Special Monthly Compensation for Veterans With Traumatic Brain Injury, 93649-93653 [2016-30509]

Download as PDF Federal Register / Vol. 81, No. 245 / Wednesday, December 21, 2016 / Proposed Rules 93649 TABLE 1 TO PARAGRAPH (g) OF THIS AD—LIFE-LIMITED LANDING GEAR PARTS—Continued Part number Description 19919–000–00 .................................. Pin leg hinge ................................................................................................ (h) Replace Affected Parts The initial compliance for the replacement of affected parts is specified in paragraphs (h)(1) and (h)(2) of this AD. Replace affected parts with serviceable parts, in accordance with the Accomplishment Instructions of Embraer S.A. Alert Service Bulletin 120–32– A543, dated July 11, 2016. (1) Before the applicable safe-life limit identified in table 1 to paragraph (g) of this AD, or within 90 days after the effective date of this AD, whichever occurs later. (2) Within 90 days after the effective date of this AD for parts on which the current status is unknown. (i) Parts Installation Prohibition As of the effective date of this AD, no person may install on any airplane a main landing gear part or nose landing gear part having a part number identified in table 1 to paragraph (g) of this AD, if it has reached or exceeded its safe-life limit, or if its current status is unknown. asabaliauskas on DSK3SPTVN1PROD with PROPOSALS (j) No Alternative Actions and Intervals After accomplishing the revision required by paragraph (g) of this AD, no alternative actions (e.g., inspections) or intervals may be used unless the actions or intervals are approved as an alternative method of compliance in accordance with the procedures specified in paragraph (k)(1) of this AD. (k) Other FAA AD Provisions The following provisions also apply to this AD: (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM–116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch ACO, send it to ATTN: Todd Thompson, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, Washington 98057–3356; telephone (425) 227–1175; fax (425) 227–1149. Information may be emailed to: 9-ANM-116-AMOC-REQUESTS@faa.gov. Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/ certificate holding district office. (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Branch, ANM– 116, Transport Airplane Directorate, FAA; or ˆ the Agencia Nacional de Aviacao Civil ¸˜ VerDate Sep<11>2014 18:14 Dec 20, 2016 Jkt 241001 Safe-life limits (landings) (ANAC); or ANAC’s authorized Designee. If approved by the ANAC Designee, the approval must include the Designee’s authorized signature. (l) Related Information (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) ANAC AD No.: 2016–07–02, dated July 27, 2016, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA–2016–9507. (2) For service information identified in this NPRM, contact Empresa Brasileira de Aeronautica S.A. (Embraer), Technical Publications Section (PC 060), Av. Brigadeiro ˜ Faria Lima, 2170—Putim—12227–901 Sao Jose dos Campos—SP—BRASIL; telephone +55 12 3927–5852 or +55 12 3309–0732; fax +55 12 3927–7546; email distrib@ embraer.com.br; Internet http:// www.flyembraer.com. You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425–227–1221. Issued in Renton, Washington, on December 6, 2016. Dionne Palermo, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. 2016–30030 Filed 12–20–16; 8:45 am] BILLING CODE 4910–13–P DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 3 RIN 2900–AP23 Special Monthly Compensation for Veterans With Traumatic Brain Injury Department of Veterans Affairs. Proposed rule. AGENCY: ACTION: The Department of Veterans Affairs (VA) seeks to amend its adjudication regulations to add an additional benefit for veterans with residuals of traumatic brain injury (TBI). This benefit was enacted by the Veterans’ Benefits Act of 2010 and provides special monthly compensation for veterans with TBI who are in need of aid and attendance and, in the absence of such aid and attendance, would require hospitalization, nursing home care, or other residential institutional care. Prior to the law’s enactment, veterans with TBI were not SUMMARY: PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 90,000 eligible for this benefit unless they had a separate service-related disability that qualified under the law. DATES: Comments must be received on or before February 21, 2017. ADDRESSES: Written comments may be submitted through www.Regulations.gov; by mail or handdelivery to Director, Regulation Policy and Management (00REG), Department of Veterans Affairs, 810 Vermont Avenue NW., Room 1068, Washington, DC 20420; or by fax to (202) 273–9026. Comments should indicate that they are submitted in response to ‘‘RIN 2900– AP23—Special Monthly Compensation for Veterans with Traumatic Brain Injury.’’ Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1068, between the hours of 8:00 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 www.Regulations.gov. FOR FURTHER INFORMATION CONTACT: Eric G. Mandle, Policy Analyst, Regulations Staff (211D), Compensation Service, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461–9700. (This is not a toll-free telephone number.) SUPPLEMENTARY INFORMATION: On October 13, 2010, the Veterans’ Benefits Act of 2010, Public Law 111–275 (the Act) was signed into law. Section 601 of the Act amends 38 U.S.C. 1114, adding subsection (t) to include special monthly compensation (SMC) for veterans who as the result of serviceconnected disability, are in need of regular aid and attendance for the residuals of traumatic brain injury (TBI), and in the absence of such regular aid and attendance would require hospitalization, nursing home care, or other residential institutional care. The law grants an additional monetary allowance for veterans with residuals of TBI who require this higher level of care but would not otherwise qualify for the benefit under 38 U.S.C. 1114(r)(2). The amendment became effective October 1, 2011. VA administers SMC benefits under 38 CFR 3.350. Additionally, 38 CFR E:\FR\FM\21DEP1.SGM 21DEP1 93650 Federal Register / Vol. 81, No. 245 / Wednesday, December 21, 2016 / Proposed Rules asabaliauskas on DSK3SPTVN1PROD with PROPOSALS 3.352 provides the criteria to determine the need for aid and attendance and whether a claimant is permanently bedridden; 38 CFR 3.552 requires adjustments of allowance for aid and attendance when a beneficiary is hospitalized. Internal guidance has been published since April 4, 2011, instructing VA offices engaged in claims adjudication on how to implement the new SMC provision, but a formal update to VA’s adjudication regulations has not yet been published. I. VA Interpretation of Public Law 111– 275 Under this proposed rule, VA will directly implement 38 U.S.C. 1114(t), which states that an additional award of SMC is payable to a veteran who, as the result of service-connected disability, is in need of regular aid and attendance for the residuals of traumatic brain injury, is not eligible for additional compensation under 38 U.S.C. 1114(r)(2), and in the absence of such regular aid and attendance would require hospitalization, nursing home care, or other residential institutional care. VA would also make clear that a veteran entitled to this benefit shall be paid during periods he or she is not hospitalized at United States Government expense as if receiving the amount equal to the compensation authorized under 38 U.S.C. 1114(o) or the maximum rate authorized under 38 U.S.C. 1114(p) and, in addition to such compensation, a monthly allowance equal to the rate described in 38 U.S.C. 1114(r)(2). VA believes that there are two potential readings of the Act. Under the first, more restrictive reading, a veteran affected by section 1114(t) would receive only the rate noted under 38 U.S.C. 1114(r)(2), e.g., $2,983, in addition to any