83_FR_20824 83 FR 20735 - Special Monthly Compensation for Veterans With Traumatic Brain Injury

83 FR 20735 - Special Monthly Compensation for Veterans With Traumatic Brain Injury

DEPARTMENT OF VETERANS AFFAIRS

Federal Register Volume 83, Issue 89 (May 8, 2018)

Page Range20735-20737
FR Document2018-09736

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

Federal Register, Volume 83 Issue 89 (Tuesday, May 8, 2018)
[Federal Register Volume 83, Number 89 (Tuesday, May 8, 2018)]
[Rules and Regulations]
[Pages 20735-20737]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-09736]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AP23


Special Monthly Compensation for Veterans With Traumatic Brain 
Injury

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

-----------------------------------------------------------------------

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

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

FOR FURTHER INFORMATION CONTACT: Roselyn Tyson, Regulations Staff 
(211D), Compensation Service, Department of Veterans Affairs, 810 
Vermont Avenue NW., Washington, DC 20420, (202) 461-9700. (This is not 
a toll-free telephone number.)

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

Response to Public Comments

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

[[Page 20736]]

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

Executive Orders 12866, 13563 and 13771

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, when 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, and other advantages; distributive impacts; 
and equity). Executive Order 13563 (Improving Regulation and Regulatory 
Review) emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
Executive Order 12866 (Regulatory Planning and Review) defines a 
``significant regulatory action'' requiring review by the Office of 
Management and Budget (OMB), unless OMB waives such review, as ``any 
regulatory action that is likely to result in a rule that may: (1) Have 
an annual effect on the economy of $100 million or more or adversely 
affect in a material way the economy, a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local, or tribal governments or communities; (2) 
Create a serious inconsistency or otherwise interfere with an action 
taken or planned by another agency; (3) Materially alter the budgetary 
impact of entitlements, grants, user fees, or loan programs or the 
rights and obligations of recipients thereof; or (4) Raise novel legal 
or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in this Executive Order''.
    The economic, interagency, budgetary, legal, and policy 
implications of this regulatory action have been examined, and it has 
been determined not to be a significant regulatory action under 
Executive Order 12866. VA's impact analysis can be found as a 
supporting document at http://www.regulations.gov, usually within 48 
hours after the rulemaking document is published. Additionally, a copy 
of this rulemaking and its impact analysis are available on VA's 
website at http://www.va.gov/orpm/, by following the link for ``VA 
Regulations Published From FY 2004 Through Fiscal Year to Date.'' This 
final rule is not an E.O. 13771 regulatory action because this final 
rule is not significant under E.O. 12866.

Regulatory Flexibility Act

    The Secretary hereby certifies that this final rule will not have a 
significant economic impact on a substantial number of small entities 
as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-
612). This final rule will directly affect only individuals and will 
not directly affect small entities. Therefore, pursuant to 5 U.S.C. 
605(b), this rulemaking is exempt from the initial and final regulatory 
flexibility analysis requirements of sections 603 and 604.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532, requires 
that agencies prepare an assessment of anticipated costs and benefits 
before issuing any rule that may result in the expenditure by State, 
local, and tribal governments, in the aggregate, or by the private 
sector, of $100 million or more (adjusted annually for inflation) in 
any one year. This final rule will have no such effect on State, local, 
and tribal governments, or on the private sector.

Paperwork Reduction Act

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

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance number and title for the 
program affected by this document is 64.109, Veterans Compensation for 
Service-Connected Disability.

Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this 
document and authorized the undersigned to sign and submit the document 
to the Office of the Federal Register for publication electronically as 
an official document of the Department of Veterans Affairs. Jacquelyn 
Hayes-Byrd, Deputy Chief of Staff, Department of Veterans Affairs, 
approved this document on May 2, 2018, for publication.

List of Subjects in 38 CFR Part 3

    Administrative practice and procedure, Claims, Disability benefits, 
Health care, Pensions, Radioactive materials, Veterans, Vietnam.

