[Federal Register Volume 76, Number 221 (Wednesday, November 16, 2011)]
[Rules and Regulations]
[Pages 70883-70885]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-29579]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AN64


Clothing Allowance

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) amends its regulations 
regarding clothing allowances. The amendment provides for an annual 
clothing allowance for each qualifying prosthetic or orthopedic 
appliance worn or used by a veteran for a service-connected disability 
or disabilities that wears out or tears a single article of the 
veteran's clothing and for each physician-prescribed medication used by 
a veteran for a skin condition that is due to a service-connected 
disability that affects a single outergarment. The amendment also 
provides two annual clothing allowances if a veteran wears or uses more 
than one qualifying prosthetic or orthopedic appliance, physician-
prescribed medication for more than one skin condition, or an appliance 
and a medication for a service-connected disability or disabilities and 
the appliance(s) or medication(s) together cause a single article of 
clothing to wear out faster than if affected by a single appliance or 
medication. This amendment also makes certain technical changes to the 
rule.

DATES: Effective Date: This final rule is effective December 16, 2011.
    Applicability Date: This final rule applies to claims received by 
or pending before VA on or after December 16, 2011.

FOR FURTHER INFORMATION CONTACT: Tom Kniffen, Chief, Regulations Staff 
(211D), Compensation Service, Veterans Benefits Administration, 
Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 
20420, (202) 461-9725. This is not a toll-free number.

SUPPLEMENTARY INFORMATION: In a document published in the Federal 
Register on February 2, 2011 (76 FR 5733-5734), VA proposed to amend 
its regulations regarding clothing allowances in order to implement the 
holding of the U.S. Court of Appeals for the Federal Circuit (Federal 
Circuit) in Sursely v. Peake, 551 F.3d 1351, 1356 (Fed. Cir. 2009). In 
this final rule, VA will implement Sursely by amending 38 CFR 
3.810(a)(2) to provide that a veteran is entitled to a clothing 
allowance for each qualifying prosthetic or orthopedic appliance worn 
or used by a veteran because of a service-connected disability which 
tends to wear or tear clothing or medication prescribed by a physician 
and used by a veteran for a skin condition caused by a service-
connected disability which irreparably damages an outergarment if each 
appliance or medication affects a single article of clothing or 
outergarment.
    VA also provides in Sec.  3.810(a)(3) that a veteran is entitled to 
two annual clothing allowances if: (1) A veteran uses more than one 
qualifying prosthetic or orthopedic appliance, medication for more than 
one skin condition, or an appliance and a medication; and (2) the 
appliance(s) or medication(s) each satisfy the requirements of Sec.  
3.810(a)(1) and together tend to tear or wear a single article of 
clothing or irreparably damage an outergarment, requiring replacement 
at an increased rate than if the article of clothing, or outergarment, 
was affected by a single qualifying appliance or medication.

Comments in Response to Proposed Rule

    A 60-day comment period ended April 4, 2011, and VA received 
comments from seven members of the general public and one organization. 
Three individual commenters expressed general support for the rule. A 
fourth commenter stated that VA should expand the service-connected 
disabilities for which a clothing allowance is provided to include 
``very limited knee movement when walking'' which causes shoes to wear 
out faster. VA makes no change based on this comment because 38 U.S.C. 
1162 authorizes payment of a clothing allowance only if a veteran 
``wears or uses a prosthetic or orthopedic appliance'' that tends to 
wear out or tear the veteran's clothing or uses physician-prescribed 
medication for a skin condition due to a service-connected disability 
and the medication causes irreparable damage to the veteran's 
outergarments. No clothing allowance is payable if a veteran does not 
use a prosthetic or orthopedic appliance or medication for a skin 
condition.
    Another commenter stated that use of an Ankle-Foot Orthotic (AFO) 
wears out shoes as well as slacks/trousers. VA makes no change based on 
this comment because 38 U.S.C. 1162 does not authorize the payment of 
more than one clothing allowance based on a single qualifying 
appliance. Section 1162 authorizes VA to pay ``a clothing allowance of 
$716 per year'' to each veteran who, because of service-connected 
disability ``wears or uses a prosthetic appliance (including a 
wheelchair) which the Secretary determines tends to wear out or tear 
the clothing of the veteran.'' In Sursely, the Federal Circuit stated 
that ``by linking receipt of the [clothing allowance] to a single 
qualifying appliance, Congress recognized that multiple appliances 
might allow the award of multiple benefits.'' That decision provides no 
basis for interpreting section 1162 to allow more than one clothing 
allowance for a single appliance.
    A sixth commenter expressed that VA should establish ``no 
limitation for the number of clothing allowances per year'' because 
some veterans use a combination of prosthetic and/or orthopedic 
appliances for service-connected disabilities. VA appreciates this 
comment; however, VA makes no change in response to this comment 
because the rule as proposed already provides for multiple prosthetic 
and/or orthopedic appliances. As explained above, Sec.  3.810(a)(2) 
provides that a veteran is entitled to an annual clothing allowance for 
each prosthetic or orthopedic appliance used by the veteran if each 
appliance affects a distinct article of clothing and Sec.  3.810(a)(3) 
provides for two clothing allowances based on the cumulative effects of 
multiple appliances on a single article of clothing.
    The seventh commenter stated that currently, only metal-hinged 
prosthetic devices qualify for the clothing allowance and that VA 
should cover wear and tear caused by plastic-hinged prosthetics as 
well. The commenter further stated that prescription skin cream for the 
``face, neck, hands, arms, or any area not covered by clothing may come 
into contact with clothing, causing discoloration or rapid 
deterioration.'' VA appreciates these comments; however, VA makes no 
change to the rule based on these comments for the following reasons. 
The term ``prosthetic * * * appliance'' in Sec.  3.810(a)(1)(i), 
(a)(1)(ii)(A), (a)(2) and (3) includes plastic-hinged prosthetics and 
is not limited to metal-hinged prosthetic devices. With regard to the 
comment about medication that comes in contact with clothing, Sec.  
3.810(a) does not limit entitlement to a clothing allowance to 
medications that are covered by clothing. Rather a veteran is entitled 
to a clothing allowance if any physician-

