[Federal Register: October 17, 2008 (Volume 73, Number 202)]
[Proposed Rules]
[Page 62003-62032]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17oc08-29]
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Part III
Department of Veterans Affairs
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38 CFR Part 5
Special Ratings; Proposed Rule
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 5
RIN 2900-AL88
Special Ratings
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: The Department of Veterans Affairs (VA) proposes to reorganize
and rewrite in plain language regulations relating to special ratings
and ratings for health care eligibility only. These revisions are
proposed as part of VA's rewrite and reorganization of all of its
compensation and pension rules in a logical, claimant-focused, and
user-friendly format. The intended effect of the proposed revisions is
to assist claimants and VA personnel in locating and understanding
these provisions.
DATES: Comments must be received by VA on or before December 16, 2008.
ADDRESSES: Written comments may be submitted through http://
www.Regulations.gov; by mail or hand-delivery to Director, Regulations
Management (02REG), Department of Veterans Affairs, 810 Vermont Ave.,
NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026.
(This is not a toll free number). Comments should indicate that they
are submitted in response to ``RIN 2900-AL88--Special Ratings.'' Copies
of comments received will be available for public inspection in the
Office of Regulation Policy and Management, Room 1063B, between the
hours of 8 a.m. and 4:30 p.m., Monday through Friday (except holidays).
Please call (202) 461-4902 for an appointment. (This is not a toll free
number). In addition, during the comment period, comments may be viewed
online through the Federal Docket Management System (FDMS) at http://
www.Regulations.gov.
FOR FURTHER INFORMATION CONTACT: William F. Russo, Director,
Regulations Management (02REG), Department of Veterans Affairs, 810
Vermont Avenue, NW., Washington, DC 20420, (202) 273-9515. (This is not
a toll free number).
SUPPLEMENTARY INFORMATION: The Secretary of Veterans Affairs has
established an Office of Regulation Policy and Management (ORPM) to
provide centralized management and coordination of VA's rulemaking
process. One of the major functions of this office is to oversee a
Regulation Rewrite Project (the Project) to improve the clarity and
consistency of existing VA regulations. The Project responds to a
recommendation made in the October 2001 ``VA Claims Processing Task
Force: Report to the Secretary of Veterans Affairs.'' The Task Force
recommended that the compensation and pension regulations be rewritten
and reorganized in order to improve VA's claims adjudication process.
Therefore, the Project began its efforts by reviewing, reorganizing,
and redrafting the content of the regulations in 38 CFR part 3
governing the compensation and pension program of the Veterans Benefits
Administration. These regulations are among the most difficult VA
regulations for readers to understand and apply.
Once rewritten, the proposed regulations will be published in
several portions for public review and comment. This is one such
portion. It includes proposed rules regarding special ratings. After
review and consideration of public comments, final versions of these
proposed regulations will ultimately be published in a new part 5 in 38
CFR.
Outline
Overview of New Part 5 Organization
Overview of This Notice of Proposed Rulemaking
Table Comparing Current Part 3 Rules With Proposed Part 5 Rules
Content of Proposed Regulations
Special Monthly Compensation
5.320 Determining need for regular aid and attendance.
5.321 Additional compensation for veteran whose spouse needs regular
aid and attendance.
5.322 Special monthly compensation--general information and
definitions of disabilities.
5.323 Special monthly compensation under 38 U.S.C. 1114(k).
5.324 Special monthly compensation under 38 U.S.C. 1114(l).
5.325 Special monthly compensation at the intermediate rate between
38 U.S.C. 1114(l) and (m).
5.326 Special monthly compensation under 38 U.S.C. 1114(m).
5.327 Special monthly compensation at the intermediate rate between
38 U.S.C. 1114(m) and (n).
5.328 Special monthly compensation under 38 U.S.C. 1114(n).
5.329 Special monthly compensation at the intermediate rate between
38 U.S.C. 1114(n) and (o).
5.330 Special monthly compensation under 38 U.S.C. 1114(o).
5.331 Special monthly compensation under 38 U.S.C. 1114(p).
5.332 Additional allowance for regular aid and attendance under 38
U.S.C. 1114(r)(1) or for a higher level of care under 38 U.S.C.
1114(r)(2).
5.333 Special monthly compensation under 38 U.S.C. 1114(s).
5.334 Special monthly compensation tables.
5.335 Effective dates--Special monthly compensation under Sec. Sec.
5.332 and 5.333.
5.336 Effective dates--additional compensation for regular aid and
attendance payable for a veteran's spouse under Sec. 5.321.
5.337 Award of special monthly compensation based on the need for
regular aid and attendance during period of hospitalization.
Tuberculosis
5.340 Pulmonary tuberculosis shown by X-ray in active service.
5.341 Presumptive service connection for tuberculous disease;
wartime and service after December 31, 1946.
5.342 Initial grant following inactivity of tuberculosis.
5.343 Effect of diagnosis of active tuberculosis.
5.344 Determination of inactivity (complete arrest) of tuberculosis.
5.345 Changes from activity in pulmonary tuberculosis pension cases.
5.346 Tuberculosis and compensation under 38 U.S.C. 1114(q) and
1156.
5.347 Continuance of a total disability rating for service-connected
tuberculosis.
Injury or Death Due to Hospitalization or Treatment
5.350 Benefits under 38 U.S.C. 1151(a) for additional disability or
death due to hospital care, medical or surgical treatment,
examination, training and rehabilitation services, or compensated
work therapy program.
5.351 Effective dates for awards of benefits under 38 U.S.C.
1151(a).
5.352 Effect on benefits awarded under 38 U.S.C. 1151(a) of Federal
Tort Claims Act compromises, settlements, and judgments entered
after November 30, 1962.
5.353 Effect on benefits awarded under 38 U.S.C. 1151(a) of Federal
Tort Claims Act administrative awards, compromises, settlements, and
judgments finalized before December 1, 1962.
Ratings for Healthcare Eligibility Only
5.360 Service connection of dental conditions for treatment
purposes.
5.361 Healthcare eligibility of persons administratively discharged
under other-than-honorable conditions.
5.362 Presumption of service incurrence of active psychosis for
purposes of hospital, nursing home, domiciliary, and medical care.
5.363 Determination of service connection for former members of the
Armed Forces of Czechoslovakia or Poland.
Miscellaneous Service-Connection Regulations
5.365 Claims based on the effects of tobacco products.
5.366 Disability due to impaired hearing.
5.367 Civil service preference ratings.
5.368 Basic eligibility determinations: home loan and education
benefits.
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Endnote Regarding Amendatory Language
Paperwork Reduction Act
Regulatory Flexibility Act
Executive Order 12866
Unfunded Mandates
Catalog of Federal Domestic Assistance Numbers and Titles
List of Subjects in 38 CFR Part 5
Overview of New Part 5 Organization
We plan to organize the new part 5 regulations so that most
provisions governing a specific benefit are located in the same
subpart, with general provisions pertaining to all compensation and
pension benefits also grouped together. This organization will allow
claimants, beneficiaries, and their representatives, as well as VA
adjudicators, to find information relating to a specific benefit more
quickly than the organization provided in current part 3.
The first major subdivision would be ``Subpart A--General
Provisions.'' It would include information regarding the scope of the
regulations in new part 5, general definitions, and general policy
provisions for this part. This subpart was published as proposed on
March 31, 2006. See 71 FR 16464.
``Subpart B--Service Requirements for Veterans'' would include
information regarding a veteran's military service, including the
minimum service requirement, types of service, periods of war, and
service evidence requirements. This subpart was published as proposed
on January 30, 2004. See 69 FR 4820.
``Subpart C--Adjudicative Process, General'' would inform readers
about types of claims and filing procedures, VA's duties, rights and
responsibilities of claimants and beneficiaries, general evidence
requirements, and effective dates for new awards, as well as revision
of decisions and protection of VA ratings. This subpart will be
published as three separate Notices of Proposed Rulemaking (NPRMs) due
to its size. The first, concerning the duties of VA and the rights and
responsibilities of claimants and beneficiaries, was published as
proposed on May 10, 2005. See 70 FR 24680. The second, covering general
evidence requirements, effective dates for awards, revision of
decisions, and protection of VA ratings, was published as proposed on
May 22, 2007. See 72 FR 28770. The third NPRM, concerning rules on
filing VA benefits claims, was published as proposed on April 14, 2008.
See 73 FR 20136.
``Subpart D--Dependents and Survivors'' would inform readers how VA
determines whether an individual is a dependent or a survivor of a
veteran. It would also provide the evidence requirements for these
determinations. This subpart was published as proposed on September 20,
2006. See 71 FR 55052.
``Subpart E--Claims for Service Connection and Disability
Compensation'' would define service-connected compensation, including
direct and secondary service connection. This subpart would inform
readers how VA determines entitlement to service connection. The
subpart would also contain those provisions governing presumptions
related to service connection, rating principles, and effective dates,
as well as several special ratings. This subpart will be published as
three separate NPRMs due to its size. The first, concerning
presumptions related to service connection, was published as proposed
on July 27, 2004. See 69 FR 44614. The second, concerning special
ratings, is the subject of this document.
``Subpart F--Nonservice-Connected Disability Pensions and Death
Pensions'' would include information regarding the three types of
nonservice-connected pension: Old-Law Pension, Section 306 Pension, and
Improved Pension. This subpart would also include those provisions that
state how to establish entitlement to Improved Pension, and the
effective dates governing each pension. This subpart would be published
in two separate NPRMs due to its size. The portion concerning Old-Law
Pension, Section 306 Pension, and elections of Improved Pension was
published as proposed on December 27, 2004. See 69 FR 77578. The
portion concerning Improved Pension was published as proposed on
September 26, 2007. See 72 FR 54776.
``Subpart G--Dependency and Indemnity Compensation, Accrued
Benefits, and Special Rules Applicable Upon Death of a Beneficiary''
would contain regulations governing claims for dependency and indemnity
compensation (DIC); accrued benefits; benefits awarded, but unpaid at
death; and various special rules that apply to the disposition of VA
benefits, or proceeds of VA benefits, when a beneficiary dies. This
subpart would also include related definitions, effective-date rules,
and rate-of-payment rules. This subpart was published as two separate
NPRMs due to its size. The portion concerning accrued benefits, special
rules applicable upon the death of a beneficiary, and several
effective-date rules was published as proposed on October 1, 2004. See
69 FR 59072. The portion concerning DIC benefits and general provisions
relating to proof of death and service-connected cause of death was
published as proposed on October 21, 2005. See 70 FR 61326.
``Subpart H--Special and Ancillary Benefits for Veterans,
Dependents, and Survivors'' would pertain to special and ancillary
benefits available, including benefits for children with various birth
defects. This subpart was published as proposed on March 9, 2007. See
72 FR 10860.
``Subpart I--Benefits for Certain Filipino Veterans and Survivors''
would pertain to the various benefits available to Filipino veterans
and their survivors. This subpart was published as proposed on June 30,
2006. See 71 FR 37790.
``Subpart J--Burial Benefits'' would pertain to burial allowances.
This subpart was published as proposed on April 8, 2008. See 73 FR
19021.
``Subpart K--Matters Affecting the Receipt of Benefits'' would
contain provisions regarding bars to benefits, forfeiture of benefits,
and renouncement of benefits. This subpart was published as proposed on
May 31, 2006. See 71 FR 31056.
``Subpart L--Payments and Adjustments to Payments'' would include
general rate-setting rules, several adjustment and resumption
regulations, and election-of-benefit rules. This subpart will be
published as two separate NPRMs due to its size. The portion concerning
payments to beneficiaries who are eligible for more than one benefit
was published as proposed on October 2, 2007. See 72 FR 56136.
The final subpart, ``Subpart M--Apportionments to Dependents and
Payments to Fiduciaries and Incarcerated Beneficiaries,'' would include
regulations governing apportionments, benefits for incarcerated
beneficiaries, and guardianship.
Some of the regulations in this NPRM cross-reference other
compensation and pension regulations. If those regulations have been
published in this or earlier NPRMs for the Project, we cite the
proposed part 5 section. We also include, in the relevant portion of
the Supplementary Information, the Federal Register document citation
(including the Regulation Identifier Number and Subject Heading) where
a proposed part 5 section published in an earlier NPRM may be found.
However, where a regulation proposed in this NPRM would cross-reference
a proposed part 5 regulation that has not yet been published, we cite
the current part 3 regulation that deals with the same subject matter.
The current part 3 section we cite may differ from its eventual part 5
counterpart in some respects, but this method will assist
[[Page 62006]]
readers in understanding these proposed regulations where no part 5
counterpart has yet been published. If there is no part 3 counterpart
to a proposed part 5 regulation that has not yet been published, we
have inserted ``[regulation that will be published in a future Notice
of Proposed Rulemaking]'' where the part 5 regulation citation would be
placed.
Because of its large size, proposed part 5 will be published in a
number of NPRMs, such as this one. VA will not adopt any portion of
part 5 as final until all of the NPRMs have been published for public
comment.
In connection with this rulemaking, VA will accept comments
relating to a prior rulemaking issued as a part of the Project, if the
matter being commented on relates to both rulemakings.
Overview of This Notice of Proposed Rulemaking
This proposed rulemaking pertains to those regulations governing
special ratings. These regulations would be contained in proposed
Subpart E of new 38 CFR part 5. Although these regulations have been
substantially restructured and rewritten for greater clarity and ease
of use, most of the basic concepts contained in these proposed
regulations are the same as in their existing counterparts in 38 CFR
part 3. However, a few substantive changes are proposed, as are some
regulations that do not have counterparts in 38 CFR part 3.
Table Comparing Current Part 3 Rules With Proposed Part 5 Rules
The following table shows the relationship between the proposed
regulations contained in this NPRM and the current regulations in part
3:
------------------------------------------------------------------------
Based in whole or in part on
Proposed part 5 section or paragraph 38 CFR part 3 section or
paragraph
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5.320(a).................................. 3.351(b), 3.352(a) [first,
fifth-seventh sentences].
5.320(b).................................. 3.352(a) [second-fourth
sentences].
5.321(a).................................. 3.351(a)(2) and (b).
5.321(b)(1)-(3)........................... 3.351(c)(1)-(2).
5.321(c).................................. 3.351(c)(3).
5.322(a).................................. New.
5.322(b), (c)(1)-(3)...................... 3.350(a)(2)(i).
5.322(c)(4)............................... 3.350(a)(2)(i) (b) [sic].
5.322(d).................................. 3.350(c)(2).
5.322(e).................................. 3.350(d).
5.322(f).................................. 3.350(b)(2) [second
sentence].
5.322(g).................................. 3.350(a)(4).
5.323(a)(1)-(8)........................... 3.350(a).
5.323(b)(1)............................... 3.350(a).
5.323(b)(2)............................... 3.350(a).
5.323(c)(1)............................... New.
5.323(c)(2)............................... 3.350(a)(1)(i) [first
sentence].
5.323(c)(3)(i)-(iii)...................... 3.350(a)(1)(i) [second
sentence].
5.323(c)(3)(iv)........................... New.
5.323(c)(4)............................... New.
5.323(c)(5)............................... New.
5.323(c)(6)............................... 3.350(a)(1)(iii).
5.323(c)(7)............................... 3.350(a)(1)(iv).
5.323(d)(1)............................... 3.350(a)(3)(i).
5.323(d)(2)............................... 3.350(a)(3)(ii).
5.323(e).................................. 3.350(a)(5).
5.323(f).................................. 3.350(a)(6).
5.324 [introduction]...................... 3.350(b).
5.324(a).................................. 3.350(b), (b)(1).
5.324(b).................................. 3.350(b), (b)(1).
5.324(c).................................. 3.350(b), (b)(2).
5.324(d).................................. 3.350(b), (b)(4).
5.324(e).................................. 3.350(b)(3).
5.325 [introduction]...................... 3.350(f).
5.325(a).................................. 3.350(f)(1)(i).
5.325(b).................................. 3.350(f)(1)(iii).
5.325(c).................................. 3.350(f)(1)(vi).
5.325(d).................................. 3.350(f)(2)(i).
5.326 [introduction]...................... 3.350(c)(1).
5.326(a).................................. 3.350(c)(1)(i).
5.326(b).................................. 3.350(c)(1)(ii).
5.326(c).................................. 3.350(f)(1)(ii).
5.326(d).................................. 3.350(f)(1)(iv).
5.326(e).................................. 3.350(c)(1)(iii).
5.326(f).................................. 3.350(f)(1)(viii).
5.326(g).................................. 3.350(c)(1)(iv).
5.326(h).................................. 3.350(f)(2)(ii).
5.326(i).................................. 3.350(c)(1)(v), (c)(3), and
4.79 [last
sentence].
5.327 [introduction]...................... 3.350(f).
5.327(a).................................. 3.350(f)(1)(x).
5.327(b).................................. 3.350(f)(1)(v).
5.327(c).................................. 3.350(f)(1)(vii).
5.327(d).................................. 3.350(f)(1)(ix).
5.327(e).................................. 3.350(f)(2)(iii).
5.328..................................... 3.350(d) [introduction].
5.328(a).................................. 3.350(d)(1).
5.328(b).................................. 3.350(f)(1)(xi).
5.328(c).................................. 3.350(d)(2).
5.328(d).................................. 3.350(d) and (d)(3).
5.328(e).................................. 3.350(d)(4).
5.329..................................... 3.350(f), (f)(1)(xii).
5.330 [introduction]...................... 3.350(e)(1).
5.330(a).................................. 3.350(e)(1)(i).
5.330(b).................................. 3.350(e)(1)(iii).
5.330(c).................................. 3.350(e)(1)(iv).
5.330(d).................................. 3.350(e)(2).
5.330(e).................................. 3.350(e)(1)(ii) and (e)(3).
5.331(a).................................. 3.350(f).
5.331(b)(1)............................... 3.350(f)(2)(iv).
5.331(b)(2)............................... 3.350(f)(2)(v).
5.331(b)(3)............................... 3.350(f)(2)(vi).
5.331(c).................................. 3.350(f)(2)(vii).
5.331(c)(1)............................... 3.350(f)(2)(vii) (A).
5.331(c)(2)............................... 3.350(f)(2)(vii) (B).
5.331(c)(3)............................... 3.350(f)(2)(vii) (C).
5.331(d).................................. 3.350(f)(3) and (f)(4)(i).
5.331(e)(1),(2)........................... 3.350(f)(4).
5.331(e)(3)............................... 3.350(f)(4)(ii).
5.331(f).................................. 3.350(f)(5).
5.332(a).................................. 3.350(h)(1) and (2).
5.332(b).................................. 3.350(h).
5.332(c).................................. 3.350(h) and 3.352(b).
5.332(c)(1)(i)............................ 3.350(h)(2) and
3.352(b)(1)(i).
5.332(c)(1)(ii)........................... 3.352(b)(1)(ii).
5.332(c)(1)(iii).......................... 3.352(b)(1)(iii).
5.332(c)(1)(iv)........................... 3.352(b)(1)(iii).
5.332(c)(2)............................... 3.352(b)(2) [first
sentence].
5.332(c)(3)............................... 3.352(b)(2) [second
sentence].
5.332(c)(4)............................... 3.352(b)(2) [third
sentence].
5.332(c)(5)............................... 3.352(b)(3).
5.332(c)(6)............................... 3.352(b)(4).
5.333 [introduction]...................... 3.350(i).
5.333(a).................................. 3.350(i)(1).
5.333(b).................................. 3.350(i)(2).
5.334..................................... New.
5.335(a).................................. 3.401(a)(1).
5.335(b).................................. 3.401(a)(1).
5.336(a)(1)............................... 3.401(a)(3).
5.336(a)(2)............................... 3.401(a)(3).
5.336(b).................................. 3.501(b)(3).
5.337..................................... 3.401(a)(2).
5.340..................................... 3.370.
5.341..................................... 3.371.
5.342..................................... 3.372.
5.343..................................... 3.374.
5.344..................................... 3.375.
5.345..................................... 3.378.
5.346(a).................................. 3.959.
5.346(b)(1)(i)............................ 3.350(g)(1).
5.346(b)(1)(ii)........................... 3.401(g).
5.346(b)(2)............................... 3.350(g)(2).
5.347..................................... 3.343(b).
5.350..................................... 3.361.
5.351..................................... 3.361(a)(2), 3.400(i).
5.352..................................... 3.362.
5.353..................................... 3.363.
5.360(a).................................. New.
5.360(b).................................. 3.381(a).
5.360(c)(1)............................... 3.381(e)(1).
[[Page 62007]]
5.360(c)(2)............................... 3.381(e)(2).
5.360(c)(3)............................... 3.381(d)(5).
5.360(c)(4)............................... 3.381(d)(6).
5.360(d)(1)-(3)........................... 3.381(b).
5.360(d)(4)............................... 3.381(c) [first
sentence].
5.360(e) [introduction]................... 3.381(c) [second
sentence].
5.360(e)(1)............................... 3.381(d)(1).
5.360(e)(2)............................... 3.381(d)(2).
5.360(e)(3)............................... 3.381(d)(3).
5.360(e)(4)............................... 3.381(d)(4).
5.360(e)(5)............................... 3.381(e)(3).
5.360(e)(6)............................... 3.381(e)(4).
5.360(e)(7)............................... 3.381(f).
5.361(a).................................. 3.360(a).
5.361(b).................................. 3.360(c).
5.361(c).................................. 3.360(b).
5.362..................................... New.
5.363..................................... 3.359.
5.365..................................... 3.300.
5.366..................................... 3.385.
5.367..................................... 3.357.
5.368..................................... 3.315(b), (c).
------------------------------------------------------------------------
Readers who use this table to compare the proposed provisions with
the existing regulatory provisions, and who observe a difference
between them, should consult the text that appears later in this
document for an explanation of significant changes in each regulation.
Not every paragraph of every current part 3 section regarding the
subject matter of this rulemaking is accounted for in the table. In
some instances, other portions of the part 3 sections that are
contained in these proposed regulations appear in subparts of part 5
that are being published separately for public comment. For example, a
reader might find a reference to paragraph (a) of a part 3 section in
the table, but no reference to paragraph (b) of that section because
paragraph (b) will be addressed in a separate NPRM. The table also does
not include provisions from part 3 regulations that will not be carried
forward to part 5. Such provisions are discussed specifically under the
appropriate part 5 heading in this preamble. Readers are invited to
comment on the proposed part 5 provisions and on our proposals to omit
those part 3 provisions from part 5.
Content of Proposed Regulations
Special Monthly Compensation
5.320 Determining Need for Regular Aid and Attendance
Proposed Sec. 5.320 is derived primarily from current Sec.
3.352(a). Although Sec. 3.352(a) by its terms applies only to
determinations of the need for regular aid and attendance under Sec.
3.351(c)(3) (increased DIC based on need for aid and attendance), in
practice VA applies Sec. 3.352(a) as the general criteria for
determining the need for regular aid and attendance in every context
for which benefits are premised on such a need and administered under
part 3. This is reflected in part by the reference to the Sec.
