[Federal Register Volume 77, Number 214 (Monday, November 5, 2012)]
[Proposed Rules]
[Pages 66419-66421]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-26607]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AO31


Eligibility of Disabled Veterans and Members of the Armed Forces 
With Severe Burn Injuries for Financial Assistance in the Purchase of 
an Automobile or Other Conveyance and Adaptive Equipment

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) is amending its 
adjudication regulation regarding a certificate of eligibility for 
financial assistance in the purchase of an automobile or other 
conveyance and adaptive equipment. The amendment is necessary to 
incorporate statutory changes made by the Veterans' Benefits Act of 
2010.

DATES: Written comments must be received on or before January 4, 2013.
    Applicability Date: VA would apply this rule to all claims for 
benefits received on or after October 1, 2011.

ADDRESSES: Written comments may be submitted through 
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. 
(This is not a toll-free number.) Comments should indicate that they 
are submitted in response to RIN 2900-AO31 ``Eligibility of Disabled 
Veterans and Members of the Armed Forces with Severe Burn Injuries for 
Financial Assistance in the Purchase of an Automobile or Other 
Conveyance and Adaptive Equipment.'' Copies of comments received will 
be available for public inspection in the Office of Regulation Policy 
and Management, Room 1063B, between the hours of 8:00 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 may be viewed online through the 
Federal Docket Management System (FDMS) at www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Nancy Copeland, Consultant, 
Regulations Staff (211D), Compensation Service, Veterans Benefits 
Administration, Department of Veterans Affairs, 810 Vermont Ave. NW., 
Washington, DC 20420, (202) 461-9487. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: Section 803 of Public Law 111-275, the 
Veterans' Benefits Act of 2010, amended subsection 3901(1)(A) of title 
38, United States Code (U.S.C.), by reformatting the statute and adding 
``severe burn injury (as determined pursuant to regulations prescribed 
by the Secretary)'' as one of the disabilities that VA will consider 
when making a determination of eligibility for financial assistance in 
the purchase of an automobile or other conveyance and adaptive 
equipment. Pursuant to the authority granted to the Secretary in 38 
U.S.C. 501(a) and 3901(1)(A)(iv), as added by the Veterans' Benefits 
Act of 2010, VA proposes to amend 38 CFR 3.808 to define the term 
``severe burn injury.''
    The purpose of 38 U.S.C. 3901 and 3902 is to provide an automotive 
allowance and adaptive equipment to veterans having certain severe 
disabilities that may impair their ability to operate a standard motor 
vehicle. Prior to the enactment of the Veterans' Benefits Act of 2010, 
the automobile allowance was authorized only for the loss or permanent 
loss of use of one or both hands or feet or for permanent impairment of 
vision of both eyes. In discussing the proposed extension of this 
benefit to veterans with severe burn

[[Page 66420]]

injuries, the Chairman of the Senate Committee on Veterans' Affairs 
explained that, ``[d]ue to the severe damage done to their skin, 
individuals with these disabilities experience difficulty operating a 
standard automobile not equipped to accommodate their disabilities'' 
and that the proposed legislation ``would help them obtain vehicles 
with special adaptations for assistance in and out of the vehicle, seat 
comfort, and climate control.'' 156 Cong. Rec. S7656 (daily ed. Sept. 
28, 2010) (statement of Chairman Akaka).
    For purposes of determining eligibility of disabled veterans and 
members of the Armed Forces for financial assistance in the purchase of 
an automobile or other conveyance and adaptive equipment, VA proposes 
to define severe burn injury as a disability resulting from a severe 
burn that is a deep partial thickness or full-thickness burn resulting 
in scar formation that causes contractures and limits motion of one or 
more extremities or the trunk and precludes effective operation of an 
automobile.
    Skin that has experienced deep partial and full-thickness burns is 
never restored to normal. In a deep partial thickness burn, there is 
complete destruction of the epidermis and severe damage to the dermal 
layer. Healing may occur with hypertrophic scars and keloid formation. 
In a full-thickness burn, there is complete destruction of the 
epidermis and dermis, and there may be some damage to the underlying 
subcutaneous fat layer. Scar tissue from these types of burns is thin, 
fragile, and prone to chronic ulceration. Scars resulting from these 
burns may cause disfigurement. The most frequent cause of disability is 
burn scar contracture. This residual prohibits movement of a joint in 
its normal range of motion and influences not only the underlying joint 
but also the adjacent joints. Burn scar contracture is not only limited 
to the extremities but also can occur as a result of burns to the 
trunk, resulting in postural impairments.
    Although full-thickness burns are generally more disabling than 
deep partial thickness burns, depending upon location, a deep partial 
thickness burn may result in more scarring with contracture limiting 
motion and, therefore, be more disabling than a full-thickness burn. 
For example, a deep partial thickness burn resulting in limited motion 
may involve an important joint such as a thumb, hand, or elbow which 
are more crucial in operating an automobile than other joints. 
Additionally, some individuals tend to be significant scar formers 
based on race and ethnicity. For example, one individual with a deep 
partial thickness burn may be more significantly disabled due to the 
exuberance of scar formation with contractures than another individual 
with a well treated full-thickness burn. As such, the category of burn 
injury is not always the predictor of disability. Rather, disability 
must be based on the eventual limitation of motion of which joint is 
involved. For all these reasons, VA proposes to consider both ``deep 
partial thickness burns'' and ``full-thickness burns'' as severe burn 
injuries.
    We believe that VA's definition of severe burn injury for purposes 
of determining eligibility of disabled veterans and members of the 
Armed Forces for financial assistance concerning the purchase of an 
automobile or other conveyance and adaptive equipment certification is 
consistent with congressional intent. This definition generally 
reflects the purpose found at 38 U.S.C. 3901 and 3902 to authorize the 
automobile allowance or other conveyance and adaptive equipment for 
severely disabling conditions affecting the veteran's ability or 
military member's ability to operate a standard automobile in a safe 
and effective manner. As such, VA believes that it is fair and 
reasonable to define a severe burn injury as a deep partial thickness 
or full-thickness burn resulting in scar formation that causes 
contractures and limits motion of one or more extremities or the trunk 
and precludes effective operation of an automobile.
    Therefore, in 38 CFR 3.808, VA would redesignate current paragraph 
(b)(4) as (b)(5) and add a new paragraph (b)(4) that adds ``severe burn 
injury,'' and the criteria noted above, as one of the conditions that 
determines entitlement for a certificate of eligibility for financial 
assistance in the purchase of an automobile or other conveyance and 
adaptive equipment. Additionally, VA would replace the title 
``Automobiles or other conveyances; certification'' with ``Automobiles 
or other conveyances and adaptive equipment; certification'' to mirror 
the statutory provisions of 38 U.S.C. 3901 and 3902. Finally, VA would 
revise the authority citation for paragraph (b) to include 38 U.S.C. 
3901. Since the statutory amendment authorizing this regulatory change 
became effective on October 1, 2011, VA would apply this rule to all 
claims for benefits received on or after October 1, 2011.

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).

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed rule would 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 proposed rule would not affect any small entities. 
Only VA beneficiaries could be directly affected. Therefore, pursuant 
to 5 U.S.C. 605(b), this proposed 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.

[[Page 66421]]

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 proposed 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 64.013, Veterans 
Prosthetic Appliances; 64.100, Automobiles and Adaptive Equipment for 
Certain Disabled Veterans and Members of the Armed Forces; 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 October 24, 2012,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: October 25, 2012.
William F. Russo,
Deputy Director, Office of Regulation Policy and Management, Office of 
the General Counsel, Department of Veterans Affairs.
    For the reasons set out in the preamble, VA proposes to amend 38 
CFR part 3 as follows:

PART 3--ADJUDICATION

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

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

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

    2. Amend Sec.  3.808 as follows:
    a. Revise the section heading.
    b. Redesignate paragraph (b)(4) as (b)(5).
    c. Add a new paragraph (b)(4).
    d. Revise the authority citation at the end of paragraph (b).
    The addition and revisions read as follows:


Sec.  3.808  Automobiles or other conveyances and adaptive equipment; 
certification.

* * * * *
    (b) * * *
    (4) A severe burn injury. For the purposes of this section, a 
severe burn injury is defined as follows:
    (i) Deep partial thickness or full-thickness burns resulting in 
scar formation that causes contractures and limits motion of one or 
more extremities or the trunk and precludes effective operation of an 
automobile.
    (5) For adaptive equipment eligibility only, ankylosis of one or 
both knees or one or both hips.

(Authority: 38 U.S.C. 3901, 3902)

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[FR Doc. 2012-26607 Filed 11-2-12; 8:45 am]
BILLING CODE 8320-01-P