[Federal Register Volume 76, Number 232 (Friday, December 2, 2011)]
[Rules and Regulations]
[Pages 75458-75461]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-31020]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 9

RIN 2900-AO20


Servicemembers' Group Life Insurance Traumatic Injury Protection 
Program--Genitourinary Losses

AGENCY: Department of Veterans Affairs.

ACTION: Interim final rule.

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SUMMARY: The Department of Veterans Affairs (VA) is issuing this 
interim final rule that amends the regulations governing the 
Servicemembers' Group Life Insurance Traumatic Injury Protection 
(TSGLI) program by adding certain genitourinary (GU) system losses to 
the TSGLI Schedule of Losses and defining terms relevant to these new 
losses. This amendment is necessary to make qualifying GU losses a 
basis for paying GU-injured Servicemembers TSGLI benefits. The intended 
effect is to expand the list of losses for which TSGLI payments can be 
made.

DATES: Effective Date: This interim final rule is effective December 2, 
2011. Comments must be received on or before January 31, 2012.
    Applicability Date: VA will apply this rule to injuries incurred on 
or after October 7, 2001.

ADDRESSES: Written comments may be submitted through http://www.Regulations.gov; by mail or hand-delivery to: Director, Regulations 
Management (02REG), Department of Veterans Affairs, 810 Vermont Ave. 
NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026. 
Comments should indicate that they are submitted in response to ``RIN 
2900-AO20--Servicemembers' Group Life Insurance Traumatic Injury 
Protection Program--Genitourinary Losses.'' Copies of comments received 
will be available for public inspection in the Office of Regulations 
Management, Room 1063B, between the hours of 8 a.m. and 4:30 p.m., 
Monday through Friday (except holidays). Please call (202) 461-4902 for 
an appointment. (This is not a toll-free number.) In addition, during 
the comment period, comments are available to view online through the 
Federal Docket Management System (FDMS) at http://www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Monica Keitt, Attorney/Advisor, 
Department of Veterans Affairs Regional Office and Insurance Center 
(310/290B), 5000 Wissahickon Avenue, P.O. Box 8079, Philadelphia, PA 
19101, (215) 842-2000, ext. 2905. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: Congress established the Servicemembers' 
Group Life Insurance Traumatic Injury Protection (TSGLI) program to 
provide financial assistance to severely injured Servicemembers who 
suffer a traumatic injury directly resulting in a TSGLI scheduled loss. 
See Emergency Supplemental Appropriations Act for Defense, the Global 
War on Terror, and Tsunami Relief, 2005, Public Law 109-13, sec. 1032, 
119 Stat. 231, 257. Until now, injuries to the genitourinary (GU) 
system were not specifically included in the TSGLI Schedule of Losses 
at 38 CFR 9.20(f), although Servicemembers who sustain GU system 
injuries often are eligible for TSGLI payments for other losses under 
the Schedule incurred as a result of the same traumatic event that 
caused the GU loss. For example, a Servicemember who suffers GU 
injuries may be eligible for a TSGLI payment if hospitalized for 15 
consecutive days. 38 CFR 9.20(f)(20).
    A recent Department of Defense (DoD) report showed that, from 2009 
to 2010, the proportion of war casualties who arrived at Landstuhl 
Regional Medical Center in Germany suffering from GU injuries increased 
from 4.8 percent to 9.1 percent. DoD also found that approximately 570 
Servicemembers sustained GU injuries involving the genitalia between 
October 7, 2001, and May 2, 2011. Joint Theater Trauma Registry Ad Hoc 
Report for October 7, 2001, to May 2, 2011, Institute for Surgical 
Research (May 5, 2011). In addition, the United States Army Institute 
of Surgical Research at Fort Sam Houston found that 5 percent of 
Servicemembers on the Joint Theater Trauma Registry who were admitted 
as a result of trauma in overseas contingency operations between 
October 2001 and January 2008 had one or more GU injuries. Faye B. 
Serkin et al., Combat Urologic Trauma In US Military Overseas 
Contingency Operations, 69 J. Trauma Suppl. 1 S175 (2010). Recent 
consultation with medical experts at the National Naval Medical Center 
(NNMC) in Bethesda, Maryland, and Brooke Army Medical Center (BAMC) in 
San Antonio, Texas, where many injured Servicemembers are treated, 
revealed that there has been a recent increase in the number of GU 
injuries experienced by Servicemembers. As a result, the Secretary of 
Veterans Affairs has decided to add certain GU system losses to the 
TSGLI Schedule of Losses for which a TSGLI benefit is payable.
    In the TSGLI Schedule of Losses codified at 38 CFR 9.20(f), VA is 
redesignating current paragraphs (19) and (20) as paragraphs (20) and 
(21), respectively, and adding GU system losses as the new paragraph 
(19). The medical experts report that, generally, GU injuries treated 
at NNMC and BAMC involve severe damage to the perineum consisting of 
complete loss of the genitalia or significant damage resulting in 
partial or complete loss of GU functional capacity. The NNMC and BAMC 
medical experts also stated that erectile dysfunction is common in male 
Servicemembers whom they have treated following severe GU injuries. 
BAMC specialists noted that the majority of the recent GU injuries 
treated at their facility are the result of dismounted complex blast 
injuries, which have increased recently because military personnel in 
combat zones are now conducting more walking patrols, which place them 
outside the protection of their armored vehicles. VA is therefore 
adding anatomical loss and loss of use of the penis as a scheduled loss 
for which $50,000 in TSGLI benefits is payable.
    VA is defining ``anatomical loss of the penis'' in new Sec.  
9.20(e)(6)(xxi) as amputation of the glans penis or any portion of the 
shaft of the penis above the glans penis (i.e., closer to the body), or 
damage to the glans penis or shaft of the penis that requires 
reconstructive surgery. Because this definition and

