[Federal Register Volume 76, Number 221 (Wednesday, November 16, 2011)]
[Rules and Regulations]
[Pages 70883-70885]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-29579]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AN64
Clothing Allowance
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: The Department of Veterans Affairs (VA) amends its regulations
regarding clothing allowances. The amendment provides for an annual
clothing allowance for each qualifying prosthetic or orthopedic
appliance worn or used by a veteran for a service-connected disability
or disabilities that wears out or tears a single article of the
veteran's clothing and for each physician-prescribed medication used by
a veteran for a skin condition that is due to a service-connected
disability that affects a single outergarment. The amendment also
provides two annual clothing allowances if a veteran wears or uses more
than one qualifying prosthetic or orthopedic appliance, physician-
prescribed medication for more than one skin condition, or an appliance
and a medication for a service-connected disability or disabilities and
the appliance(s) or medication(s) together cause a single article of
clothing to wear out faster than if affected by a single appliance or
medication. This amendment also makes certain technical changes to the
rule.
DATES: Effective Date: This final rule is effective December 16, 2011.
Applicability Date: This final rule applies to claims received by
or pending before VA on or after December 16, 2011.
FOR FURTHER INFORMATION CONTACT: Tom Kniffen, Chief, Regulations Staff
(211D), Compensation 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: In a document published in the Federal
Register on February 2, 2011 (76 FR 5733-5734), VA proposed to amend
its regulations regarding clothing allowances in order to implement the
holding of the U.S. Court of Appeals for the Federal Circuit (Federal
Circuit) in Sursely v. Peake, 551 F.3d 1351, 1356 (Fed. Cir. 2009). In
this final rule, VA will implement Sursely by amending 38 CFR
3.810(a)(2) to provide that a veteran is entitled to a clothing
allowance for each qualifying prosthetic or orthopedic appliance worn
or used by a veteran because of a service-connected disability which
tends to wear or tear clothing or medication prescribed by a physician
and used by a veteran for a skin condition caused by a service-
connected disability which irreparably damages an outergarment if each
appliance or medication affects a single article of clothing or
outergarment.
VA also provides in Sec. 3.810(a)(3) that a veteran is entitled to
two annual clothing allowances if: (1) A veteran uses more than one
qualifying prosthetic or orthopedic appliance, medication for more than
one skin condition, or an appliance and a medication; and (2) the
appliance(s) or medication(s) each satisfy the requirements of Sec.
3.810(a)(1) and together tend to tear or wear a single article of
clothing or irreparably damage an outergarment, requiring replacement
at an increased rate than if the article of clothing, or outergarment,
was affected by a single qualifying appliance or medication.
Comments in Response to Proposed Rule
A 60-day comment period ended April 4, 2011, and VA received
comments from seven members of the general public and one organization.
Three individual commenters expressed general support for the rule. A
fourth commenter stated that VA should expand the service-connected
disabilities for which a clothing allowance is provided to include
``very limited knee movement when walking'' which causes shoes to wear
out faster. VA makes no change based on this comment because 38 U.S.C.
1162 authorizes payment of a clothing allowance only if a veteran
``wears or uses a prosthetic or orthopedic appliance'' that tends to
wear out or tear the veteran's clothing or uses physician-prescribed
medication for a skin condition due to a service-connected disability
and the medication causes irreparable damage to the veteran's
outergarments. No clothing allowance is payable if a veteran does not
use a prosthetic or orthopedic appliance or medication for a skin
condition.
Another commenter stated that use of an Ankle-Foot Orthotic (AFO)
wears out shoes as well as slacks/trousers. VA makes no change based on
this comment because 38 U.S.C. 1162 does not authorize the payment of
more than one clothing allowance based on a single qualifying
appliance. Section 1162 authorizes VA to pay ``a clothing allowance of
$716 per year'' to each veteran who, because of service-connected
disability ``wears or uses a prosthetic appliance (including a
wheelchair) which the Secretary determines tends to wear out or tear
the clothing of the veteran.'' In Sursely, the Federal Circuit stated
that ``by linking receipt of the [clothing allowance] to a single
qualifying appliance, Congress recognized that multiple appliances
might allow the award of multiple benefits.'' That decision provides no
basis for interpreting section 1162 to allow more than one clothing
allowance for a single appliance.
A sixth commenter expressed that VA should establish ``no
limitation for the number of clothing allowances per year'' because
some veterans use a combination of prosthetic and/or orthopedic
appliances for service-connected disabilities. VA appreciates this
comment; however, VA makes no change in response to this comment
because the rule as proposed already provides for multiple prosthetic
and/or orthopedic appliances. As explained above, Sec. 3.810(a)(2)
provides that a veteran is entitled to an annual clothing allowance for
each prosthetic or orthopedic appliance used by the veteran if each
appliance affects a distinct article of clothing and Sec. 3.810(a)(3)
provides for two clothing allowances based on the cumulative effects of
multiple appliances on a single article of clothing.
