Automobile or Other Conveyance and Adaptive Equipment Certificate of Eligibility for Veterans or Members of the Armed Forces With Amyotrophic Lateral Sclerosis

AGENCY:

Department of Veterans Affairs.

ACTION:

Interim final rule.

SUMMARY:

The Department of Veterans Affairs (VA) is amending its adjudication regulation regarding certificates of eligibility for financial assistance in the purchase of an automobile or other conveyance and adaptive equipment. The amendment authorizes automatic issuance of a certificate of eligibility for financial assistance in the purchase of an automobile or other conveyance and adaptive equipment to all veterans with service-connected amyotrophic lateral sclerosis (ALS) and members of the Armed Forces serving on active duty with ALS.

DATES:

Effective Date: This interim final rule is effective February 25, 2015.

Comment Date: Comments must be received by VA on or before April 27, 2015.

Applicability Date: The provisions of this regulatory amendment apply to all applications for a certificate of eligibility for an automobile or other conveyance and adaptive equipment allowance pending before VA on or received after February 25, 2015.

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 Ave. 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-AP26—Automobile or Other Conveyance and Adaptive Equipment Certificate of Eligibility for Veterans or Members of the Armed Forces With Amyotrophic Lateral Sclerosis Connected to Military Service.” 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:

Randy A. McKevitt, Legal Consultant, Regulations Staff (211D), Compensation Service, Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461-9700. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION:

In a document published in the Federal Register on December 20, 2011 (76 FR 78823), VA amended its regulations pertaining to the percent disability evaluation assignable for service-connected amyotrophic lateral sclerosis (ALS). As of January 19, 2012, the effective date of that amendment, 38 CFR 4.124a, diagnostic code 8017, provides a 100-percent disability evaluation for veterans with service-connected ALS. VA determined that assigning a 100-percent evaluation in all cases eliminates the need to unnecessarily reevaluate veterans with ALS repeatedly over a short period of time as the condition worsens and inevitably progresses to total disability. The change was necessary to adequately compensate veterans who suffer from this progressive, untreatable, and fatal disease. However, the change did not specifically address entitlement to certificates of eligibility for financial assistance in the purchase of an automobile or other conveyance and adaptive equipment.

Section 3901(1), title 38, United States Code (U.S.C.), provides specific criteria for determining eligibility for an automobile and adaptive equipment allowance. To be eligible for an automobile and adaptive equipment allowance, a veteran must be in receipt of compensation under chapter 11 of title 38 U.S.C. for (or a member of the Armed Forces serving on active duty must have) loss or permanent loss of use of one or both feet; loss or permanent loss of use of one or both hands; permanent impairment of vision of both eyes with central visual acuity of 20/200 or less in the better eye with the use of corrective glasses or central visual acuity of more than 20/200 if there is a field defect in which the peripheral field has contracted to such an extent that the widest diameter of visual field subtends an angular distance no greater than twenty degrees in the better eye; or a severe burn injury. 38 U.S.C. 3901(1). These disabilities must be the result of an injury incurred or disease contracted in or aggravated by active military, naval, or air service. Id.

VA's automobile and adaptive equipment allowance eligibility regulation, 38 CFR 8.808 Automobiles or other conveyances and adaptive equipment; certification, which was promulgated to implement 38 U.S.C. 3901 and 3902, includes the same criteria for entitlement to a certificate of eligibility as 38 U.S.C. 3901. Because ALS is a rapidly progressive, totally debilitating, and irreversible disease, VA has determined that progression of ALS will routinely, and quickly, satisfy these existing certificate of eligibility criteria. This interim final rule permits VA to determine entitlement to a certificate of eligibility for an automobile or other conveyance and adaptive equipment as soon as a veteran establishes service connection for ALS, or a member of the Armed Forces serving on active duty is diagnosed with ALS, eliminating the need for additional development and reducing wait times. By streamlining the eligibility process, this regulatory amendment will allow veterans with service-connected ALS and members of the Armed Forces serving on active duty with ALS to receive and utilize to maximum advantage the automobile or other conveyance and adaptive equipment benefit, without unnecessary delay.

