Servicemembers' Group Life Insurance Traumatic Injury Protection Program Amendments, 50973-50989 [2020-15981]

Download as PDF Federal Register / Vol. 85, No. 161 / Wednesday, August 19, 2020 / Proposed Rules compliance times specified in, and in accordance with, European Union Aviation Safety Agency (EASA) AD 2020–0115, dated May 20, 2020 (‘‘EASA AD 2020–0115’’). Accomplishing the maintenance or inspection program revision required by this paragraph terminates the requirements of paragraph (g) of this AD. (j) Exceptions to EASA AD 2020–0115 (1) The requirements specified in paragraphs (1) and (2) of EASA AD 2020– 0115 do not apply to this AD. (2) Paragraph (3) of EASA AD 2020–0115 specifies revising ‘‘the approved AMP’’ within 12 months after its effective date, but this AD requires revising the existing maintenance or inspection program, as applicable, to incorporate the ‘‘limitations, tasks and associated thresholds and intervals’’ specified in paragraph (3) of EASA AD 2020–0115 within 90 days after the effective date of this AD. (3) The initial compliance time for doing the tasks specified in paragraph (3) of EASA AD 2020–0115 is at the applicable ‘‘associated thresholds’’ specified in paragraph (3) of EASA AD 2020–0115, or within 90 days after the effective date of this AD, whichever occurs later. (4) The provisions specified in paragraphs (4) and (5) of EASA AD 2020–0115 do not apply to this AD. (5) The ‘‘Remarks’’ section of EASA AD 2020–0115 does not apply to this AD. (k) New Provisions for Alternative Actions or Intervals After the maintenance or inspection program has been revised as required by paragraph (i) of this AD, no alternative actions (e.g., inspections) or intervals are allowed unless they are approved as specified in the provisions of the ‘‘Ref. Publications’’ section of EASA AD 2020– 0115. jbell on DSKJLSW7X2PROD with PROPOSALS (l) Terminating Actions for Certain Requirements in AD 2010–26–05 Accomplishing the actions required by paragraph (g) or (i) of this AD terminates the requirements of paragraph (g)(1) of AD 2010– 26–05, for Dassault Aviation Model MYSTERE–FALCON 900 airplanes. (m) Other FAA AD Provisions The following provisions also apply to this AD: (1) Alternative Methods of Compliance (AMOCs): The Manager, Large Aircraft Section, International Validation Branch, 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 Large Aircraft Section, International Validation Branch, send it to the attention of the person identified in paragraph (n)(4) of this AD. Information may be emailed to: 9-AVS-AIR730-AMOC@faa.gov. (i) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager VerDate Sep<11>2014 16:13 Aug 18, 2020 Jkt 250001 of the local flight standards district office/ certificate holding district office. (ii) AMOCs approved previously for AD 2019–23–05 are approved as AMOCs for the corresponding provisions of EASA AD 2020– 0115 that are required by paragraph (i) of this AD. (2) Contacting the Manufacturer: For any requirement in this AD to obtain instructions from a manufacturer, the instructions must be accomplished using a method approved by the Manager, Large Aircraft Section, International Validation Branch, FAA; or EASA; or Dassault Aviation’s EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature. (n) Related Information (1) For information about EASA AD 2020– 0115, contact the EASA, Konrad-AdenauerUfer 3, 50668 Cologne, Germany; phone: +49 221 8999 000; email: ADs@easa.europa.eu; internet: www.easa.europa.eu. You may find this EASA AD on the EASA website at https://ad.easa.europa.eu. (2) For Dassault service information identified in this proposed AD, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; phone: 201–440–6700; internet: http://www.dassaultfalcon.com. (3) You may view this material at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206–231–3195. This material may be found in the AD docket on the internet at https:// www.regulations.gov by searching for and locating Docket No. FAA–2020–0778. (4) For more information about this AD, contact Tom Rodriguez, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206–231–3226; email: tom.rodriguez@ faa.gov. Issued on August 13, 2020. Lance T. Gant, Director, Compliance & Airworthiness Division, Aircraft Certification Service. [FR Doc. 2020–18026 Filed 8–18–20; 8:45 am] BILLING CODE 4910–13–P DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 9 RIN 2900–AQ53 Servicemembers’ Group Life Insurance Traumatic Injury Protection Program Amendments Department of Veterans Affairs. Proposed rule. AGENCY: ACTION: The Department of Veterans Affairs (VA) proposes to amend its regulations that govern the Servicemembers’ Group Life Insurance SUMMARY: PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 50973 (SGLI) Traumatic Injury Protection (TSGLI) program, to clarify the eligibility criteria, add definitions, and explain the application and appeals processes, including the submission of supporting evidence and the interaction between the administrative appeals process and a Federal lawsuit on a claim. VA proposes to recodify the definitions in the current regulation that are pertinent to the schedule of losses, revise existing definitions, and add new definitions. VA would add a new regulation to codify the text at the beginning of the schedule of losses, recodify that schedule, and amend the criteria for certain losses in the schedule. This rulemaking also responds to a petition for rulemaking. DATES: Comments must be received on or before October 19, 2020. ADDRESSES: Written comments may be submitted through http:// www.Regulations.gov; by mail or handdelivery to: Director, Office of Regulation Policy and Management (00REG), Department of Veterans Affairs, 810 Vermont Ave. NW, Room 1064, Washington, DC 20420; or by fax to (202) 273–9026. (This is not a toll-free telephone number.) Comments should indicate that they are submitted in response to ‘‘RIN 2900–AQ53 Servicemembers’ Group Life Insurance Traumatic Injury Protection Program Amendments.’’ Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1064, 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 telephone number.) In addition, during the comment period, comments may be viewed online through the Federal Docket Management System (FDMS) at http://www.Regulations.gov. FOR FURTHER INFORMATION CONTACT: Paul Weaver, Department of Veterans Affairs Insurance Center (310/290B), 5000 Wissahickon Avenue, Philadelphia, PA 19144, (215) 842–2000, ext. 4263. (This is not a toll-free number.) SUPPLEMENTARY INFORMATION: TSGLI provides up to $100,000 of traumatic injury coverage to all servicemembers enrolled in SGLI. TSGLI provides a financial benefit to seriously injured SGLI insureds to assist them with expenses incurred during long periods of recovery and rehabilitation. Since the program began issuing benefits on December 22, 2005, through June 30, 2019, over $1 billion has been paid to almost 18,500 injured servicemembers. TSGLI is modeled after commercial Accidental Death and Dismemberment E:\FR\FM\19AUP1.SGM 19AUP1 50974 Federal Register / Vol. 85, No. 161 / Wednesday, August 19, 2020 / Proposed Rules (AD&D) insurance coverage, specifically, the ‘‘dismemberment’’ portion of the coverage, although it deviates in some respects from the commercial AD&D model to account for the unique needs of military personnel. 70 FR 75,940 (Dec. 22, 2005). In developing these proposed amendments, VA considered industry practice and AD&D case law, the goals and purpose of the TSGLI authorizing statute, as well as analysis from a TSGLI Year-Ten Review and consultation with medical experts. jbell on DSKJLSW7X2PROD with PROPOSALS I. Year-Ten Review After ten years of program implementation, VA initiated a comprehensive review of TSGLI regulations to assess proposals for improvements, clarify eligibility standards, identify opportunities for administrative and operational enhancements, and ensure consistency with congressional intent. VA reviewed approximately 1,850 TSGLI claims that had been adjudicated by the uniformed services and consulted with medical experts at 18 military, VA, and private medical facilities, including George Washington University Medical Center, Washington, DC; Navy Medical Center, San Diego, California; San Antonio Military Medical Center, San Antonio, Texas; University of Pennsylvania Hospital, Philadelphia, Pennsylvania; VA Amputation System of Care, VA Medical Center, Richmond, Virginia; VA Medical Center, Bay Pines, Florida; VA Polytrauma Center, Tampa, Florida; Walter Reed National Military Medical Center, Bethesda, Maryland; and Moss Rehabilitation Research Institute, Elkins Park, Pennsylvania (‘‘experts’’). Areas addressed by the review include loss standards, application and appeals processes, forms, program exclusions, and definitions. A copy of the review can be found at https:// www.benefits.va.gov/INSURANCE/docs/ TSGLI_YTR.pdf. This comprehensive program review served as the basis for many aspects of this proposed rulemaking. While VA was conducting the YearTen Review, a petition for rulemaking was submitted to the Secretary of Veterans Affairs on March 16, 2015. The petition is addressed in this notice of proposed rulemaking, which serves as the Secretary’s response to the petition. II. Proposed Amendments to § 9.20 A. New § 9.20(b)—Qualifying Traumatic Events VA proposes to restructure current § 9.20(b)(1) and to add new qualifying traumatic events. VerDate Sep<11>2014 16:13 Aug 18, 2020 Jkt 250001 New paragraph (b)(1)(A)–(C) would incorporate the material in current § 9.20(b)(1) that defines a traumatic event to include damage caused by ‘‘application of external force, violence, chemical, biological, or radiological weapons’’ and ‘‘accidental ingestion of a contaminated substance.’’ As explained below, VA would add a definition of ‘‘external force’’ in new § 9.20(e)(6)(iv) and ‘‘ingestion’’ in new § 9.20(e)(6)(v). New paragraph (b)(1)(D) would add exposure to low environmental temperatures, excessive heat, and documented non-penetrating blast waves as traumatic events based upon evidence showing increased occurrence of traumatic injuries resulting from such exposures. The incidence of heat illnesses in the uniformed services had risen between 2014 and 2018 creating a ‘‘significant and persistent threat to both the health of U.S. military members and the effectiveness of military operations.’’ Armed Forces Health Surveillance Branch, Update: Heat Illness, Active Component, U.S. Armed Forces, 2018, 26 Med. Surveillance Monthly Rep. 15, 19 (2019). Injury from cold weather increased among military troops by 19.6% in 2017–2018 compared to 2016– 2017. Armed Forces Health Surveillance Branch, Update: Cold Weather Injuries, Active and Reserve Components, U.S. Armed Forces, July 2013–June 2018, 25 Med. Surveillance Monthly Rep. 10 (2018). Additionally, ‘‘cold injuries have continued to affect hundreds of service members each year because of exposure to cold and wet environments’’ and ‘‘[s]uch environmental conditions pose the threat of hypothermia, frostbite, and nonfreezing cold injury such as immersion injury.’’ Id. Whether in training or in forward operating locations, the risk of exposure to extreme temperatures can result in severe traumatic injuries, including amputations or coma. Finally, many servicemembers develop traumatic brain injury (TBI) from the effects of blast waves. Ralph G. DePalma, M.D., et al., Blast Injuries, 352 New Eng. J. of Med. 1335–1342 (2005); David S. Plurad, Blast Injury, 176 Mil. Med. 276, 281 (2011). VA also proposes to state in new paragraph (b)(1)(E) that an insect bite or sting or animal bite would qualify as a traumatic event. We are adding such bites because they involve application of an external force to the body that transmits an allergen or poison into the body. See Hargett v. Jefferson Standard Life Ins. Co., 128 S.E.2d 26, 31 (N.C. 1962); Omberg v. U.S. Mut. Ass’n, 40 S.W. 909, 910 (Ky. Ct. App. 1897). PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 B. New § 9.20(c)—Qualifying Traumatic Injury VA proposes to recodify current § 9.20(c)(3) as new § 9.20(c)(4) and to add new paragraph (c)(3), which would state that anaphylaxis caused by a bug bite or sting or animal bite is a traumatic injury. VA is proposing to add anaphylaxis because this harm occurs immediately after such a sting or bite. This would be consistent with case law finding that an allergic reaction is covered under AD&D policies because it is not a disease. See Escoe v. Metro. Life Ins. Co., 35 N.Y.S.2d 833, 834 (N.Y. Sup. Ct. 1942) (death from allergy to sulfapyridine given to treat pneumonia was accident, not disease); Berkowitz v. N.Y. Life Ins. Co., 10 N.Y.S.2d 106, 111 (N.Y. App. Div. 1939) (‘‘mere predisposing tendency cannot be held as a matter of law to be an infirmity or disease’’); Crisler v. Unum Ins. Co. of Am., 233 SW3d 658, 663 (Ark. 2006) (allergic reaction to injection of antibiotic was not disease). C. New § 9.20(d)—Eligibility Requirements 1. New § 9.20(d)(2)—Causation Section 1980A(c)(1) of title 38, United States Code, states that a qualifying loss must ‘‘result[ ] directly from a traumatic injury . . . and from no other cause.’’ VA codified this requirement in current 38 CFR 9.20(d)(2). In addition, current 38 CFR 9.20(e)(4) states that a loss is not covered if it results from a physical or mental illness or disease or mental disorder, ‘‘whether or not caused by a traumatic injury,’’ other than the exceptions noted in paragraph (e)(4)(i). VA proposes to amend current § 9.20(d)(2) to restate the statutory requirement that a scheduled loss must ‘‘result directly from a traumatic injury . . . and from no other cause.’’ Some courts have interpreted this phrase in AD&D and Employee Retirement Income Security Act case law to mean that a loss is not covered if a preexisting condition or disease ‘‘substantially contributed’’ to the loss. See, e.g., Dixon v. Life Ins. Co. of N. Am., 389 F.3d 1179, 1184 (11th Cir. 2004); Ganapolsky v. Boston Mut. Life Ins. Co., 138 F.3d 446, 448 (1st Cir. 1998); House v. Life Ins. Co. of N. Am., 399 F. Supp. 2d 1254, 1264– 65 (N.D. Ala. 2005); Danz v. Life Ins. Co. of N. Am., 215 F. Supp. 2d 645, 652 (D. Md. 2002) (citing Quesinberry v. Life Ins. Co. of N. Am., 987 F.2d 1017, 1028 (4th Cir. 1993) (en banc)). Based upon this case law, we propose to add paragraph (d)(2)(A), which would explain that, under this standard, a scheduled loss does not result directly from a traumatic injury and no other E:\FR\FM\19AUP1.SGM 19AUP1 Federal Register / Vol. 85, No. 161 / Wednesday, August 19, 2020 / Proposed Rules cause if a pre-existing disease, illness, or condition substantially contributed to the loss. Thus, for example, if a member suffers a qualifying loss such as leg amputation and the member also suffers from a pre-existing condition such as diabetes, the member would not be eligible for TSGLI if the pre-existing diabetes substantially contributed to the amputation of the leg. We also propose to state in § 9.20(d)(2)(A) that a scheduled loss does not result directly from a traumatic injury and no other cause if a postservice injury substantially contributes to the loss. For example, if a member suffers a leg injury in service and a postservice injury to the same leg, and the member’s leg is then amputated, the member would not be eligible for TSGLI if the post-service leg injury substantially contributed to the amputation. VA also proposes to add new paragraph (d)(2)(B) to clarify that a scheduled loss is a direct result of a traumatic injury if the loss is caused by a diagnostic procedure or a medical or surgical procedure that was used to treat the traumatic injury. Ins. Co. of N. Am. v. Thompson, 381 F.2d 677, 681 (9th Cir. 1967); 10 Couch on Insurance 3d § 141:78, at 141–113 (1998). For example, if a member is injured in a motor vehicle accident, undergoes surgery to treat a back injury suffered in the accident, and is paralyzed because of the surgery, the scheduled loss would be covered by TSGLI. We would make a corresponding change in new § 9.20(e)(3)(i)(C) to explain that TSGLI would be payable if a scheduled loss is caused by a diagnostic or medical or surgical procedure that was necessary to treat a traumatic injury. 2. New § 9.20(d)(4)—Two-Year Loss Period Current § 9.20(d)(4) requires a member to suffer a scheduled loss within two years of the traumatic injury. VA proposes to update the citation to the schedule of losses in § 9.20(d)(4) by deleting ‘‘paragraph (e)(7) of this section’’ and inserting instead ‘‘§ 9.21(c).’’ D. New § 9.20(e)—Scheduled Loss jbell on DSKJLSW7X2PROD with PROPOSALS 1. New § 9.20(e)(1)—Definition of Scheduled Loss VA proposes to update the reference to the schedule in current § 9.20(e)(1) by deleting ‘‘paragraph (e)(7) of this section’’ and inserting instead ‘‘§ 9.21(c).’’ VA also proposes to add ‘‘from no other cause’’ to the definition of scheduled loss to correspond to 38 U.S.C. 1980A(c)(1). VerDate Sep<11>2014 16:13 Aug 18, 2020 Jkt 250001 2. New § 9.20(e)(3)—Exclusions a. New § 9.20(e)(3)(i)(C)—Medical Procedures & Treatment Exclusion Consistent with new paragraph (d)(2)(B), VA proposes to add the phrase ‘‘unless the diagnostic procedure or medical or surgical treatment is necessary to treat a traumatic injury’’ to the end of the paragraph to clarify that a scheduled loss caused by a diagnostic procedure or medical or surgical treatment that is necessary to a traumatic injury would be eligible for a TSGLI payment. This is consistent with AD&D case law. Thompson, 381 F.2d at 681. b. New § 9.20(e)(3)(ii)—Felony Exclusion Current § 9.20(e)(3)(ii) specifies that TSGLI will not be paid if a member suffers a loss while committing or attempting to commit a felony. VA proposes to amend § 9.20(e)(3)(ii) to clarify that this exclusion applies if a member suffers a loss while committing an act that violated a penal law classifying it as a felony. This approach is consistent with AD&D industry practice. See Williams v. Life Ins. Co. of N. Am., 117 F. Supp. 3d 1206, 1216 (W.D. Wash. 2015) (citing Allstate Ins. Co. v. Raynor, 969 P.2d 510, 516 (Wash. Ct. App. 1999)). 3. New § 9.20(e)(6)—Definitions We propose to amend current § 9.20(e)(6) by recodifying paragraph (i)– (vi) and (xiii)–(xxix), which are relevant to the schedule of losses, in new § 9.21, adding definitions of the following terms that are relevant to § 9.20, and alphabetizing all the definitions in new paragraph (e)(6). For example, we propose to incorporate the definitions of ‘‘quadriplegia,’’ ‘‘paraplegia,’’ ‘‘hemiplegia,’’ ‘‘uniplegia,’’ and ‘‘complete and irreversible paralysis’’ in current § 9.20(e)(6)(i)–(v) and the definition of ‘‘permanent’’ in new § 9.21(a)(10) into the criteria for quadriplegia, paraplegia, hemiplegia, and uniplegia in new § 9.21(c)(4)–(7). In another example, we propose to incorporate the definitions in current § 9.20(e)(6)(xxi)–(xxix) and the definition of ‘‘permanent’’ in new § 9.21(a)(10) into the criteria for genitourinary losses in new § 9.21(c)(19). a. External Force VA would define ‘‘external force’’ in new § 9.20(e)(6)(iv) to mean a ‘‘sudden or violent impact from a source outside of the body that causes an unexpected impact and is independent of routine body motions such as twisting, lifting, PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 50975 bending, pushing, or pulling.’’ This proposed definition is consistent with AD&D practice that excludes such routine body activities as traumatic events. See e.g., Mutual Life Ins. Co. v. Hassing, 134 F.2d 714, 716 (10th Cir. 1943) (AD&D policy requiring bodily injury effected solely through external, violent, accidental means). For example, a sprained ankle suffered while running would not be considered a traumatic event because the damage was not caused by an external force but rather by stretching or tearing ligaments. https:// www.mayoclinic.org/diseasesconditions/sprained-ankle/symptomscauses/syc-20353225. However, a fall that causes a herniated disc would constitute a traumatic event because the damage to the body was caused by hitting the ground, i.e., an external force. b. Ingestion VA proposes to define ‘‘ingestion’’ in new § 9.20(e)(6)(v) to mean ‘‘to take into the gastrointestinal tract by means of the mouth.’’ This definition is consistent with the common meaning of the term. See United States v. Ten Cartons, 888 F. Supp. 381, 393 (E.D.N.Y. 1995), aff’d, 10 F.3d 285 (2d Cir. 1995). c. Medically Incapacitated VA proposes to define the term ‘‘medically incapacitated’’ in new paragraph (e)(6)(vii) to mean an ‘‘individual who has been determined by a medical professional to be physically or mentally impaired by physical disability, mental illness, mental deficiency, advanced age, chronic use of drugs or alcohol, or other causes that prevent sufficient understanding or capacity to manage his or her own affairs competently.’’ E. New § 9.20(f)—TSGLI Application Process VA proposes to recodify current § 9.20(f), which contains the schedule of losses, in new 38 CFR 9.21(c), recodify current § 9.20(h), which explains the TSGLI application process, as new § 9.20(f), and amend new paragraph (f). VA proposes to clarify in new § 9.20(f)(1)(i) that a medical professional must complete and sign Part B of the Application for TSGLI Benefits Form in addition to the requirement that a member complete and sign Part A of the Application for TSGLI Benefits Form, i.e., both Part A and Part B must be completed to initiate a claim for TSGLI benefits. VA would also explain that a member must submit evidence substantiating that the member suffered a traumatic injury and resulting loss. This clarification is intended to indicate E:\FR\FM\19AUP1.SGM 19AUP1 50976 Federal Register / Vol. 85, No. 161 / Wednesday, August 19, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS that Part A alone is insufficient documentation to support eligibility for TSGLI benefits. VA would also add a requirement to new § 9.20(f)(1)(ii) that, if a medical professional certifies in Part B of the Application for TSGLI Benefits Form that a member is medically incapacitated, the Form must be signed by a guardian; an agent or attorney acting under a valid Power of Attorney; military trustee as available, in that order. We propose to change ‘‘legally incapacitated’’ to ‘‘medically incapacitated’’ to make the regulation consistent with 38 U.S.C. 1980A(k)(1) and (2)(B), which provides for appointment of a fiduciary or trustee of a servicemember who is ‘‘medically incapacitated.’’ VA would also recodify § 9.20(h)(1)(iii) as § 9.20(f)(1)(iii). Finally, VA would recodify § 9.20(h)(2) as § 9.20(f)(2) and amend the paragraph by deleting the current citations to the schedule of losses and inserting citations to new § 9.21(c). F. New § 9.20(g)—Uniformed Service Decision on TSGLI Claim VA proposes to add a regulation explaining both who decides a TSGLI claim and the decision-making process, which would be codified as new § 9.20(g). Current § 9.20(g), which states that the uniformed service to which a member belongs certifies whether the member was insured under SGLI at the time of the traumatic injury and whether the member sustained a qualifying loss, would be recodified as new § 9.20(g)(1) with non-substantive changes. Paragraph (g)(2) would state that the uniformed service office may request additional evidence from the member if the record does not contain sufficient evidence to decide the claim. Paragraph (g)(3) would require the uniformed service office to consider all medical and lay evidence of record, including all evidence provided by the member, and determine its probative value. The probative value of medical evidence may depend upon whether a medical professional examined the servicemember; treated the member on an ongoing basis; provides relevant and objective evidence to support an opinion; or provides an opinion that is consistent with other evidence of record. The probative value of lay evidence may depend upon consistency with a member’s service records and other lay and medical evidence of record. Paragraph (g)(3) would also adopt the benefit of the doubt evidentiary standard for adjudication of TSGLI VerDate Sep<11>2014 16:13 Aug 18, 2020 Jkt 250001 claims. The Supreme Court has long recognized that the character of the veterans’ benefits statutes is strongly and uniquely pro-claimant. See, e.g., Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285 (1946) (liberally construing Selective Training and Service Act of 1940, 54 Stat. 885, 50 U.S.C. App. § 301, ‘‘for the benefit of those who left private life to serve their country in its hour of great need’’); Coffy v. Republic Steel Corp., 447 U.S. 191, 196 (1980); Brown v. Gardner, 513 U.S. 115, 118 (1994). Congress itself has recognized and preserved the unique character and structure of the veterans’ benefits system. When enacting the Veterans’ Judicial Review Act, Public Law 100–687, 102 Stat. 4105 (1988), Congress stated its expectation that VA would ‘‘resolve all issues by giving the claimant the benefit of any reasonable doubt.’’ H.R. Rep. No. 100–963, at 13 (1988), reprinted in 1988 U.S.C.C.A.N. 5782, 5794–95. Although TSGLI entitlement is adjudicated by the uniformed services not VA, we believe that the benefit of the doubt standard should similarly be applied to adjudication of entitlement to TSGLI, which provides benefits to members who were seriously injured while serving the United States and which VA administers on behalf of the uniformed services. 38 U.S.C. 1980A. In addition, the uniformed services apply the benefit of the doubt in determining a member’s unfitness for service because of physical disability and when evaluating members for compensable conditions. DoD Instruction 1332.18, App’x 2 to Encl. 3, para. 6.a.(2) and App’x 3 to Encl. 3, para. 7.i. (2014); see Army Reg. 635–40, para. 5–6.a. (2017) (benefit of doubt will be resolved in favor of member’s fitness for duty under presumption that member desires to be found fit for duty). The benefit of the doubt would apply only when the positive and negative evidence relating to the member’s TSGLI claim are approximately balanced. E.g., Ortiz v. Principi, 274 F.3d 1361, 1365–66 (Fed. Cir. 2001). If the preponderant evidence weighs against the member’s TSGLI claim, the evidence is not approximately balanced, and the benefit of the doubt rule would not resolve the issue in favor of the member because there is no doubt to be resolved. Id. New § 9.20(g)(4) would contain the first sentence of current paragraph (i)(1), which explains that notice of a decision on a TSGLI claim must include notice of appellate rights. VA would also state in new § 9.20(g)(4) that an adverse decision must include a statement of the reasons for the decision and a summary PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 of the evidence considered. See O’Neill v. United States, No. 11–2584, 2013 WL 6579039 (D. Col. Dec. 13, 2013) (citing Dickson v. Sec’y of Defense, 68 F.3d 1396 (D.C. Cir. 1995)). G. New § 9.20(h)—Appeal of TSGLI Decision VA proposes to recodify the rest of current § 9.20(i), which addresses appeals of TSGLI decisions, as new § 9.20(h) and would amend the regulation as explained below. New § 9.20(h)(1) would state that each uniformed service has established its own, three-tiered TSGLI appellate process, i.e., reconsideration, followed by a second-level appeal and then a third-level appeal. The paragraph would also make clear that persons appealing an eligibility determination to the uniformed services must utilize the appeal process of the uniformed service that issued the original decision. See, e.g., SECNAV Instruction 1770.4A, Encl. (1), para. 8. (2019) (following reconsideration by TSGLI branch-ofservice adjudicator and review by TSGLI Appeals Board, member may appeal to Board for Correction Naval Records). The names of the reviewing offices may differ among the uniformed services, and the proposed rules thus would use the generic terms ‘‘secondlevel’’ and ‘‘third-level’’ to describe the common appellate structure. The notice provided by the uniformed services under proposed § 9.20(g)(4) will identify the relevant second-level or third-level office of the uniformed service as appropriate. VA would also include a reference to paragraph (f)(1)(ii) and (iii) in paragraph (h)(1) for the current list of persons other than the member who may submit an appeal. New paragraph (h)(1)(A) would explain reconsideration, which is the first appellate tier. VA proposes to state in new paragraph (h)(1)(A)(i) that a member, or other person eligible to submit a claim under paragraph (f)(1)(ii) or (iii), initiates reconsideration of an eligibility determination, such as whether the loss occurred within 730 days of the traumatic injury, whether the member was insured under Servicemembers’ Group Life Insurance when the traumatic injury was sustained, or whether the injury was self-inflicted or whether a loss of hearing was total and permanent, by filing a written notice of appeal within one year of the eligibility decision with the office of the uniformed service identified in the decision. This amendment would also require that the request for reconsideration identify the issues for which reconsideration is sought. As a result, VA would delete E:\FR\FM\19AUP1.SGM 19AUP1 jbell on DSKJLSW7X2PROD with PROPOSALS Federal Register / Vol. 85, No. 161 / Wednesday, August 19, 2020 / Proposed Rules current paragraph (i)(2), which states that appeal of whether a member was insured under SGLI must be appealed to the Office of Servicemembers’ Group Life Insurance. Section 1980A(f) of title 38, United States Code, requires the Department of Defense or Secretary concerned to ‘‘certify’’ whether a member was ‘‘insured under [SGLI]’’ at the time of injury and ‘‘sustained a qualifying loss.’’ We believe that it would be consistent with this statute for the uniformed service to decide appeals of all issues including SGLI coverage. Proposed paragraph (h)(1)(A)(i) would also state that an appeal of an eligibility determination, such as whether a loss occurred within ‘‘730 days,’’ rather than ‘‘365 days’’ (as stated in current § 9.20(i)(1)), must be in writing. This change in the number of days would comport with 38 CFR 9.20(d)(4), which states that a scheduled loss must occur within two years of the traumatic injury and corrects an oversight in a 2007 TSGLI rulemaking. 