81 FR 23228 - Extra-Schedular Evaluations for Individual Disabilities
DEPARTMENT OF VETERANS AFFAIRS Federal Register Volume 81, Issue 76 (April 20, 2016)
Federal Register Volume 81, Issue 76 (April 20, 2016)
| Page Range | 23228-23232 | |
| FR Document | 2016-08937 |
[Federal Register Volume 81, Number 76 (Wednesday, April 20, 2016)] [Proposed Rules] [Pages 23228-23232] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-08937] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 3 RIN 2900-AP48 Extra-Schedular Evaluations for Individual Disabilities AGENCY: Department of Veterans Affairs. ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its adjudication regulation pertaining to extra-schedular consideration of a service-connected disability in exceptional compensation cases. In a recent decision, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that VA's regulation, as written, requires VA to consider the combined effect of two or more service- connected disabilities when determining whether to refer a disability evaluation for extra-schedular consideration. VA, however, has long interpreted its regulation to provide an extra-schedular evaluation for a single disability, not the combined effect of two or more disabilities. This proposed amendment will clarify VA's regulation pertaining to exceptional compensation claims such that an extra- schedular evaluation is available only for an individual service- connected disability but not for the combined effect of more than one service-connected disability. DATES: Comments must be received on or before June 20, 2016. ADDRESSES: Written comments may be submitted through www.Regulations.gov; by mail or hand-delivery to Director, Regulation Policy and Management (02REG), Department of Veterans Affairs, 810 Vermont Avenue NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026. Comments should indicate that they are submitted in response to ``RIN 2900- [[Page 23229]] AP48--Extra-schedular evaluations for individual disabilities.'' Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1068, between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday (except holidays). Please call (202) 461-4902 for an appointment (This is not a toll-free number). In addition, during the comment period, comments may be viewed online through the Federal Docket Management System (FDMS) at www.Regulations.gov. FOR FURTHER INFORMATION CONTACT: Stephanie Li, Chief, Regulations Staff (211D), Compensation Service, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461-9700 (This is not a toll-free telephone number). SUPPLEMENTARY INFORMATION: The United State Court of Appeals noted in Menegassi v. Shinseki that Congress has given VA the authority to interpret its own regulations under its general rulemaking authority, citing 38 U.S.C. 501. 638 F.3d 1379, 1382 (Fed. Cir. 2011). Currently, 38 CFR 3.321(b)(1) provides that, ``[t]o accord justice . . . to the exceptional case where the schedular evaluations are found to be inadequate,'' the Under Secretary for Benefits (USB) or the Director of the Compensation and Pension Service is authorized ``to approve . . . an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.'' In Johnson v. McDonald, the Court explained that the plain language of Sec. 3.321(b)(1) using the plural forms of the ``schedular evaluations'' and ``disabilities'' is unambiguous and requires that VA consider the need for extra-schedular review by evaluating the collective impact of two or more service-connected disabilities, in addition to evaluating the effect of a single service-connected disability. 762 F.3d 1362, 1365-66 (Fed. Cir. 2014)., that Id. at 1365- 66. The history of 38 CFR 3.321(b)(1) reveals that Federal Circuit's interpretation does not accurately reflect VA's intent in issuing the regulation. Since 1936, VA has interpreted Sec. 3.321(b)(1) to provide for an extra-schedular evaluation for each service-connected disability for which the schedular rating is inadequate based upon the regulatory criteria. Section 3.321(b)(1) was originally promulgated as R & PR 1307, instructing that correspondence from a field office to the Director of the Compensation Service alleging that the rating schedule provides inadequate or excessive ratings in an individual case will contain a statement of facts indicating as clearly as possible the extent to which the reduction in actual earnings is due to the service- connected disability and the extent to which this reduction would probably affect the average worker, in occupations similar to the claimant's preenlistment occupation, suffering a similar disability. R & PR 1307(B) and (C)(1930). In 1936, R & PR 1307 was recodified as R & PR 1142, requiring a submitting agency to provide a recommendation concerning service connection and evaluation of every disability, under the applicable schedules as interpreted by the submitting agency. Then in 1954, this sentence was deleted from the regulation but later incorporated in the Department of Veterans Benefits Administration (VBA) Manual 8-5 Revised, para. 47.j. (Jan. 6, 1958). Thus, for 28 years following promulgating R & PR 1307(B) and (C), the VA predecessor regulations to Sec. 3.321(b)(1) and the Manual provided for an extra-schedular evaluation based upon the effects of a single ``disability,'' not ``disabilities''. In 1961, VA recodified R & PR 1307(B) and (C) as 38 CFR 3.321(b)(1) and added a sentence authorizing an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The VBA Manual provision regarding extra-schedular evaluations remained virtually the same from 1992 through June 30, 2015, when it was revised to implement Johnson. In 1992, the Manual was revised by adding the word ``individual'' before the word ``disability(ies)'' in paragraph 3.09, Submission For Extra-Schedular Consideration. M21-1, Part VI, para. 3.09 (Mar. 17, 1992). As amended, paragraph 3.09 required preparation of a memorandum to be submitted to Central Office whenever the schedular evaluations are considered to be inadequate for an individual disability(ies). VBA Manual M21-1, Part III, Subpart iv, chpt. 6, Sec. B, para. 4 (Aug. 3, 2011), stated in pertinent part: a. Extra-Schedular Evaluations in Compensation Claims Consider the issue of entitlement to an extra-schedular evaluation in compensation claims under38 CFR 3.321(b)(1) only where * * * * * -- there is evidence of exception or unusual circumstances indicating that the rating schedule may be inadequate to compensate for the average impairment of earning capacity due to disability (for example, marked interference with employment or frequent periods of hospitalization) * * * * * c. Submitting Compensation Claims for Extra-Schedular Consideration Submit compensation claims to C&P Service for extra-schedular consideration under 38 CFR 3.321(b)(1) or 38 CFR 4.16(b) if the schedular evaluations are considered to be inadequate for an individual disability * * * * * See Thun v. Shinseki, 572 F.3d 1366, 1369 (Fed. Cir. 2009) (referring to this Manual provision as VA's interpretation of 38 CFR 3.321(b)(1)), aff'd 22 Vet. App. 111 (2008). Thus, VA's interpretation of section 3.321(b)(1) as manifested by the VBA Manual was consistent for 22 years, until the Johnson decision. In addition, a 1996 General Counsel precedent opinion regarding the applicability of the regulation reads that ``[s]ection 3.321(b)(1) applies when the rating schedule is inadequate to compensate for the average impairment of earning capacity from a particular disability.'' VAOPGCPREC 6-96, para. 7, Add. 7. The opinion instructs that ``when a claimant submits evidence that his or her service-connected disability affects employability in ways not contemplated by the rating schedule, the Board should consider the applicability of section 3.321(b)(1).'' Id. In 2013, VA published a proposed revision to 38 CFR 3.321(b)(1) as part of its Regulation Rewrite Project. 78 FR 71042, 71217 (Nov. 27, 2013). Consistent with VA's long-standing interpretation, that revision proposes to clarify that extra-schedular evaluations may be assigned for a specific service-connected disability, as distinguished from the combined effects of multiple disabilities. Id. However, that proposed rule was published before the Johnson decision. We are therefore proposing a version of Sec. 3.321(b)(1) in this rulemaking that differs from the 2013 proposed rule in order to respond specifically to the Federal Circuit's analysis of the plain language of the current regulation. VA proposes to amend Sec. 3.321(b)(1) to clarify that [[Page 23230]] Sec. 3.321(b)(1) provides an extra-schedular evaluation for an individual service-connected disability that is so exceptional or unusual due to factors such as marked interference with employment or frequent periods of hospitalization as to render evaluation under the rating schedule impractical. VA proposes to retain the first sentence of current Sec. 3.321(b)(1), which states that ratings will be based on the average impairments of earning capacity and that the Secretary shall periodically readjust the rating schedule, because it explains the limited scope of section 3.321(b)(1). Pursuant to 38 U.S.C. 1155, VA is authorized to ``adopt and apply a schedule of rating of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity in civil occupations,'' rather than consideration of a veteran's actual wages or income. Based upon section 1155, the United States Court of Appeals for Veterans Claims (Veterans Court) rejected the argument that an inadequacy in the rating schedule for purposes of 38 CFR 3.321(b)(1) can be established solely by showing an asserted gap between a veteran's income and the income of similarly qualified workers in the same field. Thun v. Peake, 22 Vet. App. 111, 116 (2008). The Veterans Court explained that extra-schedular consideration cannot be used to undo the approximate nature that results from the rating system based on average impairment of earning capacity authorized by Congress. Id. Consistent with section 1155 and Thun, VA's proposed rule is not intended to authorize personalized ratings as a routine matter but only to provide for limited discretion in cases where the schedule is inadequate to compensate for average impairment of earning capacity. VA proposes to revise the second sentence of 38 CFR 3.321(b)(1) to specify that extra-schedular consideration is available if ``the schedular evaluation is inadequate to rate a single service-connected disability.'' We have added this language to explain that section 3.321(b)(1) would apply only to a single disability rather than upon consideration of multiple service-connected disabilities as the Federal Circuit held in Johnson. We have also deleted the phrase ``or disabilities'' at the end of the second sentence for the same purpose. VA also proposes to revise the last sentence of the regulation to clarify that the governing norm is a finding that ``application of the regular schedular standards is impractical because the referred disability is so exceptional or unusual due to such related factors as marked interference with employment or frequent periods of hospitalization.'' Other parts of the current Sec. 3.321(b)(1) have been rewritten for clarity, including the heading of Sec. 3.321(b), but the concepts remain unchanged. VA proposes to delete the reference to the Under Secretary for Benefits (USB) in current Sec. 3.321(b)(1). Although the regulation has long allowed for referral for USB extra-schedular