[Federal Register Volume 75, Number 184 (Thursday, September 23, 2010)]
[Rules and Regulations]
[Pages 57859-57862]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-23629]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AN21


Specially Adapted Housing and Special Home Adaptation

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) adopts as a final rule 
its proposal to amend its adjudication regulations regarding specially 
adapted housing and special home adaptation grants. This final rule 
incorporates certain provisions from the Veterans Benefits Act of 2003, 
the Veterans Benefits Improvement Act of 2004, the Veterans' Housing 
Opportunity and Benefits Improvement Act of 2006, and the Housing and 
Economic Recovery Act of 2008. These amendments are necessary to 
conform the regulations to the statutory provisions.

DATES: This final rule is effective October 25, 2010. Please refer to 
the SUPPLEMENTARY INFORMATION section for detailed information 
regarding the applicability dates of this final rule.

FOR FURTHER INFORMATION CONTACT: Thomas Kniffen, Chief, Regulations 
Staff (211D), Compensation and Pension Service, Veterans Benefits 
Administration, Department of Veterans Affairs, 810 Vermont Avenue, 
NW., Washington, DC 20420, (202) 461-9739. (This is not a toll-free 
telephone number.)

SUPPLEMENTARY INFORMATION: In a document published in the Federal 
Register on December 18, 2009, (74 FR 67145), VA proposed to amend its 
regulations pertaining to eligibility for specially adapted housing 
(SAH) grants and special home adaptation (SHA) grants. The public 
comment period ended on February 16, 2010, and VA received no comments. 
Therefore, VA is adopting the proposed rule as a final rule. However, 
we are making one change from the proposed rule. We are inserting 
``rated as permanent and total''

[[Page 57860]]

into the first sentence of 38 CFR 3.809(b) and 3.809a(b), so that the 
first sentence in each paragraph states: ``A member of the Armed Forces 
serving on active duty must have a disability rated as permanent and 
total that was incurred or aggravated in line of duty in active 
military, naval, or air service.'' Although we did not propose those 
provisions with the phrase ``rated as permanent and total,'' it is 
required by the statutory provisions on which they are based. Section 
2101A(a) of title 38, United States Code, requires that housing 
assistance provided to certain members of the Armed Forces serving on 
active duty be provided ``to the same extent as assistance is provided 
under [38 U.S.C. chapter 20] to veterans eligible under [chapter 20] 
and subject to the same requirements as veterans under [chapter 20].'' 
To be entitled to a SAH or SHA grant, a veteran must be entitled to 
compensation ``for a permanent and total service-connected 
disability.'' 38 U.S.C. 2101(a)(2) and (b)(2). Therefore, for a member 
of the Armed Forces to be entitled to a SAH or SHA grant, the member's 
disability that was incurred or aggravated in line of duty in active 
service (i.e., a service-connected disability) must be rated as 
permanent and total. Because the authorizing statutes require that SAH 
and SHA grants for Armed Forces members serving on active duty be 
conditioned on having a permanent and total service-connected 
disability, our implementing regulations must also impose that 
requirement.
    Applicability Dates: The following applicability dates are provided 
for those amended regulations which do not contain an applicability 
date in the regulatory text. These dates are based upon the effective 
dates of the applicable provisions of the following Public Laws: Public 
Law 108-183, with applicable provisions effective December 16, 2003; 
Public Law 108-454, with applicable provisions effective December 10, 
2004; Public Law 109-233, section 105 of which is effective December 
10, 2004; and Public Law 110-289, with applicable provisions effective 
July 30, 2008. In accordance with the statutory provisions of these 
Public Laws, the following applicability dates pertain to this final 
rule:
    (1) The revisions to Sec.  3.809(b) introductory text and Sec.  
3.809a(b) introductory text, pertaining to eligibility for SAH and SHA 
grants of persons disabled by VA treatment or vocational 
rehabilitation, apply to applications for SAH or SHA grants received by 
VA on or after December 10, 2004.
    (2) The addition of Sec.  3.809(b)(5), pertaining to loss or loss 
of use of both upper extremities as a disability qualifying for SAH 
grant eligibility, applies to all applications for SAH grants received 
by VA on or after December 10, 2004.
    (3) The addition of paragraph (b)(6) to Sec.  3.809 and the 
addition of paragraphs (b)(2)(ii) through (b)(2)(iv) to 3.809a, 
pertaining to severe burns as disabilities qualifying for SAH and SHA 
grant eligibility, apply to all applications for SAH or SHA grants 
received by VA on or after July 30, 2008.

