Claims Based on Aggravation of a Nonservice-Connected Disability, 52744-52747 [E6-14835]
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Federal Register / Vol. 71, No. 173 / Thursday, September 7, 2006 / Rules and Regulations
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regulations is authorized under 33 CFR
117.35.
Dated: August 28, 2006.
Gary Kassof,
Bridge Program Manager, First Coast Guard
District.
[FR Doc. E6–14834 Filed 9–6–06; 8:45 am]
BILLING CODE 4910–15–P
DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Part 3
RIN 2900–AI42
Claims Based on Aggravation of a
Nonservice-Connected Disability
Department of Veterans Affairs.
Final rule.
AGENCY:
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ACTION:
SUMMARY: The Department of Veterans
Affairs (VA) is amending its
adjudication regulations concerning
secondary service connection. This
amendment is necessary because of a
court decision that clarified the
circumstances under which a veteran
may be compensated for an increase in
the severity of an otherwise nonserviceconnected condition which is caused by
aggravation from a service-connected
condition. The intended effect of this
amendment is to conform VA
regulations to the court’s decision.
DATES: Effective Date: October 10, 2006.
FOR FURTHER INFORMATION CONTACT: Bill
Russo, Chief, Regulations Staff,
Compensation and Pension Service,
Department of Veterans Affairs, 810
Vermont Avenue, NW., Washington, DC
20420, (202) 273–7211.
SUPPLEMENTARY INFORMATION: VA
published in the Federal Register (62
FR 30547) a proposed rule to amend 38
CFR 3.310 by adding a new paragraph
to implement a decision of the United
States Court of Veterans Appeals (now
the United States Court of Appeals for
Veterans Claims) (CAVC) in the case of
Allen v. Brown, 7 Vet. App. 439 (1995),
that provided for establishing service
connection for that amount of increase
in an otherwise nonservice-connected
condition which was caused by
aggravation from a service-connected
condition (Allen aggravation). We
received comments from the Disabled
American Veterans and the Vietnam
Veterans of America, Inc. Based on the
rationale set forth in the proposed rule
and in this document, we are adopting
the provisions of the proposed rule as a
final rule with the changes indicated
below.
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One commenter expressed the
opinion that VA should establish
service connection for the entire
aggravated injury or disease, but only
pay compensation for that part of the
condition that is due to aggravation by
an already service-connected condition.
The commenter opined that 38 U.S.C.
1110 and 1131 do not allow VA to
establish service connection for part of
a condition. The same commenter stated
that it has been the policy of VA to
compensate the entire disability where
a service-connected condition and a
nonservice-connected condition affect a
single organ, body system, or function,
and the two conditions have common
symptoms that cannot be separated.
This commenter felt that the policy was
an acknowledgment by VA that the
symptoms cannot be separated to allow
proportioning the disability attributable
to each organ, body system, or function.
We do not agree with this proposed
amendment to the rule.
In Allen v. Brown, 7 Vet. App. 439
(1995), the CAVC held that 38 U.S.C.
1110 requires VA to pay compensation
for the aggravation of the nonserviceconnected disability but did not, we
believe, express a specific view on
whether VA would be required or
permitted to grant ‘‘service connection’’
for all or only part of the nonserviceconnected disease. Section 1110 does
not directly speak to awards of ‘‘service
connection,’’ but merely authorizes
compensation for ‘‘disability,’’ which
the CAVC in Allen construed to mean
‘‘impairment of earning capacity.’’
Section 1110 further requires that the
disability have been caused by an injury
or disease incurred or aggravated in
service. This is consistent with the
proposed rule, which requires that the
‘‘disability’’ (the increased severity of
the nonservice-connected condition)
must be caused by a service-connected
injury or disease. Accordingly, section
1110 does not support the commenter’s
position. In its holding in Tobin v.
Derwinski, 2 Vet. App. 34 (1991), the
CAVC apparently interpreted 38 CFR
3.310 to require VA to grant ‘‘service
connection’’ for the portion of the
nonservice-connected disability
attributable to aggravation by the
service-connected condition. Thus,
when read in tandem, the CAVC’s
rulings require VA to service connect
the degree of aggravation of a
nonservice-connected condition by a
service-connected disability and to pay
compensation for that level of disability
attributable to such aggravation.
Although § 3.310 reasonably provides
that any disability proximately caused
by a service-connected disease will be
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considered part of the service-connected
condition, for purposes of authorizing
service connection and compensation,
there is no clear basis for awarding
service connection for the entire
nonservice-connected condition,
including aspects of that condition that
are not attributable to a serviceconnected condition.
Although 38 U.S.C. 1110 neither uses
nor defines the term ‘‘serviceconnected,’’ that term is defined in 38
U.S.C. 101(16) to mean, in pertinent
part, that a ‘‘disability was incurred or
aggravated * * * in line of duty in the
active military, naval, or air service.’’
Nothing in that definition requires or
authorizes VA to grant service
connection for the entirety of a disease
or injury that was not incurred or
aggravated in service.
Both commenters expressed concerns
about the difficulties in establishing the
degree of aggravation that is to be
compensated. However, VA believes
that, if medical evidence is adequately
developed, computation of the degree of
aggravation should be attainable. The
degree of aggravation would be assessed
based upon the objective medical
evidence of record.
Both commenters objected to the
proposed rule’s requirement of ‘‘medical
evidence extant before the aggravation
sufficient to establish the preaggravation severity of the disability.’’
They suggested that a current medical
opinion should be sufficient to establish
the fact of aggravation.
