[Federal Register Volume 66, Number 239 (Wednesday, December 12, 2001)]
[Proposed Rules]
[Pages 64174-64175]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-30612]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AK31


Independent Medical Opinions

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: This document proposes to amend the adjudication regulation 
dealing with independent medical opinions that may be requested to 
resolve complex or controversial medical issues that may arise in a 
claim for veterans' benefits. This amendment is a plain language 
restatement of the existing regulation on this subject, and no 
substantive changes are being made. The intended effect of this 
amendment is to clarify the process by which independent medical 
opinions are obtained.

DATES: Comments must be received on or before February 11, 2002.

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-AK31.'' 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: Jack Bisset, Consultant, Compensation 
and Pension Service, Regulations Staff, or Bob White, Team Leader, 
Plain Language Regulations Project, Veterans Benefits Administration, 
810 Vermont Avenue, NW., Washington, DC 20420, telephone (202) 273-7213 
and (202) 273-7228, respectively. These are not toll-free numbers.

SUPPLEMENTARY INFORMATION: This document proposes to restate in plain 
language the provisions of the current regulation on independent 
medical opinions, 38 CFR 3.328 and place them in a new section 
designated as Sec. 3.2410. Current Sec. 3.328 would be removed, and 
Sec. 3.2410 would be placed in subpart D, Universal Adjudication Rules 
that Apply to Benefit Claims Governed by part 3 of this title. This is 
a plain language restatement of the provisions in current Sec. 3.328 
and is not intended to change VA policy or regulations in any 
substantive way.
    Proposed Sec. 3.2410 is divided into seven short paragraphs. Each 
paragraph provides an answer to a brief introductory question. 
Paragraph (a) answers the question, ``What is an independent medical 
opinion?'' Paragraph (a) states that an independent medical opinion 
(IMO) is an advisory opinion from a medical expert who is not a VA 
employee. Paragraph (a) also makes clear that VA makes arrangements for 
these opinions with various medical institutions but does not select 
the individual experts who provide the opinions. That selection is made 
by officials of the institution. This paragraph is a restatement of 
paragraph (a) of current Sec. 3.328 except for the first clause of the 
first sentence.
    Paragraph (b) of proposed Sec. 3.2410 answers the question, ``When 
will an IMO be requested?'' It provides that VA will request an IMO 
when there is a medical issue in a pending claim which is extremely 
rare, complex or controversial and cannot be resolved on the evidence 
of record. This is a restatement of the first clause of paragraph (a) 
and the first sentence of paragraph (c) of current Sec. 3.328.
    Paragraph (c) of proposed Sec. 3.2410 addresses the issue of who 
can request an IMO. It states that IMOs can be requested by claimants 
or their representatives, or by Service Center Managers on their own 
initiative. This is a restatement of the first sentence of paragraph 
(b) of current Sec. 3.328.
    The question in paragraph (d) of proposed Sec. 3.2410 is, ``How do 
I request an IMO?'' Paragraph (d) provides that a request for an IMO 
must be submitted to a Service Center Manager for initial review, and 
the request must include detailed reasons why the IMO is necessary. 
This is a restatement of portions of the second and third sentences in 
paragraph (b) of current Sec. 3.328.
    Paragraph (b) of Sec. 3.328 currently requires that a request for 
an IMO be in writing. VA believes that this requirement is too 
restrictive and can result in claims processing delays. We have, 
therefore, added to paragraph (d) of proposed Sec. 3.2410 that the 
requirement for a ``writing'' includes e-mail, facsimile, or other 
written electronic means. VA does not want to prevent the use of 
methods of submission which could improve processing timeliness.
    The question in paragraph (e) of proposed Sec. 3.2410 is, ``Who 
approves the request for an IMO?'' Paragraph (e) provides that if the 
Service Center Manager agrees, on initial review, that an IMO would be 
appropriate, the request is then forwarded to the Director of the 
Compensation and Pension Service for approval. If the request is 
approved, the Director will make arrangements to obtain the IMO. This 
is a restatement of the last sentence in paragraph (b) and the first 
two sentences of paragraph (c) of current Sec. 3.328.
    Paragraph (f) of proposed Sec. 3.2410 answers the question, ``How 
will I know if the request is approved?'' Paragraph (f) states that the 
Director of the Compensation and Pension Service will notify the 
claimant that the IMO request has been approved and will provide the 
claimant with a copy of the opinion when it is received. Paragraph (f) 
also provides that the special disclosure procedures in 38 CFR 1.577(d) 
must be followed if the Director believes that disclosure of the IMO 
would be harmful to the claimant's physical or mental health. Paragraph 
(f) is a restatement of

