[Federal Register Volume 81, Number 76 (Wednesday, April 20, 2016)]
[Proposed Rules]
[Pages 23228-23232]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-08937]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AP48


Extra-Schedular Evaluations for Individual Disabilities

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its 
adjudication regulation pertaining to extra-schedular consideration of 
a service-connected disability in exceptional compensation cases. In a 
recent decision, the United States Court of Appeals for the Federal 
Circuit (Federal Circuit) held that VA's regulation, as written, 
requires VA to consider the combined effect of two or more service-
connected disabilities when determining whether to refer a disability 
evaluation for extra-schedular consideration. VA, however, has long 
interpreted its regulation to provide an extra-schedular evaluation for 
a single disability, not the combined effect of two or more 
disabilities. This proposed amendment will clarify VA's regulation 
pertaining to exceptional compensation claims such that an extra-
schedular evaluation is available only for an individual service-
connected disability but not for the combined effect of more than one 
service-connected disability.

DATES: Comments must be received on or before June 20, 2016.

ADDRESSES: Written comments may be submitted through 
www.Regulations.gov; by mail or hand-delivery to Director, Regulation 
Policy and Management (02REG), Department of Veterans Affairs, 810 
Vermont Avenue 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-

[[Page 23229]]

AP48--Extra-schedular evaluations for individual disabilities.'' Copies 
of comments received will be available for public inspection in the 
Office of Regulation Policy and Management, Room 1068, 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: Stephanie Li, Chief, Regulations Staff 
(211D), Compensation Service, Department of Veterans Affairs, 810 
Vermont Avenue NW., Washington, DC 20420, (202) 461-9700 (This is not a 
toll-free telephone number).

SUPPLEMENTARY INFORMATION: The United State Court of Appeals noted in 
Menegassi v. Shinseki that Congress has given VA the authority to 
interpret its own regulations under its general rulemaking authority, 
citing 38 U.S.C. 501. 638 F.3d 1379, 1382 (Fed. Cir. 2011). Currently, 
38 CFR 3.321(b)(1) provides that, ``[t]o accord justice . . . to the 
exceptional case where the schedular evaluations are found to be 
inadequate,'' the Under Secretary for Benefits (USB) or the Director of 
the Compensation and Pension Service is authorized ``to approve . . . 
an extra-schedular evaluation commensurate with the average earning 
capacity impairment due exclusively to the service-connected disability 
or disabilities. The governing norm in these exceptional cases is: A 
finding that the case presents such an exceptional or unusual 
disability picture with such related factors as marked interference 
with employment or frequent periods of hospitalization as to render 
impractical the application of the regular schedular standards.''
    In Johnson v. McDonald, the Court explained that the plain language 
of Sec.  3.321(b)(1) using the plural forms of the ``schedular 
evaluations'' and ``disabilities'' is unambiguous and requires that VA 
consider the need for extra-schedular review by evaluating the 
collective impact of two or more service-connected disabilities, in 
addition to evaluating the effect of a single service-connected 
disability. 762 F.3d 1362, 1365-66 (Fed. Cir. 2014)., that Id. at 1365-
66.
    The history of 38 CFR 3.321(b)(1) reveals that Federal Circuit's 
interpretation does not accurately reflect VA's intent in issuing the 
regulation. Since 1936, VA has interpreted Sec.  3.321(b)(1) to provide 
for an extra-schedular evaluation for each service-connected disability 
for which the schedular rating is inadequate based upon the regulatory 
criteria. Section 3.321(b)(1) was originally promulgated as R & PR 
1307, instructing that correspondence from a field office to the 
Director of the Compensation Service alleging that the rating schedule 
provides inadequate or excessive ratings in an individual case will 
contain a statement of facts indicating as clearly as possible the 
extent to which the reduction in actual earnings is due to the service-
connected disability and the extent to which this reduction would 
probably affect the average worker, in occupations similar to the 
claimant's preenlistment occupation, suffering a similar disability. R 
& PR 1307(B) and (C)(1930).
    In 1936, R & PR 1307 was recodified as R & PR 1142, requiring a 
submitting agency to provide a recommendation concerning service 
connection and evaluation of every disability, under the applicable 
schedules as interpreted by the submitting agency. Then in 1954, this 
sentence was deleted from the regulation but later incorporated in the 
Department of Veterans Benefits Administration (VBA) Manual 8-5 
Revised, para. 47.j. (Jan. 6, 1958). Thus, for 28 years following 
promulgating R & PR 1307(B) and (C), the VA predecessor regulations to 
Sec.  3.321(b)(1) and the Manual provided for an extra-schedular 
evaluation based upon the effects of a single ``disability,'' not 
``disabilities''.
    In 1961, VA recodified R & PR 1307(B) and (C) as 38 CFR 3.321(b)(1) 
and added a sentence authorizing an extra-schedular evaluation 
commensurate with the average earning capacity impairment due 
exclusively to the service-connected disability or disabilities. The 
VBA Manual provision regarding extra-schedular evaluations remained 
virtually the same from 1992 through June 30, 2015, when it was revised 
to implement Johnson. In 1992, the Manual was revised by adding the 
word ``individual'' before the word ``disability(ies)'' in paragraph 
3.09, Submission For Extra-Schedular Consideration. M21-1, Part VI, 
para. 3.09 (Mar. 17, 1992). As amended, paragraph 3.09 required 
preparation of a memorandum to be submitted to Central Office whenever 
the schedular evaluations are considered to be inadequate for an 
individual disability(ies).
    VBA Manual M21-1, Part III, Subpart iv, chpt. 6, Sec.  B, para. 4 
(Aug. 3, 2011), stated in pertinent part:

a. Extra-Schedular Evaluations in Compensation Claims

    Consider the issue of entitlement to an extra-schedular 
evaluation in compensation claims under

 38 CFR 3.321(b)(1) only where
* * * * *
-- there is evidence of exception or unusual circumstances 
indicating that the rating schedule may be inadequate to compensate 
for the average impairment of earning capacity due to disability 
(for example, marked interference with employment or frequent 
periods of hospitalization)
* * * * *

c. Submitting Compensation Claims for Extra-Schedular Consideration

    Submit compensation claims to C&P Service for extra-schedular 
consideration under 38 CFR 3.321(b)(1) or 38 CFR 4.16(b) if

 the schedular evaluations are considered to be inadequate 
for an individual disability
* * * * *

See Thun v. Shinseki, 572 F.3d 1366, 1369 (Fed. Cir. 2009) (referring 
to this Manual provision as VA's interpretation of 38 CFR 3.321(b)(1)), 
aff'd 22 Vet. App. 111 (2008). Thus, VA's interpretation of section 
3.321(b)(1) as manifested by the VBA Manual was consistent for 22 
years, until the Johnson decision.
    In addition, a 1996 General Counsel precedent opinion regarding the 
applicability of the regulation reads that ``[s]ection 3.321(b)(1) 
applies when the rating schedule is inadequate to compensate for the 
average impairment of earning capacity from a particular disability.'' 
VAOPGCPREC 6-96, para. 7, Add. 7. The opinion instructs that ``when a 
claimant submits evidence that his or her service-connected disability 
affects employability in ways not contemplated by the rating schedule, 
the Board should consider the applicability of section 3.321(b)(1).'' 
Id.
    In 2013, VA published a proposed revision to 38 CFR 3.321(b)(1) as 
part of its Regulation Rewrite Project. 78 FR 71042, 71217 (Nov. 27, 
2013). Consistent with VA's long-standing interpretation, that revision 
proposes to clarify that extra-schedular evaluations may be assigned 
for a specific service-connected disability, as distinguished from the 
combined effects of multiple disabilities. Id. However, that proposed 
rule was published before the Johnson decision. We are therefore 
proposing a version of Sec.  3.321(b)(1) in this rulemaking that 
differs from the 2013 proposed rule in order to respond specifically to 
the Federal Circuit's analysis of the plain language of the current 
regulation. VA proposes to amend Sec.  3.321(b)(1) to clarify that

[[Page 23230]]

Sec.  3.321(b)(1) provides an extra-schedular evaluation for an 
individual service-connected disability that is so exceptional or 
unusual due to factors such as marked interference with employment or 
frequent periods of hospitalization as to render evaluation under the 
rating schedule impractical.
    VA proposes to retain the first sentence of current Sec.  
3.321(b)(1), which states that ratings will be based on the average 
impairments of earning capacity and that the Secretary shall 
periodically readjust the rating schedule, because it explains the 
limited scope of section 3.321(b)(1). Pursuant to 38 U.S.C. 1155, VA is 
authorized to ``adopt and apply a schedule of rating of reductions in 
earning capacity from specific injuries or combination of injuries. The 
ratings shall be based, as far as practicable, upon the average 
impairments of earning capacity in civil occupations,'' rather than 
consideration of a veteran's actual wages or income. Based upon section 
1155, the United States Court of Appeals for Veterans Claims (Veterans 
Court) rejected the argument that an inadequacy in the rating schedule 
for purposes of 38 CFR 3.321(b)(1) can be established solely by showing 
an asserted gap between a veteran's income and the income of similarly 
qualified workers in the same field. Thun v. Peake, 22 Vet. App. 111, 
116 (2008). The Veterans Court explained that extra-schedular 
consideration cannot be used to undo the approximate nature that 
results from the rating system based on average impairment of earning 
capacity authorized by Congress. Id. Consistent with section 1155 and 
Thun, VA's proposed rule is not intended to authorize personalized 
ratings as a routine matter but only to provide for limited discretion 
in cases where the schedule is inadequate to compensate for average 
impairment of earning capacity.
    VA proposes to revise the second sentence of 38 CFR 3.321(b)(1) to 
specify that extra-schedular consideration is available if ``the 
schedular evaluation is inadequate to rate a single service-connected 
disability.'' We have added this language to explain that section 
3.321(b)(1) would apply only to a single disability rather than upon 
consideration of multiple service-connected disabilities as the Federal 
Circuit held in Johnson. We have also deleted the phrase ``or 
disabilities'' at the end of the second sentence for the same purpose. 
VA also proposes to revise the last sentence of the regulation to 
clarify that the governing norm is a finding that ``application of the 
regular schedular standards is impractical because the referred 
disability is so exceptional or unusual due to such related factors as 
marked interference with employment or frequent periods of 
hospitalization.''
    Other parts of the current Sec.  3.321(b)(1) have been rewritten 
for clarity, including the heading of Sec.  3.321(b), but the concepts 
remain unchanged. VA proposes to delete the reference to the Under 
Secretary for Benefits (USB) in current Sec.  3.321(b)(1). Although the 
regulation has long allowed for referral for USB extra-schedular 
consideration, in practice VA service centers refer these claims to the 
Director of the Compensation Service. This revision brings authority in 
line with actual practice. The Director of the Compensation Service may 
delegate to other Compensation Service personnel the authority to 
approve extra-schedular ratings and, currently, such authority has been 
given to certain personnel in the Policy Staff of the Compensation 
Service. This is consistent with the established principle that VBA 
personnel are authorized to carry out such functions as may be assigned 
to them for purposes of administering VA benefits. See 38 CFR 
2.6(b)(1), 3.100(a).
    VA's proposed rule is logical and consistent with the regulatory 
scheme for evaluating disabilities. Individual disabilities are 
evaluated under criteria in VA's rating schedule describing the effects 
of specific diseases and injuries. See 38 CFR 4.71-4.150. The ratings 
assigned for individual conditions are combined into a single 
``combined evaluation'' under a uniform formula set forth in a table. 
38 CFR 3.323(a), 4.25. There is plainly a difference between the 
application of the diverse schedular criteria relating to specific 
conditions, and the application of a uniform formula for combining 
individual disability ratings. VA's proposed revision to Sec.  
3.321(b)(1), clarifying that that the regulation pertains to a single 
disability, is consistent with this distinction.
    With respect to evaluation of individual conditions, the rating 
schedule criteria identify the predominant disabling features of the 
condition. For example, if VA determines that the condition produces 
significant disabling effects that are not contemplated by the rating-
schedule criteria for that condition, VA may find that the rating-
schedule criteria are inadequate in that case. In contrast, no criteria 
in the rating schedule provide for determining the ``adequacy'' of an 
overall combined evaluation that derives from several disabilities and 
their associated symptoms.
    When VA assigns disability ratings for two or more individual 
disabilities, those ratings are combined by applying a standard formula 
provided in 38 CFR 4.25. There are no provisions in the rating schedule 
describing impairments that would be associated with a particular 
combination of disabilities determined by using this formula. 
Accordingly, there are no applicable standards to determine whether the 
combined rating is adequate to compensate for the combined effects of 
those disabilities. Indeed, in view of the vast number of potential 
combinations of disabilities that could arise, it is not feasible to 
formulate standards. In the absence of any applicable objective 
standards for evaluating the ``adequacy'' of an overall combined rating 
for multiple disabilities, requiring adjudicators to consider the 
adequacy of combined ratings would lead to inconsistent and highly 
subjective determinations. Accordingly, consistent with our long-
standing interpretation, VA has determined that consideration of extra-
schedular ratings is most logically done only at the level of 
individual disabilities. Any extra-schedular ratings assigned for 
individual disabilities may then be combined under the standard formula 
for combining ratings. The proposed language for section 3.321(b)(1) 
requiring consideration of the adequacy of the schedular evaluations in 
VA's rating schedule is consistent with the evaluation of individual 
conditions.
    In addition, statutes and VA's implementing regulations provide 
additional compensation for the combined effect of more than one 
service-connected disability. Under 38 U.S.C. 1114(k)-(s), a veteran is 
entitled to special monthly compensation, in addition to the 
compensation payable under the VA rating schedule, for certain 
combinations of disabilities, e.g., anatomical loss or loss of use of 
both buttocks, both feet, or one hand and one foot, deafness in both 
ears or blindness in both eyes. See 38 CFR 3.350. In addition, 38 
U.S.C. 1160(a) provides that if a veteran has suffered loss of certain 
paired organs or extremities as a result of service-connected 
disabilities and non-service-connected disabilities, VA must assign and 
pay the veteran the applicable rate of compensation as if the 
combination of disabilities were the result of service-connected 
disability. See 38 CFR 3.383. Accordingly, in cases where Congress or 
VA has determined that special rating consideration is warranted based 
on the combined effects of multiple disabilities, they have