Aggravation is a comparative term
meaning that a disability has worsened
from one level of severity to another. In
order to establish the degree to which
aggravation has occurred, it is necessary
to compare the current level of severity
to a prior level of severity. In cases of
disabilities which pre-existed service, in
standard aggravation claims under 38
U.S.C. 1153, the pre-service level of
severity is generally established by a
service entrance examination. If no
disabilities are noted on that
examination, the veteran is presumed to
have been in sound condition when he
or she entered service. If disabilities are
noted on the entrance examination, the
examiner should include sufficient
findings to permit a determination of
the degree of disability. If the findings
indicate severe disability, the person
would not be allowed on active duty. If
the findings indicate mild to moderate
disability, an assessment of fitness for
duty would be made. If the person were
allowed on active duty, there should be
sufficient findings for a later assessment
of the pre-service level of disability,
which would be deducted from the
post-service level of disability in a
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standard aggravation claim. It is the
Government’s responsibility to conduct
the entrance examination and to create
and maintain a record of that
examination. If the Government fails to
conduct the examination or fails to
provide sufficient findings for assessing
the level of pre-service disability, or if
the record of the examination is lost or
destroyed, that should not operate to the
disadvantage of the veteran. That is the
reason for the language in 38 CFR 3.322
and 4.22, which requires deduction of
the pre-service level of disability from
the current level of disability only if the
pre-service level of disability is
‘‘ascertainable.’’
The requirement for proof of baseline
disability is much different in an Allen
aggravation case. The threshold
requirement for entitlement under
§ 3.310(a) is evidence demonstrating an
increase in disability of a nonserviceconnected disability that is proximately
due to or the result of service. Thus,
evidence of baseline disability is first
necessary to establish entitlement to
service connection. Plainly stated, such
evidence of aggravation would
necessarily include some demonstration
of baseline disability in order to show
an increase in severity. Once
entitlement has been established, such
evidence would also be necessary for
purposes of determining the level of
compensation. In so doing, the veteran
would demonstrate that the nonserviceconnected disability has increased in
severity because of aggravation from a
service-connected condition. Unlike the
standard aggravation claim pursuant to
38 U.S.C. 1153 where the baseline level
of severity (referred to in the text of the
proposed rule as ‘‘the pre-aggravation
severity’’) is based on an entrance
examination, there is no Government
responsibility to create and maintain
medical records on nonserviceconnected conditions for purposes of
determining the baseline level of
severity in Allen aggravation claims.
The veteran must ‘‘support’’ the claim
with medical evidence of the baseline
level of severity of a nonserviceconnected condition which can then be
compared to the current level of severity
to establish the fact of aggravation and
the degree of disability for which the
veteran will be compensated.
One commenter stated it would be
unreasonable for VA to require proof of
a baseline level of disability as a
condition for granting service
connection for aggravation. To illustrate,
the commenter suggested that if a
physician opined that a serviceconnected condition aggravated a
nonservice-connected condition, VA
would be required to concede
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aggravation, in the absence of any
contrary evidence, even if there were no
evidence of a baseline level of preaggravation disability.
This comment is premised upon the
incorrect assumption that there is
necessarily a difference under Allen
between the issue of service connection
and the degree of disability. As
indicated, the evidence of baseline
disability satisfies the initial
requirement of additional disability
necessary to establish entitlement, but
also is necessary to demonstrate the
level of disability due to aggravation.
Because we cannot service connect the
entire nonservice-connected condition,
only the degree of disability resulting
from aggravation may be service
connected. Therefore, evidence
concerning the degree of disability is
essential to establish service connection
in Allen aggravation claims and it is
reasonable for VA to require claimant’s
to submit proof of a baseline disability
level. Such a requirement is in
accordance with VA’s authority under
38 U.S.C. 501 to specify the types of
proof that are necessary to establish a
benefit.
Finally, in the example suggested by
the commenter, if a physician
determines that a service-connected
condition has aggravated a nonserviceconnected condition, it is reasonable to
expect that that medical opinion would
be based on evidence of the baseline
and the current level of disability of the
nonservice-connected condition. Thus,
the requirement to provide proof of a
baseline level of disability is not as
onerous as contemplated and suggested
by this commenter.
We have, however, reconsidered the
requirement of ‘‘medical evidence
extant before the aggravation’’ to
establish the baseline level of severity
when computing the degree of
aggravation. It could be difficult for
some claimants to identify the date of
onset of the aggravation and then to
locate medical evidence created before
that date to establish the baseline. Thus,
limiting the medical evidence for
baseline calculation to that which
existed prior to the onset of aggravation
could likely result in unfavorable
decisions in several claims. Obviously,
if such records were available, they
would establish the lowest baseline
level of severity and, hence, the greatest
degree of aggravation when compared to
the current level of severity. However,
since aggravation is generally an
ongoing process, medical evidence
establishing the aggravation could be
created at any time between the onset of
aggravation and the date of the current
claim. VA’s acceptance of medical
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evidence created at any time between
the onset of aggravation and the date of
the current claim for purposes of
establishing the baseline level of
severity would be more favorable to
claimants, although claims granted in
this regard would likely result in
findings of smaller degrees of
aggravation and less compensation. We
are, therefore, amending the proposed
rule to allow the acceptance, for
baseline purposes, of medical evidence
created at any time between the onset of
aggravation and the receipt of medical
evidence establishing the current level
of severity. The earlier medical evidence
will establish the baseline level of
severity for comparison with the current
level of severity to determine the degree
of aggravation that may be serviceconnected and compensated. For
example, if the onset of aggravation was
sometime in 1996, but the veteran can
only produce medical evidence from
1999, the 1999 medical evidence would
be accepted for purposes of establishing
the baseline level of severity. The rule
will also state that VA will also accept,
for baseline purposes, medical evidence
created before the onset of aggravation.
