Exceptions to Applying the Bilateral Factor in VA Disability Calculations, 22914-22917 [2023-07426]

Download as PDF 22914 Federal Register / Vol. 88, No. 72 / Friday, April 14, 2023 / Rules and Regulations The Coast Guard received no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator. Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we want to assist small entities in understanding this rule. If the rule affects your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency’s responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1– 888–REG–FAIR (1–888–734–3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. ddrumheller on DSK120RN23PROD with RULES1 C. Collection of Information This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520). D. Federalism and Indian Tribal Governments A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132. Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination VerDate Sep<11>2014 16:10 Apr 13, 2023 Jkt 259001 with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. E. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. F. Environment We have analyzed this rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321–4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves establishing a safety zone around an offshore deepwater facility. Normally such actions are categorically excluded from further review under paragraph 34(g) of Figure 2–1 of Commandant Instruction M16475.lD. A preliminary environmental analysis checklist and Categorical Exclusion Determination, prepared and signed before October 31, 2022, are available in the docket where indicated under ADDRESSES. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 147 as follows: PART 147—SAFETY ZONES 1. The authority citation for part 147 continues to read as follows: ■ Authority: 14 U.S.C. 554; 43 U.S.C. 1333; 33 CFR 1.05–1; Department of Homeland Security Delegation No. 0170.1. ■ 2. Add § 147.871 to read as follows: § 147.871 Safety Zone, Constitution Spar, Outer Continental Shelf Facility, Green Canyon 680, Gulf of Mexico (a) Description. The Constitution Spar is in the deepwater area of the Gulf of Mexico at Green Canyon Block 680. The facility is located at 27°17′31.92″ N, 90°58′4.8″ W, (NAD 83) and the area within 500 meters (1640.4 feet) from each point on the facility structure’s outer edge is a safety zone. (b) Regulation. No vessel may enter or remain in the safety zone described in paragraph (a) of this section except for the following: (1) An attending vessel, as defined in 147.20 (2) A vessel under 100 feet in length overall not engaged in towing; or (3) A vessel authorized by the Commander, Eighth Coast Guard District or a designated representative. (c) Requests for Permission. Persons or vessels requiring authorization to enter the safety zone described in paragraph (a) of this section must request permission from the Commander, Eighth Coast Guard District or a designated representative. If permission is granted, all persons and vessels shall comply with the instructions of the Commander or designated representative. Dated: April 4, 2023. Richard Timme, RADM, U.S. Coast Guard, Commander, Coast Guard District Eight. [FR Doc. 2023–07853 Filed 4–13–23; 8:45 am] BILLING CODE 9110–04–P G. Protest Activities The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels. DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 4 RIN 2900–AR51 Exceptions to Applying the Bilateral Factor in VA Disability Calculations Department of Veterans Affairs. Interim final rule. AGENCY: List of Subjects in 33 CFR Part 147 ACTION: Continental shelf, Marine safety, Navigation (water). SUMMARY: PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 The Department of Veterans Affairs (VA) is issuing this interim final E:\FR\FM\14APR1.SGM 14APR1 Federal Register / Vol. 88, No. 72 / Friday, April 14, 2023 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES1 rule to amend the regulation governing the bilateral factor for diseases and injuries of both arms, both legs, or paired skeletal muscles. More specifically, this interim final rule will allow VA adjudicators to exclude certain disabilities that would be calculated using the bilateral factor to determine the combined evaluation if, by their exclusion, a higher combined evaluation can be achieved. DATES: Effective date: This interim final rule is effective April 16, 2023. Comment date: Comments must be received on or before June 13, 2023. ADDRESSES: Comments must be submitted through www.regulations.gov. Except as provided below, comments received before the close of the comment period will be available at www.regulations.gov for public viewing, inspection, or copying, including any personally identifiable or confidential business information that is included in a comment. We post the comments received before the close of the comment period on the following website as soon as possible after they have been received: https:// www.regulations.gov. VA will not post on Regulations.gov public comments that make threats to individuals or institutions or suggest that the commenter will take actions to harm the individual. VA encourages individuals not to submit duplicative comments. We will post acceptable comments from multiple unique commenters even if the content is identical or nearly identical to other comments. Any public comment received after the comment period’s closing date is considered late and will not be considered in the final rulemaking. FOR FURTHER INFORMATION CONTACT: Olumayowa Famakinwa, Chief, VA Schedule for Rating Disabilities (VASRD) Implementation Staff (218B), Compensation Service (21C), Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202) 461–9700. (This is not a toll-free telephone number.) SUPPLEMENTARY INFORMATION: I. The