Claims Based on Aggravation of a Nonservice-Connected Disability

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AI42

Claims Based on Aggravation of a Nonservice-Connected Disability

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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

SUMMARY: The Department of Veterans Affairs (VA) is proposing to amend

its adjudication regulations concerning secondary service connection

for certain disabilities. This proposal is based on a recent decision

by the United States Court of Veterans Appeals (CVA). The intended

effect of this amendment is to conform VA regulations to the CVA

decision, which clarified the circumstances under which veterans may be

compensated for disabilities related to service-connected conditions.

DATES: Comments must be received by VA on or before August 4, 1997.

ADDRESSES: Mail or hand deliver written comments to: Director, Office

of Regulations Management, Room 1154, 810 Vermont Ave., NW.,

Washington, DC 20420. Comments should indicate that they are submitted

in response to ``RIN 2900-AI42.'' All written comments will be made

available for public inspection at the above address in the Office of

Regulations Management, Room 1158, between the hours of 8:00 a.m. and

4:30 p.m., Monday through Friday (except holidays).

FOR FURTHER INFORMATION CONTACT: Judith Veres, Consultant, Judicial

Review Staff, Compensation and Pension Service, Veterans Benefits

Administration, Department of Veterans Affairs, 810 Vermont Ave., NW.,

Washington, DC 20420, (202) 273-7240.

SUPPLEMENTARY INFORMATION: Under the provisions of 38 U.S.C. 1110 and

1131, VA may establish service connection for disabilities resulting

from disease or injury incurred or aggravated during a veteran's period

of active military, naval, or air service. Once service connection is

established for a veteran's disability, VA may authorize monetary

compensation depending on the disability's level of severity. In

addition, under 38 CFR 3.310, VA may establish service connection for a

disability which is proximately due to or the result of a service-

connected disease or injury.

In Allen v. Brown, 7 Vet. App. 439, 448 (1995), issued March 17,

1995, CVA held that, as a matter of law, when aggravation of a

veteran's nonservice-connected condition is proximately due to or the

result of a service-connected condition, the veteran is entitled to

compensation for the degree of disability (but only that degree) over

and above the degree of disability existing prior to aggravation. Prior

to CVA's holding, VA paid compensation for a disability on a secondary

basis only if the secondary condition was entirely caused by a service-

connected disability. To conform Sec. 3.310 to CVA's decision, VA is

proposing to amend 38 CFR 3.310 to authorize compensation for the

incremental increase in severity of a nonservice-connected disability

which is proximately due to or the result of a service-connected

condition.

In order to determine whether, and to what extent, a service-

connected disease or injury has aggravated a non service-connected

disability, VA must be able to determine the pre-aggravation severity

of the disability in question. We, therefore, propose to stipulate that

VA will not concede aggravation unless it has medical evidence, which

pre-existed the aggravation, sufficient to establish the pre-

aggravation severity of the condition. Since some conditions are

inherently progressive and worsen naturally over time, we propose to

specify that VA will not service-connect any increase in severity that

is due to natural progression. These requirements would be consistent

with the manner in which VA determines the degree of in-service

aggravation of pre-existing disabilities, i.e., by comparing the

severity of the condition when the veteran entered and left active

military

[[Page 30548]]

service and excluding from consideration any increase in severity that

is due to the natural progression of the condition. As with all other

disabilities evaluated for VA purposes, the level of compensation would

be determined under the provisions of VA's Schedule for Rating

Disabilities.

The Secretary hereby certifies that this regulatory amendment 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. The reason for this certification is that this

amendment would not directly affect any small entities. Only VA

beneficiaries could be directly affected. Therefore, pursuant to 5

U.S.C. 605(b), this amendment is exempt from the initial and final

regulatory flexibility analysis requirements of sections 603 and 604.

The Catalog of Federal Domestic Assistance program number is

64.109.

List of Subjects in 38 CFR Part 3

Administrative practice and procedure, Claims, Disability benefits,

Health care, Pensions, Radioactive materials, Veterans, Vietnam.

Approved: May 27, 1997.

Jesse Brown,

Secretary of Veterans Affairs.

For the reasons set out in the preamble, 38 CFR part 3 is proposed

to be amended as set forth below:

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 3.310 is amended by revising the section ledading; by

redesignating paragraph (b) as paragraph (c); and by adding a new

paragraph (b) to read as follows:

Sec. 3.310 Disabilities that are proximately due to, or aggravated

by, service-connected disease or injury.

* * * * *

(b) Aggravation of nonservice-connected disabilities. Any increase

in severity of a nonservice-connected disability that is proximately

due to or the result of a service-connected disease or injury, rather

than the normal progression of the disability, shall be service-

connected. However, VA will not concede that a nonservice-connected

disability was aggravated by a service-connected disease or injury in

the absence of medical evidence extant before the aggravation

sufficient to establish the pre-aggravation severity of the disability.

The rating activity will determine the pre- and post-aggravation levels

of severity under the Schedule for Rating Disabilities and determine

the extent of aggravation by deducting the pre-aggravation level of

severity, as well as any increase in severity due to the normal

progression of the disability, from the current level.

(Authority: 38 U.S.C. 1110 and 1131)

* * * * *

[FR Doc. 97-14509 Filed 6-3-97; 8:45 am]

BILLING CODE 8320-01-P