[Federal Register Volume 76, Number 52 (Thursday, March 17, 2011)]
[Proposed Rules]
[Pages 14600-14602]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-6148]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AN28


Dental Conditions

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its 
adjudication regulations regarding service connection of dental 
conditions for treatment purposes. The regulations currently state 
several principles governing determinations by VA's Veterans Benefits 
Administration (VBA) of service connection of dental conditions for the 
purpose of establishing eligibility for dental treatment by VA's 
Veterans Health Administration (VHA). We propose to clarify that those 
principles apply only when VHA requests information or a rating from 
VBA for those purposes. The amendments are to clarify existing 
regulatory provisions and to reflect the respective responsibilities of 
VHA and VBA in determinations concerning eligibility for dental 
treatment.

DATES: Comments must be received by VA on or before May 16, 2011.

ADDRESSES: Written comments may be submitted through 
www.Regulations.gov; by mail or hand-delivery to Director, Regulations 
Management (02REG), Department of Veterans Affairs, 810 Vermont Avenue, 
NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026. 
(This is not a toll-free number.) Comments should indicate that they 
are submitted in response to ``RIN 2900-AN28--Dental Conditions.'' 
Copies of comments received will be available for public inspection in 
the Office of Regulation Policy and Management, Room 1063B, between the 
hours of 8 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 at 
www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Tom Kniffen, Regulations Staff (211D), 
Compensation and Pension Service, Veterans Benefits Administration, 
Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 
20420, (202) 461-9725. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: VA's adjudication regulation regarding 
service connection of dental conditions for treatment purposes, 38 CFR 
3.381, identifies circumstances under which dental conditions that may 
not qualify as disabilities for purposes of VA disability compensation 
may nevertheless be service connected for purposes of VA dental 
treatment under 38 U.S.C. 1712 and 38 CFR 17.161. Because VHA has 
primary responsibility for determining eligibility for dental 
treatment, VBA will prepare a rating decision under Sec.  3.381 only 
when VHA requests such a rating or information necessary to assist in 
its determination. This circumstance is not clearly stated in the 
current regulation. Accordingly, we propose to amend Sec.  3.381 to 
state this requirement.
    VA's statute and regulation regarding dental conditions, 38 U.S.C. 
1712 and 38 CFR 17.161, contain the eligibility requirements for dental 
treatment. Eligibility for dental treatment is extremely limited. VHA 
will provide certain dental treatment to veterans:
    <bullet> Who have a service-connected compensable dental condition 
(i.e., those subject to service connection for compensation purposes 
under the 9900 diagnostic code series) (Class I)

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    <bullet> Who have a service-connected noncompensable dental 
condition (not subject to compensation) shown to have been in existence 
at the time of discharge or release from active service, which took 
place after September 30, 1981 (Class II), if:
     [cir] The veteran served at least 180 days (or 90 days if a 
veteran of the Gulf War era), and
     [cir] The veteran's DD214 does not bear certification that the 
veteran was provided, within 90 days immediately prior to discharge or 
release, a complete dental examination (including dental x-rays) and 
all appropriate dental treatment indicated by the examination to be 
needed, and
     [cir] Application for treatment is received within 180 days of 
discharge, and
     [cir] A VA dental examination is completed within six months after 
discharge or release, unless delayed through no fault of the veteran.
     [cir] Note: Treatment under Class II is limited to a one-time 
correction of service-connected noncompensable dental conditions.
    <bullet> Who have a service-connected noncompensable dental 
condition or disability adjudicated as resulting from combat wounds or 
service trauma (Class II(a)).
    <bullet> Who are homeless or are otherwise enrolled veterans who 
are eligible for a one-time course of dental care under 38 U.S.C. 2062 
(Class II(b)).
    <bullet> Who are former prisoners of war, as determined by the 
concerned military service department (Class II(c)).
    <bullet> Who have a nonservice-connected dental disability 
professionally determined to be aggravating a service-connected medical 
condition (Class III).
    <bullet> Who are rated totally disabled due to service-connected 
disability (either a 100 percent schedular evaluation or entitled to 
individual unemployability) (Class IV).
    <bullet> Who are approved for vocational rehabilitation training 
under 38 U.S.C. chapter 31 and who require dental treatment to 
participate in training (Class V).
    <bullet> Who are scheduled for admission or otherwise receiving 
care and services under 38 U.S.C. chapter 17 if dental care is 
reasonably necessary to the provision of such care and services, i.e., 
a dental condition is complicating a medical condition currently under 
treatment. (Examples: patients scheduled for cardiac surgery, knee, 
hip, joint replacement surgery, or organ transplant surgery may receive 
pre-bed care to eliminate dental infection prior to their surgery and 
help insure successful medical treatment) (Class VI).
    VHA will usually be able to determine eligibility for dental 
treatment without referral to VBA. However, VHA shall request 
information or a rating from VBA in the following circumstances:
    <bullet> To determine whether the veteran has a compensable 
service-connected disability (subject to service connection for 
compensation purposes).
    <bullet> To determine whether the veteran has a service-connected 
condition for which compensation is not payable.
    <bullet> To determine whether there is dental disability due to 
combat wounds or service trauma.
    <bullet> To determine prisoner of war status.
    <bullet> To determine whether the veteran is totally disabled due 
to service-connected disability.
    VHA may submit a request for a rating for eligibility for treatment 
for any dental condition. However, consistent with the qualifying 
conditions and the limitations of eligibility under 38 CFR 3.381 and 38 
CFR 17.161, VBA would deny any claim that does not qualify for VHA 
dental treatment, including any claim for treatment of periodontal 
disease or calculus, unless the condition meets regulatory eligibility 
criteria.
    If the veteran files a claim for disability compensation that 
includes as an issue a compensable dental condition under the rating 
schedule criteria, VBA would prepare a rating and notify VHA. If a 
veteran has not filed a claim for disability compensation, but goes to 
a VHA dental clinic requesting treatment, VHA will request a 
determination from VBA when needed to address the issues described 
above affecting eligibility under Class I, Class II, Class II(a), Class 
II(c), or Class IV. Furthermore, VHA is responsible for notifying the 
veteran of their eligibility determination.
    When a veteran submits a claim for dental treatment directly to a 
VBA regional office, VBA will not provide a rating, but instead VBA 
will refer the claim to the VHA outpatient clinic, which is responsible 
for such claims.
    Therefore, we propose to redesignate paragraphs (a) through (f) as 
paragraphs (b) through (g) and to add a new paragraph (a) that explains 
the situations when VHA will refer a claim to VBA. We also propose to 
amend redesignated paragraph (b) to clarify what conditions will be 
service connected for treatment purposes. Additionally, we propose to 
remove the following sentence from redesignated paragraph (c): ``When 
applicable, the rating activity will determine whether the condition is 
due to combat or other in-service trauma, or whether the veteran was 
interned as a prisoner of war.'' This sentence is being removed because 
it is repetitive of portions of proposed paragraph (a).

