Notice of Information and Evidence Necessary To Substantiate Claim, 65702-65719 [E9-29459]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 74, Number 237 (Friday, December 11, 2009)]
[Proposed Rules]
[Pages 65702-65719]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-29459]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AN46


Notice of Information and Evidence Necessary To Substantiate 
Claim

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its 
regulations regarding VA's duty to notify a claimant of the information 
and evidence necessary to substantiate a claim. The purpose of this 
amendment is to implement the Veterans' Benefits Improvement Act of 
2008, which requires the Secretary of Veterans Affairs to prescribe in 
regulations requirements relating to the content of notice to be 
provided to claimants for veterans benefits, including different 
content for notice based on the type of claim filed, the type of 
benefits or services sought under the claim, and the general 
information and evidence required to substantiate the basic elements of 
each type of claim.

DATES: Comments must be received by VA on or before February 9, 2010.

ADDRESSES: Written comments may be submitted through 
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-AN46--Notice of Information and 
Evidence to Substantiate Claim.'' 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

[[Page 65703]]

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: This proposed rule is necessary to implement 
the Veterans' Benefits Improvement Act of 2008, Public Law 110-389, 122 
Stat. 4145, 4147. Section 101(a)(1) of the Act redesignated former 38 
U.S.C. 5103(a) as 38 U.S.C. 5103(a)(1) but made no change to its 
language. 122 Stat. 4147. Section 5103(a)(1) continues to require VA to 
notify a claimant for veterans benefits of the information and evidence 
not previously provided to the Department that is necessary to 
substantiate a claim and of the respective responsibilities of VA and 
the claimant in obtaining various portions of the evidence. The United 
States Court of Appeals for the Federal Circuit (Federal Circuit) has 
held that section 5103(a)(1) ``on its face does not address the level 
of required detail'' in the notice provided and ``must be interpreted 
as requiring only generic notice at the outset.'' Wilson v. Mansfield, 
506 F.3d 1055, 1059-60 (Fed. Cir. 2007). The Federal Circuit explained 
that ``generic notice'', refers to notice that ``identif[ies] the 
information and evidence necessary to substantiate the particular type 
of claim being asserted'' by a claimant. Id. In Angel Vazquez-Flores v. 
Eric K. Shinseki, Secretary of Veterans Affairs, and Michael R. Schultz 
v. Eric K. Shinseki, Secretary of Veterans Affairs, Nos. 2008-7150 & 
2008-7115, 2009 WL 2835434, *6 (Fed. Cir. Sept. 4, 2009), the Federal 
Circuit stated that the term ``particular type of claim'' refers to the 
type of claim filed, e.g., claim for service connection or an increased 
rating. See also Wilson, 506 F.3d at 1059-60; Paralyzed Veterans of Am. 
v. Secretary of Veterans Affairs, 345 F.3d 1334, 1347 (Fed. Cir. 2003).
    Section 101(a)(2) of Public Law 110-389 amends 38 U.S.C. 5103(a) by 
adding subsection (a)(2), requiring the Secretary of Veterans Affairs 
to prescribe in regulations requirements relating to the content of 
notice to be provided under section 5103(a). VA's regulations must 
specify ``different contents'' for notice based on the type of claim 
filed (e.g., original claims, reopened claims, claims for increase), 
must provide that the contents of the notice be appropriate to the type 
of benefits or services sought under the claim, and must specify the 
``general information and evidence required to substantiate the basic 
elements'' of each type of claim. Public Law 110-389, 122 Stat. 4147. 
Section 101(b) of Public Law 110-389, 112 Stat. 4147, specifies that 
the regulations will apply to notice provided to claimants on or after 
the effective date of such regulations. However, the statute does not 
specify the types of ``information and evidence'' that would be 
required for any type of claim, nor does it limit VA's authority to 
determine what types of information and evidence are necessary for that 
purpose.
    VA is proposing to amend current 38 CFR 3.159 so that it would 
pertain only to VA's duty to notify a claimant upon receipt of an 
application for veterans benefits, as required by 38 U.S.C. 5102 and 
5103. Therefore, Sec.  3.159(a)(1) and (2), (c), (d), (e), (f), and 
(g), which pertain to VA's duty to assist in developing claims under 38 
U.S.C. 5103A, rather that the duty to notify under section 5103, would 
be redesignated as new Sec.  3.167(a) through (e). We have made one 
substantive amendment to current Sec.  3.159(d)(3) which will be 
redesignated as new Sec.  3.167(c)(1). We are eliminating lack of 
veteran status as a basis upon which VA will refrain from or 
discontinue assistance under section 5103A in new section 3.167(c)(1) 
because the United States Court of Appeals for Veterans Claims 
(Veterans Court) held in Gardner v. Shinseki, 22 Vet. App. 415, 421 
(2009), that VA has a duty to assist a person who files a claim for 
veterans benefits alleging that he or she is a veteran even if the 
person has not demonstrated veteran status.
    VA provides the following assistance to develop a claimant's status 
as a veteran. Sections III through V of VA Form 21-526, Veteran's 
Application for Compensation and/or Pension, ask a veteran to provide 
information about his or her military service and to attach an original 
or certified copy of the claimant's DD214, Certification of Release or 
Discharge from Active Duty. As part of the initial screening process, 
VA conducts a routine check of the application and accompanying 
documents to determine whether the claimant has provided sufficient 
information to verify the character of discharge from military service 
and the claimed service. If the information provided is not sufficient 
to verify the claimed service or to establish the claimant's status as 
a ``veteran,'' VA assists the claimant by requesting military records 
and other relevant records, as explained in Sec.  3.167(b)(1)-(3) of 
this rulemaking, which is a recodification of current Sec.  
3.159(c)(1)-(3). VA discontinues its assistance if the Department 
determines that the claimant's service does not satisfy the 
requirements of title 38, United States Code, or the claimant does not 
submit essential information missing from the application that VA has 
requested. Also, VA will not provide assistance if no reasonable 
possibility exists that such assistance would aid in substantiating the 
claimant's status as a veteran, e.g., the claimant's DD214 shows that 
the claimant received a dishonorable discharge from service.
    Current Sec.  3.159(a)(4) defines ``event'' for purposes of current 
Sec.  3.159(c)(4)(ii), which pertains to VA's duty to assist. However, 
the term is also relevant with regard to the notice VA must provide 
regarding the elements necessary to substantiate a claim for service 
connection. We are therefore retaining the definition without 
substantive amendment as new Sec.  3.159(a)(5) and also redesignating 
it without substantive amendment as proposed new Sec.  3.167(a)(3).
    In addition to current Sec.  3.159(a)(4), VA would retain in 
amended Sec.  3.159 another definition in current Sec.  3.159(a) that 
pertains to VA's duty to notify. The current definition of 
``[s]ubstantially complete application'' in Sec.  3.159(a)(3) would be 
redesignated in new Sec.  3.159(a)(1) and we would additionally define 
the term to include an application ``identifying'' pertinent 
information. Proposed new Sec.  3.159(a)(2) would define ``[T]ype of 
claim filed'' to mean ``an original claim, claim to reopen a prior 
final decision on a claim, or a claim for increase in benefits.'' This 
regulatory definition incorporates 38 U.S.C. 5103(a)(2)(B)(i) 
identifying ``an original claim, claim for reopening a prior decision 
on a claim, [and] a claim for an increase in benefits'' as the three 
types of claims for which VA must specify different contents.
    VA would state in Sec.  3.159(a)(3) that ``[t]ype of benefit 
sought'' refers to ``the general nature of the benefits sought, such as 
disability compensation, increased compensation, dependency and 
indemnity compensation, and pension.'' The definition would not include 
``specific disabilities, theories of entitlement, or other case-
specific facts.'' Section 5103(a)(1) itself makes clear that the 
requisite notice must be provided soon after VA receives the complete 
or substantially complete application. At the juncture in the claims 
process at which VA must comply with 38 U.S.C. 5103(a)(1), VA is unable 
to provide notice that accounts for specific disabilities, theories of 
entitlement, or particular facts. VA solicits case-specific information 
and evidence by sending development letters to claimants as part of the 
Department's duty to assist in obtaining

