[Federal Register Volume 85, Number 177 (Friday, September 11, 2020)]
[Proposed Rules]
[Pages 56189-56192]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-17672]
-----------------------------------------------------------------------
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Parts 3
RIN 2900-AQ80
Aggravation Definition
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Veterans Affairs (VA) proposes its
adjudication regulations relating to aggravation of service-connected
disabilities to more clearly define ``aggravation'' in service-
connection claims. The revisions would explicitly confirm a singular
definition of ``aggravation'' that includes the requirement of
``permanent worsening.'' The revisions would also include minor
organizational and technical changes.
DATES: Comments must be received on or before November 10, 2020.
ADDRESSES: Comments may be submitted through www.Regulations.gov; or
mailed to: Director, Compensation Service, VASRD Program Office,
Department of Veterans Affairs, 1800 G St. NW, Room 644, Washington, DC
20006. Comments should indicate that they are submitted in response to
``RIN 2900-AQ80, Aggravation Definition.'' Comments received will be
available Regulations.gov for public viewing, inspection or copies.
FOR FURTHER INFORMATION CONTACT: Keronica Richardson, Policy Analyst,
VASRD Program Office (210), Compensation Service (21C), Department of
Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202)
461-9700. (This is not a toll-free telephone number.)
SUPPLEMENTARY INFORMATION:
I. Service Connection Based on Aggravation
For veterans who have injuries or diseases that existed prior to
service and worsened during service, VA awards service connection and
compensates them for the increase in disability. 38 CFR 3.306. For the
purposes of this regulatory preamble, this basis of service connection
will be referred to as ``in-service aggravation.'' Likewise, for
veterans who have nonservice-connected injuries or diseases that are
worsened by service-connected disabilities, VA awards service
connection and compensates them for the increase in disability. 38 CFR
3.310. For the purposes of this regulatory preamble, this basis of
service connection will be referred to as ``post-service aggravation.''
Both part 3.306 and part 3.310 provide that service connection
based on aggravation is limited to situations where there is an
increase in disability not caused by the natural progression of the
injury or disease. Both regulations also provide that the increase must
be measurable from an established baseline, although the burden is on
VA to establish the baseline for purposes of in-service aggravation,
whereas the burden is on the veteran to submit medical evidence
establishing a baseline for purposes of post-service aggravation.
Compare 38 CFR 3.306(b) with 38 CFR 3.310(b); see also 71 FR 52,744,
52,745 (Sept. 7, 2006) (final rule amending 38 CFR 3.310).
Section 3.306(a) derives from 38 U.S.C. 1153, which provides that a
preexisting injury or disease will be considered to have been
``aggravated'' by active service ``where there is an increase in
disability during such service,'' unless the increase is due to the
natural progress of the disease.
Section 3.310(b) applies aggravation to the context of what is
often called ``secondary'' service connection--when a service-connected
disability itself causes a separate disability. Secondary service
connection derives from the basic entitlement statutes applicable to
disability compensation: 38 U.S.C. 1110 and 1131. As counterparts for
wartime and peacetime service, each provides for compensation for
``disability resulting from personal injury suffered or disease
contracted in line of duty'' or for ``aggravation of a preexisting
injury suffered or disease contracted in line of duty.'' Given that
these basic entitlement statutes also reference in-service aggravation,
VA proposes to add those references to section 3.306 as well.
II. The Need for Regulatory Amendment
The primary purpose of this proposed regulatory amendment is to
provide a singular definition of ``aggravation'' by clarifying two
phrases contained within 38 CFR 3.306 and 3.310; specifically,
``increase in disability'' in section 3.306 and ``any increase in
severity'' in section 3.310. These phrases are not currently defined by
statute or regulation, but rather by case law.
The premise that ``disability'' refers to impairment of earning
capacity is firmly established in 38 U.S.C. 1155 and 38 CFR 4.1. Courts
have long and consistently recognized this definition in regard to both
in-service and post-service aggravation. See Davis v. Principi, 276
F.3d 1341, 1344 (2002) (addressing in-service aggravation of a
preexisting condition); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en
banc)
[[Page 56190]]
(addressing post-service aggravation). Both 38 CFR 3.306 and 3.310
serve the same ultimate goal of compensating veterans for increase in
disability, whether based on aggravation of a preexisting disability
(in-service context) or aggravation of a nonservice-connected
disability (post-service context).
