[Federal Register Volume 72, Number 57 (Monday, March 26, 2007)]
[Rules and Regulations]
[Pages 14041-14043]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-5432]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 21

RIN 2900-AM25


Vocational Rehabilitation and Employment Program--Initial 
Evaluations

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) adopts as a final rule 
in this document a proposed rule concerning initial evaluations of 
individuals who apply for vocational rehabilitation and employment 
benefits. This final rule is intended to reflect changes in law 
regarding initial evaluations, to reflect VA's interpretation of 
applicable law and its determinations of procedures appropriate for use 
in the initial evaluation, and to improve readability.

DATES: Effective Date: This final rule is effective April 25, 2007.

FOR FURTHER INFORMATION CONTACT: Mark Hawkins, Vocational 
Rehabilitation Counselor, (202) 273-6923, Vocational Rehabilitation and 
Employment Service (28), Veterans Benefits Administration, Department 
of Veterans Affairs, 810 Vermont Ave., NW., Washington, DC 20420.

SUPPLEMENTARY INFORMATION: In a document published in the Federal 
Register on August 28, 2006 (71 FR 50872), VA proposed to amend the 
regulations in 38 CFR Part 21, Subpart A--Vocational Rehabilitation 
Under 38 U.S.C. Chapter 31, concerning initial evaluations of 
individuals who apply for vocational rehabilitation and employment 
benefits. In this document, VA is amending those Vocational 
Rehabilitation regulations to reflect changes in law regarding initial 
evaluations and VA's interpretation of applicable law and its 
determination of procedures appropriate for use in the initial 
evaluation. We are also making changes in those regulations to improve 
readability. In addition, we are making a nonsubstantive conforming 
change in 38 CFR Part 21, Subpart M--Vocational Training and 
Rehabilitation for Certain Children of Vietnam Veterans--Spina Bifida 
and Covered Birth Defects.
    We provided a 60-day comment period that ended October 27, 2006. No 
comments were received. Based on the rationale set forth in the 
proposed rule and this document, we now adopt the provisions of the 
proposed rule as a final rule without change.

Paperwork Reduction Act of 1995

    This rule contains no new collections of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). The Office of 
Management and Budget (OMB) has approved collection of information 
provisions that are related to the provisions of 38 CFR 21.50 under OMB 
control number 2900-0009 (entitled ``Disabled Veterans Application for 
Vocational Rehabilitation and 38 CFR 21.30'') and has approved 
collection of information provisions that are related to the

[[Page 14042]]

provisions of Sec. Sec.  21.50 through 21.52 under OMB control number 
2900-0092 (entitled ``Counseling Record--Personal Information'').

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in an expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any given year. This rule will have no such effect on 
State, local, and tribal governments, or on the private sector.

Executive Order 12866

    Executive Order 12866 directs agencies to assess all costs and 
benefits of available regulatory alternatives and, when regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety, 
and other advantages; distributive impacts; and equity). The Executive 
Order classifies a ``significant regulatory action,'' requiring review 
by OMB unless OMB waives such review, as any regulatory action that is 
likely to result in a rule that may: (1) Have an annual effect on the 
economy of $100 million or more or adversely affect in a material way 
the economy, a sector of the economy, productivity, competition, jobs, 
the environment, public health or safety, or State, local, or tribal 
governments or communities; (2) create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
(3) materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; or (4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    The economic, interagency, budgetary, legal, and policy 
implications of this final rule have been examined and it has been 
determined to not be a significant regulatory action under Executive 
Order 12866.

Regulatory Flexibility Act

    The Secretary of Veterans Affairs hereby certifies that this 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 not directly affect any small entities. 
Only individuals could be directly affected. Therefore, pursuant to 5 
U.S.C. 605(b), this rule is exempt from the initial and final 
regulatory flexibility analysis requirements of sections 603 and 604.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
programs affected by this rule are 64.116, Vocational Rehabilitation 
for Disabled Veterans; and 64.128, Vocational Training and 
Rehabilitation for Vietnam Veterans' Children with Spina Bifida or 
Other Covered Birth Defects.

