Stressor Determinations for Posttraumatic Stress Disorder, 42617-42619 [E9-20339]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 74, Number 162 (Monday, August 24, 2009)]
[Proposed Rules]
[Pages 42617-42619]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-20339]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AN32


Stressor Determinations for Posttraumatic Stress Disorder

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its 
adjudication regulations governing service connection for posttraumatic 
stress disorder (PTSD) by liberalizing in some cases the evidentiary 
standard for establishing the required in-service stressor. This 
amendment would eliminate the requirement for corroborating that the 
claimed in-service stressor occurred if a stressor claimed by a veteran 
is related to the veteran's fear of hostile military or terrorist 
activity and a VA psychiatrist or psychologist confirms that the 
claimed stressor is adequate to support a diagnosis of PTSD, provided 
that the claimed stressor is consistent with the places, types, and 
circumstances of the veteran's service and that the veteran's symptoms 
are related to the claimed stressor.
    This amendment takes into consideration the current scientific 
research studies relating PTSD to exposure to hostile military and 
terrorist actions. It is intended to acknowledge the inherently 
stressful nature of the places, types, and circumstances of service in 
which fear of hostile military or terrorist activities is ongoing. With 
this amendment, the evidentiary standard of establishing an in-service 
stressor would be reduced in these cases. This amendment is 
additionally intended to facilitate the timely VA processing of PTSD 
claims by simplifying the development and research procedures that 
apply to these claims.

DATES: Comments must be received by VA on or before October 23, 2009.

ADDRESSES: Written comments may be submitted through https://www.Regulations.gov; by mail or hand-delivery to Director, Regulations 
Management (02REG), Department of Veterans Affairs, 810 Vermont Ave., 
NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026. 
(This is not a toll free number). Comments should indicate that they 
are submitted in response to ``RIN 2900-AN32--Stressor Determinations 
for Posttraumatic Stress Disorder.'' Copies of 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) 461-4902 for 
an appointment. (This is not a toll free number). In addition, during 
the comment period, comments may be viewed online through the Federal 
Docket Management System (FDMS) at https://www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Thomas J. Kniffen, Chief, Regulations 
Staff (211D), Compensation and Pension Service, Veterans Benefits 
Administration, Department of Veterans Affairs, 810 Vermont Avenue, 
NW., Washington, DC 20420, (202) 461-9725. (This is not a toll-free 
number.)

SUPPLEMENTARY INFORMATION: The Secretary of Veterans Affairs has 
authority under 38 U.S.C. 501(a)(1) to prescribe regulations governing 
the nature and extent of proof and evidence required to establish 
entitlement to benefits. In addition, under 38 U.S.C. 1154(a), the 
Secretary is required to ``include in the regulations pertaining to 
service-connection of disabilities'' provisions requiring ``due 
consideration'' of the places, types, and circumstances of a veteran's 
service. These statutes provide authority for this proposed amendment 
of PTSD regulations.
    Current regulations governing service connection of PTSD are 
provided at 38 CFR 3.304(f). Under this provision, service connection 
for PTSD generally requires: (1) Medical evidence diagnosing PTSD; (2) 
medical evidence establishing a link between a veteran's current 
symptoms and an in-service stressor; and (3) credible supporting 
evidence that the claimed in-service stressor occurred.
    In some cases, the requirement to establish the occurrence of the 
claimed in-service stressor can be met based on the veteran's lay 
testimony alone, provided that there is an absence of clear and 
convincing evidence to the contrary and that the claimed stressor is 
consistent with the circumstances, conditions, or hardships of the 
veteran's service. Such cases are those described under Sec.  
3.304(f)(1), when the evidence establishes a diagnosis of PTSD during 
service and the claimed stressor is related to that service; under 
Sec.  3.304(f)(2), when the evidence establishes that the veteran 
engaged in combat with the enemy and the claimed stressor is related to 
that combat; and under current Sec.  3.304(f)(3), when the evidence 
establishes that the veteran was a prisoner-of-war and the claimed