One commenter suggested that the
provisions of 38 CFR 3.322 with regard
to in-service aggravation of pre-service
disabilities should have equal
application in Allen aggravation claims.
Specifically, § 3.322 provides that no
deduction for the pre-service level of
disability may be made unless that preservice level is ‘‘ascertainable.’’ It also
provides that no deduction is to be
made if the aggravated disability
becomes totally disabling. We do not
agree with this suggestion. As
mentioned earlier, when a pre-service
level of disability is not ascertainable,
the Government has failed to discharge
its responsibility to conduct, and/or
maintain a record of, an adequate
entrance examination. That failure
should not be allowed to disadvantage
the veteran in any way. In Allen
aggravation claims the Government has
no such responsibility. The
responsibility for establishing a baseline
level of disability in such claims rests
with the veteran. If no baseline can be
established, no aggravation can be
demonstrated, and the deduction issue
would be moot.
With respect to the provision
concerning no deduction when the
aggravated disability is totally disabling,
we believe such action is prohibited by
the Allen decision itself. There the
Court stated with parenthetical
emphasis that ‘‘such veteran shall be
compensated for the degree of disability
(but only that degree) over and above
the degree of disability existing prior to
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the aggravation.’’ Based on that language
it is clear that only the incremental
increase in disability is to be
compensated. To hold otherwise could
lead to absurd results. For example, if,
20 years after service, a Vietnam veteran
developed a nonservice-connected
psychosis which was 70 percent
disabling but also had a serviceconnected disability that aggravated the
psychosis causing it to be totally
disabling, then the application of 38
CFR 3.322 would require payment of
compensation at the 100 percent rate for
a 70 percent nonservice-connected
condition, when the aggravated
percentage is 30 percent. Such a result
could not have been intended by the
Allen court, and we decline to apply
§ 3.322 to Allen aggravation claims in
the manner suggested.
Both commenters suggested that it
would be difficult, if not impossible, for
VA to determine, for deduction
purposes, the degree of increase in a
nonservice-connected condition that is
attributable to ‘‘the normal progression
of the disability’’ and that perhaps that
provision in the proposed rule should
just be deleted on the basis of workload
considerations. While we agree that it
could be difficult to establish the degree
of increased disability due to ‘‘normal
progression,’’ that does not relieve VA
of the responsibility to consider such
evidence if it exists. In Allen
aggravation claims VA can only pay
compensation for the increased
disability attributable to aggravation
from a service-connected condition.
Any increase attributable to other causes
is beyond the scope of Allen and may
not be compensated unless specifically
authorized by statute. While
authoritative medical evidence on the
degree of increase due to ‘‘normal
progression’’ of a disease is rare, if it
exists in an individual case, VA cannot
ignore it and cannot adopt the
suggestion to delete this provision in the
proposed rule.
However, in analyzing and
responding to the above suggestion, we
noted that the proposed rule uses
language different from that found in 38
U.S.C. 1153 and 38 CFR 3.306. The
proposed rule uses the phrase ‘‘normal
progression of the disability’’ whereas
the cited statute and regulation dealing
with aggravation use the phrase ‘‘natural
progress of the disease.’’ Although the
choice of words in the proposed rule is
slightly different from the statutory
phrasing, no change in meaning was
intended. For purposes of clarity,
however, we will incorporate the
statutory phrasing in the first and last
sentences of 3.310(b). The proposed rule
also uses the term ‘‘disability’’ to mean
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‘‘disease or injury’’, in four other
instances. The term ‘‘disability’’ is used
in 38 U.S.C. 1153 and 38 CFR 3.306 to
mean the level of disability, rather than
the disease or injury itself. To avoid any
possible confusion about our intent (to
refer to the disease or injury), we believe
it will provide greater clarity to use the
term ‘‘disease or injury’’ instead of
disability in 3.310(b). We are also
changing ‘‘rather than’’ to ‘‘and not due
to’’ to provide a more parallel structure
for the first sentence of 3.310(b).
One commenter urged VA to include
in this regulation some directions to
field personnel on how to evaluate the
‘‘natural progress’’ of a disease
including the effects of such variables as
race, age, gender and geographic
location on such ‘‘progress.’’ The
commenter also opined that VA was
incapable of providing adequate
directions on this subject.
We do not believe that special
instructions for evaluating ‘‘natural
progress’’ are necessary. Any evidence
of ‘‘natural progress’’ of a disease would
be in the form of medical evidence.
Since our field personnel are already
charged with assessing the credibility
and weight of such evidence with regard
to other issues in a claim, it would not
be appropriate to have a separate set of
instructions for assessing the credibility
and weight of medical evidence relating
to ‘‘natural progress’’ of a disease. The
variables mentioned by the commenter
would be considered by the medical
professional who was providing the
evidence of ‘‘natural progress.’’
Therefore, no changes in the proposed
rule are warranted based on this
comment.
One commenter noted that VA has
taken a pro-veteran approach to
allowing a veteran to claim the aggregate
disability caused by a service-connected
and nonservice-connected condition,
demonstrated by § 4.127, which
provides that a veteran with a mental
retardation or a personality disorder
may also have a mental disorder that
may be service-connected. Section 4.127
states that a veteran may have coexisting mental disorders, one serviceconnectable and the other congenital or
developmental, and that the serviceconnectable disorder should not be
overlooked because of the congenital or
developmental disorder. Nothing in
§ 4.127 provides for granting service
connection for the co-existing mental
retardation or personality disorder.