3.352(a) criteria in Sec. 3.351(c)(3), which applies to a veteran,
spouse, surviving spouse, or parent, and in Sec. 3.350(b)(3), which
refers to Sec. 3.352(a) for the criteria to determine whether a
veteran qualifies for special monthly compensation (SMC) based on the
need for regular aid and attendance. In part 5, we would explicitly
make these criteria generally applicable to all determinations of the
need for regular aid and attendance, and, in so doing, will simplify
and clarify the criteria.
Current Sec. 3.351(b) uses the term ``helpless'' to mean requiring
``the regular aid and attendance of another person,'' but the Veterans'
Housing Opportunity and Benefits Improvement Act of 2006 amended
certain sections of title 38, United States Code, to replace the term
``helpless'' with the term ``significantly disabled'' (and similar
terminology) when describing veterans, dependents, or survivors who
need regular aid and attendance benefits. See Public Law 109-233, sec.
502, 120 Stat. 398, 415 (June 15, 2006). Despite the change in
terminology, the Act did not make any substantive change to title 38.
See Explanatory Statement on Amendment to Senate Bill, S. 1235, as
amended, 152 Cong. Rec. H2976, H2978 (daily ed. May 22, 2006). The
proposed part 5 criteria for needing regular aid and attendance,
however, would not reference the statutory requirement that a person be
``helpless'' or ``so significantly disabled'' as to regularly need aid
and attendance. The statutory term serves in Sec. 3.352(a) as the
basis for the application of the various criteria that can serve as the
basis for a finding that an individual is in need of regular aid and
attendance, which would be listed in proposed Sec. 5.320(a)(1)-(6).
But those criteria clearly apply only if a person is disabled and, as a
result, the reference to being ``so significantly disabled'' is
superfluous. We would, instead, simply state that a person needs
regular aid and attendance if that person is unable to perform the
functions listed in paragraphs (a)(1)-(6).
In addition, current Sec. 3.351(b) uses the term ``require''
rather than ``need'' regular aid and attendance. We propose to use
``need'' in proposed part 5. The words ``need'' and ``require'' have
identical meanings, but part 3 uses ``need'' more than 60 times when
referring to regular aid and attendance, but uses ``require'' only five
times. In the authorizing statutes, 38 U.S.C. 1114(l) uses the phrase
``in need of regular aid and attendance'', while 38 U.S.C. 1115(1)(E)
and 1502(b) use ``need or require the regular aid and attendance.'' The
word ``need'' is perfectly clear, and more easily understood than
``require'' or ``need or require,'' and using the word ``need'' will
not result in any substantive difference between parts 3 and 5.
We would also omit the phrase ``of another person.'' In current
part 3, the phrase inconsistently appears after ``aid and attendance.''
It is in current Sec. Sec. 3.25(e) and 3.351(b), but not in Sec. Sec.
3.350, 3.351(c), or 3.352. The statutes authorizing benefits based on
needing ``regular aid and attendance'' do not consistently use the
phrase ``of another person.'' Compare, e.g., 38 U.S.C. 1114(l), (m),
(r) (not using ``of another person''), with 38 U.S.C. 1115(1)(E) (using
``of another person''). All of the criteria for determining need for
aid and attendance listed in Sec. 3.352, ``Criteria for determining
aid and attendance and `permanently bedridden,''' concern tasks that
must be done by someone other than the person needing aid and
attendance. Therefore, the phrase ``of another person'' is unnecessary.
In proposed Sec. 5.320(a) we would specifically note that the need
for regular aid and attendance need not be permanent. There is no
express statutory requirement that a person's need for regular aid and
attendance is permanent in nature, and the proposed rule is consistent
with the current regulation. Indeed, to impose a ``permanent''
requirement might conflict with 38 U.S.C. 1114(l), which distinguishes
a veteran's need for regular aid and attendance from a veteran being
``permanently bedridden,'' as further explained later in this NPRM.
As noted above, proposed Sec. 5.320(a)(1)-(6) would set forth the
basic criteria to establish the need for regular aid and attendance,
which are derived from current Sec. 3.352(a). The language describing
the criteria in the proposed paragraph is plainer and more modern than
that of the current regulation, but there are no substantive
differences. In particular, current
[[Page 62008]]
Sec. 3.352(a), ``Basic criteria for regular aid and attendance and
permanently bedridden,'' specifies that ``physical or mental''
incapacity necessitates assistance in protecting ``the claimant from
hazards or dangers incident to his or her daily environment.'' In the
proposed rule, we have omitted the phrase ``physical or mental.'' The
term ``incapacity'' needs no such qualification because the only
possible incapacitating causes of a person's inability to avoid hazards
or dangers are physical or mental. Thus, the phrase ``physical or
mental'' is superfluous.
Proposed Sec. 5.320(b) reflects VA's policy to consider a person
who is bedridden to also be a person who needs regular aid and
attendance. Although the title of current Sec. 3.352 and the caption
to Sec. 3.352(a) refer to the term ``permanently bedridden,'' the text
of Sec. 3.352(a) describes ``bedridden'' status without such
qualification. Indeed, 38 U.S.C. 1114(l) contains the sole statutory
requirement that a veteran be ``permanently bedridden,'' stating that a
veteran is eligible for special monthly compensation at the rate set
forth in section 1114(l) if the veteran ``is permanently bedridden or
with such significant disabilities as to be in need of regular aid and
attendance.'' That requirement would be covered by Sec. 5.324(d).
Thus, proposed Sec. 5.320(b) implements the general statutory
criterion, appearing in several places in title 38, United States Code,
that a person who is so significantly disabled as to need regular aid
and attendance is entitled to certain VA benefits. It is reasonable to
assume that a person who is bedridden due to disability has such need.
Therefore, proposed part 5, like part 3, would consider a person who is
bedridden to be one who needs regular aid and attendance.
Proposed Sec. 5.320(b) is based on the rules governing
``bedridden'' determinations under current Sec. 3.352(a). Current
Sec. 3.352(a) includes a statement that having ``voluntarily taken to
bed'' would not support a finding of bedridden status. We propose to
reword this requirement by stating that the person ``must remain in bed
due to his or her disability or disabilities,'' thus eliminating the
possibility that voluntary bed rest could qualify. We would add that
the bed rest must be based on medical necessity, but clarify that such
necessity cannot be for convalescence or cure. These statements are
consistent with the current rule and will not lead to a different
result in cases adjudicated under part 5.
The last two sentences of Sec. 3.352(a) state, ``Determinations
that the veteran is so helpless, [sic] as to be in need of regular aid
and attendance will not be based solely upon an opinion that the
claimant's condition is such as would require him or her to be in bed.
They must be based on the actual requirement of personal assistance
from others.'' Because the proposed regulation makes clear that a
person who is bedridden also is in need of aid and attendance, we will
not repeat these sentences in part 5.
5.321 Additional Compensation for Veteran Whose Spouse Needs Regular
Aid and Attendance
Current Sec. 3.351(a)(2) states that a veteran in receipt of
disability compensation may be eligible for increased compensation if
he or she has a spouse who is in need of regular aid and attendance.
The authorizing statute, 38 U.S.C. 1115, requires a veteran to be
entitled to disability compensation and to have a disability rating of
not less than 30 percent to qualify for this additional benefit. We
propose to include this language in Sec. 5.321(a) because it reflects
the current statutory criteria and will help readers locate the
eligibility requirements.
Current Sec. 3.351(c) contains the general criteria for
determining whether a dependent spouse needs regular aid and
attendance. We propose to reorganize these criteria in proposed Sec.
5.321(b) and (c). Proposed paragraph (b) would be titled ``Automatic
eligibility''; it would explain that a spouse would be found to be in
need of regular aid and attendance if he or she is blind or has a
serious visual impairment or is a patient in a nursing home due to
mental or physical incapacity. Proposed paragraph (c) would be entitled
``Factual need''; it would state the principle found in current
paragraph (c)(3) that a spouse will be considered in need of regular
aid and attendance if a factual need is shown under proposed Sec.
5.320.
Under current Sec. 3.351(c), a ``spouse * * * will be considered
in need of regular aid and attendance if he or she: (1) Is blind or so
nearly blind as to have corrected visual acuity of 5/200 or less, in
both eyes, or concentric contraction of the visual field to 5 degrees
or less.'' Although not stated explicitly, it is long-standing VA
practice to require that the concentric contraction be bilateral. The
1945 Schedule for Rating Disabilities states, ``With visual acuity 5/
200 or less or the visual field reduced to 5 degrees contraction, in
either event in both eyes, the question of entitlement on account of
regular aid and attendance will be determined on the facts in the
individual case.'' 1945 Rating Schedule, page 53-54, para.10 (4/1/1946)
(emphasis added); see also 38 CFR 4.79 (substantially the same).
Requiring bilateral concentric contraction of the visual field to 5
degrees bilaterally implements the ``so nearly blind'' criterion of
need for regular aid and attendance in the authorizing statute. See 38
U.S.C. 1115(1)(E). The current VA rating schedule rates unilateral
concentric contraction of the visual field to 5 degrees as 30 percent
disabling; bilateral concentric contraction of the visual field to 5
degrees is rated 100 percent disabling. 38 CFR 4.84a, diagnostic code
6080 (2007). These rating criteria demonstrate that unilateral
contraction of the visual field to 5 degrees cannot rationally be
considered ``so nearly blind'' as to need regular aid and attendance
within the meaning of 38 U.S.C. 1115(1)(E). Although Sec. 4.79 and
diagnostic code 6080 apply to rating the vision of veterans, there is
no rational basis to construe the criterion ``so nearly blind''
differently for veterans and for their spouses. Hence, we propose to
clarify that the concentric contraction criterion applies to both eyes.
Stating the visual field criterion of the need as bilateral in proposed
Sec. 5.321(b) merely states current VA practice explicitly. It makes
no substantive change.
We propose to cite 38 U.S.C. 1115 as the authority for proposed
Sec. 5.321, to show the actual authority for the criteria for need of
a spouse for regular aid and attendance, especially regarding the
nursing home and the blindness criteria. The authority citation for
current Sec. 3.351(c), is stated as 38 U.S.C. 1502(b), but this is
incomplete. Section 1502(b) is the authority for those criteria in the
context of pension. Section 1115(1)(E) authorizes special monthly
compensation to a veteran with a spouse who needs regular aid and
attendance. Hence, we have cited section 1115 as authority for proposed
Sec. 5.321.
The criteria to establish a dependent spouse's need for regular aid
and attendance for purposes of a veteran's entitlement to additional
compensation, set forth in 38 U.S.C. 1115(1)(E), include that the
spouse be ``blind, or so nearly blind or significantly disabled as to
need or require the regular aid and attendance of another person.''
However, the implementing regulation, 38 CFR Sec. 3.351(c)(1), defines
``blind or so nearly blind'' as ``to have corrected visual acuity of 5/
200 or less, in both eyes, or concentric contraction of the visual
field to 5 degrees or less.'' These criteria are similar to the
criteria in 38 U.S.C. 1114(l), which provides special monthly
compensation to a veteran with such visual disability.
[[Page 62009]]
We note that it has been VA's longstanding practice to apply these
criteria. The ``Veterans Disability Compensation and Survivor Benefits
Act of 1976,'' Public Law 94-433, sec. 102, 90 Stat. 1375 (Sep. 30,
1976), authorized VA to provide additional compensation to veterans
whose spouses needed regular aid and attendance, and that legislation
was the source of what is now 38 U.S.C. 1115(1)(E). In 1976, VA amended
Sec. 3.351(a) to authorize such additional compensation. 41 FR 55872,
55874 (Dec. 23, 1976); VA Transmittal Sheet 617 (Oct. 1, 1967).
However, the criteria for blindness, 5/200 visual acuity or 5 degrees
concentric contraction of the visual field, remained unchanged. In
light of VA's consistent, long-standing use of these criteria in this
context, we propose to use the criteria in Sec. 5.321.
In promulgating Sec. 3.351(c)(1), VA adopted these more specific
criteria, rather than the vague and difficult-to-apply criteria in 38
U.S.C. 1115(1)(E), because they are more objective and easier to apply.
Moreover, this definition of ``blind or so nearly blind'' does not
limit the veteran's entitlement to additional compensation under
section 1115(1)(E), because Sec. 5.321(c) allows the spouse to be
considered in need of regular aid and attendance based on the facts in
the individual case, regardless of his or her vision. This provision
implements the language in 38 U.S.C. 1115(1)(E) that authorizes VA to
pay such additional compensation when the veteran's spouse is ``so * *
* significantly disabled as to need or require the regular aid and
attendance of another person.''
5.322 Special Monthly Compensation--General Information and Definitions
of Disabilities
Proposed Sec. 5.322 would define disabilities that establish
entitlement to SMC under the sections that follow that are not defined
in those sections. Proposed paragraph (a) states that SMC is available
for veterans who need regular aid and attendance, are bedridden, suffer
certain service-connected disabilities or combinations of disabilities
(considering also certain nonservice-connected disabilities in
determining entitlement to certain SMC rates), or have a spouse who
needs regular aid and attendance. The paragraph identifies by cross
reference the regulations that address the potential contribution of a
nonservice-connected disability to entitlement to SMC. This paragraph
also informs the user where and how to find the monetary rates of SMC.
Proposed paragraphs (b) through (g) would consolidate principles
that apply to establishing particular levels of compensation throughout
current Sec. 3.350. By consolidating these principles in proposed
Sec. 5.322 and, thereafter, referencing the particular paragraph where
applicable, it will be easier for readers to find specific rules.
Title 38, United States Code, provides SMC for ``anatomical loss or
loss of use of'' certain body parts. 38 U.S.C. 1114(k)-(p). Current
Sec. 3.350 variously uses the phrases ``anatomical loss or loss of use
[of the named body part]'' and ``loss or loss of use [of the named body
part].'' These phrases mean the same thing. Where Sec. 3.350 uses
``loss of [a named body part]'', as contrasted with ``loss of use of [a
named body part],'' ``loss of'' means anatomical loss, consistent with
their statutory derivation. Compare, e.g., 38 U.S.C. 1114(k)
(``anatomical loss or loss of use of one or more creative organs'')
with Sec. 3.350(a)(1)(i) (``Loss of a creative organ will be shown by
acquired absence of one or both testicles * * * ovaries or other
creative organ''). For consistency within part 5, we propose to use
``anatomical loss or loss of use [of the named body part]'' and
``anatomical loss [of the named body part]'' throughout part 5.
We propose to define the loss of use of a hand or a foot at
proposed Sec. 5.322 paragraphs (b) and (c), respectively. These
definitions are derived from current Sec. 3.350(a)(2). Current Sec.
3.350(a)(2)(i)(a) [sic] refers to ``complete ankylosis of two major
joints of an extremity,'' but does not define ``major joints.'' VA has
defined the major joints in 38 CFR 4.45(f), and we propose to
incorporate this definition into paragraphs (b) and (c) regarding the
upper and lower extremity, respectively, as an aid to readers. Current
Sec. 3.350(a)(2)(i)(a) [sic] also refers to ``[e]xtremely unfavorable
complete ankylosis of the knee'' without defining this term. VA has
defined extremely unfavorable ankylosis of the knee in 38 4.71a,
Diagnostic Code 5256, and we propose to incorporate this definition
into paragraph (c)(1) as an aid to readers.
Current Sec. 3.350(a)(2)(i) states the amount of function of a
hand or foot of which there is loss of use as follows: ``Loss of use of
a hand or a foot will be held to exist when no effective function
remains other than that which would be equally well served by an
amputation stump * * * with use of a suitable prosthetic appliance.''
This means the function of the hand or foot is less than or equal to
the function of a prosthesis attached to the amputation stump. Proposed
Sec. 5.322(b) and (c) have restated the extent of function that
qualifies as loss of use of a hand or foot, respectively, as
``functions no better than a prosthesis would function if attached to
the [arm or leg] at a point of amputation below the [elbow or knee].''
``[F]unctions no better than'' means the same thing as ``no effective
function remains other than that which would be equally well served
by.'' No substantive change is intended.
Proposed Sec. 5.322(d) is based on current Sec. 3.350(c)(2). The
first sentence of current Sec. 3.350(c)(2) states that in determining
whether there is natural elbow or knee action for purposes of Sec.
3.350(c)(1)(ii) and (iii), VA will consider whether use of the proper
prosthetic appliance requires natural use of the joint or whether
necessary motion is otherwise controlled, in that the muscles affecting
joint motion, if not already atrophied, will become so. In proposed
Sec. 5.322(d), we would explain the effect of VA's consideration of
whether the veteran is able to use a prosthesis that requires the
natural use of the elbow or knee joint. The regulation explains that
natural elbow or knee action is prevented when a prosthesis is in place
if the veteran is unable to use a prosthesis that requires the natural
use of the elbow or knee joint, or if the veteran is unable to move
such a joint, as in complete ankylosis or complete paralysis. In order
to simplify the rule, we propose not to repeat that VA will consider
whether when using a proper prosthesis necessary motion is controlled
by means other than natural use of the joint so that the muscles
affecting joint motion, if not already atrophied, will become so. This
language is not contained in 38 U.S.C. 1114 and does not aid in
determining whether use of a prosthesis prevents natural elbow or knee
action with a prosthesis in place.
Current Sec. 3.350(c)(2) refers to ``no movement in the joint, as
in ankylosis or complete paralysis.'' In proposed Sec. 5.322(d), we
have inserted the word ``complete'' before ``ankylosis'' to clarify the
intent of the current rule that the ankylosis must be complete.
Proposed Sec. 5.322(e) is derived from current Sec. 3.350(d). VA
will consider a veteran prevented from wearing a prosthesis due to
amputation of an extremity (arm or leg) near the shoulder or hip if the
anatomical loss prevents the use of a prosthesis, and reamputation at a
higher level that permits the use of a prosthesis is not possible. If a
prosthesis cannot be worn at the present level of amputation but could
be worn if there were a reamputation at a higher level, VA will
[[Page 62010]]
consider the veteran not to have an anatomical loss of the extremity
(arm or leg) so near the shoulder or hip as to qualify for SMC under 38
U.S.C. 1114(n). Instead, VA will consider the veteran eligible only for
SMC based on anatomical loss or loss of use of the arm at a level, or
with complications, preventing natural elbow action with a prosthesis
in place.
We note that, like current Sec. 3.350(d), Sec. 3.350(f) requires
anatomical loss of the leg or arm so near the hip or shoulder as to
prevent the use of prosthetic appliance. We propose to make Sec. 5.322
applicable to the part 5 counterparts to these provisions as well,
instead of limiting its application to the counterparts of Sec.
3.350(d), in an effort to ensure consistent use and application of
terminology and promote consistency in VA decisionmaking.
Proposed Sec. 5.322(f) is consistent with the second sentence of
current Sec. 3.350(b)(2). The rule bars payment of SMC to a veteran
who has actual visual acuity better than 5/200 but is nevertheless
assigned a disability rating based on visual acuity of 5/200. The
rating schedule for impaired visual acuity, 38 CFR 4.84a, Table V,
provides for rating based on impaired visual acuity of 5/200 to
veterans with impaired visual acuity ranging between 5/200 and more
than 10/200. See 38 CFR 4.83. However, SMC under 38 U.S.C. 1114 is
available only to a veteran with visual acuity of 5/200 or less.
Therefore, proposed Sec. 5.322(f), like current Sec. 3.350(b)(2),
requires adjudicators to ascertain that a veteran in receipt of
disability compensation based on visual acuity of 5/200 actually
suffers from impaired visual acuity of 5/200 or less.
We propose to include the definition of loss of use or blindness of
an eye, having only light perception, at proposed Sec. 5.322(g). This
definition is derived from current Sec. 3.350(a)(4). We propose to
restate ``considered of negligible utility'' contained in current Sec.
3.350(a)(4) as ``considered insignificant usefulness of sight'' in
Sec. 5.322(g). Readers might misinterpret ``considered of negligible
utility'' in the current regulation as meaning that a report showing
visual acuity difficulties at distances less than 3 feet would make the
result of the visual examination not useful in determining entitlement
to SMC. The words ``negligible utility'' means insignificant usefulness
of sight. The proposed restatement will make clear that the regulation
refers to the disabling nature of a veteran's visual acuity and not to
the evidentiary weight of a visual examination report.
5.323 Special Monthly Compensation Under 38 U.S.C. 1114(k)
Proposed Sec. 5.323 is derived from current Sec. 3.350(a). The
proposed regulation would be titled ``Special monthly compensation
under 38 U.S.C. 1114(k).''
In Sec. 5.323(a)(8), we have clarified that treatment of breast
tissue with radiation does not include diagnostic procedures that
require the use of radiation. We do not believe that Congress intended
to include diagnostic procedures such as a mammogram or other x-ray
examination as a basis for compensation under 38 U.S.C. 1114(k),
because such examinations are routinely performed.
Proposed Sec. 5.323(b) is derived from the remaining three
sentences in current Sec. 3.350(a).
Proposed Sec. 5.323(c) is derived from current Sec. 3.350(a)(1).
Proposed Sec. 5.323(c)(1) defines a ``creative organ'' as an organ
directly involved in reproduction. In VAOPGCPREC 2-2000, 65 FR 33422
(May 23, 2000), VA's General Counsel noted that the term ``creative
organ'' is not defined in 38 U.S.C. 1114(k), nor in any other provision
of title 38, United States Code. It is unique to section 1114(k) and is
used in current Sec. 3.350(a)(1) without definition. After examining
the issue, the General Counsel determined that by using the term
``creative organ'' Congress meant procreative, or reproductive, organs.
The proposed definition is consistent with VAOPGCPREC 2-2000.
Proposed Sec. 5.323(c)(2) restates the first sentence of current
Sec. 3.350(a)(1)(i). The second sentence of current Sec.
3.350(a)(1)(i) is restated in proposed Sec. 5.323(c)(3)(i) through
(iii).
Current 38 CFR 3.350(a)(1)(i)(c) states that loss of use of a
creative organ may be shown ``when a biopsy, recommended by a board
including a genitourologist and accepted by the veteran, establishes
the absence of spermatozoa.'' We propose to use somewhat different
language in Sec. 5.323(c)(3)(iii) as follows: ``Absence of spermatozoa
proven by biopsy performed with the informed consent of the veteran.''
We note that the reference to ``a board'' in the current rule relates
to VA's former procedure of having a board of three VA employees
(including a physician) adjudicate claims. Because this is no longer
VA's procedure, and because any physician or VA adjudicator may order a
biopsy, we propose not to include that reference in Sec.
5.323(c)(3)(iii). The phrase ``accepted by the veteran'' might be
misconstrued to mean that a veteran may accept or reject biopsy
results. The intent of Sec. 3.350(a)(1)(i)(c) was to clarify that
undergoing a biopsy is voluntary and requires the veteran's informed
consent.
Proposed Sec. 5.323(c)(3)(iv) is a new provision that states that
loss of use of a creative organ exists when medical evidence shows
that, due to injury or disease, reproduction is not possible without
medical intervention. Although essentially the definition of loss of
use, this provision is based on VA's long-standing policy of awarding
SMC if the medical evidence of record shows the loss of erectile power
secondary to a disease process such as diabetes or multiple sclerosis
in a male veteran or a condition of the reproductive tract, such as
retrograde ejaculation or spermatozoa dumping into the bladder in a
male veteran or the removal of a fallopian tube in a female veteran,
that results in the loss of use of a creative organ.
