Special Ratings, 62004-62032 [E8-23825]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 73, Number 202 (Friday, October 17, 2008)]
[Proposed Rules]
[Pages 62004-62032]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-23825]



[[Page 62003]]

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Part III





Department of Veterans Affairs





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38 CFR Part 5



Special Ratings; Proposed Rule

Federal Register / Vol. 73, No. 202 / Friday, October 17, 2008 / 
Proposed Rules

[[Page 62004]]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 5

RIN 2900-AL88


Special Ratings

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to reorganize 
and rewrite in plain language regulations relating to special ratings 
and ratings for health care eligibility only. These revisions are 
proposed as part of VA's rewrite and reorganization of all of its 
compensation and pension rules in a logical, claimant-focused, and 
user-friendly format. The intended effect of the proposed revisions is 
to assist claimants and VA personnel in locating and understanding 
these provisions.

DATES: Comments must be received by VA on or before December 16, 2008.

ADDRESSES: Written comments may be submitted through https://
www.Regulations.gov; by mail or hand-delivery to Director, Regulations 
Management (02REG), Department of Veterans Affairs, 810 Vermont Ave., 
NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026. 
(This is not a toll free number). Comments should indicate that they 
are submitted in response to ``RIN 2900-AL88--Special Ratings.'' Copies 
of 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) 461-4902 for an appointment. (This is not a toll free 
number). In addition, during the comment period, comments may be viewed 
online through the Federal Docket Management System (FDMS) at https://
www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: William F. Russo, Director, 
Regulations Management (02REG), Department of Veterans Affairs, 810 
Vermont Avenue, NW., Washington, DC 20420, (202) 273-9515. (This is not 
a toll free number).

SUPPLEMENTARY INFORMATION: The Secretary of Veterans Affairs has 
established an Office of Regulation Policy and Management (ORPM) to 
provide centralized management and coordination of VA's rulemaking 
process. One of the major functions of this office is to oversee a 
Regulation Rewrite Project (the Project) to improve the clarity and 
consistency of existing VA regulations. The Project responds to a 
recommendation made in the October 2001 ``VA Claims Processing Task 
Force: Report to the Secretary of Veterans Affairs.'' The Task Force 
recommended that the compensation and pension regulations be rewritten 
and reorganized in order to improve VA's claims adjudication process. 
Therefore, the Project began its efforts by reviewing, reorganizing, 
and redrafting the content of the regulations in 38 CFR part 3 
governing the compensation and pension program of the Veterans Benefits 
Administration. These regulations are among the most difficult VA 
regulations for readers to understand and apply.
    Once rewritten, the proposed regulations will be published in 
several portions for public review and comment. This is one such 
portion. It includes proposed rules regarding special ratings. After 
review and consideration of public comments, final versions of these 
proposed regulations will ultimately be published in a new part 5 in 38 
CFR.

Outline

Overview of New Part 5 Organization

Overview of This Notice of Proposed Rulemaking

Table Comparing Current Part 3 Rules With Proposed Part 5 Rules

Content of Proposed Regulations

Special Monthly Compensation

5.320 Determining need for regular aid and attendance.
5.321 Additional compensation for veteran whose spouse needs regular 
aid and attendance.
5.322 Special monthly compensation--general information and 
definitions of disabilities.
5.323 Special monthly compensation under 38 U.S.C. 1114(k).
5.324 Special monthly compensation under 38 U.S.C. 1114(l).
5.325 Special monthly compensation at the intermediate rate between 
38 U.S.C. 1114(l) and (m).
5.326 Special monthly compensation under 38 U.S.C. 1114(m).
5.327 Special monthly compensation at the intermediate rate between 
38 U.S.C. 1114(m) and (n).
5.328 Special monthly compensation under 38 U.S.C. 1114(n).
5.329 Special monthly compensation at the intermediate rate between 
38 U.S.C. 1114(n) and (o).
5.330 Special monthly compensation under 38 U.S.C. 1114(o).
5.331 Special monthly compensation under 38 U.S.C. 1114(p).
5.332 Additional allowance for regular aid and attendance under 38 
U.S.C. 1114(r)(1) or for a higher level of care under 38 U.S.C. 
1114(r)(2).
5.333 Special monthly compensation under 38 U.S.C. 1114(s).
5.334 Special monthly compensation tables.
5.335 Effective dates--Special monthly compensation under Sec. Sec.  
5.332 and 5.333.
5.336 Effective dates--additional compensation for regular aid and 
attendance payable for a veteran's spouse under Sec.  5.321.
5.337 Award of special monthly compensation based on the need for 
regular aid and attendance during period of hospitalization.

Tuberculosis

5.340 Pulmonary tuberculosis shown by X-ray in active service.
5.341 Presumptive service connection for tuberculous disease; 
wartime and service after December 31, 1946.
5.342 Initial grant following inactivity of tuberculosis.
5.343 Effect of diagnosis of active tuberculosis.
5.344 Determination of inactivity (complete arrest) of tuberculosis.
5.345 Changes from activity in pulmonary tuberculosis pension cases.
5.346 Tuberculosis and compensation under 38 U.S.C. 1114(q) and 
1156.
5.347 Continuance of a total disability rating for service-connected 
tuberculosis.

Injury or Death Due to Hospitalization or Treatment

5.350 Benefits under 38 U.S.C. 1151(a) for additional disability or 
death due to hospital care, medical or surgical treatment, 
examination, training and rehabilitation services, or compensated 
work therapy program.
5.351 Effective dates for awards of benefits under 38 U.S.C. 
1151(a).
5.352 Effect on benefits awarded under 38 U.S.C. 1151(a) of Federal 
Tort Claims Act compromises, settlements, and judgments entered 
after November 30, 1962.
5.353 Effect on benefits awarded under 38 U.S.C. 1151(a) of Federal 
Tort Claims Act administrative awards, compromises, settlements, and 
judgments finalized before December 1, 1962.

Ratings for Healthcare Eligibility Only

5.360 Service connection of dental conditions for treatment 
purposes.
5.361 Healthcare eligibility of persons administratively discharged 
under other-than-honorable conditions.
5.362 Presumption of service incurrence of active psychosis for 
purposes of hospital, nursing home, domiciliary, and medical care.
5.363 Determination of service connection for former members of the 
Armed Forces of Czechoslovakia or Poland.

Miscellaneous Service-Connection Regulations

5.365 Claims based on the effects of tobacco products.
5.366 Disability due to impaired hearing.
5.367 Civil service preference ratings.
5.368 Basic eligibility determinations: home loan and education 
benefits.

