General Provisions, 16464-16475 [06-3116]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 71, Number 62 (Friday, March 31, 2006)]
[Proposed Rules]
[Pages 16464-16475]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-3116]



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Part III





Department of Veterans Affairs





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38 CFR Part 5



General Provisions; Proposed Rule

Federal Register / Vol. 71, No. 62 / Friday, March 31, 2006 / 
Proposed Rules

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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 5

RIN 2900-AL87


General Provisions

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to reorganize 
and rewrite in plain language general provisions applicable to its 
compensation and pension regulations, including definitions. These 
revisions are proposed as part of VA's rewrite and reorganization of 
all of its compensation and pension rules in a logical, claimant-
focused, and user-friendly format. The intended effect of the proposed 
revisions is to assist claimants, beneficiaries and VA personnel in 
locating and understanding these general provisions.

DATES: Comments must be received by VA on or before May 30, 2006.

ADDRESSES: Written comments may be submitted by: mail or hand-delivery 
to Director, Regulations Management (00REG1), Department of Veterans 
Affairs, 810 Vermont Ave., NW., Room 1068, Washington, DC 20420; fax to 
(202) 273-9026; or e-mail through https://www.Regulations.gov. Comments 
should indicate that they are submitted in response to ``RIN 2900-
AL87.'' All comments received will be available for public inspection 
in the Office of Regulation Policy and Management, Room 1063B, between 
the hours of 8 a.m. and 4:30 p.m., Monday through Friday (except 
holidays). Please call (202) 273-9515 for an appointment.

FOR FURTHER INFORMATION CONTACT: Bob White, Acting Chief, Regulations 
Rewrite Project (00REG2), Department of Veterans Affairs, 810 Vermont 
Avenue, NW., Washington, DC 20420, (202) 273-9515.

SUPPLEMENTARY INFORMATION: The Secretary of Veterans Affairs has 
established an Office of Regulation Policy and Management to provide 
centralized management and coordination of VA's rulemaking process. One 
of the major functions of this office is to oversee a Regulation 
Rewrite Project (the Project) to improve the clarity and consistency of 
existing VA regulations. The Project responds to a recommendation made 
in the October 2001 ``VA Claims Processing Task Force: Report to the 
Secretary of Veterans Affairs.'' The Task Force recommended that the 
compensation and pension regulations be rewritten and reorganized in 
order to improve VA's claims adjudication process. Therefore, the 
Project began its efforts by reviewing, reorganizing and redrafting the 
content of the regulations in 38 CFR part 3 governing the compensation 
and pension program of the Veterans Benefits Administration. These 
regulations are among the most difficult VA regulations for readers to 
understand and apply.
    Once rewritten, the proposed regulations will be published in 
several portions for public review and comment. This is one such 
portion. It includes proposed rules regarding the scope of the 
regulations in new part 5, general definitions, and general policy 
provisions.

Outline

Overview of New Part 5 Organization
Overview of Proposed Subpart A Organization
Table Comparing Current Part 3 Rules with Proposed Part 5 Rules
Content of Proposed Regulations
    5.0 Scope of applicability.
    5.1 General definitions.
    5.2 [Reserved]
    5.3 Standards of proof.
    5.4 Claims adjudication policies.
Endnote Regarding Amendatory Language
Paperwork Reduction Act
Regulatory Flexibility Act
Executive Order 12866
Unfunded Mandates
Catalog of Federal Domestic Assistance Numbers
List of Subjects in 38 CFR Part 5

Overview of New Part 5 Organization

    We plan to organize the new part 5 regulations so that most 
provisions governing a specific benefit are located in the same 
subpart, with general provisions pertaining to all compensation and 
pension benefits also grouped together. This organization will allow 
claimants, beneficiaries, and their representatives, as well as VA 
adjudicators, to find information relating to a specific benefit more 
quickly than the organization provided in current part 3.
    The first major subdivision would be ``Subpart A--General 
Provisions.'' It would include information regarding the scope of the 
regulations in new part 5, general definitions and general policy 
provisions for this part. This subpart is the subject of this document.
    ``Subpart B--Service Requirements for Veterans'' would include 
information regarding a veteran's military service, including the 
minimum service requirement, types of service, periods of war, and 
service evidence requirements. This subpart was published as proposed 
on January 30, 2004. See 69 FR 4820.
    ``Subpart C--Adjudicative Process, General'' would inform readers 
about claims and benefit application filing procedures, VA's duties, 
rights and responsibilities of claimants and beneficiaries, general 
evidence requirements, and general effective dates for new awards, as 
well as revision of decisions and protection of VA ratings. This 
subpart will be published as three separate Notices of Proposed 
Rulemaking (NPRM)s due to its size. The first, concerning the duties of 
VA and the rights and responsibilities of claimants and beneficiaries, 
was published on May 10, 2005. See 70 FR 24680.
    ``Subpart D--Dependents and Survivors'' would inform readers how VA 
determines whether an individual is a dependent or a survivor for 
purposes of determining eligibility for VA benefits. It would also 
provide the evidence requirements for these determinations.
    ``Subpart E--Claims for Service Connection and Disability 
Compensation'' would define service-connected disability compensation 
and service connection, including direct and secondary service 
connection. This subpart would inform readers how VA determines service 
connection and entitlement to disability compensation. The subpart 
would also contain those provisions governing presumptions related to 
service connection, rating principles, and effective dates, as well as 
several special ratings. This subpart will be published as three 
separate NPRMs due to its size. The first, concerning presumptions 
related to service connection, was published on July 27, 2004. See 69 
FR 44614.
    ``Subpart F--Nonservice-Connected Disability Pensions and Death 
Pensions'' would include information regarding the three types of 
nonservice-connected pension: Improved Pension, Old-Law Pension, and 
Section 306 Pension. This subpart would also include those provisions 
that state how to establish entitlement to Improved Pension and the 
effective dates governing each pension. This subpart will be published 
as two separate NPRMs due to its size. The portion concerning Old-Law 
Pension, Section 306 Pension, and elections of Improved Pension was 
published as proposed on December 27, 2004. See 69 FR 77578.
    ``Subpart G--Dependency and Indemnity Compensation, Death 
Compensation, Accrued Benefits, and Special Rules Applicable Upon Death 
of a Beneficiary'' would contain regulations governing claims for 
dependency and indemnity compensation (DIC); death

