Service-Connected and Other Disability Compensation, 53744-53771 [2010-21019]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 75, Number 169 (Wednesday, September 1, 2010)]
[Proposed Rules]
[Pages 53744-53771]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-21019]



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Part II





Department of Veterans Affairs





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38 CFR Part 5



Service-Connected and Other Disability Compensation; Proposed Rule

Federal Register / Vol. 75 , No. 169 / Wednesday, September 1, 2010 / 
Proposed Rules

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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 5

RIN 2900-AM07


Service-Connected and Other Disability Compensation

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 its regulations concerning service-
connected and other disability compensation. These revisions are 
proposed as part of VA's reorganization of all of its compensation and 
pension regulations 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 regulations.

DATES: Comments must be received by VA on or before November 1, 2010.

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. 
Comments should indicate that they are submitted in response to ``RIN 
2900-AM07--Service-Connected and Other Disability Compensation.'' 
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) 273-9515 (not a toll-free number) for an appointment. 
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: William F. Russo, Director of 
Regulations Management (02REG), Department of Veterans Affairs, 810 
Vermont Avenue, NW., Washington, DC 20420, or call (202) 273-9515 (not 
a toll-free number).

SUPPLEMENTARY INFORMATION: The Secretary of Veterans Affairs 
established the 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 was created in response 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 staff assigned to 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 service-connected and 
other disability compensation. After review and consideration of public 
comments, final versions of these proposed regulations will ultimately 
be published in a new part 5 in 38 CFR.

Outline

Overview of New Part 5 Organization
Overview of This Notice of Proposed Rulemaking
Table Comparing Proposed Part 5 Rules with Current Part 3 Rules

Content of Proposed Regulations

Service-Connected and Other Disability Compensation
    5.240 Disability compensation.
    5.241 Service-connected disability.
    5.242 General principles of service connection.
    5.243 Establishing service connection.
    5.244 Presumption of sound condition.
    5.245 Service connection based on aggravation of preservice injury 
or disease.
    5.246 Secondary service connection--disability that is proximately 
caused by service-connected disability.
    5.247 Secondary service connection--nonservice-connected disability 
aggravated by service-connected disability.
    5.248 Service connection for cardiovascular disease secondary to 
service-connected lower extremity amputation.
    5.249 Special service connection rules for combat-related injury or 
disease.
    5.250 Service connection for posttraumatic stress disorder.
    5.251 Current disabilities for which VA cannot grant service 
connection.
Rating Service-Connected Disabilities
    5.280 General rating principles.
    5.281 Multiple 0-percent service-connected disabilities.
    5.282 Special consideration for paired organs and extremities.
    5.283 Total and permanent total ratings and unemployability.
    5.284 Total disability ratings for disability compensation 
purposes.
    5.285 Continuance of total disability ratings.
Additional Disability Compensation Based on a Dependent Parent
    5.300 Establishing dependency of a parent.
    5.302 General income rules--parent's dependency.
    5.303 Deductions from income--parent's dependency.
    5.304 Exclusions from income--parent's dependency.
Disability Compensation Effective Dates
    5.311 Effective dates--award of disability compensation.
    5.312 Effective dates--increased disability compensation.
    5.313 Effective dates--discontinuance of a total disability rating 
based on individual unemployability.
    5.314 Effective dates--discontinuance of additional disability 
compensation based on parental dependency.
    5.315 Effective dates--additional disability compensation based on 
decrease in the net worth of a dependent parent.
Endnote Regarding Amendatory Language
Paperwork Reduction Act
Regulatory Flexibility Act
Executive Order 12866
Unfunded Mandates
Catalog of Federal Domestic Assistance Numbers and Titles
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

[[Page 53745]]

5, delegations of authority, general definitions, and general policy 
provisions for this part. This subpart was published as proposed on 
March 31, 2006. See 71 FR 16464.
    ``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 was published in three separate notices of proposed rulemaking 
(NPRMs) 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. The second, concerning 
general evidence requirements, effective dates, revision of decisions, 
and protection of existing ratings, was published as proposed on May 
22, 2007. See 72 FR 28770. The third, concerning VA benefit claims, was 
published on April 14, 2008. See 73 FR 2136.
    ``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. This 
subpart was published as proposed on September 20, 2006. See 71 FR 
55052.
    ``Subpart E--Claims for Service Connection and Disability 
Compensation'' would define service-connected disability compensation, 
including direct and secondary service connection, and disability 
compensation paid pursuant to section 1151, title 38, United States 
Code as if the disability were service connected. This subpart would 
inform readers how VA determines entitlement to 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 in three NPRMs due to its size. 
The first, concerning presumptions related to service connection, was 
published as proposed on July 27, 2004. See 69 FR 44614. The second, 
concerning special ratings, was published on October 17, 2008. See 73 
FR 62004. This NPRM, which includes regulations relating to service-
connected and other disability compensation, is the third of the NPRMs 
making up Subpart E.
    ``Subpart F--Nonservice-Connected Disability Pensions and Death 
Pensions'' would include information regarding the three types of 
nonservice-connected pension: Old-Law Pension, Section 306 Pension, and 
Improved Pension. This subpart would also include those provisions that 
state how to establish eligibility and entitlement to Improved Pension, 
and the effective dates governing each type of pension. This subpart 
was 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. The portion concerning eligibility and entitlement 
requirements for Improved Pension was published as proposed on 
September 26, 2007. See 72 FR 54776.
    ``Subpart G--Dependency and Indemnity Compensation, Accrued 
Benefits, and Special Rules Applicable Upon Death of a Beneficiary'' 
would contain regulations governing claims for dependency and indemnity 
compensation (DIC); accrued benefits; and various special rules that 
apply to the disposition of VA benefits, or proceeds of VA benefits, 
when a beneficiary dies. This subpart was published as two NPRMs due to 
its size. The portion concerning accrued benefits, 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 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. This subpart was published as proposed on March 9, 2007. See 
72 FR 10860.
    ``Subpart I--Benefits for Certain Filipino Veterans and Survivors'' 
would pertain to the various benefits available to Filipino veterans 
and their survivors. This subpart was published as proposed on June 30, 
2006. See 71 FR 37790.
    ``Subpart J--Burial Benefits'' would pertain to burial allowances.
    ``Subpart K--Matters Affecting the Receipt of Benefits'' would 
contain provisions regarding bars to benefits, forfeiture of benefits, 
and renouncement of benefits. This subpart was published as proposed on 
May 31, 2006. See 71 FR 31056.
    ``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 were published in two separate NPRMs. 
The first, concerning payments to beneficiaries who are eligible for 
more than one benefit, was published as proposed on October 2, 2007. 
See 72 FR 56136. The second, concerning payments and adjustments to 
payments, was published on October 31, 2008. See 73 FR 65212.
    The final subpart, ``Subpart M--Apportionments to Dependents and 
Payments to Fiduciaries and 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 document citation 
(including the Regulation Identifier Number and Subject Heading) 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.
    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 NPRMs.

