[Federal Register Volume 64, Number 109 (Tuesday, June 8, 1999)]
[Rules and Regulations]
[Pages 30392-30393]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-14250]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 3 and 4

RIN 2900-AH41


Service Connection Of Dental Conditions For Treatment Purposes

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends the Department of Veterans Affairs 
adjudication regulations for determining whether dental conditions are 
service-connected for purposes of eligibility for outpatient dental 
treatment. This amendment clarifies requirements for service connection 
of dental conditions and provides that VA will consider certain dental 
conditions service-connected for treatment purposes if they are shown 
in service after a period of 180 days.

DATES: Effective Date: June 8, 1999.

FOR FURTHER INFORMATION CONTACT: Lorna Fox, Consultant, Regulations 
Staff, Compensation and Pension Service, Veterans Benefits 
Administration, Department of Veterans Affairs, 810 Vermont Ave., NW., 
Washington, DC 20420, (202) 273-7223.

SUPPLEMENTARY INFORMATION: On February 24, 1997, VA published in the 
Federal Register (62 FR 8201), a proposal to amend those sections of 38 
CFR part 3 and part 4 that govern whether dental conditions are 
service-connected for purposes of eligibility for outpatient dental 
treatment under 38 U.S.C. 1712 (implemented by 38 CFR 17.161). 
Interested persons were invited to submit written comments, suggestions 
or objections. We received comments from Paralyzed Veterans of America 
and one individual.
    Section 1712 of 38 U.S.C. states that veterans with noncompensable 
service-connected dental conditions are entitled to a one-time 
correction of the dental conditions by VA under certain circumstances. 
VA regulations at 38 CFR 3.381 and 3.382 previously stated that for 
purposes of outpatient dental treatment, service connection for certain 
noncompensable dental conditions is warranted only if the conditions 
are shown after a `reasonable period of service.' We proposed to 
replace the subjective term ``reasonable period of service'' with the 
objective requirement of 180 days or more of active service.
    One commenter stated that a 180 day requirement ``seems to clash 
significantly'' with both 38 U.S.C. 1111, which requires VA to consider 
every veteran to have been in sound condition when examined, accepted 
and enrolled for service, except as to defects, infirmities, or 
disorders noted at the time, and Sec. 1153, which requires VA to 
consider preexisting injury or disease to have been aggravated by 
active military service where there is an increase in disability during 
such service that was not due to the natural progress of the disease. 
Section 1111 states that ``[f]or the purposes of section 1110 of this 
title,'' the presumption of soundness shall apply. Section 1110 of 
title 38, United States Code, applies to payment of compensation for 
disability. Section 1111 is therefore not applicable to determining 
eligibility to outpatient dental treatment under 38 U.S.C. 1712. In 
addition, section 1153 of title 38, United States Code, applies only to 
disabilities. Because noncompensable dental conditions are not 
considered to be disabilities (see former 38 CFR 4.149) section 1153 is 
also not applicable to 38 U.S.C. 1712 determinations. Therefore, we 
make no change based on this comment. We acknowledge that in the notice 
of proposed rulemaking, we stated that, for purposes of consistency 
with 38 CFR 3.304(b), VA was proposing to delete 38 CFR 3.381(d), which 
stated that the presumption of soundness does not apply to 
noncompensable dental conditions. 62 FR 8201, 8202 (1997). 
Notwithstanding this statement, as explained above,

[[Page 30393]]

