Proposed Rule: Compensation, Pension, Burial, and Related Benefits: General Provisions Reorganization and Revision

Tuesday,
May 22, 2007
Part II
Department of
Veterans Affairs
38 CFR Part 5
General Evidence Requirements, Effective
Dates, Revision of Decisions, and
Protection of Existing Ratings; Proposed
Rule
jlentini on PROD1PC65 with PROPOSALS2
VerDate Aug<31>2005 19:22 May 21, 2007 Jkt 211001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\22MYP2.SGM 22MYP2
28770 Federal Register / Vol. 72, No. 98 / Tuesday, May 22, 2007 / Proposed Rules
DEPARTMENT OF VETERANS provide centralized management and 5.153 Effective date of awards based on
AFFAIRS coordination of VA’s rulemaking receipt of evidence prior to end of appeal
process. One of the major functions of period.
38 CFR Part 5 General Rules on Revision of Decisions
this office is to oversee a Regulation 5.160 Binding effect of VA decisions.
RIN 2900–AM01 Rewrite Project (the Project) to improve 5.161 Review of benefit claims decisions.
the clarity and consistency of existing 5.162 Revision of decisions based on
General Evidence Requirements, VA regulations. The Project responds to clear and unmistakable error (CUE).
Effective Dates, Revision of Decisions, a recommendation made in the October 5.163 Revision of decisions based on
and Protection of Existing Ratings 2001 ‘‘VA Claims Processing Task difference of opinion.
Force: Report to the Secretary of 5.164 Effective dates for revision of
AGENCY: Department of Veterans Affairs. decisions based on difference of opinion.
Veterans Affairs.’’ The Task Force
ACTION: Proposed rule. 5.165 Effective dates for reduction or
recommended that the compensation discontinuance of awards based on error.
and pension regulations be rewritten 5.166 New and material evidence based
SUMMARY: The Department of Veterans
and reorganized in order to improve on service department records.
Affairs (VA) proposes to reorganize and
VA’s claims adjudication process. General Rules on Protection or Reduction
rewrite in plain language general
Therefore, the Project began its efforts of Existing Ratings
provisions applicable to its 5.170 Calculation of 5-year, 10-year, and
by reviewing, reorganizing, and
compensation and pension regulations, 20-year protection periods.
redrafting the content of the regulations
including general evidence 5.171 Protection of 5-year stabilized
in 38 CFR part 3 governing the
requirements, general effective dates for ratings.
compensation and pension program of 5.172 Protection of continuous 20-year
new awards, revision of decisions, and
the Veterans Benefits Administration. ratings.
protection of existing ratings. These
These regulations are among the most 5.173 Protection against reduction of
revisions are proposed as part of VA’s
difficult VA regulations for readers to disability ratings when revisions are
rewrite and reorganization of all of its
understand and apply. made to the Schedule for Rating
compensation and pension rules in a Disabilities.
Once rewritten, the proposed
logical, claimant-focused, and user- 5.174 Protection of entitlement to benefits
regulations will be published in several
friendly format. The intended effect of established before 1959.
portions for public review and
the proposed revisions is to assist 5.175 Protection or severance of service
comment. This is one such portion. It
claimants and VA personnel in locating connection.
includes proposed rules regarding 5.176 Due process procedures for
and understanding these general
general evidence requirements, general severing service connection or reducing
provisions.
effective dates for awards, revision of or discontinuing compensation benefits.
DATES: Comments must be received by decisions, and protection of VA ratings. 5.177 Effective dates for severing service
VA on or before July 23, 2007. After review and consideration of public connection or discontinuing or reducing
ADDRESSES: Written comments may be comments, final versions of these benefit payments.
submitted through proposed regulations will ultimately be Endnote Regarding Amendatory Language
Paperwork Reduction Act
www.Regulations.gov; by mail or hand- published in a new part 5 in 38 CFR.
Regulatory Flexibility Act
delivery to the Director, Regulations Outline Executive Order 12866
Management (00REG), Department of Unfunded Mandates
Overview of New Part 5 Organization
Veterans Affairs, 810 Vermont Ave., Catalog of Federal Domestic Assistance
Overview of This Notice of Proposed
NW., Room 1068, Washington, DC Rulemaking Numbers and Titles
20420; or by fax to (202) 273–9026. Table Comparing Current Part 3 Rules with List of Subjects in 38 CFR Part 5
Comments should indicate that they are Proposed Part 5 Rules Overview of New Part 5 Organization
submitted in response to ‘‘RIN 2900– Content of Proposed Regulations We plan to organize the part 5
AM01—General Evidence General Evidence Requirements
regulations so that most of the
Requirements, Effective Dates, Revision 5.130 Submission of statements,
evidence, or information affecting provisions governing a specific benefit
of Decisions, and Protection of Existing are located in the same subpart, with
Ratings.’’ Copies of comments received entitlement to benefits.
5.13 Applications, claims, and exchange general provisions pertaining to all
will be available for public inspection in compensation and pension benefits also
of evidence with Social Security
the Office of Regulation Policy and Administration (SSA)—death benefits. grouped together. We believe this
Management, Room 1063B, between the 5.132 Claims, statements, evidence, or organization will enable claimants,
hours of 8 a.m. and 4:30 p.m. Monday information filed abroad; authentication beneficiaries, and their representatives,
through Friday (except holidays). Please of documents from foreign countries. as well as VA personnel, to find
call (202) 273–9515 for an appointment. 5.133 Information VA may request from
information relating to a specific benefit
(This is not a toll-free number.) In financial institutions.
5.134 Will VA accept a signature by mark more quickly than the organization
addition, during the comment period, provided in current part 3.
comments may be viewed online or thumbprint?
5.135 Statements certified or under oath The first major subdivision would be
through the Federal Docket Management ‘‘Subpart A—General Provisions.’’ It
or affirmation.
System (FDMS). Evidence Requirements for Former would include information regarding
FOR FURTHER INFORMATION CONTACT: Prisoners of War (POWs) the scope of the regulations in new part
William F. Russo, Director, Regulations 5.140 Determining former prisoner of war 5, general definitions, and general
Management (00REG), Department of status. policy provisions for this part. This
Veterans Affairs, 810 Vermont Avenue, 5.141 Medical evidence for former subpart was published as proposed on
NW., Washington, DC 20420, (202) 273– prisoners’ of war compensation claims.

General Effective Dates for Awards
March 31, 2006. See 71 FR 16464.
9515. (This is not a toll-free number.) ‘‘Subpart B—Service Requirements for
5.150 General effective dates for awards
SUPPLEMENTARY INFORMATION: The or increased benefits. Veterans’’ would include information
Secretary of Veterans Affairs has 5.151 Date of receipt. regarding a veteran’s military service,
established an Office of Regulation 5.152 Effective dates based on change of including the minimum service
Policy and Management (ORPM) to law or VA issue. requirement, types of service, periods of
Federal Register / Vol. 72, No. 98 / Tuesday, May 22, 2007 / Proposed Rules 28771
war, and service evidence requirements. ‘‘Subpart G—Dependency and have been published in this or earlier
This subpart was published as proposed Indemnity Compensation, Death NPRMs for the Project, we cite the
on January 30, 2004. See 69 FR 4820. Compensation, Accrued Benefits, and proposed part 5 section. We also
‘‘Subpart C—Adjudicative Process, Special Rules Applicable Upon Death of include, in the relevant portion of the
General’’ would inform readers about a Beneficiary,’’ would contain Supplementary Information, the Federal
types of claims and filing procedures, regulations governing claims for Register page where a proposed part 5
VA’s duties, rights and responsibilities dependency and indemnity section published in an earlier NPRM
of claimants and beneficiaries, general compensation (DIC); death may be found. However, where a
evidence requirements, and effective compensation; accrued benefits; benefits regulation proposed in this NPRM
dates for new awards, as well as awarded, but unpaid at death; and would cross-reference a proposed part 5
revision of decisions and protection of various special rules that apply to the regulation that has not yet been
VA ratings. This subpart will be disposition of VA benefits, or proceeds published, we cite to the current part 3
published as three separate Notices of of VA benefits, when a beneficiary dies. regulation that deals with the same
Proposed Rulemaking (NPRMs) due to This subpart would also include related subject matter. The current part 3
its size. The first, concerning the duties definitions, effective-date rules, and section we cite may differ from its
of VA and the rights and responsibilities rate-of-payment rules. This subpart was eventual part 5 counterpart in some
of claimants and beneficiaries, was published as two separate NPRMs due respects, but we believe this method
published as proposed on May 10, 2005. to its size. The portion concerning will assist readers in understanding
See 70 FR 24680. The portion of this accrued benefits, death compensation, these proposed regulations where no
subpart covering general evidence special rules applicable upon the death part 5 counterpart has yet been
requirements, effective dates for awards, of a beneficiary, and several effective- published. If there is no part 3
revision of decisions, and protection of date rules, was published as proposed counterpart to a proposed part 5
VA ratings is the subject of this on October 1, 2004. See 69 FR 59072. regulation that has not yet been
document. The portion concerning DIC benefits published, we have inserted
‘‘Subpart D—Dependents and and general provisions relating to proof ‘‘[regulation that will be published in a
Survivors’’ would inform readers how of death and service-connected cause of future Notice of Proposed Rulemaking]’’
VA determines whether an individual is death was published as proposed on where the part 5 regulation citation
a dependent or a survivor of a veteran. October 21, 2005. See 70 FR 61326. would be placed.
It would also provide the evidence ‘‘Subpart H—Special and Ancillary Because of its large size, proposed
requirements for these determinations. Benefits for Veterans, Dependents, and part 5 will be published in a number of
This subpart was published as proposed Survivors’’ would pertain to special and NPRMs, such as this one. VA will not
on September 20, 2006. See 71 FR ancillary benefits available, including adopt any portion of part 5 as final until
55052. benefits for children with various birth all of the NPRMs have been published
defects. This subpart was published as for public comment.
‘‘Subpart E—Claims for Service
proposed on March 9, 2007. See 72 FR
Connection and Disability In connection with this rulemaking,
10860.
Compensation’’ would define service- ‘‘Subpart I—Benefits for Certain VA will accept comments relating to a
connected compensation, including Filipino Veterans and Survivors’’ would prior rulemaking issued as a part of the
direct and secondary service pertain to the various benefits available Project, if the matter being commented
connection. This subpart would inform to Filipino veterans and their survivors. on relates to both rulemakings.
readers how VA determines entitlement This subpart was published as proposed Overview of This Notice of Proposed
to service connection. The subpart on June 30, 2006. See 71 FR 37790. Rulemaking
would also contain those provisions ‘‘Subpart J—Burial Benefits’’ would
governing presumptions related to pertain to burial allowances. This NPRM pertains to those
service connection, rating principles, ‘‘Subpart K—Matters Affecting the regulations governing the following for
and effective dates, as well as several Receipt of Benefits’’ would contain purposes of compensation and pension
special ratings. This subpart will be provisions regarding bars to benefits, benefits: (1) General evidence
published as three separate NPRMs due forfeiture of benefits, and renouncement requirements; (2) general effective dates
to its size. The first, concerning of benefits. This subpart was published for awards; (3) revision of decisions; and
presumptions related to service as proposed on May 31, 2006. See 71 FR (4) protection of existing ratings. These
connection, was published as proposed 31056. regulations would be contained in
on July 27, 2004. See 69 FR 44614. ‘‘Subpart L—Payments and proposed Subpart C of new 38 CFR part
‘‘Subpart F—Nonservice-Connected Adjustments to Payments’’ would 5. Although these regulations have been
Disability Pensions and Death include general rate-setting rules, substantially restructured and rewritten
Pensions’’ would include information several adjustment and resumption for greater clarity and ease of use, most
regarding the three types of nonservice- regulations, and election-of-benefit of the basic concepts contained in these
connected pension: Improved pension, rules. Because of its size, subpart L will proposed regulations are the same as in
Old-Law pension, and Section 306 be published in two separate NPRMs. their existing counterparts in 38 CFR
pension. This subpart would also The final subpart, ‘‘Subpart M— part 3. However, a few substantive
include those provisions that state how Apportionments to Dependents and differences are proposed, along with
to establish entitlement to Improved Payments to Fiduciaries and some rules that do not have
pension, and the effective dates Incarcerated Beneficiaries,’’ would counterparts in 38 CFR part 3.
governing each pension. This subpart include regulations governing
Table Comparing Current Part 3 Rules

would be published in two separate apportionments, benefits for With Proposed Part 5 Rules
NPRMs due to its size. The portion incarcerated beneficiaries, and
concerning Old-Law pension, Section guardianship. The following table shows the
306 pension, and elections of Improved Some of the regulations in this NPRM relationship between the current
pension was published as proposed on cross-reference other compensation and regulations in part 3 and those proposed
December 27, 2004. See 69 FR 77578. pension regulations. If those regulations regulations contained in this NPRM:
Based in whole or in Based in whole or in regulations that will not be carried

Proposed part 5 Proposed part 5
section or part on 38 CFR part 3 section or part on 38 CFR part 3 forward to part 5. Such provisions are
section or paragraph section or paragraph discussed specifically under the
paragraph paragraph
(or ‘‘New’’) (or ‘‘New’’) appropriate part 5 heading in this
5.130(a) ..................... 3.217(a) and Note to 5.170(e) ..................... New. preamble. Readers are invited to
3.217(a). 5.171(a) ..................... 3.344(a). comment on the proposed part 5
5.130(b) ..................... 3.217(b). 5.171(b) ..................... 3.344(c). provisions and also on our proposals to
5.130(c)(1)(i) ............. 3.217(b)(1)(i). 5.171(c)(1) ................. 3.344(c). omit those part 3 provisions from part
5.130(c)(1)(ii) ............. 3.217(b)(1)(ii). 5.171(c)(2) ................. 3.344(a). 5.
5.130(c)(1)(iii) ............ 3.217(b)(1)(iii). 5.171(d) ..................... 3.344(a).
5.130(c)(2) ................. 3.217(b)(2). 5.171(e) ..................... 3.344(b). Content of Proposed Regulations
5.130(d) ..................... New. 5.172(a) ..................... 3.951(b) [first sen- General Evidence Requirements
5.131(a) ..................... 3.153. tence].
5.131(b) ..................... 3.201(a). 5.172(b) ..................... 3.951(b) [second sen- Section 5.130 Submission of
5.131(c) ..................... 3.201(b). tence]. Statements, Evidence, or Information
5.132(a) ..................... 3.108. 5.172(c) ..................... New Affecting Entitlement to Benefits
5.132(b) ..................... 3.202(a). 5.173(a) ..................... 3.951(a) and 3.952.
5.132(c)(1) ................. 3.202(b)(1). 5.173(b)(1) ................ 3.952. Proposed § 5.130 is derived from
5.132(c)(2) ................. 3.202(b)(2). 5.173(b)(2) ................ 3.952. current § 3.217, VA’s regulation
5.132(c)(3) ................. 3.202(b)(3). 5.173(b)(3) ................ 3.952. governing the submission of statements
5.132(c)(4) ................. 3.202(b)(6). 5.174(a) ..................... 3.953(a). or information affecting entitlement to
5.132(c)(5) ................. 3.202(b)(4). 5.174(b) ..................... 3.953(c). benefits. We propose explicitly to make
5.132(d)(1) ................ 3.202(a) [first sen- 5.175(a)(1) ................ 3.957 [first sentence]. this regulation applicable to ‘‘evidence’’
tence] and 5.175(a)(2) ................ 3.957 [last sentence].
as well as statements and information.
3.202(a)(2). 5.175(b)(1) ................ 3.105(d) [first two
sentences]. The current regulation does not
5.132(d)(2) ................ 3.202(a)(1).
5.175(b)(2) ................ 3.105(d) [third and explicitly apply to the submission of
5.132(e) ..................... 3.202(c).
5.133(a) ..................... 3.115(a). fourth sentences]. written evidence; however, in practice
5.133(b) ..................... New. 5.176(a) and (b) ........ 3.105(d) [fifth and the principles therein do apply to the
5.133(b)(1) ................ New. sixth sentences] submission of written evidence, and
5.133(b)(2) ................ New. and 3.105(e) [first there is no reason not to make the part
5.133(c)(1) ................. 3.115(b). two sentences]. 5 regulation explicit in this regard.
5.133(c)(2) ................. 3.115(b). 5.176(c) ..................... 3.105(d) [last two Proposed paragraph (a) addresses the
5.134 ......................... 3.2130. sentences] and methods by which beneficiaries may
5.135 ......................... 3.200. 3.105(e) [last two
sentences].
submit statements, evidence, or
5.140(a) ..................... 3.1(y)(1), (y)(3). information affecting their entitlement
5.140(b) ..................... 3.1(y)(2)(i). 5.177(a) ..................... 3.105 [intro—last sen-
tence]. to benefits. Acknowledging that certain
5.140(c) ..................... 3.1(y)(2)(ii).
5.140(d) ..................... 3.1(y)(4). 5.177(b) ..................... 3.105 [intro—second VA regulations require that particular
5.141(a) ..................... 3.304(c). sentence]. types of evidence or information be
5.141(b) ..................... New. 5.177(c) ..................... 3.105 [intro—first submitted in writing—e.g., Marriage
5.141(c) ..................... 3.304(e). sentence] and (§ 5.192), Divorce (§ 5.194), and Birth
5.141(d) ..................... 3.304(e) [first sen- 3.500(b). (§ 5.229)—we propose to state that it is
tence]. 5.177(d) ..................... 3.105(d).
5.177(e) ..................... 3.105(c).
VA’s policy to accept electronic
5.141(e) ..................... 3.304(e) [last two submissions unless another regulation,
sentences]. 5.177(f) ...................... 3.105(e).
5.177(g) ..................... 3.105(f). form, or directive expressly requires a
5.141(f) ...................... 3.326(b). different method of submission.
5.177(h) ..................... 3.105(g).
5.150(a) ..................... 3.400 [intro] and (a),
3.400(h)(1), and
5.177(i) ...................... 3.105(h). Proposed paragraph (a) would state that
3.400(q)(1)(ii). this policy does not apply to the filing
5.150(b) ..................... New. Readers who use this table to compare of a claim, Notice of Disagreement,
5.151 ......................... 3.1(r). existing regulatory provisions with the Substantive Appeal, or any other
5.152 ......................... 3.114. proposed provisions, and who observe a submissions or filing requirements
5.153 ......................... 3.156(b) and substantive difference between them, covered in parts 19 and 20 of this title.
3.400(q)(1)(i). should consult the text that appears We propose not to include the
5.160(a) ..................... 3.104(a). later in this document for an introductory phrase, ‘‘For purposes of
5.160(b) ..................... 3.104(b). explanation of significant changes in this part, unless specifically provided
5.161 ......................... 3.2600. each regulation. Not every paragraph of otherwise,’’ which is used in paragraph
5.162(a) ..................... 3.105(a) first two sen- every current part 3 section regarding
tences]. (b) of current § 3.217. Because proposed
5.162(b) ..................... 3.105 [intro—first
the subject matter of this rulemaking is § 5.0 specifically states that ‘‘[e]xcept as
sentence] and accounted for in the table. In some otherwise provided, this part applies
3.105(a) [third and instances, other portions of the part 3 only to benefits governed by this part,’’
fourth sentences]. sections that are contained in these it is no longer necessary to state that any
5.163 ......................... 3.105(b). proposed regulations will appear in rule in part 5 applies only for purposes
5.164 ......................... 3.400(h)(1). subparts of part 5 that are being of this part. 71 FR 16464, 16473.
5.165(a) ..................... 3.500(b). published separately for public Therefore, in paragraph (b) of § 5.130,
5.165(b) ..................... 3.500(b)(1). comment. For example, a reader might we propose to state, ‘‘Except as
5.165(c) ..................... 3.500(b)(2). find a reference to paragraph (a) of a

