Schedule for Rating Disabilities; Evaluation of Amyotrophic Lateral Sclerosis, 78823-78824 [2011-32531]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 76, Number 244 (Tuesday, December 20, 2011)]
[Rules and Regulations]
[Pages 78823-78824]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-32531]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 4

RIN 2900-AN60


Schedule for Rating Disabilities; Evaluation of Amyotrophic 
Lateral Sclerosis

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) is amending its 
Schedule for Rating Disabilities by revising the disability evaluation 
criterion provided for amyotrophic lateral sclerosis (ALS) to provide 
an evaluation of 100 percent for any veteran with service-connected 
ALS. This change is necessary to adequately compensate veterans who 
suffer from this progressive, untreatable, and fatal disease. This 
change is intended to provide a total disability rating for any veteran 
with service-connected ALS.

DATES: Effective Date: This final rule is effective January 19, 2012.
    Applicability Date: This final rule applies to an application for 
benefits that:
     Is received by VA on or after January 19, 2012;
     Was received by VA before January 19, 2012 but has not 
been decided by a VA regional office as of that date;
     Is appealed to the Board of Veterans' Appeals on or after 
January 19, 2012;
     Was appealed to the Board before January 19, 2012 but has 
not been decided by the Board as of that date; or
     Is pending before VA on or after January 19, 2012 because 
the Court of Appeals for Veterans Claims vacated a Board decision on 
the application and remanded it for readjudication.

FOR FURTHER INFORMATION CONTACT: Nancy A. Copeland, Consultant, 
Regulations Staff (211D), Compensation and Pension Service, Veterans 
Benefits Administration, Department of Veterans Affairs, 810 Vermont 
Avenue NW., Washington, DC 20420, (202) 461-9428. (This is not a toll-
free number.)

SUPPLEMENTARY INFORMATION: On June 23, 2010, VA published in the 
Federal Register (75 FR 35711) a proposed rule that would revise the 
evaluation criterion for amyotrophic lateral sclerosis (ALS) in the VA 
Schedule for Rating Disabilities (diagnostic code 8017 in 38 CFR 
4.124a, the schedule of ratings for neurological conditions and 
convulsive disorders). The schedule previously provided a minimum 
evaluation of 30 percent for ALS; however, we determined that providing 
a 100-percent evaluation in all cases would obviate the need to 
reassess and reevaluate veterans with ALS repeatedly over a short 
period of time, as the condition worsens and inevitably and 
relentlessly progresses to total disability, and we proposed to 
increase the minimum evaluation for ALS to 100 percent.

Comments in Response to Proposed Rule

    A 30-day comment period ended July 23, 2010, and we received 
comments from 17 individual members of the general public and 1 from 
the Amyotrophic Lateral Sclerosis Association. The comments from the 
general public included 5 from veterans who have ALS, 3 from family 
members of veterans who have ALS or who died from ALS, and 1 from an 
individual raising claim-specific issues. Fifteen of the individual 
commenters expressed support for the rule. Two of the 15 said they 
support the rule ``wholeheartedly,'' and others used expressions such 
as ``it is imperative'' and ``it is absolutely vital.'' We are not 
making any changes to the final rule based on these supportive 
comments.
    In addition, the Amyotrophic Lateral Sclerosis (ALS) Association 
strongly endorsed the proposed rule. It stated that the establishment 
of an evaluation of 100 percent for ALS in all cases, plus the note 
under the evaluation criterion that recommends consideration of special 
monthly compensation (SMC) (an additional monthly amount of 
compensation that may be paid to veterans with certain serious 
disabilities) will help ensure that veterans with ALS are compensated 
appropriately. The ALS Association recommended that VA adopt special 
processing procedures to expedite ALS claims; however, VA has already 
established procedures for handling hardship cases involving seriously 
disabled veterans. Therefore, we are not making any changes to the 
final rule based on this comment.
    One commenter said that he would like to see the 100-percent rating 
for this disease given to all veterans, whether or not they are 
service-connected. However, under current law, 38 U.S.C. 1110 and 1131, 
VA's authority is limited to providing compensation to veterans with 
service-connected disabilities. Therefore, as VA is prohibited from 
taking the action the commenter requests, we are not making any changes 
to the final rule based on this comment.
    One commenter expressed the belief that revision of the VA rating 
schedule in the proposed rulemaking would be ``arbitrary,'' arguing 
that ALS was being evaluated differently from other neurological 
disorders. The comment expressed the belief that the proposed rule 
would ``rate multiple disabilities as a single disability'' when a 
possibility of entitlement to SMC exists, and that the proposed rule 
would ``produce decisions which result in payment at a rate lower than 
the veteran is entitled to now.''
    VA appreciates this comment; however, this rule does not change the 
procedure for evaluating service-connected disabilities. It only 
prescribes a higher minimum disability rating for ALS. VA remains 
required to provide an evaluation for all service-connected 
disabilities, regardless of whether a veteran already has received a 
100-percent disability rating for one. Therefore, all veterans will 
continue to receive thorough evaluations for all service-connected 
disabilities and disorders. All veterans who would be eligible for SMC 
or ancillary benefits before the promulgation of this regulation will 
remain so.
    As the proposed rule explained, ALS is a rapidly progressing 
disease, and establishment of a 100-percent evaluation for ALS will not 
adversely affect how ALS is evaluated for rating purposes. Although a 
veteran may receive compensation at the 100-percent rate based either 
on a 100-percent evaluation specifically for ALS or on a combined 
evaluation for ALS and other service-connected conditions, on either 
basis VA may consider the veteran for