Paperwork Reduction Act

    This document contains no provisions constituting a collection of 
information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

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. This final rule would not affect any small entities. 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.

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 the Office of Management and Budget, 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 be a significant regulatory action under the Executive 
Order because it is likely to result in a rule that may raise novel 
legal or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in the Executive Order.

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 the 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 one year. This final rule would have no such effect 
on State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance Numbers and Titles

    The Catalog of Federal Domestic Assistance program numbers and 
titles for the programs affected by this document are 64.106, Specially 
Adapted Housing for Disabled Veterans; and 64.109, Veterans 
Compensation for Service-Connected Disability.

Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this 
document and authorized the undersigned to sign and submit the document 
to the Office of the Federal Register for publication electronically as 
an official document of the Department of Veterans Affairs. John R. 
Gingrich, Chief of Staff, Department of Veterans Affairs, approved this 
document on September 9, 2010, for publication.

List of Subjects in 38 CFR Part 3

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

    Dated: September 17, 2010.
Robert C. McFetridge,
Director, Regulation Policy and Management, Office of General Counsel, 
Department of Veterans Affairs.

0
For the reasons set out in the preamble, VA amends 38 CFR part 3 as 
follows:

[[Page 57861]]

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity 
Compensation

0
1. The authority citation for part 3, subpart A continues to read as 
follows:


    Authority:  38 U.S.C. 501(a), unless otherwise noted.


0
2. Revise Sec.  3.362(e) to read as follows:


Sec.  3.362  Offsets under 38 U.S.C. 1151(b) of benefits awarded under 
38 U.S.C. 1151(a).

* * * * *
    (e) Offset of award of benefits under 38 U.S.C. chapter 21 or 38 
U.S.C. chapter 39. (1) If a judgment, settlement, or compromise covered 
in paragraphs (b) through (d) of this section becomes final on or after 
December 10, 2004, and includes an amount that is specifically 
designated for a purpose for which benefits are provided under 38 
U.S.C. chapter 21 (38 CFR 3.809 and 3.809a) or 38 U.S.C. chapter 39 (38 
CFR 3.808), and if VA awards 38 U.S.C. chapter 21 or 38 U.S.C. chapter 
39 benefits after the date on which the judgment, settlement, or 
compromise becomes final, the amount of the award will be reduced by 
the amount received under the judgment, settlement, or compromise for 
the same purpose.
    (2) If the amount described in paragraph (e)(1) of this section is 
greater than the amount of an award under 38 U.S.C. chapter 21 or 38 
U.S.C. chapter 39, the excess amount received under the judgment, 
settlement, or compromise will be offset against benefits otherwise 
payable under 38 U.S.C. chapter 11.

(Authority: 38 U.S.C. 1151)


0
3. Revise Sec.  3.800(a)(4) to read as follows:


Sec.  3.800  Disability or death due to hospitalization, etc.

* * * * *
    (a) * * *
    (4) Offset of award of benefits under 38 U.S.C. chapter 21 or 38 
U.S.C. chapter 39. (i) If a judgment, settlement, or compromise covered 
by paragraph (a)(2) of this section becomes final on or after December 
10, 2004, and includes an amount that is specifically designated for a 
purpose for which benefits are provided under 38 U.S.C. chapter 21 (38 
CFR 3.809 and 3.809a) or 38 U.S.C. chapter 39 (38 CFR 3.808), and if VA 
awards 38 U.S.C. chapter 21 or 38 U.S.C. chapter 39 benefits after the 
date on which the judgment, settlement, or compromise becomes final, 
the amount of the award will be reduced by the amount received under 
the judgment, settlement, or compromise for the same purpose.
    (ii) If the amount described in paragraph (a)(4)(i) of this section 
is greater than the amount of an award under 38 U.S.C. chapter 21 or 38 
U.S.C. chapter 39, the excess amount received under the judgment, 
settlement, or compromise will be offset against benefits otherwise 
payable under 38 U.S.C. chapter 11.


