[Federal Register Volume 60, Number 213 (Friday, November 3, 1995)]
[Rules and Regulations]
[Pages 55791-55792]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27278]



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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AH10


Determinations of Incompetency and Competency

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends the Department of Veterans Affairs (VA) 
adjudication regulations concerning determinations of mental 
incompetency to make clear that only rating boards are authorized to 
make determinations of incompetency for purposes of VA benefits and VA 
insurance.

EFFECTIVE DATE: This amendment is effective November 3, 1995.

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: On May 4, 1995, VA published in the Federal 
Register (60 FR 22016) a proposed rule intended to clarify that rating 
agencies have sole authority to make determinations of competency and 
incompetency for purposes of insurance and payment of VA benefits. 
Interested parties were invited to submit written comments on or before 
July 3, 1995. We received no comments.
    Based on the rationale set forth in the proposed rule and this 
document, the provisions of the proposed rule are adopted as a final 
rule with nonsubstantive changes to paragraph (b)(1) of Sec. 3.353. 
These changes clarify that VA determinations of competency or 
incompetency affect only VA benefits, i.e., insurance, discontinuance 
and payment of amounts withheld because of an estate in excess of 
$1,500, and disbursement of benefits. This will ensure that this 
paragraph would not be interpreted to concern such things as the 
ability of the veteran to provide informed consent for medical 
treatment, or the ability of VA physicians and other VA medical 
professionals to determine a patient's mental capacity in support of 
guardianship and conservatorship petitions in state courts.
    The Secretary 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 amendment will directly affect VA beneficiaries but 

[[Page 55792]]
will not affect small businesses. Therefore, pursuant to 5 U.S.C. 
606(b), this 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 
64.104, 64.105, 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: October 26, 1995.
Jesse Brown,
Secretary of 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 3.353 is amended by revising paragraph (b) to read as 
follows:


Sec. 3.353  Determinations of incompetency and competency.

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    (b) Authority. (1) Rating agencies have sole authority to make 
official determinations of competency and incompetency for purposes of: 
insurance (38 U.S.C. 1922), the discontinuance and payment of amounts 
withheld because of an estate in excess of $1,500 (Sec. 3.557(b)), and, 
subject to Sec. 13.56 of this chapter, disbursement of benefits. Such 
determinations are final and binding on field stations for these 
purposes.
    (2) Where the beneficiary is rated incompetent the Adjudication 
Officer will inform the Veterans Services Officer of jurisdiction of 
that fact. The Veterans Services Officer will develop information as to 
the beneficiary's social, economic and industrial adjustment and 
appoint (or recommend appointment of) a fiduciary as provided in 
Sec. 13.55 of this chapter, select a method of disbursing payment as 
provided in Sec. 13.56 of this chapter, or in the case of a married 
beneficiary, appoint the beneficiary's spouse to receive payments as 
provided in Sec. 13.57 of this chapter. The Adjudication Officer will 
authorize disbursement of the benefit in the manner selected by the 
Veterans Services Officer.
    (3) If in the course of fulfilling the responsibilities assigned in 
paragraph (b)(2) the Veterans Services Officer develops evidence 
indicating that the beneficiary may be capable of administering the 
funds payable without limitation, he or she will refer that evidence to 
the rating agency with a statement as to his or her findings. The 
rating agency will consider this evidence, together with all other 
evidence of record, to determine whether its prior determination of 
incompetency should remain in effect. Reexamination may be requested as 
provided in Sec. 3.327(a) if necessary to properly evaluate the 
beneficiary's mental capacity to contract or manage his or her own 
affairs.
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[FR Doc. 95-27278 Filed 11-2-95; 8:45 am]
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