[[Page 78824]]

varying levels of SMC, which is an amount of compensation in addition 
to amounts payable for service-connected disability, including 
disabilities rated 100-percent disabling, where applicable. Indeed, as 
amended, 38 CFR 4.124a includes a note to the rater: ``Consider the 
need for special monthly compensation.'' Furthermore, because this rule 
does not alter VA's procedures regarding evaluation of all disabilities 
and disorders, any ancillary benefits to which a veteran may be 
entitled will be preserved. We thus make no changes to the regulation 
based on this comment.
    One general public commenter raised claim-specific issues that are 
unrelated to this rulemaking. We thus are making no changes to the 
proposed rule based on this comment.
    Therefore, based on the rationale set forth in the proposed rule 
and this document, we are adopting the provisions of the proposed rule 
as a final rule with no changes.

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 will have no such effect on 
State, local, and tribal governments, or on the private sector.

Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, when 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, and other advantages; distributive impacts; 
and equity). Executive Order 13563 (Improving Regulation and Regulatory 
Review) emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
Executive Order 12866 (Regulatory Planning and Review) defines a 
``significant regulatory action,'' which requires review by the Office 
of Management and Budget (OMB), as ``any regulatory action that is 
likely to result in a rule that may: (1) Have an annual effect on the 
economy of $100 million or more or adversely affect in a material way 
the economy, a sector of the economy, productivity, competition, jobs, 
the environment, public health or safety, or State, local, or tribal 
governments or communities; (2) Create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
(3) Materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; or (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
this Executive Order.''
    The economic, interagency, budgetary, legal, and policy 
implications of this regulatory action have been examined and it has 
been determined not to be a significant regulatory action under 
Executive Order 12866.

Paperwork Reduction Act

    This document contains no provisions constituting a collection of 
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).

Regulatory Flexibility Act

    The Secretary hereby certifies that this final rule will not have a 
significant economic impact on a substantial number of small entities 
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. The rule could affect only VA beneficiaries and will not directly 
affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this 
rule is exempt from the initial and final regulatory flexibility 
analyses requirements of sections 603 and 604.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance program numbers and 
titles for this rule are as follows: 64.109, Veterans Compensation for 
Service-Connected Disability; and 64.110, Veterans Dependency and 
Indemnity Compensation for Service-Connected Death.

Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this 
document and authorized the undersigned to sign and submit the document 
to the Office of the Federal Register for publication electronically as 
an official document of the Department of Veterans Affairs. John R. 
Gingrich, Chief of Staff, Department of Veterans Affairs, approved this 
document on October 7, 2011, for publication.

List of Subjects in 38 CFR Part 4

    Disability benefits, Pensions, Veterans.

    Dated: December 15, 2011.
Robert C. McFetridge,
Director of Regulation Policy and Management, Office of the General 
Counsel, Department of Veterans Affairs.

    For the reasons set out in the preamble, 38 CFR part 4, subpart B, 
is amended as set forth below:

PART 4--SCHEDULE FOR RATING DISABILITIES

0
1. The authority citation for part 4 continues to read as follows:

    Authority:  38 U.S.C. 1155, unless otherwise noted.

Subpart B--Disability Ratings

0
2. In Sec.  4.124a, revise diagnostic code 8017 to read as follows:


Sec.  4.124a  Schedule of ratings--neurological conditions and 
convulsive disorders.

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                                                                 Rating
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                                * * * * *
8017 Amyotrophic lateral sclerosis...........................        100
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    Note:  Consider the need for special monthly compensation.

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[FR Doc. 2011-32531 Filed 12-19-11; 8:45 am]
BILLING CODE 8320-01-P