[[Page 70884]]

prescribed medication used for a skin condition caused by a service-
connected disability irreparably damages the veteran's outergarment. As 
such, VA makes no change based on this comment.
    VA received an eighth and final comment from the National 
Organization of Veterans' Advocates, Inc. (NOVA). NOVA suggested that 
VA revise Sec.  3.810(a)(1)(i) to clarify that a veteran is entitled to 
one clothing allowance if a VA examination or hospital or examination 
report from a facility specified in 38 CFR 3.326(b) establishes that 
physician-prescribed medication for a skin condition due to a service-
connected disability causes irreparable damage to the veteran's 
outergarments. VA makes no change based on this comment because it is 
beyond the scope of this rulemaking. Section 3.810(a)(1)(i) restates, 
without change, VA's long-standing policy of providing that claims for 
clothing allowance that are based on certain types of disabilities 
(i.e., the loss or loss of use of a hand or foot compensable at the 
rate prescribed in 38 CFR 3.350(a), (b), (c), (d), or (f)) may be 
decided without the requirement for a certification from the VA Under 
Secretary for Health, or his or her designee, of medical facts 
establishing eligibility for the clothing allowance. Section 
3.810(a)(1)(ii) correspondingly provides that, in all other clothing 
allowance claims, including claims based on use of prescribed 
medication and claims based on use of a prosthetic or orthopedic device 
for conditions other than those specified in Sec.  3.810(a)(1)(i), 
certification from the Under Secretary for Health or his or her 
designee is necessary. VA's proposed rule did not propose to change 
this long-standing policy concerning the circumstances in which 
certification of medical facts is required. The purpose of this rule is 
to amend 38 CFR 3.810(a)(2) and (3) ``to implement Sursely,'' which 
addressed a veteran's entitlement to two clothing allowances for 
independently qualifying orthopedic appliances affecting different 
articles of clothing. 76 FR 5733; Sursely, 551 F.3d at 1356.
    VA will make the following non-substantive technical changes to the 
final rule to enhance clarity. The parenthetical ``(including a 
wheelchair)'' was included in proposed Sec.  3.810(a)(1)(i) and 
(a)(1)(ii)(A), but was not included in proposed Sec.  3.810(a)(2) and 
(3). VA will revise the parenthetical in Sec.  3.810(a)(1)(i) and 
(a)(1)(ii)(A) to read ``(including, but not limited to, a wheelchair)'' 
and also add this parenthetical after the term ``orthopedic appliance'' 
in paragraphs (a)(2) and (3) to clearly state that all qualifying 
prosthetic or orthopedic appliances, in addition to a wheelchair, are 
included.
    VA will replace the term ``distinct'' in the title of Sec.  
3.810(a)(2) with the term ``multiple types of'' in order to clarify 
that more than one clothing allowance is payable when more than one 
type of garment is affected. Similarly, in Sec.  3.810(a)(2)(ii), VA 
will replace the term ``distinct'' with ``more than one type of'' to 
clarify that more than one clothing allowance is payable when more than 
one type of article of clothing or outergarment is affected. We will 
also insert ``type of'' after ``single'' in the title of Sec.  
3.810(a)(3) and in Sec.  3.810(a)(3)(ii) and will replace ``an 
outergarment'' with ``a type of outergarment'' in Sec.  
3.810(a)(3)(ii). This will clarify that the references to garments or 
clothing in this regulation are to types of garments, such as shirts, 
rather than to individual garments, such as a specific shirt.
    In Sec.  3.810(a)(3)(ii), VA will replace the phrase ``at a faster 
rate than if affected by one qualifying appliance or medication'' with 
``at an increased rate of damage to the clothing or outergarment due to 
a second appliance or medication.'' This language will clarify that a 
second clothing allowance may be paid when a second appliance and/or 
medication increases the rate of damage to the clothing or 
outergarment.