5.166 ......................... 3.156(c). otherwise provided.’’ By so doing, we
5.170(a) ..................... 3.344, 3.951, and
part 3 section in the table, but no achieve our goal of greater readability
3.957. reference to paragraph (b) of that section without loss of clarity or substance.
5.170(b) ..................... 3.951(b) and 3.957. because paragraph (b) will be addressed In § 5.130(c)(1), we propose to include
5.170(c) ..................... New. in a separate NPRM. The table also does a reference to the beneficiary’s
5.170(d) ..................... New. not include provisions from part 3 authorized representative that is not
contained in current § 3.217(b)(1). part 5, for the sake of consistency, when does not incorporate the first sentence
Including the representative merely referring to a formal or informal of current § 3.201(a), as it is unnecessary
clarifies the established legal principle communication in writing requesting a and redundant of proposed § 5.81,
that the actions of an authorized determination of entitlement or which explicitly states that ‘‘VA will
representative are considered to be evidencing a believe in entitlement to a include in the record of proceedings any
actions by the client beneficiary. benefit, as the term ‘‘claim’’ is defined information, evidence (whether
Current § 3.217(b)(1)(iii) states that, in part 3. (A future NPRM will fully documentary, testimonial, or in other
when a beneficiary or fiduciary orally address the definition of ‘‘claim’’ for the form), and any argument that a claimant
provides information or a statement that purposes of part 5.) Thus, the term offers in support of a claim.’’ 70 FR
VA may use to adjust benefits, VA must ‘‘claim’’ would have the same meaning 24680, 24686. In addition, VA’s ‘‘duty to
inform him or her that ‘‘the information in Part 5 as it currently does in Part 3; assist’’ regulation, 38 CFR 3.159(c)(2),
or statement will be used for the no substantive change is intended. We requires VA to obtain relevant records
purpose of calculating benefit propose to use the term ‘‘application’’ from a federal department or agency,
amounts.’’ In proposed § 5.130(c)(1)(iii), when referring to a certain form that a including records in custody of SSA.
we use the word ‘‘may’’ instead of claimant must file to apply for benefits. Moreover, SSA is required, pursuant to
‘‘will.’’ This wording is more accurate This definition will be contained in 38 U.S.C. 5105(b), to forward to VA all
because VA may determine that the § 5.1 General Definitions. information and supporting documents
information or statement needs to be Current § 3.153 implements the that it receives in conjunction with a
verified through other means. It also statutory provision 38 U.S.C. 5105 that joint application for DIC/SSA benefits.
makes this paragraph consistent with governs joint applications for SSA and In light of the foregoing, it is not
the first sentence in proposed paragraph dependency and indemnity necessary to specify in § 5.131(b) that a
(b), which states that, ‘‘VA may take compensation (DIC). The statute is claimant may submit evidence
action* * *’’ Similarly, we also propose applicable only to claims for chapter 13 submitted to SSA, or to permit the
to use the phrase ‘‘may be used’’ in benefits, which means that it applies to claimant to request VA to obtain such
§ 5.130(c)(2)(v) instead of ‘‘would be claims for DIC. Current § 3.153 states evidence. We have also clarified that the
used’’ as stated in current § 3.217(b)(2). that a claim on a joint form is to be rule, embodied in proposed § 5.131(b)
Finally, in proposed paragraph (d) we treated as a claim for ‘‘death benefits.’’ and current § 3.201(a), regarding the
articulate the exceptions to the rule that However, under 38 U.S.C. 5101(b)(1), a deemed date of receipt for evidence
VA cannot act on an oral statement claim for DIC must also be considered filed at SSA applies only when the
unless VA has complied with a claim for death pension and accrued evidence was filed in conjunction with
paragraphs (c)(1) and (2). These benefits. Consequently, proposed a claim for both SSA death benefits and
exceptions, which apply to statements § 5.131(a) would parenthetically VA death benefits. The clarification is to
made at a hearing or to a physician, describe ‘‘VA death benefits’’ as ‘‘[DIC], avoid a situation in which a final VA
reflect current practice. Persons who death pension and accrued benefits.’’ decision is subject to collateral attack
appear at a hearing or who provide We also propose to update the statutory based upon evidence filed with SSA in
information to a physician, especially in authority citation by including a support of a claim for only SSA death
connection with a VA medical reference to 38 U.S.C. 5101(b)(1), as the benefits that predates a subsequent
examination, should expect that such authority for considering a joint separate claim for VA death benefits.
information will be considered as part application to be a claim for ‘‘death
of their claim. Neither current § 3.217 benefits’’ is not derived from 38 U.S.C. Proposed § 5.131(c) is derived from
nor the proposed part 5 version of that 5105 alone. For the reasons set forth current § 3.201(b), which provides that
rule preclude VA from relying on above, the inclusion of death pension when SSA requests evidence from VA
medical statements or statements made and accrued benefits in the proposed that was submitted in support of a DIC
at a hearing. Moreover, there is no doubt regulation would not create a new basis application, VA will furnish it.
as to the identity of the person making of entitlement or result in a substantive However, current § 3.201(b) does not
the statement in these two discrete right that does not exist within the acknowledge the existence of laws,
situations. Finally, §§ 5.81, 5.82, and current framework of the pertinent law including the Health Insurance
20.700 adequately regulate statements or regulations. Portability and Accountability Act
made at a hearing. 70 FR 24680, 24686– The second sentence of current (HIPAA), that protect the confidentiality
87. § 3.153 states that VA is not precluded of various kinds of information or
by reason of having received a joint evidence that claimants or beneficiaries
Section 5.131 Applications, Claims, application from requesting necessary file with VA. For example, 38 U.S.C.
and Exchange of Evidence With Social evidence. This language is unnecessary 7332 protects the confidentiality of all
Security Administration (SSA)—Death because nothing in any statute or records containing the identity,
Benefits regulation, including proposed § 5.131, diagnosis, prognosis, or treatment of any
Proposed § 5.131(a) is derived from precludes VA from requesting necessary patient or subject maintained in
the first sentence of current § 3.153, evidence after we have received a claim connection with any program or activity
which states that an application for for benefits. In addition, the sentence carried out by or for VA and connected
death benefits filed with SSA on or after merely reiterates the last sentence of 38 with drug abuse, alcoholism or alcohol
January 1, 1957, on a form jointly U.S.C. 5105(b), and there is no need to abuse, infection with the human
prescribed by VA and SSA, will be maintain a regulatory provision that immunodeficiency virus, or sickle cell
considered a claim for VA death merely recites a statutory provision. anemia. VA can only release such
benefits, and will be considered as Proposed § 5.131(b) is derived in part records when certain prerequisites are
received by VA as of the date SSA from the second sentence of current satisfied, and we do not interpret
received it. § 3.201(a), which pertains to the section 7332 as providing for an
Note that although current § 3.1(p) exchange of evidence between VA and exemption for mandatory disclosures to
uses the terms ‘‘claim’’ and SSA. The cited authority for this SSA under this regulation or under its
‘‘application’’ interchangeably, we regulation includes 38 U.S.C. 5105, authorizing statute, 38 U.S.C. 5105(b).
propose to only use the term ‘‘claim’’ in discussed above. Proposed § 5.131(b) Also, 5 U.S.C. 552a contains general
procedures that all agencies must follow Paragraph (b) of proposed § 5.132 § 5.132, we propose to simplify the
when determining whether to release explains that for the purposes of description by substituting the inclusive
records that they maintain on § 5.132(b) the term ‘‘foreign documents’’ term ‘‘officer of the Department of State
individuals. Therefore, we propose to means documents that are signed under authorized to authenticate documents.’’
add a sentence in proposed § 5.131(c) to oath or affirmation in the presence of an We note that the Department of State
clarify that any disclosure of evidence to official in a foreign country. This has promulgated 22 CFR 131.1, which
the SSA under this paragraph must definition is derived from current authorizes specially designated
comply with all requirements of any § 3.202(a). Examples of foreign ‘‘authentication officers’’ to issue
applicable privacy or confidentiality documents are described in the certificates of authentication under the
laws, which would include HIPAA. proposed regulation in order to aid the seal of the Department of State on behalf
reader. of the Secretary of State. That regulation
Section 5.132 Claims, Statements, Paragraph (b) also directs the reader to also prescribes the proper form of
Evidence, or Information Filed Abroad; a list (in paragraph (c)) of foreign authentication. A certificate of
Authentication of Documents From documents that do not require authentication therefore constitutes the
Foreign Countries authentication. State Department’s official
Proposed § 5.132 is derived from Paragraph (c) of proposed § 5.132 acknowledgment that a document of
current § 3.202, VA’s regulation restates current § 3.202(b). In addition, foreign origin is genuine.
pertaining to the criteria for the proposed § 5.132(c)(3) contains a direct
acceptance of foreign evidence, and reference to § 2.3, which pertains to Section 5.133 Information VA May
§ 3.108, which relates to occasions when delegation of authority to employees to Request From Financial Institutions
the State Department functions as an take affidavits, to administer oaths, etc. Proposed § 5.133, derived from
agent of VA. We believe it is logical to This reference is appropriate, as it bears current § 3.115, will provide readers
consolidate into a single regulation the directly on the subject matter contained with clarification of the different types
rule pertaining to filing claims or in proposed § 5.132. Current of information VA may request from a
evidence in foreign countries with the § 3.202(b)(4) states that authentication financial institution, the conditions
rule pertaining to filing evidence from will not be required, ‘‘[w]hen a copy of under which a request may be made, the
foreign sources. a public or church record from any steps for making a request, and VA’s
In paragraph (a) of § 5.132, we foreign country purports to establish responsibilities with regard to the
propose to include the provisions of birth, adoption, marriage, annulment, handling of this information once it is
current § 3.108, which recognize U.S. divorce, or death, provided it bears the obtained.
diplomatic and consular officers abroad signature and seal of the custodian of The first sentence of current § 3.115(a)
as agents for the acceptance of VA such record and there is no conflicting reads: ‘‘The Secretary of Veterans
applications or claims, or evidence in evidence in the file which would serve Affairs may request from a financial
support of a claim pending with VA. We to create doubt as to the correctness of institution the names and addresses of
clarify that the rule applies to the record.’’ Paragraph (b)(5) states that its customers.’’ As in several other
submissions of claims or of statements, authentication will not be required, proposed part 5 rules, this rule will refer
evidence, or information in support of a ‘‘[w]hen a copy of the public or church to ‘‘VA’’ rather than ‘‘[t]he Secretary of
claim. record from one of the countries Veterans Affairs’’ to shorten the
Current § 3.108 provides that comprising the United Kingdom, reference without changing its meaning.
diplomatic and consular officers may namely: England, Scotland, Wales, or Some readers may not have a clear
act as agents of VA, ‘‘and, therefore, a Northern Ireland, purports to establish understanding of what constitutes a
formal or informal claim or evidence birth, marriage, or death, provided it ‘‘financial institution,’’ a term that is
submitted in support of a claim filed in bears the signature or seal or stamp of used in the first sentence of current
a foreign country will be considered as the custodian of such record and there § 3.115(a). Accordingly, we propose to
filed in [VA] as of the date of receipt by is no evidence which would serve to add examples of various types of
the State Department representative.’’ create doubt as to the correctness of the financial institutions. Examples include
We intend no substantive changes to records.’’ VA believes that maintaining banks, savings and loan associations,
this regulation by eliminating the term a different rule for the United Kingdom trust companies, and credit unions.
‘‘informal claim.’’ The term ‘‘claim’’ is unnecessary because records The current language of § 3.115 and
necessarily embraces all of the types of maintenance in the United Kingdom is the statutory provisions of 12 U.S.C.
claims listed in the regulations, not necessarily superior to that of all 3413 explicitly authorize VA to obtain
including informal and formal claims. other countries. Moreover, we believe only names and addresses from a
Current § 3.108 uses the terms that a single rule will be easier for VA financial institution. However, VA also
‘‘diplomatic and consular officers of the personnel to correctly apply and for the possesses statutory authority to
Department of State’’ and ‘‘the State public to understand. We therefore subpoena financial information.
Department representative,’’ to describe propose not to include an equivalent to According to the Right to Financial
the officials who are authorized to § 3.202(b)(5) in § 5.132. Privacy Act, ‘‘A government authority
receive claims and evidence. For Paragraph (d) of proposed § 5.132 is may obtain financial records * * *
purposes of § 5.132, we propose to derived from current § 3.202(a). Current pursuant to an administrative subpoena
simplify the description by substituting § 3.202(a) uses, among others, the terms or summons otherwise authorized by
the inclusive term ‘‘Department of State ‘‘United States Consular Officer,’’ ‘‘the law if there is reason to believe that the
representative.’’ State Department,’’ and ‘‘the nearest records sought are relevant to a
Paragraph (b) of proposed § 5.132 American consul,’’ to describe the legitimate law enforcement inquiry.’’ 12
explains that the term ‘‘authentication’’ various Department of State officials U.S.C. 3405. ‘‘Government authority’’ is
means that ‘‘an official listed in who may authenticate the signatures of defined in this Act as ‘‘any agency or
paragraph (d) of this section verifies that officials of foreign countries in cases department of the United States, or any
the foreign document, including each where affidavits or other documents are officer, employee, or agent thereof.’’ 12
signature, stamp, and seal appearing on required to be executed under oath U.S.C. 3401(3). The Act also defines
it, is genuine and has not been altered.’’ before foreign officials. For purposes of ‘‘law enforcement inquiry’’ as ‘‘a lawful
investigation or official proceeding through a subpoena. To ensure readers Evidence Requirements for Former
inquiring into a violation of, or failure understand the meaning of the word Prisoners of War (POWs)
to comply with, any * * * regulation, ‘‘subpoena,’’ we propose to define it in Section 5.140 Determining Former
rule, or order issued pursuant thereto.’’ paragraph (b). Our definition, which is Prisoner of War Status
12 U.S.C. 3401(8). These provisions give ‘‘a legal document commanding an
VA the authority, under certain individual or organization to provide Proposed § 5.140 contains rules
circumstances, to obtain financial specified evidence to the issuer of the relating to the evidentiary and
information through a subpoena, subpoena,’’ is derived from the 2001 adjudicative considerations in
provided it is necessary in order to edition of Merriam-Webster’s Dictionary determining prisoner of war (POW)
determine whether an individual has of Law. status. Proposed § 5.140 is derived from
violated any of the regulations on The content of paragraph (c)(1) of current § 3.1(y), which sets forth general
veterans’ benefits. Additionally, 38 proposed § 5.133 is derived from current principles applicable to establishing
U.S.C. 5711(a)(2), authorizes the § 3.115(b), while the content of status as a POW, including definitions
Secretary and employees to whom the paragraph (c)(2) is derived from 12 and certain evidentiary and adjudicative
Secretary has delegated such authority U.S.C. 3412(a), which was part of the considerations. We have addressed the
to ‘‘require the production of books, Right to Financial Privacy Act of 1978. various definitions contained in current
papers, documents, and other Although we have changed the language 3.1(y) in a separate NPRM that restated
evidence.’’ taken from these two sources in order to such definitions in § 5.1 of proposed
For example, current §§ 3.660(a), make the proposed rule easier to part 5. See 71 FR 16464, 16473.
3.256(a), and 3.277(b) require understand, we intend no change in the Additional principles establishing
individuals claiming entitlement to or substance they convey. former POW status are found in § 3.41,
receiving income-based benefits from which sets forth special rules applicable
VA to promptly report changes in their Section 5.134 Will VA accept a to former prisoners of war with
income. If VA discovers that a current signature by mark or thumbprint? Philippine service. These principles are
or former beneficiary may have reported Proposed § 5.134 is derived from also covered in a separate NPRM. See 71
a lower amount of income to VA than current § 3.2130. We are not proposing FR 37790, 37794.
the financial institution reported to the any changes to the current regulation. Paragraph (a) of proposed § 5.140
Internal Revenue Service as having been Rather, we will incorporate the language restates the current rule that service
paid to the beneficiary, VA will ask the of current § 3.2130 at proposed § 5.134. department determinations of POW
individual to verify the amount status are generally binding on VA, and
received. If the individual refuses or Section 5.135 Statements Certified or states the criteria VA will use to decide
fails to respond to VA’s request, VA has Under Oath or Affirmation POW status in all other cases. It also
authority under 12 U.S.C. 3405 to restates the requirement in current
Proposed § 5.135 is based on current
subpoena from the financial institution § 3.1(y)(3) that the Director of the
§ 3.200, which states, in pertinent part,
a statement showing amounts it paid to Compensation and Pension Service
‘‘All written testimony submitted by the
the individual. must approve all 152 office decisions
Before issuing a subpoena to a claimant or in his or her behalf for the
purpose of establishing a claim for based on criteria for determining former
financial institution, 12 U.S.C. 3405(2)
service connection will be certified or POW status other than service
requires VA to: (1) Send a copy of the
under oath or affirmation.’’ Instead of department findings. In order to
subpoena to the current or former
referring to ‘‘written testimony’’ we recognize the modern dangers presented
beneficiary; (2) inform the current or
propose to use the phrase, ‘‘[a]ny by non-government forces, we propose
former beneficiary of the reason VA is
requesting financial information from documentary evidence or written to expand the instances in which
the financial institution; and (3) explain assertion of fact’’ which we believe is service department findings will be
to the current or former beneficiary the easier for readers to understand. We accepted. Whereas current § 3.1(y)(1)
procedures for challenging VA’s propose to give VA discretion to only accepts service department
proposal to issue a subpoena. consider such a submission that is not findings that a person was a POW
VA’s authority to issue subpoenas to certified or under oath or affirmation or during a period of war when detention
financial institutions in order to verify to require certification, oath, or or internment was by an enemy
the amount of income paid by a affirmation if considered necessary to government or its agents, under
financial institution to a current or establish the reliability of a material paragraph (a) of proposed § 5.140, VA
former VA beneficiary, as well as the document. This would give VA will also accept a finding by the service
circumstances under which they may be discretion to consider documents which department that a person was a POW
issued, are not addressed in part 3 of are considered reliable under the during a period of war when detention
current 38 CFR. However, we believe circumstances of a particular case. It or internment was by a hostile force.
this is an issue about which the public would also give VA discretion to require Paragraphs (b), (c), and (d) of
should be informed. For example, if VA certification, oath, or affirmation when proposed § 5.140 restate the content of
discovers that a current or former a submission appears unreliable, which current § 3.1(y)(2)(i), (y)(2)(ii), and
beneficiary, while receiving either will help ensure program integrity. (y)(4), respectively. In paragraph (d), we
pension or parents’ dependency and Whereas current § 3.200(b) is limited propose to cross-reference § 5.660,
indemnity compensation, may have to claims for service connection, we pertaining to ‘‘line of duty’’ and derived
underreported or failed to report to VA propose to have § 5.135(b) apply to all from current §§ 3.1(m) and 3.301(a), and
the receipt of income from a financial claims within the scope of part 5. We § 5.661, pertaining to ‘‘willful
institution, VA may ask the financial believe that there is nothing unique misconduct’’ and derived from current
institution that paid the income to about claims for service connection with §§ 3.1(n), 3.301(a) through (d), and
provide a statement showing the respect to the reliability of evidence. We 3.302. See 71 FR 31056, 31062–63.
amount it paid to the individual. We believe that the principles stated above At the end of the proposed rule, we
propose to clarify in § 5.133(b) that should apply equally to all claims for propose to cross-reference proposed
requests of this type must be made compensation or pension benefits. § 5.611, which restates current § 3.41,
relating to POW status and Philippine considered. This is not a substantive Except as otherwise provided, the effective
service. See 71 FR 37790, 37795. change from part 3 and does not provide date of an evaluation and award of pension,
a new benefit to former POWs. VA compensation or dependency and indemnity
Section 5.141 Medical Evidence for compensation based on an original claim, a
accepts ‘‘buddy statements’’ in all cases.
Former Prisoners’ of War Compensation claim reopened after final disallowance, or a
We explicitly provide for such evidence claim for increase will be the date of receipt
Claims
here, and discuss how to evaluate that of the claim or the date entitlement arose,
Proposed § 5.141 is based in part on evidence, because such evidence is whichever is later.
those portions of current § 3.304, more frequently encountered in cases
‘‘Direct service connection; wartime and (a) Unless specifically provided. On
relating to POWs. basis of facts found.
peacetime,’’ that pertain to former Proposed paragraph (c) would require
POWs. Except as provided below, no The exceptions to the general
VA to consider statements from fellow effective-date rule, which are currently
substantive changes are intended to
service members submitted in contained in other provisions of
these provisions. Portions of current
connection with a former POW’s claim §§ 3.400 through 3.405, would be
§ 3.304 have already been addressed in
for benefits, regarding the former POW’s contained in regulations located
a prior NPRM, published as proposed
physical condition before capture, the proximate to their respective benefit
on May 10, 2005. See 70 FR 24680.
circumstances surrounding the former regulations.
Other provisions of current § 3.304 will
POW’s internment, changes in the In paragraph (a) of § 5.150, we
be addressed in a separate NPRM.
Proposed paragraph (a) provides former POW’s physical condition propose not to include the phrase ‘‘facts
information regarding injuries and following release from internment, or found’’ in current § 3.400(a). Instead, we
conditions claimed by a former POW the existence of signs or symptoms of will only use the phrase ‘‘date
that are obviously due to service. The disability following the former POW’s entitlement arose,’’ which appears in
paragraph states that VA will rate such release from internment. the introductory text of § 3.400. Section
injuries and conditions without Paragraph (d) of proposed § 5.141 5110(a) of title 38, United States Code,
awaiting receipt of service records. This provides that the lack of medical on which the general effective date rule
paragraph is derived from the last findings from clinical records made stated in § 3.400 is based, uses ‘‘facts
sentence of current § 3.304(c) and is upon a former POW’s return to U.S. found’’ and does not use the phrase
included to clarify how the general rule control will not be determinative of ‘‘date entitlement arose.’’ Nevertheless,
in proposed § 5.91, the part 5 version of whether service connection is awarded the legislative history of 38 U.S.C.
current § 3.304(c), applies to conditions for a particular disability. It is derived 5110(a) and the regulatory history of 38
resulting from POW confinement. from the first sentence of current CFR 3.400 both suggest that ‘‘facts
Proposed paragraph (b) provides that § 3.304(e). found’’ and ‘‘date entitlement arose’’
where disability compensation is Proposed paragraph (e) restates the mean the same thing. Both phrases are
claimed by a former POW, the second and third sentences of current derived from Veterans Regulation No.
claimant’s statements as to the § 3.304(e). 2(a), promulgated by Exec. Order 6230
incurrence or aggravation of an injury or Finally, proposed paragraph (f) (1933), which states that the effective
disease during or immediately prior to includes information from the second date of an award of pension ‘‘shall be
detention or internment will be viewed sentence of current § 3.326(b), which fixed in accordance with the facts
as truthful unless there is clear and provides that VA will not deny found’’ except that no awards would be
convincing evidence to the contrary. monetary benefits unless the claimant effective before the date of separation
This is a substantive change based upon has been offered a complete physical from service, date of death, date of the
expanding current § 3.304(d). VA’s examination at a VA facility. Unlike happening of the contingency upon
practice has been to treat statements by current § 3.326(b), which states that the which disability or death pension is
former POWs in the same manner as examination will be ‘‘conducted at a allowed, or the date of receipt of the
combat veterans for purposes of 38 [VA] hospital or outpatient clinic,’’ claim therefor, whichever is the later
U.S.C. 1154(b) in order to recognize the proposed paragraph (f) does not specify date. The various dates listed in the
deficiencies or complete absence of the location of the examination to be immediately preceding sentence, except
many former POWs’ service medical provided because an examination may for the date of receipt of the claim, are
records showing evidence of diseases or be provided by VA at one of a variety exceptions to the rule to assign the
injuries suffered during or immediately of VA medical facilities, or, in some effective date in accordance with the
before detention or internment. This instances, VA may provide an facts found, and are themselves dates
substantive change is consistent with examination with a private contractor at upon which entitlement to various
current § 3.304(f)(2), pertaining to post- a non-VA facility. ‘‘[M]edical kinds of benefits is predicated. For all
traumatic stress disorder claimed by a examination’’ used in proposed practical purposes, these are the
former prisoner of war. At the end of paragraph (f), as opposed to ‘‘physical relevant ‘‘facts’’ upon which entitlement
paragraph (b), we propose to add a examination’’ used in current § 3.326(b), would be based.
reference to § 3.304(f)(2) to let the reader VA has consistently so construed
clarifies that the examination is not
know the location of a similar provision Veterans Regulation No. 2(a), a fact
limited to examination for physical
regarding POWs. We cite to the current made clear by an examination of the
disorders but includes examination for
part 3 regulation because the proposed effective-date regulations VA issued
mental disorders as well.
part 5 regulation that deals with the after Veterans’ Regulation No. 2(a).
same subject matter has not yet been General Effective Dates for Awards These are as follows: VA Regulation
published. Current § 3.304(f)(2) may (VAR) 1148 (concerning the assignment
Section 5.150 General Effective Dates

