In the NPRM, we stated:

Title 38 CFR 3.159 is currently the subject of a separate VA rulemaking which will implement changes made by section 701 of Pub. L. 108-183, 117 Stat. 2670. When that rulemaking is complete, we plan to repeat the language of the amended § 3.159 as § 5.90. We therefore propose in this rulemaking to reserve space for proposed § 5.90.

(70 FR 24683 (May 10, 2005))

VA has published the final rule amending 38 CFR 3.159 and we are now inserting the current language of § 3.159 as § 5.90 (RIN 2900-AM17, “Notice and Assistance Requirements and Technical Correction”, 73 FR 23353, Apr. 30, 2008, with amendment 73 FR 24868, May 6, 2008; based on § 3.159). We propose to remove the definitions of competent medical evidence and competent lay evidence, revise the definition of competent expert evidence, and place the definitions in § 5.1. We have reorganized § 5.90 accordingly and changed the references to part 3 regulations to refer to part 5 regulations.Start Printed Page 71078

In addition to the provisions of § 3.159, we propose to include in § 5.90 the provisions of current § 3.109(a). These provisions relate closely to the other provisions in § 5.90 and so it is logical to move them into that rule. However, we propose to clarify the sentence, “Information concerning the whereabouts of a person who has filed a claim is not considered evidence” in § 5.90(b)(3). This sentence means that if a claimant submits information or evidence concerning his or her mailing address, that is not considered information or evidence under paragraph (b). We propose to revise the sentence accordingly to clarify its meaning. The only other change we propose is that we have simplified the scope sentence stated in § 3.109(a)(2) so that it simply says that the rule applies to all part 5 applications.

Subsequent to the publication of proposed § 5.90, section 504 of Public Law 112-154 (2012) amended 38 U.S.C. 5103 by removing the requirement that a claimant submit “a complete or substantially complete application” as a prerequisite to VA providing notice of information and evidence needed to substantiate the claim. Section 504 also amended § 5103 to relieve VA of the requirement to provide such notice “to any claim or issue where the Secretary may award the maximum benefit in accordance with this title based on the evidence of record.” We propose to include these statutory changes § 5.90.

Section 505 of Public Law 112-154 (2012) extensively amended 38 U.S.C. 5103A regarding VA's duty to assist claimants. VA plans to conduct a rulemaking to implement § 505 in part 3 and will incorporate those part 3 regulations into part 5.

§ 5.91 Medical Evidence for Disability Claims.

One commenter urged VA to replace the word “may” with “shall,” concerning the acceptance of private medical evidence, because this would be consistent with the Congressional intent behind 38 U.S.C. 5125. Although that statute uses the word “may,” the commenter asserts that Congress meant to give VA authority to accept private medical examination reports in place of VA examination reports, but that once VA has determined to accept such private reports generally, it cannot accept or reject such reports “on a whim”. The commenter asserted, “[s]uch unwarranted discretion defeats the very purpose of the rule.”

We disagree that Congress' intent was merely to give VA authority to accept private medical examination reports generally. Rather, the plain language of 38 U.S.C. 5125 allows VA discretion to accept or reject such evidence in each individual case. We do not agree that this process defeats the purpose of the rule. This process allows VA the necessary discretion to reject private reports which, although technically “adequate for purposes of adjudicating a claim”, VA considers to be potentially biased or unreliable. We therefore decline to make the change suggested by this commenter.

Another commenter suggested that VA revise § 5.91 to require VA regional offices to “give a clear and precise explanation for why the claimant's medical evidence is not sufficient to render a VA examination unnecessary.” We decline to adopt this suggestion because such an explanation would be of little use to claimants. VA has a duty to make reasonable efforts to obtain the evidence necessary to properly decide each claim. In addition to the medical evidence provided by the claimant, VA will schedule a VA examination if one is “necessary to decide the claim.” See 38 U.S.C. 5103A. See also § 5.90. VA obtains evidence from multiple sources in most cases and it would be unduly burdensome, and a waste of resources, for VA to be required to explain why it has obtained every piece of evidence. VA is required to explain the reasons for any decision adverse to the claimant and to include a summary of the evidence considered in making the decision on the claim. See 38 U.S.C. 5104. See also § 5.83. These procedures adequately inform the claimant of the relative probative value to any medical evidence submitted and we propose to make no changes based on this comment.

§ 5.92 Independent Medical Opinions.

In initially proposed § 5.92 we repeated the content of current 38 CFR 3.328 without change.

One commenter expressed concern that § 5.92 could be confusing by implying that VA will obtain independent medical opinions in place of VA medical examinations. We do not agree and we propose to make no changes based on this comment. Initially proposed § 5.92 did not state or imply that we would not comply with the provisions of § 3.159. The evidence obtained under the provisions of § 5.92 will generally supplement the other medical evidence with an independent medical opinion “[w]hen warranted by the medical complexity or controversy”.

Another commenter noted that § 5.92(a) gave VA authority to obtain an independent medical opinion when “warranted by the medical complexity or controversy” while paragraph (c) stated that, in order for VA's Compensation and Pension Service to approve requests for such opinions, the claim must pose “a medical problem of such obscurity,” complexity, or controversy. We agree that it would be logical to state the criteria for such opinions using the same terminology in both paragraphs and we have removed the word “obscurity” from paragraph (c). Both paragraphs now use the language used in the authorizing statute, 38 U.S.C. 5109.

Another commenter urged VA to revise § 5.92 to require that VA provide claimants with copies of all communications between the VA regional office and the institution providing the independent medical opinion. The commenter asserted that, “[s]uch a requirement for openness . . . will ensure the fairness and integrity of this new procedure.”

As a preliminary matter, we note that the procedure to obtain an independent medical opinion is not new and has been contained in § 3.328 since 1990. See 55 FR 18602 (May 3, 1990). VA is required by 38 U.S.C. 5109 to furnish the claimant with notice that an advisory opinion was requested and also a copy of the opinion when it is received by VA. See § 5.92(d). Furnishing the notice of the intent to request the independent medical opinion and a copy of the opinion to the claimant sufficiently advises the claimant of the status of the independent medical opinion request and results. We do not believe that it is necessary to furnish the claimant with notice or a copy of every communication VA may have with the individual or organization preparing the independent medical opinion. Such communications as a telephone call or an electronic mail message to clarify a typographic error or other minor issues would not assist the claimant in the presentation of the claim. Additionally, records of these communications may be obtained by the procedures discussed earlier concerning the procedures for a claimant to obtain copies of evidence. We propose to make no changes based on this comment.

One commenter urged VA to include a provision in § 5.92(d) allowing a claimant a specified period of time to respond to an independent medical opinion that is adverse to the claimant. We do not believe this change to be necessary because, at the time that VA is seeking the independent medical opinion, the claimant is informed that the independent medical opinion is being sought and also what specific information is being sought. This provides the claimant ample time and Start Printed Page 71079opportunity to seek, obtain, and submit their own independent medical opinion should they wish to do so. We also note that once the claimant receives a copy of the independent medical opinion, even if the claim has been denied, he or she has the opportunity to respond. We propose to make no changes based on this comment.

§ 5.93 Service Records Which Are Lost, Destroyed, or Otherwise Unavailable

One commenter asserted that the force of § 5.93 is diminished due to the confusing use of terminology. The commenter argued that the phrase, “alternative evidence” should be replaced with, “evidence from alternative sources.” Upon review of the regulation, we propose to change the regulation according to the commenter's suggestion. As noted by the commenter, the evidence sought may be a copy of the missing evidence, not alternate evidence.

§ 5.99 Extensions of Certain Time Limits

In the AL82 NPRM, we inadvertently failed to include provisions contained in current 38 CFR 3.109(b). We are doing so now in § 5.99. This rule restates § 3.109(b) without substantive change. We are clarifying in § 5.99(c) that while late requests for extensions will be permitted under some circumstances, as is currently the case, no extension of time will be granted after VA has made a decision on the claim to which the information or evidence relates and the time to appeal that decision has expired.

§ 5.100 Time Limits for Claimant or Beneficiary Responses

One commenter felt that VA should specify that the holidays referenced in the regulation are Federal holidays. We agree and have added the word, “Federal” before holidays in § 5.100(a).

One commenter felt that this regulation should specify whether the date of mailing or the date of receipt by VA would be the ending date of the applicable time period provided to a claimant to respond to a VA communication. We propose to make no changes based on this comment. This regulation is intended to specify how to calculate a time limit. Within part 5, where a response is required to be submitted within a certain time, all the sections specify how the ending date of the applicable time period provided to a claimant will be calculated. This is generally the date of receipt by VA of whatever evidence or information is requested, if received within the applicable time period. To include the ending date information here would be redundant.

One commenter felt that VA should revise this regulation since the commenter felt that sometimes a VA letter may be signed after the last mail pickup for that day. The letter would not actually be mailed until the following workday. The commenter felt that this rule provided for a “convenient and arbitrary assumption that disfavors claimants.” A second commenter agreed, stating that the word “considered” should be removed from the second to last sentence in order to avoid having VA rely on a date that it may know to be erroneous.

We propose to make no changes based on this comment. This regulation provides that the first day of the specified time period will be excluded in computing the time limit for any action required of a claimant. This ensures that the claimant is generally provided the full time period. Additionally, the time periods provided allow ample time for the claimant to respond. While it is true that the 1-day grace period provided by not counting the date of the letter in the time period does not provide for those situations where the letter is dated on a Friday afternoon, but not actually posted until Monday, the claimant still has been provided sufficient time to respond to any requests for information or evidence.

One commenter urged VA to adopt a system of notice for determining the time periods for claimants or beneficiaries' responses similar to that found in 41 U.S.C. 609(a)(3), which provides that the period of time begins running when the notice has been received. VA currently begins the period of time from the date of mailing as shown by the date of the letter sent to a claimant or beneficiary. The commenter felt VA could better afford the minor expense of certified mail than could the claimant or beneficiary.

VA communicates with claimants and beneficiaries at various stages in the adjudication process, using various means. It would not be appropriate to regulate the manner of all such communications because VA needs discretion to use the most effective means of communications and because such means may change over time. Additionally, VA routinely sends hundreds of thousands of pieces of mail to veterans, claimants, and beneficiaries, as well as their representatives. While the burden for sending any one piece of mail by certified mail is small, the expense and time required to send all notices by certified mail would be overwhelming, both in increased monetary cost and human resources expended. Routinely sending certified mail to veterans, claimants, or beneficiaries is not necessary, nor, in most situations, helpful to the veterans, claimants, or beneficiaries. VA provides sufficient time for a veteran, claimant, or beneficiary to respond to the communications we send them. It is not burdensome for the veteran, claimant, or beneficiary to respond, when necessary, within the time limits specified in the communication. The additional two or three days that would be provided by starting the time period from date of receipt instead of date of mailing would rarely assist a veteran, claimant, or beneficiary. For these reasons, we decline to make any changes based on this comment.

§ 5.101 Requirement To Provide Social Security Numbers

Initially proposed § 5.101 explained the statutory requirement that claimants and beneficiaries must provide VA with their Social Security numbers and their dependents' numbers.

One commenter urged VA to excuse those claimants or beneficiaries who, for good cause, fail to provide their Social Security number. The commenter urged that, if VA reduces or discontinues benefits, it should resume the benefits retroactively from the effective date of the reduction, if the person had good cause for the failure.

We note that, as stated in initially proposed § 5.101(f), “A claimant or beneficiary is not required to provide a Social Security number for any person to whom a Social Security number has not been assigned.” Other than this, we are unaware of any reason which would constitute good cause for a claimant or beneficiary failing to provide VA with his or her Social Security number, nor does the commenter offer any such example. We therefore propose to make no change based on this comment.

Initially proposed § 5.101(d) stated, “[i]f a claimant or beneficiary provides VA with the requested Social Security number, VA will resume payment of benefits at the prior rate, effective on the date VA received the Social Security number, provided that payment of benefits at that rate is otherwise in order.” One commenter noted that under paragraph (d), if a claimant or beneficiary failed to furnish the required Social Security number within the deadline but later provided it, VA would pay benefits only from the date it received the Social Security number. The commenter noted that § 5.101 would treat claimants and beneficiaries disparately in that if they ultimately provided VA their Social Security Start Printed Page 71080number, the former would have benefits granted from the date of claim, while the later would have benefits restored only from the date he or she provided the number. The commenter objected to this disparate treatment, asserting:

When a claimant receiving benefits is requested to provide a social security number and does not promptly comply, VA may certainly administratively suspend payment (`terminate the payment') of benefits pursuant to § 5101(c), but the benefits should be resumed effective the date of suspension if the requested information is provided within 1 year. Such a rule would be consistent with the time an applicant has to provide the social security number under sections 5102(c) and 5103(b) and the general rule in 38 CFR 3.158 (2004) that a claim will be considered abandoned only if the requested information is not provided within 1 year.

The commenter asserted that this rule would be contrary to 38 U.S.C. 5102 and 5103, which do not explicitly authorize VA to reinstate benefits only from the date a beneficiary ultimately provides VA his or her Social Security number. In reviewing paragraph (d) in response to this comment, we noted that VA cannot “resume” payments to a claimant, since VA has not begun paying such a person. We therefore propose to remove the term “claimant” from this paragraph, so that it would relate only to beneficiaries and not to claimants.

Regarding the disparity noted by the commenter, we first note that it is not inconsistent with the relevant statutes, 38 U.S.C. 5101-5103. Sections 5102-5103 only cover claims, not running awards, so they are not germane to the disputed provision. Section 5101(c)(2) states that “the Secretary shall deny the application of or terminate the payment of compensation or pension to a person who fails to furnish the Secretary with a social security number required to be furnished pursuant to paragraph (1) of this subsection. The Secretary may thereafter reconsider the application or reinstate payment of compensation or pension, as the case may be, if such person furnishes the Secretary with such social security number.”

This statute, and its implementing regulation 38 CFR 3.216, leave a gap regarding the effective date for the reinstatement of benefits. VA's long-standing practice has been to resume benefits effective the date the beneficiary ultimately provides the social security number. If the rule were changed as the commenter urges, VA would in such cases have to make retrospective determinations, in some cases going back many years, on whether the former beneficiary actually met all the entitlement criteria for the benefit during the entire retroactive period. This would consume considerable VA resources when compared with the rule proposed in § 5.101(d). Furthermore, there is no indication that our proposed rule creates a hardship for beneficiaries. For these reasons, we propose to make no change based on this comment.

Initially proposed § 5.101(e), entitled, “Claimant's application for VA benefits ”, stated, “[i]f 60 days after VA requests a Social Security number, the claimant fails either to provide the requested Social Security number or to show that no Social Security number was assigned, VA will deny the claim.” One commenter objected to this provision, noting that it did not include a provision allowing a claimant 1 year to submit his or her Social Security number. The commenter noted that 38 U.S.C. 5102 and 5103 allow a claimant 1 year to provide the information needed to complete an application. The commenter noted that while VA has the authority to deny the application earlier than the expiration of the 1 year period, if the information is received no later than 1 year after VA's request, VA must reconsider the application as if the information had been furnished on the application.

After reviewing the applicable statutes and VA's other regulations, we agree with the commenter that it would be appropriate to clarify that a claimant has 1 year in which to submit the requested Social Security number. We therefore propose to add a sentence to § 5.101(e), based on a provision from § 5.90(b)(1)(i) (based on current 38 CFR 3.159(b)(1). This new sentence states, “[i]f VA denies the claim or denies benefits for the dependent, and the claimant subsequently provides the Social Security number no later than 1 year after the notice, then VA must readjudicate the claim.”

In making this proposed change based on the comment, we noted that the 60-day deadline in 38 CFR 3.216 applies only to beneficiaries, not to claimants. In order to be consistent with § 5.90(b)(1)(i), we propose to revise the 60-day period in § 5.101(e) to 30 days. In addition to being consistent with § 5.90(b)(1)(i), we believe that 30 days is sufficient time for claimants to provide VA with requested Social Security numbers.

Subsequent to the publication of proposed § 5.101, section 502 of Public Law 112-154 (2012) amended 38 U.S.C. 5101 by adding a new paragraph stating if an individual has not attained the age of 18 years, is mentally incompetent, or is physically unable to sign a form, a form filed under paragraph (1) for the individual may be signed by a court-appointed representative, a person who is responsible for the care of the individual, including a spouse or other relative, or an attorney in fact or agent authorized to act on behalf of the individual under a durable power of attorney. If the individual is in the care of an institution, the manager or principal officer of the institution may sign the form. The term `mentally incompetent' with respect to an individual means that the individual lacks the mental capacity—

• To provide substantially accurate information needed to complete a form; or
• to certify that the statements made on a form are true and complete.

Section 502 also added Taxpayer Identification Number (TIN) to the Social Security number requirement in § 5101. We have updated § 5.101 to reflect these statutory changes.

§ 5.103 Failure To Report for VA Examination or Reexamination

The preamble to initially proposed § 5.103 stated that part 5 would not repeat § 3.655(a) because it is unnecessary. 70 FR 24680, 24685, (May 10, 2005). To clarify, that statement correctly applies only to the first sentence of § 3.655(a). The examples of good cause in § 5.103(f) derive from the second sentence of § 3.655(a).

One commenter felt that the examples provided in the regulation to determine what constitutes “good cause” for failure to report for a scheduled VA examination were too narrow and may lead VA to apply too high a standard to determine what constitutes “good cause”.

The examples of “good cause” for failure to report for a scheduled VA examination in initially proposed § 5.103(f) are the same examples included in the full revision of § 3.655(a), effective December 31, 1990. 55 FR 49520, Nov. 29, 1990. The last sentence of § 5.103(f) is new and requires that VA consider each reason given for missing a VA examination on a case-by-case basis. Use of the examples that have been in place since 1990, together with the last sentence, ensures that determinations concerning whether the veteran had “good cause” for not reporting to the examination will not change. We propose to make no changes based on this comment.

One commenter recommended not repeating § 3.655 in part 5. We disagree because if VA did not repeat this rule, there would be no rule about how to proceed with adjudication if a claimant Start Printed Page 71081fails to report for an examination that VA has concluded is necessary to decide the claim. The commenter did not state how it would benefit claimants or VA to do without it. Omission of this rule would risk disparate treatment of claimants with similar claims. Avoiding disparate results in similar situations is an important object of regulations. To promote this objective, VA will repeat the rule in part 5.

The same commenter recommended, alternatively, significantly revising the regulation to eliminate several problems he said it has. The commenter asserted there is no logical reason to distinguish between original and other claims. We interpret the comment to mean that VA should treat a failure without good cause to report for a VA examination the same whether the examination is for an original disability compensation claim or for any other claim.

Before 1991, § 3.655 was silent about VA examinations in original disability compensation claims. 38 CFR 3.655 (1990). It applied only to rating action to be taken upon a failure to report for examination of a beneficiary with an ongoing award of benefits, providing for discontinuance of payments. See Wamhoff v. Brown, 8 Vet. App. 517, 520 (1996) (discussing historical § 3.655). VA amended § 3.655 in 1990 to include the requirement to report for VA examination (formerly in § 3.329, which it rescinded) and to provide for unique treatment of original disability compensation claims upon the claimant's failure to report for examination.

There are good and practical reasons to treat the failure to report for an examination in an original claim for disability compensation differently than in other claims. Establishing that a disability is service connected is an element of an original claim for disability compensation that precedes determination of the severity of disability. See Barrera v. Gober, 122 F.3d 1030, 1032 (Fed. Cir. 1997) (explaining “up stream” and “down stream” elements of veterans benefits claims); Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Evidence sufficient to decide whether a disability is service connected is likely to be of record without the examination, for example, in the case of a battlefield amputee or a veteran who contracted a presumptively service-connected chronic disease. Even though the evidence of record might be uninformative about the current extent of disability, it is practicable and efficient to decide such a claim on the evidence of record without the examination, even at the risk of an imprecise initial rating. In contrast, current medical information is likely to be lacking and indispensable to deciding the other types of claims named in the regulation.

The predicate for ordering an examination is that the information to be gained from it is necessary to establish entitlement or confirm continued entitlement to a benefit. In other words, if VA has determined that it cannot decide a claim, or an element of a claim, without the evidence derived from the examination, it would squander resources valuable to the entire veteran community to adjudicate the claim, and it preserves resources to deny the claim upon failure to report for the examination without good cause. We therefore propose to not make any changes in response to this comment.

The object of a VA examination in an original disability compensation claim could be to address one of the elements of proof of service connection, see § 5.243, “Establishing service connection for a current disability.”, to ascertain the current severity of disability (a determination VA initially makes upon finding that a disability is service connected), or both. Though the examination could be indispensable to making the most accurate current rating, the benefit to the claimant and practicality of deciding the service-connection element of the claim warrants the unique treatment of original compensation claims.

The same commenter asserted the distinction between types of claims invites fraud. The commenter did not explain how the distinction would invite fraud. We propose to make no changes based on this comment.

The same commenter noted that we had not defined the terms, “other original claim” and “new claim.” The commenter noted that neither term is found in the applicable statutes. The commenter felt this section should be revised so that the terms are understood by claimants and so that the terms fit within the regulatory framework.

In § 5.57, we defined several types of claims. We defined “original claim” in § 5.57(b) as “the first claim VA receives from an individual for disability benefits, for death benefits, or for monetary allowance under 38 U.S.C. chapter 18.” Although not defined in the statutes, the term “original claim” is found in 38 U.S.C. 5110 and 5113. Consistent with how the term is used in current 38 CFR 3.655(b), our use of “other original claim” was intended to mean any original claim arising under part 5 other than an original disability compensation claim. This would include, for example, a claim for a monetary allowance based on spina bifida under 38 U.S.C. chapter 18. We believe that when read in conjunction with § 5.57(b), this term is logical and understandable.

We have not defined the term “new claim”. Based on this comment, we are removing the term from § 5.103(b)(2). We have determined that the term is not needed to assist the reader in understanding what is intended by this regulation.

In addition to the comment about specific terms, the commenter asserted that VA should revise the regulation so its terms are understandable to laypersons and “fall within the rest of the regulatory framework.” The commenter further asserted that the regulation does not fit within the existing statutory framework and opinions of the [VA] General Counsel. The commenter did not explain how the regulation fails to fit within VA's statutory or regulatory framework or cite any precedent opinion of the General Counsel that the regulation violates. Consequently, we do not find anything in this comment to which VA can respond, and we propose to make no changes to the regulation in response to it.

Finally, the commenter recommended an “escape clause” that precludes “endless good cause.” The object would be to permit VA to decide a claim after a year if a claimant fails to report for an examination for a good cause of indefinite duration, such as being in a coma. The commenter suggested that the regulation should provide for VA to reschedule an examination missed for good cause if that good cause ends within 1 year. We construe the commenter to mean that if the good cause for failure to report for a VA examination persists for more than a year after the date of the examination appointment the claimant did not keep, VA would decide the claim on the evidence of record.

We will not add the suggested provision for five reasons. First, the suggestion would abrogate the distinction between original disability claims and other claims. Whether the claimant failed to report for good cause or no cause, without the examination that VA determined is necessary to decide a claim (other than an original disability compensation claim), the status of the evidence would still be such that VA could not grant the claim without the examination. Second, it is to the advantage of a claimant to suspend the claim until the contingency that prevented the claimant from reporting for the examination is removed, because it leaves the claimant Start Printed Page 71082in control of his or her claim. Third, there is negligible cost or burden to VA to suspend adjudication while the good cause of the claimant's inability to report for an examination persists. Fourth, there is no advantage to VA to decide a claim it has determined lacks crucial evidence. Deciding a claim sooner rather than later under these circumstances is not sufficient reason for the rule the commenter suggests. The failure to report for an examination for good cause is not like the failure to submit requested evidence that VA may consider abandonment of a claim. § 5.136, “Abandoned claims”. Finally, the claimant can always eliminate the need for a VA examination by submitting other medical reports sufficient to serve as a VA examination. § 5.91(a), “Medical evidence rendering VA examination unnecessary.” If the claimant submits a medical report that VA accepts as adequate to the needs of the claim, the examination for which the veteran cannot report would cease to be one necessary to establish entitlement to the benefit claimed. The question of how VA should respond to a failure to report for a necessary VA examination for good cause would be moot.

In reviewing initially proposed § 5.103, we noted that the last two sentences of paragraph (d)(1) stated, “The letter [proposing to reduce or discontinue benefits] must include the date on which the proposed discontinuance or reduction will be effective, and the beneficiary's procedural rights. See §§ 5.80 through 5.83.” We believe it would be more precise to refer the reader to the procedural rights which are listed in such a letter. We therefore propose to restate the sentences as “The notice must include the date on which the proposed discontinuance or reduction will be effective, and the beneficiary's procedural rights as listed in § 5.83(a)(1) through (4).”

In responding to these comments, we noted that the initial NPRM failed to explain our addition of the third sentence of § 5.103(a): “If a claimant or beneficiary, with good cause, fails to report for a VA examination or reexamination, VA will reschedule the examination or reexamination.” Though §§ 3.326(a) and 3.327(a) provide for scheduling VA examinations, and § 3.655 prescribes VA action upon a claimant's failure to report for a necessary examination without good cause, nothing in part 3 specifically states that VA will reschedule an examination a claimant missed with good cause, which is VA's standard procedure. We propose to set forth this important point in paragraph (a).

§ 5.104 Certifying Continuing Eligibility to Receive Benefits

In initially proposed § 5.104(c), we removed the reference to the effective date provisions. In part 5, the effective date provisions are not contained within one regulation, but are located with the regulation concerning the benefit to which the provisions apply. To include these provisions would result in an extremely long and complex paragraph which would not be helpful to the claimants or beneficiaries.

Changes in Terminology for Clarity and/or Consistency

The changes in terminology in this final rulemaking are made primarily for purpose of achieving consistency throughout our part 5 regulations. We replaced the word “evaluation” with “rating;” the term “on behalf of” with “for” or “to or for” where appropriate; and the word “notify” with “send notice to”. As noted earlier, we are removing the modifying term “predetermination” prior to the term “hearing”.

General Evidence Requirements, Effective Dates, Revision of Decisions, and Protection of Existing Ratings AM01

In a document published in the Federal Register on May 22, 2007, we proposed to amend Department of Veterans Affairs (VA) regulations governing general evidence requirements, effective dates, revision of decisions, and protection of existing ratings, to be published in part 5. 72 FR 28770, May 22, 2007. We provided a 60-day comment period that ended July 23, 2007. We received submissions from five commenters: Paralyzed Veterans of America, Vietnam Veterans of America, Disabled American Veterans, and two members of the general public.

§ 5.130 Submission of Statements, Evidence, or Information Affecting Entitlement to Benefits

We propose to revise and reorganize initially proposed § 5.130 for clarity. We propose to add the word “claimant” to the regulation to accurately reflect that this regulation covers submissions by both claimants and beneficiaries. Proposed § 5.130 was derived from § 3.217, which was originally issued to permit modification of existing awards based on electronic and oral reporting of changes, including, but not limited to, income and dependents. See 66 FR 20220, Apr. 20, 2001. The reference to “beneficiary” reflects that original, limited purpose. However, given the broad language of the regulation and our stated intent to cover all types of submissions, we are explicitly including claimants. All claimants and beneficiaries, or their representatives or fiduciaries, must meet all requirements of this section, such as using a specific form providing specific information, providing a signature, or providing a certified statement.

The initially proposed rule referred to “other electronic means” of submissions. We propose to add “that the Secretary prescribes” in paragraphs (a)(1) and (b)(1), to clarify that VA will determine the means or medium of submission it will accept. Additionally, this phrase allows for technological changes over time.

Whereas the initially proposed regulation did not address claimants, it did not distinguish between them and beneficiaries. We propose to revise the regulation to distinguish between the media that claimants may use to file statements, evidence, or information, and the media that beneficiaries may use. VA currently accepts email and oral submissions only from beneficiaries, not from claimants. As revised, paragraph (a) would address submissions from claimants and provide the acceptable media for those submissions. Paragraph (b) would address submissions from beneficiaries and allow submissions, either orally or by email. Paragraph (b)(4) would prescribe VA action upon receipt of an oral statement.

One commenter questioned why we used the word “may” instead of “will” when referring to how VA will use verbal information provided by a beneficiary or fiduciary. We explained in the preamble to the proposed rule that the word “may” was more accurate because “VA may determine that the information or statement needs to be verified through other means”. However, the commenter pointed out that VA will use the evidence, even if it is just to “initiate an investigation to . . . confirm and continue an existing award”, or to contradict prior evidence. We agree with the commenter as the comment applies to the proposed use of “may” in proposed paragraphs (c)(1)(iii) and (2)(v). We propose to change “may” to “will” in redesignated paragraphs (b)(4)(iii) and (iv)(E). We have also decided that the phrase “VA may take action” used in proposed paragraph (b) is more accurately stated as “VA will take appropriate action”, and propose to make this change accordingly. That is because whether VA takes any action that affects entitlement to benefits and what type of action it will take will depend on the content of the submission.Start Printed Page 71083

We also propose to change “affecting the [claimant's or beneficiary's] entitlement to benefits based upon” to “in response to”. This is because a submission might not affect entitlement to benefits. The entire clause now reads, “VA will take appropriate action in response to the statement, evidence, or information.” We have made this change, and the change discussed in the preceding paragraph, in paragraphs (a)(3) and (b)(3), which are parallel provisions applying to claimants and to beneficiaries, respectively.

Based on this comment, we have also decided that it would be more accurate to say that VA will use the statement described in proposed paragraphs (b)(4)(iii) and (iv)(E) “to determine entitlement” as well as “to calculate benefit amounts”. Accordingly, we propose to add the phrase “to determine entitlement” in those paragraphs as redesignated. We also propose to revise this sentence from passive voice to active voice.

Initially proposed § 5.130 used the term “form”. This term is no longer used in part 5. For consistency, we propose to change the term from “form” to “application”, which is currently defined in § 5.1.

Initially proposed § 5.130(a)(1) stated:

It is VA's general policy to allow submission of statements, evidence, or information by email, facsimile (fax) machine, or other electronic means, unless a VA regulation, form, or directive expressly requires a different method of submission (for example, where a VA form directs claimants to submit certain documents by regular mail or hand delivery). This policy does not apply to the submission of a claim, Notice of Disagreement, Substantive Appeal, or any other submissions or filing requirements covered in parts 19 and 20 of this chapter.

In reviewing this paragraph in responding to comments, we determined that the last sentence might be misconstrued to mean that a claimant may not file a claim, a Notice of Disagreement (NOD), a Substantive Appeal, or other item covered in 38 CFR parts 19 or 20 electronically. This was not our intent. Section 5.130 concerns submission of a statement, evidence, or information, and not submission of claims. Filing requirements for an NOD and for a Substantive Appeal are in parts 19 and 20. To avoid this possible misconstruction, we propose to remove this sentence.

§ 5.131 Applications, Claims, and Exchange of Evidence With Social Security Administration—Death Benefits

One commenter noted a typographical error in the preamble language of the initially proposed rule. The error was in the misspelling of the word “belief”. We acknowledge the typographical error but find no need to make the suggested change because the error is not substantive and is contained within the preamble language to the proposed rule which will not be published again.

§ 5.132 Claims, Statements, Evidence, or Information Filed Abroad; Authentication of Documents From Foreign Countries

Initially proposed § 5.132(a) incorrectly grouped together claims, statements, information, and evidence, leading to the absurd implication that, under the terms of the regulation, a claim could be filed in support of a claim. Therefore, we propose to revise § 5.132(a) to separate a “claim” from a “statement, information, and evidence.” Additionally, we reviewed § 3.108, the part 3 provision from which proposed § 5.132(a) is derived, and now propose to reinsert the introductory clause from that section. The introductory clause of § 3.108 explains that certain Department of State representatives in foreign countries are authorized to act as agents for VA. We believe that this information, which was not in initially proposed § 5.132(a), will be valuable to the reader in understanding the agency relationship between the Department of State and VA, and we propose to add it to paragraph (a).

Finally, the regulation text in initially proposed § 5.132 limits evidence of establishing birth, adoption, marriage, annulment, divorce, or death to copies of “public” or “church” records without referencing other religions or religious institutions. We propose to add “other religious-context” records to the regulation text in proposed § 5.132(c)(5) in order to recognize that other religions or religious records, besides church records, may suffice.

§ 5.134 VA Acceptance of Signature by Mark or Thumbprint

One commenter noted that the style of the title of this section as a question was inconsistent with other section titles throughout this part. The commenter suggested an alternative title that “would more closely parallel that of the other proposed sections”, specifically “VA acceptance of signatures by mark or thumbprint”. We agree with the commenter's suggestion and propose to adopt the proposed language as the section title with a slight modification.

The commenter also suggested revising the content of this section. The commenter questioned whether the regulation, as written, would produce unintended results, such as a situation where “an individual who can write his or her name may choose to make a mark or sign by thumbprint”. We recognize the possibility of the hypothetical posed by the commenter, however, it is unlikely that a person who is capable of signing would choose the more burdensome witness/certification process. Even if that occurred, the witness/certification process would be adequate to verify the person's identity and therefore not cause a problem. We decline to make any change based on that comment.

§ 5.135 Statements Certified or Under Oath or Affirmation

One commenter noted that initially proposed § 5.135(b) only applied to evidentiary requirements for claims for service connection, even though we stated in the preamble that we proposed to apply the evidentiary requirements equally to all claims for compensation or pension benefits. We agree with the commenter and therefore propose to remove the restrictive language “for service connection” in § 5.135(b). Any documentary evidence or written assertion of fact filed by the claimant or on his or her behalf, for purpose of establishing a claim, must be certified or under oath or affirmation. However, as the rest of the subsection provides, VA may consider a submission that is not certified or under oath or affirmation if VA considers certification, oath, or affirmation unnecessary to establish the reliability of a document. The language of the subsection has been revised for clarity.

In initially proposed § 5.135(b) we stated, “Documentary evidence includes records, examination reports, and transcripts material to the issue received by VA from State, county, or municipal governments, recognized private institutions, or contract hospitals.” We have determined that the phrase “material to the issue” is inaccurate because this paragraph applies regardless of whether the evidence is material or not. We therefore propose to remove this phrase.

§ 5.136 Abandoned Claims

In the proposed rulemaking, we reserved § 5.136. 72 FR 28770, May 22, 2007. We have now decided to name it “Abandoned Claims”, which is derived from § 3.158(a). We propose to make several changes to the language derived from § 3.158(a) to increase clarity. The scope of the current rule is limited to “an original claim, a claim for increase or to reopen or for purpose of determining continued entitlement”. We propose to expand the scope of § 5.136 to include any claim. This is Start Printed Page 71084consistent with VA's interpretation and use of current § 3.158(a) and makes the rule more concise. The scope of current § 3.158(a) is also limited to “pension, compensation, dependency and indemnity compensation, or monetary allowance under the provisions of 38 U.S.C. chapter 18”. For the same reasons we propose to expand the scope of § 5.136 to include all benefits under part 5. We also propose to change the word “filing” to “receipt” in keeping with our practice of using consistent terminology in part 5.

§ 5.140 Determining Former Prisoner of War Status

One commenter noted a typographical error in proposed § 5.140 (a)(3). We agree with the commenter that there should not be a hyphen between the terms “service” and “department”, and propose to change the language accordingly.

The commenter also pointed out a typographical error in the preamble language concerning this section. The error referred to a mischaracterization of the term “regional office decisions”. We acknowledge the typographical error, but propose not to make the suggested change because the preamble language to the initially proposed rule will not be published again.

In reviewing initially proposed § 5.140, we determined that it would be helpful to readers for all part 5 provisions regarding how VA determines former POW status to be in one section. Therefore, we propose to remove the definition of former POW from § 5.1, “General definitions”, and place it in § 5.140. In combining these two provisions, we have removed redundant material that was contained in initially proposed §§ 5.1 and 5.140.

§ 5.150 General Effective Dates of Awards or Increased Benefits

Several commenters questioned the use of the phrase “date entitlement arose” in place of the phrase “facts found”. In the preamble to the proposed rule, we explained our decision to use “date entitlement arose” by the need for consistency throughout part 5 as well as our understanding that the two terms meant the same thing and are used interchangeably. One commenter did not agree that “facts found” and “date entitlement arose” were interchangeable terms. Rather, the commenter asserted that “facts found” is an alternative to “date entitlement arose” because the latter presumably arises as a matter of law, such as once a claim is actually filed, but is only compensable beginning from a date that is supported by the factual evidence. We believe that the phrase “date entitlement arose” will be clearer to lay persons than the phrase “facts found”, and that § 5.150(a)(2) makes clear that the phrase “date entitlement arose” refers to what the factual evidence shows rather than to procedural requirements such as filing claims. Also, VA regulations have long used “date entitlement arose” without the confusion the commenter described. We note that we do not intend any substantive changes to the determination of the effective dates for benefits based on this substitution of phrases.

The same commenter also felt that it would be unnecessary and possibly confusing to a Veterans Service Representative to pick the latter of either the “date of receipt of the claim” under paragraph (a)(1) or “date entitlement arose” under paragraph (a)(2). The commenter felt that the date of receipt of a claim would presumably always be the later date, since veterans usually experience a disability before filing a claim of entitlement to compensation. The commenter asserted that VA adjudicators sometimes assign “the later effective dates based on the reasoning that increased disability was not factually ascertainable until proven by a VA examination or medical opinion.”

We propose not to make any changes based on this comment because while (a)(2) acknowledges that the date entitlement arose usually precedes the filing of a claim, this may not always be the case. For example, a veteran may file a claim but have it properly denied due to lack of evidence. However, if the veteran later files new evidence that shows that the veteran did not meet all the criteria for a benefit on the date the claim was received, but his or her medical condition changed so that the criteria were satisfied while the appeal was still pending, the date entitlement arose will be after the claim was received. Regarding the assertion that VA adjudicators sometimes assign later effective dates because an increased disability was not factually ascertainable until proven by a VA examination or medical opinion, we note that VA has authority to accept non-VA medical records or lay statements as a basis for setting an effective date.

In responding to these comments, we noted that the first sentence of paragraph (a)(2) could be clarified. In the NPRM, it read, “For the purposes of this part, `date entitlement arose' means the date shown by the evidence to be the date that the claimant first met the requirements for the benefit awarded.” We now propose to simplify this sentence to read, “For purposes of this part, `date entitlement arose' means the date that the claimant first met the requirements for the benefit as shown by the evidence.”

Another commenter suggested keeping the phrase “facts found” because he did not think the phrase was ambiguous or unclear. We have reconsidered the replacement of “facts found” with “date entitlement arose”, however, we decline to keep the phrase “facts found”. As discussed above, the phrase “date entitlement arose” is easier to interpret and apply as it is more instructive as to how VA will make an effective date determination. Furthermore, we do not intend this substitution of the phrases as a substantive change in determining effective dates for benefits.

One commenter suggested that VA should assume that entitlement to benefits arises as of the date of receipt of the claim rather than before the receipt of the claim. In the commenter's view, “this would prevent a conflict with 38 U.S.C. 5110(b)(2)”. We disagree with the commenter and do not see a conflict between the regulation and statute. Indeed, if VA assumed that entitlement to benefits arises as of the date of receipt of the claim, rather than beforehand, that would deprive veterans of potential entitlement to earlier effective dates under § 5110(b)(2). We therefore propose to make no changes based on this comment.

Changes to § 5.150 Not in Response to Comments

We omitted the provisions of current § 3.400(h)(3) from the AM01 NPRM without any explanation in the preamble. For the reasons discussed below, we propose to omit them from part 5.

Section 3.400(h)(3) states, “As to decisions which have become final (by appellate decision or failure to timely initiate and perfect an appeal) and reconsideration is undertaken solely on Department of Veterans Affairs initiative, [the effective date of an award based on such a reconsideration will be] the date of Central Office approval authorizing a favorable decision or the date of the favorable Board of Veterans[`] Appeals decision.” The current structure of § 3.400(h) first appeared in the CFR in 1969. See 38 CFR 3.400(h) (34 FR 8703, June 3, 1969). VA maintained the previous distinction between non-final and final decisions, and also created distinct provisions governing final decisions based on the method used to reconsider or reopen the case. VA Regulations, Compensation and Pension, Transmittal Sheet 437 at I, Start Printed Page 71085132-3R (May 21, 1969). Paragraphs (h)(1) and (2) cover the most common difference of opinion situations and distinguish between non-final and final decisions. See id. Paragraph (h)(3) was added to apply to those admittedly “rare instances in which there has been final adjudication and no application for consideration or reopening has been submitted.” Id.

For claims that the Board reconsiders and grants “on its own initiative”, there is no distinct effective date rule. VA Central Office reconsiders only non-final decisions under its “difference of opinion” authority (see § 5.163), not final decisions. Indeed, it has no statutory or regulatory authority to reconsider final decisions. We are therefore not restating the (h)(3) Central Office provision in part 5.

The initially proposed rule mistakenly omitted the provisions of § 3.400(o)(1) (second sentence). This rule states that “[a] retroactive increase or additional benefit will not be awarded after basic entitlement has been terminated, such as by severance of service connection.” We propose to correct this omission by adding a paragraph (b) and redesignating proposed paragraph (b) as paragraph (c).

As stated in the AM01 NPRM, proposed § 5.150(b), now § 5.150(c), is a table of the location of other effective-date provisions in part 5, which are exceptions to the general effective date rule of proposed paragraph (a). As stated in the proposed rulemaking, the table is for informational purposes. We propose to add the sentence, “This table does not confer any substantive rights”, to clarify that it is a reference tool, and not a substantive rule.

Also, as stated in the preamble to the initially proposed rule, the table showed both already published and as yet unpublished part 5 regulations, which were subject to change. In this NPRM, we have updated the table to reflect the updated part 5 citations. We have also moved the references to effective dates of reductions and discontinuances to a separate table in § 5.705(b). As a result, proposed § 5.150(b), now § 5.150(c), contains only effective date provisions for awards or increased benefits. Having separate tables for each type of effective date will enable readers to more easily locate the section they need.

§ 5.151 Date of Receipt

One commenter proposed adopting a mailbox rule instead of the current date-of-receipt rule for purposes of filing claims. The commenter pointed out that the Board of Veterans' Appeals (the Board) accepts the postmark date as evidence of a document having been timely filed, and suggested that VA should adopt a similar rule for claims. See 38 CFR 20.305 (concerning how the Board will calculate the time limit for filing). We decline to adopt the commenter's suggestion because VA is prohibited by statute from awarding an effective date for a claim earlier than the date of receipt of the application or claim, unless specifically authorized. According to 38 U.S.C. 5110(a), “[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” Having a date-of-receipt rule provides for certainty and consistency in determining when a document relating to a claim is received.

Initially proposed paragraph (b) consisted of one 93-word sentence. We propose to break the paragraph into three sentences, which will make the paragraph easier to read and understand.

§ 5.152 Effective Dates Based on Change of Law or VA Issue

One commenter suggested that we reconsider our decision to restate § 3.114(a) without change. The commenter believed that § 3.114(a) was very difficult to understand and was neither claimant-focused nor user-friendly. In response to this comment, we propose to revise initially proposed § 5.152 to state the provisions in the active voice, replace unnecessarily technical language with more commonly understood language, and reorganize the provisions into a more logical order.

The commenter set forth a detailed fact pattern and then correctly explained how the rule applied to those facts. The commenter then suggested that “any documented handling of a veteran's claims folder following a liberalizing change in law [should] constitute a claim for the newly available benefit” (emphasis in original). The commenter's concern was with VA's regulation authorizing retroactive payment of benefits for a period of 1 year prior to the date of receipt of a claim or the date of a VA-initiated review, if the claimant requests a review or VA initiates a review more than 1 year after the effective date of the law or VA issue. The commenter believed that such payments should be retroactive to the date of the first documented handling of the claims file following the effective date of the law or VA issue.

We decline to make any such change because it would be administratively burdensome and an extremely inefficient method of claims processing. The term “claim” is defined in § 5.1 as “a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit under this part.” In other words, a claimant must identify the benefit sought. It would be unreasonable to require that, for example, the date of receipt of a change-of-address request, which would result in a handling of the claims file unrelated to a claim for compensation, serve as the effective date for retroactive benefits in a compensation claim.

The commenter also suggested that we define the phrase “administrative determination of entitlement”. The commenter did not explain how he believes the phrase is confusing, but the ordinary dictionary meaning of those words is clear. We note that a court has previously held that the meaning of this phrase is clear and consistent with its authorizing statute. McCay v. Brown, 106 F.3d 1577, 1580 (Fed. Cir. 1997). We therefore propose to make no changes based on this comment.

In initially proposed § 5.152(b) we used the term “payment”. We have determined that this term is too narrow because it excludes benefits that have no payment, for example a service-connected disability that was rated noncompensable. We have, therefore, used the term “benefits” instead, which is defined in § 5.1 as “any payment, service, commodity, function, or status, entitlement to which is determined under this part.”

In § 5.152(d)(2), we propose to replace the phrase “the award will be reduced or discontinued effective the last day of the month in which the 60-day period expired” with “VA will pay a reduced rate or discontinue the benefit effective the first day of the month after the end of the notice period”. This change in terminology does not affect the payment made to a beneficiary based on a reduction or discontinuance. The purpose of this change is to remedy any confusion that Veterans Service Representatives or beneficiaries may have experienced in interpreting the former part 3 language, as well as to establish uniform language for describing how to calculate effective dates.Start Printed Page 71086

§ 5.153 Effective Date of Awards Based on Receipt of Evidence Prior to End of Appeal Period or Before a Final Board Decision

One commenter suggested that we define the term “appeal period”. The term “appeal period” does not need a definition. The ordinary dictionary meanings for the words are sufficient to define the term. The commenter also recommended that the term “appeal period” be defined as any time “after a timely [Notice of Disagreement] and timely Substantive Appeal have been received”. We decline to make such a change because the suggested definition is incorrect. A timely Notice of Disagreement (NOD) and Substantive Appeal are the triggers that initiate appellate review by the Board. The “appeal period”, however, begins with the date of mailing of notice to a claimant concerning a decision made by the agency of original jurisdiction. See 38 CFR 20.302 through 20.306. The “appeal period” ends 1 year after the notice date if no NOD is received. Id. We agree, however, that proposed § 5.153 needs a cross-reference to 38 CFR parts 19 and 20 in order to instruct the reader on how to appeal to the Board. This proposed change will eliminate the need to define “appeal period” in part 5, as suggested by the commenter.

We believe that the heading of this section may have caused confusion. Therefore, we propose to revise the heading of § 5.153 to make clear that the regulation refers to both the appeal period and the time period after an appeal has been filed but before a final decision has been rendered.

The commenter also suggested that all evidence received between the date of receipt of a claim and expiration of the appeal period must be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period, and, in claims for increase, evidence received during the 1-year period before the date of receipt of the claim must also be considered. Proposed 5.4(b) states that “VA will base its decisions on a review of the entire record.” Therefore VA must consider the evidence described by the commenter.

One commenter believed that proposed § 5.153 would not prescribe the same effective date for an award based on evidence received during an appeal period as would have applied “had that evidence been submitted and been of record at the time of the decision under appeal”. Proposed § 5.153 prescribed the effective date used in proposed § 5.150 (the general effective date provision for awards or increased benefits) for calculating an effective date based on information or evidence received during the appeal period. The intent in referencing this general effective date provision is to use the same effective date for awarding a benefit as if the final decision being appealed had not been decided. We disagree with the commenter that proposed § 5.153 would lead to a different result than its part 3 predecessors, §§ 3.156(b) and 3.400(q)(1). However, based on the comment, we have reviewed the last sentence of initially proposed § 5.153 and propose to clarify it by replacing it with the language in the last sentence of current § 3.400(q)(1), which states, “The effective date will be as though the former decision had not been rendered.” This change would still lead to the same result as the proposed rule because § 5.150 is still the applicable general effective date provision. We therefore propose to replace the reference to § 5.150 in our regulation text with a cross reference.

This same commenter had several concerns about the preamble discussion of proposed § 5.153 which the commenter believed would cause “misapplication of the law”. The commenter expressed concern with our statement that “if the evidence is submitted within the appeal period or before an appellate decision is rendered, then the effective date of the award can be as early as the date VA received the `open' claim.” 72 FR 28778, May 22, 2007. The commenter noted that “an effective date can be earlier than the date VA first received the open claim.” The commenter is correct to the extent that the commenter's statement is consistent with 38 U.S.C. 5110, and we did not intend any conclusion to the contrary.

Similarly, the commenter questioned VA's explanation regarding the removal of the qualifier “new and material” from proposed § 5.153, which is based on current § 3.156(b). 72 FR 28778, May 22, 2007. Specifically, the commenter disagreed with our statement that “if VA were to treat all evidence submitted after the appeal period has begun as `new and material evidence,' then the effective date could not be earlier than the date VA received that evidence (which could be construed as a claim to reopen).” Id. We note that any ambiguity in this statement is addressed by our other statement in the preamble to the proposed rule that “[t]he current regulation [, § 3.156(b),] can be read to suggest that new and material evidence is needed while the claim is still `open.' However, in such cases there is no claim to `reopen' because the claim has not been `closed' (that is, the claimant could still prevail on that claim).” 72 FR 28778, May 22, 2007. We therefore propose to make no change based on this comment.

Finally, we propose to not include current §§ 3.400(p) and 3.500(u) in part 5. These paragraphs are merely cross-references to effective-date provisions (currently in 38 CFR 3.114) are not necessary in part 5.

§ 5.160 Binding Effect of VA Decisions

One commenter questioned our decision not to repeat the 38 CFR 3.104(b) phrase “made in accordance with existing instructions” in proposed § 5.160(b). The commenter was concerned that our removal of the language would allow VA employees to disregard their procedural manuals and other VA guidance documents. As explained in our preamble discussion of the proposed rule, our reason for not including the language in our rewrite was because the “references to internal procedural manuals and other VA-generated documents that lack the force and effect of law are not appropriate for inclusion in the regulations”. 72 FR 28770, May 22, 2007. The problem we addressed by removing the phrase “made in accordance with existing VA instructions” is that substantive rules in procedural manuals and other VA documents that were not promulgated in accordance with the Administrative Procedure Act (APA) are not enforceable against claimants or beneficiaries. Where VA issuances confer a right, privilege, or benefit, or impose a duty or obligation on VA beneficiaries or other members of the public, VA continues to be bound by notice and comment requirements under the APA. See Fugere v. Derwinski, 1 Vet. App. 103 (1990). Therefore, we propose not to make any changes based on this comment.

§ 5.161 Review of Benefit Claims Decisions

We received several comments regarding this proposed regulation. One commenter suggested that “whether a hearing is ordered or not, [§ 5.161] should be amended to require the Service Center Manager or Decision Review Officer who conducts post-decision review to be subject to the same duty-to-inform obligation as VA hearing officers are now required under 38 CFR [3.103(c)(2)]”. The commenter mistakenly cited to 38 CFR 3.301(c)(2), but the duties of VA employees who conduct hearings are set forth in § 3.103(c)(2).Start Printed Page 71087

We agree with the commenter that VA should assist a claimant or beneficiary in developing his or her claim whenever possible and that the duty-to-inform is not limited to situations where a claimant requests a hearing. In practice, VA reviewers already suggest additional sources of evidence during informal conferences. Therefore, we propose to add a sentence to § 5.161(c) stating that, “In an informal conference, the reviewer will explain fully the issues and suggest the submission of evidence the claimant may have overlooked that would tend to prove the claim.”

One commenter questioned the accuracy of the statement, “The review will be conducted by a Veterans Service Center Manager or Decision Review Officer, at VA's discretion.” The commenter believed this statement was incorrect and referred to a VA application which the commenter believed provided “a right of election in these matters”. We decline to make a change based on this comment. Proposed § 5.161 pertains to a review before the agency of original jurisdiction, which is usually conducted by a Decision Review Officer (DRO). However, where a DRO is unavailable, VA reserves the right to have a Veterans Service Center Manager (VSCM) conduct the review. Proposed § 5.161 is based on § 3.2600, which contains this language as well.

One commenter questioned whether paragraphs (a) and (e) contain contradictory provisions. According to the commenter, “If the reviewer may only review a decision that has not yet become final, . . . how [can] this same reviewer . . . [also] reverse or revise (even if disadvantageous to the claimant) prior decisions of an agency of original jurisdiction (including the decision being reviewed or any prior decision that has become final) . . . on the grounds of [clear and unmistakable error]” (internal quotations omitted). We disagree that paragraphs (a) and (e) are contradictory. While it is true that the scope of review under proposed § 5.161(a) is limited to the decision with which the claimant has expressed disagreement in the NOD, prior decisions are always subject to reversal or revision for clear and unmistakable error (CUE). As proposed § 5.162(d) explains, CUE is a very specific and rare kind of error reserved for situations where reasonable minds cannot differ about the nature of the error. Specifically, while a reviewer may not be looking for such CUE during the review, if the reviewer encounters one, paragraph (e), as well as § 5.162, allow for reversal or revision of the decision containing that error. We therefore propose to make no changes based on this comment.

In initially proposed § 5.161(b), we stated that VA will, “notify the claimant in writing of his or her right to review under this section.” Because we have defined “notice” in § 5.1 as “a written communication VA sends a claimant or beneficiary at his or her latest address of record, and to his or her designated representative and fiduciary, if any”, we propose to revise paragraph (b) to state that VA will “send notice to the claimant . . .”, to be consistent with our definition.

§ 5.162 Revision of Agency of Original Jurisdiction Decisions Based on Clear and Unmistakable Error

In reviewing comments received regarding initially proposed § 5.162, we determined that this section should be revised and reorganized to improve readability. We propose to add new paragraphs (a) “Scope”; (b) “Review for clear and unmistakable error (CUE)”; (c) “Binding decisions and final decisions”; and (d) “What constitutes CUE”; and redesignate initially proposed paragraph (b) as paragraph (e).

We also determined that § 5.162 mistakenly omitted the provision in 38 CFR 3.400(k), which states, “Error (§ 3.105). Date from which benefits would have been payable if the corrected decision had been made on the date of the reversed decision.” We have added this provision to § 5.162(f), restated for better clarity: “In such cases, benefits are payable effective on the date from which benefits would have been payable if the corrected decision had been made on the date of the reversed decision.”

We received several comments based on this proposed regulation. One commenter suggested that we define the terms “reversed” and “revised”. We decline to adopt this suggestion because we prefer to rely on the common dictionary meanings of these terms and do not wish to deviate from these commonly understood meanings.

The same commenter noted that the cross reference to 38 CFR 20.1403 in proposed paragraph (a) is inadequate for purposes of adjudicating compensation and pension claims. The commenter suggested that VA should create a new subpart in part 5 that “will expressly set out for claimants and their representatives what it takes to file, raise, and prevail in a [claim] of clear and unmistakable error”. We agree with the commenter that it will be helpful to include the relevant portions of § 20.1403 in part 5. Newly proposed paragraph (d) includes language from the first paragraph of § 20.1403 by explaining what CUE is. We decline, however, to make the proposed change in a new subpart because such a change is beyond the scope of this project. We are also removing the cross reference so readers will not infer that § 20.1403 applies to CUE claims at the AOJ.

One commenter urged that VA include in § 5.162, “[t]he filing and pleading requirements that are necessary in presenting successful CUE claims . . .”, but offered no rationale for the suggestion. The same commenter urged that VA include provisions stating the “relationship of clear and unmistakable error claims to other statutes, regulations and legal doctrines”, but offered no rationale for the suggestion.

VA has established procedures for filing claims (§§ 5.50 through 5.57). Claims for CUE require the same procedures. Proposed paragraph (d) clearly informs claimants what they must show in order to prove CUE. Regarding the suggestion about the relationship of CUE to other statutes, regulations and legal doctrines, this type of analysis is not germane to the regulation because it would not inform the public about VA's duties or claimants' rights or duties. We therefore propose to make no changes based on these two comments.

In the NPRM preamble discussion of § 5.162, we stated that the intent of the section is to convey that VA adjudicative agency decisions that are final will be presumed correct unless there is a showing of CUE. We also stated:

The requirement of a showing of CUE applies only to a “final decision,” as defined by proposed § 5.2 to mean “a decision on a claim for VA benefits with respect to which VA provided the claimant with written notice” and the claimant either did not file a timely Notice of Disagreement or Substantive Appeal or the Board has issued a final decision on the claim. See 71 FR 16464, 16473-74 (March 31, 2006). We also proposed to incorporate 38 U.S.C. 5109A(c) and (d), which state that a CUE claim may be instituted by VA or upon request of the claimant and that a CUE claim may be made at any time after a final decision is made.

One commenter interpreted proposed § 5.162 as meaning that only final decisions can be reviewed for CUE. The commenter noted that the term “final” is not contained in the CUE statute, 38 U.S.C. 5109A, which states, “A request for revision of a decision of the Secretary based on clear and unmistakable error may be made at any time after that decision is made.”

The commenter asked why, if a claimant has filed a notice of disagreement and has not elected review Start Printed Page 71088under proposed § 5.161, VA should be unable to correct the decision if it is found to be clearly and unmistakably erroneous. The commenter further asked why, if VA discovered a CUE after a “binding” decision but before it became final under § 3.160(d), the decision should not be subject to immediate correction.

The commenter asserted, “The law does not limit a claim of CUE to a final VA decision, but rather more accurately contemplates a `binding' decision as defined in proposed § 5.160(a),” which is based on 38 CFR 3.104(a). The commenter further asserted that “[t]his would also be consistent with proposed § 5.161(e) [based on § 3.2600(e)], which permits decision review officers to review a binding, but non-final, decision that has been timely appealed and revise that decision on the basis of CUE.” The commenter urged VA to change initially proposed § 5.162 to state that CUE can be the basis to correct a “binding” decision even if the decision has not yet become “final”. We agree with the commenter and propose to revise proposed § 5.162 as discussed below.

The courts have consistently stated that a “final [AOJ] decision” is a prerequisite for a CUE collateral attack. Hines v. Principi, 18 Vet. App. 227, 236 (2004). Courts have repeatedly found that because an AOJ decision was final it was susceptible to reversal or revision based on CUE. See Knowles v. Shinseki, 571 F.3d 1167, 1168 (Fed. Cir. 2009) (where RO decision was presumptively final because veteran acknowledged notice and did not timely appeal, veteran properly raised claim of CUE); Hines, 18 Vet. App. at 235-36 (Court assumes RO decision became final where veteran filed NOD but not substantive appeal, and “[s]uch a final decision is a prerequisite for a CUE collateral attack”).

Concomitantly, courts have repeatedly found claims of CUE in AOJ decisions improper when that decision was not final, and that CUE may not be used to correct non-final decisions. In Norris v. West, 12 Vet. App. 413, 422 (1999), the court held, “as a matter of law that a [total disability rating based on individual unemployability] claim was reasonably raised to the RO and was not adjudicated. Thus, there is no final RO decision on this claim that can be subject to a CUE attack.” See Best v. Brown, 10 Vet. App. 322, 325 (1997) (RO decision not final where RO failed to notify veteran, therefore veteran cannot raise CUE with respect to that rating decision).

