31 March 2009
[Federal Register: March 31, 2009 (Volume 74, Number 60)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
Posttraumatic Stress Disorder
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
SUMMARY: This document affirms an
amendment to the Department of Veterans Affairs (VA) adjudication
regulations regarding service connection for posttraumatic stress
disorder (PTSD) that eliminated 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 proof of service connection in
such claims. By this amendment, we intend to more quickly adjudicate
claims for service connection for PTSD for these veterans.
DATES: The interim final rule became effective on October 29, 2008, and
is applicable to claims pending before VA on the effective date of that
rule, as well as to claims filed after that date.
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,
(This is not a toll-free number.)
SUPPLEMENTARY INFORMATION: On October 29, 2008, at
73 FR 64208,
VA published an interim final rule amending
38 CFR 3.304(f)
to relax the requirement for establishing service connection for PTSD
that was diagnosed in service. We added a new paragraph to provide that,
if the evidence shows that a 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
provided a 30-day comment period that ended November 28, 2008. We
received one comment. The commenter supported the relaxed standards for
providing benefits for veterans who were diagnosed with PTSD while in
service, but objected to requiring a veteran to show a stressor
consistent with the circumstances, conditions, or hardships of the
veteran's service. The commenter felt that the requirement was
especially troublesome in a theater of combat such as Iraq where combat
is experienced by troops with varying military occupational specialties
and who, because of the circumstances of their service, may not be able
to corroborate or establish the circumstances or conditions of their
We make no change
based on this comment. The language to which the commenter objects is
mandated by 38 U.S.C. 1154(a).
requires VA to include in regulations pertaining to service connection
of disabilities provisions requiring VA to consider "the places,
types, and circumstances'' of a veteran's service when deciding a
claim for service connection. Also, the inclusion of that language in
the regulation makes it parallel to
38 U.S.C. 1154(b)
in ensuring that the stressor
claim is plausible in light of what is known of the veteran's service.
VA appreciates the
comment submitted in response to the interim final rule. Based on the
rationale stated in the interim final rule and in this document, we now
affirm as a final rule the amendments made by the interim final rule.
Administrative Procedure Act
This document affirms without any changes amendments made by an interim
final rule that is already in effect. Accordingly, we have concluded
under 5 U.S.C. 553
that there is good cause for dispensing with a delayed effective date
based on the conclusion that such procedure is impracticable,
unnecessary, and contrary to the public interest.
Paperwork Reduction Act
This document contains no provisions constituting a collection of
information under the Paperwork Reduction Act (44
Regulatory Flexibility Act
The Secretary hereby certifies that this 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 final rule would not affect any small entities. Only VA
beneficiaries could be directly affected. Therefore, pursuant to
5 U.S.C. 605(b),
this 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 final rule have been examined, and it has been
determined not to be a significant regulatory action under
Executive Order 12866.
The Unfunded Mandates Reform Act of 1995 requires, at
2 U.S.C. 1532,
that agencies prepare an assessment of anticipated costs and benefits
before issuing any rule that may result in an expenditure by State,
local, and tribal governments, in the aggregate, or by the private
sector, of $100 million or more (adjusted annually for inflation) in any
year. This final rule would have no consequential 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: March 23, 2009.
John R. Gingrich,
Chief of Staff, Department of Veterans Affairs.
Part 3 – ADJUDICATION
Subpart A – Pension, Compensation, and Dependency and Indemnity
The interim final rule amending 38
CFR Part 3 that was published at
73 FR 64208
on October 29, 2008, is adopted as a final rule without change.
[FR Doc. E9-7229 Filed 3-30-09; 8:45 am]
BILLING CODE 8320-01-P