72 FR 10362 (Mar. 8, 2007). New paragraph (h)(1)(A)(ii) would state that the uniformed service TSGLI office will reconsider the claim, including evidence submitted with the notice of appeal by or on behalf of the member that was not previously part of the record before the uniformed service, and decide the claim. New paragraph (h)(1)(B) would explain the second tier of appellate review. VA proposes to state in new paragraph (h)(1)(B)(i) that an appeal of a reconsideration decision is initiated by filing, with the second-level appeal office of the uniformed service within one year of the reconsideration decision, a written notice of appeal that identifies the issues being appealed. New paragraph (h)(1)(B)(ii) would state that the second-level appeal office will review the claim, including evidence submitted with the notice of appeal by or on behalf of the member that was not previously part of the record before the uniformed service, and decide the claim. New paragraph (h)(1)(C) would explain the third tier of appellate review. VA proposes to state in new paragraph (h)(1)(C)(i) that an appeal of a decision by the second-level appeal office is initiated by filing, with the third-level appeal office of the uniformed service within one year of the date of the decision by the secondlevel appeal office of the uniformed service, a written notice of appeal that identifies the issues being appealed. New paragraph (h)(1)(C)(ii) would state that the third-level appeal office will review the claim, including evidence submitted with the notice of appeal by VerDate Sep<11>2014 16:13 Aug 18, 2020 Jkt 250001 or on behalf of the member that was not previously part of the record before the uniformed service, and decide the claim. New paragraph (h)(2) would state that, if a timely notice of appeal seeking reconsideration of the initial decision by the uniformed service or seeking review of the decision by the second-level uniformed service appeal office is not filed, the initial decision by the uniformed service or the decision by the second-level uniformed service appeal office, respectively, shall become final, and the claim will not thereafter be readjudicated or allowed except as explained in new paragraph (h)(3). VA proposes in new paragraph (h)(3)(i) that, if new and material evidence is submitted with respect to a claim that has been finally disallowed, the uniformed service office will consider the evidence, determine its probative value, and readjudicate the claim. VA would define new and material evidence in paragraph (h)(3)(i) as ‘‘evidence that was not previously part of the record before the uniformed service, is not cumulative or redundant of evidence of record at the time of the prior decision and is likely to have a substantial effect on the outcome.’’ See 32 CFR 723.9 (defining new and material evidence for purposes of reconsideration of a final decision by Board for Correction of Naval Records); Jackson v. Mabus, 808 F.3d 933, 936 (D.C. Cir. 2015). VA proposes to add paragraph (h)(3)(ii), which would state that a finding that the evidence submitted is not new and material may be appealed using the process in paragraph (h)(1). VA would recodify current paragraph (i)(3) as new § 9.20(h)(4). New § 9.20(h)(4) would restate the sentence in current § 9.20(i)(3). VA also proposes to explain that a member who files suit in U.S. district court after an adverse initial decision on a TSGLI claim by a uniformed service would be precluded from filing an appeal with the uniformed service identified in the decision if the lawsuit is pending before a U.S. district court, U.S. court of appeals, or U.S. Supreme Court or the time for appeal or filing a petition for a writ of certiorari has not expired. Paragraph (h)(4) would also state that, if a member appeals a decision to a U.S. district court after filing an appeal with a uniformed service, the appeal with the uniformed service would be stayed if the lawsuit is pending before a U.S. district court, U.S. court of appeals, or U.S. Supreme Court or the time for appeal or a petition for a writ of certiorari has not expired. This amendment is intended to streamline PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 50977 the TSGLI appellate process and prevent multiple, concurrent reviews of TSGLI appeals. H. New § 9.20(i)—Payment of TSGLI VA would recodify current § 9.20(j) as new § 9.20(i). VA would delete the word ‘‘title’’ in the text preceding current § 9.20(j)(1) and would amend new paragraph (i)(1) to correspond to proposed § 9.20(f)(1)(ii). New paragraph (i)(1) would state that a member’s guardian, agent or attorney acting under a valid Power of Attorney, or trustee will be paid the TSGLI benefit if a medical professional has certified that the member is medically incapacitated in Part B of the Application for TSGLI Benefits Form. As explained above, we have changed ‘‘legally incapacitated’’ to ‘‘medically incapacitated’’ to make the regulation consistent with 38 U.S.C. 1980A(k)(1) and (2)(B). I. New § 9.20(j)—Administration of TSGLI Program VA would recodify current § 9.20(k) as new § 9.20(j). III. New § 9.21—Schedule of Losses VA proposes to recodify current §§ 9.21 and 9.22 as new §§ 9.22 and 9.23. VA also proposes add new § 9.21, which would: (1) Recodify certain definitions that are pertinent to the schedule of losses and are currently in § 9.20(e)(6) in new § 9.21(a) and amend certain definitions; (2) move criteria for certain losses from the definitions to the schedule of losses; (3) recodify the text preceding the current schedule as new § 9.21(b); (4) recodify the schedule of losses in current § 9.20(f) as new § 9.21(c); and (5) amend the criteria for certain losses. A. New § 9.21(a)—Definitions of Terms VA proposes to recodify definitions in current § 9.20(e)(6) that are relevant to the schedule in new § 9.21(a), amend certain existing definitions pertinent to the schedule, and add new definitions for terms not currently defined. In addition, current 38 CFR 9.20(e)(6)(i)– (iv) and (xiv)–(xxix) are in fact criteria for losses in the schedule rather than definitions. VA would therefore recodify these criteria in the schedule itself in new § 9.21(c) rather than define them in new § 9.21(a). This would also make it easier for adjudicators to decide claims because they could find all relevant criteria in the schedule. 1. Avulsion In new § 9.21(a)(5), VA would define the term ‘‘avulsion’’ for purposes of new § 9.21(c)(16) pertaining to facial reconstruction to mean a forcible E:\FR\FM\19AUP1.SGM 19AUP1 50978 Federal Register / Vol. 85, No. 161 / Wednesday, August 19, 2020 / Proposed Rules detachment or tearing of bone and/or tissue due to a penetrating injury. 2. Consecutive In new § 9.21(a)(6), VA would define ‘‘consecutive’’ to mean ‘‘to follow in uninterrupted succession.’’ This definition is consistent with the wellaccepted meaning of the term. Black’s Law Dictionary 304 (6th ed. 1990) (defining ‘‘consecutive’’ as ‘‘[s]uccessive; succeeding one another in regular order; to follow in uninterrupted succession’’); Hill v. Tenn. Rural Health Improvement Ass’n, 882 SW2d 801, 803 (Tenn. Ct. App. 1994). 3. Discontinuity Defect In new § 9.21(a)(7), VA proposes to define ‘‘discontinuity defect’’ pertaining to facial reconstruction under new § 9.21(c)(16) to mean the absence of bone and/or tissue from its normal bodily location, which interrupts the physical consistency of the face and impacts at least one of the following functions: Mastication, swallowing, vision, speech, smell, or taste. The requirement that a discontinuity defect must impact mastication, swallowing, vision, speech, smell, or taste is intended to provide TSGLI benefits to members who cannot perform key facial functions without replacement of the bone or tissue from another part of the body or manufactured bone or tissue. 4. Hospitalization VA proposes to recodify the definition of ‘‘hospitalization’’ in current § 9.20(e)(6)(xiii) at new § 9.21(a)(8) and to amend the definition to mean admission to a ‘‘hospital’’ as defined in 42 U.S.C. 1395x(e), which includes both inpatient critical care and inpatient rehabilitation facilities, or a ‘‘skilled nursing facility’’ under 42 U.S.C. 1395i– 3(a). Experts we consulted indicated that patients with severe physical injuries covered by the schedule of losses are usually treated in a hospital and then an inpatient rehabilitation or skilled nursing care. We therefore intend for the periods of hospitalization required by the schedule to continue if a member is receiving treatment in a hospital or skilled nursing facility. jbell on DSKJLSW7X2PROD with PROPOSALS 5. Inability To Carry Out Activities of Daily Living (ADLs) Congress specified in 38 U.S.C. 1980A(b)(1)(H) that the inability to carry out ADLs resulting from a TBI is a qualifying loss. In this rulemaking, VA proposes to recodify current § 9.20(e)(6)(vi) as new § 9.21(a)(9), amend the definition, and define terms used in the amended definition. VerDate Sep<11>2014 16:13 Aug 18, 2020 Jkt 250001 The term ‘‘inability to carry out the activities of daily living’’ is defined in 38 U.S.C. 1980A(b)(2)(D) and current 38 CFR 9.20(e)(6)(vi) as the ‘‘inability to independently perform at least’’ two of six functions. VA proposes to delete ‘‘independently’’ from the definition of ADL because it is subject to varying interpretations and to clarify the term by stating in new § 9.21(a)(9) that the inability to carry out activities of daily living means that a medical professional documents that a member is unable to perform two of the six functions without assistance from another person, even if the member uses accommodating equipment or adaptive behavior while performing the functions. In order to further explain this definition, VA proposes to define the terms ‘‘accommodating equipment,’’ ‘‘adaptive behavior,’’ and ‘‘assistance from another person’’ in new § 9.21(a)(1), (2), and (4), respectively. VA would define ‘‘accommodating equipment’’ in new paragraph (a)(1) to mean tools or supplies that enable a member to perform an ADL without assistance from another person, including, but not limited to, the following: wheelchair; walker or cane; reminder applications; Velcro clothing or slip-on shoes; grabber or reach extender; raised toilet seat; wash basin; shower chair; or shower or tub modifications such as wheelchair access or no-step access, grab-bar, or handle. VA proposes to define the term ‘‘adaptive behavior’’ in new paragraph (a)(2) to mean compensating skills that allow a member to perform an ADL without assistance from another person. VA proposes to define the term ‘‘assistance from another person’’ in new paragraph (a)(4) to mean that a member, even while using accommodating equipment or adaptive behavior, is nonetheless unable to perform an activity of daily living unless a person physically supports the member, is needed to be within arm’s reach of the member to provide assistance because the member’s ability fluctuates, or provides oral instructions to the member while the member attempts to perform the ADL. A medical professional must document that a member requires assistance from another person, even while the member is using accommodating equipment and/or adaptive behavior, to perform two of the six ADLs. VA also proposes to define each of the six functions in new § 9.21(a)(9)(A) through (F), as discussed below. These definitions are based primarily on the Katz Index of Independence in Activities of Daily Living, one of the most commonly used tools to assess PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 basic ADLs. Michelle E. Mlinac and Michelle C. Feng, Assessment of Activities of Daily Living, Self-Care, and Independence, 31 Archives of Clinical Neuropsychology 506–516 (2016). a. Bathing VA proposes to define the term ‘‘bathing’’ to mean washing, while in a shower or bathtub or using a sponge bath, at least three of the six following regions of the body in its entirety: Head and neck, back, front torso, pelvis (including the buttocks), arms, or legs. For example, if a member is unable to bathe three or more regions of the body in a tub or shower without assistance from another person, even while the member uses accommodating equipment or adaptive behavior while bathing, the member would be unable to independently bathe. However, if a member is able to bathe all but two parts of the body via a sponge bath without such assistance, accommodating equipment or adaptive behavior, the member would be considered able to bathe. b. Continence VA proposes to define the term ‘‘continence’’ to mean complete control of bowel and bladder functions or management of a catheter or colostomy bag, if present. c. Dressing VA proposes to define the term ‘‘dressing’’ to mean obtaining clothes and shoes from a closet or drawers and putting on the clothes and shoes, excluding tying shoelaces or use of belts, buttons, or zippers. If a member can use accommodating equipment to obtain and put on clothes and shoes and does not require assistance from another person, the member would be able to perform this ADL. For example, if a member can use slip-on shoes, clothing without buttons, or clothing with elastic bands and does not require assistance from another person, the member would be able to dress. d. Eating VA proposes to define the term ‘‘eating’’ to mean moving food from a plate to the mouth or receiving nutrition via a feeding tube or intravenously, and to exclude preparing or cutting food or obtaining liquid nourishment through a straw or cup. e. Toileting VA proposes to define the term ‘‘toileting’’ to mean getting on and off the toilet, taking clothes off before toileting and putting on clothes after toileting, cleaning organs of excretion E:\FR\FM\19AUP1.SGM 19AUP1 Federal Register / Vol. 85, No. 161 / Wednesday, August 19, 2020 / Proposed Rules after toileting, or using a bedpan or urinal. f. Transferring VA proposes to define the term ‘‘transferring’’ to mean moving in and out of a bed or chair. 6. Permanent VA proposes to define the term ‘‘permanent’’ in new § 9.21(a)(10) to mean clinically stable and reasonably certain to continue throughout the lifetime of the member. jbell on DSKJLSW7X2PROD with PROPOSALS 7. Therapeutic Trip VA proposes to define the term ‘‘therapeutic trip’’ in new § 9.21(a)(11) as a hospital or facility-approved pass, signed by the member’s attending physician, to leave a hospital or facility, as defined in 42 U.S.C. 1395x(e) or 1395i–3(a), respectively, accompanied or unaccompanied by hospital or facility staff, as part of a member’s treatment plan and with which the member is able to return without having to be readmitted to the hospital or facility. VA research indicated that such trips are often part of the treatment plan for individuals with traumatic brain injury, allowing the member and treatment team to evaluate how the member handles outside stimuli in his or her home or other environments. Because these therapeutic trips are part of a member’s treatment, we intend for any period of hospitalization to include such trips. B. New § 9.21(b)—Requisite Period of Consecutive Days for Scheduled Losses VA proposes to recodify the text preceding the schedule of losses in current § 9.20(f) in new § 9.21(b)(1)–(2) and to amend the text. New § 9.21(b)(3) would explain the calculation of the required periods of consecutive days of losses in new § 9.21(c)(17), (18), (20), and (21). New § 9.21(b)(3)(A) would state that a period of consecutive days of loss that is interrupted by a day or more during which the criteria for the scheduled loss are not satisfied will not be added together with a subsequent period of consecutive days of loss. The counting of consecutive days starts over at the end of any period in which the criteria for a loss are not satisfied. For example, if a member has an ADL loss due to traumatic injury other than traumatic brain injury (OTI) for 31 days, regains the ability to carry out ADLs for two months, and then has a setback and is unable to carry out ADL for another 30 days, these two periods of ADL loss would not be added together to meet the 60-day payment milestone for ADL loss VerDate Sep<11>2014 16:13 Aug 18, 2020 Jkt 250001 under paragraph (c)(20). Rather, the member would be entitled to an additional TSGLI payment under paragraph (c)(20) only if the second period of ADL loss lasts for 60 consecutive days. New § 9.21(b)(3)(B) would state that, if a loss with a required time period milestone begins but is not completed within two years of the traumatic injury, the loss would nonetheless qualify for TSGLI if the requisite time period of loss continues uninterrupted and concludes after the end of the two-year period. For example, if a member suffered a TBI on January 1, 2018 and was unable to perform ADLs due to the TBI from December 15, 2019, through January 14, 2020, the member would be eligible for TSGLI for this time period because the period of ADL loss started within the two-year time limit and continued without interruption after the two-year limit. Section 9.21(b)(3)(B) would also state that, if a member suffers a period of loss that continues uninterrupted immediately after the period of loss that concluded after expiration of the twoyear time limit, the member would be entitled to TSGLI for this time period of loss. For example, if the member who suffered ADL loss from December 15, 2019, through January 14, 2020, suffered another loss of ADLs that continued uninterrupted from January 15, 2020, until February 14, 2020, the member would be entitled to a TSGLI benefit for this period of loss as well. However, if the second period of loss of ADLs did not commence until January 20, 2020, TSGLI would not be payable for another period of loss. K. New § 9.21(c)(1)–(21)—Schedule of Losses VA proposes to recodify current § 9.20(f)(1)–(21) as new § 9.21(c)(1)–(21), incorporate definitions in current § 9.20(e)(6)(i) through (v) and (xiv) through (xxix) in the paragraphs in new § 9.21(c) to which they pertain because they are in fact criteria rather than definitions for these losses, and amend certain losses as explained below. 1. New § 9.21(c)(2)—Total and Permanent Loss of Hearing VA proposes to amend the criteria for total and permanent loss of hearing to explain that hearing acuity must be measured using pure tone audiometry (air conduction testing) without use of an amplification device. Pure tone audiometry is a very common and accepted method of testing hearing in the medical field. See 38 CFR 4.85(a). PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 50979 2. New § 9.21(c)(7)—Uniplegia VA proposes to amend the note in new § 9.21(c)(7) because of the new tiered payment structure for limb reconstruction under new § 9.21(c)(14) and (15). Under the current schedule in § 9.20(f)(7), the TSGLI payment for uniplegia cannot be combined with the payments for limb salvage or amputation of the same limb, because the initial payment for uniplegia, i.e., $50,000, is the same for all three losses and provides financial support for the member during the rehabilitation period. 73 FR 71,926, 71,928 (Nov. 26, 2008). However, as explained below, VA proposes to amend new § 9.21(c)(14) and (15) to provide payments ranging from $25,000 to $50,000 for limb reconstruction, depending upon the number and type of surgeries required. VA therefore proposes to revise the note in new § 9.20(c)(7) to explain that: (1) Payment for uniplegia of the arm or leg cannot be combined with loss for amputation of the same arm under new paragraph (c)(9) or (10) or of the same leg under new paragraph (c)(11) or (12); and (2) the higher TSGLI payment will be made for uniplegia under new paragraph (c)(7) or limb reconstruction under new paragraph (c)(14) or (15) for the same limb. 3. New § 9.21(c)(8)—Burns Under current § 9.20(e)(6)(xvii) and (f)(8), a TSGLI benefit of $100,000 is payable for ‘‘2nd degree (partial thickness) or worse burns covering at least 20 percent of the body, including the face and head, or 20 percent of the face alone.’’ However, the experts we consulted indicated that, even though the American Burn Association standard for referral to a Burn Center is partial thickness burns (or worse) of greater than 10% total body surface area (TBSA), patients with full thickness burns of at least 20% TBSA have more extensive rehabilitation needs and risk of complications than patients with partial thickness burns of at least 20% TBSA that do not require grafting. http://ameriburn.org/wp-content/ uploads/2017/05/acs-resources-burnchapter-14.pdf. Additionally, these specialists noted that the location of the burn on the body has a major impact on rehabilitation. For example, burns requiring skin grafts to joints and other body parts involved in ADL significantly lengthen rehabilitation periods. VA proposes that new § 9.21(c)(8) pertaining to burns would incorporate current medical terminology for severity determinations of burns, specifically using ‘‘partial thickness’’ in place of E:\FR\FM\19AUP1.SGM 19AUP1 50980 Federal Register / Vol. 85, No. 161 / Wednesday, August 19, 2020 / Proposed Rules ‘‘2nd degree’’ burns and ‘‘full thickness’’ in place of ‘‘or worse.’’ http:// ameriburn.org/quality-care/masscasualty/burn-care-and-prevention. Based upon the experts’ advice, VA would also provide tiered payments based upon the varying levels of rehabilitation associated with various types and extent of burns. VA would state at the beginning of new paragraph (c)(8) that the percentage of the body burned may be measured using the Rule of Nines or any means of measurement generally accepted within the medical profession. Also, under new paragraph (c)(8), a member with partial thickness burns covering 20 percent of the face or body, without the need for skin grafting, would be entitled to $50,000. A member suffering partial thickness burns or worse located on the face, hands, feet, genitalia, perineum, ankles, knees, hips, wrists, elbows or shoulders that require skin grafting or full thickness burns covering 20 percent of the face or body would be entitled to $100,000. VA also proposes to add a note at the end of new paragraph (c)(8) explaining that road rash is an abrasion and not a burn and therefore will be evaluated for loss purposes under new § 9.21(c)(20) or (21). https://www.merriam-webster.com/ dictionary/road%20rash. jbell on DSKJLSW7X2PROD with PROPOSALS 4. New § 9.21(c)(9)—Amputation of a Hand at or Above the Wrist VA proposes to revise the note at the end of new § 9.21(c)(9) to state that: (1) Payment for amputation of the hand cannot be combined with payment for loss due to uniplegia under new paragraph (c)(7) or amputation at or above the metacarpophalangeal joints under new paragraph (c)(10) for the same hand; and (2) the higher payment will be made for either amputation of the hand under new paragraph (c)(9) or limb reconstruction of the arm under new paragraph (c)(14). As explained above, these proposed amendments are necessitated by the new tiered limb reconstruction standard. 5. New § 9.21(c)(10)—Amputation at or Above the Metacarpophalangeal Joint(s) of Either the Thumb or the Other 4 Fingers of 1 Hand VA proposes to revise the note at the end of new § 9.21(c)(10) to state that: (1) Payment for amputation of 4 fingers on 1 hand or thumb alone cannot be combined with payment for loss due to uniplegia or amputation of the same hand under new paragraph (c)(7) or (c)(9), respectively; and (2) payment will be made for the higher payment for amputation of 4 fingers on 1 hand or thumb alone under new paragraph (c)(10) or loss due to limb VerDate Sep<11>2014 16:13 Aug 18, 2020 Jkt 250001 reconstruction of the arm for the same hand/arm under new paragraph (c)(14). These proposed amendments are necessitated by the new tiered limb reconstruction standard. 6. New § 9.21(c)(11)—Amputation of a Foot at or Above the Ankle VA proposes to amend the note at the end of new § 9.21(c)(11) to state that: (1) Payment for loss under new paragraph (c)(11) cannot be combined with the loss due to uniplegia or amputation of the foot below the ankle under new paragraph (c)(7) or (12), respectively; and (2) payment will be made for the higher payment for amputation of foot under new paragraph (c)(11) or amputation of toes under new paragraph (c)(13) or loss due to limb reconstruction of the leg under new paragraph (c)(15). These proposed amendments are necessitated by the new tiered limb reconstruction standard. 7. New § 9.21(c)(12)—Amputation at or Above the Metatarsophalangeal Joints of all Toes on 1 Foot VA proposes to revise the note at the end of new § 9.21(c)(12) to state that: (1) Payment for amputation of all toes including the big toe on 1 foot cannot be combined with losses under new paragraph (c)(7) or (11) for the same foot; (2) the higher payment for amputation of all toes including the big toe on 1 foot under new paragraph (c)(12) or loss under new paragraph (c)(13) will be made for the same foot; and (3) the higher payment for amputation of all toes including the big toe on 1 foot under new paragraph (c)(12) or limb reconstruction of the leg under new paragraph (c)(15) will be made for the same foot. These proposed amendments are necessitated by the new tiered limb reconstruction standard. 8. New § 9.21(c)(13)—Amputation at or Above the Metatarsophalangeal Joint(s) of Either the Big Toe, or the Other 4 Toes on 1 Foot VA proposes to add a note to new § 9.21(c)(13) stating that: (1) The higher payment for amputation of big toe only, or other 4 toes on 1 foot, under new paragraph (c)(13) or uniplegia under new paragraph (c)(7) will be made for the same foot; (2) the higher payment for amputation of big toe only, or other 4 toes on 1 foot, under new paragraph (c)(13) or amputation of the foot at or above the ankle under new paragraph (b)(11) will be made for the same foot; (3) the higher payment for amputation of big toe only, or other 4 toes on 1 foot, under new paragraph (c)(13) or PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 amputation at or above the metatarsophalangeal joints under new paragraph (c)(12) will be made for the same foot; and (4) the higher payment for amputation of big toe only, or other 4 toes on 1 foot, under new paragraph (c)(13) or limb reconstruction of the leg under new paragraph (c)(15) will be made for the same foot. These proposed amendments are necessitated by the new tiered limb reconstruction standard. 9. New § 9.21(c)(14) and (15)—Limb Reconstruction Current § 9.20(e)(6)(xix) defines the term ‘‘limb salvage’’ as ‘‘a series of operations designed to save an arm or leg with all of its associated parts rather than amputate it,’’ and also states that a surgeon must certify that the ‘‘option of amputation of the limb(s) was a medically justified alternative to salvage, and the patient chose to pursue salvage.’’ However, TSGLI claim adjudicators, medical professionals, and claimants have indicated that the decision to choose salvage over amputation is a choice that is often not clearly indicated in medical records and, therefore, it is difficult to substantiate a claim for this loss. Also, experts we consulted indicated that surgical teams do not simply attempt to save or salvage a limb but also to reconstruct it to allow for a return to some degree of functionality for the patient. They also stated that the term ‘‘reconstruction’’ refers to rebuilding a limb’s skin, bone, nerve, and vascular system rather than repairing a limb due to an open or closed fracture. Additionally, they stated that there are four types of injuries that require limb construction and four surgical procedures that constitute limb reconstruction. They stated that not every patient undergoes all four types of surgeries, but that at least one or more would be expected. Based on this input, VA proposes to change the term ‘‘limb salvage’’ to ‘‘limb reconstruction’’ in new § 9.21(c)(14) and (15). To qualify for a loss based upon ‘‘limb reconstruction,’’ a surgeon would have to document that a member’s limb has a: (1) Bony injury requiring bone grafting to re-establish stability and enable mobility of the limb; (2) soft tissue defect that requires grafting/flap reconstruction to reestablish stability and enable mobility of the limb; (3) vascular injury which requires vascular reconstruction to restore blood flow and support bone and soft tissue regeneration; or (4) nerve injury that requires nerve reconstruction to allow for motor and sensory restoration and muscle re-enervation. These criteria E:\FR\FM\19AUP1.SGM 19AUP1 Federal Register / Vol. 85, No. 161 / Wednesday, August 19, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS would focus on the critical issue of whether the limb has such significant functional limitations from a traumatic event that a surgeon would be medically justified in offering a member the option of amputating the limb rather than reconstructing it. VA also proposes to create a tiered standard for loss for reconstruction of an arm or leg based upon the number and types of surgery required in new paragraphs (c)(14) and (15). If a member undergoes one of four surgeries, the member would receive $25,000. If a member has two or more surgeries, the member would be entitled to $50,000. VA also proposes to add a note to new paragraph (c)(14) stating that the higher payment for limb reconstruction of the arm or uniplegia under new paragraph (c)(7) will be made for the same arm. The note would also state that the higher payment for limb reconstruction of arm or amputation of a hand at or above the wrist under new paragraph (c)(9) will be made for the same arm, and that the higher payment for limb reconstruction of the arm or amputation at or above the metacarpophalangeal joint(s) of either the thumb or the other 4 fingers on 1 hand under new paragraph (c)(10) will be made for the same arm. VA proposes to add a note in new § 9.21(c)(15) pertaining to limb reconstruction of a leg stating that: (1) The higher payment for limb reconstruction of leg or uniplegia under new paragraph (c)(7) will be made for the same leg; (2) the higher payment for limb reconstruction of the leg or amputation of a foot at or above the ankle under new paragraph (c)(11) will be made for the same leg; (3) the higher payment for limb reconstruction of leg or amputation at or above the metatarsophalangeal joints of all toes on 1 foot under new paragraph (c)(12) will be made for the same leg; and (4) the higher payment for limb reconstruction of leg or amputation at or above the metatarsophalangeal joint(s) of either the big toe, or the other 4 toes on 1 foot under new paragraph (c)(13) will be made for the same leg. 10. New § 9.21(c)(16)—Facial Reconstruction VA proposes to amend the criteria for facial reconstruction in new § 9.21(c)(16) to clarify the nature and extent of loss required for each payment under this paragraph. Discontinuity of the upper or lower jaw and eyes would require bone loss; discontinuity of the nose would require loss of cartilage or tissue; discontinuity of the upper or lower lip would require tissue loss; and discontinuity of facial areas would VerDate Sep<11>2014 16:13 Aug 18, 2020 Jkt 250001 require loss of bone or tissue. We also propose to add a requirement that a surgeon document that the criteria for ‘‘facial reconstruction’’ are satisfied in order to establish the loss. VA also proposes to revise the second note in new paragraph (c)(16) by changing ‘‘paragraphs 9.20(f)(1) through (18)’’ to ‘‘§ 9.21(c)(1) through (19)’’ to incorporate the 2012 amendments to the schedule that added genitourinary system losses and to make the note consistent with the recodification of the schedule. VA also proposes to add a third note stating that bone grafts for teeth implants would not constitute facial reconstruction under new paragraph (c)(16) because teeth implants do not involve a ‘‘discontinuity defect’’ of the jaw, which would be defined in new § 9.21(a)(7) as ‘‘the absence of bone and/or tissue from its normal bodily location.’’ Teeth implants instead involve placing additional tissue on top of the existing jaw to build up the area for the implants. https:// www.colgate.com/en-us/oral-health/ cosmetic-dentistry/implants/singletooth-implants. 11. New § 9.21(c)(17)—Coma or TBI We have revised the title of this loss by omitting ‘‘from traumatic injury’’ because the phrase is redundant of new § 9.20(e)(1) defining a ‘‘scheduled loss’’ as a condition in new § 9.21(c) ‘‘if directly caused by a traumatic injury.’’ Current § 9.20(e)(6)(xviii) does not actually define ‘‘coma,’’ but rather contains the criterion for this scheduled loss. i.e., a Glasgow Coma Scale (GCS) Score of 8 or less. The GCS possible values range from 3, indicating deep coma, to 15, indicating normal consciousness. https:// www.glasgowcomascale.org/faq. According to the Centers for Disease Control, a GCS score of 8 or less indicates a severe head Injury. https:// www.cdc.gov/masstrauma/resources/ gcs.pdf. We therefore propose to incorporate the criterion for ‘‘coma,’’ i.e., a Glasgow Coma Score of 8 or less, in the title of the loss. 12. New § 9.21(c)(18)—Hospitalization Due to TBI VA proposes to revise the first note in new § 9.21(c)(18) to explain that: (1) Payment for hospitalization would replace only the first milestone in new § 9.21(c)(17), i.e., 15 consecutive days of coma or ADL loss; and (2) payment would be made for the 15-day period of hospitalization or the first period of coma or ADL loss, whichever occurs earlier. The note would also be amended to state that, once payment has been made PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 50981 under new § 9.21(c)(18) based on hospitalization, coma, or ADL loss, a member would not be entitled to additional payments for a subsequent 15-day period of hospitalization due to the same traumatic injury. This proposed amendment aligns with 38 U.S.C. 1980A(a)(2), which states that, ‘‘[i]f a member suffers more than one . . . qualifying loss as a result of traumatic injury from the same traumatic event, payment shall be made under [the schedule] for the single loss providing the highest payment.’’ (Emphasis added.) Finally, VA would amend the note to state that, if a member receives a TSGLI payment under new § 9.21(c)(18) based upon hospitalization, such payment may replace only the first payment for loss of ADLs under new paragraph (c)(17), and the member would be entitled to an additional payment for loss of ADLs only if the member reaches a subsequent milestone for loss of ADLs. For example, if a member suffers a TBI and is hospitalized for 16 days, the member would be entitled to a TSGLI payment for 15 days of hospitalization under new paragraph (c)(18). To obtain an additional payment for TBI based on loss of ADLs under new paragraph (c)(17), the member would have to suffer a loss of ADLs for an additional 14 days immediately after discharge from the hospital to reach the next payment milestone of 30 consecutive days of ADL loss. If the member can perform ADLs immediately after discharge from the hospital and then later has a setback and loses ADLs, the consecutive day count would start anew. VA would also amend the second note in current § 9.20(f)(18) to explain that the duration of hospitalization under new § 9.21(c)(17) includes any period of time for a therapeutic trip as defined in new § 9.21(a)(11). Finally, TBI, mental illnesses, and brain or neurologic disorders can have similar symptomology and often require in-depth diagnostic assessment to discern which is present or if both may be present. See Jan E. Kennedy, et al., Posttraumatic Stress Disorder and Posttraumatic Stress Disorder-Like Symptoms and Mild Traumatic Brain Injury, 44 J. Rehabilitation Research & Dev. 895–920 (2007); D.G. Amen, et al., Functional Neuroimaging Distinguishes Posttraumatic Stress Disorder from Traumatic Brain Injury in Focused and Large Community Datasets, 10 Plos One 1–22 (2015). Therefore, VA proposes to add a note to new § 9.21(c)(18) stating that, if a member is hospitalized for 15 consecutive days for a diagnostic assessment for any mental illness and/ or brain or neurologic disorder, and if E:\FR\FM\19AUP1.SGM 19AUP1 50982 Federal Register / Vol. 85, No. 161 / Wednesday, August 19, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS the assessment concludes that the member has a mental illness or brain or neurologic disorder only, the member would not be entitled to TSGLI under this paragraph. In such cases, the hospitalization would be caused solely by an illness or disease, such as posttraumatic stress disorder, which falls under the exclusions from traumatic injury pursuant to 38 CFR 9.20(c)(2)(i) and (ii). However, if a member is hospitalized for 15 consecutive days for a diagnostic assessment to determine whether the member has TBI, the loss would be payable if a member is diagnosed with TBI, TBI and PTSD, or PTSD and not TBI. If a member is hospitalized for 15 consecutive days for a diagnostic assessment to determine whether the member has PTSD, the loss would be payable if the member has TBI or TBI and PTSD. 13. New § 9.21(c)(21)—Hospitalization Due to OTI VA proposes to amend the first and second notes under new § 9.21(c)(21) for loss based on hospitalization due to OTI. These amendments would be the same as the amendments to the first and second notes in new § 9.21(c)(18). The first note in current § 9.20(f)(21) states that ‘‘[p]ayment for hospitalization replaces the first payment period in loss 19.’’ VA proposes to amend the note to refer to ‘‘loss 20’’ for OTI resulting in inability to perform ADLs rather than loss 19 and to state that payment for hospitalization would only replace the first milestone in new § 9.21(c)(20), i.e., 30 consecutive days of ADL loss. This corrects a scrivener’s error in 2011 when genitourinary losses were added to the schedule of losses. 76 FR 75458 (Dec. 2, 2011). The first note would also be amended to state that payment would be made for the 15-day period of hospitalization or the first period of ADL loss, whichever occurs earlier and that, once payment has been made under new § 9.21(c)(20) on the basis of hospitalization or ADL loss, a member would not be entitled to additional payments for a subsequent 15-day period of hospitalization due to the same OTI. For example, if a member suffers an OTI due to a motorcycle accident, is hospitalized for 10 days, and experiences loss of ADL for 30 days, the member would be entitled to a TSGLI payment based on loss of ADLs for 30 days. If the member is subsequently hospitalized for another consecutive 15 days, a month later for the same motorcycle accident, the member would not be entitled to an additional TSGLI payment for hospitalization. These proposed VerDate Sep<11>2014 16:13 Aug 18, 2020 Jkt 250001 amendments are consistent with 38 U.S.C. 1980A(a)(2), which states for payment under the schedule ‘‘for the single loss providing the highest payment’’ if a member suffers more than one qualifying loss as a result of traumatic injury from the same traumatic event. Finally, VA would amend the first note to state that, if a member receives a TSGLI payment under new paragraph (c)(20) based upon loss of ADLs, the member would be entitled to an additional payment for loss of ADLs under new paragraph (c)(20) only if the member reaches a subsequent milestone for loss of ADLs in new paragraph (c)(20), i.e., 60, 90 or 120 consecutive days of ADL loss without a break in the consecutive day period where no ADL loss is present. This proposed amendment aligns with the design of the TSGLI program, which is to provide benefits payments for severe traumatic injuries that require an extended period of rehabilitation. 70 FR 75940. Requiring a member to reach the next payment milestone without a break between the consecutive days ensures that the injury is equivalent in severity to other losses under the schedule. VA would also amend the second note in new § 9.21(c)(21) to explain that the duration of hospitalization includes a period of time between admission and discharge during which a member takes a therapeutic trip as defined in new § 9.21(a)(11). III. Petition for Rulemaking On March 16, 2015, a petition for rulemaking was submitted to the Secretary of Veterans Affairs requesting that VA: 1. Amend the definition of ‘‘traumatic event’’ in current § 9.20(b)(1) to include ‘‘application of . . . explosive ordnance . . . causing damage to a living being.’’ 2. Amend the definition of ‘‘traumatic injury’’ in current § 9.20(c)(2)(ii) to include a ‘‘physical illness or disease . . . caused by . . . explosive ordnance.’’ 3. Amend the list of exclusions in current § 9.20(e)(4)(i) to provide that a scheduled loss resulting from a ‘‘physical illness or disease caused by explosive ordnance’’ will not be excluded from TSGLI coverage. 4. Add the following definition of ‘‘explosive ordnance’’ to current § 9.20(e)(6): ‘‘all munitions containing explosives, . . . includ[ing], but . . . not limited to, improvised explosive devices (IEDs).’’ In considering this proposal, VA conducted a review of medical literature on the numbers, types, and onset period of illnesses and diseases resulting from PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 explosive ordnance exposure. VA also interviewed a range of medical experts in the fields of traumatic brain injury, concussive force trauma, combat trauma, and retained toxic fragment impacts as well as epidemiologists and other medical researchers studying the impacts of blast injuries on today’s military. Based upon this review of the issue, VA denies the petition for rulemaking for the following reasons. A. Definition of ‘‘Traumatic Event’’ Current § 9.20(b) defines a ‘‘traumatic event’’ as ‘‘the application of external force, violence, chemical, biological, or radiological weapons, or accidental ingestion of a contaminated substance causing damage to a living being.’’ We agree with petitioner that IEDs are a unique hazard of military service. Therefore, since the start of the TSGLI program on December 1, 2005, explosion of an ordnance including an improvised explosive device causing damage to a living being has been considered as a traumatic event, i.e., damage caused by application of external force due to fragments of debris propelled by the explosion or due to a member being thrown to the ground or into an object. Gulf War & Health, Volume 7: Long-Term Consequences of Traumatic Brain Injury, at 7 (2009). Between December 22, 2005, and July 31, 2019, the TSGLI program provided more than $357 million in benefits to 6,207 servicemembers who suffered a traumatic injury due to an improvised explosive device, mortar attack, shrapnel, or rocket propelled grenade that resulted in a scheduled loss. VA, therefore, sees no need to amend § 9.20(b)(1) to include an explosive ordnance or to add a definition of improvised explosive device to § 9.20(e)(6). B. Illness or Disease Caused by Explosive Ordnance The petition seeks to amend current 38 CFR 9.20(c)(2)(ii) and (e)(4)(i) to ensure TSGLI coverage of physical illness or disease caused by TBI, which has been called a signature injury of the conflict in Iraq. Petition at 12–15. Petitioner contends that the harm caused by explosion of an ordnance is ‘‘just like’’ application of chemical, biological, and radiological weapons and accidental ingestion of a contaminated substance because they ‘‘produce immediate bodily harm but their biological effects may not immediately manifest’’ and ‘‘may have a latency of months to years before manifesting.’’ Petition at 23. Petitioner’s request is inconsistent with the nature E:\FR\FM\19AUP1.SGM 19AUP1 jbell on DSKJLSW7X2PROD with PROPOSALS Federal Register / Vol. 85, No. 161 / Wednesday, August 19, 2020 / Proposed Rules of TSGLI, which is modeled on AD&D insurance, and congressional intent. The plain language of 38 U.S.C. 1980A(a)(1) and (2), (b)(1), (c)(1) and (2) authorizes TSGLI benefits for a qualifying loss resulting directly from a ‘‘traumatic injury.’’ The word ‘‘disease’’ does not appear in the statute. Consistent with the maxim ‘‘expressio unius est exclusio alterius,’’ Congress knows how to include TSGLI coverage for diseases if it so desires, and it did not do so. See Russello v. United States, 464 U.S. 16, 23 (1983) (‘‘[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.’’). VA implemented 38 U.S.C. 1980A in 2005 by defining the term ‘‘traumatic injury’’ in current 38 CFR 9.20(c)(1) to mean ‘‘physical damage . . . caused by’’ the ‘‘application of external force, violence, chemical, biological, or radiological weapons, or accidental ingestion of a contaminated substance.’’ In the 2005 interim final-rule notice, VA stated that ‘‘[w]e believe that inherent in the term ‘traumatic injury’ is the notion that the injury occurs immediately.’’ 70 FR 75,941; see 10 Couch on Insurance § 139:28, at 139–64 (‘‘accidental bodily injury has been defined as a localized abnormal condition of the living body directly and contemporaneously caused by accident’’). VA expressly excluded losses caused by a ‘‘disease’’ from TSGLI coverage in current 38 CFR 9.20(c)(2)(ii) and (e)(4)(i), which states that ‘‘traumatic injury’’ does not include damage to a living body caused by a disease, whether physical or mental in nature. 70 FR 75,941. VA stated that the ‘‘term ‘injury’ refers to the result of an external trauma rather than a degenerative process, while the ‘‘term ‘disease’ . . . refers to some type of internal infection or degenerative process.’’ Id. (citing VAOPGCPREC 86– 90). VA’s conclusion that TSGLI only extends to traumatic injuries which cause immediate harm and require immediate treatment as compared to diseases is supported by the legislative history when 38 U.S.C. 1980A was enacted in 2005. TSGLI coverage was intended for injuries occurring immediately after a traumatic event, e.g., wounds suffered on the battlefield, and to provide financial support when the wounded servicemembers return home and are undergoing rehabilitation prior to medical discharge from service. See 151 Cong. Rec. 7454–55 (2005). VA, however, defined ‘‘injury’’ to include physical illness or disease VerDate Sep<11>2014 16:13 Aug 18, 2020 Jkt 250001 ‘‘caused by a pyogenic infection, chemical, biological or radiological weapons, or accidental ingestion of a contaminated substance’’ because ‘‘including immediate traumatic harm due to those unique hazards of military service is consistent with the purpose of TSGLI.’’ 70 FR 75,941 (emphasis added); 38 CFR 9.20(c)(2)(ii). VA stated that the ‘‘physical damage resulting in a covered loss would generally occur immediately and require prompt medical treatment.’’ 70 FR 75,941. Scientific reports indicate that the consequences of a TBI may not become manifest for a long period of time. For example, the Institute of Medicine report, Long-Term Consequences of Traumatic Brain Injury, at 7, found a ‘‘weak but significant association between TBI and meningioma and of an increase in risk of brain tumors 10 years or more after TBI; that suggests a long latent period before clinical presentation.’’ See also id. at 355. A study showing a link between TBI and increased risk of stroke in the first five years after injury found that, in the cohort studied, the average time between a patient’s use of health care services and onset of stroke was 543 days for patients with TBI. Yi-Hua Chen, et al., Patients with Traumatic Brain Injury: Population-Based Study Suggests Increased Risk of Stroke, 42 Stroke 2733–39 (2011). Studies of occurrence of Parkinson’s disease following TBI also show a delayed onset. Lindsay Wilson, et al., Traumatic Brain Injury 4: The Chronic and Evolving Neurological Consequences of Traumatic Brain Injury, 16 The Lancet 813–825 (2017). Because Congress intended to provide TSGLI compensation for ‘‘injuries’’ rather than diseases occurring immediately after a traumatic event and that require prompt medical treatment, the Secretary denies the petition to provide TSGLI coverage for physical illness or disease caused by TBI that ‘‘may not immediately manifest’’ and ‘‘may have a latency of months to years before manifesting.’’ Paperwork Reduction Act This proposed rule contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501–3521). Executive Orders 12866, 13563, and 13771 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 PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 50983 (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. The Office of Information and Regulatory Affairs has determined that this rule is not 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 the rulemaking and its impact analysis are available on VA’s website at http:// www.va.gov/orpm by following the link for ‘‘VA Regulations Published From FY 2004 Through Fiscal Year to Date.’’ This proposed rule is not expected to be an E.O. 13771 regulatory action because this proposed rule is not significant under E.O. 12866. 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. The provisions contained in this proposed rulemaking are specifically managed, processed, and conducted within VA and through Prudential Insurance Company of America, which is not considered to be a small entity. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply. 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 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. Catalog of Federal Domestic Assistance The Catalog of Federal Domestic Assistance number and title for the program affected by this document is 64.103, Life Insurance for Veterans. E:\FR\FM\19AUP1.SGM 19AUP1 50984 Federal Register / Vol. 85, No. 161 / Wednesday, August 19, 2020 / Proposed Rules List of Subjects in 38 CFR Part 9 Life insurance, Servicemembers, Veterans. 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. Brooks D. Tucker, Acting Chief of Staff, Department of Veterans Affairs, approved this document on July 17, 2020, for publication. Luvenia Potts, Regulation Development Coordinator, 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 9 as follows: PART 9—SERVICEMEMBERS’ GROUP LIFE INSURANCE AND VETERANS’ GROUP LIFE INSURANCE 1. The authority citation for Part 9 continues to read as follows: ■ Authority: 38 U.S.C. 501, 1965–1980A, unless otherwise noted. 2. Amend § 9.20 by: a. Revising paragraph (b)(1); b. Redesignating paragraph (c)(3) as (c)(4) and adding a new paragraph (c)(3); ■ c. Revising paragraphs (d)(2) and (4), and (e)(1), (e)(3)(i)(C) and (ii), and (e)(6); ■ c. Removing paragraph (f); ■ d. Revising paragraph (g); ■ e. Redesignating paragraph (h) as paragraph (f) and revising newly redesignated paragraph (f); ■ f. Redesignating paragraphs (i) through (k) as paragraphs (h) through (j) respectively and revising newly redesignated paragraphs (h) through (j). The revisions read as follows: ■ ■ ■ § 9.20 Traumatic injury protection. jbell on DSKJLSW7X2PROD with PROPOSALS * * * * * (b) * * * (1) A traumatic event is damage to a living being occurring on or after October 7, 2001, caused by: (i) Application of an external force; (ii) Application of violence or chemical, biological, or radiological weapons; (iii) Accidental ingestion of a contaminated substance; (iv) Exposure to low environmental temperatures, excessive heat, or documented non-penetrating blast waves; or (v) An insect bite or sting or animal bite. * * * * * VerDate Sep<11>2014 16:13 Aug 18, 2020 Jkt 250001 (c) What is a traumatic injury? * * * * (3) The term traumatic injury includes anaphylactic shock directly caused by an insect bite or sting or animal bite. * * * * * (d) * * * (2) You must suffer a scheduled loss that results directly from a traumatic injury and from no other cause. (i) A scheduled loss does not result directly from a traumatic injury and from no other cause if a pre-existing illness, condition, or disease or a postservice injury substantially contributed to the loss. (ii) A scheduled loss results directly from a traumatic injury and no other cause if the loss is caused by a medical or surgical procedure used to treat the traumatic injury. * * * * * (4) You must suffer a scheduled loss under § 9.21(c) within two years of the traumatic injury. (i) If a loss with a required time period milestone begins but is not completed within two years of the traumatic injury, the loss would nonetheless qualify for TSGLI if the requisite time period of loss continues uninterrupted and concludes after the end of the two-year period. (ii) If a required time period for a loss is satisfied before the end of the twoyear period and a member suffers another period of loss after expiration of the two-year time limit, the member is not entitled to TSGLI for this time period of loss. * * * * * (e) * * * (1) The term ‘‘scheduled loss’’ means a condition listed in the schedule in § 9.21(c) if directly caused by a traumatic injury and from no other cause. A scheduled loss is payable at the amount specified in the schedule. * * * * * (3) * * * (i) * * * (C) Diagnostic procedures, preventive medical procedures such as inoculations, medical or surgical treatment for an illness or disease, or any complications arising from such procedures or treatment, unless the diagnostic procedure or medical or surgical treatment is necessary to treat a traumatic injury; * * * * * (ii) Sustained while a member was committing an act that clearly violated a penal law classifying such an act as a felony. * * * * * (6) Definitions. For purposes of this section and § 9.21— * PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 (i) The term biological weapon means biological agents or microorganisms intended to kill, seriously injure, or incapacitate humans through their physiological effects. (ii) The term chemical weapon means chemical substances intended to kill, seriously injure, or incapacitate humans through their physiological effects. (iii) The term contaminated substance means food or water made unfit for consumption by humans because of the presence of chemicals, radioactive elements, bacteria, or organisms. (iv) The term external force means a sudden or violent impact from a source outside of the body that causes an unexpected impact and is independent of routine body motions such as twisting, lifting, bending, pushing, or pulling. (v) The term ingestion means to take into the gastrointestinal tract by means of the mouth. (vi) The term medical professional means a licensed practitioner of the healing arts acting within the scope of his or her practice, including, e.g., a licensed physician, optometrist, nurse practitioner, registered nurse, physician assistant, or audiologist. (vii) The term medically incapacitated means an individual who has been determined by a medical professional to be physically or mentally impaired by physical disability, mental illness, mental deficiency, advanced age, chronic use of drugs or alcohol, or other causes that prevent sufficient understanding or capacity to manage his or her own affairs competently. (viii) The term pyogenic infection means a pus-producing infection. (ix) The term radiological weapon means radioactive materials or radiation-producing devices intended to kill, seriously injure, or incapacitate humans through their physiological effects. (f) How does a member make a claim for traumatic injury protection benefits? (1)(i) A member who believes he or she qualifies for traumatic injury protection benefits must complete and sign Part A of the TSGLI Benefits Form and submit evidence substantiating the member’s traumatic injury and resulting loss. A medical professional must complete and sign Part B of the Application for TSGLI Benefits Form. (ii) If a medical professional certifies in Part B of the Application for TGSLI Benefits Form that a member is unable to sign Part A of the Form because the member is medically incapacitated, the Form must be signed by one of the following: The member’s guardian; if none, the member’s agent or attorney E:\FR\FM\19AUP1.SGM 19AUP1 jbell on DSKJLSW7X2PROD with PROPOSALS Federal Register / Vol. 85, No. 161 / Wednesday, August 19, 2020 / Proposed Rules acting under a valid Power of Attorney; if none, the member’s military trustee. (iii) If a member suffered a scheduled loss as a direct result of the traumatic injury, survived seven full days from the date of the traumatic event, and then died before the maximum benefit for which the service member qualifies is paid, the beneficiary or beneficiaries of the member’s Servicemembers’ Group Life Insurance policy should complete an Application for TSGLI Benefits Form. (2) If a member seeks traumatic injury protection benefits for a scheduled loss occurring after submission of a completed Application for TSGLI Benefits Form for a different scheduled loss, the member must submit a completed Application for TSGLI Benefits Form for the new scheduled loss and for each scheduled loss that occurs thereafter and for each increment of a scheduled loss that occurs thereafter. For example, if a member seeks traumatic injury protection benefits for a scheduled loss due to coma from traumatic injury and/or the inability to carry out activities of daily living due to traumatic brain injury (§ 9.21(c)(17)), or the inability to carry out activities of daily living due to loss directly resulting from a traumatic injury other than an injury to the brain (§ 9.21(c)(20)), a completed Application for TSGLI Benefits Form must be submitted for each increment of time for which TSGLI is payable. Also, for example, if a member suffers a scheduled loss due to a coma, a completed Application for TSGLI Benefits Form should be filed after the 15th consecutive day that the member is in the coma, for which $25,000 is payable. If the member remains in a coma for another 15 days, another completed Application for TSGLI Benefits Form should be submitted and another $25,000 will be paid. (g) How will the uniformed service decide a TSGLI claim? (1) Each uniformed service will certify its own members for traumatic injury protection benefits based upon section 1032 of Public Law 109–13, section 501 of Public Law 109–233, and this section. The uniformed service will certify whether a member was insured under Servicemembers’ Group Life Insurance at the time of the traumatic injury and whether the member sustained a qualifying traumatic injury and qualifying loss. (2) The uniformed service office may request additional evidence from the member if the record does not contain sufficient evidence to decide the member’s claim. (3) The uniformed service office shall consider all medical and lay evidence of VerDate Sep<11>2014 16:13 Aug 18, 2020 Jkt 250001 record, including all evidence provided by the member, and determine its probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of TSGLI benefits, the uniformed service shall give the benefit of the doubt to the member. (4) Notice of a decision regarding a member’s eligibility for traumatic injury protection benefits will include an explanation of the procedure for obtaining review of the decision, and all negative decisions shall include a statement of the basis for the decision and a summary of the evidence considered. (h) How does a member or beneficiary appeal an adverse eligibility determination? (1) Each uniformed service has a three-tiered appeal process. The first tier of appeal is called a reconsideration, followed by a secondlevel appeal and then a third-level appeal. A member, beneficiary, or other person eligible to submit a claim under paragraph (f)(1)(ii) or (iii) may submit an appeal using the appeal process of the uniformed service that issued the original decision. (i) Reconsideration. (A) Reconsideration of an eligibility determination, such as whether the loss occurred within 730 days of the traumatic injury, whether the member was insured under Servicemembers’ Group Life Insurance when the traumatic injury was sustained, or whether the injury was self-inflicted or whether a loss of hearing was total and permanent, is initiated by filing, with the office of the uniformed service identified in the eligibility decision within one year of the date of a denial of eligibility, a written notice of appeal that identifies the issues for which reconsideration is sought. (B) The uniformed service TSGLI office will review the claim, including evidence submitted with the notice of appeal by or on behalf of the member that was not previously part of the record before the uniformed service, and issue a decision on the claim. (ii) Second-level appeal. (A) A second-level appeal of the reconsideration decision is initiated by filing, with the second-level appeal office of the uniformed service within one year of the date of the reconsideration decision, a written notice of appeal that identifies the issues being appealed. (B) The uniformed service secondlevel appeal office will review the claim, including evidence submitted with the notice of appeal by or on behalf of the member that was not previously PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 50985 part of the record before the uniformed service, and issue a decision on the claim. (iii) Third-level appeal. (A) A thirdlevel review of the second-level uniformed service appeal office is initiated by filing, with the third-level appeal office of the uniformed service within one year of the date of the decision by the second-level appeal office of the uniformed service, a written notice of appeal that identifies the issues being appealed. (B) The uniformed service third-level appeal office will review the claim, including evidence submitted with the notice of appeal by or on behalf of the member that was not previously part of the record before the uniformed service, and issue a decision on the claim. (2) If a timely notice of appeal seeking reconsideration of the initial decision by the uniformed service or seeking review of the decision by the