The courts have not, however, ruled on whether, in order to be subject to correction based on CUE, a decision must be “final” as that term is used in § 3.160(d) (which is based on 38 U.S.C. 7105(c)). Section 3.160(d) states that a “finally adjudicated claim” is a decision on a claim, “the action having become final by the expiration of 1 year after the date of notice of an award or disallowance. . . .” We are unaware of any judicial precedent holding that, for purposes of CUE review, a decision becomes final only after the time to appeal has passed.

When VA amended 38 CFR 3.105(a) to add the term “final and binding”, it intended the term to have the same meaning in that section as it has in § 3.104(a). Specifically, VA meant that decisions that are binding on all VA field offices at the time VA issues written notification in accordance with 38 U.S.C. 5104 are subject to revision for CUE. It did not mean “final” under 38 CFR 3.160(d) (that the decision was not timely appealed or was affirmed by the Board.

A review of the regulatory history of § 3.105(a) shows that VA added the “determinations which are final and binding” language in a 1991 rulemaking. 56 FR 65845, Dec. 19, 1991. Prior to that rulemaking, 38 CFR 3.104(a) used the “final and binding” language, but § 3.105(a) used the language “determinations on which an action was predicated. . . .” In the preamble to the proposed rule, VA stated, “The proposed amendment is intended to clarify that decisions do not become final until there has been written notification of the decisions to the claimants. . . .” 55 FR 28234, July 10, 1990. Similarly, in the preamble to the final rule, VA stated that the purpose of the amendment was, “to establish by regulation the point at which a decision becomes final and binding on all VA field offices.” It went on to state, “That point is reached when VA issues written notification on any issues for which it is required that VA provide notice to the claimant. . . .” 56 FR 65845, Dec. 19, 1991.

In Smith v. Brown, 35 F.3d 1516 (Fed. Cir. 1994), the issue before the court was whether an AOJ could reverse or revise a Board decision for CUE. In that context, the court analyzed the term “final and binding” as used in both in §§ 3.104(a) and 3.105(a) and found that the terms were intended to mean the same thing. Id. at 1523-25.

Congress codified 38 CFR 3.105(a) as 38 U.S.C. 5109A when it enacted Public Law 105-111, sec. 1(a)(1), 111 Stat. 2271 (1997). Disabled American Veterans v. Gober, 234 F.3d 682, 686 (Fed. Cir. 2000). As the court noted in Donovan v. West, 158 F.3d 1377, 1383 (Fed. Cir. 1998), “Although more detailed than [§ 3.105(a)], the basic substantive provision in [section 5109A] is the same as that in the regulation.” As the commenter noted, Congress did not include any finality requirement in that statutory language.

It has been long-standing VA practice to correct CUE in decisions that are “final and binding” under 38 CFR 3.105(a), even though they have not “become final by the expiration of 1 year after the date of notice [of a decision], or by denial on appellate review, whichever is the earlier.” 38 CFR 3.160(d). We codified this practice in 38 CFR 3.2600(e), which states the “reviewer may reverse or revise (even if disadvantageous to the claimant) prior decisions of an agency of original jurisdiction (including the decision being reviewed or any prior decision that has become final due to failure to timely appeal) on the grounds of clear and unmistakable error (see § 3.105(a)).” The “decision being reviewed” under § 3.2600(e) is one that has not “become final due to failure to timely appeal”.

Finality under proposed § 5.1 is not a prerequisite for correction of a decision based on CUE, and we therefore propose to write new paragraph (b) to clearly state that final or non-final decisions may be corrected under the CUE doctrine. We propose to clarify this point in § 5.162(b) by stating that, “At any time after the AOJ makes a decision, the claimant may request, or VA may initiate, AOJ review of the decision to determine if there was CUE in the decision.”

Current § 3.105(a) states, “[W]here an award is reduced or discontinued because of administrative error or error in judgment, the provisions of § 3.500(b)(2) will apply.” While this provision tells the reader what effective date provision applies in such cases, it is unclear that the standard governing the decision is clear and unmistakable error. The intended meaning of this sentence is seen in the regulatory history. When VA implemented the effective date rule for 38 U.S.C. 5112(b)(10), it explained that, “Payments will be terminated under this subparagraph on the basis of clear and unmistakable error. (See VA Regulation 1105(A).)” VA Regulations, Compensation and Pension, Transmittal Sheet 271 at iv (Dec. 1, 1962). Although the quoted language referred only to “terminated” benefits, it cited VA Regulation 1105(A), which at that time included both reductions and discontinuances of VA benefits. VA Regulations, Compensation and Pension, Transmittal Sheet 267 at 37-2R (Dec. 1, 1962). In order to clarify this Start Printed Page 71089point in part 5, we propose to state explicitly in § 5.162(e) that when VA reduces or discontinues a benefit resulting from a VA administrative error or error in judgment, it applies the clear and unmistakable error standard.

In the AM01 NPRM, we initially proposed to add a new definitions section that would define “administrative error” and “error in judgment,” in § 5.165(c)(2). We have determined that, because proposed § 5.165 (now renumbered as § 5.166) is an effective date regulation and this provision is substantive, it is more logical to place it in new § 5.162(e).

Initially proposed § 5.165(c)(2) included a list of examples of administrative errors or errors in judgment. That list included, “(iii) Failure to follow or properly apply VA instructions, regulation, or statutes.” We have determined that the term “instructions” is unnecessary. Historically, VA used the term “instruction” to describe the Administrator's binding guidelines for implementing newly enacted laws. VA has not issued such “instructions of the Administrator” since the 1960s. Because VA has not issued such instructions since the 1960s, it is not useful to include references to them in a list of examples of common sources of administrative error or error in judgment.

Finally, in paragraph (f), “Effect of reversal or revision on benefits”, we propose to add a cross reference to § 5.167(c), the effective date rule for reduction or discontinuance of benefits based on VA administrative error or error in judgment. This will alert the reader that the effective date of such reductions or discontinuances differs from the general rule that the revision of a decision containing CUE is effective as if the original decision were correctly made.

§ 5.163 Revision of Decisions Based on Difference of Opinion

Initially proposed § 5.163 was one 89-word sentence. To improve readability we propose to divide it into three sentences. We also propose to specify that the revised decision must be more favorable to the claimant.

§ 5.164 Standard of Proof for Reducing or Discontinuing a Benefit Payment or for Severing Service Connection Based on a Beneficiary's Act of Commission or Omission

We have revised the proposed section heading of § 5.164 to apply to the several types of adverse actions VA can take upon determining a beneficiary obtained a benefit by an act of commission or omission. We have revised the headings of §§ 5.167 and 5.177 similarly.

In initially proposed § 5.162(b), we stated, “[F]or reductions or discontinuances based on CUE resulting from an act of commission or omission by the beneficiary or with the beneficiary's knowledge, VA will apply § 5.165(b).” In doing so, we mistakenly overlooked that the first sentence of 38 CFR 3.105 states, “The provisions of this section apply except where an award was based on an act of commission or omission by the payee, or with his or her knowledge. . . .” Since § 3.105 includes the provisions on CUE, CUE is not the proper standard for a reduction or discontinuance of a benefit, or for severance of service connection, obtained through an act of commission or omission.

We have revised the proposed regulation to include severance of service connection among the adverse actions VA will take upon finding an act of commission or omission by a preponderance of the evidence, rather than by clear and unmistakable evidence. This would be consistent with the holding in Roberts v. Shinseki, 23 Vet. App. 416 (2010), where the court concluded “that the provisions of § 3.105 [(d)] do not apply to cases involving severance of service connection based on fraud.” Id., at 428.

Neither the statutes nor the regulations provide a standard for reduction or discontinuance of a benefit obtained through an act of commission or omission. In such cases, VA applies its default standard of proof, which is preponderance of the evidence. When VA implemented 38 U.S.C. 5112(b)(9) in VA Regulation 1500(b)(1) (currently 38 CFR 3.500(b)(1)), it explained that in determining whether benefits were based on an act of commission or omission “[t]he benefit of any doubt will be resolved in favor of the payee.” VA Regulations, Compensation and Pension, Transmittal Sheet 271 at iii (Dec. 1, 1962). Thus, when the evidence is in equipoise, VA cannot reduce or discontinue benefits. But when the evidence against the beneficiary outweighs the evidence supporting the beneficiary, the benefit of the doubt doctrine does not apply (Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1991)), and VA will reduce or discontinue.

Proposed § 5.3(b)(4) states that, “A fact or issue is established by a `preponderance of evidence' when the weight of the evidence in support of that fact or issue is greater than the weight of the evidence against it.” The preponderance standard is relatively easy for VA adjudicators to apply. It is also a high enough standard to protect beneficiaries from arbitrary or capricious reductions or discontinuances by VA. We also note that before reducing or discontinuing benefits under § 5.164, VA must provide due process to the beneficiary under § 5.83(a).

It will be helpful to inform the public that VA applies the preponderance standard in a reduction or discontinuance of a benefit obtained through an act of commission or omission. We therefore propose to add a new § 5.164, which states, “VA will reduce or discontinue a benefit, or sever service connection, if a preponderance of the evidence shows that it resulted in whole or in part, from an award based on an act of commission or omission by the beneficiary or an act of commission or omission done with the beneficiary's knowledge.”

Although section 5112(b)(9) does not specify, VA has long interpreted it to mean that it applies when an award was based in whole or in part on the act of commission or omission. VA General Counsel's opinion VAOPGCPREC 2-90, 55 FR 27756 (July 7, 1990). We propose to include the phrase “in whole or in part” in paragraph (a) to make this point.

As stated in § 5.162(b), in a CUE claim, VA's review will be based “only on the evidence of record and the law in effect when the AOJ made the decision.” However, no such restriction applies when VA reduces or discontinues a benefit, or severs service connection, for reasons other than CUE. To ensure that readers are aware of this, we propose to insert the following sentence into § 5.164(a), “The review will be based on the law in effect when the agency of original jurisdiction (AOJ) made the decision and on all evidence currently of record, regardless of whether it was of record at that time.”

In proposed § 5.164(b), we provide readers with examples of an act of commission or omission by the beneficiary or an act of commission or omission done with the beneficiary's knowledge. We selected all but the fourth of these examples because they are some of the most common situations in which VA reduces or discontinues benefits. We included the fourth example, service connection obtained by fraud, because severance of service connection greatly affects a veteran's benefits. Paragraph (b) is not an exclusive list of acts of commission or omission.Start Printed Page 71090

§ 5.167 Effective Dates for Reducing or Discontinuing a Benefit Payment, or for Severing Service Connection, Based on Omission or Commission, or Based on Administrative Error or Error in Judgment

In initially proposed § 5.165 (now renumbered § 5.167) we inadvertently omitted severance of service connection in the list of actions for which initially proposed § 5.165 provided effective dates. The regulation was incomplete without it, because VA will sever service connection if a claimant obtained it by an act of commission or omission, or if VA granted service connection because of its administrative error or error in judgment. We therefore propose to add this severance provision.

We propose to add a new § 5.164 and renumber initially proposed § 5.166 as § 5.165, and therefore we have renumbered initially proposed § 5.164 as § 5.166 and initially proposed § 5.165 as § 5.167. One commenter suggested that initially proposed § 5.165(c) effectively would permit VA to “take adverse action against claimants on much lower showings of VA error than the law governing CUE permits”. We disagree with this comment. This paragraph merely implements the statutory provision in 38 U.S.C. 5112(b)(10). It does not address the standard applicable to VA decisions to reduce or discontinue benefits.

The commenter apparently believed that CUE and VA administrative error are similar in that both can result in a decision to reduce or discontinue an award, with VA administrative error having to meet a lower standard than CUE. That is not correct. Proposed § 5.165 is an effective date provision which sets different dates for reduction or discontinuance of benefits depending on whether the beneficiary or VA made an error. When CUE or severance of service connection and is based on a beneficiary's act of commission or omission, VA corrects the award retroactively. When CUE results in a reduction or discontinuance of an award or severance of service connection and is based solely on VA error, VA corrects the award prospectively. VA is not lowering the standard for finding error that result in the reduction or discontinuance of benefits and these part 5 rules would not cause such an effect. We therefore propose to make no changes based on this comment.

Lastly, initially proposed § 5.165(c)(2) provided a list of administrative errors or errors in judgment. VA does not intend this list to be exclusive, so we propose to add the phrase “but are not limited to” to this provision, which is now included in § 5.162(e), in order to avoid that mistaken impression.

§ 5.170 Calculation of 5-year, 10-year, and 20-year Periods to Qualify for Protection.

In the preamble to initially proposed § 5.170, we failed to state that paragraph (a) is a new scope provision informing the reader of the rules gathered in § 5.170 (§§ 3.344, 3.951, and 3.957).

One commenter suggested that proposed § 5.170(a) was unclear because a rating has to be “in effect” for 10 years before service connection is protected, but a rating has to be “continuous” for 5 years for a disability to be considered stabilized and “continuous” for 20 years for the disability level to be protected. The commenter suggested that we use either “in effect” or “continuous”, or explain why we use different terms.

For the following reasons, we decline to make a change based on this comment. We use different terms because different rights are being protected. As noted in the preamble to the initially proposed rule, a precedent opinion, VA General Counsel's opinion VAOPGCPREC 5-95, 60 FR 19808 (Apr. 20, 1995), held that a disability could be considered “continuously rated” at or above a specified level for purposes of 38 U.S.C. 110 only if there was no interruption or discontinuance of the compensation being paid based on that rating for a period of 20 years or more. The statute provides this protection because veterans become dependent on a certain level of compensation when it has been paid without interruption for such a long period of time.

Similarly, when a disability has been continuously rated at the same level for 5 years or more, VA considers it to be stabilized. This provides some measure of protection in that the veteran is less likely to experience a reduction in compensation in the future or be subjected to repetitive examinations that yield the same result time after time. In both cases, when the term “continuous” is used, the protection provided concerns the level of compensation.

On the other hand, the term “in effect” is used only in connection with the 10-year protection afforded by 38 U.S.C. 1159 for service-connected status. There is no discussion of interrupted compensation payments breaking the continuity of a rating. Once service connection has been granted for a disability, that status is unaffected by variations in the level of compensation. If that status remains “in effect” for 10 years, service connection cannot be severed in the absence of fraud or military records showing the person did not have the requisite service or character of discharge. Since disability level and service-connected status are different concepts, it is appropriate to use different terms when discussing their protection criteria.

Initially proposed § 5.170(b) stated, “A protection period begins on the effective date of the rating decision and ends on the date that service connection would be severed or the rating would be reduced, after due process has been provided.” We believe the term “protection period” could be misinterpreted to mean that a rating is protected during this period. It is merely a qualifying period that triggers the protections in §§ 5.171, 5.172, and 5.175. We have revised this paragraph to clarify that point and reorganized the language to improve readability.

The same commenter suggested that the language in initially proposed § 5.170(c) was unclear because it did not explain whether the continuity of a rating resumes after a veteran is discharged from active military service. Currently, proposed § 5.170(c) provides that “a rating is not continuous if benefits based on that rating are discontinued or interrupted because the veteran reentered active service.” As noted above, in the preamble discussion for the proposed rule, we cited to VAOGCPREC 5-95, which held:

Where compensation is discontinued following reentry into active service in accordance with the statutory prohibition on payment of compensation for a period in which an individual receives active-service pay, the continuity of the rating is interrupted for purposes of the rating-protection provisions of 38 U.S.C. 110 and the disability cannot be considered to have been continuously rated during the period in which compensation is discontinued.

Moreover, VA generally does not have the ability to examine veterans once they have returned to active duty, nor does it have a reason to do so, so VA generally cannot determine whether their condition has improved during that time. Such veterans can still satisfy the protection criteria of 38 U.S.C. 110, but the qualifying period for protection must begin anew upon resumption of compensation. We therefore propose not to adopt the change suggested by the commenter.

Another commenter questioned whether receipt of active duty for training (ACDUTRA) pay breaks the continuity of payment for purposes of protection. The former part 3 cross reference (§ 3.654) that followed § 5.170(c), which has since been updated with its part 5 counterpart § 5.746, clarifies that “active military service pay means pay received for active duty, active duty for training or Start Printed Page 71091inactive duty training”. Therefore, receipt of ACDUTRA pay is considered to be receipt of active military service pay, which operates to break continuity of payment for purposes of breaking continuity of a rating. We therefore propose not to make any changes to § 5.170 based on this comment.

§ 5.171 Protection of 5-Year Stabilized Ratings

One commenter observed that the NPRM misquoted sentence 5 of § 3.344(a) as follows: “. . . sentence 5, which states, `lists those diseases that will not be reduced . . . ' ” (emphasis in comment) 72 FR 28782, May 22, 2007. The commenter is correct, the quoted language actually paraphrased sentence 5 of § 3.344(a). We rewrote sentence 5 of § 3.344(a) as proposed paragraph (d)(2), reorganized for clarity. The comment, though accurate, does not require any change from the proposed regulation.

This commenter asserted that § 3.344 is a very difficult regulation full of outdated, superfluous verbiage, much of which we could discard. The commenter however, gave one example, specifically the eighth sentence of § 3.344(a) (initially proposed as § 5.171(d)(6)), which the commenter asserted was meaningless. That sentence stated, “When syphilis of the central nervous system or alcoholic deterioration is diagnosed following a long prior history of psychosis, psychoneurosis, epilepsy, or the like, it is rarely possible to exclude persistence, in masked form, of the preceding innocently acquired manifestations.”

We disagree that this provision is meaningless, but we conclude it is not useful because it does not provide any instruction, impose any duty, or convey any right. The sentence essentially informs VA employees who perform disability ratings that syphilis and alcoholic deterioration diagnosed after a long prior history of “psychosis, psychoneurosis, epilepsy, or the like,” can mask the persistent prior disease, and therefore the focus of the rating decision should be the “preceding innocently acquired manifestations.” Initially proposed paragraph (d)(6) does not actually instruct VA to take any specific action. It does not impose any specific duty different than does paragraph (d)(2) for diseases subject to episodic improvement, and it does not convey any rights in addition to those stated in paragraph (d)(2). Consequently, we agree that it is confusing surplus and propose not to repeat the eighth sentence of § 3.344(a) in part 5.

One commenter asked us to clarify that improvement in a veteran's disability condition must be demonstrated before VA can reduce a stabilized disability rating. The commenter suggested that before VA can reduce a disability rating, not only must it be determined that an improvement to a disability has actually occurred, but also that the improvement reflects an improvement in the veteran's ability to function under ordinary conditions of life.

In response to this comment, we note that initially proposed § 5.171(c) stated, in pertinent part, that VA will not reduce a stabilized rating unless there is evidence of material improvement and VA may reduce a stabilized rating when an examination shows sustainable material improvement, physical or mental, in the disability, and the evidence shows that it is reasonably certain that the material improvement will be maintained under the ordinary conditions of life.

As a practical matter, it is doubtful that there would be a case in which the evidence shows that it is reasonably certain that the material improvement will be maintained under the ordinary conditions of life unless there had already been material improvement under the ordinary conditions of life. Therefore, we propose to add “under the ordinary conditions of life” to proposed paragraph (c)(1), to read, “An examination shows material improvement in the disability, under the ordinary conditions of life . . .”

In addition, we propose to remove the word “sustainable” because it refers to the veteran's future condition, which is covered by paragraph (c)(2). We propose to change the word “when” to “if” in the second sentence of paragraph (c) because “when” incorrectly implies that the veteran's condition will eventually improve. Lastly, we propose to remove the phrase, “physical or mental”. It is unnecessary because all disabilities are either physical or mental.

One commenter suggested that paragraph (d) is vague and ambiguous because it does not explain when medical examinations for purposes of determining material improvement would be administered. The commenter also thought that the paragraph failed to explain whether “VA will follow any standards or rules when it chooses certain veterans for a new examination, or if VA will use subjective criteria in its selection”.

Initially proposed § 5.171 does not include the standards VA applies when determining whether and when to reexamine a veteran because these standards are described in detail in proposed § 5.102, “Reexamination requirements”. Based on this comment, we propose to add a cross reference to § 5.102 at the end of § 5.171.

One commenter questioned whether proposed paragraph (d) would create tension with the standard governing reduction of total disability ratings under § 3.343. Section 3.343 pertains to the rule governing continuance of total disability ratings and outlines a list of mandatory considerations that VA must take into account before reducing such total disability ratings. The commenter expressed concern over whether adoption of § 5.171(d) would in effect “allow adjudicators to bypass the established protections of § 3.343 in favor of reducing a total evaluation by . . . more lenient conditions”. Proposed § 5.171(d) would not have such an effect. It is a rewrite of § 3.344(a), which simply provides guidance on factors that VA will consider before reducing disability ratings that have either become stable or otherwise were made on account of diseases that are subject to temporary or episodic improvement. The part 5 counterpart to § 3.343 is § 5.286, which will govern the continuance of total disability ratings. We therefore propose to make no changes based on this comment.

One commenter suggested that the organization of paragraph (d)(1) could be improved by separating the topic of “how VA will determine whether there has been material improvement” from “what types of evidence a complete medical record consists of”. The commenter recommended reorganizing the last sentence of paragraph (d)(1) and its paragraphs into a new paragraph (d)(5) after our discussion concerning what constitutes material improvement. We agree with this suggestion and propose to add a new paragraph (d)(5) consisting of the last sentence of paragraph (d)(1) and its paragraphs. We propose to redesignate initially proposed paragraph (d)(5) as (d)(6).

One commenter suggested that we replace the term “medical record” with “evidentiary record” in regard to initially proposed paragraph (d)(4), which pertains to when VA will determine material improvement exists for purposes of decreasing disability ratings. The commenter was concerned that the term “medical record” may unduly restrict VA's current practice of considering all evidence in the record, including lay evidence. We agree with the commenter and propose to adopt the suggested change.

In reviewing initially proposed § 5.171(e) based on this comment, we noted that in the preamble of the proposed rulemaking, 72 FR 28770, May Start Printed Page 7109222, 2007, we failed to explain that we had omitted from paragraph (e) the following, contained in current § 3.344(b): “the rating agency will determine on the basis of the facts in each individual case whether 18, 24, or 30 months will be allowed to elapse before the reexamination will be made.” We omitted this language because VA schedules reexaminations for various future dates (based on the factors described in § 5.102) and these dates are not limited to 18, 24, or 30 months in the future.

We also determined that the scope of paragraph (e) (which is based on current § 3.344(b)) needed clarification. We therefore propose to revise paragraph (e) to clarify that it only applies to cases involving a change in diagnosis.

§ 5.173 Protection Against Reduction of Disability Rating When VA Revises the Schedule for Rating Disabilities

Initially proposed § 5.173(b) described how VA modifies a rating that was assigned under the 1925 Schedule for Rating Disabilities. There are no longer any veterans being compensated under the 1925 Schedule. We therefore propose to remove the last phrase in paragraph (a) and all of paragraph (b) because these concerned revisions to ratings under the 1925 Schedule.

§ 5.175 Severance of Service Connection

Initially proposed § 5.175(a)(1) and (2) provided that the protection from severance of 10 year old service connection applies to grants of disability compensation and to dependency and indemnity compensation (DIC), respectively. As initially proposed, § 5.175 did not address whether this protection applies to benefits under 38 U.S.C. 1151.

In August 2010, the U.S. Court of Appeals for Veterans Claims in Hornick v. Shinseki, 24 Vet. App. 50, 56 (2010), held that the preclusion in 38 U.S.C. 1159 against severing service connection in effect for 10 years or more pertains to disability compensation payments awarded under 38 U.S.C. 1151 (Benefits for persons disabled by treatment or vocational rehabilitation). We propose to add the following at the end of initially proposed paragraph (a)(2): “and to disability compensation or DIC granted under 38 U.S.C. 1151” to afford this protection to these benefits. Adding “disability compensation . . . under 38 U.S.C. 1151” implements the holding in Hornick. We are also adding “or DIC granted under 38 U.S.C. 1151”, to be consistent with sections 1151 and 1159, which both apply to DIC. This addition is also consistent with Hornick.

One commenter suggested that we separate this section into two regulations, one to address the protection of service connection and the other to address the severance of service connection. We decline to make this change because the paragraphs are appropriately titled regarding when protection of service connection applies versus when severance of service connection applies. Further, when taken as a whole, the entire section addresses the single issue of whether and when VA may sever service connection.

The commenter further asserted that VA should not adopt the proposed regulation § 5.175(b)(2) because “the law of clear and unmistakable error bars a veteran from submitting, and the VA from considering, any new medical opinion evidence (or any new evidence for that matter), in order to establish the existence of CUE”. The commenter also stated that because the law that governs CUE “does not permit the veteran to successfully argue that a change in diagnosis can be accepted as a basis for the award of service connection `based on clear and unmistakable error . . .', VA cannot be permitted to sever an award of service connection based on the same sort of medical evidence.” The commenter asserted that this proposed provision “reflects inconsistent and arbitrary agency action”. The commenter asserted that the courts have clearly held that “when an allegation is made that a VA decision contains CUE, that VA's decision on the allegation is strictly limited to the evidence that was before the VA adjudicator at the time VA made the decision being challenged as containing CUE.” The commenter cited Russell v. Principi, 3 Vet. App. 310 (1992), for the proposition that new medical evidence that corrects an earlier diagnosis that was a basis for an earlier decision by the agency of original jurisdiction cannot be considered in a CUE case.

The commenter also noted that the Board of Veterans' Appeals (Board) regulation contained in 38 CFR 20.1403(d) states, “(d) Examples of situations that are not clear and unmistakable error—(1) Changed diagnosis. A new medical diagnosis that `corrects' an earlier diagnosis considered in a Board decision.”

For the following reasons, we propose to make no change based on this comment. The commenter fails to recognize the distinction between § 3.105(a) and § 3.105(d). As used in § 3.105(d) and proposed § 5.175(b), the phrase “clearly and unmistakably erroneous” is intended to describe the high standard of proof that must be met before VA can sever service connection. The phrase “clearly and unmistakably erroneous” is not intended to incorporate the procedural rule applicable to claims under § 3.105(a) that collateral review of a prior final decision must be based solely on the evidence that was before VA at the time of that decision. The provisions of § 3.105(a) and § 3.105(d) involve different procedural standards because § 3.105(a) concerns collateral review and retroactive correction of a final decision. In contrast, § 3.105(d) involves only review of the veteran's entitlement to benefits prospectively. VA recognizes that the use of the same high standard, clear and unmistakable error, might be confusing to some laypersons. For that reason, VA has consistently made clear in its regulations that severance determinations under § 3.105(d) may be based on consideration of evidence obtained subsequent to a prior determination.

Furthermore, we note that the provision in proposed § 5.175(b)(2) is not new; it is based on a substantially similar provision in current 38 CFR 3.105(d). The courts have held that, as a general principle, when an allegation is made that a VA decision contains CUE, VA's decision on the allegation is strictly limited to the evidence that was before the VA at the time VA made the decision being challenged as containing CUE. The U.S. Court of Appeals for Veterans Claims set forth this principle in the Russell case (id. at 314).

However, Russell involved a CUE claim under 38 CFR 3.105(a), not severance of service connection under § 3.105(d). Section 3.105(d) states, in pertinent part that “[s]ubject to the limitations contained in §§ 3.114 and 3.957, service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (the burden of proof being upon the Government). . . . A change in diagnosis may be accepted as a basis for severance action if the examining physician or physicians or other proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous. This certification must be accompanied by a summary of the facts, findings, and reasons supporting the conclusion. . . .”

Thus, § 3.105(d) does not state that decisions will be reversed because they were based on CUE. These are dealt with in § 3.105(a). Rather, § 3.105(d) states that a veteran's service-connected status will be severed if it is clearly and unmistakably erroneous. Since it is a review of the veteran's current status, Start Printed Page 71093VA naturally must consider current evidence.

The courts have consistently upheld the long-standing provision in 38 CFR 3.105(d) that evidence concerning a change in diagnosis (which was not of record when service connection was granted) may be considered in determining whether service connection is clearly and unmistakably erroneous. See Stallworth v. Nicholson, 20 Vet. App. 482, 488 (2006); Daniels v. Gober, 10 Vet. App. 474, 480 (1997); Venturella v. Gober, 10 Vet. App. 340, 343 (1997). As the court has noted, if VA were not permitted to consider post-decisional evidence in a severance case, VA “would be placed in the impossible situation of being forever bound to a prior determination regardless of changes in the law or later developments in the factual record.” Venturella, 10 Vet. App. at 343.

The commenter's reliance on 38 CFR 20.1403(d) is inapposite to the question of the validity of § 3.105(d). Section 20.1403 implements 38 U.S.C. 7111 which relates to the review of Board decisions based on clear and unmistakable error. In the proposed rulemaking for § 20.1403, 63 FR 27535, May 19, 1998, VA noted that, “the term `clear and unmistakable error' originated in veterans regulations some 70 years ago, see generally Smith (William) v. Brown, 35 F.3d 1516, 1524-25 (Fed. Cir. 1994), and is now incorporated in VA regulations governing VA RO determinations. 38 CFR 3.105(a).” VA also noted (at 63 FR 27536, May 19, 1998) that the legislative history for section 7111 “indicates that the Congress expected the Department would implement section 1(b) of the bill in accordance with current definitions of CUE. H.R. Rep. No. 52, 105th Cong., 1st Sess. 3 (1997) (report of House Committee on Veterans' Affairs on H.R. 1090) (“Given the Court's clear guidance on this issue [of CUE], it would seem that the Board could adopt procedural rules consistent with this guidance to make consideration of appeals raising clear and unmistakable error less burdensome”); 143 Cong. Rec. 1567, 1568 (daily ed. Apr. 16, 1997) (remarks of Rep. Evans, sponsor of H.R. 1090, in connection with House passage) (“The bill does not alter the standard for evaluation of claims of clear and unmistakable error.”)”

Thus, § 20.1403 was intended to codify a statute whose basis was § 3.105(a), not § 3.105(d). As such, there is no reason why § 3.105(d) or § 5.175 must contain the same procedures as those in § 20.1403.

For the reasons stated above, we propose to make no changes based on this comment.

We propose, however, to revise the heading of initially proposed paragraph (b) to read, “Standard of proof to sever service connection—general rule”, and to add paragraph (c), “Standard of proof to sever service connection—fraud”. The new paragraph (c) comprises a cross reference to proposed § 5.164. It serves, without repeating proposed § 5.164, to inform the reader that VA's burden of proof to sever service connection obtained by fraud is the same as to sever service connection obtained by any other act of commission or omission. Fraud is distinguishable from other acts of commission or omission in that a claimant's fraud will breach the protection established after service connection has been in effect for 10 years, whereas other acts of commission or omission will not.

These changes would correct a misstatement in the proposed rule that the dissenting opinion in Roberts v. Shinseki, 23 Vet. App. 416, 435-39 (2010) (Hagel, J., dissenting) called to our attention. In that case, the dissent first noted that, in rewriting §§ 3.957 (protection of service connection in place 10 years or longer) and 3.105(d), “VA intends to `clarify' and recodify 38 CFR 3.957 and the provisions of 38 CFR 3.105(d) that govern when service connection may be severed at 38 CFR 5.175, entitled `Protection or severance of service connection.'” Id. at 436. The dissent also noted that our proposed regulations did not except severance of service connection based on fraud from the due process or burden of proof elements of §§ 3.957 or 3.105(d). Id. at 436, 440. Finally, the dissent noted that the NPRM stated that it explained any substantive changes between part 3 and part 5, 72 FR 28771-72, May 22, 2007, and that there was nothing in the NPRM “indicating that the rewriting and restructuring of the regulations [pertaining to severance of service connection for fraud] are intended as substantive changes.” Id. at 437-39. From these observations, the dissent reasoned, the NPRM revealed VA's interpretation of §§ 3.957 and 3.105(d) as requiring application of both the process and burden of proof provisions of § 3.105(d) before severing service connection.

Any disparity between the NPRM and the Secretary's position in the Roberts litigation results from our misstatements in the NPRM. In discussing initially proposed § 5.175 in the NPRM, we described that paragraph (a) would provide that service connection in effect for 10 years or more “may not be severed unless . . . (1) The original grant was obtained through fraud.” We further explained that proposed paragraph (b) “provided that severance of service connection may also occur when evidence establishes that it is clearly and unmistakably erroneous. . . .” 72 FR 28783, May 22, 2007. By stating “also”, we intended to state that § 5.175(a) and (b) would be alternatives for severing service connection. We did not mean that they would be a sequence of events: first, piercing the 10-year protection by showing fraud, and second, finding clear and unmistakable error in the grant of service connection obtained by fraud. We propose to correct the error in initially proposed § 5.175 by explicitly distinguishing the procedures and the burden of proof that apply to sever service connection that a claimant obtained by fraud.

§ 5.176 Due Process Procedures for Reducing or Discontinuing Disability Compensation Payments or for Severing Service Connection

One commenter suggested that we revise the introductory paragraph to enlarge the scope of § 5.176 to include situations where VA reduces or discontinues a disability rating but compensation benefits are not affected. Currently, proposed § 5.176 and its part 3 predecessor, § 3.105(e), require that VA provide notice of a contemplated adverse action followed by a 60-day period for the presentation of additional evidence only in situations where a lower rating would result in a reduction or discontinuance of compensation payments currently being made. However, where compensation benefits are not affected, where there is no adverse action, VA will provide only contemporaneous notice. See § 5.83(a).

We decline to make the suggested change to enlarge the scope of initially proposed § 5.176 because in cases where VA decreases the rating of any disability or disabilities but does not reduce the veteran's overall disability rating, there is no reduction of monetary benefits. In such cases, VA has no statutory duty to send advanced notice of its decision. Stelzel v. Mansfield, 508 F.3d 1345 (Fed. Cir. 2007). Further, due process concerns are not implicated because the veteran suffers no loss of benefits. Moreover, we note that along with the contemporaneous notice, VA also provides the veteran with information on procedural and appellate rights regarding the decision.

Another commenter believed that the initially proposed rule would eliminate the due process procedure of having an impartial VA employee participate in Start Printed Page 71094the review process for reducing ratings. The commenter noted that such procedures are already followed in the context of predetermination hearings, see § 3.105(i), and since the reduction of ratings also have an adversarial character, the practice “should be carried over to the new regulations”. While we agree that proceedings involving proposed adverse actions should be conducted by VA personnel who were not directly involved in proposing the adverse action, we decline to make changes based on this comment. The reason is that this due process procedure is already recognized in proposed § 5.82(d) which states that if the hearing arises in the context of a proposed reduction, discontinuance, other adverse action or an appeal, a VA employee or employees having decision-making authority and who did not previously participate in the case will conduct the hearing.

Proposed § 5.82(d) applies to a claimant's or beneficiary's right to a hearing upon being notified of a proposed reduction, discontinuance, or other adverse action under proposed § 5.83. Therefore, it is unnecessary to repeat the language of proposed § 5.82(d) in proposed § 5.176 because § 5.82(d) outlines an overarching VA policy that applies in all situations where a hearing is based on a proposed reduction, discontinuance, other adverse action, or on an appeal.

In addition, the commenter also urged that VA include in proposed § 5.176 the overarching duty to assist claimants in their claims by “suggest[ing] the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position”. The commenter urged that proposed § 5.176 be amended to require that VA inform beneficiaries of what type of evidence they should file to show “that service connection or a rating should be maintained.” The commenter provided an example, urging that VA inform a beneficiary if a notice of disagreement as to the reduction satisfies the requirement and would toll the 60-day period so that the veteran has more time to file additional evidence if needed.

As a preliminary matter, we note that it would be impossible for a beneficiary to file a valid notice of disagreement until VA had issued a decision, not merely a notice of a proposed decision. Initially proposed § 5.176(c) stated that in proposing a reduction or discontinuance, VA will notify the beneficiary that they may file, “evidence to show that service connection should be maintained, the rating should not be reduced, or the benefits should remain intact.” If such notices were to attempt to specify the exact type of evidence that is relevant, they might inadvertently omit relevant evidence that the beneficiary might file. Rather, it is more helpful to clearly explain “the contemplated action and furnish detailed reasons for the proposed reduction or discontinuance” (as stated in initially proposed § 5.176(b)) and allow the beneficiary to determine what evidence they can obtain or identify for VA to obtain.

The commenter also suggested that the 60-day time period for a beneficiary to present evidence when disputing a proposed severance of service connection or reduction in ratings is too short. The commenter claimed that “if VA expects veterans to file medical or scientific evidence to support their claims, the 60-day period will be too short and veterans will be effectively deprived of their procedural due process”. We decline to change the time period within which beneficiaries must present evidence to challenge a proposed adverse action. Beneficiaries generally are able to meet the 60-day deadline. Furthermore, VA already has procedures and regulations in place to extend the 60-day period if good cause is shown. See § 5.99, “Extensions of certain time limits”, based on § 3.109(b).

Finally, the commenter remarked that “many veterans subject to reduction or elimination of benefits have previously been found to be profoundly disabled.” The commenter expressed concern that “VA should recognize that in reduction actions it is dealing with some of the more helpless segments of the entire veteran population and should tailor its procedures accordingly.” VA beneficiaries subject to reduction of benefits have varying degrees of disability and our procedures are intended to provide fair treatment to all disabled veterans. To the extent that a beneficiary subject to a proposed reduction may have difficulty responding due to a profound disability, the veteran may request a good cause extension under § 5.99. We therefore propose to make no changes based on this comment.

In reviewing initially proposed § 5.176 to respond to comments, we noted that it is largely redundant of initially proposed § 5.83(a), Right to notice of decisions and proposed adverse actions. We therefore propose to delete § 5.176 and leave that number as reserved. We propose to include the following sentence from initially proposed § 5.176 in § 5.83: “If VA receives no additional evidence within the 60 days, or the evidence received does not demonstrate that the action should not be taken, VA will provide notice to the beneficiary that VA is taking the action.” We propose to omit the phrase “Prepare a rating proposing the adverse action and” because this is a administrative action that provides no due process to the beneficiary which is not already provided by the notice of the proposed adverse action.

§ 5.177 Effective Dates for Reducing or Discontinuing a Benefit Payment or for Severing Service Connection

We redesignated initially proposed § 5.177(c) as § 5.177(i) to move the paragraph explaining the exceptions of the regulation to the end of the section. We accordingly redesignated initially proposed § 5.177(d) through (i) as § 5.177(c) through (h), respectively.

In relation to the comment on initially proposed § 5.176 regarding enlarging the scope of situations where VA will provide advance notice of adverse actions, the commenter also suggested revising initially proposed § 5.177(f) for the same reasons. We decline to make this change because, as explained in our discussion on proposed § 5.176, where a decision does not result in adverse action, VA will follow the notification procedure in proposed § 5.83(b). Because the decision will not adversely affect compensation payments or other benefits, the notification procedure outlined in § 5.83(b) is adequate to preserve the veteran's procedural and appellate rights if the veteran disagrees with the decision.

One commenter questioned whether initially proposed § 5.177(f) would effectively reduce a veteran's compensation benefits by default “whether or not a final decision authorizing that reduction has been issued”. The commenter mistakenly believed that VA would reduce benefits before issuing a final decision on the matter. We decline to make any change based on this comment because § 5.177 clearly provides for two 60-day periods before a reduction or discontinuance takes effect: the first following a notice of a proposed adverse action (see § 5.83(a), the second following the notice of the final decision.

In initially proposed paragraphs (d), (e), and (f), we stated that VA will sever service connection or reduce or discontinue benefits “effective the first day of the month after a second 60-day period beginning on the day of notice to the beneficiary of the final decision.” We propose to revise the language in each of those paragraphs to clarify that after applying the 60-day notice period, VA will apply a second 60-day period which begins on the day VA sends notice to the beneficiary of the final Start Printed Page 71095decision. VA will then take the appropriate action to modify benefits, effective the first day of the month after the second 60-day period.

As with initially proposed § 5.175, discussed above, the dissent in Roberts, 23 Vet. App. at 435-39, revealed that initially proposed § 5.177 did not clearly accomplish our intent, or, at least, it was ambiguous when read together with the regulation on effective dates for correcting erroneous awards (initially proposed § 5.165, redesignated § 5.167). We therefore propose to revise the first sentence of initially proposed paragraph (d), redesignated as paragraph (c), to read: “Unless severance is based on the beneficiary's act of commission or omission that resulted in VA's grant of benefits, this paragraph applies when VA severs service connection.” We also propose to add a cross reference to § 5.167 stating, “See § 5.167 for effective date of severance of service connection obtained by fraud.”

The Roberts dissent noted that “VA reports that proposed § 5.165 `applies only to reductions or discontinuances of erroneous awards.' 72 Fed. Reg. 22,779.” Id. at 438, fn 13. The next sentence in the NPRM stated, however, “If a payment has not been authorized by a rating decision, then VA has not made an award of such an erroneous payment and therefore recovery of that payment is not a reduction or discontinuance of an `erroneous award' under 38 U.S.C. 5112(b)(9) or (10).” In other words, initially proposed § 5.165 distinguished “reductions or discontinuances” of “erroneous awards” from “reductions or discontinuances” of other types of payments that are not “awards,” and did not distinguish “reductions or discontinuances” from severance for fraud as an act of commission or omission. The proposed revision to redesignated § 5.177(c) and the additional cross reference to § 5.167 should make perfectly clear that the effective date of severance of service connection obtained by fraud is governed by proposed § 5.167 and is not 60 days after VA provides notice of the final decision severing service connection.

As initially proposed, § 5.177(g) stated that VA would reduce or discontinue pension payments because of a change in disability or employability status effective the first day of the month after a second 60-day period beginning on the day of notice to the beneficiary of the final decision. This statement conflicts with 38 U.S.C. 5112(b)(5), and current 38 CFR 3.105(f). The beneficiary is not afforded a second 60-day period before his or her benefits are to be reduced. We, therefore, propose to correct paragraph (g) in redesignated paragraph (f) to state that the effective date for the reduction or discontinuance of pension because of a change in disability or employability status is the first day of the month after notice to the beneficiary of the final decision.

We propose to move the effective date provision in initially proposed paragraph (h) from § 5.177 to § 5.591(b)(5), to consolidate all the effective date rules on Chapter 18 monetary allowance into one section.

IX. Subpart D: Dependents and Survivors AL94

In a document published in the Federal Register on September 20, 2006, we proposed to revise VA's regulations governing dependents and survivors of veterans, to be published in a new 38 CFR part 5. 71 FR 55052. We provided a 60-day comment period that ended November 20, 2006. We received submissions from three commenters: Disabled American Veterans, and two members of the general public.

§ 5.181 Evidence Needed To Establish a Dependent

In the NPRM, we proposed §§ 5.181 and 5.182 as separate sections. Because we have combined the contents of initially proposed §§ 5.181 and 5.182, as explained in § 5.182 below, we propose to renumber initially proposed § 5.180 as § 5.181. We propose to mark § 5.180 as reserved.

We also propose to reorganize and simplify the contents of initially proposed § 5.180 into § 5.181.

Proposed paragraph (a) simplifies the initially proposed “purpose” paragraph to clearly state that this regulation is limited to rules governing adding dependents, and with the exception of paragraph (d), does not govern changes to existing dependents. Also, in proposed paragraph (b)(1), we have eliminated the applicability of this rule to a case involving death, because death does not establish a dependent. Similar conforming changes were made to § 5.182, which governs only changes to the status of existing dependents. We proposed these changes for clarification purposes; we do not intend to change the persons to whom these rules would have applied as initially proposed.

We also propose to change paragraph (b)(1) by inserting “, day,” after “month” and “(city and state, or country if outside of a state)” after “place”. This information is necessary for VA to properly document marriages, termination of marriages, and births.

In initially proposed paragraph (c), we stated “VA will require additional supporting evidence to establish a veteran's marital status or a parent/natural child relationship . . . if any of the following factors are true: . . . (3) VA questions the validity of all or part of the statement;”. In comparing paragraph (c) with other sections in subpart D, we determined that the term “validity” means having legal effect or force. Our intent in paragraph (c)(3) was simply to include a question of the accuracy of a statement as one of the reasons for requiring additional evidence. We have, therefore, replaced the term “validity” with “accuracy”.

In paragraph (c)(5), we propose to change the rule that a statement is not sufficient to establish dependency when there is an indication of fraud or misrepresentation. Thus, we intend to change “in the other evidence in the record” to “in other evidence in the record”, removing the word “the” that appeared before “other evidence”. This change eliminates any suggestion that the reasonable indication of fraud or misrepresentation must appear in the totality of the evidence. VA will require additional evidence if any individual piece of evidence indicates fraud or misrepresentation, or if the evidence in its entirety gives such indication. This revision would make proposed paragraph (c)(5) better conform to proposed paragraph (c)(4), which would provide that a statement is not sufficient to establish dependency if the “statement conflicts with other evidence in the record . . .”

For reasons explained in the preamble to initially proposed § 5.181(c), 71 FR 55052, 55055, we are omitting certain provisions of § 3.213(b) from part 5, subpart D. Because we now propose to consolidate initially proposed § 5.181(c) and other initially proposed provisions in currently proposed § 5.184(d), we would repeat only the first sentence of § 3.213(b) in § 5.184(d). The restoration of benefit provisions of § 3.103(b)(4), restated in § 5.84, is more comprehensive than the restoration provision of § 3.213(b). Consequently, all but the first sentence of § 3.213(b) is superfluous, and § 5.184(d) would restate only that first sentence.

Initially proposed § 5.180(d) stated:

The types of additional supporting evidence required by paragraph (c) of this section are set forth in §§ 5.192 through 5.194, 5.221, 5.229 and 3.211 of this chapter. Where evidence is set forth in a particular section in the order of preference, VA may accept evidence from a lower class of preference if it is sufficient to prove the fact at issue.

This language was confusing. The rule was intended to explain that certain types of evidence are needed to Start Printed Page 71096establish specific facts. For example, in proposed § 5.192(c), a copy of a public record of marriage is generally more reliable and consequently preferred over an affidavit from the official who performed the marriage ceremony, and therefore, VA will not accept the latter unless the former is unobtainable. These rules of preference are more thoroughly explained in the individual paragraphs that set forth the hierarchy of preferred evidence, so we struck the language from initially proposed § 5.180(d). The only text that remained were the cross-references to the actual rules that describe the additional evidence that may be provided to establish specific facts. Therefore, we propose to move those cross-references into § 5.181(c) and renumber initially proposed § 5.180(e) as § 5.181(d). We further propose to add language to the specific regulations cited in proposed § 5.181(c), which include §§ 5.192(c), 5.221, 5.229, and 5.500. In addition, we have determined that the list of cross references was incorrect. We propose to correct the list in § 5.181(c).

Several initially proposed rules in RIN 2900-AL94 inadvertently added a requirement that a claimant's or beneficiary's statement filed as proof of marriage, termination of marriage, or birth of a child must be “written”. No such requirement exists in current §§ 3.204(a)(1) or 3.213(a) and (c). We have therefore not included this requirement in §§ 5.151(c), 5.181(b), 5.182(a), 5.183(a) or (b), 5.192(c), 5.193, 5.221(b), or 5.229.

§ 5.182 Changes in Status of Dependents

We propose to combine the contents of initially proposed §§ 5.181 and 5.182 into § 5.182, and reorganize and simplify the rules. In the revised rule, we refer in proposed § 5.182(a) to a beneficiary's duty to report a “[c]hange in status of a living child affecting who no longer meets the definition of a dependent”. This language replaces language in the initially proposed § 5.182(a)(2) that had specifically discussed discontinuance of school attendance. The broader language in the proposed rule more accurately describes a beneficiary's duty to report any change in a child's status that makes the child no longer a dependent of the beneficiary.

In initially proposed paragraph (a), we stated that a beneficiary must provide VA a statement containing the details of any change in dependency that could lead to a reduction or discontinuance of VA benefits. We required that the beneficiary report the month and year of the change. VA now requires the day, as well as the month and year of the change. We also require the city and state, or country if outside of a state, where the change occurred. See VA Form 21-686c, Declaration of Status of Dependents. We propose to amend paragraph (a) to conform to VA's current practice.

We propose to remove the cross reference to § 3.217, “Submission of statements or information affecting entitlement to benefits”, which was contained in initially proposed § 5.181(b) because § 5.182 contains all the relevant information needed to understand changes in dependency and so the cross reference is unnecessary.

We propose to move what was initially proposed paragraph § 5.181(c) to proposed § 5.184(d) because it is an effective-date rule specific to § 5.184.

§ 5.183 Effective Date of Award of Benefits for a Dependent

Initially proposed § 5.183 stated that the effective date for adding a dependent is the date VA receives notice of the existence of the dependent. We propose to change “notice” to “information”. In proposed § 5.1, we define notice as a written document that VA sends to the claimant or beneficiary. To state that VA receives notice of the dependent would be contrary to our proposed definition of the term. We mean to say that a dependent will be added upon receipt of information of the existence of such dependent. We also propose to state that the “information” must be filed by the claimant or beneficiary. As stated in proposed § 5.181, this regulation is limited to adding dependents, therefore, a claimant or beneficiary may establish a dependent to a new or existing award. This clarification does not constitute a change from the proposed rule.

Initially proposed § 5.183(a) stated that evidence of dependency must be received within 1 year “of” VA's request. We propose to clarify the regulation to state that the evidence must be received “no later than 1 year after” VA's request in order to eliminate ambiguity with regards to the date of submission of evidence. We have made similar changes throughout this regulation, and throughout this document, where we previously stated “1 year of” to now state “1 year after”. These additional changes to this rule are intended to simplify the general rule and the exceptions thereto. Notably, we propose to move paragraph (c) into paragraph (a) and reorganize paragraph (a).

Initially proposed § 5.183(b)(3) stated the effective date for establishing the dependency of an adopted child. However, it did not specify that in order for these dates to apply, VA must receive information of the adoption no later than 1 year after the event. We therefore propose to correct this omission by stating “For an adoption, the earliest of the following dates, as applicable, if VA receives information about the adoption no later than 1 year after the adoption”. This change is consistent with § 3.401(b)(1)(i) and current practice.

§ 5.184 Effective Dates of Reductions or Discontinuances Based on an Event That Changes Dependency Status

We propose to combine the effective date provisions of initially proposed §§ 5.181(c), 5.184, and 5.198 into one section to make them easier to find and to avoid redundancy. We propose to mark § 5.198 as reserved.

As initially proposed, we referred to a marriage, divorce, annulment, or death as a “change” in dependency status. However, these are “events” that result in “changes” in dependency status. For clarity, we propose to refer to these as an “event that changes” dependency status.

In initially proposed § 5.198(b), we stated, “VA will pay the reduced rate or discontinue benefits effective the first day of the month that follows the month in which the divorce or annulment occurred.” We have determined that the term “occurred” was ambiguous because under some states' laws, the divorce or annulment does not take effect immediately after the court issues the decree. We therefore propose to revise this language to state, “VA will pay . . . in which the death occurred or in which the divorce or annulment became effective.” For the same reason, we propose to make a conforming change to § 5.205(b)(1) and (2), regarding annulment, and (c)(1) and (2), regarding divorce.

§ 5.190 Status as a Spouse

We have determined that there is no need to establish a rule for “status” as a spouse. First, the term is plain language and does not need a specialized definition for VA purposes (unlike, for example, the term “surviving spouse”, which does have a specialized meaning). There can be no question that a reference to a “spouse” is a reference to a person's marriage partner. Second, proposed § 5.191 more than adequately defines a valid marriage for VA purposes. To the extent that proposed § 5.190 had implemented the 38 U.S.C. 101(31) requirement that a spouse be of the opposite sex, that requirement is contained in proposed Start Printed Page 71097§ 5.191. Hence, we propose to delete this rule and mark § 5.190 as reserved.

§ 5.191 Marriages VA Recognizes as Valid

Initially proposed § 5.191 referred to deemed-valid marriages as an exception to the general rule set forth in this section. However, a deemed-valid marriage is not an exception to the types of marriages recognized by VA; rather, it is one type of such marriages. Therefore, we propose to restructure § 5.191 and add a paragraph (c). In addition, we propose to change the term “is” valid to “was” valid. Because the laws of the states may change, we want to specify that the marriage had to be valid at the time that it occurred. Finally, we propose to change the phrase “the right to benefits” in § 5.191(b) to “entitlement to benefits”. This change improves clarity and is consistent with the language of other part 5 VA regulations.

Initially proposed § 5.191(a) and (b) used the term “parties” to mean “persons”, as stated in the introductory sentence. In order to avoid confusion, we propose to change the term “parties” to “persons” in paragraphs (a) and (b).

§ 5.192 Evidence of Marriage

As stated in our discussion of § 5.181 above, VA requires the first type of evidence listed in the relevant section as proof of a certain relationship, if it is obtainable. If it is unobtainable, then VA will accept the next listed type of evidence that is obtainable to prove the relationship. In part 3, this basic principle is stated in 38 CFR 3.204(b), which refers the reader to §§ 3.205 through 3.211. It is helpful to state this principle in each section where it applies, and we therefore propose to state it in §§ 5.192(c), 5.221(b)(2), 5.229, and 5.500.

§ 5.193 Proof of Marriage Termination Where Evidence Is in Conflict or Termination Is Contested

We propose to make minor revisions to § 5.193 for clarity.

§ 5.194 Acceptance of Divorce Decrees

We propose to make minor revisions to § 5.194 for clarity.

§ 5.196 Void or Annulled Marriages

We propose to combine initially proposed §§ 5.195 and 5.196 to improve clarity and eliminate the need for users to refer to two regulations to address the issue of void or annulled marriages. The content of both initially proposed regulations would now appear in § 5.196. Section 5.196(a)(1) was initially proposed as § 5.195. Section 5.196 was initially proposed as § 5.196(a). We propose to mark § 5.195 as reserved.

One commenter questioned VA's authority to determine whether a marriage was void in accordance with the law of the place that governs the marriage's validity. The commenter opines that 38 U.S.C. 103(c) does not appear to provide VA with jurisdiction or authority to make an independent adjudication on the validity of a veteran's marriage.

As stated in the preamble to the initially proposed rule, current part 3 includes references to “void” marriages, but it does not explain the meaning of a “void” marriage. See 38 CFR 3.207(a). Under 38 U.S.C. 103, VA does have the authority to make adjudicative decisions on the validity or legality of a marriage when determining whether or not a person is or was a spouse of a veteran for VA purposes. The commenter's suggested interpretation that the statute merely allows for the recognition of marriage notwithstanding contrary state law is not consistent with the “whether or not” wording of the statute or with VA's long-standing interpretation of the statute. The statute provides that determinations of validity of marriage be made according to the law of the place where the parties resided at the time of the marriage or the law of the place where the parties resided when the right to benefits accrued. This does not mean VA is adjudicating the status of the marriage for purposes of state civil law, which the commenter seems to misunderstand VA to be doing. We therefore propose to make no changes based on this comment.

This commenter further suggests that any new rule regarding VA's authority to determine the validity of a marriage as it pertains to a veteran's surviving spouse or a veteran's child, should include a procedural reference of such questions to the Regional Counsel because VA adjudicators are generally not equipped to research and determine such matters. We agree with this suggestion. In fact, VA has long-standing procedural guidelines for determination of a void marriage. In such cases, the Veterans Service Representative collects all of the pertinent information and evidence from the claimant and files the case with Regional Counsel for a legal opinion as to whether or not the marriage is void. To implement this suggestion, we have revised proposed § 5.196 to indicate that VA Regional Counsel will make the determination concerning whether a marriage is void under the law of the place that governs the validity of the marriage.

§ 5.200 Surviving Spouse: Requirement of Valid Marriage to Veteran

We propose to reorganize initially proposed §§ 5.200 and 5.201 to eliminate redundancy and potentially confusing cross referencing, and to significantly clarify the rules. First, we propose to renumber initially proposed § 5.201 as § 5.200. We have also renamed the rule as, “Surviving spouse: Requirement of valid marriage to veteran.” This title is more descriptive of the rules within this section. This reorganization is for clarity and simplification.

In § 5.200(a), we propose to simplify several initially proposed paragraphs to state that in order to qualify as a surviving spouse, the marriage between the veteran and the person by or for whom surviving-spouse status is sought must have met the requirements of § 5.191, unless the “deemed valid” exception in paragraph (b) applies.

In § 5.200(b)(1), we clarify that there must have been an attempt at legal marriage and that the person seeking surviving-spouse status must have believed that a valid marriage resulted and lasted until the veteran died. This is not a change from current practice. We also clarify that the marriage must have lasted for 1 year unless the person had a child with the veteran. The proposed rule had required that a child have been both “of or before the marriage”; however, because the marriage must have continued until the veteran died, the result is that the child may have been born at any time. Thus, the simplified language in § 5.201(b)(1) is not substantively different from the current and proposed rules.

Initially proposed § 5.201(c) did not clearly define the phrase “no knowledge of legal impediment”. We propose to clarify the definition of legal impediment in initially proposed § 5.201(c), which is now renumbered as § 5.200(b)(2). This clarification is consistent with current practice. We also propose to clarify the evidence that the person must file under § 5.192(c), the requirements of which must be met under § 5.200, without any contradictory evidence.

We also propose to reword the regulation text in § 5.201(e), which is now renumbered as § 5.200(b)(4), for clarity.

§ 5.201 Surviving Spouse: Requirements for Relationship With the Veteran

We propose to renumber initially proposed § 5.200 as § 5.201, and rename the section, “Surviving spouse: Requirements for relationship with the Start Printed Page 71098veteran”. This title is more descriptive of the rules within this section. This reorganization was made for clarity and simplification.

Initially proposed § 5.200(a)(2) (now renumbered as § 5.201(a)) specified that to qualify as a surviving spouse, that person must have been a member of the opposite sex from the veteran. Because § 5.191, “Marriages VA recognizes as valid”, requires that a valid marriage must be to a person of the opposite sex, that provision is unnecessary in § 5.201(a) and we propose to remove it. We also propose to make several changes to improve clarity and consistency with the language of other VA regulations.

We propose to move the content of initially proposed § 5.430(b), “Marriage date requirements for Improved Death Pension”, to § 5.201(b)(1), “More than one marriage to the veteran.” The content is based on 38 U.S.C. 103(b), which is not limited to just Improved Pension.

We propose to clarify the provision concerning whether a separation was temporary, initially proposed as § 5.200(b)(3). In § 5.201(b)(4) we propose to add the term “with estrangement” to modify “separation” to accurately reflect the circumstances to which paragraph (b)(4) applies.

§ 5.203 Effect of Remarriage on a Surviving Spouse's Benefits

The preamble to initially proposed § 5.203(a) stated that it would be a new provision, restating part 38 U.S.C. 101(3), the statutory definition of surviving spouse. Part 3 restates the statutory definition of surviving spouse in § 3.50(b). As a result of the elimination of initially proposed §§ 5.200 and 5.202, and the incorporation of some of those initially proposed provisions in currently proposed § 5.203, we now propose to restate § 3.50(b)(2) in § 5.203(a)(2).