differ from its eventual part 5 for Awards or Increased Benefits of effective dates for ratings made under
counterpart in some respects. VA’s 1945 Schedule for Rating
Proposed paragraph (c) notes that Proposed § 5.150 would restate Disabilities); VAR 1212 (effective date
supporting evidence from fellow service without substantive change the for awards of disability compensation);
members that an injury or disease was introductory text and paragraph (a) of VAR 2574 (effective date of awards of
incurred during confinement will be current § 3.400, which state: death compensation or pension), and
VAR 2945 (effective date of payment of thing as ‘‘date entitlement arose’’ and to The Subpart H provisions were
dependency and indemnity make the regulations more user-friendly. published as proposed on March 9,
compensation). VA used the term ‘‘facts Therefore, we will use ‘‘date entitlement 2007. See 72 FR 10860.
found’’ in only two of these regulations. arose’’ in § 5.150. The proposed rule The Subpart I provisions were
VAR 2574 (Jan. 25, 1936) (which cites clarifies that the term ‘‘date entitlement published as proposed on June 30, 2006.
Veterans Regulation No. 2(a)), VAR 2945 arose’’ has the same meaning when used See 71 FR 37790.
(Jan. 1, 1958) (which was changed from in other effective-date regulations The Subpart K provisions were
different language to mirror the throughout part 5. published as proposed on May 31, 2006.
language of what is now 38 U.S.C. We also propose to define the phrase See 71 FR 31056.
5110(a)). Instead of using ‘‘facts found,’’ ‘‘date entitlement arose’’ in paragraph Section 5.151 Date of Receipt
VA used phrases such as ‘‘date the (a)(2) of § 5.150 to make the rule easier
evidence shows a compensable or to understand. As noted above, the Current § 3.1(r) sets forth a definition
pensionable degree of disability to have phrase has never been defined in the of the phrase ‘‘date of receipt.’’ We
existed’’ and ‘‘date the evidence shows statute or in the regulations. Proposed propose to address that topic in a
entitlement.’’ VAR 1148 (Jan. 25, 1936). paragraph (a)(2) defines ‘‘date provision designated as § 5.151.
In 1950, VAR 2574 was amended to entitlement arose’’ as the date shown by Proposed paragraph (a) would broaden
state that the effective date for an award the evidence to be the date that the the concept in current § 3.1(r) to include
of death compensation or pension claimant first met the requirements for ‘‘documents’’ in addition to claims,
would be the date ‘‘of the veteran’s the benefit awarded. This definition information, and evidence. Although
death, date of the happening of the accurately expresses the intent of the the language in the proposed Part 5
contingency upon which death relevant statutes cited above. counterparts of current §§ 3.108, 3.153,
compensation or pension is allowed, or We also propose to add a sentence to and 3.201 does not contain the phrase
the date of receipt of [the] application emphasize that VA will assume the ‘‘date of receipt,’’ proposed paragraph
therefor,’’ whichever is later. This ‘‘date entitlement arose’’ was before the (a) would nevertheless retain the
general effective-date provision is very date VA received the claim for benefits exceptions for these provisions that are
similar to that of Veterans Regulation unless the evidence indicates otherwise. contained in current § 3.1(r) because
No. 2(a) except that it is devoid of the We believe it is important to provide proposed paragraph (a) will refer to a
phrase ‘‘fixed in accordance with the this guidance because in the majority of concept rather than merely define the
facts found.’’ Nevertheless, it conveys cases, claimants meet the requirements specific term ‘‘date of receipt.’’
the same information. for a benefit before they apply for it. In Proposed paragraph (b) would
When Congress first consolidated the such cases, the general rule mandates incorporate provisions from current
laws and regulations related to that the effective date be the date of § 3.1(r) authorizing VA to establish
compensation and pension, the present receipt of the claim for that benefit, and exceptions to the general rule when a
version of what is now 38 U.S.C. 5110(a) not some later date. natural or man-made disaster or similar
first appeared in the statute. Public Law Proposed § 5.150(b) sets forth a chart event has caused disruption in the
85–56, section 910(a), 71 Stat. 83, 119 that provides readers with the location process through which VA ordinarily
(1957). The purpose of this law was to of other effective-date provisions in part receives correspondence. The intended
incorporate existing law into a single 5, which are exceptions to the general effect is to ensure that claimants and
act. According to the committee reports, effective date rule of proposed beneficiaries are not deprived of
Congress did not intend to make any paragraph (a). The chart is intended potential entitlement to benefits because
substantive changes to the effective date solely for informational purposes. As of unexpected delays or impediments
provisions. See H.R. Rep. No. 85–279, at proposed, the chart shows both already through no fault of their own. Section
2, reprinted in 1957 U.S.C.C.A.N. 1214, published and as yet unpublished Part 512(a) of 38 U.S.C., listed as statutory
1215 (1957); S. Rep. No. 85–332, at 2, 5 sections. The unpublished sections are authority for proposed § 5.151, pertains
reprinted in 1957 U.S.C.C.A.N. 1214, included as placeholders; many may to the Secretary’s ability to delegate
1241 (1957). This statute also repealed change before publication. The Subpart authority to officials and employees to
Veterans Regulation No. 2(a). Pub. L. B provisions were published as administer the laws and make decisions.
No. 85–56, § 2202(129), 71 Stat. at 167. proposed on January 30, 2004. See 69 The citation to 38 U.S.C. § 512(a) is used
The committee reports stated that the FR 4820. to justify empowering employees and
law ‘‘would repeal those provisions of Section 5.101(d) of Subpart C was officials to establish procedures in
law * * * which are obsolete, executed, published as proposed on May 10, 2005. emergency circumstances. Although
or restated in substance.’’ H.R. Rep. No. See 70 FR 24680. Proposed §§ 5.152, current § 3.1(r) makes a delegation to the
85–279, at 2, S. Rep. No. 85–322, at 2. 5.153, 5.162(b), 5.164, 5.165, 5.166(c), Under Secretary for Benefits, the cited
Therefore, Public Law 85–56 was (d), and 5.177 of Subpart C are statute does not limit delegation to the
intended to restate the substance of the contained in this document. Under Secretary for Benefits.
rule in Veterans Regulation No. 2(a), The Subpart D provisions were Accordingly, proposed paragraph (b)
despite changing the language. published as proposed on September 20, does not contain that limitation.
Current § 3.400 uses ‘‘date entitlement 2006. See 71 FR 55052.
arose’’ in the introductory text and uses Sections 5.463 and 5.477 of Subpart F Section 5.152 Effective Dates Based on
‘‘facts found’’ in paragraph (a). These were published as proposed on Change of Law or VA Issue
two phrases have been used December 27, 2004. See 69 FR 77578. We propose to re-state current § 3.114
interchangeably in the past, though Sections 5.567 to 5.572 of Subpart G in § 5.152. The heading for paragraph (b)
neither has been defined. This also were published as proposed on October of proposed § 5.152, ‘‘Reduction or
suggests that ‘‘facts found’’ and ‘‘date 1, 2004. See 69 FR 59072. A correction discontinuance of benefits’’ differs from
entitlement arose’’ mean the same thing. to proposed § 5.570 was published on the heading of current § 3.114(b),
We believe that we should only use one October 21, 2004. See 69 FR 61914. ‘‘Discontinuance of benefits,’’ in order
phrase consistently throughout the part Sections 5.524(c), 5.573, and 5.574 of to describe more accurately the content
5 to eliminate any confusion over Subpart G were published as proposed of the paragraph, which addresses both
whether ‘‘facts found’’ means the same on October 21, 2005. See 70 FR 61326. reductions of benefits and
discontinuances of benefits. Current date for an award based on an original appellate authorities or except as provided in
§ 3.114(b) states that a claimant has 60 claim or a claim reopened after final § 3.105 and § 3.2600 of this part.
days from the date of the notice of a adjudication (except as otherwise 38 CFR 3.104(a) (emphasis added).
proposed reduction or discontinuance provided) ‘‘shall be fixed in accordance We propose to repeat the language of
of benefits in which to submit evidence with the facts found, but shall not be § 3.104(a) in proposed § 5.160(a)
showing the proposed action should not earlier than the date of receipt of without any substantive change.
be taken. The last sentence of current application therefore.’’ Therefore, if the However, we will not repeat the word
§ 3.114(b) states that claim is not ‘‘finally’’ decided when VA ‘‘final’’ in § 3.104(a) in proposed
receives additional evidence, that is, if § 5.160(a). We believe that use of the
[i]f additional evidence is not received
within that period, the award will be reduced the evidence is submitted within the word ‘‘final’’ in this context may cause
or discontinued effective the last day of the appeal period or before an appellate confusion because the word ‘‘final’’ is
month in which the 60-day period expired. decision is rendered, then the effective used elsewhere in VA’s regulations to
date of the award can be as early as the refer only to agency of original
We propose to clarify in § 5.152(b) jurisdiction decisions that have not been
that if no evidence is received within 60 date VA received the ‘‘open’’ claim.
However, if VA were to treat all appealed within the time limits
days, or if evidence is received that does prescribed by statute and regulation for
not demonstrate that the proposed evidence submitted after the appeal
period has begun as ‘‘new and material their appeal. See, e.g., 38 CFR 20.302(a)
action should not be taken, the award (if Notice of Disagreement not filed
will be reduced or discontinued evidence,’’ then the effective date could
not be earlier than the date VA received within 1 year of notice of agency of
effective the last day of the month in original jurisdiction decision, that
which the 60-day period expired. that evidence (which would be
construed as a claim to reopen). Hence, decision shall become ‘‘final’’). Further,
Another change has to do with the use in 38 CFR 3.160(d), VA defines a
of the term ‘‘facts found’’ used in 38 CFR 3.156(b) and 3.400(q)(1)(i)
provide a claimant-friendly effective- ‘‘finally adjudicated claim’’ as one that
current § 3.114 and in 38 U.S.C. 5110(g). ‘‘has been allowed or disallowed by the
As noted in the discussion of proposed date rule for awards based on evidence
received while a claim is on appeal or agency of original jurisdiction, the
§ 5.150, VA interprets ‘‘facts found’’ and action having become final by the
another phrase used in effective date before the appeal period expires. This
interpretation is consistent with 38 expiration of 1 year after the date of
rules, ‘‘date entitlement arose,’’ to have notice of an award or disallowance, or
the same basic meaning. We are U.S.C. 7105(c), which provides that a
regional office denial is ‘‘final’’ when by denial on appellate review,
proposing to use only one of these terms whichever is the earlier.’’ This suggests
in § 5.152, ‘‘date entitlement arose,’’ to the time limit for initiating an appeal to
the Board of Veterans’ Appeals has that an agency of original jurisdiction
be consistent. decision might be simultaneously
expired and no appeal has been filed.
Section 5.153 Effective Date of Awards ‘‘final,’’ in the sense implied by
The proposed text is also consistent
Based on Receipt of Evidence Prior to § 3.104(a), on the date notice of the
with the Federal Circuit’s decision in
End of Appeal Period decision is given, and ‘‘non-final,’’ in
Jackson v. Nicholson, 449 F.3d 1204
the sense implied by § 3.160(d), because
We propose to revise current (Fed. Cir. 2006), which held that current
the time within which to appeal the
§§ 3.156(b) and 3.400(q)(1)(i) in order to § 3.156(b) does not refer to evidence
decision has not yet expired.
establish clearer rules regarding the received by VA after a Board decision In Majeed v. Principi, 16 Vet. App.
effective dates for awards based on the has been issued. 421, 427–28 (2002), the United States
types of evidence described in current Proposed § 5.153 retains this favorable Court of Appeals for Veterans Claims
§ 3.156(b). interpretation, but does rephrase the (CAVC) rejected the argument that the
Section 3.156(b) reads as follows: rule. The current regulation can be read phrase ‘‘final and binding’’ in § 3.104(a)
New and material evidence received prior to suggest that new and material means that a decision is final and
to the expiration of the appeal period, or evidence is needed while the claim is binding as of the date issued because it
prior to the appellate decision if a timely still ‘‘open.’’ However, in such cases could be seen to be at odds with the
appeal has been filed (including evidence there is no claim to ‘‘reopen’’ because availability of an administrative appeal.
received prior to an appellate decision and the claim has not been ‘‘closed’’ (that is,
referred to the agency of original jurisdiction VA does not intend that the term ‘‘’final
the claimant could still prevail on that and binding’’ preclude an
by the Board of Veterans Appeals without
consideration in that decision in accordance claim). administrative appeal. In fact, other VA
with the provisions of § 20.1304(b)(1) of this General Rules on Revision of Decisions regulations specifically provide for
chapter), will be considered as having been review of an agency of original
filed in connection with the claim which was Section 5.160 Binding Effect of VA jurisdiction decision that has not
pending at the beginning of the appeal Decisions become final for purposes of appeal. For
period. example, pursuant to 38 CFR 3.2600, a
Proposed § 5.160 is derived from
Although the words ‘‘effective date’’ current § 3.104, and is intended to claimant may seek review of an agency
do not appear in current § 3.156(b), the clarify when a decision rendered by a of original jurisdiction decision by a
substantive effect of the paragraph is to decision maker in a VA agency of Veterans Service Center Manager or
establish an appropriate effective date, original jurisdiction is binding on other Decision Review Officer after filing a
in tandem with § 3.400(q)(1)(i). VA agencies of original jurisdiction. The Notice of Disagreement. Also, pursuant
Section 3.400(q)(1)(i) provides that current version provides that decisions to 38 CFR 3.105(b), if revision of an
the effective date for a claim reopened of a VA agency of original jurisdiction, agency of original jurisdiction decision
based on new and material evidence is warranted as a result of a difference
‘‘[o]ther than service department shall be final and binding on all field offices
of [VA] as to conclusions based on the
of opinion, an agency of original
records’’ that are ‘‘[r]eceived within evidence on file at the time VA issues written jurisdiction may recommend to VA
[the] appeal period or prior to appellate notification in accordance with 38 U.S.C. Central Office that the decision be
decision * * * will be as though the 5104. A final and binding agency decision reversed or revised.
former decision had not been rendered.’’ shall not be subject to revision on the same VA therefore intends to clarify in this
Under 38 U.S.C. 5110(a), the effective factual basis except by duly constituted rulemaking that an agency of original
jurisdiction decision is ‘‘binding’’ on the unmistakable error, of prior final Section 5.164 Effective Dates for
same or another agency of original decisions. Revision of Decisions Based on
jurisdiction on the same factual basis, Proposed § 5.162 will not deviate in Difference of Opinion
barring a change in law, except under scope from the body of law that
the circumstances enumerated in We propose in § 5.164 to state VA’s
precedes it. Consequently, § 5.162 effective-date provision applicable to
current § 3.104(a). Further, we have provides that, absent CUE, prior final
changed the cross-references in current revisions of decisions based on
decisions are accepted as correct. The difference of opinion. Proposed § 5.164
§ 3.104(a) to §§ 3.105 and 3.2600 to
requirement of a showing of CUE provides that the effective date of the
match their part 5 counterparts.
applies only to a ‘‘final decision,’’ as revision would be the date benefits
Paragraph (b) of § 3.104 currently defined by proposed § 5.2 to mean ‘‘a would have been paid if the previous
provides that decisions made by an
decision on a claim for VA benefits with decision had been favorable.
agency of original jurisdiction and VA
respect to which VA provided the
Insurance Service adjudicators, which Section 5.165 Effective Dates for
claimant with written notice’’ and the
are ‘‘made in accordance with existing Reduction or Discontinuance of Awards
claimant either did not file a timely
instructions,’’ concerning character of Based on Error
Notice of Disagreement or Substantive
service, character of discharge,
relationship issues, and other matters, Appeal or the Board has issued a final Paragraphs (a), (b), and (c)(1) of
are reciprocally binding when they are decision on the claim. See 71 FR 16464, proposed § 5.165 are derived from
based on the same criteria. VA proposes 16473–74 (March 31, 2006). We also current § 3.500(b)(1) and (2), which
not to include the phrase ‘‘made in proposed to incorporate 38 U.S.C. govern the effective dates of reductions
accordance with existing instructions’’ 5109A(c) and (d), which state that a or discontinuances of awards of
from this paragraph because the CUE claim may be instituted by VA or compensation, DIC, or pension based on
instructions to which it refers are upon request of the claimant and that a error. In paragraph (a), we propose to
contained in VA procedural manuals CUE claim may be made at any time exclude from § 5.165 payment amounts
rather than regulations in title 38, Code after a final decision is made. that are not authorized by a VA rating
of Federal Regulations. The deletion of We propose not to include the decision, such as a payment of an
this phrase does not imply that VA is examples of determinations contained incorrect amount or a duplicative
not required to follow the laws and in the first sentence of current § 3.105(a) payment. Proposed § 5.165 applies only
regulations pertaining to the making of (‘‘decisions of service connection, to reductions or discontinuances of
determinations of the type described in erroneous awards. If a payment has not
degree of disability, age, marriage,
paragraph (b). It merely reflects a been authorized by a rating decision,
relationship, service, dependency, line
judgment that references to internal then VA has not made an award of such
of duty, and other issues’’). Because the
procedural manuals and other VA- an erroneous payment and therefore
examples conclude with ‘‘* * * and
generated documents that lack the force recovery of that payment is not a
other issues,’’ they would include any
and effect of law are not appropriate for reduction or discontinuance of an
determination. Likewise, the proposed ‘‘erroneous award’’ under 38 U.S.C.
inclusion in the regulations. rule applies to any determination. By
Finally, we propose to replace the 5112(b)(9) or (10). We would add in
eliminating the examples, we intend to paragraph (a) that ‘‘[s]uch amounts are
terms ‘‘adjudication activity’’ and emphasize that the rule applies to any
‘‘insurance activity’’ contained in overpayments, subject to recoupment.’’
determination and avoid a
§ 3.104(b) with ‘‘Veterans Service misperception that the examples are a We propose to rewrite the current
Center’’ and ‘‘VA Insurance Center,’’ language of § 3.500(b) to enhance its
limitation on the rule.
respectively; again, because these are readability. We also propose not to
the more precise modern designations of Section 5.163 Revision of Decisions include the word ‘‘payee’’ and insert in
the relevant entities. These proposed Based on Difference of Opinion its place the term ‘‘beneficiary.’’ The
changes would simply modify the term ‘‘beneficiary’’ is consistent with
terminology to make it easier for the Current § 3.105(b) provides that where the phrasing of the authorizing statute,
public to understand. an agency of original jurisdiction 38 U.S.C. 5112(b)(9).
believes that revising or amending a In paragraph (c)(2), we propose to add
Section 5.161 Review of Benefit Claims previous decision is warranted, based a new definitional section that will
Decisions on a difference of opinion, a clearly define ‘‘administrative error’’
We propose to repeat the language of recommendation will be made to VA and ‘‘error in judgment.’’ This definition
§ 3.2600 in proposed § 5.161 without Central Office to authorize a change in will clearly show when these terms are
any substantive change. We have only the decision. We have used the term applicable and will be consistent with
changed the cross-references in current ‘‘Director of the Compensation and precedential opinions prepared by VA’s
§ 3.2600 to §§ 3.103 and 3.105 to match Pension Service’’ instead of ‘‘[VA] General Counsel. VAOPGCPRECs 2–90
their part 5 counterparts. Central Office’’ and used the term (March 20, 1990) and 6–97 (January 18,
‘‘Veterans Service Center Manager 1997) held that an administrative error
Section 5.162 Revision of Decisions (VSCM)’’ instead of ‘‘adjudicative includes an error of fact (for example,
Based on Clear and Unmistakable Error agency’’ to accurately reflect long- VA mistakes or overlooks the facts or
(CUE) standing VA practices. Additionally, we commits a purely clerical error) and that
In § 5.162, we propose to state clearly propose to state that this section an error in judgment includes those
that VA adjudicative agency decisions authorizes revisions only when they instances when VA fails to properly
that are final will be presumed correct would lead to a more favorable decision interpret, understand, or follow
unless there is a showing of clear and on the claim that was the subject of a Department instructions, regulations, or
unmistakable error (CUE). In addition, prior decision, and that this section statutes. The proposed definitional
this section will state the effective date does not apply to a prior decision that section will assist the users of the
for awards resulting from the revision or is final or has been the subject of a regulation in determining under what
reversal, based on a finding of clear and Substantive Appeal. circumstances VA may have committed
administrative error or an error in Section 5.170 Calculation of 5-Year, paragraph (c) states that ‘‘a rating is not
judgment. 10-Year, and 20-Year Protection Periods continuous if benefits based on that
Current § 3.344 provides that ‘‘ratings rating are discontinued or interrupted
Section 5.166 New and Material
which have continued for long periods because the veteran reentered active
Evidence Based on Service Department
at the same level (5 years or more)’’ service.’’ See VAOGCPREC 5–95
Records (holding that a rating discontinued
cannot be reduced absent a
Current § 3.156(c) addresses those reexamination ‘‘disclosing based on reentry into service was not
situations when a prior final decision is improvement, physical or mental, in continuous for 20 years for purposes of
being reconsidered based on the official these disabilities.’’ We propose in section 110).
service department records. We repeat We believe that the holding of
§ 5.170 to set forth general provisions
that language in proposed § 5.166. VAOGCPREC 5–95 logically should
governing how VA determines whether
apply to the continuity requirement for
General Rules on Protection or a rating has been continuously in place
the 5-year protection set forth in current
Reduction of Existing Ratings for the 5-year period currently found in
§ 3.344(c). Explicitly stating this rule in
§ 3.344. This rule also sets forth those
Currently, the rules that protect proposed § 5.170(c) will promote
provisions that apply to determining consistency in decision making by VA
existing VA disability ratings from whether a 20-year period has been
either reduction or severance are located staff.
continuous, such that a rating is The rule of 5.170(c) regarding re-entry
in several different subparts within part protected under the part 5 equivalent of
3 of title 38, CFR. For example, most of into active service does not apply to
38 CFR 3.951(b). Additionally, proposed break the 10-year period of proposed
the substantive rules on the subject (38 § 5.170 determines how to calculate
CFR 3.951 et seq.) are located under the § 5.175 for protection of service
whether service connection has been in connection. Under current § 3.654(b),
undesignated part 3 subheading, effect for 10 years and is, therefore,
‘‘Protections;’’ however, substantive the prior determination ‘‘of service
protected under the part 5 equivalent of connection is not disturbed’’ because of
rules relevant to severance of service 38 CFR 3.957. It is preferable to state the
connection, as well as unique the re-entry into active service. Because
general rules applicable to calculating service connection remains in effect, the
procedural provisions, are also located these periods in one regulation rather
in current 38 CFR 3.105. Meanwhile, period of continuity is not broken.
than repeat the concepts in multiple Proposed paragraph (d) states that a
lesser protections afforded to stable regulations. rating period may be protected without
ratings are located in § 3.344. Proposed paragraph (b) states the regard to whether the beneficiary
We therefore propose to reorganize general rule that the described periods actually received VA compensation