Need for Updating Bilateral Factor Policy VA conducted claims data analysis and determined that, in very limited circumstances, an unintended negative impact can result based on VA’s ‘‘bilateral factor’’ calculation, which is applied when disabilities involving paired extremities are service connected. Specifically, adding an extremity to a veteran’s total combined (100 percent) evaluation in some cases VerDate Sep<11>2014 16:10 Apr 13, 2023 Jkt 259001 can result in a less favorable 90 percent evaluation. To remedy this unintended negative impact, VA is amending its regulation regarding the bilateral factor to ensure affected veterans receive the appropriate level of compensation that their disabilities warrant. A. How Combined Evaluations Are Calculated By statute, VA assigns a combined evaluation for all service-connected disabilities using a schedule of 10 grades—10 percent, 20 percent, 30 percent, 40 percent, 50 percent, 60 percent, 70 percent, 80 percent, 90 percent and 100 percent (sometimes referred to as ‘‘total’’). See 38 U.S.C. 1155. This combined evaluation serves as the basis for a veteran’s monthly compensation. Id. Instructions for combining evaluations for multiple service-connected disabilities are found in 38 CFR 4.25. Specifically, § 4.25 states that combinations must be done by order of severity (larger numbers first, smaller numbers last) and that, for example, ‘‘a person having a 60 percent disability is considered 40 percent efficient. Proceeding from this 40 percent efficiency, the effect of a further 30 percent disability is to leave only 70 percent of the efficiency remaining after consideration of the first disability, or 28 percent efficiency altogether. The individual is thus 72 percent disabled[.]’’ Paragraph (a) of 38 CFR 4.25 further states that ‘‘[t]his combined value will then be converted to the nearest number divisible by 10, and combined values ending in 5 will be adjusted upward.’’ Therefore, the individual who is 72 percent disabled in the example would receive a 70 percent combined evaluation. This paragraph also provides instructions for combining more than two disabilities. Using the example of combining disabilities evaluated at 60 percent, 40 percent and 20 percent, the result is 80.8 percent; however, because the combination result is a decimal, it is converted to a whole number, and decimals of .5 or higher are adjusted upward. The result is an 81 percent evaluation that is converted to the nearest degree divisible by 10, or 80 percent. B. How the Bilateral Factor Is Applied Section 4.26 of title 38, CFR, provides that when a partial disability results from disease or injury of both arms, or of both legs, or of paired skeletal muscles, the ratings for the disabilities of the right and left sides will be combined as usual, and 10 percent of this value will be added (i.e., not combined) before proceeding with PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 22915 further combinations, or converting to degree of disability. The bilateral factor will be applied to such bilateral disabilities before other combinations are carried out and the rating for such disabilities including the bilateral factor in § 4.26 will be treated as 1 disability for the purpose of arranging in order of severity and for all further combinations. C. How the Bilateral Factor Lowers Evaluations in Isolated Cases The bilateral factor calculation does two things: (1) it combines bilateral disability evaluations together and (2) adds 10 percent of that total value to those combined bilateral disabilities, with a potential to increase the overall combined evaluation. However, the closer the combined evaluation approaches 100 percent, the smaller the effect of the additional disability on the combined rating, and, in limited cases, the bilateral factor yields a lower evaluation than if it were not applied to some or all of a particular veteran’s bilateral disability evaluations. An example of this is when there are multiple disabilities that combine to 93 percent, plus two other 10-percent evaluations. Applying the bilateral factor, 10 and 10 first combine to 19, and 1.9 (representing 10 percent of 19) is added (not combined) to the 19, resulting in 20.9. This is rounded to 21 (the nearest whole number) and combined with 93 percent. 93 percent and 21 percent combine to 94.47, which is rounded to 94 and then adjusted downward to a final combined rating of 90 percent. However, if the bilateral factor is not applied, 93 and 10 combine to 93.7, which is rounded to 94, then 94 and 10 combine to 94.6, which is rounded to 95. This is then adjusted upward to a final combined rating of 100 percent. Thus, in this example, not applying the bilateral factor results in a greater benefit to the veteran. This effect can also be observed when combining 92 percent and 31 percent, where 31 percent is the result of two bilateral disabilities at 20 percent and 10 percent, compared to combining 92 percent with 20 percent and 10 percent separately. Applying the bilateral factor, 92 percent and 31 percent combine to 94.48, which is rounded to 94 and then adjusted downward to a final combined rating of 90 percent. If the bilateral factor is not applied, 92 percent and 20 percent combine to 93.6, which is rounded to 94, and 94 percent and 10 percent combine to 94.6, which is rounded to 95. This is then adjusted upward to a final combined rating of 100 percent. E:\FR\FM\14APR1.SGM 14APR1 22916 Federal Register / Vol. 88, No. 72 / Friday, April 14, 2023 / Rules and Regulations II. The Solution VA considered several solutions to arrive at one that resolves this issue without creating new ones. First, it is important to note that the bilateral factor increases combined evaluations in many cases or at least results