31 March 2009

[Federal Register: March 31, 2009 (Volume 74, Number 60)]
[Rules and Regulations]
[Page 14491-14492]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31mr09-14]

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AN04

Posttraumatic Stress Disorder

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.



SUMMARY: This document affirms an amendment to the Department of  Veterans Affairs (VA) adjudication regulations regarding service connection for posttraumatic stress disorder (PTSD) that eliminated the requirement of evidence corroborating occurrence of the claimed in-service stressor in claims in which PTSD is diagnosed in service. This amendment is necessary to facilitate proof of service connection in such claims. By this amendment, we intend to more quickly adjudicate claims for service connection for PTSD for these veterans.

DATES: The interim final rule became effective on October 29, 2008, and is applicable to claims pending before VA on the effective date of that rule, as well as to claims filed after that date.

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

[[Page 14492]]


SUPPLEMENTARY INFORMATION: On October 29, 2008, at 73 FR 64208, VA published an interim final rule amending 38 CFR 3.304(f) to relax the requirement for establishing service connection for PTSD that was diagnosed in service. We added a new paragraph to provide that, if the evidence shows that a veteran's PTSD was diagnosed during service and the claimed stressor is related to that service, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. We provided a 30-day comment period that ended November 28, 2008. We received one comment. The commenter supported the relaxed standards for providing benefits for veterans who were diagnosed with PTSD while in service, but objected to requiring a veteran to show a stressor consistent with the circumstances, conditions, or hardships of the veteran's service. The commenter felt that the requirement was especially troublesome in a theater of combat such as Iraq where combat is experienced by troops with varying military occupational specialties and who, because of the circumstances of their service, may not be able to corroborate or establish the circumstances or conditions of their stressors.

We make no change based on this comment. The language to which the commenter objects is mandated by 38 U.S.C. 1154(a). Section 1154(a) requires VA to include in regulations pertaining to service connection of disabilities provisions requiring VA to consider "the places, types, and circumstances'' of a veteran's service when deciding a claim for service connection. Also, the inclusion of that language in the regulation makes it parallel to 38 U.S.C. 1154(b) in ensuring that the stressor claim is plausible in light of what is known of the veteran's service.

VA appreciates the comment submitted in response to the interim final rule. Based on the rationale stated in the interim final rule and in this document, we now affirm as a final rule the amendments made by the interim final rule.

Administrative Procedure Act

This document affirms without any changes amendments made by an interim final rule that is already in effect. Accordingly, we have concluded under 5 U.S.C. 553 that there is good cause for dispensing with a delayed effective date based on the conclusion that such procedure is impracticable, unnecessary, and contrary to the public interest.

Paperwork Reduction Act

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

Regulatory Flexibility Act

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

Executive Order 12866

Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Executive Order classifies a "significant regulatory action" requiring review by the Office of Management and Budget (OMB), as any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. The economic, interagency, budgetary, legal, and policy implications of this final rule have been examined, and it has been determined not to be a significant regulatory action under Executive Order 12866.

Unfunded Mandates

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

Catalog of Federal Domestic Assistance Numbers and Titles

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

List of Subjects in 38 CFR Part 3

Administrative practice and procedure, Claims, Disability benefits, Health care, Pensions, Radioactive materials, Veterans, Vietnam.

Approved: March 23, 2009.
John R. Gingrich,
Chief of Staff, Department of Veterans Affairs.

Part 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity Compensation

The interim final rule amending 38 CFR Part 3 that was published at 73 FR 64208 on October 29, 2008, is adopted as a final rule without change.

[FR Doc. E9-7229 Filed 3-30-09; 8:45 am]

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