[[Page 62005]]

Endnote Regarding Amendatory Language

Paperwork Reduction Act

Regulatory Flexibility Act

Executive Order 12866

Unfunded Mandates

Catalog of Federal Domestic Assistance Numbers and Titles

List of Subjects in 38 CFR Part 5

Overview of New Part 5 Organization

    We plan to organize the new part 5 regulations so that most 
provisions governing a specific benefit are located in the same 
subpart, with general provisions pertaining to all compensation and 
pension benefits also grouped together. This organization will allow 
claimants, beneficiaries, and their representatives, as well as VA 
adjudicators, to find information relating to a specific benefit more 
quickly than the organization provided in current part 3.
    The first major subdivision would be ``Subpart A--General 
Provisions.'' It would include information regarding the scope of the 
regulations in new part 5, general definitions, and general policy 
provisions for this part. This subpart was published as proposed on 
March 31, 2006. See 71 FR 16464.
    ``Subpart B--Service Requirements for Veterans'' would include 
information regarding a veteran's military service, including the 
minimum service requirement, types of service, periods of war, and 
service evidence requirements. This subpart was published as proposed 
on January 30, 2004. See 69 FR 4820.
    ``Subpart C--Adjudicative Process, General'' would inform readers 
about types of claims and filing procedures, VA's duties, rights and 
responsibilities of claimants and beneficiaries, general evidence 
requirements, and effective dates for new awards, as well as revision 
of decisions and protection of VA ratings. This subpart will be 
published as three separate Notices of Proposed Rulemaking (NPRMs) due 
to its size. The first, concerning the duties of VA and the rights and 
responsibilities of claimants and beneficiaries, was published as 
proposed on May 10, 2005. See 70 FR 24680. The second, covering general 
evidence requirements, effective dates for awards, revision of 
decisions, and protection of VA ratings, was published as proposed on 
May 22, 2007. See 72 FR 28770. The third NPRM, concerning rules on 
filing VA benefits claims, was published as proposed on April 14, 2008. 
See 73 FR 20136.
    ``Subpart D--Dependents and Survivors'' would inform readers how VA 
determines whether an individual is a dependent or a survivor of a 
veteran. It would also provide the evidence requirements for these 
determinations. This subpart was published as proposed on September 20, 
2006. See 71 FR 55052.
    ``Subpart E--Claims for Service Connection and Disability 
Compensation'' would define service-connected compensation, including 
direct and secondary service connection. This subpart would inform 
readers how VA determines entitlement to service connection. The 
subpart would also contain those provisions governing presumptions 
related to service connection, rating principles, and effective dates, 
as well as several special ratings. This subpart will be published as 
three separate NPRMs due to its size. The first, concerning 
presumptions related to service connection, was published as proposed 
on July 27, 2004. See 69 FR 44614. The second, concerning special 
ratings, is the subject of this document.
    ``Subpart F--Nonservice-Connected Disability Pensions and Death 
Pensions'' would include information regarding the three types of 
nonservice-connected pension: Old-Law Pension, Section 306 Pension, and 
Improved Pension. This subpart would also include those provisions that 
state how to establish entitlement to Improved Pension, and the 
effective dates governing each pension. This subpart would be published 
in two separate NPRMs due to its size. The portion concerning Old-Law 
Pension, Section 306 Pension, and elections of Improved Pension was 
published as proposed on December 27, 2004. See 69 FR 77578. The 
portion concerning Improved Pension was published as proposed on 
September 26, 2007. See 72 FR 54776.
    ``Subpart G--Dependency and Indemnity Compensation, Accrued 
Benefits, and Special Rules Applicable Upon Death of a Beneficiary'' 
would contain regulations governing claims for dependency and indemnity 
compensation (DIC); accrued benefits; benefits awarded, but unpaid at 
death; and various special rules that apply to the disposition of VA 
benefits, or proceeds of VA benefits, when a beneficiary dies. This 
subpart would also include related definitions, effective-date rules, 
and rate-of-payment rules. This subpart was published as two separate 
NPRMs due to its size. The portion concerning accrued benefits, special 
rules applicable upon the death of a beneficiary, and several 
effective-date rules was published as proposed on October 1, 2004. See 
69 FR 59072. The portion concerning DIC benefits and general provisions 
relating to proof of death and service-connected cause of death was 
published as proposed on October 21, 2005. See 70 FR 61326.
    ``Subpart H--Special and Ancillary Benefits for Veterans, 
Dependents, and Survivors'' would pertain to special and ancillary 
benefits available, including benefits for children with various birth 
defects. This subpart was published as proposed on March 9, 2007. See 
72 FR 10860.
    ``Subpart I--Benefits for Certain Filipino Veterans and Survivors'' 
would pertain to the various benefits available to Filipino veterans 
and their survivors. This subpart was published as proposed on June 30, 
2006. See 71 FR 37790.
    ``Subpart J--Burial Benefits'' would pertain to burial allowances. 
This subpart was published as proposed on April 8, 2008. See 73 FR 
19021.
    ``Subpart K--Matters Affecting the Receipt of Benefits'' would 
contain provisions regarding bars to benefits, forfeiture of benefits, 
and renouncement of benefits. This subpart was published as proposed on 
May 31, 2006. See 71 FR 31056.
    ``Subpart L--Payments and Adjustments to Payments'' would include 
general rate-setting rules, several adjustment and resumption 
regulations, and election-of-benefit rules. This subpart will be 
published as two separate NPRMs due to its size. The portion concerning 
payments to beneficiaries who are eligible for more than one benefit 
was published as proposed on October 2, 2007. See 72 FR 56136.
    The final subpart, ``Subpart M--Apportionments to Dependents and 
Payments to Fiduciaries and Incarcerated Beneficiaries,'' would include 
regulations governing apportionments, benefits for incarcerated 
beneficiaries, and guardianship.
    Some of the regulations in this NPRM cross-reference other 
compensation and pension regulations. If those regulations have been 
published in this or earlier NPRMs for the Project, we cite the 
proposed part 5 section. We also include, in the relevant portion of 
the Supplementary Information, the Federal Register document citation 
(including the Regulation Identifier Number and Subject Heading) where 
a proposed part 5 section published in an earlier NPRM may be found. 
However, where a regulation proposed in this NPRM would cross-reference 
a proposed part 5 regulation that has not yet been published, we cite 
the current part 3 regulation that deals with the same subject matter. 
The current part 3 section we cite may differ from its eventual part 5 
counterpart in some respects, but this method will assist

[[Page 62006]]

readers in understanding these proposed regulations where no part 5 
counterpart has yet been published. If there is no part 3 counterpart 
to a proposed part 5 regulation that has not yet been published, we 
have inserted ``[regulation that will be published in a future Notice 
of Proposed Rulemaking]'' where the part 5 regulation citation would be 
placed.
    Because of its large size, proposed part 5 will be published in a 
number of NPRMs, such as this one. VA will not adopt any portion of 
part 5 as final until all of the NPRMs have been published for public 
comment.
    In connection with this rulemaking, VA will accept comments 
relating to a prior rulemaking issued as a part of the Project, if the 
matter being commented on relates to both rulemakings.

Overview of This Notice of Proposed Rulemaking

    This proposed rulemaking pertains to those regulations governing 
special ratings. These regulations would be contained in proposed 
Subpart E of new 38 CFR part 5. Although these regulations have been 
substantially restructured and rewritten for greater clarity and ease 
of use, most of the basic concepts contained in these proposed 
regulations are the same as in their existing counterparts in 38 CFR 
part 3. However, a few substantive changes are proposed, as are some 
regulations that do not have counterparts in 38 CFR part 3.

Table Comparing Current Part 3 Rules With Proposed Part 5 Rules

    The following table shows the relationship between the proposed 
regulations contained in this NPRM and the current regulations in part 
3:

------------------------------------------------------------------------
                                            Based in whole or in part on
   Proposed part 5  section or paragraph      38 CFR part 3 section or
                                                      paragraph
------------------------------------------------------------------------
5.320(a)..................................  3.351(b), 3.352(a) [first,
                                             fifth-seventh sentences].
5.320(b)..................................  3.352(a) [second-fourth
                                             sentences].
 