Initially proposed § 5.202 concerned the effect of a Federal court decision on a remarriage determination. We propose to mark § 5.202 as reserved, and include this rule in § 5.203(a)(1). We also propose to change the regulation text in proposed § 5.203(a)(1) from “In determining eligibility for pension, death compensation, or dependency and indemnity compensation” to “In determining eligibility for benefits” to clarify that the rule applies to all benefits based on surviving-spouse status. It simplifies the regulation.

We propose to revise the language of initially proposed paragraph (c)(4), now redesignated as (d)(4), by removing the phrase “openly to the public”. That phrase is unnecessary because that provision is already stated in paragraph (a)(2). For the same reason, we have removed that phrase from initially proposed paragraph (d)(1)(iii), now redesignated as paragraph (e)(1)(iii).

One commenter questioned why there was a rule that allowed reinstatement of benefits to a surviving spouse who is no longer remarried because of the death of the second spouse, but there was no rule that allowed the surviving spouse to establish her initial entitlement to benefits after the death of her second spouse. The commenter provided the following example. A surviving spouse is married to the veteran for over 30 years. The veteran subsequently dies and the surviving spouse remarries, but the surviving spouse's second husband dies after several years of marriage. After the death of her second husband, the surviving spouse wants to claim VA benefits. The commenter further indicated that VA allows for the surviving spouse to receive benefits only if her second husband died before November 1, 1990, but in the scenario that was presented, the veteran died in January 1991. The commenter contends that the surviving spouse would not be entitled to benefits because this is not considered to be a reinstatement of benefits, but rather a first-time application. Initially proposed § 5.203(c) stated that the surviving spouse of the veteran may be entitled to receive benefits if the remarriage ended before November 1, 1990. This rule corroborates the commenter's statement. However, initially proposed § 5.203(d) (now § 5.203(e)) allowed a surviving spouse to be eligible for benefits if he or she was otherwise ineligible for DIC under the laws in effect prior to June 9, 1998, because of the surviving spouse's remarriage after the veteran's death. Although the surviving spouse's eligibility to DIC is said to be reinstated under § 5.203(e), this section applies to reopened as well as original claims. The limitation is that no payments may be issued for any period before October 1, 1998. Because proposed § 5.203(e) already addresses the concerns of the commenter, we propose to take no action based on this comment.

We propose to clarify § 5.203(e)(2) to state that no payments may be made for any period before October 1, 1998. The regulation text stated the month, and year, but failed to state the date. The exact date is needed in order to avoid an erroneous payment.

We also propose to clarify § 5.203(f)(2) to state that no payments may be made for any period before January 1, 2004. The regulation text stated the month and year, but failed to state the date. The exact date is needed in order to avoid an erroneous payment.

§ 5.220 Status as a Child for VA Benefit Purposes

We propose to reword the introductory text in § 5.220 for clarity by improving sentence structure.

Initially proposed § 5.220(a), began with the exception prior to the rule. To improve readability, we propose to place the exception at the end of the general rule.

In nitially proposed § 5.220(b)(2)(i), which is now paragraph (b)(1), we referred to a child who is “incapable of self-support through his or her own efforts by reason of physical or mental disability”. We propose to eliminate the phrase “through his or her own efforts” because it is redundant of “self-support” and might be misinterpreted to mean that the child intentionally caused his or her incapacity, which is clearly not what we intended.

We propose to move the content of initially proposed § 5.220(c)(2) to § 5.226(c). Section 5.226(c) elaborates on the criteria set forth in § 5.220(c)(2). This approach also enables us to eliminate the need to refer back to § 5.220 in § 5.226(c). We will leave § 5.220(c)(2) as a cross-reference to § 5.226.

We propose to add a new paragraph (d) to proposed § 5.220. In accordance with § 3.503(a)(2), this new paragraph would provide that a person is still considered a child of a veteran even if the person has entered active duty.

§ 5.221 Evidence To Establish a Parent/Natural Child Relationship

We propose to reword the regulation text in § 5.221(a)(2) for clarity.

We propose to delete § 5.221(a)(2)—Note. The content of the Note is adequately covered in § 5.220(c)(2), so it is unnecessary.

Initially proposed § 5.221(b)(2)(iii)(A) limited evidence of paternity to church records of baptism without referencing other religions. We propose to revise the rule to allow any “religious-context record documenting the birth of the child” in order to eliminate any perceived bias for or against a particular religion or faith. We propose to add similar language to § 5.229(b).

§ 5.222 Evidence To Establish an Adopted Child Relationship

We propose to add a sentence to the initially proposed undesignated first paragraph to state the purpose of this section. We propose to make technical revisions to § 5.222 to clarify that this rule is an exception to § 5.181(b). We Start Printed Page 71099propose to make similar clarifications to §§ 5.223 and 5.224.

We propose to add an order of preference of types of evidence VA requires to prove an adopted child relationship. We explained orders of preference for evidence in our discussion of § 5.181.

§ 5.223 Child Adopted After a Veteran's Death

Originally proposed § 5.223 (a) (now (b)) required, inter alia, that, “The person adopted was living in the veteran's household at the time of the veteran's death . . .” This language was based on § 3.57(c)(1). Upon further review, we note that § 3.210(c)(2) uses the phrase “was a member of the veteran's household” to describe the same criteria for children adopted after a veteran's death. To make § 5.223(b) consistent with similar provisions in part 5 (§§ 5.220, 5.226, 5.233, 5.332) we propose to change the paragraph to read, “was a member of the veteran's household”. We therefore propose not to restate the language of § 3.57(c)(1) and (3) in part 5 because it is redundant of the language in § 3.210(c)(2).

§ 5.225 Child Status Based on Adoption Into a Veteran's Family Under Foreign Law

Our definition of “State” in § 5.1 includes territories and possessions of the US. Therefore it is unnecessary to include the Commonwealth of the Northern Mariana Islands in this section. We propose to remove it.

§ 5.227 Child Status Based on Permanent Incapacity for Self-Support

We have clarified the regulation text in § 5.227(b)(1)(iv). The initially proposed rule said that “evidence that a person was not employed before or after reaching 18 years old tends to show incapacity for self support when the lack of employment was due to the person's physical or mental disabilities and not due to unwillingness to work or other factors unrelated to the person's disability.” We believe that the phrase “before or after reaching 18 years old” could be unclear and we therefore propose to clearly state that the rule applies to a person who “has never been employed”.

We propose to revise initially proposed § 5.227(c) to clarify that this rule does not exclude from consideration any particular evidence or require that any evidence should be treated more favorably. The rule simply provides guidance to VA employees and to the public about likely sources of evidence relevant to the question whether a person is permanently incapacitated.

§ 5.228 Exceptions Applicable to Termination of Child Status Based on Marriage of the Child

We propose to add an introductory sentence to give context to initially proposed § 5.228.

§ 5.229 Proof of Age or Birth

We propose to revise initially proposed § 5.229 to clearly state that the evidence described therein must be provided in accordance with the order of preference in which it is listed, as discussed earlier in proposed § 5.192, and have also reorganized the rule to improve readability.

In addition, we propose to remove the cross reference to § 5.180(e) (now § 5.181(d)), “Acceptability of photocopies”. That paragraph applies equally to all of the sections listed in § 5.181(c), so there is no need to reference it in any of those sections.

In the initially proposed paragraph (a)(4) we inadvertently changed the persons who could certify a birth. We stated that a claimant or beneficiary could prove age or birth with “[a]n affidavit or certified statement from a physician or midwife present during the birth”. However, 38 CFR 3.209(d), from which this paragraph derives, allows proof of age or birth with an “[a]ffidavit or a certified statement of the physician or midwife in attendance at birth”. We propose to use this language because it is a more precise statement of the requirement.

§ 5.230 Effective Date of Award of Pension or Dependency and Indemnity Compensation to, or for, a Child Born After the Veteran's Death

We propose to reword the section for clarity.

§ 5.234 Effective Date of an Award, Reduction, or Discontinuance of Benefits Based on Child Status Due to Permanent Incapacity for Self-Support

We propose to restructure initially proposed § 5.234(a), by creating separate paragraphs (a)(1) and (2) for effective dates of awards and for reductions and discontinuances. We believe this structure will better inform readers on the contents of this section.

§ 5.238 Status as Veteran's Parent

In initially proposed § 5.240(c) we stated that the term “parent” includes a natural mother or father of an illegitimate child “if the usual family relationship existed.” Upon further review, we have determined that there is no statutory or regulatory authority for this provision, and we therefore propose to remove it.

Comment Relating to a Different Portion of This Rulemaking

A comment was submitted by a member of the public concerning title 32 National Guard troops suggesting that their active duty for training be considered as “active duty”, thereby allowing them veteran status. This comment is outside the scope of this proposed rule published under RIN 2900-AL94, but is relevant to another NPRM, RIN 2900-AL67, “Service Requirements for Veterans”. This comment was addressed together with all of the other submissions received in connection with RIN 2900-AL67.

Changes in Terminology for Clarity and/or Consistency

We also propose to correct our use of the terms “claim” and “application”. Under 38 CFR 3.1(p), “Claim—Application” is defined as “a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit”. As stated in initially proposed § 5.1, for purposes of part 5, “claim means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a VA benefit under this part” and as stated in proposed § 5.1, “application means a specific form required by the Secretary that a claimant must file to apply for a benefit”. We similarly propose to edit the part 5 regulations proposed in AL94 to correct other inconsistencies in terminology.

X. Subpart E: Claims for Service Connection and Disability Compensation Service-Connected and Other Disability Compensation

A. Service-Connected and Other Disability Compensation

In a document published in the Federal Register on September 1, 2010, we proposed to revise VA regulations governing service-connected and other disability compensation. See 75 FR 53744. We provided a 60-day comment period that ended November 1, 2010. We received submissions from 10 commenters: National Organization of Veterans Advocates, National Veterans Legal Services Program, Paralyzed Veterans of America, Vietnam Veterans of America, and six members of the general public.

One AM07 commenter commended VA “for the hard work and dedication that its personnel have put into this important project” and stated that, Start Printed Page 71100“Overall . . . VA did achieve its goals to make its service-connected regulations `logical, claimant-focused and user friendly[.]' ”

One commenter stated that while the general idea of the proposed rule is good, some of the proposed changes may be adverse to veterans. However, the commenter did not specifically explain which changes might be adverse. The commenter also urged that VA offer online access to court decisions cited in its rulemaking documents.

Because the commenter did not specifically explain which changes might be adverse to veterans, we cannot respond to that assertion, and we propose to make no change based on that comment. Regarding the suggestion on court decisions, we note that decisions of the U.S. Court of Appeals for Veterans Claims are available on their Web site at www.courts.cavc.gov and decisions of the U.S. Court of Appeals for the Federal Circuit are available at http://www.cafc.courts.gov. We therefore propose to make no changes based on these comments.

Another commenter asserted that because of the complexity of the regulations proposed in AM07, veterans will incur very expensive legal costs in order to interpret them and determine what benefits they are entitled to. The commenter urged VA to add a section at the end of part 5 outlining what a veteran's options are if the veteran disagrees with a VA decision. The commenter also suggested that VA provide a telephone number to call in the event that a veteran does not understand the final rule on part 5.

VA's intent in rewriting these regulations was to make them less complex. To the extent that commenter believes that he or she requires assistance in preparing a claim for benefits, VA has recognized 87 Veterans Service Organizations (VSO) for purposes of providing no-cost assistance with claims for VA benefits. Each of these VSOs has accredited representatives available to help veterans in preparing claims. A searchable list of recognized VSOs and accredited representatives is available at http://www.va.gov/​ogc/​apps/​accreditation/​index.asp.

The regulations on how to file a notice of disagreement with a VA decision are found in 38 CFR parts 19-20, not in part 3, so that comment is outside the scope of this rulemaking. VA does not offer a phone number for purpose of explaining its regulations; we do not believe that would be an efficient use of government resources. But VA does have a number where veterans can call to inquire about the status of their benefits claims (1-800-827-1000), which veterans find very helpful. For these reasons, we propose to make no changes based on this comment.

One commenter stated that he is opposed to “patient registries” in the prescription process and that all drugs should be taken or not at the discretion of the patient with the advice of his or her doctor. Because this comment is outside the scope of this rulemaking, we propose to make no change.

One commenter urged that VA suspend its Regulation Rewrite Project until it is shown how the implementation of part 5 will interact with certain other VA programs: Virtual VA, Virtual Regional Office and the Veterans Benefits Management System. We do not believe that the implementation of part 5 will disrupt those information technology systems because they were designed to accommodate changes in law or regulation. VA will attempt to implement part 5 in a manner that causes the minimum possible disruption to VA claims processing operations. We believe that over the long term, having clear regulations for our employees to apply will significantly improve timeliness and accuracy in claims processing.

§ 5.242 General Principles of Service Connection

Initially proposed § 5.242(a) states that “VA will give due consideration to any evidence of record concerning the places, types, and circumstances of the veteran's service . . .” One commenter suggested that we insert the phrase “and records constructively in the VA's possession” after “evidence”, to ensure that VA complies with the constructive possession rule set forth in Bell v. Derwinski, 2 Vet. App. 611 (1992).

We do not believe it is necessary to include Bell's constructive possession rule in VA regulations, and doing so might actually confuse readers. Any evidence that is constructively in VA's possession would already be encompassed by the rule in § 5.4(b) that VA decisions will be based on a review of the entire record. Adding that this includes evidence within VA's possession and which could reasonably be expected to be a part of the record could imply a requirement that the agency of original jurisdiction (AOJ) must consider material that is not actually in the record, which would be impossible. Furthermore, if the AOJ is aware of such evidence and it is “necessary to substantiate the claim”, then the AOJ is already under a duty to obtain it and add it to the record (see 38 CFR 3.159, to be codified in part 5 as § 5.90). We therefore propose to make no change based on this comment.

One commenter expressed concern that we did not repeat in proposed § 5.242 the following language from 38 CFR 3.303(a): “Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.”

We inadvertently failed to explain why we did not include this language in initially proposed § 5.242. Because proposed § 5.4(b) would clearly state that “VA will base its decisions on a review of the entire record”, we believe it would be redundant and possibly confusing to restate this principle in specific sections in part 5 (as does part 3). Similarly, § 5.4(b) states:

It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent with the facts shown in every case. VA will make decisions that grant every benefit that the law supports while at the same time protecting the interests of the Government.

Since this language is substantially the same as the language quoted by the commenter, and it applies to all VA claims rather than just service connection, there is no need to repeat it in § 5.242.

One commenter urged VA to establish a new policy by revising initially proposed § 5.242 to create a presumption based on H.R. 1490, 110th Congress, 1st session. The commenter suggested that VA include the following language in § 5.242(c):

(1) A claimant presenting a claim for benefits with respect to a service-connected disability or death shall be presumed to have presented a valid claim of service connectedness, subject to the requirements of subparagraph (2), unless the Secretary determines that there is clear and convincing evidence to the contrary.

(2) A claimant presenting a claim described under subparagraph (1) shall be required to support such claim with proof of service referred to in such claim, and a brief description of the nature, including the connection to such service, of the disability or claim.

The commenter asserted that this presumption would allow VA to quickly process backlogged claims.

The purpose of the Regulation Rewrite Project is to make VA's compensation and pension regulations more logical, claimant-focused, and user-friendly, not to serve as a vehicle for making major changes to VA Start Printed Page 71101policies. Thus, the comment is outside the scope of this rulemaking.

§ 5.243 Establishing Service Connection.

Two commenters expressed concern that VA's use of the term “proximately caused” in proposed § 5.243(a) would improperly narrow the criteria for showing incurrence or aggravation. One of these commenters believed that using the term would improperly import a restrictive tort law concept into VA's regulations on service connection. Although this was not our intent, to avoid any such misinterpretation, we propose to revise the term to “due to or the result of” as suggested by one of the commenters. For the same reason, we propose to make the same revision in §§ 5.246 and 5.247.

One of these commenters also rejected the use of term “caused by” in proposed § 5.241(a) and (b), which the commenter suggested be changed to “ `incurred' or `aggravated' ” (as in current 38 CFR 3.1(k) and 3.303(a)) or “related to”. The commenter similarly, urged VA to replace “proximately caused” in proposed § 5.243(a) with “related to” and “causal link” in proposed § 5.243(a)(3) with “relationship.” The commenter acknowledged that, as we noted in the preamble to proposed § 5.243, the court in Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) explained that service connection requires “a causal relationship between the present disability and the disease or injury incurred or aggravated during service” (citing Caluza v. Brown, 7 Vet. App. 498, 505 (1995)). Nevertheless, the commenter believed that use of the causation terms that VA proposed in §§ 5.241 and 5.243 will cause confusion by imposing a “strict medical standard” in cases where it would be “inappropriate and excessive.” The commenter asserted that diseases such as tempromandibular joint syndrome and ulcers “may not be susceptible to definitive proof that the disease was `caused by' the incident in service.” The commenter also noted that VA has determined that there is a positive association between herbicides and three medical conditions “even though there is no proof that exposure to herbicides caused veterans to develop the conditions.”

As a preliminary matter, we note that the language “proximately caused” in proposed § 5.243(a) was merely a recitation of the title of proposed § 5.246, rather than regulation text. More fundamentally, we note that the “causal relationship” principle set forth in the Caluza case is a well established principle of veterans law and no court has held that it is in any way inconsistent with the regulatory language in §§ 3.1(k) or 3.303(a). We disagree with the assertion that the use of the terms that VA proposed will cause confusion by imposing a “strict medical standard” in cases where it would be “inappropriate and excessive” and the commenter offers no support for this assertion. We likewise disagree with the assertion that the proposed rules would impose some new “definitive proof” standard for diseases such as temporomandibular joint syndrome and ulcers, and again the commenter offers no support for this assertion. Regarding the commenter's statement that VA has determined that there is a positive association between herbicides and three medical conditions “even though there is no proof that exposure to herbicides caused veterans to develop the conditions”, we note that this determination was made pursuant to an entirely different statute (38 U.S.C. 1116) than the statutes that authorize the causation terms used in §§ 5.241 and 5.243 (38 U.S.C. 1110 and 1131). Our use of the causation terms in §§ 5.241 and 5.243 will express the same concepts as stated in §§ 3.1(k) or 3.303(a), with no substantive change, and in a way that is more clear to those using the regulations. For these reasons, we propose to make no changes based on these comments.

One commenter urged that, in order to comply with the standard for continuity of symptomatology contained in Savage v. Gober, 10 Vet. App. 488, 498 (1997), VA should revise initially proposed § 5.243(d) by inserting “injury or disease” before “or signs or symptoms” in paragraphs (d)(1) and (2) and also in paragraph (d)(3). For the same reason, the commenter also suggested that VA revise paragraph (d)(3) to read, “(3) Competent evidence relates a present injury or disease or present signs or symptoms to the injury or disease or signs or symptoms which occurred during service or during an applicable presumptive period for a disease.”

Regarding the suggested additions to paragraphs (d)(1) and (2), we note that the Savage court summarized the continuity provision of 38 CFR 3.303(b) as follows:

In sum, then, the rule here established is as follows * * * If the chronicity provision is not applicable, a claim may still be well grounded or reopened on the basis of § 3.303(b) if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology.

Id.

In initially proposed § 5.243(d)(1) we incorporated the requirement, as stated by the Savage court, “that the condition [was] observed during service or any applicable presumption period” with the phrase “signs or symptoms of an injury or disease during active military service or during an applicable presumptive period.” In initially proposed paragraph (d)(2) we incorporated the requirement, as stated by the court, that “continuity of symptomatology [was] demonstrated thereafter” with the phrase “The signs or symptoms continued from the time of discharge . . . until the present.” In initially proposed paragraph (d)(3) we incorporated the requirement, as stated by the court, “that competent evidence relates the present condition to that symptomatology” with the phrase “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.”

We believe that the language of initially proposed § 5.243(d) accurately restates the intent of current § 3.303(b) as summarized by the Savage court. As the court stated, the keys to the continuity doctrine are that “the condition is observed [through signs or symptoms] during service or any applicable presumption period, continuity of symptomatology [i.e. signs or symptoms] is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology.” Savage, 10 Vet. App. at 498. Following the commenter's suggestion of inserting “injury or disease” would introduce a new element to the doctrine which is not found in § 3.303(b) nor the court cases interpreting that paragraph. Moreover, it would risk confusing readers by blurring the line between the chronicity doctrine and the continuity doctrine. For these reasons, we propose to make no change based on this comment.

Since we published AM07, “Service-Connected and Other Disability Compensation” 75 FR 53744 (Sept. 1, 2010), VA has determined that initially proposed § 5.243 did not accurately restate current § 3.303(b) in the following respect. Section 5.243 would have made “continuity of symptomatology” a separate method of showing service connection distinct from the “chronicity” method set forth in § 3.303(b). In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the U.S. Court of Appeals for the Federal Circuit explained the correct interpretation of these § 3.303(b) provisions. The Court held that continuity of symptomatology Start Printed Page 71102is actually a means of proving the existence of a chronic disease during military service or an applicable presumptive period. We now propose to correct the error contained in the NPRM by revising the provisions of initially proposed § 5.243(d), which we are moving into paragraph (c).

In addition to misstating the role of continuity of symptomatology, we erroneously stated in initially proposed § 5.243 that the term “chronic disease” included other diseases besides those listed in current § 3.309(a). The Walker court clarified that the term “chronic disease”, as used in § 3.303(b), means only a disease listed in § 3.309(a) and no others. Id. at 1338. We propose to clarify this point in § 5.243(c)(2).

Lastly, we note that initially proposed paragraph (d)(2), which stated, “The signs or symptoms continued from the time of discharge or release from active military service until the present”, omitted a presumptive period. To correct this omission, we propose to insert “or from the end of an applicable presumptive period for a disease” in § 5.243.

In AM07, we stated:

VA's long-standing practice is to apply the principles of chronicity and continuity to residuals of injury. This practice provides a fair and efficient means to determine service connection in certain cases, and it is logical to apply these principles to injuries as well as to diseases. Therefore, proposed § 5.243(c)(1) would also apply to an injury incurred or aggravated in service where the current disability is due to “the chronic residuals of the same injury.”

The court rejected the argument that § 3.303(b) applies to injuries as well as to chronic diseases, stating, “We thus reject Walker's broader argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases.” Id. The court also noted that, “The Secretary is free to amend § 3.309(a) if he determines that chronic diseases beyond those currently listed should benefit from the application of § 3.303(b),” and noted that, “the Secretary is currently considering a substantial revision of his regulations concerning service connection for disability compensation”, referring to VA's Regulation Rewrite Project. Id.

As stated above in this preamble, our Veterans Benefits Administration's Transformation Plan will use improved technology and work methods to process disability claims more efficiently. VA has determined that significantly revising the substantive content of our service connection regulations at this time might interfere with this transformation. Moreover, further study is needed to determine the potential impact of such changes, after which VA may conduct a separate rulemaking for this purpose. We therefore propose not to include injuries in § 5.243(c).

§ 5.244 Presumption of Sound Condition on Entry Into Military Service

Initially proposed § 5.244(c)(2) stated, “The presumption of sound condition is rebuttable even if an entry medical examination shows that the examiner tested specifically for a certain injury or disease and did not find that injury or disease, if other evidence of record is sufficient to overcome the presumption.”

One commenter urged that VA clarify paragraph (c)(2) by revising it to read, “The presumption of sound condition is rebuttable, in accordance with subsection (d)(1), below, even if an entry medical examination shows that the examiner tested specifically for a certain injury or disease and did not find that injury or disease, provided other evidence of record is sufficient to overcome the presumption.” The commenter asserted that this revision is needed to ensure the paragraph complies with Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004).

As we stated in the preamble to AM07, we added paragraph (c)(2), which has no part 3 counterpart, to incorporate the Kent holding into VA regulations. The commenter offers no explanation of how initially proposed paragraph (c)(2) is inconsistent with Kent nor how it is unclear in any way. Furthermore, the clear and unmistakable evidence standard of paragraph already applies to rebuttal of the presumption of service connection. We therefore make no change based on this comment.

We propose to exclude initially proposed § 5.244(b) because it is contrary to judicial interpretation of 38 U.S.C. 1111. Smith v. Shinseki, 24 Vet. App. 40 (2010); Crowe v. Brown, 7 Vet. App. 238 (1994). Proposed § 5.244, the part 5 counterpart of 38 CFR 3.304(b), would implement 38 U.S.C. 1111, the presumption of sound condition. We initially proposed paragraph (b), which has no part 3 counterpart, to “clarify that the presumption of sound condition attaches even if the military service department did not conduct an entry medical examination, or if there is no record of an entry examination.” 75 FR 53744, 53750 (Sep. 1, 2010). We explained that “if there was no entry medical examination, then there could be no `defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment' that would serve to prevent the presumption from arising.” Id.

Initially proposed at 75 FR 53764, paragraph (b) described a report of entry examination not a condition for application of the presumption as a presumption of sound condition applies even if:

• The veteran did not have a medical examination for entry into active military service; or
• There is no record of the examination.

In drafting paragraph (b), we overlooked precedent decisions of the U.S. Court of Appeals for Veterans Claims (CAVC) that held that 38 U.S.C. 1111 requires an entry examination for the presumption to apply. In Smith, the court stated that section 1111 “provides that the presumption applies when a veteran has been `examined, accepted, and enrolled for service.'” 24 Vet. App. at 45. The court said, “Plainly, the statute requires that there be an examination prior to entry into the period of service on which the claim is based.” Id. Although Ms. Smith “attained veteran status because she served the required period of active duty service,” id. at 44, the presumption could not apply in her case because there was no evidence of “an examination made contemporaneous with [her] entry” into the periods of active duty for training with the National Guard on which she based her claim. Id. at 46.

The court explained that “[i]n the absence of such an examination, there is no basis from which to determine whether the claimant was in sound condition upon entry into that period of service on which the claim is based.” Id. at 45. The court's reason why the statute precludes applying the presumption when there was no contemporaneous entry examination, or no evidence of one, was essentially the opposite of our reason why the presumption could apply in those situations.

In Crowe, 7 Vet. App. at 245 (1994), the court stated that the presumption of sound condition “attaches only where there has been an induction examination in which the later-complained-of disability was not detected.” Though the court focused on the term “noted” in section 1111, as VA interpreted the term in 38 CFR 3.304(b), the statement is direct and unequivocal.

Neither Smith nor Crowe was a case of a claimant for disability compensation who sought to apply the presumption of sound condition to a period of active duty even though he or she had no entry examination. Neither Smith nor Crowe was a case of a veteran Start Printed Page 71103of active duty who claimed to have had an entry examination, but there is no record of it. Nonetheless, both decisions made unequivocal statements that mean, in essence, if there was no entry examination, the presumption cannot apply. VA must give deference to the court's interpretation of the plain meaning of a statute. See Cypert v. Peake, 22 Vet. App. 307, 311 (2008) (Deference to department's regulation not warranted when its interpretation of a statute is contrary to the plain meaning of the statutory language). We conclude that the court's interpretation of § 1111 in both cases precludes initially proposed § 5.244(b). Consequently, we have removed it from proposed part 5. We also propose to redesignate paragraphs (c) and (d) as (b) and (c), respectively.

In proposed rule AM07, “Service-Connected and Other Disability Compensation,” 75 FR 53744 (Sept. 1, 2010), we in advertently omitted the first five sentences of current § 3.303(c). We now propose to insert these sentences, with only minor stylistic changes to improve readability, as § 5.244(d).

§ 5.245 Service Connection Based on Aggravation of Preservice Injury or Disease

Initially proposed § 5.245(b)(3) stated the usual effects of medical or surgical treatment in service that ameliorates a preexisting injury or disease, such as postoperative scars, or absent or poorly functioning parts or organs, are not an increase in the severity of the underlying condition and they will not be service connected unless the preexisting injury or disease was otherwise aggravated by service.

One commenter urged that VA clarify paragraph (b)(3) by revising it to read:

(3) Effects of medical or surgical treatment. Where medical evidence establishes by clear and convincing evidence that the usual effects of medical or surgical treatment provided to a veteran in service to ameliorate a preexisting injury or disease, such as postoperative scars, or absent or poorly functioning parts or organs, do not constitute an increase in the severity of the underlying condition, they will not be service connected unless the preexisting injury or disease was otherwise aggravated by service (emphasis added).

The commenter asserted that this revision is needed to ensure the paragraph complies with Hines v. Principi, 18 Vet. App. 227, 241-42 (2004).

As a preliminary matter, we note that the Hines case does not impose any requirement that there be “clear and convincing” evidence that the usual effects of treatment provided during service do not constitute an increase in the severity of the underlying condition. Likewise, there is no such requirement in current § 3.306(b)(1), the regulation on which initially proposed § 5.245(b)(3) was based. The commenter offers no explanation of how initially proposed paragraph (b)(3) is inconsistent with Hines or § 3.306(b)(1) nor how it is unclear in any way. We therefore propose to make no change based on this comment.

§ 5.249 Special Service Connection Rules for Combat-Related Injury or Disease

One commenter urged VA to establish a new policy by revising initally proposed § 5.249 to create a presumption based on H.R. 6732, 110th Congress, 2nd session. The commenter suggested that VA include the following language in § 5.249: “(iii) Deployment during service to a theatre of combat operations or hostilities during a period of war.”

The purpose of the Regulation Rewrite Project is to make VA's compensation and pension regulations more logical, claimant-focused, and user-friendly, not to serve as a vehicle for making major changes to VA policies. Thus, the comment is outside the scope of this rulemaking.

§ 5.250 Service Cnnection for Posttraumatic Stress Disorder

One commenter expressed concern that proposed § 5.250 modifies the provision in 38 CFR 3.304(f) that states, “[i]f the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat . . . the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.” The commenter believed that proposed § 5.250 “shifts the burden to the veteran by requiring `credible evidence from any source, other than the claimant's statement, that corroborates the occurrence of the in-service stressor.' ” Another commenter also expressed the same concerns.

Proposed § 5.250 does not increase the burden of proof on veterans claiming service connection for posttraumatic stress disorder (PTSD). The provision quoted by the commenter is merely a restatement of the language in the introductory paragraph of § 3.304(f). The special provision for combat veterans that the commenter referred to is discussed in proposed § 5.250(d). That paragraph refers the reader to the rule for combat veterans contained in § 5.249. As we stated in the NPRM preamble, because § 5.249 applies to all claims, there is no need to repeat it in § 5.250. We therefore propose to make no change based on this comment.

One commenter urged that VA revise initially proposed § 5.250 to eliminate the “credible supporting evidence” requirement for PTSD stressors which would permit a VA fact-finding hearing official to consider a veteran's sworn, personal hearing testimony—if believed by the VA hearing official—as evidence that can establish that the veteran was exposed to an adequate stressor. The commenter asserted, among other things, that this requirement, which is based on an identical, long-standing provision in 38 CFR 3.304(f), is contrary to 38 U.S.C. 5107(b), which states, “The Secretary shall consider all information and lay and medical evidence of record in a case . . .”

We respectfully note that the legal arguments raised by the commenter were addressed and rejected by the U.S. Court of Appeals for the Federal Circuit in Nat'l Org. of Veterans Advocates v. Sec'y of Veterans Affairs, 330 F. 3d 1345 (Fed. Cir. 2003). In NOVA, the court expressly held that § 3.304(f) does not permit VA to deny service connection for PTSD in non-combat veterans without considering all the information and evidence of record in cluding lay evidence. 330 F.3d at 1352. It went on to hold that § 3.304(f) was consistent with 38 U.S.C. 5107. Id. Because the court has upheld this provision, and because we continue to believe that the rationale for the requirement is valid, we propose to make no changes based on this comment.

Initially proposed § 5.250(a)(1), required that in claims for service connection for PTSD, there must be “[m]edical evidence diagnosing PTSD in accordance with § 4.125(a) of this chapter.” 75 FR at 53765. See 38 CFR 4.125(a) (2010). Under § 4.125, all mental disorder diagnoses must conform to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (1994) (“DSM-IV'). Id. One commenter asserted that initially proposed § 5.250(e)(2)(ii) is inconsistent with the DSM-IV's first diagnostic criterion to support a diagnosis of PTSD because the proposed paragraph uses terms that the DSM-IV does not use. Specifically, the commenter noted that under the DSM-IV's first diagnostic criterion, a person who has been exposed to a psychologically traumatic event, like those events described in initially proposed § 5.250(e)(2)(i), VA omitted the term “intense” and instead stated that must have experienced a response to the traumatic event that Start Printed Page 71104“involved intense fear, helplessness, or horror.” However, under initially proposed § 5.250(e)(2)(ii), a veteran's response to a traumatic event must “involve [ ] a psychological or psycho-physiological state of fear, helplessness, or horror.” 75 FR at 53766. The commenter noted that the terms “psychological” and “psycho-physiological” do not appear in the DSM-IV.

We note that § 5.250(e)(2)(ii) was based on a provision in § 3.304(f)(3), which VA added by a separate rulemaking published July 13, 2010 (75 FR 39843) and which has been challenged in the case Paralyzed Veterans of America v. Sec'y of Veterans Affairs, 412 F. App'x 286 (Fed. Cir. 2011). We believe that it would be premature to revise proposed § 5.250(e)(1) until the U.S. Court of Appeals for the Federal Circuit has rendered a decision in the above captioned case, and we therefore propose to make no change based on these comments.

Several commenters suggested that proposed § 5.250(e)(1) be changed to allow the stressor to be confirmed by any examining or treating psychiatrist or psychologist, not just a VA psychiatrist or psychologist. We note this provision is based on a provision in § 3.304(f)(3), which VA added by a separate rulemaking published July 13, 2010 (75 FR 39843) and which has been challenged in the case Paralyzed Veterans of America v. Sec'y of Veterans Affairs, 412 F. App'x 286 (Fed. Cir. 2011). We believe that it would be premature to revise proposed § 5.250(e)(1) until the U.S. Court of Appeals for the Federal Circuit has rendered a decision in the above captioned case, and we therefore propose to make no change based on these comments.

Another commenter urged VA to revise proposed § 5.250 (f) “Special rules for establishing a stressor based on personal assault”, to allow veterans diagnosed with PTSD resulting from Military Sexual Trauma (MST) six months to respond to a VA request for more information about their stressor, rather than the 30 days under current VA practice pursuant to the Veterans Claims Assistance Act (VCAA). The commenter asserted that, “Without more time veterans with PTSD secondary to MST are unlikely to comply.” In support of this assertion, the commenter stated:

Veterans with PTSD as a result of MST often feel guilt or shame. Many of these veterans have not shared with family and friends that they were sexually assaulted in the military. If a veteran receives a VCAA notice asking for additional evidence, such as statements regarding changes in behavior from friends and family, the guilt and shame that they are suffering make it unlikely that the veteran will respond to the 30 day deadline of the VCAA notice. Many of ICLC's clients are in mental health treatment facilities because of the impact of their PTSD secondary to MST. These clients cannot handle day to day functions. Responding within 30 days to a VCAA notice is unrealistic. This is especially true considering that the information the Regional Office requires can be difficult to obtain. Records from rape crisis centers are destroyed after a period of time and it can take as long as nine months to obtain service treatment records from the National Personnel Records Center. We have found that our clients need significant help and time to respond to the VCAA notice.

The commenter also expressed concern that proposed § 5.250(f) does not provide enough detail as to how a veteran will be “advised that evidence from sources other than the veterans service records may constitute credible supporting evidence.” The commenter noted that although the purpose of VA's Regulation Rewrite Project is to make VA regulations more logical, claimant-focused, and user-friendly, simply adopting 38 CFR 3.304(f)(5) “wastes an opportunity to provide more concrete explanation of the type of notice that will be provided to a veteran with PTSD secondary to MST.”

As a preliminary matter, we note that the procedures VA follows for requesting evidence from claimants is explained in proposed § 5.90 (based on current 38 CFR 3.159). These procedures apply to all claims, so it would be redundant to restate them in § 5.250. Regarding the commenter's suggestion that, for military sexual trauma claims, VA expand the time permitted to respond to VA requests for evidence, we note that the commenter is correct that the purpose of the Regulation Rewrite Project is to make VA's compensation and pension regulations more logical, claimant-focused, and user-friendly, not to serve as a vehicle for making major changes to VA policies. Thus, the comment is outside the scope of this rulemaking.

§ 5.251 Current Disabilities for Which VA Cannot Grant Service Connection.

When we initially proposed § 5.251 (see 75 FR 53744, Sept. 1, 2010), we failed to state in the preamble that proposed 5.251(c) would be new. It would incorporate and expand upon 38 CFR 4.127, which states, “Mental retardation and personality disorders are not diseases or injuries for compensation purposes, and, except as provided in § 3.310(a) of this chapter, disability resulting from them may not be service-connected. However, disability resulting from a mental disorder that is superimposed upon mental retardation or a personality disorder may be service-connected.” Proposed § 5.251(c) expands the principle to recognize that the preexistence or coexistence of disabilities for which VA cannot grant service connection does not preclude granting service connection for “superimposed” disabilities that independently meet the criteria for service connection.

B. Presumptions of Service Connection for Certain Disabilities, and Related Matters

In a document published in the Federal Register on July 27, 2004, we proposed to revise VA regulations governing presumptions of service connection for certain disabilities and related matters, to be published in new 38 CFR part 5. See 69 FR 44614. We provided a 60-day comment period that ended September 27, 2004. We received submissions from seven commenters: Disabled American Veterans, Paralyzed Veterans of America, Vietnam Veterans of America, and four members of the general public.

Undesignated Center Heading Before § 5.260

One commenter suggested that the proposed undesignated center heading before § 5.260 is inaccurate. As proposed, it read, “Presumptions of Service Connection for Certain Disabilities, and Related Matters.” The commenter suggested that the word “disabilities” should be replaced by the word “diseases” because the presumption of service connection attaches to the disease rather than the disability and because it conflicts with subsequent regulatory language using the word “disease”.

We agree with the commenter that it is appropriate to add “diseases” to the undesignated center heading; however, we would do so by inserting the word before the word “disabilities”, rather than by replacing that word. The proposed undesignated center heading was imprecise because it was under-inclusive; however, to change the undesignated center heading by replacing “disabilities” with “diseases” would also be under-inclusive because to simply refer in our regulations to “diseases” may not adequately identify to readers all of the medical conditions identified by the authorizing statutes. See, for example, 38 U.S.C. 1112 (titled “Presumptions relating to certain diseases and disabilities”); 38 U.S.C. Start Printed Page 711051112(b)(10) and (14) (providing benefits for a “disorder” and a “syndrome”); 38 U.S.C. 1117 (authorizing compensation for “qualifying chronic disabilit[ies]”); and 38 CFR 3.309(c) (including as presumptively service connectable “diseases”, psychosis, anxiety states, dysthymic disorder, and organic residuals of frostbite, which may not be generally understood by the public as “diseases”). It is important that our regulations clearly explain the various conditions to which a presumption applies, irrespective of whether current medical authorities classify a particular condition as a “disease”, Referring to “diseases, disabilities, and related matters” in our undesignated subheading will provide the most useful information to VA personnel and the public.

Thus, we propose to revise both the undesignated center heading and the regulations herein in accordance with the above discussion. For example, in § 5.261, we refer to “chronic diseases” because that is the term the statute uses and because the list comprises conditions that are commonly understood to be diseases. The sole exception might be a “brain hemorrhage”, but we do not believe that including that condition on the long list of “chronic diseases” will create confusion. On the other hand, in § 5.267(b), we provide a “list [of] diseases or injuries that VA will consider associated with full-body exposure to nitrogen mustard, sulfur mustard, or Lewisite” because that list contains several items that are more commonly understood to be injuries, such as corneal opacities and scar formation.

§ 5.260 General Rules Governing Presumptions of Service Connection

We propose to revise the heading of § 5.260 from “General rules and definitions” to “General rules governing presumptions of service connection.” This title is more precise and more descriptive.

We received two comments regarding § 5.260(a), a new provision that describes the purpose of presumptions of service connection. Both commenters agreed that the description of presumptions and how they operate in § 5.260(a) is accurate. However, both commenters suggested that VA add language to § 5.260(a) to clearly define the term “presumption”.

One commenter suggested supplementing the explanation of how a presumption operates with a legal definition of the term “presumption”, in order to make clear that presumptions are a rule of law that must be followed unless the presumption is sufficiently rebutted. The commenter suggested two definitions. The first is from Manning v. John Hancock Mut. Life Ins. Co., 100 U.S. 693, 697-98 (1879), which held that the existence of a fact may be presumed from the existence of other proven facts, so long as the presumed fact has an immediate connection or relation with the proven facts. The second definition suggested by the commenter is from “Black's Law Dictionary”, 1067 (5th ed. 1979), stating that a presumption is “a rule of law, statutory or judicial, by which finding of a basic fact gives rise to existence of presumed fact, until presumption is rebutted.”

After review, we propose not to define the term “presumption” in § 5.260(a). While both legal definitions of the term “presumption” suggested by the commenter are correct, we do not believe that regulation readers will be best served by a legal definition of the term “presumption” in § 5.260(a). Since the legal definition of a presumption is a clear concept in the law, it is not necessary to include such a definition to aid the courts in interpreting the term “presumption”. In addition, a legal definition of “presumption” in proposed § 5.260(a) would not well serve readers who may not be familiar with legal jargon in such a definition. With respect to the commenter's suggestion that VA must clarify that a presumption is a rule of law, we note that the mere existence of presumptions in both the statutes and in these regulations makes clear that these presumptions are in fact laws. With respect to the legal effect of a presumption, we have adequately explained the effect of the presumptions of service connection in proposed § 5.260(a).

Another commenter suggested that VA adopt the final sentence of § 3.303(d) as the first sentence of § 5.260(a), as it is a clear and succinct statement of the purpose of presumptions. The final sentence of § 3.303(d) reads: “The presumptive provisions of the statute and [VA] regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid.”

We agree in part, and propose to add the following as the first sentence of § 5.260(a): “Presumptions of service connection apply when the evidence would not warrant service connection without their aid.” We do not mean to include the characterization of the presumptions as liberalizations because such a characterization is not helpful. Although it is true that presumptions of service connection allow veterans who might not be able to establish direct service connection to have their disease service connected, it is misleading to refer to them as liberalizations. The effect of a liberalizing law is provided for in § 5.152, and we do not want § 5.260(a) to confuse that section with the general law governing presumptions of service connection.

In addition, we determined that in initially proposed § 5.260, we failed to include the second sentence of 38 CFR 3.303(d), which states, “Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection.” We propose to restate this provision more clearly by adding this sentence at the end of § 5.260(a), “VA will not use the existence of a presumptive period to deny service connection for a presumptive disease diagnosed after the presumptive period if direct evidence shows it was incurred or aggravated during service.”

After reviewing initially proposed § 5.260(b)(1), we propose to remove the parentheses from around the last sentence of the paragraph because they are unnecessary.

Initially proposed § 5.260(b)(2) discussed “competent lay evidence”, “lay evidence”, and “medical evidence”. In § 5.1 we have defined “competent lay evidence” and “competent expert evidence” (which includes medical evidence). Our intent in initially proposed paragraph (b)(2) was to refer to competent evidence. We therefore propose to insert the word competent before lay and medical throughout this paragraph. To ensure consistency we propose to make these same changes throughout part 5.

We propose to make a minor technical change to the language of § 5.260(c). The introductory text to § 5.260(c), as initially proposed, stated: “VA cannot grant service connection under this section when the presumption has been rebutted by the evidence of record.” 69 FR 44624, July 27, 2004. We propose to change the words “this section” in this sentence to “§§ 5.261, 5.262, 5.264 through 5.268, 5.270 and 5.271”.

In addition, we propose to change initially proposed § 5.260(c) based on comments objecting to our decision not to use the term “affirmative evidence” in the description of what kind of evidence may be used to rebut a presumption of service connection for a disease. Specifically, in § 5.260(c)(2) we stated that “[a]ny evidence competent to indicate the time a disease existed or started may rebut a presumption of service connection that would otherwise Start Printed Page 71106apply.” 69 FR 44614, July 27, 2004. Because 38 U.S.C. 1113(a) specifically requires “affirmative evidence” to rebut the “disease presumptions” set forth in chapter 11, title 38, United States Code, we propose to revise initially proposed § 5.260(c) to require affirmative evidence. In addition, we agree with several commenters who defined affirmative evidence as evidence that declares a fact positively and establishes that a particular disease does not warrant the award of presumptive service-connection. We propose to revise paragraph (c)(2) to define “affirmative evidence” as “evidence that supports the existence of a particular fact,” and to further state that affirmative evidence “does not mean the mere absence of evidence.”

However, some commenters asserted that under no circumstances may VA rebut a presumption based on the absence of evidence. A commenter stated that a medical opinion founded on the absence of symptoms is not “affirmative evidence”. Similarly, another commenter stated that a medical opinion used to rebut the presumption of service connection for a chronic disease may not be based on the length of time between service and clinical manifestation of the disease, because Congress chose a specific period for the presumption of service connection to apply for each disease. The commenter noted that in 38 U.S.C. 1112(a)(2), Congress provided for a presumptive period of “one year from the date of separation from such service, or at a time when standard or accepted treatises indicate that the incubation period thereof commenced during such service.” According to the commenter, because Congress did not provide this alternative for chronic diseases, pure medical judgments cannot override the presumptive period allotted by Congress.

We disagree with these comments in the following respect: To rebut a presumption that a presumptive disease was incurred during service or during the post-service presumptive period, affirmative evidence would have to show that the disease did not exist at such time. A medical opinion that establishes the date of onset of the disease determined by the use of fact-based medical evidence may serve as “affirmative evidence” regarding the onset or existence of that disease, even if the mere absence of symptoms or other evidence of disease is not. In other words, it is the medical professional's qualified opinion that serves as evidence to be considered by VA's adjudicator, not the lack of evidence in the claims file. Hence, we propose to revise § 5.260(c)(2) to state that “the absence of evidence may be a basis for affirmative evidence. For example, a medical professional may conclude that a disease or disability existed or started at a particular time based on an absence of evidence of signs or symptoms of the condition before that time.”

One commenter objected to the statement in proposed § 5.260(c) which states that once a presumption has been rebutted, VA can no longer grant presumptive service connection. The commenter believes the statement is not true in all cases, and suggests that if the veteran provides medical or lay evidence, it would be possible for the veteran to establish service connection on a presumptive basis. As an example, the commenter proposes a situation where VA reviews available medical records and finds the evidence rebuts the presumption of service connection because the veteran has not received a credible diagnosis of the disease for which he or she is claiming presumptive service connection. The commenter proposes that if the veteran later obtains a credible medical opinion diagnosing the veteran with the presumptive disease, the veteran should be entitled to presumptive service connection.

We propose not to make any changes based on this comment. In the hypothetical situation posed by the commenter, the absence of a credible diagnosis of the claimed disease does not serve to rebut the presumption of service connection. In that situation, the presumption never arose because the existence of the claimed condition is one of the underlying facts necessary to give rise to the presumption. If the veteran subsequently presents evidence sufficient to prove that he or she did in fact suffer from a disease for which VA may grant presumptive service connection, then the presumption will apply.

In any event, no scenario allows VA to grant presumptive service connection after the evidence rebuts the presumption. The commenter is correct that if VA rebuts the presumption of service connection for a disease, the veteran is entitled to bring forth evidence supporting service connection. However, service connection established in this manner is granted under 38 U.S.C. 1110 (generally referred to as “direct” service connection) and is not presumptive service connection. If the presumption of service connection is rebutted, a veteran may still establish service connection by filing evidence showing the onset of the disease in service, or by any other method provided by these regulations.

In NPRM AM07, we changed “symptomatology” to “signs or symptoms” consistent with current medical terminology. For consistency, we propose to do the same in § 5.260 and throughout part 5. In paragraph (b)(1), we propose to change “symptomatology” to “signs or symptoms”. In (b)(2), we propose to replace the phrase “physical findings and symptomatology” with “signs or symptoms”. The term “signs” is equivalent to “physical findings”. Moreover, we intend this rule to include mental as well as physical signs.

In initially proposed paragraph (c)(2), we stated, “For example, a medical professional may conclude that a disease or disability existed or started at a particular time based on an absence of evidence of symptoms of the condition.” We now propose to insert “signs or” before “symptoms”. We also propose to insert “before that time” at the end of the sentence to clarify when an absence of signs or symptoms is relevant.

In initially proposed § 5.260(a) and (c) we omitted reference to § 5.263, “Presumption of Service Connection for Non-Hodgkin's Lymphoma Based on Service in Vietnam”. In reviewing the presumption regulations to respond to comments, we have noted that there is no reason to exclude § 5.263 from these provisions. We recognize that 38 CFR 3.313 contains no rebuttal provision but we do not believe that an irrebuttable presumption would be consistent with title 38 to the extent it would authorize benefits for a disease shown by clear evidence to be unrelated to service or to be attributable to the veteran's willful misconduct. We therefore propose to include § 5.263 in paragraphs (a) and (c).

§ 5.261 Certain Chronic Diseases VA Presumes Are Service Connected

In reviewing the initially proposed regulation, we noted that we included the phrase, “from a qualifying period of service”, in § 5.261(a)(1), but not in § 5.261(a)(2). To ensure that readers are aware that the presumptions apply only after a period of qualifying service, we propose to revise § 5.261(a)(2) to include the phrase, “after a qualifying period of service”. In § 5.261(a)(1), we propose to change the term, “a year” to “1 year” to ensure consistency throughout our regulations.

In initially proposed § 5.261(c), based on current §§ 3.307(a)(2) and 3.308(a), we stated, “In claims based on service ending before December 7, 1941, for purpose of determining whether a chronic disease manifested within a presumptive period under this section, Start Printed Page 71107the date of separation from wartime service will be the date of discharge or release during a war period, or if service continued after the war, the end of the war period.” We have determined that this paragraph is erroneous because veterans whose service ended before that date get no presumption of service connection for chronic disease. Therefore, there can be no “date of separation from wartime service” for a pre-December 7, 1941 veteran “for the purpose of determining whether a chronic disease manifested within a presumptive period.” We therefore propose to remove paragraph (c) and redesignate the remaining paragraphs of § 5.261 accordingly.

One commenter suggested that VA include a statement clarifying that the chronic diseases listed in initially proposed § 5.261(d) (now (c)) are the only conditions that will be considered chronic. Currently, § 3.307(a) states that no condition other than one listed in § 3.309(a) will be considered chronic. In addition, 38 U.S.C. 1101(3) contains a list of chronic diseases and includes “such other chronic diseases as the Secretary may add to this list”, which strongly implies that the list should be considered exclusive absent action by the Secretary. The commenter believes that stating that the list of chronic diseases in § 5.261(d) is exclusive will prevent any misconception that VA has the ability to establish presumptive service connection for any disease which appears no later than 1 year after leaving service. The commenter concluded that nothing prevents VA from stating the list of chronic conditions in § 5.261(d) is exclusive.

We agree and propose to include the sentence, “Only conditions listed in this section are chronic for purposes of this section.” The commenter is correct that only the conditions listed in § 5.261(d) will be considered chronic for purposes of presumptive service connection under § 5.261.

One commenter suggested that for clarity, § 5.261(d) should use the words “acute and transitory” instead of simply using “acute”. The commenter states that the “acute and transitory” language is “consistent with long-standing VA parlance regarding how it adjudicates claims based on chronic conditions.” Although VA has previously used the term “acute and transitory” in decisions, it is not consistent with current VA terminology used in adjudicating claims based on chronic conditions. The word “transitory” is not found in any regulation in either part 3 or part 4 of title 38 CFR. Nor is it found in “Dorland's Illustrated Med. Dictionary” (31st ed. 2007). Moreover, “acute” and “transitory” both suggest brief duration, so that “transitory” does not add to the meaning of the rule. For these reasons, we propose to make no changes based on this comment.

Initially proposed § 5.261(d) is based on § 3.307(b) and contains an exclusive list of the diseases VA considers chronic for purpose of presumptive service connection. One commenter stated that this section would “authorize adjudicators to determine that a chronic disease which has manifested to a compensable degree and which is under consideration for service connection is not chronic.” The commenter stated that VA has no lawful authority to make an independent factual determination contrary to the command of 38 U.S.C. 1101(3), which lists chronic diseases for purposes of disability compensation.

However, 38 U.S.C. 1101(3) only defines what are considered to be chronic diseases; it does not contain any requirement that service connection be granted for the listed diseases. The requirement to grant presumptive service connection for chronic diseases is found in 38 U.S.C. 1112(a), which states that a chronic disease will be considered to have been incurred in or aggravated by such service. The authority to rebut a presumption of service connection is found at 38 U.S.C. 1113(a), which states that “where there is affirmative evidence to the contrary, or evidence to establish that intercurrent injury or disease . . . has been suffered . . . service-connection . . . will not be in order.” The wording in initially proposed § 5.261(c) is a restatement of the previous wording used in § 3.307(b), which states, “Unless the clinical picture is clear otherwise, consideration will be given as to whether an acute condition is an exacerbation of a chronic disease.” As initially proposed, § 5.261(d) restated this principle as, “Unless the clinical picture clearly shows the condition was only acute, VA will consider whether an acute condition was an exacerbation of a chronic disease.” Based on the comment, we understand that the proposed rule could be misunderstood to authorize VA to treat a chronic condition as if it were acute. Neither the statute nor the current regulation authorize such treatment, and we did not propose to create such authorization in § 5.261(d). Hence, we propose to revise the sentence so that it more closely follows the language of the current regulation.

We received four comments stating that our proposed rule regarding the presumption of service connection for aggravation of certain chronic diseases and diseases associated with exposure to certain herbicide agents in proposed §§ 5.261(d) and 5.262(e) is contrary to the holding of the U.S. Court of Appeals for the Federal Circuit in Splane v. West, 216 F.3d 1058 (Fed. Cir. 2000), and otherwise not in accordance with 38 U.S.C. 1112(a) and 1116(a). The comments asserted that the statutes do not limit the degree to which a pre-existing condition must be disabling prior to entry in order for the presumption of aggravation to apply; that the statute does not provide that a disease must “first” become manifest during the presumptive period; and that 38 U.S.C. 1112(a) and 1116(a) should be interpreted to provide a presumption of aggravation of the listed diseases if the degree of disability increases by any degree during the applicable presumptive period (for example, from 20 percent disabling to 30 percent disabling).

Additionally, a commenter suggested that the treatment of preexisting conditions under 38 U.S.C. 1112(a) and 1116(a) conflicts with the treatment of preexisting conditions under 38 U.S.C. 1153, the general presumption of aggravation. Commenters asserted that VA could not arbitrarily apply different rules to veterans who had preexisting disabilities that were aggravated by service than to veterans who had no preexisting disabilities. One commenter suggested that the only difference is the “formality” that the underlying pathology had its inception prior to service rather than during service.

By way of background, 38 U.S.C. 1153 provides a presumption that “[a] preexisting injury or disease will be considered to have been aggravated by active military . . . service, where there is an increase in disability during such service.” The presumptions at issue in proposed §§ 5.261 and 5.262, however, are based on 38 U.S.C. 1112(a) and 1116(a), which provide a presumption for conditions that manifest to a degree of disability of 10 percent or more during a specified period of time after service.

In the Splane case, the Federal Circuit examined whether the post-service presumptive period in 38 U.S.C. 1112(a) could cover a preexisting condition. The Federal Circuit held that the words “or aggravated by” in paragraph (a) required application of the presumption of aggravation of a chronic disease to a veteran whose chronic disease existed but was not compensable prior to service, regardless of VA's “not altogether unpersuasive” argument that those words were a vestige of an earlier provision that was long ago rendered obsolete. Splane, 216 F.3d at 1069. The court found it “unreasonable to assume Start Printed Page 71108that Congress did not anticipate the possibility that a veteran, who had nonsymptomatic M[ultiple] S[clerosis] before service, might be exposed to such aggravating conditions during service that he would become disabled to a compensable degree after service.” Id.

Our proposed part 5 regulations specifically accounted for this possibility by presuming that a chronic disease or a disease associated with herbicide exposure is presumed to have been aggravated during service if the disease manifests to a compensable degree within the applicable presumptive period. Proposed § 5.261(d) stated that VA cannot presume service connection when the evidence shows that the disease existed prior to military service to a degree of 10 percent or more disabling.

Section 5.262(e) used nearly identical language. We explained our rationale in the NPRM, as follows:

The Federal Circuit held that the words “or aggravated by” indicate that Congress meant section 1112(a) to apply to those situations where multiple sclerosis predated entry into the service and became disabling to a compensable degree within the presumptive period following service. The “or aggravated by” language also appears in 38 U.S.C. 1116(a)(1)(B), which provides the authority for the presumptions based on herbicide exposure. Therefore, we propose to add language to clarify that presumptions may apply to a listed disease that preexisted service but first became manifest to a degree of 10 percent or more within the presumptive period following service.

69 FR 44620, July 27, 2004.

Limiting §§ 5.261 and 5.262 presumptions to situations where the condition was not manifest to a degree of 10 percent or more disabling before service is not arbitrary, unfair, or beyond VA's statutory authority. Under 38 U.S.C. 1112(a)(1), VA must presume service connected “a chronic disease becoming manifest to a degree of 10 percent or more disabling within one year from the date of separation from . . . service,” and 38 U.S.C. 1116(a) similarly creates a presumption based on manifestation of a disease to a degree of 10 percent or more disabling within the presumptive period. Use of a 10 percent threshold would not make sense if a preexisting disease manifest to a degree of 10 percent or more disabling prior to service could trigger the presumption because the disease would already have reached the threshold before service. If Congress had intended to also presume aggravation for a veteran who already had a disease manifest to a compensable degree prior to service, the law could have been written to presume service connection for a disease that “worsens by 10 percent or more,” rather than one that “becom[es] manifest” to such a degree. Finally, we note that most of the diseases that are considered chronic are diseases that, had they been symptomatic prior to service, would have likely rendered the person ineligible for service. In fact, several of the conditions are so disabling that their symptoms cannot even be rated as merely 10 percent disabling. For example, the first signs of multiple sclerosis are rated at 30 percent under 38 CFR 4.124a, Diagnostic Code 8018. It is unlikely that VA will receive claims from persons who were compensably disabled before service, and our experience has not shown this to be a problem under the current regulations.

Lastly, we note that the Splane court did not address the type of case described by the commenters: where a disability was already manifest to a degree of disability of 10 percent or more prior to service. The commenters urge VA to adopt an interpretation of 38 U.S.C. 1112 far beyond that which the Splane court provided. For the reasons stated above, we propose to make no changes based on these comments.

One commenter also had a comment related to the following sentence in the NPRM:

We note that if the condition preexisted service to a degree of 10 percent, for example, and after service the condition was 20 percent disabling, the veteran may be able to establish service connection using the presumption of aggravation in 38 U.S.C. 1153.