List of Subjects in 38 CFR Part 21

    Administrative practice and procedure, Armed forces, Civil rights, 
Claims, Colleges and universities, Conflict of interests, Education, 
Employment, Grant programs--education, Grant programs--veterans, Health 
care, Loan programs--education, Loan programs--veterans, Manpower 
training programs, Reporting and recordkeeping requirements, Schools, 
Travel and transportation expenses, Veterans, Vocational education, 
Vocational rehabilitation.

    Approved: March 20, 2007.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.

0
For the reasons set forth in the preamble, VA amends 38 CFR part 21 
(subparts A and M) as follows:

PART 21--VOCATIONAL REHABILITATION AND EDUCATION

Subpart A--Vocational Rehabilitation Under 38 U.S.C. Chapter 31

0
1. Revise the authority citation for part 21, subpart A to read as 
follows:

    Authority: 38 U.S.C. 501(a), ch. 31, and as noted in specific 
sections.

0
2. Revise Sec.  21.50 to read as follows:


Sec.  21.50  Initial evaluation.

    (a) Entitlement to an initial evaluation. VA will provide an 
initial evaluation to an individual who:
    (1) Applies for benefits under 38 U.S.C. chapter 31; and
    (2) Meets the service-connected disability requirements of Sec.  
21.40.

(Authority: 38 U.S.C. 3101(9), 3106)


    (b) Determinations to be made by VA during the initial evaluation. 
A counseling psychologist (CP) or vocational rehabilitation counselor 
(VRC) will determine:
    (1) Whether the individual has an employment handicap as determined 
in accordance with this section and Sec.  21.51;
    (2) Whether an individual with an employment handicap has a serious 
employment handicap as determined in accordance with this section and 
Sec.  21.52; and
    (3) Whether the achievement of a vocational goal is currently 
reasonably feasible as described in Sec.  21.53.

(Authority: 38 U.S.C. 3102, 3103)


    (c) Factors for assessment as part of the initial evaluation. In 
making the determinations under paragraph (b) of this section, the 
following factors will be developed and assessed:
    (1) The handicapping effects of the individual's service-connected 
and nonservice-connected disability(ies) on employability and on 
independence in daily living;
    (2) The individual's physical and mental capabilities that may 
affect employability and ability to function independently in daily 
living activities in family and community;
    (3) The impact of the individual's identified vocational 
impairments on the individual's ability to prepare for, obtain, and 
keep suitable employment;
    (4) The individual's abilities, aptitudes, and interests;
    (5) The individual's personal history and current circumstances 
(including educational and training achievements, employment record, 
developmental and related vocationally significant factors, and family 
and community adjustment); and
    (6) Other factors that may affect the individual's employability.

(Authority: 38 U.S.C. 3106(a))


    (d) Need for cooperation in evaluation. The individual's 
cooperation is essential during the initial evaluation. If the 
individual does not cooperate, the CP or VRC will make reasonable 
efforts to secure the individual's cooperation. If, despite those 
efforts, the individual fails to cooperate, VA will discontinue the 
initial evaluation. A redetermination of entitlement as described in 
Sec.  21.58 will be made in the case of an individual whose program has 
been discontinued due to failure to cooperate.

(Authority: 38 U.S.C. 3111)


0
3. Revise Sec.  21.51 to read as follows:


Sec.  21.51  Determining employment handicap.

    For the purposes of Sec.  21.50, an employment handicap will be 
found to exist only if a CP or VRC determines that the individual meets 
each of the following conditions:
    (a) Vocational impairment. The individual has a vocational 
impairment; that is, an impairment of the ability to prepare for, 
obtain, or keep employment in an occupation consistent with his or her 
abilities, aptitudes, and interests.

[[Page 14043]]

    (b) Effects of impairment not overcome. The individual has not 
overcome the effects of the individual's impairment of employability 
through employment in, or qualifying for employment in, an occupation 
consistent with his or her abilities, aptitudes, and interests. This 
situation includes an individual who qualifies for a suitable job, but 
who does not obtain or keep the job for reasons beyond his or her 
control.

(Authority: 38 U.S.C. 3102)


    (c) Contribution of the service-connected disability(ies) to the 
individual's overall vocational impairment. (1) Except as provided in 
paragraph (c)(3) of this section, the service-connected disability(ies) 
must contribute in substantial part to the individual's overall 
vocational impairment. This means that the disability(ies) must have an 
identifiable, measurable, or observable causative effect on the overall 
vocational impairment, but need not be the sole or primary cause of the 
employment handicap.
    (2) When determining the individual's overall vocational 
impairment, the CP or VRC will consider the factors identified in Sec.  
21.50(c).
    (3) For determinations made on applications for vocational 
rehabilitation filed on or after March 30, 1995, but before October 9, 
1996, the individual's service-connected disability(ies) need not 
contribute to the individual's overall vocational impairment.

