[Federal Register Volume 61, Number 101 (Thursday, May 23, 1996)]
[Rules and Regulations]
[Pages 25787-25789]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12924]
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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: Final rule.
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SUMMARY: This document adopts as a final rule with minor,
nonsubstantive changes an interim rule amending Department of Veterans
Affairs (VA) adjudication regulations concerning compensation for
disability or death resulting from VA hospitalization, medical or
surgical treatment, or examination. Before the interim rule, to
establish entitlement to compensation for adverse results of medical or
surgical treatment, the regulations required that VA be at fault or
that an accident occur. In order to conform the regulations to a recent
United States Supreme Court decision, the interim rule deleted the
fault-or-accident requirement and instead provided that compensation is
not payable for the necessary consequences of proper treatment to which
the veteran consented.
EFFECTIVE DATE: This final rule is effective July 22, 1996.
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. This
interpretation was codified at 38 CFR 3.358(c)(3).
In a recent decision, Brown v. Gardner, 115 S. Ct. 552 (1994),
upholding a lower court decision, the U.S. Supreme Court held that the
fault-or-accident requirement in former 38 CFR 3.358(c)(3) was
inconsistent with the plain language of 38 U.S.C. 1151 and that no
fault requirement was implicit in the statute. The Supreme Court
determined 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, but that compensation is not payable for the
necessary consequences of treatment to which a veteran consented.
In the Federal Register of March 16, 1995 (60 FR 14222), VA
published an interim rule amending 38 CFR 3.358(c) in order to
implement 38 U.S.C. 1151 as interpreted in that decision of the Supreme
Court. Interested persons were invited to submit written comments on or
before May 15, 1995. We received comments from the Paralyzed Veterans
of America and from a concerned individual.
One commenter, observing that VA may provide disability
examinations for beneficiaries of the British Imperial and Canadian
governments and for pensioners of other nations allied with the U.S.
during World War I and World War II, and that VA may conduct
examinations for other Federal agencies (e.g., Office of Personnel
Management, Railroad Retirement Board), asked whether VA intends to
cover under 38 U.S.C. 1151 those examinees. Since the plain language of
38 U.S.C. 1151 provides for payment of benefits only for a veteran, VA
has no authority to award Sec. 1151 benefits for anyone who is not a
veteran.
The same commenter suggested substituting the term ``veteran'' for
the
[[Page 25788]]
terms ``beneficiary'' and ``claimant'' in 38 CFR 3.358 (b)(1) and
(c)(5) respectively if VA's intention was to restrict payment of
compensation under 38 U.S.C. 1151 for veterans only. Since the statute
authorizes the payment of benefits only for veterans, we have made the
suggested changes. These changes are not substantive; they merely
conform the regulation's terms to the statute's terms.
One commenter stated that because VA changed the regulation as a
result of the Supreme Court's decision in Brown v. Gardner, which he
contends found that the relevant portions of VA's prior regulations
were void ab initio, the effective date of the regulatory change should
be the date the legislation now codified as 38 U.S.C. 1151 was
originally enacted rather than November 25, 1991, the date of the Court
of Veterans Appeals decision that invalidated former Sec. 3.358(c)(3).
We make no change in the effective date of the interim rule based
on this comment. In our opinion, choosing November 25, 1991, as the
effective date is rational. Furthermore, it is consistent with VA
policies concerning the finality of decided claims and the application
of court decisions invalidating VA regulations or statutory
interpretations.
VA's General Counsel, in a precedent opinion issued March 25, 1994
(VAOPGCPREC 9-94) (see 59 FR 27307, May 26, 1994), held that decisions
of the Court of Veterans Appeals invalidating VA regulations or
statutory interpretations do not have retroactive effect in relation to
prior finally adjudicated claims, but should be given retroactive
effect as they relate to claims still open on direct review. In
reaching this conclusion, the General Counsel quoted the following
passage from the U.S. Supreme Court's opinion in Harper v. Virginia
Dept. of Taxation, 113 S. Ct. 2510 (1993):
When this Court applies a rule of federal law to the parties
before it, that rule is the controlling interpretation of federal
law and must be given full retroactive effect in all cases still
open on direct review and as to all events, regardless of whether
such events predate or postdate our announcement of the rule.
