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###### Department of Veterans Affairs

          - 38 CFR Part 3
          - RIN 2900-AN28

# AGENCY:

Department of Veterans Affairs.

# ACTION:

Proposed rule.

# 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 § 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 § 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:
    - 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)       ( print page 14601)      
    - 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:

 ○ The veteran served at least 180 days (or 90 days if a veteran of the Gulf War era), and

 ○ 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

 ○ Application for treatment is received within 180 days of discharge, and

 ○ A VA dental examination is completed within six months after discharge or release, unless delayed through no fault of the veteran.

                     ○                     **Note:**                     Treatment under Class II is limited to a one-time correction of service-connected noncompensable dental conditions.                
    - Who have a service-connected noncompensable dental condition or disability adjudicated as resulting from combat wounds or service trauma (Class II(a)).
    - 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)).
    - Who are former prisoners of war, as determined by the concerned military service department (Class II(c)).
    - Who have a nonservice-connected dental disability professionally determined to be aggravating a service-connected medical condition (Class III).
    - Who are rated totally disabled due to service-connected disability (either a 100 percent schedular evaluation or entitled to individual unemployability) (Class IV).
    - 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).
    - 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:
    - To determine whether the veteran has a compensable service-connected disability (subject to service connection for compensation purposes).
    - To determine whether the veteran has a service-connected condition for which compensation is not payable.
    - To determine whether there is dental disability due to combat wounds or service trauma.
    - To determine prisoner of war status.
    - 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                           ( print 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 § 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:

§ 3.381 

(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 § 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 § 17.161 of this chapter. These conditions and other dental conditions or disabilities that are noncompensably rated under § 4.150 of this chapter may be service connected for purposes of Class II or Class II(a) dental treatment under § 17.161 of this chapter.

* * * * *

[FR Doc. 2011-6148 Filed 3-16-11; 8:45 am]

BILLING CODE 8320-01-P