We also propose to include in Sec. 5.323(c)(3)(iv)(A) a statement
reflecting long-standing VA policy that would allow for the award of
SMC under 38 U.S.C. 1114(k) for the anatomical loss or loss of use of a
creative organ even when one paired creative organ is capable of
reproduction and the other is not. Both 38 U.S.C. 1114(k) and 38 CFR
3.350(a) are silent regarding this type of medical condition. Adding
this rule to the proposed regulation is beneficial to veterans.
In Sec. 5.323(c)(4), we propose to state that payment of SMC would
be proper under 38 U.S.C. 1114(k) for loss of use of a creative organ
even in instances when a veteran uses prescription medications or
mechanical devices to treat erectile dysfunction. Veterans should not
be prevented from receiving SMC when they are receiving treatment that
corrects an otherwise compensable condition to some degree,
particularly since the improvement in the condition may only be partial
and because the loss of use may return when the treatment is suspended.
In Sec. 5.323(c)(5), we propose to state clearly that SMC under 38
U.S.C. 1114(k) would be payable for a service-connected anatomical loss
of a creative organ even if it is preceded by a nonservice-connected
loss of use of that same organ. In addition, in proposed Sec.
5.323(c)(5)(i) through (iv), we have included examples illustrating
this principle. SMC should be granted even if the veteran was first
unable to procreate for nonservice-connected reasons. Congress has
provided two bases for SMC, anatomical loss or loss of use.
Compensation for service-connected anatomical loss is authorized even
though there was a preexisting,
[[Page 62011]]
nonservice-connected loss of use. See VAOPGCPREC 5-89, 54 FR 38033
(Sept. 14, 1989). According to the legislative history of 38 U.S.C.
1114(k), the purpose of SMC for anatomical loss or loss of use of a
creative organ is to account for psychological factors as well as the
loss of physical integrity. See id. Even where a veteran has previously
suffered the anatomical loss of certain creative organs that results in
the loss of use of the remaining creative organs, the psychological
impact and the loss of physical integrity resulting from the later
anatomical loss of one of the remaining organs cannot be ignored. An
award of SMC under these circumstances is consistent with the terms of
the statute and precedent opinions by VA's General Counsel. See
VAOPGCPREC 93-90, 56 FR 1220 (Jan. 11, 1991).
Proposed Sec. 5.323(c)(6) and (7) are derived from current Sec.
3.350(a)(1)(iii) and (iv) respectively. We propose not to repeat the
specific language from Sec. 3.350(a)(1)(ii) in part 5. Current Sec.
3.350(a)(1)(ii) addresses the issue of establishing service connection
for ``loss or loss of use'' of a creative organ resulting from wounds
or other trauma sustained in service or resulting from operations in
service for the relief of other conditions for which the creative organ
becomes incidentally involved. This provision is redundant of the basic
principles for establishing service connection for a disability, which
are contained in current Sec. 3.303 and which the eventual part 5
counterpart to that regulation will address.
Current 38 CFR 3.350(a)(1)(iv) states:
Atrophy resulting from mumps followed by orchitis in service is
service connected. Since atrophy is usually perceptible within 1 to
6 months after infection subsides, an examination more than 6 months
after the subsidence of orchitis demonstrating a normal
genitourinary system will be considered in determining rebuttal of
service incurrence of atrophy later demonstrated. Mumps not followed
by orchitis in service will not suffice as the antecedent cause of
subsequent atrophy for the purpose of authorizing the benefit.
In proposed Sec. 5.323(c)(7), we explicitly state the presumption
implicit in the current rule, Sec. 3.350(a)(1)(iv), by using the word
``presumed.'' We also propose not to repeat the third sentence of Sec.
3.350(a)(1)(iv) because it is redundant.
In proposed Sec. 5.323(d), we would define loss of use of the
buttocks. This definition is derived from current Sec. 3.350(a)(3).
In proposed Sec. 5.323(e) and (f), we would define deafness and
aphonia. These definitions are derived from current Sec. 3.350(a)(5)
and (6), respectively.
5.324 Special Monthly Compensation under 38 U.S.C. 1114(l)
Proposed Sec. 5.324 is derived from current Sec. 3.350(b). (Note
that the part 5 counterpart to the second sentence of current Sec.
3.350(b)(2) is contained at proposed Sec. 5.322(f), discussed above.)
In proposed Sec. 5.324(a) and (b) we refer only to hands and feet,
not to ``extremities.'' Although current Sec. 3.350(b)(1), refers to
loss of use of an extremity, the context clearly indicates that
``extremity'' refers only to a hand or foot. Section 3.350(a) only
discusses the loss of use of hands or feet and current Sec.
3.350(a)(2), which is referred to in Sec. 3.350(b)(1), only pertains
to loss of use of a hand or foot.
Section 1114(l) of title 38 of the United States Code provides for
special monthly compensation (SMC) if a veteran is ``permanently
bedridden.'' Current Sec. 3.350(b)(4) implements this rule by
referring the reader to the criteria in current Sec. 3.352(a);
however, but for its title, Sec. 3.352(a) defines ``bedridden''
without requiring permanence. It makes sense to define ``permanently
bedridden'' in proposed Sec. 5.324, among the criteria for the benefit
authorized by section 1114(l), because that is the only statute that
contains such a criterion.
For proposed Sec. 5.324, we would adapt the language of other
current part 3 regulations that require permanence of a condition as a
criterion of entitlement to a benefit. Part 3 contains three sections
that characterize permanence of a condition. Section 3.350(i)(2) states
that a veteran is permanently housebound because of service-connected
disability or disabilities when he or she ``is substantially confined
as a direct result of service-connected disabilities to his or her
dwelling and the immediate premises or, if institutionalized, to the
ward or clinical areas, and it is reasonably certain that the
disability or disabilities and resultant confinement will continue
throughout his or her lifetime.'' Section 3.351(d)(2), (e), and (f)
state requirements for Improved Disability Pension, DIC, and Improved
Death Pension, respectively, in substantially the same language.
Section 3.340(b) states, ``Permanence of total disability will be
taken to exist when such impairment is reasonably certain to continue
throughout the life of the disabled person. * * * [B]ecoming
permanently * * * bedridden constitutes permanent total disability.''
In Sec. 3.340(b), VA explicitly equates ``permanently bedridden'' with
``permanence of total disability.'' In each of these sections,
permanence is characterized by the continuance of the condition
described throughout the life of the person concerned.
Proposed Sec. 5.324(d) would authorize special monthly
compensation to a veteran whose service-connected disability or
disabilities require him or her to remain in bed, ``and it is
reasonably certain that the confinement to bed will continue throughout
his or her lifetime.'' This definition is simple, easy to apply, and
consistent with VA's definitions of permanence in other similar
regulations.
Paragraphs (d) and (e) of proposed Sec. 5.324 are derived from
current Sec. 3.350(b)(4) and (3), respectively. Though this reverses
the order of the ``Need for aid and attendance'' and the ``Permanently
bedridden'' paragraphs in Sec. 3.350, we have chosen to follow the
sequence of these criteria in section 1114(l). Unless the veteran would
be entitled to an additional allowance under 38 U.S.C. 1114(r) (see
Sec. 5.332), it is more favorable to the veteran to base a grant of
SMC under 38 U.S.C. 1114(l) on permanently bedridden status rather than
the need for regular aid and attendance because SMC based on the need
for regular aid and attendance might be reduced during hospitalization
(see Sec. 3.552). In the current regulation, this information is
contained in Sec. 3.350(b)(4), which pertains to permanently bedridden
status. However, we provide the information to instruct VA personnel to
consider whether a veteran is permanently bedridden if the veteran
meets the requirements of the need for regular aid and attendance. We
anticipate that it will be more helpful to VA personnel and other
readers to place this information in proposed Sec. 5.324(e), which
pertains to the need for regular aid and attendance. Furthermore, we
have made the rule mandatory by changing ``should'' to ``will,'' to
avoid confusion about whether or when to apply it.
5.325 Special Monthly Compensation at the Intermediate Rate Between 38
U.S.C. 1114(l) and (m)
Proposed Sec. 5.325 is derived from those provisions in current
Sec. 3.350(f)--specifically Sec. 3.350(f)(1)(i), (iii), and (vi) and
Sec. 3.350(f)(2)(i)--that provide for entitlement to SMC at the
intermediate rate between the rates established under 38 U.S.C. 1114(l)
and (m). The statutory authority for Sec. 5.325 would be 38 U.S.C.
1114(p). The introductory paragraph of proposed Sec. 5.325 clarifies
current Sec. 3.350(f) as it pertains to rounding to the nearest dollar
the intermediate rate between 38 U.S.C. 1114(l) and (m). The
[[Page 62012]]
current rule, Sec. 3.350(f), requires VA to round ``to the nearest
dollar.'' We propose to clarify the rule so that it requires VA to
round ``down to the next lower dollar.'' This accords with the
statutory requirement to round ``down to the nearest dollar.'' 38
U.S.C. 1114(p). We have clarified the same point in Sec. Sec. 5.327,
5.329, and 5.331, which relate to other SMC awards.
Proposed Sec. 5.325(d) is based on current Sec. 3.350(f)(2)(i).
We propose to add concentric contraction of the visual field reduced to
5 degrees or less as an equivalent alternative to 5/200 visual acuity
contained in the current regulation. Current Sec. 3.350(b)(2) provides
the basis for treating visual acuity of 5/200 and a concentric
contraction reduced to 5 degrees or less as equally disabling. Because
the provisions of Sec. 3.350 will be divided in part 5, we propose to
apply this principle wherever it is applicable in the proposed
regulations.
5.326 Special Monthly Compensation Under 38 U.S.C. 1114(m)
Proposed Sec. 5.326 is derived in part from current Sec.
3.350(c). It is also derived from those provisions in current Sec.
3.350(f)--specifically Sec. 3.350(f)(1)(ii), (iv), and (viii) and
Sec. 3.350(f)(2)(ii)--that provide for entitlement to SMC at the rate
authorized by 38 U.S.C. 1114(m).
Proposed Sec. 5.326(a) is based on current Sec. 3.350(c)(1)(i).
To determine the loss of use of a hand, we have added a cross reference
to proposed Sec. 5.322, which contains the part 5 counterpart to
current Sec. 3.350(a)(2). The criteria contained in Sec. 3.350(a)(2)
are used in the current regulations to determine loss of use of a hand
as a basis for SMC under 38 U.S.C. 1114(k) and (l). It is VA's long-
standing practice to determine loss of use of a hand as a basis for SMC
under 38 U.S.C. 1114(m) using the same criteria. This practice ensures
consistent use and application of terminology, which will promote
consistency in VA decision-making.
Proposed Sec. 5.326(c) is based on current Sec. 3.350(f)(1)(ii).
Where the current regulation states, ``Anatomical loss or loss of use
of one foot with anatomical loss of one leg so near the hip as to
prevent use of prosthetic appliance. * * *'', proposed paragraph (c)
would state, ``* * * with anatomical loss of the other leg * * *.'' VA
interprets section 1114(m) to mean the anatomical loss or loss of use
of the foot and the anatomical loss of the leg described in this
section must involve opposite limbs. Once a leg is lost, the foot on
that leg is also lost. Statute and regulation already provide SMC for
the anatomical loss or loss of use of a single foot, 38 U.S.C 1114(k);
Sec. 3.350(a)(2), and for the anatomical loss or loss of use of both
feet. 38 U.S.C. 1114; 38 CFR 3.350(b). It would compensate the veteran
twice for the same disability to permit SMC for anatomical loss of a
leg so near the hip as to prevent use of a prosthetic appliance and
anatomical loss or loss of use of the foot of the same leg. VA believes
that Congress did not intend such a result.
Proposed Sec. 5.326(i) is based on current Sec. 3.350(c)(1)(v),
(c)(3), and Sec. 4.79 of this chapter. For the reasons stated in the
preamble to proposed Sec. 5.320(a), above, we have used the phrase
``need regular aid and attendance'' instead of ``helpless'' in Sec.
5.326. We have combined sections 3.350(c)(1)(v) and 3.350(c)(3) in
proposed Sec. 5.326(i) because Sec. 3.350(c)(3) states how VA applies
Sec. 3.350(c)(1)(v) when the veteran's visual acuity in both eyes is
5/200 or the visual field in both eyes is reduced to 5 degrees
concentric contraction. Section 3.350(c)(3) mandates that if the
veteran's visual acuity in both eyes is 5/200 or the visual field in
both eyes is reduced to 5 degrees concentric contraction, VA will
examine the facts in the individual case to determine whether the
veteran's vision makes the veteran need regular aid and attendance.
Proposed Sec. 5.326(i) also clarifies by cross reference that VA will
apply the criteria found at Sec. 5.320 in determining whether a
veteran needs regular aid and attendance. Whereas current Sec.
3.350(c)(3) only states that the need for regular aid and attendance
will be determined on the facts in the individual case, the language in
Sec. 5.326(i) notifies veterans and VA personnel of the specific
criteria. The use of these criteria ensures consistent use and
application of terminology, which will promote consistency in VA
decision-making. The application of the criteria for the need for
regular aid and attendance in Sec. 5.320 to claims for SMC under 38
U.S.C. 1114(m) is consistent with current VA practice and, therefore,
the explicit reference to these criteria does not constitute a change
from the current regulation.
5.327 Special Monthly Compensation at the Intermediate Rate Between 38
U.S.C. 1114(m) and (n)
Proposed Sec. 5.327 is derived from those provisions in current
Sec. 3.350(f)--specifically Sec. 3.350(f)(1)(v), (vii), (ix), and (x)
and Sec. 3.350(f)(2)(iii)--that provide for entitlement to SMC at the
intermediate rate between 38 U.S.C. 1114(m) and (n) for specified
disabilities. The statutory authority for the provisions is 38 U.S.C.
1114(p). Paragraphs (a) and (b), the counterparts of Sec.
3.350(f)(1)(x) and (f)(1)(v), respectively, would require the
involvement of opposite limbs, as described in the discussion of Sec.
5.326(c), above, for the same reasons discussed above. That is,
proposed paragraph (a) provides the stated benefit for ``[a]natomical
loss or loss of use of one hand with anatomical loss or loss of use of
the other arm.'' Proposed paragraph (b) provides the stated benefit for
``[a]natomical loss or loss of use of one leg at a level, or with
complications, preventing natural knee action with prosthesis in place
with anatomical loss of the other leg.''
5.328 Special Monthly Compensation Under 38 U.S.C. 1114(n)
Proposed Sec. 5.328 is derived in part from current Sec.
3.350(d). It is also derived from current Sec. 3.350(f)(1)(xi) which
provides for entitlement to SMC at the rate authorized by 38 U.S.C.
1114(n). Proposed Sec. 5.328(a) applies the concepts contained in
current Sec. 3.350(c)(2) pertaining to natural elbow action and SMC
under 38 U.S.C. 1114(m) pertaining to SMC under 38 U.S.C. 1114(n). The
use of this language in proposed Sec. 5.328(a) ensures consistent use
and application of terminology, which will promote consistency in VA
decision-making.
Proposed Sec. 5.328(b), the counterparts of Sec. 3.350(f)(1)(xi),
would require the involvement of opposite limbs, as described in the
discussion of Sec. 5.326(c), above, for the same reasons discussed
above. That is, proposed paragraph (b) would state, ``Anatomical loss
or loss of use of one hand with anatomical loss of the other arm.''
Current Sec. 3.350(d) states that, ``The special monthly
compensation provided by 38 U.S.C. 1114(n) is payable for any of the
conditions which follow: Amputation is a prerequisite except for loss
of use of both arms and blindness without light perception in both
eyes.'' The statute uses the term ``anatomical loss.'' It does not use
the term ``amputation,'' but the two terms have identical meaning.
Therefore, we have used ``anatomical loss'' rather than ``amputation''
in Sec. 5.328. We have not repeated the sentence of Sec. 3.350(d)
beginning ``Amputation is a prerequisite * * *'' because it is
superfluous. It does not confer any rights or benefits. The paragraphs
that contain the prerequisite of anatomical loss are explicit as to
that requirement. It is not a prerequisite in those paragraphs that do
not require it.
We propose to clarify the rule in current Sec. 3.350(d)(4), which
establishes entitlement under 38 U.S.C. 1114(n) for anatomical loss of
both eyes or blindness without light perception in
[[Page 62013]]
both eyes, by stating in proposed Sec. 5.328(e) that benefits under 38
U.S.C. 1114(n) are available based on ``anatomical loss of one eye and
blindness without light perception in the other eye.'' The current
regulation does not provide for a similar visual disability involving
the anatomical loss of one eye and blindness without light perception
in the other eye. If there is anatomical loss of an eye, there would be
no light perception in that eye. Although current Sec. 3.350(d)(4)
does not explicitly state the basis for entitlement, where there is
anatomical loss of one eye and blindness without light perception in
the other eye, there is also, obviously, no light perception in either
eye. Therefore, entitlement to 38 U.S.C. 1114(n) would be established
under the current rule.
5.329 Special Monthly Compensation at the Intermediate Rate Between 38
U.S.C. 1114(n) and (o)
Proposed Sec. 5.329 is derived from current Sec.
3.350(f)(1)(xii), which provides for entitlement to SMC at the
intermediate rate between 38 U.S.C. 1114(n) and (o) for anatomical loss
or loss of use of one arm at a level, or with complications, preventing
natural elbow action with prosthesis in place and anatomical loss of
the other arm so near the shoulder as to prevent the use of prosthetic
appliance. The statutory authority for this provision is 38 U.S.C.
1114(p).
5.330 Special Monthly Compensation Under 38 U.S.C. 1114(o)
Proposed Sec. 5.330 is derived from current Sec. 3.350(e).
Proposed Sec. 5.330(b) is based on current Sec. 3.350(e)(1)(iii).
Proposed paragraph (b) implements a statutory amendment to 38 U.S.C.
1114(o), the authority for paragraph (b) of this section. Public Law
110-157, sec. 101, 121 Stat. 1831, (Dec. 26, 2007). Specifically, the
statutory amendment changed the visual acuity criterion of section
1114(o) from 5/200 to 20/200. Section 5.330(b) would implement this
statutory change.
Current Sec. 3.350(e)(2) refers to paraplegia and states that
paralysis of both lower extremities with loss of anal and bladder
sphincter control will entitle a veteran to the maximum rate under 38
U.S.C. 1114(o). In Sec. 5.330(d), we propose to substitute the phrase
``loss of use'' for the current term ``paralysis.'' The term
``paralysis'' is not defined for VA purposes. It is a term most
commonly associated with inability to move or have sensation in a body
part as a result of an injury or a disease involving the nervous
system. This is a narrow definition that does not address disabilities
as a result of muscle or bone damage. The phrase ``loss of use'' is
used extensively by VA personnel in rating disabilities involving the
extremities and therefore is an appropriate substitute term. The phrase
``loss of use'' will be clearer to the reader and will ensure that loss
of use will entitle a veteran to this level of SMC.
The basis for an award of SMC at the maximum rate under 38 U.S.C.
1114(o) for a veteran who has loss of anal and bladder sphincter
control together with loss of use of both lower extremities is that
such a veteran is presumed to be in need of regular aid and attendance.
As such, the veteran is entitled to SMC under 38 U.S.C. 1114(l) and
1114(m). A veteran with disabilities entitled to two or more of the
rates provided in 38 U.S.C. 1114(l) through (n) is entitled to
compensation under 38 U.S.C. 1114(o). This basis for entitlement is
restated in proposed Sec. 5.330(d).
We will not repeat Sec. 3.350(e)(4) and the third and fourth
sentences of Sec. 3.350(e)(3). These sentences are redundant of Sec.
3.350(e)(1)(ii), which states that the special monthly compensation
provided by 38 U.S.C. 1114(o) is payable for ``* * * [c]onditions
entitling to two or more of the rates (no condition being considered
twice) provided in 38 U.S.C. 1114(l) through (n).'' This provision is
incorporated in Sec. 5.330(e).
Current Sec. 3.350(e)(4) reads, ``The maximum rate, as a result of
including helplessness as one of the entitling multiple disabilities,
is intended to cover, in addition to obvious losses and blindness,
conditions such as the loss of use of two extremities with absolute
deafness and nearly total blindness or with severe multiple injuries
producing total disability outside the useless extremities, these
conditions being construed as loss of use of two extremities and
helplessness.'' This paragraph essentially re-states Sec.
3.350(e)(1)(ii), which is incorporated in Sec. 5.330(e).
Similarly, the second, third and fourth sentences of Sec.
3.350(e)(3) reads:
This requires, for example, that where a veteran who had
suffered the loss or loss of use of two extremities is being
considered for the maximum rate on account of helplessness requiring
regular aid and attendance, the latter must be based on need
resulting from pathology other than that of the extremities. If the
loss or loss of use of two extremities or being permanently
bedridden leaves the person helpless, increase is not in order on
account of this helplessness. Under no circumstances will the
combination of `being permanently bedridden' and `being so helpless
as to require regular aid and attendance' without separate and
distinct anatomical loss, or loss of use, of two extremities, or
blindness, be taken as entitling to the maximum benefit.
These sentences merely elaborate on or rephrase the limitation from
current Sec. 3.350(e)(1)(ii) that the same disability may not be
considered as the basis for two rates of SMC. Although some explanation
of the concepts of current Sec. 3.350(e)(1)(ii) is helpful, the more
concise discussion proposed in paragraphs (e)(1) and (2) of Sec. 5.330
is still sufficient and easier to read and understand.
5.331 Special Monthly Compensation Under 38 U.S.C. 1114(p)
Proposed Sec. 5.331 is derived from current Sec. 3.350(f)(2)
through (f)(5). The proposed regulation provides rules regarding
payment of additional SMC under 38 U.S.C. 1114(p).
Proposed Sec. 5.331(b)(1) is based on current Sec.
3.350(f)(2)(iv). Instead of referring to blindness in both eyes with
visual acuity of 5/200 or less, we propose to refer to proposed Sec.
5.324(c), which provides for SMC for veterans with visual acuity of 5/
200 or less. Note that, as discussed in the preamble to proposed Sec.
5.325, we would thereby add concentric contraction of the visual field
to 5 degrees or less as an equivalent alternative to 5/200 visual
acuity contained in current Sec. 3.350(f)(2)(iv).
Current Sec. 3.350(f)(3) states that ``additional single permanent
disability or combinations of permanent disabilities independently
ratable at 50 percent or more'' are bases for additional SMC, as
specified in the rule. In Sec. 5.331(d)(1), we propose to change the
plural, ``combinations,'' to the singular, ``combination,'' because the
intent of Sec. 3.350(f)(3) was to require only one combination of
disabilities independently ratable at 50 percent or more for
entitlement to the specified additional SMC.
