99-15522. Direct Service Connection (Post-Traumatic Stress Disorder)  

  • [Federal Register Volume 64, Number 117 (Friday, June 18, 1999)]
    [Rules and Regulations]
    [Pages 32807-32808]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 99-15522]
    
    
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    DEPARTMENT OF VETERANS AFFAIRS
    
    38 CFR Part 3
    
    RIN 2900-AI97
    
    
    Direct Service Connection (Post-Traumatic Stress Disorder)
    
    AGENCY: Department of Veterans Affairs.
    
    ACTION: Final rule.
    
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    SUMMARY: This document amends the Department of Veterans Affairs (VA) 
    adjudication regulations concerning the type of evidence required to 
    establish service connection for post-traumatic stress disorder (PTSD). 
    This amendment implements a decision by the United States Court of 
    Veterans Appeals (the Court) which stated that current regulations do 
    not adequately reflect the governing statute.
    
    DATES: Effective Date: March 7, 1997.
    
    FOR FURTHER INFORMATION CONTACT: John Bisset, Jr., Consultant, 
    Regulations Staff, Compensation and Pension Service, Veterans Benefits 
    Administration, 810 Vermont Avenue, NW, Washington, DC 20420, telephone 
    (202) 273-7210.
    
    SUPPLEMENTARY INFORMATION: PTSD is classified by the American 
    Psychiatric Association's Diagnostic and Statistical Manual of Mental 
    Disorders, Fourth Edition (DSM-IV) as an anxiety disorder resulting 
    from exposure to an extreme traumatic stressor involving direct 
    personal experience of an event that involved actual or threatened 
    death or serious injury or other threat to one's physical integrity; 
    witnessing an event that involved death, injury, or a threat to the 
    physical integrity of another person; or learning about unexpected or 
    violent death, serious harm, or threat of death or injury experienced 
    by a family member or other close associate. The person's response to 
    the event must involve intense fear, helplessness, or horror. PTSD is 
    characterized by persistent reexperiencing of the traumatic event, 
    persistent avoidance of stimuli associated with the trauma and numbing 
    of general responsiveness, and persistent symptoms of increased 
    arousal.
        VA regulations at 38 CFR 3.304(f) provide that service connection 
    for PTSD requires medical evidence establishing a clear diagnosis of 
    the condition, credible supporting evidence that the claimed in-service 
    stressor actually occurred, and a link, established by medical 
    evidence, between current symptomatology and the claimed in-service 
    stressor. If the claimed stressor is related to combat, service 
    department evidence that the veteran engaged in combat or that the 
    veteran was awarded the Purple Heart, Combat Infantryman Badge, or 
    similar combat citation will be accepted, in the absence of evidence to 
    the contrary, as conclusive evidence of the claimed in-service 
    stressor.
        Section 1154(b) of title 38, United States Code, which is the 
    statutory authority for Sec. 3.304(f), provides that, where a veteran 
    engaged in combat with the enemy, VA must accept as sufficient proof of 
    service-connection for a claimed disease or injury satisfactory lay or 
    other evidence of service incurrence or aggravation of such disease or 
    injury, if consistent with the
    
    [[Page 32808]]
    