[[Page 65704]]

evidence to substantiate claims as required by 38 U.S.C. 5103A.
    VA would redesignate without change the definition of 
``[i]nformation'' in current Sec.  3.159(a)(5) as proposed new Sec.  
3.159(a)(4).
    VA would redesignate without substantive amendment current Sec.  
3.159(f) as proposed new Sec.  3.159(b), which would state that, for 
purposes of the notice requirements in Sec. Sec.  3.159 through 3.166, 
notice to the claimant means notice to the claimant or his or her 
fiduciary, if any, as well as to his or her representative, if any.
    VA would redesignate without amendment current Sec.  3.159(b)(2) as 
proposed new Sec.  3.159(c), describing the notice that VA would 
provide upon receipt of an incomplete application.
    Proposed new Sec.  3.159(d) would address the notice VA would 
provide upon receipt of a complete or substantially complete 
application, as required by 38 U.S.C. 5103(a)(1). Proposed new Sec.  
3.159(d)(1) describes the purpose of the notice required by 38 U.S.C. 
5103(a)(1). Consistent with the plain language of 38 U.S.C. 5103(a)(1), 
which is unchanged by Public Law 110-389 and section 101(a)(2) of the 
Act, Sec.  3.159(d)(1) would explain that, upon receipt of a complete 
or substantially complete application, VA ``will provide a claimant 
with notice of the general information and types of evidence that could 
be used by VA in deciding the type of claim filed for the type of 
benefit sought.'' The first and second sentences of this paragraph 
would generally restate 38 U.S.C. 5103(a)(2)(B)(ii) and (iii).
    The third sentence of proposed Sec.  3.159(d)(1) would state that 
``VA generally will not * * * identify specific evidence necessary to 
substantiate an individual claimant's case.'' As the Federal Circuit 
explained in Vazquez-Flores, 38 U.S.C. 5103(a)(1) does not require 
veteran-specific notice. 2009 WL 2835434, *6; see also Wilson, 506 F.3d 
at 1059-60. In addition, because VA provides notice under section 
5103(a) at an early stage in the claim, VA can provide notice of the 
general types of evidence that would be needed to substantiate the 
claim for the type of benefit sought, but generally cannot at that 
stage identify specific items of evidence that may prove necessary in 
each individual case once the facts and arguments have been developed 
pursuant to VA's duty to assist. Further, any attempt to identify 
specific items of evidence would not only be potentially speculative, 
but would often require highly detailed and complex notice to account 
for the variety of facts and arguments that may be raised as the claim 
is developed.
    The report of the Senate Veterans' Affairs Committee on S. 3023, 
which was enacted as Public Law 110-389, noted that IBM Global Business 
Services found ``the current [VA notice] letter to be `long and 
complex, containing a great deal of legal language that can be 
confusing to veterans when trying to understand the process for 
completing their disability claim.' '' S. Rep. 110-449, at 8-9 (2008). 
IBM recommended that VA revise the notice letter ``to be shorter and 
more transparent,'' a conclusion that the Senate committee appeared to 
endorse. Id. at 9-10. VA formed a work group and, consistent with the 
recommendations, VA revised notice letters provided to claimants for 
compensation, pension, and death benefits to make the letters shorter 
and more specific. We believe that VA notice will be more easily read 
and understood by claimants if VA provides short, succinct notice about 
the information and evidence necessary to substantiate the type of 
claim filed and benefit sought at the initial stages of a claim and 
defers case-specific letters to the development stage of the claim. Id. 
at 78 (letter from Secretary of Veterans Affairs James B. Peake, M.D., 
dated July 8, 2008). VA currently receives more than 800,000 claims 
annually, most of which require VA to provide section 5103(a)(1) 
notice. Id. By providing generic rather than case-specific notice, the 
Department is able to respond quickly to a claimant's application for 
benefits, thereby commencing the claims-adjudication process. Id. Case-
specific notice, by contrast, is not administratively feasible and 
would only delay the process without appreciably furthering development 
of the information and evidence necessary to substantiate the claim.
    Consistent with proposed new Sec.  3.159(d)(1), we would explain in 
the proposed new Sec.  3.159(d)(2)(i) that VA will notify a claimant of 
the general type of information and evidence that is necessary to 
substantiate entitlement for the type of veterans benefits for which a 
claim was filed. Vazquez-Flores, 2009 WL 2835434, *6; Wilson, 506 F.3d 
at 1058-60.
    Proposed new Sec.  3.159(d)(2)(ii) and (iii) would explain how VA's 
notice will delineate the parties' respective obligations under 38 
U.S.C. 5103(a)(1) to obtain the information or evidence necessary to 
substantiate a claim. As set forth in Sec.  3.159(d)(2)(ii), VA will 
notify a claimant that VA will obtain records that a claimant 
adequately identifies and authorizes VA to obtain from any Federal 
agency or from any other entity or person and will provide a medical 
examination or obtain a medical opinion if necessary to decide the 
claim.
    Proposed new Sec.  3.159(d)(2)(i)(A) and (B) would state that VA 
will notify a claimant of the claimant's obligation to provide VA with 
enough information to identify and locate the records, including the 
person or entity holding the records, the approximate time frame 
covered by the records, and, in the case of medical-treatment records, 
the condition for which treatment was provided and, if necessary, to 
authorize the release to VA of existing records in a form acceptable to 
the person or entity holding the records.
    Proposed new Sec.  3.159(d)(3) would explain the circumstances 
under which VA will not provide notice under 38 U.S.C. 5301(a)(1). This 
is a restatement of current Sec.  3.159(b)(3), with one additional 
circumstance. In proposed new Sec.  3.159(d)(3)(i), we would state that 
VA will not provide notice if the claim can be granted when the initial 
application is filed. In such cases, there is no need to delay award of 
the benefit by issuing notice and waiting at least 30 days for a 
response from the claimant because VA already has the information and 
evidence necessary to grant the claim.
    Proposed new Sec.  3.159(d)(4) would provide the time period within 
which a claimant must provide the information and evidence requested by 
VA. Proposed new Sec.  3.159(d)(4)(i) and (ii) would redesignate the 
last three sentences of current Sec.  3.159(b)(1).
    We propose to redesignate current Sec. Sec.  3.160 and 3.161 as 
Sec. Sec.  3.170 and 3.171 respectively.
    Proposed new Sec.  3.160 would provide the content of the notice 
that VA will provide upon receipt of an original claim for disability 
compensation. Paragraph (a)(1) would explain that, if a veteran alleges 
disability resulting from active duty, VA will notify the veteran that 
information and evidence of the following is necessary to substantiate 
the claim: (1) A current disability, which is established by medical 
treatment records, medical opinions, and evidence from non-medical 
persons about persistent and recurrent symptoms of disability they have 
observed; (2) inservice incurrence or aggravation of an injury or 
disease, symptoms that were noted during service and that persisted 
until diagnosis of an injury or disease causing the symptoms, or an 
event in service capable of causing injury or disease, which is 
established by medical treatment records, medical opinions, and, in the 
case of certain symptoms or inservice events, evidence from non-