5.321(a)..................................  3.351(a)(2) and (b).
5.321(b)(1)-(3)...........................  3.351(c)(1)-(2).
5.321(c)..................................  3.351(c)(3).
 
5.322(a)..................................  New.
5.322(b), (c)(1)-(3)......................  3.350(a)(2)(i).
5.322(c)(4)...............................  3.350(a)(2)(i) (b) [sic].
5.322(d)..................................  3.350(c)(2).
5.322(e)..................................  3.350(d).
5.322(f)..................................  3.350(b)(2) [second
                                             sentence].
5.322(g)..................................  3.350(a)(4).
 
5.323(a)(1)-(8)...........................  3.350(a).
5.323(b)(1)...............................  3.350(a).
5.323(b)(2)...............................  3.350(a).
5.323(c)(1)...............................  New.
5.323(c)(2)...............................  3.350(a)(1)(i) [first
                                             sentence].
5.323(c)(3)(i)-(iii)......................  3.350(a)(1)(i) [second
                                             sentence].
5.323(c)(3)(iv)...........................  New.
5.323(c)(4)...............................  New.
5.323(c)(5)...............................  New.
5.323(c)(6)...............................  3.350(a)(1)(iii).
5.323(c)(7)...............................  3.350(a)(1)(iv).
5.323(d)(1)...............................  3.350(a)(3)(i).
5.323(d)(2)...............................  3.350(a)(3)(ii).
5.323(e)..................................  3.350(a)(5).
5.323(f)..................................  3.350(a)(6).
 
5.324 [introduction]......................  3.350(b).
5.324(a)..................................  3.350(b), (b)(1).
5.324(b)..................................  3.350(b), (b)(1).
5.324(c)..................................  3.350(b), (b)(2).
5.324(d)..................................  3.350(b), (b)(4).
5.324(e)..................................  3.350(b)(3).
 
5.325 [introduction]......................  3.350(f).
5.325(a)..................................  3.350(f)(1)(i).
5.325(b)..................................  3.350(f)(1)(iii).
5.325(c)..................................  3.350(f)(1)(vi).
5.325(d)..................................  3.350(f)(2)(i).
 
5.326 [introduction]......................  3.350(c)(1).
5.326(a)..................................  3.350(c)(1)(i).
5.326(b)..................................  3.350(c)(1)(ii).
5.326(c)..................................  3.350(f)(1)(ii).
5.326(d)..................................  3.350(f)(1)(iv).
5.326(e)..................................  3.350(c)(1)(iii).
5.326(f)..................................  3.350(f)(1)(viii).
5.326(g)..................................  3.350(c)(1)(iv).
5.326(h)..................................  3.350(f)(2)(ii).
5.326(i)..................................  3.350(c)(1)(v), (c)(3), and
                                             4.79 [last
                                            sentence].
 
5.327 [introduction]......................  3.350(f).
5.327(a)..................................  3.350(f)(1)(x).
5.327(b)..................................  3.350(f)(1)(v).
5.327(c)..................................  3.350(f)(1)(vii).
5.327(d)..................................  3.350(f)(1)(ix).
5.327(e)..................................  3.350(f)(2)(iii).
 
5.328.....................................  3.350(d) [introduction].
5.328(a)..................................  3.350(d)(1).
5.328(b)..................................  3.350(f)(1)(xi).
5.328(c)..................................  3.350(d)(2).
5.328(d)..................................  3.350(d) and (d)(3).
5.328(e)..................................  3.350(d)(4).
 
5.329.....................................  3.350(f), (f)(1)(xii).
 
5.330 [introduction]......................  3.350(e)(1).
5.330(a)..................................  3.350(e)(1)(i).
5.330(b)..................................  3.350(e)(1)(iii).
5.330(c)..................................  3.350(e)(1)(iv).
5.330(d)..................................  3.350(e)(2).
5.330(e)..................................  3.350(e)(1)(ii) and (e)(3).
5.331(a)..................................  3.350(f).
5.331(b)(1)...............................  3.350(f)(2)(iv).
5.331(b)(2)...............................  3.350(f)(2)(v).
5.331(b)(3)...............................  3.350(f)(2)(vi).
5.331(c)..................................  3.350(f)(2)(vii).
5.331(c)(1)...............................  3.350(f)(2)(vii) (A).
5.331(c)(2)...............................  3.350(f)(2)(vii) (B).
5.331(c)(3)...............................  3.350(f)(2)(vii) (C).
5.331(d)..................................  3.350(f)(3) and (f)(4)(i).
5.331(e)(1),(2)...........................  3.350(f)(4).
5.331(e)(3)...............................  3.350(f)(4)(ii).
5.331(f)..................................  3.350(f)(5).
 
5.332(a)..................................  3.350(h)(1) and (2).
5.332(b)..................................  3.350(h).
5.332(c)..................................  3.350(h) and 3.352(b).
5.332(c)(1)(i)............................  3.350(h)(2) and
                                             3.352(b)(1)(i).
5.332(c)(1)(ii)...........................  3.352(b)(1)(ii).
5.332(c)(1)(iii)..........................  3.352(b)(1)(iii).
5.332(c)(1)(iv)...........................  3.352(b)(1)(iii).
5.332(c)(2)...............................  3.352(b)(2) [first
                                            sentence].
5.332(c)(3)...............................  3.352(b)(2) [second
                                             sentence].
5.332(c)(4)...............................  3.352(b)(2) [third
                                            sentence].
5.332(c)(5)...............................  3.352(b)(3).
5.332(c)(6)...............................  3.352(b)(4).
 
5.333 [introduction]......................  3.350(i).
5.333(a)..................................  3.350(i)(1).
5.333(b)..................................  3.350(i)(2).
5.334.....................................  New.
5.335(a)..................................  3.401(a)(1).
5.335(b)..................................  3.401(a)(1).
 
5.336(a)(1)...............................  3.401(a)(3).
5.336(a)(2)...............................  3.401(a)(3).
5.336(b)..................................  3.501(b)(3).
 
5.337.....................................  3.401(a)(2).
 
5.340.....................................  3.370.
 
5.341.....................................  3.371.
 
5.342.....................................  3.372.
 
5.343.....................................  3.374.
 
5.344.....................................  3.375.
 
5.345.....................................  3.378.
 
5.346(a)..................................  3.959.
5.346(b)(1)(i)............................  3.350(g)(1).
5.346(b)(1)(ii)...........................  3.401(g).
5.346(b)(2)...............................  3.350(g)(2).
 
5.347.....................................  3.343(b).
 
5.350.....................................  3.361.
 
5.351.....................................  3.361(a)(2), 3.400(i).
 
5.352.....................................  3.362.
 
5.353.....................................  3.363.
 
5.360(a)..................................  New.
5.360(b)..................................  3.381(a).
5.360(c)(1)...............................  3.381(e)(1).

[[Page 62007]]

 
5.360(c)(2)...............................  3.381(e)(2).
5.360(c)(3)...............................  3.381(d)(5).
5.360(c)(4)...............................  3.381(d)(6).
5.360(d)(1)-(3)...........................  3.381(b).
5.360(d)(4)...............................  3.381(c) [first
                                            sentence].
5.360(e) [introduction]...................  3.381(c) [second
                                            sentence].
5.360(e)(1)...............................  3.381(d)(1).
5.360(e)(2)...............................  3.381(d)(2).
5.360(e)(3)...............................  3.381(d)(3).
5.360(e)(4)...............................  3.381(d)(4).
5.360(e)(5)...............................  3.381(e)(3).
5.360(e)(6)...............................  3.381(e)(4).
5.360(e)(7)...............................  3.381(f).
 
