[Federal Register Volume 88, Number 72 (Friday, April 14, 2023)]
[Rules and Regulations]
[Pages 22914-22917]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-07426]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 4
RIN 2900-AR51
Exceptions to Applying the Bilateral Factor in VA Disability
Calculations
AGENCY: Department of Veterans Affairs.
ACTION: Interim final rule.
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SUMMARY: The Department of Veterans Affairs (VA) is issuing this
interim final
[[Page 22915]]
rule to amend the regulation governing the bilateral factor for
diseases and injuries of both arms, both legs, or paired skeletal
muscles. More specifically, this interim final rule will allow VA
adjudicators to exclude certain disabilities that would be calculated
using the bilateral factor to determine the combined evaluation if, by
their exclusion, a higher combined evaluation can be achieved.
DATES:
Effective date: This interim final rule is effective April 16,
2023.
Comment date: Comments must be received on or before June 13, 2023.
ADDRESSES: Comments must be submitted through www.regulations.gov.
Except as provided below, comments received before the close of the
comment period will be available at www.regulations.gov for public
viewing, inspection, or copying, including any personally identifiable
or confidential business information that is included in a comment. We
post the comments received before the close of the comment period on
the following website as soon as possible after they have been
received: https://www.regulations.gov. VA will not post on
Regulations.gov public comments that make threats to individuals or
institutions or suggest that the commenter will take actions to harm
the individual. VA encourages individuals not to submit duplicative
comments. We will post acceptable comments from multiple unique
commenters even if the content is identical or nearly identical to
other comments. Any public comment received after the comment period's
closing date is considered late and will not be considered in the final
rulemaking.
FOR FURTHER INFORMATION CONTACT: Olumayowa Famakinwa, Chief, VA
Schedule for Rating Disabilities (VASRD) Implementation Staff (218B),
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. The Need for Updating Bilateral Factor Policy
VA conducted claims data analysis and determined that, in very
limited circumstances, an unintended negative impact can result based
on VA's ``bilateral factor'' calculation, which is applied when
disabilities involving paired extremities are service connected.
Specifically, adding an extremity to a veteran's total combined (100
percent) evaluation in some cases can result in a less favorable 90
percent evaluation. To remedy this unintended negative impact, VA is
amending its regulation regarding the bilateral factor to ensure
affected veterans receive the appropriate level of compensation that
their disabilities warrant.
A. How Combined Evaluations Are Calculated
By statute, VA assigns a combined evaluation for all service-
connected disabilities using a schedule of 10 grades--10 percent, 20
percent, 30 percent, 40 percent, 50 percent, 60 percent, 70 percent, 80
percent, 90 percent and 100 percent (sometimes referred to as
``total''). See 38 U.S.C. 1155. This combined evaluation serves as the
basis for a veteran's monthly compensation. Id. Instructions for
combining evaluations for multiple service-connected disabilities are
found in 38 CFR 4.25. Specifically, Sec. 4.25 states that combinations
must be done by order of severity (larger numbers first, smaller
numbers last) and that, for example, ``a person having a 60 percent
disability is considered 40 percent efficient. Proceeding from this 40
percent efficiency, the effect of a further 30 percent disability is to
leave only 70 percent of the efficiency remaining after consideration
of the first disability, or 28 percent efficiency altogether. The
individual is thus 72 percent disabled[.]''
Paragraph (a) of 38 CFR 4.25 further states that ``[t]his combined
value will then be converted to the nearest number divisible by 10, and
combined values ending in 5 will be adjusted upward.'' Therefore, the
individual who is 72 percent disabled in the example would receive a 70
percent combined evaluation. This paragraph also provides instructions
for combining more than two disabilities. Using the example of
combining disabilities evaluated at 60 percent, 40 percent and 20
percent, the result is 80.8 percent; however, because the combination
result is a decimal, it is converted to a whole number, and decimals of
.5 or higher are adjusted upward. The result is an 81 percent
evaluation that is converted to the nearest degree divisible by 10, or
80 percent.
B. How the Bilateral Factor Is Applied
Section 4.26 of title 38, CFR, provides that when a partial
disability results from disease or injury of both arms, or of both
legs, or of paired skeletal muscles, the ratings for the disabilities
of the right and left sides will be combined as usual, and 10 percent
of this value will be added (i.e., not combined) before proceeding with
further combinations, or converting to degree of disability. The
bilateral factor will be applied to such bilateral disabilities before
other combinations are carried out and the rating for such disabilities
including the bilateral factor in Sec. 4.26 will be treated as 1
disability for the purpose of arranging in order of severity and for
all further combinations.
