05-8899. Presumption of Sound Condition: Aggravation of a Disability by Active Service

AGENCY:

Department of Veterans Affairs.

ACTION:

Final rule.

SUMMARY:

This document amends the Department of Veterans Affairs (VA) adjudication regulations regarding the presumption of soundness of a veteran by adding a requirement that, in order to rebut the presumption of soundness of a veteran on entrance into active service, VA must prove not only that the condition existed prior to entrance into active service, but also that it was not aggravated by the veteran's active service. This amendment reflects a change in VA's interpretation of the statute governing the presumption of sound condition, and is based on a recent opinion of VA's General Counsel as well as a recent decision of the United States Court of Appeals for the Federal Circuit. The intended effect of this amendment is to require that VA, not the claimant, prove that the disability preexisted entrance into military service and that the disability was not aggravated by such service before the presumption of soundness on entrance onto active duty is overcome.

DATES:

Effective Date: May 4, 2005.

Applicability Date: This rule applies to claims that were pending on or filed after the effective date of this rule, May 4, 2005. It does not apply to claims that were finally decided prior to the effective date of this rule or to collateral challenges to final decisions rendered prior to the effective date of this rule.

FOR FURTHER INFORMATION CONTACT:

David Barrans, Attorney, Office of General Counsel (022), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, telephone [phone].

SUPPLEMENTARY INFORMATION:

VA is amending its adjudication regulations at 38 CFR 3.304(b) to reflect a change in the interpretation of the statute governing the presumption of sound condition.

Section 1111 of title 38, United States Code, provides that veterans are presumed to have been in sound condition when they were examined, accepted, and enrolled for service, except as to conditions that were noted at the time, or “where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.” Section 1153 of title 38, United States Code, states that “[a] preexisting disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.”

VA's regulation implementing the presumption of sound condition, 38 CFR 3.304(b), historically has stated that the presumption may be rebutted by clear and unmistakable evidence that a condition existed prior to service. Although this appears to ignore the last seven words of 38 U.S.C. 1111 (“and was not aggravated by such service”), VA historically has interpreted those seven words to relate to the presumption of aggravation under 38 U.S.C. 1153. Accordingly, VA's regulation implementing the presumption of aggravation under 38 U.S.C. 1153 also implements the last seven words of section 1111, as VA previously construed those words. That regulation, 38 CFR 3.306(b), states that, when a preexisting disability increased in severity during service, the presumption of aggravation may be rebutted only by clear and unmistakable evidence that the increase was due to the natural progress of the disease. The regulation further states that aggravation will not be conceded when a preexisting disability underwent no increase in severity during service.

Under VA's current regulations, if a condition was not noted at entry but is shown by clear and unmistakable evidence to have existed prior to entry, the burden then shifts to the claimant to show that the condition increased in severity during service. Only if the claimant satisfies this burden will VA incur the burden of refuting aggravation by clear and unmistakable evidence.

VA is revising its interpretation of section 1111 to provide that, if a condition is not noted at entry into service, the presumption of sound condition can be rebutted only if clear and unmistakable evidence shows both that the condition existed prior to service and that the condition was not aggravated by service. Under this interpretation, the burden does not shift to the claimant to establish that a preexisting condition increased in severity during service. Rather, VA alone bears the burden of proving both that the condition existed prior to service and that it was not aggravated by service. If the evidence fails to support either of those findings, the presumption of sound condition is not rebutted.

Our revised interpretation of section 1111 is based on the extensive analysis of the history of that statute stated in a precedent opinion of VA's General Counsel, VAOPGCPREC 3-2003, and the Federal Circuit's opinion in Wagner v. Principi, No. 02-7347 (Fed. Cir. June 1, 2004). As the General Counsel and the Federal Circuit noted, the language of section 1111 literally provides that, if a condition was not noted at entry into service, VA bears the burden of showing both that the condition existed prior to service and that it was not aggravated by service. If VA fails to establish either of those facts, the claimant would be entitled to a presumption that he or she entered service in sound condition.

VA has previously refrained from adopting a strictly literal interpretation of section 1111, because such a literal reading compels results that have been described as “illogical” by the General Counsel, “self-contradictory” by the Federal Circuit, and possibly “absurd” by the United States Court of Appeals for Veterans Claims. See VAOPGCPREC 3-2003, Wagner, slip op. at 8; Cotant v. Principi, 17 Vet. App. 116, 129 (2003). Among other things, a literal construction of the statute would require VA to presume that a veteran entered service in sound condition even in cases where clear and unmistakable evidence shows the contrary, merely because VA cannot prove the absence of aggravation in service. It is unclear why the question of whether a preexisting disability was aggravated in service should have any bearing on the logically preliminary question of whether there was a preexisting disability at all.

Despite these concerns, VA's General Counsel and the Federal Circuit have concluded that the legislative history of section 1111 strongly suggests that Congress intended what the language of the statute literally requires. The General Counsel also concluded that, although the statute's requirements seemed counterintuitive, they were not so bizarre that Congress could not have intended them.

