Post-Traumatic Stress
Disorder Claims Based on Personal Assault
[Federal Register: October 16, 2000 (Volume 65, Number 200)]
[Proposed Rules]
[Page 61132-61133]
>From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16oc00-36]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AK00
Post-Traumatic Stress Disorder Claims Based on Personal Assault
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: This document proposes to amend Department of Veterans Affairs
(VA) adjudication regulations concerning the proof necessary to
establish occurrence of a stressor in claims for service connection of
post-traumatic stress disorder (PTSD) resulting from personal assault.
This amendment would provide that evidence other than the veteran's
service records may be sufficient to establish the occurrence of the
stressor. The proposed regulation also would require that VA not deny
such claims without first advising claimants that evidence from sources
other than a veteran's service records may prove the stressor occurred.
This would make claimants aware of the types of evidence which might
support their claims, and would give them an opportunity to obtain and
submit such evidence. It would also ensure that VA will not deny claims
simply because the claimants did not realize that certain types of
evidence may be relevant and therefore failed to submit such evidence
to VA.
DATES: Comments must be received on or before December 15, 2000.
ADDRESSES: Mail or hand-deliver written comments to: Director, Office
of Regulations Management (02D), Department of Veterans Affairs, 810
Vermont Ave., NW, Room 1154, Washington, DC 20420; or fax comments to
(202) 273-9289; or e-mail comments to ``<A
OGCRegulations@mail.va.gov</A>''.
Comments should indicate that they are submitted in response to ``RIN
2900-AK00.'' All comments received will be available for public
inspection in the Office of Regulations Management, Room 1158, between
the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday (except
holidays).
FOR FURTHER INFORMATION CONTACT: Bill Russo, Regulations Staff,
Compensation and Pension Service, Veterans Benefits Administration,
Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC
20420; telephone (202) 273-7210.
SUPPLEMENTARY INFORMATION: Section 3.304(f) of 38 CFR states that
service connection for PTSD requires medical evidence diagnosing the
condition; a link, established by medical evidence, between current
symptoms and an in-service stressor; and credible supporting evidence
that the claimed in-service stressor occurred.
A claim for PTSD may be based upon a personal assault,
including
sexual assault. Many incidents of in-service personal assault are not
officially reported, and veterans may find it difficult to produce
evidence to prove the occurrence of this type of stressor. This
proposed amendment addresses this difficulty by specifying that
evidence from sources other than the veteran's service records may
constitute credible supporting evidence of the in-service stressor,
where the alleged stressor is a personal assault.
VA's Adjudication Procedure Manual, M21-1, discusses the
types of
evidence which may be credible supporting evidence that the stressor
occurred for PTSD claims involving an in-service personal assault. M21-
1, Part III, par. 5.14c. and Part VI, par. 11.38. In Patton v. West, 12
Vet. App. 272, 283 (1999), the U.S. Court of Appeals for Veterans
Claims discussed paragraph 5.14c. of M21-1, Part III, referring to it
as a ``regulatory provision [ ].'' We are proposing to amend VA's
adjudication regulations at Sec. 3.304(f) to specify the types of
evidence, other than a veteran's service records, which may establish
the occurrence of a personal assault during service.
This proposed amendment would recognize that in PTSD claims
based
on in-service assault, evidence from sources other than a veteran's
service records may constitute credible supporting evidence of the
stressor. Examples of such evidence include, but are not limited to:
Records from law enforcement authorities, rape crisis centers, mental
health counseling centers, hospitals or physicians; and statements from
family members, roommates, fellow service members or clergy.
Evidence from these sources might include, for example,
evidence of
behavior changes following the personal assault. Examples of behavior
changes that might result from a personal assault include, but are not
limited to: A request by the veteran for a transfer to another military
duty assignment; a change in work performance; substance abuse;
episodes of depression, panic attacks or anxiety where there is no
identifiable reason for the episodes; or unexplained economic or social
behavior changes.
The proposed regulation would also provide that VA will not
deny a
PTSD claim which is based on personal assault without first advising
the claimant that evidence from alternative sources or evidence of
behavior changes may constitute credible supporting evidence of the
stressor. This would ensure that claimants are aware of the types of
evidence which might support their claims and would give them an
opportunity to obtain and submit such evidence. It would also ensure
that VA will not deny claims simply because the claimants did not
realize that certain types of evidence may be relevant and therefore
failed to submit such evidence to VA.