C. How the Bilateral Factor Lowers Evaluations in Isolated Cases
The bilateral factor calculation does two things: (1) it combines
bilateral disability evaluations together and (2) adds 10 percent of
that total value to those combined bilateral disabilities, with a
potential to increase the overall combined evaluation. However, the
closer the combined evaluation approaches 100 percent, the smaller the
effect of the additional disability on the combined rating, and, in
limited cases, the bilateral factor yields a lower evaluation than if
it were not applied to some or all of a particular veteran's bilateral
disability evaluations.
An example of this is when there are multiple disabilities that
combine to 93 percent, plus two other 10-percent evaluations. Applying
the bilateral factor, 10 and 10 first combine to 19, and 1.9
(representing 10 percent of 19) is added (not combined) to the 19,
resulting in 20.9. This is rounded to 21 (the nearest whole number) and
combined with 93 percent. 93 percent and 21 percent combine to 94.47,
which is rounded to 94 and then adjusted downward to a final combined
rating of 90 percent. However, if the bilateral factor is not applied,
93 and 10 combine to 93.7, which is rounded to 94, then 94 and 10
combine to 94.6, which is rounded to 95. This is then adjusted upward
to a final combined rating of 100 percent. Thus, in this example, not
applying the bilateral factor results in a greater benefit to the
veteran.
This effect can also be observed when combining 92 percent and 31
percent, where 31 percent is the result of two bilateral disabilities
at 20 percent and 10 percent, compared to combining 92 percent with 20
percent and 10 percent separately. Applying the bilateral factor, 92
percent and 31 percent combine to 94.48, which is rounded to 94 and
then adjusted downward to a final combined rating of 90 percent. If the
bilateral factor is not applied, 92 percent and 20 percent combine to
93.6, which is rounded to 94, and 94 percent and 10 percent combine to
94.6, which is rounded to 95. This is then adjusted upward to a final
combined rating of 100 percent.
[[Page 22916]]
II. The Solution
VA considered several solutions to arrive at one that resolves this
issue without creating new ones. First, it is important to note that
the bilateral factor increases combined evaluations in many cases or at
least results in the same evaluation that could be obtained without it
in almost every case. It is only at the low 90-percent level where it
may reduce a combined evaluation; therefore, VA determined that simply
eliminating the bilateral factor regulation would not be beneficial to
veterans. VA also rejected other potential solutions that would have
revised combination results less than 90 percent, as those would have
overcorrected for the problem.
Instead, VA determined that the most appropriate solution is simply
to allow disabilities that affect extremities but also cause the
bilateral factor calculation to lower the combined evaluation to be
excluded from the bilateral factor calculation. VA will make the
necessary system changes so that when a combined evaluation equals 90
percent and the bilateral factor has been applied, VA's claims
processing system will perform calculations to determine if a 100
percent rating can be achieved if a bilateral disability or multiple
bilateral disabilities are excluded. If so, the system will assign a
100 percent combined evaluation.
To implement this change, VA is adding an exception to the
requirement in 38 CFR 4.26 that all bilateral disabilities must be
combined as usual and 10 percent of the combined value added before
proceeding with further combinations or converting to degree of
disability. The exception will allow VA to avoid applying the bilateral
factor calculation for a given bilateral disability or disabilities if
excluding that disability or disabilities will allow for a higher
combined evaluation when combined separately.
III. Converting Cases Based on VA's Own Initiative
This rulemaking, to amend Sec. 4.26 to enable a veteran to receive
an increased evaluation, is considered a liberalizing VA issue within
the meaning of 38 U.S.C. 5110(g) and 38 CFR 3.114 because it would
result in higher ratings for impacted veterans than would currently
result under Sec. 4.26. Section 3.114 also provides authority for VA
to review claims on its own initiative after a liberalizing VA issue
has become effective. In this well-defined, limited situation, VA can
identify all veterans who would benefit from the application of this
bilateral factor exception. Therefore, VA will adjust all the affected
combined evaluations running on the effective date of this rulemaking
without requiring a claim from affected veterans or their authorized
representatives. VA will also provide notice of this adjustment to
affected veterans and their representatives in accordance with 38
U.S.C. 5104. Advance notice is not required because it would have no
adverse impact on the affected veterans. Finally, the provisions of 38
U.S.C. 5110(g) and 38 CFR 3.114 will apply if a veteran requests a
review based on this liberalizing issue. Under those provisions, the
effective date of an increased evaluation based on this liberalizing VA
issue may be authorized from the effective date of this issue if the
claim is received within one year of that date. If the claim is
received more than one year from the effective date of this
liberalizing VA issue, then the effective date of the increased
evaluation may be authorized for a period of one year prior to the date
the claim is received.
