[Federal Register Volume 60, Number 51 (Thursday, March 16, 1995)]
[Rules and Regulations]
[Pages 14221-14223]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-6510]



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[[Page 14222]]

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AH44


Compensation for Disability Resulting From Hospitalization, 
Treatment, Examination, or Vocational Rehabilitation

AGENCY: Department of Veterans Affairs.

ACTION: Interim final rule with request for comments.

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SUMMARY: This document amends Department of Veterans Affairs (VA) 
adjudication regulations concerning compensation for disability or 
death resulting from VA hospitalization, medical or surgical treatment, 
or examination. Previously, the regulations required that VA be at 
fault or that an accident occur to establish entitlement to 
compensation for adverse results of medical or surgical treatment. This 
rule deletes the fault-or-accident requirement and instead provides 
that compensation is not payable for the necessary consequences of 
proper treatment to which the veteran consented. This amendment is 
necessary to conform the regulations to a recent United States Supreme 
Court decision.

DATES: This interim final rule is effective November 25, 1991, the date 
of the Court of Veterans Appeals decision that invalidated former 38 
CFR 3.358(c)(3). Comments must be received on or before May 15, 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 submitted in response 
to ``RIN 2900-AH44.'' 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 of 8 
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, telephone 
(202) 273-7210.

SUPPLEMENTARY INFORMATION: 38 U.S.C. 1151 provides for the payment of 
disability or dependency and indemnity compensation for additional 
disability or death resulting from an injury or aggravation of an 
injury suffered as the result of VA hospitalization, medical or 
surgical treatment, examination, or pursuit of a course of vocational 
rehabilitation under 38 U.S.C. ch. 31. VA had long interpreted the 
statute to require a showing of fault on the part of VA or the 
occurrence of an accident to establish entitlement to Sec. 1151 
compensation for adverse consequences of VA medical treatment. See 38 
CFR 3.358(c)(3) (1994). The Supreme Court, however, recently affirmed a 
lower court ruling that invalidated VA's fault-or-accident 
interpretation.
    In deciding Brown v. Gardner, U.S. Sup. Ct. No. 93-1128 (Dec. 12, 
1994), the Court held that the fault-or-accident requirement in 38 CFR 
3.358(c)(3) was inconsistent with the plain language of the statute and 
that no fault requirement was implicit in the statute.
    Although the Supreme Court found that the statutory language simply 
requires a causal connection between an injury or aggravation of an 
injury and VA hospitalization, medical or surgical treatment, 
examination, or vocational rehabilitation, it also indicated that not 
every additional disability resulting from an injury or aggravation so 
connected was compensable under Sec. 1151. The Court noted that it did 
not intend to exclude application of the doctrine volenti non fit 
injuria (which is sometimes loosely translated as ``assumption of the 
risk'' but more precisely refers to the doctrine of consent). Moreover, 
the Court provided an example of disabilities that, although causally 
connected to VA treatment, are not compensable under Sec. 1151. In this 
regard, the Court stated, ``[i]t would be unreasonable, for example, to 
believe that Congress intended to compensate veterans for the necessary 
consequences of treatment to which they consented (i.e., compensating a 
veteran who consents to the amputation of a gangrenous limb for the 
loss of the limb).''
    Under the authority granted in 38 U.S.C. 505, the Secretary of 
Veterans Affairs requested an opinion from the U.S. Attorney General on 
precisely what the Supreme Court meant by its statement regarding 
application of the doctrine volenti non fit injuria. The response, from 
the Department of Justice's Office of Legal Counsel, was that the Court 
construed Sec. 1151 to exclude from coverage only those injuries that 
are the certain, or perhaps the very nearly certain, result of proper 
medical treatment.
    In this document VA is revising 38 CFR 3.358(c)(3) to reflect the 
Supreme Court's holding that 38 U.S.C. 1151 permits compensation for 
all but the necessary consequences of properly administered VA medical 
or surgical treatment or examination to which a veteran consented. 
``Necessary consequences'' is the term the Supreme Court used in its 
example of what Congress could not reasonably have intended to cover 
with Sec. 1151. We define ``necessary consequences'' as those 
consequences certain or intended to result from treatment or 
examination. We consider this interpretation of the statute to be 
consistent with the Supreme Court's opinion.
    Consistent with our interpretation of the Supreme Court's opinion, 
this rule also provides that whether results were either certain or 
intended is to be determined in relation to the examination or 
treatment actually administered. Consequences otherwise certain or 
intended to result from a treatment will not be considered uncertain or 
unintended solely because it had not been determined at the time 
consent was given whether that treatment would in fact be administered. 
For example, consider a case in which a veteran is about to undergo 
exploratory surgery and, depending on the findings, would undergo one 
of two possible additional procedures, each of which has distinct 
consequences that are certain or intended to result. Under these 
circumstances it is not known before the exploratory surgery which 
additional procedure will actually be performed. However, if the 
veteran consents both to the exploratory surgery and whichever 
procedure ultimately is determined to be required, the certainty of 
consequences is to be determined in relation to the consented-to 
procedure or procedures actually performed.
    Also, as reflected in the text of the rule, we have concluded that 
when the Supreme Court stated that compensation should not be payable 
for the necessary consequences of treatment to which the veteran 
``consented,'' the Court meant both express and implied consent. This 
is consistent with the common meaning of the term ``consent'' and the 
Court did not indicate that any other meaning should be applied.
    This interim final rule, unlike the regulatory provision it 
replaces, expressly includes the consequences of VA examinations. The 
statute covers injuries or aggravation of injuries resulting from 
examination, as well as from medical or surgical treatment. Thus, the 
rule's inclusion of examination consequences is necessary 
[[Page 14223]] to reflect completely the provisions of the statute.
    We also are deleting other references in the section to the 
invalidated fault requirement. We are eliminating paragraph (c)(4), 
which requires that VA be at fault to establish entitlement for claims 
based on being transported while in hospitalized status. Such claims 
will now be adjudicated under the standard applicable to 
hospitalization, treatment, or examination. We are also making 
corresponding changes to paragraph (c)(7) to remove the fault 
requirement for claims based on nursing home care.
    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 (5 
U.S.C. 601-612). This rule will directly affect VA beneficiaries but 
will not affect small businesses. Therefore, pursuant to 5 U.S.C. 
605(b), this rule is exempt from the initial and final regulatory 
flexibility analysis requirements of section 603 and 604.
    The Office of Management and Budget has reviewed this regulatory 
action under Executive Order 12866.