second-level uniformed service appeal office is not filed, the initial decision by the uniformed service or the decision by the second-level uniformed service appeal office, respectively, shall become final, and the claim will not thereafter be readjudicated or allowed except as provided in paragraph (h)(3). (3) New and material evidence. (i) If a member, beneficiary, or other person eligible to submit a claim under paragraph (f)(1)(ii) or (iii) submits new and material evidence with respect to a claim that has been finally disallowed as provided in paragraph (h)(2), the uniformed service office will consider the evidence, determine its probative value, and readjudicate the claim. New and material evidence is evidence that was not previously part of the record before the uniformed service, is not cumulative or redundant of evidence of record at the time of the prior decision and is likely to have a substantial effect on the outcome. (ii) A decision finding that new and material evidence was not submitted may be appealed in accordance with paragraph (h)(1). (4) Nothing in this section precludes a member from pursuing legal remedies under 38 U.S.C. 1975 and 38 CFR 9.13. However, if a member files suit in U.S. district court after an adverse initial decision on a TSGLI claim by a uniformed service, the member may not file an appeal pursuant to paragraph (h)(1) if the lawsuit is pending before a U.S. district court, U.S. court of appeals, or U.S. Supreme Court or the time for appeal or filing a petition for a writ of certiorari has not expired. If a member files suit in U.S. district court after filing an appeal pursuant to paragraph (h)(1), the appeal will be stayed if the lawsuit E:\FR\FM\19AUP1.SGM 19AUP1 50986 Federal Register / Vol. 85, No. 161 / Wednesday, August 19, 2020 / Proposed Rules is pending before a U.S. district court, U.S. court of appeals, or U.S. Supreme Court or the time for appeal or filing a petition for a writ of certiorari has not expired. (i) Who will be paid the traumatic injury protection benefit? The injured member who suffered a scheduled loss will be paid the traumatic injury protection benefit in accordance with 38 U.S.C. 1980A except under the following circumstances: (A) If a member has been determined by a medical professional, in Part B of the Application for TSGLI Benefits Form, to be medically incapacitated, the member’s guardian or, or if there is no guardian, the member’s agent or attorney acting under a valid Power of Attorney will be paid the benefit on behalf of the member. (B) If no guardian, agent, or attorney is authorized to act as the member’s legal representative, a military trustee who has been appointed under the authority of 37 U.S.C. 602 will be paid the benefit on behalf of the member. The military trustee will report the receipt of the traumatic injury benefit payment and any disbursements from that payment to the Department of Defense. (C) If a member dies before payment is made, the beneficiary or beneficiaries who will be paid the benefit will be determined in accordance with 38 U.S.C. 1970(a). (j) The Traumatic Servicemembers’ Group Life Insurance program will be administered in accordance with this rule, except to the extent that any regulatory provision is inconsistent with subsequently enacted applicable law. ■ 3. Redesignate §§ 9.21 and 9.22 as §§ 9.22 and 9.23 and add a new § 9.21 to read as follows: jbell on DSKJLSW7X2PROD with PROPOSALS § 9.21 Schedule of Losses. (a) Definitions. For purposes of the Schedule of Losses in paragraph (c)— (1) The term accommodating equipment means tools or supplies that enable a member to perform an activity of daily living without the assistance of another person, including, but not limited to, a wheelchair; walker or cane; reminder applications; Velcro clothing or slip-on shoes; grabber or reach extender; raised toilet seat; wash basin; shower chair; or shower or tub modifications such as wheelchair access or no-step access, grab-bar or handle. (2) The term adaptive behavior means compensating skills that allow a member to perform an activity of daily living without the assistance of another person. (3) The term amputation means the severance or removal of a limb or genital organ or part of a limb or genital organ VerDate Sep<11>2014 16:13 Aug 18, 2020 Jkt 250001 resulting from trauma or surgery. With regard to limbs, an amputation above a joint means a severance or removal that is closer to the body than the specified joint is. (4) The term assistance from another person means that a member, even while using accommodating equipment or adaptive behavior, is nonetheless unable to perform an activity of daily living unless another person physically supports the member, is needed to be within arm’s reach of the member to provide assistance because the member’s ability fluctuates, or provides oral instructions to the member while the member attempts to perform the activity of daily living. (5) The term avulsion means a forcible detachment or tearing of bone and/or tissue due to a penetrating or crush injury. (6) The term consecutive means to follow in uninterrupted succession. (7) The term discontinuity defect means the absence of bone and/or tissue from its normal bodily location, which interrupts the physical consistency of the face and impacts at least one of the following functions: Mastication, swallowing, vision, speech, smell, or taste. (8) The term hospitalization means admission to a ‘‘hospital’’ as defined in 42 U.S.C. 1395x(e) or ‘‘skilled nursing facility’’ as defined in 42 U.S.C. 1395i– 3(a). (9) The term inability to carry out activities of daily living means the inability to perform at least two of the six following functions without assistance from another person, even while using accommodating equipment or adaptive behavior, as documented by a medical professional. (i) Bathing means washing, while in a bathtub or shower or using a sponge bath, at least three of the six following regions of the body in its entirety: Head and neck, back, front torso, pelvis (including the buttocks), arms, or legs. (ii) Continence means complete control of bowel and bladder functions or management of a catheter or colostomy bag, if present. (iii) Dressing means obtaining clothes and shoes from a closet or drawers and putting on the clothing and shoes, excluding tying shoelaces or use of belts, buttons, or zippers. (iv) Eating means moving food from a plate to the mouth or receiving nutrition via a feeding tube or intravenously but does not mean preparing or cutting food or obtaining liquid nourishment through a straw or cup. (v) Toileting means getting on and off the toilet; taking clothes off before toileting or putting clothes on after PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 toileting; cleaning organs of excretion after toileting; or using a bedpan or urinal. (vi) Transferring means moving in and out of a bed or chair. (10) The term permanent means clinically stable and reasonably certain to continue throughout the lifetime of the member. (11) The term therapeutic trip means an approved pass by the member’s attending physician to leave a hospital as defined in 42 U.S.C. 1395x(e) or ‘‘skilled nursing facility’’ as defined in 42 U.S.C. 1395i–3(a), accompanied or unaccompanied by hospital or facility staff, as part of a member’s treatment plan and with which the member is able to return without having to be readmitted to the hospital or facility. (b)(1) For losses listed in paragraphs (c)(1) through (19) of this section— (i) Except where noted otherwise, multiple losses resulting from a single traumatic event may be combined for purposes of a single payment. (ii) The total payment amount may not exceed $100,000 for losses resulting from a single traumatic event. (2) For losses listed in paragraphs (c)(20) and (21) of this section— (i) Payments may not be made in addition to payments for losses under paragraphs (c)(1) through (19); instead, the higher amount will be paid. (ii) The total payment amount may not exceed $100,000 for losses resulting from a single traumatic event. (3) Required period of consecutive days of loss. For losses in paragraphs (c)(17) through (18) and (20) through (21)— (i) A period of consecutive days of loss that is interrupted by a day or more during which the criteria for the scheduled loss are not satisfied will not be added together with a subsequent period of consecutive days of loss. The counting of consecutive days starts over at the end of any period in which the criteria for a loss are not satisfied. (ii) A required period of consecutive days will be satisfied if a loss begins within two years of a traumatic injury and continues without interruption after the end of the two-year period. A subsequent period of consecutive days of a scheduled loss will be satisfied if it follows uninterrupted immediately after an initial period of consecutive days of loss that ended after expiration of the two-year period. (c) Schedule of Losses. (1) Total and permanent loss of sight is: (i) Visual acuity in the eye of 20/200 or less/worse with corrective lenses lasting at least 120 days; (ii) Visual acuity in the eye of greater/ better than 20/200 with corrective E:\FR\FM\19AUP1.SGM 19AUP1 jbell on DSKJLSW7X2PROD with PROPOSALS Federal Register / Vol. 85, No. 161 / Wednesday, August 19, 2020 / Proposed Rules lenses and a visual field of 20 degrees of less lasting at least 120 days; or (iii) Anatomical loss of the eye. (iv) The amount payable for the loss of each eye is $50,000. (2) Total and permanent loss of hearing is: (i) Average hearing threshold sensitivity for air conduction of at least 80 decibels, based on hearing acuity measured at 500, 1,000, and 2,000 Hertz via pure tone audiometry by air conduction, without amplification device (ii) The amount payable for loss of one ear is $25,000. The amount payable for the loss of both ears is $100,000. (3) Total and permanent loss of speech is: (i) Organic loss of speech or the ability to express oneself, both by voice and whisper, through normal organs for speech, notwithstanding the use of an artificial appliance to simulate speech. (ii) The amount payable for the loss of speech is $50,000. (4) Quadriplegia is: (i) Total and permanent loss of voluntary movement of all four limbs resulting from damage to the spinal cord, associated nerves, or brain. (ii) The amount payable for quadriplegia is $100,000. (5) Hemiplegia is: (i) Total and permanent loss of voluntary movement of the upper and lower limbs on one side of the body from damage to the spinal cord, associated nerves, or brain. (ii) The amount payable for hemiplegia is $100,000. (6) Paraplegia is: (i) Total and permanent loss of voluntary movement of both lower limbs resulting from damage to the spinal cord, associated nerves, or brain. (ii) The amount payable for paraplegia is $100,000. (7) Uniplegia is: (i) Total and permanent loss of voluntary movement of one limb resulting from damage to the spinal cord, associated nerves, or brain. (ii) The amount payable for the loss of each limb is $50,000. (iii) Payment for uniplegia of arm cannot be combined with loss 9 or 10 for the same arm. The higher payment for uniplegia or loss 14 will be made for the same arm. Payment for uniplegia of leg cannot be combined with loss 11 or 12 for the same leg. The higher payment for uniplegia or loss 13 will be made for the same leg. The higher payment for uniplegia or loss 15 will be made for the same leg. (8) Burns: (i) The percentage of the body burned may be measured using the Rule of Nines or any means of VerDate Sep<11>2014 16:13 Aug 18, 2020 Jkt 250001 measurement generally accepted within the medical profession. (ii) The amount payable for partial thickness burns covering 20% of face or body that do not require skin grafting is $50,000. (iii) The amount payable for partial thickness burns or worse located on the face, hands, feet, genitalia, perineum, ankles, knees, hips, wrists, elbows, or shoulders that require grafting is $100,000. (iv) The amount payable for full thickness burns covering 20% of the face or body is $100,000. (v) Road rash, which is a skin abrasion caused by sliding on a hard or rough surface, will be evaluated under paragraphs (c)(20) and (21). (9) Amputation of a hand at or above the wrist: (i) The amount payable for the loss of each hand is $50,000. (ii) Payment for amputation of hand cannot be combined with payment for loss 7 or 10 for the same hand. The higher payment for amputation of hand or loss 14 will be made for the same hand. (10) Amputation at or above the metacarpophalangeal joint(s) of either the thumb or the other 4 fingers on 1 hand: (i) The amount payable for the loss of each hand is $50,000. (ii) Payment for amputation of 4 fingers on 1 hand or thumb alone cannot be combined with payment for loss 7 or 9 for the same hand. The higher payment for amputation of 4 fingers on 1 hand or thumb alone or loss 14 will be made for the same hand. Payment for loss of the thumb cannot be made in addition to payment for loss of the other 4 fingers for the same hand. (11) Amputation of a foot at or above the ankle: (i) The amount payable for the loss of each foot is $50,000. (ii) Payment for amputation of foot cannot be combined with loss 7 or 12 for the same foot. The higher payment for amputation of foot or Loss 13 will be made for the same foot. The higher payment for amputation of foot or Loss 15 will be made for the same foot. (12) Amputation at or above the metatarsophalangeal joints of all toes on 1 foot: (i) The amount payable for the loss of each foot is $50,000. (ii) Payment for amputation of all toes including the big toe on 1 foot cannot be combined with loss 7 or 11 for the same foot. The higher payment for amputation of all toes including the big toe on 1 foot or loss 13 will be made for the same foot. The higher payment for amputation of all toes including the big toe on 1 foot or loss 15 will be made for the same foot. (13) Amputation at or above the metatarsophalangeal joint(s) of either PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 50987 the big toe or the other 4 toes on 1 foot: (i) The amount payable for the loss of each foot is $25,000. (ii) The higher payment for amputation of big toe only, or other 4 toes on 1 foot, or loss 7 will be made for the same foot. The higher payment for amputation of big toe only, or other 4 toes on 1 foot, or loss 11 will be made for the same foot. The higher payment for amputation of big toe only, or other 4 toes on 1 foot, or loss 12 will be made for the same foot. The higher payment for amputation of big toe only, or other 4 toes on 1 foot, or loss 15 will be made for the same foot. (14) Limb reconstruction of arm (for each arm): (i) A surgeon must certify that a member had surgery to treat at least one of the following injuries to a limb: (A) Bony injury requiring bone grafting to re-establish stability and enable mobility of the limb; (B) Soft tissue defect requiring grafting/flap reconstruction to reestablish stability; (C) Vascular injury requiring vascular reconstruction to restore blood flow and support bone and soft tissue regeneration; or (D) Nerve injury requiring nerve reconstruction to allow for motor and sensory restoration and muscle reenervation. (ii) The amount payable for losses involving 1 of the 4 listed surgeries is $25,000. The amount payable for losses involving 2 or more of the 4 listed surgeries is $50,000. (iii) The higher payment for limb reconstruction of arm or loss 7 will be made for the same arm. The higher payment for limb reconstruction of arm or loss 9 will be made for the same arm. The higher payment for limb reconstruction of arm or loss 10 will be made for the same arm. (15) Limb reconstruction of leg (for each leg): (i) A surgeon must certify that a member had at least one of the following injuries to a limb requiring the identified surgery for the same limb: (A) Bony injury requiring bone grafting to re-establish stability and enable mobility of the limb; (B) Soft tissue defect requiring grafting/flap reconstruction to reestablish stability; (C) Vascular injury requiring vascular reconstruction to restore blood flow and support bone and soft tissue regeneration; or (D) Nerve injury requiring nerve reconstruction to allow for motor and sensory restoration and muscle reenervation. (ii) The amount payable for losses involving 1 of the 4 listed surgeries is E:\FR\FM\19AUP1.SGM 19AUP1 jbell on DSKJLSW7X2PROD with PROPOSALS 50988 Federal Register / Vol. 85, No. 161 / Wednesday, August 19, 2020 / Proposed Rules $25,000. The amount payable for losses involving 2 or more of the 4 listed surgeries is $50,000. (iii) The higher payment for limb reconstruction of leg or loss 7 will be made for the same leg. The higher payment for limb reconstruction of leg or loss 11 will be made for the same leg. The higher payment for limb reconstruction of leg or loss 12 will be made for the same leg. The higher payment for limb reconstruction of leg or loss 13 will be made for the same leg. (16) Facial reconstruction: (i) A surgeon must certify that a member had surgery to correct a traumatic avulsion of the face or jaw that caused a discontinuity defect to one or more of the following facial areas: (A) Surgery to correct discontinuity loss involving bone loss of the upper or lower jaw-the amount payable for this loss is $75,000; (B) Surgery to correct discontinuity loss involving cartilage or tissue loss of 50% or more of the cartilaginous nosethe amount payable for this loss is $50,000; (C) Surgery to correct discontinuity loss involving tissue loss of 50% or more of the upper or lower lip-the amount payable for loss of one lip is $50,000, and the amount payable for loss of both lips is $75,000; (D) Surgery to correct discontinuity loss involving bone loss of 30% or more of the periorbita-the amount payable for loss of each eye is $25,000; (E) Surgery to correct discontinuity loss involving loss of bone or tissue of 50% or more of any of the following facial subunits: Forehead, temple, zygomatic, mandibular, infraorbital, or chin-the amount payable for each facial subunit is $25,000. (ii) Losses due to facial reconstruction may be combined with each other, but the maximum benefit for facial reconstruction may not exceed $75,000. (iii) Any injury or combination of losses under facial reconstruction may be combined with other losses in § 9.21(c)(1)–(19) and treated as one loss, provided that all losses are the result of a single traumatic event. However, the total payment amount may not exceed $100,000. (iv) Bone grafts for teeth implants alone do not meet the loss standard for facial reconstruction from jaw surgery. (17) Coma (8 or less on Glasgow Coma Scale) AND/OR Traumatic Brain Injury resulting in inability to perform at least 2 activities of daily living (ADL): (i) The amount payable at the 15th consecutive day of ADL loss is $25,000. (ii) The amount payable at the 30th consecutive day of ADL loss is an additional $25,000. VerDate Sep<11>2014 16:13 Aug 18, 2020 Jkt 250001 (iii) The amount payable at the 60th consecutive day of ADL loss is an additional $25,000. (iv) The amount payable at the 90th consecutive day of ADL loss is an additional $25,000. (v) Duration of coma and inability to perform ADLs include date of onset of coma or inability to perform ADLs and the first date on which member is no longer in a coma or is able to perform ADLs. (18) Hospitalization due to traumatic brain injury: (i) The amount payable at the 15th consecutive day of hospitalization is $25,000. (ii) Payment for hospitalization may only replace the first ADL milestone in loss 17. Payment will be made for 15day hospitalization, coma, or the first ADL milestone, whichever occurs earlier. Once payment has been made for the first payment milestone in loss 17 for coma or ADL, there are no additional payments for subsequent 15day hospitalization due to the same traumatic injury. To receive an additional ADL payment amount under loss 17 after payment for hospitalization in the first payment milestone, the member must reach the next payment milestones of 30, 60, or 90 consecutive days. (iii) Duration of hospitalization includes the dates on which member is transported from the injury site to a hospital as defined in 42 U.S.C. 1395x(e) or skilled nursing facility as defined in 42 U.S.C. 1395i–3(a), admitted to the hospital or facility, transferred between a hospital or facility, leaves the hospital or facility for a therapeutic trip, and discharged from the hospital or facility. (iv) In cases where a member is hospitalized for 15 consecutive days for a diagnostic assessment for a mental illness and/or brain or neurologic disorder, and the assessment determines the member has a mental illness or brain or neurologic disorder, and not TBI, this loss is not payable because the loss was due to illness or disease and is excluded from payment. If a member is hospitalized for 15 consecutive days for a diagnostic assessment to determine whether the member has TBI and is diagnosed with TBI, TBI and PTSD, or PTSD and not TBI, the loss is payable for $25,000. If a member is hospitalized for 15 consecutive days for a diagnostic assessment to determine whether the member has PTSD and is diagnosed with TBI or TBI and PTSD, the loss is payable for $25,000. (19) Genitourinary losses: (i) Amputation of the glans penis or any portion of the shaft of the penis above glans penis (i.e. closer to the body) or PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 damage to the glans penis or shaft of the penis that requires reconstructive surgery-the amount payable for this loss is $50,000. (ii) Permanent damage to the glans penis or shaft of the penis that results in complete loss of the ability to perform sexual intercourse-the amount payable for this loss is $50,000. (iii) Amputation of or damage to a testicle that requires testicular salvage, reconstructive surgery, or both-the amount payable for this loss is $25,000. (iv) Amputation of or damage to both testicles that requires testicular salvage, reconstructive surgery, or both-the amount payable for this loss is $50,000. (v) Permanent damage to both testicles requiring hormonal replacement therapy-the amount payable for this loss is $50,000. (vi) Complete or partial amputation of the vulva, uterus, or vaginal canal or damage to the vulva, uterus, or vaginal canal that requires reconstructive surgery-the amount payable for this loss is $50,000. (vii) Permanent damage to the vulva or vaginal canal that results in complete loss of the ability to perform sexual intercourse-the amount payable for this loss is $50,000. (viii) Amputation of an ovary or damage to an ovary that requires ovarian salvage, reconstructive surgery, or boththe amount payable for this loss is $25,000. (ix) Amputation of both ovaries or damage to both ovaries that requires ovarian salvage, reconstructive surgery, or both-the amount payable for this loss is $50,000. (x) Permanent damage to both ovaries requiring hormonal replacement therapy-the amount payable for this loss is $50,000. (xi) Permanent damage to the urethra, ureter(s), both kidneys, bladder, or urethral sphincter muscle(s) that requires urinary diversion and/or hemodialysis-the amount payable for this loss is $50,000. (xii) Losses due to genitourinary injuries may be combined with each other, but the maximum benefit for genitourinary losses may not exceed $50,000. (xiii) Any genitourinary loss may be combined with other injuries listed in § 9.21(b)(1)–(18) and treated as one loss, provided that at all losses are the result of a single traumatic event. However, the total payment may not exceed $100,000. (20) Traumatic injury, other than traumatic brain injury, resulting in inability to perform at least 2 activities of daily living (ADL): (i) The amount E:\FR\FM\19AUP1.SGM 19AUP1 Federal Register / Vol. 85, No. 161 / Wednesday, August 19, 2020 / Proposed Rules payable at the 15th consecutive day of ADL loss is $25,000. (ii) The amount payable at the 30th consecutive day of ADL loss is an additional $25,000. (iii) The amount payable at the 60th consecutive day of ADL loss is an additional $25,000. (iv) The amount payable at the 90th consecutive day of ADL loss is an additional $25,000. (v) Duration of inability to perform ADL includes the date of the onset of inability to perform ADL and the first date on which member is able to perform ADL. (21) Hospitalization due to traumatic injury other than traumatic brain injury: (i) The amount payable at 15th consecutive day of ADL loss is $25,000. (ii) Payment for hospitalization may only replace the first ADL milestone in loss 20. Payment will be made for 15day hospitalization or the first ADL milestone, whichever occurs earlier. Once payment has been made for the first payment milestone in loss 20, there are no additional payments for subsequent 15-day hospitalization due to the same traumatic injury. To receive an additional ADL payment amount under loss 20 after payment for hospitalization in the first payment milestone, the member must reach the next payment milestones of 60, 90, or 120 consecutive days. (iii) Duration of hospitalization includes the dates on which member is transported from the injury site to a hospital as defined in 42 U.S.C. 1395x(e) or skilled nursing facility as defined in 42 U.S.C. 1395i–3(a), admitted to the hospital or facility, transferred between a hospital or facility, leaves the hospital or facility for a therapeutic trip, and discharged from the hospital or facility. [GSAR Case 2020–G502; Docket No. GSA– GSAR–2020–0014; Sequence No. 1] The General Services Administration (GSA) is issuing this advance notice of proposed rulemaking (ANPR) to seek public comments that can be used to assist in the implementation of Section 876 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2019 for the Federal Supply Schedule (FSS) program. Section 876 amended the United States Code by providing an exception to the requirement to consider price as an evaluation factor for the award of certain indefinite-delivery, indefinite-quantity contracts and Federal Supply Schedule contracts. DATES: Interested parties should submit written comments at the address shown below on or before September 18, 2020 to be considered in the formulation of a proposed rule. ADDRESSES: Submit comments in response to GSAR Case 2020–G502 to https://www.regulations.gov. Submit comments via the Federal eRulemaking portal by searching for ‘‘GSAR Case 2020–G502’’. Select the link ‘‘Comment Now’’ that corresponds with GSAR Case 2020–G502. Follow the instructions provided at the ‘‘Comment Now’’ screen. Please include your name, company name (if any), and ‘‘GSAR Case 2020–G502’’ on your attached document. Instructions: Please submit comments only and cite GSAR Case 2020–G502 in all correspondence related to this case. Comments received generally will be posted without change to https:// www.regulations.gov, including any personal and/or business confidential information provided. To confirm receipt of your comment(s), please check https://www.regulations.gov approximately two to three days after submission to verify posting. FOR FURTHER INFORMATION CONTACT: Mr. Thomas O’Linn, Procurement Analyst, at 202–445–0390 or thomas.olinn@ gsa.gov for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202– 501–4755 or GSARegSec@gsa.gov. Please cite GSAR Case 2020–G502. SUPPLEMENTARY INFORMATION: RIN 3090–AK15 I. Background (Authority: 38 U.S.C. 501(a), 1980A) [FR Doc. 2020–15981 Filed 8–18–20; 8:45 am] BILLING CODE 8320–01–P GENERAL SERVICES ADMINISTRATION 48 CFR Parts 8 and 38 jbell on DSKJLSW7X2PROD with PROPOSALS Advance notice of proposed rulemaking. ACTION: General Services Administration Acquisition Regulation (GSAR); Increasing Order Level Competition for Federal Supply Schedules Office of Acquisition Policy, General Services Administration (GSA). AGENCY: VerDate Sep<11>2014 16:13 Aug 18, 2020 Jkt 250001 SUMMARY: The Federal Supply Schedule (FSS) program provides the Government with a simplified process of acquiring commercial supplies and services in varying quantities while obtaining volume discounts. Federal Acquisition Regulation (FAR) subpart 8.4 and part PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 50989 38, along with various parts of the GSA Acquisition Regulation (GSAR) provide direction to customers, offerors, contractors, and GSA contracting officers as it relates to the FSS program. GSA is seeking public comment for purposes of assisting GSA in effectively implementing Section 876 of the NDAA for FY 2019 (Pub. L. 115–232) as it relates to the FSS program. Section 876 amended 41 U.S.C. 3306(c) to modify the requirement to consider cost or price as an evaluation factor for the award of certain indefinite-delivery, indefinite-quantity multiple-award contracts and certain FSS contracts to qualifying offerors. Currently, offerors responding to solicitations for award of FSS contracts are required to submit commercial sales practice data, or other cost or price information with their proposals. Section 876 gives GSA the discretion to not include price as an evaluation factor in certain FSS contracts and other Indefinite Delivery Indefinite Quantity (IDIQ) contracts provided that (1) the agency intends to make a contract award to each qualifying offeror, (2) task or delivery orders will be based on hourly rates, and (3) competition takes place at the order level. To be eligible for award a ‘‘qualifying offeror’’ must be a responsible source; submit a proposal that conforms to the requirements of the solicitation; meet all technical requirements; and be otherwise eligible for award. The Federal Acquisition Regulatory Council has opened FAR case 2018–014, Increasing Task-order Level for purposes of implementing 41 U.S.C. 3306(c), which provides an exception to the requirement to consider price as an evaluation factor for the award of certain indefinite-delivery, indefinitequantity contracts and FSS contracts. Since the FAR case is still in development, GSA is issuing this ANPR to aid in thinking through a series of questions related to applying this authority to the FSS program. GSA will consider comments received in response to this ANPR in future rulemaking: (i) To proceed with rulemaking through the publication of a proposed rule to amend the GSAR, (ii) to inform the Federal Acquisition Regulatory Council on its implementation of this authority within the FAR (i.e., FAR case 2018–014), and (iii) to revise other GSA policies, procedures, and guidance that support the FSS program. II. Expected Impact Because of the length of the contracts, reach of the program, and unique statutory environment, GSA anticipates E:\FR\FM\19AUP1.SGM 19AUP1

