relax the requirements for establishing service connection for PTSD

relax the requirements for establishing service connection for PTSD that
was diagnosed in service.


Published in this morning's Federal Register.

[Federal Register: October 29, 2008 (Volume 73, Number 210)]
[Rules and Regulations]
[Page 64208-64210]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29oc08-12]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AN04

Posttraumatic Stress Disorder

AGENCY: Department of Veterans Affairs.

ACTION: Interim final rule.
----------------------------------------------------------
SUMMARY: The Department of Veterans Affairs (VA) is amending its
adjudication regulations regarding service connection for posttraumatic
stress disorder (PTSD) by eliminating the requirement of evidence
corroborating occurrence of the claimed in-service stressor in claims in
which PTSD is diagnosed in service. This amendment is necessary to
facilitate the proof of service connection in such claims. By this
amendment, we intend to reduce claim-processing time for such claims.

DATES: Effective Date: This interim final rule is effective October 29,
2008. Comments must be received by VA on or before November 28, 2008.

Applicability Date: VA will apply this interim final rule to claims pending
before VA on the effective date of this rule, as well as to claims filed
after that date.

ADDRESSES: Written comments may be submitted through www.Regulations.gov; by
mail or hand-delivery to the Director, Regulations Management (02REG),
Office of the General Counsel, 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-AN04--Posttraumatic Stress Disorder.'' Copies of comments received will
be available for public inspection in the Office of Regulation Policy and
Management, Room 1063B, between the hours of 8 a.m. and 4:30 p.m. Monday
through Friday (except holidays). Please call (202) 461-4902 for an
appointment. (This is not a toll-free number.) In addition, during the
comment period, comments may be viewed online through the Federal Docket
Management System (FDMS) at www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Maya Ferrandino, Regulations Staff (211D),
Compensation and Pension Service, Veterans Benefits Administration,
Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC
20420, (727) 319-5847. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: The Secretary of Veterans Affairs has the
authority to prescribe regulations governing the nature and extent of proof
and evidence required to establish entitlement to benefits. 38 U.S.C.
501(a)(1). Under 38 CFR 3.303(a), one of the ways that service connection of
a disability may be established is by affirmatively showing inception or
aggravation during service of a disease or injury that resulted in that
disability. However, in order to establish service connection for PTSD in
cases in which a veteran did not engage in combat with the enemy or was not
a prisoner of war, current 38 CFR 3.304(f)
requires: (1) Medical evidence diagnosing PTSD; (2) medical evidence
establishing a link between a veteran's current symptoms and an in-service
stressor; and (3) credible supporting evidence that the claimed in-service
stressor occurred.

The longstanding requirement in Sec. 3.304(f) of credible supporting
evidence that the claimed in-service stressor occurred is based on the
American Psychiatric Association's Diagnostic and Statistical Manual of
Mental Disorders, Fourth Edition (1994) (DSM-IV), to which a diagnosis of a
mental disorder must conform. 38 CFR 3.304(f) and 4.125(a).
According to DSM-IV at 427, the first diagnostic criterion for PTSD is:

The person has been exposed to a traumatic event in which both of the
following were present:

(1) The person experienced, witnessed, or was confronted with an event
or events that involved actual or threatened death or serious injury, or a
threat to the physical integrity of self or others

(2) The person's response involved intense fear, helplessness, or
horror.

The symptoms of PTSD ``usually begin within the first 3 months after the
trauma, although there may be a delay of months, or even years, before
symptoms appear.'' DSM-IV at 426. Given the delay that may occur between the
occurrence of a stressor and the onset of PTSD and the subjective nature of
a person's response to an event, VA concluded, when it first promulgated
Sec. 3.304(f) in 1993, that it is reasonable to require corroboration of
the in-service stressor, a conclusion with which the United States Court of
Appeals for the Federal Circuit agreed.
58 FR 29109 (1993); Nat'l Org. of Veterans' Advocates, Inc. v. Sec'y of
Veterans Affairs, 330 F.3d 1345, 1351-52 (Fed. Cir. 2003). Also, according
to DSM-IV at 424-25, a ``person commonly makes deliberate efforts to avoid
thoughts, feelings, or conversations about the traumatic event * * * and to
avoid activities, situations, or people who arouse recollections of it. * *
* This avoidance of reminders may include amnesia for an important aspect of
the traumatic event.'' We believed that it was reasonable for Sec. 3.304(f)
to require corroboration of the occurrence of the stressor in order to
substantiate aspects of the event that a veteran may not remember.

However, VA has found, based on claims submitted since September 11, 2001,
that service members are increasingly being diagnosed with PTSD while still
in service, rather than after discharge from service. The increased
incidence of in-service diagnoses of PTSD is attributable to advances in
medicine and increased monitoring of service members' mental health by the
service departments. Given the ability to more quickly diagnose PTSD and the
proximity between an in-service diagnosis of PTSD and the claimed occurrence
of the stressor, VA no longer believes it is necessary to require evidence
corroborating occurrence of the stressor in claims based on an in-service
diagnosis.