[[Page 65705]]

medical persons; and (3) a relationship between the inservice disease, 
injury, symptoms, or event and the veteran's current disability, which 
is generally established by medical treatment records, medical 
opinions, or by use of a legal presumption that the disability is 
related to a particular type of military service, such as detention as 
a prisoner of war, participation in a radiation-risk activity, or 
service in Vietnam or the Southwest Asia theater of operations during 
the Gulf War. Subsection (a)(1) would also explain that information and 
evidence must show the extent of current disability, which may be based 
on medical treatment records, medical opinions, statements from the 
veteran's employer about how the disability affects the veteran's 
ability to work and from other people about how the veteran's symptoms 
affect the veteran.
    VA would not provide notice of the information and evidence 
necessary to establish the claimant's status as a veteran. VA Form 21-
526, Veteran's Application for Compensation and/or Pension, solicits 
from a veteran information that enables VA to verify the veteran's 
service and character of discharge, and, under its duty to assist with 
claim development, VA requests the records necessary to verify the 
veteran's service and character of discharge from the military service 
departments. `` `Service department findings are binding on VA for 
purposes of establishing service in the U.S. Armed Forces.' '' Spencer 
v. West, 13 Vet. App. 376, 380 (2000) (quoting Duro v. Derwinski, 2 
Vet. App. 530, 532 (1992)); 38 CFR 3.203. Therefore, in most cases, 
there is no need to notify a claimant of the information and evidence 
necessary to substantiate veteran status and VA instead tailors the 
notice provided to the type of benefit sought.
    VA also would not provide notice regarding the information and 
evidence necessary to substantiate an effective date for an award of 
benefits. We recognize that the Veterans Court has held that VA must 
provide notice under 38 U.S.C. 5103(a)(1) as to all elements of a 
claim, including ``downstream elements'' such as establishing 
entitlement to an effective date. Dingess v. Nicholson, 19 Vet. App. 
473, 484 (2006), aff'd per curiam, Nos. 2006-7247 & 2006-7312, 2007 WL 
1686737 (Fed. Cir. June 5, 2007). However, we believe that, at the 
initial stage of a claim when section 5103(a)(1) notice must be 
provided, notice of the information and evidence necessary to establish 
an effective date for an award of benefits ``may be misleading and 
confusing'' to the claimant. S. Rep. 110-449, at 10. For example, it 
may lead the claimant to assume that service connection has been 
conceded and that the issue on which evidence must be submitted relates 
to the effective date. Id.
    Further, there is generally no need to notify claimants of the need 
to submit evidence relating to the effective dates of VA awards. The 
determination of an effective date of an award is governed by statute 
and there generally is no evidence that a claimant can submit to 
substantiate a particular effective date. Pursuant to 38 U.S.C. 5110, 
the effective date of an award in most circumstances is based upon the 
date of the claim for benefits, the date of separation from service, 
the date of a veteran's death, or the date a disability arose or 
worsened. The date of the claim will be a matter of record before VA 
sends notice under section 5103(a)(1). The other events upon which an 
effective date may be based generally will be established by the same 
evidence that VA obtains or requests the claimant to submit for 
purposes of establishing entitlement to the benefit sought. As noted 
above, VA routinely obtains verification of service from the service 
department, as needed, upon receipt of a complete application providing 
the necessary information. Further, at the time VA grants disability or 
death benefits and the issue of effective date therefore arises, VA 
will necessarily have obtained, pursuant to its notice under section 
5103(a)(1) and its duty to assist under section 5103A, evidence 
documenting the date of the veteran's death (in death benefit claims) 
or medical evidence concerning the diagnosis, treatment, and history of 
the veteran's disability (in disability benefit cases). There will 
seldom be circumstances where additional evidence would be relevant 
with respect to the issue of effective date. However, in the event that 
additional evidence would be relevant at the stage of proceedings in 
which VA assigns an effective date, it may be addressed in the notices 
relevant to that stage of proceedings, including notices of decisions 
and statements of the case.
    As explained in Sec.  3.160(a)(2), VA will notify a claimant who 
files a claim alleging disability based on active duty for training 
that information and evidence of the following is necessary to show 
service connection for the disability: (1) A current disability, which 
is established by medical treatment records, medical opinions, and 
evidence from non-medical persons about persistent and recurrent 
symptoms of disability they have observed; (2) disability during active 
duty for training from a disease or injury that was incurred or 
aggravated in line of duty, symptoms that were noted during active duty 
for training and that persisted until diagnosis of an injury or disease 
causing the symptoms, or an event during such training capable of 
causing injury or disease, which is generally established by medical 
treatment records, medical opinions and competent non-medical evidence 
based on personal observations; and (3) a relationship between the 
current disability and the disability suffered during active duty for 
training, which is generally established by medical treatment records 
or medical opinions. Subsection (a)(2) would also explain that the 
information and evidence must show the extent of the claimant's current 
disability, which may be based on medical treatment records, medical 
opinions, statements from the veteran's employer about how the 
disability affects the claimant's ability to work and from other people 
about how the claimant's symptoms affect the claimant.
    Section 3.160(a)(3) would state that VA will notify a claimant who 
files a claim based on inactive duty training that the following 
information and evidence is necessary to substantiate the claim: (1) A 
current disability, which is established by medical treatment records, 
medical opinions, and evidence from non-medical persons about 
persistent and recurrent symptoms of disability they have observed; (2) 
disability during inactive duty training from an injury that was 
incurred or aggravated during such training or an acute myocardial 
infarction, cardiac arrest, or cerebrovascular accident during such 
training, which is generally established by medical treatment records 
or medical opinions; and (3) a relationship between the claimant's 
current disability and the disability suffered during inactive duty 
training. Subsection (a)(3) would also explain that the information and 
evidence must show the extent of current disability, which may be based 
on medical treatment records, medical opinions, statements from the 
claimant's employer about how the disability affects the claimant's 
ability to work and from other people about how the claimant's symptoms 
affect the claimant.
    Section 3.160(b) would explain that, if a veteran files a claim 
alleging disability caused or aggravated by a service-connected 
disability, VA will notify the veteran that information and evidence of 
the following is necessary to substantiate the claim: (1) The veteran 
has a disability in addition to the service-connected disability, which 
is established by medical treatment

