Rule2023-28241
Exceptions to Applying the Bilateral Factor in VA Disability Calculations
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 27, 2023
Effective
December 27, 2023
Issuing agencies
Veterans Affairs Department
Abstract
The Department of Veterans Affairs (VA) adopts as final, without changes, an interim final rule that amended the regulation governing the bilateral factor for diseases and injuries of both arms, both legs, or paired skeletal muscles.
Full Text
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<title>Federal Register, Volume 88 Issue 247 (Wednesday, December 27, 2023)</title>
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[Federal Register Volume 88, Number 247 (Wednesday, December 27, 2023)]
[Rules and Regulations]
[Pages 89307-89309]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-28241]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 4
RIN 2900-AR51
Exceptions to Applying the Bilateral Factor in VA Disability
Calculations
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: The Department of Veterans Affairs (VA) adopts as final,
without changes, an interim final rule that amended the regulation
governing the bilateral factor for diseases and injuries of both arms,
both legs, or paired skeletal muscles.
DATES: Effective Date: This rule is effective December 27, 2023.
FOR FURTHER INFORMATION CONTACT: Howard McCuien, Jr., Regulations
Analyst, VA Schedule for Rating Disabilities (VASRD) Regulations Staff
(218A), Compensation Service, Veteran Benefits Administration,
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 April 14, 2023, VA published the interim
final rule in the Federal Register to allow VA adjudicators to exclude
certain disabilities that would be calculated using the bilateral
factor to determine the combined evaluation if, by their exclusion, a
higher combined evaluation can be achieved. See 88 FR 22914. VA
received one comment during the 60-day public comment period. The
commenter agreed with VA's amendment but offered two considerations for
how VA implements it.
[[Page 89308]]
I. Limiting Application of Regulation
The commenter expressed concern that application of the bilateral
factor rule may fail to maximize benefits at the 80 percent combined
evaluation level (in addition to the 90 percent level) and, in support
of this assessment, cited the decision of the United States Court of
Appeals for Veterans Claims (CAVC) in Wilburn v. McDonough, No. 22-
5577, 2023 WL 5217853 (Ct. Vet. App. Aug. 15, 2023). This commenter
suggested that since VA cannot guarantee that the anomaly described in
the interim final rule is limited to the 90 percent to 100 percent
range, VA should apply this systemic fix to all cases where the
bilateral factor has been or will be considered to ensure it has
complied with the duty to maximize benefits as described in Wilburn.
VA agrees that the application of the bilateral factor rule should
not be limited to 90 percent combined evaluations. While the interim
final rule stated that ``it is only at the low 90-percent level where
it may reduce a combined evaluation,'' VA has since determined that
there are limited scenarios where a combined 80-percent evaluation
could be increased to 90 percent. Nevertheless, the regulatory text of
the bilateral factor rule does not limit its application to only 90
percent combined evaluations but will apply whenever ``the combined
evaluation is lower than what could be achieved by not including one or
more bilateral disabilities in the bilateral factor calculation.'' See
38 CFR 4.26(d). Therefore, no changes to the regulatory text are
necessary, and the regulatory impact analysis of this final rule
reflects the additional Veterans who are eligible for increased
combined evaluations based on its application to Veterans at all
possible combination levels.
II. Liberalizing Law
The commenter also suggested that VA should retroactively apply
this regulatory amendment back to the original applicable effective
date for each Veteran rather than the effective date of the rulemaking
amending 38 CFR 4.26, which is April 16, 2023. Specifically, the
commenter contended that this regulatory amendment is not a
``liberalizing law'' because it does not bring about a substantive
change that creates a new or different entitlement as defined by
Spencer v. Brown, 17 F.3d 368, 372 (Fed. Cir. 1994). Instead, the
commenter asserted that this amendment merely clarifies the proper
application of the bilateral factor to both more accurately account for
the full disability picture and to comply with VA's duty to maximize
benefits. The commenter further asserted that any instance in the past
in which VA did not properly apply the bilateral factor (based on its
now clarified application) and did not maximize benefits was a clear
and unmistakable error; therefore, VA should correct this error back to
the date it originally occurred.
VA disagrees that this regulatory amendment merely clarified the
proper application of the bilateral factor rule and that previous
decisions were in error. The instructions for applying ``old'' 38 CFR
4.26 (hereinafter referred to as the ``prior bilateral factor rule'')
were unambiguously clear, and no clarification was necessary for
applying them. The prior bilateral factor rule stated that whenever
there was a partial disability or disabilities that affected both arms,
both legs, or paired skeletal muscles, those partial disabilities
``will be combined as usual, and 10 percent of this value will be added
(i.e., not combined) before proceeding with further combinations, or
converting to degree of disability.'' The prior bilateral factor rule
had no exceptions or other caveats that would have allowed claims
processers to forego combining all partial disabilities, and it used
the term ``will,'' indicating an obligation to perform. Additionally,
the prior bilateral factor rule did not include any provisions to
disregard its instructions if a higher evaluation could be assigned.