[[Page 75459]]

other definitions of anatomical loss of GU organs include the word 
``amputation,'' we are revising the definition of ``amputation'' in 
Sec.  9.20(e)(6)(xx) to apply to genital organs as well as to limbs. VA 
is defining ``permanent loss of use of the penis'' in new Sec.  
9.20(e)(6)(xxii) to mean damage to the glans penis or shaft of the 
penis that results in complete loss of the ability to perform sexual 
intercourse that is reasonably certain to continue throughout the 
lifetime of the member.
    VA is also adding to the Schedule of Losses in paragraph (f)(19) 
anatomical loss of one testicle, for which $25,000 in TSGLI benefits is 
payable, and anatomical loss of both testicles, for which $50,000 in 
TSGLI benefits is payable. The term ``anatomical loss of the 
testicle(s)'' is defined in new Sec.  9.20(e)(6)(xxiii) as the 
amputation of, or damage to, one or both testicles that requires 
testicular salvage, reconstructive surgery, or both.
    The medical experts also advised that female Servicemembers may 
experience anatomical loss or functional impairment of the external 
genitalia due to a traumatic injury. VA is therefore adding to the 
Schedule of Losses in Sec.  9.20(f)(19) anatomical loss of the vulva, 
uterus, or vaginal canal and permanent loss of use of the vulva or 
vaginal canal. A TSGLI benefit of $50,000 is payable for either the 
anatomical loss of the vulva, uterus, or vaginal canal or for permanent 
loss of use of the vulva or vaginal canal. New Sec.  9.20(e)(6)(xxv) 
defines ``anatomical loss of the vulva, uterus, or vaginal canal'' as 
the complete or partial amputation of the vulva, uterus, or vaginal 
canal or damage to the vulva, uterus, or vaginal canal that requires 
reconstructive surgery. VA defines ``permanent loss of use of the vulva 
or vaginal canal'' in new Sec.  9.20(e)(6)(xxvi) as damage to the vulva 
or vaginal canal that results in complete loss of the ability to 
perform sexual intercourse that is reasonably certain to continue 
throughout the lifetime of the member.
    VA is also adding anatomical loss of one or both ovaries to the 
TSGLI Schedule of Losses in paragraph (f)(19), for which TSGLI benefits 
of $25,000 and $50,000 are payable, respectively. The term ``anatomical 
loss of the ovary(ies)'' is defined in new Sec.  9.20(e)(6)(xxvii) as 
the amputation of one or both ovaries or damage to one or both ovaries 
that requires ovarian salvage, reconstructive surgery, or both.
    According to the NNMC and BAMC physicians, traumatic GU injuries 
may involve functional loss of the testicles or ovaries that requires 
hormonal replacement therapy in lieu of surgical removal. As a result, 
VA is adding permanent loss of use of both testicles to paragraph 
(f)(19) in the TSGLI Schedule of Losses, for which $50,000 in TSGLI 
benefits is payable. The term ``permanent loss of use of both 
testicles'' is defined in new Sec.  9.20(e)(6)(xxiv) as damage to both 
testicles resulting in the need for hormonal replacement therapy that 
is medically required and reasonably certain to continue throughout the 
lifetime of the member. In addition, VA is adding permanent loss of use 
of both ovaries to paragraph (f)(19) in the TSGLI Schedule of Losses, 
