Vocational Rehabilitation and Employment Program-Initial Evaluations, 50872-50875 [E6-14079]
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Federal Register / Vol. 71, No. 166 / Monday, August 28, 2006 / Proposed Rules
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[FR Doc. E6–14205 Filed 8–25–06; 8:45 am]
BILLING CODE 4312–FN–P
DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Part 21
RIN 2900–AM25
Vocational Rehabilitation and
Employment Program—Initial
Evaluations
Department of Veterans Affairs.
Proposed rule.
AGENCY:
ACTION:
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SUMMARY: This document proposes to
amend regulations of the Department of
Veterans Affairs (VA) concerning initial
evaluations of individuals who apply
for vocational rehabilitation and
employment benefits. These proposed
regulations are intended to reflect
changes in law, VA’s interpretation of
applicable law and its determinations of
procedures appropriate for use in the
initial evaluation, to improve
readability, and to make other
nonsubstantive changes.
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Comments must be received on
or before October 27, 2006.
ADDRESSES: Written comments may be
submitted by: mail or hand-delivery to
Director, Regulations Management
(00REG1), Department of Veterans
Affairs, 810 Vermont Ave., NW., Room
1068, Washington, DC 20420; fax to
(202) 273–9026; or e-mail through
https://www.Regulations.gov. Comments
should indicate that they are submitted
in response to ‘‘RIN 2900–AM25.’’ All
comments received will be available for
public inspection in the Office of
Regulation Policy and Management,
Room 1063B, between the hours of 8
a.m. and 4:30 p.m., Monday through
Friday (except holidays). Please call
(202) 273–9515 for an appointment.
FOR FURTHER INFORMATION CONTACT:
Catherine Kruger, Senior Policy Analyst,
(202) 273–7344, or Mark Hawkins,
Vocational Rehabilitation Counselor,
(202) 273–6923, Vocational
Rehabilitation and Employment Service
(28), Veterans Benefits Administration,
Department of Veterans Affairs, 810
Vermont Ave., NW., Washington, DC
20420.
SUPPLEMENTARY INFORMATION: We
propose to amend VA’s regulations in
38 CFR Part 21, Subpart A—Vocational
Rehabilitation Under 38 U.S.C. Chapter
31, concerning initial evaluations of
individuals who apply for vocational
rehabilitation and employment benefits.
These proposed regulations are
intended to reflect changes in law
regarding initial evaluations and VA’s
interpretation of applicable law and its
determinations of procedures
appropriate for use in the initial
evaluation, and to improve readability.
We also propose to make a
nonsubstantive conforming change in 38
CFR Part 21, Subpart M—Vocational
Training and Rehabilitation for Certain
Children of Vietnam Veterans—Spina
Bifida and Covered Birth Defects.
In Davenport v. Brown, 7 Vet. App.
476 (1995), the United States Court of
Appeals for Veterans Claims (then the
United States Court of Veterans
Appeals) set aside VA regulations that
require a veteran’s service-connected
disability to cause the employment
handicap or serious employment
handicap that establishes the veteran’s
entitlement to vocational rehabilitation
DATES:
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and employment benefits. The court
held that the requirement of 38 CFR
21.51(c) that a veteran’s serviceconnected disability must ‘‘materially
contribute’’ to the veteran’s employment
handicap is inconsistent with 38 U.S.C.
3102. Thus, the court set aside
§ 21.51(c)(2), (e), (f)(1)(ii), and (f)(2) to
the extent that they require a causal
nexus between a veteran’s serviceconnected disability and that veteran’s
employment handicap. The court found
unlawful the noted provisions of
§ 21.51(c)(2), which require that, while
a veteran’s service-connected disability
need not be the sole or primary cause
of an employment handicap or serious
employment handicap, it must
‘‘materially contribute’’ to the handicap.
On October 9, 1996, Congress enacted
the Veterans’ Benefits Improvements
Act of 1996 (Pub. L. 104–275), which
redefined the terms ‘‘employment
handicap’’ and ‘‘serious employment
handicap’’ to include a requirement that
an individual’s vocational impairment
be one ‘‘resulting in substantial part
from’’ one or more service-connected
disabilities, with respect to applications
received on or after the date of
enactment.
To reflect the dates of applicability of
these changes in legal requirements, the
proposed rule would provide that for
determinations made on any
applications filed on or after March 30,
1995, the date of the Davenport v.
Brown decision, but before October 9,
1996, the individual’s service-connected
disability(ies) need not contribute to the
individual’s overall vocational
impairment or significant vocational
impairment.
For clarification, the table below
summarizes the standards used to
determine entitlement to vocational
rehabilitation and employment benefits
and services for applicants during these
three distinct time periods. These
concern entitlement determinations
made for:
(1) Claims filed prior to the Davenport
decision;
(2) Claims filed after the Davenport
decision but prior to enactment of
Public Law 104–275; and
(3) Claims filed following enactment
of Public Law 104–275.
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Time period
Standard
Explanation
Prior to Davenport decision (claims filed from
April 1, 1981 (Public Law 96–466), to March
29, 1995).
