Examinations

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AH48

Examinations

AGENCY: Department of Veterans Affairs.

ACTION: Interim final rule.

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SUMMARY: This document amends the Department of Veterans Affairs (VA)

adjudication regulations concerning compensation and pension claims

filed by veterans, surviving spouses, or parents. This changes the

language for authorizing VA examinations by providing that a VA

examination will be authorized where there is a well-grounded claim for

disability compensation but where the medical evidence accompanying the

claim is not adequate for rating purposes. This more accurately

reflects statutory language and caselaw requirements concerning such VA

examinations.

DATES: The effective date of this interim final rule is October 11,

1995. Comments must be received on or before December 11, 1995.

ADDRESSES: Mail written comments to: Director, Office of Regulations

Management (02D), Department of Veterans Affairs, 810 Vermont Avenue

NW., Washington, DC 20420, or hand-deliver written comments to: Office

of Regulations Management, Room 1176, 801 Eye Street NW., Washington,

DC 20001. Comments should indicate that they are in response to ``RIN

2900-AH48.'' All written comments received will be available for public

inspection in the Office of Regulations Management, Room 1176, 801 Eye

Street NW., Washington, DC 20001, between the hours 8:00 a.m. and 4:30

p.m., Monday through Friday (except holidays).

FOR FURTHER INFORMATION CONTACT: Paul Trowbridge, Consultant,

Regulations Staff, Compensation and Pension Service, Veterans Benefits

Administration, 810 Vermont Avenue NW., Washington, DC 20420, (202)

273-7210.

SUPPLEMENTARY INFORMATION: For many years VA regulations provided that

a compensation claim could not be rated without a current VA

examination, or a report deemed to be the equivalent of a VA

examination. In general, hospital reports (government or private) were

deemed to be VA examinations if otherwise adequate for rating purposes,

but private physicians' reports were not.

On July 14, 1994, VA published a final rule in the Federal Register

(59 FR 35851) amending 38 CFR 3.326 to permit acceptance of a private

physician's statement for the purpose of rating claims for increased

compensation due to the increased severity of service-connected

disabilities. A private physician's statement, however, was still not

acceptable for rating an original compensation claim.

On November 2, 1994, the Veterans' Benefits Improvements Act of

1994, Pub. L. 103-446, was signed into law. Section 301 of Pub. L. 103-

446 underscored the Secretary of Veterans Affairs' discretionary

authority to accept the report of a private physician's examination

that is otherwise adequate for rating purposes to establish entitlement

to any compensation or pension benefit. A final rule enabling the

Secretary to exercise that discretionary authority was published on May

24, 1995 in the Federal Register (60 FR 27409). That final rule amended

38 CFR 3.326(d) as well as Secs. 3.157, 3.327, and 3.352.

Previously, paragraph (a) of Sec. 3.326 indicated that a VA

examination would be authorized where the reasonable probability of a

valid claim was indicated in any compensation or pension claim filed by

a veteran, surviving spouse, or parent, whether an original or reopened

claim or a claim for increase. This document revises paragraph (a) to

state that a VA examination will be authorized where there is a ``well-

grounded claim'' for disability compensation or pension but where the

medical evidence accompanying the claim is not adequate for rating

purposes. We believe this will not cause a substantial change in the

criteria for authorizing VA examinations; however, this change is made

to more accurately reflect statutory language and caselaw requirements

concerning such VA examinations.

The Court of Veterans Appeals has held that scheduling a VA

examination may be required as part of VA's duty to assist the claimant

under 38 U.S.C. 5107(a), and that the duty to assist attaches when a

claim is well-grounded, i.e., when the claim is plausible, meritorious

on its own, or capable of substantiation. See, e.g., Betties v. Brown,

6 Vet. App. 333, 336 (1993).

The amendments made by this document do not affect the provisions

already in the place that require former prisoners of war to be

afforded a complete examination at a VA hospital

[[Page 52864]]

or outpatient clinic prior to any rating action denying monetary

benefits.

Also, nonsubstantive changes are made to delete provisions that no

longer apply and to simply and clarify other provisions.

Under 5 U.S.C. 553 there is a basis for dispensing with prior

notice and comment and for dispensing with a 30-day delay of the

effective date since the interim rule consists of VA policy and is

interpretive in nature.

The Secretary hereby certifies that this interim 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 (RFA), 5

U.S.C. 601-612. The interim final rule would not directly affect any

small entities. Only VA beneficiaries could be directly affected.

Therefore, pursuant to 5 U.S.C. 605(b), the interim final rule is

exempt from the initial and final regulatory flexibility analysis

requirements of sections 603 and 604.

The Catalog of Federal Domestic Assistance program numbers are

64.100, 64.104, 64,105, 64.106, 64.109, and 64.110.

List of Subjects in 38 CFR Part 3

Administrative practice and procedure, claims, Health care,

Individuals with disabilities, Pensions, Veterans.

Approved: July 31, 1995.

Jesse Brown,

Secretary, Veterans Affairs.

For the reasons set forth in the preamble, 38 CFR part 3 is amended

as follows:

PART 3--ADJUDICATION

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

Compensation

1. The authority citation for part 3, subpart A continues to read

as follows:

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

2. Section 3.326 is revised to read as follows:

Sec. 3.326 Examinations.

For purposes of this section, the term examination includes periods

of hospital observation when required by VA.

(a) Where there is a well-grounded claim for disability

compensation or pension but medical evidence accompanying the claim is

not adequate for rating purposes, a Department of Veterans Affairs

examination will be authorized. This paragraph applies to original and

reopened claims as well as claims for increase submitted by a veteran,

surviving spouse, parent, or child. Individuals for whom an examination

has been scheduled are required to report for the examination.

(b) Provided that it is otherwise adequate for rating purposes, any

hospital report, or any examination report, from any government or

private institution may be accepted for rating a claim without further

examination. However, monetary benefits to a former prisoner of war

will not be denied unless the claimant has been offered a complete

physical examination conducted at a Department of Veterans Affairs

hospital or outpatient clinic.

(c) Provided that it is otherwise adequate for rating purposes, a

statement from a private physician may be accepted for rating a claim

without further examination.

(Authority: 38 U.S.C. 5107(a))

[FR Doc. 95-25129 Filed 10-10-95; 8:45 am]

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