    The Catalog of Federal Domestic Assistance program number is 
64.109.

List of Subjects in 38 CFR Part 3

    Administrative practice and procedure, Claims, Health care, 
Individuals with disabilities, Pensions, Veterans.

    Approved: February 23, 1995.
Jesse Brown,
Secretary of Veterans Affairs.

    For the reasons set forth in the preamble, 38 CFR Part 3 is amended 
as set forth below:

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. In Sec. 3.358, paragraph (c)(4) is removed, and paragraphs 
(c)(5), (c)(6), and (c)(7) are redesignated as paragraphs (c)(4), 
(c)(5), and (c)(6), respectively.
    3. In Sec. 3.358, paragraph (c)(3) is revised, and redesignated 
paragraph (c)(6) is amended by revising the third sentence, to read as 
follows:


Sec. 3.358  Determinations for disability or death from 
hospitalization, medical or surgical treatment, examinations or 
vocational rehabilitation training (Sec. 3.800).

* * * * *
    (c) * * *
    (3) Compensation is not payable for the necessary consequences of 
medical or surgical treatment or examination properly administered with 
the express or implied consent of the veteran, or, in appropriate 
cases, the veteran's representative. ``Necessary consequences'' are 
those which are certain to result from, or were intended to result 
from, the examination or medical or surgical treatment administered. 
Consequences otherwise certain or intended to result from a treatment 
will not be considered uncertain or unintended solely because it had 
not been determined at the time consent was given whether that 
treatment would in fact be administered.
* * * * *
    (6) * * * If additional disability results from medical or surgical 
treatment or examination through negligence or other wrongful acts or 
omissions on the part of such a nursing home, its employees, or its 
agents, entitlement does not exist under this section unless there was 
an act or omission on the part of the Department of Veterans Affairs 
independently giving rise to such entitlement and such acts on the part 
of both proximately caused the additional disability.

(Authority: 38 U.S.C. 1151)

[FR Doc. 95-6510 Filed 3-15-95; 8:45 am]
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