[Federal Register Volume 66, Number 140 (Friday, July 20, 2001)]
[Proposed Rules]
[Pages 37940-37941]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-18207]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 3 and 4

RIN 2900-AK66


Special Monthly Compensation for Women Veterans Who Lose a Breast 
as a Result of a Service-Connected Disability

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: This document proposes to amend the Department of Veterans 
Affairs (VA) adjudication regulations to provide for payment of special 
monthly compensation for a woman veteran who loses one or both breasts 
as a result of service-connected disability. The intended effect of 
this amendment is to implement legislation authorizing VA to provide 
this benefit.

DATES: Comments must be received by VA on or before August 20, 2001.

ADDRESSES: Mail or hand-deliver written comments to: Director, Office 
of Regulations Management (02D), Department of Veterans Affairs, 810 
Vermont Ave., NW, Room 1154, Washington, DC 20420; or fax comments to 
(202) 273-9289; or e-mail comments to [email protected]. 
Comments should indicate that they are submitted in response to ``RIN 
2900-AK66.'' All comments received will be available for public 
inspection 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: Caroll McBrine, M.D., Consultant, 
Regulations Staff (211A), Compensation and Pension Service, Veterans 
Benefits Administration, 810 Vermont Avenue, NW., Washington, DC 20420, 
telephone (202) 273-7210.

SUPPLEMENTARY INFORMATION: Section 1114(k) of title 38, United States 
Code, provides a list of service-connected disabilities for which 
Congress has authorized a special benefit to be paid, independent of 
any other compensation provided under section 1114 for schedular 
disability rated under 38 CFR part 4, VA's Schedule for Rating 
Disabilities. This additional compensation is commonly referred to as 
special monthly compensation ``k'' or SMC ``k.'' Section 302 of the 
Veterans Benefits and Health Care Improvement Act of 2000, Public Law 
106-419, 114 Stat. 1822, amended section 1114(k) by making anatomical 
loss of one or both breasts (including loss by mastectomy) by a woman 
veteran a condition warranting this special monthly compensation.
    The provisions governing special monthly compensation under 38 
U.S.C. 1114(k) are codified in title 38 of the Code of Federal 
Regulations under paragraph (a) of Sec. 3.350, which is titled 
``Special monthly compensation ratings.'' Paragraph (a) currently 
states that special monthly compensation under 38 U.S.C. 1114(k) is 
payable for each anatomical loss or loss of use of one hand, one foot, 
both buttocks, one or more creative organs, blindness of one eye having 
only light perception, deafness of both ears, having absence of air and 
bone conduction, or complete organic aphonia with constant inability to 
communicate by speech. In order to implement Public Law 106-419, we 
propose to remove ``or'' preceding ``complete organic aphonia'' in this 
paragraph and to add following ``speech'' the phrase ``or, in the case 
of a woman veteran, the anatomical loss of one or both breasts 
(including loss by mastectomy).''
    We also propose to add new paragraph (7) under paragraph (a) to 
define ``anatomical loss of a breast'' for purposes of this benefit. 
Consistent with the assignment of special monthly compensation for 
certain other losses, for example, for loss of use of a foot, only when 
there is complete, but not partial, peroneal nerve paralysis, we 
propose to require that there be complete loss of breast tissue in 
order to qualify for this benefit. Therefore ``anatomical loss of a 
breast'' would exist when there is complete surgical removal of breast 
tissue (or the equivalent loss of breast tissue due to injury). Various 
types of breast surgery--radical mastectomy, modified radical 
mastectomy, simple (or total) mastectomy, and wide local excision 
(including partial mastectomy, lumpectomy, tylectomy, segmentectomy, 
and quadrantectomy)--are defined under diagnostic code 7626 (breast 
surgery) in 38 CFR 4.116. Radical mastectomy, modified radical 
mastectomy, and simple (or total) mastectomy would be the equivalent of 
``anatomical loss of a breast'' because they entail complete removal of 
breast tissue, but wide local excision, defined as removal of a portion 
of the breast tissue, would not be because it involves less than 
complete removal of breast tissue. We therefore propose that paragraph 
(7) state that ``anatomical loss of a breast'' exists when there is 
complete surgical removal of breast tissue (or the equivalent loss of 
breast tissue due to injury) and that as defined in 38 CFR 4.116, 
radical mastectomy, modified radical mastectomy, and simple (or total) 
mastectomy result in anatomical loss of a breast, but wide local 
excision, with or without significant alteration of size or form, does 
not.
    The exclusion of wide local excision, which can range from 
undetectable removal of a small amount of breast tissue up to any 
extent of breast surgery less than a simple (total) mastectomy, would 
eliminate the need to attempt to define how much removal of breast 
tissue less than complete removal would qualify for the benefit. There 
is no standard or feasible way to define such partial removal of breast 
tissue, so proposing that nothing short of total mastectomy (or 
equivalent loss of breast tissue due to injury) will qualify as 
anatomical loss of a breast would ensure consistency in assigning this 
benefit.
    In addition, as we have done for other conditions that warrant 
special monthly compensation listed in 38 CFR 4.116, the section of the 
rating schedule that addresses gynecological conditions and disorders 
of the breast, we propose to annotate all evaluations under diagnostic 
code 7626 (breast surgery) except for zero percent (which is assigned 
for wide local excision) with a reference to a footnote instructing 
raters to review for entitlement to Special Monthly Compensation. The 
footnote, which is in the current regulation, reads: ``Review for 
entitlement to special monthly compensation under Sec. 3.350 of this 
chapter.'' We also propose to amend an existing note at the beginning 
of Sec. 4.116, which now reads in part, ``When evaluating any claim 
involving loss or loss of use of one or more creative organs, refer to 
Sec. 3.350 of this chapter to determine whether the veteran may be 
entitled to special