The individual’s service-connected disability(ies) must materially contribute to the
impairment of employment. The serious
employment handicap determinations are
based on level of service-connected disability(ies) and other criteria as provided in
38 CFR 21.52.
After Davenport decision, but prior to Public
Law 104–275 (claims filed from March 30,
1995, to October 8, 1996).
The individual’s service-connected disability(ies) need not contribute to the impairment which results in the employment
handicap. The issues for determination are
the existence of vocational impairment and
the extent or significance of the impairment.
The individual’s service-connected disability(ies) must contribute ‘‘in substantial
part’’ to the impairment of employability.
A person found to have an employment handicap who is rated 50 percent or more service-connected is automatically found to
have a serious employment handicap.
Those rated less than 50 percent serviceconnected have to meet certain specific
percent of service-connected disability(ies)
and other criteria to be determined to have
a serious employment handicap.
The requirements that service-connected disability(ies) contribute to the employment
handicap and serious employment handicap
are removed, as are the 50 percent, 30–40
percent, and 10–20 percent requirements
for finding a serious employment handicap.
This standard was provided under Public Law
104–275.
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After Public Law 104–275 (claims filed on or
after October 9, 1996).
In our view, the phrase ‘‘resulting in
substantial part’’ in the statutory
definitions of ‘‘employment handicap’’
and ‘‘serious employment handicap’’
has the same meaning that ‘‘material
contribution’’ has in current
§ 21.51(c)(2). We are proposing to
amend the regulations to reflect the
statutory language. We propose to revise
§§ 21.50 through 21.52 in light of these
changes in law, and for the additional
reasons that we discuss in this
preamble.
We propose to revise current § 21.50
to make clear what constitutes an initial
evaluation for vocational rehabilitation
and employment benefits, who is
entitled to an initial evaluation, who
conducts it, what questions it seeks to
answer, and how a veteran’s serviceconnected disability(ies) must
contribute to vocational impairment.
The initial evaluation is central to
employment handicap and serious
employment handicap determinations
under § 21.51 and § 21.52, respectively.
We propose to further revise § 21.50
by consolidating and clarifying the
factors VA develops and assesses in
determining whether an individual has
an employment handicap; if so, whether
the individual has a serious
employment handicap; and, lastly,
whether the achievement of a vocational
goal by the individual is currently
reasonably feasible. Proposed § 21.50(c)
would set forth various factors for
development and assessment as part of
the initial evaluation, with minor
modifications to existing provisions to
improve readability.
We propose to remove the provisions
of current § 21.50(d)(1) as unnecessary
and obsolete, because that paragraph
concerns determinations made prior to
the initial evaluation and the
determinations it refers to are no longer
made by staff outside the Vocational
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Rehabilitation and Employment
Division.
Current § 21.50(d)(2) identifies who,
within VA, is responsible for making
initial evaluation determinations. We
propose to remove these provisions
from § 21.50 and to make appropriate
references in § 21.51 and § 21.52,
respectively, as to who is responsible for
making each determination.
We propose to revise § 21.51 to reflect
criteria that VA develops and assesses
in determining the existence of an
employment handicap. Certain factors
for determining that the serviceconnected disability(ies) ‘‘materially
contribute’’ to the impairment to
employment set forth in current
§ 21.51(e) would be set forth in
proposed § 21.51 for determining that
the service-connected disability(ies)
contribute ‘‘in substantial part’’ to the
impairment to employment, as
discussed above.
Current § 21.52 requires that the
determination of serious employment
handicap directly relate to differing
levels of service-connected disability
ratings. Current § 21.52 also requires a
finding of serious employment handicap
if an individual is found to have an
employment handicap along with a
neuropsychiatric service-connected
disability rated at 30 percent or more or
any other service-connected disability
rated at 50 percent or more.
Public Law 104–275 redefined the
term ‘‘serious employment handicap’’ to
make clear that the impairment to
employability must meet both of the
following conditions:
• It must be a significant impairment
of an individual’s ability to prepare for,
obtain or retain employment consistent
with abilities, aptitudes, and interests.
• It must result in substantial part
from service-connected disabilities rated
at 10 percent or more.
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We propose to revise § 21.52 to reflect
the factors VA develops and assesses in
making the determination of
‘‘significant impairment.’’ These factors
differ, in part, from the factors used to
develop and assess the lower level of
‘‘impairment’’ necessary for
employment handicap in § 21.51, to
ensure that an individual with a
significant vocational impairment
receives the rehabilitation services he or
she needs.
Lastly, we propose to make a
nonsubstantive change in subpart M to
§ 21.8032(a) by removing a reference to
§ 21.50(b)(5) and adding, in its place, a
reference to § 21.50(b)(3).
Paperwork Reduction Act of 1995
This proposed rule contains no new
collections of information under the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501–3521). The Office of
Management and Budget has approved
collection of information provisions that
are related to the provisions of proposed
38 CFR 21.50 under OMB control
number 2900–0009 (entitled ‘‘Disabled
Veterans Application for Vocational
Rehabilitation and 38 CFR 21.30’’) and
has approved collection of information
provisions that are related to the
provisions of proposed §§ 21.50 through
21.52 under OMB control number 2900–
0092 (entitled ‘‘Counseling Record—
Personal Information’’).