in the same evaluation that could be obtained without it in almost every case. It is only at the low 90-percent level where it may reduce a combined evaluation; therefore, VA determined that simply eliminating the bilateral factor regulation would not be beneficial to veterans. VA also rejected other potential solutions that would have revised combination results less than 90 percent, as those would have overcorrected for the problem. Instead, VA determined that the most appropriate solution is simply to allow disabilities that affect extremities but also cause the bilateral factor calculation to lower the combined evaluation to be excluded from the bilateral factor calculation. VA will make the necessary system changes so that when a combined evaluation equals 90 percent and the bilateral factor has been applied, VA’s claims processing system will perform calculations to determine if a 100 percent rating can be achieved if a bilateral disability or multiple bilateral disabilities are excluded. If so, the system will assign a 100 percent combined evaluation. To implement this change, VA is adding an exception to the requirement in 38 CFR 4.26 that all bilateral disabilities must be combined as usual and 10 percent of the combined value added before proceeding with further combinations or converting to degree of disability. The exception will allow VA to avoid applying the bilateral factor calculation for a given bilateral disability or disabilities if excluding that disability or disabilities will allow for a higher combined evaluation when combined separately. ddrumheller on DSK120RN23PROD with RULES1 III. Converting Cases Based on VA’s Own Initiative This rulemaking, to amend § 4.26 to enable a veteran to receive an increased evaluation, is considered a liberalizing VA issue within the meaning of 38 U.S.C. 5110(g) and 38 CFR 3.114 because it would result in higher ratings for impacted veterans than would currently result under § 4.26. Section 3.114 also provides authority for VA to review claims on its own initiative after a liberalizing VA issue has become effective. In this well-defined, limited situation, VA can identify all veterans who would benefit from the application of this bilateral factor exception. VerDate Sep<11>2014 16:10 Apr 13, 2023 Jkt 259001 Therefore, VA will adjust all the affected combined evaluations running on the effective date of this rulemaking without requiring a claim from affected veterans or their authorized representatives. VA will also provide notice of this adjustment to affected veterans and their representatives in accordance with 38 U.S.C. 5104. Advance notice is not required because it would have no adverse impact on the affected veterans. Finally, the provisions of 38 U.S.C. 5110(g) and 38 CFR 3.114 will apply if a veteran requests a review based on this liberalizing issue. Under those provisions, the effective date of an increased evaluation based on this liberalizing VA issue may be authorized from the effective date of this issue if the claim is received within one year of that date. If the claim is received more than one year from the effective date of this liberalizing VA issue, then the effective date of the increased evaluation may be authorized for a period of one year prior to the date the claim is received. IV. Regulatory Amendments For the reasons discussed above, VA is amending 38 CFR 4.26 as follows: VA is amending the introductory paragraph by adding ‘‘Except as provided in paragraph (d) of this section,’’ to the first sentence and replacing ‘‘10’s’’ with ‘‘10 percent evaluations’’ in the penultimate sentence. VA is adding new paragraph (d) to provide the exception to the application of the bilateral factor. Administrative Procedure Act The Secretary of Veterans Affairs finds that there is good cause, under the provisions of 5 U.S.C. 553(b)(B), that advance notice and opportunity for public comment is contrary to the public interest, particularly to veterans with bilateral disability evaluations. This interim final rule enables VA to provide higher evaluations for a number of veterans that will entitle them to additional benefits from VA and other Federal and state government agencies. It would have been contrary to the public interest to provide opportunity for prior notice and comment for this rulemaking because a delay in implementation would have required VA rating officials to continue to apply the bilateral factor even where it results in a lower rating for impacted veterans. Moreover, this rule will not negatively impact any veterans but rather will only serve to provide higher ratings where feasible. Lastly, a delay in implementation would have denied veterans timely access to benefits based PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 on the appropriate combined rating warranted by their disabilities. For the same reasons, VA finds that there is good cause under 5 U.S.C. 553(d)(3) to make this rule effective upon the date of publication. For the above reasons, VA is issuing this rule as an interim final rule with immediate effect. However, VA will consider and address comments that are received within 60 days of the date this interim final rule is published in the Federal Register. Executive Orders 12866 and 13563 Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The Office of Information and Regulatory Affairs has determined that this rule is not a significant regulatory action under Executive Order 12866. The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at www.regulations.gov. Regulatory Flexibility Act The Regulatory Flexibility Act, 5 U.S.C. 601–612, is not applicable to this rulemaking because notice of proposed rulemaking is not required. 5 U.S.C. 601(2), 603(a), 604(a). 