The seventh commenter stated that currently, only metal-hinged
prosthetic devices qualify for the clothing allowance and that VA
should cover wear and tear caused by plastic-hinged prosthetics as
well. The commenter further stated that prescription skin cream for the
``face, neck, hands, arms, or any area not covered by clothing may come
into contact with clothing, causing discoloration or rapid
deterioration.'' VA appreciates these comments; however, VA makes no
change to the rule based on these comments for the following reasons.
The term ``prosthetic * * * appliance'' in Sec. 3.810(a)(1)(i),
(a)(1)(ii)(A), (a)(2) and (3) includes plastic-hinged prosthetics and
is not limited to metal-hinged prosthetic devices. With regard to the
comment about medication that comes in contact with clothing, Sec.
3.810(a) does not limit entitlement to a clothing allowance to
medications that are covered by clothing. Rather a veteran is entitled
to a clothing allowance if any physician-
[[Page 70884]]
prescribed medication used for a skin condition caused by a service-
connected disability irreparably damages the veteran's outergarment. As
such, VA makes no change based on this comment.
VA received an eighth and final comment from the National
Organization of Veterans' Advocates, Inc. (NOVA). NOVA suggested that
VA revise Sec. 3.810(a)(1)(i) to clarify that a veteran is entitled to
one clothing allowance if a VA examination or hospital or examination
report from a facility specified in 38 CFR 3.326(b) establishes that
physician-prescribed medication for a skin condition due to a service-
connected disability causes irreparable damage to the veteran's
outergarments. VA makes no change based on this comment because it is
beyond the scope of this rulemaking. Section 3.810(a)(1)(i) restates,
without change, VA's long-standing policy of providing that claims for
clothing allowance that are based on certain types of disabilities
(i.e., the loss or loss of use of a hand or foot compensable at the
rate prescribed in 38 CFR 3.350(a), (b), (c), (d), or (f)) may be
decided without the requirement for a certification from the VA Under
Secretary for Health, or his or her designee, of medical facts
establishing eligibility for the clothing allowance. Section
3.810(a)(1)(ii) correspondingly provides that, in all other clothing
allowance claims, including claims based on use of prescribed
medication and claims based on use of a prosthetic or orthopedic device
for conditions other than those specified in Sec. 3.810(a)(1)(i),
certification from the Under Secretary for Health or his or her
designee is necessary. VA's proposed rule did not propose to change
this long-standing policy concerning the circumstances in which
certification of medical facts is required. The purpose of this rule is
to amend 38 CFR 3.810(a)(2) and (3) ``to implement Sursely,'' which
addressed a veteran's entitlement to two clothing allowances for
independently qualifying orthopedic appliances affecting different
articles of clothing. 76 FR 5733; Sursely, 551 F.3d at 1356.
VA will make the following non-substantive technical changes to the
final rule to enhance clarity. The parenthetical ``(including a
wheelchair)'' was included in proposed Sec. 3.810(a)(1)(i) and
(a)(1)(ii)(A), but was not included in proposed Sec. 3.810(a)(2) and
(3). VA will revise the parenthetical in Sec. 3.810(a)(1)(i) and
(a)(1)(ii)(A) to read ``(including, but not limited to, a wheelchair)''
and also add this parenthetical after the term ``orthopedic appliance''
in paragraphs (a)(2) and (3) to clearly state that all qualifying
prosthetic or orthopedic appliances, in addition to a wheelchair, are
included.
VA will replace the term ``distinct'' in the title of Sec.
3.810(a)(2) with the term ``multiple types of'' in order to clarify
that more than one clothing allowance is payable when more than one
type of garment is affected. Similarly, in Sec. 3.810(a)(2)(ii), VA
will replace the term ``distinct'' with ``more than one type of'' to
clarify that more than one clothing allowance is payable when more than
one type of article of clothing or outergarment is affected. We will
also insert ``type of'' after ``single'' in the title of Sec.
3.810(a)(3) and in Sec. 3.810(a)(3)(ii) and will replace ``an
outergarment'' with ``a type of outergarment'' in Sec.
3.810(a)(3)(ii). This will clarify that the references to garments or
clothing in this regulation are to types of garments, such as shirts,
rather than to individual garments, such as a specific shirt.