In proposed Sec. 5.331(d)(1) and (e)(2), we state VA's long-
standing policy that the half-step increase for additional permanent
independent disability or disabilities ratable at 50 percent or more,
contained in current Sec. 3.350(f)(3), may not be paid concurrently
with the full-step increase for an additional single permanent
independent 100 percent disability, contained in current Sec.
3.350(f)(4). This policy is consistent with the language of 38 U.S.C.
1114(p), which states that if a veteran's service-connected
disabilities exceed the requirements for a particular rate, VA may
award an additional full-step or an additional half-step to the
veteran. The full-step and the half-step are alternative awards, not
cumulative awards.
[[Page 62014]]
In proposed Sec. 5.331(d)(2) and (e)(3), we restate and clarify
the rule now in Sec. 3.350(f)(4)(i) affecting entitlement to the
additional half or whole-step based on additional independent
disability or disabilities ratable at 50 percent or more, or the single
permanent independent 100 percent disability, respectively. Current
Sec. 3.350(f)(4)(i) states, ``Where the multiple loss or loss of use
entitlement to a statutory or intermediate rate between 38 U.S.C.
1114(l) and (o) is caused by the same etiological disease or injury,
that disease or injury may not serve as the basis for the independent
50 percent or 100 percent unless it is so rated without regard to the
loss or loss of use.'' We would not use the word ``etiological,''
because it is superfluous and possibly confusing.
``Etiology'' is a medical term that means ``the causes or origin of
a disease or disorder.'' Dorland's Illustrated Medical Dictionary 660
(31st ed. 2007). So, although diabetic neuropathy, Dorland's 1287, and
diabetic retinopathy, Dorland's 1659, might have the same etiology, it
is not VA's intent that the phrase ``same etiological disease''
preclude the independent 50-percent-or-more or the independent 100
percent benefit if separate and distinct disabilities with the same
etiology otherwise meet the criteria for entitlement. Likewise, VA does
not intend to preclude the benefit if separate and distinct injuries
have the same etiology, for example, a motor vehicle accident, or a
bomb blast. Simply, in the context of Sec. 5.331(d)(2) and (e)(3), the
phrases ``same etiological disease or injury'' and ``same disease or
injury'' mean the same thing. No substantive change from the meaning of
current Sec. 3.350(f)(4)(i) is intended.
We would state the rule in Sec. 5.331(d)(2) as it pertains to the
additional independent disability or disabilities ratable at 50 percent
or more as the basis of entitlement to benefits under 38 U.S.C.
1114(p), and in Sec. 5.331(e)(3) as it pertains to the single
additional independent 100 percent disability as the basis of
entitlement to benefits under 38 U.S.C. 1114(p). By doing so, we would
reinforce that the basis for special monthly compensation (under other
than section 1114(p)) must be independent of the disability or
disabilities that are independently ratable at 50 percent or more, or
of the single disability that is ratable at 100 percent.
Current Sec. 3.350(f)(3), upon which proposed Sec. 5.331(d)(3) is
based, states that graduated ratings for arrested tuberculosis ``will
not be utilized in this connection, but the permanent residuals of
tuberculosis may be utilized.'' The wording used in the current
regulation can be improved with respect to its use of the language
``will not be utilized in this connection'' and ``may be utilized'',
and we will make these improvements in part 5. The current part 3
regulation is derived from VA Regulation 1236(C) (as amended on Oct.
28, 1954) which stated in pertinent part, ``Since this subdivision
contemplates that [the additional 50 percent disability] be permanent
in character, the graduated ratings for arrested tuberculosis * * *
will not be utilized in determining entitlement to * * * special
monthly compensation.'' We have, therefore, reworded the language in
proposed Sec. 5.331(d)(3) to reflect that permanent residuals of
tuberculosis, and not the graduated ratings for arrested tuberculosis,
may serve as the basis for SMC under Sec. 5.331(d) because the
graduated ratings for arrested tuberculosis are not intended to be
permanent.
Proposed Sec. 5.331(e)(3) is derived from current Sec.
3.350(f)(4)(ii), which states the same rule, verbatim, as does Sec.
3.350(f)(3) quoted above. Proposed Sec. 5.331(e)(3) would state the
same rule as does Sec. 5.331(d)(3) for the same reasons.
In proposed Sec. 5.331(f), we have restated the triple extremity
rule contained in current Sec. 3.350(f)(5), which provides for
compensation for anatomical loss or loss of use of three extremities.
We have clarified that the triple extremity rule entitles the veteran
to the next higher intermediate rate or, if the veteran is already
entitled to an intermediate rate, to the next higher rate under 38
U.S.C. 1114. We note that current paragraphs Sec. 3.350(f)(2), (f)(3),
and (f)(5) use different language to describe the same result. Compare
38 CFR 3.350(f)(2)(iv) (``* * * will afford entitlement to the next
higher intermediate rate of if the veteran is already entitled to an
intermediate rate, to the next higher statutory rate * * *.'') with 38
CFR 3.350(f)(5) (``* * * shall entitle a veteran to the next higher
rate without regard to whether that rate is a statutory rate or an
intermediate rate.'').
We have phrased the part 5 counterparts so that the language is
consistent throughout proposed Sec. 5.331. Likewise, for consistency
throughout proposed Sec. 5.331, we have changed the reference to the
maximum rate payable for anatomical loss or loss of use of three
extremities from ``38 U.S.C. 1114(p)'' to ``38 U.S.C. 1114(o)''. In
each other instance of a statement of the maximum rate payable, current
Sec. 3.350(f) characterizes the maximum payment as ``in no event
higher than'' or ``not above'' the rate for 38 U.S.C. 1114(o). Whereas
the rate section 1114(o) provides and the maximum rate section 1114(p)
provides are the same dollar amount, this change is not substantive.
We also propose to state clearly in proposed Sec. 5.331(f) that VA
will combine the loss of use of whichever two extremities will provide
the veteran with the highest level of SMC payable before awarding the
next higher rate based on the anatomical loss or loss of use of a third
extremity. Calculating SMC in this manner provides the highest possible
level of SMC. This will ensure that VA personnel comply with current
Sec. 3.103(a) which requires ``a decision which grants every benefit
that can be supported in law.'' We also propose to state VA's long-
standing policy that when VA applies the triple extremity rule, a
veteran is entitled to keep any rates payable under 38 U.S.C. 1114(k)
and any rate payable under 38 U.S.C. 1114(p) for additional independent
50 or 100 percent disabilities.
5.332 Additional Allowance for Regular Aid and Attendance Under 38
U.S.C. 1114(r)(1) or for a Higher Level of Care Under 38 U.S.C.
1114(r)(2)
Proposed Sec. 5.332 is derived from current Sec. Sec. 3.350(h)
and 3.352(b). Under current Sec. 3.350(h)(1), a veteran receiving the
maximum rate of SMC provided by 38 U.S.C. 1114(o) or (p), who requires
regular aid and attendance or a higher level of care, is entitled to an
additional allowance under 38 U.S.C. 1114(r) for any period(s) during
which he or she is not hospitalized at the expense of the United
States. Current Sec. 3.350(h)(2) is an essentially parallel provision
that states that a veteran, receiving SMC at the intermediate rate
between 38 U.S.C. 1114(n) and (o) and at the rate under 38 U.S.C.
1114(k), who requires regular aid and attendance or a higher level of
care is entitled to an additional allowance under 38 U.S.C. 1114(r) for
any period(s) during which he or she is not hospitalized at the expense
of the United States. Because veterans are entitled to the same
allowance under 38 U.S.C. 1114(r), regardless of whether they are
receiving the maximum rate of SMC provided by 38 U.S.C. 1114(o) or are
receiving SMC at the intermediate rate between 38 U.S.C. 1114(n) and
(o) plus SMC under 38 U.S.C. 1114(k), proposed Sec. 5.332(a) combines
the essentially parallel provisions contained in current Sec.
3.350(h)(1) and (2) into a single paragraph.
Current Sec. 3.350(h)(2) differs from proposed Sec. 5.332(a) in
that Sec. 3.350(h)(2) does not state that an allowance under 38 U.S.C.
1114(r) is payable regardless
[[Page 62015]]
of whether the need for regular aid and attendance or a higher level of
care is a partial basis for entitlement to SMC at the specified rate
(the intermediate rate between 38 U.S.C. 1114(n) and (o), plus the rate
under 38 U.S.C. 1114(k)) or is based on an independent factual
determination. However, VA's long-standing practice is to allow the
service-connected disabilities that are used to establish entitlement
at the specified rate to also be used to establish a factual need for
regular aid and attendance or a higher level of care for purposes of
benefits under section 1114(r).
Proposed Sec. 5.332(b) is derived from those portions of current
Sec. 3.350(h) that refer to veterans who are in need of regular aid
and attendance and entitled to an allowance under 38 U.S.C. 1114(r)(1).
Proposed Sec. 5.332(c) is based on those portions of current Sec.
3.350(h) that refer to veterans who, in addition to being in need of
regular aid and attendance, require a higher level of care and are
entitled to an allowance under 38 U.S.C. 1114(r)(2). Proposed Sec.
5.332(c) also contains the criteria for the allowance under 38 U.S.C.
1114(r)(2) that are described in current Sec. 3.352(b).
There is no part 5 counterpart to current Sec. 3.352(b)(5), which
states that the allowance under 38 U.S.C. 1114(r)(2) is to be granted
only when the veteran's need for a higher level of care is clearly
established and the amount of services required by the veteran on a
daily basis is substantial. There is no statutory requirement under 38
U.S.C. 1114(r) that the veteran's need for a higher level of care be
``clearly established,'' and there is no reason to believe that an
evidentiary standard different from that set forth in 38 U.S.C. 5107(b)
should apply to proof of the need for a higher level of care. Although
the current regulation does not impose a new standard of proof,
eliminating the ``clearly established'' requirement should eliminate
the possibility that that requirement could be misconstrued as an
evidentiary rule. Moreover, the detailed and specific requirements for
establishing the need for a higher level of care, set forth in
paragraphs (c)(3), (4), (5), and (6), require evidence of a factual
nature and sufficiently ensure that the need will be based on evidence
of record.
Regarding the current requirement that the amount of needed
services be ``substantial,'' the definition of ``personal healthcare
services'' in paragraph (c)(3) describes services that clearly
establish a greater need than would be required simply by Sec. 5.320.
Hence, there is no need to repeat the term, ``substantial,'' and the
application of this part 5 rule will not produce a different outcome
than the application of the current rule.
5.333 Special Monthly Compensation Under 38 U.S.C. 1114(s)
Proposed Sec. 5.333 is a restatement of current Sec. 3.350(i).
The definition of housebound is slightly reworded for uniformity
throughout part 5. No substantive changes are intended.
5.334 Special Monthly Compensation Tables
We propose to include tables in paragraphs (d) through (g) of this
section as aids in determining the statutory or intermediate rate of
SMC payable for certain combinations of disabilities. These tables will
make it easier for readers of the regulations to determine the proper
rate of SMC payable for a combination of severe disabilities. The
tables summarize selected regulatory text in proposed Sec. Sec. 5.323
through 5.333, which contain more detailed information about each
benefit. These tables are intended to provide a useful summary of the
regulatory text found in current Sec. 3.350. We do not intend these
tables to confer any rights or benefits in addition to those conferred
by the regulations.
5.335 Effective Dates--Special Monthly Compensation Under Sec. Sec.
5.332 and 5.333
Proposed Sec. 5.335 is derived from a reorganization of current
Sec. 3.401, which establishes the effective date for SMC based on the
need for regular aid and attendance or due to being housebound. Current
Sec. 3.401(a)(1) states that the effective date for an award of
regular aid and attendance and housebound benefits is either the date
of receipt of claim or the date entitlement arose, whichever is later,
except as provided in current Sec. 3.400(o)(2). The same paragraph
also states that when an award ``based on an original or reopened claim
is effective for a period prior to the date of receipt of the claim,
the additional * * * compensation payable by reason of need for regular
aid and attendance or housebound status shall also be awarded for any
part of the award's retroactive period for which entitlement to the
additional benefit is established.'' To clarify current Sec.
3.401(a)(1), we propose to rewrite this regulation in two separate
paragraphs (a) and (b) in proposed Sec. 5.335 so that these two rules
can be more easily identified and understood.
Proposed Sec. 5.335(a) would refer to Sec. 3.400(o)(2) of this
chapter, and to paragraph (b) of Sec. 5.335 as exceptions to the
general effective date rule stated in paragraph (a) of that section.
In addressing retroactive awards, current 3.401(a)(1) addresses
pension as well as compensation awards. We have moved the pension
provision to proposed Sec. 5.392. See 72 FR 54776 (Sep. 26, 2007)
(effective dates for special monthly pension).
Proposed Sec. 5.335(b) expands the scope of current Sec.
3.401(a)(1), which provides for retroactive awards of SMC for regular
aid and attendance or housebound status, as noted above. Proposed Sec.
5.335(b) would provide for retroactive awards of any SMC payment when
entitlement to the SMC is established for any part of a retroactive
period of compensation based on an original or reopened compensation
claim. It is logical to treat the effective date of all SMC awards
consistently with the effective date of awards of SMC for regular aid
and attendance or housebound status. This is consistent with VA policy
to grant every benefit to which veterans are entitled. See proposed
Sec. 5.4(b), published in 71 FR 16457 (Mar. 31, 2006).
5.336 Effective Dates--Additional Compensation for Regular Aid and
Attendance Payable for a Veteran's Spouse Under Sec. 5.321
Proposed Sec. 5.336 is derived from a reorganization of those
parts of current Sec. Sec. 3.401 and 3.501 relating to the effective
date for SMC for regular aid and attendance payable for a veteran's
spouse. Current Sec. 3.401(a)(3) states that the effective date for an
award of additional compensation payable to a veteran based on the need
for regular aid and attendance of a spouse is the date of receipt of
the claim or the date entitlement arose, whichever is later. The
paragraph also states that additional compensation for regular aid and
attendance for a spouse will be awarded retroactively if the award is
in conjunction with a retroactive award of compensation based on an
original or reopened claim, for any part of the retroactive period for
which entitlement to SMC is established. Proposed Sec. 5.336(a)(1) and
(2) separate these two rules.
Current Sec. 3.401(a)(3) refers to the benefit payable for regular
aid and attendance of the veteran's spouse as ``additional disability
compensation.'' Proposed Sec. 5.336(a)(2) specifically identifies the
benefit as regular aid and attendance.
Current Sec. 3.501(b)(3) states that the effective date for the
discontinuance of additional compensation to a veteran based on the
need for regular aid and attendance of a spouse will be the end
[[Page 62016]]
of the month in which the award action is taken if the need for regular
aid and attendance has ceased. Proposed Sec. 5.336(b) includes this
effective date provision.
5.337 Award of Special Monthly Compensation Based on the Need for
Regular Aid and Attendance During Period of Hospitalization
Current Sec. 3.401(a)(2) states that, when the need for regular
aid and attendance is initially established while a veteran is
receiving hospital, institutional, or domiciliary care, the effective
date for the award will be the date of discharge. We restate this
information in proposed Sec. 5.337. No substantive changes are
intended.
Tuberculosis
5.340 Pulmonary Tuberculosis Shown by X-ray in Active Service
We propose to repeat the language of current Sec. 3.370 in
proposed Sec. 5.340 without change.
5.341 Presumptive Service Connection for Tuberculous Disease; Wartime
and Service After December 31, 1946
We propose to repeat the language of current Sec. 3.371 in
proposed Sec. 5.341, with only the following technical changes. First,
the proposed rule references the proposed part 5 counterpart to current
Sec. 3.307, Sec. 5.261, which was published as proposed on July 27,
2004. See 69 FR 44614, 44624-25. Second, where current Sec. 3.371(c)
refers to the time period ``within 36 months after the veteran's
separation from service as determined under Sec. 3.307(a)(2),'' in
proposed Sec. 5.341(c) we refer to the time period as ``within the 3-
year presumptive period provided by Sec. 5.261(d).'' The proposed
language matches the language in proposed Sec. 5.341(a)(1) and will
make the proposed regulation internally consistent in the reference to
the 3-year presumptive period for tuberculosis.
5.342 Initial Grant Following Inactivity of Tuberculosis
We propose to repeat the language of current Sec. 3.372 in
proposed Sec. 5.342 without change.
5.343 Effect of Diagnosis of Active Tuberculosis
Proposed Sec. 5.343 repeats the language of current Sec. 3.374,
except for one technical change and one clarification. The proposed
rule replaces the title ``Chief Medical Director'' with ``Under
Secretary for Health,'' VA's current title for the identical position.
Section 3.374(b) states, ``Reference to the Clinic Director or Chief,
Outpatient Service, will be in order in questionable cases and, if
necessary, to the [Under Secretary for Health] in Central Office.''
Proposed Sec. 5.343(b) would state, ``In a case where there is no such
diagnosis, but there is evidence that the veteran has tuberculosis, the
case will be referred to [the VA officers specified in the
regulation].'' This makes clear that the referral is mandatory in the
circumstance described, and it eliminates potential uncertainty about
what could make a case ``questionable.'' No substantive changes are
intended.
5.344 Determination of Inactivity (Complete Arrest) of Tuberculosis
We propose to repeat the language of current Sec. 3.375 in
proposed Sec. 5.344 without change.
5.345 Changes From Activity in Pulmonary Tuberculosis Pension Cases
We propose to repeat the language of current Sec. 3.378 in
proposed Sec. 5.345, with only minor, technical revisions.
5.346 Tuberculosis and Compensation Under 38 U.S.C. 1114(q) and 1156
Proposed Sec. 5.346(a) repeats the language of current Sec.
3.959. The proposed section's title makes clear that it only applies to
compensation under 38 U.S.C. 1114(q) and 1156. This is not done in the
current regulation. No substantive changes are intended.
Proposed Sec. 5.346(b)(1)(i) is based on current Sec.
3.350(g)(1), which provides for SMC for arrested tuberculosis. The
statutory authority for this compensation was 38 U.S.C. 1114(q), which
was repealed by section 4(a) of Public Law 90-493, 82 Stat. 409 (Aug.
19, 1968). However, under section 4(b) of Public Law 90-493, a veteran
who was receiving or entitled to receive compensation for tuberculosis
on August 19, 1968, is entitled to a minimum monthly rate of
compensation of $67. Id. This provision will be placed in part 5
because there are some current veterans who continue to receive this
benefit. Although the part 3 equivalent of this paragraph is contained
in current Sec. 3.350 with the other SMC provisions authorized by 38
U.S.C. 1114, we propose to place this provision with other regulations
pertaining to tuberculosis so that it will be easier to locate.
We propose to repeat the language of current Sec. 3.401(g) in
proposed Sec. 5.346(b)(1)(ii) without change. Current Sec. 3.401(g)
provides the effective date for the minimum monthly rate of
compensation of $67. Placing this effective date provision in the same
regulation as basis for the specific benefit to which it applies is
consistent with our proposal to organize by benefit and topic the part
5 rewrites of the current part 3 regulations.
Proposed Sec. 5.346(b)(2) is based on current Sec. 3.350(g)(2).
No substantive changes are intended.
5.347 Continuance of a Total Disability Rating for Service-Connected
Tuberculosis
We propose, in Sec. 5.347, to repeat the language of current Sec.
3.343(b) without substantive change. We have updated the term, ``rating
board'' to ``agency of original jurisdiction,'' VA's current term for
the VA activity that is responsible for making the initial
determination on an issue affecting a claimant's or beneficiary's right
to benefits.
The citation to current Sec. 3.321(b) will be updated to the part
5 equivalent when we publish the final version of this rule.
Injury or Death Due to Hospitalization or Treatment
5.350 Benefits Under 38 U.S.C. 1151(a) for Additional Disability or
Death Due to Hospital Care, Medical or Surgical Treatment, Examination,
Training and Rehabilitation Services, or Compensated Work Therapy
Program
We propose to repeat the language of current Sec. 3.361 in
proposed Sec. 5.350 with one substantive change. We have not repeated
current Sec. 3.361(g)(1), ``Death before January 1, 1957.'' The
paragraph provides that death compensation is the benefit payable under
38 U.S.C. 1151 for such deaths.
There are fewer than 300 beneficiaries currently receiving death
compensation. Except for one small group of beneficiaries, death
compensation is payable only if the veteran died prior to January 1,
1957. VA has not received a claim for death compensation in over 10
years and we do not expect to receive any more claims. We conclude that
because of the small number of beneficiaries of death compensation, the
provisions concerning death compensation do not need to be carried
forward to part 5.
We have updated the citation to Sec. 3.114(a), contained in
current Sec. 3.361(a)(2), to the proposed part 5 counterpart, Sec.
5.152(a), which was published as proposed on May 22, 2007. See 72 FR
28770, 28789.
Current Sec. 3.361 applies to claims under 38 U.S.C. 1151(a)
received by VA after September 30, 1997. Current Sec. 3.358 is a
similar regulation that applies to claims under 38 U.S.C. 1151(a)
received by VA before October 1, 1997. Because Part 5 will apply only
to future claims, we will not repeat the provisions of current Sec.
3.358 in Part 5.
[[Page 62017]]
5.351 Effective Dates for Awards of Benefits Under 38 U.S.C. 1151(a)
Proposed Sec. 5.351 is derived from current Sec. 3.400(i)(1). The
effective-date rule is restated without substantive change.
5.352 Effect on Benefits Awarded Under 38 U.S.C. 1151(a) of Federal
Tort Claims Act Compromises, Settlements, and Judgments Entered After
November 30, 1962
Proposed Sec. 5.352 restates current Sec. 3.362 with only minor
technical revisions. Current Sec. 3.362 applies to claims under 38
U.S.C. 1151(a) received by VA after September 30, 1997. Current Sec.
3.800 is a similar regulation that applies to claims under 38 U.S.C.
1151(a) received by VA before October 1, 1997. Because part 5 will
apply only to future claims, we will not repeat the provisions of
current Sec. 3.800 in part 5.
5.353 Effect on Benefits Awarded Under 38 U.S.C. 1151(a) of Federal
Tort Claims Act Administrative Awards, Compromises, Settlements, and
Judgments Finalized Before December 1, 1962
Proposed Sec. 5.353 restates current Sec. 3.363 with only minor
technical revisions. Current Sec. 3.363 applies to claims under 38
U.S.C. 1151(a) received by VA after September 30, 1997. Current Sec.
3.800 is a similar regulation that applies to claims under 38 U.S.C.
1151(a) received by VA before October 1, 1997. Because Part 5 will
apply only to future claims, we will not repeat the provisions of
current Sec. 3.800 in Part 5.
Ratings for Healthcare Eligibility Only
5.360 Service Connection of Dental Conditions for Treatment Purposes
Proposed Sec. 5.360 is derived from current Sec. 3.381. Proposed
paragraph (a) is a cross reference which states that, ``Eligibility
requirements for dental treatment are set forth in Sec. 17.161 of this
chapter.''
Proposed paragraph (b) is derived from current Sec. 3.381(a). It
lists the dental conditions that may be considered service connected
solely for establishing eligibility for outpatient dental treatment. We
have added a statement of VA's long-standing policy that monetary
compensation cannot be paid for these dental conditions in order to
clarify for the public the nature of the VA benefits that veterans are
entitled to receive.