[[Page 65706]]

records, medical opinions, and evidence from non-medical persons about 
persistent and recurrent symptoms of disability they have observed; (2) 
a relationship between the additional disability and a service-
connected disability, which is generally established by medical 
treatment records and medical opinions; and (3) the extent of current 
disability, which may be based on medical treatment records, medical 
opinions, statements from the veteran's employer about how the 
disability affects the veteran's ability to work and from other people 
about how the veteran's symptoms affect the veteran.
    Section 3.160(c) would describe the notice that VA will provide 
upon receipt of an application for disability caused by VA treatment, 
vocational rehabilitation, or compensated work therapy. Section 
3.160(c) would explain that VA will notify the veteran that information 
and evidence of the following is necessary to substantiate the claim: 
(1) An additional physical or mental disability or an aggravation of an 
existing injury or disease, which is established by medical treatment 
records, medical opinions, and evidence from non-medical persons about 
persistent and recurrent symptoms of disability they have observed; (2) 
the veteran's additional disability or aggravation of an existing 
injury or disease was caused by VA hospital care, medical or surgical 
treatment or examination, VA training or rehabilitation services, or 
participation in VA's compensated work therapy program, which is 
generally established by medical treatment records and medical 
opinions; (3) the additional disability or aggravation caused by VA 
hospital care, medical or surgical treatment or examination was the 
direct result of VA fault (carelessness, negligence, lack of proper 
skill, or error in judgment) or was the direct result of an event not 
reasonably foreseeable (i.e., not an ordinary risk of the services 
provided); and (4) the extent of current additional disability, which 
may be based on medical treatment records, medical opinions, statements 
from the veteran's employer about how the disability affects the 
veteran's ability to work and from other people about how the veteran's 
symptoms affect the veteran.
    Section 3.161 would explain the notice that VA will provide upon 
receipt of an application seeking increased disability compensation. 
Section 3.161(a) would state that VA will notify a claimant the 
following information and evidence is necessary to substantiate a claim 
for an increased schedular rating: (1) An increase in the extent of the 
claimant's service-connected disability, which is based on medical 
treatment records, medical opinions, and statements from non-medical 
persons about persistent and recurrent symptoms of disability they have 
observed; and (2) the extent of current disability, which may be based 
on medical treatment records, medical opinions, statements from the 
veteran's employer about how the disability affects the veteran's 
ability to work and from other people about how the veteran's symptoms 
affect the veteran. VA will notify a claimant that VA will assign a 
rating for the disability from 0 to 100 percent under the VA Schedule 
for Rating Disabilities.
    Consistent with proposed new Sec.  3.159(d)(1), VA will not provide 
case-specific notice in increased-rating claims regarding the relevant 
rating criteria under diagnostic codes (DC) that are applicable to 
rating the current extent of a claimant's disability for the following 
reasons. First, as the Federal Circuit has explained, 38 U.S.C. 
5103(a)(1) is satisfied by generic notice regarding an increased-rating 
claim rather than veteran-specific notice regarding the DCs applicable 
to a particular veteran's claim. Vazquez-Flores, 2009 WL 2835434, *6, 
*10; Wilson, 506 F.3d at 1059-60; Paralyzed Veterans, 345 F.3d at 1347. 
We note as well that section 101(a) of the Veterans' Benefits 
Improvement Act of 2008 retained section 5103(a) as subsection (a)(1) 
and made no amendment to the provision. Thus, the unamended text of 38 
U.S.C. 5103(a)(1) does not require that VA provide case-specific notice 
of potentially applicable DCs.
    Second, notifying the claimant to submit evidence that their 
disability has increased in severity generally will put the claimant on 
notice to submit or direct VA's attention to all evidence that 
potentially may bear upon the severity of the disability. Third, many 
provisions in VA's rating schedule necessarily contain detailed medical 
criteria that would not be useful to claimants. A notice conveying 
extensive and often technical regulatory criteria will likely be long 
and complex, containing a great deal of medical language that can be 
confusing for the average reader, thereby diminishing its usefulness. 
See S. Rep. 110-449, at 8-9. Generic notice, on the other hand, will be 
more readily understandable and useful to claimants. Id. at 78. Fourth, 
it is VA's policy to assign a rating under the DC that most closely 
reflects the features of the current disability as shown by the medical 
evidence. This may require consideration of several potentially 
applicable DCs containing different criteria. Providing notice of the 
criteria under a single DC, such as that previously used in a 
particular case, may be misleading and may dissuade claimants from 
submitting all evidence bearing upon the current severity of their 
disabilities. At the same time, a notice conveying the requirements of 
several potentially applicable DCs, many of which may ultimately prove 
inapplicable upon development of the claim, may be confusing the 
claimant and may create unrealistic expectations. Fifth, providing 
notice tailored to the specific DCs potentially applicable to each 
claim requires time-consuming review in each case by VA employees in 
order to identify potentially applicable DCs based on the facts 
previously of record. The time devoted to such review would divert 
resources from the development and adjudication of claims and, for the 
reasons stated above, generally would not make VA's notices more 
helpful to claimants. By providing generic notice, VA will be able to 
focus its resources on adjudicating the more than 800,000 claims filed 
annually. Id.
    We recognize that the Senate Veterans' Affairs Committee report on 
Public Law 110-389 urges VA to codify in regulations the holding of 
Vazquez-Flores v. Peake, 22 Vet. App. 91 (2008), vacated, No. 2008-
7150, 2009 WL 2835434 (Fed. Cir. Sept. 4, 2009), in which the Veterans 
Court held that 38 U.S.C. 5103(a)(1) requires VA to provide case-
specific notice in increased-rating claims regarding the relevant DC 
criteria applicable to a claim. S. Rep. 110-449, at 11-12. However, VA 
believes, and the Federal Circuit concurs, that the Veterans Court's 
interpretation of section 5103(a)(1) does not accurately reflect the 
plain language of the statute and does not appropriately defer to VA's 
interpretation of the statute as reflected in former 38 CFR 3.159(b). 
Vazquez-Flores, 2009 WL 2835434, *6. In accordance with the provisions 
of Public Law 110-389 directing VA to prescribe regulations governing 
the content of VA notices under section 5103(a)(1), we propose to 
clarify our interpretation of the statute, consistent with the Federal 
Circuit's guidance in Vazquez-Flores and Wilson. With all due respect 
to the views expressed in the Committee report, such statements do not 
carry the force of law, particularly where they do not illuminate the 
meaning of the statutory terms, but merely express expectations that 
were not themselves reflected in the statute as passed. See Strickland 
v. Commissioner, Maine Dep't of Human Servs., 48 F.3d 12, 19 (1st Cir. 
1995). We