While VA will compensate
overlapping symptoms as if the
overlapping symptoms were all due to
the effects of the service-connected
condition, we do this in specific
situations where it is impossible for a
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medical examiner to distinguish which
symptoms are due to the serviceconnected disability and which are due
to the nonservice-connected disability,
such as where two separate disabilities
share common symptoms. Where
various symptoms affecting a single
body part or system can be separated
into those attributable to the serviceconnected disability and those
attributable to the nonservice-connected
disability, VA evaluates for
compensation only those symptoms
attributable to the service-connected
disability.
While VA agrees that the provision
referred to by the commenter is proveteran, it does not stand for the
proposition that VA grants service
connection for conditions not related to
military service. No changes are
warranted based on this comment.
One commenter also referenced the
principle codified in 38 U.S.C. 1160 and
38 CFR 3.383, which provide for special
consideration when a specified degree
of disability is service-connected in
certain organs or extremities and there
is a nonservice-connected disability
affecting the corresponding paired organ
or extremity. In this situation, VA is
authorized to pay disability
compensation as if the combination of
disabilities in those paired organs or
extremities were service-connected. The
commenter expressed the opinion that
this demonstrates that VA will grant
service connection for a nonserviceconnected disability.
Section 3.383 does not authorize a
grant of service connection for the
disability affecting the nonserviceconnected paired organ or extremity.
Rather, the disability of the nonserviceconnected paired organ or extremity
remains nonservice-connected but is
compensated as if it was serviceconnected. Further, section 3.383
merely reiterates statutory provisions in
38 U.S.C. 1160 and in no way suggests
that VA has general authority to grant
service connection for nonserviceconnected conditions. Thus, this
comment is not directly relevant to the
subject of the proposed rule. We make
no changes based on this comment.
One commenter opined that the
determinations of the level of disability
must be made by medical personnel and
not Rating Veterans Service
Representatives. This commenter urged
VA to include in the Adjudication
Manual a provision stating this.
We make no changes based on this
suggestion. While the Adjudication
Manual may need to be amended to
reflect the procedures necessary to
implement this regulatory change, the
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Federal Register / Vol. 71, No. 173 / Thursday, September 7, 2006 / Rules and Regulations
suggestion itself is beyond the scope of
this rulemaking.
Based on our review of the proposed
amendment, we are making a minor
change in wording. In the first sentence
of new paragraph (b), we are changing
‘‘shall’’ to ‘‘will’’ to reflect VA’s current
efforts to write regulations in plain
language.
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 final rule and has concluded that
it is a significant regulatory action under
Executive Order 12866 because it
materially alters the rights of
entitlement recipients based upon a
court decision.
Paperwork Reduction Act
This document contains no provisions
constituting a collection of information
under the Paperwork Reduction Act (44
U.S.C. 3501–3521).
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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 rule would have no
such effect on State, local, and tribal
governments, or on the private sector.
Regulatory Flexibility Act
The Secretary hereby certifies that
this 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. The
reason for this certification is that these
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amendments would not directly affect
any small entities. Only VA
beneficiaries and their survivors could
be directly affected. Therefore, pursuant
to 5 U.S.C. 605(b), these amendments
are 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 program numbers are 64.109,
Veterans Compensation for ServiceConnected Disability, and 64.110,
Veterans Dependency and Indemnity
Compensation for Service-Connected
Death.
52747
evidence created before the onset of
aggravation or by the earliest medical
evidence created at any time between
the onset of aggravation and the receipt
of medical evidence establishing the
current level of severity of the
nonservice-connected disease or injury.
The rating activity will determine the
baseline and current levels of severity
under the Schedule for Rating
Disabilities (38 CFR part 4) and
determine the extent of aggravation by
deducting the baseline level of severity,
as well as any increase in severity due
to the natural progress of the disease,
from the current level.
(Authority: 38 U.S.C. 1110 and 1131)
List of Subjects in 38 CFR Part 3
Administrative practice and
procedure, Claims, Disability benefits,
Health care, Pensions, Radioactive
materials, Veterans, Vietnam.
*
Approved: May 26, 2006.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.
FEDERAL COMMUNICATIONS
COMMISSION
Editorial Note: This document was
received at the Office of the Federal Register
on September 1, 2006.
[WT Docket 01–90; ET Docket 98–95; RM–
9096; FCC 06–110]
For the reasons set forth in the
preamble, VA is amending 38 CFR part
3 as set forth below:
Amendment of the Commission’s
Rules Regarding Dedicated ShortRange Communications Services in
the 5.850–5.925 GHz (5.9 GHz Band)
I
PART 3—ADJUDICATION
1. The authority citation for part 3,
subpart A, continues to read as follows:
I
Authority: 38 U.S.C. 501(a), unless
otherwise noted.
2. Section 3.310 is amended by
revising the section heading; by
redesignating paragraph (b) as paragraph
(c); and by adding a new paragraph (b)
to read as follows:
I
§ 3.310 Disabilities that are proximately
due to, or aggravated by, service-connected
disease or injury.
*
*
*
*
(b) Aggravation of nonserviceconnected disabilities. Any increase in
severity of a nonservice-connected
disease or injury that is proximately due
to or the result of a service-connected
disease or injury, and not due to the
natural progress of the nonserviceconnected disease, will be service
connected. However, VA will not
concede that a nonservice-connected
disease or injury was aggravated by a
service-connected disease or injury
unless the baseline level of severity of
the nonservice-connected disease or
injury is established by medical
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*
*
*
BILLING CODE 8320–01–P
47 CFR Parts 1, 90 and 95
Federal Communications
Commission.
