[Federal Register Volume 78, Number 93 (Tuesday, May 14, 2013)]
[Rules and Regulations]
[Pages 28140-28143]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-11410]



[[Page 28140]]

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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AN87


Tentative Eligibility Determinations; Presumptive Eligibility for 
Psychosis and Other Mental Illness

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends the Department of Veterans Affairs (VA) 
regulation authorizing tentative eligibility determinations to comply 
with amended statutory authority concerning minimum active-duty service 
requirements. This document also codifies in regulation statutory 
presumptions of medical care eligibility for veterans of certain wars 
and conflicts who developed psychosis within specified time periods and 
for Persian Gulf War veterans who developed a mental illness other than 
psychosis within 2 years after service and within 2 years after the end 
of the Persian Gulf War period.

DATES: This rule is effective June 13, 2013.

FOR FURTHER INFORMATION CONTACT: Kristin J. Cunningham, Director, 
Business Policy, Chief Business Office, Department of Veterans Affairs, 
810 Vermont Avenue NW., Washington, DC 20420; (202) 461-1599. (This is 
not a toll-free number.)

SUPPLEMENTARY INFORMATION: VA is revising 38 CFR 17.34(b) to allow for 
tentative eligibility determinations for persons who seek a tentative 
eligibility determination for VA health care based on a period of 
service that began after September 7, 1980 and meet the minimum service 
requirements in 38 U.S.C. 5303A, provided they have filed their 
application for VA health care within 6 months after the date of 
discharge under conditions other than dishonorable. We are also 
revising Sec.  17.34(b) to remove the minimum active-duty period of 6 
months for persons who seek a tentative eligibility determination based 
on a period of service that began on or before September 7, 1980.
    We are also amending VA's regulation on the provision of care to 
non-enrolled veterans, 38 CFR 17.37, to include veterans with psychosis 
or mental illness other than psychosis. We are establishing a new Sec.  
17.109 that codifies for the first time in regulation the two 
presumptions of eligibility for medical care based on specific 
diagnoses in certain veteran populations, as set forth in 38 U.S.C. 
1702(a). Finally, we are amending 38 CFR 17.108, 17.110, and 17.111 to 
clearly exempt from any copayment requirement persons eligible for care 
under proposed Sec.  17.109.
    VA proposed all of these amendments in a document published in the 
Federal Register on March 1, 2012 (77 FR 12522). We provided a 60-day 
comment period, which ended on April 30, 2012. We received seven 
comments from members of the general public.
    One commenter requested clarification regarding the purpose of the 
regulation. The commenter suggested that VA intended the regulation to 
``put an end to `mental illness' claims by Gulf War Vets.''
    In response, we assure the commenter that this rulemaking does not 
prevent Gulf War veterans, or any veterans, from filing VA benefit 
claims. The rulemaking facilitates an eligible veteran's ability to 
receive medical care for psychosis and mental illness other than 
psychosis. In the proposed rulemaking, we stated that ``the Veterans 
Health Administration (VHA) may treat the covered disabilities as if 
they were service-connected for purposes of furnishing VHA benefits 
and, in turn, determine that no copayment is applicable to the receipt 
of such benefits.'' By providing medical care to a veteran before VA 
determines that the veteran's psychosis or mental illness other than 
psychosis is service-connected, VA is ensuring that the veteran 
