[Federal Register Volume 69, Number 73 (Thursday, April 15, 2004)]
[Rules and Regulations]
[Pages 19935-19937]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-8564]



[[Page 19935]]

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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 20

RIN 2900-AK52


Board of Veterans' Appeals: Rules of Practice--Medical Opinions 
From the Veterans Health Administration

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document adopts as a final rule, with one exception, the 
interim final rule that amended the Department of Veterans Affairs (VA) 
Appeals Regulation clarifying that the Board of Veterans' Appeals 
(Board) may obtain medical opinions from appropriate health care 
professionals in VA's Veterans Health Administration. The exception is 
inclusion of citation to statutory authority that was omitted from the 
interim rule and updating the previously cited statutory authority to 
reflect recent legislation.

DATES: Effective Date: This final rule is effective as of July 23, 
2001.

FOR FURTHER INFORMATION CONTACT: Steven L. Keller, Senior Deputy Vice 
Chairman, Board of Veterans' Appeals (012), 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 denial of claims for 
veterans benefits.
    On July 23, 2001, VA published an interim final rule with request 
for comments to clarify that under 38 CFR 20.901(a), the Board may 
obtain medical opinions from appropriate health care professionals 
within the Department's Veterans Health Administration (VHA) rather 
than solely from the Under Secretary for Health (formerly known as the 
Chief Medical Director) (66 FR 38158).
    After publication of the interim final rule, it was brought to our 
attention that citation to the primary authority for this regulation, 
38 U.S.C. 7109, was omitted from the regulatory text, and that the 
statute we had cited, 38 U.S.C. 5107(a), had been amended by the 
Veterans Claims Assistance Act of 2000 (VCAA), Public Law 106-475, 114 
Stat. 2096. Therefore, the only change we have made is to change the 
authority citation to include section 7109 and to refer to the statute 
as amended by the VCAA. The substance and effect of the final 
regulation does not change.
    We received comments from a veterans' service organization and an 
association of veterans' advocates. Both groups opposed the interim 
final rule and urged VA to rescind the rule. The reasons for their 
opposition fell into five categories: (1) Alleged lack of statutory 
authority and conflict with 38 U.S.C. 7109; (2) alleged conflict with 
the VCAA; (3) alleged conflict with 38 CFR 4.2, Interpretation of 
examination reports; (4) alleged violation of due process; and (5) 
alleged defects that would result in the rule being implemented in an 
arbitrary and unfair fashion. We do not agree with these objections and 
will address them in turn.

1. Alleged Lack of Statutory Authority and Conflicts With 38 U.S.C. 
7109

    38 U.S.C. 7109 provides that when, in the judgment of the Board, an 
expert medical opinion (in addition to that available within the 
Department), is warranted by the medical complexity or controversy 
involved in an appealed case, the Board may secure an advisory medical 
opinion from one or more independent medical experts who are not 
employees of the Department.
    We received comments asserting that VA lacks statutory authority 
for the rule and that section 7109 does not authorize the Board to 
obtain medical opinions from VHA. The commenters believe that the 
phrase ``in addition to that available within the Department'' means 
evidence already obtained by the agency of original jurisdiction (AOJ) 
and does not mean that the Board may request opinions from VHA. In the 
same vein, a commenter asserts that section 7109 ``expressly prohibits 
the obtaining of medical opinions from VA employees.''
    We disagree. There is no legal basis to support the conclusion that 
the phrase ``in addition to that available within the Department,'' 
limits the Board to obtaining medical opinions only from experts 
outside of VA. Rather, 38 U.S.C. 7109 acknowledges the Board's 
authority to request opinions from within the Department, when such 
opinions are deemed necessary. Indeed, the legislative history of 
current section 7109 clearly reflects such Congressional intent. In 
reporting the bill that eventually became section 7109 (it was 
redesignated from section 4009 in May 1991), the Senate Committee on 
Finance explained that the bill made no reference to the Board's 
authority to obtain an advisory opinion from the VA Chief Medical 
Director because ``this is a matter within Agency discretion and ample 
authority for this practice now exists.'' S. Rep. No. 87-1844 (1962), 
reprinted at 1962 U.S.C.C.A.N. 2585, 2586.
    In addition, Congressional approval of the practice of obtaining 
medical opinions through VHA is quite apparent in the legislative 
history accompanying the enactment of the Veterans Judicial Review Act, 
Pub. L. 100-687, Div. A, Sec.  101, 102 Stat. 4105 (1988) (VJRA). In 
discussing changes made to section 7109, ``[t]he Committees also note 
with approval the current practice of obtaining [ medical expert] 
opinions through the Department of Medicine and Surgery [VHA's former 
name].'' See 134 Cong. Rec. S16653 (1988), reprinted in 1988 
U.S.C.C.A.N. 5834, 5842.
    The Secretary believes that there is ample evidence of the Board's 
authority to obtain medical opinions from both inside and outside VA. 
Therefore, we make no changes based upon the foregoing comments.