Overview of This Notice of Proposed Rulemaking

    This NPRM pertains to service-connected and other disability 
compensation. These regulations would be contained in proposed Subpart 
E of

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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 in their existing counterparts in 38 CFR part 3. However, a few 
regulations with substantive differences are proposed, as are some 
regulations that do not have counterparts in 38 CFR part 3.

Table Comparing Proposed Part 5 Rules With Current Part 3 Rules

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

------------------------------------------------------------------------
                                            Based in whole or in part on
   Proposed part 5 section or paragraph       38 CFR part 3 section or
                                               paragraph (or ``New'')
------------------------------------------------------------------------
5.240(a)..................................  3.4(a) and (b)(1).
5.240(b)..................................  3.4(b)(2).
5.241 introduction........................  New.
5.241(a) and (b)..........................  3.1(k), 3.303(a) first and
                                             second sentences.
5.241(c)..................................  New.
5.242(a)..................................  3.303(a).
5.242(b)..................................  3.304(b)(3).
5.243(a)..................................  New.
5.243(b)..................................  3.303(a) and (d).
5.243(c) and (d)..........................  3.303(b).
5.244(a)..................................  3.304(b).
5.244(b)..................................  New.
5.244(c)(1)...............................  3.304(b)(1), first sentence.
5.244(c)(2)...............................  New.
5.244(d)(1)...............................  3.304(b).
5.244(d)(2)...............................  New.
5.245(a)(1)...............................  3.306(a).
5.245(a)(2)...............................  New.
5.245(b)(1)...............................  New.
5.245(b)(2)...............................  New.
5.245(b)(3)...............................  3.306(b)(1).
5.245(b)(4)...............................  3.306(b)(2).
5.245(c)..................................  3.306(b).
5.246.....................................  3.310(a).
5.247.....................................  3.310(b).
5.248.....................................  3.310(c).
5.249(a)(1)...............................  3.102, 3.304(d).
5.249(a)(2)...............................  New.
5.249(b)..................................  New.
5.250(a)..................................  3.304(f).
5.250(b)..................................  New.
5.250(c)..................................  3.304(f)(1).
5.250(d)..................................  3.304(f)(2) and (4).
5.250(e)..................................  3.304(f)(3).
5.250(f)..................................  3.304(f)(5).
5.251(a)..................................  3.303(c).
5.251(b)(1) through (3)...................  New.
5.251(c)..................................  New.
5.251(d)..................................  New.
5.251(e)..................................  3.380.
5.280.....................................  3.321(a), (b)(1), (3), and
                                             (c).
5.281.....................................  3.324.
5.282(a)..................................  3.383(a).
5.282(b)..................................  3.383(a)(1) through (5).
5.282(c)(1) and (2).......................  3.383(b)(1).
5.282(c)(3)...............................  3.383(c).
5.282(c)(4)...............................  3.383(d).
5.283.....................................  3.340.
5.284.....................................  3.341.
5.285.....................................  3.343(a) and (c).
5.300(a)(1)...............................  3.250(a)(1) and (3).
5.300(a)(2)...............................  New.
5.300(b)..................................  3.250(a)(2).
5.300(b)(1)...............................  3.250(b).
5.300(b)(1)(i)............................  3.250(b)(1).
5.300(b)(1)(ii)...........................  3.250(c).
5.300(b)(2)(i)............................  3.250(a)(2).
5.300(b)(2)(ii)...........................  3.250(b)(2).
5.300(c)..................................  3.250(b).
5.300(d)..................................  3.660(a)(1).
5.300(e)..................................  3.250(d).
5.302(a)..................................  3.262(a).
5.302(b)..................................  3.262(b), 3.262(e)(3).
5.302(c)..................................  3.261(a)(3), 3.250(b)(2).
5.302(d)..................................  3.262(k)(1) and (2).
5.302(e)..................................  3.262(k)(2) and (3).
5.303(a)..................................  3.262(a)(2).
5.303(b)..................................  3.261(a)(24), 3.262(i)(1)
                                             and (j)(4).
5.303(c)..................................  3.262(a)(1).
5.304 introduction........................  New.
5.304(a)..................................  3.261(a)(7).
5.304(b)(1)...............................  3.262(h)(1).
5.304(b)(2)...............................  3.262(h)(2).
5.304(b)(3)...............................  3.262(h)(3).
5.304(b)(4)...............................  3.262(h)(4).
5.304(c)..................................  3.261(a)(12).
5.304(d), except (d)(6)...................  3.261(a)(20).
5.304(d)(6)...............................  New.
5.304(e)..................................  3.261(a)(20).
5.304(f)..................................  3.261(a)(13).
5.304(g)..................................  3.261(a)(28), 3.262(t), and
                                             3.262(t)(2).
5.304(h)..................................  3.262(k)(4).
5.304(i)..................................  3.261(a)(31).
5.304(j)..................................  3.262(a)(2), last sentence.
5.304(k)..................................  3.261(a)(22).
5.304(l)..................................  3.261, 3.262.
5.311.....................................  3.400(b)(2).
5.312(a)..................................  New.
5.312(b)..................................  3.400(o)(2).
5.313(a)..................................  New.
5.313(b)..................................  3.501(e)(2).
5.313(c)..................................  3.501(f).
5.314(a)..................................  New.
5.314(b)..................................  3.500(h), 3.660(a)(2).
5.314(c)..................................  3.500(h), 3.500(n)(2),
                                             3.660(a)(2).
5.314(d)..................................  3.500 (g)(2), 3.500(h),
                                             3.660(a)(2).
5.315.....................................  3.660(d).
------------------------------------------------------------------------