for which $50,000 in TSGLI benefits is payable. The term ``permanent 
loss of use of both ovaries'' is defined in new Sec.  
9.20(e)(6)(xxviii) as damage to both ovaries resulting in the need for 
hormonal replacement therapy that is medically required and reasonably 
certain to continue throughout the lifetime of the member.
    Finally, many of the reported GU injuries often require permanent 
urinary diversion (i.e., catheterization), reconstructive surgery, or 
long-term rehabilitation to restore GU functional capacity, even though 
no anatomical loss is involved. If there is functional loss of both 
kidneys, hemodialysis is required, even if urinary diversion is not a 
factor. VA is therefore adding total and permanent loss of urinary 
system function to paragraph (f)(19) in the TSGLI Schedule of Losses, 
for which $50,000 in TSGLI benefits is payable. The term ``total and 
permanent loss of urinary system function'' is defined in new Sec.  
9.20(e)(6)(xxix) as damage to the urethra, ureter(s), both kidneys, 
bladder, or urethral sphincter muscle(s) that requires permanent 
urinary diversion and/or hemodialysis, either of which is reasonably 
certain to continue throughout the lifetime of the member.
    GU losses may be combined with each other, but the maximum benefit 
for GU losses may not exceed $50,000, as stated in Note 1 of new Sec.  
9.20(f)(19). The GU losses are added as paragraph (19) of the TSGLI 
Schedule of Losses and thus can be combined with other TSGLI losses 
listed in Sec.  9.20(f)(1) through (18), as explained in Note 2 of new 
Sec.  9.20(f)(19). The total TSGLI payment received for all TSGLI 
losses, including those in combination with the new GU losses, that 
result from a single traumatic event may not exceed $100,000, as stated 
in Note 2 of Sec.  9.20(f)(19). See 38 CFR 9.20(e)(5)(i). As a result 
of this amendment, the references to ``(18)'' in the first two 
paragraphs of Sec.  9.20(f) are replaced with ``(19),'' and the 
reference to ``(f)(19) through (20)'' is replaced with ``(f)(20) 
through (21)''.
    When Congress created the TSGLI program in 2005, it authorized 
TSGLI payments for losses resulting from traumatic injuries sustained 
between October 7, 2001, and December 1, 2005, if the qualifying loss 
was a direct result of injuries incurred in Operation Enduring Freedom 
or Operation Iraqi Freedom. Public Law 109-13, sec. 1032(c)(1), 119 
Stat. at 259. In 2006, Congress limited such retroactive application to 
injuries incurred in the theater of operations for Operation Enduring 
Freedom or Operation Iraqi Freedom. Veterans' Housing Opportunity and 
Benefits Improvement Act of 2006, Public Law 109-233, sec. 501(b), 120 
Stat. 397, 414. In 2010, Congress eliminated the requirement that a 
loss directly resulting from traumatic injury had to be incurred in 
such theaters of operations or in such operations in order to qualify 
for retroactive benefits. Veterans' Benefits Act of 2010, Public Law 
111-275, sec. 408, 124 Stat. 2864, 2881. We therefore make this rule 
applicable to GU losses resulting from a traumatic injury incurred on 
or after October 7, 2001, regardless of whether the traumatic event 
occurred in those operations.