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compensation; accrued benefits; benefits awarded, but unpaid at death; 
and various special rules that apply to the disposition of VA benefits, 
or proceeds of VA benefits, when a beneficiary dies. This subpart would 
also include related definitions, effective-date rules, and rate-of-
payment rules. This subpart will be published as two separate NPRMs due 
to its size. The portion concerning accrued benefits, death 
compensation, special rules applicable upon the death of a beneficiary, 
and several effective-date rules, was published as proposed on October 
1, 2004. See 69 FR 59072. The portion concerning DIC benefits and 
general provisions relating to proof of death and service-connected 
cause of death was published on October 21, 2005. See 70 FR 61326.
    ``Subpart H--Special and Ancillary Benefits for Veterans, 
Dependents, and Survivors'' would pertain to special and ancillary 
benefits available, including benefits for children with various birth 
defects.
    ``Subpart I--Benefits for Certain Filipino Veterans and Survivors'' 
would pertain to the various benefits available to Filipino veterans 
and their survivors.
    ``Subpart J--Burial Benefits'' would pertain to burial allowances.
    ``Subpart K--Matters Affecting Receipt of Benefits'' would contain 
provisions regarding bars to benefits, forfeiture of benefits, and 
renouncement of benefits.
    ``Subpart L--Payments and Adjustments to Payments'' would include 
general rate-setting rules, several adjustment and resumption 
regulations, and election-of-benefit rules. Because of its size, 
proposed regulations in subpart L will be published in two separate 
NPRMs.
    The final subpart, ``Subpart M--Apportionments and Payments to 
Fiduciaries or Incarcerated Beneficiaries,'' would include regulations 
governing apportionments, benefits for incarcerated beneficiaries, and 
guardianship.
    Some of the regulations in this NPRM cross-reference other 
compensation and pension regulations. If those regulations have been 
published in this or earlier NPRMs for the Project, we cite the 
proposed part 5 section. We also include, in the relevant portion of 
the Supplementary Information, the Federal Register page where a 
proposed part 5 section published in an earlier NPRM may be found. 
However, where a regulation proposed in this NPRM would cross-reference 
a proposed part 5 regulation that has not yet been published, we cite 
to the current part 3 regulation that deals with the same subject 
matter. The current part 3 section we cite may differ from its eventual 
part 5 counterpart in some respects, but this method will assist 
readers in understanding these proposed regulations where no part 5 
counterpart has yet been published. If there is no part 3 counterpart 
to a proposed part 5 regulation that has not yet been published, we 
have inserted ``[regulation that will be published in a future Notice 
of Proposed Rulemaking]'' where the part 5 regulation citation would be 
placed.
    Because of its large size, proposed part 5 will be published in a 
number of NPRMs, such as this one. VA will not adopt any portion of 
part 5 as final until all of the NPRMs have been published for public 
comment.
    In connection with this rulemaking, VA will accept comments 
relating to a prior rulemaking issued as a part of the Project, if the 
matter being commented on relates to both rulemakings.

Overview of Proposed Subpart A Organization

    This NPRM pertains to general provisions applicable to compensation 
and pension programs. These regulations would be contained in proposed 
Subpart A of new 38 CFR part 5. Although these regulations have been 
substantially restructured and rewritten for greater clarity and ease 
of use, most of the basic concepts contained in these proposed 
regulations are the same as their existing counterparts in 38 CFR part 
3. However, a few substantive differences are proposed, as are some 
regulations that do not have counterparts in 38 CFR part 3.

Table Comparing Current Part 3 Rules With Proposed Part 5 Rules

    The following table shows the relationship between the current 
regulations in part 3 and the proposed regulations contained in this 
NPRM:

------------------------------------------------------------------------
                                         Based in whole or in part on 38
Proposed or redesignated part 5 section  CFR part 3 section or paragraph
              or paragraph                         (or ``New'')
------------------------------------------------------------------------
5.0....................................  New.
5.1--Active military Service...........  New.
5.1--Agency of original jurisdiction...  New.
5.1--Alien.............................  New.
5.1--Armed Forces......................  3.1(a).
5.1--Beneficiary.......................   New.
5.1--Benefit...........................   New.
5.1--Certified statement...............  New.
5.1--Child born of the marriage and      3.54(d).
 child born before the marriage.
5.1--Claimant..........................  New.
5.1--Competent evidence................  New.
5.1--Direct service connection.........  New.
5.1-- Discharged or released from        3.1(h).
 active military service (1).
5.1-- Discharged or released from        New.
 active military service (2).
5.1--Final decision....................  New.
5.1--Former prisoner of war (or former   Introduction to 3.1(y)(1),
 POW).                                    3.1(y)(2)(i), and 3.1(y)(5).
5.1--Fraud (1).........................  3.901(a).
5.1--Fraud (2).........................  3.1(aa)(1).
5.1--Fraud (3).........................  3.1(aa)(2).
5.1--In the waters adjacent to Mexico..  3.1(t).
5.1--Insanity..........................  New.
5.1--Notice............................  3.1(q).
5.1--Nursing home......................  3.1(z).
5.1--On the borders of Mexico..........  3.1(s).
5.1--Political subdivision of the        3.1(o).
 United States.
5.1--Reserve component.................  3.1(b).
5.1--Reserve, or reservist.............  3.1(c).
5.1--Secretary concerned...............  3.1(g).

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5.1--Service medical records...........  New.
5.1--State.............................  3.1(i).
5.1--Uniformed services................  New.
5.1--Veteran...........................  3.1(d).
5.2....................................  [Reserved].
5.3(a).................................  New.
5.3(b)(1)..............................  Second and third sentences of
                                          3.102.
5.3(b)(2)..............................  Fourth and sixth sentences of
                                          3.102.
5.3(b)(3)..............................  Seventh sentence of 3.102.
5.3(c) and (d).........................  New.
5.4(a).................................  3.103(a), second sentence.
5.4(b).................................  First sentence of 3.102;
                                          3.103(a), second sentence.
------------------------------------------------------------------------

    Readers who use this table to compare existing regulatory 
provisions with the proposed provisions, and who observe a substantive 
difference between them, should consult the text that appears later in 
this document for an explanation of significant changes in each 
regulation. Not every paragraph of every current part 3 section 
regarding the subject matter of this rulemaking is accounted for in the 
table. In some instances, other portions of the part 3 sections that 
are addressed in these proposed regulations will appear in subparts of 
part 5 that are being published separately for public comment. For 
example, a reader might find a reference to paragraph (a) of a part 3 
section in the table, but no reference to paragraph (b) of that section 
because paragraph (b) will be addressed in a separate NPRM. The table 
also does not include provisions from part 3 regulations that will not 
be repeated in part 5. Such provisions are discussed specifically under 
the appropriate part 5 heading in this preamble. Readers are invited to 
comment on the proposed part 5 provisions and also on our proposals to 
omit those part 3 provisions from part 5.

Content of Proposed Regulations

5.0 Scope of Applicability

    The first proposed regulation in this NPRM is a new general scope 
provision. The regulation informs readers that, except as otherwise 
provided, the provisions of the regulations in proposed part 5 apply 
only to benefits governed by part 5.
    We are aware that some parts of 38 CFR that do not relate to 
benefits governed by part 5 may rely expressly or implicitly on certain 
part 3 regulations and that part 3 will eventually be superceded by 
part 5. As part of the Project, VA will determine whether adjustments 
in other parts are necessary to specifically adopt part 5 regulations 
by reference, or whether to add equivalent regulations to other parts 
to ensure continued coverage after part 3 is removed from title 38, 
CFR. We anticipate that we will make the determination regarding other 
parts of title 38, CFR, on or about the time that the final version of 
part 5 is adopted.
    We propose not to carry forward the scope provision in current 
Sec.  3.2100, which applies only to the provisions in subpart D of part 
3, because the content of that provision would be subsumed by proposed 
Sec.  5.0.