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 an
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
given year. This proposed rule would
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Federal Register / Vol. 71, No. 166 / Monday, August 28, 2006 / Proposed Rules
have no such effect on State, local, and
tribal governments, or on the private
sector.
Executive Order 12866
Executive Order 12866 directs
agencies to assess all 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, and other advantages;
distributive impacts; and equity). The
Order classifies a rule as a significant
regulatory action requiring review by
the Office of Management and Budget if
it meets any one of a number of
specified conditions, including: having
an annual effect on the economy of $100
million or more, creating a serious
inconsistency or interfering with an
action of another agency, materially
altering the budgetary impact of
entitlements or the rights of entitlement
recipients, or raising novel legal or
policy issues. VA has examined the
economic, legal, and policy implications
of this proposed rule and has concluded
that it is a significant regulatory action
under Executive Order 12866 because it
raises novel policy issues.
Regulatory Flexibility Act
The Secretary hereby certifies that
this proposed regulatory amendment
would 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 directly affect any small entities.
Only individuals could be directly
affected. 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.
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Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic
Assistance numbers and titles for
programs that would be affected by this
proposed rule are 64.116, Vocational
Rehabilitation for Disabled Veterans,
and 64.128, Vocational Training and
Rehabilitation for Vietnam Veterans’
Children with Spina Bifida or Other
Covered Birth Defects.
List of Subjects in 38 CFR Part 21
Administrative practice and
procedure, Armed forces, Civil rights,
Claims, Colleges and universities,
Conflict of interests, Education,
Employment, Grant programs—
education, Grant programs—veterans,
Health care, Loan programs—education,
Loan programs—veterans, Manpower
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training programs, Reporting and
recordkeeping requirements, Schools,
Travel and transportation expenses,
Veterans, Vocational education,
Vocational rehabilitation.
Approved: May 8, 2006.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.
For the reasons set forth in the
preamble, VA proposes to amend 38
CFR part 21 (subparts A and M) as
follows:
PART 21—VOCATIONAL
REHABILITATION AND EDUCATION
Subpart A—Vocational Rehabilitation
Under 38 U.S.C. Chapter 31
1. Revise the authority citation for
part 21, subpart A to read as follows:
Authority: 38 U.S.C. 501(a), ch. 31, and as
noted in specific sections.
2. Revise § 21.50 to read as follows:
§ 21.50
Initial evaluation.
(a) Entitlement to an initial
evaluation. VA will provide an initial
evaluation to an individual who:
(1) Applies for benefits under 38
U.S.C. chapter 31; and
(2) Meets the service-connected
disability requirements of § 21.40.
(Authority: 38 U.S.C. 3101(9), 3106)
(b) Determinations to be made by VA
during the initial evaluation. A
counseling psychologist (CP) or
vocational rehabilitation counselor
(VRC) will determine:
(1) Whether the individual has an
employment handicap as determined in
accordance with this section and
§ 21.51;
(2) Whether an individual with an
employment handicap has a serious
employment handicap as determined in
accordance with this section and
§ 21.52; and
(3) Whether the achievement of a
vocational goal is currently reasonably
feasible as described in § 21.53.
(Authority: 38 U.S.C. 3102, 3103)
(c) Factors for assessment as part of
the initial evaluation. In making the
determinations under paragraph (b) of
this section, the following factors will
be developed and assessed:
(1) The handicapping effects of the
individual’s service-connected and
nonservice-connected disability(ies) on
employability and on independence in
daily living;
(2) The individual’s physical and
mental capabilities that may affect
employability and ability to function
independently in daily living activities
in family and community;
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(3) The impact of the individual’s
identified vocational impairments on
the individual’s ability to prepare for,
obtain, and keep suitable employment;
(4) The individual’s abilities,
aptitudes, and interests;
(5) The individual’s personal history
and current circumstances (including
educational and training achievements,
employment record, developmental and
related vocationally significant factors,
and family and community adjustment);
and
(6) Other factors that may affect the
individual’s employability.
(Authority: 38 U.S.C. 3106(a))
(d) Need for cooperation in
evaluation. The individual’s
cooperation is essential during the
initial evaluation. If the individual does
not cooperate, the CP or VRC will make
reasonable efforts to secure the
individual’s cooperation. If, despite
those efforts, the individual fails to
cooperate, VA will discontinue the
initial evaluation. A redetermination of
entitlement as described in § 21.58 will
be made in the case of an individual
whose program has been discontinued
due to failure to cooperate.
(Authority: 38 U.S.C. 3111)
3. Revise § 21.51 to read as follows:
§ 21.51 Determining employment
handicap.
For the purposes of § 21.50, an
employment handicap will be found to
exist only if a CP or VRC determines
that the individual meets each of the
following conditions:
(a) Vocational impairment. The
individual has a vocational impairment;
that is, an impairment of the ability to
prepare for, obtain, or keep employment
in an occupation consistent with his or
her abilities, aptitudes, and interests.
(b) Effects of impairment not
overcome. The individual has not
overcome the effects of the individual’s
impairment of employability through
employment in, or qualifying for
employment in, an occupation
consistent with his or her abilities,
aptitudes, and interests. This situation
includes an individual who qualifies for
a suitable job, but who does not obtain
or keep the job for reasons beyond his
or her control.