other rate of special monthly compensation the individual in question might happen to qualify for. Reading the Act in this way, however, would result in benefits that are less than the amount to which other veterans requiring the same level of care not related to TBI would be entitled. This is because the predicate rates built into section 1114(r), such as the rate authorized by subsection (o), the maximum rate authorized under subsection (p), or the intermediate rate authorized under subsections (n) and (o), will not typically be met for veterans suffering from TBI, rather than the other conditions enumerated in section 1114. Under the second, more liberal interpretation of section 1114(t), VA would pay veterans who meet the criteria of section 1114(t) the full VerDate Sep<11>2014 18:14 Dec 20, 2016 Jkt 241001 amount described by section 1114(r) (i.e., the rate authorized by subsection (o), which is also the maximum rate authorized under subsection (p), in addition to the allowance authorized by subsection (r)). The statutory language, viewed together with its purpose and legislative history, can be interpreted as establishing that Congress intended that veterans receiving the aid and attendance allowance authorized by subsection (r)(2) necessarily also qualify for the predicate rates described in subsection (r). VA finds that Congress’ intent was to enact a law that pays veterans of this class an amount equal to the compensation authorized under section 1114(o) or the maximum rate authorized under section 1114(p), plus the additional amount described under section 1114(r)(2). VA chose the rates permitted under section 1114(o) and (p) because those are the highest rates permitted under section 1114 and therefore would be the most favorable rates for this group of veterans requiring this higher level of care. Textually, subsection (r) generally preconditions receipt of the heightened aid and attendance allowance under either subsection (r)(1) or (r)(2) on receipt of one of the predicate rates identified in subsection (r), which include the rates specified in (o) and (p). Additionally, subsection (r) makes clear that a veteran is receiving that heightened allowance ‘‘in addition to’’ the special monthly compensation otherwise described in subsection (r). VA has long interpreted subsection (r) as reflecting the assumption that a veteran is necessarily in receipt of one of the predicate rates described in the body of subsection (r) whenever a veteran is in receipt of the heightened aid and attendance allowance under either subsection (r)(1) or (r)(2). This interpretation is reflected in VA’s current regulations. See 38 CFR 3.352(b)(1) (higher level of aid and attendance authorized by 38 CFR 3.350(h) requires that the veteran be ‘‘entitled to the compensation authorized under [subsection (o),] or the maximum rate of compensation authorized under [subsection (p)].’’). In support of this interpretation, VA notes that 38 U.S.C. 1114(r)(2) provides additional compensation to those veterans with certain service-connected disabilities who are in need of a higher level of care. The legislative history for section 601 of Public Law 111–275 indicates that subsection (t) is intended to provide additional compensation to veterans with TBI who do not have those qualifying service-connected disabilities and therefore are not PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 otherwise eligible for benefits under (r)(2), but still require a higher level of care comparable to what would otherwise be contemplated by the allowance provided by (r)(2). See S. Rep. No. 111–71, at 17 (2009) (discussing the intent to provide the ting (r)(2) rate of compensation as evidence of Congress’ intent to pay (t) aid and attendance at the rate commonly received by veterans entitled to (r)(2) payments. If Congress intended subsection (t) to confer a freestanding allowance, it is counterintuitive that Congress would link the allowance to (r)(2) rather than simply declaring that any veteran in need of regular aid and attendance for the residuals of TBI should receive a specified dollar amount. Instead, Congress chose to match the existing rate and aid and attendance requirements described under (r)(2). In so doing, Congress emphasized that the overall impairment and need for care are the same for those with TBI as they are for those with certain service-connected disabilities who require a higher level of aid and attendance. S. Rep. 111–71 at *18. VA’s interpretation of section 1114(t) would mean that the rate authorized by section 1114(o) and (p) is the ‘‘other compensation under this section’’ referenced in section 1114(t) for purposes of all cases under that section. We acknowledge that this interpretation imports a specfic meaning to the term ‘‘other compensation’’ that is not apparent on the face of that term. We find that this interpretation is warranted because interpreting the phrase ‘‘other compensation under this section’’ to refer only to other compensation for which the veteran independently qualifies would defeat the purpose of the legislation. The legislative history noted that 38 U.S.C. 1114(l) prescribes the basic monthy compensation amount for veterans in need of aid and attendance due to their serviceconnected disabilities and that section 1114(r)(2) prescribes an ‘‘additional’’ monthly amount payable for veterans in need of a higher level of care. S. Rep. 111–71 at *17. Congress thus recognized that the needs of veterans who qualify for the (r)(2) rate are met by payment of both a basic monthly SMC rate, which generally would be provided under subsections (l) through (p) of section 1114 and the heightened aid and attendance payment under (r)(2). Congress determined that legislation was needed to extend similar benefits to veterans with TBI because the provisions of section 1114 generally focus on physical disabilities and locomotion rather than cognitive or E:\FR\FM\21DEP1.SGM 21DEP1 Federal Register / Vol. 81, No. 245 / Wednesday, December 21, 2016 / Proposed Rules asabaliauskas on DSK3SPTVN1PROD with PROPOSALS psychological impairments associated with TBI. S. Rep. 111–71 at *17–18. For the reasons stated in the legislative history, cognitive disability due to TBI generally would not qualify for the basic monthly SMC rates prescribed in section 1114(l)–(p). As a result, if the term ‘‘other compensation under this section,’’ as used in section 1114(t) were construed to mean compensation for which the veteran otherwise qualifies without regard to section 1114(t), a substantial part of the benefits contemplated by (r)(2)—i.e., the basic monthly SMC rate—would be unavailable in most cases covered by section 1114(t). Such an interpretation would defeat the statute’s clear purpose in that it would, based on section 1114’s focus on physical disability, provide veterans covered by section 1114(t) with a monthly benefit well below the amount Congress has determined necessary to provide for the needs of veterans requiring a heightened level of care under (r)(2). Accordingly, we believe section 1114(t) is most properly construed to permit payment of both the ‘‘additional’’ amount specified in (r)(2) and the predicate SMC rate specified in section 1114(o) and (p). VA finds the language of the amended statute to be ambiguous, but has determined that Congress intended to provide veterans in need of aid and attendance due to TBI residuals the same level of compensation as veterans entitled to the section 1114(r)(2) rate. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842– 844 (1984) (if Congress has not addressed ‘‘the precise question at issue,’’ a court should defer to an administering agency’s construction of the statute so long as it is a ‘‘permissible’’ construction). VA believes its interpretation is the most logical one because it is unlikely that Congress would wish to bestow a lesser benefit on veterans with TBI than is applicable to veterans with certain service-connected disabilities that might otherwise qualify for the (r)(2) allowance, while simultaneously emphasizing that veterans with TBI may be in a functionally similar situation. This interpretation is also the most advantageous to veterans with TBI who require a higher level of care. II. Regulatory Amendment Mechanics This rulemaking proposes to amend § 3.350 by adding paragraph (j), proposes to amend § 3.352 by adding a new paragraph (b)(2) and revising the authority citation, and proposes to amend § 3.552(b) by adding a reference to 38 U.S.C. 1114(t) to paragraph (b)(2) and revising the authority citation. VerDate Sep<11>2014 18:14 Dec 20, 2016 Jkt 241001 Proposed paragraph (j) will set forth the general criteria prescribed by 38 U.S.C. 1114(t). Paragraph (j) would reference § 3.352 to provide guidance on determining the need for aid and attendance. Paragraph (j)(1) would provide that a veteran shall be entitled to the amount equal to the compensation authorized under 38 U.S.C. 1114(o) or the maximum rate authorized under 38 U.S.C. 1114(p) and, in addition to such compensation, a monthly allowance equal to the rate described in 38 U.S.C. 1114(r)(2) during periods he or she is not hospitalized at United States Government expense. In addition, to ensure consistency with current § 3.350(h), VA proposes to reference revised § 3.552(b)(2) under proposed § 3.350(j)(1). Section 3.552(b)(2) requires VA to discontinue the aid and attendance benefit following hospitalization at government expense. Proposed § 3.350(j)(2) would note that an allowance under proposed paragraph (j) would be paid in lieu of any allowance authorized by 38 U.S.C. 1114(r)(1). Section 3.352 governs the criteria for determining the need for aid and attendance and what is ‘‘permanently bedridden’’ for VA disability compensation purposes. VA proposes to amend § 3.352 to regulate entitlement to a higher level of aid and attendance allowance for residuals of TBI. Specifically, we propose to redesignate paragraphs (b)(2) through (b)(5) of § 3.352 as (b)(3) through (b)(6). Paragraph (b)(1)(iii) and newly redesignated paragraph (b)(4) of this section reference (b)(2). As such, those paragraphs would also be revised to reflect that (b)(2) would become (b)(3). This rulemaking also proposes to add a new paragraph (b)(2) to § 3.352 stating that a veteran is entitled to the higher level of aid and attendance allowance for residuals of TBI, as authorized by § 3.350(j), in lieu of the regular aid and attendance allowance. Entitlement would be found when the veteran meets the requirements for entitlement to the regular aid and attendance allowance in paragraph (a) of the section and when the veteran needs a higher level of care (as defined in redesignated paragraph (b)(3) of the section) than is required to establish entitlement to the regular aid and attendance allowance, and in the absence of the provision of such higher level of care would require hospitalization, nursing home care, or other residential institutional care. As previously discussed, VA has determined that Congress intended 38 U.S.C. 1114(t) to provide total compensation equal to the total rate paid after factoring total compensation PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 93651 paid in (r)(2) cases, who also receive payment under subsections (o) or (p). VA therefore proposes to apply the same definition of a higher level of care when determining entitlement under proposed § 3.350(j) as VA applies under § 3.350(h). Specifically, VA proposes to require that veterans entitled to SMC under section 1114(t) establish entitlement to the regular aid and attendance allowance in paragraph (a) of § 3.352, as well as establish a requirement for a higher level of care, where, in the absence of the higher level of care, the veteran would require hospitalization, nursing home care, or other residential institutional care. These requirements mirror the current requirements for entitlement under § 3.350(h) and § 3.352(b). We would clarify in § 3.352(b)(2)(i) and (ii) that the need for this higher level of aid and attendance must be as a result of service-connected residuals of traumatic brain injury. This requirement is consistent with the statutory language which requires that the veteran ‘‘as a result of service-connected disability, is in need of regular aid and attendance for the residuals of [TBI].’’ While the statutory language could be read to allow entitlement to section 1114(t) compensation to those veterans with any service-connected disability that also suffer from TBI residuals, VA believes that the phrase ‘‘as a result of’’ indicates Congress intended that the need for a higher level of aid and attendance for TBI residuals to be due to a service-connected disability. Further, the legislative history is clear that Congress intended section 1114(t) compensation to be provided to those veterans suffering from serviceconnected residuals of TBI. See Chevron, supra; see S. Rep. No. 111–71, at 17 (2009) (discussing that the committee bill ‘‘would allow veterans suffering from severe TBIs to receive the highest level of aid and attendance benefits from VA’’). We would also amend the authority citation for § 3.352(b) to add section 1114(t). Lastly, VA proposes to amend 38 CFR 3.552(b)(2). Section 3.552 regulates adjustments of allowance for aid and attendance. Specifically, paragraph (b)(2) states that ‘‘[w]hen a veteran is hospitalized at the expense of the United States Government, the additional aid and attendance allowance authorized by 38 U.S.C. 1114(r)(1) or (2) will be discontinued . . .’’. To ensure consistency in its regulations, and to implement the conforming amendment of the Act, VA is amending that paragraph to include 38 U.S.C. 1114(t). This amendment is supported by the E:\FR\FM\21DEP1.SGM 21DEP1 93652 Federal Register / Vol. 81, No. 245 / Wednesday, December 21, 2016 / Proposed Rules asabaliauskas on DSK3SPTVN1PROD with PROPOSALS plain language of the statute, which states ‘‘[s]ubject to section 5503(c) of this title.’’ Section 5503(c) of title 38 United States Code governs hospitalization of veterans and states, in effect, the rule we propose to establish here. We would also amend the authority citation for § 3.552(b). The current authority citation cites 38 U.S.C. 5503(e); however, the Veterans Education and Benefits Expansion Act of 2001, Public Law 107–103, 204(a), 115 Stat. 990, amended section 5503 by redesignating section 5503(e) as section 5503(c). Therefore, we would revise the authority citation to reflect the accurate legal authority as 38 U.S.C. 5503(c). 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’’ requiring review by the Office of Management and Budget (OMB), unless OMB waives such review, 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. VA’s impact analysis can be found as a supporting document at http://www.regulations.gov, usually VerDate Sep<11>2014 18:14 Dec 20, 2016 Jkt 241001 within 48 hours after the rulemaking document is published. Additionally, a copy of this rulemaking and its impact analysis are available on VA’s Web site at http://www.va.gov/orpm/, by following the link for ‘‘VA Regulations Published From FY 2004 Through Fiscal Year to Date.’’ Dated: December 13, 2016. Jeffrey Martin, Office Program Manager, Office of Regulation Policy & Management, Office of the Secretary, Department of Veterans Affairs. For the reasons stated in the preamble, the Department of Veterans Affairs proposes to amend 38 CFR part 3 as set forth below: Regulatory Flexibility Act The Secretary hereby certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601–612). This proposed rule would directly affect only individuals and would not directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604. The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532, requires that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This proposed rule would have no such effect on State, local, and tribal governments, or on the private sector. Paperwork Reduction Act This proposed rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501– 3521). Catalog of Federal Domestic Assistance The Catalog of Federal Domestic Assistance number and title for the program affected by this document is 64.109, Veterans Compensation for Service-Connected Disability. 