[[Page 65707]]

note that there was no mention of Vazquez-Flores during deliberations 
by the House of Representatives on Public Law 110-389. 154 Cong. Rec. 
H9387-H9405 (daily ed. Sept. 24, 2008). It is well established that 
expressions of expectations in isolated committee reports do not have 
the force of law, nor do they express the intent of Congress. See 
Strickland, 48 F.3d at 19 (declining to rely on legislative history 
comprised of ``one paragraph in one report of one of the two chambers 
that passed the law''); Scalise v. Thornburgh, 891 F.2d 640, 645 (7th 
Cir. 1989) (``An expression of an `expectation' by one committee of the 
House * * * does not establish congressional intent''); cf. Lincoln v. 
Vigil, 508 U.S. 182, 193 (1993) (``Congress may always circumscribe 
agency discretion to allocate resources by putting restrictions in the 
operative statutes (though not * * * just in the legislative 
history).''). In addition, section 101(b) of Public Law 110-389 
authorizes the Secretary of Veterans Affairs to prescribe regulations 
regarding the content of the notices that the Department will provide. 
The fact that Public Law 110-389 itself contains no language 
circumscribing in any way the Secretary's discretion to promulgate such 
regulations also leads us to conclude the ``expectation'' expressed in 
the Senate Committee report is not dispositive as to the notice that VA 
must provide upon receipt of a claim for an increased rating.
    Section 3.161(b) explains the notice that VA would provide upon 
receipt of an application for a rating of total disability based on 
individual unemployability. The notice would state that the information 
and evidence generally must establish that a veteran is unable to 
secure and follow substantial gainful employment because of a service-
connected disability rated at least 60 percent disabling or more than 
one service-connected disability with one disability rated at 40 
percent or more and a combined rating of at least 70 percent, but that 
VA will consider all evidence showing that the veteran is unemployable 
even if these ratings are not met. This determination may be based on 
medical treatment records, medical opinions, statements from the 
veteran's employer about how the disability affects the veteran and the 
veteran's ability to work, and statements from other people about how 
the veteran's symptoms affect the veteran.
    Section 3.161(c) would state that VA will notify a claimant that, 
to substantiate a claim for temporary total disability due to 
hospitalization, the information and evidence must show that the 
veteran was hospitalized for treatment for a service-connected 
disability in a VA hospital or an approved hospital for more than 21 
days or was hospitalized for observation for a service-connected 
disability at VA expense for more than 21 days. This is based on 
medical treatment records.
    Section 3.161(d) would state that VA would notify a claimant that 
to substantiate a claim for temporary total disability due to surgery 
or other treatment the information and evidence must show that the 
veteran received surgery at a VA or other approved hospital or 
outpatient facility for a service-connected disability and that the 
surgery required convalescence for at least 1 month or resulted in 
severe postoperative residuals (such as incompletely healed surgical 
wounds, stumps of recent amputations, therapeutic immobilizations, 
house confinement, or required use of a wheelchair or crutches), or 
that the veteran received treatment at a VA or other approved hospital 
or outpatient facility that resulted in immobilization by cast, without 
surgery, of at least one major joint. This is based on medical 
treatment records.
    Section 3.161(e) would state that VA would notify a claimant that 
to substantiate a claim for increased compensation because of the need 
for aid and attendance or bedridden status, medical treatment records, 
medical opinions, and competent non-medical evidence based on personal 
observations must show that the veteran requires the aid of another 
person to perform personal functions required in everyday living, such 
as bathing, feeding, or adjustment of prosthetics, or must remain in 
bed due to his or her disability or disabilities based on medical 
necessity and not based on a prescription of bed rest for purposes of 
convalescence or cure. VA also requires medical treatment records and 
medical reports showing that the veteran's need for aid and attendance 
or confinement to bed is a result of a service-connected disability.
    In Sec.  3.161(f), VA would state that, upon receipt of a claim for 
increased compensation based on being permanently housebound, VA will 
notify the claimant that the information and evidence must show that 
the veteran has a totally disabling service-connected disability. This 
may be based on medical treatment records, medical opinions, statements 
from the veteran's employer about how the disability affects the 
veteran's ability to work, and statements from other people about how 
the veteran's symptoms affect the veteran. The information and evidence 
must also show that the veteran is substantially confined to the 
veteran's house, ward or clinical areas if institutionalized, or 
immediate premises due to a service-connected disability or 
disabilities. This is established by medical treatment records, medical 
opinions, and statements from non-medical people about how the 
disability affects the veteran and the veteran's ability to function.
    Section 3.162 would explain the notice that VA would provide when a 
veteran files a claim for improved pension or increased pension. 
Section 3.162(a) would state that, if VA receives a claim for improved 
pension, VA will notify the claimant that the information and evidence 
must show the veteran served during a period of war.
    In addition, VA will notify the claimant that the information and 
evidence must show that the veteran is 65 years of age or older, or 
alternatively, that the veteran is permanently and totally disabled due 
to a nonservice-connected disability, which means that the veteran is a 
patient in a nursing home for long-term care, receiving social security 
disability benefits; unemployable due to a disability reasonably 
certain to continue through the veteran's lifetime; or suffering from a 
disability that is reasonably certain to continue through the veteran's 
lifetime and would make it impossible for the average person to follow 
a substantially gainful occupation; or suffering from a disease or 
disorder that VA believes justifies a determination that people who 
have the disease or disorder are permanently and totally disabled. This 
may be established by Social Security Administration records or medical 
treatment records, medical opinions, statements from the veteran's 
employer about how the disability affects the veteran and the veteran's 
ability to work, and statements from other people about how the 
veteran's symptoms affect the veteran. VA will also notify the claimant 
that the information and evidence must show that the claimant's annual 
income and net worth do not exceed certain limits.
    For reasons similar to those explained above concerning proposed 
Sec.  3.160, we do not propose to provide notice of the criteria 
governing effective dates as part of the notice under section 
5103(a)(1). By statute, the effective date of pension awards generally 
will be governed by the date of the application or by other facts that 
would necessarily be established by the evidence upon which the pension 
award is based. There ordinarily would be no other evidence relating 
solely to effective dates that would be necessary to substantiate a 
claim. However, in the event that