(Authority: 38 U.S.C. 3102)
(c) Contribution of the serviceconnected disability(ies) to the
individual’s overall vocational
impairment. (1) Except as provided in
paragraph (c)(3) of this section, the
service-connected disability(ies) must
contribute in substantial part to the
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individual’s overall vocational
impairment. This means that the
disability(ies) must have an identifiable,
measurable, or observable causative
effect on the overall vocational
impairment, but need not be the sole or
primary cause of the employment
handicap.
(2) When determining the individual’s
overall vocational impairment, the CP or
VRC will consider the factors identified
in § 21.50(c).
(3) For determinations made on
applications for vocational
rehabilitation filed on or after March 30,
1995, but before October 9, 1996, the
individual’s service-connected
disability(ies) need not contribute to the
individual’s overall vocational
impairment.
(Authority: 38 U.S.C. 3101, 3102)
4. Revise § 21.52 to read as follows:
§ 21.52 Determining serious employment
handicap.
(a) Requirements for determining
serious employment handicap. For each
individual who is found to have an
employment handicap, a CP or VRC
must make a separate determination of
whether the individual has a serious
employment handicap. For the purposes
of an initial evaluation under § 21.50, a
serious employment handicap will be
found to exist only if a CP or VRC
determines that the individual meets
each of the following conditions:
(1) Significant vocational impairment.
The individual has a significant
vocational impairment; that is, a
significant impairment of the ability to
prepare for, obtain, or keep employment
in an occupation consistent with his or
her abilities, aptitudes, and interests,
considering the factors described in
§ 21.50 and paragraph (b) of this section.
(2) Effects of significant impairment
not overcome. The individual has not
overcome the effects of the significant
vocational impairment through
employment in, or qualifying for
employment in, an occupation
consistent with his or her abilities,
aptitudes, and interests. This includes
an individual who qualifies for a
suitable job, but who does not obtain or
keep the job for reasons beyond his or
her control.
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(Authority: 38 U.S.C. 3102)
(3) Contribution of the serviceconnected disability(ies) to the
individual’s overall significant
vocational impairment. (i) Except as
provided in paragraph (a)(3)(ii) of this
section, the service-connected
disability(ies) must contribute in
substantial part to the individual’s
overall significant vocational
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impairment. This means that the
disability(ies) must have an identifiable,
measurable, or observable causative
effect on the overall significant
vocational impairment, but need not be
the sole or primary cause of the serious
employment handicap.
(Authority: 38 U.S.C. 3101)
(ii) For determinations made on
applications for vocational
rehabilitation filed on or after March 30,
1995, but before October 9, 1996, the
individual’s service-connected
disability(ies) need not contribute to the
individual’s overall significant
vocational impairment.
(b) Factors for assessment during the
initial evaluation, when determining
whether a significant vocational
impairment exists. The combination of
all restrictions and their effects on the
individual define the extent of the
vocational impairment and its
significance. When determining
whether the individual has a significant
vocational impairment, VA will develop
and assess the following factors and
their effects:
(1) Number of disabling conditions;
(2) Severity of disabling condition(s);
(3) Existence of neuropsychiatric
condition(s);
(4) Adequacy of education or training
for suitable employment;
(5) Number, length, and frequency of
periods of unemployment or
underemployment;
(6) A pattern of reliance on
government support programs, such as
welfare, service-connected disability
compensation, nonservice-connected
disability pension, worker’s
compensation, or Social Security
disability;
(7) Extent and complexity of services
and assistance the individual needs to
achieve rehabilitation;
(8) Negative attitudes toward
individuals with disabilities and other
evidence of restrictions on suitable
employment, such as labor market
conditions; discrimination based on age,
race, gender, disability or other factors;
alcoholism or other substance abuse;
and
(9) Other factors that relate to
preparing for, obtaining, or keeping
employment consistent with the
individual’s abilities, aptitudes, and
interests.
(Authority: 38 U.S.C. 3102, 3106)
Subpart M—Vocational Training and
Rehabilitation for Certain Children of
Vietnam Veterans—Spina Bifida and
Covered Birth Defects
5. Revise the authority citation for
part 21, subpart M to read as follows:
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50875
Authority: 38 U.S.C. 101, 501, 512, 1151
note, ch. 18, 5112, and as noted in specific
sections.
§ 21.8032
[Amended]
6. In § 21.8032, amend paragraph (a)
by removing ‘‘§§ 21.50(b)(5)’’ and
adding, in its place, ‘‘§§ 21.50(b)(3)’’.
