28770 Federal Register / Vol. 72, No. 98 / Tuesday, May 22, 2007 / Proposed Rules 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 5 

RIN 2900–AM01 

General Evidence Requirements, 

Effective Dates, Revision of Decisions, 

and Protection of Existing Ratings 

AGENCY: Department of Veterans Affairs. 

ACTION: Proposed rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) proposes to reorganize and 

rewrite in plain language general 

provisions applicable to its 

compensation and pension regulations, 

including general evidence 

requirements, general effective dates for 

new awards, revision of decisions, and 

protection of existing ratings. These 

revisions are proposed as part of VA’s 

rewrite and reorganization of all of its 

compensation and pension rules in a 

logical, claimant-focused, and userfriendly format. The intended effect of 

the proposed revisions is to assist 

claimants and VA personnel in locating 

and understanding these general 

provisions. 

DATES: Comments must be received by 

VA on or before July 23, 2007. 

ADDRESSES: Written comments may be 

submitted through 

www.Regulations.gov; by mail or handdelivery to the Director, Regulations 

Management (00REG), Department of 

Veterans Affairs, 810 Vermont Ave., 

NW., Room 1068, Washington, DC 

20420; or by fax to (202) 273–9026. 

Comments should indicate that they are 

submitted in response to ‘‘RIN 2900– 

AM01—General Evidence 

Requirements, Effective Dates, Revision 

of Decisions, and Protection of Existing 

Ratings.’’ Copies of comments received 

will be available for public inspection in 

the Office of Regulation Policy and 

Management, Room 1063B, between the 

hours of 8 a.m. and 4:30 p.m. Monday 

through Friday (except holidays). Please 

call (202) 273–9515 for an appointment. 

(This is not a toll-free number.) In 

addition, during the comment period, 

comments may be viewed online 

through the Federal Docket Management 

System (FDMS). 

FOR FURTHER INFORMATION CONTACT: 

William F. Russo, Director, Regulations 

Management (00REG), Department of 

Veterans Affairs, 810 Vermont Avenue, 

NW., Washington, DC 20420, (202) 273– 

9515. (This is not a toll-free number.) 

SUPPLEMENTARY INFORMATION: The 

Secretary of Veterans Affairs has 

established an Office of Regulation 

Policy and Management (ORPM) to 

provide centralized management and 

coordination of VA’s rulemaking 

process. One of the major functions of 

this office is to oversee a Regulation 

Rewrite Project (the Project) to improve 

the clarity and consistency of existing 

VA regulations. The Project responds to 

a recommendation made in the October 

2001 ‘‘VA Claims Processing Task 

Force: Report to the Secretary of 

Veterans Affairs.’’ The Task Force 

recommended that the compensation 

and pension regulations be rewritten 

and reorganized in order to improve 

VA’s claims adjudication process. 

Therefore, the Project began its efforts 

by reviewing, reorganizing, and 

redrafting the content of the regulations 

in 38 CFR part 3 governing the 

compensation and pension program of 

the Veterans Benefits Administration. 

These regulations are among the most 

difficult VA regulations for readers to 

understand and apply. 

Once rewritten, the proposed 

regulations will be published in several 

portions for public review and 

comment. This is one such portion. It 

includes proposed rules regarding 

general evidence requirements, general 

effective dates for awards, revision of 

decisions, and protection of VA ratings. 

After review and consideration of public 

comments, final versions of these 

proposed regulations will ultimately be 

published in a new part 5 in 38 CFR. 

Outline 

Overview of New Part 5 Organization 

Overview of This Notice of Proposed 

Rulemaking 

Table Comparing Current Part 3 Rules with 

Proposed Part 5 Rules 

Content of Proposed Regulations 

General Evidence Requirements 

5.130 Submission of statements, 

evidence, or information affecting 

entitlement to benefits. 

5.13 Applications, claims, and exchange 

of evidence with Social Security 

Administration (SSA)—death benefits. 

5.132 Claims, statements, evidence, or 

information filed abroad; authentication 

of documents from foreign countries. 

5.133 Information VA may request from 

financial institutions. 

5.134 Will VA accept a signature by mark 

or thumbprint? 

5.135 Statements certified or under oath 

or affirmation. 

Evidence Requirements for Former 

Prisoners of War (POWs) 

5.140 Determining former prisoner of war 

status. 

5.141 Medical evidence for former 

prisoners’ of war compensation claims. 

General Effective Dates for Awards 

5.150 General effective dates for awards 

or increased benefits. 

5.151 Date of receipt. 

5.152 Effective dates based on change of 

law or VA issue. 

5.153 Effective date of awards based on 

receipt of evidence prior to end of appeal 

period. 

General Rules on Revision of Decisions 

5.160 Binding effect of VA decisions. 

5.161 Review of benefit claims decisions. 

5.162 Revision of decisions based on 

clear and unmistakable error (CUE). 

5.163 Revision of decisions based on 

difference of opinion. 

5.164 Effective dates for revision of 

decisions based on difference of opinion. 

5.165 Effective dates for reduction or 

discontinuance of awards based on error. 

5.166 New and material evidence based 

on service department records. 

General Rules on Protection or Reduction 

of Existing Ratings 

5.170 Calculation of 5-year, 10-year, and 

20-year protection periods. 

5.171 Protection of 5-year stabilized 

ratings. 

5.172 Protection of continuous 20-year 

ratings. 

5.173 Protection against reduction of 

disability ratings when revisions are 

made to the Schedule for Rating 

Disabilities. 

5.174 Protection of entitlement to benefits 

established before 1959. 

5.175 Protection or severance of service 

connection. 

5.176 Due process procedures for 

severing service connection or reducing 

or discontinuing compensation benefits. 

5.177 Effective dates for severing service 

connection or discontinuing or reducing 

benefit payments. 

Endnote Regarding Amendatory Language 

Paperwork Reduction Act 

Regulatory Flexibility Act 

Executive Order 12866 

Unfunded Mandates 

Catalog of Federal Domestic Assistance 

Numbers and Titles 

List of Subjects in 38 CFR Part 5 

Overview of New Part 5 Organization 

We plan to organize the part 5 

regulations so that most of the 

provisions governing a specific benefit 

are located in the same subpart, with 

general provisions pertaining to all 

compensation and pension benefits also 

grouped together. We believe this 

organization will enable claimants, 

beneficiaries, and their representatives, 

as well as VA personnel, to find 

information relating to a specific benefit 

more quickly than the organization 

provided in current part 3. 

The first major subdivision would be 

‘‘Subpart A—General Provisions.’’ It 

would include information regarding 

the scope of the regulations in new part 

5, general definitions, and general 

policy provisions for this part. This 

subpart was published as proposed on 

March 31, 2006. See 71 FR 16464. 

‘‘Subpart B—Service Requirements for 

Veterans’’ would include information 

regarding a veteran’s military service, 

including the minimum service 

requirement, types of service, periods of 


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war, and service evidence requirements. 

This subpart was published as proposed 

on January 30, 2004. See 69 FR 4820. 

‘‘Subpart C—Adjudicative Process, 

General’’ would inform readers about 

types of claims and filing procedures, 

VA’s duties, rights and responsibilities 

of claimants and beneficiaries, general 

evidence requirements, and effective 

dates for new awards, as well as 

revision of decisions and protection of 

VA ratings. This subpart will be 

published as three separate Notices of 

Proposed Rulemaking (NPRMs) due to 

its size. The first, concerning the duties 

of VA and the rights and responsibilities 

of claimants and beneficiaries, was 

published as proposed on May 10, 2005. 

See 70 FR 24680. The portion of this 

subpart covering general evidence 

requirements, effective dates for awards, 

revision of decisions, and protection of 

VA ratings is the subject of this 

document. 

‘‘Subpart D—Dependents and 

Survivors’’ would inform readers how 

VA determines whether an individual is 

a dependent or a survivor of a veteran. 

It would also provide the evidence 

requirements for these determinations. 

This subpart was published as proposed 

on September 20, 2006. See 71 FR 

55052. 

‘‘Subpart E—Claims for Service 

Connection and Disability 

Compensation’’ would define serviceconnected compensation, including 

direct and secondary service 

connection. This subpart would inform 

readers how VA determines entitlement 

to service connection. The subpart 

would also contain those provisions 

governing presumptions related to 

service connection, rating principles, 

and effective dates, as well as several 

special ratings. This subpart will be 

published as three separate NPRMs due 

to its size. The first, concerning 

presumptions related to service 

connection, was published as proposed 

on July 27, 2004. See 69 FR 44614. 

‘‘Subpart F—Nonservice-Connected 

Disability Pensions and Death 

Pensions’’ would include information 

regarding the three types of nonserviceconnected pension: Improved pension, 

Old-Law pension, and Section 306 

pension. This subpart would also 

include those provisions that state how 

to establish entitlement to Improved 

pension, and the effective dates 

governing each pension. This subpart 

would be published in two separate 

NPRMs due to its size. The portion 

concerning Old-Law pension, Section 

306 pension, and elections of Improved 

pension was published as proposed on 

December 27, 2004. See 69 FR 77578. 

‘‘Subpart G—Dependency and 

Indemnity Compensation, Death 

Compensation, Accrued Benefits, and 

Special Rules Applicable Upon Death of 

a Beneficiary,’’ would contain 

regulations governing claims for 

dependency and indemnity 

compensation (DIC); death 

compensation; accrued benefits; benefits 

awarded, but unpaid at death; and 

various special rules that apply to the 

disposition of VA benefits, or proceeds 

of VA benefits, when a beneficiary dies. 

This subpart would also include related 

definitions, effective-date rules, and 

rate-of-payment rules. This subpart was 

published as two separate NPRMs due 

to its size. The portion concerning 

accrued benefits, death compensation, 

special rules applicable upon the death 

of a beneficiary, and several effectivedate rules, was published as proposed 

on October 1, 2004. See 69 FR 59072. 

The portion concerning DIC benefits 

and general provisions relating to proof 

of death and service-connected cause of 

death was published as proposed on 

October 21, 2005. See 70 FR 61326. 

‘‘Subpart H—Special and Ancillary 

Benefits for Veterans, Dependents, and 

Survivors’’ would pertain to special and 

ancillary benefits available, including 

benefits for children with various birth 

defects. This subpart was published as 

proposed on March 9, 2007. See 72 FR 

10860. 

‘‘Subpart I—Benefits for Certain 

Filipino Veterans and Survivors’’ would 

pertain to the various benefits available 

to Filipino veterans and their survivors. 

This subpart was published as proposed 

on June 30, 2006. See 71 FR 37790. 

‘‘Subpart J—Burial Benefits’’ would 

pertain to burial allowances. 

‘‘Subpart K—Matters Affecting the 

Receipt of Benefits’’ would contain 

provisions regarding bars to benefits, 

forfeiture of benefits, and renouncement 

of benefits. This subpart was published 

as proposed on May 31, 2006. See 71 FR 

31056. 

‘‘Subpart L—Payments and 

Adjustments to Payments’’ would 

include general rate-setting rules, 

several adjustment and resumption 

regulations, and election-of-benefit 

rules. Because of its size, subpart L will 

be published in two separate NPRMs. 

The final subpart, ‘‘Subpart M—

Apportionments to Dependents and 

Payments to Fiduciaries and 

Incarcerated Beneficiaries,’’ would 

include regulations governing 

apportionments, benefits for 

incarcerated beneficiaries, and 

guardianship. 

Some of the regulations in this NPRM 

cross-reference other compensation and 

pension regulations. If those regulations 

have been published in this or earlier 

NPRMs for the Project, we cite the 

proposed part 5 section. We also 

include, in the relevant portion of the 

Supplementary Information, the Federal 

Register page where a proposed part 5 

section published in an earlier NPRM 

may be found. However, where a 

regulation proposed in this NPRM 

would cross-reference a proposed part 5 

regulation that has not yet been 

published, we cite to the current part 3 

regulation that deals with the same 

subject matter. The current part 3 

section we cite may differ from its 

eventual part 5 counterpart in some 

respects, but we believe this method 

will assist readers in understanding 

these proposed regulations where no 

part 5 counterpart has yet been 

published. If there is no part 3 

counterpart to a proposed part 5 

regulation that has not yet been 

published, we have inserted 

‘‘[regulation that will be published in a 

future Notice of Proposed Rulemaking]’’

where the part 5 regulation citation 

would be placed. 

Because of its large size, proposed 

part 5 will be published in a number of 

NPRMs, such as this one. VA will not 

adopt any portion of part 5 as final until 

all of the NPRMs have been published 

for public comment. 

In connection with this rulemaking, 

VA will accept comments relating to a 

prior rulemaking issued as a part of the 

Project, if the matter being commented 

on relates to both rulemakings. 

Overview of This Notice of Proposed 

Rulemaking 

This NPRM pertains to those 

regulations governing the following for 

purposes of compensation and pension 

benefits: (1) General evidence 

requirements; (2) general effective dates 

for awards; (3) revision of decisions; and 

(4) protection of existing ratings. These 

regulations would be contained in 

proposed Subpart C of new 38 CFR part 

5. Although these regulations have been 

substantially restructured and rewritten 

for greater clarity and ease of use, most 

of the basic concepts contained in these 

proposed regulations are the same as in 

their existing counterparts in 38 CFR 

part 3. However, a few substantive 

differences are proposed, along with 

some rules that do not have 

counterparts in 38 CFR part 3. 

Table Comparing Current Part 3 Rules 

With Proposed Part 5 Rules 

The following table shows the 

relationship between the current 

regulations in part 3 and those proposed 

regulations contained in this NPRM: 


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28772 Federal Register / Vol. 72, No. 98 / Tuesday, May 22, 2007 / Proposed Rules 

Proposed part 5 

section or 

paragraph 

Based in whole or in 

part on 38 CFR part 3 

section or paragraph 

(or ‘‘New’’) 

5.130(a) ..................... 3.217(a) and Note to 

3.217(a). 

5.130(b) ..................... 3.217(b). 

5.130(c)(1)(i) ............. 3.217(b)(1)(i). 

5.130(c)(1)(ii) ............. 3.217(b)(1)(ii). 

5.130(c)(1)(iii) ............ 3.217(b)(1)(iii). 

5.130(c)(2) ................. 3.217(b)(2). 

5.130(d) ..................... New. 

5.131(a) ..................... 3.153. 

5.131(b) ..................... 3.201(a). 

5.131(c) ..................... 3.201(b). 

5.132(a) ..................... 3.108. 

5.132(b) ..................... 3.202(a). 

5.132(c)(1) ................. 3.202(b)(1). 

5.132(c)(2) ................. 3.202(b)(2). 

5.132(c)(3) ................. 3.202(b)(3). 

5.132(c)(4) ................. 3.202(b)(6). 

5.132(c)(5) ................. 3.202(b)(4). 

5.132(d)(1) ................ 3.202(a) [first sentence] and 

3.202(a)(2). 

5.132(d)(2) ................ 3.202(a)(1). 

5.132(e) ..................... 3.202(c). 

5.133(a) ..................... 3.115(a). 

5.133(b) ..................... New. 

5.133(b)(1) ................ New. 

5.133(b)(2) ................ New. 

5.133(c)(1) ................. 3.115(b). 

5.133(c)(2) ................. 3.115(b). 

5.134 ......................... 3.2130. 

5.135 ......................... 3.200. 

5.140(a) ..................... 3.1(y)(1), (y)(3). 

5.140(b) ..................... 3.1(y)(2)(i). 

5.140(c) ..................... 3.1(y)(2)(ii). 

5.140(d) ..................... 3.1(y)(4). 

5.141(a) ..................... 3.304(c). 

5.141(b) ..................... New. 

5.141(c) ..................... 3.304(e). 

5.141(d) ..................... 3.304(e) [first sentence]. 

5.141(e) ..................... 3.304(e) [last two 

sentences]. 

5.141(f) ...................... 3.326(b). 

5.150(a) ..................... 3.400 [intro] and (a), 

3.400(h)(1), and 

3.400(q)(1)(ii). 

5.150(b) ..................... New. 

5.151 ......................... 3.1(r). 

5.152 ......................... 3.114. 

5.153 ......................... 3.156(b) and 

3.400(q)(1)(i). 

5.160(a) ..................... 3.104(a). 

5.160(b) ..................... 3.104(b). 

5.161 ......................... 3.2600. 

5.162(a) ..................... 3.105(a) first two sentences]. 

5.162(b) ..................... 3.105 [intro—first 

sentence] and 

3.105(a) [third and 

fourth sentences]. 

5.163 ......................... 3.105(b). 

5.164 ......................... 3.400(h)(1). 

5.165(a) ..................... 3.500(b). 

5.165(b) ..................... 3.500(b)(1). 

5.165(c) ..................... 3.500(b)(2). 

5.166 ......................... 3.156(c). 

5.170(a) ..................... 3.344, 3.951, and 

3.957. 

5.170(b) ..................... 3.951(b) and 3.957. 

5.170(c) ..................... New. 

5.170(d) ..................... New. 

Proposed part 5 

section or 

paragraph 

Based in whole or in 

part on 38 CFR part 3 

section or paragraph 

(or ‘‘New’’) 

5.170(e) ..................... New. 

5.171(a) ..................... 3.344(a). 

5.171(b) ..................... 3.344(c). 

5.171(c)(1) ................. 3.344(c). 

5.171(c)(2) ................. 3.344(a). 

5.171(d) ..................... 3.344(a). 

5.171(e) ..................... 3.344(b). 

5.172(a) ..................... 3.951(b) [first sentence]. 

5.172(b) ..................... 3.951(b) [second sentence]. 

5.172(c) ..................... New 

5.173(a) ..................... 3.951(a) and 3.952. 

5.173(b)(1) ................ 3.952. 

5.173(b)(2) ................ 3.952. 

5.173(b)(3) ................ 3.952. 

5.174(a) ..................... 3.953(a). 

5.174(b) ..................... 3.953(c). 

5.175(a)(1) ................ 3.957 [first sentence]. 

5.175(a)(2) ................ 3.957 [last sentence]. 

5.175(b)(1) ................ 3.105(d) [first two 

sentences]. 

5.175(b)(2) ................ 3.105(d) [third and 

fourth sentences]. 

5.176(a) and (b) ........ 3.105(d) [fifth and 

sixth sentences] 

and 3.105(e) [first 

two sentences]. 

5.176(c) ..................... 3.105(d) [last two 

sentences] and 

3.105(e) [last two 

sentences]. 

5.177(a) ..................... 3.105 [intro—last sentence]. 

5.177(b) ..................... 3.105 [intro—second 

sentence]. 

5.177(c) ..................... 3.105 [intro—first 

sentence] and 

3.500(b). 

5.177(d) ..................... 3.105(d). 

5.177(e) ..................... 3.105(c). 

5.177(f) ...................... 3.105(e). 

5.177(g) ..................... 3.105(f). 

5.177(h) ..................... 3.105(g). 

5.177(i) ...................... 3.105(h). 

Readers who use this table to compare 

existing regulatory provisions with the 

proposed provisions, and who observe a 

substantive difference between them, 

should consult the text that appears 

later in this document for an 

explanation of significant changes in 

each regulation. Not every paragraph of 

every current part 3 section regarding 

the subject matter of this rulemaking is 

accounted for in the table. In some 

instances, other portions of the part 3 

sections that are contained in these 

proposed regulations will appear in 

subparts of part 5 that are being 

published separately for public 

comment. For example, a reader might 

find a reference to paragraph (a) of a 

part 3 section in the table, but no 

reference to paragraph (b) of that section 

because paragraph (b) will be addressed 

in a separate NPRM. The table also does 

not include provisions from part 3 

regulations that will not be carried 

forward to part 5. Such provisions are 

discussed specifically under the 

appropriate part 5 heading in this 

preamble. Readers are invited to 

comment on the proposed part 5 

provisions and also on our proposals to 

omit those part 3 provisions from part 

5. 

Content of Proposed Regulations 

General Evidence Requirements 

Section 5.130 Submission of 

Statements, Evidence, or Information 

Affecting Entitlement to Benefits 

Proposed § 5.130 is derived from 

current § 3.217, VA’s regulation 

governing the submission of statements 

or information affecting entitlement to 

benefits. We propose explicitly to make 

this regulation applicable to ‘‘evidence’’

as well as statements and information. 