[[Page 65708]]

additional evidence would be relevant in a particular case at the stage 
of proceedings in which VA assigns an effective date, it may be 
addressed in the notices relevant to that stage of proceedings.
    Section 3.162(b) would explain the notice that VA will provide upon 
receipt of a claim for increased pension. VA will notify the claimant 
that medical treatment records, medical opinions, and competent non-
medical evidence based on personal observations must show that the 
claimant is in need of regular aid and attendance or is permanently 
housebound or, alternatively, the information and evidence must show 
that there has been a change in the claimant's income or net worth. A 
claimant is in need of regular aid and attendance if the claimant: (1) 
Has 5/200 visual acuity or less in both eyes; (2) has concentric 
contraction of the visual field to 5 degrees or less in both eyes; (3) 
is a patient in a nursing home because of mental or physical 
incapacity; or (4) requires the aid of another person in order to 
perform personal functions of everyday living, such as bathing, 
feeding, or adjusting a prosthetic device. A claimant is permanently 
housebound if the claimant is substantially confined to the claimant's 
house or immediate premises, or ward or clinical areas if 
institutionalized, because of a disability or disabilities and it is 
reasonably certain that the disability or disabilities will not improve 
during the claimant's lifetime.
    Section 3.163 would explain the notice that VA will provide upon 
receipt of a claim for benefits from a veteran's survivor. In addition 
to notice regarding the type of claim filed by a veteran's survivor, VA 
will also notify the claimant of the information and evidence necessary 
to substantiate a claim for accrued benefits because the claimant may 
be entitled to benefits that were due and unpaid the veteran at death.
    As set forth in Sec.  3.163(a)(1), VA will notify a survivor who 
files a claim for dependency and indemnity compensation (DIC) based on 
a death related to active duty that the information and evidence must 
show that: (1) The veteran died during active duty; (2) VA awarded the 
veteran service connection for a disease or injury and medical evidence 
shows that the disease or injury caused or contributed to the veteran's 
death; or (3) the veteran had a disease or injury that was incurred or 
aggravated during active duty or was caused by an event during active 
duty, as shown by medical evidence, competent non-medical evidence 
based on personal observations, and use of applicable legal 
presumptions, and medical evidence shows that the disease or injury 
caused or contributed to the veteran's death.
    We recognize that, in Hupp v. Nicholson, 21 Vet. App. 342, 352-53 
(2007), the Veterans Court held that notice in the context of a DIC 
claim ``must include (1) A statement of the conditions, if any, for 
which a veteran was service connected at the time of his or [her] 
death; (2) an explanation of the evidence and information required to 
substantiate a DIC claim based on a previously service-connected 
condition; and (3) an explanation of the evidence and information 
required to substantiate a DIC claim based on a condition not yet 
service-connected.'' The proposed rule would include the latter two 
components, but not the first. As explained above, the Federal Circuit 
stated in Vazquez-Flores, 2009 WL 2835434, *6, *10, and Wilson, 506 
F.3d at 1059, 1062, that the language in current section 5103(a)(1) 
requires generic notice tailored to the type of claim filed rather than 
veteran-specific notice. The notice required by Hupp, which was decided 
before Vazquez-Flores and Wilson, is not generic but rather would 
entail a review of the veteran's claim file to determine whether VA 
previously granted service connection for a veteran's disability.
    In VA's judgment and experience, the generic notice described in 
Sec.  3.163(a) would explain to a claimant the information and evidence 
necessary to substantiate a DIC claim based on a previously service-
connected disability as well as a claim based on a disability that was 
not previously service connected. DIC claimants are members of the 
veteran's immediate family and generally will know or can easily 
determine whether the veteran was granted service connection for any 
conditions. Moreover, VA will already have that information and will 
consider it in developing and deciding the claim. DIC claimants will 
not need to submit evidence of such awards. Additionally, the fact that 
VA previously awarded the veteran service connection for certain 
conditions would not preclude a DIC claimant from establishing service 
connection for a different condition that caused the veteran's death. 
Recitation of the veteran's previously service-connected conditions, 
which may have no bearing upon the DIC claim, is not necessary in order 
to notify the claimant of the information and evidence VA needs to 
substantiate the claim. Requiring such notices tailored to the specific 
facts of each DIC claim would impose unnecessary burdens and delays in 
VA's claim processing.
    Section 3.163(a)(2) would explain that VA will notify a survivor 
who files a claim for DIC based on a death related to active duty for 
training that the information and evidence must show one of the 
following: (1) That the veteran died during active duty for training; 
(2) that VA had granted the veteran service connection for a disease or 
injury and medical evidence shows that the service-connected disease or 
injury caused or contributed to the veteran's death; or (3) that the 
veteran was disabled during active duty for training due to a disease 
or injury incurred in the line of duty, as shown by medical evidence 
and competent non-medical evidence based on personal observation, and 
medical evidence shows that the disease or injury caused or contributed 
to the veteran's death.
    Section 3.163(a)(3) would explain that VA will notify a survivor 
who files a claim for DIC based on a death related to inactive duty 
training that the information and evidence must show that the veteran: 
(1) Died during inactive duty training due to an injury incurred or 
aggravated in line of duty or an acute myocardial infarction, cardiac 
arrest or cerebrovascular accident during such training, as shown by 
medical evidence and competent non-medical evidence based on personal 
observations; or (2) had a disability that was due to an injury 
incurred or aggravated during inactive duty training or an acute 
myocardial infarction, cardiac arrest, or cerebrovascular accident 
during such training, as shown by medical evidence and competent non-
medical evidence based on personal observations, and medical evidence 
shows that the injury, acute myocardial infarction, cardiac arrest, or 
cerebrovascular accident caused or contributed to the veteran's death.
    Section 3.163(a)(4) would explain that VA will notify a survivor 
who files a claim for DIC that, if the veteran did not die from a 
service-connected disability, DIC is payable if the veteran was 
receiving compensation from VA for a service-connected disability that 
was rated totally disabling. The veteran must have received, or been 
entitled to receive, compensation for at least 10 years immediately 
before death; at least 5 years immediately preceding death and 
continuously since the veteran's release from active duty; or at least 
1 year immediately preceding death, if the veteran was a former 
prisoner of war who died after September 30, 1999.
    Section 3.163(a)(5) would set forth the notice that VA would 
provide upon

