53744 Federal Register / Vol. 75, No. 169 / Wednesday, September 1, 2010 / Proposed Rules 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 5 

RIN 2900–AM07 

Service-Connected and Other 

Disability Compensation 

AGENCY: Department of Veterans Affairs. 

ACTION: Proposed rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) proposes to reorganize and 

rewrite in plain language its regulations 

concerning service-connected and other 

disability compensation. These 

revisions are proposed as part of VA’s 

reorganization of all of its compensation 

and pension regulations in a logical, 

claimant-focused, and user-friendly 

format. The intended effect of the 

proposed revisions is to assist 

claimants, beneficiaries, and VA 

personnel in locating and understanding 

these regulations. 

DATES: Comments must be received by 

VA on or before November 1, 2010. 

ADDRESSES: Written comments may be 

submitted through http:// 

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

Management (02REG), Department of 

Veterans Affairs, 810 Vermont Ave., 

NW., Room 1068, Washington, DC 

20420; or by fax to (202) 273–9026. 

Comments should indicate that they are 

submitted in response to ‘‘RIN 2900– 

AM07—Service-Connected and Other 

Disability Compensation.’’ 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 (not a toll-free number) 

for an appointment. In addition, during 

the comment period comments may be 

viewed online through the Federal 

Docket Management System (FDMS) at 

http://www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

William F. Russo, Director of 

Regulations Management (02REG), 

Department of Veterans Affairs, 810 

Vermont Avenue, NW., Washington, DC 

20420, or call (202) 273–9515 (not a tollfree number). 

SUPPLEMENTARY INFORMATION: The 

Secretary of Veterans Affairs established 

the Office of Regulation Policy and 

Management to provide centralized 

management and coordination of VA’s 

rulemaking process. One of the major 

functions of this office is to oversee a 

Regulation Rewrite Project (the Project) 

to improve the clarity and consistency 

of existing VA regulations. The Project 

was created in response 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 

staff assigned to 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 

service-connected and other disability 

compensation. 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 Proposed Part 5 Rules with 

Current Part 3 Rules 

Content of Proposed Regulations 

Service-Connected and Other Disability 

Compensation 

5.240 Disability compensation. 

5.241 Service-connected disability. 

5.242 General principles of service 

connection. 

5.243 Establishing service 

connection. 

5.244 Presumption of sound 

condition. 

5.245 Service connection based on 

aggravation of preservice injury or 

disease. 

5.246 Secondary service 

connection—disability that is 

proximately caused by serviceconnected disability. 

5.247 Secondary service 

connection—nonservice-connected 

disability aggravated by serviceconnected disability. 

5.248 Service connection for 

cardiovascular disease secondary to 

service-connected lower extremity 

amputation. 

5.249 Special service connection 

rules for combat-related injury or 

disease. 

5.250 Service connection for 

posttraumatic stress disorder. 

5.251 Current disabilities for which 

VA cannot grant service connection. 

Rating Service-Connected Disabilities 

5.280 General rating principles. 

5.281 Multiple 0-percent serviceconnected disabilities. 

5.282 Special consideration for 

paired organs and extremities. 

5.283 Total and permanent total 

ratings and unemployability. 

5.284 Total disability ratings for 

disability compensation purposes. 

5.285 Continuance of total disability 

ratings. 

Additional Disability Compensation 

Based on a Dependent Parent 

5.300 Establishing dependency of a 

parent. 

5.302 General income rules— 

parent’s dependency. 

5.303 Deductions from income— 

parent’s dependency. 

5.304 Exclusions from income— 

parent’s dependency. 

Disability Compensation Effective Dates 

5.311 Effective dates—award of 

disability compensation. 

5.312 Effective dates—increased 

disability compensation. 

5.313 Effective dates— 

discontinuance of a total disability 

rating based on individual 

unemployability. 

5.314 Effective dates— 

discontinuance of additional 

disability compensation based on 

parental dependency. 

5.315 Effective dates—additional 

disability compensation based on 

decrease in the net worth of a 

dependent parent. 

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 new part 5 

regulations so that most provisions 

governing a specific benefit are located 

in the same subpart, with general 

provisions pertaining to all 

compensation and pension benefits also 

grouped together. This organization will 

allow claimants, beneficiaries, and their 

representatives, as well as VA 

adjudicators, 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 


hsrobinson on DSK69SOYB1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 169 / Wednesday, September 1, 2010 / Proposed Rules 53745 

5, delegations of authority, 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 

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 

claims and benefit application filing 

procedures, VA’s duties, rights and 

responsibilities of claimants and 

beneficiaries, general evidence 

requirements, and general effective 

dates for new awards, as well as 

revision of decisions and protection of 

VA ratings. This subpart was published 

in 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 on May 10, 2005. See 70 FR 

24680. The second, concerning general 

evidence requirements, effective dates, 

revision of decisions, and protection of 

existing ratings, was published as 

proposed on May 22, 2007. See 72 FR 

28770. The third, concerning VA benefit 

claims, was published on April 14, 

2008. See 73 FR 2136. 

‘‘Subpart D—Dependents and 

Survivors’’ would inform readers how 

VA determines whether an individual is 

a dependent or a survivor for purposes 

of determining eligibility for VA 

benefits. 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 disability compensation, 

including direct and secondary service 

connection, and disability 

compensation paid pursuant to section 

1151, title 38, United States Code as if 

the disability were service connected. 

This subpart would inform readers how 

VA determines entitlement to service 

connection and entitlement to disability 

compensation. 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 

in three 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. The second, concerning special 

ratings, was published on October 17, 

2008. See 73 FR 62004. This NPRM, 

which includes regulations relating to 

service-connected and other disability 

compensation, is the third of the NPRMs 

making up Subpart E. 

‘‘Subpart F—Nonservice-Connected 

Disability Pensions and Death Pensions’’ 

would include information regarding 

the three types of nonservice-connected 

pension: Old-Law Pension, Section 306 

Pension, and Improved Pension. This 

subpart would also include those 

provisions that state how to establish 

eligibility and entitlement to Improved 

Pension, and the effective dates 

governing each type of pension. This 

subpart was published as 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. 

The portion concerning eligibility and 

entitlement requirements for Improved 

Pension was published as proposed on 

September 26, 2007. See 72 FR 54776. 

‘‘Subpart G—Dependency and 

Indemnity Compensation, Accrued 

Benefits, and Special Rules Applicable 

Upon Death of a Beneficiary’’ would 

contain regulations governing claims for 

dependency and indemnity 

compensation (DIC); accrued benefits; 

and various special rules that apply to 

the disposition of VA benefits, or 

proceeds of VA benefits, when a 

beneficiary dies. This subpart was 

published as two NPRMs due to its size. 

The portion concerning accrued 

benefits, special rules applicable upon 

the death of a beneficiary, and several 

effective date 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 was published 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, proposed 

regulations in subpart L were published 

in two separate NPRMs. The first, 

concerning payments to beneficiaries 

who are eligible for more than one 

benefit, was published as proposed on 

October 2, 2007. See 72 FR 56136. The 

second, concerning payments and 

adjustments to payments, was published 

on October 31, 2008. See 73 FR 65212. 

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 document citation (including 

the Regulation Identifier Number and 

Subject Heading) 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 this method will assist 

readers in understanding these 

proposed regulations where no part 5 

counterpart has yet been published. 

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 NPRMs. 

Overview of This Notice of Proposed 

Rulemaking 

This NPRM pertains to serviceconnected and other disability 

compensation. These regulations would 

be contained in proposed Subpart E of 


hsrobinson on DSK69SOYB1PROD with PROPOSALS2
53746 Federal Register / Vol. 75, No. 169 / Wednesday, September 1, 2010 / Proposed Rules 

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 regulations with 

substantive differences are proposed, as 

are some regulations that do not have 

counterparts in 38 CFR part 3. 

Table Comparing Proposed Part 5 Rules 

With Current Part 3 Rules 

The following table shows the 

relationship between the proposed 

regulations contained in this NPRM and 

the current regulations in part 3: 

Proposed part 5 section or paragraph 

Based in whole or in 

part on 38 CFR part 

3 section or paragraph (or ‘‘New’’) 

5.240(a) ..................... 3.4(a) and (b)(1). 

5.240(b) ..................... 3.4(b)(2). 

5.241 introduction ...... New. 

5.241(a) and (b) ........ 3.1(k), 3.303(a) first 

and second sentences. 

5.241(c) ..................... New. 

5.242(a) ..................... 3.303(a). 

5.242(b) ..................... 3.304(b)(3). 

5.243(a) ..................... New. 

5.243(b) ..................... 3.303(a) and (d). 

5.243(c) and (d) ......... 3.303(b). 

5.244(a) ..................... 3.304(b). 

5.244(b) ..................... New. 

5.244(c)(1) ................. 3.304(b)(1), first sentence. 

5.244(c)(2) ................. New. 

5.244(d)(1) ................. 3.304(b). 

5.244(d)(2) ................. New. 

5.245(a)(1) ................. 3.306(a). 

5.245(a)(2) ................. New. 

5.245(b)(1) ................. New. 

5.245(b)(2) ................. New. 

5.245(b)(3) ................. 3.306(b)(1). 

5.245(b)(4) ................. 3.306(b)(2). 

5.245(c) ..................... 3.306(b). 

5.246 ......................... 3.310(a). 

5.247 ......................... 3.310(b). 

5.248 ......................... 3.310(c). 

5.249(a)(1) ................. 3.102, 3.304(d). 

5.249(a)(2) ................. New. 

5.249(b) ..................... New. 

5.250(a) ..................... 3.304(f). 

5.250(b) ..................... New. 

5.250(c) ..................... 3.304(f)(1). 

5.250(d) ..................... 3.304(f)(2) and (4). 

5.250(e) ..................... 3.304(f)(3). 

5.250(f) ...................... 3.304(f)(5). 

5.251(a) ..................... 3.303(c). 

5.251(b)(1) through 

(3).

New. 

5.251(c) ..................... New. 

5.251(d) ..................... New. 

5.251(e) ..................... 3.380. 

5.280 ......................... 3.321(a), (b)(1), (3), 

and (c). 

5.281 ......................... 3.324. 

5.282(a) ..................... 3.383(a). 

5.282(b) ..................... 3.383(a)(1) through 

(5). 

5.282(c)(1) and (2) .... 3.383(b)(1). 

Proposed part 5 section or paragraph 

Based in whole or in 

part on 38 CFR part 

3 section or paragraph (or ‘‘New’’) 

5.282(c)(3) ................. 3.383(c). 

5.282(c)(4) ................. 3.383(d). 

5.283 ......................... 3.340. 

5.284 ......................... 3.341. 

5.285 ......................... 3.343(a) and (c). 

5.300(a)(1) ................. 3.250(a)(1) and (3). 

5.300(a)(2) ................. New. 

5.300(b) ..................... 3.250(a)(2). 

5.300(b)(1) ................. 3.250(b). 

5.300(b)(1)(i) .............. 3.250(b)(1). 

5.300(b)(1)(ii) ............. 3.250(c). 

5.300(b)(2)(i) .............. 3.250(a)(2). 

5.300(b)(2)(ii) ............. 3.250(b)(2). 

5.300(c) ..................... 3.250(b). 

5.300(d) ..................... 3.660(a)(1). 

5.300(e) ..................... 3.250(d). 

5.302(a) ..................... 3.262(a). 

5.302(b) ..................... 3.262(b), 3.262(e)(3). 

5.302(c) ..................... 3.261(a)(3), 

3.250(b)(2). 

5.302(d) ..................... 3.262(k)(1) and (2). 

5.302(e) ..................... 3.262(k)(2) and (3). 

5.303(a) ..................... 3.262(a)(2). 

5.303(b) ..................... 3.261(a)(24), 

3.262(i)(1) and 

(j)(4). 

5.303(c) ..................... 3.262(a)(1). 

5.304 introduction ...... New. 

5.304(a) ..................... 3.261(a)(7). 

5.304(b)(1) ................. 3.262(h)(1). 

5.304(b)(2) ................. 3.262(h)(2). 

5.304(b)(3) ................. 3.262(h)(3). 

5.304(b)(4) ................. 3.262(h)(4). 

5.304(c) ..................... 3.261(a)(12). 

5.304(d), except (d)(6) 3.261(a)(20). 

5.304(d)(6) ................. New. 

5.304(e) ..................... 3.261(a)(20). 

5.304(f) ...................... 3.261(a)(13). 

5.304(g) ..................... 3.261(a)(28), 3.262(t), 

and 3.262(t)(2). 

5.304(h) ..................... 3.262(k)(4). 

5.304(i) ...................... 3.261(a)(31). 

5.304(j) ...................... 3.262(a)(2), last sentence. 

5.304(k) ..................... 3.261(a)(22). 

5.304(l) ...................... 3.261, 3.262. 

5.311 ......................... 3.400(b)(2). 

5.312(a) ..................... New. 

5.312(b) ..................... 3.400(o)(2). 

5.313(a) ..................... New. 

5.313(b) ..................... 3.501(e)(2). 

5.313(c) ..................... 3.501(f). 

5.314(a) ..................... New. 

5.314(b) ..................... 3.500(h), 3.660(a)(2). 

5.314(c) ..................... 3.500(h), 3.500(n)(2), 

3.660(a)(2). 

5.314(d) ..................... 3.500 (g)(2), 

3.500(h), 

3.660(a)(2). 

5.315 ......................... 3.660(d). 

Readers who use this table to compare 

the proposed provisions with the 

existing regulatory 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 addressed 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 repeated in 

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 

Service-Connected and Other Disability 

Compensation 

Section 5.240 Disability Compensation 

The first proposed regulation in this 

NPRM, based on current § 3.4(a) and (b), 

would provide a definition of ‘‘disability 

compensation’’ and a rule concerning 

additional disability compensation 

payable to veterans who have 

dependents. The material in current 

§ 3.4(a) about the death compensation 

program will have no counterpart in 

part 5. VA currently pays death 

compensation to fewer than 300 

beneficiaries. Except for one small 

group of beneficiaries covered under 

§ 3.4(c)(2), death compensation is 

payable only if the veteran died prior to 

January 1, 1957. VA has not received a 

claim for death compensation in over 10 

years, and we do not expect to receive 

such claims any more. We intend to 

revise proposed § 5.0, 71 FR 16464 (Mar. 

31, 2006), the scope provision for part 

5, to provide direction that any new 

claims for death compensation or 

actions concerning death compensation 

benefits be adjudicated under part 3. 

The proposed definition of ‘‘disability 

compensation’’ in § 5.240(a) would be 

simpler than the rules in current § 3.4(a) 

and (b)(1), because it does not 

unnecessarily repeat information found 

elsewhere. For example, current § 3.4(a) 

states that ‘‘[i]f the veteran was 

discharged or released from service, the 

discharge or release must have been 

under conditions other than 

dishonorable.’’ Similarly, current 

§ 3.1(d) defines ‘‘[v]eteran’’ to mean ‘‘a 

person who served in the active 

military, naval, or air service and who 

was discharged or released under 

conditions other than dishonorable.’’ 


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Federal Register / Vol. 75, No. 169 / Wednesday, September 1, 2010 / Proposed Rules 53747 

The proposed part 5 definition of 

‘‘veteran’’ in § 5.1 includes the same 

information as current § 3.1(d). See 71 

FR at 16474. Therefore, we propose not 

to repeat the information in § 5.240. 

Comparing current §§ 3.4(b)(1) and 

3.1(k) reveals another example of 

unnecessary repetition. Section 3.4(b)(1) 

states the rule for basic entitlement to 

disability compensation in terms of a 

service-connected disability, while 

current § 3.1(k) defines ‘‘serviceconnected’’ with respect to disability as 

meaning that ‘‘such disability was 

incurred or aggravated * * * in line of 

duty in the active military, naval, or air 

service.’’ Section 5.241 in this NPRM 

would define ‘‘service-connected 

disability’’ based on current § 3.1(k). We 

propose to state the definition of 

service-connected disability once, in 

proposed § 5.241 below. 

In addition, proposed § 5.240(a) 

would define disability compensation to 

include compensation for a disability 

that is treated ‘‘as if’’ it were service 

connected under 38 U.S.C. 1151, 

‘‘Benefits for persons disabled by 

treatment or vocational rehabilitation’’. 

Thus, ‘‘disability compensation’’ in part 

5 would be distinguishable from 

‘‘service-connected disability 

compensation’’. In most cases, the 

procedures governing the payment of 

disability compensation are the same, 

regardless of whether compensation is 

authorized by 38 U.S.C. 1110, 1131, or 

1151. However, where it is important to 

distinguish between them, our part 5 

regulations will do so either by 

specifically discussing section 1151 or 

by placing the descriptor ‘‘serviceconnected’’ before the words ‘‘disability 

compensation.’’ See, e.g., proposed 

§ 5.20(b), 69 FR 4820 (Jan. 30, 2004). A 

more complete explanation of what 

constitutes a ‘‘service-connected 

disability’’ would be set out in the next 

proposed regulation in this NPRM, 

§ 5.241. Therefore, proposed § 5.240(a) 

would cross-reference that rule. 

Current § 3.4(b)(2) provides that 

additional compensation may be paid to 

a veteran with a dependent if the 

veteran has ‘‘disability evaluated as 30 

per centum or more disabling.’’ VA has 

consistently interpreted the authorizing 

statute, 38 U.S.C. 1115, as authorizing 

additional disability compensation for a 

dependent whether the veteran has at 

least a 30-percent rating for a single 

disability or for combined disabilities. 

Proposed § 5.240(b) would make this 

interpretation explicit by stating that 

‘‘[a]dditional disability compensation is 

payable to a veteran who has a spouse, 

child, or dependent parent if the veteran 

is entitled to disability compensation 

based on a single or a combined 

disability rating of 30 percent or more.’’ 

In § 5.240(b) we would also clarify the 

relationship between the additional 

disability compensation that section 

1115 authorizes and the rates of 

disability compensation under 38 U.S.C. 

1114. Section 1114 provides the rates 

and amounts of service-connected 

disability compensation. The additional 

disability compensation that section 

1115 authorizes is above and beyond 

any rate that section 1114 authorizes. 

The second sentence of § 5.240(b) would 

state that ‘‘[t]he additional disability 

compensation authorized by 38 U.S.C. 

1115 is payable in addition to monthly 

disability compensation payable under 

38 U.S.C. 1114.’’ 

Section 5.241 Service-Connected 

Disability 

Proposed § 5.241, which would 

explain when a disability is considered 

to be ‘‘service connected’’, would be 

based on current § 3.1(k) and the first 

two sentences of current § 3.303(a). The 

portion of the definition in current 

§ 3.1(k) that relates to service-connected 

death was addressed in proposed 

Subpart G of part 5, in a separate NPRM. 

See 70 FR at 61342. 

In the introductory sentence, we 

would clarify that a service-connected 

disability must be a ‘‘current disability’’. 

See Disabled Am. Veterans v. Sec’y of 

Veterans Affairs, 419 F.3d 1317, 1318 

(Fed. Cir. 2005) (DAV) (‘‘[g]enerally, a 

veteran who claims entitlement to 

disability compensation benefits must 

show * * * a current disability’’); see 

also Hogan v. Peake, 544 F.3d 1295, 

1297 (Fed. Cir. 2008) (‘‘[t]o establish a 

right to benefits, a veteran must show 

that a current disability is ‘service 

connected’ ’’ (citing DAV)). Although 

neither § 3.1(k) nor § 3.303(a) refers to a 

‘‘current disability’’, the U.S. Court of 

Appeals for the Federal Circuit (Federal 

Circuit) has held that VA’s 

interpretation of 38 U.S.C. 1110 and 

1131, which govern entitlement to 

service connection, as requiring a 

current disability to establish service 

connection is reasonable. See Gilpin v. 

West, 155 F.3d 1353, 1356 (Fed. Cir. 

1998) (holding that VA’s interpretation 

of 38 U.S.C. 1110 as requiring a current 

disability is reasonable because ‘‘[m]any 

of the statutes governing the provision 

of benefits for veterans only allow such 

benefits be given for disability existing 

on or after the date of application’’) 

(citing 38 U.S.C. 5110(a), 5111(a), 1710, 

and 1712); Degmetich v. Brown, 104 

F.3d 1328, 1332 (Fed. Cir. 1997) (same 

as to VA’s interpretation of 38 U.S.C. 

1131). Thus, the inclusion of a ‘‘current 

disability’’ requirement would codify 

these court holdings but would not 

produce a different result for claims 

adjudicated under part 5. 

Proposed paragraph (a) would 

essentially repeat the content of current 

§ 3.1(k) and the first two sentences of 

current § 3.303(a). We would clarify that 

a service-connected disability must have 

been ‘‘caused by an injury or disease 

incurred, or presumed to have been 

incurred, in the line of duty during 

active military service.’’ 

Proposed paragraph (b) would 

incorporate the principle of aggravation, 

which is also included in § 3.1(k). We 

would state the principle in a separate 

paragraph in order to clearly indicate 

that it is separate from evidence of 

incurrence, which would be governed 

by § 5.241(a). 

In proposed paragraph (c), we would 

include in the definition of ‘‘serviceconnected disability’’ a disability that is 

secondary to a service-connected 

disability. This should help convey that 

secondary service connection is a type 

of service connection and that 

regulatory references to a ‘‘serviceconnected disability’’ include a 

secondarily service-connected 

disability. This principle is not 

contained in § 3.1(k) specifically but is 

generally established by current 

§ 3.310(a). Therefore, this would not be 

a substantive change from current 

practice. 

Section 5.242 General Principles of 

Service Connection 

Proposed § 5.242 would be the part 5 

counterpart to two general principles 

VA applies in adjudicating claims for 

service connection. The first, based on 

38 U.S.C. 1154(a), would pertain to VA’s 

consideration in service connection 

claims of the places, types, and 

circumstances of the veteran’s service. 

The second, based on 10 U.S.C. 1219, 

would pertain to VA’s consideration of 

certain statements a veteran might have 

signed in service. 

The third sentence of current 

§ 3.303(a) states that ‘‘[e]ach disabling 

condition shown by a veteran’s service 

records, or for which he seeks a service 

connection must be considered on the 

basis of the places, types and 

circumstances of his service as shown 

by service records, the official history of 

each organization in which he served, 

his medical records and all pertinent 

medical and lay evidence.’’ Paragraph 

(a) of proposed § 5.242 would be 

derived from this sentence, which is 

derived almost verbatim from 38 U.S.C. 

1154(a). Section 1154(a) requires VA to 

give ‘‘due consideration * * * to the 

places, types, and circumstances of such 

veteran’s service as shown by such 


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veteran’s service record, the official 

history of each organization in which 

such veteran served, such veteran’s 

medical records, and all pertinent 

medical and lay evidence’’. We do not 

interpret this statute as adding to the 

evidence-gathering duties set forth in 38 

U.S.C. 5103A, which requires VA to 

make ‘‘reasonable efforts to obtain 

relevant records * * * that the claimant 

adequately identifies’’. 38 U.S.C. 

5103A(b)(1). 

