[Federal Register Volume 60, Number 196 (Wednesday, October 11, 1995)]
[Rules and Regulations]
[Pages 52863-52864]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-25129]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AH48
Examinations
AGENCY: Department of Veterans Affairs.
ACTION: Interim final rule.
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SUMMARY: This document amends the Department of Veterans Affairs (VA)
adjudication regulations concerning compensation and pension claims
filed by veterans, surviving spouses, or parents. This changes the
language for authorizing VA examinations by providing that a VA
examination will be authorized where there is a well-grounded claim for
disability compensation but where the medical evidence accompanying the
claim is not adequate for rating purposes. This more accurately
reflects statutory language and caselaw requirements concerning such VA
examinations.
DATES: The effective date of this interim final rule is October 11,
1995. Comments must be received on or before December 11, 1995.
ADDRESSES: Mail written comments to: Director, Office of Regulations
Management (02D), Department of Veterans Affairs, 810 Vermont Avenue
NW., Washington, DC 20420, or hand-deliver written comments to: Office
of Regulations Management, Room 1176, 801 Eye Street NW., Washington,
DC 20001. Comments should indicate that they are in response to ``RIN
2900-AH48.'' All written comments received will be available for public
inspection in the Office of Regulations Management, Room 1176, 801 Eye
Street NW., Washington, DC 20001, between the hours 8:00 a.m. and 4:30
p.m., Monday through Friday (except holidays).
FOR FURTHER INFORMATION CONTACT: Paul Trowbridge, Consultant,
Regulations Staff, Compensation and Pension Service, Veterans Benefits
Administration, 810 Vermont Avenue NW., Washington, DC 20420, (202)
273-7210.
SUPPLEMENTARY INFORMATION: For many years VA regulations provided that
a compensation claim could not be rated without a current VA
examination, or a report deemed to be the equivalent of a VA
examination. In general, hospital reports (government or private) were
deemed to be VA examinations if otherwise adequate for rating purposes,
but private physicians' reports were not.
On July 14, 1994, VA published a final rule in the Federal Register
(59 FR 35851) amending 38 CFR 3.326 to permit acceptance of a private
physician's statement for the purpose of rating claims for increased
compensation due to the increased severity of service-connected
disabilities. A private physician's statement, however, was still not
acceptable for rating an original compensation claim.
On November 2, 1994, the Veterans' Benefits Improvements Act of
1994, Pub. L. 103-446, was signed into law. Section 301 of Pub. L. 103-
446 underscored the Secretary of Veterans Affairs' discretionary
authority to accept the report of a private physician's examination
that is otherwise adequate for rating purposes to establish entitlement
to any compensation or pension benefit. A final rule enabling the
Secretary to exercise that discretionary authority was published on May
24, 1995 in the Federal Register (60 FR 27409). That final rule amended
38 CFR 3.326(d) as well as Secs. 3.157, 3.327, and 3.352.
Previously, paragraph (a) of Sec. 3.326 indicated that a VA
examination would be authorized where the reasonable probability of a
valid claim was indicated in any compensation or pension claim filed by
a veteran, surviving spouse, or parent, whether an original or reopened
claim or a claim for increase. This document revises paragraph (a) to
state that a VA examination will be authorized where there is a ``well-
grounded claim'' for disability compensation or pension but where the
medical evidence accompanying the claim is not adequate for rating
purposes. We believe this will not cause a substantial change in the
criteria for authorizing VA examinations; however, this change is made
to more accurately reflect statutory language and caselaw requirements
concerning such VA examinations.
The Court of Veterans Appeals has held that scheduling a VA
examination may be required as part of VA's duty to assist the claimant
under 38 U.S.C. 5107(a), and that the duty to assist attaches when a
claim is well-grounded, i.e., when the claim is plausible, meritorious
on its own, or capable of substantiation. See, e.g., Betties v. Brown,
6 Vet. App. 333, 336 (1993).
The amendments made by this document do not affect the provisions
already in the place that require former prisoners of war to be
afforded a complete examination at a VA hospital
[[Page 52864]]
or outpatient clinic prior to any rating action denying monetary
benefits.
Also, nonsubstantive changes are made to delete provisions that no
longer apply and to simply and clarify other provisions.
Under 5 U.S.C. 553 there is a basis for dispensing with prior
notice and comment and for dispensing with a 30-day delay of the
effective date since the interim rule consists of VA policy and is
interpretive in nature.
The Secretary hereby certifies that this interim final rule will
not have a significant economic impact on a substantial number of small
entities as they are defined in the Regulatory Flexibility Act (RFA), 5
U.S.C. 601-612. The interim final rule would not directly affect any
small entities. Only VA beneficiaries could be directly affected.
Therefore, pursuant to 5 U.S.C. 605(b), the interim final rule is
exempt from the initial and final regulatory flexibility analysis
requirements of sections 603 and 604.
The Catalog of Federal Domestic Assistance program numbers are
64.100, 64.104, 64,105, 64.106, 64.109, and 64.110.
List of Subjects in 38 CFR Part 3
Administrative practice and procedure, claims, Health care,
Individuals with disabilities, Pensions, Veterans.
Approved: July 31, 1995.
Jesse Brown,
Secretary, Veterans Affairs.
For the reasons set forth in the preamble, 38 CFR part 3 is amended
as follows:
PART 3--ADJUDICATION
Subpart A--Pension, Compensation, and Dependency and Indemnity
Compensation
1. The authority citation for part 3, subpart A continues to read
as follows:
Authority: 38 U.S.C. 501(a), unless otherwise noted.
2. Section 3.326 is revised to read as follows:
Sec. 3.326 Examinations.
For purposes of this section, the term examination includes periods
of hospital observation when required by VA.
(a) Where there is a well-grounded claim for disability
compensation or pension but medical evidence accompanying the claim is
not adequate for rating purposes, a Department of Veterans Affairs
examination will be authorized. This paragraph applies to original and
reopened claims as well as claims for increase submitted by a veteran,
surviving spouse, parent, or child. Individuals for whom an examination
has been scheduled are required to report for the examination.
(b) Provided that it is otherwise adequate for rating purposes, any
hospital report, or any examination report, from any government or
private institution may be accepted for rating a claim without further
examination. However, monetary benefits to a former prisoner of war
will not be denied unless the claimant has been offered a complete
physical examination conducted at a Department of Veterans Affairs
hospital or outpatient clinic.
(c) Provided that it is otherwise adequate for rating purposes, a
statement from a private physician may be accepted for rating a claim
without further examination.
(Authority: 38 U.S.C. 5107(a))
[FR Doc. 95-25129 Filed 10-10-95; 8:45 am]
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