The proposed amendment also would state that VA may submit
any
evidence that it receives to an appropriate medical professional for an
opinion as to whether it indicates that a personal assault occurred.
Such an opinion may be necessary when evidence requires medical
interpretation and analysis based on the portion of the American
Psychiatric Association's Diagnostic and Statistical Manual of Mental
Disorders, Fourth Edition, which concerns PTSD.
This proposed amendment would also divide current Sec.
3.304(f),
regarding PTSD claims, into two new sub-paragraphs, one involving PTSD
claims by combat veterans and the other concerning PTSD claims by
former prisoners-of-war. No substantive change would be made by this
aspect of the proposal.
OMB Review
This proposed rule has been reviewed by OMB under Executive
Order
12866.
Regulatory Flexibility Act
The Secretary hereby certifies that this regulatory
amendment will
not have a significant economic impact on a substantial number of small
entities as they are defined in the Regulatory Flexibility Act (RFA), 5
U.S.C. 601-612. The reason for this certification is that these
amendments would not directly affect any small entities. Only VA
beneficiaries could be directly affected. Therefore, pursuant to 5
U.S.C. 605(b), these amendments are exempt from the initial and final
regulatory flexibility analysis requirements of sections 603 and 604.
The Catalog of Federal Domestic Assistance program numbers
are
64.100,
[[Page 61133]]
64.101, 64.104, 64.105, 64.106, 64.109, and 64.110.
List of Subjects in 38 CFR Part 3
Administrative practice and procedure, Claims, Disability
benefits,
Health care, Pensions, Veterans, Vietnam.
Approved: July 17, 2000.
Togo D. West, Jr.,
Secretary of Veterans Affairs.
For the reasons set forth in the preamble, 38 CFR part 3 is
proposed to be amended as follows:
PART 3--ADJUDICATION
Subpart A--Pension, Compensation, and Dependency and Indemnity
Compensation
1. The authority citation for part 3, subpart A continues
to read
as follows:
Authority: 38 U.S.C. 501(a), unless otherwise noted.
2. In Sec. 3.304, paragraph (f) is revised to read as
follows:
Sec. 3.304 Direct service connection; wartime and peacetime.
* * * * *
(f) Post-traumatic stress disorder. Service connection for
post-
traumatic 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.
(1) If the evidence establishes that the veteran engaged in
combat
with the enemy and the claimed stressor is related to that combat, in
the absence of clear and convincing evidence to the contrary, and
provided that the claimed stressor is consistent with the
circumstances, conditions, or hardships of the veteran's service, the
veteran's lay testimony alone may establish the occurrence of the
claimed in-service stressor.
(2) If the evidence establishes that the veteran was a
prisoner-of-
war under the provisions of Sec. 3.1(y) of this part and the claimed
stressor is related to that prisoner-of-war experience, in the absence
of clear and convincing evidence to the contrary, and provided that the
claimed stressor is consistent with the circumstances, conditions, or
hardships of the veteran's service, the veteran's lay testimony alone
may establish the occurrence of the claimed in-service stressor.
(3) If a post-traumatic stress disorder claim is based on
in-
service personal assault, evidence from sources other than the
veteran's service records may constitute credible supporting evidence
of the stressor. Examples of such evidence include, but are not limited
to: Records from law enforcement authorities, rape crisis centers,
mental health counseling centers, hospitals or physicians; and
statements from family members, roommates, fellow service members or
clergy. Evidence of behavior changes following the claimed assault is
one type of relevant evidence which may be found in these sources.
Examples of behavior changes that may constitute credible supporting
evidence of the stressor include, but are not limited to: A request for
a transfer to another military duty assignment; deterioration in work
performance; substance abuse; episodes of depression, panic attacks, or
anxiety without an identifiable cause; or unexplained economic or
social behavior changes. VA will not deny a post-traumatic stress
disorder claim which is based on in-service personal assault without
first advising the claimant that evidence from sources other than the
veteran's service records or evidence of behavior changes may
constitute credible supporting evidence of the stressor and allowing
him or her the opportunity to furnish this type of evidence or advise
VA of potential sources of such evidence. VA may submit any evidence
that it receives to an appropriate medical professional for an opinion
as to whether it indicates that a personal assault occurred.
(Authority: 38 U.S.C. 501(a), 1154(b))
[FR Doc. 00-26450 Filed 10-13-00; 8:45 am]
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