5.1 General Definitions

    The next proposed regulation in this NPRM is based primarily on 
current Sec.  3.1 and includes definitions of words and phrases 
commonly used in proposed part 5. Some of the definitions in current 
Sec.  3.1 would simply be rewritten in proposed Sec.  5.1 to provide 
the same information in a more logically organized form. Some proposed 
definitions are new. Some current Sec.  3.1 definitions are not 
addressed in proposed Sec.  5.1 because we propose to incorporate them 
into new part 5 subparts dealing with specific types of benefits. 
(Those definitions will be, or have already been, addressed in other 
NPRMs.) All terms defined in proposed Sec.  5.1 would be arranged in 
alphabetical order.
    Proposed Sec.  5.1 provides a general definition for ``active 
military service.'' We propose to use this term in lieu of the longer 
term ``active military, naval, and air service'' used in 38 U.S.C. 
101(24) and current part 3 for simplicity with no change in meaning. We 
have also included a cross-reference to proposed Sec.  5.21, the 
section that describes service VA recognizes as active military 
service. See 69 FR 4820, 4833 (Jan. 30, 2004).
    Proposed Sec.  5.1 includes the following definition of the term 
``agency of original jurisdiction'': ``Agency of original jurisdiction 
means the VA activity that is responsible for making the initial 
determination on an issue affecting a claimant's or beneficiary's right 
to benefits.'' We note that this definition differs somewhat from a 
definition of the same term in 38 CFR 20.3(a) which reads as 
follows:``Agency of original jurisdiction means the Department of 
Veterans Affairs activity or administration, that is, the Veterans 
Benefits Administration, Veterans Health Administration, or National 
Cemetery Administration, that made the initial determination on a 
claim.'' The difference is because of the narrower scope of part 5 and 
because the definitions in Sec.  20.3 are geared to an appellate 
context while the definitions in proposed Sec.  5.1 are not.
    Proposed Sec.  5.1 provides the definition of the term ``alien,'' 
which appears several times throughout current part 3, but it is not 
defined in current part 3 or in title 38, United States Code. Such a 
definition is contained in chapter 12, ``Immigration And Nationality, 
General Provisions,'' of title 8, ``Aliens And Nationality,'' of the 
United States Code. ``Alien'' is defined in 8 U.S.C. 1101(a)(3) as 
``any person not a citizen or national of the United States.'' We 
propose to adopt this definition for part 5. It is simple and clear and 
is the definition used in the U.S.C. title primarily applicable to 
determinations of immigration and nationality matters by the United 
States.
    Proposed Sec.  5.1 defines ``beneficiary'' as ``an individual in 
receipt of benefits under any of the laws administered by VA.''
    We propose to define ``benefit'' as ``any payment, service, 
commodity, function, or status, entitlement to which is determined 
under laws administered by VA pertaining to veterans and their 
dependents and survivors.'' The definition of ``benefit'' parallels the 
definition of that term at 38 CFR 20.3(e).
    Proposed Sec.  5.1 defines a ``certified statement,'' another 
undefined term used in current part 3, as a ``statement made and signed 
by an individual who affirms that the statement's content is true and 
accurate to the best of that individual's knowledge and belief.'' This 
is consistent with VA usage and

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consistent with the common understanding of that term. For example, see 
the definition of ``certify'', Black's Law Dictionary 220 (7th ed. 
1999), ``1. To authenticate or verify in writing. 2. To attest as being 
true or as meeting certain criteria.''
    Proposed Sec.  5.1 next addresses the concepts of ``child born of 
the marriage'' and ``child born before the marriage.'' The recognition 
of an individual as the veteran's surviving spouse can turn on whether 
a child was born of his or her marriage to the veteran, or was born to 
the veteran and the surviving spouse before their marriage. See 38 
U.S.C. 103(a) (concerning claims from spouses who entered into a 
marriage with a veteran without knowledge of a legal impediment to the 
marriage); 1102(a) (concerning marriage requirements for death 
compensation); 1304 and 1318(c) (concerning marriage requirements for 
dependency and indemnity compensation); 1532(d), 1534(c), 1536(c), and 
1541(f) (concerning marriage requirements for various pension 
benefits). The proposed definition is based on current Sec.  3.54(d) 
with the clarification that adopted children and stepchildren are not 
included in these terms, for the following reasons.
    The United States Court of Appeals for Veterans Claims (CAVC) 
interpreted the language ``child born of the marriage'' and ``child 
born before the marriage'' in the context of a claim for pension under 
chapter 15, title 38, United States Code, as follows:

    Applying the ``fundamental canon of statutory construction'' 
that ``unless otherwise defined, words will be interpreted as taking 
their ordinary, contemporary, common meaning'' * * * , the statutory 
phrase ``child * * * born of the marriage'' of Sec.  1541(f)(3) 
cannot be expanded by the B[oard of Veterans Appeals] or this Court 
to read ``child * * * born of or adopted during the marriage''. When 
a statute is clear and unambiguous, and a term of that statute is 
``plain on the face of the statute, our statutory inquiry is at an 
end.'' * * * An adopted child is not a ``child * * * born of the 
marriage'' for the purpose of determining whether a surviving spouse 
is qualified for a pension under 38 U.S.C. 1541 and 38 CFR 3.54.

