[Federal Register Volume 67, Number 31 (Thursday, February 14, 2002)]
[Rules and Regulations]
[Pages 6872-6874]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-3677]



[[Page 6872]]

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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 3 and Part 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: Final rule.

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SUMMARY: This document amends the Department of Veterans Affairs 
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: Effective Date: This amendment is effective March 18, 2002.

FOR FURTHER INFORMATION CONTACT: Caroll McBrine, M.D., Consultant, 
Policy and Regulations Staff (211A), Compensation and Pension Service, 
Veterans Benefits Administration, Department of Veterans Affairs, 810 
Vermont Avenue NW, Washington, DC 20420, (202) 273-7230.

SUPPLEMENTARY INFORMATION: In the Federal Register of July 20, 2001 (66 
FR 37940-37941), we published a proposal to implement section 302 of 
the Veterans Benefits and Health Care Improvement Act of 2000, Public 
Law 106-419, 114 Stat. 1822, 1853 which amended 38 U.S.C. 1114(k) by 
providing entitlement to special monthly compensation (SMC) if a woman 
veteran suffers the anatomical loss of one or both breasts (including 
loss by mastectomy) as a result of service-connected disability. We 
proposed to amend 38 CFR 3.350(a), which is titled ``Special monthly 
compensation ratings,'' by adding new paragraph (7) to define 
``anatomical loss of a breast'' for purposes of this benefit as 
requiring ``complete surgical removal of breast tissue (or the 
equivalent loss of breast tissue due to injury).'' This includes 
radical mastectomy, modified radical mastectomy, and simple (or total) 
mastectomy, but not wide local excision (including partial mastectomy, 
lumpectomy, tylectomy, segmentectomy, and quadrantectomy).
    We received 19 comments on the proposed regulation, one from the 
Vietnam Veterans of America, one from the Disabled American Veterans, 
and 17 from individuals. Fifteen commenters supported the proposal, 
many very strongly.
    Three commenters, while supporting the proposal, felt that men 
should also receive SMC for a mastectomy. Public Law 106-419, Section 
302, 114 Stat. at 1853, authorizes this benefit only ``in the case of a 
woman veteran,'' and we therefore have no legal authority to award SMC 
to male veterans based on anatomical loss of one or both breasts.
    One commenter inquired about whether this rulemaking would 
encourage women veterans to choose mastectomy over lumpectomy. We do 
not believe that payment of this additional benefit for complete 
surgical removal of breast tissue will influence a woman's decision 
about what procedure to undergo in order to rid her body of cancer. 
Rather, we believe that this decision, like other medical decisions, 
will be based on many factors and will be made in consultation with her 
physician. Moreover, VA has statutory authority to award SMC only for 
anatomical loss of one or both breasts and a lumpectomy clearly does 
not constitute such loss.
    The same commenter inquired about the rationale for paying SMC for 
a mastectomy. The commenter asked whether a mastectomy impinges on an 
individual's ability to do a job and whether SMC is intended to negate 
mental anguish. The commenter also asked whether there is disability, 
i.e., restricted ability to earn income, after an individual's recovery 
from a mastectomy is complete. Another commenter objected to payment of 
SMC based on anatomical loss of a breast because a mastectomy does not 
interfere with the ability to hold a job or earn a living.
    Generally, basic rates of wartime disability compensation are based 
on the average impairment in earning capacity resulting from a 
particular disability, as set forth in the Schedule for Rating 
Disabilities. 38 U.S.C. 1155. Congress, however, has authorized payment 
of SMC based on noneconomic factors resulting from a service-connected 
disability such as personal inconvenience, social inadaptability, or 
the profound nature of the disability. See S. Rep. No. 82-1681, at 2, 
130-31 (1952); H.R. Rep. No. 89-6, at 4 (1965). Congress has authorized 
SMC for anatomical loss of a breast, and VA is obligated to carry out 
38 U.S.C. 1114(k), as amended by Public Law 106-419.
    One commenter felt that anatomical loss of a breast is not a 
service-connected disability and that SMC should be paid only if the 
breast surgery took place on active duty. Another commenter inquired 
about whether a veteran must develop the condition that results in loss 
of a breast or breasts while on active duty. Another commenter opposed 
paying this benefit at all because there is no evidence that anything 
in service could have caused breast cancer.
    New 38 U.S.C. 1114(k) provides SMC if the loss of one or both 
breasts occurred ``as the result of a service-connected disability.'' 
``Service connected'' means that a disability was incurred or 
aggravated in line of duty in the active military, naval, or air 
service. 38 U.S.C. 101(16). ``Line of duty'' means that, at the time 
the injury or disease causing the disability occurred, the veteran was 
in active military, naval, or air service and that the injury or 
disease was not the result of the veteran's own willful misconduct or 
abuse of alcohol or drugs. 38 U.S.C. 105(a). Thus, a disability need 
not be the result of exposure to contaminants, chemicals, or drugs 
during service, as one of the commenters suggested, in order to be 
service connected. Further, if a woman veteran contracts breast cancer 
while on active duty, any disability resulting from the cancer would be 
service connected and SMC would be payable for a resulting mastectomy, 
irrespective of when the operation occurred. If a veteran is diagnosed 
with breast cancer after service, any resulting disability would be 
service connected, and SMC would be payable for a resulting mastectomy, 
if the evidence establishes that the cancer was incurred during service 
or during a post-service presumptive period. 38 CFR 3.303(a). The 
statute entitles women who have anatomical loss of one or both breasts 
to this benefit, and VA is obligated to pay the benefit as directed by 
Congress. Again, if the disability causing the mastectomy is service 
connected, a woman veteran would be entitled to SMC, irrespective of 
when her surgery occurred.
    One commenter asked whether SMC would be paid for prophylactic 
mastectomies. We will pay SMC for any mastectomy that is medically 
determined to be secondary to, or necessary to treat, a service-
connected condition.
    Two commenters objected to restricting this benefit to those who 
have had a complete mastectomy, rather than including those with less 
extensive breast surgery such as wide local excision that they maintain 
can result in ``significant'' anatomical loss. They feel that VA's 
definition of the statutory term ``anatomical loss'' in new section 
3.350(a)(7) as requiring loss of all breast tissue is contrary to 38 
U.S.C. 1114(k) and Congress' intent. 38 U.S.C. 1114(k), to which 
Congress added loss of one or both breasts as a basis for SMC, clearly