    circumstances, conditions, or hardships of such service, 
    notwithstanding the fact that there is no official record of the 
    incurrence or aggravation of the claimed disease or injury. In Cohen v. 
    Brown, 10 Vet. App. 128 (1997), the Court of Veterans Appeals found a 
    deficiency in Sec. 3.304(f) in that it does not adequately reflect, for 
    the purposes of establishing an in-service stressor, the relaxed 
    adjudicative evidentiary requirements provided by 38 U.S.C. 1154(b) for 
    establishing service incurrence of an event. The Court noted that, 
    although Sec. 3.304(f) states that proof of an in-service stressor that 
    is claimed to be related to combat may be shown by service department 
    evidence that the veteran engaged in combat, or that the veteran 
    received a particular decoration or award, Sec. 3.304(f) does not 
    expressly provide that a combat veteran's lay testimony alone may 
    establish an in-service stressor pursuant to 38 U.S.C. 1154(b). The 
    Court reiterated its conclusion in Zarycki v. Brown, 6 Vet. App. 91, 98 
    (1993), that, under 38 U.S.C. 1154(b), where it is determined that the 
    veteran engaged in combat with the enemy and the claimed stressor is 
    related to such combat, the veteran's lay testimony regarding the 
    claimed stressor must be accepted as conclusive as to its occurrence 
    and that no further development for corroborative evidence is required, 
    provided that the testimony is ``satisfactory'' and consistent with the 
    circumstances, conditions, or hardships of the veteran's service. VA 
    has amended Sec. 3.304(f) accordingly to provide that, if a veteran 
    engaged in combat and the claimed stressor is related to that combat, 
    in the absence of clear and convincing evidence to the contrary, and 
    provided that the claimed stressor is consistent with the 
    circumstances, conditions, or hardships of the veteran's service, 
    occurrence of the claimed stressor may be established by the veteran's 
    lay testimony alone.
        Previously 38 CFR 3.304(f) provided that ``service department 
    evidence that the veteran engaged in combat or that the veteran was 
    awarded the Purple Heart, Combat Infantryman Badge, or similar combat 
    citation'' was conclusive evidence of ``the claimed in-service 
    stressor.'' In fact, service department evidence that the veteran 
    engaged in combat or received combat citations serves to establish that 
    the veteran engaged in combat rather than that the claimed stressor 
    occurred. We have therefore removed the references to service 
    department evidence of combat or receipt of specific combat citations 
    and revised the regulation to state that if evidence establishes that 
    the veteran engaged in combat, the veteran's lay testimony, subject to 
    the restrictions cited above, is sufficient to establish that the 
    claimed combat-related stressor actually occurred.
        Additionally, we have amended that portion of Sec. 3.304(f) 
    regarding prisoner-of-war-related stressors in a similar manner. 38 
    U.S.C. 1154(a) requires that the Secretary include in regulations 
    pertaining to service-connection for disabilities provisions requiring 
    that due consideration be given to the places, types, and circumstances 
    of the veteran's military service. Prisoner-of-War (POW) experience is 
    another type of situation where events often can never be fully 
    documented and therefore warrants the same relaxed adjudication 
    requirements for service connection of PTSD as for those veterans who 
    engaged in combat.
        The Court in Cohen v. Brown also pointed out that, although on 
    October 8, 1996, VA issued a final rule amending the Schedule for 
    Rating Disabilities (38 CFR Part 4) pertaining to mental disorders 
    which adopted the nomenclature of DSM-IV (See 61 FR 52695-702), no 
    amendment to Sec. 3.304(f) was made. The Court noted that Sec. 3.304(f) 
    does not specifically set forth any requirements regarding the 
    sufficiency of a stressor and the adequacy of symptomatology to support 
    a diagnosis of PTSD. We have therefore amended Sec. 3.304(f) to require 
    that the medical evidence diagnosing PTSD comply with 38 CFR 4.125(a), 
    which requires that diagnoses of mental disorders conform to DSM-IV.
        VA is issuing a final rule, effective March 7, 1997, the date of 
    the Cohen v. Brown decision, to make the above described amendments. 
    Because these amendments reflect a decision of the Court, publication 
    as a proposal for public comment is unnecessary.
        Because no notice of proposed rulemaking was required in connection 
    with the adoption of this final rule, no regulatory flexibility 
    analysis is required under the Regulatory Flexibility Act (5 U.S.C. 
    601-612). Even so, 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.
        The Catalog of Federal Domestic Assistance program numbers are 
    64.109 and 64.110.
    
    List of Subjects in 38 CFR Part 3
    
        Administrative practice and procedure, Claims, Disability benefits, 
    Health care, Pensions, Radioactive materials, Veterans, Vietnam.
    
        Approved: November 20, 1998.
    Togo D. West, Jr.,
    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.
    
        2. In Sec. 3.304, paragraph (f) is revised to read as follows:
    
    
    Sec. 3.304  Direct service connection; wartime and peacetime.
    
    * * * * *
        (f) Post-traumatic stress disorder. Service connection for post-
    traumatic stress disorder requires medical evidence diagnosing the 
    condition in accordance with Sec. 4.125(a) of this chapter; a link, 
    established by medical evidence, between current symptoms and an in-
    service stressor; and credible supporting evidence that the claimed in-
    service stressor occurred. If the evidence establishes that the veteran 
    engaged in combat with the enemy and the claimed stressor is related to 
    that combat, in the absence of clear and convincing evidence to the 
    contrary, and provided that the claimed stressor is consistent with the 
    circumstances, conditions, or hardships of the veteran's service, the 
    veteran's lay testimony alone may establish the occurrence of the 
    claimed in-service stressor. If the evidence establishes that the 
    veteran was a prisoner-of-war under the provisions of Sec. 3.1(y) of 
    this part and the claimed stressor is related to that prisoner-of-war 
    experience, in the absence of clear and convincing evidence to the 
    contrary, and provided that the claimed stressor is consistent with the 
    circumstances, conditions, or hardships of the veteran's service, the 
    veteran's lay testimony alone may establish the occurrence of the 
    claimed in-service stressor.
    
    (Authority: 38 U.S.C. 1154(b))
    
    [FR Doc. 99-15522 Filed 6-17-99; 8:45 am]
    BILLING CODE 8320-01-P
    
    
    

Document Information

Published:
06/18/1999
Department:
Veterans Affairs Department
Entry Type:
Rule
Action:
Final rule.
Document Number:
99-15522
Pages:
32807-32808 (2 pages)
RINs:
2900-AI97: Direct Service Connection (Post-Traumatic Stress Disorder)
RIN Links:
https://www.federalregister.gov/regulations/2900-AI97/direct-service-connection-post-traumatic-stress-disorder-
PDF File:
99-15522.pdf
CFR: (1)
38 CFR 3.304