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. Gina S. Farrisee, Deputy Chief of Staff, Department of Veterans Affairs, approved this document on December 13, 2016, for publication. Frm 00011 Fmt 4702 Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation 1. The authority citation for part 3, subpart A continues to read as follows: ■ Authority: 38 U.S.C. 501(a), unless otherwise noted. 2. Amend § 3.350 to add paragraph (j) to read as follows: ■ § 3.350 Special monthly compensation ratings. * Unfunded Mandates PO 00000 PART 3—ADJUDICATION Sfmt 4702 * * * * (j) Special aid and attendance benefit for residuals of traumatic brain injury (38 U.S.C. 1114(t)). The special monthly compensation provided by 38 U.S.C. 1114(t) is payable to a veteran who, as the result of service-connected disability, is in need of regular aid and attendance for the residuals of traumatic brain injury, is not eligible for compensation under 38 U.S.C. 1114(r)(2), and in the absence of such regular aid and attendance would require hospitalization, nursing home care, or other residential institutional care. Determination of this need is subject to the criteria of § 3.352. (1) A veteran described in this paragraph (j) shall be entitled to the amount equal to the compensation authorized under 38 U.S.C. 1114(o) or the maximum rate authorized under 38 U.S.C. 1114(p) and, in addition to such compensation, a monthly allowance equal to the rate described in 38 U.S.C. 1114(r)(2) during periods he or she is not hospitalized at United States Government expense. (See § 3.552(b)(2) as to continuance following admission for hospitalization.) (2) An allowance authorized under 38 U.S.C. 1114(t) shall be paid in lieu of any allowance authorized by 38 U.S.C. 1114(r)(1). (Authority: 38 U.S.C. 501, 38 U.S.C. 1114(t)) 3. Amend § 3.352 by: a. Redesignating paragraphs (b)(2) through (b)(5) as (b)(3) through (b)(6); ■ b. In paragraph (b)(1)(iii), removing the phrase ‘‘paragraph (b)(2)’’ and in its place adding the phrase ‘‘paragraph (b)(3)’’; ■ c. Adding new paragraph (b)(2); ■ ■ E:\FR\FM\21DEP1.SGM 21DEP1 Federal Register / Vol. 81, No. 245 / Wednesday, December 21, 2016 / Proposed Rules d. In redesignated paragraph (b)(4), removing the phrase ‘‘paragraph (b)(2)’’ and in its place adding the phrase ‘‘paragraph (b)(3)’’; and ■ e. In the authority citation at the end of paragraph (b), adding ‘‘1114(t)’’. The addition and revision reads as follows: ■ § 3.352 Criteria for determining need for aid and attendance and ‘‘permanently bedridden.’’ * * * * (b)(1) * * * (2) A veteran is entitled to the higher level aid and attendance allowance authorized by § 3.350(j) in lieu of the regular aid and attendance allowance when all of the following conditions are met: (i) As a result of service-connected residuals of traumatic brain injury, the veteran meets the requirements for entitlement to the regular aid and attendance allowance in paragraph (a) of this section. (ii) As a result of service-connected residuals of traumatic brain injury, the veteran needs a ‘‘higher level of care’’ (as defined in paragraph (b)(3) of this section) than is required to establish entitlement to the regular aid and attendance allowance, and in the absence of the provision of such higher level of care the veteran would require hospitalization, nursing home care, or other residential institutional care. * * * (Authority: 38 U.S.C. 501, 1114(r)(2), 1114(t)) * * * * ■ 4. Amend § 3.552(b) by: ■ a. In paragraph (b)(2), adding the phrase ‘‘or 38 U.S.C. 1114(t)’’ after the phrase ‘‘authorized by 38 U.S.C. 1114(r)(1) or (2)’’; and ■ b. At the end of paragraph (b), revising the authority citation. The revision read as follows: § 3.552 Adjustment of allowance for aid and attendance. * * * * * asabaliauskas on DSK3SPTVN1PROD with PROPOSALS (Authority: 38 U.S.C. 5503(c)) * * * * * [FR Doc. 2016–30509 Filed 12–20–16; 8:45 am] BILLING CODE 8320–01–P VerDate Sep<11>2014 18:14 Dec 20, 2016 Jkt 241001 40 CFR Part 52 [EPA–R09–OAR–2016–0669; FRL–9956–67– Region 9] Determination of Attainment of the 2008 Ozone National Ambient Air Quality Standards; Mariposa County, California The Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: * * ENVIRONMENTAL PROTECTION AGENCY The Environmental Protection Agency (EPA) is proposing to determine that the Mariposa County, California Moderate Nonattainment Area (NAA) has attained the 2008 8-hour ozone National Ambient Air Quality Standards (NAAQS or ‘‘standards’’). This proposed determination is based on complete, quality-assured and certified data for 2013–2015. Preliminary data for 2016 are consistent with continued attainment of the standards in the Mariposa County NAA. If the determination is finalized as proposed, any unfulfilled obligations to submit revisions to the state implementation plan (SIP) related to attainment of the 2008 ozone standards for the Mariposa County NAA will be suspended for as long as the area continues to meet those standards. DATES: Any comments must arrive by January 20, 2017. ADDRESSES: Submit your comments, identified by Docket ID No. EPA–R09– OAR–2016–0669 at http:// www.regulations.gov, or via email to levin.nancy@epa.gov. For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, the EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the Web, cloud or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. SUMMARY: PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 93653 For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/ commenting-epa-dockets. FOR FURTHER INFORMATION CONTACT: Nancy Levin, EPA Region IX, (415) 972– 3848, levin.nancy@epa.gov. SUPPLEMENTARY INFORMATION: Throughout this document, whenever ‘‘we,’’ ‘‘us’’ or ‘‘our’’ is used, we mean the EPA. In the Rules and Regulations section of this Federal Register, we are making a determination that the Mariposa County, California Moderate NAA has attained the 2008 8-hour ozone NAAQS as a direct final rule without prior proposal because the Agency views this action as noncontroversial and anticipates no adverse comments. A detailed rationale for this determination of attainment is set forth in the direct final rule. If we receive adverse comments, however, we will publish a timely withdrawal of the direct final rule and address the comments in subsequent action based on this proposed rule. We do not plan to open a second comment period, so anyone interested in commenting should do so at this time. If we do not receive adverse comments, no further activity is planned. For further information, please see the direct final rule, which is located in the Rules and Regulations section of this Federal Register. Dated: December 2, 2016. Deborah Jordan, Acting Regional Administrator, Region IX. [FR Doc. 2016–30474 Filed 12–20–16; 8:45 am] BILLING CODE 6560–50–P LEGAL SERVICES CORPORATION 45 CFR Parts 1600, 1630, and 1631 Definitions; Cost Standards and Procedures; Purchasing and Property Management Legal Services Corporation. Proposed rule; Extension of comment period. AGENCY: ACTION: The Legal Services Corporation (‘‘LSC’’) issued a proposed rule in the Federal Register of October 28, 2016 [FR Doc. 2016–25831], concerning proposed amendments to its regulations governing definitions, cost standards and procedures, and purchasing and property management. This notice extends the comment period for 30 days to January 26, 2017. SUMMARY: E:\FR\FM\21DEP1.SGM 21DEP1