[FR Doc. E6–14079 Filed 8–25–06; 8:45 am]
BILLING CODE 8320–01–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R09–OAR–2006–0590; FRL–8213–4]
Approval and Promulgation of
Implementation Plans; Revisions to the
Nevada State Implementation Plan;
Requests for Rescission
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
SUMMARY: EPA is proposing, under the
Clean Air Act, approval of revisions to
the applicable state implementation
plan for the State of Nevada and
disapproval of other revisions. These
revisions involve certain regulations
and statutes for which the State of
Nevada is requesting rescission. EPA is
also proposing approval of certain
updated statutes submitted by the State
of Nevada as replacements for outdated
statutes in the applicable plan. The
approval proposed herein is contingent
upon receipt of certain public notice
and hearing documentation from the
State of Nevada. EPA is proposing this
action under the Clean Air Act
obligation to take action on State
submittals of revisions to state
implementation plans. The intended
effect is to rescind unnecessary
provisions from the applicable plan,
retain necessary provisions, and
approve replacement provisions for
certain statutes for which rescissions are
proposed for disapproval. EPA is taking
comments on this proposal and plans to
follow with a final action.
DATES: Any comments must arrive by
September 27, 2006.
ADDRESSES: Submit comments,
identified by docket number EPA–R09–
OAR–2006–0590, by one of the
following methods:
1. Federal eRulemaking Portal:
https://www.regulations.gov. Follow the
on-line instructions.
2. E-mail: steckel.andrew@epa.gov.
3. Mail or deliver: Andrew Steckel
(Air–4), U.S. Environmental Protection
Agency Region IX, 75 Hawthorne Street,
San Francisco, CA 94105–3901.
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]]>Agencies
[Federal Register Volume 71, Number 166 (Monday, August 28, 2006)]
[Proposed Rules]
[Pages 50872-50875]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-14079]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 21
RIN 2900-AM25
Vocational Rehabilitation and Employment Program--Initial
Evaluations
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This document proposes to amend regulations of the Department
of Veterans Affairs (VA) concerning initial evaluations of individuals
who apply for vocational rehabilitation and employment benefits. These
proposed regulations are intended to reflect changes in law, VA's
interpretation of applicable law and its determinations of procedures
appropriate for use in the initial evaluation, to improve readability,
and to make other nonsubstantive changes.
DATES: Comments must be received on or before October 27, 2006.
ADDRESSES: Written comments may be submitted by: mail or hand-delivery
to Director, Regulations Management (00REG1), Department of Veterans
Affairs, 810 Vermont Ave., NW., Room 1068, Washington, DC 20420; fax to
(202) 273-9026; or e-mail through https://www.Regulations.gov. Comments
should indicate that they are submitted in response to ``RIN 2900-
AM25.'' All comments received will be available for public inspection
in the Office of Regulation Policy and Management, Room 1063B, between
the hours of 8 a.m. and 4:30 p.m., Monday through Friday (except
holidays). Please call (202) 273-9515 for an appointment.
FOR FURTHER INFORMATION CONTACT: Catherine Kruger, Senior Policy
Analyst, (202) 273-7344, or Mark Hawkins, Vocational Rehabilitation
Counselor, (202) 273-6923, Vocational Rehabilitation and Employment
Service (28), Veterans Benefits Administration, Department of Veterans
Affairs, 810 Vermont Ave., NW., Washington, DC 20420.
SUPPLEMENTARY INFORMATION: We propose to amend VA's regulations in 38
CFR Part 21, Subpart A--Vocational Rehabilitation Under 38 U.S.C.
Chapter 31, concerning initial evaluations of individuals who apply for
vocational rehabilitation and employment benefits. These proposed
regulations are intended to reflect changes in law regarding initial
evaluations and VA's interpretation of applicable law and its
determinations of procedures appropriate for use in the initial
evaluation, and to improve readability. We also propose to make a
nonsubstantive conforming change in 38 CFR Part 21, Subpart M--
Vocational Training and Rehabilitation for Certain Children of Vietnam
Veterans--Spina Bifida and Covered Birth Defects.
In Davenport v. Brown, 7 Vet. App. 476 (1995), the United States
Court of Appeals for Veterans Claims (then the United States Court of
Veterans Appeals) set aside VA regulations that require a veteran's
service-connected disability to cause the employment handicap or
serious employment handicap that establishes the veteran's entitlement
to vocational rehabilitation and employment benefits. The court held
that the requirement of 38 CFR 21.51(c) that a veteran's service-
connected disability must ``materially contribute'' to the veteran's
employment handicap is inconsistent with 38 U.S.C. 3102. Thus, the
court set aside Sec. 21.51(c)(2), (e), (f)(1)(ii), and (f)(2) to the
extent that they require a causal nexus between a veteran's service-
connected disability and that veteran's employment handicap. The court
found unlawful the noted provisions of Sec. 21.51(c)(2), which require
that, while a veteran's service-connected disability need not be the
sole or primary cause of an employment handicap or serious employment
handicap, it must ``materially contribute'' to the handicap.
On October 9, 1996, Congress enacted the Veterans' Benefits
Improvements Act of 1996 (Pub. L. 104-275), which redefined the terms
``employment handicap'' and ``serious employment handicap'' to include
a requirement that an individual's vocational impairment be one
``resulting in substantial part from'' one or more service-connected
disabilities, with respect to applications received on or after the
date of enactment.
To reflect the dates of applicability of these changes in legal
requirements, the proposed rule would provide that for determinations
made on any applications filed on or after March 30, 1995, the date of
the Davenport v. Brown decision, but before October 9, 1996, the
individual's service-connected disability(ies) need not contribute to
the individual's overall vocational impairment or significant
vocational impairment.