    Readers who use this table to compare the proposed provisions with 
the existing regulatory 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

Service-Connected and Other Disability Compensation

Section 5.240 Disability Compensation
    The first proposed regulation in this NPRM, based on current Sec.  
3.4(a) and (b), would provide a definition of ``disability 
compensation'' and a rule concerning additional disability compensation 
payable to veterans who have dependents. The material in current Sec.  
3.4(a) about the death compensation program will have no counterpart in 
part 5. VA currently pays death compensation to fewer than 300 
beneficiaries. Except for one small group of beneficiaries covered 
under Sec.  3.4(c)(2), death compensation is payable only if the 
veteran died prior to January 1, 1957. VA has not received a claim for 
death compensation in over 10 years, and we do not expect to receive 
such claims any more. We intend to revise proposed Sec.  5.0, 71 FR 
16464 (Mar. 31, 2006), the scope provision for part 5, to provide 
direction that any new claims for death compensation or actions 
concerning death compensation benefits be adjudicated under part 3.
    The proposed definition of ``disability compensation'' in Sec.  
5.240(a) would be simpler than the rules in current Sec.  3.4(a) and 
(b)(1), because it does not unnecessarily repeat information found 
elsewhere. For example, current Sec.  3.4(a) states that ``[i]f the 
veteran was discharged or released from service, the discharge or 
release must have been under conditions other than dishonorable.'' 
Similarly, current Sec.  3.1(d) defines ``[v]eteran'' to mean ``a 
person who served in the active military, naval, or air service and who 
was discharged or released under conditions other than dishonorable.''

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The proposed part 5 definition of ``veteran'' in Sec.  5.1 includes the 
same information as current Sec.  3.1(d). See 71 FR at 16474. 
Therefore, we propose not to repeat the information in Sec.  5.240. 
Comparing current Sec. Sec.  3.4(b)(1) and 3.1(k) reveals another 
example of unnecessary repetition. Section 3.4(b)(1) states the rule 
for basic entitlement to disability compensation in terms of a service-
connected disability, while current Sec.  3.1(k) defines ``service-
connected'' with respect to disability as meaning that ``such 
disability was incurred or aggravated * * * in line of duty in the 
active military, naval, or air service.'' Section 5.241 in this NPRM 
would define ``service-connected disability'' based on current Sec.  
3.1(k). We propose to state the definition of service-connected 
disability once, in proposed Sec.  5.241 below.
    In addition, proposed Sec.  5.240(a) would define disability 
compensation to include compensation for a disability that is treated 
``as if'' it were service connected under 38 U.S.C. 1151, ``Benefits 
for persons disabled by treatment or vocational rehabilitation''. Thus, 
``disability compensation'' in part 5 would be distinguishable from 
``service-connected disability compensation''. In most cases, the 
procedures governing the payment of disability compensation are the 
same, regardless of whether compensation is authorized by 38 U.S.C. 
1110, 1131, or 1151. However, where it is important to distinguish 
between them, our part 5 regulations will do so either by specifically 
discussing section 1151 or by placing the descriptor ``service-
connected'' before the words ``disability compensation.'' See, e.g., 
proposed Sec.  5.20(b), 69 FR 4820 (Jan. 30, 2004). A more complete 
explanation of what constitutes a ``service-connected disability'' 
would be set out in the next proposed regulation in this NPRM, Sec.  
5.241. Therefore, proposed Sec.  5.240(a) would cross-reference that 
rule.
    Current Sec.  3.4(b)(2) provides that additional compensation may 
be paid to a veteran with a dependent if the veteran has ``disability 
evaluated as 30 per centum or more disabling.'' VA has consistently 
interpreted the authorizing statute, 38 U.S.C. 1115, as authorizing 
additional disability compensation for a dependent whether the veteran 
has at least a 30-percent rating for a single disability or for 
combined disabilities. Proposed Sec.  5.240(b) would make this 
interpretation explicit by stating that ``[a]dditional disability 
compensation is payable to a veteran who has a spouse, child, or 
dependent parent if the veteran is entitled to disability compensation 
based on a single or a combined disability rating of 30 percent or 
more.''
    In Sec.  5.240(b) we would also clarify the relationship between 
the additional disability compensation that section 1115 authorizes and 
the rates of disability compensation under 38 U.S.C. 1114. Section 1114 
