggested that VA expand the rule to include the
opinion of a private licensed therapist, counselor, or social worker
who has treated the claimant. To ensure that examiners are competent to
provide findings and opinions that are valid and necessary for rating
purposes, VBA determined that individuals who conduct C&P mental
disorder examinations must have specific qualifications. VBA Fast
Letter 06-03. Only mental health professionals with the following
credentials are qualified to perform initial C&P mental disorder
examinations: (1) Board-certified psychiatrists or board-“eligible”
psychiatrists; (2) licensed doctorate-level psychologists; (3)
doctorate-level mental health providers under the close supervision of
a board-certified or board-eligible psychiatrist or licensed doctorate-
level psychologist; (4) psychiatry residents under the close
supervision of a board-certified or board-eligible psychiatrist or
licensed doctorate-level psychologist; and (5) clinical or counseling
psychologists completing a one-year internship or residency (for
purposes of a doctorate-level degree) under the close supervision of a
board-certified or board-eligible psychiatrist or licensed doctorate-
level psychologist. Because VA has no guarantee that a private licensed
therapist, counselor, or social worker who has treated a veteran has
the qualifications required for a C&P mental disorder examination, we
decline to adopt the commenters’ suggestion.

Consideration of Veteran’s Evidence

Some commenters asserted that the requirement for a confirmatory
opinion from a VA practitioner or contract examiner discriminates
against veterans with PTSD or veterans whose claims are based on a
particular type of stressor and potentially violates their right to
equal protection under the law. Another commenter asserted that the
rule violates due process by denying a claimant the ability to submit
competent medical evidence from private mental health professionals to
rebut the VA opinion. One commenter suggested that the rule should
specifically provide for rebuttal of the VA examiner’s opinion with
non-VA evidence. Also, commenters asserted that the rule would not
permit a veteran to submit evidence from a private physician or
psychologist or would require VA to reject such an opinion, thereby
conflicting with VA’s obligation to consider all evidence of record,
and would violate the benefit of the doubt rule. Another commenter
asserted that, absent the opinion of a VA psychiatrist or psychologist
confirming that the claimed stressor is adequate to support a PTSD
diagnosis and that the veteran’s symptoms are related to the claimed
stressor, VA adjudicators would not weigh or analyze the evidence.
Other commenters asserted that the rule would violate 38 CFR 3.303(a)
and 38 U.S.C. 5107(b).
These concerns are unfounded. Nothing in the rule precludes a
claimant from submitting private medical evidence, permits VA to ignore
any evidence that is submitted, or requires VA to reject an opinion
from a private physician or psychologist. Statute and regulation
require VA to consider all information and lay and medical evidence of
record when deciding a claim for veterans benefits. 38 U.S.C. 5107(b);
38 CFR 3.303(a). Service connection for PTSD requires medical evidence
diagnosing the disability, medical evidence establishing a link between
the veteran’s current symptoms and an in-service stressor, and credible
evidence corroborating occurrence of the stressor. 38 CFR 3.304. If a
stressor claimed by a veteran is related to the veteran’s fear of
hostile military or terrorist activity, the evidentiary standard for
establishing occurrence of the stressor can be reduced but only if 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 PTSD diagnosis and that the veteran’s symptoms are related
to the stressor. If such confirmation is made in accordance with the
rule, VA will not require evidence corroborating occurrence of the
claimed stressor. Failure to obtain such confirmation, however, does
not necessarily result in denial of the claim. If such confirmation is
not made in accordance with the rule, VA will assist the claimant in
obtaining evidence to corroborate occurrence of the claimed stressor.
VA will consider all evidence of record, including evidence submitted
by the claimant, give the claimant the benefit of the doubt when the
evidence is in equipoise, and determine whether the requirements for
establishing service connection for PTSD under 38 CFR 3.304(f) have
been satisfied, notwithstanding any failure to satisfy the requirements
of new section 3.304(f)(3). 38 U.S.C. 5103A and 5107(b); 38 CFR
3.303(a) and 3.102.