5.361(a)..................................  3.360(a).
5.361(b)..................................  3.360(c).
5.361(c)..................................  3.360(b).
 
5.362.....................................  New.
 
5.363.....................................  3.359.
 
5.365.....................................  3.300.
 
5.366.....................................  3.385.
 
5.367.....................................  3.357.
 
5.368.....................................  3.315(b), (c).
------------------------------------------------------------------------

    Readers who use this table to compare the proposed provisions with 
the existing regulatory provisions, and who observe a difference 
between them, should consult the text that appears later in this 
document for an explanation of significant changes in each regulation. 
Not every paragraph of every current part 3 section regarding the 
subject matter of this rulemaking is accounted for in the table. In 
some instances, other portions of the part 3 sections that are 
contained in these proposed regulations appear in subparts of part 5 
that are being published separately for public comment. For example, a 
reader might find a reference to paragraph (a) of a part 3 section in 
the table, but no reference to paragraph (b) of that section because 
paragraph (b) will be addressed in a separate NPRM. The table also does 
not include provisions from part 3 regulations that will not be carried 
forward to part 5. Such provisions are discussed specifically under the 
appropriate part 5 heading in this preamble. Readers are invited to 
comment on the proposed part 5 provisions and on our proposals to omit 
those part 3 provisions from part 5.

Content of Proposed Regulations

Special Monthly Compensation

5.320 Determining Need for Regular Aid and Attendance

    Proposed Sec.  5.320 is derived primarily from current Sec.  
3.352(a). Although Sec.  3.352(a) by its terms applies only to 
determinations of the need for regular aid and attendance under Sec.  
3.351(c)(3) (increased DIC based on need for aid and attendance), in 
practice VA applies Sec.  3.352(a) as the general criteria for 
determining the need for regular aid and attendance in every context 
for which benefits are premised on such a need and administered under 
part 3. This is reflected in part by the reference to the Sec.  
3.352(a) criteria in Sec.  3.351(c)(3), which applies to a veteran, 
spouse, surviving spouse, or parent, and in Sec.  3.350(b)(3), which 
refers to Sec.  3.352(a) for the criteria to determine whether a 
veteran qualifies for special monthly compensation (SMC) based on the 
need for regular aid and attendance. In part 5, we would explicitly 
make these criteria generally applicable to all determinations of the 
need for regular aid and attendance, and, in so doing, will simplify 
and clarify the criteria.
    Current Sec.  3.351(b) uses the term ``helpless'' to mean requiring 
``the regular aid and attendance of another person,'' but the Veterans' 
Housing Opportunity and Benefits Improvement Act of 2006 amended 
certain sections of title 38, United States Code, to replace the term 
``helpless'' with the term ``significantly disabled'' (and similar 
terminology) when describing veterans, dependents, or survivors who 
need regular aid and attendance benefits. See Public Law 109-233, sec. 
502, 120 Stat. 398, 415 (June 15, 2006). Despite the change in 
terminology, the Act did not make any substantive change to title 38. 
See Explanatory Statement on Amendment to Senate Bill, S. 1235, as 
amended, 152 Cong. Rec. H2976, H2978 (daily ed. May 22, 2006). The 
proposed part 5 criteria for needing regular aid and attendance, 
however, would not reference the statutory requirement that a person be 
``helpless'' or ``so significantly disabled'' as to regularly need aid 
and attendance. The statutory term serves in Sec.  3.352(a) as the 
basis for the application of the various criteria that can serve as the 
basis for a finding that an individual is in need of regular aid and 
attendance, which would be listed in proposed Sec.  5.320(a)(1)-(6). 
But those criteria clearly apply only if a person is disabled and, as a 
result, the reference to being ``so significantly disabled'' is 
superfluous. We would, instead, simply state that a person needs 
regular aid and attendance if that person is unable to perform the 
functions listed in paragraphs (a)(1)-(6).
    In addition, current Sec.  3.351(b) uses the term ``require'' 
rather than ``need'' regular aid and attendance. We propose to use 
``need'' in proposed part 5. The words ``need'' and ``require'' have 
identical meanings, but part 3 uses ``need'' more than 60 times when 
referring to regular aid and attendance, but uses ``require'' only five 
times. In the authorizing statutes, 38 U.S.C. 1114(l) uses the phrase 
``in need of regular aid and attendance'', while 38 U.S.C. 1115(1)(E) 
and 1502(b) use ``need or require the regular aid and attendance.'' The 
word ``need'' is perfectly clear, and more easily understood than 
``require'' or ``need or require,'' and using the word ``need'' will 
not result in any substantive difference between parts 3 and 5.
    We would also omit the phrase ``of another person.'' In current 
part 3, the phrase inconsistently appears after ``aid and attendance.'' 
It is in current Sec. Sec.  3.25(e) and 3.351(b), but not in Sec. Sec.  
3.350, 3.351(c), or 3.352. The statutes authorizing benefits based on 
needing ``regular aid and attendance'' do not consistently use the 
phrase ``of another person.'' Compare, e.g., 38 U.S.C. 1114(l), (m), 
(r) (not using ``of another person''), with 38 U.S.C. 1115(1)(E) (using 
``of another person''). All of the criteria for determining need for 
aid and attendance listed in Sec.  3.352, ``Criteria for determining 
aid and attendance and `permanently bedridden,''' concern tasks that 
must be done by someone other than the person needing aid and 
attendance. Therefore, the phrase ``of another person'' is unnecessary.
    In proposed Sec.  5.320(a) we would specifically note that the need 
for regular aid and attendance need not be permanent. There is no 
express statutory requirement that a person's need for regular aid and 
attendance is permanent in nature, and the proposed rule is consistent 
with the current regulation. Indeed, to impose a ``permanent'' 
requirement might conflict with 38 U.S.C. 1114(l), which distinguishes 
a veteran's need for regular aid and attendance from a veteran being 
``permanently bedridden,'' as further explained later in this NPRM.
    As noted above, proposed Sec.  5.320(a)(1)-(6) would set forth the 
basic criteria to establish the need for regular aid and attendance, 
which are derived from current Sec.  3.352(a). The language describing 
the criteria in the proposed paragraph is plainer and more modern than 
that of the current regulation, but there are no substantive 
differences. In particular, current

[[Page 62008]]