Paperwork Reduction Act

    The collection of information under the Paperwork Reduction Act (44 
U.S.C. 3501-3521) referenced in the proposed rule has an existing OMB 
approval as a form. The form is VA Form 10-8678, Application for Annual 
Clothing Allowance (Under 38 U.S.C. 1162), OMB approval number 2900-
0198. No changes are made in this final rule to the collection of 
information.

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 Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess the 
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 effects, and other advantages; distributive impacts; 
and equity). Executive Order 13563 (Improving Regulation and Regulatory 
Review) emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
Executive Order 12866 (Regulatory Planning and Review) defines a 
``significant regulatory action,'' which requires review by the Office 
of Management and Budget (OMB), 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 
this Executive Order.''
    The economic, interagency, budgetary, legal, and policy 
implications of this regulatory action have been examined and it has 
been determined not to be a significant regulatory action under 
Executive Order 12866.

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 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 this proposed rule are 64.013, Veterans Prosthetic 
Appliances; and 64.109, Veterans Compensation for Service-Connected 
Disability.

[[Page 70885]]

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 November 2, 2011, 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: November 10, 2011.
Robert C. McFetridge,
Director of Regulation Policy and Management, Office of the General 
Counsel, Department of Veterans Affairs.

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

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.  3.810, paragraph (a) to read as follows:


Sec.  3.810  Clothing allowance.

    (a) Except as provided in paragraph (d) of this section, a veteran 
who has a service-connected disability, or a disability compensable 
under 38 U.S.C. 1151 as if it were service connected, is entitled, upon 
application therefore, to an annual clothing allowance, which is 
payable in a lump sum, as specified in this paragraph.
    (1) One clothing allowance. A veteran is entitled to one annual 
clothing allowance if--
    (i) A VA examination or a hospital or examination report from a 
facility specified in Sec.  3.326(b) establishes that the veteran, 
because of a service-connected disability or disabilities due to loss 
or loss of use of a hand or foot compensable at a rate specified in 
Sec.  3.350(a), (b), (c), (d), or (f), wears or uses one qualifying 
prosthetic or orthopedic appliance (including, but not limited to, a 
wheelchair) which tends to wear or tear clothing; or
    (ii) The Under Secretary for Health or a designee certifies that--
    (A) A veteran, because of a service-connected disability or 
disabilities, wears or uses one qualifying prosthetic or orthopedic 
appliance (including, but not limited to, a wheelchair) which tends to 
wear or tear clothing; or
    (B) A veteran uses medication prescribed by a physician for one 
skin condition, which is due to a service-connected disability, that 
causes irreparable damage to the veteran's outergarments.
    (2) More than one clothing allowance; multiple types of garments 
affected. A veteran is entitled to an annual clothing allowance for 
each prosthetic or orthopedic appliance (including, but not limited to, 
a wheelchair) or medication used by the veteran if each appliance or 
medication--
    (i) Satisfies the requirements of paragraph (a)(1) of this section; 
and
    (ii) Affects more than one type of article of clothing or 
outergarment.
    (3) Two clothing allowances; single type of garment affected. A 
veteran is entitled to two annual clothing allowances if a veteran uses 
more than one prosthetic or orthopedic appliance, (including, but not 
limited to, a wheelchair), medication for more than one skin condition, 
or an appliance and a medication, and the appliance(s) or 
medication(s)--
    (i) Each satisfy the requirements of paragraph (a)(1) of this 
section; and
    (ii) Together tend to wear or tear a single type of article of 
clothing or irreparably damage a type of outergarment at an increased 
rate of damage to the clothing or outergarment due to a second 
appliance or medication.
* * * * *
[FR Doc. 2011-29579 Filed 11-15-11; 8:45 am]
BILLING CODE 8320-01-P