Competent Medical Evidence

Some commenters asserted that the requirement for confirmatory
evidence from a VA psychiatrist or psychologist conflicts with 38 CFR
3.159(a)(1), which defines “competent medical evidence” to include
“evidence provided by a person who is qualified through education,
training, or experience to offer medical diagnoses, statements, or
opinions.”
There is no conflict because the definition in Sec. 3.159(a)(1)
concerns a matter different from the subject of this rule. This rule
concerns whether “credible supporting evidence” will be required to
establish the occurrence of a stressor in a claim for service
connection of PTSD. Section 3.159(a)(1) defines the phrase “competent
medical evidence” for purposes of explaining when VA will provide a
medical examination or obtain a medical opinion in any service
connection claim. See 38 U.S.C. 5103A(d)(2)(A) (VA “shall” provide
medical examination or obtain medical opinion when several conditions
are met, including that the record “contains competent medical
evidence” that the claimant has a current disability or persistent or
recurrent symptoms of disability); 38 CFR 3.159(c)(4)(i) (VA must
provide a medical examination or obtain a medical opinion if several
conditions are met, including that the information and evidence of
record does not contain “sufficient competent medical evidence”

[[Page 39850]]

to decide the claim, but contains “competent lay or medical evidence”
of a current diagnosed disability or persistent or recurrent symptoms
of disability). Thus, the existence of “competent medical evidence”
in the record does not preclude VA from obtaining a medical examination
but rather mandates an examination if the other regulatory requirements
are satisfied. For these reasons, we make no change to the rule based
on these comments.

Treating Physician Rule

One commenter stated that the rule is in essence an “anti-treating
physician” rule and that VA should adopt the “treating physician”
rule used by the Social Security Administration. As explained above,
the rule does not preclude a claimant from submitting and VA from
considering evidence from the claimant’s treating physician, if the
claim cannot be granted under the new section 3.304(f)(3) procedures.
Also, as the U.S. Court of Appeals for the Federal Circuit has
recognized, adoption of the treating physician rule may conflict with
the benefit of the doubt rule and would conflict with 38 CFR 3.303(a),
which requires that service connection determinations will be based on
the entire evidence of record and due consideration of VA’s policy to
administer the law under a broad and liberal interpretation, consistent
with the facts of each case. White v. Principi, 243 F.3d 1378, 1381
(Fed. Cir. 2001); 38 U.S.C. 5107 and 7104(a); 38 CFR 3.102. We
therefore do not adopt this suggestion.

Claimant’s Evidentiary Burden

One commenter stated that the rule would increase the evidentiary
burden on a claimant by requiring a confirmatory opinion by a VA
psychiatrist or psychologist and a finding that the stressor is
consistent with the places, types, and circumstances of the veteran’s
service.
Section 3.304(f) currently requires a medical-nexus opinion linking
a veteran’s current symptoms and the claimed stressor. This rule merely
provides a liberalized evidentiary standard in certain situations based
on the opinion of a VA psychiatrist or psychologist. Further, the
requirement for consistency is mandated by 38 U.S.C. 1154(a) and 38 CFR
3.303(a). Also, pursuant to 38 U.S.C. 5103A(a) and (c), VA has a duty
to assist a claimant for disability compensation in obtaining evidence
necessary to substantiate the claim. In particular, VA is required to
provide an examination or obtain a medical opinion when necessary to
decide a claim for disability compensation. 38 U.S.C. 5103A(d). Section
5103A(d)(3) states that an examination or opinion is necessary if the
record contains competent evidence of a current disability or
persistent or recurrent symptoms, indicates that the disability or
symptoms may be associated with the claimant’s active service, and does
not contain sufficient medical evidence for VA to make a decision on
the claim.
One commenter asked whether the rule requires that the occurrence
of a stressor be corroborated by evidence of a veteran’s response to
the stressor, such as behavioral changes as provided in former Sec.
3.304(f)(4), or whether the veteran’s lay testimony will be accepted as
sufficient proof of the stressor. If the requirements of the rule are
met, VA may accept the veteran’s lay testimony as sufficient proof of
the stressor. If, however, the requirements of the rule are not met,
the record must contain corroborating evidence of the stressor. The
rule does not require corroboration by evidence of the veteran’s
response, but evidence of the veteran’s response is required for a
legitimate diagnosis of PTSD resulting from exposure to the stressor.
Furthermore, evidence of the veteran’s response may be used to prove
the occurrence of the stressor. Before deciding whether the stressor
has been corroborated, VA will examine all the evidence of record to
determine whether it corroborates occurrence of the stressor. See 38
CFR 3.303(a). Also, Manual M21-1MR instructs adjudicators to review
alternative sources of evidence that may corroborate a claimed in-
service stressor, such as a veteran’s contemporaneous letters and
diaries and performance reports. M21-1MR, Part III, subpart IV, ch. 4,
sec. H, para. 29.i-k.