consideration, in practice VA service centers refer these claims to the Director of the Compensation Service. This revision brings authority in line with actual practice. The Director of the Compensation Service may delegate to other Compensation Service personnel the authority to approve extra-schedular ratings and, currently, such authority has been given to certain personnel in the Policy Staff of the Compensation Service. This is consistent with the established principle that VBA personnel are authorized to carry out such functions as may be assigned to them for purposes of administering VA benefits. See 38 CFR 2.6(b)(1), 3.100(a). VA's proposed rule is logical and consistent with the regulatory scheme for evaluating disabilities. Individual disabilities are evaluated under criteria in VA's rating schedule describing the effects of specific diseases and injuries. See 38 CFR 4.71-4.150. The ratings assigned for individual conditions are combined into a single ``combined evaluation'' under a uniform formula set forth in a table. 38 CFR 3.323(a), 4.25. There is plainly a difference between the application of the diverse schedular criteria relating to specific conditions, and the application of a uniform formula for combining individual disability ratings. VA's proposed revision to Sec. 3.321(b)(1), clarifying that that the regulation pertains to a single disability, is consistent with this distinction. With respect to evaluation of individual conditions, the rating schedule criteria identify the predominant disabling features of the condition. For example, if VA determines that the condition produces significant disabling effects that are not contemplated by the rating- schedule criteria for that condition, VA may find that the rating- schedule criteria are inadequate in that case. In contrast, no criteria in the rating schedule provide for determining the ``adequacy'' of an overall combined evaluation that derives from several disabilities and their associated symptoms. When VA assigns disability ratings for two or more individual disabilities, those ratings are combined by applying a standard formula provided in 38 CFR 4.25. There are no provisions in the rating schedule describing impairments that would be associated with a particular combination of disabilities determined by using this formula. Accordingly, there are no applicable standards to determine whether the combined rating is adequate to compensate for the combined effects of those disabilities. Indeed, in view of the vast number of potential combinations of disabilities that could arise, it is not feasible to formulate standards. In the absence of any applicable objective standards for evaluating the ``adequacy'' of an overall combined rating for multiple disabilities, requiring adjudicators to consider the adequacy of combined ratings would lead to inconsistent and highly subjective determinations. Accordingly, consistent with our long- standing interpretation, VA has determined that consideration of extra- schedular ratings is most logically done only at the level of individual disabilities. Any extra-schedular ratings assigned for individual disabilities may then be combined under the standard formula for combining ratings. The proposed language for section 3.321(b)(1) requiring consideration of the adequacy of the schedular evaluations in VA's rating schedule is consistent with the evaluation of individual conditions. In addition, statutes and VA's implementing regulations provide additional compensation for the combined effect of more than one service-connected disability. Under 38 U.S.C. 1114(k)-(s), a veteran is entitled to special monthly compensation, in addition to the compensation payable under the VA rating schedule, for certain combinations of disabilities, e.g., anatomical loss or loss of use of both buttocks, both feet, or one hand and one foot, deafness in both ears or blindness in both eyes. See 38 CFR 3.350. In addition, 38 U.S.C. 1160(a) provides that if a veteran has suffered loss of certain paired organs or extremities as a result of service-connected disabilities and non-service-connected disabilities, VA must assign and pay the veteran the applicable rate of compensation as if the combination of disabilities were the result of service-connected disability. See 38 CFR 3.383. Accordingly, in cases where Congress or VA has determined that special rating consideration is warranted based on the combined effects of multiple disabilities, they have [[Page 23231]] expressly specified the manner of considering these combined effects. Finally, VA regulations authorize a rating of total disability based on individual unemployability for veterans whose disabilities meet certain criteria. Under 38 CFR 4.16(a), an adjudicator may assign a total disability evaluation based upon individual unemployability rating for compensation purposes, without referral to any other official, if, in cases of multiple service-connected disabilities, a veteran has one service-connected disability rated at least 40-percent disabling and a combined rating of at least 70 percent and is unable to secure or follow a substantially gainful occupation as the result of such disability or disabilities. Under 38 CFR 4.16(b), if a veteran's service-connected disabilities do not meet the percentage requirements of section 4.16(a), but the veteran is unable to secure and follow a substantially gainful occupation by reason of such service-connected disability, the rating board must submit the case to the Director of the Compensation Service for consideration of entitlement to a total disability based on individual unemployability rating. VA has thus prescribed a uniform standard for considering whether the