these rules under the undesignated begin on the effective date of the based on that rating. This is based on
subheading, ‘‘General Rules on protected award or rating and end on current VA policy. We note that this
Protection or Reduction of Existing the date that service connection would rule is intended to apply to all
Ratings,’’ in part 5 of title 38, CFR. This be severed or the rating reduced. This adjustments, except for reentry of active
reorganization will contain the general provision takes into account any service, including a beneficiary whose
rules that relate to the protection of applicable due process provisions payments were adjusted by deduction,
existing ratings, which are found in contained in current § 3.105 and recoupment, apportionment, reduction
current 38 CFR 3.105. It will also proposed § 5.176. The method of in compensation due to incarceration,
include those rules pertaining to the measuring the duration of a rating is and a beneficiary who elected to receive
protection of the following ratings: explicit in current §§ 3.951 and 3.957; retirement pay. These common
Those that have stabilized, those in but it is not explicit in § 3.344. examples are listed in proposed
existence for a 20-year period, those However, the implicit measurement paragraph (d).
based on the 1925 Schedule of Rating method in § 3.344 is consistent with Proposed paragraph (e) extends the
Disabilities, those in effect on December VA’s current practice and policy, and protections found in current §§ 3.344,
31, 1958, and those in effect for a 10- with the interpretation of current 3.951, and 3.957 to retroactive increases
year period. These are derived from § 3.344(c) set forth in Brown v. Brown, in rating or grants of service connection,
current §§ 3.344, 3.951 through 3.953, 5 Vet. App. 413 (1993). In that case, the including those awarded based on clear
and 3.957, respectively. Court held: ‘‘[T]he duration of a rating and unmistakable error (CUE) under
This reorganized portion does not for purposes of § 3.344(c) must be current § 3.105(a)/proposed § 5.162. In
include current § 3.950, the rule relating measured from the effective date addition, the rule clearly states that it
to the awards of pension or assigned that rating until the effective applies to any protection period even if
compensation to a helpless child, date of the actual reduction. * * * it includes a period based on a
because this rule does not protect an [T]hose results flow from the plain and retroactive award. The extension to
existing rating. It also does not include unambiguous language of the retroactive awards is not a new VA
current § 3.954, the rule relating to regulation.’’ Brown, 5 Vet. App. at 418– practice. First, as to retroactive awards
awards of burial benefits, which will be 419. We believe that making the not based on a finding of CUE, the
addressed in another NPRM. The part 5 effective-date-measurement rule practice is well-established, even as to
rule relating to federal employees’ explicitly applicable to the 5-year current § 3.344. See, e.g., Brown v.
compensation cases, current § 3.958, protection against reduction set forth in Brown, 5 Vet. App. 413, 417 (1993). The
will be located with the proposed § 3.344, as it is in current §§ 3.951 and application of the retroactive protection
regulations regarding concurrent 3.957, will help clarify VA’s practice on to the 20-year period in cases based on
receipt; the rule relating to tuberculosis this issue. findings of CUE is required by 38 U.S.C.
(current § 3.959) will be located with the The requirement that the 20-year 110. See VAOGCPREC 68–91 (citing
regulations regarding tuberculosis; and protection period be continuous is set H.R. Rep. No. 533, 83rd Cong., 1st Sess.
the rule relating to Section 306 and Old- forth in 38 U.S.C. 110, which protects 2 (1953); Pub. L. No. 88–445, 78 Stat.
Law pension protection (current § 3.960) certain ratings that have been 464 (1964); and VAOGCPREC 16–89).
is located with the regulations regarding ‘‘continuously in force for twenty or The legislative intent behind applying a
pension. more years.’’ Therefore, proposed retroactive award to form the 20-year
protection should apply as well to the Proposed paragraph (c)(2) states the history be reviewed to ascertain whether the
regulatory 5-year protection because the second criterion that must be present recent examination is full and complete,
purpose of § 3.344 is similar to the before VA will reduce a stabilized including all special examinations indicated
purpose of § 110 in that both protections rating, which is that ‘‘[t]he evidence as a result of general examination and the
entire case history. [3] This applies to
support the economic and humane shows that it is reasonably certain that treatment of intercurrent diseases and
considerations noted above. Finally, the the material improvement will be exacerbations, including hospital reports,
proposed regulation provides explicit maintained under the ordinary bedside examinations, examinations by
protection to veterans, and is in keeping conditions of life.’’ This requirement is designated physicians, and examinations in
with our consistent treatment of the drawn directly from the seventh the absence of, or without taking full
three time periods set forth in current sentence of current § 3.344(a). advantage of, laboratory facilities and the
§§ 3.344, 3.951, and 3.957 in other We propose not to retain the second- cooperation of specialists in related lines. [4]
respects, as described in the other to-last sentence of current § 3.344(c), Examinations less full and complete than
paragraphs in this proposed rule. which states: ‘‘[The provisions of this those on which payments were authorized or
continued will not be used as a basis of
Section 5.171 Protection of 5-Year rule] do not apply to disabilities which
reduction. [5] Ratings on account of diseases
Stabilized Ratings have not become stabilized and are subject to temporary or episodic
likely to improve.’’ Proposed paragraph improvement, e.g., manic depressive or other
Proposed § 5.171 is derived from (c) clearly states that this rule applies to psychotic reaction, epilepsy, psychoneurotic
current § 3.344. Proposed paragraph (a) the reduction of stabilized ratings. The reaction, arteriosclerotic heart disease,
restates in plain language the first term ‘‘stabilized ratings’’ is clearly bronchial asthma, gastric or duodenal ulcer,
sentence of current § 3.344(a). Proposed defined in proposed paragraph (b), and many skin diseases, etc., will not be reduced
paragraph (b) is primarily derived from does ‘‘not apply to disabilities which on any one examination, except in those
the first sentence of current § 3.344(c), have not become stabilized.’’ Therefore, instances where all the evidence of record
which states: ‘‘The provisions of clearly warrants the conclusion that
the second-to-last sentence of current
paragraphs (a) and (b) of this section sustained improvement has been
§ 3.344(c) is unnecessary. demonstrated. [6] Ratings on account of
apply to ratings which have continued Proposed paragraph (d) is derived
for long periods at the same level (5 diseases which become comparatively
from current § 3.344(a). In the current symptom free (findings absent) after
years or more).’’ Proposed paragraph (b) regulation, paragraph (a) contains ten prolonged rest, e.g. residuals of phlebitis,
rephrases the current rule, as follows: sentences, nine of which articulate arteriosclerotic heart disease, etc., will not be
‘‘For the purposes of this section, if a specific and distinct adjudicative rules. reduced on examinations reflecting the
disability has been rated at or above a Three of these sentences also contain results of bed rest. [7] Moreover, though
specific level for 5 years or more, VA lists of various disabilities that are material improvement in the physical or
will consider it to be stabilized at that affected by the specific rule articulated mental condition is clearly reflected the
specific level.’’ No substantive change is rating agency will consider whether the
in the sentence. Current paragraph (a) evidence makes it reasonably certain that the
intended. does not organize those ten sentences
Proposed paragraph (c) states two improvement will be maintained under the
either by associating similar concepts or ordinary conditions of life. [8] When syphilis
criteria that must be present before we
by setting the rules out in numbered of the central nervous system or alcoholic
will reduce a stabilized rating. The first
paragraphs. We apply both of these deterioration is diagnosed following a long
criterion is stated in proposed paragraph prior history of psychosis, psychoneurosis,
organizational tools in the proposed
(c)(1), and requires that there be ‘‘[a]n epilepsy, or the like, it is rarely possible to
rule, in order to improve readability and
examination [that] shows sustainable exclude persistence, in masked form, of the
help users locate the parts of the
material improvement, * * * in the preceding innocently acquired
paragraph that apply to their particular
disability.’’ The requirement of manifestations. [9] Rating boards
‘‘material improvement’’ is based on the cases. encountering a change of diagnosis will
In essence, § 3.344(a) lists and exercise caution in the determination as to
third sentence of current § 3.344(c),
describes the evidence required by VA whether a change in diagnosis represents no
which states, ‘‘[r]eexaminations
to justify the reduction of a stabilized more than a progression of an earlier
disclosing improvement, physical or
rating. Hence, we propose to title the diagnosis, an error in prior diagnosis or
mental, in these disabilities will warrant
reduction in rating.’’ We propose to paragraph that restates most of the rules possibly a disease entity independent of the
contained in current § 3.344(a), ‘‘How service-connected disability. [10] When the
change ‘‘improvement’’ to ‘‘material new diagnosis reflects mental deficiency or
improvement.’’ ‘‘Material improvement’’ VA determines whether there has been
material improvement.’’ personality disorder only, the possibility of
is what is intended in current § 3.344(c), only temporary remission of a super-imposed
The proposed rule required
as evidenced by the use of the term psychiatric disease will be borne in mind.
‘‘material improvement’’ in paragraph significant reorganization of the current
(a) of the current regulation. Finally, rule. In order to show clearly what we
‘‘material improvement’’ is the standard have done, we have reproduced below At the outset, we note that, as
used to measure a protected or the current regulation, with numbers discussed above, sentence 1 of § 3.344(a)
stabilized rating in other similar before each of the 10 sentences. Then, is reflected in the proposed paragraph
regulations. See 38 CFR 3.327(b)(2)(ii) we have indicated how our proposed (a) and sentence 7 of § 3.344(a) is
(disability will not be subject to rule would dispose of each sentence of reflected in proposed paragraph (c)(2).
scheduled reexamination ‘‘[w]hen the the existing rule. Proposed paragraph (d)(1) is derived
findings and symptoms are shown by (a) Examination reports indicating from current § 3.344(a) sentences 2, 3,
examinations * * * and hospital improvement. [1] Rating agencies will handle and 4, which together emphasize the
reports to have persisted without cases affected by change of medical findings requirement that only a complete
material improvement for a period of 5 or diagnosis, so as to produce the greatest examination, including a review of the
degree of stability of disability evaluations
years or more’’); 38 CFR 3.343(a) full medical record, can serve as a basis
consistent with the laws and Department of
(‘‘[t]otal disability ratings * * * will not Veterans Affairs regulations governing for a reduction under this section. The
be reduced * * *. without examination disability compensation and pension. [2] It is items needed for a complete medical
showing material improvement in essential that the entire record of record are in the proposed rule. The list
physical or mental condition’’). examinations and the medical-industrial
includes all of the items in the current Proposed paragraph (d)(5) reflects the (‘‘The Court holds that the protection
rule. first, ninth, and tenth sentences of afforded by section 110 of title 38 of the
Proposed paragraph (d)(2) restates in current § 3.344(a), and references a United States Code applies to ratings for
plain language current § 3.344(a) similar rule, 38 CFR 4.13. Section 4.13 compensation purposes, whether or not
sentence 5, which states, ‘‘lists those states that in reevaluating a case based a veteran elects to receive a monetary
diseases that will not be reduced on any on a change in diagnosis, ‘‘The award.’’). Because 38 U.S.C. 110 applies
one examination, absent evidence repercussion upon a current rating of to both pension and compensation, we
showing sustained improvement.’’ The service connection when change is propose to include pension in proposed
list of diseases contained in the existing made of a previously assigned diagnosis paragraph (c).
rule is set off as indented ‘‘bullet or etiology must be kept in mind. The
Section 5.173 Protection Against
points,’’ to improve readability. In aim should be the reconciliation and
Reduction of Disability Ratings When
addition, we note that the term ‘‘manic continuance of the diagnosis or etiology
Revisions Are Made to the Schedule for
depressive’’ is no longer an accepted upon which service connection for the
Rating Disabilities
term in the psychiatric community. It disability had been granted.’’ Section
has been replaced by the term ‘‘Bipolar 4.13 is similar to § 3.344(a) sentence 1, Proposed § 5.173 is derived from
Disorders.’’ See American Psychiatric but the language of § 4.13 more clearly current §§ 3.951 and 3.952. Section
Association, Diagnostic and Statistical places emphasis on the protection of the 3.951(a) states that VA will not reduce
Manual of Mental Disorders, 382–401 existing rating. Therefore, we explicitly any disability rating in effect on the
(4th ed. 2000). We therefore propose to require consideration of the part 4 rule effective date of a revision of the
use the term ‘‘Bipolar Disorders’’ when VA is confronted with evidence of applicable Schedule for Rating
instead of using ‘‘manic depressive.’’ In a change in diagnosis. Disabilities, based on such revisions,
addition, we note that the term Proposed paragraph (d)(6) restates unless medical evidence establishes that
‘‘psychoneurotic reaction’’ is no longer without alteration current § 3.344(a) the rated disability has actually
sentence 8. improved. Current § 3.952 applies that
an accepted term in the psychiatric
Proposed paragraph (e) restates, in protection, with some modification, to
community. It has been replaced by the
plain language, current § 3.344(b). We ratings assigned under the Schedule of
term ‘‘Anxiety Disorders.’’ See
note that the current rule requires VA to Disability Ratings, 1925, which were the
American Psychiatric Association,
cite ‘‘the former diagnosis with the new basis of compensation on April 1, 1946,
Diagnostic and Statistical Manual of
diagnosis in parentheses,’’ whereas the when the current Schedule of Disability
Mental Disorders, 429–484 (4th ed.
proposed rule would require VA to cite Ratings took effect. Proposed § 5.173
2000). We therefore propose to use the
‘‘the former diagnosis with the new combines the general rule in current
term ‘‘Anxiety Disorders’’ instead of
diagnosis, if any, in parentheses’’ § 3.951(a) with the specific rule in
using ‘‘psychoneurotic reaction.’’
(emphasis added). This change clarifies current § 3.952, into a single regulation
The intent behind sentence 5 of
that proposed paragraph (e) applies to titled, ‘‘Protection against reduction of
§ 3.344(a) is not that every single piece
any basis for reduction, not just to disability ratings when revisions are
of evidence of record clearly warrants
reductions based on a changed made to the Schedule for Rating
the conclusion that sustained
diagnosis. Disabilities.’’ At the end of the proposed
improvement has been demonstrated.
regulation, we cross-reference proposed
Such a literal interpretation would lead Section 5.172 Protection of Continuous § 5.176, the regulation that describes the
to an absurd result because in a case 20-Year Ratings process required before reducing a
where a rating has been in effect for 8 Proposed § 5.172 is based on current rating.
years, the evidence from 6–8 years § 3.951(b), which protects disability Proposed paragraph (a) restates in
would not show sustained ratings and ratings of permanent and plain language the general rule in
improvement; only more recent total disability for pension purposes that current § 3.951(a), as follows: ‘‘VA will
evidence would show sustained have been in effect for at least 20 years. not reduce a disability rating in effect on
improvement. Sentence 5 uses ‘‘all’’ to Proposed paragraph (a) restates in the effective date of a revision of the
refer to the evidentiary record as a plain language the protection in current applicable Schedule for Rating
whole. We propose to not include the § 3.951(b) afforded to disabilities rated Disabilities unless medical evidence
word ‘‘all’’ in paragraph (d) to clarify for periods in which the beneficiary was establishes that the rated disability has
that VA does not intend that every receiving compensation. It would not actually improved, except when the
single piece of evidence of record must include the phrase ‘‘under laws rating was assigned under the 1925
clearly warrant the conclusion that administered by the Department of Schedule of Disability Ratings (as
sustained improvement has been Veterans Affairs’’ because there is no provided in paragraph (b) of this
demonstrated, but rather that the ambiguity concerning whether this section).’’
evidentiary record as a whole must regulation applies to ratings under VA Proposed paragraph (b) of § 5.173
clearly warrant such a conclusion. regulations. restates in plain language the
Proposed paragraph (d)(3) restates in Proposed paragraph (b) restates in protections afforded under current
plain language current § 3.344(a) plain language the current protection § 3.952. These changes are meant to
sentence 6. afforded in current § 3.951(b) to a rating make the rules easier to follow; no
Proposed (d)(4) provides a statement of permanent total disability for pension substantive changes are intended.
of VA’s policy as to when it will find purposes.
‘‘material improvement’’ to exist, as Proposed paragraph (c) states that the Section 5.174 Protection of
follows: ‘‘(4) Material improvement will 20-year protection against reduction Entitlement to Benefits Established
be held to exist only where, after full applies ‘‘whether or not the veteran Before 1959
compliance with the procedure outlined elects to receive disability compensation Proposed § 5.174 is based on current
in this paragraph (d), the medical record or pension during all or any part of the § 3.953. We propose not to include
clearly demonstrates that the disability 20-year period.’’ This additional current § 3.953(b), which refers to
does not meet the requirements for the language reflects the holding of Salgado emergency officers’ retirement pay
currently assigned disability rating.’’ v. Brown, 4 Vet. App. 316, 320 (1993) payable to veterans of World War I. We
believe it is very unlikely that VA will date of notice to the beneficiary of the final initial and final regulatory flexibility
receive any more claims for this benefit. rating action expires. analysis requirements of sections 603
However, if such a claim were to be We propose to clarify in § 5.176(c) and 604.
received, Section 11, Public Law 85–857 that if no evidence is received within 60 Executive Order 12866
would be used to adjudicate the claim. days, or if evidence is received that does
not demonstrate that the proposed Executive Order 12866 directs
Section 5.175 Protection or Severance agencies to assess all costs and benefits
of Service Connection action should not be taken, VA will
notify the beneficiary that VA is of available regulatory alternatives and,
Proposed § 5.175 is derived from severing service connection or reducing when regulation is necessary, to select
current §§ 3.957 and 3.105(d). Proposed or discontinuing the benefit. regulatory approaches that maximize
§ 5.175(a) incorporates current § 3.957, net benefits (including potential
Section 5.177 Effective Dates for economic, environmental, public health
which states that service connection for
Severing Service Connection or and safety, and other advantages;
disability or death may be protected if
Discontinuing or Reducing Benefit distributive impacts; and equity). The
it has been in effect for 10 years or more.
Payments Executive Order classifies a ‘‘significant
Such a rating may not be severed unless
any of the following are shown: (1) The Proposed § 5.177 contains the regulatory action,’’ requiring review by
original grant was obtained through effective date provisions related to the Office of Management and Budget
fraud; or, (2) military records clearly severance of service connection and (OMB) unless OMB waives such review,
show that the person identified as a reduction or discontinuance of benefits. as any regulatory action that is likely to
veteran did not have the requisite It is derived from various provisions of result in a rule that may: (1) Have an
qualifying service; or, (3) military current § 3.105. We propose in annual effect on the economy of $100
records clearly show that the veteran’s paragraph (a) to restate the provisions million or more or adversely affect in a
discharge from service was a bar to found in the introductory paragraph of material way the economy, a sector of
service connection. See 38 CFR 3.12. We § 3.105 regarding effective dates for the economy, productivity, competition,
would include the current rule in the reductions or discontinuances of jobs, the environment, public health or
provision governing severance of service suspended awards. We propose in safety, or State, local, or tribal
connection because the rule advises paragraph (c) to list the three exceptions governments or communities; (2) create
claimants of circumstances when a to § 5.177, which are derived from the a serious inconsistency or otherwise
protected rating may be severed. introductory paragraph of § 3.105 and interfere with an action taken or
current § 3.500(b). We propose not to planned by another agency; (3)
Proposed § 5.175(b) provides that materially alter the budgetary impact of
severance of service connection may include the exception for cases where
the award of service connection was entitlements, grants, user fees, or loan
also occur when evidence establishes programs or the rights and obligations of
that it is clearly and unmistakably ‘‘clearly illegal’’ because such cases
would properly fall within § 3.105 and recipients thereof; or (4) raise novel
erroneous (the burden of proof being legal or policy issues arising out of legal
upon VA), subject to §§ 5.152 and 5.176. proposed § 5.177(d).
We propose in paragraphs (d) through mandates, the President’s priorities, or
This paragraph further provides that a the principles set forth in the Executive
change in medical diagnosis may be a (i), to state the specific type of benefit
that is the subject of the particular Order.
basis for severing service connection if The economic, interagency,
the examining physician or physicians effective date rule and to explain when
the benefit will be reduced, stopped, or budgetary, legal, and policy
or other proper medical authority implications of this proposed rule have
certifies that, in light of all accumulated severed. These effective date provisions
are from paragraphs (c) through (h) of been examined, and it has been
evidence, the diagnosis that was the determined to be a significant regulatory
basis of the award is clearly erroneous. the current version of § 3.105.
action under the Executive Order
That certification must be accompanied Endnote Regarding Amendatory because it is likely to result in a rule that
by a summary of the facts, findings, and Language may raise novel legal or policy issues
reasons supporting the conclusion that We intend to ultimately remove part arising out of legal mandates, the
the diagnosis is erroneous. 3 entirely, but we are not including President’s priorities, or the principles
Section 5.176 Due Process Procedures amendatory language to accomplish that set forth in the Executive Order.
for Severing Service Connection or at this time. VA will provide public
Unfunded Mandates
Reducing or Discontinuing notice before removing part 3.
Compensation Benefits The Unfunded Mandates Reform Act
Paperwork Reduction Act of 1995 requires, at 2 U.S.C. 1532, that
Proposed § 5.176 re-states current This document contains no provisions agencies prepare an assessment of
§ 3.105(d), (e). Current § 3.105(d) and (e) constituting a new collection of anticipated costs and benefits before
state that a claimant has 60 days from information under the Paperwork issuing any rule that may result in an
the date of the notice of a proposed Reduction Act (44 U.S.C. 3501–3521). expenditure by State, local, and tribal
severance of service connection or governments, in the aggregate, or by the
reduction or discontinuance of benefits Regulatory Flexibility Act
private sector of $100 million or more
in which to submit evidence showing The Secretary hereby certifies that (adjusted annually for inflation) in any
the proposed action should not be this regulatory amendment will not given year. This proposed rule would
taken. The last sentence of both current have a significant economic impact on have no such effect on State, local, and
§ 3.105(d) and current § 3.105(e) states a substantial number of small entities as tribal governments, or the private sector.
that they are defined in the Regulatory