ACTION: Final rule.
AGENCY:
Subpart A—Pension, Compensation,
and Dependency and Indemnity
Compensation
*
*
[FR Doc. E6–14835 Filed 9–6–06; 8:45 am]
SUMMARY: In this document the
Commission takes certain actions in
response to four petitions for
reconsideration filed by 3M Company,
ARINC Incorporated, Intelligent
Transportation Society of America and
John Hopkins University of Applied
Physics Laboratory. Each petitioner
seeks reconsideration of the
Commission’s Report and Order, which
adopted licensing and service rules for
the Dedicated Short Range
Communications (DSRC) Service in the
Intelligent Transportation Systems (ITS)
Radio Service, located in the 5.850–
5.925 GHz band (5.9 GHz band)
licensing and service rules for the
Dedicated Short Range Communications
(DSRC) Service in the Intelligent
Transportation Systems (ITS) Radio
Service located in the 5.850–5.925 GHz
band (5.9 GHz band).
DATES: Effective November 6, 2006.
FOR FURTHER INFORMATION CONTACT:
Technical Information: Tim Maguire,
Tim.Maguire@FCC.gov, Public Safety
and Critical Infrastructure Division,
Wireless Telecommunications Bureau,
(202) 418–0680, or TTY (202) 418–7233.
Legal Information: Jeannie Benfaida,
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Agencies
[Federal Register Volume 71, Number 173 (Thursday, September 7, 2006)]
[Rules and Regulations]
[Pages 52744-52747]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-14835]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AI42
Claims Based on Aggravation of a Nonservice-Connected Disability
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: The Department of Veterans Affairs (VA) is amending its
adjudication regulations concerning secondary service connection. This
amendment is necessary because of a court decision that clarified the
circumstances under which a veteran may be compensated for an increase
in the severity of an otherwise nonservice-connected condition which is
caused by aggravation from a service-connected condition. The intended
effect of this amendment is to conform VA regulations to the court's
decision.
DATES: Effective Date: October 10, 2006.
FOR FURTHER INFORMATION CONTACT: Bill Russo, Chief, Regulations Staff,
Compensation and Pension Service, Department of Veterans Affairs, 810
Vermont Avenue, NW., Washington, DC 20420, (202) 273-7211.
SUPPLEMENTARY INFORMATION: VA published in the Federal Register (62 FR
30547) a proposed rule to amend 38 CFR 3.310 by adding a new paragraph
to implement a decision of the United States Court of Veterans Appeals
(now the United States Court of Appeals for Veterans Claims) (CAVC) in
the case of Allen v. Brown, 7 Vet. App. 439 (1995), that provided for
establishing service connection for that amount of increase in an
otherwise nonservice-connected condition which was caused by
aggravation from a service-connected condition (Allen aggravation). We
received comments from the Disabled American Veterans and the Vietnam
Veterans of America, Inc. Based on the rationale set forth in the
proposed rule and in this document, we are adopting the provisions of
the proposed rule as a final rule with the changes indicated below.
One commenter expressed the opinion that VA should establish
service connection for the entire aggravated injury or disease, but
only pay compensation for that part of the condition that is due to
aggravation by an already service-connected condition. The commenter
opined that 38 U.S.C. 1110 and 1131 do not allow VA to establish
service connection for part of a condition. The same commenter stated
that it has been the policy of VA to compensate the entire disability
where a service-connected condition and a nonservice-connected
condition affect a single organ, body system, or function, and the two
conditions have common symptoms that cannot be separated. This
commenter felt that the policy was an acknowledgment by VA that the
symptoms cannot be separated to allow proportioning the disability
attributable to each organ, body system, or function. We do not agree
with this proposed amendment to the rule.
In Allen v. Brown, 7 Vet. App. 439 (1995), the CAVC held that 38
U.S.C. 1110 requires VA to pay compensation for the aggravation of the
nonservice-connected disability but did not, we believe, express a
specific view on whether VA would be required or permitted to grant
``service connection'' for all or only part of the nonservice-connected
disease. Section 1110 does not directly speak to awards of ``service
connection,'' but merely authorizes compensation for ``disability,''
which the CAVC in Allen construed to mean ``impairment of earning
capacity.'' Section 1110 further requires that the disability have been
caused by an injury or disease incurred or aggravated in service. This
is consistent with the proposed rule, which requires that the
``disability'' (the increased severity of the nonservice-connected
condition) must be caused by a service-connected injury or disease.
Accordingly, section 1110 does not support the commenter's position. In
its holding in Tobin v. Derwinski, 2 Vet. App. 34 (1991), the CAVC
apparently interpreted 38 CFR 3.310 to require VA to grant ``service
connection'' for the portion of the nonservice-connected disability
attributable to aggravation by the service-connected condition. Thus,
when read in tandem, the CAVC's rulings require VA to service connect
the degree of aggravation of a nonservice-connected condition by a
service-connected disability and to pay compensation for that level of
disability attributable to such aggravation. Although Sec. 3.310
reasonably provides that any disability proximately caused by a
service-connected disease will be considered part of the service-
connected condition, for purposes of authorizing service connection and
compensation, there is no clear basis for awarding service connection
for the entire nonservice-connected condition, including aspects of
that condition that are not attributable to a service-connected
condition.
