[Federal Register Volume 88, Number 50 (Wednesday, March 15, 2023)]
[Rules and Regulations]
[Pages 15907-15915]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-05069]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 9

RIN 2900-AQ53


Servicemembers' Group Life Insurance Traumatic Injury Protection 
Program

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This final rule adopts, with changes, a proposed rule amending 
the Department of Veterans Affairs (VA) Servicemembers' Group Life 
Insurance Traumatic Injury Protection (TSGLI) program regulations. This 
final rule allows nurse practitioners to sign a hospital or facility-
approved pass for a member to leave a hospital or treating facility as 
part of the member's treatment plan. This final rule also responds to 
comments received during a reopened 60-day comment period on the 
response to a petition for rulemaking and withdraws a proposed revision 
to the TSGLI schedule of losses for traumatic injuries from burns.

DATES: This rule is effective April 14, 2023.

FOR FURTHER INFORMATION CONTACT: Paul Weaver, Department of Veterans 
Affairs Insurance Service (310/290B), 5000 Wissahickon Avenue, 
Philadelphia, PA 19144, (215) 842-2000, ext. 4263. (This is not a toll-
free number.)

SUPPLEMENTARY INFORMATION: On August 19, 2020, VA published a proposed 
rule in the Federal Register, 85 FR 50,973, to amend its regulations 
governing the TSGLI program, and addressed and denied a petition for 
rulemaking submitted to VA on March 16, 2015, requesting that VA amend 
the TSGLI regulations to cover traumatic injuries due to illness and 
disease caused by explosive ordnance. VA provided a 60-day comment 
period, which ended on October 19, 2020. We received comments from 10 
individuals during this comment period. Overall, the comments supported 
our proposed rulemaking; however, several of the commenters made 
additional recommendations, which we address below.
    On March 23, 2021, we published a supplemental notice of proposed 
rulemaking (SNPRM), 86 FR 15,448, that provided a new opportunity for 
the public to submit comments pertaining to our proposal to deny the 
petition for rulemaking requesting that VA amend the TSGLI regulations 
to cover traumatic injuries due to illness and disease caused by 
explosive ordnance. We received three comments during the SNPRM comment 
period and address these comments in this final rulemaking. In 
addition, we explain VA is withdrawing the proposed amendment to the 
TSGLI burn standard that was published in the Federal Register in 
August 2020.

1. Definition of Therapeutic Trip

    We received one comment from the American Association of Nurse 
Practitioners, suggesting that VA amend the proposed definition of the 
term ``therapeutic trip'' in new 38 CFR 9.21(a)(11) to allow a nurse 
practitioner, as well as an attending physician, to sign a member's 
hospital or facility-approved pass to leave the hospital or facility as 
part of the member's treatment plan. The comment indicated that nurse 
practitioners have similar, full practice authority within VA medical 
facilities, and that these nurse practitioners will likely be the 
primary provider for members in settings such as hospitals and long-
term care facilities. The comment also stated that the group believed 
that this change would serve to ensure that members are able to receive 
approved passes for therapeutic trips without unnecessary delay. We 
agree and, therefore, are revising the proposed

[[Page 15908]]

definition of the term therapeutic pass so that nurse practitioners 
will have authority to endorse a member's pass to leave a hospital or 
other facility as part of the member's treatment plan.

2. Eligibility Requirements Regarding Causation

    One commenter stated that VA does not explain the standard we 
propose to determine whether an illness or disease caused a member's 
loss. They further stated the concept for using the standard is 
amorphous and highly subjective, and that medical opinions regarding 
the extent the illness or disease contributed to the member's loss 
could differ, making it very difficult to determine how much of a 
factor a pre-existing illness or disease could have been in 
contributing to the member's loss. TSGLI is modeled on commercial 
accidental death and dismemberment (AD&D) insurance coverage, and this 
coverage does not cover losses caused by illness or disease. 70 FR 
75,940, 75,942 (Dec. 22, 2005). We explained in the TSGLI interim final 
rulemaking published in 2005 that 38 U.S.C. 1980A(e)(4) and (5) 
obligate VA ``to manage the TSGLI program `on the basis of sound 
actuarial principles,' '' and that private AD&D coverage has proven to 
be actuarially sound over the long-term in the commercial insurance 
industry. Id. at 75,940. We also explained that limitations set forth 
in the TSGLI regulations follow insurance-industry standards and are 
based upon sound actuarial and financial principles that VA must 
utilize in administering TSGLI. Id. at 75,942. In addition, in our 
proposed rulemaking we stated that, in AD&D cases, courts have 
interpreted the phrase ``direct result of a traumatic injury and no 
other cause'' that 38 CFR 9.20(d)(2) uses, to mean that a loss is not 
covered if a preexisting condition or disease ``substantially 
contributed'' to the loss. 85 FR at 50,974. The proposed directive in 
38 CFR 9.20(d)(2) that a scheduled loss would not result directly from 
a traumatic injury and no other cause if a preexisting disease, 
illness, or condition substantially contributed to the loss is based on 
the courts' interpretation. Because we are obligated to administer 
TSGLI on the basis of sound actuarial and financial principles that 
have been adopted by commercial insurers, and commercial AD&D insurers 
utilize the same ``substantially contributed'' standard to evaluate 
whether illness or disease caused the loss, we are not making any 
change to proposed 38 CFR 9.20(d).

3. TSGLI Payment Range

    One commenter stated that the TSGLI payment schedule has not been 
addressed since 2005 and that the proposed rule should have adjusted 
the range of payment for TSGLI. When the TSGLI interim final rule was 
published in 2005, we explained that the TSGLI schedule follows the 
commercial AD&D model. We established the TSGLI payment range based on 
the AD&D policies that we reviewed. Since 2005, we have conducted a 
Year-One Review and a Year-Ten Review. See 73 FR 71,926 (Nov. 26, 
2008); 85 FR at 50,973; see also https://www.benefits.va.gov/INSURANCE/docs/TSGLI_YTR.pdf. As a result of these reviews, we have published 
rulemakings that have amended certain sections of the TSGLI schedule 
to: (1) increase from one to two years the period of time for a loss 
from a traumatic injury to occur (72 FR 10,362, 10,363 (Mar. 8, 2007)); 
(2) provide TSGLI benefits for genitourinary losses (76 FR 75,458 (Dec. 
2, 2011)); and (3) create a graduated, tiered standard for evaluating 
losses for reconstruction of limbs (85 FR at 50,981). Furthermore, 
after reviewing payment amounts during the Year-One and Year-Ten 
Reviews, we have found the current TSGLI benefit payouts to be larger 
than the payouts for many commercial AD&D policies. Further, Congress 
wanted VA to keep the TSGLI premium low to ease the financial stress 
for Servicemembers and their families and the current premium does not 
support additional payment amounts. See 151 Cong. Rec. S4095 (2005) 
(statement of Sen. Craig) (``To meet these needs, our amendment would 
create a traumatic insurance rider [that] would provide coverage for 
severely disabling conditions at a cost of approximately $1 a month . . 
. .''). Therefore, we will not make any change based on this comment.