    Dated: May 2, 2018.
Jeffrey M. Martin,
Impact Analyst, Office of Regulation Policy & Management, Office of the 
Secretary, Department of Veterans Affairs.

    For the reasons stated in the preamble to this final rule, VA 
amends 38 CFR part 3 as follows:

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity 
Compensation

0
1. The authority citation for part 3, subpart A, continues to read as 
follows:

    Authority:  38 U.S.C. 501(a), unless otherwise noted.

0
2. Amend Sec.  3.350 by adding paragraph (j) and a parenthetical 
authority citation to read as follows:


Sec.  3.350   Special monthly compensation ratings.

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

[[Page 20737]]

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

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


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


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

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

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


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


Sec.  3.552  Adjustment of allowance for aid and attendance.

* * * * *

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


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



                                                                   Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations                                           20735

                                              Gulf of Mexico at Mississippi Canyon                    20420, (202) 461–9700. (This is not a                 applying for the benefit was not
                                              Block 437. The facility is located at                   toll-free telephone number.)                          dishonorably discharged. This
                                              28°34′25.47″ N 87°56′03.11″ W (NAD                      SUPPLEMENTARY INFORMATION: On                         commenter also appears to suggest that
                                              83), and the area within 500 meters                     December 21, 2016, VA published in the                posttraumatic stress disorder (PTSD) be
                                              (1640.4 feet) from each point on the                    Federal Register (81 FR 93649) a                      included in the definition of a TBI and
                                              facility structure’s outer edge is a safety             proposed rule to amend 38 CFR 3.350                   provided examples of individuals who
                                              zone.                                                   and 3.352 to add SMC for veterans with                may have benefited from this approach.
                                                (b) Regulation. No vessel may enter or                residuals of TBI. As explained in the                    While any injury outside the line of
                                              remain in this safety zone except the                   proposed rule, section 601 of the                     duty would not be service connected,
                                              following:                                              Veterans’ Benefits Act of 2010, Public                we note that the occurrence of such an
                                                (1) An attending vessel, as defined by                Law 111–275 (the Veterans’ Benefits                   injury is interpreted very broadly. See
                                              33 CFR 147.20;                                          Act) authorized SMC for veterans who,                 Holton v. Shinseki, 557 F.3d 1362,
                                                (2) A vessel under 100 feet in length                 as the result of service-connected                    1366–67 (Fed. Cir. 2009) (explaining
                                              overall not engaged in towing; or                       disability, are in need of regular aid and            that an injury or disease will be deemed
                                                (3) A vessel authorized by the Eighth                 attendance for the residuals of TBI, and              to have been incurred in the line of duty
                                              Coast Guard District Commander or a                     in the absence of such regular aid and                if it occurred at almost any time during
                                              designated representative.                              attendance, would require                             a veteran’s active service—even during
                                                Dated: May 2, 2018.                                   hospitalization, nursing home care, or                authorized leave). With regard to the
                                                                                                      other residential institutional care.                 commenter’s statement that self-
                                              Paul F. Thomas,
                                                                                                      Effective October 1, 2011, section 601                inflicted injuries should not be the basis
                                              Rear Admiral, U.S. Coast Guard, Commander,
                                                                                                      authorized an additional monetary                     for service-connected TBI for SMC, we
                                              Eighth Coast Guard District.
                                                                                                      allowance for veterans with residuals of              note that self-inflicted injuries generally
                                              [FR Doc. 2018–09789 Filed 5–7–18; 8:45 am]
                                                                                                      TBI who require this higher level of care             would not be covered to the extent they
                                              BILLING CODE 9110–04–P                                                                                        constituted willful misconduct.
                                                                                                      but would not otherwise qualify for the
                                                                                                      benefit under 38 U.S.C. 1114(r)(2).                   Whether or not a given self-injury rises
                                                                                                         To date, VA has relied on non-                     to the level of willful misconduct is a
                                              DEPARTMENT OF VETERANS                                  regulatory guidance to implement                      case specific factual determination that