The requirement that a claimant 

identify records with potentially 

relevant information is repeated in 

section 5103A(c)(3) and is consistent 

with the claimant’s duty to actively 

participate in the claims process. It 

would be far too burdensome to require 

VA to seek out, obtain, and review every 

official record regarding the unit(s) and 

circumstance(s) of every veteran’s 

service, and, more importantly, doing so 

in the vast majority of cases would be 

unproductive. Hence, proposed 

§ 5.242(a) would require VA to duly 

consider only ‘‘evidence of record’’ 

concerning matters such as the places, 

types, and circumstances of the 

veteran’s service and the history of 

organizations in which the veteran 

served, which would be consistent with 

current § 3.303(a) requiring VA to base 

its determinations as to service 

connection on the entire ‘‘evidence of 

record’’. 

The regulatory and statutory history 

of the third sentence of § 3.303(a) began 

in 1941, Public Law 77–361, 55 Stat. 

847. The statute required ‘‘that in each 

case where a veteran is seeking service 

connection for any disability[,] due 

consideration shall be given to the 

places, types, and circumstances of his 

service as shown by his service record, 

the official history of each organization 

in which he served, his medical records, 

and all pertinent medical and lay 

evidence.’’ VA implemented this 

language in 38 CFR 2.1077(b) (Cum. 

Supp. 1938–1943), using substantially 

the same language. 7 FR 1981 (Mar. 13, 

1942). VA regulations contained this 

same language until 1961, when VA 

revised it to read as it does in current 

§ 3.303(a). The regulatory history does 

not reveal why VA revised this 

language. 

We propose not to repeat in § 5.242(a) 

the phrase ‘‘[e]ach disabling condition 

shown by a veteran’s service records’’ 

for two reasons. First, the phrase creates 

a distinction between disabilities shown 

in a veteran’s service record and those 

not shown. This distinction is irrelevant 

because VA considers all service 

connection claims ‘‘on the basis of the 

places, types and circumstances’’ 

regardless of whether a disability is 

shown in the service record or in the 

evidence of record subsequent to 

service. Second, the phrase could be 

misconstrued to mean that, absent any 

claim by a veteran, VA has a duty to 

review service records to determine 

entitlement to service connection for 

‘‘[e]ach disabling condition’’ which 

might possibly exist. Congress did not 

intend to impose such a duty on VA 

when it enacted Public Law 77–361. 

Moreover, such a duty would impose an 

unreasonable burden on VA’s limited 

resources by requiring VA to comb 

through veterans’ service records for 

potential claims. 

Proposed § 5.242(b) would restate 

current § 3.304(b)(3), which provides 

that ‘‘[s]igned statements of veterans 

relating to the origin, or incurrence of 

any disease or injury made in service if 

against his or her own interest is of no 

force and effect if other data do not 

establish the fact’’ and that ‘‘[o]ther 

evidence will be considered as though 

such statement were not of record.’’ This 

rule is derived from 10 U.S.C. 1219, 

which states that ‘‘[a] member of an 

armed force may not be required to sign 

a statement relating to the origin, 

incurrence, or aggravation of a disease 

or injury that he has’’ and that ‘‘[a]ny 

such statement against his interests, 

signed by a member, is invalid.’’ 

The language of current § 3.304(b)(3) 

does not limit its application to cases 

involving the presumption of sound 

condition. Despite the fact that it falls 

under the ‘‘Presumption of soundness’’ 

subheading, we believe VA intended 

this provision to mirror section 1219 

and be applied broadly. Section 1219 

precludes a service department from 

using a statement of the sort the statute 

describes for any purpose. The statute 

does not describe a context in which 

such a statement by the servicemember 

would be invalid. We propose, by 

locating the rule in the section on 

general principles of service connection, 

to make clear that VA also applies the 

rule broadly. The remaining provisions 

of current § 3.304(b) are covered under 

proposed § 5.244, ‘‘Presumption of 

sound condition.’’ 

Proposed § 5.242(b) would resolve an 

ambiguity in the current rule and state 

the full scope of the statute while 

limiting its application to a statement 

that was against a veteran’s interest at 

the time he or she signed the statement. 

The current rule pertains only to a 

signed statement about ‘‘origin’’ or 

‘‘incurrence’’ of an injury or disease. The 

proposed rule would also pertain to a 

signed statement about ‘‘aggravation of 

an injury or disease,’’ which would be 

consistent with the statute. 

The current rule is unclear whether a 

veteran’s statement ‘‘against his or her 

own interest’’ means a statement that 

was against the veteran’s interest at the 

time the veteran signed it, or is against 

the veteran’s current interest. Specifying 

that VA will exclude a statement against 

the signer’s interest at the time signed 

ensures that the rule protects veterans 

against VA decisions based on possibly 

unreliable evidence. 

Current § 3.304(b)(3) bars VA 

consideration of a statement signed in 

service if against a veteran’s interest, 

which therefore permits VA to consider 

the statement if in the veteran’s interest. 

The proposed rule would likewise 

permit VA to consider a statement the 

veteran signed while in service if the 

statement was made in the veteran’s 

interest. The current rule bars VA 

consideration of a signed statement 

against the veteran’s interest to prove a 

fact ‘‘if other data do not establish the 

fact.’’ This logically permits VA to 

consider a statement made against a 

veteran’s interest if other data establish 

the fact. The proposed rule would 

remove this conditional permission for 

VA to consider a signed statement made 

against the veteran’s interest, which 

would make the rule simpler and easier 

to administer. VA could still consider 

the other data (that is, evidence) that 

establish the fact, rather than the 

statement made against the veteran’s 

interest. 

Section 5.243 Establishing Service 

Connection 

Proposed § 5.243 would state the 

general requirements for establishing 

service connection. It would be based 

on concepts in statutes, such as 38 

U.S.C. 101(16), 1110, and 1131, and 

current § 3.303, as interpreted and 

applied by the U.S. Court of Appeals for 

Veterans Claims (CAVC) and the Federal 

Circuit. It would not state the 

requirements for establishing secondary 

service connection, which are addressed 

in proposed §§ 5.246 and 5.247. 

Proposed § 5.243(a) would identify 

the three basic requirements for 

establishing service connection of a 

disability: Current disability, incurrence 

or aggravation of an injury or disease in 

service, and a causal link between the 

two. These principles, long embedded 

in veterans’ disability law, have been 

formally in use as a specific three-part 

test since 1995 when the CAVC 

articulated them in its decision in 

Caluza v. Brown, 7 Vet. App. 498, 505 

(1995). See Shedden v. Principi, 381 

F.3d 1163, 1166–67 (Fed. Cir. 2004) 

(affirming that the CAVC ‘‘has correctly 

noted that in order to establish service 

connection or service-connected 


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aggravation for a present disability the 

veteran must show: (1) The existence of 

a present disability; (2) in-service 

incurrence or aggravation of a disease or 

injury; and (3) a causal relationship 

between the present disability and the 

disease or injury incurred or aggravated 

during service’’ (citing Caluza)). Stating 

these principles, which reflect current 

law, would provide clear guidance as to 

the requirements for establishing service 

connection. 

Proposed § 5.243(a) would not in any 

way restore the well-grounded-claim 

requirement eliminated by section 4 of 

the Veterans Claims Assistance Act of 

2000, Public Law 106–475, 114 Stat. 

2098. That requirement, based on 38 

U.S.C. 5107 as it existed prior to passage 

of Public Law 106–475, set a wellgrounded-claim threshold that had to be 

met before VA was obligated to provide 

assistance to VA claimants in 

developing evidence to support their 

claims. See generally, Gilbert v. 

Derwinski, 1 Vet. App. 49, 55 (1991). 

The three Caluza requirements are 

foundational principles that stand apart 

from the now-eliminated wellgrounded-claim requirement. The courts 

still recognize the three-part test as a 

means of establishing service 

connection. See Shedden, 381 F.3d at 

1166–67 (noting that there are three 

elements that must be satisfied in order 

for an appellant to establish service 

connection: A present disability; inservice incurrence or aggravation of a 

disease or injury; and a causal 

relationship between the two). The 

proposed regulation would simply 

incorporate current law and practice in 

a straightforward manner by using 

currently accepted and understood 

terminology. 

Proposed paragraph (a) would include 

two notes. Note 1 would make clear that 

service records alone may be sufficient 

to meet all of the requirements listed in 

§ 5.243(a) when those records clearly 

show that an injury or disease incurred 

or aggravated in service produced 

disability that is permanent by its very 

nature. For example, VA would never 

require a veteran who had suffered an 

amputation of a limb during service to 

produce current evidence that the 

amputation currently exists or that it is 

causally related to the in-service 

amputation. 

Note 2 would make clear that VA 

recognizes that certain chronic diseases 

and chronic residuals of injury can have 

temporary remissions. It would provide 

that VA will not deny service 

connection for lack of a current 

disability solely because a chronic 

disease, or a chronic residual of an 

injury, enters temporary remission. The 

note would give examples of the types 

of chronic diseases and chronic 

residuals of injury subject to temporary 

remission. 

Proposed § 5.243(b) would be based 

on the second sentence of current 

§ 3.303(a) and on part of current 

§ 3.303(d). The second sentence of 

§ 3.303(a) provides that a veteran can 

establish that an injury or disease 

resulting in disability was incurred or 

aggravated in active military service ‘‘by 

affirmatively showing inception or 

aggravation during service or through 

the application of statutory 

presumptions.’’ Section 5.243(b) would 

restate the substance of the second 

sentence of § 3.303(a) as it relates to the 

second element of proof of service 

connection listed in proposed § 5.243(a). 

We would use the term ‘‘evidence’’ 

rather than ‘‘affirmatively showing,’’ 

because a fact can only be affirmatively 

shown with evidence. 

Current § 3.303(d) states that 

‘‘[s]ervice connection may be granted for 

any disease diagnosed after discharge, 

when all the evidence, including that 

pertinent to service, establishes that the 

disease was incurred in service.’’ We 

have rewritten this in proposed 

§ 5.243(b) to state that ‘‘[p]roof of 

incurrence of a disease during active 

military service does not require 

diagnosis during service if the evidence 

otherwise establishes that the disease 

was incurred in service.’’ The rewritten 

language maintains the current 

regulation’s caution to VA employees 

that an initial diagnosis after discharge 

from service does not preclude service 

connection. This would not be a 

substantive change. 

The phrase ‘‘all the evidence, 

including that pertinent to service’’ in 

current § 3.303(d) is redundant of the 

existing language in § 3.303(a), which 

provides that ‘‘[d]eterminations as to 

service connection will be based on 

review of the entire evidence of record’’ 

(emphasis added). It is a statutory 

requirement and fundamental to VA 

adjudications (except claims of clear 

and unmistakable error) that VA 

considers ‘‘all information and lay and 

medical evidence of record in a case’’. 

38 U.S.C. 5107(b). Proposed § 5.242(a) 

explicitly applies this principle to 

service connection claims. In Cosman v. 

Principi, 3 Vet. App. 503, 506 (1992), 

the CAVC concluded that the ‘‘all the 

evidence’’ language in § 3.303(d) does 

not mean that only positive evidence 

must be of record to support a finding 

that a disease was incurred in service 

when there is a post-service diagnosis, 

but rather means only that ‘‘all the 

evidence be considered and that the 

equipoise rule of 38 U.S.C. § 5107(b) 

applies to questions of service 

connection under [§ ] 3.303(d).’’ Id. 

Because the phrase ‘‘all the evidence, 

including that pertinent to service’’ in 

current § 3.303(d) provides no unique 

rule, we propose not to repeat it in 

§ 5.243(b). 

Proposed § 5.243(c)(1) would restate 

the first sentence of current § 3.303(b). 

This sentence states that VA will grant 

service connection for a current 

disability if competent evidence 

establishes that the veteran had a 

chronic disease in service, or within an 

applicable presumptive period, and that 

the current disability is the result of the 

same chronic disease, unless the 

veteran’s current disability is clearly 

due to an intercurrent cause. VA’s longstanding practice is to apply the 

principles of chronicity and continuity 

to residuals of injury. This practice 

provides a fair and efficient means to 

determine service connection in certain 

cases, and it is logical to apply these 

principles to injuries as well as to 

diseases. Therefore, proposed 

§ 5.243(c)(1) would also apply to an 

injury incurred or aggravated in service 

where the current disability is due to 

‘‘the chronic residuals of the same 

injury.’’ 

The third and second sentences of 

current § 3.303(b) would be restated as 

a Note to § 5.243(c)(2) with minor, 

nonsubstantive changes. 

Proposed § 5.243(d), based on 

portions of current § 3.303(b), would 

provide rules for establishing service 

connection based on the continuity of 

signs or symptoms. That is, if the 

chronicity provisions do not apply, VA 

will grant service connection if there is 

competent evidence of signs or 

symptoms of an injury or disease during 

service or the presumptive period, of 

continuing signs or symptoms, and of a 

relationship between the signs or 

symptoms demonstrated over the years 

and the veteran’s current disability. See 

Savage v. Gober, 10 Vet. App. 488, 498 

(1997). 

Current part 3 refers only to 

‘‘symptoms’’. We would add ‘‘signs’’ 

because the contemporary view of the 

medical profession distinguishes 

between signs and symptoms. A sign is 

‘‘any objective evidence of a disease, i.e., 

such evidence as is perceptible to the 

examining physician, as opposed to the 

subjective sensations (symptoms) of the 

patient.’’ Dorland’s Illustrated Med. 

Dictionary 1733 (31st ed. 2007). A 

symptom is ‘‘any subjective evidence of 

disease or of a patient’s condition, i.e., 

such evidence as perceived by the 

patient.’’ Id. at 1843. Subjective and 

objective evidence are equally relevant 

to establishing continuity of 


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symptomatology, and the inclusion of 

more specific terminology does not 

represent a departure from current VA 

practice. 

Section 5.244 Presumption of Sound 

Condition 

Proposed § 5.244 would assemble in 

one regulation the statutory and 

regulatory principles concerning the 

presumption of sound condition at entry 

into military service. For purposes of 

basic entitlement to wartime disability 

compensation, 38 U.S.C. 1111, 

‘‘Presumption of sound condition’’, 

states that ‘‘every veteran [who served 

during a period of war] shall be taken 

to have been in sound condition when 

examined, accepted, and enrolled for 

service, except as to defects, infirmities, 

or disorders noted at the time of the 

examination, acceptance, and 

enrollment, or where clear and 

unmistakable evidence demonstrates 

that the injury or disease existed before 

acceptance and enrollment and was not 

aggravated by such service.’’ Section 

1137 of title 38, U.S.C., ‘‘Wartime 

presumptions for certain veterans’’, 

extends this presumption to all veterans 

who served after December 31, 1946, 

including veterans who served during 

peacetime. 

In part 5, we would not repeat current 

§ 3.305, which implements the 

presumption of sound condition for 

veterans of entirely peacetime service 

before World War II. See 38 U.S.C. 1132, 

‘‘Presumption of sound condition’’. The 

presumption under section 1132 applies 

only to a very small and decreasing 

population of veterans. If a veteran of 

pre-World War II peacetime service 

initiates a claim for service connection 

after part 5 goes into effect, we would 

apply section 1132 without a specific 

implementing regulation. All generally 

applicable rules in part 5 for developing 

and evaluating evidence and rebutting 

presumptions would apply to claims 

from pre-World War II peacetime 

veterans. Neither section 1132 nor 38 

CFR 3.305 imposes an extraordinary 

burden on VA to rebut the presumption 

(compared to the statute and the current 

regulation applying the presumption of 

sound condition to veterans who served 

during or after World War II). See 38 

U.S.C. 1111; 38 CFR 3.304(b). A 

claimant would have the same 

assistance in developing a claim and the 

same protection against rebuttal of the 

presumption that he or she would have 

if we included a part 5 counterpart to 

§ 3.305. 

Proposed paragraph (a) would define 

the presumption of sound condition 

generally. Current § 3.304(b) states that 

‘‘[t]he veteran will be considered to have 

been in sound condition when 

examined, accepted and enrolled for 

service’’. We would describe the time as 

of which VA presumes a veteran was 

sound with the phrase ‘‘upon entry into 

active military service’’, rather than with 

the phrase ‘‘when examined, accepted 

and enrolled for service’’. This proposed 

phrase would be plain language with 

the same meaning as ‘‘when examined, 

accepted and enrolled for service.’’ In 

addition to its simplicity, the proposed 

phrase should prevent readers from 

mischaracterizing the examination as at 

the time of entry. Examinations for entry 

could have been some time prior to 

entry (as with entry through a deferred 

enlistment program), rather than 

contemporaneous with entry. 

Proposed paragraph (a) would state 

the limitations on the presumption more 

simply, and more consistently with the 

overall scheme of service connection, 

compared to the statute and current 

regulation. Where 38 U.S.C. 1111 

provides that a veteran is presumed to 

have been in sound condition ‘‘except as 

to defects, infirmities, or disorders 

noted at the time of the examination, 

acceptance, and enrollment’’, see also 

current § 3.304(b), we would state that 

the veteran is presumed to have been 

sound ‘‘except [for injury or disease] as 

noted in the report of a medical 

examination conducted for entry into 

active military service.’’ Precluding a 

presumption of sound condition for 

injury or disease noted in the entry 

examination report is consistent with 38 

U.S.C. 1110 and 1131, which authorize 

VA to pay disability compensation for 

‘‘disability resulting from personal 

injury suffered or disease contracted in 

line of duty, or for aggravation of a 

preexisting injury suffered or disease 

contracted in line of duty, in the active 

military * * * service’’. The proposed 

language would make it easier to 

understand how the presumption 

functions in the scheme of VA disability 

compensation than the part 3 language. 

Additionally, the change from ‘‘defects, 

infirmities, or disorders’’ to ‘‘injury or 

disease’’ affords consistency of terms 

among proposed § 5.241, defining 

service-connected disability; proposed 

§ 5.244, governing the presumption of 

sound condition; and proposed § 5.245, 

governing the presumption of 

aggravation. The language was chosen 

for consistency. VA does not intend it 

to expand or limit the scope of section 

1111. 

Proposed § 5.244(b) would follow 

long-standing VA practice and clarify 

that the presumption of sound condition 

attaches even if the military service 

department did not conduct an entry 

medical examination or if there is no 

record of an entry examination. To 

relate this rule to the authorizing 

statute, if there was no entry medical 

examination, then there could be no 

‘‘defects, infirmities, or disorders noted 

at the time of the examination, 

acceptance, and enrollment’’ that would 

serve to prevent the presumption from 

arising. See 38 U.S.C. 1111. The same 

reasoning would apply if there were no 

record of an entry examination. It is fair 

and reasonable to apply the 

presumption of sound condition the 

same way to a veteran whose record of 

examination is missing as to a veteran 

whose service records show no 

examination was done in connection 

with entry. 

Proposed § 5.244(c)(1) would be 

derived from current § 3.304(b)(1), 

which provides in part that ‘‘[h]istory of 

preservice existence of conditions 

recorded at the time of examination 

does not constitute a notation of such 

conditions but will be considered 

together with all other material evidence 

in determinations as to inception.’’ 

Proposed § 5.244(c)(2) would be new. 

It would clarify that the presumption of 

sound condition is rebuttable even if an 

entrance physical examination report 

shows that the examiner tested for and 

did not find the condition in question, 

provided that other evidence of record 

is sufficient to overcome the 

presumption. See Kent v. Principi, 389 

F.3d 1380, 1383 (Fed. Cir. 2004). 

Proposed paragraph (d) would state 

the statutory burden of proof for 

rebutting the presumption of sound 

condition. VA bears this burden. The 

paragraph would provide the standards 

VA must apply to determine whether 

the evidence meets this burden. The 

paragraph would be consistent with 

current § 3.304(b). Proposed paragraph 

(d)(1) would require, in the case of 

veterans with any wartime service and 

of veterans with peacetime service after 

December 31, 1946, clear and 

unmistakable evidence that the injury or 

disease both preexisted service and was 

not aggravated by service to rebut the 

presumption of sound condition at the 

time of entry into military service. 

Paragraph (d)(2) would refer the 

reader to proposed § 5.245, ‘‘Service 

connection based on aggravation of 

preservice injury or disease’’, for the 

substance of the rules governing 

whether service aggravated a preexisting 

injury or disease. Proposed § 5.245 

would implement the statutory 

presumption of aggravation. 38 U.S.C. 

1153. 

The Federal Circuit suggested that VA 

could meet the ‘‘not aggravated by 

[active military] service’’ element of 

rebuttal for the presumption of sound 


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condition under 38 U.S.C. 1111 with a 

standard similar to that contained in 38 

U.S.C. 1153. Wagner v. Principi, 370 

F.3d 1089, 1096 (Fed. Cir. 2004) (noting 

that ‘‘[t]he government may show a lack 

of aggravation by establishing that there 

was no increase in disability during 

service or that any ‘increase in disability 

[was] due to the natural progress of the’ 

preexisting condition’’ (quoting 38 

U.S.C. 1153)). 

We adopt this suggestion as it applies 

to veterans with any wartime service 

and of veterans with peacetime service 

after December 31, 1946. It is rational to 

treat aggravation consistently in the 

context of the presumption of sound 

condition and in the context of the 

presumption of aggravation. The 

significant difference is that in the 

context of the presumption of sound 

condition, VA must determine whether 

there was aggravation if the disability 

claimed for service connection was not 

noted on examination for entry. In the 

presumption of aggravation, VA must 

determine whether there was 

aggravation of the disability claimed for 

service connection if the injury or 

disease resulting in the disability was 

noted on examination for entry. The 

criteria for finding that active military 

service did not aggravate a preexisting 

injury or disease are the same for 

purposes of both rebutting the 

presumption of sound condition and 

rebutting the presumption of 

aggravation. We would state the criteria 

in detail in proposed § 5.245, which 

would govern the presumption of 

aggravation. The discussion of proposed 

§ 5.245, below, provides additional 

information about these factors. 

Current § 3.304(b)(1) and (b)(2) 

includes complex provisions concerning 

the factors VA considers in determining 

whether the presumption of sound 

condition has been rebutted. Among 

other things, these provisions include 

standards that could be construed as 

requiring VA employees adjudicating 

claims to use medical judgment. Among 

these are provisions for assessment of 

‘‘accepted medical principles,’’ ‘‘clinical 

factors,’’ the ‘‘clinical course,’’ and the 

like. The sentences containing the 

quoted language advise claim 

adjudicators to consider certain aspects 

of the evidence. However, it is now 

clear that VA employees may not 

exercise their own medical judgment in 

adjudicating disability compensation 

claims. See Gambill v. Shinseki, 576 

F.3d 1307, 1329 (Fed. Cir. 2009) (noting 

that ‘‘rating specialists are not permitted 

to make their own medical judgments’’); 

Colvin v. Derwinski, 1 Vet. App. 171, 

172 (Vet. App. 1991) (holding that, in 

making decisions, VA must consider 

only ‘‘medical evidence to support [its] 

findings rather than provide [its] own 

medical judgment.’’), overruled in part 

on other grounds, Hodge v. West, 155 

F.3d 1356, 1360 (Fed. Cir. 1998). 