69 FR 44620, July 27, 2004.

The commenter noted that 38 U.S.C. 1153 only applies to increases in disability during service. Therefore, this statement would not be correct with respect to increases in disability within the presumptive period. The commenter is correct that 38 U.S.C. 1153 only applies to aggravation during service. We clarify this statement by noting that when we said “after service”, we meant immediately after service.

The commenter stated that in some cases, VA would presume that a disease in a state of remission or inactivity was disabling to a degree of 10 percent at entry, while a draft rule for service connection indicates that VA would deny service connection for lack of current disability if a disease was in remission. The commenter objects to this dual standard for cases when diseases are in remission.

We propose to make no changes based on this comment. The provision the commenter discussed from the draft rule for service connection does not address this situation since that concerns direct service connection and not establishment of service connection through the use of the presumptions. Additionally, if there is no current disability, service connection cannot be established. Also, Congress in 38 U.S.C. 1112, mandated that the disease must manifest to a degree of 10 percent or more disabling before VA may presume service connection. A disease that is in remission and is not manifest to a degree of 10 percent or more disabling may not be service connected under the presumptions of service connection provisions.

§ 5.262 Presumption of Service Connection for Diseases Associated With Exposure to Certain Herbicide Agents

In our initially proposed regulations on presumptions of service connection, we changed the wording found in §§ 3.307(a) and 3.317(c)(3), “. . . [certain diseases] will be considered to have been incurred in or aggravated by service . . .” to “VA will presume service connection [for certain diseases] . . .” We proposed this language in several part 5 regulations: §§ 5.262(a)(2), 5.264(b) and (c), 5.265(a) and (d), 5.267(a), and 5.268(b). This attempt to use simpler language resulted in a technical error because under its authorizing statutes, VA service connects disability or death, not injury or disease per se. We therefore propose to correct these sections to reflect that the diseases listed will be considered to have been incurred in or aggravated by service.

We received four comments regarding the proposed definition of “Service in the Republic of Vietnam” in § 5.262(a)(1) for purposes of the presumption of service connection for diseases associated with exposure to certain herbicide agents. As proposed, § 5.262(a)(1) stated:

For purposes of this section, “Service in the Republic of Vietnam” does not include active military service in the waters offshore and service in other locations, but does include any such service in which the veteran had duty in or visited in the Republic of Vietnam, which includes service on the inland waterways.

69 FR 44626, July 27, 2004.

Three commenters objected to the exclusion of service in the waters offshore Vietnam in the definition of “Service in the Republic of Vietnam” for purposes of § 5.262. One commenter stated that when Congress refers to a country by its name in a statute, it is referring to the entire country, including the entire area over which a country has Start Printed Page 71109sovereignty. This would, under the 1982 United Nations Convention on the Law of the Sea, 21 I.L.M. 1261, include the territorial sea which extends up to twelve miles beyond the land territory of Vietnam. All three commenters support this proposition with an example of the service required to receive the Vietnam Service Medal. Executive Order 11231, July 8, 1965, provides that the “Vietnam Service Medal shall be awarded to members of the armed forces who serve in Vietnam or contiguous waters or air space”. The commenters believe that the definition of “Service in the Republic of Vietnam” provided in § 5.262(a)(1) is contrary to the ordinary and common meaning of the phrase. Therefore, the commenters believe there is no reason to believe that Congress intended to exclude the territorial sea when it drafted 38 U.S.C. 1116.

We propose to make no changes based on these comments. These comments are adequately addressed by Haas v. Peake, 425 F.3d 1168 (Fed. Cir. 2008); the notice proposing to rescind, and the notice actually rescinding, the VA manual provision cited in Haas, 72 FR 66218, Nov. 27, 2007 and 73 FR 20363-65, Apr. 15, 2008; and the proposed revision to 38 CFR 3.307(a)(6)(iii), 73 FR 20566-71, Apr. 16, 2008 (withdrawn by 74 FR 48689, Sept. 24, 2009). We incorporate by reference the rationales set forth therein, and do not reiterate them here.

However, we do propose to revise initially proposed § 5.262(a)(1) so that it more clearly conveys the requirement that the veteran have served “on land, or on an inland waterway, in the Republic of Vietnam.”

On May 7, 2009, VA published Final Rule RIN 2900-AN01, “Presumptive Service Connection for Disease Associated With Exposure to Certain Herbicide Agents: AL Amyloidosis”, which stated the Secretary's determination of “a positive association between exposure to herbicide agents and the occurrence of AL amyloidosis” and added that disease to 38 CFR 3.309(e). 74 FR 21258. Therefore, we now propose to include AL amyloidosis in § 5.262(e) in accordance with the Secretary's finding.

On August 31, 2010, VA published RIN 2900-AN54, “Diseases Associated With Exposure to Certain Herbicide Agents (Hairy Cell Leukemia and Other Chronic B-Cell Leukemias, Parkinson's Disease and Ischemic Heart Disease)” which stated the Secretary's determination of “a positive association between exposure to herbicide agents and the occurrence of those diseases” and added those diseases to 38 CFR 3.309(e). 75 FR 53202. Therefore, we now propose to include them in § 5.262(e) in accordance with the Secretary's finding.

We propose to change the term “acute and subacute peripheral neuropathy” in § 5.262 and instead use the term “early-onset peripheral neuropathy”. Additionally, we have removed note \1\ which provided that peripheral neuropathy must resolve within 2 years of onset. This conforms to changes made in part 3. 78 FR 54763, Sept. 6, 2013.

§ 5.263 Presumption of Service Connection for Non-Hodgkin's Lymphoma Based on Service in Vietnam

One commenter believed that proposed § 5.263, which was based on § 3.313 with minor changes, was unnecessary. Proposed § 5.263 provides for presumptive service connection for non-Hodgkin's lymphoma based on service in Vietnam. The commenter asserted that anyone eligible for presumptive service connection under § 5.263 would also be eligible for presumptive service connection under § 5.262 and it is therefore unnecessary to have § 5.263.

We propose to make no changes based on this comment. We agree with the commenter that many of the veterans entitled to presumptive service connection under § 5.263 may also be entitled to presumptive service connection under § 5.262. However, there are differences between §§ 5.262 and 5.263 that require two separate rules. Therefore, we propose to retain § 5.263 in our final rule. One difference is in the definition of what constitutes “service in Vietnam”. See VA General Counsel's Opinion, VAOPGCPREC 27-97, 62 FR 63604 (Dec. 1, 1997). Specifically, the definition of “service in Vietnam” in § 5.263 includes service in the waters offshore Vietnam, whereas the definition in § 5.262 specifically excludes such service from the definition of “service in the Republic of Vietnam”. Another difference is that § 5.262 provides for determining presumptive exposure to herbicides due to service in the Republic of Vietnam while § 5.263 provides for service connection for non-Hodgkin's lymphoma without regard to possible exposure to herbicides in the Republic of Vietnam.

§ 5.264 Diseases VA Presumes Are Service Connected in a Former Prisoner of War

On June 30, 2006, VA published in the Federal Register an addition to § 5.264, “Diseases VA presumes are service connected in former prisoners of war”, adding atherosclerotic heart disease or hypertensive vascular disease (including hypertensive heart disease) and their complications (including myocardial infarction, congestive heart failure, and arrhythmia) and stroke and its complications to the diseases VA presumes are service connected in former prisoners of war. 71 FR 37793, June 30, 2006. No comments were received concerning this addition. Proposed § 5.264 is revised from the version published in the NPRM, by adding these conditions to the list of diseases. 69 FR 44614, July 27, 2004.

Section 106 of Public Law 110-389, 122 Stat. 4145, 4149 (2008), amended 38 U.S.C. 1112(b)(2) by adding a new subparagraph (F) that creates a presumption of service connection for osteoporosis that becomes manifest to a degree of 10 percent for prisoners of war (POWs) if the Secretary determines that the veteran has posttraumatic stress disorder (PTSD). On August 28, 2009, VA published an amendment in the Federal Register to § 3.309(c), applying Public Law 110-389. 74 FR 44288. This amendment also implements a decision by the Secretary to establish a presumption of service connection for osteoporosis that becomes manifest to a degree of 10 percent for POWs if the veteran was interned for more than 30 days. This presumption is based on scientific studies. These changes have been incorporated into proposed § 5.264(b) and (c).

§ 5.265 Tropical Diseases VA Presumes Are Service Connected

In initially proposed § 5.265(d), we stated, “For any disease service connected under this section, VA will also service connect the resultant disorders or diseases originating because of therapy administered in connection with such a disease or as a preventative measure against such a disease.” We have determined that this sentence is redundant of the basic rule on secondary service connection contained in § 5.246, “Secondary service connection—disabilities that are due to or the result of service-connected injury or disease.” Therefore, we propose to remove this sentence from § 5.265(d).

One commenter suggested a minor clarifying change to § 5.265(e). The commenter suggested revising the sentence stating that “Residence during the applicable presumptive period where the particular disease is endemic may also be considered evidence to rebut the presumption”, to refer to “post-service” residence. The commenter recognized that this addition would be redundant (because the presumptive period is post-service), but Start Printed Page 71110opined that it would nevertheless make the rule clearer for the average lay person. We agree that, while redundant, this minor change could be beneficial to readers. Therefore, we propose to change § 5.265(e) to refer to “[p]ost-service residence”.

One commenter objected to the requirement in § 5.265(f) that would require a tropical disease to manifest to a degree of 10 percent or more disabling within the presumptive period in order for the disease to be presumptively service connected. The commenter noted that the statutory authorization for this presumption, 38 U.S.C. 1133, provides no minimum degree of manifestation for the presumption of service connection to apply for veterans with peacetime service before January 1, 1947. The commenter is correct. We propose to revise § 5.265(f) so that it no longer contains the 10 percent requirement.

Moreover, we discovered that we mistakenly used the term “existed”, rather than “manifested”, in initially proposed § 5.265(f). This language was taken from 38 CFR 3.308(b), but it does not appear in any other presumption regulation in part 5. Therefore, in order to ensure consistency with the other presumption regulations in part 5, we propose to replace “existed” with “manifested”.

We also propose to change the term “accepted medical treatises” to “accepted medical literature” throughout this section because “treatise” is a specific type of scholarly literature, specifically “a systematic exposition or argument in writing including methodical discussion of the facts and principles involved and conclusions reached.” “Merriam-Webster's Collegiate Dictionary” 1258 (10th ed. 1998). “Accepted medical literature” is a broader class of literature, sufficiently authoritative and more accessible to claimants than are “treatises”. We propose to make the same change in § 5.266, Disability compensation for certain qualifying chronic disabilities.

§ 5.266 Disability Compensation for Certain Qualifying Chronic Disabilities

We propose to reorganize and make technical corrections to initially proposed § 5.266. We would reorganize this section as follows. Initially proposed paragraph (a) stated that VA will compensate veterans for a qualifying chronic disability and defined that term. Initially proposed paragraphs (b) and (c) defined undiagnosed illness and medically unexplained chronic multisymptom illness, respectively. Paragraph (f) would contain the general definitions that apply to all types of qualifying chronic disabilities.

We propose to move initially proposed paragraph (a)(1)(ii), which stated, “By history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.” This paragraph would apply only to undiagnosed illnesses, not to other qualifying chronic disabilities, so we propose to move it into new paragraph (b), which would describe undiagnosed illnesses.

For purposes of accuracy, we propose to change the title of the regulation from “Compensation for certain disabilities due to undiagnosed illnesses” to “Disability compensation for certain qualifying chronic disabilities”.

Since publication of the AL70 NPRM, VA published a Final Rule VA that made technical revisions to 38 CFR 3.317 to clarify that adjudicators have the authority to determine whether diseases in addition to the three listed in 38 U.S.C. 1117 qualify as medically unexplained chronic multisymptom illnesses in addition to the three that are listed in 38 U.S.C. 1117. 75 FR 61995, Oct. 7, 2010. VA subsequently published a final rule that replaced “irritable bowel syndrome” with “functional gastrointestinal disorders”. 76 FR 41696, Jul. 15, 2011. We propose to incorporate these regulatory amendments into § 5.266.

Current 38 CFR 3.317(c) describes situations in which the presumptions in that section will be considered rebutted. We note that § 3.307(d) (the basis for initially proposed § 5.260(c)) already contains this same rebuttal information as it applies to the various presumptions listed in § 3.309, but not to § 3.317. We now propose to expand the scope of § 5.260(c) to include § 5.266 and 5.271. To avoid duplication, we propose to exclude the duplicate provisions from § 5.266 and 5.271.

§ 5.267 Presumption of Service Connection for Conditions Associated With Full-Body Exposure to Nitrogen Mustard, Sulfur Mustard, or Lewisite

One commenter asserted that the proposed rule would have changed the current rule, § 3.316, which the commenter said requires direct service connection for exposure to mustard gas and Lewisite, to a rule that would establish presumptive service connection based on such exposure. The commenter questioned whether VA has the authority to create a new class of presumptive conditions. The commenter stated that the wording of proposed § 5.267(a) should be amended to provide for direct service connection, rather than presumptive service connection.

The commenter is incorrect that VA grants direct service connection under § 3.316. Although the regulation text does not explicitly state so, § 3.316 grants presumptive service connection and not direct service connection. The regulation presumes a medical nexus between full-body exposure to mustard gas or Lewisite and the listed diseases, thereby establishing a presumption as described in § 5.260(a).

We also note that our authority to create presumptions is explicitly set forth in 38 U.S.C. 501(a)(1), under which the Secretary may prescribe “regulations with respect to the nature and extent of proof and evidence . . . in order to establish the right to benefits”. As we noted in the preamble to the NPRM, the Secretary exercised this authority when he first promulgated § 3.316. 69 FR 44614, July 27, 2004.

We propose to revise the sentence preceding the table in § 5.267(b) so it is a complete sentence instead of a phrase and so it is consistent with other table introductions used in this regulation. We also propose to change “condition” in paragraph (a)(2) to “injury or disease” to be consistent with paragraph (b). In the table, we propose to change “disease or disability” to “injury or disease” for the same reason.

§ 5.268 Presumption of Service Connection for Diseases Associated With Exposure to Ionizing Radiation

In initially proposed § 5.268 we inadvertently failed to include the provisions of current 38 CFR 3.309(d)(3)(ii)(E). We propose to correct this omission by inserting § 5.268(c)(6), which is virtually identical to current § 3.309(d)(3)(ii)(E).

§ 5.269 Direct Service Connection for Diseases Associated With Exposure to Ionizing Radiation

In reviewing the comment received regarding this section, we have determined that both 38 CFR 3.311 and initially proposed § 5.269 use several different terms interchangeably or inconsistently. For example they refer to dose estimates as “dose assessments,” “dose information,” and “dose data”. We propose to remedy this problem by using the phrase “dose assessment” throughout § 5.269.

In initially proposed § 5.269(c)(3), we stated, “Neither the veteran nor the veteran's survivors may be required to produce evidence substantiating exposure if the information in the veteran's service records or other records maintained by the Department of Defense is consistent with the claim Start Printed Page 71111that the veteran was present where and when the claimed exposure occurred.” Current § 3.311(a)(4) actually limits the scope of this provision to only “cases described in paragraph (a)(2)(i) and (ii) of this section” (those involving atmospheric nuclear weapons test participation and Hiroshima and Nagasaki occupation). We inadvertently omitted this scope limitation in the initially proposed rule and we not propose to insert it in § 5.269(c)(3).

In initially proposed § 5.269(b), we omitted, without explanation, a number of cancers listed in current 38 CFR 3.311(b)(2): thyroid cancer; breast cancer; lung cancer; liver cancer; skin cancer; esophageal cancer; stomach cancer; colon cancer; pancreatic cancer; kidney cancer; urinary bladder cancer; salivary gland cancer; multiple myeloma; ovarian cancer; cancer of the rectum; and prostate cancer. We omitted these because they are subsumed within the meaning of the phrase, “Cancer (any other not listed)” in initially proposed paragraph (b)(2) (based on the phrase, “Any other cancer” in current § 3.311(b)(2)(xxiv)). We provide this explanation now, to assure the public that the fact that these cancers are not specifically referenced in the part 5 rule does not represent VA's intent to alter the applicability of the presumption that the diseases in some cases were caused by exposure to ionizing radiation.

In initially proposed paragraph (c)(5)(iii) (now redesignated as (d)(2)(iii)) we referred to an estimated dose of “zero rem gamma”. The word “gamma” is not in § 3.311 and we propose to remove it because it would improperly narrow the scope of this paragraph.

In initially proposed paragraph (d)(1) (now redesignated as paragraph (c)(1)(iii)), we stated, “If neither the Department of Defense nor any other source provides VA with records adequate to permit the Under Secretary to prepare a dose estimate, then VA will ask the Department of Defense to provide a dose estimate.” We stated in the preamble that this provision would reflect the fact that it is impossible to estimate the likelihood that ionizing radiation exposure caused a claimed condition in the absence of a numerical ionizing radiation dose estimate and that VA would be unable to prepare a dose estimate if it has not received any records on which to base such an estimate.

Upon review of this provision, we have determined that it does not accurately reflect VA's procedures in such cases. Moreover, it would be impracticable to request dose assessments from the Department of Defense (DoD) in these cases. This is because if DoD lacked records adequate to permit the Under Secretary for Health to prepare a dose assessment, then presumably DoD would likewise be unable to do so. For this reason, we propose to remove this provision.

In initially proposed paragraph (f), now redesignated as paragraph (g), we stated, “With regard to any issue material to consideration of a claim, the provisions of § 3.102 of this title apply (any reasonable doubt on any issue will be resolved in favor of the claimant).” In proposed § 5.3, we state, “When the evidence is in equipoise regarding a particular fact or issue, VA will give the benefit of the doubt to the claimant and the fact or issue will be resolved in the claimant's favor.” Since this provision applies to all VA claims, there is no need to repeat it in this paragraph and so we propose to remove it.

We received one comment stating that part of initially proposed § 5.269(g), now redesignated as paragraph (h), is unnecessary. The commenter believes that there is no danger of service connection being established for a disease due to radiation exposure if the disease is due to the abuse of alcohol or drugs. The commenter believes that since § 5.269 requires competent evidence and a decision by the Under Secretary of Benefits that it is at least as likely as not that the veteran's disease resulted from ionizing radiation in service, a disease due to the abuse of alcohol or drugs could not possibly be service connected under § 5.269.

We agree that the language regarding abuse of alcohol or drugs is unnecessary in § 5.269(h) and propose to remove it. Section 5.662, “Alcohol and drug abuse”, already bars an award of service connection for disabilities resulting from such abuse. For the same reason, we propose to remove such language from § 5.266(c)(3).

In initially proposed § 5.269(g), now redesignated as paragraph (h), we referred to “a supervening, nonservice-related condition or event [that] is more likely the cause of the disease” but failed to say more likely than what. We propose to clarify this by adding “than was exposure to ionizing radiation in service” so that the sentence will read: “In no case will service connection be established if evidence establishes that a supervening condition or event unrelated to service is more likely the cause of the disease than was exposure to ionizing radiation in service.”

In addition to the changes described above, we also propose to make minor changes in format and wording for clarity and readability.

§ 5.270 Presumption of Service Connection for Amyotrophic Lateral Sclerosis

Since publication of the AL70 NPRM, VA published a Final Rule creating a presumption of service connection for amyotrophic lateral sclerosis, which was codified as 38 CFR 3.318. 73 FR 54693, Sept. 23, 2008. We propose to add the text of § 3.318 as new § 5.270, with one revision: rather than restate the rebuttal standards already contained in § 5.260(c), we simply referenced that paragraph.

§ 5.271 Presumption of Service Connection for Infectious Diseases

Since publication of the AL70 NPRM, VA published a final rule creating presumptions of service connection for nine infectious diseases, which was codified as 38 CFR 3.317.75 FR 59968, Sept. 29, 2010. Infectious diseases are not actually within the definition of “qualifying chronic disability,” which is the purported subject of the regulation. Removing those provisions to a separate section will make the rules easier to comprehend and follow. We propose to incorporate these regulatory amendments into § 5.271.

Omission of § 3.379, Anterior Poliomyelitis, From Part 5

We received two comments relating to the initial proposal in the NPRM not to repeat § 3.379 in part 5. This section concerned service connection of the disease anterior poliomyelitis. One commenter agreed with the proposal. Another commenter disagreed with both the proposal and VA's rationale for removing it.

We proposed not to include § 3.379 because it is unnecessary in light of the operation of proposed § 5.261 regarding the presumption of service connection for chronic diseases. 69 FR 44623, July 27, 2004. Congress specified myelitis as a chronic disease under 38 U.S.C. 1101(3), and anterior poliomyelitis is a subcategory of myelitis. The general rules of presumptive service connection for chronic diseases under § 5.261 would apply to anterior poliomyelitis and any veteran who would be service connected under § 3.379 would also be service connected under § 5.261. Therefore, we concluded that § 3.379 was unnecessary and we proposed not to include it in part 5. We propose to make no changes based on these comments.

One commenter stated that it is not proper to apply the general presumption of service connection to poliomyelitis without taking into account the known medical facts, specifically, that Start Printed Page 71112poliomyelitis is a disease for which the exact cause and date of onset can be ascertained.

The commenter also detailed the three possible outcomes of a poliomyelitis infection. First, there is nonparalytic poliomyelitis, which is an acute illness, which resolves with no chronic or permanently disabling residuals. Nonparalytic poliomyelitis may properly be denied service connection on that basis. Second, there is paralytic poliomyelitis. The commenter notes that the date of the antecedent illness for paralytic poliomyelitis is crucial. If it occurs no later than 35 days after separation from service, it must have occurred in service, but if it occurs more than 35 days after separation from service, it must have occurred after service (therefore rebutting the presumption of service connection). Finally, there is paralytic poliomyelitis without apparent antecedent illness. In this case, it is a matter for medical determination and opinion as to the most probable date of exposure. If the medical evidence is inconclusive, then the presumption of service connection for myelitis should apply.

We propose to make no changes based on this comment. The general rule for presumption of service connection for chronic diseases in § 5.261 would provide accurate results for all the situations the commenter described, including rebuttal by medical evidence of the type the commenter described.

First, regarding nonparalytic poliomyelitis, because this disease cannot possibly be 10 percent or more disabling, the presumption of service connection under § 5.261 cannot apply in these cases.

Second, regarding paralytic poliomyelitis, direct service connection may be established in the majority of cases based on medical knowledge that the illness occurs no later than 35 days after exposure. Where direct service connection is denied based on the fact that the illness occurred more than 35 days after separation from service, the presumption of § 5.261 will be considered. However, the presumption of service connection will be rebutted under the provisions of § 5.260(c)(1)(iii) because there will be a preponderance of evidence (based on fact-based medical evidence and the date symptoms first occurred) establishing that the disease was not incurred in service.

Finally, with respect to paralytic poliomyelitis without apparent antecedent illness as described by the commenter, where direct service connection is not in order, VA will consider the presumption of service connection for myelitis as a chronic disease. However, the Centers for Disease Control and Prevention reports that all forms of poliomyelitis have an incubation period of 3 to 35 days, so a fact-based medical opinion would be needed to establish the approximate date of onset. Poliomyelitis, Centers for Disease Control and Prevention 232, Poliomyelitis, http://www.cdc.gov/​vaccines/​pubs/​pinkbook/​downloads/​polio.pdf, last viewed Sept. 15, 2009.

Technical Corrections

One commenter noted that in one part of the NPRM preamble, we “reserved” § 5.263, but elsewhere in the NPRM we proposed to repeat § 3.313 as § 5.263. The commenter felt that this was confusing. This was an error that we now propose to correct. We propose to create a new § 5.263 that has the same wording as § 3.313, except for the changes discussed in the preamble of the NPRM. We have corrected this in this proposed rule.

C. Rating Service-Connected Disabilities

§ 5.280 General Rating Principles

Initially proposed § 5.280(b)(1), based on 38 CFR 3.321, stated that for extra- schedular ratings in unusual cases that to accord justice to the exceptional case where the Veterans Service Center (VSC) finds the schedular ratings to be inadequate, the Under Secretary for Benefits or the Director of the Compensation and Pension Service, upon VSC submission, is authorized to approve an extraschedular rating commensurate with the average impairment of earning capacity due exclusively to the service-connected disability or disabilities. Paragraph (b)(1) also stated that the governing norm in these exceptional cases is a finding that the application of the regular schedular standards is impractical because the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment, or frequent periods of hospitalization.

One commenter suggested that to avoid injustice in a case where the VSC improperly fails to find that the schedular rating is inadequate, VA should revise § 5.280(b)(1) to read:

To accord justice to the exceptional case, the Under Secretary for Benefits or the Director of the Compensation and Pension Service, is authorized to approve on the basis of the criteria set forth in this paragraph, an extra-schedular rating commensurate with the average impairment of earning capacity due exclusively to the service-connected disability or disabilities.

The commenter asserted that this suggested language is consistent with Colayong v. West, 12 Vet. App. 524, 536-37 (1999) and Young v. Shinseki, 22 Vet. App. 461, 470 (2009), which state that whether or not the VSC has, in the first instance, found the schedular rating to be inadequate, if it is inadequate it must be referred for an extra-schedular rating.

We note that the language of initially proposed 5.280(b)(1) was not substantively different from current § 3.321(b)(1), the regulation which was the basis for the courts' rulings in Colayong and Young. Those cases left undisturbed the requirement in § 3.321(b)(1) that extra-schedular review may be undertaken by the Under Secretary for Benefits or the Director, Compensation and Pension Service, only “upon field station submission”. Rather, those cases held that the Board of Veterans' Appeals (Board) must adjudicate the issue of entitlement to an extraschedular evaluation, if the issue is raised by the evidence of record or by the appellant.

We do not believe it is necessary to incorporate this line of cases into part 5. Since the Colayong case was decided in 1999, the Board has been under the duty set out by the court and the Board's Veterans Law Judges are now well aware of this duty. Moreover, it would be outside the scope of part 5 to impose a duty on the Board via a part 5 regulation. We therefore propose to make no change based on this comment.

In reviewing proposed § 5.280 to respond to this comment, we have noted that it contains language (substantively the same as § 3.321(b)) that might confuse a reader. Specifically, proposed § 5.280(b)(1) stated, “To accord justice to the exceptional case where the [VA] finds the schedular ratings to be inadequate, the [VA] is authorized to approve on the basis of the criteria set forth in this paragraph (b) an extra-schedular rating commensurate with the average impairment of earning capacity due exclusively to the service-connected disability or disabilities.” The use of the plural “disabilities” might be misconstrued as allowing VA to approve an extra-schedular rating based partly on a disability for which the schedular rating is inadequate and partly on a disability for which the schedular rating is adequate, or to suggest that under § 5.280 VA must consider the combined effect of multiple disabilities in determining whether an extra-schedular award is appropriate.

VA never intended that § 3.321, nor initially proposed § 5.280, apply in either of those ways but rather that they be applied individually to each specific disability being evaluated. Therefore, we propose to use only the singular Start Printed Page 71113form of “disability”, and to replace the word “case” with “disability” in the second sentence of § 5.280(b)(1), to clarify this point. We also propose several other, non-substantive changes to improve readability of paragraph (b)(1).

§ 5.281 Multiple 0 Percent Service-Connected Disabilities

Initially proposed § 5.281 stated:

VA may assign a 10 percent combined rating to a veteran with two or more permanent service-connected disabilities that are each rated as 0 percent disabling under the Schedule for Rating Disabilities in part 4 of this chapter, if the combined effect of such disabilities interferes with normal employability. VA cannot assign this 10 percent rating if the veteran has any other compensable rating.

One commenter suggested that for clarity, the second word in this section should be changed from “may” to “shall” to emphasize the mandatory nature of assigning the combined rating. We agree with this suggestion but we use “will” instead of “shall” throughout part 5 because the former is easier for the public to understand. We therefore propose to change “may” to “will” in § 5.281.

§ 5.282 Special Consideration for Paired Organs and Extremities

Initially proposed § 5.282(c) stated that, “If a veteran receives money or property of value in a judgment, settlement, or compromise from a cause of action for a qualifying nonservice-connected disability involving an organ or extremity described in paragraph (b) of this section, VA will offset the value of such judgment, settlement, or compromise against the increased disability compensation payable under this section.”

One commenter suggested that because the VA Schedule for Rating Disabilities does not provide compensation for non-economic loss, such as pain and suffering and loss of enjoyment of life, initially proposed § 5.282(c)(2) should calculate the offset of damages by first reducing the total amount recovered as damages by the amount received for pain and suffering and loss of enjoyment of life. The commenter also suggested that the amount paid for attorney fees and expenses for that recovery should be subtracted from the total amount recovered as damages.

The relevant statute, 38 U.S.C. 1151 does not allow VA to reduce the offset for any reason. Moreover, the purpose of the Regulation Rewrite Project is to make VA's compensation and pension regulations more logical, claimant-focused, and user-friendly, not to serve as a vehicle for making major changes to VA policies. Thus, the comment is outside the scope of this rulemaking.

§ 5.283 Total and Permanent Total Ratings and Unemployability

Initially proposed § 5.283(b) stated that, “VA will consider a total disability to be permanent when an impairment of mind or body, that makes it impossible for the average person to follow a substantially gainful occupation, is reasonably certain to continue throughout the life of the disabled person.”

One commenter asserted that it is inconsistent for VA to provide that total disability is permanent only if it is reasonably certain to continue throughout the lifetime of the veteran when the Social Security Administration considers a total disability to be permanent if it is likely to continue for 1 year or lead to death. The commenter asserted that veterans should not have a higher threshold for permanency than Social Security Disability recipients.

The purpose of the Regulation Rewrite Project is to make VA's compensation and pension regulations more logical, claimant-focused, and user-friendly, not to serve as a vehicle for making major changes to VA policies. Thus, the comment is outside the scope of this rulemaking.

§ 5.300 Establishing Dependency of a Parent

In initially proposed § 5.300(b)(2)(ii), we stated, “Net worth of a minor family member will be considered income of the parent only if it is actually available to the veteran's parent for the minor's support.” This statement was erroneous and inconsistent with § 3.250(b)(2). In fact, a minor's net worth is not considered income. Rather it is considered as a separate matter from income. We therefore propose to revise paragraph (b)(2)(ii) to read, “Net worth of a minor family member will be considered in determining dependency of a parent only if it is actually available to the veteran's parent for the minor's support.”

In initially proposed § 5.300 we also failed to address a minor's income. We therefore propose to add a new paragraph (b)(1)(iii) which states, “Income of a minor family member from business or property will be considered income of the parent only if it is actually available to the veteran's parent for the minor's support.” This is merely a plain language restatement of the § 3.250(b)(2) provision quoted above.

5.304 Exclusions From Income—Parent's Dependency

Following publication of proposed § 5.304 in AM07, VA published a rulemaking to implement the “Caregivers” provisions of Public Law 111-163. 76 FR 26148 (May 5, 2011). As we stated in the preamble, “The stipend payments to Primary Family Caregivers under 38 U.S.C. 1720G(a)(3)(A)(ii)(V) constitute `payments [of benefits] made to, or on account of, a beneficiary' that are exempt from taxation under 38 U.S.C. 5301(a)(1). VA does not intend that the stipend replace career earnings.” Consistent with that interpretation, we believe that this stipend should not be counted as income when determining parental dependency. We therefore propose to add this exclusion as § 5.304(l) and redesignate previous paragraph (l) as paragraph (m).

C. Special Ratings AL88

In a document published in the Federal Register on October 17, 2008, we proposed to revise Department of Veterans Affairs (VA) regulations governing special ratings, to be published in new 38 CFR part 5. 73 FR 62004. We provided a 60-day comment period, which ended December 16, 2008. We received a submission from one commenter.

§ 5.320 Determining Need for Regular Aid and Attendance

Current 38 CFR 3.352(c) states, “The performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance.” Initially proposed § 5.320(a) inadvertently omitted this paragraph. We therefore propose to insert this provision, phrased in a clearer way, into § 5.320(a).

The commenter noted that initially proposed § 5.320(b) differs from current § 3.352(a), from which it derives. The current rule defines “bedridden” as “that condition which, through its essential character, actually requires that the claimant remain in bed.” The initially proposed rule defined bedridden as requiring that the claimant “must remain in bed due to his or her disability or disabilities based on medical necessity and not based on a prescription of bed rest for purposes of convalescence or cure.” The commenter asserted that the change of language “may eliminate the possibility of using proof by lay testimony that remaining in bed is required.”

The need for aid and assistance or confinement to bed may be shown by Start Printed Page 71114medical treatment records, medical opinions, and competent non-medical evidence based on personal observations. However, the relationship between service-connected disability and need for aid and attendance or confinement to bed as a result of a service-connected disability must be shown by medical treatment records and medical opinions.

VA will always accept and consider lay evidence, even if such evidence cannot be dispositive of a particular factual issue. The consideration of lay evidence in the context of a determination on whether a person is bedridden is no different that the consideration of lay evidence on the context of any other factual determination. Therefore, we propose not to include an instruction regarding lay evidence.

However, the comment revealed that the initially proposed rule was unclear about the meaning of the term “bedridden”. Current § 3.352(a) states, “The fact that . . . a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice” to establish bedridden status. The gist of this qualification is to distinguish the need to stay in bed unremittingly from a need to be in bed intermittently. It is the intermittency that distinguishes being in bed “for the greater or lesser part of the day” from being bedridden, not that convalescence or cure is the reason. If a doctor forbids a person to leave bed because of the person's medical condition, the person would be bedridden, whether the prescribed confinement was for convalescence, cure, or other reason. We propose to revise § 5.320(b) to preserve this point, consistent with § 3.352(a), by stating that the person who is bedridden “must remain in bed due to his or her disability or disabilities based on medical necessity and not based on a prescription of periods of intermittent bed rest.” Because the reason for the prescribed confinement is irrelevant, we propose to remove the phrase “for purposes of convalescence or cure”.

The initially proposed rule required that, “The individual is temporarily or permanently bedridden. . . .” A person who is permanently bedridden logically meets the requirement that he or she is temporarily bedridden. Because being either temporarily or permanently bedridden satisfies the requirement of § 5.320(b), there is no need to qualify “bedridden” as either temporarily or permanently. We therefore propose to remove the phrase “temporarily or permanently” before “bedridden”. However, a finding that a veteran is permanently bedridden is significant because such a veteran's special monthly compensation (SMC) will not be reduced based on hospitalization, as we explained in the preamble to the initially proposed rule. See 73 FR 62011, Oct. 17, 2008; see also proposed § 5.724, “Payments and Adjustments to Payments”, 73 FR 65212, Oct. 31, 2008. The only statute that requires payment of SMC based on the “permanently bedridden” criterion is 38 U.S.C. 1114(l). Therefore, we have added a cross reference to § 5.324, the regulation that implements section 1114(l). This change will not affect entitlement, because even a person who is temporarily bedridden will qualify for SMC under section 1114(l) (because such a person needs regular aid and attendance). The change is intended to improve clarity in terms of the potential for a reduction based on hospitalization.

Initially proposed § 5.320(b) omitted the sentence from current § 3.352(a) that states, “It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made.” However, we failed to explain that omission in our preamble. We note that initially proposed 5.320(a) already provided for aid and attendance if the claimant meets “any or all” of the listed criteria. Therefore this sentence was unnecessary and we propose not to include it in § 5.320.

§ 5.321 Additional Disability Compensation for a Veteran Whose Spouse Needs Regular Aid and Attendance

At the end of initially proposed paragraph (a), we propose to add a notation that the term “aid and attendance” used in that paragraph is “defined in paragraphs (b) and (c) of this section.” The notation is needed to ensure that a reader does not think that the term means only the generally applicable definition set forth in proposed § 5.320.

The commenter addressed the visual impairment criteria of automatic eligibility for regular aid and attendance. Initially proposed § 5.321(b) provided that the spouse of a veteran who is 30 percent disabled is automatically considered in need of regular aid and attendance if the spouse's visual impairment meets one of two criteria: “(1) The spouse has corrected visual acuity of 5/200 or less in both eyes; [or] (2) The spouse has concentric contraction of the visual field to 5 degrees or less in both eyes”. Section 3.351(c)(1), from which proposed § 5.321(b)(2) derives, states, “. . . or concentric contraction of the visual field to 5 degrees or less.” The proposed rule specified the bilateral requirement, which VA has long implemented, as we explained in the notice of proposed rulemaking (NPRM). We explained that VA had long used these objective vision criteria to satisfy the regulatory criteria of “blind or so nearly blind”. See 38 U.S.C. 1115(1)(E). Noting that the VA Schedule for Rating Disabilities provides only a 30 percent disability rating for unilateral concentric contraction of the visual field to 5 degrees and a rating of 100 percent for bilateral concentric contraction to that degree, we explained that unilateral contraction could not be considered “so nearly blind as to support a need for aid and attendance”. We further noted that, although the rating schedule applies to ratings for veterans, there is no rational basis not to apply the same criteria for veterans' spouses in considering the proper standards for determining the need for aid and attendance.

The commenter asserts that there is a rational basis to construe the visual impairment criteria of the need for regular aid and attendance differently for the spouse of a 30 percent disabled veteran than for a veteran seeking disability compensation for visual impairment. The commenter stated:

To the contrary, the criterion for granting a veteran, who already has a 30% disability, additional benefits because of having a spouse with a serious visual impairment should be more relaxed than the standard for rating the veteran's own visual impairment. It follows that even a spouse with a unilateral concentric contraction of the visual field to 5 degrees or less would necessarily require regular aid and attendance which would be an additional financial burden on a veteran who is 30% disabled.

We disagree with the commenter for two reasons. First, the aid and attendance criterion of “blind, or so nearly blind” is established by statute. 38 U.S.C. 1115(1)(E)(ii). VA would exceed its authority to “relax” the statutory standard for finding the veteran's spouse in need of regular aid and attendance. As we explained in the initial NPRM, by reference to the VA Schedule for Rating Disabilities, a person with unilateral concentric contraction of the visual field to 5 degrees or less “cannot rationally be considered `so nearly blind' as to need regular aid and attendance.” Section 5.321(b) states an objective measure of vision that VA considers “so nearly blind” as to need regular aid and attendance without further inquiry. It confers the benefit of automatic eligibility without burdening the veteran to prove some other way that his or her spouse is “blind, or so nearly Start Printed Page 71115blind” as to need regular aid and attendance. Section 5.321(b) does not deprive the veteran of the ability to establish need for aid and attendance by other means. This is because § 5.321(c) provides for proof of entitlement with any evidence that shows the veteran's spouse in fact needs regular aid and attendance, even, possibly, with evidence of visual impairment that is much less than the impairment that automatically establishes a need for regular aid and attendance.

Second, we disagree that because a veteran is 30 percent disabled the veteran's spouse would necessarily require regular aid and attendance with unilateral concentric contraction of the visual field to 5 degrees or less, or, by implication, with less impairment than prescribed by proposed § 5.321(b). The need for regular aid and attendance is a function of a person's ability to care for himself or herself, not of another's ability to provide financial or other support. Although the veteran's ability to provide for the spouse financially or otherwise could vary in relation to the veteran's disability, it does not logically follow that the spouse's need for regular aid and attendance varies in relation to the veteran's disability. In light of the discussion above, we propose to make no changes based on this comment.

§ 5.322 Special Monthly Compensation: General Information and Definitions of Disabilities

In initially proposed § 5.322(a)(1), we stated that multiple regulations allow special monthly compensation (SMC) to veterans who have certain service-connected disabilities. In initially proposed paragraph (a)(2), we stated that certain nonservice-connected disabilities will be considered in determining entitlement to SMC, and we listed the relevant sections. To emphasize that service-connected disability is a prerequisite for SMC, we propose to add this sentence to paragraph (a)(1): “Except as specified in paragraph (a)(2) of this section, the disabilities referred to in §§ 5.323-5.333 must be service connected.”

Section 601 of Public Law 111-275, 124 Stat. 2864, 2884 (2010) amended 38 U.S.C. 1114(m) to replace the phrases “at a level, or with complications,” and “at levels, or with complications,” with the phrase “with factors”. The public law also amended section 1114(n) to replace “at levels, or with complications,” with the phrase “with factors” and to replace “so near the shoulder and hip as to” with “factors that”. It also amended section 1114(o) to replace “so near the shoulder as to” with “with factors that”. We propose to revise initially proposed §§ 5.322, 5.325-5.330, and 5.334 to conform to this new statutory language.

In the NPRM, we identified many disabilities in those sections as “service connected”. Given that service-connected disability is a requirement for all SMC benefits (except as specifically provided in certain sections), we have determined that it is unnecessary to specify each disability as service connected throughout those sections. We have therefore removed the modifier “service-connected” throughout §§ 5.321 and 5.323-5.333, except where necessary to distinguish the service-connected disability from a nonservice-connected disability.

§ 5.323 Special Monthly Compensation Under 38 U.S.C. 1114(k)

We have reorganized initially proposed § 5.323(b) and moved one sentence from paragraph (b) into a closely related part 5 section. Initially proposed § 5.323(b) stated limitations on SMC under 38 U.S.C. 1114(k). Paragraph (b)(1) stated limitations on combining SMC under 38 U.S.C. 1114(k) with disability compensation under section 1114(a) through (j). Paragraph (b)(2) stated limitations on combining SMC under section 1114(k) with SMC under 1114(l) through (n). On review, we see that paragraph (b)(1)(ii) stated a limitation germane to paragraph (b)(2). We therefore propose to move it to paragraph (b)(2), and redesignate it as paragraph (b)(2)(i). We propose to redesignate initially proposed paragraph (b)(2) as paragraph (b)(2)(ii).

One provision of initially proposed paragraph (b)(1)(iii) stated that the additional compensation for dependents under 38 U.S.C. 1115 is not subject to the “above limitations”, meaning the limitations in initially proposed paragraph § 5.323(b)(1). We propose to move this provision to § 5.240, “Disability compensation”, because it pertains to all disability compensation, not just to SMC.

The remainder of initially proposed paragraph (b)(1)(iii) stated that “the additional allowance for regular aid and attendance or a higher level of care provided by 38 U.S.C. 1114(r) [is] not subject to the above limitations regarding maximum monthly compensation payable under this paragraph.” To improve clarity, we therefore propose to redesignate this provision of initially proposed paragraph (b)(1)(iii) as paragraph (b)(3) and have clearly identified the excluded limitations as those of § 5.323(b). For consistency throughout part 5, we propose to revise “compensation” to read “disability compensation”. As revised, the sentence will read: “The additional allowance for regular aid and attendance or a higher level of care provided by 38 U.S.C. 1114(r) is not subject to the limitations of paragraph (b) of this section regarding maximum monthly disability compensation payable under 38 U.S.C. 1114(k) in combination with other rates.”

§ 5.324 Special Monthly Compensation Under 38 U.S.C. 1114(l)

The commenter asserted that as initially proposed, § 5.324(d) violated the “benefit of the doubt” rule of 38 U.S.C. 5107(b) by defining “permanently bedridden” as “reasonably certain that the confinement to bed will continue throughout his or her lifetime.” The commenter noted that the benefit of the doubt rule is “[w]hen there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.” The commenter argued that to comply with the benefit of the doubt rule, § 5.324(d) should substitute “at least as likely as not” for “reasonably certain”. That is, it should read, “It is at least as likely as not that the confinement to bed will continue throughout his or her lifetime.”

The statute that § 5.324(d) implements authorizes VA to pay special monthly compensation to a veteran who is “permanently bedridden.” 38 U.S.C. 1114(l). We agree that use of the term “reasonably certain” could be misconstrued to require a higher standard of proof than “at least as likely as not”. Therefore, we propose to remove “reasonably certain”. As revised, the standard of proof would be the default standard, which is the “benefit of the doubt” rule. The “benefit of the doubt rule”, found in § 5.3, incorporates the concept of “at least as likely as not.”

§ 5.325 Special Monthly Compensation at the Intermediate Rate Between 38 U.S.C. 1114(l) and (m)

We propose to amend the language in § 5.325 for clarity.

§ 5.326 Special Monthly Compensation Under 38 U.S.C. 1114(m)

In initially proposed § 5.326(i), we provided an award of SMC under 38 U.S.C. 1114(m) based on the facts found “[i]f the veteran has . . . concentric contraction of the visual field to 5 degrees or less in both eyes”. This paragraph was derived from § 3.350(c)(3), which does not include the “or less” criterion. See 38 CFR Start Printed Page 711163.350(c)(3) (“[w]ith . . . the vision field reduced to 5 degrees concentric contraction in both eyes”). We did not explain our reason for the addition of the “or less” criterion. Although we did not receive any comments on this issue, we note that in the NPRM for proposed § 5.325(d) we explained our rationale for treating visual acuity of 5/200 or less and concentric contraction of the visual field to 5 degrees or less as equally disabling. See 73 FR 62012, Oct. 17, 2008. In that notice, we also stated our intent to apply the principle of equivalence of visual acuity of 5/200 or less with concentric contraction of the visual to 5 degrees or less “wherever it is applicable”. It applies to § 5.326(i).

5.330 Special Monthly Compensation Under 38 U.S.C. 1114(o).

In initially proposed § 5.330(c), we stated one combination of disabilities that qualify a veteran for an award under 38 U.S.C. 1114(o) as follows: “Total deafness in one ear, or bilateral deafness rated at 40 percent or more disabling, even if the hearing impairment in one ear is nonservice connected, in combination with service-connected blindness of both eyes having only light perception or less.” We believe the phrase “only light perception or less”, which is also contained in current 38 CFR 3.350(e)(1)(iv), may confuse readers because it fails to explain what “less” refers to. The intent of § 3.350(e)(1)(iv) is to include veterans with only light perception or less vision, so we propose to add the word vision at the end of § 5.330(c).

The preamble to initially proposed 5.330 stated, “We will not repeat § 3.350(e)(4) and the third and fourth sentences of § 3.350(e)(3). These sentences are redundant of § 3.350(e)(1)(ii) . . .” In fact, we actually omitted the second through fourth sentences, for the same reason.

5.332 Additional Allowance for Regular Aid and Attendance Under 38 U.S.C. 1114(r)(1) or for a Higher Level of Care Under 38 U.S.C. 1114(r)(2)

Section 601 of Public Law 111-275, 124 Stat. 2864, 2884 (2010) amended 38 U.S.C. 1114 by adding a new paragraph (t) which provides:

Subject to section 5503(c) of this title, if any veteran, as the result of service-connected disability, is in need of regular aid and attendance for the residuals of traumatic brain injury, is not eligible for compensation under subsection (r)(2), and in the absence of such regular aid and attendance would require hospitalization, nursing home care, or other residential institutional care, the veteran shall be paid, in addition to any other compensation under this section, a monthly aid and attendance allowance equal to the rate described in subsection (r)(2), which for purposes of section 1134 of this title shall be considered as additional compensation payable for disability. An allowance authorized under this subsection shall be paid in lieu of any allowance authorized by subsection (r)(1).

We propose to add a new paragraph (c)(7) to initially proposed § 5.332 to implement this statutory change.

§ 5.333 Special Monthly Compensation Under 38 U.S.C. 1114(s)

In Bradley v. Peake, issued after § 5.333 was initially proposed, the U.S. Court of Appeals for Veterans Claims held that under VA's existing regulation (38 CFR 3.350(i)) entitlement to SMC under section 1114(s) may be provided to a claimant who was assigned “a TDIU [total disability based on individual unemployability] rating based on a single disability to satisfy the statutory requirement of a total rating.” Bradley, 22 Vet. App. 280, 293 (2008). To clearly implement the court's holding, we propose to revise the first paragraph of initially proposed § 5.333 to state:

Special monthly compensation under 38 U.S.C. 1114(s) is payable to a veteran who has a single disability rated 100 percent disabling under subpart B of the Schedule for Rating Disabilities in part 4 of this chapter, or a disability that is the sole basis for a rating of total disability based on individual unemployability (TDIU) under § 4.16 of this chapter, and [additional disabilities as described in either paragraph (a) or (b) of § 5.333].

We propose to revise paragraphs (a) and (b) so that they will be clear when read in connection with these revisions.

§ 5.336 Effective Dates: Additional Compensation for Regular Aid and Attendance Payable for a Veteran's Spouse Under § 5.321

We propose to revise § 5.336 (a)(2) to be in the active voice and to improve clarity. In initially proposed paragraph (a)(2), we stated, “[retroactive] regular aid and attendance for the spouse will also be awarded”. We now propose to clarify that the benefit paid is properly called “additional compensation” for regular aid and attendance. Also, initially proposed paragraph (a)(2) referred to a spouse's “entitlement to regular aid and attendance”. However, it is the spouse's need for, not entitlement to, regular aid and attendance that is the basis for the additional compensation. We therefore propose to change the reference to “entitlement” to a reference to “need”. The whole sentence will read, “When VA awards disability compensation based on an original or reopened claim retroactive to an effective date that is earlier than the date of receipt of the claim,VA will also award additional compensation for any part of the retroactive period during which the spouse needed regular aid and attendance.”

Title 38 CFR 3.501(b)(3) states that the effective date for discontinuance of additional compensation paid based on a spouse's need for regular aid and attendance is the, “[e]nd of month in which award action is taken if need for aid and attendance has ceased.” Initially proposed paragraph (b) stated, “The effective date for the discontinuance of regular aid and attendance will be the end of the month in which VA stops paying the aid and attendance.” The proposed regulation incorrectly stated that VA will stop paying the benefit when we discontinue the benefit. It also failed to identify the reason for the discontinuance: the spouse no longer needs regular aid and attendance. We propose to remedy these two defects by revising the sentence to read, “If the veteran's spouse no longer needs regular aid and attendance, VA will discontinue additional compensation effective the end of the month in which VA takes the award action to discontinue.”

5.337 Award of Special Monthly Compensation Based on the Need for Regular Aid and Attendance During Period of Hospitalization

We have determined that initially proposed § 5.337 is redundant of § 5.720(f). We therefore propose to delete § 5.337 from part 5.

§ 5.350 Benefits Under 38 U.S.C. 1151(a) for Additional Disability or Death Due to Hospital Care, Medical or Surgical Treatment, Examination, Training and Rehabilitation Services, or Compensated Work Therapy Program

Initially proposed § 5.350 erroneously included applicability date rules derived from current § 3.361(a)(1) and (2). Those rules pertain, respectively, to the applicability date of § 3.361 to claims for benefits under 38 U.S.C. 1151(a) generally, and to claims for benefits related to compensated work therapy specifically. No regulation in part 5 will apply before the applicability date of part 5 as a whole, which will be on a date prescribed in the final rule. Consequently, we erred in restating in initially proposed § 5.350 the applicability dates prescribed in § 3.361. We now propose not to include them in § 5.350. We also propose to similarly revise initially proposed §§ 5.351 and 5.353, which also involve benefits under section 1151.Start Printed Page 71117

Section 3.800(a), “Disability or death due to hospitalization, etc.”, provides that:

Where disease, injury, death or the aggravation of an existing disease or injury occurs as a result of having submitted to an examination, medical or surgical treatment, hospitalization or the pursuit of a course of vocational rehabilitation under any law administered by the Department of Veterans Affairs and not the result of his (or her) own willful misconduct, disability or death compensation, or dependency and indemnity compensation will be awarded for such disease, injury, aggravation, or death as if such condition were service connected.

In initially proposed § 5.350, we failed to include a similar basic explanation of the benefits payable under 38 U.S.C. 1151. To correct this omission, we propose to insert similar language as new paragraph (a).

In initially proposed § 5.350(g), we stated, “The benefit payable under 38 U.S.C. 1151(a) to an eligible survivor for a veteran's death occurring after December 31, 1956, is dependency and indemnity compensation.” This paragraph is unnecessary because we use the term “dependency and indemnity compensation” in new paragraph (a), and part 5 will not govern any claims filed on or before December 31, 1956. We therefore propose to delete paragraph (g).

§ 5.352  Effect of Federal Tort Claims Act Compromises, Settlements, and Judgments Entered After November 30, 1962, on Benefits Awarded Under 38 U.S.C. 1151(a) for Additional Disability or Death Due to Hospital Care, Medical or Surgical Treatment, Examination, Training and Rehabilitation Services, or Compensated Work Therapy Program

For the same reasons explained above as to § 3.350, we propose to delete initially proposed paragraph (a), which had stated that this rule applied to claims received after September 30, 1997. Accordingly, we propose to redesignate initially proposed paragraph (b) as paragraph (a), proposed paragraph (c) as paragraph (b), and proposed paragraph (d) as paragraph (c). We propose to remove unnecessary language from these paragraphs for clarity.

We propose to add paragraph (d), “Offset of award of benefits under 38 U.S.C. chapter 21 or 38 U.S.C. chapter 39”, to initially proposed § 5.352. Section 304(c) of the Veterans Benefits Improvement Act of 2004 amended 38 U.S.C. 1151(b) by adding section 1151(b)(2) relating to offset of chapter 21 and 39 benefits. VA amended current § 3.362 in August 2006 by adding paragraph (e) to that section to implement the part of 38 U.S.C. 1152(b) pertaining to 38 U.S.C. chapter 39. On September 23, 2010, VA amended § 3.362(e) to implement 38 U.S.C. 1151(b) pertaining to 38 U.S.C. chapter 21. See 75 FR 57859. Initially proposed § 5.352 omitted a counterpart to § 3.362(e). We now propose to add the language of § 3.362(e), reorganized for clarity.

§ 5.360 Service Connection of Dental Conditions for Treatment Purposes

Initially proposed § 5.360 was based on 38 CFR 3.381 as it existed at the time (2008). See 73 FR 62004. VA revised § 3.381 on January 30, 2012 (77 FR 4469). This amendment was intended to clarify the language of § 3.381 by adding a new introductory paragraph (a) explaining the types of issues that VBA adjudicates in a dental claim. VA also added a sentence to § 3.381(b) explaining that, “These conditions and other dental conditions or disabilities that are noncompensably rated under § 4.150 of this chapter may be service connected for purposes of Class II or Class II (a) dental treatment under § 17.161 of this chapter.”

We propose to revise initially proposed § 5.360(a), “General Principles”, to incorporate the new introductory paragraph (a) of § 3.381 and to add a statement explaining what service connection for treatment purposes means. We likewise propose to include the second sentence of § 3.381(b) in § 5.360(c)(3). We also propose to revise initially proposed § 5.360 to simplify the provisions, to state the provisions in the active voice, to specify which Administration within VA must make which determinations, and to reorder the provisions in a more logical sequence.

We propose to change the sequence of the paragraphs, designating paragraph (b) as (c), paragraph (c) as (e), paragraph (d) as (b), and paragraph (e) as (d). It is more logical to include the paragraphs concerning what VA will service connect for treatment purposes together and in sequence and before the paragraph that provides for the conditions VA will not service connect for treatment purposes.

In proposed paragraph (c) (initially proposed paragraph (b)), we propose to rephrase the first sentence to state it in the active voice. We propose to remove the modifier, “chronic” from periodontal disease in paragraph (iv) because VA will treat any periodontal disease in a veteran who is eligible for treatment in accordance with the provisions of § 17.161 of this chapter. Periodontal disease, whether labeled acute or chronic, is classified based on the severity of the disease. Gingivitis, which is acute and treatable, is a milder form of periodontal disease. Periodontitis, which is chronic, is the condition that develops if gingivitis is untreated. Since these are essentially different stages of the same disease, VA will treat both stages.

We propose to remove the phrase, “outpatient dental” from the first sentence of paragraph (e) (initially proposed paragraph (c)) because it is redundant and unnecessary. This entire section concerns service connection of dental conditions for treatment purposes. It is immaterial whether VA treats the veteran as an outpatient or while hospitalized. We also propose to remove “acute periodontal disease” from the list of conditions that VA will not service connect for treatment purposes for the reasons stated earlier. We propose to redesignate the subsequent paragraphs accordingly.

§ 5.365 Claims Based on the Effects of Tobacco Products

Initially proposed § 5.365 restated § 3.300 essentially without change. Initially proposed § 5.365(b)(1) stated: “The disability or death resulted from injury or disease that is otherwise shown to have been incurred or aggravated during service, which means that the disability or death can be service connected on some basis other than the veteran's use of tobacco products during service.” The phrase “otherwise shown to have been incurred or aggravated” quotes paragraph (b) of the authorizing statute, 38 U.S.C. 1103. However, we have determined that the phrase “the disability or death can be service connected on some basis other than the veteran's use of tobacco products during service” is the premise of the paragraph. The other language in the initially proposed paragraph is superfluous. We therefore propose to remove this other language.

We also determined that the phrase, “the disability became manifest or death occurred during service”, which appeared in initially proposed (b)(1), is a separate exception to paragraph (a). We therefore propose to designate it paragraph (b)(2). Consequently, we propose to redesignate initially proposed paragraph (b)(2) as (b)(3) and initially proposed paragraph (b)(3) as (b)(4).

We further propose to change the word “appeared” in initially proposed paragraph (b)(2), redesignated paragraph (b)(3), to “manifested” because the cited sections, §§ 5.260 through 5.268, use the word “manifested”. Likewise, 38 U.S.C. 1103(b) uses the word “manifest”.Start Printed Page 71118

In the preamble to the initially proposed rule, we explained that we were not repeating the first clause of § 3.300, “For claims received by VA after June 9, 1998,” because all claims under part 5 will be received after 1998. We have noted that one of the authority citations listed in initially proposed § 5.365 was 38 U.S.C. 1103 note. Because this note only concerns this effective date provision, we propose to omit it from § 5.35.

§ 5.367 Civil Service Preference Ratings for Employment in the U.S. Government

Initially proposed § 5.367 was not explicit as to the purpose of the civil service preference ratings. We now propose to clarify that these ratings are for “employment by the U.S. government”. This clarification is consistent with current practice.

The second sentence stated, “Any directly or presumptively service-connected injury or disease that exhibits some extent of actual impairment may be held to exist at the level of less than 10 percent.” This implied a two-step process in which VA found “actual impairment” and then assigned a rating of less than 10 percent. In fact, there is only one step: if a veteran has any actually disabling directly or presumptively service-connected disability he or she will qualify for the civil service preference. We propose to revise the sentence to say this explicitly.

§ 5.368 Basic Eligibility Determinations: Home Loan and Education Benefits

In initially proposed § 5.368 (a)(1), we stated that claims based on service after January 31, 1955, and before August 5, 1964; or after May 7, 1975, would be governed by the presumption of aggravation in current § 3.306(a) and (c). This was derived from current § 3.315(b). However, the current rule is incorrect, and should refer to § 3.306(b), which applies to all claims based on service after December 7, 1941. We will state the rule correctly in part 5. We propose to make the same correction to paragraph (b)(4).

XI. Subpart F: Nonservice-Connected Disability Pensions and Death Pensions Improved Pension

A. Improved Pension

In a document published in the Federal Register on September 26, 2007, we proposed to revise VA's regulations governing Improved Pension benefits, to be published in a new 38 CFR part 5. 72 FR 54776. We provided a 60-day comment period that ended November 26, 2007. We received no comments.