2. Alleged Conflict With the VCAA

    The VCAA requires the Secretary of Veterans Affairs to provide 
certain types of assistance in connection with a claim for benefits. 
One commenter argues that the amendment to 38 CFR 20.901(a) is ultra 
vires and conflicts with the VCAA in that it ``creates de facto a super 
Regional Office'' by allowing the Board to perform the RO's duty as 
codified by the VCAA. Both commenters assert that the amendment to 38 
CFR 20.901(a) alters BVA's jurisdiction by allowing the Board to 
develop the record. They contend that this is an alteration that 
violates VA's obligations to assist the claimant and deprives claimants 
of one review on appeal. In this regard they assert that the VCAA 
requires ``the Agency not the Board [to] fully and sympathetically 
develop the claim'' and that while Congress gave the Board clear 
authority and responsibility in appellate matters ``it gave the Board 
no authority to develop the record in routine matters.'' The VCAA 
changed nothing about 38 U.S.C. 7109(a), which expressly permits the 
Board to obtain medical opinions from outside VA and acknowledges its 
authority to obtain opinions from VHA. Section 7109(a) provides as 
follows:

    When, in the judgment of the Board, expert medical opinion, in 
addition to that available within the Department, is warranted by 
the medical complexity or controversy involved in an appeal case, 
the Board may secure an advisory medical opinion from one or more 
independent medical experts who are not employees of the Department.

    The phase ``in addition to that available within the Department'' 
makes plain that the Board has discretion to use the source that it 
deems most appropriate. The Federal Circuit endorsed this analysis in 
Disabled American Veterans v. Principi, 327 F.3d

[[Page 19936]]

1339 (Fed. Cir. 2003), where it stated as follows:

    [W]hen Congress intended to authorize the Board to obtain 
additional evidence without `one review on appeal to the Secretary,' 
it knew how to do so. Congress has provided express statutory 
authority to permit the Board to obtain additional evidence, such as 
expert medical opinions in specific cases. See, e.g., 38 U.S.C. 
5107(a) (2000) (authorizing Board to obtain medical opinions from 
the VA's Under Secretary for Health (formerly the Chief Medical 
Director)); 38 U.S.C. 7109 (2000) (authorizing Board to obtain 
independent medical opinions from outside the VA); 38 CFR 20.901(a) 
(2002) (authorizing Board to obtain opinions from the Veterans 
Health Administration) * * *.

Disabled American Veterans v. Principi, 327 F.3d at 1347-48.
    In addressing the impact and effect of the Federal Circuit's 
decision in Disabled American Veterans, the VA Office of the General 
Counsel issued a precedential opinion wherein it found that the Board 
is not prohibited from obtaining and considering evidence so long as a 
waiver is obtained. Otherwise, the matter has to be returned to the 
agency of original jurisdiction for initial consideration of the new 
evidence. VAOPGCPREC 1-2003 (May 21, 2003).
    Moreover, in an earlier precedential opinion, the VA General 
Counsel determined that medical opinions from VHA belonged to a special 
class of evidence that the Board is allowed to consider without 
reference to the agency of original jurisdiction, provided that the 
claimant is given an opportunity to review and respond to such evidence 
before a decision is rendered. VAOPGCPREC 16-92 (July 24, 1992 ); see 
also 38 CFR 20.903(a) (1992).
    The above-mentioned VA General Counsel opinions, along with the 
Federal Circuit's discussion of the Board's authority under 38 U.S.C. 
7109 in Disabled American Veterans v. Principi, support the view that 
the Board has the authority to obtain medical opinions from medical 
professionals employed either inside or outside the Department.
    Another comment asserts that 38 U.S.C. 5103A, which was created by 
the VCAA, delineates VA's general duty to assist and, in so doing, does 
not give the Board the authority to develop the record by obtaining a 
medical opinion. The commenter contends that 38 CFR 20.901(a) allows 
the Board to circumvent the duty-to-assist provisions that are set 
forth under section 5103A. We have reviewed the VCAA, to include 
section 5103A, and find there is nothing in the VCAA that would prevent 
the Board from obtaining medical opinions under 38 CFR 20.901(a).
    This view is bolstered by the U.S. Court of Appeals for Veterans 
Claims (Veterans Court) in both 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), and Perry v. Brown, 9 Vet. App. 
2, 6 (1996). In Perry, further evidentiary development was needed, and 
the court, citing 38 U.S.C. 5107(a) (before its amendment by the VCAA) 
and 7109, stated that ``[t]he Board may seek to obtain that development 
itself through a VA [VHA] or non-VA [independent medical expert] 
opinion, or through a remand to the [regional office] for it to obtain 
an [independent medical expert] opinion, or to provide for a VA 
examination of the veteran.'' 9 Vet. App. at 6 (citations omitted). In 
Winsett, the Veterans Court expressly held that section 7109 does not 
preclude the Board from obtaining a medical opinion ``not rendered by 
an independent source,'' 11 Vet. App. at 426, and noted both that 
``whether the Board chooses to refer a particular case for an 
independent medical opinion is entirely within its discretion'' and 
that ``[i]t is uncontested that the Board has the authority * * * to 
obtain an expert medical opinion irrespective of section 7109,'' id.
    Thus, in light of the case law and the opinions from OGC, we reject 
the comment that 38 CFR part 1 901(a) conflicts with VA statutes 
governing development of claims, to include the VCAA, and we make no 
changes based upon this assertion.