provides the rates and amounts of service-connected disability 
compensation. The additional disability compensation that section 1115 
authorizes is above and beyond any rate that section 1114 authorizes. 
The second sentence of Sec.  5.240(b) would state that ``[t]he 
additional disability compensation authorized by 38 U.S.C. 1115 is 
payable in addition to monthly disability compensation payable under 38 
U.S.C. 1114.''
Section 5.241 Service-Connected Disability
    Proposed Sec.  5.241, which would explain when a disability is 
considered to be ``service connected'', would be based on current Sec.  
3.1(k) and the first two sentences of current Sec.  3.303(a). The 
portion of the definition in current Sec.  3.1(k) that relates to 
service-connected death was addressed in proposed Subpart G of part 5, 
in a separate NPRM. See 70 FR at 61342.
    In the introductory sentence, we would clarify that a service-
connected disability must be a ``current disability''. See Disabled Am. 
Veterans v. Sec'y of Veterans Affairs, 419 F.3d 1317, 1318 (Fed. Cir. 
2005) (DAV) (``[g]enerally, a veteran who claims entitlement to 
disability compensation benefits must show * * * a current 
disability''); see also Hogan v. Peake, 544 F.3d 1295, 1297 (Fed. Cir. 
2008) (``[t]o establish a right to benefits, a veteran must show that a 
current disability is `service connected' '' (citing DAV)). Although 
neither Sec.  3.1(k) nor Sec.  3.303(a) refers to a ``current 
disability'', the U.S. Court of Appeals for the Federal Circuit 
(Federal Circuit) has held that VA's interpretation of 38 U.S.C. 1110 
and 1131, which govern entitlement to service connection, as requiring 
a current disability to establish service connection is reasonable. See 
Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998) (holding that VA's 
interpretation of 38 U.S.C. 1110 as requiring a current disability is 
reasonable because ``[m]any of the statutes governing the provision of 
benefits for veterans only allow such benefits be given for disability 
existing on or after the date of application'') (citing 38 U.S.C. 
5110(a), 5111(a), 1710, and 1712); Degmetich v. Brown, 104 F.3d 1328, 
1332 (Fed. Cir. 1997) (same as to VA's interpretation of 38 U.S.C. 
1131). Thus, the inclusion of a ``current disability'' requirement 
would codify these court holdings but would not produce a different 
result for claims adjudicated under part 5.
    Proposed paragraph (a) would essentially repeat the content of 
current Sec.  3.1(k) and the first two sentences of current Sec.  
3.303(a). We would clarify that a service-connected disability must 
have been ``caused by an injury or disease incurred, or presumed to 
have been incurred, in the line of duty during active military 
service.''
    Proposed paragraph (b) would incorporate the principle of 
aggravation, which is also included in Sec.  3.1(k). We would state the 
principle in a separate paragraph in order to clearly indicate that it 
is separate from evidence of incurrence, which would be governed by 
Sec.  5.241(a).
    In proposed paragraph (c), we would include in the definition of 
``service-connected disability'' a disability that is secondary to a 
service-connected disability. This should help convey that secondary 
service connection is a type of service connection and that regulatory 
references to a ``service-connected disability'' include a secondarily 
service-connected disability. This principle is not contained in Sec.  
3.1(k) specifically but is generally established by current Sec.  
3.310(a). Therefore, this would not be a substantive change from 
current practice.
Section 5.242 General Principles of Service Connection
    Proposed Sec.  5.242 would be the part 5 counterpart to two general 
principles VA applies in adjudicating claims for service connection. 
The first, based on 38 U.S.C. 1154(a), would pertain to VA's 
consideration in service connection claims of the places, types, and 
circumstances of the veteran's service. The second, based on 10 U.S.C. 
1219, would pertain to VA's consideration of certain statements a 
veteran might have signed in service.
    The third sentence of current Sec.  3.303(a) states that ``[e]ach 
disabling condition shown by a veteran's service records, or for which 
he seeks a service connection must be considered on the basis of the 
places, types and circumstances of his service as shown by service 
records, the official history of each organization in which he served, 
his medical records and all pertinent medical and lay evidence.'' 
Paragraph (a) of proposed Sec.  5.242 would be derived from this 
sentence, which is derived almost verbatim from 38 U.S.C. 1154(a). 
Section 1154(a) requires VA to give ``due consideration * * * to the 
places, types, and circumstances of such veteran's service as shown by 
such