Although we received no comments regarding our publication on September 26, 2007, an internal review of initially proposed Subpart F revealed several drafting errors that needed to be corrected, and we propose to do so. We also propose to make organizational and technical changes to improve the clarity of the regulations, and to maintain consistency throughout part 5.

§ 5.370 Definitions for Improved Pension

We propose to add a general definition of “Improved Pension”, as § 5.370 (d), to be consistent with our practice of providing general definitions for the benefits provided by VA. See, for example, §§ 5.240(a) (defining disability compensation) and 5.460 (defining certain VA pension programs). The text of the definition is based on the text of what was initially proposed as § 5.371, with minor revisions to improve clarity.

We also propose to add a definition of “Improved Pension payment amount” as paragraph (e), which is “the monthly payment calculated under § 5.421(a)”.

In the definition of “Maximum annual pension rate”, proposed paragraph (f), we changed the reference to § 5.400 from “The various types of maximum annual pension rates are set forth at § 5.400” to “Maximum annual pension rates are described in § 5.400”. Section 5.400 does not “set forth” any rates; it merely refers the reader to title 38, United States Code.

In this revised version of § 5.370, we would add a definition of “net worth in proposed paragraph (g)” as “the value of real and personal property, as calculated under § 5.414”. This is a general definition, and is consistent with common usage of the term; however, it will be useful to provide a definition in this central location of § 5.370, where it will guide readers to the relevant (and more detailed) substantive rules in § 5.414.

In § 5.370, we initially proposed to define “special monthly pension” as:

[A] type of Improved Pension with higher maximum annual pension rates than the basic rates listed in § 5.400(a)(1) and (5). Special monthly pension is based on a veteran's or surviving spouse's disability or disabilities ratable at 60 percent or more, their housebound status, or their need of the aid and attendance of another person in performing their daily living habits.

We propose to revise the definition in proposed paragraph (i) to make it more general; specific entitlement criteria are more appropriately discussed in the substantive rules at §§ 5.390 and 5.391. There is no need to restate those criteria here. We will explicitly note in the definition that claimants for special monthly pension must meet the eligibility criteria for Improved Pension, notwithstanding that this is implied by the definition of special monthly pension as a “type of Improved Pension”.

We propose to delete the initially proposed definition of “surviving child” as unnecessary and redundant of other material in part 5.

§ 5.371 Eligibility and Entitlement Requirements for Improved Pension

We propose to revise § 5.371(a) so that it is in the active voice and so that it specifically refers to special monthly pension, where, in the initially proposed version, it applied only implicitly to special monthly pension. In addition, we propose to delete from paragraph (a) the material that was moved to the definition in § 5.370.

Initially proposed paragraph § 5.371(c) states the general rules for the eligibility requirements to Improved Death Pension for a surviving spouse or surviving child. We propose to add cross-references in § 5.371(c)(1) and (2) to the part 5 regulations relating to status as a surviving spouse, and surviving child.

We propose to clarify paragraph § 5.371(c) by moving the material in initially proposed § 5.371(c)(3) to the beginning of the paragraph. The purpose of the language is to explain that in determining eligibility for Improved Death Pension, it does not matter whether the veteran's death is service-connected.

§ 5.372 Wartime Service Requirements for Improved Pension

We propose to add the word “nonconsecutive” to § 5.372 (b)(2), to illustrate that, unlike the period described in paragraph (b)(1), the days need not be consecutive to meet this requirement. Indeed, if the days were consecutive, the service described in paragraph (b)(2) would meet the requirements of paragraph (b)(1). We do not need to add the word “nonconsecutive” to paragraph (b)(3) because that paragraph explicitly requires two separate periods of service.

Initially proposed § 5.372(b)(4)(ii) provided wartime service if the veteran served for any period of time during a period of war and had a disability “at the time of discharge that in medical judgment would have justified a discharge for disability”. This requirement appears in current § 3.3(a)(3)(ii). In part 5, we will remove the “medical judgment” requirement. Instead, we will require that the veteran Start Printed Page 71119have “had such a service-connected disability at the time of discharge that would have justified discharge.” This change will recognize that in some cases lay evidence may be sufficient to establish the existence of a disability that could have served as a basis for discharge.

In addition, we propose to improve the clarity of the paragraph by specifying that the disability that existed at discharge must be one for which service connection is granted without relying on a presumption. This is consistent with current § 3.3(a)(3)(ii).

§ 5.373 Evidence of Age in Improved Pension Claims

In initially proposed § 5.373, we stated that the regulation applies when age “is material to the decision of an Improved Pension claim”. It is possible to misread this language as a narrowing of the current rule, such that the new rule would apply only when age is outcome determinative. We therefore propose to remove the phrase “the decision of”. As revised, the part 5 rule will be substantively identical to the current rule.

§§ 5.380 Disability Requirements for Improved Disability Pension; 5.381 Permanent and Total Disability Ratings for Improved Disability Pension Purposes; and 5.382 Improved Disability Pension—Combining Disability Ratings

We propose to significantly revise §§ 5.380, 5.381, and 5.382 by combining the initially proposed regulations, removing redundant material, correcting errors, and otherwise improving clarity. In addition, we propose to reserve §§ 5.381 and 5.382, and several other changes as discussed below.

In § 5.380(a), we propose to add guidance on how VA combines disability ratings to determine whether a veteran is permanently and totally disabled for Improved Pension purposes. This guidance was initially contained in proposed § 5.382(b). We now propose to move § 5.382(b) to § 5.380(a) because it is more logical to state that provision in § 5.380(a) along with the other disability requirements. We also propose to eliminate § 5.382(a) because in the case, as here, where a veteran has multiple disabilities, all disabilities are combined in the same manner, regardless of whether the disability is service or non-service connected. We now propose to mark § 5.382 as reserved.

In initially proposed § 5.380, we failed to explain our omission of current 38 CFR 3.342(b)(5). We consider that paragraph to be a comingled authority citation and cross reference and we therefore believe it is unnecessary in part 5.

Initially proposed § 5.381(b)(2), which is now § 5.380(c)(2), consisted of seven sentences that were not logically organized and were not stated clearly. We propose to reorganize the material. In sentence one, we propose to replace “consistent with the evidence in the case” with “that is shown by the evidence”, because that phrase has the same meaning as “consistent with the evidence” and is easier for the public to understand. For the same reason, we propose to use the phrase “that is shown by the evidence” in paragraphs (c)(2)(i) through (iii). The remaining material will be divided into three separate paragraphs, § 5.380(c)(2)(i) through (iii), to distinguish between generally applicable rules, rules that apply to cases involving disabilities that require hospitalization for indefinite periods, and special rules that apply only in tuberculosis cases.

In what was initially proposed as § 5.381(b)(3), which is now proposed § 5.380(c)(3), we propose to remove language requiring VA to give “special consideration” to veterans under 40 years of age. As revised, the regulation will describe how VA determines the permanence of total disability in such veterans, without suggesting that VA treats these veterans in a “special” way, that is, without suggesting that these veterans are not entitled to the same treatment as any other veteran.

In initially proposed § 5.381(b)(4), which is now § 5.380(c)(4), we propose to change “presumed” to “considered” to be consistent with the current regulation, § 3.342(b)(4), and the statute, 38 U.S.C. 1718(g). “Considered” is more favorable to veterans because it establishes a rule rather than a rebuttable presumption.

In initially proposed § 5.381(b)(4)(i), which is now § 5.380(c)(4)(i), we repeated a typographical error from § 3.342(b)(3)(i) by using “member-employer”. The correct term is “member-employee”. Compare 50 FR 36632, Sept. 9, 1985 (proposed amendment of § 3.342(b)(4) using “member-employee”) with 50 FR 52775, Dec. 26, 1985 (final rule amending § 3.342(b)(4) using “member-employer”).

In initially proposed § 5.381(b)(5), which is now § 5.380(c)(5), we had cross-referenced a part 5 regulation that would be based on current 38 CFR 3.321(b)(2) (concerning extra-schedular ratings for pension). We have since decided against establishing a separate regulation based on that current rule. Thus, in the revised § 5.380(c)(5), we propose to include a rule equivalent to current 38 CFR 3.321(b)(2).

§ 5.383 Effective Dates of Awards of Improved Disability Pension

We have determined that initially proposed § 5.383(a)(2) is an exception to the general effective date rule for Improved Disability Pension. It deals with previously denied claims, and we propose to name it as addressing such claims and redesignate it as paragraph (b). What was previously proposed paragraph (b) will now be proposed paragraph (c).

We propose to revise § 5.383(b)(3), eliminating the description of an incapacitating disability, which was circular and confusing. The revised language will also affirmatively state that a disability that requires extensive hospitalization is an incapacitating disability for Improved Disability Pension purposes, whereas the initially proposed language appeared to establish a rebuttable presumption to the same effect. Compared to current § 3.400(b)(1)(ii)(B) and to the initially proposed rule, the revised rule is easier to understand and apply. Consequently, this will be a change from both part 3 and the initially proposed rule, but it will result in a clearer regulation and will not lead to later effective dates of awards to disabled veterans.

§ 5.390 Special Monthly Pension for a Veteran or Surviving Spouse Based on the Need for Regular Aid and Attendance

Initially proposed § 5.390 was titled, “Special monthly pension for veterans and surviving spouses at the aid and attendance rate.” We propose to revise the title to read, “Special monthly pension for a veteran or surviving spouse based on the need for regular aid and attendance.” The revision is in part to help clarify that special monthly pension is essentially Improved Pension paid at a higher maximum annual pension rate. The revision also makes the reference to regular aid and attendance consistent with our terminology in the rest of part 5.

We propose to make significant clarifications, eliminate redundancy, and otherwise simplify the introductory paragraph, proposed as § 5.390(a).

In initially proposed § 5.390(b)(4), which is now § 5.390(d), we had cross-referenced § 5.333 for the rules to govern factual need for aid and attendance. We propose to change this citation to § 5.320 because we propose to renumber the regulation.Start Printed Page 71120

§ 5.391 Special Monthly Pension for a Veteran or Surviving Spouse At the housebound rate

In initially proposed part 5, there are several regulations that define “permanently housebound” as it applies to the veteran and the surviving spouse. To ensure consistency throughout part 5, we propose to change the definition in § 5.391(a)(2), to the language used in proposed § 5.511(c). Proposed paragraph (a)(2) will now define the term to mean that the veteran is substantially confined to his or her residence (ward or clinical areas, if institutionalized) and immediate premises because of a disability or disabilities, and that it is reasonably certain that such disability or disabilities will not improve during the veteran's lifetime.

Initially proposed § 5.391(b) was a new provision intended to reconcile current VA regulations, which have not been altered since being promulgated in 1979, with Hartness v. Nicholson, 20 Vet. App. 216 (2006). In that case, the United States Court of Appeals for Veterans Claims (CAVC) stated that current § 3.351(d) does not consider the interpretive effects of 38 U. S.C. 1513(a), first enacted in 2001, on 38 U.S.C. 1521(e). See Hartness, 20 Vet. App. at 221. The CAVC held that, according to these statutes, a veteran who is otherwise eligible for Improved Pension based on being age 65 or older, and who is not in need of regular aid and attendance, is entitled to special monthly pension at the housebound rate if he or she has a disability ratable at 60 percent or more or is considered permanently housebound. See Hartness, 20 Vet. App. at 221-22. The court held that such a veteran, unlike a veteran who is under 65 years old, need not have a disability that is permanent and total. See id.

However, in 2012, the U.S. Court of Appeals for the Federal Circuit overturned Hartness. In Chandler v. Shinseki, 676 F.3d 1045 (Fed. Cir. 2012), the court stated:

This court concludes § 1513(a) only eliminates the permanent and total disability requirement in § 1521(a), which applies to all § 1521 subsections. The language of section 1521 is structured so that subsection (a) is a threshold requirement and the other subsections recite additional requirements for a veteran to qualify for different pension rates. As such, § 1521's language and structure, when viewed in light of the statute's purpose and meaning, suggest that the parenthetical exclusion in section 1513(a) refers only to the threshold requirement found in section 1521(a) for pension benefits under § 1521 and not to the additional [housebound] requirements imposed by § 1521(e). slip op at 11.

We therefore propose to delete § 5.391(b) and reorder the section paragraphs accordingly.

§ 5.392 Effective Dates of Awards of Special Monthly Pension

Although it was technically accurate, initially proposed § 5.392, “Effective dates of awards of special monthly pension”, was unnecessarily complex. In paragraph (a), we had stated the general rule that the effective date of an award of special monthly pension was the date VA received the claim for special monthly pension or the date entitlement arose, whichever date is later. This is essentially the same as the effective date of an award of Improved Pension under §§ 5.383 and 5.431, except that it does not address the eligibility or entitlement criteria for Improved Pension. It is unnecessary for the special monthly pension effective date regulation to address such criteria, because the claimant must have met those criteria as a prerequisite for the award. Moreover, in cases where a claimant who was not already receiving Improved Pension is awarded special monthly pension, the claim for Improved Pension constitutes the claim for special monthly pension, because special monthly pension is a form of Improved Pension paid at a higher maximum annual pension rate. Thus, the award of special monthly pension is predicated upon the same rules that govern the award of Improved Pension, and the award of special monthly pension will be effective on the same date as the award of Improved Pension in every situation except where entitlement to special monthly pension arose after the date of entitlement to Improved Pension. This could occur in a case where an Improved Pension beneficiary files a new claim for special monthly pension, or where a claimant seeking Improved Pension incurs, after filing the Improved Pension claim, additional disability that makes him or her eligible for special monthly pension. Hence, we propose to revise the rule to simply state that the effective date of an award of special monthly pension will be the later of either the effective date of the award of Improved Pension under § 5.383 or the award of Improved Death Pension under § 5.431, or the date entitlement to special monthly pension arose.

In initially proposed § 5.392 we failed to include the provisions of 38 CFR 3.402(c)(1), concerning aid and attendance, and housebound benefits payable to a surviving spouse. We propose to correct this omission by adding a reference to proposed § 5.431, “Effective dates of Improved Death Pension”. We also omitted the provisions of § 3.402(c)(2), concerning concurrent receipt of Improved Pension and Improved Death Pension. We propose to correct this omission by adding a new paragraph (b).

In initially proposed § 5.392(b), we stated an exception applicable “when an award of Improved Pension is effective retroactively”. This refers to the retroactive provisions in § 5.383(b). By referencing § 5.383 in its entirety in § 5.392(a), the simplified version of paragraph (a) will eliminate the need for this exception.

§ 5.400 Maximum Annual Pension Rates for a Veteran, Surviving Spouse, or Surviving Child

After reviewing initially proposed § 5.400, we propose to make several changes, including redesignating due to the removal and revision of certain paragraphs, described below.

We determined that it would be helpful for readers to know that the rates of pension are listed on the Internet. We therefore propose to add the following sentence to what is now the introductory paragraph (which, as initially proposed, was designated as paragraph (a)): “Current and historical maximum annual rates can be found on the Internet at http://www.va.gov or are available from any Veterans Service Center or Pension Management Center.” We propose to include “Pension Management Center” because most pension cases are processed in these three centers. We propose to remove from that paragraph language related to 38 U.S.C. 5312 because it was redundant of § 5.401. For similar reasons, we propose to add “Pension Management Center” to initially proposed § 5.471(a).

Also in reviewing this section, we found that what is now designated as paragraph (e) could be simplified to refer only to a surviving spouse. The authorizing statute for that paragraph addresses the different rates based on whether or not the spouse has custody of a child of the deceased veteran.

We propose to delete initially proposed § 5.400(b), pertaining to World War I veterans, because VA does not have any Improved Pensioners on its rolls who served in World War I and does not expect to receive any new claims from such veterans. If any claims are received, they may be adjudicated in accordance with 38 U.S.C. 1521(g), which provides the higher rate for such veterans.

Finally, we propose to move the information that had been contained in initially proposed § 5.400(c), concerning higher maximum annual pension rates Start Printed Page 71121based on the number of dependents, to the second sentence of what is now the introductory paragraph. We were concerned that the separate paragraph would lead a reader to think that paragraph (c) was an exception to the information in the introductory paragraph when, in fact, the statutes referred to in the introductory paragraph provide the higher rates.

§ 5.401 Automatic Adjustment of Maximum Annual Pension Rates

We propose to omit a counterpart to § 3.23(c) from § 5.401. The preamble to initially proposed §  5.401(b), 72 FR 54776, 54782-54783 (Sept. 26, 2007), stated that it derives, in part, from §  3.23(c), which provides for publication of increases in the rate of pension paid to Mexican border period and World War I veterans. As explained in the initial, 72 FR 54776, 54782, and current preambles for §  5.400, part 5 will not repeat 3.23(c) because it is obsolete. Consequently, though proposed 5.401(b) restates the requirement to publish increases in the rate of certain benefits, VA will not publish increased in the rate for veterans of the Mexican border period or World War I, and §  5.401(b) does not partly derive from §  3.23(c).

§ 5.410 Countable Annual Income

We propose to clarify § 5.410(a)(1) and make its phrasing parallel in structure to paragraph (a)(2) for consistency.

In initially proposed § 5.410(b)(3), we stated that: “The income of a surviving child includes the income of that child's custodial parent and the income of other surviving children as described in § 5.435, `Calculating annual Improved Pension amounts for surviving children.' ” The preamble to the initially proposed rule explained that the rule regarding whose income must be included in a surviving child's income was “too complex to be included in this regulation, so we propose to include a cross-reference to proposed § 5.435”. However, § 5.435 requires including the income of the surviving child's custodian, irrespective of whether the custodian is a “custodial parent”. Thus, the reference in § 5.410(b)(3) to “custodial parent” was improperly narrow. We therefore propose to change the term “custodial parent” to “custodian”. This change corrects the erroneous reference to a “custodial parent” in the proposed rule. We also propose to clarify in paragraph (b)(3) that the income of a surviving child includes that child's income, to make the provision consistent with paragraphs (b)(1) and (2).

We propose to add paragraphs (c)(3)(i) and (ii) to address overlapping irregular income. This type of income was not previously addressed. This change follows current VA practice.

§ 5.411 Counting a Child's Income for Improved Pension Payable to a Child's Parent

In reviewing initially proposed § 5.411, we determined that this section could be much clearer, and we also identified several problems with the initially proposed regulation.

In paragraph (a), we propose to now state the general rule, which is that “VA counts as income to the parent-beneficiary (that is, the veteran or surviving spouse receiving Improved Pension) the annual income of every child of the veteran who is in the parent-beneficiary's custody”. In current § 3.23(d)(4) and (5), this rule is phrased as a presumption: “There is a rebuttable presumption that all of such a child's income is available to or for the [parent-beneficiary].” Using a presumption makes this rule far more complicated than it needs to be. Moreover, neither the current regulation nor the initially proposed part 5 regulation clearly stated that the parent-beneficiary must specifically seek to rebut the presumption. Thus, in § 5.411(a), we propose to state that the child's income is counted as income to the parent-beneficiary unless the parent-beneficiary files a claim to exclude all or part of the child's income.

We also, in paragraph (a), propose to establish a duty on the part of VA to provide the proper VA form to describe the bases for the exclusions that follow. VA uses VA Form 21-0571, “Application For Exclusion Of Children's Income”, to gather the information needed to calculate whether a parent-beneficiary qualifies for an exclusion. Much of the specificity that we have added to § 5.411 in this rulemaking is derived from that form, and using that form simplifies the process and greatly reduces the burden of seeking an exclusion under this rule.

In initially proposed § 5.411(b), we set forth the first basis for an exclusion of the child's income, which is that the income is not considered available for expenses necessary for reasonable family maintenance. We propose to change the term “reasonably available” to “considered available” for clarity. This rule is similar to the current and initially proposed rules, except that in paragraph (b)(2) we provide specific examples of common ways to establish that income is not considered available. These examples are derived from current VA practice and VA Form 21-0571.

In § 5.411(c), we describe the hardship exclusion. The calculation required under paragraphs (c)(1) through (5) was included in the initially proposed rule and is set forth in current § 3.272(m), but it is not clearly described as a mathematical formula. This subsequently proposed rule more clearly shows how VA calculates the amount of the hardship exclusion.

In paragraph (b)(1), we propose to add that annual expenses cannot include “expenses for items such as luxuries, gambling, and investments”. This guidance is based on long-standing VA practice and will clarify for VA employees what types of expenditures are, or are not, necessary to support a reasonable quality of life.

Finally, we propose to move what was initially proposed as § 5.411(c), “Child's earned income”, to § 5.412(a). This provision was mistakenly included in § 5.411, but it applied, by its terms, to calculating a child's income in all situations. Hence, we have moved it to § 5.412(a), where it is more appropriately located. We propose to redesignate the paragraphs of initially proposed § 5.412 to accommodate the new paragraph (a).

§ 5.412 Income Exclusions for Calculating Countable Annual Income

In Osborne v. Nicholson, 21 Vet. App. 223 (2007), the court held that “pursuant to § 3.272(e), the receipt of accrued interest on the redemption of a savings bond is `profit realized from the disposition of . . . personal property' and is therefore excluded from income for VA pension purposes.” A GC Opinion was issued based on this ruling, VAOPGCPREC 2-2010 (May 10, 2010). The GC Opinion stated that the holding of Osborne v. Nicholson depended not on the political entity that issued the bond, but rather on the terms of the bond. The Opinion further stated that “If a bond requires redemption for the payment of accrued interest . . . then the statutory exclusion for profit realized from the disposition of real or personal property applies. If accrued interest is payable on the bond without redemption, then it does not qualify for the exclusion.” This income exclusion also applies to interest received from the surrender of a life insurance policy. However, if a bond pays interest semiannually without the redemption of such bond, VA will consider the interest received as income. The GC Opinion also held that the exclusion of interest received from the redemption of a bond applies to income calculations in parents' dependency and indemnity Start Printed Page 71122compensation (DIC), Improved Pension, and Section 306 Pension. Section 3.262(k) excludes from income the accrued interest received from the redemption of a savings bond for purposes of Section 306 Pension and parents' DIC to the extent that § 3.272(e) excludes such income in Improved Pension. Conversely, there is no profit exclusion for Old-Law Pension in § 3.262(k)(3). VA will therefore consider as income the interest received from the surrender of a bond or life insurance in Old-Law Pension. Although not specifically stated in the Opinion, we believe that this exclusion also applies in the income calculation for the dependency of a parent for purposes of disability compensation. This interpretation is considered to be just and consistent with the intent of the statute.

We therefore propose to incorporate the holding of the GC Opinion in proposed § 5.412(e). We also propose to include similar changes in §§ 5.302(d), “General income rules—parent's dependency”, 5.472, “Evaluation of income for Old-Law Pension and Section 306 Pension”, and 5.533, “Income not counted for parent's dependency and indemnity compensation.”

In initially proposing this subpart, we inadvertently omitted § 3.272(x) (listing “lump-sum proceeds of any life insurance policy on a veteran” as an item VA will not count when calculating countable income for Improved Pension), so we propose to insert § 5.412(l)(8) as its part 5 equivalent.

We propose to move the broad provision proposed as § 5.412(k)(8) to § 5.412(m).

Section 604 of Public Law 111-275, 124 Stat. 2864, 2885 (2010) amended 38 U.S.C. 1503(a) to exclude payment of a monetary amount of up to $5,000 to a veteran from a State or municipality that is paid as a veterans benefit due to injury or disease from countable income for purposes of Improved Pension. We propose to add this exclusion as § 5.412(n).

§ 5.413 Income Deductions for Calculating Adjusted Annual Income

In reviewing initially proposed § 5.413, we determined that this section could be clarified. We propose to revise the language, particularly in paragraph (b), to more accurately reflect current policy. These changes will not alter the legal effect of this section. In paragraph (b), we propose to add a cross-reference to § 5.707, “Deductible Medical Expenses,” to be consistent with § 5.474, “Deductible Expenses for Section 306 Pension Only”, and § 5.532, “Deductions from income for parent's dependency and indemnity compensation.”

We propose to revise paragraphs (b)(2)(i) and (ii). As initially proposed, the provision could be interpreted to permit deductions for a member of the household “for whom there is a moral or legal obligation of support” on the part of the beneficiary, irrespective of whether that person was a relative of the beneficiary. The part 3 rule, located in § 3.272(g)(1) and (2), requires that the person be both a relative and a member of the household. We propose to revise § 5.413(b)(2) so that it accords with the current rule. We also propose to correct an error in initially proposed paragraph (b)(2)(i). The initially proposed provision and the current rule, § 3.272(g)(1)(i) and (ii), refer incorrectly to the veteran's “spouse” instead of referring to the veteran's “dependent spouse”.

In paragraphs (c)(2)(ii) and (iii), we propose to remove a reference to “just debts” because “just debts” are included in the definition of final expenses set forth in paragraph (c)(1).

We propose to remove the reference to chapter 51 and § 5.551(e) in § 5.413(c)(3)(i). The current rule, § 3.272(h)(1)(ii), and the authorizing statute, 38 U.S.C. 1503(a)(3), only reference “expenses not reimbursed under chapter 23 of this title”. We propose to revise § 5.413(c)(3)(i) so that it accords with them.

We also propose to clarify § 5.413(c)(3)(ii) to state that if “The expenses of a veteran's last illness were allowed as a medical expense deduction on the veteran's pension or parents' dependency and indemnity compensation (DIC) account during the veteran's lifetime”, then said expenses will not be deducted from a surviving spouse's award. This change will follow current VA practice.

Subsequent to the publication of proposed § 5.413, section 509 of Public Law 112-154 (2012) amended 38 U.S.C. 1503(a) by adding new provisions which set forth in detail what casualty loss reimbursements are excludable from countable income for purposes of VA Improved Pension. We propose to include these new provisions in § 5.413(d).

We propose to move § 5.413(e), concerning the treatment of gambling losses, to § 5.410(g), because it primarily concerns counting income from gambling. Initially proposed paragraph (f) of this section is redesignated paragraph (e), accordingly. Initially proposed § 5.413(g), which is now § 5.413(f), used the term “profession”. The regulation meant a professional practice. We are now clarifying this term.

§ 5.414 Net Worth Determinations for Improved Pension

In reviewing initially proposed § 5.414, we determined that this section could be clarified by the reorganization and removal of unnecessary verbiage. We also propose to provide more detailed explanations of when a dependent's net worth is considered and how net worth can bar Improved Pension.

In what is now paragraph (b)(1) (initially proposed paragraph (a)), we propose to add the word “primary” before residence to clarify that VA excludes from net worth only the value of the residence where the claimant or beneficiary usually lives, not the value of other properties where they may occasionally reside. A claimant or beneficiary can only have one primary residence at any given time. The term is well understood because a primary residence is considered as a legal residence for purpose of income tax and/or acquiring a mortgage. We also propose to clarify that the primary residence will not be counted as net worth simply because the veteran has moved into a nursing home.

In what is now paragraph (b)(3) (initially proposed paragraph (c)(3)), we propose to clarify that the “child educational exclusion” applies whether the child is a dependent or a claimant in his or her own right.

In § 5.414(d)(2)(i), we propose to clarify that a claimant's adjusted annual income includes the adjusted annual income of any person whose net worth is considered part of the claimant's net worth. These rules were not explicit in the initially proposed rule, but they comport with current VA practice and policy and are not inconsistent with the initially proposed rule.

In initially proposed § 5.414(d), we determined that there was a lack of criteria for determining whether net worth is a bar for benefits. To eliminate ambiguity, we propose to establish an $80,000 guideline and determined that “it is reasonable to expect that part of the claimant's net worth should be used for the claimant's living expenses” when the net worth is $80,000 or more. Having a specific dollar amount ensures uniformity and fairness of VA decision-making throughout the country. This change is consistent with current practice.

We also propose to revise § 5.414(e) for clarity.Start Printed Page 71123

§ 5.415 Effective Dates of Changes in Improved Pension Benefits Based on Changes in Net Worth

We had stated in § 5.415(a) that an increase in a child's net worth requires VA to reduce the payment amount of Improved Pension. However, if the child's net worth is increased, the removal of his dependency from the beneficiary's award may cause an increase in payment. Such a situation may occur when the dependent child has income and the removal of the child's dependency and his or her income causes an increase in the beneficiary's award. We propose to clarify that regardless of whether or not the removal of such child's dependency results in a higher pension rate, the effective date based on the change in net worth is the first day of the year after the year that net worth increased. This change is consistent with current practice.

§ 5.416 Persons Considered as Dependents for Improved Pension

We propose to remove the sentence, “The child need not be living with the veteran or surviving spouse to be in custody”, from initially proposed § 5.416(b)(1) because the same information is provided in what was initially proposed § 5.417(d), now the definition of “custody of a child” in proposed § 5.1. The rule is appropriately located in that definition. It is not necessary to § 5.416, which pertains to persons considered as dependents.

We also propose to change “reasonably contributes” to “provides reasonable contributions” in both paragraphs (a)(3) and (b)(2), because it is the amount of the contributions that must be reasonable, not the way that the person provides those contributions.

§ 5.417 Child Custody for Purposes of Determining Dependency for Improved Pension

We propose to move the definitions of “custody” and “legal responsibility” to proposed § 5.1, defining “custody of a child”. The remainder of this regulation contains four presumptions for determining dependency. We propose to simplify the regulation to eliminate redundancy without altering its meaning.

§ 5.420 Reporting Periods for Improved Pension

In initially proposed § 5.420, we stated, “When calculating adjusted annual income, VA counts income that is anticipated or received during a specific period, called a `reporting period.' ” We have determined that it would be helpful for readers to have a simple definition of “reporting period” so we propose to insert the following definition (based on § 3.661, the current rule regarding income reporting): “A reporting period is a time period established by VA during which a claimant or beneficiary must report to VA all income, net worth, and adjustments to income.”

We propose to revise § 5.420(a) to include that a claimant or beneficiary may report a change in income or net worth when the change occurs. The claimant or beneficiary does not have to wait until the beginning of the next reporting period to report the change. This change is consistent with current VA practice.

§ 5.422 Effective Dates of Changes to Annual Improved Pension Payment Amounts Due to a Change in Income

In paragraphs (b)(2) and (3) of initially proposed § 5.422, we used the term “required evidence” without explaining what the evidence should prove. To resolve this potential ambiguity, we propose to revise paragraph (b)(2) by replacing “required evidence” with “evidence showing the dependency”. Likewise, we propose to revise (b)(3) by replacing “required evidence” with “evidence showing the loss of a dependent”.

§ 5.423 Improved Pension Determinations When Expected Annual Income Is Uncertain

We propose to provide a definition for “expected annual income” in the first sentence of § 5.423(a). We propose to define the term as “the annual income a claimant or beneficiary anticipates receiving during a given reporting period.”

We propose to remove all references in this subpart to the term “anticipated income” and propose to replace it with “expected income”. This proposed change will be for consistency purposes.

§ 5.424 Time Limits To Establish Entitlement to Improved Pension or To Increase the Annual Improved Pension Amount Based on Income

In reviewing initially proposed § 5.424, we determined that this section can be clarified and shortened by minor reorganization and the removal of unnecessary verbiage. We propose to make these changes.

§ 5.430 Marriage Date Requirements for Improved Death Pension

Initially proposed § 5.430(a)(2)(i) referred to veterans of the Mexican Border period and World War I. We propose to remove these references because there are no longer any surviving veterans of these war periods and VA does not anticipate receiving any more Improved Death Pension claims from the surviving spouses of these deceased veterans. Moreover, if VA does receive such a claim, it could process the claim under the controlling statutes, 38 U.S.C. 103(b) and 1541(f).

We also propose to remove initially proposed § 5.430(b), which had concerned the marriage-date requirements of a surviving spouse. That paragraph was based on 38 U.S.C. 103(b), which is not limited to Improved Pension. We propose to move the rule to § 5.200, “Surviving spouse: requirement of valid marriage to veteran.”

§ 5.432 Deemed Valid Marriages and Contested Claims for Improved Death Pension

In §§ 5.432 and 5.433, we propose to delete the term “legal” as it was used in the initially proposed rule to describe a surviving spouse. Although there is no explicit definition of “legal surviving spouse” in current part 3, the term is used to denote a spouse who was legally married to the veteran at the time of the veteran's death as contrasted with a deemed valid spouse. This distinction has no legal significance in § 5.432 or § 5.433. For the same reason, we propose to delete the term “lawful” before “surviving spouse” in § 5.539.

§ 5.434 Award or Discontinuance of Award of Improved Death Pension to a Surviving Spouse Where Improved Death Pension Payments to a Child Are Involved

In initially proposed § 5.434(a)(3) we stated:

When a surviving spouse establishes eligibility for Improved Death Pension but is not entitled because his or her adjusted annual income is greater than the maximum annual pension rate or because his or her net worth bars entitlement, VA will discontinue the child's pension award effective the first day of the month after the month for which VA last paid benefits to the surviving spouse.

Consistent with current §§ 3.503(a)(9) and 3.657(b)(1), the reference to the surviving spouse at the end of § 5.434(a)(3) should refer instead to the child. We now propose to correct this error.

In addition, we propose to reorganize § 5.434(b) to improve clarity.

§ 5.435 Calculating Annual Improved Pension Amounts for a Surviving Child

In initially proposed § 5.435(a) we parenthetically defined the term “personal custodian” as “a person legally responsible for the child's support”. We propose to add a Start Printed Page 71124definition of “custody of a child” as § 5.1. Therefore, the definition initially proposed in this section is superfluous and we propose to remove it.

B. Elections of Improved Pension; Old-Law and Section 306 Pension AL83

In a document published in the Federal Register on December 27, 2004, we proposed to publish in a new 38 CFR part 5 VA regulations governing Old-Law Pension, Section 306 Pension, and elections of Improved Pension. 69 FR 77578. The title of this proposed rulemaking was “Elections of Improved Pension: Old-Law and Section 306 Pension” (RIN: AL83). The proposed regulations were based on current regulations in 38 CFR part 3, but were revised to reflect plain English and updated to reflect current practice. We provided a 60 day comment period that ended on February 25, 2005. We received submissions from two commenters.

Terminology

We mean to add the word “Pension” after “Old-Law” and “Section 306” whenever these two pension programs are mentioned together in a single sentence. For example, “Old-Law and Section 306 Pension” will be rewritten as “Old-Law Pension and Section 306 Pension.” This will help readers understand that these two pension benefits are separate and distinct programs.

For consistency purposes in describing whether particular potential sources of revenue are considered by VA in calculating a beneficiary's income or net worth, we propose to replace the word “include” with “count” (or with a commensurate substitute) and “exclude” with “does not count” (or with a commensurate substitute).

Comment Relating to a Different Portion of This Rulemaking

One commenter suggested that a rating decision that reduces a rating during a period of hospitalization should be considered void if notice of a prior rating decision had not been sent to a veteran at the veteran's latest address of record. The commenter used her husband's case as an example, stating that his 1990 reduction should be void because she alleges that VA did not provide her husband with notice of a 1971 rating decision. This comment deals with defective notice and the effect it has on the finality of decisions. Accordingly, this comment will be discussed with other comments received for RIN 2900-AL87, “General Provisions”, in subpart A of this part, which contains VA's definition of a “Final decision” in proposed § 5.1.

§ 5.461 Electing Improved Pension Instead of Old-Law Pension or Section 306 Pension

In the initially proposed rule, we proposed to include § 5.461, “Electing Improved Pension instead of Old-Law or Section 306 Pension”, in subpart F of part 5. However, upon further consideration, it would be more appropriate to place this regulation in subpart L, “Payments and Adjustments to Payments”, along with other rules on elections of veterans benefits as § 5.758. Hence, we propose to include § 5.461 in our proposed subpart L, initially published in the Federal Register on December 27, 2004. 69 FR 77578.

§ 5.472 Rating of Income for Old-Law Pension and Section 306 Pension

Initially proposed § 5.472(b)(2) defined “payments” as “cash and cash equivalents (such as goods and other negotiable instruments) . . . ” We propose to revise our definition by replacing the term “goods” with “checks”. This change is made in order to be consistent with our definition of “payments” in § 5.370(h) and § 5.531(b).

§ 5.475 Gaining or Losing a Dependent for Old-Law Pension and Section 306 Pension

For consistency purposes, we propose to revise the heading and the regulatory text in § 5.475(b)(2) by replacing “on or before December 31, 1978” with “before January 1, 1979”. This change will improve clarity in the application of effective dates and is consistent with the rest of part 5.

§ 5.477 Effective Dates of Reductions and Discontinuances of Old-Law Pension and Section 306 Pension

In § 5.477(b), we propose to delete the reference to “§§ 3.500 through 3.503” from the regulatory text and replace it with a reference to § 5.705, the part 5 regulation that lists all of the part 5 regulations governing the effective dates of reductions and discontinuances. We propose to revise the regulatory text by inserting the words “appropriate” and “as specified” in order to notify readers that the provisions in § 5.705 will indicate which effective dates, other than those stated in paragraph (a), are applicable to a particular case.

§ 5.478 Time Limit To Establish Continuing Entitlement to Old-Law Pension or Section 306 Pension

We propose to revise the regulatory text in § 5.478(a), Expected income appears to exceed income limit, by inserting the phrase “for that calendar year” after “annual income limit” and inserting the word “calendar” before “year effective January 1”. These revisions will remove ambiguity and clarify that VA measures income in calendar-year units.

Deletion of Withholding Provision, Formerly Under 38 CFR 3.260(b), Computation of Income

In addition, we note that under 38 CFR 3.260(b) (the current rule upon which § 5.478(a) is based), VA has the authority to withhold payments if that income will exceed the statutory limit. However, this withholding provision only applied to new claims for Old-Law Pension and Section 306 Pension. Since such claims have been barred by statute since 1979 (see Public Law 95-588, sec. 306(a), 92 Stat. 2508 (1978)), there is no need to include the provision in part 5.

XII. Subpart G: Dependency and Indemnity Compensation, Death Compensation, Accrued Benefits, and Special Rules Applicable Upon Death of a Beneficiary

A. Dependency and Indemnity Compensation Benefits AL89

In a document published in the Federal Register on October 21, 2005, we proposed to revise Department of Veterans Affairs (VA) regulations governing dependency and indemnity compensation (DIC) benefits, to be published in a new 38 CFR part 5. 70 FR 61326. We provided a 60-day comment period that ended December 21, 2005. We received submissions from four commenters: Disabled American Veterans, Vietnam Veterans of America, National Organization of Veterans' Advocates, and one from a member of the general public.

§ 5.500 Proof of Death

Initially proposed § 5.500 described the types of evidence VA will accept as proof of death. We propose to revise this provision to explain that, where the rule lists more than one type of evidence that VA will accept as proof of death, VA requires the first-listed type of evidence, if obtainable. If the first-listed document is not obtainable, VA will accept the next-listed type of evidence that is obtainable. This clarification reflects VA's established practice. With respect to matters that are ordinarily documented by official public records, such as death, VA's long-standing practice is to require the official records that VA considers most reliable to establish those facts, if such records are available. We believe that it is helpful to state this principle in proposed Start Printed Page 71125§ 5.500 and we propose to revise it accordingly. In accordance with its duty to assist, VA will assist claimants as necessary in seeking to obtain the types of evidence needed to establish the fact of death.

§ 5.504 Service-Connected Cause of Death

All four of the comments received concerned the provisions of initially proposed § 5.504. This proposed section defined a service-connected disability for purposes of determining entitlement to VA death benefits, and provided the rules for determining if a veteran's death is service connected. The AL89 NPRM, omitted the following sentence from 38 CFR 3.312(a), “[t]he issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports.” This language is unnecessary in proposed § 5.504 because it mainly restates the generally applicable principle that VA decisions will be based on a review of the entire record. See 38 U.S.C. 5107(b) and 38 CFR 3.102. We have stated this in proposed § 5.4(b), “Claims adjudication polices”. Regarding avoiding “speculation”, we have stated this concept in proposed § 5.3(b)(6). Regarding the “exercise of sound judgment”, and conducting a “careful analysis”, these duties are inherent in any adjudication process and where a claimant disagrees with the judgment or analysis of a VA adjudicator, he or she may appeal the decision. We therefore believe it is unnecessary to include this language in our regulations.

One commenter was concerned with the provision in initially proposed § 5.504(b)(1)(ii) that states, “[f]or purposes of this section, VA will deem a sudden death in service from trauma to have been preceded by disability from the trauma.” This commenter stated that the sentence we initially proposed “is unnecessarily logically convoluted and restrictive, is legally insufficient, and is in fact altogether unnecessary.” He suggests as alternative language, “[f]or purposes of this section, a death in service is service-connected [sic], provided the death was in line of duty and was not due to the servicemember's own willful misconduct.”

We agree in part with the commenter's concerns. Part of this sentence is somewhat convoluted and could be read as restrictive. We propose to revise the sentence for the reasons explained in the following paragraphs.

The purpose of this sentence in the proposed rule is to preclude the interpretation that a traumatic death in service is so sudden that it does not produce a disability before death. This provision is necessary because Title 38 of the United States Code requires that to be service-connected, a death in service must result from a disability incurred or aggravated in service. “The term 'service-connected' means . . . that the death resulted from a disability incurred or aggravated, in line of duty in the active military, naval, or air service”, 38 U.S.C. 101(16). For a surviving spouse or dependent to be eligible for many VA benefits due to a servicemember's death in service, the person's death must be a result of a disability “incurred or aggravated, in line of duty in the active military, naval, or air service”. 38 U.S.C. 101(16); see also 38 U.S.C. 1310, 2307, 3500, and 3701.

We agree with the commenter that the sentence may be construed to be restrictive if not read carefully. This is due primarily to use of the words “trauma” and “sudden”. Accordingly, we propose to remove the phrases “from trauma” and “from the trauma” and the word “sudden” in the subject sentence in proposed § 5.504(b)(1)(ii).

The revised proposed sentence now reads, “[f]or purposes of this section, VA will presume that a death that occurred in line of duty was preceded by disability.” This will make clear VA's intent that the presumption applies to all deaths that occur in line of duty. We substituted “line of duty” for “in service” to reflect the requirement in 38 U.S.C. 105 and 1110 that disability must be incurred in the line of duty in order to be service connected.

Three commenters expressed concern with the provisions of initially proposed § 5.504(c), regarding service connection for the cause of death when the service-connected disability hastens death. The commenters stated that the proposed revisions in § 5.504 were more restrictive than the provisions in current 38 CFR 3.312. To avoid such a misinterpretation, we are retaining the provisions of § 3.312(c). Accordingly, we are inserting the exact wording of § 3.312(c) into proposed § 5.504(c)(2).

§ 5.510 Dependency and Indemnity Compensation—Basic Entitlement

Initially proposed § 5.510 stated that in order to be entitled to dependency and indemnity compensation a survivor of the veteran “must be otherwise qualified” for this benefit. We propose to delete the terms “otherwise qualified” and “qualified” from proposed § 5.510. To say that a survivor of a veteran must be qualified is redundant of other VA provisions that state the requirements that must be met in order to be considered a dependent of the deceased veteran.

In proposed § 5.510(b)(2), to be consistent with the Federal Register Document Drafting Handbook, page 1-19, we propose to change the order of the references to list the United States Code first. In addition, we propose to correct the authority citation at the end of proposed § 5.510.

§ 5.511 Special Monthly Dependency and Indemnity Compensation

We propose to revise initially proposed § 5.511(a) to clarify that entitlement to this benefit is determined based on whether the surviving spouse or parent needs regular aid and attendance. Determinations of the need for aid and attendance will be made under the criteria in proposed § 5.320.

§ 5.520 Dependency and Indemnity Compensation—Time of Marriage Requirements for Surviving Spouses

We propose to revise initially proposed § 5.520(b)(1)(iii) and (b)(2)(ii) by adding the words, “was born to them” between “marriage or” and “before the marriage” in both places it appears. These changes are made to ensure that readers understand that the child VA is referring to is a child of a veteran and spouse, not a veteran's stepchild. This is the same wording used in part 3.

In the NPRM to this rulemaking we stated that “Proposed § 5.520 is based on portions of current § 3.54 and applicable statutory provisions. . .” However, it is also based on § 3.22(d), which is substantially the same as § 3.54.

§§ 5.521 Dependency and Indemnity Compensation Benefits for Survivors of Certain Veterans Rated Totally Disabled at Time of Death, and 5.523 Dependency and Indemnity Compensation Rate for a Surviving Spouse

In the NPRM, we reserved §§ 5.521 and 5.523 as the eventual locations for rules concerning entitlement to DIC for survivors of certain veterans rated totally disabled at the time of death and concerning the rates of DIC payments to surviving spouses. We explained that, when the NPRM was issued, rulemaking was pending to amend the provisions in part 3, Code of Federal Regulations, involving those matters, and that we would incorporate those part 3 provisions in this final rule once the pending part 3 changes were made. Start Printed Page 71126Because those part 3 changes have now been made, as explained below, we propose to add the corresponding provisions in part 5.

VA issued a final rule in December 2005 amending its part 3 regulations in response to the decision in Nat'l Org. of Veterans' Advocates, Inc. v. Sec'y of Veterans Affairs, 314 F.3d 1373 (Fed. Cir. 2003). This final rule (see 70 FR 72211, Dec. 2, 2005) revised § 3.22(b) to clarify the meaning of the phrase “entitled to receive” for purposes of determining whether a veteran's survivors are entitled to benefits under 38 U.S.C. 1318, “Benefits for survivors of certain veterans rated totally disabled at time of death”. This final rule also revised provisions previously in § 3.5(e) relating to the rates of DIC payable to surviving spouses and moved those provisions into § 3.10.

VA completed another rulemaking in 2006, implementing section 301 of the Veterans Benefits Improvement Act of 2004. Section 301 amended 38 U.S.C. 1311, Dependency and indemnity compensation to a surviving spouse, by adding subsection (e) (amended to be subsection (f) by section 4 of Pub. L. 109-361, 120 Stat. 2062 (2006)), providing a $250 increase in the monthly rate of DIC to which a surviving spouse with one or more children below age 18 is entitled. The increased rate is payable for the 2-year period beginning on the date entitlement to DIC began and ends the first month after the month all children of the surviving spouse attain age 18. This statutory change was incorporated as § 3.10(e)(4). See 71 FR 44915, Aug. 8, 2006.

In anticipation of these regulatory changes, VA reserved §§ 5.521 and 5.523 in the NPRM for this regulation rewrite segment. We propose to incorporate the current versions of §§ 3.22 and 3.10 (as amended), as proposed §§ 5.521 and 5.523, respectively. In addition, we propose to remove the reference to, “§ 5.521 (Reserved) and § 5.523 (Reserved)”. As noted in the NPRM and this proposed notice, the provisions of current § 3.22(d) are incorporated in proposed § 5.520 and the provisions of current § 3.22(e) and (f) are incorporated in proposed § 5.522(a), (b), and (c)(4).

Current 38 CFR 3.22(a)(2)(iii) implements 38 U.S.C. 1318(b)(3) which states that VA will pay death benefits to the surviving spouse or children in the same manner as if the veteran's death were service-connected if the veteran's death was not the result of his or her own willful misconduct and at the time of death, the veteran was receiving, or was entitled to receive, compensation for service-connected disability that was rated by VA as totally disabling for a continuous period of not less than 1 year immediately preceding death, if the veteran was a former prisoner of war who died after September 30, 1999. Section 603 of Public Law 111-275, 124 Stat. 2864, 2885 (2010) amended section 1318(b)(3) by removing the requirement that the veteran have died after September 30, 1999, so we have omitted this requirement from § 5.521(a)(2)(iii).

§  5.524 Awards of Dependency and Indemnity Compensation Benefits to Children When There Is a Retroactive Award to a Schoolchild

We propose to make changes to initially proposed § 5.524 to reduce wordiness and enhance clarity. For example, paragraph (a), as initially proposed, stated: “The total amount payable to the children, which varies according to the number of children, is divided and paid to the children in equal shares.” We propose to revise that sentence to state: “The total amount VA pays to a child depends on the number of children, and the amount is paid to each child in equal shares.” Further, we propose to add the term “currently” to paragraph (a)(1) to clarify that the exception stated in proposed § 5.524 only applies when, at the time DIC is reestablished for the additional child, other children are receiving running DIC awards.

We propose to delete the term “eligible” as it applies to child in proposed § 5.524. To state that dependency and indemnity compensation is payable to an eligible child is redundant of other VA regulations that state the requirements of a dependent. For this same reason, we propose to make similar changes in proposed § 5.536 to the term “eligible parents”.

We additionally propose to reword paragraphs (a)(2) and (3) to enhance reader comprehension. The rewording of proposed § 5.524(a) will make this regulation more comprehensible to the average reader.

Proposed § 5.524(b) deals with retroactive payments and payment dates for additional children who successfully reestablish DIC entitlement. Upon further review, we determined that rewording the paragraph would make it easier to understand. We intend no change in the meaning of paragraph (b).

§ 5.525 Awards of Dependency and Indemnity Compensation When Not All Dependents Apply

In NPRM AM06, “Payments and Adjustments to Payments”; 73 FR 65212, Oct. 31, 2008, we included proposed § 5.696, “Awards of dependency and indemnity compensation when not all dependents apply”. In preparing this proposed rule, we have determined that because it concerns only dependency and indemnity compensation benefits, this section more logically belongs in part 5, subpart G, which is titled, “Dependency and Indemnity Compensation, Death Compensation, Accrued Benefits, and Special Rules Applicable Upon Death of a Beneficiary”. We therefore propose to move this section into subpart G, renumbering it as proposed § 5.525.

§ 5.530 Eligibility for, and Payment of, a Parent's Dependency and Indemnity Compensation

We propose to correct the authority citation at the end of initially proposed § 5.530 so that the United States Code sections are in chronological order.

5.533 Income Not Counted for Parent's Dependency and Indemnity Compensation

In the preamble for initially proposed § 5.302, 70 FR 61326, 61336, (Oct. 21, 2005), we explained our omission of the first sentence of § 3.262(j)(2) as an unnecessary specific instance of a broader general rule in 5.302(a) that encompasses the specific rule. The second sentence of § 3.262(e) is analogous to § 3.262(j)(2) and unnecessary for the same reason. The preamble to initially proposed explained our omission of the third sentence of § 3.262(e)(4). Without the third sentence, the fourth sentence is moot without the third sentence, because it provides a process to implement after implementing the third sentence.

§ 5.535 Adjustments to a Parent's Dependency and Indemnity Compensation When Income Changes

In reviewing the AL89 NPRM, we determined that we failed to incorporate § 3.660(b)(2) in initially proposed § 5.535. The concept of anticipated income is different from that of actual income. This is because a beneficiary's actual income may be less than his anticipated income. VA may learn of this in any of the following ways: (1) Actual income is reported by the parent on an eligibility verification report (EVR); (2) VA requests a statement from the parent of their actual income at anytime; or (3) The parent notifies VA of income changes on their own.

We therefore propose to insert the rules from § 3.660(b)(2) into proposed § 5.535.Start Printed Page 71127

§ 5.536 Parent's Dependency and Indemnity Compensation Rates

In initially proposed § 5.536(d) we intended only to restate current § 3.251(a)(4), but we inadvertently misstated that provision. Section 3.251(a)(4) does not purport to apply only if there is one eligible parent. Instead, it states that if a parent's remarriage ends, the parent will be paid at the rate for one parent alone or for two parents not living together, whichever is applicable. This means that the parent will be paid at the “one parent” rate if there is no other eligible parent, or at the “two parents not living together rate” if the other parent is alive. Initially proposed § 5.536(d) limited this rule to cases where there is only one parent and stated that VA will pay at the “one parent” rate if the remarriage ends or at the “two parents not living together” rate if the parent is separated from his or her spouse. We propose to revise initially proposed paragraph (d) so that it is now consistent with § 3.251(a)(4).

Note Regarding § 5.573 Through § 5.579.

In the NPRM for AL89, we included §§ 5.573 through 5.579. We received no comments on these sections. To cut down on the length of this rulemaking, we chose to include those sections in the rule segment to the companion rulemaking, RIN 2900-AL71, Accrued Benefits and Special Rules Applicable Upon Death of a Beneficiary, published as NPRM at 69 FR 59071, Oct. 1, 2004. Any technical corrections or changes in terminology made to these regulations are included there. Thus initially proposed §§ 5.573 and 5.574 have been removed from this proposed subpart, as well as the reference to reserving proposed §§ 5.575-5.579.

Technical Corrections and Changes in Terminology

The changes in terminology in this proposed rulemaking are made primarily for purpose of achieving consistency throughout our part 5 regulations. Except as otherwise provided in this preamble, no substantive changes are intended by these changes made in terminology.

According to paragraph 12.9 of the Government Printing Office Style Manual, numerals rather than words are used when referring to units of measurement and time. Therefore, we substituted the numeral “7” for the word “seven” in proposed § 5.503(b). Likewise, we substituted the numeral “1” for the word “one” in proposed § 5.520(b)(1)(ii) and (b)(2)(i).

To be consistent in style with the rest of part 5, we propose to change “DIC” to “dependency and indemnity compensation” if it was used in a heading to a regulation section in the NPRM. We also propose to change the headings in proposed §§ 5.521 and 5.535 accordingly. Similarly, “dependency and indemnity compensation” was changed to “dependency and indemnity compensation (DIC)” the first time it appears in each section, if we did not do so in the NPRM. We propose to make this change in proposed § 5.531(c) and the introductory paragraph to proposed § 5.533. Likewise, we propose to change “dependency and indemnity compensation” to “DIC” the second and subsequent times it appeared in each section, if we had not already done so in the NPRM. We propose to make such changes to proposed § 5.523(a) and (e)(4).

To clarify that only one parent is required to apply for DIC, not both, we propose to change the heading of the undesignated center heading entitled, “Dependency and Indemnity Compensation—Eligibility Requirements and Payment Rules for Parents,” to, “Dependency and Indemnity Compensation—Eligibility Requirements and Payment Rules for a Parent”. Also, where appropriate to make this requirement more apparent, we propose to change references from “parents” to “a parent,” except where the context clearly encompasses both parents or all parents in receipt of DIC.

To be consistent with other regulations in part 5, we propose to change the phrases, “[t]he amount to be offset includes” and “[t]he amount to be offset excludes” to “VA will count in the amount to be offset” and “VA will not count in the amount to be offset” in each place they appeared in the NPRM in initially proposed § 5.522(c)(1) through (4). For the same reason, in (c)(1) we propose to change “excluded” to “not counted”, in (c)(2) we changed “[t]his includes” to “VA will also count”, and in (c)(3) we changed “included” to “counted”. Similarly, in § 5.531(a) and (b), we propose to change the word “included” to the phrase or word, “are counted” or “counted”, as appropriate. Finally, we propose to change the heading of initially proposed § 5.533 from “Exclusions from income” to “Income not counted for parent's dependency and indemnity compensation,” and in initially proposed § 5.533(i)(2), we propose to change the phrase, “be excluded” to “not be counted.”

B. Accrued Benefits, Death Compensation, and Special Rules Applicable Upon Death of a Beneficiary AL71

In a document published in the Federal Register on October 1, 2004, we proposed to revise Department of Veterans Affairs (VA) regulations governing accrued benefits and special rules applicable upon death of a beneficiary, to be published in a new 38 CFR part 5. 69 FR 59072. We provided a 60-day comment period that ended November 30, 2004. We received submissions from two commenters: Vietnam Veterans of America and a member of the general public.

§ 5.538 Effective Date of Dependency and Indemnity Compensation Award

In initially proposed AL71, we placed all the dependency and indemnity compensation (DIC) effective date provisions at the end of subpart G, “Dependency and Indemnity Compensation, Death Compensation, Accrued Benefits, and Special Rules Applicable Upon Death of a Beneficiary”. We have determined that they will be easier to locate if they appear after the series of regulations on DIC, rather than after the series of regulations on accrued benefits. Therefore, we propose to renumber the sections initially proposed as §§ 5.567 through 5.574 as §§ 5.538 through 5.545.

We propose to revise initially proposed § 5.538 to identify dates as “effective dates” instead of “payment dates” to be consistent with other provisions in part 5.

In § 5.538(a)(1)(i), we propose to change the phrase, “If VA receives a claim for [DIC] within one year from” to “If VA grants DIC based on a claim received no later than 1 year after”. In proposing this rule, we incorrectly omitted the relevant event of VA granting the benefit. In addition, because VA considers a claim for death pension to also be a claim for DIC, it could be misleading to imply that the claim must be for DIC. For the same reasons, we propose to make conforming changes to paragraphs (a)(2), (b)(1), (b)(2), (d)(1), and (d)(2) of § 5.538.

In § 5.538(a)(1)(ii), we propose to add the words, “based on a report of actual death” to be consistent with current § 3.400(c)(1), the part 3 equivalent to this section, and to correct an omission from the initially proposed rule. We also propose to add the words, “any of the veteran's following military entitlements” and reformat the sentence. This revision will ensure that there is no confusion between military Start Printed Page 71128entitlements and other benefits titled allowances, allotments, or service pay.

In § 5.538(d)(2), we propose to change cross-references to §§ 5.230 and 5.696 to exceptions, in order to be as specific as possible and eliminate confusion. We begin the proposed rule by stating “Except as otherwise provided in this part” and end with the cross-references in an attempt to imply that the cross-references are the exceptions.

In § 5.538(e), we propose to add § 5.230 as an exception to correct an omission from the initially proposed rule.

§ 5.539 Discontinuance of Dependency and Indemnity Compensation to a Person No Longer Recognized as the Veteran's Surviving Spouse

In § 5.539 (initially proposed 5.568), we propose to revise paragraph (a) so that it clearly requires the discontinuance of DIC payments to a former payee when VA recognizes that a new payee is eligible for DIC based on the same veteran. In the initially proposed rule, we inadvertently addressed the effective date of such discontinuance without also directing that such discontinuance occur.

We propose to delete from paragraph (b) language referring to periods on or after December 1, 1962. Because part 5 will apply only prospectively, not retroactively, the language is unnecessary.

We also propose to revise the language in paragraph (b)(1) that had stated that “the award to the former payee will be terminated the day preceding the effective date of the award to the new payee” to state instead that “the award to the former payee will be discontinued on the effective date of the new payee's DIC award”. We propose to revise the language to conform to our practice in part 5 of referring to the first date that a new rate or benefit is paid, instead of referring to the last date on which a prior rate or benefit is paid.

We propose to delete paragraph (b)(3), which had contained an exception to the effective-date provisions when the discontinuance of DIC payments is due to a change in, or in the interpretation of, the law or an administrative issue, from this regulation. That provision was redundant of § 5.152, which was published as proposed on May 22, 2007. See 72 FR 28769.

§ 5.540 Effective Date and Payment Adjustment Rules for Award or Discontinuance of Dependency and Indemnity Compensation to a Surviving Spouse Where Payments to a Child Are Involved

In § 5.540 (initially proposed 5.569), We propose to reorganize this section for clarity by incorporating much of the introductory material initially proposed in paragraph (a) into the paragraphs that follow. This revision simplifies the section without changing the meaning or intent.

