[Federal Register Volume 83, Number 89 (Tuesday, May 8, 2018)]
[Rules and Regulations]
[Pages 20735-20737]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-09736]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AP23


Special Monthly Compensation for Veterans With Traumatic Brain 
Injury

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) amends its 
adjudication regulations to add an additional compensation benefit for 
veterans with residuals of traumatic brain injury (TBI). This final 
rule incorporates in regulations a benefit authorized by the enactment 
of the Veterans' Benefits Act of 2010. The Veterans' Benefits Act 
authorizes special monthly compensation (SMC) for veterans with TBI who 
are in need of aid and attendance, and in the absence of such aid and 
attendance, would require hospitalization, nursing home care, or other 
residential institutional care.

DATES: Effective Date: This final rule is effective June 7, 2018.
    Applicability Date: The provisions of this final rule shall apply 
to all applications for benefits received by VA on or after October 1, 
2011, or that were pending before VA, the United States Court of 
Appeals for Veterans Claims, or the United States Court of Appeals for 
the Federal Circuit on October 1, 2011.

FOR FURTHER INFORMATION CONTACT: Roselyn Tyson, 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: On December 21, 2016, VA published in the 
Federal Register (81 FR 93649) a proposed rule to amend 38 CFR 3.350 
and 3.352 to add SMC for veterans with residuals of TBI. As explained 
in the proposed rule, section 601 of the Veterans' Benefits Act of 
2010, Public Law 111-275 (the Veterans' Benefits Act) authorized SMC 
for veterans who, as the result of service-connected disability, are in 
need of regular aid and attendance for the residuals of TBI, and in the 
absence of such regular aid and attendance, would require 
hospitalization, nursing home care, or other residential institutional 
care. Effective October 1, 2011, section 601 authorized an additional 
monetary allowance for veterans with residuals of TBI who require this 
higher level of care but would not otherwise qualify for the benefit 
under 38 U.S.C. 1114(r)(2).
    To date, VA has relied on non-regulatory guidance to implement 
section 601 of the Veterans' Benefits Act. By issuing this final rule, 
VA updates its adjudication regulations to reflect the authorization 
provided by section 601.

Response to Public Comments

    As noted above, VA published the proposed rule in the Federal 
Register (81 FR 93649) on December 21, 2016. VA provided a 60-day 
public comment period, which ended on February 21, 2017, and received 
two comments. VA responds to all comments as follows. For the reasons 
set forth in the proposed rule and below, VA adopts the proposed rule 
as final, without changes.
    Both commenters expressed support for the rulemaking, noting that 
SMC should be awarded for TBI. VA appreciates the time and effort 
expended by these commenters in reviewing the proposed rule and in 
submitting comments, as well as their support for this rulemaking.
    One commenter stated that this rulemaking should restrict the use 
of SMC payments to treatment for TBI. The commenter noted that 
application for SMC funds should be made on a yearly basis and the 
funds should be applied specifically for medical care of the TBI. VA 
notes that it has no authority to direct how payments are used once 
awarded to a veteran; VA only has legal authority to determine benefit 
eligibility and entitlement.
    The same commenter stated that application of SMC should be limited 
to claims where TBI that was incurred in the line of duty and was not a 
result of self-inflicted injury, and the veteran applying for the 
benefit was not dishonorably discharged. This commenter also appears to 
suggest that posttraumatic stress disorder (PTSD) be included in the 
definition of a TBI and provided examples of individuals who may have 
benefited from this approach.
    While any injury outside the line of duty would not be service 
connected, we note that the occurrence of such an injury is interpreted 
very broadly. See Holton v. Shinseki, 557 F.3d 1362, 1366-67 (Fed. Cir. 
2009) (explaining that an injury or disease will be deemed to have been 
incurred in the line of duty if it occurred at almost any time during a 
veteran's active service--even during authorized leave). With regard to 
the commenter's statement that self-inflicted injuries should not be 
the basis for service-connected TBI for SMC, we note that self-
inflicted injuries generally would not be covered to the extent they 
constituted willful misconduct. Whether or not a given self-injury 
rises to the level of willful misconduct is a case specific factual 
determination that is separate from the level of compensation at stake, 
which is what is affected by this rule. See 38 CFR 3.301. While the 
commenter also expressed that SMC based on service-connected TBI should 
not be available to individuals with a dishonorable discharge, VA 
statutes and regulations preclude veteran status and benefits for 
individuals with a dishonorable discharge. 38 U.S.C. 101(2); 38 CFR 
3.12(a). Finally, in response to the commenter's last assertion that VA 
should define whether PTSD ``is included under the definition of 
[TBI],'' we note that PTSD is already a disability available for VA 
service connection and rating as a mental disorder under 38 CFR 4.130, 
Diagnostic Code 9411. Therefore, VA already compensates veterans for 
service-connected PTSD, including with PTSD that is somehow causally 
related to TBI.
    In any case, the general eligibility criteria for SMC and the 
definition of TBI are outside the scope of this rulemaking. Therefore, 
VA makes no change based on these comments.
    The second commenter stated that veterans with TBI should have 
always qualified for maximum monthly relief. VA notes that SMC is 
authorized by statute, and prior to the enactment of the Veterans' 
Benefits Act, VA lacked the statutory authority to provide the level of 
SMC contemplated in the Act for TBI. The commenter also noted the 
length of time it took to authorize and implement SMC for TBI. As noted 
above, VA has to date relied on non-regulatory guidance to implement 
the statutory authorization for SMC for TBI.

