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
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What’s Wrong With
Current VA Regulations?
Many part 3 regulations are:
 Ambiguous.
 Poorly organized.
 Stated in terms that are outdated or
overly technical.
 Have obsolete provisions (e.g.
Indian Wars & Spanish-American
War).
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Regulation Rewrite
Project Mission
Produce VA compensation and
pension regulations that people
can find, read, understand,
and apply.
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Current Status of Rewrite Project
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Analyzed over 200 VSO suggestions.
Over 1800 pages of proposed rules
published (20 packages). Last one on
January 14, 2011.
13 individual meetings with VSOs on their
comments.
Final Rule Segments approved by SECVA
& OMB.
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Completion Schedule
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November 2011: Publish all packages
together as Proposed Rule, including
responses to comments. (90-day
comment period).
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January 2013: Publish Final Rule with
delayed applicability date.
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What Will Part 5 Look Like?
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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.
3.308 Presumptive service connection; peacetime service before January 1, 1947.
3.309 Disease subject to presumptive service connection.
3.310 Disabilities that are proximately due to, or aggravated by, serviceconnected disease or injury.
3.311 Claims based on exposure to ionizing radiation.
3.312 Cause of death.
3.313 Claims based on service in Vietnam.
3.314 Basic pension determinations.
3.315 Basic eligibility determinations; dependents, loans, education.
3.316 Claims based on chronic effects of exposure to mustard gas and Lewisite.
3.317 Compensation for certain disabilities due to undiagnosed illnesses.
3.318 Presumptive service connection for amyotrophic lateral sclerosis
(Non-sequiturs in bold)
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Part 5 Presumptive Regs:
Better Organized
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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.
5.263 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.
5.265 Tropical diseases VA presumes are service connected.
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.
5.268 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.
5.270 Presumptive service connection for amyotrophic lateral sclerosis.
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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.
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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; OldLaw 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.
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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.
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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
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. . .But They Are Shorter
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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 read and comprehend
the meaning of the provisions.
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“Chunking” Example:
Before: 38 CFR 3.303(b)
(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
14
Before: 38 CFR 3.303(b)
(cont.)
heart, nephritis, or pulmonary disease, first shown
as a clearcut clinical entity, at some later date (54word 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
15
Before: 38 CFR 3.303(b) (cont.)
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.
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After: 38 CFR 5.243
(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.
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After: 38 CFR 5.243 (cont.)
(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).
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After: 38 CFR 5.243 (cont.)
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 clearcut clinical entity at some later date.
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After: 38 CFR 5.243 (cont.)
(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.
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Part 5 Implementation
Tasks
 VBA:
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IT changes
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M21-1MR changes
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Training VA staff on part 5
 BVA
implementation
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