Agencies

[Federal Register Volume 85, Number 161 (Wednesday, August 19, 2020)]
[Proposed Rules]
[Pages 50973-50989]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-15981]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 9

RIN 2900-AQ53


Servicemembers' Group Life Insurance Traumatic Injury Protection 
Program Amendments

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its 
regulations that govern the Servicemembers' Group Life Insurance (SGLI) 
Traumatic Injury Protection (TSGLI) program, to clarify the eligibility 
criteria, add definitions, and explain the application and appeals 
processes, including the submission of supporting evidence and the 
interaction between the administrative appeals process and a Federal 
lawsuit on a claim. VA proposes to recodify the definitions in the 
current regulation that are pertinent to the schedule of losses, revise 
existing definitions, and add new definitions. VA would add a new 
regulation to codify the text at the beginning of the schedule of 
losses, recodify that schedule, and amend the criteria for certain 
losses in the schedule. This rulemaking also responds to a petition for 
rulemaking.

DATES: Comments must be received on or before October 19, 2020.

ADDRESSES: Written comments may be submitted through http://www.Regulations.gov; by mail or hand-delivery to: Director, Office of 
Regulation Policy and Management (00REG), Department of Veterans 
Affairs, 810 Vermont Ave. NW, Room 1064, Washington, DC 20420; or by 
fax to (202) 273-9026. (This is not a toll-free telephone number.) 
Comments should indicate that they are submitted in response to ``RIN 
2900-AQ53 Servicemembers' Group Life Insurance Traumatic Injury 
Protection Program Amendments.'' Copies of comments received will be 
available for public inspection in the Office of Regulation Policy and 
Management, Room 1064, 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 telephone number.) In 
addition, during the comment period, comments may be viewed online 
through the Federal Docket Management System (FDMS) at http://www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Paul Weaver, Department of Veterans 
Affairs Insurance Center (310/290B), 5000 Wissahickon Avenue, 
Philadelphia, PA 19144, (215) 842-2000, ext. 4263. (This is not a toll-
free number.)

SUPPLEMENTARY INFORMATION: TSGLI provides up to $100,000 of traumatic 
injury coverage to all servicemembers enrolled in SGLI. TSGLI provides 
a financial benefit to seriously injured SGLI insureds to assist them 
with expenses incurred during long periods of recovery and 
rehabilitation. Since the program began issuing benefits on December 
22, 2005, through June 30, 2019, over $1 billion has been paid to 
almost 18,500 injured servicemembers. TSGLI is modeled after commercial 
Accidental Death and Dismemberment

[[Page 50974]]

(AD&D) insurance coverage, specifically, the ``dismemberment'' portion 
of the coverage, although it deviates in some respects from the 
commercial AD&D model to account for the unique needs of military 
personnel. 70 FR 75,940 (Dec. 22, 2005). In developing these proposed 
amendments, VA considered industry practice and AD&D case law, the 
goals and purpose of the TSGLI authorizing statute, as well as analysis 
from a TSGLI Year-Ten Review and consultation with medical experts.

I. Year-Ten Review

    After ten years of program implementation, VA initiated a 
comprehensive review of TSGLI regulations to assess proposals for 
improvements, clarify eligibility standards, identify opportunities for 
administrative and operational enhancements, and ensure consistency 
with congressional intent. VA reviewed approximately 1,850 TSGLI claims 
that had been adjudicated by the uniformed services and consulted with 
medical experts at 18 military, VA, and private medical facilities, 
including George Washington University Medical Center, Washington, DC; 
Navy Medical Center, San Diego, California; San Antonio Military 
Medical Center, San Antonio, Texas; University of Pennsylvania 
Hospital, Philadelphia, Pennsylvania; VA Amputation System of Care, VA 
Medical Center, Richmond, Virginia; VA Medical Center, Bay Pines, 
Florida; VA Polytrauma Center, Tampa, Florida; Walter Reed National 
Military Medical Center, Bethesda, Maryland; and Moss Rehabilitation 
Research Institute, Elkins Park, Pennsylvania (``experts'').
    Areas addressed by the review include loss standards, application 
and appeals processes, forms, program exclusions, and definitions. A 
copy of the review can be found at https://www.benefits.va.gov/INSURANCE/docs/TSGLI_YTR.pdf. This comprehensive program review served 
as the basis for many aspects of this proposed rulemaking.
    While VA was conducting the Year-Ten Review, a petition for 
rulemaking was submitted to the Secretary of Veterans Affairs on March 
16, 2015. The petition is addressed in this notice of proposed 
rulemaking, which serves as the Secretary's response to the petition.

II. Proposed Amendments to Sec.  9.20

A. New Sec.  9.20(b)--Qualifying Traumatic Events

    VA proposes to restructure current Sec.  9.20(b)(1) and to add new 
qualifying traumatic events.
    New paragraph (b)(1)(A)-(C) would incorporate the material in 
current Sec.  9.20(b)(1) that defines a traumatic event to include 
damage caused by ``application of external force, violence, chemical, 
biological, or radiological weapons'' and ``accidental ingestion of a 
contaminated substance.'' As explained below, VA would add a definition 
of ``external force'' in new Sec.  9.20(e)(6)(iv) and ``ingestion'' in 
new Sec.  9.20(e)(6)(v).
    New paragraph (b)(1)(D) would add exposure to low environmental 
temperatures, excessive heat, and documented non-penetrating blast 
waves as traumatic events based upon evidence showing increased 
occurrence of traumatic injuries resulting from such exposures. The 
incidence of heat illnesses in the uniformed services had risen between 
2014 and 2018 creating a ``significant and persistent threat to both 
the health of U.S. military members and the effectiveness of military 
operations.'' Armed Forces Health Surveillance Branch, Update: Heat 
Illness, Active Component, U.S. Armed Forces, 2018, 26 Med. 
Surveillance Monthly Rep. 15, 19 (2019). Injury from cold weather 
increased among military troops by 19.6% in 2017-2018 compared to 2016-
2017. Armed Forces Health Surveillance Branch, Update: Cold Weather 
Injuries, Active and Reserve Components, U.S. Armed Forces, July 2013-
June 2018, 25 Med. Surveillance Monthly Rep. 10 (2018). Additionally, 
``cold injuries have continued to affect hundreds of service members 
each year because of exposure to cold and wet environments'' and 
``[s]uch environmental conditions pose the threat of hypothermia, 
frostbite, and nonfreezing cold injury such as immersion injury.'' Id. 
Whether in training or in forward operating locations, the risk of 
exposure to extreme temperatures can result in severe traumatic 
injuries, including amputations or coma. Finally, many servicemembers 
develop traumatic brain injury (TBI) from the effects of blast waves. 
Ralph G. DePalma, M.D., et al., Blast Injuries, 352 New Eng. J. of Med. 
1335-1342 (2005); David S. Plurad, Blast Injury, 176 Mil. Med. 276, 281 
(2011).
    VA also proposes to state in new paragraph (b)(1)(E) that an insect 
bite or sting or animal bite would qualify as a traumatic event. We are 
adding such bites because they involve application of an external force 
to the body that transmits an allergen or poison into the body. See 
Hargett v. Jefferson Standard Life Ins. Co., 128 S.E.2d 26, 31 (N.C. 
1962); Omberg v. U.S. Mut. Ass'n, 40 S.W. 909, 910 (Ky. Ct. App. 1897).

B. New Sec.  9.20(c)--Qualifying Traumatic Injury

    VA proposes to recodify current Sec.  9.20(c)(3) as new Sec.  
9.20(c)(4) and to add new paragraph (c)(3), which would state that 
anaphylaxis caused by a bug bite or sting or animal bite is a traumatic 
injury. VA is proposing to add anaphylaxis because this harm occurs 
immediately after such a sting or bite. This would be consistent with 
case law finding that an allergic reaction is covered under AD&D 
policies because it is not a disease. See Escoe v. Metro. Life Ins. 
Co., 35 N.Y.S.2d 833, 834 (N.Y. Sup. Ct. 1942) (death from allergy to 
sulfapyridine given to treat pneumonia was accident, not disease); 
Berkowitz v. N.Y. Life Ins. Co., 10 N.Y.S.2d 106, 111 (N.Y. App. Div. 
1939) (``mere predisposing tendency cannot be held as a matter of law 
to be an infirmity or disease''); Crisler v. Unum Ins. Co. of Am., 233 
SW3d 658, 663 (Ark. 2006) (allergic reaction to injection of antibiotic 
was not disease).

C. New Sec.  9.20(d)--Eligibility Requirements

1. New Sec.  9.20(d)(2)--Causation
    Section 1980A(c)(1) of title 38, United States Code, states that a 
qualifying loss must ``result[ ] directly from a traumatic injury . . . 
and from no other cause.'' VA codified this requirement in current 38 
CFR 9.20(d)(2). In addition, current 38 CFR 9.20(e)(4) states that a 
loss is not covered if it results from a physical or mental illness or 
disease or mental disorder, ``whether or not caused by a traumatic 
injury,'' other than the exceptions noted in paragraph (e)(4)(i).
    VA proposes to amend current Sec.  9.20(d)(2) to restate the 
statutory requirement that a scheduled loss must ``result directly from 
a traumatic injury . . . and from no other cause.'' Some courts have 
interpreted this phrase in AD&D and Employee Retirement Income Security 
Act case law to mean that a loss is not covered if a preexisting 
condition or disease ``substantially contributed'' to the loss. See, 
e.g., Dixon v. Life Ins. Co. of N. Am., 389 F.3d 1179, 1184 (11th Cir. 
2004); Ganapolsky v. Boston Mut. Life Ins. Co., 138 F.3d 446, 448 (1st 
Cir. 1998); House v. Life Ins. Co. of N. Am., 399 F. Supp. 2d 1254, 
1264-65 (N.D. Ala. 2005); Danz v. Life Ins. Co. of N. Am., 215 F. Supp. 
2d 645, 652 (D. Md. 2002) (citing Quesinberry v. Life Ins. Co. of N. 
Am., 987 F.2d 1017, 1028 (4th Cir. 1993) (en banc)). Based upon this 
case law, we propose to add paragraph (d)(2)(A), which would explain 
that, under this standard, a scheduled loss does not result directly 
from a traumatic injury and no other

[[Page 50975]]

cause if a pre-existing disease, illness, or condition substantially 
contributed to the loss. Thus, for example, if a member suffers a 
qualifying loss such as leg amputation and the member also suffers from 
a pre-existing condition such as diabetes, the member would not be 
eligible for TSGLI if the pre-existing diabetes substantially 
contributed to the amputation of the leg.
    We also propose to state in Sec.  9.20(d)(2)(A) that a scheduled 
loss does not result directly from a traumatic injury and no other 
cause if a post-service injury substantially contributes to the loss. 
For example, if a member suffers a leg injury in service and a post-
service injury to the same leg, and the member's leg is then amputated, 
the member would not be eligible for TSGLI if the post-service leg 
injury substantially contributed to the amputation.
    VA also proposes to add new paragraph (d)(2)(B) to clarify that a 
scheduled loss is a direct result of a traumatic injury if the loss is 
caused by a diagnostic procedure or a medical or surgical procedure 
that was used to treat the traumatic injury. Ins. Co. of N. Am. v. 
Thompson, 381 F.2d 677, 681 (9th Cir. 1967); 10 Couch on Insurance 3d 
Sec.  141:78, at 141-113 (1998). For example, if a member is injured in 
a motor vehicle accident, undergoes surgery to treat a back injury 
suffered in the accident, and is paralyzed because of the surgery, the 
scheduled loss would be covered by TSGLI. We would make a corresponding 
change in new Sec.  9.20(e)(3)(i)(C) to explain that TSGLI would be 
payable if a scheduled loss is caused by a diagnostic or medical or 
surgical procedure that was necessary to treat a traumatic injury.
2. New Sec.  9.20(d)(4)--Two-Year Loss Period
    Current Sec.  9.20(d)(4) requires a member to suffer a scheduled 
loss within two years of the traumatic injury. VA proposes to update 
the citation to the schedule of losses in Sec.  9.20(d)(4) by deleting 
``paragraph (e)(7) of this section'' and inserting instead ``Sec.  
9.21(c).''

D. New Sec.  9.20(e)--Scheduled Loss

1. New Sec.  9.20(e)(1)--Definition of Scheduled Loss
    VA proposes to update the reference to the schedule in current 
Sec.  9.20(e)(1) by deleting ``paragraph (e)(7) of this section'' and 
inserting instead ``Sec.  9.21(c).'' VA also proposes to add ``from no 
other cause'' to the definition of scheduled loss to correspond to 38 
U.S.C. 1980A(c)(1).
2. New Sec.  9.20(e)(3)--Exclusions
a. New Sec.  9.20(e)(3)(i)(C)--Medical Procedures & Treatment Exclusion
    Consistent with new paragraph (d)(2)(B), VA proposes to add the 
phrase ``unless the diagnostic procedure or medical or surgical 
treatment is necessary to treat a traumatic injury'' to the end of the 
paragraph to clarify that a scheduled loss caused by a diagnostic 
procedure or medical or surgical treatment that is necessary to a 
traumatic injury would be eligible for a TSGLI payment. This is 
consistent with AD&D case law. Thompson, 381 F.2d at 681.
b. New Sec.  9.20(e)(3)(ii)--Felony Exclusion
    Current Sec.  9.20(e)(3)(ii) specifies that TSGLI will not be paid 
if a member suffers a loss while committing or attempting to commit a 
felony. VA proposes to amend Sec.  9.20(e)(3)(ii) to clarify that this 
exclusion applies if a member suffers a loss while committing an act 
that violated a penal law classifying it as a felony. This approach is 
consistent with AD&D industry practice. See Williams v. Life Ins. Co. 
of N. Am., 117 F. Supp. 3d 1206, 1216 (W.D. Wash. 2015) (citing 
Allstate Ins. Co. v. Raynor, 969 P.2d 510, 516 (Wash. Ct. App. 1999)).
3. New Sec.  9.20(e)(6)--Definitions
    We propose to amend current Sec.  9.20(e)(6) by recodifying 
paragraph (i)-(vi) and (xiii)-(xxix), which are relevant to the 
schedule of losses, in new Sec.  9.21, adding definitions of the 
following terms that are relevant to Sec.  9.20, and alphabetizing all 
the definitions in new paragraph (e)(6). For example, we propose to 
incorporate the definitions of ``quadriplegia,'' ``paraplegia,'' 
``hemiplegia,'' ``uniplegia,'' and ``complete and irreversible 
paralysis'' in current Sec.  9.20(e)(6)(i)-(v) and the definition of 
``permanent'' in new Sec.  9.21(a)(10) into the criteria for 
quadriplegia, paraplegia, hemiplegia, and uniplegia in new Sec.  
9.21(c)(4)-(7). In another example, we propose to incorporate the 
definitions in current Sec.  9.20(e)(6)(xxi)-(xxix) and the definition 
of ``permanent'' in new Sec.  9.21(a)(10) into the criteria for 
genitourinary losses in new Sec.  9.21(c)(19).
a. External Force
    VA would define ``external force'' in new Sec.  9.20(e)(6)(iv) to 
mean a ``sudden or violent impact from a source outside of the body 
that causes an unexpected impact and is independent of routine body 
motions such as twisting, lifting, bending, pushing, or pulling.'' This 
proposed definition is consistent with AD&D practice that excludes such 
routine body activities as traumatic events. See e.g., Mutual Life Ins. 
Co. v. Hassing, 134 F.2d 714, 716 (10th Cir. 1943) (AD&D policy 
requiring bodily injury effected solely through external, violent, 
accidental means). For example, a sprained ankle suffered while running 
would not be considered a traumatic event because the damage was not 
caused by an external force but rather by stretching or tearing 
ligaments. https://www.mayoclinic.org/diseases-conditions/sprained-ankle/symptoms-causes/syc-20353225. However, a fall that causes a 
herniated disc would constitute a traumatic event because the damage to 
the body was caused by hitting the ground, i.e., an external force.
b. Ingestion
    VA proposes to define ``ingestion'' in new Sec.  9.20(e)(6)(v) to 
mean ``to take into the gastrointestinal tract by means of the mouth.'' 
This definition is consistent with the common meaning of the term. See 
United States v. Ten Cartons, 888 F. Supp. 381, 393 (E.D.N.Y. 1995), 
aff'd, 10 F.3d 285 (2d Cir. 1995).
c. Medically Incapacitated
    VA proposes to define the term ``medically incapacitated'' in new 
paragraph (e)(6)(vii) to mean an ``individual who has been determined 
by a medical professional to be physically or mentally impaired by 
physical disability, mental illness, mental deficiency, advanced age, 
chronic use of drugs or alcohol, or other causes that prevent 
sufficient understanding or capacity to manage his or her own affairs 
competently.''

E. New Sec.  9.20(f)--TSGLI Application Process

    VA proposes to recodify current Sec.  9.20(f), which contains the 
schedule of losses, in new 38 CFR 9.21(c), recodify current Sec.  
9.20(h), which explains the TSGLI application process, as new Sec.  
9.20(f), and amend new paragraph (f).
    VA proposes to clarify in new Sec.  9.20(f)(1)(i) that a medical 
professional must complete and sign Part B of the Application for TSGLI 
Benefits Form in addition to the requirement that a member complete and 
sign Part A of the Application for TSGLI Benefits Form, i.e., both Part 
A and Part B must be completed to initiate a claim for TSGLI benefits. 
VA would also explain that a member must submit evidence substantiating 
that the member suffered a traumatic injury and resulting loss. This 
clarification is intended to indicate

[[Page 50976]]

that Part A alone is insufficient documentation to support eligibility 
for TSGLI benefits.
    VA would also add a requirement to new Sec.  9.20(f)(1)(ii) that, 
if a medical professional certifies in Part B of the Application for 
TSGLI Benefits Form that a member is medically incapacitated, the Form 
must be signed by a guardian; an agent or attorney acting under a valid 
Power of Attorney; military trustee as available, in that order. We 
propose to change ``legally incapacitated'' to ``medically 
incapacitated'' to make the regulation consistent with 38 U.S.C. 
1980A(k)(1) and (2)(B), which provides for appointment of a fiduciary 
or trustee of a servicemember who is ``medically incapacitated.''
    VA would also recodify Sec.  9.20(h)(1)(iii) as Sec.  
9.20(f)(1)(iii).
    Finally, VA would recodify Sec.  9.20(h)(2) as Sec.  9.20(f)(2) and 
amend the paragraph by deleting the current citations to the schedule 
of losses and inserting citations to new Sec.  9.21(c).

F. New Sec.  9.20(g)--Uniformed Service Decision on TSGLI Claim

    VA proposes to add a regulation explaining both who decides a TSGLI 
claim and the decision-making process, which would be codified as new 
Sec.  9.20(g). Current Sec.  9.20(g), which states that the uniformed 
service to which a member belongs certifies whether the member was 
insured under SGLI at the time of the traumatic injury and whether the 
member sustained a qualifying loss, would be recodified as new Sec.  
9.20(g)(1) with non-substantive changes.
    Paragraph (g)(2) would state that the uniformed service office may 
request additional evidence from the member if the record does not 
contain sufficient evidence to decide the claim.
    Paragraph (g)(3) would require the uniformed service office to 
consider all medical and lay evidence of record, including all evidence 
provided by the member, and determine its probative value. The 
probative value of medical evidence may depend upon whether a medical 
professional examined the servicemember; treated the member on an 
ongoing basis; provides relevant and objective evidence to support an 
opinion; or provides an opinion that is consistent with other evidence 
of record. The probative value of lay evidence may depend upon 
consistency with a member's service records and other lay and medical 
evidence of record.
    Paragraph (g)(3) would also adopt the benefit of the doubt 
evidentiary standard for adjudication of TSGLI claims. The Supreme 
Court has long recognized that the character of the veterans' benefits 
statutes is strongly and uniquely pro-claimant. See, e.g., Fishgold v. 
Sullivan Drydock & Repair Corp., 328 U.S. 275, 285 (1946) (liberally 
construing Selective Training and Service Act of 1940, 54 Stat. 885, 50 
U.S.C. App. Sec.  301, ``for the benefit of those who left private life 
to serve their country in its hour of great need''); Coffy v. Republic 
Steel Corp., 447 U.S. 191, 196 (1980); Brown v. Gardner, 513 U.S. 115, 
118 (1994). Congress itself has recognized and preserved the unique 
character and structure of the veterans' benefits system. When enacting 
the Veterans' Judicial Review Act, Public Law 100-687, 102 Stat. 4105 
(1988), Congress stated its expectation that VA would ``resolve all 
issues by giving the claimant the benefit of any reasonable doubt.'' 
H.R. Rep. No. 100-963, at 13 (1988), reprinted in 1988 U.S.C.C.A.N. 
5782, 5794-95.
    Although TSGLI entitlement is adjudicated by the uniformed services 
not VA, we believe that the benefit of the doubt standard should 
similarly be applied to adjudication of entitlement to TSGLI, which 
provides benefits to members who were seriously injured while serving 
the United States and which VA administers on behalf of the uniformed 
services. 38 U.S.C. 1980A. In addition, the uniformed services apply 
the benefit of the doubt in determining a member's unfitness for 
service because of physical disability and when evaluating members for 
compensable conditions. DoD Instruction 1332.18, App'x 2 to Encl. 3, 
para. 6.a.(2) and App'x 3 to Encl. 3, para. 7.i. (2014); see Army Reg. 
635-40, para. 5-6.a. (2017) (benefit of doubt will be resolved in favor 
of member's fitness for duty under presumption that member desires to 
be found fit for duty).
    The benefit of the doubt would apply only when the positive and 
negative evidence relating to the member's TSGLI claim are 
approximately balanced. E.g., Ortiz v. Principi, 274 F.3d 1361, 1365-66 
(Fed. Cir. 2001). If the preponderant evidence weighs against the 
member's TSGLI claim, the evidence is not approximately balanced, and 
the benefit of the doubt rule would not resolve the issue in favor of 
the member because there is no doubt to be resolved. Id.
    New Sec.  9.20(g)(4) would contain the first sentence of current 
paragraph (i)(1), which explains that notice of a decision on a TSGLI 
claim must include notice of appellate rights. VA would also state in 
new Sec.  9.20(g)(4) that an adverse decision must include a statement 
of the reasons for the decision and a summary of the evidence 
considered. See O'Neill v. United States, No. 11-2584, 2013 WL 6579039 
(D. Col. Dec. 13, 2013) (citing Dickson v. Sec'y of Defense, 68 F.3d 
1396 (D.C. Cir. 1995)).