Agencies

[Federal Register Volume 81, Number 245 (Wednesday, December 21, 2016)]
[Proposed Rules]
[Pages 93649-93653]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30509]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AP23


Special Monthly Compensation for Veterans With Traumatic Brain 
Injury

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Veterans Affairs (VA) seeks to amend its 
adjudication regulations to add an additional benefit for veterans with 
residuals of traumatic brain injury (TBI). This benefit was enacted by 
the Veterans' Benefits Act of 2010 and provides special monthly 
compensation for veterans with TBI who are in need of aid and 
attendance and, in the absence of such aid and attendance, would 
require hospitalization, nursing home care, or other residential 
institutional care. Prior to the law's enactment, veterans with TBI 
were not eligible for this benefit unless they had a separate service-
related disability that qualified under the law.

DATES: Comments must be received on or before February 21, 2017.

ADDRESSES: Written comments may be submitted through 
www.Regulations.gov; by mail or hand-delivery to Director, Regulation 
Policy and Management (00REG), Department of Veterans Affairs, 810 
Vermont Avenue NW., Room 1068, Washington, DC 20420; or by fax to (202) 
273-9026. Comments should indicate that they are submitted in response 
to ``RIN 2900-AP23--Special Monthly Compensation for Veterans with 
Traumatic Brain Injury.'' Copies of comments received will be available 
for public inspection in the Office of Regulation Policy and 
Management, Room 1068, between the hours of 8:00 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 www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Eric G. Mandle, Policy Analyst, 
Regulations Staff (211D), Compensation Service, Department of Veterans 
Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461-9700. 
(This is not a toll-free telephone number.)

SUPPLEMENTARY INFORMATION: On October 13, 2010, the Veterans' Benefits 
Act of 2010, Public Law 111-275 (the Act) was signed into law. Section 
601 of the Act amends 38 U.S.C. 1114, adding subsection (t) to include 
special monthly compensation (SMC) for veterans who as the result of 
service-connected disability, are in need of regular aid and attendance 
for the residuals of traumatic brain injury (TBI), and in the absence 
of such regular aid and attendance would require hospitalization, 
nursing home care, or other residential institutional care. The law 
grants an additional monetary allowance for veterans with residuals of 
TBI who require this higher level of care but would not otherwise 
qualify for the benefit under 38 U.S.C. 1114(r)(2). The amendment 
became effective October 1, 2011.
    VA administers SMC benefits under 38 CFR 3.350. Additionally, 38 
CFR

[[Page 93650]]

3.352 provides the criteria to determine the need for aid and 
attendance and whether a claimant is permanently bedridden; 38 CFR 
3.552 requires adjustments of allowance for aid and attendance when a 
beneficiary is hospitalized. Internal guidance has been published since 
April 4, 2011, instructing VA offices engaged in claims adjudication on 
how to implement the new SMC provision, but a formal update to VA's 
adjudication regulations has not yet been published.