Conversely, there are many examples in 38 CFR part 4 of provisions that
allow claims processors to apply or disregard an instruction if doing
so results in a higher evaluation. One such example is note 2 of 38 CFR
4.118, DC 7801, Burn scar(s) or scar(s) due to other causes, not of the
head, face, or neck, that are associated with underlying soft tissue
damage. The note directs the claims processor to separately evaluate
each affected zone of the body and then combine each evaluation.
However, it also states that the claims processor may combine all of
the zones into a single evaluation if that would result in a higher
evaluation.
As such, this regulatory amendment was necessary to create an
exception to the application of the prior bilateral factor rule.
Because a regulatory amendment was necessary, retroactive application
of its provisions is limited by 38 U.S.C. 5110(g), which states, in
part, that ``the effective date of such award or increase (pursuant to
any Act or administrative issue) shall be fixed in accordance with the
facts found but shall not be earlier than the effective date of the Act
or administrative issue.''
In addition to the public comment, a different organization
identified the problem of certain Veterans receiving lower combined
evaluations due to the application of the prior bilateral factor rule
and brought it to VA's attention before VA published the interim final
rule on April 14, 2023. VA informed the organization that it was aware
of this problem and was drafting a regulation to address it. During
that discussion, the organization also inquired about whether VA could
employ equitable relief as a basis for retroactive application of this
regulatory amendment. VA has determined that it cannot apply equitable
relief based on the application of the prior bilateral factor rule.
Equitable relief provisions under 38 U.S.C. 503 only apply in cases
where VA has made an administrative error or an erroneous
determination. Since VA has always interpreted the use of the prior
bilateral factor rule as mandatory without exception, previous
evaluations using the prior bilateral factor rule were not in error.
Therefore, 38 U.S.C. 503 is not applicable. Furthermore, a clear and
unmistakable error finding likewise would not be authorized with regard
to claims already finally decided under the prior bilateral factor rule
because VA's decision would have been in accordance with the law as it
existed at the time the claim was decided.
While VA is committed to ensuring benefits are maximized to the
full extent of the law, retroactive application is not authorized in
this instance, as it is limited by statute and regulation. Accordingly,
VA makes no changes based on this comment.
Since VA makes no changes based on the comment received, this
document adopts as a final rule the interim final rule published in the
Federal Register on April 14, 2023, 88 FR 22914.
Administrative Procedure Act
VA has considered all relevant input and information contained in
the comment submitted in response to the interim final rule (88 FR
22914) and, for the reasons set forth above, has concluded that no
changes to the interim final rule are warranted. Accordingly, based
upon the authorities and reasons set forth in the interim final rule,
as supplemented by the additional reasons provided in this document in
response to the comment received, VA is adopting the provisions of the
interim final rule at 88 FR 22914 as a final rule without changes.
Executive Orders 12866, 13563 and 14094
Executive Order (E.O.) 12866 (Regulatory Planning and Review)
directs agencies to assess the costs and
[[Page 89309]]
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). E.O.
13563 (Improving Regulation and Regulatory Review) emphasizes the
importance of quantifying both costs and benefits, reducing costs,
harmonizing rules, and promoting flexibility. E.O. 14094 (Executive
Order on Modernizing Regulatory Review) supplements and reaffirms the
principles, structures, and definitions governing contemporary
regulatory review established in E.O. 12866 of September 30, 1993
(Regulatory Planning and Review), and E.O. 13563 of January 18, 2011
(Improving Regulation and Regulatory Review). The Office of Information
and Regulatory Affairs has determined that this rulemaking is not a
significant regulatory action under E.O. 12866, as amended by E.O.
14094. The Regulatory Impact Analysis associated with this rulemaking
can be found as a supporting document at <a href="http://www.regulations.gov">www.regulations.gov</a>.
Regulatory Flexibility Act (RFA)
The Regulatory Flexibility Act, 5 U.S.C. 601-612, is not applicable
to this rulemaking because notice of proposed rulemaking is not
required. 5 U.S.C. 601(2), 603(a), 604(a).
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any one year. This final rule will have no such effect on
State, local, and tribal governments, or on the private sector.
Paperwork Reduction Act (PRA)
This final rule contains no provisions constituting a collection of
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).
Assistance Listing
The Assistance Listing numbers and titles for the programs affected
by this document are 64.104, Pension for Non-Service-Connected
Disability for Veterans; 64.109, Veterans Compensation for Service-
Connected Disability; and 64.110, Veterans Dependency and Indemnity
Compensation for Service-Connected Death.
Congressional Review Act
Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
the Office of Information and Regulatory Affairs designated this rule
as not a major rule, as defined by 5 U.S.C. 804(2).
List of Subjects in 38 CFR Part 4
Disability benefits.
Signing Authority
Denis McDonough, Secretary of Veterans Affairs, signed and approved
this document on December 18, 2023, 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.
Luvenia Potts,
Regulation Development Coordinator, Office of Regulation Policy &
Management, Office of General Counsel, Department of Veterans Affairs.
0
For the reasons stated in the preamble, VA adopts as final the interim
final rule published on April 14, 2023, at 88 FR 22914.
[FR Doc. 2023-28241 Filed 12-26-23; 8:45 am]
BILLING CODE 8320-01-P
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</html>Indexed from Federal Register on December 27, 2023.
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