[[Page 23231]]

expressly specified the manner of considering these combined effects.
    Finally, VA regulations authorize a rating of total disability 
based on individual unemployability for veterans whose disabilities 
meet certain criteria. Under 38 CFR 4.16(a), an adjudicator may assign 
a total disability evaluation based upon individual unemployability 
rating for compensation purposes, without referral to any other 
official, if, in cases of multiple service-connected disabilities, a 
veteran has one service-connected disability rated at least 40-percent 
disabling and a combined rating of at least 70 percent and is unable to 
secure or follow a substantially gainful occupation as the result of 
such disability or disabilities. Under 38 CFR 4.16(b), if a veteran's 
service-connected disabilities do not meet the percentage requirements 
of section 4.16(a), but the veteran is unable to secure and follow a 
substantially gainful occupation by reason of such service-connected 
disability, the rating board must submit the case to the Director of 
the Compensation Service for consideration of entitlement to a total 
disability based on individual unemployability rating. VA has thus 
prescribed a uniform standard for considering whether the combined 
effects of multiple disabilities produce total impairment of earning 
capacity. However, in instances where the inability to secure and 
follow a substantially gainful occupation is not shown, VA believes 
that, to ensure fair and consistent application of rating standards, 
consideration of extra-schedular ratings should be conducted with 
respect to individual disabilities rather than the combined effects of 
multiple disabilities.

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,'' requiring review by the Office of 
Management and Budget (OMB), unless OMB waives such review, 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 proposed 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 proposed 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 proposed rule would directly affect only 
individuals and will not directly affect small entities. 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 proposed rule would have no such 
effect on State, local, and 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 of 1995 (44 U.S.C. 
3501-3521).

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance number and title for the 
program affected by this document is 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. Robert D. 
Snyder, Chief of Staff, approved this document on April 11, 2016, for 
publication.

List of Subjects in 38 CFR Part 3

    Administrative practice and procedure, Claims, Disability benefits, 
Veterans.

    Dated: April 13, 2016.
Jeffrey Martin,
Office of Regulation Policy & Management, Office of the General 
Counsel, Department of Veterans Affairs.

    For the reasons set out in the preamble, the Department of Veterans 
Affairs proposes to amend 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. Amend Sec.  3.321 by revising the heading of paragraph (b)., 
revising paragraph (b)(1), and adding an authority citation at the end 
of paragraph (b).
    The revisions and additions read as follows:


Sec.  3.321  General rating considerations.

* * * * *
    (b) Extra-schedular ratings in unusual cases. (1) Disability 
compensation. Ratings shall be based, as far as practicable, upon the 
average impairments of earning capacity with the additional proviso 
that the Secretary shall from time to time readjust this schedule of 
ratings in accordance with experience. To accord justice to the 
exceptional case where the schedular evaluation is inadequate to rate a 
single

[[Page 23232]]

service-connected disability, the Director of the Compensation Service 
or his or her delegatee, upon field station submission, is authorized 
to approve on the basis of the criteria set forth in this paragraph 
(b), an extra-schedular evaluation commensurate with the actual 
impairment of earning capacity due exclusively to the referred 
disability. The governing norm in these exceptional cases is a finding 
by the Director of the Compensation Service or delegatee that 
application of the regular schedular standards is impractical because 
the referred disability is so exceptional or unusual due to such 
related factors as marked interference with employment or frequent 
periods of hospitalization.
* * * * *

(Authority: 38 U.S.C. 501(a), 1155)

[FR Doc. 2016-08937 Filed 4-19-16; 8:45 am]
 BILLING CODE 8320-01-P