Tapuro v. Derwinski, 2 Vet. App. 154, 155 (1992) (citations omitted). 
The Court has clearly construed the relevant statutory language to 
exclude adopted children in the context of 38 U.S.C. 1541, and 
identical language appears in the other statutes governing the benefits 
to which the proposed regulation applies, i.e., to 38 U.S.C. 103(a), 
1102(a), 1304, 1318(c), 1532(d), 1534(c), 1536(c) and 1541(f). 
Therefore, we propose to adopt the CAVC's interpretation in proposed 
Sec.  5.1. Following the Court's logic, which is sound, we also propose 
to clarify that stepchildren are not included. Clearly, a stepchild 
cannot be a ``child * * * born of the marriage'' between a veteran and 
his or her spouse.
    The definition of ``claimant'' in proposed Sec.  5.1, ``any 
individual applying for, or submitting a claim for, any benefit under 
the laws administered by VA,'' is based on the statutory definition of 
that term found at 38 U.S.C. 5100, ``Definition of `claimant'.''
    Proposed Sec.  5.1 provides a definition of the term ``competent 
evidence.'' Since the process of adjudicating claims is not 
adversarial, VA is not concerned with the technical ``admissibility'' 
of evidence and does not exclude any evidence from the record (as we 
propose to remind readers in a note associated with the proposed 
definition). However, VA must evaluate the probative value of evidence. 
One of the qualities upon which VA evaluates whether evidence is 
probative is whether or not it is ``competent.'' Basically, this means 
that VA evaluates evidence on whether its source was someone who had a 
sound basis for stating the opinion or reporting the facts contained in 
the evidence.
    The new proposed definition would specify that competent evidence 
is evidence of one of two types, ``competent expert evidence'' or 
``competent lay evidence.'' In that respect, this new definition is 
similar to Sec.  3.159(a)(1) and (2), which distinguishes between 
``competent medical evidence'' and ``competent lay evidence.'' However, 
instead of defining ``competent medical evidence,'' paragraph (1) of 
the proposed definition defines ``competent expert evidence,'' which 
would be evidence that must be provided by someone with specialized 
education, training, or experience. ``Expert evidence'' is sufficiently 
broad to encompass requiring a valid foundation for any evidence, not 
just medical evidence, which is based on special technical expertise. 
Examples might include such things as opinions from a handwriting 
analysis expert or an accident reconstruction expert.
    Paragraph (2) of the proposed definition defines ``competent lay 
evidence.'' It is substantively similar to the definition of the same 
term in current Sec.  3.159(a)(2) in most respects. However, we propose 
to add that to be competent the lay evidence must be provided by a 
person who has personal knowledge of the facts or circumstances 
addressed by the evidence. Mere hearsay would not be competent 
evidence. ``It bears repeating that [lay] testimony is competent only 
so long as it remains centered upon matters within the knowledge and 
personal observations of the witness. Should the testimony stray from 
this basic principle and begin to address, for example, medical 
causation, that portion of the testimony addressing the issue of 
medical causation is not competent.'' Layno v. Brown, 6 Vet.App. 465, 
470 (1994). We also propose to state that a lay person is a person 
without relevant specialized education, training, or experience. A 
person could be an expert in a field unrelated to the subject matter of 
the evidence at hand and still be considered to be a ``lay person'' in 
the context of evaluating the competency of that evidence. For example, 
with respect to evaluating a medical opinion provided by a witness 
without medical training, that person would be considered to be a lay 
person even though he or she might have the credentials to provide 
expert evidence concerning structural engineering.
    Proposed Sec.  5.1 defines direct service connection in language 
consistent with VA's traditional usage. ``Direct service connection'' 
is a term commonly used in veterans law. For example, the term is used 
in the titles of current Sec. Sec.  3.304 and 3.305. However, it is not 
specifically defined anywhere in current part 3. The term ``direct 
service connection'' is commonly used within VA to distinguish service 
connection granted on the basis of evidence showing that a disease or 
injury was incurred in or aggravated in line of duty during active 
military service from service connection granted on the basis of a 
presumption; service connection for a disease or injury that is 
secondary to another service-connected disease or injury; or service 
connection based on aggravation of a nonservice-connected disability by 
a service-connected disability. For that reason, the proposed 
definition clarifies that direct service connection is ``established 
without consideration of presumptions of service connection in subpart 
E of this part or secondary service connection under Sec.  3.310 of 
this chapter.''
    Currently, Sec.  3.310(a) provides that except as provided in Sec.  
3.300(c), disability which is proximately due to or the result of a 
service-connected disease or injury shall be service connected. When 
service connection is thus established for a secondary condition, the 
secondary condition shall be considered a part of the original 
condition.
    The holding of Allen v. Brown, 7 Vet.App. 439, 448 (1995), states 
that when aggravation of a nonservice-connected disability is 
proximately due to or the result of a service-connected disability, the 
veteran is entitled to

[[Page 16468]]

compensation for the degree of disability over and above the disability 
in existence prior to the aggravation.
    In order to conform Sec.  3.310 to this judicial precedent, VA 
drafted a proposed regulation entitled ``Claims Based on Aggravation of 
a Nonservice-Connected Disability,'' an amendment that reflects the 
principles stated in Allen, supra. 62 FR 30547 (1997). In referencing 
Sec.  3.310 in our definition for direct service connection we intend 
to include the principles stated in that proposed amendment, which we 
anticipate will be issued as a final rule in the near future.
    Proposed Sec.  5.1 includes an expanded definition of ``discharged 
or released from active military service.'' The current definition of 
that term in Sec.  3.1(h) simply notes that discharge or release 
includes retirement from the active military, naval, or air service. 
This concept, which is based on 38 U.S.C. 101(18)(A), would be retained 
in paragraph (1) of the proposed definition.
    However, under 38 U.S.C. 101(18)(B), ``discharge or release'' also 
includes the following:

    [T]he satisfactory completion of the period of active military, 
naval, or air service for which a person was obligated at the time 
of entry into such service in the case of a person who, due to 
enlistment or reenlistment, was not awarded a discharge or release 
from such period of service at the time of such completion thereof 
and who, at such time, would otherwise have been eligible for the 
award of a discharge or release under conditions other than 
dishonorable.

    Paragraph (2) of the proposed definition of ``discharge or 
release'' restates this aspect of the definition in somewhat simpler 
language. It also substitutes the phrase ``intervening change in 
military status'' for the statutory phrase ``enlistment or 
reenlistment.'' ``Change in military status'' is defined in Sec.  5.37, 
``Effect of extension of service obligation due to change in military 
status on eligibility for VA benefits.'' See 69 FR 4820 (Jan. 30, 2004) 
for a full explanation of the meaning of the term, its relationship to 
38 U.S.C. 101(18)(B) as interpreted by VA, and the text of proposed 
Sec.  5.37.
    Proposed Sec.  5.1 includes a definition of the term ``final 
decision.'' The proposed definition, which is similar to the definition 
of ``finally adjudicated claim'' in current Sec.  3.160(d), provides 
that a decision on a claim for VA benefits is final if VA provides 
notice of that decision and the claimant either does not initiate and 
complete a timely appeal or the Board of Veterans' Appeals issues a 
final decision on the claim. The definition includes references to the 
relevant regulations outlining the notice requirement and the 
applicable steps in the administrative appellate process.
    Proposed Sec.  5.1 defines the term ``former prisoner of war 
(former POW)'' and is based on portions of current Sec.  3.1(y). 
Portions of Sec.  3.1(y) that contain substantive rules concerning 
proof of POW status will be addressed in another regulation in a 
separate NPRM.
    Proposed Sec.  5.1 provides definitions for the term ``fraud,'' 
which vary depending upon context. It is derived from current 
Sec. Sec.  3.1(aa) and 3.901(a).
    Although the definition of ``fraud'' in current Sec.  3.901(a) 
appears in a regulation dealing with forfeiture for fraud, it is an 
accurate general definition that need not be confined to the forfeiture 
context. Therefore, we propose it as a general definition of fraud in 
paragraph (1) of the Sec.  5.1 definition of fraud.
    Current Sec.  3.1(aa)(1) references fraud ``[a]s used in 38 U.S.C. 
103 and implementing regulations.'' Current Sec.  3.1(aa)(2) references 
fraud ``[a]s used in 38 U.S.C. 110 and 1159 and implementing 
regulations.'' We believe it would be much more useful to regulation 
users to directly reference the regulations that implement the cited 
statutes, rather than to reference the statutes and their unidentified 
``implementing regulations.'' Therefore we have made this change in 
paragraphs (2) and (3) of the proposed definition of fraud.
    Current Sec.  3.1(t) defines ``in the waters adjacent thereto.'' 
This definition applies only to the definition of a period of war known 
as the ``Mexican Border Period'' defined in current Sec.  3.2(h) and in 
proposed Sec.  5.20(a). (For the text of the latter, see 69 FR 4820, 
4832 (Jan. 30, 2004).) We propose no substantive change to the 
definition, but the definition in Sec.  5.1 is of ``in the waters 
adjacent to Mexico,'' rather than of ``in the waters adjacent 
thereto,'' to conform to revisions to Sec.  5.20(a). We intend no 
substantive change.
    In Sec.  5.1 we propose to define insanity in the context of 
insanity as a defense to commission of an act. The standard for 
determining insanity for purposes of administering VA benefits is 
contained in current 38 CFR 3.354(a), which states ``An insane person 
is one who, while not mentally defective or constitutionally 
psychopathic, except when a psychosis has been engrafted upon such 
basic condition, exhibits, due to disease, a more or less prolonged 
deviation from his normal method of behavior; or who interferes with 
the peace of society; or who has so departed (become antisocial) from 
the accepted standards of the community to which by birth and education 
he belongs as to lack the adaptability to make further adjustment to 
the social customs of the community in which he resides.''
    This standard is difficult to apply and has not met with judicial 
favor. For example, in Zang v. Brown, 8 Vet. App. 246 (1995), the CAVC 
stated that the regulation is ``less than clear given its obvious 
drafting defects,'' id. at 252; that ``a literal interpretation of the 
regulation would produce an illogical and absurd result that could not 
have been intended by the Secretary,'' id. at 253; and that the 
regulation ``illustrates still another `confusing tapestry''' of VA 
regulations. Id. at 256 (Steinberg, J., separate views).
    However, the CAVC commented favorably in Cropper v. Brown, 6 Vet. 
App. 450 (1994), on VA's application of the insanity defense 
articulated in a now-superseded section of VA Adjudication Procedure 
Manual M21-1. In Cropper, the Court stated:

    Thus, [38 U.S.C. 5303(b)] sets out the authority for allowing 
veterans benefits where a party has received an [other than 
honorable (OTH)] discharge but has been adjudged insane, and [38 CFR 
3.354] simply define[s] the term ``insanity.'' It is the VA 
ADJUDICATION PROCEDURE MANUAL, Part IV, Sec. Sec.  11.01, 11.04, 
11.05 (Apr. 3, 1992) and Part VI, Sec.  4.10 (Sept. 21, 1992), which 
sets out the application of the insanity defense and the application 
of the definition of insanity. The M21-1 Manual defines insanity as 
``whether, at the time of commission of the act(s), the veteran was 
laboring under such a defect of reason, from disease or mental 
deficiency, as not to know or understand the nature or consequence 
of the act(s) or that what he or she was doing was wrong.'' M21-1 
Part VI, Sec.  4.10(c); see also M21-1 Part IV, Sec.  
11.10(d)(2)(a)-(b) (Apr. 3, 1992) (for purposes of considering 
factors in wrongful and intentional killing cases, it defines 
insanity as a condition when, ``at the time of commission of the 
act, the party accused was laboring under such a defect of reason, 
from disease of mind or mental deficiency, that he or she did not 
know the nature and consequence of the act or * * * [i]f known, that 
the claimant did not perceive the act as wrong''). We find this 
provision to be consistent with both the statute and the regulation 
because it serves to limit the use of the insanity defense to those 
situations where the acts leading to the discharge were the result 
of insanity. Thus, the M21-1 Manual provision allows the insanity 
defense only where it should be most properly applied. That is, the 
defense may not be used where a claimant has received an OTH 
discharge due to acts of misconduct over which he ultimately had 
control but failed, in fact, to control. Conversely, the defense may 
be used properly where the claimant has received a dishonorable 
discharge due to some ``defect of reason, from disease or mental 
deficiency,'' which is beyond his control.

Cropper, 6 Vet. App. at 453.

[[Page 16469]]

    We propose to adopt a definition of insanity based on the 
definition approved by the CAVC in Cropper, and to make that definition 
applicable to all cases where an insanity determination may provide ``a 
defense to a commission of an act'' (as opposed to limiting the 
definition to the issue in Cropper, i.e., cases where insanity led to 
an act causing an OTH discharge). This definition has the advantage of 
incorporating a concept long familiar to the law. The law has 
recognized since at least the mid-19th century that a person should not 
be held criminally responsible for his or her behavior if that person 
was ``insane'' at the time of committing a crime. M'Naghten's Case, 8 
Eng.Rep. 718 (1843). In addition, the definition we propose is similar 
to the following insanity-defense test endorsed by the American 
Psychiatric Association: ``A person charged with a criminal offense 
should be found not guilty by reason of insanity if it is shown that as 
a result of mental disease or mental retardation he was unable to 
appreciate the wrongfulness of his conduct at the time of the 
offense.'' The Insanity Defense, American Psychiatric Association, at 
https://www.psych.org/edu/other_res/lib_archives/archives/198202.pdf.
    We propose to supplement the definition of ``insanity'' discussed 
by the CAVC in Cropper by adding injury to the list of potential 
sources of impairment of the ability to reason responsibly. For 
example, brain trauma can produce severe mental impairment.
    Current Sec.  3.303(c) states that a personality disorder is not a 
disease or injury for VA disability purposes. We anticipate that part 5 
will have a counterpart to Sec.  3.303(c).) In addition, a personality 
disorder is not mental deficiency. Our proposed definition of insanity 
requires that a person be laboring under a defect of reason resulting 
from injury, disease, or mental deficiency. Therefore, we propose to 
add in proposed Sec.  5.1, an additional sentence explicitly stating 
that behavior attributable to a personality disorder does not satisfy 
the definition of insanity.
    Accordingly, we propose to provide in Sec.  5.1 that insanity, as a 
defense to commission of an act, means a person was laboring under such 
a defect of reason resulting from injury, disease, or mental deficiency 
as not to know or understand the nature or consequence of the act, or 
that what he or she was doing was wrong. Behavior that is attributable 
to a personality disorder does not satisfy the definition of insanity.
    The definition of ``insanity'' in proposed Sec.  5.1 is quite 
different from the definition in Sec.  3.354. We have previously 
referenced the Sec.  3.354 regulatory definition of insanity in Sec.  
5.33, ``Insanity as a defense to acts leading to a discharge or 
dismissal from the service that might be disqualifying for VA 
benefits.'' 69 FR 4820, 4839 (Jan. 30, 2004). We explained, however, 
that the definition of ``insanity'' would be revised and published for 
comment as a proposed part 5 regulation. Accordingly, we intend that 
when proposed Sec.  5.33 is issued as a final rule, it will cross 
reference Sec.  5.1 rather than Sec.  3.354. Readers are invited to 
comment at this time on the effect of Sec.  5.1 on Sec.  5.33. We do 
not anticipate or intend any effect on insanity determinations by VA.
    The proposed definition of ``notice'' in Sec.  5.1 is based on 
current Sec.  3.1(q). We propose to add that, if a claimant or 
beneficiary is represented, the notice must also be sent to the 
representative. See 38 U.S.C. 5104(a) (requiring that notice of a 
decision affecting the provision of benefits to a claimant be provided 
to the claimant's representative). We also propose to require that if a 
claimant or beneficiary has a fiduciary, notice must also be sent to 
the fiduciary.
    Proposed Sec.  5.1 defines ``on the borders of Mexico,'' with 
regard to service during the Mexican border period, by listing 
applicable border States and countries. The definition is based on the 
definition of ``on the borders thereof'' in current Sec.  3.1(s), which 
includes British Honduras. British Honduras is now Belize. The proposed 
definition includes the current name of that nation. We have defined 
``on the borders of Mexico,'' rather than ``on the borders thereof,'' 
to conform to revisions to proposed Sec.  5.20(a).
    Proposed Sec.  5.1 includes a definition of a ``political 
subdivision of the United States'' that is based on the definition in 
current Sec.  3.1(o). The definition in current Sec.  3.1(o) states 
that a ``[p]olitical subdivision of the United States includes the 
jurisdiction defined as a State in paragraph (i) of this section, and 
the counties, cities or municipalities of each.'' The word ``includes'' 
suggests that this is a partial list. We propose to omit it in the new 
definition, because, with one possible exception, that is not the case. 
(Note that the definition includes ``a State'' and that the definition 
of ``State'' brings in ``the several States, Territories, and 
possessions of the United States; the District of Columbia; and the 
Commonwealth of Puerto Rico.'') The possible exception is that the 
current definition includes counties, but not parishes. Parishes in 
Louisiana are the equivalent of counties in other states. Therefore, we 
propose to define a political subdivision of the United States as ``the 
jurisdictions defined as a State and the counties (or parishes), cities 
or municipalities of each.''
    Proposed Sec.  5.1 departs from the definition of ``reserve'' in 
current Sec.  3.1(c) in three respects. First, it would change 
``reserves'' to ``reserve,'' as is the case in 38 U.S.C. 101(26). This 
is not a substantive change. Second, it would define ``reserve or 
reservist.'' ``Reservist'' is a more commonly used word with the same 
meaning. Finally, we propose to shorten the current ``Reserve component 
of one of the Armed Forces'' to just ``reserve component.'' ``[O]f one 
of the Armed Forces'' is redundant because of the way that reserve 
component is defined in Sec.  5.1.
    Proposed Sec.  5.1 carries forward the current definition of 
``Secretary concerned'' in Sec.  3.1(g) with one revision. The Coast 
Guard is now under the jurisdiction of the Secretary of Homeland 
Security, not the Secretary of Transportation. See Public Law 107-296, 
Sec.  888(b), 116 Stat. 2135.
    Proposed Sec.  5.1 defines ``service medical records'' as ``records 
of medical treatment or medical examination provided by the Armed 
Forces to either an applicant for membership into, or a member of, the 
Armed Forces.'' We are aware that, for a variety of reasons, the Armed 
Forces may provide a service member with medical care through civilian 
resources. Therefore, the proposed definition also provides that 
service medical records ``include records of medical examination and 
treatment by a civilian health care provider at Armed Forces' 
expense.''
    Proposed Sec.  5.1 defines ``uniformed services.'' As with the 
several other new terms we have defined, the term ``uniformed 
services'' (or ``uniformed service'') is used in current part 3, but is 
not defined. See 38 CFR 3.157, 3.211, and 3.804 (all using the term 
``uniformed service'' or ``uniformed services''). The statute that 
contains the definitions generally applicable to title 38 United States 
Code (38 U.S.C. 101), does not include a definition of ``uniformed 
services.'' However, there is a definition in 38 U.S.C. chapter 43, 
``Employment and Reemployment Rights of Members of the Uniformed 
Services.'' See 38 U.S.C. 4303(16). We propose to adopt this definition 
for part 5.
    Proposed Sec.  5.1 defines ``veteran.'' This definition is based on 
the definition in current Sec.  3.1(d) and largely mirrors that 
provision except that we propose to

