[Federal Register Volume 76, Number 52 (Thursday, March 17, 2011)]
[Proposed Rules]
[Pages 14600-14602]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-6148]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AN28
Dental Conditions
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its
adjudication regulations regarding service connection of dental
conditions for treatment purposes. The regulations currently state
several principles governing determinations by VA's Veterans Benefits
Administration (VBA) of service connection of dental conditions for the
purpose of establishing eligibility for dental treatment by VA's
Veterans Health Administration (VHA). We propose to clarify that those
principles apply only when VHA requests information or a rating from
VBA for those purposes. The amendments are to clarify existing
regulatory provisions and to reflect the respective responsibilities of
VHA and VBA in determinations concerning eligibility for dental
treatment.
DATES: Comments must be received by VA on or before May 16, 2011.
ADDRESSES: Written comments may be submitted through
www.Regulations.gov; by mail or hand-delivery to Director, Regulations
Management (02REG), Department of Veterans Affairs, 810 Vermont Avenue,
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-AN28--Dental Conditions.''
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 at
www.Regulations.gov.
FOR FURTHER INFORMATION CONTACT: Tom Kniffen, Regulations Staff (211D),
Compensation and Pension Service, Veterans Benefits Administration,
Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC
20420, (202) 461-9725. (This is not a toll-free number.)
SUPPLEMENTARY INFORMATION: VA's adjudication regulation regarding
service connection of dental conditions for treatment purposes, 38 CFR
3.381, identifies circumstances under which dental conditions that may
not qualify as disabilities for purposes of VA disability compensation
may nevertheless be service connected for purposes of VA dental
treatment under 38 U.S.C. 1712 and 38 CFR 17.161. Because VHA has
primary responsibility for determining eligibility for dental
treatment, VBA will prepare a rating decision under Sec. 3.381 only
when VHA requests such a rating or information necessary to assist in
its determination. This circumstance is not clearly stated in the
current regulation. Accordingly, we propose to amend Sec. 3.381 to
state this requirement.
VA's statute and regulation regarding dental conditions, 38 U.S.C.
1712 and 38 CFR 17.161, contain the eligibility requirements for dental
treatment. Eligibility for dental treatment is extremely limited. VHA
will provide certain dental treatment to veterans:
Who have a service-connected compensable dental condition
(i.e., those subject to service connection for compensation purposes
under the 9900 diagnostic code series) (Class I)
[[Page 14601]]
Who have a service-connected noncompensable dental
condition (not subject to compensation) shown to have been in existence
at the time of discharge or release from active service, which took
place after September 30, 1981 (Class II), if:
[cir] The veteran served at least 180 days (or 90 days if a
veteran of the Gulf War era), and
[cir] The veteran's DD214 does not bear certification that the
veteran was provided, within 90 days immediately prior to discharge or
release, a complete dental examination (including dental x-rays) and
all appropriate dental treatment indicated by the examination to be
needed, and
[cir] Application for treatment is received within 180 days of
discharge, and
[cir] A VA dental examination is completed within six months after
discharge or release, unless delayed through no fault of the veteran.
[cir] Note: Treatment under Class II is limited to a one-time
correction of service-connected noncompensable dental conditions.
Who have a service-connected noncompensable dental
condition or disability adjudicated as resulting from combat wounds or
service trauma (Class II(a)).
Who are homeless or are otherwise enrolled veterans who
are eligible for a one-time course of dental care under 38 U.S.C. 2062
(Class II(b)).
Who are former prisoners of war, as determined by the
concerned military service department (Class II(c)).
Who have a nonservice-connected dental disability
professionally determined to be aggravating a service-connected medical
condition (Class III).
Who are rated totally disabled due to service-connected
disability (either a 100 percent schedular evaluation or entitled to
individual unemployability) (Class IV).
Who are approved for vocational rehabilitation training
under 38 U.S.C. chapter 31 and who require dental treatment to
participate in training (Class V).
Who are scheduled for admission or otherwise receiving
care and services under 38 U.S.C. chapter 17 if dental care is
reasonably necessary to the provision of such care and services, i.e.,
a dental condition is complicating a medical condition currently under
treatment. (Examples: patients scheduled for cardiac surgery, knee,
hip, joint replacement surgery, or organ transplant surgery may receive
pre-bed care to eliminate dental infection prior to their surgery and
help insure successful medical treatment) (Class VI).
VHA will usually be able to determine eligibility for dental
treatment without referral to VBA. However, VHA shall request
information or a rating from VBA in the following circumstances:
To determine whether the veteran has a compensable
service-connected disability (subject to service connection for
compensation purposes).
To determine whether the veteran has a service-connected
condition for which compensation is not payable.
To determine whether there is dental disability due to
combat wounds or service trauma.
To determine prisoner of war status.
To determine whether the veteran is totally disabled due
to service-connected disability.