3. Alleged Conflict With 38 CFR 4.2, Interpretation of Examination 
Reports

    38 CFR 4.2 states, in pertinent part, that an examination report 
that does not contain sufficient detail to allow the rating board to 
evaluate a disability should be returned as inadequate. One commenter 
argues that Sec.  20.901(a) subverts this process by allowing the Board 
to request an expert medical opinion rather than remanding the matter 
for additional development. The commenter asserts that, if a medical 
question is complex or controversial, the Board should remand the 
matter to the AOJ to obtain medical opinions.
    A request for an opinion under Sec.  20.901(a) does not circumvent 
the need to remand an appeal if an examination is inadequate. The 
decision to obtain an expert medical opinion under Sec.  20.901(a) is 
made only after the Board has determined that the report of any 
examination is adequate. The request for a medical opinion is not a 
substitute for an adequate examination. It is, rather, a tool the Board 
is authorized to use to gain a better understanding of a particularly 
complex or controversial medical issue, thereby enabling it to render 
an informed decision.

4. Alleged Violation of Due Process

    The commenters argue that the rule violates due process rights 
because a claimant will not have notice of an opinion obtained under 
Sec.  20.901(a) and an opportunity to respond. These comments are 
unfounded. Section 20.903(a) of title 38, Code of Federal Regulations, 
requires the Board, if it requests a medical opinion under Sec.  
20.901, to notify the appellant, to furnish a copy of any opinion 
obtained, and to allow 60 days for response, which may include 
submission of additional evidence or argument. In view of these due 
process guarantees, we make no change based on that comment.

5. Alleged Defects That Would Result in the Rule Being Implemented in 
an Arbitrary and Unfair Fashion

    Pursuant to the amended Sec.  20.901(a), the Board may obtain 
medical opinions from appropriate health care professionals within the 
VHA rather than solely from the Under Secretary for Health. One 
commenter argues that this improperly broadens the scope of the Board's 
authority to request VHA opinions. The change is said to be arbitrary 
and unfair to claimants because Board members are not in the position 
to know either what expertise exists in VHA or who the best expert is 
for a particular question. The commenter maintains that the selection 
of a physician qualified to render a medical opinion is a process that 
should be overseen by VHA management.
    As we explained in the interim final rule, VHA Directive 2000-049 
(December 13, 2000) allocates the responsibilities in this process 
between VHA and the Board. 66 FR at 38159. This directive, which is 
publicly available (http://www.va.gov/publ/direc/health/direct/12000049.pdf), allows the Board to elect a VA facility to generate a 
medical opinion. However, the Board must choose from a list of medical 
centers created and provided by VHA. Further, the ultimate selection of 
the physician asked to render the opinion is left to the Office of the 
Chief of Staff of that facility. In other words, the selection of the 
physician is a process that is in fact overseen by VHA management. 
Accordingly, we made no change based on this comment.

Administrative Procedure Act

    This document, with the exception of a change to the authority 
citation,

[[Page 19937]]

adopts as a final rule an interim final rule that is already in effect. 
Accordingly, we have concluded under 5 U.S.C. 553 that there is good 
cause for dispensing with a delayed effective date because such 
procedure is impracticable, unnecessary, and contrary to the public 
interest.

Unfunded Mandates

    The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, 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 final rule would have no 
such effect on State, local, or tribal governments, or the private 
sector.

Executive Order 12866

    The Office of management and Budget has reviewed this document 
under Executive Order 12866.

Regulatory Flexibility Act

    The Secretary hereby certifies that this 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. Only VA beneficiaries could be directly affected. Therefore, 
pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial 
and final regulatory flexibility analysis requirements of sections 603 
and 604.

Paperwork Reduction Act

    The Secretary hereby certifies that this final rule contains no 
provisions constituting a collection of information under the Paperwork 
Reduction Act (44 U.S.C. 3501-3521).

List of Subjects in 38 CFR Part 20

    Administrative practice and procedure, Claims, Veterans.

    Approved: February 2, 2004.
Anthony J. Principi,
Secretary of Veterans Affairs.

0
For the reasons set out in the preamble, the interim final rule 
amending 38 CFR part 20 which was published at 66 FR 38158 on July 23, 
2001 is adopted as a final rule with the the following change:

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

0
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.


0
2. In Sec.  20.901, the authority citation at the end of paragraph (a) 
is revised to read as follows:


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

* * * * *
(Authority: 38 U.S.C. 5103A(d), 7109)

[FR Doc. 04-8564 Filed 4-14-04; 8:45 am]
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