[[Page 64175]]

the provisions in paragraph (d) of current Sec. 3.328.
    Paragraph (g) of proposed Sec. 3.2410 answers the last question, 
``Can I appeal a VA decision denying my request for an IMO?'' Paragraph 
(g) provides that, if VA decides that an IMO is not appropriate in a 
particular case, the claimant cannot directly appeal that decision. The 
claimant can only contest that decision as part of an appeal on a 
denial of benefits in the case. This is a restatement of the last 
sentence in paragraph (c) of current Sec. 3.328.
    This rulemaking reflects VA's goal of making government more 
responsive, accessible, and comprehensible to the public. The Plain 
Language Regulations Project was developed as a long-term comprehensive 
project to reorganize and rewrite in plain language the adjudication 
regulations in part 3 of title 38, Code of Federal Regulations. This 
proposed rule is one of a series of proposed revisions to those 
regulations.

Unfunded Mandates

    The Unfunded Mandates Reform Act, Public Law 104-4, March 22, 1995, 
requires (in section 202) that agencies prepare an assessment of 
anticipated costs and benefits before developing any rule that may 
result in an expenditure by State, local, or tribal governments, in the 
aggregate, or by the private sector of $100 million or more in any 
given year. This proposed rule will have no consequential effect on 
State, local, or tribal governments.

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 certifies that the adoption of this proposed rule 
would 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 proposed rule does 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 
ad 604.

Catalog of Federal Domestic Assistance Program Numbers

    The Catalog of Federal Domestic Assistance program numbers are 
64.104, 64.105, 64.109, 64.110, and 64.127.

List of Subjects in 38 CFR Part 3

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

    Approved: December 3, 2001.
Anthony J. Principi,
Secretary of Veterans Affairs.
    For the reasons set forth in the preamble, VA proposes to amend 38 
CFR part 3 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.


Sec. 3.328  [Removed].

    2. Section 3.328 is removed.

Subpart D--Universal Adjudication Rules that Apply to Benefit 
Claims Governed by part 3 of This Title.

    3. The authority citation for part 3, subpart D continues to read 
as follows:

    Authority: 38 U.S.C. 501(a) unless otherwise noted.
    4. New Sec. 3.2410 is added under a new undesignated center heading 
``Evidence Requirements'' to read as follows:

Evidence Requirements


Sec. 3.2410  Independent medical opinions.

    (a) What is an independent medical opinion?
    An independent medical opinion is an advisory opinion that VA 
obtains from one or more medical experts who are not VA employees to 
assist VA in deciding a claim for benefits. Although VA makes 
arrangements for these opinions with recognized medical schools, 
universities, clinics and medical institutions, the individual experts 
who provide the opinions are selected by appropriate officials of the 
institutions and not by VA.
    (b) When will an independent medical opinion be requested?
    VA will request an independent medical opinion when a pending claim 
involves a medical issue which is extremely rare, complex or 
controversial, and the evidence of record is insufficient to resolve 
the issue.
    (c) Who can request an independent medical opinion?
    An independent medical opinion can be requested by you, your 
representative, or a Service Center Manager on his or her own 
initiative.
    (d) How do I request an independent medical opinion?
    You or your representative must submit the request for an 
independent medical opinion to the Service Center Manager for initial 
review. The request must be submitted in writing, including e-mail, 
facsimile, or other written electronic means, and must include detailed 
reasons why you believe the independent medical opinion is necessary.
    (e) Who approves the request for an independent medical opinion?
     The request for an independent medical opinion is initially 
reviewed by the Service Center Manager. If the Service Center Manager 
agrees that an independent medical opinion is appropriate, the Service 
Center Manager will forward the request to the Director of the 
Compensation and Pension Service for approval. If approved, the 
Director will make arrangements for the independent medical opinion.
    (f) How will I know if the request is approved?
    When the request for an independent medical opinion is approved, 
the Director of the Compensation and Pension Service will notify you of 
the approval and will provide you with a copy of the opinion when it is 
received. However, if the Director believes that information contained 
in the independent medical opinion would be harmful to your physical or 
mental health, the special procedures in Sec. 1.577(d) must be 
followed.
    (g) Can I appeal a denial of my request?
     You cannot directly appeal a VA decision denying your request for 
an independent medical opinion. If VA decides that an independent 
medical opinion is not appropriate in your case, the reason will be 
explained in the notice VA sends you about the decision on your claim. 
You may contest the disapproval of your request for an independent 
medical opinion only as part of an appeal of the decision made by VA 
denying benefits in your case.

(Authority: 38 U.S.C. 5109, 5701(b)(1); 5 U.S.C. 552a(f)(3))

[FR Doc. 01-30612 Filed 12-11-01; 8:45 am]
BILLING CODE 8320-01-P