§ 5.541 Effective Date of Reduction of a Surviving Spouse's Dependency and Indemnity Compensation Due to Recertification of Pay Grade

In § 5.541, (initially proposed 5.570), we propose to delete paragraphs (a) and (b) because those paragraphs were redundant of §§ 5.197, “Effective date of reduction or discontinuance of Improved Pension, compensation, or dependency and indemnity compensation due to marriage or remarriage”, and 5.231, “Effective date of reduction or discontinuance: child reaches age 18 or 23”, which were published as proposed on September 20, 2006. 71 FR 55052, 55067, 55073. We also propose to change the title of the regulation to accurately describe the revised content.

One commenter suggested that VA should add language to § 5.541 (initially proposed § 5.570(c)) to inform readers that the reduction of DIC based on recertification of a pay grade to a level lower than the one originally certified would not result in an overpayment of monthly DIC benefits paid to a veteran's survivors based on the pay grade previously in effect. We did not include such language in the initially proposed rule because a reduction under § 5.541 will always involve a future and not a retroactive adjustment in DIC benefit payments. No overpayment is created because of the prospective nature of the reduction. However, we propose to reword the provision to clarify that the reduction will be “effective the first day of the month after the month for which VA last paid the greater benefit”.

§ 5.542 Effective Date of an Award or an Increased Rate Based on Decreased Income: Parents' Dependency and Indemnity Compensation

In initially proposed § 5.571(c), we referred to time limits contained in a “regulation that [would] be published in a future Notice of Proposed Rulemaking” based on current § 3.660(b)(1). That regulation, § 5.535, was published as proposed on October 21, 2005. See 70 FR 61326. To simplify the material and eliminate redundancy, we propose to combine proposed §§ 5.535 and 5.571 into a single section, § 5.542.

§ 5.543 Effective Date of Reduction or Discontinuance Based on Increased Income: Parents' Dependency and Indemnity Compensation

In proposed § 5.543 (initially proposed 5.572), we propose to reorganize the material into two paragraphs instead of four to simplify the structure of the regulation. Also, we propose to change the language in initially proposed paragraph (b) stating that a reduction or discontinuance would be effective at “the end of the month in which income increased” to refer instead to “the first day of the month after the month in which the income increased or is expected to increase”. We propose to revise the language to conform with our practice in part 5 of referring to the first date a new rate is paid instead of referring to the last date on which a prior rate is paid.

§§ 5.544 Dependency and Indemnity Compensation Rate Adjustments When an Additional Survivor Files a Claim, and 5.545 Effective Dates of Awards and Discontinuances of Special Monthly Dependency and Indemnity Compensation

When these initially proposed rules were published in the Federal Register on October 1, 2004, we proposed to reserve §§ 5.573 and 5.574 for future regulations. 69 FR 59072. In the second package of proposed rules for this subpart G published on October 21, 2005, we designated § 5.573 as “Effective date of dependency and indemnity compensation rate adjustments when an additional survivor files an application”, and § 5.574 as “Effective dates of awards and discontinuances of special monthly dependency and indemnity compensation.” 70 FR 61326, 61348. We received no comments regarding these two sections. As discussed above, we propose to renumber the sections, initially proposed as §§ 5.573 and 5.574, as §§ 5.544 and 5.545 respectively.

We propose to move the exception (stated in initially proposed § 5.573(e)) referring to § 5.524 to the introductory paragraph of § 5.544. This prominent position will more effectively alert readers to the exception.

Also in § 5.544, we propose to delete paragraph (a)(2) and reorganize the remainder of paragraph (a) into a single paragraph. The condition contained in initially proposed paragraph (a)(2)—that Start Printed Page 71129payment to the additional survivor would reduce the benefit being paid to the other survivors—is always true when the benefit is DIC; therefore, stating it as a condition is unnecessary in proposed § 5.544. The language proposed in paragraph (a)(2) is derived from current § 3.650(a) and is necessary in that section because it applies to pension and compensation as well as DIC.

In § 5.545(a)(2), we propose to delete the word “basic” from before “DIC”. Part 5 will not use the term “basic DIC” to distinguish DIC from special monthly DIC because use of the term “basic DIC”, which is not used elsewhere in part 5, was likely to confuse a reader. Instead, we will distinguish the benefits by referring to “DIC” and “special monthly DIC”. We also propose to simplify the paragraph by eliminating initially proposed paragraph (a)(2)(i). Initially proposed paragraph (a)(2) provided that the effective date would be “the later of the following dates: (i) [t]he effective date of the . . . DIC award, or (ii) [t]he date entitlement to special monthly DIC arose.” Unless the two dates are the same, the date entitlement to special monthly DIC arose will always be the later date, so it is unnecessary to refer to the effective date of the DIC award.

We propose to redesignate initially proposed § 5.574(a)(3), which was based on current § 3.402(c)(2) and the last sentence of § 3.404, as a new paragraph § 5.545(c). We have also reworded the paragraph in order to specify that special monthly dependency and indemnity compensation based on the need for aid and attendance will not be paid if the surviving parent or surviving spouse is receiving hospital care in his or her own right as a veteran. The rewording of this paragraph is made for clarity.

Changes From Proposed §§ 5.550 Through 5.559 Based Upon a Change in the Implementation of Part 5

When we began writing part 5, we planned to remove part 3 from title 38, CFR, such that all claims for benefits, and the administration of such benefits, would be governed by part 5. Accordingly, many of the part 5 regulations were written and proposed with that concept in mind. Since then, we determined that it would be better to retain the part 3 regulations for the adjudication of claims received before the applicability date of the part 5 regulations. Thus, we would apply the part 5 regulations only to claims received on or after the applicability date of the part 5 regulations.

Specifically, when we initially proposed the accrued-benefits regulations, we anticipated that they would apply to all claims, including those filed before December 16, 2003, and those in which death of the beneficiary occurred before December 16, 2003. The proposed rules distinguished claims for accrued benefits filed before December 16, 2003, from claims for accrued benefits filed on or after that date. The rules also contained effective dates relevant to the distinction between claims filed before versus after December 16, 2003. We received comments concerning the substance of these issues, but these comments are no longer relevant because we have removed the provisions.

Part 5 will not be in effect before 2013. A claim for accrued benefits must be filed no later than 1 year after the date of the beneficiary's death. Therefore, part 5 will not apply to claims for accrued benefits based on a death before 2004. We propose to revise the rules accordingly.

For the above reason, we propose to revise the definition of “accrued benefits” (initially proposed in § 5.550, now in proposed § 5.1) and delete initially proposed §§ 5.556, 5.558, and 5.559. As discussed further below, we also propose to delete initially proposed § 5.554. Because we are proposing to delete initially proposed §§ 5.554 and 5.556, we propose to renumber proposed § 5.555 as § 5.554, and proposed § 5.557 as § 5.555. We propose to reserve §§ 5.556, 5.557, 5.558, and 5.559.

One comment pertained to initially proposed § 5.556 and its 2-year limitation on the payment of accrued benefits on cases in which the beneficiary had died before December 16, 2003. The commenter explained that she was a surviving spouse receiving dependency and indemnity compensation under 38 U.S.C. 1151 because of a death caused by VA medical treatment and that the veteran had been receiving VA disability compensation during his lifetime. The commenter felt that where VA medical care had hastened a veteran's death so that the veteran did not live until December 16, 2003, VA should pay the full amount of accrued benefits without regard to the 2-year limitation. The Veterans Benefits Act of 2003, Public Law 108-183, sec. 104, 117 Stat. 2651, 2657, was signed into law on December 16, 2003, and removed the 2-year limitation on payment of accrued benefits with respect to deaths occurring on or after that date. See 38 U.S.C. 5121. VA has no authority to pay more than 2 years of accrued benefits for deaths occurring before December 16, 2003. We propose to make no changes based on this comment because we do not have the authority to change the regulations as the commenter wants. However, as discussed above, we propose to delete initially proposed § 5.556 because it was intended to apply only to claims based upon the death of a beneficiary occurring before December 16, 2003.

§ 5.550 [Reserved]

In § 5.550, we initially proposed several definitions. We have determined that the definitions are either unnecessary or more appropriately placed elsewhere in part 5. So we propose to delete the initially proposed text and reserve § 5.550.

We propose to move the definition of “accrued benefits” to § 5.1, the definition of “claim for benefits pending on the date of death” to § 5.1, and the definition of “evidence in the file on the date of death” to § 5.1 because these definitions apply to all of part 5.

We initially proposed a definition of “deceased beneficiary” to distinguish that person from the living beneficiary claiming survivor's benefits. See 69 FR 59076, Oct. 1, 2004. We have since concluded that the definition is superfluous because it adds nothing to the plain meaning of the term “deceased beneficiary”. Where the regulations refer to a “deceased beneficiary”, the term is clear in context.

The initially proposed definitions of “child” and “dependent parent” contained references to the general definitions of those terms (contained elsewhere in part 5) and rules limiting the application of the general definitions for purposes of accrued benefits. The references to the general definitions are unnecessary, and the rules limiting the definitions are more appropriately placed in § 5.551(a). We therefore propose to revise the rule limiting the definition of “child” to more accurately reflect the content of current § 3.1000(d)(2) upon which the rule is based.

Similarly, the initially proposed definition of “surviving spouse” contained a reference to the general definition contained elsewhere in part 5 and a rule limiting the application of the general definition for purposes of accrued benefits. The reference to the general definition is unnecessary, and the rule limiting the definition is more appropriately placed in §§ 5.551(b) and 5.566(d)(1). In relocating the rule, we propose to not repeat the language contained in initially proposed § 5.550(h)(2)(i) regarding date-of-marriage requirements for DIC and Start Printed Page 71130death compensation. Although initially proposed § 5.550(h)(2)(i) was based on a reference to date-of-marriage requirements in § 3.1000(d)(1), a surviving spouse could never claim accrued benefits based on DIC, so the language was superfluous.

As stated in the preamble of the AL71 NPRM, the U.S. Court of Appeals for Veterans Claims in Bonny v. Principi, 16 Vet. App. 504 (2002) interpreted 38 U.S.C. 5121(a) as establishing a class of benefits known as “benefits awarded, but unpaid at death”. 69 FR 59072, 59074, Oct. 1, 2004. Although we initially proposed to define “benefits awarded, but unpaid at death” in proposed § 5.550, we have determined that it is unnecessary to include rules on such benefits in part 5. As stated in the preamble to RIN 2900-AL71, “These proposed rules also apply to claims for benefits awarded, but unpaid at death, if the deceased beneficiary died prior to December 16, 2003, and a claim for such benefits was pending on December 16, 2003.” Any claim pending on that date would be processed under part 3, not part 5, so there is no need to include such provisions in part 5. We therefore propose to remove all references to “benefits awarded, but unpaid at death” from part 5.

§ 5.551 Persons Entitled to Accrued Benefits

In § 5.551(c)(2) and (d)(1), we propose to add the sentence, “[i]f there is no eligible claimant, such accrued benefits are payable to the extent provided in paragraph (f) of this section.” We propose to add this sentence for consistency with paragraphs § 5.551(e)(1) and (f) and to ensure proper disposition of the accrued benefits.

We propose to clarify initially proposed § 5.551(e), now redesignated as paragraph (f). Title 38 CFR 3.1000(a)(5) uses the phrase “last sickness or burial” instead of “last sickness and burial”. However, in initially proposed § 5.551(e), we used the phrase “last illness and/or burial” without providing an explanation for this change. Title 38 U.S.C. 5121(a)(6) states, “accrued benefits may be paid . . . to reimburse the person who bore the expense of last sickness and burial.” VA interprets the word “and” as used in the statute to mean “or”. We do not believe that Congress intended to require that a person have paid expenses of both the last illness and burial in order to qualify for some reimbursement. For example, if a person expended their savings paying for health care bills resulting from the veteran's last illness and therefore could not pay for the burial, it would be unfair not to reimburse them for the health care bills. We are changing the initially proposed language from “and/or” to simply “or” because this term includes “and”. For this same reason, we are making similar changes in proposed §§ 5.566(d)(4), and 5.567(a)(4).

We propose to clarify § 5.551(g) to reflect VA's long-standing policy that if a preferred potential claimant fails to file a claim, VA will not pay his or her share of accrued benefits to a person having an equal or lower preference. Similarly, if a preferred potential claimant waives rights to accrued benefits, VA will not pay his or her share of accrued benefits to a person having an equal or lower preference. VA will only pay the accrued benefits to someone else if, within the 1-year period to file a claim for accrued benefits, the preferred potential claimant dies, forfeits entitlement, or otherwise becomes disqualified. In such a case, the next-in-line (or equal) person must file a timely claim.

The statute, 38 U.S.C. 5121, authorizes VA to pay accrued benefits only to “the living person first listed” in the hierarchy set forth in section 5121(a)(2). VA has consistently interpreted “the living person first listed” as an instruction to pay only that person, so long as he or she is alive. Because a claim for accrued benefits may be filed up to 1 year after the veteran's death, however, we permit a claimant lower in the hierarchy to file a claim if the person above them dies during that 1 year. We also liberally interpret the statute to authorize payment of accrued benefits to a person lower in the hierarchy when the person(s) above them is involuntarily disqualified, not withstanding that the person is still alive because, as a legal matter, such person is treated as if he or she were dead for purposes of determining entitlement to benefits.

We propose to make similar revisions to § 5.566(e)(3) based on VA's consistent interpretation of “the following persons living at the time of settlement, and in the order named” as used in the authorizing statute, 38 U.S.C. 5502(d).

§ 5.552 Claims for Accrued Benefits

In initially proposed § 5.552(a), we noted that § 5.552 did not apply to claims for the proceeds of a benefit check that the deceased beneficiary did not negotiate before death or to awards under the Nehmer court orders for disability or death caused by a condition presumptively associated with herbicide exposure. These scope provisions are unnecessary because they are redundant of material contained in §§ 5.564, “Cancellation of checks mailed to deceased payee; payment of such funds as accrued benefits”, and 5.592, “Awards under Nehmer Court orders for disability or death caused by a condition presumptively associated with herbicide exposure.” We therefore propose to delete § 5.552(a) and redesignate the other paragraphs accordingly.

We also propose to delete the cross reference to § 3.152(b) that was contained in initially proposed § 5.552(c)(3). Cross-referencing § 3.152, or its part 5 counterpart, § 5.52, would not be useful to the reader. The portions of those regulations pertinent to claims for accrued benefits are incorporated in § 5.552(b).

Deletion of Proposed § 5.554

We propose to delete initially proposed § 5.554. First, we propose to move the material from initially proposed § 5.554 concerning school vacation periods to § 5.551(a)(1)(ii). We propose to revise the provision to more clearly and simply state the rule.

We propose to eliminate the provision in the initially proposed rule which stated that “school confirmation of evidence of school attendance is not required to support a claim”. This provision was intended to prevent VA employees from requiring proof of school attendance in claims for accrued benefits where such evidence was already of record. This might occur, for example, when the child was already listed as a dependent on the veteran's award or was receiving educational benefits under 38 U.S.C. chapter 35. There are no similar provisions regarding other types of proof in claims for accrued benefits, and it is unnecessary to have a regulation instructing VA employees to refrain from requesting duplicate evidence.

§ 5.554 VA Benefits Payable as Accrued Benefits

We propose to revise the heading of § 5.554 (initially proposed as § 5.555) so that it is no longer phrased as a question, and so that it more completely identifies the subject matter of the section.

In § 5.554(a)(10), we propose to correct the citation to 10 U.S.C. chapter 1606 (as initially proposed, it was “10 U.S.C. 1606”), and we propose to add veterans' educational assistance under 10 U.S.C. chapter 1607 to the list of potentially qualifying benefits. Section 527 of Public Law 108-375 established an additional educational assistance program, educational assistance for certain reserve component members who performed active military service Start Printed Page 71131under the provisions of 10 U.S.C. chapter 1607. See 118 Stat. 1811, 1890-94 (2004). This new program results in periodic monthly benefits that are paid under laws administered by the Secretary.

§ 5.555 Relationship Between Accrued-Benefits Claims and Claims Filed by the Deceased Beneficiary

We propose to revise paragraph (a) of this renumbered section (initially proposed as § 5.557) to clarify the distinction between, and relationship of, accrued-benefits claims and claims filed by the deceased beneficiary.

§§ 5.560-5.563 [Reserved]

We propose to delete the initially proposed rules concerning death compensation (proposed §§ 5.560 through 5.562) and reserve §§ 5.560 through 5.562 for later use. There are fewer than 300 beneficiaries currently receiving death compensation. VA has not received a claim for death compensation in over 10 years, and we do not expect to receive any more claims. However, should VA receive such a claim, it could process the claim under the controlling statute, 38 U.S.C. 1121 (for survivors of wartime veterans) or 1141 (for survivors of peacetime veterans). Except for one small group of beneficiaries, death compensation is payable only if the veteran died before January 1, 1957. Because of the small number of beneficiaries of death compensation, the provisions concerning death compensation do not need to be carried forward to part 5.

Additionally, we have determined that the rule initially proposed as § 5.563, “Special rules when a beneficiary dies while receiving apportioned benefits”, relates to apportionments more than to accrued benefits so we propose to move it to subpart M, “Apportionments to Dependents and Payments to Fiduciaries and Incarcerated Beneficiaries”. We propose to reserve § 5.563 for later use.

§ 5.564 Cancellation of Checks Mailed to a Deceased Payee; Payment of Such Funds as Accrued Benefits

Under 38 U.S.C. 5122, VA must pay, in accordance with the hierarchy of payments of accrued benefits, the amount of benefits represented in a “check received by a payee in payment of accrued benefits . . . if the payee died on or after the last day of the period covered by the check.” In addition, VA may pay such benefits if the check was wrongly negotiated, but the funds are recovered. In all other cases, 38 U.S.C. 5121(c) would apply, such that a person wishing to receive accrued benefits must file a claim for such benefits.

We propose to revise the title and paragraph (a) of § 5.564. First, we propose to clarify that VA is only authorized to pay the accrued benefits represented in a check mailed to a deceased payee for a period during which the payee was alive up to at least the last day of the period. As initially proposed, the regulation stated that it did not apply to benefits for “the month in which the beneficiary died”, but did not clearly identify the periods to which the regulation could apply. Moreover, this language was not technically correct, because a payee could die on the last day of the period and still be covered by the statute, which explicitly applies when the payee died “on . . . the last day of the period.”

Second, we propose to clarify that this regulation may apply to multiple checks received by the deceased payee. This is clear in the current rule, 38 CFR 3.1003(a)(1), but was not clear in § 5.564 as initially proposed.

Third, the initially proposed rule referred several times to “non-negotiated” checks, which could have been read to be unnecessarily limiting because VA may also pay funds that are recovered after a check was negotiated by someone other than the payee. (In the one remaining instance, we use the term “unnegotiated” instead of “non-negotiated” to be consistent with prior opinions by VA's Office of General Counsel. See, for example, VA General Counsel's Opinion, VAOPGCPREC 8-96, 61 FR 66749 (Sept. 26, 1996).

Finally, we propose to move initially proposed paragraph (d), concerning payment to the deceased payee's estate, into paragraph (a), for organizational reasons.

As revised, paragraph (a) will more closely track the statutory language and accurately represent the current rule in 38 CFR 3.1003; it will not represent a departure from VA's current practice and interpretation of 38 U.S.C. 5122.

We also propose to delete initially proposed paragraph (b) and redesignate the remaining paragraphs accordingly. As initially proposed, paragraph (b) was comprised of two unnecessary negative propositions, based on current § 3.1003(a)(1). First, proposed paragraph (b) provided that there is no limit on the retroactive period for which payment of the amount represented by the checks may be made. It is unnecessary to state this negative proposition, and this language might mislead readers into believing that there is an unstated time limit on the retroactive period of an award under other sections, when in fact there is no such time limit. Second, proposed paragraph (b) provided that there is no time limit for filing a claim to obtain the proceeds of the checks or for furnishing evidence to perfect a claim. It is unnecessary to state this negative proposition (that is, that there is no deadline) because this language might mislead readers into believing that there is a requirement to file a claim for the proceeds of VA checks under § 5.564, when in fact there is no such requirement.

§ 5.565 Special Rules for Payment of VA Benefits on Deposit in a Special Deposit Account When a Payee Living in a Foreign Country Dies

In § 5.565(b)(1) and (2), we propose to add the words “in equal shares” at the end of each paragraph, to clarify that payment to the children of the veteran or children of the surviving spouse is to be in equal shares. The authorizing statute, 31 U.S.C. 3330, is not specific in this regard, but payment in equal shares is consistent with VA practice and provides a simple and fair rule for administering payments.

Current § 3.1008, on which initially proposed § 5.565 was based, contains no statutory authority. In our initially proposed rule, we listed 31 U.S.C. 3329 and 3330 and 38 U.S.C. 6104 as the authority citations. In reviewing this rule, we have determined that section 6104 does not provide statutory authority for § 5.565 and that additional authority is provided by 38 U.S.C. 5309. We propose to correct this authority citation appropriately.

§ 5.566 Special Rules for Payment of Gratuitous VA Benefits Deposited in a Personal Funds of Patients Account When an Incompetent Veteran Dies

We propose to clarify § 5.566(d)(3) by adding “on the date of the veteran's death”. Similar language is contained in current § 3.1009(a)(3) upon which the initially proposed rule was based, and the phrase should have been included in the proposed rule.

Paragraph 7 of VA General Counsel's opinion VAOPGCPREC 06-91, 56 FR 25156 (June 3, 1991), states that:

7. Interim Issue (CONTR-169), dated January 13, 1960, providing necessary instructions for the fiscal implementation of PL 86-146, provides in paragraph D.3 in pertinent part:

“a. Immediately upon death of a veteran who has been adjudged or rated incompetent, the balance in the Personal Funds of Patients account will be analyzed to determine the source thereof, i.e., funds derived from gratuitous benefits deposited by the VA under laws administered by the VA or from other sources. For this purpose gratuitous benefits are defined as all benefit payments Start Printed Page 71132under laws administered by the VA except insurance payments (Servicemen's Indemnity benefits are not insurance payments).”

We therefore propose to replace “gratuitous benefits” with the phrase “all benefits except insurance payments” in § 5.556. For this same reason, we propose to make this change throughout part 5.

§§ 5.567 Special Rules for Payment of Old-Law Pension When a Hospitalized Competent Veteran Dies, and 5.568 Non-Payment of Certain Benefits Upon Death of an Incompetent Veteran

In the initially proposed rule for subpart G, we did not include the provisions from part 3 concerning payment of Old-Law Pension benefits withheld from hospitalized competent and incompetent veterans who die before payment is made, as found in §§ 3.1001 and 3.1007. This omission was inadvertent and we now propose to include these provisions as §§ 5.567 and 5.568.

In § 5.567(b), we are not including language equivalent to current § 3.1001(b)(1) stating, “[t]here is no time limit on the retroactive period of an award”. It is unnecessary to state this negative proposition, and this language might mislead readers into believing that there is an unstated time limit on the retroactive period of an award under other sections when there is no such time limit.

Current § 3.1007 states that, “The term `dies before payment' includes cases in which a check was issued and the veteran died before negotiating the check”. Although there is no such provision in § 3.1001, VA's practice has been to apply this principle to that section as well. This is reflected by the fact that payments under both §§ 3.1001 and 3.1007 are excluded from VA's general rule on unnegotiated checks. See 38 CFR 3.1003(c). We therefore propose to add paragraph (d) to § 5.567 stating that the rule applies to “cases in which a check was issued and the veteran died before negotiating the check.”

Changes in Terminology

We propose to make several changes to the wording throughout this portion of the regulations. For example, we propose to change both “prior to” and “preceding” to “before”, and we propose to change “prior” to “previous”.

We propose to change “day following the date of last payment to the beneficiary” to “first day of the month after the month for which VA last paid benefits to the beneficiary”, where “beneficiary” represents either a child, parent, spouse, or the veteran. This phrasing is easier to understand and apply.

XIII. Subpart H: Special and Ancillary Benefits for Veterans, Dependents, and Survivors

In a document published in the Federal Register on March 9, 2007, we proposed to revise VA regulations governing special and ancillary benefits for veterans, dependents, and survivors, to be published in a new 38 CFR part 5. 72 FR 10860. We provided a 60-day comment period that ended May 8, 2007. We received submissions from two commenters: the Disabled American Veterans and a member of the general public.

Misdirected Comment

One commenter submitted a comment that states that it is intended for this regulatory package, RIN 2900-AL84, but it actually applies to RIN 2900-AL71. The issues raised in this comment are addressed in the portion of this preamble relating to RIN 2900-AL71.

§ 5.580 Medal of Honor Pension

Section 5.580 concerns Medal of Honor pension. Throughout § 5.580, we propose to change the initially proposed word “person” to “servicemember or veteran”, because only servicemembers and veterans can qualify for that benefit.

The second sentence of initially proposed § 5.580(a) stated, “After a person has been placed on the Medal of Honor Roll, and if such person has indicated a desire to receive the Medal of Honor pension, the Secretary concerned will provide VA with a certified copy of the certificate setting forth such person's right to the Medal of Honor pension.” We propose to delete this sentence, which seemed to delineate administrative duties of the service departments. The sentence did not require or provide for any VA action. We leave it to those departments to establish appropriate procedures to administer these duties as, for example, 32 CFR 578.9(c) does for the Department of the Army. For VA's purposes, it is necessary to note only that VA receipt of a certified copy of the certificate from the service department is a prerequisite to an award of Medal of Honor pension.

We propose to move initially proposed paragraph (b) into paragraph (a) to emphasize that VA cannot adjudicate entitlement to placement on the Medal of Honor Roll or to a certificate establishing the right to Medal of Honor pension. VA adjudicates only the amount of the initial payment (that is, the lump-sum payment) and of the effective date of the monthly pension, which is set forth in the next paragraph. We were concerned that as written, initially proposed paragraph (b), which stated that “Medal of Honor pension will be awarded by VA once the certification under paragraph (a) of this section is provided to VA”, could have been misinterpreted to provide an effective date.

In paragraph (b), we assign the effective date of monthly payment of such pension based on the date that the servicemember or veteran entitled to the pension files the appropriate form with the appropriate service department. Although we have generally interpreted 38 U.S.C. 5101(a) to require claimants for VA benefits to file a claim in the form prescribed by VA, that statute does not apply to claimants for the Medal of Honor pension, because the Secretary of the appropriate service department, and not VA, authorizes payment of the Medal of Honor pension. 38 U.S.C. 1561(c). Therefore, no additional claim to VA is necessary to establish entitlement to the Medal of Honor pension.

We propose to redesignate initially proposed paragraph (c) as (b), initially proposed paragraph (d) as (c), and initially proposed paragraph (e) as (d). We changed a phrase in proposed (c)(1) [now (b)(1)] from “application for placement on the Medal of Honor Roll” to “form requesting placement on the Medal of Honor Roll”. We have previously proposed, for VA purposes, that “`application' means a specific form required by the Secretary that a claimant must file to apply for a benefit” (§ 5.1). The statute authorizing the Medal of Honor Roll provides for placement on the roll “[u]pon written application,” 38 U.S.C. 1560(b), “in the form . . . prescribed by the Secretary concerned”. Although either “application” or “form” would be reasonable and accurate terms derived from the statute, we propose to change “application” to “form” in paragraph (b)(1) to preserve the distinction between “application” as we define it for VA purposes and any other use of the term.

Initially proposed § 5.580(c)(3) stated that VA would pay a lump sum “to each person who is receiving or who in the future receives a Medal of Honor pension”. If a veteran “is receiving” a Medal of Honor pension at the time that this regulation becomes effective, then he or she will already have received the lump-sum payment. We therefore propose to revise the sentence to provide a lump-sum payment “to each servicemember or veteran who receives a Medal of Honor pension”. This change is needed because part 5 will apply only Start Printed Page 71133to new claims, and not to existing entitlements.

The initially proposed text also stated that the lump-sum payment “will be based on the monthly Medal of Honor pension rates [in effect during a prescribed period].” The phrase “will be based on” was potentially confusing. We propose to change the text to read, “VA will calculate the amount of the lump-sum payment using the Medal of Honor pension rates in effect for each year of the period for which the retroactive payment is made.”

§ 5.581 Awards of VA Benefits Based on Special Acts or Private Laws

In initially proposed § 5.581(b)(2), we had included the parenthetical definition of “pending claim”. We propose to delete this definition as we have already defined “pending claim” in § 5.57(d). In addition, we clarified that the claim must be pending “at the time that the special act becomes effective.” This change makes the provision more explicit.

We propose to change § 5.581(c)(1) to improve readability.

We propose to change § 5.581(c)(2) to make clear that the rule pertains to a period of service rather than to a specific date.

Initially proposed § 5.581(d)(1) stated, “VA will apply and will not change, . . . the rate, effective date, and discontinuance date that is specified in a special act.” We propose to remove “and will not change” because it merely restates the fact that “we will apply” the elements of the special act addressed in paragraph (d)(1). This will make the rule more readable without changing its meaning.

The initially proposed text in § 5.581(d)(2) stated that the effective date is determined in accordance with the applicable law, but it did not state which law. We propose to include a cross reference to § 5.152, which implements 38 U.S.C. 5110(g), to clarify what date to apply in these situations.

In § 5.581(e)(1), we propose to add the terms, “hospital, domiciliary, or nursing home care” to more accurately describe the content of several sections cited. Similarly, in § 5.581(e)(2), we propose to add the phrase, “or . . . while a fugitive felon” to more accurately describe the content of several sections cited. We also propose to include in § 5.581(e)(2) that payments will be suspended while the veteran is a fugitive felon. We also propose to add 38 U.S.C. 5313B, governing fugitive felons, to the authority citation for the section.

§ 5.583 Special Allowance Under 38 U.S.C. 1312

In § 5.583(d), we propose to add, “after VA receives a claim” to clarify that the claimant must file a claim to obtain the benefit.

We propose to make a few changes to § 5.583(e) to enhance clarity and reduce ambiguity. We also propose to correct the reference to Subpart E, so that the text will correctly direct the reader to Subpart K. We also propose to add the statutory authority 38 U.S.C. 107, which is the statutory authority for § 5.583(b)(2).

§ 5.584 Loan Guaranty for a Surviving Spouse: Eligibility Requirements

In § 5.584, we propose to change the initially proposed phrase “may be extended” to “will be extended” to clarify that the action is not discretionary. We also propose to insert the phrase, “all of the following conditions are met” at the end of the introductory sentence and redesignate the paragraphs to enhance clarity and reduce ambiguity of the section.

In § 5.584(b)(2), we propose to add that a veteran's death treated by VA “as if” it were service connected, under 38 U.S.C. 1318, does not qualify the veteran's surviving spouse for loan guaranty certification.

We also propose to revise initially proposed § 5.584(e) to clarify that this section does not apply if the claimant is a surviving spouse who is eligible for a loan guaranty benefit as a veteran in his or her own right.

§ 5.586 Certification for Dependents' Educational Assistance

In § 5.586, “Certification for dependents' educational assistance”, paragraph (c)(2), we propose to change the reference to 38 CFR 3.361 to its part 5 counterpart, § 5.350. Current §§ 3.358 and 3.800 apply to claims under 38 U.S.C. 1151(a) that VA received before October 1, 1997. Because part 5 will apply only to future claims, we will not repeat the provisions of current §§ 3.358 and 3.800 in part 5.

Initially proposed § 5.586(a) failed to state who is potentially eligible to receive dependents' educational assistance. Accordingly, we propose to add “payable to a veteran's spouse, surviving spouse, or child,” after “education benefit” to clarify who is potentially eligible for this benefit.

Also in § 5.586, we propose to remove paragraph (d)(2) and (3), which merely cross referenced the definitions of “spouse” and “surviving spouse”. Because these terms are defined for purposes of all benefits administered under part 5, there is no need to include this paragraph. We propose to move the language of (d)(1) into paragraph (a).

§ 5.587 Minimum Income Annuity and Gratuitous Annuity

We propose to revise the regulation text of initially proposed § 5.587 for clarity.

In initially proposed § 5.587(a)(1), the reference to the citations to the sections of Public Law 92-425 were mistakenly written as “4(a)(2) and (3)”. We propose to correct this error by changing the citations to “4(a)(1) and (2)”, as stated in 38 CFR 3.811(a)(1). Further, we propose to reword the end of paragraph (c) to clarify its meaning. The initially proposed rule read, “An individual . . . shall be considered eligible for pension for purposes of determining eligibility for the minimum income annuity even though as a result of adding the amount of the minimum income annuity authorized under Public Law 92-425 as amended to any other countable income, no amount of pension is due.” The reworded version reads, “A person . . . will still be considered eligible for pension for purposes of determining eligibility for the minimum income annuity, even though no amount of pension is payable after adding the minimum income annuity, authorized under Public Law 92-425, 86 Stat. 706, as amended, to any other countable income.”

Public Law 92-425 authorizes payment of benefits for commissioned officers of the Public Health Service and the National Oceanic and Atmospheric Administration. The two agencies that govern these officers were not referenced in part 3. We propose to correct this omission in part 5 by adding the Department of Health and Human Services as well as the Department of Commerce in § 5.587(a)(1).

§ 5.588 Special Allowance Payable Under Section 156 of Public Law 97-377

In § 5.588(a)(1), we propose to change the regulation text to clarify that VA makes the determination of eligibility.

In § 5.588(e), we propose to eliminate the terms “formal and informal” from the initially proposed title. We have already defined the term “claim” in § 5.1 as a formal or informal communication requesting a determination of entitlement. Likewise, we refer to filing an “application” rather than “Formal claims . . . on a form prescribed by the Secretary”, because we have already defined “application” in § 5.1.

We propose to remove the last sentence of initially proposed § 5.588(e), because it would impose a restriction Start Printed Page 71134not authorized by the governing statute. See Cole v. Derwinski, 2 Vet. App. 400 (1992), aff'd, 35 F.3d 551 (Fed. Cir. 1994). The effective date of payment of this special allowance is not based on the date of the claim, except that the date of payment cannot be prior to August 13, 1981. The last sentence of initially proposed § 5.588(e), based on current § 3.812(e), limits retroactive payment of the special allowance contrary to the governing statute. Current VA practice is consistent with this interpretation of the statute.

We propose to update the statutory authority citations contained in initially proposed §§ 5.589 and 5.590 to reflect that sec. 102(a)(1) of Public Law 108-183, 117 Stat. 2651, 2653, redesignated 38 U.S.C. 1822, 1823, and 1824 as 38 U.S.C. 1832, 1833, and 1834, respectively.

§ 5.589 Monetary Allowance for a Vietnam Veteran or a Veteran With Covered Service in Korea Whose Child Was Born With Spina Bifida

In § 5.589, we propose to replace the term “individual” with “person” to maintain consistency in our usage throughout the regulations. We have also modified the wording of initially proposed § 5.589(b) to clarify any ambiguity resulting from this change.

On January 25, 2011, VA published Final Rule AN27, “Herbicide Exposure and Veterans with Covered Service in Korea” to implement the Veterans Benefits Act of 2003, Public Law 108-183, 117 Stat. 2651. 76 FR 4245. We propose to incorporate these provisions as a new paragraph (c)(2) in § 5.589 and make conforming amendments to §§ 5.57(b), 5.150(a), 5.152(a) and (d), 5.228(a), 5.262(a)(1)(ii), 5.589(a) and (e), 5.590(i), and 5.591.

In redesignated § 5.589(c)(3) we propose to change the last sentence of initially proposed § 5.589(c)(2) for clarification purposes.

§ 5.590 Monetary Allowance for a Female Vietnam Veteran's Child With Certain Birth Defects

In § 5.590, we propose to replace the term “individual” with “person” to maintain consistency in our usage throughout the regulations. We have also modified the wording of initially proposed § 5.590(b) to clarify any ambiguity resulting from this change. We also propose to clarify the regulation text of § 5.590(b) to reflect that that provision is subject to § 5.590(a)(3), which governs the payment of monetary allowance where a covered birth defect is spina bifida. We propose to add the phrase, “[e]xcept as provided in paragraph (a)(3) of this section”.

In proposed §§ 5.589(a) and 5.590(a), we propose to add language from § 3.27(c), providing for an increase in monthly allowance rates under 38 U.S.C. chapter 18 whenever there is a cost-of-living increase in benefit amounts payable under the Social Security Act. We inadvertently failed to add this language in the initially proposed rule and propose to add it now.

§ 5.591 Effective Date of Award for a Disabled Child of a Vietnam Veteran or a Veteran With Covered Service in Korea

We propose to delete initially proposed § 5.591(a)(6). Paragraph (a)(6) stated a general rule applicable to all effective dates. Because this general rule is stated in § 5.152(a), there is no need to restate it here.

§ 5.592 Awards Under Nehmer Court Orders for Disability or Death Caused by a Condition Presumptively Associated with Herbicide Exposure

We propose to add § 5.592. It is the counterpart to current § 3.816, which we inadvertently omitted from the March 9, 2007, notice of proposed rulemaking for these rules. 72 FR 10860. We intend to insert it here.

Paragraph (b)(2) of § 3.816 states, in pertinent part, “Covered herbicide disease means a disease for which the Secretary of Veterans Affairs has established a presumption of service connection before October 1, 2002 pursuant to the Agent Orange Act of 1991, Public Law 102-4, other than chloracne.” In July 2007, the U.S. Court of Appeals for the Ninth Circuit rejected VA's position that its duties under the Nehmer stipulation have ended and held that VA's duties extend through at least 2015. Nehmer v. U.S. Dept. of Veterans Affairs, 494 F.3d 846, 862-63 (9th Cir. 2007). Accordingly, the requirements of the Nehmer court orders for review of previously denied claims and for retroactive payment apply to new presumptions. We therefore propose to omit the phrase “before October 1, 2002,” from § 5.592. We also propose to update § 5.592(b)(2) to encompass the presumptive diseases listed in § 3.309(e), by cross referencing § 5.262(e). 38 CFR part 3 has already been amended to remove this date and the removal of the date from part 5 conforms to the part 3 change. 78 FR 54763, Sept. 6, 2013.

§ 5.603 Financial Assistance To Purchase a Vehicle or Adaptive Equipment

One commenter stated that “proposed § 5.603(b)(1)(ii) establishes limitations on the types of adaptive equipment for which an eligible person may receive financial assistance from VA to purchase.” The commenter was concerned that the list of adaptive equipment found in initially proposed § 5.603(b)(1)(ii) would exclude any equipment not listed in that section.

The commenter pointed out that parts of the authorizing statutes and parts of current VA regulations use “but is not limited to” in conjunction with “includes”. Further, other regulations in the initially proposed rule used language such as “including, but not limited to”.

In order to eliminate any confusion, we propose to adopt the commenter's suggestion and add the “but is not limited to” language to § 5.603(b)(1)(ii), to read, “Adaptive equipment includes, but is not limited to: ”. For the same reason, we propose to add similar language to §§ 5.589(d)(2), 5.590(d)(1)(xii), 5.590(d)(2), 5.590(d)(6)(ii), 5.590(e)(1)(ii)(B), 5.590(e)(1)(iii)(B), 5.590(e)(1)(iv)(D), 5.590(e)(1)(v)(C), 5.590(e)(2)(i), 5.606(b)(1), and 5.606(b)(2).

We propose to change the regulation text in initially proposed § 5.603(b)(1)(i) to conform with the language of current § 3.808(e). The initially proposed text did not include part of the required text. The text will read, “`Adaptive equipment' means equipment that must be part of or added to a vehicle manufactured for sale to the general public to:”.

Initially proposed paragraph (b)(1)(ii)(A) said, “Automatic transmission as to an eligible person who has lost, or lost the use of, a limb”. We propose to delete “as to an eligible person who has lost, or lost the use of, a limb”, because with that phrase in the regulation the eligible person with ankylosis of the knees or hips would not qualify for VA assistance to obtain an automatic transmission.

We propose to combine initially proposed § 5.603(b)(1)(ii)(D) and (F) (which were based on 38 CFR 3.808(e)(2) and (3)) as paragraph (b)(1)(ii)(D). They were substantially redundant. It was the intent of both § 3.808(e)(2) and (3) to set limits on the amount of assistance that VA may pay for adaptive equipment. We have always interpreted these two regulations in this way. This interpretation is also in accordance with 38 CFR 17.158(b), which also sets the same limitations on the amount of assistance for adaptive equipment.

We propose to delete initially proposed § 5.603(b)(1)(ii)(C) and redesignate initially proposed § 5.603(b)(1)(ii)(E) as § 5.603(b)(1)(ii)(C). Start Printed Page 71135The requirement that an air conditioner be included in the list of adaptive equipment is no longer necessary. The vast majority of new cars have air conditioners included in their standard equipment package. If VA were to receive a claim for an air conditioner, this claim could be granted because § 5.603(b)(1)(ii) contains the phrase “includes, but is not limited to”, which advises the reader that this is not an exclusive list.

In paragraph (c)(2), we propose to change the phrase “loss or permanent loss of use [of a named body part]” to “Anatomical loss or permanent loss of use [of a named body part].” We intend to make this change throughout part 5. Part 3 uses both phrases interchangeably, sometimes in a single regulation and this resulted in confusion. See, for example, 38 CFR 3.350.

The statute defining the disabilities a person must have to be eligible for an automobile or adaptive equipment requires “loss or permanent loss of use” of particular body parts, 38 U.S.C. 3901, and VA interprets “loss” in that phrase as meaning anatomical loss. This interpretation is consistent with the qualification for certain levels of special monthly compensation for “anatomical loss or loss of use”. See 38 U.S.C. 1114(k) through (n) and (p). We propose to change “loss of” to “anatomical loss or” in § 5.606, paragraph (b), for the same reason. We note that 38 CFR 3.810(a)(1) pertains to clothing allowance for veterans with disabilities rated as specified in § 3.350(a), (b), (c), (d), and (f), which implement provisions of 38 U.S.C. 1114 that authorize special monthly compensation for anatomical loss or loss of use [of a named body part]. Therefore, this change is consistent with statutory intent.

We propose to revise initially proposed paragraph (c)(2)(iv) to make clear that a person with ankylosis of one or both knees, or one or both hips may only receive financial assistance to purchase adaptive equipment.

Section 803 of Public Law 111-275, 124 Stat. 2864, 2889 (2010) amended 38 U.S.C. 3901 which lists the disabilities that qualify a veteran for VA assistance to purchase a vehicle or adaptive equipment for a vehicle. We propose to add paragraph (c)(2)(v) to implement the statutory amendment by adding “[s]evere burn injury” as a qualifying disability. Section 803 indicated that what qualifies as a “severe burn injury” for purposes of obtaining automobile or adaptive equipment will be “determined pursuant to regulations prescribed by the Secretary.” VA's Compensation Service is drafting a rulemaking to comply with that provision in 38 CFR part 3. Once that has been completed, the new regulatory language will be incorporated into § 5.603.

We propose to redesignate paragraph (c)(3) as paragraph (d)(1), because the content of paragraph (c)(3) is more relevant to the subject of paragraph (d), “Limitations on assistance”, than to paragraph (c), “Eligibility criteria.” We also propose to add a provision to paragraph (d)(1)(i) based on 38 U.S.C. 3902(d), that VA will assist a person who cannot qualify to operate a vehicle to purchase a vehicle, if another person will drive the vehicle for him or her.

As a result of redesignating initially proposed paragraph (c)(3) as paragraph (d)(1), we propose to redesignate initially proposed paragraphs (d)(1) and (d)(2) as paragraphs (d)(2) and (d)(3). We propose to clarify the text in redesignated § 5.603(d)(3). As written, the initially proposed text failed to include the reference to circumstances beyond the control of the eligible person. We propose to revise the text by inserting the phrase, “due to circumstances beyond the eligible person's control,” between “a 4-year period unless,” and “one of the adapted vehicles”. We also propose to add to the second sentence the words “or reimbursements” after “payments”, because we unintentionally omitted it from the original text. We therefore propose to revise the sentence to read, “The Under Secretary for Health or designee may authorize payments or reimbursements for the repair, replacement, or reinstallation of adaptive equipment deemed necessary for the operation of the vehicle.” We also propose to delete “§§ 17.156 through” from the cross reference, which is now only to § 17.158, because §§ 17.156 and 17.157 do not pertain to the subject of the cross reference.

We have determined that initially proposed § 5.603(f), “Redemption of certificate of eligibility”, was inaccurate. Therefore, we propose to restructure this paragraph to encompass both the purchase of the vehicle and the purchase of adaptive equipment. Paragraphs (f)(1)(i) and (2)(i) address redemption of a certificate of eligibility by the seller, and paragraphs (f)(1)(ii) and (2)(ii) address redemption of a certificate of eligibility by the eligible person. Together, these paragraphs cover the scenarios where the vehicle or adaptive equipment was purchased prior to an eligible person acquiring the certificate of eligibility.

§ 5.604 Specially Adapted Housing Under 38 U.S.C. 2101(a)

In our proposed rulemaking, 72 FR 10860, Mar. 9, 2007, we had reserved §§ 5.604 and 5.605 while VA completed a rulemaking to implement housing provisions of the Veterans Benefits Act of 2003, the Veterans Benefits Improvement Act of 2004, the Veterans' Housing Opportunity and Benefits Improvement Act of 2006, and the Housing and Economic Recovery Act of 2008. VA has now amended 38 CFR 3.809, “Specially Adapted Housing under 38 U.S.C. 2101(a)”, and § 3.809a, “Special Home Adaptation Grants under 38 U.S.C. 2101(b)”. 75 FR 57859, Sept. 23, 2010. We now propose to incorporate §§ 3.809 and 3.809a, as amended, into part 5 with several stylistic changes.

§ 5.606 Clothing Allowance

We propose to clarify initially proposed § 5.606(a) to state: “VA will pay an annual clothing allowance to a veteran with a qualifying disability. However, VA will pay more than one annual clothing allowance if VA determines that the veteran has more than one qualifying disability.” This is consistent with the decision in Sursely v. Peake, 551 F.3d 1351, (Fed. Cir. 2009). The court held that Congress intended to allow each eligible veteran one clothing allowance per year per qualifying disability. On February, 2, 2011 VA proposed a rule, AN64 Clothing Allowance, to implement Sursely. 76 FR 5733. Once the Final Rule has been published, it will be incorporated into § 5.606.

We also propose to clarify the term “veteran” as it applies to a person who is eligible for clothing allowance. VA General Counsel's opinion VAOPGCPREC 4-2010, (May 25, 2010), held that the “term [veteran] includes individuals who have returned to active duty after previously meeting the definition of `veteran.' ” We propose to incorporate this holding in proposed § 5.606(a).

We propose to consolidate initially proposed § 5.606(a), (b), and (b)(1) for clarity and simplicity, without changing the meaning.

Initially proposed § 5.606(b)(2) addressed all service-connected disabilities for which the veteran wears or uses a prosthetic or orthopedic appliance that wears or tears clothing. Current § 3.810 distinguishes disabilities compensated at a rate specified in § 3.350(a) through (d) or (f) and other service-connected disabilities that require an appliance. We propose to revise the paragraph to maintain the Start Printed Page 71136distinction in the current regulation. We propose to address the disabilities compensated at the rate specified in §§ 5.322 through 5.329, 5.331, or § 5.332 and redesignate the paragraph as (b)(1).

Initially proposed § 5.606(b)(2) did not distinguish between applications for clothing allowance that VA can grant after a required examination and those that require certification by the Under Secretary for Health or designee, as does current § 3.810. We propose to revise the paragraph to maintain this distinction, and redesignate it as paragraphs (b)(1) through (3).

In initially proposed § 5.606(b)(2), we used the term “VA determines” in place of the term “Chief Medical Director or designee”, which part 3 uses for the VA office now designated as Under Secretary for Health. We propose to revise paragraph (b)(2) to use “Under Secretary for Health or designee”. This change eliminates any ambiguity about who makes the determination.

We propose to change § 5.606(c)(1) and (2) to state the circumstances in which the veteran need not file the claim for a clothing allowance annually. VA has provided for the annual clothing allowance without requiring the filing of an annual claim, as stated in paragraphs (c)(1) and (2), since the inception of the clothing allowance benefit in 1972. VA form 10-8678, “Application for Annual Clothing Allowance (Under 38 U.S.C. 1162)”, implements this long-standing practice.

We propose to rewrite initially proposed § 5.606(d) for clarity. We propose to delete the term “anniversary date”. Although we had defined the term, we have determined that it is confusing to the reader, and have opted to use the actual date of August 1 instead. We also propose to define the “payment year” for which VA pays the annual clothing allowance as the “12-month period beginning August 1 and ending July 31 of the following year.” For this reason, we propose to delete the term “anniversary date” in § 5.606(e) as well.

We propose to rewrite initially proposed § 5.606(e) for clarity. We propose to change “within 1 year of” and “within 1 year from” to “no later than 1 year after”. This change makes clear that the time to file a claim relative to August 1 means the year after August 1. We also propose to remove the term “initial anniversary date” and instead, describe the first period for which VA pays a veteran a clothing allowance as the “initial year of payment eligibility”.

We propose to remove initially proposed § 5.606(f). Paragraph (f) contained information already in Subpart I of part 5, which pertains to Filipino veterans. One purpose of proposed Subpart I is to assemble in one place all of the adjudication regulations dealing with benefits for certain Filipino veterans. It would be redundant to repeat that information in § 5.606. Additionally, paragraph (f) stated that claims for clothing allowance by Filipino veterans are processed in Manila. This is purely a matter of internal VA administration of claims. The paragraph conferred no benefit on the veteran, and it did not require the claimant to take any action. We propose to remove the paragraph as an unnecessary regulation.

We propose to remove initially proposed § 5.606(g). Paragraph (g) informed the veteran living abroad that the VA Medical Center (VAMC) with jurisdiction over his permanent address has jurisdiction over a claim for a clothing allowance. The assignment of claims to specific facilities is purely a matter of internal VA administration of claims. The paragraph conferred no benefit on the veteran. We propose to remove the paragraph as an unnecessary regulation. As a result of removing paragraphs (f) and (g), we will redesignate paragraph (h) as paragraph (f).

Technical Corrections

In addition to considering any necessary changes to proposed part 5 regulations based on comments received from the public, we propose to make certain additional changes in this reproposed rule: adding, updating, and moving some authority citations, correcting a citation, and correcting citation format. For example, proposed § 5.584, “Loan guaranty for a surviving spouse: eligibility requirements”, lacked an authority citation at the end of the section. We intend to correct this omission by adding the authority citation, 38 U.S.C. 3701(b)(2). We also propose to add to the authority citation for § 5.587.

Changes in Terminology

For consistency of terminology throughout part 5, we propose to replace the term “evaluation” with the term “rating”, and “evaluated” with “rated”, whenever either appears in §§ 5.589(d), 5.590(a)(3), and 5.590(e).

We also propose to correct our use of the terms “claim” and “application”. Under 38 CFR 3.1(p), “Claim-Application” is defined as “a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit.” Under § 5.1, “Claim” is defined as “a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.” Under § 5.1, “Application” is defined as “a specific form required by the Secretary that a claimant must file to apply for a benefit.” Accordingly, the following changes are proposed to be made. We propose that the words “formal application” be replaced with the word “claim” every time they appear in § 5.581(b), and the phrase “in the form prescribed by VA” be removed. We also propose that the phrase “on a form prescribed” be removed from § 5.583(c). We also propose that the words “an application” be replaced with the words “a claim” in the introductory text of § 5.584. In addition, we propose that the phrases and word “on a form prescribed by the Secretary of Veterans Affairs”, “form”, and “on the prescribed form” be removed from § 5.588(e). Finally, we propose that the words “application form” and “application” be replaced with the word “claim” in every place they appeared in initially proposed §§ 5.603(d)(1), 5.606(b)(3), and 5.606(e).

XIV. Subpart I: Benefits for Certain Filipino Veterans and Survivors

In a document published in the Federal Register on June 30, 2006, we proposed to revise VA's regulations governing benefits for certain Filipino veterans and their survivors, to be published in a new 38 CFR part 5. 71 FR 37790. The title of this proposed rulemaking was, “Benefits for Certain Filipino Veterans and Survivors” (RIN: 2900-AL76). We provided a 60-day comment period that ended August 29, 2006. We did not receive any submissions from commenters pertaining to this proposed rule.

Although no comments were received regarding our publication on June 30, 2006, an internal review of proposed Subpart I revealed minor typographical errors and a need for further clarification in several areas. Accordingly, based on the rationale set forth in the initially proposed rule and this proposed document, we propose to adopt the provisions of proposed Subpart I, with the following changes discussed below.

Publication of Revisions to Subparts

The publication for proposed Subpart I also contained minor revisions to Subpart B, “Service Requirements for Veterans”, and Subpart E, “Claims for Service Connection and Disability Compensation”, which had been previously published in proposed rulemaking packages. Those revisions will be contained in this proposed rule segment. The package for Subpart I was Start Printed Page 71137one of two packages that contained revisions to other subparts, and since then we have decided to publish all revisions to the various subparts together in this proposed rule in order to facilitate an easier referencing process.

§ 5.610 Eligibility for VA Benefits Based on Philippine Service

Initially proposed § 5.610(b)(3) incorrectly stated that service as an officer commissioned in connection with administration of Public Law 79-190 is not active military service for purposes of VA benefits. Administrator's Decision 778 (Mar. 5, 1948) concluded that service as a commissioned officer in connection with administration of Public Law 79-190 would constitute regular active military service—that is, it would qualify for all benefits available to U.S. veterans. Among other things, that opinion noted that because such commissioned service was not service pursuant to section 11 of Public Law 79-190 (relating to enlistments), it was not subject to the limitations currently codified in 38 U.S.C. 107(b). Therefore, we propose to correct this error in paragraph (a) of § 5.610.

In § 5.610(c)(1), we propose to change “General Officer, U.S. Army” to “Commander-in-Chief, Southwest Pacific Area, or other competent authority in the Army of the U.S.” to further specify the type of authority needed to establish active military service in the Commonwealth Army of the Philippines.

§ 5.613 Payment of Disability Compensation or Dependency and Indemnity Compensation at the Full Dollar Rate for Certain Filipino Veterans or Their Survivors Residing in the U.S.

In order to clarify the list of acceptable items of evidence in regards to a veteran's or veteran's survivor's eligibility for compensation at the full-dollar rate under § 5.613(c)(2) and a veteran's burial benefits at the full-dollar rate under § 5.617(c)(2), a valid original or a valid copy of any of the enumerated items, such as a U.S. passport, is required. In both instances, we propose to add the modifier word “valid” to the terms “copy” and “original”, and remove the unnecessary word “valid” in front of “U.S. passport”.

§ 5.614 Effective Dates of Benefits at the Full-Dollar Rate for a Filipino Veteran and His or Her Survivor

We propose to divide initially proposed § 5.614(b)(3) into paragraphs (b)(3) and (b)(4) and clarify these provisions. First, we propose to insert the word “veteran's” before “survivor” in both places where the term “survivor” is used. Second, we propose to clearly set out the rules for the following classes of beneficiaries: those who were absent from the U.S. for a total of 183 days or more and returned to the U.S. during the same calendar year, and those who were absent from the U.S. for a total of 183 days or more and returned to the U.S. in a later calendar year but less than 183 days after the beginning of such calendar year. This revision does not reflect a new policy; rather it is a clarification of current § 3.405(b)(2). We also propose to redesignate the remaining paragraphs under § 5.614(b) accordingly.

Technical Corrections

We propose to make several changes to certain provisions describing the dates relevant to eligibility for burial benefits at the full-dollar rate. Initially proposed § 5.610(b)(1) and the chart in initially proposed § 5.612 referred to deaths occurring “on or after December 16, 2003”. We propose to revise this to refer to deaths occurring “after December 15, 2003” in order to conform to the format used in current 38 CFR 3.43 and the format generally used for dates throughout part 5. Initially proposed § 5.617(b) referred to deaths occurring “after November 1, 2000”. However, the corresponding provisions of the chart in proposed § 5.612 inaccurately referred to deaths occurring “on or after 11/1/00”. As stated in the notice of proposed rulemaking, the chart in § 5.612 is intended only to summarize the provisions in Subpart I and not to confer any additional rights. Accordingly, we propose to correct the inadvertent error in the chart by replacing “on or after 11/1/00” with “after 11/1/00” to ensure that the chart accurately reflects the applicable rule.

XV. Subpart J: Burial Benefits

In a document published in the Federal Register on April 08, 2008, we proposed to revise Department of Veterans Affairs (VA) regulations governing burial benefits, to be published in a new 38 CFR part 5. 73 FR 19021. The title of this proposed rulemaking was “Burial Benefits” (RIN: 2900-AL72). We provided a 60-day comment period that ended June 9, 2008. We received submissions from two commenters: two members of the general public.

General Comment

One commenter expressed satisfaction with the rewritten provisions in proposed RIN 2900-AL72, “Burial Benefits”. The commenter explained that veterans have a right to these more detailed regulations with a “plain layout” that one “can read . . . without any misunderstanding.” The commenter went on to say that “there is nothing wrong with being more straight forward with the provisions especially when it comes to burial provisions. Pass the rule and be done with it, let the confusion be dismissed.” No changes to the proposed rule were suggested. Although we are pleased that the commenter finds these rules an improvement over part 3, we regret that we cannot accelerate the effective date of one subpart of part 5 because, administratively, it would be too cumbersome and costly to establish part 5 in stages. We propose not to make any changes based on this comment.

§ 5.630 Types of VA Burial Benefits

We propose to add a definition of “burial” as new paragraph (b) to ensure that readers know that VA pays burial benefits for all the legal methods of disposing of the remains of deceased persons, including, but not limited to, cremation, burial at sea, and medical school donation.

We propose to revise this paragraph by adding the phrase “or interment” after “memorialization” to clarify the distinction between interment and memorialization. Interment refers to placing a body into the ground. Memorialization honors a person whose remains have not been found.

In addition, to avoid potential confusion for readers, we propose to clarify that the burial regulations in part 5 do not apply to the benefit programs listed in paragraph (c), which operate under separate statutes and regulations.

§ 5.631 Deceased Veterans for Whom VA May Provide Burial Benefits

We propose to redesignate the paragraphs of this rule according to the revisions described below. First, we propose to delete initially proposed paragraph (b), which had required that the veteran upon whom a claim for burial benefits is based to have been discharged or released from service under conditions other than dishonorable, and added such a requirement to what is now proposed paragraph (a). This makes the rule simpler to read and easier to apply.

Second, we propose to delete initially proposed paragraph § 5.631(c). This paragraph was derived from current 38 CFR 3.1600(d). The paragraph was ambiguously written, but was intended to state merely that VA can reopen a claim for service-connected death if new and material evidence is presented. This rule is not a rule concerning burial Start Printed Page 71138benefits, but is a more general rule that can affect the provision of any benefit based on a service-connected death. We propose to delete initially proposed § 5.631(c) for these reasons, and because it is redundant of the new-and-material-evidence rule found in § 5.55.