VHA may submit a request for a rating for eligibility for treatment
for any dental condition. However, consistent with the qualifying
conditions and the limitations of eligibility under 38 CFR 3.381 and 38
CFR 17.161, VBA would deny any claim that does not qualify for VHA
dental treatment, including any claim for treatment of periodontal
disease or calculus, unless the condition meets regulatory eligibility
criteria.
If the veteran files a claim for disability compensation that
includes as an issue a compensable dental condition under the rating
schedule criteria, VBA would prepare a rating and notify VHA. If a
veteran has not filed a claim for disability compensation, but goes to
a VHA dental clinic requesting treatment, VHA will request a
determination from VBA when needed to address the issues described
above affecting eligibility under Class I, Class II, Class II(a), Class
II(c), or Class IV. Furthermore, VHA is responsible for notifying the
veteran of their eligibility determination.
When a veteran submits a claim for dental treatment directly to a
VBA regional office, VBA will not provide a rating, but instead VBA
will refer the claim to the VHA outpatient clinic, which is responsible
for such claims.
Therefore, we propose to redesignate paragraphs (a) through (f) as
paragraphs (b) through (g) and to add a new paragraph (a) that explains
the situations when VHA will refer a claim to VBA. We also propose to
amend redesignated paragraph (b) to clarify what conditions will be
service connected for treatment purposes. Additionally, we propose to
remove the following sentence from redesignated paragraph (c): ``When
applicable, the rating activity will determine whether the condition is
due to combat or other in-service trauma, or whether the veteran was
interned as a prisoner of war.'' This sentence is being removed because
it is repetitive of portions of proposed paragraph (a).
Paperwork Reduction Act
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 rule 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 rule would not affect any small entities.
Only certain VA beneficiaries could be directly affected. Therefore,
pursuant to 5 U.S.C. 605(b), this proposed rule 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.
VA has examined the economic, interagency, budgetary, legal, and
policy implications of this regulatory action and has concluded that it
is not a significant regulatory action under Executive Order 12866.
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that
[[Page 14602]]
agencies prepare an assessment of anticipated costs and benefits before
issuing any rule that may result in the expenditure by State, local,
and tribal governments, in the aggregate, or by the private sector, of
$100 million or more (adjusted annually for inflation) in any given
year. This proposed rule would have no such effect on State, local, and
tribal governments, or on the private sector.
Catalog of Federal Domestic Assistance Numbers and Titles
The Catalog of Federal Domestic Assistance program numbers and
titles for this rule are 64.011, Veterans Dental Care; and 64.109,
Veterans Compensation for Service-Connected Disability.
Signing Authority
The Secretary of Veterans Affairs, or designee, approved this
document and authorized the undersigned to sign and submit the document
to the Office of the Federal Register for publication electronically as
an official document of the Department of Veterans Affairs. John R.
Gingrich, Chief of Staff, Department of Veterans Affairs, approved this
document on March 9, 2011, for publication.
List of Subjects in 38 CFR Part 3
Administrative practice and procedure, Claims, Disability benefits,
Health care, Pensions, Radioactive materials, Veterans, Vietnam.
Dated: March 11, 2011.
William F. Russo,
Director of Regulations Management, Office of the General Counsel,
Department of Veterans Affairs.
For the reasons set out in the preamble, VA proposes to amend 38
CFR part 3 as follows:
PART 3--ADJUDICATION
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. Amend Sec. 3.381 by:
a. Redesignating paragraphs (a) through (f) as paragraphs (b)
through (g).
b. Adding new paragraph (a).
c. Revising redesignated paragraph (b).
d. Removing from redesignated paragraph (c) the following sentence:
``When applicable, the rating activity will determine whether the
condition is due to combat or other in-service trauma, or whether the
veteran was interned as a prisoner of war.''
The addition and revision read as follows:
Sec. 3.381 Service connection of dental conditions for treatment
purposes.
(a) The Veterans Benefits Administration (VBA) will adjudicate a
claim for service connection of a dental condition for treatment
purposes after the Veterans Health Administration determines a veteran
meets the basic eligibility requirements of Sec. 17.161 of this
chapter and requests VBA make a determination on questions that
include, but are not limited to, any of the following:
(1) Former Prisoner of War status;
(2) Whether the veteran has a compensable or noncompensable
service-connected dental condition or disability;
(3) Whether the dental condition or disability is a result of
combat wounds;
(4) Whether the dental condition or disability is a result of
service trauma; or
(5) Whether the veteran is totally disabled due to a service-
connected disability.
(b) Treatable carious teeth, replaceable missing teeth, dental or
alveolar abscesses, and periodontal disease are not compensable
disabilities, but may nevertheless be service connected solely for the
purpose of establishing eligibility for outpatient dental treatment as
provided for in Sec. 17.161 of this chapter. These conditions and
other dental conditions or disabilities that are noncompensably rated
under Sec. 4.150 of this chapter may be service connected for purposes
of Class II or Class II(a) dental treatment under Sec. 17.161 of this
chapter.
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[FR Doc. 2011-6148 Filed 3-16-11; 8:45 am]
BILLING CODE 8320-01-P