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###### Department of Veterans Affairs

          - 38 CFR Part 3 
          - RIN 2900-AK00 

# AGENCY:

Department of Veterans Affairs. 

# ACTION:

Proposed rule. 

# SUMMARY:

This document proposes to amend Department of Veterans Affairs (VA) adjudication regulations concerning the proof necessary to establish occurrence of a stressor in claims for service connection of post-traumatic stress disorder (PTSD) resulting from personal assault. This amendment would provide that evidence other than the veteran's service records may be sufficient to establish the occurrence of the stressor. The proposed regulation also would require that VA not deny such claims without first advising claimants that evidence from sources other than a veteran's service records may prove the stressor occurred. This would make claimants aware of the types of evidence which might support their claims, and would give them an opportunity to obtain and submit such evidence. It would also ensure that VA will not deny claims simply because the claimants did not realize that certain types of evidence may be relevant and therefore failed to submit such evidence to VA. 

# DATES:

Comments must be received on or before December 15, 2000. 

# ADDRESSES:

                        Mail or hand-deliver written comments to: Director, Office of Regulations Management (02D), Department of Veterans Affairs, 810 Vermont Ave., NW, Room 1154, Washington, DC 20420; or fax comments to (202) 273-9289; or e-mail comments to “                        *OGCRegulations@mail.va.gov*                        ”. Comments should indicate that they are submitted in response to “RIN 2900-AK00.” All comments received will be available for public inspection in the Office of Regulations Management, Room 1158, between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday (except holidays).                     

# FOR FURTHER INFORMATION CONTACT:

Bill Russo, Regulations Staff, Compensation and Pension Service, Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420; telephone (202) 273-7210. 

# SUPPLEMENTARY INFORMATION:

Section 3.304(f) of 38 CFR states that service connection for PTSD requires medical evidence diagnosing the condition; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 

A claim for PTSD may be based upon a personal assault, including sexual assault. Many incidents of in-service personal assault are not officially reported, and veterans may find it difficult to produce evidence to prove the occurrence of this type of stressor. This proposed amendment addresses this difficulty by specifying that evidence from sources other than the veteran's service records may constitute credible supporting evidence of the in-service stressor, where the alleged stressor is a personal assault. 

                    VA's Adjudication Procedure Manual, M21-1, discusses the types of evidence which may be credible supporting evidence that the stressor occurred for PTSD claims involving an in-service personal assault. M21-1, Part III, par. 5.14c. and Part VI, par. 11.38. In                     *Patton*                    v.                     *West,*                    12 Vet. App. 272, 283 (1999), the U.S. Court of Appeals for Veterans Claims discussed paragraph 5.14c. of M21-1, Part III, referring to it as a “regulatory provision [ ].” We are proposing to amend VA's adjudication regulations at § 3.304(f) to specify the types of evidence, other than a veteran's service records, which may establish the occurrence of a personal assault during service.                 

This proposed amendment would recognize that in PTSD claims based on in-service assault, evidence from sources other than a veteran's service records may constitute credible supporting evidence of the stressor. Examples of such evidence include, but are not limited to: Records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals or physicians; and statements from family members, roommates, fellow service members or clergy. 

Evidence from these sources might include, for example, evidence of behavior changes following the personal assault. Examples of behavior changes that might result from a personal assault include, but are not limited to: A request by the veteran for a transfer to another military duty assignment; a change in work performance; substance abuse; episodes of depression, panic attacks or anxiety where there is no identifiable reason for the episodes; or unexplained economic or social behavior changes. 

The proposed regulation would also provide that VA will not deny a PTSD claim which is based on personal assault without first advising the claimant that evidence from alternative sources or evidence of behavior changes may constitute credible supporting evidence of the stressor. This would ensure that claimants are aware of the types of evidence which might support their claims and would give them an opportunity to obtain and submit such evidence. It would also ensure that VA will not deny claims simply because the claimants did not realize that certain types of evidence may be relevant and therefore failed to submit such evidence to VA. 

The proposed amendment also would state that VA may submit any evidence that it receives to an appropriate medical professional for an opinion as to whether it indicates that a personal assault occurred. Such an opinion may be necessary when evidence requires medical interpretation and analysis based on the portion of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, which concerns PTSD. 

This proposed amendment would also divide current § 3.304(f), regarding PTSD claims, into two new sub-paragraphs, one involving PTSD claims by combat veterans and the other concerning PTSD claims by former prisoners-of-war. No substantive change would be made by this aspect of the proposal. 

## OMB Review 

This proposed rule has been reviewed by OMB under Executive Order 12866. 

## 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. The reason for this certification is that these amendments would not directly affect any small entities. Only VA beneficiaries could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), these amendments are exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604. 

                        The Catalog of Federal Domestic Assistance program numbers are 64.100,                               ( print page 61133)                            64.101, 64.104, 64.105, 64.106, 64.109, and 64.110.                     

# List of Subjects in 38 CFR Part 3

      - Administrative practice and procedure
      - Claims
      - Disability benefits
      - Health care
      - Pensions
      - Veterans
      - Vietnam

Approved: July 17, 2000. 

Togo D. West, Jr., 

Secretary of Veterans Affairs. 

For the reasons set forth in the preamble, 38 CFR part 3 is proposed to be amended as follows: 

# PART 3—ADJUDICATION 

# Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation 

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

Authority:38 U.S.C. 501(a), unless otherwise noted. 2. In § 3.304, paragraph (f) is revised to read as follows: 

§ 3.304 

* * * * *

                            (f)                             *Post-traumatic stress disorder.*                            Service connection for post-traumatic stress disorder requires medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred.                         

(1) If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 

(2) If the evidence establishes that the veteran was a prisoner-of-war under the provisions of § 3.1(y) of this part and the claimed stressor is related to that prisoner-of-war experience, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 

(3) If a post-traumatic stress disorder claim is based on in-service personal assault, evidence from sources other than the veteran's service records may constitute credible supporting evidence of the stressor. Examples of such evidence include, but are not limited to: Records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals or physicians; and statements from family members, roommates, fellow service members or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence which may be found in these sources. Examples of behavior changes that may constitute credible supporting evidence of the stressor include, but are not limited to: A request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a post-traumatic stress disorder claim which is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical professional for an opinion as to whether it indicates that a personal assault occurred. 

(Authority: 38 U.S.C. 501(a), 1154(b)) 

[FR Doc. 00-26450 Filed 10-13-00; 8:45 am] 

BILLING CODE 8320-01-U