[Federal Register: January 8, 1999 (Volume 64, Number 5)]
[Rules and Regulations]               
[Page 1131-1132]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08ja99-16]

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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AJ04

 
Additional Disability or Death Due to Hospital Care, Medical or 
Surgical Treatment, Examination, or Training and Rehabilitation 
Services

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: In a document published as a final rule in the Federal 
Register on August 24, 1998 (63 FR 45004), we amended our adjudication 
regulations concerning awards of compensation or dependency and 
indemnity compensation for additional disability or death due to VA 
hospital care, medical or surgical treatment, examination, or training 
and rehabilitation services. The amendments provided that benefits are 
payable for additional disability or death caused by VA hospital care, 
medical or surgical treatment, or examination only if VA fault or ``an 
event not reasonably foreseeable'' proximately caused the disability or 
death. Further, the amendments provided that benefits are also payable 
for additional disability or death proximately caused by VA's provision 
of training and rehabilitation services.
    We established the amendments without prior notice and comment 
based on our conclusion that they consisted of only restatements and 
interpretations of statutory provisions. Judicial review has been 
sought on the basis that the rulemaking establishing the final rule 
constituted substantive rulemaking that required an opportunity for 
prior notice and comment. We believe that our action was legally 
correct. Even so, as provided in a settlement agreement, by this 
document we are rescinding the final rule of August 24. This moots the 
pending litigation. The rescinded rule will be considered to have no 
force or effect in any claim decided on or after August 24, 1998. 
Further, we intend to propose provisions similar to those in the 
rescinded rule in a document to be published in the Proposed Rules 
section of a future issue of the Federal Register. This will provide 
interested individuals an opportunity to comment on the proposed 
amendments.

DATES: Effective Date: January 8, 1999.

FOR FURTHER INFORMATION CONTACT: David Barrans, Staff Attorney (022), 
Office of General Counsel, Department of Veterans Affairs, 810 Vermont 
Avenue, NW, Washington, DC 20420, (202) 273-6332.

SUPPLEMENTARY INFORMATION: This final rule concerns restatements and 
interpretations of statutory provisions. Accordingly, in accordance 
with the provisions of 5 U.S.C. 553, it is promulgated without notice 
and comment and without a delayed effective date.
    The Secretary of Veterans Affairs hereby certifies that this rule 
will not have a significant economic impact on a substantial number of 
small entities as they are defined in the Regulatory Flexibility Act, 5 
U.S.C. 601-612. This rule only affects individuals. Therefore, pursuant 
to 5 U.S.C. 605(b), this rulemaking proceeding is exempt from the 
initial and final regulatory flexibility analysis requirements of 5 
U.S.C. 603-604.

    The Catalog of Federal Domestic Assistance program numbers are 
64.104 and 64.109.

List of Subjects in 38 CFR Part 3

    Administrative practice and procedure, Claims, Disability Benefits, 
Health Care, Pensions, Veterans, Vietnam.

    Approved: January 5, 1999.
Togo D. West, Jr.,
Secretary of Veterans Affairs.

    For the reasons set forth above, 38 CFR part 3 is amended as 
follows:

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity 
Compensation

    1. The authority citation for part 3, subpart A continues to read 
as follows:

    Authority: 38 U.S.C. 501(a), unless otherwise noted.

    2. In Sec. 3.358, the section heading and paragraph (a) are revised 
to read as follows:


Sec. 3.358  Compensation for disability or death from hospitalization, 
medical or surgical treatment, examinations or vocational 
rehabilitation training (Sec. 3.800).

    (a) General. Where it is determined that there is additional 
disability resulting from a disease or injury or an aggravation of an 
existing disease or injury suffered as a result of training, 
hospitalization, medical or surgical

[[Page 1132]]

treatment, or examination, compensation will be payable for such 
additional disability.

(Authority: 38 U.S.C. 1151)
* * * * *


Secs. 3.361 through 3.363  [Removed]

    2. Sections 3.361 through 3.363 are removed.


Sec. 3.800  [Amended]

    3. The introductory text to Sec. 3.800 is removed.

[FR Doc. 99-432 Filed 1-7-99; 8:45 am]
BILLING CODE 8320-01-U