[Federal Register Volume 76, Number 22 (Wednesday, February 2, 2011)]
[Proposed Rules]
[Pages 5733-5734]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-2101]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AN64


Clothing Allowance

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 clothing allowances. The amendment 
would provide for annual clothing allowances for each qualifying 
prosthetic or orthopedic appliance worn or used by a veteran for a 
service-connected disability or disabilities that wears out or tears a 
distinct article of the veteran's clothing and for each physician-
prescribed medication used by a veteran for a skin condition that is 
due to a service-connected disability that affects a distinct 
outergarment. The amendment would also provide two annual clothing 
allowances if a veteran wears or uses more than one qualifying 
prosthetic or orthopedic appliance, physician-prescribed medication for 
more than one skin condition, or an appliance and a medication for a 
service-connected disability or disabilities and the appliances(s) or 
medication(s) together cause a single article of clothing to wear out 
faster than if affected by a single appliance or medication.

DATES: VA must receive comments on or before April 4, 2011.

ADDRESSES: Written comments may be submitted through http://www.Regulations.gov; by mail or hand-delivery to Director, Regulations 
Management (02REG), Department of Veterans Affairs, 810 Vermont Ave., 
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-AN64--Clothing Allowance.'' 
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 (FDMS) at http://www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Tom Kniffen, Chief, 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: Section 1162 of title 38, United States 
Code, authorizes VA to pay an annual clothing allowance to each veteran 
who, because of a service-connected disability, wears or uses a 
prosthetic or orthopedic appliance (including a wheelchair) which VA 
determines tends to wear out or tear the veteran's clothing or uses 
prescription medication for a skin condition that is due to a service-
connected disability which VA determines causes irreparable damage to 
the veteran's outergarments. VA had interpreted ``a clothing allowance 
* * * because of a service-connected disability'' in section 1162(1) 
and (2) and the word ``or'' between paragraphs (1) and (2) to mean that 
a veteran is entitled to only one annual clothing allowance, regardless 
of whether the veteran uses multiple qualifying appliances for more 
than one service-connected disability or uses a qualifying appliance 
for a service-connected disability and prescription medication for a 
skin condition resulting from a service-connected disability. In 
Sursely v. Peake, 551 F.3d 1351, 1356 (Fed. Cir. 2009), VA, based upon 
this statutory interpretation, rejected a claim for a second clothing 
allowance for ``independently qualifying orthopedic appliances 
affecting different articles of clothing.'' The United States Court of 
Appeals for the Federal Circuit (Federal Circuit) disagreed with VA's 
interpretation and stated that, ``by linking receipt of the benefit to 
a single qualifying appliance,'' Congress ``require[s]'' VA ``to pay 
multiple clothing allowances to a veteran who * * * uses multiple 
qualifying appliances.'' Id. and 1356 n.4. The Federal Circuit also 
rejected the United States Court of Appeals for Veterans Claims' 
conclusion that it would be ``irrational'' to permit multiple clothing 
allowances for use of multiple prosthetic appliances affecting a single 
article of clothing because under such circumstances the garment may 
wear out faster than if affected by a single appliance. Id. at 1357-58 
and 1358 n.6 (quoting 22 Vet. App. 21, 25-26 (2007)). However, the 
Federal Circuit noted that VA could promulgate regulations prohibiting 
multiple clothing allowances if ``damage to a single garment resulting 
from multiple prosthetic appliances is `overlapping.' '' Id. at 1358 
(quoting Esteban v. Brown, 6 Vet. App. 259, 262 (1994)).
    VA proposes to amend 38 CFR 3.810(a) to implement Sursely. VA would 
amend current Sec.  3.810(a)(1) so that it provides the criteria for 
entitlement to one annual clothing allowance currently set forth in 
Sec.  3.810(a)(1) and (2). We would also make a technical change in 
Sec.  3.810(a)(1)(i) by changing the reference to Sec.  3.326(c) to 
Sec.  3.326(b) to reflect a longstanding regulatory amendment. VA also 
would revise Sec.  3.810(a)(2) to provide the criteria for more than 
one annual clothing allowance where distinct garments are affected. New 
Sec.  3.810(a)(2) would state that a veteran is entitled to a clothing 
allowance for each prosthetic or orthopedic appliance or medication 
used by the veteran that satisfies the requirements of paragraph (1) of 
this subsection if each appliance or medication affects a distinct 
article of clothing or outergarment. This regulation is consistent with 
the Sursely holding that the veteran was entitled to a second clothing 
allowance ``for his independently qualifying orthopedic appliances 
affecting different articles of clothing.'' 551 F.3d at 1356.
    VA also recognizes, as the Federal Circuit did, that use of 
multiple qualifying appliances or medications may cause a single 
article of clothing to wear out faster, requiring replacement of the 
garment more frequently during the course of the year than if the 
garment were affected by only one appliance or medication. Id. at 1358 
n.6. VA therefore also proposes to provide in Sec.  3.810(a)(3) that a 
veteran is entitled to two annual clothing allowances if: (1) A veteran 
uses more than one qualifying prosthetic or orthopedic appliance, 
medication for more than one skin condition, or an appliance and a 
medication; and (2) the appliances(s) or medication(s) each satisfy the 
requirements of Sec.  3.810(a)(1) and together tend to tear or wear a 
single article of clothing or irreparably damage an outergarment at a 
faster rate, requiring replacement sooner than if the article of 
clothing or outergarment was affected by a single qualifying appliance 
or medication. In such circumstances, VA would provide two annual 
clothing allowances, rather than an allowance for each appliance or 
medication, because we believe that the wear and tear or irreparable 
damage caused by three or