The current regulation does not 

explicitly apply to the submission of 

written evidence; however, in practice 

the principles therein do apply to the 

submission of written evidence, and 

there is no reason not to make the part 

5 regulation explicit in this regard. 

Proposed paragraph (a) addresses the 

methods by which beneficiaries may 

submit statements, evidence, or 

information affecting their entitlement 

to benefits. Acknowledging that certain 

VA regulations require that particular 

types of evidence or information be 

submitted in writing—e.g., Marriage 

(§ 5.192), Divorce (§ 5.194), and Birth 

(§ 5.229)—we propose to state that it is 

VA’s policy to accept electronic 

submissions unless another regulation, 

form, or directive expressly requires a 

different method of submission. 

Proposed paragraph (a) would state that 

this policy does not apply to the filing 

of a claim, Notice of Disagreement, 

Substantive Appeal, or any other 

submissions or filing requirements 

covered in parts 19 and 20 of this title. 

We propose not to include the 

introductory phrase, ‘‘For purposes of 

this part, unless specifically provided 

otherwise,’’ which is used in paragraph 

(b) of current § 3.217. Because proposed 

§ 5.0 specifically states that ‘‘[e]xcept as 

otherwise provided, this part applies 

only to benefits governed by this part,’’

it is no longer necessary to state that any 

rule in part 5 applies only for purposes 

of this part. 71 FR 16464, 16473. 

Therefore, in paragraph (b) of § 5.130, 

we propose to state, ‘‘Except as 

otherwise provided.’’ By so doing, we 

achieve our goal of greater readability 

without loss of clarity or substance. 

In § 5.130(c)(1), we propose to include 

a reference to the beneficiary’s 

authorized representative that is not 


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contained in current § 3.217(b)(1). 

Including the representative merely 

clarifies the established legal principle 

that the actions of an authorized 

representative are considered to be 

actions by the client beneficiary. 

Current § 3.217(b)(1)(iii) states that, 

when a beneficiary or fiduciary orally 

provides information or a statement that 

VA may use to adjust benefits, VA must 

inform him or her that ‘‘the information 

or statement will be used for the 

purpose of calculating benefit 

amounts.’’ In proposed § 5.130(c)(1)(iii), 

we use the word ‘‘may’’ instead of 

‘‘will.’’ This wording is more accurate 

because VA may determine that the 

information or statement needs to be 

verified through other means. It also 

makes this paragraph consistent with 

the first sentence in proposed paragraph 

(b), which states that, ‘‘VA may take 

action* * *’’ Similarly, we also propose 

to use the phrase ‘‘may be used’’ in 

§ 5.130(c)(2)(v) instead of ‘‘would be 

used’’ as stated in current § 3.217(b)(2). 

Finally, in proposed paragraph (d) we 

articulate the exceptions to the rule that 

VA cannot act on an oral statement 

unless VA has complied with 

paragraphs (c)(1) and (2). These 

exceptions, which apply to statements 

made at a hearing or to a physician, 

reflect current practice. Persons who 

appear at a hearing or who provide 

information to a physician, especially in 

connection with a VA medical 

examination, should expect that such 

information will be considered as part 

of their claim. Neither current § 3.217 

nor the proposed part 5 version of that 

rule preclude VA from relying on 

medical statements or statements made 

at a hearing. Moreover, there is no doubt 

as to the identity of the person making 

the statement in these two discrete 

situations. Finally, §§ 5.81, 5.82, and 

20.700 adequately regulate statements 

made at a hearing. 70 FR 24680, 24686–

87. 

Section 5.131 Applications, Claims, 

and Exchange of Evidence With Social 

Security Administration (SSA)—Death 

Benefits 

Proposed § 5.131(a) is derived from 

the first sentence of current § 3.153, 

which states that an application for 

death benefits filed with SSA on or after 

January 1, 1957, on a form jointly 

prescribed by VA and SSA, will be 

considered a claim for VA death 

benefits, and will be considered as 

received by VA as of the date SSA 

received it. 

Note that although current § 3.1(p) 

uses the terms ‘‘claim’’ and 

‘‘application’’ interchangeably, we 

propose to only use the term ‘‘claim’’ in 

part 5, for the sake of consistency, when 

referring to a formal or informal 

communication in writing requesting a 

determination of entitlement or 

evidencing a believe in entitlement to a 

benefit, as the term ‘‘claim’’ is defined 

in part 3. (A future NPRM will fully 

address the definition of ‘‘claim’’ for the 

purposes of part 5.) Thus, the term 

‘‘claim’’ would have the same meaning 

in Part 5 as it currently does in Part 3; 

no substantive change is intended. We 

propose to use the term ‘‘application’’

when referring to a certain form that a 

claimant must file to apply for benefits. 

This definition will be contained in 

§ 5.1 General Definitions. 

Current § 3.153 implements the 

statutory provision 38 U.S.C. 5105 that 

governs joint applications for SSA and 

dependency and indemnity 

compensation (DIC). The statute is 

applicable only to claims for chapter 13 

benefits, which means that it applies to 

claims for DIC. Current § 3.153 states 

that a claim on a joint form is to be 

treated as a claim for ‘‘death benefits.’’

However, under 38 U.S.C. 5101(b)(1), a 

claim for DIC must also be considered 

a claim for death pension and accrued 

benefits. Consequently, proposed 

§ 5.131(a) would parenthetically 

describe ‘‘VA death benefits’’ as ‘‘[DIC], 

death pension and accrued benefits.’’

We also propose to update the statutory 

authority citation by including a 

reference to 38 U.S.C. 5101(b)(1), as the 

authority for considering a joint 

application to be a claim for ‘‘death 

benefits’’ is not derived from 38 U.S.C. 

5105 alone. For the reasons set forth 

above, the inclusion of death pension 

and accrued benefits in the proposed 

regulation would not create a new basis 

of entitlement or result in a substantive 

right that does not exist within the 

current framework of the pertinent law 

or regulations. 

The second sentence of current 

§ 3.153 states that VA is not precluded 

by reason of having received a joint 

application from requesting necessary 

evidence. This language is unnecessary 

because nothing in any statute or 

regulation, including proposed § 5.131, 

precludes VA from requesting necessary 

evidence after we have received a claim 

for benefits. In addition, the sentence 

merely reiterates the last sentence of 38 

U.S.C. 5105(b), and there is no need to 

maintain a regulatory provision that 

merely recites a statutory provision. 

Proposed § 5.131(b) is derived in part 

from the second sentence of current 

§ 3.201(a), which pertains to the 

exchange of evidence between VA and 

SSA. The cited authority for this 

regulation includes 38 U.S.C. 5105, 

discussed above. Proposed § 5.131(b) 

does not incorporate the first sentence 

of current § 3.201(a), as it is unnecessary 

and redundant of proposed § 5.81, 

which explicitly states that ‘‘VA will 

include in the record of proceedings any 

information, evidence (whether 

documentary, testimonial, or in other 

form), and any argument that a claimant 

offers in support of a claim.’’ 70 FR 

24680, 24686. In addition, VA’s ‘‘duty to 

assist’’ regulation, 38 CFR 3.159(c)(2), 

requires VA to obtain relevant records 

from a federal department or agency, 

including records in custody of SSA. 

Moreover, SSA is required, pursuant to 

38 U.S.C. 5105(b), to forward to VA all 

information and supporting documents 

that it receives in conjunction with a 

joint application for DIC/SSA benefits. 

In light of the foregoing, it is not 

necessary to specify in § 5.131(b) that a 

claimant may submit evidence 

submitted to SSA, or to permit the 

claimant to request VA to obtain such 

evidence. We have also clarified that the 

rule, embodied in proposed § 5.131(b) 

and current § 3.201(a), regarding the 

deemed date of receipt for evidence 

filed at SSA applies only when the 

evidence was filed in conjunction with 

a claim for both SSA death benefits and 

VA death benefits. The clarification is to 

avoid a situation in which a final VA 

decision is subject to collateral attack 

based upon evidence filed with SSA in 

support of a claim for only SSA death 

benefits that predates a subsequent 

separate claim for VA death benefits. 

Proposed § 5.131(c) is derived from 

current § 3.201(b), which provides that 

when SSA requests evidence from VA 

that was submitted in support of a DIC 

application, VA will furnish it. 

However, current § 3.201(b) does not 

acknowledge the existence of laws, 

including the Health Insurance 

Portability and Accountability Act 

(HIPAA), that protect the confidentiality 

of various kinds of information or 

evidence that claimants or beneficiaries 

file with VA. For example, 38 U.S.C. 

7332 protects the confidentiality of all 

records containing the identity, 

diagnosis, prognosis, or treatment of any 

patient or subject maintained in 

connection with any program or activity 

carried out by or for VA and connected 

with drug abuse, alcoholism or alcohol 

abuse, infection with the human 

immunodeficiency virus, or sickle cell 

anemia. VA can only release such 

records when certain prerequisites are 

satisfied, and we do not interpret 

section 7332 as providing for an 

exemption for mandatory disclosures to 

SSA under this regulation or under its 

authorizing statute, 38 U.S.C. 5105(b). 

Also, 5 U.S.C. 552a contains general 


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procedures that all agencies must follow 

when determining whether to release 

records that they maintain on 

individuals. Therefore, we propose to 

add a sentence in proposed § 5.131(c) to 

clarify that any disclosure of evidence to 

the SSA under this paragraph must 

comply with all requirements of any 

applicable privacy or confidentiality 

laws, which would include HIPAA. 

Section 5.132 Claims, Statements, 

Evidence, or Information Filed Abroad; 

Authentication of Documents From 

Foreign Countries 

Proposed § 5.132 is derived from 

current § 3.202, VA’s regulation 

pertaining to the criteria for the 

acceptance of foreign evidence, and 

§ 3.108, which relates to occasions when 

the State Department functions as an 

agent of VA. We believe it is logical to 

consolidate into a single regulation the 

rule pertaining to filing claims or 

evidence in foreign countries with the 

rule pertaining to filing evidence from 

foreign sources. 

In paragraph (a) of § 5.132, we 

propose to include the provisions of 

current § 3.108, which recognize U.S. 

diplomatic and consular officers abroad 

as agents for the acceptance of VA 

applications or claims, or evidence in 

support of a claim pending with VA. We 

clarify that the rule applies to 

submissions of claims or of statements, 

evidence, or information in support of a 

claim. 

Current § 3.108 provides that 

diplomatic and consular officers may 

act as agents of VA, ‘‘and, therefore, a 

formal or informal claim or evidence 

submitted in support of a claim filed in 

a foreign country will be considered as 

filed in [VA] as of the date of receipt by 

the State Department representative.’’

We intend no substantive changes to 

this regulation by eliminating the term 

‘‘informal claim.’’ The term ‘‘claim’’

necessarily embraces all of the types of 

claims listed in the regulations, 

including informal and formal claims. 

Current § 3.108 uses the terms 

‘‘diplomatic and consular officers of the 

Department of State’’ and ‘‘the State 

Department representative,’’ to describe 

the officials who are authorized to 

receive claims and evidence. For 

purposes of § 5.132, we propose to 

simplify the description by substituting 

the inclusive term ‘‘Department of State 

representative.’’

Paragraph (b) of proposed § 5.132 

explains that the term ‘‘authentication’’

means that ‘‘an official listed in 

paragraph (d) of this section verifies that 

the foreign document, including each 

signature, stamp, and seal appearing on 

it, is genuine and has not been altered.’’

Paragraph (b) of proposed § 5.132 

explains that for the purposes of 

§ 5.132(b) the term ‘‘foreign documents’’

means documents that are signed under 

oath or affirmation in the presence of an 

official in a foreign country. This 

definition is derived from current 

§ 3.202(a). Examples of foreign 

documents are described in the 

proposed regulation in order to aid the 

reader. 

Paragraph (b) also directs the reader to 

a list (in paragraph (c)) of foreign 

documents that do not require 

authentication. 

Paragraph (c) of proposed § 5.132 

restates current § 3.202(b). In addition, 

proposed § 5.132(c)(3) contains a direct 

reference to § 2.3, which pertains to 

delegation of authority to employees to 

take affidavits, to administer oaths, etc. 

This reference is appropriate, as it bears 

directly on the subject matter contained 

in proposed § 5.132. Current 

§ 3.202(b)(4) states that authentication 

will not be required, ‘‘[w]hen a copy of 

a public or church record from any 

foreign country purports to establish 

birth, adoption, marriage, annulment, 

divorce, or death, provided it bears the 

signature and seal of the custodian of 

such record and there is no conflicting 

evidence in the file which would serve 

to create doubt as to the correctness of 

the record.’’ Paragraph (b)(5) states that 

authentication will not be required, 

‘‘[w]hen a copy of the public or church 

record from one of the countries 

comprising the United Kingdom, 

namely: England, Scotland, Wales, or 

Northern Ireland, purports to establish 

birth, marriage, or death, provided it 

bears the signature or seal or stamp of 

the custodian of such record and there 

is no evidence which would serve to 

create doubt as to the correctness of the 

records.’’ VA believes that maintaining 

a different rule for the United Kingdom 

is unnecessary because records 

maintenance in the United Kingdom is 

not necessarily superior to that of all 

other countries. Moreover, we believe 

that a single rule will be easier for VA 

personnel to correctly apply and for the 

public to understand. We therefore 

propose not to include an equivalent to 

§ 3.202(b)(5) in § 5.132. 

Paragraph (d) of proposed § 5.132 is 

derived from current § 3.202(a). Current 

§ 3.202(a) uses, among others, the terms 

‘‘United States Consular Officer,’’ ‘‘the 

State Department,’’ and ‘‘the nearest 

American consul,’’ to describe the 

various Department of State officials 

who may authenticate the signatures of 

officials of foreign countries in cases 

where affidavits or other documents are 

required to be executed under oath 

before foreign officials. For purposes of 

§ 5.132, we propose to simplify the 

description by substituting the inclusive 

term ‘‘officer of the Department of State 

authorized to authenticate documents.’’

We note that the Department of State 

has promulgated 22 CFR 131.1, which 

authorizes specially designated 

‘‘authentication officers’’ to issue 

certificates of authentication under the 

seal of the Department of State on behalf 

of the Secretary of State. That regulation 

also prescribes the proper form of 

authentication. A certificate of 

authentication therefore constitutes the 

State Department’s official 

acknowledgment that a document of 

foreign origin is genuine. 

Section 5.133 Information VA May 

Request From Financial Institutions 

Proposed § 5.133, derived from 

current § 3.115, will provide readers 

with clarification of the different types 

of information VA may request from a 

financial institution, the conditions 

under which a request may be made, the 

steps for making a request, and VA’s 

responsibilities with regard to the 

handling of this information once it is 

obtained. 

The first sentence of current § 3.115(a) 

reads: ‘‘The Secretary of Veterans 

Affairs may request from a financial 

institution the names and addresses of 

its customers.’’ As in several other 

proposed part 5 rules, this rule will refer 

to ‘‘VA’’ rather than ‘‘[t]he Secretary of 

Veterans Affairs’’ to shorten the 

reference without changing its meaning. 

Some readers may not have a clear 

understanding of what constitutes a 

‘‘financial institution,’’ a term that is 

used in the first sentence of current 

§ 3.115(a). Accordingly, we propose to 

add examples of various types of 

financial institutions. Examples include 

banks, savings and loan associations, 

trust companies, and credit unions. 

The current language of § 3.115 and 

the statutory provisions of 12 U.S.C. 

3413 explicitly authorize VA to obtain 

only names and addresses from a 

financial institution. However, VA also 

possesses statutory authority to 

subpoena financial information. 

According to the Right to Financial 

Privacy Act, ‘‘A government authority 

may obtain financial records * * * 

pursuant to an administrative subpoena 

or summons otherwise authorized by 

law if there is reason to believe that the 

records sought are relevant to a 

legitimate law enforcement inquiry.’’ 12 

U.S.C. 3405. ‘‘Government authority’’ is 

defined in this Act as ‘‘any agency or 

department of the United States, or any 

officer, employee, or agent thereof.’’ 12 

U.S.C. 3401(3). The Act also defines 

‘‘law enforcement inquiry’’ as ‘‘a lawful 


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investigation or official proceeding 

inquiring into a violation of, or failure 

to comply with, any * * * regulation, 

rule, or order issued pursuant thereto.’’

12 U.S.C. 3401(8). These provisions give 

VA the authority, under certain 

circumstances, to obtain financial 

information through a subpoena, 

provided it is necessary in order to 

determine whether an individual has 

violated any of the regulations on 

veterans’ benefits. Additionally, 38 

U.S.C. 5711(a)(2), authorizes the 

Secretary and employees to whom the 

Secretary has delegated such authority 

to ‘‘require the production of books, 

papers, documents, and other 

evidence.’’

For example, current §§ 3.660(a), 

3.256(a), and 3.277(b) require 

individuals claiming entitlement to or 

receiving income-based benefits from 

VA to promptly report changes in their 

income. If VA discovers that a current 

or former beneficiary may have reported 

a lower amount of income to VA than 

the financial institution reported to the 

Internal Revenue Service as having been 

paid to the beneficiary, VA will ask the 

individual to verify the amount 

received. If the individual refuses or 

fails to respond to VA’s request, VA has 

authority under 12 U.S.C. 3405 to 

subpoena from the financial institution 

a statement showing amounts it paid to 

the individual. 

Before issuing a subpoena to a 

financial institution, 12 U.S.C. 3405(2) 

requires VA to: (1) Send a copy of the 

subpoena to the current or former 

beneficiary; (2) inform the current or 

former beneficiary of the reason VA is 

requesting financial information from 

the financial institution; and (3) explain 

to the current or former beneficiary the 

procedures for challenging VA’s 

proposal to issue a subpoena. 

VA’s authority to issue subpoenas to 

financial institutions in order to verify 

the amount of income paid by a 

financial institution to a current or 

former VA beneficiary, as well as the 

circumstances under which they may be 

issued, are not addressed in part 3 of 

current 38 CFR. However, we believe 

this is an issue about which the public 

should be informed. For example, if VA 

discovers that a current or former 

beneficiary, while receiving either 

pension or parents’ dependency and 

indemnity compensation, may have 

underreported or failed to report to VA 

the receipt of income from a financial 

institution, VA may ask the financial 

institution that paid the income to 

provide a statement showing the 

amount it paid to the individual. We 

propose to clarify in § 5.133(b) that 

requests of this type must be made 

through a subpoena. To ensure readers 

understand the meaning of the word 

‘‘subpoena,’’ we propose to define it in 

paragraph (b). Our definition, which is 

‘‘a legal document commanding an 

individual or organization to provide 

specified evidence to the issuer of the 

subpoena,’’ is derived from the 2001 

edition of Merriam-Webster’s Dictionary 

of Law. 

The content of paragraph (c)(1) of 

proposed § 5.133 is derived from current 

§ 3.115(b), while the content of 

paragraph (c)(2) is derived from 12 

U.S.C. 3412(a), which was part of the 

Right to Financial Privacy Act of 1978. 

Although we have changed the language 

taken from these two sources in order to 

make the proposed rule easier to 

understand, we intend no change in the 

substance they convey. 

Section 5.134 Will VA accept a 

signature by mark or thumbprint? 

Proposed § 5.134 is derived from 

current § 3.2130. We are not proposing 

any changes to the current regulation. 

Rather, we will incorporate the language 

of current § 3.2130 at proposed § 5.134. 

Section 5.135 Statements Certified or 

Under Oath or Affirmation 

Proposed § 5.135 is based on current 

§ 3.200, which states, in pertinent part, 

‘‘All written testimony submitted by the 

claimant or in his or her behalf for the 

purpose of establishing a claim for 

service connection will be certified or 

under oath or affirmation.’’ Instead of 

referring to ‘‘written testimony’’ we 

propose to use the phrase, ‘‘[a]ny 

documentary evidence or written 

assertion of fact’’ which we believe is 

easier for readers to understand. We 

propose to give VA discretion to 

consider such a submission that is not 

certified or under oath or affirmation or 

to require certification, oath, or 

affirmation if considered necessary to 

establish the reliability of a material 

document. This would give VA 

discretion to consider documents which 

are considered reliable under the 

circumstances of a particular case. It 

would also give VA discretion to require 

certification, oath, or affirmation when 

a submission appears unreliable, which 

will help ensure program integrity. 