4. TSGLI Appeals Process

    One commenter stated that the proposed rule should have addressed 
the TSGLI appeals process because it was applied inconsistently for 
different members serving in various branches of the uniformed 
services. As part of the TSGLI Year-Ten Review, VA met with TSGLI 
adjudicators from the uniformed services and reviewed the TSGLI appeals 
process for each branch. Based on these meetings, VA developed the 
procedures that we proposed in revised 38 CFR 9.20(h). We explained 
with regard to the proposed amendments to paragraph (h) that the 
uniformed services and members must follow the established procedural 
process that each respective branch has developed for hearing TSGLI 
claims. 85 FR at 50,976. In addition, new 38 CFR 9.20(h)(4) states that 
a member is not precluded from pursuing legal remedies under 38 U.S.C. 
1975 and 38 CFR 9.13 and can leave the TSGLI appeals process at any 
time and seek a different venue for their appeal. Because we have 
reviewed the TSGLI appeals process for the uniformed services and 
addressed it in the proposed rulemaking by making revisions to the 
process, we do not make any further changes based on this comment.

5. Two-Year Period To Suffer Loss From Traumatic Injury

    Two commenters stated that the two-year eligibility period to 
suffer a loss from a traumatic injury should be expanded. The 
commenters indicated that certain losses, such as traumatic brain 
injury (TBI), often do not become disabling medical conditions until 
longer than two years following a traumatic injury. One of the 
commenters suggested increasing the two-year period for a member to 
suffer a loss from a traumatic injury to two years from the date of 
diagnosis of the traumatic injury or date surgery is performed, 
whichever is later. VA is obligated to administer TSGLI according to 
the sound actuarial and financial practices of commercial AD&D 
insurers. When TSGLI was created in 2005, a one-year loss period was 
established because the one-year period reflected the longest loss 
period for an individual insured under a policy of commercial AD&D. In 
2007, we extended this one-year period to two years in response to 
concerns from the uniformed services that one year was not enough time 
for a member to decide whether to attempt to salvage a limb. This 
extension of an additional year to suffer a loss provides more 
extensive coverage than the coverage offered by most commercial AD&D 
insurers. Further extending the loss period risks undermining the 
actuarial soundness of TSGLI and would make it difficult for TSGLI 
adjudicators to determine if a nexus exists between a traumatic injury 
and a qualifying loss. Therefore, we do not make any change based on 
this comment.

6. Exposure to Burn Pits

    One commenter stated that the proposed rule language should be more 
inclusive of toxic exposures that occur from military-specific events, 
such as burn pits. We define a qualifying traumatic event for purposes 
of TSGLI in 38 CFR 9.20(b) as an application of external force; 
application of violence or chemical, biological, or radiological

[[Page 15909]]

weapons; accidental ingestion of a contaminated substance; exposure to 
low temperatures, excessive heat, or non-penetrating blast waves; or an 
animal or insect bite or insect sting. We define traumatic injury in 38 
CFR 9.20(c) to expressly exclude illnesses and diseases, unless the 
illness or disease was caused by a biological, chemical or radiological 
weapon, pyogenic infection, or accidental ingestion of a contaminated 
substance. For exposure to burn pit toxins to qualify as a traumatic 
event and for the resulting injury to qualify as a traumatic injury, 
the member would have to have been exposed to a burn pit that was 
burning nuclear, radiological, or chemical weapons. Exposure to 
nuclear, radiological, or chemical weapons causes an immediate harm to 
the member. As we explained in the TSGLI interim final rule in 2005, 
including immediate traumatic harm due to these unique hazards of 
military service is consistent with the purpose of TSGLI. 70 FR 75,940, 
75,941 (Dec. 22, 2005). Exposure to burn pits where conventional 
weapons or materials were burned would not cause such immediate 
traumatic harm so as to fall within the purpose of TSGLI. Therefore, we 
do not make a change based on this comment.

7. Petition for VA To Engage in TSGLI Rulemaking

    One comment was submitted by counsel representing a member who is 
appealing the uniformed services' denial of his TSGLI claim. In our 
proposed rulemaking we evaluated the commenter's petition for VA to 
engage in a TSGLI rulemaking that would add illness and disease to the 
TSGLI schedule if the illness or disease was caused by explosive 
ordnance. The commenter stated that VA did not explain why it did not 
grant the member's petition and why it adopted a two-year time period 
for a loss from a traumatic injury to occur. The comments also stated 
that losses from explosive ordnance such as stroke do occur within two 
years of members' exposure to explosive ordnance and VA's denial of the 
petition is arbitrary and capricious and violates the Administrative 
Procedure Act.
    In the proposed rulemaking, we explained that we were proposing to 
deny the petition for rulemaking because covering losses from illness 
or disease resulting from explosive ordnance would be inconsistent with 
the plain language of the authorizing statute and the purpose of TSGLI 
to cover injuries occurring immediately after a traumatic event as 
losses due to illness or disease do not result from immediate traumatic 
harm unless the harm is caused by nuclear, biological, or chemical 
weapons. 85 FR at 50,983. We included immediate traumatic harm caused 
by nuclear, biological, and chemical weapons as exceptions to the TSGLI 
illness and disease exclusion because these weapons are unique to the 
hazards of military service. Id. As we further explained in the 
proposed rulemaking, the legislative history of the TSGLI authorizing 
statute shows that Congress intended to provide TSGLI compensation for 
injuries, rather than diseases, that occur immediately after a 
traumatic event and that require prompt medical treatment. Id. Thus, we 
proposed to deny the commenter's petition to provide TSGLI coverage for 
physical illness or disease caused by TBI because losses from illness 
or disease caused by TBI may not immediately manifest but may manifest 
many years after the member's TBI. Id. Further, although the commenter 
noted that one of the medical studies cited by VA in the proposed rule 
found an average time of 543 days between a TBI patient's use of health 
care services and the onset of stroke, we identified other scientific 
reports suggesting a longer latent period before clinical presentation 
of adverse health effects such as meningioma and an increase in risk of 
brain tumors. Id. Additionally, we cited to a report that showed a 
delayed onset of symptoms of Parkinson Disease following TBI. Id.
    The commenter also stated that VA has not provided sufficient 
justification for adopting a two-year period for a loss to occur 
following a traumatic injury and that we have offered no actuarial or 
statistical data to support the denial of the petition for rulemaking. 
As stated previously, VA is obligated to manage TSGLI according to 
sound actuarial principles, and we have modeled TSGLI on commercial 
AD&D policies. The TSGLI two-year period to suffer a loss provides more 
extensive coverage than the coverage offered by most commercial AD&D 
insurers; further extending the loss period risks the financial health 
of TSGLI and would make it difficult for TSGLI adjudicators to 
determine if a nexus exists between a traumatic injury and a qualifying 
loss. Accordingly, we make no change based on this commenter's comments 
and deny the petition for rulemaking.