We are therefore amending Sec. 3.304(f) to relax the requirements for
establishing service connection for PTSD that was diagnosed in service.
We are adding a new paragraph, which provides that, if the evidence shows
that the veteran's PTSD was diagnosed 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
service, the veteran's lay testimony alone may establish the occurrence of
the claimed in-service stressor. We believe that this change will contribute
to faster processing of PTSD claims by eliminating the need for VA to
develop evidence of occurrence of the in-service stressor in claims in which
the veteran's PTSD was diagnosed during service.

For claims based on a postservice diagnosis of PTSD, we will continue to
require credible supporting evidence of the occurrence of the claimed
in-service stressor. The U.S. Court of Appeals for Veterans Claims
(CAVC) has held that VA is ``not bound to accept [the claimant's]
uncorroborated account'' of a stressor or a ``social worker's and
psychiatrist's unsubstantiated * * * opinions that the alleged PTSD had its
origins in appellant's [military service].'' Wood v. Derwinski, 1 Vet. App.
190, 192 (1991). Further, the CAVC stated that VA ``is not required to
accept doctors' opinions that are based upon the appellant's recitation of
medical history.'' Godfrey v. Brown, 8 Vet. App. 113, 121 (1995). A
post-service diagnosis of PTSD is often based on a claimant's personal
account of a stressful event that may have occurred many years before the
doctor's examination. In order to ensure a competent and credible diagnosis
of PTSD, there must be corroboration of the claimed in-service stressor.
This standard is the same as that generally applied by VA when a
post-service diagnosis of a disability is allegedly due to an injury
incurred or disease contracted during service.

Also, we are eliminating the hyphen in the term ``post-traumatic stress
disorder'' in Sec. 3.304(f) to reflect current medical terminology.

Administrative Procedure Act
In accordance with 5 U.S.C. 553(b)(3)(B), the Secretary of Veterans Affairs
finds that there is good cause to dispense with the opportunity for prior
comment with respect to this rule, which eliminates the need for evidence to
corroborate the occurrence of a stressor in claims in which a veteran was
diagnosed with PTSD during service. The Secretary finds that it is
impracticable, unnecessary, and contrary to the public interest to delay
this regulation, which will speed up processing of PTSD claims, for the
purpose of soliciting prior public comment because the regulation relieves
an unnecessary proof requirement for certain veterans disabled by
service-connected PTSD who need VA benefits as soon as possible to
compensate for loss in wage-earning capacity. For the foregoing reasons, the
Secretary of Veterans Affairs is issuing this rule as an interim final rule.
The Secretary of Veterans Affairs will consider and address comments that
are received within 30 days of the date this interim final rule is published
in the Federal Register.

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

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

Executive Order 12866
Executive Order 12866 directs agencies to assess all costs and benefits of
available regulatory alternatives and, when regulation is necessary, to
select regulatory approaches that maximize net benefits (including potential
economic, environmental, public health and safety, and other advantages;
distributive impacts; and equity). The Executive Order classifies a
``significant regulatory action,'' requiring review by the Office of
Management and Budget (OMB), as any regulatory action that is likely to
result in a rule that may: (1) Have an annual effect on the economy of $100
million or more or adversely affect in a material way the economy, a sector
of the economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or communities; (2)
create a serious inconsistency or otherwise interfere with an action taken
or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients thereof;
or (4) raise novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the Executive Order.

The economic, interagency, budgetary, legal, and policy implications of this
interim final rule have been examined, and it has been determined not to be
a significant regulatory action under the Executive Order.

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

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

List of Subjects in 38 CFR Part 3
Administrative practice and procedure, Claims, Disability benefits, Health
care, Pensions, Radioactive materials, Veterans, Vietnam.

Approved: October 7, 2008.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.

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

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

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

2. Amend Sec. 3.304(f) by:

a. Revising the paragraph heading and introductory text.

b. Redesignating paragraphs (1), (2), and (3) as paragraphs (2), (3), and
(4), respectively, and by adding new paragraph (1).

c. Removing ``post-traumatic'' each place it appears and add, in its place,
``posttraumatic''.

The revisions and addition read as follows:

Sec. 3.304 Direct service connection; wartime and peacetime.

* * * * *
(f) Posttraumatic stress disorder. Service connection for posttraumatic
stress disorder requires medical evidence diagnosing the condition in
accordance with Sec. 4.125(a) of this chapter; a link, established by
medical evidence, between current symptoms and an in-service stressor; and
credible supporting evidence that the claimed in-service stressor occurred.
The following provisions apply to claims for service connection of
posttraumatic stress disorder diagnosed during service or based on specified
in-service stressors:

(1) If the evidence establishes a diagnosis of posttraumatic stress
disorder 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 service, the veteran's lay
testimony alone may establish the occurrence of the claimed in-service
stressor.
* * * * *
[FR Doc. E8-25735 Filed 10-28-08; 8:45 am] BILLING CODE 8320-01-P

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