[Federal Register Volume 59, Number 21 (Tuesday, February 1, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-2110] [[Page Unknown]] [Federal Register: February 1, 1994] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 3 RIN 2900-AG50 Examinations AGENCY: Department of Veterans Affairs. ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: The Department of Veterans Affairs (VA) is proposing to amend its regulations concerning examinations acceptable for VA rating purposes. The amendment would increase the number of situations in which a private physician's statement may be accepted as a VA examination. The intended effect of the proposal is to allow earlier rating action on acceptable medical evidence with no additional burden to either the claimant or VA. DATES: Comments must be received on or before April 4, 1994. Comments will be available for public inspection until April 12, 1994. ADDRESSES: Interested persons are invited to submit written comments, suggestions, or objections regarding this amendment to the Secretary of Veterans Affairs (271A), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420. All written comments will be available for public inspection only in the Veterans Services Unit, room 170, at the above address, between the hours of 8 a.m. and 4:30 p.m., Monday through Friday (except holidays). FOR FURTHER INFORMATION CONTACT: Steven Thornberry, Consultant, Regulations Staff, Compensation and Pension Service, Veterans Benefits Administration, 810 Vermont Avenue, NW., Washington, DC 20420, telephone (202) 233-3005. SUPPLEMENTARY INFORMATION: Section 3.326 of title 38, Code of Federal Regulations, requires VA to authorize a medical examination where a reasonable probability of a valid claim for disability compensation or pension benefits is indicated. A ``claim for disability compensation or pension benefits'' means an original or reopened claim or a claim for increased benefits. Section 3.326 also establishes alternative types of medical evidence which in specified cases may be deemed a ``Department of Veterans Affairs examination'' and accepted for rating purposes. Although a statement from a private physician which includes clinical manifestations and substantiation of a diagnosis through such medically acceptable diagnostic techniques as pathological studies, X-rays, and laboratory tests may be accepted to rate pension and certain other claims, it may not be accepted as the sole basis for a rating decision in compensation claims. We propose to amend Sec. 3.326(d) to permit acceptance of a private physician's statement for rating purposes in claims for increased compensation due to the increased severity of service-connected disabilities. Since the basic issue of service connection has already been resolved in these claims, a statement from a private physician which meets the requirements of Sec. 3.326(d) contains medical evidence acceptable for rating purposes with no need for verification through a VA examination. Furthermore, acceptance of this type of medical evidence will permit earlier decisions on claims for increase by removing the need for VA to schedule, conduct, and review the results of an additional examination. We also propose to clarify the other types of claims in which a private physician's statement may be accepted for rating purposes by revising the current wording of the list of such claims in Sec. 3.326(d). We further propose to remove the last sentence of Sec. 3.326(b), which states that evidence of permanent and total disability will not be required in pension claims for veterans who have attained age 65. The Omnibus Budget Reconciliation Act of 1990, Public Law 101-508, eliminated the presumption of total disability for these veterans with respect to claims filed after October 31, 1990. Finally, we propose to correct the authority citation in Sec. 3.351(a)(2). We are proposing to make this amendment effective 30 days after date of publication of the final rule. The Secretary hereby certifies that these regulatory amendments will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612. The reason for this certification is that these amendments would not directly affect any small entities. Only VA beneficiaries could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), these amendments are exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604. List of Subjects in 38 CFR Part 3 Administrative practice and procedure, Claims, Handicapped, Health care, Pensions, Veterans. Approved: October 4, 1993. Jesse Brown, Secretary of Veterans Affairs. For the reasons set forth in the preamble, 38 CFR part 3 is proposed to be amended to read as follows: Part 3--Adjudication Subpart A--Pension, Compensation, Dependency and Indemnity Compensation 1. The authority citation for part 3, subpart A continues to read as follows: Authority: 38 U.S.C. 501(a), unless otherwise noted. Sec. 3.326 [Amended] 2. In Sec. 3.326, paragraph (b) is amended by removing the last sentence. 3. In Sec. 3.326, paragraph (d) is revised and an authority citation is added to read as follows: Sec. 3.326 Examinations. * * * * * (d) A statement from a private physician that includes clinical manifestations and substantiation of diagnosis by findings of diagnostic techniques generally accepted by medical authorities, such as pathological studies, X-rays, and laboratory tests as appropriate, may be accepted for rating the following claims without further examination, provided it is otherwise adequate for rating purposes: (1) A veteran's claim for increased compensation based either on the increased severity of a service-connected disability or on his or her spouse's need for aid and attendance under 38 U.S.C. 1115(1)(E); (2) a veteran's pension claim, including housebound and aid and attendance benefits; (3) a surviving spouse's claim for housebound or aid and attendance benefits; (4) a surviving parent's claim for aid and attendance benefits; or (5) a claim by or on behalf of a child based on permanent incapability of self-support (see Sec. 3.356 of this part). (Authority: 38 U.S.C. 501(a)) Sec. 3.351 [Amended] 4. In Sec. 3.351(a)(2), the authority citation is revised to read as follows: ``(Authority: 38 U.S.C. 1115(1)(E)).'' [FR Doc. 94-2110 Filed 1-31-94; 8:45 am] BILLING CODE 8320-01-P