Moreover, VA’s duty to assist claimants 

with their claims includes providing a 

medical examination or obtaining a 

medical opinion based upon a review of 

the evidence of record if VA determines 

it is necessary to decide the claim. 38 

U.S.C. 5103A(d); 38 CFR 3.159(c)(4). 

Therefore, we propose to omit 

provisions that might be misconstrued 

as requiring VA personnel adjudicating 

claims to exercise their own medical 

judgment or allowing VA to solicit a VA 

medical opinion when it is not 

necessary to decide the claim. 

As mentioned above in discussing 

§ 5.242(b), the proposed rewrite of the 

regulation implementing the 

presumption of soundness would not 

repeat current § 3.304(b)(3). 

Section 5.245 Service Connection 

Based on Aggravation of Preservice 

Injury or Disease 

Proposed § 5.245 would be derived 

from current § 3.306, ‘‘Aggravation of 

preservice disability’’. Current § 3.306(a) 

provides for the presumption of 

aggravation ‘‘where there is an increase 

in disability during [active military, 

naval, or air] service, unless there is a 

specific finding that the increase in 

disability is due to the natural progress 

of the disease’’, as does 38 U.S.C. 1153. 

Current § 3.306(b) then provides the 

standard of proof for rebutting the 

presumption by finding that the 

increase in severity of a preexisting 

disease was due to the natural progress 

of the disease, for veterans of wartime 

service or of peacetime service after 

December 21, 1946. 

We propose not to repeat in part 5 the 

current § 3.306(c) provisions for 

applying the presumption of aggravation 

to veterans of entirely peacetime service 

prior to World War II for the same 

reasons we propose not to repeat the 

presumption of sound condition as it 

applies to this population of veterans. 

In proposed § 5.245(a), based on 

current § 3.306(a), we would replace the 

phrase ‘‘active military, naval, or air 

service’’ with ‘‘active military service’’. 

‘‘Active military service’’ is defined in 

proposed § 5.1 as having the same 

meaning as ‘‘active military, naval, or air 

service’’. See 71 FR at 16473. We make 

this change throughout part 5. 

We would restate the presumption in 

the active voice to provide that ‘‘VA will 

presume that active military service 

aggravated a preexisting injury or 

disease if there was an increase in 

disability resulting from the injury or 

disease during service (or during any 

applicable presumptive period).’’ In 

addition to improving clarity, this 

restatement would put the focus of the 

regulation on the severity of disability, 

consistent with 38 U.S.C. 1153 and the 

basic scheme of VA disability 

compensation as being for disability. 38 

U.S.C. 1110, 1131. Section 1153 of title 

38, United States Code, provides that 

‘‘[a] preexisting injury or disease will be 

considered to have been aggravated by 

active military * * * service, where 

there is an increase in disability during 

such service * * *’’ (emphasis added). 

Current § 3.306(b), which explains how 

to implement the presumption of 

aggravation, states that ‘‘[a]ggravation 

may not be conceded where the 

disability underwent no increase in 

severity’’. 

Proposed § 5.245(a) would state the 

presumption and when the presumption 

applies. Paragraph (b) would prescribe 

how to determine whether the evidence 

in a claim triggers the presumption. 

Paragraph (c) would prescribe the 

standard of proof and factors VA must 

consider to rebut the presumption. 

To clarify when to apply the 

presumption of aggravation and when to 

apply the presumption of sound 

condition, proposed paragraph (a) 

would state that the presumption under 

§ 5.245 applies only ‘‘[w]hen an injury 

or disease was noted in the report of 

examination for entry into active 

military service.’’ This is so because, if 

an injury or disease was not noted in the 

report of examination for entry, the 

veteran would be presumed sound on 

entry as to that injury or disease and the 

injury or disease would not have 

preexisted active military service. 

The presumption of sound condition 

(proposed § 5.244(a)) would apply, 

unless it is rebutted. To rebut the 

presumption of sound condition as to 

any injury or disease, VA would have to 

determine by clear and unmistakable 

evidence that the injury or disease both 

preexisted service and was not 

aggravated by service. Thus, if VA 

determines that the presumption of 

sound condition has been rebutted as to 

an injury or disease, VA will necessarily 

have found by clear and unmistakable 

evidence that service did not aggravate 

the injury or disease, and the 

presumption of aggravation would not 

apply. Further, if service connection is 

granted based on application of the 

presumption of soundness in proposed 

§ 5.244, the disability rating principles 

in 38 CFR 4.22, ‘‘Rating of disabilities 

aggravated by active service’’, would not 

apply. See Wagner, 370 F.3d at 1096 

(‘‘However, if the government fails to 

rebut the presumption of soundness 


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under section 1111, the veteran’s claim 

is one for service connection. This 

means that no deduction for the degree 

of disability existing at the time of 

entrance will be made if a rating is 

awarded.’’). 

Proposed § 5.245(b)(1) through (b)(3) 

would provide points to consider in 

determining whether disability 

increased during service (or during any 

applicable presumptive period). Current 

§ 3.306(b) provides that ‘‘[a]ggravation 

may not be conceded where the 

disability underwent no increase in 

severity during service’’. The Federal 

Circuit has held that a disability is not 

presumed aggravated by service when 

there was no increase in the severity of 

disability during service. See, e.g., Davis 

v. Principi, 276 F.3d 1341, 1345 (Fed. 

Cir. 2002) (citation omitted). 

Proposed § 5.245(b)(3) would restate 

current § 3.306(b)(1). Proposed 

paragraphs (b)(1) and (b)(2) would be 

new. Paragraph (b)(1) would provide an 

explicit meaning for ‘‘increase in 

disability’’ as the term is used in 38 

U.S.C. 1153. Paragraph (b)(2) would 

provide that a temporary flare-up of a 

preexisting injury or disease is not an 

‘‘increase in disability’’. These 

paragraphs would be consistent with 

long-standing VA practice and judicial 

precedents holding that temporary flareups of symptoms are not ‘‘increase in 

disability’’ as the phrase is meant in 

section 1153. Davis, 276 F.3d at 1346 

(citing Maxson v. West, 12 Vet. App. 

453, 459 (1999); Verdon v. Brown, 8 Vet. 

App. 529, 537 (1996); Hunt v. 

Derwinski, 1 Vet. App. 292, 296 (1991)). 

Hunt established that temporary flareups of symptoms of a preexisting injury 

or disease in service are not an ‘‘increase 

in disability’’. 1 Vet. App. at 297. The 

Federal Circuit has stated that ‘‘[a] 

corollary to the Secretary’s usage [of 

‘disability’] is that an increase in 

disability must consist of worsening of 

the enduring disability and not merely 

a temporary flare-up of symptoms 

associated with the condition causing 

the disability.’’ Davis, 276 F.3d at 1344. 

In Maxson, 12 Vet. App. at 460, the 

CAVC held that the presumption of 

aggravation is applicable ‘‘only after it 

has been demonstrated * * * that a 

permanent increase in disability has 

occurred or, pursuant to section 

3.306(b)(2), has been deemed to have 

occurred.’’ (We discuss below the part 5 

counterpart of current § 3.306(b)(2), 

proposed paragraph (b)(4).) Codifying in 

part 5 judicial precedents that prescribe 

the meaning of ‘‘increase in disability’’ 

would help VA apply the presumption 

of aggravation consistently. The rules in 

proposed paragraphs (b)(1) and (b)(2) 

would codify these precedents. 

Proposed § 5.245(b)(2) would provide 

for an exception ‘‘as provided in 

paragraph (b)(4)’’. Proposed paragraph 

(b)(4) would provide a liberalized 

standard for the presumption of 

aggravation for combat veterans and 

former prisoners of war (POWs), which 

would be consistent with current 

§ 3.306(b)(2) and 38 U.S.C. 1154(b). The 

Federal Circuit has recognized that 

section 1154(b) affords combat veterans 

and former POWs different treatment 

and held that ‘‘evidence of temporary 

flare-ups symptomatic of an underlying 

preexisting [injury or disease], alone, is 

not sufficient for a non-combat veteran 

to show increased disability under [38 

U.S.C. 1153] unless the underlying 

condition is worsened.’’ Davis, 276 F.3d 

at 1346–47. Because a combat veteran or 

former POW is unlikely to have 

contemporaneous medical records of a 

development of signs or symptoms of a 

preexisting injury or disease, it would 

be difficult for a combat veteran or 

former POW to prove that a 

development of signs or symptoms of a 

preexisting injury or disease was of a 

permanent nature rather than just a 

temporary flare-up. 

Proposed § 5.245(b)(4) would be 

derived from the sentence of current 

§ 3.306(b)(2) about establishing 

aggravation with evidence of 

‘‘symptomatic manifestations of a 

preexisting disease or injury during or 

proximately following action with the 

enemy or following a status as a 

prisoner of war’’. We would use ‘‘signs 

or symptoms’’ rather than ‘‘symptomatic 

manifestations’’. As noted in our 

discussion of proposed § 5.243 above, 

the term ‘‘signs or symptoms’’ would be 

consistent with contemporary medical 

usage. See Dorland’s Illustrated Med. 

Dictionary at 1733 (defining ‘‘sign’’ in 

contrast to ‘‘symptom’’); see also 38 CFR 

3.317 (using ‘‘signs or symptoms’’ and 

defining ‘‘signs’’). We would use the 

term ‘‘signs or symptoms’’ throughout 

part 5. We would also use ‘‘combat’’ 

rather than ‘‘action with the enemy’’ 

because they mean the same thing and 

38 U.S.C. 1154(b) uses ‘‘combat’’. It 

would be appropriate to include this 

provision among factors for determining 

the severity of a disability increased in 

service because it would afford veterans 

of combat or of former prisoner-of-war 

status a specific evidentiary rule for 

finding aggravation of a preexisting 

injury or disease in exception to the 

temporary flare-up provision of 

proposed paragraph (b)(2). 

Proposed § 5.245(c), based on current 

§ 3.306(b), would address rebuttal of the 

presumption of aggravation. Section 

1153 provides that ‘‘[a] preexisting 

injury or disease will be considered to 

have been aggravated by active military, 

naval, or air service, where there is an 

increase in disability during such 

service, unless there is a specific finding 

that the increase in disability is due to 

the natural progress of the disease.’’ The 

statute does not specify whether a 

specific finding regarding natural 

progress prevents the application of the 

presumption of aggravation or rebuts the 

presumption. VA’s long-standing 

interpretation of § 1153 is that such a 

finding rebuts the presumption. 26 FR 

1561, 1581 (Feb. 24, 1961). The statute 

is also silent about natural progress of 

injuries. Consistent with section 1153, 

the rebuttal under proposed § 5.245(c) 

would apply to specific findings of 

natural progress to diseases, not to 

injuries. 

The statute does not define ‘‘natural 

progress’’. 38 U.S.C. 1153. The only 

regulatory definition of ‘‘natural 

progress’’ is in current § 3.306(c), 

‘‘Peacetime service prior to December 7, 

1941’’. Though the standard of proof to 

rebut the presumption is more stringent 

for wartime veterans or veterans who 

served after World War II than it is for 

pre-World War II peacetime veterans, 

VA does not construe ‘‘natural progress’’ 

to be something different between these 

groups of veterans. Therefore, the 

definition of ‘‘natural progress’’ in 

§ 5.245(c) would be derived from 

§ 3.306(c), which defines natural 

progress as ‘‘the increase in severity 

*** normally to be expected by 

reason of the inherent character of the 

condition’’ (emphasis added). This is a 

wordy way to say the increase in 

severity was normal for the condition, 

with ‘‘normal’’ meaning ‘‘conforming, 

adhering to, or constituting a typical or 

usual standard, pattern, level, or type.’’ 

Webster’s II New College Dictionary 746 

(Houghton Mifflin 2001 ed.). We intend 

no change in the meaning of ‘‘natural 

progress’’. The restatement in proposed 

§ 5.245(c) is not substantive. 

Part 5 would not repeat current 

§ 3.322. Section 3.322(a) addresses how 

to rate a disability that is service 

connected as aggravated in service. It is 

materially the same as, and redundant 

of, 38 CFR 4.22, which is in VA’s 

Schedule for Rating Disabilities in part 

4 of this chapter. In the flow of 

processing claims for VA disability 

compensation, VA must grant service 

connection before it determines a rate of 

disability compensation. VA cannot 

apply the rule in current § 3.322(a) until 

reaching the rating phase of a claim. 

Rules about how to determine a rate of 

disability compensation are more 

germane to part 4 than to part 5. There 

is no benefit to veterans to state the rule 

in two places, and it simplifies the rules 


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for obtaining service connection to omit 

a counterpart to § 3.322(a) from part 5. 

Current § 3.322(b) provides that, if an 

injury or disease incurred in peacetime 

service is aggravated during wartime 

service, or conversely, if an injury or 

disease incurred in wartime service is 

aggravated during peacetime service, the 

entire disability that results from the 

injury or disease will be service 

connected based on wartime service. 

Because there is no longer a distinction 

between wartime and peacetime rates of 

disability compensation, there is no 

current need to explain how to treat 

conditions incurred in wartime or 

peacetime service that are aggravated 

during peacetime or wartime service, 

respectively. The only situation in 

which payment of wartime versus 

peacetime disability compensation 

could arise presently would be in 

retroactive awards based on clear and 

unmistakable error. However, in such 

cases, VA must apply the version of 

§ 3.322 in effect at the time the 

erroneous decision was rendered, not 

the current version of that section. Since 

§ 3.322(b) no longer serves a useful 

purpose, we have not included similar 

material in part 5. 

Section 5.246 Secondary Service 

Connection—Disability That Is 

Proximately Caused by ServiceConnected Disability 

Proposed § 5.246 would be based on 

current § 3.310(a). To be consistent 

throughout part 5, proposed § 5.246 

would contain a few nonsubstantive 

differences from current § 3.310(a), 

including its use of the phrase 

‘‘proximately caused by’’ rather than 

‘‘proximately due to’’. 

In addition, proposed § 5.246 would 

refer to a service-connected ‘‘disability’’ 

rather than to a service-connected 

‘‘disease or injury’’ as used in current 

§ 3.310(a). This would not be a 

substantive change but, rather, would be 

the use of clear and consistent 

terminology. In part 3, we often refer to 

a ‘‘service-connected disease or injury’’ 

where, to be technically correct, we 

intend to refer to the disability for 

which VA actually grants service 

connection. As explained in this and 

other NPRMs, VA does not service 

connect an event that occurred during 

service; rather, VA service connects a 

current disability associated with such 

an event. We hope that using 

terminology that is more precise will 

eliminate any confusion on this point. 

We propose not to repeat the second 

sentence of current § 3.310(a), which 

states that ‘‘[w]hen service connection is 

thus established for a secondary 

condition, the secondary condition shall 

be considered a part of the original 

condition.’’ Regarding this sentence, the 

CAVC stated that, ‘‘[b]ased on the 

regulatory history, [the court] finds that 

the plain meaning of the regulation is 

and has always been to require VA to 

afford secondarily service-connected 

conditions the same treatment (no more 

or less favorable treatment) as the 

underlying service-connected 

conditions for all determinations.’’ 

Roper v. Nicholson, 20 Vet. App. 173, 

181 (2006); accord Ellington v. Peake, 

541 F.3d 1364, 1370 (Fed. Cir. 2008) 

(approving CAVC’s Roper decision 

construing § 3.310(a)). There is no 

statute or regulation pertaining to 

secondary service connection that 

inhibits a veteran’s rights, diminishes a 

veteran’s benefits, or reduces VA’s 

duties to a veteran as they relate to a 

secondarily service-connected 

disability. Consequently, the second 

sentence of § 3.310(a) conveys no 

benefit to the veteran who obtains 

secondary service connection for a 

disability. Its omission would infringe 

no rights. Rather, its omission would 

clarify that an award of secondary 

service connection would have its own 

disability rating and effective date 

separate from the underlying serviceconnected condition. Omitting the 

sentence would also simplify the 

secondary-service-connection 

regulation, consistent with that purpose 

of part 5. 

Section 5.247 Secondary Service 

Connection—Nonservice-Connected 

Disability Aggravated by ServiceConnected Disability 

Proposed § 5.247 would be derived 

from current § 3.310(b). It would restate 

the current rule in plain language. We 

intend no change in meaning. For the 

reasons discussed above in relation to 

proposed § 5.246, proposed § 5.247 

would use the phrase ‘‘proximately 

caused’’ rather than ‘‘proximately due 

to’’, and it would refer to a nonserviceconnected or service-connected 

‘‘disability’’ rather than to a nonserviceconnected or service-connected ‘‘disease 

or injury’’. 

Section 5.248 Service Connection for 

Cardiovascular Disease Secondary to 

Service-Connected Lower Extremity 

Amputation 

The rule concerning awards of 

secondary service connection for 

cardiovascular disease is currently 

stated in § 3.310(c). We propose to state 

this rule as a separate regulation in 

§ 5.248 because it is a discrete rule of 

secondary service connection that 

effectively establishes an irrebuttable 

presumption of service connection. We 

intend no substantive change. 

Section 5.249 Special Service 

Connection Rules for Combat-Related 

Injury or Disease 

Proposed § 5.249 would provide 

special service connection rules for 

veterans who served in combat. It would 

implement 38 U.S.C. 1154(b) and is 

based on current §§ 3.102 (last 

sentence), 3.304(d), and 3.305(c). The 

proposed rule would specifically clarify 

that VA will accept a combat veteran’s 

description of an event, disease, or 

injury in service as sufficient to 

establish that an injury or disease was 

incurred or aggravated in service. 

We would explicitly state that the 

regulation applies only to 

determinations of incurrence or 

aggravation of an injury or disease in 

service, whereas the current laws state 

that VA may accept lay evidence ‘‘as 

sufficient proof of service-connection.’’ 

38 U.S.C. 1154(b); see also 38 CFR 

3.304(d). Despite the language used in 

the current laws (that is, that lay 

evidence is ‘‘proof of service 

connection’’), VA does not generally 

allow a combat veteran’s lay evidence of 

an in-service injury, by itself, to 

establish a current disability or a nexus 

between that injury and a current 

disability. This interpretation of the 

authorizing statute and the 

implementing regulations is consistent 

with judicial precedent. See Collette v. 

Brown, 82 F.3d 389, 392 (Fed. Cir. 1996) 

(holding that ‘‘[s]ection 1154(b) does not 

create a statutory presumption that a 

combat veteran’s alleged disease or 

injury is service-connected’’ but, rather, 

still requires a veteran to ‘‘meet his 

evidentiary burden with respect to 

service connection’’ while ‘‘considerably 

lighten[ing] the burden’’). Also pursuant 

to section 1154(b), proposed § 5.249(a) 

would explicitly provide that the 

finding of incurrence or aggravation 

relating to combat with the enemy 

would be subject to rebuttal under a 

heightened ‘‘clear and convincing 

evidence’’ standard. 

Proposed paragraph (a)(2) would be 

new. Paragraph (a)(2) would codify the 

definition of ‘‘engaged in combat with 

the enemy’’ in VAOPGCPREC 12–99. 

Where the General Counsel uses the 

term ‘‘instrumentality’’, we would use 

the term ‘‘instrument or weapon’’, which 

is more readily understood. Whether 

any particular set of circumstances 

constitutes engagement in combat with 

the enemy for the purposes of 38 U.S.C. 

1154(b) must be resolved on a case-bycase basis. See VA General Counsel’s 

opinion, VAOPGCPREC 12–99, 65 FR 

6257, 6258, Feb. 8, 2000 (discussing the 


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meaning of ‘‘engaged in combat with the 

enemy’’ as used in 38 U.S.C. 1154(b)). 

Based on the plain language of 38 U.S.C. 

1154(b), the phrase ‘‘engaged in combat 

with the enemy’’ requires that the 

veteran have personally participated in 

events constituting an actual fight or 

encounter with a military foe or hostile 

unit or instrumentality. Id. We would 

add this clarification in proposed 

§ 5.249(a)(2). We also propose to clarify 

that participation in such events 

includes performing certain 

noncombatant duties, such as providing 

medical care to the wounded. 

Proposed § 5.249(b) would be a new 

provision. It would provide that, when 

a veteran has received one of the listed 

combat decorations, VA will not require 

additional evidence to verify that the 

veteran engaged in combat with the 

enemy, unless there is clear and 

convincing evidence to the contrary. 

Such decorations are reliable proof that 

a veteran engaged in combat. We realize 

that new types of combat decorations 

may be issued in the future and have 

provided for that contingency in 

proposed § 5.249(b)(17). We 

additionally propose to include the 

Combat Action Badge in § 5.249(b)(16). 

On February 11, 2005, the Army 

announced this new decoration, with 

the intent to provide special recognition 

to ground combat arms soldiers who are 

trained and employed in direct combat 

missions similar to Infantry and Special 

Forces. 

Section 5.250 Service Connection for 

Posttraumatic Stress Disorder 

Proposed § 5.250 would be dedicated 

entirely to the adjudication of claims for 

service connection for posttraumatic 

stress disorder (PTSD). This new 

regulation would contain the substance 

of current § 3.304(f) with some technical 

revision and additional content stating 

VA’s policy and procedures for 

adjudicating these claims. 

Proposed § 5.250(a) would list the 

elements of proof of a PTSD claim, 

which are similar to the requirements to 

establish service connection for any 

other current disability and would be 

derived from current § 3.304(f). 

Paragraph (a)(1) would require evidence 

of a current disability. Paragraph (a)(2) 

would require a link between ‘‘current 

signs or symptoms’’ of PTSD and ‘‘an inservice stressor’’. In PTSD cases, the inservice injury is always the ‘‘stressor’’ 

that caused the PTSD. We refer to ‘‘signs 

or symptoms’’ because the American 

Psychiatric Association’s Diagnostic and 

Statistical Manual of Mental Disorders 

(4th ed. 1994) (DSM–IV) includes 

objective phenomena among the 

diagnostic criteria for PTSD, for 

example, ‘‘physiological reactivity,’’ 

‘‘hypervigilance,’’ and ‘‘exaggerated 

startle response.’’ Id. at diagnostic code 

309.81 B(5), D(4) and (5). VA uses the 

diagnostic criteria of the DSM–IV to 

diagnose PTSD. See 38 CFR 4.125(a). 

Proposed paragraph (a)(3) would 

require ‘‘credible supporting evidence 

that the claimed in-service stressor 

occurred.’’ Although this is an 

evidentiary requirement, we would state 

it as an element of a PTSD claim 

because it is often the central issue to 

the adjudication of such a claim, being 

the focus of most of the evidentiary 

development. Multiple judicial opinions 

have upheld the validity of the 

requirement. See, e.g., Nat’l Org. of 

Veterans’ Advocates, Inc, v. Sec’y of 

Veterans Affairs, 330 F.3d 1345, 1350– 

51 (Fed. Cir. 2003); Moran v. Principi, 

17 Vet. App. 149, 155–59 (2003). Given 

the number of court decisions the 

‘‘credible supporting evidence’’ 

requirement has engendered, we 

propose to identify the two salient 

features of such evidence: (1) It can be 

from any source other than the 

claimant’s statement; and (2) It must 

corroborate the occurrence of the 

alleged in-service stressor. See Moran, 

17 Vet. App. at 159. The definition 

would make no substantive change in 

the regulation, but it would lend it 

certainty. 