combined effects of multiple disabilities produce total impairment of earning capacity. However, in instances where the inability to secure and follow a substantially gainful occupation is not shown, VA believes that, to ensure fair and consistent application of rating standards, consideration of extra-schedular ratings should be conducted with respect to individual disabilities rather than the combined effects of multiple disabilities. Executive Orders 12866 and 13563 Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a ``significant regulatory action,'' requiring review by the Office of Management and Budget (OMB), unless OMB waives such review, as ``any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.'' The economic, interagency, budgetary, legal, and policy implications of this proposed rule have been examined, and it has been determined not to be a significant regulatory action under Executive Order 12866. VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of this rulemaking and its impact analysis are available on VA's Web site at http://www.va.gov/orpm/, by following the link for ``VA Regulations Published From FY 2004 Through Fiscal Year to Date.'' Regulatory Flexibility Act The Secretary hereby certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-612). This proposed rule would directly affect only individuals and will not directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604. Unfunded Mandates The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This proposed rule would have no such effect on State, local, and tribal governments, or on the private sector. Paperwork Reduction Act This proposed rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). Catalog of Federal Domestic Assistance The Catalog of Federal Domestic Assistance number and title for the program affected by this document is 64.109, Veterans Compensation for Service-Connected Disability. Signing Authority The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Robert D. Snyder, Chief of Staff, approved this document on April 11, 2016, for publication. List of Subjects in 38 CFR Part 3 Administrative practice and procedure, Claims, Disability benefits, Veterans. Dated: April 13, 2016. Jeffrey Martin, Office of Regulation Policy & Management, Office of the General Counsel, Department of Veterans Affairs. For the reasons set out in the preamble, the Department of Veterans Affairs proposes to amend 38 CFR part 3 as follows: PART 3--ADJUDICATION Subpart A--Pension, Compensation, and Dependency and Indemnity Compensation 0 1. The authority citation for part 3, subpart A, continues to read as follows: Authority: 38 U.S.C. 501(a), unless otherwise noted. 0 2. Amend Sec. 3.321 by revising the heading of paragraph (b)., revising paragraph (b)(1), and adding an authority citation at the end of paragraph (b). The revisions and additions read as follows: Sec. 3.321 General rating considerations. * * * * * (b) Extra-schedular ratings in unusual cases. (1) Disability compensation. Ratings shall be based, as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice to the exceptional case where the schedular evaluation is inadequate to rate a single [[Page 23232]] service-connected disability, the Director of the Compensation Service or his or her delegatee, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph (b), an extra-schedular evaluation commensurate with the actual impairment of earning capacity due exclusively to the referred disability. The governing norm in these exceptional cases is a finding by the Director of the Compensation Service or delegatee that application of the regular schedular standards is impractical because the referred disability is so exceptional or unusual due to such related factors as marked interference with employment or frequent periods of hospitalization. * * * * * (Authority: 38 U.S.C. 501(a), 1155) [FR Doc. 2016-08937 Filed 4-19-16; 8:45 am] BILLING CODE 8320-01-P
![23228 Federal Register / Vol. 81, No. 76 / Wednesday, April 20, 2016 / Proposed Rules
M16475.lD, which guide the Coast 2005, issue of the Federal Register (70 (d) Enforcement periods. This section
Guard in complying with the National FR 15086). will be enforced from 9:30 p.m. to 11
Environmental Policy Act of 1969 (42 Documents mentioned in this NPRM p.m. on July 23, 2016.
U.S.C. 4321–4370f), and have made a as being available in the docket, and all (e) Informational Broadcasts. The
preliminary determination that this public comments, will be in our online COTP or a designated representative
action is one of a category of actions that docket at http://www.regulations.gov will inform the public through
do not individually or cumulatively and can be viewed by following that broadcast notices to mariners of the
have a significant effect on the human Web site’s instructions. Additionally, if enforcement period for the safety zone
environment. This proposed rule you go to the online docket and sign up as well as any changes in the dates and
involves a safety zone lasting less than for email alerts, you will be notified times of enforcement.
2 hours that would prohibit entry when comments are posted or a final Dated: April 14, 2016.
within one mile of the fireworks rule is published. M.L. Malloy,
display. Normally such actions are
List of Subjects in 33 CFR Part 165 Captain, U.S. Coast Guard, Captain of the
categorically excluded from further Port Sector Upper Mississippi.
review under paragraph 34(g) of Figure Harbors, Marine safety, Navigation [FR Doc. 2016–09097 Filed 4–19–16; 8:45 am]
2–1 of Commandant Instruction (water), Reporting and recordkeeping BILLING CODE 9110–04–P
M16475.lD. A preliminary requirements, Security measures,
environmental analysis checklist and Waterways.