[[Page 5734]]

more appliances and/or medications will overlap the increased rate of 
damage caused by the second appliance and/or medication on the garment. 
Id. at 1358.

Paperwork Reduction Act

    The collection of information under the Paperwork Reduction Act (44 
U.S.C. 3501-3521) referenced in this proposed rule has an existing OMB 
approval as a form. The form is VA Form 10-8678, Application for Annual 
Clothing Allowance (Under 38 U.S.C. 1162), OMB approval number 2900-
0198. No changes are made in this proposed rule to the collection of 
information.

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 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), 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.
    The economic, interagency, budgetary, legal, and policy 
implications of this proposed rule have been examined and it has been 
determined to be a not significant regulatory action under the 
Executive Order.

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 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 proposed rule are 64.013, Veterans Prosthetic 
Appliances; 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, approved this document on January 19, 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.

    Approved: January 26, 2011.
Robert C. McFetridge,
Director, Regulations Policy and Management, 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

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. Revise Sec.  3.810(a) to read as follows:


Sec.  3.810  Clothing allowance.

    (a) Except as provided in paragraph (d) of this section, a veteran 
who has a service-connected disability, or a disability compensable 
under 38 U.S.C. 1151 as if it were service connected, is entitled, upon 
application therefore, to an annual clothing allowance, which is 
payable in a lump sum, as specified in this paragraph.
    (1) One Clothing Allowance. A veteran is entitled to one annual 
clothing allowance if--
    (i) A VA examination or hospital or examination report from a 
facility specified in Sec.  3.326(b) establishes that the veteran, 
because of a service-connected disability or disabilities due to loss 
or loss of use of a hand or foot compensable at a rate specified in 
Sec.  3.350(a), (b), (c), (d), or (f), wears or uses one qualifying 
prosthetic or orthopedic appliance (including a wheelchair) which tends 
to wear or tear clothing; or
    (ii) The Under Secretary for Health or a designee certifies that--
    (A) A veteran, because of a service-connected disability or 
disabilities, wears or uses one qualifying prosthetic or orthopedic 
appliance (including a wheelchair) which tends to wear or tear 
clothing; or
    (B) A veteran uses medication prescribed by a physician for one 
skin condition which is due to a service-connected disability and which 
causes irreparable damage to the veteran's outergarments.
    (2) More Than One Clothing Allowance; Distinct Garments Affected.
    A veteran is entitled to an annual clothing allowance for each 
prosthetic or orthopedic appliance or medication used by the veteran if 
each appliance or medication--
    (i) Satisfies the requirements of paragraph (a)(1) of this section; 
and
    (ii) Affects a distinct article of clothing or outergarment.
    (3) Two Clothing Allowances; Single Garment Affected. A veteran is 
entitled to two annual clothing allowances if a veteran uses more than 
one prosthetic or orthopedic appliance, medication for more than one 
skin condition, or an appliance and a medication, and the appliance(s) 
or medication(s)--
    (i) Each satisfy the requirements of paragraph (a)(1) of this 
section; and
    (ii) Together tend to wear or tear a single article of clothing or 
irreparably damage an outergarment at a faster rate than if affected by 
one qualifying appliance or medication.
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[FR Doc. 2011-2101 Filed 2-1-11; 8:45 am]
BILLING CODE 8320-01-P