8. Comments Received During SNPRM Comment Period

    We received three additional comments in response to our 
supplemental notice of proposed rulemaking providing a new opportunity 
for the public to submit comments pertaining to our proposal to deny 
the petition for rulemaking described in the previous section. One 
commenter indicated that the types of illnesses and diseases that 
result from exposure to low-level blasts often are not diagnosed until 
as long as a decade later and should be covered under TSGLI. VA 
considers low-level blasts a traumatic event and calculates the two-
year period from the last documented blast. Any ``immediate'' losses, 
such as hospitalization or the inability to perform ADL from a TBI 
resulting from a low-level blast, are losses covered under TSGLI. 
Covering a disease or illness that occurs many years following a 
traumatic event would be contrary to Congressional intent that TSGLI 
provide benefits for losses from traumatic injuries that are suffered 
soon after a traumatic event. See 85 FR at 50,983. Therefore, we do not 
make a change based on this comment.
    VA received one comment from counsel representing the member 
appealing the uniformed services' denial of his TSGLI claim and who 
submitted the petition for rulemaking stating that our proposal to deny 
the petition to add illness and disease to the TSGLI schedule if the 
illness and disease was caused by explosive ordnance was arbitrary and 
capricious. The comment submitted was similar to a comment submitted 
during the prior notice and comment period. As stated previously, VA 
does not make any changes based on this comment because covering losses 
from illness or disease resulting from explosive ordnance would be 
inconsistent with commercial AD&D coverage after which Congress modeled 
TSGLI and the purpose of TSGLI to cover injuries occurring immediately 
after a traumatic event.
    We received another comment from a licensed physician and the 
author of a report to which we cited in our August 2020 Federal 
Register submission that proposed to deny the petitioner's request. The 
commenter stated that TBI from explosive ordnance follows a disease 
process and that losses from illness and disease caused by TBI that is 
caused by explosive ordnance should be covered under TSGLI. As we 
explained in the proposed rulemaking and in previous sections of this 
final rulemaking, the types of long-term illnesses and diseases 
associated with TBI do not cause the immediate type of harm against 
which TSGLI is designed to protect. Our research shows that, while 
several conditions, such as Alzheimer's Disease and dementia, have a 
positive association with TBI, these conditions do not immediately 
manifest,

[[Page 15910]]

and losses from these conditions usually do not occur until more than 
two years after TBI. Institute of Medicine of the National Academies, 
Gulf War and Health--Vol. 9: Long-Term Effects of Blast Exposures 
(2014), available at https://doi.org/10.17226/18253. We also identified 
a positive association between TBI and Parkinson's Disease, however the 
symptoms from Parkinson's Disease that would cause a member to suffer a 
loss do not appear within the two-year loss period, but usually appear 
as many as twenty years following a TBI. Id. Further, members who 
suffer immediate harm due to TBI caused by explosive ordnance and are 
hospitalized or suffer the loss of ADL are eligible for TSGLI payment 
if the loss occurs during the two-year period for TSGLI losses. 
Therefore, we do not make any changes based on this comment and deny 
the petition for rulemaking.

9. Withdrawal of Proposal To Amend TSGLI Burn Standard

    In our August 2020 proposed rulemaking, we indicated that we would 
revise the TSGLI burn standard to create a graduated, tiered standard 
based upon the varying levels of rehabilitation associated with 
differing types of burns and the extent of burns on the body. 85 FR at 
50,979-50,980. We received several comments during and after the 
comment period indicating that the proposed standard would not provide 
equity in payment based on the severity of the burn and the burn would 
be difficult to assess under the proposed standard because medical 
documentation of the precise location of burns is not always available. 
Therefore, we are withdrawing the proposed amendments to the TSGLI burn 
standard and restating current Sec.  9.20(e)(6)(xvii) and (f)(8) in new 
Sec.  9.21(c)(8).
    For the reasons discussed above, VA is adopting the proposed rule 
as a final rule with the above-noted changes.

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. 
The Office of Information and Regulatory Affairs has determined that 
this final rule is not a significant regulatory action under Executive 
Order 12866. The Regulatory Impact Analysis associated with this 
rulemaking can be found as a supporting document at 
www.regulations.gov.

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 generally be small business neutral as it 
applies only to members who are covered under TSGLI, and TSGLI is 
managed, processed, and conducted within VA and through Prudential 
Insurance Company of America, which is not considered to be a small 
business entity. Therefore, under 5 U.S.C. 605(b), the initial and 
final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 
604 do not apply.

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

    We note that in the proposed rule we did not identify any 
information collections. See 85 FR 50,983. However, we subsequently 
received guidance from the Office of Management and Budget (OMB) 
informing us that the TSGLI application and appeals forms covered in 
proposed Sec.  9.20 constitute information collections and are subject 
to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) requiring 
approval by OMB. Accordingly, we requested OMB approval for these 
forms, and OMB granted emergency clearance under 44 U.S.C. 3507(j) and 
assigned OMB control number 2900-0919. On December 29, 2022, we 
published a separate Federal Register notice outside of this rulemaking 
requesting public comment on the information collections. See 87 FR 
80262. If, based on public comments, OMB determines to modify its 
emergency clearance for these forms, VA would revise Sec.  9.20 
accordingly.

Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
the Office of Information and Regulatory Affairs designated this rule 
as not a major rule, as defined by 5 U.S.C. 804(2).

Assistance Listing

    The Assistance Listing number and title for the program affected by 
this document is 64.103, Life Insurance for Veterans.

List of Subjects in 38 CFR Part 9

    Life insurance, Military personnel, Veterans.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved this 
document on January 12, 2023, 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.

Luvenia Potts,
Regulations Development Coordinator, Office of Regulation Policy & 
Management, Office of General Counsel, Department of Veterans Affairs.

    For the reasons stated in the preamble, VA is amending 38 CFR part 
9 as set forth below:

PART 9--SERVICEMEMBERS' GROUP LIFE INSURANCE AND VETERANS' GROUP 
LIFE INSURANCE

0
1. The authority citation for part 9 continues to read as follows:

    Authority:  38 U.S.C. 501, 1965-1980A, unless otherwise noted.