[[Page 53748]]

veteran's service record, the official history of each organization in 
which such veteran served, such veteran's medical records, and all 
pertinent medical and lay evidence''. We do not interpret this statute 
as adding to the evidence-gathering duties set forth in 38 U.S.C. 
5103A, which requires VA to make ``reasonable efforts to obtain 
relevant records * * * that the claimant adequately identifies''. 38 
U.S.C. 5103A(b)(1).
    The requirement that a claimant identify records with potentially 
relevant information is repeated in section 5103A(c)(3) and is 
consistent with the claimant's duty to actively participate in the 
claims process. It would be far too burdensome to require VA to seek 
out, obtain, and review every official record regarding the unit(s) and 
circumstance(s) of every veteran's service, and, more importantly, 
doing so in the vast majority of cases would be unproductive. Hence, 
proposed Sec.  5.242(a) would require VA to duly consider only 
``evidence of record'' concerning matters such as the places, types, 
and circumstances of the veteran's service and the history of 
organizations in which the veteran served, which would be consistent 
with current Sec.  3.303(a) requiring VA to base its determinations as 
to service connection on the entire ``evidence of record''.
    The regulatory and statutory history of the third sentence of Sec.  
3.303(a) began in 1941, Public Law 77-361, 55 Stat. 847. The statute 
required ``that in each case where a veteran is seeking service 
connection for any disability[,] due consideration shall be given to 
the places, types, and circumstances of his service as shown by his 
service record, the official history of each organization in which he 
served, his medical records, and all pertinent medical and lay 
evidence.'' VA implemented this language in 38 CFR 2.1077(b) (Cum. 
Supp. 1938-1943), using substantially the same language. 7 FR 1981 
(Mar. 13, 1942). VA regulations contained this same language until 
1961, when VA revised it to read as it does in current Sec.  3.303(a). 
The regulatory history does not reveal why VA revised this language.
    We propose not to repeat in Sec.  5.242(a) the phrase ``[e]ach 
disabling condition shown by a veteran's service records'' for two 
reasons. First, the phrase creates a distinction between disabilities 
shown in a veteran's service record and those not shown. This 
distinction is irrelevant because VA considers all service connection 
claims ``on the basis of the places, types and circumstances'' 
regardless of whether a disability is shown in the service record or in 
the evidence of record subsequent to service. Second, the phrase could 
be misconstrued to mean that, absent any claim by a veteran, VA has a 
duty to review service records to determine entitlement to service 
connection for ``[e]ach disabling condition'' which might possibly 
exist. Congress did not intend to impose such a duty on VA when it 
enacted Public Law 77-361. Moreover, such a duty would impose an 
unreasonable burden on VA's limited resources by requiring VA to comb 
through veterans' service records for potential claims.
    Proposed Sec.  5.242(b) would restate current Sec.  3.304(b)(3), 
which provides that ``[s]igned statements of veterans relating to the 
origin, or incurrence of any disease or injury made in service if 
against his or her own interest is of no force and effect if other data 
do not establish the fact'' and that ``[o]ther evidence will be 
considered as though such statement were not of record.'' This rule is 
derived from 10 U.S.C. 1219, which states that ``[a] member of an armed 
force may not be required to sign a statement relating to the origin, 
incurrence, or aggravation of a disease or injury that he has'' and 
that ``[a]ny such statement against his interests, signed by a member, 
is invalid.''
    The language of current Sec.  3.304(b)(3) does not limit its 
application to cases involving the presumption of sound condition. 
Despite the fact that it falls under the ``Presumption of soundness'' 
subheading, we believe VA intended this provision to mirror section 
1219 and be applied broadly. Section 1219 precludes a service 
department from using a statement of the sort the statute describes for 
any purpose. The statute does not describe a context in which such a 
statement by the servicemember would be invalid. We propose, by 
locating the rule in the section on general principles of service 
connection, to make clear that VA also applies the rule broadly. The 
remaining provisions of current Sec.  3.304(b) are covered under 
proposed Sec.  5.244, ``Presumption of sound condition.''
    Proposed Sec.  5.242(b) would resolve an ambiguity in the current 
rule and state the full scope of the statute while limiting its 
application to a statement that was against a veteran's interest at the 
time he or she signed the statement. The current rule pertains only to 
a signed statement about ``origin'' or ``incurrence'' of an injury or 
disease. The proposed rule would also pertain to a signed statement 
about ``aggravation of an injury or disease,'' which would be 
consistent with the statute.
    The current rule is unclear whether a veteran's statement ``against 
his or her own interest'' means a statement that was against the 
veteran's interest at the time the veteran signed it, or is against the 
veteran's current interest. Specifying that VA will exclude a statement 
against the signer's interest at the time signed ensures that the rule 
protects veterans against VA decisions based on possibly unreliable 
evidence.
    Current Sec.  3.304(b)(3) bars VA consideration of a statement 
signed in service if against a veteran's interest, which therefore 
permits VA to consider the statement if in the veteran's interest. The 
proposed rule would likewise permit VA to consider a statement the 
veteran signed while in service if the statement was made in the 
veteran's interest. The current rule bars VA consideration of a signed 
statement against the veteran's interest to prove a fact ``if other 
data do not establish the fact.'' This logically permits VA to consider 
a statement made against a veteran's interest if other data establish 
the fact. The proposed rule would remove this conditional permission 
for VA to consider a signed statement made against the veteran's 
interest, which would make the rule simpler and easier to administer. 
VA could still consider the other data (that is, evidence) that 
establish the fact, rather than the statement made against the 
veteran's interest.
Section 5.243 Establishing Service Connection
    Proposed Sec.  5.243 would state the general requirements for 
establishing service connection. It would be based on concepts in 
statutes, such as 38 U.S.C. 101(16), 1110, and 1131, and current Sec.  
3.303, as interpreted and applied by the U.S. Court of Appeals for 
Veterans Claims (CAVC) and the Federal Circuit. It would not state the 
requirements for establishing secondary service connection, which are 
addressed in proposed Sec. Sec.  5.246 and 5.247.
    Proposed Sec.  5.243(a) would identify the three basic requirements 
for establishing service connection of a disability: Current 
disability, incurrence or aggravation of an injury or disease in 
service, and a causal link between the two. These principles, long 
embedded in veterans' disability law, have been formally in use as a 
specific three-part test since 1995 when the CAVC articulated them in 
its decision in Caluza v. Brown, 7 Vet. App. 498, 505 (1995). See 
Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (affirming 
that the CAVC ``has correctly noted that in order to establish service 
connection or service-connected

