[Federal Register Volume 62, Number 107 (Wednesday, June 4, 1997)]
[Proposed Rules]
[Pages 30547-30548]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-14509]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AI42
Claims Based on Aggravation of a Nonservice-Connected Disability
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: The Department of Veterans Affairs (VA) is proposing to amend
its adjudication regulations concerning secondary service connection
for certain disabilities. This proposal is based on a recent decision
by the United States Court of Veterans Appeals (CVA). The intended
effect of this amendment is to conform VA regulations to the CVA
decision, which clarified the circumstances under which veterans may be
compensated for disabilities related to service-connected conditions.
DATES: Comments must be received by VA on or before August 4, 1997.
ADDRESSES: Mail or hand deliver written comments to: Director, Office
of Regulations Management, Room 1154, 810 Vermont Ave., NW.,
Washington, DC 20420. Comments should indicate that they are submitted
in response to ``RIN 2900-AI42.'' All written comments will be made
available for public inspection at the above address in the Office of
Regulations Management, Room 1158, between the hours of 8:00 a.m. and
4:30 p.m., Monday through Friday (except holidays).
FOR FURTHER INFORMATION CONTACT: Judith Veres, Consultant, Judicial
Review Staff, Compensation and Pension Service, Veterans Benefits
Administration, Department of Veterans Affairs, 810 Vermont Ave., NW.,
Washington, DC 20420, (202) 273-7240.
SUPPLEMENTARY INFORMATION: Under the provisions of 38 U.S.C. 1110 and
1131, VA may establish service connection for disabilities resulting
from disease or injury incurred or aggravated during a veteran's period
of active military, naval, or air service. Once service connection is
established for a veteran's disability, VA may authorize monetary
compensation depending on the disability's level of severity. In
addition, under 38 CFR 3.310, VA may establish service connection for a
disability which is proximately due to or the result of a service-
connected disease or injury.
In Allen v. Brown, 7 Vet. App. 439, 448 (1995), issued March 17,
1995, CVA held that, as a matter of law, when aggravation of a
veteran's nonservice-connected condition is proximately due to or the
result of a service-connected condition, the veteran is entitled to
compensation for the degree of disability (but only that degree) over
and above the degree of disability existing prior to aggravation. Prior
to CVA's holding, VA paid compensation for a disability on a secondary
basis only if the secondary condition was entirely caused by a service-
connected disability. To conform Sec. 3.310 to CVA's decision, VA is
proposing to amend 38 CFR 3.310 to authorize compensation for the
incremental increase in severity of a nonservice-connected disability
which is proximately due to or the result of a service-connected
condition.
In order to determine whether, and to what extent, a service-
connected disease or injury has aggravated a non service-connected
disability, VA must be able to determine the pre-aggravation severity
of the disability in question. We, therefore, propose to stipulate that
VA will not concede aggravation unless it has medical evidence, which
pre-existed the aggravation, sufficient to establish the pre-
aggravation severity of the condition. Since some conditions are
inherently progressive and worsen naturally over time, we propose to
specify that VA will not service-connect any increase in severity that
is due to natural progression. These requirements would be consistent
with the manner in which VA determines the degree of in-service
aggravation of pre-existing disabilities, i.e., by comparing the
severity of the condition when the veteran entered and left active
military
[[Page 30548]]
service and excluding from consideration any increase in severity that
is due to the natural progression of the condition. As with all other
disabilities evaluated for VA purposes, the level of compensation would
be determined under the provisions of VA's Schedule for Rating
Disabilities.
The Secretary hereby certifies that this 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. The reason for this certification is that this
amendment would not directly affect any small entities. Only VA
beneficiaries could be directly affected. Therefore, pursuant to 5
U.S.C. 605(b), this amendment is exempt from the initial and final
regulatory flexibility analysis requirements of sections 603 and 604.
The Catalog of Federal Domestic Assistance program number is
64.109.
List of Subjects in 38 CFR Part 3
Administrative practice and procedure, Claims, Disability benefits,
Health care, Pensions, Radioactive materials, Veterans, Vietnam.
Approved: May 27, 1997.
Jesse Brown,
Secretary of Veterans Affairs.
For the reasons set out in the preamble, 38 CFR part 3 is proposed
to be amended as set forth below:
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 3.310 is amended by revising the section ledading; by
redesignating paragraph (b) as paragraph (c); and by adding a new
paragraph (b) to read as follows:
Sec. 3.310 Disabilities that are proximately due to, or aggravated
by, service-connected disease or injury.
* * * * *
(b) Aggravation of nonservice-connected disabilities. Any increase
in severity of a nonservice-connected disability that is proximately
due to or the result of a service-connected disease or injury, rather
than the normal progression of the disability, shall be service-
connected. However, VA will not concede that a nonservice-connected
disability was aggravated by a service-connected disease or injury in
the absence of medical evidence extant before the aggravation
sufficient to establish the pre-aggravation severity of the disability.
The rating activity will determine the pre- and post-aggravation levels
of severity under the Schedule for Rating Disabilities and determine
the extent of aggravation by deducting the pre-aggravation level of
severity, as well as any increase in severity due to the normal
progression of the disability, from the current level.
(Authority: 38 U.S.C. 1110 and 1131)
* * * * *
[FR Doc. 97-14509 Filed 6-3-97; 8:45 am]
BILLING CODE 8320-01-P