based upon the plain language of 38 U.S.C. 1110 and 1111, we do not 
believe that the presumption of soundness is applicable to 
determinations of service connection under Sec. 3.381.
    The commenter also states that VA has extended ``even further the 
`reasonable period of service' requirement established in the (Court of 
Veterans Appeals) Manio decision which held, in essence, that 120 days, 
not 180 days as proposed, was sufficient to meet that requirement.'' As 
explained in the notice of proposed rulemaking, the Court of Veterans 
Appeals held in Manio v. Derwinski, 1 Vet. App. 140 (1991), that four 
months satisfied the reasonable-period-of-service requirement ``under 
the facts of that case.'' 62 FR 8202. In our view, 180 days better 
defines the former reasonable-period-of-service requirement than 120 
days. In fact, we possibly could have further lengthened the period 
since, as stated in the proposal ``[d]ental caries and other dental 
pathology take time to develop, often a year or two in permanent 
teeth'' (62 FR 8202). Even so, we believe the 180 days is reasonable. 
This also is consistent with the fact that the Academy of General 
Dentistry recommends that a patient visit a dentist at least every six 
months so that the dentist can monitor the patient's oral health and 
help prevent problems from arising. Under these circumstances, it is 
more likely than not that caries or pathology which become apparent 
within the first 180 days of service pre-existed that service.
    Another commenter stated that VA should amend the eligibility rules 
to allow outpatient dental care for veterans with wartime service who 
are receiving long-term nursing home care without regard to other 
eligibility requirements. While we sympathize with the health care 
needs of veterans receiving nursing care, the eligibility criteria for 
outpatient dental care are specified in 38 U.S.C 1712, which contains 
no provision regarding eligibility based on nursing home care. Since we 
are not free to create by regulation eligibility that is not authorized 
by statute, we make no change based on this comment.
    VA appreciates the comments submitted in response to the proposed 
rule, which is now adopted without change.
    The Secretary hereby certifies that this proposed amendment will 
not have a significant economic impact on a substantial number of small 
entities as they are defined in the Regulatory Flexibility Act (RFA), 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), the proposed amendment 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

38 CFR Part 3

    Administrative practice and procedure, Claims, Disability Benefits, 
Health care, Pensions, Veterans.

38 CFR Part 4

    Disability benefits, Individuals with disabilities, Pensions, 
Veterans.

    Approved: April 21, 1999.
Togo D. West, Jr.,
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 3.381 is revised to read as follows:


Sec. 3.381  Service connection of dental conditions for treatment 
purposes.

    (a) Treatable carious teeth, replaceable missing teeth, dental or 
alveolar abscesses, and periodontal disease will be considered service-
connected solely for the purpose of establishing eligibility for 
outpatient dental treatment as provided in Sec. 17.161 of this chapter.
    (b) The rating activity will consider each defective or missing 
tooth and each disease of the teeth and periodontal tissues separately 
to determine whether the condition was incurred or aggravated in line 
of duty during active service. 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.
    (c) In determining service connection, the condition of teeth and 
periodontal tissues at the time of entry into active duty will be 
considered. Treatment during service, including filling or extraction 
of a tooth, or placement of a prosthesis, will not be considered 
evidence of aggravation of a condition that was noted at entry, unless 
additional pathology developed after 180 days or more of active 
service.
    (d) The following principles apply to dental conditions noted at 
entry and treated during service:
    (1) Teeth noted as normal at entry will be service-connected if 
they were filled or extracted after 180 days or more of active service.
    (2) Teeth noted as filled at entry will be service-connected if 
they were extracted, or if the existing filling was replaced, after 180 
days or more of active service.
    (3) Teeth noted as carious but restorable at entry will not be 
service-connected on the basis that they were filled during service. 
However, new caries that developed 180 days or more after such a tooth 
was filled will be service-connected.
    (4) Teeth noted as carious but restorable at entry, whether or not 
filled, will be service-connected if extraction was required after 180 
days or more of active service.
    (5) Teeth noted at entry as non-restorable will not be service-
connected, regardless of treatment during service.
    (6) Teeth noted as missing at entry will not be service connected, 
regardless of treatment during service.
    (e) The following will not be considered service-connected for 
treatment purposes:
    (1) Calculus;
    (2) Acute periodontal disease;
    (3) Third molars, unless disease or pathology of the tooth 
developed after 180 days or more of active service, or was due to 
combat or in-service trauma; and
    (4) Impacted or malposed teeth, and other developmental defects, 
unless disease or pathology of these teeth developed after 180 days or 
more of active service.
    (f) Teeth extracted because of chronic periodontal disease will be 
service-connected only if they were extracted after 180 days or more of 
active service.

(Authority: 38 U.S.C. 1712)


Sec. 3.382  [Removed and Reserved]

    3. Section 3.382 is removed and reserved.

PART 4--SCHEDULE FOR RATING DISABILITIES

    4. The authority citation for part 4 continues to read as follows:

    Authority: 38 U.S.C. 1155, unless otherwise noted.


Sec. 4.149  [Removed and Reserved]

    5. Section 4.149 is removed and reserved.

[FR Doc. 99-14250 Filed 6-7-99; 8:45 am]
BILLING CODE 8320-01-P