[[Page 20736]]

Finally, the commenter stated that VA should provide coverage to 
veterans for all injuries, not just TBI. As noted above, the 
requirements for service connection, including for disabilities other 
than TBI, are beyond the scope of this rulemaking. Therefore, VA makes 
no change based on this comment.

Executive Orders 12866, 13563 and 13771

    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 regulatory action 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 
website at http://www.va.gov/orpm/, by following the link for ``VA 
Regulations Published From FY 2004 Through Fiscal Year to Date.'' This 
final rule is not an E.O. 13771 regulatory action because this final 
rule is not significant under E.O. 12866.

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 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, 2 U.S.C. 1532, requires 
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

    Although this document contains provisions constituting a 
collection of information under the provisions of the Paperwork 
Reduction Act (44 U.S.C. 3501 et seq.), no new or proposed revised 
collections of information are associated with this final rule. The 
information collection requirements are currently approved by the 
Office of Management and Budget (OMB) and have been assigned OMB 
control number 2900-0721. Since this collection was revised several 
years after the implementation of the Veterans' Benefit Act of 2010 and 
VBA's interim guidance, VA concludes that any new respondents have been 
captured in the existing respondent numbers. See Regulatory Impact 
Analysis for a full explanation.

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. Jacquelyn 
Hayes-Byrd, Deputy Chief of Staff, Department of Veterans Affairs, 
approved this document on May 2, 2018, 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: May 2, 2018.
Jeffrey M. Martin,
Impact Analyst, Office of Regulation Policy & Management, Office of the 
Secretary, Department of Veterans Affairs.

    For the reasons stated in the preamble to this final rule, 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. Amend Sec.  3.350 by adding paragraph (j) and a parenthetical 
authority citation to read as follows:


Sec.  3.350   Special monthly compensation ratings.

* * * * *
    (j) Special aid and attendance benefit for residuals of traumatic 
brain injury (38 U.S.C. 1114(t)). The special monthly compensation 
provided by 38 U.S.C. 1114(t) is payable to a veteran who, as the 
result of service-connected disability, is in need of regular aid and 
attendance for the residuals of traumatic brain injury, is not eligible 
for compensation under 38 U.S.C. 1114(r)(2), and in the absence of such 
regular aid and attendance would require hospitalization, nursing home 
care, or other residential institutional care. Determination of this 
need is subject to the criteria of Sec.  3.352.
    (1) A veteran described in this paragraph (j) shall be entitled to 
the amount equal to the compensation authorized under 38 U.S.C. 1114(o) 
or the maximum rate authorized under 38 U.S.C. 1114(p) and, in addition 
to such compensation, a monthly allowance equal to the rate described 
in 38 U.S.C. 1114(r)(2) during periods he or she is not hospitalized at 
United States Government expense. (See Sec.  3.552(b)(2) as to 
continuance following admission for hospitalization.)
    (2) An allowance authorized under 38 U.S.C. 1114(t) shall be paid 
in lieu of

[[Page 20737]]

any allowance authorized by 38 U.S.C. 1114(r)(1).

(Authority: 38 U.S.C. 501, 38 U.S.C. 1114(t))


0
3. Amend Sec.  3.352 by:
0
a. In paragraph (b)(1)(iii), removing the phrase ``paragraph (b)(2)'' 
and in its place adding the phrase ``paragraph (b)(3)'';
0
b. Redesignating paragraphs (b)(2) through (5) as (b)(3) through (6);
0
c. Adding new paragraph (b)(2);
0
d. In newly redesignated paragraph (b)(4), removing the phrase 
``paragraph (b)(2)'' and in its place adding the phrase ``paragraph 
(b)(3)'';
0
e. Removing the parenthetical authority citation at the end of 
paragraph (b); and
0
f. Adding a parenthetical authority citation at the end of the section.
    The additions read as follows:


Sec.  3.352   Criteria for determining need for aid and attendance and 
``permanently bedridden.''

* * * * *
    (b) * * *
    (2) A veteran is entitled to the higher level aid and attendance 
allowance authorized by Sec.  3.350(j) in lieu of the regular aid and 
attendance allowance when all of the following conditions are met:
    (i) As a result of service-connected residuals of traumatic brain 
injury, the veteran meets the requirements for entitlement to the 
regular aid and attendance allowance in paragraph (a) of this section.
    (ii) As a result of service-connected residuals of traumatic brain 
injury, the veteran needs a ``higher level of care'' (as defined in 
paragraph (b)(3) of this section) than is required to establish 
entitlement to the regular aid and attendance allowance, and in the 
absence of the provision of such higher level of care the veteran would 
require hospitalization, nursing home care, or other residential 
institutional care.
* * * * *

(Authority: 38 U.S.C. 501, 1114(r)(2), 1114(t))


0
4. Amend Sec.  3.552 by:
0
a. In paragraph (b)(2), removing ``38 U.S.C. 1114(r) (1) or (2)'' and 
adding in its place ``38 U.S.C. 1114(r)(1) or (2) or 38 U.S.C. 
1114(t)'';
0
b. Removing the parenthetical authority citation at the end of 
paragraph (b); and
0
c. Adding a parenthetical authority citation at the end of the section.
    The addition reads as follows:


Sec.  3.552  Adjustment of allowance for aid and attendance.

* * * * *

(Authority: 38 U.S.C. 5503(c))


[FR Doc. 2018-09736 Filed 5-7-18; 8:45 am]
 BILLING CODE 8320-01-P