In addition, the current regulation under Sec. 3.381(a) lists
periodontal disease as one of the four dental conditions that can be
considered for service connection, but it does not indicate whether the
periodontal disease must be acute or chronic in nature. We propose to
clarify the requirement that periodontal disease must be chronic in
nature before service connection can be considered because the current
VA regulation, in Sec. 3.381(e)(2), prohibits the establishment of
service connection for acute periodontal disease. This clarification is
thus consistent with current practice, and including it in this rule
will help the readers of this provision.
Current Sec. 3.381(e) says that the conditions listed therein will
not be service connected for dental treatment purposes. Section
5.360(c) would insert the word ``outpatient'', thus: ``* * * for
outpatient dental treatment purposes:''. We note the title of Sec.
3.381 does not include ``outpatient,'' but Sec. 3.381(a) is about
conditions that qualify for ``outpatient dental treatment as provided
in Sec. 17.161 of this chapter.'' Section 3.381 as a whole
distinguishes conditions that do from conditions that do not qualify
for treatment as Sec. 17.161 provides. The addition of ``outpatient''
to proposed paragraph (c) is to harmonize the section internally and to
harmonize the section with Sec. 17.161. It makes no substantive
change.
5.361 Healthcare Eligibility of Persons Administratively Discharged
Under Other-Than-Honorable Conditions
Proposed Sec. 5.361 restates, with minor technical and
organizational revisions, current Sec. 3.360. No substantive changes
are intended.
5.362 Presumption of Service Incurrence of Active Psychosis for
Purposes of Entitlement to Hospital, Nursing Home, Domiciliary, and
Medical Care
Chapter 17 of title 38 U.S.C. pertains to hospital, nursing home,
and domiciliary and medical care for veterans. Section 1702 of this
title states:
For the purposes of [chapter 17], any veteran of World War II,
the Korean conflict, the Vietnam era, or the Persian Gulf War who
developed an active psychosis (1) within two years after discharge
or release from the active military, naval, or air service, and (2)
before July 26, 1949, in the case of a veteran of World War II,
before February 1, 1957, in the case of a veteran of the Korean
conflict, before May 8, 1977, in the case of a Vietnam era veteran,
or before the end of the two year period beginning on the last day
of the Persian Gulf War, in the case of a veteran of the Persian
Gulf War, shall be deemed to have incurred such disability in active
military, naval, or air service.
We propose a new regulation that implements this statutory
provision. Although the statutory provision was enacted originally in
1958, it has never been codified by regulation. Codifying this
provision will help ensure that veterans, their representatives, and VA
employees are aware of this potentially important benefit.
Proposed Sec. 5.362(a) sets forth the basic rule that VA will
presume service connected an active psychosis that develops in a
veteran identified in Sec. 5.362(b). Proposed Sec. 5.362(b) sets
forth the statutorily required wartime service and provides the exact
periods during which the active psychosis must have developed or, in
the case of the ongoing Persian Gulf War, provides that such psychosis
must have developed within two years after the end of that war.
To aid the reader, we propose to cross reference Sec. 5.20,
published as proposed on January 30, 2004, which specifies the periods
of war. See 69 FR 4820, 4832.
5.363 Determination of Service Connection for Former Members of the
Armed Forces of Czechoslovakia or Poland
We propose no substantive change to the language of current Sec.
3.359. We have updated the term, ``rating board'' to ``agency of
original jurisdiction,'' VA's current term for the VA activity that is
responsible for making the initial determination on an issue affecting
a claimant's or beneficiary's right to benefits.
Miscellaneous Service-Connection Regulations
5.365 Claims Based on the Effects of Tobacco Products
We propose to repeat the language of current Sec. 3.300 in Sec.
5.365 without substantive change. We are not repeating the first clause
of Sec. 3.300, ``For claims received by VA after June 9, 1998,''
because all claims under part 5 will be received after 1998. For
references to other part 3 provisions contained within current Sec.
3.300, we have updated the references to the part 5 counterparts that
have already been addressed in a prior NPRM. Sections 5.260, 5.261,
5.262, 5.263, 5.264, 2.265, 5.267, and 5.268 were published as proposed
on July 27, 2004. See 69 FR 44614. We have retained the cite to the
current part 3 regulation where the proposed part 5 regulation that
deals with the same subject matter has not yet been published.
5.366 Disability Due to Impaired Hearing
Proposed Sec. 5.366 is a restatement of current Sec. 3.385. No
substantive changes are intended.
[[Page 62018]]
5.367 Civil Service Preference Ratings
We propose to repeat the content of current Sec. 3.357 in proposed
Sec. 5.367 without change.
5.368 Basic Eligibility Determinations: Home Loan and Education
Benefits
We propose to repeat the language of current Sec. 3.315(b) and (c)
in proposed Sec. 5.368 without substantive change. Note that this
proposed regulation does not contain an equivalent provision to current
Sec. 3.315(a); however, current Sec. 3.57(a)(1)(ii) states the same
rule regarding the definition of child--that a person 18 years of age
or older may be recognized as a ``child'' for the purpose of
compensation and pension benefits, if the person, before reaching 18
years of age, became permanently incapable of self-support by reason of
physical or mental disability. Proposed Sec. 5.220(b)(2)(i), the
proposed part 5 equivalent of these part 3 provisions, was published on
September 20, 2006. See 71 FR 55052, 55069.
In proposed Sec. 5.368, we have changed the citation to Sec.
3.12a to its counterpart in part 5, Sec. 5.39, published as proposed
on January 30, 2004. See 69 FR 4820, 4841-42.
Endnote Regarding Amendatory Language
We intend to ultimately remove part 3 entirely, but we are not
including amendatory language to accomplish that at this time. VA will
provide public notice before removing part 3.
Paperwork Reduction Act of 1995
This document contains no provisions constituting a collection of
information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).
Regulatory Flexibility Act
The Secretary hereby certifies that this proposed regulatory
amendment will not have a significant economic impact on a substantial
number of small entities as they are defined in the Regulatory
Flexibility Act, 5 U.S.C. 601-612. This proposed amendment would not
affect any small entities. Therefore, pursuant to 5 U.S.C. 605(b), this
proposed amendment is exempt from the initial and final regulatory
flexibility analysis requirements of sections 603 and 604.
Executive Order 12866
Executive Order 12866 directs agencies to assess all 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,
and other advantages; distributive impacts; and equity). The Executive
Order classifies a ``significant regulatory action,'' requiring review
by the Office of Management and Budget (OMB) unless OMB waives such
review, as any regulatory action that is likely to result in a rule
that may: (1) Have an annual effect on the economy of $100 million or
more or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities; (2) create a serious inconsistency or otherwise interfere
with an action taken or planned by another agency; (3) materially alter
the budgetary impact of entitlements, grants, user fees, or loan
programs or the rights and obligations of recipients thereof; or (4)
raise novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the Executive
Order.
The economic, interagency, budgetary, legal, and policy
implications of this proposed rule have been examined, and it has been
determined to be a significant regulatory action under the Executive
Order because it is likely to result in a rule that may raise novel
legal or policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in the Executive Order.
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in an expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector of $100 million or more (adjusted annually for
inflation) in any 1 year. This proposed rule would have no such effect
on State, local, and tribal governments, or the private sector.
Catalog of Federal Domestic Assistance Numbers and Titles
The Catalog of Federal Domestic Assistance program numbers and
titles for this proposal are 64.100, Automobiles and Adaptive Equipment
for Certain Disabled Veterans and Members of the Armed Forces; 64.101,
Burial Expenses Allowance for Veterans; 64.102, Compensation for
Service-Connected Deaths for Veterans' Dependents; 64.104, Pension for
Non-Service Connected Disability for Veterans; 64.105, Pension to
Veterans Surviving Spouses, and Children; 64.106, Specially Adapted
Housing for Disabled Veterans; 64.109, Veterans Compensation for
Service-Connected Disability; 64.110, Veterans Dependency and Indemnity
Compensation for Service-Connected Death; 64.115, Veterans Information
and Assistance; and 64.127, Monthly Allowance for Children of Vietnam
Veterans Born with Spina Bifida.
List of Subjects in 38 CFR Part 5
Administrative practice and procedure, Claims, Disability benefits,
Health care, Pensions, Radioactive materials, Veterans, Vietnam.
Approved: July 10, 2008.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.
For the reasons set out in the preamble, VA proposes to further
amend 38 CFR part 5 as proposed to be added at 69 FR 4832, January 30,
2004, and as further proposed to be amended at 69 FR 44614, July 27,
2004, as follows:
PART 5--COMPENSATION, PENSION, BURIAL, AND RELATED BENEFITS
Subpart E--Claims for Service Connection and Disability
Compensation
1. The authority citation for subpart E continues to read as
follows:
Authority: 38 U.S.C. 501(a) and as noted in specific sections.
2. Sections 5.320 through 5.369 and their undesignated center
headings are added to subpart E to read as follows:
Special Monthly Compensation
Sec.
5.320 Determining need for regular aid and attendance.
5.321 Additional compensation for veteran whose spouse needs regular
aid and attendance.
5.322 Special monthly compensation--general information and
definitions of disabilities.
5.323 Special monthly compensation under 38 U.S.C. 1114(k).
5.324 Special monthly compensation under 38 U.S.C. 1114(l).
5.325 Special monthly compensation at the intermediate rate between
38 U.S.C. 1114(l) and (m).
5.326 Special monthly compensation under 38 U.S.C. 1114(m).
5.327 Special monthly compensation at the intermediate rate between
38 U.S.C. 1114(m) and (n).
5.328 Special monthly compensation under 38 U.S.C. 1114(n).
5.329 Special monthly compensation at the intermediate rate between
38 U.S.C. 1114(n) and (o).
5.330 Special monthly compensation under 38 U.S.C. 1114(o).
5.331 Special monthly compensation under 38 U.S.C. 1114(p).
[[Page 62019]]
5.332 Additional allowance for regular aid and attendance under 38
U.S.C. 1114(r)(1) or for a higher level of care under 38 U.S.C.
1114(r)(2).
5.333 Special monthly compensation under 38 U.S.C. 1114(s).
5.334 Special monthly compensation tables.
5.335 Effective dates--Special monthly compensation under Sec. Sec.
5.332 and 5.333.
5.336 Effective dates--additional compensation for regular aid and
attendance payable for a veteran's spouse under Sec. 5.321.
5.337 Award of special monthly compensation based on the need for
regular aid and attendance during period of hospitalization.
5.338-5.339 [Reserved]
Tuberculosis
5.340 Pulmonary tuberculosis shown by X-ray in active service.
5.341 Presumptive service connection for tuberculous disease;
wartime and service after December 31, 1946.
5.342 Initial grant following inactivity of tuberculosis.
5.343 Effect of diagnosis of active tuberculosis.
5.344 Determination of inactivity (complete arrest) of tuberculosis.
5.345 Changes from activity in pulmonary tuberculosis pension cases.
5.346 Tuberculosis and compensation under 38 U.S.C. 1114(q) and
1156.
5.347 Continuance of a total disability rating for service-connected
tuberculosis.
5.348-5.349 [Reserved]
Injury or Death Due to Hospitalization or Treatment
5.350 Benefits under 38 U.S.C. 1151(a) for additional disability or
death due to hospital care, medical or surgical treatment,
examination, training and rehabilitation services, or compensated
work therapy program.
5.351 Effective dates for awards of benefits under 38 U.S.C.
1151(a).
5.352 Effect on benefits awarded under 38 U.S.C. 1151(a) of Federal
Tort Claims Act compromises, settlements, and judgments entered
after November 30, 1962.
5.353 Effect on benefits awarded under 38 U.S.C. 1151(a) of Federal
Tort Claims Act administrative awards, compromises, settlements, and
judgments finalized before December 1, 1962.
5.354-5.359 [Reserved]
Ratings for Healthcare Eligibility Only
5.360 Service connection of dental conditions for treatment
purposes.
5.361 Healthcare eligibility of persons administratively discharged
under other-than-honorable conditions.
5.362 Presumption of service incurrence of active psychosis for
purposes of hospital, nursing home, domiciliary, and medical care.
5.363 Determination of service connection for former members of the
Armed Forces of Czechoslovakia or Poland.
5.364 [Reserved]
Miscellaneous Service-Connection Regulations
5.365 Claims based on the effects of tobacco products.
5.366 Disability due to impaired hearing.
5.367 Civil service preference ratings.
5.368 Basic eligibility determinations: home loan and education
benefits.
5.369 [Reserved]
Subpart E--Claims for Service Connection and Disability Compensation
Special Monthly Compensation
Sec. 5.320 Determining need for regular aid and attendance.
For the purposes of this part, an individual needs regular aid and
attendance if either of the following is true:
(a) The individual, based on his or her condition as a whole, has a
temporary or permanent need for assistance, as shown by the extent of
his or her impaired ability to perform any or all of the following
functions:
(1) Getting dressed or undressed.
(2) Keeping clean and presentable.
(3) Making frequent and necessary adjustments to a prosthetic or
orthopedic appliance. (This does not include the adjustment of
appliances that able persons also cannot adjust without assistance,
such as lacing at the back, supports, and belts.)
(4) Eating or drinking, as a result of the loss of coordination of
the upper extremities or extreme weakness.
(5) Attending to bowel and bladder needs.
(6) Protecting himself or herself from the hazards or dangers of
his or her daily environment.
(Authority: 38 U.S.C. 1114(l), (m), (r)).
(b) The individual is temporarily or permanently bedridden (i.e.,
must remain in bed due to his or her disability or disabilities based
on medical necessity and not based on a prescription of bed rest for
purposes of convalescence or cure).
(Authority: 38 U.S.C. 1114(l))
Sec. 5.321 Additional compensation for veteran whose spouse needs
regular aid and attendance.
(a) General entitlement. A veteran who has a service-connected
disability rating of at least 30 percent is entitled to special monthly
compensation (SMC) if his or her spouse needs regular aid and
attendance.
(b) Automatic eligibility. The spouse will be considered to be in
need of regular aid and attendance if any of the following apply:
(1) The spouse has corrected visual acuity of 5/200 or less in both
eyes;
(2) The spouse has concentric contraction of the visual field to 5
degrees or less in both eyes; or
(3) The spouse is a patient in a nursing home because of mental or
physical incapacity.
(c) Factual need. If the spouse does not meet the criteria under
paragraph (b), the spouse will be considered in need of regular aid and
attendance if need is demonstrated under Sec. 5.320.
(Authority: 38 U.S.C. 1115)
Sec. 5.322 Special monthly compensation--general information and
definitions of disabilities.
(a) General. (1) Multiple regulations (Sec. Sec. 5.321, 5.323-
5.333) allow special monthly compensation (SMC) to veterans who have
certain service-connected disabilities. The monetary rates of payment
of SMC are found in 38 U.S.C. 1114 and 1115(1)(E). They are also on the
Internet at http://www.va.gov and are available from any VA Regional
Office. Under 38 U.S.C. 1114 and 1115(1)(E), a veteran is entitled to
SMC if he or she is in receipt of service-connected disability
compensation and:
(i) Is in need of regular aid and attendance (see Sec. 5.320);
(ii) Is permanently bedridden;
(iii) Has certain disabilities or combinations of disabilities; or
(iv) Has a spouse who is in need of regular aid and attendance.
(2) Certain nonservice-connected disabilities will be considered in
determining entitlement to SMC. (See Sec. Sec. 5.323(c)(5))
(contribution of nonservice-connected loss of use of creative organ to
service-connected loss of use of creative organ); 5.330(b), (c)
(bilateral deafness of specified severity); 5.331(b) (bilateral
blindness as specified with bilateral deafness as specified).
(3) This section defines disabilities that establish entitlement to
SMC and that are not defined in other regulations.
(b) Loss of use of a hand means the hand functions no better than a
prosthesis would function if attached to the arm at a point of
amputation below the elbow. In making this determination, VA will
consider the actual remaining function of the hand, including, but not
limited to, whether the hand can perform acts such as grasping or
manipulation with the same proficiency as an amputation stump with
prosthesis. Complete ankylosis of two major joints of an upper
extremity is an example of a situation that will constitute loss of use
of the hand. The major joints of the upper extremity are the shoulder,
elbow, and wrist.
(c) Loss of use of a foot means the foot functions no better than a
prosthesis
[[Page 62020]]
would function if attached to the leg at a point of amputation below
the knee. In making this determination, VA will consider the actual
remaining function of the foot, including, but not limited to, whether
the foot can perform acts such as balance or propulsion with the same
proficiency as an amputation stump with prosthesis. Examples of
situations that will constitute loss of use of a foot include:
(1) Extremely unfavorable complete ankylosis of the knee, that is,
the knee fixed in flexion at an angle of 45 degrees or more;
(2) Complete ankylosis of two major joints of the lower extremity,
that is, of the hip, knee, or ankle;
(3) Shortening of the lower extremity of 3.5 inches or more; and
(4) Complete paralysis of the external popliteal nerve (common
peroneal) and resulting foot drop, accompanied by characteristic
organic changes including trophic and circulatory disturbances and
other concomitants that confirm complete paralysis of the nerve.
(d) Natural elbow or knee action prevented when a prosthesis is in
place means that the veteran is unable to use a prosthesis that
requires the natural use of the elbow or knee joint. If there is no
movement of the joint (as in complete ankylosis or complete paralysis)
and a prosthesis is not used, VA will determine entitlement to SMC
based on prevented natural elbow or knee action as if a prosthesis were
in place.
(e) Use of prosthesis prevented means that the veteran's disability
prevents the use of prosthesis. This can establish the veteran's
entitlement to SMC in two circumstances:
(1) Anatomical loss near the shoulder. A veteran meets the
requirements for SMC based on anatomical loss of the upper extremity
(arm) near the shoulder if the anatomical loss prevents the use of a
prosthesis, and reamputation at a higher level that permits the use of
a prosthesis is not possible. However, if the veteran cannot wear a
prosthesis at the present level of amputation of the arm but could wear
a prosthesis if there were a reamputation at a higher level, VA will
consider the veteran eligible only for SMC based on anatomical loss or
loss of use of the arm at a level, or with complications, preventing
natural elbow action with a prosthesis in place (see paragraph (d) of
this section).
(2) Anatomical loss near the hip. A veteran meets the requirements
for SMC based on anatomical loss of the lower extremity (leg) near the
hip if the anatomical loss prevents the use of a prosthesis, and
reamputation at a higher level that permits the use of a prosthesis is
not possible. However, if the veteran cannot wear a prosthesis at the
present level of amputation of the leg but could wear a prosthesis if
there were a reamputation at a higher level, VA will consider the
veteran eligible only for SMC based on anatomical loss or loss of use
of the leg at a level, or with complications, preventing natural knee
action with a prosthesis in place (see paragraph (d) of this section).
(f) Visual acuity of 5/200 or less. If the veteran has actual
visual acuity better than 5/200 but is nevertheless assigned a
disability rating under part 4 of this chapter based on visual acuity
of 5/200, the veteran is not considered to have visual acuity of 5/200
or less for purposes of eligibility for SMC. See Sec. 4.83 of this
chapter.
(g) Loss of use or blindness of one eye, having only light
perception. Loss of use or blindness of one eye, having only light
perception, means that the veteran is unable to recognize test letters
at 1 foot and cannot perceive objects or hand movements, or count
fingers, at a distance of 3 feet. A veteran is eligible for SMC under
this paragraph if he or she meets the criteria in the preceding
sentence, even if the veteran can perceive objects or hand movements,
or can count fingers, at distances of less than 3 feet. See Sec. 4.79
of this chapter.
(Authority: 38 U.S.C. 501(a), 1114)
Sec. 5.323 Special monthly compensation under 38 U.S.C. 1114(k).
(a) Basic entitlement. Special monthly compensation (SMC) under 38
U.S.C. 1114(k) is payable to a veteran who has the following service-
connected disabilities:
(1) Anatomical loss or loss of use of one hand.
(2) Anatomical loss or loss of use of one foot.
(3) Anatomical loss or loss of use of both buttocks.
(4) Anatomical loss or loss of use of one or more creative organs.
(5) Blindness of one eye having only light perception.
(6) Deafness of both ears having absence of air and bone
conduction.
(7) Complete organic aphonia with constant inability to communicate
by speech.
(8) In the case of a female veteran, either of the following:
(i) Anatomical loss of 25 percent or more of tissue from a single
breast or both breasts in combination (including, but not limited to,
loss by mastectomy or partial mastectomy); or
(ii) Treatment of breast tissue with radiation (``treatment''
includes therapeutic procedures but not diagnostic procedures).
Note to paragraph (a): For the criteria for determining anatomical
loss or loss of use of a hand or of a foot, see Sec. 5.322(b) and (c)
respectively. For the criteria for determining loss of use or blindness
of one eye, having only light perception, see Sec. 5.322(g).
(b) Limitations.
(1) Combining with 38 U.S.C. 1114(a) through (j), or (s). SMC under
38 U.S.C. 1114(k) is payable in addition to the compensation authorized
by 38 U.S.C. 1114(a) through (j), or (s), subject to the following
limitations:
(i) The combined rate of compensation must not exceed the monthly
rate provided by 38 U.S.C. 1114(l) when authorized in conjunction with
any of the rates provided by 38 U.S.C. 1114(a) through (j), or (s).
(ii) If the veteran has entitlement under 38 U.S.C. 1114(l) through
(n), or (p), SMC under 38 U.S.C. 1114(k) is payable for each anatomical
loss or loss of use in addition to the losses used to establish
entitlement under 38 U.S.C. 1114(l) through (n), or (p), as long as the
combined monthly compensation does not exceed the monthly rate provided
by 38 U.S.C. 1114(o).
(iii) The additional compensation for dependents under 38 U.S.C.
1115 and the additional allowance for regular aid and attendance or a
higher level of care provided by 38 U.S.C. 1114(r) are not subject to
the above limitations regarding maximum monthly compensation payable
under this paragraph.
(2) Combining with 38 U.S.C. 1114(l) through (n). A disability for
which SMC is paid under 38 U.S.C. 1114(k) may not be a basis for a
higher level of SMC under 38 U.S.C. 1114(l) through (n); however, a
disability for which SMC is paid under 38 U.S.C. 1114(k) may be paid
concurrently with SMC under 38 U.S.C. 1114(l) through (n), as long as
the same disability is not the basis for SMC under both 38 U.S.C.
1114(k) and either 38 U.S.C. 1114(l), (m), or (n). The total combined
rate of SMC cannot exceed the amount set forth in 38 U.S.C. 1114(o).
(c) Creative organ. (1) A creative organ means an organ directly
involved in reproduction.
(2) Anatomical loss of a creative organ exists in any of the
following circumstances:
(i) Acquired absence of one or both testicles (other than
undescended testicles);
(ii) Acquired absence of one or both ovaries; or
(iii) Acquired absence of other creative organs.