receives immediate medical treatment for such condition, without 
waiting for a determination of service-connection. The immediate 
medical treatment will, in turn, enable the veteran to manage his or 
her medical condition more effectively.
    The commenter also asked whether VA ``want[s] to use this 
regulation just for medical decisions.'' The answer is that we do 
intend to use this regulation solely for VA medical care eligibility 
determinations. Tentative eligibility determinations have no effect on 
a determination of actual eligibility for VA medical care or any other 
VA benefit. We hope this explanation resolves the commenter's concerns, 
and we do not make any changes based on this comment.
    Another commenter stated that the ``entire rule should be [re]vised 
due to its ineffectiveness to service military personnel suffering from 
psychosis.'' The commenter went on to state that the proposed rule did 
not consider four factors enumerated by the commenter. The first factor 
is that ``having a mental illness is like having a disability.'' The 
second factor is that ``the six month rule is insane, no matter the 
time one serves this country should not be an issue.'' The third factor 
is that ``[t]he manner in which a person was discharged should not be 
relevant.'' Lastly, the fourth factor provided by the commenter 
indicated that changes should start with addressing ``the understaffed 
and unsanitary conditions of some of these facilities.'' We discuss 
each of these factors below.
    Regarding the commenter's first factor, VA currently rates a 
veteran's mental illness in accordance with the Diagnostic and 
Statistical Manual of Mental Disorders, Fourth Edition, of the American 
Psychiatric Association (DSM-IV), and we recognize mental illness as a 
disability that can serve as the basis for an award of service-
connection. See 38 CFR 4.130. In fact, this final rulemaking enables VA 
to provide prompt treatment of a veteran's psychosis or mental illness 
other than psychosis without waiting for a finding of service-
connection. Providing such treatment will not hinder the process of 
determining whether the psychosis or mental illness is service-
connected for VA purposes. In the proposed rulemaking we made clear 
that, in many cases, the condition for which the veteran seeks care is 
one for which service-connection will probably be established. The aim 
of this rulemaking is to make certain that veterans receive prompt 
treatment for psychosis or mental illness other than psychosis after 
discharge from service. We do not make any changes based on this 
comment.
    The commenter's second concern is the requirement in Sec.  
17.34(b)(1) that a veteran who seeks eligibility based on service 
provided on or before September 7, 1980, must have served for a period 
of at least 6 months of active duty. Since its promulgation, VA's 
regulation governing tentative eligibility determinations included a 6-
month minimum requirement. See 38 CFR 17.35 (1970). However, as 
explained in the proposed rule preamble, we proposed to amend Sec.  
17.34 to comply with the minimum service requirements contained in 38 
U.S.C. 5303A, which apply to veterans who entered active duty after 
September 7, 1980. We now remove from Sec.  17.34(b) the 6-month 
service requirement for veterans who seek eligibility for VA health 
care based on service provided on or before September 7, 1980, in 
consideration of the fact that very few, if any, veterans will be 
seeking tentative eligibility determinations within 6 months of 
discharge for a period of service that began over 32 years ago. The 
amount of time that a veteran, who entered active duty after September 
7, 1980, must serve on active duty in order to be

