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###### Department of Veterans Affairs

          - 38 CFR Part 3 
          - RIN 2900-AN03 

# AGENCY:

Department of Veterans Affairs. 

# ACTION:

Final rule. 

      ( print page 11482)    

# SUMMARY:

This document amends the Department of Veterans Affairs (VA) adjudication regulations regarding special monthly compensation and compensation for paired organs. These amendments are necessary because the statutes on which the regulations are based have been amended. The intended effect of these amendments is to incorporate relevant statutory provisions from the Dr. James Allen Veteran Vision Equity Act of 2007. 

# DATES:

*Effective Date:*                         These amendments are effective March 18, 2009.                     

*Applicability Date:*                         This final rule will apply to applications for benefits filed with VA on or after December 26, 2007. This final rule will also apply to applications for benefits filed before December 26, 2007, but pending before VA as of December 26, 2007.                     

# FOR FURTHER INFORMATION CONTACT:

Gerald Johnson, Regulations Staff (211D), Compensation and Pension Service, Veterans Benefits Administration, Department of Veterans Affairs, 1800 G Street, NW., Washington, DC 20420, (202) 461-9727. 

# SUPPLEMENTARY INFORMATION:

Section 1114 of title 38, United States Code, prescribes the rates of compensation payable for service-connected disability, depending on the percentage disabilty rating assigned by VA or on the presence of various combinations of service-connected disabilities. One of the criteria for the rate of special monthly compensation prescribed by section 1114(o) was “service-connected total blindness with 5/200 visual acuity or less.” Section 101 of the Dr. James Allen Veteran Vision Equity Act of 2007, Public Law 110-157 (the Act), changed that threshold visual acuity of “5/200” to “20/200.” 

Section 1160(a) of title 38, United States Code, requires VA to pay compensation for certain combinations of service-connected and non-service-connected disabilities of paired organs or extremities as if both disabilities were service connected, provided the non-service-connected disability is not the result of the veteran's own willful misconduct. One of those combinations of disability was service-connected “blindness” in one eye and non-service-connected “blindness” in the other eye. Section 102 of the Act changed the word “blindness” to “impairment of vision” and added the criteria that the visual impairment in each eye be rated at visual acuity of 20/200 or less or that the peripheral field of vision for each eye be 20 degrees or less. 

Pursuant to the Act, this document amends 38 CFR 3.350, Special monthly compensation ratings, and 38 CFR 3.383, Special consideration for paired organs and extremities, to reflect the statutory changes. We are amending § 3.350(e)(1)(iii) by replacing “5/200” with “20/200.” We are amending § 3.383(a)(1) by replacing the word “blindness” in both places it appears with the term “impairment of vision” and adding the two additional statutory criteria. 

## Administrative Procedure Act 

Because these substantive amendments merely reflect statutory changes, this rulemaking is exempt from the notice-and-comment and delayed-effective-date requirements of 5 U.S.C. 553. Use of those procedures would be unnecessary and contrary to the public interest. 

## 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 initial and final regulatory flexibility analysis requirements of sections 603 and 604 of the Regulatory Flexibility Act, 5 U.S.C. 601-612, are not applicable to this rule because a notice of proposed rule-making is not required for this rule. Even so, the Secretary hereby certifies that this 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. This final rule would not affect any small entities. Only individual VA beneficiaries would be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this final 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 final rule 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 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 one year. This final 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 number and title for this rule is 64.109, Veterans Compensation for Service-Connected Disability. 

# List of Subjects in 38 CFR Part 3

      - Administrative practice and procedure
      - Claims
      - Disability benefits
      - Health care
      - Pensions
      - Radioactive materials
      - Veterans
      - Vietnam

Approved: February 24, 2009. 

John R. Gingrich, 

Chief of Staff, Department of Veterans Affairs. 

For the reasons stated in the preamble, the Department of Veterans Affairs amends 38 CFR Part 3 as set forth below: 

# 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. 

      ( print page 11483)    
§ 3.350 

2. Amend § 3.350(e)(1)(iii) by removing “5/200” and adding, in its place, “20/200”. 

3. Revise § 3.383(a)(1) and the sectional authority citation to read as follows: 

§ 3.383 

(a) * * * 

(1) Impairment of vision in one eye as a result of service-connected disability and impairment of vision in the other eye as a result of non-service-connected disability and 

(i) The impairment of vision in each eye is rated at a visual acuity of 20/200 or less; or 

(ii) The peripheral field of vision for each eye is 20 degrees or less. 

* * * * *

Authority:38 U.S.C. 501(a), 1160. 

 [FR Doc. E9-5862 Filed 3-17-09; 8:45 am] 

BILLING CODE 8320-01-P