Administrative Procedure Act

    In accordance with 5 U.S.C. 553(b)(3)(B), the Secretary of Veterans 
Affairs finds that there is good cause to dispense with the opportunity 
for prior notice and public comment with respect to this rule, which 
modifies the TSGLI program in a manner advantageous to Servicemembers. 
The Secretary finds that it is impracticable to delay this regulation 
for the purpose of soliciting public comments because Servicemembers 
who suffer these GU injuries and their families need the TSGLI payment 
as soon as possible to reduce the financial burden related to the 
Servicemembers' injuries. As the number of GU injuries continues to 
increase due to more ground troop patrols in high risk areas, the 
number of potential Servicemembers that may need assistance under this 
rule will also increase. For this reason, the Secretary of Veterans 
Affairs is issuing this rule as an interim final rule. The Secretary of 
Veterans Affairs will consider and address comments that are received 
within 60 days of the date this interim final rule is published in the 
Federal Register. For the same reasons, the Secretary of Veterans 
Affairs finds there is good cause for dispensing with a delayed 
effective date for this rule.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that

[[Page 75460]]

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 would have no such effect on State, local, or Tribal 
governments or on the private sector.

Paperwork Reduction Act

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

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, 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'' requiring 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.''
    VA has examined the economic, interagency, budgetary, legal, and 
policy implications of this regulatory action and has determined that 
it is not a significant regulatory action under Executive Order 12866.

Regulatory Flexibility Act

    The Secretary of Veterans Affairs hereby certifies that this 
interim 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 et seq. This interim final 
rule will directly affect only individuals and will not directly affect 
small entities. 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 Number and Title

    The Catalog of Federal Domestic Assistance Program number and title 
for this regulation is 64.103, Life Insurance for Veterans.

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 October 27, 2011, for publication.

List of Subjects in Part 9

    Life insurance, Military personnel, Veterans.

    Dated: November 29, 2011.
Robert C. McFetridge,
Director of Regulation Policy and Management, Office of the General 
Counsel, Department of Veterans Affairs.

    For the reasons stated in the preamble, the Department of Veterans 
Affairs is amending 38 CFR part 9 as follows:

PART 9--SERVICEMEMBERS' GROUP LIFE INSURANCE AND VETERANS' GROUP 
LIFE INSURANCE

0
1. The authority citation for part 9 continues to read as follows:

    Authority: 38 U.S.C. 501, 1965-1980A, unless otherwise noted.


0
2. Section 9.20 is amended by:
0
a. Revising paragraph (e)(6)(xx);
0
b. Adding paragraphs (e)(6)(xxi) through (xxix);
0
c. Redesignating paragraphs (f)(19) and (f)(20) as paragraphs (f)(20) 
and (f)(21), respectively;
0
d. Adding new paragraph (f)(19);
0
e. The two introductory paragraphs in the table in paragraph (f) are 
revised.
    The revision and additions reads as follows:


Sec.  9.20  Traumatic injury protection.