[[Page 53749]]

aggravation for a present disability the veteran must show: (1) The 
existence of a present disability; (2) in-service incurrence or 
aggravation of a disease or injury; and (3) a causal relationship 
between the present disability and the disease or injury incurred or 
aggravated during service'' (citing Caluza)). Stating these principles, 
which reflect current law, would provide clear guidance as to the 
requirements for establishing service connection.
    Proposed Sec.  5.243(a) would not in any way restore the well-
grounded-claim requirement eliminated by section 4 of the Veterans 
Claims Assistance Act of 2000, Public Law 106-475, 114 Stat. 2098. That 
requirement, based on 38 U.S.C. 5107 as it existed prior to passage of 
Public Law 106-475, set a well-grounded-claim threshold that had to be 
met before VA was obligated to provide assistance to VA claimants in 
developing evidence to support their claims. See generally, Gilbert v. 
Derwinski, 1 Vet. App. 49, 55 (1991). The three Caluza requirements are 
foundational principles that stand apart from the now-eliminated well-
grounded-claim requirement. The courts still recognize the three-part 
test as a means of establishing service connection. See Shedden, 381 
F.3d at 1166-67 (noting that there are three elements that must be 
satisfied in order for an appellant to establish service connection: A 
present disability; in-service incurrence or aggravation of a disease 
or injury; and a causal relationship between the two). The proposed 
regulation would simply incorporate current law and practice in a 
straightforward manner by using currently accepted and understood 
terminology.
    Proposed paragraph (a) would include two notes. Note 1 would make 
clear that service records alone may be sufficient to meet all of the 
requirements listed in Sec.  5.243(a) when those records clearly show 
that an injury or disease incurred or aggravated in service produced 
disability that is permanent by its very nature. For example, VA would 
never require a veteran who had suffered an amputation of a limb during 
service to produce current evidence that the amputation currently 
exists or that it is causally related to the in-service amputation.
    Note 2 would make clear that VA recognizes that certain chronic 
diseases and chronic residuals of injury can have temporary remissions. 
It would provide that VA will not deny service connection for lack of a 
current disability solely because a chronic disease, or a chronic 
residual of an injury, enters temporary remission. The note would give 
examples of the types of chronic diseases and chronic residuals of 
injury subject to temporary remission.
    Proposed Sec.  5.243(b) would be based on the second sentence of 
current Sec.  3.303(a) and on part of current Sec.  3.303(d). The 
second sentence of Sec.  3.303(a) provides that a veteran can establish 
that an injury or disease resulting in disability was incurred or 
aggravated in active military service ``by affirmatively showing 
inception or aggravation during service or through the application of 
statutory presumptions.'' Section 5.243(b) would restate the substance 
of the second sentence of Sec.  3.303(a) as it relates to the second 
element of proof of service connection listed in proposed Sec.  
5.243(a). We would use the term ``evidence'' rather than 
``affirmatively showing,'' because a fact can only be affirmatively 
shown with evidence.
    Current Sec.  3.303(d) states that ``[s]ervice connection may be 
granted for any disease diagnosed after discharge, when all the 
evidence, including that pertinent to service, establishes that the 
disease was incurred in service.'' We have rewritten this in proposed 
Sec.  5.243(b) to state that ``[p]roof of incurrence of a disease 
during active military service does not require diagnosis during 
service if the evidence otherwise establishes that the disease was 
incurred in service.'' The rewritten language maintains the current 
regulation's caution to VA employees that an initial diagnosis after 
discharge from service does not preclude service connection. This would 
not be a substantive change.
    The phrase ``all the evidence, including that pertinent to 
service'' in current Sec.  3.303(d) is redundant of the existing 
language in Sec.  3.303(a), which provides that ``[d]eterminations as 
to service connection will be based on review of the entire evidence of 
record'' (emphasis added). It is a statutory requirement and 
fundamental to VA adjudications (except claims of clear and 
unmistakable error) that VA considers ``all information and lay and 
medical evidence of record in a case''. 38 U.S.C. 5107(b). Proposed 
Sec.  5.242(a) explicitly applies this principle to service connection 
claims. In Cosman v. Principi, 3 Vet. App. 503, 506 (1992), the CAVC 
concluded that the ``all the evidence'' language in Sec.  3.303(d) does 
not mean that only positive evidence must be of record to support a 
finding that a disease was incurred in service when there is a post-
service diagnosis, but rather means only that ``all the evidence be 
considered and that the equipoise rule of 38 U.S.C. Sec.  5107(b) 
applies to questions of service connection under [Sec.  ] 3.303(d).'' 
Id. Because the phrase ``all the evidence, including that pertinent to 
service'' in current Sec.  3.303(d) provides no unique rule, we propose 
not to repeat it in Sec.  5.243(b).
    Proposed Sec.  5.243(c)(1) would restate the first sentence of 
current Sec.  3.303(b). This sentence states that VA will grant service 
connection for a current disability if competent evidence establishes 
that the veteran had a chronic disease in service, or within an 
applicable presumptive period, and that the current disability is the 
result of the same chronic disease, unless the veteran's current 
disability is clearly due to an intercurrent cause. VA's long-standing 
practice is to apply the principles of chronicity and continuity to 
residuals of injury. This practice provides a fair and efficient means 
to determine service connection in certain cases, and it is logical to 
apply these principles to injuries as well as to diseases. Therefore, 
proposed Sec.  5.243(c)(1) would also apply to an injury incurred or 
aggravated in service where the current disability is due to ``the 
chronic residuals of the same injury.''
    The third and second sentences of current Sec.  3.303(b) would be 
restated as a Note to Sec.  5.243(c)(2) with minor, nonsubstantive 
changes.
    Proposed Sec.  5.243(d), based on portions of current Sec.  
3.303(b), would provide rules for establishing service connection based 
on the continuity of signs or symptoms. That is, if the chronicity 
provisions do not apply, VA will grant service connection if there is 
competent evidence of signs or symptoms of an injury or disease during 
service or the presumptive period, of continuing signs or symptoms, and 
of a relationship between the signs or symptoms demonstrated over the 
years and the veteran's current disability. See Savage v. Gober, 10 
Vet. App. 488, 498 (1997).
    Current part 3 refers only to ``symptoms''. We would add ``signs'' 
because the contemporary view of the medical profession distinguishes 
between signs and symptoms. A sign is ``any objective evidence of a 
disease, i.e., such evidence as is perceptible to the examining 
physician, as opposed to the subjective sensations (symptoms) of the 
patient.'' Dorland's Illustrated Med. Dictionary 1733 (31st ed. 2007). 
A symptom is ``any subjective evidence of disease or of a patient's 
condition, i.e., such evidence as perceived by the patient.'' Id. at 
1843. Subjective and objective evidence are equally relevant to 
establishing continuity of

[[Page 53750]]