Proposed § 5.250(b) would be new. It 

would require, generally, that VA seek 

verification of a stressor before denying 

a claim solely on the ground that the 

stressor is not verified. The revision is 

designed to make it clear when VA must 

seek verification from the appropriate 

entity, such as the U.S. Army and Joint 

Services Records Research Center. 

Verification will not be possible when 

the claimant’s statements describing the 

claimed in-service stressor are too vague 

to enable the appropriate agency to try 

to corroborate the events described. 

Therefore, the proposed rule would not 

require VA to seek verification when the 

claimant fails to provide information 

requested by VA that is needed to try to 

verify the event(s) described in his or 

her statement. 

Proposed § 5.250(c) would be derived 

from current § 3.304(f)(1). Proposed 

paragraph (d) would explicitly state that 

the presumptions at proposed § 5.249, 

‘‘Special service connection rules for 

combat-related injury or disease’’, would 

apply to establish an in-service stressor 

for combat veterans. The current rule, in 

§ 3.304(f)(2), repeats the language of the 

evidentiary presumption applicable to 

combat veterans, where this rule would 

simply refer the reader to that 

presumption. The proposed rule would 

also reference former prisoners of war 

because current § 3.304(f)(4) treats such 

veterans in the same manner as combat 

veterans for purposes of PTSD claims. 

Again, no substantive changes are 

intended. 

Proposed § 5.250(e) is based on 

§ 3.304(f)(3), which governs cases where 

a VA psychiatrist or psychologist has 

confirmed the stressor. The first 

sentence of paragraph (f)(3) is 103 words 

and the second is 100 words. We have 

reorganized these sentences by breaking 

them into subparagraphs, which will 

make this provision easier to read and 

apply. 

Proposed paragraph (f) would be a 

plain-language rewrite of current 

§ 3.304(f)(5) with no substantive 

differences. 

Section 5.251 Current Disabilities for 

Which VA Cannot Grant Service 

Connection 

Proposed § 5.251 would list 

disabilities for which VA cannot grant 

service connection and distinguish them 

from similarly named disabilities for 

which VA can grant service connection. 

Current § 3.303(c) identifies certain 

disabilities that ‘‘are not diseases or 

injuries within the meaning of 

applicable legislation.’’ We would 

restate the rule in proposed § 5.251(a) by 

identifying specific disabilities for 

which ‘‘VA will not grant service 

connection * * * because they are not 

the result of an injury or disease for 

purposes of service connection’’. By 

using the ‘‘not the result of’’ language, 

the proposed rule would recognize that 

the listed conditions are indeed 

disabilities, but clarify that they are not 

caused by an injury or disease. Also, in 

paragraph (a) we would omit the phrase 

‘‘within the meaning of applicable 

legislation’’ because the ‘‘applicable 

legislation’’, 38 U.S.C. 1110 and 1131, is 

cited as the statutory authority for 

§ 5.251. 

In addition, proposed § 5.251 would 

update some of the terms used to 

identify the listed disabilities. In 

proposed paragraphs (a)(1) and (a)(2), 

we would refer to ‘‘[c]ongenital or 

developmental defects (such as 

congenital or developmental refractive 

error of the eye)’’ and to 

‘‘[d]evelopmental personality disorders’’, 

rather than to ‘‘refractive error of the 

eye’’ and to ‘‘personality disorders’’, 

respectively, as stated in current 

§ 3.303(c). These changes would 

distinguish disorders that do not result 

from injury or disease, like myopia or 

personality disorder, from similarly 

named disorders for which VA permits 

service connection, such as ‘‘malignant 

or pernicious myopia’’ or ‘‘personality 


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change due to general medical 

condition’’, both discussed below. 

Personality disorders have onset by 

adolescence or early adulthood. DSM– 

IV at 629. Although technically 

redundant, paragraph (a)(2) uses the 

term ‘‘developmental personality 

disorder’’ to distinguish clearly between 

‘‘personality disorder’’ and ‘‘personality 

change’’. This clarification is necessary 

because in paragraph (b)(2), we would 

state that VA is not precluded from 

granting service connection for the 

disability of ‘‘[p]ersonality change’’ if it 

is the result of an organic mental 

disorder, see 38 CFR 4.130 Diagnostic 

Code 9327, or is an interseizure 

manifestation of psychomotor epilepsy, 

see 38 CFR 4.122(b), 4.124a Diagnostic 

Code 8914. Section 5.251(a)(2) and 

(b)(2) would help ensure that 

personality changes due to general 

medical conditions are given 

appropriate consideration, in light of the 

above rating-schedule provisions. 

In proposed paragraph (a)(3), we 

would refer to ‘‘[d]evelopmental 

intellectual disability (mental 

retardation)’’ rather than to ‘‘mental 

deficiency’’, as stated in current 

§ 3.303(c). The term ‘‘intellectual 

disability’’ would represent current 

medical terminology. ‘‘Mental 

deficiency’’ is an archaic term, replaced 

decades ago by ‘‘mental retardation’’, 

and more recent medical usage has 

replaced the term ‘‘mental retardation’’ 

with ‘‘intellectual disability.’’ See Robert 

L. Schalock, et al., The Renaming of 

Mental Retardation: Understanding the 

Change to the Term Intellectual 

Disability, Intellectual and 

Developmental Disabilities, April 2007, 

at 116–124. VA would use the term 

‘‘developmental intellectual disability’’ 

to distinguish the intellectual disability 

formerly called mental retardation from 

impairment of intellect resulting from 

injury or disease incurred during active 

service. 

In proposed paragraph (b), we would 

set forth several disabilities that are 

distinguishable from the disabilities 

listed in the rule in paragraph (a). 

Paragraph (b) would list those 

disabilities for which VA can grant 

service connection because, although 

the disabilities manifest like those 

precluded in paragraph (a), they are 

scientifically distinguishable and 

actually result from an injury or disease. 

VA currently distinguishes these two 

categories of disabilities based on longstanding internal VA guidance, which is 

implicit in current § 3.303(c) and may 

be discerned from multiple sections of 

the VA Schedule for Rating Disabilities 

in part 4 of this chapter. It would be 

advantageous to claimants and to VA 

employees to state these rules explicitly. 

Thus, this would not be a substantive 

change in VA practice, even if proposed 

paragraph (b) would be the first explicit 

regulatory discussion of these 

disabilities. 

Proposed paragraph (b)(1) would list 

‘‘[m]alignant or pernicious myopia’’ as a 

disability for which VA will grant 

service connection because malignant or 

pernicious myopia is associated with a 

disease, while other types of myopia are 

congenital or developmental refractive 

errors of the eye. Compare ‘‘myopia’’ 

with ‘‘malignant m., pernicious m.’’ 

Dorland’s Illustrated Med. Dictionary, at 

1243. 

In proposed paragraph (b)(2), we 

would use the term ‘‘personality change’’ 

to identify the personality altering 

effects of an injury or disease that VA 

can service connect. This paragraph 

would distinguish personality change 

from ‘‘developmental personality 

disorder’’, which VA cannot service 

connect. The VA Schedule for Rating 

Disabilities in part 4 of this chapter 

(Schedule for Rating Disabilities) 

identifies personality changes by several 

different names. See § 4.122(b) of this 

chapter (referring to interseizure 

manifestation of psychomotor epilepsy); 

§ 4.124a of this chapter, Diagnostic Code 

8045 (neurobehavioral effects of 

traumatic brain injury not otherwise 

classified); § 4.130 of this chapter, 

Diagnostic Code 9304 (dementia due to 

head trauma), Diagnostic Code 9326 

(dementia due to other neurologic or 

general medical conditions or that are 

substance induced), and Diagnostic 

Code 9327 (organic mental disorder, 

including personality change due to a 

general medical condition). 

Proposed paragraph (b)(3) would 

allow service connection of an 

‘‘intellectual disability’’, or ‘‘mental 

retardation’’ as referred to in part 4 of 

this chapter, that results from a serviceconnected disability. We would use the 

term ‘‘nondevelopmental intellectual 

disability’’ to distinguish it from 

‘‘developmental intellectual disability’’, 

or ‘‘mental retardation’’ as it is called in 

§ 4.127, which may not be service 

connected. As with personality change 

due to general medical condition or 

injury, this rule would codify longstanding VA practice without 

implementing any substantive change. 

For example, the Schedule for Rating 

Disabilities allows compensation for 

disability resulting from mental 

retardation and personality disorder ‘‘as 

provided in § 3.310(a) of this chapter.’’ 

See 38 CFR 4.127. Section 3.310(a) 

provides for compensation for disability 

proximately due to or the result of 

service-connected injury or disease 

(secondary service connection). 

Despite using the terms ‘‘personality 

disorder’’ and ‘‘mental retardation’’, 

§ 4.127 allows VA to compensate those 

disabilities that proposed § 5.251(b)(2) 

and (3) would refer to as ‘‘personality 

change’’ and ‘‘nondevelopmental 

intellectual disability’’, respectively. 

VA’s regulation for rating residuals of 

traumatic brain injury also demonstrates 

that VA service connects intellectual 

disability resulting from injury incurred 

in service. See § 4.124a of this chapter, 

Diagnostic Code 8045, ‘‘Residuals of 

traumatic brain injury’’, which provides 

criteria for ‘‘[f]acets of cognitive 

impairment and other residuals of 

[traumatic brain injury] not otherwise 

classified’’. Consistent with § 4.127 

regarding secondary service connection 

for ‘‘mental retardation’’, proposed 

§ 5.251(b)(3) would allow service 

connection for ‘‘nondevelopmental 

intellectual disability’’ proximately 

caused by a service-connected 

disability. With the changes in 

terminology discussed above, we 

propose to explicitly identify in 

proposed § 5.251(b)(1) through (3) the 

disabilities that are distinguishable from 

those listed in current § 3.303(c). The 

listing of these distinguishable 

disabilities would not result in a 

substantive change to existing 

regulations. 

Section 4.127 of this chapter permits 

service connection for a disability from 

a mental disorder superimposed on 

mental retardation or a personality 

disorder. In § 5.251(c) we would make 

clear that this concept applies to all 

disabilities, not only mental disorders. 

A veteran could incur a disability 

affecting the same body part or system 

as a defect listed in proposed § 5.251(a). 

Proposed § 5.251(c) would clarify that 

proposed § 5.251(a) does not preclude 

granting service connection for such a 

separate disability. 

VA has long held that the rules in the 

last sentence of current § 3.303(c), upon 

which proposed § 5.251(a)(1) would be 

based, do not preclude granting service 

connection for disability due to an 

inherited disease. We propose to clarify, 

in § 5.251(d), that congenital or 

developmental defects are 

distinguishable from ‘‘inherited or 

familial diseases’’ and that § 5.251(a) 

does not bar service connection for 

disability due to an inherited or familial 

disease. For the text of proposed 

§ 5.261(f), which is cross-referenced in 

proposed § 5.251(d), see 69 FR 44625 

(July 27, 2004). 

Proposed § 5.251(e) would be derived 

from current § 3.380, ‘‘Diseases of 

allergic etiology’’, which essentially 


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advises the reader not to assume that 

diseases of allergic etiology are 

constitutional or developmental 

abnormalities. Section 3.380 also states: 

Service connection must be determined on 

the evidence as to existence prior to 

enlistment and, if so existent, a comparative 

study must be made of its severity at 

enlistment and subsequently. Increase in the 

degree of disability during service may not be 

disposed of routinely as natural progress nor 

as due to the inherent nature of the disease. 

Seasonal and other acute allergic 

manifestations subsiding on the absence of or 

removal of the allergen are generally to be 

regarded as acute diseases, healing without 

residuals. The determination as to service 

incurrence or aggravation must be on the 

whole evidentiary showing. 

These provisions are hortatory and 

provide no rights or duties beyond those 

already contained in other regulations. 

We note that 38 CFR 3.303(a) prescribes 

that VA must decide claims for service 

connection ‘‘based on review of the 

entire evidence of record’’. Proposed 

§ 5.4(b) would expand that rule to apply 

to all compensation and pension claims, 

stating that ‘‘VA decisions will be based 

on a review of the entire record’’. Under 

that provision, VA must consider the 

entire record in determining whether an 

increase in severity is due to the natural 

progress of a disease; this principle 

applies to allergies just like any other 

disease. Thus, VA cannot assume that 

any increase in severity of a particular 

disease must be due to the natural 

progress of that disease. Therefore, we 

would not include the quoted portion of 

current § 3.380 in part 5. 

Rating Service-Connected Disabilities 

Section 5.280 General Rating 

Principles 

Proposed § 5.280 would be based on 

current § 3.321(a), pertaining to use of 

the Schedule for Rating Disabilities in 

part 4 of this chapter, and current 

§ 3.321(b)(1), (b)(3), and (c), pertaining 

to extra-schedular disability 

compensation ratings. The part 5 

counterpart of current § 3.321(b)(2), 

pertaining to extra-schedular pension 

ratings, would be § 5.381(b)(5). See 72 

FR at 54793 (Sep. 26, 2007). 

We are not repeating the language in 

current § 3.321(a), or similar language in 

§ 3.321(b)(1), that ‘‘[t]he provisions 

contained in the rating schedule will 

represent as far as can practicably be 

determined, the average impairment in 

earning capacity in civil occupations 

resulting from disability.’’ This language 

is redundant of similar language in 

current § 4.1 of this chapter and is 

beyond the scope of the topic of part 5. 

It represents a basic precept of the rating 

schedule appropriately stated in part 4. 

It is not an actual instruction for extraschedular rating. Omitting the statement 

from part 5 simplifies the part 5 

regulation. As the language conveys no 

specific right to claimants, its omission 

cannot deprive a claimant of any right. 

We also propose not to repeat the 

phrase in current § 3.321(b)(1) that ‘‘the 

Secretary shall from time to time 

readjust this schedule of ratings in 

accordance with experience.’’ This 

phrase quotes 38 U.S.C. 1155 verbatim. 

It imposes no duty on VA not stated 

completely in the statute. It conveys no 

right applicable to any specific claim. 

The statutory charge to the Secretary to 

readjust the rating schedule is not 

pertinent to instructions for extraschedular rating. VA affords an extraschedular rating to those for whom the 

schedule cannot provide an adequate 

rating for the reasons stated in the 

regulation, regardless of what the 

schedule provides at any given time. 

Omitting the phrase from part 5 is not 

a substantive change in the regulation 

on extraschedular ratings. 

Proposed § 5.280 would update 

certain VA terminology consistent with 

current usage and with choices of terms 

used consistently throughout part 5. 

Where current § 3.321(b)(1) requires that 

a VA ‘‘field station’’ submit a claim for 

extra-schedular ‘‘evaluation’’, proposed 

§ 5.280(b) would require that a 

‘‘Veterans Service Center (VSC)’’ submit 

a claim for extra-schedular ‘‘rating’’. The 

terms ‘‘rate’’ and ‘‘rating’’ are used 

throughout part 5, rather than 

‘‘evaluate’’, ‘‘evaluating’’, and 

‘‘evaluation’’, when referring to the 

process of applying the Schedule for 

Rating Disabilities in part 4 of this 

chapter to the facts of an individual 

claim for benefits. Where current 

§ 3.321(c) provides that a field station 

may submit a claim to ‘‘[VA] Central 

Office’’ for an advisory opinion under 

certain circumstances, proposed 

§ 5.280(c) would provide that a VSC 

may submit a claim to ‘‘the Director of 

the Compensation and Pension Service’’, 

to reflect long-standing VA practice 

accurately. We intend no substantive 

change with these changes of 

terminology. 

Additionally, we would not repeat 

current § 3.323(a). Paragraph (a)(1) is 

another instance of providing rating 

instructions in part 3 that do not afford 

specific rights to claimants or impose 

any duty on VA other than those 

contained in part 4. See § 4.25 of this 

chapter, ‘‘Combined ratings table’’; § 4.26 

of this chapter, ‘‘Bilateral factor.’’ 

Current § 3.323(a)(2) reads as follows: 

(2) Wartime and peacetime service. 

Evaluation of wartime and peacetime serviceconnected compensable disabilities will be 

combined to provide for the payment of 

wartime rates of compensation. (38 U.S.C. 

1157) Effective July 1, 1973, it is immaterial 

whether the disabilities are wartime or 

peacetime service-connected since all 

disabilities are compensable under 38 U.S.C. 

1114 and 1115 on and after that date. 

This paragraph no longer serves a 

useful purpose. As it indicates, there 

has been no distinction between 

wartime and peacetime rates of 

disability compensation for many years. 

Any retroactive award involving those 

distinctions would be based on statutes 

and regulations in effect at the time. 

Section 5.281 Multiple 0-Percent 

Service-Connected Disabilities 

Proposed § 5.281 would be based on 

current § 3.324. We propose to change 

the term ‘‘noncompensable’’ in the 

section heading to ‘‘0 percent’’ for 

simplicity. ‘‘0 percent’’ would be more 

understandable for many regulation 

users. VA interprets current § 3.324 as 

requiring the relevant disabilities be 

permanent and the combined effect of 

the disabilities interfere with normal 

employability. The proposed regulation 

would state this clearly. 

Section 5.282 Special Consideration 

for Paired Organs and Extremities 

Proposed § 5.282 would be based on 

current § 3.383. The rule would provide 

for disability compensation for certain 

paired organs and extremities, where 

disability from one of the pair is serviceconnected and disability from the other 

is not. Consistent with current § 3.383, 

proposed § 5.282(a) would state that 

‘‘VA will not pay compensation for the 

nonservice-connected disability if the 

veteran’s willful misconduct 

proximately caused it.’’ The term 

‘‘proximately caused’’ would be 

equivalent to ‘‘the result of’’. ‘‘Veteran’s’’ 

rather than ‘‘veteran’s own’’ would 

eliminate redundancy, as ‘‘veteran’s 

own’’ means the same thing as 

‘‘veteran’s’’. Though ‘‘own’’ might add 

emphasis, it would add no meaning. 

Proposed § 5.282(b)(1) would provide 

that VA will pay compensation for the 

combination of service-connected and 

nonservice-connected ‘‘impairment of 

vision’’ of both eyes if ‘‘(i) The 

impairment of vision in each eye is 

rated at a visual acuity of 20/200 or less; 

or (ii) The peripheral field of vision for 

each eye is 20 degrees or less.’’ 

Current § 3.383 refers to ‘‘loss or loss 

of use’’ of certain body parts. In 

§ 5.282(b)(2) and (b)(4), we propose to 

use ‘‘anatomical loss or loss of use’’ of 

the named body part. The proposed 

usage would be like that in 38 U.S.C. 

1114(k), which provides increased 


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compensation benefits for ‘‘anatomical 

loss or loss of use’’ of certain body parts. 

‘‘Loss’’ means ‘‘anatomical loss’’ in the 

phrase ‘‘loss or loss of use’’ in current 

§ 3.383. The proposed usage of the 

phrase ‘‘anatomical loss’’ would 

preclude misconstruing ‘‘loss’’ as some 

other type of loss that is neither 

anatomical loss nor loss of use. 

Proposed § 5.282(c) would be based 

on rules in current § 3.383(b) requiring 

offset against VA disability 

compensation for money or property 

veterans recover in a judgment, 

settlement, or compromise of a cause of 

action concerning their qualifying 

nonservice-connected disability. We 

propose to omit current § 3.383(b)(2), 

which pertains to the October 28, 1986, 

effective date for the offset provisions. 

Any award that would be granted under 

proposed § 5.282 would require offset 

because the award would be made ‘‘on 

or after October 28, 1986.’’ Retaining the 

effective date of a statutory change 

occurring over 23 years ago would serve 

no useful purpose. 

Section 5.283 Total and Permanent 

Total Ratings and Unemployability 

Proposed § 5.283 would be based on 

current § 3.340, ‘‘Total and permanent 

total ratings and unemployability.’’ 

Proposed § 5.283 would expand several 

dense paragraphs of current § 3.340 into 

individually designated rules for clarity, 

would update certain obsolete terms, 

and would promote consistency of 

terms throughout part 5. None of the 

differences between current § 3.340 and 

proposed § 5.283 would be substantive. 

Current § 3.340(a) prescribes the 

criteria for total disability and 

distinguishes it from permanent 

disability by stating that ‘‘[t]otal 

disability may or may not be 

permanent.’’ Proposed § 5.283(a)(1) 

would include this distinction by 

stating that ‘‘[f]or compensation 

purposes, a total disability rating may be 

granted without regard to whether the 

impairment is shown to be permanent.’’ 

Proposed § 5.283(a)(2) would refer to 

§§ 4.16 and 4.17 of this chapter rather 

than to ‘‘paragraph 16, page 5 of the 

rating schedule’’ and to ‘‘paragraph 17, 

page 5 of the rating schedule’’, 

respectively, as current § 3.340(a)(2) 

does. Current §§ 4.16 and 4.17 of this 

chapter are the counterparts of the 

references in current § 3.340(a)(2) to 

rules in the 1945 edition of the 

Schedule for Rating Disabilities. This 

change would update references to 

paragraphs of the 1945 edition of the 

Schedule for Rating Disabilities to the 

equivalent sections of the current 

Schedule for Rating Disabilities in part 

4 of this chapter. 

Proposed § 5.283(a)(3), based on 

current § 3.340(a)(3), would reformat the 

factors to consider in determining 

whether to rate a disability that has 

undergone some recent improvement as 

total based on its history. The proposed 

rule would state the factors in the same 

sequence as the current rule but would 

designate the factors individually for 

clarity. 

Proposed § 5.283(b), based on current 

§ 3.340(b), would reformat the factors 

VA must consider in determining 

whether a total disability is permanent. 

The proposed rule would state the 

factors in the same sequence as the 

current rule but would designate the 

factors individually for clarity. 

Current § 3.340(b) provides that a total 

disability is permanent when it is 

reasonably certain that ‘‘such disability’’ 

will continue throughout the life of the 

disabled person. ‘‘Such disability’’ refers 

to the disability described in current 

§ 3.340(a) as total, that is, ‘‘any 

impairment of mind or body which is 

sufficient to render it impossible for the 

average person to follow a substantially 

gainful occupation.’’ Proposed § 5.283(b) 

would restate the definition of total 

disability in place of ‘‘such’’, so the user 

need not trace the regulation to find 

what is meant by ‘‘such’’ disability. 