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eligible for VA benefits is governed by 38 U.S.C. 5303A. Congress added 
a minimum active duty requirement due to concern that some 
servicemembers were, through inappropriate or unproductive conduct, 
bringing about their early discharges, and that some of them had 
enlisted for the purpose of obtaining eligibility for veterans' 
benefits based on short periods of service. Congress believed it was 
inappropriate to provide veterans' benefits to those who substantially 
fail to fulfill their active-duty service commitments. See Senate 
Report 97-153, July 8, 1981; See also Public Law 96-342. In particular, 
we amend Sec.  17.34(b) to state that tentative eligibility 
determinations for VA health care will be made if ``[t]he application 
is filed within 6 months after date of discharge under conditions other 
than dishonorable, and for a veteran who seeks eligibility based on a 
period of service that began after September 7, 1980, the veteran must 
meet the applicable minimum service requirements under 38 U.S.C. 
5303A.'' For applications for which tentative eligibility cannot be 
granted, VA will honor its duty to assist veterans in obtaining 
necessary documentation of proof of service or other documentation 
necessary to validate eligibility.
    Regarding the commenter's third factor, in reference to the 
``manner in which a person was discharged,'' the proposed rulemaking 
stated that the veteran must have received an honorable discharge to 
qualify for tentative eligibility for VA health care. The term 
``veteran'' is defined in 38 U.S.C. 101(2) as ``a person who served in 
the active military, naval, or air service, and who was discharged or 
released therefrom under conditions other than dishonorable.'' Before 
it was amended by this rulemaking, Sec.  17.34(b) stated that tentative 
eligibility for VA health care may be authorized if ``[t]he application 
was filed within 6 months after date of honorable discharge from a 
period of not less than 6 months of active duty.'' Proposed Sec.  
17.34(b) retained use of the term ``honorable discharge;'' however, we 
agree with the commenter that this may be too restrictive. For example, 
a general discharge under honorable conditions technically is not the 
same as an ``honorable'' discharge, but it is a discharge that is 
``other than dishonorable.'' To limit tentative eligibility to veterans 
with an ``honorable discharge'' would exclude some veterans with 
discharges that are not dishonorable and whose eligibility ``probably 
will be established.'' Therefore, to cover all veterans whose 
eligibility for VA health care probably will be established, we amend 
Sec.  17.34(b) to state that the application for tentative eligibility 
for VA health care must be filed within 6 months after the date of 
discharge ``under conditions other than dishonorable.'' This amendment 
will also correctly reflect the requirement of the statutory definition 
of ``veteran,'' which, as previously stated in this rulemaking, 
requires that a person be discharged under conditions other than 
dishonorable. For applications for which tentative eligibility cannot 
be granted, VA will honor its duty to assist veterans in obtaining 
necessary documentation of proof of service or other documentation 
necessary to validate eligibility.
    The commenter's last factor concerning ``the understaffed and 
unsanitary conditions of some of these facilities'' is beyond the scope 
of this rulemaking. We do not make any changes based on this comment.
    Another commenter suggested that the ``presumptive service be given 
for all veterans to whichever is later, the proposed changes or this . 
. . within two years of separation from active duty.'' The commenter 
cited as an example that ``if the presumptive service-connection was 
afforded two years after the veteran retired it would give the veteran 
time to come forward with their mental health issues after they have 
separated which is more likely the time they would report their 
symptoms.'' The purpose and meaning of this comment is unclear.
    We believe that the commenter's concern was that the tentative 
eligibility determination under Sec.  17.34 should apply if a veteran 
submits an application within 2 years after discharge. The 6-month 
limitation for tentative eligibility determinations for VA health care 
is to afford medical assistance to veterans immediately after discharge 
but before they have had sufficient time to file a claim to establish 
eligibility as is generally required. If the veteran's psychosis is not 
manifested immediately after discharge, but develops within 2 years 
after discharge from active duty, the veteran may be eligible for 
treatment under new Sec.  17.109, which codifies the statutory 
presumptions of eligibility established by Congress at 38 U.S.C. 1702. 
The 2-year time period to be eligible to receive medical care under 38 
U.S.C. 1702 recognizes that psychosis may take some time to fully 
manifest itself. We do not make any changes based on this comment.
    A commenter supported the rulemaking and believes that it ``will 
bring about needed changes to [the] VA healthcare system.'' The 
commenter also stated that ``I do, however, like that there is no 
minimum service requirement for length of active-duty in order to 
qualify for these benefits.'' The commenter's statement regarding no 
minimum active duty service requirement to qualify for benefits is 
correct as it applies to Sec.  17.109. However, as previously stated in 
this final rulemaking, 38 U.S.C. 5303A establishes a minimum active 
duty period for tentative eligibility determinations, as stated in 
Sec.  17.34(b).
    This same commenter, along with a second commenter, was concerned 
with the 2-year time limit in Sec.  17.109 for the development of 
psychosis following discharge to establish a presumptive eligibility. 
The first commenter stated that the ``patients would have needed to 
develop psychosis within 2 years of discharge or after the war/
conflict. My problem with this provision is that illnesses that stem 
from a traumatic event, such as psychosis, can develop later in life.'' 
This first commenter further stated that psychosis does not follow a 
calendar. The second commenter stated that ``[d]espite all the advances 
in diagnosing and treating mental illnesses, the field is still not 
precise in diagnosis.'' This second commenter further stated that the 
diagnosis of a mental condition can be subjective, because ``there 
isn't always objective empirical evidence.'' Both commenters concluded 
that, to address their concerns, VA should extend the 2-year time 
limit. However, Congress established the 2-year period at 38 U.S.C. 
1702. As previously noted, VA cannot amend a statutory period through 
regulation. Therefore, we do not make any changes based on these 
comments.
    Another commenter stated that VA needs to ``house and care for 
basic human conditions, including comprehensive medical and psychiatric 
care.'' The commenter suggested that this care could be accomplished 
with comprehensive advanced registered nurse practitioners who work 
``in the community where these veterans live.'' We appreciate the 
commenter taking the time to comment on the rulemaking, however, we 
believe that the specific mechanisms for providing care to veterans who 
are in need of medical and psychiatric care are beyond the scope of 
this rulemaking. We do not make any changes based on this comment.
    Finally, one commenter observed an increasing need for mental 
health care for veterans. The commenter stated that, although the 
``proposed rule would not solve the critical issue of veterans[']