0
2. Amend Sec.  9.20 by:
0
a. Revising paragraph (b)(1);
0
b. Redesignating paragraph (c)(3) as (c)(4) and adding a new paragraph 
(c)(3);
0
c. Revising paragraphs (d)(2) and (4), (e)(1), (e)(3)(i)(C) and (ii), 
and (e)(6);
0
c. Removing paragraph (f);
0
d. Redesignating paragraph (h) as paragraph (f) and revising newly 
redesignated paragraph (f);
0
e. Revising paragraph (g);
0
f. Redesignating paragraphs (i) through (k) as paragraphs (h) through 
(j) respectively and revising newly redesignated paragraphs (h) through 
(j).
    The revisions read as follows:


Sec.  9.20  Traumatic injury protection.

* * * * *
    (b) * * * (1) A traumatic event is damage to a living being 
occurring on or after October 7, 2001, caused by:
    (i) Application of an external force;
    (ii) Application of violence or chemical, biological, or 
radiological weapons;

[[Page 15911]]

    (iii) Accidental ingestion of a contaminated substance;
    (iv) Exposure to low environmental temperatures, excessive heat, or 
documented non-penetrating blast waves; or
    (v) An insect bite or sting or animal bite.
* * * * *
    (c) * * *
    (3) The term traumatic injury includes anaphylactic shock directly 
caused by an insect bite or sting or animal bite.
* * * * *
    (d) * * *
    (2) You must suffer a scheduled loss that results directly from a 
traumatic injury and from no other cause.
    (i) A scheduled loss does not result directly from a traumatic 
injury and from no other cause if a pre-existing illness, condition, or 
disease or a post-service injury substantially contributed to the loss.
    (ii) A scheduled loss results directly from a traumatic injury and 
no other cause if the loss is caused by a medical or surgical procedure 
used to treat the traumatic injury.
* * * * *
    (4) You must suffer a scheduled loss under Sec.  9.21(c) within two 
years of the traumatic injury.
    (i) If a loss with a required time period milestone begins but is 
not completed within two years of the traumatic injury, the loss would 
nonetheless qualify for TSGLI if the requisite time period of loss 
continues uninterrupted and concludes after the end of the two-year 
period.
    (ii) If a required time period for a loss is satisfied before the 
end of the two-year period and a member suffers another period of loss 
after expiration of the two-year time limit, the member is not entitled 
to TSGLI for this time period of loss.
* * * * *
    (e) * * * (1) The term ``scheduled loss'' means a condition listed 
in the schedule in Sec.  9.21(c) if directly caused by a traumatic 
injury and from no other cause. A scheduled loss is payable at the 
amount specified in the schedule.
* * * * *
    (3) * * *
    (i) * * *
    (C) Diagnostic procedures, preventive medical procedures such as 
inoculations, medical or surgical treatment for an illness or disease, 
or any complications arising from such procedures or treatment, unless 
the diagnostic procedure or medical or surgical treatment is necessary 
to treat a traumatic injury;
* * * * *
    (ii) Sustained while a member was committing an act that clearly 
violated a penal law classifying such an act as a felony.
* * * * *
    (6) Definitions. For purposes of this section and Sec.  9.21--
    (i) The term biological weapon means biological agents or 
microorganisms intended to kill, seriously injure, or incapacitate 
humans through their physiological effects.
    (ii) The term chemical weapon means chemical substances intended to 
kill, seriously injure, or incapacitate humans through their 
physiological effects.
    (iii) The term contaminated substance means food or water made 
unfit for consumption by humans because of the presence of chemicals, 
radioactive elements, bacteria, or organisms.
    (iv) The term external force means a sudden or violent impact from 
a source outside of the body that causes an unexpected impact and is 
independent of routine body motions such as twisting, lifting, bending, 
pushing, or pulling.
    (v) The term ingestion means to take into the gastrointestinal 
tract by means of the mouth.
    (vi) The term medical professional means a licensed practitioner of 
the healing arts acting within the scope of his or her practice, 
including, e.g., a licensed physician, optometrist, nurse practitioner, 
registered nurse, physician assistant, or audiologist.
    (vii) The term medically incapacitated means an individual who has 
been determined by a medical professional to be physically or mentally 
impaired by physical disability, mental illness, mental deficiency, 
advanced age, chronic use of drugs or alcohol, or other causes that 
prevent sufficient understanding or capacity to manage his or her own 
affairs competently.
    (viii) The term pyogenic infection means a pus-producing infection.
    (ix) The term radiological weapon means radioactive materials or 
radiation-producing devices intended to kill, seriously injure, or 
incapacitate humans through their physiological effects.
    (f) How does a member make a claim for traumatic injury protection 
benefits? (1)(i) A member who believes he or she qualifies for 
traumatic injury protection benefits must complete and sign Part A of 
the TSGLI Benefits Form and submit evidence substantiating the member's 
traumatic injury and resulting loss. A medical professional must 
complete and sign Part B of the Application for TSGLI Benefits Form.
    (ii) If a medical professional certifies in Part B of the 
Application for TSGLI Benefits Form that a member is unable to sign 
Part A of the Form because the member is medically incapacitated, the 
Form must be signed by one of the following: The member's guardian; if 
none, the member's agent or attorney acting under a valid Power of 
Attorney; if none, the member's military trustee.
    (iii) If a member suffered a scheduled loss as a direct result of 
the traumatic injury, survived seven full days from the date of the 
traumatic event, and then died before the maximum benefit for which the 
service member qualifies is paid, the beneficiary or beneficiaries of 
the member's Servicemembers' Group Life Insurance policy should 
complete an Application for TSGLI Benefits Form.
    (2) If a member seeks traumatic injury protection benefits for a 
scheduled loss occurring after submission of a completed Application 
for TSGLI Benefits Form for a different scheduled loss, the member must 
submit a completed Application for TSGLI Benefits Form for the new 
scheduled loss and for each scheduled loss that occurs thereafter and 
for each increment of a scheduled loss that occurs thereafter. For 
example, if a member seeks traumatic injury protection benefits for a 
scheduled loss due to coma from traumatic injury and/or the inability 
to carry out activities of daily living due to traumatic brain injury 
(Sec.  9.21(c)(17)), or the inability to carry out activities of daily 
living due to loss directly resulting from a traumatic injury other 
than an injury to the brain (Sec.  9.21(c)(20)), a completed 
Application for TSGLI Benefits Form must be submitted for each 
increment of time for which TSGLI is payable. Also, for example, if a 
member suffers a scheduled loss due to a coma, a completed Application 
for TSGLI Benefits Form should be filed after the 15th consecutive day 
that the member is in the coma, for which $25,000 is payable. If the 
member remains in a coma for another 15 days, another completed 
Application for TSGLI Benefits Form should be submitted and another 
$25,000 will be paid.
    (g) How will the uniformed service decide a TSGLI claim? (1) Each 
uniformed service will certify its own members for traumatic injury 
protection benefits based upon section 1032 of Public Law 109-13, 
section 501 of Public Law 109-233, and this section. The uniformed 
service will certify whether a member was insured under Servicemembers' 
Group Life Insurance at the time of the traumatic injury and whether 
the member sustained a