I. VA Interpretation of Public Law 111-275

    Under this proposed rule, VA will directly implement 38 U.S.C. 
1114(t), which states that an additional award of SMC is payable to a 
veteran who, as the result of service-connected disability, is in need 
of regular aid and attendance for the residuals of traumatic brain 
injury, is not eligible for additional compensation under 38 U.S.C. 
1114(r)(2), and in the absence of such regular aid and attendance would 
require hospitalization, nursing home care, or other residential 
institutional care. VA would also make clear that a veteran entitled to 
this benefit shall be paid during periods he or she is not hospitalized 
at United States Government expense as if receiving the amount equal to 
the compensation authorized under 38 U.S.C. 1114(o) or the maximum rate 
authorized under 38 U.S.C. 1114(p) and, in addition to such 
compensation, a monthly allowance equal to the rate described in 38 
U.S.C. 1114(r)(2).
    VA believes that there are two potential readings of the Act. Under 
the first, more restrictive reading, a veteran affected by section 
1114(t) would receive only the rate noted under 38 U.S.C. 1114(r)(2), 
e.g., $2,983, in addition to any other rate of special monthly 
compensation the individual in question might happen to qualify for. 
Reading the Act in this way, however, would result in benefits that are 
less than the amount to which other veterans requiring the same level 
of care not related to TBI would be entitled. This is because the 
predicate rates built into section 1114(r), such as the rate authorized 
by subsection (o), the maximum rate authorized under subsection (p), or 
the intermediate rate authorized under subsections (n) and (o), will 
not typically be met for veterans suffering from TBI, rather than the 
other conditions enumerated in section 1114.
    Under the second, more liberal interpretation of section 1114(t), 
VA would pay veterans who meet the criteria of section 1114(t) the full 
amount described by section 1114(r) (i.e., the rate authorized by 
subsection (o), which is also the maximum rate authorized under 
subsection (p), in addition to the allowance authorized by subsection 
(r)). The statutory language, viewed together with its purpose and 
legislative history, can be interpreted as establishing that Congress 
intended that veterans receiving the aid and attendance allowance 
authorized by subsection (r)(2) necessarily also qualify for the 
predicate rates described in subsection (r).
    VA finds that Congress' intent was to enact a law that pays 
veterans of this class an amount equal to the compensation authorized 
under section 1114(o) or the maximum rate authorized under section 
1114(p), plus the additional amount described under section 1114(r)(2). 
VA chose the rates permitted under section 1114(o) and (p) because 
those are the highest rates permitted under section 1114 and therefore 
would be the most favorable rates for this group of veterans requiring 
this higher level of care.
    Textually, subsection (r) generally preconditions receipt of the 
heightened aid and attendance allowance under either subsection (r)(1) 
or (r)(2) on receipt of one of the predicate rates identified in 
subsection (r), which include the rates specified in (o) and (p). 
Additionally, subsection (r) makes clear that a veteran is receiving 
that heightened allowance ``in addition to'' the special monthly 
compensation otherwise described in subsection (r). VA has long 
interpreted subsection (r) as reflecting the assumption that a veteran 
is necessarily in receipt of one of the predicate rates described in 
the body of subsection (r) whenever a veteran is in receipt of the 
heightened aid and attendance allowance under either subsection (r)(1) 
or (r)(2). This interpretation is reflected in VA's current 
regulations. See 38 CFR 3.352(b)(1) (higher level of aid and attendance 
authorized by 38 CFR 3.350(h) requires that the veteran be ``entitled 
to the compensation authorized under [subsection (o),] or the maximum 
rate of compensation authorized under [subsection (p)].'').
    In support of this interpretation, VA notes that 38 U.S.C. 
1114(r)(2) provides additional compensation to those veterans with 
certain service-connected disabilities who are in need of a higher 
level of care. The legislative history for section 601 of Public Law 
111-275 indicates that subsection (t) is intended to provide additional 
compensation to veterans with TBI who do not have those qualifying 
service-connected disabilities and therefore are not otherwise eligible 
for benefits under (r)(2), but still require a higher level of care 
comparable to what would otherwise be contemplated by the allowance 
provided by (r)(2). See S. Rep. No. 111-71, at 17 (2009) (discussing 
the intent to provide the ting (r)(2) rate of compensation as evidence 
of Congress' intent to pay (t) aid and attendance at the rate commonly 
received by veterans entitled to (r)(2) payments. If Congress intended 
subsection (t) to confer a freestanding allowance, it is 
counterintuitive that Congress would link the allowance to (r)(2) 
rather than simply declaring that any veteran in need of regular aid 
and attendance for the residuals of TBI should receive a specified 
dollar amount. Instead, Congress chose to match the existing rate and 
aid and attendance requirements described under (r)(2). In so doing, 
Congress emphasized that the overall impairment and need for care are 
the same for those with TBI as they are for those with certain service-
connected disabilities who require a higher level of aid and 
attendance. S. Rep. 111-71 at *18.
    VA's interpretation of section 1114(t) would mean that the rate 
authorized by section 1114(o) and (p) is the ``other compensation under 
this section'' referenced in section 1114(t) for purposes of all cases 
under that section. We acknowledge that this interpretation imports a 
specfic meaning to the term ``other compensation'' that is not apparent 
on the face of that term. We find that this interpretation is warranted 
because interpreting the phrase ``other compensation under this 
section'' to refer only to other compensation for which the veteran 
independently qualifies would defeat the purpose of the legislation. 
The legislative history noted that 38 U.S.C. 1114(l) prescribes the 
basic monthy compensation amount for veterans in need of aid and 
attendance due to their service-connected disabilities and that section 
1114(r)(2) prescribes an ``additional'' monthly amount payable for 
veterans in need of a higher level of care. S. Rep. 111-71 at *17. 
Congress thus recognized that the needs of veterans who qualify for the 
(r)(2) rate are met by payment of both a basic monthly SMC rate, which 
generally would be provided under subsections (l) through (p) of 
section 1114 and the heightened aid and attendance payment under 
(r)(2). Congress determined that legislation was needed to extend 
similar benefits to veterans with TBI because the provisions of section 
1114 generally focus on physical disabilities and locomotion rather 
than cognitive or