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 interim final rule will have no such effect on State, local, and tribal governments, or on the private sector. Paperwork Reduction Act This interim final rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501– 3521). E:\FR\FM\14APR1.SGM 14APR1 Federal Register / Vol. 88, No. 72 / Friday, April 14, 2023 / Rules and Regulations Congressional Review Act Pursuant to Congressional Review Act) (5 U.S.C. 801 et seq.), the Office of Information and Regulatory Affairs designated this rule as not a major rule, as defined by 5 U.S.C. 804(2). List of Subjects in 38 CFR Part 4 Disability benefits. Signing Authority Denis McDonough, Secretary of Veterans Affairs, approved this document on June 6, 2022, 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. Jeffrey M. Martin, Assistant Director, Office of Regulation Policy & Management, Office of General Counsel, Department of Veterans Affairs. For the reasons stated in the preamble, VA amends 38 CFR part 4 as set forth below: PART 4—SCHEDULE FOR RATING DISABILITIES 2. Amend § 4.26 by: a. Revising the introductory text; b. Adding headings to paragraphs (a) through (c); and ■ c. Adding paragraph (d). The revision and additions read as follows: ■ ■ ■ ddrumheller on DSK120RN23PROD with RULES1 DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Cod in the Bering Sea and Aleutian Islands Management Area Authority: 38 U.S.C. 1155, unless otherwise noted. National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; modification of a closure; request for comments. AGENCY: NMFS is opening directed fishing for Pacific cod by catcher vessels using trawl gear in the Bering Sea and Aleutian Islands Management Area (BSAI). This action is necessary to fully use the 2023 total allowable catch of Pacific cod allocated to catcher vessels using trawl gear in the BSAI. DATES: Effective 1200 hours, Alaska local time (A.l.t.), April 13, 2023, through 1200 hours, A.l.t., June 10, 2023. Comments must be received at the following address no later than 4:30 p.m., A.l.t., May 1, 2023. ADDRESSES: You may submit comments on this document, identified by docket number NOAA–NMFS–2022–0094, by any of the following methods: Electronic Submission: Submit all electronic public comments via the Federal e- Rulemaking Portal. Go to https://www.regulations.gov and enter NOAA–NMFS–2022–0094 in the Search box. Click on the ‘‘Comment’’ icon, complete the required fields, and enter or attach your comments. SUMMARY: Bilateral factor. Except as provided in paragraph (d) of this section, when a partial disability results from disease or injury of both arms, or of both legs, or of paired skeletal muscles, the ratings for the disabilities of the right and left sides will be combined as usual, and 10 percent of this value will be added (i.e., not combined) before proceeding with further combinations, or converting to degree of disability. The bilateral factor will be applied to such bilateral disabilities before other combinations are carried out and the rating for such disabilities including the bilateral factor in this section will be treated as one disability for the purpose of arranging in order of severity and for all further combinations. For example, with disabilities evaluated at 60 percent, 20 percent, 10 percent and 10 percent (with the two 10 percent evaluations being bilateral disabilities), the order of severity would be 60, 21 and 20. The 60 and 21 combine to 68 percent and the 16:10 Apr 13, 2023 BILLING CODE 8320–01–P RTID 0648–XC924 1. The authority citation for part 4 continues to read as follows: VerDate Sep<11>2014 [FR Doc. 2023–07426 Filed 4–13–23; 8:45 am] [Docket No. 230306–0065] ■ § 4.26 68 and 20 combine to 74 percent, converted to 70 percent as the final degree of disability. (a) Definitions. * * * (b) Procedure for four affected extremities. * * * (c) Applicability. * * * (d) Exception. In cases where the combined evaluation is lower than what could be achieved by not including one or more bilateral disabilities in the bilateral factor calculation, those bilateral disabilities will be removed from the bilateral factor calculation and combined separately, to achieve the combined evaluation most favorable to the veteran. Jkt 259001 PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 22917 Mail: Submit written comments to Gretchen Harrington, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region NMFS. Mail comments to P.O. Box 21668, Juneau, AK 99802–1668. Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter ‘‘N/A’’ in the required fields if you wish to remain anonymous). FOR FURTHER INFORMATION CONTACT: Krista Milani, 907–581–2062. SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR parts 600 and 679. The B season apportionment of the 2023 Pacific cod TAC allocated to catcher vessels using trawl gear in the BSAI is 2,949 metric tons (mt) as established by the final 2023 and 2024 harvest specifications for groundfish in the BSAI (88 FR 14926, March 10, 2023). NMFS closed directed fishing for Pacific cod by catcher vessels using trawl gear in the BSAI under § 679.20(d)(1)(iii) on April 2, 2023 (88 FR 20080, April 5, 2023). NMFS has determined that as of April 10, 2023, approximately 2,000 metric tons of Pacific cod remain in the B season apportionment of the 2023 Pacific cod allocated to catcher vessels using trawl gear in the BSAI. Therefore, in accordance with § 679.25(a)(1)(i), (a)(2)(i)(C), and (a)(2)(iii)(D), and to fully use the 2023 total allowable catch (TAC) of Pacific cod in the BSAI, NMFS is terminating the previous closure and is opening directed fishing for Pacific cod by catcher vessels using trawl gear in the BSAI. The Administrator, Alaska Region, NMFS, (Regional Administrator) considered the following factors in E:\FR\FM\14APR1.SGM 14APR1