Relationship to Other Rules

One commenter stated that the rule could be viewed as restricting
or superseding the beneficial rule codified at 38 CFR 3.304(f)(2),
which states that a veteran’s lay testimony alone is sufficient to
establish the occurrence of a claimed stressor if the veteran engaged
in combat with the enemy and the claimed stressor is related to that
combat. We make no change based on this comment because the new rule
merely provides another avenue by which veterans seeking disability
compensation for PTSD can establish service connection and does not
restrict or supersede any existing VA rules intended to assist
claimants. A qualifying veteran may still establish service connection
under 38 CFR 3.304(f)(2) without regard to the new rule.
Another commenter asked whether corroborating evidence of a
stressor would be required if a veteran is not a combat veteran or does
not qualify for the reduced evidentiary standard under this rule.
Section 3.304(f) relaxes the ordinary evidentiary standard in other
situations also, such as PTSD diagnosed in service, a former prisoner
of war as claimant, and a claim based on personal assault in service.
However, in the absence of such circumstances, VA would not grant
service connection for PTSD unless the record contains a medical
diagnosis of PTSD, medical evidence of a nexus between current symptoms
and the in-service stressor, and corroborating evidence of the
occurrence of the stressor. 38 CFR 3.304(f).

Authority for Rule

One commenter also suggested that VA should provide a legal
foundation for the regulation and suggests the Persian Gulf War
Veterans Act of 1998, Public Law 105-277, Div. C, tit. XVI, sec. 1603,
112 Stat. 2681-742, 2681-745, and the Veterans Programs Enhancement Act
of 1998, Public Law 105-368, sec. 105, 112 Stat. 3315, 3324, which
authorized the 2008 IOM report.
As explained in the notice of proposed rulemaking, the authority
for this rulemaking is 38 U.S.C. 501(a)(1), which authorizes the
Secretary to promulgate regulations “with respect to the nature and
extent of proof and evidence and the method of taking and furnishing
them in order to establish the right to benefits under such laws,” and
38 U.S.C. 1154(a), which requires the Secretary to “include in the
regulations pertaining to the service-connection of disabilities”
provisions requiring “due consideration” of the places, types, and
circumstances of a veteran’s service. Proposed Rule, 74 FR 42617. We
make no change to the rule based on this comment because the public
laws cited by the commenter do not authorize regulations regarding the
nature and extent of proof and evidence necessary to establish service
connection for PTSD.