[[Page 93651]]

psychological impairments associated with TBI. S. Rep. 111-71 at *17-
18.
    For the reasons stated in the legislative history, cognitive 
disability due to TBI generally would not qualify for the basic monthly 
SMC rates prescribed in section 1114(l)-(p). As a result, if the term 
``other compensation under this section,'' as used in section 1114(t) 
were construed to mean compensation for which the veteran otherwise 
qualifies without regard to section 1114(t), a substantial part of the 
benefits contemplated by (r)(2)--i.e., the basic monthly SMC rate--
would be unavailable in most cases covered by section 1114(t). Such an 
interpretation would defeat the statute's clear purpose in that it 
would, based on section 1114's focus on physical disability, provide 
veterans covered by section 1114(t) with a monthly benefit well below 
the amount Congress has determined necessary to provide for the needs 
of veterans requiring a heightened level of care under (r)(2). 
Accordingly, we believe section 1114(t) is most properly construed to 
permit payment of both the ``additional'' amount specified in (r)(2) 
and the predicate SMC rate specified in section 1114(o) and (p).
    VA finds the language of the amended statute to be ambiguous, but 
has determined that Congress intended to provide veterans in need of 
aid and attendance due to TBI residuals the same level of compensation 
as veterans entitled to the section 1114(r)(2) rate. See Chevron, 
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-844 
(1984) (if Congress has not addressed ``the precise question at 
issue,'' a court should defer to an administering agency's construction 
of the statute so long as it is a ``permissible'' construction). VA 
believes its interpretation is the most logical one because it is 
unlikely that Congress would wish to bestow a lesser benefit on 
veterans with TBI than is applicable to veterans with certain service-
connected disabilities that might otherwise qualify for the (r)(2) 
allowance, while simultaneously emphasizing that veterans with TBI may 
be in a functionally similar situation. This interpretation is also the 
most advantageous to veterans with TBI who require a higher level of 
care.

II. Regulatory Amendment Mechanics

    This rulemaking proposes to amend Sec.  3.350 by adding paragraph 
(j), proposes to amend Sec.  3.352 by adding a new paragraph (b)(2) and 
revising the authority citation, and proposes to amend Sec.  3.552(b) 
by adding a reference to 38 U.S.C. 1114(t) to paragraph (b)(2) and 
revising the authority citation. Proposed paragraph (j) will set forth 
the general criteria prescribed by 38 U.S.C. 1114(t). Paragraph (j) 
would reference Sec.  3.352 to provide guidance on determining the need 
for aid and attendance. Paragraph (j)(1) would provide that a veteran 
shall be entitled to the amount equal to the compensation authorized 
under 38 U.S.C. 1114(o) or the maximum rate authorized under 38 U.S.C. 
1114(p) and, in addition to such compensation, a monthly allowance 
equal to the rate described in 38 U.S.C. 1114(r)(2) during periods he 
or she is not hospitalized at United States Government expense.
    In addition, to ensure consistency with current Sec.  3.350(h), VA 
proposes to reference revised Sec.  3.552(b)(2) under proposed Sec.  
3.350(j)(1). Section 3.552(b)(2) requires VA to discontinue the aid and 
attendance benefit following hospitalization at government expense. 
Proposed Sec.  3.350(j)(2) would note that an allowance under proposed 
paragraph (j) would be paid in lieu of any allowance authorized by 38 
U.S.C. 1114(r)(1).
    Section 3.352 governs the criteria for determining the need for aid 
and attendance and what is ``permanently bedridden'' for VA disability 
compensation purposes. VA proposes to amend Sec.  3.352 to regulate 
entitlement to a higher level of aid and attendance allowance for 
residuals of TBI. Specifically, we propose to redesignate paragraphs 
(b)(2) through (b)(5) of Sec.  3.352 as (b)(3) through (b)(6). 
Paragraph (b)(1)(iii) and newly redesignated paragraph (b)(4) of this 
section reference (b)(2). As such, those paragraphs would also be 
revised to reflect that (b)(2) would become (b)(3).
    This rulemaking also proposes to add a new paragraph (b)(2) to 
Sec.  3.352 stating that a veteran is entitled to the higher level of 
aid and attendance allowance for residuals of TBI, as authorized by 
Sec.  3.350(j), in lieu of the regular aid and attendance allowance. 
Entitlement would be found when the veteran meets the requirements for 
entitlement to the regular aid and attendance allowance in paragraph 
(a) of the section and when the veteran needs a higher level of care 
(as defined in redesignated paragraph (b)(3) of the section) than is 
required to establish entitlement to the regular aid and attendance 
allowance, and in the absence of the provision of such higher level of 
care would require hospitalization, nursing home care, or other 
residential institutional care.
    As previously discussed, VA has determined that Congress intended 
38 U.S.C. 1114(t) to provide total compensation equal to the total rate 
paid after factoring total compensation paid in (r)(2) cases, who also 
receive payment under subsections (o) or (p). VA therefore proposes to 
apply the same definition of a higher level of care when determining 
entitlement under proposed Sec.  3.350(j) as VA applies under Sec.  
3.350(h). Specifically, VA proposes to require that veterans entitled 
to SMC under section 1114(t) establish entitlement to the regular aid 
and attendance allowance in paragraph (a) of Sec.  3.352, as well as 
establish a requirement for a higher level of care, where, in the 
absence of the higher level of care, the veteran would require 
hospitalization, nursing home care, or other residential institutional 
care. These requirements mirror the current requirements for 
entitlement under Sec.  3.350(h) and Sec.  3.352(b). We would clarify 
in Sec.  3.352(b)(2)(i) and (ii) that the need for this higher level of 
aid and attendance must be as a result of service-connected residuals 
of traumatic brain injury. This requirement is consistent with the 
statutory language which requires that the veteran ``as a result of 
service-connected disability, is in need of regular aid and attendance 
for the residuals of [TBI].'' While the statutory language could be 
read to allow entitlement to section 1114(t) compensation to those 
veterans with any service-connected disability that also suffer from 
TBI residuals, VA believes that the phrase ``as a result of'' indicates 
Congress intended that the need for a higher level of aid and 
attendance for TBI residuals to be due to a service-connected 
disability. Further, the legislative history is clear that Congress 
intended section 1114(t) compensation to be provided to those veterans 
suffering from service-connected residuals of TBI. See Chevron, supra; 
see S. Rep. No. 111-71, at 17 (2009) (discussing that the committee 
bill ``would allow veterans suffering from severe TBIs to receive the 
highest level of aid and attendance benefits from VA''). We would also 
amend the authority citation for Sec.  3.352(b) to add section 1114(t).
    Lastly, VA proposes to amend 38 CFR 3.552(b)(2). Section 3.552 
regulates adjustments of allowance for aid and attendance. 
Specifically, paragraph (b)(2) states that ``[w]hen a veteran is 
hospitalized at the expense of the United States Government, the 
additional aid and attendance allowance authorized by 38 U.S.C. 
1114(r)(1) or (2) will be discontinued . . .''. To ensure consistency 
in its regulations, and to implement the conforming amendment of the 
Act, VA is amending that paragraph to include 38 U.S.C. 1114(t). This 
amendment is supported by the