symptomatology, and the inclusion of more specific terminology does not 
represent a departure from current VA practice.
Section 5.244 Presumption of Sound Condition
    Proposed Sec.  5.244 would assemble in one regulation the statutory 
and regulatory principles concerning the presumption of sound condition 
at entry into military service. For purposes of basic entitlement to 
wartime disability compensation, 38 U.S.C. 1111, ``Presumption of sound 
condition'', states that ``every veteran [who served during a period of 
war] shall be taken to have been in sound condition when examined, 
accepted, and enrolled for service, except as to defects, infirmities, 
or disorders noted at the time of the examination, acceptance, and 
enrollment, or where clear and unmistakable evidence demonstrates that 
the injury or disease existed before acceptance and enrollment and was 
not aggravated by such service.'' Section 1137 of title 38, U.S.C., 
``Wartime presumptions for certain veterans'', extends this presumption 
to all veterans who served after December 31, 1946, including veterans 
who served during peacetime.
    In part 5, we would not repeat current Sec.  3.305, which 
implements the presumption of sound condition for veterans of entirely 
peacetime service before World War II. See 38 U.S.C. 1132, 
``Presumption of sound condition''. The presumption under section 1132 
applies only to a very small and decreasing population of veterans. If 
a veteran of pre-World War II peacetime service initiates a claim for 
service connection after part 5 goes into effect, we would apply 
section 1132 without a specific implementing regulation. All generally 
applicable rules in part 5 for developing and evaluating evidence and 
rebutting presumptions would apply to claims from pre-World War II 
peacetime veterans. Neither section 1132 nor 38 CFR 3.305 imposes an 
extraordinary burden on VA to rebut the presumption (compared to the 
statute and the current regulation applying the presumption of sound 
condition to veterans who served during or after World War II). See 38 
U.S.C. 1111; 38 CFR 3.304(b). A claimant would have the same assistance 
in developing a claim and the same protection against rebuttal of the 
presumption that he or she would have if we included a part 5 
counterpart to Sec.  3.305.
    Proposed paragraph (a) would define the presumption of sound 
condition generally. Current Sec.  3.304(b) states that ``[t]he veteran 
will be considered to have been in sound condition when examined, 
accepted and enrolled for service''. We would describe the time as of 
which VA presumes a veteran was sound with the phrase ``upon entry into 
active military service'', rather than with the phrase ``when examined, 
accepted and enrolled for service''. This proposed phrase would be 
plain language with the same meaning as ``when examined, accepted and 
enrolled for service.'' In addition to its simplicity, the proposed 
phrase should prevent readers from mischaracterizing the examination as 
at the time of entry. Examinations for entry could have been some time 
prior to entry (as with entry through a deferred enlistment program), 
rather than contemporaneous with entry.
    Proposed paragraph (a) would state the limitations on the 
presumption more simply, and more consistently with the overall scheme 
of service connection, compared to the statute and current regulation. 
Where 38 U.S.C. 1111 provides that a veteran is presumed to have been 
in sound condition ``except as to defects, infirmities, or disorders 
noted at the time of the examination, acceptance, and enrollment'', see 
also current Sec.  3.304(b), we would state that the veteran is 
presumed to have been sound ``except [for injury or disease] as noted 
in the report of a medical examination conducted for entry into active 
military service.'' Precluding a presumption of sound condition for 
injury or disease noted in the entry examination report is consistent 
with 38 U.S.C. 1110 and 1131, which authorize VA to pay disability 
compensation for ``disability resulting from personal injury suffered 
or disease contracted in line of duty, or for aggravation of a 
preexisting injury suffered or disease contracted in line of duty, in 
the active military * * * service''. The proposed language would make 
it easier to understand how the presumption functions in the scheme of 
VA disability compensation than the part 3 language. Additionally, the 
change from ``defects, infirmities, or disorders'' to ``injury or 
disease'' affords consistency of terms among proposed Sec.  5.241, 
defining service-connected disability; proposed Sec.  5.244, governing 
the presumption of sound condition; and proposed Sec.  5.245, governing 
the presumption of aggravation. The language was chosen for 
consistency. VA does not intend it to expand or limit the scope of 
section 1111.
    Proposed Sec.  5.244(b) would follow long-standing VA practice and 
clarify that the presumption of sound condition attaches even if the 
military service department did not conduct an entry medical 
examination or if there is no record of an entry examination. To relate 
this rule to the authorizing statute, if there was no entry medical 
examination, then there could be no ``defects, infirmities, or 
disorders noted at the time of the examination, acceptance, and 
enrollment'' that would serve to prevent the presumption from arising. 
See 38 U.S.C. 1111. The same reasoning would apply if there were no 
record of an entry examination. It is fair and reasonable to apply the 
presumption of sound condition the same way to a veteran whose record 
of examination is missing as to a veteran whose service records show no 
examination was done in connection with entry.
    Proposed Sec.  5.244(c)(1) would be derived from current Sec.  
3.304(b)(1), which provides in part that ``[h]istory of preservice 
existence of conditions recorded at the time of examination does not 
constitute a notation of such conditions but will be considered 
together with all other material evidence in determinations as to 
inception.''
    Proposed Sec.  5.244(c)(2) would be new. It would clarify that the 
presumption of sound condition is rebuttable even if an entrance 
physical examination report shows that the examiner tested for and did 
not find the condition in question, provided that other evidence of 
record is sufficient to overcome the presumption. See Kent v. Principi, 
389 F.3d 1380, 1383 (Fed. Cir. 2004).
    Proposed paragraph (d) would state the statutory burden of proof 
for rebutting the presumption of sound condition. VA bears this burden. 
The paragraph would provide the standards VA must apply to determine 
whether the evidence meets this burden. The paragraph would be 
consistent with current Sec.  3.304(b). Proposed paragraph (d)(1) would 
require, in the case of veterans with any wartime service and of 
veterans with peacetime service after December 31, 1946, clear and 
unmistakable evidence that the injury or disease both preexisted 
service and was not aggravated by service to rebut the presumption of 
sound condition at the time of entry into military service.
    Paragraph (d)(2) would refer the reader to proposed Sec.  5.245, 
``Service connection based on aggravation of preservice injury or 
disease'', for the substance of the rules governing whether service 
aggravated a preexisting injury or disease. Proposed Sec.  5.245 would 
implement the statutory presumption of aggravation. 38 U.S.C. 1153.
    The Federal Circuit suggested that VA could meet the ``not 
aggravated by [active military] service'' element of rebuttal for the 
presumption of sound

[[Page 53751]]

