[Federal Register: July 23, 2001 (Volume 66, Number 141)]
[Rules and Regulations]
[Page 38158-38159]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23jy01-17]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 20
RIN 2900-AK52
Rules of Practice: Medical Opinions From the Veterans Health
Administration
AGENCY: Department of Veterans Affairs.
ACTION: Interim final rule with request for comments.
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SUMMARY: This document amends the Department of Veterans Affairs' (VA)
Appeals Regulations to clarify that the Board of Veterans' Appeals
(Board) may obtain medical opinions from health care professionals in
VA's Veterans Health Administration.
DATES: Effective Date: This interim final rule is effective July 23,
2001.
Comment Date: Comments must be received on or before September 21,
2001.
ADDRESSES: Mail or hand-deliver written comments to: Director, Office
of Regulations Management (02D), Department of Veterans Affairs, 810
Vermont Ave., NW., Room 1154,
[[Page 38159]]
Washington, DC 20420; or fax comments to (202) 273-9289; or e-mail
comments to OGCRegulations@mail.va.gov. Comments should indicate that
they are submitted in response to ``RIN 2900-AK52.'' All comments
received will be available for public inspection in the Office of
Regulations Management, Room 1158, between the hours of 8 a.m. and 4:30
p.m., Monday through Friday (except holidays).
FOR FURTHER INFORMATION CONTACT: Steven L. Keller (01C), Senior Deputy
Vice Chairman, Board of Veterans' Appeals, Department of Veterans
Affairs, 810 Vermont Avenue, NW., Washington, DC 20420 (202-565-5978).
SUPPLEMENTARY INFORMATION: The Board of Veterans' Appeals (Board) is an
administrative body that decides appeals from denials of claims for
veterans' benefits. The Board's 59 Members decide about 35,000 to
40,000 cases per year.
For the purpose of deciding appeals, the Board sometimes obtains
medical opinions from the Veterans Health Administration (VHA), the
part of VA that provides medical treatment to veterans. The Board's
current rules of practice at 38 CFR 20.901(a) state that ``[t]he Board
may obtain a medical opinion from the Chief Medical Director of the
Veterans Health Administration of the Department of Veterans Affairs on
medical questions involved in the consideration of an appeal when, in
its judgment, such medical expertise is needed for equitable
disposition of an appeal.'' This provision has always been intended to
reflect that the Board may obtain medical opinions from appropriate
health care professionals in VHA. However, there has been some
confusion as to whether this provision permitted the Board to obtain a
medical opinion from an individual in VHA other than the Under
Secretary for Health (the title of Chief Medical Director was changed
to Under Secretary for Health). This document amends the rules of
practice at Sec. 20.901(a) by deleting the reference to ``Chief Medical
Director'' and by clarifying that the Board may obtain medical opinions
from appropriate health care professionals in VHA.
Under 38 U.S.C. 7109 and 38 CFR 20.901(d), the Board can request an
expert medical opinion, in addition to that available within the
Department. Under 38 CFR 20.901, the Board can also request opinions
from the ``Chief Medical Director,'' id. 20.901(a); the Armed Forces
Institute of Pathology, id. 20.901(b); and the Department's General
Counsel, id. 20.901(c). The U.S. Court of Appeals for Veterans Claims
has both recognized the Board's authority to seek a medical opinion
under 38 CFR 20.901(a), Perry v. Brown, 9 Vet. App. 2, 6 (1996), and,
in a 1998 case, noted that the Board's authority to obtain an expert
medical opinion irrespective of 38 U.S.C. 7109 was ``uncontested,''
Winsett v. West, 11 Vet. App. 420, 426 (1998), aff'd, 217 F.3d 854
(Fed. Cir. 1999) (unpublished decision), cert. denied, 120 S.Ct. 1251
(2000).
The Board has been using VHA medical opinions under 38 CFR
20.901(a) for many years. For example, from Fiscal Year (FY) 1993
through FY 1999, Board Members requested 1,235 such opinions. Reports
of the Chairman, Board of Veterans' Appeals, Fiscal Years 1993-1999. In
FY 1999, the Board requested 482 advisory opinions from VHA physicians,
compared with 100 requests from non-VA medical experts under 38 U.S.C.
7109. Report of the Chairman, Board of Veterans' Appeals, Fiscal Year
1999 at 23.
Advisory opinions requested from VHA physicians have typically been
provided in a much more timely manner than those obtained from non-VA
physicians and generally have been well-reasoned, succinctly stated,
and fully responsive to the questions asked by the Board. Additionally,
the thoroughness and specificity of many VHA advisory opinions have
provided sufficient information to allow the Board Members to issue
final decisions without the need to remand cases to the regional
offices to obtain the same information. As a result, this process
reduces the time a veteran must wait for a final resolution of the
appeal.
Since 1995, this process has been memorialized in a VHA
``Directive,'' which allocates the responsibilities between VHA and the
Board. VHA Directive 10-95-040 (Apr. 17, 1995); VHA Directive 2000-049
(Dec. 13, 2000). The latter directive, which replaces the former, may
be found on VA's internet site at http://www.va.gov/publ/direc/health/
direct/12000049.pdf.
This interim final rule concerns rules of agency procedure and
practice. Accordingly, under the provisions of 5 U.S.C. 553, we are
dispensing with prior notice and comment and a delayed effective date.
Paperwork Reduction Act
This document contains no provisions constituting a collection of
information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).
Regulatory Flexibility Act
The Secretary hereby certifies that this interim final 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 will affect VA beneficiaries and will not
affect small businesses. Therefore, pursuant to 5 U.S.C. 605(b), this
interim final rule is exempt from the initial and final regulatory
flexibility analyses requirement of sections 603 and 604.
List of Subjects in 38 CFR Part 20
Administrative practice and procedure, Claims, Veterans.
Approved: July 9, 2001.
Anthony J. Principi,
Secretary of Veterans Affairs.
For the reasons set out in the preamble, 38 CFR part 20 is amended
as set forth below:
PART 20--BOARD OF VETERANS' APPEALS: RULES OF PRACTICE
1. The authority citation for part 20 continues to read as follows:
Authority: 38 U.S.C. 501(a) and as noted in specific sections.
2. Section 20.901(a) is revised to read as follows:
Sec. 20.901 Rule 901. Medical opinions and opinions of the General
Counsel.
(a) Opinion from the Veterans Health Administration. The Board may
obtain a medical opinion from an appropriate health care professional
in the Veterans Health Administration of the Department of Veterans
Affairs on medical questions involved in the consideration of an appeal
when, in its judgment, such medical expertise is needed for equitable
disposition of an appeal.
(Authority: 38 U.S.C. 5107(a))
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[FR Doc. 01-18172 Filed 7-20-01; 8:45 am]
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