[[Page 42618]]

stressor is related to that prisoner-of-war experience. Currently, in 
all other cases where service connection for PTSD is claimed, VA 
regulations require credible supporting evidence corroborating the 
occurrence of the claimed in-service stressor before service connection 
can be established.
    VA is proposing to amend Sec.  3.304(f) by redesignating current 
paragraphs (3) and (4) as paragraphs (4) and (5) and adding a new 
paragraph (3), stating that, if a stressor claimed by a veteran is 
related to the veteran's fear of hostile military or terrorist activity 
and a VA psychiatrist or psychologist, or a psychiatrist or 
psychologist with whom VA has contracted, confirms that the claimed 
stressor is adequate to support a diagnosis of PTSD and that the 
veteran's symptoms are related to the claimed stressor, in the absence 
of clear and convincing evidence to the contrary, and provided the 
claimed stressor is consistent with the places, types, and 
circumstances of the veteran's service, the veteran's lay testimony 
alone may establish the occurrence of the claimed in-service stressor. 
VA proposes to limit the confirmation of a claimed stressor to an 
examination by a VA psychiatrist or psychologist, or a psychiatrist or 
psychologist with whom VA has contracted, to ensure standardization and 
consistency of mental health evaluations and reporting of these 
evaluations, which will be based upon uniform VA examination protocols.
    Under 38 CFR 4.125(a), all mental disorder diagnoses must conform 
to the American Psychiatric Association's Diagnostic and Statistical 
Manual of Mental Disorders, Fourth Edition (1994) (DSM-IV). According 
to DSM-IV at 427-428, the first diagnostic criterion for PTSD is:

    The person has been exposed to a traumatic event in which both 
of the following have been present:
    (1) The person experienced, witnessed, or was confronted with an 
event or events that involved actual or threatened death or serious 
injury, or a threat to the physical integrity of self or others;
    (2) The person's response involved intense fear, helplessness, 
or horror.

    The evidentiary liberalization we propose in new Sec.  3.304(f)(3) 
is consistent with DSM-IV criteria for a PTSD diagnosis, which include 
experiencing or confronting ``a threat to the physical integrity of 
self or others'' and ``intense fear, helplessness, or horror'' in 
response.
    Also consistent with DSM-IV, the proposed new Sec.  3.304(f)(3) 
defines ``fear of hostile military or terrorist activity'' to mean that 
``a veteran experienced, witnessed, or was confronted with an event or 
circumstance that involved actual or threatened death or serious 
injury, or a threat to the physical integrity of the veteran or others, 
such as from an actual or potential improvised explosive device; 
vehicle-imbedded explosive device; incoming artillery, rocket, or 
mortar fire; grenade; small arms fire, including suspected sniper fire; 
or attack upon friendly military aircraft, and the veteran's response 
to the event or circumstance involved a psychological or psycho-
physiological state of fear, helplessness, or horror.'' A claimed 
stressor must be consistent with the places, types, and circumstances 
of the veteran's service.
    Additionally, the proposed regulation change is consistent with 
scientific studies related to PTSD and military troop deployment. In 
the recently published Gulf War and Health: Volume 6, Physiologic, 
Psychologic, and Psychosocial Effects of Deployment-Related Stress 
(2008), the National Academies' Institute of Medicine (IOM) reviewed 
studies on PTSD in veterans who served in Vietnam, the Gulf War, 
Operation Enduring Freedom (OEF), and Operation Iraqi Freedom (OIF). 
The IOM review analyzed the long-term mental and physical health 
effects of ``deployment to a war zone.'' The stressors associated with 
``deployment to a war zone'' were not limited to combat because

    [A]s military conflicts have evolved to include more guerilla 
warfare and insurgent activities, restricting the definition of 
deployment-related stressors to combat may fail to acknowledge other 
potent stressors experienced by military personnel in a war zone or 
in the aftermath of combat. Those stressors include constant 
vigilance against unexpected attack, the absence of a defined front 
line, the difficulty of distinguishing enemy combatants from 
civilians, [and] the ubiquity of improvised explosive devices. * * *