Whereas current § 3.200(b) is limited 

to claims for service connection, we 

propose to have § 5.135(b) apply to all 

claims within the scope of part 5. We 

believe that there is nothing unique 

about claims for service connection with 

respect to the reliability of evidence. We 

believe that the principles stated above 

should apply equally to all claims for 

compensation or pension benefits. 

Evidence Requirements for Former 

Prisoners of War (POWs) 

Section 5.140 Determining Former 

Prisoner of War Status 

Proposed § 5.140 contains rules 

relating to the evidentiary and 

adjudicative considerations in 

determining prisoner of war (POW) 

status. Proposed § 5.140 is derived from 

current § 3.1(y), which sets forth general 

principles applicable to establishing 

status as a POW, including definitions 

and certain evidentiary and adjudicative 

considerations. We have addressed the 

various definitions contained in current 

3.1(y) in a separate NPRM that restated 

such definitions in § 5.1 of proposed 

part 5. See 71 FR 16464, 16473. 

Additional principles establishing 

former POW status are found in § 3.41, 

which sets forth special rules applicable 

to former prisoners of war with 

Philippine service. These principles are 

also covered in a separate NPRM. See 71 

FR 37790, 37794. 

Paragraph (a) of proposed § 5.140 

restates the current rule that service 

department determinations of POW 

status are generally binding on VA, and 

states the criteria VA will use to decide 

POW status in all other cases. It also 

restates the requirement in current 

§ 3.1(y)(3) that the Director of the 

Compensation and Pension Service 

must approve all 152 office decisions 

based on criteria for determining former 

POW status other than service 

department findings. In order to 

recognize the modern dangers presented 

by non-government forces, we propose 

to expand the instances in which 

service department findings will be 

accepted. Whereas current § 3.1(y)(1) 

only accepts service department 

findings that a person was a POW 

during a period of war when detention 

or internment was by an enemy 

government or its agents, under 

paragraph (a) of proposed § 5.140, VA 

will also accept a finding by the service 

department that a person was a POW 

during a period of war when detention 

or internment was by a hostile force. 

Paragraphs (b), (c), and (d) of 

proposed § 5.140 restate the content of 

current § 3.1(y)(2)(i), (y)(2)(ii), and 

(y)(4), respectively. In paragraph (d), we 

propose to cross-reference § 5.660, 

pertaining to ‘‘line of duty’’ and derived 

from current §§ 3.1(m) and 3.301(a), and 

§ 5.661, pertaining to ‘‘willful 

misconduct’’ and derived from current 

§§ 3.1(n), 3.301(a) through (d), and 

3.302. See 71 FR 31056, 31062–63. 

At the end of the proposed rule, we 

propose to cross-reference proposed 

§ 5.611, which restates current § 3.41, 


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relating to POW status and Philippine 

service. See 71 FR 37790, 37795. 

Section 5.141 Medical Evidence for 

Former Prisoners’ of War Compensation 

Claims 

Proposed § 5.141 is based in part on 

those portions of current § 3.304, 

‘‘Direct service connection; wartime and 

peacetime,’’ that pertain to former 

POWs. Except as provided below, no 

substantive changes are intended to 

these provisions. Portions of current 

§ 3.304 have already been addressed in 

a prior NPRM, published as proposed 

on May 10, 2005. See 70 FR 24680. 

Other provisions of current § 3.304 will 

be addressed in a separate NPRM. 

Proposed paragraph (a) provides 

information regarding injuries and 

conditions claimed by a former POW 

that are obviously due to service. The 

paragraph states that VA will rate such 

injuries and conditions without 

awaiting receipt of service records. This 

paragraph is derived from the last 

sentence of current § 3.304(c) and is 

included to clarify how the general rule 

in proposed § 5.91, the part 5 version of 

current § 3.304(c), applies to conditions 

resulting from POW confinement. 

Proposed paragraph (b) provides that 

where disability compensation is 

claimed by a former POW, the 

claimant’s statements as to the 

incurrence or aggravation of an injury or 

disease during or immediately prior to 

detention or internment will be viewed 

as truthful unless there is clear and 

convincing evidence to the contrary. 

This is a substantive change based upon 

expanding current § 3.304(d). VA’s 

practice has been to treat statements by 

former POWs in the same manner as 

combat veterans for purposes of 38 

U.S.C. 1154(b) in order to recognize the 

deficiencies or complete absence of 

many former POWs’ service medical 

records showing evidence of diseases or 

injuries suffered during or immediately 

before detention or internment. This 

substantive change is consistent with 

current § 3.304(f)(2), pertaining to posttraumatic stress disorder claimed by a 

former prisoner of war. At the end of 

paragraph (b), we propose to add a 

reference to § 3.304(f)(2) to let the reader 

know the location of a similar provision 

regarding POWs. We cite to the current 

part 3 regulation because the proposed 

part 5 regulation that deals with the 

same subject matter has not yet been 

published. Current § 3.304(f)(2) may 

differ from its eventual part 5 

counterpart in some respects. 

Proposed paragraph (c) notes that 

supporting evidence from fellow service 

members that an injury or disease was 

incurred during confinement will be 

considered. This is not a substantive 

change from part 3 and does not provide 

a new benefit to former POWs. VA 

accepts ‘‘buddy statements’’ in all cases. 

We explicitly provide for such evidence 

here, and discuss how to evaluate that 

evidence, because such evidence is 

more frequently encountered in cases 

relating to POWs. 

Proposed paragraph (c) would require 

VA to consider statements from fellow 

service members submitted in 

connection with a former POW’s claim 

for benefits, regarding the former POW’s 

physical condition before capture, the 

circumstances surrounding the former 

POW’s internment, changes in the 

former POW’s physical condition 

following release from internment, or 

the existence of signs or symptoms of 

disability following the former POW’s 

release from internment. 

Paragraph (d) of proposed § 5.141 

provides that the lack of medical 

findings from clinical records made 

upon a former POW’s return to U.S. 

control will not be determinative of 

whether service connection is awarded 

for a particular disability. It is derived 

from the first sentence of current 

§ 3.304(e). 

Proposed paragraph (e) restates the 

second and third sentences of current 

§ 3.304(e). 

Finally, proposed paragraph (f) 

includes information from the second 

sentence of current § 3.326(b), which 

provides that VA will not deny 

monetary benefits unless the claimant 

has been offered a complete physical 

examination at a VA facility. Unlike 

current § 3.326(b), which states that the 

examination will be ‘‘conducted at a 

[VA] hospital or outpatient clinic,’’

proposed paragraph (f) does not specify 

the location of the examination to be 

provided because an examination may 

be provided by VA at one of a variety 

of VA medical facilities, or, in some 

instances, VA may provide an 

examination with a private contractor at 

a non-VA facility. ‘‘[M]edical 

examination’’ used in proposed 

paragraph (f), as opposed to ‘‘physical 

examination’’ used in current § 3.326(b), 

clarifies that the examination is not 

limited to examination for physical 

disorders but includes examination for 

mental disorders as well. 

General Effective Dates for Awards 

Section 5.150 General Effective Dates 

for Awards or Increased Benefits 

Proposed § 5.150 would restate 

without substantive change the 

introductory text and paragraph (a) of 

current § 3.400, which state: 

Except as otherwise provided, the effective 

date of an evaluation and award of pension, 

compensation or dependency and indemnity 

compensation based on an original claim, a 

claim reopened after final disallowance, or a 

claim for increase will be the date of receipt 

of the claim or the date entitlement arose, 

whichever is later. 

(a) Unless specifically provided. On 

basis of facts found. 

The exceptions to the general 

effective-date rule, which are currently 

contained in other provisions of 

§§ 3.400 through 3.405, would be 

contained in regulations located 

proximate to their respective benefit 

regulations. 

In paragraph (a) of § 5.150, we 

propose not to include the phrase ‘‘facts 

found’’ in current § 3.400(a). Instead, we 

will only use the phrase ‘‘date 

entitlement arose,’’ which appears in 

the introductory text of § 3.400. Section 

5110(a) of title 38, United States Code, 

on which the general effective date rule 

stated in § 3.400 is based, uses ‘‘facts 

found’’ and does not use the phrase 

‘‘date entitlement arose.’’ Nevertheless, 

the legislative history of 38 U.S.C. 

5110(a) and the regulatory history of 38 

CFR 3.400 both suggest that ‘‘facts 

found’’ and ‘‘date entitlement arose’’

mean the same thing. Both phrases are 

derived from Veterans Regulation No. 

2(a), promulgated by Exec. Order 6230 

(1933), which states that the effective 

date of an award of pension ‘‘shall be 

fixed in accordance with the facts 

found’’ except that no awards would be 

effective before the date of separation 

from service, date of death, date of the 

happening of the contingency upon 

which disability or death pension is 

allowed, or the date of receipt of the 

claim therefor, whichever is the later 

date. The various dates listed in the 

immediately preceding sentence, except 

for the date of receipt of the claim, are 

exceptions to the rule to assign the 

effective date in accordance with the 

facts found, and are themselves dates 

upon which entitlement to various 

kinds of benefits is predicated. For all 

practical purposes, these are the 

relevant ‘‘facts’’ upon which entitlement 

would be based. 

VA has consistently so construed 

Veterans Regulation No. 2(a), a fact 

made clear by an examination of the 

effective-date regulations VA issued 

after Veterans’ Regulation No. 2(a). 

These are as follows: VA Regulation 

(VAR) 1148 (concerning the assignment 

of effective dates for ratings made under 

VA’s 1945 Schedule for Rating 

Disabilities); VAR 1212 (effective date 

for awards of disability compensation); 

VAR 2574 (effective date of awards of 

death compensation or pension), and 


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VAR 2945 (effective date of payment of 

dependency and indemnity 

compensation). VA used the term ‘‘facts 

found’’ in only two of these regulations. 

VAR 2574 (Jan. 25, 1936) (which cites 

Veterans Regulation No. 2(a)), VAR 2945 

(Jan. 1, 1958) (which was changed from 

different language to mirror the 

language of what is now 38 U.S.C. 

5110(a)). Instead of using ‘‘facts found,’’

VA used phrases such as ‘‘date the 

evidence shows a compensable or 

pensionable degree of disability to have 

existed’’ and ‘‘date the evidence shows 

entitlement.’’ VAR 1148 (Jan. 25, 1936). 

In 1950, VAR 2574 was amended to 

state that the effective date for an award 

of death compensation or pension 

would be the date ‘‘of the veteran’s 

death, date of the happening of the 

contingency upon which death 

compensation or pension is allowed, or 

the date of receipt of [the] application 

therefor,’’ whichever is later. This 

general effective-date provision is very 

similar to that of Veterans Regulation 

No. 2(a) except that it is devoid of the 

phrase ‘‘fixed in accordance with the 

facts found.’’ Nevertheless, it conveys 

the same information. 

When Congress first consolidated the 

laws and regulations related to 

compensation and pension, the present 

version of what is now 38 U.S.C. 5110(a) 

first appeared in the statute. Public Law 

85–56, section 910(a), 71 Stat. 83, 119 

(1957). The purpose of this law was to 

incorporate existing law into a single 

act. According to the committee reports, 

Congress did not intend to make any 

substantive changes to the effective date 

provisions. See H.R. Rep. No. 85–279, at 

2, reprinted in 1957 U.S.C.C.A.N. 1214, 

1215 (1957); S. Rep. No. 85–332, at 2, 

reprinted in 1957 U.S.C.C.A.N. 1214, 

1241 (1957). This statute also repealed 

Veterans Regulation No. 2(a). Pub. L. 

No. 85–56, § 2202(129), 71 Stat. at 167. 

The committee reports stated that the 

law ‘‘would repeal those provisions of 

law * * * which are obsolete, executed, 

or restated in substance.’’ H.R. Rep. No. 

85–279, at 2, S. Rep. No. 85–322, at 2. 

Therefore, Public Law 85–56 was 

intended to restate the substance of the 

rule in Veterans Regulation No. 2(a), 

despite changing the language. 

Current § 3.400 uses ‘‘date entitlement 

arose’’ in the introductory text and uses 

‘‘facts found’’ in paragraph (a). These 

two phrases have been used 

interchangeably in the past, though 

neither has been defined. This also 

suggests that ‘‘facts found’’ and ‘‘date 

entitlement arose’’ mean the same thing. 

We believe that we should only use one 

phrase consistently throughout the part 

5 to eliminate any confusion over 

whether ‘‘facts found’’ means the same 

thing as ‘‘date entitlement arose’’ and to 

make the regulations more user-friendly. 

Therefore, we will use ‘‘date entitlement 

arose’’ in § 5.150. The proposed rule 

clarifies that the term ‘‘date entitlement 

arose’’ has the same meaning when used 

in other effective-date regulations 

throughout part 5. 

We also propose to define the phrase 

‘‘date entitlement arose’’ in paragraph 

(a)(2) of § 5.150 to make the rule easier 

to understand. As noted above, the 

phrase has never been defined in the 

statute or in the regulations. Proposed 

paragraph (a)(2) defines ‘‘date 

entitlement arose’’ as the date shown by 

the evidence to be the date that the 

claimant first met the requirements for 

the benefit awarded. This definition 

accurately expresses the intent of the 

relevant statutes cited above. 

We also propose to add a sentence to 

emphasize that VA will assume the 

‘‘date entitlement arose’’ was before the 

date VA received the claim for benefits 

unless the evidence indicates otherwise. 

We believe it is important to provide 

this guidance because in the majority of 

cases, claimants meet the requirements 

for a benefit before they apply for it. In 

such cases, the general rule mandates 

that the effective date be the date of 

receipt of the claim for that benefit, and 

not some later date. 

Proposed § 5.150(b) sets forth a chart 

that provides readers with the location 

of other effective-date provisions in part 

5, which are exceptions to the general 

effective date rule of proposed 

paragraph (a). The chart is intended 

solely for informational purposes. As 

proposed, the chart shows both already 

published and as yet unpublished Part 

5 sections. The unpublished sections are 

included as placeholders; many may 

change before publication. The Subpart 

B provisions were published as 

proposed on January 30, 2004. See 69 

FR 4820. 

Section 5.101(d) of Subpart C was 

published as proposed on May 10, 2005. 

See 70 FR 24680. Proposed §§ 5.152, 

5.153, 5.162(b), 5.164, 5.165, 5.166(c), 

(d), and 5.177 of Subpart C are 

contained in this document. 

The Subpart D provisions were 

published as proposed on September 20, 

2006. See 71 FR 55052. 

Sections 5.463 and 5.477 of Subpart F 

were published as proposed on 

December 27, 2004. See 69 FR 77578. 

Sections 5.567 to 5.572 of Subpart G 

were published as proposed on October 

1, 2004. See 69 FR 59072. A correction 

to proposed § 5.570 was published on 

October 21, 2004. See 69 FR 61914. 

Sections 5.524(c), 5.573, and 5.574 of 

Subpart G were published as proposed 

on October 21, 2005. See 70 FR 61326. 

The Subpart H provisions were 

published as proposed on March 9, 

2007. See 72 FR 10860. 

The Subpart I provisions were 

published as proposed on June 30, 2006. 

See 71 FR 37790. 

The Subpart K provisions were 

published as proposed on May 31, 2006. 

See 71 FR 31056. 

Section 5.151 Date of Receipt 

Current § 3.1(r) sets forth a definition 

of the phrase ‘‘date of receipt.’’ We 

propose to address that topic in a 

provision designated as § 5.151. 

Proposed paragraph (a) would broaden 

the concept in current § 3.1(r) to include 

‘‘documents’’ in addition to claims, 

information, and evidence. Although 

the language in the proposed Part 5 

counterparts of current §§ 3.108, 3.153, 

and 3.201 does not contain the phrase 

‘‘date of receipt,’’ proposed paragraph 

(a) would nevertheless retain the 

exceptions for these provisions that are 

contained in current § 3.1(r) because 

proposed paragraph (a) will refer to a 

concept rather than merely define the 

specific term ‘‘date of receipt.’’

Proposed paragraph (b) would 

incorporate provisions from current 

§ 3.1(r) authorizing VA to establish 

exceptions to the general rule when a 

natural or man-made disaster or similar 

event has caused disruption in the 

process through which VA ordinarily 

receives correspondence. The intended 

effect is to ensure that claimants and 

beneficiaries are not deprived of 

potential entitlement to benefits because 

of unexpected delays or impediments 

through no fault of their own. Section 

512(a) of 38 U.S.C., listed as statutory 

authority for proposed § 5.151, pertains 

to the Secretary’s ability to delegate 

authority to officials and employees to 

administer the laws and make decisions. 

The citation to 38 U.S.C. § 512(a) is used 

to justify empowering employees and 

officials to establish procedures in 

emergency circumstances. Although 

current § 3.1(r) makes a delegation to the 

Under Secretary for Benefits, the cited 

statute does not limit delegation to the 

Under Secretary for Benefits. 

Accordingly, proposed paragraph (b) 

does not contain that limitation. 

Section 5.152 Effective Dates Based on 

Change of Law or VA Issue 

We propose to re-state current § 3.114 

in § 5.152. The heading for paragraph (b) 

of proposed § 5.152, ‘‘Reduction or 

discontinuance of benefits’’ differs from 

the heading of current § 3.114(b), 

‘‘Discontinuance of benefits,’’ in order 

to describe more accurately the content 

of the paragraph, which addresses both 

reductions of benefits and 


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discontinuances of benefits. Current 

§ 3.114(b) states that a claimant has 60 

days from the date of the notice of a 

proposed reduction or discontinuance 

of benefits in which to submit evidence 

showing the proposed action should not 

be taken. The last sentence of current 

§ 3.114(b) states that 

[i]f additional evidence is not received 

within that period, the award will be reduced 

or discontinued effective the last day of the 

month in which the 60-day period expired. 

We propose to clarify in § 5.152(b) 

that if no evidence is received within 60 

days, or if evidence is received that does 

not demonstrate that the proposed 

action should not be taken, the award 

will be reduced or discontinued 

effective the last day of the month in 

which the 60-day period expired. 

Another change has to do with the use 

of the term ‘‘facts found’’ used in 

current § 3.114 and in 38 U.S.C. 5110(g). 

As noted in the discussion of proposed 

§ 5.150, VA interprets ‘‘facts found’’ and 

another phrase used in effective date 

rules, ‘‘date entitlement arose,’’ to have 

the same basic meaning. We are 

proposing to use only one of these terms 

in § 5.152, ‘‘date entitlement arose,’’ to 

be consistent. 

Section 5.153 Effective Date of Awards 

Based on Receipt of Evidence Prior to 

End of Appeal Period 

We propose to revise current 

§§ 3.156(b) and 3.400(q)(1)(i) in order to 

establish clearer rules regarding the 

effective dates for awards based on the 

types of evidence described in current 

§ 3.156(b). 

Section 3.156(b) reads as follows: 

New and material evidence received prior 

to the expiration of the appeal period, or 

prior to the appellate decision if a timely 

appeal has been filed (including evidence 

received prior to an appellate decision and 

referred to the agency of original jurisdiction 

by the Board of Veterans Appeals without 

consideration in that decision in accordance 

with the provisions of § 20.1304(b)(1) of this 

chapter), will be considered as having been 

filed in connection with the claim which was 

pending at the beginning of the appeal 

period. 

Although the words ‘‘effective date’’

do not appear in current § 3.156(b), the 

substantive effect of the paragraph is to 

establish an appropriate effective date, 

in tandem with § 3.400(q)(1)(i). 

Section 3.400(q)(1)(i) provides that 

the effective date for a claim reopened 

based on new and material evidence 

‘‘[o]ther than service department 

records’’ that are ‘‘[r]eceived within 

[the] appeal period or prior to appellate 

decision * * * will be as though the 

former decision had not been rendered.’’