[[Page 28142]]

timely access to mental health care, it is at least a step in the right 
direction,'' and ``might simplify the process for soldiers applying for 
mental health benefits and care.'' This rulemaking, in conjunction with 
other VA outreach and health care services, provides VA with the 
flexibility to provide care aimed at improving the mental health of 
veterans. The rulemaking also allows for the prompt treatment of 
psychosis and other mental conditions immediately after a qualifying 
veteran is discharged from service. We agree with the commenter in that 
this rulemaking is a step in the right direction for the betterment of 
a veteran's mental health. We do not make any changes based on this 
comment.
    Based on the rationale set forth in the Supplementary Information 
to the proposed rule and in this final rule, VA is adopting the 
proposed rule as a final rule with the change mentioned above.

Effect of Rulemaking

    Title 38 of the Code of Federal Regulations, as revised by this 
rulemaking, represents VA's implementation of its legal authority on 
this subject. Other than future amendments to this regulation or 
governing statutes, no contrary guidance or procedures are authorized. 
All existing or subsequent VA guidance must be read to conform with 
this rulemaking if possible or, if not possible, such guidance is 
superseded by this rulemaking.

Paperwork Reduction Act

    This final rule 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. This final rule will directly affect only individuals and will not 
directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), 
this rulemaking is exempt from the initial and final regulatory 
flexibility analysis requirements of 5 U.S.C. 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,'' 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 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 given year. This final rule will have no such effect 
on State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance Numbers

    The Catalog of Federal Domestic Assistance program numbers and 
titles for the programs affected by this document are: 64.009, Veterans 
Medical Care Benefits; 64.010, Veterans Nursing Home Care; 64.011, 
Veterans Dental Care; 64.013, Veterans Prosthetic Appliances; 64.018, 
Sharing Specialized Medical Resources; 64.019, Veterans Rehabilitation 
Alcohol and Drug Dependence; and 64.022, Veterans Home Based Primary 
Care.

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. Jose D. 
Riojas, Interim Chief of Staff, Department of Veterans Affairs, 
approved this document on May 3, 2013, for publication.

List of Subjects in 38 CFR Part 17

    Administrative practice and procedure, Alcohol abuse, Alcoholism, 
Claims, Day care, Dental health, Drug abuse, Foreign relations, 
Government contracts, Grant programs--health, Grant programs--veterans, 
Health care, Health facilities, Health professions, Health records, 
Homeless, Medical and dental schools, Medical devices, Medical 
research, Mental health programs, Nursing homes, Philippines, Reporting 
and recordkeeping requirements, Scholarships and fellowships, Travel 
and transportation expenses, Veterans.