(Authority: 38 U.S.C. 1151(b)(2))

* * * * *

0
4. Amend Sec.  3.809 by:
0
a. In the introductory text, removing ``38 U.S.C. 2101(a)'' and adding 
in its place ``38 U.S.C. 2101(a) or 2101A(a)'' and by removing 
``veteran'' and adding in its place ``veteran or a member of the Armed 
Forces serving on active duty'';
0
b. Revising paragraph (a);
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c. Revising paragraph (b) introductory text;
0
d. In paragraph (b)(3), removing ``wheelchair.'' and adding, in its 
place, ``wheelchair, or'';
0
e. In paragraph (b)(4), removing ``with the loss of loss of use'' and 
adding in its place ``with the loss or loss of use'' and removing 
``wheelchair.'' and adding, in its place, ``wheelchair, or'';
0
f. Adding paragraphs (b)(5) and (b)(6);
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g. Removing paragraph (c);
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h. Redesignating paragraph (d) as new paragraph (c); and
0
i. Revising the authority citation at the end of the section.
    The revisions and additions read as follows:


Sec.  3.809  Specially adapted housing under 38 U.S.C. 2101(a).

* * * * *
    (a) Eligibility. A veteran must have had active military, naval, or 
air service after April 20, 1898. Benefits are not restricted to 
veterans with wartime service. On or after December 16, 2003, the 
benefit under this section is also available to a member of the Armed 
Forces serving on active duty.
    (b) Disability. A member of the Armed Forces serving on active duty 
must have a disability rated as permanent and total that was incurred 
or aggravated in line of duty in active military, naval, or air 
service. A veteran must be entitled to compensation under chapter 11 of 
title 38, United States Code, for a disability rated as permanent and 
total. In either case, the disability must be due to:
* * * * *
    (5) The loss or loss of use of both upper extremities such as to 
preclude use of the arms at or above the elbow, or
    (6) Full thickness or subdermal burns that have resulted in 
contractures with limitation of motion of two or more extremities or of 
at least one extremity and the trunk.
* * * * *

(Authority: 38 U.S.C. 1151(c)(1), 2101, 2101A)

* * * * *


0
5. Amend Sec.  3.809a by:
0
a. In the introductory text, removing ``38 U.S.C. 2101(b)'' and adding 
in its place ``38 U.S.C. 2101(b) or 2101A(a)'' and by removing ``April 
20, 1898,'' and adding in its place ``April 20, 1898, or to a member of 
the Armed Forces serving on active duty who is eligible for the benefit 
under this section on or after December 16, 2003,''.
0
b. Removing the authority citation after the introductory text.
0
c. In paragraph (a), removing ``veteran'' each place it appears and 
adding in each place ``member of the Armed Forces serving on active 
duty or veteran''; and by removing the last sentence.
0
d. Revising paragraph (b).
0
e. Removing paragraph (c).
0
f. Revising the authority citation at the end of the section.
0
g. Adding a cross-reference immediately after the authority citation at 
the end of the section.
    The revisions and addition read as follows:


Sec.  3.809a  Special home adaptation grants under 38 U.S.C. 2101(b).

* * * * *
    (b) A member of the Armed Forces serving on active duty must have a 
disability rated as permanent and total that was incurred or aggravated 
in line of duty in active military, naval, or air service. A veteran 
must be entitled to compensation under chapter 11 of title 38, United 
States Code, for a disability rated as permanent and total. In either 
case, the disability must:
    (1) Include the anatomical loss or loss of use of both hands, or
    (2) Be due to:
    (i) Blindness in both eyes with 5/200 visual acuity or less, or
    (ii) Deep partial thickness burns that have resulted in 
contractures with limitation of motion of two or more extremities or of 
at least one extremity and the trunk, or
    (iii) Full thickness or subdermal burns that have resulted in 
contracture(s) with limitation of motion of one or more extremities or 
the trunk, or
    (iv) Residuals of an inhalation injury (including, but not limited 
to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary 
disease).

(Authority: 38 U.S.C. 1151(c)(1), 2101, 2101A, 2104)



[[Page 57862]]


    Cross-Reference: Assistance to certain disabled veterans in 
acquiring specially adapted housing. See Sec. Sec.  36.4400 through 
36.4410 of this chapter.

[FR Doc. 2010-23629 Filed 9-22-10; 8:45 am]
BILLING CODE 8320-01-P