                                              AFFAIRS                                                 section 601 of the Veterans’ Benefits                 is separate from the level of
                                                                                                      Act. By issuing this final rule, VA                   compensation at stake, which is what is
                                              38 CFR Part 3                                                                                                 affected by this rule. See 38 CFR 3.301.
                                                                                                      updates its adjudication regulations to
                                              RIN 2900–AP23                                           reflect the authorization provided by                 While the commenter also expressed
                                                                                                      section 601.                                          that SMC based on service-connected
                                              Special Monthly Compensation for                                                                              TBI should not be available to
                                              Veterans With Traumatic Brain Injury                    Response to Public Comments                           individuals with a dishonorable
                                                                                                        As noted above, VA published the                    discharge, VA statutes and regulations
                                              AGENCY:    Department of Veterans Affairs.
                                                                                                      proposed rule in the Federal Register                 preclude veteran status and benefits for
                                              ACTION:   Final rule.                                   (81 FR 93649) on December 21, 2016.                   individuals with a dishonorable
                                              SUMMARY:    The Department of Veterans                  VA provided a 60-day public comment                   discharge. 38 U.S.C. 101(2); 38 CFR
                                              Affairs (VA) amends its adjudication                    period, which ended on February 21,                   3.12(a). Finally, in response to the
                                              regulations to add an additional                        2017, and received two comments. VA                   commenter’s last assertion that VA
                                              compensation benefit for veterans with                  responds to all comments as follows.                  should define whether PTSD ‘‘is
                                              residuals of traumatic brain injury (TBI).              For the reasons set forth in the proposed             included under the definition of [TBI],’’
                                              This final rule incorporates in                         rule and below, VA adopts the proposed                we note that PTSD is already a disability
                                                                                                      rule as final, without changes.                       available for VA service connection and
                                              regulations a benefit authorized by the
                                                                                                        Both commenters expressed support                   rating as a mental disorder under 38
                                              enactment of the Veterans’ Benefits Act
                                                                                                      for the rulemaking, noting that SMC                   CFR 4.130, Diagnostic Code 9411.
                                              of 2010. The Veterans’ Benefits Act                     should be awarded for TBI. VA                         Therefore, VA already compensates
                                              authorizes special monthly                              appreciates the time and effort                       veterans for service-connected PTSD,
                                              compensation (SMC) for veterans with                    expended by these commenters in                       including with PTSD that is somehow
                                              TBI who are in need of aid and                          reviewing the proposed rule and in                    causally related to TBI.
                                              attendance, and in the absence of such                  submitting comments, as well as their                    In any case, the general eligibility
                                              aid and attendance, would require                       support for this rulemaking.                          criteria for SMC and the definition of
                                              hospitalization, nursing home care, or                    One commenter stated that this                      TBI are outside the scope of this
                                              other residential institutional care.                   rulemaking should restrict the use of                 rulemaking. Therefore, VA makes no
                                              DATES: Effective Date: This final rule is               SMC payments to treatment for TBI. The                change based on these comments.
                                              effective June 7, 2018.                                 commenter noted that application for                     The second commenter stated that
                                                 Applicability Date: The provisions of                SMC funds should be made on a yearly                  veterans with TBI should have always
                                              this final rule shall apply to all                      basis and the funds should be applied                 qualified for maximum monthly relief.
                                              applications for benefits received by VA                specifically for medical care of the TBI.             VA notes that SMC is authorized by
                                              on or after October 1, 2011, or that were               VA notes that it has no authority to                  statute, and prior to the enactment of
                                              pending before VA, the United States                    direct how payments are used once                     the Veterans’ Benefits Act, VA lacked
                                              Court of Appeals for Veterans Claims, or                awarded to a veteran; VA only has legal               the statutory authority to provide the
sradovich on DSK3GMQ082PROD with RULES