From the standpoint of entitlement to a certificate of eligibility for automobile or other conveyance and adaptive equipment qualification procedures, the effect of this regulatory amendment is to allocate resources more efficiently and ensure a better lifestyle for veterans with service-connected ALS and members of the Armed Forces serving on active duty with ALS who want to purchase and adapt an automobile or other conveyance and adaptive equipment so they can remain mobile as long as possible. In this regard, as the ALS progresses, the need for assistive devices adapting an automobile or other conveyance and adaptive equipment so that the veteran or member of the Armed Forces serving on active duty can continue to be mobile, including attending examinations and treatment by medical personnel, while remaining in their home for as long as possible, will be greatly assisted. Without these benefits, a veteran or member of the Armed Forces serving on active duty may be required to be institutionalized sooner than otherwise necessary to receive medical treatment.

Thus, there exists an immediate need for VA to focus this regulatory change upon the entitlement for a certificate of eligibility for automobile or other conveyance and adaptive equipment process. Because the prognosis of the progression of ALS is typically established after a brief period of observation, in most cases less than 3 months, VA has determined that it is fair and reasonable to provide a certificate of eligibility for automobile or other conveyance and adaptive equipment upon determination of service connection for ALS in a veteran or on diagnosis and receipt of an application from a member of the Armed Forces serving on active duty.

VA, therefore, intends to establish entitlement for a certificate of eligibility for automobile or other conveyance and adaptive equipment eligibility for eligible veterans with service-connected ALS and members of the Armed Forces serving on active duty with ALS. VA is doing so by adding a new provision to 38 CFR 3.808, which governs eligibility for entitlement for a certificate of eligibility for automobile or other conveyance and adaptive equipment under 38 U.S.C. 3901 and 3902. This new provision adds ALS as a qualifying disability for eligibility to this benefit and will allow eligible individuals to access this benefit without further development and delay. VA incorporates this new category of criteria in § 3.808 as new paragraph (b)(5). Current paragraph (b)(5) will be redesignated as paragraph (b)(6).

Administrative Procedure Act

Pursuant to 5 U.S.C. 553(b)(B) and (d)(3), we find that there is good cause to dispense with advance public notice and opportunity to comment on this rule and good cause to publish this rule with an immediate effective date. This interim final rule is necessary to implement immediately the Secretary's decision to establish entitlement for a certificate of eligibility for automobile or other conveyance and adaptive equipment for all veterans with service-connected ALS and members of the Armed Forces serving on active duty with ALS. Delay in the implementation of this rule would be impracticable and contrary to the public interest, particularly to veterans and members of the Armed Forces serving on active duty.

Because the survival period for persons suffering from ALS is generally 18-48 months or less from the onset of symptoms, any delay in establishing entitlement for a certificate of eligibility for automobile or other conveyance and adaptive equipment eligibility is extremely detrimental to veterans and members of the Armed Forces serving on active duty who are currently afflicted with ALS. Any delay in implementation until after a public-comment period could delay modifying the regulated certificate of eligibility process, depriving ALS veterans and members of the Armed Forces serving on active duty with ALS of quick and efficient access to automobile or other conveyance and adaptive equipment benefits.

For the foregoing reasons, the Secretary is issuing this rule as an interim final rule with immediate effect.

Paperwork Reduction Act

This interim final rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

Regulatory Flexibility Act

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, 5 U.S.C. 601-612. This interim final rule will not affect any small entities. Only VA beneficiaries will be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this interim final rule is exempt from the final regulatory flexibility analysis requirements of section 604.

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,” which requires 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 the 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 FYTD.

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 1 year. This interim final rule will have no such effect on State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance

The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are 64.100, Automobiles and Adaptive Equipment for Certain Disabled Veterans and Members of the Armed Forces and 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. Jose D. Riojas, Chief of Staff, approved this document on February 12, 2015, for publication.

List of Subjects in 38 CFR Part 3

• Administrative practice and procedure
• Claims
• Disability benefits
• Health care
• Pensions
• Veterans

For the reasons set out in the preamble, VA amends 38 CFR part 3 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. Amend § 3.808 by redesignating paragraph (b)(5) as paragraph (b)(6) and adding a new paragraph (b)(5) to read as follows: