[Federal Register Volume 80, Number 53 (Thursday, March 19, 2015)]
[Rules and Regulations]
[Pages 14308-14309]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-06212]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 3 and 4

RIN 2900-AO96


Schedule for Rating Disabilities--Mental Disorders and Definition 
of Psychosis for Certain VA Purposes

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) adopts as final, 
without change, an interim final rule amending its Schedule for Rating 
Disabilities (VASRD) dealing with mental disorders and its adjudication 
regulations that define the term ``psychosis.'' Outdated references are 
replaced with references to the Diagnostic and Statistical Manual of 
Mental Disorders, Fifth Edition (DSM-5). Nomenclature used to refer to 
certain mental disorders is amended to conform to DSM-5. This rule also 
provides clarification of the applicability date.

DATES: Effective Date: This rule is effective on March 19, 2015. The 
incorporation by reference of certain publications listed in the rule 
is approved by the Director of the Federal Register as of March 19, 
2015.
    Applicability Date: The provisions of this final rule shall apply 
to all applications for benefits that are received by VA or that are 
pending before the agency of original jurisdiction on or after August 
4, 2014. The Secretary does not intend for the provisions of this final 
rule to apply to claims that were pending before the Board of Veterans' 
Appeals (i.e., certified for appeal to the Board of Veterans' Appeals 
on or before August 4, 2014), the United States Court of Appeals for 
Veterans Claims, or the United States Court of Appeals for the Federal 
Circuit on August 4, 2014, even if such claims are subsequently 
remanded to the agency of original jurisdiction.

FOR FURTHER INFORMATION CONTACT: Ioulia Vvedenskaya, Medical Officer, 
VASRD Regulations Staff (211C), Compensation Service, Veterans Benefits 
Administration, Department of Veterans Affairs, 810 Vermont Avenue NW., 
Washington, DC 20420, (202) 461-9700. (This is not a toll-free 
telephone number.)

SUPPLEMENTARY INFORMATION: VA published an interim final rule in the 
Federal Register at 79 FR 45093 on August 4, 2014, to amend the portion 
of the VASRD dealing with mental disorders and its adjudication 
regulations which define the term ``psychosis.'' The DSM-5, which was 
published by the American Psychiatric Association in May 2013, provides 
a common language and standard criteria for the classification of 
mental disorders. The amendments in the interim final rule deleted 
outdated references to the DSM-IV and DSM-IV-TR and replaced them with 
references to DSM-5. Additionally, the rulemaking updated the 
nomenclature in the VASRD to refer to certain mental disorders to 
conform to DSM-5 terminology.
    VA provided a 60-day public comment period, which ended on October 
3, 2014, and received no public comments in response to the publication 
of this interim final rule. One non-comment was received from a VA 
employee suggesting additional changes to Part 3 regulations which are 
outside the scope of this rulemaking. No changes were made as a result 
of the non-comment. Although no comments were received on this issue, 
in reviewing the interim final rule to prepare for publication of the 
final rule, VA determined that the applicability date should be 
clarified. For the reasons set forth in the interim final rule and 
below, we are adopting the interim final rule as final, with changes to 
the applicability date, as explained below.
    Upon further review, VA has amended the language of the 
applicability date to ensure clarity and avoid potential misapplication 
of this final rule. In the interim final rule, VA stated that the 
provisions applied to all applications for benefits that are received 
by VA or that are pending before the agency of original jurisdiction on 
or after the effective date of the interim final rule. For clarity, 
this language has been amended to specify that the provisions of the 
final rule apply to claims received by VA or pending before the agency 
of original jurisdiction as of August 4, 2014, the date the interim 
final rule was published in the Federal Register and became effective. 
Similarly, the interim final rule stated that the provisions did not 
apply to claims that were certified for appeal to the Board of 
Veterans' Appeals or were pending before the Board of Veterans' 
Appeals, the United States Court of Appeals for Veterans Claims, or the 
United States Court of Appeals for the Federal Circuit. For clarity, 
this language has been amended to specify that the provisions of the 
final rule do not apply to claims that were pending before the Board of 
Veterans' Appeals (i.e., certified for appeal to the Board of Veterans' 
Appeals on or before August 4, 2014), the United States Court of 
Appeals for Veterans Claims, or the United States Court of Appeals for 
the Federal Circuit on August 4, 2014, even if such claims are 
subsequently remanded to the agency of original jurisdiction. No other 
changes or amendments to the applicability date language are made.

Incorporation by Reference

    The Director of the Federal Register approves the incorporation by 
reference of the American Psychiatric Association's Diagnostic and 
Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) (2013) 
for the purposes of 38 CFR 4.125(a) in accordance with 5 U.S.C. 552(a) 
and 1 CFR part 51. You may obtain a copy from the American Psychiatric 
Association, 1000 Wilson Boulevard, Arlington, VA 22209-3901. You may 
inspect a copy at the Office of Regulation Policy and Management, 
Department of Veterans Affairs, 810 Vermont Avenue NW., Room 1068, 
Washington, DC 20420 or the Office of the Federal Register, 800 North 
Capitol Street NW., Suite 700, Washington, DC. Although Sec. Sec.  
3.384 and 4.130 also mention DSM-5, incorporation by reference is not 
required because those sections merely refer to the DSM-5 as a source 
and not as a requirement. In contrast, Sec.  4.125 requires claims 
adjudicators to use the DSM-5.

Administrative Procedure Act

    Pursuant to 5 U.S.C. 553(b)(B) and (d)(3), VA found that there was 
good cause to dispense with advance public notice and opportunity to 
comment on the interim final rule and good cause to publish that rule 
with an immediate effective date. The interim final rule was necessary 
to implement immediately the Secretary's decision that health 
professionals must utilize the latest diagnostic standards--the DSM-5--
the same standards used to diagnose and treat veterans with mental 
disorders--to adjudicate claims pertaining to mental

[[Page 14309]]

disorders. Delay in the implementation of this rule would have been 
impracticable, unnecessary, and contrary to public interest, 
particularly to veterans.
    It would have been impracticable to provide opportunity for prior 
notice and comment for this rulemaking because a delay in 
implementation would have required the Veterans Health Administration 
(VHA) to continue to diagnose mental disorders under two versions of 
the DSM until this regulation became effective, one for clinical 
purposes (under DSM-5) and one for compensation purposes (under DSM-
IV). It would have been unnecessary because it was inevitable that the 
Veterans Benefits Administration (VBA) would adopt the DSM-5 for 
diagnostic purposes because VHA clinicians have a professional duty as 
licensed medical practitioners to use the most current medical 
guidelines, in this case the DSM-5. It would have been contrary to the 
public interest because a delay in VBA's transition to the DSM-5 would 
have denied veterans timely access to benefits based on current and 
accurate clinical diagnostic criteria already adopted by the 
psychiatric community.
    The change to the references from DSM-IV and DSM-IV-TR to DSM-5 in 
VBA's adjudication regulations did not present a change in how mental 
disorders are evaluated under the VASRD, nor were any disorders removed 
from the VASRD. VA has reviewed the contents of the DSM-5 to ensure 
that, while some disabilities have been renamed, re-categorized, or 
consolidated into another diagnosis, all mental disorders currently 
listed in the VASRD are accounted for. In cases of periodic updates of 
clinical guidelines and medical terminology used by the medical 
community, such as DSM-5, VA has no authority to comment, challenge, or 
change the content, terminology, or nomenclature based on public 
comment. VA's use of the DSM-5 is limited to conforming to the most 
current medical standards and practices in diagnosing mental 
disabilities.
    For the foregoing reasons, and as explained in further detail in 
the interim final rule, the Secretary issued the rule as an interim 
final rule with immediate effect.

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 final rule have been examined, and it has been 
determined not to be a significant regulatory action under Executive 
Order 12866. VA's impact analysis can be found as a supporting document 
at http://www.regulations.gov, usually within 48 hours after the 
rulemaking document is published. Additionally, a copy of this 
rulemaking and its impact analysis are available on VA's Web site at 
http://www.va.gov/orpm/, by following the link for ``VA Regulations 
Published From FY 2004 Through Fiscal Year to Date.''

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 will not affect any small entities. Only certain 
VA beneficiaries could be directly affected. Therefore, pursuant to 5 
U.S.C. 605(b), this rulemaking is exempt from the initial and final 
regulatory flexibility analysis requirements of sections 603 and 604.

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 will have no such effect on 
State, local, and tribal governments, or on the private sector.

Paperwork Reduction Act

    This final rule contains no provisions constituting a collection of 
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).

Catalog of Federal Domestic Assistance Numbers and Titles

    The Catalog of Federal Domestic Assistance program numbers and 
titles for this rule are 64.009, Veterans Medical Care Benefits; 
64.104, Pension for Non-Service-Connected Disability for Veterans; 
64.109, Veterans Compensation for Service-Connected Disability; and 
64.110, Veterans Dependency and Indemnity Compensation for Service-
Connected Death.

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. Jose D. 
Riojas, Chief of Staff, Department of Veterans Affairs, approved this 
document on March 12, 2015, for publication.

List of Subjects

38 CFR Part 3

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

38 CFR Part 4

    Disability benefits, Incorporation by reference, Pensions, 
Veterans.

    Dated: March 13, 2015.
Jeffrey M. Martin,
Office Manager, Office of Regulation Policy & Management, Office of the 
General Counsel, U.S. Department of Veterans Affairs.

    Based on the rationale set forth in the interim final rule 
published in the Federal Register at 79 FR 45093 on August 4, 2014, and 
in this document, VA is adopting the provisions of the interim final 
rule as a final rule without change.

[FR Doc. 2015-06212 Filed 3-18-15; 8:45 am]
BILLING CODE 8320-01-P