[[Page 6873]]

distinguishes between anatomical loss and loss of use of a body part. 
Section 1114(k) provides SMC if a veteran, as a result of a service-
connected disability, ``has suffered the anatomical loss or loss of use 
of one or more creative organs, or one foot, or one hand, or both 
buttocks,'' or, in the case of a woman veteran, ``the anatomical loss 
of one or both breasts.'' Anatomical loss for purposes of section 
1114(k) in each case means loss of the entire body part, although less 
than complete anatomical loss may qualify as ``loss of use''. For 
example, when VA pays SMC due to less than complete removal of a 
testicle, it is paid on the basis of loss of use, rather than 
anatomical loss, of the affected organ. (See 38 CFR 3.350(a)(1).) Given 
the plain language of section 302 of Public Law 106-419, providing SMC 
for ``anatomical loss of one or both breasts (including loss by 
mastectomy),'' we believe that the definition of this phrase in new 
section 3.350(a)(7), requiring complete removal of a breast in order to 
receive SMC, is in accord with 38 U.S.C. 1114(k).
    One of these commenters noted that, in the preamble to the proposed 
rule, VA chose complete peroneal nerve paralysis as an analogous 
situation to anatomical loss of one or both breasts and said that a 
much better analogy is loss of use of a testicle, where SMC is awarded 
based on a reduction in the size of the organ.
    SMC is payable under 38 U.S.C. 1114(k) for ``the anatomical loss or 
loss of use of one or more creative organs.'' Consistent with section 
1114(k), 38 CFR 3.350(a)(1)(i) states that loss of a creative organ 
(such as a testicle) means acquired absence of the organ. Section 
3.350(a)(1)(i)(a) and (b) also define loss of use of one testicle as 
the situation where either the diameters of the affected testicle are 
reduced to one-third of the corresponding diameters of the paired 
normal testicle, or the diameters of the affected testicle are reduced 
to one-half or less of the corresponding normal testicle and there is 
alteration of consistency so that the affected testicle is considerably 
harder or softer than the corresponding normal testicle. We believe 
that defining ``anatomical loss'' of a breast as ``complete surgical 
removal of breast tissue'' is consistent with defining loss of a 
creative organ to mean ``acquired absence'' of the organ. Since 
Congress provided no statutory authority to pay SMC for loss of use of 
one or both breasts, we make no change based on this comment.
    One of the commenters also said that VA requirements for finding 
``anatomical loss'' of other body parts present even more compelling 
evidence that it has not approached this rulemaking fairly and 
objectively because under 38 CFR 4.71a, diagnostic codes 5126 to 5131, 
VA considers the amputation of four or five fingers to constitute 
anatomical loss of a hand. The footnotes under these diagnostic codes 
state ``Entitled to [SMC]'' but do not indicate whether SMC is based on 
anatomical loss of a hand or loss of use of a hand. The language of 38 
CFR 3.350(a)(2)(i), dealing with SMC ratings for loss of use of a hand, 
however, makes it clear that the situations cited in diagnostic codes 
5126 to 5131 constitute loss of use of a hand for purposes of SMC. 
Section 3.350(a)(2)(i) states that ``[l]oss of use of a hand . . . will 
be held to exist when no effective function remains other than that 
which would be equally well served by an amputation stump at the site 
of election below elbow . . . with use of a suitable prosthetic 
appliance.'' We therefore make no change based on these comments.
    VA appreciates the comments submitted in response to the proposed 
rule, which is now adopted without change.

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 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.

Executive Order 12866

    This final rule has been reviewed by the Office of Management and 
Budget under Executive Order 12866.

    The Catalog of Federal Domestic Assistance program numbers are 
64.104 and 64.109.

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, Individuals with disabilities, Pensions, 
Veterans.

    Approved: January 9, 2002.
Anthony J. Principi,
Secretary of Veterans Affairs.

    For the reasons set out in the preamble, 38 CFR part 3 is 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. 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.

[[Page 6874]]

    4. Section 4.116, Note 2 is amended by removing ``one or more 
creative organs,'' and adding, in its 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.

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                                                                  Rating
 
                  *        *        *        *        *
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 excision 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
Note: For VA purposes:
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\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.
*        *        *        *        *

[FR Doc. 02-3677 Filed 2-13-02; 8:45 am]
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