Proposed § 5.283(b)(1) would use the 

phrases ‘‘anatomical loss or loss of use’’ 

of certain body parts and ‘‘anatomical 

loss or loss of sight of both eyes’’ where 

current § 3.340(b) uses the phrase ‘‘loss 

or loss of use’’ of certain body parts or 

the sight of both eyes. As stated in our 

preamble discussion of § 5.282, the 

proposed usage would be like that in 38 

U.S.C. 1114(k), which provides 

increased compensation benefits for 

‘‘anatomical loss or loss of use’’ of 

certain body parts. ‘‘Loss’’ means 

‘‘anatomical loss’’ in the phrase ‘‘loss or 

loss of use’’ in current § 3.340(b). The 

proposed usage of the phrase 

‘‘anatomical loss’’ would preclude 

misconstruing ‘‘loss’’ as some other type 

of loss that is neither anatomical loss 

nor loss of use. 

Proposed § 5.283(b)(1) and (3) would 

use the phrase ‘‘permanently so 

significantly disabled as to need regular 

aid and attendance’’ where current 

§ 3.340(b) uses the phrase ‘‘permanently 

helpless’’. We would replace the term 

‘‘helpless’’ with the term ‘‘so 

significantly disabled as to need regular 

aid and attendance’’ to conform to the 

Veterans’ Housing Opportunity and 

Benefits Improvement Act of 2006 (Pub. 

L. 109–233), which amended certain 

sections of title 38, U.S.C., to replace the 

obsolete term ‘‘helpless’’ with the term 

‘‘significantly disabled’’ (and similar 

terminology) when describing persons 

who need regular aid and attendance. 

See, e.g., 38 U.S.C. 1114(l), 1115(1)(E), 

and 1502(b). Additionally, where 

current § 3.340(b) refers to the state of 

being ‘‘permanently helpless or 

bedridden’’, proposed § 5.283(b)(3) 

would refer to the state of being 

‘‘permanently bedridden’’ apart from the 

state of being ‘‘permanently so 

significantly disabled as to need regular 

aid and attendance’’. This would 

preclude any ambiguity about whether 

bedridden status must also be 

permanent to qualify as a criterion of a 

‘‘permanent total disability’’. The 

differences between proposed 

§ 5.283(b)(1) and (3) and current 

§ 3.340(b) would not be substantive. 

Section 5.284 Total Disability Ratings 

for Disability Compensation Purposes 

Proposed § 5.284 would be based on 

current § 3.341, ‘‘Total disability ratings 

for compensation purposes.’’ To 

eliminate redundancy with part 4, we 

would not repeat the second sentence of 

current § 3.341(a), which prohibits VA 

from considering the age of a veteran in 

determining whether the veteran is 

unemployable even though his or her 

schedular rating is less than 100 

percent. That rule is sufficiently stated 

in § 4.19 of this chapter. The omission 

would not be substantive. 

Proposed § 5.284(c) would omit the 

reference in current § 3.341(c) to ‘‘the 

period beginning after January 31, 1985’’ 

because any VA ratings pursuant to this 

proposed rule would take place after 

January 31, 1985. The omission would 

not be substantive. 

Section 5.285 Continuance of Total 

Disability Ratings 

Proposed § 5.285 would be based on 

paragraphs (a) and (c) of current § 3.343, 

‘‘Continuance of total disability ratings.’’ 

(The part 5 counterpart to § 3.343(b), 

‘‘Tuberculosis; compensation’’, was 

published in another NPRM as proposed 

§ 5.347. See 73 FR 62004 (Oct. 17, 

2008)). The proposed rule would be 

more succinct than current § 3.343, for 

example, by changing the phrase 

‘‘temporary interruptions in 

employment which are of short 

duration’’ in current § 3.343(c) to ‘‘brief 

interruptions in employment’’ in 

proposed § 5.285(b)(4). 

Proposed § 5.285 would reorganize 

current § 3.343. It would first state the 

rule that ‘‘VA will not reduce a total 

disability rating that was based on the 

severity of a person’s disability or 

disabilities without examination 

showing material improvement in 

physical or mental condition.’’ Proposed 

§ 5.285(a) would clarify in a separate 

sentence that ‘‘VA may reduce a total 


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disability rating that was based on the 

severity of a person’s disability or 

disabilities without examination if the 

rating was based on clear error.’’ This 

rule would constrain VA from reducing 

total disability ratings based on the 

severity of a person’s disability or 

disabilities unless VA examines the 

totally disabled person and considers 

the listed factors. Paragraph (a)(1) would 

articulate the factors VA must consider 

before it can reduce a total rating. 

Paragraph (a)(2) would prescribe the 

circumstances that require VA to 

reexamine the person before it may 

reduce a total rating, and when the 

reexamination must occur. Paragraph 

(a)(3) would clarify that the rules 

contained in paragraph (a), (a)(1), and 

(a)(2) do not apply when a total rating 

is purely based on hospital, surgical, or 

home treatment or individual 

unemployability. This clarification is 

currently imbedded in the first sentence 

of current § 3.343(a). 

Proposed § 5.285(b) would be based 

on current § 3.343(c), ‘‘Individual 

unemployability.’’ Proposed paragraph 

(b) would reorganize the elements of 

§ 3.343(c) without making any 

substantive changes. The proposed rule 

would not repeat the instruction in 

§ 3.343(c)(1) to apply the procedural 

protections for reductions of disability 

ratings to the reduction of a total 

disability rating based on individual 

unemployability (TDIU). The procedural 

protections apply to all reductions of 

compensation, not just to TDIU 

reductions. Including the reference to 

procedural protections here could lead 

readers to believe incorrectly that those 

protections do not apply elsewhere. The 

paragraph would therefore begin with 

the substance of the rules governing the 

reduction of a TDIU rating. The contents 

of the proposed rule are the same as in 

§ 3.343(c), but the constituent elements 

of the long paragraph in § 3.343(c) 

would be reformatted for clarity and to 

avoid ambiguity. Proposed paragraph 

(b)(1) would state VA’s standard of 

proof for reducing a TDIU rating. 

Paragraph (b)(2) would prescribe 

specific types of evidence VA must 

receive to meet the standard of proof for 

reduction of a TDIU rating of a veteran 

in vocational rehabilitation, education, 

or training. Paragraph (b)(3) would 

provide that a veteran’s participation in 

certain VA programs will be considered 

evidence of employability for purposes 

of reducing a TDIU rating. Paragraph 

(b)(4) would restate current § 3.343(c)(2) 

with the change for succinctness 

mentioned above. Paragraph (b)(4) 

would also omit the reference in current 

§ 3.343(c) to ‘‘the period beginning after 

January 1, 1985’’ because any VA ratings 

pursuant to this proposed rule would 

take place after January 1, 1985. The 

omission would not be substantive. 

Additional Disability Compensation 

Based on a Dependent Parent 

Parental dependency is significant in 

the context of VA disability 

compensation for veterans because VA 

pays a veteran additional compensation 

under certain circumstances if the 

veteran has a dependent parent. See 38 

U.S.C. 1115, ‘‘Additional compensation 

for dependents’’; 38 U.S.C. 1135, 

‘‘Additional compensation for 

dependents’’; and proposed § 5.240(b) 

included in this NPRM. Proposed 

§§ 5.300 and 5.302 through 5.304 would 

address parental dependency for 

purposes of disability compensation for 

veterans. 

Section 5.300 Establishing 

Dependency of a Parent 

VA is authorized by statute to pay 

additional compensation to a veteran 

with service-connected disability rated 

30-percent or more disabling who has a 

parent who is dependent upon the 

veteran for support. 38 U.S.C. 

1115(1)(D), (2). Proposed § 5.300 would 

describe how to establish the 

dependency of a parent. For consistency 

throughout part 5 and for simplicity in 

this rule, we would use the singular 

‘‘parent’’ or ‘‘parent’s’’ where current 

§ 3.250 uses the plural. This would not 

be a substantive change. 

Proposed paragraph (a) would be 

substantively equivalent to current 

§ 3.250(a), which prescribes specific 

income requirements for a conclusive 

finding of the dependency of a parent. 

Proposed § 5.300(a)(1)(i) would clarify 

that the income threshold for a mother 

or father not living together would be 

the same for a remarried parent and 

parent’s spouse not living together. This 

is implicit under current § 3.250(a) 

because, if a remarried parent and 

parent’s spouse were not living together, 

the appropriate income limitation 

category would be the amount under 

current § 3.250(a)(1)(i) for ‘‘a mother or 

father not living together’’. Proposed 

§ 5.300(a)(2) would clarify that net 

worth is not a consideration when a 

parent’s income is at or below the 

prescribed levels in proposed paragraph 

(a)(1). This information is implicit in 

current § 3.250(a)(1) and (2), but it is not 

clearly stated. 

When proposed paragraph (a) would 

not apply, VA must determine 

dependency on a case-by-case basis. 

Proposed § 5.300(b) would explain 

when VA must make a factual finding 

of dependency. Proposed paragraph 

(b)(1) would provide the general rule for 

establishing factual dependency. 

Proposed paragraph (b)(2) would state 

the requirements for consideration of 

net worth when VA must establish 

factual dependency. 

Proposed paragraph (b)(1)(ii) would 

restate current § 3.250(c). We removed 

the qualification of ‘‘habitual 

contributions’’ and made the rule 

simpler. Contributions from the veteran 

to a parent would be considered income 

under the rule governing income. See 

proposed § 5.302, ‘‘General income 

rules—parent’s dependency’’. A single 

contribution to the parent, for example, 

of $50,000, would be considered 

income. The regularity of the 

contribution would not be 

determinative. This would be consistent 

with current VA practice. The object of 

the rule would be to ensure that a 

Veterans Service Representative does 

not assume a parent is a veteran’s 

dependent merely because the veteran 

gives the parent money. Also, even if 

the parent’s receipt of money from the 

veteran is the parent’s only income, i.e., 

the parent is entirely dependent on the 

veteran, if the veteran’s contribution is 

sufficient to provide reasonable 

maintenance for the parent, the parent 

will not be considered a veteran’s 

dependent for purposes of proposed 

paragraph (b)(1). We intend no 

substantive change. 

Proposed § 5.300(c) would define the 

term ‘‘family member’’ by incorporating 

provisions contained in the introduction 

to current § 3.250(b) and in current 

§ 3.250(b)(2). The introduction to 

current § 3.250(b) describes a family 

member as a member under legal age or 

an adult member of the family who is 

dependent due to mental or physical 

incapacity. However, paragraph (b)(2), 

incorporating language in 38 U.S.C. 

102(b)(2), defines a family member as 

one whom the father or mother is under 

a legal or moral obligation to support. 

We propose to combine this information 

into one definition. We also propose to 

define family member as a relative. This 

has always been VA’s intent, which is 

why current § 3.250(b) and (b)(2) refers 

to a ‘‘member of the family’’ rather than 

to a member of the household. This 

change would standardize the 

application of this section nationally 

and would be consistent with longstanding VA practice. 

We have not repeated in proposed 

§ 5.300(c) a provision of current 

§ 3.250(b)(2) that limits VA’s 

consideration of the expenses a parent 

incurs for the support of a relative 

whom the parent is under a legal or 

moral obligation to support to expenses 

of a relative ‘‘in the ascending as well as 


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descending class’’, which we construe to 

mean relatives in a parent’s direct line. 

(‘‘Ascendant’’ means ‘‘[o]ne who 

precedes in lineage, such as a parent or 

grandparent.’’ Black’s Law Dictionary 

121 (8th ed. 2004). ‘‘Descendant’’ means 

‘‘[o]ne who follows in lineage, in direct 

(not collateral) descent from a person. 

Examples are children and 

grandchildren.’’ Id. at 476.) This current 

provision excludes, for example, the 

expenses of an orphaned niece or 

nephew who is still a minor for whom 

the parent is providing support. 

This restriction to the ascending and 

descending class is not required by 

statute. The authorizing statute, 38 

U.S.C. 102, merely states that 

‘‘[d]ependency of a parent * * * shall 

be determined in accordance with 

regulations prescribed by the Secretary 

[of Veterans Affairs].’’ 38 U.S.C. 102(a). 

We do not believe that the restriction is 

necessary, particularly because the 

qualifying expenses are already limited 

to expenses of persons who are relatives 

whom the parent has a moral or legal 

obligation of support. We also note that 

there is no such restriction with respect 

to expense deductions used in 

calculating VA’s largest income-based 

program, Improved Pension. See, e.g., 

current § 3.272(g)(1)(i); proposed 

§ 5.413(b)(2)(i), 72 FR at 54776. VA’s 

rules for determining income for 

purposes of administering its incomebased programs should be consistent 

unless the law requires otherwise. 

Current § 3.660(a)(1) provides, in part, 

that ‘‘in compensation claims subject to 

§ 3.250(a)(2), notice must be furnished 

of any material increase in corpus of the 

estate or net worth.’’ Current 

§ 3.250(a)(2) provides that VA may 

consider the factual dependency of a 

veteran’s parents. Paragraph (d) of 

proposed § 5.300 would substitute 

‘‘report’’ for ‘‘notice’’ because 

notifications are typically provided by 

VA and not by claimants. In addition, 

proposed § 5.300(d) would clarify that 

the report regarding an increase in the 

parent’s income or net worth must be 

furnished by the veteran who is 

receiving additional disability 

compensation based on a dependent 

parent, and that failure to report such an 

increase may result in creation of 

indebtedness based on an overpayment 

subject to recovery by VA. Consistent 

with current § 3.660(a)(1), this reporting 

requirement would only apply when a 

parent’s increased income exceeds the 

amounts specified in proposed 

§ 5.300(a)(1). 

Section 5.302 General Income Rules— 

Parent’s Dependency 

Current §§ 3.261 and 3.262 provide 

the regulatory framework VA uses to 

calculate income for purposes of 

determining eligibility for Section 306 

Pension, parents’ DIC, and additional 

disability compensation for the 

dependency of a parent. Current 

§§ 3.261 and 3.262 are lengthy and 

complex because those sections 

combine provisions concerning the 

evaluation of income in three very 

different contexts. As a result, §§ 3.261 

and 3.262 can be difficult to understand 

and use. Therefore, in part 5 we propose 

to divide the subject matter addressed 

by current §§ 3.261 and 3.262 into 

separate regulations, each dealing with 

the evaluation of income for a specific 

purpose. This division is also consistent 

with the benefit-specific organizational 

plan of proposed new part 5. Proposed 

§§ 5.302 through 5.304 would pertain 

only to calculating income for the 

purpose of determining a veteran’s 

entitlement to additional disability 

compensation for parent’s dependency. 

Income regulations for pension and 

parent’s DIC are addressed in NPRMs 

dealing with those subjects. 

Because there are numerous 

similarities between the way income is 

calculated for determining a parent’s 

dependency and for determining 

eligibility for parents’ DIC, and to 

promote as much consistency as the 

subject matter allows, we have based the 

structure of proposed §§ 5.302 through 

5.304 on their proposed counterparts for 

income calculations for purposes of 

parents’ DIC eligibility. See § 5.531, 

‘‘General income rules’’; § 5.532, 

‘‘Deductions from income’’; and § 5.533, 

‘‘Exclusions from income’’, 70 FR at 

61326. The text of proposed §§ 5.302 

through 5.304 would also reflect the 

differences in the way that income is 

calculated for parent’s dependency 

purposes. 

Proposed § 5.302(a) would state the 

basic rule that VA must count all 

payments of any kind from any source 

in determining income. Beginning with 

this basic rule would simplify the 

proposed regulation because the allinclusive nature of the rule would 

eliminate any need to catalog types of 

countable income. All income that a 

parent receives is income for parent’s 

dependency purposes unless there is a 

specific exclusion. For example, with 

this beginning point, provisions such as 

the first sentence of current § 3.262(j)(2) 

(providing that, with respect to life 

insurance, ‘‘the full amount of payments 

is considered income as received’’) 

become redundant and need not be 

carried forward. 

Because VA must count all payments, 

it is necessary to know what VA 

includes in, and excludes from, the term 

‘‘payments’’. To eliminate redundancy, 

we would cross-reference proposed 

§ 5.370, ‘‘Definitions for Improved 

Pension’’, 72 FR at 54776, which defines 

‘‘payments’’. This definition would 

apply throughout part 5. 

Proposed § 5.302(b) would provide 

that, if a parent is married, ‘‘income’’ 

would be the combined income of the 

parent and the parent’s spouse, except 

where the marriage has been terminated 

or the parent is separated from his or 

her spouse. We would also state that 

‘‘[i]ncome is combined whether the 

parent’s spouse is the veteran’s other 

parent or the veteran’s stepparent’’ and 

that ‘‘[t]he income of the parent’s spouse 

will be subject to the same rules that are 

applicable to determining the income of 

the veteran’s parent.’’ This would be a 

clearer statement of the principle in the 

introduction to current § 3.262(b), 

which provides that ‘‘[i]ncome of the 

spouse will be determined under the 

rules applicable to income of the 

claimant.’’ The income rules in 

proposed § 5.302 would be applicable to 

a parent. The spouse of a veteran’s 

parent will always be either the 

veteran’s other parent (in which case the 

rules would expressly apply) or the 

veteran’s stepparent. In the context of 

additional disability compensation to a 

veteran for parent’s dependency, the 

veteran, and not the parent, is the 

claimant. 

Current § 3.250(b)(2) provides that 

‘‘[i]n determining whether other 

members of the family under legal age 

are factors in necessary expenses of the 

mother or father, consideration will be 

given to any income from business or 

property (including trusts) actually 

available, directly or indirectly, to the 

mother or father for the support of the 

minor but not to the corpus of the estate 

or the income of the minor which is not 

so available.’’ Proposed § 5.302(c), based 

on §§ 3.250(b)(2) and 3.261(a)(3), would 

refer to the veteran’s ‘‘parent’’ rather 

than to the veteran’s ‘‘mother or father’’ 

to make it clear that these regulatory 

provisions refer to the veteran’s parent 

whose dependency is at issue, rather 

than to the mother or father of the 

minor. Under the applicable definition 

of ‘‘family member’’ (see proposed 

§ 5.300(c)) the minor family member 

would not necessarily be another child 

of the veteran’s parent. Also, to be 

consistent with the new proposed 

definition of ‘‘family member’’, we 

propose to refer to a family member who 

is under ‘‘21 years of age’’ rather than to 


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a family member who is under ‘‘legal 

age’’, as stated in current 3.250(b)(2). 

Proposed § 5.302(d), based on current 

§ 3.262(k)(2), would state the rule that 

income from a parent’s property is 

income of the parent. Property 

ownership is an important indicator of 

the right to income from that property, 

but it is not always controlling. To 

eliminate redundancy, we would crossreference § 5.410(f), 72 FR at 54776, for 

how VA determines ownership of 

property. This provision would apply 

throughout part 5. 

Proposed § 5.302(e) would state the 

rules for calculating the amount of profit 

from the sale of real or personal 

property. Current § 3.262(k)(3) provides 

that the basis for calculating net profit 

on the sale of such property is the value 

of the property at the date of entitlement 

to benefits (in this case, the veteran’s 

entitlement to additional disability 

compensation based on parent’s 

dependency), if the property was owned 

prior to the date of entitlement. 

However, it does not state the basis for 

calculating the net profit on the sale of 

property acquired after the date of 

entitlement. We propose to adopt the 

commonly used principle that the value 

to be deducted from the sales price to 

determine profit in such circumstances 

is the cost of the property, including 

improvements. This rule would be one 

with which many claimants should be 

familiar. It would be, for example, 

similar to the rule used in determining 

profit for Federal income tax purposes. 

Section 5.303 Deductions From 

Income—Parent’s Dependency 

Even though all income is counted 

except where there is specific authority 

to exclude it, VA permits deductions 

from income in some instances. That is, 

the amount of income ultimately 

counted is the difference between 

income and certain deductible expenses 

directly associated with that income. 

Proposed § 5.303 would list permitted 

deductions. 

Proposed § 5.303(b), concerning the 

deductibility of expenses associated 

with recoveries for death and disability, 

would be based on rules found in 

current §§ 3.261(a)(24) and 3.262(i)(1) 

and (j)(4). Current § 3.262(i)(1) refers to 

‘‘the Bureau of Employees’ 

Compensation, Department of Labor (of 

the United States).’’ The Bureau of 

Employees’ Compensation was 

abolished in 1974. See 20 CFR 1.5. Its 

functions are now carried out by the 

Office of Workers’ Compensation 

Programs of the U.S. Department of 

Labor. See 20 CFR 1.6(b). This change 

would be reflected in proposed 

§ 5.303(b)(2). 

Section 5.304 Exclusions From 

Income—Parent’s Dependency 

Proposed § 5.304 would list income 

that VA does not count when 

calculating a parent’s income. Proposed 

paragraph (c) would be based on current 

§ 3.261(a)(12), which excludes the ‘‘[s]ixmonths’ death gratuity’’. However, we 

propose to change the description to 

‘‘[d]eath gratuity payments by the 

Secretary concerned under 10 U.S.C. 

1475 through 1480.’’ The phrase ‘‘sixmonths’ death gratuity’’ is obsolete. 

While the death gratuity consisted of 

six-months’ pay when originally 

enacted (see Pub. L. 66–99, § 1, 41 Stat. 

367 (1919)), that is no longer the case. 

Over the years, these death gratuity 

payments have evolved into a fixed 

sum, rather than a variable amount 

equal to six-months’ pay. See 10 U.S.C. 

1478. As covered in proposed paragraph 

(c), this exclusion would extend to 

death gratuity payments in lieu of 

payments under 10 U.S.C. 1478 made to 

certain survivors of ‘‘Persian Gulf 

conflict’’ veterans as authorized by the 

Persian Gulf Conflict Supplemental 

Authorization and Personnel Benefits 

Act of 1991. See Public Law 102–25, 

§ 307, 105 Stat. 82 (1991). Note that the 

phrase ‘‘Secretary concerned’’ is defined 

in proposed § 5.1. See 71 FR at 16474. 

Proposed § 5.304 would combine 

rules from current § 3.262 that permit a 

parent to exclude from his or her 

income the value of certain income 

received by that parent. One of these is 

found in current § 3.262(f), which 

requires VA to treat ‘‘[b]enefits received 

under noncontributory programs, such 

as old age assistance, aid to dependent 

children, and supplemental security 

income’’ as charitable donations. We 

propose to remove the references to the 

Old Age Assistance program and the 

Aid to Dependent Children program 

because these programs no longer exist. 

The Old Age Assistance program was 

phased out and totally replaced by the 

Supplemental Security Income program 

in 1972 and the Aid to Dependent 

Children program became a federal 

block grant known as Temporary 

Assistance to Needy Families in 1996. 

There are a number of other Federal 

statutes that exempt specific kinds of 

income from consideration in 

determining either eligibility for all 

Federal income-based programs, or 

eligibility for all of VA’s income-based 

benefit programs. Because those 

exclusions affect more than a parent’s 

dependency, they will be addressed in 

§ 5.412, 72 FR at 54776, ‘‘Income 

exclusions for calculating countable 

annual income’’. Proposed § 5.304 

would list only those income exclusions 

that are unique to a parent’s 

dependency allowance. 

Current § 3.261(a)(20) excludes VA 

benefit payments for World War I 

adjusted compensation. We would 

remove this exclusion because there is 

currently only one World War I veteran. 

We do not envision receiving any new 

claims for this benefit. 