(Summary, p. 2) The IOM ``considered that military personnel deployed 
to a war zone, even if direct combat was not experienced, have the 
potential for exposure to deployment-related stressors that might 
elicit a stress response.'' (Introduction, p. 13)

    Based on these IOM findings, VA is proposing to reduce the burden 
of showing the occurrence of an in-service stressor if the claimed 
stressor is related to fear of hostile military or terrorist activity, 
and is consistent with the places, types, and circumstances of the 
veteran's service. The proposed amendment is intended to reduce the 
time devoted to VA claims development and research of the claimed 
stressor that is required to adjudicate claims for service connection 
for PTSD. VA will instead rely on a veteran's lay testimony alone to 
establish occurrence of a stressor related to fear of hostile military 
or terrorist activity, provided the claimed stressor is consistent with 
the places, types, and circumstances of the veteran's service, if a VA 
mental health professional opines that the claimed stressor is adequate 
to support a diagnosis of PTSD and that the veteran's symptoms are 
related to the claimed stressor. The proposed amendment would benefit 
all veterans and would not be limited to veterans serving during the 
current OEF and OIF. Improved timeliness, consistent decision-making, 
and equitable resolution of PTSD claims are the intended results of the 
revised regulation.

Paperwork Reduction Act

    This document contains no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). The Office of 
Management and Budget has approved the collection of information 
provisions that are related to this proposed rule under OMB control 
number 2900-0001 (VA Form 21-526, Veterans Application for Compensation 
and Pension) and under OMB control number 2900-0075 (VA Form 21-4138, 
Statement in Support of Claim).

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed 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 proposed rule would not affect any small entities. 
Only VA beneficiaries could be directly affected. Therefore, pursuant 
to 5 U.S.C. 605(b), this proposed 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

[[Page 42619]]

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 proposed rule have been examined, and it has been 
determined to be a significant regulatory action under the Executive 
Order because it is likely to result in a rule that will raise novel 
legal or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in the Executive Order.

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 the 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 proposed rule would have no such 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: June 29, 2009.
John R. Gingrich,
Chief of Staff, Department of Veterans Affairs.

    For the reasons set out in the preamble, VA proposes to amend 38 
CFR part 3 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. Amend Sec.  3.304 as follows.
    a. Revise the introductory text of paragraph (f).
    b. Redesignate paragraphs (f)(3) and (4) as paragraphs (f)(4) and 
(5) respectively.
    c. Add new paragraph (f)(3).
    The revision and addition read as follows:


Sec.  3.304  Direct service connection; wartime and peacetime.

* * * * *
    (f) Posttraumatic stress disorder. Service connection for 
posttraumatic 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. The following provisions apply to claims for 
service connection of posttraumatic stress disorder diagnosed during 
service or based on the specified type of claimed stressor:
* * * * *
    (3) If a stressor claimed by a veteran is related to the veteran's 
fear of hostile military or terrorist activity and a VA psychiatrist or 
psychologist, or a psychiatrist or psychologist with whom VA has 
contracted, confirms that the claimed stressor is adequate to support a 
diagnosis of posttraumatic stress disorder and that the veteran's 
symptoms are related to the claimed stressor, in the absence of clear 
and convincing evidence to the contrary, and provided the claimed 
stressor is consistent with the places, types, and circumstances of the 
veteran's service, the veteran's lay testimony alone may establish the 
occurrence of the claimed in-service stressor. For purposes of this 
paragraph, ``fear of hostile military or terrorist activity'' means 
that a veteran experienced, witnessed, or was confronted with an event 
or circumstance that involved actual or threatened death or serious 
injury, or a threat to the physical integrity of the veteran or others, 
such as from an actual or potential improvised explosive device; 
vehicle-imbedded explosive device; incoming artillery, rocket, or 
mortar fire; grenade; small arms fire, including suspected sniper fire; 
or attack upon friendly military aircraft, and the veteran's response 
to the event or circumstance involved a psychological or psycho-
physiological state of fear, helplessness, or horror.
* * * * *
[FR Doc. E9-20339 Filed 8-21-09; 8:45 am]
BILLING CODE 8320-01-P