For clarification, the table below summarizes the standards used to
determine entitlement to vocational rehabilitation and employment
benefits and services for applicants during these three distinct time
periods. These concern entitlement determinations made for:
(1) Claims filed prior to the Davenport decision;
(2) Claims filed after the Davenport decision but prior to
enactment of Public Law 104-275; and
(3) Claims filed following enactment of Public Law 104-275.
[[Page 50873]]
------------------------------------------------------------------------
Time period Standard Explanation
------------------------------------------------------------------------
Prior to Davenport decision The individual's A person found to
(claims filed from April 1, service-connected have an employment
1981 (Public Law 96-466), disability(ies) handicap who is
to March 29, 1995). must materially rated 50 percent or
contribute to the more service-
impairment of connected is
employment. The automatically found
serious employment to have a serious
handicap employment
determinations are handicap. Those
based on level of rated less than 50
service-connected percent service-
disability(ies) and connected have to
other criteria as meet certain
provided in 38 CFR specific percent of
21.52. service-connected
disability(ies) and
other criteria to
be determined to
have a serious
employment
handicap.
After Davenport decision, The individual's The requirements
but prior to Public Law 104- service-connected that service-
275 (claims filed from disability(ies) connected
March 30, 1995, to October need not contribute disability(ies)
8, 1996). to the impairment contribute to the
which results in employment handicap
the employment and serious
handicap. The employment handicap
issues for are removed, as are
determination are the 50 percent, 30-
the existence of 40 percent, and 10-
vocational 20 percent
impairment and the requirements for
extent or finding a serious
significance of the employment
impairment. handicap.
After Public Law 104-275 The individual's This standard was
(claims filed on or after service-connected provided under
October 9, 1996). disability(ies) Public Law 104-275.
must contribute
``in substantial
part'' to the
impairment of
employability.
------------------------------------------------------------------------
In our view, the phrase ``resulting in substantial part'' in the
statutory definitions of ``employment handicap'' and ``serious
employment handicap'' has the same meaning that ``material
contribution'' has in current Sec. 21.51(c)(2). We are proposing to
amend the regulations to reflect the statutory language. We propose to
revise Sec. Sec. 21.50 through 21.52 in light of these changes in law,
and for the additional reasons that we discuss in this preamble.
We propose to revise current Sec. 21.50 to make clear what
constitutes an initial evaluation for vocational rehabilitation and
employment benefits, who is entitled to an initial evaluation, who
conducts it, what questions it seeks to answer, and how a veteran's
service-connected disability(ies) must contribute to vocational
impairment. The initial evaluation is central to employment handicap
and serious employment handicap determinations under Sec. 21.51 and
Sec. 21.52, respectively.
We propose to further revise Sec. 21.50 by consolidating and
clarifying the factors VA develops and assesses in determining whether
an individual has an employment handicap; if so, whether the individual
has a serious employment handicap; and, lastly, whether the achievement
of a vocational goal by the individual is currently reasonably
feasible. Proposed Sec. 21.50(c) would set forth various factors for
development and assessment as part of the initial evaluation, with
minor modifications to existing provisions to improve readability.
We propose to remove the provisions of current Sec. 21.50(d)(1) as
unnecessary and obsolete, because that paragraph concerns
determinations made prior to the initial evaluation and the
determinations it refers to are no longer made by staff outside the
Vocational Rehabilitation and Employment Division.
Current Sec. 21.50(d)(2) identifies who, within VA, is responsible
for making initial evaluation determinations. We propose to remove
these provisions from Sec. 21.50 and to make appropriate references in
Sec. 21.51 and Sec. 21.52, respectively, as to who is responsible for
making each determination.
We propose to revise Sec. 21.51 to reflect criteria that VA
develops and assesses in determining the existence of an employment
handicap. Certain factors for determining that the service-connected
disability(ies) ``materially contribute'' to the impairment to
employment set forth in current Sec. 21.51(e) would be set forth in
proposed Sec. 21.51 for determining that the service-connected
disability(ies) contribute ``in substantial part'' to the impairment to
employment, as discussed above.
Current Sec. 21.52 requires that the determination of serious
employment handicap directly relate to differing levels of service-
connected disability ratings. Current Sec. 21.52 also requires a
finding of serious employment handicap if an individual is found to
have an employment handicap along with a neuropsychiatric service-
connected disability rated at 30 percent or more or any other service-
connected disability rated at 50 percent or more.
Public Law 104-275 redefined the term ``serious employment
handicap'' to make clear that the impairment to employability must meet
both of the following conditions:
It must be a significant impairment of an individual's
ability to prepare for, obtain or retain employment consistent with
abilities, aptitudes, and interests.
It must result in substantial part from service-connected
disabilities rated at 10 percent or more.
We propose to revise Sec. 21.52 to reflect the factors VA develops
and assesses in making the determination of ``significant impairment.''
These factors differ, in part, from the factors used to develop and
assess the lower level of ``impairment'' necessary for employment
handicap in Sec. 21.51, to ensure that an individual with a
significant vocational impairment receives the rehabilitation services
he or she needs.