Although 38 U.S.C. 1110 neither uses nor defines the term
``service-connected,'' that term is defined in 38 U.S.C. 101(16) to
mean, in pertinent part, that a ``disability was incurred or aggravated
* * * in line of duty in the active military, naval, or air service.''
Nothing in that definition requires or authorizes VA to grant service
connection for the entirety of a disease or injury that was not
incurred or aggravated in service.
Both commenters expressed concerns about the difficulties in
establishing the degree of aggravation that is to be compensated.
However, VA believes that, if medical evidence is adequately developed,
computation of the degree of aggravation should be attainable. The
degree of aggravation would be assessed based upon the objective
medical evidence of record.
Both commenters objected to the proposed rule's requirement of
``medical evidence extant before the aggravation sufficient to
establish the pre-aggravation severity of the disability.'' They
suggested that a current medical opinion should be sufficient to
establish the fact of aggravation.
Aggravation is a comparative term meaning that a disability has
worsened from one level of severity to another. In order to establish
the degree to which aggravation has occurred, it is necessary to
compare the current level of severity to a prior level of severity. In
cases of disabilities which pre-existed service, in standard
aggravation claims under 38 U.S.C. 1153, the pre-service level of
severity is generally established by a service entrance examination. If
no disabilities are noted on that examination, the veteran is presumed
to have been in sound condition when he or she entered service. If
disabilities are noted on the entrance examination, the examiner should
include sufficient findings to permit a determination of the degree of
disability. If the findings indicate severe disability, the person
would not be allowed on active duty. If the findings indicate mild to
moderate disability, an assessment of fitness for duty would be made.
If the person were allowed on active duty, there should be sufficient
findings for a later assessment of the pre-service level of disability,
which would be deducted from the post-service level of disability in a
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standard aggravation claim. It is the Government's responsibility to
conduct the entrance examination and to create and maintain a record of
that examination. If the Government fails to conduct the examination or
fails to provide sufficient findings for assessing the level of pre-
service disability, or if the record of the examination is lost or
destroyed, that should not operate to the disadvantage of the veteran.
That is the reason for the language in 38 CFR 3.322 and 4.22, which
requires deduction of the pre-service level of disability from the
current level of disability only if the pre-service level of disability
is ``ascertainable.''
The requirement for proof of baseline disability is much different
in an Allen aggravation case. The threshold requirement for entitlement
under Sec. 3.310(a) is evidence demonstrating an increase in
disability of a nonservice-connected disability that is proximately due
to or the result of service. Thus, evidence of baseline disability is
first necessary to establish entitlement to service connection. Plainly
stated, such evidence of aggravation would necessarily include some
demonstration of baseline disability in order to show an increase in
severity. Once entitlement has been established, such evidence would
also be necessary for purposes of determining the level of
compensation. In so doing, the veteran would demonstrate that the
nonservice-connected disability has increased in severity because of
aggravation from a service-connected condition. Unlike the standard
aggravation claim pursuant to 38 U.S.C. 1153 where the baseline level
of severity (referred to in the text of the proposed rule as ``the pre-
aggravation severity'') is based on an entrance examination, there is
no Government responsibility to create and maintain medical records on
nonservice-connected conditions for purposes of determining the
baseline level of severity in Allen aggravation claims. The veteran
must ``support'' the claim with medical evidence of the baseline level
of severity of a nonservice-connected condition which can then be
compared to the current level of severity to establish the fact of
aggravation and the degree of disability for which the veteran will be
compensated.
One commenter stated it would be unreasonable for VA to require
proof of a baseline level of disability as a condition for granting
service connection for aggravation. To illustrate, the commenter
suggested that if a physician opined that a service-connected condition
aggravated a nonservice-connected condition, VA would be required to
concede aggravation, in the absence of any contrary evidence, even if
there were no evidence of a baseline level of pre-aggravation
disability.
This comment is premised upon the incorrect assumption that there
is necessarily a difference under Allen between the issue of service
connection and the degree of disability. As indicated, the evidence of
baseline disability satisfies the initial requirement of additional
disability necessary to establish entitlement, but also is necessary to
demonstrate the level of disability due to aggravation. Because we
cannot service connect the entire nonservice-connected condition, only
the degree of disability resulting from aggravation may be service
connected. Therefore, evidence concerning the degree of disability is
essential to establish service connection in Allen aggravation claims
and it is reasonable for VA to require claimant's to submit proof of a
baseline disability level. Such a requirement is in accordance with
VA's authority under 38 U.S.C. 501 to specify the types of proof that
are necessary to establish a benefit.
Finally, in the example suggested by the commenter, if a physician
determines that a service-connected condition has aggravated a
nonservice-connected condition, it is reasonable to expect that that
medical opinion would be based on evidence of the baseline and the
current level of disability of the nonservice-connected condition.
Thus, the requirement to provide proof of a baseline level of
disability is not as onerous as contemplated and suggested by this
commenter.
