1. 1 VA Regulation Rewrite Project: Update January 2011 Randy A. McKevitt, William L. Pine, William F. Russo Office of Regulation Policy & Management (02REG) Office of the General Counsel U.S. Department of Veterans Affairs

2. What’s Wrong With Current VA Regulations? Many part 3 regulations are: Ambiguous. Ambiguous. Poorly organized. Poorly organized. Stated in terms that are outdated or overly technical. Stated in terms that are outdated or overly technical. Have obsolete provisions (e.g. Indian Wars & Spanish-American War). Have obsolete provisions (e.g. Indian Wars & Spanish-American War). 2

3. 3 Regulation Rewrite Project Mission Produce VA compensation and pension regulations that people can find, read, understand, and apply. 3

4. 4 Current Status of Rewrite Project Analyzed over 200 VSO suggestions. Analyzed over 200 VSO suggestions. Over 1800 pages of proposed rules published (20 packages). Last one on January 14, 2011. Over 1800 pages of proposed rules published (20 packages). Last one on January 14, 2011. 13 individual meetings with VSOs on their comments. 13 individual meetings with VSOs on their comments. Final Rule Segments approved by SECVA & OMB. Final Rule Segments approved by SECVA & OMB. 4

5. 5 Completion Schedule November 2011: Publish all packages together as Proposed Rule, including responses to comments. (90-day comment period). November 2011: Publish all packages together as Proposed Rule, including responses to comments. (90-day comment period). January 2013: Publish Final Rule with delayed applicability date. January 2013: Publish Final Rule with delayed applicability date. 5

6. 6 What Will Part 5 Look Like?

7. Part 3 Presumptive Regs: Poorly Organized 3.307 Presumptive service connection for chronic, tropical or prisoner-of-war related disease, or disease associated with exposure to certain herbicide agents; wartime and service on or after January 1, 1947. 3.307 Presumptive service connection for chronic, tropical or prisoner-of-war related disease, or disease associated with exposure to certain herbicide agents; wartime and service on or after January 1, 1947. 3.308 Presumptive service connection; peacetime service before January 1, 1947. 3.308 Presumptive service connection; peacetime service before January 1, 1947. 3.309 Disease subject to presumptive service connection. 3.309 Disease subject to presumptive service connection. 3.310 Disabilities that are proximately due to, or aggravated by, service- connected disease or injury. 3.310 Disabilities that are proximately due to, or aggravated by, service- connected disease or injury. 3.311 Claims based on exposure to ionizing radiation. 3.311 Claims based on exposure to ionizing radiation. 3.312 Cause of death. 3.312 Cause of death. 3.313 Claims based on service in Vietnam. 3.313 Claims based on service in Vietnam. 3.314 Basic pension determinations. 3.314 Basic pension determinations. 3.315 Basic eligibility determinations; dependents, loans, education. 3.315 Basic eligibility determinations; dependents, loans, education. 3.316 Claims based on chronic effects of exposure to mustard gas and Lewisite. 3.316 Claims based on chronic effects of exposure to mustard gas and Lewisite. 3.317 Compensation for certain disabilities due to undiagnosed illnesses. 3.317 Compensation for certain disabilities due to undiagnosed illnesses. 3.318 Presumptive service connection for amyotrophic lateral sclerosis 3.318 Presumptive service connection for amyotrophic lateral sclerosis (Non-sequiturs in bold) 7

8. Part 5 Presumptive Regs: Better Organized 5.261 Certain chronic diseases VA presumes are service connected. 5.261 Certain chronic diseases VA presumes are service connected. 5.262 Presumption of service connection for diseases associated with exposure to certain herbicide agents. 5.262 Presumption of service connection for diseases associated with exposure to certain herbicide agents. 5.263 Presumption of service connection for non-Hodgkin's lymphoma based on service in Vietnam. 5.263 Presumption of service connection for non-Hodgkin's lymphoma based on service in Vietnam. 5.264 Diseases VA presumes are service connected in a former prisoner of war. 5.264 Diseases VA presumes are service connected in a former prisoner of war. 5.265 Tropical diseases VA presumes are service connected. 5.265 Tropical diseases VA presumes are service connected. 5.266 Disability compensation for certain qualifying chronic disabilities due to undiagnosed illnesses. 5.266 Disability compensation for certain qualifying chronic disabilities due to undiagnosed illnesses. 5.267 Presumption of service connection for conditions associated with full-body exposure to nitrogen mustard, sulfur mustard, or Lewisite. 5.267 Presumption of service connection for conditions associated with full-body exposure to nitrogen mustard, sulfur mustard, or Lewisite. 5.268 Presumption of service connection for diseases presumed to be due to associated with exposure to ionizing radiation. 5.268 Presumption of service connection for diseases presumed to be due to associated with exposure to ionizing radiation. 5.269 Direct service connection for diseases associated with exposure to ionizing radiation. 5.269 Direct service connection for diseases associated with exposure to ionizing radiation. 5.270Presumptive service connection for amyotrophic lateral sclerosis. 5.270Presumptive service connection for amyotrophic lateral sclerosis. 8

9. 9 Overview of Part 5 Structure: Logical Subpart A: General Provisions: scope, definitions, standards of proof, ex parte policy. Subpart B: Service Requirements for Veterans: periods of war; definitions of active military service, active duty for training, etc.; miscellaneous groups given veteran status; VA determinations on character of military service. Subpart C: Adjudicative Process, General: VA benefit claims; duties of VA, rights and responsibilities of claimants and beneficiaries; general evidence requirements, general effective date rules, revision of decisions (CUE, et.), and protection of existing ratings. Subpart D: Dependents and Survivors: criteria for recognition as spouse, child, dependent parent.