                                              the United States Court of Appeals for                  authority to determine benefit eligibility            level of SMC contemplated in the Act
                                              the Federal Circuit on October 1, 2011.                 and entitlement.                                      for TBI. The commenter also noted the
                                              FOR FURTHER INFORMATION CONTACT:                          The same commenter stated that                      length of time it took to authorize and
                                              Roselyn Tyson, Regulations Staff                        application of SMC should be limited to               implement SMC for TBI. As noted
                                              (211D), Compensation Service,                           claims where TBI that was incurred in                 above, VA has to date relied on non-
                                              Department of Veterans Affairs, 810                     the line of duty and was not a result of              regulatory guidance to implement the
                                              Vermont Avenue NW., Washington, DC                      self-inflicted injury, and the veteran                statutory authorization for SMC for TBI.


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                                              20736                Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations

                                              Finally, the commenter stated that VA                   13771 regulatory action because this                  the Department of Veterans Affairs.
                                              should provide coverage to veterans for                 final rule is not significant under E.O.              Jacquelyn Hayes-Byrd, Deputy Chief of
                                              all injuries, not just TBI. As noted                    12866.                                                Staff, Department of Veterans Affairs,
                                              above, the requirements for service                                                                           approved this document on May 2,
                                                                                                      Regulatory Flexibility Act
                                              connection, including for disabilities                                                                        2018, for publication.
                                              other than TBI, are beyond the scope of                   The Secretary hereby certifies that
                                              this rulemaking. Therefore, VA makes                    this final rule will not have a significant           List of Subjects in 38 CFR Part 3
                                              no change based on this comment.                        economic impact on a substantial                        Administrative practice and
                                                                                                      number of small entities as they are                  procedure, Claims, Disability benefits,
                                              Executive Orders 12866, 13563 and                       defined in the Regulatory Flexibility Act             Health care, Pensions, Radioactive
                                              13771                                                   (5 U.S.C. 601–612). This final rule will              materials, Veterans, Vietnam.
                                                 Executive Orders 12866 and 13563                     directly affect only individuals and will               Dated: May 2, 2018.
                                              direct agencies to assess the costs and                 not directly affect small entities.
                                              benefits of available regulatory                                                                              Jeffrey M. Martin,
                                                                                                      Therefore, pursuant to 5 U.S.C. 605(b),
                                              alternatives and, when regulation is                                                                          Impact Analyst, Office of Regulation Policy
                                                                                                      this rulemaking is exempt from the
                                              necessary, to select regulatory                                                                               & Management, Office of the Secretary,
                                                                                                      initial and final regulatory flexibility              Department of Veterans Affairs.
                                              approaches that maximize net benefits                   analysis requirements of sections 603
                                              (including potential economic,                          and 604.                                                For the reasons stated in the preamble
                                              environmental, public health and safety                                                                       to this final rule, VA amends 38 CFR
                                              effects, and other advantages;                          Unfunded Mandates                                     part 3 as follows:
                                              distributive impacts; and equity).                         The Unfunded Mandates Reform Act
                                              Executive Order 13563 (Improving                        of 1995, 2 U.S.C. 1532, requires that                 PART 3—ADJUDICATION
                                              Regulation and Regulatory Review)                       agencies prepare an assessment of
                                              emphasizes the importance of                            anticipated costs and benefits before                 Subpart A—Pension, Compensation,
                                              quantifying both costs and benefits,                    issuing any rule that may result in the               and Dependency and Indemnity
                                              reducing costs, harmonizing rules, and                  expenditure by State, local, and tribal               Compensation
                                              promoting flexibility. Executive Order                  governments, in the aggregate, or by the              ■ 1. The authority citation for part 3,
                                              12866 (Regulatory Planning and                          private sector, of $100 million or more               subpart A, continues to read as follows:
                                              Review) defines a ‘‘significant                         (adjusted annually for inflation) in any
                                              regulatory action’’ requiring review by                 one year. This final rule will have no                  Authority: 38 U.S.C. 501(a), unless
                                              the Office of Management and Budget                                                                           otherwise noted.