Although these regulations are built on the same fundamental
concepts, the differences in their wording have caused confusion over
how to apply ``aggravation'' in both contexts. Because the phrases
``increase in disability'' and ``any increase in severity'' are not
clearly defined, there has been uncertainty over what standard to use
in determining whether ``aggravation'' is demonstrated. The incongruent
wording in these two regulations has been a consistent point of
confusion and contention in the claims process, including on appeal.
Many appellants have argued that the standard for ``aggravation'' of
preexisting disabilities that worsened during service (under section
3.306) is different than for ``aggravation'' of post-service
disabilities worsened by service-connected disabilities (under section
3.310). Recently, in the case of Ward v. Wilkie, the United States
Court of Appeals for Veterans Claims (Veterans Court) held that the
term ``aggravation'' under section 3.310 (as currently drafted)
contemplates even temporary flare-ups. 31 Vet. App. 233, 240 (2019).
Although the Veterans Court discussed the current authorizing
statutes for 38 CFR 3.306 and 3.310 in order to reach its regulatory
holding, its statutory analysis was limited. See 31 Vet. App. at 238-
39. The Veterans Court noted that the term ``aggravation,'' although
present in 38 U.S.C. 1153, ``is not contained in the portions of 38
U.S.C. 1110 and 1131, from which secondary service connection
derives.'' 31 Vet. App.at 238. Rather, the Court noted, sections 1110
and 1131 only use that term as pertaining to a pre-existing condition
``aggravated'' during service, which would not be applicable in the
context of post-service aggravation. Id. However, the Veterans Court
did not hold that sections 1110 and 1131 clearly foreclose a permanent
worsening requirement in the term ``aggravation.'' Instead, the
Veterans Court focused its analysis on interpreting section 3.310 as
currently written, which includes the term ``[a]ny increase in
severity'' that is not contained in the authorizing statutes. Id. at
238-39. VA is proposing to clarify its intent by amending the
regulation in response to this interpretation of its regulation.
Specifically, VA intends to clarify, through regulatory amendment,
what the term ``aggravation'' means in sections 3.306 and 3.310, and to
harmonize those definitions where possible.\1\ Thus, VA proposes
amending both sections to clarify that the increase in disability must
be permanent, not merely temporary or intermittent. The changes to
harmonize sections 3.306 and 3.310 reflect the principle that VA's
statutory and regulatory scheme should be read as a whole. Further, 38
U.S.C. 1110 and 1131 authorize VA to provide compensation for
``disability''; inherent in that conferred authority is VA's authority
to define what constitutes disability (and, it logically follows,
``increase in disability'' for purposes of aggravation). See, e.g.,
Wanner v. Principi, 370 F.3d 1124, 1131 (Fed. Cir. 2004) (courts
precluded from reviewing ``what should be considered a disability'');
Nat'l Org. of Veterans' Advocates v. Sec'y of Veterans Affairs, 330
F.3d 1345, 1351 (Fed. Cir. 2003) (``38 U.S.C. 501(a) authorizes the
Secretary to promulgate regulations with respect to the nature and
extent of proof and evidence necessary to establish entitlement to
veterans benefits.''). The reason that VA proposes to require an
enduring, permanent increase in disability to establish service
connection based on aggravation is that temporary or intermittent
symptoms are difficult to rate (and thus prone to confusion and error)
as well as time-consuming to identify and rate (resulting in delayed
processing times).
---------------------------------------------------------------------------
\1\ VA does not intend to alter the structure of 38 CFR 3.306(b)
through (c) or revise the standard for demonstrating aggravation of
a preexisting injury or disease for combat and prisoner-of-war
veterans under section 3.306(b).
---------------------------------------------------------------------------
VA's proposed changes to section 3.306 are in line with
longstanding court precedent. See, e.g., Davis, 276 F.3d at 1346-47
(holding that ``evidence of temporary flare-ups symptomatic to an
underlying preexisting condition, alone, is not sufficient for a non-
combat veteran to show increased disability under 38 U.S.C. [ ] 1153
unless the underlying condition is worsened''). VA's proposed changes
to section 3.310 respond to a growing divergence between the two
``aggravation'' standards in recent Veterans Court case law based on
imprecise regulatory language. VA did not intend this divergence, and
its proposed revisions to realign the two standards of ``aggravation''
will supersede the effect of the Veterans Court's recent holding in
Ward v. Wilkie based on a change in the underlying regulatory text.