condition under 38 U.S.C. 1111 with a standard similar to that 
contained in 38 U.S.C. 1153. Wagner v. Principi, 370 F.3d 1089, 1096 
(Fed. Cir. 2004) (noting that ``[t]he government may show a lack of 
aggravation by establishing that there was no increase in disability 
during service or that any `increase in disability [was] due to the 
natural progress of the' preexisting condition'' (quoting 38 U.S.C. 
1153)).
    We adopt this suggestion as it applies to veterans with any wartime 
service and of veterans with peacetime service after December 31, 1946. 
It is rational to treat aggravation consistently in the context of the 
presumption of sound condition and in the context of the presumption of 
aggravation. The significant difference is that in the context of the 
presumption of sound condition, VA must determine whether there was 
aggravation if the disability claimed for service connection was not 
noted on examination for entry. In the presumption of aggravation, VA 
must determine whether there was aggravation of the disability claimed 
for service connection if the injury or disease resulting in the 
disability was noted on examination for entry. The criteria for finding 
that active military service did not aggravate a preexisting injury or 
disease are the same for purposes of both rebutting the presumption of 
sound condition and rebutting the presumption of aggravation. We would 
state the criteria in detail in proposed Sec.  5.245, which would 
govern the presumption of aggravation. The discussion of proposed Sec.  
5.245, below, provides additional information about these factors.
    Current Sec.  3.304(b)(1) and (b)(2) includes complex provisions 
concerning the factors VA considers in determining whether the 
presumption of sound condition has been rebutted. Among other things, 
these provisions include standards that could be construed as requiring 
VA employees adjudicating claims to use medical judgment. Among these 
are provisions for assessment of ``accepted medical principles,'' 
``clinical factors,'' the ``clinical course,'' and the like. The 
sentences containing the quoted language advise claim adjudicators to 
consider certain aspects of the evidence. However, it is now clear that 
VA employees may not exercise their own medical judgment in 
adjudicating disability compensation claims. See Gambill v. Shinseki, 
576 F.3d 1307, 1329 (Fed. Cir. 2009) (noting that ``rating specialists 
are not permitted to make their own medical judgments''); Colvin v. 
Derwinski, 1 Vet. App. 171, 172 (Vet. App. 1991) (holding that, in 
making decisions, VA must consider only ``medical evidence to support 
[its] findings rather than provide [its] own medical judgment.''), 
overruled in part on other grounds, Hodge v. West, 155 F.3d 1356, 1360 
(Fed. Cir. 1998). Moreover, VA's duty to assist claimants with their 
claims includes providing a medical examination or obtaining a medical 
opinion based upon a review of the evidence of record if VA determines 
it is necessary to decide the claim. 38 U.S.C. 5103A(d); 38 CFR 
3.159(c)(4). Therefore, we propose to omit provisions that might be 
misconstrued as requiring VA personnel adjudicating claims to exercise 
their own medical judgment or allowing VA to solicit a VA medical 
opinion when it is not necessary to decide the claim.
    As mentioned above in discussing Sec.  5.242(b), the proposed 
rewrite of the regulation implementing the presumption of soundness 
would not repeat current Sec.  3.304(b)(3).
Section 5.245 Service Connection Based on Aggravation of Preservice 
Injury or Disease
    Proposed Sec.  5.245 would be derived from current Sec.  3.306, 
``Aggravation of preservice disability''. Current Sec.  3.306(a) 
provides for the presumption of aggravation ``where there is an 
increase in disability during [active military, naval, or air] service, 
unless there is a specific finding that the increase in disability is 
due to the natural progress of the disease'', as does 38 U.S.C. 1153. 
Current Sec.  3.306(b) then provides the standard of proof for 
rebutting the presumption by finding that the increase in severity of a 
preexisting disease was due to the natural progress of the disease, for 
veterans of wartime service or of peacetime service after December 21, 
1946.
    We propose not to repeat in part 5 the current Sec.  3.306(c) 
provisions for applying the presumption of aggravation to veterans of 
entirely peacetime service prior to World War II for the same reasons 
we propose not to repeat the presumption of sound condition as it 
applies to this population of veterans.
    In proposed Sec.  5.245(a), based on current Sec.  3.306(a), we 
would replace the phrase ``active military, naval, or air service'' 
with ``active military service''. ``Active military service'' is 
defined in proposed Sec.  5.1 as having the same meaning as ``active 
military, naval, or air service''. See 71 FR at 16473. We make this 
change throughout part 5.
    We would restate the presumption in the active voice to provide 
that ``VA will presume that active military service aggravated a 
preexisting injury or disease if there was an increase in disability 
resulting from the injury or disease during service (or during any 
applicable presumptive period).'' In addition to improving clarity, 
this restatement would put the focus of the regulation on the severity 
of disability, consistent with 38 U.S.C. 1153 and the basic scheme of 
VA disability compensation as being for disability. 38 U.S.C. 1110, 
1131. Section 1153 of title 38, United States Code, provides that ``[a] 
preexisting injury or disease will be considered to have been 
aggravated by active military * * * service, where there is an increase 
in disability during such service * * *'' (emphasis added). Current 
Sec.  3.306(b), which explains how to implement the presumption of 
aggravation, states that ``[a]ggravation may not be conceded where the 
disability underwent no increase in severity''.
    Proposed Sec.  5.245(a) would state the presumption and when the 
presumption applies. Paragraph (b) would prescribe how to determine 
whether the evidence in a claim triggers the presumption. Paragraph (c) 
would prescribe the standard of proof and factors VA must consider to 
rebut the presumption.
    To clarify when to apply the presumption of aggravation and when to 
apply the presumption of sound condition, proposed paragraph (a) would 
state that the presumption under Sec.  5.245 applies only ``[w]hen an 
injury or disease was noted in the report of examination for entry into 
active military service.'' This is so because, if an injury or disease 
was not noted in the report of examination for entry, the veteran would 
be presumed sound on entry as to that injury or disease and the injury 
or disease would not have preexisted active military service.
    The presumption of sound condition (proposed Sec.  5.244(a)) would 
apply, unless it is rebutted. To rebut the presumption of sound 
condition as to any injury or disease, VA would have to determine by 
clear and unmistakable evidence that the injury or disease both 
preexisted service and was not aggravated by service. Thus, if VA 
determines that the presumption of sound condition has been rebutted as 
to an injury or disease, VA will necessarily have found by clear and 
unmistakable evidence that service did not aggravate the injury or 
disease, and the presumption of aggravation would not apply. Further, 
if service connection is granted based on application of the 
presumption of soundness in proposed Sec.  5.244, the disability rating 
principles in 38 CFR 4.22, ``Rating of disabilities aggravated by 
active service'', would not apply. See Wagner, 370 F.3d at 1096 
(``However, if the government fails to rebut the presumption of 
soundness

[[Page 53752]]

under section 1111, the veteran's claim is one for service connection. 
This means that no deduction for the degree of disability existing at 
the time of entrance will be made if a rating is awarded.'').
    Proposed Sec.  5.245(b)(1) through (b)(3) would provide points to 
consider in determining whether disability increased during service (or 
during any applicable presumptive period). Current Sec.  3.306(b) 
provides that ``[a]ggravation may not be conceded where the disability 
underwent no increase in severity during service''. The Federal Circuit 
has held that a disability is not presumed aggravated by service when 
there was no increase in the severity of disability during service. 
See, e.g., Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) 
(citation omitted).
    Proposed Sec.  5.245(b)(3) would restate current Sec.  3.306(b)(1). 
Proposed paragraphs (b)(1) and (b)(2) would be new. Paragraph (b)(1) 
would provide an explicit meaning for ``increase in disability'' as the 
term is used in 38 U.S.C. 1153. Paragraph (b)(2) would provide that a 
temporary flare-up of a preexisting injury or disease is not an 
``increase in disability''. These paragraphs would be consistent with 
long-standing VA practice and judicial precedents holding that 
temporary flare-ups of symptoms are not ``increase in disability'' as 
the phrase is meant in section 1153. Davis, 276 F.3d at 1346 (citing 
Maxson v. West, 12 Vet. App. 453, 459 (1999); Verdon v. Brown, 8 Vet. 
App. 529, 537 (1996); Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991)).
    Hunt established that temporary flare-ups of symptoms of a 
preexisting injury or disease in service are not an ``increase in 
disability''. 1 Vet. App. at 297. The Federal Circuit has stated