We have, however, reconsidered the requirement of ``medical
evidence extant before the aggravation'' to establish the baseline
level of severity when computing the degree of aggravation. It could be
difficult for some claimants to identify the date of onset of the
aggravation and then to locate medical evidence created before that
date to establish the baseline. Thus, limiting the medical evidence for
baseline calculation to that which existed prior to the onset of
aggravation could likely result in unfavorable decisions in several
claims. Obviously, if such records were available, they would establish
the lowest baseline level of severity and, hence, the greatest degree
of aggravation when compared to the current level of severity. However,
since aggravation is generally an ongoing process, medical evidence
establishing the aggravation could be created at any time between the
onset of aggravation and the date of the current claim. VA's acceptance
of medical evidence created at any time between the onset of
aggravation and the date of the current claim for purposes of
establishing the baseline level of severity would be more favorable to
claimants, although claims granted in this regard would likely result
in findings of smaller degrees of aggravation and less compensation. We
are, therefore, amending the proposed rule to allow the acceptance, for
baseline purposes, of medical evidence created at any time between the
onset of aggravation and the receipt of medical evidence establishing
the current level of severity. The earlier medical evidence will
establish the baseline level of severity for comparison with the
current level of severity to determine the degree of aggravation that
may be service-connected and compensated. For example, if the onset of
aggravation was sometime in 1996, but the veteran can only produce
medical evidence from 1999, the 1999 medical evidence would be accepted
for purposes of establishing the baseline level of severity. The rule
will also state that VA will also accept, for baseline purposes,
medical evidence created before the onset of aggravation.
One commenter suggested that the provisions of 38 CFR 3.322 with
regard to in-service aggravation of pre-service disabilities should
have equal application in Allen aggravation claims. Specifically, Sec.
3.322 provides that no deduction for the pre-service level of
disability may be made unless that pre-service level is
``ascertainable.'' It also provides that no deduction is to be made if
the aggravated disability becomes totally disabling. We do not agree
with this suggestion. As mentioned earlier, when a pre-service level of
disability is not ascertainable, the Government has failed to discharge
its responsibility to conduct, and/or maintain a record of, an adequate
entrance examination. That failure should not be allowed to
disadvantage the veteran in any way. In Allen aggravation claims the
Government has no such responsibility. The responsibility for
establishing a baseline level of disability in such claims rests with
the veteran. If no baseline can be established, no aggravation can be
demonstrated, and the deduction issue would be moot.
With respect to the provision concerning no deduction when the
aggravated disability is totally disabling, we believe such action is
prohibited by the Allen decision itself. There the Court stated with
parenthetical emphasis that ``such veteran shall be compensated for the
degree of disability (but only that degree) over and above the degree
of disability existing prior to
[[Page 52746]]
the aggravation.'' Based on that language it is clear that only the
incremental increase in disability is to be compensated. To hold
otherwise could lead to absurd results. For example, if, 20 years after
service, a Vietnam veteran developed a nonservice-connected psychosis
which was 70 percent disabling but also had a service-connected
disability that aggravated the psychosis causing it to be totally
disabling, then the application of 38 CFR 3.322 would require payment
of compensation at the 100 percent rate for a 70 percent nonservice-
connected condition, when the aggravated percentage is 30 percent. Such
a result could not have been intended by the Allen court, and we
decline to apply Sec. 3.322 to Allen aggravation claims in the manner
suggested.
Both commenters suggested that it would be difficult, if not
impossible, for VA to determine, for deduction purposes, the degree of
increase in a nonservice-connected condition that is attributable to
``the normal progression of the disability'' and that perhaps that
provision in the proposed rule should just be deleted on the basis of
workload considerations. While we agree that it could be difficult to
establish the degree of increased disability due to ``normal
progression,'' that does not relieve VA of the responsibility to
consider such evidence if it exists. In Allen aggravation claims VA can
only pay compensation for the increased disability attributable to
aggravation from a service-connected condition. Any increase
attributable to other causes is beyond the scope of Allen and may not
be compensated unless specifically authorized by statute. While
authoritative medical evidence on the degree of increase due to
``normal progression'' of a disease is rare, if it exists in an
individual case, VA cannot ignore it and cannot adopt the suggestion to
delete this provision in the proposed rule.
However, in analyzing and responding to the above suggestion, we
noted that the proposed rule uses language different from that found in
38 U.S.C. 1153 and 38 CFR 3.306. The proposed rule uses the phrase
``normal progression of the disability'' whereas the cited statute and
regulation dealing with aggravation use the phrase ``natural progress
of the disease.'' Although the choice of words in the proposed rule is
slightly different from the statutory phrasing, no change in meaning
was intended. For purposes of clarity, however, we will incorporate the
statutory phrasing in the first and last sentences of 3.310(b). The
proposed rule also uses the term ``disability'' to mean ``disease or
injury'', in four other instances. The term ``disability'' is used in
38 U.S.C. 1153 and 38 CFR 3.306 to mean the level of disability, rather
than the disease or injury itself. To avoid any possible confusion
about our intent (to refer to the disease or injury), we believe it
will provide greater clarity to use the term ``disease or injury''
instead of disability in 3.310(b). We are also changing ``rather than''
to ``and not due to'' to provide a more parallel structure for the
first sentence of 3.310(b).
One commenter urged VA to include in this regulation some
directions to field personnel on how to evaluate the ``natural
progress'' of a disease including the effects of such variables as
race, age, gender and geographic location on such ``progress.'' The
commenter also opined that VA was incapable of providing adequate
directions on this subject.
We do not believe that special instructions for evaluating
``natural progress'' are necessary. Any evidence of ``natural
progress'' of a disease would be in the form of medical evidence. Since
our field personnel are already charged with assessing the credibility
and weight of such evidence with regard to other issues in a claim, it
would not be appropriate to have a separate set of instructions for
assessing the credibility and weight of medical evidence relating to
``natural progress'' of a disease. The variables mentioned by the
commenter would be considered by the medical professional who was
providing the evidence of ``natural progress.'' Therefore, no changes
in the proposed rule are warranted based on this comment.
