New PTSD Rules and Diagnosis by Private Physicians, USC 5125

We had posted earlier about the possible conflict between 38 U.S.C. 5125 and the report that VA was limiting PTSD diagnosis to using only VA Health Professionals, our concerns were addressed to some degree in the Federal Registry posting, see below:

"Thus, VA is not required to accept the report of a private physician as
sufficient for rating a claim in all circumstances."

Psychiatrist or Psychologist Employed by VA or With Whom VA Has Contracted

The majority of comments that VA received expressed disagreement with
the requirement that the evidentiary standard for establishing occurrence of
the stressor will be liberalized only if ‘‘a VA psychiatrist or psychologist, or a
psychiatrist or psychologist with whom VA has contracted, confirms that the
claimed stressor is adequate to support a diagnosis of [PTSD] and that the
veteran’s symptoms are related to the claimed stressor.’’ We have grouped
these comments together by subject matter and address them below.
Consistency With 38 U.S.C. 5125
Some commenters asserted that the rule is contrary to 38 U.S.C. 5125, which
one commenter contended means that VA must accept the opinion of a private
physician if the opinion is adequate for rating purposes. In support of this
contention, the commenter relied upon the heading of section 5125,
‘‘Acceptance of reports of private physician examinations.’’
Section 5125 provides that, ‘‘[f]or purposes of establishing any claim for
benefits under chapter 11 or 15 of [title 38], a report of a medical examination
administered by a private physician that is provided by a claimant in support of
a claim for benefits * * * may be accepted without a requirement for
confirmation by an examination by a physician employed by the Veterans
Health Administration [(VHA)] if the report is sufficiently complete to be
adequate for the purpose of adjudicating such claim.’’ (Emphasis added).
Generally, use of the word ‘‘may’’

Page 5

Federal Register/Vol. 75, No. 133/Tuesday, July 13, 2010/Rules and Regulations

suggests that a provision is permissive, not mandatory. Jama v. Immigration &
Customs Enforcement, 543 U.S. 335, 346 (2005). See 60 FR 27409 (May 24, 1995)
(final rule amending 38 CFR 3.326 to reflect section 5125’s authorization of
private physician’s examination reports if adequate for rating purposes). The
meaning of section 5125 is plain, and therefore, the heading of the section
cannot be used to limit its meaning. Bhd. of R.R. Trainmen v. Baltimore &
O.R. Co., 331 U.S. 519, 528–29 (1947).
Thus, VA is not required to accept the report of a private physician as
sufficient for rating a claim in all circumstances.

Full Federal Registry entry at: http://webcache.googleusercontent.com/search?q=cache:8tywGNn9d-AJ:edocket.access.gpo.gov/2010/pdf/2010-16885.pdf+%22federal+circuit%22+lay+evidence+1154&cd=28&hl=en&ct=clnk&gl=us&client=firefox-a