                                                                                                      such effect on State, local, and tribal
                                              (OMB), unless OMB waives such                           governments, or on the private sector.                ■  2. Amend § 3.350 by adding paragraph
                                              review, as ‘‘any regulatory action that is                                                                    (j) and a parenthetical authority citation
                                              likely to result in a rule that may: (1)                Paperwork Reduction Act                               to read as follows:
                                              Have an annual effect on the economy                       Although this document contains
                                                                                                                                                            § 3.350 Special monthly compensation
                                              of $100 million or more or adversely                    provisions constituting a collection of
                                                                                                                                                            ratings.
                                              affect in a material way the economy, a                 information under the provisions of the
                                              sector of the economy, productivity,                    Paperwork Reduction Act (44 U.S.C.                    *       *    *     *    *
                                              competition, jobs, the environment,                     3501 et seq.), no new or proposed                        (j) Special aid and attendance benefit
                                              public health or safety, or State, local,               revised collections of information are                for residuals of traumatic brain injury
                                              or tribal governments or communities;                   associated with this final rule. The                  (38 U.S.C. 1114(t)). The special monthly
                                              (2) Create a serious inconsistency or                   information collection requirements are               compensation provided by 38 U.S.C.
                                              otherwise interfere with an action taken                currently approved by the Office of                   1114(t) is payable to a veteran who, as
                                              or planned by another agency; (3)                       Management and Budget (OMB) and                       the result of service-connected
                                              Materially alter the budgetary impact of                have been assigned OMB control                        disability, is in need of regular aid and
                                              entitlements, grants, user fees, or loan                number 2900–0721. Since this                          attendance for the residuals of traumatic
                                              programs or the rights and obligations of               collection was revised several years                  brain injury, is not eligible for
                                              recipients thereof; or (4) Raise novel                  after the implementation of the                       compensation under 38 U.S.C.
                                              legal or policy issues arising out of legal             Veterans’ Benefit Act of 2010 and VBA’s               1114(r)(2), and in the absence of such
                                              mandates, the President’s priorities, or                interim guidance, VA concludes that                   regular aid and attendance would
                                              the principles set forth in this Executive              any new respondents have been                         require hospitalization, nursing home
                                              Order’’.                                                captured in the existing respondent                   care, or other residential institutional
                                                 The economic, interagency,                           numbers. See Regulatory Impact                        care. Determination of this need is
                                              budgetary, legal, and policy                            Analysis for a full explanation.                      subject to the criteria of § 3.352.
                                              implications of this regulatory action                                                                           (1) A veteran described in this
                                              have been examined, and it has been                     Catalog of Federal Domestic Assistance                paragraph (j) shall be entitled to the
                                              determined not to be a significant                        The Catalog of Federal Domestic                     amount equal to the compensation
                                              regulatory action under Executive Order                 Assistance number and title for the                   authorized under 38 U.S.C. 1114(o) or
                                              12866. VA’s impact analysis can be                      program affected by this document is                  the maximum rate authorized under 38
                                              found as a supporting document at                       64.109, Veterans Compensation for                     U.S.C. 1114(p) and, in addition to such
                                              http://www.regulations.gov, usually                     Service-Connected Disability.                         compensation, a monthly allowance
                                              within 48 hours after the rulemaking                                                                          equal to the rate described in 38 U.S.C.
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                                              document is published. Additionally, a                  Signing Authority                                     1114(r)(2) during periods he or she is
                                              copy of this rulemaking and its impact                    The Secretary of Veterans Affairs, or               not hospitalized at United States
                                              analysis are available on VA’s website at               designee, approved this document and                  Government expense. (See § 3.552(b)(2)
                                              http://www.va.gov/orpm/, by following                   authorized the undersigned to sign and                as to continuance following admission
                                              the link for ‘‘VA Regulations Published                 submit the document to the Office of the              for hospitalization.)
                                              From FY 2004 Through Fiscal Year to                     Federal Register for publication                         (2) An allowance authorized under 38
                                              Date.’’ This final rule is not an E.O.                  electronically as an official document of             U.S.C. 1114(t) shall be paid in lieu of