Agencies

[Federal Register Volume 88, Number 72 (Friday, April 14, 2023)]
[Rules and Regulations]
[Pages 22914-22917]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-07426]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 4

RIN 2900-AR51


Exceptions to Applying the Bilateral Factor in VA Disability 
Calculations

AGENCY: Department of Veterans Affairs.

ACTION: Interim final rule.

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

SUMMARY: The Department of Veterans Affairs (VA) is issuing this 
interim final

[[Page 22915]]

rule to amend the regulation governing the bilateral factor for 
diseases and injuries of both arms, both legs, or paired skeletal 
muscles. More specifically, this interim final rule will allow VA 
adjudicators to exclude certain disabilities that would be calculated 
using the bilateral factor to determine the combined evaluation if, by 
their exclusion, a higher combined evaluation can be achieved.

DATES: 
    Effective date: This interim final rule is effective April 16, 
2023.
    Comment date: Comments must be received on or before June 13, 2023.

ADDRESSES: Comments must be submitted through www.regulations.gov. 
Except as provided below, comments received before the close of the 
comment period will be available at www.regulations.gov for public 
viewing, inspection, or copying, including any personally identifiable 
or confidential business information that is included in a comment. We 
post the comments received before the close of the comment period on 
the following website as soon as possible after they have been 
received: https://www.regulations.gov. VA will not post on 
Regulations.gov public comments that make threats to individuals or 
institutions or suggest that the commenter will take actions to harm 
the individual. VA encourages individuals not to submit duplicative 
comments. We will post acceptable comments from multiple unique 
commenters even if the content is identical or nearly identical to 
other comments. Any public comment received after the comment period's 
closing date is considered late and will not be considered in the final 
rulemaking.