[[Page 15912]]

qualifying traumatic injury and qualifying loss.
    (2) The uniformed service office may request additional evidence 
from the member if the record does not contain sufficient evidence to 
decide the member's claim.
    (3) The uniformed service office shall consider all medical and lay 
evidence of record, including all evidence provided by the member, and 
determine its probative value. When there is an approximate balance of 
positive and negative evidence regarding any issue material to the 
determination of TSGLI benefits, the uniformed service shall give the 
benefit of the doubt to the member.
    (4) Notice of a decision regarding a member's eligibility for 
traumatic injury protection benefits will include an explanation of the 
procedure for obtaining review of the decision, and all negative 
decisions shall include a statement of the basis for the decision and a 
summary of the evidence considered.
    (h) How does a member or beneficiary appeal an adverse eligibility 
determination? (1) Each uniformed service has a three-tiered appeal 
process. The first tier of appeal is called a reconsideration, followed 
by a second-level appeal and then a third-level appeal. A member, 
beneficiary, or other person eligible to submit a claim under paragraph 
(f)(1)(ii) or (iii) may submit an appeal using the appeal process of 
the uniformed service that issued the original decision.
    (i) Reconsideration. (A) Reconsideration of an eligibility 
determination, such as whether the loss occurred within 730 days of the 
traumatic injury, whether the member was insured under Servicemembers' 
Group Life Insurance when the traumatic injury was sustained, or 
whether the injury was self-inflicted or whether a loss of hearing was 
total and permanent, is initiated by filing, with the office of the 
uniformed service identified in the eligibility decision within one 
year of the date of a denial of eligibility, a written notice of appeal 
that identifies the issues for which reconsideration is sought.
    (B) The uniformed service TSGLI office will review the claim, 
including evidence submitted with the notice of appeal by or on behalf 
of the member that was not previously part of the record before the 
uniformed service, and issue a decision on the claim.
    (ii) Second-level appeal. (A) A second-level appeal of the 
reconsideration decision is initiated by filing, with the second-level 
appeal office of the uniformed service within one year of the date of 
the reconsideration decision, a written notice of appeal that 
identifies the issues being appealed.
    (B) The uniformed service second-level appeal office will review 
the claim, including evidence submitted with the notice of appeal by or 
on behalf of the member that was not previously part of the record 
before the uniformed service, and issue a decision on the claim.
    (iii) Third-level appeal. (A) A third-level review of the second-
level uniformed service appeal office is initiated by filing, with the 
third-level appeal office of the uniformed service within one year of 
the date of the decision by the second-level appeal office of the 
uniformed service, a written notice of appeal that identifies the 
issues being appealed.
    (B) The uniformed service third-level appeal office will review the 
claim, including evidence submitted with the notice of appeal by or on 
behalf of the member that was not previously part of the record before 
the uniformed service, and issue a decision on the claim.
    (2) If a timely notice of appeal seeking reconsideration of the 
initial decision by the uniformed service or seeking review of the 
decision by the second-level uniformed service appeal office is not 
filed, the initial decision by the uniformed service or the decision by 
the second-level uniformed service appeal office, respectively, shall 
become final, and the claim will not thereafter be readjudicated or 
allowed except as provided in paragraph (h)(3).
    (3) New and material evidence. (i) If a member, beneficiary, or 
other person eligible to submit a claim under paragraph (f)(1)(ii) or 
(iii) submits new and material evidence with respect to a claim that 
has been finally disallowed as provided in paragraph (h)(2), the 
uniformed service office will consider the evidence, determine its 
probative value, and readjudicate the claim. New and material evidence 
is evidence that was not previously part of the record before the 
uniformed service, is not cumulative or redundant of evidence of record 
at the time of the prior decision and is likely to have a substantial 
effect on the outcome.
    (ii) A decision finding that new and material evidence was not 
submitted may be appealed in accordance with paragraph (h)(1).
    (4) Nothing in this section precludes a member from pursuing legal 
remedies under 38 U.S.C. 1975 and 38 CFR 9.13. However, if a member 
files suit in U.S. district court after an adverse initial decision on 
a TSGLI claim by a uniformed service, the member may not file an appeal 
pursuant to paragraph (h)(1) if the lawsuit is pending before a U.S. 
district court, a U.S. court of appeals, or the U.S. Supreme Court or 
the time for appeal or filing a petition for a writ of certiorari has 
not expired. If a member files suit in U.S. district court after filing 
an appeal pursuant to paragraph (h)(1), the appeal will be stayed if 
the lawsuit is pending before a U.S. district court, a U.S. court of 
appeals, or the U.S. Supreme Court or the time for appeal or filing a 
petition for a writ of certiorari has not expired.
    (i) Who will be paid the traumatic injury protection benefit? The 
injured member who suffered a scheduled loss will be paid the traumatic 
injury protection benefit in accordance with 38 U.S.C. 1980A except 
under the following circumstances:
    (A) If a member has been determined by a medical professional, in 
Part B of the Application for TSGLI Benefits Form, to be medically 
incapacitated, the member's guardian or, or if there is no guardian, 
the member's agent or attorney acting under a valid Power of Attorney 
will be paid the benefit on behalf of the member.
    (B) If no guardian, agent, or attorney is authorized to act as the 
member's legal representative, a military trustee who has been 
appointed under the authority of 37 U.S.C. 602 will be paid the benefit 
on behalf of the member. The military trustee will report the receipt 
of the traumatic injury benefit payment and any disbursements from that 
payment to the Department of Defense.
    (C) If a member dies before payment is made, the beneficiary or 
beneficiaries who will be paid the benefit will be determined in 
accordance with 38 U.S.C. 1970(a).
    (j) The Traumatic Servicemembers' Group Life Insurance program will 
be administered in accordance with this rule, except to the extent that 
any regulatory provision is inconsistent with subsequently enacted 
applicable law.
    (Approved by the Office of Management and Budget under control 
number 2900-0919.)


Sec. Sec.  9.21 and 9.22  [Redesignated]

0
3. Redesignate Sec. Sec.  9.21 and 9.22 as Sec. Sec.  9.22 and 9.23.

0
4. Add new Sec.  9.21 to read as follows:


Sec.  9.21  Schedule of Losses.