In Sec. 3.810(a)(3)(ii), VA will replace the phrase ``at a faster
rate than if affected by one qualifying appliance or medication'' with
``at an increased rate of damage to the clothing or outergarment due to
a second appliance or medication.'' This language will clarify that a
second clothing allowance may be paid when a second appliance and/or
medication increases the rate of damage to the clothing or
outergarment.
Paperwork Reduction Act
The collection of information under the Paperwork Reduction Act (44
U.S.C. 3501-3521) referenced in the proposed rule has an existing OMB
approval as a form. The form is VA Form 10-8678, Application for Annual
Clothing Allowance (Under 38 U.S.C. 1162), OMB approval number 2900-
0198. No changes are made in this final rule to the collection of
information.
Regulatory Flexibility Act
The Secretary hereby certifies that this 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, 5 U.S.C. 601-
612. This final rule would not affect any small entities. Only VA
beneficiaries could be directly affected. Therefore, pursuant to 5
U.S.C. 605(b), this final rule is exempt from the initial and final
regulatory flexibility analysis requirements of sections 603 and 604.
Executive Orders 12866 and 13563
Executive Orders 12866 and 13563 direct agencies to assess the
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 effects, and other advantages; distributive impacts;
and equity). Executive Order 13563 (Improving Regulation and Regulatory
Review) emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
Executive Order 12866 (Regulatory Planning and Review) defines a
``significant regulatory action,'' which requires review by the Office
of Management and Budget (OMB), 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
this Executive Order.''
The economic, interagency, budgetary, legal, and policy
implications of this regulatory action have been examined and it has
been determined not to be 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 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 year. This final 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 proposed rule are 64.013, Veterans Prosthetic
Appliances; and 64.109, Veterans Compensation for Service-Connected
Disability.
[[Page 70885]]
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 November 2, 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: November 10, 2011.
Robert C. McFetridge,
Director of Regulation Policy and Management, Office of the General
Counsel, Department of Veterans Affairs.
For the reasons set out in the preamble, VA amends 38 CFR part 3 as
follows:
PART 3--ADJUDICATION
Subpart A--Pension, Compensation, and Dependency and Indemnity
Compensation
0
1. The authority citation for part 3, subpart A continues to read as
follows:
Authority: 38 U.S.C. 501(a), unless otherwise noted.
0
2. Revise Sec. 3.810, paragraph (a) to read as follows:
Sec. 3.810 Clothing allowance.
(a) Except as provided in paragraph (d) of this section, a veteran
who has a service-connected disability, or a disability compensable
under 38 U.S.C. 1151 as if it were service connected, is entitled, upon
application therefore, to an annual clothing allowance, which is
payable in a lump sum, as specified in this paragraph.
(1) One clothing allowance. A veteran is entitled to one annual
clothing allowance if--
(i) A VA examination or a hospital or examination report from a
facility specified in Sec. 3.326(b) establishes that the veteran,
because of a service-connected disability or disabilities due to loss
or loss of use of a hand or foot compensable at a rate specified in
Sec. 3.350(a), (b), (c), (d), or (f), wears or uses one qualifying
prosthetic or orthopedic appliance (including, but not limited to, a
wheelchair) which tends to wear or tear clothing; or
(ii) The Under Secretary for Health or a designee certifies that--
(A) A veteran, because of a service-connected disability or
disabilities, wears or uses one qualifying prosthetic or orthopedic
appliance (including, but not limited to, a wheelchair) which tends to
wear or tear clothing; or
(B) A veteran uses medication prescribed by a physician for one
skin condition, which is due to a service-connected disability, that
causes irreparable damage to the veteran's outergarments.
(2) More than one clothing allowance; multiple types of garments
affected. A veteran is entitled to an annual clothing allowance for
each prosthetic or orthopedic appliance (including, but not limited to,
a wheelchair) or medication used by the veteran if each appliance or
medication--
(i) Satisfies the requirements of paragraph (a)(1) of this section;
and
(ii) Affects more than one type of article of clothing or
outergarment.
(3) Two clothing allowances; single type of garment affected. A
veteran is entitled to two annual clothing allowances if a veteran uses
more than one prosthetic or orthopedic appliance, (including, but not
limited to, a wheelchair), medication for more than one skin condition,
or an appliance and a medication, and the appliance(s) or
medication(s)--
(i) Each satisfy the requirements of paragraph (a)(1) of this
section; and
(ii) Together tend to wear or tear a single type of article of
clothing or irreparably damage a type of outergarment at an increased
rate of damage to the clothing or outergarment due to a second
appliance or medication.
* * * * *
[FR Doc. 2011-29579 Filed 11-15-11; 8:45 am]
BILLING CODE 8320-01-P