[[Page 65709]]

receipt of a claim for DIC based upon a veteran's death caused by VA 
treatment, vocational rehabilitation or compensated work therapy. VA 
would notify the claimant that generally the medical treatment records 
and medical opinions must show that the veteran's death was caused by 
VA hospital care, medical or surgical treatment or examination, VA 
training or rehabilitation services, or participation in VA's 
compensated work therapy program. The evidence also must show that 
veteran's death, which was caused by VA hospital care, medical or 
surgical treatment or examination, was the direct result of VA fault 
(carelessness, negligence, lack of proper skill, or error in judgment) 
or was the direct result of an event not reasonably foreseeable (i.e., 
not an ordinary risk of the services provided). VA would notify the 
claimant that this requirement does not apply to claims based on VA 
training or rehabilitation services or compensated work therapy.
    In Sec.  3.163(b), VA would explain the notice that will be 
provided upon receipt of a claim for supplemental DIC for a veteran's 
child or parent. Section 3.163(b)(1) would state that, upon the receipt 
of a claim for supplemental DIC for a veteran's child, VA will provide 
notice that medical treatment records and medical opinions must show 
that the child, before his or her 18th birthday, became permanently 
incapable of self-support due to a mental or physical disability.
    Section 3.163(b)(2) would state that, upon receipt of a claim for 
supplemental DIC for a veteran's parent, VA will provide notice that 
medical treatment records and medical opinions must show that the 
parent has corrected visual acuity of 5/200 or less, in both eyes, or 
concentric contraction of the visual field to 5 degrees or less; or is 
a patient in a nursing home because of mental or physical incapacity; 
or requires the aid of another person in order to perform personal 
functions required in everyday living, such as bathing, feeding, and 
dressing.
    Section 3.163(c) would explain that, when VA receives a claim for 
improved pension from a veteran's surviving spouse or child, VA will 
notify the claimant that the information and evidence must show that 
the veteran served: (1) For ninety days or more during a period of war; 
(2) for ninety consecutive days, at least one of which was during a 
period of war; (3) for any length of time during a period of war and 
was discharged or released for a service-connected disability; or (4) 
for any length of time during a period of war and at the time of death 
was receiving or was entitled to receive VA compensation or service 
department retirement pay for a service-connected disability. The 
notice would further explain that the information and evidence must 
show that the claimant's annual income and net worth do not exceed 
certain limits.
    Section 3.163(d) would explain that, when VA receives a claim for 
increased pension from a veteran's surviving spouse, VA would provide 
notice that to substantiate the claim, medical treatment records, 
medical opinions, and competent non-medical evidence based on personal 
observations must show that the claimant is in need of regular aid and 
attendance or permanently housebound and would provide notice of the 
criteria for establishing need for regular aid and attendance or 
permanent housebound status. The notice would explain that a claimant 
is in need of regular aid and attendance if the claimant: (1) Has 5/200 
visual acuity or less in both eyes; (2) has concentric contraction of 
the visual field to 5 degrees or less in both eyes; (3) is a patient in 
a nursing home because of mental or physical incapacity; or (4) 
requires the aid of another person in order to perform personal 
functions of everyday living, such as bathing, feeding, or adjusting a 
prosthetic device. The notice would further explain that a claimant is 
permanently housebound if the claimant is substantially confined to the 
claimant's house or immediate premises because of a disability or 
disabilities and it is reasonably certain that the disability or 
disabilities will not improve during the claimant's lifetime.
    Section 3.163(e) would explain that, when VA receives a claim for 
accrued benefits and survivor benefits, VA would provide notice that to 
substantiate a claim for accrued benefits, the information and evidence 
must show that the benefits were awarded to the individual by a VA 
rating or decision before the individual died, or evidence in VA's 
possession on or before the date of the individual's death, even if 
such evidence was not physically located in the VA claims folder on or 
before the date of death, shows that the individual had applied for and 
was entitled to the benefits. VA would also notify the claimant that 
accrued benefits are paid to the following persons in the following 
order of priority: (1) Veteran's surviving spouse; (2) veteran's 
children (in equal shares); and (3) veteran's surviving dependent 
parents (in equal shares) or the surviving dependent parent if only one 
is living.
    Proposed new Sec.  3.164 would explain the notice that VA will 
provide upon receipt of an application for specially adapted housing, 
special home adaptation grant, allowance for an automobile or 
automobile adaptive equipment, clothing allowance, and monetary 
allowances for certain children provided under chapter 18 of title 38, 
United States Code.
    Section 3.164(a) would explain that, upon receipt of an application 
for specially adapted housing, VA would notify the claimant that 
medical treatment records and medical opinions must show that the 
veteran or servicemember on active duty is permanently and totally 
disabled due to one of the following: (1) Loss, or loss of use, of both 
lower extremities requiring the use of braces, crutches, canes, or a 
wheelchair to move from place to place; (2) blindness in both eyes so 
that the veteran can see only light, together with the loss, or loss of 
use of one lower extremity; (3) loss, or loss of use, of one lower 
extremity, together with a disease or injury that affects the veteran's 
balance or ability to move forward and requires the use of braces, 
crutches, canes, or a wheelchair in order to move from place to place; 
(4) loss, or loss of use, of one lower extremity, together with loss or 
loss of use of one upper extremity that affects the veteran's balance 
or ability to move forward and requires the use of braces, crutches, 
canes, or a wheelchair in order to move from place to place; (5) loss, 
or loss of use, of both upper extremities that prevents the veteran 
from using the arms at or above the elbows; or (6) severe burn injury. 
The notice would further explain that the information and evidence must 
show that the veteran or servicemember suffered the disability as a 
result of an injury, disease, or event in line of duty in the active 
military, naval or air service, or as the result of VA hospital care, 
medical or surgical treatment or examination under circumstances 
involving VA carelessness, negligence, lack of proper skill or error in 
judgment or an event not reasonably foreseeable, or as the result of VA 
training or rehabilitation services or participation in VA's 
compensated work therapy program.
    Section 3.164(b) would explain that upon receipt of a claim for a 
special home adaptation grant, VA would notify the claimant that 
medical treatment records and medical opinions must show that the 
veteran or servicemember on active duty is permanently and totally 
disabled due to a service-connected disability resulting from blindness 
in both eyes with 5/200 visual acuity or less; anatomical loss or loss 
of use of both hands; or severe burn injury. The notice would further 
explain that