Flexibility Act (RFA), 5 U.S.C. 601–612. Catalog of Federal Domestic Assistance
[i]f additional evidence is not received Numbers and Titles
within that period, final rating action will be This amendment would not
taken and the award will be reduced or significantly impact any small entities. The Catalog of Federal Domestic
discontinued * * * effective the last day of Therefore, pursuant to 5 U.S.C. 605(b), Assistance program numbers and titles
the month in which a 60-day period from the this amendment is exempt from the for this proposal are 64.100,
Automobiles and Adaptive Equipment 5.152 Effective dates based on change of (2) Paragraph (a)(1) of this section
for Certain Disabled Veterans and law or VA issue. merely concerns the method by which
Members of the Armed Forces; 64.101, 5.153 Effective date of awards based on written statements, evidence, or
Burial Expenses Allowance for receipt of evidence prior to end of appeal information is submitted to VA.
period.
Veterans; 64.102, Compensation for Requirements regarding the content of
5.154–5.159 [Reserved]
Service-Connected Deaths for Veterans’ the submission must still be met.
Dependents; 64.104, Pension for Non- General Rules on Revision of Decisions (b) VA action following submission of
Service Connected Disability for 5.160 Binding effect of VA decisions. statements, evidence, or information.
Veterans; 64.105, Pension to Veterans 5.161 Review of benefit claims decisions. Except as otherwise provided, after a
Surviving Spouses, and Children; 5.162 Revision of decisions based on clear beneficiary or his or her fiduciary or
64.106, Specially Adapted Housing for and unmistakable error (CUE). authorized representative provides VA
Disabled Veterans; 64.109, Veterans 5.163 Revision of decisions based on with a statement, evidence, or
Compensation for Service-Connected difference of opinion. information that affects entitlement to
5.164 Effective dates for revision of benefits, either orally or in writing, VA
Disability; 64.110, Veterans Dependency decisions based on difference of opinion.
and Indemnity Compensation for 5.165 Effective dates for reduction or
may take action affecting the
Service-Connected Death; 64.115, discontinuance of awards based on error. beneficiary’s entitlement to benefits
Veterans Information and Assistance; 5.166 New and material evidence based on based upon the statement, evidence, or
and 64.127, Monthly Allowance for service department records. information.
Children of Vietnam Veterans Born with 5.167–5.169 [Reserved] (c) Notice and documentation or oral
Spina Bifida. statements. Except as provided in
General Rules on Protection or Reduction of
Existing Ratings
paragraph (d) of this section, VA will
List of Subjects in 38 CFR Part 5 not take action based on oral statements
5.170 Calculation of 5-year, 10-year, and unless the VA employee receiving the
Administrative practice and 20-year protection periods.
procedure, Claims, Disability benefits, information meets the following
5.171 Protection of 5-year stabilized ratings.
Pensions, Veterans. 5.172 Protection of continuous 20-year conditions:
ratings. (1) During the conversation in which
Approved: February 8, 2007.
5.173 Protection against reduction of the beneficiary, representative, or
Gordon H. Mansfield, fiduciary provides the statement, the VA
disability ratings when revisions are
Deputy Secretary of Veterans Affairs. made to the Schedule for Rating employee:
For the reasons set out in the Disabilities. (i) Identifies himself or herself as a
preamble, VA proposes to further 5.174 Protection of entitlement to benefits VA employee who is authorized to
amend 38 CFR part 5, as proposed to be established before 1959. receive the statement (this means that
added at 69 FR 4832, January 30, 2004, 5.175 Protection or severance of service the VA employee must be authorized to
by adding subpart C to read as follows: connection. take actions under §§ 2.3 or 3.100 of this
5.176 Due process procedures for severing
service connection or reducing or
chapter);
PART 5—COMPENSATION, PENSION, (ii) Verifies the identity of the
discontinuing compensation benefits.
BURIAL, AND RELATED BENEFITS provider as the beneficiary or his or her
5.177 Effective dates for severing service
connection or discontinuing or reducing fiduciary or authorized representative
Subpart C—Adjudicative Process, by obtaining specific information about
benefit payments.
General 5.178–5.179 [Reserved] the beneficiary that is contained in the
General Evidence Requirements Authority: 38 U.S.C. 501(a) and as noted in beneficiary’s VA records, such as Social
specific sections. Security number, date of birth, branch
Sec. of military service, dates of military
5.130 Submission of statements, evidence,
or information affecting entitlement to
Subpart C—Adjudicative Process, service, or other information; and
benefits. General (iii) Informs the provider that the
5.131 Applications, claims, and exchange of statement may be used to calculate
General Evidence Requirements benefit amounts; and
evidence with Social Security
Administration (SSA)—death benefits. § 5.130 Submission of statements, (2) During or following the
5.132 Claims, statements, evidence, or evidence, or information affecting conversation in which the beneficiary,
information filed abroad; authentication entitlement to benefits. representative, or fiduciary provides the
of documents from foreign countries. statement, the VA employee documents
5.133 Information VA may request from (a) Statement of VA policy concerning in the beneficiary’s VA record all of the
financial institutions. submission of written statements, following:
5.134 Will VA accept a signature by mark evidence, or information. (1) It is VA’s (i) The specific statement provided.
or thumbprint? general policy to allow submission of (ii) The date such statement was
5.135 Statements certified or under oath or statements, evidence, or information by
affirmation. provided.
e-mail, facsimile (fax) machine, or other (iii) The identity of the provider.
5.136–5.139 [Reserved]
electronic means, unless a VA (iv) The steps taken to verify the
Evidence Requirements for Former Prisoners regulation, form, or directive expressly identity of the provider as being the
of War (POWS) requires a different method of beneficiary or his or her fiduciary or
5.140 Determining former prisoner of war submission (for example, where a VA authorized representative.
status. form directs claimants to submit certain (v) The statement of the employee that
5.141 Medical evidence for former documents by regular mail or hand the provider was informed that the
prisoners’ of war compensation claims. delivery). This policy does not apply to statement may be used for the purpose
5.142–5.149 [Reserved] the submission of a claim, Notice of of calculating benefits amounts.
General Effective Dates for Awards Disagreement, Substantive Appeal, or (d) Exceptions to paragraph (c) notice
5.150 General effective dates for awards or any other submissions or filing and documentation requirements.
increased benefits. requirements covered in parts 19 and 20 Paragraph (c) of this section does not
5.151 Date of receipt. of this chapter. apply to the following:
(1) Oral statements made at a VA that an official listed in paragraph (d) of beneficiary if such evidence is necessary
hearing; and this section verifies that the foreign to determine whether such person has
(2) Oral statements recorded by VA document, including each signature, failed to comply with a statute,
personnel in reports of medical stamp, and seal appearing on it, is regulation, rule, or order. This request,
treatment or examination. genuine and has not been altered. however, must be made through a
(Authority: 38 U.S.C. 501(a)) (c) Authentication of certain foreign subpoena. (A subpoena is a legal
documents not required. VA does not document commanding an individual or
§ 5.131 Applications, claims, and require authentication of the following organization to provide specified
exchange of evidence with Social Security types of foreign documents: evidence to the issuer of the subpoena.
Administration (SSA)—death benefits. (1) Documents approved by the See § 2.2 of this chapter for information
(a) Dual-purpose SSA and VA Deputy Minister of Veterans Affairs for on VA’s authority to issue subpoenas.)
application forms. A claim for death the Department of Veterans Affairs, Before the date VA serves a subpoena on
benefits received by SSA on a form Ottawa, Canada. a financial institution, VA must:
jointly prescribed by VA and SSA (2) Documents bearing the signature (1) Serve or mail a copy of the
claiming such benefits is considered to and seal of an officer authorized to subpoena to the beneficiary; together
be a claim for VA death benefits administer oaths for general purposes. with
(including dependency and indemnity (3) Documents signed before a VA (2) A written explanation of the
compensation (DIC), death pension, and employee authorized to administer purpose of VA’s request for financial
accrued benefits). The claim will be oaths under § 2.3 of this chapter. information and the procedure for
deemed to have been received by VA on (4) Affidavits prepared in the challenging the subpoena. See 12 U.S.C.
the date that it was received by SSA. Republic of the Philippines that are 3405.
(b) Evidence filed with SSA. Evidence certified by a VA representative who is (c) Limitations on use of information.
received by SSA in conjunction with a located there and who has the authority Unless permitted under the Right to
claim under paragraph (a) of this section to administer oaths. Financial Privacy Act (codified at 12
is considered received by VA on the (5) Copies of public or church records U.S.C. 3401, et seq.), VA may not:
date that SSA received the evidence. from any foreign country used to (1) Use information obtained from a
(c) SSA request of copies or establish birth, adoption, marriage, financial institution for any purpose
certifications of evidence filed with VA. annulment, divorce, or death, provided other than the administration of VA
At SSA’s request, VA will furnish that the documents have the signature benefits programs; or
copies or certifications of evidence that and seal of the custodian of these (2) Share this information with any
a claimant has filed with VA in support records and there is no contrary other individual, group, or government
of a claim for VA death benefits, evidence of record that tends to cast entity.
provided that the release of this doubt on the correctness of the (Authority: 12 U.S.C. 3401, 3405, 3412, 3413;
evidence fully complies with all documents. 38 U.S.C. 501, 5711, 5319)
requirements in any applicable laws and (d) Authentication of foreign
regulations that protect the documents required. Foreign documents § 5.134 Will VA accept a signature by mark
confidentiality of VA records. not listed in paragraph (c) of this section or thumbprint?
(Authority: 38 U.S.C. 501(a), 5101(b)(1), must be authenticated by: VA will accept signatures by mark or
5105) (1) An officer of the Department of thumbprint if:
State authorized to authenticate (a) They are witnessed by two people
§ 5.132 Claims, statements, evidence, or documents; or who sign their names and give their
information filed abroad; authentication of (2) The Consul of a friendly addresses, or
documents from foreign countries. government whose signature and seal is (b) They are witnessed by an
(a) Claims and evidence filed abroad. verified by the Department of State. accredited agent, attorney, or service
A claim, or statements, information, or (e) Photocopies of foreign documents. organization representative, or
evidence in support of a claim, may be VA will accept photocopies of any of (c) They are certified by a notary
submitted to a Department of State the foreign documents described in public or any other person having the
representative in a foreign country. Any paragraphs (c) and (d) of this section if authority to administer oaths for general
claim, statement, information, or VA determines that the photocopies purposes, or
evidence filed in a foreign country will satisfy the requirements of § 5.180. (d) They are certified by a VA
be considered received by VA on the (Authority: 38 U.S.C. 501(a)) employee who has been delegated
date that it was received by the authority by the Secretary under 38 CFR
Department of State representative in § 5.133 Information VA may request from 2.3.
that foreign country. financial institutions.
(Authority: 38 U.S.C. 5101)
(b) Authentication of foreign (a) Names and addresses. If VA needs
documents—generally. Foreign to verify a person’s correct name or § 5.135 Statements certified or under oath
documents listed in paragraph (c) of this address, VA may request this or affirmation.
section do not require authentication. information from a financial institution, (a) All oral testimony presented by
All other foreign documents must be such as a bank, savings and loan claimants and witnesses on their behalf
authenticated as specified in paragraph association, trust company, or credit will be under oath or affirmation (see
(d) of this section. ‘‘Foreign documents’’ union. In its request, VA must certify § 5.82(d)(2)).
means documents that are signed under that the name or address is necessary in (b) Any documentary evidence or
oath or affirmation in the presence of an order to administer properly its benefit written assertion of fact submitted by
official in a foreign country. Examples programs and cannot be located by a the claimant or on his or her behalf for
of foreign documents include affidavits, reasonable search of VA records. the purpose of establishing a claim for
marriage certificates, and birth (b) Financial information. VA may ask service connection should be certified
certificates that have been created, a financial institution to provide or under oath or affirmation. VA may
executed, or validated by a foreign financial records of a current or former consider such a submission that is not
government. ‘‘Authentication’’ means claimant or a current or former certified or under oath or affirmation or
may require certification, oath, or allegations exist that the service member (4) The existence of signs and
affirmation if considered necessary to violated the laws of a foreign symptoms consistent with a claimed
establish the reliability of a material government. A period of detention or disability following the former POW’s
document. Documentary evidence internment by a foreign government for release from detention or internment.
includes records, examination reports, an alleged violation of its laws cannot (d) The absence of clinical records. If
and transcripts material to the issue be used to establish POW status, unless disability compensation is claimed by a
received by VA from State, county, or the charges were a sham intended to former POW, VA will not consider as
municipal governments, recognized make it appear that the detention or determinative the lack of history or
private institutions, or contract internment was proper. findings in clinical records made upon
hospitals. (d) Line of duty. VA will consider that the claimant’s return to United States
(Authority: 38 U.S.C. 501) a serviceperson was forcibly detained or control.
interned in line of duty unless the (e) Disabilities first reported after
§§ 5.136 through 5.139 [Reserved] evidence of record discloses that discharge. If any disability is first
Evidence Requirements for Former forcible detention or internment was the reported after discharge, especially if
Prisoners of War (POWs) proximate result of the service member’s the claimed disability is poorly defined
own willful misconduct. See § 5.660 and not obviously of intercurrent origin,
§ 5.140 Determining former prisoner of war (defining line of duty) and § 5.661 VA will determine whether the claimed
status. (defining willful misconduct). disability is etiologically related to the
(a) Basis for determination. The Cross-reference: See § 5.611 POW experience. VA will consider the
definition of ‘‘hostile force’’ set forth in (concerning POW status and Philippine circumstances of the claimant’s
paragraph (3) of the definition of service). detention or internment, the duration of
‘‘Former prisoner of war (or former (Authority: 38 U.S.C. 101(32)) detention or internment, and the
POW)’’ in § 5.1 applies to this section. pertinent medical principles.
VA will accept a finding by the § 5.141 Medical evidence for former
(f) Examination requirement. If
appropriate service department that a prisoners’ of war compensation claims.
service connection for disabilities
person was a POW during a period of (a) Injuries and other conditions of a claimed by a former POW cannot be
war when detention or internment was former prisoner of war (POW). As soon established otherwise, VA will provide
by an enemy government or its agents, as sufficient evidence for a rating is the claimant a complete medical
or a hostile force, except when a available, VA will rate injuries or other examination.
reasonable basis exists for questioning conditions of a former POW that Cross-references: Definition of
that finding. The Director of the obviously were incurred in service, prisoner of war. See § 5.1. Presumptive
Compensation and Pension Service without awaiting receipt of the service connection for diseases specific
must approve all regional office claimant’s medical and other service to prisoners of war. See § 5.264(c).
determinations not based on service records.
(b) Statements by a former POW. VA (Authority: 38 U.S.C. 1154)
department findings. VA will apply
paragraphs (b), (c), and (d) of this will presume true a statement by a §§ 5.142–5.149 [Reserved]
section and make its own determination former POW that an injury or disease
of POW status if: was incurred or aggravated during (or General Effective Dates for Awards
(1) The detention or internment immediately before) detention or
§ 5.150 General effective dates for awards
occurred during a period other than a internment if the statement is consistent or increased benefits.
period of war; or with the circumstances, conditions, or
(2) If a service department has not hardships of detention or internment (or (a) General rule. Except as otherwise
made a finding; or is consistent with the former POW’s provided, the effective date of an award
(3) A reasonable basis exists for situation immediately before detention of pension, compensation, dependency
questioning a service-department or internment). The presumption of and indemnity compensation, or
finding. truth as to such a statement is rebutted monetary allowance under 38 U.S.C.
(b) Circumstances of detention or by clear and convincing evidence to the chapter 18 for an individual who is a
internment. To be considered a former contrary. See also § 3.304(f)(2) child of a Vietnam veteran, based on an
POW, a serviceperson must have been (pertaining to post-traumatic stress original claim, a claim reopened after
forcibly detained or interned under disorder claimed by a former POW). final disallowance, or a claim for
circumstances comparable to those (c) Evidence from fellow service increase, will be the later of:
under which persons generally have members. Evidence from fellow service (1) The date of receipt of the claim for
been forcibly detained or interned by members may be used to support an the benefit awarded; or
enemy governments during periods of allegation of incurrence or aggravation (2) The date entitlement arose. For the
war. Such circumstances include, but of an injury or disease during detention purposes of this part, ‘‘date entitlement
are not limited to, physical hardships or or internment. In evaluating evidence arose’’ means the date shown by the
abuse, psychological hardships or from fellow service members that relates evidence to be the date that the claimant
abuse, malnutrition, and unsanitary to a claim for disability compensation first met the requirements for the benefit
conditions. In the absence of evidence by a former POW, VA will take into awarded. VA will assume that
to the contrary, VA will consider that account the fellow service member’s entitlement arose before the date of
each individual member of a particular statements, including statements receipt of the claim unless the evidence
group of detainees or internees regarding any of the following: shows that entitlement arose after that
experienced the same circumstances as (1) The former POW’s physical date.
those experienced by the group. condition before capture; (b) Location of other effective-date
(c) Reason for detention or (2) The circumstances during the provisions in part 5. The following chart
internment. For the purposes of former POW’s detention or internment; is intended to provide assistance in
determining POW status, VA will not (3) The changes in the former POW’s locating various other effective-date
consider the reason a service member physical condition following release provisions in this part. It is provided for
was detained or interned, except where from detention or internment; or informational use only.
Effective date provision Part 5 location
(1) SUBPART B—SERVICE REQUIREMENTS FOR VETERANS
(i) Individuals and groups designated by the Secretary of Defense as having performed active military service ............... § 5.27(c).
(ii) Effect of discharge upgrades by Armed Forces boards for the correction of military records (10 U.S.C. 1552) on eli- § 5.34(d).
gibility for VA benefits.
(iii) Effect of discharge upgrades by Armed Forces discharge review boards (10 U.S.C. 1553) on eligibility for VA bene- § 5.35(e).
fits.
(2) SUBPART C—ADJUDICATIVE PROCESS, GENERAL
(i) Filing a claim for death benefits ........................................................................................................................................ § 5.53(c)(5).