Sec.  3.352(a), ``Basic criteria for regular aid and attendance and 
permanently bedridden,'' specifies that ``physical or mental'' 
incapacity necessitates assistance in protecting ``the claimant from 
hazards or dangers incident to his or her daily environment.'' In the 
proposed rule, we have omitted the phrase ``physical or mental.'' The 
term ``incapacity'' needs no such qualification because the only 
possible incapacitating causes of a person's inability to avoid hazards 
or dangers are physical or mental. Thus, the phrase ``physical or 
mental'' is superfluous.
    Proposed Sec.  5.320(b) reflects VA's policy to consider a person 
who is bedridden to also be a person who needs regular aid and 
attendance. Although the title of current Sec.  3.352 and the caption 
to Sec.  3.352(a) refer to the term ``permanently bedridden,'' the text 
of Sec.  3.352(a) describes ``bedridden'' status without such 
qualification. Indeed, 38 U.S.C. 1114(l) contains the sole statutory 
requirement that a veteran be ``permanently bedridden,'' stating that a 
veteran is eligible for special monthly compensation at the rate set 
forth in section 1114(l) if the veteran ``is permanently bedridden or 
with such significant disabilities as to be in need of regular aid and 
attendance.'' That requirement would be covered by Sec.  5.324(d).
    Thus, proposed Sec.  5.320(b) implements the general statutory 
criterion, appearing in several places in title 38, United States Code, 
that a person who is so significantly disabled as to need regular aid 
and attendance is entitled to certain VA benefits. It is reasonable to 
assume that a person who is bedridden due to disability has such need. 
Therefore, proposed part 5, like part 3, would consider a person who is 
bedridden to be one who needs regular aid and attendance.
    Proposed Sec.  5.320(b) is based on the rules governing 
``bedridden'' determinations under current Sec.  3.352(a). Current 
Sec.  3.352(a) includes a statement that having ``voluntarily taken to 
bed'' would not support a finding of bedridden status. We propose to 
reword this requirement by stating that the person ``must remain in bed 
due to his or her disability or disabilities,'' thus eliminating the 
possibility that voluntary bed rest could qualify. We would add that 
the bed rest must be based on medical necessity, but clarify that such 
necessity cannot be for convalescence or cure. These statements are 
consistent with the current rule and will not lead to a different 
result in cases adjudicated under part 5.
    The last two sentences of Sec.  3.352(a) state, ``Determinations 
that the veteran is so helpless, [sic] as to be in need of regular aid 
and attendance will not be based solely upon an opinion that the 
claimant's condition is such as would require him or her to be in bed. 
They must be based on the actual requirement of personal assistance 
from others.'' Because the proposed regulation makes clear that a 
person who is bedridden also is in need of aid and attendance, we will 
not repeat these sentences in part 5.

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

    Current Sec.  3.351(a)(2) states that a veteran in receipt of 
disability compensation may be eligible for increased compensation if 
he or she has a spouse who is in need of regular aid and attendance. 
The authorizing statute, 38 U.S.C. 1115, requires a veteran to be 
entitled to disability compensation and to have a disability rating of 
not less than 30 percent to qualify for this additional benefit. We 
propose to include this language in Sec.  5.321(a) because it reflects 
the current statutory criteria and will help readers locate the 
eligibility requirements.
    Current Sec.  3.351(c) contains the general criteria for 
determining whether a dependent spouse needs regular aid and 
attendance. We propose to reorganize these criteria in proposed Sec.  
5.321(b) and (c). Proposed paragraph (b) would be titled ``Automatic 
eligibility''; it would explain that a spouse would be found to be in 
need of regular aid and attendance if he or she is blind or has a 
serious visual impairment or is a patient in a nursing home due to 
mental or physical incapacity. Proposed paragraph (c) would be entitled 
``Factual need''; it would state the principle found in current 
paragraph (c)(3) that a spouse will be considered in need of regular 
aid and attendance if a factual need is shown under proposed Sec.  
5.320.
    Under current Sec.  3.351(c), a ``spouse * * * will be considered 
in need of regular aid and attendance if he or she: (1) Is blind or so 
nearly blind as to have corrected visual acuity of 5/200 or less, in 
both eyes, or concentric contraction of the visual field to 5 degrees 
or less.'' Although not stated explicitly, it is long-standing VA 
practice to require that the concentric contraction be bilateral. The 
1945 Schedule for Rating Disabilities states, ``With visual acuity 5/
200 or less or the visual field reduced to 5 degrees contraction, in 
either event in both eyes, the question of entitlement on account of 
regular aid and attendance will be determined on the facts in the 
individual case.'' 1945 Rating Schedule, page 53-54, para.10 (4/1/1946) 
(emphasis added); see also 38 CFR 4.79 (substantially the same). 
Requiring bilateral concentric contraction of the visual field to 5 
degrees bilaterally implements the ``so nearly blind'' criterion of 
need for regular aid and attendance in the authorizing statute. See 38 
U.S.C. 1115(1)(E). The current VA rating schedule rates unilateral 
concentric contraction of the visual field to 5 degrees as 30 percent 
disabling; bilateral concentric contraction of the visual field to 5 
degrees is rated 100 percent disabling. 38 CFR 4.84a, diagnostic code 
6080 (2007). These rating criteria demonstrate that unilateral 
contraction of the visual field to 5 degrees cannot rationally be 
considered ``so nearly blind'' as to need regular aid and attendance 
within the meaning of 38 U.S.C. 1115(1)(E). Although Sec.  4.79 and 
diagnostic code 6080 apply to rating the vision of veterans, there is 
no rational basis to construe the criterion ``so nearly blind'' 
differently for veterans and for their spouses. Hence, we propose to 
clarify that the concentric contraction criterion applies to both eyes. 
Stating the visual field criterion of the need as bilateral in proposed 
Sec.  5.321(b) merely states current VA practice explicitly. It makes 
no substantive change.
    We propose to cite 38 U.S.C. 1115 as the authority for proposed 
Sec.  5.321, to show the actual authority for the criteria for need of 
a spouse for regular aid and attendance, especially regarding the 
nursing home and the blindness criteria. The authority citation for 
current Sec.  3.351(c), is stated as 38 U.S.C. 1502(b), but this is 
incomplete. Section 1502(b) is the authority for those criteria in the 
context of pension. Section 1115(1)(E) authorizes special monthly 
compensation to a veteran with a spouse who needs regular aid and 
attendance. Hence, we have cited section 1115 as authority for proposed 
Sec.  5.321.
    The criteria to establish a dependent spouse's need for regular aid 
and attendance for purposes of a veteran's entitlement to additional 
compensation, set forth in 38 U.S.C. 1115(1)(E), include that the 
spouse be ``blind, or so nearly blind or significantly disabled as to 
need or require the regular aid and attendance of another person.'' 
However, the implementing regulation, 38 CFR Sec.  3.351(c)(1), defines 
``blind or so nearly blind'' as ``to have corrected visual acuity of 5/
200 or less, in both eyes, or concentric contraction of the visual 
field to 5 degrees or less.'' These criteria are similar to the 
criteria in 38 U.S.C. 1114(l), which provides special monthly 
compensation to a veteran with such visual disability.

[[Page 62009]]

    We note that it has been VA's longstanding practice to apply these 
criteria. The ``Veterans Disability Compensation and Survivor Benefits 
Act of 1976,'' Public Law 94-433, sec. 102, 90 Stat. 1375 (Sep. 30, 
1976), authorized VA to provide additional compensation to veterans 
whose spouses needed regular aid and attendance, and that legislation 
was the source of what is now 38 U.S.C. 1115(1)(E). In 1976, VA amended 
Sec.  3.351(a) to authorize such additional compensation. 41 FR 55872, 
55874 (Dec. 23, 1976); VA Transmittal Sheet 617 (Oct. 1, 1967). 
However, the criteria for blindness, 5/200 visual acuity or 5 degrees 
concentric contraction of the visual field, remained unchanged. In 
light of VA's consistent, long-standing use of these criteria in this 
context, we propose to use the criteria in Sec.  5.321.
    In promulgating Sec.  3.351(c)(1), VA adopted these more specific 
criteria, rather than the vague and difficult-to-apply criteria in 38 
U.S.C. 1115(1)(E), because they are more objective and easier to apply. 
Moreover, this definition of ``blind or so nearly blind'' does not 
limit the veteran's entitlement to additional compensation under 
section 1115(1)(E), because Sec.  5.321(c) allows the spouse to be 
considered in need of regular aid and attendance based on the facts in 
the individual case, regardless of his or her vision. This provision 
implements the language in 38 U.S.C. 1115(1)(E) that authorizes VA to 
pay such additional compensation when the veteran's spouse is ``so * * 
* significantly disabled as to need or require the regular aid and 
attendance of another person.''