Id. at 2517. That General Counsel precedent opinion is binding on VA
and requires that VA apply the courts' interpretation of 38 U.S.C. 1151
to claims still open on direct review on November 25, 1991, the date of
the Court of Veterans Appeals decision, but not to prior finally
adjudicated claims.
By being effective from the date of the Court of Veterans Appeals
decision invalidating former Sec. 3.358(c)(3), the new rule will be
applied just as VAOPGCPREC 9-94 requires the court decision to be
applied. With an effective date of November 25, 1991, the new rule will
apply to all claims still open on direct review on that date, whether
by an agency of original jurisdiction or the Board of Veterans'
Appeals. Moreover, the effective date of any award based on the new
rule's application to such a claim will be in accordance with 38 U.S.C.
5110. However, the new rule will not retroactively apply to claims
already finally decided as of November 25, 1991. Although those claims
can be reopened with new and material evidence or administratively
reviewed under the liberalized provisions of the new rule, no award
based on the new rule's application to such a claim will be effective
before that date.
In the absence of new and material evidence to reopen a claim or
another reason to reconsider a Board of Veterans' Appeals decision, a
finally decided claim remains final unless it involved clear and
unmistakable or obvious error. By being effective from November 25,
1991, the new rule will also be consistent with this policy of
finality. Claims pending on that date will receive the benefit of the
new, more liberal interpretation of 38 U.S.C. 1151. Claims finally
decided by that date, although decided under the old, subsequently
invalidated rule, in the absence of new and material evidence to reopen
or another reason to reconsider, will remain final unless they involved
clear and unmistakable or obvious error. Moreover, we do not consider
the application of the old rule before November 25, 1991, to have been
clear and unmistakable or obvious error. See 38 CFR 3.105; VAOPGCPREC
25-95 (December 6, 1995).
The same commenter also objected to using 38 U.S.C. 1151 as the
authority citation for paragraph (c)(6). In addition to containing
information relating to 38 U.S.C. 1151, this paragraph contains
information relating to 38 U.S.C. 1720 (non-VA nursing home care).
Therefore, we are changing the authority citation to include both 38
U.S.C. 1151 and 1720.
Before the interim rule, 38 CFR 3.358(c)(4) provided that
compensation would be payable for disability resulting from
transportation while in a hospitalized status only if injury or death
proximately resulted from VA's fault. The interim rule removed former
paragraph (c)(4). A commenter suggests adding language to 38 CFR
3.358(a) expressly providing for 38 U.S.C. 1151 coverage where
additional disability results from transportation while in a
hospitalized status.
As was true before the courts invalidated VA's former
interpretation of 38 U.S.C. 1151, claims based on additional disability
or death resulting from an injury suffered as a result of
transportation while in a hospitalized status are held to the same
standard as claims based on additional disability or death resulting
from an injury otherwise suffered as a result of hospitalization.
Former paragraph (c)(4) was added to the regulation because of a
decision of the Administrator of Veterans' Affairs holding that
injuries suffered while being transported in a hospitalized status
could give rise to eligibility under the predecessor provisions of 38
U.S.C. 1151. Transportation while hospitalized can still give rise to
eligibility even though the old fault-or-accident standard is no longer
valid. However, since the rule's general term ``hospitalization''
encompasses the particular circumstances of transportation while in a
hospitalized status, we see no need to specify a provision for
transportation while in a hospitalized status.
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 7, 1996.
Jesse Brown,
Secretary of Veterans Affairs.
For the reasons set forth in the preamble, the interim rule
amending 38 CFR Part 3, which was published at 60 FR 14222 on March 16,
1995, is adopted as a final rule with the following changes:
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 (b)(1) introductory text is amended by
removing ``beneficiary's'' and adding, in its place, ``veteran's'';
paragraph (c)(4) is amended by removing ``claimant's'' and
``claimants'' and adding, in their respective places, ``veteran's'' and
``veterans''; and an authority citation is added immediately following
paragraph (c)(6) to read as follows:
[[Page 25789]]
Sec. 3.358 Determinations for disability or death from
hospitalization, medical or surgical treatment, examinations or
vocational rehabilitation training (Sec. 3.800).
* * * * *
(Authority: 38 U.S.C. 1151, 1720.)
[FR Doc. 96-12924 Filed 5-22-96; 8:45 am]
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