[[Page 65710]]

the information and evidence must establish that the veteran or 
servicemember suffered the disability as a result of an injury, 
disease, or event in line of duty in the active military, naval or air 
service, or as the result of VA hospital care, medical or surgical 
treatment or examination under circumstances involving VA carelessness, 
negligence, lack of proper skill or error in judgment or an event not 
reasonably foreseeable, or as the result of VA training or 
rehabilitation services or participation in VA's compensated work 
therapy program.
    Section 3.164(c) would explain the notice that VA would give a 
claimant for an automobile allowance and/or adaptive equipment. VA 
would notify a claimant for an automobile allowance and adaptive 
equipment that medical treatment records and medical opinions must show 
that a veteran is entitled to compensation as a result of, or a 
servicemember on active duty is disabled due to the loss, or permanent 
loss of use, of at least a foot or a hand or permanent impairment of 
vision in both eyes, resulting in vision of 20/200 or less in the 
better eye with glasses or vision of 20/200 or better, if there is a 
severe defect in peripheral vision. The notice would further explain 
that the information and evidence must establish that the veteran or 
servicemember suffered the disability as a result of an injury, 
disease, or event in line of duty in the active military, naval or air 
service, or as a result of VA hospital care, medical or surgical 
treatment or examination under circumstances involving VA carelessness, 
negligence, lack of proper skill or error in judgment or an event not 
reasonably foreseeable, or as a result of VA training or rehabilitation 
services or participation in VA's compensated work therapy program.
    Further, VA would notify a claimant for adaptive equipment that 
such a claim may also be substantiated by information and evidence 
showing that a veteran is entitled to compensation for ankylosis of at 
least one knee or one hip. The information and evidence must show that 
the veteran suffered the disability as a result of an injury, disease, 
or event in line of duty in the active military, naval or air service, 
or as a result of VA hospital care, medical or surgical treatment or 
examination under circumstances involving VA carelessness, negligence, 
lack of proper skill or error in judgment or an event not reasonably 
foreseeable, or as a result of VA training or rehabilitation services 
or participation in VA's compensated work therapy program.
    Section 3.164(d) would explain the notice that VA will provide upon 
receipt of an application for a clothing allowance. VA would notify a 
claimant that the information and evidence must show that the veteran 
suffered a disability as a result of an injury, disease, or event in 
line of duty in the active military, naval or air service, or as a 
result of VA hospital care, medical or surgical treatment or 
examination under circumstances involving VA carelessness, negligence, 
lack of proper skill or error in judgment or an event not reasonably 
foreseeable, or as a result of VA training or rehabilitation services 
or participation in VA's compensated work therapy program. VA would 
also notify the claimant that a VA examination or hospital report or an 
examination report from a government or private facility must show that 
the veteran wears or uses a prosthetic or orthopedic appliance because 
the qualifying disability tends to wear out or tear the veteran's 
clothes, or the veteran uses prescription medication for a skin 
condition which is due to a qualifying disability and the medication 
causes irreparable damage to the veteran's outer garments.
    Section 3.164(e) would explain the notice that VA will provide upon 
receipt of an application for a monetary allowance for an individual 
with spina bifida born to a Vietnam veteran. VA will notify a claimant 
that the information and evidence must show that: (1) The individual's 
biological father or mother is or was a veteran who performed active 
military, naval, or air service in the Republic of Vietnam during the 
period beginning on January 9, 1962, and ending on May 7, 1975, 
including service in the waters offshore and service in other locations 
if the conditions of service involved duty or visitation in the 
Republic of Vietnam, and (2) the individual was conceived on or after 
the date on which the veteran first served in the Republic of Vietnam. 
VA would notify the claimant that this is based on evidence such as 
service department records and a birth certificate, church record of 
baptism, affidavit or certified statement from a physician or midwife 
present during the birth, or notarized copy of a Bible or other family 
record containing reference to the birth and medical treatment records 
and medical opinions showing that the individual has any form or 
manifestation of spina bifida except spina bifida occulta.
    VA would also notify the claimant that VA will examine the nature 
and severity of the individual's disability due to spina bifida and 
assign an evaluation of Level 1 to Level 3 by comparing the 
individual's symptoms to the criteria in Sec.  3.814 of title 38, Code 
of Federal Regulations, and that this is based on medical treatment 
records and reports and statements from the individual's employer and 
other people about how the disability affects the individual's ability 
to work and function.
    Section 3.164(f) would explain the notice that VA will provide upon 
receipt of an application for a monetary allowance for an individual 
with certain birth defects born to a female Vietnam veteran. VA will 
notify a claimant that the information and evidence must show that: (1) 
The individual's biological mother is or was a veteran who performed 
active military, naval, or air service in the Republic of Vietnam 
during the period beginning on February 28, 1961, and ending on May 7, 
1975, including service in the waters offshore and service in other 
locations if the conditions of service involved duty or visitation in 
the Republic of Vietnam; and (2) the individual was conceived on or 
after the date on which the veteran first served in the Republic of 
Vietnam. VA would notify the claimant that this is based on evidence 
such as service department records and a birth certificate, church 
record of baptism, affidavit or certified statement from a physician or 
midwife present during the birth, or notarized copy of a Bible or other 
family record containing reference to the birth and medical treatment 
records and medical opinions showing that the individual has a covered 
birth defect.
    VA would also notify the claimant that VA will examine the nature 
and severity of the individual's disability to the birth defect(s) and 
assign an evaluation of Level 1 to Level 3 by comparing the 
individual's symptoms to the criteria in Sec.  3.815 of title 38, Code 
of Federal Regulations, and that this is based on medical treatment 
records and reports and statements from the individual's employer and 
other people about how the disability affects the individual's ability 
to work and function.
    Proposed new Sec.  3.165 would explain the notice that VA will 
provide upon receipt of an application to reopen a previously denied 
claim based on new and material evidence. In Kent v. Nicholson, 20 Vet. 
App. 1, 9 (2006), the Veterans Court stated that ``VA must inform a 
claimant seeking to reopen a previously and finally disallowed claim of 
the unique character of evidence that must be presented'' because 
``[t]he terms `new' and `material' have specific, technical meanings 
that are not commonly known to VA claimants.''

[[Page 65711]]

Therefore, in addition to the notice described in Sec. Sec.  3.160 
through 3.164 regarding the type of benefit sought, VA will notify a 
claimant that ``new'' and ``material'' evidence is evidence not 
previously submitted to VA, that by itself or when considered with 
previous evidence of record, relates to an unestablished fact