FOR FURTHER INFORMATION CONTACT: Olumayowa Famakinwa, Chief, VA 
Schedule for Rating Disabilities (VASRD) Implementation Staff (218B), 
Compensation Service (21C), Department of Veterans Affairs, 810 Vermont 
Avenue NW, Washington, DC 20420, (202) 461-9700. (This is not a toll-
free telephone number.)

SUPPLEMENTARY INFORMATION:

I. The Need for Updating Bilateral Factor Policy

    VA conducted claims data analysis and determined that, in very 
limited circumstances, an unintended negative impact can result based 
on VA's ``bilateral factor'' calculation, which is applied when 
disabilities involving paired extremities are service connected. 
Specifically, adding an extremity to a veteran's total combined (100 
percent) evaluation in some cases can result in a less favorable 90 
percent evaluation. To remedy this unintended negative impact, VA is 
amending its regulation regarding the bilateral factor to ensure 
affected veterans receive the appropriate level of compensation that 
their disabilities warrant.

A. How Combined Evaluations Are Calculated

    By statute, VA assigns a combined evaluation for all service-
connected disabilities using a schedule of 10 grades--10 percent, 20 
percent, 30 percent, 40 percent, 50 percent, 60 percent, 70 percent, 80 
percent, 90 percent and 100 percent (sometimes referred to as 
``total''). See 38 U.S.C. 1155. This combined evaluation serves as the 
basis for a veteran's monthly compensation. Id. Instructions for 
combining evaluations for multiple service-connected disabilities are 
found in 38 CFR 4.25. Specifically, Sec.  4.25 states that combinations 
must be done by order of severity (larger numbers first, smaller 
numbers last) and that, for example, ``a person having a 60 percent 
disability is considered 40 percent efficient. Proceeding from this 40 
percent efficiency, the effect of a further 30 percent disability is to 
leave only 70 percent of the efficiency remaining after consideration 
of the first disability, or 28 percent efficiency altogether. The 
individual is thus 72 percent disabled[.]''
    Paragraph (a) of 38 CFR 4.25 further states that ``[t]his combined 
value will then be converted to the nearest number divisible by 10, and 
combined values ending in 5 will be adjusted upward.'' Therefore, the 
individual who is 72 percent disabled in the example would receive a 70 
percent combined evaluation. This paragraph also provides instructions 
for combining more than two disabilities. Using the example of 
combining disabilities evaluated at 60 percent, 40 percent and 20 
percent, the result is 80.8 percent; however, because the combination 
result is a decimal, it is converted to a whole number, and decimals of 
.5 or higher are adjusted upward. The result is an 81 percent 
evaluation that is converted to the nearest degree divisible by 10, or 
80 percent.

B. How the Bilateral Factor Is Applied

    Section 4.26 of title 38, CFR, provides that when a partial 
disability results from disease or injury of both arms, or of both 
legs, or of paired skeletal muscles, the ratings for the disabilities 
of the right and left sides will be combined as usual, and 10 percent 
of this value will be added (i.e., not combined) before proceeding with 
further combinations, or converting to degree of disability. The 
bilateral factor will be applied to such bilateral disabilities before 
other combinations are carried out and the rating for such disabilities 
including the bilateral factor in Sec.  4.26 will be treated as 1 
disability for the purpose of arranging in order of severity and for 
all further combinations.