Proposed § 5.304(h), based on current 

§ 3.262(k)(4), would provide an 

exclusion for net profit from the sale of 

the parent’s principal residence when 

that profit is used to purchase another 

principal residence within specified 

time constraints. In drafting proposed 

§ 5.304(h), we intentionally omitted the 

rule in current § 3.262(k)(4) that makes 

the exclusion available only when the 

net profit is applied to the purchase of 

a new principal residence after January 

10, 1962. Inclusion of that effective date 

has been rendered unnecessary due to 

the passage of time. This is particularly 

true in view of the fact that, to qualify 

for this exclusion, the application of the 

net profit from the sale of the old 

residence to the purchase of a 

replacement residence must be reported 

to VA within 1 year after the date it was 

so applied. 

Current § 3.261(a)(11) excludes 

‘‘mustering-out pay’’ from income for 

purposes of determining parental 

dependency. We propose to omit this 

provision from § 5.304. Mustering-out 

pay was repealed by Public Law 89–50, 

79 Stat. 173, in 1965. 

We propose to omit an exclusion 

listed in current § 3.261(a)(20) because it 

is now obsolete. That section excludes 

‘‘[s]ervicemember’s indemnity’’ from 

income for purposes of determining 

parental dependency. The Servicemen’s 

Indemnity Act of 1951, Public Law 

82–23, 65 Stat. 33, authorized VA to pay 

indemnity in the form of $10,000 

automatic life insurance coverage to the 

survivors of members of the Armed 

Forces who died in service. However, 

the Act authorizing this benefit was 

repealed in 1956. See Public Law 

84–881, § 502(9), 70 Stat. 886 (1956). 

Disability Compensation Effective Dates 

This section would begin with a note 

cross-referencing effective date rules for 

temporary total disability compensation 

ratings under current 38 CFR 4.29 based 

upon a veteran’s hospitalization for 

treatment or observation of a serviceconnected disability or under current 38 

CFR 4.30 based on convalescence. We 

propose not to include, in part 5, 

provisions similar to those in current 

§§ 3.401(h) and 3.501(m) because 

current §§ 4.29 and 4.30 contain 

effective date rules that apply in 


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situations covered by §§ 3.401(h) and 

3.501(m). 

Section 5.311 Effective Dates—Award 

of Disability Compensation 

Proposed § 5.311, based on current 

§ 3.400(b)(2), would provide the 

effective date rules for an award of 

disability compensation. We propose to 

omit the distinction in current 

§ 3.400(b)(2)(i) and (ii) between awards 

of compensation based on direct service 

connection and those based on 

presumptive service connection. In 

proposed § 5.1, we would define ‘‘direct 

service connection’’ as distinguishable 

from service connection based on a legal 

presumption. 71 FR at 16473. This 

distinction would be unnecessary in 

§ 5.311 because the effective date rules 

in current § 3.400(b)(2)(i) and (ii) are the 

same. By combining the two rules we 

would eliminate redundancy. No 

substantive change would be intended. 

Proposed § 5.311(a) would implement 

38 U.S.C. 5110(b)(1), which permits VA 

to make retroactive payments of 

disability compensation when a veteran 

files a benefit claim within 1 year after 

separation from service. There are 

several differences between proposed 

§ 5.311(a) and its current part 3 

equivalent, § 3.400(b)(2). 

Current § 3.400(b)(2)(i) states that the 

effective date of disability compensation 

is the ‘‘[d]ay following separation from 

active service or date entitlement arose 

if claim is received within 1 year after 

separation after service; otherwise, date 

of receipt of claim, or date entitlement 

arose, whichever is later.’’ We propose 

to replace the word ‘‘separation’’ with 

the statutory phrase ‘‘discharge or 

release’’. We would define the term 

‘‘discharge or release’’ in proposed § 5.1. 

71 FR at 16464. We also propose to 

replace ‘‘active service’’ with ‘‘active 

military service.’’ In proposed § 5.1, we 

would define ‘‘active military service’’ to 

mean the same as the statutory term 

‘‘active military, naval, or air service’’. 

71 FR at 16473. 

In paragraph (b) of § 5.311, we 

propose to restate the rule contained in 

the phrase ‘‘otherwise, date of receipt of 

claim, or date entitlement arose, 

whichever is later’’ in current 

§ 3.400(b)(2)(i) and (ii). Rather than 

repeat this language, we propose to 

simply reference the general part 5 

effective date rule found at § 5.150(a). 

72 FR 28,770, 28,876 (May 22, 2007). 

Section 5.312 Effective Dates— 

Increased Disability Compensation 

Proposed § 5.312, based on current 

§ 3.400(o)(2), would state the effective 

date rules for an award of increased 

disability compensation. It would 

implement 38 U.S.C. 5110(a) and (b)(2) 

as they pertain to an award of increased 

disability compensation. An increase in 

disability compensation most often 

results from an increase in a disability 

rating governed by the Schedule for 

Rating Disabilities in part 4 of this 

chapter. Section 5110(b)(2) and current 

§ 3.400(o)(2) also govern the effective 

date of an award of or increase in 

special monthly compensation (SMC) to 

a veteran with a current disability 

compensation award, even though the 

Schedule for Rating Disabilities does not 

govern SMC; no other statute or 

regulation provides an effective date of 

an award of SMC to a veteran with a 

current compensation award. We would 

title the section to refer to an increase 

in disability compensation, consistent 

with 38 U.S.C. 5110(b)(2) and current 

§ 3.400(o)(2), and draft the regulation to 

apply to an award of increased 

disability compensation, rather than to 

an increase in a disability rating. This 

would not be a change in scope of the 

current regulation or otherwise a 

substantive change. 

Proposed § 5.312(a) would be new. It 

would inform readers of the type of 

awards that VA considers to be subject 

to 38 U.S.C. 5110(b)(2): A higher 

disability rating under subpart B of the 

Schedule for Rating Disabilities in part 

4 of this chapter; a higher disability 

rating under the extra-schedular 

provision in evaluation under 

§ 5.280(b); a higher disability rating 

under § 4.16 of this chapter, ‘‘Total 

disability ratings for compensation 

based on unemployability of the 

individual’’; and an award or higher rate 

of special monthly compensation. 

The note after proposed § 5.312(a) 

would explain that this section does not 

establish the effective date of an award 

of secondary service connection under 

§ 5.246 or § 5.247. This would be 

consistent with the holding of the CAVC 

in Ross v. Peake, 21 Vet. App. 528, 532 

(2008), that ‘‘an award of ‘increased 

compensation’ within the meaning of 

section 5110(b)(2) does not encompass 

an award of secondary service 

connection because, by definition, 

secondary service connection requires 

the incurrence of an additional 

disability.’’ We would apply the 

reasoning in Ross to claims for 

secondary service connection under 

§ 5.246 and § 5.247. 

Proposed § 5.312(b) would restate in 

plain language the current effective-date 

rule for an award of increased disability 

compensation. Current § 3.400(o)(2) 

provides for an effective date on the 

‘‘[e]arliest date as of which it is factually 

ascertainable that an increase in 

disability had occurred if claim is 

received within 1 year from such date’’. 

This provision is based on 38 U.S.C. 

5110(b)(2), which states that ‘‘[t]he 

effective date of an award of increased 

compensation shall be the earliest date 

as of which it is ascertainable that an 

increase in disability had occurred, if 

application is received within one year 

from such date.’’ Rather than use the 

term ‘‘ascertainable’’, we would simply 

state in proposed § 5.312(b)(1) that the 

effective date will be ‘‘the date that the 

evidence warrants a higher disability 

rating, or an award or higher rate of 

special monthly compensation, if VA 

received a claim for increased disability 

compensation within 1 year after that 

date.’’ This would be consistent with 

current VA practice and the authorizing 

statute. This would not be a substantive 

change. 

Section 5.313 Effective Dates— 

Discontinuance of a Total Disability 

Rating Based on Individual 

Unemployability 

Proposed § 5.313 would be based on 

current § 3.501(e)(2) and (f). Section 

3.501(e)(2) states an effective date rule 

for discontinuance of a TDIU rating if a 

veteran regains employability. However, 

it does not provide guidance on what 

rating to assign in place of the TDIU 

rating. Section 3.501(f) provides an 

effective date rule for discontinuance of 

TDIU if a veteran fails to return an 

employment questionnaire to VA. It 

provides that the award will be reduced 

to the ‘‘amount payable for the schedular 

evaluation shown in the current rating 

as of the day following the date of last 

payment.’’ It has been long-standing VA 

practice to also apply the schedular 

evaluation to cases where a veteran 

regains employability under 

§ 3.501(e)(2). We propose to codify in 

§ 5.313(b) this practice, which produces 

a fair result for veterans and is simple 

to administer. We also propose to 

replace the term ‘‘current rating’’ in 

§ 3.501(f) with ‘‘existing schedular 

rating.’’ The term ‘‘current rating’’ could 

be confusing because the most ‘‘current’’ 

rating would be for TDIU. Using 

‘‘existing schedular rating’’ would clarify 

that we mean the rating that was in 

effect when TDIU was awarded. 

We are proposing to rephrase effective 

date rules concerning reductions and 

discontinuances of VA benefits 

throughout part 5. Stating the first day 

VA will pay the new reduced rate or 

discontinue making payment, rather 

than stating the last day of the old rate 

or the last day of payment, would make 

these effective-date provisions easier to 

apply. Therefore, proposed paragraphs 

(b) and (c) would state that the 

reduction ‘‘will be effective’’ as specified 


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53762 Federal Register / Vol. 75, No. 169 / Wednesday, September 1, 2010 / Proposed Rules 

in each paragraph. Similar proposed 

changes would also appear in 

subsequent reduction and 

discontinuance effective date rules in 

the NPRM. VA intends no substantive 

change by this new language. 

Section 5.314 Effective Dates— 

Discontinuance of Additional Disability 

Compensation Based on Parental 

Dependency 

Proposed § 5.314 would be based on 

rules in current §§ 3.500(g), (h), and (n) 

and 3.660(a)(2), which govern the 

effective dates of discontinuance of 

awards of additional disability 

compensation to a veteran with a 

dependent parent when parental 

dependency ends. Current § 3.500(h) 

refers the reader to various statutes and 

other regulations, some of which pertain 

to disability compensation rules and 

some of which refer to rules concerning 

other benefits where parental 

dependency is relevant, such as death 

compensation for a parent. Proposed 

§ 5.314 would only include information 

from the sources cross-referenced in 

current § 3.500(h) that relate to the 

discontinuance of additional disability 

compensation to a veteran when the 

financial dependency of a parent ends. 

Current §§ 3.500(g)(2), (h), (n)(2), and 

3.660(a)(2) contain rules that apply to 

discontinuance of additional disability 

compensation based on parental 

dependency that are related to events 

(marriage, divorce, annulment, and 

death) that occurred prior to October 1, 

1982. We propose to omit these 

provisions. With the passage of time, 

they have become unnecessary. It is 

unlikely that VA would now 

retroactively discontinue additional 

disability compensation because of 

events involving a veteran’s parent that 

occurred more than 28 years ago. 

Proposed § 5.314 would be a 

counterpart to only the third sentence of 

§ 3.660(a)(2) that pertains to 

discontinuance of additional disability 

compensation based on parental 

dependency. Current § 3.660(a)(2) 

addresses reduction or discontinuance 

of multiple VA benefits. Some, such as 

pension, are susceptible to reduction of 

the award of benefits because of 

increases in income or other financial 

events. The additional disability 

compensation based on parental 

dependency is not one of them. It is an 

all-or-nothing benefit. If the parent 

ceases to meet the criteria for the 

veteran’s entitlement, VA discontinues 

the additional disability compensation. 

Consequently, proposed § 5.314 would 

refer only to discontinuance of the 

additional disability compensation. 

Proposed paragraph (b) would clarify 

that, if a veteran’s parent ceases to be 

dependent because the parent’s 

economic status has improved, the 

effective date of the discontinuance of 

the additional disability compensation 

depends on whether the improvement is 

due to an increase in income or an 

increase in net worth. In the former 

case, the effective date would be the 

first day of the month after which the 

change occurred. In the latter case, the 

effective date would be the first day of 

the year after which the change 

occurred. This result is required by 38 

U.S.C. 5112(b)(4). 

Section 5.315 Effective Dates— 

Additional Disability Compensation 

Based on Decrease in the Net Worth of 

a Dependent Parent 

Proposed § 5.315, based on current 

§ 3.660(d), would provide the effective 

date rule that would apply if 

entitlement to additional disability 

compensation based on the dependency 

of a parent is reestablished after VA had 

previously denied or discontinued the 

additional disability compensation 

because of the parent’s net worth. VA 

proposes to separate the new section 

into two paragraphs—an introductory 

paragraph, which explains when the 

rule would apply, and a paragraph 

explaining the rule itself. Consistent 

with other proposed regulations in this 

NPRM, VA proposes to use the term ‘‘net 

worth’’ instead of ‘‘corpus of estate’’. 

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 provisions of the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501–3521). 

Regulatory Flexibility Act 

The Secretary hereby certifies that 

this proposed rule would not have a 

significant economic impact on a 

substantial number of small entities as 

they are defined in the Regulatory 

Flexibility Act, 5 U.S.C. 601–612. This 

proposed rule would not affect any 

small entities. Therefore, pursuant to 

5 U.S.C. 605(b), this proposed rule 

would be 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. 

VA has examined the economic, 

interagency, budgetary, legal, and policy 

implications of this proposed rule and 

has determined that it is not a 

significant regulatory action under the 

Executive Order because it will not 

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, or tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

(adjusted annually for inflation) in any 

1 year. This proposed rule would have 

no such effect on State, local, or tribal 

governments, or on the private sector. 

Catalog of Federal Domestic Assistance 

Numbers and Titles 

The catalog of Federal Domestic 

Assistance program numbers for this 

proposal are: 64.100, Automobiles and 

Adaptive Equipment for Certain 

Disabled Veterans and Members of the 

Armed Forces; 64.101, Burial Expenses 


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Allowance for Veterans; 64.102, 

Compensation for Service-Connected 

Deaths for Veterans’ Dependents; 

64.104, Pension for Non-ServiceConnected 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. 

Signing Authority 

The Secretary of Veterans Affairs, or 

designee, approved this document and 

authorized the undersigned to sign and 

submit the document to the Office of the 

Federal Register for publication 

electronically as an official document of 

the Department of Veterans Affairs. John 

R. Gingrich, Chief of Staff, Department 

of Veterans Affairs, approved this 

document on August 12, 2010, for 

publication. 

List of Subjects in 38 CFR Part 5 

Administrative practice and 

procedure, Claims, Disability benefits, 

Health care, Pensions, Radioactive 

materials, Veterans, Vietnam. 

Dated: August 19, 2010. 

William F. Russo, 

Director, Regulations Management, 

Department of Veterans Affairs. 

For the reasons set forth in the 

preamble, VA proposes to amend 38 

CFR part 5 (as proposed to be added at 

69 FR 4832, January 30, 2004, and as 

amended by adding subpart E at 69 FR 

44624, July 27, 2004) as follows: 

PART 5—COMPENSATION, PENSION, 

BURIAL, AND RELATED BENEFITS 

1. The authority citation for part 5, 

subpart E, continues to read as follows: 

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

in specific sections. 

2. Sections 5.240 through 5.251 and 

their undesignated center heading are 

added to subpart E and §§ 5.252 through 

5.259 are reserved to read as follows: 

Subpart E—Claims for Service Connection 

and Disability Compensation 

Service-Connected and Other Disability 

Compensation 

Sec. 

5.240 Disability compensation. 

5.241 Service-connected disability. 

5.242 General principles of service 

connection. 

5.243 Establishing service connection. 

5.244 Presumption of sound condition. 

5.245 Service connection based on 

aggravation of preservice injury or 

disease. 

5.246 Secondary service connection— 

disability that is proximately caused by 

service-connected disability. 

5.247 Secondary service connection— 

nonservice-connected disability 

aggravated by service-connected 

disability. 

5.248 Service connection for 

cardiovascular disease secondary to 

service-connected lower extremity 

amputation. 

5.249 Special service connection rules for 

combat-related injury or disease. 

5.250 Service connection for posttraumatic 

stress disorder. 

5.251 Current disabilities for which VA 

cannot grant service connection. 

5.252–5.259 [Reserved] 

Subpart E—Claims for Service 

Connection and Disability 

Compensation 

Service-Connected and Other Disability 

Compensation 

§ 5.240 Disability compensation. 

(a) Definition. ‘‘Disability 

compensation’’ means a monthly 

payment VA makes to a veteran for a 

service-connected disability, as 

described in § 5.241, or for a disability 

compensated as if it were service 

connected, under § 5.350, ‘‘Benefits 

under 38 U.S.C. 1151(a) for additional 

disability or death due to hospital care, 

medical or surgical treatment, 

examination, training and rehabilitation 

services, or compensated work therapy 

program.’’ 

(b) Additional disability 

compensation based on having 

dependents. Additional disability 

compensation is payable to a veteran 

who has a spouse, child, or dependent 

parent if the veteran is entitled to 

disability compensation based on a 

single or a combined disability rating of 

30 percent or more. The additional 

disability compensation authorized by 

38 U.S.C. 1115 is payable in addition to 

monthly disability compensation 

payable under 38 U.S.C. 1114. 

(Authority: 38 U.S.C. 101(13), 1110, 1114, 

1115, 1131, 1135, 1151) 

§ 5.241 Service-connected disability. 

A ‘‘service-connected disability’’ is a 

current disability as to which any of the 

following is true: 

(a) The disability was caused by an 

injury or disease incurred, or presumed 

to have been incurred, in the line of 

duty during active military service. See 

§§ 5.260 through 5.269 (concerning 

presumptions of service connection). 

(b) The disability was caused by a 

preservice injury or disease aggravated, 

or presumed to have been aggravated, in 

the line of duty during active military 

service. See § 5.245, ‘‘Service connection 

based on aggravation of preservice 

injury or disease.’’ 

(c) The disability is secondary to a 

service-connected disability, pursuant 

to §§ 5.246–5.248 (governing awards of 

secondary service connection). 

(Authority: 38 U.S.C. 1110, 1112, 1116, 1117, 

1118, 1131, 1133, 1137) 

§ 5.242 General principles of service 

connection. 

When a veteran seeks service 

connection: 

(a) VA will give due consideration to 

any evidence of record concerning the 

places, types, and circumstances of the 

veteran’s service as shown by the 

veteran’s service record, the official 

history of each organization in which 

the veteran served, the veteran’s 

medical records, and all pertinent 

medical and lay evidence; and 

(b) VA will not consider a statement 

that a veteran signed during service that: 

(1) Pertains to the origin, incurrence, 

or aggravation of an injury or disease; 

and 

(2) Was against the veteran’s interest 

at the time he or she signed it. 

(Authority: 10 U.S.C. 1219; 38 U.S.C. 1154(a)) 

§ 5.243 Establishing service connection. 

(a) Requirements. Except as provided 

in §§ 5.246, ‘‘Secondary service 

connection—disability that is 

proximately caused by serviceconnected disability’’, and 5.247, 

‘‘Secondary service connection— 

nonservice-connected disability 

aggravated by service-connected 

disability’’, and paragraph (c) of this 

section, proof of the following elements 

is required to establish service 

connection: 

(1) A current disability; 

(2) Incurrence or aggravation of an 

injury or disease in active military 

service; and 

(3) A causal link between the injury 

or disease incurred in, or aggravated by, 

active military service and the current 

disability. 

Note 1 to paragraph (a): Permanent 

disability shown in service. VA will consider 

all three elements of paragraph (a) of this 

section proven if service records establish 

that an injury or disease incurred in or 

aggravated by active military service 

produced a disability that is clearly 

permanent by its nature, such as the 

amputation of a limb or the anatomical loss 

of an organ. 

Note 2 to paragraph (a): Chronic disease or 

chronic residual of an injury in temporary 

remission. VA will not deny service 

connection for lack of a current disability 


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solely because a chronic disease, or a chronic 

residual of an injury, enters temporary 

remission. Examples of chronic diseases and 

chronic residuals of injury subject to 

temporary remission include chronic 

tinnitus, malaria, mental illness, skin disease, 

and intervertebral disc syndrome. 

(b) Time of diagnosis is not 

necessarily controlling. Proof of 

incurrence of a disease during active 

military service does not require 

diagnosis during service if the evidence 

otherwise establishes that the disease 

was incurred in service. 

(c) Chronic residuals of injuries and 

chronic diseases—(1) General rule. VA 

will grant service connection for a 

current disability not clearly due to an 

intercurrent cause if: 

(i) The current disability is caused by 

a chronic disease and competent 

evidence establishes that the veteran 

had the same chronic disease in service 

or within an applicable presumptive 

period; or 

(ii) The veteran had an injury in 

service and currently has a disability 

due to chronic residuals of the same 

injury. 

(2) Proof that a disease or residual of 

an injury is chronic. For purposes of this 

paragraph (c), VA will consider the 

following to be chronic: 

(i) A chronic disease listed in 

§ 5.261(d); 

(ii) A disease shown to be chronic by 

competent evidence; or 

(iii) A residual of an injury (such as 

scarring or nerve, muscle, skeletal, or 

joint impairment) shown to be chronic 

by competent evidence. (See also 

paragraph (d) of this section on 

establishing chronicity through 

evidence of continuity of signs or 

symptoms). 

Note to paragraph (c): Proof that a disease 

was chronic in service requires a 

combination of manifestations in service 

sufficient to identify the disease entity, and 

sufficient observation to establish chronicity 

at the time, as distinguished from merely 

isolated findings or a diagnosis in service 

including the word ‘‘chronic.’’ See also 

§ 5.260(c), ‘‘Rebutting a presumption of 

service connection set forth in §§ 5.261 

through 5.268.’’ Isolated findings in service, 

such as joint pain, any abnormality of heart 

action or heart sounds, any urinary findings 

of casts, or any cough, would not alone 

establish the presence in service of a chronic 

disease, such as arthritis, disease of the heart, 

nephritis, or pulmonary disease, first shown 

as a clear-cut clinical entity at some later 

date. 

(d) Continuity of signs or symptoms. 

Where signs or symptoms noted in 

service, or during an applicable 

presumptive period, are not considered 

a chronic disease or residual of an 

injury under paragraph (c)(2) of this 

section, service connection is 

established when all of the following are 

shown by competent evidence: 

(1) The veteran had signs or 

symptoms of an injury or disease during 

active military service or during an 

applicable presumptive period for a 

disease; 

(2) The signs or symptoms continued 

from the time of discharge or release 

from active military service or from the 

end of the applicable presumptive 

period, until the present; and 

(3) The signs or symptoms currently 

demonstrated are signs or symptoms of 

an injury or disease, or the residuals of 

an injury or disease, to which paragraph 

(d)(1) of this section refers. 

(Authority: 38 U.S.C. 101(16), 501, 1110, 

1131) 

§ 5.244 Presumption of sound condition. 

(a) Presumption of sound condition. 

VA will presume that a veteran was in 

sound condition upon entry into active 

military service, which means that the 

veteran was free from injury or disease 

except as noted in the report of a 

medical examination conducted for 

entry into active military service. 