Robert C. McFetridge,
Director of Regulation Policy and Management, Office of General 
Counsel, Department of Veterans Affairs.

    For the reasons stated in this rulemaking, the Department of 
Veterans Affairs amends 38 CFR part 17 as set forth below:

PART 17--MEDICAL

0
1. The authority citation for part 17 continues to read as follows:


    Authority:  38 U.S.C. 501, and as noted in specific sections.


0
2. Amend Sec.  17.34 by revising paragraph (b) and adding an authority 
citation to read as follows:


Sec.  17.34  Tentative eligibility determinations.

* * * * *
    (b) Based on discharge. The application is filed within 6 months 
after date of discharge under conditions other than dishonorable, and 
for a veteran who seeks eligibility based on a period of service that 
began after September 7, 1980, the veteran must meet the applicable 
minimum service requirements under 38 U.S.C. 5303A.


    Authority: (38 U.S.C. 501, 5303A)


0
3. Amend Sec.  17.37 by adding paragraph (k) to read as follows:

[[Page 28143]]

Sec.  17.37  Enrollment not required--provision of hospital and 
outpatient care to veterans.

* * * * *
    (k) A veteran may receive care for psychosis or mental illness 
other than psychosis pursuant to 38 CFR 17.109.
* * * * *


0
4. Amend Sec.  17.108 by adding paragraph (d)(12) to read as follows:


Sec.  17.108  Copayments for inpatient hospital care and outpatient 
medical care.

* * * * *
    (d) * * *
    (12) A veteran receiving care for psychosis or a mental illness 
other than psychosis pursuant to Sec.  17.109.
* * * * *


0
5. Add Sec.  17.109 to read as follows:


Sec.  17.109  Presumptive eligibility for psychosis and mental illness 
other than psychosis.

    (a) Psychosis. Eligibility for benefits under this part is 
established by this section for treatment of an active psychosis, and 
such condition is exempted from copayments under Sec. Sec.  17.108, 
17.110, and 17.111 for any veteran of World War II, the Korean 
conflict, the Vietnam era, or the Persian Gulf War who developed such 
psychosis:
    (1) Within 2 years after discharge or release from the active 
military, naval, or air service; and
    (2) Before the following date associated with the war or conflict 
in which he or she served:
    (i) World War II: July 26, 1949.
    (ii) Korean conflict: February 1, 1957.
    (iii) Vietnam era: May 8, 1977.
    (iv) Persian Gulf War: The end of the 2-year period beginning on 
the last day of the Persian Gulf War.
    (b) Mental illness (other than psychosis). Eligibility under this 
part is established by this section for treatment of an active mental 
illness (other than psychosis), and such condition is exempted from 
copayments under Sec. Sec.  17.108, 17.110, and 17.111 for any veteran 
of the Persian Gulf War who developed such mental illness other than 
psychosis:
    (1) Within 2 years after discharge or release from the active 
military, naval, or air service; and
    (2) Before the end of the 2-year period beginning on the last day 
of the Persian Gulf War.
    (c) No minimum service required. Eligibility for care and waiver of 
copayments will be established under this section without regard to the 
veteran's length of active-duty service.


    Authority: (38 U.S.C. 501, 1702, 5303A)


0
6. Amend Sec.  17.110 by adding paragraph (c)(10) to read as follows:


Sec.  17.110  Copayments for medication.

* * * * *
    (c) * * *
    (10) A veteran receiving care for psychosis or a mental illness 
other than psychosis pursuant to Sec.  17.109.
* * * * *


0
7. Amend Sec.  17.111 by adding paragraph (f)(9) to read as follows:


Sec.  17.111  Copayments for extended care services.

* * * * *
    (f) * * *
    (9) A veteran receiving care for psychosis or a mental illness 
other than psychosis pursuant to Sec.  17.109.
* * * * *
[FR Doc. 2013-11410 Filed 5-13-13; 8:45 am]
BILLING CODE 8320-01-P