(ii) New and material evidence .............................................................................................................................................. § 5.56(b).
(iii) Requirement to provide Social Security numbers ........................................................................................................... § 5.101(c), (d).
(iv) Effective dates based on change of law or VA issue ..................................................................................................... § 5.152.
(v) Effective date of awards based on receipt of evidence prior to end of appeal period .................................................... § 5.153.
(vi) Revision of decisions based on clear and unmistakable error (CUE) ............................................................................ § 5.162(b).
(vii) Effective dates for revision of decisions based on difference of opinion under § 5.163 ................................................ § 5.164.
(viii) Effective dates for reduction or discontinuance of awards based on error ................................................................... § 5.165.
(ix) New and material evidence based on service department records ................................................................................ § 5.166(c), (d).
(x) Effective dates for severing service connection or discontinuing or reducing benefit payments .................................... § 5.177.
(3) SUBPART D—DEPENDENTS AND SURVIVORS
(i) Evidence of dependency-reduction or discontinuance of VA benefits ............................................................................. § 5.181(c).

(ii) Effective date for additional benefits based on the existence of a dependent ................................................................ § 5.183.
(iii) Effective date of reduction or discontinuance of VA benefits due to the death of a beneficiary’s dependent ............... § 5.184.
(iv) Effective date of reduction or discontinuance of improved pension, compensation, or dependency and indemnity § 5.197.
compensation due to marriage or remarriage.
(v) Effective date of reduction or discontinuance of improved pension, compensation, or dependency and indemnity § 5.198.
compensation due to divorce or annulment.
(vi) Effective date of discontinuance of VA benefits to a surviving spouse who holds himself, or herself, out as the § 5.204.
spouse of another person.
(vii) Effective date of resumption of benefits to a surviving spouse due to termination of a remarriage ............................. § 5.205.
(viii) Effective date of resumption of benefits to a surviving spouse who stops holding himself, or herself, out as the § 5.206.
spouse of another.
(ix) Effective date of award of pension or dependency and indemnity compensation to, or based on the existence of, a § 5.230.
child born after the veteran’s death.
(x) Effective date of reduction or discontinuance—child reaches age 18 or 23 ................................................................... § 5.231.
(xi) Effective date of reduction or discontinuance—terminated adoptions ............................................................................ § 5.232.
(xii) Effective date of reduction or discontinuance—stepchild no longer a member of the veteran’s household ................. § 5.233.
(xiii) Effective date of an award, reduction, or discontinuance of benefits based on child status due to permanent inca- § 5.234.
pacity for self support.
(xiv) Effective date of an award of benefits due to termination of a child’s marriage .......................................................... § 5.235.
(4) SUBPART E—CLAIMS FOR SERVICE CONNECTION AND DISABILITY COMPENSATION
(i) Effective dates—award of disability compensation based on direct service connection ................................................. § 5.310.
(ii) Effective dates—award of disability compensation based on presumptive service connection ...................................... § 5.311.
(iii) Effective dates—increased compensation due to increased disability ........................................................................... § 5.312.
(iv) Effective dates—reduction or severance of service-connected disability compensation ............................................... § 5.313.
(v) Effective dates—discontinuance of total disability rating based on individual unemployability ....................................... § 5.314.
(vi) Effective dates—reduction or discontinuance of additional disability compensation based on parental dependency ... § 5.315.
(vii) Effective dates—award of additional disability compensation based on decrease in the net worth of dependent par- § 5.316.
ents.
(viii) Effective dates—Special monthly compensation under §§ 5.331 through 5.332 .......................................................... § 5.333.
(ix) Effective dates—Additional compensation for aid and attendance payable for a veteran’s spouse .............................. § 5.334.
(x) Effective date: Tuberculosis, special compensation for arrested .................................................................................... § 5.349.
(xi) Benefits under 38 U.S.C. 1151(a) for additional disability or death due to hospitalization, medical or surgical treat- § 5.352(a)(2).
ment, examinations, or vocational rehabilitation training.
(xii) Effective dates for disability or death due to hospitalization, medical or surgical treatment, examinations, or voca- § 5.353.
tional rehabilitation training.
(5) SUBPART F—NONSERVICE-CONNECTED DISABILITY PENSIONS AND DEATH PENSIONS
(i) Permanent and total disability ratings for Improved Disability Pension purposes ............................................................ § 5.381(b)(2).
(ii) Effective dates for Improved Disability Pension ............................................................................................................... § 5.383.
(iii) Effective dates for awards of special monthly pension ................................................................................................... § 5.392.
(iv) Automatic adjustment of maximum annual pension rates .............................................................................................. § 5.401(a).
(v) Effective dates for Improved Pension awards based on a change in net worth ............................................................. § 5.415.
(vi) Effective dates for changes to Improved Pension payments due to a change in income ............................................. § 5.422.
(vii) Time limits to establish entitlement to Improved Pension or to increase the annual Improved Pension amount § 5.424(b), (c).
based on income.
(viii) Effective dates for Improved Death Pension ................................................................................................................. § 5.431.
(ix) Effective date of discontinuance of Improved Death Pension payments to a beneficiary no longer recognized as the § 5.433.
veteran’s surviving spouse.
(x) Award, or discontinuance of award, of Improved Death Pension to a surviving spouse where Improved Death Pen- § 5.434(b), (c).
sion payments to a child are involved.
(xi) Effective dates of improved pension elections ................................................................................................................ § 5.463.
(xii) Effective dates for section 306 and old-law pension reductions or discontinuances .................................................... § 5.477.
(6) SUBPART G—DEPENDENCY AND INDEMNITY COMPENSATION, DEATH COMPENSATION, ACCRUED BENEFITS, AND SPECIAL
RULES APPLICABLE UPON DEATH OF A BENEFICIARY
(i) Awards of dependency and indemnity compensation benefits to children when there is a retroactive award to a § 5.524(c).
school child.
(ii) Effective dates for DIC or death compensation awards .................................................................................................. § 5.567.
(iii) Effective dates for discontinuance of DIC or death compensation payments to a person no longer recognized as the § 5.568.
veteran’s surviving spouse.
(iv) Effective date for award, or termination of award, of DIC or death compensation to a surviving spouse where DIC § 5.569.
or death compensation payments to children are involved.
(v) Effective date for reduction in DIC—surviving spouses ................................................................................................... § 5.570.
(vi) Effective date for an award or increased rate based on amended income information—parents’ DIC ......................... § 5.571.
(vii) Effective date for reduction or discontinuance based on increased income—parents’ DIC .......................................... § 5.572.
(viii) Effective date for dependency and indemnity compensation rate adjustments when an additional dependent files § 5.573.
an application.
(ix) Effective dates of awards and discontinuances of special monthly dependency and indemnity compensation ........... § 5.574.
(7) SUBPART H—SPECIAL AND ANCILLARY BENEFITS FOR VETERANS, DEPENDENTS, AND SURVIVORS
(i) Medal of Honor pension .................................................................................................................................................... § 5.580(c).