(b) Report of entry examination not a 

condition for application of the 

presumption. The presumption of sound 

condition applies even if: 

(1) The veteran did not have a 

medical examination for entry into 

active military service; or 

(2) There is no record of the 

examination. 

(c) Medical history recorded in entry 

examination reports—(1) Medical 

histories. The presumption of sound 

condition applies if an examiner 

recorded a history of injury or disease 

in an entry examination report, but the 

examiner did not report any 

contemporaneous clinical findings 

related to such injury or disease. VA 

may consider the notation of history 

together with other evidence in 

determining whether the presumption 

of sound condition is rebutted under 

paragraph (d) of this section. 

(2) Medical examination reports. The 

presumption of sound condition is 

rebuttable even if an entry medical 

examination shows that the examiner 

tested specifically for a certain injury or 

disease and did not find that injury or 

disease, if other evidence of record is 

sufficient to overcome the presumption. 

(d) Rebutting the presumption. 

(1) For veterans with any wartime 

service and for veterans with peacetime 

service after December 31, 1946, VA can 

rebut the presumption only with clear 

and unmistakable evidence that the 

injury or disease resulting in the 

disability for which the veteran claims 

service connection both: 

(i) Preexisted service; and 

(ii) Was not aggravated by service, 

which means that 

(A) During service the disability 

resulting from the preexisting injury or 

disease did not increase in severity or 

(B) Any such increase was due to the 

natural progress of a disease. 

(2) To determine whether there was 

an increase in the severity of disability 

during service (or during any applicable 

presumptive period) resulting from a 

preexisting injury or disease, see 

§ 5.245(b). 

(3) If there was an increase in the 

severity of disability during service (or 

during any applicable presumptive 

period) resulting from a preexisting 

injury or disease, to determine whether 

the increase was due to the natural 

progress of a disease, see § 5.245(c). 

(Authority: 38 U.S.C. 1110, 1111, 1131, 1137) 

§ 5.245 Service connection based on 

aggravation of preservice injury or disease. 

(a) Presumption of aggravation. When 

an injury or disease was noted in the 

report of examination for entry into 

active military service, VA will presume 

that active military service aggravated a 

preexisting injury or disease if there was 

an increase in disability resulting from 

the injury or disease during service (or 

during any applicable presumptive 

period). 

(b) Determining whether disability 

increased during service—(1) Increase 

in severity. For purposes of this section, 

increase in disability during active 

military service means the disability 

resulting from the preexisting injury or 

disease permanently became more 

severe during service (or during any 

applicable presumptive period) than it 

was before active military service. 

(2) Temporary flare-ups. Except as 

provided in paragraph (b)(4) of this 

section, temporary or intermittent flareups of signs or symptoms of a 

preexisting injury or disease do not 

constitute aggravation in service unless 

the underlying condition worsened, 

resulting in increased disability. 

(3) Effects of medical or surgical 

treatment. The usual effects of medical 

or surgical treatment in service that 

ameliorates a preexisting injury or 

disease, such as postoperative scars, or 

absent or poorly functioning parts or 

organs, are not an increase in the 

severity of the underlying condition and 

they will not be service connected 

unless the preexisting injury or disease 

was otherwise aggravated by service. 

(4) Combat or prisoner-of-war service. 

The development of signs or symptoms, 

whether temporary or permanent, of a 


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preexisting injury or disease during or 

proximately following combat with the 

enemy, as defined in § 5.249(a)(2), or 

following status as a prisoner of war 

will establish aggravation of the 

disability resulting from that preexisting 

injury or disease. 

(c) Rebutting the presumption— 

natural progress of a disease. The 

presumption of aggravation is rebutted 

if VA specifically finds by clear and 

unmistakable evidence that the increase 

in the severity of disability during 

service (or during an applicable 

presumptive period) was normal for the 

disease, that is, active military service 

did not contribute to the increase. 

(Authority: 38 U.S.C. 1153, 1154) 

§ 5.246 Secondary service connection— 

disability that is proximately caused by 

service-connected disability. 

Except as provided in § 5.365(a), VA 

will grant service connection for a 

disability that is proximately caused by 

a service-connected disability. 

(Authority: 38 U.S.C. 501(a), 1110, 1131) 

§ 5.247 Secondary service connection— 

nonservice-connected disability aggravated 

by service-connected disability. 

VA will grant service connection for 

any increase in severity of a nonserviceconnected disability if the increase was 

proximately caused by a serviceconnected disability, and the increase 

was not due to the natural progress of 

a nonservice-connected disease. 

However, VA cannot grant service 

connection under this section without 

medical evidence establishing the 

severity of the nonservice-connected 

disability before or contemporaneous 

with the increase in severity due to the 

service-connected disability. The agency 

of original jurisdiction (AOJ) will use 

the Schedule for Rating Disabilities in 

part 4 of this chapter to rate the severity 

level of the nonservice-connected 

disability prior to aggravation, any 

increase in severity due to the natural 

progress of the disease, and the current 

severity level of the disability. The AOJ 

will then determine the amount of 

aggravation by subtracting the rating 

prior to aggravation and any increase in 

severity due to the natural progress of 

the disease from the current severity 

level. The result will be the increase 

proximately caused by a serviceconnected disability. VA will grant 

service connection only for that 

increase. 

(Authority: 38 U.S.C. 501(a), 1110, 1131) 

§ 5.248 Service connection for 

cardiovascular disease secondary to 

service-connected lower extremity 

amputation. 

VA will grant secondary service 

connection for ischemic heart disease or 

other cardiovascular disease that 

develops after a veteran has a serviceconnected amputation of one lower 

extremity at or above the knee or 

service-connected amputations of both 

lower extremities at or above the ankles. 

(Authority: 38 U.S.C. 501(a), 1110, 1131) 

§ 5.249 Special service connection rules 

for combat-related injury or disease. 

(a) Combat-related incurrence or 

aggravation of injury or disease shown 

by lay or other evidence. (1) VA will 

accept that an injury or disease was 

incurred or aggravated in service if a 

veteran engaged in combat with the 

enemy during a period of war, 

campaign, or expedition, and there is 

satisfactory lay or other evidence that 

the injury or disease was incurred in or 

was aggravated by such combat. Lay 

evidence may include a veteran’s 

description of an event, disease, or 

injury. VA will accept such evidence as 

sufficient proof of incurrence or 

aggravation in service of an injury or 

disease even though there is no official 

record of the incurrence or aggravation. 

The evidence must be consistent with 

the circumstances, conditions, or 

hardships of the veteran’s combat with 

the enemy. Incurrence or aggravation 

established under this paragraph may be 

rebutted by clear and convincing 

evidence to the contrary. 

(2) ‘‘Combat with the enemy’’ means 

personal participation in an actual fight 

or encounter with a military foe, hostile 

unit, or instrument or weapon of war 

either: 

(i) As a combatant; or 

(ii) While performing a duty in 

support of combatants, such as 

providing medical care to the wounded. 

(b) Decorations as evidence of 

combat. When a veteran has received 

any of the combat decorations listed 

below, VA will presume that the veteran 

engaged in combat with the enemy, 

unless there is clear and convincing 

evidence to the contrary: 

(1) Air Force Cross 

(2) Air Medal with ‘‘V’’ Device 

(3) Army Commendation Medal with 

‘‘V’’ Device 

(4) Bronze Star Medal with ‘‘V’’ Device 

(5) Combat Action Ribbon 

(6) Combat Infantryman Badge 

(7) Combat Medical Badge 

(8) Combat Aircrew Insignia 

(9) Distinguished Service Cross 

(10) Joint Service Commendation 

Medal with ‘‘V’’ Device 

(11) Medal of Honor 

(12) Navy Commendation Medal with 

‘‘V’’ Device 

(13) Navy Cross 

(14) Purple Heart 

(15) Silver Star 

(16) Combat Action Badge 

(17) Any other form of decoration that 

the Secretary concerned may designate 

for award exclusively to persons for 

actions performed while engaged in 

combat with the enemy. 

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

Cross References: § 5.141 (evidence in 

claims of former prisoners of war); 

§ 5.245(b)(4); § 5.250(b)(2). 

§ 5.250 Service connection for 

posttraumatic stress disorder. 

(a) Elements of a claim for service 

connection for posttraumatic stress 

disorder (PTSD). Service connection for 

PTSD requires: 

(1) Medical evidence diagnosing 

PTSD in accordance with § 4.125(a) of 

this chapter; 

(2) A link, established by medical 

evidence, between current signs or 

symptoms and an in-service stressor; 

and 

(3) Except as provided in paragraphs 

(c), (d), and (e) of this section, credible 

supporting evidence that the claimed inservice stressor occurred. For purposes 

of this section, ‘‘credible supporting 

evidence’’ means credible evidence from 

any source, other than the claimant’s 

statement, that corroborates the 

occurrence of the in-service stressor. 

(b) VA will not deny a claim without 

trying to verify the claimed stressor. If 

the existence of the claimed stressor is 

not verified by credible evidence, VA 

will seek verification from the 

appropriate service department or other 

entity. The exception to this rule is 

when, upon VA’s request, the claimant 

fails to provide the information needed 

by the appropriate service department 

or other entity to try to verify the 

claimed stressor. 

(c) Special rule for veterans diagnosed 

with PTSD during active service. If the 

evidence establishes a diagnosis of 

PTSD during service and the claimed 

stressor is related to that service, 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 active service, 

the veteran’s lay testimony alone may 

establish the occurrence of the claimed 

in-service stressor. 

(d) Special rules for veterans who 

engaged in combat with the enemy or 

who were prisoners of war. To 

determine if a stressor occurred during 


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combat with the enemy or while a 

prisoner of war, VA will apply the rules 

in § 5.249 or § 5.141, respectively. 

(e)(1) Stressor confirmed by VA 

psychiatrist or psychologist. In the 

absence of clear and convincing 

evidence to the contrary, and provided 

the claimed in-service stressor is 

consistent with the places, types, and 

circumstances of the veteran’s service, 

the veteran’s lay testimony alone may 

establish the occurrence of the stressor 

if: 

(i) The stressor is related to the 

veteran’s fear of hostile military or 

terrorist activity; and 

(ii) A VA psychiatrist or psychologist, 

or a psychiatrist or psychologist with 

whom VA has contracted, confirms that 

the stressor is adequate to support a 

diagnosis of posttraumatic stress 

disorder and that the veteran’s 

symptoms are related to the claimed 

stressor. 

(2) For purposes of this paragraph, 

‘‘fear of hostile military or terrorist 

activity’’ means: 

(i) That a veteran experienced, 

witnessed, or was confronted with an 

event or circumstance that involved 

actual or threatened death or serious 

injury, or a threat to the physical 

integrity of the veteran or others, such 

as: 

(A) From an actual or potential 

improvised explosive device; 

(B) Vehicle-imbedded explosive 

device; 

(C) Incoming artillery, rocket, or 

mortar fire; 

(D) Grenade; 

(E) Small arms fire, including 

suspected sniper fire; or 

(F) Attack upon friendly military 

aircraft, and 

(ii) The veteran’s response to the 

event or circumstance involved a 

psychological or psycho-physiological 

state of fear, helplessness, or horror. 

(f) Special rules for establishing a 

stressor based on personal assault. (1) 

VA will not deny a PTSD claim that is 

based on in-service personal assault 

without: 

(i) Advising the veteran that evidence 

from sources other than the veteran’s 

service records, including evidence 

described in paragraph (c)(2) of this 

section, may constitute credible 

supporting evidence of the stressor; and 

(ii) Providing the veteran with an 

opportunity to furnish this type of 

evidence or advise VA of potential 

sources of such evidence. 

(2) Evidence that may establish a 

stressor based on in-service personal 

assault includes, but is not limited to, 

the following: 

(i) Records from law enforcement 

authorities, rape crisis centers, mental 

health counseling centers, hospitals, or 

physicians; 

(ii) Pregnancy tests or tests for 

sexually transmitted diseases; 

(iii) Statements from family members, 

roommates, fellow servicemembers, or 

clergy; or 

(iv) Evidence of behavioral changes 

following the claimed assault (which 

may be shown in any of the following 

sources), including: 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. 

(3) VA may submit any evidence that 

it receives to an appropriate medical or 

mental health professional for an 

opinion as to whether it indicates that 

a personal assault occurred. 

(Authority: 38 U.S.C. 501(a), 1110, 1131, 

1154) 

§ 5.251 Current disabilities for which VA 

cannot grant service connection. 

(a) General rule. VA will not grant 

service connection for the following 

disabilities because they are not the 

result of an injury or disease for 

purposes of service connection: 

(1) Congenital or developmental 

defects (such as congenital or 

developmental refractive error of the 

eye); 

(2) Developmental personality 

disorders; or 

(3) Developmental intellectual 

disability (mental retardation). 

(b) Distinguishable disabilities. VA 

will grant service connection for the 

following disabilities, which are 

scientifically distinguishable from those 

listed in paragraph (a) of this section 

and actually result from an injury or 

disease: 

(1) Malignant or pernicious myopia; 

(2) Personality change (as 

distinguished from personality disorder) 

as part of, or proximately caused by, an 

organic mental disorder or a serviceconnected general medical condition 

(such as psychomotor epilepsy), or due 

to injury. See § 5.246, ‘‘Secondary 

service connection—disability that is 

proximately caused by serviceconnected disability’’. 

(3) Nondevelopmental intellectual 

disability as part of, or proximately 

caused by, a service-connected 

disability. See § 5.246, ‘‘Secondary 

service connection—disability that is 

proximately caused by serviceconnected disability.’’ 

(c) Superimposed disabilities. 

Paragraph (a) of this section does not 

preclude granting service connection for 

a disability that is superimposed on a 

disability listed in paragraph (a). 

(d) Hereditary diseases. Paragraph 

(a)(1) of this section does not preclude 

granting service connection for 

disability due to an inherited or familial 

disease (as distinguished from 

congenital or developmental defects in 

paragraph (a)(1) of this section). See 

§ 5.261(f) regarding presumptions 

related to certain inherited or familial 

diseases. 

(e) Diseases of allergic etiology. 

Paragraph (a) of this section does not 

preclude granting service connection for 

disability due to diseases of allergic 

etiology, including, but not limited to, 

bronchial asthma and urticaria. 

(Authority: 38 U.S.C. 501, 1110, 1131) 

§§ 5.252–5.259 [Reserved] 

3. Sections 5.280 through 5.285 and 

their undesignated center heading are 

added to subpart E and §§ 5.286 through 

5.299 are reserved to read as follows: 

Rating Service-Connected Disabilities 

Sec. 

5.280 General rating principles. 

5.281 Multiple 0-percent service-connected 

disabilities. 

5.282 Special consideration for paired 

organs and extremities. 

5.283 Total and permanent total ratings and 

unemployability. 

5.284 Total disability ratings for disability 

compensation purposes. 

5.285 Continuance of total disability 

ratings. 

5.286–5.299 [Reserved] 

Rating Service-Connected Disabilities 

§ 5.280 General rating principles. 

(a) Use of rating schedule. VA will use 

the Schedule for Rating Disabilities in 

part 4 of this chapter to rate the degree 

of disabilities in claims for disability 

compensation and in eligibility 

determinations. Instructions for using 

the schedule are in part 4. 

(b) Extra-schedular ratings in unusual 

cases—(1) Disability compensation. To 

accord justice to the exceptional case 

where the Veterans Service Center 

(VSC) finds the schedular ratings to be 

inadequate, the Under Secretary for 

Benefits or the Director of the 

Compensation and Pension Service, 

upon VSC submission, is authorized to 

approve on the basis of the criteria set 

forth in this paragraph (b) an extraschedular rating commensurate with the 

average impairment of earning capacity 

due exclusively to the service-connected 

disability or disabilities. The governing 

norm in these exceptional cases is a 

finding that the application of the 

regular schedular standards is 

impractical because the case presents an 


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exceptional or unusual disability 

picture with such related factors as: 

(i) Marked interference with 

employment, or 

(ii) Frequent periods of 

hospitalization. 

(2) Effective date. The effective date of 

an extra-schedular rating, either 

granting or increasing disability 

compensation, will be in accordance 

with § 5.311 in original and reopened 

claims and in accordance with § 5.312 

in claims for increased benefits. 

(c) Advisory opinions. The VSC may 

submit to the Director of the 

Compensation and Pension Service for 

advisory opinion cases in which it does 

not understand the application of the 

Schedule for Rating Disabilities in part 

4 of this chapter or in which the 

propriety of an extra-schedular rating is 

questionable. 

(Authority: 38 U.S.C. 501, 1155) 

§ 5.281 Multiple 0-percent serviceconnected disabilities. 

VA may assign a 10-percent combined 

rating to a veteran with two or more 

permanent service-connected 

disabilities that are each rated as 0- 

percent disabling under the Schedule 

for Rating Disabilities in part 4 of this 

chapter, if the combined effect of such 

disabilities interferes with normal 

employability. VA cannot assign this 10- 

percent rating if the veteran has any 

other compensable rating. 

(Authority: 38 U.S.C. 501, 1155) 

§ 5.282 Special consideration for paired 

organs and extremities. 

(a) General rule. VA will pay 

disability compensation for the 

combination of service-connected and 

nonservice-connected disabilities 

involving paired organs and extremities 

described in paragraph (b) of this 

section as if the nonservice-connected 

disability were service connected, but 

VA will not pay compensation for the 

nonservice-connected disability if the 

veteran’s willful misconduct 

proximately caused it. 

(b) Qualifying combination of 

disabilities. Disability compensation 

under paragraph (a) of this section is 

payable for the following disability 

combinations: 

(1) Service-connected impairment of 

vision in one eye and nonserviceconnected impairment of vision in the 

other eye if: 

(i) The impairment of vision in each 

eye is rated at a visual acuity of 20/200 

or less; or 

(ii) The peripheral field of vision for 

each eye is 20 degrees or less. 

(2) Service-connected anatomical loss 

or loss of use of one kidney and 

nonservice-connected involvement of 

the other kidney. 

(3) Service-connected hearing 

impairment in one ear compensable to 

a degree of 10 percent or more and 

nonservice-connected hearing 

impairment in the other ear that meets 

the provisions of § 5.366 of this chapter, 

‘‘Disability due to impaired hearing.’’ 

(4) Service-connected anatomical loss 

or loss of use of one hand or foot and 

nonservice-connected anatomical loss or 

loss of use of the other hand or foot. 

(5) Permanent service-connected 

disability of one lung rated as 50 

percent or more disabling and 

nonservice-connected disability of the 

other lung. 

(c) Offset of judgment, settlement, or 

compromise—(1) Required offset. If a 

veteran receives money or property of 

value in a judgment, settlement, or 

compromise from a cause of action for 

a qualifying nonservice-connected 

disability involving an organ or 

extremity described in paragraph (b) of 

this section, VA will offset the value of 

such judgment, settlement, or 

compromise against the increased 

disability compensation payable under 

this section. 

(2) Offset procedure. Beginning the 

first of the month after the veteran 

receives the money or property as 

damages, VA will not pay the increased 

disability compensation payable under 

this section until the total amount of 

such increased compensation that 

would otherwise have been payable 

equals the total amount of any money 

received as damages and the fair market 

value of any property received as 

damages. VA will not withhold the 

increased disability compensation 

payable before the end of the month in 

which the money or property was 

received. 

(3) Exception for Social Security or 

workers’ compensation benefits. 

Benefits received for the qualifying 

nonservice-connected disability under 

Social Security or workers’ 

compensation laws are not subject to the 

offset described in paragraph (c)(1) of 

this section, even if the benefits are 

awarded in a judicial proceeding. 

(4) Duty to report receipt of judgment, 

settlement, or compromise. A veteran 

entitled to receive increased disability 

compensation under this section must 

report to VA the total amount of any 

money and the fair market value of any 

property received as damages described 

in paragraph (c)(1) of this section. 

Expenses related to the cause of action, 

such as attorneys’ fees, cannot be 

deducted from the total amount to be 

reported. 

(Authority: 38 U.S.C. 1160) 

§ 5.283 Total and permanent total ratings 

and unemployability. 

(a) Total disability ratings—(1) 

General. VA will consider total 

disability to exist when any impairment 

of mind or body renders it impossible 

for the average person to follow a 

substantially gainful occupation. VA 

generally will not assign total ratings for 

temporary exacerbations or acute 

infectious diseases except where the 

Schedule for Rating Disabilities in part 

4 of this chapter (the Schedule) 

specifically prescribes total ratings for 

temporary exacerbations or acute 

infectious diseases. For compensation 

purposes, a total disability rating may be 

granted without regard to whether the 

impairment is shown to be permanent. 

(2) Schedular rating or total disability 

rating based on individual 

unemployability. VA may assign a total 

rating for any disability or combination 

of disabilities in the following cases: 

(i) The Schedule prescribes a 100- 

percent rating, or 

(ii) in a case in which VA assigns a 

rating of less than 100 percent, if the 

veteran meets the requirements of § 4.16 

of this chapter or, in pension cases, the 

requirements of § 4.17 of this chapter. 

(3) Ratings of total disability based on 

history. In the case of a disability that 

has undergone some recent 

improvement, VA may nonetheless 

assign a rating of total disability, 

provided: 

(i) That the disability was severe 

enough in the past to warrant a total 

disability rating; 

(ii) That the disability: 

(A) Required extended, continuous, or 

intermittent hospitalization; 

(B) Produced total industrial 

incapacity for at least 1 year; or 

(C) Results in recurring, severe, 

frequent, or prolonged exacerbations; 

and 

(iii) That it is the opinion of the 

agency of original jurisdiction (AOJ) 

that, despite the recent improvement of 

the physical condition, the veteran will 

be unable to adjust into a substantially 

gainful occupation. The AOJ will 

consider the frequency and duration of 

totally incapacitating exacerbations 

since incurrence of the original injury or 

disease and the periods of 

hospitalization for treatment in 

determining whether the average person 

could reestablish himself or herself in a 

substantially gainful occupation. 

(b) Permanent total disability. VA will 

consider a total disability to be 

permanent when an impairment of 

mind or body that makes it impossible 

for the average person to follow a 

substantially gainful occupation is 

reasonably certain to continue 


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throughout the life of the disabled 

person. 

(1) VA will consider the following 

disabilities or conditions as constituting 

a permanent total disability: The 

permanent anatomical loss or loss of use 

of both hands, or of both feet, or of one 

hand and one foot; the anatomical loss 

or loss of sight of both eyes; being 

permanently so significantly disabled as 

to need regular aid and attendance; or 

being permanently bedridden. 

(2) VA will consider an injury or 

disease of long-standing that is actually 

totally incapacitating as a permanent 

total disability, if the probability of 

permanent improvement under 

treatment is remote. 

