[Federal Register Volume 66, Number 141 (Monday, July 23, 2001)]
[Rules and Regulations]
[Pages 38158-38159]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-18172]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 20

RIN 2900-AK52


Rules of Practice: Medical Opinions From the Veterans Health 
Administration

AGENCY: Department of Veterans Affairs.

ACTION: Interim final rule with request for comments.

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SUMMARY: This document amends the Department of Veterans Affairs' (VA) 
Appeals Regulations to clarify that the Board of Veterans' Appeals 
(Board) may obtain medical opinions from health care professionals in 
VA's Veterans Health Administration.

DATES: Effective Date: This interim final rule is effective July 23, 
2001.
    Comment Date: Comments must be received on or before September 21, 
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,

[[Page 38159]]

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-AK52.'' All comments 
received will be available for public inspection in the Office of 
Regulations Management, Room 1158, between the hours of 8 a.m. and 4:30 
p.m., Monday through Friday (except holidays).

FOR FURTHER INFORMATION CONTACT: Steven L. Keller (01C), Senior Deputy 
Vice Chairman, Board of Veterans' Appeals, Department of Veterans 
Affairs, 810 Vermont Avenue, NW., Washington, DC 20420 (202-565-5978).

SUPPLEMENTARY INFORMATION: The Board of Veterans' Appeals (Board) is an 
administrative body that decides appeals from denials of claims for 
veterans' benefits. The Board's 59 Members decide about 35,000 to 
40,000 cases per year.
    For the purpose of deciding appeals, the Board sometimes obtains 
medical opinions from the Veterans Health Administration (VHA), the 
part of VA that provides medical treatment to veterans. The Board's 
current rules of practice at 38 CFR 20.901(a) state that ``[t]he Board 
may obtain a medical opinion from the Chief Medical Director of the 
Veterans Health Administration of the Department of Veterans Affairs on 
medical questions involved in the consideration of an appeal when, in 
its judgment, such medical expertise is needed for equitable 
disposition of an appeal.'' This provision has always been intended to 
reflect that the Board may obtain medical opinions from appropriate 
health care professionals in VHA. However, there has been some 
confusion as to whether this provision permitted the Board to obtain a 
medical opinion from an individual in VHA other than the Under 
Secretary for Health (the title of Chief Medical Director was changed 
to Under Secretary for Health). This document amends the rules of 
practice at Sec. 20.901(a) by deleting the reference to ``Chief Medical 
Director'' and by clarifying that the Board may obtain medical opinions 
from appropriate health care professionals in VHA.
    Under 38 U.S.C. 7109 and 38 CFR 20.901(d), the Board can request an 
expert medical opinion, in addition to that available within the 
Department. Under 38 CFR 20.901, the Board can also request opinions 
from the ``Chief Medical Director,'' id. 20.901(a); the Armed Forces 
Institute of Pathology, id. 20.901(b); and the Department's General 
Counsel, id. 20.901(c). The U.S. Court of Appeals for Veterans Claims 
has both recognized the Board's authority to seek a medical opinion 
under 38 CFR 20.901(a), Perry v. Brown, 9 Vet. App. 2, 6 (1996), and, 
in a 1998 case, noted that the Board's authority to obtain an expert 
medical opinion irrespective of 38 U.S.C. 7109 was ``uncontested,'' 
Winsett v. West, 11 Vet. App. 420, 426 (1998), aff'd, 217 F.3d 854 
(Fed. Cir. 1999) (unpublished decision), cert. denied, 120 S.Ct. 1251 
(2000).
    The Board has been using VHA medical opinions under 38 CFR 
20.901(a) for many years. For example, from Fiscal Year (FY) 1993 
through FY 1999, Board Members requested 1,235 such opinions. Reports 
of the Chairman, Board of Veterans' Appeals, Fiscal Years 1993-1999. In 
FY 1999, the Board requested 482 advisory opinions from VHA physicians, 
compared with 100 requests from non-VA medical experts under 38 U.S.C. 
7109. Report of the Chairman, Board of Veterans' Appeals, Fiscal Year 
1999 at 23.
    Advisory opinions requested from VHA physicians have typically been 
provided in a much more timely manner than those obtained from non-VA 
physicians and generally have been well-reasoned, succinctly stated, 
and fully responsive to the questions asked by the Board. Additionally, 
the thoroughness and specificity of many VHA advisory opinions have 
provided sufficient information to allow the Board Members to issue 
final decisions without the need to remand cases to the regional 
offices to obtain the same information. As a result, this process 
reduces the time a veteran must wait for a final resolution of the 
appeal.
    Since 1995, this process has been memorialized in a VHA 
``Directive,'' which allocates the responsibilities between VHA and the 
Board. VHA Directive 10-95-040 (Apr. 17, 1995); VHA Directive 2000-049 
(Dec. 13, 2000). The latter directive, which replaces the former, may 
be found on VA's internet site at http://www.va.gov/publ/direc/health/direct/12000049.pdf.
    This interim final rule concerns rules of agency procedure and 
practice. Accordingly, under the provisions of 5 U.S.C. 553, we are 
dispensing with prior notice and comment and a delayed effective date.

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 interim 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 rule will affect VA beneficiaries and will not 
affect small businesses. Therefore, pursuant to 5 U.S.C. 605(b), this 
interim final rule is exempt from the initial and final regulatory 
flexibility analyses requirement of sections 603 and 604.

List of Subjects in 38 CFR Part 20

    Administrative practice and procedure, Claims, Veterans.

    Approved: July 9, 2001.
Anthony J. Principi,
Secretary of Veterans Affairs.
    For the reasons set out in the preamble, 38 CFR part 20 is amended 
as set forth below:

PART 20--BOARD OF VETERANS' APPEALS: RULES OF PRACTICE

    1. The authority citation for part 20 continues to read as follows:

    Authority: 38 U.S.C. 501(a) and as noted in specific sections.


    2. Section 20.901(a) is revised to read as follows:


Sec. 20.901  Rule 901. Medical opinions and opinions of the General 
Counsel.

    (a) Opinion from the Veterans Health Administration. The Board may 
obtain a medical opinion from an appropriate health care professional 
in the Veterans Health Administration of the Department of Veterans 
Affairs on medical questions involved in the consideration of an appeal 
when, in its judgment, such medical expertise is needed for equitable 
disposition of an appeal.

(Authority: 38 U.S.C. 5107(a))

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[FR Doc. 01-18172 Filed 7-20-01; 8:45 am]
BILLING CODE 8320-01-P