Federal Register / Vol. 76, No. 22 / Wednesday, February 2, 2011 / Proposed Rules 5733 

Dated: January 27, 2011. 

Kathryn A. Sinniger, 

Chief, Office of Regulations and 

Administrative Law. 

[FR Doc. 2011–2222 Filed 2–1–11; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 3 

RIN 2900–AN64 

Clothing Allowance 

AGENCY: Department of Veterans Affairs. 

ACTION: Proposed rule. 

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 serviceconnected 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 handdelivery 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 serviceconnected 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 serviceconnected 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 § 3.810(a)(1) so 

that it provides the criteria for 

entitlement to one annual clothing 

allowance currently set forth in 

§ 3.810(a)(1) and (2). We would also 

make a technical change in 

§ 3.810(a)(1)(i) by changing the reference 

to § 3.326(c) to § 3.326(b) to reflect a 

longstanding regulatory amendment. VA 

also would revise § 3.810(a)(2) to 

provide the criteria for more than one 

annual clothing allowance where 

distinct garments are affected. New 

§ 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 

§ 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 § 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 

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5734 Federal Register / Vol. 76, No. 22 / Wednesday, February 2, 2011 / Proposed Rules 

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 § 3.810(a) to read as follows: 

§ 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 § 3.326(b) establishes that 

the veteran, because of a serviceconnected disability or disabilities due 

to loss or loss of use of a hand or foot 

compensable at a rate specified in 

§ 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 serviceconnected 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 serviceconnected 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. 

* * * * * 

[FR Doc. 2011–2101 Filed 2–1–11; 8:45 am] 

BILLING CODE 8320–01–P 

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