G. New Sec.  9.20(h)--Appeal of TSGLI Decision

    VA proposes to recodify the rest of current Sec.  9.20(i), which 
addresses appeals of TSGLI decisions, as new Sec.  9.20(h) and would 
amend the regulation as explained below.
    New Sec.  9.20(h)(1) would state that each uniformed service has 
established its own, three-tiered TSGLI appellate process, i.e., 
reconsideration, followed by a second-level appeal and then a third-
level appeal. The paragraph would also make clear that persons 
appealing an eligibility determination to the uniformed services must 
utilize the appeal process of the uniformed service that issued the 
original decision. See, e.g., SECNAV Instruction 1770.4A, Encl. (1), 
para. 8. (2019) (following reconsideration by TSGLI branch-of-service 
adjudicator and review by TSGLI Appeals Board, member may appeal to 
Board for Correction Naval Records). The names of the reviewing offices 
may differ among the uniformed services, and the proposed rules thus 
would use the generic terms ``second-level'' and ``third-level'' to 
describe the common appellate structure. The notice provided by the 
uniformed services under proposed Sec.  9.20(g)(4) will identify the 
relevant second-level or third-level office of the uniformed service as 
appropriate. VA would also include a reference to paragraph (f)(1)(ii) 
and (iii) in paragraph (h)(1) for the current list of persons other 
than the member who may submit an appeal.
    New paragraph (h)(1)(A) would explain reconsideration, which is the 
first appellate tier. VA proposes to state in new paragraph 
(h)(1)(A)(i) that a member, or other person eligible to submit a claim 
under paragraph (f)(1)(ii) or (iii), initiates reconsideration of an 
eligibility determination, such as whether the loss occurred within 730 
days of the traumatic injury, whether the member was insured under 
Servicemembers' Group Life Insurance when the traumatic injury was 
sustained, or whether the injury was self-inflicted or whether a loss 
of hearing was total and permanent, by filing a written notice of 
appeal within one year of the eligibility decision with the office of 
the uniformed service identified in the decision. This amendment would 
also require that the request for reconsideration identify the issues 
for which reconsideration is sought. As a result, VA would delete

[[Page 50977]]

current paragraph (i)(2), which states that appeal of whether a member 
was insured under SGLI must be appealed to the Office of 
Servicemembers' Group Life Insurance. Section 1980A(f) of title 38, 
United States Code, requires the Department of Defense or Secretary 
concerned to ``certify'' whether a member was ``insured under [SGLI]'' 
at the time of injury and ``sustained a qualifying loss.'' We believe 
that it would be consistent with this statute for the uniformed service 
to decide appeals of all issues including SGLI coverage.
    Proposed paragraph (h)(1)(A)(i) would also state that an appeal of 
an eligibility determination, such as whether a loss occurred within 
``730 days,'' rather than ``365 days'' (as stated in current Sec.  
9.20(i)(1)), must be in writing. This change in the number of days 
would comport with 38 CFR 9.20(d)(4), which states that a scheduled 
loss must occur within two years of the traumatic injury and corrects 
an oversight in a 2007 TSGLI rulemaking. 72 FR 10362 (Mar. 8, 2007).
    New paragraph (h)(1)(A)(ii) would state that the uniformed service 
TSGLI office will reconsider the claim, including evidence submitted 
with the notice of appeal by or on behalf of the member that was not 
previously part of the record before the uniformed service, and decide 
the claim.
    New paragraph (h)(1)(B) would explain the second tier of appellate 
review. VA proposes to state in new paragraph (h)(1)(B)(i) that an 
appeal of a reconsideration decision is initiated by filing, with the 
second-level appeal office of the uniformed service within one year of 
the reconsideration decision, a written notice of appeal that 
identifies the issues being appealed. New paragraph (h)(1)(B)(ii) would 
state that the second-level appeal office will review the claim, 
including evidence submitted with the notice of appeal by or on behalf 
of the member that was not previously part of the record before the 
uniformed service, and decide the claim.
    New paragraph (h)(1)(C) would explain the third tier of appellate 
review. VA proposes to state in new paragraph (h)(1)(C)(i) that an 
appeal of a decision by the second-level appeal office is initiated by 
filing, with the third-level appeal office of the uniformed service 
within one year of the date of the decision by the second-level appeal 
office of the uniformed service, a written notice of appeal that 
identifies the issues being appealed. New paragraph (h)(1)(C)(ii) would 
state that the third-level appeal office will review the claim, 
including evidence submitted with the notice of appeal by or on behalf 
of the member that was not previously part of the record before the 
uniformed service, and decide the claim.
    New paragraph (h)(2) would state that, if a timely notice of appeal 
seeking reconsideration of the initial decision by the uniformed 
service or seeking review of the decision by the second-level uniformed 
service appeal office is not filed, the initial decision by the 
uniformed service or the decision by the second-level uniformed service 
appeal office, respectively, shall become final, and the claim will not 
thereafter be readjudicated or allowed except as explained in new 
paragraph (h)(3).
    VA proposes in new paragraph (h)(3)(i) that, if new and material 
evidence is submitted with respect to a claim that has been finally 
disallowed, the uniformed service office will consider the evidence, 
determine its probative value, and readjudicate the claim. VA would 
define new and material evidence in paragraph (h)(3)(i) as ``evidence 
that was not previously part of the record before the uniformed 
service, is not cumulative or redundant of evidence of record at the 
time of the prior decision and is likely to have a substantial effect 
on the outcome.'' See 32 CFR 723.9 (defining new and material evidence 
for purposes of reconsideration of a final decision by Board for 
Correction of Naval Records); Jackson v. Mabus, 808 F.3d 933, 936 (D.C. 
Cir. 2015).
    VA proposes to add paragraph (h)(3)(ii), which would state that a 
finding that the evidence submitted is not new and material may be 
appealed using the process in paragraph (h)(1).
    VA would recodify current paragraph (i)(3) as new Sec.  9.20(h)(4). 
New Sec.  9.20(h)(4) would restate the sentence in current Sec.  
9.20(i)(3). VA also proposes to explain that a member who files suit in 
U.S. district court after an adverse initial decision on a TSGLI claim 
by a uniformed service would be precluded from filing an appeal with 
the uniformed service identified in the decision if the lawsuit is 
pending before a U.S. district court, U.S. court of appeals, or U.S. 
Supreme Court or the time for appeal or filing a petition for a writ of 
certiorari has not expired. Paragraph (h)(4) would also state that, if 
a member appeals a decision to a U.S. district court after filing an 
appeal with a uniformed service, the appeal with the uniformed service 
would be stayed if the lawsuit is pending before a U.S. district court, 
U.S. court of appeals, or U.S. Supreme Court or the time for appeal or 
a petition for a writ of certiorari has not expired. This amendment is 
intended to streamline the TSGLI appellate process and prevent 
multiple, concurrent reviews of TSGLI appeals.

H. New Sec.  9.20(i)--Payment of TSGLI

    VA would recodify current Sec.  9.20(j) as new Sec.  9.20(i). VA 
would delete the word ``title'' in the text preceding current Sec.  
9.20(j)(1) and would amend new paragraph (i)(1) to correspond to 
proposed Sec.  9.20(f)(1)(ii). New paragraph (i)(1) would state that a 
member's guardian, agent or attorney acting under a valid Power of 
Attorney, or trustee will be paid the TSGLI benefit if a medical 
professional has certified that the member is medically incapacitated 
in Part B of the Application for TSGLI Benefits Form. As explained 
above, we have changed ``legally incapacitated'' to ``medically 
incapacitated'' to make the regulation consistent with 38 U.S.C. 
1980A(k)(1) and (2)(B).

I. New Sec.  9.20(j)--Administration of TSGLI Program

    VA would recodify current Sec.  9.20(k) as new Sec.  9.20(j).

III. New Sec.  9.21--Schedule of Losses

    VA proposes to recodify current Sec. Sec.  9.21 and 9.22 as new 
Sec. Sec.  9.22 and 9.23. VA also proposes add new Sec.  9.21, which 
would: (1) Recodify certain definitions that are pertinent to the 
schedule of losses and are currently in Sec.  9.20(e)(6) in new Sec.  
9.21(a) and amend certain definitions; (2) move criteria for certain 
losses from the definitions to the schedule of losses; (3) recodify the 
text preceding the current schedule as new Sec.  9.21(b); (4) recodify 
the schedule of losses in current Sec.  9.20(f) as new Sec.  9.21(c); 
and (5) amend the criteria for certain losses.

A. New Sec.  9.21(a)--Definitions of Terms

    VA proposes to recodify definitions in current Sec.  9.20(e)(6) 
that are relevant to the schedule in new Sec.  9.21(a), amend certain 
existing definitions pertinent to the schedule, and add new definitions 
for terms not currently defined. In addition, current 38 CFR 
9.20(e)(6)(i)-(iv) and (xiv)-(xxix) are in fact criteria for losses in 
the schedule rather than definitions. VA would therefore recodify these 
criteria in the schedule itself in new Sec.  9.21(c) rather than define 
them in new Sec.  9.21(a). This would also make it easier for 
adjudicators to decide claims because they could find all relevant 
criteria in the schedule.
1. Avulsion
    In new Sec.  9.21(a)(5), VA would define the term ``avulsion'' for 
purposes of new Sec.  9.21(c)(16) pertaining to facial reconstruction 
to mean a forcible

[[Page 50978]]

detachment or tearing of bone and/or tissue due to a penetrating 
injury.
2. Consecutive
    In new Sec.  9.21(a)(6), VA would define ``consecutive'' to mean 
``to follow in uninterrupted succession.'' This definition is 
consistent with the well-accepted meaning of the term. Black's Law 
Dictionary 304 (6th ed. 1990) (defining ``consecutive'' as 
``[s]uccessive; succeeding one another in regular order; to follow in 
uninterrupted succession''); Hill v. Tenn. Rural Health Improvement 
Ass'n, 882 SW2d 801, 803 (Tenn. Ct. App. 1994).
3. Discontinuity Defect
    In new Sec.  9.21(a)(7), VA proposes to define ``discontinuity 
defect'' pertaining to facial reconstruction under new Sec.  
9.21(c)(16) to mean the absence of bone and/or tissue from its normal 
bodily location, which interrupts the physical consistency of the face 
and impacts at least one of the following functions: Mastication, 
swallowing, vision, speech, smell, or taste. The requirement that a 
discontinuity defect must impact mastication, swallowing, vision, 
speech, smell, or taste is intended to provide TSGLI benefits to 
members who cannot perform key facial functions without replacement of 
the bone or tissue from another part of the body or manufactured bone 
or tissue.
4. Hospitalization
    VA proposes to recodify the definition of ``hospitalization'' in 
current Sec.  9.20(e)(6)(xiii) at new Sec.  9.21(a)(8) and to amend the 
definition to mean admission to a ``hospital'' as defined in 42 U.S.C. 
1395x(e), which includes both inpatient critical care and inpatient 
rehabilitation facilities, or a ``skilled nursing facility'' under 42 
U.S.C. 1395i-3(a). Experts we consulted indicated that patients with 
severe physical injuries covered by the schedule of losses are usually 
treated in a hospital and then an inpatient rehabilitation or skilled 
nursing care. We therefore intend for the periods of hospitalization 
required by the schedule to continue if a member is receiving treatment 
in a hospital or skilled nursing facility.
5. Inability To Carry Out Activities of Daily Living (ADLs)
    Congress specified in 38 U.S.C. 1980A(b)(1)(H) that the inability 
to carry out ADLs resulting from a TBI is a qualifying loss. In this 
rulemaking, VA proposes to recodify current Sec.  9.20(e)(6)(vi) as new 
Sec.  9.21(a)(9), amend the definition, and define terms used in the 
amended definition.
    The term ``inability to carry out the activities of daily living'' 
is defined in 38 U.S.C. 1980A(b)(2)(D) and current 38 CFR 
9.20(e)(6)(vi) as the ``inability to independently perform at least'' 
two of six functions. VA proposes to delete ``independently'' from the 
definition of ADL because it is subject to varying interpretations and 
to clarify the term by stating in new Sec.  9.21(a)(9) that the 
inability to carry out activities of daily living means that a medical 
professional documents that a member is unable to perform two of the 
six functions without assistance from another person, even if the 
member uses accommodating equipment or adaptive behavior while 
performing the functions. In order to further explain this definition, 
VA proposes to define the terms ``accommodating equipment,'' ``adaptive 
behavior,'' and ``assistance from another person'' in new Sec.  
9.21(a)(1), (2), and (4), respectively.
    VA would define ``accommodating equipment'' in new paragraph (a)(1) 
to mean tools or supplies that enable a member to perform an ADL 
without assistance from another person, including, but not limited to, 
the following: wheelchair; walker or cane; reminder applications; 
Velcro clothing or slip-on shoes; grabber or reach extender; raised 
toilet seat; wash basin; shower chair; or shower or tub modifications 
such as wheelchair access or no-step access, grab-bar, or handle.
    VA proposes to define the term ``adaptive behavior'' in new 
paragraph (a)(2) to mean compensating skills that allow a member to 
perform an ADL without assistance from another person.
    VA proposes to define the term ``assistance from another person'' 
in new paragraph (a)(4) to mean that a member, even while using 
accommodating equipment or adaptive behavior, is nonetheless unable to 
perform an activity of daily living unless a person physically supports 
the member, is needed to be within arm's reach of the member to provide 
assistance because the member's ability fluctuates, or provides oral 
instructions to the member while the member attempts to perform the 
ADL. A medical professional must document that a member requires 
assistance from another person, even while the member is using 
accommodating equipment and/or adaptive behavior, to perform two of the 
six ADLs.
    VA also proposes to define each of the six functions in new Sec.  
9.21(a)(9)(A) through (F), as discussed below. These definitions are 
based primarily on the Katz Index of Independence in Activities of 
Daily Living, one of the most commonly used tools to assess basic ADLs. 
Michelle E. Mlinac and Michelle C. Feng, Assessment of Activities of 
Daily Living, Self-Care, and Independence, 31 Archives of Clinical 
Neuropsychology 506-516 (2016).
a. Bathing
    VA proposes to define the term ``bathing'' to mean washing, while 
in a shower or bathtub or using a sponge bath, at least three of the 
six following regions of the body in its entirety: Head and neck, back, 
front torso, pelvis (including the buttocks), arms, or legs. For 
example, if a member is unable to bathe three or more regions of the 
body in a tub or shower without assistance from another person, even 
while the member uses accommodating equipment or adaptive behavior 
while bathing, the member would be unable to independently bathe. 
However, if a member is able to bathe all but two parts of the body via 
a sponge bath without such assistance, accommodating equipment or 
adaptive behavior, the member would be considered able to bathe.
b. Continence
    VA proposes to define the term ``continence'' to mean complete 
control of bowel and bladder functions or management of a catheter or 
colostomy bag, if present.
c. Dressing
    VA proposes to define the term ``dressing'' to mean obtaining 
clothes and shoes from a closet or drawers and putting on the clothes 
and shoes, excluding tying shoelaces or use of belts, buttons, or 
zippers. If a member can use accommodating equipment to obtain and put 
on clothes and shoes and does not require assistance from another 
person, the member would be able to perform this ADL. For example, if a 
member can use slip-on shoes, clothing without buttons, or clothing 
with elastic bands and does not require assistance from another person, 
the member would be able to dress.
d. Eating
    VA proposes to define the term ``eating'' to mean moving food from 
a plate to the mouth or receiving nutrition via a feeding tube or 
intravenously, and to exclude preparing or cutting food or obtaining 
liquid nourishment through a straw or cup.
e. Toileting
    VA proposes to define the term ``toileting'' to mean getting on and 
off the toilet, taking clothes off before toileting and putting on 
clothes after toileting, cleaning organs of excretion

[[Page 50979]]

after toileting, or using a bedpan or urinal.
f. Transferring
    VA proposes to define the term ``transferring'' to mean moving in 
and out of a bed or chair.
6. Permanent
    VA proposes to define the term ``permanent'' in new Sec.  
9.21(a)(10) to mean clinically stable and reasonably certain to 
continue throughout the lifetime of the member.
7. Therapeutic Trip
    VA proposes to define the term ``therapeutic trip'' in new Sec.  
9.21(a)(11) as a hospital or facility-approved pass, signed by the 
member's attending physician, to leave a hospital or facility, as 
defined in 42 U.S.C. 1395x(e) or 1395i-3(a), respectively, accompanied 
or unaccompanied by hospital or facility staff, as part of a member's 
treatment plan and with which the member is able to return without 
having to be readmitted to the hospital or facility. VA research 
indicated that such trips are often part of the treatment plan for 
individuals with traumatic brain injury, allowing the member and 
treatment team to evaluate how the member handles outside stimuli in 
his or her home or other environments. Because these therapeutic trips 
are part of a member's treatment, we intend for any period of 
hospitalization to include such trips.

B. New Sec.  9.21(b)--Requisite Period of Consecutive Days for 
Scheduled Losses

    VA proposes to recodify the text preceding the schedule of losses 
in current Sec.  9.20(f) in new Sec.  9.21(b)(1)-(2) and to amend the 
text.
    New Sec.  9.21(b)(3) would explain the calculation of the required 
periods of consecutive days of losses in new Sec.  9.21(c)(17), (18), 
(20), and (21). New Sec.  9.21(b)(3)(A) would state that a period of 
consecutive days of loss that is interrupted by a day or more during 
which the criteria for the scheduled loss are not satisfied will not be 
added together with a subsequent period of consecutive days of loss. 
The counting of consecutive days starts over at the end of any period 
in which the criteria for a loss are not satisfied. For example, if a 
member has an ADL loss due to traumatic injury other than traumatic 
brain injury (OTI) for 31 days, regains the ability to carry out ADLs 
for two months, and then has a setback and is unable to carry out ADL 
for another 30 days, these two periods of ADL loss would not be added 
together to meet the 60-day payment milestone for ADL loss under 
paragraph (c)(20). Rather, the member would be entitled to an 
additional TSGLI payment under paragraph (c)(20) only if the second 
period of ADL loss lasts for 60 consecutive days.
    New Sec.  9.21(b)(3)(B) would state that, if a loss with a required 
time period milestone begins but is not completed within two years of 
the traumatic injury, the loss would nonetheless qualify for TSGLI if 
the requisite time period of loss continues uninterrupted and concludes 
after the end of the two-year period. For example, if a member suffered 
a TBI on January 1, 2018 and was unable to perform ADLs due to the TBI 
from December 15, 2019, through January 14, 2020, the member would be 
eligible for TSGLI for this time period because the period of ADL loss 
started within the two-year time limit and continued without 
interruption after the two-year limit.
    Section 9.21(b)(3)(B) would also state that, if a member suffers a 
period of loss that continues uninterrupted immediately after the 
period of loss that concluded after expiration of the two-year time 
limit, the member would be entitled to TSGLI for this time period of 
loss. For example, if the member who suffered ADL loss from December 
15, 2019, through January 14, 2020, suffered another loss of ADLs that 
continued uninterrupted from January 15, 2020, until February 14, 2020, 
the member would be entitled to a TSGLI benefit for this period of loss 
as well. However, if the second period of loss of ADLs did not commence 
until January 20, 2020, TSGLI would not be payable for another period 
of loss.

K. New Sec.  9.21(c)(1)-(21)--Schedule of Losses

    VA proposes to recodify current Sec.  9.20(f)(1)-(21) as new Sec.  
9.21(c)(1)-(21), incorporate definitions in current Sec.  9.20(e)(6)(i) 
through (v) and (xiv) through (xxix) in the paragraphs in new Sec.  
9.21(c) to which they pertain because they are in fact criteria rather 
than definitions for these losses, and amend certain losses as 
explained below.
1. New Sec.  9.21(c)(2)--Total and Permanent Loss of Hearing
    VA proposes to amend the criteria for total and permanent loss of 
hearing to explain that hearing acuity must be measured using pure tone 
audiometry (air conduction testing) without use of an amplification 
device. Pure tone audiometry is a very common and accepted method of 
testing hearing in the medical field. See 38 CFR 4.85(a).
2. New Sec.  9.21(c)(7)--Uniplegia
    VA proposes to amend the note in new Sec.  9.21(c)(7) because of 
the new tiered payment structure for limb reconstruction under new 
Sec.  9.21(c)(14) and (15). Under the current schedule in Sec.  
9.20(f)(7), the TSGLI payment for uniplegia cannot be combined with the 
payments for limb salvage or amputation of the same limb, because the 
initial payment for uniplegia, i.e., $50,000, is the same for all three 
losses and provides financial support for the member during the 
rehabilitation period. 73 FR 71,926, 71,928 (Nov. 26, 2008). However, 
as explained below, VA proposes to amend new Sec.  9.21(c)(14) and (15) 
to provide payments ranging from $25,000 to $50,000 for limb 
reconstruction, depending upon the number and type of surgeries 
required. VA therefore proposes to revise the note in new Sec.  
9.20(c)(7) to explain that: (1) Payment for uniplegia of the arm or leg 
cannot be combined with loss for amputation of the same arm under new 
paragraph (c)(9) or (10) or of the same leg under new paragraph (c)(11) 
or (12); and (2) the higher TSGLI payment will be made for uniplegia 
under new paragraph (c)(7) or limb reconstruction under new paragraph 
(c)(14) or (15) for the same limb.
3. New Sec.  9.21(c)(8)--Burns
    Under current Sec.  9.20(e)(6)(xvii) and (f)(8), a TSGLI benefit of 
$100,000 is payable for ``2nd degree (partial thickness) or worse burns 
covering at least 20 percent of the body, including the face and head, 
or 20 percent of the face alone.'' However, the experts we consulted 
indicated that, even though the American Burn Association standard for 
referral to a Burn Center is partial thickness burns (or worse) of 
greater than 10% total body surface area (TBSA), patients with full 
thickness burns of at least 20% TBSA have more extensive rehabilitation 
needs and risk of complications than patients with partial thickness 
burns of at least 20% TBSA that do not require grafting. http://ameriburn.org/wp-content/uploads/2017/05/acs-resources-burn-chapter-14.pdf. Additionally, these specialists noted that the location of the 
burn on the body has a major impact on rehabilitation. For example, 
burns requiring skin grafts to joints and other body parts involved in 
ADL significantly lengthen rehabilitation periods.
    VA proposes that new Sec.  9.21(c)(8) pertaining to burns would 
incorporate current medical terminology for severity determinations of 
burns, specifically using ``partial thickness'' in place of

[[Page 50980]]

``2nd degree'' burns and ``full thickness'' in place of ``or worse.'' 
http://ameriburn.org/quality-care/mass-casualty/burn-care-and-prevention. Based upon the experts' advice, VA would also provide 
tiered payments based upon the varying levels of rehabilitation 
associated with various types and extent of burns. VA would state at 
the beginning of new paragraph (c)(8) that the percentage of the body 
burned may be measured using the Rule of Nines or any means of 
measurement generally accepted within the medical profession. Also, 
under new paragraph (c)(8), a member with partial thickness burns 
covering 20 percent of the face or body, without the need for skin 
grafting, would be entitled to $50,000. A member suffering partial 
thickness burns or worse located on the face, hands, feet, genitalia, 
perineum, ankles, knees, hips, wrists, elbows or shoulders that require 
skin grafting or full thickness burns covering 20 percent of the face 
or body would be entitled to $100,000.
    VA also proposes to add a note at the end of new paragraph (c)(8) 
explaining that road rash is an abrasion and not a burn and therefore 
will be evaluated for loss purposes under new Sec.  9.21(c)(20) or 
(21). https://www.merriam-webster.com/dictionary/road%20rash.
4. New Sec.  9.21(c)(9)--Amputation of a Hand at or Above the Wrist
    VA proposes to revise the note at the end of new Sec.  9.21(c)(9) 
to state that: (1) Payment for amputation of the hand cannot be 
combined with payment for loss due to uniplegia under new paragraph 
(c)(7) or amputation at or above the metacarpophalangeal joints under 
new paragraph (c)(10) for the same hand; and (2) the higher payment 
will be made for either amputation of the hand under new paragraph 
(c)(9) or limb reconstruction of the arm under new paragraph (c)(14). 
As explained above, these proposed amendments are necessitated by the 
new tiered limb reconstruction standard.
5. New Sec.  9.21(c)(10)--Amputation at or Above the 
Metacarpophalangeal Joint(s) of Either the Thumb or the Other 4 Fingers 
of 1 Hand
    VA proposes to revise the note at the end of new Sec.  9.21(c)(10) 
to state that: (1) Payment for amputation of 4 fingers on 1 hand or 
thumb alone cannot be combined with payment for loss due to uniplegia 
or amputation of the same hand under new paragraph (c)(7) or (c)(9), 
respectively; and (2) payment will be made for the higher payment for 
amputation of 4 fingers on 1 hand or thumb alone under new paragraph 
(c)(10) or loss due to limb reconstruction of the arm for the same 
hand/arm under new paragraph (c)(14). These proposed amendments are 
necessitated by the new tiered limb reconstruction standard.
6. New Sec.  9.21(c)(11)--Amputation of a Foot at or Above the Ankle
    VA proposes to amend the note at the end of new Sec.  9.21(c)(11) 
to state that: (1) Payment for loss under new paragraph (c)(11) cannot 
be combined with the loss due to uniplegia or amputation of the foot 
below the ankle under new paragraph (c)(7) or (12), respectively; and 
(2) payment will be made for the higher payment for amputation of foot 
under new paragraph (c)(11) or amputation of toes under new paragraph 
(c)(13) or loss due to limb reconstruction of the leg under new 
paragraph (c)(15). These proposed amendments are necessitated by the 
new tiered limb reconstruction standard.
7. New Sec.  9.21(c)(12)--Amputation at or Above the 
Metatarsophalangeal Joints of all Toes on 1 Foot
    VA proposes to revise the note at the end of new Sec.  9.21(c)(12) 
to state that: (1) Payment for amputation of all toes including the big 
toe on 1 foot cannot be combined with losses under new paragraph (c)(7) 
or (11) for the same foot; (2) the higher payment for amputation of all 
toes including the big toe on 1 foot under new paragraph (c)(12) or 
loss under new paragraph (c)(13) will be made for the same foot; and 
(3) the higher payment for amputation of all toes including the big toe 
on 1 foot under new paragraph (c)(12) or limb reconstruction of the leg 
under new paragraph (c)(15) will be made for the same foot. These 
proposed amendments are necessitated by the new tiered limb 
reconstruction standard.
8. New Sec.  9.21(c)(13)--Amputation at or Above the 
Metatarsophalangeal Joint(s) of Either the Big Toe, or the Other 4 Toes 
on 1 Foot
    VA proposes to add a note to new Sec.  9.21(c)(13) stating that: 
(1) The higher payment for amputation of big toe only, or other 4 toes 
on 1 foot, under new paragraph (c)(13) or uniplegia under new paragraph 
(c)(7) will be made for the same foot; (2) the higher payment for 
amputation of big toe only, or other 4 toes on 1 foot, under new 
paragraph (c)(13) or amputation of the foot at or above the ankle under 
new paragraph (b)(11) will be made for the same foot; (3) the higher 
payment for amputation of big toe only, or other 4 toes on 1 foot, 
under new paragraph (c)(13) or amputation at or above the 
metatarsophalangeal joints under new paragraph (c)(12) will be made for 
the same foot; and (4) the higher payment for amputation of big toe 
only, or other 4 toes on 1 foot, under new paragraph (c)(13) or limb 
reconstruction of the leg under new paragraph (c)(15) will be made for 
the same foot. These proposed amendments are necessitated by the new 
tiered limb reconstruction standard.
9. New Sec.  9.21(c)(14) and (15)--Limb Reconstruction
    Current Sec.  9.20(e)(6)(xix) defines the term ``limb salvage'' as 
``a series of operations designed to save an arm or leg with all of its 
associated parts rather than amputate it,'' and also states that a 
surgeon must certify that the ``option of amputation of the limb(s) was 
a medically justified alternative to salvage, and the patient chose to 
pursue salvage.'' However, TSGLI claim adjudicators, medical 
professionals, and claimants have indicated that the decision to choose 
salvage over amputation is a choice that is often not clearly indicated 
in medical records and, therefore, it is difficult to substantiate a 
claim for this loss.
    Also, experts we consulted indicated that surgical teams do not 
simply attempt to save or salvage a limb but also to reconstruct it to 
allow for a return to some degree of functionality for the patient. 
They also stated that the term ``reconstruction'' refers to rebuilding 
a limb's skin, bone, nerve, and vascular system rather than repairing a 
limb due to an open or closed fracture. Additionally, they stated that 
there are four types of injuries that require limb construction and 
four surgical procedures that constitute limb reconstruction. They 
stated that not every patient undergoes all four types of surgeries, 
but that at least one or more would be expected.
    Based on this input, VA proposes to change the term ``limb 
salvage'' to ``limb reconstruction'' in new Sec.  9.21(c)(14) and (15). 
To qualify for a loss based upon ``limb reconstruction,'' a surgeon 
would have to document that a member's limb has a: (1) Bony injury 
requiring bone grafting to re-establish stability and enable mobility 
of the limb; (2) soft tissue defect that requires grafting/flap 
reconstruction to reestablish stability and enable mobility of the 
limb; (3) vascular injury which requires vascular reconstruction to 
restore blood flow and support bone and soft tissue regeneration; or 
(4) nerve injury that requires nerve reconstruction to allow for motor 
and sensory restoration and muscle re-enervation. These criteria