Under 38 U.S.C. 5110(a), the effective 

date for an award based on an original 

claim or a claim reopened after final 

adjudication (except as otherwise 

provided) ‘‘shall be fixed in accordance 

with the facts found, but shall not be 

earlier than the date of receipt of 

application therefore.’’ Therefore, if the 

claim is not ‘‘finally’’ decided when VA 

receives additional evidence, that is, if 

the evidence is submitted within the 

appeal period or before an appellate 

decision is rendered, then the effective 

date of the award can be as early as the 

date VA received the ‘‘open’’ claim. 

However, if VA were to treat all 

evidence submitted after the appeal 

period has begun as ‘‘new and material 

evidence,’’ then the effective date could 

not be earlier than the date VA received 

that evidence (which would be 

construed as a claim to reopen). Hence, 

38 CFR 3.156(b) and 3.400(q)(1)(i) 

provide a claimant-friendly effectivedate rule for awards based on evidence 

received while a claim is on appeal or 

before the appeal period expires. This 

interpretation is consistent with 38 

U.S.C. 7105(c), which provides that a 

regional office denial is ‘‘final’’ when 

the time limit for initiating an appeal to 

the Board of Veterans’ Appeals has 

expired and no appeal has been filed. 

The proposed text is also consistent 

with the Federal Circuit’s decision in 

Jackson v. Nicholson, 449 F.3d 1204 

(Fed. Cir. 2006), which held that current 

§ 3.156(b) does not refer to evidence 

received by VA after a Board decision 

has been issued. 

Proposed § 5.153 retains this favorable 

interpretation, but does rephrase the 

rule. The current regulation can be read 

to suggest that new and material 

evidence is needed while the claim is 

still ‘‘open.’’ However, in such cases 

there is no claim to ‘‘reopen’’ because 

the claim has not been ‘‘closed’’ (that is, 

the claimant could still prevail on that 

claim). 

General Rules on Revision of Decisions 

Section 5.160 Binding Effect of VA 

Decisions 

Proposed § 5.160 is derived from 

current § 3.104, and is intended to 

clarify when a decision rendered by a 

decision maker in a VA agency of 

original jurisdiction is binding on other 

VA agencies of original jurisdiction. The 

current version provides that decisions 

of a VA agency of original jurisdiction, 

shall be final and binding on all field offices 

of [VA] as to conclusions based on the 

evidence on file at the time VA issues written 

notification in accordance with 38 U.S.C. 

5104. A final and binding agency decision 

shall not be subject to revision on the same 

factual basis except by duly constituted 

appellate authorities or except as provided in 

§ 3.105 and § 3.2600 of this part. 

38 CFR 3.104(a) (emphasis added). 

We propose to repeat the language of 

§ 3.104(a) in proposed § 5.160(a) 

without any substantive change. 

However, we will not repeat the word 

‘‘final’’ in § 3.104(a) in proposed 

§ 5.160(a). We believe that use of the 

word ‘‘final’’ in this context may cause 

confusion because the word ‘‘final’’ is 

used elsewhere in VA’s regulations to 

refer only to agency of original 

jurisdiction decisions that have not been 

appealed within the time limits 

prescribed by statute and regulation for 

their appeal. See, e.g., 38 CFR 20.302(a) 

(if Notice of Disagreement not filed 

within 1 year of notice of agency of 

original jurisdiction decision, that 

decision shall become ‘‘final’’). Further, 

in 38 CFR 3.160(d), VA defines a 

‘‘finally adjudicated claim’’ as one that 

‘‘has been allowed or disallowed by the 

agency of original jurisdiction, the 

action having become final by the 

expiration of 1 year after the date of 

notice of an award or disallowance, or 

by denial on appellate review, 

whichever is the earlier.’’ This suggests 

that an agency of original jurisdiction 

decision might be simultaneously 

‘‘final,’’ in the sense implied by 

§ 3.104(a), on the date notice of the 

decision is given, and ‘‘non-final,’’ in 

the sense implied by § 3.160(d), because 

the time within which to appeal the 

decision has not yet expired. 

In Majeed v. Principi, 16 Vet. App. 

421, 427–28 (2002), the United States 

Court of Appeals for Veterans Claims 

(CAVC) rejected the argument that the 

phrase ‘‘final and binding’’ in § 3.104(a) 

means that a decision is final and 

binding as of the date issued because it 

could be seen to be at odds with the 

availability of an administrative appeal. 

VA does not intend that the term ‘‘’final 

and binding’’ preclude an 

administrative appeal. In fact, other VA 

regulations specifically provide for 

review of an agency of original 

jurisdiction decision that has not 

become final for purposes of appeal. For 

example, pursuant to 38 CFR 3.2600, a 

claimant may seek review of an agency 

of original jurisdiction decision by a 

Veterans Service Center Manager or 

Decision Review Officer after filing a 

Notice of Disagreement. Also, pursuant 

to 38 CFR 3.105(b), if revision of an 

agency of original jurisdiction decision 

is warranted as a result of a difference 

of opinion, an agency of original 

jurisdiction may recommend to VA 

Central Office that the decision be 

reversed or revised. 

VA therefore intends to clarify in this 

rulemaking that an agency of original 


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jurisdiction decision is ‘‘binding’’ on the 

same or another agency of original 

jurisdiction on the same factual basis, 

barring a change in law, except under 

the circumstances enumerated in 

current § 3.104(a). Further, we have 

changed the cross-references in current 

§ 3.104(a) to §§ 3.105 and 3.2600 to 

match their part 5 counterparts. 

Paragraph (b) of § 3.104 currently 

provides that decisions made by an 

agency of original jurisdiction and VA 

Insurance Service adjudicators, which 

are ‘‘made in accordance with existing 

instructions,’’ concerning character of 

service, character of discharge, 

relationship issues, and other matters, 

are reciprocally binding when they are 

based on the same criteria. VA proposes 

not to include the phrase ‘‘made in 

accordance with existing instructions’’

from this paragraph because the 

instructions to which it refers are 

contained in VA procedural manuals 

rather than regulations in title 38, Code 

of Federal Regulations. The deletion of 

this phrase does not imply that VA is 

not required to follow the laws and 

regulations pertaining to the making of 

determinations of the type described in 

paragraph (b). It merely reflects a 

judgment that references to internal 

procedural manuals and other VAgenerated documents that lack the force 

and effect of law are not appropriate for 

inclusion in the regulations. 

Finally, we propose to replace the 

terms ‘‘adjudication activity’’ and 

‘‘insurance activity’’ contained in 

§ 3.104(b) with ‘‘Veterans Service 

Center’’ and ‘‘VA Insurance Center,’’

respectively; again, because these are 

the more precise modern designations of 

the relevant entities. These proposed 

changes would simply modify the 

terminology to make it easier for the 

public to understand. 

Section 5.161 Review of Benefit Claims 

Decisions 

We propose to repeat the language of 

§ 3.2600 in proposed § 5.161 without 

any substantive change. We have only 

changed the cross-references in current 

§ 3.2600 to §§ 3.103 and 3.105 to match 

their part 5 counterparts. 

Section 5.162 Revision of Decisions 

Based on Clear and Unmistakable Error 

(CUE) 

In § 5.162, we propose to state clearly 

that VA adjudicative agency decisions 

that are final will be presumed correct 

unless there is a showing of clear and 

unmistakable error (CUE). In addition, 

this section will state the effective date 

for awards resulting from the revision or 

reversal, based on a finding of clear and 

unmistakable error, of prior final 

decisions. 

Proposed § 5.162 will not deviate in 

scope from the body of law that 

precedes it. Consequently, § 5.162 

provides that, absent CUE, prior final 

decisions are accepted as correct. The 

requirement of a showing of CUE 

applies only to a ‘‘final decision,’’ as 

defined by proposed § 5.2 to mean ‘‘a 

decision on a claim for VA benefits with 

respect to which VA provided the 

claimant with written notice’’ and the 

claimant either did not file a timely 

Notice of Disagreement or Substantive 

Appeal or the Board has issued a final 

decision on the claim. See 71 FR 16464, 

16473–74 (March 31, 2006). We also 

proposed to incorporate 38 U.S.C. 

5109A(c) and (d), which state that a 

CUE claim may be instituted by VA or 

upon request of the claimant and that a 

CUE claim may be made at any time 

after a final decision is made. 

We propose not to include the 

examples of determinations contained 

in the first sentence of current § 3.105(a) 

(‘‘decisions of service connection, 

degree of disability, age, marriage, 

relationship, service, dependency, line 

of duty, and other issues’’). Because the 

examples conclude with ‘‘* * * and 

other issues,’’ they would include any 

determination. Likewise, the proposed 

rule applies to any determination. By 

eliminating the examples, we intend to 

emphasize that the rule applies to any 

determination and avoid a 

misperception that the examples are a 

limitation on the rule. 

Section 5.163 Revision of Decisions 

Based on Difference of Opinion 

Current § 3.105(b) provides that where 

an agency of original jurisdiction 

believes that revising or amending a 

previous decision is warranted, based 

on a difference of opinion, a 

recommendation will be made to VA 

Central Office to authorize a change in 

the decision. We have used the term 

‘‘Director of the Compensation and 

Pension Service’’ instead of ‘‘[VA] 

Central Office’’ and used the term 

‘‘Veterans Service Center Manager 

(VSCM)’’ instead of ‘‘adjudicative 

agency’’ to accurately reflect longstanding VA practices. Additionally, we 

propose to state that this section 

authorizes revisions only when they 

would lead to a more favorable decision 

on the claim that was the subject of a 

prior decision, and that this section 

does not apply to a prior decision that 

is final or has been the subject of a 

Substantive Appeal. 

Section 5.164 Effective Dates for 

Revision of Decisions Based on 

Difference of Opinion 

We propose in § 5.164 to state VA’s 

effective-date provision applicable to 

revisions of decisions based on 

difference of opinion. Proposed § 5.164 

provides that the effective date of the 

revision would be the date benefits 

would have been paid if the previous 

decision had been favorable. 

Section 5.165 Effective Dates for 

Reduction or Discontinuance of Awards 

Based on Error 

Paragraphs (a), (b), and (c)(1) of 

proposed § 5.165 are derived from 

current § 3.500(b)(1) and (2), which 

govern the effective dates of reductions 

or discontinuances of awards of 

compensation, DIC, or pension based on 

error. In paragraph (a), we propose to 

exclude from § 5.165 payment amounts 

that are not authorized by a VA rating 

decision, such as a payment of an 

incorrect amount or a duplicative 

payment. Proposed § 5.165 applies only 

to reductions or discontinuances of 

erroneous awards. If a payment has not 

been authorized by a rating decision, 

then VA has not made an award of such 

an erroneous payment and therefore 

recovery of that payment is not a 

reduction or discontinuance of an 

‘‘erroneous award’’ under 38 U.S.C. 

5112(b)(9) or (10). We would add in 

paragraph (a) that ‘‘[s]uch amounts are 

overpayments, subject to recoupment.’’

We propose to rewrite the current 

language of § 3.500(b) to enhance its 

readability. We also propose not to 

include the word ‘‘payee’’ and insert in 

its place the term ‘‘beneficiary.’’ The 

term ‘‘beneficiary’’ is consistent with 

the phrasing of the authorizing statute, 

38 U.S.C. 5112(b)(9). 

In paragraph (c)(2), we propose to add 

a new definitional section that will 

clearly define ‘‘administrative error’’

and ‘‘error in judgment.’’ This definition 

will clearly show when these terms are 

applicable and will be consistent with 

precedential opinions prepared by VA’s 

General Counsel. VAOPGCPRECs 2–90 

(March 20, 1990) and 6–97 (January 18, 

1997) held that an administrative error 

includes an error of fact (for example, 

VA mistakes or overlooks the facts or 

commits a purely clerical error) and that 

an error in judgment includes those 

instances when VA fails to properly 

interpret, understand, or follow 

Department instructions, regulations, or 

statutes. The proposed definitional 

section will assist the users of the 

regulation in determining under what 

circumstances VA may have committed 


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administrative error or an error in 

judgment. 

Section 5.166 New and Material 

Evidence Based on Service Department 

Records 

Current § 3.156(c) addresses those 

situations when a prior final decision is 

being reconsidered based on the official 

service department records. We repeat 

that language in proposed § 5.166. 

General Rules on Protection or 

Reduction of Existing Ratings 

Currently, the rules that protect 

existing VA disability ratings from 

either reduction or severance are located 

in several different subparts within part 

3 of title 38, CFR. For example, most of 

the substantive rules on the subject (38 

CFR 3.951 et seq.) are located under the 

undesignated part 3 subheading, 

‘‘Protections;’’ however, substantive 

rules relevant to severance of service 

connection, as well as unique 

procedural provisions, are also located 

in current 38 CFR 3.105. Meanwhile, 

lesser protections afforded to stable 

ratings are located in § 3.344. 

We therefore propose to reorganize 

these rules under the undesignated 

subheading, ‘‘General Rules on 

Protection or Reduction of Existing 

Ratings,’’ in part 5 of title 38, CFR. This 

reorganization will contain the general 

rules that relate to the protection of 

existing ratings, which are found in 

current 38 CFR 3.105. It will also 

include those rules pertaining to the 

protection of the following ratings: 

Those that have stabilized, those in 

existence for a 20-year period, those 

based on the 1925 Schedule of Rating 

Disabilities, those in effect on December 

31, 1958, and those in effect for a 10- 

year period. These are derived from 

current §§ 3.344, 3.951 through 3.953, 

and 3.957, respectively. 

This reorganized portion does not 

include current § 3.950, the rule relating 

to the awards of pension or 

compensation to a helpless child, 

because this rule does not protect an 

existing rating. It also does not include 

current § 3.954, the rule relating to 

awards of burial benefits, which will be 

addressed in another NPRM. The part 5 

rule relating to federal employees’

compensation cases, current § 3.958, 

will be located with the proposed 

regulations regarding concurrent 

receipt; the rule relating to tuberculosis 

(current § 3.959) will be located with the 

regulations regarding tuberculosis; and 

the rule relating to Section 306 and OldLaw pension protection (current § 3.960) 

is located with the regulations regarding 

pension. 

Section 5.170 Calculation of 5-Year, 

10-Year, and 20-Year Protection Periods 

Current § 3.344 provides that ‘‘ratings 

which have continued for long periods 

at the same level (5 years or more)’’

cannot be reduced absent a 

reexamination ‘‘disclosing 

improvement, physical or mental, in 

these disabilities.’’ We propose in 

§ 5.170 to set forth general provisions 

governing how VA determines whether 

a rating has been continuously in place 

for the 5-year period currently found in 

§ 3.344. This rule also sets forth those 

provisions that apply to determining 

whether a 20-year period has been 

continuous, such that a rating is 

protected under the part 5 equivalent of 

38 CFR 3.951(b). Additionally, proposed 

§ 5.170 determines how to calculate 

whether service connection has been in 

effect for 10 years and is, therefore, 

protected under the part 5 equivalent of 

38 CFR 3.957. It is preferable to state the 

general rules applicable to calculating 

these periods in one regulation rather 

than repeat the concepts in multiple 

regulations. 

Proposed paragraph (b) states the 

general rule that the described periods 

begin on the effective date of the 

protected award or rating and end on 

the date that service connection would 

be severed or the rating reduced. This 

provision takes into account any 

applicable due process provisions 

contained in current § 3.105 and 

proposed § 5.176. The method of 

measuring the duration of a rating is 

explicit in current §§ 3.951 and 3.957; 

but it is not explicit in § 3.344. 

However, the implicit measurement 

method in § 3.344 is consistent with 

VA’s current practice and policy, and 

with the interpretation of current 

§ 3.344(c) set forth in Brown v. Brown, 

5 Vet. App. 413 (1993). In that case, the 

Court held: ‘‘[T]he duration of a rating 

for purposes of § 3.344(c) must be 

measured from the effective date 

assigned that rating until the effective 

date of the actual reduction. * * * 

[T]hose results flow from the plain and 

unambiguous language of the 

regulation.’’ Brown, 5 Vet. App. at 418–

419. We believe that making the 

effective-date-measurement rule 

explicitly applicable to the 5-year 

protection against reduction set forth in 

§ 3.344, as it is in current §§ 3.951 and 

3.957, will help clarify VA’s practice on 

this issue. 

The requirement that the 20-year 

protection period be continuous is set 

forth in 38 U.S.C. 110, which protects 

certain ratings that have been 

‘‘continuously in force for twenty or 

more years.’’ Therefore, proposed 

paragraph (c) states that ‘‘a rating is not 

continuous if benefits based on that 

rating are discontinued or interrupted 

because the veteran reentered active 

service.’’ See VAOGCPREC 5–95 

(holding that a rating discontinued 

based on reentry into service was not 

continuous for 20 years for purposes of 

section 110). 

We believe that the holding of 

VAOGCPREC 5–95 logically should 

apply to the continuity requirement for 

the 5-year protection set forth in current 

§ 3.344(c). Explicitly stating this rule in 

proposed § 5.170(c) will promote 

consistency in decision making by VA 

staff. 

The rule of 5.170(c) regarding re-entry 

into active service does not apply to 

break the 10-year period of proposed 

§ 5.175 for protection of service 

connection. Under current § 3.654(b), 

the prior determination ‘‘of service 

connection is not disturbed’’ because of 

the re-entry into active service. Because 

service connection remains in effect, the 

period of continuity is not broken. 

Proposed paragraph (d) states that a 

rating period may be protected without 

regard to whether the beneficiary 

actually received VA compensation 

based on that rating. This is based on 

current VA policy. We note that this 

rule is intended to apply to all 

adjustments, except for reentry of active 

service, including a beneficiary whose 

payments were adjusted by deduction, 

recoupment, apportionment, reduction 

in compensation due to incarceration, 

and a beneficiary who elected to receive 

retirement pay. These common 

examples are listed in proposed 

paragraph (d). 

Proposed paragraph (e) extends the 

protections found in current §§ 3.344, 

3.951, and 3.957 to retroactive increases 

in rating or grants of service connection, 

including those awarded based on clear 

and unmistakable error (CUE) under 

current § 3.105(a)/proposed § 5.162. In 

addition, the rule clearly states that it 

applies to any protection period even if 

it includes a period based on a 

retroactive award. The extension to 

retroactive awards is not a new VA 

practice. First, as to retroactive awards 

not based on a finding of CUE, the 

practice is well-established, even as to 

current § 3.344. See, e.g., Brown v. 

Brown, 5 Vet. App. 413, 417 (1993). The 

application of the retroactive protection 

to the 20-year period in cases based on 

findings of CUE is required by 38 U.S.C. 

110. See VAOGCPREC 68–91 (citing 

H.R. Rep. No. 533, 83rd Cong., 1st Sess. 

2 (1953); Pub. L. No. 88–445, 78 Stat. 

464 (1964); and VAOGCPREC 16–89). 

The legislative intent behind applying a 

retroactive award to form the 20-year 


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protection should apply as well to the 

regulatory 5-year protection because the 

purpose of § 3.344 is similar to the 

purpose of § 110 in that both protections 

support the economic and humane 

considerations noted above. Finally, the 

proposed regulation provides explicit 

protection to veterans, and is in keeping 

with our consistent treatment of the 

three time periods set forth in current 

§§ 3.344, 3.951, and 3.957 in other 

respects, as described in the other 

paragraphs in this proposed rule. 

Section 5.171 Protection of 5-Year 

Stabilized Ratings 

Proposed § 5.171 is derived from 

current § 3.344. Proposed paragraph (a) 

restates in plain language the first 

sentence of current § 3.344(a). Proposed 

paragraph (b) is primarily derived from 

the first sentence of current § 3.344(c), 

which states: ‘‘The provisions of 

paragraphs (a) and (b) of this section 

apply to ratings which have continued 

for long periods at the same level (5 

years or more).’’ Proposed paragraph (b) 

rephrases the current rule, as follows: 

‘‘For the purposes of this section, if a 

disability has been rated at or above a 

specific level for 5 years or more, VA 

will consider it to be stabilized at that 

specific level.’’ No substantive change is 

intended. 