    (a) Definitions. For purposes of the Schedule of Losses in 
paragraph (c)--
    (1) The term accommodating equipment means tools or supplies that 
enable a member to perform an activity of daily living without the 
assistance of another person, including, but not limited to, a 
wheelchair; walker or cane;

[[Page 15913]]

reminder applications; Velcro clothing or slip-on shoes; grabber or 
reach extender; raised toilet seat; wash basin; shower chair; or shower 
or tub modifications such as wheelchair access or no-step access, grab-
bar or handle.
    (2) The term adaptive behavior means compensating skills that allow 
a member to perform an activity of daily living without the assistance 
of another person.
    (3) The term amputation means the severance or removal of a limb or 
genital organ or part of a limb or genital organ resulting from trauma 
or surgery. With regard to limbs, an amputation above a joint means a 
severance or removal that is closer to the body than the specified 
joint is.
    (4) The term assistance from another person means that a member, 
even while using accommodating equipment or adaptive behavior, is 
nonetheless unable to perform an activity of daily living unless 
another person physically supports the member, is needed to be within 
arm's reach of the member to provide assistance because the member's 
ability fluctuates, or provides oral instructions to the member while 
the member attempts to perform the activity of daily living.
    (5) The term avulsion means a forcible detachment or tearing of 
bone and/or tissue due to a penetrating or crush injury.
    (6) The term consecutive means to follow in uninterrupted 
succession.
    (7) The term discontinuity defect means the absence of bone and/or 
tissue from its normal bodily location, which interrupts the physical 
consistency of the face and impacts at least one of the following 
functions: mastication, swallowing, vision, speech, smell, or taste.
    (8) The term hospitalization means admission to a ``hospital'' as 
defined in 42 U.S.C. 1395x(e) or ``skilled nursing facility'' as 
defined in 42 U.S.C. 1395i-3(a).
    (9) The term inability to carry out activities of daily living 
means the inability to perform at least two of the six following 
functions without assistance from another person, even while using 
accommodating equipment or adaptive behavior, as documented by a 
medical professional.
    (i) Bathing means washing, while in a bathtub or shower or using a 
sponge bath, at least three of the six following regions of the body in 
its entirety: Head and neck, back, front torso, pelvis (including the 
buttocks), arms, or legs.
    (ii) Continence means complete control of bowel and bladder 
functions or management of a catheter or colostomy bag, if present.
    (iii) Dressing means obtaining clothes and shoes from a closet or 
drawers and putting on the clothing and shoes, excluding tying 
shoelaces or use of belts, buttons, or zippers.
    (iv) Eating means moving food from a plate to the mouth or 
receiving nutrition via a feeding tube or intravenously but does not 
mean preparing or cutting food or obtaining liquid nourishment through 
a straw or cup.
    (v) Toileting means getting on and off the toilet; taking clothes 
off before toileting or putting clothes on after toileting; cleaning 
organs of excretion after toileting; or using a bedpan or urinal.
    (vi) Transferring means moving in and out of a bed or chair.
    (10) The term permanent means clinically stable and reasonably 
certain to continue throughout the lifetime of the member.
    (11) The term therapeutic trip means an approved pass, by the 
member's attending physician or nurse practitioner, to leave a hospital 
as defined in 42 U.S.C. 1395x(e) or ``skilled nursing facility'' as 
defined in 42 U.S.C. 1395i-3(a), accompanied or unaccompanied by 
hospital or facility staff, as part of a member's treatment plan and 
with which the member is able to return without having to be readmitted 
to the hospital or facility.
    (b)(1) For losses listed in paragraphs (c)(1) through (19) of this 
section--
    (i) Except where noted otherwise, multiple losses resulting from a 
single traumatic event may be combined for purposes of a single 
payment.
    (ii) The total payment amount may not exceed $100,000 for losses 
resulting from a single traumatic event.
    (2) For losses listed in paragraphs (c)(20) and (21) of this 
section--
    (i) Payments may not be made in addition to payments for losses 
under paragraphs (c)(1) through (19); instead, the higher amount will 
be paid.
    (ii) The total payment amount may not exceed $100,000 for losses 
resulting from a single traumatic event.
    (3) Required period of consecutive days of loss. For losses in 
paragraphs (c)(17) through (18) and (20) through (21)--
    (i) A period of consecutive days of loss that is interrupted by a 
day or more during which the criteria for the scheduled loss are not 
satisfied will not be added together with a subsequent period of 
consecutive days of loss. The counting of consecutive days starts over 
at the end of any period in which the criteria for a loss are not 
satisfied.
    (ii) A required period of consecutive days will be satisfied if a 
loss begins within two years of a traumatic injury and continues 
without interruption after the end of the two-year period. A subsequent 
period of consecutive days of a scheduled loss will be satisfied if it 
follows uninterrupted immediately after an initial period of 
consecutive days of loss that ended after expiration of the two-year 
period.
    (c) Schedule of Losses. (1) Total and permanent loss of sight is:
    (i) Visual acuity in the eye of 20/200 or less/worse with 
corrective lenses lasting at least 120 days;
    (ii) Visual acuity in the eye of greater/better than 20/200 with 
corrective lenses and a visual field of 20 degrees of less lasting at 
least 120 days; or
    (iii) Anatomical loss of the eye.
    (iv) The amount payable for the loss of each eye is $50,000.
    (2) Total and permanent loss of hearing is:
    (i) Average hearing threshold sensitivity for air conduction of at 
least 80 decibels, based on hearing acuity measured at 500, 1,000, and 
2,000 Hertz via pure tone audiometry by air conduction, without 
amplification device.
    (ii) The amount payable for loss of one ear is $25,000. The amount 
payable for the loss of both ears is $100,000.
    (3) Total and permanent loss of speech is:
    (i) Organic loss of speech or the ability to express oneself, both 
by voice and whisper, through normal organs for speech, notwithstanding 
the use of an artificial appliance to simulate speech.
    (ii) The amount payable for the loss of speech is $50,000.
    (4) Quadriplegia is:
    (i) Total and permanent loss of voluntary movement of all four 
limbs resulting from damage to the spinal cord, associated nerves, or 
brain.
    (ii) The amount payable for quadriplegia is $100,000.
    (5) Hemiplegia is:
    (i) Total and permanent loss of voluntary movement of the upper and 
lower limbs on one side of the body from damage to the spinal cord, 
associated nerves, or brain.
    (ii) The amount payable for hemiplegia is $100,000.
    (6) Paraplegia is:
    (i) Total and permanent loss of voluntary movement of both lower 
limbs resulting from damage to the spinal cord, associated nerves, or 
brain.
    (ii) The amount payable for paraplegia is $100,000.
    (7) Uniplegia is:
    (i) Total and permanent loss of voluntary movement of one limb 
resulting from damage to the spinal cord, associated nerves, or brain.
    (ii) The amount payable for the loss of each limb is $50,000.

