[Federal Register Volume 77, Number 19 (Monday, January 30, 2012)]
[Rules and Regulations]
[Pages 4469-4471]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-1873]



38 CFR Part 3

RIN 2900-AN28

Dental Conditions

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.


SUMMARY: The Department of Veterans Affairs (VA) adopts as a final rule 
the proposal to amend its adjudication regulations regarding service 
connection of dental conditions for treatment purposes. This amendment 
clarifies that principles governing determinations by VA's Veterans 
Benefits Administration (VBA) for service connection of dental 
conditions for the purpose of establishing eligibility for dental 
treatment by VA's Veterans Health Administration (VHA), apply only when 
VHA requests information or a rating from VBA for those purposes. This 
amendment also clarifies existing regulatory provisions and reflects 
the respective responsibilities of VHA and VBA in determinations 
concerning eligibility for dental treatment.

DATES: Effective Date: This amendment is effective February 29, 2012.

Staff (211D), Compensation Service, Veterans Benefits Administration, 
Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 
20420, (202) 461-9700. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: In a document published in the Federal 
Register on March 17, 2011 (76 FR 14600), VA proposed to amend 38 CFR 
3.381, which identifies some of the circumstances under which dental 
conditions that may not qualify as disabilities for purposes of VA 
disability compensation may nevertheless be service connected for 
purposes of VA dental treatment under 38 U.S.C. 1712 and 38 CFR 17.161; 
clarifies existing regulatory provisions; and reflects the respective 
responsibilities of VHA and VBA in determinations concerning 
eligibility for dental treatment. We proposed redesignation of 
paragraphs (a) through (f) as paragraphs (b) through (g) and the 
addition of new paragraph (a) that explains the situations when VHA 
will refer a claim to VBA. We also proposed to amend redesignated 
paragraph (b) to clarify what conditions will be service connected for 
treatment purposes. Additionally, we proposed removal of the following 
sentence from redesignated paragraph (c): ``When applicable, the rating 
activity will determine whether the condition is due to combat or other 
in-service trauma, or whether the Veteran was interned as a prisoner of 
war.'' This sentence is being removed because it is repetitive of 
portions of paragraph (a).
    Interested persons were invited to submit written comments to VA on 
or before May 16, 2011. In response to the proposed rule, VA received 
four (4) public comments. Of these comments, two were beyond the scope 
of the rulemaking: One involved comprehensive dental care for children 
of Vietnam veterans born with spina bifida and the other suggested 
revision of the criteria for service personnel to obtain dental care. 
Therefore, no changes were made based on these comments.

[[Page 4470]]

    Of the two remaining comments, one was two-fold. The commenter 
expressed concerns about the procedure for timely processing Class 5 
rating requests; this is beyond the scope of this rulemaking, which 
addresses only the circumstances under which VBA will make adjudicatory 
determinations needed by VHA to determine eligibility for dental care. 
The commenter also suggested that the language of the proposed rule 
pertaining to Class 6 eligibility is ``vague and open to broader 
interpretation than the examples provided.'' This comment also exceeds 
the scope of this rulemaking. In providing background information on 
the various circumstances in which VHA provides dental care to 
veterans, the preamble to the proposed rule notice referred to veterans 
``[w]ho are scheduled for admission or otherwise receiving care under 
38 U.S.C. chapter 17 if dental care is reasonably necessary to the 
provision of such care and services'' and listed as ``examples'' 
several types of surgery for which dental care may be necessary to 
minimize the risk of complications due to infection from dental 
conditions. The examples provided are not intended to be an exhaustive 
list, but rather merely examples of medical conditions commonly 
associated with greater health risks when combined with poor dentition. 
The preamble language is reflective of 38 CFR 17.161, which sets forth 
the criteria concerning eligibility for treatment and which we did not 
propose to revise. To the extent the commenter suggests that we revise 
such criteria, the comment is beyond the scope of this rulemaking. No 
changes were made based on this comment.
    The fourth commenter suggested VA broaden the scope of the 
determinations listed in the proposed rule for greater consistency with 
38 U.S.C 1712 and 38 CFR 17.161(i) and (j). The intent of the proposed 
rule is not to reiterate all potential bases for eligibility for dental 
treatment listed in 38 U.S.C 1712(a)(1)(A)-(H) and 38 CFR 17.161(i) and 
(j), but to clarify VBA's role in making determinations on such 
matters. Further, the phrase ``include, but is not limited to'' 
indicates that the matters listed were intended as examples rather than 
an exclusive list. Thus, the matters referenced in 38 U.S.C 1712 and 38 
CFR 17.161(i) and (j) are not excluded. Therefore, no changes were made 
based on this comment.
    Based on the rationale set forth in the preamble to the proposed 
rule and in this preamble, VA is adopting the proposed rule as a final 
rule without changes.