[[Page 16470]]

slightly modify the language of current Sec.  3.1(d)(1) (pertaining to 
the definition of a veteran for purposes of DIC or death compensation).
    The current provision, Sec.  3.1(d)(1), reads: ``For compensation 
and dependency and indemnity compensation the term veteran includes a 
person who died in active service and whose death was not due to 
willful misconduct.'' The language specifying that this alternative 
definition of veteran applies to cases of death compensation and DIC is 
unnecessary. Eligibility criteria for various benefits are contained in 
separate provisions. The key issue is whether a veteran by definition 
may only be a person who was alive when he or she was discharged from 
active military service, or whether a veteran can also be a person who 
died in active military service. Therefore proposed Sec.  5.1 will 
simply provide ``The term veteran also includes a person who died in 
active service and whose death was not due to willful misconduct.''
    We also propose to add a cross-reference to the regulation that 
defines ``willful misconduct,'' and to add a cross-reference (which 
concerns the meaning of ``veteran'' in the context of death pension 
claims) to the subpart of proposed part 5 that deals with pension 
eligibility.
    Current Sec.  3.1(e) defines ``veteran of any war.'' We have not 
included a similar definition in Sec.  5.1 because we anticipate that 
the term would be used, at most, in one part 5 regulation. If that 
should be the case, the definition could be included in that 
regulation.

5.2 [Reserved]

    Proposed Sec.  5.1 contains definitions applicable throughout part 
5, but proposed part 5 will also contain a number of definitions that 
are more limited in scope. In keeping with our goal of locating 
information applicable to specific programs together in one subpart of 
proposed part 5 to the extent possible, definitions that apply to 
specific VA programs and procedures would be located in subparts of 
proposed part 5 that deal with those programs and procedures. We do not 
currently know with certainty what all of those definitions will be and 
where they will be located because some proposed part 5 subparts are 
still in development. We have reserved proposed Sec.  5.2 as the future 
location for a convenient cross-reference table to assist claimants, 
beneficiaries, and VA staff in locating these definitions in other 
subparts of part 5. We plan to publish Sec.  5.2 for notice and comment 
in a future NPRM issued for the Project.

5.3 Standards of proof.

    The next regulation in this NPRM, proposed Sec.  5.3, addresses the 
standards of proof used in the adjudication of claims for VA benefits. 
New proposed Sec.  5.3(a), ``Applicability,'' explains that Sec.  5.3 
states the general standards of proof for proving facts and rebutting 
presumptions and that these standards apply unless a statute or another 
regulation specifically provides otherwise. For example, 38 U.S.C. 1111 
requires ``clear and unmistakable evidence'' that an injury or disease 
existed before acceptance and enrollment for service and was not 
aggravated by service to rebut the presumption that a veteran was in 
sound condition when examined, accepted, and enrolled for service. 
Accordingly the default standard in Sec.  5.3(b) for rebutting a 
presumption would not apply because there is a statute that 
specifically provides another standard.
    Proposed Sec.  5.3(b) addresses the default standard for proving a 
specific fact or facts material to the determination of a claim. The 
relevant statute, 38 U.S.C. 5107(b), specifies that in cases where 
``there is an approximate balance of positive and negative evidence 
regarding any issue material to the determination of a matter, [VA] 
shall give the benefit of the doubt to the claimant.'' This language 
has been interpreted to mean, essentially, that when there is a balance 
of evidence for and against the existence of a fact, and proof of that 
fact would support a veteran's claim, VA must consider the fact proven. 
An excellent illustration of this point may be found in Gilbert v. 
Derwinski, 1 Vet. App. 49 (1991), an early opinion by the CAVC in which 
it first considered the ``benefit of the doubt'' doctrine (then 
contained in 38 U.S.C. 3007).