5.322 Special Monthly Compensation--General Information and Definitions 
of Disabilities

    Proposed Sec.  5.322 would define disabilities that establish 
entitlement to SMC under the sections that follow that are not defined 
in those sections. Proposed paragraph (a) states that SMC is available 
for veterans who need regular aid and attendance, are bedridden, suffer 
certain service-connected disabilities or combinations of disabilities 
(considering also certain nonservice-connected disabilities in 
determining entitlement to certain SMC rates), or have a spouse who 
needs regular aid and attendance. The paragraph identifies by cross 
reference the regulations that address the potential contribution of a 
nonservice-connected disability to entitlement to SMC. This paragraph 
also informs the user where and how to find the monetary rates of SMC.
    Proposed paragraphs (b) through (g) would consolidate principles 
that apply to establishing particular levels of compensation throughout 
current Sec.  3.350. By consolidating these principles in proposed 
Sec.  5.322 and, thereafter, referencing the particular paragraph where 
applicable, it will be easier for readers to find specific rules.
    Title 38, United States Code, provides SMC for ``anatomical loss or 
loss of use of'' certain body parts. 38 U.S.C. 1114(k)-(p). Current 
Sec.  3.350 variously uses the phrases ``anatomical loss or loss of use 
[of the named body part]'' and ``loss or loss of use [of the named body 
part].'' These phrases mean the same thing. Where Sec.  3.350 uses 
``loss of [a named body part]'', as contrasted with ``loss of use of [a 
named body part],'' ``loss of'' means anatomical loss, consistent with 
their statutory derivation. Compare, e.g., 38 U.S.C. 1114(k) 
(``anatomical loss or loss of use of one or more creative organs'') 
with Sec.  3.350(a)(1)(i) (``Loss of a creative organ will be shown by 
acquired absence of one or both testicles * * * ovaries or other 
creative organ''). For consistency within part 5, we propose to use 
``anatomical loss or loss of use [of the named body part]'' and 
``anatomical loss [of the named body part]'' throughout part 5.
    We propose to define the loss of use of a hand or a foot at 
proposed Sec.  5.322 paragraphs (b) and (c), respectively. These 
definitions are derived from current Sec.  3.350(a)(2). Current Sec.  
3.350(a)(2)(i)(a) [sic] refers to ``complete ankylosis of two major 
joints of an extremity,'' but does not define ``major joints.'' VA has 
defined the major joints in 38 CFR 4.45(f), and we propose to 
incorporate this definition into paragraphs (b) and (c) regarding the 
upper and lower extremity, respectively, as an aid to readers. Current 
Sec.  3.350(a)(2)(i)(a) [sic] also refers to ``[e]xtremely unfavorable 
complete ankylosis of the knee'' without defining this term. VA has 
defined extremely unfavorable ankylosis of the knee in 38 4.71a, 
Diagnostic Code 5256, and we propose to incorporate this definition 
into paragraph (c)(1) as an aid to readers.
    Current Sec.  3.350(a)(2)(i) states the amount of function of a 
hand or foot of which there is loss of use as follows: ``Loss of use of 
a hand or a foot will be held to exist when no effective function 
remains other than that which would be equally well served by an 
amputation stump * * * with use of a suitable prosthetic appliance.'' 
This means the function of the hand or foot is less than or equal to 
the function of a prosthesis attached to the amputation stump. Proposed 
Sec.  5.322(b) and (c) have restated the extent of function that 
qualifies as loss of use of a hand or foot, respectively, as 
``functions no better than a prosthesis would function if attached to 
the [arm or leg] at a point of amputation below the [elbow or knee].'' 
``[F]unctions no better than'' means the same thing as ``no effective 
function remains other than that which would be equally well served 
by.'' No substantive change is intended.
    Proposed Sec.  5.322(d) is based on current Sec.  3.350(c)(2). The 
first sentence of current Sec.  3.350(c)(2) states that in determining 
whether there is natural elbow or knee action for purposes of Sec.  
3.350(c)(1)(ii) and (iii), VA will consider whether use of the proper 
prosthetic appliance requires natural use of the joint or whether 
necessary motion is otherwise controlled, in that the muscles affecting 
joint motion, if not already atrophied, will become so. In proposed 
Sec.  5.322(d), we would explain the effect of VA's consideration of 
whether the veteran is able to use a prosthesis that requires the 
natural use of the elbow or knee joint. The regulation explains that 
natural elbow or knee action is prevented when a prosthesis is in place 
if the veteran is unable to use a prosthesis that requires the natural 
use of the elbow or knee joint, or if the veteran is unable to move 
such a joint, as in complete ankylosis or complete paralysis. In order 
to simplify the rule, we propose not to repeat that VA will consider 
whether when using a proper prosthesis necessary motion is controlled 
by means other than natural use of the joint so that the muscles 
affecting joint motion, if not already atrophied, will become so. This 
language is not contained in 38 U.S.C. 1114 and does not aid in 
determining whether use of a prosthesis prevents natural elbow or knee 
action with a prosthesis in place.
    Current Sec.  3.350(c)(2) refers to ``no movement in the joint, as 
in ankylosis or complete paralysis.'' In proposed Sec.  5.322(d), we 
have inserted the word ``complete'' before ``ankylosis'' to clarify the 
intent of the current rule that the ankylosis must be complete.
    Proposed Sec.  5.322(e) is derived from current Sec.  3.350(d). VA 
will consider a veteran prevented from wearing a prosthesis due to 
amputation of an extremity (arm or leg) near the shoulder or hip if the 
anatomical loss prevents the use of a prosthesis, and reamputation at a 
higher level that permits the use of a prosthesis is not possible. If a 
prosthesis cannot be worn at the present level of amputation but could 
be worn if there were a reamputation at a higher level, VA will

[[Page 62010]]