(ii) Awards of VA benefits based on special acts or private laws ......................................................................................... § 5.581(d).
(iii) Special allowance payable under section 156 of Pub. L. 97–377 .................................................................................. § 5.588(f).
(iv) Effective dates of awards for certain disabled children of Vietnam veterans ................................................................. § 5.591.
(v) Clothing allowance ........................................................................................................................................................... § 5.606(e).
(8) SUBPART I—BENEFITS FOR CERTAIN FILIPINO VETERANS AND SURVIVORS
(i) Filipino veterans and their survivors: Effective dates for benefits at the full-dollar rate ................................................... § 5.614.
(ii) Filipino veterans and their survivors: Effective dates of reductions and discontinuances for benefits at the full-dollar § 5.618.
rate.
(9) SUBPART K—MATTERS AFFECTING THE RECEIPT OF BENEFITS
(i) Remission of forfeiture ...................................................................................................................................................... § 5.680(c)(2).

(ii) Effective dates—forfeiture ................................................................................................................................................ § 5.681.
(iii) Presidential pardon for offenses causing forfeiture ......................................................................................................... § 5.682(b), (d).
(iv) Renouncement of benefits ............................................................................................................................................... § 5.683(c), (e)(1)(ii).
(10) SUBPART L—PAYMENTS AND ADJUSTMENTS TO PAYMENTS
(i) Benefits paid to a child attending an approved educational institution ............................................................................ § 5.695(c)–(g).
(ii) General effective dates for reduction or discontinuance of benefits ................................................................................ § 5.705.
(iii) Eligibility verification reports ............................................................................................................................................ § 5.708(f).
(iv) Adjustment in benefits due to reduction or discontinuance of a benefit to another payee ............................................ § 5.710(b).
(v) Disappearance of veteran for 90 days or more ............................................................................................................... § 5.711(b)(2), (c)(2),
(d)(1).
(vi) Resumption of payments when a payee’s whereabouts become known ....................................................................... § 5.712.
(vii) Restriction on VA benefit payments to an alien located in enemy territory ................................................................... § 5.713.
(viii) Reduction of Improved Pension when a veteran is receiving domiciliary or nursing home care ................................. § 5.720(a)(4), (d).
(ix) Reduction of Section 306 Pension when a veteran is receiving hospital care ............................................................... § 5.721(a)(4), (d).
(x) Reduction of Old-Law Pension when a veteran is receiving hospital care ..................................................................... § 5.722(a)(4).
(xi) Reduction of Improved Pension when a veteran or surviving spouse is receiving Medicaid-covered nursing home § 5.723(b).
care.
(xii) Reduction of special monthly compensation involving aid and attendance when a veteran is receiving hospital care § 5.724(b), (e), (f).
(xiii) Reduction of special monthly pension involving aid and attendance for Improved Pension when a veteran is re- § 5.725(b), (d), (e).
ceiving hospital care.
(xiv) Reduction of special monthly pension involving aid and attendance for Old-Law Pension or Section 306 Pension § 5.726(b), (e).
when a veteran is receiving hospital care.
(xv) Resumption of Section 306 Pension and special monthly pension involving aid and attendance when a veteran is § 5.727(b), (e), (f).
discharged or released from hospital care.
(xvi) Resumption of Old-Law Pension and special monthly pension involving aid and attendance when a veteran is dis- § 5.728(b), (d), (e).
charged or released from hospital care.

(xvii) General effective dates for awarding, reducing, or discontinuing VA benefits because of an election ....................... § 5.743.
(xviii) Prohibition against receipt of active military service pay and VA benefits for the same period ................................. § 5.746(c), (d)(1).
(xix) Procedures for elections between VA benefits and FECA compensation .................................................................... § 5.752(b).
(xx) Effect of election of compensation under the Radiation Exposure Compensation Act of 1990 on payment of certain § 5.754(d).
VA benefits.
(xxi) Payment of multiple VA benefits to a surviving child based on the service of more than one veteran ....................... § 5.762(c)(6)(ii).
(xxii) Payment of dependents’ educational assistance (DEA) and VA pension or dependency and indemnity compensa- § 5.764(a)(3).
tion (DIC) for the same period.
(11) SUBPART M—APPORTIONMENTS TO DEPENDENTS AND PAYMENTS TO FIDUCIARIES AND INCARCERATED BENEFICIARIES
(i) Effective date of apportionment grant or increase ............................................................................................................ § 5.783.

(ii) Effective date of apportionment discontinuance or reduction .......................................................................................... § 5.784.
(iii) Determinations of incompetency ..................................................................................................................................... § 5.791(d).
(iv) Effective date after certification or when a beneficiary regains competency .................................................................. § 5.794.
(v) Payments upon reaching age of majority ........................................................................................................................ § 5.795(b).
(vi) Incarcerated beneficiaries—general provisions and definitions ...................................................................................... § 5.810(c).
(vii) Discontinuance of pension during incarceration ............................................................................................................. § 5.813(b)(2).
(viii) Apportionment where a primary beneficiary is incarcerated ......................................................................................... § 5.814(e).
(ix) Resumptions of disability compensation, dependency and indemnity compensation, or death compensation upon a § 5.815(a), (b)(1),
beneficiary’s release from incarceration. (c)(2).
(x) Resumptions of pension upon a beneficiary’s release from incarceration ...................................................................... § 5.816(b), (c)(1).
(Authority: 38 U.S.C. 501, 5110(a)) arose, but shall not be earlier than the because of a change in law or a
effective date of the act or Department of Veterans Affairs issue, or
§ 5.151 Date of receipt.
administrative issue. Where pension, because of a change in interpretation of
(a) General. The date of receipt of a compensation, dependency and a law or Department of Veterans Affairs
document, claim, information, or indemnity compensation, or a monetary issue, the payee will be notified at his
evidence is the date on which it was allowance under 38 U.S.C. chapter 18 or her latest address of record of the
received by VA, except as provided in for an individual who is a child of a contemplated action and furnished
paragraph (b) of this section, in specific Vietnam veteran is awarded or detailed reasons therefor, and will be
provisions for claims or evidence increased pursuant to a liberalizing law given 60 days for the presentation of
received in a foreign country by a or VA issue which became effective on additional evidence. If VA receives no
Department of State representative or after the date of its enactment or additional evidence within the 60-day
(§ 5.132(a)) or in the Social Security issuance, in order for a claimant to be period, or the evidence received does
Administration (§§ 5.131(a) or 5.131(b)), eligible for a retroactive payment under not demonstrate that the proposed
or in rules of the Department of Defense the provisions of this paragraph the action should not be taken, the award
relating to initial claims filed at or evidence must show that the claimant will be reduced or discontinued
before separation. met all eligibility criteria for the effective the last day of the month in
(b) Exception to date-of-receipt rule. liberalized benefit on the effective date which the 60-day period expired.
VA may establish, by notice published of the liberalizing law or VA issue and (Authority: 38 U.S.C. 5112(b)(6))
in the Federal Register, exceptions to that such eligibility existed
paragraph (a), using factors such as continuously from that date to the date § 5.153 Effective date of awards based on
postmark or the date the claimant of claim or administrative determination receipt of evidence prior to end of appeal
signed the correspondence, when VA period.
of entitlement. The provisions of this
determines that a natural or man-made paragraph are applicable to original and VA will consider information or
interference with the normal channels reopened claims as well as claims for evidence received before the expiration
through which VA ordinarily receives increase. of the period for initiating or perfecting
correspondence has resulted in one or (1) If a claim is reviewed on the an appeal to the Board, or before the
more VA regional offices experiencing initiative of VA within 1 year from the Board renders a decision (if a timely
extended delays in receipt of effective date of the law or VA issue, or appeal was filed), without regard to
documents, claims, information, or at the request of a claimant received whether the information or evidence is
evidence from claimants served by the within 1 year from that date, benefits ‘‘new and material.’’ An award of the
affected office or offices to an extent may be authorized from the effective benefit sought based on that information
that, if not addressed, would adversely date of the law or VA issue. or evidence is effective on the date
affect such claimants through no fault of (2) If a claim is reviewed on the prescribed by § 5.150.
their own. initiative of VA more than 1 year after (Authority: 38 U.S.C. 501)
(Authority: 38 U.S.C. 501(a), 512(a), 5110) the effective date of the law or VA issue,
§§ 5.154–5.159 [Reserved]
benefits may be authorized for a period
§ 5.152 Effective dates based on change of General Rules on Revision of Decisions
of 1 year prior to the date of
law or VA issue.
administrative determination of
(a) Effective date of award. Where § 5.160 Binding effect of VA decisions.
entitlement.
pension, compensation, dependency (3) If a claim is reviewed at the (a) General rule. A decision of a duly
and indemnity compensation, or a request of the claimant more than 1 year constituted rating agency or other
monetary allowance under 38 U.S.C. after the effective date of the law or VA agency of original jurisdiction shall be
chapter 18 for an individual who is a issue, benefits may be authorized for a binding on all field offices of the
child of a Vietnam veteran is awarded period of 1 year prior to the date of Department of Veterans Affairs as to
or increased pursuant to a liberalizing receipt of such request. conclusions based on the evidence on
law, or a liberalizing VA issue approved file at the time VA issues written
by the Secretary or by the Secretary’s (Authority: 38 U.S.C. 1822, 5110(g)) notification in accordance with 38
direction, the effective date of such (b) Reduction or discontinuance of U.S.C. 5104. A binding agency decision
award or increase shall be fixed in benefits. Where the reduction or shall not be subject to revision on the
accordance with the date entitlement discontinuance of an award is in order same factual basis except by duly
constituted appellate authorities or review under this section of the same grounds of CUE has the same effect as
except as provided in §§ 5.161, 5.162, decision. if the new decision had been made on
and 5.163 of this part. (c) The reviewer may conduct the date of the prior decision. For
(b) Particular issues. A decision made whatever development he or she effective dates for reductions or
by a Veterans Service Center on any one considers necessary to resolve any discontinuances, based on CUE, VA will
of the issues listed below is binding on disagreements in the Notice of apply § 5.165(c)(1). However, for
the VA Insurance Center, and vice versa, Disagreement, consistent with reductions or discontinuances based on
unless the decision was based on clear applicable law. This may include an CUE resulting from an act of
and unmistakable error. Absent clear attempt to obtain additional evidence or commission or omission by the
and unmistakable error, neither a the holding of an informal conference beneficiary or with the beneficiary’s
Veterans Service Center nor the VA with the claimant. Upon the request of knowledge, VA will apply § 5.165(b).
Insurance Center may change a decision the claimant, the reviewer will conduct (Authority: 38 U.S.C. 5109A)
of the other if doing so would involve a hearing under § 5.82.
applying the same criteria and be based (d) The reviewer may grant a benefit § 5.163 Revision of decisions based on
on the same facts. The issues to which sought in the claim notwithstanding difference of opinion.
this paragraph (b) applies are: § 5.163, but, except as provided in If the Veterans Service Center
(1) Line of duty; paragraph (e) of this section, may not Manager (VSCM) within an agency of
(2) Character of discharge; revise the decision in a manner that is original jurisdiction (AOJ) believes that
(3) Relationship; less advantageous to the claimant than revision of a previous AOJ decision (that
(4) Dependency; the decision under review. A review is not final and has not been the subject
(5) Domestic relations issues such as decision made under this section will of a Substantive Appeal) is warranted,
marriage, divorce, adoption and child include a summary of the evidence, a based on a difference of opinion, and
custody and support; citation to pertinent laws, a discussion that revision would lead to a more
(6) Homicide; and of how those laws affect the decision, favorable decision on the claim that was
(7) Findings of fact of death or and a summary of the reasons for the the subject of that previous decision, the
presumption of death. decision. VSCM will recommend such revision to
(e) Notwithstanding any other the Director of the Compensation and
(Authority: 38 U.S.C. 501) provisions of this section, the reviewer Pension Service of the Veterans Benefits
§ 5.161 Review of benefit claims decisions. may reverse or revise (even if Administration for a binding
disadvantageous to the claimant) prior determination.
(a) A claimant who has filed a timely decisions of an agency of original
Notice of Disagreement with a decision jurisdiction (including the decision
of an agency of original jurisdiction on being reviewed or any prior decision § 5.164 Effective dates for revision of
a benefit claim has a right to review of that has become final due to failure to decisions based on difference of opinion.
that decision under this section. The timely appeal) on the grounds of clear If a decision is revised based on
review will be conducted by a Veterans and unmistakable error (see § 5.162). difference of opinion under § 5.163, the
Service Center Manager or Decision (f) Review under this section does not effective date of the revision is the date
Review Officer, at VA’s discretion. An limit the appeal rights of a claimant. the benefits would have been paid if the
individual who did not participate in Unless a claimant withdraws his or her previous decision had been favorable.
the decision being reviewed will Notice of Disagreement as a result of
conduct this review. Only a decision (Authority: 38 U.S.C. 501, 5110)
this review process, VA will proceed
that has not yet become final (by with the traditional appellate process by § 5.165 Effective dates for reduction or
appellate decision or failure to timely issuing a Statement of the Case. discontinuance of awards based on error.
appeal) may be reviewed. Review under (g) This section applies to all claims (a) Scope. The rules in this section
this section will encompass only in which a Notice of Disagreement is apply when determining the proper
decisions with which the claimant has filed on or after June 1, 2001. effective date to assign for the reduction
expressed disagreement in the Notice of or discontinuance of VA benefits based
(Authority: 38 U.S.C. 5109A, 7105(d))
Disagreement. The reviewer will on error. This section does not apply to
consider all evidence of record and § 5.162 Revision of decisions based on a payment amount not authorized by a
applicable law, and will give no clear and unmistakable error (CUE). rating decision, such as a payment of an
deference to the decision being (a) General. In the absence of clear incorrect amount or a duplicative
reviewed. and unmistakable error (CUE), VA will payment. Such amounts are
(b) Unless the claimant has requested accept all final decisions as correct. overpayments, subject to recoupment.
review under this section with his or Where evidence establishes such CUE, a (b) Effective date of reduction or
her Notice of Disagreement, VA will, prior decision will be reversed or discontinuance based on beneficiary
upon receipt of the Notice of revised. Review to determine whether error. If an award was based on an act
Disagreement, notify the claimant in CUE exists in a case may be instituted of commission or omission by the
writing of his or her right to review by VA on its own motion or upon beneficiary or any act of omission or
under this section. To obtain such a request of the claimant. A request for commission with the beneficiary’s
review, the claimant must request it not revision of a VA decision based on CUE knowledge, VA will pay a reduced rate
later than 60 days after the date VA may be made at any time after that or discontinue benefits effective the
mails the notice. This 60-day time limit decision is made. latest of the following dates:
may not be extended. If the claimant Cross-reference: Explanation of what (1) The effective date of the award;
fails to request review under this section constitutes CUE and what does not. See (2) The date preceding the act of
not later than 60 days after the date VA § 20.1403 of this chapter. commission or omission; or
mails the notice, VA will proceed with (b) Effect of revision on benefits. For (3) The date entitlement to the benefit
the traditional appellate process by the purpose of granting benefits, a new ceased.
issuing a Statement of the Case. A decision that constitutes a reversal or (c) VA administrative error. (1)
claimant may not have more than one revision of a prior decision on the Effective date. Except as provided in
§ 5.177 (d) and (f), if an award was service department must be supported § 5.171 Protection of 5-year stabilized
based solely on administrative error or adequately by medical evidence. Where ratings.
an error in judgment by VA, VA will such records clearly support the (a) Purpose. VA will adjudicate cases
pay a reduced rate or discontinue assignment of a specific rating over a affected by change of medical findings
benefits effective the first of the month part or the entire period of time or diagnosis to produce the greatest
that follows the month for which VA involved, a retroactive rating will be degree of stability of disability ratings
last paid benefits. assigned accordingly, except as it may consistent with the laws and regulations
(2) Administrative error or an error in be affected by the filing date of the governing disability compensation and
judgment. Administrative errors or original claim. pension.
errors in judgment include: (b) Stabilized rating. For the purposes
(Authority: 38 U.S.C. 501(a))
(i) Overlooking facts; of this section, if a disability has been
(ii) Clerical errors; or §§ 5.167–5.169 [Reserved] rated at or above a specific level for 5
(iii) Failure to follow or properly years or more, VA will consider it to be
apply VA instructions, regulations, or General Rules on Protection or stabilized at that specific level.
statutes. Reduction of Existing Ratings (c) Material improvement. VA will not
(Authority: 38 U.S.C. 5112(b)(9) and (10)) § 5.170 Calculation of 5-year, 10-year, and reduce a stabilized rating unless there is
20-year protection periods. evidence of material improvement. VA
§ 5.166 New and material evidence based may reduce a stabilized rating when:
(a) VA will apply the following
on service department records. (1) An examination shows sustainable
principles in determining whether
(a) Notwithstanding any other section material improvement, physical or
service connection has been ‘‘in effect’’ mental, in the disability, as explained in
in this part, at any time after VA issues for the 10-year period in § 5.175 and
a decision on a claim, if VA receives or paragraph (d) of this section; and
whether a rating has been ‘‘continuous’’ (2) The evidence shows that it is
associates with the claims file relevant for the 5-year period in § 5.171 or the
official service department records that reasonably certain that the material
20-year period in § 5.172. improvement will be maintained under
existed and had not been associated (b) A protection period begins on the
with the claims file when VA first the ordinary conditions of life.
effective date of the rating decision and (d) How VA determines whether there
decided the claim, VA will reconsider ends on the date that service connection
the claim, notwithstanding § 3.156(a). has been material improvement. VA
would be severed or the rating would be will consider the following when
Such records include, but are not reduced, after due process has been
limited to: determining whether a disability has
provided. undergone material improvement:
(1) Service records that are related to
Cross-reference: Due process (1) In order to reduce a stabilized
a claimed in-service event, injury, or
provisions for reducing compensation rating, there must be evidence of an
disease, regardless of whether such
benefits or severing service connection. examination demonstrating
records mention the veteran by name, as
See § 5.176. improvement. Examinations less
long as the other requirements of this (c) For purposes of §§ 5.171 and
§ 5.166 are met; complete than those on which payments
5.172, a rating is not continuous if were authorized or continued will not
(2) Additional service records
benefits based on that rating are be used as a basis for reduction. A
forwarded by the Department of Defense
discontinued or interrupted because the complete medical record includes all of
or the service department to VA any
veteran reentered active service. the following, when such records exist:
time after VA’s original request for
Cross-reference: Rule on (i) The entire case history;
service records; and
(3) Declassified records that could not discontinuance of awards based on (ii) Medical-industrial history;
reentry into active service. See (iii) Records related to treatment of
have been obtained because the records
§ 3.654(b). intercurrent diseases and exacerbations,
were classified when VA decided the
(d) A rating period may be protected including hospital reports, bedside
claim. examinations, examinations by
(b) Paragraph (a) of this section does even if the beneficiary did not receive
VA compensation based on that rating. designated physicians, and
not apply to records that VA could not
This includes a beneficiary whose examinations that reflect the results of
have obtained when it decided the
payments were adjusted by deduction, tests conducted by laboratory facilities
claim because the records did not exist
recoupment, apportionment, reduction and the cooperation of specialists in
when VA decided the claim, or because
in compensation due to incarceration, or related lines;
the claimant failed to provide sufficient (iv) Private and VA medical
information for VA to identify and because the beneficiary elected to
receive retirement pay. examination records; and
obtain the records from the respective (v) Special examinations indicated as
service department, the Joint Services (e) A retroactive increase or award of
service connection, including one made a result of general examination.
Records Research Center, or from any (2) VA will not use only one
other official source. under § 5.162 of this part (revision
based on clear and unmistakable error), examination as the basis for a reduction
(c) An award made based all or in part of stabilized ratings assigned to diseases
on the records identified by paragraph which results in a veteran being rated or
awarded service connection for a period that tend to show temporary or episodic
(a) of this section is effective on the date improvement, unless the evidence of
entitlement arose or the date VA of 5, 10, or 20 years will be protected
under §§ 5.171, 5.175, and 5.172, record clearly demonstrates sustained
received the previously decided claim, improvement. Diseases subject to
whichever is later, or such other date as respectively, of this part. This paragraph
applies to any protection period, even if temporary or episodic improvement
may be authorized by the provisions of include but are not limited to:
this part applicable to the previously it includes a period based on a