Paperwork Reduction Act

    This document contains no provisions constituting a collection of 
information under the Paperwork Reduction Act (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 would not affect any small entities. Only certain 
VA beneficiaries could be directly affected. Therefore, pursuant to 5 
U.S.C. 605(b), this final rule is exempt from the initial and final 
regulatory flexibility analysis requirements of sections 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) classifies 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 the Executive Order.
    The economic, interagency, budgetary, legal, and policy 
implications of this final rule 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 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 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 and Titles

    The Catalog of Federal Domestic Assistance program numbers and 
titles for this rule are 64.011, Veterans Dental Care; and 64.109, 
Veterans Compensation for Service-Connected Disability.

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 December 6, 2011, for publication.

List of Subjects in 38 CFR Part 3

    Administrative practice and procedure, Claims, Disability benefits, 
Health care, Pensions, Radioactive materials, Veterans, Vietnam.

    Dated: January 24, 2012.
Robert C. McFetridge,
Director of Regulation Policy and Management, Office of the General 
Counsel, Department of Veterans Affairs.

    For the reasons stated in the preamble, VA amends 38 CFR part 3 as 


1. The authority citation for part 3, subpart A continues to read as 

    Authority:  38 U.S.C. 501(a), unless otherwise noted.

2. Amend Sec.  3.381 by:
a. Redesignating paragraphs (a) through (f) as paragraphs (b) through 
b. Adding new paragraph (a).
c. Revising newly redesignated paragraph (b).
d. Removing the last sentence from newly redesignated paragraph (c).
    The addition and revision read as follows:

[[Page 4471]]

Sec.  3.381  Service connection of dental conditions for treatment 

    (a) The Veterans Benefits Administration (VBA) will adjudicate a 
claim for service connection of a dental condition for treatment 
purposes after the Veterans Health Administration determines a veteran 
meets the basic eligibility requirements of Sec.  17.161 of this 
chapter and requests VBA make a determination on questions that 
include, but are not limited to, any of the following:
    (1) Former Prisoner of War status;
    (2) Whether the veteran has a compensable or noncompensable 
service-connected dental condition or disability;
    (3) Whether the dental condition or disability is a result of 
combat wounds;
    (4) Whether the dental condition or disability is a result of 
service trauma; or
    (5) Whether the veteran is totally disabled due to a service-
connected disability.
    (b) Treatable carious teeth, replaceable missing teeth, dental or 
alveolar abscesses, and periodontal disease are not compensable 
disabilities, but may nevertheless be service connected solely for the 
purpose of establishing eligibility for outpatient dental treatment as 
provided for in Sec.  17.161 of this chapter. These conditions and 
other dental conditions or disabilities that are noncompensably rated 
under Sec.  4.150 of this chapter may be service connected for purposes 
of Class II or Class II (a) dental treatment under Sec.  17.161 of this 
* * * * *
[FR Doc. 2012-1873 Filed 1-27-12; 8:45 am]