C. How the Bilateral Factor Lowers Evaluations in Isolated Cases

    The bilateral factor calculation does two things: (1) it combines 
bilateral disability evaluations together and (2) adds 10 percent of 
that total value to those combined bilateral disabilities, with a 
potential to increase the overall combined evaluation. However, the 
closer the combined evaluation approaches 100 percent, the smaller the 
effect of the additional disability on the combined rating, and, in 
limited cases, the bilateral factor yields a lower evaluation than if 
it were not applied to some or all of a particular veteran's bilateral 
disability evaluations.
    An example of this is when there are multiple disabilities that 
combine to 93 percent, plus two other 10-percent evaluations. Applying 
the bilateral factor, 10 and 10 first combine to 19, and 1.9 
(representing 10 percent of 19) is added (not combined) to the 19, 
resulting in 20.9. This is rounded to 21 (the nearest whole number) and 
combined with 93 percent. 93 percent and 21 percent combine to 94.47, 
which is rounded to 94 and then adjusted downward to a final combined 
rating of 90 percent. However, if the bilateral factor is not applied, 
93 and 10 combine to 93.7, which is rounded to 94, then 94 and 10 
combine to 94.6, which is rounded to 95. This is then adjusted upward 
to a final combined rating of 100 percent. Thus, in this example, not 
applying the bilateral factor results in a greater benefit to the 
veteran.
    This effect can also be observed when combining 92 percent and 31 
percent, where 31 percent is the result of two bilateral disabilities 
at 20 percent and 10 percent, compared to combining 92 percent with 20 
percent and 10 percent separately. Applying the bilateral factor, 92 
percent and 31 percent combine to 94.48, which is rounded to 94 and 
then adjusted downward to a final combined rating of 90 percent. If the 
bilateral factor is not applied, 92 percent and 20 percent combine to 
93.6, which is rounded to 94, and 94 percent and 10 percent combine to 
94.6, which is rounded to 95. This is then adjusted upward to a final 
combined rating of 100 percent.

[[Page 22916]]

II. The Solution

    VA considered several solutions to arrive at one that resolves this 
issue without creating new ones. First, it is important to note that 
the bilateral factor increases combined evaluations in many cases or at 
least results in the same evaluation that could be obtained without it 
in almost every case. It is only at the low 90-percent level where it 
may reduce a combined evaluation; therefore, VA determined that simply 
eliminating the bilateral factor regulation would not be beneficial to 
veterans. VA also rejected other potential solutions that would have 
revised combination results less than 90 percent, as those would have 
overcorrected for the problem.
    Instead, VA determined that the most appropriate solution is simply 
to allow disabilities that affect extremities but also cause the 
bilateral factor calculation to lower the combined evaluation to be 
excluded from the bilateral factor calculation. VA will make the 
necessary system changes so that when a combined evaluation equals 90 
percent and the bilateral factor has been applied, VA's claims 
processing system will perform calculations to determine if a 100 
percent rating can be achieved if a bilateral disability or multiple 
bilateral disabilities are excluded. If so, the system will assign a 
100 percent combined evaluation.
    To implement this change, VA is adding an exception to the 
requirement in 38 CFR 4.26 that all bilateral disabilities must be 
combined as usual and 10 percent of the combined value added before 
proceeding with further combinations or converting to degree of 
disability. The exception will allow VA to avoid applying the bilateral 
factor calculation for a given bilateral disability or disabilities if 
excluding that disability or disabilities will allow for a higher 
combined evaluation when combined separately.

III. Converting Cases Based on VA's Own Initiative

    This rulemaking, to amend Sec.  4.26 to enable a veteran to receive 
an increased evaluation, is considered a liberalizing VA issue within 
the meaning of 38 U.S.C. 5110(g) and 38 CFR 3.114 because it would 
result in higher ratings for impacted veterans than would currently 
result under Sec.  4.26. Section 3.114 also provides authority for VA 
to review claims on its own initiative after a liberalizing VA issue 
has become effective. In this well-defined, limited situation, VA can 
identify all veterans who would benefit from the application of this 
bilateral factor exception. Therefore, VA will adjust all the affected 
combined evaluations running on the effective date of this rulemaking 
without requiring a claim from affected veterans or their authorized 
representatives. VA will also provide notice of this adjustment to 
affected veterans and their representatives in accordance with 38 
U.S.C. 5104. Advance notice is not required because it would have no 
adverse impact on the affected veterans. Finally, the provisions of 38 
U.S.C. 5110(g) and 38 CFR 3.114 will apply if a veteran requests a 
review based on this liberalizing issue. Under those provisions, the 
effective date of an increased evaluation based on this liberalizing VA 
issue may be authorized from the effective date of this issue if the 
claim is received within one year of that date. If the claim is 
received more than one year from the effective date of this 
liberalizing VA issue, then the effective date of the increased 
evaluation may be authorized for a period of one year prior to the date 
the claim is received.

IV. Regulatory Amendments

    For the reasons discussed above, VA is amending 38 CFR 4.26 as 
follows:
    VA is amending the introductory paragraph by adding ``Except as 
provided in paragraph (d) of this section,'' to the first sentence and 
replacing ``10's'' with ``10 percent evaluations'' in the penultimate 
sentence.
    VA is adding new paragraph (d) to provide the exception to the 
application of the bilateral factor.