[[Page 62021]]
(3) Loss of use of a creative organ exists in any of the following
circumstances:
(i) The diameters of the affected testicle are reduced to one-third
of the corresponding diameters of the normal testicle;
(ii) The diameters of the affected testicle are reduced to one-half
or less of the corresponding normal testicle with changes in
consistency of the affected testicle (harder or softer) when compared
to the normal testicle;
(iii) Absence of spermatozoa proven by biopsy performed with the
informed consent of the veteran; or
(iv) Medical evidence shows that, due to injury or disease,
reproduction is not possible without medical intervention. This could
occur if the veteran has:
(A) In the case of paired creative organs, the loss of function of
at least one such organ; or
(B) In the case of an unpaired creative organ, loss of function.
(4) SMC under 38 U.S.C. 1114(k) is payable for service-connected
erectile dysfunction as the loss of use of a creative organ even if the
veteran uses prescription medications or mechanical devices to treat
the erectile dysfunction. This rule applies regardless of whether such
treatment is effective.
(5) SMC under 38 U.S.C. 1114(k) is payable for a service-connected
anatomical loss of a creative organ even if it is preceded by a
nonservice-connected loss of use. Examples of this include, but are not
limited to, the following:
(i) The veteran had a vasectomy before military service with the
anatomical loss or loss of use of one testicle during military service;
(ii) The veteran had a vasectomy following military service with a
subsequent prostatectomy as a result of service-connected prostate
cancer;
(iii) The veteran had impotence as a result of a nonservice-
connected psychiatric condition with subsequent prostatectomy due to
service-connected prostate cancer; or
(iv) The veteran had a tubal ligation before service with a
subsequent oophorectomy due to service-connected injury or disease.
(6) SMC under 38 U.S.C. 1114(k) is not payable when anatomical loss
or loss of use of a creative organ resulted from elective surgery
performed after military service. However, if the elective surgery
after service was necessary to correct an injury caused by surgery
during military service, SMC under 38 U.S.C. 1114(k) is payable.
Surgery advised on sound medical judgment for relief of a pathological
condition or to prevent possible future pathological consequences is
not considered to be elective surgery.
(7) Atrophy resulting from mumps followed by orchitis in service is
presumed service connected. Because atrophy is usually perceptible
within 1 to 6 months after infection subsides, an examination more than
6 months after the remission of orchitis demonstrating a normal
genitourinary system will be considered in determining if the
presumption is rebutted.
(d) Determining loss of use of both buttocks. (1) Loss of use of
both buttocks exists if there is severe damage by disease or injury to
muscle group XVII, bilaterally (See Sec. Sec. 4.56, 4.73, Diagnostic
Code 5317, of this chapter), and additional disability making it
impossible for the individual, without assistance, to rise from a
seated position and from a stooped position (fingers to toes position)
and to maintain postural stability (pelvis upon head of femur). The
cited assistance may be provided by the individual's own hands or arms,
and, in the matter of postural stability, by a special appliance.
(2) The receipt of SMC for anatomical loss or loss of use of both
lower extremities under 38 U.S.C. 1114(l) through (n) does not prevent
the receipt of SMC under 38 U.S.C. 1114(k) for loss of use of both
buttocks if appropriate tests clearly substantiate there is such
additional loss of use.
(e) Deafness. Deafness of both ears, having absence of air and bone
conduction, exists if an authorized VA audiology examination shows
bilateral hearing loss equal to or greater than the bilateral hearing
loss required for a maximum rating under the Schedule for Rating
Disabilities in part 4 of this chapter.
(f) Aphonia. Complete organic aphonia exists if an individual has a
disability of the speech organs that constantly precludes communication
by speech.
(Authority: 38 U.S.C. 1114(k))
Sec. 5.324 Special monthly compensation under 38 U.S.C. 1114(l).
Special monthly compensation (SMC) under 38 U.S.C. 1114(l) is
payable to a veteran who has any of the following service-connected
disabilities:
(a) Anatomical loss or loss of use of both feet. See Sec.
5.322(c).
(b) Anatomical loss or loss of use of one hand and one foot. See
Sec. 5.322(b), (c).
(c) Each eye having either:
(1) Blindness with visual acuity of 5/200 or less under Sec.
5.322(f); or
(2) Concentric contraction of the visual field to 5 degrees or
less.
(d) Service-connected disability (or disabilities) causing the
veteran to be permanently bedridden, which means that the veteran must
remain in bed, and it is reasonably certain that the confinement to bed
will continue throughout his or her lifetime. The criteria for
determining whether a veteran is bedridden are found at Sec. 5.320(b).
(e) Service-connected disability or disabilities establishing the
veteran's need for regular aid and attendance under Sec. 5.320. Note:
Unless the veteran is entitled to additional SMC under 38 U.S.C.
1114(r) (see Sec. 5.332), VA will award SMC under 38 U.S.C. 1114(l)
based on permanently bedridden status if the veteran is permanently
bedridden (see paragraph (d) of this section) rather than on the need
for regular aid and attendance.
(Authority: 38 U.S.C. 1114(l))
Cross Reference: Sec. 5.330, ``Special monthly compensation
under 38 U.S.C. 1114(o)'' (discussing combinations of awards made
under Sec. Sec. 5.324, 5.326, or 5.328).
Sec. 5.325 Special monthly compensation at the intermediate rate
between 38 U.S.C. 1114(l) and (m).
VA will pay special monthly compensation (SMC) at the intermediate
rate between 38 U.S.C. 1114(l) and (m) for any of the combinations of
disabilities listed in paragraphs (a) through (d) of this section. (The
intermediate rate is the arithmetic mean between the rates for (l) and
(m), rounded down to the next lower dollar.)
(a) Anatomical loss or loss of use of one foot with anatomical loss
or loss of use of the opposite leg at a level, or with complications,
preventing natural knee action with prosthesis in place.
(b) Anatomical loss or loss of use of one arm at a level, or with
complications, preventing natural elbow action with prosthesis in place
with anatomical loss or loss of use of one foot.
(c) Anatomical loss or loss of use of one hand with anatomical loss
or loss of use of one leg at a level, or with complications, preventing
natural knee action with prosthesis in place.
(d) Blindness of one eye with visual acuity of 5/200 or less, or
concentric contraction of the visual field to 5 degrees or less of one
eye; and blindness of the other eye, having only light perception.
(Authority: 38 U.S.C. 1114(p))
Cross Reference: Sec. 5.322, ``Special monthly compensation--
general information and definitions of disabilities'' (containing
the criteria for the disabilities listed in Sec. 5.325).
[[Page 62022]]
Sec. 5.326 Special monthly compensation under 38 U.S.C. 1114(m).
Special monthly compensation (SMC) under 38 U.S.C. 1114(m) is
payable for any of the following combinations of disabilities:
(a) Anatomical loss or loss of use of both hands.
(b) Anatomical loss or loss of use of both legs at a level, or with
complications, preventing natural knee action with prosthesis in place.
(c) Anatomical loss or loss of use of one foot with anatomical loss
of the other leg so near the hip as to prevent the use of prosthetic
appliance.
(d) Anatomical loss or loss of use of one arm so near the shoulder
as to prevent the use of prosthetic appliance with anatomical loss or
loss of use of one foot.
(e) Anatomical loss or loss of use of one arm at a level, or with
complications, preventing natural elbow action with prosthesis in place
and anatomical loss or loss of use of one leg at a level, or with
complications, preventing natural knee action with prosthesis in place.
(f) Anatomical loss or loss of use of one hand with anatomical loss
of one leg so near the hip as to prevent the use of a prosthetic
appliance.
(g) Blindness in both eyes having only light perception.
(h) Blindness of one eye with visual acuity of 5/200 or less or
with concentric contraction of the visual field to 5 degrees or less;
and
(1) Anatomical loss of the other eye; or
(2) Blindness without light perception of the other eye.
(i) Blindness in both eyes leaving the veteran so significantly
disabled as to need regular aid and attendance. If the veteran has
visual acuity of 5/200 or less in both eyes or concentric contraction
of the visual field to 5 degrees or less in both eyes, then entitlement
to compensation at the section 1114(m) rate will be determined on the
facts in the individual case.
(Authority: 38 U.S.C. 1114(m), (p))
Cross References: Sec. 5.320, ``Determining need for regular
aid and attendance.'' Sec. 5.322, ``Special monthly compensation--
general information and definitions of disabilities'' (containing
the criteria for the disabilities listed in Sec. 5.326). Sec.
4.76, ``Examination of field [of] vision'' (containing the criteria
for blindness based on concentric contraction of the visual field).
Sec. 5.330, ``Special monthly compensation under 38 U.S.C.
1114(o)'' (discussing combinations of awards made under Sec. Sec.
5.324, 5.326, or 5.328).
Sec. 5.327 Special monthly compensation at the intermediate rate
between 38 U.S.C. 1114(m) and (n).
VA will pay special monthly compensation (SMC) at the intermediate
rate between 38 U.S.C. 1114(m) and (n) for any of the combinations of
disabilities listed in paragraphs (a) through (d) of this section. (The
intermediate rate is the arithmetic mean between the rates for 38
U.S.C. 1114(m) and (n), rounded down to the nearest dollar.)
(a) Anatomical loss or loss of use of one hand with anatomical loss
or loss of use of the other arm at a level, or with complications,
preventing natural elbow action with prosthesis in place.
(b) Anatomical loss or loss of use of one leg at a level, or with
complications, preventing natural knee action with prosthesis in place
with anatomical loss of the other leg so near the hip as to prevent the
use of prosthetic appliance.
(c) Anatomical loss of one arm so near the shoulder as to prevent
the use of prosthetic appliance with anatomical loss or loss of use of
one leg at a level, or with complications, preventing natural knee
action with prosthesis in place.
(d) Anatomical loss or loss of use of one arm at a level, or with
complications, preventing natural elbow action with prosthesis in place
with anatomical loss of one leg so near the hip as to prevent the use
of prosthetic appliance.
(e) Blindness of one eye, having only light perception; and
(1) Anatomical loss of the other eye; or
(2) Blindness without light perception of the other eye.
(Authority: 38 U.S.C. 1114(p))
Cross References: Sec. 5.322, ``Special monthly compensation--
general information and definitions of disabilities.'' Sec. 5.326,
``Special monthly compensation under 38 U.S.C. 1114(m).''
Sec. 5.328 Special monthly compensation under 38 U.S.C. 1114(n).
VA will pay special monthly compensation (SMC) under 38 U.S.C.
1114(n) for any of the combinations of disabilities listed in
paragraphs (a) through (e) of this section.
(a) Anatomical loss or loss of use of both arms at a level, or with
complications, preventing natural elbow action with prosthesis in
place.
(b) Anatomical loss or loss of use of one hand with anatomical loss
of the other arm so near the shoulder as to prevent the use of a
prosthetic appliance.
(c) Anatomical loss of both legs so near the hip as to prevent the
use of prosthetic appliances.
(d) Anatomical loss of one arm so near the shoulder as to prevent
the use of a prosthetic appliance and anatomical loss of one leg so
near the hip as to prevent the use of a prosthetic appliance.
(e) Anatomical loss of both eyes, blindness without light
perception in both eyes, or anatomical loss of one eye and blindness
without light perception in the other eye.
(Authority: 38 U.S.C. 1114(n), (p))
Cross References: Sec. 5.322, ``Special monthly compensation--
general information and definitions of disabilities.'' Sec. 5.326,
``Special monthly compensation under 38 U.S.C. 1114(m).'' Sec.
5.327, ``Special monthly compensation at the intermediate rate
between 38 U.S.C. 1114(m) and (n)'' (containing the criteria for the
disabilities listed in Sec. 5.328). Sec. 5.330, ``Special monthly
compensation under 38 U.S.C. 1114(o)'' (discussing combinations of
awards made under Sec. Sec. 5.324, 5.326, or 5.328).
Sec. 5.329 Special monthly compensation at the intermediate rate
between 38 U.S.C. 1114(n) and (o).
VA will pay special monthly compensation (SMC) at the intermediate
rate between 38 U.S.C. 1114(n) and (o) for anatomical loss or loss of
use of one arm at a level, or with complications, preventing natural
elbow action with prosthesis in place and anatomical loss of the other
arm so near the shoulder as to prevent the use of prosthetic appliance.
(The intermediate rate is the arithmetic mean between the rates for (n)
and (o), rounded down to the next lower dollar.)
(Authority: 38 U.S.C. 1114(p))
Cross References: Sec. 5.322, ``Special monthly compensation--
general information and definitions of disabilities.'' Sec. 5.328,
``Special monthly compensation under 38 U.S.C. 1114(n)'' (containing
the criteria for the disabilities listed in Sec. 5.329).
Sec. 5.330 Special monthly compensation under 38 U.S.C. 1114(o).
VA will pay special monthly compensation (SMC) under 38 U.S.C.
1114(o) for any of the following combinations of disabilities:
(a) Anatomical loss of both arms so near the shoulder as to prevent
the use of prosthetic appliances.
(b) Bilateral deafness rated at 60 percent or more disabling (and
the hearing impairment in either one or both ears is service connected)
in combination with service-connected blindness with bilateral visual
acuity of 20/200 or less.
(c) Service-connected total deafness in one ear or bilateral
deafness rated at 40 percent or more disabling (and the
[[Page 62023]]
hearing impairment in either one or both ears is service connected) in
combination with service-connected blindness of both eyes having only
light perception or less.
(d) Loss of use of both lower extremities together with loss of
anal and bladder sphincter control. (VA will consider that the
requirement of loss of anal and bladder sphincter control is met even
though incontinence has been overcome under a strict regimen of
rehabilitation training and/or other auxiliary measures.)
(e) Disabilities entitling the veteran to two or more of the
monetary rates provided in 38 U.S.C. 1114(l) through (n), without
considering any disabilities twice.
(1) Separate and distinct disabilities. Entitlement under this
paragraph (e) must be based on separate, distinct disabilities.
(2) Common cause. A common cause of disabilities that are otherwise
separate and distinct will not preclude entitlement to SMC under this
paragraph (e). For example, a veteran with service-connected anatomical
loss or loss of use of both hands and both feet resulting from a common
cause would nevertheless be entitled to SMC.
(Authority: 38 U.S.C. 1114(o))
Cross References: Sec. 5.320, ``Determining need for regular
aid and attendance.'' Sec. 5.322, ``Special monthly compensation--
general information and definitions of disabilities.'' Sec. 5.328,
``Special monthly compensation under 38 U.S.C. 1114(n).'' Sec.
5.329; ``Special monthly compensation at the intermediate rate
between 38 U.S.C. 1114(n) and (o).'' Sec. 5.332, ``Additional
allowance for regular aid and attendance under 38 U.S.C. 1114(r)(1)
or for a higher level of care under 38 U.S.C. 1114(r)(2)''
(containing criteria based in part on the disabilities listed in
Sec. 5.330).
Sec. 5.331 Special monthly compensation under 38 U.S.C. 1114(p).
(a) Intermediate or next higher level of special monthly
compensation. In the event the veteran's service-connected disabilities
exceed the requirements for any of the rates prescribed under
Sec. Sec. 5.324 through 5.329, VA will pay special monthly
compensation (SMC) under 38 U.S.C. 1114(p) as follows. (An intermediate
rate authorized by this section is the arithmetic mean between the two
rates of SMC, rounded down to the next lower dollar.)
(b) Bilateral blindness in combination with deafness. (1) Blindness
in both eyes rated under Sec. Sec. 5.324(c), 5.325(d), or 5.326(h) or
(i), with service-connected total deafness in one ear, entitles the
veteran to the next higher intermediate rate. If the veteran is already
entitled to an intermediate rate, the veteran will be entitled to the
next higher rate under 38 U.S.C. 1114. However, the rate cannot exceed
the rate under 38 U.S.C. 1114(o).
(2) Blindness in both eyes rated under Sec. Sec. 5.326(g),
5.327(e), or 5.328(e) with bilateral deafness (and the hearing
impairment in either one or both ears is service connected) rated at 10
percent or 20 percent disabling entitles the veteran to the next higher
intermediate rate. If the veteran is already entitled to an
intermediate rate, the veteran will be entitled to the next higher rate
under 38 U.S.C. 1114. However, the rate cannot exceed the rate under 38
U.S.C. 1114(o).
(3) Blindness in both eyes, rated under Sec. Sec. 5.324(c),
5.325(d), 5.326(g), (h), or (i), 5.327(e), or 5.328(e), with bilateral
deafness rated at not less than 30 percent disabling (and the hearing
impairment in one or both ears is service connected) entitles the
veteran to the next higher rate under 38 U.S.C. 1114. If the veteran is
already entitled to an intermediate rate, the veteran will be entitled
to the next higher intermediate rate. However, the rate cannot exceed
the rate under 38 U.S.C. 1114(o).
(c) Bilateral blindness in combination with anatomical loss or loss
of use of a hand or foot. Blindness in both eyes, rated under
Sec. Sec. 5.324(c), 5.325(d), 5.326(g), (h), or (i), 5.327(e), or
5.328(e), combined with any of the disabilities described below (in
paragraphs (c)(1), (2), or (3) of this section).
(1) Service-connected anatomical loss or loss of use of one hand
entitles the veteran to the next higher statutory rate under 38 U.S.C.
1114. If the veteran is already entitled to an intermediate rate, the
veteran will be entitled to the next higher intermediate rate. However,
the rate cannot exceed the rate under 38 U.S.C. 1114(o).
(2) Service-connected anatomical loss or loss of use of one foot
which by itself or in combination with another compensable disability
would be ratable at 50 percent or more disabling, entitles the veteran
to the next higher rate under 38 U.S.C. 1114. If the veteran is already
entitled to an intermediate rate, the veteran will be entitled to the
next higher intermediate rate. However, the rate cannot exceed the rate
under 38 U.S.C. 1114(o).
(3) Service-connected anatomical loss or loss of use of one foot
which is ratable at less than 50 percent disabling and which is the
only compensable disability other than bilateral blindness, entitles
the veteran to the next higher intermediate rate. If the veteran is
already entitled to an intermediate rate, the veteran will be entitled
to the next higher rate under 38 U.S.C. 1114. However, the rate cannot
exceed the rate under 38 U.S.C. 1114(o).
(d) Additional independent disability or disabilities ratable at 50
percent or more disabling. (1) If a veteran is entitled to SMC under
one of the rates payable under Sec. Sec. 5.324 through 5.329 and also
has a permanent disability, or combination of permanent disabilities,
which are independently ratable at 50 percent or more disabling, VA
will award the veteran SMC at the next higher intermediate rate. If the
veteran is already entitled to an intermediate rate, VA will award the
next higher rate under 38 U.S.C. 1114. However, the rate payable
pursuant to this paragraph cannot exceed the rate under 38 U.S.C.
1114(o). This benefit may not be paid concurrently with the 100 percent
rate pursuant to 38 U.S.C. 1114(p) under Sec. 5.331(e).
(2) ``Independently ratable'' means that the additional disability
or disabilities ratable at 50 percent or more disabling are separate
and distinct, and involve different anatomical segments or bodily
systems, from the disability or disabilities establishing entitlement
under Sec. Sec. 5.324 through 5.329. If the bases for the additional
disability or disabilities and the basis for entitlement to SMC under
Sec. Sec. 5.324 through 5.329 are caused by the same disease or
injury, VA cannot pay the next higher intermediate rate unless the
additional disability or disabilities would be rated 50 percent or more
disabling without regard to the basis for entitlement to SMC under
Sec. Sec. 5.324 through 5.329.
(3) Permanent residuals of tuberculosis, and not the graduated
ratings for arrested tuberculosis, may serve as the basis for the
independent 50 percent disability rating.
(e) Additional independent disability ratable at 100 percent. (1)
If a veteran is entitled to SMC at one of the rates payable under
Sec. Sec. 5.324 through 5.329 and has a single permanent disability
that is independently ratable at 100 percent disabling, VA will award
the veteran the next higher rate under 38 U.S.C. 1114. If the veteran
is receiving SMC at an intermediate rate, VA will award to the next
higher intermediate rate. The single permanent disability must be
independently ratable at 100 percent disabling without regard to
individual unemployability. The rate assigned under this paragraph
cannot exceed the rate under 38 U.S.C. 1114(o). It cannot be paid
concurrently with the 50 percent-or-more rate payable under paragraph
(d) of this section.
(2) For the definition of ``in de pen dent ly ratable,'' see
paragraph (d)(2) of this section.
[[Page 62024]]
(3) Permanent residuals of tuberculosis, and not the graduated
ratings for arrested tuberculosis, may serve as the basis for the
independent 100 percent disability rating.
(f) Three extremities. Anatomical loss, loss of use, or a
combination of anatomical loss and loss of use of three extremities
entitles the veteran to the next higher intermediate rate. If the
veteran is already entitled to an intermediate rate, the veteran will
be entitled to the next higher rate under 38 U.S.C. 1114. VA will
combine the anatomical loss or loss of use of whichever two extremities
will provide the veteran with the highest level of SMC before combining
the third anatomical loss or loss of use of an extremity to award the
next higher rate. However, this combined rate cannot exceed the rate
under 38 U.S.C. 1114(o). When there is entitlement for triple extremity
or blindness with extremity, it will be in addition to any entitlement
under 38 U.S.C. 1114(k) or (p) for the 50 or 100 percent elevations for
the same extremity.
(Authority: 38 U.S.C. 1114(p))
Sec. 5.332 Additional allowance for regular aid and attendance under
38 U.S.C. 1114(r)(1) or for a higher level of care under 38 U.S.C.
1114(r)(2).
(a) General. The additional allowance that 38 U.S.C. 1114(r)
authorizes is payable whether the need for regular aid and attendance
or for a higher level of care is a partial basis for entitlement to the
maximum rate under 38 U.S.C. 1114(o) or (p), or to the intermediate
rate between 38 U.S.C. 1114(n) and (o) plus the rate under 38 U.S.C.
1114(k), or is based on an independent factual determination.
(b) Criteria for additional allowance under 38 U.S.C. 1114(r)(1). A
veteran is entitled to an additional allowance under 38 U.S.C.
1114(r)(1) when all of the following conditions are met:
(1) The veteran is entitled to the maximum rate under 38 U.S.C.
1114(o) or (p), or to the intermediate rate between 38 U.S.C. 1114(n)
and (o) plus the rate under 38 U.S.C. 1114(k);
(2) The veteran meets the requirements for regular aid and
attendance under Sec. 5.320; and
(3) The veteran is not hospitalized at United States Government
expense.
(c) Criteria for additional allowance under 38 U.S.C. 1114(r)(2).
(1) General criteria. A veteran is entitled to an additional allowance
under 38 U.S.C. 1114(r)(2), instead of the allowance under 38 U.S.C.
1114(r)(1), when all of the following conditions are met:
(i) The veteran is entitled to the maximum rate under 38 U.S.C.
1114(o) or (p), or to the intermediate rate between 38 U.S.C. 1114(n)
and (o) plus the rate under 38 U.S.C. 1114(k);
(ii) The veteran meets the requirements for regular aid and
attendance under Sec. 5.320;
(iii) The veteran needs a ``higher level of care'' (as defined in
paragraph (c)(2) of this section);
(iv) Without the higher level of care, the veteran would require
hospitalization, nursing home care, or other residential institutional
care; and
(v) The veteran is not hospitalized at United States Government
expense.