The rebuttal standard in what is now section 1111 originated in the Act of July 13, 1943, ch. 233, § 9(b), 57 Stat. 554, 556 (Pub. L. 78-144), as an amendment to Veterans' Regulation No. 1(a), part I, para. I(b) (Exec. Ord. No. 6,156) (June 6, 1933). Prior to the amendment, paragraph I(b) stated that the presumption of soundness could be rebutted “where evidence or medical judgment is such as to warrant a finding that the injury or disease existed prior to acceptance and enrollment.” In 1943, a bill was introduced in the House to make the presumption of soundness irrebuttable (see H.R. 2703, 78th Cong., 1st Sess. (1943)). That bill apparently was introduced in response to the concern that “a great many men have been turned out of the service after they had served for a long period of time, some of them probably 2 or 3 years, on the theory that they were disabled before they were ever taken into the service” (89 Cong. Rec. 7463 (daily ed. July 7, 1943) (statement of Cong. Rankin)). The Administrator of Veterans Affairs recommended that the bill be revised to permit rebuttal of the presumption “where clear and unmistakable evidence demonstrates that the injury or disease existed prior to acceptance and enrollment” (S. Rep. No. 403, 78th Cong., 1st Sess. 6 (1943)). The Senate thereafter approved an amendment to the bill adopting the Administrator's suggested language, but adding to it the phrase “and was not aggravated by such active military or naval service.” That language was approved by the House and was included in the legislation enacted as Public Law 78-144. The provisions of Veterans' Regulation No. 1(a), part I, para. I(b), as amended, were subsequently codified without material change at 38 U.S.C. 311, later renumbered as section 1111.

A Senate Committee Report concerning the 1943 statute stated that “[t]he language added by the committee, ‘and was not aggravated by such active military or naval service’ is to make clear the intention to preserve the right in aggravation cases as was done in Public [Law] No. [73-]141.” S. Rep. No. 403, at 2. Public Law 73-141, referenced as the model for the Senate amendment, provided for restoration of service-connected disability awards that had been severed under depression-era statutes, and provided that:

The provisions of this section shall not apply * * * to persons as to whom clear and unmistakable evidence discloses that the disease, injury, or disability had inception before or after the period of active military or naval service, unless such disease, injury, or disability is shown to have been aggravated during service * * * and as to all such cases enumerated in this proviso, all reasonable doubts shall be resolved in favor of the veteran, the burden of proof being on the Government.

Act of March 27, 1943, ch. 100, § 27, 48 Stat. 508, 524. This statute appears to have placed the burden on the government to show by clear and unmistakable evidence both that the disability existed prior to service and that it was not aggravated by service. It is thus consistent with the view that the presumption of soundness enacted in 1943 was intended to place the burden of proof on VA with respect to both issues. That purpose is also reflected in other statements made during the debate on the 1943 legislation. See 89 Cong. Rec. 7463 (daily ed. July 7, 1943) (statement of Rep. Rankin) (“It places the burden of proof on the Veterans’ Administration to show by unmistakable evidence that the injury or disease existed prior to acceptance and enrollment and was not aggravated by such active military or naval service.”)

Based on the foregoing authorities, VA is revising its regulations at 38 CFR 3.304(b) to provide that, in order to rebut the presumption of sound condition, VA must establish by clear and convincing evidence both that the disability existed prior to service and that it was not aggravated by service. To accomplish this, VA is amending § 3.304(b) by adding, at the end of the first sentence, “and was not aggravated by such service.”

The effect of this new interpretation is to establish different standards to govern for disabilities that were noted at entry into service and those that were not. If a disability was not noted at entry into service, VA will apply the presumption of sound condition under 38 U.S.C. 1111. If VA fails to establish either that the disability existed prior to service or that it was not aggravated by service, the presumption of sound condition will govern and the disability will be considered to have been incurred in service if all other requirements for service connection are established. In such cases, the presumption of aggravation in 38 U.S.C. 1153 will not apply because VA will presume that the veteran entered service in sound condition. On the other hand, if a condition was noted at entry into service, VA will consider the claim with respect to the presumption of aggravation in section 1153.

This final rule is an interpretative rule explaining how VA construes 38 U.S.C. 1111, and it merely reflects the holding in the Federal Circuit's decision in Wagner. Accordingly, there is a basis for dispensing with prior notice and comment and delayed effective date provisions of 5 U.S.C. 552 and 553.

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 developing 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 given year. This rule would have no such effect on State, local, or tribal governments, or the private sector.

Regulatory Flexibility Act

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

Paperwork Reduction Act

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

The Catalog of Federal Domestic Assistance program numbers are 64.102, 64.109 and 64.110.

List of Subjects in 38 CFR Part 3

• Administrative practice and procedure
• Claims
• Health care
• Individuals with disabilities
• Pensions
• Veterans

Approved: April 4, 2005.

Gordon H. Mansfield,

Deputy Secretary of Veterans Affairs.

For the reasons set forth in the preamble, 38 CFR part 3 is amended as follows:

PART 3—ADJUDICATION

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

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

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

§ 3.304

[Amended]

2. In § 3.304, paragraph (b) introductory text, remove “thereto.” and add, in its place, “thereto and was not aggravated by such service.”