consider the veteran not to have an anatomical loss of the extremity 
(arm or leg) so near the shoulder or hip as to qualify for SMC under 38 
U.S.C. 1114(n). Instead, VA will consider the veteran eligible only for 
SMC based on anatomical loss or loss of use of the arm at a level, or 
with complications, preventing natural elbow action with a prosthesis 
in place.
    We note that, like current Sec.  3.350(d), Sec.  3.350(f) requires 
anatomical loss of the leg or arm so near the hip or shoulder as to 
prevent the use of prosthetic appliance. We propose to make Sec.  5.322 
applicable to the part 5 counterparts to these provisions as well, 
instead of limiting its application to the counterparts of Sec.  
3.350(d), in an effort to ensure consistent use and application of 
terminology and promote consistency in VA decisionmaking.
    Proposed Sec.  5.322(f) is consistent with the second sentence of 
current Sec.  3.350(b)(2). The rule bars payment of SMC to a veteran 
who has actual visual acuity better than 5/200 but is nevertheless 
assigned a disability rating based on visual acuity of 5/200. The 
rating schedule for impaired visual acuity, 38 CFR 4.84a, Table V, 
provides for rating based on impaired visual acuity of 5/200 to 
veterans with impaired visual acuity ranging between 5/200 and more 
than 10/200. See 38 CFR 4.83. However, SMC under 38 U.S.C. 1114 is 
available only to a veteran with visual acuity of 5/200 or less. 
Therefore, proposed Sec.  5.322(f), like current Sec.  3.350(b)(2), 
requires adjudicators to ascertain that a veteran in receipt of 
disability compensation based on visual acuity of 5/200 actually 
suffers from impaired visual acuity of 5/200 or less.
    We propose to include the definition of loss of use or blindness of 
an eye, having only light perception, at proposed Sec.  5.322(g). This 
definition is derived from current Sec.  3.350(a)(4). We propose to 
restate ``considered of negligible utility'' contained in current Sec.  
3.350(a)(4) as ``considered insignificant usefulness of sight'' in 
Sec.  5.322(g). Readers might misinterpret ``considered of negligible 
utility'' in the current regulation as meaning that a report showing 
visual acuity difficulties at distances less than 3 feet would make the 
result of the visual examination not useful in determining entitlement 
to SMC. The words ``negligible utility'' means insignificant usefulness 
of sight. The proposed restatement will make clear that the regulation 
refers to the disabling nature of a veteran's visual acuity and not to 
the evidentiary weight of a visual examination report.

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

    Proposed Sec.  5.323 is derived from current Sec.  3.350(a). The 
proposed regulation would be titled ``Special monthly compensation 
under 38 U.S.C. 1114(k).''
    In Sec.  5.323(a)(8), we have clarified that treatment of breast 
tissue with radiation does not include diagnostic procedures that 
require the use of radiation. We do not believe that Congress intended 
to include diagnostic procedures such as a mammogram or other x-ray 
examination as a basis for compensation under 38 U.S.C. 1114(k), 
because such examinations are routinely performed.
    Proposed Sec.  5.323(b) is derived from the remaining three 
sentences in current Sec.  3.350(a).
    Proposed Sec.  5.323(c) is derived from current Sec.  3.350(a)(1). 
Proposed Sec.  5.323(c)(1) defines a ``creative organ'' as an organ 
directly involved in reproduction. In VAOPGCPREC 2-2000, 65 FR 33422 
(May 23, 2000), VA's General Counsel noted that the term ``creative 
organ'' is not defined in 38 U.S.C. 1114(k), nor in any other provision 
of title 38, United States Code. It is unique to section 1114(k) and is 
used in current Sec.  3.350(a)(1) without definition. After examining 
the issue, the General Counsel determined that by using the term 
``creative organ'' Congress meant procreative, or reproductive, organs. 
The proposed definition is consistent with VAOPGCPREC 2-2000.
    Proposed Sec.  5.323(c)(2) restates the first sentence of current 
Sec.  3.350(a)(1)(i). The second sentence of current Sec.  
3.350(a)(1)(i) is restated in proposed Sec.  5.323(c)(3)(i) through 
(iii).
    Current 38 CFR 3.350(a)(1)(i)(c) states that loss of use of a 
creative organ may be shown ``when a biopsy, recommended by a board 
including a genitourologist and accepted by the veteran, establishes 
the absence of spermatozoa.'' We propose to use somewhat different 
language in Sec.  5.323(c)(3)(iii) as follows: ``Absence of spermatozoa 
proven by biopsy performed with the informed consent of the veteran.'' 
We note that the reference to ``a board'' in the current rule relates 
to VA's former procedure of having a board of three VA employees 
(including a physician) adjudicate claims. Because this is no longer 
VA's procedure, and because any physician or VA adjudicator may order a 
biopsy, we propose not to include that reference in Sec.  
5.323(c)(3)(iii). The phrase ``accepted by the veteran'' might be 
misconstrued to mean that a veteran may accept or reject biopsy 
results. The intent of Sec.  3.350(a)(1)(i)(c) was to clarify that 
undergoing a biopsy is voluntary and requires the veteran's informed 
consent.
    Proposed Sec.  5.323(c)(3)(iv) is a new provision that states that 
loss of use of a creative organ exists when medical evidence shows 
that, due to injury or disease, reproduction is not possible without 
medical intervention. Although essentially the definition of loss of 
use, this provision is based on VA's long-standing policy of awarding 
SMC if the medical evidence of record shows the loss of erectile power 
secondary to a disease process such as diabetes or multiple sclerosis 
in a male veteran or a condition of the reproductive tract, such as 
retrograde ejaculation or spermatozoa dumping into the bladder in a 
male veteran or the removal of a fallopian tube in a female veteran, 
that results in the loss of use of a creative organ.
    We also propose to include in Sec.  5.323(c)(3)(iv)(A) a statement 
reflecting long-standing VA policy that would allow for the award of 
SMC under 38 U.S.C. 1114(k) for the anatomical loss or loss of use of a 
creative organ even when one paired creative organ is capable of 
reproduction and the other is not. Both 38 U.S.C. 1114(k) and 38 CFR 
3.350(a) are silent regarding this type of medical condition. Adding 
this rule to the proposed regulation is beneficial to veterans.
    In Sec.  5.323(c)(4), we propose to state that payment of SMC would 
be proper under 38 U.S.C. 1114(k) for loss of use of a creative organ 
even in instances when a veteran uses prescription medications or 
mechanical devices to treat erectile dysfunction. Veterans should not 
be prevented from receiving SMC when they are receiving treatment that 
corrects an otherwise compensable condition to some degree, 
particularly since the improvement in the condition may only be partial 
and because the loss of use may return when the treatment is suspended.
    In Sec.  5.323(c)(5), we propose to state clearly that SMC under 38 
U.S.C. 1114(k) would be payable for a service-connected anatomical loss 
of a creative organ even if it is preceded by a nonservice-connected 
loss of use of that same organ. In addition, in proposed Sec.  
5.323(c)(5)(i) through (iv), we have included examples illustrating 
this principle. SMC should be granted even if the veteran was first 
unable to procreate for nonservice-connected reasons. Congress has 
provided two bases for SMC, anatomical loss or loss of use. 
Compensation for service-connected anatomical loss is authorized even 
though there was a preexisting,

[[Page 62011]]

nonservice-connected loss of use. See VAOPGCPREC 5-89, 54 FR 38033 
(Sept. 14, 1989). According to the legislative history of 38 U.S.C. 
1114(k), the purpose of SMC for anatomical loss or loss of use of a 
creative organ is to account for psychological factors as well as the 
loss of physical integrity. See id. Even where a veteran has previously 
suffered the anatomical loss of certain creative organs that results in 
the loss of use of the remaining creative organs, the psychological 
impact and the loss of physical integrity resulting from the later 
anatomical loss of one of the remaining organs cannot be ignored. An 
award of SMC under these circumstances is consistent with the terms of 
the statute and precedent opinions by VA's General Counsel. See 
VAOPGCPREC 93-90, 56 FR 1220 (Jan. 11, 1991).
    Proposed Sec.  5.323(c)(6) and (7) are derived from current Sec.  
3.350(a)(1)(iii) and (iv) respectively. We propose not to repeat the 
specific language from Sec.  3.350(a)(1)(ii) in part 5. Current Sec.  
3.350(a)(1)(ii) addresses the issue of establishing service connection 
for ``loss or loss of use'' of a creative organ resulting from wounds 
or other trauma sustained in service or resulting from operations in 
service for the relief of other conditions for which the creative organ 
becomes incidentally involved. This provision is redundant of the basic 
principles for establishing service connection for a disability, which 
are contained in current Sec.  3.303 and which the eventual part 5 
counterpart to that regulation will address.
    Current 38 CFR 3.350(a)(1)(iv) states:

    Atrophy resulting from mumps followed by orchitis in service is 
service connected. Since atrophy is usually perceptible within 1 to 
6 months after infection subsides, an examination more than 6 months 
after the subsidence of orchitis demonstrating a normal 
genitourinary system will be considered in determining rebuttal of 
service incurrence of atrophy later demonstrated. Mumps not followed 
by orchitis in service will not suffice as the antecedent cause of 
subsequent atrophy for the purpose of authorizing the benefit.