Paperwork Reduction Act

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

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed 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 proposed rule would not affect any small entities. 
Only certain VA beneficiaries could be directly affected. Therefore, 
pursuant to 5 U.S.C. 605(b), this proposed rule is exempt from the 
initial and final regulatory flexibility analysis requirements of 
sections 603 and 604.

Executive Order 12866

    Executive Order 12866 directs agencies to assess all 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, 
and other advantages; distributive impacts; and equity). The Executive 
Order classifies 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 the Executive 
Order.
    VA has examined the economic, interagency, budgetary, legal, and 
policy implications of this regulatory action and has concluded that it 
is not a significant regulatory action under Executive Order 12866.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that

[[Page 14602]]

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 given 
year. This proposed rule would have no such effect on State, local, and 
tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance Numbers and Titles

    The Catalog of Federal Domestic Assistance program numbers and 
titles for this rule are 64.011, Veterans Dental Care; 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. John R. 
Gingrich, Chief of Staff, Department of Veterans Affairs, approved this 
document on March 9, 2011, 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: March 11, 2011.
William F. Russo,
Director of Regulations Management, Office of the General Counsel, 
Department of Veterans Affairs.
    For the reasons set out in the preamble, VA proposes to amend 38 
CFR part 3 as follows:

PART 3--ADJUDICATION

    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 Sec.  3.381 by:
    a. Redesignating paragraphs (a) through (f) as paragraphs (b) 
through (g).
    b. Adding new paragraph (a).
    c. Revising redesignated paragraph (b).
    d. Removing from redesignated paragraph (c) the following sentence: 
``When applicable, the rating activity will determine whether the 
condition is due to combat or other in-service trauma, or whether the 
veteran was interned as a prisoner of war.''
    The addition and revision read as follows:


Sec.  3.381  Service connection of dental conditions for treatment 
purposes.

    (a) The Veterans Benefits Administration (VBA) will adjudicate a 
claim for service connection of a dental condition for treatment 
purposes after the Veterans Health Administration determines a veteran 
meets the basic eligibility requirements of Sec.  17.161 of this 
chapter and requests VBA make a determination on questions that 
include, but are not limited to, any of the following:
    (1) Former Prisoner of War status;
    (2) Whether the veteran has a compensable or noncompensable 
service-connected dental condition or disability;
    (3) Whether the dental condition or disability is a result of 
combat wounds;
    (4) Whether the dental condition or disability is a result of 
service trauma; or
    (5) Whether the veteran is totally disabled due to a service-
connected disability.
    (b) Treatable carious teeth, replaceable missing teeth, dental or 
alveolar abscesses, and periodontal disease are not compensable 
disabilities, but may nevertheless be service connected solely for the 
purpose of establishing eligibility for outpatient dental treatment as 
provided for in Sec.  17.161 of this chapter. These conditions and 
other dental conditions or disabilities that are noncompensably rated 
under Sec.  4.150 of this chapter may be service connected for purposes 
of Class II or Class II(a) dental treatment under Sec.  17.161 of this 
chapter.
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[FR Doc. 2011-6148 Filed 3-16-11; 8:45 am]
BILLING CODE 8320-01-P