[[Page 50981]]

would focus on the critical issue of whether the limb has such 
significant functional limitations from a traumatic event that a 
surgeon would be medically justified in offering a member the option of 
amputating the limb rather than reconstructing it.
    VA also proposes to create a tiered standard for loss for 
reconstruction of an arm or leg based upon the number and types of 
surgery required in new paragraphs (c)(14) and (15). If a member 
undergoes one of four surgeries, the member would receive $25,000. If a 
member has two or more surgeries, the member would be entitled to 
$50,000.
    VA also proposes to add a note to new paragraph (c)(14) stating 
that the higher payment for limb reconstruction of the arm or uniplegia 
under new paragraph (c)(7) will be made for the same arm. The note 
would also state that the higher payment for limb reconstruction of arm 
or amputation of a hand at or above the wrist under new paragraph 
(c)(9) will be made for the same arm, and that the higher payment for 
limb reconstruction of the arm or amputation at or above the 
metacarpophalangeal joint(s) of either the thumb or the other 4 fingers 
on 1 hand under new paragraph (c)(10) will be made for the same arm.
    VA proposes to add a note in new Sec.  9.21(c)(15) pertaining to 
limb reconstruction of a leg stating that: (1) The higher payment for 
limb reconstruction of leg or uniplegia under new paragraph (c)(7) will 
be made for the same leg; (2) the higher payment for limb 
reconstruction of the leg or amputation of a foot at or above the ankle 
under new paragraph (c)(11) will be made for the same leg; (3) the 
higher payment for limb reconstruction of leg or amputation at or above 
the metatarsophalangeal joints of all toes on 1 foot under new 
paragraph (c)(12) will be made for the same leg; and (4) the higher 
payment for limb reconstruction of leg or amputation at or above the 
metatarsophalangeal joint(s) of either the big toe, or the other 4 toes 
on 1 foot under new paragraph (c)(13) will be made for the same leg.
10. New Sec.  9.21(c)(16)--Facial Reconstruction
    VA proposes to amend the criteria for facial reconstruction in new 
Sec.  9.21(c)(16) to clarify the nature and extent of loss required for 
each payment under this paragraph. Discontinuity of the upper or lower 
jaw and eyes would require bone loss; discontinuity of the nose would 
require loss of cartilage or tissue; discontinuity of the upper or 
lower lip would require tissue loss; and discontinuity of facial areas 
would require loss of bone or tissue. We also propose to add a 
requirement that a surgeon document that the criteria for ``facial 
reconstruction'' are satisfied in order to establish the loss.
    VA also proposes to revise the second note in new paragraph (c)(16) 
by changing ``paragraphs 9.20(f)(1) through (18)'' to ``Sec.  
9.21(c)(1) through (19)'' to incorporate the 2012 amendments to the 
schedule that added genitourinary system losses and to make the note 
consistent with the recodification of the schedule. VA also proposes to 
add a third note stating that bone grafts for teeth implants would not 
constitute facial reconstruction under new paragraph (c)(16) because 
teeth implants do not involve a ``discontinuity defect'' of the jaw, 
which would be defined in new Sec.  9.21(a)(7) as ``the absence of bone 
and/or tissue from its normal bodily location.'' Teeth implants instead 
involve placing additional tissue on top of the existing jaw to build 
up the area for the implants. https://www.colgate.com/en-us/oral-health/cosmetic-dentistry/implants/single-tooth-implants.
11. New Sec.  9.21(c)(17)--Coma or TBI
    We have revised the title of this loss by omitting ``from traumatic 
injury'' because the phrase is redundant of new Sec.  9.20(e)(1) 
defining a ``scheduled loss'' as a condition in new Sec.  9.21(c) ``if 
directly caused by a traumatic injury.'' Current Sec.  
9.20(e)(6)(xviii) does not actually define ``coma,'' but rather 
contains the criterion for this scheduled loss. i.e., a Glasgow Coma 
Scale (GCS) Score of 8 or less. The GCS possible values range from 3, 
indicating deep coma, to 15, indicating normal consciousness. https://www.glasgowcomascale.org/faq. According to the Centers for Disease 
Control, a GCS score of 8 or less indicates a severe head Injury. 
https://www.cdc.gov/masstrauma/resources/gcs.pdf. We therefore propose 
to incorporate the criterion for ``coma,'' i.e., a Glasgow Coma Score 
of 8 or less, in the title of the loss.
12. New Sec.  9.21(c)(18)--Hospitalization Due to TBI
    VA proposes to revise the first note in new Sec.  9.21(c)(18) to 
explain that: (1) Payment for hospitalization would replace only the 
first milestone in new Sec.  9.21(c)(17), i.e., 15 consecutive days of 
coma or ADL loss; and (2) payment would be made for the 15-day period 
of hospitalization or the first period of coma or ADL loss, whichever 
occurs earlier.
    The note would also be amended to state that, once payment has been 
made under new Sec.  9.21(c)(18) based on hospitalization, coma, or ADL 
loss, a member would not be entitled to additional payments for a 
subsequent 15-day period of hospitalization due to the same traumatic 
injury. This proposed amendment aligns with 38 U.S.C. 1980A(a)(2), 
which states that, ``[i]f a member suffers more than one . . . 
qualifying loss as a result of traumatic injury from the same traumatic 
event, payment shall be made under [the schedule] for the single loss 
providing the highest payment.'' (Emphasis added.)
    Finally, VA would amend the note to state that, if a member 
receives a TSGLI payment under new Sec.  9.21(c)(18) based upon 
hospitalization, such payment may replace only the first payment for 
loss of ADLs under new paragraph (c)(17), and the member would be 
entitled to an additional payment for loss of ADLs only if the member 
reaches a subsequent milestone for loss of ADLs. For example, if a 
member suffers a TBI and is hospitalized for 16 days, the member would 
be entitled to a TSGLI payment for 15 days of hospitalization under new 
paragraph (c)(18). To obtain an additional payment for TBI based on 
loss of ADLs under new paragraph (c)(17), the member would have to 
suffer a loss of ADLs for an additional 14 days immediately after 
discharge from the hospital to reach the next payment milestone of 30 
consecutive days of ADL loss. If the member can perform ADLs 
immediately after discharge from the hospital and then later has a 
setback and loses ADLs, the consecutive day count would start anew.
    VA would also amend the second note in current Sec.  9.20(f)(18) to 
explain that the duration of hospitalization under new Sec.  
9.21(c)(17) includes any period of time for a therapeutic trip as 
defined in new Sec.  9.21(a)(11).
    Finally, TBI, mental illnesses, and brain or neurologic disorders 
can have similar symptomology and often require in-depth diagnostic 
assessment to discern which is present or if both may be present. See 
Jan E. Kennedy, et al., Posttraumatic Stress Disorder and Posttraumatic 
Stress Disorder-Like Symptoms and Mild Traumatic Brain Injury, 44 J. 
Rehabilitation Research & Dev. 895-920 (2007); D.G. Amen, et al., 
Functional Neuroimaging Distinguishes Posttraumatic Stress Disorder 
from Traumatic Brain Injury in Focused and Large Community Datasets, 10 
Plos One 1-22 (2015). Therefore, VA proposes to add a note to new Sec.  
9.21(c)(18) stating that, if a member is hospitalized for 15 
consecutive days for a diagnostic assessment for any mental illness 
and/or brain or neurologic disorder, and if

[[Page 50982]]

the assessment concludes that the member has a mental illness or brain 
or neurologic disorder only, the member would not be entitled to TSGLI 
under this paragraph. In such cases, the hospitalization would be 
caused solely by an illness or disease, such as posttraumatic stress 
disorder, which falls under the exclusions from traumatic injury 
pursuant to 38 CFR 9.20(c)(2)(i) and (ii). However, if a member is 
hospitalized for 15 consecutive days for a diagnostic assessment to 
determine whether the member has TBI, the loss would be payable if a 
member is diagnosed with TBI, TBI and PTSD, or PTSD and not TBI. If a 
member is hospitalized for 15 consecutive days for a diagnostic 
assessment to determine whether the member has PTSD, the loss would be 
payable if the member has TBI or TBI and PTSD.
13. New Sec.  9.21(c)(21)--Hospitalization Due to OTI
    VA proposes to amend the first and second notes under new Sec.  
9.21(c)(21) for loss based on hospitalization due to OTI. These 
amendments would be the same as the amendments to the first and second 
notes in new Sec.  9.21(c)(18). The first note in current Sec.  
9.20(f)(21) states that ``[p]ayment for hospitalization replaces the 
first payment period in loss 19.'' VA proposes to amend the note to 
refer to ``loss 20'' for OTI resulting in inability to perform ADLs 
rather than loss 19 and to state that payment for hospitalization would 
only replace the first milestone in new Sec.  9.21(c)(20), i.e., 30 
consecutive days of ADL loss. This corrects a scrivener's error in 2011 
when genitourinary losses were added to the schedule of losses. 76 FR 
75458 (Dec. 2, 2011).
    The first note would also be amended to state that payment would be 
made for the 15-day period of hospitalization or the first period of 
ADL loss, whichever occurs earlier and that, once payment has been made 
under new Sec.  9.21(c)(20) on the basis of hospitalization or ADL 
loss, a member would not be entitled to additional payments for a 
subsequent 15-day period of hospitalization due to the same OTI. For 
example, if a member suffers an OTI due to a motorcycle accident, is 
hospitalized for 10 days, and experiences loss of ADL for 30 days, the 
member would be entitled to a TSGLI payment based on loss of ADLs for 
30 days. If the member is subsequently hospitalized for another 
consecutive 15 days, a month later for the same motorcycle accident, 
the member would not be entitled to an additional TSGLI payment for 
hospitalization. These proposed amendments are consistent with 38 
U.S.C. 1980A(a)(2), which states for payment under the schedule ``for 
the single loss providing the highest payment'' if a member suffers 
more than one qualifying loss as a result of traumatic injury from the 
same traumatic event.
    Finally, VA would amend the first note to state that, if a member 
receives a TSGLI payment under new paragraph (c)(20) based upon loss of 
ADLs, the member would be entitled to an additional payment for loss of 
ADLs under new paragraph (c)(20) only if the member reaches a 
subsequent milestone for loss of ADLs in new paragraph (c)(20), i.e., 
60, 90 or 120 consecutive days of ADL loss without a break in the 
consecutive day period where no ADL loss is present. This proposed 
amendment aligns with the design of the TSGLI program, which is to 
provide benefits payments for severe traumatic injuries that require an 
extended period of rehabilitation. 70 FR 75940. Requiring a member to 
reach the next payment milestone without a break between the 
consecutive days ensures that the injury is equivalent in severity to 
other losses under the schedule.
    VA would also amend the second note in new Sec.  9.21(c)(21) to 
explain that the duration of hospitalization includes a period of time 
between admission and discharge during which a member takes a 
therapeutic trip as defined in new Sec.  9.21(a)(11).

III. Petition for Rulemaking

    On March 16, 2015, a petition for rulemaking was submitted to the 
Secretary of Veterans Affairs requesting that VA:
    1. Amend the definition of ``traumatic event'' in current Sec.  
9.20(b)(1) to include ``application of . . . explosive ordnance . . . 
causing damage to a living being.''
    2. Amend the definition of ``traumatic injury'' in current Sec.  
9.20(c)(2)(ii) to include a ``physical illness or disease . . . caused 
by . . . explosive ordnance.''
    3. Amend the list of exclusions in current Sec.  9.20(e)(4)(i) to 
provide that a scheduled loss resulting from a ``physical illness or 
disease caused by explosive ordnance'' will not be excluded from TSGLI 
coverage.
    4. Add the following definition of ``explosive ordnance'' to 
current Sec.  9.20(e)(6): ``all munitions containing explosives, . . . 
includ[ing], but . . . not limited to, improvised explosive devices 
(IEDs).''
    In considering this proposal, VA conducted a review of medical 
literature on the numbers, types, and onset period of illnesses and 
diseases resulting from explosive ordnance exposure. VA also 
interviewed a range of medical experts in the fields of traumatic brain 
injury, concussive force trauma, combat trauma, and retained toxic 
fragment impacts as well as epidemiologists and other medical 
researchers studying the impacts of blast injuries on today's military. 
Based upon this review of the issue, VA denies the petition for 
rulemaking for the following reasons.

A. Definition of ``Traumatic Event''

    Current Sec.  9.20(b) defines a ``traumatic event'' as ``the 
application of external force, violence, chemical, biological, or 
radiological weapons, or accidental ingestion of a contaminated 
substance causing damage to a living being.'' We agree with petitioner 
that IEDs are a unique hazard of military service. Therefore, since the 
start of the TSGLI program on December 1, 2005, explosion of an 
ordnance including an improvised explosive device causing damage to a 
living being has been considered as a traumatic event, i.e., damage 
caused by application of external force due to fragments of debris 
propelled by the explosion or due to a member being thrown to the 
ground or into an object. Gulf War & Health, Volume 7: Long-Term 
Consequences of Traumatic Brain Injury, at 7 (2009). Between December 
22, 2005, and July 31, 2019, the TSGLI program provided more than $357 
million in benefits to 6,207 servicemembers who suffered a traumatic 
injury due to an improvised explosive device, mortar attack, shrapnel, 
or rocket propelled grenade that resulted in a scheduled loss. VA, 
therefore, sees no need to amend Sec.  9.20(b)(1) to include an 
explosive ordnance or to add a definition of improvised explosive 
device to Sec.  9.20(e)(6).

B. Illness or Disease Caused by Explosive Ordnance

    The petition seeks to amend current 38 CFR 9.20(c)(2)(ii) and 
(e)(4)(i) to ensure TSGLI coverage of physical illness or disease 
caused by TBI, which has been called a signature injury of the conflict 
in Iraq. Petition at 12-15. Petitioner contends that the harm caused by 
explosion of an ordnance is ``just like'' application of chemical, 
biological, and radiological weapons and accidental ingestion of a 
contaminated substance because they ``produce immediate bodily harm but 
their biological effects may not immediately manifest'' and ``may have 
a latency of months to years before manifesting.'' Petition at 23. 
Petitioner's request is inconsistent with the nature

[[Page 50983]]

of TSGLI, which is modeled on AD&D insurance, and congressional intent.
    The plain language of 38 U.S.C. 1980A(a)(1) and (2), (b)(1), (c)(1) 
and (2) authorizes TSGLI benefits for a qualifying loss resulting 
directly from a ``traumatic injury.'' The word ``disease'' does not 
appear in the statute. Consistent with the maxim ``expressio unius est 
exclusio alterius,'' Congress knows how to include TSGLI coverage for 
diseases if it so desires, and it did not do so. See Russello v. United 
States, 464 U.S. 16, 23 (1983) (``[W]here Congress includes particular 
language in one section of a statute but omits it in another section of 
the same Act, it is generally presumed that Congress acts intentionally 
and purposely in the disparate inclusion or exclusion.'').
    VA implemented 38 U.S.C. 1980A in 2005 by defining the term 
``traumatic injury'' in current 38 CFR 9.20(c)(1) to mean ``physical 
damage . . . caused by'' the ``application of external force, violence, 
chemical, biological, or radiological weapons, or accidental ingestion 
of a contaminated substance.'' In the 2005 interim final-rule notice, 
VA stated that ``[w]e believe that inherent in the term `traumatic 
injury' is the notion that the injury occurs immediately.'' 70 FR 
75,941; see 10 Couch on Insurance Sec.  139:28, at 139-64 (``accidental 
bodily injury has been defined as a localized abnormal condition of the 
living body directly and contemporaneously caused by accident''). VA 
expressly excluded losses caused by a ``disease'' from TSGLI coverage 
in current 38 CFR 9.20(c)(2)(ii) and (e)(4)(i), which states that 
``traumatic injury'' does not include damage to a living body caused by 
a disease, whether physical or mental in nature. 70 FR 75,941. VA 
stated that the ``term `injury' refers to the result of an external 
trauma rather than a degenerative process, while the ``term `disease' . 
. . refers to some type of internal infection or degenerative 
process.'' Id. (citing VAOPGCPREC 86-90).
    VA's conclusion that TSGLI only extends to traumatic injuries which 
cause immediate harm and require immediate treatment as compared to 
diseases is supported by the legislative history when 38 U.S.C. 1980A 
was enacted in 2005. TSGLI coverage was intended for injuries occurring 
immediately after a traumatic event, e.g., wounds suffered on the 
battlefield, and to provide financial support when the wounded 
servicemembers return home and are undergoing rehabilitation prior to 
medical discharge from service. See 151 Cong. Rec. 7454-55 (2005).
    VA, however, defined ``injury'' to include physical illness or 
disease ``caused by a pyogenic infection, chemical, biological or 
radiological weapons, or accidental ingestion of a contaminated 
substance'' because ``including immediate traumatic harm due to those 
unique hazards of military service is consistent with the purpose of 
TSGLI.'' 70 FR 75,941 (emphasis added); 38 CFR 9.20(c)(2)(ii). VA 
stated that the ``physical damage resulting in a covered loss would 
generally occur immediately and require prompt medical treatment.'' 70 
FR 75,941.
    Scientific reports indicate that the consequences of a TBI may not 
become manifest for a long period of time. For example, the Institute 
of Medicine report, Long-Term Consequences of Traumatic Brain Injury, 
at 7, found a ``weak but significant association between TBI and 
meningioma and of an increase in risk of brain tumors 10 years or more 
after TBI; that suggests a long latent period before clinical 
presentation.'' See also id. at 355. A study showing a link between TBI 
and increased risk of stroke in the first five years after injury found 
that, in the cohort studied, the average time between a patient's use 
of health care services and onset of stroke was 543 days for patients 
with TBI. Yi-Hua Chen, et al., Patients with Traumatic Brain Injury: 
Population-Based Study Suggests Increased Risk of Stroke, 42 Stroke 
2733-39 (2011). Studies of occurrence of Parkinson's disease following 
TBI also show a delayed onset. Lindsay Wilson, et al., Traumatic Brain 
Injury 4: The Chronic and Evolving Neurological Consequences of 
Traumatic Brain Injury, 16 The Lancet 813-825 (2017).
    Because Congress intended to provide TSGLI compensation for 
``injuries'' rather than diseases occurring immediately after a 
traumatic event and that require prompt medical treatment, the 
Secretary denies the petition to provide TSGLI coverage for physical 
illness or disease caused by TBI that ``may not immediately manifest'' 
and ``may have a latency of months to years before manifesting.''
Paperwork Reduction Act
    This proposed rule contains no provisions constituting a collection 
of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).
Executive Orders 12866, 13563, and 13771
    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. 
The Office of Information and Regulatory Affairs has determined that 
this rule is not 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 the 
rulemaking and its impact analysis are available on VA's website at 
http://www.va.gov/orpm by following the link for ``VA Regulations 
Published From FY 2004 Through Fiscal Year to Date.''
    This proposed rule is not expected to be an E.O. 13771 regulatory 
action because this proposed rule is not significant under E.O. 12866.
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. The provisions contained in this proposed rulemaking 
are specifically managed, processed, and conducted within VA and 
through Prudential Insurance Company of America, which is not 
considered to be a small entity. Therefore, pursuant to 5 U.S.C. 
605(b), the initial and final regulatory flexibility analysis 
requirements of 5 U.S.C. 603 and 604 do not apply.
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 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.
Catalog of Federal Domestic Assistance
    The Catalog of Federal Domestic Assistance number and title for the 
program affected by this document is 64.103, Life Insurance for 
Veterans.

[[Page 50984]]

List of Subjects in 38 CFR Part 9

    Life insurance, Servicemembers, Veterans.

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. Brooks D. 
Tucker, Acting Chief of Staff, Department of Veterans Affairs, approved 
this document on July 17, 2020, for publication.

Luvenia Potts,
Regulation Development Coordinator, 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 9 as follows:

PART 9--SERVICEMEMBERS' GROUP LIFE INSURANCE AND VETERANS' GROUP 
LIFE INSURANCE

0
1. The authority citation for Part 9 continues to read as follows:

    Authority: 38 U.S.C. 501, 1965-1980A, unless otherwise noted.

0
2. Amend Sec.  9.20 by:
0
a. Revising paragraph (b)(1);
0
b. Redesignating paragraph (c)(3) as (c)(4) and adding a new paragraph 
(c)(3);
0
c. Revising paragraphs (d)(2) and (4), and (e)(1), (e)(3)(i)(C) and 
(ii), and (e)(6);
0
c. Removing paragraph (f);
0
d. Revising paragraph (g);
0
e. Redesignating paragraph (h) as paragraph (f) and revising newly 
redesignated paragraph (f);
0
f. Redesignating paragraphs (i) through (k) as paragraphs (h) through 
(j) respectively and revising newly redesignated paragraphs (h) through 
(j).
    The revisions read as follows:


Sec.  9.20  Traumatic injury protection.

* * * * *
    (b) * * * (1) A traumatic event is damage to a living being 
occurring on or after October 7, 2001, caused by:
    (i) Application of an external force;
    (ii) Application of violence or chemical, biological, or 
radiological weapons;
    (iii) Accidental ingestion of a contaminated substance;
    (iv) Exposure to low environmental temperatures, excessive heat, or 
documented non-penetrating blast waves; or
    (v) An insect bite or sting or animal bite.
* * * * *
    (c) What is a traumatic injury?
* * * * *
    (3) The term traumatic injury includes anaphylactic shock directly 
caused by an insect bite or sting or animal bite.
* * * * *
    (d) * * *
    (2) You must suffer a scheduled loss that results directly from a 
traumatic injury and from no other cause.
    (i) A scheduled loss does not result directly from a traumatic 
injury and from no other cause if a pre-existing illness, condition, or 
disease or a post-service injury substantially contributed to the loss.
    (ii) A scheduled loss results directly from a traumatic injury and 
no other cause if the loss is caused by a medical or surgical procedure 
used to treat the traumatic injury.
* * * * *
    (4) You must suffer a scheduled loss under Sec.  9.21(c) within two 
years of the traumatic injury.
    (i) If a loss with a required time period milestone begins but is 
not completed within two years of the traumatic injury, the loss would 
nonetheless qualify for TSGLI if the requisite time period of loss 
continues uninterrupted and concludes after the end of the two-year 
period.
    (ii) If a required time period for a loss is satisfied before the 
end of the two-year period and a member suffers another period of loss 
after expiration of the two-year time limit, the member is not entitled 
to TSGLI for this time period of loss.
* * * * *
    (e) * * * (1) The term ``scheduled loss'' means a condition listed 
in the schedule in Sec.  9.21(c) if directly caused by a traumatic 
injury and from no other cause. A scheduled loss is payable at the 
amount specified in the schedule.
* * * * *
    (3) * * *
    (i) * * *
    (C) Diagnostic procedures, preventive medical procedures such as 
inoculations, medical or surgical treatment for an illness or disease, 
or any complications arising from such procedures or treatment, unless 
the diagnostic procedure or medical or surgical treatment is necessary 
to treat a traumatic injury;
* * * * *
    (ii) Sustained while a member was committing an act that clearly 
violated a penal law classifying such an act as a felony.
* * * * *
    (6) Definitions. For purposes of this section and Sec.  9.21--
    (i) The term biological weapon means biological agents or 
microorganisms intended to kill, seriously injure, or incapacitate 
humans through their physiological effects.
    (ii) The term chemical weapon means chemical substances intended to 
kill, seriously injure, or incapacitate humans through their 
physiological effects.
    (iii) The term contaminated substance means food or water made 
unfit for consumption by humans because of the presence of chemicals, 
radioactive elements, bacteria, or organisms.
    (iv) The term external force means a sudden or violent impact from 
a source outside of the body that causes an unexpected impact and is 
independent of routine body motions such as twisting, lifting, bending, 
pushing, or pulling.
    (v) The term ingestion means to take into the gastrointestinal 
tract by means of the mouth.
    (vi) The term medical professional means a licensed practitioner of 
the healing arts acting within the scope of his or her practice, 
including, e.g., a licensed physician, optometrist, nurse practitioner, 
registered nurse, physician assistant, or audiologist.
    (vii) The term medically incapacitated means an individual who has 
been determined by a medical professional to be physically or mentally 
impaired by physical disability, mental illness, mental deficiency, 
advanced age, chronic use of drugs or alcohol, or other causes that 
prevent sufficient understanding or capacity to manage his or her own 
affairs competently.
    (viii) The term pyogenic infection means a pus-producing infection.
    (ix) The term radiological weapon means radioactive materials or 
radiation-producing devices intended to kill, seriously injure, or 
incapacitate humans through their physiological effects.
    (f) How does a member make a claim for traumatic injury protection 
benefits? (1)(i) A member who believes he or she qualifies for 
traumatic injury protection benefits must complete and sign Part A of 
the TSGLI Benefits Form and submit evidence substantiating the member's 
traumatic injury and resulting loss. A medical professional must 
complete and sign Part B of the Application for TSGLI Benefits Form.
    (ii) If a medical professional certifies in Part B of the 
Application for TGSLI Benefits Form that a member is unable to sign 
Part A of the Form because the member is medically incapacitated, the 
Form must be signed by one of the following: The member's guardian; if 
none, the member's agent or attorney