Lastly, we propose to make a nonsubstantive change in subpart M to
Sec. 21.8032(a) by removing a reference to Sec. 21.50(b)(5) and
adding, in its place, a reference to Sec. 21.50(b)(3).
Paperwork Reduction Act of 1995
This proposed rule contains no new collections of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). The Office
of Management and Budget has approved collection of information
provisions that are related to the provisions of proposed 38 CFR 21.50
under OMB control number 2900-0009 (entitled ``Disabled Veterans
Application for Vocational Rehabilitation and 38 CFR 21.30'') and has
approved collection of information provisions that are related to the
provisions of proposed Sec. Sec. 21.50 through 21.52 under OMB control
number 2900-0092 (entitled ``Counseling Record--Personal
Information'').
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 an 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 given year. This proposed rule would
[[Page 50874]]
have no such effect on State, local, and tribal governments, or on the
private sector.
Executive Order 12866
Executive Order 12866 directs agencies to assess all 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,
and other advantages; distributive impacts; and equity). The Order
classifies a rule as a significant regulatory action requiring review
by the Office of Management and Budget if it meets any one of a number
of specified conditions, including: having an annual effect on the
economy of $100 million or more, creating a serious inconsistency or
interfering with an action of another agency, materially altering the
budgetary impact of entitlements or the rights of entitlement
recipients, or raising novel legal or policy issues. VA has examined
the economic, legal, and policy implications of this proposed rule and
has concluded that it is a significant regulatory action under
Executive Order 12866 because it raises novel policy issues.
Regulatory Flexibility Act
The Secretary hereby certifies that this proposed regulatory
amendment would 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
directly affect any small entities. Only individuals could be directly
affected. 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.
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic Assistance numbers and titles for
programs that would be affected by this proposed rule are 64.116,
Vocational Rehabilitation for Disabled Veterans, and 64.128, Vocational
Training and Rehabilitation for Vietnam Veterans' Children with Spina
Bifida or Other Covered Birth Defects.
List of Subjects in 38 CFR Part 21
Administrative practice and procedure, Armed forces, Civil rights,
Claims, Colleges and universities, Conflict of interests, Education,
Employment, Grant programs--education, Grant programs--veterans, Health
care, Loan programs--education, Loan programs--veterans, Manpower
training programs, Reporting and recordkeeping requirements, Schools,
Travel and transportation expenses, Veterans, Vocational education,
Vocational rehabilitation.
Approved: May 8, 2006.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.
For the reasons set forth in the preamble, VA proposes to amend 38
CFR part 21 (subparts A and M) as follows:
PART 21--VOCATIONAL REHABILITATION AND EDUCATION
Subpart A--Vocational Rehabilitation Under 38 U.S.C. Chapter 31
1. Revise the authority citation for part 21, subpart A to read as
follows:
Authority: 38 U.S.C. 501(a), ch. 31, and as noted in specific
sections.
2. Revise Sec. 21.50 to read as follows:
Sec. 21.50 Initial evaluation.
(a) Entitlement to an initial evaluation. VA will provide an
initial evaluation to an individual who:
(1) Applies for benefits under 38 U.S.C. chapter 31; and
(2) Meets the service-connected disability requirements of Sec.
21.40.
(Authority: 38 U.S.C. 3101(9), 3106)
(b) Determinations to be made by VA during the initial evaluation.
A counseling psychologist (CP) or vocational rehabilitation counselor
(VRC) will determine:
(1) Whether the individual has an employment handicap as determined
in accordance with this section and Sec. 21.51;
(2) Whether an individual with an employment handicap has a serious
employment handicap as determined in accordance with this section and
Sec. 21.52; and
(3) Whether the achievement of a vocational goal is currently
reasonably feasible as described in Sec. 21.53.
(Authority: 38 U.S.C. 3102, 3103)
(c) Factors for assessment as part of the initial evaluation. In
making the determinations under paragraph (b) of this section, the
following factors will be developed and assessed:
(1) The handicapping effects of the individual's service-connected
and nonservice-connected disability(ies) on employability and on
independence in daily living;
(2) The individual's physical and mental capabilities that may
affect employability and ability to function independently in daily
living activities in family and community;
(3) The impact of the individual's identified vocational
impairments on the individual's ability to prepare for, obtain, and
keep suitable employment;
(4) The individual's abilities, aptitudes, and interests;
(5) The individual's personal history and current circumstances
(including educational and training achievements, employment record,
developmental and related vocationally significant factors, and family
and community adjustment); and
(6) Other factors that may affect the individual's employability.
(Authority: 38 U.S.C. 3106(a))
(d) Need for cooperation in evaluation. The individual's
cooperation is essential during the initial evaluation. If the
individual does not cooperate, the CP or VRC will make reasonable
efforts to secure the individual's cooperation. If, despite those
efforts, the individual fails to cooperate, VA will discontinue the
initial evaluation. A redetermination of entitlement as described in
Sec. 21.58 will be made in the case of an individual whose program has
been discontinued due to failure to cooperate.
(Authority: 38 U.S.C. 3111)
3. Revise Sec. 21.51 to read as follows:
Sec. 21.51 Determining employment handicap.