(2) Higher level of care. For the purposes of this section, a
veteran needs a ``higher level of care'' whenever the veteran requires
personal healthcare services provided on a daily basis in the veteran's
residence by a person who is licensed to provide these services or who
provides these services under the regular supervision of a licensed
healthcare professional.
(3) Personal healthcare services. For the purposes of this section,
``personal healthcare services'' include, but are not limited to,
physical therapy, administration of injections, placement of indwelling
catheters, the changing of sterile dressings, or similar functions, the
performance of which requires professional healthcare training or the
regular supervision of a trained healthcare professional.
(4) Licensed healthcare professional. For the purposes of this
section, a ``licensed healthcare professional'' includes, but is not
limited to, a doctor of medicine or osteopathy, a registered nurse, a
licensed practical nurse, or a physical therapist licensed to practice
by a State or a political subdivision of a State.
(5) Under the regular supervision of a licensed healthcare
professional. For the purposes of this section, the term ``under the
regular supervision of a licensed healthcare professional'' means that
an unlicensed person performing personal healthcare services is
following a regimen of personal healthcare services prescribed by a
healthcare professional, and that the healthcare professional consults
with the unlicensed person providing the healthcare services at least
once each month to monitor the prescribed regimen. The consultation
need not be in person; a telephone call is sufficient.
(6) Care may be provided by a relative of the veteran or a member
of the veteran's household. A relative of the veteran or a member of
the veteran's household may perform the necessary personal healthcare
services. However, such a person must be a licensed healthcare
professional or provide the necessary personal healthcare services
under the regular supervision of a licensed healthcare professional.
(Authority: 38 U.S.C. 1114(r))
Sec. 5.333 Special monthly compensation under 38 U.S.C. 1114(s).
Special monthly compensation (SMC) under 38 U.S.C. 1114(s) is
payable to a veteran who has a single service-connected disability
rated as 100 percent disabling and either:
(a) An additional service-connected disability, or combination of
disabilities, ratable as 60 percent disabling independent of the single
service-connected disability rated as 100 percent; or
(b) Is permanently housebound as a result of service-connected
disability or disabilities. For the purposes of this section, a veteran
is permanently housebound if he or she is substantially confined to his
or her residence (ward or clinical areas, if institutionalized) and
immediate premises because of a service-connected disability or
disabilities, and it is reasonably certain that such disability or
disabilities will remain throughout the veteran's lifetime.
(Authority: 38 U.S.C. 1114(s))
Sec. 5.334 Special monthly compensation tables.
(a) General. The tables in this section are meant as aids to
summarize the statutory or intermediate rate of special monthly
compensation (SMC) payable to veterans under 38 U.S.C. 1114 for certain
combinations of disabilities. The regulatory text in Sec. Sec. 5.323
through 5.333 describes these benefits in more detail. No additional
rights or benefits are conferred by this section. The tables are
informative only and will not be used as a basis to grant or deny
benefits in a particular case.
(b) Symbols. The following defines the symbols used in the tables
in this section:
L = the rate under 38 U.S.C. 1114(l).
L\1/2\ = the intermediate rate between 38 U.S.C. 1114(l) and (m).
M = the rate under 38 U.S.C. 1114(m).
M\1/2\ = the intermediate rate between 38 U.S.C. 1114(m) and (n).
N = the rate under 38 U.S.C. 1114(n).
N\1/2\ = the intermediate rate between 38 U.S.C. 1114(n) and (o).
O = the rate under 38 U.S.C 1114(o).
(c) Usage. In Tables 1 through 4, the columns and rows are labeled
with specific disabilities or combinations of disabilities. The point
where a column and row intersect represents the rate or intermediate
rate of SMC payable for the specified combination of disabilities. For
example, in Table 1, a veteran who
[[Page 62025]]
has the anatomical loss or loss of use of one leg at a level, or with
complications, preventing natural knee action with prosthesis in place
and anatomical loss of one arm so near the shoulder as to prevent the
use of prosthetic appliances is entitled to the intermediate rate of
SMC between 38 U.S.C. 1114(m) and (n) (symbol M\1/2\).
(d) Table 1. To determine the level of SMC payable when there are
varying degrees of anatomical loss or loss of use of two extremities,
identify the proper degree of loss for one extremity along the top row
of Table 1 and the proper degree of loss for the other extremity down
the left column. The square where the column and row intersect contains
the symbol for the level of SMC payable and the regulatory citation
that supports it.
Table 1--SMC--Extremities Only
--------------------------------------------------------------------------------------------------------------------------------------------------------
Anatomical loss Anatomical loss
Anatomical loss Anatomical loss or loss of use: or loss of use: Anatomical loss Anatomical loss
Extremities or loss of use: or loss of use: one leg & no one arm & no of one leg: of one arm:
one foot one hand knee action elbow action near hip near shoulder
--------------------------------------------------------------------------------------------------------------------------------------------------------
Anatomical loss or loss of use: one foot.......... L L L\1/2\ L\1/2\ M M
Sec. 5.324(a) Sec. 5.324(b) Sec. 5.325(a) Sec. 5.325(b) Sec. 5.326(c) Sec. 5.326(d)
Anatomical loss or loss of use: one hand.......... L M L\1/2\ M\1/2\ M N
Sec. 5.324(b) Sec. 5.326(a) Sec. 5.325(c) Sec. 5.327(a) Sec. 5.326(f) Sec. 5.328(b)
Anatomical loss or loss of use: one leg & no knee L\1/2\ L\1/2\ M M M\1/2\ M\1/2\
action........................................... Sec. 5.325(a) Sec. 5.325(c) Sec. 5.326(b) Sec. 5.326(e) Sec. 5.327(b) Sec. 5.327(c)
Anatomical loss or loss of use: one arm & no elbow L\1/2\ M\1/2\ M N M\1/2\ N\1/2\
action........................................... Sec. 5.325(b) Sec. 5.327(a) Sec. 5.326(e) Sec. 5.328(a) Sec. 5.327(d) Sec. 5.329
Anatomical loss of one leg: near hip.............. M M M\1/2\ M\1/2\ N N
Sec. 5.326(c) Sec. 5.326(f) Sec. 5.327(b) Sec. 5.327(d) Sec. 5.328(c) Sec. 5.328(d)
Anatomical loss of one arm: near shoulder......... M N M\1/2\ N\1/2\ N O
Sec. 5.326(d) Sec. 5.328(b) Sec. 5.327(c) Sec. 5.329 Sec. 5.328(d) Sec. 5.330(a)
--------------------------------------------------------------------------------------------------------------------------------------------------------
(e) Table 2. To determine the level of SMC payable when there are
varying degrees of blindness in both eyes, identify the proper degree
of blindness for one eye down the left column of Table 2 and the proper
degree of blindness for the other eye along the top row. The square
where the column and row intersect contains the symbol for the level of
SMC payable and the regulatory citation that supports it.
Table 2--SMC Based on Bilateral Blindness
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vision in other eye
------------------------------------------------------------------------------------
Vision in one eye Visual acuity Visual field
of 5/200 or contraction to Light No light Anatomical loss
less 5[deg] or less perception only perception of eye
--------------------------------------------------------------------------------------------------------------------------------------------------------
Visual acuity of 5/200 or less..................................... L L L\1/2\ M M
Sec. 5.324(c) Sec. 5.324(c) Sec. 5.325(d) Sec. 5.326(h) Sec. 5.326(h)
Visual field contraction to 5[deg] or less......................... L L L\1/2\ M M
Sec. 5.324(c) Sec. 5.324(c) Sec. 5.325(d) Sec. 5.326(h) Sec. 5.326(h)
Light perception only.............................................. L\1/2\ L\1/2\ M M1/2 M\1/2\
Sec. 5.325(d) Sec. 5.325(d) Sec. 5.326(g) Sec. 5.327(e) Sec. 5.327(e)
No light perception................................................ M M M\1/2\ N N
Sec. 5.326(h) Sec. 5.326(h) Sec. 5.327(e) Sec. 5.328(e) Sec. 5.328(e)
Anatomical loss of eye............................................. M M M\1/2\ N N
Sec. 5.326(h) Sec. 5.326(h) Sec. 5.327(e) Sec. 5.328(e) Sec. 5.328(e)
--------------------------------------------------------------------------------------------------------------------------------------------------------
(f) Table 3. To determine the level of SMC when there is bilateral
blindness together with anatomical loss or loss of use of an extremity,
identify the level of SMC for bilateral blindness from Table 3 and
locate it along the top row. Then identify the proper extremity loss
down the left column. The square where the column and row intersect
contains the symbol for the level of SMC payable and the regulatory
citation that supports it.
[[Page 62026]]
Table 3--SMC--Bilateral Blindness With Anatomical Loss or Loss of Use of Extremity
--------------------------------------------------------------------------------------------------------------------------------------------------------
SMC for bilateral blindness alone
Additional disability ------------------------------------------------------------------------------------
``L'' ``L\1/2\'' ``M'' ``M\1/2\'' ``N''
--------------------------------------------------------------------------------------------------------------------------------------------------------
Service-connected anatomical loss or loss of use of one foot rated L\1/2\ + K M + K M\1/2\ + K N + K N\1/2\ + K
less than 50%, and it is the only compensable disability other L L L L L
than blindness.................................................... Sec. Sec. Sec. Sec. Sec.
5.331(c)(3); 5.331(c)(3); 5.331(c)(3); 5.331(c)(3); 5.331(c)(3);
Sec. Sec. Sec. Sec. Sec.
5.323(b)(2) 5.323(b)(2) 5.323(b)(2) 5.323(b)(2) 5.323(b)(2)
Service-connected anatomical loss or loss of use of one foot rated M + K M\1/2\ + K N + K N\1/2\ + K O
50% or more, either alone or in combination with another L L L L L
disability........................................................ Sec. Sec. Sec. Sec. Sec.
5.331(c)(2); 5.331(c)(2); 5.331(c)(2); 5.331(c)(2); 5.331(c)(2);
Sec. Sec. Sec. Sec.
5.323(b)(2) 5.323(b)(2) 5.323(b)(2) 5.323(b)(2)
Service-connected anatomical loss or loss of use of one hand....... M + K M\1/2\ + K N + K N\1/2\ + K O
L L L L L
Sec. Sec. Sec. Sec. Sec.
5.331(c)(1); 5.331(c)(1); 5.331(c)(1); 5.331(c)(1); 5.331(c)(1)
Sec. Sec. Sec. Sec.
5.323(b)(2) 5.323(b)(2) 5.323(b)(2) 5.323(b)(2)
--------------------------------------------------------------------------------------------------------------------------------------------------------
(g) Table 4. To determine the level of SMC when there is bilateral
blindness together with deafness, identify the level of SMC for
bilateral blindness from Table 4 and locate it along the top row. Then
identify the proper degree of deafness down the left column. The square
where the column and row intersect contains the symbol for the level of
SMC payable and the regulatory citation that supports it.
Table 4--Special Monthly Compensation--Bilateral Blindness With Deafness
--------------------------------------------------------------------------------------------------------------------------------------------------------
SMC for bilateral blindness alone
-----------------------------------------------------------------------------------------------------
Additional disability ``M'' under
``L'' ``L\1/2\'' Sec. 5.326(h) ``M'' under ``M\1/2\'' ``N''
or (i) Sec. 5.326(g)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Service-connected (SC) total deafness in one ear.. L\1/2\ M M\1/2\ O O O
Sec. Sec. Sec. Sec. 5.330(c) Sec. 5.330(c) Sec. 5.330(c)
5.331(b)(1) 5.331(b)(1) 5.331(b)(1)
Bilateral deafness rated 10% or 20% (one or both L No additional L No additional L No additional M\1/2\ N N\1/2\
ears SC)......................................... SMC SMC SMC Sec. Sec. Sec.
5.331(b)(2) 5.331(b)(2) 5.331(b)(2)
Bilateral deafness rated 30% (one or both ears SC) M M\1/2\ N N N\1/2\ O
Sec. Sec. Sec. Sec. Sec. Sec.
5.331(b)(3) 5.331(b)(3) 5.331(b)(3) 5.331(b)(3) 5.331(b)(3) 5.331(b)(3)
Bilateral deafness rated 40% or 50% (one or both M M\1/2\ N O O O
ears SC)......................................... Sec. Sec. Sec. Sec. 5.330(c) Sec. 5.330(c) Sec. 5.330(c)
5.331(b)(3) 5.331(b)(3) 5.331(b)(3)
Bilateral deafness rated 60% or more (one or both O O O O O O
ears SC)......................................... Sec. 5.330(b) Sec. 5.330(b) Sec. 5.330(b) Sec. 5.330(b) Sec. 5.330(b) Sec. 5.330(b)
--------------------------------------------------------------------------------------------------------------------------------------------------------
(Authority: 38 U.S.C. 1114)
Sec. 5.335 Effective dates--Special monthly compensation under
Sec. Sec. 5.332 and 5.333.
(a) General Rule. Except as provided in Sec. 3.400(o)(2) of this
chapter (regarding effective dates for increased disability), and in
paragraph (b) of this section, the effective date for an award of
special monthly compensation (SMC) under Sec. Sec. 5.332, ``Additional
allowance for regular aid and attendance under 38 U.S.C. 1114(r)(1) or
for a higher level of care under 38 U.S.C. 1114(r)(2),'' or 5.333,
``Special monthly compensation under 38 U.S.C. 1114(s),'' will be the
date of receipt of the claim or the date entitlement arose, whichever
is later.
(b) Retroactive award of SMC. When VA awards disability
compensation, based on an original or reopened claim, for a retroactive
period, VA will also award SMC for all or any part(s) of that
retroactive period during which the veteran met the eligibility
requirements for SMC.
(Authority: 38 U.S.C. 5110(a), (b))
Sec. 5.336 Effective dates--additional compensation for regular aid
and attendance payable for a veteran's spouse under Sec. 5.321.
(a) Award of regular aid and attendance. (1) The effective date for
an award of additional compensation payable to a veteran because of the
veteran's spouse's need for regular aid and attendance will be the date
of receipt of the claim or the date entitlement arose, whichever is
later.
(2) When disability compensation, based on an original or reopened
claim, is awarded retroactive to an effective date prior to the date of
receipt of the
[[Page 62027]]
claim, regular aid and attendance for the spouse will also be awarded
for any part of the prior period for which entitlement to regular aid
and attendance for the spouse is established.
(b) Discontinuance of award of regular aid and attendance. The
effective date for the discontinuance of regular aid and attendance
will be the end of the month in which VA stops paying the aid and
attendance.
Cross References: Sec. 3.501(b)(3) of this chapter, ``Veterans
[effective dates for reduction or discontinuance of benefits].''
(Authority: 38 U.S.C. 501, 5110(b)(1), (2))
Sec. 5.337 Award of special monthly compensation based on the need
for regular aid and attendance during period of hospitalization.
An award of special monthly compensation (SMC) based on a need for
regular aid and attendance under Sec. 5.324, ``Special monthly
compensation under 38 U.S.C. 1114(l),'' that is made for a period
during which the veteran is or was receiving hospital, institutional,
or domiciliary care at VA expense will be effective on the date of
discharge or release from hospitalization. If the award is retroactive,
VA will not provide compensation based on the need for regular aid and
attendance for the period during which the veteran was receiving
hospital, institutional, or domiciliary care at VA expense.
Sec. Sec. 5.338-5.339 [Reserved]
Tuberculosis
Sec. 5.340 Pulmonary tuberculosis shown by X-ray in active service.
(a) Active disease. X-ray evidence alone may be adequate for grant
of direct service connection for pulmonary tuberculosis. When under
consideration, all available service department films and subsequent
films will be secured and read by specialists at designated stations
who should have a current examination report and X-ray. Resulting
interpretations of service films will be accorded the same
consideration for service connection purposes as if clinically
established, however, a compensable rating will not be assigned prior
to establishment of an active condition by approved methods.
(b) Inactive disease. Where the veteran was examined at the time of
entrance into active service but no X-ray was made, or if made, is not
available and there was no notation or other evidence of active or
inactive re-infection type pulmonary tuberculosis existing prior to
such entrance, it will be assumed that the condition occurred during
service and direct service connection will be in order for inactive
pulmonary tuberculosis shown by X-ray evidence during service in the
manner prescribed in paragraph (a) of this section, unless lesions are
first shown so soon after entry on active service as to compel the
conclusion, on the basis of sound medical principles, that they existed
prior to entry on active service.
(c) Primary lesions. Healed primary type tuberculosis shown at the
time of entrance into active service will not be taken as evidence to
rebut direct or presumptive service connection for active re-infection
type pulmonary tuberculosis.
(Authority: 38 U.S.C. 501(a))
Sec. 5.341 Presumptive service connection for tuberculous disease;
wartime and service after December 31, 1946.
(a) Pulmonary tuberculosis. (1) Evidence of activity on comparative
study of X-ray films showing pulmonary tuberculosis within the 3-year
presumptive period provided by Sec. 5.261(d) will be taken as
establishing service connection for active pulmonary tuberculosis
subsequently diagnosed by approved methods but service connection and
rating may be assigned only from the date of such diagnosis or other
evidence of clinical activity.
(2) A notation of inactive tuberculosis of the re-infection type at
induction or enlistment definitely prevents the grant of service
connection under Sec. 5.261 for active tuberculosis, regardless of the
fact that it was shown within the appropriate presumptive period.
(b) Pleurisy with effusion without obvious cause. Pleurisy with
effusion with evidence of diagnostic studies ruling out obvious
nontuberculous causes will qualify as active tuberculosis. The
requirements for presumptive service connection will be the same as
those for tuberculous pleurisy.
(c) Tuberculous pleurisy and endobronchial tuberculosis.
Tuberculous pleurisy and endobronchial tuberculosis fall within the
category of pulmonary tuberculosis for the purpose of service
connection on a presumptive basis. Either will be held incurred in
service when initially manifested within the 3-year presumptive period
provided by Sec. 5.261(d).
(d) Miliary tuberculosis. Service connection for miliary
tuberculosis involving the lungs is to be determined in the same manner
as for other active pulmonary tuberculosis.
(Authority: 38 U.S.C. 501(a))
Sec. 5.342 Initial grant following inactivity of tuberculosis.
When service connection is granted initially on an original or
reopened claim for pulmonary or nonpulmonary tuberculosis and there is
satisfactory evidence that the condition was active previously but is
now inactive (arrested), it will be presumed that the disease continued
to be active for 1 year after the last date of established activity,
provided there is no evidence to establish activity or inactivity in
the intervening period. For a veteran entitled to receive compensation
on August 19, 1968, the beginning date of graduated ratings will
commence at the end of the 1-year period. For a veteran who was not
receiving or entitled to receive compensation on August 19, 1968,
ratings will be assigned in accordance with the Schedule for Rating
Disabilities in part 4 of this chapter. This section is not applicable
to running award cases.
(Authority: 38 U.S.C. 501(a))
Sec. 5.343 Effect of diagnosis of active tuberculosis.
(a) Service diagnosis. Service department diagnosis of active
pulmonary tuberculosis will be accepted unless a board of medical
examiners, a Clinic Director, or Chief, Outpatient Service certifies,
after considering all the evidence, including the favoring or opposing
tuberculosis and activity, that such diagnosis was incorrect. Doubtful
cases may be referred to the Under Secretary for Health in Central
Office.
(b) Department of Veterans Affairs diagnosis. Diagnosis of active
pulmonary tuberculosis by the medical authorities of VA as the result
of examination, observation, or treatment will be accepted for rating
purposes. In a case where there is no such diagnosis, but there is
evidence that the veteran has tuberculosis, the case will be referred
to the Clinic Director or Chief, Outpatient Service, and, if necessary,
to the Under Secretary for Health in Central Office.
(c) Private physician's diagnosis. Diagnosis of active pulmonary
tuberculosis by private physicians based on their examination,
observation or treatment will not be accepted to show the disease was
initially manifested within the presumptive period after discharge from
active service unless confirmed by acceptable clinical, X-ray or
laboratory studies, or by findings of active tuberculosis based upon
acceptable hospital observation or treatment.
(Authority: 38 U.S.C. 501(a))
[[Page 62028]]
Sec. 5.344 Determination of inactivity (complete arrest) of
tuberculosis.
(a) Pulmonary tuberculosis. A veteran shown to have had pulmonary
tuberculosis will be held to have reached a condition of ``complete
arrest'' when a diagnosis of inactive is made.
(b) Nonpulmonary disease. Determination of complete arrest of
nonpulmonary tuberculosis requires absence of evidence of activity for
6 months. If there are two or more foci of such tuberculosis, one of
which is active, the condition will not be considered to be inactive
until the tuberculous process has reached arrest in its entirety.
(c) Arrest following surgery. Where there has been surgical
excision of the lesion or organ, the date of complete arrest will be
the date of discharge from the hospital, or 6 months from the date of
excision, whichever is later.
(Authority: 38 U.S.C. 501(a))
Sec. 5.345 Changes from activity in pulmonary tuberculosis pension
cases.
A permanent and total disability rating in effect during
hospitalization will not be discontinued before hospital discharge
based on a change in classification from active. At hospital discharge,
the permanent and total rating will be discontinued unless the medical
evidence does not support a finding of complete arrest (see Sec.
5.344) or where complete arrest is shown but the medical authorities
recommend that employment not be resumed or be resumed only for short
hours (not more than 4 hours a day for a 5-day week). If either of the
two aforementioned conditions is met, discontinuance will be deferred
pending examination in 6 months. Although complete arrest may be
established upon that examination, the permanent and total rating may
be extended for a further period of 6 months provided the veteran's
employment is limited to short hours as recommended by the medical
authorities (not more than 4 hours a day for a 5-day week). Similar
extensions may be granted under the same conditions at the end of 12
and 18-month periods. At the expiration of 24 months after
hospitalization, the case will be considered under Sec. 3.321(b) of
this chapter if continued short hours of employment are recommended or
if other evidence warrants submission.
(Authority: 38 U.S.C. 501(a))
Sec. 5.346 Tuberculosis and compensation under 38 U.S.C. 1114(q) and
1156.
(a) General. Any veteran who, on August 19, 1968, was receiving or
entitled to receive compensation for active or inactive (arrested)
tuberculosis may receive compensation under 38 U.S.C. 1114(q) and 1156
as in effect before August 20, 1968.
(b) Special monthly compensation (SMC) under 38 U.S.C. 1114(q) for
inactive tuberculosis (complete arrest). (1)(i) For a veteran who was
receiving or entitled to receive compensation for tuberculosis on
August 19, 1968, the minimum monthly rate is $67. This minimum SMC is
not to be combined with or added to any other disability compensation.
The rating criteria for determining inactivity of tuberculosis are set
out in Sec. 5.344.
(ii) The effective date for special monthly compensation (SMC)
under paragraph (b)(1)(i) of this section will be the date the
graduated rating of the disability or compensation for that degree of
disablement combined with other service-connected disabilities provides
compensation payable at a rate less than $67.
(2) For a veteran who was not receiving or entitled to receive
compensation for tuberculosis on August 19, 1968, the SMC authorized by
paragraph (b)(1) of this section is not payable.
