[Federal Register Volume 60, Number 196 (Wednesday, October 11, 1995)] [Rules and Regulations] [Pages 52863-52864] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 95-25129] ----------------------------------------------------------------------- DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 3 RIN 2900-AH48 Examinations AGENCY: Department of Veterans Affairs. ACTION: Interim final rule. ----------------------------------------------------------------------- SUMMARY: This document amends the Department of Veterans Affairs (VA) adjudication regulations concerning compensation and pension claims filed by veterans, surviving spouses, or parents. This changes the language for authorizing VA examinations by providing that a VA examination will be authorized where there is a well-grounded claim for disability compensation but where the medical evidence accompanying the claim is not adequate for rating purposes. This more accurately reflects statutory language and caselaw requirements concerning such VA examinations. DATES: The effective date of this interim final rule is October 11, 1995. Comments must be received on or before December 11, 1995. ADDRESSES: Mail written comments to: Director, Office of Regulations Management (02D), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, or hand-deliver written comments to: Office of Regulations Management, Room 1176, 801 Eye Street NW., Washington, DC 20001. Comments should indicate that they are in response to ``RIN 2900-AH48.'' All written comments received will be available for public inspection in the Office of Regulations Management, Room 1176, 801 Eye Street NW., Washington, DC 20001, between the hours 8:00 a.m. and 4:30 p.m., Monday through Friday (except holidays). FOR FURTHER INFORMATION CONTACT: Paul Trowbridge, Consultant, Regulations Staff, Compensation and Pension Service, Veterans Benefits Administration, 810 Vermont Avenue NW., Washington, DC 20420, (202) 273-7210. SUPPLEMENTARY INFORMATION: For many years VA regulations provided that a compensation claim could not be rated without a current VA examination, or a report deemed to be the equivalent of a VA examination. In general, hospital reports (government or private) were deemed to be VA examinations if otherwise adequate for rating purposes, but private physicians' reports were not. On July 14, 1994, VA published a final rule in the Federal Register (59 FR 35851) amending 38 CFR 3.326 to permit acceptance of a private physician's statement for the purpose of rating claims for increased compensation due to the increased severity of service-connected disabilities. A private physician's statement, however, was still not acceptable for rating an original compensation claim. On November 2, 1994, the Veterans' Benefits Improvements Act of 1994, Pub. L. 103-446, was signed into law. Section 301 of Pub. L. 103- 446 underscored the Secretary of Veterans Affairs' discretionary authority to accept the report of a private physician's examination that is otherwise adequate for rating purposes to establish entitlement to any compensation or pension benefit. A final rule enabling the Secretary to exercise that discretionary authority was published on May 24, 1995 in the Federal Register (60 FR 27409). That final rule amended 38 CFR 3.326(d) as well as Secs. 3.157, 3.327, and 3.352. Previously, paragraph (a) of Sec. 3.326 indicated that a VA examination would be authorized where the reasonable probability of a valid claim was indicated in any compensation or pension claim filed by a veteran, surviving spouse, or parent, whether an original or reopened claim or a claim for increase. This document revises paragraph (a) to state that a VA examination will be authorized where there is a ``well- grounded claim'' for disability compensation or pension but where the medical evidence accompanying the claim is not adequate for rating purposes. We believe this will not cause a substantial change in the criteria for authorizing VA examinations; however, this change is made to more accurately reflect statutory language and caselaw requirements concerning such VA examinations. The Court of Veterans Appeals has held that scheduling a VA examination may be required as part of VA's duty to assist the claimant under 38 U.S.C. 5107(a), and that the duty to assist attaches when a claim is well-grounded, i.e., when the claim is plausible, meritorious on its own, or capable of substantiation. See, e.g., Betties v. Brown, 6 Vet. App. 333, 336 (1993). The amendments made by this document do not affect the provisions already in the place that require former prisoners of war to be afforded a complete examination at a VA hospital [[Page 52864]] or outpatient clinic prior to any rating action denying monetary benefits. Also, nonsubstantive changes are made to delete provisions that no longer apply and to simply and clarify other provisions. Under 5 U.S.C. 553 there is a basis for dispensing with prior notice and comment and for dispensing with a 30-day delay of the effective date since the interim rule consists of VA policy and is interpretive in nature. The Secretary hereby certifies that this interim 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 (RFA), 5 U.S.C. 601-612. The interim final rule would not directly affect any small entities. Only VA beneficiaries could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), the interim final rule is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604. The Catalog of Federal Domestic Assistance program numbers are 64.100, 64.104, 64,105, 64.106, 64.109, and 64.110. List of Subjects in 38 CFR Part 3 Administrative practice and procedure, claims, Health care, Individuals with disabilities, Pensions, Veterans. Approved: July 31, 1995. Jesse Brown, Secretary, Veterans Affairs. For the reasons set forth in the preamble, 38 CFR part 3 is amended as follows: PART 3--ADJUDICATION Subpart A--Pension, Compensation, and 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. 2. Section 3.326 is revised to read as follows: Sec. 3.326 Examinations. For purposes of this section, the term examination includes periods of hospital observation when required by VA. (a) Where there is a well-grounded claim for disability compensation or pension but medical evidence accompanying the claim is not adequate for rating purposes, a Department of Veterans Affairs examination will be authorized. This paragraph applies to original and reopened claims as well as claims for increase submitted by a veteran, surviving spouse, parent, or child. Individuals for whom an examination has been scheduled are required to report for the examination. (b) Provided that it is otherwise adequate for rating purposes, any hospital report, or any examination report, from any government or private institution may be accepted for rating a claim without further examination. However, monetary benefits to a former prisoner of war will not be denied unless the claimant has been offered a complete physical examination conducted at a Department of Veterans Affairs hospital or outpatient clinic. (c) Provided that it is otherwise adequate for rating purposes, a statement from a private physician may be accepted for rating a claim without further examination. (Authority: 38 U.S.C. 5107(a)) [FR Doc. 95-25129 Filed 10-10-95; 8:45 am] BILLING CODE 8320-01-P