§ 5.633 Claims for Burial Benefits

We propose to revise § 5.633 (a)(1) to clarify that a claim to reopen nonservice-connected burial allowance must be filed no later than 2 years after the date of the veteran's burial. This revision is consistent with § 3.1600(b), and current VA practice.

In paragraph (a)(2), we propose to revise the first sentence to eliminate any reference to the nonservice-connected burial allowance. Neither the law nor VA policy prevents providing the service-connected burial allowance to a person whose discharge is upgraded posthumously. The initially proposed regulation had not provided for such a limitation because, although this specific provision had applied only to nonservice-connected burial benefits, there was no time limit to file a claim for service-connected burial benefits and, therefore, there was no bar against filing a claim (or a claim to reopen) for a service-connected burial allowance at any time after the veteran's death. However, the regulation is clearer without the reference to nonservice-connected burial benefits in the first sentence because it cannot be misinterpreted as a rule that limits to the nonservice-connected burial allowance the applicability of an award based on a posthumously upgraded character of discharge.

In initially proposed § 5.633(b)(1), we stated, “Evidence required to substantiate a claim for burial benefits must be submitted no later than 1 year after the date VA requests such evidence.” This sentence was based on current § 3.1601(b), which was intended to implement 38 U.S.C. 2304. That statute provides, in pertinent part:

If a claimant's application is incomplete at the time it is originally submitted, the Secretary shall notify the applicant of the evidence necessary to complete the application. If such evidence is not received within one year from the date of such notification, no [non-service connected burial] allowance may be paid.

Instead of using § 3.1601(b)'s term, “complete a claim”, we mistakenly used “substantiate a claim”. The rule on filing of evidence to “substantiate [a] claim” is contained in the portion of § 5.90 that is based on current § 3.159(b)(1). See also § 5.136, which is based on current § 3.158(a). The rules on filing an “incomplete application” are contained in the portion of § 5.90 that is based on current §§ 3.109(a)(1) and 3.159(b)(2). Because these rules are already contained elsewhere in part 5, there is no need to repeat them in subpart J and so we propose to delete the above referenced sentence from § 5.633(b)(1).

One commenter suggested that § 5.633(b)(1)(iii), regarding the information needed in a statement of account, should read “the dates of expenses incurred for services rendered” and not “the dates and expenses incurred for services rendered”. We disagree with the commenter's suggestion. By placing “of” instead of “and” in this part of § 5.633(b)(1)(iii), the meaning of the regulation would be changed. Using the word “of” in this context would restrict the information that VA requires for a statement of account to only the dates on which the expenses were incurred. In contrast, using the word “and” signifies that VA requires the dates as well as the expenses incurred for the services rendered. This interpretation is supported by the similar language found in § 3.1601(b), upon which § 5.633(b) is based. However, we propose to clarify the sentence to eliminate the possibility that it could be read to refer only to the dates of the expenses incurred.

We propose to revise initially proposed § 5.633(b)(1)(iv) for clarity, and to eliminate redundancy.

§ 5.634 Reimbursable Burial Expenses: General

Initially proposed § 5.634(b)(2) had barred reimbursement for an item or service “previously provided or paid for by the U.S. Government.” We propose to clarify this sentence because we will, in fact, reimburse for the cost of a uniform if a new uniform was purchased because the veteran's service uniform was not in a condition suitable for burial.

§ 5.635 Reimbursable Transportation Expenses for a Veteran Who is Buried in a National Cemetery or Who Died While Hospitalized by VA

A commenter suggested that the word “persons” should be replaced by the word “veterans” in the introductory sentence of § 5.635. The commenter stated that otherwise it is awkward wording since the sections referred to in the introduction, §§ 5.639 and 5.644, do refer to veterans specifically. We understood the commenter's point to be that VA will only reimburse expenses connected with the transportation of a deceased veteran. To the extent that the introductory sentence to the regulation could have been read otherwise by use of the word “persons”, we propose to revise the sentence for clarity.

Proposed paragraphs § 5.635(a) and (b) are not an exclusive list of reimbursable transportation expenses. We propose to reword and add the phrase “but are not limited to” to the introductory sentence in § 5.635, in order to be consistent with § 3.1606 and with current practice.

§§ 5.643 Burial Allowance Based on Nonservice-connected Death, and 5.644 Burial Allowance for a Veteran Who Died While Hospitalized by VA

A commenter suggested that we replace “based upon” with “for” in §§ 5.643(b) and 5.644(b). The commenter believes that the revision would make the regulatory language plainer, simpler, and more reader-focused. We agree with the suggestion and propose to replace the words “based upon” with “for” in the introductory sentences of §§ 5.643(b) and 5.644(b).

§ 5.644 Burial Allowance for a Veteran Who Died While Hospitalized by VA

One commenter questioned the reasoning behind referring to the Canal Zone in § 5.644(d). The commenter stated that since the U.S. returned ownership of the Canal Zone to Panama, the location should not be listed. Section 5.644 listed the Canal Zone because it is included in the applicable statute (see 38 U.S.C. 101(20)). However, we now propose to include the Canal Zone in our definition of “State” in § 5.1, as stated above. Therefore, we propose to remove all references to the Canal Zone in proposed § 5.644(d), and simply use the term “State”.

We received one comment regarding a proposal not to include a part 5 counterpart to § 3.1605(b), which denies eligibility for transportation expenses to “retired persons hospitalized under section 5 of Executive Order 10122 . . . issued pursuant to Public Law 351, 81st Congress, and not as Department of Veterans Affairs beneficiaries”. Section 5 of Executive Order 10122 relates to current and former servicemembers who had been hospitalized for chronic diseases between May and October of 1950. The commenter noted that, in a preliminary draft, VA proposed to delete this section. The commenter approved removing this section, but only if there was evidence that removing it would not affect any veteran's benefits.

As stated in the AL72 NPRM preamble, we proposed not to include in part 5 the rule in current § 3.1605(b) that denies eligibility for transportation expenses to “retired persons Start Printed Page 71139hospitalized under section 5 of Executive Order 10122 . . . issued pursuant to Pub. L. 351, 81st Congress, and not as Department of Veterans Affairs beneficiaries.” Section 5 of Executive Order 10122 related to current and former servicemembers who had been hospitalized for chronic diseases between May and October of 1950. Executive Order 10122 is more than half a century old and applied to a very small group of veterans. The reference is outdated and no longer necessary. In response to the comment, we note that if any such claim arises in the future, VA will process it under Public Law 351, 81st Congress, and Executive Order 10122, so no veterans benefits will be affected by the omission from part 5.

§ 5.649 Priority of Payments When There is More Than One Claimant

We propose to clarify initially proposed § 5.649(e) to state that “Any claimant may waive his or her right to receive burial benefits in favor of assigning his or her right to another claimant.” This change is consistent with current VA practice.

§ 5.651 Effect of Contributions by Government, Public, or Private Organizations

In § 5.651(c)(2), we propose to use active voice to clarify that VA will not pay burial allowance in the circumstances stated. We also propose to improve readability by changing “in” to “occurring during” before “active military service”, and removing the comma after “service”.

Technical Corrections

One commenter pointed out several necessary technical changes and a correction that we propose to make. First, we propose to move the misplaced opening parenthesis in § 5.636(a)(2)(ii). Second, we propose to correct the grammar when referring to interment in §§ 5.638(c)(2) and 5.643(e)(2) by adding the word “a” before “State veterans cemetery”, both places these words appear. Finally, we propose to correct the date in § 5.653 from “December 1, 1957” to correctly read “December 31, 1957”, as provided in the enabling statute, 38 U.S.C. 2305.

In addition to considering any necessary changes to proposed part 5 regulations based on comments received from the public, we propose to make certain technical corrections. For example, we propose to replace “in line of duty” with “in the line of duty”. In addition, the initially proposed rule used “at the time of death” interchangeably with “on the date of death”. In most VA claims, the time of death is not relevant, only the date of death. The only exception is § 5.644(b)(6), which discusses whether a veteran was hospitalized by VA but was not at the VA facility at the time of death. We therefore propose to replace “at the time of death” with “on the date of death” throughout the burial regulations. These changes are meant to achieve consistency throughout the part 5 regulations.

XVI. Subpart K: Matters Affecting the Receipt of Benefits

In a document published in the Federal Register on May 31, 2006, we proposed to revise VA regulations governing matters affecting the receipt of benefits, to be published in a new 38 CFR part 5. 71 FR 31056. The title of this proposed rulemaking was “Matters Affecting the Receipt of Benefits” (RIN: 2900-AM05). We provided a 60-day comment period that ended on July 31, 2006. We received submissions from four commenters: American Psychiatric Association, Disabled American Veterans, the National Organization of Veterans' Advocates, and Vietnam Veterans of America.

§ 5.660 In the Line of Duty

Initially proposed § 5.660(a) stated, “Except as provided in § 3.310 of this chapter, VA may grant service connection only for an injury, disease, or cause of death that was incurred or aggravated in line of duty.” This was a misstatement of the language in § 3.301(a) that states, “. . . service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the veteran's own willful misconduct. . .” Under its authorizing statutes, VA service connects disability or death, not injury or disease per se, so we propose to correct § 5.660(a) to read, “. . . VA may grant service connection only for a disability or death that was incurred or aggravated in the line of duty.”

Initially proposed § 5.660(c)(4) provided that an injury was not incurred in the line of duty if it was incurred while the veteran was “Confined under a sentence of civil court for a felony as determined under the laws of the jurisdiction where the veteran was convicted by such court.” A virtually identical rule appears in 38 U.S.C. 105(b). However, we were concerned that the phrase “civil court” could be misconstrued to exclude a criminal court. Clearly, such an interpretation is incorrect as shown by the statutory and regulatory references to a felony. We interpret the statutory reference to a “civil” court to be a reference to a court other than a U.S. military court, that is, it refers to a “civilian” court, and propose to modify the paragraph accordingly.

Initially proposed § 5.660(d) read, “A service department finding that injury, disease, or death occurred in line of duty will be binding on VA unless the finding is patently (clearly) inconsistent with the laws administered by VA.” In responding to our proposed rule, a commenter opined that use of the terms “patently” and “clearly” created a new evidentiary standard, and suggested that VA “stick with evidentiary standards for which there are precedents in VA law.”

Under our current regulation, 38 CFR 3.1(m), a service department line-of-duty finding is binding on VA unless it is “patently inconsistent with” VA law. The purpose of this regulatory presumption is pro-veteran; VA does not intend to question a service department line-of-duty finding unless that finding would lead to a result that is contrary to the laws concerning the provision of veterans' benefits. An example of such an inconsistent finding might be that a veteran's injury was incurred as a result of the abuse of alcohol, but nevertheless was in the line of duty. VA could not accept such a finding because we are barred from providing service-connected disability compensation if “the disability is the result of . . . abuse of alcohol”. 38 U.S.C. 1110.

The binding nature of a service-department line-of-duty finding is a regulatory interpretation of 38 U.S.C. 105(b), which reads that, “The requirement for line of duty will not be met” if the veteran was avoiding duty, confined under sentence of court martial or for felony charges in a civil court, etcetera. These are all legal issues where, as a matter of law, the veteran was not performing a duty for the military. There is no need to weigh evidence under such circumstances because, as a matter of law, the evidence cannot overcome the statutory bar. For this reason, we reject the commenter's suggestion that we use a common evidentiary standard of proof in this situation; the question is neither about the quality of the evidence, nor the weight of the evidence. For these reasons, we also do not describe the evidentiary rule as a “presumption.” Therefore, we propose not to revise the rule to include a standard of proof.

However, based on the comment, we understand that addition of the word “(clearly)” caused confusion, leading the commenter to believe that this regulation does in fact establish an evidentiary burden. Therefore, we Start Printed Page 71140propose to use the language in current § 3.1(m), which uses the word “patently”, without “(clearly)”.

We note that the above analysis does not apply in the same way to § 5.661(f), which also proposed to use the phrase, “patently (clearly)”, as discussed below.

§ 5.661 Willful Misconduct

We have determined that the definitions of “willful misconduct”, “proximately caused”, and “drugs” proposed in the NPRM should be moved into § 5.1, “General definitions”, because they relate to other sections in addition to those found in this subpart.

One commenter suggested that VA should adjudicate claims in the following manner:

• Identify the act that was the proximate cause of the disability; and then,
• Determine whether that act constituted willful misconduct.

For the reasons stated below, we propose to make no changes based on this comment.

A chronic disability first shown in service or aggravated by service is considered to have been incurred in the line of duty unless (1) it is not an injury or disease “within the meaning of applicable legislation”, see 38 CFR 3.303(c); or (2) the evidence shows that the disability was due to willful misconduct. A determination of whether willful misconduct is the proximate cause of a claimed disability is only made when the evidence shows or indicates the disability may have been caused by the veteran's willful misconduct. If there is evidence that the disability may have been due to willful misconduct, the adjudicator develops for additional evidence, if needed. The entire body of evidence is reviewed and the determination concerning proximate cause and willful misconduct are made at the same time based on the same evidence. If the claimed disability was not proximately caused by willful misconduct, service connection is granted. We propose to make no changes based on this comment because it might lead a reader to mistakenly believe that VA develops the issue of willful misconduct in every claim for service connection. In addition, we do not believe it is generally appropriate to mandate the precise order in which VA adjudicators must consider the evidence in a particular adjudication, because the most effective order may depend on the facts of the case.

One commenter expressed the opinion that the words “substance,” “alcohol,” “addiction,” and “frequent” should be defined. We decline to do so by regulation because these words have commonly understood meanings. We propose to make no changes based on this comment.

One commenter noted that VA referred to alcohol and drugs separately, which could cause confusion because, the commenter asserted, alcohol is also a drug. In 38 U.S.C. 105(a), Congress identified the use of alcohol and drugs, separately. 38 U.S.C. 105(a) (barring a line-of-duty finding where injury or disease was a result of “abuse of alcohol or drugs”). Our regulation uses both terms for consistency with the statute.

One commenter was concerned with whether the frequency of use or the addiction of the user was to be used by VA to determine willful misconduct. The commenter suggested the regulation be amended to clarify which standard was to be used. There are two issues here. First, whether the addiction itself may be service connected, and second, whether a disability that was proximately caused by frequency of use or addiction to alcohol or drugs may be service-connected. The law is clear that primary disability of addiction, at least when such addiction is due to alcohol or drug abuse, cannot be service connected. 38 U.S.C. 1110. We propose to make no changes based on this portion of the comment.

Neither frequency of use nor addiction of the user determines whether an event is due to willful misconduct. Rather, the determination is based on whether the veteran was intoxicated by drugs or alcohol at the time of the event that caused the disability, and whether that intoxication was the proximate cause of the disability. See § 5.661(c)(1)(i) and (ii), (c)(2)(i) and (ii). Because VA considers neither addiction nor frequency of use to determine whether the specific event that caused the disability was due to use of alcohol, drugs, or other substances, we propose to remove initially proposed paragraph (c)(2)(i), renumber the remaining paragraphs in (c), and remove the reference to addiction from proposed (c)(2)(v).

A commenter asserted that the use of the phrase “isolated and infrequent”, in initially proposed paragraph (c)(2)(i), was contradictory because “isolated” suggests a one-time use and “infrequent” means multiple uses. One commenter recommended that there be a regulatory requirement that addiction to alcohol, drugs, or other substances, or other use disorders, be determined by a psychiatrist on a medical basis. Because we are removing paragraph (c)(2)(i) and the reference to addiction in proposed paragraph (c)(2)(v) (now (c)(2)(iv)), these comments are moot and we propose to make no changes based upon them.

One commenter felt the regulation should be revised conceptually, and modernized to preclude a finding of “willful misconduct” on the basis of a claimant's medically documented drug addiction or drug abuse. The commenter noted that the influence of drug addiction or abuse affects a veteran's ability to formulate sufficient intent and to appreciate the consequences of his or her actions. Another commenter expressed the opinion that the determination of proximate cause should be separated in the regulatory scheme from willful misconduct and that the determination should focus on the act causing the disability. We are prohibited from amending the regulations to comply with these comments. The prohibition against granting service connection for willful misconduct and the prohibition against granting service connection for disability caused by alcohol or drug abuse is contained in 38 U.S.C. 105(a), which reads, “An injury or disease incurred during active military . . . service will be deemed to have been incurred in line of duty . . . unless such injury or disease was a result of the person's own willful misconduct or abuse of alcohol or drugs.” Thus, we cannot make any changes based on these comments because the suggested changes are beyond our statutory authority.

One commenter discussed § 5.661(c), stating that after VA determines that a person was intoxicated at the time of committing a particular act, the next step should be a determination of whether the person was mentally capable of committing the act in a deliberate or intentional manner with knowledge of, or wanton and reckless disregard of, its probable consequences. The commenter speculated that an intoxicated person may not be capable of forming the intent. While intent is an element in willful misconduct determinations, intent is not an element in determining whether alcohol or drug abuse was the proximate cause of the disability. In 38 U.S.C. 105, Congress made a distinction between willful misconduct, an act with an intent element, and abuse of alcohol or drugs, an act without an intent element. Since abuse of alcohol or drugs has no intent element, we propose to make no changes based on this comment.

One commenter stated that initially proposed “[§ ] 5.661(c) provides that ‘intoxication' can be considered ‘willful misconduct' if it is the ‘proximate cause' of the claimed disability or death.” The commenter then opined that under the Start Printed Page 71141proposed regulation VA would use an indirect finding of intoxication in order to find willful misconduct, instead of basing that finding on the act causing the disability or death. This is not correct. In § 5.661(c)(1)(i), we stated, “If a person consumes alcoholic beverages to the point of intoxication and that intoxication proximately causes injury, disease, or death, VA will consider the injury, disease, or death to have been proximately caused by willful misconduct.” Alcohol or drug abuse that does not cause a disability or death is not willful misconduct. Alcohol or drug abuse that causes disability or death, whether because of impaired physical capability or judgment, or both, is willful misconduct. We therefore propose to make no changes based on this comment.

One commenter expressed the opinion that the provisions of § 5.661(a) and (b) that prohibit granting service connection, and because of that prohibition dependency and indemnity compensation, as a result of a veteran's misconduct, were an expansion of the current prohibition and unfair to innocent survivors. This commenter noted that this issue was being litigated, at the time of the preparation of the commenter's comment. However, after the commenter submitted the comment, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) decided Myore v. Nicholson, 489 F.3d 1207 (Fed. Cir. 2007). In Myore, the Federal Circuit held that “38 U.S.C. 1310 authorizes DIC for the survivors of a servicemember who dies while on active duty if the death is not the result of the servicemember's own willful misconduct.” Id. at 1212. The Federal Circuit agreed with VA's long-standing interpretation of the statutes that willful misconduct, for purposes of death benefits and as the cause of death, prohibits the servicemember's survivors from being granted benefits. Because the part 5 rule is consistent with Myore, we propose to make no changes based on this comment.

Initially proposed § 5.661(d)(2)(iii) read, “A reasonable, adequate motive for suicide may be established by affirmative evidence showing circumstances which could lead a rational person to self-destruction.” In § 5.3(e), we propose to state that “VA may consider the weight of an absence of evidence in support of, or against, a particular fact or issue.” Although we are not aware of any particular cases in which VA reversed a service department finding of mental unsoundness based on the absence of any evidence of record corroborating such finding of mental unsoundness, our regulation should not foreclose the possibility. We therefore propose to remove the word “affirmative” from § 5.661(d)(2)(iii) and insert the word “competent” in its place. We note as well that although this may be viewed as a restrictive change, in fact and practice, VA never intended a result other than that which is compelled by the revision.

The same commenter opined that the requirement in § 5.661(d)(2)(iii) that suicide not be considered an act of mental unsoundness if the evidence shows that the deceased had a “reasonable, adequate motive for suicide” is a “heretofore unknown[ ] standard of evidence” that requires VA to make “grim, heartless, and at their center, irrational decisions.” First, the requirement of a showing of a “reasonable, adequate motive” is not “heretofore unknown”. Section 5.661(d)(2)(iii) restates current § 3.302(b)(2), which also uses the phrase “reasonable adequate motive”. Second, this evidentiary rule has not led VA to make irrational decisions in determinations concerning suicide, and most cases involving suicide are, quite understandably, “grim”. We see no reason to change VA policy based on this comment. However, we propose to add a comma after the second word of the paragraph, changing the wording from “A reasonable adequate motive” to “A reasonable, adequate motive”. We propose this change in order to clarify that the word, “reasonable” modifies “motive” and not “adequate.”

The same commenter argued against the use of the “affirmative evidence” standard in § 5.661(d)(2)(iii) because the commenter believed that “affirmative evidence” was a quantitative level of proof that is less than a preponderance. The commenter opined that the standard of proof was too low to determine whether suicide was due to willful misconduct, and urged VA to adopt a “clear and convincing evidence” standard. We propose to make no changes based on this comment for several reasons. First, as explained above, we are eliminating the reference to “affirmative evidence”. Second, that standard is a qualitative one—it describes the nature of the evidence—and not a quantitative one. Thus, it has no effect on the burden of proof and could not be read to permit VA to find that suicide was not evidence of mental unsoundness based on less than a preponderance of the evidence. To the extent that the commenter believes that such a finding ought to be based on more than a preponderance of the evidence, we note, as discussed in the preamble to § 5.3, that the statutory default standard for rebutting findings favorable to a claimant is the preponderance standard. The application of a higher standard is appropriate only when a law mandates that higher standard.

In initially proposed § 5.661(e) we repeated current § 3.301(c)(1) which states, “[W]hether the veteran complied with service regulations and directives for reporting the disease and undergoing treatment is immaterial after November 14, 1972, and the service department characterization of acquisition of the disease as willful misconduct or as not in the line of duty will not govern.” We have determined that this provision is unnecessary because it potentially conflicts with the first sentence of § 5.661(e) (based on the first sentence of § 3.301(c)(1)), which simply states, “VA will not consider the residuals of venereal disease to be the result of willful misconduct.” Moreover, it has been decades since the military services penalized servicemembers for failing to promptly report venereal disease (see 37 FR 20336 (Sep. 29, 1972)), so the sentence is outdated. We therefore propose not to include it in § 5.661(e).

Finally, regarding § 5.661(f), we address the proposal to replace the “patently (clearly) inconsistent” standard to rebut a service-department finding that a particular injury, disease, or death was not due to willful misconduct. As to the line-of-duty presumption in § 5.660(d), discussed above, we removed the word “(clearly)” because it gave the wrong impression that that rule established an evidentiary presumption. But unlike §§ 5.660(d) and current 3.1(m), §§ 5.661(f) and current 3.1(n) do in fact establish an evidentiary presumption. The current rule reads: “A service department finding that injury, disease or death was not due to misconduct will be binding on [VA] unless it is patently inconsistent with the facts and the requirements of laws administered by [VA].” Because the presumption must be consistent with both fact and law, determining whether it has been rebutted requires factual determinations, weighing evidence, and applying the law to those factual determinations. Indeed, the mere process of determining a cause of an injury is quite different from the question presented in a line-of-duty determination, as to which the only relevant inquiry is whether there is a legal bar to VA's adoption of the service department's finding. Here, then, it does make sense for VA to adopt an evidentiary standard.

We note that §§ 3.1(n) and 5.661(f) apply only where there has been a service department finding that would tend to be favorable to a claimant, that Start Printed Page 71142is, that a particular injury, disease, or death was not due to willful misconduct. In cases where there has been no such finding, or where the service department found that an injury, disease, or death was due to willful misconduct, VA must review the evidence as it does any other factual issue, and determine whether the preponderance of the evidence shows that the veteran's claimed condition is service connected, with misconduct being one relevant factual question. Cf. Thomas v. Nicholson, 423 F.3d 1279, 1280 (Fed. Cir. 2005) (“concluding that a `preponderance of evidence' establishing willful misconduct is sufficient to rebut a presumption of service-connection for peacetime disabilities under § 105(a)”). Additionally, this pro-claimant presumption is not created by statute, and we are free to establish by regulation an appropriate standard of proof.

In this case, we mean to adopt the elevated “clearly and unmistakably” standard suggested by the commenter. Although the general standard for rebutting a presumption is the preponderance standard (see § 5.3, “Standards of Proof”), in this case, VA is rebutting a finding made by another agency based on that agency's specific review of the veteran's circumstances. Thus, unlike, for example, a presumption that a veteran who served in Vietnam was exposed to herbicides, which applies to all veterans, the service department's willful misconduct finding is particular to one veteran, and is based on the facts of that veteran's case. Therefore, it is appropriate here to raise the evidentiary threshold to rebut that finding.

§ 5.662 Alcohol and Drug Abuse

We propose to delete from the definition of alcohol abuse in § 5.662(a)(1), the requirement that the abuse be “sufficient to proximately cause injury, disease, or death to the person consuming such beverages.” The proximate cause requirement is addressed in paragraph (b), and it was redundant to include it in the definition. This makes the definition consistent with the definition of “drug abuse” in paragraph (a)(2), and with the use of the term “abuse of alcohol” throughout the regulation.

§ 5.663 Homicide as a Bar to VA Benefits

One commenter wanted VA to consider mercy killings of terminally ill veterans as a justifiable homicide. This commenter equated a mercy killing with a veteran's suicide. We propose to make no changes based on this comment. Federal law prohibits mercy killings. See 18 U.S.C. Chapter 51, Homicide. As a matter of policy, VA will not make regulations which would encourage anyone to violate Federal law.

One commenter objected to § 5.663(d), noting that many states permit a finding of guilty of homicide where the killing happened during the commission of another crime (the felony murder rule), or where an intoxicated person causes an automobile accident that kills someone else. The commenter suggested that we amend § 5.663(d) to accept only a court of law conviction of intentional homicide as binding on VA.

We agree that such a change would be consistent with § 5.663(a), where we define homicide as “intentionally causing the death of a person without excuse or justification.” We therefore propose to insert the phrase, “Subject to the requirement of intent in paragraph (a),” before the phrase, “VA will accept a court of law conviction of homicide as binding” in paragraph (d)(1).

A commenter noted that while we allow insanity as a defense to homicide, we did not define insanity. The commenter urged VA to revise the regulatory language to include all legally permissible excuses for homicide culpability, such as from intoxication, mental immaturity, low intelligence, and other factors. We agree that a regulatory definition of insanity is needed, but we have already provided one elsewhere in proposed Part 5. In § 5.1, RIN 2900-AL87, General Provisions, 71 FR 16461, Mar. 31, 2006, now proposed § 5.1, we proposed to define “insanity,” as a defense to commission of an act, as meaning a person was laboring under such a defect of reason resulting from injury, disease, or mental deficiency as not to know or understand the nature or consequence of the act, or that what he or she was doing was wrong. Behavior that is attributable to a personality disorder does not satisfy the definition of insanity. This definition excuses mental immaturity and low intelligence, as urged by the commenter, to the extent that these qualities prevent the affected person from knowing or understanding the nature or consequences of their act or that what he or she was doing was wrong.

We propose to decline to include intoxication as a legally permissible excuse for homicide in the definition of insanity. Congress, in 38 U.S.C. 105 and 1110, specifically prohibited VA from paying compensation for disabilities due to abuse of alcohol or drugs. It would be inconsistent with Congress' intent if we were to prohibit granting service connection to a veteran because of a disability proximately due to the abuse of alcohol or drugs, but to allow the abuse of alcohol or drugs to be an excuse for homicide or to be included in the definition of insanity for any purpose. While Congress has not prohibited VA from including abuse of alcohol or drugs in our definition of insanity, allowing the abuse of alcohol or drugs to be used as an excuse in those determinations requiring the formation of an intent to do an act would be inconsistent with Congressional intent and VA policy. This is a reasonable gap-filling decision within the Secretary's power under 38 U.S.C. 501(a) to promulgate regulations to carry out the laws administered by the Department. We therefore propose to make no changes based on this comment.

One commenter asked that VA consider including regulatory language to allow all legally permissible excuses for homicide culpability, reasoning that if intent is required to bar benefits for homicide, a lack of intent for any reason should excuse the homicide and allow eligibility for benefits. As we stated in the proposed regulation, “homicide means intentionally causing death”. This language requires that the person who caused the death have the intent to do so, and therefore we propose not to make any changes based on this comment.

One commenter suggested that we accept as binding all court decisions, civil as well as criminal, in § 5.663(d)(1). As explained in the NPRM, we chose to accept as binding a conviction in a criminal judicial proceeding because of the higher standard of proof required for a criminal conviction, which is guilt beyond a reasonable doubt. We noted in the NPRM that this is a higher standard than is applicable in civil matters. As stated in the NPRM, we chose not to use a finding of liability in a civil court proceeding because of the lower standard used in those proceedings. We therefore propose to make no changes based on this comment.

This commenter noted that, in § 5.663(e), concerning the effect of a court of law proceeding on VA findings of insanity at the time of the killing, we did not specify what type of finding must be made. The commenter noted that the finding of insanity could be expressed as a verdict, for example, not guilty by reason of insanity, or be a finding of fact within the court's decision. In § 5.663(e), we stated, “VA will accept as binding a court's determination that a person was insane at the time of the killing.” It is immaterial whether the determination is Start Printed Page 71143announced in the verdict or in the body of the written decision. If a court determines the person was insane at the time of the killing, VA will accept that determination in whatever form the court chooses to issue the determination. We propose to make no changes based on this comment.

This commenter then stated that if a court does not make the determination, then VA will need to make the determination. The commenter opined that, that determination should be based on a psychiatrist's objective review and an independent medical opinion, not solely on VA's consultation with a psychiatrist or an opinion from a psychiatrist employed by the VA. While an independent medical opinion is an option we may use when needed, one is not required in all cases. In § 5.92, we explained the situations in which VA will request an independent medical opinion. Absent a medical problem of such obscurity or complexity, or one that has generated such controversy in the medical community at large, we need not solicit an independent medical opinion. VA will determine on a case-by-case basis whether an independent medical opinion is needed for us to decide whether the veteran's actions constituted willful misconduct. As to the requirement of a non-VA psychiatric opinion, VA's psychiatrists and psychologists are experts, and we have no reason to believe that their opinions are biased against providing benefits to veterans. We propose to make no changes based on this comment because VA has an adequate system for obtaining medical opinions from VA psychiatrists or psychologists as needed, or obtaining an independent medical opinion when one is needed.

One commenter opposed the § 5.663(c)(2) requirement that the person have “no way to escape or retreat in order to” justify a finding that a killing was in self-defense. The commenter felt that this may create an unjust hardship on claimants and may deprive some claimants of benefits, even though they did not violate their state's laws or any federal criminal statute. The commenter noted that some states do not require a threatened person to flee and have “stand your ground” laws that allow a person to defend himself or herself without requiring the person to attempt to escape or retreat from the situation.

While some states have enacted “stand your ground” laws, many others have not. We note that, according to Corpus Juris Secundum, “generally, one who seeks to excuse a homicide on the ground of self-defense must show that he did all he reasonably could to avoid the killing; before resorting to the use of deadly force the person attacked must retreat if he or she is consciously aware of an open, safe, and available avenue of escape.” 40 C.J.S. 133 (2008). VA has applied the duty-to-retreat requirement for many years and has not found that it produces unjust results. Moreover, it is appropriate for VA to continue to apply this duty because it is still followed in most jurisdictions.

One commenter was concerned that this regulation does not establish procedures or standards for adjudicating whether the homicide was intentional. This issue would not be adjudicated any differently than any other factual issue presented in a particular case. There are no special procedures applicable to a finding of intentional homicide, and we propose not to adopt any based on this comment.

However, we do propose to make certain revisions based on this comment and our review of this regulation. We have determined that an elevated standard of proof should apply to determinations of intentional homicide because the generally applicable “preponderance of the evidence” standard does not afford the claimant sufficient protection. As noted in the NPRM for this regulation, we accept a criminal conviction as proof that the person convicted did the killing because of the high standard of proof (“beyond a reasonable doubt”) used in criminal prosecutions. It is inconsistent with this high standard of proof to require only a preponderance of the evidence to support a finding that a claimant intentionally committed homicide in cases where the claimant was not convicted of such a crime. Thus, we propose to adopt the “clearly and unmistakably” standard of proof in the revised regulation.

Additionally, in initially proposed § 5.663(d)(2), we stated that we will “determine whether the person was guilty” of homicide. But this is not correct. VA does not make determinations of guilt or innocence; VA makes administrative determinations concerning benefit entitlement. Hence, we propose to remove this statement from the regulation.

Additionally, § 5.663(e) stated that “VA will develop the necessary evidence” to determine whether a person is guilty. This instruction was redundant because there are other provisions of part 5 that adequately address the development of claims. We therefore propose to remove the phrase, “will develop the necessary evidence and” from the sentence.

One commenter felt that VA adjudicators were not trained and experienced enough in criminal or tort law to properly adjudicate claims involving homicide. This commenter felt that the regulation was vague and implied that this vagueness violated the due process rights of claimants. The commenter was also concerned that this regulation did not specifically provide for development of evidence except for that relied on in a court hearing. The commenter felt that documentary evidence is inherently hearsay evidence (citing the Federal Rules of Evidence, sec. 801(c)) and was not a proper basis for making a determination of this complexity and gravity, and that VA intended to make a decision based only on a paper or record review. The commenter also noted that the claimant in such a situation lacks the ability to confront an adverse witness under oath. The commenter expressed the opinion that this type of claim may only properly be determined in an adversarial proceeding with formal rules of evidence. For the following reasons, we propose to make no changes based on these comments.

This regulation is an expansion of 38 CFR 3.11, “Homicide”, and incorporates the provisions of 38 CFR 3.11 and long-standing VA procedures for determining entitlement to benefits when a killing is involved. While it does not include specific provisions for the procedures to be followed in making the determination of whether the claimant intentionally killed another without excuse or justification, the procedures in § 5.90 for developing and adjudicating a claim will be followed. There is no reason to include the procedures in this regulation when they are included elsewhere. Proposed § 5.663 is not intended to be a replacement for any criminal or civil legal proceeding concerning the death of a veteran or other beneficiary and we decline to adopt the standards applicable to a criminal or civil court proceeding. This regulation is not intended to function as a stand-alone regulation but is to be read in conjunction with the other applicable regulations concerning the provision of VA benefits. We propose not to create special provisions for procedures for this type of claim since no special procedures are needed.

We disagree that this regulation is vague. It is very specific concerning what constitutes a homicide, what is an excuse or justification for a homicide, and what impact a homicide has on claimants. The regulation provides specific notice to claimants that a killing that would otherwise provide or increase the killer's benefits, unless excused or with justification, will result Start Printed Page 71144in a denial of benefits. This regulation, when applied in concert with the other applicable VA regulations governing provision of benefits, provides full due process rights to the claimant.

We disagree that we will make decisions based only on paper evidence. While documentary evidence is normally what VA uses in adjudicating a claim, every claimant has a right to a hearing and to present evidence at that hearing. Determinations concerning homicide are not excluded from the right to a hearing and to present testimony and evidence at the hearing. We also disagree that documentary evidence is inherently hearsay evidence and therefore not appropriate for deciding a matter of this complexity and gravity. The Federal Rules of Evidence, in addition to the definition of hearsay cited by the commenter, also provide in sections 803, 804, and 807 exceptions to the hearsay rule. Fed. R. Evid. 803, 804, and 807. Most evidence considered by VA in adjudicating claims falls within one of these exceptions. However, even if the evidence does not fall within one of these exceptions, VA is still required to “consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.” 38 U.S.C. 5107(b).

We also disagree that VA adjudicators are not trained and experienced enough to properly adjudicate claims involving homicide. First, VA adjudicators do not adjudicate claims under criminal or tort laws, so it is irrelevant whether they are trained to adjudicate such matters. VA adjudicators make administrative decisions based on the laws and regulations providing for benefits. Second, VA has an extensive training program for VA adjudicators, which includes training in determining if a killing was a homicide. Additionally, every agency of original jurisdiction has an Office of Regional Counsel available to advise the adjudicators. If criminal or tort law is involved, VA adjudicators may contact the Regional Counsel, or the Office of General Counsel, Office of the Inspector General, or other offices as appropriate, for advice and guidance. We propose to make no changes based on this comment.

In addition to the changes to § 5.663 discussed above, we propose to alphabetically reorder the definitions in paragraph (a) to make them easier to find and to be consistent with similar lists within part 5. Finally, we propose to remove the references to “benefits awarded, but unpaid at death” from § 5.663(f)(6). For the reasons stated in the preamble to § 5.550, and those that follow, we propose not to include that term in part 5.

§ 5.676 Forfeiture for Fraud

Initially proposed § 5.676(b)(5) authorized the suspension of benefits when a case is recommended for forfeiture for fraud, but it did not clearly state the date that the suspension would begin. We propose to revise the rule by adding an effective date that is consistent with current part 3 and the manual provisions in the Manual M21-1MR. We made a similar provision in § 5.677(b)(5), concerning forfeiture for treasonable acts.

§ 5.678 Forfeiture for Subversive Activity

In proposed § 5.678(b)(2)(ii), we propose to change “first day of the month that follows the month for which VA last paid benefits” to “day benefits were suspended”, to improve readability.

§ 5.679 Forfeiture Decision Procedures

One commenter noted a typographic error in § 5.679(b)(6). We propose to correct that error by replacing “Information about that fees” with “Information that fees”.

One commenter objected to the term “recommendation for forfeiture” used in both §§ 5.676 and 5.679, observing that the term is not defined. This commenter felt the term, without a definition, is overly broad. We propose to make no changes based on this comment. While the commenter is correct that we do not define the term “recommendation for forfeiture,” the term's use in relationship to VA benefits is explained in § 5.679. In this regulation, we explain who may file a recommendation for forfeiture, what the procedures for preparing a recommendation for forfeiture are, and who the official is that will make a decision on the recommendation for forfeiture. This procedure is largely unchanged from the previous regulations and is long-standing VA policy.

The phrase is self-explanatory. Both “forfeiture” and “recommendation” have the meanings commonly assigned them by dictionaries of the English language. We do not propose to define the phrase since there is no need to define the phrase as it is not overly broad or subject to multiple interpretations. We therefore propose to make no changes based on this comment.

One commenter was concerned that § 5.679 would deny the claimant due process of law by suspending payments of any benefits before a final decision has been made on whether to invoke forfeiture. For the following reasons, we propose to make no changes based on this comment.

The forfeiture sections of the new Part 5 regulations, §§ 5.676 and 5.679, do not change VA's procedures for determining forfeiture or for suspending payments for forfeiture. Section 5.676(b)(5) provides that benefits will be suspended if forfeiture for fraud is recommended in accordance with § 5.679. Proposed § 5.679 provides that before a recommendation for forfeiture is made, the recommending Regional Counsel, or in the Philippines, the Veterans Service Center Manager (VSCM), must provide written notice to the beneficiary or claimant of the specific charges against the person, a detailed statement of the evidence supporting the charges, a citation and discussion of the applicable statute, the right to file a statement or evidence within 60 days of the notice, the right to a hearing within 60 days after the notice with representation of the person's choosing, the limitations on fees any representative may charge the beneficiary or claimant, and information that fees for representation are limited and that VA will not pay expenses incurred by a claimant, his or her counsel, or witnesses. Only after all of these procedures are followed will a Regional Counsel, or in the Philippines, the VSCM, make a recommendation for forfeiture. These procedures provide the person subject to the forfeiture with full due process rights.

The commenter also felt that it would be impossible to determine when the suspension of benefit payments would take place since there is no definition of “recommendation for forfeiture”. The commenter also asserted that under the proposed rules, it is unclear whether a recommendation for forfeiture is different from a final decision on forfeiture. We propose to make no changes based on these comments.

The date of suspension of benefit payments based on a recommendation for forfeiture is clearly stated in § 5.676(b)(5) (regarding suspension for fraud). Benefit payments will be suspended when the recommendation for forfeiture is filed with the Director of the Compensation Service or personnel of that service designated by the Director to determine whether a claimant or payee has forfeited the right to all VA benefits except insurance payments. The regulation is clear in explaining that the suspension occurs when the recommendation for forfeiture is filed with the appropriate official by Regional Counsel or the Manila VSCM.

Likewise, the regulations are clear in explaining that a recommendation for forfeiture is different from a final Start Printed Page 71145decision on forfeiture. Under § 5.679, a recommendation for forfeiture is made by a VA official described in paragraph (a)(2) and the final decision is made by a VA official described in paragraph (a)(1). Nevertheless, to avoid the possibility of confusion on this point, we propose to revise paragraph (a)(2) of § 5.679 by changing the phrase “such official” to “an official described in paragraph (a)(1) of this section”.

§ 5.680 Revocation of Forfeiture

In § 5.680 (b)(1), we propose to change the sentence, “VA will remit a forfeiture upon a showing that the forfeiture decision involved clear and unmistakable error”, to replace the word “involved” with “was the product of”, to clearly show the role that the error must have played in leading to the forfeiture decision. This is merely a clarification. We also propose to reorganize the contents of paragraph (b) for clarity.

The term “remission” (the term used in 38 U.S.C. 6103(d)(2) and current VA regulations in part 3) may not be commonly understood by the public and we therefore propose to replace it with “revocation”. We propose to make conforming changes of “remit” to “revoke”.

§ 5.681 Effective Dates: Forfeiture

In paragraphs (b)(1) and (3), we propose to change “starting date” to “effective date”. We do not use the term “starting date” in part 5.

§ 5.683 Renouncement of Benefits

One commenter recommended removing this section because in a situation where the person renouncing the benefit is not the guardian or custodian of the veteran's child, an unjust result may occur and the child may lose benefits.

If a surviving spouse of a veteran is receiving DIC and is not the guardian or custodian of the veteran's child, then the veteran's child's portion of the DIC would have been or would be apportioned to the veteran's child (and paid to the custodian or guardian of the child). The surviving spouse's renouncement of benefits would not affect the amount paid based on the existence of a child. The commenter was incorrect in implying that the renouncement would affect the amount paid based on the existence of a child. We therefore propose to make no changes based on this comment.

As initially proposed, § 5.683(b) stated that a fiduciary may not renounce benefits on behalf of a beneficiary. The main duties of a fiduciary are to preserve and disburse funds that the beneficiary is entitled to receive. However, if a fiduciary is court appointed or a guardian of a minor child, this person may have the authority to act in the stead of the beneficiary and renounce benefits on behalf of the beneficiary, if it is to the beneficiary's advantage. In order to avoid any confusion as to what type of fiduciary is able to renounce benefits on behalf of the beneficiary, we propose to remove the phrase “by a fiduciary” from initially proposed § 5.683(b).

In reviewing initially proposed § 5.683, we noted that it did not address renouncement by a person who VA has determined is entitled, but who is not yet receiving benefits. VA has always permitted such persons to renounce benefits, so we propose to change “beneficiary” to “a person entitled to that benefit” in (b) and (d)(1) to clarify that point.

XVII. Subpart L: Payments and Adjustments to Payments

A. Payments and Adjustments to Payments AM06

In a document published in the Federal Register on October 31, 2008, we proposed to rewrite VA regulations governing payments and adjustments to payments, to be published in new 38 CFR part 5. 73 FR 65212. We provided a 60-day comment period that ended on December 30, 2008. We received a submission from one commenter, National Organization of Veterans' Advocates, Inc.

§ 5.690 Where to Find Benefit Rates and Income Limits

Initially proposed § 5.690 listed benefit programs as a continuous series. To aid readability, we have revised this series to read as two enumerated lists. Paragraph (a) would list the benefits for which VA publishes rates. Paragraph (b) would list the benefits for which VA publishes income limitations.

Although 38 CFR 3.21, from which § 5.690 derives, does not include death compensation in its list of benefits for which VA publishes rates, it has always been VA's practice to publish death compensation rates. We therefore propose to add the term “death compensation” to proposed § 5.690.

§ 5.691 Adjustments for Fractions of Dollars

The commenter stated, “For consistency with section 5.691(b), section 5.691(c) should also require rounding up, rather than down, to the nearest dollar, the amount of Improved Pension or Section 306 Pension payable.” Section 5312(c)(2) of title 38 U.S.C., which governs the rounding of the rates and income limitations for the benefits listed in proposed § 5.691(b). It gives the Secretary discretion to round such rates and income limitations in a manner that he or she “considers equitable and appropriate for ease of administration.” Another statute, 38 U.S.C. 5123 of title 38 U.S.C. governs rounding of payments of the pension benefits to which proposed § 5.691(c) applies. It prescribes rounding payments down to the nearest dollar. In contrast to section 5312(c)(2), section 5123 does not authorize the Secretary to vary from that practice according to his or her discretion. Because a statute requires that the pension rates covered in § 5.691(c) be rounded down, we propose to make no change based on the commenter's suggestion.

§ 5.693 Beginning Date for Certain VA Benefit Payments

The commenter indicated that this section “should provide for payments beginning as of the effective date, rather than as of the first day of the month after the month in which the payment becomes effective.” The commenter urged VA to make this change in order to “be consistent with section 5.705 which institutes a reduction or suspension as of the effective date.” Pursuant to 38 U.S.C. 5111(a), payment of a VA benefit “may not be made to an individual for any period before the first day of the calendar month following the month in which the award or increased award became effective.” Thus, we lack the authority to make the change suggested.

We propose to revise initially proposed § 5.693(b). We propose to replace a reference to “payment” with “award or increased award” and add “or increased award” to a reference to “award”. We made the former change to correct an error and the latter change to clarify the provision. Further, as initially proposed, the title purported to state the beginning date of certain benefits, but the regulation text actually required the reader to infer the beginning date of payments from the negative statement, “[B]enefits . . . will not be paid for any period before the first day of the month after the month in which the award or increased award becomes effective.” This preclusion against paying before a certain time does not inform the reader, or instruct VA, when payments will begin. We propose to state the rule affirmatively: “VA will pay benefits identified in this paragraph beginning the first day of the month after the month in which the award or increased award becomes effective, Start Printed Page 71146except as provided in paragraph (c) of this section.”

We propose to revise initially proposed paragraph (c) by restating it in the active voice. We also propose to delete the statement that paragraph (b) does not apply to the benefits listed in paragraph (c). It is unnecessary, because paragraph (b) would already state that it applies, “except” to paragraph (c).

We propose to revise § 5.693(c)(4)(iii) to reflect the terminology used in VA's regulations regarding the reduction of compensation and pension based on the receipt of hospital, domiciliary, or nursing home care. See §§ 5.720 to 5.730. Initially proposed § 5.693(c)(4)(iii) referred to “hospitalization” and “institutionalization”. With respect to specific types of VA care or VA facilities, the terms “institution”, “institutional”, and “institutionalization” are obsolete. Further, reductions based on the receipt of domiciliary care or nursing home care are similar to, and in some instances the same as, reductions based on the receipt of hospital care.

Section 605 of Public Law 111-275, 124 Stat. 2864, 2885-86 (2010), amended 38 U.S.C. 5111 to create a new exception to the general rule on the beginning date for VA benefit payments for veterans who were retired or separated from the active military service for a catastrophic disability. We propose to incorporate this exception into § 5.693 by adding new paragraphs (c)(10) and (e).

§ 5.694 Deceased Beneficiary

In the NPRM AM06, VA inadvertently omitted the provision in current 38 CFR 3.500(g)(1). To correct this, we propose to add this provision as § 5.694. We have renumbered initially proposed § 5.694 as § 5.695, and initially proposed § 5.695 as § 5.696. We also omitted from the initial NPRMs an equivalent to 38 CFR 3.500(g)(3) without an explanation for its exclusion. Section 3.500(g)(3) provides an effective date for discontinuance of an award of “retirement pay” administered by VA upon the death of a veteran. VA no longer administers any veteran's benefit titled “retirement pay.” VA previously paid emergency officers' retirement pay and retirement pay under Public Law 77-262, which are no longer active benefits. Although military retirement pay may also be discontinued upon the death of a veteran, VA does not administer that benefit. Therefore, we propose to not include an equivalent to § 3.500(g)(3) in part 5.

§ 5.695 Surviving Spouse's Benefit for the Month of the Veteran's Death

The commenter stated:

We believe that this section should provide that payments to the surviving spouse will be for the month of death and for the month immediately following the veteran's death. This would provide a more equitable transition for the surviving spouse and would not result in confusion and inadvertent overpayments where a veteran dies during the last days of the month and the notification of the veteran's death does not reach the VA or is not processed until the weeks following death. Eliminating the cost to the VA of attempting to recoup the inadvertent overpayments should cover the costs of the additional month's payments.

The month-of-death benefit is governed by 38 U.S.C. 5111(c) and 5310, and the proposed regulation is consistent with those statutes. Sections 5111 and 5310 do not authorize VA to pay a benefit for both the month of death and the next month unless VA awards the surviving spouse a death benefit for the month in which the veteran died and the amount of that benefit is less than or equal to the amount of compensation or pension the veteran would have been entitled to for the month of death but for his or her death. Barring this situation, there is no statutory authority for issuing payment for the month of the veteran's death and the month immediately following the veteran's death. We propose to make no change based on the commenter's suggestion.

In initially proposed § 5.694 (b)(2), we used the phrase, “then the surviving spouse is entitled to death pension or DIC for the month of the veteran's death”. It is more precise to say, “then VA will pay the surviving spouse death pension or DIC for the month of the veteran's death”.

In § 5.695(c), initially proposed as § 5.694(c), we propose to add language to provide that the veteran must have been receiving disability compensation or pension at the time of death for the surviving spouse to be entitled to the month-of-death benefit. Both the authorizing statute, 38 U.S.C. 5310(b)(1), and the current part 3 equivalent, § 3.20(c)(1), require the veteran to have been in receipt of disability compensation or pension at the time of death. Similar language was incorrectly omitted from the initially proposed rule. In § 5.695(c), we also propose to clarify that a provision that was inadvertently omitted from the initially proposed rule (§ 5310(b)) does not authorize a month-of-death benefit for the surviving spouse of a veteran who died on December 31, 1996. In the initially proposed rule, we addressed the deaths of veterans occurring before and after that date but not on that date.

We propose to revise initially proposed § 5.694(d), now § 5.695(d) to clarify that the payment made to a deceased veteran for the month in which the veteran died is a payment of compensation or pension, not “the month-of-death benefit”. We propose to make this change because the “month-of-death benefit”, defined in § 5.695(a), is “a payment to a deceased veteran's surviving spouse”, not a payment to a veteran.

Subsequent to the publication of proposed § 5.695, section 507 of Public Law 112-154 (2012) amended 38 U.S.C. 5310 by making surviving spouses whose spouse died on or after August 6, 2012, entitled to a benefit for the month of a veteran's death if, at the time of the veteran's death: (1) the veteran was receiving disability compensation or Improved Pension, or (2) the veteran is determined to have been entitled to receive such compensation or pension for such month. The amendment also states that if a claim for such benefits was pending on the date of a veteran's death and the pending claim is subsequently granted, any additional benefits for that month would be paid as accrued VA benefits.

§ 5.696 Payments to or for a Child Pursuing a Course of Instruction at an Approved Educational Institution

We have renumbered initially proposed § 5.695 as § 5.696. Initially proposed paragraph (a) defined “approved educational institution”. Because that term is already defined in § 5.220(b)(2), we now propose to simply cross reference that definition rather than repeat it in paragraph (a).

We propose to reorganize initially proposed paragraph (b) to enhance clarity and to note the statutory requirement under 38 U.S.C. 1115 that additional disability compensation will only be paid for a qualifying child where the veteran has a service-connected disability rated at least 30 percent disabling.

We propose to reorganize initially proposed paragraph (c), pertaining to payment of dependency and indemnity compensation (DIC) directly to a child, to clarify the relationship between proposed paragraphs (c)(1) and (3). The proposed paragraphs were both derived from current § 3.667(a)(3), which applies to a child pursuing a course of instruction at an approved educational institution upon reaching age 18. Initially proposed paragraph (c)(3) has now been redesignated as § 5.696(c)(1)(i). Initially proposed paragraph (c)(1) has now been Start Printed Page 71147redesignated as § 5.696(c)(1)(ii). The distinction between the two paragraphs is that under paragraph (c)(1)(i), the child was a dependent on a surviving spouse's DIC award immediately before the child's 18th birthday. Under paragraph (c)(1)(ii), he or she was not.

As initially proposed, a reference to an exception for paragraph (f)(2) was placed incorrectly in paragraph (g)(1) instead of in paragraph (g)(2). We propose to correct this in paragraph (g). Further, we propose to revise paragraph (g), which pertains to the discontinuance of benefits to a child pursuing a course of instruction at an approved educational institution, consistent with the part 5 convention for describing how VA implements a reduction or discontinuance of benefits.

We propose to add 38 U.S.C. 3562 as the specific statutory authority for § 5.696(i)(1), which bars the payment of Improved Pension, additional disability compensation, and DIC to or for a child pursuing a course of instruction at an approved educational institution who has elected educational assistance under 38 U.S.C. chapter 35.

§ 5.696 Awards of Dependency and Indemnity Compensation When Not All Dependents Apply

As proposed in the NPRM, § 5.696, “Awards of dependency and indemnity compensation when not all dependents apply”, pertained only to awards of dependency and indemnity compensation. Therefore, we now propose to renumber it as § 5.525 in subpart G of this part under the undesignated center heading “Dependency and Indemnity Compensation—Eligibility and Payment Rules for Surviving Spouses and Children”.

§ 5.697 Exchange Rates for Income Received or Expenses Paid in Foreign Currencies

Initially proposed § 5.697(b) and (c) provided the same general rule and exception to the payment of benefits under subpart J of this part and under § 5.551(e). The same general rule and exception also apply to funds paid in accordance with §§ 5.565(b)(4), 5.566(d)(4), and 5.567(a)(4). Therefore, we propose to combine initially proposed § 5.697(b) and (c) into paragraph (b) and expand the applicability of paragraph (b) to include the payment of these other funds. We also propose to make changes to the general rule and the exception, paragraphs (b)(2) and (3) respectively, to improve readability or simplify language.

Also in new § 5.697(b), we propose to clarify language from initially proposed paragraph (c). In initially proposed § 5.697(c), we used the phrase “last illness and/or burial”. Title 38 U.S.C. 5121(a)(6) states, “[A]ccrued benefits may be paid . . . to reimburse the person who bore the expense of last sickness and burial.” VA interprets the word “and” as used in the statute to mean “or”. We do not believe that Congress intended to require that a person have paid expenses of both the last illness and burial to qualify for some reimbursement. For example, if a person expended his or her savings paying for health care bills resulting from the veteran's last illness and therefore could not pay for the burial, it would be unfair not to reimburse him or her for the health care bills. We propose to change the proposed language from “and/or” to simply “or” because this term includes “and”. Furthermore, this change is consistent with current § 3.1000(a)(5), which uses the phrase “last sickness or burial”.

§ 5.705 General Effective Dates for Reduction or Discontinuance of Benefits

The commenter indicated that for “similar reasons as what is now proposed section 5.694 [now proposed 5.695], the effective date for reduction or discontinuation of benefits should be the month following the triggering event for the reduction or discontinuance.” The effective dates for reductions and discontinuances are governed by 38 U.S.C. 5112. Under section 5112, in most circumstances reductions and discontinuances of disability compensation, pension, or dependency and indemnity compensation must be on the last day of the month in which a described event occurs. We note as well that the effect of this rule is that any new benefit that may be paid as a result of the reduction or discontinuance, such as a newly elected but exclusive benefit or a benefit to a survivor or an apportionee, can be paid in the month immediately after the month in which the benefit is reduced or discontinued. Moreover, VA reduces or discontinues benefits only when the beneficiary is no longer entitled by law to receive the benefits. The commenter's suggestion is that we continue to pay such benefits for a full month after we determined that the beneficiary is not entitled to receive them. We have no authority to adopt the commenter's suggestion.

§ 5.707 Deductible Medical Expenses

Section 5.707 describes the medical expenses that VA will deduct for purposes of three of VA's benefit programs that are based on financial need. Paragraph (c) lists six categories of such expenses and then lists subcategories within some of them. Certain expenses may fall within more than one category or subcategory. In order to ensure that VA makes decisions that grant every benefit that the laws supports, we have added to the introductory text of paragraph (c), “If there is more than one way to categorize a medical expense under this paragraph (c), VA will categorize it in the way that is most favorable to the claimant or beneficiary.” See 38 CFR 3.103(a) (“[I]t is the obligation of VA . . . to render a decision which grants every benefit that can be supported in law.”); see also 71 FR 16475, Mar. 31, 2006 (proposed 38 CFR 5.4(b), based on 38 CFR 3.103(a)).

As initially proposed, the text of paragraph (c)(1) listed care typically provided by a licensed health care provider but failed to specify that in order for payments for the care to be deducted as medical expenses under paragraph (c)(1), the care must have been provided by a licensed health care provider. That requirement was intended in the proposed rule, as shown by the heading of paragraph (c)(1), “Care by a licensed health care provider”; nevertheless, we propose to add the requirement to the text of the paragraph for clarity.

In initially proposed § 5.707(c)(4), we specified the mileage rate for deductible medical expenses as 20 cents per mile traveled. Following the publication of the proposed rule, VA raised that mileage rate. VA publishes that mileage rate on VA Form 21-8416, Medical Expense Report, which is updated periodically. In order to ensure that the public has the most current information, we propose to change § 5.707(c)(4) to refer to “the amount stated on VA Form 21-8416, Medical Expense Report” rather than a specific rate. We also inform the reader that this form is available on the VA Web site.

Initially proposed § 5.707(c)(6) began, “The following payments are `medical expenses' that will be deducted from income:”. We determined that this introductory language is redundant because it is already stated in the introductory text of paragraph (c): “The following payments are `medical expenses' that will be deducted from income if they are not reimbursed”. We therefore propose to remove the introductory language from paragraph (c)(6).

We further propose to revise paragraph (c)(6) to more accurately describe current VA practice. In paragraph (c)(6)(ii), regarding payments for an in-home attendant, we propose to Start Printed Page 71148clarify the circumstances under which the attendant must be a licensed health care provider. We also propose to remove the initially proposed language that states that the attendant may be a family member. Although the proposed language was accurate, it was superfluous, and including the language might confuse a reader regarding whether the attendant could be someone from another general class, such as a friend or a neighbor.

In paragraph (c)(6)(iv), regarding payments for custodial care, we propose to delete language providing that payments made strictly for custodial care were not deductible. That language does not accurately describe VA's practice. Payments for custodial care (including room and board) are deductible if the other requirements of the paragraph are met. We also propose to add conditions that clarify the circumstances under which the paragraph permits described payments to be deducted as medical expenses.

In paragraph (c)(6)(v), regarding payments for custodial care in a government institution, we propose to add conditions to clarify the circumstances under which the paragraph permits described payments to be deducted as medical expenses.

