[Federal Register Volume 59, Number 21 (Tuesday, February 1, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-2110]
[[Page Unknown]]
[Federal Register: February 1, 1994]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AG50
Examinations
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: The Department of Veterans Affairs (VA) is proposing to amend
its regulations concerning examinations acceptable for VA rating
purposes. The amendment would increase the number of situations in
which a private physician's statement may be accepted as a VA
examination. The intended effect of the proposal is to allow earlier
rating action on acceptable medical evidence with no additional burden
to either the claimant or VA.
DATES: Comments must be received on or before April 4, 1994. Comments
will be available for public inspection until April 12, 1994.
ADDRESSES: Interested persons are invited to submit written comments,
suggestions, or objections regarding this amendment to the Secretary of
Veterans Affairs (271A), Department of Veterans Affairs, 810 Vermont
Avenue, NW., Washington, DC 20420. All written comments will be
available for public inspection only in the Veterans Services Unit,
room 170, at the above address, between the hours of 8 a.m. and 4:30
p.m., Monday through Friday (except holidays).
FOR FURTHER INFORMATION CONTACT: Steven Thornberry, Consultant,
Regulations Staff, Compensation and Pension Service, Veterans Benefits
Administration, 810 Vermont Avenue, NW., Washington, DC 20420,
telephone (202) 233-3005.
SUPPLEMENTARY INFORMATION: Section 3.326 of title 38, Code of Federal
Regulations, requires VA to authorize a medical examination where a
reasonable probability of a valid claim for disability compensation or
pension benefits is indicated. A ``claim for disability compensation or
pension benefits'' means an original or reopened claim or a claim for
increased benefits. Section 3.326 also establishes alternative types of
medical evidence which in specified cases may be deemed a ``Department
of Veterans Affairs examination'' and accepted for rating purposes.
Although a statement from a private physician which includes clinical
manifestations and substantiation of a diagnosis through such medically
acceptable diagnostic techniques as pathological studies, X-rays, and
laboratory tests may be accepted to rate pension and certain other
claims, it may not be accepted as the sole basis for a rating decision
in compensation claims.
We propose to amend Sec. 3.326(d) to permit acceptance of a private
physician's statement for rating purposes in claims for increased
compensation due to the increased severity of service-connected
disabilities. Since the basic issue of service connection has already
been resolved in these claims, a statement from a private physician
which meets the requirements of Sec. 3.326(d) contains medical evidence
acceptable for rating purposes with no need for verification through a
VA examination. Furthermore, acceptance of this type of medical
evidence will permit earlier decisions on claims for increase by
removing the need for VA to schedule, conduct, and review the results
of an additional examination.
We also propose to clarify the other types of claims in which a
private physician's statement may be accepted for rating purposes by
revising the current wording of the list of such claims in
Sec. 3.326(d). We further propose to remove the last sentence of
Sec. 3.326(b), which states that evidence of permanent and total
disability will not be required in pension claims for veterans who have
attained age 65. The Omnibus Budget Reconciliation Act of 1990, Public
Law 101-508, eliminated the presumption of total disability for these
veterans with respect to claims filed after October 31, 1990. Finally,
we propose to correct the authority citation in Sec. 3.351(a)(2).
We are proposing to make this amendment effective 30 days after
date of publication of the final rule.
The Secretary hereby certifies that these regulatory amendments
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 reason for this certification is that
these amendments would not directly affect any small entities. Only VA
beneficiaries could be directly affected. Therefore, pursuant to 5
U.S.C. 605(b), these amendments are exempt from the initial and final
regulatory flexibility analysis requirements of sections 603 and 604.
List of Subjects in 38 CFR Part 3
Administrative practice and procedure, Claims, Handicapped, Health
care, Pensions, Veterans.
Approved: October 4, 1993.
Jesse Brown,
Secretary of Veterans Affairs.
For the reasons set forth in the preamble, 38 CFR part 3 is
proposed to be amended to read as follows:
Part 3--Adjudication
Subpart A--Pension, Compensation, 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.
Sec. 3.326 [Amended]
2. In Sec. 3.326, paragraph (b) is amended by removing the last
sentence.
3. In Sec. 3.326, paragraph (d) is revised and an authority
citation is added to read as follows:
Sec. 3.326 Examinations.
* * * * *
(d) A statement from a private physician that includes clinical
manifestations and substantiation of diagnosis by findings of
diagnostic techniques generally accepted by medical authorities, such
as pathological studies, X-rays, and laboratory tests as appropriate,
may be accepted for rating the following claims without further
examination, provided it is otherwise adequate for rating purposes: (1)
A veteran's claim for increased compensation based either on the
increased severity of a service-connected disability or on his or her
spouse's need for aid and attendance under 38 U.S.C. 1115(1)(E); (2) a
veteran's pension claim, including housebound and aid and attendance
benefits; (3) a surviving spouse's claim for housebound or aid and
attendance benefits; (4) a surviving parent's claim for aid and
attendance benefits; or (5) a claim by or on behalf of a child based on
permanent incapability of self-support (see Sec. 3.356 of this part).
(Authority: 38 U.S.C. 501(a))
Sec. 3.351 [Amended]
4. In Sec. 3.351(a)(2), the authority citation is revised to read
as follows: ``(Authority: 38 U.S.C. 1115(1)(E)).''
[FR Doc. 94-2110 Filed 1-31-94; 8:45 am]
BILLING CODE 8320-01-P