    Perhaps the analogy most helpful to an understanding of the 
application of the ``benefit of the doubt'' rule was provided by 
Deputy Assistant General Counsel Mullen at oral argument when he 
stated that the ``benefit of the doubt'' standard is similar to the 
rule deeply embedded in sandlot baseball folklore that ``the tie 
goes to the runner.'' If the ball clearly beats the runner, he is 
out and the rule has no application; if the runner clearly beats the 
ball, he is safe and, again, the rule has no application; if, 
however, the play is close, then the runner is called safe by 
operation of the rule that ``the tie goes to the runner.'' * * * 
Similarly, if a fair preponderance of the evidence is against a 
veteran's claim, it will be denied and the ``benefit of the doubt'' 
rule has no application; if the veteran establishes a claim by a 
fair preponderance of the evidence, the claim will be granted and, 
again, the rule has no application; if, however, the play is close, 
i.e., ``there is an approximate balance of positive and negative 
evidence,'' the veteran prevails by operation of 38 U.S.C. 3007(b).

Gilbert, 1 Vet. App. at 55-56.
    Turning to the exact language of proposed Sec.  5.3(b), we propose 
to define ``equipoise'' in paragraph (b)(1). Although the language is 
considerably simpler than current Sec.  3.102, the definition of 
``equipoise'' that we propose is consistent with the longstanding 
explanation of the ``reasonable doubt'' doctrine in current Sec.  3.102 
concerning ``an approximate balance of positive and negative evidence 
which does not satisfactorily prove or disprove the claim.'' This 
proposed definition is that equipoise means that there is ``an 
approximate balance between the weight of the evidence for and the 
weight of the evidence against the truth of the asserted fact, such 
that it is as likely as not that the asserted fact is true.''
    Paragraph (b)(2) would require VA to apply the benefit of the doubt 
``[w]hen the evidence is in equipoise and the fact or issue to be 
proven would support a claim.'' Paragraph (b)(2) would emphasize that 
if the evidence is in equipoise and ``the fact or issue to be proven 
would not support a claim, the matter will not be considered proven.'' 
Such facts or issues must be established by a preponderance of the 
evidence. Finally, paragraph (b)(2) clarifies that the ``benefit of the 
doubt applies even in the absence of official records,'' as described 
in current Sec.  3.102. This rule is consistent with the statutory 
statement of these same principles in 38 U.S.C. 5107(b): ``When there 
is an approximate balance of positive and negative evidence regarding 
any issue material to the determination of a matter, the Secretary 
shall give the benefit of the doubt to the claimant.''
    Proposed paragraph (b)(3) would define the ``preponderance of the 
evidence'' by stating: ``A fact or issue is established by a 
preponderance of evidence when the weight of the evidence in support of 
that fact or issue is greater than the evidence in opposition to it.'' 
This definition accords with the generally accepted definition of the 
term. See Black's Law Dictionary 1064 (5th Ed., 1981).
    Proposed Sec.  5.3(b)(5) provides that the equipoise standard does 
not govern determinations as to whether evidence is new and material 
when offered to reopen a previously denied claim; instead ``VA will 
reopen a claim when the new and material evidence merely raises a 
reasonable possibility of substantiating the claim. While the explicit 
statement of this exception is new, the law underlying it is not. This

[[Page 16471]]

rule is consistent with Annoni v. Brown, 5 Vet. App. 463 (1993). In 
Annoni, the CAVC, citing Gilbert, noted that the benefit of the doubt 
rule (the equipoise standard) does not apply during the process of 
gathering evidence and that it does not shift the initial burden to 
submit a valid claim from the claimant to VA. Annoni, 5 Vet. App. at 
467. Additionally, new and material evidence determinations do not 
involve the usual weighing of ``all information and lay and medical 
evidence of record'' within the meaning of 38 U.S.C. 5107(b), but 
instead require threshold determinations of the significance of 
discrete items of evidence, which VA must presume credible and to which 
VA must give full weight. See Justus v. Principi, 3 Vet. App. 510, 513 
(1992). Such threshold determinations as to whether a claimant has 
submitted new and material evidence are governed by the standards set 
forth in 38 CFR 3.156(a).
    The default standard of proof applicable to rebuttal of a 
presumption is addressed in proposed Sec.  5.3(c). In some cases, 
Congress has specifically provided the standard of proof applicable to 
rebutting a presumption. For example, Congress has imposed rather high 
standards of proof in two circumstances. Section 1111 of title 38, 
``Presumptions of sound condition,'' requires ``clear and unmistakable 
evidence'' to rebut the presumption of sound condition upon entry into 
military service. Section 1154(b) of title 38 requires ``clear and 
convincing evidence'' to rebut a combat veteran's satisfactory evidence 
of combat incurrence of a disease or injury. The question remains as to 
what standard of proof applies to the rebuttal of a presumption where 
Congress has not provided a specific standard.
    The Court of Appeals for the Federal Circuit addressed this issue 
recently in Thomas v. Nicholson, 423 F.3d 1279 (Fed. Cir. 2005). The 
specific issue considered by the court was determining the correct 
standard of proof for rebutting the presumption in 38 U.S.C. 105(a) 
that an injury or disease incurred during service was incurred in line 
of duty. Section 105(a) does not specify a standard. Because of the 
significance of the court's opinion in this case, we quote from it at 
length.