[[Page 93652]]

plain language of the statute, which states ``[s]ubject to section 
5503(c) of this title.'' Section 5503(c) of title 38 United States Code 
governs hospitalization of veterans and states, in effect, the rule we 
propose to establish here. We would also amend the authority citation 
for Sec.  3.552(b). The current authority citation cites 38 U.S.C. 
5503(e); however, the Veterans Education and Benefits Expansion Act of 
2001, Public Law 107-103, 204(a), 115 Stat. 990, amended section 5503 
by redesignating section 5503(e) as section 5503(c). Therefore, we 
would revise the authority citation to reflect the accurate legal 
authority as 38 U.S.C. 5503(c).

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'' requiring review by the Office of 
Management and Budget (OMB), unless OMB waives such review, 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. VA's impact analysis can be found as a 
supporting document at http://www.regulations.gov, usually within 48 
hours after the rulemaking document is published. Additionally, a copy 
of this rulemaking and its impact analysis are available on VA's Web 
site at http://www.va.gov/orpm/, by following the link for ``VA 
Regulations Published From FY 2004 Through Fiscal Year to Date.''

Regulatory Flexibility Act

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

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532, requires 
that agencies prepare an assessment of anticipated costs and benefits 
before issuing any rule that may result in the expenditure by State, 
local, and tribal governments, in the aggregate, or by the private 
sector, of $100 million or more (adjusted annually for inflation) in 
any one year. This proposed rule would have no such effect on State, 
local, and tribal governments, or on the private sector.

Paperwork Reduction Act

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

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance number and title for the 
program affected by this document is 64.109, Veterans Compensation for 
Service-Connected Disability.

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. Gina S. 
Farrisee, Deputy Chief of Staff, Department of Veterans Affairs, 
approved this document on December 13, 2016, for publication.

    Dated: December 13, 2016.
Jeffrey Martin,
Office Program Manager, Office of Regulation Policy & Management, 
Office of the Secretary, Department of Veterans Affairs.
    For the reasons stated in the preamble, the Department of Veterans 
Affairs proposes to amend 38 CFR part 3 as set forth below:

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity 
Compensation

0
1. The authority citation for part 3, subpart A continues to read as 
follows:

    Authority: 38 U.S.C. 501(a), unless otherwise noted.

0
2. Amend Sec.  3.350 to add paragraph (j) to read as follows:


Sec.  3.350  Special monthly compensation ratings.

* * * * *
    (j) Special aid and attendance benefit for residuals of traumatic 
brain injury (38 U.S.C. 1114(t)). The special monthly compensation 
provided by 38 U.S.C. 1114(t) is payable to a veteran who, as the 
result of service-connected disability, is in need of regular aid and 
attendance for the residuals of traumatic brain injury, is not eligible 
for compensation under 38 U.S.C. 1114(r)(2), and in the absence of such 
regular aid and attendance would require hospitalization, nursing home 
care, or other residential institutional care. Determination of this 
need is subject to the criteria of Sec.  3.352.
    (1) A veteran described in this paragraph (j) shall be entitled to 
the amount equal to the compensation authorized under 38 U.S.C. 1114(o) 
or the maximum rate authorized under 38 U.S.C. 1114(p) and, in addition 
to such compensation, a monthly allowance equal to the rate described 
in 38 U.S.C. 1114(r)(2) during periods he or she is not hospitalized at 
United States Government expense. (See Sec.  3.552(b)(2) as to 
continuance following admission for hospitalization.)
    (2) An allowance authorized under 38 U.S.C. 1114(t) shall be paid 
in lieu of any allowance authorized by 38 U.S.C. 1114(r)(1).


(Authority: 38 U.S.C. 501, 38 U.S.C. 1114(t))


0
3. Amend Sec.  3.352 by:
0
a. Redesignating paragraphs (b)(2) through (b)(5) as (b)(3) through 
(b)(6);
0
b. In paragraph (b)(1)(iii), removing the phrase ``paragraph (b)(2)'' 
and in its place adding the phrase ``paragraph (b)(3)'';
0
c. Adding new paragraph (b)(2);

[[Page 93653]]

0
d. In redesignated paragraph (b)(4), removing the phrase ``paragraph 
(b)(2)'' and in its place adding the phrase ``paragraph (b)(3)''; and
0
e. In the authority citation at the end of paragraph (b), adding 
``1114(t)''.
    The addition and revision reads as follows:


Sec.  3.352  Criteria for determining need for aid and attendance and 
``permanently bedridden.''

* * * * *
    (b)(1) * * *
    (2) A veteran is entitled to the higher level aid and attendance 
allowance authorized by Sec.  3.350(j) in lieu of the regular aid and 
attendance allowance when all of the following conditions are met:
    (i) As a result of service-connected residuals of traumatic brain 
injury, the veteran meets the requirements for entitlement to the 
regular aid and attendance allowance in paragraph (a) of this section.
    (ii) As a result of service-connected residuals of traumatic brain 
injury, the veteran needs a ``higher level of care'' (as defined in 
paragraph (b)(3) of this section) than is required to establish 
entitlement to the regular aid and attendance allowance, and in the 
absence of the provision of such higher level of care the veteran would 
require hospitalization, nursing home care, or other residential 
institutional care.
     * * *

(Authority: 38 U.S.C. 501, 1114(r)(2), 1114(t))

* * * * *
0
4. Amend Sec.  3.552(b) by:
0
a. In paragraph (b)(2), adding the phrase ``or 38 U.S.C. 1114(t)'' 
after the phrase ``authorized by 38 U.S.C. 1114(r)(1) or (2)''; and
0
b. At the end of paragraph (b), revising the authority citation.
    The revision read as follows:


Sec.  3.552  Adjustment of allowance for aid and attendance.

* * * * *

(Authority: 38 U.S.C. 5503(c))

* * * * *
[FR Doc. 2016-30509 Filed 12-20-16; 8:45 am]
BILLING CODE 8320-01-P