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                                                                   Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations                                                20737

                                              any allowance authorized by 38 U.S.C.                   § 3.352 Criteria for determining need for             level of care the veteran would require
                                              1114(r)(1).                                             aid and attendance and ‘‘permanently                  hospitalization, nursing home care, or
                                                                                                      bedridden.’’                                          other residential institutional care.
                                              (Authority: 38 U.S.C. 501, 38 U.S.C. 1114(t))
                                                                                                      *       *     *    *      *                           *     *     *     *     *
                                              ■ 3. Amend § 3.352 by:                                     (b) * * *
                                                                                                         (2) A veteran is entitled to the higher            (Authority: 38 U.S.C. 501, 1114(r)(2), 1114(t))
                                              ■ a. In paragraph (b)(1)(iii), removing
                                                                                                      level aid and attendance allowance                    ■  4. Amend § 3.552 by:
                                              the phrase ‘‘paragraph (b)(2)’’ and in its              authorized by § 3.350(j) in lieu of the
                                              place adding the phrase ‘‘paragraph                                                                           ■  a. In paragraph (b)(2), removing ‘‘38
                                                                                                      regular aid and attendance allowance                  U.S.C. 1114(r) (1) or (2)’’ and adding in
                                              (b)(3)’’;                                               when all of the following conditions are              its place ‘‘38 U.S.C. 1114(r)(1) or (2) or
                                              ■ b. Redesignating paragraphs (b)(2)                    met:                                                  38 U.S.C. 1114(t)’’;
                                              through (5) as (b)(3) through (6);                         (i) As a result of service-connected               ■ b. Removing the parenthetical
                                                                                                      residuals of traumatic brain injury, the
                                              ■ c. Adding new paragraph (b)(2);                                                                             authority citation at the end of
                                                                                                      veteran meets the requirements for
                                              ■ d. In newly redesignated paragraph                                                                          paragraph (b); and
                                                                                                      entitlement to the regular aid and
                                              (b)(4), removing the phrase ‘‘paragraph                                                                       ■ c. Adding a parenthetical authority
                                                                                                      attendance allowance in paragraph (a) of
                                              (b)(2)’’ and in its place adding the                    this section.                                         citation at the end of the section.
                                              phrase ‘‘paragraph (b)(3)’’;                               (ii) As a result of service-connected                 The addition reads as follows:
                                              ■ e. Removing the parenthetical                         residuals of traumatic brain injury, the              § 3.552 Adjustment of allowance for aid
                                              authority citation at the end of                        veteran needs a ‘‘higher level of care’’              and attendance.
                                              paragraph (b); and                                      (as defined in paragraph (b)(3) of this
                                                                                                                                                            *        *      *     *   *
                                                                                                      section) than is required to establish
                                              ■ f. Adding a parenthetical authority                   entitlement to the regular aid and                    (Authority: 38 U.S.C. 5503(c))
                                              citation at the end of the section.                     attendance allowance, and in the                      [FR Doc. 2018–09736 Filed 5–7–18; 8:45 am]
                                                 The additions read as follows:                       absence of the provision of such higher               BILLING CODE 8320–01–P
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Document Created: 2018-05-08 01:31:19
Document Modified: 2018-05-08 01:31:19
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesEffective Date: This final rule is effective June 7, 2018.
ContactRoselyn Tyson, Regulations Staff (211D), Compensation Service, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461-9700. (This is not a toll-free telephone number.)
FR Citation83 FR 20735 
RIN Number2900-AP23
CFR AssociatedAdministrative Practice and Procedure; Claims; Disability Benefits; Health Care; Pensions; Radioactive Materials; Veterans and Vietnam

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