[Federal Register Volume 62, Number 107 (Wednesday, June 4, 1997)]
[Proposed Rules]
[Pages 30547-30548]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-14509]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AI42


Claims Based on Aggravation of a Nonservice-Connected Disability

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) is proposing to amend 
its adjudication regulations concerning secondary service connection 
for certain disabilities. This proposal is based on a recent decision 
by the United States Court of Veterans Appeals (CVA). The intended 
effect of this amendment is to conform VA regulations to the CVA 
decision, which clarified the circumstances under which veterans may be 
compensated for disabilities related to service-connected conditions.

DATES: Comments must be received by VA on or before August 4, 1997.

ADDRESSES: Mail or hand deliver written comments to: Director, Office 
of Regulations Management, Room 1154, 810 Vermont Ave., NW., 
Washington, DC 20420. Comments should indicate that they are submitted 
in response to ``RIN 2900-AI42.'' All written comments will be made 
available for public inspection at the above address in the Office of 
Regulations Management, Room 1158, between the hours of 8:00 a.m. and 
4:30 p.m., Monday through Friday (except holidays).

FOR FURTHER INFORMATION CONTACT: Judith Veres, Consultant, Judicial 
Review Staff, Compensation and Pension Service, Veterans Benefits 
Administration, Department of Veterans Affairs, 810 Vermont Ave., NW., 
Washington, DC 20420, (202) 273-7240.

SUPPLEMENTARY INFORMATION: Under the provisions of 38 U.S.C. 1110 and 
1131, VA may establish service connection for disabilities resulting 
from disease or injury incurred or aggravated during a veteran's period 
of active military, naval, or air service. Once service connection is 
established for a veteran's disability, VA may authorize monetary 
compensation depending on the disability's level of severity. In 
addition, under 38 CFR 3.310, VA may establish service connection for a 
disability which is proximately due to or the result of a service-
connected disease or injury.
    In Allen v. Brown, 7 Vet. App. 439, 448 (1995), issued March 17, 
1995, CVA held that, as a matter of law, when aggravation of a 
veteran's nonservice-connected condition is proximately due to or the 
result of a service-connected condition, the veteran is entitled to 
compensation for the degree of disability (but only that degree) over 
and above the degree of disability existing prior to aggravation. Prior 
to CVA's holding, VA paid compensation for a disability on a secondary 
basis only if the secondary condition was entirely caused by a service-
connected disability. To conform Sec. 3.310 to CVA's decision, VA is 
proposing to amend 38 CFR 3.310 to authorize compensation for the 
incremental increase in severity of a nonservice-connected disability 
which is proximately due to or the result of a service-connected 
condition.
    In order to determine whether, and to what extent, a service-
connected disease or injury has aggravated a non service-connected 
disability, VA must be able to determine the pre-aggravation severity 
of the disability in question. We, therefore, propose to stipulate that 
VA will not concede aggravation unless it has medical evidence, which 
pre-existed the aggravation, sufficient to establish the pre-
aggravation severity of the condition. Since some conditions are 
inherently progressive and worsen naturally over time, we propose to 
specify that VA will not service-connect any increase in severity that 
is due to natural progression. These requirements would be consistent 
with the manner in which VA determines the degree of in-service 
aggravation of pre-existing disabilities, i.e., by comparing the 
severity of the condition when the veteran entered and left active 
military

[[Page 30548]]

service and excluding from consideration any increase in severity that 
is due to the natural progression of the condition. As with all other 
disabilities evaluated for VA purposes, the level of compensation would 
be determined under the provisions of VA's Schedule for Rating 
Disabilities.
    The Secretary hereby certifies that this regulatory amendment 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. The reason for this certification is that this 
amendment would not directly affect any small entities. Only VA 
beneficiaries could be directly affected. Therefore, pursuant to 5 
U.S.C. 605(b), this amendment is exempt from the initial and final 
regulatory flexibility analysis requirements of sections 603 and 604.

    The Catalog of Federal Domestic Assistance program number is 
64.109.

List of Subjects in 38 CFR Part 3

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

    Approved: May 27, 1997.
Jesse Brown,
Secretary of Veterans Affairs.

    For the reasons set out in the preamble, 38 CFR part 3 is proposed 
to be 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. Section 3.310 is amended by revising the section ledading; by 
redesignating paragraph (b) as paragraph (c); and by adding a new 
paragraph (b) to read as follows:


Sec. 3.310   Disabilities that are proximately due to, or aggravated 
by, service-connected disease or injury.

* * * * *
    (b) Aggravation of nonservice-connected disabilities. Any increase 
in severity of a nonservice-connected disability that is proximately 
due to or the result of a service-connected disease or injury, rather 
than the normal progression of the disability, shall be service-
connected. However, VA will not concede that a nonservice-connected 
disability was aggravated by a service-connected disease or injury in 
the absence of medical evidence extant before the aggravation 
sufficient to establish the pre-aggravation severity of the disability. 
The rating activity will determine the pre- and post-aggravation levels 
of severity under the Schedule for Rating Disabilities and determine 
the extent of aggravation by deducting the pre-aggravation level of 
severity, as well as any increase in severity due to the normal 
progression of the disability, from the current level.

(Authority: 38 U.S.C. 1110 and 1131)
* * * * *
[FR Doc. 97-14509 Filed 6-3-97; 8:45 am]
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