* * * * *
    (e) * * *
    (6) * * *
    (xx) The term amputation means the severance or removal of a limb 
or genital organ or part of a limb or genital organ resulting from 
trauma or surgery. With regard to limbs an amputation above a joint 
means a severance or removal that is closer to the body than the 
specified joint is.
    (xxi) The term anatomical loss of the penis is defined as 
amputation of the glans penis or any portion of the shaft of the penis 
above the glans penis (i.e. closer to the body) or damage to the glans 
penis or shaft of the penis that requires reconstructive surgery.
    (xxii) The term permanent loss of use of the penis is defined as 
damage to the glans penis or shaft of the penis that results in 
complete loss of the ability to perform sexual intercourse that is 
reasonably certain to continue throughout the lifetime of the member.
    (xxiii) The term anatomical loss of the testicle(s) is defined as 
the amputation of, or damage to, one or both testicles that requires 
testicular salvage, reconstructive surgery, or both.
    (xxiv) The term permanent loss of use of both testicles is defined 
as damage to both testicles resulting in the need for hormonal 
replacement therapy that is medically required and reasonably certain 
to continue throughout the lifetime of the member.
    (xxv) The term anatomical loss of the vulva, uterus, or vaginal 
canal is defined as the complete or partial amputation of the vulva, 
uterus, or vaginal canal or damage to the vulva, uterus, or vaginal 
canal that requires reconstructive surgery.
    (xxvi) The term permanent loss of use of the vulva or vaginal canal 
is defined as damage to the vulva or vaginal canal that results in 
complete loss of the ability to perform sexual intercourse that is 
reasonably certain to continue throughout the lifetime of the member.
    (xxvii) The term anatomical loss of the ovary(ies) is defined as 
the amputation of one or both ovaries or damage to one or both ovaries 
that requires ovarian salvage, reconstructive surgery, or both.
    (xxviii) The term permanent loss of use of both ovaries is defined 
as damage to both ovaries resulting in the need for hormonal 
replacement therapy that is medically required and reasonably certain 
to continue throughout the lifetime of the member.
    (xxix) The term total and permanent loss of urinary system function 
is defined as damage to the urethra, ureter(s), both kidneys, bladder, 
or urethral sphincter muscle(s) that requires urinary diversion and/or

[[Page 75461]]

hemodialysis, either of which is reasonably certain to continue 
throughout the lifetime of the member.
    (f) * * *

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For losses listed in paragraphs (f)(1) through (19) of
 this section, multiple losses resulting from a single
 traumatic event may be combined for purposes of a
 single payment (except where noted otherwise); however,
 the total payment amount may not exceed $100,000 for
 losses resulting from a single traumatic event.
Payments for losses listed in paragraphs (f)(20) through
 (21) of this section may not be made in addition to
 payments for losses under paragraphs (f)(1) through
 (19)--only the higher amount will be paid. The total
 payment amount may not exceed $100,000 for losses
 resulting from a single traumatic event.
------------------------------------------------------------------------
If the loss is--                                                Then the
                                                                  amount
                                                             payable for
                                                           the loss is--
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(19) Genitourinary Losses
    [ssbox] Anatomical loss of the penis................         $50,000
    [ssbox] Permanent loss of use of the penis..........          50,000
    [ssbox] Anatomical loss of one testicle.............          25,000
    [ssbox] Anatomical loss of both testicles...........          50,000
    [ssbox] Permanent loss of use of both testicles.....          50,000
    [ssbox] Anatomical loss of the vulva, uterus, or              50,000
     vaginal canal......................................
    [ssbox] Permanent loss of use of the vulva or                 50,000
     vaginal canal......................................
    [ssbox] Anatomical loss of one ovary................          25,000
    [ssbox] Anatomical loss of both ovaries.............          50,000
    [ssbox] Permanent loss of use of both ovaries.......          50,000
    [ssbox] Total and permanent loss of urinary system            50,000
     function...........................................
------------------------------------------------------------------------
Note 1: Losses due to genitourinary injuries may be combined with each
  other, but the maximum benefit for genitourinary losses may not exceed
  $50,000.
Note 2: Any genitourinary loss may be combined with other injuries
  listed in Sec.   9.20(f)(1) through (18) and treated as one loss,
  provided that all losses are the result of a single traumatic event.
  However, the total payment may not exceed $100,000.

* * * * *
[FR Doc. 2011-31020 Filed 12-1-11; 8:45 am]
BILLING CODE 8230-01-P