IV. Regulatory Amendments
For the reasons discussed above, VA is amending 38 CFR 4.26 as
follows:
VA is amending the introductory paragraph by adding ``Except as
provided in paragraph (d) of this section,'' to the first sentence and
replacing ``10's'' with ``10 percent evaluations'' in the penultimate
sentence.
VA is adding new paragraph (d) to provide the exception to the
application of the bilateral factor.
Administrative Procedure Act
The Secretary of Veterans Affairs finds that there is good cause,
under the provisions of 5 U.S.C. 553(b)(B), that advance notice and
opportunity for public comment is contrary to the public interest,
particularly to veterans with bilateral disability evaluations. This
interim final rule enables VA to provide higher evaluations for a
number of veterans that will entitle them to additional benefits from
VA and other Federal and state government agencies.
It would have been contrary to the public interest to provide
opportunity for prior notice and comment for this rulemaking because a
delay in implementation would have required VA rating officials to
continue to apply the bilateral factor even where it results in a lower
rating for impacted veterans. Moreover, this rule will not negatively
impact any veterans but rather will only serve to provide higher
ratings where feasible. Lastly, a delay in implementation would have
denied veterans timely access to benefits based on the appropriate
combined rating warranted by their disabilities.
For the same reasons, VA finds that there is good cause under 5
U.S.C. 553(d)(3) to make this rule effective upon the date of
publication.
For the above reasons, VA is issuing this rule as an interim final
rule with immediate effect. However, VA will consider and address
comments that are received within 60 days of the date this interim
final rule is published in the Federal Register.
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 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 Regulatory Flexibility Act, 5 U.S.C. 601-612, is not applicable
to this rulemaking because notice of proposed rulemaking is not
required. 5 U.S.C. 601(2), 603(a), 604(a).
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 interim final rule will have no such
effect on State, local, and tribal governments, or on the private
sector.
Paperwork Reduction Act
This interim final rule contains no provisions constituting a
collection of information under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501-3521).
[[Page 22917]]
Congressional Review Act
Pursuant to 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).
List of Subjects in 38 CFR Part 4
Disability benefits.
Signing Authority
Denis McDonough, Secretary of Veterans Affairs, approved this
document on June 6, 2022, 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.
Jeffrey M. Martin,
Assistant Director, Office of Regulation Policy & Management, Office of
General Counsel, Department of Veterans Affairs.
For the reasons stated in the preamble, VA amends 38 CFR part 4 as
set forth below:
PART 4--SCHEDULE FOR RATING DISABILITIES
0
1. The authority citation for part 4 continues to read as follows:
Authority: 38 U.S.C. 1155, unless otherwise noted.
0
2. Amend Sec. 4.26 by:
0
a. Revising the introductory text;
0
b. Adding headings to paragraphs (a) through (c); and
0
c. Adding paragraph (d).
The revision and additions read as follows:
Sec. 4.26 Bilateral factor.
Except as provided in paragraph (d) of this section, when a partial
disability results from disease or injury of both arms, or of both
legs, or of paired skeletal muscles, the ratings for the disabilities
of the right and left sides will be combined as usual, and 10 percent
of this value will be added (i.e., not combined) before proceeding with
further combinations, or converting to degree of disability. The
bilateral factor will be applied to such bilateral disabilities before
other combinations are carried out and the rating for such disabilities
including the bilateral factor in this section will be treated as one
disability for the purpose of arranging in order of severity and for
all further combinations. For example, with disabilities evaluated at
60 percent, 20 percent, 10 percent and 10 percent (with the two 10
percent evaluations being bilateral disabilities), the order of
severity would be 60, 21 and 20. The 60 and 21 combine to 68 percent
and the 68 and 20 combine to 74 percent, converted to 70 percent as the
final degree of disability.
(a) Definitions. * * *
(b) Procedure for four affected extremities. * * *
(c) Applicability. * * *
(d) Exception. In cases where the combined evaluation is lower than
what could be achieved by not including one or more bilateral
disabilities in the bilateral factor calculation, those bilateral
disabilities will be removed from the bilateral factor calculation and
combined separately, to achieve the combined evaluation most favorable
to the veteran.
[FR Doc. 2023-07426 Filed 4-13-23; 8:45 am]
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