In paragraph (c)(6)(vi), regarding payments to an adult day care facility, rest home, group home, or similar facility, we propose to delete initially proposed language stating that if the individual is not in need of regular aid and attendance and is not housebound, VA will deduct all reasonable fees paid to the facility, but only to the extent that they are for medical treatment provided by a licensed health care provider. Such language is unnecessary in paragraph (c)(6)(vi) because payments for medical treatment provided by a licensed health care provider are always deductible under paragraph (c)(1).

We also propose to delete paragraph (c)(6)(vi)(C), which provided that if the adult day care or similar facility was a government facility, paragraph (c)(6)(v) applied. The proposed revisions to paragraph (c)(6) clarify the circumstances under which each of the paragraphs applies in order to be consistent with and accurately describe VA's current practice. More specific direction is unnecessary and could be confusing or inaccurate. As discussed above regarding the introductory text of paragraph (c), to the extent that the categories and subcategories of medical expenses in paragraph (c) may overlap, VA will always categorize a medical expense in the way that is most favorable to the claimant or beneficiary.

We also propose to make a few changes to initially proposed § 5.707 to improve readability or simplify language.

§ 5.708 Eligibility Verification Reports

Initially proposed § 5.708(a) incorrectly referred only to Improved Pension and parents' dependency and indemnity compensation (DIC). We propose to revise § 5.708(a) to clarify that eligibility verification reports (EVRs) pertain to all three VA pension programs—Old-Law Pension, Section 306 Pension, and Improved Pension—as well as parents' DIC.

Initially proposed § 5.708(b)(1) incorrectly indicated that VA may require claimants to complete an EVR annually. Only beneficiaries may be required to file an EVR annually. We have deleted the term “annually” from § 5.708(b)(1).

Initially proposed § 5.708(c) incorrectly implied that certain parents receiving parents' DIC were never required to file an EVR. Paragraph (c) should have made clear that it was an exception to the general requirement that such parents file an EVR annually. Accordingly, we propose to delete initially proposed paragraph (c) and place the material proposed in paragraph (c) in a note to revised paragraph (b)(2)(i) pertaining to the requirement for beneficiaries to file an EVR annually. We have not included in that note the sentence from initially proposed paragraph (c) stating, “However, a parent receiving parents' DIC must notify VA whenever there is a material change in his or her annual income.” That sentence is unnecessary given that similar information is provided in §§ 5.708(b)(2)(ii) and 5.709. In the note to paragraph (b)(2)(i), we propose to add two more groups who are exempted from the annual EVR requirement, beneficiaries of Old-Law Pension and Section 306 Pension and certain beneficiaries of Improved Pension. This change is consistent with current practice and facilitates VA's efficient administration of these programs.

The third sentence of initially proposed paragraph (d), redesignated as paragraph (c), described the action VA takes when expected income is uncertain. The sentence referred to other more specific provisions elsewhere in part 5. In order to avoid confusion about the purpose and meaning of the sentence, as well as its relationship to the first sentence in the paragraph, we propose to delete the sentence and provide instead a clear cross reference to the relevant specific provisions to which the deleted sentence referred. We also propose to clarify the cross reference to § 5.478 to describe more accurately the circumstances under which that provision applies. The initially proposed language described § 3.260(b), upon which § 5.478(a) is based, but it would not accurately describe the content of § 5.478(a).

We propose to clarify § 5.708(e)(2), redesignated from initially proposed paragraph (f)(2). As initially proposed, the paragraph stated that VA would notify a beneficiary that an EVR was incomplete and inform the beneficiary of the information needed to complete the EVR. We have simplified the paragraph. If VA notifies a beneficiary of additional information needed to complete an EVR, it is implicit in that notice that the EVR, as filed, is incomplete.

We propose to clarify initially proposed § 5.708(g)(1)(ii) and redesignate it as initially proposed paragraph (f)(1)(ii). As initially proposed, the rule was limited to instances in which the discontinuance of payments was effective before the date on which benefits were suspended. Such a limitation on the rule is misleading. Whether or not discontinuance of benefits was effective before the date on which benefits were suspended is irrelevant; in either case, the effective date of resumption under this paragraph is the date the benefits were discontinued. This change is consistent with current practice.

Initially proposed § 5.708(h), redesignated as § 5.708(g), stated, “A former beneficiary who owes or owed money to VA because VA discontinued payments for failure to file an EVR within the time limit . . . may submit the EVR at any time”, and further stated, “If, based on information in the EVR, VA decides that the former beneficiary was entitled to benefits for any part of the period of time in which payment had been discontinued for failure to file an EVR, VA will offset the debt for that part of the period.” We have determined that in some instances, a former beneficiary might file a new claim after VA has discontinued his or her benefits. If such a claim were granted, that person would become a current beneficiary. Nevertheless, he or she might still file the previously requested EVR, which could reduce or eliminate the debt. Therefore, in contemplation of that scenario, we propose to add the term “beneficiary” before “former beneficiary” in each sentence where “former beneficiary” was initially proposed.

We also propose to clarify paragraph (g) to state that an EVR may be accepted Start Printed Page 71149for purpose of reducing or eliminating a debt. Finally, to be consistent with the rest of the paragraph, we propose to replace “offset” with “reduce” and “completely offset” with “eliminated”. The new terms more accurately describe the action that VA takes and are easier for the public and VA personnel to understand.

§ 5.710 Adjustments in Benefits Due to Reduction or Discontinuance of a Benefit to Another Payee

Section 5.710 was initially proposed as a plain language rewrite of current § 3.651. For clarity, we propose to revise § 5.710 to describe more specifically the procedures VA uses to adjust awards of benefits that result from the reduction or discontinuance of the same benefit to another payee. Initially proposed § 5.710(b) referred to VA requesting information or evidence but failed to explain when or why VA would make such a request. We propose to revise paragraph (b) to explain that if there is sufficient information and evidence for VA to award or increase the benefit to the payee, then VA will do so. If there is not, then VA will request additional information or evidence. We also clearly state the effective date rules for the various scenarios.

§ 5.711 Payment to Dependents Due to the Disappearance of a Veteran for 90 Days or More

Like current § 3.656(a), initially proposed § 5.711 provided that when a veteran who was receiving or entitled to receive disability compensation, Section 306 Pension, or Improved Pension disappears for 90 days or more, benefits will be paid to the veteran's dependent(s). However, neither the current rule nor the initially proposed rule defines the term “entitled to receive”. The relevant statutory authorities only refer to a veteran who is “receiving compensation” (38 U.S.C. 1158) or “receiving pension” (38 U.S.C. 1507). VA has interpreted such statutory language liberally so that “under certain circumstances” actual physical receipt of the benefit is not required. See VAOPGCPREC 7-91, 56 FR 25156 (June 3, 1991); see also VAOPGCPREC 21-92, 58 FR 12449 (Mar. 4, 1993) (“Certain opinions interpreting the terms `receiving' or `in receipt' of compensation or pension as found in . . . portions of title 38, United States Code . . . have . . . recognized limited exceptions to the literal meaning of the terms.”). Consistent with that interpretation, we propose to add a definition of the term “entitled to receive” in paragraph (a): “For purposes of this section, entitled to receive means that VA has granted a claim for one of the benefits listed in paragraph (a)(1) of this section but has not yet paid the veteran.”

We propose to revise initially proposed paragraphs (b) and (c), which provided similar rules, to refer to the “rate” of payment rather than the “amount” of a payment to be more consistent with terminology actually used by VA personnel. We also propose to revise these paragraphs, so that the rules are phrased similarly. In these paragraphs, we also propose to delete the initially proposed phrases “for benefits under this section” and “for benefits” in reference to a claim for benefits under § 5.711. We had used (or not used) the phrases inconsistently in initially proposed § 5.711. The uses of “claim” to refer to a claim for benefits under § 5.711 are clear in context without the deleted phrases.

We propose to add a note to initially proposed paragraph (b)(1), which states, “Note to paragraph (b)(1): If there is a dependent parent, then the rate for parents' DIC may vary depending on the parent's annual income.” By law, the amount payable for parents' DIC is based on the parent's annual income. This is different from other DIC programs, which are not income-based. We propose to add the note to ensure that readers are aware of this distinction.

In initially proposed § 5.711(b)(1)(ii), we stated, “If VA pays disability compensation pursuant to this paragraph, then it will pay benefits in equal amounts to the dependents.” However, on further review, we note that 38 U.S.C. 1158 does not permit such an equal distribution of benefits. Rather, it states that, payments to each dependent “shall not exceed the [rate of DIC] payable to each if the veteran had died from service-connected disability.” If benefits were distributed equally, it is likely that the rate payable to some dependents would exceed the rate authorized by the statute. Accordingly, we propose to revise § 5.711(b)(1)(ii) to remove the provision regarding “equal amounts”. In its place, we propose to provide that VA will pay benefits to each dependent in the same proportion as if the DIC rate were being paid. Although this revised method is more complex than the method we initially proposed, it is fair to the dependents, and it complies with section 1158 because the rate payable can never exceed the maximum rate authorized by that statute.

We propose to add two paragraphs, (c)(1)(i) and (ii), to initially proposed § 5.711(c) so that it is organized like § 5.711(b). For the same reason we have used a proportional formula for compensation benefits in paragraph (b)(1)(ii), we propose to add paragraph (c)(1)(ii) stating that pension paid under paragraph (c) at the veteran's rate will be paid using the proportional formula. Like 38 U.S.C. 1158 discussed above, 38 U.S.C. 1507 states, “Where a veteran receiving pension . . . disappears, the Secretary may pay the pension otherwise payable to such veteran's spouse and children . . . Payments made to a spouse or child under this section shall not exceed the amount to which each would be entitled if the veteran died of a non-service-connected disability.” The proportional payment method is fair to the dependents, and it complies with section 1507.

Initially proposed § 5.711(d)(1) stated the effective date for the discontinuance of payments to a veteran's dependent(s), as a result of the veteran's whereabouts being known. However, initially proposed paragraph (d)(2) did not provide information about the effective date for the discontinuance of the dependent's benefits if the veteran is presumed dead. We propose to correct this omission by stating that the date of the veteran's death is presumed to be 7 years after the date the veteran was last known to be alive. This is consistent with the provisions of paragraph (b) of § 5.503, “Establishing the date of death”, as well as the statute, 38 U.S.C. 108. We also propose to add a reference to § 5.694, which provides the effective date for the discontinuance of benefits based upon the death of a beneficiary.

§ 5.712 Suspension of VA Benefits Due to the Disappearance of a Payee

In § 5.712(a), we propose to add the effective date for the suspension of benefits. Paragraph (a) would state that upon the disappearance of a payee, benefits will be suspended effective the first day of the month after the month for which VA last paid benefits to the payee. This revision is based on current § 3.500(t).

§ 5.713 Restriction on VA Benefit Payments to an Alien Located in Enemy Territory

Initially proposed § 5.713(a) did not provide an effective date for discontinuance of benefits due to an alien being located in an enemy territory. We propose to correct this omission by adding a sentence stating that “VA will discontinue benefits to an alien located in territory described in this paragraph (a) of this section, effective the first day of the month after the month for which VA last paid benefits.” This statement is consistent with current VA practice, as well as the Start Printed Page 71150statute 38 U.S.C. 5308(a), which requires VA to discontinue benefits “forthwith”.

§ 5.714 Restriction on Delivery of VA Benefit Payments to Payees Located in Countries on Treasury Department List

Initially proposed § 5.714(a)(1) defined “payee” (for purposes of part 5) as a person to whom a VA benefit check is payable. However, § 5.1 defines “payee” as “a person to whom monetary benefits are payable.” We believe that the general definition of “payee” in § 5.1 properly defines “payee” for purposes of § 5.714. Having two different but very similar definitions of “payee” in part 5 might cause confusion, so we propose to remove the definition from § 5.714.

§ 5.715 Claims for Undelivered or Discontinued Benefits

We propose to change “may” in initially proposed § 5.715, referring to claims for undelivered or discontinued benefits, to “must” in paragraph (b)(1) to clarify that filing a claim is necessary for the payment of benefits under § 5.715. In initially proposed § 5.715(b)(1), we had restated the provisions of § 3.653 using “may” because a claim need not be filed by a payee who requests the alternative means of delivery under § 5.714(d). In using “may”, we unintentionally suggested that filing a claim was permissive, not mandatory. We propose to revise § 5.715(b)(1) to clearly state that a claim is necessary unless the exception for alternative means of delivery applies. We also propose to clarify paragraph (b)(1) to specify that, for benefits discontinued under § 5.713, the paragraph applies to both the retroactive restoration of benefits not paid and the prospective resumption of benefits.

In initially proposed § 5.715(b)(2), we stated, “There is no time limit for filing such a claim.” We have determined that it is unnecessary to state this negative proposition and this language might mislead readers into believing that there is an unstated time limit for filing claims under other sections, when in fact there is no such time limit. Accordingly, we propose to delete proposed paragraph (b)(2).

Initially proposed paragraphs (b)(3)(ii) and (iii) respectively stated that amounts that were not delivered under § 5.714 will be released or a discontinued benefit resumed only if “the payee is no longer subject to the restriction in § 5.714(c)” or “the country in which the payee is located is removed from the Treasury Department list”. We have determined that with regard to any payee described in paragraph (b)(3)(iii), paragraph (b)(3)(ii) would have the same effect. Any payee described in paragraph (b)(3)(iii) would by definition no longer be subject to the restriction in § 5.714(c), which only applies if a payee is located in a country on the Treasury Department list. Paragraph (b)(3)(ii) (which we propose to redesignate as (b)(2)(ii)) encompasses other scenarios in addition to the one addressed in initially proposed paragraph (b)(3)(iii). Therefore, we propose to delete initially proposed paragraph (b)(3)(iii) as unnecessary.

§ 5.720 Adjustments to Special Monthly Compensation Based on the Need for Regular Aid and Attendance While a Veteran is Receiving Hospital, Domiciliary, or Nursing Home Care

Our proposal to rewrite the VA regulations governing hospital, domiciliary, and nursing home care reductions and resumptions in new 38 CFR part 5 (proposed §§ 5.720—5.730) was included in a document published in the Federal Register on January 14, 2011, that also proposed to rewrite VA regulations governing apportionments to dependents and payments to fiduciaries and incarcerated beneficiaries. 76 FR 2766. We provided a 60-day comment period that ended on March 15, 2011. We received submissions from four commenters; however, only the submission from the National Organization of Veterans' Advocates, Inc., pertained to the regulations governing hospital, domiciliary, and nursing home care reductions and resumptions.

Concerning initially proposed § 5.720, one commenter stated that the language in current 38 CFR 3.556(f) defining a “regular discharge” as occurring when the veteran has “received maximum hospital benefits” is clearer than the new language in § 5.720(a)(3), i.e., when “there is no medical reason to continue care.” The commenter asserted that the proposed definition is problematic because it “could interject administrative or budget issues into what is intended to be a medical decision concerning necessary and reasonable medical care.”

We disagree that our proposed definition would have the effect suggested by the commenter. To the contrary, we have clarified that a “medical professional” must make the determination, and we specify that the decision must be based on whether there is a “medical reason” to continue care. Our proposed language would reduce, not increase, the risk that the commenter describes. We therefore propose to make no change based on this comment. More fundamentally, we note that neither current § 3.556(f), nor initially proposed § 5.720(a)(3) or (4), regulate the practice or procedures of VA medical staff regarding the discharge of patients. Rather, they are intended to guide VA Regional Offices staff in determining how to adjust benefits when a beneficiary is receiving hospital, domiciliary, or nursing home care.

Current 38 CFR 3.556(f) defines “irregular discharge” as “[a] discharge for disciplinary reasons or because of the patient's refusal to accept, neglect of or obstruction of treatment; refusal to accept transfer, or failure to return from authorized absence”. In initially proposed § 5.720(a)(4), we merely restated these reasons in an easier to read format. The commenter urged that we revise our definition to:

incorporate language which reflects actions indicative of intentional and unreasonable refusal of treatment such as “refusal to accept reasonable and necessary treatment, which refusal is not the result of a mental condition,” “intentional and unreasonable neglect of treatment, which is not the result of a mental condition,” “intentional and unreasonable obstruction of treatment, which is not the result of a mental condition,” “refusal to accept medically indicated transfer to another facility, which is not the result of a mental condition,” and “intentional and unreasonable failure to return from unauthorized or authorized absence, which is not the result of a mental condition.”

The commenter asserted these changes are “especially important in view of the large number of VA patients who suffer from organic brain damage or mental illness and whose symptoms might include being resistant to treatment.”

The purpose of the Regulation Rewrite Project is to make VA's compensation and pension regulations more logical, claimant-focused, and user-friendly, not to serve as a vehicle for making major changes to VA policies. Thus, because proposed § 5.720(a)(4) is merely a restatement of the current regulations, the comment is outside the scope of this rulemaking.

5.721 Resumption of Special Monthly Compensation Based on the Need for Regular Aid and Attendance After a Veteran Is on Temporary Absence From Hospital, Domiciliary, or Nursing Home Care or Is Discharged or Released From Such Care

Initially proposed § 5.721(b) stated:

Discharge or release. If a veteran is discharged or released from hospital, domiciliary, or nursing home care, VA will resume any payment reduced or discontinued under § 5.720 effective the date the veteran was discharged or released. Payment will be resumed at the rate in effect Start Printed Page 71151before the reduction based on hospital, domiciliary, or nursing home care, unless the evidence of record shows that a different rate is required.

One commenter urged VA to revise this paragraph to require “clear and convincing evidence” to resume benefits at a lower rate than the rate which had been in effect prior to the reduction or discontinuation. We note that pursuant to the language “unless the evidence of record shows that a different rate is required” (which we also use in §§ 5.721(b), 5. 725(c)(1) and (2), 5.729(d)(1), and 5.730(c) and (d)), VA might increase or reduce a beneficiary's payment. Such a change would be based on a change in disability level or income, or other relevant factors. The change might be based on newly discovered evidence or the discovery of clear and unmistakable error in a prior decision. (In a reduction case, VA would of course comply with all applicable regulations concerning due process before making a reduction.) Since there are different situations where VA might change benefit payments, and these could involve various standards of proof, it would be erroneous to specify one standard of proof here. Moreover, in part 5 we have stated the default standards of proof in § 5.3 and the other standards in the appropriate specific sections (e.g., clear and unmistakable error in § 5.162). We therefore propose to make no change based on this comment.

§ 5.723 Reduction of Improved Pension While a Veteran, Surviving Spouse, or Child Is Receiving Medicaid-Covered Care in a Nursing Facility

Section 3.551(i) states, “Effective November 5, 1990, and terminating on September 30, 2011, if a veteran having neither spouse nor child, or a surviving spouse having no child, is receiving Medicaid-covered nursing home care, no pension or death pension in excess of $90 per month shall be paid to or for the veteran or the surviving spouse for any period after the month in which the Medicaid payments begin.” Section 601 of Public Law 111-275, 124 Stat. 2864, 2884 (2010) amended 38 U.S.C. 5503(d)(7) to extend that delimiting date through May 31, 2015, but we inadvertently failed to include the new date in initially proposed § 5.723(a). Subsequently, section 262 of Public Law 112-56 (2011) amended 38 U.S.C. 5503(d)(7) to extend that delimiting date through September 30, 2016. Subsequent to that, section 203 of Public Law 112-260 extended the date to November 30, 2016. We propose to update paragraph (a) to reflect this most recent amendment.

We also propose to add “surviving child” where appropriate in § 5.723 to state that the Medicare reduction pertains to a surviving child claiming or receiving pension in his or her own right, as required by section 601 of Public Law 111-275, 124 Stat. 2864, 2884 (2010).

B. Payments to a Beneficiary Who is Eligible for More Than One Benefit

In a document published in the Federal Register on October 2, 2007, we proposed to establish in a new 38 CFR part 5 VA regulations governing payments to beneficiaries who are eligible for more than one benefit, based on regulations currently contained in 38 CFR part 3. 72 FR 56136. The title of this proposed rulemaking was, “Payments to Beneficiaries Who Are Eligible for More than One Benefit” (RIN: AL95). We provided a 60-day comment period that ended on December 3, 2007. We received one comment from a member of the general public.

§ 5.740 Definitions Relating to Elections of Benefits

In initially proposed § 5.740(a), we stated: “Election means any writing, signed by a person authorized by § 5.741, `Persons who may make an election,' expressing a choice between two or more VA benefits to which the person is entitled, or between VA and other Federal benefits to which the person is entitled.” This language may confuse the concept of what an election is with the concept of who may file an election. An election is the written expression of choice. However, VA will only “accept” elections in accordance with § 5.741. We therefore propose to remove the language, “signed by a person authorized by § 5.741, `Persons who may make an election,'” from this section. For the same reason, we propose to remove all references to § 5.741 from § 5.740.

§ 5.742 Finality of Elections of Benefits; Cancellation of Certain Elections

The election finality rules in 38 CFR part 3 pertain to reelections as well. To ensure that this concept is clear in part 5, we propose to add to the introductory paragraph on § 5.742, the sentence, “Reelections are subject to the finality rules stated in paragraphs (a) through (e) of this section.”

When provisions similar to proposed § 5.742(d) and (e) were previously proposed as § 5.461(b)(2) and (3), they provided that a request to cancel the election must be received within 1 year from the date that the election had become effective. Following internal reconsideration of this provision, we have determined that this limitation might be overly narrow in some cases. Therefore, we now propose that § 5.742(d) and (e) contain no such limitation.

§ 5.743 General Effective Dates for Awarding, Reducing, or Discontinuing VA Benefits Because of an Election

In initially proposed § 5.743(a)(1), we stated:

Unless otherwise provided in this part, when a claim is pending and an election is timely filed under § 5.740(d), the effective date for an award of an elected benefit shall be the same as the effective date VA would assign for the awarded benefit if no election were required.

We have determined this paragraph can be shortened by removing the phrase “when a claim is pending and an election is timely filed under § 5.740(d)”.

§ 5.745 Entitlement to Concurrent Receipt of Military Retired Pay and VA Disability Compensation

In § 5.745(a), we propose to clarify the references to “the Coast and Geodetic Survey” (C&GS) and “the Environmental Science Services Administration” (ESSA), because both entities became part of the National Oceanic and Atmospheric Administration (NOAA). See Reorganization Plan No. 4 of 1970, July 9, 1970. See Dane Konop, “175 years of service to the Nation: The History of NOAA's National Ocean Survey—1807-1982.” (Editor's Preface to the 1981 National Ocean Survey Annual Report). May 1982. Unpublished. We therefore propose to revise initially proposed § 5.745(a) to refer to NOAA, “(including its predecessor agencies, the Coast and Geodetic Survey and the Environmental Science Services Administration).”

In the proposed rulemaking, we stated in proposed § 5.745(c)(1)(ii) that, “For veterans receiving disability compensation based on a VA determination of individual unemployability, the phase-in period ends on December 30, 2009.” According to statute 10 U.S.C. 1414, this phase-in period actually ends on September 30, 2009. We intend to correct paragraph (c)(1)(ii) to accurately reflect the statute.

We propose to revise the various provisions of § 5.745 regarding entitlement to full concurrent receipt of military retired pay and veterans disability compensation based on a VA determination of individual unemployability (IU). These proposed revisions are intended to implement section 642 of the National Defense Start Printed Page 71152Authorization Act of 2008, Public Law 110-181, 122 Stat. 3, 157 (2008), which provides that veterans who are entitled to receive veterans disability compensation based on a VA determination of IU are no longer subject to a phase-in period. On March 16, 2009, VA published a final rule that amended 38 CFR 3.750 by removing language that made veterans who receive disability compensation based on a VA determination of IU subject to a phase-in period. See 74 FR 11646. To avoid confusion, the final rule also made changes that clarified that both veterans who are rated 100 percent disabled under the VA rating schedule and veterans who are entitled to receive 100 percent disability compensation based on a VA determination of IU do not need to file a waiver of military retired pay. The proposed revisions of § 5.745 are therefore necessary to incorporate the amendments to § 3.750 outlined in 74 FR 11646.

In initially proposed § 5.745(d)(2), we stated that, “An election filed within 1 year from the date of notification of VA entitlement will be considered as `timely filed' for effective date purposes.” We are concerned that this provision could be read out of context to apply to all elections. Because it applies only to elections involving military retired pay and VA disability compensation, we propose to insert the phrase, “between military retired pay and disability compensation under this section that is” after “An election” in the above-quoted sentence. Similarly, we note that the preamble to initially proposed § 5.740 cited § 3.750(b) for the definition of a “timely filed” election; however, § 3.750 was amended on November 20, 2006. See 71 FR 67061. That rulemaking did not change the definition of “timely filed”, but it redesignated the paragraphs in that section so that the correct citation to the definition of “timely filed” should have read § 3.750(d).

§ 5.746 Prohibition Against Receipt of Active Military Service Pay and VA Benefits for the Same Period

The commenter requested that the proposed regulation address situations where a veteran who is receiving VA disability compensation fails to notify VA when he or she returns to active duty and is later assessed with an overpayment due to the prohibition against concurrent receipt of active military service pay and VA disability compensation. In the commenter's example, a veteran receiving VA disability compensation benefits returned to active duty for two periods of service but never informed VA. He continued to receive VA disability compensation benefits during these active duty periods and for several years after discharge, at which time he notified VA of his return to active duty. The commenter said that the VA regional office, citing 38 CFR 3.654(b)(2), discontinued the veteran's disability compensation retroactively to the date of the veteran's first return to active duty, which resulted in a large overpayment. Moreover, the regional office did not reestablish entitlement to disability compensation after the veteran's discharge but before his second period of active duty because the veteran had not requested that VA do so. According to the commenter, because the veteran had continued to receive his disability compensation during his return to active military service, he obviously had no reason to request reinstatement of that compensation. The commenter said VA should have only created an overpayment in the veteran's account for the period he/she was actually receiving both active military service pay and VA disability compensation benefits. The commenter also felt that VA and the Department of Defense should do a better job in working together to ensure these types of cases do not occur. The commenter noted that VA benefits are intended to be dispersed in a clear and consistent manner and a veteran should not be adversely affected by creating an overpayment for periods the veteran is not receiving both active military service pay and VA disability compensation benefits.

For the following reasons, we propose not to make any changes based on this comment. First, we note that when VA awards disability compensation, VA regularly instructs veterans to inform VA if they return to active duty, so that VA can properly adjust their benefits. Moreover, VA annually sends letters to all veterans receiving disability compensation notifying them whenever there is a legislative increase in the amount of their benefits for the following year. In that letter, we remind them to inform VA if they return to active duty, so that VA can properly adjust their benefits. Thus, veterans are clearly informed of their duty to notify VA.

Second, the types of cases described by the commenter are very rare. This is because, in light of the procedures described above, most veterans notify VA in advance of their return to active duty in order to avoid an overpayment. Moreover, VA exchanges data with the Department of Defense, showing which veterans have returned to active duty, on a quarterly basis. VA uses this information to discontinue the disability compensation of any veteran who failed to notify VA in advance. It is not clear why this did not happen in the particular case described by the commenter, but, again, this type of oversight is very rare.

Third, VA may waive an overpayment when collection would be against “equity and good conscience”. See 38 CFR 1.965. This relief was apparently provided to the veteran described by the commenter. For these reasons, we respectfully propose to decline to make any changes based on this comment.

§ 5.747 Effect of Military Readjustment Pay, Disability Severance Pay, and Separation Pay on VA Benefits

Proposed paragraph (a) of § 5.747 informs the reader when lump-sum readjustment pay is available to a veteran. We propose to change “on or after September 15, 1981” to “after September 14, 1981” in order to conform to the format generally used for dates throughout part 5.

In addition, we propose to add § 5.747(b)(3) to implement the National Defense Authorization Act for Fiscal Year 2008, Public Law 110-181, sec. 1646(b), 122 Stat. 3. Public Law 110-181 amended 10 U.S.C. 1212 to provide that no deduction may be made from VA disability compensation for disability severance pay received for disabilities incurred in a combat zone or in combat-related operations as designated by the Department of Defense (DoD). Also, initially proposed § 5.747(b) and (d) included as an authority citation, 10 U.S.C. 1212(c). This citation is no longer accurate based on the changes enacted by Public Law 110-181. We propose to correct the authority citations in § 5.747(b) and (d) to correctly reflect 10 U.S.C. 1212(d).

In initially proposed § 5.747(d), concerning recoupment from VA disability compensation for veterans who received lump-sum readjustment pay, disability severance pay, separation pay, or special separation pay, we inadvertently omitted language which appears in 38 CFR 3.700(a). We now propose to add the language to § 5.747.

§ 5.750 Election Between VA Benefits and Compensation Under the Federal Employees' Compensation Act for Death or Disability Due to Military Service

Initially proposed § 5.750(a)(1) described an election as “irrevocable”. To be consistent with the other sections in this subpart using the term “irrevocable”, and to ensure clarity, we propose to add the parenthetical “(there is no right of reelection)” to this paragraph.Start Printed Page 71153

§ 5.757 Elections Between VA Disability Compensation and VA Pension

Initially proposed § 5.757(b) stated “A person who is entitled to receive both death compensation and death pension may elect or reelect at any time to receive either benefit unless otherwise provided in this part, . . . ” The reference to death compensation here refers to dependency and indemnity compensation (DIC). Once a spouse or parent elects out of death compensation, they cannot elect back into the program because DIC has replaced death compensation. We therefore propose to change the term “death compensation” with “dependency and indemnity compensation”.

We propose to add the phrase “at any time” in the first sentence of § 5.757(c), so that it now reads, “A person who is entitled to receive both disability compensation and Old-Law Pension or Section 306 Pension may elect at any time to receive either benefit.” This is necessary to clarify that, consistent with current § 3.701(a), there is no time limit for either election or reelection under this paragraph.

Initially proposed § 5.757(f) omitted an exception to the rule of elections between VA benefits, found in § 3.666(d). Such exception states that “an election to receive disability compensation in lieu of pension is not required for an incarcerated veteran who does not have a dependent spouse or child.” We propose to correct this omission by adding § 5.757(f)(2).

§ 5.760 Electing Improved Death Pension Instead of Dependency and Indemnity Compensation

Initially proposed § 5.760 stated that a surviving spouse who is entitled to receive dependency and indemnity compensation (DIC) may elect to receive Improved Death Pension instead of DIC. However, it did not explicitly state that the election was revocable. Generally, all elections are revocable unless specifically stated otherwise. To clarify this point, we propose to add the sentence, “Such surviving spouse may subsequently reelect either benefit” to this section.

§ 5.762 Payment of Multiple VA Benefits to a Surviving Child Based on the Service of More Than One Veteran

Initially proposed § 5.762(c)(4) stated that a child has the right to elect or reelect one or more times to receive benefits based on the death of either parent in the same parental line. We propose to remove the phrase “one or more times” because it is unnecessary and possibly confusing in light of the general rule that there is no limit on the number of times a person may reelect a different benefit. However, this general rule is subject to exceptions stated in certain sections in this subpart.

§ 5.764 Payment of Survivors' and Dependents' Educational Assistance and VA Death Pension or Dependency and Indemnity Compensation for the Same Period

In initially proposed § 5.764, “Payment of Survivors' and Dependents' Educational Assistance and VA death pension or dependency and indemnity compensation for the same period”, we proposed to restate current § 3.707(a) and (b) and add the statement that a child who is eligible for death pension and dependents' educational assistance (DEA), “must elect between VA death pension and DEA”. We now propose to consolidate the rule on dependency and indemnity compensation (initially proposed § 5.764(a)(1)(i)) with the rule on death pension (initially proposed § 5.764(a)(1)(ii)) to improve readability. We note that current § 3.707(a) and (b) refers to “compensation” as one of the benefits to a child or spouse that cannot be paid concurrently with DEA. In the initially proposed rule, we had simply eliminated the reference to “compensation” because a dependent of a veteran has no right to disability compensation. Further review indicated that in § 3.707(a) and (b) the references to “compensation” are to the additional disability compensation payable to a veteran based on a dependent. Hence, we propose to insert into § 5.764(a)(1)(ii) and (iii), rules governing this issue.

§ 5.765 Payment of Compensation to a Parent Based on the Service or Death of Multiple Veterans

In the initially proposed rule, we reserved § 5.765. However, we inadvertently omitted § 3.700(b)(3) and now propose to add it as § 5.765, “Payment of compensation to a parent based on the service or death of multiple veterans.”

Technical Corrections

Other technical corrections will include changes based on typographical errors or changes in wording that are necessary to maintain consistency throughout part 5. For example, we mean to add either “disability” or “death” in front of the term “compensation,” where doing so would specify the type of compensation at issue. We also propose to replace the term “helpless,” as it relates to a child, with the more descriptive term, “became permanently incapable of self-support before reaching age 18” for purposes of conformity with § 5.227. Section 5.227 pertains to the considerations that VA will use in determining whether a person can be recognized as a “child” for benefit purposes. As another example, we propose to substitute the word “if” for “when” where appropriate and vice versa. We use the word “when” to describe instances where an event is certain to occur, such as the eventual death of a veteran. We use the word “if” to describe instances where an event is not certain to occur, such as the marriage or divorce of a veteran.

XVIII. Subpart M: General Provisions AL74 Apportionments to Dependents and Payments to Fiduciaries and Incarcerated Beneficiaries

In a document published in the Federal Register on January 14, 2011, we proposed to rewrite VA regulations governing apportionments to dependents and payments to fiduciaries and incarcerated beneficiaries, to be published in new 38 CFR part 5. 76 FR 2766. We provided a 60-day comment period that ended on March 15, 2011. We received submissions from four commenters, the National Organization of Veterans' Advocates, Inc.; Swords to Plowshares; and two private individuals.

§ 5.770 Apportionment Claims

The preamble to initially proposed § 5.770 discussed the omission of death compensation provisions from part 5. The preamble said that 3.450(d) refers to § 3.459, a death compensation provisions to which part 5 would have no counterpart. We failed to state that § 5.770(d) would restate the § 3.450(d) rule of apportionment among children, for DIC benefits.

§ 5.790 Determinations of Incompetency and Competency

Two of the commenters addressed initially proposed §§ 5.790(c) and (d). In the AL74 preamble to initially proposed § 5.790, “Determinations of incompetency and competency,” we stated:

Proposed § 5.790 is based on current §§ 3.353 and 3.400(x) and (y). Proposed § 5.790(c) is based on current 38 CFR 3.353(c) which begins, “Unless the medical evidence is clear, convincing and leaves no doubt as to the person's incompetency, the [agency of original jurisdiction] will make no determination of incompetency without a definite expression regarding the question by the responsible medical authorities.” The phrase “clear, convincing and leaves no doubt” is inconsistent with traditional legal evidentiary standards. Traditionally, “clear Start Printed Page 71154and convincing” is a distinct standard. “Leaves no doubt,” however, suggests a significantly higher standard. Further, if compared to the standard for conviction in a criminal case (“beyond a reasonable doubt”), “leaves no doubt” could be considered an even higher standard that is inconsistent with other areas of the law. Therefore, we are removing the term “leaves no doubt” and instead simply specifying a “clear and convincing” standard. “Clear and convincing” is a high evidentiary standard that will permit VA to make a determination of incompetency without requesting an essentially unnecessary medical opinion. Further, the standard is sufficiently high to prevent unwarranted determinations of incompetency. See Thomas v. Nicholson, 423 F.3d 1279, 1283 (Fed. Cir. 2005) (“The `clear and convincing' standard is `reserved to protect particularly important interests in a limited number of civil cases' where there is a clear liberty interest at stake, such as commitment for mental illness, deportation, or denaturalization.”) (citations omitted).

Initially proposed § 5.790(d) was an exact restatement of current 38 CFR 3.353(d), except that we had proposed to update the citation from the part 3 citation, § 3.102, to the part 5 equivalent, § 5.3(b)(2) (now § 5.3(b)(3)).

Regarding initially proposed § 5.790(c), the first commenter asserted that VA should never make a determination of incompetency without medical evidence that the claimant is mentally incompetent to manage his or her affairs. The commenter also urged that VA establish a higher burden of proof for incompetency: “beyond a reasonable doubt.” The commenter asserted that this standard is necessary to preserve consistency with the evidentiary standard in initially proposed § 5.790(d), which stated, “Where reasonable doubt arises regarding a beneficiary's mental capacity to contract or to manage his or her own affairs, including the disbursement of funds without limitation, such doubt will be resolved in favor of competency.” The commenter also asserted that the higher standard was needed “to protect claimants from incorrect administrative incompetency decisions made by lay VA employees.” The commenter asserted that a declaration of incompetency has implications for many activities, including potentially criminalizing firearms ownership.

The second commenter similarly urged VA not to omit “leaves no doubt” from its rewrite of § 3.353(c) and “to maintain `leaves no doubt' as a standard for showing incompetence.” The commenter asserted that omitting “leaves no doubt” from the standards for determining incompetency would prove beneficial only to VA and not to beneficiaries. While acknowledging VA's heavy administrative burden, the commenter asserted that allowing VA to “independently determine” whether an individual is incompetent to receive benefits without requiring a medical examination would be a violation of the individual's constitutional due process rights. Citing Mathews v. Eldridge, 424 U.S. 319 (1976), to support that assertion, the commenter stated that “[i]n Mathews . . ., the Supreme Court acknowledged the legitimacy of a medical examination as an appropriate procedural indicator of eligibility for welfare benefits.”

These comments demonstrate an apparent misunderstanding of proposed § 3.353(c) and (d) and initially proposed §§ 5.790(c) and (d). Both commenters appear to mistakenly think that “clear, convincing and leaves no doubt” is the general evidentiary standard for showing incompetency under current § 3.353. It is not. It is an evidentiary standard that VA, under current § 3.353(c), requires medical evidence to meet for an agency of original jurisdiction to make an incompetency determination without first obtaining “a definite expression regarding the question by the responsible medical authorities.” In accordance with § 3.353(d), the standard of proof to find a beneficiary incompetent when a medical opinion is of record is the preponderance of the evidence. Contrary to the first commenter's assertion, the standard in initially proposed § 5.790(c) is not inconsistent with the standard in initially proposed paragraph (d). Each standard serves a different purpose: the standard in paragraph (c) must be met for VA to make an incompetency determination without a medical opinion on competency; the standard in paragraph (d) applies to weighing all the evidence if a medical opinion is of record.

Similarly, the comments demonstrate an apparent misinterpretation of the language of § 3.353(d) to mean that VA's standard for finding incompetency is “beyond a reasonable doubt”, a standard which is used for criminal cases. In fact, the intent of this provision is to state that VA's “reasonable doubt” (or benefit of the doubt) doctrine applies to competency determinations, in the same manner that it applies to VA benefit determinations that are the subject of 38 CFR 3.102. In order to clarify this point, we propose to replace the language of initially proposed § 5.790(d) with language that is substantially the same as proposed § 5.3(b)(3), so that it would read, “When the evidence is in equipoise regarding a beneficiary's mental capacity to contract or to manage his or her own affairs, including the disbursement of funds without limitation, VA will give the benefit of the doubt to the beneficiary and find that he or she is competent.”

As to the concerns of both commenters about the standard of proof in proposed § 5.790(c), for the reasons stated in the AL74 NPRM preamble, we decline to include “leaves no doubt” in § 5.790(c) as a standard of proof of incompetency in addition to clear and convincing evidence.

In this regard, the first commenter does not refute any of the statements we made regarding § 5.790(c) in the preamble. We construe the second commenter's statement that “the Supreme Court acknowledged the legitimacy of a medical examination as an appropriate procedural indicator for welfare benefits” as an assertion that VA violates an individual's due process rights if it makes an incompetency determination without requiring a medical examination.

The second commenter's reliance on Mathews v. Eldridge is misplaced. The issue in Mathews was “whether the Due Process Clause of the Fifth Amendment requires that prior to the termination of Social Security disability benefit payments the recipient be afforded an opportunity for an evidentiary hearing.” 424 U.S. at 323. The Court compared termination of welfare payments with the termination of Social Security disability insurance (SSDI) payments. The court held that “an evidentiary hearing is not required prior to the termination of [Social Security] disability benefits and that the present administrative procedures fully comport with due process.” 424 U.S. at 349.

Though a VA incompetency determination is not a termination (or even a reduction) of benefits, initially proposed § 5.790(e) affords an evidentiary hearing prior to making the determination. We cannot agree that initially proposed § 5.790 violates any person's right to due process; it would afford beneficiaries the very process that the Court determined to be necessary only when the beneficiary of a government benefit program is most burdened by termination of the benefit. 424 U.S. at 339-43.

The commenter apparently construes the Court's mention of physical examinations in Mathews to mean that due process requires VA to examine a person as part of the process in an incompetency determination. We disagree. The Court mentioned medical examinations in the context of discussing SSA's process in determining continuing entitlement to SSDI. 424 U.S. at 337 (“If there is a conflict between the information provided by Start Printed Page 71155the beneficiary and that obtained from medical sources such as his physician, or between two sources of treatment, the agency may arrange for an examination by an independent consulting physician”). Nothing in that process requires the agency to examine the beneficiary. Likewise, VA is not required to examine a beneficiary under § 5.790; however, nothing in initially proposed § 5.790 precludes VA from arranging for a beneficiary's examination if necessary to determine competency.

To the extent that the second commenter means that VA should simply obtain an examination in every incompetency determination, and that failure to do so violates constitutional due process, the commenter essentially argues for part 5 to create a new requirement for incompetency determinations. The purpose of the Regulation Rewrite program is to make VA's compensation and pension regulations more logical, claimant-focused, and user-friendly, not to serve as a vehicle for making major changes to VA policies. Thus, the comment is outside the scope of this rulemaking.

For the sake of complete discussion of the comment, we also interpret it to mean that VA violates a beneficiary's right to due process to allow an AOJ to make an incompetency determination based on merely “clear and convincing evidence” without first obtaining a medical opinion. The commenter would have us include “leaves no doubt”, asserting that due process requires that the AOJ obtain a medical opinion unless the evidence “leaves no doubt” about incompetency. We disagree.

Even if the evidentiary standard for when an AOJ must obtain a medical opinion prior to making an incompetency determination were a matter of due process, the “clear and convincing evidence” standard is sufficient. “Leaves no doubt” would be an excessively high evidentiary standard. See Mathews, 424 U.S. at 335 (Factors to determine the requirements of due process in various proceedings).

As we explained in the prior NPRM, 76 FR 2777, “clear and convincing” and “leaves no doubt” are inconsistent evidentiary standards, the latter amounting to a standard higher even than that required for criminal conviction, that is, beyond a reasonable doubt. “Leaves no doubt” is a higher evidentiary standard than in any other regulation governing VA compensation or pension benefits. The Supreme Court has held that a “clear and convincing” standard of proof meets the due process requirements for such significant deprivation of liberty as involuntary indefinite commitment to a state mental hospital, and that the “beyond a reasonable doubt” standard is not required. Addington v. Texas, 441 U.S. 418 (1979). In contrast, liberty is not at stake in VA incompetency determinations.

The result of a VA determination of incompetency is appointment of a fiduciary to receive VA funds for the beneficiary. Clear and convincing medical evidence as to a person's incompetency is sufficient for the specific purpose of authorizing the AOJ to make an incompetency determination without first obtaining an additional medical opinion. The clear and convincing standard provides a beneficiary adequate protection against an erroneous finding of incompetency resulting from a determination made without obtaining “a definite expression as to the question by the responsible medical authorities.” We propose to make no change in response to an assertion that due process requires that the AOJ obtain a medical opinion before determining incompetency unless medical the evidence “leaves no doubt” of incompetency.

The second commenter asserted that omitting “leaves no doubt” would benefit only VA and not beneficiaries. We think the omission benefits both VA and its beneficiaries. Including “leaves no doubt” would cause needless delay in making incompetency determinations that conserve the benefits of those who cannot manage them. That delay is a detriment to beneficiaries. Eliminating that delay would be a benefit to persons who need the protection of a fiduciary to manage their funds. Including “leaves no doubt” in § 5.790(c) would increase administrative costs and consume scarce VA human resources to obtain medical opinions that are unlikely to bring helpful new information to the determination, and the risk of erroneous determinations without those opinions is slight. Consequently, we propose to make no change based on this comment.

Finally, we agree with the first commenter that VA should always have medical evidence in order to determine competency. Nothing in initially proposed § 5.790 contradicts that premise. Indeed, proposed § 5.790(c) and (d) both make clear that medical evidence is required to find a beneficiary incompetent. Under these provisions, either clear and convincing “medical evidence” of incompetency is already of record or a medical opinion addressing competency is obtained. Accordingly, we need make no change to address this concern of the commenter. Further, regarding the first commenter's sweeping comment about the need to protect beneficiaries from incorrect competency decisions by lay VA employees, we note that there is an administrative remedy if a beneficiary believes he or she has been wrongly declared incompetent: appeal to the Board of Veterans' Appeals and, if he or she disagree with that decision, to the U.S. Court of Appeals for Veterans Claims. Accordingly, we make no change based on this concern of the commenter.

§ 5.810 Incarcerated Beneficiaries—General Provisions and Definitions

One commenter on initially proposed § 5.810 urged VA to include felony convictions from foreign countries in the definitions governing incarcerations in § 5.810(b) only if the courts of the foreign country are subject to a standard Status of Forces Agreement or have due process and procedural rights equivalent to those which apply in courts in the U.S. As discussed in the AL74 preamble, initially proposed § 5.810 incorporates significant protections with regard to foreign convictions: it excludes incarceration in a foreign prison and includes incarceration in a U.S. prison based on a foreign conviction only if the offense is equivalent to a felony (or a misdemeanor for purposes of 38 U.S.C. 1505) under the laws of the U.S. Moreover, the purpose of the Regulation Rewrite Project is to make VA's compensation and pension regulations more logical, claimant-focused, and user-friendly, not to serve as a vehicle for making major changes to VA policies. Thus, the comment is outside the scope of this rulemaking.

Initially proposed § 5.810(c) stated, “The 60-day periods of incarceration described in §§ 5.811 through 5.813 begin on the day after the beneficiary is convicted of a felony (or misdemeanor for pension), if the beneficiary is incarcerated as of that date, even if the beneficiary is not sentenced on that date.” One commenter urged that the incarceration period in paragraph (c) not begin on the date of conviction “in recognition of the realities of sentencing.” The commenter added “[a]t the sentencing hearing, the trial judge might impose an alternate sentence involving no incarceration, such as home confinement or probation.”

As we stated in the preamble to AL74, “This [paragraph (c)] accords with 38 U.S.C. 1505 and 5313, which are concerned with the time spent imprisoned for a felony, or for a misdemeanor in pension cases, and not with the amount of time that the beneficiary is sentenced to serve. It also Start Printed Page 71156accords with VAOPGCPREC 3-2005, 72 FR 5801, 5802 (Feb. 7, 2007).” The fact that the sentence ultimately imposed by the court might not include incarceration does not alter VA's duty to limit payments when a beneficiary has been incarcerated for more than 60 days after being convicted. We therefore propose to make no change based on this comment.

One commenter objected to the rule set forth in initially proposed § 5.810(d), requiring that claimants or beneficiaries inform VA if they are incarcerated. The commenter asserted that the rule puts an undue burden on incarcerated veterans because they are “often impoverished or unfamiliar with system procedures” and that VA's promulgation of this rule fails to “take full account of the social, educational, and societal contexts that many incarcerated veterans come from.” The commenter also asserted that “VA should be able to gather that information from the Bureau of Prisons or the state.”

As stated in the preamble to initially proposed § 5.810, we believe the rule established in paragraph (d) is logical, fair, and consistent with other current provisions that require claimants or beneficiaries to inform VA of changes in circumstances affecting entitlement to benefits. See § 3.652, “Periodic certification of continued eligibility”, and § 3.660(a)(1), “Dependency, income and estate”. In addition, enabling VA to adjust benefits promptly on the 61st day of incarceration would be advantageous to both veterans and VA because if benefits are not promptly adjusted, VA must establish an overpayment and recoup the debt from the veteran. We do not believe that the social or educational background of incarcerated veterans prevents them from notifying VA of changes in circumstances. Veterans may notify VA via mail, email through www.va.gov, or by calling our toll free number, 1-800-827-1000.

Regarding the suggestion that “VA should be able to gather that information from the Bureau of Prisons or the state,” we note that VA already has data sharing agreements with the Federal Bureau of Prisons (BOP) and the Social Security Administration (SSA). Under our agreement with BOP, that agency periodically provides VA with a master record of all federal prisoners. Under our agreement with SSA, that agency provides VA with a master record of all prisoners who are incarcerated in state or local facilities. Although these records are intended to be comprehensive, errors or delays may prevent VA from learning of a veteran's incarceration in a timely manner. Requiring veterans to inform VA adds an additional means for VA to obtain this information, thus reducing the frequency and amount of erroneous payments. We therefore make no change based on this comment.

§ 5.811 Limitation on Disability Compensation During Incarceration

Initially proposed § 5.811 implemented the statutory requirement from 38 U.S.C. 5313 that VA limit the amount of disability compensation paid to a veteran who has been incarcerated for more than 60 days after conviction of a felony if the veteran committed the felony after October 7, 1980. One commenter noted that VA's Adjudication Manual, M21-1MR, requires VA employees to limit payments when notified by one of our federal data sharing agreements that a veteran is incarcerated. The commenter, a non-profit organization that represents veterans in their VA claims, stated that in their experience, when VA receives such notice, it presumes that the veteran has been convicted of a felony rather than a misdemeanor and remains incarcerated 60 days later. The commenter urged VA to add a provision to § 5.811(a) stating that VA will not limit benefits “until it receives official verification that the veteran has been incarcerated for more than 60 days after a conviction of a felony.”

As a preliminary matter, we note that VA does not limit benefits based on incarceration without providing due process under 38 CFR 3.103. Under that provision, VA notifies the veteran that it proposes to limit benefits based on information indicating that he or she is incarcerated. Before VA will take action to limit benefits, the veteran has 60 days in which to respond (e.g., provide evidence to VA showing that he or she was incarcerated for less than 61 days or incarcerated for conviction of a misdemeanor, not a felony).

Moreover, the purpose of the Regulation Rewrite Project is to make VA's compensation and pension regulations more logical, claimant-focused, and user-friendly, not to serve as a vehicle for making major changes to VA policies. Thus, the comment recommending additional, new procedures is outside the scope of this rulemaking.

§ 5.812 Limitation on Dependency and Indemnity Compensation During Incarceration

Initially proposed § 5.812(d) stated, “Whenever DIC is awarded to an incarcerated person, any amounts due for periods prior to the date of reduction under this section shall be paid to the incarcerated person.” This language is restated for compensation (§ 5.811(b)). It is nearly identical to the wording found in current 38 CFR 3.665(k).

One commenter urged, “In order to clarify that there will be no reduction for amounts due prior to the date of reduction, the language in subsection (d) should read as follows: `Any amounts due for periods prior to the date of limitation under this section shall be paid to the incarcerated person without the limitation imposed under this section.' ”

We believe the language of §§ 3.665(k), 5.811(b), and 5.812(d) are entirely clear that “amounts due for periods prior to the date of reduction under this section” means the normal amount payable to an unincarcerated beneficiary. We therefore propose to make no change based on this comment.

§ 5.813 Discontinuance of Pension During Incarceration.

Initially proposed § 5.813(b)(2) stated, in part:

If the veteran has a spouse or child but elects to receive disability compensation after VA has notified the veteran of the effect of electing disability compensation on the amount available for apportionment, then the award of disability compensation will be effective on the later of the date VA received the veteran's election or the date of discontinuance of pension under paragraph (a) of this section.

Regarding this proposed language, one commenter stated, “The applicability of the `mailbox rule' is not readily apparent in the proposed language” and suggested that the following language be added: “If the veteran's election is submitted by U.S. Mail, the date received will be considered to be the postmark date.” The commenter offered no reason why this rule should be incorporated into paragraph (b)(2).

We did not imply nor intend that the “mailbox rule” apply in § 5.813. Current VA regulations in 38 CFR part 3 do not contain such a rule. The purpose of the Regulation Rewrite Project is to make VA's compensation and pension regulations more logical, claimant-focused, and user-friendly, not to serve as a vehicle for making major changes to VA policies. Thus, the comment is outside the scope of this rulemaking.

§ 5.814 Apportionment When a Primary Beneficiary Is Incarcerated.

One commenter approved of the regulations in AL74 limiting payments to incarcerated veterans and urged that VA stop apportioning such payments to the families of incarcerated veterans. The commenter did not explain the Start Printed Page 71157basis for the comment that benefits should not be apportioned to the incarcerated beneficiary's family.

Congress specifically authorized VA to make apportionments of compensation and dependency and indemnity compensation to dependents of incarcerated beneficiaries in 38 U.S.C. 1505(b) and (c) and 5313(b), and such apportionments may be important in avoiding hardship to the beneficiary's dependents during the beneficiary's incarceration. Further, the purpose of the reduction of benefits is not to further punish the incarcerated beneficiary, but to prevent unnecessary expenditure of government funds to persons otherwise supported at government expense and to avoid accumulation of funds with prisoners who might use those funds to purchase contraband. Prohibiting apportionment to an incarcerated beneficiary's dependents would not further those objectives.

Moreover, the purpose of the Regulation Rewrite Project is to make VA's compensation and pension regulations more logical, claimant-focused, and user-friendly, not to serve as a vehicle for making major changes to VA policies. Thus, the comment is outside the scope of this rulemaking.

§ 5.815 Resumption of Disability Compensation or Dependency and Indemnity Compensation Upon a Beneficiary's Release From Incarceration.

§ 5.816 Resumption of Pension Upon a Beneficiary's Release From Incarceration.

One commenter urged VA to remove the requirement in initially proposed §§ 5.815-5.816 that the veteran inform VA when he or she is released from incarceration, in order for VA to restore benefits by a certain date. The commenter noted that there is a link between military service during wartime and subsequent incarceration and asked that VA thank veterans for their service by not requiring them “to re-legitimize their standing as war veterans.”

We note that these provisions are not new; they have existed in 38 CFR 3.665(i) and 3.666(c) for decades. We do not believe it is unduly burdensome for veterans to inform VA when they are released from incarceration; as stated above regarding proposed § 5.810, this can be easily done through a variety of methods—via mail, email through www.va.gov, or by calling our toll free number, 1-800-827-1000. Moreover, VA's data sharing agreements with BOP and SSA (also discussed above regarding § 5.810) do not provide VA with notice when a veteran is released from incarceration. For these reasons, we propose to make no change based on this comment.

§ 5.817 Fugitive Felons

Consistent with 38 U.S.C. 5313B and current 38 CFR 3.665-3.666, initially proposed § 5.817 stated that VA will not pay or apportion benefits to, for, or on behalf of a person for any period during which that person is a fugitive felon. Also consistent with those provisions, initially proposed § 5.817 defined fugitive felon as a person who is “(i) Fleeing to avoid prosecution for a felony or for an attempt to commit a felony; (ii) Fleeing custody or confinement after conviction of a felony or conviction of an attempt to commit a felony; or (iii) Fleeing to avoid custody or confinement for violating a condition of probation or parole imposed for commission of a felony under Federal or State law.”

One commenter noted that, although the proposed language mirrors the statutory language, VA's Adjudication Manual, M21-1MR, states that a person is presumed to be a fugitive felon if there is an outstanding arrest warrant against them. This is problematic, the commenter asserted, because “the warrant may be many years old and it is possible the veteran has no idea that a warrant was even issued, let alone outstanding.” The commenter noted that the Social Security Administration (SSA) has a similar statutory requirement and previously operated under such a presumption. The commenter noted that “multiple lawsuits forced SSA to alter enforcement of [its] regulation and pay back millions of dollars in benefits to affected individuals.” The commenter urged VA to revise § 5.817 to define a fugitive felon as “one who has a specific intent to flee or avoid prosecution for a felony, specific intent to flee or avoid custody after conviction of a felony, or specific intent to flee or avoid a condition of felony probation or parole.”

As with limitations of benefits for incarcerated benefits under § 5.811, VA provides the same type of due process for veterans who may be fleeing felons. These due process procedures would mitigate the situations that the commenter is concerned with. That is, the veteran has the opportunity to present evidence showing that he or she was not actually fleeing, and if that is shown, then VA will take no action to limit benefits.

Moreover, the purpose of the Regulation Rewrite Project is to make VA's compensation and pension regulations more logical, claimant-focused, and user-friendly, not to serve as a vehicle for making major changes to VA policies. Thus, the comment is outside the scope of this rulemaking.

Endnote Regarding Amendatory Language

We intend to ultimately remove part 3 entirely, but we are not including amendatory language to accomplish that at this time. VA will provide public notice before removing part 3.

Paperwork Reduction Act

This document contains no provisions constituting a new collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

Regulatory Flexibility Act

The Secretary hereby certifies that this proposed regulatory amendment 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 proposed amendment would not affect any small entities. Therefore, pursuant to 5 U.S.C. 605(b), this proposed amendment is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

Executive Orders 12866 and 13563

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action,” which requires review by the Office of Management and Budget (OMB), as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the Start Printed Page 71158rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.” The economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined and it has been determined not to be a significant regulatory action under Executive Order 12866.

VA has determined that there are no direct costs or savings associated with this proposed rulemaking, because it will neither expand nor restrict the rights or benefits of VA claimants or beneficiaries and will not change the way VA develops, processes, or pays a claim for benefits. VA has not yet determined the exact manner in which it will transition from the current part 3 regulations to the part 5 regulations. Prior to publication of the final rule, VA will determine this and estimate the costs associated with this transition.

Executive Order 13563 also requires federal agencies to make regulations “accessible, consistent, written in plain language, and easy to understand” and requires “retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them . . .” This NPRM is the cornerstone of VA's compliance with this Executive Order. See www.whitehouse.gov/​21stcenturygov/​actions/​21st-century-regulatory-system.

Unfunded Mandates

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any 1 year. This proposed rule would have no such effect on State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance Numbers and Titles

The Catalog of Federal Domestic Assistance program numbers and titles for this proposal are 64.100, Automobiles and Adaptive Equipment for Certain Disabled Veterans and Members of the Armed Forces; 64.101, Burial Expenses Allowance for Veterans; 64.102, Compensation for Service-Connected Deaths for Veterans' Dependents; 64.104, Pension for Non-Service-Connected Disability for Veterans; 64.105, Pension to Veterans Surviving Spouses, and Children; 64.106, Specially Adapted Housing for Disabled Veterans; 64.109, Veterans Compensation for Service-Connected Disability; 64.110, Veterans Dependency and Indemnity Compensation for Service-Connected Death; 64.115, Veterans Information and Assistance; and 64.127, Monthly Allowance for Children of Vietnam Veterans Born with Spina Bifida.

Signing Authority

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. John R. Gingrich, Chief of Staff, approved this document on January 30, 2013, for publication.

This part applies only to claims for benefits filed before [EFFECTIVE DATE OF FINAL RULE]. See § 5.0 of this chapter, Scope and applicability.