10. 10 Overview of Part 5 (cont.) Subpart E: Claims for Service Connection and Disability Compensation: service connection; presumptions of service connection; special monthly compensation; spina bifida. Subpart F: Nonservice-Connected Disability Pensions and Death Pensions: Improved Pension, Elections of Improved Pension; Old- Law and Section 306 Pension. Subpart G: Dependency and Indemnity Compensation, Death Compensation, accrued benefits, month-of-death benefits. Subpart H: Special and Ancillary Benefits for Veterans, Dependents, and Survivors. Subpart I: Benefits for Certain Filipino Veterans and Survivors.

11. 11 Overview of Part 5 (cont.) Subpart J: Burial Benefits. Subpart K: Matters Affecting the Receipt of Benefits: Bars to benefits (line of duty, willful misconduct, alcohol and drug abuse, homicide) and forfeiture of benefits. Subpart L: Payments and Adjustments to Payments: rate setting rules, general rules on reductions and discontinuances of benefits (e.g. procedures and effective dates), reductions for hospitalization at government expense, elections, concurrent receipt, effect of other agency benefits. Subpart M: Apportionments to Dependents and Payments to Fiduciaries and Incarcerated Beneficiaries.

12. 12 Part 5 Has More Regulations... Part 3 Totals: 280 actual regulations 44 reserved spaces for new regulations Total: 324 Part 5 Totals: 389 actual regulations 431 reserved spaces for new regulations Total: 820 12

13. ...But They Are Shorter Part 5 “chunks” regulation text into shorter sections and paragraphs. Part 5 “chunks” regulation text into shorter sections and paragraphs. Makes it easier to use more paragraph headings and find relevant provisions. Makes it easier to use more paragraph headings and find relevant provisions. Makes it easier to read and comprehend the meaning of the provisions. Makes it easier to read and comprehend the meaning of the provisions. 13

14. 14 (b) Chronicity and continuity. With chronic disease shown as such in service (or within the presumptive period under §3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes (46-word sentence). This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the “Chunking” Example: Before: 38 CFR 3.303(b)

15. 15 heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date (54- word sentence). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic” (43-word sentence). When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of Before: 38 CFR 3.303(b) (cont.)

16. 16 evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned (55-word sentence). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Before: 38 CFR 3.303(b) (cont.)

17. 17 (c) Chronic residuals of injuries and chronic diseases—(1) General rule. VA will grant service connection for a current disability not clearly due to an intercurrent cause if: (i) The current disability is caused by a chronic disease and competent evidence establishes that the veteran had the same chronic disease in service or within an applicable presumptive period; or (ii) The veteran had an injury in service and currently has a disability due to chronic residuals of the same injury. After: 38 CFR 5.243

18. 18 (2) Proof that a disease or residual of an injury is chronic. For purposes of this paragraph (c), VA will consider the following to be chronic: (i) A chronic disease listed in § 5.261(d); (ii) A disease shown to be chronic by competent evidence; or (iii) A residual of an injury (such as scarring or nerve, muscle, skeletal, or joint impairment) shown to be chronic by competent evidence. (See also paragraph (d) of this section on establishing chronicity through evidence of continuity of signs or symptoms). After: 38 CFR 5.243 (cont.)

19. 19 Note to paragraph (c): Proof that a disease was chronic in service requires a combination of manifestations in service sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis in service including the word ‘‘chronic.’’ See also § 5.260(c), ‘‘Rebutting a presumption of service connection set forth in §§ 5.261 through 5.268.’’ Isolated findings in service, such as joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, would not alone establish the presence in service of a chronic disease, such as arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear- cut clinical entity at some later date. After: 38 CFR 5.243 (cont.)

20. 20 (d) Continuity of signs or symptoms. Where signs or symptoms noted in service, or during an applicable presumptive period, are not considered a chronic disease or residual of an injury under paragraph (c)(2) of this section, service connection is established when all of the following are shown by competent evidence: (1) The veteran had signs or symptoms of an injury or disease during active military service or during an applicable presumptive period for a disease; (2) The signs or symptoms continued from the time of discharge or release from active military service or from the end of the applicable presumptive period, until the present; and (3) The signs or symptoms currently demonstrated are signs or symptoms of an injury or disease, or the residuals of an injury or disease, to which paragraph (d)(1) of this section refers. After: 38 CFR 5.243 (cont.)

21. Part 5 Implementation Tasks VBA: VBA: IT changes IT changes M21-1MR changes M21-1MR changes Training VA staff on part 5 Training VA staff on part 5 BVA implementation BVA implementation 21