Categorical Exclusion Determination are
available in the docket where indicated For the reasons discussed in the DEPARTMENT OF VETERANS
under ADDRESSES. We seek any preamble, the Coast Guard proposes to AFFAIRS
comments or information that may lead amend 33 CFR part 165 as follows:
to the discovery of a significant 38 CFR Part 3
PART 165—REGULATED NAVIGATION
environmental impact from this AREAS AND LIMITED ACCESS AREAS RIN 2900–AP48
proposed rule.
Extra-Schedular Evaluations for
G. Protest Activities ■ 1. The authority citation for part 165
Individual Disabilities
continues to read as follows:
The Coast Guard respects the First
Amendment rights of protesters. Authority: 33 U.S.C. 1231; 50 U.S.C. 191; AGENCY: Department of Veterans Affairs.
Protesters are asked to contact the 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; ACTION: Proposed rule.
person listed in the FOR FURTHER Department of Homeland Security Delegation
No. 0170.1. SUMMARY: The Department of Veterans
INFORMATION CONTACT section to
■ 2. Add § 165.T08–0242 to read as Affairs (VA) proposes to amend its
coordinate protest activities so that your adjudication regulation pertaining to
message can be received without follows:
extra-schedular consideration of a
jeopardizing the safety or security of § 165.08–0242 Safety Zone; Upper service-connected disability in
people, places, or vessels. Mississippi River between miles 853.2 and exceptional compensation cases. In a
854.2; Minneapolis, MN. recent decision, the United States Court
V. Public Participation and Request for
Comments (a) Location. The following area is a of Appeals for the Federal Circuit
safety zone: All waters of the Upper (Federal Circuit) held that VA’s
We view public participation as
Mississippi River between miles 853.2 regulation, as written, requires VA to
essential to effective rulemaking, and
and 854.2, from surface to bottom, consider the combined effect of two or
will consider all comments and material
Minneapolis, MN. more service-connected disabilities
received during the comment period.
Your comment can help shape the (b) Definitions. As used in this when determining whether to refer a
outcome of this rulemaking. If you section, designated representative disability evaluation for extra-schedular
submit a comment, please include the means a Coast Guard Patrol consideration. VA, however, has long
docket number for this rulemaking, Commander, including a Coast Guard interpreted its regulation to provide an
indicate the specific section of this coxswain, petty officer, or other officer extra-schedular evaluation for a single
document to which each comment operating a Coast Guard vessel and a disability, not the combined effect of
applies, and provide a reason for each Federal, State, and local officer two or more disabilities. This proposed
suggestion or recommendation. designated by or assisting the Captain of amendment will clarify VA’s regulation
We encourage you to submit the Port Upper Mississippi River pertaining to exceptional compensation
comments through the Federal (COTP) in the enforcement of the safety claims such that an extra-schedular
eRulemaking Portal at http:// zone. evaluation is available only for an
www.regulations.gov. If your material (c) Regulations. (1) Under the general individual service-connected disability
cannot be submitted using http:// safety zone regulations in subpart C of but not for the combined effect of more
www.regulations.gov, contact the person this part, you may not enter the safety than one service-connected disability.
in the FOR FURTHER INFORMATION zone described in paragraph (a) of this DATES: Comments must be received on
CONTACT section of this document for section unless authorized by the COTP or before June 20, 2016.
alternate instructions. or the COTP’s designated representative. ADDRESSES: Written comments may be
We accept anonymous comments. All (2) To seek permission to enter, submitted through
Lhorne on DSK5TPTVN1PROD with PROPOSALS
comments received will be posted contact the COTP or the COTP’s www.Regulations.gov; by mail or hand-
without change to http:// representative via VHF–FM channel 16, delivery to Director, Regulation Policy
www.regulations.gov and will include or through Coast Guard Sector Upper and Management (02REG), Department
any personal information you have Mississippi River at 314–269–2332. of Veterans Affairs, 810 Vermont
provided. For more about privacy and Those in the safety zone must comply Avenue NW., Room 1068, Washington,
the docket, you may review a Privacy with all lawful orders or directions DC 20420; or by fax to (202) 273–9026.