When VA last amended section 3.310, it did so to implement the
Veterans Court's fundamental holding in Allen v. Brown that service
connection may be awarded based on aggravation when a veteran's
nonservice-connected disability is worsened beyond its natural
progression due to a service-connected disability. The regulation was
amended to allow a veteran entitlement to compensation for the degree
of disability (but only that degree) over and above the degree of
disability existing prior to aggravation. Prior to the Allen holding,
section 3.310 only addressed secondary service connection. To conform
section 3.310 to the Allen decision, VA amended it by moving paragraph
(b) to (c) and creating a new paragraph (b). The new paragraph (b),
represented by the current text, addressed compensation for the
incremental increase in severity of a nonservice-connected disability
worsened by a service-connected condition (i.e., post-service
aggravation). See 62 FR 30,547 (Jun. 4, 1997) (notice of proposed
rulemaking); 71 FR 52,744 (Sept. 7, 2006) (final rule). At that time,
VA did not consider or address the distinction between temporary flare-
ups versus enduring worsening. To the extent that litigation has arisen
over the boundaries of ``aggravation'' as defined in section 3.310, VA
intends to clarify those boundaries now.
Currently, VA adjudicators must consult case law to understand how
``aggravation'' is defined. By amending 38 CFR 3.306 and 3.310, VA
would enable its adjudicators--as well as all affected parties--to
clearly identify and apply a singular definition of ``aggravation'' in
both regulations.
Finally, VA also proposes amendments to sections 3.306 and 3.310 to
use consistent terminology, as well as to make minor, technical changes
to section 3.310.
III. A Singular Definition
In light of the uncertainty that exists as to the meaning of
``aggravation'' in 38 CFR 3.306 and 3.310 and the unintended divergence
in meaning of the regulatory terms as interpreted in case law resulting
from imprecise wording in these regulations, VA is proposing to amend
these regulations to explicitly confirm a singular definition of
``aggravation.'' This singular definition would apply to all claims for
service connection, regardless of whether the aggravated condition was
a preexisting condition that worsened during service or a nonservice-
connected condition that worsened due to a service-connected condition.
[[Page 56191]]
A. Changes to 38 CFR 3.306(a)
VA proposes to incorporate the longstanding, case law definition of
``aggravation'' from Davis v. Principi into 38 CFR 3.306(a). This
revision would remove any ambiguity in the existing text and would
define what constitutes an ``increase in disability''; the definition
would include the requirement of ``permanent worsening.'' Accordingly,
VA proposes to amend paragraph 3.306(a) by adding the following two
sentences: ``Except as otherwise noted in paragraph (b)(2) in this
section, service connection will only be warranted if the increase in
disability is permanent and not attributable to the natural progress of
the injury or disease. Temporary or intermittent flare-ups do not
constitute an increase in disability unless the underlying injury or
disease shows permanent worsening.''
B. Changes to 38 CFR 3.310(a)
VA proposes to change the introductory heading of 38 CFR 3.310(a)
from ``General'' to ``Secondary disabilities''. The intent behind this
change is to clarify the distinction between secondary service
connection of a disability that only arose post-service and was caused
by a service-connected disability, addressed in subsection (a), and
aggravation of a pre-existing disability by a service-connected
disability, addressed in subsection (b). Both scenarios are
``secondary'' service connection in the sense that VA is compensating
for the downstream consequence of a service-connected disability rather
than a disability that itself arose in service. Both scenarios
accordingly rely on VA's authority found in 38 U.S.C. 1110 and 1131 to
compensate disability that is causally related to service, as well as
VA's underlying rulemaking authority in 38 U.S.C. 501.
While both scenarios share this similar legal grounding, VA wishes
to highlight the distinction in order to clarify for rating personnel
that the concepts are distinct. When an entirely new disability is
caused by a service-connected disability, VA rates and compensates for
the entire disability. In the scenario where a pre-existing disability
is aggravated by a service-connected disability, VA rates and
compensates only for the extent of the aggravation.
VA also proposes minor technical corrections to 38 CFR 3.310(a)
that include grammatical corrections and use of consistent wording. For
example, the current regulation interchangeably uses the terms
``disability'' and ``condition''; VA is proposing to use only the term
``disability'' for consistency. No substantive change to the law of
secondary service connection in the non-aggravation context is
intended.