Applicability Date

This final rule applies to an application for service connection
for PTSD that is received by VA on or after the rule’s effective date,
was received by VA before the rule’s effective date but has not been
decided by a VA regional office as of that date, is appealed to the
Board on or after the rule’s effective date, was appealed to the Board
before the rule’s effective date but has not been

[[Page 39851]]

decided by the Board as of that date, or is pending before VA on or
after the rule’s effective date because the Veterans Court vacated a
Board decision on the application and remanded it for readjudication.
Some commenters suggested that the rule should be applied
retroactively to claims that were finally denied by VA before the
effective date of the regulation. Another commenter suggested that the
effective date of an award of benefits under the rule should be the
earlier of the date of the veteran’s claim or October 21, 1998, the
date of enactment of the Persian Gulf War Veterans Act of 1998. We do
not adopt these suggestions.
Congress has provided that, once a decision on a claim for veterans
benefits becomes “final,” “the claim will not thereafter be reopened
or allowed, except as may otherwise be provided by regulations not
inconsistent with [title 38, United States Code].” 38 U.S.C. 7105(c).
There are only two exceptions to this statutory rule of finality. Cook
v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc). The
Secretary must reopen a previously denied claim if new and material
evidence is submitted, and a final VA decision is subject to revision
based on clear and unmistakable error. 38 U.S.C. 5108, 5109A, and 7111.
Whether a final decision involves clear and unmistakable error is
determined under the law that was in effect when the decision was made.
Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). This
rule was not and will not have been in effect for a claim that was
finally denied before the rule’s effective date. Therefore, VA will not
apply the rule to claims that were finally denied before the effective
date of the rule unless new and material evidence is submitted.
The effective date of benefits awarded pursuant to this rule will
be assigned in accordance with the facts found but will not be earlier
than the date of claim. 38 U.S.C. 5110(a). Although 38 U.S.C. 5110(g)
and 38 CFR 3.114(a) authorize in some circumstances an effective date
of benefits before the date of claim, those provisions are applicable
to “administrative issue[s]” that liberalize the basis for benefit
entitlement. VAOPGCPREC 11-99, para. 10 (liberalizing issue is one
which effects substantive change in regulation and creates a new basis
for entitlement to a benefit); S. Rep. No. 87-2042, at 2, 4, 6 (1962)
(enactment of former sec. 3010(g) (currently sec. 5110(g)) intended to
eliminate, when feasible, VA practice of requiring “specific
application for the new benefit” whenever new regulation was
promulgated); H.R. Rep. No. 87-2123, at 2, 4, 6 (1962) (same). This
regulation, however, governs procedural matters rather than creating a
new basis for entitlement to service connection for PTSD because it
merely relaxes under certain circumstances the evidentiary standard for
establishing occurrence of a stressor. As a result, 38 U.S.C. 5110(a),
rather than 38 U.S.C. 5110(g), is applicable to awards under this rule.
Although VAOPGCPREC 7-92 held that provisions in the VBA Adjudication
Procedures Administration Manual M21-1 relieving former prisoners of
war and combat veterans of the burden of producing evidence to
substantiate that they experienced a stressful event are substantive
rules, the opinion concerns the dichotomy between substantive and
interpretive rules for purposes of determining whether notice-and-
comment rulemaking is required pursuant to 5 U.S.C. 553, a dichotomy
that is not relevant for purposes of determining whether section
5110(g) applies.
Another commenter asked whether the rule would constitute new
evidence for purposes of reopening a finally denied claim for service
connection for PTSD. The change in the evidentiary standard for
establishing occurrence of an in-service stressor would not constitute
a basis on which to reopen a finally denied claim for service
connection for PTSD because it is procedural in nature and does not
effect a substantive change in the law governing service connection for
disabilities. Routen v. West, 142 F.3d 1434, 1442 (Fed. Cir. 1998).
Another commenter stated that surviving spouses should be entitled
to receive the accrued benefits due their spouses under the rule.
Section 5121(a) of title 38, United States Code, authorizes an award to
certain survivors of a beneficiary of periodic monetary benefits to
which the beneficiary was “entitled at death under existing ratings or
decisions, or those based on evidence in the file at date of death * *
* and due and unpaid.” Eligible survivors of a veteran who had filed a
claim for compensation for PTSD during his or her lifetime could
therefore file a claim for accrued benefits alleging that the veteran
was entitled to service connection for PTSD under the rule based on
evidence in the file at the date of the veteran’s death, provided that
the claim for accrued benefits (if not the deceased veteran’s claim)
was received by VA on or after July 12, 2010 or was pending before VA
on that date, at either a regional office or the Board. In addition,
under 38 U.S.C. 5121A, if a claimant dies on or after October 10, 2008,
while a claim for veterans benefits or an appeal of a decision with
respect to such a claim is pending, a living person who would be
eligible to receive accrued benefits due the claimant under section
5121(a) may, not later than one year after the date of the claimant’s
death, file a request to be substituted as the claimant for the
purposes of processing the claim to completion. This rule would apply
to a claim for service connection for PTSD in which an eligible
survivor is substituted under section 5121A, provided that the
veteran’s application was received by VA on or after July 12, 2010 or
was pending before VA on that date, at either a regional office or the
Board of Veterans’ Appeals.

