PREC 7-92 Applicability of VA Manual M21-1, Part 1, Para. 50.45 Citation: Vet. Aff. Op. Gen. Couns. Prec. 7-92, VAOPGCPREC 7-92, 1992 QUESTIONS PRESENTED:
1. Do the provisions of VA Adjudication Procedure Manual M21-1 (M21-1), Part I, paragraph 50.45 constitute approved instructions of the Secretary which are binding on the Board of Veterans' Appeals (BVA), pursuant to 38 U.S.C. § 7104 (c)?
2. Do any of the provisions of M21-1, Part I, paragraph 50.45 constitute "substantive rules" which are the equivalent of Department of Veterans Affairs (VA) regulations?
3. If it is determined that the provisions of M21-1, part I, paragraph 50.45 are binding on BVA:
a. What evidence is considered satisfactory proof that a veteran "engaged in combat with the enemy?"
b. Does a veteran's receipt of a particular citation or his military occupational specialty sufficiently prove combat stressor exposure for purposes of establishing service connection for post-traumatic stress disorder (PTSD)?
c. When the existence of combat service is established, or the veteran has provided a credible account of an in-service stressful event, and a mental health professional has diagnosed PTSD, under what circumstances, if any, may BVA and other VA adjudicators deny a claim for service connection for PTSD,
notwithstanding a diagnosis of PTSD, on the grounds that the stressor as described by the veteran is of insufficient magnitude to support a diagnosis of PTSD?
d. Under what circumstances may BVA and other VA adjudicators challenge a medical opinion as to the relationship between an in-service stressor and current symptoms, in light of the Court of Veterans Appeals' (COVA) holding in Wood v. Derwinski, U.S. Vet. App. No. 89-50 (March 28, 1991)? HELD:
The provisions of Adjudication Procedure Manual M21-1, Part I, paragraph 50.45 do not constitute "instructions of the Secretary" within the meaning of 38 U.S.C. § 7104(c). The second and fourth sentences of M21-1, Part I, paragraph 50.45d and the change to paragraph 50.45e made by Veterans Benefits Administration (VBA)
Interim Issue 21-91-1 regarding the development of evidence in cases involving post-traumatic stress disorder, constitute substantive rules which are invalid because they were not promulgated in accordance with the rulemaking procedures prescribed by 5 U.S.C. §§ 552(a)(1), 553 and 38 C.F.R. § 1.12.
Additionally, because these substantive rules were issued by the Chief Benefits Director in violation of the delegation of rulemaking power to the Secretary of Veterans Affairs pursuant to 38 U.S.C. § 501 they are not binding on the Board of Veterans' Appeals or the Veterans Benefits Administration.
VETERANS ADMINISTRATION GENERAL COUNSEL
Vet. Aff. Op. Gen. Couns. Prec. 07-92
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