C. Changes to 38 CFR 3.310(b)
VA proposes to clarify the definition of ``aggravation'' in 38 CFR
3.310(b) to align it with the definition in 38 CFR 3.306(a), which
would change the underlying text relied on in the recent Ward v. Wilkie
decision. This revision would remove any ambiguity as to what
constitutes aggravation of a nonservice-connected condition by a
service-connected condition. For further clarity and organization, VA
proposes to revise paragraph 3.310(b) by dividing it into three
paragraphs. Paragraph 3.310(b)(1) would provide general guidance and
would define what constitutes an ``increase in disability''; this
definition would include the requirement of ``permanent worsening.''
paragraph 3.310(b)(2) would describe the requirement of a baseline
level of severity. This language is already present in the existing
regulation, and VA only proposes to add a title and nomenclature to
paragraph 3.310(b)(2). Lastly, paragraph 3.310(b)(3) would describe how
to determine the extent of aggravation by deducting the baseline level
of severity from the current level of severity. This language is
already present in the existing regulation, and VA only proposes to add
a title and nomenclature to paragraph 3.310(b)(3).
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.
The Office of Information and Regulatory Affairs has determined that
this rule is 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 the
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 proposed rule is not expected to be an Executive Order 13771
regulatory or deregulatory action because it is not expected to result
in more than de minimis costs. Details on the estimated costs of this
proposed rule can be found in the rule's economic analysis.
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 certification is based on the fact that no small
entities or businesses receive or determine entitlement to VA
disability compensation. 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 numbers and titles for
the programs affected by this document are 64.102, Compensation for
Service Connected Deaths for Veterans' Dependents; and 64.103, Veterans
Compensation for Service Connected Disability; 64.110.
List of Subjects in 38 CFR Part 3
Administrative practice and procedure, Claims, Disability benefits,
Veterans.
Signing Authority
The Secretary of Veterans Affairs approved this document and
authorized the undersigned to sign and submit the
[[Page 56192]]
document to the Office of the Federal Register for publication
electronically as an official document of the Department of Veterans
Affairs. Pamela Powers, Chief of Staff, Performing the Delegable Duties
of the Deputy Secretary, Department of Veterans Affairs, approved this
document on April 14, 2020, for publication.
Jeffrey M. Martin,
Assistant Director, Office of Regulation Policy & Management, Office of
the Secretary, Department of Veterans Affairs.
For the reasons stated in the preamble, the Department of Veterans
Affairs proposes to amend 38 CFR part 3 as set forth below:
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. Revise Sec. 3.306 paragraph (a) to read as follows:
Sec. 3.306 Aggravation of preservice disability.
(a) General. A preexisting injury or disease will be considered to
have been aggravated by active military, naval, or air service when
there is an increase in disability during such service. Except as
otherwise noted in paragraph (b)(2) in this section, service connection
will only be warranted if the increase in disability is permanent and
not attributable to the natural progress of the injury or disease.
Temporary or intermittent flare-ups do not constitute an increase in
disability unless the underlying injury or disease shows permanent
worsening.
(Authority: 38 U.S.C. 1110, 1131, and 1153)
* * * * *
0
3. Revise Sec. 3.310 paragraphs (a) and (b) to read as follows:
Sec. 3.310 Disabilities that are proximately due to, or aggravated
by, service-connected disease or injury.
(a) Secondary disabilities. Except as provided in Sec. 3.300(c), a
disability that is proximately due to or the result of a service-
connected disability shall be service connected. When service
connection is established for a secondary disability, it shall be
considered a part of the original disability.
(b)(1) Aggravation of Nonservice-Connected Disabilities. An
increase in disability of a nonservice-connected injury or disease that
is proximately due to or the result of a service-connected disability
will be service connected on the basis of aggravation. Service
connection will only be warranted if the increase in disability is
permanent and not attributable to the natural progress of the injury or
disease. Temporary or intermittent flare-ups do not constitute an
increase in disability unless the underlying injury or disease shows
permanent worsening.
(2) Baseline Level of Severity. VA will not concede that a
nonservice-connected injury or disease was aggravated by a service-
connected injury or disease unless the baseline level of severity of
the nonservice-connected injury or disease is established by medical
evidence created before the onset of aggravation or by the earliest
medical evidence created at any time between the onset of aggravation
and the receipt of medical evidence establishing the current level of
severity of the nonservice connected injury or disease.
(3) Extent of Aggravation. The rating activity will determine the
baseline and current levels of severity under the Schedule for Rating
Disabilities (38 CFR part 4) and determine the extent of aggravation by
deducting the baseline level of severity, as well as any increase in
severity due to the natural progress of the injury or disease, from the
current level.
(Authority: 38 U.S.C. 501, 1110 and 1131)
* * * * *
[FR Doc. 2020-17672 Filed 9-10-20; 8:45 am]
BILLING CODE 8320-01-P