(Authority: 38 U.S.C. 501(a); Pub. L. 90-493, 82 Stat. 809)
Sec. 5.347 Continuance of a total disability rating for service-
connected tuberculosis.
In service-connected cases, ratings for active or inactive
tuberculosis will be governed by the Schedule for Rating Disabilities
in part 4 of this chapter. Where in the opinion of the agency of
original jurisdiction the veteran at the expiration of the period
during which a total rating is provided will not be able to maintain
inactivity of the disease process under the ordinary conditions of
life, the case will be submitted under Sec. 3.321(b) of this chapter.
(Authority: 38 U.S.C. 501(a))
Sec. Sec. 5.348-5.349 [Reserved]
Injury or Death Due to Hospitalization or Treatment
Sec. 5.350 Benefits under 38 U.S.C. 1151(a) for additional disability
or death due to hospital care, medical or surgical treatment,
examination, training and rehabilitation services, or compensated work
therapy program.
(a) Claims subject to this section. (1) General. Except as provided
in paragraph (a)(2) of this section, this section applies to claims
received by VA after September 30, 1997. This includes original claims
and claims to reopen or otherwise readjudicate a previous claim for
benefits under 38 U.S.C. 1151 or its predecessors. The effective date
of benefits is subject to Sec. 5.351. For claims received by VA before
October 1, 1997, see Sec. 3.358 of this chapter.
(2) Compensated Work Therapy. With respect to claims alleging
disability or death due to compensated work therapy, this section
applies to claims that were pending before VA on November 1, 2000, or
that were received by VA after that date. The effective date of
benefits is subject to Sec. Sec. 5.152(a) and 5.351, and shall not be
earlier than November 1, 2000.
(b) Determining whether a veteran has an additional disability. To
determine whether a veteran has an additional disability, VA will
compare the veteran's condition immediately before the beginning of the
hospital care, medical or surgical treatment, examination, training and
rehabilitation services, or compensated work therapy (CWT) program upon
which the claim is based to the veteran's condition after such care,
treatment, examination, services, or program has stopped. VA considers
each involved body part or system separately.
(c) Establishing the cause of additional disability or death.
Claims based on additional disability or death due to hospital care,
medical or surgical treatment, or examination must meet the causation
requirements of this paragraph and paragraph (d)(1) or (d)(2) of this
section. Claims based on additional disability or death due to training
and rehabilitation services or CWT program must meet the causation
requirements of paragraph (d)(3) of this section.
(1) Actual causation required. To establish causation, the evidence
must show that the hospital care, medical or surgical treatment, or
examination resulted in the veteran's additional disability or death.
Merely showing that a veteran received care, treatment, or examination
and that the veteran has an additional disability or died does not
establish cause.
(2) Continuance or natural progress of injury or disease. Hospital
care, medical or surgical treatment, or examination cannot cause the
continuance or natural progress of injury or disease for which the
care, treatment, or examination was furnished unless VA's failure to
timely diagnose and properly treat the disease or injury proximately
caused the continuance or natural progress. The provision of training
and rehabilitation services or CWT program cannot cause the continuance
or natural progress of injury or disease for which the services were
provided.
(3) Veteran's failure to follow medical instructions. Additional
disability or death caused by a veteran's failure to
[[Page 62029]]
follow properly given medical instructions is not caused by hospital
care, medical or surgical treatment, or examination.
(d) Establishing the proximate cause of additional disability or
death. The proximate cause of disability or death is the action or
event that directly caused the disability or death, as distinguished
from a remote contributing cause.
(1) Care, treatment, or examination. To establish that
carelessness, negligence, lack of proper skill, error in judgment, or
similar instance of fault on VA's part in furnishing hospital care,
medical or surgical treatment, or examination proximately caused a
veteran's additional disability or death, it must be shown that the
hospital care, medical or surgical treatment, or examination caused the
veteran's additional disability or death (as explained in paragraph (c)
of this section); and
(i) VA failed to exercise the degree of care that would be expected
of a reasonable healthcare provider; or
(ii) VA furnished the hospital care, medical or surgical treatment,
or examination without the veteran's or, in appropriate cases, the
veteran's representative's informed consent. To determine whether there
was informed consent, VA will consider whether the healthcare providers
substantially complied with the requirements of Sec. 17.32 of this
chapter. Minor deviations from the requirements of Sec. 17.32 of this
chapter that are immaterial under the circumstances of a case will not
defeat a finding of informed consent. Consent may be express (i.e.,
given orally or in writing) or implied under the circumstances
specified in Sec. 17.32(b) of this chapter, as in emergency
situations.
(2) Events not reasonably foreseeable. Whether the proximate cause
of a veteran's additional disability or death was an event not
reasonably foreseeable is in each claim to be determined based on what
a reasonable health care provider would have foreseen. The event need
not be completely unforeseeable or unimaginable but must be one that a
reasonable healthcare provider would not have considered an ordinary
risk of the treatment provided. In determining whether an event was
reasonably foreseeable, VA will consider whether the risk of that event
was the type of risk that a reasonable health care provider would have
disclosed in connection with the informed consent procedures of Sec.
17.32 of this chapter.
(3) Training and rehabilitation services or compensated work
therapy program. To establish that the provision of training and
rehabilitation services or a CWT program proximately caused a veteran's
additional disability or death, it must be shown that the veteran's
participation in an essential activity or function of the training,
services, or CWT program provided or authorized by VA proximately
caused the disability or death. The veteran must have been
participating in such training, services, or CWT program provided or
authorized by VA as part of an approved rehabilitation program under 38
U.S.C. chapter 31 or as part of a CWT program under 38 U.S.C. 1718. It
need not be shown that VA approved that specific activity or function,
as long as the activity or function is generally accepted as being a
necessary component of the training, services, or CWT program that VA
provided or authorized.
(e) Department employees and facilities. (1) A Department employee
is an individual:
(i) Who is appointed by the Department in the civil service under
title 38, United States Code, or title 5, United States Code, as an
employee as defined in 5 U.S.C. 2105;
(ii) Who is engaged in furnishing hospital care, medical or
surgical treatment, or examinations under authority of law; and
(iii) Whose day-to-day activities are subject to supervision by the
Secretary of Veterans Affairs.
(2) A Department facility is a facility over which the Secretary of
Veterans Affairs has direct jurisdiction.
(f) Activities that are not hospital care, medical or surgical
treatment, or examination furnished by a Department employee or in a
Department facility. The following are not hospital care, medical or
surgical treatment, or examination furnished by a Department employee
or in a Department facility within the meaning of 38 U.S.C. 1151(a):
(1) Hospital care or medical services furnished under a contract
made under 38 U.S.C. 1703.
(2) Nursing home care furnished under 38 U.S.C. 1720.
(3) Hospital care or medical services, including, but not limited
to, examination, provided under 38 U.S.C. 8153, in a facility over
which the Secretary does not have direct jurisdiction.
(g) Benefits payable under 38 U.S.C. 1151 for a veteran's death
after December 31, 1956. The benefit payable under 38 U.S.C. 1151(a) to
an eligible survivor for a veteran's death occurring after December 31,
1956, is dependency and indemnity compensation.
(Authority: 38 U.S.C. 1151)
Sec. 5.351 Effective dates for awards of benefits under 38 U.S.C.
1151(a).
The effective date for the award of compensation under Sec. 5.350
based on additional disability or death due to hospitalization, medical
or surgical treatment, examinations, vocational rehabilitation
training, or compensated work therapy will be one of the following:
(a) Disability. Date injury or aggravation was suffered if a claim
is received within one year after that date; otherwise, date of receipt
of the claim.
(b) Death. First day of the month in which the veteran's death
occurred, if a claim is received within one year after the date of
death; otherwise, date of receipt of the claim.
(c) Compensated work therapy. For an award of compensation under
Sec. 5.350 based on additional disability or death due to compensated
work therapy, see also Sec. 5.350(a)(2).
(Authority: 38 U.S.C. 5110(c))
Sec. 5.352 Effect on benefits awarded under 38 U.S.C. 1151(a) of
Federal Tort Claims Act compromises, settlements, and judgments entered
after November 30, 1962.
(a) Claims subject to this section. This section applies to claims
received by VA after September 30, 1997. This includes original claims
and claims to reopen or otherwise readjudicate a previous claim for
benefits under 38 U.S.C. 1151(a) or its predecessors.
(b) Offset of veterans' awards of compensation. If a veteran's
disability is the basis of a judgment under 28 U.S.C. 1346(b) awarded,
or a settlement or compromise under 28 U.S.C. 2672 or 2677 entered,
after November 30, 1962, the amount to be offset under 38 U.S.C.
1151(b) from any compensation awarded under 38 U.S.C. 1151(a) is the
entire amount of the veteran's share of the judgment, settlement, or
compromise, including the veteran's proportional share of attorney
fees.
(c) Offset of survivors' awards of dependency and indemnity
compensation. If a veteran's death is the basis of a judgment under 28
U.S.C. 1346(b) awarded, or a settlement or compromise under 28 U.S.C.
2672 or 2677 entered, after November 30, 1962, the amount to be offset
under 38 U.S.C. 1151(b) from any dependency and indemnity compensation
awarded under 38 U.S.C. 1151(a) to a survivor is only the amount of the
judgment, settlement, or compromise representing damages for the
veteran's death the survivor receives in an individual capacity or as
distribution from the decedent veteran's estate of sums included in the
judgment, settlement, or compromise to compensate for harm
[[Page 62030]]
suffered by the survivor, plus the survivor's proportional share of
attorney fees.
(d) Offset of structured settlements. This paragraph applies if a
veteran's disability or death is the basis of a structured settlement
or structured compromise under 28 U.S.C. 2672 or 2677 entered after
November 30, 1962.
(1) The amount to be offset. The amount to be offset under 38
U.S.C. 1151(b) from benefits awarded under 38 U.S.C. 1151(a) is the
veteran's or survivor's proportional share of the cost to the United
States of the settlement or compromise, including the veteran's or
survivor's proportional share of attorney fees.
(2) When the offset begins. The offset of benefits awarded under 38
U.S.C. 1151(a) begins the first month after the structured settlement
or structured compromise has become final that such benefits would
otherwise be paid.
(Authority: 38 U.S.C. 1151)
Sec. 5.353 Effect on benefits awarded under 38 U.S.C. 1151(a) of
Federal Tort Claims Act administrative awards, compromises,
settlements, and judgments finalized before December 1, 1962.
(a) Claims subject to this section. This section applies to claims
received by VA after September 30, 1997. This includes original claims
and claims to reopen or otherwise readjudicate a previous claim for
benefits under 38 U.S.C. 1151(a) or its predecessors.
(b) Effect of administrative awards, compromises, settlements, or
judgments. If a veteran's disability or death was the basis of an
administrative award under 28 U.S.C. 1346(b) made, or a settlement or
compromise under 28 U.S.C. 2672 or 2677 finalized, before December 1,
1962, VA may not award benefits under 38 U.S.C. 1151(a) for any period
after such award, settlement, or compromise was made or became final.
If a veteran's disability or death was the basis of a judgment under 28
U.S.C. 1346(b) that became final before December 1, 1962, VA may award
benefits under 38 U.S.C. 1151(a) for the disability or death unless the
terms of the judgment provide otherwise.
(Authority: 38 U.S.C. 1151)
Sec. Sec. 5.354-5.359 [Reserved]
Ratings for Healthcare Eligibility Only
Sec. 5.360 Service connection of dental conditions for treatment
purposes.
(a) General Principles. Eligibility requirements for dental
treatment are set forth in Sec. 17.161 of this chapter.
(b) Conditions service connected for treatment purposes. VA will
not pay compensation for any of the following dental conditions;
however, these conditions may be service connected solely for providing
outpatient dental treatment:
(1) Treatable carious teeth.
(2) Replaceable missing teeth.
(3) Dental or alveolar abscesses.
(4) Chronic periodontal disease.
(c) Conditions not service connected for treatment purposes. The
following conditions will not be service connected for outpatient
dental treatment purposes:
(1) Calculus.
(2) Acute periodontal disease.
(3) Teeth noted at entry as nonrestorable, regardless of treatment
during service.
(4) Teeth noted as missing at entry, regardless of treatment during
service.
(d) Rating principles. VA will determine service connection for
establishing eligibility for outpatient dental treatment using the
following principles:
(1) VA will consider each defective or missing tooth and each
disease of the teeth and periodontal tissues separately to determine
whether the condition was incurred or aggravated in line of duty during
active service.
(2) VA will determine whether the condition is due to combat or
other in-service trauma.
(3) VA will consider whether the veteran was interned as a prisoner
of war.
(4) VA will consider the condition of teeth and periodontal tissues
at the time of entry into active duty.
(e) Aggravation. Notations of conditions made at entry to service
and treatment of such conditions during service (including, but not
limited to, fillings, extractions, and placement of a prosthesis) will
not be considered as evidence of aggravation, unless additional
pathology developed after 180 days or more of active military service.
(1) Teeth noted as normal at entry will be service connected for
treatment purposes if they were filled or extracted after 180 days or
more of active military service.
(2) Teeth noted as filled at entry will be service connected for
treatment purposes if they were extracted, or if the existing filling
was replaced, after 180 days or more of active military service.
(3) Teeth noted as carious but restorable at entry will not be
service connected for treatment purposes on the basis that they were
filled during service. Service connection may be established for
treatment purposes if new caries developed 180 days or more after such
teeth were filled.
(4) Teeth noted as carious but restorable at entry will be service
connected for treatment purposes if extraction was required after 180
days or more of active military service.
(5) Third molars will not be service connected for treatment
purposes unless disease or pathology of the tooth developed after 180
days or more of active military service, or was due to combat or in-
service trauma.
(6) Impacted or malposed teeth and other developmental defects will
not be service connected for treatment purposes unless disease or
pathology of the teeth developed after 180 days or more of active
military service.
(7) Teeth extracted because of chronic periodontal disease will be
service connected for treatment purposes only if they were extracted
after 180 days or more of active military service.
(Authority: 38 U.S.C. 1712)
Sec. 5.361 Healthcare eligibility of persons administratively
discharged under other-than-honorable conditions.
(a) General. VA will provide healthcare and related benefits
authorized by chapter 17 of title 38 U.S.C. to certain former service
persons with administrative discharges under other-than-honorable
conditions for any disability incurred or aggravated during active
military service in line of duty.
(b) Eligibility criteria. VA will use the same eligibility criteria
that are applicable to determinations of incurrence in service and of
incurrence in the line of duty when there is no character of discharge
bar to determine a claimant's health-care eligibility.
(c) Characterization of discharge. VA will not furnish healthcare
and related benefits for any disability incurred in or aggravated
during a period of service terminated by a bad conduct discharge or
when one of the character of discharge bars listed in Sec. 3.12(c) of
this chapter applies.
(Authority: Pub. L. 95-126, 91 Stat. 1106)
Sec. 5.362 Presumption of service incurrence of active psychosis for
purposes of hospital, nursing home, domiciliary, and medical care.
(a) Presumption of service incurrence for active psychosis. For
purposes of determining eligibility for hospital, nursing home,
domiciliary, and medical care under chapter 17 of title 38, United
States Code, VA will presume incurred in active military service any
active psychosis developed by a veteran under the circumstances
described in paragraph (b) of this section.
(b) Requirements. In order to be entitled to a presumption of
service incurrence for active psychosis for purposes of this section, a
veteran must have served during one of the periods of
[[Page 62031]]
war specified in the following table and developed the psychosis within
two years after discharge from active military service and before the
date specified in the following table that corresponds to the period of
war during which the veteran served.
------------------------------------------------------------------------
Must have developed active
psychosis within two years
Veterans who served during: after discharge from active
military service and before:
------------------------------------------------------------------------
World War II.............................. July 26, 1949.
Korean conflict........................... February 1, 1957.
Vietnam era............................... May 8, 1977.
Persian Gulf War.......................... The end of two-year period
beginning on the last day
of the Persian Gulf War.
------------------------------------------------------------------------
Cross Reference: Sec. 5.20, ``Dates of periods of war.''
(Authority: 38 U.S.C. 101(16), 105, 501(a), 1702)
Sec. 5.363 Determination of service connection for former members of
the Armed Forces of Czechoslovakia or Poland.
The agency of original jurisdiction will determine whether the
condition for which treatment is claimed by former members of the Armed
Forces of Czechoslovakia or Poland under 38 U.S.C. 109(c) is service
connected. This determination will be made using the same criteria that
apply to determinations of service connection based on service in the
Armed Forces of the United States.
(Authority: 38 U.S.C. 501(a))
Sec. 5.364 [Reserved]
Miscellaneous Service-Connection Regulations
Sec. 5.365 Claims based on the effects of tobacco products.
(a) Except as provided in paragraph (b) of this section, a
disability or death will not be service connected on any basis,
including secondary service connection under Sec. 3.310 of this
chapter, if it resulted from injury or disease attributable to the
veteran's use during service of tobacco products, such as cigars,
cigarettes, smokeless tobacco, pipe tobacco, and roll-your-own tobacco.
(b) Paragraph (a) of this section does not prohibit service
connection if any of the following are true:
(1) The disability or death resulted from injury or disease that is
otherwise shown to have been incurred or aggravated during service,
which means that the disability or death can be service connected on
some basis other than the veteran's use of tobacco products during
service or that the disability became manifest or death occurred during
service;
(2) The disability or death resulted from injury or disease that
appeared to the required degree of disability within any applicable
presumptive period under Sec. Sec. 5.260, 5.261, 5.262, 5.263, 5.264,
5.265, 5.267, or 5.268; or
(3) Service connection is established for ischemic heart disease or
other cardiovascular disease under Sec. 3.310(c) of this chapter as
secondary to a disability not caused by the use of tobacco products
during service.
(Authority: 38 U.S.C. 501(a), 1103, 1103 note)
Sec. 5.366 Disability due to impaired hearing.
VA will consider impaired hearing to be a disability when any of
the following three criteria is satisfied:
(a) The auditory threshold in any of the frequencies of 500, 1000,
2000, 3,000, or 4000 Hertz is 40 decibels or greater;
(b) The auditory thresholds for at least three of the frequencies
of 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or
(c) Speech recognition scores using the Maryland CNC Test are less
than 94 percent.
(Authority: 38 U.S.C. 1110)
Sec. 5.367 Civil service preference ratings.
For certifying civil service disability preference only, a service-
connected disability may be assigned a rating of less than 10 percent.
Any directly or presumptively service-connected injury or disease that
exhibits some extent of actual impairment may be held to exist at the
level of less than 10 percent. For disabilities incurred in combat,
however, no actual impairment is required.
(Authority: 38 U.S.C. 501(a))
Sec. 5.368 Basic eligibility determinations: home loan and education
benefits.
(a) Loans. (1) General. Eligibility of certain veterans (listed in
paragraph (a)(2) of this section) for a loan under 38 U.S.C. chapter 37
requires a determination that the veteran was discharged or released
because of a service-connected disability, or that the official service
department records show that he or she had, at the time of separation
from service, a service-connected disability that in medical judgment
would have warranted a discharge for disability. These determinations
are subject to the presumption of soundness under Sec. 3.304(b) of
this chapter. Determinations based on World War II, Korean conflict,
and Vietnam era service are also subject to the presumption of
aggravation under Sec. 3.306(b) of this chapter, and determinations
based on service after January 31, 1955, and before August 5, 1964; or
after May 7, 1975, are subject to the presumption of aggravation under
Sec. 3.306 (a) and (c) of this chapter. This paragraph is also
applicable, regardless of length of service, in determining eligibility
to the maximum period of entitlement based on discharge or release for
a service-connected disability. (See Sec. 5.39, ``Minimum active duty
service requirement for VA benefits.'')
(2) Veterans affected. The veterans affected by this paragraph are:
(i) Veteran of World War II, the Korean conflict, or the Vietnam
era who served for less than 90 days; or
(ii) Veterans who served less than 181 days on active duty as
defined in Sec. Sec. 36.4301 and 36.4501, and whose dates of service
were:
(A) After July 25, 1947, and before June 27, 1950;
(B) After January 31, 1955, and before to August 5, 1964; or
(C) After May 7, 1975.
(Authority: 38 U.S.C. 3702, 3707)
(b) Veterans' educational assistance. (1) A determination is
required as to whether a veteran was discharged or released from active
duty service because of a service-connected disability, or whether the
official service department records show that the veteran had at time
of separation from service a service-connected disability which in
medical judgment would have warranted discharge for disability,
whenever any of the following circumstances exist:
(i) The veteran applies for benefits under 38 U.S.C. chapter 32,
the minimum active duty service requirements of 38 U.S.C. 5303A apply
to him or her, and the veteran would be eligible for such benefits only
if:
(A) He or she was discharged or released from active duty for a
disability incurred or aggravated in the line of duty; or
(B) He or she has a disability that VA has determined to be
compensable under 38 U.S.C. chapter 11; or
(ii) The veteran applies for benefits under 38 U.S.C. chapter 30
and:
(A) The evidence of record does not clearly show either that the
veteran was discharged or released from active duty for disability or
that the veteran's discharge or release from active duty was unrelated
to disability, and
(B) The veteran is eligible for basic educational assistance except
for the minimum length of active duty service requirements of Sec.
21.7042(a) or Sec. 21.7044(a) of this chapter.
[[Page 62032]]
(2) A determination is required as to whether a veteran was
discharged or released from service in the Selected Reserve for a
service-connected disability or for a medical condition which
preexisted the veteran's having become a member of the Selected Reserve
and which VA determines is not service connected when the veteran
applies for benefits under 38 U.S.C. chapter 30 and:
(i) The veteran would be eligible for basic educational assistance
under that chapter only if he or she was discharged from the Selected
Reserve for a service-connected disability or for a medical condition
which preexisted the veteran's having become a member of the Selected
Reserve and which VA finds is not service connected, or
(ii) The veteran is entitled to basic educational assistance and
would be entitled to receive it at the rates stated in Sec. 21.7136(a)
or Sec. 21.7137(a) of this chapter only if he or she was discharged
from the Selected Reserve for a service-connected disability or for a
medical condition which preexisted the veteran's having become a member
of the Selected Reserve and which VA finds is not service connected.
(3) A determination is required as to whether a reservist has been
unable to pursue a program of education due to a disability which has
been incurred in or aggravated by service in the Selected Reserve when:
(i) The reservist is otherwise entitled to educational assistance
under 10 U.S.C. chapter 1606, and
(ii) He or she applies for an extension of his or her eligibility
period.
(4) The determinations required by paragraphs (b)(1) through (b)(3)
of this section are subject to the presumptions of soundness under
Sec. 3.304(b) of this chapter and aggravation under Sec. 3.306(a) and
(c) of this chapter, based on service rendered after May 7, 1975.
(Authority: 38 U.S.C. 3011(a)(1)(A)(ii), 3012(b)(1), 3202(1)(A), 10
U.S.C. 16133(b))
Sec. 5.369 [Reserved]
[FR Doc. E8-23825 Filed 10-16-08; 8:45 am]
BILLING CODE 8320-01-P