[[Page 37941]]

monthly compensation,'' to include a reference to anatomical loss of 
one or both breasts. These provisions will promote consideration of the 
new provision by raters.

Paperwork Reduction Act

    This document contains no provisions constituting a collection of 
information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

Regulatory Flexibility Act

    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 (RFA), 5 
U.S.C. 601-612. The reason for this certification is that these 
amendments would not directly affect any small entities. Only VA 
beneficiaries could be directly affected. Therefore, pursuant to 5 
U.S.C. 605(b), these amendments are exempt from the initial and final 
regulatory flexibility analysis requirements of sections 603 and 604.
    There is no Catalog of Federal Domestic Assistance program number 
for this benefit.

List of Subjects

38 CFR Part 3

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

38 CFR Part 4

    Disability benefits, Pension, Individuals with disabilities, 
Veterans.

    Approved: July 12, 2001.
Anthony J. Principi,
Secretary of Veterans Affairs.
    For the reasons set forth in the preamble, 38 CFR part 3 is 
proposed to be 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. In Sec. 3.350, paragraph (a) introductory text, the first 
sentence is revised; and a new paragraph (a)(7) is added immediately 
following the authority citation for paragraph (a)(6), to read as 
follows:


Sec. 3.350  Special monthly compensation ratings.

* * * * *
    (a) * * * Special monthly compensation under 38 U.S.C. 1114(k) is 
payable for each anatomical loss or loss of use of one hand, one foot, 
both buttocks, one or more creative organs, blindness of one eye having 
only light perception, deafness of both ears, having absence of air and 
bone conduction, complete organic aphonia with constant inability to 
communicate by speech or, in the case of a woman veteran, the 
anatomical loss of one or both breasts (including loss by mastectomy). 
* * *
* * * * *
    (7) Anatomical loss of a breast exists when there is complete 
surgical removal of breast tissue (or the equivalent loss of breast 
tissue due to injury). As defined in 38 CFR 4.116, radical mastectomy, 
modified radical mastectomy, and simple (or total) mastectomy result in 
anatomical loss of a breast, but wide local excision, with or without 
significant alteration of size or form, does not.

(Authority: 38 U.S.C. 501, 1114(k))

* * * * *

PART 4--SCHEDULE FOR RATING DISABILITIES

Subpart B--Disability Ratings

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

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

    4. Section 4.116, Note 2 is amended by removing ``one or more 
creative organs,'' and adding, in it place, ``one or more creative 
organs or anatomical loss of one or both breasts,''.
    5. Diagnostic code 7626 in 38 CFR 4.116 is revised to read as 
follows:


Sec. 4.116  Schedule of ratings--gynecological conditions and disorders 
of the breast.

------------------------------------------------------------------------
                                                                  Rating
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                  *        *        *        *        *
7626  Breast, surgery of:
Following radical mastectomy:
  Both.........................................................   \1\ 80
  One..........................................................   \1\ 50
Following modified radical mastectomy:
  Both.........................................................   \1\ 60
  One..........................................................   \1\ 40
Following simple mastectomy or wide local excisio with
 significant alteration of size or form:
  Both.........................................................   \1\ 50
  One..........................................................   \1\ 30
Following wide local excision without significant alteration of
 size or form:
  Both or one..................................................       0
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Note: For VA purposes:
\1\ Radical mastectomy means removal of the entire breast, underlying
  pectoral muscles, and regional lymph nodes up to the coracoclavicular
  ligament.
\2\ Modified radical mastectomy means removal of the entire breast and
  axillary lymph nodes (in continuity with the breast). Pectoral muscles
  are left intact.
\3\ Simple (or total) mastectomy means removal of all of the breast
  tissue, nipple, and a small portion of the overlying skin, but lymph
  nodes and muscles are left intact.
\4\ Wide local excision (including partial mastectomy, lumpectomy,
  tylectomy, segmentectomy, and quadrantectomy) means removal of a
  portion of the breast tissue.

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[FR Doc. 01-18207 Filed 7-19-01; 8:45 am]
BILLING CODE 8320-01-P