retroactive award. (i) Arteriosclerotic heart disease;
decided claim. (ii) Bronchial asthma;
(d) A retroactive rating of disability Cross-reference: Specific procedural
(iii) Epilepsy;
resulting from disease or injury due process in reducing ratings or (iv) Gastric or duodenal ulcer;
subsequently service connected on the severing service connection. See § 5.176. (v) Bipolar disorders or other
basis of the new evidence from the (Authority: 38 U.S.C. 110, 501, 1159) psychotic reaction;
(vi) Anxiety disorders; (c) Effect of election regarding receipt § 5.174 Protection of entitlement to
(vii) Many skin diseases. of disability compensation. The benefits established before 1959.
(3) VA will not reduce a stabilized provisions of paragraph (a) or (b) of this (a) Persons in receipt of or entitled to
rating assigned to a disease that section apply whether or not the veteran receive benefits on December 31, 1958.
becomes comparatively symptom free elects to receive disability compensation Any person receiving or entitled to
(findings absent) after bed rest based on or pension during all or any part of the receive benefits under any public law
an examination that reflects the results 20-year period. administered by VA on December 31,
of bed rest. (Authority: 38 U.S.C. 110) 1958, may, except where there was
(4) Material improvement will be held fraud, clear and unmistakable error of
to exist only where, after full § 5.173 Protection against reduction of fact or law, or misrepresentation of
compliance with the procedure outlined disability ratings when revisions are made material facts, continue to receive such
in this paragraph (d), the medical record to the Schedule for Rating Disabilities. benefits as long as the conditions
clearly demonstrates that the disability (a) General. VA will not reduce a warranting such payment under those
does not meet the requirements for the disability rating in effect on the effective laws continue. VA will pay the greater
currently assigned disability rating. date of a revision of the applicable benefit under the previous law or the
(5) Where there is evidence of a Schedule for Rating Disabilities unless corresponding current section of title 38
change in diagnosis, VA will follow 38 medical evidence establishes that the U.S.C. in the absence of an election to
CFR 4.13 (‘‘Effect of change of rated disability has actually improved, receive the lesser benefit.
diagnosis’’), as well as this section. VA except when the rating was assigned
(Authority: Section 10, Pub. L. 85–857)
will consider whether evidence of a under the 1925 Schedule of Disability
change in diagnosis represents a Ratings (as provided in paragraph (b) of (b) Service connection established
progression of the previously diagnosed this section). under prior laws. Awards of service
condition, an error in prior diagnosis, or connection and the rate of disability
a disease entity independent of the compensation paid under prior laws
(b) Ratings under 1925 Schedule. (1) repealed by Public Law 85–56 are
service-connected disability. When a VA will reduce a rating that was
new diagnosis reflects only a mental protected, provided that the conditions
assigned under the 1925 Schedule of warranting such status and rate
deficiency or personality disorder, VA Disability Ratings that was the basis of
will consider the possibility of continue and the award was not based
compensation on April 1, 1946, when on fraud, misrepresentation of facts, or
temporary remission of a super-imposed the rated disability has undergone a
psychiatric disease. clear and unmistakable error. With
sustained material improvement that respect to such protected awards, VA
(6) When syphilis of the central would have required a reduction under
nervous system or alcoholic may award compensation and special
the 1925 Schedule. monthly compensation under current
deterioration is diagnosed following a (2) Subject to paragraph (b)(3) of this
long prior history of psychosis, law if such award would result in
section, VA will modify a rating that compensation payment at a rate equal to
psychoneurosis, epilepsy, or the like, it was assigned under the 1925 Schedule
is rarely possible to exclude persistence, or higher than that payable on December
when an increased rating is appropriate 31, 1957. Where a changed physical
in masked form, of the preceding under the Schedule for Rating
innocently acquired manifestations. condition warrants re-rating of service-
Disabilities in part 4 of this chapter. connected disabilities, the amounts of
(e) Reexamination. If VA cannot After such modification, VA will assign
conclude that a reduction is warranted compensation and special monthly
all future ratings of that disability under compensation will be determined under
after considering the evidence as the Schedule for Rating Disabilities in
described in paragraphs (c) and (d) of 38 U.S.C. 1114.
part 4 of this chapter. The increase in
this section, VA will continue the rating disability level must not be temporary (Authority: Pub. L. 85–86; Pub. L. 85–857)
in effect, citing the former diagnosis (due to hospitalization, surgery, etc.). If § 5.175 Protection or severance of service
with the new diagnosis, if any, in a temporary increased rating is assigned, connection.
parentheses, with a notation that the VA will restore the prior rating under
rating will be continued pending (a) Protected service connection. (1)
the 1925 Schedule after the period of VA may not sever service connection
reexamination to be conducted on a date increase has elapsed unless:
to be determined on the basis of the that has been in effect for 10 years or
(i) The permanent residuals require more unless evidence shows that:
facts of each individual case. reduction under the 1925 Schedule; or (i) The original grant was obtained
(Authority: 38 U.S.C. 501) (ii) An increased rating is appropriate through fraud, or;
under the Schedule for Rating (ii) It is clear from military records
Cross-reference: For specific
Disabilities in part 4 of this chapter. that the person identified as a veteran
procedural due process in reducing
(3) VA will not increase a rating did not have the requisite qualifying
ratings, see § 5.176.
assigned under the 1925 Schedule when military service or the veteran’s
§ 5.172 Protection of continuous 20-year the changed condition represents an discharge from service is of a type to
ratings. increased degree of disability under prevent service connection as described
(a) Compensation rating. If a disability either the 1925 Schedule or the in § 5.30.
has been rated at or above a specific Schedule for Rating Disabilities in part (2) The protection afforded in this
level for 20 years, VA may not reduce 4 of this chapter, but the rating provided section extends to determinations of
the rating below such level unless the by the Schedule for Rating Disabilities service connection that were the basis
rating was based on fraud. in part 4 of this chapter is less than the for grants of entitlement to dependency
(b) Pension rating. VA will not reduce rating in effect under the 1925 Schedule and indemnity compensation or death
a permanent total disability rating for on April 1, 1946. compensation.
pension purposes that has been Cross-reference: For procedural due (b) Severance of service connection.
continuously in effect for 20 or more process before reduction of rating under (1) VA will sever service connection
years, unless the rating was based on this section, see § 5.176. when evidence establishes that it is
fraud. (Authority: 38 U.S.C. 501) clearly and unmistakably erroneous (the
burden of proof being upon VA), subject (Authority: 38 U.S.C. 501, 1159) described in § 5.176, VA will
to §§ 5.152 and 5.176. discontinue benefits effective the first
§ 5.177 Effective dates for severing service
(2) A change in diagnosis may be connection or discontinuing or reducing
day of the month after a second 60-day
accepted as a basis for severance of benefit payments. period beginning on the day of notice to
service connection if the examining the beneficiary of the final decision.
(a) Suspended awards. If an award has
physician or physicians or other proper been suspended and it is determined (f) Disability compensation. This
medical authority certifies that, in the that no additional payments are in paragraph (f) applies when VA reduces
light of all accumulated evidence, the order, VA will discontinue the award or discontinues disability compensation
diagnosis that was the basis of the effective the first of the month that because of a change in service-
award of service connection is clearly follows the month for which VA last connected disability or employability
erroneous. This certification must be paid benefits. status. In such cases, two 60-day periods
accompanied by a summary of the facts, (b) Running awards. If an award is apply. After applying the 60-day notice
findings, and reasons supporting the running, VA will discontinue the award period described in § 5.176, VA will pay
conclusion that the diagnosis is effective as appropriate under a reduced rate or discontinue
erroneous. paragraphs (d) through (i) of this compensation effective the first day of
(Authority: 38 U.S.C. 1159, 5104) section. the month after a second 60-day period
(c) Exceptions. This section does not beginning on the day of notice to the
§ 5.176 Due process procedures for beneficiary of the final decision.
apply if:
severing service connection or reducing or
discontinuing compensation benefits.
(1) There is a change in law or a VA (g) Pension. This paragraph (g) applies
administrative issue or a change in when VA reduces or discontinues
Except as provided in § 5.83(c), when interpretation of law or VA issue; if so, pension payments because of a change
VA is contemplating severing service § 5.152 applies (effective dates based on in disability or employability status. In
connection or reducing or discontinuing change of law or VA issue); such cases, VA will reduce the rate or
compensation benefit payments (2) An award was erroneous due to an discontinue pension effective the first
(including those based on individual act of commission or omission by the day of the month after a second 60-day
unemployability), VA will: beneficiary or with the beneficiary’s period beginning on the day of notice to
(a) Prepare a rating proposing knowledge; if so, § 5.165(b) applies; or the beneficiary of the final decision.
severance of service connection or (3) An award was based solely on (h) Chapter 18 monetary allowance.
reduction or discontinuance of administrative error or an error in This paragraph (h) applies when VA
compensation benefit payments and judgment by VA; if so, § 5.165(c) applies reduces or discontinues payments of a
setting forth all material facts and in cases other than severance of service monetary allowance under 38 U.S.C.
reasons; connection under paragraph (d) of this chapter 18 for children with certain
(b) Consistent with § 5.83, notify the section or reduction of compensation birth defects. In such cases, VA will pay
beneficiary at his or her latest address under paragraph (f) of this section. a reduced rate or discontinue the
of record of the contemplated action and (d) Severance of service connection. monetary allowance effective the first
furnish detailed reasons therefor; and This paragraph (d) applies when VA day of the month that follows the end
(c) Allow the beneficiary 60 days from severs service connection. In such cases, of the 60-day notice period concerning
the date of the notice proposing two 60-day periods apply. After the proposed reduction or
severance, reduction, or discontinuance, applying the 60-day notice period discontinuance. The 60-day notice
to present additional evidence to show described in § 5.176, VA will sever period is the one described in § 5.176.
that service connection should be service connection effective the first day (i) Other. The effective date for other
maintained, the rating should not be of the month after a second 60-day reductions or discontinuances of benefit
reduced, or the benefits should remain period beginning on the day of notice to payments will be based upon the
intact. If VA receives no additional the beneficiary of the final decision. reasons for the change as described in
evidence within the 60-day period, or (e) Character of discharge or line of
§ 3.500 through § 3.503 of this chapter.
the evidence received does not duty. This paragraph (e) applies when
demonstrate that the proposed action VA discontinues benefits based on a (Authority: 38 U.S.C. 1110, 1131, 1117, 5112)
should not be taken, VA will notify the determination as to character of §§ 5.178–5.179 [Reserved]
beneficiary that VA is severing service discharge or line of duty. In such cases,
connection or reducing or discontinuing two 60-day periods apply. After [FR Doc. E7–9542 Filed 5–21–07; 8:45 am]
the benefit. applying the 60-day notice period BILLING CODE 8320–01–P

Proposed Rule: Compensation, Pension, Burial, and Related Benefits: General Provisions Reorganization and Revision

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Proposed Rule: Compensation, Pension, Burial, and Related Benefits: General Provisions Reorganization and Revision

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Tuesday,

May 22, 2007

NW., Washington, DC 20420, (202) 273– prisoners’ of war compensation claims.

Table Comparing Current Part 3 Rules

Based in whole or in Based in whole or in regulations that will not be carried

5.165(c) ..................... 3.500(b)(2). find a reference to paragraph (a) of a

Section 5.150 General Effective Dates

that they are defined in the Regulatory

Effective date provision Part 5 location

(1) SUBPART B—SERVICE REQUIREMENTS FOR VETERANS

(2) SUBPART C—ADJUDICATIVE PROCESS, GENERAL

(i) Filing a claim for death benefits ........................................................................................................................................ § 5.53(c)(5).

(3) SUBPART D—DEPENDENTS AND SURVIVORS

(i) Evidence of dependency-reduction or discontinuance of VA benefits ............................................................................. § 5.181(c).

(4) SUBPART E—CLAIMS FOR SERVICE CONNECTION AND DISABILITY COMPENSATION

(5) SUBPART F—NONSERVICE-CONNECTED DISABILITY PENSIONS AND DEATH PENSIONS

Effective date provision Part 5 location

(i) Medal of Honor pension .................................................................................................................................................... § 5.580(c).

(8) SUBPART I—BENEFITS FOR CERTAIN FILIPINO VETERANS AND SURVIVORS

(9) SUBPART K—MATTERS AFFECTING THE RECEIPT OF BENEFITS

(i) Remission of forfeiture ...................................................................................................................................................... § 5.680(c)(2).

(10) SUBPART L—PAYMENTS AND ADJUSTMENTS TO PAYMENTS

charged or released from hospital care.

Effective date provision Part 5 location

(i) Effective date of apportionment grant or increase ............................................................................................................ § 5.783.

this part applicable to the previously it includes a period based on a

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