[[Page 15914]]

    (iii) Payment for uniplegia of arm cannot be combined with loss 9 
or 10 for the same arm. The higher payment for uniplegia or loss 14 
will be made for the same arm. Payment for uniplegia of leg cannot be 
combined with loss 11 or 12 for the same leg. The higher payment for 
uniplegia or loss 13 will be made for the same leg. The higher payment 
for uniplegia or loss 15 will be made for the same leg.
    (8) Burns is: (i) 2nd degree (partial thickness) or worse burns 
covering at least 20 percent of the body, including the face and head, 
or 20 percent of the face alone. Percentage of the body burned may be 
measured using the Rule of Nines or any means generally accepted within 
the medical profession.
    (ii) The amount payable for burns is $100,000.
    (9) Amputation of a hand at or above the wrist: (i) The amount 
payable for the loss of each hand is $50,000.
    (ii) Payment for amputation of hand cannot be combined with payment 
for loss 7 or 10 for the same hand. The higher payment for amputation 
of hand or loss 14 will be made for the same hand.
    (10) Amputation at or above the metacarpophalangeal joint(s) of 
either the thumb or the other 4 fingers on 1 hand: (i) The amount 
payable for the loss of each hand is $50,000.
    (ii) Payment for amputation of 4 fingers on 1 hand or thumb alone 
cannot be combined with payment for loss 7 or 9 for the same hand. The 
higher payment for amputation of 4 fingers on 1 hand or thumb alone or 
loss 14 will be made for the same hand. Payment for loss of the thumb 
cannot be made in addition to payment for loss of the other 4 fingers 
for the same hand.
    (11) Amputation of a foot at or above the ankle: (i) The amount 
payable for the loss of each foot is $50,000.
    (ii) Payment for amputation of foot cannot be combined with loss 7 
or 12 for the same foot. The higher payment for amputation of foot or 
Loss 13 will be made for the same foot. The higher payment for 
amputation of foot or Loss 15 will be made for the same foot.
    (12) Amputation at or above the metatarsophalangeal joints of all 
toes on 1 foot: (i) The amount payable for the loss of each foot is 
$50,000.
    (ii) Payment for amputation of all toes including the big toe on 1 
foot cannot be combined with loss 7 or 11 for the same foot. The higher 
payment for amputation of all toes including the big toe on 1 foot or 
loss 13 will be made for the same foot. The higher payment for 
amputation of all toes including the big toe on 1 foot or loss 15 will 
be made for the same foot.
    (13) Amputation at or above the metatarsophalangeal joint(s) of 
either the big toe or the other 4 toes on 1 foot: (i) The amount 
payable for the loss of each foot is $25,000.
    (ii) The higher payment for amputation of big toe only, or other 4 
toes on 1 foot, or loss 7 will be made for the same foot. The higher 
payment for amputation of big toe only, or other 4 toes on 1 foot, or 
loss 11 will be made for the same foot. The higher payment for 
amputation of big toe only, or other 4 toes on 1 foot, or loss 12 will 
be made for the same foot. The higher payment for amputation of big toe 
only, or other 4 toes on 1 foot, or loss 15 will be made for the same 
foot.
    (14) Limb reconstruction of arm (for each arm): (i) A surgeon must 
certify that a member had surgery to treat at least one of the 
following injuries to a limb:
    (A) Bony injury requiring bone grafting to re-establish stability 
and enable mobility of the limb;
    (B) Soft tissue defect requiring grafting/flap reconstruction to 
reestablish stability;
    (C) Vascular injury requiring vascular reconstruction to restore 
blood flow and support bone and soft tissue regeneration; or
    (D) Nerve injury requiring nerve reconstruction to allow for motor 
and sensory restoration and muscle re-enervation.
    (ii) The amount payable for losses involving 1 of the 4 listed 
surgeries is $25,000. The amount payable for losses involving 2 or more 
of the 4 listed surgeries is $50,000.
    (iii) The higher payment for limb reconstruction of arm or loss 7 
will be made for the same arm. The higher payment for limb 
reconstruction of arm or loss 9 will be made for the same arm. The 
higher payment for limb reconstruction of arm or loss 10 will be made 
for the same arm.
    (15) Limb reconstruction of leg (for each leg): (i) A surgeon must 
certify that a member had at least one of the following injuries to a 
limb requiring the identified surgery for the same limb:
    (A) Bony injury requiring bone grafting to re-establish stability 
and enable mobility of the limb;
    (B) Soft tissue defect requiring grafting/flap reconstruction to 
reestablish stability;
    (C) Vascular injury requiring vascular reconstruction to restore 
blood flow and support bone and soft tissue regeneration; or
    (D) Nerve injury requiring nerve reconstruction to allow for motor 
and sensory restoration and muscle re-enervation.
    (ii) The amount payable for losses involving 1 of the 4 listed 
surgeries is $25,000. The amount payable for losses involving 2 or more 
of the 4 listed surgeries is $50,000.
    (iii) The higher payment for limb reconstruction of leg or loss 7 
will be made for the same leg. The higher payment for limb 
reconstruction of leg or loss 11 will be made for the same leg. The 
higher payment for limb reconstruction of leg or loss 12 will be made 
for the same leg. The higher payment for limb reconstruction of leg or 
loss 13 will be made for the same leg.
    (16) Facial reconstruction: (i) A surgeon must certify that a 
member had surgery to correct a traumatic avulsion of the face or jaw 
that caused a discontinuity defect to one or more of the following 
facial areas:
    (A) Surgery to correct discontinuity loss involving bone loss of 
the upper or lower jaw--the amount payable for this loss is $75,000;
    (B) Surgery to correct discontinuity loss involving cartilage or 
tissue loss of 50% or more of the cartilaginous nose--the amount 
payable for this loss is $50,000;
    (C) Surgery to correct discontinuity loss involving tissue loss of 
50% or more of the upper or lower lip--the amount payable for loss of 
one lip is $50,000, and the amount payable for loss of both lips is 
$75,000;
    (D) Surgery to correct discontinuity loss involving bone loss of 
30% or more of the periorbita--the amount payable for loss of each eye 
is $25,000;
    (E) Surgery to correct discontinuity loss involving loss of bone or 
tissue of 50% or more of any of the following facial subunits: 
Forehead, temple, zygomatic, mandibular, infraorbital, or chin--the 
amount payable for each facial subunit is $25,000.
    (ii) Losses due to facial reconstruction may be combined with each 
other, but the maximum benefit for facial reconstruction may not exceed 
$75,000.
    (iii) Any injury or combination of losses under facial 
reconstruction may be combined with other losses in Sec.  9.21(c)(1)-
(19) and treated as one loss, provided that all losses are the result 
of a single traumatic event. However, the total payment amount may not 
exceed $100,000.
    (iv) Bone grafts for teeth implants alone do not meet the loss 
standard for facial reconstruction from jaw surgery.
    (17) Coma (8 or less on Glasgow Coma Scale) AND/OR Traumatic Brain 
Injury resulting in inability to perform at least 2 activities of daily 
living (ADL): (i) The amount payable at the 15th consecutive day of ADL 
loss is $25,000.