    In proposed Sec.  5.323(c)(7), we explicitly state the presumption 
implicit in the current rule, Sec.  3.350(a)(1)(iv), by using the word 
``presumed.'' We also propose not to repeat the third sentence of Sec.  
3.350(a)(1)(iv) because it is redundant.
    In proposed Sec.  5.323(d), we would define loss of use of the 
buttocks. This definition is derived from current Sec.  3.350(a)(3).
    In proposed Sec.  5.323(e) and (f), we would define deafness and 
aphonia. These definitions are derived from current Sec.  3.350(a)(5) 
and (6), respectively.

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

    Proposed Sec.  5.324 is derived from current Sec.  3.350(b). (Note 
that the part 5 counterpart to the second sentence of current Sec.  
3.350(b)(2) is contained at proposed Sec.  5.322(f), discussed above.)
    In proposed Sec.  5.324(a) and (b) we refer only to hands and feet, 
not to ``extremities.'' Although current Sec.  3.350(b)(1), refers to 
loss of use of an extremity, the context clearly indicates that 
``extremity'' refers only to a hand or foot. Section 3.350(a) only 
discusses the loss of use of hands or feet and current Sec.  
3.350(a)(2), which is referred to in Sec.  3.350(b)(1), only pertains 
to loss of use of a hand or foot.
    Section 1114(l) of title 38 of the United States Code provides for 
special monthly compensation (SMC) if a veteran is ``permanently 
bedridden.'' Current Sec.  3.350(b)(4) implements this rule by 
referring the reader to the criteria in current Sec.  3.352(a); 
however, but for its title, Sec.  3.352(a) defines ``bedridden'' 
without requiring permanence. It makes sense to define ``permanently 
bedridden'' in proposed Sec.  5.324, among the criteria for the benefit 
authorized by section 1114(l), because that is the only statute that 
contains such a criterion.
    For proposed Sec.  5.324, we would adapt the language of other 
current part 3 regulations that require permanence of a condition as a 
criterion of entitlement to a benefit. Part 3 contains three sections 
that characterize permanence of a condition. Section 3.350(i)(2) states 
that a veteran is permanently housebound because of service-connected 
disability or disabilities when he or she ``is substantially confined 
as a direct result of service-connected disabilities to his or her 
dwelling and the immediate premises or, if institutionalized, to the 
ward or clinical areas, and it is reasonably certain that the 
disability or disabilities and resultant confinement will continue 
throughout his or her lifetime.'' Section 3.351(d)(2), (e), and (f) 
state requirements for Improved Disability Pension, DIC, and Improved 
Death Pension, respectively, in substantially the same language.
    Section 3.340(b) states, ``Permanence of total disability will be 
taken to exist when such impairment is reasonably certain to continue 
throughout the life of the disabled person. * * * [B]ecoming 
permanently * * * bedridden constitutes permanent total disability.'' 
In Sec.  3.340(b), VA explicitly equates ``permanently bedridden'' with 
``permanence of total disability.'' In each of these sections, 
permanence is characterized by the continuance of the condition 
described throughout the life of the person concerned.
    Proposed Sec.  5.324(d) would authorize special monthly 
compensation to a veteran whose service-connected disability or 
disabilities require him or her to remain in bed, ``and it is 
reasonably certain that the confinement to bed will continue throughout 
his or her lifetime.'' This definition is simple, easy to apply, and 
consistent with VA's definitions of permanence in other similar 
regulations.
    Paragraphs (d) and (e) of proposed Sec.  5.324 are derived from 
current Sec.  3.350(b)(4) and (3), respectively. Though this reverses 
the order of the ``Need for aid and attendance'' and the ``Permanently 
bedridden'' paragraphs in Sec.  3.350, we have chosen to follow the 
sequence of these criteria in section 1114(l). Unless the veteran would 
be entitled to an additional allowance under 38 U.S.C. 1114(r) (see 
Sec.  5.332), it is more favorable to the veteran to base a grant of 
SMC under 38 U.S.C. 1114(l) on permanently bedridden status rather than 
the need for regular aid and attendance because SMC based on the need 
for regular aid and attendance might be reduced during hospitalization 
(see Sec.  3.552). In the current regulation, this information is 
contained in Sec.  3.350(b)(4), which pertains to permanently bedridden 
status. However, we provide the information to instruct VA personnel to 
consider whether a veteran is permanently bedridden if the veteran 
meets the requirements of the need for regular aid and attendance. We 
anticipate that it will be more helpful to VA personnel and other 
readers to place this information in proposed Sec.  5.324(e), which 
pertains to the need for regular aid and attendance. Furthermore, we 
have made the rule mandatory by changing ``should'' to ``will,'' to 
avoid confusion about whether or when to apply it.

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

    Proposed Sec.  5.325 is derived from those provisions in current 
Sec.  3.350(f)--specifically Sec.  3.350(f)(1)(i), (iii), and (vi) and 
Sec.  3.350(f)(2)(i)--that provide for entitlement to SMC at the 
intermediate rate between the rates established under 38 U.S.C. 1114(l) 
and (m). The statutory authority for Sec.  5.325 would be 38 U.S.C. 
1114(p). The introductory paragraph of proposed Sec.  5.325 clarifies 
current Sec.  3.350(f) as it pertains to rounding to the nearest dollar 
the intermediate rate between 38 U.S.C. 1114(l) and (m). The

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current rule, Sec.  3.350(f), requires VA to round ``to the nearest 
dollar.'' We propose to clarify the rule so that it requires VA to 
round ``down to the next lower dollar.'' This accords with the 
statutory requirement to round ``down to the nearest dollar.'' 38 
U.S.C. 1114(p). We have clarified the same point in Sec. Sec.  5.327, 
5.329, and 5.331, which relate to other SMC awards.
    Proposed Sec.  5.325(d) is based on current Sec.  3.350(f)(2)(i). 
We propose to add concentric contraction of the visual field reduced to 
5 degrees or less as an equivalent alternative to 5/200 visual acuity 
contained in the current regulation. Current Sec.  3.350(b)(2) provides 
the basis for treating visual acuity of 5/200 and a concentric 
contraction reduced to 5 degrees or less as equally disabling. Because 
the provisions of Sec.  3.350 will be divided in part 5, we propose to 
apply this principle wherever it is applicable in the proposed 
regulations.

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

    Proposed Sec.  5.326 is derived in part from current Sec.  
3.350(c). It is also derived from those provisions in current Sec.  
3.350(f)--specifically Sec.  3.350(f)(1)(ii), (iv), and (viii) and 
Sec.  3.350(f)(2)(ii)--that provide for entitlement to SMC at the rate 
authorized by 38 U.S.C. 1114(m).
    Proposed S