Act notice regarding the Federal Docket given to them by the COTP or the Comments should indicate that they are
Management System in the March 24, COTP’s designated representative. submitted in response to ‘‘RIN 2900–
VerDate Sep<11>2014 14:51 Apr 19, 2016 Jkt 238001 PO 00000 Frm 00041 Fmt 4702 Sfmt 4702 E:\FR\FM\20APP1.SGM 20APP1](https://thefederalregister.org/doc/81_FR_23304/page/1.svg)
![Federal Register / Vol. 81, No. 76 / Wednesday, April 20, 2016 / Proposed Rules 23229
AP48—Extra-schedular evaluations for schedular evaluation for each service- a. Extra-Schedular Evaluations in
individual disabilities.’’ Copies of connected disability for which the Compensation Claims
comments received will be available for schedular rating is inadequate based Consider the issue of entitlement to an
public inspection in the Office of upon the regulatory criteria. Section extra-schedular evaluation in compensation
Regulation Policy and Management, 3.321(b)(1) was originally promulgated claims under
Room 1068, between the hours of 8:00 as R & PR 1307, instructing that • 38 CFR 3.321(b)(1) only where
a.m. and 4:30 p.m., Monday through correspondence from a field office to the * * * * *
Friday (except holidays). Please call Director of the Compensation Service — there is evidence of exception or unusual
(202) 461–4902 for an appointment alleging that the rating schedule circumstances indicating that the rating
(This is not a toll-free number). In provides inadequate or excessive ratings schedule may be inadequate to compensate
addition, during the comment period, for the average impairment of earning
in an individual case will contain a capacity due to disability (for example,
comments may be viewed online statement of facts indicating as clearly marked interference with employment or
through the Federal Docket Management as possible the extent to which the frequent periods of hospitalization)
System (FDMS) at www.Regulations.gov. reduction in actual earnings is due to * * * * *
FOR FURTHER INFORMATION CONTACT: the service-connected disability and the
Stephanie Li, Chief, Regulations Staff c. Submitting Compensation Claims for
extent to which this reduction would Extra-Schedular Consideration
(211D), Compensation Service, probably affect the average worker, in
Department of Veterans Affairs, 810 Submit compensation claims to C&P
occupations similar to the claimant’s
Vermont Avenue NW., Washington, DC Service for extra-schedular consideration
preenlistment occupation, suffering a under 38 CFR 3.321(b)(1) or 38 CFR 4.16(b)
20420, (202) 461–9700 (This is not a similar disability. R & PR 1307(B) and if
toll-free telephone number). (C)(1930). • the schedular evaluations are considered to
SUPPLEMENTARY INFORMATION: The be inadequate for an individual disability
In 1936, R & PR 1307 was recodified
United State Court of Appeals noted in as R & PR 1142, requiring a submitting * * * * *
Menegassi v. Shinseki that Congress has agency to provide a recommendation
given VA the authority to interpret its See Thun v. Shinseki, 572 F.3d 1366,
concerning service connection and 1369 (Fed. Cir. 2009) (referring to this
own regulations under its general
evaluation of every disability, under the Manual provision as VA’s interpretation
rulemaking authority, citing 38 U.S.C.
applicable schedules as interpreted by of 38 CFR 3.321(b)(1)), aff’d 22 Vet.
501. 638 F.3d 1379, 1382 (Fed. Cir.
the submitting agency. Then in 1954, App. 111 (2008). Thus, VA’s
2011). Currently, 38 CFR 3.321(b)(1)
this sentence was deleted from the interpretation of section 3.321(b)(1) as
provides that, ‘‘[t]o accord justice . . .
to the exceptional case where the regulation but later incorporated in the manifested by the VBA Manual was
schedular evaluations are found to be Department of Veterans Benefits consistent for 22 years, until the
inadequate,’’ the Under Secretary for Administration (VBA) Manual 8–5 Johnson decision.
Benefits (USB) or the Director of the Revised, para. 47.j. (Jan. 6, 1958). Thus, In addition, a 1996 General Counsel
Compensation and Pension Service is for 28 years following promulgating R & precedent opinion regarding the
authorized ‘‘to approve . . . an extra- PR 1307(B) and (C), the VA predecessor applicability of the regulation reads that
schedular evaluation commensurate regulations to § 3.321(b)(1) and the ‘‘[s]ection 3.321(b)(1) applies when the
with the average earning capacity Manual provided for an extra-schedular rating schedule is inadequate to
impairment due exclusively to the evaluation based upon the effects of a compensate for the average impairment
service-connected disability or single ‘‘disability,’’ not ‘‘disabilities’’. of earning capacity from a particular
disabilities. The governing norm in In 1961, VA recodified R & PR disability.’’ VAOPGCPREC 6–96, para.
these exceptional cases is: A finding 1307(B) and (C) as 38 CFR 3.321(b)(1) 7, Add. 7. The opinion instructs that
that the case presents such an and added a sentence authorizing an ‘‘when a claimant submits evidence that
exceptional or unusual disability extra-schedular evaluation his or her service-connected disability
picture with such related factors as commensurate with the average earning affects employability in ways not
marked interference with employment capacity impairment due exclusively to contemplated by the rating schedule,
or frequent periods of hospitalization as the service-connected disability or the Board should consider the
to render impractical the application of disabilities. The VBA Manual provision applicability of section 3.321(b)(1).’’ Id.
the regular schedular standards.’’ regarding extra-schedular evaluations In 2013, VA published a proposed
In Johnson v. McDonald, the Court remained virtually the same from 1992 revision to 38 CFR 3.321(b)(1) as part of
explained that the plain language of through June 30, 2015, when it was its Regulation Rewrite Project. 78 FR
§ 3.321(b)(1) using the plural forms of revised to implement Johnson. In 1992, 71042, 71217 (Nov. 27, 2013).
the ‘‘schedular evaluations’’ and the Manual was revised by adding the Consistent with VA’s long-standing
‘‘disabilities’’ is unambiguous and word ‘‘individual’’ before the word interpretation, that revision proposes to
requires that VA consider the need for ‘‘disability(ies)’’ in paragraph 3.09, clarify that extra-schedular evaluations
extra-schedular review by evaluating the may be assigned for a specific service-
Submission For Extra-Schedular
collective impact of two or more connected disability, as distinguished
Consideration. M21–1, Part VI, para.
service-connected disabilities, in from the combined effects of multiple
3.09 (Mar. 17, 1992). As amended,
addition to evaluating the effect of a disabilities. Id. However, that proposed
paragraph 3.09 required preparation of a
single service-connected disability. 762 rule was published before the Johnson
memorandum to be submitted to Central
Lhorne on DSK5TPTVN1PROD with PROPOSALS
F.3d 1362, 1365–66 (Fed. Cir. 2014)., decision. We are therefore proposing a
Office whenever the schedular version of § 3.321(b)(1) in this
that Id. at 1365–66.
The history of 38 CFR 3.321(b)(1) evaluations are considered to be rulemaking that differs from the 2013
reveals that Federal Circuit’s inadequate for an individual proposed rule in order to respond
interpretation does not accurately reflect disability(ies). specifically to the Federal Circuit’s
VA’s intent in issuing the regulation. VBA Manual M21–1, Part III, Subpart analysis of the plain language of the
Since 1936, VA has interpreted iv, chpt. 6, § B, para. 4 (Aug. 3, 2011), current regulation. VA proposes to
§ 3.321(b)(1) to provide for an extra- stated in pertinent part: amend § 3.321(b)(1) to clarify that
VerDate Sep<11>2014 14:51 Apr 19, 2016 Jkt 238001 PO 00000 Frm 00042 Fmt 4702 Sfmt 4702 E:\FR\FM\20APP1.SGM 20APP1](https://thefederalregister.org/doc/81_FR_23304/page/2.svg)
![23232 Federal Register / Vol. 81, No. 76 / Wednesday, April 20, 2016 / Proposed Rules
service-connected disability, the Confidential Business Information (CBI) ENVIRONMENTAL PROTECTION
Director of the Compensation Service or or other information whose disclosure is AGENCY
his or her delegatee, upon field station restricted by statute. Multimedia
submission, is authorized to approve on submissions (audio, video, etc.) must be 40 CFR Part 52
the basis of the criteria set forth in this accompanied by a written comment. [EPA–R06–OAR–2014–0821; FRL–9945–10–
paragraph (b), an extra-schedular The written comment is considered the Region 6]
evaluation commensurate with the official comment and should include
actual impairment of earning capacity discussion of all points you wish to Approval and Promulgation of
due exclusively to the referred make. The EPA will generally not Implementation Plans; Louisiana;
disability. The governing norm in these consider comments or comment Revisions to the New Source Review
exceptional cases is a finding by the contents located outside of the primary State Implementation Plan; Air Permit
Director of the Compensation Service or submission (i.e. on the web, cloud, or Procedure Revisions
delegatee that application of the regular other file sharing system). For
schedular standards is impractical AGENCY: Environmental Protection
additional submission methods, please Agency (EPA).
because the referred disability is so contact the person identified in the FOR
exceptional or unusual due to such ACTION: Proposed rule.
FURTHER INFORMATION CONTACT section.