Proposed paragraph (c) states two 

criteria that must be present before we 

will reduce a stabilized rating. The first 

criterion is stated in proposed paragraph 

(c)(1), and requires that there be ‘‘[a]n 

examination [that] shows sustainable 

material improvement, * * * in the 

disability.’’ The requirement of 

‘‘material improvement’’ is based on the 

third sentence of current § 3.344(c), 

which states, ‘‘[r]eexaminations 

disclosing improvement, physical or 

mental, in these disabilities will warrant 

reduction in rating.’’ We propose to 

change ‘‘improvement’’ to ‘‘material 

improvement.’’ ‘‘Material improvement’’

is what is intended in current § 3.344(c), 

as evidenced by the use of the term 

‘‘material improvement’’ in paragraph 

(a) of the current regulation. Finally, 

‘‘material improvement’’ is the standard 

used to measure a protected or 

stabilized rating in other similar 

regulations. See 38 CFR 3.327(b)(2)(ii) 

(disability will not be subject to 

scheduled reexamination ‘‘[w]hen the 

findings and symptoms are shown by 

examinations * * * and hospital 

reports to have persisted without 

material improvement for a period of 5 

years or more’’); 38 CFR 3.343(a) 

(‘‘[t]otal disability ratings * * * will not 

be reduced * * *. without examination 

showing material improvement in 

physical or mental condition’’). 

Proposed paragraph (c)(2) states the 

second criterion that must be present 

before VA will reduce a stabilized 

rating, which is that ‘‘[t]he evidence 

shows that it is reasonably certain that 

the material improvement will be 

maintained under the ordinary 

conditions of life.’’ This requirement is 

drawn directly from the seventh 

sentence of current § 3.344(a). 

We propose not to retain the secondto-last sentence of current § 3.344(c), 

which states: ‘‘[The provisions of this 

rule] do not apply to disabilities which 

have not become stabilized and are 

likely to improve.’’ Proposed paragraph 

(c) clearly states that this rule applies to 

the reduction of stabilized ratings. The 

term ‘‘stabilized ratings’’ is clearly 

defined in proposed paragraph (b), and 

does ‘‘not apply to disabilities which 

have not become stabilized.’’ Therefore, 

the second-to-last sentence of current 

§ 3.344(c) is unnecessary. 

Proposed paragraph (d) is derived 

from current § 3.344(a). In the current 

regulation, paragraph (a) contains ten 

sentences, nine of which articulate 

specific and distinct adjudicative rules. 

Three of these sentences also contain 

lists of various disabilities that are 

affected by the specific rule articulated 

in the sentence. Current paragraph (a) 

does not organize those ten sentences 

either by associating similar concepts or 

by setting the rules out in numbered 

paragraphs. We apply both of these 

organizational tools in the proposed 

rule, in order to improve readability and 

help users locate the parts of the 

paragraph that apply to their particular 

cases. 

In essence, § 3.344(a) lists and 

describes the evidence required by VA 

to justify the reduction of a stabilized 

rating. Hence, we propose to title the 

paragraph that restates most of the rules 

contained in current § 3.344(a), ‘‘How 

VA determines whether there has been 

material improvement.’’

The proposed rule required 

significant reorganization of the current 

rule. In order to show clearly what we 

have done, we have reproduced below 

the current regulation, with numbers 

before each of the 10 sentences. Then, 

we have indicated how our proposed 

rule would dispose of each sentence of 

the existing rule. 

(a) Examination reports indicating 

improvement. [1] Rating agencies will handle 

cases affected by change of medical findings 

or diagnosis, so as to produce the greatest 

degree of stability of disability evaluations 

consistent with the laws and Department of 

Veterans Affairs regulations governing 

disability compensation and pension. [2] It is 

essential that the entire record of 

examinations and the medical-industrial 

history be reviewed to ascertain whether the 

recent examination is full and complete, 

including all special examinations indicated 

as a result of general examination and the 

entire case history. [3] This applies to 

treatment of intercurrent diseases and 

exacerbations, including hospital reports, 

bedside examinations, examinations by 

designated physicians, and examinations in 

the absence of, or without taking full 

advantage of, laboratory facilities and the 

cooperation of specialists in related lines. [4] 

Examinations less full and complete than 

those on which payments were authorized or 

continued will not be used as a basis of 

reduction. [5] Ratings on account of diseases 

subject to temporary or episodic 

improvement, e.g., manic depressive or other 

psychotic reaction, epilepsy, psychoneurotic 

reaction, arteriosclerotic heart disease, 

bronchial asthma, gastric or duodenal ulcer, 

many skin diseases, etc., will not be reduced 

on any one examination, except in those 

instances where all the evidence of record 

clearly warrants the conclusion that 

sustained improvement has been 

demonstrated. [6] Ratings on account of 

diseases which become comparatively 

symptom free (findings absent) after 

prolonged rest, e.g. residuals of phlebitis, 

arteriosclerotic heart disease, etc., will not be 

reduced on examinations reflecting the 

results of bed rest. [7] Moreover, though 

material improvement in the physical or 

mental condition is clearly reflected the 

rating agency will consider whether the 

evidence makes it reasonably certain that the 

improvement will be maintained under the 

ordinary conditions of life. [8] When syphilis 

of the central nervous system or alcoholic 

deterioration is diagnosed following a long 

prior history of psychosis, psychoneurosis, 

epilepsy, or the like, it is rarely possible to 

exclude persistence, in masked form, of the 

preceding innocently acquired 

manifestations. [9] Rating boards 

encountering a change of diagnosis will 

exercise caution in the determination as to 

whether a change in diagnosis represents no 

more than a progression of an earlier 

diagnosis, an error in prior diagnosis or 

possibly a disease entity independent of the 

service-connected disability. [10] When the 

new diagnosis reflects mental deficiency or 

personality disorder only, the possibility of 

only temporary remission of a super-imposed 

psychiatric disease will be borne in mind. 

At the outset, we note that, as 

discussed above, sentence 1 of § 3.344(a) 

is reflected in the proposed paragraph 

(a) and sentence 7 of § 3.344(a) is 

reflected in proposed paragraph (c)(2). 

Proposed paragraph (d)(1) is derived 

from current § 3.344(a) sentences 2, 3, 

and 4, which together emphasize the 

requirement that only a complete 

examination, including a review of the 

full medical record, can serve as a basis 

for a reduction under this section. The 

items needed for a complete medical 

record are in the proposed rule. The list 


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includes all of the items in the current 

rule. 

Proposed paragraph (d)(2) restates in 

plain language current § 3.344(a) 

sentence 5, which states, ‘‘lists those 

diseases that will not be reduced on any 

one examination, absent evidence 

showing sustained improvement.’’ The 

list of diseases contained in the existing 

rule is set off as indented ‘‘bullet 

points,’’ to improve readability. In 

addition, we note that the term ‘‘manic 

depressive’’ is no longer an accepted 

term in the psychiatric community. It 

has been replaced by the term ‘‘Bipolar 

Disorders.’’ See American Psychiatric 

Association, Diagnostic and Statistical 

Manual of Mental Disorders, 382–401 

(4th ed. 2000). We therefore propose to 

use the term ‘‘Bipolar Disorders’’

instead of using ‘‘manic depressive.’’ In 

addition, we note that the term 

‘‘psychoneurotic reaction’’ is no longer 

an accepted term in the psychiatric 

community. It has been replaced by the 

term ‘‘Anxiety Disorders.’’ See 

American Psychiatric Association, 

Diagnostic and Statistical Manual of 

Mental Disorders, 429–484 (4th ed. 

2000). We therefore propose to use the 

term ‘‘Anxiety Disorders’’ instead of 

using ‘‘psychoneurotic reaction.’’

The intent behind sentence 5 of 

§ 3.344(a) is not that every single piece 

of evidence of record clearly warrants 

the conclusion that sustained 

improvement has been demonstrated. 

Such a literal interpretation would lead 

to an absurd result because in a case 

where a rating has been in effect for 8 

years, the evidence from 6–8 years 

would not show sustained 

improvement; only more recent 

evidence would show sustained 

improvement. Sentence 5 uses ‘‘all’’ to 

refer to the evidentiary record as a 

whole. We propose to not include the 

word ‘‘all’’ in paragraph (d) to clarify 

that VA does not intend that every 

single piece of evidence of record must 

clearly warrant the conclusion that 

sustained improvement has been 

demonstrated, but rather that the 

evidentiary record as a whole must 

clearly warrant such a conclusion. 

Proposed paragraph (d)(3) restates in 

plain language current § 3.344(a) 

sentence 6. 

Proposed (d)(4) provides a statement 

of VA’s policy as to when it will find 

‘‘material improvement’’ to exist, as 

follows: ‘‘(4) Material improvement will 

be held to exist only where, after full 

compliance with the procedure outlined 

in this paragraph (d), the medical record 

clearly demonstrates that the disability 

does not meet the requirements for the 

currently assigned disability rating.’’

Proposed paragraph (d)(5) reflects the 

first, ninth, and tenth sentences of 

current § 3.344(a), and references a 

similar rule, 38 CFR 4.13. Section 4.13 

states that in reevaluating a case based 

on a change in diagnosis, ‘‘The 

repercussion upon a current rating of 

service connection when change is 

made of a previously assigned diagnosis 

or etiology must be kept in mind. The 

aim should be the reconciliation and 

continuance of the diagnosis or etiology 

upon which service connection for the 

disability had been granted.’’ Section 

4.13 is similar to § 3.344(a) sentence 1, 

but the language of § 4.13 more clearly 

places emphasis on the protection of the 

existing rating. Therefore, we explicitly 

require consideration of the part 4 rule 

when VA is confronted with evidence of 

a change in diagnosis. 

Proposed paragraph (d)(6) restates 

without alteration current § 3.344(a) 

sentence 8. 

Proposed paragraph (e) restates, in 

plain language, current § 3.344(b). We 

note that the current rule requires VA to 

cite ‘‘the former diagnosis with the new 

diagnosis in parentheses,’’ whereas the 

proposed rule would require VA to cite 

‘‘the former diagnosis with the new 

diagnosis, if any, in parentheses’’

(emphasis added). This change clarifies 

that proposed paragraph (e) applies to 

any basis for reduction, not just to 

reductions based on a changed 

diagnosis. 

Section 5.172 Protection of Continuous 

20-Year Ratings 

Proposed § 5.172 is based on current 

§ 3.951(b), which protects disability 

ratings and ratings of permanent and 

total disability for pension purposes that 

have been in effect for at least 20 years. 

Proposed paragraph (a) restates in 

plain language the protection in current 

§ 3.951(b) afforded to disabilities rated 

for periods in which the beneficiary was 

receiving compensation. It would not 

include the phrase ‘‘under laws 

administered by the Department of 

Veterans Affairs’’ because there is no 

ambiguity concerning whether this 

regulation applies to ratings under VA 

regulations. 

Proposed paragraph (b) restates in 

plain language the current protection 

afforded in current § 3.951(b) to a rating 

of permanent total disability for pension 

purposes. 

Proposed paragraph (c) states that the 

20-year protection against reduction 

applies ‘‘whether or not the veteran 

elects to receive disability compensation 

or pension during all or any part of the 

20-year period.’’ This additional 

language reflects the holding of Salgado 

v. Brown, 4 Vet. App. 316, 320 (1993) 

(‘‘The Court holds that the protection 

afforded by section 110 of title 38 of the 

United States Code applies to ratings for 

compensation purposes, whether or not 

a veteran elects to receive a monetary 

award.’’). Because 38 U.S.C. 110 applies 

to both pension and compensation, we 

propose to include pension in proposed 

paragraph (c). 

Section 5.173 Protection Against 

Reduction of Disability Ratings When 

Revisions Are Made to the Schedule for 

Rating Disabilities 

Proposed § 5.173 is derived from 

current §§ 3.951 and 3.952. Section 

3.951(a) states that VA will not reduce 

any disability rating in effect on the 

effective date of a revision of the 

applicable Schedule for Rating 

Disabilities, based on such revisions, 

unless medical evidence establishes that 

the rated disability has actually 

improved. Current § 3.952 applies that 

protection, with some modification, to 

ratings assigned under the Schedule of 

Disability Ratings, 1925, which were the 

basis of compensation on April 1, 1946, 

when the current Schedule of Disability 

Ratings took effect. Proposed § 5.173 

combines the general rule in current 

§ 3.951(a) with the specific rule in 

current § 3.952, into a single regulation 

titled, ‘‘Protection against reduction of 

disability ratings when revisions are 

made to the Schedule for Rating 

Disabilities.’’ At the end of the proposed 

regulation, we cross-reference proposed 

§ 5.176, the regulation that describes the 

process required before reducing a 

rating. 

Proposed paragraph (a) restates in 

plain language the general rule in 

current § 3.951(a), as follows: ‘‘VA will 

not reduce a disability rating in effect on 

the effective date of a revision of the 

applicable Schedule for Rating 

Disabilities unless medical evidence 

establishes that the rated disability has 

actually improved, except when the 

rating was assigned under the 1925 

Schedule of Disability Ratings (as 

provided in paragraph (b) of this 

section).’’

Proposed paragraph (b) of § 5.173 

restates in plain language the 

protections afforded under current 

§ 3.952. These changes are meant to 

make the rules easier to follow; no 

substantive changes are intended. 

Section 5.174 Protection of 

Entitlement to Benefits Established 

Before 1959 

Proposed § 5.174 is based on current 

§ 3.953. We propose not to include 

current § 3.953(b), which refers to 

emergency officers’ retirement pay 

payable to veterans of World War I. We 


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believe it is very unlikely that VA will 

receive any more claims for this benefit. 

However, if such a claim were to be 

received, Section 11, Public Law 85–857 

would be used to adjudicate the claim. 

Section 5.175 Protection or Severance 

of Service Connection 

Proposed § 5.175 is derived from 

current §§ 3.957 and 3.105(d). Proposed 

§ 5.175(a) incorporates current § 3.957, 

which states that service connection for 

disability or death may be protected if 

it has been in effect for 10 years or more. 

Such a rating may not be severed unless 

any of the following are shown: (1) The 

original grant was obtained through 

fraud; or, (2) military records clearly 

show that the person identified as a 

veteran did not have the requisite 

qualifying service; or, (3) military 

records clearly show that the veteran’s 

discharge from service was a bar to 

service connection. See 38 CFR 3.12. We 

would include the current rule in the 

provision governing severance of service 

connection because the rule advises 

claimants of circumstances when a 

protected rating may be severed. 

Proposed § 5.175(b) provides that 

severance of service connection may 

also occur when evidence establishes 

that it is clearly and unmistakably 

erroneous (the burden of proof being 

upon VA), subject to §§ 5.152 and 5.176. 

This paragraph further provides that a 

change in medical diagnosis may be a 

basis for severing service connection if 

the examining physician or physicians 

or other proper medical authority 

certifies that, in light of all accumulated 

evidence, the diagnosis that was the 

basis of the award is clearly erroneous. 

That certification must be accompanied 

by a summary of the facts, findings, and 

reasons supporting the conclusion that 

the diagnosis is erroneous. 

Section 5.176 Due Process Procedures 

for Severing Service Connection or 

Reducing or Discontinuing 

Compensation Benefits 

Proposed § 5.176 re-states current 

§ 3.105(d), (e). Current § 3.105(d) and (e) 

state that a claimant has 60 days from 

the date of the notice of a proposed 

severance of service connection or 

reduction or discontinuance of benefits 

in which to submit evidence showing 

the proposed action should not be 

taken. The last sentence of both current 

§ 3.105(d) and current § 3.105(e) states 

that 

[i]f additional evidence is not received 

within that period, final rating action will be 

taken and the award will be reduced or 

discontinued * * * effective the last day of 

the month in which a 60-day period from the 

date of notice to the beneficiary of the final 

rating action expires. 

We propose to clarify in § 5.176(c) 

that if no evidence is received within 60 

days, or if evidence is received that does 

not demonstrate that the proposed 

action should not be taken, VA will 

notify the beneficiary that VA is 

severing service connection or reducing 

or discontinuing the benefit. 

Section 5.177 Effective Dates for 

Severing Service Connection or 

Discontinuing or Reducing Benefit 

Payments 

Proposed § 5.177 contains the 

effective date provisions related to 

severance of service connection and 

reduction or discontinuance of benefits. 

It is derived from various provisions of 

current § 3.105. We propose in 

paragraph (a) to restate the provisions 

found in the introductory paragraph of 

§ 3.105 regarding effective dates for 

reductions or discontinuances of 

suspended awards. We propose in 

paragraph (c) to list the three exceptions 

to § 5.177, which are derived from the 

introductory paragraph of § 3.105 and 

current § 3.500(b). We propose not to 

include the exception for cases where 

the award of service connection was 

‘‘clearly illegal’’ because such cases 

would properly fall within § 3.105 and 

proposed § 5.177(d). 

We propose in paragraphs (d) through 

(i), to state the specific type of benefit 

that is the subject of the particular 

effective date rule and to explain when 

the benefit will be reduced, stopped, or 

severed. These effective date provisions 

are from paragraphs (c) through (h) of 

the current version of § 3.105. 

Endnote Regarding Amendatory 

Language 

We intend to ultimately remove part 

3 entirely, but we are not including 

amendatory language to accomplish that 

at this time. VA will provide public 

notice before removing part 3. 

Paperwork Reduction Act 

This document contains no provisions 

constituting a new collection of 

information under the Paperwork 

Reduction Act (44 U.S.C. 3501–3521). 

Regulatory Flexibility Act 

The Secretary hereby certifies that 

this regulatory amendment will not 

have a significant economic impact on 

a substantial number of small entities as 

they are defined in the Regulatory 

Flexibility Act (RFA), 5 U.S.C. 601–612. 

This amendment would not 

significantly impact any small entities. 

Therefore, pursuant to 5 U.S.C. 605(b), 

this amendment is exempt from the 

initial and final regulatory flexibility 

analysis requirements of sections 603 

and 604. 

Executive Order 12866 

Executive Order 12866 directs 

agencies to assess all costs and benefits 

of available regulatory alternatives and, 

when regulation is necessary, to select 

regulatory approaches that maximize 

net benefits (including potential 

economic, environmental, public health 

and safety, and other advantages; 

distributive impacts; and equity). The 

Executive Order classifies a ‘‘significant 

regulatory action,’’ requiring review by 

the Office of Management and Budget 

(OMB) unless OMB waives such review, 

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 proposed rule have 

been examined, and it has been 

determined to be a significant regulatory 

action under the Executive Order 

because it is likely to result in a rule that 

may 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 an 

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 

given year. This proposed rule would 

have no such effect on State, local, and 

tribal governments, or the private sector. 

Catalog of Federal Domestic Assistance 

Numbers and Titles 

The Catalog of Federal Domestic 

Assistance program numbers and titles 

for this proposal are 64.100, 


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28784 Federal Register / Vol. 72, No. 98 / Tuesday, May 22, 2007 / Proposed Rules 

Automobiles and Adaptive Equipment 

for Certain Disabled Veterans and 

Members of the Armed Forces; 64.101, 

Burial Expenses Allowance for 

Veterans; 64.102, Compensation for 

Service-Connected Deaths for Veterans’

Dependents; 64.104, Pension for NonService Connected Disability for 

Veterans; 64.105, Pension to Veterans 

Surviving Spouses, and Children; 

64.106, Specially Adapted Housing for 

Disabled Veterans; 64.109, Veterans 

Compensation for Service-Connected 

Disability; 64.110, Veterans Dependency 

and Indemnity Compensation for 

Service-Connected Death; 64.115, 

Veterans Information and Assistance; 

and 64.127, Monthly Allowance for 

Children of Vietnam Veterans Born with 

Spina Bifida. 

List of Subjects in 38 CFR Part 5 

Administrative practice and 

procedure, Claims, Disability benefits, 

Pensions, Veterans. 

Approved: February 8, 2007. 

Gordon H. Mansfield, 

Deputy Secretary of Veterans Affairs. 

For the reasons set out in the 

preamble, VA proposes to further 

amend 38 CFR part 5, as proposed to be 

added at 69 FR 4832, January 30, 2004, 

by adding subpart C to read as follows: 

PART 5—COMPENSATION, PENSION, 

BURIAL, AND RELATED BENEFITS 

Subpart C—Adjudicative Process, 

General 

General Evidence Requirements 

Sec. 

5.130 Submission of statements, evidence, 

or information affecting entitlement to 

benefits. 

5.131 Applications, claims, and exchange of 

evidence with Social Security 

Administration (SSA)—death benefits. 

5.132 Claims, statements, evidence, or 

information filed abroad; authentication 

of documents from foreign countries. 

5.133 Information VA may request from 

financial institutions. 

5.134 Will VA accept a signature by mark 

or thumbprint? 

5.135 Statements certified or under oath or 

affirmation. 

5.136–5.139 [Reserved] 

Evidence Requirements for Former Prisoners 

of War (POWS) 

5.140 Determining former prisoner of war 

status. 

5.141 Medical evidence for former 

prisoners’ of war compensation claims. 

5.142–5.149 [Reserved] 

General Effective Dates for Awards 

5.150 General effective dates for awards or 

increased benefits. 

5.151 Date of receipt. 

5.152 Effective dates based on change of 

law or VA issue. 

5.153 Effective date of awards based on 

receipt of evidence prior to end of appeal 

period. 

5.154–5.159 [Reserved] 

General Rules on Revision of Decisions 

5.160 Binding effect of VA decisions. 

5.161 Review of benefit claims decisions. 

5.162 Revision of decisions based on clear 

and unmistakable error (CUE). 

5.163 Revision of decisions based on 

difference of opinion. 

5.164 Effective dates for revision of 

decisions based on difference of opinion. 

5.165 Effective dates for reduction or 

discontinuance of awards based on error. 

5.166 New and material evidence based on 

service department records. 

5.167–5.169 [Reserved] 

General Rules on Protection or Reduction of 

Existing Ratings 

5.170 Calculation of 5-year, 10-year, and 

20-year protection periods. 

5.171 Protection of 5-year stabilized ratings. 

5.172 Protection of continuous 20-year 

ratings. 

5.173 Protection against reduction of 

disability ratings when revisions are 

made to the Schedule for Rating 

Disabilities. 

5.174 Protection of entitlement to benefits 

established before 1959. 

5.175 Protection or severance of service 

connection. 

5.176 Due process procedures for severing 

service connection or reducing or 

discontinuing compensation benefits. 

5.177 Effective dates for severing service 

connection or discontinuing or reducing 

benefit payments. 

5.178–5.179 [Reserved] 

Authority: 38 U.S.C. 501(a) and as noted in 

specific sections. 

Subpart C—Adjudicative Process, 

General 

General Evidence Requirements 

§ 5.130 Submission of statements, 

evidence, or information affecting 

entitlement to benefits. 

(a) Statement of VA policy concerning 

submission of written statements, 

evidence, or information. (1) It is VA’s 

general policy to allow submission of 

statements, evidence, or information by 

e-mail, facsimile (fax) machine, or other 

electronic means, unless a VA 

regulation, form, or directive expressly 

requires a different method of 

submission (for example, where a VA 

form directs claimants to submit certain 

documents by regular mail or hand 

delivery). This policy does not apply to 

the submission of a claim, Notice of 

Disagreement, Substantive Appeal, or 

any other submissions or filing 

requirements covered in parts 19 and 20 

of this chapter. 

(2) Paragraph (a)(1) of this section 

merely concerns the method by which 

written statements, evidence, or 

information is submitted to VA. 

Requirements regarding the content of 

the submission must still be met. 

(b) VA action following submission of 

statements, evidence, or information. 

Except as otherwise provided, after a 

beneficiary or his or her fiduciary or 

authorized representative provides VA 

with a statement, evidence, or 

information that affects entitlement to 

benefits, either orally or in writing, VA 

may take action affecting the 

beneficiary’s entitlement to benefits 

based upon the statement, evidence, or 

information. 

(c) Notice and documentation or oral 

statements. Except as provided in 

paragraph (d) of this section, VA will 

not take action based on oral statements 

unless the VA employee receiving the 

information meets the following 

conditions: 

(1) During the conversation in which 

the beneficiary, representative, or 

fiduciary provides the statement, the VA 

employee: 

(i) Identifies himself or herself as a 

VA employee who is authorized to 

receive the statement (this means that 

the VA employee must be authorized to 

take actions under §§ 2.3 or 3.100 of this 

chapter); 

(ii) Verifies the identity of the 

provider as the beneficiary or his or her 

fiduciary or authorized representative 

by obtaining specific information about 

the beneficiary that is contained in the 

beneficiary’s VA records, such as Social 

Security number, date of birth, branch 

of military service, dates of military 

service, or other information; and 

(iii) Informs the provider that the 

statement may be used to calculate 

benefit amounts; and 

(2) During or following the 

conversation in which the beneficiary, 

representative, or fiduciary provides the 

statement, the VA employee documents 

in the beneficiary’s VA record all of the 

following: 

(i) The specific statement provided. 

(ii) The date such statement was 

provided. 

(iii) The identity of the provider. 

(iv) The steps taken to verify the 

identity of the provider as being the 

beneficiary or his or her fiduciary or 

authorized representative. 

(v) The statement of the employee that 

the provider was informed that the 

statement may be used for the purpose 

of calculating benefits amounts. 

(d) Exceptions to paragraph (c) notice 

and documentation requirements. 

Paragraph (c) of this section does not 

apply to the following: 


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(1) Oral statements made at a VA 

hearing; and 

(2) Oral statements recorded by VA 

personnel in reports of medical 

treatment or examination. 

(Authority: 38 U.S.C. 501(a)) 

§ 5.131 Applications, claims, and 

exchange of evidence with Social Security 

Administration (SSA)—death benefits. 

(a) Dual-purpose SSA and VA 

application forms. A claim for death 

benefits received by SSA on a form 

jointly prescribed by VA and SSA 

claiming such benefits is considered to 

be a claim for VA death benefits 

(including dependency and indemnity 

compensation (DIC), death pension, and 

accrued benefits). The claim will be 

deemed to have been received by VA on 

the date that it was received by SSA. 

(b) Evidence filed with SSA. Evidence 

received by SSA in conjunction with a 

claim under paragraph (a) of this section 

is considered received by VA on the 

date that SSA received the evidence. 

(c) SSA request of copies or 

certifications of evidence filed with VA. 

At SSA’s request, VA will furnish 

copies or certifications of evidence that 

a claimant has filed with VA in support 

of a claim for VA death benefits, 

provided that the release of this 

evidence fully complies with all 

requirements in any applicable laws and 

regulations that protect the 

confidentiality of VA records. 

(Authority: 38 U.S.C. 501(a), 5101(b)(1), 

5105) 

§ 5.132 Claims, statements, evidence, or 

information filed abroad; authentication of 

documents from foreign countries. 

(a) Claims and evidence filed abroad. 

A claim, or statements, information, or 

evidence in support of a claim, may be 

submitted to a Department of State 

representative in a foreign country. Any 

claim, statement, information, or 

evidence filed in a foreign country will 

be considered received by VA on the 

date that it was received by the 

Department of State representative in 

that foreign country. 

(b) Authentication of foreign 

documents—generally. Foreign 

documents listed in paragraph (c) of this 

section do not require authentication. 

All other foreign documents must be 

authenticated as specified in paragraph 

(d) of this section. ‘‘Foreign documents’’

means documents that are signed under 

oath or affirmation in the presence of an 

official in a foreign country. Examples 

of foreign documents include affidavits, 

marriage certificates, and birth 

certificates that have been created, 

executed, or validated by a foreign 

government. ‘‘Authentication’’ means 

that an official listed in paragraph (d) of 

this section verifies that the foreign 

document, including each signature, 

stamp, and seal appearing on it, is 

genuine and has not been altered. 

(c) Authentication of certain foreign 

documents not required. VA does not 

require authentication of the following 

types of foreign documents: 

(1) Documents approved by the 

Deputy Minister of Veterans Affairs for 

the Department of Veterans Affairs, 

Ottawa, Canada. 

(2) Documents bearing the signature 

and seal of an officer authorized to 

administer oaths for general purposes. 

(3) Documents signed before a VA 

employee authorized to administer 

oaths under § 2.3 of this chapter. 

(4) Affidavits prepared in the 

Republic of the Philippines that are 

certified by a VA representative who is 

located there and who has the authority 

to administer oaths. 

(5) Copies of public or church records 

from any foreign country used to 

establish birth, adoption, marriage, 

annulment, divorce, or death, provided 

that the documents have the signature 

and seal of the custodian of these 

records and there is no contrary 

evidence of record that tends to cast 

doubt on the correctness of the 

documents. 

(d) Authentication of foreign 

documents required. Foreign documents 

not listed in paragraph (c) of this section 

must be authenticated by: 

(1) An officer of the Department of 

State authorized to authenticate 

documents; or 

(2) The Consul of a friendly 

government whose signature and seal is 

verified by the Department of State. 

(e) Photocopies of foreign documents. 

VA will accept photocopies of any of 

the foreign documents described in 

paragraphs (c) and (d) of this section if 

VA determines that the photocopies 

satisfy the requirements of § 5.180. 

(Authority: 38 U.S.C. 501(a)) 

§ 5.133 Information VA may request from 

financial institutions. 

(a) Names and addresses. If VA needs 

to verify a person’s correct name or 

address, VA may request this 

information from a financial institution, 

such as a bank, savings and loan 

association, trust company, or credit 

union. In its request, VA must certify 

that the name or address is necessary in 

order to administer properly its benefit 

programs and cannot be located by a 

reasonable search of VA records. 

(b) Financial information. VA may ask 

a financial institution to provide 

financial records of a current or former 

claimant or a current or former 

beneficiary if such evidence is necessary 

to determine whether such person has 

failed to comply with a statute, 

regulation, rule, or order. This request, 

however, must be made through a 

subpoena. (A subpoena is a legal 

document commanding an individual or 

organization to provide specified 

evidence to the issuer of the subpoena. 

See § 2.2 of this chapter for information 

on VA’s authority to issue subpoenas.) 

Before the date VA serves a subpoena on 

a financial institution, VA must: 

(1) Serve or mail a copy of the 

subpoena to the beneficiary; together 

with 

(2) A written explanation of the 

purpose of VA’s request for financial 

information and the procedure for 

challenging the subpoena. See 12 U.S.C. 

3405. 

(c) Limitations on use of information. 

Unless permitted under the Right to 

Financial Privacy Act (codified at 12 

U.S.C. 3401, et seq.), VA may not: 

(1) Use information obtained from a 

financial institution for any purpose 

other than the administration of VA 

benefits programs; or 

(2) Share this information with any 

other individual, group, or government 

entity. 

(Authority: 12 U.S.C. 3401, 3405, 3412, 3413; 

38 U.S.C. 501, 5711, 5319) 

§ 5.134 Will VA accept a signature by mark 

or thumbprint? 

VA will accept signatures by mark or 

thumbprint if: 

(a) They are witnessed by two people 

who sign their names and give their 

addresses, or 

(b) They are witnessed by an 

accredited agent, attorney, or service 

organization representative, or 

(c) They are certified by a notary 

public or any other person having the 

authority to administer oaths for general 

purposes, or 

(d) They are certified by a VA 

employee who has been delegated 

authority by the Secretary under 38 CFR 

2.3. 

(Authority: 38 U.S.C. 5101) 

§ 5.135 Statements certified or under oath 

or affirmation. 

(a) All oral testimony presented by 

claimants and witnesses on their behalf 

will be under oath or affirmation (see 

§ 5.82(d)(2)). 

(b) Any documentary evidence or 

written assertion of fact submitted by 

the claimant or on his or her behalf for 

the purpose of establishing a claim for 

service connection should be certified 

or under oath or affirmation. VA may 

consider such a submission that is not 

certified or under oath or affirmation or 


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may require certification, oath, or 

affirmation if considered necessary to 

establish the reliability of a material 

document. Documentary evidence 

includes records, examination reports, 

and transcripts material to the issue 

received by VA from State, county, or 

municipal governments, recognized 

private institutions, or contract 

hospitals. 

(Authority: 38 U.S.C. 501) 

§§ 5.136 through 5.139 [Reserved] 

Evidence Requirements for Former 

Prisoners of War (POWs) 

§ 5.140 Determining former prisoner of war 

status. 

(a) Basis for determination. The 

definition of ‘‘hostile force’’ set forth in 

paragraph (3) of the definition of 

‘‘Former prisoner of war (or former 

POW)’’ in § 5.1 applies to this section. 

VA will accept a finding by the 

appropriate service department that a 

person was a POW during a period of 

war when detention or internment was 

by an enemy government or its agents, 

or a hostile force, except when a 

reasonable basis exists for questioning 

that finding. The Director of the 

Compensation and Pension Service 

must approve all regional office 

determinations not based on service 

department findings. VA will apply 

paragraphs (b), (c), and (d) of this 

section and make its own determination 

of POW status if: 

(1) The detention or internment 

occurred during a period other than a 

period of war; or 

(2) If a service department has not 

made a finding; or 

(3) A reasonable basis exists for 

questioning a service-department 

finding. 

(b) Circumstances of detention or 

internment. To be considered a former 

POW, a serviceperson must have been 

forcibly detained or interned under 

circumstances comparable to those 

under which persons generally have 

been forcibly detained or interned by 

enemy governments during periods of 

war. Such circumstances include, but 

are not limited to, physical hardships or 

abuse, psychological hardships or 

abuse, malnutrition, and unsanitary 

conditions. In the absence of evidence 

to the contrary, VA will consider that 

each individual member of a particular 

group of detainees or internees 

experienced the same circumstances as 

those experienced by the group. 

(c) Reason for detention or 

internment. For the purposes of 

determining POW status, VA will not 

consider the reason a service member 

was detained or interned, except where 

allegations exist that the service member 

violated the laws of a foreign 

government. A period of detention or 

internment by a foreign government for 

an alleged violation of its laws cannot 

be used to establish POW status, unless 

the charges were a sham intended to 

make it appear that the detention or 

internment was proper. 

(d) Line of duty. VA will consider that 

a serviceperson was forcibly detained or 

interned in line of duty unless the 

evidence of record discloses that 

forcible detention or internment was the 

proximate result of the service member’s 

own willful misconduct. See § 5.660 

(defining line of duty) and § 5.661 

(defining willful misconduct). 

Cross-reference: See § 5.611 

(concerning POW status and Philippine 

service). 

(Authority: 38 U.S.C. 101(32)) 

§ 5.141 Medical evidence for former 

prisoners’ of war compensation claims. 

(a) Injuries and other conditions of a 

former prisoner of war (POW). As soon 

as sufficient evidence for a rating is 

available, VA will rate injuries or other 

conditions of a former POW that 

obviously were incurred in service, 

without awaiting receipt of the 

claimant’s medical and other service 

records. 

(b) Statements by a former POW. VA 

will presume true a statement by a 

former POW that an injury or disease 

was incurred or aggravated during (or 

immediately before) detention or 

internment if the statement is consistent 

with the circumstances, conditions, or 

hardships of detention or internment (or 

is consistent with the former POW’s 

situation immediately before detention 

or internment). The presumption of 

truth as to such a statement is rebutted 

by clear and convincing evidence to the 

contrary. See also § 3.304(f)(2) 

(pertaining to post-traumatic stress 

disorder claimed by a former POW). 

(c) Evidence from fellow service 

members. Evidence from fellow service 

members may be used to support an 

allegation of incurrence or aggravation 

of an injury or disease during detention 

or internment. In evaluating evidence 

from fellow service members that relates 

to a claim for disability compensation 

by a former POW, VA will take into 

account the fellow service member’s 

statements, including statements 

regarding any of the following: 

(1) The former POW’s physical 

condition before capture; 

(2) The circumstances during the 

former POW’s detention or internment; 

(3) The changes in the former POW’s 

physical condition following release 

from detention or internment; or 

(4) The existence of signs and 

symptoms consistent with a claimed 

disability following the former POW’s 

release from detention or internment. 

(d) The absence of clinical records. If 

disability compensation is claimed by a 

former POW, VA will not consider as 

determinative the lack of history or 

findings in clinical records made upon 

the claimant’s return to United States 

control. 

(e) Disabilities first reported after 

discharge. If any disability is first 

reported after discharge, especially if 

the claimed disability is poorly defined 

and not obviously of intercurrent origin, 

VA will determine whether the claimed 

disability is etiologically related to the 

POW experience. VA will consider the 

circumstances of the claimant’s 

detention or internment, the duration of 

detention or internment, and the 

pertinent medical principles. 

(f) Examination requirement. If 

service connection for disabilities 

claimed by a former POW cannot be 

established otherwise, VA will provide 

the claimant a complete medical 

examination. 

Cross-references: Definition of 

prisoner of war. See § 5.1. Presumptive 

service connection for diseases specific 

to prisoners of war. See § 5.264(c). 

(Authority: 38 U.S.C. 1154) 

§§ 5.142–5.149 [Reserved] 

General Effective Dates for Awards 

§ 5.150 General effective dates for awards 

or increased benefits. 

(a) General rule. Except as otherwise 

provided, the effective date of an award 

of pension, compensation, dependency 

and indemnity compensation, or 

monetary allowance under 38 U.S.C. 

chapter 18 for an individual who is a 

child of a Vietnam veteran, based on an 

original claim, a claim reopened after 

final disallowance, or a claim for 

increase, will be the later of: 

(1) The date of receipt of the claim for 

the benefit awarded; or 

(2) The date entitlement arose. For the 

purposes of this part, ‘‘date entitlement 

arose’’ means the date shown by the 

evidence to be the date that the claimant 

first met the requirements for the benefit 

awarded. VA will assume that 

entitlement arose before the date of 

receipt of the claim unless the evidence 

shows that entitlement arose after that 

date. 

(b) Location of other effective-date 

provisions in part 5. The following chart 

is intended to provide assistance in 

locating various other effective-date 

provisions in this part. It is provided for 

informational use only. 


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Effective date provision Part 5 location 

(1) SUBPART B—SERVICE REQUIREMENTS FOR VETERANS 

(i) Individuals and groups designated by the Secretary of Defense as having performed active military service ............... § 5.27(c). 

(ii) Effect of discharge upgrades by Armed Forces boards for the correction of military records (10 U.S.C. 1552) on eligibility for VA benefits.§ 5.34(d). 

(iii) Effect of discharge upgrades by Armed Forces discharge review boards (10 U.S.C. 1553) on eligibility for VA benefits.§ 5.35(e). 

(2) SUBPART C—ADJUDICATIVE PROCESS, GENERAL 

(i) Filing a claim for death benefits ........................................................................................................................................ § 5.53(c)(5). 

(ii) New and material evidence .............................................................................................................................................. § 5.56(b). 

(iii) Requirement to provide Social Security numbers ........................................................................................................... § 5.101(c), (d). 

(iv) Effective dates based on change of law or VA issue ..................................................................................................... § 5.152. 

(v) Effective date of awards based on receipt of evidence prior to end of appeal period .................................................... § 5.153. 

(vi) Revision of decisions based on clear and unmistakable error (CUE) ............................................................................ § 5.162(b). 

(vii) Effective dates for revision of decisions based on difference of opinion under § 5.163 ................................................ § 5.164. 

(viii) Effective dates for reduction or discontinuance of awards based on error ................................................................... § 5.165. 

(ix) New and material evidence based on service department records ................................................................................ § 5.166(c), (d). 

(x) Effective dates for severing service connection or discontinuing or reducing benefit payments .................................... § 5.177. 

(3) SUBPART D—DEPENDENTS AND SURVIVORS 

(i) Evidence of dependency-reduction or discontinuance of VA benefits ............................................................................. § 5.181(c). 

(ii) Effective date for additional benefits based on the existence of a dependent ................................................................ § 5.183. 

(iii) Effective date of reduction or discontinuance of VA benefits due to the death of a beneficiary’s dependent ............... § 5.184. 

(iv) Effective date of reduction or discontinuance of improved pension, compensation, or dependency and indemnity 

compensation due to marriage or remarriage.

§ 5.197. 

(v) Effective date of reduction or discontinuance of improved pension, compensation, or dependency and indemnity 

compensation due to divorce or annulment.

§ 5.198. 

(vi) Effective date of discontinuance of VA benefits to a surviving spouse who holds himself, or herself, out as the 

spouse of another person.

§ 5.204. 

(vii) Effective date of resumption of benefits to a surviving spouse due to termination of a remarriage ............................. § 5.205. 

(viii) Effective date of resumption of benefits to a surviving spouse who stops holding himself, or herself, out as the 

spouse of another.

§ 5.206. 

(ix) Effective date of award of pension or dependency and indemnity compensation to, or based on the existence of, a 

child born after the veteran’s death.

§ 5.230. 

(x) Effective date of reduction or discontinuance—child reaches age 18 or 23 ................................................................... § 5.231. 

(xi) Effective date of reduction or discontinuance—terminated adoptions ............................................................................ § 5.232. 

(xii) Effective date of reduction or discontinuance—stepchild no longer a member of the veteran’s household ................. § 5.233. 

(xiii) Effective date of an award, reduction, or discontinuance of benefits based on child status due to permanent incapacity for self support.§ 5.234. 

(xiv) Effective date of an award of benefits due to termination of a child’s marriage .......................................................... § 5.235. 

(4) SUBPART E—CLAIMS FOR SERVICE CONNECTION AND DISABILITY COMPENSATION 

(i) Effective dates—award of disability compensation based on direct service connection ................................................. § 5.310. 

(ii) Effective dates—award of disability compensation based on presumptive service connection ...................................... § 5.311. 

(iii) Effective dates—increased compensation due to increased disability ........................................................................... § 5.312. 

(iv) Effective dates—reduction or severance of service-connected disability compensation ............................................... § 5.313. 

(v) Effective dates—discontinuance of total disability rating based on individual unemployability ....................................... § 5.314. 

(vi) Effective dates—reduction or discontinuance of additional disability compensation based on parental dependency ... § 5.315. 

(vii) Effective dates—award of additional disability compensation based on decrease in the net worth of dependent parents.§ 5.316. 

(viii) Effective dates—Special monthly compensation under §§ 5.331 through 5.332 .......................................................... § 5.333. 

(ix) Effective dates—Additional compensation for aid and attendance payable for a veteran’s spouse .............................. § 5.334. 

(x) Effective date: Tuberculosis, special compensation for arrested .................................................................................... § 5.349. 

(xi) Benefits under 38 U.S.C. 1151(a) for additional disability or death due to hospitalization, medical or surgical treatment, examinations, or vocational rehabilitation training.§ 5.352(a)(2). 

(xii) Effective dates for disability or death due to hospitalization, medical or surgical treatment, examinations, or vocational rehabilitation training.§ 5.353. 

(5) SUBPART F—NONSERVICE-CONNECTED DISABILITY PENSIONS AND DEATH PENSIONS 

(i) Permanent and total disability ratings for Improved Disability Pension purposes ............................................................ § 5.381(b)(2). 

(ii) Effective dates for Improved Disability Pension ............................................................................................................... § 5.383. 

(iii) Effective dates for awards of special monthly pension ................................................................................................... § 5.392. 

(iv) Automatic adjustment of maximum annual pension rates .............................................................................................. § 5.401(a). 

(v) Effective dates for Improved Pension awards based on a change in net worth ............................................................. § 5.415. 

(vi) Effective dates for changes to Improved Pension payments due to a change in income ............................................. § 5.422. 

(vii) Time limits to establish entitlement to Improved Pension or to increase the annual Improved Pension amount 

based on income.

§ 5.424(b), (c). 

(viii) Effective dates for Improved Death Pension ................................................................................................................. § 5.431. 

(ix) Effective date of discontinuance of Improved Death Pension payments to a beneficiary no longer recognized as the 

veteran’s surviving spouse.

§ 5.433. 


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Effective date provision Part 5 location 

(x) Award, or discontinuance of award, of Improved Death Pension to a surviving spouse where Improved Death Pension payments to a child are involved.§ 5.434(b), (c). 

(xi) Effective dates of improved pension elections ................................................................................................................ § 5.463. 

(xii) Effective dates for section 306 and old-law pension reductions or discontinuances .................................................... § 5.477. 

(6) SUBPART G—DEPENDENCY AND INDEMNITY COMPENSATION, DEATH COMPENSATION, ACCRUED BENEFITS, AND SPECIAL 

RULES APPLICABLE UPON DEATH OF A BENEFICIARY 

(i) Awards of dependency and indemnity compensation benefits to children when there is a retroactive award to a 

school child.

§ 5.524(c). 

(ii) Effective dates for DIC or death compensation awards .................................................................................................. § 5.567. 

(iii) Effective dates for discontinuance of DIC or death compensation payments to a person no longer recognized as the 

veteran’s surviving spouse.

§ 5.568. 

(iv) Effective date for award, or termination of award, of DIC or death compensation to a surviving spouse where DIC 

or death compensation payments to children are involved.

§ 5.569. 

(v) Effective date for reduction in DIC—surviving spouses ................................................................................................... § 5.570. 

(vi) Effective date for an award or increased rate based on amended income information—parents’ DIC ......................... § 5.571. 

(vii) Effective date for reduction or discontinuance based on increased income—parents’ DIC .......................................... § 5.572. 

(viii) Effective date for dependency and indemnity compensation rate adjustments when an additional dependent files 

an application.

§ 5.573. 

(ix) Effective dates of awards and discontinuances of special monthly dependency and indemnity compensation ........... § 5.574. 

(7) SUBPART H—SPECIAL AND ANCILLARY BENEFITS FOR VETERANS, DEPENDENTS, AND SURVIVORS 

(i) Medal of Honor pension .................................................................................................................................................... § 5.580(c). 

(ii) Awards of VA benefits based on special acts or private laws ......................................................................................... § 5.581(d). 

(iii) Special allowance payable under section 156 of Pub. L. 97–377 .................................................................................. § 5.588(f). 

(iv) Effective dates of awards for certain disabled children of Vietnam veterans ................................................................. § 5.591. 

(v) Clothing allowance ........................................................................................................................................................... § 5.606(e). 

(8) SUBPART I—BENEFITS FOR CERTAIN FILIPINO VETERANS AND SURVIVORS 

(i) Filipino veterans and their survivors: Effective dates for benefits at the full-dollar rate ................................................... § 5.614. 

(ii) Filipino veterans and their survivors: Effective dates of reductions and discontinuances for benefits at the full-dollar 

rate.

§ 5.618. 

(9) SUBPART K—MATTERS AFFECTING THE RECEIPT OF BENEFITS 

(i) Remission of forfeiture ...................................................................................................................................................... § 5.680(c)(2). 

(ii) Effective dates—forfeiture ................................................................................................................................................ § 5.681. 

(iii) Presidential pardon for offenses causing forfeiture ......................................................................................................... § 5.682(b), (d). 

(iv) Renouncement of benefits ............................................................................................................................................... § 5.683(c), (e)(1)(ii). 

(10) SUBPART L—PAYMENTS AND ADJUSTMENTS TO PAYMENTS 

(i) Benefits paid to a child attending an approved educational institution ............................................................................ § 5.695(c)–(g). 

(ii) General effective dates for reduction or discontinuance of benefits ................................................................................ § 5.705. 

(iii) Eligibility verification reports ............................................................................................................................................ § 5.708(f). 

(iv) Adjustment in benefits due to reduction or discontinuance of a benefit to another payee ............................................ § 5.710(b). 

(v) Disappearance of veteran for 90 days or more ............................................................................................................... § 5.711(b)(2), (c)(2), 

(d)(1). 

(vi) Resumption of payments when a payee’s whereabouts become known ....................................................................... § 5.712. 

(vii) Restriction on VA benefit payments to an alien located in enemy territory ................................................................... § 5.713. 

(viii) Reduction of Improved Pension when a veteran is receiving domiciliary or nursing home care ................................. § 5.720(a)(4), (d). 

(ix) Reduction of Section 306 Pension when a veteran is receiving hospital care ............................................................... § 5.721(a)(4), (d). 

(x) Reduction of Old-Law Pension when a veteran is receiving hospital care ..................................................................... § 5.722(a)(4). 

(xi) Reduction of Improved Pension when a veteran or surviving spouse is receiving Medicaid-covered nursing home 

care.

§ 5.723(b). 

(xii) Reduction of special monthly compensation involving aid and attendance when a veteran is receiving hospital care § 5.724(b), (e), (f). 

(xiii) Reduction of special monthly pension involving aid and attendance for Improved Pension when a veteran is receiving hospital care.§ 5.725(b), (d), (e). 

(xiv) Reduction of special monthly pension involving aid and attendance for Old-Law Pension or Section 306 Pension 

when a veteran is receiving hospital care.

§ 5.726(b), (e). 

(xv) Resumption of Section 306 Pension and special monthly pension involving aid and attendance when a veteran is 

discharged or released from hospital care.

§ 5.727(b), (e), (f). 

(xvi) Resumption of Old-Law Pension and special monthly pension involving aid and attendance when a veteran is discharged or released from hospital care.§ 5.728(b), (d), (e). 

(xvii) General effective dates for awarding, reducing, or discontinuing VA benefits because of an election ....................... § 5.743. 

(xviii) Prohibition against receipt of active military service pay and VA benefits for the same period ................................. § 5.746(c), (d)(1). 

(xix) Procedures for elections between VA benefits and FECA compensation .................................................................... § 5.752(b). 

(xx) Effect of election of compensation under the Radiation Exposure Compensation Act of 1990 on payment of certain 

VA benefits.

§ 5.754(d). 

(xxi) Payment of multiple VA benefits to a surviving child based on the service of more than one veteran ....................... § 5.762(c)(6)(ii). 


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Effective date provision Part 5 location 

(xxii) Payment of dependents’ educational assistance (DEA) and VA pension or dependency and indemnity compensation (DIC) for the same period.§ 5.764(a)(3). 

(11) SUBPART M—APPORTIONMENTS TO DEPENDENTS AND PAYMENTS TO FIDUCIARIES AND INCARCERATED BENEFICIARIES 

(i) Effective date of apportionment grant or increase ............................................................................................................ § 5.783. 

(ii) Effective date of apportionment discontinuance or reduction .......................................................................................... § 5.784. 

(iii) Determinations of incompetency ..................................................................................................................................... § 5.791(d). 

(iv) Effective date after certification or when a beneficiary regains competency .................................................................. § 5.794. 

(v) Payments upon reaching age of majority ........................................................................................................................ § 5.795(b). 

(vi) Incarcerated beneficiaries—general provisions and definitions ...................................................................................... § 5.810(c). 

(vii) Discontinuance of pension during incarceration ............................................................................................................. § 5.813(b)(2). 

(viii) Apportionment where a primary beneficiary is incarcerated ......................................................................................... § 5.814(e). 

(ix) Resumptions of disability compensation, dependency and indemnity compensation, or death compensation upon a 

beneficiary’s release from incarceration.

§ 5.815(a), (b)(1), 

(c)(2). 

(x) Resumptions of pension upon a beneficiary’s release from incarceration ...................................................................... § 5.816(b), (c)(1). 

(Authority: 38 U.S.C. 501, 5110(a)) 

§ 5.151 Date of receipt. 

(a) General. The date of receipt of a 

document, claim, information, or 

evidence is the date on which it was 

received by VA, except as provided in 

paragraph (b) of this section, in specific 

provisions for claims or evidence 

received in a foreign country by a 

Department of State representative 

(§ 5.132(a)) or in the Social Security 

Administration (§§ 5.131(a) or 5.131(b)), 

or in rules of the Department of Defense 

relating to initial claims filed at or 

before separation. 

(b) Exception to date-of-receipt rule. 

VA may establish, by notice published 

in the Federal Register, exceptions to 

paragraph (a), using factors such as 

postmark or the date the claimant 

signed the correspondence, when VA 

determines that a natural or man-made 

interference with the normal channels 

through which VA ordinarily receives 

correspondence has resulted in one or 

more VA regional offices experiencing 

extended delays in receipt of 

documents, claims, information, or 

evidence from claimants served by the 

affected office or offices to an extent 

that, if not addressed, would adversely 

affect such claimants through no fault of 

their own. 

(Authority: 38 U.S.C. 501(a), 512(a), 5110) 

§ 5.152 Effective dates based on change of 

law or VA issue. 

(a) Effective date of award. Where 

pension, compensation, dependency 

and indemnity compensation, or a 

monetary allowance under 38 U.S.C. 

chapter 18 for an individual who is a 

child of a Vietnam veteran is awarded 

or increased pursuant to a liberalizing 

law, or a liberalizing VA issue approved 

by the Secretary or by the Secretary’s 

direction, the effective date of such 

award or increase shall be fixed in 

accordance with the date entitlement 

arose, but shall not be earlier than the 

effective date of the act or 

administrative issue. Where pension, 

compensation, dependency and 

indemnity compensation, or a monetary 

allowance under 38 U.S.C. chapter 18 

for an individual who is a child of a 

Vietnam veteran is awarded or 

increased pursuant to a liberalizing law 

or VA issue which became effective on 

or after the date of its enactment or 

issuance, in order for a claimant to be 

eligible for a retroactive payment under 

the provisions of this paragraph the 

evidence must show that the claimant 

met all eligibility criteria for the 

liberalized benefit on the effective date 

of the liberalizing law or VA issue and 

that such eligibility existed 

continuously from that date to the date 

of claim or administrative determination 

of entitlement. The provisions of this 

paragraph are applicable to original and 

reopened claims as well as claims for 

increase. 

(1) If a claim is reviewed on the 

initiative of VA within 1 year from the 

effective date of the law or VA issue, or 

at the request of a claimant received 

within 1 year from that date, benefits 

may be authorized from the effective 

date of the law or VA issue. 

(2) If a claim is reviewed on the 

initiative of VA more than 1 year after 

the effective date of the law or VA issue, 

benefits may be authorized for a period 

of 1 year prior to the date of 

administrative determination of 

entitlement. 

(3) If a claim is reviewed at the 

request of the claimant more than 1 year 

after the effective date of the law or VA 

issue, benefits may be authorized for a 

period of 1 year prior to the date of 

receipt of such request. 

(Authority: 38 U.S.C. 1822, 5110(g)) 

(b) Reduction or discontinuance of 

benefits. Where the reduction or 

discontinuance of an award is in order 

because of a change in law or a 

Department of Veterans Affairs issue, or 

because of a change in interpretation of 

a law or Department of Veterans Affairs 

issue, the payee will be notified at his 

or her latest address of record of the 

contemplated action and furnished 

detailed reasons therefor, and will be 

given 60 days for the presentation of 

additional evidence. If VA receives no 

additional evidence within the 60-day 

period, or the evidence received does 

not demonstrate that the proposed 

action should not be taken, the award 

will be reduced or discontinued 

effective the last day of the month in 

which the 60-day period expired. 

(Authority: 38 U.S.C. 5112(b)(6)) 

§ 5.153 Effective date of awards based on 

receipt of evidence prior to end of appeal 

period. 

VA will consider information or 

evidence received before the expiration 

of the period for initiating or perfecting 

an appeal to the Board, or before the 

Board renders a decision (if a timely 

appeal was filed), without regard to 

whether the information or evidence is 

‘‘new and material.’’ An award of the 

benefit sought based on that information 

or evidence is effective on the date 

prescribed by § 5.150. 

(Authority: 38 U.S.C. 501) 

§§ 5.154–5.159 [Reserved] 

General Rules on Revision of Decisions 

§ 5.160 Binding effect of VA decisions. 

(a) General rule. A decision of a duly 

constituted rating agency or other 

agency of original jurisdiction shall be 

binding on all field offices of the 

Department of Veterans Affairs as to 

conclusions based on the evidence on 

file at the time VA issues written 

notification in accordance with 38 

U.S.C. 5104. A binding agency decision 

shall not be subject to revision on the 

same factual basis except by duly 


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constituted appellate authorities or 

except as provided in §§ 5.161, 5.162, 

and 5.163 of this part. 

(b) Particular issues. A decision made 

by a Veterans Service Center on any one 

of the issues listed below is binding on 

the VA Insurance Center, and vice versa, 

unless the decision was based on clear 

and unmistakable error. Absent clear 

and unmistakable error, neither a 

Veterans Service Center nor the VA 

Insurance Center may change a decision 

of the other if doing so would involve 

applying the same criteria and be based 

on the same facts. The issues to which 

this paragraph (b) applies are: 

(1) Line of duty; 

(2) Character of discharge; 

(3) Relationship; 

(4) Dependency; 

(5) Domestic relations issues such as 

marriage, divorce, adoption and child 

custody and support; 

(6) Homicide; and 

(7) Findings of fact of death or 

presumption of death. 

(Authority: 38 U.S.C. 501) 

§ 5.161 Review of benefit claims decisions. 

(a) A claimant who has filed a timely 

Notice of Disagreement with a decision 

of an agency of original jurisdiction on 

a benefit claim has a right to review of 

that decision under this section. The 

review will be conducted by a Veterans 

Service Center Manager or Decision 

Review Officer, at VA’s discretion. An 

individual who did not participate in 

the decision being reviewed will 

conduct this review. Only a decision 

that has not yet become final (by 

appellate decision or failure to timely 

appeal) may be reviewed. Review under 

this section will encompass only 

decisions with which the claimant has 

expressed disagreement in the Notice of 

Disagreement. The reviewer will 

consider all evidence of record and 

applicable law, and will give no 

deference to the decision being 

reviewed. 

(b) Unless the claimant has requested 

review under this section with his or 

her Notice of Disagreement, VA will, 

upon receipt of the Notice of 

Disagreement, notify the claimant in 

writing of his or her right to review 

under this section. To obtain such a 

review, the claimant must request it not 

later than 60 days after the date VA 

mails the notice. This 60-day time limit 

may not be extended. If the claimant 

fails to request review under this section 

not later than 60 days after the date VA 

mails the notice, VA will proceed with 

the traditional appellate process by 

issuing a Statement of the Case. A 

claimant may not have more than one 

review under this section of the same 

decision. 

(c) The reviewer may conduct 

whatever development he or she 

considers necessary to resolve any 

disagreements in the Notice of 

Disagreement, consistent with 

applicable law. This may include an 

attempt to obtain additional evidence or 

the holding of an informal conference 

with the claimant. Upon the request of 

the claimant, the reviewer will conduct 

a hearing under § 5.82. 

(d) The reviewer may grant a benefit 

sought in the claim notwithstanding 

§ 5.163, but, except as provided in 

paragraph (e) of this section, may not 

revise the decision in a manner that is 

less advantageous to the claimant than 

the decision under review. A review 

decision made under this section will 

include a summary of the evidence, a 

citation to pertinent laws, a discussion 

of how those laws affect the decision, 

and a summary of the reasons for the 

decision. 

(e) Notwithstanding any other 

provisions of this section, the reviewer 

may reverse or revise (even if 

disadvantageous to the claimant) prior 

decisions of an agency of original 

jurisdiction (including the decision 

being reviewed or any prior decision 

that has become final due to failure to 

timely appeal) on the grounds of clear 

and unmistakable error (see § 5.162). 

(f) Review under this section does not 

limit the appeal rights of a claimant. 

Unless a claimant withdraws his or her 

Notice of Disagreement as a result of 

this review process, VA will proceed 

with the traditional appellate process by 

issuing a Statement of the Case. 

(g) This section applies to all claims 

in which a Notice of Disagreement is 

filed on or after June 1, 2001. 

(Authority: 38 U.S.C. 5109A, 7105(d)) 

§ 5.162 Revision of decisions based on 

clear and unmistakable error (CUE). 

(a) General. In the absence of clear 

and unmistakable error (CUE), VA will 

accept all final decisions as correct. 

Where evidence establishes such CUE, a 

prior decision will be reversed or 

revised. Review to determine whether 

CUE exists in a case may be instituted 

by VA on its own motion or upon 

request of the claimant. A request for 

revision of a VA decision based on CUE 

may be made at any time after that 

decision is made. 

Cross-reference: Explanation of what 

constitutes CUE and what does not. See 

§ 20.1403 of this chapter. 