For the purposes of Sec. 21.50, an employment handicap will be
found to exist only if a CP or VRC determines that the individual meets
each of the following conditions:
(a) Vocational impairment. The individual has a vocational
impairment; that is, an impairment of the ability to prepare for,
obtain, or keep employment in an occupation consistent with his or her
abilities, aptitudes, and interests.
(b) Effects of impairment not overcome. The individual has not
overcome the effects of the individual's impairment of employability
through employment in, or qualifying for employment in, an occupation
consistent with his or her abilities, aptitudes, and interests. This
situation includes an individual who qualifies for a suitable job, but
who does not obtain or keep the job for reasons beyond his or her
control.
(Authority: 38 U.S.C. 3102)
(c) Contribution of the service-connected disability(ies) to the
individual's overall vocational impairment. (1) Except as provided in
paragraph (c)(3) of this section, the service-connected disability(ies)
must contribute in substantial part to the
[[Page 50875]]
individual's overall vocational impairment. This means that the
disability(ies) must have an identifiable, measurable, or observable
causative effect on the overall vocational impairment, but need not be
the sole or primary cause of the employment handicap.
(2) When determining the individual's overall vocational
impairment, the CP or VRC will consider the factors identified in Sec.
21.50(c).
(3) For determinations made on applications for vocational
rehabilitation filed on or after March 30, 1995, but before October 9,
1996, the individual's service-connected disability(ies) need not
contribute to the individual's overall vocational impairment.
(Authority: 38 U.S.C. 3101, 3102)
4. Revise Sec. 21.52 to read as follows:
Sec. 21.52 Determining serious employment handicap.
(a) Requirements for determining serious employment handicap. For
each individual who is found to have an employment handicap, a CP or
VRC must make a separate determination of whether the individual has a
serious employment handicap. For the purposes of an initial evaluation
under Sec. 21.50, a serious employment handicap will be found to exist
only if a CP or VRC determines that the individual meets each of the
following conditions:
(1) Significant vocational impairment. The individual has a
significant vocational impairment; that is, a significant impairment of
the ability to prepare for, obtain, or keep employment in an occupation
consistent with his or her abilities, aptitudes, and interests,
considering the factors described in Sec. 21.50 and paragraph (b) of
this section.
(2) Effects of significant impairment not overcome. The individual
has not overcome the effects of the significant vocational impairment
through employment in, or qualifying for employment in, an occupation
consistent with his or her abilities, aptitudes, and interests. This
includes an individual who qualifies for a suitable job, but who does
not obtain or keep the job for reasons beyond his or her control.
(Authority: 38 U.S.C. 3102)
(3) Contribution of the service-connected disability(ies) to the
individual's overall significant vocational impairment. (i) Except as
provided in paragraph (a)(3)(ii) of this section, the service-connected
disability(ies) must contribute in substantial part to the individual's
overall significant vocational impairment. This means that the
disability(ies) must have an identifiable, measurable, or observable
causative effect on the overall significant vocational impairment, but
need not be the sole or primary cause of the serious employment
handicap.
(Authority: 38 U.S.C. 3101)
(ii) For determinations made on applications for vocational
rehabilitation filed on or after March 30, 1995, but before October 9,
1996, the individual's service-connected disability(ies) need not
contribute to the individual's overall significant vocational
impairment.
(b) Factors for assessment during the initial evaluation, when
determining whether a significant vocational impairment exists. The
combination of all restrictions and their effects on the individual
define the extent of the vocational impairment and its significance.
When determining whether the individual has a significant vocational
impairment, VA will develop and assess the following factors and their
effects:
(1) Number of disabling conditions;
(2) Severity of disabling condition(s);
(3) Existence of neuropsychiatric condition(s);
(4) Adequacy of education or training for suitable employment;
(5) Number, length, and frequency of periods of unemployment or
underemployment;
(6) A pattern of reliance on government support programs, such as
welfare, service-connected disability compensation, nonservice-
connected disability pension, worker's compensation, or Social Security
disability;
(7) Extent and complexity of services and assistance the individual
needs to achieve rehabilitation;
(8) Negative attitudes toward individuals with disabilities and
other evidence of restrictions on suitable employment, such as labor
market conditions; discrimination based on age, race, gender,
disability or other factors; alcoholism or other substance abuse; and
(9) Other factors that relate to preparing for, obtaining, or
keeping employment consistent with the individual's abilities,
aptitudes, and interests.
(Authority: 38 U.S.C. 3102, 3106)
Subpart M--Vocational Training and Rehabilitation for Certain
Children of Vietnam Veterans--Spina Bifida and Covered Birth
Defects
5. Revise the authority citation for part 21, subpart M to read as
follows:
Authority: 38 U.S.C. 101, 501, 512, 1151 note, ch. 18, 5112, and
as noted in specific sections.
Sec. 21.8032 [Amended]
6. In Sec. 21.8032, amend paragraph (a) by removing ``Sec. Sec.
21.50(b)(5)'' and adding, in its place, ``Sec. Sec. 21.50(b)(3)''.
[FR Doc. E6-14079 Filed 8-25-06; 8:45 am]
BILLING CODE 8320-01-P