[[Page 15915]]

    (ii) The amount payable at the 30th consecutive day of ADL loss is 
an additional $25,000.
    (iii) The amount payable at the 60th consecutive day of ADL loss is 
an additional $25,000.
    (iv) The amount payable at the 90th consecutive day of ADL loss is 
an additional $25,000.
    (v) Duration of coma and inability to perform ADLs include date of 
onset of coma or inability to perform ADLs and the first date on which 
member is no longer in a coma or is able to perform ADLs.
    (18) Hospitalization due to traumatic brain injury: (i) The amount 
payable at the 15th consecutive day of hospitalization is $25,000.
    (ii) Payment for hospitalization may only replace the first ADL 
milestone in loss 17. Payment will be made for 15-day hospitalization, 
coma, or the first ADL milestone, whichever occurs earlier. Once 
payment has been made for the first payment milestone in loss 17 for 
coma or ADL, there are no additional payments for subsequent 15-day 
hospitalization due to the same traumatic injury. To receive an 
additional ADL payment amount under loss 17 after payment for 
hospitalization in the first payment milestone, the member must reach 
the next payment milestones of 30, 60, or 90 consecutive days.
    (iii) Duration of hospitalization includes the dates on which 
member is transported from the injury site to a hospital as defined in 
42 U.S.C. 1395x(e) or skilled nursing facility as defined in 42 U.S.C. 
1395i-3(a), admitted to the hospital or facility, transferred between a 
hospital or facility, leaves the hospital or facility for a therapeutic 
trip, and discharged from the hospital or facility.
    (iv) In cases where a member is hospitalized for 15 consecutive 
days for a diagnostic assessment for a mental illness and/or brain or 
neurologic disorder, and the assessment determines the member has a 
mental illness or brain or neurologic disorder, and not TBI, this loss 
is not payable because the loss was due to illness or disease and is 
excluded from payment. If a member is hospitalized for 15 consecutive 
days for a diagnostic assessment to determine whether the member has 
TBI and is diagnosed with TBI, TBI and PTSD, or PTSD and not TBI, the 
loss is payable for $25,000. If a member is hospitalized for 15 
consecutive days for a diagnostic assessment to determine whether the 
member has PTSD and is diagnosed with TBI or TBI and PTSD, the loss is 
payable for $25,000.
    (19) Genitourinary losses: (i) Amputation of the glans penis or any 
portion of the shaft of the penis above glans penis (i.e., closer to 
the body) or damage to the glans penis or shaft of the penis that 
requires reconstructive surgery--the amount payable for this loss is 
$50,000.
    (ii) Permanent damage to the glans penis or shaft of the penis that 
results in complete loss of the ability to perform sexual intercourse--
the amount payable for this loss is $50,000.
    (iii) Amputation of or damage to a testicle that requires 
testicular salvage, reconstructive surgery, or both--the amount payable 
for this loss is $25,000.
    (iv) Amputation of or damage to both testicles that requires 
testicular salvage, reconstructive surgery, or both--the amount payable 
for this loss is $50,000.
    (v) Permanent damage to both testicles requiring hormonal 
replacement therapy--the amount payable for this loss is $50,000.
    (vi) Complete or partial amputation of the vulva, uterus, or 
vaginal canal or damage to the vulva, uterus, or vaginal canal that 
requires reconstructive surgery--the amount payable for this loss is 
$50,000.
    (vii) Permanent damage to the vulva or vaginal canal that results 
in complete loss of the ability to perform sexual intercourse--the 
amount payable for this loss is $50,000.
    (viii) Amputation of an ovary or damage to an ovary that requires 
ovarian salvage, reconstructive surgery, or both--the amount payable 
for this loss is $25,000.
    (ix) Amputation of both ovaries or damage to both ovaries that 
requires ovarian salvage, reconstructive surgery, or both--the amount 
payable for this loss is $50,000.
    (x) Permanent damage to both ovaries requiring hormonal replacement 
therapy--the amount payable for this loss is $50,000.
    (xi) Permanent damage to the urethra, ureter(s), both kidneys, 
bladder, or urethral sphincter muscle(s) that requires urinary 
diversion and/or hemodialysis--the amount payable for this loss is 
$50,000.
    (xii) Losses due to genitourinary injuries may be combined with 
each other, but the maximum benefit for genitourinary losses may not 
exceed $50,000.
    (xiii) Any genitourinary loss may be combined with other injuries 
listed in Sec.  9.21(b)(1)-(18) and treated as one loss, provided that 
at all losses are the result of a single traumatic event. However, the 
total payment may not exceed $100,000.
    (20) Traumatic injury, other than traumatic brain injury, resulting 
in inability to perform at least 2 activities of daily living (ADL): 
(i) The amount payable at the 15th consecutive day of ADL loss is 
$25,000.
    (ii) The amount payable at the 30th consecutive day of ADL loss is 
an additional $25,000.
    (iii) The amount payable at the 60th consecutive day of ADL loss is 
an additional $25,000.
    (iv) The amount payable at the 90th consecutive day of ADL loss is 
an additional $25,000.
    (v) Duration of inability to perform ADL includes the date of the 
onset of inability to perform ADL and the first date on which member is 
able to perform ADL.
    (21) Hospitalization due to traumatic injury other than traumatic 
brain injury: (i) The amount payable at 15th consecutive day of ADL 
loss is $25,000.
    (ii) Payment for hospitalization may only replace the first ADL 
milestone in loss 20. Payment will be made for 15-day hospitalization 
or the first ADL milestone, whichever occurs earlier. Once payment has 
been made for the first payment milestone in loss 20, there are no 
additional payments for subsequent 15-day hospitalization due to the 
same traumatic injury. To receive an additional ADL payment amount 
under loss 20 after payment for hospitalization in the first payment 
milestone, the member must reach the next payment milestones of 60, 90, 
or 120 consecutive days.
    (iii) Duration of hospitalization includes the dates on which 
member is transported from the injury site to a hospital as defined in 
42 U.S.C. 1395x(e) or skilled nursing facility as defined in 42 U.S.C. 
1395i-3(a), admitted to the hospital or facility, transferred between a 
hospital or facility, leaves the hospital or facility for a therapeutic 
trip, and discharged from the hospital or facility.

(Authority: 38 U.S.C. 501(a), 1980A)


[FR Doc. 2023-05069 Filed 3-14-23; 8:45 am]
BILLING CODE 8320-01-P