(Authority: 38 U.S.C. 3101, 3102)


0
4. Revise Sec.  21.52 to read as follows:


Sec.  21.52  Determining serious employment handicap.

    (a) Requirements for determining serious employment handicap. For 
each individual who is found to have an employment handicap, a CP or 
VRC must make a separate determination of whether the individual has a 
serious employment handicap. For the purposes of an initial evaluation 
under Sec.  21.50, a serious employment handicap will be found to exist 
only if a CP or VRC determines that the individual meets each of the 
following conditions:
    (1) Significant vocational impairment. The individual has a 
significant vocational impairment; that is, a significant impairment of 
the ability to prepare for, obtain, or keep employment in an occupation 
consistent with his or her abilities, aptitudes, and interests, 
considering the factors described in Sec.  21.50 and paragraph (b) of 
this section.
    (2) Effects of significant impairment not overcome. The individual 
has not overcome the effects of the significant vocational impairment 
through employment in, or qualifying for employment in, an occupation 
consistent with his or her abilities, aptitudes, and interests. This 
includes an individual who qualifies for a suitable job, but who does 
not obtain or keep the job for reasons beyond his or her control.

(Authority: 38 U.S.C. 3102)


    (3) Contribution of the service-connected disability(ies) to the 
individual's overall significant vocational impairment. (i) Except as 
provided in paragraph (a)(3)(ii) of this section, the service-connected 
disability(ies) must contribute in substantial part to the individual's 
overall significant vocational impairment. This means that the 
disability(ies) must have an identifiable, measurable, or observable 
causative effect on the overall significant vocational impairment, but 
need not be the sole or primary cause of the serious employment 
handicap.

 (Authority: 38 U.S.C. 3101)


    (ii) For determinations made on applications for vocational 
rehabilitation filed on or after March 30, 1995, but before October 9, 
1996, the individual's service-connected disability(ies) need not 
contribute to the individual's overall significant vocational 
impairment.
    (b) Factors for assessment during the initial evaluation, when 
determining whether a significant vocational impairment exists. The 
combination of all restrictions and their effects on the individual 
define the extent of the vocational impairment and its significance. 
When determining whether the individual has a significant vocational 
impairment, VA will develop and assess the following factors and their 
effects:
    (1) Number of disabling conditions;
    (2) Severity of disabling condition(s);
    (3) Existence of neuropsychiatric condition(s);
    (4) Adequacy of education or training for suitable employment;
    (5) Number, length, and frequency of periods of unemployment or 
underemployment;
    (6) A pattern of reliance on government support programs, such as 
welfare, service-connected disability compensation, nonservice-
connected disability pension, worker's compensation, or Social Security 
disability;
    (7) Extent and complexity of services and assistance the individual 
needs to achieve rehabilitation;
    (8) Negative attitudes toward individuals with disabilities and 
other evidence of restrictions on suitable employment, such as labor 
market conditions; discrimination based on age, race, gender, 
disability or other factors; alcoholism or other substance abuse; and
    (9) Other factors that relate to preparing for, obtaining, or 
keeping employment consistent with the individual's abilities, 
aptitudes, and interests.

(Authority: 38 U.S.C. 3102, 3106)

Subpart M--Vocational Training and Rehabilitation for Certain 
Children of Vietnam Veterans--Spina Bifida and Covered Birth 
Defects

0
5. Revise the authority citation for part 21, subpart M to read as 
follows:

    Authority: 38 U.S.C. 101, 501, 512, 1151 note, ch. 18, 5112, and 
as noted in specific sections.


Sec.  21.8032  [Amended].

0
6. In Sec.  21.8032, amend paragraph (a) by removing ``Sec. Sec.  
21.50(b)(5)'' and adding, in its place, ``Sec. Sec.  21.50(b)(3)''.

[FR Doc. E7-5432 Filed 3-23-07; 8:45 am]
BILLING CODE 8320-01-P