[Federal Register Volume 76, Number 244 (Tuesday, December 20, 2011)]
[Rules and Regulations]
[Pages 78823-78824]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-32531]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 4
RIN 2900-AN60
Schedule for Rating Disabilities; Evaluation of Amyotrophic
Lateral Sclerosis
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: The Department of Veterans Affairs (VA) is amending its
Schedule for Rating Disabilities by revising the disability evaluation
criterion provided for amyotrophic lateral sclerosis (ALS) to provide
an evaluation of 100 percent for any veteran with service-connected
ALS. This change is necessary to adequately compensate veterans who
suffer from this progressive, untreatable, and fatal disease. This
change is intended to provide a total disability rating for any veteran
with service-connected ALS.
DATES: Effective Date: This final rule is effective January 19, 2012.
Applicability Date: This final rule applies to an application for
benefits that:
Is received by VA on or after January 19, 2012;
Was received by VA before January 19, 2012 but has not
been decided by a VA regional office as of that date;
Is appealed to the Board of Veterans' Appeals on or after
January 19, 2012;
Was appealed to the Board before January 19, 2012 but has
not been decided by the Board as of that date; or
Is pending before VA on or after January 19, 2012 because
the Court of Appeals for Veterans Claims vacated a Board decision on
the application and remanded it for readjudication.
FOR FURTHER INFORMATION CONTACT: Nancy A. Copeland, Consultant,
Regulations Staff (211D), Compensation and Pension Service, Veterans
Benefits Administration, Department of Veterans Affairs, 810 Vermont
Avenue NW., Washington, DC 20420, (202) 461-9428. (This is not a toll-
free number.)
SUPPLEMENTARY INFORMATION: On June 23, 2010, VA published in the
Federal Register (75 FR 35711) a proposed rule that would revise the
evaluation criterion for amyotrophic lateral sclerosis (ALS) in the VA
Schedule for Rating Disabilities (diagnostic code 8017 in 38 CFR
4.124a, the schedule of ratings for neurological conditions and
convulsive disorders). The schedule previously provided a minimum
evaluation of 30 percent for ALS; however, we determined that providing
a 100-percent evaluation in all cases would obviate the need to
reassess and reevaluate veterans with ALS repeatedly over a short
period of time, as the condition worsens and inevitably and
relentlessly progresses to total disability, and we proposed to
increase the minimum evaluation for ALS to 100 percent.
Comments in Response to Proposed Rule
A 30-day comment period ended July 23, 2010, and we received
comments from 17 individual members of the general public and 1 from
the Amyotrophic Lateral Sclerosis Association. The comments from the
general public included 5 from veterans who have ALS, 3 from family
members of veterans who have ALS or who died from ALS, and 1 from an
individual raising claim-specific issues. Fifteen of the individual
commenters expressed support for the rule. Two of the 15 said they
support the rule ``wholeheartedly,'' and others used expressions such
as ``it is imperative'' and ``it is absolutely vital.'' We are not
making any changes to the final rule based on these supportive
comments.
In addition, the Amyotrophic Lateral Sclerosis (ALS) Association
strongly endorsed the proposed rule. It stated that the establishment
of an evaluation of 100 percent for ALS in all cases, plus the note
under the evaluation criterion that recommends consideration of special
monthly compensation (SMC) (an additional monthly amount of
compensation that may be paid to veterans with certain serious
disabilities) will help ensure that veterans with ALS are compensated
appropriately. The ALS Association recommended that VA adopt special
processing procedures to expedite ALS claims; however, VA has already
established procedures for handling hardship cases involving seriously
disabled veterans. Therefore, we are not making any changes to the
final rule based on this comment.
One commenter said that he would like to see the 100-percent rating
for this disease given to all veterans, whether or not they are
service-connected. However, under current law, 38 U.S.C. 1110 and 1131,
VA's authority is limited to providing compensation to veterans with
service-connected disabilities. Therefore, as VA is prohibited from
taking the action the commenter requests, we are not making any changes
to the final rule based on this comment.
One commenter expressed the belief that revision of the VA rating
schedule in the proposed rulemaking would be ``arbitrary,'' arguing
that ALS was being evaluated differently from other neurological
disorders. The comment expressed the belief that the proposed rule
would ``rate multiple disabilities as a single disability'' when a
possibility of entitlement to SMC exists, and that the proposed rule
would ``produce decisions which result in payment at a rate lower than
the veteran is entitled to now.''
VA appreciates this comment; however, this rule does not change the
procedure for evaluating service-connected disabilities. It only
prescribes a higher minimum disability rating for ALS. VA remains
required to provide an evaluation for all service-connected
disabilities, regardless of whether a veteran already has received a
100-percent disability rating for one. Therefore, all veterans will
continue to receive thorough evaluations for all service-connected
disabilities and disorders. All veterans who would be eligible for SMC
or ancillary benefits before the promulgation of this regulation will
remain so.
As the proposed rule explained, ALS is a rapidly progressing
disease, and establishment of a 100-percent evaluation for ALS will not
adversely affect how ALS is evaluated for rating purposes. Although a
veteran may receive compensation at the 100-percent rate based either
on a 100-percent evaluation specifically for ALS or on a combined
evaluation for ALS and other service-connected conditions, on either
basis VA may consider the veteran for
[[Page 78824]]
varying levels of SMC, which is an amount of compensation in addition
to amounts payable for service-connected disability, including
disabilities rated 100-percent disabling, where applicable. Indeed, as
amended, 38 CFR 4.124a includes a note to the rater: ``Consider the
need for special monthly compensation.'' Furthermore, because this rule
does not alter VA's procedures regarding evaluation of all disabilities
and disorders, any ancillary benefits to which a veteran may be
entitled will be preserved. We thus make no changes to the regulation
based on this comment.
One general public commenter raised claim-specific issues that are
unrelated to this rulemaking. We thus are making no changes to the
proposed rule based on this comment.
Therefore, based on the rationale set forth in the proposed rule
and this document, we are adopting the provisions of the proposed rule
as a final rule with no changes.
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 an 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 rule will have no such effect on
State, local, and tribal governments, or on the private sector.
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.
Paperwork Reduction Act
This document contains no provisions constituting a collection of
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).
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. The rule could affect only VA beneficiaries and will not directly
affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this
rule is exempt from the initial and final regulatory flexibility
analyses requirements of sections 603 and 604.
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic Assistance program numbers and
titles for this rule are as follows: 64.109, Veterans Compensation for
Service-Connected Disability; and 64.110, Veterans Dependency and
Indemnity Compensation for Service-Connected Death.
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 October 7, 2011, for publication.
List of Subjects in 38 CFR Part 4
Disability benefits, Pensions, Veterans.
Dated: December 15, 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, 38 CFR part 4, subpart B,
is amended as set forth below:
PART 4--SCHEDULE FOR RATING DISABILITIES
0
1. The authority citation for part 4 continues to read as follows:
Authority: 38 U.S.C. 1155, unless otherwise noted.
Subpart B--Disability Ratings
0
2. In Sec. 4.124a, revise diagnostic code 8017 to read as follows:
Sec. 4.124a Schedule of ratings--neurological conditions and
convulsive disorders.
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Rating
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8017 Amyotrophic lateral sclerosis........................... 100
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Note: Consider the need for special monthly compensation.
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[FR Doc. 2011-32531 Filed 12-19-11; 8:45 am]
BILLING CODE 8320-01-P