(b) Effect of revision on benefits. For 

the purpose of granting benefits, a new 

decision that constitutes a reversal or 

revision of a prior decision on the 

grounds of CUE has the same effect as 

if the new decision had been made on 

the date of the prior decision. For 

effective dates for reductions or 

discontinuances, based on CUE, VA will 

apply § 5.165(c)(1). However, for 

reductions or discontinuances based on 

CUE resulting from an act of 

commission or omission by the 

beneficiary or with the beneficiary’s 

knowledge, VA will apply § 5.165(b). 

(Authority: 38 U.S.C. 5109A) 

§ 5.163 Revision of decisions based on 

difference of opinion. 

If the Veterans Service Center 

Manager (VSCM) within an agency of 

original jurisdiction (AOJ) believes that 

revision of a previous AOJ decision (that 

is not final and has not been the subject 

of a Substantive Appeal) is warranted, 

based on a difference of opinion, and 

that revision would lead to a more 

favorable decision on the claim that was 

the subject of that previous decision, the 

VSCM will recommend such revision to 

the Director of the Compensation and 

Pension Service of the Veterans Benefits 

Administration for a binding 

determination. 

(Authority: 38 U.S.C. 501) 

§ 5.164 Effective dates for revision of 

decisions based on difference of opinion. 

If a decision is revised based on 

difference of opinion under § 5.163, the 

effective date of the revision is the date 

the benefits would have been paid if the 

previous decision had been favorable. 

(Authority: 38 U.S.C. 501, 5110) 

§ 5.165 Effective dates for reduction or 

discontinuance of awards based on error. 

(a) Scope. The rules in this section 

apply when determining the proper 

effective date to assign for the reduction 

or discontinuance of VA benefits based 

on error. This section does not apply to 

a payment amount not authorized by a 

rating decision, such as a payment of an 

incorrect amount or a duplicative 

payment. Such amounts are 

overpayments, subject to recoupment. 

(b) Effective date of reduction or 

discontinuance based on beneficiary 

error. If an award was based on an act 

of commission or omission by the 

beneficiary or any act of omission or 

commission with the beneficiary’s 

knowledge, VA will pay a reduced rate 

or discontinue benefits effective the 

latest of the following dates: 

(1) The effective date of the award; 

(2) The date preceding the act of 

commission or omission; or 

(3) The date entitlement to the benefit 

ceased. 

(c) VA administrative error. (1) 

Effective date. Except as provided in 


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§ 5.177 (d) and (f), if an award was 

based solely on administrative error or 

an error in judgment by VA, VA will 

pay a reduced rate or discontinue 

benefits effective the first of the month 

that follows the month for which VA 

last paid benefits. 

(2) Administrative error or an error in 

judgment. Administrative errors or 

errors in judgment include: 

(i) Overlooking facts; 

(ii) Clerical errors; or 

(iii) Failure to follow or properly 

apply VA instructions, regulations, or 

statutes. 

(Authority: 38 U.S.C. 5112(b)(9) and (10)) 

§ 5.166 New and material evidence based 

on service department records. 

(a) Notwithstanding any other section 

in this part, at any time after VA issues 

a decision on a claim, if VA receives or 

associates with the claims file relevant 

official service department records that 

existed and had not been associated 

with the claims file when VA first 

decided the claim, VA will reconsider 

the claim, notwithstanding § 3.156(a). 

Such records include, but are not 

limited to: 

(1) Service records that are related to 

a claimed in-service event, injury, or 

disease, regardless of whether such 

records mention the veteran by name, as 

long as the other requirements of this 

§ 5.166 are met; 

(2) Additional service records 

forwarded by the Department of Defense 

or the service department to VA any 

time after VA’s original request for 

service records; and 

(3) Declassified records that could not 

have been obtained because the records 

were classified when VA decided the 

claim. 

(b) Paragraph (a) of this section does 

not apply to records that VA could not 

have obtained when it decided the 

claim because the records did not exist 

when VA decided the claim, or because 

the claimant failed to provide sufficient 

information for VA to identify and 

obtain the records from the respective 

service department, the Joint Services 

Records Research Center, or from any 

other official source. 

(c) An award made based all or in part 

on the records identified by paragraph 

(a) of this section is effective on the date 

entitlement arose or the date VA 

received the previously decided claim, 

whichever is later, or such other date as 

may be authorized by the provisions of 

this part applicable to the previously 

decided claim. 

(d) A retroactive rating of disability 

resulting from disease or injury 

subsequently service connected on the 

basis of the new evidence from the 

service department must be supported 

adequately by medical evidence. Where 

such records clearly support the 

assignment of a specific rating over a 

part or the entire period of time 

involved, a retroactive rating will be 

assigned accordingly, except as it may 

be affected by the filing date of the 

original claim. 

(Authority: 38 U.S.C. 501(a)) 

§§ 5.167–5.169 [Reserved] 

General Rules on Protection or 

Reduction of Existing Ratings 

§ 5.170 Calculation of 5-year, 10-year, and 

20-year protection periods. 

(a) VA will apply the following 

principles in determining whether 

service connection has been ‘‘in effect’’

for the 10-year period in § 5.175 and 

whether a rating has been ‘‘continuous’’

for the 5-year period in § 5.171 or the 

20-year period in § 5.172. 

(b) A protection period begins on the 

effective date of the rating decision and 

ends on the date that service connection 

would be severed or the rating would be 

reduced, after due process has been 

provided. 

Cross-reference: Due process 

provisions for reducing compensation 

benefits or severing service connection. 

See § 5.176. 

(c) For purposes of §§ 5.171 and 

5.172, a rating is not continuous if 

benefits based on that rating are 

discontinued or interrupted because the 

veteran reentered active service. 

Cross-reference: Rule on 

discontinuance of awards based on 

reentry into active service. See 

§ 3.654(b). 

(d) A rating period may be protected 

even if the beneficiary did not receive 

VA compensation based on that rating. 

This includes a beneficiary whose 

payments were adjusted by deduction, 

recoupment, apportionment, reduction 

in compensation due to incarceration, or 

because the beneficiary elected to 

receive retirement pay. 

(e) A retroactive increase or award of 

service connection, including one made 

under § 5.162 of this part (revision 

based on clear and unmistakable error), 

which results in a veteran being rated or 

awarded service connection for a period 

of 5, 10, or 20 years will be protected 

under §§ 5.171, 5.175, and 5.172, 

respectively, of this part. This paragraph 

applies to any protection period, even if 

it includes a period based on a 

retroactive award. 

Cross-reference: Specific procedural 

due process in reducing ratings or 

severing service connection. See § 5.176. 

(Authority: 38 U.S.C. 110, 501, 1159) 

§ 5.171 Protection of 5-year stabilized 

ratings. 

(a) Purpose. VA will adjudicate cases 

affected by change of medical findings 

or diagnosis to produce the greatest 

degree of stability of disability ratings 

consistent with the laws and regulations 

governing disability compensation and 

pension. 

(b) Stabilized rating. For the purposes 

of this section, if a disability has been 

rated at or above a specific level for 5 

years or more, VA will consider it to be 

stabilized at that specific level. 

(c) Material improvement. VA will not 

reduce a stabilized rating unless there is 

evidence of material improvement. VA 

may reduce a stabilized rating when: 

(1) An examination shows sustainable 

material improvement, physical or 

mental, in the disability, as explained in 

paragraph (d) of this section; and 

(2) The evidence shows that it is 

reasonably certain that the material 

improvement will be maintained under 

the ordinary conditions of life. 

(d) How VA determines whether there 

has been material improvement. VA 

will consider the following when 

determining whether a disability has 

undergone material improvement: 

(1) In order to reduce a stabilized 

rating, there must be evidence of an 

examination demonstrating 

improvement. Examinations less 

complete than those on which payments 

were authorized or continued will not 

be used as a basis for reduction. A 

complete medical record includes all of 

the following, when such records exist: 

(i) The entire case history; 

(ii) Medical-industrial history; 

(iii) Records related to treatment of 

intercurrent diseases and exacerbations, 

including hospital reports, bedside 

examinations, examinations by 

designated physicians, and 

examinations that reflect the results of 

tests conducted by laboratory facilities 

and the cooperation of specialists in 

related lines; 

(iv) Private and VA medical 

examination records; and 

(v) Special examinations indicated as 

a result of general examination. 

(2) VA will not use only one 

examination as the basis for a reduction 

of stabilized ratings assigned to diseases 

that tend to show temporary or episodic 

improvement, unless the evidence of 

record clearly demonstrates sustained 

improvement. Diseases subject to 

temporary or episodic improvement 

include but are not limited to: 

(i) Arteriosclerotic heart disease; 

(ii) Bronchial asthma; 

(iii) Epilepsy; 

(iv) Gastric or duodenal ulcer; 

(v) Bipolar disorders or other 

psychotic reaction; 


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(vi) Anxiety disorders; 

(vii) Many skin diseases. 

(3) VA will not reduce a stabilized 

rating assigned to a disease that 

becomes comparatively symptom free 

(findings absent) after bed rest based on 

an examination that reflects the results 

of bed rest. 

(4) Material improvement will be held 

to exist only where, after full 

compliance with the procedure outlined 

in this paragraph (d), the medical record 

clearly demonstrates that the disability 

does not meet the requirements for the 

currently assigned disability rating. 

(5) Where there is evidence of a 

change in diagnosis, VA will follow 38 

CFR 4.13 (‘‘Effect of change of 

diagnosis’’), as well as this section. VA 

will consider whether evidence of a 

change in diagnosis represents a 

progression of the previously diagnosed 

condition, an error in prior diagnosis, or 

a disease entity independent of the 

service-connected disability. When a 

new diagnosis reflects only a mental 

deficiency or personality disorder, VA 

will consider the possibility of 

temporary remission of a super-imposed 

psychiatric disease. 

(6) When syphilis of the central 

nervous system or alcoholic 

deterioration is diagnosed following a 

long prior history of psychosis, 

psychoneurosis, epilepsy, or the like, it 

is rarely possible to exclude persistence, 

in masked form, of the preceding 

innocently acquired manifestations. 

(e) Reexamination. If VA cannot 

conclude that a reduction is warranted 

after considering the evidence as 

described in paragraphs (c) and (d) of 

this section, VA will continue the rating 

in effect, citing the former diagnosis 

with the new diagnosis, if any, in 

parentheses, with a notation that the 

rating will be continued pending 

reexamination to be conducted on a date 

to be determined on the basis of the 

facts of each individual case. 

(Authority: 38 U.S.C. 501) 

Cross-reference: For specific 

procedural due process in reducing 

ratings, see § 5.176. 

§ 5.172 Protection of continuous 20-year 

ratings. 

(a) Compensation rating. If a disability 

has been rated at or above a specific 

level for 20 years, VA may not reduce 

the rating below such level unless the 

rating was based on fraud. 

(b) Pension rating. VA will not reduce 

a permanent total disability rating for 

pension purposes that has been 

continuously in effect for 20 or more 

years, unless the rating was based on 

fraud. 

(c) Effect of election regarding receipt 

of disability compensation. The 

provisions of paragraph (a) or (b) of this 

section apply whether or not the veteran 

elects to receive disability compensation 

or pension during all or any part of the 

20-year period. 

(Authority: 38 U.S.C. 110) 

§ 5.173 Protection against reduction of 

disability ratings when revisions are made 

to the Schedule for Rating Disabilities. 

(a) General. VA will not reduce a 

disability rating in effect on the effective 

date of a revision of the applicable 

Schedule for Rating Disabilities unless 

medical evidence establishes that the 

rated disability has actually improved, 

except when the rating was assigned 

under the 1925 Schedule of Disability 

Ratings (as provided in paragraph (b) of 

this section). 

(Authority: 38 U.S.C. 1155) 

(b) Ratings under 1925 Schedule. (1) 

VA will reduce a rating that was 

assigned under the 1925 Schedule of 

Disability Ratings that was the basis of 

compensation on April 1, 1946, when 

the rated disability has undergone a 

sustained material improvement that 

would have required a reduction under 

the 1925 Schedule. 

(2) Subject to paragraph (b)(3) of this 

section, VA will modify a rating that 

was assigned under the 1925 Schedule 

when an increased rating is appropriate 

under the Schedule for Rating 

Disabilities in part 4 of this chapter. 

After such modification, VA will assign 

all future ratings of that disability under 

the Schedule for Rating Disabilities in 

part 4 of this chapter. The increase in 

disability level must not be temporary 

(due to hospitalization, surgery, etc.). If 

a temporary increased rating is assigned, 

VA will restore the prior rating under 

the 1925 Schedule after the period of 

increase has elapsed unless: 

(i) The permanent residuals require 

reduction under the 1925 Schedule; or 

(ii) An increased rating is appropriate 

under the Schedule for Rating 

Disabilities in part 4 of this chapter. 

(3) VA will not increase a rating 

assigned under the 1925 Schedule when 

the changed condition represents an 

increased degree of disability under 

either the 1925 Schedule or the 

Schedule for Rating Disabilities in part 

4 of this chapter, but the rating provided 

by the Schedule for Rating Disabilities 

in part 4 of this chapter is less than the 

rating in effect under the 1925 Schedule 

on April 1, 1946. 

Cross-reference: For procedural due 

process before reduction of rating under 

this section, see § 5.176. 

(Authority: 38 U.S.C. 501) 

§ 5.174 Protection of entitlement to 

benefits established before 1959. 

(a) Persons in receipt of or entitled to 

receive benefits on December 31, 1958. 

Any person receiving or entitled to 

receive benefits under any public law 

administered by VA on December 31, 

1958, may, except where there was 

fraud, clear and unmistakable error of 

fact or law, or misrepresentation of 

material facts, continue to receive such 

benefits as long as the conditions 

warranting such payment under those 

laws continue. VA will pay the greater 

benefit under the previous law or the 

corresponding current section of title 38 

U.S.C. in the absence of an election to 

receive the lesser benefit. 

(Authority: Section 10, Pub. L. 85–857) 

(b) Service connection established 

under prior laws. Awards of service 

connection and the rate of disability 

compensation paid under prior laws 

repealed by Public Law 85–56 are 

protected, provided that the conditions 

warranting such status and rate 

continue and the award was not based 

on fraud, misrepresentation of facts, or 

clear and unmistakable error. With 

respect to such protected awards, VA 

may award compensation and special 

monthly compensation under current 

law if such award would result in 

compensation payment at a rate equal to 

or higher than that payable on December 

31, 1957. Where a changed physical 

condition warrants re-rating of serviceconnected disabilities, the amounts of 

compensation and special monthly 

compensation will be determined under 

38 U.S.C. 1114. 

(Authority: Pub. L. 85–86; Pub. L. 85–857) 

§ 5.175 Protection or severance of service 

connection. 

(a) Protected service connection. (1) 

VA may not sever service connection 

that has been in effect for 10 years or 

more unless evidence shows that: 

(i) The original grant was obtained 

through fraud, or; 

(ii) It is clear from military records 

that the person identified as a veteran 

did not have the requisite qualifying 

military service or the veteran’s 

discharge from service is of a type to 

prevent service connection as described 

in § 5.30. 

(2) The protection afforded in this 

section extends to determinations of 

service connection that were the basis 

for grants of entitlement to dependency 

and indemnity compensation or death 

compensation. 

(b) Severance of service connection. 

(1) VA will sever service connection 

when evidence establishes that it is 

clearly and unmistakably erroneous (the 


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burden of proof being upon VA), subject 

to §§ 5.152 and 5.176. 

(2) A change in diagnosis may be 

accepted as a basis for severance of 

service connection if the examining 

physician or physicians or other proper 

medical authority certifies that, in the 

light of all accumulated evidence, the 

diagnosis that was the basis of the 

award of service connection is clearly 

erroneous. This certification must be 

accompanied by a summary of the facts, 

findings, and reasons supporting the 

conclusion that the diagnosis is 

erroneous. 

(Authority: 38 U.S.C. 1159, 5104) 

§ 5.176 Due process procedures for 

severing service connection or reducing or 

discontinuing compensation benefits. 

Except as provided in § 5.83(c), when 

VA is contemplating severing service 

connection or reducing or discontinuing 

compensation benefit payments 

(including those based on individual 

unemployability), VA will: 

(a) Prepare a rating proposing 

severance of service connection or 

reduction or discontinuance of 

compensation benefit payments and 

setting forth all material facts and 

reasons; 

(b) Consistent with § 5.83, notify the 

beneficiary at his or her latest address 

of record of the contemplated action and 

furnish detailed reasons therefor; and 

(c) Allow the beneficiary 60 days from 

the date of the notice proposing 

severance, reduction, or discontinuance, 

to present additional evidence to show 

that service connection should be 

maintained, the rating should not be 

reduced, or the benefits should remain 

intact. If VA receives no additional 

evidence within the 60-day period, or 

the evidence received does not 

demonstrate that the proposed action 

should not be taken, VA will notify the 

beneficiary that VA is severing service 

connection or reducing or discontinuing 

the benefit. 

(Authority: 38 U.S.C. 501, 1159) 

§ 5.177 Effective dates for severing service 

connection or discontinuing or reducing 

benefit payments. 

(a) Suspended awards. If an award has 

been suspended and it is determined 

that no additional payments are in 

order, VA will discontinue the award 

effective the first of the month that 

follows the month for which VA last 

paid benefits. 

(b) Running awards. If an award is 

running, VA will discontinue the award 

effective as appropriate under 

paragraphs (d) through (i) of this 

section. 

(c) Exceptions. This section does not 

apply if: 

(1) There is a change in law or a VA 

administrative issue or a change in 

interpretation of law or VA issue; if so, 

§ 5.152 applies (effective dates based on 

change of law or VA issue); 

(2) An award was erroneous due to an 

act of commission or omission by the 

beneficiary or with the beneficiary’s 

knowledge; if so, § 5.165(b) applies; or 

(3) An award was based solely on 

administrative error or an error in 

judgment by VA; if so, § 5.165(c) applies 

in cases other than severance of service 

connection under paragraph (d) of this 

section or reduction of compensation 

under paragraph (f) of this section. 

(d) Severance of service connection. 

This paragraph (d) applies when VA 

severs service connection. In such cases, 

two 60-day periods apply. After 

applying the 60-day notice period 

described in § 5.176, VA will sever 

service connection effective the first day 

of the month after a second 60-day 

period beginning on the day of notice to 

the beneficiary of the final decision. 

(e) Character of discharge or line of 

duty. This paragraph (e) applies when 

VA discontinues benefits based on a 

determination as to character of 

discharge or line of duty. In such cases, 

two 60-day periods apply. After 

applying the 60-day notice period 

described in § 5.176, VA will 

discontinue benefits effective the first 

day of the month after a second 60-day 

period beginning on the day of notice to 

the beneficiary of the final decision. 

(f) Disability compensation. This 

paragraph (f) applies when VA reduces 

or discontinues disability compensation 

because of a change in serviceconnected disability or employability 

status. In such cases, two 60-day periods 

apply. After applying the 60-day notice 

period described in § 5.176, VA will pay 

a reduced rate or discontinue 

compensation effective the first day of 

the month after a second 60-day period 

beginning on the day of notice to the 

beneficiary of the final decision. 

(g) Pension. This paragraph (g) applies 

when VA reduces or discontinues 

pension payments because of a change 

in disability or employability status. In 

such cases, VA will reduce the rate or 

discontinue pension effective the first 

day of the month after a second 60-day 

period beginning on the day of notice to 

the beneficiary of the final decision. 

(h) Chapter 18 monetary allowance. 

This paragraph (h) applies when VA 

reduces or discontinues payments of a 

monetary allowance under 38 U.S.C. 

chapter 18 for children with certain 

birth defects. In such cases, VA will pay 

a reduced rate or discontinue the 

monetary allowance effective the first 

day of the month that follows the end 

of the 60-day notice period concerning 

the proposed reduction or 

discontinuance. The 60-day notice 

period is the one described in § 5.176. 

(i) Other. The effective date for other 

reductions or discontinuances of benefit 

payments will be based upon the 

reasons for the change as described in 

§ 3.500 through § 3.503 of this chapter. 

(Authority: 38 U.S.C. 1110, 1131, 1117, 5112) 

§§ 5.178–5.179 [Reserved] 

[FR Doc. E7–9542 Filed 5–21–07; 8:45 am] 

BILLING CODE 8320–01–P 


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