One commenter noted that VA has taken a pro-veteran approach to
allowing a veteran to claim the aggregate disability caused by a
service-connected and nonservice-connected condition, demonstrated by
Sec. 4.127, which provides that a veteran with a mental retardation or
a personality disorder may also have a mental disorder that may be
service-connected. Section 4.127 states that a veteran may have co-
existing mental disorders, one service-connectable and the other
congenital or developmental, and that the service-connectable disorder
should not be overlooked because of the congenital or developmental
disorder. Nothing in Sec. 4.127 provides for granting service
connection for the co-existing mental retardation or personality
disorder.
While VA will compensate overlapping symptoms as if the overlapping
symptoms were all due to the effects of the service-connected
condition, we do this in specific situations where it is impossible for
a medical examiner to distinguish which symptoms are due to the
service-connected disability and which are due to the nonservice-
connected disability, such as where two separate disabilities share
common symptoms. Where various symptoms affecting a single body part or
system can be separated into those attributable to the service-
connected disability and those attributable to the nonservice-connected
disability, VA evaluates for compensation only those symptoms
attributable to the service-connected disability.
While VA agrees that the provision referred to by the commenter is
pro-veteran, it does not stand for the proposition that VA grants
service connection for conditions not related to military service. No
changes are warranted based on this comment.
One commenter also referenced the principle codified in 38 U.S.C.
1160 and 38 CFR 3.383, which provide for special consideration when a
specified degree of disability is service-connected in certain organs
or extremities and there is a nonservice-connected disability affecting
the corresponding paired organ or extremity. In this situation, VA is
authorized to pay disability compensation as if the combination of
disabilities in those paired organs or extremities were service-
connected. The commenter expressed the opinion that this demonstrates
that VA will grant service connection for a nonservice-connected
disability.
Section 3.383 does not authorize a grant of service connection for
the disability affecting the nonservice-connected paired organ or
extremity. Rather, the disability of the nonservice-connected paired
organ or extremity remains nonservice-connected but is compensated as
if it was service-connected. Further, section 3.383 merely reiterates
statutory provisions in 38 U.S.C. 1160 and in no way suggests that VA
has general authority to grant service connection for nonservice-
connected conditions. Thus, this comment is not directly relevant to
the subject of the proposed rule. We make no changes based on this
comment.
One commenter opined that the determinations of the level of
disability must be made by medical personnel and not Rating Veterans
Service Representatives. This commenter urged VA to include in the
Adjudication Manual a provision stating this.
We make no changes based on this suggestion. While the Adjudication
Manual may need to be amended to reflect the procedures necessary to
implement this regulatory change, the
[[Page 52747]]
suggestion itself is beyond the scope of this rulemaking.
Based on our review of the proposed amendment, we are making a
minor change in wording. In the first sentence of new paragraph (b), we
are changing ``shall'' to ``will'' to reflect VA's current efforts to
write regulations in plain language.
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 final rule and has
concluded that it is a significant regulatory action under Executive
Order 12866 because it materially alters the rights of entitlement
recipients based upon a court decision.
Paperwork Reduction Act
This document contains no provisions constituting a collection of
information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).
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 rule would have no such effect on
State, local, and tribal governments, or on the private sector.
Regulatory Flexibility Act
The Secretary hereby certifies that this 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. The reason for this certification is that these
amendments would not directly affect any small entities. Only VA
beneficiaries and their survivors could be directly affected.
Therefore, pursuant to 5 U.S.C. 605(b), these amendments are 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 program numbers are
64.109, Veterans Compensation for Service-Connected Disability, and
64.110, Veterans Dependency and Indemnity Compensation for Service-
Connected Death.
List of Subjects in 38 CFR Part 3
Administrative practice and procedure, Claims, Disability benefits,
Health care, Pensions, Radioactive materials, Veterans, Vietnam.
Approved: May 26, 2006.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.
Editorial Note: This document was received at the Office of the
Federal Register on September 1, 2006.
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For the reasons set forth in the preamble, VA is amending 38 CFR part 3
as set forth below:
PART 3--ADJUDICATION
Subpart A--Pension, Compensation, and Dependency and Indemnity
Compensation
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1. The authority citation for part 3, subpart A, continues to read as
follows:
Authority: 38 U.S.C. 501(a), unless otherwise noted.
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2. Section 3.310 is amended by revising the section heading; by
redesignating paragraph (b) as paragraph (c); and by adding a new
paragraph (b) to read as follows:
Sec. 3.310 Disabilities that are proximately due to, or aggravated
by, service-connected disease or injury.
* * * * *
(b) Aggravation of nonservice-connected disabilities. Any increase
in severity of a nonservice-connected disease or injury that is
proximately due to or the result of a service-connected disease or
injury, and not due to the natural progress of the nonservice-connected
disease, will be service connected. However, VA will not concede that a
nonservice-connected disease or injury was aggravated by a service-
connected disease or injury unless the baseline level of severity of
the nonservice-connected disease or injury is established by medical
evidence created before the onset of aggravation or by the earliest
medical evidence created at any time between the onset of aggravation
and the receipt of medical evidence establishing the current level of
severity of the nonservice-connected disease or injury. The rating
activity will determine the baseline and current levels of severity
under the Schedule for Rating Disabilities (38 CFR part 4) and
determine the extent of aggravation by deducting the baseline level of
severity, as well as any increase in severity due to the natural
progress of the disease, from the current level.
(Authority: 38 U.S.C. 1110 and 1131)
* * * * *
[FR Doc. E6-14835 Filed 9-6-06; 8:45 am]
BILLING CODE 8320-01-P