Administrative Procedure Act

    The Secretary of Veterans Affairs finds that there is good cause, 
under the provisions of 5 U.S.C. 553(b)(B), that advance notice and 
opportunity for public comment is contrary to the public interest, 
particularly to veterans with bilateral disability evaluations. This 
interim final rule enables VA to provide higher evaluations for a 
number of veterans that will entitle them to additional benefits from 
VA and other Federal and state government agencies.
    It would have been contrary to the public interest to provide 
opportunity for prior notice and comment for this rulemaking because a 
delay in implementation would have required VA rating officials to 
continue to apply the bilateral factor even where it results in a lower 
rating for impacted veterans. Moreover, this rule will not negatively 
impact any veterans but rather will only serve to provide higher 
ratings where feasible. Lastly, a delay in implementation would have 
denied veterans timely access to benefits based on the appropriate 
combined rating warranted by their disabilities.
    For the same reasons, VA finds that there is good cause under 5 
U.S.C. 553(d)(3) to make this rule effective upon the date of 
publication.
    For the above reasons, VA is issuing this rule as an interim final 
rule with immediate effect. However, VA will consider and address 
comments that are received within 60 days of the date this interim 
final rule is published in the Federal Register.

Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, when 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, and other advantages; distributive impacts; 
and equity). Executive Order 13563 (Improving Regulation and Regulatory 
Review) emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
The Office of Information and Regulatory Affairs has determined that 
this rule is not a significant regulatory action under Executive Order 
12866. The Regulatory Impact Analysis associated with this rulemaking 
can be found as a supporting document at www.regulations.gov.

Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601-612, is not applicable 
to this rulemaking because notice of proposed rulemaking is not 
required. 5 U.S.C. 601(2), 603(a), 604(a).

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

Paperwork Reduction Act

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

[[Page 22917]]

Congressional Review Act

    Pursuant to Congressional Review Act) (5 U.S.C. 801 et seq.), the 
Office of Information and Regulatory Affairs designated this rule as 
not a major rule, as defined by 5 U.S.C. 804(2).

List of Subjects in 38 CFR Part 4

    Disability benefits.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved this 
document on June 6, 2022, 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.

Jeffrey M. Martin,
Assistant Director, Office of Regulation Policy & Management, Office of 
General Counsel, Department of Veterans Affairs.

    For the reasons stated in the preamble, VA amends 38 CFR part 4 as 
set forth below:

PART 4--SCHEDULE FOR RATING DISABILITIES

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

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


0
2. Amend Sec.  4.26 by:
0
a. Revising the introductory text;
0
b. Adding headings to paragraphs (a) through (c); and
0
c. Adding paragraph (d).
    The revision and additions read as follows:


Sec.  4.26  Bilateral factor.

    Except as provided in paragraph (d) of this section, when a partial 
disability results from disease or injury of both arms, or of both 
legs, or of paired skeletal muscles, the ratings for the disabilities 
of the right and left sides will be combined as usual, and 10 percent 
of this value will be added (i.e., not combined) before proceeding with 
further combinations, or converting to degree of disability. The 
bilateral factor will be applied to such bilateral disabilities before 
other combinations are carried out and the rating for such disabilities 
including the bilateral factor in this section will be treated as one 
disability for the purpose of arranging in order of severity and for 
all further combinations. For example, with disabilities evaluated at 
60 percent, 20 percent, 10 percent and 10 percent (with the two 10 
percent evaluations being bilateral disabilities), the order of 
severity would be 60, 21 and 20. The 60 and 21 combine to 68 percent 
and the 68 and 20 combine to 74 percent, converted to 70 percent as the 
final degree of disability.
    (a) Definitions. * * *
    (b) Procedure for four affected extremities. * * *
    (c) Applicability. * * *
    (d) Exception. In cases where the combined evaluation is lower than 
what could be achieved by not including one or more bilateral 
disabilities in the bilateral factor calculation, those bilateral 
disabilities will be removed from the bilateral factor calculation and 
combined separately, to achieve the combined evaluation most favorable 
to the veteran.

[FR Doc. 2023-07426 Filed 4-13-23; 8:45 am]
BILLING CODE 8320-01-P
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