Cost of Regulation

A commenter asked if VA has estimated the cost of the regulation.
VA has determined that the rule will not have an annual effect on the
economy of $100 million or more. Proposed Rule, 74 FR at 42619.

Implementation Recommendations

One commenter suggested that VA: (1) Work closely with the DoD to
obtain reliable information to corroborate veterans’ deployment and
medical conditions; (2) mount an aggressive outreach campaign about the
new regulation; (3) educate veterans and the public about PTSD; (4)
monitor claims received and adjudicated under this regulation to
evaluate its impact; and (5) promulgate regulations to cover claims for
service connection for anxiety disorders, depression, and suicide based
on deployment to a war zone. We make no change based on these comments
as they are beyond the scope of this rulemaking.

Revision of Other VA Regulations

Some commenters recommended that VA revise the rating schedule for
mental disorders. We make no change based on these comments, which are
beyond the scope of this rulemaking, which deals with service
connection for PTSD, not evaluating it after service connection has
been established.

Inclusion of Rule in Part 5

Some commenters requested that the final rule be included in new
part 5 of title 38, Code of Federal Regulations. This rule will be
included in the part-5 notice of proposed rulemaking dealing with
service-connection determinations.

Regulatory Flexibility Act

The Secretary hereby certifies that this final rule will not have a
significant economic impact on a substantial number of small entities
as they are

[[Page 39852]]

defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This final
rule would not affect any small entities. Only VA beneficiaries could
be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this
final rule is exempt from the initial and final regulatory flexibility
analysis requirements of sections 603 and 604.

Paperwork Reduction Act

This document contains no provisions constituting a collection of
information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

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 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 final 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 final rule would have no such effect on
State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance Numbers and Titles

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

Signing Authority

The Secretary of Veterans Affairs, or designee, approved this
document and authorized the undersigned to sign and submit the document
to the Office of the Federal Register for publication electronically as
an official document of the Department of Veterans Affairs. John R.
Gingrich, Chief of Staff, Department of Veterans Affairs, approved this
document on May 6, 2010, for publication.

List of Subjects in 38 CFR Part 3

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

Dated: July 7, 2010.
Robert C. McFetridge,
Director, Regulation Policy and Management.

0
For the reasons set out in the preamble, VA amends 38 CFR part 3 as
follows:

PART 3–ADJUDICATION

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

0
1. The authority citation for part 3, subpart A, continues to read as
follows:

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

0
2. Amend Sec. 3.304 as follows.
0
a. Revise the introductory text of paragraph (f).
0
b. Redesignate paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and
(f)(5), respectively.
0
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. 2010-16885 Filed 7-9-10; 8:45 am]
BILLING CODE 8320-01-P

1 Comment »

  1. […] July 13, 2010 Federal Register, Combat PTSD Act, July 12, 2010 […]

    Pingback by NOVA Files Action with Federal Circuit Regarding PTSD Stressors and USC 5152 « Veteranclaims’s Blog — September 20, 2010 @ 9:08 pm


RSS feed for comments on this post. TrackBack URI

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Powered by WordPress.com.