(3) VA may not assign a permanent 

total disability rating as a result of any 

incapacity from acute infectious disease, 

accident, or injury, unless there is 

present the permanent anatomical loss 

or loss of use of extremities or the 

permanent anatomical loss or loss of 

sight of both eyes, as described in 

paragraph (b)(1) of this section, or the 

person is permanently so significantly 

disabled as to need regular aid and 

attendance or permanently bedridden, 

or when it is reasonably certain that a 

subsidence of the acute or temporary 

symptoms will be followed by 

irreducible totality of disability by way 

of residuals. 

(4) VA may consider the age of the 

disabled person in determining whether 

a total disability is permanent. 

(c) Insurance ratings. A rating of 

permanent and total disability for 

insurance purposes will have no effect 

on a rating for compensation or pension. 

(Authority: 38 U.S.C. 501(a), 1155) 

§ 5.284 Total disability ratings for 

disability compensation purposes. 

(a) General. Subject to the limitation 

in paragraph (b) of this section, total 

disability compensation ratings may be 

assigned under the provisions of 

§ 5.283. 

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

(b) Incarcerated veterans. VA will not 

assign a total disability rating based on 

individual unemployability for 

compensation purposes while a veteran 

is incarcerated in a Federal, State, or 

local penal institution for conviction of 

a felony if the rating would first become 

effective during such period of 

incarceration. However, VA will 

reconsider the case to determine if 

continued eligibility for such rating 

exists if a total disability rating based on 

individual unemployability existed 

prior to incarceration for the felony and 

routine review was required. 

(Authority: 38 U.S.C. 5313(c)) 

(c) Program for vocational 

rehabilitation. Each time VA assigns a 

total disability rating based on 

individual unemployability, the agency 

of original jurisdiction will inform the 

Vocational Rehabilitation and 

Employment Service of the rating so the 

Vocational Rehabilitation and 

Employment Service may offer to 

evaluate whether it is reasonably 

feasible for the veteran to achieve a 

vocational goal. 

(Authority: 38 U.S.C. 1163) 

§ 5.285 Continuance of total disability 

ratings. 

(a) General. VA will not reduce a total 

disability rating that was based on the 

severity of a person’s disability or 

disabilities without examination 

showing material improvement in 

physical or mental condition. VA may 

reduce a total disability rating that was 

based on the severity of a person’s 

disability or disabilities without 

examination if the rating was based on 

clear error. 

(1) VA will consider examination 

reports showing material improvement 

in conjunction with all the facts of 

record, including whether: 

(i) The veteran improved under the 

ordinary conditions of life, i.e., while 

working or actively seeking work; or 

(ii) The symptoms have been brought 

under control by prolonged rest or by 

following a regimen which precludes 

work. 

(2) If either circumstance in paragraph 

(a)(1)(ii) of this section applies, VA will 

not reduce a total disability rating until 

VA has reexamined the person after a 

period of 3 to 6 months of employment. 

(3) Paragraphs (a), (a)(1), and (a)(2) of 

this section do not apply to a total rating 

that was purely based on hospital, 

surgical, or residence treatment, or 

individual unemployability. 

(b) Individual unemployability. (1) VA 

may reduce a service-connected total 

disability rating based on individual 

unemployability upon a showing of 

clear and convincing evidence of actual 

employability. 

(2) When a veteran with a total 

disability rating based on individual 

unemployability is undergoing 

vocational rehabilitation, education, or 

training, VA will not reduce the rating 

because of that rehabilitation, 

education, or training unless the AOJ 

receives: 

(i) Evidence of marked improvement 

or recovery in physical or mental 

conditions that demonstrates 

affirmatively the veteran’s capacity to 

pursue the vocation or occupation for 

which the training is intended to qualify 

him or her; 

(ii) Evidence of employment progress, 

income earned, and prospects of 

economic rehabilitation that 

demonstrates affirmatively the veteran’s 

capacity to pursue the vocation or 

occupation for which the training is 

intended to qualify him or her; or 

(iii) Evidence that the physical or 

mental demands of the course are 

obviously incompatible with total 

disability. 

(3) Neither participation in, nor the 

receipt of remuneration as a result of 

participation in, a therapeutic or 

rehabilitation activity under 38 U.S.C. 

1718 will be considered evidence of 

employability. 

(4) If a veteran with a total disability 

rating based on individual 

unemployability begins a substantially 

gainful occupation, VA may not reduce 

the veteran’s rating solely on the basis 

of having secured and followed such 

substantially gainful occupation unless 

the veteran maintains the occupation for 

a period of 12 consecutive months. For 

purposes of this subparagraph, VA will 

not consider brief interruptions in 

employment to be breaks in otherwise 

continuous employment. 

(Authority: 38 U.S.C. 501(a), 1155, 1163(a)) 

Cross References: § 5.170 (Calculation 

of 5-year, 10-year, and 20-year 

protection periods); § 5.172 (Protection 

of continuous 20-year ratings). 

§§ 5.286–5.299 [Reserved] 

4. Sections 5.300, 5.302, 5.303, and 

5.304 and their undesignated center 

heading are added to subpart E and 

§§ 5.301 and 5.305 through 5.310 are 

reserved to read as follows: 

Additional Disability Compensation Based 

on a Dependent Parent 

5.300 Establishing dependency of a parent. 

5.301 [Reserved] 

5.302 General income rules—parent’s 

dependency. 

5.303 Deductions from income—parent’s 

dependency. 

5.304 Exclusions from income—parent’s 

dependency. 

5.305–5.310 [Reserved] 

Additional Disability Compensation 

Based on a Dependent Parent 

Note: Sections 5.300 and 5.302 through 

5.304 of this part concern income rules for 

purposes of calculating benefits for a veteran 

receiving disability compensation under 

§ 5.240(b). For establishing dependency for 

purposes of additional dependency and 

indemnity compensation, see subpart D of 

this part. For income rules relating to 

pension benefits, see subpart F of this part. 


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§ 5.300 Establishing dependency of a 

parent. 

(a) Conclusive dependency. (1) VA 

will find that a veteran’s parent is 

dependent if the parent is not residing 

in a foreign country and the parent’s 

monthly income, as counted in 

accordance with §§ 5.302 through 5.304, 

does not exceed the following amounts: 

(i) $400 for a mother or father, or a 

remarried parent and parent’s spouse, 

not living together, or $660 for a mother 

and father, or a remarried parent and 

parent’s spouse, living together; and 

(ii) $185 for each additional family 

member, as defined by paragraph (c) of 

this section. 

(2) If a parent meets the requirements 

of paragraph (a)(1) of this section, VA 

will not consider net worth. 

Note to paragraph (a): Sections 5.300 and 

5.302 through 5.304 of this part concern 

income rules for purposes of calculating 

benefits for a veteran receiving disability 

compensation under § 5.240(b). For 

establishing dependency for purposes of 

additional dependency and indemnity 

compensation, see subpart D of this part. For 

income rules relating to pension benefits, see 

subpart F of this part. 

(b) Factual dependency. If a parent 

does not meet the requirements of 

paragraph (a)(1) of this section, the 

veteran must establish dependency of 

the parent based on the following rules: 

(1) Income requirement. VA will find 

dependency if the parent does not have 

sufficient income to provide reasonable 

maintenance for the parent, a parent’s 

spouse living together with the parent, 

and any additional family members, as 

defined in paragraph (c) of this section. 

(i) Reasonable maintenance includes 

not just basic necessities such as 

housing, food, clothing, and medical 

care, but also other items generally 

necessary to provide those conveniences 

and comforts of living consistent with 

the parent’s reasonable style of life. 

(ii) A finding that the parent’s income 

includes financial contributions from 

the veteran does not establish that the 

parent is the veteran’s dependent. VA 

will consider such contributions in 

connection with all of the other 

evidence when deciding factual 

dependency. 

(2) Net worth considered. (i) VA will 

not find that dependency of a parent 

exists when some part of the parent’s 

net worth should reasonably be used for 

that parent’s maintenance. See § 5.414, 

‘‘Net worth determinations for Improved 

Pension,’’ for the factors used to 

determine whether net worth should 

reasonably be used for maintenance. 

(ii) Net worth of a minor family 

member will be considered income of 

the parent only if it is actually available 

to the veteran’s parent for the minor’s 

support. 

(c) Definition of family member. For 

purposes of this section, the term 

‘‘family member’’ means a relative who 

lives with the parent, other than a 

spouse, whom the parent is under a 

moral or legal obligation to support. 

This includes, but is not limited to, a 

relative under the legal age in the state 

where the parent resides, a relative of 

any age who is dependent on the parent 

because of physical or mental 

incapacity, and a relative who is 

physically absent from the household 

for a temporary purpose or for reasons 

beyond the relative’s control. 

(d) Duty to report change in 

dependency status. If a veteran is 

receiving additional disability 

compensation because of a parent’s 

dependency and the parent’s income 

exceeds the applicable amount specified 

in paragraph (a)(1) of this section, the 

veteran must report an increase in the 

parent’s income or net worth to VA 

when the veteran acquires knowledge of 

the increase. Failure to report such an 

increase may create an overpayment 

subject to recovery by VA. 

(e) Remarriage of a parent. 

Dependency will not be discontinued 

solely because a parent has married or 

remarried after VA has granted 

additional disability compensation for a 

dependent parent. Additional disability 

compensation for a parent’s dependency 

will be continued if evidence is 

submitted showing that the parent 

continues to meet the requirement for a 

finding of conclusive dependency or 

factual dependency under this section. 

(Authority: 38 U.S.C. 102, 1115, 1135) 

§ 5.301 [Reserved] 

§ 5.302 General income rules—parent’s 

dependency. 

(a) All payments included in income. 

VA will count all payments of any kind 

from any source in determining the 

income of a veteran’s parent, except as 

provided in § 5.304, ‘‘Exclusions from 

income—parent’s dependency.’’ For the 

definition of ‘‘payments’’, see § 5.370(h). 

(b) Spousal income combined. The 

dependent parent’s income includes the 

income of the parent and the parent’s 

spouse, unless the marriage has been 

terminated or the parent is separated 

from his or her spouse. Income is 

combined whether the parent’s spouse 

is the veteran’s other parent or the 

veteran’s stepparent. The income of the 

parent’s spouse will be subject to the 

same rules that are applicable to 

determining the income of the veteran’s 

parent. 

(c) Income of family members under 

21 years of age. VA will count income 

earned by a family member who is 

under 21 years of age but will consider 

income from a business or property 

(including trusts) of such a family 

member only if that income is actually 

available to the veteran’s parent for the 

support of that family member. For 

purposes of this section, ‘‘family 

member’’ is defined in § 5.300(c). 

(d) Income-producing property. VA 

will count income from all property, 

real or personal, in which a veteran’s 

parent has an interest. See § 5.410(f), 

‘‘Income-producing property,’’ for how 

VA determines ownership of property. 

(e) Calculation of income from profit 

on the sale of property. The following 

rules apply when determining the 

amount of income a parent receives 

from net profit on the sale of business 

or non-business real or personal 

property, except for net profit on the 

sale of a parent’s principal residence, 

which is governed by § 5.304(h). 

(1) Value deducted from sales price. 

(i) If the parent purchased the property 

after VA established the veteran’s 

entitlement to additional disability 

compensation based on the parent’s 

dependency, VA will deduct the 

purchase price, including the cost of 

improvements, from the selling price to 

determine net profit. 

(ii) If the parent purchased the 

property before VA established the 

veteran’s entitlement to additional 

disability compensation based on the 

parent’s dependency, VA will deduct 

the value of the property on the date of 

entitlement from the selling price to 

determine net profit. 

(2) Installment sales. If the parent 

receives payments from the sale of the 

property in installments, such payments 

will not be considered income until the 

total amount received is equal to the 

purchase price of the property 

(including cost of improvements), or, 

where paragraph (e)(1)(ii) of this section 

applies, until the total amount received 

is equal to the value of the property on 

the date VA established the veteran’s 

entitlement to additional disability 

compensation based on the parent’s 

dependency. Principal and interest 

received with each payment will not be 

counted separately. 

(Authority: 38 U.S.C. 102) 

§ 5.303 Deductions from income—parent’s 

dependency. 

(a) Expenses of a business or 

profession. VA will deduct from a 

parent’s income necessary operating 

expenses of a business, farm, or 

profession. See § 5.413 for how to 

calculate these expenses. 


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(b) Expenses associated with 

recoveries for death or disability. VA 

will deduct from a parent’s income 

medical, legal, or other expenses 

incident to injury or death from 

recoveries for such injury or death. For 

purposes of this paragraph, the recovery 

may be from any of the following 

sources: 

(1) Commercial disability, accident, 

life, or health insurance; 

(2) The Office of Workers’ 

Compensation Programs of the U.S. 

Department of Labor; 

(3) The Social Security 

Administration; 

(4) The Railroad Retirement Board; 

(5) Any workmen’s compensation or 

employer’s liability statute; or 

(6) Legal damages collected for 

personal injury or death. 

(c) Certain salary deductions not 

deductible. For the purpose of 

calculating a parent’s income, a salary 

may not be reduced by the amount of 

deductions made under a retirement act 

or plan or for income tax withholding. 

(Authority: 38 U.S.C. 102) 

§ 5.304 Exclusions from income—parent’s 

dependency. 

The following is a list of exclusions 

that VA will not count as income when 

calculating income for the purpose of 

establishing a parent’s dependency. 

(a) Property rental value. The rental 

value of a residence a parent owns and 

lives in. 

(b) Certain waived retirement benefits. 

Retirement benefits from any of the 

following sources, if the benefits have 

been waived pursuant to Federal statute: 

(1) Civil Service Retirement and 

Disability Fund; 

(2) Railroad Retirement Board; 

(3) District of Columbia (paid to 

firemen, policemen, or public school 

teachers); or 

(4) Former United States Lighthouse 

Service. 

(c) Death gratuity. Death gratuity 

payments by the Secretary concerned 

under 10 U.S.C. 1475 through 1480. 

This includes death gratuity payments 

in lieu of payments under 10 U.S.C. 

1478 made to certain survivors of 

Persian Gulf conflict veterans 

authorized by sec. 307, Public Law 102– 

25, 105 Stat. 82. 

(d) Certain VA benefit payments. The 

following VA benefit payments: 

(1) Payments under 38 U.S.C. chapter 

11, ‘‘Compensation for ServiceConnected Disability or Death’’; 

(2) Payments under 38 U.S.C. chapter 

13, ‘‘Dependency and Indemnity 

Compensation for Service-Connected 

Death’’; 

(3) Nonservice-connected VA 

disability and death pension payments; 

(4) Payments under 38 U.S.C. 5121, 

‘‘Payment of certain accrued benefits 

upon death of a beneficiary’’; 

(5) Payments under 38 U.S.C. 2302, 

‘‘Funeral expenses’’; and 

(6) The veteran’s month-of-death rate 

paid to a surviving spouse under 

§ 5.695. 

(e) Certain life insurance payments. 

Payments under policies of 

Servicemembers’ Group Life Insurance, 

United States Government Life 

Insurance, National Service Life 

Insurance, or Veterans’ Group Life 

Insurance. 

(f) State service bonuses. Payments of 

a bonus or similar cash gratuity by any 

State based upon service in the Armed 

Forces. 

(g) Fire loss reimbursement. Proceeds 

from fire insurance. 

(h) Profit from sale of principal 

residence. Net profit from the sale of the 

parent’s principal residence. 

(1) Extent of exclusion. VA will not 

count net profit realized from the sale of 

the parent’s principal residence to the 

extent that it is applied within the 

calendar year of the sale, or the 

following calendar year, to the purchase 

price of another residence as the 

parent’s principal residence. 

(2) Limitation on date of purchase of 

replacement residence. This exclusion 

does not apply if the parent applied the 

net profit from the sale to the price of 

a residence purchased earlier than the 

calendar year preceding the calendar 

year of sale of the old residence. 

(3) Time limit for reporting 

application of profit to purchase of 

replacement residence. To qualify for 

this exclusion, the veteran must report 

the application of the net profit from the 

sale of the old residence to the purchase 

of the replacement residence within 1 

year after the date it was so applied. 

(i) Payment for civic obligations. 

Payments received for discharge of jury 

duty or other obligatory civic duties. 

(j) Increased inventory value of a 

business. The value of an increase of 

stock inventory of a business. 

(k) Employer contributions. An 

employer’s contributions to health and 

hospitalization plans for either an active 

or retired employee. 

(l) Payments listed in § 5.706. 

(Authority: 38 U.S.C. 102) 

§ 5.305–5.310 [Reserved] 

5. Sections 5.311 through 5.315 and 

their undesignated center heading are 

added to subpart E and §§ 5.316 through 

5.319 are reserved to read as follows: 

Disability Compensation Effective Dates 

Sec. 

5.311 Effective dates—award of disability 

compensation. 

5.312 Effective dates—increased disability 

compensation. 

5.313 Effective dates—discontinuance of a 

total disability rating based on 

individual unemployability. 

5.314 Effective dates—discontinuance of 

additional disability compensation based 

on parental dependency. 

5.315 Effective dates—additional disability 

compensation based on decrease in the 

net worth of a dependent parent. 

5.316–5.319 [Reserved] 

Disability Compensation Effective Dates 

§ 5.311 Effective dates—award of disability 

compensation. 

(a) Claim received within 1 year after 

discharge or release from active military 

service. If VA grants disability 

compensation based on a claim VA 

received within 1 year after the date the 

veteran was discharged or released from 

a continuous period of active military 

service during which the veteran 

incurred the injury or disease, the 

effective date of the award is the later 

of: 

(1) The day after such discharge or 

release from active military service; or 

(2) The date entitlement arose. 

(b) Claim received more than 1 year 

after discharge or release from active 

military service. If VA grants disability 

compensation based on a claim VA 

received more than 1 year after the date 

the veteran was discharged or released 

from a continuous period of active 

military service during which the 

veteran incurred the injury or disease, 

the effective date of the award is the 

date established by § 5.150(a). 

(Authority: 38 U.S.C. 5110(a), (b)(1)) 

§ 5.312 Effective dates—increased 

disability compensation. 

(a) Applicability. This section 

establishes the effective date of an 

award of increased disability 

compensation based on: 

(1) A higher disability rating under 

subpart B of the Schedule for Rating 

Disabilities in part 4 of this chapter. 

(2) A higher disability rating under 

the extra-schedular provision in 

§ 5.280(b). 

(3) A higher disability rating under 

§ 4.16 of this chapter, ‘‘Total disability 

ratings for compensation based on 

unemployability of the individual.’’ 

(4) An award or a higher rate of 

special monthly compensation. 

Note 1 to paragraph (a): This section does 

not establish the effective date of an award 

of secondary service connection under 

§ 5.246 or § 5.247, which is governed by 

§ 5.311. 

Note 2 to paragraph (a): For effective dates 

for awards and discontinuances of temporary 

total disability ratings based upon 


hsrobinson on DSK69SOYB1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 169 / Wednesday, September 1, 2010 / Proposed Rules 53771 

hospitalization for treatment or observation 

of a service-connected disability and for 

convalescence following treatment for a 

service-connected disability, see §§ 4.29 and 

4.30 of this chapter. 

(b) Effective date of increase—(1) 

Claim received within 1 year after 

increase. An award of increased 

disability compensation will be effective 

on the date that the evidence warrants 

a higher disability rating, or an award or 

higher rate of special monthly 

compensation, if VA received a claim 

for increased disability compensation 

within 1 year after that date. 

(2) Claim received more than 1 year 

after increase. An award of increased 

disability compensation will be effective 

on the date established by § 5.150(a) if 

VA received a claim for increased 

disability compensation more than 1 

year after the date that the evidence 

warrants a higher disability rating, or an 

award or higher rate of special monthly 

compensation. 

(Authority: 38 U.S.C. 5110(a) and (b)(2)) 

§ 5.313 Effective dates—discontinuance of 

a total disability rating based on individual 

unemployability. 

(a) Scope. This section applies to 

discontinuance of a veteran’s total 

disability rating based on individual 

unemployability (TDIU) after 

employability is regained or based on 

failure to return an employment 

questionnaire to VA. 

(b) Discontinuance on regaining 

employability. If VA determines that a 

veteran has regained employability, VA 

will discontinue the TDIU rating and 

assign the existing schedular rating. 

Assignment of the existing schedular 

rating and the reduction in disability 

compensation will be effective in 

accordance with § 5.177(f). 

(c) Failure to return employment 

questionnaire. If a veteran fails to return 

an employment questionnaire to VA 

within the time specified in VA Form 

21–4140, VA will discontinue the TDIU 

rating and assign the existing schedular 

rating. Assignment of the existing 

schedular rating and the reduction in 

disability compensation will be effective 

beginning the first day of the month 

after the month VA last paid TDIU 

benefits. 

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

§ 5.314 Effective dates—discontinuance of 

additional disability compensation based 

on parental dependency. 

(a) Scope. This section applies to 

discontinuance of additional disability 

compensation paid to a veteran for a 

dependent parent if that parent is no 

longer dependent. 

(b) Discontinuance based on a change 

in a parent’s economic status. If VA 

determines that a veteran’s parent is no 

longer dependent due to an 

improvement in economic status, the 

additional disability compensation paid 

due to parental dependency will be 

discontinued as follows: 

(1) Increase in income. If dependency 

ends based on an increase in income, 

VA will discontinue paying the 

additional disability compensation on 

the first day of the month after the 

month in which the income increased. 

(2) Increase in net worth. If 

dependency ends based on an increase 

in net worth, VA will discontinue 

paying the additional disability 

compensation on the first day of the 

calendar year after the year in which the 

net worth increased. 

(c) Discontinuance based on a change 

in a parent’s marital status. If VA 

determines that the marriage, 

remarriage, annulment of a marriage, or 

divorce of a dependent parent resulted 

in the end of dependency of that parent, 

VA will discontinue paying the 

additional disability compensation 

effective the first day of the month after 

the date the change in marital status 

occurred. 

(d) Discontinuance based on a 

parent’s death. If a dependent parent 

dies, VA will discontinue paying the 

additional disability compensation on 

the first day of the month after the 

month of death. 

(Authority: 38 U.S.C. 5112(b)(2) and (4)) 

§ 5.315 Effective dates—additional 

disability compensation based on decrease 

in the net worth of a dependent parent. 

(a) Scope. This rule applies under the 

following circumstances: 

(1) VA previously denied a claim or 

discontinued payments of additional 

disability compensation based upon 

parental dependency because of a 

parent’s net worth; 

(2) The denial or discontinuation 

became final; and 

(3) Entitlement to additional disability 

compensation based upon parental 

dependency was subsequently 

established, or reestablished, because of 

a decrease in the parent’s net worth. 

(b) Payment of additional 

compensation. If a parent’s net worth 

decreases so that additional disability 

compensation based on parental 

dependency is warranted, VA will pay 

additional disability compensation as 

follows: 

(1) For claims filed before the actual 

decrease in net worth, effective the first 

day of the month after the month of the 

decrease; or 

(2) For claims filed after the actual 

decrease in net worth, effective the first 

day of the month after the receipt of a 

new claim for additional disability 

compensation. 

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

§§ 5.316–5.319 [Reserved] 

[FR Doc. 2010–21019 Filed 8–31–10; 8:45 am] 

BILLING CODE 8320–01–P 


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