    The government acknowledges that Sec.  105(a) does not specify 
the evidentiary standard necessary to rebut the presumption that a 
peacetime disability was incurred in line of duty, but argues that 
Congress established the general evidentiary standard for factual 
determinations of veterans' cases in 38 U.S.C. 5107(b). The 
government urges this court to apply Sec.  5107, and the evidentiary 
standard applicable to Sec.  5107, to Sec.  105(a) in this case.
    In support, the government points out that this court in Forshey 
examined 38 U.S.C. 5107 for the purpose of determining the proper 
evidentiary standard under Sec.  105(a), although Forshey declined 
to decide whether Sec.  5107 set out a ``preponderance of evidence'' 
or ``clear and convincing'' standard. Forshey, 284 F.3d at 1351-52. 
The government therefore contends that 38 U.S.C. 5107 establishes a 
general evidentiary standard governing determinations by the Board 
on issues material to the resolution of claims which is applicable 
to Sec.  105(a) and the determination of willful misconduct for 
peacetime disabilities.
    The government further relies on language in other opinions by 
this court as support that Sec.  5107 sets out the ``preponderance 
of evidence'' standard. Although acknowledging that Sec.  5107 does 
not explicitly state an evidentiary standard, the government points 
out that this court has found that Sec.  5107(b), ``the benefit of 
the doubt rule,'' does not apply ``in cases in which the Board finds 
that a preponderance of the evidence is against the veteran's claim 
for benefits.'' Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 
2001). Furthermore, the government points to language by this court 
quoting similar language by the Veterans Court. Forshey, 284 F.3d at 
1340-41 (relying upon Gilbert v. Derwinski, 1 Vet. App. 49 (1990)).
    We need not rely on the applicability of Sec.  5107(b) alone, 
however, to reject Thomas's argument that ``clear and convincing'' 
rather than ``preponderance of the evidence'' is the proper 
evidentiary standard here. Indeed, we find as strong or stronger 
argument to be that Congress did not specifically set out that a 
heightened standard was necessary to rebut the presumption of 
service connection in Sec.  105(a) where the veteran's own willful 
misconduct or abuse of alcohol was involved.
    ``The `preponderance of the evidence' formulation is the general 
burden assigned in civil cases for factual matters.'' St. Paul Fire 
& Marine Ins. Co. v. United States, 6 F.3d 763, 769 (Fed. Cir. 
1993). The Supreme Court has explained that suits over money 
damages, as opposed to suits to deny liberty or life or individual 
interests, appropriately fall under the less stringent ``fair 
preponderance of the evidence'' standard. Santosky v. Kramer, 455 
U.S. 745, 755, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982); see also 
Gilbert, 1 Vet. App. at 53. Indeed, the normal standard in civil 
suits is the ``preponderance'' standard. The ``clear and 
convincing'' standard is ``reserved to protect particularly 
important interests in a limited number of civil cases'' where there 
is a clear liberty interest at stake, such as commitment for mental 
illness, deportation, or denaturalization. California ex rel. Cooper 
v. Mitchell 'Bros. Santa Ana Theater, 454 U.S. 90, 93, 70 L. Ed. 2d 
262, 102 S. Ct. 172 (1981); Addington v. Texas, 441 U.S. 418, 424, 
60 L. Ed. 2d 323, 99 S. Ct. 1804 (1979) (commitment for mental 
illness); Woodby v. Immigration & Naturalization Serv., 385 U.S. 
276, 285, 17 L. Ed. 2d 362, 87 S. Ct. 483 (1966) (deportation); 
Chaunt v. United States, 364 U.S. 350, 353, 5 L. Ed. 2d 120, 81 S. 
Ct. 147 (1960) (denaturalization). The liberties at stake in those 
cases are easily and clearly distinguishable from this case, where 
the issue is whether an injury was incurred by a veteran in the line 
of duty.
    It is true that Congress has established specific, heightened 
evidentiary standards for other determinations in veterans cases in 
38 U.S.C. 1111 and 1154(b). In those sections, Congress provided 
that certain decisions adverse to claimants must meet the heightened 
thresholds of either ``clear and unmistakable evidence'' or ``clear 
and convincing evidence.'' Notably, however, Congress did not 
similarly do so for determinations under Sec.  105(a), supporting 
the assertion that Congress did not intend for a higher standard to 
apply here. See Grogan v. Garner, 498 U.S. 279, 286, 112 L. Ed. 2d 
755, 111 S. Ct. 654 (1991) (finding that ``silence is inconsistent 
with the view that Congress intended to require a special, 
heightened standard of proof''); Russello v. United States, 464 U.S. 
16, 23, 78 L. Ed. 2d 17, 104 S. Ct. 296 (1983) (finding that where 
``Congress includes particular language in one section of a statute 
but omits it in another section of the same Act, it is generally 
presumed that Congress acts intentionally and purposely in the 
disparate inclusion or exclusion'') (quoting United States v. Wong 
Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972)); Cook v. Principi, 318 
F.3d 1334, 1339 (Fed. Cir. 2002) (``Applying the familiar canon of 
expressio unius est exclusio alterius, we conclude that Congress did 
not intend to allow exceptions to the rule of finality in addition 
to the two that it expressly created.''); St. Paul Fire & Marine 
Ins. Co., 6 F.3d at 768-69 (Fed. Cir. 1993) (``Given that Congress 
explicitly imposed a high burden of persuasion on the importer when 
mounting a pre-importation challenge to a Customs ruling, and given 
that subsection (b) which contains the ``clear and convincing'' 
standard follows subsection (a) in the statute, we find no reason in 
the statute or its legislative history to import the clear and 
convincing standard from subsection 2639(b) to subsection 
2639(a).'').
    Accordingly, while Thomas argues that these other statutes 
support incorporating a ``clear and convincing'' standard into Sec.  
105(a), we find the opposite to be correct. Sections 1111 and 
1154(b) implicate distinguishable circumstances to justify a 
heightened evidentiary standard. Specifically, Sec.  1111 relates to 
wartime disability compensation, creating a presumption of soundness 
only for veterans found ``to have been in sound condition when 
examined, accepted, and enrolled for service'' unless there is 
``clear and unmistakable evidence'' that the injury existed before 
service and was not aggravated by wartime service. Similarly, Sec.  
1154 relates to injuries sustained by a ``veteran who engaged in 
combat with the enemy in active service'' unless service connection 
of such injuries are ``rebutted by clear and convincing evidence.'' 
We therefore find that the absence of a heightened standard in Sec.  
105(a) supports a finding that Congress did not intend for such a 
standard to apply where the veteran's own willful misconduct or 
abuse of alcohol was involved. See Wagner

[[Page 16472]]

v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004). Thus, we find 
that preponderance of the evidence is the proper evidentiary 
standard necessary to rebut a Sec.  105(a) presumption and determine 
that a peacetime disability was the result of willful misconduct. 
Accordingly, the Veterans Court properly affirmed the Board's 
application of a preponderance of the evidence standard to rebut the 
Sec.  105(a) presumption and the Board's determination that Thomas 
did not incur his injuries in the line of duty.

    Thomas, 423 F.3d at 1282-84 (footnotes omitted).
    Although the court was specifically discussing the standard 
applicable to rebuttal of the presumption in 38 U.S.C. 105(a), the 
court's analysis clearly applies to the rebuttal of any presumption in 
those cases where Congress has not provided a specific standard. 
Therefore, Sec.  5.3(c) would adopt the preponderance standard in such 
cases.
    VA does not consider all evidence of equal weight and does not 
merely count pieces of evidence for and against an issue. That is, in 
weighing the evidence, VA is as much or more concerned with the quality 
of evidence as it is with its quantity. The CAVC stated in Gilbert that 
a determination under 38 U.S.C. 5107(b) (then 3007(b)) is ``* * * more 
qualitative than quantitative; it is one not capable of measurement 
with mathematical precision and certitude. Equal weight is not accorded 
to each piece of material contained in a record; every item of evidence 
does not have the same probative value.'' Judgments must be made * * 
*.'' Gilbert, 1 Vet. App. at 57. While this remark was made in the 
context of an exposition of the equipoise standard, we believe it is 
also applicable to the evaluation of evidence generally, as we propose 
to provide in Sec.  5.3(d).
    We propose not to include the fifth sentence of current Sec.  
3.102, which states with regard to reasonable doubt that ``[i]t is not 
a means of reconciling actual conflict or a contradiction in the 
evidence.'' The reconciliation of actual conflict between evenly 
balanced ``positive'' and ``negative'' evidence in a manner that favors 
the claimant is precisely the function of the equipoise standard. We 
therefore propose not to include this sentence because retaining it 
would be misleading.

5.4 Claims Adjudication Policies

    The final regulation in this NPRM, proposed Sec.  5.4, includes 
statements of general policy regarding claims adjudication that are 
derived from the first sentence of current Sec.  3.102 and from 
portions of current Sec.  3.103(a).
    We propose several changes. We propose to omit from Sec.  5.4 the 
last sentence of current Sec.  3.103(a), which states that ``[t]he 
provisions of this section apply to all claims for benefits and relief, 
and decisions thereon, within the purview of this part 3.'' Such a 
statement would be redundant in part 5 because of proposed Sec.  5.0.
    In proposed Sec.  5.4(a), we have provided an explanation of the 
term ``ex parte.'' This explanation notes the nonadversarial 
relationship between VA and claimants and is not a substantive change 
from the reference to ``ex parte'' in current Sec.  3.103(a).