related factors as marked interference For the full EPA public comment policy, SUMMARY: The Environmental Protection
with employment or frequent periods of information about CBI or multimedia Agency (EPA) is proposing approval of
hospitalization. submissions, and general guidance on portions of ten revisions to the
* * * * * making effective comments, please visit Louisiana New Source Review (NSR)
(Authority: 38 U.S.C. 501(a), 1155) http://www2.epa.gov/dockets/ State Implementation Plan (SIP)
commenting-epa-dockets. submitted by the Louisiana Department
[FR Doc. 2016–08937 Filed 4–19–16; 8:45 am]
FOR FURTHER INFORMATION CONTACT: of Environmental Quality (LDEQ). These
BILLING CODE 8320–01–P
Ariel Garcia, Air Quality Planning Unit, revisions to the Louisiana SIP provide
U.S. Environmental Protection Agency, updates to the minor NSR and
EPA New England Regional Office, 5 nonattainment new source review
ENVIRONMENTAL PROTECTION Post Office Square, Suite 100 (mail (NNSR) permit programs in Louisiana
AGENCY code: OEP05–2), Boston, MA 02109– contained within the Chapter 5 Permit
3912, telephone number (617) 918– Procedures and Chapter 6 Regulations
40 CFR Part 52
1660, fax number (617) 918–0660, email on Control of Emissions through the Use
[EPA–R01–OAR–2015–0243; A–1–FRL– garcia.ariel@epa.gov. of Emission Reduction Credits (ERC)
9945–11–Region 1] Banking rules as initially submitted on
SUPPLEMENTARY INFORMATION: In the
Final Rules Section of this Federal November 15, 1993, and the subsequent
Air Plan Approval; Vermont; Stage I rule amendments for Air Permit
Vapor Recovery Requirements Register, EPA is approving the State’s
Procedure revisions submitted through
SIP submittal as a direct final rule
AGENCY: Environmental Protection November 3, 2014. The EPA’s final
without prior proposal because the
Agency (EPA). action will incorporate these rules into
Agency views this as a noncontroversial
ACTION: Proposed rule. the federally approved SIP. The rules
submittal and anticipates no adverse
generally enhance the SIP and were
comments. A detailed rationale for the
SUMMARY: The Environmental Protection evaluated in accordance with CAA
approval is set forth in the direct final
Agency (EPA) is proposing to approve a guidelines for the EPA action on SIP
rule. If no adverse comments are
State Implementation Plan (SIP) submittals and general rulemaking
received in response to this action rule,
revision submitted by the State of authority. This proposed action is
no further activity is contemplated. If
Vermont. This revision includes consistent with the requirements of
EPA receives adverse comments, the
regulatory amendments that clarify section 110 of the CAA.
direct final rule will be withdrawn and
Stage I vapor recovery requirements at DATES: Written comments must be
all public comments received will be
gasoline dispensing facilities (GDFs). received on or before May 20, 2016.
addressed in a subsequent final rule
The intended effect of this action is to ADDRESSES: Submit your comments,
based on this proposed rule. EPA will
approve Vermont’s revised Stage I vapor identified by Docket ID No. EPA–R06–
not institute a second comment period.
recovery regulations. This action is OAR–2014–0821, at http://
Any parties interested in commenting
being taken in accordance with the www.regulations.gov or via email to
on this action should do so at this time.
Clean Air Act. kordzi.stephanie@epa.gov. Follow the
Please note that if EPA receives adverse
DATES: Written comments must be online instructions for submitting
comment on an amendment, paragraph,
received on or before May 20, 2016. or section of this rule and if that comments. Once submitted, comments
ADDRESSES: Submit your comments, provision may be severed from the cannot be edited or removed from
identified by Docket ID No. EPA–R01– remainder of the rule, EPA may adopt Regulations.gov. The EPA may publish
OAR–2015–0243 at http:// as final those provisions of the rule that any comment received to its public
www.regulations.gov, or via email to are not the subject of an adverse docket. Do not submit electronically any
Arnold.Anne@epa.gov. For comments comment. information you consider to be
submitted at Regulations.gov, follow the For additional information, see the Confidential Business Information (CBI)
Lhorne on DSK5TPTVN1PROD with PROPOSALS
online instructions for submitting direct final rule which is located in the or other information whose disclosure is
comments. Once submitted, comments Rules Section of this Federal Register. restricted by statute. Multimedia
cannot be edited or removed from submissions (audio, video, etc.) must be
Regulations.gov. For either manner of Dated: April 1, 2016. accompanied by a written comment.
submission, the EPA may publish any H. Curtis Spalding, The written comment is considered the
comment received to its public docket. Regional Administrator, EPA New England. official comment and should include
Do not submit electronically any [FR Doc. 2016–09067 Filed 4–19–16; 8:45 am] discussion of all points you wish to
information you consider to be BILLING CODE 6560–50–P make. The EPA will generally not
VerDate Sep<11>2014 14:51 Apr 19, 2016 Jkt 238001 PO 00000 Frm 00045 Fmt 4702 Sfmt 4702 E:\FR\FM\20APP1.SGM 20APP1](https://thefederalregister.org/doc/81_FR_23304/page/5.svg)
Document Created: 2016-04-20 01:51:53
Document Modified: 2016-04-20 01:51:53
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Proposed rule. | |
| Dates | Comments must be received on or before June 20, 2016. | |
| Contact | Stephanie Li, Chief, Regulations Staff (211D), Compensation Service, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461-9700 (This is not a toll-free telephone number). | |
| FR Citation | 81 FR 23228 | |
| RIN Number | 2900-AP48 | |
| CFR Associated | Administrative Practice and Procedure; Claims; Disability Benefits and Veterans |
2025 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR