[Federal Register Volume 77, Number 13 (Friday, January 20, 2012)]
[Rules and Regulations]
[Page 2910]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-1002]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 4
RIN 2900-AM55
Schedule for Rating Disabilities; Evaluation of Scars; Correction
AGENCY: Department of Veterans Affairs.
ACTION: Final rule; correction.
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SUMMARY: The Department of Veterans Affairs (VA) published in the
Federal Register of September 23, 2008, a document amending its
Schedule for Rating Disabilities by revising that portion of the
Schedule that addresses the Skin, so that it more clearly reflected
VA's policies concerning the evaluation of scars. In the preamble of
that document, VA incorrectly stated the applicability date. VA made a
similar error in the first sentence of the introductory paragraph of 38
CFR 4.118. This document corrects the error in the applicability date.
DATES: This correction is effective January 20, 2012. The applicability
date of rule document E8-21980 on page 54708 in the issue of Tuesday,
September 23, 2008, is corrected as of October 23, 2008.
FOR FURTHER INFORMATION CONTACT: William F. Russo, Deputy Director,
Office of Regulation Policy & Management (02REG), Department of
Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, or call
(202) 461-4902 (not a toll-free number).
SUPPLEMENTARY INFORMATION: On September 23, 2008, VA published in the
Federal Register (73 FR 54708), an amendment to that portion of the
Schedule for Rating Disabilities that addresses the Skin, 38 CFR 4.118,
by revising the criteria for the evaluation of scars. In the dates
section of the rule document, we incorrectly stated the applicability
date. As published, the relevant portion of the applicability date
paragraph read, ``This amendment shall apply to all applications for
benefits received by VA on or after October 23, 2008. A veteran whom VA
rated before such date under diagnostic codes 7800, 7801, 7802, 7803,
7804, or 7805 of 38 CFR 4.118 may request review under these clarified
criteria * * *.'' We made a similar error by amending 38 CFR 4.118 to
state, ``A veteran who VA rated under diagnostic codes 7800, 7801,
7802, 7803, 7804, or 7805 before October 23, 2008 can request review
under diagnostic codes 7800, 7801, 7802, 7804, and 7805 * * *.''
As a result of the errors in the applicability date and in amended
Sec. 4.118, the rule document and the regulation are unclear about
whether veterans whose claims were filed before October 23, 2008, but
were not rated before that date may request review under the new
criteria. A strict, literal reading of the applicability-date language
and Sec. 4.118 might suggest that veterans with such unrated claims
would be rated under the old criteria with no opportunity to request
review under the new criteria. We intended such claims to be rated
under the old criteria subject to the right of the claimant to request
review under the revised criteria. Neither the applicability-date
language nor Sec. 4.118 addressed whether veterans with such claims
may request review. We did not intend the strict reading because it
would be irrational to deny the opportunity for review under the new
criteria to persons whose pending claims had not yet been rated before
October 23, 2008, while providing the opportunity to persons whose
claims had been rated, even though all of the claims had been filed
before that date.
This correction document adds a new second sentence to the
applicability date paragraph, ``The old criteria will apply to
applications received by VA before that date.'' To be consistent with
the new second sentence, this correction document also revises the
third sentence (the original second sentence) to state, ````However, a
veteran whose scars were rated by VA under a prior version of
diagnostic codes 7800, 7801, 7802, 7803, 7804, or 7805 of 38 CFR 4.118,
as in effect prior to the effective date of this rule, may request
review under these clarified criteria, irrespective of whether his or
her disability has worsened since the last review.'' Note that the
``rated by VA under a prior version'' language would encompass claims
that have received an initial rating but are still pending in the
appeals process.
List of Subjects in 38 CFR Part 4
Disability benefits, Pensions, Veterans.
William F. Russo,
Deputy Director, Office of Regulation Policy & Management, Office of
the General Counsel, Department of Veterans Affairs.
For the reason set out in the preamble, in rule document E8-21980
on page 54708 in the issue of Tuesday, September 23, 2008, make the
following corrections:
1. In the second column of page 54708, under the dates section, in
the Applicability Date paragraph, revise the second sentence to read,
``However, a veteran whose scars were rated by VA under a prior version
of diagnostic codes 7800, 7801, 7802, 7803, 7804, or 7805 of 38 CFR
4.118, as in effect prior to the effective date of this rule, may
request review under these clarified criteria, irrespective of whether
his or her disability has worsened since the last review.''
2. In the second column of page 54708, under the dates section, in
the Applicability Date paragraph, add as a new second sentence, ``The
old criteria will apply to applications received by VA before that
date.''
[FR Doc. 2012-1002 Filed 1-19-12; 8:45 am]
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