[[Page 50985]]

acting under a valid Power of Attorney; if none, the member's military 
trustee.
    (iii) If a member suffered a scheduled loss as a direct result of 
the traumatic injury, survived seven full days from the date of the 
traumatic event, and then died before the maximum benefit for which the 
service member qualifies is paid, the beneficiary or beneficiaries of 
the member's Servicemembers' Group Life Insurance policy should 
complete an Application for TSGLI Benefits Form.
    (2) If a member seeks traumatic injury protection benefits for a 
scheduled loss occurring after submission of a completed Application 
for TSGLI Benefits Form for a different scheduled loss, the member must 
submit a completed Application for TSGLI Benefits Form for the new 
scheduled loss and for each scheduled loss that occurs thereafter and 
for each increment of a scheduled loss that occurs thereafter. For 
example, if a member seeks traumatic injury protection benefits for a 
scheduled loss due to coma from traumatic injury and/or the inability 
to carry out activities of daily living due to traumatic brain injury 
(Sec.  9.21(c)(17)), or the inability to carry out activities of daily 
living due to loss directly resulting from a traumatic injury other 
than an injury to the brain (Sec.  9.21(c)(20)), a completed 
Application for TSGLI Benefits Form must be submitted for each 
increment of time for which TSGLI is payable. Also, for example, if a 
member suffers a scheduled loss due to a coma, a completed Application 
for TSGLI Benefits Form should be filed after the 15th consecutive day 
that the member is in the coma, for which $25,000 is payable. If the 
member remains in a coma for another 15 days, another completed 
Application for TSGLI Benefits Form should be submitted and another 
$25,000 will be paid.
    (g) How will the uniformed service decide a TSGLI claim?
    (1) Each uniformed service will certify its own members for 
traumatic injury protection benefits based upon section 1032 of Public 
Law 109-13, section 501 of Public Law 109-233, and this section. The 
uniformed service will certify whether a member was insured under 
Servicemembers' Group Life Insurance at the time of the traumatic 
injury and whether the member sustained a qualifying traumatic injury 
and qualifying loss.
    (2) The uniformed service office may request additional evidence 
from the member if the record does not contain sufficient evidence to 
decide the member's claim.
    (3) The uniformed service office shall consider all medical and lay 
evidence of record, including all evidence provided by the member, and 
determine its probative value. When there is an approximate balance of 
positive and negative evidence regarding any issue material to the 
determination of TSGLI benefits, the uniformed service shall give the 
benefit of the doubt to the member.
    (4) Notice of a decision regarding a member's eligibility for 
traumatic injury protection benefits will include an explanation of the 
procedure for obtaining review of the decision, and all negative 
decisions shall include a statement of the basis for the decision and a 
summary of the evidence considered.
    (h) How does a member or beneficiary appeal an adverse eligibility 
determination? (1) Each uniformed service has a three-tiered appeal 
process. The first tier of appeal is called a reconsideration, followed 
by a second-level appeal and then a third-level appeal. A member, 
beneficiary, or other person eligible to submit a claim under paragraph 
(f)(1)(ii) or (iii) may submit an appeal using the appeal process of 
the uniformed service that issued the original decision.
    (i) Reconsideration. (A) Reconsideration of an eligibility 
determination, such as whether the loss occurred within 730 days of the 
traumatic injury, whether the member was insured under Servicemembers' 
Group Life Insurance when the traumatic injury was sustained, or 
whether the injury was self-inflicted or whether a loss of hearing was 
total and permanent, is initiated by filing, with the office of the 
uniformed service identified in the eligibility decision within one 
year of the date of a denial of eligibility, a written notice of appeal 
that identifies the issues for which reconsideration is sought.
    (B) The uniformed service TSGLI office will review the claim, 
including evidence submitted with the notice of appeal by or on behalf 
of the member that was not previously part of the record before the 
uniformed service, and issue a decision on the claim.
    (ii) Second-level appeal. (A) A second-level appeal of the 
reconsideration decision is initiated by filing, with the second-level 
appeal office of the uniformed service within one year of the date of 
the reconsideration decision, a written notice of appeal that 
identifies the issues being appealed.
    (B) The uniformed service second-level appeal office will review 
the claim, including evidence submitted with the notice of appeal by or 
on behalf of the member that was not previously part of the record 
before the uniformed service, and issue a decision on the claim.
    (iii) Third-level appeal. (A) A third-level review of the second-
level uniformed service appeal office is initiated by filing, with the 
third-level appeal office of the uniformed service within one year of 
the date of the decision by the second-level appeal office of the 
uniformed service, a written notice of appeal that identifies the 
issues being appealed.
    (B) The uniformed service third-level appeal office will review the 
claim, including evidence submitted with the notice of appeal by or on 
behalf of the member that was not previously part of the record before 
the uniformed service, and issue a decision on the claim.
    (2) If a timely notice of appeal seeking reconsideration of the 
initial decision by the uniformed service or seeking review of the 
decision by the second-level uniformed service appeal office is not 
filed, the initial decision by the uniformed service or the decision by 
the second-level uniformed service appeal office, respectively, shall 
become final, and the claim will not thereafter be readjudicated or 
allowed except as provided in paragraph (h)(3).
    (3) New and material evidence. (i) If a member, beneficiary, or 
other person eligible to submit a claim under paragraph (f)(1)(ii) or 
(iii) submits new and material evidence with respect to a claim that 
has been finally disallowed as provided in paragraph (h)(2), the 
uniformed service office will consider the evidence, determine its 
probative value, and readjudicate the claim. New and material evidence 
is evidence that was not previously part of the record before the 
uniformed service, is not cumulative or redundant of evidence of record 
at the time of the prior decision and is likely to have a substantial 
effect on the outcome.
    (ii) A decision finding that new and material evidence was not 
submitted may be appealed in accordance with paragraph (h)(1).
    (4) Nothing in this section precludes a member from pursuing legal 
remedies under 38 U.S.C. 1975 and 38 CFR 9.13. However, if a member 
files suit in U.S. district court after an adverse initial decision on 
a TSGLI claim by a uniformed service, the member may not file an appeal 
pursuant to paragraph (h)(1) if the lawsuit is pending before a U.S. 
district court, U.S. court of appeals, or U.S. Supreme Court or the 
time for appeal or filing a petition for a writ of certiorari has not 
expired. If a member files suit in U.S. district court after filing an 
appeal pursuant to paragraph (h)(1), the appeal will be stayed if the 
lawsuit

[[Page 50986]]

is pending before a U.S. district court, U.S. court of appeals, or U.S. 
Supreme Court or the time for appeal or filing a petition for a writ of 
certiorari has not expired.
    (i) Who will be paid the traumatic injury protection benefit? The 
injured member who suffered a scheduled loss will be paid the traumatic 
injury protection benefit in accordance with 38 U.S.C. 1980A except 
under the following circumstances:
    (A) If a member has been determined by a medical professional, in 
Part B of the Application for TSGLI Benefits Form, to be medically 
incapacitated, the member's guardian or, or if there is no guardian, 
the member's agent or attorney acting under a valid Power of Attorney 
will be paid the benefit on behalf of the member.
    (B) If no guardian, agent, or attorney is authorized to act as the 
member's legal representative, a military trustee who has been 
appointed under the authority of 37 U.S.C. 602 will be paid the benefit 
on behalf of the member. The military trustee will report the receipt 
of the traumatic injury benefit payment and any disbursements from that 
payment to the Department of Defense.
    (C) If a member dies before payment is made, the beneficiary or 
beneficiaries who will be paid the benefit will be determined in 
accordance with 38 U.S.C. 1970(a).
    (j) The Traumatic Servicemembers' Group Life Insurance program will 
be administered in accordance with this rule, except to the extent that 
any regulatory provision is inconsistent with subsequently enacted 
applicable law.
0
3. Redesignate Sec. Sec.  9.21 and 9.22 as Sec. Sec.  9.22 and 9.23 and 
add a new Sec.  9.21 to read as follows:


Sec.  9.21  Schedule of Losses.

    (a) Definitions. For purposes of the Schedule of Losses in 
paragraph (c)--
    (1) The term accommodating equipment means tools or supplies that 
enable a member to perform an activity of daily living without the 
assistance of another person, including, but not limited to, a 
wheelchair; walker or cane; reminder applications; Velcro clothing or 
slip-on shoes; grabber or reach extender; raised toilet seat; wash 
basin; shower chair; or shower or tub modifications such as wheelchair 
access or no-step access, grab-bar or handle.
    (2) The term adaptive behavior means compensating skills that allow 
a member to perform an activity of daily living without the assistance 
of another person.
    (3) The term amputation means the severance or removal of a limb or 
genital organ or part of a limb or genital organ resulting from trauma 
or surgery. With regard to limbs, an amputation above a joint means a 
severance or removal that is closer to the body than the specified 
joint is.
    (4) The term assistance from another person means that a member, 
even while using accommodating equipment or adaptive behavior, is 
nonetheless unable to perform an activity of daily living unless 
another person physically supports the member, is needed to be within 
arm's reach of the member to provide assistance because the member's 
ability fluctuates, or provides oral instructions to the member while 
the member attempts to perform the activity of daily living.
    (5) The term avulsion means a forcible detachment or tearing of 
bone and/or tissue due to a penetrating or crush injury.
    (6) The term consecutive means to follow in uninterrupted 
succession.
    (7) The term discontinuity defect means the absence of bone and/or 
tissue from its normal bodily location, which interrupts the physical 
consistency of the face and impacts at least one of the following 
functions: Mastication, swallowing, vision, speech, smell, or taste.
    (8) The term hospitalization means admission to a ``hospital'' as 
defined in 42 U.S.C. 1395x(e) or ``skilled nursing facility'' as 
defined in 42 U.S.C. 1395i-3(a).
    (9) The term inability to carry out activities of daily living 
means the inability to perform at least two of the six following 
functions without assistance from another person, even while using 
accommodating equipment or adaptive behavior, as documented by a 
medical professional.
    (i) Bathing means washing, while in a bathtub or shower or using a 
sponge bath, at least three of the six following regions of the body in 
its entirety: Head and neck, back, front torso, pelvis (including the 
buttocks), arms, or legs.
    (ii) Continence means complete control of bowel and bladder 
functions or management of a catheter or colostomy bag, if present.
    (iii) Dressing means obtaining clothes and shoes from a closet or 
drawers and putting on the clothing and shoes, excluding tying 
shoelaces or use of belts, buttons, or zippers.
    (iv) Eating means moving food from a plate to the mouth or 
receiving nutrition via a feeding tube or intravenously but does not 
mean preparing or cutting food or obtaining liquid nourishment through 
a straw or cup.
    (v) Toileting means getting on and off the toilet; taking clothes 
off before toileting or putting clothes on after toileting; cleaning 
organs of excretion after toileting; or using a bedpan or urinal.
    (vi) Transferring means moving in and out of a bed or chair.
    (10) The term permanent means clinically stable and reasonably 
certain to continue throughout the lifetime of the member.
    (11) The term therapeutic trip means an approved pass by the 
member's attending physician to leave a hospital as defined in 42 
U.S.C. 1395x(e) or ``skilled nursing facility'' as defined in 42 U.S.C. 
1395i-3(a), accompanied or unaccompanied by hospital or facility staff, 
as part of a member's treatment plan and with which the member is able 
to return without having to be readmitted to the hospital or facility.
    (b)(1) For losses listed in paragraphs (c)(1) through (19) of this 
section--
    (i) Except where noted otherwise, multiple losses resulting from a 
single traumatic event may be combined for purposes of a single 
payment.
    (ii) The total payment amount may not exceed $100,000 for losses 
resulting from a single traumatic event.
    (2) For losses listed in paragraphs (c)(20) and (21) of this 
section--
    (i) Payments may not be made in addition to payments for losses 
under paragraphs (c)(1) through (19); instead, the higher amount will 
be paid.
    (ii) The total payment amount may not exceed $100,000 for losses 
resulting from a single traumatic event.
    (3) Required period of consecutive days of loss. For losses in 
paragraphs (c)(17) through (18) and (20) through (21)--
    (i) A period of consecutive days of loss that is interrupted by a 
day or more during which the criteria for the scheduled loss are not 
satisfied will not be added together with a subsequent period of 
consecutive days of loss. The counting of consecutive days starts over 
at the end of any period in which the criteria for a loss are not 
satisfied.
    (ii) A required period of consecutive days will be satisfied if a 
loss begins within two years of a traumatic injury and continues 
without interruption after the end of the two-year period. A subsequent 
period of consecutive days of a scheduled loss will be satisfied if it 
follows uninterrupted immediately after an initial period of 
consecutive days of loss that ended after expiration of the two-year 
period.
    (c) Schedule of Losses. (1) Total and permanent loss of sight is:
    (i) Visual acuity in the eye of 20/200 or less/worse with 
corrective lenses lasting at least 120 days;
    (ii) Visual acuity in the eye of greater/better than 20/200 with 
corrective

[[Page 50987]]

lenses and a visual field of 20 degrees of less lasting at least 120 
days; or
    (iii) Anatomical loss of the eye.
    (iv) The amount payable for the loss of each eye is $50,000.
    (2) Total and permanent loss of hearing is:
    (i) Average hearing threshold sensitivity for air conduction of at 
least 80 decibels, based on hearing acuity measured at 500, 1,000, and 
2,000 Hertz via pure tone audiometry by air conduction, without 
amplification device
    (ii) The amount payable for loss of one ear is $25,000. The amount 
payable for the loss of both ears is $100,000.
    (3) Total and permanent loss of speech is:
    (i) Organic loss of speech or the ability to express oneself, both 
by voice and whisper, through normal organs for speech, notwithstanding 
the use of an artificial appliance to simulate speech.
    (ii) The amount payable for the loss of speech is $50,000.
    (4) Quadriplegia is:
    (i) Total and permanent loss of voluntary movement of all four 
limbs resulting from damage to the spinal cord, associated nerves, or 
brain.
    (ii) The amount payable for quadriplegia is $100,000.
    (5) Hemiplegia is:
    (i) Total and permanent loss of voluntary movement of the upper and 
lower limbs on one side of the body from damage to the spinal cord, 
associated nerves, or brain.
    (ii) The amount payable for hemiplegia is $100,000.
    (6) Paraplegia is:
    (i) Total and permanent loss of voluntary movement of both lower 
limbs resulting from damage to the spinal cord, associated nerves, or 
brain.
    (ii) The amount payable for paraplegia is $100,000.
    (7) Uniplegia is:
    (i) Total and permanent loss of voluntary movement of one limb 
resulting from damage to the spinal cord, associated nerves, or brain.
    (ii) The amount payable for the loss of each limb is $50,000.
    (iii) Payment for uniplegia of arm cannot be combined with loss 9 
or 10 for the same arm. The higher payment for uniplegia or loss 14 
will be made for the same arm. Payment for uniplegia of leg cannot be 
combined with loss 11 or 12 for the same leg. The higher payment for 
uniplegia or loss 13 will be made for the same leg. The higher payment 
for uniplegia or loss 15 will be made for the same leg.
    (8) Burns: (i) The percentage of the body burned may be measured 
using the Rule of Nines or any means of measurement generally accepted 
within the medical profession.
    (ii) The amount payable for partial thickness burns covering 20% of 
face or body that do not require skin grafting is $50,000.
    (iii) The amount payable for partial thickness burns or worse 
located on the face, hands, feet, genitalia, perineum, ankles, knees, 
hips, wrists, elbows, or shoulders that require grafting is $100,000.
    (iv) The amount payable for full thickness burns covering 20% of 
the face or body is $100,000.
    (v) Road rash, which is a skin abrasion caused by sliding on a hard 
or rough surface, will be evaluated under paragraphs (c)(20) and (21).
    (9) Amputation of a hand at or above the wrist: (i) The amount 
payable for the loss of each hand is $50,000.
    (ii) Payment for amputation of hand cannot be combined with payment 
for loss 7 or 10 for the same hand. The higher payment for amputation 
of hand or loss 14 will be made for the same hand.
    (10) Amputation at or above the metacarpophalangeal joint(s) of 
either the thumb or the other 4 fingers on 1 hand: (i) The amount 
payable for the loss of each hand is $50,000.
    (ii) Payment for amputation of 4 fingers on 1 hand or thumb alone 
cannot be combined with payment for loss 7 or 9 for the same hand. The 
higher payment for amputation of 4 fingers on 1 hand or thumb alone or 
loss 14 will be made for the same hand. Payment for loss of the thumb 
cannot be made in addition to payment for loss of the other 4 fingers 
for the same hand.
    (11) Amputation of a foot at or above the ankle: (i) The amount 
payable for the loss of each foot is $50,000.
    (ii) Payment for amputation of foot cannot be combined with loss 7 
or 12 for the same foot. The higher payment for amputation of foot or 
Loss 13 will be made for the same foot. The higher payment for 
amputation of foot or Loss 15 will be made for the same foot.
    (12) Amputation at or above the metatarsophalangeal joints of all 
toes on 1 foot: (i) The amount payable for the loss of each foot is 
$50,000.
    (ii) Payment for amputation of all toes including the big toe on 1 
foot cannot be combined with loss 7 or 11 for the same foot. The higher 
payment for amputation of all toes including the big toe on 1 foot or 
loss 13 will be made for the same foot. The higher payment for 
amputation of all toes including the big toe on 1 foot or loss 15 will 
be made for the same foot.
    (13) Amputation at or above the metatarsophalangeal joint(s) of 
either the big toe or the other 4 toes on 1 foot: (i) The amount 
payable for the loss of each foot is $25,000.
    (ii) The higher payment for amputation of big toe only, or other 4 
toes on 1 foot, or loss 7 will be made for the same foot. The higher 
payment for amputation of big toe only, or other 4 toes on 1 foot, or 
loss 11 will be made for the same foot. The higher payment for 
amputation of big toe only, or other 4 toes on 1 foot, or loss 12 will 
be made for the same foot. The higher payment for amputation of big toe 
only, or other 4 toes on 1 foot, or loss 15 will be made for the same 
foot.
    (14) Limb reconstruction of arm (for each arm): (i) A surgeon must 
certify that a member had surgery to treat at least one of the 
following injuries to a limb:
    (A) Bony injury requiring bone grafting to re-establish stability 
and enable mobility of the limb;
    (B) Soft tissue defect requiring grafting/flap reconstruction to 
reestablish stability;
    (C) Vascular injury requiring vascular reconstruction to restore 
blood flow and support bone and soft tissue regeneration; or
    (D) Nerve injury requiring nerve reconstruction to allow for motor 
and sensory restoration and muscle re-enervation.
    (ii) The amount payable for losses involving 1 of the 4 listed 
surgeries is $25,000. The amount payable for losses involving 2 or more 
of the 4 listed surgeries is $50,000.
    (iii) The higher payment for limb reconstruction of arm or loss 7 
will be made for the same arm. The higher payment for limb 
reconstruction of arm or loss 9 will be made for the same arm. The 
higher payment for limb reconstruction of arm or loss 10 will be made 
for the same arm.
    (15) Limb reconstruction of leg (for each leg): (i) A surgeon must 
certify that a member had at least one of the following injuries to a 
limb requiring the identified surgery for the same limb:
    (A) Bony injury requiring bone grafting to re-establish stability 
and enable mobility of the limb;
    (B) Soft tissue defect requiring grafting/flap reconstruction to 
reestablish stability;
    (C) Vascular injury requiring vascular reconstruction to restore 
blood flow and support bone and soft tissue regeneration; or
    (D) Nerve injury requiring nerve reconstruction to allow for motor 
and sensory restoration and muscle re-enervation.
    (ii) The amount payable for losses involving 1 of the 4 listed 
surgeries is

[[Page 50988]]

$25,000. The amount payable for losses involving 2 or more of the 4 
listed surgeries is $50,000.
    (iii) The higher payment for limb reconstruction of leg or loss 7 
will be made for the same leg. The higher payment for limb 
reconstruction of leg or loss 11 will be made for the same leg. The 
higher payment for limb reconstruction of leg or loss 12 will be made 
for the same leg. The higher payment for limb reconstruction of leg or 
loss 13 will be made for the same leg.
    (16) Facial reconstruction: (i) A surgeon must certify that a 
member had surgery to correct a traumatic avulsion of the face or jaw 
that caused a discontinuity defect to one or more of the following 
facial areas:
    (A) Surgery to correct discontinuity loss involving bone loss of 
the upper or lower jaw-the amount payable for this loss is $75,000;
    (B) Surgery to correct discontinuity loss involving cartilage or 
tissue loss of 50% or more of the cartilaginous nose-the amount payable 
for this loss is $50,000;
    (C) Surgery to correct discontinuity loss involving tissue loss of 
50% or more of the upper or lower lip-the amount payable for loss of 
one lip is $50,000, and the amount payable for loss of both lips is 
$75,000;
    (D) Surgery to correct discontinuity loss involving bone loss of 
30% or more of the periorbita-the amount payable for loss of each eye 
is $25,000;
    (E) Surgery to correct discontinuity loss involving loss of bone or 
tissue of 50% or more of any of the following facial subunits: 
Forehead, temple, zygomatic, mandibular, infraorbital, or chin-the 
amount payable for each facial subunit is $25,000.
    (ii) Losses due to facial reconstruction may be combined with each 
other, but the maximum benefit for facial reconstruction may not exceed 
$75,000.
    (iii) Any injury or combination of losses under facial 
reconstruction may be combined with other losses in Sec.  9.21(c)(1)-
(19) and treated as one loss, provided that all losses are the result 
of a single traumatic event. However, the total payment amount may not 
exceed $100,000.
    (iv) Bone grafts for teeth implants alone do not meet the loss 
standard for facial reconstruction from jaw surgery.
    (17) Coma (8 or less on Glasgow Coma Scale) AND/OR Traumatic Brain 
Injury resulting in inability to perform at least 2 activities of daily 
living (ADL): (i) The amount payable at the 15th consecutive day of ADL 
loss is $25,000.
    (ii) The amount payable at the 30th consecutive day of ADL loss is 
an additional $25,000.
    (iii) The amount payable at the 60th consecutive day of ADL loss is 
an additional $25,000.
    (iv) The amount payable at the 90th consecutive day of ADL loss is 
an additional $25,000.
    (v) Duration of coma and inability to perform ADLs include date of 
onset of coma or inability to perform ADLs and the first date on which 
member is no longer in a coma or is able to perform ADLs.
    (18) Hospitalization due to traumatic brain injury: (i) The amount 
payable at the 15th consecutive day of hospitalization is $25,000.
    (ii) Payment for hospitalization may only replace the first ADL 
milestone in loss 17. Payment will be made for 15-day hospitalization, 
coma, or the first ADL milestone, whichever occurs earlier. Once 
payment has been made for the first payment milestone in loss 17 for 
coma or ADL, there are no additional payments for subsequent 15-day 
hospitalization due to the same traumatic injury. To receive an 
additional ADL payment amount under loss 17 after payment for 
hospitalization in the first payment milestone, the member must reach 
the next payment milestones of 30, 60, or 90 consecutive days.
    (iii) Duration of hospitalization includes the dates on which 
member is transported from the injury site to a hospital as defined in 
42 U.S.C. 1395x(e) or skilled nursing facility as defined in 42 U.S.C. 
1395i-3(a), admitted to the hospital or facility, transferred between a 
hospital or facility, leaves the hospital or facility for a therapeutic 
trip, and discharged from the hospital or facility.
    (iv) In cases where a member is hospitalized for 15 consecutive 
days for a diagnostic assessment for a mental illness and/or brain or 
neurologic disorder, and the assessment determines the member has a 
mental illness or brain or neurologic disorder, and not TBI, this loss 
is not payable because the loss was due to illness or disease and is 
excluded from payment. If a member is hospitalized for 15 consecutive 
days for a diagnostic assessment to determine whether the member has 
TBI and is diagnosed with TBI, TBI and PTSD, or PTSD and not TBI, the 
loss is payable for $25,000. If a member is hospitalized for 15 
consecutive days for a diagnostic assessment to determine whether the 
member has PTSD and is diagnosed with TBI or TBI and PTSD, the loss is 
payable for $25,000.
    (19) Genitourinary losses: (i) Amputation of the glans penis or any 
portion of the shaft of the penis above glans penis (i.e. closer to the 
body) or damage to the glans penis or shaft of the penis that requires 
reconstructive surgery-the amount payable for this loss is $50,000.
    (ii) Permanent damage to the glans penis or shaft of the penis that 
results in complete loss of the ability to perform sexual intercourse-
the amount payable for this loss is $50,000.
    (iii) Amputation of or damage to a testicle that requires 
testicular salvage, reconstructive surgery, or both-the amount payable 
for this loss is $25,000.
    (iv) Amputation of or damage to both testicles that requires 
testicular salvage, reconstructive surgery, or both-the amount payable 
for this loss is $50,000.
    (v) Permanent damage to both testicles requiring hormonal 
replacement therapy-the amount payable for this loss is $50,000.
    (vi) Complete or partial amputation of the vulva, uterus, or 
vaginal canal or damage to the vulva, uterus, or vaginal canal that 
requires reconstructive surgery-the amount payable for this loss is 
$50,000.
    (vii) Permanent damage to the vulva or vaginal canal that results 
in complete loss of the ability to perform sexual intercourse-the 
amount payable for this loss is $50,000.
    (viii) Amputation of an ovary or damage to an ovary that requires 
ovarian salvage, reconstructive surgery, or both-the amount payable for 
this loss is $25,000.
    (ix) Amputation of both ovaries or damage to both ovaries that 
requires ovarian salvage, reconstructive surgery, or both-the amount 
payable for this loss is $50,000.
    (x) Permanent damage to both ovaries requiring hormonal replacement 
therapy-the amount payable for this loss is $50,000.
    (xi) Permanent damage to the urethra, ureter(s), both kidneys, 
bladder, or urethral sphincter muscle(s) that requires urinary 
diversion and/or hemodialysis-the amount payable for this loss is 
$50,000.
    (xii) Losses due to genitourinary injuries may be combined with 
each other, but the maximum benefit for genitourinary losses may not 
exceed $50,000.
    (xiii) Any genitourinary loss may be combined with other injuries 
listed in Sec.  9.21(b)(1)-(18) and treated as one loss, provided that 
at all losses are the result of a single traumatic event. However, the 
total payment may not exceed $100,000.
    (20) Traumatic injury, other than traumatic brain injury, resulting 
in inability to perform at least 2 activities of daily living (ADL): 
(i) The amount

[[Page 50989]]

payable at the 15th consecutive day of ADL loss is $25,000.
    (ii) The amount payable at the 30th consecutive day of ADL loss is 
an additional $25,000.
    (iii) The amount payable at the 60th consecutive day of ADL loss is 
an additional $25,000.
    (iv) The amount payable at the 90th consecutive day of ADL loss is 
an additional $25,000.
    (v) Duration of inability to perform ADL includes the date of the 
onset of inability to perform ADL and the first date on which member is 
able to perform ADL.
    (21) Hospitalization due to traumatic injury other than traumatic 
brain injury: (i) The amount payable at 15th consecutive day of ADL 
loss is $25,000.
    (ii) Payment for hospitalization may only replace the first ADL 
milestone in loss 20. Payment will be made for 15-day hospitalization 
or the first ADL milestone, whichever occurs earlier. Once payment has 
been made for the first payment milestone in loss 20, there are no 
additional payments for subsequent 15-day hospitalization due to the 
same traumatic injury. To receive an additional ADL payment amount 
under loss 20 after payment for hospitalization in the first payment 
milestone, the member must reach the next payment milestones of 60, 90, 
or 120 consecutive days.
    (iii) Duration of hospitalization includes the dates on which 
member is transported from the injury site to a hospital as defined in 
42 U.S.C. 1395x(e) or skilled nursing facility as defined in 42 U.S.C. 
1395i-3(a), admitted to the hospital or facility, transferred between a 
hospital or facility, leaves the hospital or facility for a therapeutic 
trip, and discharged from the hospital or facility.

(Authority: 38 U.S.C. 501(a), 1980A)

[FR Doc. 2020-15981 Filed 8-18-20; 8:45 am]
BILLING CODE 8320-01-P